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CCPC Minutes 01/11/2008 S January 11,2008 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida January 11,2008 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 (absent) 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, Planning Manager Catherine Fabacher, LDC Coordinator Page 1 AGENDA COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, JANUARY 11,2007, IN THE BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDING, COUNTY GOVERNMENT CENTER, 3301 TAMIAMI TRAIL EAST, NAPLES, FLORIDA: NOTE: INDIVIDUAL SPEAKERS WILL BE LIMITED TO 5 MINUTES ON ANY ITEM. INDIVIDUALS SELECTED TO SPEAK ON BEHALF OF AN ORGANIZATION OR GROUP ARE ENCOURAGED AND MAY BE ALLOTTED 10 MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN. PERSONS WISHING TO HAVE WRITTEN OR GRAPHIC MATERIALS INCLUDED IN THE CCPC AGENDA PACKETS MUST SUBMIT SAID MATERIAL A MINIMUM OF 10 DAYS PRIOR TO THE RESPECTIVE PUBLIC HEARING. IN ANY CASE, WRITTEN MATERIALS INTENDED TO BE CONSIDERED BY THE CCPC SHALL BE SUBMITTED TO THE APPROPRIATE COUNTY STAFF A MINIMUM OF SEVEN DAYS PRIOR TO THE PUBLIC HEARING. ALL MATERIAL USED IN PRESENTATIONS BEFORE THE CCPC WILL BECOME A PERMANENT PART OF THE RECORD AND WILL BE A V AILABLE FOR PRESENTATION TO THE BOARD OF COUNTY COMMISSIONERS IF APPLICABLE. ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE CCPC WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. I. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY 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 (BCC) has directed that the Collier County Planning Commission (CCPC) 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: (I) 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 12/13/07 9. OLD BUSINESS 10. NEW BUSINESS II. PUBLIC COMMENT ITEM 12. DISCUSSION OF ADDENDA 13. ADJOURN 1/11/08 CCPC Agenda/RB/sp 1 January 11,2008 CHAIRMAN STRAIN: Good morning, everyone, Welcome to the January 11 th meeting of the Collier County Planning Commission, This is a continuation of a meeting we started last month, last year, on the Cocohatchee settlement agreement that was remanded back to the planning commission by the Board of County Commissioners, And will you all please rise for the Pledge of Allegiance, (Pledge of Allegiance was recited in unison,) CHAIRMAN STRAIN: Okay, will the secretary please take the roll call, Item #2 ROLL CALL BY THE SECRETARY COMMISSIONER CARON: Mr. Kolflat? COMMISSIONER KOLFLA T: Here, COMMISSIONER CARON: Mr. Schiffer? COMMISSIONER SCHIFFER: I'm here, COMMISSIONER CARON: Mr. Midney is absent. Ms, Caron is here, Mr. Strain? CHAIRMAN STRAIN: Here, COMMISSIONER CARON: Mr. Adelstein? COMMISSIONER ADELSTEIN: Here, COMMISSIONER CARON: Mr. Murray? COMMISSIONER MURRAY: Here, COMMISSIONER CARON: And Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Here, Item #3 Page 2 January 11,2008 ADDENDA TO THE AGENDA CHAIRMAN STRAIN: Addenda to the agenda. We only have one item on the agenda today, but there is an item of old or new business, depending on how you want to look at it. I think Mr. Klatzkow has produced a draft of the consent policy, Jeff, is that something that you're prepared to discuss with us today? MR. KLATZKOW: Yes, I'm prepared to discuss it today. I thought we'd do it after Cocohatchee? CHAIRMAN STRAIN: Yes, I just wanted to make sure that it was okay, And then we'll probably close this meeting and reopen the continuation of the LDC Cycle Two to finish up the documents that we got last night that are basically clean-up from Wednesday, So that will take us through today's agenda, Item #5 and Item #6 APPROVAL OF MINUTES - NOT AVAILABLE AT THIS TIME BCC REPORT - RECAPS - NOT AVAILABLE AT THIS TIME CHAIRMAN STRAIN: There are no approval of minutes, recaps, nothing like that. Item #4 PLANNING COMMISSION ABSENCES CHAIRMAN STRAIN: Planning commission absences, Our next regular meeting is next Thursday, The packet went out day before yesterday, so hopefully you'll all get it probably today at the latest, if Page 3 January 11,2008 you already haven't. Everybody intend on planning on being here for that meeting? Okay, Item #8A LODGE ABBOTT ASSOCIATES, LLC (CONTINUED FROM 12/13/2007) FOR THE COCOHA TCHEE BAY PLANNED UNIT DEVELOPMENT SETTLEMENT AGREEMENT CHAIRMAN STRAIN: That will take us into the advertised public hearing, which is the settlement agreement discussion, The last time we started working through a sheet of paragraphs, discussion item by item, some couldn't be discussed because we had received new information that day and we wanted time to read it. Since then, the county attorney, Mr. Klatzkow, has -- or should I call him Mr. Kolflat, I'll figure it out -- has provided us with a draft of his synopsis of the changes that occurred at that meeting to the settlement agreement. And what I'd like to do, unless this board has another suggestion, is to go back to the beginning of that settlement agreement draft that Mr. Klatzkow provided and work our way through that, just simply to acknowledge that there's an agreement between the applicant and us as to the language that's been modified, And once we get past those, we know those are put to bed, we can move on to the things we haven't done. At least we'll just start in order in that agreement. Last thing I would like to ask is a reminder from Mr. Klatzkow as to the purpose of to day's meeting which, again, it was to -- my understanding was that we remanded this from the BCC, specifically look at the settlement agreement and what it entails and its relationship to the former PUD or the current PUD and/or the Land Page 4 January 11,2008 Mr. Klatzkow, any comment on that? MR. KLATZKOW: Yeah, the board directed that the planning commission review the settlement agreement in context of the PUD, the discussions before the board with respect to the settlement, as well as existing Land Development Code regulations, And basically it's just to limit this to the land uses of the development. CHAIRMAN STRAIN: Okay, I just want to make sure that everybody remembers that as we go through, Because there are a lot of issues we could get into but they aren't issues that we were asked to get into, And I really wouldn't want this board to start becoming a-- micromanaging the SDP fine print and stuff like that. We need to look at it in relationship to the settlement agreement. So with that in mind, if you all will turn to the draft settlement agreement that Mr. Klatzkow sent to us, We'll start on Page 1, Everybody have that in front of them? COMMISSIONER MURRAY: Yep, CHAIRMAN STRAIN: Okay, There isn't any changes that are being suggested to Page 1, There's some introductory statements, On Page 2 we have the first changes. Basically the substance of that one is a third whereas clause on the page. There's some strikethrough language, and then the balance of the whereas clause discussing the bald eagle management plan was deferred until such time as today when we get through that plan, Anybody have any problem with the changes made on Page 2? The applicant? MR, YOV ANOVICH: We're okay, COMMISSIONER CARON: Other than it may relate back to this when we discuss the bald eagle management plan, CHAIRMAN STRAIN: Right, that's what I think the note refers to, On Page 3, same reference to the bald eagle management plan, but there's a large strikethrough section. And then a reference in Page 5 January 11, 2008 italicized bold about our recommendation, BCC's final approval of the settlement agreement to take place at a minimum no sooner than the county's issuance of pre approval letters of the subject SDPs, Now, I see that's in here, and I know it's referenced by Mr. Klatzkow, Jeff, is that -- I didn't see the language incorporated into the paragraph, Is that something that's not going to be done until the BCC gets it, or -- MR. KLATZKOW: I think that probably is just a recommendation by the board to the BCC. I think that's how you guys discussed this, CHAIRMAN STRAIN: I just wanted to make sure that whatever -- I understood. Because I went through and found a lot of this bold italicized areas. MR. KLATZKOW: Those are recommendations, not necessarily to the agreement itselfbut to what you would recommend to the board, transmitting the settlement agreement. CHAIRMAN STRAIN: Is there a possibility, so that -- we're going to have to probably come back on this another time, because I know everything isn't here today that can be approved -- that we could have a strikethrough and underlined version with our language incorporated into it? Only because I think if the BCC wanted to see how it fit into the paragraph, and us too, I don't know where or how you'd fit that in, actually, So I'm wondering if that's a productive way to -- MR. KLATZKOW: Again, if instead of making the recommendations to the board you'd prefer it to be within the settlement agreement itself, we can do that. CHAIRMAN STRAIN: Well, if we make the recommendations as a strikethrough and underline, I think it gets the same impact. But then it shows them how it flows into the agreement and shows us too before it goes to them, MR. KLATZKOW: Yes, Page 6 January 11,2008 CHAIRMAN STRAIN: Okay, so that's -- and as far as the strikethrough on Page 3, Ms, Caron, you had a comment, and then Mr. Schmitt. COMMISSIONER CARON: Yeah, I just had a question, Of the SDPs that you have, Mr. Schmitt, are the boat docks on there in any way? MR. SCHMITT: All the boat docks have been removed off the SDP, COMMISSIONER CARON: From all of those numbered -- the three numbered SDPs that are listed here, MR. SCHMITT: Yes, COMMISSIONER CARON: Correct. I just wanted -- CHAIRMAN STRAIN: Those are the ones we have-- MR. SCHMITT: The ones that you have but they're -- COMMISSIONER CARON: I wanted that corrected on -- MR. SCHMITT: There are some boardwalk areas that could be related to future docks that are outside the boundary of the SDP or the construction area, and we've also asked to have those removed as well. So the petitioner's aware of that and is certainly aware that any discussion or any construction related to the boat docks is an argument for another day, I guess, or a petition for another day. CHAIRMAN STRAIN: Okay, Mr. Yovanovich, did you have any objections to the strikethrough language on this page? MR. YOV ANOVICH: We're talking about revisions to paragraph three? CHAIRMAN STRAIN: That's correct. MR. YOV ANOVICH: No, no objection, MR. SCHMITT: Mr. Chairman? CHAIRMAN STRAIN: Yes, sir. MR. SCHMITT: If I could, if you could just make a note, you discussed about strikethrough and underlined version of the PUD, that we get specific guidance for the next meeting, So if you could just Page 7 January 11,2008 make that, we'll cover that at the end of the meeting. I don't want to digress now, but I want to make sure we meet your needs and your requirements as to what you want. CHAIRMAN STRAIN: I had it as a note and I appreciate you reminding me, because at some point today we all need to discuss the best way in which this could be portrayed. I think what Mr. Schmitt is talking about is we typically see a strikethrough and underlined of a PUD so that when the recordation occurs staff has got a PUD ordinance number to go to and not have to realize there's a settlement agreement out there somewhere that's not in line with an ordinance number of a PUD, Otherwise, it will be like another Stevie Tomatoes or something else where the meaning and context gets lost because all the documents are not readily available, MR. SCHMITT: I just heard you mention that, and I want to make sure that's on an item to discuss, CHAIRMAN STRAIN: Yes, sir. MR, SCHMITT: Thank you. CHAIRMAN STRAIN: Okay, we're on to Page 4, COMMISSIONER SCHIFFER: Mark, before we -- CHAIRMAN STRAIN: Yes, sir, Mr. Schiffer, and then we'll go back to -- COMMISSIONER SCHIFFER: At the last meeting, we were referenced that there were resubmitted SDPs, The only thing I got were some eight-and-a-halfby Ils showing some changes that were made to the SDP, Does that reflect what was in the resubmitted SDPs? MR. SCHMITT: Basically, what you have is what we received, We have not received amendments, and we need to discuss that also at the end of this meeting as to how you wish to proceed, The applicant has a list of, I'll call them rejection notes, and I think it's the expectation of the applicant and, as of now, staff as well, is that that list, they will take and make all the needed corrections, And I guess hope is a method here, hopefully that will conclude and Page 8 January 11,2008 meet all the requirements for both staff and, I'll call it your review that you're conducting for the board, CHAIRMAN STRAIN: Well, I think what we would want to do, since the SDPs are referenced as into this agreement, once the SDPs respond to what occurs today and what had occurred at the last meeting in response to staffs questions, and everything is consistent and understood, we ought to be issued the final, final set, subject to anything that's in the settlement agreement. Because obviously the staff cannot approve items in the SDPs that are subject to the settlement agreement until the settlement agreement is approved, So I think we'll at the minimum have another meeting, It may be a short meeting, but just to make sure that the final SDP has the consistency that everybody was told and thought it would have pursuant to today's meeting, So that's a clean-up item I thought we would want to go through at least, and any lingering items after today's meeting that are still outstanding, Okay, on Page 4, MR. YOV ANOVICH: I'm sorry, Mr. Chairman, I did have a revision on Page 3, It's to paragraph four, It's in paragraph four. You'll see it says, in instance the substantial amendment to the EIS, It should be a substantial amendment to the SDP, Because it's a change to the SDP that triggers the need to do another EIS, CHAIRMAN STRAIN: Just a second, let me read that paragraph then, Richard, Well, I think this is the problem that I discussed last time, If you have a -- if you limit your substantial amendments to an SDP only to those wetland impacts, then all the other triggers for a substantial amendment to the SDP don't kick in, And that was a concern, because there's a whole -- I provided a list of them in that paper I passed out. You see item five, Page 9 January 11,2008 And I don't know if you've looked at that since the last meeting, but I think that was the basis that we discussed this paragraph on, And I don't think we can allow only a change to the wetland impacts of an EIS, or the wetland impacts to be the sole reason to trigger a substantial amendment to the SDP, Now, we discussed this last time, I didn't think there was a problem with it. I thought -- Mr. Klatzkow? MR. KLATZKOW: I can fix that. If you added language starting with F in the fourth line after substantially amended, you could say with respect to the sole instance a substantial amendment to the SDP shall remain, And that just limits it to the EIS issue, MR. YOV ANOVICH: Right. Mr. Strain, my understanding was we're not trying to get out of what triggers an SDP amendment. We understand that there could be other things beyond impacting wetlands, What we're talking about in this paragraph is unless we do more impact of wetlands, the EIS we did in which all these SDPs have been approved doesn't have to be amended, It's just an EIS paragraph, not an SDP paragraph, CHAIRMAN STRAIN: I understand that. I just wanted to make sure, because it was a separate sentence and it didn't seem to be as closely tied to the EIS, that someone couldn't construe it to mean more than what the intent was, And I asked for clarification, And I think the clarification that got here may not have moved it into the right direction, But Mr. Klatzkow is suggesting some others, and maybe before -- and Mr. Murray, you had something? I'm sorry, COMMISSIONER MURRAY: Swearing in? CHAIRMAN STRAIN: I don't think so, but I'll ask. Do you have a comment, Ms. Caron? COMMISSIONER CARON: I was going to say, I think it does exactly that, the way it's stated now, Mr. Y ovanovich, doesn't it? MR. YOV ANOVICH: No, because we don't amend the EIS, we Page 10 January 11,2008 amend the SDP by moving things around. Let me read some language, and maybe this will make it clear. This is the sentence we would add, The existing environmental impact statement does not need to be amended unless the SDPs are revised to increase wetland impacts beyond the impact currently permitted by the South Florida Water Management District and the U,S, Army Corps of Engineers by more than five percent. CHAIRMAN STRAIN: That gets it. COMMISSIONER CARON: Yeah, read it one more time, And do you have it to put up? Because I think you may actually have it. CHAIRMAN STRAIN: Jeff, this isn't -- I don't believe this is quasi-judicial. Do we need any swearing in for this meeting? COMMISSIONER MURRAY : You did the last time, CHAIRMAN STRAIN: Did we? No? MR. KLATZKOW: No, it's not quasi-judicial. CHAIRMAN STRAIN: Do you remember if we did last time or not? Did we? COMMISSIONER CARON: It involves a legal settlement agreement, why wouldn't we do it? CHAIRMAN STRAIN: Well, then we will. As soon as we get done with this question we'll ask Cherie' to swear everybody in. MR. YOV ANOVICH: I would have assumed, since this is a continuation, our oath was still continued, yeah, COMMISSIONER CARON: You're still swearing, MR. YOV ANOVICH: Yeah, we're still under oath, as a judge would say, CHAIRMAN STRAIN: Okay, if that's legally binding, we'll just ask people if they have comments besides those that may have been here the first time, if they were sworn in the first time. MR. YOV ANOVICH: I don't know if you all can read that, but let me read it again just so everybody can, The existing environmental impact statement, EIS, does not need to be amended unless the SDPs Page 11 January 11, 2008 are revised to increase wetland impact beyond the impact currently permitted by the South Florida Water Management District and the U,S, Army Corps of Engineers by more than five percent. So that will make it very clear it's just the EIS we're addressing in this paragraph, CHAIRMAN STRAIN: I think that's works. Does anybody else have any concerns? COMMISSIONER CARON: No, CHAIRMAN STRAIN: So the applicant accepts it, staff -- and the panel accepts it. No other comments, that one will be added, Okay, we're on Page 4. There's an