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CCPC Minutes 12/13/2007 S December 13,2007 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida December 13,2007 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 SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Mark Strain Lindy Adelstein Donna Reed-Caron Tor Kolflat Paul Midney Bob Murray Brad Schiffer Robert Vigliotti ALSO PRESENT: Jeffrey Klatzkow, Chief Asst. County Attorney Marjorie Student-Stirling, Assistant County Attorney Joseph Schmitt, CDES Administrator Susan Istenes, Zoning Director Page 1 AGEND~ Revised COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, DECEMBER 13,2007, 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 MAYBE 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 AVAILABLE 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 VERBA TIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED, 1. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY SECRETARY 3, ADDENDA TO THE AGENDA 4. PLANNING COMMISSION ABSENCES 5. APPROVAL OF MINUTES - Not Available at this time 6. BCC REPORT- RECAPS - Not Available at this time 7. CHAIRMAN'S REPORT 8. ADVERTISED PUBLIC HEARINGS A. The Board of County Commissioners (BCe) has directed that the Collier County Planning Commission (CCPe) review and comment on a proposed settlement agreement with Lodge Abbott Associates, L.L.C. (owner of the Cocohatchee Bay Planned Unit Development (PUD) project) to settle alleged claims arising from a denial of an amendment to the Cocohatchee Bay PUD. These claims are: (J) A petition for writ of certiorari, Case No. 05- 962-CA, now pending in the Twentieth Judicial Circuit in and for Collier County, Florida, and (2) an alleged Bert Harris Private Property Rights claim. (Coordinator: David Weigel, County Attorney; Marjorie Student-Stirling, Assistant County Attorney) CONTINUED FROM 11114/07 9. OLD BUSINESS 10. NEW BUSINESS I 1. PUBLIC COMMENT ITEM 12. DISCUSSION OF ADDENDA 13. ADJOURN 12113/07 eepe AgendalRBlsp 1 December 13, 2007 CHAIRMAN STRAIN: Good morning, everyone. Welcome to the December 13th meeting, special meeting of the Collier County Planning Commission. The purpose of this meeting is one issue and that's the settlement agreement that's been proffered for the Bert Harris case regarding Cocohatchee. We'll start out if you'll all please rise for pledge of allegiance. (Pledge of Allegiance was recited in unison.) CHAIRMAN STRAIN: If the secretary will please take the roll call. COMMISSIONER CARON: Mr. Kolflat? COMMISSIONER KOLFLA T: Here. COMMISSIONER CARON: Mr. Schiffer? COMMISSIONER SCHIFFER: I'm 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: Yes. COMMISSIONER CARON: And Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Here. COMMISSIONER CARON: Full house. CHAIRMAN STRAIN: Thank you. Okay, we're going to talk about the agenda today, but first I have a small housekeeping matter for next Thursday's planning commission meeting for Mr. Schmitt. Joe, the agenda for next week was issued, and our packages were sent out yesterday. On the agenda are Items E and F. E is a rural fringe mixed use district discussion, and F is a new Petition Page 2 December 13,2007 CPSP-2007-6. The packets do not contain those two items. Can you make it clear to staff that if we don't receive them by Friday they need to be pulled from the agenda or they will be continued from the agenda. MR. SCHMITT: I'll do that. CHAIRMAN STRAIN: Thank you, sir. Okay, as far as today's agenda, as everyone has experienced there's been a flurry of new documents issued to us. We had one on Tuesday, one on Wednesday -- actually, two on Wednesday, one in the morning, one in the evening I know on today's meeting. So there's not been a lot of time for us to have sunk our teeth into the documents that came in this week. I wouldn't expect that we should be expected to. It seems ironic that after nearly a year of this settlement sitting around waiting to get here that these changes now are coming in at the last minute as they are. And I will actually turn to the commission today to see how far you'd like to go with this. But before we get into that, there's something else that occurred on Friday of last week. There was an SDP meeting to go over the actual blueprints that we all received the week before. Because of that meeting, I now understand there are new blueprints, new plans with changes on them, changes that we certainly need to be aware of before we discuss those plans. So with the new settlement agreement language coming out and since we have had some about a day or two, and it may not have been that extensive in regards to the overall document, some of us may feel we can proceed today at least with some general discussions on the Issue. But I certainly expect that this meeting will have to be continued to a day after the holidays in which we can finish discussing the items that we certainly cannot get to today, including the revised plans and the various -- I think it was the bald eagle management plan that came Page 3 December 13,2007 in last night and maybe some revisions. And then -- well, Ms. Caron? COMMISSIONER CARON: Yeah, I think it's impossible to go over this settlement agreement, because the settlement agreement relies on the approval of the SDPs, which are just coming out now that staff hasn't even reviewed. It also attaches the amended bald eagle management plan and master plan, all of which arrived while we were here last night. While we were here doing other county business, that was e-mailed. And a quick poll of everybody this morning, no one had received that. No one had it printed out, no one has it, so -- CHAIRMAN STRAIN: Well, I have it here printed out. COMMISSIONER CARON: Okay, so you got it. I got it this morning. When I got up I printed it out. CHAIRMAN STRAIN: Let me suggest something. There are paragraphs -- Richard, we're having -- MR. YOV ANOVICH: I know, I was going to ask if I can help explain what you received. It sounds like you got a whole lot of new documents, but you didn't. And if I could help you with that, I would appreciate the opportunity. CHAIRMAN STRAIN: Okay, but let's get into -- I'm trying to think of where I was on this thing. There are numerous paragraphs and pages in this settlement agreement. There are paragraphs that refer to the bald eagle management plan, there are paragraphs that refer to the SDPs. What I'm suggesting is, is any changes that are needed in the settlement agreement as a result of these new documents, we can certainly review again in January after we review the plans. But there are some basic language issues in the settlement agreement that haven't changed and maybe we could start working our way through the agreement just to get ahead of the curve a little bit so that by the time we come back all eight of us are more familiar with what's in the Page 4 December 13, 2007 agreement, more familiar with the discussion that we've had today to a point where when we do get the corrected plans we can more readily read them, we can more readily see how they fit to the document we have today. That was where I was going to suggest to go. And certainly I wouldn't want to touch the plans or an analysis of the bald eagle management plan today because of the freshness of those documents. Mr. Schiffer? COMMISSIONER SCHIFFER: And Mark, could you -- because the agreements came by mail, bye-mail and by courier, I'm not sure which is the most up-to-date one. It could be the last one to arrive, but the e-mail is quicker. So before we go anywhere, could we really give me the clue that tells me? CHAIRMAN STRAIN: Yes. I think -- well, I've got every rendition right here. I have the renditions from everybody that's been sent to us since we started this process. I can certainly tell you which ones I reviewed and then what changes I've made as a result of that. There's not been that extensive changes. COMMISSIONER SCHIFFER: No. CHAIRMAN STRAIN: A couple new things were introduced. We had to analyze based on that. But overall, I think we can still get some of our work done today, and I think that would be the best solution to get moving. But before we go into what version we should be reading from today, I want to make sure everybody in the commission has a chance to comment on how far we need to go today. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Two things: I'd like to go as far as we can, and I don't have a copy of what everybody printed out last night. CHAIRMAN STRAIN: Well, I don't think that we should be discussing what was printed out last night, because we certainly Page 5 December 13, 2007 couldn't have read it between the time we got home last night and this morning, unless -- well, we could have, but I'm not sure it would have been read by everybody. So I would suggest that our discussions today center on the documents that we -- the settlement agreement through the revision we got a couple of days ago, and that's the one that changed the setbacks between the buildings, included some new building-to-building setbacks that were previously struck out. And if we could go to that version and work from that, I think we can at least walk through the paragraphs, talk about our concerns about each paragraph. And if they linger on the new documents, we'll just skip that paragraph until we continue sometime in January. Does that work as a plan for everybody here today? COMMISSIONER MURRAY: We'll give it a try. CHAIRMAN STRAIN: Okay. And Mr. Schmitt, is there some way that you could find out during -- before the end of to day's meeting when in January or -- when the next meeting time we'd have available to meet in this room? MR. SCHMITT: Yeah, I'll try and get some dates in January to see when we can move this. At least -- it's going to be at least four hours, I would imagine. CHAIRMAN STRAIN: Right. But I would also suggest that you look at evenings as well. I mean, we're willing to meet in the evenings. We've done that in the past. And in some cases it may be more advantageous to the community to meet in the evening. So I'm not saying that's the first choice, but as a backup date or time, that would work. Mr. Murray? COMMISSIONER MURRAY: There are no sequences to the numbers that we've received, so I -- just to identify, are you-- CHAIRMAN STRAIN: I'm going to do that in a minute. COMMISSIONER MURRAY: Okay. Page 6 December 13,2007 CHAIRMAN STRAIN: I want to make sure we finish. Everybody's in agreement then, we're moving forward, and we'll do that. Now, the version that we should be reviewing I believe today was issued on 11/11. And if you turn -- COMMISSIONER MURRAY: Not the 12th. CHAIRMAN STRAIN: -- to Page 5, on the top of the page you should have a large underlined section. Not struck through but underlined. And if you don't have that one, then the other one that came in from the county attorney's office on 12/12 -- COMMISSIONER MURRAY: That's the one I focused on. CHAIRMAN STRAIN: On 12/12 on Page 5. Well, it's got the same thing, except on the left-hand side it's got a bold line showing there was a correction and change made to the document. Is that the one you have? COMMISSIONER SCHIFFER: Yeah. CHAIRMAN STRAIN: Okay. COMMISSIONER SCHIFFER: And that has a strike through, kind of a strike through version of it? CHAIRMAN STRAIN: No, it's not struck through, it's underlined. COMMISSIONER MURRAY: They used deleted. CHAIRMAN STRAIN: Yeah, that's the -- well, yeah, that looks like it's the right one. Yes, Mr. Adelstein, that's okay. Well, that works fine, too, because there's not much difference between the 11/11 version -- I mean the 12/11 version and the 12/12 version. So are we all on the same page? COMMISSIONER VIGLIOTTI: Yes. COMMISSIONER MURRAY: I think so. CHAIRMAN STRAIN: Is everybody there. Page 7 December 13,2007 COMMISSIONER SCHIFFER: But Mark, can I say something? CHAIRMAN STRAIN: Sure. COMMISSIONER SCHIFFER: Can't these documents be dated and time stamped like everybody else so we could look at a document and know right away and not play where is Waldo with the words and stuff? CHAIRMAN STRAIN: I think part of the problem's been they've not been coming through a central person. I would have suspected they all should have came through the county attorney's office, but I'm not sure, based on Mr. Klatzkow's comments last night, that any of them came from the county attorney's office. So in the future I would like to ask that everything that is distributed on this matter come to us from the county attorney's office, and then they can log it in and we can know that they've looked at it and we got it. Ms. Caron? COMMISSIONER CARON: To that point, what came through last night was from the county attorney's office, and it is not dated. CHAIRMAN STRAIN: But I think we can correct that in the future. COMMISSIONER CARON: So I think we need to make sure that that gets corrected, no matter what office it comes out of. CHAIRMAN STRAIN: Ms. Student? MS. STUDENT-STIRLING: For the record, Marjorie Student-Stirling. That came from the PMS office to me and I forwarded it to you. It was not generated at our office. And that came in yesterday afternoon, and I forwarded it to you. CHAIRMAN STRAIN: Okay, what I think we'd like to say, Margie, is anything that comes in to you that gets sent out to us, we need a date stamp on it of some nature. MS. STUDENT-STIRLING: Okay. COMMISSIONER ADELSTEIN: Yes. Page 8 December 13, 2007 CHAIRMAN STRAIN: Okay, and that would help us. Mr. Murray? COMMISSIONER MURRAY: Ifwe have a settlement agreement presumably developed by -- or at least qualified by our own attorney and then another settlement agreement comes in, would you just pass it through or is it considered to have been acknowledged or appreciated as being the final document? Or are we just getting iterations to review and then we make a decision which one we think is right? Is that what's happening? MS. STUDENT -STIRLING: No, what happened here, I know prior to this there were documents that went back and forth between Mr. Pettit and Mr. Y ovanovich's office. And then that culminated in a document that you received I guess 11/11. Then there were some additional -- there was an additional issue that came up about ownership of submerged lands. And I just met with the applicant on that -- tried to meet with them, but was finally able to I believe it was last week. And I suggested that some language be put in the settlement agreement to address that. So that's how that change came about. And the agreement was sent to them and they've went ahead and made the changes. But we will add footers. In the future I would point out that some of the items that came through were PDF, and I don't know if we can open those and add information on a PDF item. The -- I believe it was the maps that were PDF. CHAIRMAN STRAIN: Margie, on a PDF item, you can print it, you can date stamp it and re-PDF it, and that's the way to do it. MS. STUDENT-STIRLING: Okay, fine. CHAIRMAN STRAIN: I think this board is absolutely correct, we have to have things dated from your office, and we need it to come -- on a legal matter on this it needs to come from your office. So I'm -- Mr. Klatzkow has indicated by a thumbs up that that's going to work and we'll keep doing it that way. Page 9 December 13,2007 Okay, as far as the introduction into this goes, some housekeeping matters as usual. This is being recorded by our -- by Cherie', who's always faithfully here. And with the exception of myself, everybody else needs to talk at a pace that she can adequately take notes. So -- and I'll try to, Cherie'. I ask that everybody please be recognized before we speak and not talk over one another. Members of the public, we're here to listen to the public as well. Everybody will be welcome to speak. I ask that you fill out a slip and leave it with -- Margie, are you collecting the slips? MS. STUDENT -STIRLING: Yes, I am. CHAIRMAN STRAIN: Okay. We'll have a -- during your discussion we ask that you limit your discussion to five minutes, but that's not a steadfast rule. We understand there -- sometimes it has to go a little bit longer and we'll allow some tolerance in that. And Richard, you're standing up there for a reason, I assume. Did you still want to confuse the issue on -- MR. YOV ANOVICH: No, I don't. But I want to explain it, because I don't want it to appear that from our side of the issue we generated this last minute flurry of documents. So if I can just briefly take you through the exhibits, it may help when you ask questions of us related to the -- CHAIRMAN STRAIN: No. MR. YOV ANOVICH: -- boilerplate document. CHAIRMAN STRAIN: If you're going to go into that, you'll have to wait until we get further into the agenda. MR. YOV ANOVICH: Oh, I thought we were ready to go into the document. I'm sorry. CHAIRMAN STRAIN: No, we're going -- I have a procedure I want to follow this morning. We're still not there yet. Okay, in order to move forward with this, we were asked to review the settlement agreement and how it impacts either the PUD or Page 10 December 13,2007 the interpretations that might come out in the constructed project. To that end, today we will be discussing mostly the language in the settlement agreement, as we've discussed. The SDPs have changed. In order to try to move our discussion forward in an organized manner, I typed up a list of issues in the settlement agreement that we all may want to discuss and be aware of. It's a six-page report. It's more of a question format. I'm going to pass it out. And I have extra copies for those people in the audience who would like a copy. I gave you one too many, Mr. Midney. COMMISSIONER ADELSTEIN: I have two too many. CHAIRMAN STRAIN: I have one for Cherie' as well, the court reporter. And I have copies for county attorney's office, Mr. Schmitt and anybody else that would like them. What we'll do is, first of all we're going to have an introduction, presentation by Marjorie Student. Then Susan is going to talk to us about some of the issues that staff is dealing with. And then if the applicant wants to address this, they're more than welcome to, and then we'll get into our discussion. I laid this out in a manner paragraph by paragraph, so that if we wanted to go through the document and start following it and then expanding on it, it would make it a little more organized and easier to do so. I certainly didn't get all the issues, but I touched on some of them. And with that, Ms. Student, it's yours. MS. STUDENT -STIRLING: Yes, for the record, Marjorie Student-Stirling. And I'm going to give a little background of how we got here. As you know, back in '05 the applicant filed for an amendment to their existing Cocohatchee Bay PUD that would have had a new bald eagle management plan attached to it. The old bald eagle management plan that was an attachment from Page 11 December 13, 2007 2000 contains some limiting language or prohibitory language for them to be able to construct within certain distances of the eagle's nest. So they came up with a new bald eagle management plan with a construction schedule and so forth that would have relaxed those standards. And as I understand it, this was with consultation and a take permit that was issued by the federal government. That amendment was denied by the Board of County Commissioners, so they filed a petition for writ of certiorari in circuit court here. The county responded to that. They filed their reply to our response, and that matter was pending and a motion was filed holding in abeyance pending the settlement agreement. There was also a Notice of Claim filed alleging a Bert Harris case. And this settlement comes also to settle the Bert Harris claim. And the Bert Harris law gives very broad latitude in being able to settle a claim, including an adjustment of land development or permit standards or other provisions controlling the development of the use of land, increases or modifications in density, intensity -- CHAIRMAN STRAIN: I think you need to slow down a little bit, Marjorie. MS. STUDENT-STIRLING: Okay, sorry. Increase or modifications in the density, intensity or use of areas of development, mitigation including payments in lieu of on-site mitigation. So those are just some of the things that the Bert Harris law allows to be adjusted in a settlement. The Board of County Commissioners held a hearing on this matter on December 12th of '06, and an offer was made by the board. There was a very detailed letter sent out by Mike Pettit, formerly of our office, detailing what the offer was that emanated from the county commission meeting. Page 12 December 13, 2007 There were subsequent negotiations between Mr. Pettit and Mr. Y ovanovich, and there were a number of settlement -- iterations of settlement agreement going back and forth. This item went back to the Board of County Commissioners in July of this year with some additional terms in the settlement agreement dealing with building height. And our Board of County Commissioners directed that the settlement go to the CCPC. And they wanted the recommendations of the planning commission on the settlement. And that was the language of the motion of the board. And so because of that we are here. And as I understand it, Mr. Chairman, after Susan makes some remarks, then you are going to go through -- will go through the agreement. CHAIRMAN STRAIN: I'm going to ask Susan to make some remarks, but also give the applicant then a time to address issues, and then we'd start working our way through the agreement. MS. ISTENES: Good morning, Susan Istenes, Zoning Director. I'll be really brief, because I think pretty much you've gone over the status of the site development plan. It is still under review. Current status is that the zoning department and the environmental department are the two departments that have -- still have concerns and outstanding comments about the plans. We did meet with the applicant last Friday for about four hours and did just receive a resubmittal of those plans, based on our comments. I'm losing track of days, but I think it was Monday evening -- I think it was Tuesday, actually. Tuesday about 4:00 we received them and they were distributed on Wednesday. My thoughts were if any of your comments today result in changes to this settlement agreement document that may necessitate changes to their plans, we may wait for another resubmittal and then get that to you. So it really depends on the outcome. But otherwise Page 13 December 13, 2007 our plan was to go ahead and get you all a copy of the resubmittal that was submitted to us Tuesday. If you have any questions, I've got staff here to answer. And I apologize to the individuals in the audience, I only had three copies left. I'll be happy to make more ifthere's need be. Okay, thank you. CHAIRMAN STRAIN: Susan, as a follow-up to your statements, staff has just got a resubmittal on the SDP, so you haven't had time to review that. MS. ISTENES: Absolutely, right. CHAIRMAN STRAIN: The biological opinion -- the bald eagle management plan that I received last night, has staff had time to review that? MS. ISTENES: No. I don't even have a copy of it myself, so I'm not sure who mayor may not have a copy of it on staff. But no. CHAIRMAN STRAIN: I just wanted your confirmation for the record. And the last thing is there's been a change in the acreage. The document we received on Wednesday, I believe, from the county attorney's office indicated new language in regards to the acreage, but the acreage was blank. There was no -- the numbers weren't filled in. Has your office had time, or the environmental office had time to react to those changes in acreage in regards to the project? MS. ISTENES: No. CHAIRMAN STRAIN: Okay. So those are issues that will still have to be deferred to sometime in the next meeting. Any other questions of Susan or Margie before we talk to the applicant? (No response.) CHAIRMAN STRAIN: Okay, Richard? MR. YOV ANOVICH: Good morning. For the record, Rich Y ovanovich. Page 14 December 13, 2007 I want to respond to a couple of things about exhibits that were handed out last minute. And let me take you -- let me explain why. Friday for the first time we were asked to prepare an exhibit that showed where the location of the sidewalk that's referenced I think in paragraph three or six, I forget which one, where exactly would that location be. So we were asked Friday afternoon to prepare an exhibit, which you have as Exhibit 4, showing the sidewalk along the western side of Vanderbilt Drive that satisfies the condition. So that's Exhibit 4. CHAIRMAN STRAIN: Question. Just -- I don't mean to interrupt you, but I want to correct you. I didn't receive Exhibit 4. I don't