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CCPC Minutes 07/19/2007 R July 19,2007 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida July 19,2007 LET IT BE REMEMBERED, that the Collier County Planning Commission in and for the County of Collier, having conducted business herein, met on this date at 8:30 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Mark Strain Lindy Adelstein Donna Reed Caron Tor Kolflat Paul Midney Robert Murray Brad Schiffer Robert Vigliotti Russell Tuff ALSO PRESENT: Jeffrey Klatzkow, Assistant County Attorney Kay Deselem, Zoning & Land Dev. Review Page 1 AGENDA COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, JULY 19,2007, IN THE BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDING, COUNTY GOVERNMENT CENTER, 3301 TAMIAMI TRAIL EAST, NAPLES, FLORIDA: NOTE: INDIVIDUAL SPEAKERS WILL BE LIMITED TO 5 MINUTES ON ANY ITEM. INDIVIDUALS SELECTED TO SPEAK ON BEHALF OF AN ORGANIZATION OR GROUP ARE ENCOURAGED AND MAY BE ALLOTTED 10 MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN. PERSONS WISHING TO HAVE WRITTEN OR GRAPHIC MATERIALS INCLUDED IN THE CCPC AGENDA PACKETS MUST SUBMIT SAID MATERIAL A MINIMUM OF 10 DAYS PRIOR TO THE RESPECTIVE PUBLIC HEARING. IN ANY CASE, WRITTEN MATERIALS INTENDED TO BE CONSIDERED BY THE CCPC SHALL BE SUBMITTED TO THE APPROPRIATE COUNTY STAFF A MINIMUM OF SEVEN DAYS PRIOR TO THE PUBLIC HEARING. ALL MATERIAL USED IN PRESENTATIONS BEFORE THE CCPC WILL BECOME A PERMANENT PART OF THE RECORD AND WILL BE A V AILABLE FOR PRESENTATION TO THE BOARD OF COUNTY COMMISSIONERS IF APPLICABLE. ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE CCPC 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. I. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY CLERK 3. ADDENDA TO THE AGENDA 4. PLANNING COMMISSION ABSENCES 5. APPROVAL OF MINUTES - JUNE 7, 2007, REGULAR MEETING 6. BCC REPORT- RECAPS - JUNE 12,2007, REGULAR MEETING; JUNE 22, 2007, GMP SPECIAL MEETING 7. CHAIRMAN'S REPORT 8. ADVERTISED PUBLIC HEARINGS A. Petition: CU-2006-AR- 10925, Basil Street Partners, LLC, represented by Clay Brooker, Esq., of Cheffy, Passidomo, Wilson & Johnson, LLP, requesting a Conditional Use (CU) for a passive recreational structure in the Agricultural (A) zoning district, as specified in Section 2.04.03 of the Collier County Land Development Code (LDC). The subject property, consisting of 4.32 acres, is located at 10111 and 10121 Keewaydin Island, in Section 14, Township 51 South, Range 25 East, Collier County, Florida. (Coordinator: John-David Moss) RE-ADVERTlSED FROM 6/21107 9. OLD BUSINESS 10. NEW BUSINESS - The CCPC will reconvene at 5:05 pm for a special hearing of the proposed moratorium. II. PUBLIC COMMENT ITEM 12. DISCUSSION OF ADDENDA 13. ADJOURN 7/19/07 cepe AgendaJRB/sp 1 July 19, 2007 CHAIRMAN STRAIN: Good morning, everyone. Welcome to the July 19th meeting of the Collier County Planning Commission. If you'll all please rise for the pledge of allegiance. (Pledge of Allegiance was recited in unison.) Item #2 ROLL CALL BY THE CLERK CHAIRMAN STRAIN: Thank you. We'll start with the roll call by our secretary. COMMISSIONER CARON: Mr. Kolflat? COMMISSIONER KOLFLA T: Here. COMMISSIONER CARON: Mr. Schiffer? COMMISSIONER SCHIFFER: Here. COMMISSIONER CARON: Mr. Midney? COMMISSIONER MIDNEY: Here. COMMISSIONER CARON: Ms. Caron is here. Mr. Strain? CHAIRMAN STRAIN: Here. COMMISSIONER CARON: Mr. Adelstein? COMMISSIONER ADELSTEIN: Here. COMMISSIONER CARON: Mr. Murray? COMMISSIONER MURRAY: Here. COMMISSIONER CARON: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Present. COMMISSIONER CARON: And Mr. Tuff'? COMMISSIONER TUFF: Here. Item #3 ADDENDA TO THE AGENDA Page 2 July 19,2007 CHAIRMAN STRAIN: Okay, addenda to the agenda -- first off, I'd like to make an announcement. There was some discussion I saw in fliers in the community about this meeting this morning being also the one for the discussion of the moratorium. I want to assure you, that's going to occur at 5:05 tonight. So if you're here for that issue, you'll be waiting here a long time. So it would be better to come back this evening. And that will be a separate meeting; it won't be part of this one. Addenda to the agenda. I believe there's an addition requested by Michelle Mosca to talk to us about scheduling a concurrency discussion with the representatives of the school system. And we'll add that under new business. And then I understand Ms. Caron, did you have something you wanted to add? COMMISSIONER CARON: Yes, under new business as well. CHAIRMAN STRAIN: You want to give us a heads up on what it is? COMMISSIONER CARON: Oh, yes. Possible inclusion in the LDC cycle of some language to -- some vegetation protection language for listed species nest trees. CHAIRMAN STRAIN: Okay. That will be on after advertised public hearing. Any other addenda to the agenda? (No response.) Item #4 PLANNING COMMISSION ABSENCES CHAIRMAN STRAIN: Okay, planning commission absences. Next week -- well, let's just start with this afternoon at 5:05. Is Page 3 July 19,2007 everybody planning to come back here at 5:05 today? Paul, you're just going to kind of hang out for the day or are you going to drive all the way back to Immokalee? COMMISSIONER MIDNEY: No, I'm going to stay with some friends in Naples. CHAIRMAN STRAIN: Are you? Good. I'd hate to see you have to drive that far twice. Okay, so it looks like we certainly have a quorum. As we get into tonight's meeting and we have our first break, we'll probably discuss at that time how long we want to take the meeting till. Then the next meeting that we have of this board is on the 25th of July, which is next week. And that one would be at 5:05, and it was for an LDC hearing, our first one for this 2007 cycle. Is everybody planning to make that? Looks like that's a yeah. And then the one after that is the August 2nd meeting of our standard first Thursday of the month meeting with our regular cases. Anybody know if they're going to be able to make that? Okay, good. We won't go any further until the 2nd. Item #5 APPROVAL OF MINUTES - JUNE 7, 2007 REGULAR MEETING Approval of the minutes from June 7th, 2007 regular meeting. Don't all rush and say recommend approval. COMMISSIONER VIGLIOTTI: I make a motion to approve. COMMISSIONER ADELSTEIN: I'll second. CHAIRMAN STRAIN: Motion made by Commissioner Vigliotti, seconded by Commissioner Adelstein. Discussion? (No response.) Page 4 July 19,2007 CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER KOLFLA T: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER CARON: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MURRAY: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. Item #6 BCC REPORT-RECAPS- JUNE 12,2007 REGULAR MEETING; JUNE 22, 2007 GMP SPECIAL MEETING And Ray usually gives us our BCC reports. Are you prepared to do that, Kay? MS. DESELEM: Yes. CHAIRMAN STRAIN: Great. Thank you. MS. DESELEM: We had four cases that had been heard on June 12th. Gaspar Station was continued to October 23rd. CHAIRMAN STRAIN: You might need that speaker a little closer. MS. DESELEM: Okay, is that better? CHAIRMAN STRAIN: Yes. MS. DESELEM: Okay, sorry. Gaspar Station PUD was continued to October 23rd. The Boxwood PUD was continued to July 26th -- I'm sorry, June 26th. Page 5 July 19,2007 And even though those minutes won't be approved until Tuesday, that particular petition was approved. It's reflected in the recap. The Pine Ridge mixed use center was approved, as was the Rinker Concrete plant at Silver Strand. Item #7 CHAIRMAN'S REPORT CHAIRMAN STRAIN: Okay. Thank you. Chairman's report. Don't really have anything today. Item #8A PETITION: CU-2006-AR-10925 So we'll move on to the advertised public hearing. There is only one hearing today, and it's on the Petition C. It's a conditional use petition, 2006-AR-I0925, Basil Street Partners, LLC, for a passive recreational structure on Keewaydin Island. All those wishing to testify on behalf of this petition, please rise to be sworn in by the court reporter. (Speakers were duly sworn.) CHAIRMAN STRAIN: Are there disclosures on the part of planning commissioners? And we'll start with Mr. Tuff on the left. COMMISSIONER TUFF: I had contact from Tony Pires' office and got a packet from him. And there have been e-mails that were in the -- that we all got. CHAIRMAN STRAIN: Okay. And by the way, as we speak today, it's important we bring the mics close to us. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I had a conversation by phone Page 6 July 19,2007 with Mr. Clay Brooker. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Mr. Brooker sought to have a meeting with me, and I declined. Mr. Pires sent a packet. CHAIRMAN STRAIN: Okay. Mr. Adelstein? COMMISSIONER ADELSTEIN: I had a meeting with Mr. Brooker by phone. CHAIRMAN STRAIN: Okay. And I had a meeting with Mr. Conroy and a gentleman by the name of lP, and Tony Pires. I received an e-mail from Jack Conroy with a letter that was attached, and an e-mail from The Conservancy, Jeannie Fisher, with a letter attached. And both letters were objecting to this case. I also received the typical book from Tony Pires, which is up here, for whatever purpose. I think we all received it. And I had a meeting with the applicant, his representatives -- actually Charlie Thomas, Clay Brooker and John Passidomo too, and they discussed their issues in the case. So I've had it from both sides. Ms. Caron? COMMISSIONER CARON: Yeah, I had a meeting with Clay Brooker and John Passidomo and a representative for Basil Street. I had a meeting with Tony Pires and a couple of Keewaydin landowners. I had a phone conversation -- after a letter from The Conservancy, I had a phone conversation with Nicole Ryan. I've had a couple of other letters and e-mails.Andyes.Mr. Pires' book. CHAIRMAN STRAIN: Okay. Mr. Midney? COMMISSIONER MIDNEY: E-mails and the packet. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Myself, I got the Pires packet, e-mails, and I had a phone conversation with Clay Brooker over the septic thing. CHAIRMAN STRAIN: Mr. Kolflat? Page 7 July 19,2007 COMMISSIONER KOLFLA T: I had a meeting with Clay Brooker; I received a packet from Tony Myers (sic); I also received several e-mails. CHAIRMAN STRAIN: Thank you. Okay, that's as thorough as I think we can get for now. Mr. Brooker, are you making the presentations on behalf'? MR. BROOKER: Yes, sir. CHAIRMAN STRAIN: Okay, sir, it's all yours. MR. BROOKER: Good morning, Commission. My name is Clay Brooker. I'm with the law firm of Cheffy' Passidomo, Wilson and Johnson. We represent the petitioner, Basil Street Partners, in this petition. I'd like to -- we've already heard some of the names. The representative is Mr. Charles Thomas here, he's the director of Planning and Development for the petitioner. John Passidomo, a named partner with Cheffy-Passidomo. Our environmental consultant is Mr. Tim Hall here with Turrell, Hall and Associates. Tim has expertise in wildlife ecology and wetland ecosystems. His projects have taken him across the nation and the world. Our architect is Frank Comeriato, with the local Dyehouse Comeriato firm. Frank has extensive experience in the design and planning of coastal structures. And then our wastewater engineer is Mr. David Sneed, a professional engineer with Coleman Engineering. I always have very bad luck with technology, but I've tried to put things on the CD so there's not papers flying all around. But rest assured, I have the paper backup in case the computer crashes on me, which it has done in the past. As you all know, this is the second version of this project. The first proposal was filed back in 2005. We withdrew that proposal before it got to the Board of County Commissioners. It went through Page 8 July 19, 2007 the EAC and CCPC public hearing process, and there were several-- many comments and concerns raised, not only by yourselves but also by the EAC. We took those comments and concerns to heart. There were a lot of difficult questions that were answered. And we weren't satisfied with the answers we could give, frankly, at that time. So we went back to the drawing board to try to attempt to address each and every one of those questions and concerns. The proposal before you today is drastically reduced from what you saw almost nearly exactly one year ago, just shy -- I guess one day shy of a year ago we were before the planning commission. The proposed beach shelter is a minimalist structure, designed simply to allow visitors a brief respite from the weather. The proposal will alter just a small fraction of the overall property, and it offers an unprecedented comprehensive regulatory scheme designed to preserve the environmental integrity not only to property but also of Keewaydin Island. The environmental controls we are offering the property owner are unmatched by any other private property owner on the island. What I'd first like to show you is an aerial photograph of Keewaydin Island. The island itself, and I'm showing it here by the little hand on the screen, is approximately eight miles long. According to the property appraiser's website, there are about 100 parcels or lots on the island. A little more than half of those 100 are owned privately. The remainder is owned by the state or various divisions or departments of the state. Although the state owns a little less than half of the platted lots on the island, the mass that the state owns approximates about 75 percent of the island. Starting here in the north, if I could just make -- the reason I'm going through this a little bit is because I got some questions and people -- it became apparent to us that people didn't really understand July 19, 2007 what's going on -- what the island looks like, what's going on out there. Starting here at the very north end, and just to give you a little bit of context right here, this is Naples Bay, Gordon's Pass, Port Royal, Dollar Bay, and then the intercoastal waterway winding down. Keewaydin Island is here. The very northern tip of Keewaydin Island is a privately owned what's commonly referred to as the Donahue estate. Then for the next approximate four miles as you head south, all of this is owned by the state. It's owned and protected and held in trust for the public enjoyment and recreation ofthe residents of the State of Florida. The red line there, which is roughly about halfway, midpoint of the eight-mile long island, is the subject property. And then as you begin to move further south from there, you hit more of the private property owners. These are the private property lots here. The state owns several lots interspersed throughout here, but it is -- I would venture primarily this is the area where the private property lots are located. And of course at the very end, at the very southern tip, the white area here, that is the southern tip of Keewaydin Island where we know a lot of boaters go on weekends and holidays. I'd like to focus in and comment quickly on the private lots. Roughly half of those private lots, anywhere from 20 to 25 of them, already have some sort of building or structure on them. The existing homes out there are by and large not your little campy structures, nor are they your average house in Collier County. They are by and large again sizeable luxury entertainment venues, valued in the multi million dollar range, which can host guests, parties, events, weddings and fundraisers. By way of example, the last house that was permitted by Collier County on Keewaydin Island was roughly about eight months ago, iti Page 10 July 19, 2007 was permitted down there in the middle of the southern half, I'll call it, of the island. And according to the Collier County's building permit records, this was a three-bedroom, four-bathroom house, 4,824 square feet, powered by a generator with a septic tank and a well for their water usage. And by the way, that is the typical setup in terms of power and utilities. There are none provided by the county to the island. Everyone must be self-sufficient, meaning generator, well and septic system. Currently there are several homes and lots on the island for sale. The asking prices of the homes on -- that are for sale on Keewaydin Island range from about 1.2 million to $12 million. The $12 million listing is located near the south end. It is roughly a 5,000 square foot home. The listing advertises the home as a Keewaydin Island home as quote, lots of room for entertaining and which has, quote, hosted several weddings and professional sport fishermen. In addition to the main house, this Keewaydin Island Estate includes a caretakers quarters, tiki bar and service buildings. The point here I'm trying to make is that the homes on the island, the existing uses placed to the island are not your simple frugal beach camps. They serve as luxury entertainment estates for the privileged few. So as we went back to the drawing board to address the concerns raised over our initial proposal, we did so in a comparative way. We did a comparative analysis to whatever we were going to come back with to what could go out there as a matter of right. This is in fact two -- the subject property is two platted lots. And as a matter of right, we can build two single-family homes on that private property. So what we did was we asked our consultants to draw up just a hypothetical two single-family home development on the subject property, the two lots. Page 11 July 19, 2007 Under the code, this is ST designated land; the entire Keewaydin Island is special treatment designated land. And the code limits alteration of property to 10 percent of your property, the private property out there. So applying that code provision to this, we come up with about 19,000 square feet ofthis property which could be altered under the code, or about 9,500 square feet per lot. This is -- what I'm showing to you is a hypothetical typical single-family -- two single-family home, I should say, layout. What is shown here is two -- anywhere from 3,500 to 4,500 square foot homes with three to four bedrooms each. Each of these would be powered by a generator, obviously, and each would have its own dock, a boardwalk through the mangroves, and each would have its own septic system and drain field. The code has no limitations on events, parties, fundraisers, which we know occur out there, on these private properties, or the number of people that can visit it at anyone time. Based on existing listings out there today, these houses, these hypothetical homes, would have asking prices of approximately three to four and a half million each. So by way of comparison, we believe when you look at this and you look at the impacts that would be created by this two single- family home development, which is permitted as of right, we believe our proposal is better environmentally from both a procedural and a substantive perspective. Procedurally this two single-family home development does not have to go through the public hearing process we're in right now. So, therefore, there'd be no meaningful opportunity for public input or evaluation of the impacts to the island that this house could and would cause to the island. Instead, these homes would be approved simply by the administrative process, a building permit. Our proposal is better for the island substantively as well. What is shown here in the red is what we are proposing in terms Page 12 July 19, 2007 of building on the property. This is the beach shelter structure proposed. It is only 816 square feet. When combined with the boardwalk, this means that we'll be altering just five percent of the entire property. There is no possibility for future expansion. That was a major concern we heard last year. And The Conservancy requested that we place a conservation easement over everything. If you recall, the initial proposal we wanted to reserve the right, if need be, in the future to expand to possibly 4,500 square feet. The Conservancy objected to that. They wanted a conservation easement over everything so no expansion could occur in the future. And we have agreed to do that. Everything you see in blue, and then including in that -- well, let me just finish the sentence. Everything you see in blue will be placed under a conservation easement. That is our offer, not required by the county regulations, but that is our offer. What you see here in yellow is simply a temporary construction area that after construction is finished that will also be included in the conservation easement as well. This conservation easement that we're offering to in perpetuity conserve and preserve the property would be recorded over approximately 90 percent of our private property. The entire shelter structure, along with the boardwalk, will be elevated two to three feet, and visitors must use the boardwalk when on-site, except when they're on the beach. And what that does is it basically keeps foot traffic off the ground and it allows wildlife to either jump over the boardwalk or climb underneath it. The shelter will be screened. There's no air conditioner, there's no kitchen, there's no refrigerator, there's no appliances, there's none of that. We will have two restrooms, but they will not have shower facilities. That was in the proposal last time; we've eliminated that. We do have one outdoor pedestal shower to wash off the saltwater if Page 13 July 19,2007 someone goes into the water, into the Gulf. The shelter will not be open at night and therefore the property will not be lighted. But we do want to reserve the right to place some sort of security lighting there, if need be, as security concerns arise. And in the event lights are required under those circumstances, they would comply with all the sea turtle regulations. The only lights planned at this point in time will be for each of the two restrooms. Commissioner Caron, I believe last year you asked me are there going to be any lights. And I didn't think there were going to be any lights in the bathroom, but now I'm told building code has to have a small light, even though we're going to be there only in the daytime for each bathroom. And those lights we're planning on now powering them by solar panels, which will be connected to some sort of antenna structure on the side of the building up high. Water will be supplied via collection of rain water runoff into a cistern. The cistern is located right on the north side of the proposed shelter. And because of the average rainfall amount that the area gets, we also are reserving the right to bring water out by vessel and supplement it with the water rain-off; literally pump it into the cistern to make sure we have adequate water. The wastewater system will be an anaerobic septic tank system. Power will be by generator. And the generator location is currently planned here, all the way to the right of your screen. It will be enclosed in a sound attenuated shed-like structure, a generator house, and will also be muffled for noise control. The daily operational rules: We've reduced the amount of -- the number of people that would be able to visit that we'd be able to bring out to the island at anyone time from 56, was our initial proposal. Now we're at 20. Access will be by club-owned vessel only. This is not a shuttle with regularly scheduled trips out to the property. Instead this vessel will be available on a reservation request basis only. And no members Page 14 July 19,2007 can arrive by private vessels. Private vessels are not allowed to dock up to our dock structure, or you're not allowed to come onto our property after arriving by private vessel. You have to come through us. That was one of the suggestions made by Nancy Payton of Florida Wildlife Federation, so we would be able to better control the people out on the property -- the number of people, I should say. The shelter will be reasonably locked and secured when no visitors are on-site. By that we mean the restrooms are going to be locked. And we are contemplating lockable gates at each end of the boardwalk so people can't -- that would just serve as a deterrent. It's not going to be the perfect security measure, but it will be a deterrent to allow people to come on our property whenever they wish. And of course that would trespassing. But the shelter itself will be locked. Beach chairs, umbrellas will not be provided by the club. However, members if they'd like can bring their own. Alcohol is permitted on the private property, as it is on other private properties on the island. But any member who does have alcohol will be advised that the alcohol cannot go beyond our north and south beach property boundaries. That property is state owned and alcohol is not permitted on state-owned property. There will be no pets permitted, no motorized vehicles allowed, no firework displays, no boat races, and perhaps more importantly, no special events. That was a major concern last time, special events. It was an untangible concept, people couldn't figure out the various different things that could be done and how you are going to control a special event, so we've eliminated the possibility of having any special events. The number of people on the property is going to be 20 at all times. Well, possible number of people will be 20 at all times. We will run the facility as a pack-in, pack-out facility, meaning all trash will be removed from the site on a daily basis, or whenever the site is visited. We anticipate there's going to be many days where Page 15 July 19,2007 the site doesn't even open during the day. Trash cans will be made available. They will be secured when the site is closed. And we have agreed to do a beach cleanup every time we have a staff person out there. They will do a beach cleanup 100 yards north and south of our property lines. Our cooperation with Rookery Bay continues. There's really no difference in that regard. You've seen all the documents in your package. Rookery Bay will have 24/7 access to the site. The rules and regulations, not only are they submitted as part of this conditional use approval petition, but they'll also be memorialized in restrictive covenant in agreement with DEP/Rookery Bay. Those documents, without going into too much detail right now, they include a penalty schedule if we violate the rules. A monitoring program to monitor the number of visitors, the amount of trash, wildlife sightings and so forth, that's going to be worked out with Rookery Bay what they want us to look for and how all that is facilitated. And also an educational program, including an educational kiosk inside the beach shelter itself. Again, all materials, all educational materials must be approved in advance by Rookery Bay. Keith Laakkonen is here from DEP, or the Rookery Bay Natural Estuarine Research Reserve, and he is available to answer any questions you may have of him. So the highlights of the differences, and we believe they are significant between the initial and revised proposals: Number one, we are one-third the size. Number two, we have no possibility of ever expanding. Number three, we are roughly one-third the people. There are no private vessels permitted and no regularly scheduled shuttle. You have to come to the property through us or you don't come at all. And finally, no special events are permitted. Based upon these changes and these reductions we've made, we are pleased to inform you that as a result of them and meetings with Page 16 July 19,2007 Nancy Payton and Brad Cornell, the Florida Wildlife Federation and the Collier Audubon Society have withdrawn their opposition to this proposal. Florida Wildlife Federation has actually said that this project now deserves an environmental green star. Weare here seeking conditional use approval. And there are criteria in the Land Development Code that we must comply with in order to meet and have the conditional use approved. The first of those is consistency with the LDC, the Land Development Code and the Growth Management Plan. Your own staff has already given its opinion that we are in fact consistent with both of those documents, we believe we're consistent with both of those documents, and in addition to that, we believe we actually implement the Growth Management Plan, which is a difference from just being merely consistent. We actually implement it. I'd like to show you a few excerpts from the CCME, the Conservation Coastal Management Element, of the Growth Management Plan. First is Objective 2.4. And I've highlighted here, that Collier County shall continue taking a coordinated and cooperative approach with the DEP regarding environmental planning, management and monitoring programs for Rookery Bay. We've taken that a step further. DEP/Rookery Bay is not just being cooperative, they are actually having active participation in this role -- or with this petition. The next three provisions I want to show you come out of Goal 10 of the CCME. Goal 10 is the goal which addresses the conservation management and use of coastal barrier islands and shore lines. Policy 10.1.1 states that, the priorities for water dependent and water related uses on coastal barrier islands and shore lines shall -- it's not discretionary -- shall be public recreational facilities over private recreational facilities. Page 17 July 19,2007 So the number one priority is recreational facilities for Keewaydin Island, according to the Growth Management Plan. Number nine on the list is residential development. Objective 10.3, undeveloped coastal barriers shall be maintained predominantly in their natural state. What we are proposing to you is 90 percent of the property conserved forever pursuant to a conservation easement and a proposal which alters just five percent of that. In comparison to a single-family home development, which there will be two single-family homes, as I've showed you, our proposal is far better, it is far more consistent with maintaining predominantly the natural state of Keewaydin Island than residential development. And finally, Policy 10.5.1, again right out of Goal 10 that deals with coastal barriers, recreation that is compatible with the natural functions of beaches and dunes is the highest and best land use. Not residential development on coastal barriers, recreation. What we are proposing to you is recreation with a comprehensive environmental scheme to control the impacts. That scheme not being existent with a two single-family home development and which is unmatched by any other private property owner on Keewaydin Island. And with that, I'll conclude. A lot of this I know is repetitive from what you saw last year. But there are significant differences, and we thought it was prudent for us to point out what goes on, what is out there already on the island, what goes on out there already on the island, what can be built as a matter of right, and why this proposal is better. And the comparative analysis I believe undisputedly shows that what we are proposing is in line with the environmental stewardship of Keewaydin Island and is in fact dictated by the Growth Management Plan. And with that, I'll conclude. I'll attempt to answer any questions you may have. And I'd also like to reserve time after public speakersh Page 18 July 19,2007 to rebut. CHAIRMAN STRAIN: That's fine. Okay, do we want -- I'm sorry, did you want questions of your presentation now? MR. BROOKER: I'm open to however you'd like to proceed. CHAIRMAN STRAIN: Why don't we start with you and then we'll go into -- because I certainly, as you know my conversation with you, I want the dock situation addressed at some point. So Mr. Murray? COMMISSIONER MURRAY: Good morning, Mr. Brooker. MR. BROOKER: Good morning. COMMISSIONER MURRAY: You pointed out that the highest and best use, based on the 10.5, whatever it is, the public facilities use has priority over -- at the bottom was residential. Yes, that's it there, 10.1.1. I'm a little confused under A, public recreational facilities or for private recreational facilities. Are you saying that you're a public recreational facility? MR. BROOKER: No. COMMISSIONER MURRAY: Oh. So really, it remains a private recreational facility; does it not? MR. BROOKER: Yes, which is number two on the priority list. COMMISSIONER MURRAY: Yeah. Okay, the other thing, was there any thought to giving -- because I'm still fascinated by a dock that still has potential to invite motorists to tie up and come on the property, trespassing though they might be. Although if they belong to a club, I'm not sure how that can be construed as trespassing. If they decide to put their boat there, they may have some violation of some regulations or rules, but I'm not sure that trespassing would apply. Is any thought given to putting a gate there at that dock to prevent anybody from accessing the use of that dock? Page 19 July 19,2007 MR. BROOKER: Yes, that's part of our proposal. And not only will there be a gate placed there, but it will be locked at all times. Meaning even when a staff member brings club members to the site to enjoy the beach, he will unlock the gate, let the people in and lock the gate behind them. COMMISSIONER MURRAY: No, I didn't make myself clear, Sir. I meant at the dock. MR. BROOKER: That's where. COMMISSIONER MURRAY: Okay. MR. BROOKER: I mean, there will be at the dock end -- on the boardwalk there towards the dock end we will be installing a gate. COMMISSIONER MURRAY: Okay, thank you. Those are my questions. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Yes, Clay, one question. In the -- or a couple of questions. In the drawings we saw, there is no drawing of the first floor. So what is on there, essentially a screened-in entrance to the stairway system? Lindy's having trouble hearing me. I'll say it again. There's no drawing of what's on the first floor, so my concern is, is obviously it's the same size as the second floor, but there's no functions down there. MR. BROOKER: Using that on the screen, you'll see, yeah, all it's going to be is open deck space. Down below, in conjunction with the stairway to get up to the second floor, which will be screened in, but the first floor will not be screened in, if that answers your question. COMMISSIONER SCHIFFER: In our packet, it refers to this as a 2,925 square foot passive recreation facility. Essentially it's really limited to the 816 square foot footprint of the building, right, so what is that number from the -- MR. BROOKER: I don't know. And frankly, that was -- Page 20 July 19, 2007 CHAIRMAN STRAIN: Clay, that was an error. That was left over from the first submittal in '06, almost one year to the day of today. That's the same number that was used in the staff report. Looks like when they reprinted the report they forgot to change that one number. MR. BROOKER: So on the record, 2,925 was the precise number we were proposing for square footage last year, and that is no longer the case; the number is 816 square feet. COMMISSIONER SCHIFFER: Per level. And there's going to be two levels? MR. BROOKER: Well, 816 square feet of what we'll call habitable space that is screened in, correct. But it will be a two-level structure to meet with I believe it's flood regulations or something along those lines. COMMISSIONER SCHIFFER: And just explain a little bit how the people are going to come out by boat. There will be some sort of a vessel with 20 people on it, or -- and here's my concern. Twenty people go on the island. Will 20 -- will the boat go back and get 20 more and then drop off that 20 and take the other 20 back? Or how's that going to work? MR. BROOKER: We don't anticipate having a boat that would enable 20 members to be on it at anyone given time. I believe that's getting into a tonnage -- a captain's requirement for the captain of that vessel, which is probably -- well, I know is beyond what we are anticipating. So the informal discussions we've had in-house, we're looking at a vessel that carries five or six people at a time, takes them out to the island, and then in the event there's others that want to come out there, we will deal with that, either by taking the vessel back or having another vessel bring out, but at all times monitoring, making sure that at no time do we exceed 20 people that we had brought to the island at anyone point in time. Page 21 July 19,2007 COMMISSIONER SCHIFFER: And last question. In your Exhibit C, which is your conditional use narrative, you have one phrase at the bottom is, the petitioner has never agreed to request an expansion of the shelter footprint except to comply with local, state or federal law. I mean, is that a crack, or what do you really mean by that? What could cause the building to be required to be bigger? MR. BROOKER: We don't even -- we're not sure. But the one thing that came to mind right away and which was the genesis of that language was for some reason if an ADA disability requirement all of a sudden required us to build some sort of structure on this beach house or beach shelter to allow disabled people to use it and that would actually increase the square footage by a small bit, we wouldn't want to be then held in violation of our conditional use. So it wasn't meant to be any sort of crack, loophole or anything like that. Just if federal regulations change, we're going to have to comply with federal regulations, and we would want the flexibility to be able to do that. COMMISSIONER SCHIFFER: I mean, you have designed this to be accessible. MR. BROOKER: That is correct, under current law. COMMISSIONER SCHIFFER: But you're not saying if you're reviewing this design that you show us and it turns out the bathrooms have to be bigger, you're going to make the building bigger. You could make your enclosed area smaller. So, I mean, can you lock into that 816 and not have a problem with that? MR. BROOKER: Yes. COMMISSIONER SCHIFFER: All right, thank you. I'm done, thanks. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLAT: Clay, you didn't mention anything about a conditional use expiration or sunsetting. A conditional use generally runs with the land, I believe. Or are you Page 22 July 19,2007 proposing there will also be some kind of a termination time in which that it could be re-reviewed? MR. BROOKER: Yes, the -- and thank you for reminding me. I neglected to mention, the staff recommendations at the back, the staff report, and there has been one revision to them, I believe, that was carried on July 3rd from planner to the planning commission. But No. 14 of the staff conditions is a condition that requires us to come back before the Board of County Commissioners -- and we are in agreement with this, we think it's a good idea. It requires us to come back before the Board of County Commissioners if we have violated anything, no matter how major or minor. And at that point in time the BCC would have the right to tweak the rules, if they'd like, or in the event that we have shown that we are simply unable, regardless of our good intentions, to comply with this, and there are significant and persistent violations, then they can revoke our conditional use approval. That would occur at a point in time three years after C.O. So we get our C.O., we have a three-year kind of test period. If there have been any violations in that three-year period, we are called back before the Board of County Commissioners. They then review our conduct. Ifin fact they determine that some sort of tweaking or revision to the conditions is required, then they have the power to do so. If they find that we have either significant or persistent record of violations, they have the power to revoke. And we are in agreement with that condition. COMMISSIONER KOLFLAT: So ifit doesn't work the way it's planned to work, the county can revoke it in a period of time? MR. BROOKER: Correct. COMMISSIONER KOLFLA T: One other question. I spoke with you in a meeting about the rainfall. We have about 55 inches annual rainfall here. And when you calculate that out to the area of the roof, which is the collector for the rain, it only comes up with Page 23 July 19, 2007 about 75 gallons of water a day over the year. And yet you're talking about a usage of 150 gallons. Do you plan to supplement that deficit of75 gallons by pump or from boats, or how are you going to make up that deficit? MR. BROOKER: Because we know it can get dry in the area, we are reserving the right to bring water out by vessel. The vessel will then stop at the dock. The dock will have underneath it a small pipe system tucked up underneath the boardwalk, not lying on the ground, but tucked up underneath the boardwalk, and a pump will be attached to it whereby we can pump water from that vessel into the cistern for storage. So then that way we are supplementing any deficiency that may exist based -- as a result of just insufficient rainfall. COMMISSIONER KOLFLAT: You also mentioned that you're going to use solar power for the lights in the bathroom, yet you're going to have generator on the site there to generate other electricity needs, correct? MR. BROOKER: Correct. COMMISSIONER KOLFLA T: Why do you want to put the solar panels up rather visually and not very desirable in appearance and not use the generator to power those two light bulbs? MR. BROOKER: Well, I guess that's a good question, because these lights are not going to draw a lot of energy. But one of the major issues that arose in the first round was the generator, the noise from it and how much power are you going to need to run this shelter. And so we were doing everything we could to eliminate power draws from it. COMMISSIONER KOLFLA T: Yeah, but you clutter the site with the visual panels that are not very attractive. MR. BROOKER: And I guess from that standpoint we are trying to minimize the generator size. And I'm not an expert on that. But in -- you know, maybe what we can do is just say that the solar panel will be an option. If in fact it's unsightly or unworkable, unfeasible, Page 24 July 19, 2007 then we'll simply power those two small lights in the restrooms by the generator. COMMISSIONER KOLFLAT: Well, it seems to me that it's used as an environmental buzzword, solar power. Everyone seems to jump on that and think that environmentally safe. MR. BROOKER: Right. COMMISSIONER KOLFLAT: That's all the questions I had at the moment, Mark. CHAIRMAN STRAIN: Mr. Adelstein? COMMISSIONER ADELSTEIN: Before you came to us today, you went before the Environmental Advisory Council? MR. BROOKER: Yes, sir. COMMISSIONER ADELSTEIN: And that was on May 7th. MR. BROOKER: Yes, sir. COMMISSIONER ADELSTEIN: And how was your result there and what did they do? MR. BROOKER: The vote was a recommendation of denial, 9-0. COMMISSIONER ADELSTEIN: Fine. Do you want to explain why they turned it down, or are you just going to leave it there? MR. BROOKER: IfI had a crystal ball and could see in everyone's head, I guess that would be an easy question to answer. But I will say that several members of the EAC complimented us for listening to their concerns and coming back to them and giving them what they asked for. In the end, we thought momentum shifted, because Mr. Pires brought up before the EAC some website materials, some marketing materials which reflected our old proposal, which still showed, for example, beach chairs and umbrellas would be provided by the club. Those are obviously obsolete. We just had not gotten around to updating them. I can tell you that within a matter very quickly after that EAC Page 25 July 19,2007 meeting, I instructed the client to remove that website material, or to correct, update any marketing materials to the best of his ability. Does that mean there might be some obsolete materials from a year or two still floating around? Sure. But they're obsolete. On top of that, they all have their legal disclaimers that they're subject to governmental approvals. Finally, in the event that there's some sort of marketing material out there that represents something that we in this public hearing process don't get through Collier County, this Collier County process is going to control. If there's any problem, if someone's going to come to us and complain later that well, I read this in marketing materials from two years ago, you owe me, we'll deal with that privately. But the county process is going to control. But we believe that Chairman Hughes of the EAC specifically lynched upon that and said this is just a -- you know, I just don't feel comfortable. And we thought that was the momentum shift in the EAC meeting. CHAIRMAN STRAIN: Mr. Adelstein? COMMISSIONER ADELSTEIN: Basically what you said there obviously is accurate. It also showed that they felt that the property itself was a gem of itself. In fact, that's basically what they said. And that they felt that this was what it should be, for it not to be into a public entity on a home-based property. Now, this new thing that you're talking about homes, that's the first time I've heard that you may be putting homes up was today. Otherwise this property situation was not only turned down, it was turned down by every single one of the seven people who voted on it. There wasn't anybody saying anything here about basically this is a bad situation. They did say it was going to be, and in fact was -- could be very dangerous because of other people coming up while your group would be there and the fact that there would be no way to protect that. Page 26 July 19,2007 There were many other items in here. In fact, there was 82 pages of it, which I've read, and realized the fact that we're not talking about a situation of a building, we're talking about the property of a very genuine gold mine. A property that is extremely -- well, nothing like it here or around here. To protect that was far more important in their mind than it was for you to have a 20-people outing whenever you wanted it. I don't have anything to say that you're wrong, I'm just saying that as far as they were concerned, they knew you were wrong. MR. BROOKER: And for the record, they did not see any of the single-family home presentation. COMMISSIONER ADELSTEIN: Again, we didn't know it either. CHAIRMAN STRAIN: Okay, any other -- Mr. Kolflat? COMMISSIONER KOLFLAT: Yes. Regarding what Mr. Adelstein just brought up on the EAC report, I also obtained a copy of that report. And during the vote each of the members gave their opinion as to why they were basing their vote on a negative. And a majority of them let that they were concerned about the precedent that it might establish. Do you want to address that subject? MR. BROOKER: Yes, thank you. Number one, and I have three points about the precedent issue. And that's been coming up ever since we initially proposed this concept. This is not a new concept. This is not a precedent for the island. There are at least three other clubs out there that don't use the property, gems, for single-family homes usage. They use it for club members to come out and enjoy the property and the beach. Those three properties are the Windstar Club, the Marker 40 Club and Naples Cruise Club. Two of those properties have beach shelter structures on them. We're not introducing a new concept. It may be that they didn't Page 27 July 19,2007 go through a conditional use process. Maybe those structures were there prior to a conditional use process being created by the county. I don't know whether that's true or not. But I can tell you that our process, the process that we're going through, is better. And the fact that that concept has been out there and no one seems to be raising it or complaining about it, shows it's not adverse to Keewaydin Island. And by the way, Windstar has over 600 units involved in it that can bring guests, wives, you name it. More than what we have, what we anticipate. Number two, legally a conditional use does not create precedent. Each case is reviewed on its own merits to see if it meets the criteria in the Land Development Code. This conditional use that we're applying for is a conditional use determined by the County Commissioners that could be appropriate for the island, its law -- we're following the rules -- if in fact certain controls as to number and so forth are imposed. And that's what we've done through this regulatory scheme. So for -- ifthere's concern about someone else coming down the pike right behind us, they're going to have to meet the criteria on their own. And we believe our property is uniquely located. It's bounded on the one side by about four miles of state owned land. On the other side there's about 1,000 feet between us and the nearest structure to our south of state owned property. So we believe that in terms of the criteria that talks about impact or noise, odor, adverse impacts to other property owners out there, we are in a unique situation, a unique location that we don't believe any other lot can boast. So we don't think it's going to be opening the flood gates. We don't think this is the nose of the camel under the tent. And finally, even if someone else comes along behind us, and even if someone else is able to convince the county that they do in fact Page 28 July 19, 2007 meet the criteria, as we believe we meet it, isn't this good precedent? We're preserving 90 percent of the land forever. We can't ever build on it. 816 square feet on 4.3 acres. I ask you, has any other private property owner come before you and offered to dedicate conservation easement over 90 percent of their private property? Probably hasn't existed on Keewaydin Island or in Collier County general. So for those three reasons, we believe that the precedent issue is a non-issue. COMMISSIONER ADELSTEIN: Well, as-- CHAIRMAN STRAIN: Mr. Adelstein, wait a minute. Mr. Kolflat, are you finished with your question? COMMISSIONER KOLFLA T: I'm through. CHAIRMAN STRAIN: Okay, now, Mr. Adelstein, go ahead. COMMISSIONER ADELSTEIN: I just wanted to make this one statement from the Chairman Hughes. And this is the statement he's -- that I'm going to redirect before you. But we do have -- we have a job, and we felt the job is to protect that piece of that little gem on the island. That was the issue that it was. Not what they were going to do but what quality it was in its natural state by itself. MR. BROOKER: And my response would be is a two single-family home with no limitations, people walking all over it, no conservation easements, unlimited number of people, fundraisers, parties, is that protecting that gem, compared to what we are doing? COMMISSIONER ADELSTEIN: They are protecting what you displayed for them before them. What you're going to change -- for example, the houses wasn't in that. That didn't come in on it yet. What you're doing now is using what you're trying to supplement from this, because in this they -- came through three or four other statements which said exactly the same thing. This is property that is genuine property and needed for a lot of things, but not for a commercial use. MR. BROOKER: Well, we listened to their comments and Page 29 July 19,2007 because of that we've created -- tried to demonstrate what we've known all along but tried to demonstrate by pictures what could actually go out there. We did a comparative analysis. And we believe that if the EAC's job is to protect that gem, this proposal is better than the alternative, which has no environmental controls at all. A two single-family home development on that property, which all of those EAC members knows but didn't have a picture that we showed them, is a matter of right, permissible, and we believe is far worse for the environment, the integrity, the stewardship of Keewaydin Island than what we are proposing. COMMISSIONER ADELSTEIN: Well, obviously they felt the other way. CHAIRMAN STRAIN: Any other questions? (No response.) CHAIRMAN STRAIN: Clay, just so I'm clear, and maybe the rest of the members, your discussion, or you're showing us today of what could happen in regards -- or what you think could happen if two single- family homes were put there, you weren't proposing to do that? MR. BROOKER: That's correct. It was a comparative. CHAIRMAN STRAIN: This is strictly about the facility in front of us today. The homes were just an example of what you feel might be an alternative? MR. BROOKER: Right, in line of what already exists out there on other private properties. CHAIRMAN STRAIN: Has the county ever tried to buy your property? MR. BROOKER: I'm sorry? CHAIRMAN STRAIN: Has the county ever tried to buy this property that you're dealing with? MR. BROOKER: Not that I'm aware of. CHAIRMAN STRAIN: Has Rookery Bay? MR. BROOKER: Not that I'm aware of. Page 30 July 19, 2007 CHAIRMAN STRAIN: Have you tried to sell it to the county or to Rookery Bay or to any state agency or any particular agency? MR. BROOKER: Not more than a comment by me in one of the public hearings that an alternative is to simply buy it for market value from us. But I don't know if that's really an offer of sale. CHAIRMAN STRAIN: Okay. I've got some questions of -- two short questions about your EAC presentation. In your discussion in front of them you said that you had worked in close cooperation with Rookery Bay. Actually, this probably is more for the county attorney than for you. And the fact that their document will be recorded if this petition is approved in the public records of Collier County and it will be a part of this petition and the conditional use approval. Mr. Klatzkow, how does that agreement they have with Rookery Bay weigh in in regards to effectiveness or effectiveness of the county to enforce or code enforcement to enforce in regards to this process? MR. KLA TZKOW: Darned ifI know. I mean, we've got a code enforcement agency, but they're there to enforce Collier County code and ordinances. I don't think they're going to go around trying to read their guide book and somehow enforce that. So I don't know that the county will be enforcing that. Now, where it could come up is the conditional use has a procedure whereby this could go back to the Board of County Commissioners. At that point in time if they're in violation of that, the Board of County Commissioners could look at it at that point in time and maybe that could be part of their deliberations. But other than that, Commissioner, I don't know where it gets us. CHAIRMAN STRAIN: But my reading of the document will have -- I have some questions on that, too. It seems that it's between Rookery Bay and the applicant. And I don't know how the county would be responsible for the enforcement, nor do I believe the county code enforcement department probably has enough personnel to Page 31 July 19,2007 monitor that agreement in the level in which they would have to in order to show noncompliance in front of any future Board of County Commissioners meeting. MR. KLATZKOW: Yeah, I agree. MR. BROOKER: Mr. Strain, may I comment on that? CHAIRMAN STRAIN: Absolutely. MR. BROOKER: The reason we submitted it as part of it is we -- the intention is to make -- for example, the operations manual, all the rules are numerized (sic) rules in there as conditions. So it may not be true that a code enforcement officer could memorize all those rules as he or she is walking down and know what they are. But something tells me that people in general are going to know what those rules are. The code enforcement department is reactionary. So someone's going to call. People know what the rules are. There's been a lot of publicity about this. People will know, people will call. And code enforcement will be fully knowledgeable of what those rules are. And we ask that they be made part of the conditions of this approval, and therefore they do have enforcement authority, because all conditions of a CU approval are deemed part of the Land Development Code. CHAIRMAN STRAIN: Well, then, I'm going to go back to the county attorney. Ifwe -- if the situation is one that code enforcement can enforce but yet you believe by making it part of the conditional use they can enforce, then we certainly need to know if that's a viable possibility. Because if it is, it triggers other issues involving staffing of code enforcement to be able to do that to begin with. And I'm just not sure we've got a good solid answer on that regard. MR. KLA TZKOW: I think you do. What I'm telling you is -- if I can get Joe down here; I know he's in a meeting. But unless Michelle Arnold's instructed to look at that code book and assign somebody to actually do it, it's just not going to happen Page 32 July 19, 2007 from a practical standpoint. CHAIRMAN STRAIN: Okay. Then another item that was brought up in front of the EAC -- and it will be my last question on that particular issue -- if it's shown that we simply cannot meet these rules and there's problems that exist, for example, I think it's a certain number of violations for a period of time, then Rookery Bay can come to Collier County and say this is just not working, let's reevaluate. Do you know of any mechanism in our code that would provide Rookery Bay the ability to do that? MR. KLATZKOW: Well, when staff gives its presentation, Mr. Moss will be discussing that at that point in time, we can get into that. But just as a preamble, if they will agree to that mechanism, that mechanism will be enforceable. As a general rule, we do not have that mechanism in the county, but if they will submit themselves to that, then we can do that. And I made a recent addition to the conditions that Mr. Moss will be presenting to you during his staff report. CHAIRMAN STRAIN: Okay. And the mechanism you're referring to is strictly the one in which triggers a reevaluation. MR. KLATZKOW: That's correct, sir. CHAIRMAN STRAIN: Okay, not the prior one we just were speaking about. Thank you. Clay, on your operations manual, are you the authority on that? MR. BROOKER: I think so. CHAIRMAN STRAIN: Well, I mean, I don't know who wrote it. There's a lot oflegal work in it, so you're an attorney, I figure you must have something to do with it. MR. KLATZKOW: Mr. Chairman? CHAIRMAN STRAIN: Yes, sir. MR. KLA TZKOW: I just wanted to confirm, the Rookery Bay is not among the conditions of this conditional use. Page 33 July 19,2007 CHAIRMAN STRAIN: Well, I know, that's where I was going. MR. KLA TZKOW: So I really don't know where we're going with it. CHAIRMAN STRAIN: One at a time. And Mr. Murray, did you want to contribute? COMMISSIONER MURRAY: No, I'm sorry I was out of order. I was being reactive because I realized a while ago that it's spinning out in space, it's not a part of this. MR. BROOKER: I can bring it back into orbit. COMMISSIONER MURRAY: Well, the chairman has the floor. CHAIRMAN STRAIN: The only thing I wanted to -- thank you. The only thing I wanted to say is if you're under the assumption, based on the statements you made to the EAC, that the operations manual was something that was enforceable by code enforcement and you thought it was part of this conditional use, based on what I'm hearing now, it has not been proffered forward as part of this conditional use by staff, nor analyzed in that manner. Which means we may have a disconnect between what you're thinking you're presenting here today and what is actually being done by staff. MR. BROOKER: A couple of points. Number one, with regard to Rookery Bay being able to suggest that the conditional use be revoked if certain criteria are met, a persistent record of violations, we gave -- obviously early on we had this discussion with them. And what happens, you know? It's just money that we pay if we violate the rules, and is that really -- you know, a slap on the wrist really meaningful? And so what we tried to do was we tried to create a mechanism by which Rookery Bay could come to the county and say, you know, it's just not working out, do something about it. Collier County Attorney's Office from day one always was uncomfortable