italicized reference, And I think that needs -- as Jeff had indicated earlier, that will now be incorporated into specific language as a strikethrough and underline, And on paragraph six, there's a change, a strikethrough and an addition, Anybody have any concerns, questions about that? (No response.) CHAIRMAN STRAIN: The applicant? MR. YOV ANOVICH: I had suggested and said of the approval, use the word execution by the parties, CHAIRMAN STRAIN: Well, isn't-- MR, YOV ANOVICH: Until the board signs it, it's not really approved. And if they're -- so that's -- CHAIRMAN STRAIN: So ifit says the approval-- MR. YOV ANOVICH: I didn't want anybody to say Rich, your clock ran on the date the board motioned to approve, and it took them 10 days later to sign it. Not that it takes that long, we just wanted to make sure that the clock starts when the board signs the agreement, if that's acceptable, CHAIRMAN STRAIN: I don't have a problem with that. Basically it says within 15 days of the execution of the settlement agreement. Is that -- MR. YOV ANOVICH: That's fine. Page 12 January 11,2008 CHAIRMAN STRAIN: Jeff, did you follow that? MR. KLATZKOW: Yeah, he wants execution instead of settlement agreement. CHAIRMAN STRAIN: Instead of approval. MR, KLATZKOW: I don't know that there's a difference, and I don't fight when there's no difference, CHAIRMAN STRAIN: That's reasonable, I would say. So 4 is okay with everybody, Let's move on to Page 5, paragraph seven at the top of the page, same kind of issue, I'm assuming that the reference to the approval there will be until the execution of this agreement would be filled in? Is that -- Richard? MR. YOV ANOVICH: Yeah, One suggestion might be at the end put a standard effective date paragraph, And then just we'll put any references there to the effective date, if that's acceptable to Mr. Klatzkow, MR. KLA TZKOW: I put a standard paragraph in all my settlement agreements that this agreement will be effective as of board approval, which is going to be at the board meeting, that date, MR, YOV ANOVICH: Well, I would change the date to board execution of the settlement -- MR. KLATZKOW: That's right, that will be the execution date, CHAIRMAN STRAIN: Right, okay. MR. YOV ANOVICH: Then we could take care of all of those, everything will move from that point. CHAIRMAN STRAIN: On paragraph eight, this is changes we talked about last time, Doesn't include some -- the italicized changes that are noted below, but we'll get another draft that will reflect that. Everybody in concurrence with the changes that are already in eight, the highlighted underlined changes so far? (No response,) CHAIRMAN STRAIN: Richard? Page 13 January 11,2008 MR. YOV ANOVICH: Nope. CHAIRMAN STRAIN: You're not in agreement or you're okay? MR. YOV ANOVICH: We're okay, COMMISSIONER CARON: Is -- CHAIRMAN STRAIN: Ms, Caron? COMMISSIONER CARON: This paragraph we're talking about number eight? CHAIRMAN STRAIN: Yes, COMMISSIONER CARON: Is this where we should start the discussion on passive uses? CHAIRMAN STRAIN: That does -- on the bottom of the page under the highlighted section, yes, that begins the discussion of passive uses and continues on to Page 6, So basically I believe we received a document listing all the passive uses suggested by the applicant. And I also know there was an e-mail around suggesting that the development standards used for those passive recreational uses were those of 5.4 of the PUD. MR. YOV ANOVICH: Correct. CHAIRMAN STRAIN: Okay, So based on those two things, that's how we should be looking at the issues included in passive recreational uses, Any comments -- Mr. Schmitt? MR. SCHMITT: My only concern on that is the term passive recreation areas. I think we already have in the LDC -- and I'm not sure, I'm looking back at Bill and Barbara -- we have something called passive recreation, And I do not want to make -- I want to make sure there's no confusion or -- because passive recreation is entirely different in the LDC. It's basically walking paths and very, I'll call it, low intensity type of recreational activities, And that list included many activities which are beyond what we would call passive recreation. So I'm concerned about using that word, Page 14 January 11,2008 Also, there are residential units in this portion of the PUD, and I think we need to add residential units to that list. Bill, do you have any comments on -- or Barbara? I don't -- I would really prefer we call -- and I got into this discussion last time, I'd prefer we find some other word for that. Call it uses outside or in the designated golf course area or whatever. CHAIRMAN STRAIN: Ms, Caron? MR. SCHMITT: If you could indulge the staff on this one. CHAIRMAN STRAIN: We've got more to go on it, so -- we've got a lot of discussion on this before this gets over. Ms, Caron had a question before Barbara, COMMISSIONER CARON: Currently in the PUD it says passive parks and passive recreation areas, That's language -- and boardwalks, out of the current PUD, MR. SCHMITT: And I'm fine with calling it that, as long as I specify what it means for this specific PUD -- COMMISSIONER CARON: Exactly, MR. SCHMITT: -- and that it doesn't conflict with any other interpretation of passive recreation areas as used in the GMP. COMMISSIONER CARON: And that's my question, is what are we considering and have we always considered to be passive recreation and passive park uses? MR. SCHMITT: Let me turn to Barbara on that. MS, BURGESON: For the record, Barbara Burgeson with engineering and environmental services, The definition that's in the Land Development Code that identifies passive recreation as really just nature trails, preserve areas, wildlife sanctuaries, things with -- that allow pervious trails through paths, bird watching, things of that nature, has always been the staffs interpretation of passive uses of an area, passive recreational uses, which is why when we put that language in the LDC that's how we wrote that out. Page 15 January 11,2008 But one of the things I was concerned about, clearly the list here of passive recreational uses goes substantially beyond anything at all that we have or would ever have intended passive recreational uses to be, So I was looking at this language and would suggest that instead of calling that list passive recreational uses that you call that acceptable alternate uses outside the platted boundary of the gopher tortoise preserve, Because you're still going to have a platted gopher tortoise preserve that is not a passive recreational area, And these things would not be permitted within the boundary of the gopher tortoise preserve, CHAIRMAN STRAIN: Do you have the definition of the LDC that we could see? MR. SCHMITT: I don't have it. I'm looking it up on Municode right now, So I can read it as soon as I get to it. CHAIRMAN STRAIN: I'll be to it before you are, I'm scrolling down now, Joe, Okay, it's not in the definitions section, So where did we hide it? MR. YOV ANOVICH: I'm not sure there's one that exists today, I think there's one going through the process, CHAIRMAN STRAIN: I just heard that there is a definition for passive recreation, So now I want to see it. Otherwise, why were we told there was one? MR. SCHMITT: Barbara, is there an amendment proposal for passive recreation? MS. BURGESON: I know that we have a definition, and I thought it was in the LDC. I thought it -- maybe it's in the GMP or the Land Development Code, But we've been working on a definition for passive recreational uses, CHAIRMAN STRAIN: Well, lacking that here today, we don't have a definition, MR. SCHMITT: We don't. It was -- Page 16 January 11,2008 MS, BURGESON: I thought we had that in the last LDC cycle-- MR. SCHMITT: We did, but -- CHAIRMAN STRAIN: You guys can't talk over one another. MS. BURGESON: It wouldn't be in the current Municode, because it wouldn't have been up on the web site yet. So let me call back to Catherine and see if I can get a -- MR. SCHMITT: I believe we discussed it, and that recommendation was withdrawn during the last cycle, I believe, It's not in the Municode, MR. KLATZKOW: That's my recollection as well, MR. SCHMITT: Yeah, that we got into a discussion on passive recreation and the definition was withdrawn, MS, BURGESON: I'll check the GMP, if it's in there, CHAIRMAN STRAIN: Okay, now, lacking the fact there is no definition, we need to approach this in that manner. So this is a project that's going to stand on its own, This listing will only apply to this project, just like we look at other uses in a project that are in a commercial area and they're offensive to us, if there are issues here that are problematic, we need to put them on the table and discuss it. I mean, boardwalks, bicycle paths, environmental uses, flower beds, golf cart paths, I mean, where on this list -- there are some I think might be problematic, But let's start with the rest of you. Is there an issue on this list that bothers anybody? MR. YOV ANOVICH: Can I just tell you where we started from? CHAIRMAN STRAIN: Sure, MR, YOV ANOVICH: Because where we started from was if the golf course goes away, what uses would be acceptable to the neighbors around us, keeping in mind we could have two residences and/or these types of uses adjacent to them, And we looked at uses that we believed were not noise generators, if you will, as far as what Page 17 January 11,2008 would be passive, And that's why -- you know, hopefully that's the context in which we're going to review this, because we believe that was the concerns of the neighbors, is having a lot of people around them making a lot of noise, CHAIRMAN STRAIN: And I agree with you, Ms, Caron? COMMISSIONER CARON: Well, let's go down to water parks, If you really want fountains, say fountains, but don't say water parks, Otherwise I'm looking at North Naples -- MR. YOV ANOVICH: That's why we tried to clarify that, by saying the fountains and pathways, If you want to put fountains and pathways -- for instance, the county has -- I don't even know what they're calling on Goodlette-Frank Road, you know the -- now as you're heading on Golden Gate Parkway, you have that off-ramp, if you will, that gets you onto Goodlette-Frank Road, I think the county calls that a water park. COMMISSIONER MURRAY: Water park. MR. YOV ANOVICH: They call it a water park. And that's clearly a passive water park. And that's what we were intending, distinguished clearly from the North Naples Regional Park where you have those water features, So we -- you know, CHAIRMAN STRAIN: Well, Richard, let's -- I certainly agree with Ms, Caron that that term is too encompassing, But let's start from the top, we'll work our way through each one, because there may be others with more questions and I want to make sure that everybody acknowledges that every one of these is what we intended, Boardwalks. Anybody have a problem with boardwalks? (No response,) CHAIRMAN STRAIN: Bicycle paths? (No response.) Page 18 January 11,2008 CHAIRMAN STRAIN: Environmental uses, parentheses, wetlands and conservation areas? (No response,) CHAIRMAN STRAIN: Flower beds? (No response,) CHAIRMAN STRAIN: Golf cart paths? (No response,) CHAIRMAN STRAIN: Pathways and/or bridges? (No response,) CHAIRMAN STRAIN: Handicap ramps? (No response,) CHAIRMAN STRAIN: Equestrian uses and trails? (No response,) CHAIRMAN STRAIN: Fitness trails and shelters? (No response,) CHAIRMAN STRAIN: Hiking and nature trails? (No response.) CHAIRMAN STRAIN: Open space drainage systems? Now, Richard, I had a question on that one, Open space drainage systems require a lot of clearing, excavating, and they're basically a lot of wide expansive open space, What would you -- I can't imagine you would want open space drainage systems there for anything but to service the uses on that property. COMMISSIONER MURRAY: Yeah, CHAIRMAN STRAIN: And I would want to make sure you're limited to that so you're not clearing a lot of area to create drainage systems for other areas that could have higher intensity, MR. YOV ANOVICH: I'm checking with the engineer to make sure that whatever lakes are going to be on that side of the road are not necessarily serving just that side of the road, I don't know, Page 19 January 11,2008 CHAIRMAN STRAIN: So-- MR. YOV ANOVICH: Some of those drainage lakes and drainage facilities will be serving our properties to the north, Not us, but off-site properties to the north, drainage that's coming through the site today, So it's not just limited to -- after we build a golf course, it's not limited just to the golf course, CHAIRMAN STRAIN: So you're accepting drainage from some off-site properties? MR. YOV ANOVICH: We have to if it passes through the property , And also, those are uses that are already in the preserve district. CHAIRMAN STRAIN: I know that, but what happens is if the golf course goes away and this becomes -- I just don't want you providing some commercially usable open space for drainage that other projects could use to an extent that goes beyond what would normally be used in that area, And that's my only concern, I'm looking at worst case scenario, If you had said excavation for fill, I would want to make sure it was fill only to the extent needed on that property and things like that. It's the same kind of scenario, MR. YOV ANOVICH: I think it needs to be related to the permitting of our project. CHAIRMAN STRAIN: Required for the permitting of the project, how's that? COMMISSIONER MURRAY: That qualifies it. MR. YOV ANOVICH: Yes, as we need for the permitting of our project. COMMISSIONER MURRAY: Good qualification, MR. YOV ANOVICH: It certainly wasn't intended to provide drainage for any vacant parcels around us. CHAIRMAN STRAIN: Okay. Next one is parking lots, Ms, Caron? COMMISSIONER CARON: Yeah, somehow we need to define Page 20 January 11,2008 that. I mean, I understand that if you decide to do a canoe dock here that you're going to want to have some parking or you will be required to have some parking, However, this should not -- this -- somehow it's got to be defined so we don't end up with a parking garage or a parking structures or the entire thing as a parking lot. MR. YOV ANOVICH: How about parking lots for any use within this section? COMMISSIONER CARON: Well, I mean, our next one is playgrounds, So -- MR. YOV ANOVICH: Ifwe need a parking lot for the playground, it would be an allowed use, by way of example, COMMISSIONER CARON: So there will be no limit on this playground, This entire parcel could become a playground with associated parking? That's hardly what green open space was to the community, Again, I'm getting back to what you talked to the community about, was green open space, not a series of jungle gyms with associated parking, I mean -- CHAIRMAN STRAIN: Why don't we just strike playgrounds and that solves the problem. MR. YOV ANOVICH: I'm sorry? CHAIRMAN STRAIN: Why don't we strike playgrounds, We hadn't gotten to that one yet, but I -- MR. YOV ANOVICH: That's fine, The first time we've ever been told not to provide facilities to children that might utilize the project, but we'll strike that. COMMISSIONER CARON: Mr. Y ovanovich, please don't be flippant about this -- MR. YOV ANOVICH: I didn't mean to be, I apologize. COMMISSIONER CARON: -- I am concerned about this, because you have not a small little corner of a PUD that you're going to stick a jungle gym on, we are talking now about a golf course Page 21 January 11,2008 property, And ifit goes away, then you have -- you're trying to get rights for other things, So let's get back to the -- MR. YOV ANOVICH: I apologize, I apologize, CHAIRMAN STRAIN: We're down the list, we're on parking lots, The applicant's agreed to limit the parking lots for any use within this section, The playgrounds were pointed out as a concern for parking lots, They've agreed to strike playgrounds. Is that okay with everybody? Mr. Murray? COMMISSIONER MURRAY: Not that I have an expectation you'd have all of these elements in the same time, These are, I would think, pick and choose type of things, But let's say for the sake of argument you had a lot of these things, a lot, or maybe all, You'd have to have parking to facilitate each one of those, Wouldn't that be a significant amount of parking in open space that you intend? Did I make myself clear to you, sir? MR. YOV ANOVICH: Yes, I understand, Ifwe have these uses, whatever the code requires for parking we'll have to provide for parking -- COMMISSIONER MURRAY: In sum then, if the totality of these uses were all expected to be there, we'd have a heck of a lot of parking, I would think. Is that your intent, do you think, to have all of these uses simultaneously? MR. YOV ANOVICH: I don't think we're going to fit all of these uses on the property. This is a laundry list of things that might happen on the piece of property, I don't think this is going to be a wall-to-wall developed piece of property which will result in a huge parking area built on that particular piece of property, And we're talking about what are the potential passive uses on this piece of property, And in response, and I apologize for the way I phrased it, I never envisioned that this 100 or 100-plus-acre parcel of Page 22 January 11,2008 property would be 100 percent playground, even though that's a list on there, nor do I expect it to be 100 percent sidewalk. That's the kind -- I think there will be these -- there were going to be some small playground areas, We struck that. But yes, there might be some. Let's look through the list that might require parking area -- CHAIRMAN STRAIN: Richard, before we go too far, let's try-- maybe we can put this in a better perspective. Whatever you put on this property, you don't have the ability to open it up to the public and make a commercial enterprise out of it. So the only way you're going to recoup any income off this is for it to be an amenity to the people who buy in these five high-rises. High-rises, I expect, are not going to be cheap, You've got I don't know how many units now, 580 or something like that. So where would the monetary incentive be for you to create units and facilities here greater than what could be used for those five towers? Would you be limiting the use of this property -- it is limited to what's part of the project. So it would have to be limited to the towers across the street. MR. YOV ANOVICH: Well, the only real example -- remember, the golf course isn't just limited to the 590 units, We could have members who are outside of that 590 units, The only one I could think that might be open to the public and not an amenity purely to the residential is an equestrian center, okay, So I don't want to mislead the planning commission to say that the equestrian center would be just for the 590, I believe it is, condominium units, But again, that is a -- remember, this is a big piece of property that is going to still be green, you know, You might have a barn with some horses in it and people from the general public coming to use that equestrian center. But it's -- you know, it could be a good use for the property, CHAIRMAN STRAIN: Ms, Caron? Page 23 January 11,2008 COMMISSIONER CARON: Yeah, please understand that if this golf course fails, this developer still owns that golf course, They can, if we don't get the right covenants on this piece of property, sell it for an equestrian center. They don't have to sell it for an amenity to the five towers, They don't have to use it for an amenity for the five towers, So this list is extremely important. It is not as simple as saying no matter what happens these -- the uses will only affect the five towers, CHAIRMAN STRAIN: I was asking the question, I was not -- I wanted to understand the application, And I think he provided me the answer for that, which you're now expounding on. Mr. Murray? COMMISSIONER MURRAY: Just continuing on that vein, As you envisioned it, as an example, and I'm not trying to pin you down, but would that be a club membership to an equestrian activity, or does it become a commercial activity? And I know you're trying to answer a general question with some examples, I'm not trying to pin you down too far. MR. YOV ANOVICH: The answer is I don't know how we'll have access to that. But keep in mind, this is a use that you find in places in the urban area, They're going away, but you do find places in the urban area, for instance, in the Pine Ridge community. If you go up Goodlette-Frank Road and you take the first left in, you'll see two smaller equestrian centers that, you know, you have barns, you have horses stabled there, and it's -- I think they rent out the stables, but I don't know ifthere's a membership club. I used to take my kids riding there, But we envision something like that. Obviously we have more acreage than those five-acre parcels, So we envision something like that, that if the golf course doesn't work, what would be an appropriate mechanism for the owner of that property to recover some of his Page 24 January 11,2008 investment in that land, COMMISSIONER MURRAY: Okay, But remember, we started out with the idea of parking, And so it's important to think about what the implications of that might be if you're going to open it up to everybody to come and ride horses, So I guess that we should revert to the aspect of parking then, I suppose, CHAIRMAN STRAIN: Well, that's where we left off, on parking. But it looks like there's a question now on the equestrian uses and trails, Are there concerns in that regard? COMMISSIONER VIGLIOTTI: I think it's a good idea, personally, COMMISSIONER MURRAY: I don't have a problem with it, as long as the parking doesn't become excessive. CHAIRMAN STRAIN: Mr, Murray, you're making a lot of statements, If you have something you want to define, throw it on the table, let's talk about it then, If you've got a concern about the parking, how would you suggest limiting it? COMMISSIONER MURRAY: Well, I think I can make remarks about things, so maybe I'm thinking out loud, too, But how would I -- CHAIRMAN STRAIN: You should make remarks, All I'm saying is if you have a concern, let's not pass it by, let's get it over with so we don't afterwards say well, you know, we didn't mean that. COMMISSIONER MURRAY: I'm not necessarily in a position to be able to make that determination right now, because I'm looking at these things and I'm saying if we -- perhaps the best approach might be a percentage. I don't know, This is an issue that I think bears some qualification, and I'm not necessarily competent to do that right now, CHAIRMAN STRAIN: Mr. Vigliotti, then Ms. Caron, COMMISSIONER VIGLIOTTI: Ifwe allow them certain uses with the property if the golf course goes away, they're going to need some parking related to the specific uses as required, I don't think that Page 25 January 11,2008 it makes sense then to put a parking lot larger than what's required for their specific uses, If they do put an equestrian center up, whatever the LDC requires as parking spaces required, that's what they'll put. They'll put the minimum, I'm sure, CHAIRMAN STRAIN: Then it would be parking lots as acquired by code for any use within this section, COMMISSIONER VIGLIOTTI: Perfect. Thank you, CHAIRMAN STRAIN: Ms, Caron? COMMISSIONER CARON: Well, actually, let's get back to the actual paragraph eight. And what paragraph eight says is that the residential -- sorry, the golf course shall remain forever as green open space and be limited in perpetuity to the uses expressly allowed in paragraph 5,3, And that's what we started out talking about were the uses listed in 5,3, MR. YOV ANOVICH: Right. COMMISSIONER CARON: And now we're expanding on them well beyond what is listed in 5,3, CHAIRMAN STRAIN: Richard, wait a minute, No, the reason this got into the question we're now getting into is we talked specifically about that last time, And under 5.3,A, principal uses one, it says passive parks and passive recreational areas, boardwalks, And I made notes, and it says what is considered passive, And that's what we're trying to answer here today, what is meant in 5,3,A.l that says passive parks and passive recreational areas, There is no definition, we discovered, We've asked for a definition so we could do just what we're doing today, is discuss it. If some of these are objectionable, let's strike them, COMMISSIONER CARON: While equestrian uses may be granted, I don't see them as passive, I'm not saying that they shouldn't be allowed, but I certainly don't see them as passive, But -- CHAIRMAN STRAIN: Well, I mean, I guess that's in the eyes Page 26 January 11,2008 of the beholder. I'm not saying you're right or wrong, but I can tell you for sure, I know there's other people that would consider riding a horse on a quiet trail in the woods being passive, So -- COMMISSIONER VIGLIOTTI: We're not talking about a two-acre piece, This is a 100-acre piece, CHAIRMAN STRAIN: Right. Why don't we look at this in the light of what's going to -- which one of these uses, regardless of whether we think individually it's passive or not, could harm the neighborhood against the intent of which this whole thing started out. So in that light -- COMMISSIONER MURRAY: Process of elimination, CHAIRMAN STRAIN: In that light, let's keep moving down, First of all, is everybody content that equestrian uses and trails would not be negatively impacting to the neighborhood? Are we there -- we passed that one, COMMISSIONER SCHIFFER: I'm out. CHAIRMAN STRAIN: Okay, Then we're all the way down to parking lots, And we've already suggested that we limit the parking lots to that as required by code for the specific uses within this particular section, COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER SCHIFFER: Statement. Could we just stay supporting the existing uses? Because here's the thing, is that the code has a requirement. A good designer would actually add a little more than the requirement. So I wouldn't want them to be restrained from being able to do that. So can't we word it just to support the uses on the site only? CHAIRMAN STRAIN: And then we get into an ambiguous term when you go out past the code, what is support, Someone might say that 200 spaces or more support when the code requires 100, Would that be acceptable? Page 27 January 11,2008 COMMISSIONER SCHIFFER: Doesn't the code have in there that if you put so much parking past the required amount you have to get the approval of the administrator or something? There is something in the code to that effect. CHAIRMAN STRAIN: Yes, there is a-- COMMISSIONER SCHIFFER: So I think that's kind of what that's intending to do is somebody to build a hot dog stand and have 500 cars and running a -- CHAIRMAN STRAIN: But I only think it kicks in when you get to a high number of spaces, I remember that being added years ago. I was not on the planning commission but -- COMMISSIONER SCHIFFER: But my concern is that if somebody prudently wants to add a couple more parking places, I wouldn't want that clause to restrict them. CHAIRMAN STRAIN: Anybody else on the panel have a concern over changing the word from requirements of the code to parking to support the uses within this section? Ms, Caron? COMMISSIONER CARON: Why don't you say required by code to support the use, CHAIRMAN STRAIN: But then we're right back to what Brad is now objecting to, So it's either -- Brad wants to take out the part required by code because he feels that design-wise somebody may want to have more parking spaces because the code is a minimum, Does anybody else have any comments on that or objections to it? COMMISSIONER MURRAY: Yeah, could that not also be less than the parking that they would be required -- COMMISSIONER CARON: No, you've got to have the mInImUm -- COMMISSIONER MURRAY: So it's a minimum of and it could be better. I suppose in this particular thing it's fine. Page 28 January 11, 2008 CHAIRMAN STRAIN: Any other concerns? COMMISSIONER SCHIFFER: No, CHAIRMAN STRAIN: Then the parking will be in support of any use within this section, Playgrounds, Any concerns about the playgrounds, Mr. Schiffer? COMMISSIONER SCHIFFER: Well, I like the fact that they have them, so can't we just waylay Donna's concern, just limit a cumulative area of, let's say, two acres or something? Meaning that if they spot them all over the site you can't add up more than two acres of it. COMMISSIONER VIGLIOTTI: Maximum two acres, CHAIRMAN STRAIN: Anybody have any problem with that? COMMISSIONER SCHIFFER: The kids don't have a voice on this committee, COMMISSIONER VIGLIOTTI: Maximum two acres, total, correct? CHAIRMAN STRAIN: Mr. Vigliotti, yes. COMMISSIONER CARON: Yeah, CHAIRMAN STRAIN: Sidewalks? Tree surrounds? COMMISSIONER SCHIFFER: What exactly is a tree surround, Mark? I imagine a little rock wall with a couple of trees coming out of it. CHAIRMAN STRAIN: Well, we're dealing with a lot of things that don't have definitions, so -- you want a tree surround, Richard? COMMISSIONER SCHIFFER: What is it? COMMISSIONER MURRAY: Yeah, that would be good to know, CHAIRMAN STRAIN: Guys, you're going to have to wait to be recognized because it's too hard for the court reporter to take our names down when we talk without being recognized. So please, MR. YOV ANOVICH: You know, let's just take it out, because I Page 29 January 11,2008 don't really know what it means either, CHAIRMAN STRAIN: Underground drainage? (No response,) CHAIRMAN STRAIN: Water parks we already talked about. Basically we have pathways up above, so water parks would be substituted with fountains, Is that fine with everyone? MR. YOV ANOVICH: Yes, sir. Am I striking pathways here? CHAIRMAN STRAIN: Right, because it's up above, Lakes, Got to have lakes for water drainage, Everybody okay with that? (No response.) CHAIRMAN STRAIN: Boat, non-motorized, and canoe docks? Anybody -- COMMISSIONER MURRAY: Kayak. CHAIRMAN STRAIN: Mr. Murray, did you have a comment? COMMISSIONER MURRA Y: And kayak. CHAIRMAN STRAIN: Fishing piers? (No response,) CHAIRMAN STRAIN: Guardhouses, gate houses and access control structures? (No response,) CHAIRMAN STRAIN: And this one's a beauty, community and neighborhood passive parks. Would you please define passive parks? I mean, you're putting right back in the definition that we're looking to define, MR. YOV ANOVICH: Honestly, if you look at A.l, the first word is passive parks, and we weren't asked to define that one, so we thought everybody was comfortable with what a passive park was, it was recreational uses. CHAIRMAN STRAIN: Okay, then it's community neighborhood parks, passive parks with passive recreational uses subject to this section. Page 30 January 11, 2008 MR. YOV ANOVICH: Yes, COMMISSIONER MURRAY: Mr. Chairman? CHAIRMAN STRAIN: Yes, sir, Mr. Murray, COMMISSIONER MURRAY: Wouldn't a community park -- I think that has a designation that Parks and Recreation uses for community parks. MR. YOV ANOVICH: Those are size issues, they're not use issues, What we were saying -- let's say for instance we decide to give this area to the county as a passive park, and the county wants to take it. Do we have to go amend the PUD to have a community or neighborhood passive park open up to the general public? That was the intent. It's still going to be a passive park. COMMISSIONER MURRAY: I didn't think you wanted to open it up to the community in general. MR. YOV ANOVICH: Again, we're looking for alternatives that can happen in the future, County says they love this area as a passive park. CHAIRMAN STRAIN: Let me read the park neighborhood, which is one of the items here. A public park owned and maintained by Collier County which is intended to serve the needs of the local community and is located within the Estates zoning district or any residential zoning district or residential component of a PUD, is comprised of no more than five acres of land, access to which is provided through non-vehicular means, with no on-site parking facilities, provides only basic park facilities and amenities such as but not limited to sidewalks, non-air conditioned shelters, bike racks, drinking fountains and playground equipment. So if you were to do a neighborhood passive park, you would have to limit it to that definition section, I would assume, Is that acceptable? MR. YOV ANOVICH: Yes, sir. Page 3 1 January 11,2008 CHAIRMAN STRAIN: Gazebos? COMMISSIONER MURRAY: Those are nice. CHAIRMAN STRAIN: Picnic areas? (No response,) CHAIRMAN STRAIN: Wildlife sanctuary? (No response,) CHAIRMAN STRAIN: Recreational shelters and preserve upland areas? Mr. Kolflat? COMMISSIONER KOLFLAT: Would this be something similar to what we saw on Keewaydin Island some time ago? CHAIRMAN STRAIN: Could be, COMMISSIONER KOLFLA T: Could be, CHAIRMAN STRAIN: They wouldn't need the shuttle, though, COMMISSIONER KOLFLAT: No, COMMISSIONER CARON: I'm sure the county will come up with a plan for a shuttle, CHAIRMAN STRAIN: Recreational shelters and preserve upland areas? (No response,) CHAIRMAN STRAIN: Drainage and water management facilities as may be required by South Florida Water Management District? (No response,) CHAIRMAN STRAIN: Motorized devices required by physically impaired individuals? (No response,) CHAIRMAN STRAIN: And restroom facilities? (No response,) CHAIRMAN STRAIN: That's the list. We're done with it. Everybody seemed to accept it as we've modified it. The applicant, are you satisfied with it as we -- I don't care if Page 32 January 11,2008 you're satisfied, do you accept it as we modified it? MR. YOV ANOVICH: Aren't those one and the same? Yes, CHAIRMAN STRAIN: Okay, We're done with the passive recreation issue that started on Page 5 and carried over to Page 6, We'll go back to Page 6, Oh, there is another one on Page 5 that's -- the same part of the italicized section we just discussed, Determine whether the definitions affect the term green open space, which we did, And two, establish a maximum lot size for a residential unit. And I think we have some single-family criteria that was provided to us in which is a listing of development standards for single-family -- the two single-family units that would be allowed on that side of the project. Is this the appropriate time that it fits into the settlement agreement? I guess it is right here? Okay, you all should have received two pages, one titled Single- family Criteria, and one with a box on it laying out the single-family development standards with some footnotes, I think we ought to go to those and discuss them and see if anything there is objectionable, COMMISSIONER CARON: They're all minimums, they're not maximums, I can't find it yet, but I do remember that. CHAIRMAN STRAIN: That's it. Let's start with the page that says Single-family Criteria on it. It talks about the types of uses and accessory uses, both principal and accessory, that can be utilized, Are there any concerns with that particular page? (No response,) CHAIRMAN STRAIN: Okay, the only question I had, and Joe, maybe this is more of your staff. Under customary accessory uses for these two residential units, they've got guest houses and service quarters, meaning they could have both. Page 33 January 11,2008 Are service quarters looked at as an additional unit in Collier County; do you know? I know Susan's here too, maybe she could -- MR. SCHMITT: Susan, if you could help me on this, Guest houses, They're not prohibited in that part of the county, CHAIRMAN STRAIN: I'm not -- I'm more concerned about how they're counted, Because if they are a unit, I want to make sure that the unit count, that the project's total unit count still does not exceed based on this allowance for guest -- are they counted as part of the unit count is all I'm after. MR. KLATZKOW: It's a defined term in the LDC, guest quarters, CHAIRMAN STRAIN: Right. COMMISSIONER CARON: Service, MR. SCHMITT: You're specifically counting for density, right, for unit count, right? CHAIRMAN STRAIN: We have two things we're trying to add: Guest houses under E, and under G, service quarters, Service quarters, which I'm assuming mean staff. If I'm wrong on that, Richard, correct me, MR. YOV ANOVICH: You're not wrong, CHAIRMAN STRAIN: Okay, So if you have a guest house that would have the full facilities of kitchens, bathrooms, living rooms and whatever. And then you've got also the ability to put in service quarters, which may be servant quarters, they would have full living accommodations, Are those considered in any manner or form units? MS, ISTENES: Susan Istenes, zoning director. I'm not sure service -- what did you say was defined, Jeff? I don't have my code in front of me. But service quarters I don't think is defined in the LDC. MR. KLATZKOW: What I'm getting at is-- MS, ISTENES: Guest -- MR. KLATZKOW: -- maybe we define it the same way as we Page 34 January 11,2008 define what