know if anybody did. It was not part of the attachment that came out late. I just want to make sure you understand that so now you can go ahead. MR. YOV ANOVICH: Well, we prepared as requested an Exhibit 4 that has been reviewed and approved by your staff. And I think Nick can tell you that he's okay with Exhibit 4 that shows the sidewalk running the full length of our property that we own on the western side of Vanderbilt Drive. Even though you don't have Exhibit 4, that's what Exhibit 4 is. It's a very simple exhibit to understand. MR. SCHMITT: Mr. Chairman, that was in an e-mail that -- I believe that was in the e-mail. I have the four exhibits. COMMISSIONER CARON: Last night. CHAIRMAN STRAIN: Oh, it was last night? COMMISSIONER CARON: Yeah, that's the last night's. MR. SCHMITT: It's the one that we were in here at our meeting. That's shown at 5:20. MR. YOV ANOVICH: So anyway, I'm prepared to put that on the visualizer. I don't think you'll have any trouble understanding that exhibit. But it was prepared immediately after our Friday meeting and reviewed and approved by your staff. MR. SCHMITT: I can try and -- I can dump in onto the I-drive, Page 15 December 13, 2007 if you want to see it on the -- MR. YOV ANOVICH: The second issue, these comments about the bald eagle management plan and the revisions, I was asked for the first time Tuesday afternoon, this week, to revise the bald eagle management plan attached to the settlement agreement. Because if you'll remember, the bald eagle management plan attached to the settlement agreement says it automatically self-amends if the eagle relocates and we get a new permit from the Corps or the Water Management District or whatever permits we have to get. So we have been working from that original bald eagle management plan, because it automatically self-amends when the changes occur. Be that as it may, we were asked to please update it Tuesday afternoon, which we -- I got called Tuesday, we contacted the right people on our team, Wednesday it was done. The only change to the bald eagle management plan in front of you, whether you want to believe me or not, is the resequencing of the building. Because if you remember, the eagle used to be on the southern portion of the property, so we started with the northern buildings and worked our way south. The eagle relocated to the northern portion of the property, so we changed the sequence to where we start on the southern side and work our way north. And if you'll note in the footnotes, there's a reference to the modification to the original bald eagle management plan -- or the biological opinion, I'm sorry. So those are the only changes in the bald eagle management plan that occurred. And that was a request made to us last minute. Then on the master plan that's in front of you, the change that occurred on the master plan as related to the submerged land issue, that again we were asked to delete the submerged lands from the PUD. We calculated that number. It can be verified. But we took the "P", which references preserve, out of the water, because the state Page 16 December 13,2007 claims they own the water, and moved the "P" onto the land that was always part of the preserve. So that's really the only change that happened to the master plan. These were changes that were necessitated by conversations we had Friday. And instead of discussing them orally, we tried to get this information to you right away. I prepared, as soon as I got the document from the county, because they were, from Mr. Pettit, did the strike through and underlined version that you received as part of his letter. I said, please get me the agreement, so I can use your agreement as the base, show all the changes from what you've seen as strike through and underlined to the planning commission so everybody can understand what changes were made as a result of our meeting. I prepared the sovereign land paragraph, I'll call it. There were blanks, because I didn't have those blanks. And I submitted that language to the county with the blanks to be filled in. I also know that we submitted, and I don't know whether you have it or not, a version that filled in those blanks. The net effect is our calculation is there were 173.5 acres of submerged lands within the original PUD document. And what I tried to do in that paragraph was subtract 173.5 acres from all the appropriate places in the PUD to show you the reduction of that overall PUD acreage and the impact of that on the project. It basically increases project density by -- COMMISSIONER MURRAY: 1.-- MR. YOV ANOVICH: -- three-tenths -- .36 acres -- units per acre. So we tried to respond to comments that were given to us and have you all have the latest document. We tried to do it in a format that was pointed out that changes from what you previously received so you wouldn't have to spend a lot of time re-reviewing it. I hope that was helpful. I hope you understand why you've got some Page 17 December 13, 2007 documents in the sequence that you got those documents. But those requests were requests made of us many, many months after the document had been reviewed and signed off on and we tried to get those done as quickly as we could. And they're not significant changes. So I hope that we can get through -- the SDP is a different issue. I know you want to come back and talk about the SDP. But I hope we can get through the bulk of the settlement agreement today so that we're not -- when we come back next, we're focusing on what comments you may have on the SDP documents. And of course ifthere's any changes in the SDP documents that may relate to the text, we'll address that. But I hope we can get to the, you know, 95 percent of the way through the text today so that we have a limited focus at the next meeting. CHAIRMAN STRAIN: That's what we're aiming for, Richard. MR. YOV ANOVICH: Now, Mr. Chairman? CHAIRMAN STRAIN: Yes. MR. YOV ANOVICH: Is it okay that I stand up here while we're going through each paragraph, since it's kind of in a document that was jointly drafted at this point, to answer questions, or would you rather me sit down till the appropriate -- CHAIRMAN STRAIN: No, I have no problem. MR. YOV ANOVICH: -- time to respond to questions. CHAIRMAN STRAIN: The more information we can exchange and the quicker, the more we can get to resolutions on issues that we question. I have no problem with that. Ms. Student? MS. STUDENT -STIRLING: Yes, I'd like to respond about the bald eagle management plan. I just spoke with Ms. Burgeson, and she had advised me that staff has been asking for that revised plan ever since the eagle moved. I believe that's correct. And I believe Ms. Burgeson will come up and Page 18 December 13,2007 put that on the record. I also spoke with Mr. Pettit, even though he's no longer with our office, and he advised that he had been asking for the revised bald eagle management plan for quite a while. So I want to put that on the record. CHAIRMAN STRAIN: Thank you. I don't think there's any reason for Ms. Burgeson to verify anything that you've said. We're not here really to debate the timing of the bald eagle management plan, but its interaction with the settlement agreement and the SDP. And I think we've now decided we'll to that next month, if that's the month we get available. I do have one question as the result of the input I've heard so far. This settlement went to the Board of County Commissioners for proposed finalization in December of last year. A year later we're finding already admitted major discrepancies in the settlement in regards to needs, things that transportation has had to review and resubmit, acreages on the water, the bald eagle management plan having to be revised. Just out of curiosity, when this went to the BCC a few years ago, did it go to them with a recommendation to settle it at that point with all these lingering issues that are still now coming out today? MS. STUDENT-STIRLING: There was an agreement that went to them. It was discussed; there was a lengthy discussion. As the basis of that -- or from that discussion, Mr. Pettit wrote a letter to the -- Lodge Abbott and their representatives setting forth what the board's offer was in the letter. And that letter should be in your packet. It was a rather lengthy letter. And I had gone through that letter and, you know, compared it with the settlement that you have. And except for some things at the end and some -- yes, there was a modification in the transportation language that -- the issue about the building separation and so forth, came up later. And Mr. Pettit was involved. I really wasn't involved Page 19 December 13,2007 at that point with the goings back and forth with the documents between the applicant and our office. But I understand that there were, you know, several iterations that came out after the offer was made. CHAIRMAN STRAIN: Well, in hindsight it's probably good that the Board of County Commissioners deferred a decision on this. Okay, with that I guess we can start walking through the agreement. Is there any other general questions anybody has? (No response.) CHAIRMAN STRAIN: We normally take it through a page at a time. The document I distributed to you earlier that I had typed up starts to discuss some various paragraphs. I thought it would be helpful to everybody if we follow that in some kind of organized manner. And that does start with the first page of the whereas clauses. And I'll ask the committee, do they have any questions or concerns involving the whereas clauses on the first page. Ms. Caron? COMMISSIONER CARON: Yes, in conjunction with what you have said in your list of issues here on the final whereas clause, I would submit that that whereas clause needs to come out altogether. There is absolutely nothing in this agreement that provides environmental enhancements or protections to the bald eagle within the PUD. So I don't think we should start out an agreement with what essentially is not a true statement. CHAIRMAN STRAIN: For the benefit of this board, what legal office originated the settlement agreement? Was it the county attorney's office or was it the applicant's office? MS. STUDENT-STIRLING: I believe it was the applicant. But there was quite a bit -- well -- MR. YOV ANOVICH: It came from your office, Margie. It was from Mike Pettit. MS. STUDENT -STIRLING: I'm talking about the original agreement that -- Page 20 December 13,2007 MR. YOV ANOVICH: This agreement, yeah. MS. STUDENT-STIRLING: No, that predated even the county commISSIon. MR. YOV ANOVICH: This document with the whereas paragraphs originated from your office. We had given business points to your office, but the actual drafting of the settlement agreement came from your office. CHAIRMAN STRAIN: The reason my question is the author of this document, I certainly would want to understand from them the need for the whereas clause that Ms. Caron has questioned. And if there's no need for it from either side, then it would be much simpler to finish the discussion on it by simply striking that whereas clause. So since you two are the legal attorneys involved with this at that point, is there a need for that whereas clause? Ms. Student? MS. STUDENT -STIRLING: I was just going to put on the record that the Bert Harris law talks about the public interest being protected by the settlement agreement. And I believe that's why it was inserted. And I would point out that there are some -- there's some mitigation, and there's an off-site nest that is set forth in the bald eagle management plan that's attached. So there would be mitigation as well as an alternate site for the eagle. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: What this paragraph says is that this protection is happening on Lodge's PUD property. And that is not correct. That doesn't include off-site mitigation, it doesn't include some tree property for the fake tree that they were talking about purchasing for that property. That is not part of the PUD. They may purchase that and that's a good thing and all of that, good to try, but it's not a part of the PUD. CHAIRMAN STRAIN: Mr. Klatzkow, are you going to move Page 21 December 13, 2007 up there for discussion? MR. KLATZKOW: Yeah. I just want clarification here. We had a settlement agreement that went to the board as part of an executive summary back in December. That's not the agreement you're looking at. That agreement was modified by the board during their discussions. What you're looking at is an attempt by the parties to capture what the board wanted, and then additional issues have popped up. To get to Commissioner Caron's point, the original whereas simply said, whereas, the settlement offer protects the public interest served by the regulations at issue. You could end there. That's what was before the board. That was what the board approved. I don't see any reason why that should be changed. And I think we're done with it. MS. STUDENT-STIRLING: That's fine. CHAIRMAN STRAIN: Okay, I think that's a simple solution. Is there any objection from your point, Richard? MR. YOV ANOVICH: You know, I think there are benefits that come from the bald eagle management plan, but if you don't feel there are, then revise the document the way you want it. It's not worth arguing over it. CHAIRMAN STRAIN: That's where I'm going. If it's not worth the fight, let's not get into it. MR. YOV ANOVICH: I think there are benefits related to our bald eagle management plan. I think that whereas paragraph is an accurate statement. It was put in there, I believe, by Mr. Pettit because he wanted to tie the bald eagle management plan to this settlement. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Ifthere are on your property benefits in the bald eagle management plan to the eagle, please enlighten us. MR. YOV ANOVICH: The sequencing of the construction is a Page 22 December 13,2007 benefit to the eagle. That's what the bald eagle management plan does, it sequences construction. That's a benefit. COMMISSIONER CARON: Now, you're telling me today on -- in a document that nobody else on this board has seen, that the sequencing has changed? MR. YOV ANOVICH: And that's the beauty of the plan. COMMISSIONER CARON: That's new information to this board. MR. YOV ANOVICH: That's the beauty of the plan is that when the eagle relocates, the sequencing changes. Because under the old sequencing, the first building would have been the northern building, which is closest to the eagle. So the -- I think we've proven the very point that the bald eagle management plan itself in the sequencing and timing of construction is a benefit to the bald eagle. CHAIRMAN STRAIN: Why don't we resolve it this way: That paragraph will be left to continue after we've read the bald eagle plan that was distributed last night for our discussion in January to whenever we continue this meeting to. Yes, sir, Mr. Schiffer? COMMISSIONER SCHIFFER: But we're going to strike everything past the word interest? CHAIRMAN STRAIN: No, I think we're going to leave the thing as it is until we all have time to read the bald eagle management plan. I'm sure we'll see -- I mean, I've looked at it, I know it does change the sequencing. I haven't studied it to make sure it's accurate. But I believe what Richard says will probably be found to be accurate. If that's the case, we may want to leave it in. So let's just not get in there today at this meeting until we've had time to read the BMP. Okay, is there anything else on Page I? (No response.) CHAIRMAN STRAIN: My clean-up of the first three words, Page 23 December 13,2007 whereas the settlement offer and this agreement, I don't believe there are two issues here, there's an agreement as defined in the first sentence. So the reference to a separate settlement offer I don't think exists. So I just suggest that for clean-up reasons we take care of that. MR. YOV ANOVICH: Again, let me just tell you why I think it should be in there, is because under the Bert Harris Act you have to make us a settlement offer. And I think this is evidencing the offer from the county and the settlement agreement. Either way. I just think that's why Mr. Pettit originally put it in there. CHAIRMAN STRAIN: I don't disagree with wanting to have it in there, but I thought it would be in there by the reference to agreement and release as capitalized because that's defined in the very first line of the very first page. It says this settlement agreement and release, parenthetical agreement and release, end parenthetical. So basically you're saying this settlement offer and the settlement agreement, if you were to read into that definition of the terms -- I was simply trying to make it clear the agreement and release that we're talking about today is the settlement offer as defined in the document itself. So that was my suggestion. On Page 2, anybody have any questions on Page 2 before we get into the document I passed out? COMMISSIONER MURRAY: I'm not even going to try. We're going to go with your document. CHAIRMAN STRAIN: Mr. Murray? Thank you. Ms. Caron? COMMISSIONER CARON: Just that in paragraph two it talks about again, the bald eagle management plan, which people haven't seen. And acceptable deviations, which relate back to the SDP's. So I don't think we can make any determinations or have a discussion there. CHAIRMAN STRAIN: Okay, well, then I think the first-- Page 24 December 13,2007 COMMISSIONER CARON: And three is the same way. CHAIRMAN STRAIN: Well, I've got some changes suggested on three that are still irrelevant of the issue you're speaking about. Paragraph three, Page 2, it makes the settlement agreement contingent on the three SDP's. And as my document states, since the county is not solely in control of those SDP's, as it is a submittal controlled by the applicant as well, this reference needs to relate only to those review responsibilities and not the submission qualities. And maximum date needs to be established as an acceptance date regardless of the SDP status, otherwise there would be no incentive to ever complete the process. Where I'm going there is the developer's money is going to be made on the high-rises. He's got a series of amenities, which one is the clubhouse. But the SDP for the golf course, for example, could linger. He could decide to withdraw it. He could decide to submit a correction to a revision -- a portion of a correction to a revision every six months. This thing could drag on for a long time. And if it does, those three SDP's are the trigger dates for numerous elements within this document. So I don't think we ought to rely solely on the SDP approval. That should be part of it. But since it is in control of the applicant, I think there needs to be a drop-dead date as to when it's going to apply, regardless of when the SDP's are approved to protect the time frames of the public. That was the purpose of the statement. And I'm looking for any input from the county attorney's office or anybody else. MS. STUDENT -STIRLING: I don't necessarily disagree with having a drop-dead date in there. I believe it was contemplated, however, that the SDP's would be approved right after this agreement was agreed to by all parties. And just to give you a bit of history as to my understanding as to why that's in here. CHAIRMAN STRAIN: The only concern I have is I don't think Page 25 December 13, 2007 the SDP's, based on the review that I did on the plans to date and the lack of ability to review them, since they've just been resubmitted, are in a position where they're going to be approved right away. And again, it doesn't forestall someone from saying well, we'll take the first two, we just won't pick up the third one. MS. STUDENT-STIRLING: Understood. CHAIRMAN STRAIN: It's routinely done, it can be done very easily, and I wouldn't want to see us get in that trap. MS. STUDENT -STIRLING: I don't know, staff may wish to comment. MR. YOV ANOVICH: To be honest with you, it never even entered our mind to play that game. Maybe others do. But our goal, frankly, was to have this settlement agreement approved by the Board of County Commissioners, which then would mean immediately our SDP's could be approved. Because it's this settlement agreement that's holding up our ability to get the SDP approved. So that was our goal. If you would like to say don't bring this settlement agreement to the Board of County Commissioners until the SDP's are ready to go, we're okay with that, because we're in a hurry. We want these things approved. We want the SDP's locked in stone, so we're okay with that. Now, I will tell you I'm not okay with a drop-dead date, because if you've ever been through the process, sometimes comments come from the other side that were not raised and they usually say well, it's something that we submitted that triggered a new comment. Sometimes that's true, sometimes that's not true. So I think the better way to handle it would say let's just make sure the settlement agreement goes to the Board of County Commissioners on an agenda after staff has completed their review and the only thing left is the bald eagle management plan. And that's -- would then release everything, because we would be ready to go. CHAIRMAN STRAIN: Mr. Schmitt, what do you think? Your Page 26 December 13, 2007 office is the one that's going to be responsible for the coordination with those SDP's. MR. SCHMITT: IfMr. Yovanovich is comfortable with that, that's fine with me. As Ms. Student pointed out, when this thing first started the discussion became who was going to assume the risk from the standpoint of -- that's why when the developer at least proposed that -- as Marjorie said, the board would approve the settlement agreement. The settlement agreement serves as the basis for review, and then the SDP's go through the review process. Once the SDP's are approved, the settlement agreement becomes effective. That was sort of the plan. It would be moving in parallel, so to speak. I understand clearly, Mr. Chairman, what you're saying. If you wanted to make this specific, just as Mr. Y ovanovich pointed out, it would be worded to the effect of upon issuance of the preliminary -- pre-approval. I was just thinking of the word. We have a pre-approval letter and then we have a final approval letter. I know that sounds like double speak, but the final approval is when they actually pay their impact fees and they're issued the notice to proceed. But the pre-approval is the letter issued by the engineering director who signs off on it and says your SDP is approved, come in and pay your impact fees. You get the final approval after paying impact fees and then you set up a date for a preconstruction conference. So if we want to put wording in there to the effect of upon issuance of the approval or final approval or pre-approval letter by the county for the subject SDP's, words to that effect, that's fine. And I think that, quite frankly, puts both parties in a position of ensuring that, one, the county is protected because then the -- we would then take the agreement to the board. But we would do the review based on the agreement. So it's kind of which comes first, the chicken or the egg, but we would do the reviews based on the Page 27 December 13, 2007 agreement. But then the county would be protected from a standpoint that the SDP's would be consistent with the agreement, the applicant or the petitioner would be protected because they would not be exposed from a standpoint of risk until they know for sure that their SDP's will meet approval. Does that meet your requirements? MR. YOV ANOVICH: As long as you're telling me that when we get a pre-approval letter nothing new comes up, then I think that makes sense. If the only condition to getting the final approval letter is the payment of the money, that's very easy. But if there's a chance that a pre-approval letter isn't really final approval, I think I have some concern. I don't want no new conditions show up between the pre-approval -- MR. SCHMITT: The problem is legally I can't give a final approval letter without the approval of the agreement. The agreement is legally the document that provides the framework. CHAIRMAN STRAIN: But you could give a pre-approval letter that okays everything subject to the finalization of the agreement-- MR. SCHMITT: The settlement agreement. That's correct. CHAIRMAN STRAIN: Okay. So now if we modified paragraph three and other instances in this document that refer to the SDP's in that regard, we could actually then rework the language, say upon issuance and pre-approval letters received from Collier County the agreement then goes to the board for finalization. Is that somewhat the direction