with that, for the very reasons that have been expressed here today. And so for that reason, condition number 14 was borne. Page 34 July 19, 2007 And so what this does is Rookery Bay, under our private agreement with them, can come here and suggest that it be revoked all they would like and there may not be a mechanism by which that really has any teeth. But condition number 14 does. And so -- and it uses some of the same terms that we have included in the private agreement with Rookery Bay. So if we're before BCC because we've violated some rule and Rookery Bay stands up and says it's not working out, that's going to carry a lot of weight. And it's essentially the death mill. And so while our private agreement may not be all that effective, condition number 14 is. With regard to the disconnect and the addition of the operations manual into -- the inclusion into our package, whether staff analyzed it or not, I don't -- I can't control what was read, what wasn't read. But it was submitted at all times as part of our package and referenced throughout our application. If there's an issue that there's a problem with that, those rules may not be enforceable because of some technical disconnect, make it part of your motion as a condition. CHAIRMAN STRAIN: Well, before we could do that, my concern was from a staff perspective, how could Collier County handle it? Could they handle it? With a budget situation, it may have required more from your end of things to fund facilities that would need to be to monitor you. I don't know. I mean, if staff hasn't made that assessment, which I don't think they have, based on what I've heard, then I'm not sure that it's an effective condition of this conditional use in regards it's not been analyzed that way. And I'll see when staff gets up here, we'll ask the same questions. So let's get back to your declaration of covenants and conditions. That's part of the operations manual. If I'm not mistaken in reading this, it restricts access to the property only to certain people: The club's members, member's Page 35 July 19, 2007 guests, club's employees and others permitted on the property by declarant in a matter compatible with the sensitive environment of Keewaydin Island. This is the first page. The public is not mentioned. So the public is not allowed? MR. BROOKER: Correct. Well, the public's not allowed on our private property. Obviously the public can come to the beach. CHAIRMAN STRAIN: I just wanted it clear. You have a revised and restated agreement between Rookery Bay and yourselves. And I assume it's the one -- it's Exhibit 2 in the operations manual. On number three, Page 2 of that document, the last sentence says, the Club at Naples Bay Resort shall keep on file a signed acknowledgement form for each member and employee of the Club at Naples Bay Resort. Now, in the declarant of covenants that I just read, you addressed more than members and employees of the club. Why wouldn't you be seeking the same kind of signed acknowledgement from everybody that goes to that site, rather than just the limited employees and members of the club? MR. BROOKER: Well, I think in the Declaration of Covenants, I'm trying to find where that -- CHAIRMAN STRAIN: Declaration of Covenants, it's in the second paragraph on the first page, the second whereas. MR. BROOKER: I believe the reason why we were expansive in the declaration was to explain who could possibly join -- accompany a member to the property as a simple whereas clause. And we are also including maintenance personnel, in the event something goes wrong. But with regard to the revised restatement and agreement, if you want to make it a condition that for example our wastewater maintenance firm, they must sign this as well when they go out there to take a look at the wastewater system manually, then I guess we could do that as well. CHAIRMAN STRAIN: You're going to have other people that Page 36 July 19,2007 aren't members of your club having access to the facility. You say that in the declarations whereas clause. And others permitted on the property by the declarant. My only concern was that in your signed acknowledgement you're only going to get it from members and employees of the club, period. Why wouldn't you just get it from everybody that sets foot on that property? MR. BROOKER: We can do that. Make that a condition, please. CHAIRMAN STRAIN: On number seven, upon notification of a disputed violation pursuant to paragraph six above, the reserve manager, DEP or its designee shall as soon as reasonably possible contact Basil Street Partners and then shall make efforts to the maximum extent possible to resolve the disputed violation and to ensure that reasonable corrective action is taken. A lot of ambiguous statements there. Nothing seems definitive. That's the kind of stuff that we read in our LDC document from time to time and immediately correct. And I'm just making a note to you that I'm not sure that puts a lot of teeth in any kind of reaction, because it's basically ambiguous in a number of different ways. MR. BROOKER: That language came from DEP's counsel in Tallahassee. And the idea was to keep it -- I believe to keep it somewhat broad to address all possible situations. And again, we're going to have to correct it. For example, if we see someone walk across our property line with a beer, corrective action would probably be, in that situation, inform the member that they have violated the rules, inform them that it should never happen again, and we are on the books as having violated one of the rules. We make a payment to Friends of Rookery Bay as a penalty, and that goes down as one of our violations, meaning we're back before the BCC. CHAIRMAN STRAIN: I understand. I just -- those kind of-- Page 37 July 19,2007 it's not as tight as I would like to see those paragraphs. Number 11, the last part of that, you talk about DEP/Rookery Bay may, at its sole discretion, recommend that Collier County revoke Basil Street Partners' conditional use permit for the property. Mr. Klatzkow, is there any provisions in our code that fits that ability? MR. KLATZKOW: Not in our code, no. But Mr. Moss would make a presentation to you on that issue. CHAIRMAN STRAIN: That's going to be addressed, okay. Number 14, you talk about the conservation easement shall be a donation to the State of Florida, board of trustees of the Internal Improvement Trust Fund, yet on number 10 you talk about any fines and violations basically to be made payable to the Friends of Rookery Bay. Friends of Rookery Bay is a non-profit. Do you know anything about the organization in regards to how their money is overseen in comparison to the state's Internal Improvement Trust Fund? MR. BROOKER: Keith may know more about this than I do. But I believe the Friends of Rookery Bay is what they call a CSO under the statutes, or a citizens support organization. It is in fact a statutorily created organization. They are registered as, I believe, a nonprofit corporation in the State of Florida. And as a matter of fact, when I first was trying to wordsmith all of this language, I made the payment to the state. Well, DEP said no, that's probably not a good idea. And I said, why? And they said, because when you make a donation to DEP, we don't control where it goes. It becomes part of the general fund. So it's not really money that's going to be used in the stewardship of Keewaydin Island and Rookery Bay, and so for that reason the language was changed pursuant to Rookery Bay and DEP's request. CHAIRMAN STRAIN: Now, I'd certainly like to talk to Tim, I guess, about your docks. As you know, that's been an issue that I Page 38 July 19, 2007 brought up to -- MR. BROOKER: Be nice to him, he's been in the Bahamas for like the last week or something. CHAIRMAN STRAIN: Yeah. He's slow moving. That's what they do down there, I guess. Hi, Tim. MR. HALL: Hi. Good afternoon. For the record, Tim Hall with Turrell, Hall & Associates. CHAIRMAN STRAIN: The dock that is there -- and I've got your environmental impact statement -- I certainly have some questions about it. But let's start out with the heaviest issue, and that seems to be, in my mind, the understanding of how the dock was permitted. I know how it was permitted, although all the documentation for the permit is not in your packet. Seems like it was permitted as a single-family home at a time the prior owner owned the property when there was a plan to put a single-family home on the property; is that an accurate statement? MR. HALL: That's correct. And actually both properties were permitted with docks; however, only one was constructed. CHAIRMAN STRAIN: Okay. I know that you are well aware of state and federal laws involving docks. There's a new Manatee Key out -- or actually, it came out in 2005, are you aware of that, by the Corps of Engineers? MR. HALL: Yes, sir. CHAIRMAN STRAIN: Okay. I have read it and I believe based on that Manatee Key, that this would be a may effect the manatee, requiring a consultation with Florida Fish & Wildlife -- or Fish & Wildlife Service. And the Corps then would be involved in the new permitting of that dock. Is that your thoughts on that, or how would you be seeing that happening? MR. HALL: What we anticipate happening is that the -- if the conditional use is approved, then the actual use of the dock will have Page 39 July 19,2007 to be amended to DEP. An application will have to be made to change the use of the dock from a single-family use to a support for the upland facility in terms of a boat dropping people off. It wouldn't fall under the stricter guidelines of the single-family use. So we anticipate that DEP may request a submerged land lease, or a private easement be implemented as part of that application. When that application is made, DEP will also send a copy of that to the Corps, and that's when the coordination with them will initiate. I'm not sure how they will look at that. I mean, right now the dock is permitted for two vessels, full-time use. And what is being proposed is limited to one vessel and only daytime use. No nighttime or evening trips. So they may ask Fish & Wildlife Service for coordination, but I couldn't say whether they will actually make a may effect or a may effect not likely to adversely effect determination. CHAIRMAN STRAIN: What do you think DEP is going to classify the dock as? Under what category? MR. HALL: Quite honestly, it is a little bit of a gray area. They may look at it as a commercial facility. However, that normally is given a designation when it is supporting a revenue-generating facility, which this is not. It's merely transport for residents to access recreational facilities. There's not a specific user fee associated with going out to the island and all, so they could still look at it as a support for like a multi-family operation where this is giving access to multiple residences to the -- to one specific point. CHAIRMAN STRAIN: Okay, under Collier County rules, for this dock to have been approved as a single-family dock, it went through an administrative review through staff. Because that's an exception for single-family docks. But my reading of that section of the Land Development Code, that exception only applies to single-family docks. Would you anticipate this then, that any new change in that dock, because it no longer would be maybe considered Page 40 July 19,2007 a single-family dock, that it would now become a public process to have the dock approved? MR. HALL: Ifit's not addressed as part of the conditional use, then that is a possibility, that the dock itself would also have to go in front of the public review. CHAIRMAN STRAIN: So is it your contention that the intent today is also to be addressing that dock as this conditional use process; do you know? MR. HALL: My assumption would be that -- would be yes, that that is part of the -- that would be part of the process. But whether that has been clarified or not, I'm not sure. MR. BROOKER: I think what our position on this would be is the dock is over sovereign submerged lands. Jurisdiction for that lies with the Army Corps and DEP, that a condition be made to the conditional use approval that we must comply with all applicable state and federal regulations. So in the event that we aren't able to permit the use of that dock consistent with DEP and Army Corps regulations, then we're essentially dead in the water. But that's what we have seen on almost every land development order that comes out of the county is you must be consistent with all applicable state and federal regulations. CHAIRMAN STRAIN: My concern there would be if this conditional use is intended to approve a dock, I'm not sure the focus, from the application that I've seen in front of me, nor in staffs review applies to the review of a commercial or multi-family dock facility as it's being proposed versus just this is what's there now. I don't know if they looked at it that way. And that's certainly a question I'll have to ask staff when we get staff back up here. MR. BROOKER: And I don't think we're asking for approval of a dock in conjunction with this application. CHAIRMAN STRAIN: Okay. So then the code section that references a separate public review of a dock other than a Page 41 July 19, 2007 single-family, if that applies to you, your intention is to go forward with that and not have that -- have the -- today's actions signify any approval of that dock facility? MR. HALL: That's correct, yes, sir. CHAIRMAN STRAIN: Took a while, but we got there. MR. HALL: I guess I was just trying to generate the fact that you're aware that boats will need to use the facility as support for the upland use. CHAIRMAN STRAIN: There's a use -- the upland use is going to trigger change in the use of the dock. MR. HALL: That's correct. CHAIRMAN STRAIN: And the change in the use of the dock would be a different level of change than a single-family house may impact, and therefore you've got different agencies to deal with, including Collier County. MR. HALL: Correct. And that has not been started because it is not an easy process. And if the conditional use is approved, there's no point in actually undertaking that. CHAIRMAN STRAIN: Mr. Klatzkow, now that we know we're dealing with a dock that is not single-family, is there a conditional use process applicable to this land, an AST designation, that allows a non private dock? MR. KLA TZKOW: I will answer the question saying I like what Mr. Brooker has said, if at the end of the day he's precluded by our code from getting a dock, all right, he's dead in the water. Now, I don't know that he is, but I think he's going to have to comply with all federal, state and local regulations involving this dock, should the conditional use be granted. CHAIRMAN STRAIN: My concern was that if we have a certain array of conditional uses allowed on properties, and they're tailored as things that may be compatible, depending on how the public process and the analysis goes forward on a case-by-case basis. Page 42 July 19, 2007 And on this property a recreation facility -- is there a recreation something that's one of them? Is a dock considered something that a conditional use could be applied to in this condition? Does it fall under -- does a commercial dock or a multi-use dock, as this may be called, fall under the recreational aspects of the conditional use allowed on the property, or are we dealing with something that isn't even allowed to begin with in regards to the dock use? MR. KLATZKOW: You're giving -- well, he's asking for a conditional use for a residential -- for a recreational purpose. I don't think he could then turn around and get a dock for a commercial purpose. I think he's precluded from that. So if you're asking-- CHAIRMAN STRAIN: That's kind of what I was concerned about. MR. KLA TZKOW: Yeah, so I think he's dead in the water on that. He's going to have to get -- his dock permit's going to have to comport to whatever use he's been granted here. And he's asking for a conditional use for a recreational facility. So his dock permit's going to have to be for a recreational facility. He can't say I'm not commercial here, I'm recreational and then turn around on his dock permit and say I'm commercial. CHAIRMAN STRAIN: And the conditional use allowed on the property, even though it's for recreational, the dock that would have to go with this facility, whatever it is, would be an allowable conditional use? MR. KLA TZKOW: I don't know. I don't know. CHAIRMAN STRAIN: I'll let that ride. I just want to throw it out for discussion. MR. KLATZKOW: I think he has issues. CHAIRMAN STRAIN: Well, I'm just letting you know about it. Tim? MR. HALL: Yes, sir. Page 43 July 19, 2007 CHAIRMAN STRAIN: On Page 3 of your report on the bottom, you talk about the noise level at the shelter is expected to be less than 55 d.b.a. They're talking 65. How much of an impact would that have on your conclusions? MR. HALL: Who's talking 65? CHAIRMAN STRAIN: Your applicant. The county staffhas said as a condition of this particular applicant, that they would be limited to a decibel level of65. Now, I don't know why county staff would say 65 when 55 is what the applicant says they're not going to exceed. But maybe that came about by staff, not by the applicant. MR. HALL: I'm not aware of where that was originally -- we were told that given the mufflering (sic) and shielding technology available for the generator that we could meet the 55 d.b.h. level. CHAIRMAN STRAIN: Clay, do you have any problems with the 65 -- I mean, 55 versus the 65 that's in the conditions as recommended by staff'? I f staff were to recommend 55, is that a problem? MR. BROOKER: Measured from where? CHAIRMAN STRAIN: I haven't got the code book with me, Clay. Otherwise I'd be able to quote -- MR. BROOKER: If it's measured at the property line -- I don't think we have a problem with 55 measured at the property line. MR. HALL: I'm not sure if the staff -- I think there were some differences in what the level would be at the generator versus at the shelter. And that may be where that discrepancy came in. CHAIRMAN STRAIN: I think the code reads at the property line. MR. HALL: The code does read at the property line, yes, sir. MR. BROOKER: And Mr. Strain, since we're quoting the EAC so much today, the chairman of the EAC said that the noise expected from this generator would be a hum, like a hmmm. And he actually did what I just did during the EAC meeting. Page 44 July 19,2007 CHAIRMAN STRAIN: Is he a sound expert or something? Okay, on page -- on Page 4 of your EIS, on the top you have a 10-gallon -- the wastewater from the restrooms be treated through an on-site aerobic treatment septic system and drain field. The capacity of the septic system will be based on a 10-gallon person per day water use capacity. The documents we have in front of us today show they're gearing it for a 25-gallon per day. Will that have any impact on the outcome of your EIS? MR. HALL: No, it will not. We were told that that facility could be housed within the same footprint. So if anything it would give you a little bit more buffering capacity in case there is, you know, extra use. CHAIRMAN STRAIN: On Page 14 of your EIS, you are responding to GMP sections. And you're responding to Section 10.3.6 and 10.3.8, and you were talking about the impacts. You kept referring to the structure. And each time I notice you referred to the structures, the fact that two single-family homes or the structure you're building. That's the density related issue, but how did you address intensity of the use of the property, or did you address intensity of the use of the property? MR. HALL: I didn't really address it in the EIS. In some of the later conversations when this went through originally we looked at the actual square footage of beach and how much, you know, beach that-- that would be available to the actual patrons of the facility. And given that they went from 56 down to a maximum of 20, the intensity was not considered detrimental environmentally, in my opinion. CHAIRMAN STRAIN: Did you do an analysis then on the intensity of the 56? MR. HALL: Where it started was originally -- I believe it was -- I can't remember the number now. Was it 40 a square footage per person? Page 45 July 19,2007 The 56 actually came out of a number that had a minimum area of beach per person. And that was considered the kind of the minimum that was necessary to not have crowding and personal space issues. CHAIRMAN STRAIN: So you didn't do an intensity study or a document analysis that is in front of us for the 56? MR. HALL: No, sir. CHAIRMAN STRAIN: But the 20 was determined to be less intense than the 56, simply because it was a lower number than the 56? MR. HALL: Correct. CHAIRMAN STRAIN: You know, and we did this on the first hearing, too. You take Collier County's persons per household and divide it, which is 2.39, and divide it into the persons you're allowing to equivalent -- to figure out an equivalent number of homes that would generate the same people. And as I said in the 56, it was a higher number than the facility. In this particular case, 20 equates to over eight homes. And I don't know if anybody looked at that home format for intensity in regards to this project. MR. BROOKER: Sir, are you looking at an average home? CHAIRMAN STRAIN: I believe that's how the persons per household is calculated through the census. MR. BROOKER: And so what are you comparing that to in terms of our average usage. CHAIRMAN STRAIN: I'm trying to understand if you have 20 people frequenting this site on, say, a continuing basis, how does that compare to a home? And some of those homes, by the way, are not continuous, they're only seasonal. So that means you'd have an equivalency of eight homes or a little over eight homes by the 20 people. MR. BROOKER: A couple of responses. Number one, these are Page 46 July 19,2007 not average homes. Number two, they can be rented. Number three, they can have no limitation on the number of people whatsoever. They'll be three to four bedrooms each. So if you want to take that as the average house in Collier County, we believe your premise is flawed. Number two, the -- as many times as I've watched planning commission meetings and as many times as I've been in front of planning commission meetings, everyone says you have to prepare for the worst case scenario. Our worst case scenario is going to be 20 people. Compare that to a worst case scenario, two single-family homes that have no environmental controls and no limitations on the number of people they can have on there for fundraisers and parties -- CHAIRMAN STRAIN: You're going fast. I know she's not getting your stuff, so slow down a little bit. MR. BROOKER: So we believe that that's just an unfair comparison to say that this is an average home and that there's going to be 2.4 people. One way to -- per home. One way we can address that is, okay, well, you have two homes. 2.4 times two, what's that, five people, five or six people. That's probably what we anticipate going out there on an average basis. But if you look at the worst case scenario, ours is 20. For you to do a fair apples to apples comparison, what is the worst case scenario of a single-family home times two with no limitations? You can't even calculate it. We have evidence of parties over 100 people on Keewaydin Island on private property. So we would ask you to take that into account when you try to apply that comparison and at least to an apples to apples bare basis. CHAIRMAN STRAIN: Have you done any studies or anything you could supply us with to show us how this was looked at or any kind of averages that you have made? MR. BROOKER: Collier County has ascribed a 500 square foot per person beach measurement, or carrying capacity to Keewaydin Page 47 July 19, 2007 Island. COMMISSIONER MURRAY: Five hundred. MR. BROOKER: City of Naples is two to 300 square foot per person. But because this is a barrier island, Collier County figured, well, no, two to 300 square foot per person is a little bit tight. So they said 500 square feet of beach. So we looked at the amount of beach we have, we multiplied it out, and it comes up -- you know, we know there's going to be accretion and erosion. What I understand is Keewaydin Island is experiencing more accretion than erosion, but I'm not an expert in that. But with the existing beach we have right now, it comes out to over 21 to 22 people that can fit comfortably, using Collier County's own standard for Keewaydin Island. So we reduced that. We rounded it down to 20. And really, it won't even be 20, because if we have 19 members, we have to have a staff person out there. So that's a total of 20. So it would be 19 people, possibly, that could be on the beach, which is well under the threshold set by Collier County . CHAIRMAN STRAIN: Okay, thank you. Appreciate it. Tim, that's most of the questions I have at this point. I've got questions of staff that may boil over to your side. But Mr. Murray? COMMISSIONER MURRAY: I have a number, i[J may. Not for Tim, but -- well, perhaps for Tim. But I'd like to go quickly through, because we're wordsmithing or qualifying information, and maybe it's necessary to do that. With regard to your operations manual, let's go to introductions, Page 1. Got it? MR. BROOKER: Yes, sir. COMMISSIONER MURRAY: I'm looking at the last paragraph, and essentially the last sentence, really. And I'm concerned with the Page 48 July 19, 2007 statement, repeat offenders may be banned from the facility, if necessary . So I have a question for you with regard to your gate at the dock. What is contemplated when a boat brings people there, presumably the boat will leave. When the people are there, is the gate to be locked, or will the gate remain open and available 5should somebody who shouldn't be there, according to this, decide to come in and take and make access to the place? MR. BROOKER: The gate will be locked. COMMISSIONER MURRAY: Okay, what do we do in the event that there is a fire situation, given that? MR. BROOKER: Isles of Capris Fire District will be given a key to the gate. COMMISSIONER MURRAY: I'm talking about freedom to get away from the fire, should there be. There's all mangrove and stuff out there. MR. BROOKER: There won't be anyone on the property without someone from our club, a staff person on the property. So in the event of an emergency, there would be obviously some sort of evacuation -- COMMISSIONER MURRAY: Everybody get to the Gulf if the gate is locked, because you really couldn't go anyplace else, correct? MR. BROOKER: They could either go to the Gulf or they go to the dock where the staff person has unlocked the gate. COMMISSIONER MURRAY: Okay. So there'll always be somebody, and there's no problem with that, correct? Thank you very much for that piece of it. You don't know how many times a day that -- and by the way, I would suggest that you consider the use of the word "may", and if necessary there. Too many opportunities for somebody to get by with this. And you don't know how many times a day shuttle go there. You're anticipating, according to you, best case situation, or Page 49 July 19,2007 maybe worst case, depending upon your view, maybe six people in a given day. Maybe in an extraordinary event you might have 20, but that you'll lock it out there. When you say reasonably locked on Page 2, bottom, hours of operation, what does reasonably mean in that context? MR. BROOKER: Well, at the time that that language was created, we didn't know exactly what kind of locking mechanism we were going to use. There were certain -- certain people recommended like a magnetic card type of thing or just a dead bolt. And so we left it open to allow us a little bit of flexibility. Now I don't believe the magnetic card idea is such a good one. It would probably -- we understand it to be a dead bolt situation where it is in fact locked. But my use of the term reasonably locked is because it's a screen shelter, it's kind of a beach campy structure. How locked can you make one of those things? But the idea is to put dead bolts in there and to prevent entry when we have not transported the members out. COMMISSIONER MURRAY: Okay. So maybe you might want to drop the word reasonably, if it makes sense to do so. Let me continue quickly. You have on Page 6, let's see, at daily operations you use the words in the last -- second to the last sentence -- the last sentence of that first paragraph, it is important not to store these items. I would think you might want to use the words it is prohibited. MR. BROOKER: Can you direct me? COMMISSIONER MURRAY: Yeah, I'm sorry, it's Page 6, food and beverage. Last sentence in the top paragraph. MR. BROOKER: Okay. We agree. COMMISSIONER MURRAY: On Page 6, trash disposal, last paragraph there, the last sentence it's, are encouraged, it says, throughout the property and uses are encouraged. Why don't we put some teeth in it. Use must. I mean, we Page 50 July 19,2007 encourage people to do a lot of things and they say I don't want to. Is that too strong, do you think, must? MR. BROOKER: Well, let me tell you how the layout came about. You're pointing to words that are in kind of like the explanation, what we call the introductory or explanatory paragraph that immediately precedes the rule. And that's what DEP wanted. DEP wanted to pull out a very hard fast rule out of each of these explanatory paragraphs. So when you say you want us to remove, it is important not to store items like food and beverages, you go to the next rule, you can't. It's very clear, it's not discretionary language, it's mandatory language. And the same is with the language in the bottom that you've pointed out, the encouraged to use receptacles. We have no problem changing it to the way you like, but that was the background of how the manual's layout came about. It