a guest quarter is, MS. ISTENES: My recommendation would be if you don't -- it's not clear, first of all, obviously, If you don't want it to count as density, then we should perhaps place some limitations on it so it doesn't end up to be the equivalent of a guest house, so to speak, because -- CHAIRMAN STRAIN: Ms, Caron? MS, ISTENES: -- in a sense, MR. SCHMITT: I'll be clear from a standpoint. If it's a guest house or resembles a guest house, they will pay the applicable impact fees for that, so that's not an issue. The issue is whether they will -- and if it looks and smells like a guest quarters or a casita or whatever, they're going to pay the impact fees for that additional space and whatever is associated with it as a guest quarters or guest house, So ifthere's both, they're going to pay the impact for both, But the issue here you're asking for, is it actually an additional unit. MS, ISTENES: Well, even guest houses aren't considered an additional unit. And there's criteria on their occupancy, which -- MR. SCHMITT: And the size-- MS, ISTENES: -- discourages them to be permanent structures, so -- CHAIRMAN STRAIN: Ms, Caron, you were next. MS, ISTENES: -- this would be the equivalent. COMMISSIONER CARON: What about service quarters? Those are for people who live full-time in these units, That's a unit, that's -- those are people who live there to serve people who are living there, correct? MS, ISTENES: Yeah, that would be my assumption. And the difficulty there would be if they're -- again, if they start to resemble a guesthouse and somebody's living there full-time, then that's kind of Page 35 January 11, 2008 contrary to the intent. And again, you would not be counting that as density, so you may end up with -- it may end up looking like additional density, It may be worth just trying to get rid of, to be honest with you, because I don't know that the code really -- you're really going to have to condition it, in my opinion, in order to ensure you don't get additional density, CHAIRMAN STRAIN: Mr. Vigliotti, then Mr. Schiffer. COMMISSIONER VIGLIOTTI: Rich, you specifically put in guesthouses. Could that be related to a courtyard house as a single- family? MR. YOV ANOVICH: It could, It could be, or it could be a standalone home that, you know, like you see in many of the Estates or in Pine Ridge. You can have either -- a courtyard home, yes, is one example where you have guest quarters, but also it was also intended to address other situations where you have a detached -- it looks like just a smaller home on the lot for your guests when they come visit. And the service quarters again were intended to address -- if you have -- a lot of people in Naples have rather large homes and they have full-time caregivers for the home -- or caretakers of the home, sorry, And we'll either -- we don't want to make it a big issue, If it's going to create problems, we'll just delete the use. But it was intended to be a standalone residence for people who are working at the home and not count against our density, But again, if it's a big issue, we'll just take it out and make it part of the main structure. COMMISSIONER VIGLIOTTI: Rich, instead of deleting it, why don't we just restrict it to a courtyard-type house, so you have the ability if you're going to put up single-family to -- MR. YOV ANOVICH: For service quarters? COMMISSIONER VIGLIOTTI: No, MR. YOV ANOVICH: Well, the guesthouse issues, we'd like to Page 36 January 11,2008 keep the guesthouse because that's clear under the code it's not part of -- it doesn't count as far as density goes. And we'd like to have the ability to have it separate and distinct from the main residence. And I think a courthouse structure would put us more of -- it almost looks like it's part of the residence. So we'd like to keep the guesthouse, but if the service quarters are creating an issue, we'll take it out. CHAIRMAN STRAIN: I think your issue is resolved by the definition of guesthouse. It says here: A dwelling that serves as an ancillary use providing living quarters for the occupants of the principal dwelling, their temporary guests or their domestic employees, and which may contain kitchen facilities. That's part of the definition of guesthouse or cottage in our code. So it seems to cover the use you're looking for. Mr. Schiffer, you were next, I'm sorry. COMMISSIONER SCHIFFER: But one thing, I think -- and this wasn't my question, but didn't Susan mention, isn't there a temporary you can't occupy it greater than six months or something? Is that right? MS. ISTENES: Yeah, there are occupancy restrictions on it so that you don't have permanent residents in there. COMMISSIONER SCHIFFER: So you would want staff full time. I mean, why would we not want to include this? This is inclusionary zoning. This is great. Why don't we provide these units for the staff and not have to send them out on the marketplace or incorporate them in the house? So why can't we just limit the number of units, like two servants quarters and two guesthouses or maybe one, to keep it. And then that way -- because it is a smart idea. These are going to be big estates. This is not going to be a burden on the neighborhood. So it just makes a lot of sense to keep everybody in the estate. Page 37 January 11,2008 CHAIRMAN STRAIN: I think the purpose of this whole exercise is not the practical approach to affordable housing but the disruption or the concerns of the neighborhood in the area. I mean, I understand your comment. I'm not saying you're right or wrong, I'm just saying the whole purpose isn't for what you're trying to get across. COMMISSIONER SCHIFFER: Right. But I'm saying it does help that. And two units per hundred acres, that's pretty lame density. So I'm not worried about this intruding on the neighborhood. CHAIRMAN STRAIN: Any other comments? (No response.) CHAIRMAN STRAIN: Brad had suggested some restrictions on the numbers of guesthouses and service quarters per principal structure. Ms. Caron? COMMISSIONER CARON: I certainly think limiting, yeah, per residential unit. However, if you were having somebody live full-time in a dwelling unit, then that should count as density. And so it's just two units. I mean, this is not going to -- it's not going to affect their towers and -- you know. MR. YOV ANOVICH: Well, we certainly -- COMMISSIONER CARON: But it should count towards density, that's all. MR. YOV ANOVICH: We certainly didn't intend that. We'd rather just strike it then, because why lose two market rate units for -- we'll find another way to house these people within either the main structure. I would think it's -- frankly, if you look at it from a benefit, they're there, they're off the roads, they don't have to drive to work. There's a whole lot of benefits to having the service quarters there. But to lose density over it, it's better to just strike it. Page 38 January 11,2008 CHAIRMAN STRAIN: Okay, consensus on, let's first say, guesthouses. Is everybody content that they can have guesthouses, as allowed by code, which has the rules, regulation and sizes? Is that acceptable? And how many guesthouses per principal structure? I'm assuming just one? COMMISSIONER MURRAY: One. CHAIRMAN STRAIN: Okay. Now, service quarters. Brad had suggested limiting the service quarters, I think you said to two per principal structure. Service quarters are not defined in the code so they don't have a size relationship to the principal structures as do guesthouses. You may want to consider that. So, I mean, I would suggest that if we go with Brad's suggestion as two service quarters per house, that we limit the service quarters to the same development standards of guesthouses, except the time standards wouldn't apply, the occupancy time standards. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I'm okay with that, two is sufficient. CHAIRMAN STRAIN: Ms. Caron -- or anybody else have any comments? COMMISSIONER MURRAY: I do. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: IfI'm envisioning it correctly, you have a principal structure, you have a guesthouse and then you'd have two other houses, as it were? CHAIRMAN STRAIN: Right. COMMISSIONER MURRAY: I don't know. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, Bob, one thing. Remember, this is two units per hundred acres. A guy is on 50 acres, Page 39 January 11,2008 this is an estate. So imagine what that is. I think, Mark, maybe to limit it we could maybe make it that the combined area of the servants' quarter and guesthouse not to exceed the guesthouse requirement, which, if I'm not mistaken, Susan, isn't that the 50 percent of the main structure? So we're going to have like a 10,000 square foot house. I doubt we're going to have 5,000 square feet of guesthouse. MS. ISTENES: Forty percent. COMMISSIONER SCHIFFER: Okay, 4,000 square feet of guesthouse. So let's limit the combined area not to exceed 40 percent. CHAIRMAN STRAIN: So you're saying one guesthouse and two service quarters would not exceed 40 percent of the main house. COMMISSIONER SCHIFFER: Right. CHAIRMAN STRAIN: Does that work for your -- COMMISSIONER SCHIFFER: Keep it in scale, yeah. MR. YOV ANOVICH: Yes, sir. The only clarification, I didn't hear the word that the service quarters would not count against density. Was that the intent? CHAIRMAN STRAIN: We didn't say it did, so I assume it wouldn't because there's no -- MR. YOV ANOVICH: I think you make a very good point I think we should probably add, because we know guesthouses don't. We should probably add a phrase that says service quarters don't count against density either. CHAIRMAN STRAIN: Everybody in agreement with that? Mr. Schiffer? COMMISSIONER SCHIFFER: One more thing, Mark. I think when we say servants' quarters, we should say servants supporting the house. We wouldn't want them to build a dormitory and bus people down to Port Royal. CHAIRMAN STRAIN: Okay, so it would be service quarters supporting the house. Then the entire accessory -- the two accessory Page 40 January 11,2008 uses, guesthouse and service quarters, will be limited to 40 percent of the size of the principal structure. And service quarters do not count against the density. Is that in agreement with everybody? COMMISSIONER CARON: That's a combined figure, that 40 percent. CHAIRMAN STRAIN: That's what I said. You take-- COMMISSIONER CARON: For all three units? CHAIRMAN STRAIN: Ms. Caron, yes. You take all three together and it's not to exceed 40 percent of the main house. Okay, is everybody in agreement with that? Now let's move to the second page of the single-family, which is the development standards for single-family, which is exactly what we've been talking about. COMMISSIONER SCHIFFER: Mr. Chairman? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER SCHIFFER: Would Joe put that up on the visualizer? CHAIRMAN STRAIN: Anybody have any questions, concerns or comments about the standards for the single family? (No response.) CHAIRMAN STRAIN: Okay. And I think one of the corrections that were noted is that the 200 feet distance is from all PUD boundaries, not from just the two that were shown in one of the pages we'll be getting to here shortly. But the footnote clarifies it. COMMISSIONER CARON: It's correct here. CHAIRMAN STRAIN: Yeah, the footnote's correct. Ms. Caron? COMMISSIONER CARON: Yeah, I just want to make sure, since we've got these two homes on this hundred acres and they've got 50 acres and no structures, I don't want the accessory structures and barns -- because now they've got barns and appurtenances for Page 41 January 11,2008 equestrian to be any closer either. So any structures should be set back 200 feet from the boundaries. CHAIRMAN STRAIN: But that would be more appropriate, I think, Richard, to change in paragraph 11 of the settlement agreement, rather than a footnote to the single-family development standards, because it may not be realized as well there. So that might strengthen that a bit when we get to that page. Good point, we'll throw it in there. MR. YOV ANOVICH: The only question I have, and I don't know the answer, is a fence considered an accessory structure? I don't think it is, but I just want to make -- I don't want everybody to think that the fence has got to be 200 feet off the property line. The fence could be -- certainly I understand the swimming pool and other things have to be 200 feet. But I just want to make sure that a fence isn't considered an accessory structure. CHAIRMAN STRAIN: Ms. Caron? MR. YOV ANOVICH: And an entrance gate obviously wouldn't count either. COMMISSIONER CARON: No, no, no. It would not count. But with respect to if you're fencing the perimeter of the property, that's one thing. But if you are fencing a barn that you want to put right on that property line, that's not what we want. We want all that -- MR. YOV ANOVICH: I understand that you meant every structure, including accessory structures, needs to be 200 feet from the property boundary. We don't have an issue with that. And I hope you got the version that talked about the building height applies to both principal and accessory structures. And now we'll revise that to say the 200 foot will apply to both principal and accessory structures. CHAIRMAN STRAIN: Back to your question about a fence. If we label all uses, all structures have to have a 200- foot setback, and you want to make sure a fence is not considered an accessory use or Page 42 January 11,2008 structure, we really have to fall back on the LDC -- MR. YOV ANOVICH: And I'm asking the question -- CHAIRMAN STRAIN: Not comments here today. So let's get back -- the LDC says an accessory use or structure is defined as the following: A use or structure located on the same lot or parcel and incidental and subordinate to the principal use or structure. So now it comes as a fence, a structure. I think that's an issue that Susan's probably had some fun with in the past and maybe she can provide us with her enjoyable time she had with that and other Issues. MR. YOV ANOVICH: I hope it doesn't. We've got a lot of setback problems in Collier County if you did -- MS. ISTENES: Susan Istenes. Fences have their own regulations that allow them to be placed on property line. You know, we have architectural restrictions for commercial fences and whatnot that are slightly different that may not allow them to be placed on the property line. But this is residential so it wouldn't affect -- CHAIRMAN STRAIN: Okay. So it works well for the accessory as defined in the LDC, which provides the nice consistency that we'd like to have. Are there any other questions about the single-family development standards? (No response.) CHAIRMAN STRAIN: They're acceptable? Fine, we'll get past that issue then. Let's move on to Page 6, paragraph nine of the settlement agreement. On this page we had some strikethrough and highlighted changes and additions in the documents. And I think there was a suggestion in one of the e-mails that the word sidewalks shouldn't have been struck through and replaced with pathways, that it should be sidewalks, except -- and that's only in the first sentence. Page 43 January 11,2008 In the second sentence there it should have been struck through and pathways left in. Anybody have any concerns with that? COMMISSIONER MURRAY: That's what I thought. CHAIRMAN STRAIN: Okay, that's how it will be changed then, I would hope. There's some strike-outs and final language. If there's no other concerns on paragraph nine, we'll move to paragraph 10. This is the bald eagle management plan. Let me see what we had on that one. Okay, there were some changes on that. They're in strikethrough and underlined version. There was a reference at the end of paragraph 10 that says discussion of revised bald eagle management plan continued to January 11 tho The CCPC also deferred its analysis of the remainder of paragraph 10 to January 11th to allow review of the most current SDP submittals. So let's move right into that. We had -- everybody last time we had just gotten the bald eagle management plan the night before our meeting. We didn't have time to review it. Well, why don't we move into that document now, if everybody is ready to discuss that. The latest one we had received around 12/12/07. And it starts on the top of it with the words Exhibit B. Cherie', we'll break a little closer to 10:00, okay? COURT REPORTER: Okay. CHAIRMAN STRAIN: We'll wait for everybody to get there. COMMISSIONER MURRAY: Exhibit B. CHAIRMAN STRAIN: It starts out on top with Exhibit B. It's the new one, not the one attached to the PUD. We received it on 12/12. And I think we received a hard copy back-up at the meeting on 12/13. It's a five-page document with a sixth -- seventh pages graphics showing the location of the eagle. Page 44 January 11, 2008 Ms. Caron? COMMISSIONER CARON: Well, I think that paragraph 10 really relates more -- other than -- the first sentence or two have to do with the height of the buildings, which are pretty much a footnote to the bald eagle management plan. The second part of it, the underlined portion of it has to do with building separations. So this particular paragraph has less to do with the bald eagle management plan than it does with the separation of these buildings. CHAIRMAN STRAIN: Oh, I agree with you. But at the last meeting, and I have my notes and the county attorney's notes that said we want to discuss the bald eagle management plan at this point. And for some reason -- if we don't want to do that now, we want to do that later, that's okay with me. I was trying to follow the pattern set forth previously. So we can go -- we'll just continue on with paragraph 10, if everybody would prefer to just look at the height issue on this one. I'm not even sure this is where the height issue came up originally. I think it came up in paragraph 14, which is habitable. COMMISSIONER CARON: Well, no, I'm looking at the last one we have, and it was in 10. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Yes, sir, Mr. Schiffer? COMMISSIONER SCHIFFER: On the height. And I brought up the concern on height, concern on measuring from habitable. I did go back, research even the building codes. Habitable is defined exactly as the applicant claimed. It's livable area. Occupyable (sic) area, which is what I was actually describing at the last hearing, habitable is certainly a subset of it. But it would be places of work, places of entertainment and stuff. So my concerns that I had last meeting are totally gone, and I apologize for any confusion I'm sure I caused. Page 45 January 11,2008 CHAIRMAN STRAIN: No, I think it's a good point to bring up, because it brought up a lot of discussion we needed to have about habitable. And Mr. Y ovanovich has even provided a new definition of habitable, at some point we have to look at today. Although it turns out there are definitions in some of our codes, twice, two instances in fact, and they're in the code of laws. And by the way, like you just said, the applicant is in line with what those definitions fit. Let's go back to 10 first and see ifthere's anything that we need to discuss in paragraph 10 that we don't feel we finished last time or that's subject to the underlined and crossed out sections of the paragraph we have in front of us today based on the county attorney's draft language. COMMISSIONER SCHIFFER: I have a comment. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: First of all, we were submitted a new development standard for the multi-family high-rise buildings. It actually says -- I guess R-1 is the zone on it. Could we put that up on the monitor? This is something that was submitted -- CHAIRMAN STRAIN: You've got the SDP -- he's got the table from the SDP, not the development standard table, but the standard that was supplied in the SDP package. It was a -- COMMISSIONER SCHIFFER: Yeah. And my conversation is going to be on setbacks. There is one concern I have in that the setbacks for roads I wanted to review. MR. YOV ANOVICH: Mr. Schiffer, you'll tell me if this is the right document, please. Is that the right one? COMMISSIONER SCHIFFER: Yes, it is. Rich, see the line, it's the third one down, the front yard distance from the internal road. It says it's going to be 50 percent of the building height, which we know in our case is 100 feet. The buildings are 200 feet tall. Building two, three, four have a distance less than that. Is that a Page 46 January 11,2008 problem? CHAIRMAN STRAIN: Brad, could you repeat your question? COMMISSIONER SCHIFFER: If you look at the standards, the front yard internal road setback. CHAIRMAN STRAIN: This is for the R-1 standards table? COMMISSIONER SCHIFFER: Yes, multi-family. You'll see that the requirement is for 100 feet, and some of those are -- MR. YOV ANOVICH: Mr. Schiffer, the explanation is, is that is measured to the garage, not the high-rise portion of the building, okay? So that's where those distances are equal to the garage. And as you know -- COMMISSIONER SCHIFFER: The garage isn't that tall. So there isn't a problem. Second thing, put up -- you sent us a drawing that shows the site lines. And if you could focus in on the plan that's on the upper left side. It's a site plan called key map. MR. YOV ANOVICH: Is that the one you're referring to? COMMISSIONER SCHIFFER: Yes, blow up the plan in the lower right. And the reason I'm looking at that is that does -- upper left, I'm sorry. It's called key map. If you could make that the full screen, that would be best. Maybe a little less screen. And my concern is that, we discussed this last time, is the setbacks. The setbacks in the development standards are to be one-half the combined height of the units. Well, I like the one with the black, that's why I was -- MR. YOV ANOVICH: You like the black one better? COMMISSIONER SCHIFFER: Because it points out my concern. And my concern is that the setbacks in the development plan call for 200- foot setback. The buildings are all 200 foot in height. Added together, you get 400 feet. Divide it by two you get 200 feet. And these setbacks are a lot closer. Page 47 January 11,2008 You're requesting us to allow to bring it down to 100 feet. And the concern is this is going to be just one wall of buildings as you go up Vanderbilt Beach Drive. Now, I know where you're coming from, you're going to say well, we twisted the buildings. We have -- first of all, I don't think the site plan would show the buildings parallel -- the walls parallel met the setback to begin with. So all along through this whole process the setbacks were never -- between buildings, distance between buildings were never being met. What you actually did in the current design is you kind of rotated them a little bit and, you know, even -- again I go back to this October 9th letter from PMS, Inc. and it says that, you know, that the buildings didn't meet it. They were stating that in their -- and she states, however, the buildings have been slightly rotated to ensure compliance with the development standards. So the concern I have is that I don't think the development standards -- I think the development standard is intended for the setbacks as described in the chart, in the table, which would essentially produce a square of open space between the units. What you're asking for is to allow that to be brought down to half that dimension, or essentially half a square between them, which will give these things the appearance of a wall when you look at it from different vistas on Vanderbilt. So you're requesting that in here. So why are you requesting that, to make the site plan buildable or a desire or -- MR. YOV ANOVICH: To make it buildable. COMMISSIONER SCHIFFER: So in the original layout it did not meet the standards shown? CHAIRMAN STRAIN: Brad, I -- before Richard answers, could you show me what part of the settlement agreement you're referring to that they're asking for that's different than what they already received in the PUD? Page 48 January 11,2008 COMMISSIONER SCHIFFER: In 10, the minimum separation of the habitable portion of the building shall be one-half the sum of the height of the habitable portion of the building, not to exceed 100 foot of separation for the habitable portion of the building. First of all, putting in there the one-half of the height again is just -- that's a teaser, because you know you can't make that. So the concern is that -- the problem is that the neighbors, I think, and I wasn't on the board then, I don't know what testimony was. But the intention was is to have these buildings spaced apart by pushing them up against each other. CHAIRMAN STRAIN: I'm still trying to get to -- I'm trying to understand where you're going. I'm sure Richard could answer it, but it may not help me try to figure out where you're going. If that's possible, I'd like to. I think the sentence you're referring to should have been changed, if I remember correctly from our last discussion where it begins on Page 7, buildings shall be one-half the sum of the height of the habitable portion of the buildings and shall be a minimum of 100 feet of separation for the habitable portion of the buildings. And ifI recall correctly, it was never not to exceed 100 feet. That would be ridiculous. COMMISSIONER SCHIFFER: Right. And I'm reading that-- one of the other comments I had further, Mark, is that the way it's written, it's actually locking it to be less than 100 feet -- CHAIRMAN STRAIN: If you about put that in, does that fix your problem? COMMISSIONER SCHIFFER: No. I think that if the project was sold to have a 200-foot separation between buildings, it should not have a 100- foot separation between buildings. MR. YOV ANOVICH: First of all, it was never sold that way. The commission saw -- at that time saw the entire PUD document. And in that PUD document it provided for a mechanism to reduce the Page 49 January 11,2008 separation of structures. And it said there had to be a common architectural theme and the buildings need to be skewed and basically not parallel. So the commission saw this. We provided an exhibit when we did the neighborhood meetings. Yet if you look at the exhibit, you could see that the structures were not 200 feet apart, we were only going about -- did we have a line on there that says the distance between buildings? No. But if you looked at the scale that was on that drawing, you would see that these buildings were not 200 feet apart. So I don't think we ever sold this as they were going to be 200 feet apart, else we wouldn't have had the common architectural language in there. COMMISSIONER SCHIFFER: Well, the common architectural language, let's make that simple. You're building the exact identical building. We could discuss whether that's good or bad. I personally wonder. So it's obviously common, they're twins. Everything, everybody is going to look alike, according to your SDP. MR. YOV ANOVICH: Actually, they're quintuplets. COMMISSIONER SCHIFFER: So they're quintuplets. So we don't have to worry about them being a common architectural theme, they're identical. MR. YOV ANOVICH: We've covered that. COMMISSIONER SCHIFFER: So the concern is though -- but I think there's a clause in there that I know you're hanging on, and that is that if you do skew the buildings or twist them, then you can move -- the buildings can have less than the dimensions shown. Now, I think what that means from a planner, and Susan's our chief planner, that you have a spacing required. Yes, you can twist them a little bit, and if that does cause that dimension to be less, that's not a problem. I don't think it means no setbacks or no separation once you twist them. MR. YOV ANOVICH: But we're not trying for no separation. Page 50 January 11,2008 We're just trying to implement the provision in the code -- I'm sorry, the PUD, that already says if you do these things we can minimize, reduce the building separation. I provided some language in an e-mail that says it has to be a minimum of 100 feet for the habitable tower portion of the structure, the parking garages will still meet their one-half the sum of the building height. We don't think under this site plan, frankly, that it's going to look like a wall of buildings. We think that it's going to look very nice. I mean, frankly, they're angled all the way up. The only issue that you were raising is there were two buildings that arguably were not skewed and they were parallel. So we wanted to make it clear, we didn't want to get into an argument down the road, you know, parallel means one thing in geometry. And I think I told you the last time I was here I wasn't very good at geometry. But once you skew it one degree, you're no longer parallel. And we just wanted to say, listen, you're going to end up with buildings that are a minimum 100 feet apart on the towers. We think from a view corridor coming down Vanderbilt Road with the landscaping buffer that we provided you, this is going to look fine, it's going to look nice, it implements the existing PUD, and it wasn't a change to the PUD document. COMMISSIONER SCHIFFER: But back to what you said earlier, Richard, I think much like -- remember when I wanted you to look at this drawing, you wanted us to look at the other drawing, you can't see the building masses on those other drawings? I think most people would not notice the distance. Obviously I had to take out a scale to see what the distance was on the submitted PUD to find out what they are. The -- CHAIRMAN STRAIN: We're going to need to take a break here in a little bit. So if we could get to some point you feel we can break, Page 51 January 11,2008 Brad -- COMMISSIONER SCHIFFER: Well, he walked away, Mark-- CHAIRMAN STRAIN: No, no, I know that. No, I'm just suggesting if you at some point -- COMMISSIONER SCHIFFER: You can take a break any time you want. MR. YOV ANOVICH: No, I was just answering my client's question. COMMISSIONER SCHIFFER: Right. Anyway, my concern is that we put a chart in the table, that's really what prevails. And the exhibit, you know, there's a lot of caveats on it stating that it's subject to change and all the other things. So I think anybody relying on that data would be relying on the table. I think what the table means, and we can get some testimony from staff, that there's a massing expected. In this case everybody expected a square of open space between these buildings that, yes, if you rotated them or did something like that, of course the corners might swing in less to that dimension. So in other words, if it's 190, 180 feet once you rotate them -- let me wait till the side bar is over. MR. YOV ANOVICH: You know, we could debate this point probably all day. The PUD says what the PUD says. There's a footnote that specifically allows for the buildings to get closer together if you meet the criteria of the PUD. We're not asking for any changes of the PUD document related to building separation. What we simply are trying to do is make it less ambiguous for both staff and us and for the general public to understand what the separation will be. And what we're saying is it will be a minimum separation for that livable portion of the building of 100 feet. I wasn't prepared and didn't think we were going to debate the original PUD document. It was adopted, we're implementing it. We're trying to make it clear. Had they not wanted -- ifthere had been an Page 52 January 11,2008 intent that you would never be able to reduce the building separation, there wouldn't have been that footnote. And candidly, there wouldn't be a provision in the Land Development Code itself that allows for common architectural theme to result in the reduction of building separation from the minimum standards. It would have said thou shalt never be closer than 200 feet. CHAIRMAN STRAIN: We're going to need to take a break here. And we'll come back at 10:15. Mr. Vigliotti and Ms. Caron both have questions at some point in this issue. So when we get back, Brad can finish with his. We'll get into Mr. Vigliotti's and Ms. Caron and we'll go from there. 10: 15 we'll return. (Recess. ) CHAIRMAN STRAIN: Okay, everyone, we'll resume the meeting where we had left off. And Mr. Schiffer was working on some questions concerning the last two sentences on -- starts on Page 6 and on Page 7 of the settlement agreement. After he finishes, Mr. Vigliotti was next, and then Ms. Caron. Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: I guess, Rich, just to go back. One thing, you mentioned that in the LDC there's a section of code that says if you have a common architectural theme -- and again, this county, one of its problem is it makes everything look the same, but we'll assume that's good, that's a given -- that if you rotate it you can reduce the separation between buildings. Is that -- I don't think that's in the LDC. There is something similar to that about clustering but -- MR. YOV ANOVICH: Right, and that's under -- the common architectural theme talks about clustering. You go through a conditional use process. We went through a public hearing PUD process, so there was a public hearing process that occurs. And I don't believe -- and I could be wrong, I don't believe there Page 53 January 11,2008 is any requirement for either skewing or rotating the buildings to meet the definition of common architectural theme for clustering. So instead of what you see on the visualizer where you have the buildings angled away from Vanderbilt Road, you could probably line them all up on Vanderbilt Road and really create the wall that you're fearful we'll be creating. Now, I think you have to look at all of this together. We have landscape requirements that we've provided for you. And this is actually the sight line study that shows you, as you're driving down or walking down Vanderbilt Drive, you're not going to see the buildings. So if you're not going to see the buildings, what's the impact on this necessary space between the buildings? Now, from a distance, I don't care where you are, whether it's 200 feet or 100 feet, if you're a half a mile away, the buildings are going to look close together, whether it's 200 feet or 100 feet. So I think if you look at what we're doing, we are meeting the requirements in the existing PUD; we are further away from Vanderbilt Drive than the minimum required; we have met the skewing and the common architectural theme. We're not asking to change the PUD, we're just asking to make it clear that the minimum distance has to be 100 feet. Because frankly, probably under the PUD we can get even closer, which I believe was one of your concerns when we talked the last time. I believe you asked me, Rich, can't you guys theoretically get within a couple of feet of each building. And we've said no. And we've answered that by saying the towers have got to at least be 100 feet from each other. So we thought we had addressed a lot of the concerns while staying consistent with the existing adopted PUD. COMMISSIONER SCHIFFER: And I guess maybe, Mark, if it would be okay, let me have Susan come down. Because the way that clause really reads is if that if you meet certain conditions it can be Page 54 January 11,2008 administratively reviewed. Again, you know my opinion is that the intent of something like that from a planning concept, not from just looking at words and playing Philadelphia lawyer, from a planning concept, that means that if a building rotates, that would tend to close dimensions, and the dimensions would swing in. And if you do that, you won't be penalized because of the fact that you've skewed the building. But let me ask Susan, because she's the one that would be making that judgment. Or Ross might be. Richard, let Ross -- MR. YOV ANOVICH: Oh, I'm sorry. I thought he was going to sit over there. MR. GOCHENAUR: For the record, Ross Gochenaur, zoning and land development review. Susan's asked me to address this issue for you. The way we understand the PUD is -- well, the basic question is, is the reduction in setbacks or separation of structures limited by the PUD document? And the answer is no, the separation is unlimited. I can't see any grounds in there for intent to reduce it a certain amount, or it would have been specified. So the question I ask myself is does the applicant have the right to do what he did? And the answer was yes. There simply is nothing that limits the amount of reduction. COMMISSIONER SCHIFFER: So Ross, you think what that meant -- here's what I think it meant. I think it meant that if you have two buildings, you have a separation, in this case a square, that if those buildings rotate, they close in on each other a little bit. And that's what that means, that essentially the scale of the project-- remember, I'm talking purely in the planning concept of buildings and mass -- that the scale of the project stays the same but the dimensions do close slightly when you rotate them. So when you're telling me that clause meant -- and this was what was given to the public as a development standard, that if you slightly skew your buildings, which is what they've done, you have no side Page 55 January 11, 2008 setback requirement anymore? MR. GOCHENAUR: Basically that's correct. COMMISSIONER SCHIFFER: Really? MR. GOCHENAUR: Correct. Now, as far as the-- COMMISSIONER SCHIFFER: From a planning concept you really feel -- MR. GOCHENAUR: As far as the intent. When the PUD was approved, I don't think we're going to find anything that explained the intent as far as a possible reduction in the amount or the distance. I think it was unlimited. It's unlimited here. I don't see where we have the right to tell the applicant that there's a limit to which he can reduce that separation. It's simply not stated in here. COMMISSIONER SCHIFFER: But here's the point. And this will be the last time. I don't want to be redundant. But I think as planners, not as reading little words and, you know, reading between lines, is that when you describe through the table the separation of these buildings to have essentially a square of space between them, that if you rotate those buildings a little bit, that square can open or close a little bit. You're saying that they essentially tricked us then by giving us a table, giving us a setback, knowing all the time that they're never going hit that description, they're never going to hit that dimension. MR. GOCHENAUR: No, sir, I'm not suggesting anyone was tricked. But I am saying that the board approved the setbacks as they appear in this table. And that reading these, without full knowledge of the intent or any real intimate knowledge of the PUD rezone itself, I have to say that this is the way I feel constrained to apply it. And I don't think Susan disagrees with that, which is why she asked me to explain this to you. COMMISSIONER SCHIFFER: So as the one who made the administrative decision that if a building in this case was slightly skewed, that eliminated the requirement for building separation? Page 56 January 11, 2008 MR. GOCHENAUR: Yes, sir, that's my understanding of this document. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: At our last meeting we discussed this particular point in depth. I believe almost everybody weighed in at different points, we spent a lot of time on it. What I had said is I'm not happy about it, I don't like it, but it's in the PUD. We're not here to change the PUD, nor can we. I just think it's something we have to live with and move on. And I believe it was the consensus of most of us, as I said, that it is the way it and we have to live with it. CHAIRMAN STRAIN: Ms. Caron had a comment and then I've got a comment. Ms. Caron, go right ahead. COMMISSIONER CARON: Yeah, and it will be a comment at this point -- well, actually, I'll ask a question first to the county attorney. Do you agree that staff has no authority to make a judgment on the separation of these buildings? MR. KLATZKOW: I think -- just for visually, because I'm more of a visual person, if your buildings were like this and you required 200 feet, okay, and then they said you can make it slightly askew and thereby build them like this, I think that's an absurd interpretation. I think what the -- I think the way it reads is that there's discretion here -- and that includes this board as well because you're making recommendations to the board here, that if they're going to make this slightly skewed, that yes, they can reduce this, that's appropriate. The question is how much of a reduction is appropriate. And that's my view on that. Now, the planning director disagrees with that, and that's fine. COMMISSIONER CARON: Okay, thank you for that. Because Page 57 January 11,2008 I think this is a critically important discussion to be having because this is not going to affect just this proj ect. This will affect proj ects coming down the road. And if we suddenly decide that we have no authority -- no planning authority to decide whether 250 -- what in reality will be 251- foot plus buildings could essentially be five feet apart, the absurdity of that judgment is just beyond me. If this board thinks that 100 feet, when it should be 200 feet, is the correct way to go, then you'll make that decision. But I agree with Mr. Schiffer, that we're going to end up with essentially a wall of buildings 100 -- you know, barely 100 feet apart. CHAIRMAN STRAIN: Okay. I had a comment I wanted to make. And I saw this sentence telling us that the applicant had agreed that the buildings would never be less than 100 feet apart. I don't know why the applicant wanted to do that, because basically the PUD stands on itself and they probably have a very good case on that footnote if they wanted to make one, regardless. So I'm wondering, to get off this point, because we're only discussing it because of these two sentences in the PUD that now with staffs testimony here today and the clarifications that have come out of discussion today by staff, why do you need these two sentences? You still got the PUD that dominates, and we're off the discussion and we go on to the rest of the paragraphs. So I'm asking the applicant, originally I saw a version of this document with those two sentences struck, because apparently someone at one time felt the PUD stood on its own. I understand your position in trying to voluntarily minimize the distance in which they could be put at, but it looks like that's causing a lot more controversy than the effort may have been worth. MR. YOV ANOVICH: I will tell you, we think the benefit of that sentence is both to us and to the county so when there's personnel changes over time, there always are, or different people sitting in your seats, people could interpret the document differently. And we would Page 58 January 11,2008 like that certainty because, candidly, we need to know that this site development plan will be approved, or something similar to it if changes happen will be approved in the future and not be subject to a debate over words in the future. And we thought -- I think staff would prefer to have the clarification so we all know it won't be less than 100 feet. We would like that in the document to provide certainty to us so -- and reasonable minds can disagree about what things mean, and we're just trying to make sure that this is clear that we have certainty in the future. And that's why we've asked to keep that in. I know it's an uncomfortable conversation we're having, but that's why it's in, and we think that it's beneficial to both sides to have that language in. CHAIRMAN STRAIN: Okay, but the language only states a minimum. To get to that minimum, you still need to bring in the common architectural theme issue. So the language doesn't clear up any of the debate about that issue. It simply says you have a minimum of 100 feet that you can get to but you still got to fall back on what the debate has been to get there. So I'm not sure why the sentence helps you, but if you want to leave it in, then we will go forward. I just suggested, since I had seen it struck in the prior version, the first version that was sent to this committee back last year didn't have -- had that struck through as being omitted. Then it was put back in when you all realized it was coming to us, for some reason. But that's fine. It seemed simpler without it. We're on paragraph 10 -- Brad, did you have another question? COMMISSIONER SCHIFFER: My comment was, based on Ross's testimony, just take it out. Because we're ultimately going to vote on this thing. I certainly could -- I don't know how we're going to vote, if we vote by number, line item veto kind of thing maybe. But if we vote on this thing as a whole, I would never support that. Page 59 January 11, 2008 CHAIRMAN STRAIN: I don't think we're voting on it. I think we're simply making recommendations and we can all, on each recommendation, say we support it or don't support it. We're here to tell -- I thought we were here to describe to the BCC what the settlement agreement means in interpretation of the PUD that they formerly had, the differences. If some of us see this as a different interpretation than what the PUD meant, then that could be our recommendation. Others of us may not see that as a different interpretation. You're focusing on your dislike of a footnote in the PUD, but that doesn't necessarily mean that's a different interpretation. That's all I'm getting at. COMMISSIONER SCHIFFER: Make it clear, I'm focusing on the geometry of the construction of this project. Let me ask Ross one quick question before we jump away. Ross, this is in for SDP, the setbacks are shown. I saw some correspondence where you didn't accept the setbacks because the buildings were parallel but then they slightly skewed them and therefore triggering that footnote. And you've given us your interpretation of that. Have you signed off on the setbacks of this SDP already? MR. GOCHENAUR: No, sir. They're revising the setbacks not for the high-rises but principally for the clubhouse and the single-family homes. For the high-rises, I've accepted the resubmittal that revised the setbacks and skewed the buildings. COMMISSIONER SCHIFFER: So essentially Richard is concerned about the future generations, you've signed it off, it's a done deal. This clause doesn't mean anything in this agreement anyway, then. CHAIRMAN STRAIN: That's what I was getting at. Mr. Klatzkow? MR. KLA TZKOW: Let's keep in mind that this is almost like a package. The settlement agreement and the site development plan are Page 60 January 11, 2008 all going to the board at the same time. And, you know, defining what the setback is in the settlement agreement doesn't -- I don't know really where it gets us anyway, since the site development plan is going to have the setbacks anyway. CHAIRMAN STRAIN: Well, but the applicant wants to leave it in. We can recommend to take the two sentences out and that can be done with it, but -- MR. YOV ANOVICH: The concern is not about the present. But if we go in the future and we determine that we need to make a modification to the site development plan and we move the buildings a foot one way or the other, we don't want to get into a debate again on this issue. We want it to be understood and clear that we can go ahead and reduce the setbacks between the buildings. We don't want -- we don't want to be stuck with, Mr. Y ovanovich, you moved it a foot. We think this new group doesn't agree that you're allowed to put buildings closer together. That's why this provision is in there. CHAIRMAN STRAIN: Mr. Klatzkow? MR. KLATZKOW: Then I'm going to want some clarity. Because my understanding was that we were going to have a final site development plan and that's how this development was going to get built. I'm hearing now that well, maybe we're going to make changes after all this is over to that site development plan. So that what ultimately gets built is not what ultimately is going to go before this board. And I don't -- it's okay by me if it's okay with this board, but that's what we're saying here right now. CHAIRMAN STRAIN: I thought that this settlement agreement is based upon the approval of the three SDPs. Once they're approved, they're done. Are you going to tell us that there's going to be more -- well, they'd be outside the settlement agreement then, would they not? MR. YOV ANOVICH: They would be outside the settlement agreement. What we're looking for is clarification of what does the Page 61 January 11,2008 PUD document mean in this settlement agreement. So if there is a change, people will say, Mr. Y ovanovich, you're right, the buildings can be, as long as they meet the common architectural theme. The buildings are not parallel, they are skewed, you can be closer together but not less than 100 feet apart on the residential tower and the parking garages, some of the building height. So when we go in the future, we know we're allowed to do that. No maze, no language of, you know, what is this distance of, you know, what is -- how much skewing do you need to do to meet the intent of this. We want to know that ifthere is a change, that's how the PUD document will be interpreted. CHAIRMAN STRAIN: Well, I myself, I thought the PUD language stood on its own. Your bringing it into this document is causing concerns with this panel. MR. YOV ANOVICH: And I'm listening to the public discussion about it and there are people who are less certain that it stands on its own and it's clear. And that's why we're trying to make it clear through the settlement agreement, so in the future we don't have a changing of minds as to what is clear in the PUD document. CHAIRMAN STRAIN: Okay, any other comments on paragraph 10? If not, we have to figure out how to resolve this paragraph and what kind of recommendation as far as the language goes we need to provide to the county attorney to include in the next draft that is produced. Any comments from the -- COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Mark, what I would prefer we do is remove this language, because -- and let it be something that the administrative staff take care of. If Richard is concerned about a future planner viewing it the way I would view it -- and remember, I have a degree in architecture and planning -- then that's a good concern. Page 62 January 11,2008 But the point is I would never want it to look like this board endorsed this kind of interpretation of the setback. I don't think it's right, and I think it should just be struck. It should not be a problem. Quick, get your administrative stuff in there. And Ross is today's professional and he says that you can do what you want to do. CHAIRMAN STRAIN: I tend to agree with you in the sense that I don't think the PUD needs any more clarification. I think you can manage yourself under the PUD. That's what you accepted. I don't see the need for these two sentences. I'd just as soon they were gone as well. I just don't see the need for them. I understand your concern, Richard, but you're a capable attorney and I'm sure you could argue whatever rights you had aren't going to go away whether these two sentences are there or not. Any other comments from anybody? COMMISSIONER SCHIFFER: I just want to say one more thing. Is that when we get PUDs we get a development standard table, which everybody says that's the genetic code of the project. And then we get a drawing that everybody says can be fluctuated quite a bit. The standard really gave everybody the impression of the separation of these buildings. To do what we're doing now I think is a big mistake, the way it's being interpreted. Enough said. I mean, I -- CHAIRMAN STRAIN: Brad, when I read a development standards table, and you know I read them all because every single meeting I harp on the footnotes. I read this one. I wasn't here when that one was approved, that was way before my time. But had it been here, I would have known what it meant, I would have known exactly what it meant and what the footnotes mean, because I realize they're critical, they're that important to what this committee approves. So I don't know if when this went through people didn't know what they mean or didn't read it. I sure would have known what it Page 63 January 11,2008 meant and would have read it, so I'm assuming the other bodies on this board would have done the same thing. So I'm not in your camp in that regard, but I do believe that these two sentences are not needed, and my recommendation would be that they just be struck and not included as part of this settlement agreement. Is that -- COMMISSIONER SCHIFFER: I really agree with that. Do you need a motion? CHAIRMAN STRAIN: I don't know if we need a motion, Mr. Klatzkow, or just consensus? MR. KLATZKOW: At the end I'm going to ask you to go through this so we have certainty as to what these changes are. CHAIRMAN STRAIN: Okay, so let's just get a consensus. Mr. Kolflat? COMMISSIONER KOLFLA T: Yes, don't you feel that the Board of County Commissioners wanted our opinion on such a thing on whether it's a reasonable distance between structures? CHAIRMAN STRAIN: They wanted our opinion on how the settlement agreement differed than the PUD, how it changed the effect of the PUD. That's what they specifically said on the tape that we reviewed. If they wanted our opinion on all the aspects of this project, we could do that. But we would need about a month at the rate we're going and every day of the week to review it. I don't think they wanted that, nor would they be able to read that if we sent it to them. So we need to stick to the focus. Look at the settlement agreement, look at the issues in the settlement agreement and describe to the BCC how they vary from the PUD language that's already been approved or suggest remedies to that effect. And that's what I think we need to be focusing on. COMMISSIONER KOLFLA T: But shouldn't we see what the consensus is as far as this board is concerned relative to the separation somewhere along the line, whether it's now or done at the end of the Page 64 January 11,2008 hearings? CHAIRMAN STRAIN: I don't think this is a popularity vote on the PUD's application. If it is, then that's -- we can do that, but I'm not going to take part in it because I don't think that was part of the direction this board was given. COMMISSIONER KOLFLA T: I wasn't talking about a popularity report, I was talking about something that's whether it's good planning or bad planning. CHAIRMAN STRAIN: I think that differs too amongst the people and the experience they have on this board -- or experience in that field. And I'm not sure everybody has the expertise to opine on what's good and bad planning from a perspective we'd be looking at this. Because we certainly haven't gone in, analyzed the PUD in regards to the presentations at the time and weighed in on the way this is utilized in other parts of either this county or the parts of Florida. So those are areas I don't see where this board had the --needs to get into. Mr. Klatzkow? MR. KLATZKOW: Frankly, I prefer the language out. The applicant will have his approved site development plan at the end of the day. If they want to change it and make these setbacks closer they will do so at their own risk. It will be at their risk and not the county's at that point in time. CHAIRMAN STRAIN: I'm going ask for a -- I'm going to go down the line as far as recommending removal of this language. Mr. Kolflat? COMMISSIONER KOLFLA T: Yes. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Yes. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yes. CHAIRMAN STRAIN: Myself, yes. Page 65 January 11, 2008 Mr. Adelstein? COMMISSIONER ADELSTEIN: Yes. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Yes. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Yes. CHAIRMAN STRAIN: Okay. That will be the recommendation on paragraph 10. We now can move on to paragraph 11. Paragraph 11 didn't have any -- had a small change, and changed the word shall to may. Although I think there's a couple of changes in the last sentence that we just evolved out of the discussion we had on single-family where it says 1,200 square feet, it says each single-family dwelling unit shall be set back a minimum of 200 feet from the north and east boundaries. That should read, all structures shall be set back a minimum of 200 feet from all boundaries of the PUD project. MR. YOV ANOVICH: And maybe it could even be simpler, is that I believe we provided you a development standards table for the single- family homes. Perhaps we could just refer to it as an exhibit instead of -- we would just say the single-family standards shall be as depicted in exhibit -- CHAIRMAN STRAIN: No, because we're not dealing with the issue of just single-family in regards to that portion of the sentence. We're dealing with setbacks from all PUD boundaries to be 200 feet. Which goes back to your fence discussion that we went in length and you got a comfort level that a fence was not an accessory structure. Basically, what we'd be saying is all structures would have to have at least a 200-foot setback from PUD boundaries, not just single-family as you're suggesting now in a single-family developments standards table. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Yes, sir, Mr. Schiffer. Page 66 January 11,2008 COMMISSIONER SCHIFFER: I do think we should exempt gatehouses, because that would be difficult to not consider a structure. So all structures maybe, parentheses, except gatehouses. CHAIRMAN STRAIN: I have no problem with that. Do you understand now what we're trying to get at, Richard? MR. YOV ANOVICH: Honestly, no. CHAIRMAN STRAIN: Okay, let's start over again then. Right now the way this is written, the only structures that would require a 200-foot setback would be single-family dwellings, and they would only require it on the north and east boundary. We're saying, as I thought we discussed previously, all structures on the project, with the exception of gatehouses, shall have a 200-foot setback from all boundaries, whether they be north, east, south or west. MR. YOV ANOVICH: Correct. CHAIRMAN STRAIN: That's okay? MR. YOV ANOVICH: I don't disagree with that. I don't disagree with that. CHAIRMAN STRAIN: And that's what we're trying to change here. Do you have a problem with that change? MR. YOV ANOVICH: No. I just thought it might -- since this was really a paragraph that dealt with the single-family structures, we would -- again, whatever. If we're getting into the same practical place, it doesn't really matter. COMMISSIONER SCHIFFER: Mark, let me. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: Could we change that to non-habitable gatehouses? Essentially, somebody could occupy a gatehouse. And based on the last conversation, let's word everything extremely careful. So we don't want a gatehouse with somebody living in it, which is a nice feature in an estate. CHAIRMAN STRAIN: Non-habitable gatehouse. Page 67 January 11,2008 COMMISSIONER SCHIFFER: Occupyable will be allowed, and that's what they want. CHAIRMAN STRAIN: Okay. Richard, does that work? MR. YOV ANOVICH: Yes, sir. CHAIRMAN STRAIN: I'm just trying to get consensus from everybody so they don't come back later in front of the BCC and say we didn't agree with that. MR. YOV ANOVICH: Again, just help me, because I want to understand how all of this is getting incorporated. We talked about the document labeled single-family criteria. CHAIRMAN STRAIN: Right. MR. YOV ANOVICH: How are we incorporating that into the settlement agreement? Because I think it has to be incorporated into the settlement agreement. CHAIRMAN STRAIN: Well, by the end of this discussion I was hoping we would have a very careful discussion about doing this the way it should be done, and that's as a strike-through version of the PUD. And all the changes that you're talking about get entered into the PUD to a document that can be recorded just like every other PUD, so in 10 years that you're worried about when staff goes back and tries to figure out what standards apply, 10 years from now there may not be anybody in this county remembers this settlement agreement but they will have an ordinance on file that gives them a number for a PUD that they would pull up and look at. So that's where I was going to suggest eventually that all this stuff goes. MR. YOV ANOVICH: Just for the record, so you know, that's how we started this process. CHAIRMAN STRAIN: Well, maybe we'll finish-- MR. YOV ANOVICH: So we're going to go back to -- and I'm okay with that. CHAIRMAN STRAIN: Well, I'm not going to say you were Page 68 January 11,2008 right, so don't go that far. Okay, so 11 's done, let's go on to paragraph 12. There were no issues and changes on 12. Paragraph 13 actually moves over to seven -- from Page 7 to Page 8. On Page 8 there's quite a few suggested underlines and changes. Now we're back into the bald eagle management plan, and here it is requesting that the county acknowledge that it's in compliance with county regulations. So maybe this would be the appropriate time to discuss the bald eagle management plan, okay? The bald eagle management plan was sent to us on 12/12107. It's the document I previously asked you to look at that has Exhibit B, the first words on the top. And if we go into that, I guess we can start talking about it. COMMISSIONER SCHIFFER: Mark, one question. CHAIRMAN STRAIN: Yes, sir. COMMISSIONER SCHIFFER: Has the EAC reviewed this? CHAIRMAN STRAIN: This wasn't remanded back to the EAC, so I don't know. Maybe somebody else can tell us if they looked at the bald eagle management plan. MR. YOV ANOVICH: No, they have not. CHAIRMAN STRAIN: Okay, who wants to -- well, I think the question on the settlement agreement is does the county accept it? County staff and the environmental division is here. Let's find out right from the horse's mouth where it stands. MR. LORENZ: I think Barbara has a few comments to make with regard -- at least to bring to your attention with regard to the bald eagle management plan -- the amended plan. So at least -- let her run those comments down for you to consider. MS. BURGESON: The first issue is regarding the artificial nest tree. Staff has -- from the very beginning when the bald eagle management plan amendment was prepared in front of the board a few Page 69 January 11,2008 years ago that precipitated all of this, from the very beginning staff has been telling the applicant that we would not be able to support recommending approval of that ST permit to put that artificial nest tree in a pristine tidal wetland area. They would have to apply for the ST permit, we would review it. But going through all the potential possibilities for us to approve it, we've been forewarning them that we saw no way that we could recommend approval of that. So continued to recommend relocation on either upland -- well, upland areas and outside of ST overlay areas. Also, I was told by Laura Roys, who has done the review of the most recent Biological Opinion on this, and that tree was removed from the Biological Opinion and no credit is given for that as a part of mitigation. It's recognized as something they're interested in seeing how it works out, but it's not given credit for mitigation. So we're concerned that that's part of the settlement agreement. And the second comment -- CHAIRMAN STRAIN: Barbara, let's back up so that we understand better what you're trying to say. Why are you concerned that it's part of the settlement agreement if it's not part of the mitigation? I don't follow that. MS. BURGESON: I'm saying that it infers as if -- it infers that there will be a benefit by having -- and that the permits will be obtained, even though they say diligent attempts and efforts to obtain the permits. We've pretty much told them at this point we -- unless they get to -- and this type of permit would have to go to the EAC, the planning commission and the board for approval. Unless they could get the board, all three -- the board to approve an ST permit, we do not expect that this would be permittable, specifically because they give the exact location as to where they want to put it. If they're interested in doing a nest tree and want to remove references to specific locations, then staff is more comfortable with having that language in here. Page 70 January 11,2008 CHAIRMAN STRAIN: Bill? MR. LORENZ: Yes, just as we said, we just want to make sure that we set the expectations appropriately, that, as Barbara noted, that would be something staff couldn't recommend. However, if the board is going to be approving of this and understands those conditions, and ultimately of course it's a county commission approval. But we want to make sure that we're not setting expectations in a different direction and we at least put it on record to indicate that we would certainly have a hard time recommending this particular artificial tree to be placed in pristine wetlands with an ST. And Barbara's point about it's not a requirement of the mitigation requirements, but that's certainly -- the agencies are kind of looking for maybe some information to get out of it. We just want to make sure we put that on the record. CHAIRMAN STRAIN: Okay. Go ahead Barbara, then. I just had one -- if somebody here needs a clarification, just let us know. Go ahead. MS. BURGESON: The only other two -- well, maybe three points would be in the paragraph right below that, changes that affect the above terms and conditions. Just reading through that, I'm just a little bit concerned. I understand the interest in not requiring further amendments to the PUD document or the bald eagle management plan. However, if the applicant gets requirements from the agencies that revisions need to be made, that -- the way it's written, that those revisions shall automatically become part of the bald eagle management plan. If those revisions are different than the management plan, it seems more appropriate to just rewrite the growth management plan. So I'm not sure whether or not that's -- because it says it will be a part of the bald eagle management plan, and then it says and no further action to amend the management plan shall be required. But if it becomes a part of it, it actually does amend it. So I just thought Page 71 January 11,2008 maybe that language could be cleaned up. CHAIRMAN STRAIN: Okay. That's it? Thank you. MS. BURGESON: No, two other items. When you look at the Exhibit 1, I'm not sure why the consultant marked Exhibit 1 with the radiuses of 100 feet, then 250, 500, 750, 1,000 and 1,500. If they've gotten technical assistance from the agencies, the distances the agencies are currently using and have been are the 330 and 660 distances. And they should be identified from each of the two nests. It's probably not very easy to see what I've drawn here, but there should be at a minimum a 330-foot distance and a 660-foot distance drawn from each of those two nests. So that's a correction that should be made. Then finally, on the PUD master plan, which is actually Exhibit 3 to the agreement and release, they've mislabeled where in the original PUD the water was preserve. And it was clearly stated through all of the processes and the public hearings that that would be part of the preserve and that acreage is part of the PUD preserve. Also, there seems to be a change in the boundary of the preserve -- yeah, you want to put that on the visualizer. And we're a little bit concerned. That was not brought to staffs attention. In fact it was not -- it was during a different meeting that it was brought to staffs attention, but not by the applicant. And those are all of my comments. CHAIRMAN STRAIN: Okay, the idea of the water being counted as part of the preserve, Margie, if I recall, didn't you look at that issue? MS. STUDENT-STIRLING: We did look at the issue, and we found that from the title work that we had done, that they own out to that boundary line. Now, they have stated that something, and I'll let Mr. Y ovanovich address this, apparently came up in permitting where the Page 72 January 11,2008 state was making a claim -- MR. YOV ANOVICH: I thought we resolved this -- MS. STUDENT-STIRLING: -- to that area and they chose not to include it. MR. YOV ANOVICH: I thought what had happened was we were told originally to put language in the settlement agreement that addressed the issue of who owns submerged lands or who doesn't own submerged lands. As you recall, as we were going through the permitting process, the state made claim to it as far as the submerged lands. It didn't affect us one way or the other from a permitting or a density standpoint, so we didn't spend the money to litigate with the state as to who owns the submerged lands. We were originally asked to delete from the PUD that acreage, recalculate the, quote, density per acre. That was all included in the last draft. Then we were told by the county attorney's office to take it out, which we've done. So I don't know what the issue is related to submerged versus not submerged lands and the concerns from staff at this point, because I thought we were past that issue. And I think we all concluded that under any circumstances, if you took that area of dispute between us and the state out, it did not affect the PUD from a legal standpoint. CHAIRMAN STRAIN: Okay, is there a concern that the water isn't considered preserve? Is there any viable reason that that needs to be a problem -- that is a problem? MS. BURGESON: The concern that I would have is without a thorough evaluation of what the exact boundary of that is, what the interface is between the mangrove fastlands and the water there, you may find that the state says that if they own the water, that the PUD does not own, let's just say, the first 25 feet of mangroves, because there may be some mean high water issue there, as opposed to a Page 73 January 11,2008 vegetative buffer issue, or the edge of the mangrove vegetation. And if that's the case, then the edge ofthat vegetation may be outside of the PUD document. And they would not have to go through a PUD -- the PUD process, necessarily, to maybe come in for consult on that edge. So I just have not -- I've not seen what the specific detail is as to where that exact line of ownership is. And I think that that's -- if the county attorney's office has determined that they still own that water, it seems more of a liability for staff to make a change and delete something without knowing all of the facts about it. CHAIRMAN STRAIN: Has the county attorney's office come back with any kind of conclusion? MR. KLATZKOW: I want the preserve listed there. There's a dispute about whether they own it or not. If they don't own it, then it's just -- okay, it's fluff. But if they do own it then we have protections now. CHAIRMAN STRAIN: So basically the concern is that if the preserve -- it doesn't include the water, and the water line is undefined. No matter where the preserve ends up being defined at some point, it's all basically a conservation easement to the county. Is that-- MS. BURGESON: In the original PUD documents, the preserve did include all that open water area. CHAIRMAN STRAIN: Right. MS. BURGESON: Right, and so -- CHAIRMAN STRAIN: If the state pulls back on the water and ends up with the water, and there's an undefined or gray area as where the water ends and where the mangroves start, it doesn't really matter, because the commitment would be that all the preserve area -- MS. BURGESON: Within the PUD. CHAIRMAN STRAIN: -- within the PUD is a conservation area. MS. BURGESON: Correct. Whether the state owns it or whether Page 74 January 11,2008 the property owner -- whether -- CHAIRMAN STRAIN: That sums it up then. Richard, is there any objection to that? MR. YOV ANOVICH: I'm just trying to understand what this really means. You want a preserve over open water? MS. BURGESON: We want it to remain as it is in the current PUD. MR. YOV ANOVICH: And I'm asking you the question, why do you need a "P" over open water? CHAIRMAN STRAIN: I think we're past that, Richard. I think what it boils down to is wherever your "P" lies is somewhat irrelevant. Basically any of the areas that are not water that are supposed to be part of a conservation easement will be part of a conservation easement, no matter where that water line is determined. MR. YOV ANOVICH: I just want to make sure I understand what I'm going to be required to give. Am I giving a conservation easement over open water? That's the question I have, Mr. Strain. CHAIRMAN STRAIN: I know it, but I thought that's what we just said -- MS. BURGESON: I can maybe answer that by going back to the PUD document. The PUD document requires that all of the identified tidal wetlands be set aside as a preserve. And all of the wetlands that are set aside as preserve also have to be set aside in a conservation easement. CHAIRMAN STRAIN: So basically it goes back to what I said, everything that isn't water that's supposed to be preserve by this map will be provided for in a conservation easement. MS. BURGESON: Right. Because the question of whether or not the state defines water at mean high water or at the edge of vegetation line, I don't know on this. CHAIRMAN STRAIN: Yeah, but by the language I just suggested it's irrelevant, because it's all conservation easement Page 75 January 11,2008 anyway. MS. BURGESON: Right. CHAIRMAN STRAIN: Now, if that works, is there an objection to it? MR. KLATZKOW: I just don't want 10 years from now the applicant taking the position and being successful on it that he owns certain lands that we thought the state owned but now in fact he owns, and now he develops it. I just