we seem to be heading? MR. YOV ANOVICH: I don't know that you need to do that in the agreement. You just need to say don't bring the agreement to them, because it would be silly to have a term in the agreement that says it can't go to the board until this happens, and they vote on an agreement that says well, it couldn't have come to us until the Page 28 December 13,2007 condition was met. MR. SCHMITT: But I think our board would be much more comfortable knowing that you all and staff can assure them that the SDP meets all the criteria as defined either in the LDC or in the settlement agreement, and then the settlement agreement comes to them. I think they would -- they certainly would feel assurance. Likewise, it puts the applicant in a position of knowing that it appears that the board will approve the settlement agreement. Jeff? MR. KLATZKOW: I understand where everybody is going, and I think the proposal has a great deal of merit, but this is not what the board offered back in December. The board sent this for recommendations by the planning commission. I think if the planning commission were to recommend to the board that the settlement agreement be entered into not until the site development plan was done, I think that would be fine. CHAIRMAN STRAIN: That's what I thought we were proposmg. MR. KLATZKOW: But by changing the language, that's not what the offer was. And so the board might want to get into the settlement agreement before the site development plans are finished. That's the way it originally worked. There were contingencies involved and that's what the deal was. Now, it's been a year and they're farther along with their site development plan since then, but what you're going about, it's a good direction, but it's a different direction than what the board did. MR. SCHMITT: That's a good point. We may not have to change the language, we just have to -- CHAIRMAN STRAIN: Make a recommendation-- MR. SCHMITT: -- based on your recommendation that the -- when we say the settlement is contingent upon three site development plans, the approval of the three plans, the approval will be -- it's the Page 29 December 13,2007 planning commission's recommendation that that be at least at the stage of the pre-approval letters being issued. And I know the applicant is working towards that. Mr. Y ovanovich is correct, the Lodge Abbott team is certainly working hard to get to that stage. CHAIRMAN STRAIN: But the item that I've showed the concern about in my item two would be resolved by that kind of a recommendation, and that's where I was trying to go. And it seems like a recommendation that the parties can accept, so that's one that we can feel confident we can recommend to the BCC if there's no other concerns from this panel. Ms. Caron, did you have something you wanted to add? COMMISSIONER CARON: No, I just wanted to say, I think this is a valid point. I think what we're going to end up doing is submitting a list, much as you've submitted this list, of our recommendations to the BCC and then they can send it back for legal and -- CHAIRMAN STRAIN: That's what I started drafting this for is that it would eventually roll into a recommendation list. Okay. Well, then let's move on. Mr. Schiffer? COMMISSIONER SCHIFFER: Mark, somewhere along the line we're going to talk about the design of the building and some of that SDP data? When would-- CHAIRMAN STRAIN: Well, there's paragraphs specific to that in here, when we get to the setback paragraph, for example, that would be one of them. Now, as far as the design of the building goes, we would discuss it in relationship to the setbacks not to the what you would design if you were the architect type thing. COMMISSIONER SCHIFFER: You wouldn't want that. This is better than that. But I do have some questions, obviously, that aren't just in that paragraph 10, but I'll wait until 1 O. Page 30 December 13,2007 CHAIRMAN STRAIN: I like to move through in order, because it keeps us on focus. Paragraph three, the same paragraph on the same page also refers to docks. The problem I had in reading that is there is nothing in these SDP's that I've seen to date that have docks on them. So why are we referencing them in this sentence? MR. YOV ANOVICH: Can I tell you why? Or you can, Ms. Caron, if you want. CHAIRMAN STRAIN: Ms. Caron, go ahead if you want to explain that. COMMISSIONER CARON: Well, I think the only reason that they're being referenced is that in documents that back up this agreement, there are references to docks all throughout them. And these -- those documents are going to be attached. For example, in-- and I don't know because I haven't read this revised bald eagle management plan, but there were references in the bald eagle management plan, there are references in letters of authorization from U.S. Fish & Wildlife or the Army Corps. I mean, there have been references to docks all throughout these documents. CHAIRMAN STRAIN: Right. And I've read the document and I know exactly what you're saying. But that's not what this sentence says. It says the parties also agree that a rejection of any of these SDP's relating in any way to docks. The SDP's can't be rejected in any way relating to docks because there are no docks on the SDP's. So that to me brings up another issue that these SDP's could be construed to be something they aren't. If the docks aren't on there, I don't think we should be even referencing them in relation to those SDP's. I think that would be opening a door that doesn't need to be opened. COMMISSIONER CARON: But we haven't seen the latest SDP's. I'm assuming that you're correct and they are not on there. MR. YOV ANOVICH: Well, the version you should have, which Page 3 1 December 13, 2007 is the last version, the docks were removed. CHAIRMAN STRAIN: Mr. Murray, did you have a comment? COMMISSIONER MURRAY: No, no. MR. YOV ANOVICH: I agree that this sentence is not necessary, but it's been one of those things, to try to keep the Conservancy happy we've been saying we're not getting any docks approved. CHAIRMAN STRAIN: Well, I think the docks are a completely separate issue. I think by even referencing them in the same language of an SDP you're going to bring them into the SDP just by the reference, and we shouldn't be doing that. And also, the docks, when they do go on -- go ahead, Mr. Kolflat. COMMISSIONER KOLFLAT: Mark, in the PUD on Page 4.2, there is a reference for use of boat and canoe docks. Now, that would not be consistent with what you're saying if that stays there. Should that be deleted then from the PUD? CHAIRMAN STRAIN: No, no, no, we're not talking about the PUD, we're talking about the SDP's. They're not the same document. The SDP is the application based on blueprints, Tor, that the county gets that actually goes to the buildability of the property. The PUD is the concept document that tells them how they can build it. The SDP's implement it. COMMISSIONER KOLFLA T: So there's no conflict then by this statement here? CHAIRMAN STRAIN: No, their PUD is a separate document. The other item is that if docks should be applied for, and if we were to leave this in, I would suggest then that they would have to be applied for in a separate and new SDP, and that they can't be utilized as an amendment to an existing SDP. But if this document is -- this paragraph comes out, there's probably no need then to reference docks at all. Mr. Murray? COMMISSIONER MURRAY: Mark, I thought that the state Page 32 December 13, 2007 turned down the docks. CHAIRMAN STRAIN: No, just the opposite. The Corps permit that you have actually accepts the docks. COMMISSIONER MURRAY: Yeah, but I thought that there was just a -- CHAIRMAN STRAIN: That was The Dunes. COMMISSIONER MURRAY: I'm sorry, here I am thinking it was that. MR. YOV ANOVICH: Can I ask one other question as I'm making notes on the document? CHAIRMAN STRAIN: You've got the same reference in the document I just supplied you with. MR. YOV ANOVICH: I know. I'm going to take that -- I want to know who's responsible for editing this document based upon the discussions today. CHAIRMAN STRAIN: I think Mr. Klatzkow is accurate, no one's going to edit it. We're simply going to recommend changes to it, and the BCC can either accept or reject our changes. I don't think we're here to demand editing or -- I'm looking for compromises. So our recommendations can go forward with some kind of emphasis that we've reached some kind of agreement with you all that they could endorse. Is that what you were going to say, Mr. Klatzkow? Okay. So as far as the recommendation from this panel, deleting the underlined sentence that was added relating to docks, does anybody have a problem with that? (No response.) CHAIRMAN STRAIN: Okay. MR. SCHMITT: For clarification, Mr. Chairman, you want to eliminate that entire sentence that's underlined? CHAIRMAN STRAIN: Right. I think that's the consensus. Okay, on the same page, it starts with paragraph four on the Page 33 December 13,2007 bottom. This talks about expedited review. And it says for all future building permits and for any subsequent purchasers of the property. Now, there's going to be, I don't know, 590 purchasers of this property. They're all going to want to remodel their units and put in new flooring and change out their cabinets and do things like that. So we're going to have expedited permits for 590 people? That's why I suggested this language be narrowed down to mean whatever it means. And I'm not sure this project even qualifies for expedited permitting, other than the fact it's coming through under a Bert Harris claim. And to be honest with you, Richard, I'm not sure that it gets you anything. MR. YOV ANOVICH: Being expedited? CHAIRMAN STRAIN: Right. MR. YOV ANOVICH: Well, I'll keep it to myself. CHAIRMAN STRAIN: I certainly don't agree with the way it's written, because it's far too encompassing. MR. YOV ANOVICH: As we talked about, the intent was it would be for the -- well, the SDP's. And I think we were talking about the residential buildings themselves and not the individual remodeling permits. I didn't -- I understand how you reached the conclusion that it could mean that, but it was never the intent. CHAIRMAN STRAIN: Okay, then, so that we could recommend some suggested language to clean it up, did you have any suggestions? MR. YOV ANOVICH: I thought your list was going to do that. CHAIRMAN STRAIN: You thought my list was going to make suggestions? MR. YOV ANOVICH: I thought it had, but I guess it doesn't. CHAIRMAN STRAIN: I like my list, it says you don't qualify for expedited review, so that means we can cross -- suggest a recommendation to remove paragraph four, right? MR. YOV ANOVICH: I haven't had a chance to review your list. Page 34 December 13,2007 I thought based on our discussion that it might propose a suggestion regarding the permits. I didn't realize it talked about deleting the reference -- do we care at this point? The answer to the question is we'd like to leave it in for the residential building towers and the clubhouse and other associated buildings. The SDP really has taken care of itself, since you're now recommending that they be companion documents that go to the board. CHAIRMAN STRAIN: So if we were to change the -- provide a recommendation to the BCC that the language here be changed to reference the specific permits that we're talking about and not the all-encompassing permits it seems to reference, that would be okay -- MR. YOV ANOVICH: Yes, that'd be fine with us. MR. SCHMITT: How about words to the effect of the review of the related five residential building permit -- residential buildings and clubhouse permits or something to that effect? CHAIRMAN STRAIN: Well, I think our recommendation is simply going to be to suggest that we get more specific with the permit language, and maybe staff -- between now and the BCC meeting I can get with staff and we can figure out what that could be. That paragraph continues on the next page. Ms. Caron? COMMISSIONER CARON: No, go ahead if you're going to get into the next sentence. CHAIRMAN STRAIN: Paragraph on Page 2 to three. Same paragraph, it just continues on the top. It says the EIS need not be amended unless the SDP's are substantially amended. Then it says, in this instance a substantial amendment shall mean any increase in wetland impacts beyond the impact. What concerned me there is that you could contrive this to mean that the only time an SDP has a substantial amendment is when it has more than five percent impact on wetlands. And I don't believe that was the intent, but I would want to make it explicitly clear that wasn't Page 35 December 13, 2007 the intent, because there are many that triggers, and I've included them in this sheet, that trigger an SDP amendment or a substantial change. I don't want that process subverted because of an interpretation of that last sentence of paragraph four. MR. YOV ANOVICH: Well, I think if we add the following words after in this instance a substantial amendment, we add the words to the EIS shall mean. Because that was what was intended, and that is -- CHAIRMAN STRAIN: I think that works fine. Anybody have any objection to that on the panel? (No response.) CHAIRMAN STRAIN: Okay. MR. SCHMITT: Where is that word at, again, EIS? CHAIRMAN STRAIN: To the EIS. It would be after the word -- in the last sentence it says in this instance a substantial amendment. Then you would include to the EIS shall mean. And then we're off and running with that one. Before I go into the rest on my list, does anybody have any issues on Page 3 outside the list? We'll just work our way down, if that works. Ms. Caron? COMMISSIONER CARON: Yeah, on Page 3, in six, there are -- there's conflicting language here. One says that these monies are for corridor improvements, and the other specifically says they're for bridge enhancements. I think that needs to be fixed and clarified. Also, there is a $5,500,000 figure here for Vanderbilt bridge enhancements that triggers whether or not the applicant would have to pay for any other contributions that the county would normally reqUIre. Well, the 5,500,000, I don't know where that figure came from. FDOT sent the neighborhood a letter saying that their project wasn't going to exceed five million dollars. So I think we're establishing a Page 36 December 13, 2007 threshold where they may be able to get out of requirements to pay additional sums over this $3 million commitment by having that figure specified. CHAIRMAN STRAIN: And I -- in the item number seven, the second paragraph, I refer to that issue. Because exactly the same reason Ms. Caron pointed out, the DOT is building the first bridge. There are two smaller bridges south of the first bridge that Collier County is modifying. I have the plans on all three bridges. And what I'm concerned about is where it says all parties it needs to include not just Collier County and the applicant's contributions but also those contributions paid for by the DOT so that we get to that 5.5 million quickly. The DOT's money counts, there's nearly five million there. The bridge improvements that Collier County is doing to the south two bridges, I'm sure they're expensive enough. And then if we leave the reference for the entire corridor, as Ms. Caron has suggested, that gets the enhancements to where they might be really getting to 5.5 million. Go ahead, Nick. MR. CASALANGUIDA: For the record, Nick Casalanguida with Transportation Planning. I came into the settlement late. It was handled by the staff, and so about six months ago I started picking up on this. I did a little research with DOT. The county has an agreement with DOT to fund part of the bridge that's being replaced. That $3 million will more than cover the county's portion of that. So the remaining excess would be used for corridor improvements. Whereas they provided an Exhibit 4 that shows a multi-use path along their property, anything remaining above what's required for the county to put into the bridge improvement. We're looking at funding a complete pathway system on Vanderbilt Drive with that additional money. I don't know why they kept referencing 5.5 and asking for Page 37 December 13,2007 additional impacts, you know, funds above that when it was spent. I can't see where that threshold will come in. CHAIRMAN STRAIN: You said they. Who do you think is asking for that -- MR. CASALANGUIDA: I don't know, it was in the agreement when I reviewed it originally. MR. YOV ANOVICH: At the risk of -- let me tell you where this kind of all came from. We had agreed to fund $3 million to bridge enhancements. And if our money plus what DOT had committed was not enough to pay for bridge enhancements, we would frontload our road impact fees. We never agreed to pay for corridor improvements, we agreed to pay for bridge enhancements. Now the county, when they reviewed this paragraph, said we need to be a little bit flexible on how we word this for budgetary reasons. And we said fine, but we need to make it clear that our obligation to kick in for bridge enhancements doesn't occur until 5.5 million has been accounted for, of which our three million was part of it. But it's bridge enhancements. If you want to go back to the original history of this document, we had put in specific bridge numbers to make it clear. But the county said we needed a little bit more flexibility. We don't have a problem with bridge enhancements. Weare not going to get stuck with the county saying, you know what, we got all these ideas for Vanderbilt Drive as far as the corridor goes, we've spent $5.5 million, pony up your road impact fees. I just want to make sure that that word corridor, the genesis of that statement, where it came from. CHAIRMAN STRAIN: Wait a minute. Before we -- you're already committed to putting up the three million, that's going to happen no matter what. What the issue is, is that above -- there's another time frame that could kick in an early payment of impact fees. But the argument is does the 5.5 million expenditure kicks that Page 38 December 13,2007 in? So how do we get to the 5.5 million expenditure? That's the issue. The DOT is doing the first bridge, that's $5 million. Apparently they've already notified the neighborhood that's what it's going to cost. Nick, the county's doing the second two bridges. We know they're putting catwalks on the west side of both bridges. I don't know what those cost. I've seen the plans. It's pretty extensive work. Is that a half million dollars of work? MR. CASALANGUIDA: It's less than that. That additional -- the first part of that paragraph should read as it does, three million for the county for Vanderbilt Drive corridor improvements and bridge enhancements. That covers everything that we need to do, which is our commitments back to DOT for the large bridge and any additional pathway improvements you want to do on that corridor. That threshold for the 5.5 million you're bringing up right now and discussing, since I came into this about six months ago, I don't have a problem with that, if you were going to even modify that even further, because I don't think we're going to get to that threshold where I'm looking at the frontload impact fees. It's probably not going to serve my purpose. These buildings, when they come in, they pay one-half up front, so there's nothing that stops them or restricts them from paying impact fees. So I don't have any concern with that additional 5.5 threshold. I just want that first sentence to stay the same. CHAIRMAN STRAIN: So number six, you're comfortable with paragraph number six. You're getting $3 million as a contribution to the county that's outside impact fees. And if you don't get any more than the 50 percent impact fees up front at the time of SDP, you're still content? MR. CASALANGUIDA: Yes. CHAIRMAN STRAIN: Then paragraph six is almost irrelevant at this point. Does anybody have any suggestions that paragraph six needs any Page 39 December 13, 2007 changes in for any enhancements that basically transportation doesn't have an immediate need for other than the normal process? (No response.) CHAIRMAN STRAIN: Okay, then we won't mess with paragraph six. With the exception, the first part of paragraph six references the word latter to the three SDP's. I'm assuming that that language will be recommended to be effective similar to the language we talked about changing in paragraph two, or paragraph three in the approval process. Basically it's a pre-application letter that's received. MR. KLATZKOW: May I suggest we just make it 15 days after the execution of the settlement agreement? CHAIRMAN STRAIN: That works for me. Richard? A settlement agreement can't occur until the pre-approval letter is issued anyway, so it comes out to about the same timing. Richard, this is a better deal for you. Here's why: You've got three SDP's that are going to be approved by a pre-application letter, at which time the settlement agreement goes into effect. If you were to fall on this particular one, it would be 15 days after the three SDP's are approved. In this case, it's going to be 15 days after the settlement agreement. Probably will give you more time. So why would you have an objection to it? MR. YOV ANOVICH: How would it give me more time? I don't get -- again, let's put dates in there because it's easier for me. We go to the Board of County Commissioners. I don't know even know if it's a Tuesday, I'm just picking it, January 15th, that's when the settlement is approved. CHAIRMAN STRAIN: Right. MR. YOV ANOVICH: Fifteen days from that date I've got to pay $3 million. However, I may not get my final letter from the county for three or four more days later. CHAIRMAN STRAIN: But you're going to get your Page 40 December 13,2007 pre-approved letter, which is only contingent on the settlement agreement, so they all snap together. I don't know what is hurting you in that regard. MR. YOV ANOVICH: Okay. CHAIRMAN STRAIN: Okay. I know what you're saying okay to and I'll make sure it's written up -- MS. ISTENES: Can I ask for clarification? CHAIRMAN STRAIN: Yes, go ahead, Susan. MS. ISTENES: I'm not quite sure I understood what you all agreed to. Could you just clarify it for me? CHAIRMAN STRAIN: It previously said that the payment for the three million will be done at the latter of the three SDP's. We're suggesting it matches sequencing that we previously discussed when we discussed the corrections to the word latter or contingent in paragraph three. Basically it's when the pre-approval letter is received, the settlement agreement then gets eventually scheduled for execution and it gets done by the Board of County Commissioners. And it's 15 days after that settlement agreement that the three million is due. Richard? MR. YOV ANOVICH: Can I tell you why that may be an issue? Only what if I get to the Board of County Commissioners and they make a change to some of the terms in the settlement agreement, which means I now have got to go make a change to my SDP. I've got a settlement agreement that's going to require me to pay $3 million within 15 days but yet I won't have a -- I may have my pre-approval letter, but something could happen, I don't know what, but something could happen to cause me to have to make a change to the SDP. CHAIRMAN STRAIN: See, your settlement agreement then, if they accept the recommendation and it's contingent on the pre-approval letter of the SDP's, you're saying the changes that would come out would not trigger a new pre-approval letter? Page 41 December 13, 2007 MR. YOV ANOVICH: It may trigger a new pre-approval letter. CHAIRMAN STRAIN: Well, then the settlement agreement isn't effective. MS. ISTENES: Would trigger an amendment. You're going to have an approved SDP. Once it's approved -- I mean, there's kind of a little gray area there. You've got to pay your fees and then you'll get your final approval letter. But if something changes, then it's an amendment. CHAIRMAN STRAIN: Jeff, you stirred the pot. You got a better idea? Or an idea that kind of comes in the middle? MR. KLATZKOW: I think your idea was best, making this a complete package for the board, final site development plans, final agreement, everything gets tied up in a bow and we're done. In which case you would do 15 days from settlement agreement. Mr. Y ovanovich's concern is what if the board throws a curve ball, suggests a bunch of other changes be made, which makes him to go back? I don't have an answer to that. CHAIRMAN STRAIN: Maybe it could be within 15 days of the settlement agreement subject to any amendment that would result to an SDP as the result of the settlement agreement. Then it would be 15 days from the end of