was an explanatory paragraph, and then the hard and fast rule. COMMISSIONER MURRAY: That's somebody's concept of the way flow should be. But my mind, when I scrutinize something, and while I may accumulate the information as I've gone from paragraph to paragraph, I don't read the paragraph before it before I read the paragraph that I'm reading. So my questions are predicated on the accumulation, as you see. So-- MR. BROOKER: Okay, point taken. COMMISSIONER MURRAY: And if you think that it's too critical, it may very well be. And my point here is that inasmuch as Collier County -- if this were to pass, Collier County will have very little to do if anything with making certain that the prohibitions are in fact real and that they are working, will be depending upon DEP and Rookery Bay personnel who have -- I have no idea what staff they'll have and how much they'll spend their energy on trying to verify that the prohibitions Page 51 July 19,2007 you've agreed to that you sustain. So I'm looking to see if you're going to acquaint some of the people who are going to go there with prohibitions. I think flowery language or genteel approaches may not be the best approach. I think -- you know, when we go to a state park it says clearly, dogs not allowed. This is not done. I don't know why we have to inform others in a more flowery way. So that's the reason why I'm questioning. CHAIRMAN STRAIN: Mr. Murray, before you continue? COMMISSIONER MURRAY: Yes, sir. CHAIRMAN STRAIN: I was thinking of giving a break. I didn't know you had more -- COMMISSIONER MURRAY: I have -- CHAIRMAN STRAIN: Do you want to come back after break or -- COMMISSIONER MURRAY: We'll do it after break, and I only have a few more, but I do want to do them. CHAIRMAN STRAIN: Okay. Well, let's take a 15-minute break and come back here at 10:25. (Brief recess.) CHAIRMAN STRAIN: Okay, if everybody would please come back to their seats and we'll quiet down and resume the meeting. When we had taken the break, Clay was responding to Commissioner Murray. And we'll resume there. Thank you. COMMISSIONER MURRAY: I think we did finish that particular question. MR. BROOKER: Page 6 of the operations manual you had gotten through. COMMISSIONER MURRAY: What's that? MR. BROOKER: Page 6 of the operations manual you had-- COMMISSIONER MURRAY: Yeah, I think we dealt with that. Didn't we finish that? Page 52 July 19, 2007 MR. BROOKER: Yes. COMMISSIONER MURRAY: Okay. I'm now on Page 14. This may sound off the wall but we'll go with it anyway. Page 14. The question came to my mind, what if eggs were laid right on the beach right in front the parcel? Now, I don't know if that's possible, probable, but it is a question. What action would be taken then? MR. BROOKER: Well, I think it's a -- the whole purpose behind this comprehensive scheme is to work in cooperation with Rookery Bay. And almost throughout the operations manual we're required to notify them, keep them in touch, let them know what we see, what we do. And if something like that appears where we really don't know what the proper action is, we will rely upon the experts to tell us. COMMISSIONER MURRAY: Okay. So if they pattern the beach off and put their yellow tape or whatever they use, then clearly your person would feel if not instructed would feel an obligation at least to make certain that people who were uninitiated would understand and respect that this is a turtle nesting area. MR. BROOKER: Oh, absolutely. COMMISSIONER MURRAY: Okay, that's all. That's important to have that noted. Let me then go to -- I think we answered the question on the lock at the beach. I know that Commissioner Strain indicated -- he questioned you on the Declaration of Covenants, but I want to go over that one thing agam. On Page 2 of the Declaration, item three, I just want to get it clear for my purposes, if nothing else, item three reads, DEP shall have the authority -- DEP shall have the authority -- to enforce the covenants, conditions and restrictions contained herein in any judicial proceedings seeking any remedy. Do they become your surrogate in that context? I mean, if you Page 53 July 19,2007 were to have to come to the county and they're the parties, they'll have the authority to enforce. They'll also -- they could almost be your amicus as well. MR. BROOKER: Yes. And the enforcement authority by Rookery Bay and Collier County is mutually exclusive, meaning -- COMMISSIONER MURRAY: I understand. MR. BROOKER: -- Collier County can come at us. If these are made conditions of this conditional use approval, we're in violation of that. It doesn't end there. DEP has a right under this publicly recorded document in the event this is approved, would have the right to enforce through a court system, if they wish. There's no real, I don't know, uniqueness to this kind of paragraph that you would find in a declaration. Most declarations -- or a lot of declarations will include a paragraph like this that specifically empowers one entity, individual, one group to have enforcement authority and oversight over you to make sure you're complying with the rules. COMMISSIONER MURRAY: I understand. But I wonder if the county then would construe that it precludes its rights. And I doubt seriously it would construe it precludes it. But it does put this whole issue again in serious question as to who has rights. And when I speak of the amicus issue, there is a question certainly as to -- there's an -- I remember the gentleman, whose name I apologize for forgetting, the representative from Rookery Bay -- who felt very strongly that this was a very fine cooperative venture and therefore has a strong interest in the preservation of this arrangement, should it go forward. And I see that as a potential for if there are some questions well, all right, we'll let you slide on one of these issues. That's the concern I have. Not that gentleman but the next gentleman. So we're talking about the goodwill of human beings, but we're talking about sometimes the bad behavior of human beings. And we write documents to show that we recognize that and that actions are Page 54 July 19, 2007 possible to either prevent it or to remonstrate and/or to penalize. And if we're going to go over these things and if we're going to have this thing go forward, and I don't know if it will, it is essential that we have -- the closest we can get towards a true restriction on bad behavior, the assumption that there will be good behavior. Am I wrong? MR. BROOKER: No, I don't believe you are. COMMISSIONER MURRA Y: So that's the basis for my questions. Which may sometimes seem inane, perhaps initially, but on further consideration you go a little further, you start to think about it. MR. BROOKER: Well, with regard to our working with DEP and them being somehow nice to us in the future and letting things slide, that is not going to happen. I can tell you, just our -- my experience with this is when we first started putting together this package it grew three times in size once DEP and Rookery Bay got ahold of it. Because they went through it with a fine-tooth comb. And Keith will tell you that they did. It went through Rookery Bay, it went through Tallahassee attorneys. And they came back and they tried to do as best they can. They do get the benefit for the first time on Keewaydin Island. They have enforcement authority, some type of enforcement authority, over private property. No other private property owner has offered that to them. And so this is a benefit to them. They look at it as a good thing. Does that mean they're going to turn their head to their prescribed goal and job, to preserve Rookery Bay and Keewaydin Island? I highly doubt it. And number two, again, we are -- a comment is made on whether the county is precluded from enforcing these conditions. I ask you not to take a technical look at these materials in that way. What I ask you to do, we submitted them as so they would be part of the conditional use approval. Every rule in here would be a conditional -- a condition Page 55 July 19,2007 imposed upon us. Weare not trying to pull a fast one. We're not trying to say the county can't enforce. Enforce it. Make it a condition. Ifthere's any -- and the condition can be stated, in the event of any ambiguity over whether the DEP or the county has authority to enforce, it shall be the county. Make that a condition. Because that's our intention. COMMISSIONER MURRAY: Okay, I thank you for that part of it. Because it does come in too on Page 3, my notations next to items nine and 10 is that Collier County not a part of. But I won't belabor that particular piece. On your revised and restated agreement, which I believe is still extant, that's still valid; is it not? MR. BROOKER: I'm sorry, say that again? COMMISSIONER MURRAY: The revised and restated agreement. If there were a number, I would cite the number, but there is not. It's sequential to your documents. MR. BROOKER: Oh, right, right, I've got them. COMMISSIONER MURRAY: I have -- have you found it yet? MR. BROOKER: I've got it. COMMISSIONER MURRAY: Okay, thank you. My notations to myself are at the bottom where it has a reference to items one and two. And my first note is on item one with revisions up to date. Is there an action, do you have some means by which you'll revise the manual to bring it up to date from time to time? That might be a standard practice, but I wonder ifthere are things that are learned whether you've encumbered yourself so that you're obliged to bring them up to date. Because, you know, we tend to hear about government that had something in 1922, and that doesn't apply anymore, and we'd like to think that we were talking about something that's applicable today. That's the basis for my question. MR. BROOKER: I don't have the particular paragraph in front Page 56 July 19,2007 of me, but there was flexibility built into this whole document whereby DEP, Rookery Bay and us, we would have the means to revise this document to reflect whatever is actually approved by the county. So there's flexibility in there. And there's a requirement that we continue working together in that regard to make sure this document is consistent with whatever the county says. COMMISSIONER MURRAY: Okay, thank you for that. But the next question that begs is when you do revise it and update it, will you obligate yourself to make certain that the county agrees with the updates and the revisions? MR. BROOKER: Well, by definition the county would have to, because we are going to revise it to be consistent with what the county has dictated to us. COMMISSIONER MURRAY: Okay, that's the agreement. And I'm referencing the agreement, yes, you would. But also the basis for the agreement is -- well, not the basis but the outcome of the agreement is the operations manual and the other things. And I'm just trying to put a little bit of a concern in there that we don't want to have changes to the operations manual that are not reflective of the agreement. MR. BROOKER: It's not going to happen. And in the event it does -- COMMISSIONER MURRAY: All right. It's on the record. MR. BROOKER: -- then it will be -- we'll have to be back before you. COMMISSIONER MURRAY: Okay, it's on the record. Now, I just want to be clear, on the following page on item three, it says to all members. And I know that you're going to sell memberships to boat owners. They won't be unit owners but they'll be owners of their own boats. MR. BROOKER: Yeah, every owner of a wet slip is a -- COMMISSIONER MURRAY: Is a member. July 19,2007 MR. BROOKER: -- is a club member. COMMISSIONER MURRAY: Okay. So that covers everybody. I want to come to my end very quickly here. All right, I have my -- my last question is on Item 15 of the same document, where it speaks to Basil Street Partners and DEP Ribner (phonetic), will cooperate to produce a mutually satisfactory monitoring program for the property which will include recording the numbers of permitted visitors. How about the nonpermitted visitors who will come by boat via the Gulf and who come on and exceed your number? MR. BROOKER: We certainly can include that in the monitoring program. Instances whereby club members have violated the rules and attempted to come onto the property in violation of the rules. And we can include that in the monitoring program and report that. But again, they're not going to be able to come onto the property if we are at our maximum. Anyone can beach a boat, but we are not going to allow them to come onto our property, into the beach shelter, that sort of thing, if we are at our maximum number of people. COMMISSIONER MURRAY: And that would be declared to the individual or individuals at the moment that they attempted to do so? MR. BROOKER: Absolutely. COMMISSIONER MURRAY: I want to thank you for your patience in answering my questions in detail. MR. BROOKER: Thank you. CHAIRMAN STRAIN: Okay, any other questions of the applicant? (No response.) CHAIRMAN STRAIN: Ifnot, we'll-- thank you, Clay. We'll entertain a staff -- Page 58 July 19,2007 MR. BROOKER: And again, I would like to reserve time after-- CHAIRMAN STRAIN: That's fine. We have public after staff. MR. MOSS: Good morning. John-David Moss, department of zoning and land development review. Staff has evaluated the application pursuant to the conditional use criteria that's outlined in the LDC, and has determined that the proposed beach shelter, as conditioned, would be consistent with the purpose and intent of the conservation designation of the Future Land Use Element of the Growth Management Plan consistent with both the future -- excuse me, consistent with both the agricultural and special treatment zoning district requirements of the LDC. THE COURT REPORTER: Could you please slow down. MR. MOSS: All right, let me repeat that. Staff has determined that the proposed beach shelter, as conditioned, would be consistent with the purpose and intent of the conservation designation of the Future Land Use Element of the Growth Management Plan and consistent with both the agricultural and special treatment zoning district requirements of the LDC. It would provide adequate ingress and egress to the property, would have a minimal effect on neighboring properties in terms of noise, glare, economics and odor, as the site abuts vacant conservation land that's owned by the state and is approximately 1,000 feet north of the nearest neighboring structure. And it would be compatible with adjacent properties in the district which also share the conservation designation, agricultural zoning and special treatment overlay, as 89 percent of the site would be placed under a conservation easement, with 95 percent comprised of native vegetation. The Environmental Advisory Council heard this petition on May 7th, 2007 and unanimously recommended denial based on concern regarding the human impacts of the proposal on Keewaydin Island and the precedent that such an approval would set for future beach facility projects. Page 59 July 19,2007 The required neighborhood information meeting was held on March 19th, 2007, and staff has received no letters of support or objection from the community. Staff is recommending approval of the proposed conditional use, subject to development conditions dated June 27th, with a stipulation that the hearing referenced in Condition 14 be conducted in the same general manner as set forth in the LDC Section 10.08.00, except that the matter will go directly to the BZA. Also references in Condition 14 to the BCC should be stricken and replaced with the Board of Zoning Appeals. Thank you. I'll try and answer any questions you may have. CHAIRMAN STRAIN: Okay, are there any questions of staff? Mr. Schiffer? COMMISSIONER SCHIFFER: And David or Jeff may answer this. How powerful is this precedent? The big concern here is that if we allow this as a conditional use, which stands alone, based on where it is on the island and everything, is that a powerful thing? MR. KLATZKOW: At the end of the day, it depends upon the trier of fact. My personal opinion is that this is precedence. You know, if you get another one before you -- if you say yes to this one, how are you going to say no to the next one if they come up with the same conditions, without being arbitrary and capricious? COMMISSIONER SCHIFFER: And I think the way we could is the next one would have to be nestled between two state properties, away from the residential areas. I mean, this is kind of a perfect location for this. MR. KLATZKOW: But if you say yes to this one, you're going to have to say yes to probably every one, because -- COMMISSIONER SCHIFFER: No. MR. KLATZKOW: The argument would be if you say yes to putting this between two areas of conservation, how can you say no to Page 60 July 19,2007 putting this between areas that are developed? COMMISSIONER SCHIFFER: Because I think next to a residential property this would not be a good use. A thousand feet away from the nearest one this could be a good use. MR. KLATZKOW: And as I said before, it will be up to the trier of fact to say whether or not this is precedent or not. I think it is. MR. MOSS: I'd just like to say that I think if this proposal had been nestled between two residential structures, it wouldn't have met the criteria that are outlined for a conditional use in the LDC. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Could he amplify that? Mr. Moss, could you amplify that -- CHAIRMAN STRAIN: Could you pull your speaker closer, Bob? COMMISSIONER MURRAY: Oh, excuse me. Could you amplify for us why that would be the case? MR. MOSS: Right. Because of criteria three that says the development would have a minimal effect on neighboring properties in terms of noise, glare, economics and odor. I don't think it would have met that. And number four, that it wouldn't have been compatible with adjacent properties. So I think it would have failed to meet those two criteria. COMMISSIONER MURRAY: Thank you. CHAIRMAN STRAIN: Okay, David, I've got a question and it goes back to what you heard me asking earlier about this operations manual, this agreement. In your evaluation of this project, did you believe that you were evaluating the language of that operations manual like we evaluate our LDC language so that it was applicable through a code enforcement action? Page 61 July 19,2007 MR. MOSS: No. The language that we felt was relevant from that operations manual was incorporated as development conditions -- into the development conditions that you have. So no. And that's explained in the staff report, too, that the agreement between Rookery Bay and the applicant is a private agreement that's not enforceable by code enforcement. CHAIRMAN STRAIN: Okay. Now you've heard the applicant believe that their intention was -- or not they believe, they actually stated their intention was that this document was supposed to be a conditional part of this conditional use. Now, my next -- if you haven't evaluated it, and I certainly find the ambiguous language in it hard to put into effect, just as we have the same kind of language in our LDC that we try to strike from it constantly and put in more clear language. I'm just wondering if there's any way that it can be analyzed, or could you have analyzed it? We would have to really rewrite a new code with an overlay for that parcel, almost, wouldn't we have? MR. MOSS: There are a lot of requirements. And that's why we felt a lot of them weren't really relevant. They weren't really land use issues and not -- I mean, the operations manual was created for users of the facilities. So there's a lot of things in there that we didn't think needed to be included as a condition in this CU approval. Like the, you know, all users must remove their chairs by dusk, that sort of thing, or that they can't carry beer around. I mean, those weren't really land use issues that we felt needed to be incorporated into our CD conditions. CHAIRMAN STRAIN: Okay. Mr. Schmitt, I was wondering, do you have staff to -- should this ever be construed to be applicable to code enforcement, do you have code enforcement staff who would have an effective way to monitor any of this? MR. SCHMITT: For the record, Joe Schmitt, the administrator of community development, environmental services division. Page 62 July 19, 2007 It's like any other conditional use. As John David mentioned, the conditional use -- the conditions, if they're placed on this and approved as part of the conditional use, I am faced to enforce them. Just like a conditional use for mining operations or any other type of conditional use. You asked the question do I have the staff to enforce it. I have -- staff commensurate with the budget that I'm provided by the Board of County Commissioners in order to enforce the -- all the codes of the county, both the Land Development Code and the codes of laws and ordinances. All I can do in a case like this will be to enforce the conditions. I only have authority over the conditions that are placed as part of the approval of this conditional use. And it's pretty clear in the conditions that John-David put there. Those kinds of things that deal operationally with picking up trash or those other type of issues, probably most likely those will either be at the state or through Rookery Bay. I will have to -- if deemed appropriate, I would have to send staff out there periodically to ensure that the conditions that are agreed upon are enforced, just like I would any other conditional use. Now, at what -- how many times a year or what kind of enforcement level I would be able to do that is based strictly on the staff that I have. And it's pretty much not a very big staff for the entire size of Collier County. CHAIRMAN STRAIN: Okay, thank you, Mr. Schmitt. Mr. Murray? COMMISSIONER MURRAY: That's an interesting question. They'd have to have a boat to get there. MR. SCHMITT: Oh, I would certainly go -- I do send enforcement investigators out to Keewaydin now. I've already -- I have open cases there right now with vegetation, planting of non-native vegetation and other issues. Any time I need to get out there, in the past, at least, I've either -- Page 63 July 19, 2007 either through the boat that we have, that boat is now of course part of parks and rec., but it would be through our boat in the county or through Rookery Bay. We've been out there when we provided assistance through the Rookery Bay. Or certainly I would -- don't believe there'd be any objection from the operators of the ferry service that if a code enforcement investigator identified him or herself as going out there they would certainly provide transportation to go out and to do a periodic check. But like I said, we've been out there. I have existing cases there right now. COMMISSIONER MURRAY: Okay. And I appreciate your expansion on that. But what came immediately to my mind was that the gate would be locked, so they couldn't access it directly. But if you're in the spirit of cooperation, that would be fine, not a problem. Thank you, Joe. CHAIRMAN STRAIN: Okay, any other questions of county staff? Mr. Kolflat and Ms. Caron. COMMISSIONER KOLFLAT: Yeah, I have one question of Jeff. Is the question of enough manpower to enforce this one of the criteria that should be decided on as far as whether the conditional use meets the criteria? MR. KLA TZKOW: No. COMMISSIONER KOLFLA T: Thank you. MR. SCHMITT: Can I just make sure, and I want to clarify, as this condition is written, it is very clear that -- and in the sentence -- and I didn't bring mine up and I'm going to steal Kay's. But it was very clear, the BZA -- we wrote in the one condition that certainly it's a three-year review process, but any time it's noted that violations do exist, we can call this back at any time. And it's very clear. And that's exactly what we need, because that does give staff the authority to remand this to the BZA. It would not go to Code Page 64 July 19, 2007 Enforcement Board. If there were actions that deemed -- that the conditions are violated, the way this is written now, I could bring it back to the BZA and the BZA can revoke the conditional use. And that is very clear. That is not in our code, but it's clear the way this is written. Any other violation of a conditional use -- right now, for example, I would have to go through a code enforcement case, they would have to bring it to the Code Enforcement Board, and then the Code Enforcement Board would enforce the conditions. But this is very clear, this would provide, frankly, immediate capability of my staff to bring this back to the BZA in a public hearing and revoke the conditions of the conditional use, or even revoke the conditional use the way this is written. CHAIRMAN STRAIN: Okay, Mr. Kolflat? COMMISSIONER KOLFLA T: Yes. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah, condition number 11, I believe it is, as well as number 14, why were they changed from two to three years? MR. MOSS: Just after discussions with the applicant we decided to extend the period to three years. COMMISSIONER CARON: So it was rather arbitrary. MR. MOSS: A little bit. We felt it was a little bit strict the way it was written before, and so we agreed to change them to three years. MR. SCHMITT: And now I'll add again because I'm interrupting, but I will -- normally like mining it's every five years. So just so you can kind of understand the difference. This is a little more restrictive than what we do even for a mining operation. CHAIRMAN STRAIN: On number 14, since Ms. Caron brought up that one, what would you consider -- it says, the last line, in a hearing before the BCC is triggered, the BCC shall review the violations and determine what revisions to these conditions may be Page 65 July 19, 2007 warranted, if any, or whether to revoke the conditional use should a record of persistent or significant violations exist. And again, I'm used to dealing with the Land Development Code language. We wouldn't have any way -- we don't define persistent and significant in the Land Development Code. Now, if you're telling us that the code enforcement people would be enforcing this conditional use should it be approved based on these 14 conditions, how do they enforce persistent and significant? MR. MOSS: Well, we can clarify that, if you'd like to amend the language to define what persistent and significant means. We could do that. MR. SCHMITT: John David, you need to clarify that it's not the BCC, though, it would be the BZA. MR. MOSS: I said that in my presentation. I hope everyone understood that. I erroneously put Board of County Commissioners as a reference in number 14; it should actually be the Board of Zoning Appeals. MR. SCHMITT: In Collier County it is essentially the same body. Our Board of County Commissioners serve as the BZA. But it would be the BZA. And Commissioner Strain, I can only add that if there were complaints and a series of complaints, either noise or other type of activity, yes, it would be subjective but that would be something we would bring back to the board. And basically the board -- certainly that would be up to the applicant to argue that, and I think that it does lend itself to some ambiguity when you use that terminology. But that would strictly be the board, they would make that determination is it significant and does it warrant removal of those conditions. CHAIRMAN STRAIN: Well, I'm not so much worried about the board making the decision on it. I'm more worried about the defensibility of whatever decision they make. And I mean, I don't Page 66 July 19,2007 know, so they do -- they have 21 people there five different times, is that persistent and significant? Or does it have to be 29 people six different times? MR. SCHMITT: I understand. CHAIRMAN STRAIN: I mean, the way it's written, I'm concerned about any kind of defense to enforce it. And I certainly think that if you ever got to a point where you had to enact this, there would certainly be a lot of Clay Brookers involved trying to say, wait a minute, we didn't do that. And there'd be a lot of Jeffs saying, well, you did. And the next thing you know we don't have a way of determining who's right because of the language written here. So I'm not pleased with the language. I don't know of a solution to it, because you wrote it, but -- or somebody wrote it. But I'm suggesting that's not the right language. I'm going to try to think of a better statement as we go on. Okay, anything else of staff at this point? (No response.) CHAIRMAN STRAIN: Thank you. MR. MOSS: Thank you. CHAIRMAN STRAIN: Now I guess there are -- are there any public speakers? MS. DESELEM: Yes, sir, there are. We have I believe six or seven. The first one -- they'd asked me to put them in a particular order, so I will do that. The first one is Anthony Pires. CHAIRMAN STRAIN: Anthony Pires. Okay. And when you're coming up here for discussion, we ask that you limit your discussion to five minutes. There will be some latitude, but I'd ask you all not to take advantage of it. Thank you. MR. PIRES: Thank you, Mr. Chairman. And if I may, if I may ask for some additional latitude; I'm representing a number of property owners in Keewaydin, unincorporated group of individuals, the Keewaydin Property Owners Page 67 July 19,2007 Association. We have tried to divide our efforts up and time up to address particular topics, and so we may overlap, but I would ask your indulgence. I'll try to stick to the five minutes. CHAIRMAN STRAIN: Thank you. MR. PIRES: From our perspective, consistent with a year ago, from our belief, nothing significantly has changed. The only number that has changed is the number deduction in the people on the property. Again, that's the focus. I know Mr. Brooker keeps going back and forth between on the island, on the property. The operations manual says on the subject property. The application says on the subject property. That's the only limitation