the correction of the amendment. MR. YOV ANOVICH: Which is exactly what it says. That's what it says. CHAIRMAN STRAIN: Latter of the three SDP's. MR. YOV ANOVICH: Right, which, you know -- for instance, let's say instead of a 10- foot sidewalk they want a nine-foot sidewalk, so we have to go make a document change. It could take -- you would hope that that would be boom, through the process quickly, no issues. I just would hate to find out that an issue was created. CHAIRMAN STRAIN: Then Richard, we're back to the original argument that started the first discussion on the paragraph, that the latter of the three SDP's does not work because that could be stretched Page 42 December 13,2007 out then if someone so intended for an undefinable amount of time. And that's why it doesn't work. MR. YOV ANOVICH: Keep in mind, we're going to not go to the Board of County Commissioners until we have the pre-approval letter. The only way we wouldn't get to the next step, which we've said we're willing to do, is if someone at the BCC level changes a term that we relied on to get our pre-approval letter. I'm just -- I hear what you're saying, Mr. Strain, but we're willing to dot all the I's, cross all the T's, then go to the board for a settlement agreement and 15 days later we'll make you a $3 million payment because I'll have my pre-approval letter. But if something changes, I don't want to be in a situation where the text of the document says I owe you $3 million within 15 days of approval, and then I've got to go back and change my SDP, which may take-- MR. KLATZKOW: Then don't sign the settlement agreement, Rich. MR. SCHMITT: Approval is contingent upon the settlement agreement. MR. KLATZKOW: They don't have to sign the settlement agreement. CHAIRMAN STRAIN: That's a good point. Richard, if that becomes a bone of contention, just refuse to sign the settlement agreement. MR. YOV ANOVICH: All right. I mean, but -- okay. CHAIRMAN STRAIN: I still think the recommendation ought to be tighter than the word latter. And my concern is it needs to be tightened up. I'm not trying to make it harder for you, I'm just trying to make it more practical so we're not having an indefinable term out there, and that's all I'm trying to do. I mean, what's the -- anybody on this board have a different opinion? (No response.)I Page 43 December 13,2007 CHAIRMAN STRAIN: We're going to recommend that the word latter not be used and that we reference it to -- I like Mr. Klatzkow's suggestion at this point so we'll go forward with that. Okay, that takes -- anything else on Page 3? MR. SCHMITT: Can I -- Mr. Chairman, over here. CHAIRMAN STRAIN: Mr. Schmitt? MR. SCHMITT: So the wording you're asking for is within 15 days of the approval of the three SDP's? MR. KLATZKOW: No, approval of this settlement agreement. MR. SCHMITT: Of this settlement agreement. MR. YOV ANOVICH: Okay. CHAIRMAN STRAIN: Okay, there was one more on Page 3, it's paragraph seven, starts at the bottom. You're going to like this one. It's the first word, latter. We're back in the latter again. COMMISSIONER MURRAY: That was changed to last. You're not looking at the same document I'm looking at. CHAIRMAN STRAIN: Okay, well, I'm looking at the one I wrote my paper off of, which may not be exactly the -- okay, on Page 7 in one of the versions, I think it's the one from the county attorney's office that we got on Wednesday, the word latter was changed to the word last. Still has the same impact. Latter or last, but I appreciate you pointing that out. We're back to the same thing with this particular one, your sunsetting provisions. Triggering the sunsetting provisions certainly shouldn't have any concern with that starting when the settlement agreement is signed because the settlement agreement, if the board follows our recommendations, wouldn't be signed until the pre-approval letter of the SDP's is completed. Is there a concern with that, Richard? MR. YOV ANOVICH: I'm sorry, what am I -- one more time for me. CHAIRMAN STRAIN: Number seven, Page 3 has the word Page 44 December 13,2007 latter in it, again. MR. YOV ANOVICH: Right. CHAIRMAN STRAIN: Okay. Or last. MR. YOV ANOVICH: Last of the three SDP's. CHAIRMAN STRAIN: Right. What I'm suggesting is we have no control over when those SDP's are finalized because half that process is yours. Back to the same argument that in order to circumvent that issue, we would need to have the effectiveness for the sunsetting provisions start at the time the settlement agreement is signed, because at that point you've got your pre-approvals and everything else in place. MR. YOV ANOVICH: If everything works as we hope it will, that's not a problem. CHAIRMAN STRAIN: Okay. Now we're on Page 4. The top of the page had one suggested addition to the end of the paragraph. It says Lodge still shall be obligated to provide annual PUD monitoring reports. And I just want to make sure it says as required by the LDC. Do you have any objection to that? MR. SCHMITT: Mr. Chairman, I know you're moving forward, but I just want to again capture the language on paragraph seven, where it had, until the last of the three SDP's is approved. We could just strike those? CHAIRMAN STRAIN: It would be from the date of effectiveness of the settlement agreement -- of this agreement, however the legalese would be written there. MR. KLATZKOW: Actually, I think just strike the whole paragraph at that point in time. You don't need it because you're dating your PUD on approval of the site development plan, which is pretty much the same date as board approval. CHAIRMAN STRAIN: Wait a minute. PUD's date is the effective date of the PUD. I'm not sure that gets us there -- MR. YOV ANOVICH: My five-year clock. I'm worried about Page 45 December 13,2007 my five-year sunsetting clock. MR. KLA TZKOW: That's correct. So it should start then on execution of the settlement agreement. CHAIRMAN STRAIN: Right, that's what we said. MR. SCHMITT: I would recommend that you just put a period after the letters LDC. Lodge and the county agree that the Cocohatchee Bay PUD shall be exempt from the county's PUD sunsetting provisions within the LDC, period. CHAIRMAN STRAIN: No. COMMISSIONER MURRAY: No. MR. SCHMITT: Then the next sentence would say, the five-year sunsetting provisions now in effect in the LDC shall govern. Does that make sense? CHAIRMAN STRAIN: No, it doesn't. Because the five-year effectiveness would go back to the date of the PUD. We're trying to reference now a date that's not contained within the PUD. It would be the date of the effectiveness of the settlement agreement. COMMISSIONER MURRAY: Right, that's got to be the predicate. CHAIRMAN STRAIN: I think it's simple enough, Joe. We can -- it would -- MR. SCHMITT: The trigger is the settlement agreement date, then, is what you're saying? CHAIRMAN STRAIN: Yes, sir. MR. SCHMITT: We'll word it -- we'll try and word it that way. CHAIRMAN STRAIN: Now we're on paragraph four -- I mean, Page 4. Before we get into paragraph eight, nine and 10 from the paper I passed out, does anybody else have any issues they want to bring into it? Mr. Schiffer? COMMISSIONER SCHIFFER: I wouldn't mind somebody explaining with the exhibit paragraph eight. In other words, put up Page 46 December 13,2007 Exhibit 2 and -- CHAIRMAN STRAIN: The golf course exhibit with the one- fifth, one-fifth, one-fifth taken out. COMMISSIONER SCHIFFER: You can only take one-fifth out five times. So as each -- just explain it to me. I'm assuming I don't understand something. MR. YOV ANOVICH: Probably would work better, Joe, if we could flip it one way to where it's north/south. MR. SCHMITT: Then you would be geographically oriented. MR. YOV ANOVICH: Which, you know, is not my strength. MR. SCHMITT: Not your strength, right. MR. YOV ANOVICH: Don't lose that arrow. COMMISSIONER VIGLIOTTI: Directionally challenged? MR. YOV ANOVICH: As you've pointed out a couple of times COMMISSIONER VIGLIOTTI: In addition to vertically challenged -- MR. YOV ANOVICH: Vertically challenged as well. The way this works, Mr. Schiffer, as each building permit for a residential tower is received, a deed restriction is placed on the property on the west -- I'm sorry, see? The east side of Vanderbilt Drive. When the fifth -- ultimately when the fifth tower, the permit for the fifth tower is issued, the entire east side of the property will have that deed restriction on it. That's how this works. COMMISSIONER SCHIFFER: And the deed restriction provides for -- MR. YOV ANOVICH: It would be a golf course. And if the golf course ever stops, it's got the uses that are allowed in the preserve district. COMMISSIONER MURRAY: I have a question on that. COMMISSIONER SCHIFFER: And the ownership of it would be -- Page 47 December 13,2007 CHAIRMAN STRAIN: Bob, I've got to ask again, all members, please wait to be recognized before you speak. And so Mr. Schiffer, why don't you finish. MR. YOV ANOVICH: And we should add that the beneficiary of this deed restriction is the county. So ifthere's any change, if there's a need to change the deed restriction, the county would have to bless the change or just say no. CHAIRMAN STRAIN: That's one of the questions we'll be getting into. Mr. Schiffer, does that answer your question? COMMISSIONER SCHIFFER: That's it, I'm done. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I have a question for Marjorie or Mr. Klatzkow. The word perpetuity in this case represents what I've now come to understand perpetuity, is about 30 years or so. Or is this a conservation easement that really does effectively create perpetuity as we -- MR. KLATZKOW: It's as long as we can legally get. COMMISSIONER MURRAY: Okay. So, in other words, whatever conditions apply at a given time and -- okay, thank you. CHAIRMAN STRAIN: Forever and ever. COMMISSIONER MURRAY: Well, until? CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Area one that's been -- why is area one excluded? It's part of the golf course property. MR. YOV ANOVICH: It is. That's the first area that gets the deed restriction. COMMISSIONER CARON: Okay, that's in one. MR. YOV ANOVICH: We worked our way from the north to the south. COMMISSIONER CARON: It didn't have the same -- what if -- there's nothing in this agreement that would prevent them ahead of Page 48 December 13,2007 time from selling off this piece of property, correct? Building five towers and selling the property? MS. STUDENT-STIRLING: That could be. But if the deed restrictions is recorded in favor of the county, it should run with the land. COMMISSIONER CARON: Okay. And do we need -- should we have a conservation easement as well over this? MR. SCHMITT: I'll answer. And I may need Bill or Barbara. If it's a conservation easement, that was part of the problem we had when we discussed the settlement agreement. The conservation easement is much more restrictive, basically, would not allow a golf course. And we're going to get into the next piece with Mr. Strain's discussion, I know, about green open space. That was the problem, we want to put it in some kind of preservation, but if we did a conservation easement it would have to be passive recreation. Golf course does not qualify. So we have to kind of invent something different. Is that correct, Bill? Yep. COMMISSIONER CARON: But is this not -- does that not only kick in if there's a failure of this golf course, or if they decide they don't want a golf course? MR. SCHMITT: No-- COMMISSIONER CARON: Sure it does. This is a settlement agreement, remember, this isn't -- MR. SCHMITT: Well, that's, I think, the next thing we're going to -- we talked about it would either be a golf course or remain green open space. Now, the difficulty becomes what does that word mean? Could that be horse stables, could that be a shooting range, could that -- so those -- MR. YOV ANOVICH: Okay, if everybody will look at what the Page 49 December 13,2007 PUD document says, the default provisions in the PUD document would kick in. Here are the uses that would be allowed on that property: Passive parks, passive recreational areas, boardwalks, biking, hiking and nature trails, golf cart paths as permitted in the preserve -- we wouldn't have that because the golf course has gone away -- wildlife sanctuary pathways and/or bridges, recreational shelters or preserve areas -- CHAIRMAN STRAIN: Richard, the issue is going to be what is a passive recreational area. That is the issue. There's no definition that I know of for that. And people can opine that that could be anything from a horse stall to a firing range, possibly. What is a passive recreational area? MR. YOV ANOVICH: I don't know, but I would think even I would have a hard time arguing that the shooting of a gun is a passive recreational use. CHAIRMAN STRAIN: I've heard you argue some absurd things, Richard, so I wouldn't put it past you. COMMISSIONER CARON: But we have him on record now, it will not be a shooting range. CHAIRMAN STRAIN: And Ms. Caron's point is well taken, and it's one that I brought up with staff as well. We don't have a definition, so I really would think that there needs to be something here as to the extent of what a passive use is. And maybe it's based on a generation of noise or activity, I don't know. But they could be worse off than a golf course. And I'm surely thinking that's not what the people in the neighborhood are intending by this imposition, so -- Ms. Caron, did you have something else you wanted to -- COMMISSIONER CARON: I was waiting to hear the response from -- MR. YOV ANOVICH: Well, apparently we're coming back in January, so perhaps we could work on a definition of passive Page 50 December 13,2007 recreation. I'm not prepared to tell you what that is today. CHAIRMAN STRAIN: That might be a good solution. Let Ms. Caron finish first, then Brad. COMMISSIONER CARON: My next question has to do with the two residential units. Right now there is no acreage for those two units. So essentially what could happen on these acres is you could divide the property in half and say this is my home site and this is my home site and the green space that everybody wants, you know, goes away. I mean, because then you would be able to build your residence and your horse stalls and your whatever else you wanted using this entire property. Now, again, it's not something I anticipate to happen. However, I have heard you on many occasions say that the golf course industry ain't what it used to be. So the goal of the community I know was to protect this piece of property. MR. YOV ANOVICH: I think the goal of the community was that it would be open space. COMMISSIONER CARON: Right. Can we establish-- MR. YOV ANOVICH: I don't think the goal of the community-- COMMISSIONER CARON: -- establish some acreage? CHAIRMAN STRAIN: One at a time. You both can't talk at the same time. COMMISSIONER CARON: Okay, good. CHAIRMAN STRAIN: Richard is going to have to repeat it for the record, because he's the one speaking here today. So what was the comment? When we come back in January to review against the SDP we'll get a refinement to this paragraph? MR. YOV ANOVICH: We'll talk about what a lot size, maximum lot size for a residence would be. CHAIRMAN STRAIN: Does that work for you? COMMISSIONER CARON: Uh-huh. Page 51 December 13,2007 CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Rich, let's say we build four towers, we don't build a fifth. Does that area five still -- what happens to that? That's available for development of something else then, correct? MR. YOV ANOVICH: As golf course. That's what the PUD master plan shows it is. COMMISSIONER SCHIFFER: It could be sold to somebody else and they could -- MR. YOV ANOVICH: Sorry? COMMISSIONER SCHIFFER: Somebody else could buy, come into the commission for a change of use, correct? MR. YOV ANOVICH: Yes. Somebody could come in and try to rezone the property. COMMISSIONER SCHIFFER: Would there be a problem renumbering this where five becomes one and you reverse the numbering? MR. YOV ANOVICH: Well, one, it's closer to our residential neighbors, which provides them added protection. And we've got a long project that's going to be five buildings long and subject to potential challenges and to -- there would be -- this protects the neighbors and also protects us from someone coming after us first thing after we get our first building and attacking the last four buildings, because we really don't have anything left from a development standpoint, golf course-wise, ifthere's a challenge and we can't get any more building permits. COMMISSIONER SCHIFFER: Okay, so in other words you do need the area that -- in case you had to bailout some way you'd have some land. MR. YOV ANOVICH: It was not for our bail-out. It was for, one, start nearest the residences and start the green area protection and work our way away from them so they're getting more and more of a Page 52 December 13, 2007 buffer. But also protects us from in case someone after building permit number one comes in and files a challenge and we lose building permits three, four and five for some reason that I can't think of, we lose those buildings. We don't have the ability to build the golf course we wanted. We'd have one tower, it doesn't really support a golf course use now on that property. It worked mutually beneficial. COMMISSIONER SCHIFFER: And what would you do with the property in that circumstance then? MR. YOV ANOVICH: Right now the master plan says that's a golf course tract. I'd have to go through a public hearing process to change it to any other use. And you know, those are pretty easy to get through. COMMISSIONER SCHIFFER: What about what if you kept area one and you called five two, and then you redid the numbering? MR. YOV ANOVICH: We worked it out with the neighbors, this is what went through the process, this protects them, and we -- because you'd be pushing an amendment closer to the neighbors, which I know would be -- COMMISSIONER SCHIFFER: Okay. I mean, the only problem you'd ever have with the neighbors is -- okay, let it go. CHAIRMAN STRAIN: Thank you. We're going to take a break till 10: 15. But before we do, I'd like to let the public know that this meeting can only go on to 12:00 today. We have not even started to scratch the surface of this document. It will take a lot more time than we have today. For the benefit of the public that's here, starting at 11 :00 I would entertain that anybody that wants to speak can come up and talk and let us know your concerns so that at least you get some time in at this particular meeting that we can then think about before the next meeting. So right now we'll take a break till 1 0: 15 and come back at that Page 53 December 13,2007 time. Thank you. (Recess.) CHAIRMAN STRAIN: Okay, if everybody will resume their seats, we'll continue with our meeting. And when we took a break, we left off on Page 4 and paragraph eight. Brad had finished his comments. Were there any comments from the other planning commission members before we walk through the paragraph that's on my sheet? (No response.) CHAIRMAN STRAIN: Okay, paragraph eight on Page 4, the first sentence refers to a certificate of occupancy as the trigger for the recorded covenants. These buildings, especially high-rise building, is usually permitted in a series of permits, so you can get a series ofC.O.'s. And sometimes you get what are T.C.O.'s, temporary certificates of occupancy. Now, you could even hold off and get a c.o. in the penthouse late in order to avoid some delays in getting these restrictive covenants put in place. My suggestion is that it would occur -- it receives the first certificate of occupancy or temporary certificate of occupancy for each condominium building, okay? COMMISSIONER MURRAY: Receives the first? CHAIRMAN STRAIN: The first. Now, Richard, you started to answer the question, or you partially answered the question that comes up next and that is the restrictive covenant and who is the beneficiary. You said the county. Now, I'm a little comfortable with that but I'm a little uncomfortable. And here's why. Politics is the county. The five people that are on this board may not be the five people that are there four years from now or two years or five years or six years. Which means the restricted covenants then could be changed by approval from the political process. And I'm not sure that the neighborhood Page 54 December 13, 2007 needs to want to go through that each time. And I didn't know that's where you were intending to put these when I wrote out my paper. But I would also think besides the county, as other documents of this magnitude have been written in Collier County, there are other organizations named. And I'm not suggesting the neighborhood, because that could change, too. But I'm suggesting an agency like The Conservancy, or an organization like The Conservancy as an additionally named holder of these restrictive covenants. The intent is not to change it. And you didn't think you were going to be able to change it through the holding of it by a public entity like Collier County. There should be no concern over having an entity like The Conservancy holding these as well. Do you have any objection to that? Jeff, if you have another suggestion? I want to make sure we don't get lost in the political process in the future is my only concern. MR. KLATZKOW: Sometimes we also give it to the state as well. But if you don't trust the county, I'm not sure you can trust the state either. CHAIRMAN STRAIN: It's not a matter of trust. If it was the five Commissioner -- MR. KLATZKOW: I know exactly what you're saying. CHAIRMAN STRAIN: Yeah, if we had the five commissioners we currently have, that would be fine. They make decisions that are consistent somewhat, but I'm not sure what the future holds. Richard? MR. YOV ANOVICH: We think that it's appropriate for the county to be in charge of this deed restriction. They are the elected officials, they are to be making public policy decisions. If they deem it's appropriate through the public hearing process to make a change, we think that's appropriate. Other groups may have limited desires and may not be looking at the overall public benefit. And you would be essentially giving them Page 55 December 13,2007 veto power to any change. No matter how much sense it may mean from a public policy perspective, they could have ultimate veto power and say we don't care what's the best result for the public, we've decided no. And we don't have an agency that we're comfortable that will have that overall county-wide as well as local residence concern. And I think the Board of County Commissioners are elected to make those decisions and they're the appropriate people to make those decisions. CHAIRMAN STRAIN: Do you think that this restrictive covenant is being suggested to provide a benefit to the overall community or do you think it's to provide a benefit to the local community? MR. YOV ANOVICH: There's a local commissioner who will be looking at any potential changes and will give input as to whether or not there should be a change to the restrictive covenant or not. Frankly I don't think it's going to be an easy thing to change politically once it starts getting recorded. But I would think that we don't want to have some other entity with veto power if there's an appropriate change. CHAIRMAN STRAIN: Jeff, how many votes on the Board of County Commissioners would it take to change a restrictive covenant such as this? MR. KLATZKOW: It would be three. MS. STUDENT -STIRLING: I would think three. CHAIRMAN STRAIN: That sure makes it a lot easier to change, Richard. MR. YOV ANOVICH: Well then we'll stipulate four. We'll stipulate a super majority of the Board of County Commissioners. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I personally think the County Commissioners would be the most -- the best group to use, rather than small other groups. Page 56 December 13,2007 CHAIRMAN STRAIN: I didn't suggest a smaller group, but go ahead, Ms. Caron. COMMISSIONER CARON: Well, the simple fact of the matter is that this is our recommendations to the board. So we can put that recommendation in there. If the board decides to change it they can do that. CHAIRMAN STRAIN: Right. And I agree with you. And that's where we can ultimately head. I was just trying to find a compromise that wouldn't have to be into a long-winded dispute at the BCC level. So that's the only reason I suggested bringing it up now. I still believe another entity besides the Board of County Commissioners ought to be there. Your suggestion of 4-1 is a better alternative, I agree, than the 3-2. So that could be something this board might want to consider as a recommendation as well. Go ahead, Mr. Klatzkow. MR. KLA TZKOW: Let me just -- you know, I hate thinking on my feet, but -- CHAIRMAN STRAIN: You're sitting down, Mr. Klatzkow. MR. KLATZKOW: Yeah. Well, sort of. CHAIRMAN STRAIN: You're thinking on your what then? MR. KLATZKOW: When you think on that, it's even worse than your feet. Maybe the recommendation would be a unanimous vote by the Board of County Commissioners, or a super majority, just to change the -- CHAIRMAN STRAIN: Well, a super majority was offered by Richard already. That would be a 4-1. And I think that's a viable suggestion to consider for this panel. And now that it's on the table and we've basically heard a few -- COMMISSIONER MURRAY: I would accept. COMMISSIONER ADELSTEIN: I would accept. COMMISSIONER VIGLIOTTI: I would accept. Page 57 December 13,2007 CHAIRMAN STRAIN: Whoa, whoa, whoa. One at a time, first of all. COMMISSIONER MURRAY: That's what I would -- CHAIRMAN STRAIN: Mr. Vigliotti, then Mr. -- then we'll go right down the chain. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: As I said, I think the commissioners should do it and a super majority is fine. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: A super majority. I don't think another entity should be involved. CHAIRMAN STRAIN: Mr. Adelstein? COMMISSIONER ADELSTEIN: Super majority. CHAIRMAN STRAIN: I think I could work with a super majority. Ms. Caron? COMMISSIONER CARON: Yeah, I can work with a super. CHAIRMAN STRAIN: Mr. Midney? COMMISSIONER MIDNEY: (Nods head affirmatively.) CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: I trust the republic. Super majority. COMMISSIONER KOLFLAT: Super majority. CHAIRMAN STRAIN: Thank you. It will be a super majority. The next item is -- it says on the third line which at the time the entire project is developed will restrict the use of the entire GC parcel. My concern there is an entire project could be developed. We have Pelican Bay with ghost density. That's still not developed in some people's minds. So I don't particularly like the reference to at the time the entire project is developed. I suggest that it would have to happen -- the restrictions would have to be effective at the time that they're put in place for the C.O. of Page 58 December 13,2007 that building would trigger it (sic). MR. YOV ANOVICH: No. CHAIRMAN STRAIN: Okay, well then -- MR. YOV ANOVICH: You're suggesting we record a restriction now on the entire property? CHAIRMAN STRAIN: No, no, the CO. No, not now. Nothing now. The property is restricted should the golf course fail. And it's going to be restricted in fifths. MR. YOV ANOVICH: Right. CHAIRMAN STRAIN: Five segments. The trigger for the five segments is now when the first certificate of occupancy is issued. Okay, so why wouldn't you want to record that restriction at that time? MR. YOV ANOVICH: We are. We have to record a one-fifth deed restriction when the C.O. is issued for each building. CHAIRMAN STRAIN: Okay, but it says-- MR. YOV ANOVICH: So at the end of the day you've got five- fifths. CHAIRMAN STRAIN: Okay, but it won't -- your sentence then bothers me. It says, at the time the entire project is developed will restrict the use of the entire GC parcel two residential units. MR. YOV ANOVICH: That language was suggested by the county attorney's office to make it clear that at the end of the day all five fifths would be recorded on the property and that entire GC parcel or that parcel would be subject to this restriction. It was just there to make it clear to the public that at the end of the day the whole thing is restricted. That sentence can come out, as far as we're concerned. That was there simply because the county attorney's office was uncomfortable with, you know, five one-fifth increments equaling five-fifths. It was just additional language. CHAIRMAN STRAIN: Well, I think you need to explain how Page 59 December 13,2007 the fifths work. But instead of at the time the entire project is developed I would suggest that what is known as the golf course parcel -- and when all five covenants are recorded, they will restrict the use of the entire GC parcel to residential units. It just clarifies at that time that this whole thing will kick in is when they're all five recorded, instead of making it appear that none of them may be effective until they're all recorded. Is that -- MR. YOV ANOVICH: It's another way of saying it. CHAIRMAN STRAIN: Okay, in the same paragraph we now get into the issue of green open space. And I think -- I heard the suggestion earlier, this one combined with the passive reference in paragraph 5.3 of the PUD, you'll come back at our meeting in January and provide some definition to those two issues? MR. YOV ANOVICH: Take the word green off. CHAIRMAN STRAIN: Well, no, because open space is wider than that then. Now you're opening it up instead of tightening it down. MR. YOV ANOVICH: Wait a minute. Remember, at the end of the day the uses are those limited to what's in the PUD document, okay? So it's either a golf course or what's in the preserve district. And we're going to come back and define passive. So we don't need the word green anymore, because we're taking care of it through defining the word passive. CHAIRMAN STRAIN: As long as when you come back we agree. W e'llleave that issue in this paragraph until you come back then. Anything else, Ms. Caron? COMMISSIONER CARON: No, everything's -- CHAIRMAN STRAIN: Okay. On --let's see, the next paragraph is paragraph nine on Page 4. This one I understand is cleared up. Although, and the reason I have still noted is because I do not have an Exhibit 4, and I still do not want to define that. Page 60 December 13,2007 Apparently it's been e-mailed. Ms. Caron? COMMISSIONER CARON: I just wanted to say that Exhibit 4 is the sidewalk. Mr. Y ovanovich, that sidewalk has already been constructed; is that correct? MR. YOV ANOVICH: I couldn't tell you. No. COMMISSIONER CARON: It is not? MR. YOV ANOVICH: That's what I've been told, no. COMMISSIONER CARON: Okay. CHAIRMAN STRAIN: This is a 10-foot wide pathway. So it's probably twice the width of a regular sidewalk. COMMISSIONER CARON: What he was just telling me was only the portion over the bridge where they did their golf cart path has been done, according to the pathways plan. And that's what I wanted on the record. The rest of it still needs to be done. MR. YOV ANOVICH: If you focus in, I don't know if you can see it, but you'll see down the entire -- this right here. CHAIRMAN STRAIN: Okay, that's better. MR. YOV ANOVICH: If you can see on the left side of Vanderbilt Drive you'll see that's the northern portion of it. And as Joe is working his way south, you'll see the remainder of it. That's Exhibit 4. And as you can see, that's the entire length of our property on the west side of Vanderbilt Drive. So that should work. That's the clarification that staff wanted and has approved. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Should there be consistency between the words sidewalk and pathways, or is it understood they're the same thing, which I didn't think they were? MR. YOV ANOVICH: We think they're one in the same, but if you want to change the reference from pathway to sidewalk, that's fine Page 61 December 13,2007 with us. MS. STUDENT -STIRLING: I think they should be consistent. COMMISSIONER MURRAY: Excuse me? CHAIRMAN STRAIN: Margie said she thought they should be consistent. So why don't we just use pathway wherever sidewalk is referenced. COMMISSIONER MURRAY: There are distinct differences, as I remember them being. MR. KLATZKOW: Pathway can be asphalt-- COMMISSIONER MURRAY: Yeah. MR. KLATZKOW: -- is my understanding, and sidewalks are generally concrete. COMMISSIONER MURRAY: Right. CHAIRMAN STRAIN: No problem. We'll substitute the word pathway. COMMISSIONER MURRAY: So you need to change the exhibit as well. CHAIRMAN STRAIN: Okay, on that same paragraph it talks about the commencement, and it doesn't talk about a completion. I had suggested that we should have a commencement, and I suggested the first building permit issued on the property. And what is commencement? Is it the design, the permitting or the actual construction? MS. STUDENT -STIRLING: Mr. Chairman? CHAIRMAN STRAIN: Yes, Margie? MS. STUDENT -STIRLING: I think when you read that sentence, I think it goes back to construction. But it should be cleaned. We can put construction before commence, just to clear it up. CHAIRMAN STRAIN: Okay, so the construction of the pathway, is that what you're suggesting? MS. STUDENT-STIRLING: Yes. Page 62 December 13, 2007 CHAIRMAN STRAIN: Upon issuance of the building permit for the first residential condominium. When would it be completed? MR. YOV ANOVICH: How about by C.O. of the building? CHAIRMAN STRAIN: Okay. And the building, meaning the first phase? MR. YOV ANOVICH: First residential condominium building. How about we say we commence upon the issuance of the building permit of that and we complete upon C.O. MS. STUDENT -STIRLING: Mr. Chairman? CHAIRMAN STRAIN: Yes. MS. STUDENT -STIRLING: Point of clarification. I think Mr. Y ovanovich said issuance of the C. O. for the first residential condo. I think he made the point there could be multiple C.O.'s for a given building, so wouldn't we want to say the first C.O. for the first tower, to clarify that? CHAIRMAN STRAIN: Certainly. I would agree. Anything else that you want to add? MR. YOV ANOVICH: Why don't we just, to make it simple for everybody, we'll just complete it. Let's forget about the commencement date. We'll just complete it by the issuance of the very first C.O. for building number one. So that's the critical thing is the completion, it's not a commencement. The completion. So it's just -- CHAIRMAN STRAIN: Okay, just as long as everyone understands. Ifwe have anybody in the public that's that concerned about this issue, your buildings take two years to build or so. So that means you wouldn't have a pathway started with when the building starts. You'd probably more likely start it towards the end of your building. So it would be the latter part of the two-year period in which this pathway would be completed. MR. YOV ANOVICH: Completed, yes. CHAIRMAN STRAIN: We'll see what reaction we get. I mean, Page 63 December 13,2007 anybody on this -- COMMISSIONER VIGLIOTTI: I'm fine with that. CHAIRMAN STRAIN: Okay. A little mouse over here making noise. I was wondering what all that was. Okay, we're on Page 4. I wanted to make sure we finished everything. I think we did. Now we're on Page 5. Anybody have any concerns or questions on Page 5? Ms. Caron? COMMISSIONER CARON: Yeah, number 10 involves the bald eagle management plan, so we are holding that off until the 12th; is that correct? CHAIRMAN STRAIN: The portion of that number 10 that discusses the bald eagle management plan, yes. But that also discusses the increase in height and a difference in definition of the setback requirements. Go ahead, Mr. Klatzkow. MR. KLATZKOW: We've had so many changes recently, I just want to be sure I'm not missing something. On section 10, second line, there's been a change from 17 habitable floors to 17 stories. I don't know if that changes the concern of the planning commission. CHAIRMAN STRAIN: Well, that's what we're going to get into in a minute. MR. YOV ANOVICH: And I'll tell you why we made that change. Because that's exactly how it's referenced in the PUD. The PUD references stories and not habitable floors. So we went for consistency with the PUD. CHAIRMAN STRAIN: As long as, and I mention this to you, the measurement is based upon the definition in the PUD for height. MR. YOV ANOVICH: It is. CHAIRMAN STRAIN: Because we've already -- the PUD is an old PUD but came along before anybody on this board sat here. It's Page 64 December 13,2007 basically what we have to live with. And the height, although it's defined differently than the code, and it certainly isn't a good definition of height, but it is one that is better than the words -- interjecting the word habitable, which used to be in there. Now, we're still on paragraph 10, Page 4, and it starts and finishes on Page 5. Any issues -- COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: -- further questions on Page 10? Mr. Schiffer? COMMISSIONER SCHIFFER: I do. And I guess Susan, this might be you. Susan? MS. ISTENES: Um-hum. COMMISSIONER SCHIFFER: A concern I have is they're measuring the height of the building starting with the first residential floor. COMMISSIONER MURRAY: Yeah. COMMISSIONER SCHIFFER: Typically the lower level, which is below the FEMA is definitely all parking. There will be minor things allowed in there. Essentially not habitable things. They show storage, which you've got to be careful because that could be flooded. But the next level which they're calling the second floor, they show it as parking, but the drawing that I saw that showed it as parking didn't show the stairways and the elevators going through that level. If they would, they would be in the drive lane. So on the SDP is there amenities shown on that level? CHAIRMAN STRAIN: I think he's asking you, Susan. MS. ISTENES: I think I'm going to have to have staff answer that. CHAIRMAN STRAIN: Before we go too far, the definition in the PUD allows them to measure not from FEMA but from first habitable floor. So they've gained an extra seven feet or eight feet Page 65 December 13,2007 almost on average right from the get-go, because the FEMA there is about 13. COMMISSIONER SCHIFFER: Yeah I think FEMA's less, I think. But my concern is that if this first floor has amenities on it, then it is a habitable level and that would be the first level. MR. YOV ANOVICH: My understanding is there's no amenities on that level other than the lobby. Right? COMMISSIONER SCHIFFER: Lobby, exercise room or amenities, that's a habitable floor. CHAIRMAN STRAIN: And an air conditioned space is a good rule of thumb for habitable area, Richard. MR. YOV ANOVICH: Sorry? CHAIRMAN STRAIN: Air conditioned space is a rule of thumb for habitable area. If you've got air conditioned space, you're most likely going to have habitable area. So if you've got air conditioned space on the floor below those elevations, it would be -- there's a good chance it's going to be considered habitable. You're looking at maybe sellable space. MR. YOV ANOVICH: We're talking about the residences. CHAIRMAN STRAIN: I know you are. I thought that's where we were gomg. MR. YOV ANOVICH: What we're talking about is when you start getting into the condominium units themselves, that's when you would start measuring. That's why I used the -- I've got to look back, because I know we've talked about this. When I -- maybe we should just, I don't know, use the residential portion of the building instead of the word habitable? CHAIRMAN STRAIN: No, Richard, you've got to use -- as a minimum for height what's shown in the PUD which is habitable finished floor elevation, which is what you did use on your PUD architectural renderings that you supplied for the SDP. Brad's asking a question that wasn't available for us to see on Page 66 December 13, 2007 those drawings. And he's simply saying that on that lower before the one you've labeled habitable, if you have any air conditioned space, basically, you do have habitable floor below that, which means you've got to change your elevation. COMMISSIONER SCHIFFER: Mark, let me continue. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: Susan, on that -- in the SDP, what is shown on that what they call the second level, the plaza level? MS. ISTENES: I'm looking at it now, and it looks like the -- well, like a lobby, yeah. Just as they describe. COMMISSIONER SCHIFFER: Do you have a drawing of the second level? MS. ISTENES: I have an elevation. COMMISSIONER SCHIFFER: We never got the second level drawing. There is one is the SDP package. It shows that level as parking. But like I said, it doesn't show the elevators and the stairs going through, which would totally block the access drive. So you couldn't be for parking. The other concern is how -- the floor plans that he shows, he shows one typical floor plan. How important is it that that be able to be built? MS. ISTENES: I'm sorry, what was your question? COMMISSIONER SCHIFFER: The one floor plan they do show, is that important in the SDP process? The reason I asked is we haven't been able to build scissor stairs in quite a while, and this one has it. And there's some remote exit issues in it. But the point is that I think the biggest question is that where's the first habitable level. The building code, all governing codes are very clear on what habitable is. It's not residential. Residential is certainly a subset. MS. ISTENES: Right. COMMISSIONER SCHIFFER: So again, my concern is this Page 67 December 13,2007 building might be a little too tall. MS. ISTENES: It sounds like the confusion might be that they're showing areas that would be required to meet FEMA and would technically be habitable by that definition but that aren't being shown as living areas, per se. You know, units. Is that your concern? COMMISSIONER SCHIFFER: Right. And the original PUD discussed that it's measured from the first habitable level. There's nothing in the PUD that would give anybody, the citizens, the impression that that meant the first residential, though. MS. ISTENES: I don't disagree with that. I'm curious if Rich has a different opinion, though. CHAIRMAN STRAIN: But he's not -- I think Brad's not getting at the fact it's the first residential level. He's saying the first habitable level technically is where the air conditioning space stops, and that's down another level below where they're starting they're measurements from, which means their buildings would all be judged higher than they should be pursuant to the current PUD language that's in place. So -- MR. YOV ANOVICH: What our -- the SDP that's in and what we intended by this settlement agreement was that I guess it's the second floor parking we're talking about right now for purposes of the SDP, correct, Mr. Schiffer? COMMISSIONER SCHIFFER: Well, you show in the SDP drawing second floor -- MR. YOV ANOVICH: I understand. COMMISSIONER SCHIFFER: -- parking that can't be built. Because the drawing unfortunately doesn't show the stairs going through it. Unless you're going to have some, you know, Star Wars teleporter on the third level to take them to the first. MR. YOV ANOVICH: But what I'm just trying to make sure I understand what we're describing correctly, those first two levels of parking, which would have some -- the top of the two levels would Page 68 December 13,2007 have lobby space and some other amenities. COMMISSIONER SCHIFFER: No. MR. YOV ANOVICH: We -- hang on a second. We did not intend those areas to count in the measurement of the portion of the building that I originally I think called residential or habitable. We expected the separation for that to be governed by the sentence that talked about parking structures. Do I have that right, Jerry? Okay. So that would be within the, quote, parking structure separation of structures. Then when we got to that next level where the residences start, that would start the measurement of height. From there to the upper finished portion of the ceiling, which I think is what the -- COMMISSIONER SCHIFFER: Right. MR. YOV ANOVICH: -- PUD says, that's where you would measure your height. That's what the settlement was based on, that's what the SDP is based on, and that's what we're expecting to come out of this as a result of our agreeing, again, to give up all residential development on the east side of the project, we've got to be able to put those units on the west side of the project. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: But Rich, that's not what the PUD is based on. MR. YOV ANOVICH: Well, that -- COMMISSIONER SCHIFFER: There's nothing in the PUD that would give anybody the impression that, you know, habitable solely means residential. And these buildings by nature, you know, have an amenity deck on the arrival deck. I mean, obviously one of the problems you have is you're bringing your exits to the basement. You don't have to discharge on that. That's a deck that has habitable space on it. MR. YOV ANOVICH: Well, then let's write it correctly so we Page 69 December 13,2007 don't have any ambiguities. That was our intent was that, you know, you'd start the measurement of height in the residential units -- if! can use that, is that the right language -- the residential units. MS. ISTENES: Correct. MR. YOV ANOVICH: That's where you would start your measurement of height. Everything below that would be governed by this other building separation distance. COMMISSIONER SCHIFFER: Which, based on building codes and all other governing codes, is essentially giving you an extra floor. MR. YOV ANOVICH: Okay. COMMISSIONER SCHIFFER: Well, maybe that's not okay. MR. YOV ANOVICH: I'm just saying, if that's the practical result, then -- keep in mind, we're also as part of this responding to the concern that we don't want residential units on the eastern side of our project anymore. So we've got to -- we've got to make this all work. COMMISSIONER SCHIFFER: But let's be clear, there is an additional floor on this building. MR. YOV ANOVICH: If that's the practical aspect under the code, then -- COMMISSIONER SCHIFFER: Mr. Chairman, I do have conversation on setbacks, but if anybody else wants to talk, let -- CHAIRMAN STRAIN: All right, let's -- each of us -- I can certainly tell you that there's others that have got comments on this paragraph. So let's work through this paragraph. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: You have -- if you have other issues on this paragraph, let's finish with your questions, we'll go to Mr. Vigliotti next, then Mr. Murray, then Ms. Caron and work on down through. COMMISSIONER SCHIFFER: The second major issue is the way the thing was written is that the distance between the buildings -- I'm not concerned about the parking level, that's low, that can blend-- Page 70 December 13,2007 the distance between the principal structures is to be one-half of the combined height. So essentially the height of the buildings, they're all the same height, which would be 200 feet. So one of the conditions of this is you want to be able to pull those buildings 100 feet in. Now, what you're going to tell you me is wait, there's a little clause, a footnote that says it could be administratively approved if you skewed them, but I think in terms of fairness of the neighbors, if they're expecting essentially a gap the width of the height and alls you do is play little twisty-poo with it, that I think that's not exactly what was intended at the PUD hearing. MR. YOV ANOVICH: Well, actually, the document requires two things for us to be able to put the buildings closer together: Common architectural theme and skewing. COMMISSIONER SCHIFFER: Right. MR. YOV ANOVICH: And we've met both of those requirements. There is a common architectural theme. The PUD has always had that provision in it that we could put the buildings closer together if we met those two requirements, which we're doing. I mean, that's -- and we had meetings with the neighbors to show the site plans. They've seen the site plans. Whether they scaled them off or not, I don't know. But they've seen this. Jerry was there. COMMISSIONER SCHIFFER: I don't know what they saw or what their skill of interpreting drawings is. I mean, I do know that from an October memo from Karen Bishop it shows that obviously the way you had them staff obviously didn't like it. So what we did is, in the same location -- and I have no idea for planning why this makes it better -- they turned them a little bit, skewed them. Skewed is non-oblique, non-perpendicular, very easy to obtain. So the point is, is that really the impression, why bother in the PUD to have that clause if the intent was to always have them closer and always -- Page 71 December 13, 2007 MR. YOV ANOVICH: Well, no -- COMMISSIONER SCHIFFER: I mean, the concern I have is that in fairness of what neighbors would expect if they did read the PUD document and look at the setbacks in it, obviously you had a little footnote that could get you out of it, they would expect the one-half the building height. MR. YOV ANOVICH: Right, unless they -- and if read the PUD document, the document says if there's a common architectural theme and the buildings are skewed, the buildings could be closer together. That's a common occurrence in a lot of the PUD documents that are approved. I believe even Land Development Code talks about a common architectural theme and being able to put buildings closer together. And we've had this discussion with other projects, Pelican Bay as an example, where on a lot of the high-rise pads because ofa common architectural theme buildings are close together, other than the one-half the sum of the building height, because they've met the requirements of the common architectural theme. CHAIRMAN STRAIN: Well, maybe to resolve this, Brad, the common architectural theme language is prevalent in many of the older PUD's. This one has had it in. We weren't part of the approval of that process. Do you see something in these buildings that is inconsistent with the application of common architectural theme as found in the PUD? COMMISSIONER SCHIFFER: No, the common -- CHAIRMAN STRAIN: That's what our objective here is today is to show where the settlement agreement may be inconsistent with the PUD. And-- COMMISSIONER SCHIFFER: I think the common architectural theme is an irrelevant part of this conversation. Yes, that's easy to obtain. And I'm sure that anybody building them out would do that. Page 72 December 13, 2007 The concern I have is just take the silhouette of these buildings, you've moved them to within like 120 feet from each other. So essentially we're creating a wall of buildings down the side of Vanderbilt. The height of the buildings is 200 and -- much higher than 200, because you have accessory structures, and you're public pushing them in closer and closer. Certainly closer than the chart, is what I think somebody would expect. And it also says that they can be. And I guess Susan, you're the one that would determine the word can, so can these be put closer? MS. ISTENES: If they meet the requirements of the PUD, which is common architectural theme and skewed. CHAIRMAN STRAIN: Doesn't staff rely upon professionals as well to opine on that -- MS. ISTENES: Well, yeah. CHAIRMAN STRAIN: -- and have it? I think a professional-- do you have any letters to that effect? MS. ISTENES: Actually, we do. I don't know that you have them. MR. SCHMITT: Do you have a copy of that? CHAIRMAN STRAIN: I've seen it, Susan, yes. MR. SCHMITT: We have a letter from an architect. I think the issue here, Brad, is that the PUD language is clear from the standpoint the language just says where buildings with a common architectural theme are angled, skewed or offset from one another and walls are not parallel to one another, the setbacks can -- and that's the word, can -- be administratively reduced. That is demonstrated to us. The issue is unless we can verify it doesn't meet those requirements, I have no option but to approve it. COMMISSIONER SCHIFFER: Well, my-- MR. SCHMITT: It's just the wording that was in the PUD. I can't change the wording. COMMISSIONER SCHIFFER: But then why do we have a Page 73 December 13,2007 development standard chart that gives setbacks that you know you're never going to use? I mean, isn't -- the concern I have is that the subtlety of that footnote versus the power of a development chart. I mean, I don't think that's fair. From a planning standpoint I see no advantage of twisting these buildings a little bit and sliding them closer together. I mean, what is the reward planning wise? MR. SCHMITT: I don't argue that. But I can't put myself back in the late Nineties when this PUD was approved and others with similar language that -- it is approved. They have a right to ask for that under this criteria and it's not subjective in nature. I guess if the board wants to make that decision, then the board can -- I have to defer to the board, if they choose not to exercise the word can. And I'm going to turn to the county attorney, because we had this discussion even yesterday -- CHAIRMAN STRAIN: Joe, let me interrupt. Before we go to the county attorney, we cannot hear today -- we're not here to debate and rewrite the PUD. MR. SCHMITT: That's correct. CHAIRMAN STRAIN: We're here to interpret the settlement agreement as if it -- to see if it meets the PUD. MR. SCHMITT: That's correct. CHAIRMAN STRAIN: Brad, you're not wrong in some of the comments you're making, but the PUD is a 2000 year document. I don't know how we can go back and change the PUD unless we do it through the settlement agreement. But the settlement agreement isn't addressing that kind of a change in as far as interpretation of the architectural theme. It's not saying eliminate that or enforce that, it's simply saying here are the setbacks. If you disagree that the setbacks listed in the settlement agreement are inconsistent with the PUD, I think then that's a recommendation that you can suggest. I haven't seen where you've Page 74 December 13,2007 proven that yet, though. COMMISSIONER SCHIFFER: I'm not proving it. What I'm saying is in the settlement agreement they're discussing the fact that they can reduce the setbacks to 100 feet. So the setbacks are certainly an issue of the settlement agreement. Why are they in it? CHAIRMAN STRAIN: I'm sorry, I didn't see that. MR. YOV ANOVICH: The reason we put that language in, if! can, is we wanted to -- and I think staff agrees with this -- eliminate administrative or administrator's discretion and have a clear, measurable standard as to the closest possible distance between these structures. That's all we were trying to do is create certainty through the settlement agreement. And I think staff agrees that it's easier for them to go look at this standard and say okay, if there's a modification in the future to the SDP, these buildings can be in this locating. Instead of going back to the provision of they've got to be common architectural theme and skewed, and do we argue over ifthere's a one degree or a half a degree, does that meet the skewed definition? We just wanted to take those arguments out, come up with what we thought was a more measurable standard. I think staff agrees it's a more measurable standard, and it's easier to implement than the current standard. COMMISSIONER SCHIFFER: Well, and here's what you put in there: The minimum separation for the habitable portion of the buildings shall be one-half the sum of the height of the habitable portion of the buildings, not to exceed 100 feet. There's no site plan that ever had this thing 200 feet separation. So why do you even tease us again with the one-half the sum of the height? There's no intention to ever provide that. The concern I also have is that the original PUD where they were parallel doesn't meet the intent of the PUD. So obviously somebody -- and it's best shown in the October 12th PMS document. It shows where somebody had a concern with the fact that whoa, wait a minute, Page 75 December 13, 2007 you're too close and you're parallel. So what they did is they did another site plan that just twisted them a little bit, kept them in the same point and then now we're in compliance. Which I think is -- could be tricking any neighbor that thought that there was going to be 200 feet between these buildings. I'm done. CHAIRMAN STRAIN: Mr. Vigliotti, then Mr. Murray, then Ms. Caron. COMMISSIONER VIGLIOTTI: I'd like to bring up two issues. Getting back to the floor levels, habitable space versus -- could we use living space or habitable living space, other than habitable that may be air conditioned? CHAIRMAN STRAIN: Well, I think, Bob, you're trying to get into changing the PUD. I don't think we're here today -- and maybe the county attorney can opine -- I don't know if we're here to change the PUD more than just say how the language in the settlement agreement may be inconsistent with the PUD. Although some of us may not like the idea of common architectural theme, they may not like the idea of some of this stuff, is it inconsistent with the PUD? And what you're suggesting would make a change that is different than the PUD. And I don't think we're supposed to be going there today. COMMISSIONER VIGLIOTTI: Okay, back to the second point with the common architectural theme and the skewing of the buildings. And Mr. Y ovanovich said that the neighbors saw the site plan, they're familiar with skewing the buildings and the space in between. I don't think it's here for us to start making changes to that. MR. YOV ANOVICH: And also, our understanding of the application of the PUD document -- our understanding of the application of the current PUD document regarding height does not include nonresidential units within the definition of habitable space, okay? I'm just -- our SDP is based upon those areas you're pointing Page 76 December 13, 2007 out, Mr. Schiffer, not counting within the 200 feet. If that's not going to be the interpretation of the PUD, we need to know that, because that goes to the heart of the settlement. CHAIRMAN STRAIN: Richard, we're simply going to have to look at this and recommend to the board what the settlement agreement language means in relationship to the PUD. If we agree that habitable floors by your architectural renderings is inconsistent with what we think the word habitable floor means in the PUD, that's -- so be it, that will be our recommendation for the board to decide on how to handle it in regards to a settlement of the case. MR. YOV ANOVICH: But I think you can also recommend from a planning perspective that it is -- the settlement agreement makes sense to have a different definition of measuring height. CHAIRMAN STRAIN: Well, we're not even that far yet. Mr. Murray was next. Mr. Vigliotti, did you finish your discussion? COMMISSIONER VIGLIOTTI: Yes, I'm done, thank you. CHAIRMAN STRAIN: Mr. Murray, then Ms. Caron. COMMISSIONER MURRAY: I want to be clear in my mind, certainly, whether or not we're managing to -- when we make our recommendation, whether we're managing to modify the habitable space that Brad has referenced, which is the second piece of the garage area. If we name that or determine that to be and recommend that to be habitable space, doesn't that change also the setback for the garage space, the setback? Doesn't that also impact on that and then -- CHAIRMAN STRAIN: I don't -- it says the garage is an accessory structure. I don't know why it would. But that's -- COMMISSIONER MURRAY: Well, a garage, as I interpret the plan, not presumed, you have your garage area and you have your structure built upon it, don't you, and that extends out as a wing? If the second floor, if you will, of that garage becomes in our minds habitable space, doesn't that then reduce the height of the garage? Page 77 December 13, 2007 CHAIRMAN STRAIN: No, because the garage still extends out past the edges of the building -- COMMISSIONER MURRAY: Okay, so that's -- CHAIRMAN STRAIN: Well beyond the habitable area. COMMISSIONER MURRAY: -- why I wanted to have it clear in my mind. Okay, and that's-- CHAIRMAN STRAIN: Would be my thought on it. COMMISSIONER MURRAY: -- fine. If that's what the presumption is, that's -- CHAIRMAN STRAIN: I mean, I don't think it has a huge effect on the overall scope. Jeff, can you comment on that aspect of the relationship of the settlement agreement to the PUD and what we are supposed to be doing in regards to that today? MR. KLA TZKOW: Yeah, the Board directed that you look at the settlement agreement and make sure that it comports with the PUD and with the board's prior directions and the LDC. Not to change it. I'm not entirely sure we need this extra language in here. From what I'm hearing from planning commission is that the PUD controls. And whatever the PUD language is the PUD language. This additional change I believe comes from that side of the table. It may change what the PUD really means. CHAIRMAN STRAIN: That's exactly what I think our goal was here today and our charge was, was to point those things out. MR. KLATZKOW: Yeah. CHAIRMAN STRAIN: So -- and Ms. Caron, did you have something you wanted to say? COMMISSIONER CARON: Yeah. Mr. Y ovanovich, when your client met with the neighborhood, were distances between those buildings shown on that plan that you presented to them? MR. YOV ANOVICH: I'm being told yes. I wasn't at the meeting. I'm being told yes. Page 78 December 13, 2007 COMMISSIONER CARON: Could I see that plan? Because the original drawings that we got up until a week ago never showed any distances between buildings. So we could have had that information apparently months ago, but we didn't get it? Your planning commission didn't get it. But you're telling me that the neighborhood recognized that there would be 100 feet or 150 feet between buildings, because it was on the plan that they all looked at? Okay, so here's the real situation. Go ahead and repeat what was just said to you. MR. YOV ANOVICH: That -- what I was just told was that there was a scale on the plans, but a physical line between the structures was not on the plans. COMMISSIONER CARON: So it did not say on anything that the citizens looked at here's building one and here's building two and the distance between those buildings is 150 feet, or whatever it might be. MR. YOV ANOVICH: No. COMMISSIONER CARON: It did not say that. MR. YOV ANOVICH: It did not say that. COMMISSIONER CARON: Right. So they really, in just glancing at plans in a neighborhood information meeting, would have had no reason or no understanding of what those little skewed plans that they were handed actually were meaning. So they couldn't have questioned that at the time. I think that the language being put in here is an attempt on staffs part to sort of be off the hook when these buildings finally go up and everybody realizes that they have this massive wall of buildings with only 100 or 150 foot separation between them. And when the complaints start coming in they don't want to have to deal with it. Now, in addition there is the question in our LDC about compatibility and light and air and view corridors. And I want to hear from staff on the acceptability of moving those buildings closer Page 79 December 13,2007 together in that regard. CHAIRMAN STRAIN: Susan, I guess that might be you. MS. ISTENES: That analysis is done at the rezoning level. So once the PUD is adopted with the language, it is presumed to be consistent with GMP and the provisions of the LDC. I agree with statements made earlier, I don't like the language. I don't think we're trying to put anything into the settlement agreement that gets us off the hook for anything. The language is what it is and I can't change it. We can only apply it the best way we understand and how it's written, lawfully written. So do I like it as a planner? Not really. But it's been adopted and passed and we're obligated to apply it. COMMISSIONER CARON: I have one final question for you. So if there is language in any PUD that might come forward to us in the future that says that somebody can do something if they ask for it, then it's an automatic that that will happen? I just want to be sure so that when I'm looking at other things I can question ahead of time that it will automatically happen. So this isn't like a shall or a may? MS. ISTENES: That's my understanding, and based on the context of this document and meeting the criteria that are set forth in this document. So if there's a "can" phrase, my understanding from the county attorney's office is if it meets the criteria, just as Joe said, we don't have a choice but to. That's my understanding. They can correct me if I'm -- COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Susan, but look at what you're saying, is we have a development standard that everybody's expecting 200 feet. You're saying if they turn those walls in any way, skew them -- that means they're not oblique, that means they're not parallel or perpendicular -- I can slide that building one nanometer off of the Page 80 December 13, 2007 other building and you can't say anything. I think what that clause says is you have the judgment to apply whether you can do it. I mean, that means I could put a solid wall so everybody got tricked by that phrasing. MS. ISTENES: I wish I felt that it said that, but I don't know that I have -- I would be able to defend my action if I were to choose to do that or have the ability to make that choice based on the criteria in the PUD. That's my honest, straightforward answer. I don't like it, but I don't think I have much recourse. COMMISSIONER SCHIFFER: So the joke here is the thing in the development standard table is useless. Because once they twist it, they can put them in a row, side-by-side, a nanometer apart. Okay, enough of that. The one thing about habitable. Habitable is a definition that we use in a lot of governing codes from FEMA to building codes and stuff like that. So I don't think -- you know, that's the word they used. It has a lot of meaning. So I don't think there's anything other than what it means. There's no special meaning in this PUD. CHAIRMAN STRAIN: I think the habitable issue is a viable deviation from the PUD that we should certainly render some kind of thought on. Common architectural theme is in the PUD that we didn't put it there, this board didn't put it there. And I can't think that this board has really not addressed this issue when it's come up in the past. And I know we will in the future. And I think the staffs in a quandary in having to deal with it. They have a professional that has supplied documentation that it meets that theme. They're stuck with it. I don't know how they could go against it unless they were to come back with some expert opinion that says it does not meet that. As an architect do you feel it meets common -- I mean, you may Page 81 December 13,2007 -- that's what they'd have to do, I would assume, to counter whether -- COMMISSIONER SCHIFFER: It has to do two things. But here's the horror of this whole situation. What it meant is that once you've make your buildings all look alike, once you've made your walls non-parallel, you have no side setbacks. I mean, pure anarchy. And Susan's over there saying that, there's nothing I can do, I can just watch it happening. The point is that I think what it administratively means is you can use planning judgment. Susan's a professional, she has a responsibility with her professional judgment. She has the latitude to apply some of that but not this pure anarchy of no side setbacks anymore. That's my point. CHAIRMAN STRAIN: Mr. Klatzkow, did you have a comment? MR. KLATZKOW: I sort of agree with Brad on this. COMMISSIONER ADELSTEIN: So do 1. CHAIRMAN STRAIN: Okay. MR. YOV ANOVICH: You know, those are really nice discussions but, you know, let's remember that you've got a fire code that you've got to apply, you've got buildings that have got to be skewed, there's got to be a common architectural theme. All of those issues were addressed. What you're talking about, I could build a wall of buildings right now. COMMISSIONER SCHIFFER: Yeah, you could. MR. YOV ANOVICH: Ifwe wanted to build a totally impractical building, we could build one big huge building with all those units in it that would block everybody's view under the current language. We're not doing that. If you look at that PUD document, it doesn't go to the absurd result of saying they're going to be one inch apart, or I think you used a nanometer, between the buildings. That's Page 82 December 13,2007 not the result that you're getting. I think you need to look at the site development plan, see what it is. And we're saying it's got to be 100 feet apart, you know, if we ever make a change. We don't get into the debate we're having right now as to whether or not it meets the PUD. You cannot can have a PUD document that is totally subjective with no objective standards. These are objective standards. Common architectural theme, buildings got to be skewed. We can't be at the beck and call of whatever the county deems to be the law at the time on this particular piece of property. These are measurable standards, they're in the PUD document. You may not like them, but they are measurable standards, they're in the PUD document and they need to be applied to this particular piece of property. MR. KLATZKOW: Well, I'd like to ask you, Richard, when it says it can be administratively reduced, how much can you reduce it by, in your opinion? Is it five percent, 10 percent, 100 percent? MR. YOV ANOVICH: Whatever the fire code tells me is an appropriate distance between those buildings, yes. MR. KLATZKOW: So when -- to get to Brad's point, when it says can be administratively reduced, you say I can reduce it as much as I want. MR. YOV ANOVICH: Because it has two criteria: Common architectural theme and it's got to be skewed. If you look at the regular code, the regular code doesn't require it being screwed. It just requires common architectural theme. It's in the Land Development Code, you can still do it. CHAIRMAN STRAIN: Mr. Vigliotti, then Mr. Schiffer again. COMMISSIONER VIGLIOTTI: Mr. Chairman, was it the direction of the board for us to compare these documents against the LDC? CHAIRMAN STRAIN : Yes, which is what we're doing. COMMISSIONER VIGLIOTTI: Which, as much as anyone Page 83 December 13,2007 might not like it, I think it meets the criteria and we're stuck with it. I agree with Susan. CHAIRMAN STRAIN: And Mr. Schiffer? COMMISSIONER SCHIFFER: And Richard, first of all, chairman of the fire code advisory council, these would be a Type I-A building, unlimited area. They could be a nanometer apart from each other. You might have some window placement issues. MR. YOV ANOVICH: And you've got some landscaping around the building issues that you've got to put in there, okay, so -- COMMISSIONER SCHIFFER: But the point is-- MR. YOV ANOVICH: We're not going to get that close, you know that. COMMISSIONER SCHIFFER: Right, but my major point is, is that we do a development standard. At the time of the PUD, everybody's looking at it. The neighbors are reviewing it, everybody is from that getting good faith as to what this building height is. And you're saying you never had any intention to use those numbers. You were going to step out of that table the first chance you got. And that's not fair. I mean, there's nobody with a prudent mind that would not read this table and expect 200 feet between these buildings, which are 200 feet tall plus. Thank you. CHAIRMAN STRAIN: Okay, Susan, did you have something you wanted to say? MS. ISTENES: A little bit in defense of myself, because I heard a statement that I felt was a little bit inaccurate or maybe implied something. It's not that I -- first of all, I agree wholeheartedly with your last statement, Commissioner Schiffer. It's not that -- and I sort of felt like a statement was made earlier that I don't care, I'm throwing up my hands and I can't do anything about it. That's not true. I've been told that based on the criteria in the document, which is very week, in my opinion, me interjecting my Page 84 December 13,2007 professional opinion on whether or not the buildings meet the intent of the separation distance for whatever they may propose, I have very little ability to challenge that successfully. And so that's what I've been told. And that's why you get to the point where you look and say it's weak criteria. If somebody gives me a letter from an architect, who am I to challenge? I'm not an architect. And the only criteria in the code is very liberal. So I just wanted to -- I don't want you to think that it's not that we just kind of give up and the developer is running around dictating whatever their setbacks are going to be. I agree with you, when somebody reads that table and they see 200 feet, I think they expect 200 feet. And I don't like having the ability to reduce it just on what I would call willy-nilly criteria. COMMISSIONER SCHIFFER: Can I respond, Mark? CHAIRMAN STRAIN: Go ahead, Brad. COMMISSIONER SCHIFFER: And here's the concern I have, is that you are the head planner. And I think what the judgment is, that if you have buildings that you do rotate, then the fact that you rotate them really does kind of bring them closer together, that's the latitude you have. Not that once you twist them you can slide them right into each other. I think that if you have two buildings and they do rotate, that does close that, and you have that -- MS. ISTENES: I understand your point. COMMISSIONER SCHIFFER: -- professional latitude to allow that. You're taking it to the max, which I don't think you have to do. MS. ISTENES: Okay, understand. CHAIRMAN STRAIN: Okay, Mr. Midney? COMMISSIONER MIDNEY: Would it be possible that we think in terms of maybe a future LDC code amendment that would change it and quantify this a little bit? CHAIRMAN STRAIN: Sure. We make-- Page 85 December 13, 2007 COMMISSIONER MIDNEY: It seems like it's hard to do anything right now. MR. SCHMITT: I would recommend, frankly -- and it's been our position because we've