of the people, the 20 people. And to our argument, our position, that is no limitation. This application does not address intensity of use. The application addresses the implications of the physical structure and tries to divert attention from the intensity of use on this parcel by an age-old tactic of let's look at the other guy, let's look at what we could have done with the footprint. That is the horror story of the two single-family footprint. Last year the horror story was look at everybody else violating the codes on the island. That story is by the boards. This year the story is just not look at our project, let's look at what we could have done. And once again, if you focus on what they're asking for it is again remarkable for the lack of detail and the lack of analysis. The lack of analysis and lack of data on the impact on the island of the intensity of use. They focus on the footprint. With regards to Mr. Brooker making representations today with regards to what will be out there, how people will get there, I think it's very clear to all of us that this facility, contrary to what Mr. Hall said, is an integral part of a revenue-generating upland commercial Page 68 July 19,2007 operation. Naples Bay Resort is a highly intensive commercial hotel/marina/yacht club/residential community. And Renaissance Village, which has not yet broken ground. As to the Naples Bay Resort, I would submit to you that the users of that facility are not like users from Windstar who live in a residential community. The documents I have provided to you show that there are at least 750 club memberships. That's not people, that's memberships. And . that's not capped at 750, because to make it economically viable, as outlined in the document, they can add additional members whenever they wish to. And the owner of the club is not the applicant here today, which I've mentioned that last year and is still the case. Ledge Bridge Partners (phonetic) as indicated in the documents, is the owner of the club, and they're not here. But just to give you an indication of what Naples Bay Resort is all about, I have three website ads that I pulled this morning that I will provide to you to show that the rentals are on a daily, weekly and monthly basis. And here is one for The Cottages in Naples Bay Resort. Vacation rental rates, 2007 rates start at 159 per day, based on a seven-day stay. Gorgeous Naples Bay Resort luxury condominium. Again, The Cottages. Vacation rental rates, starting June 21st, nightly, weekly, monthly. Cottages of Naples Bay Resort. This is one of the few properties in Naples that allows weekly rentals. This is not a Windstar. It is not a residential community. It is an intent destination resort. And those folks who go there will want to use this beach amenity that is an integral part of this Naples Bay Resort. And again, Mr. Brooker says, you know, anything you see on the website is obsolete. It's got double asterisks, it's got disclaimers, those things don't mean a thing. They're representations to the whole world. Page 69 July 19, 2007 He's making representations in the application as to what they proposed, making representations in his presentation, and they're making representations to the whole world. Part of the representations to the whole world, if! could, Kay, and this was pulled this morning, so I don't know if it's obsolete it being pulled at 7/19/2007 at 7:44 a.m. A blowup proportion, you'll see one part, but I've blown it up to regular. It talks about Keewaydin Island under play. And what it says is Keewaydin Island, boat dockage. Now, you heard him say nobody can dock there. Why would you say boat dockage? Also, the operations manual, we went through this before at the EAC. He said nobody can bring any -- you'd have to bring your own chairs, nothing would be provided. Complimentary chairs and umbrellas. Also we heard today that there's no scheduled shuttle service. It's a call basis -- CHAIRMAN STRAIN: Before you take this off-- MR. PIRES: Yes, sir. CHAIRMAN STRAIN: -- Mr. Brooker said that they've cleaned up the website. When did -- how old is this? MR. PIRES: What time is it now? It's three hours and ten minutes old. I pulled it this morning at 7:44 a.m., I wrote at the bottom. Additionally, at the same time I pulled another part of that same brochure that talks about the beach pavilion. And it says, when it is time to relax, our shuttle service offers scheduled trips to exclusive Keewaydin Island. Again, it's a constant issue of one set of representations to one group of people, another set of representations to another group. And with regards to the number of boats, I believe Mr. Brooker today said there is one boat that will be docked there. The operations manual says it can accommodate three vessels. Mr. Jacobsen in the Page 70 July 19,2007 EAC said, I went out there, it can take four or five vessels. And Mr. Jacobsen is the marine compliance specialist for the City of Naples. And again, the City of Naples has this pinned down as to what this operation really is. This is for the record, also it's a community update for the week of May 14th, 2007 from the City of Naples. It mentions what happened during that month and said, the marina compliance specialist who was also a member of the Collier County Environmental Advisory Council had the opportunity to hear three very important issues which came before him. The first was a commercial shuttle to Keewaydin Island by Naples Bay Resort. No doubt about it, we would submit to you this is a commercial operation. And it is a commercial operation that is incompatible with its intensity of use. And again, I would submit to you that 20 people can be brought in, put on this property and then disbursed to the island. They can disburse up and down. So the intensity of use on the adjacent properties and other properties in the district -- that's part of the compatibility criteria. It's not just adjacent properties, other properties in the district will be impacted. And it's not compatible with that. With regards to the existing dock, we concur with the argument or position as articulated again by Mr. Strain in some of the discussion, that that use is changing. Mr. Antaramian was the gentleman who owned the property and got the initial boat dock extension permit back in about 2001. And I believe he also is the individual that received the permit from the agencies that it was to be for a private residential use. This is upgrading it, changing the intensity of the use of that particular dock. There is no analysis of the boat traffic going back and forth. Again, that's missing from the EIS. It's been missing for two years. We've raised this issue for two years and they've been avoiding that issue, again, trying to divert your attention elsewhere, trying to fixate and focus on a foot -- trying to fixate and focus on that site, but Page 71 July 19, 2007 not on adjacent properties. With regards to the operational manual, what I find interesting about the operation manual, you've had some of that discussion, the county is not a party to it at all. And DEP and the developer can change it at any time. It talks in there about it's subject to change, like any other document. So it is a document that no one at the county -- the county commission has no control over. With regards to the agreement with FDEP and Rookery Bay, our position is it's an effort to have an incompatible use. Once again, let's not just fixate on the footprint of the structure that they're trying to have everybody do. It's an incompatible use, and they're trying to cloak it with a mantle of respectability by saying we have this operations manual. We think it's a pretty flimsy manual, we think it's unenforceable, and once again, it can be changed. And really it doesn't have any real help in the intensity of the use of this property. And again, I mention to you that the operations manual, Page 2, no more than 20 persons, including club staff or employees may visit the beach shelter property. It's not the island, it's the property. It's what they've been saying all along. So people can disburse. On the same page, the dock accommodates approximately three vessels, depending on -- that's in their operations manual. So our position is this 20 person cap is illusory. The agreement with DEP is an illusory protective device; it's an incompatible use. You heard Mr. Brooker have this broad paintbrush about wild parties all over the island in all these other houses. People that live on the island will be speaking to you. There's one house at the end, maybe, that has rentals for wedding parties. That's a commercial operation that we wish code enforcement would stop. It's only happened a couple of times in the last few years. So you have a low intense -- low use by the residential properties Page 72 July 19, 2007 on the single-family sites. Contrast that with this particular intensive use that we see here. The representations are constantly shifting, it's a moving target, and we believe it will establish a very bad precedent for this island and open the door for everyone else saying why not me. And getting back to the issue about the dock, we believe under the DEP rules that it becomes a commercial facility. And again, there's been no -- there's no limitation on number of daily boat trips, no statement of number of daily boat trips. No analysis of impact of daily boat trips. It's not addressed either in the application or the staff report. And the proposed use is a commercial operation. There's no real analysis of use of the island, it's just an analysis of a footprint. No analysis, estimate or statement as to daily number of users. There really isn't. They don't know ifthere's going to be three groups of20, four groups of20. But when it gets built out, five, 10 years from now -- because the market's slow, the first three years there won't be much out there. So when they come before the BCC in three years they're going to say gee, everything's fine and rosy. Five, six, seven, 10 years from now when somebody is controlled, all those members, everybody at Renaissance Village, everybody at Naples Bay Resort, that hotel, those slip owners, there will be tremendous pressure and this cap will be unenforceable and that impact will be tremendous. CHAIRMAN STRAIN: Wrap it up, sir. MR. PIRES: Thank you very much. Once again, let's focus on what we have and what we don't have. We have an intense use that's really not been analyzed. They've not provided any data to show the impact of the use. They just keep saying, once again, the facility's footprint. I think we need to recognize and acknowledge the project is an integral part of a high intensity commercial destination resort development. And there's -- what's missing is -- you've heard Mr. Hall Page 73 July 19,2007 say he did some analysis, but there is no analysis of the differences in intensity of use of what one single-family would use on each one of these lots versus this club. That's not here. There's not -- it's not saying five people and two single-family homes are going to have this impact, and 20 people on the site at a time would have "X" impact. And again, there's no limitation on who could be on the island. We would suggest and recommend and request that this board find that it's an incompatible commercial utilization of the island, it's completely out of character with what is there and what should be there in the nature of those single-family homes, and request a recommendation of denial to the Board of County Commissioners. Thank you. CHAIRMAN STRAIN: Thank you, sir. COMMISSIONER SCHIFFER: I have a question. CHAIRMAN STRAIN: Go ahead. I'm sorry, Tony, hold on. COMMISSIONER SCHIFFER: Tony, last time this was here we were really suspicious with the building and everything, it's kind of a wolf in sheep's clothing. But they've really trimmed it down. I mean, analyzing it from a building code standpoint, they really can't get more than 26 people to occupy it. I mean, isn't that exactly what we wanted to do with it last year is to make it realistic, put everything to scale so that they couldn't abuse it? MR. PIRES: I think it's subject to abuse. Once again, there's no cap on who can be on the island. They can say they will regulate who's on their property. The phrase is on the site, on the subject property, which is this 4.32 parcel acre -- 12.32-acre parcel. They can go to the beach and disburse, and then they can get as many people on that island and have an intense use of the island that is not there now that would not be there with the typical single-family use. So no, we don't think that it's really a change. COMMISSIONER SCHIFFER: What you're saying is that there's a loophole in their wording where they're going to bring 20 Page 74 July 19, 2007 people out, they meet the 20, those 20 are going to scatter, they're going to go, oh, look, no one's here, they bring another 20 out; is that what you're saying? MR. PIRES: Absolutely that can be done. Right now they're saying the 20 is a limitation on the subject property, Mr. Schiffer. It's in the application, it's in the operations manual and it's in their materials. That's one significant -- even without that, there would still be an impact that's not there now. It's approximately the impact of eight single-family homes. COMMISSIONER SCHIFFER: But don't you agree that the scale of this certainly is much -- you know, you said nothing changed but the number. But really a lot changed in the building, the capacity of the septic tanks, stuff like that. I mean -- MR. PIRES: The structure itself, but not the use. And that's only been sidestepped in this issue. It's supporting -- it's an adjunct. It's a commercial adjust to an intense upland commercial operation. COMMISSIONER SCHIFFER: But we're only looking at, you know, what we see on this island. That's what we're here to do today. I mean, what they do on the mainland I think is irrelevant to this. And I guess that's the question. You keep being concerned over short-term rentals. How is that supposed to figure in? Because what's happened on the mainland, you know, could be a queuing problem to get to the island, but essentially only 20 people are on this island, so how does that effect our decision today? MR. PIRES: Once again, we would submit there's not just 20 people on the island. Again, all of the materials just say 20 people on the subject property. That's consistent in their operations manual and in their application. And that is one of the major issues. And even if it was just 20 people on this site, that is still more intense than what would be there utilizing this site with a single-family residence. And again, it's a continuous utilization. You will hear that the Page 75 July 19,2007 single-family homes that are out there now, there is not that frequent use, number one. Number two, there aren't that many people in those -- there are like only 12 homes out there. You probably have a sense there's a whole bunch of houses out there? There aren't. There's only about 12 houses out there. And their utilization of that property is very, very low. COMMISSIONER SCHIFFER: The other question is, you're showing us this marketing material? MR. PIRES: Yes, sir. COMMISSIONER SCHIFFER: How are we supposed to use that? What does that mean? I mean, how they market to the community, what does that have to do with our decision today? MR. PIRES: I think it shows what they intend to do, and what they've been intending to do, what they've been telling everybody they intend to do. They're telling us one thing here and they're doing a whole bunch different to everybody else. And they change it only after they get caught. I think that would be an indication that this board can make a determination as to their good faith in the representations here. COMMISSIONER SCHIFFER: So your opinion really is based on the fact that there's loopholes where they're going to -- the use that they claim, that 20 is not going to happen. This is going to be way over-used -- MR. PIRES: That part, sure. COMMISSIONER SCHIFFER: -- the island is just going to be like a landing craft and they're going to scatter. MR. PIRES: It would be an intensive commercial adjunct to their intent of upland commercial operation. It's an integral part of their amenity package is our position. COMMISSIONER SCHIFFER: Okay, thank you. CHAIRMAN STRAIN: Mr. Vigliotti? Page 76 July 19, 2007 COMMISSIONER VIGLIOTTI: Tony, I have a question. MR. PIRES : Yes, sir. COMMISSIONER VIGLIOTTI: What is keeping the client or anyone else right now from taking a boat, bringing people to Keewaydin Island, the public, and dropping them off or giving their clients or giving their hotel guests a boat and telling them how to get to Keewaydin Island? What is stopping them now? MR. PIRES: I think at the present time the dock is there for the single-family utilization of that island. Or its utilization -- that's how it was originally permitted, that it's an unbridged barrier island and they need to get a way there. I don't know if that would be an allowable use. COMMISSIONER VIGLIOTTI: The client could, the applicant or anyone, any hotel resort, can give their client, their guest, or supply a boat to beach it and bring their people to Keewaydin Island. MR. PIRES: I don't know if they can do it now. I don't know if that's an allowable use. It's a conditional use. That's why we're here today. COMMISSIONER VIGLIOTTI: No, not on that property, but other places on Keewaydin Island. MR. PIRES: I think on other places it could be, other than those that are grandfathered. I believe it mentioned about Windstar, Marker Four and -- COMMISSIONER VIGLIOTTI: No, no, at the public part. MR. PIRES: -- the change in regulations -- CHAIRMAN STRAIN: One at a time, please. COMMISSIONER VIGLIOTTI: I'm sorry. At the public parts, not particularly private property. MR. PIRES: Oh, public part. COMMISSIONER VIGLIOTTI: Yes. MR. PIRES: Whatever the regulatory scheme is-- COMMISSIONER VIGLIOTTI: The applicant or anyone else Page 77 July 19,2007 can bring a boat, beach it and drop clients off any time. What's the difference between that and -- they can't use the facility because that's held to 20 anyway. MR. PIRES: The beach --I'm sorry, people can access the beach, that's correct. But it's not on a regimented, promoted regular basis. Here you have an integral part of a community in a project. It's a club to which they join and they pay substantial fees to. That's the big difference. It's not where you join a club and we'll take you to Keewaydin every day. This is what you have here. COMMISSIONER VIGLIOTTI: Okay, but we could monitor this versus if the client or applicant or anyone else did it with their own boat or gave their guests a boat we could monitor that on the public beach. MR. PIRES: You can monitor any activity there if you have it staffed with somebody on the facility, which -- COMMISSIONER VIGLIOTTI: Thank you. CHAIRMAN STRAIN: Tony, the only thing is a follow-up to Brad's. You had responded that they kept saying the property, the property is where they're going to limit it to 20. I don't know how they could legally limit people on other parts of that beach. Because I've pulled up there on my boat, when I had one and when I had dogs and everything, I would pull up there and they'd chase me off the beach because I had dogs. But I still would do it. But I know that you can't limit people from using that beach. Although at the time I thought they could and I fled. I should have stood my grounds. But I don't think they can be held to a level of monitoring the island in regards to their people using the island. I think they have to limit their discussion to the property, because that's the only part they control. MR. PIRES: That becomes a problem when you talked about this would be the landing and disbursal point for substantial impacts on the island, if you allow this use to occur. Page 78 July 19,2007 CHAIRMAN STRAIN: Okay. So your thought is they would not -- the 20 that are on the site would disburse and before they counted one off, they'd bring more on. MR. PIRES: That's correct. That would be possible, absolutely. CHAIRMAN STRAIN: Okay. Well, we'll address that with Mr. Brooker when he comes back up then, thank you. Mr. Schiffer? COMMISSIONER SCHIFFER: Tony, you know the island well, I mean, the properties and like you said -- MR. PIRES: My clients do. I don't know it that well. COMMISSIONER SCHIFFER: But is there any other parcel on the island that's isolated like this by state -- MR. PIRES: My understanding, there is. And my clients will address that when they're speaking. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: Thank you. Next speaker, Kay? MS. DESELEM: Kristina S. Tomblin. CHAIRMAN STRAIN: Thank you. And so the speaker after Ms. Tomblin can be prepared, who is that? MS. DESELEM: James 1. Jentgen. MS. TOMBLIN: James 1.? MS. DESELEM: Jentgen. CHAIRMAN STRAIN: Thank you. MS. TOMBLIN: Good morning, Commissioners. I'm Kristina Tomblin. I have been a resident of Keewaydin for 18 years, since 1989 . We have a two-bedroom cottage out there. It's not the mammoth house that Mr. Brooker relayed. And I have a couple of misconceptions that I'd like to straighten out in regard to the island. There are 16 structures on the island, plus two small places used by The Conservancy: One for storage of their vehicles that they use for their monitoring of the turtle nesting season. And out of those 16 Page 79 July 19,2007 other structures on the island, only 10 are habitable. Weare probably the only people who live out there every possible weekend. There is nobody who lives there permanently. There is one resident who lives in Ireland. There are people who come there occasionally. It's not seasonal use. Very rarely do we have people -- we don't have any get-togethers, for instance, with our neighbors. That's how sparsely populated the island is. The reference to the wild parties: We have never had a wild party out there. Our children and grandchildren may come. Occasionally they -- most of them don't even live here in Naples. The only home that has been used for commercial use is the property down at the south end that has four bedrooms. It's a Kanzler property. It's currently on the market for 12 million. It has quite a bit of property with it. And if it has been used illegally, if there is code enforcement, I wonder why it hasn't been looked into. They've used it for weddings, for fishing parties and so forth. There was a charitable event recently at one of the homes. That happened one time. Otherwise, I am not aware of any other charitable events on the island for the 18 years I have lived there. My main focus was going to be on the access of emergency vehicles related to an incident that we ourselves had at our home. We had a very bad accident where somebody fell off the ladder 18 feet. And we called -- I called 9-1-1 to ask for the helicopter to come out. And the helicopter first of all didn't know where Keewaydin was. Number two, the county has put up numbers on the beach approximately -- I believe they're a quarter of a mile apart. I gave that number, I gave the number on the dock, which we're required to have, and the helicopter still couldn't find us. And so my concern is of course if there are going to be 20 people in a compacted use or in a compacted space and there is an accident, is the helicopter going to be able to come in there and land if there's an Page 80 July 19,2007 emergency. I feel strongly that this is a foot in the door for commercial use, when most all the homes out there are single-family use, except for those few, like Windstar, which are owned by the residents in Windstar. It is not a rental property. And for that use (sic), I feel this is a foot-in-the-door application and I strongly recommend that the commissioners deny the use. Thank you. CHAIRMAN STRAIN: Thank you, ma'am. Okay, next speaker, please. MS. DESELEM: Is James 1. Jentgen, followed by Jack Conroy. MR. JENTGEN: Jim Jentgen. I have a cottage on Keewaydin Island, and I also own -- we own, my family and I, two lots just south of this proposed project. I think -- also Mr. Brooker had mentioned there were 25 houses, which I think he was in error by 50 percent. We spend quite a bit of time there, more than anyone else. As Kris said, there are no permanent residents. We probably spend 90 days there a year. We're familiar with the island. It's very lightly used. I think when you talk about intensity of use, the thing that has escaped everyone is that we have a huge pool of potential users in Naples Bay Resort. Huge. We're talking about 750 units. They're all going to be bought by investors for the purpose of putting in a rental pool. So we have a huge pool. And then we're renting by the day and the week and the month. Mostly probably by the day and the week. And if you multiply that times 365 days and then take out this and take out that, it's still huge. So there's going to be a huge demand. Okay, I respect the fact that they've reduced from 56 to 20. But what I say, is there going to be 20 people there all the time, because there's going to be so much demand. The normal person going to the beach doesn't spend -- remember now, their operating hours are dawn Page 81 July 19,2007 till dusk. Most people, a couple of hours on the beach is about all you can take. So there's going to be a huge turnover. And that's what I mean by intensity of use. You're not going to -- I think characterizing it as taking five people out, I think that's ludicrous. This thing is a commercial venture. Why do you think that they're spending all this money? Is it a charitable deal? No, it's commercial. The purpose of this is to sell units to investors who will then put them in a rental pool, somebody will manage that for profit, and it's to provide an amenity to sell real estate. And I think it's totally unwarranted, I think it's an abuse of the character of the island and the environment. And that's about all I have to say. CHAIRMAN STRAIN: Thank you, sir. Next speaker, please? MS. DESELEM: Is Jack Conroy, followed by J.P. van Dongen. MR. CONROY: Good morning. My name is Jack Conroy. I've been basically in the same business that Jack Antaramian's been in for about the last 44 years here in Naples. Been involved in commercial real estate, land development. And over the many years that I've been here, I've developed an enormous respect for Jack Antaramian. He's an extraordinary, smart man. He moved into Fifth Avenue when Fifth A venue was a mess. He began to purchase real estate there, develop real estate. And I was extraordinarily impressed with his ability to sense the market. He's a marketing genius. He also doesn't suffer fools. He's not about to make decisions based on something that mayor may not in fact occur. He's very smart. As a consequence, my belief is that as a marketing genius, he understands the attractiveness of access to the beach. He understands it, he incorporates it in his marketing. And of course with our current state of real estate, residential real estate, the developments that he's got are not going to come to conclusion, as Tony pointed out, for a Page 82 July 19,2007 multiplicity of years. Jack Antaramian started developing real estate in Fifth Avenue many years before Fifth A venue grew to becoming a very attractive investment. In fact, it was not a particularly attractive place 15 or 20 years ago. So he's going to decide as to what his marketing technique ought to be, based on an understanding of what is going to sell. This will sell. That becomes the issue. The second part is that the enforcement provisions are, in my judgment, very difficult. Especially if you have DEP involved in any kind of enforcement. I provided a letter to each and every one of the commissioners, pointing out the chapter and verse relative to the covenants and restrictions dated October 29th, 1993, when the 2,400 acres at the north end of Kee Island was sold to the State of Florida. There was a requirement within the documents that the NB -- or RBNERR, the Rookery Bay Natural Environmental Research place, that these people would -- the enforcement personnel would patrol the beach sites by water and by A TV to assure compliance with management objectives. They were also required to provide a management plan for Kee Island. The reality is, Rookery Bay Department of Environmental Protection did not in fact, A, create a master plan for Kee Island. Although they had a Rookery Bay plan, they didn't fulfill the obligations that were required under that agreement. And secondly, they did not in fact have any enforcement people. I don't think they have any enforcement people. So I think the issue is very simple. There's a demand. Jack Antaramian will perceive that demand. Secondly, there is not a sufficient enforcement procedure that will maintain a situation where the -- this fragile little ecosystem is going to be preserved for all time. Page 83 July 19,2007 As a consequence, I would also recommend, along with other folks, that the planning commission deny the conditional use before it. CHAIRMAN STRAIN: Thank you, sir. Next speaker, please? MS. DESELEM: 1. P. van Dongen, followed by the last speaker, who is Roger Jacobsen. MR. van DONGEN: Hi. Good morning to you. I guess it is still morning. My name's 1. P. van Dongen, I'm a property owner on Keewaydin Island. I also happen to represent a group of individuals that own property out there as the president of Keewaydin Island Property Owners Association. And we retained Tony Pires -- COMMISSIONER KOLFLAT: Would you speak closer to the microphone? MR. van DONGEN: We retained Tony Pires to represent us in this rather complex legal wranglings of land use issues. Our concerns are very simple here. One is the intensity of this use that is being proposed to you. This is a commercial enterprise. And they're trying to get their foot into the door of a single-family residential, very fragile, very special ecosystem. The intensity is far more than the footprint of a building. The footprint of a building is of course important. However, humans, I think we all have been exposed to humans. You know on this board probably more than most. You know what human nature is. If you are seeing this as the same or less intensity than a residential use, I think that they've snookered you. This is a huge intensity. And for them to say it's going to be 20 persons on the site, well, that's two or three times a day and disbursing on the beach, I don't even think that's going to be enforced at all. The reason for that is that the huge pressure on this club to supply beach access that they've advertised, the membership of the club is $40,000. Can you tell me some body's going to buy a boat slip, pay $40,000 for Page 84 July 19, 2007 their membership and then be told they can't use their boat to go to the island that is part of the amenity? And have a hospitality staff who's trained to cater in as nice a way as possible to people, become the policeman, or ask DEP who has their plate very full to become the policeman of a private club? I just do not see that happening. And I as a neighbor to this development really do not want to become a policeman myself. I think this is the time to nip this in the bud and say no. This environment is unsuitable. This use is incompatible in our view as the community. Keewaydin Island will suffer if this is allowed. Precedent: I believe this is a precedent. And I appreciate the county attorney agreeing with us there. There is one other piece of land that is not dissimilar to this, sandwiched between two large state-owned lands further south. But this is something that once the door is open, the floodgates will be opened. We'll see that become a club island. And it's not in the community's interest, it's not in Keewaydin Island environment's interest, it's definitely not in the public's interest. That place will become -- the environment will be devastated if we allow this to happen. And I plead with you, as being charged with this responsibility, please consider what you do here. And I am asking as part of a representative of the community that you find for rejection, to please recommend rejection of this petition when it comes in front of the Board of County Commissioners. Thank you for your time. CHAIRMAN STRAIN: Thank you, sir. Next speaker? MS. DESELEM: I was given another speaker card, so this is your next to the last speaker. Roger Jacobsen, followed by Keith Laakkonen. And I'm -- CHAIRMAN STRAIN: Keith has got a difficult name to spell rather than enough to say, so -- Page 85 July 19,2007 MR. JACOBSEN: Can I use this one? This one is okay? My name is Roger Jacobsen. I am a member of the Environmental Advisory Council. So I just wanted to echo some of our concerns that we had, too. We absolutely agreed with you. We thought they came back with a beautiful proposal, that they really did their homework and really tried real hard to bring something back with all of the questions that had happened. We also very much liked the manual that Keith wrote up. We thought it was innovative, we though it was intensive, and we thought it was intriguing. Some of the concerns that we really tried to echo was right now Rookery Bay has an extremely difficult time enforcing anything on Keewaydin. Take a ride down to the south end of Keewaydin, and you'll see that anything can happen at the southern tip of Keewaydin. Dogs, alcohol, fights, parties, fireworks. They do not have that person right now. Now, we were told by the applicant that there is discussions and there's negotiations to work with Rookery Bay on that, but there is nothing in place right now. Hence, our decision that it was a no vote at that particular point. Commissioner, you brought up the point about boats on the beach. Right now boats can go right up to the beach, they can get out on the beach, they can play all they want. There's no restrictions on that. So one of our concerns were, and Tony was eluding to it in the language, 20 people on the property. But does that allow 20 more boats in the water, 50 people on the beach, because that's fine, with these 50 people alternating, coming up using bathrooms. If you look at Naples Beach, the crowd always crowds around where the bathrooms are. So will all of these owners of these properties end up on boats on Page 86 July 19, 2007 the beach? Which is fine, nothing wrong with that. And as long as there's not 20 ofthem in that house, then you're still within your legal limit. So that was one of our concerns. The issue of building two one-family houses were brought before us. It wasn't an issue that we were voting on, but some of our comments were, a homeowner that lives there treats that property -- and they're living there for a reason, they're living there because they love that environment, they love what they have out there. That homeowner will treat that property a little different than that person that's coming down for a day, a week, or a month. We see that on the beaches every day. We did get testimony at ours that there were homeowners on Keewaydin Island that were approached by other developers that said if this goes through, would they be interested in selling their property. So we did take that into consideration. And we were quoting the chairman of the EAC quite a bit. So the final quote I'll end with is he had said that they were extremely arrogant behavior with an alternative intent. That's all I have. Questions for the commissioners? COMMISSIONER SCHIFFER: I do. And I'm having trouble getting my arms around this intensity. Because the way they've designed it, you come up on a boat, you walk on the boardwalk, you can go into the building or you can continue to walk and then your feet hit the sand right at the beach. So what are we -- I mean, they've got them corralled through the whole site, so -- MR. JACOBSEN: Not from the beach side, though. From the beach side -- from the Gulf side any boat that wants to can come along that beach. And if they're members of that club -- whether they're members of that club or not, their restriction is the trespass law that as you come off the beach onto their property where they're -- COMMISSIONER SCHIFFER: Mean high water. Isn't that the property line? Page 87 July 19,2007 MR. JACOBSEN: Correct. As you come off the beach. So could there potentially be 30, 40, 50 of their members all on the beach, but as long as 20 of them at a time are not using that house, they're still within their guidelines. Which now you have 20, 30, 40 people coming back and forth using bathrooms, but as long as there's not 20 people within their property they can still have 30, 40, 50 people. COMMISSIONER SCHIFFER: So the intensity that everybody's referring to is that beach armada out there that -- MR. JACOBSEN: Correct. They can't restrict who's on the beach. People can walk up and down the beach. COMMISSIONER SCHIFFER: They can do that today. MR. JACOBSEN: Right. People can go on the beach, people can pull up with a boat and go on the beach. So they can't restrict that. But if30 of their members are out in front of their beach spread out and there's only five of them that are using the bathroom or up there at anyone time, then all 30 of these members can alternate round and round and round using the bathroom. COMMISSIONER SCHIFFER: And the attraction's going to be the bathroom. MR. JACOBSEN: Always. Always. I see it on Naples Beach. COMMISSIONER SCHIFFER: If the bathrooms weren't there, the people wouldn't be out there. MR. JACOBSEN: Well, not necessarily. Look at the southern tip of Keewaydin. They create their own bathrooms. COMMISSIONER SCHIFFER: Right. And that's what I'm more afraid of. MR. JACOBSEN: They create their own bathrooms. COMMISSIONER SCHIFFER: Okay, thank you. CHAIRMAN STRAIN: Before you leave, sir. Mr. Kolflat? COMMISSIONER KOLFLA T: Yeah, but there's nothing now that stops 30, 40, 50 boats from docking at Keewaydin Island on the Page 88 July 19,2007 sand side -- or the Gulf side, is there? MR. JACOBSEN: No, sir. COMMISSIONER KOLFLA T: I mean, this project would not change that. MR. JACOBSEN: I'll tell you where it might. Right now that whole center does not get a lot of activity. That whole center of Keewaydin Island. Very rarely. They're all down the southern end. There's very few boats that anchor and play along that center section. COMMISSIONER KOLFLA T: I disagree. I always liked that part there where the project is because it's more quiet. If you go on the south end, you're nothing but a traffic -- MR. JACOBSEN: Oh, absolutely agree. There are occasional boaters like yourself and like myself too that like the seclusion. CHAIRMAN STRAIN: You need to keep this down a little bit on your reactions. She-- MR. JACOBSEN: Okay, I'm sorry. CHAIRMAN STRAIN: -- can't type both of you talking at one time. So please. MR. JACOBSEN: I should know better. COMMISSIONER KOLFLAT: So as far as I can see, there still -- that would exist right today that you could have that heavy traffic come there, even ifthere was no project there. MR. JACOBSEN: Agreed. But the EAC felt because of the bathroom aspect, that changes the amount of people from the club that could actually utilize that section. CHAIRMAN STRAIN: Thank you. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: One question. You brought up the one-family house. Suppose someone in the organization owned that house? How would we monitor that? MR. JACOBSEN: Well, I think any monitoring on Keewaydin Island's going to be very, very difficult. Whether it's Rookery Bay doing it, code enforcement doing it. Police officers and Fish & Page 89 July 19,2007 Wildlife that I talk to, their priority is the crime. They have their priorities also. COMMISSIONER VIGLIOTTI: Where I'm going, though, is the one-family house that you referred to is somebody who actually lives there. Suppose someone in the Antaramian organization or that group, the general manager of the hotel owned that house. How would we then monitor it? MR. JACOBSEN: What monitor -- COMMISSIONER VIGLIOTTI: We can't. MR. JACOBSEN: Of course not. No, of course not. We looked at it that the homeowner that may have that 100-person party a couple of times a year, it's still their property, and they're going to be responsible for their own property. We weren't ruling on whether it was a one-family. We didn't have that proposal in front of us. We had the proposal that they have in front of you now. Follow me? COMMISSIONER VIGLIOTTI: All right, thank you. CHAIRMAN STRAIN: Thank you, sir. Kay, next speaker? MS. DESELEM: Last speaker is Keith. CHAIRMAN STRAIN: Just Keith. Keith from Rookery Bay. He can spell his name for the court reporter. MR. LAAKKONEN: Keith Laakkonen. That's L-A-A-K-K-O-N-E-N. I'm the resource manager and coordinator for Rookery Bay. And I hadn't planned on speaking, but obviously I want to make myself available for questions. And when you hear your agency's -- THE COURT REPORTER: Were you sworn in? MR. LAAKKONEN: No, I was not. (Speaker was duly sworn.) MR. LAAKKONEN: I hadn't planned on speaking, but when you hear your agency's name said a lot, you tend to want to get up and Page 90 July 19, 2007 respond to a couple of things. As the resource manager and coordinator for Rookery Bay, a part of my duties involve exotic species removal, public access, prescribed fire, hydrologic restoration, land acquisition and a whole host of other things. For example, we're actually going to be having a pre-bid meeting to actually get a maintenance round of exotics removed off Keewaydin August 1 st. And we're going to be going back and re-treating the state-managed areas. So we spend a lot of time managing these areas. Part of the other ways we manage is actually through partnerships. We're working with FWC right now on an education program called Team Ocean. We're actually going out and engaging boaters one-on-one. We're actually also -- we also partner with the Collier County Sheriffs Office on getting enforcement from them, we partner with DEP law enforcement to get enforcement from them, and we also partner with Collier County Code Enforcement. Code violations have occurred out there. And if!'m not mistaken, the majority ofthose have brought to the attention of Collier County by Rookery Bay staff. So in fact in some ways we actually are enforcing some stuff through our creative partnerships that we actually have. With that being said, one of the things that this agreement does do is it sets a precedent. Ecologically it would be better if nothing was on Keewaydin. However, that's not the intent of the taxpayers of Florida when they bought Keewaydin Island. They bought it to balance, and we must balance public use and working with developers and other interests on the island. That's been the bread and butter of Rookery Bay for 28 years, and we've done a pretty good job at it. That being said, once this agreement is set in stone, I guarantee you, we're going to enforce it. Because we're going to be very excited at that opportunity. Ifthere's something -- if there's a violation going on out there, we definitely will enforce it. Page 91 July 19, 2007 We actually have a track record of doing this. We've actually had some agreements with developers next to the preserve in other areas. They've strayed outside of their bounds and we have come back and enforced things on them through Collier County and through DEP and through the Water Management District. That being said, we don't see any difference between commercial impacts and private property impacts. As has been said a lot, there's other commercial properties out there. I've seen them. They are having events out there. There's other things going on. There's other tour operators that are currently utilizing the reserve. Eco tour operators who are currently dumping people off and they're actually -- those people are actually having impacts on resources within the reserve. Routinely I've seen this go on. An agreement like this, we support the agreement, because it actually gives the responsibility and culpability to the property owner for actually protecting the island. And also I want to address something Mr. Conroy said. That management plan for Keewaydin, it was written. My boss Gary Litton did write that. And it was incorporated into the overall management plan for Rookery Bay. In 1993 Rookery Bay was managed by the Department of Natural Resources, which actually merged with the Department of Environmental Regulation. At that point we did have enforcement personnel. When that merger happened in 1993, we became the DEP. Since then we've actually -- our law enforcement has actually gone away to the Fish and Wildlife Commission. So that's what that addressed. Currently we do not have enforcement staff, but at the time that was written, that was the case. So that management plan was written and incorporated into the overall Rookery Bay management plan. If you'd like copies of that, we can send you that. So with that being said, I'd open up to questions. Page 92 July 19,2007 CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Keith, they have a requirement that nobody can arrive at this thing other than through their own vessel. MR. LAAKKONEN: Correct. COMMISSIONER SCHIFFER: So the description they describe isn't allowed in one of the conditions. Wouldn't that be the easiest thing for you to police -- MR. LAAKKONEN: Yeah. COMMISSIONER SCHIFFER: -- seeing a bunch off on the Gulf side? MR. LAAKKONEN: And in a situation like that, we would probably do something that we don't do with other people, we don't do with other properties on the island, say who are you, where are you going. We would be upfront to ask them that question. We don't do that now because that's kind of overstepping our bounds. But I think this agreement would give us the ability to do that. COMMISSIONER SCHIFFER: But you'd be able to see if they're abusing their restroom facilities. MR. LAAKKONEN: Yes. COMMISSIONER SCHIFFER: The other question is, is there any other site on this island that has that unique situation of being pocketed between preserve lands like this? MR. LAAKKONEN: There's at least -- well, there are some smaller parcels which have individual state lots, small state lots. There's one parcel on the south end which has been mentioned. And the trust for public land is actively trying to acquire that property, to donate to the state right now. There's also the property on the north end, the Donahue Estate, which actually is sandwiched by state land. COMMISSIONER SCHIFFER: Right. And then that's a separate compound. But when I went up the island and everything, Page 93 July 19, 2007 this looked like a really unique situation, where it really was the only piece of private property. I mean, in one case four miles to the north, 1,000 feet to the south. MR. LAAKKONEN: Right. And one of the unique things too is that this area of the island tends to be used less by some listed bird species, such as least terns or skimmers and things. They've actually never been seen nesting in this area of the island. It's always been to the south. COMMISSIONER SCHIFFER: All right, thank you. CHAIRMAN STRAIN: Mr. Murray, then Mr. Kolflat. COMMISSIONER MURRAY: Keith, good morning. You mentioned that you're aware of misuse, and that you also mentioned that you have been in cooperation with others attempted to do something about it. The extent of the use, do you keep records with regards to those things? MR. LAAKKONEN: We definitely keep records of violations where they occur, and we also -- you know, we have extensive photo records of, you know, when we're seeing things. We also have records -- I had mentioned to you, we actually went out there before Canoe Race Day and after Canoe Race Day and actually documented the amount of trash on the south end. So we actually kind of had a baseline. So we actually do have some records. COMMISSIONER MURRAY: All right. Well, you don't have code enforcement people or your own enforcement people. And so with those records, that information -- for instance, the eco-tour persons, if you were to -- would you report that to the county because they may not be licensed, they may not be (sic) a right to have that eco-tour activity there? Or if it is a legitimate activity, then it becomes another question. Could you focus on that for the moment? MR. LAAKKONEN: When I was speaking of what the eco-tour operators were doing, you know, what they'll come on and they'll Page 94 July 19, 2007 actually do is, you know, some of them may, you know, be flushing birds off -- you know, birds out of area, where they may be walking up and actually disturbing birds and disturbing wildlife, and maybe even taking live shells. You know those are potential -- I'm not saying they're doing it, please don't misquote me there. But, you know, one disagreement -- you know, one of the conditions I wrote in the agreement was not to disturb nesting or resting birds, you know. And what this agreement does is it's designed to prevent things like that. You know, we've seen some of the tour operators come up and -- you know, some of the people leave trash behind. Or the tour operators just sit on the boat and watch the whole thing and drop them off and go. COMMISSIONER MURRAY: So you're saying human behaviors are bound to be a negative. Because I got the impression that the eco-tour operator or operators are there and operating today, as it were. MR. LAAKKONEN: Yes. COMMISSIONER MURRAY: And so if those bad habits exist, they'll continue to exist. You really can't do very much about it. That distresses me a great deal. And I'm not trying to hold you accountable for it, but it is, I think, a piece of evidence for us. MR. LAAKKONEN: And one of the ways we do try to address that -- I was also through our Crystal training program which you do have an eco-tour operator training session. Now, some of the people I referenced may have not taken that. You know, we can't require people to take training, you know, to show them how to be environmentally friendly and be good operators. COMMISSIONER MURRAY: What a shame. One other question I have, and maybe this is curious, but the fines, if levied, would go to the Friends of Rookery Bay. And Rookery Bay Friends, the purpose of that group is to raise funds for you, is it not, for the Rookery Bay activities specifically? Page 95 July 19,2007 MR. LAAKKONEN: To support-- COMMISSIONER MURRAY: And to help -- yeah. So it's kind of like if they are going to get penalized for something, Rookery Bay will get the benefit for that, or of that. And I'm not uncomfortable in one sense, but I am uncomfortable in a way that it almost -- that's what I meant before about amicus. You would have wide latitude. You'd be the individual, wouldn't you, that would make the decision whether or not that was really -- rose to the level of a violation. For instance, using the illustration of numbers of people on the beach: They arrive, they disburse, and then some more arrive, they disburse. And this custodian there is obliged to keep account of 20, 19 plus himself, or herself. And you happen to be coming by and someone had to run to the bathroom and you now had 21. You'd have latitude to say, ah, that doesn't apply. Now, I know I'm working with fly specs here, okay, but fly specs tend to accumulate and nobody likes them. So I would like to -- if you followed what I've just related to, is that not true that you would have wide latitude in your judgments? MR. LAAKKONEN: I actually don't believe I would have wide latitude because I'm a public employee and I have certain oaths of integrity and loyalty, and to keep to the management plan of Keewaydin and actually to do my job properly. I personally don't allow myself that latitude and I don't allow my employees that latitude. COMMISSIONER MURRA Y: And I respect that. And I'm glad you went on the record with that. And we know that you'll do that based on what you've said. What we have to be concerned is the future. We're today not dealing with today, but we're really dealing with tomorrow. Thank you very much. MR. LAAKKONEN: Thank you. CHAIRMAN STRAIN: Mr. Kolflat, just a moment. Let me follow up something, if you don't mind. Page 96 July 19, 2007 Keith, there's no rules or laws that you know of that people can't pull up from the ocean side and drop people off on the beach? MR. LAAKKONEN: No, sir. CHAIRMAN STRAIN: There's no rules or laws that you know of that tour operators can't pull up and drop people off on the beach? MR. LAAKKONEN: No, sir. CHAIRMAN STRAIN: So you wouldn't have a need to call code enforcement for those kind of instances. MR. LAAKKONEN: We would only call code enforcement say if those people were littering or if people had dogs off leashes, which is actually not allowed under our rules, actually, too. CHAIRMAN STRAIN: Yeah. That's why I ran. MR. LAAKKONEN: It wasn't me, right? CHAIRMAN STRAIN: This was long before your time. In fact, it might have been before Rookery Bay's time. It was years, decades ago. So hopefully that's a cold case and they can't go after me now. But I did check with code enforcement prior to today's meeting to find out what actions they have had down there. And they haven't had that many. There's two cases right now that are under -- they were clearing cases, and they're under a compliance review or compliance action. And those are apparently being fixed. And other than that, it's seems there have been some minor ones, like chairs on the beach or something like that they've occasionally been down there taking care of. So, I mean, the citations or the involvement of code enforcement hasn't seemed to be needed to be that great. Most everything seems to be taken care of. I don't know if you see any more that needs to be brought to their attention, but they seem to have attended to the things that, you know, were addressed. MR. LAAKKONEN: I know that a significant amount of things were brought to their attention. Now, whether those followed up, you know, as a formal case or not, I can't speak to that. I don't really -- I'm Page 97 July 19,2007 not as familiar with how code enforcement actually works internally. You know, there were a lot of things. And we work very close with the one investigator out there, you know, and she's a very diligent investigator. CHAIRMAN STRAIN: Okay, thank you. Mr. Kolflat? COMMISSIONER KOLFLA T: My question is not directed to Keith but relative to public comment. Is now the time to do it, or do you want to wait? CHAIRMAN STRAIN: No, we've got a ways to go before we get there. COMMISSIONER KOLFLAT: Okay. CHAIRMAN STRAIN: Let's get past all the hearing first. Hearing no other questions, Keith, thank you very much. MR. LAAKKONEN: Thank you. CHAIRMAN STRAIN: Appreciate it. Kay, is there any other public speakers? MS. DESELEM: No, sir. CHAIRMAN STRAIN: Okay, Mr. Brooker? MR. BROOKER: Thank you for the time for rebuttal. And I'll try to be very brief. A lot of the issues we've already covered. First of all, with regard to whether staff had reviewed the operations manual as part of its review and in drafting the staff report, I would submit to you that even without the operations manual rules, that comprehensive regulatory scheme that we are offering, they recommended approval. Your own professional staff recommended approval. So again, not to be overly technical, but our submission of those materials was intended so that those operations manual rules would in fact be part of the conditional use and the conditions placed upon any approval, and they would just add an extra level of protection above and beyond which staff reviewed. Page 98 July 19,2007 The persistent and significant violations language of condition number 14, that was actually deliberate language by us. That was suggested by us in order to allow super enforcement authority, essentially. The ambiguity, if that is in there, is deliberate. Because that allows -- the alternative is we could list out what rules are minor, what rules are major, which ones would trigger, which ones are significant. We can go through that entire exercise. But we believe that weakens, that waters down the oversight, the enforcement authority. Because we can be hauled back for anything before the BZA in the event there's a violation of anything. Now, whether -- we can get into the argument of what's persistent or what's significant. There's already a boiler kind of a measuring stick in the agreement with DEP that's going to be quite persuasive against us, if a lot of Clay Brookers get up and try to argue that when something is not persistent or something is not significant. But again, the intent of that was to deliberately leave it ambiguous so there would be more enforcement, more oversight and more authority possibilities. CHAIRMAN STRAIN: Clay, before you leave that point, if there was language that suggested that would tighten that up, is that something you'd object to? MR. BROOKER: No. CHAIRMAN STRAIN: Okay, thank you. MR. BROOKER: And with regard to condition number 14, I must state for the record that in the event the BZA revokes our conditional use approval pursuant to that condition, then of course all rules and regulations and all conservation easements that we have offered must also be revoked and terminated. MR. KLA TZKOW: No, no, no, no, no, no, no. MR. BROOKER: A quid pro quo. MR. KLATZKOW: No, no, no, no, no. That's not how this is written. Page 99 July 19,2007 MR. BROOKER: That is our position. Because-- COMMISSIONER MURRAY: I thought it was in perpetuity. COMMISSIONER ADELSTEIN: No, you can't-- CHAIRMAN STRAIN: Guys, we've got-- MR. BROOKER: Let me explain the position. We are offering a conservation easement over 90 percent of our private property. Not one other private property owner on Keewaydin Island is willing to do that, has yet come before in three or four public hearings. So if we are offering that as an inducement, as a condition of this approval, it's a quid pro quo, it must come with a catch that if you revoke it, we're still struck with a 90 percent easement over our property? That's private property rights law. That's getting into trouble. But that is our position on it, that it's a quid pro quo. If you allow -- if you ask us or accept our offer to dedicate 90 percent of the property to perpetual future conservation and then three years from now say no, you weren't able to live with your rules, it's revoked, then we invoke the right to use the property as a two single-family home development without any conservation easement on it. CHAIRMAN STRAIN: Mr. Klatzkow, did you want to comment on that before Mr. Murray does? MR. KLATZKOW: Well, that's up to the board, if the board wants to change the conditions. But that's not how it reads now. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: And I will not even relate to that part of it. But if you initiate something in perpetuity, the assumption is that it's there and it's done. A revocation makes the issue of perpetuity moot, in my opinion. But it also suggestions strongly that you might believe that if you fail in several years, it will be because human nature is what it is, so -- I know the argument you're treading on, and I'm not trying to embarrass you in any way, but -- Page 100 July 19, 2007 CHAIRMAN STRAIN: Okay, Mr. Schiffer, Mr. Kolflat. Did you want to entertain questions as you go along, or did you want to have -- MR. BROOKER: That's fine. I've got some other points. COMMISSIONER SCHIFFER: And it's on this point, Jeff. What would happen? Essentially they get it revoked, they can't have the beach club, they have a building on 10 percent of the site? MR. KLATZKOW: The way this is structured now, okay, as an inducement to get the conditional use, they're saying we'll give you 90 percent of the conservation easement in perpetuity. Now what they're saying is -- it's almost like a sword hanging over your head. As long as you permit us to use this the way we want to, we'll give you your conservation easement. That's not how this is written. We can change that to make that that way, okay, but as it's written now, we do not have an agreement between us as to what these conditions are. COMMISSIONER SCHIFFER: Well, my question is what really would happen if they did get revoked? It's three years to revoke. Who -- I mean, would that just become a single-family residence that they could remodel and that's it with the easement still in place? MR. KLATZKOW: Yes. But having said yes, he's not agreeing to the conditions to the conditional use at this point in time. COMMISSIONER SCHIFFER: Right. But-- MR. KLATZKOW: And ifhe's not going to agree to the conditions of the conditional use, we have a problem. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLAT: Yes. Jeff, you told me that perpetuity does not go on forever. MR. KLATZKOW: Yeah, there's no such thing as in perpetuity as going on forever. Because, you know, forever is a very long time and, you know, things change over time. But, you know, when we say Page 101 July 19, 2007 in perpetuity what we're saying is that's as long as we can make something be the way it is. COMMISSIONER KOLFLA T: So it's not indefinite. It's not a permanent consideration? MR. KLA TZKOW: Well, it is amongst the living. But we can't bind the unborn where -- I mean, I'm not being facetious, but there comes a point in time where people, population explodes and people say that's a nice preserve you've got there, I think I'm putting a house on it. That just happens. But the best that we can do as the living is to put something into an easement for perpetuity. And that will last a relatively long time, but nothing lasts forever. COMMISSIONER MURRAY: If! may, I think-- CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: -- the legislation, what is it, 30 years, something to that extent? MR. KLATZKOW: Plus the rule of perpetuity is-- COMMISSIONER MURRAY: No, I used to understand that perpetuity was in fact, you know, perpetuity. But down here we parse it a little bit more. But with 30 years is fairly reasonable. But to be able to pull back what it is that you're offering doesn't make it an effort in perpetuity, in my -- MR. KLA TZKOW: No, it's -- we have a conditional easement now. COMMISSIONER MURRAY: Yeah. MR. KLATZKOW: As long as this thing gets to be used the way he wants it to be used we have an easement. CHAIRMAN STRAIN: Okay, Mr. Brooker, you may continue, SIr. MR. BROOKER: I'd like Mr. Klatzkow to recite the rule against perpetuities. Page 102 July 19,2007 MR. KLATZKOW: It's 90 years now. But, you know, at this point in time, Clay, nothing lasts forever. MR. BROOKER: Because we spent a lot of time in law school over a rule against perpetuities, and no one understands what it means. But besides that, that is our position. Because the genesis of this came out of the fact that the Collier County code requires us to dedicate a 10 percent of the property to conservation easement. Conservancy would have none of that. They said in order for you -- for us to withdraw our opposition, The Conservancy said, among other things you have to place a conservation easement over everything. And the reason why they said that, over everything except for the shelter and the boardwalk and the beach, the reason why they said that is because we want to foreclose any possibility of future expansion. If you recall, our initial proposal had a possibility of future expansion. The Conservancy was adamant about that, we do not want an expansion. We don't want this to be Phase 1 of your development. We said in this proposal, fine, you've got the entire conservation easement over everything. That's how it arose. But in the event -- and now we're saying in terms of enforcement perspective, in the event through our good intentions we just can't live up to this deal or there's been persistent violations that we are no longer allowed -- this conditional use gets revoked, you're going to tell this private property owner who is giving you this today that he can't even put a single-family home over 816 square feet of his property? That is not reasonable. Mr. Pires got up and spoke a lot. Nothing has significantly changed, according to him. And I would submit to you that if you would have eliminated two-thirds of his home in North Naples, he would consider that a significant reduction. No environmental groups have appeared today to oppose this. Florida Wildlife Federation has withdrawn their opposition, Collier Audubon Society has withdrawn their opposition. Conservancy has Page 103 July 19,2007 sent in a letter. And I won't go through it today but I can provide to you evidence where they listed out their demands to us in writing and said if you withdraw these demands, we would withdraw our opposition. And we have met every single one of their demands. This is not like Windstar, Mr. Pires says. Windstar allows rentals. Windstar has over 600 units in its master association. There's no limit on the number of people Windstar can take to their property. And that includes rentals, tenants are entitled to go out there. So this is exactly like Windstar. The marketing materials. Boy, I've been burned by that once, you'd think I would have done a better job with it this time. I did my best. I asked the client, make sure there's no obsolete marketing materials out there. Clean up the website. We cleaned up Naples Bay Resort website. I didn't know there was a Renaissance Village website out there. And I didn't know that language is out there. But again, I would tell you, ifhe's accusing me oflying, I take offense to that. I'm not misrepresenting to you anything here today. What I'm telling you is what I state here is what's for the record and what will actually be as governing control, not what some piece of paper or what some web page states. And I can again assure you, like I did to the EAC, that Renaissance Village website will be revised to be consistent with this proposal. And I would invite Mr. Pires, ifhe has any other websites that he's aware of, please give me a call. Let me know so I can make sure that they are consistent. Twenty people was illusory, according to him. And I believe a comment was made by one of the planning commissioners, we can't prohibit our members from coming to the island. It's illegal. And so what we've done is we've said as tightly as we can in the operations manual, 20 people can be on the property. Now, yes, I mean, can you then try to interpret that and blow that way out of the Page 104 July 19,2007 intention of the language and say oh, yeah, we'll disburse, we'll bring out 20 more, disburse, we'll bring out 20 more until we have 300 people out there. That's not our intent. You have it on record by me saying that. What we're going to do is we're going to bring 20 people out there and we can't bring another soul out to the island, the island, unless some of those people go back. This will combine with Mr. Pires' comment with some other comments from public speakers about parties out on Keewaydin Island. One comment was there's no parties in the south end. I believe that was Mr. Pires. Another was the only home for parties are commercial uses. The Kanzler estate down at -- that's the $12 million one down in the southern end. We have physical evidence that that's not true. On March 4th, 2007 of this year -- well, that would be this year, 2007 -- there were two parties. One was an 80-person party, one was over 100-person party. Both of them were on private properties, and neither of them was on the estate to the south that they talked about that where parties occur. Well, we're not here to throw rocks. I have that evidence, but I'm not going to make it part of the record. Emergencies. That's one of the criteria of a Land Development Code in the Land Development Code for conditional use. I have spoken with both the assistant chief and the chief of the Isles of Capris Fire District. He disagrees that there's insufficient or inadequate emergency service to Keewaydin Island. Both of them disagree. That's Chief Rodriguez disagrees. They have a boat, a fire boat there at their headquarters, and he has confirmed this in e-mail, if you would like to see it. It will carry a paramedic on board at every -- every time it goes out. A medflight helicopter is dispatched every single time their fireboat is dispatched, and they're highly trained individuals. According to them, depending on the tides and the Page 105 July 19,2007 location on the property, it's a six to eight-minute response time. Enforcement: That was an issue brought up; there's just lack of sufficient enforcement. And we recognize that that's not a new issue. We dealt with it the first round. We're doing the best we can under the circumstances, we think. In addition to that condition number 14, it brings us back before the BZA. I mean, we're basically putting it on the line that in the event enforcement is lack and we are unable to police this effectively, it's revoked. In addition to that, we have been in talks with Rookery Bay about somehow increasing their enforcement presence and activity out there. We have always said we'll pay our fair share towards more enforcement authority out there. And I'm here to tell you that we will pay $20,000 annually, as long as that CU is in effect, towards two Rookery Bay or two whatever enforcement authority is deemed to be the most sufficient enforcement authority for Keewaydin Island. That $20,000 number is not arbitrary. Because in our discussions with Rookery Bay, we asked them what is the salary, including fringe benefits, or benefits, of a full-time uniformed ranger out there on Keewaydin Island, exclusively for Keewaydin Island. The number came back just under $40,000. Rookery Bay asked us to contribute 50 percent of that. We own less than one percent of the beach shoreline. We agreed to pay more than 50 percent, the $20,000 per year. I invite you to ask any of the other private property owners if they've offered that kind of assistance or cooperation, or even the county in that regard, if they're willing to step up and enforce things the way they should be enforced out on Keewaydin Island. In conclusion, we believe that this is based upon a comparative analysis with what can go on out there today, whether it's a two single-family home residence or no approvals whatsoever that allows us to bring a landing craft up to the beach and just dump a lot of people, that's what is in existence today. But we believe in a Page 106 July 19, 2007 comparative analysis, this is far better and -- far better in terms of an environmental impact and in terms of the stewardship of Keewaydin Island. And I would remind you again, the Growth Management Plan dictates the result in this case. Because if this is denied, the property is put to residential use. We're giving you an opportunity to put it to recreational facility use, which is number two on the priority list for coastal barrier islands, according to the CCME. Residential development is number nine. Weare giving you the opportunity to put into place to implement the CCME in that respect. Recreation is deemed the highest and best land use out there. And that's what we are promoting and proposing to you, and we would ask for your support in that regard. CHAIRMAN STRAIN: Are there any final questions? Mr. Tuff, then Mr. Schiffer. COMMISSIONER TUFF: Yeah, the one that I can't get past, it sounded like it was good and I guess I always think what would I want for my neighbor, which would I prefer, and I was preferring to what you were doing until I got to the 20 people and we create a bathroom magnet. And then I think what would I rather have? I'd rather have a party once in a while, a big party once in a while than have how many people would probably be drawn every day. And either you couldn't answer that or I missed it, but that's my whole -- that's everything to me on this issue. MR. BROOKER: Well, I guess in response are we don't anticipate -- the 20 is a maximum. We don't anticipate 20 being there every day. And in fact, when -- we anticipate many days -- I don't know if you've been out there. I've been on the property a couple of times to put up that public hearing sign that you may have seen out on there and donated some serious blood to the mosquitoes. It is -- it's rough. And so there are going to be weather days, mosquito-infested Page 107 July 19,2007 days that sort of thing where we don't anticipate anyone out there. And so to just say because you're concerned that there's going to be 20 people day in, day out out there, we don't believe that's reality. COMMISSIONER TUFF: I'm not concerned about 20 people a day, I'm -- the magnet bathroom. I mean, I see 100 people there on a good day and lots of good days. Because they can all stop there and transfer, well, I'm leaving, I'm coming back, that's the part I can't get past. MR. BROOKER: That won't be permitted, because the only people who will be permitted to use the shelter and the restrooms are the people we transport. So people who come up by boat, even if they're club members, are not going to be permitted on our private property . CHAIRMAN STRAIN: Mr. Schiffer, before you ask your question, we need to give a break to the two girls. We're certainly not going to take lunch because we're going to be done with this hearing today. So do you want to ask yours real quick or -- COMMISSIONER SCHIFFER: The only thing real quick is essentially the same question. And I really just want to hear it for sure, because it even got snickers. The -- you know, number one in your general consideration, so that means anybody reading your manual with attention deficit disorder is going to get to this one. Number one says that you can't arrive at this facility in anything other than your boat. That means you can't arrive by private vessel, personal watercraft. Are you going to swear that you're going to honor that thing so if this armada is off the coast and they all want to use the bathroom and they all have membership cards, they're not going to be allowed to use those restroom facilities? MR. BROOKER: Yes. COMMISSIONER SCHIFFER: Because you're going to have a water use problem anyway. I mean, to do that you'd have a tanker Page 108 July 19,2007 truck out there with water pumping into that septic system. Because each one's going to be a gallon and a half flushing. But you swear that that's never going to happen. MR. BROOKER: Yes. COMMISSIONER SCHIFFER: I'm done. CHAIRMAN STRAIN: He's under oath, by the way. With that we'll take a IS-minute break and be back here at 12:25. (Recess.) CHAIRMAN STRAIN: Thank you, Kay. Okay, we're back from break. We had left off with Mr. Schiffer. Did you finish all your questions? COMMISSIONER SCHIFFER: Yes. CHAIRMAN STRAIN: Okay. Clay, you had wanted a minute to restate something? MR. BROOKER: Yeah, one last comment. And thank you. With regard to the conservation easement remaining on the property even if it's revoked, we withdraw that opposition, and we will live with the condition as stated in the staff report. CHAIRMAN STRAIN: Okay, thank you, sir. COMMISSIONER KOLFLAT: Mr. Chairman? CHAIRMAN STRAIN: Yes, sir? COMMISSIONER KOLFLA T: I had a question. CHAIRMAN STRAIN: Go right ahead, Mr. Kolflat. COMMISSIONER KOLFLA T: You talked about a three-year period there for the conditional use before it could possibly come before the Board of County Commissioners. What about some succeeding time limits as far as coming back for another time, or after that three-year period then it's all free? MR. BROOKER: There was comments made that well, build-out will take more than three years, so you're really not going to see the full impact. So we're agreeable to saying that there's a three-year check and a Page 109 July 19, 2007 six-year check. So that will allow after a time a significant period of time or having two possible checks to come back and two different test periods, if you will, to address what we thought was a good point is, well, maybe after three years we're not really significantly built out, after six, we're farther along down the road and that would be a better test period. So the same -- what we're agreeable to do is the same circumstances and the same rules that would apply at the three-year time frame would apply at a six-year time frame. COMMISSIONER KOLFLA T: And you would agree that could be part of the condition? MR. BROOKER: Yes, sir. COMMISSIONER KOLFLAT: Thank you. CHAIRMAN STRAIN: Okay, thank you. Go ahead, Mr. Murray. COMMISSIONER MURRAY: A follow-up. Just so I have it clear in my mind, Mr. Brooker, the penalties portion of it, which is an agreement between Antaramian or the company and Rookery Bay, after the three-year or six-year in this case, as you have suggested, after that time if they find reasons to penalize, that would occur and there would be no capacity or ability on the part of the county to withdraw the conditional use because of this? MR. BROOKER: Well, the penalty process would remain the same. So the way it would work is we always had the penalty process with DEP. We always had code enforcement. Whether it's one month, three years, 10 years, whatever it is. And then on top of that we are saying that just to make sure that this is working as we have represented it in our good faith to work, at a three-year time period we take a look, if there's been any violations whatsoever, then we come back before the BCC, and then that condition language would apply. They can either revise the Page 110 July 19, 2007 conditions or revoke. And then we'll agree to doubling that and say we'll do another three-year time period. So we're being able to perhaps test if there are phases or there's more build-out on the upland project another three year-time period, and that time period ifthere's any violations whatsoever, we're hauled back again before the BZA. They can tweak again, if we appear before them at the three-year time frame, or revoke at that point in time. COMMISSIONER MURRAY: Mr. Klatzkow, in the event that they were to come back at the six-year period and they'd had some penalty issues but it hadn't risen yet to the level of revocation, could the BZA at that time, based on these agreements and the ordinance or whatever is going to be created, the conditional use document, could the BZA modifY it to require them to come back again in another three years or another six years? MR. KLATZKOW: I'd ask Mr. Moss if we would put it on the visualizer so we can all see it. This has changed over the course of the debate. And I don't really know what it says at this point in time as far as that goes. So rather than give you an answer, I'd like to see what it says. MR. SCHMITT: John-David, I think I have the final version here. It's called visualizer dyslexia here, I guess. MR. MOSS: Yeah, the text that's been added is underlined. It's in the last sentence there. MR. KLATZKOW: This version is just the three-year and that's it. I understand they're including a sixth year? MR. BROOKER: We're simply offering that as a possibility. If there -- because the public comment mentioned well, that's not really an effective test because you're not going to be built out by then. So what we're saying is we're willing to not only the three-year but a six-year check. It's not to alter that language, it's to add to it and make Page 111 July 19,2007 it more burdensome on them. MR. KLA TZKOW: No, I understand. So you're saying there will be like a three-year anniversary and a six-year where the BZA has the ability to relook at the CU. But after that, Commissioner, that would be it. COMMISSIONER MURRAY: Yeah, that's what I suspected. So in other words, penalties would still exist as between you and an agreement with Rookery Bay. However, the county will have lost its ability to revoke and you could have continuous penalties after that and they'd have no authority; is that correct? Is that the way I interpret it? MR. KLATZKOW: That is correct. COMMISSIONER MURRAY: Okay. MR. BROOKER: According to the language of the condition. And that is in fact true of all conditional uses. Once they're approved, in general, as we discussed, there is no mechanism whatsoever to revoke it. And what we're adding to -- we're adding that possibility. COMMISSIONER MURRAY: No, I want to thank you, Mr. Brooker, for your qualification in that offer. And I recognize that that is true, generally. In this instance, though, we're talking about what everybody recognizes, including the developer, that this is sensitive land and probably should bear a little -- a lot more evaluation. Thank you. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yes, but the simple fact of the matter was initially in 14 we had that right. It said if no such violations have occurred, then this conditional use will automatically renew for a five-year term every five years thereafter. Should any violations occur during these five-year terms, the automatic renewal will automatically terminate and the owner will need to petition the Board of Zoning Appeals. So initially we had a five-year renewal period forever. And that's Page 112 July 19, 2007 been taken away, and I don't know why, and I'd like to know the justification for it. MR. MOSS: Well, as Joe stated earlier, we felt it was too onerous. And so after discussions with the applicant we decided to change it to just a three-year review period. But one thing I wanted to point out regarding what Mr. Murray was saying, it does say in here that if the hearing before the BZA is triggered, they'll have the right to review the violations and determine what revision to the conditions may be warranted. So it seems like that would give us -- COMMISSIONER MURRAY: Well, that was the question I had MR. MOSS: -- the opportunity to revise -- COMMISSIONER MURRAY: -- and Mr. Klatzkow indicated no. MR. MOSS: No, Joe? CHAIRMAN STRAIN: You guys are talking over one another. You've got to kind of slow it down. COMMISSIONER MURRAY: Sorry. MR. KLATZKOW: They could be Boy Scouts for six years and the seventh year, you know, girls go wild on the beach and there's nothing we can do about it. It's -- the way it's structured, it's we look at it at three years and we can look at it at six years and that's the end of it. MR. SCHMITT: Jeff, just for the correction, the way I read this is it's still ifthere's a violation, we could still remand that they come back to the BZA; is that not correct? MR. KLATZKOW: The way I read it, we've got three years and now a sixth year. But after that, I think we're done. COMMISSIONER MURRAY: That was my interpretation. CHAIRMAN STRAIN: Well, does anybody have a suggestion as to -- Page 113 July 19, 2007 COMMISSIONER MURRAY: Yes. Now that we've qualified it, I would recommend that we reinstitute that paragraph as it was read by Commissioner Caron that was previously in there -- COMMISSIONER ADELSTEIN: That's right. COMMISSIONER MURRAY: -- if that's acceptable. COMMISSIONER KOLFLAT: Mr. Chairman? CHAIRMAN STRAIN: Go ahead, Mr. Kolflat. COMMISSIONER KOLFLAT: Yeah, but what that gives, that gives the opportunity that any infractions that were prevalent down there could continue for five years rather than be stopped after three years. So if you're talking about destruction to the environment or to the site, that gives a longer period of time for them to ruin it. COMMISSIONER MURRAY: In may, and just not an argument with you, sir, but right now the issue, it would die completely. Now, if you wanted to modifY it back to three years, that would be I guess the subject of another discussion. But I would be happy enough, if they've proven themselves for the first three years and then the second three years and they've already gone through the gauntlet, so to speak, I would be I think reasonably content that at least every five years they get the opportunity, as opposed to no years. That was the reason for my suggestion. CHAIRMAN STRAIN: Clay, do you have a suggestion? MR. BROOKER: Every three years forever. COMMISSIONER KOLFLAT: In perpetuity. MR. BROOKER: In perpetuity, yes. COMMISSIONER VIGLIOTTI: Bingo. Well, that resolves everybody's problem. COMMISSIONER SCHIFFER: And then some. CHAIRMAN STRAIN: Okay, thank you. Any other comments, questions? Mr. Kolflat, you wanted to have a public comment. And that's not the same as a motion. Did you want it -- Page 114 July 19,2007 COMMISSIONER KOLFLA T: No, I already have the question answered. CHAIRMAN STRAIN: -- during the hearing or after the hearing closes? COMMISSIONER KOLFLA T: I've already had the answer to my question. CHAIRMAN STRAIN: Okay. Then there's no other speakers, Kay? MS. DESELEM: No, sir. CHAIRMAN STRAIN: Okay. And we've heard -- Mr. Moss, you got anything to say? MR. MOSS: I just wanted to talk about number 14 again. Are we going to clarifY persistent or significant violations, or have you changed your mind on that? CHAIRMAN STRAIN: No, I think the applicant testified that that was purposely ambiguous to help both sides out. MR. MOSS: Then you're satisfied. CHAIRMAN STRAIN: But I thought we were just talking now about going back to the other paragraph. And that language doesn't exist in the other paragraph, does it? With the exception of three years instead of five years. MR. SCHMITT: I'd still prefer that some of that language stay in, because it does give the BZA the authority to revoke. Otherwise it becomes a code case. And what was stated on the record by the representative of Rookery Bay, certainly they're going to police. If they feel that any form of the agreement has been violated, they're certainly going to inform in the county. Then we would take their action and proceed. Which seems to be far more restrictive than what is currently in place for any property there right now. Normally they do let us know if there are violations. But I still prefer to have this language remain involving the revocation of the conditional use. Page 115 July 19,2007 CHAIRMAN STRAIN: Would you put the last paragraph that was discussed -- MR. SCHMITT: I think what we're going to have to do is -- COMMISSIONER ADELSTEIN: Move it over. That's it. MR. SCHMITT: I think what we're going to have to do is just so note in there, as Clay mentioned, that somehow put language there that it be three years and every third year thereafter or something to that effect. That would then identifY that it's a three-year requirement. To at least for nothing more than to bring a report back to the board to identifY if there are any infractions, and then the conditional use be continued. CHAIRMAN STRAIN: Why wouldn't you take the language that you struck out from the prior number 14, put it back in this one as unstruck, and then leave the language you're adding as well, but change the term from five to three? COMMISSIONER MURRAY: Yeah. COMMISSIONER ADELSTEIN: Yes, yes. COMMISSIONER VIGLIOTTI: Yeah, we can do that. MR. MOSS: Or just add the word every to this one. Every three years, instead of saying just three years. MR. SCHMITT: But I still want this-- MR. MOSS: Right. He's saying to leave that in there. Okay, so keep this one. Just change five years to three years. CHAIRMAN STRAIN: Well, I think what we said was take the struck-out language from the prior document. MR. MOSS: That's right. That's what I mean. CHAIRMAN STRAIN: That's correct. MR. MOSS: Replace the language that was stricken and change it from five years to three years. CHAIRMAN STRAIN: That's what the suggestion is to get past paragraph 14. Okay, with that, we will-- well, we'll wait for a minute here. Page 116 July 19, 2007 MR. BROOKER: The only issue we'd have with that stricken language is an automatic termination clause in there. That's what-- when we first saw this condition, we thought that was unnecessarily harsh. And so instead of saying at the end of a period of time, whether it's three years or five years or whatever it may be, that you automatically terminate, it's that ifthere have been any violations a hearing is triggered and we come back and we go through it all. CHAIRMAN STRAIN: Well, instead of automatically terminate, then it would trigger a hearing? MR. BROOKER: Something along those lines. MR. SCHMITT: And again, I've got to turn to the county attorney. I believe -- I don't think we could automatically terminate without coming to the board and asking the board -- the BZA to terminate. Yeah. We're doing this on the fly here. MR. KLATZKOW: The way this was originally structured, and I structured it, I put a dead sentence to the conditional use. MR. SCHMITT: Yeah. MR. KLATZKOW: So I gave it a term, it died. If they do what they said they were going to do, they got to live again another five years and so on. So it was an automatic dead sentence. That's how was it. But now we've got a different process saying now instead of doing that, because the applicant thought that was too harsh, what we're saying is every three years -- every three-year time period, if you've got violations, we're going to take you to the BZA, the BZA will look at it. It's really one or the other. And whatever your preference is. CHAIRMAN STRAIN: Well, I think we're looking at every three years it would have to be -- first of all, it comes up for renewal every three years. And I think the issue, the language in the other document is the one we want to use. The conditional use will automatically renew for a five-year term Page 117 July 19, 2007 every five-year thereafter. It should be three-year term. For every three years thereafter. And if any such violations occur during these three-year terms, then it will be taken to the BZA for renewal. I think that's what -- I believe we're going. Is that the way the language might want to be read by -- COMMISSIONER MURRAY: That's fair. CHAIRMAN STRAIN: -- the commission? Mr. Vigliotti, you're looking like you don't agree. COMMISSIONER VIGLIOTTI: Could we be starting a precedence here that we're going to be giving conditional uses with termination dates? MR. KLA TZKOW: I don't think that's a bad precedent. CHAIRMAN STRAIN: It's probably a good one. You understand the intent of -- MR. KLATZKOW: I'm going to write it right now. CHAIRMAN STRAIN: If this goes forward, do you understand what we're trying to say? MR. KLATZKOW: If you give me 30 seconds, I'll have it rewritten and we'll put it back on ELMO. CHAIRMAN STRAIN: Okay, we'll do that. David, you get to entertain us for 30 seconds. COMMISSIONER SCHIFFER: What's an ELMO? MS. DESELEM: The visualizer is ELMO. COMMISSIONER SCHIFFER: We name our equipment, or-- MS. DESELEM: That's the name of it. Not its name, that's the name of the -- CHAIRMAN STRAIN: You know, I could do something real bold here and ask Tony Pires to come up and fill the time in for us, but I know what that will mean. COMMISSIONER VIGLIOTTI: Oh, no. COMMISSIONER ADELSTEIN: Why don't we just make a motion and figure it out when it comes down. Page 118 July 19, 2007 CHAIRMAN STRAIN: We can take a --let's just go off record for a minute or so and take a quick break, and we'll just resume in a minute or two. Thank you. (Recess.) CHAIRMAN STRAIN: Thank you, Kay. If everybody will come back it to their seats, we'll -- oh, my goodness, your writing is as bad as mine, Jeff. MR. KLATZKOW: It reads -- and I could have been a pharmacist -- the conditional use -- people would be dying all over the place. The conditional use shall be required to go before the BZA for review every three years from the issuance of the CO, unless during any such three-year term there have been -- and then it goes on down after that. CHAIRMAN STRAIN: Good, I like that. COMMISSIONER VIGLIOTTI: I like it. CHAIRMAN STRAIN: That's good. Thank you for doing that on the fly. Appreciate it. Is there any objections from the applicant to the language? MR. BROOKER: No objections. CHAIRMAN STRAIN: Okay. We're past this issue. Now, there are no other witnesses, so hopefully there are no other questions at this point. We will close the public hearing and entertain a motion. Mr. Kolflat? COMMISSIONER KOLFLA T: I move that we recommend to the Board of County Commissioners approval of this petition with the stipulated conditions as stated; as well that it's site applicable -- as applies to this site. CHAIRMAN STRAIN: Did you say approval? COMMISSIONER KOLFLA T: Yes. CHAIRMAN STRAIN: Approval of this application with what? I'm sorry. If you could say it again. Page 119 July 19,2007 COMMISSIONER KOLFLA T: In accordance with its conditions and stipulations. And also that it's site permanent (sic) for this particular site. CHAIRMAN STRAIN: Site permanent? COMMISSIONER KOLFLA T: For this site. CHAIRMAN STRAIN: Site specific I think you mean, for this site. Site specific for this site? COMMISSIONER KOLFLA T: Yes. CHAIRMAN STRAIN: Okay. Motion's been made by Mr. Kolflat. Seconded by -- COMMISSIONER SCHIFFER: Second. CHAIRMAN STRAIN: -- Commissioner Schiffer. Okay, so now we'll go into discussion. Comments from the commission? Mr. Midney? COMMISSIONER MIDNEY: Yeah, I haven't said anything, but I have been listening very carefully. And I found Mr. Brooker's presentation much more persuasive this time than the first time. However, I feel as though I need to go along with our environmental advisory group recommendation. And from hearing the public speakers, I'm convinced that there would be significant human impact and possibly a precedent. So I intend to vote against the motion. CHAIRMAN STRAIN: Okay. Ms. Caron? COMMISSIONER CARON: Yes, I will also be voting against the motion. I believe there are still ingress and egress issues. I believe it will set a precedent in the neighborhood. I believe that the intensity of the use is incompatible with well over potential 750 plus users. I believe that their boardwalk, that construction seaward of the coastal construction line is prohibited, except for public access. And there is no public access, it's club members only. I believe the effect on the neighboring properties is adverse because the county is being asked to rely on provisions of a private thus unenforceable agreement between the state and the owners. And Page 120 July 19, 2007 I don't believe that the state has proven themselves to be a -- what's the term I can use? I don't think they've been reliable in upholding their own rules and regulations. We'll be discussing one such incident later on today. And I'll cite just one more just to throw it out there. Recently the county has submitted to the State FDOT warrants for a traffic light up in North Naples, and the state's response was not -- was that the light wasn't warranted because red lights cause traffic accidents. And this is the kind of thinking that we're going to put up with. I don't think relying on the state to uphold these agreements makes any sense whatsoever. And so for those and probably other reasons, I'll be voting against it. CHAIRMAN STRAIN: Let me finish up with this side of the table, then we'll move to that side. Mr. Schiffer? COMMISSIONER SCHIFFER: I mean, are we clear -- there's one condition that we didn't discuss that in their manualI'd like them to add what to do if the alarm's on for the septic tank, okay? We don't need to make that a formal condition, just do it in the manual, okay? CHAIRMAN STRAIN: So in the manual part of your -- COMMISSIONER SCHIFFER: Well, what was missing is that the staff doesn't know what to do when there's a blinking red light over the septic tank, that they have a procedure in your manual what to do. CHAIRMAN STRAIN: Mr. Kolflat, you had your hand up. Did you have more to comment on? COMMISSIONER KOLFLAT: Well, I probably should have made a comment for the basis for my motion. CHAIRMAN STRAIN: Pull the microphone a little closer to you, SIr. COMMISSIONER KOLFLA T: I went back and looked at our record of our meeting a year ago, and I went through every item that each of us and all had been brought up by the public. And I think this Page 121 July 19, 2007 petition has addressed every one of those and attempted to ameliorate the bad effects that were represented at that time. CHAIRMAN STRAIN: Okay, now we'll start with this side. Mr. Adelstein? COMMISSIONER ADELSTEIN: I'm sorry, I can't go forward with it either. I know the gentleman who has done it, I've watched him operate for many years, too, and as did the speaker. And as far as I'm concerned, I could not vote for this. CHAIRMAN STRAIN: Any other comments from this side of the table? Mr. Murray, you're never lacking in comments, so go right ahead. COMMISSIONER MURRAY: Gee, I'm nonplused now. I too agree that the presentation made by Mr. Brooker and the efforts made to really give a lot of concessions -- perhaps they were prepared for that, I doubt it, because we've asked some very strong conceSSIons. Nevertheless, the question will remain and does remain in the minds of many people, including mine, what are we doing here to Keewaydin Island. So you'll have to listen for my vote. CHAIRMAN STRAIN: Okay. Either of you guys got anything to say? COMMISSIONER VIGLIOTTI: I will be voting for it. I think that they've done everything humanly possible to answer every one of our concerns and all the board's concerns that came before you. We're getting 90 percent of the property saved, environmental easement. It's a conditional every three years you come back. So it's only a temporary give you anyway. My concern is there'll be two large private houses and they'll invite as many guests as they want. We'll have absolutely no control. And I think this is a well controlled project. Thank you. CHAIRMAN STRAIN: Mr. Tuff, did you want to comment? Page 122 July 19,2007 You're more than welcome to. COMMISSIONER TUFF: Well, Ijust think they did a terrific job. And the thing I can't get past is I think we've just moved the party over from the south end over to here. And I don't think there's a way to combat that. But they will be following all the rules but we'd still move the party, and I'll have to vote no on it. CHAIRMAN STRAIN: And my thoughts on it will actually pertain to the finding of fact of the conditional use petition. And my purposes for not voting in favor of the motion would be that pursuant to that petition, requirements, the findings of fact section number one says that Section 2.04.03 table two of the Land Development Code authorizes a conditional use permit. Right off the get-go I am not sure that that applies to the commercial dock that is now going to have to be there because it's a change in use for the uplands. So that hasn't been clarified to a satisfaction that I feel comfortable with. Number, two, the granting of a conditional use would adversely affect the public interest and will not adversely affect other properties or uses in the same district or neighborhood because of A, consistency with the Land Development Code and Growth Management Plan. I still have a problem with the density. The GMP Section 10.3.8, section 10.6.1, and the LDC Section 3.03.07(A) clearly refer to a density of one per five acres. And I don't believe this application meets that density. Number B, the ingress and egress to the property of proposed structures thereon. And the whole idea of the dock right now is in question. The DEP permit that's been issued, ifthere's a change in use, actually it's a violation of the permits, so the dock has to be repermitted. We've heard testimony today that the dock certainly will have to be repermitted. So until that's done, I'm not sure there's proper and adequate ingress and egress to this property. Number C, affects neighboring properties in relation to noise, Page 123 July 19,2007 glare and economic or odor effects. I don't have any comment on that and I can't tell by the presentation today ifthere's any noise, glare or economic issues with it. Some people may say it devalued their land, others may say because of the potential there may be more value in it. And as far as the environment goes, it certainly is a negative. Number 0, compatibility with adjacent properties and other property in the district. I think by the lack of the studies done on the intensity of the property, the uses that the compatibility has not been proven to a satisfaction that will secure my vote. So for those reasons, I will be voting no on the motion. And I think everybody's had their say. So with that, I'll call for the vote, but I ask you to do so by signifY by saying aye and then raising your hand. If you're in favor of the vote for approval, please signifY by saying aye and raising your hand. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER KOLFLA T: Aye. CHAIRMAN STRAIN: Three in favor. All those opposed, same sign. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. Six opposed. Motion for approval is not successful. It fails at 6-3. Now, is there another motion? COMMISSIONER CARON: Yes. CHAIRMAN STRAIN: Ms. Caron? Oh, Mr. Midney, you had your hand up first. Go ahead, and then -- COMMISSIONER MIDNEY: I'll make a motion for denial of-- recommendation of denial for Conditional Use AR -10925. Page 124 July 19,2007 COMMISSIONER ADELSTEIN: I'll second the motion. CHAIRMAN STRAIN: Motion's been made and seconded. Discussion? (No response.) CHAIRMAN STRAIN: My reasons for supporting this particular motion will be the same as those I just stated for the reason to deny, the motion to approve. COMMISSIONER CARON: Same here. CHAIRMAN STRAIN: Ms. Caron is the same reasons. Mr. Adelstein, same reasons? COMMISSIONER ADELSTEIN: Yes. COMMISSIONER MURRAY: Yes, but I'm confused, Mr. Chairman. I thought if we had a motion that failed for approval, there was no further motion required. COMMISSIONER ADELSTEIN: Neither did I. COMMISSIONER SCHIFFER: And Mark, question. Because this is a conditional use, we fill this out. So essentially those of us who voted yes would fill this out yes. Those of us who voted no would fill this out no, and the nos would carry. CHAIRMAN STRAIN: I don't think you tally this to determine how we vote. I think you actually take the vote that we've taken place is how we vote. Mr. Klatzkow, we had a motion to approve and it failed. Do we need to take another vote? MR. KLATZKOW: You don't need to, but you can. CHAIRMAN STRAIN: Okay. Well, there is a motion on the floor. Ifwe don't want to act on it, then the motion maker and the second can withdraw their motion. COMMISSIONER MIDNEY: I'll withdraw it. CHAIRMAN STRAIN: The second then I assume is withdrawn? COMMISSIONER ADELSTEIN: Yes. CHAIRMAN STRAIN: Okay. Well then, the motion to Page 125 July 19,2007 recommend approval failed. The project's going forward with a negative recommendation then. I guess it will stay at that. Okay, thank you all. That will end that particular case. We have findings of fact. Please fill them out. They're attached to your packet. We still have an agenda to finish up, so I've got to ask everybody not to leave. At least everybody not involved with this. (Recess.) CHAIRMAN STRAIN: Okay, sorry for the delay, we had to get some paperwork completed. Item #9 OLD BUSINESS Any old business of this commission? (No response.) Item #10 NEW BUSINESS CHAIRMAN STRAIN: Okay, new business. Michelle, you had a discussion you wanted to bring to us regarding the school board? MS. MOSCA: Good afternoon, Mr. Chairman, Commissioners. For the record my name is Michelle Mosca with the comprehensive planning staff. I'm here today to request the commission's consideration to allow the school district staff or their consultant to provide an overview of school concurrency at a future planning commission date. And that's simply my request. Staff would suggest either August 16th or the first meeting of Page 126 July 19,2007 September. And this would be prior to the anticipated school concurrency transmittal hearings. CHAIRMAN STRAIN: I think that would be a very good idea. Does anybody here object to that? (No response.) CHAIRMAN STRAIN: And I would suggest that you get with Ray Bellows and find out which is the least cluttered schedule and set it up for that appropriate meeting, if that's works for the school system. MR. MOSS: Thank you. CHAIRMAN STRAIN: Thank you, Michelle. Ms. Caron, you had an issue you wanted to bring up? COMMISSIONER CARON: Yes. Many of you may have read in the paper this past week that an active bald eagle nest was cut down in the Pine Ridge area. Well, come to find out it was done without any federal or state permits, which we require here in the county. But what happens is we say that we want their permits, but they're under no obligation on the converse to get us anything. So a couple of things have happened. I asked the county attorney's office if we could follow in the steps of the EAC who determined that we need some language here to protect us in the interim here from things like this happening again. And Jeff has the EAC meeting, if you all want to listen to their discussion on it. But I think it's pretty simple. And I have language here which I will pass out to everybody that I think will cover us for now. What my goal is here potentially is to get it into the current LDC cycle. Now, there's been some thought that that's somehow skirting the process. And quite frankly, I would not be in favor of skirting the process. I've worked long and hard for years to protect the process around here. So that's not my goal. So if it can't get into this LDC cycle and should just go to an Page 127 July 19,2007 ordinance stage, whatever will work is what I'm looking for. Let me just read to you what I think should go under our LDC 3.05.04, the vegetation removal and protection standards as number I. Vegetation, whether living or dead, utilized by listed or protected species or nesting or roosting requires county approval for removal through receipt of all applicable agency permits or letter of technical assistance prior to the removal activity -- and that's the key phrase that we don't have right now -- as referenced in 3.04.0. This provision is applicable on all lands subject to state and federal requirements for species protection and permits for impacts to nest and roost trees. It's two lines. I think it could be there without offending the process. I'm open for discussion. CHAIRMAN STRAIN: Okay. Well, I think-- COMMISSIONER CARON: That aspect. CHAIRMAN STRAIN: I think as far as entering into the process, the one that I'm assuming that you're trying to talk about is the one we've already received and have scheduled for next Tuesday night? COMMISSIONER CARON: Yeah. And the county attorney has opined that that is perfectly fine from their perspective. CHAIRMAN STRAIN: So a 10-day notice for the meeting for next Tuesday night can be provided. MR. KLA TZKOW: You wouldn't be hearing it at the next meeting, you'd be hearing it at a later meeting. CHAIRMAN STRAIN: Right. MR. KLATZKOW: You have multiple meetings during this process. COMMISSIONER CARON: Right. So it would be an August meeting? MR. KLATZKOW: Yes. Page 128 July 19,2007 COMMISSIONER CARON: The August meeting. CHAIRMAN STRAIN: Mr. Schmitt? MR. SCHMITT: And I've not talked to Jeff about this. Just briefly he alerted me it was going to be brought up. Technically yes, it could be included in this cycle. My problem is we're six months into this cycle. We've already been through the other required board hearings or advisory committee hearings. We've been through the EAC. Normally these type of things would go through an EAC sub-committee, and then they go to the EAC, they go to the DSAC, and before you all can do a final vote, I would have to bring this back to those other bodies. I would have to bring it to the DSAC, as required by our processes as directed by the board, and it has to go to the EAC, so -- COMMISSIONER CARON: The EAC has already made a recommendation. MR. SCHMITT: They may have made a recommendation for an ordinance to be developed, but this ordinance has to be -- as written has to go back for their approval. And just let me say this: We -- this has probably been one of the most disciplined LDC cycles since I've been here. Because I pretty much said no to absolutely no insertion of LDC amendments during the cycle. You recall, this has happened to you in the past where things want to get thrown in. My only question is, and I understand the justification for it, but let me make sure for the record you all understand. The state was required to issue a permit and they did not. They screwed up. I mean, literally that's what happened. We've been through this argument -- or shall I say we've been through this discussion with the Board of County Commissioners, creating ordinances or legislation in Collier County that exceeds the requirements of the state and federal agencies. And we've had this long-standing I'll call it dispute, but this -- where there's conflicting Page 129 July 19,2007 guidance in our GMP in regards to deferring to state and federal agencies. It's been briefed thoroughly to the board. The board has been very clear in its guidance to staff. All I can do is with an action like this, you certainly have every authority -- and let me go back to that. They've been very clear on this guidance with regards to deferring to state and federal agencies, and also the inconsistency in the GMP, and they purposely left it the way it is. It gives the board the little bit of leeway. But something like this, I only caution this body, we're reacting and I don't see any real urgency other than perception there's an urgency to get it into this cycle. We could certainly put this together and have it in the queue for the next cycle, which this board sees -- I don't have the dates published, but we're coming back with most -- I wouldn't say most, but a good quantity of the EAR-based amendments dealing with environmental issues that were part of our EAR-based GMP amendments. This would be part of that whole environmental package. But you certainly have the statutory authority to direct staff to include this in this LDC cycle, and I would have to take your guidance accordingly and deal with that. So you do have that authority and I will follow your guidance. CHAIRMAN STRAIN: Ms. Caron, do you want to follow up, and then Mr. Murray and then Mr. Schiffer. COMMISSIONER CARON: I just want to say that I think this actually helps protect the county and the citizens of the county. Because we would have in hand what the state screwed up. It would have been in hand because we wouldn't have taken down the tree unless we had that. They couldn't just ignore their own rules and guidelines. They couldn't flaunt the law that way . We would be saying these are your rules, we're willing to follow your rules, just give us the permits you demand. MR. SCHMITT: But it does do, I believe, what the board didn't Page 130 July 19,2007 want staff to create, are those laws that become more restrictive than what state and federal statutes already exist. So I just bring that to your attention. COMMISSIONER CARON: Again, I don't think it is being more restrictive. The state -- it's only following what the state requires itself to do. MR. SCHMITT: But it -- let's go back to some of the other existing. Even the existing issue where one of the applicants had a take permit or a permit, that's part of our review process anyway, that you need your state and federal permits. In this case here, certainly the state said no, you don't need a permit and gave -- the landowner, the property owner said go ahead and cut it down. We objected to that, to the state agency, and by the time the state agency realized it -- you know, this was a lower level state employee who basically said yeah, it's a dead tree, it's going to blow down anyway. Irrelevant. You still need the permit. And I believe, certainly anybody can take action right now against the state, if they wanted, for failure to follow its own rules. I don't know. But again, I'm concerned about -- and we could debate that. Probably that will be debated at the LDC hearing, how do I enforce this. A whole different issue. CHAIRMAN STRAIN: I think the action Donna's looking for is whether there's support from this board to get this into this cycle or to see it in another cycle. And let's just get that on the table and get moving with it. Mr. Murray, you had a comment, Mr. Schiffer, then Mr. Tuff. COMMISSIONER MURRAY: I actually have a question. And I think this is very well intended, and I appreciate it. Just in my ignorance, do eagles ever roost on poles that are other than -- in other words, like a utility pole or something of that nature? Page 131 July 19,2007 COMMISSIONER CARON: No, that's ospreys. MR. SCHMITT: That's ospreys. COMMISSIONER MURRAY: Okay. That would be the basis for my question. I wouldn't know that, so that's why I asked it. Thank you. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Jeff, based on the Land Development Code, does -- can't we -- only the planning commission and the commission have to review it based on the Land Development Code. Joe does have a good procedure for staff, deadlines and stuff, but that's not -- that's his administrative procedure, right? MR. KLATZKOW: Yeah, that's correct. COMMISSIONER SCHIFFER: So essentially we do have the opportunity to get it in -- CHAIRMAN STRAIN: Yeah, but why would you want to sidetrack the other agencies, especially one like DSAC, who could potentially put a challenge up, because it may affect their developer or somebody else who has a property with a dead tree on it. Then you may have a bigger problem by not going through the full process. So I'm just wondering if that's the right thing to do to do it right. COMMISSIONER SCHIFFER: It's an administrative process, it's not the Land Development Code. The other side -- Mr. Tuff, you had a comment? COMMISSIONER TUFF: I just thought we should follow the regular procedure to make things happen. It's just a much safer, better way. CHAIRMAN STRAIN: The other thing is if the Board of County Commissioners has already weighed in on this in some format, is there some way that if we had a little more time it could be brought back to them for requestioning to make sure that we're not asking staff to do something that they simply are going to turn down when it gets there? Page 132 July 19, 2007 MR. SCHMITT: I would -- this body would have to either one of two things: Direct me to bring it up during discussion or pass it on to one of your commissioners to bring it up during discussion. Again, I can include this in this cycle. I just have to -- I would prefer, because there is -- especially during the board meeting, at least in the past, they've always looked for those other advisory bodies and their comments. And I could not -- the DSAC met yesterday. The earliest I could get this is sometime in August to the DSAC. I'd have to also -- the EAC only meets once a month. You have meetings -- yeah, you go through August. I mean, it can be done. I certainly -- I would take it back anyway. I'd try and get those other bodies to vote on it. Or some way at least opine, make -- put their position on it before I send it to the board. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah, as I stated to begin with, I don't have any problem going through the process. As you, Mr. Schmitt, ought to know very well, I have worked tirelessly to make sure that the process is followed. So I'm not looking to skirt anything. I don't see this as new. I just see this as language that corrects what really was an oversight. It's not new. It's not going against what the BCC has stated that they want. It's not going against their intent at all. It says exactly what they've told us: We should have the permits and/or letters of assistance from the state and the feds. And right now they don't have to give them to us. This was an individual homeowner, and there was no -- your staff didn't even know that the tree had come down until after it came down. MR. SCHMITT: That's correct. While-- COMMISSIONER CARON: With this we would know ahead of time, and all we would say is just make sure that the county has in its hands the permits that they're supposed to have, that we've been Page 133 July 19, 2007 requiring, we've been saying we want all along. So again -- CHAIRMAN STRAIN: I think, Ms. Caron, to benefit where you're trying to go, because there would have to be a process to be understood as what kind of a permit this would take, there are other bodies that should review it and probably departments that may want to tweak the language. We'd be better offletting this happen in the next cycle and making sure that it's done right. So I know you would want -- COMMISSIONER CARON: I have no problem doing that. CHAIRMAN STRAIN: Anybody got any further thoughts before we -- COMMISSIONER MURRAY: I'll weigh in. The language, not much tweaking I think is likely. And I think it reaches out to arrest a problem. Maybe we won't have any more trees cut down in the meantime if it were to go to the next cycle. But I don't know, I'm looking at it, and within my abilities to perceive what kind of -- I can't see that there's much that needs to be tweaked. So I would be an advocate to putting it in this cycle, if possible. COMMISSIONER SCHIFFER: Mark, I'll make a motion. And since the planning commission in the LDC is allowed to make -- request amendments to the LDC, I'd make a motion that we request this to be an amendment that staff will handle in the proper procedure. CHAIRMAN STRAIN: Okay, is there a second to the motion? COMMISSIONER ADELSTEIN: I'll second it. CHAIRMAN STRAIN: Any discussion? (No response.) CHAIRMAN STRAIN: For procedure, I'm understanding it means it's going to go through all the review, all the processes, all the agencies, so it would really be the next cycle. COMMISSIONER SCHIFFER: Whatever staff wants to do. CHAIRMAN STRAIN: If Joe, you want to confer with the BCC to make sure that before you spend a lot oftime that there's weight Page 134 July 19, 2007 there, that's your prerogative. But I don't have any problem with that. I think it's a good suggestion. All those in favor, signifY by saying aye. COMMISSIONER KOLFLA T: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER CARON: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER TUFF: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MURRAY: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Okay, motion carries. Thank you. COMMISSIONER CARON: I'd appreciate follow-up from you. MR. SCHMITT: Yes. And I'd like to get a copy of that language. COMMISSIONER CARON: Yeah. I'm sorry, I thought I passed it down. Item #11 PUBLIC COMMENT CHAIRMAN STRAIN: The last thing, public comment? Any public comment? (No response.) CHAIRMAN STRAIN: Okay, I have one comment, and that is there's been a big push nationally and with Governor Crist to do something about greenhouse gasses, cut back on carbon waste and tonnage. And I think it's about time this county did something. Page 135 July 19,2007 So the very first thing we can do is stop keeping this room at 70 and 71 degrees. My hands are so cold I can't write now. And I don't think I'm the only one up here with this problem. So please, somehow put that word out, unless we have to ask the BCC to pass a motion that we keep a reasonable temperature in here? COMMISSIONER TUFF: Just wear a jacket and you'll be all right. CHAIRMAN STRAIN: Unbelievable. COMMISSIONER VIGLIOTTI: I second that motion. CHAIRMAN STRAIN: Okay, with that, we are adjourned. Thank you. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 1: 19 p.m. ***** COLLIER COUNTY PLANNING COMMISSION MARK STRAIN, Chairman These minutes approved by the Board on as presented or as corrected , TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC. BY CHERIE' NOTTINGHAM. Page 136