had other PUD's with the same language -- we don't even accept this language anymore. So that's -- the issue is not to clarify the criteria, the issue is not to accept it as a criteria in itself. So you don't see this in PUD's, newer PUD's. We just don't -- the language is omitted. CHAIRMAN STRAIN: Okay, I made a commitment that the public would be able to speak before we were to close today. I'm not sure how long that will take, but I want to make sure we get to hear the public. So before we move any further in this document, I'd like to ask the public speakers to say their -- to come and provide their comments to us today. We'll still continue till 12:00 and we'll just end up where we end up. Margie, could you call the speakers for -- MS. STUDENT-STIRLING: Yes, I will. And I want to state for the record that Mr. Iverson had to leave at 10:00 and he will be in contact with my office about the later hearing. And I've given the slip to the court reporter. Gary Edson? MR. EDSON: Hi. My name is Gary Edson and I live in Glen Eden, which is across the street. Just for the record, I had spoken with the developer prior, what has it been about eight months, six months, whatever it was. We talked about some of these issues. I hope -- I think that the spirit that we have to operate here is to make sure that there's a consistency all the way through this planning process. The impression that I've gotten in speaking with the developer, that intentions were there to try and work with the community. And I Page 86 December 13, 2007 hope that those will continue. The effort to get this green space or whatever we're calling it, a name yet to be decided, is critical to us, and we hope that that will -- it sounds like we've got good language for that, or at least we're moving in that direction. The buildings -- I'm the guy, and a lot of other of us are really probably saddened by the buildings, but we weren't -- we didn't fight that fight. We got 22 stories reduced to 10 at Aqua and we fought what, 18, 20 months to do that. And that was important to us. Unfortunately I'm disappointed that we're going to have the buildings that we're going to have. But that isn't going to change. And the fact that they're getting closer together, I hope that the group, Lodge, Signature, whatever the name of the group is, I would hope that in the spirit that those buildings don't get close together. I think that that would be a breach of trust with the community. We can't -- I can't do anything about it. I can only voice my opinion. But I would hope that the developer would recognize that I don't like driving by Signature and seeing those buildings 10 feet -- they feel like they're 10 feet off the road, which it's going to --line of sight. We didn't see -- I don't see a line of sight that -- you know, we didn't have a -- I didn't have a chance to participate in that. So I just hope that when the buildings are coming together that the conscience of the developer is going to rise to the occasion and say hey, you know, why are we doing this? Why are we putting them together? Can we push them back a little, can we do this, can we do that, can we make it nicer for the people. I think it's good that you want to make all the money, but I hope we can, you know, address that issue. It's not very factual, it's kind of a heartfelt statement, but I'm appealing to the developer that those considerations will be put in place. And as far as what you guys can do, do your best. Brad, I appreciate your comments. I mean, I think it's horrible. I think that it's Page 87 December 13,2007 not a good thing that we can have a rule and say oh, by the way, that rule doesn't count. That's kind of what you're saying. But that's up to the developer. They're going to have to use their conscience at this point. If they do it right, the people will be happy, if they don't, they'll be wrong, but there ain't much we can do about it. Since there hasn't been much else discussed today, it sounds like the super majority thing, I was pleased to see that. I think that's excellent. I mean, it's certainly a start in the right direction. And I think that the five towers, when you're complete with the fifth tower, when you put the C.O. on the fifth tower, that's what the green space is all committed. I think that's good that you clarified that. The max size of the lots, absolutely critical. I'm glad that you're addressing that issue. So as far as you've talked today, I guess my biggest disappointment is the height. My second disappointment is the closeness side by side. My third disappointment, when I looked at -- and I hadn't seen this before. When I looked at this drawing that's available over at the -- when you go over to the buildings next door, these -- you know, these drawings are now available. When I see how close this one is to the road, I don't know, but if it's 20 -- 220 -- what's it going to be 230 feet high? Pardon me? It's three from the feet, but I'm saying it's 220 feet -- CHAIRMAN STRAIN: Sir, you'll have to direct your questions to us. It's 385 feet from the road and including the accessory structures it's about 250 feet high, something like that. MR. EDSON: Okay. So line of sight. What does that equal in -- I mean, does that work out to be -- CHAIRMAN STRAIN: We'd have to have the plans here to see how that looks. MR. EDSON: That was just a concern. Haven't seen the details on it, but just is alarming. I think -- Page 88 December 13,2007 MR. YOV ANOVICH: Here's the line of sight. MR. EDSON: Okay. MR. YOV ANOVICH: Right there is -- Gary. I'm sorry. The building that's closest is building number one, which is the one that is within 385 feet. As you can see from -- and that's both lanes on Vanderbilt Drive. As you can see from one of the lanes the building's totally obscured, and from the other lane you've got a little tiny piece of building one you're going to see. The rest of the buildings, due to their distance back and the landscape plans that are part of the SDP, you won't see at all. And that's at planting, not at growth. So what you're talking about, even though you -- this wall of buildings you're going to see as you're driving down Vanderbilt Drive is a wall of landscaping. MR. EDSON: Well, it is and it -- yeah. I understand. I understand what you're -- MR. YOV ANOVICH: Okay? And if you look, if! can go back to this, and it's hard to -- MR. EDSON: Don't do that so fast, you're going to be sick. MR. YOV ANOVICH: As you look at this drawing, and I'm going to -- CHAIRMAN STRAIN: You've got to use the speaker. MR. YOV ANOVICH: I will, I'm sorry. I'm trying to get it to work. If you'll look at this drawing, this is building one, which is the most southern building. That's 385 feet. The tower portion, the residential tower portion from Vanderbilt Drive. The garage is 276 feet. You know, the garage is a very low height. So there's quite a bit of setback. Then the next closest building I believe is the residential tower itself, is 580 feet from Vanderbilt Drive with a garage being 454 feet. Then you get to building number three, it is 782 feet from the Page 89 December 13, 2007 residential living portion of the building, and then 671 feet for the garage. Building four is 878 feet for the residential portion, 781 feet for the garage. And then building number five, which is the most northern one, that's, you know, 1,400 and I think that's 24 feet from the road, and the garage is 1,297 feet. So these are not fronting right on top of Vanderbilt Drive. MR. EDSON: What is then the distance between tower to tower? MR. YOV ANOVICH: Okay, building one and building two, the distance is one -- I'm trying to read those numbers. COMMISSIONER SCHIFFER: 53. 153. MR. YOV ANOVICH: The garage is 107, the residential towers are 153. The building two and building three, the towers are 126 and the garages at the nearest point are 60 feet. Building three and four, the towers are 127, and the closest part of the garages are 81 feet. And then building six and building five, they're -- the closest portion of the garage is 227 and the tower itself is 341 feet. MR. EDSON: It would appear that based on the configuration, it almost looks like you can't get them all on unless they're that close. MR. YOV ANOVICH: Correct. Well, we can -- I guess we can get closer to the road and we could -- or we could build a lot of our residential units, the ones that we moved over, remember, on the golf course? MR. EDSON: I'm just trying to understand, you know, the logic and what caused the thing. And I don't want to take up -- I have taken -- overextended my time, but I don't want to do that, so thank you very much. CHAIRMAN STRAIN: Thank you, sir, we appreciate your Page 90 December 13, 2007 input. MS. STUDENT -STIRLING: The next speaker is Robert Butkevich. MR. BUTKEVICH: Good morning, ladies and gentlemen. I appreciate the time. My name is Robert Butkevich. I'm the Operations Manager of Tower Point-Arbor Trace Retirement Community and Assisted Living Center that's directly on the north border of the Caloosahatchee Bay property. Now, I can't tell you how important the eagle nesting is to us. And I realize there's going to be changes made now in the eagle management plan. However, for years our owners have loved these eagles. They come and they land in our trees, on top of our building, they drink, bathe and feed in our pond. It's a huge part of the community. We have eagle seminars, pictures brought in on a regular basis. For those in our assisted living facility, the highlight of their day often is being able to sit outside and watch those eagles come down to the water. So that is a very important part of our community. Now, as of last October 7th -- I know this because I watch on a regular basis, I am an avid eagle watcher -- they returned to their nest off of Vanderbilt Drive October 7th of last year while the construction was going on the overpass. Now, over the next three days they went back and forth between the woods on our adjoining property, as well as the nest and finally abandoned the nest and start building the new which now exists today close to the borderline of our property, along with Signature Communities. Now, my main concern is, or was, and maybe it's been alleved (sic) now, is in the current documents it stated that building number five would be built first, and now it's been suggested that they would start at the south end and start with building one and finish with building five, which is hopefully what will take place. Page 91 December 13,2007 But even with that my main concern is if the eagles are disrupted, you can't just say sorry, come on back. Like I said, they're a huge part of the community. So some guidelines, strong guidelines really need to be put in place as far as when building can actually take place. If that bird comes back -- if the birds come back to nest next October and construction is going on, it's going to take five days for the legal process to take hold to stop the project, they could be gone by that time. So something needs to be in place really all the time so that everything will be done to keep those birds from leaving their territory. I realize it's up to you to decide that and then beyond that to the commissioners and Signature Communities. It is our hope that by the slow process of getting the building at the very south end and coming north during the off season the birds will -- the eagles will just adjust to that and they'll coexist with us, and the owners of Signature Communities will have as much love for those eagles as all of us do in our community. So like I say, it's just very important that everybody understands that there is no second chance. In those eagles get scared off, we've lost them forever. We've already lost the nest in Pine Ridge neighborhood that was cut town, we've had a nest abandoned near the Germain car lot because a parking lot was just expanded. Even though they're being de-listed from the national register, in Collier County they've become even more endangered because of loss of habitat and being driven away. So far Signature Communities has been excellent land stewards. They've given us the opportunities to enter their property and monitor the eagles as they were doing themselves. However, like I say, all it takes is one error and those birds would get scared off, it's all over with. And it could be devastating to our community. So I'm hoping that everybody involved will seriously consider this issue and put not only the residents of our community but the Page 92 December 13,2007 environmentalists, nature lovers and hopefully the new owners in the Caloosahatchee Bay project, make them very happy to have this, too. So thank you for your time. CHAIRMAN STRAIN: Thank you, sir. And last night we received what's called a new bald eagle management plan. And I know you probably haven't seen it. Before the next meeting, if you were to contact one of the staff members here today and leave them with your e-mail address and they could e-mail that to you. If there's issues in there that seem to be striking a problem with your discussion here today, you may want to come back on I think it's going to be the 11th of January and let us know your concerns. MR. BUTKEVICH: Thank you very much. CHAIRMAN STRAIN: Thank you, sir. Next speaker, Margie? MS. STUDENT -STIRLING: The next speaker is Gina Downs. She's the last speaker. MS. DOWNS: Hi, I'm Gina Downs. I have three issues. I'm a neighbor, I live on Vanderbilt Drive. One is the neighborhood info meetings. Obviously this was not clearly disclosed, or would you say it was misrepresented in that it did not show the distance between buildings, so we were not able as a neighborhood to determine if that was a good plan from the get-go. Secondly, I would say the PUD document says the tradeoff is if there's a common architectural element, then they can move the buildings closer together. Well, as a neighbor, common architectural element is not a concern to us. That doesn't benefit us in the neighborhood. I drive down Gulf Shore or Pelican Bay. I don't find five buildings architecturally similar. If one building has an Italian theme and the one next to it has a French theme, that doesn't impact me as a neighbor. But buildings too close together to be attractive to the eye do affect the neighborhood. And I don't think that was clearly Page 93 December 13, 2007 represented from the get-go. I don't have any doubt these are going to be attractive buildings, I have no doubt they're going to enhance the value of my property. I'm not bothered by the development going in there. Like everybody else on my street, I'd rather there had been no development. But I'm sure the people who lived on my street before my development went in felt the same way. So I'm sure this is going to be a very attractive development. And I welcome them and I wish it were done in a way that the neighborhood was aware of from the get-go so we could have had input way back when. The third issue is I think my neighborhood has had issues with Joe's department. And I'm sure a lot of others have. I think it's very curious to learn that the word can be administratively reduced means will or must be administratively reduced. Because we have a lot of issues that we would love to have known that can means will or must. So I anticipate bringing our issues back and using that wording to say will or must be administratively reduced. Fair warning. Thank you. MS. ISTENES: It's not my decision -- CHAIRMAN STRAIN: Thank you. MS. ISTENES: -- it's the county attorney's office. CHAIRMAN STRAIN: Thank you, ma'am. Okay, that's the end of -- Margie, is that the last speaker? Is that correct? MS. STUDENT-STIRLING: Yes, it is. CHAIRMAN STRAIN: Okay, we left off on paragraph 10. My understanding from what I'm hearing here today, we may want to consider two parts of paragraph 10. The first sentence gets us to an issue of going from 15 to 17 stories, not to exceed 175 feet in height. The way it's written, the definition of stories would fall back on the definition of height in the PUD. That's one issue. Then the second issue deals more with additional definitions of Page 94 December 13, 2007 height, referring to habitable portion, and then the separation between the buildings. I know there's disagreement over the separation between the buildings as to how it may be interpreted throughout the PUD. The first issue is the first sentence maybe we all ought to concur on, that the height rise from 15 to 17 stories. Let's work on that first. Is anybody concerned about that sentence? (No response.) CHAIRMAN STRAIN: Okay, so is there any -- from our recommendations to the county commission, that first sentence basically -- we wouldn't have any further comments on. I think that's good, but I wanted to -- the second sentence from the end of that first sentence on where it starts with footnote two, what's the -- and without going into a redefining of it, I think what we're here to do is to say is that sentence or is that back into that paragraph consistent with the PUD or not, or do we feel it should be in the settlement agreement? Maybe the consensus is that that whole remaining part of the paragraph just comes out of the settlement agreement -- COMMISSIONER SCHIFFER: Well, Mark? CHAIRMAN STRAIN: -- and then that falls back on the interpretation of the PUD. Go ahead, Brad. COMMISSIONER SCHIFFER: Footnote two is actually reflecting the height that we just agreed upon. Footnote two says, building height for the north property adjacent to Arbor Trace in the R -1 tract shall be 15 stories. So footnote two doesn't have anything to do with -- CHAIRMAN STRAIN: You're right. COMMISSIONER SCHIFFER: -- what follows. So I -- CHAIRMAN STRAIN: I meant then we should start with the added underlying sentencing that really was only added in the addition Page 95 December 13, 2007 we received on Tuesday. Prior to that it was struck. COMMISSIONER SCHIFFER: Well, I read -- I think this was an issue that's been happening with staff. There was a memo from Pettit that said even though you struck it, it's still an issue. So I guess that's why it came back in. Is that right? CHAIRMAN STRAIN: That was struck by the applicant, I believe. MR. YOV ANOVICH: No. It was in -- this was in -- we originally wanted it in and then Mike Pettit said that was a new provision. And that was the provision that we understood created the need for this to come to the planning commission in the first place. So we said okay, if you interpret that to be a new provision and that's why we're going to the planning commission, let's just take it out. And then we were told, well, we're going to go to the planning commission anyway, and we said, well, then why don't we put the clarification language in, discuss it, and let's debate that language to -- we would explain to you why we think we need it, that it's a clarification, it's a more measurable standard, it's better than the language that's in the PUD today, and then discuss that language. I believe your staff agrees it's better language than what's in the PUD document today, but-- CHAIRMAN STRAIN: Well, it goes back in, Richard, and actually kind of messes up some of the definitions. It really -- I think in some ways it may hurt you because it redefines the height as habitable portion. So now we're back into the debate on the habitable portion, and habitable is not the word that you've drawn these drawings to. I'm not saying we want to accept your drawings, I'm just saying I don't know how that's going to help you. And the last part of it says, the buildings not to exceed 100 feet of separation. So that means they've got to be closer than 100 feet, and your entire plan is in violation of that. Page 96 December 13, 2007 MR. YOV ANOVICH: We had that little discussion about whether minimum was the right word or maximum is the right word for -- you know. CHAIRMAN STRAIN: I don't see how those sentences help you. And I think they're the probably right now fairly good-sized issue of contention on this board. So what's the thoughts of the board in what we'd like to suggest in regards to the underlined sentence on paragraph 10? Mr. Schiffer? COMMISSIONER SCHIFFER: I mean, I think we should take it out rather than legitimize what I think is a problem with the setbacks. And that's a problem I think staffs going to have to deal with, because that's how the PUD was written. CHAIRMAN STRAIN: No, I don't think it's going to be staff to deal with it. I think it's going to come back in our lap when we review the SDP documents that are going to be coming to us in January. COMMISSIONER SCHIFFER: Then that's certainly a good reason to take it out. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: I actually think we shouldn't do anything with it right now until we come back in January, and then we can deal with this issue. CHAIRMAN STRAIN: Anybody else have any thoughts on it? COMMISSIONER MURRAY: Yeah. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Yeah, I agree with Ms. Caron on that. I think we ought to hold on this until we're really clear on it. At least for me, anyway. CHAIRMAN STRAIN: Brad, do you have any problem with that? COMMISSIONER SCHIFFER: No. I think the real issue should be discussed once, and I think it's -- before we leave today, Page 97 December 13, 2007 there's a couple documents I think I'd like to request before we do have that discussion, too. CHAIRMAN STRAIN: Okay. Well, then I guess the consensus from the board, unless I hear otherwise, is we're going to defer further analysis on paragraph 10 until we get to our next meeting after we've had time to see the latest SDP documents. Is that okay with everyone? COMMISSIONER ADELSTEIN: That certainly is. CHAIRMAN STRAIN: Okay. We have a half an hour left. I think we can keep moving through. About 10 minutes of or so I'm going to pause to try to make sure we've established a new date that we can continue to. Okay, we're still on Page 5 and now we're moving to paragraph 11. Anybody have any problems on paragraph II? Ms. Caron? COMMISSIONER CARON: It talks about the 590 units. However, if you add up what's been proposed, as far as I know, there are 582 high-rise units, and two other residential units for a total of 584 units, not 590. And I'm just not comfortable approving what essentially we've learned is ghost density on projects. What they've put forth that they want to build is a total of 584 units. CHAIRMAN STRAIN: Yeah, but we would have to accept what the PUD already approved. And I think if the PUD is for 590, it's 590. We're not here to change the PUD. I don't know how we could reduce zoning on a PUD when that's not -- we're here to review a settlement agreement. So I think we really would need to -- that issue needs to be deferred to the PUD. And I believe it's 590, yeah. MR. SCHMITT: Yes. I'll put it on the visualizer. It's 590. The settlement agreement is actually moving the density that was allowed in the original PUD and moving it from the east side to the west side of the development. That's essentially what the settlement agreement was doing as well. And only allowing two units in the golf course -- Page 98 December 13,2007 CHAIRMAN STRAIN: Ms. Caron? MR. SCHMITT: -- rather than the 20 as shown here. And the other 90 were in another area. We'd have to pull out the original plan. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Well, I mean, I just see that we've made a change in this, because we no longer have R-1 and R-2, we have a single R property, with the exception of two units. This is all very convoluted. I don't see this as a direct transfer. What happened was the community agreed that in exchange for no building, other than the two units on the east side of the property, the petitioner would get two floors on the top building. So the two floors, they're building buildings that are 12 units -- or six units per floor. So that transferred 12 units over there. MR. SCHMITT: I'm only bringing forward what the board agreed to. CHAIRMAN STRAIN: Right. MR. SCHMITT: Staff did not get into a discussion. This was agreements initially discussed with the petitioner and the -- COMMISSIONER CARON: Okay. MR. SCHMITT: You know, we -- this is -- I don't know, Mr. Y ovanovich, if you want to provide background on that, but this was discussed at the board and we're only bringing back what the board directed staff to put in the document. MR. YOV ANOVICH: Right. And there's also language within the PUD document itself that would allow us to move some of the units from the R-2 and the GC over -- some or all the units over to the west side. CHAIRMAN STRAIN: I'm going back to the same position that I tried to express earlier. We're here to point out the differences between the settlement agreement and the PUD. The 590-unit reference is consistent with the PUD. COMMISSIONER CARON: All right. So I just want Page 99 December 13,2007 everybody to be aware that in point of fact, while we're seeing a plan that shows, you know, 584 units altogether, in point of fact 590 units, with the exception of two of those, can and potentially will be built on the west side of that street. MR. YOV ANOVICH: We could put another six units over there, yes. COMMISSIONER CARON: I want everybody to be aware, because they're not. CHAIRMAN STRAIN: Any other points on number 11 ? (No response.) CHAIRMAN STRAIN: Richard, the word shall in the second sentence, you may want to change that to may, so that if it shall be multi-family, but then in the next sentence you want to single-family. That seems to be inconsistent. Why don't we just use may be multi-family. Because obviously not all of them are going to be. MR. YOV ANOVICH: Okay. CHAIRMAN STRAIN: The 20 feet set back from the internal road, you know, you're going to come back with an analysis of the size of these lots and everything. If you haven't even fixed them yet, does 23 feet bother you? Because that's the standard we've used now in the county for a couple of years. MR. YOV ANOVICH: Well, I mean, the LDC requires 23 feet from the sidewalk. We could have a side loaded garage that can actually be 20 feet from the sidewalk. CHAIRMAN STRAIN: I agree. MR. YOV ANOVICH: So, I mean, the LDC is still going to govern the fact that we need 23 feet from sidewalk. Does that address your issue? CHAIRMAN STRAIN: Yeah, that does. That's fine, if that's -- I mean, as long as that's your intent, I have no problem with that. Okay, anything else on Page 5? (No response.) Page 100 December 13,2007 CHAIRMAN STRAIN: Okay, let's move to Page 6. Starts out with paragraph 13. Anybody have any issues on paragraph 13? (No response.) CHAIRMAN STRAIN: Well, this is the bald eagle management plan, so this one's going to have to be put off till January 11th. I do have some concerns on it. Maybe between now and January 11 th when we discuss it under the bald eagle management plan, if there's a way to address those concerns, they can be resolved at the same time. But I don't want to beat it to death twice, so let's move on. MR. YOV ANOVICH: And I would like to take an opportunity to point out, I believe on the site development plan documents you have, you will see that the bald eagle management plan was in fact written on those SDP documents in response to a staff comment. So we did that back in our submittal in October. So that language was added to the SDP documents themselves, the sequencing in the bald eagle management plan. CHAIRMAN STRAIN: Okay. Well, that will come back on the 11th of January. Paragraph 14, does anybody have any issues on paragraph 14? Ms. Caron? COMMISSIONER CARON: Shouldn't we always refer to it as the Bert Harris Act, as opposed to the Harris Act? I don't know, the lawyers will have to tell me if there's another Harris Act out there somewhere. MS. STUDENT-STIRLING: Certainly. We can do that. CHAIRMAN STRAIN: Tom, Dick and Harry Act. There's all kinds of acts, huh? COMMISSIONER CARON: Right. CHAIRMAN STRAIN: Okay, let's go to Page 7. Page 7's got some new language on item 15. MR. KLATZKOW: Mr. Chair? CHAIRMAN STRAIN: Yes, sir. Page 101 December 13,2007 MR. KLATZKOW: I would ask that 15 be eliminated entirely. I don't think it's necessary. I know, I've had discussions, and I don't think it's necessary to this agreement. And I think it might have repercussions down the road. CHAIRMAN STRAIN: Anybody got any comments from the panel? (No response.) CHAIRMAN STRAIN: This just came out and the copy I had up until yesterday or last night was blank, so I hadn't really gone over it myself. Ms. Caron, did you have a comment? COMMISSIONER CARON: Well, I just had a question. Mr. Y ovanovich, when you and I talked, you said that the submerged lands, the acres of the submerged lands that Florida was claiming were 173.5; is that correct? MR. YOV ANOVICH: I gave you the net number. Subtracting out the 127.92. I gave you a bad number. The submerged land number is 127.92. What I had given you, Commissioner Caron, was the net number of the open space minus that resulted in a new open space number of 173.5. So I had given you -- I gave you a wrong number when I said 173.5 was the actual submerged lands. I gave you the wrong number. COMMISSIONER CARON: What I'm telling you is I don't think that the math agrees at any rate. Because if you were subtracting -- if they're taking out 127.92 acres and you're subtracting it from your open space of 308, you're not going to get 173.5. MR. YOV ANOVICH: I'll talk to the engineer who gave me those numbers. I didn't do the math myself. COMMISSIONER CARON: I mean, it's just-- MR. YOV ANOVICH: I hear you. COMMISSIONER CARON: -- addition and subtraction, okay? MR. YOV ANOVICH: I filled in the blanks based on the Page 102 December 13,2007 information. It's within an acre or two. We'll make it jive. We'll make it exact. CHAIRMAN STRAIN: Richard, is there any reason to leave that language in at all, following Jeffs suggestion, of just omitting paragraph 15? MR. YOV ANOVICH: We don't -- we didn't ask for the language so we don't have an objection to it coming out. CHAIRMAN STRAIN: County attorney's office doesn't feel it's needed. I don't know why we need it. Does anybody on the panel seem to need that language in there? COMMISSIONER SCHIFFER: No, just a -- COMMISSIONER VIGLIOTTI: Not at all. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: Don't we not allow the use of submerged land, no matter who owns it, for density? MR. YOV ANOVICH: No. COMMISSIONER VIGLIOTTI: Not at this time. MR. YOV ANOVICH: Well, that's new. Not now. But back when this document was prepared, if you own the water, you did get to include it. And now there's been revisions that say no, you don't get to. Look, the important thing from this paragraph, as you can see, if you take that out of the calculation, we're still 1.46 units per acre, which is well under the comprehensive plan number. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah, I have one other question then. If we take this language out, now that we know it is in point of fact true, then that makes the PUD incorrect. And if this were any normal situation and these facts came to light, they would have to go through an entire PUD amendment process. MR. YOV ANOVICH: Well, there's -- the difference here is Page 103 December 13, 2007 there's a dispute over ownership. We're not saying the state's right, but from a practical standpoint, from a dollars and cents standpoint, it didn't make any sense for us to take the state on, because it doesn't affect us. From a legal standpoint it didn't affect us, so we didn't -- so it's true, we think we own it, but the state thinks they own it as well. The county attorney's office said let's report this information in the PUD so nobody can accuse us of rezoning property we don't own, and we'll take it out. COMMISSIONER CARON: Okay, take it out. CHAIRMAN STRAIN: I mean, if there's no need for either side to have it in, let's just recommend it not be added. MR. YOV ANOVICH: Is it coming out? CHAIRMAN STRAIN: Yes. That's the consensus of this board, or at least the recommendation. Okay, we're on Page 7, paragraph 16. Anybody have any comments on that? MR. SCHMITT: Sixteen will now be 15. CHAIRMAN STRAIN: Well, let's not try that today. Let'sjust keep the numbers like they are. Okay, paragraph 17. COMMISSIONER CARON: I'm glad Joe's paying attention. CHAIRMAN STRAIN: Paragraph 17 starts on page 7, goes to Page 8. I had quite a few problems with it. Anybody have any issues you want to go into other than going through the process that I already laid out? COMMISSIONER CARON: I haven't seen what you laid out, so CHAIRMAN STRAIN: Well, I was concerned that a third party challenge to this agreement could be unending, so I know there's a legal time frame, and I'm asking that we insert a legal time frame that would match the challenge from when a settlement agreement is effective to the time frame in which a person could come in and Page 104 December 13,2007 challenge it, rather than leave it open-ended. Because this has a lot of impacts on monies that are funded and how they're to be funded and how they could be retained or returned. So -- and Margie, you and I had spoke about this, and you were going to try to find out. I don't know if you've had enough time to do so. MS. STUDENT -STIRLING: Yes, I did a very quick look through, both by computer research and other, and so far I hadn't found anything in the statute. But maybe if we put in accordance with the requirements of Florida law that that will cover it. Or as required by Florida law. CHAIRMAN STRAIN: I think that would work. Anybody else? (No response.) CHAIRMAN STRAIN: Okay, the next item on here is this talks about a third-party challenge, and then if Lodge is prevented from being able to develop the project consistent with the revised master plan, county agrees to return all the money. Well, being able -- being prevented from developing the project because a permit is causing you some concerns at the time is certainly far different than being able to be permanently prevented from developing the project. So what I would like to suggest, that this language only kicks in if Lodge is permanently upset from be able to develop the property. Otherwise, temporary setbacks through the federal and state permitting process may trigger this paragraph, and I wouldn't want to see that happen. So it would be a permanent inability to develop the property from a challenge. MR. YOV ANOVICH: I don't know how I -- CHAIRMAN STRAIN: Well, if someone challenges the bald eagle's biological opinion and you have to go out and get another one, you're going shut down or you're going to be stopped until you do. Page 105 December 13,2007 That's not a permanent damage to you. MR. YOV ANOVICH: What if I never get the biological opinion? CHAIRMAN STRAIN: Well, that's permanent then. MR. YOV ANOVICH: How do I know when I've got the permanent is my point. How many revisions to the bald eagle management plan do I need to do to prove that I've been permanently unable to obtain the project that we all think we're getting right now, which is hopefully when this all goes to the board and you review the SDP's. How many revisions do I need to do to the biological opinion before I prove to you that I've permanently not been able to obtain that? CHAIRMAN STRAIN: I don't know, Richard. But I know that I don't want to set up it so that if you -- I think if you go do due diligence and you try and you repeatedly try and you don't get, that's a signification it's pretty permanent. But I don't know how to explain that in this document. But I don't want to leave it open so that you get it turned down from a federal agency, you turn around, want all your money back and that's it, it's too quick. COMMISSIONER CARON: And in another month later you build. MR. YOV ANOVICH: Can we put that on the list of things between now and our next meeting -- CHAIRMAN STRAIN: Absolutely. MR. YOV ANOVICH: -- to try to come up with language that would satisfy everybody? CHAIRMAN STRAIN: Yeah, certainly. No problem with that. Okay, and then in that same context, if you've read the rest of what I've passed out, I'm concerned about the money that would be returned. Because there are going to be monies that may get issued and spent. Some of them are going to be contractually committed. Page 106 December 13,2007 Then for some reason if a challenge later down the road changes this project to a point where this triggers this paragraph, you'd want all the money back, we may have already expended it and we may have already committed it under contract. I didn't think that would be fair to request that money that's been spent or committed as the money that would be applicable to be returned under this particular clause. So that's -- that was what the next part of this tries to explain. I was suggesting adding some language in the word -- it says return all money, and I would say, that has not been expended or contracturally committed provided by Lodge under this agreement. MR. YOV ANOVICH: Commissioner, let me tell you the history of that language. And this was discussed a lot in front of the Board of County Commissioners. This language was written because there was a state of flux as to what was the federal government going to do regarding the regulation of the bald eagle when it became de-listed. Okay, so that state of flux is still there. Weare going through and getting the permits we need to implement our SDP. Ifwe get those permits, you get to keep the money. Ifwe don't get those permits, you don't get to keep the money. And what the board said is they were going to wait a period of time before encumbering those funds so that we can go ahead and make sure we get our federal permits so they were not in the position of spending the money and then having to give it back to us. And we did have that discussion. So that was raised, and the board understood that there needed to be a period of time before they started spending the $3 million that they would be getting as part of this, as well as potential affordable housing funds. So they understood that provision and that's why it's kind of written the way it is, because there's still that uncertainty from the federal permitting side. Page 107 December 13,2007 CHAIRMAN STRAIN: Okay. Why don't we take the rest of this paragraph in regards to those issues and consider -- you've got the notes that I've supplied. They center around the same thing. If you look at the second part of the paragraph, it's another reason for the refund of money, based on you not getting federal permits. Same application applies. . If you're telling me now that there's some way to rewrite this so that the money doesn't get spent until the SDP's are approved and that makes everybody feel comfortable and that only the monies that could be returned for an event like this would be those not expended or contractually committed after the SDP's are approved, that may be the language that needs to be added here to make this more comfortable. MR. YOV ANOVICH: It's my understanding in understanding in order to get the SDP approved, finally, we have got to show, though, we have the required federal permits. Hopefully it will become a non-Issue. CHAIRMAN STRAIN: Okay, I think this will clear that issue up, and we'll just defer 17 until you get back with us before the next meeting. Which I want to discuss the next meeting right now. Mr. Schmitt, January 11 tho MR. SCHMITT: January 11, 8:30. CHAIRMAN STRAIN: In this room. MR. SCHMITT: And we have it locked in all day. CHAIRMAN STRAIN: Okay. I need to get a commitment from everybody involved, the county attorney's office, staff and especially the applicant, that no later than January 4th every document that we would be needing to be reviewed will be in our possession and it will not be changed, and no flurry of midnight e-mails or anything else will come to this board from the 4th until the 11 tho Does that work for the county attorney's office? MR. KLATZKOW: Yes. Page 108 December 13,2007 CHAIRMAN STRAIN: Richard? MR. YOV ANOVICH: I don't think we have any documents that we're responsible for preparing at this point. Unless I'm wrong. Someone tell me if I'm wrong. So what I would ask is that we get the documents from the county attorney's office at least three days, or two days, because January 1st obviously is not a work day, is the holiday. Ifwe could have those documents so we could have an opportunity to look at them and comment to them before they go to you, I would appreciate that. Because quite candidly, starting December 21st, which is a week from tomorrow, I believe, I'm out of town for the holidays until January 2nd. So I would request that if I'm going to get something, I'd be given an opportunity to look at that, and my client as well. So if we can have them waiting for us January 2nd to look at it, the sooner the better. So Mr. Strain, I'm saying I'm committing to do that, but there's some constraints there that we've got to get some documents. MR. KLATZKOW: We're going to get this right out, don't worry about that. CHAIRMAN STRAIN: Okay. So you're telling us at this meeting that by the 2nd of January you can have the documents they would need to review and then the documents that we would need -- first of all, all need to come through the county attorney's office. And they would come to us -- MR. YOV ANOVICH: That's who we'd be giving them to. CHAIRMAN STRAIN: -- no later than the 4th of January. Does that meet everybody's concerns and needs? Ms. Caron, then Mr. Schiffer, then Mr. Murray. Go ahead, Ms. Caron. COMMISSIONER CARON: Well, I just want Mr. Yovanovich to hear, there are some issues that you are responsible for. For one, Page 109 December 13,2007 you were going to give us a definition of the preserve. What is the actual language, I don't have the PUD -- CHAIRMAN STRAIN: Green space -- COMMISSIONER CARON: -- in front of me. Green space and CHAIRMAN STRAIN: -- and passive recreation. COMMISSIONER CARON: Passive recreation, thank you very much, Mr. Strain. That was one of the things that you were going to work on some language. I believe if you look at the other notes, there are -- there's some other language that you were also going to be working on as well. So you're not off the hook here until the 2nd. Sorry. CHAIRMAN STRAIN: Mr. Schiffer, then Mr. Murray. COMMISSIONER SCHIFFER: Joe, would you do me a favor and look on your calendar and see ifthere's the task force meeting on the 11 tho And while he's doing that, Rich, is there any way you can get us -- and you can do it just for the typical building -- the third floor, second floor and first floor? The first floor we kind of have with parking, second floor you don't quite -- I mean, you have something but I know it doesn't work, so a real floor. And then the third floor, just for satisfied curiosity. MR. SCHMITT: Mr. Schiffer, no, it's not on the 11th. It's the following week. COMMISSIONER SCHIFFER: Okay, thank you. MR. SCHMITT: Mr. Chairman, I have a question with regard to the process. CHAIRMAN STRAIN: Well, let me get Mr. Murray done, then you. Mr. Murray? COMMISSIONER MURRAY: You say it's not the 11 th now? Page 110 December 13,2007 COMMISSIONER SCHIFFER: No, my meeting. MR. SCHMITT: His fire review task force is not on the 11th. COMMISSIONER MURRAY: Okay, excuse me. My question had to do with the SDP documents, the new ones, the revised ones. We will receive those, the cutoff applies there as well, too, does it not? CHAIRMAN STRAIN: Right. COMMISSIONER MURRA Y: Is that going to be possible for you? MR. SCHMITT: That was my question. We just received those. Would you prefer -- I think it would be probably better for you all if we go through them and make our comments and provide you the list of any of our rejection notices so you don't stumble over the same information. Is that -- CHAIRMAN STRAIN: I would think your review coming to us would be equally as important as the documents. So if your review can't get done till the 4th, what I was trying to say is you can give us stuff before the 4th, but don't give us anything after the 4th. Let's not go there again like we did today. MR. SCHMITT: I need to discuss with the staff to find out when we can finish our review. We will put a package together for you to give you new documents. And the second piece. But I'll talk to the county attorney. I understood you were going to take what we have today, and I just want to be clear, I'll put it on the record then, you were going to take -- we had today and kind of edit a version up to the point where we're at CHAIRMAN STRAIN: Well, county attorney's office offered that, yes. MR. KLATZKOW: I'm going to prepare a strike-through underlined of what was discussed today. MR. SCHMITT: Okay. Page 111 December 13,2007 CHAIRMAN STRAIN: And I've got my own notes as well. So we'll keep track of it pretty well between now and the 11 tho COMMISSIONER MURRAY: So it looks as though we would have -- CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: -- the third meeting on this when the SDP's or documents are -- CHAIRMAN STRAIN: No. COMMISSIONER MURRAY: -- likely to be done. MR. SCHMITT: No, I -- CHAIRMAN STRAIN: We should finish everything on the 11th. MR. SCHMITT: You will have comments and SDP's probably before the 4th of January. If anything, we will distribute before the 4th the revised documents for your review of the SDP's. I can't guarantee we'll have all the comments done by then, but we will try. That's something I'll talk to staff. We need to look at the extent of the reVIew. CHAIRMAN STRAIN: There's your expedited process you were looking for. MR. YOV ANOVICH: Well, here's my concern, is if we get comments from staff that require revisions to the SDP documents, if you want to have those things by January 4th-- CHAIRMAN STRAIN: No. MR. YOV ANOVICH: -- we're going to need some comments pretty soon. CHAIRMAN STRAIN: Richard, no. We're going to get their comments, we're going to take the plans you got today and we'll add our comments to theirs. And if there is need for revision, it will all come out of -- jointly from us and them after the 11th. Let's stop all this going back and forth. MR. YOV ANOVICH: I'm just asking. I mean, I just want to Page 112 December 13, 2007 make sure we meet expectations. CHAIRMAN STRAIN: I think we can get a good gist of what the project is like, based on the plans that we're going to see, subject to the latest revisions. We already have plans that I'm sure are not that different than what you've recently submitted, although just probably cleaned up some. MR. YOV ANOVICH: And I would request, if possible, if you all have an idea of what you would like to see in a definition of passive recreation, if you could e-mail me those comments, it would help us in trying to prepare a definition that we don't have to spend a lot of time debating on the 11 tho That would be helpful to me. CHAIRMAN STRAIN: Okay. MR. YOV ANOVICH: And likewise, green open space. But I thought we were just going to drop that definition and rely on the definition of passive recreation. CHAIRMAN STRAIN: I think that's right. COMMISSIONER VIGLIOTTI: We agreed to that. CHAIRMAN STRAIN: So we're looking at the 11th at 8:30 in these chambers. I'm looking for a motion to continue this meeting till that time. COMMISSIONER ADELSTEIN: So moved. COMMISSIONER VIGLIOTTI: Motion. CHAIRMAN STRAIN: Motion made by Commissioner Adelstein, seconded by Commissioner Vigliotti. Discussion. Mr. Schmitt? MR. SCHMITT: Yeah, I had one question, but that has to do with next week's meeting. If you want to-- CHAIRMAN STRAIN: Well, we can close the meeting and entertain that. So we'll continue this meeting. All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. Page 113 December 13,2007 COMMISSIONER KOLFLAT: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER CARON: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries to the 11th of January at 8:30 in this room. Mr. Schmitt? MR. SCHMITT: Yes, at the beginning of the meeting you brought up about documents that were missing two items. The one item does not have any backup, as I recall. It was a discussion on the TDR's. There were two executive summaries from previous board meetings that were attached. And I believe that was all that's part of that packet. Your staff report and then two copies of executive summaries that went to the board on that same issue. This is more of an item of discussion to receive your input in regards to application of the TDR's for -- CHAIRMAN STRAIN: I ask you to hold it down in here, we're still trying to have a meeting. Thank you. Mr. Schmitt? Okay, that takes care ofE. On F, when are we going to get that petition? MR. SCHMITT: F is the water supply plan. That should go out today. We just received the ORC Report back last week when -- and the contractor and everyone really worked over the weekend to finish that. That should go out today. Ifnot today, you'll get it by sometime tomorrow through delivery. CHAIRMAN STRAIN: Thank you very much, sir. Okay, we're adjourned. Page 114 December 13,2007 ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 12:00 p.m. COLLIER COUNTY PLANNING COMMISSION Mark Strain, Chairman These minutes approved by the board on presented or as corrected as Transcript prepared on behalf of Gregory Reporting Service, Inc., by Cherie' R. Nottingham. Page 115