want the conservation easement put on the whole thing. CHAIRMAN STRAIN: In the water as well? MR. KLATZKOW: Yeah. Whatever they've asserted that they own. And they've made the issue, not us. They've taken the issue that, well, we think we own it but the state says we don't, so at this point in time we're not going to fight it. That doesn't mean they're not going to assert those rights down the road. CHAIRMAN STRAIN: Okay, Richard, it boils down to a conservation easement over everything that you've asserted you own that's shown as actually west of that dark line on this PUD map. MR. YOV ANOVICH: Couple of issues. I'm not going to warrant title in the conservation easement. CHAIRMAN STRAIN: Fine. MR. YOV ANOVICH: We can't do that. Two, I've got to -- let me just ask the question straight up. If there's open water in that area as you've described, you're saying it's really over the mangrove areas, right? CHAIRMAN STRAIN: Ifthere's a dispute as to who owns the water and the state owns the water, then lets not dispute over where the line is. Just say everything, whenever the water ends and the other starts -- MR. YOV ANOVICH: I think the intent was is whatever mangroves or plants or whatever would be encumbered by a conservation easement, not open water. I think that's fair. Page 76 January 11,2008 CHAIRMAN STRAIN: Right. MR. YOV ANOVICH: My question is, if I do what Mr. Klatzkow is suggesting and I put a conservation easement over open water, are you now telling me, staff, county, everybody, we're not going to let you have boat docks in open water when we come through and do the process? I'm not saying we'd get them, but I have the right to come ask for boat docks. CHAIRMAN STRAIN: I don't think that issue is at debate here. I mean, that's not what I was thinking when I suggested that. MR. YOV ANOVICH: I understand that. But I want to make sure that staffs not saying to me, because this is what they want to do, Mr. Y ovanovich, you have a conservation easement over that, and boat docks are clearly not an allowed use in a conservation easement. That's all I'm asking. Let's just be honest with each other and let's find out. CHAIRMAN STRAIN: I guess Bill or Barbara, are you the most logical to answer that question? And then the county attorney to opine on it. MS. BURGESON: When we had discussions on this project as a PUD extension, or the boat dock -- I guess it was a pre-application meeting for boat docks on this as well -- one of the discussions was that the preserve area which covered not only the wetlands but the water would prohibit boat docks in a preserve. And our response to the applicant, and I'm fairly certain that it was either sent out or a call made to Karen Bishop stating that you would need to do a PUD amendment, at least a PUD amendment to the master plan to move or remove some of the preserve areas in order for you to request boat docks. The intent of the original PUD with the preserve over that entire area was that they would not have boat docks there. CHAIRMAN STRAIN: Okay, so you're saying that the boat Page 77 January 11, 2008 dock idea was never allowed pursuant to the approval of the original PUD? MS. BURGESON: It wasn't granted -- it wasn't granted as a part of the original PUD. I understand it was discussed at the board meeting, probably at the final Board of County Commissioners meeting -- CHAIRMAN STRAIN: Because we're not here to change-- MS. BURGESON: -- as a possible -- as a request that they could come back in the future and request that. CHAIRMAN STRAIN: We're not here today to try to change the original PUD. MS. BURGESON: No, we're not. CHAIRMAN STRAIN: We're trying to make sure the settlement agreement language doesn't conflict with the PUD, and where it does, make sure the board is aware of that. MS. BURGESON: Yes. CHAIRMAN STRAIN: So basically by accepting this bald eagle management plan and not exercising clear delineation of this preserve area could in fact provide access or ability to get docks that were not contemplated in the PUD; is that what it boils down to? MS. BURGESON: I couldn't answer that question. MR. LORENZ: I think the concept would be is any place where you change the preserve area boundary, now it's no longer preserve, that would be the location that you could put the docks. I think that's the -- for me that would be the issue. CHAIRMAN STRAIN: Because I don't want to give the applicant any more than he already has in the PUD. But at the same time we don't have a right to take it away either. So on that basis I'm trying to figure out how to move forward with this argument. MS. BURGESON: Right. I understand it was discussed in the pre-application meeting that they would -- the process would be to come in and amend the preserve boundary to remove some of the Page 78 January 11,2008 shoreline from the preserve boundary, and that would be the area that could be calculated for boat docks. CHAIRMAN STRAIN: Richard, are you familiar with that discussion that she just related to us? MR. YOV ANOVICH: The discussion about how you measure shoreline? CHAIRMAN STRAIN: No. Would you repeat your statement, Barbara. MS. BURGESON: The discussion that you would need to come in and do a PUD amendment to remove a portion of the preserve area from the shoreline. And that area, that portion could be used to calculate the amount of boat docks along the shoreline that you would be entitled to. MR. YOV ANOVICH: I don't remember any discussion about us coming in and amending the PUD to remove an area of preserve. CHAIRMAN STRAIN: Do you have any -- MS. BURGESON: That was as a result of the meetings regarding the boat dock requests, and I believe a phone call from staff to Karen Bishop relating to that. MR. YOV ANOVICH: The question was am I aware. And the answer to that question is I'm not aware of any of that. And let us all remember what a PUD master plan is. It's conceptual. It's subject to the actual permits we get through this process. We have our Corps and Water Management District permits. We're trying to make the preserve area consistent with our Corps and Water Management District permits. That's all we're trying to do. We're far along in the permitting process for this. You know -- and I guarantee you, had the Corps said to me, Rich, that preserve line has moved further east, they would not let me stop where that line is right now on my master plan for my preserve, they would have made me move further east. It moves based upon permitting, and that's where we are. Page 79 January 11, 2008 And we were never aware that by putting a "P" over water, that we were somehow prohibiting ourselves from getting boat docks in the future. Because, frankly, boat docks are an accessory use to residential development. We never -- and what we think is happening here is I think staff is attempting to now say put a "P" on that water and when you come in for your boat docks on the water, you can't have it because you have a "P" on there right now, which was never what we thought was intended. I think it's creative -- MS. BURGESON: The staff was requesting-- CHAIRMAN STRAIN: Barbara, you can't interrupt until he's finished. MR. YOV ANOVICH: And you know, I'm just -- this is all new to me. In this settlement agreement we were told take out any references to boat docks. At one time we had a discussion about how do you calculate the linear footage. Does an easement over your property mean that it's no longer yours for purposes of calculating your linear footage for how many boat docks you get. We were told take it all out, we're not going to talk about this during this process. We're just trying to get a master plan that's consistent with the real world and the conflicting claims over who owns the bottom of the open water. CHAIRMAN STRAIN: Richard, one thing we don't want to do is change your rights under the PUD, nor do you want, through this settlement agreement -- we've got to monitor what rights were there and what weren't there. Do you have any references in the PUD that provided you with boat docks as a use on this property? MR. YOV ANOVICH: We didn't have anything in the PUD document that prohibited us from having boat docks on this property, okay? CHAIRMAN STRAIN: Let's stop there then. You now believe Page 80 January 11,2008 that by putting this "P" over the water in the preserve area it would prohibit you from asking for boat docks? MR. YOV ANOVICH: I just asked a very straightforward question. If I come in now with a request to go through the permitting process for boat docks -- I'm not saying I'm going to win, but if I start the process, is staffs first response to me going to be Mr. Y ovanovich, you have a "P" on the master plan that's over the water and oh, guess what, where you've located your docks is over the water where there's a "P", end of story, you're not allowed to ask for boat docks. And I think the answer I just heard from staff is you're prohibited from asking for boat docks. CHAIRMAN STRAIN: I understand. MS. BURGESON: That was -- CHAIRMAN STRAIN: Mr. Klatzkow -- Barbara, you weren't recognized. Mr. Klatzkow? MR. KLATZKOW: I really don't want to change the PUD. The PUD has this listed as a "P". The PUD gives them certain rights of development under that distinction. And you know, whatever he has, he has. CHAIRMAN STRAIN: Well, I tend to like the other issue that Brad brought up in common architectural theme, that's an issue that's in the PUD. This is in the PUD. Why do we need this master plan attached to this bald eagle plan, it just confuses -- MR. YOV ANOVICH: It's not attached. CHAIRMAN STRAIN: Okay. Then why are we even discussing this part of the bald eagle management plan? MR. YOV ANOVICH: Because staff brought it up. They brought up the PUD master plan during a part of the bald eagle management plan. CHAIRMAN STRAIN: Your fights on your PUD will have to stand on their own grounds after these issues get done. They're not Page 81 January 11,2008 part of the settlement agreement. The bald eagle management plan is brought into the settlement agreement. It doesn't change your master plan in the PUD then because you don't have any new graphic for your master plan being modified, do you? MR. YOV ANOVICH: I hear you. Just so you understand, Ms. Burgeson suggested changes to this exhibit with the circles. We can't change because this is part of our permit from the Corps. So we can't change it as she is suggesting that we change it. CHAIRMAN STRAIN: I'm going to get to that issue. Let's just finish up this issue here. Ms. Caron, you have a comment? COMMISSIONER CARON: Okay, but Exhibit 3 then actually needs to come out because it does not coincide with what is in the PUD -- CHAIRMAN STRAIN: That was my suggestion. We just take Exhibit 3 out of the -- it's not a reference in the BEMP. Go ahead, Mr. Y ovanovich. MR. YOV ANOVICH: We need -- let me tell you why we need Exhibit 3. Because if you look at the old PUD document, you will see on the master plan that you have R, I think it's R-I, on the east side of Vanderbilt Drive. And you didn't have golf course, certain parts of golf course over on the west side. So you need to revise the PUD document, the PUD exhibit -- CHAIRMAN STRAIN: Richard, I'm trying to get past the bald eagle management plan. This master plan can be part of the revised PUD document or the settlement agreement. But for the discussion of the bald eagle management plan it doesn't have to be part of that. MR. YOV ANOVICH: And it wasn't. This reference to Exhibit 3 is to Exhibit 3 to the settlement agreement, not an exhibit to the bald eagle management plan. CHAIRMAN STRAIN: I know, but in a discussion to staff, it was pointed out, and I wanted to separate it out now, because we can Page 82 January 11,2008 go back to it not being part of this discussion. Go ahead, Mr. Schmitt. MR. SCHMITT: The only problem I have is legally -- and certainly Margie is aware of this -- the PUD had two master plans, and they -- whatever it was, Exhibit A and Exhibit B or whatever, and one -- both master plans were based on a certain impact of the bald eagle management plan, of accepting the bald eagle growth management plan. And frankly, is how we got to -- it's why we're here today, through -- because a year ago the board denied the amendment to the bald eagle management plan, which would have invoked the whatever -- I don't have the PUD in front of me right now. I could look it up. But there were two master plans, and one with and one without the eagle restrictions. So regardless, those two master plans have to go. And we still have to have a master plan. Whether it has to be tied to the bald eagle management plan is I believe the question you're asking. I don't think it does, but somehow I still have to have a master plan. CHAIRMAN STRAIN: Mr. Schmitt, I am trying to move down this whole discussion in an organized manner. If you look at the paper that was passed out at the last meeting, we get into the master plan discussion by Item 22 because it talks about Exhibit A, which is the PUD master plan that we're now talking about. I don't want to get into that discussion until we get there. I'm trying to eliminate issues that we're bringing up. Weare now talking about the bald eagle management plan, so let's resolve the issues on that plan specifically and we'll pull into the PUD master plan when it's brought up in the settlement agreement, which is on the last page of the settlement agreement. That would be a more appropriate time. We can focus our discussion on the merits of that plan and not so much on the merits of the bald eagle management plan. Let's get past Page 83 January 11, 2008 that plan first. So we've had staffs discussion on the bald eagle management plan. Now we're looking for comments from the planning commission on the bald eagle management plan. Who wants to start? (No response.) CHAIRMAN STRAIN: Okay, well, nobody's jumping up. First page of the bald eagle management plan is Exhibit B. Under project description, I would suggest that the following language be struck because it's irrelevant to the plan. Starts on the fourth line, the applicant will also propose to build a 35-slip boat dock facility. Any such facility requires further permitting by Collier County and is not approved by this bald eagle management plan. So why do we need it in this plan? Let's just get it out of the plan and let the plan stand on its merit. MR. YOV ANOVICH: The first sentence that you read is in the Corps permit. The second sentence was added by staff to make it clear we still have to go through the building permit process for -- or whatever the permitting process is for docks. So it's part of our Corps bald eagle management plan. CHAIRMAN STRAIN: Well, you can have it in your Corps permit. We don't need to accept that in this document. You can deal with it later. Why do we need it in our document too, just because the Corps has it? MR. YOV ANOVICH: As long as you're telling me it's not going to come back to bite me because we didn't verbatim quote the Biological Opinion, because that's what we were told to do originally as part of our bald eagle management plan is make sure we follow the Biological Opinion issued by U.S. Fish & Wildlife, I would agree with you. I just don't want to get tricked. CHAIRMAN STRAIN: I don't blame you. I have no intention of that. I'm simply trying to get these items separated out so when this Page 84 January 11,2008 boils down and there's a list of outstanding problems, we can focus on just those. Because right now we're mixing too many things in the same basket and they don't need to be because they're not part of one another. Now, in your question, when you need to be consistent with the Biological Opinion, this is purely a project description, it's not the nuts and bolts of the Biological Opinion. Can I ask either the county attorney or staff to tell me if they're required to have their project description consistent here with the Corps of Engineers permit? And if so, has that been done on every project in the past? MS. BURGESON: Staff reviews the final agency permits prior to issuing, say, a final SDP for every project. What we look for is the -- to make sure that the county's SDP approval is consistent with the agency's permit. So if the agency's per -- but specifically for those environmental issues. So make sure that the wetlands, preserve boundaries of the wetlands and the boundaries of the listed species areas are identical, and that buffers and setbacks are identical with the agency permits. But if there's something else on the agency permit, for instance, a water management issue, we don't review that. Or if there's boat docks shown on that, we don't review that. We're making sure that the environmental component is consistent with all the permits. CHAIRMAN STRAIN: Okay. Well, my question was as far as the project description goes, is it required to be part of the bald eagle management plan and to match up identically to the Corps permit -- project description? Just yes or no. MS. BURGESON: No. CHAIRMAN STRAIN: Thank you. That means we will not hold that against the applicant in the future by changing the project description to remove the two sentences suggesting about the docks. Is that a fair statement? MS. BURGESON: Yes. Page 85 January 11,2008 CHAIRMAN STRAIN: Thank you. Okay, back on the end of that statement, at the end of those sentences it starts out, construction activities associated with the project will impact 1.52 acres of freshwater wetlands. When it says with the project, Richard, which project is it they're referring to, the building of the eagle nest tree, the whole project together, what? MR. YOV ANOVICH: I'm told we can strike it because it doesn't matter. CHAIRMAN STRAIN: So that sentence can be struck as well. MR. YOV ANOVICH: Yes. COMMISSIONER CARON: Where are we striking? CHAIRMAN STRAIN: The one after it, the last one I struck with the following sentence, where it says, construction activities associated with the project will impact 1.52 acres of freshwater wetlands. That can be struck. Any objections from staff striking that language? (No response.) CHAIRMAN STRAIN: None, okay. The next sentence, to compensate for impacts to wetlands, the applicant has proposed to purchase mitigation credits from an approved mitigation bank. Aren't we saying you shall purchase mitigation credits? Barbara? MR. SCHMITT: We don't need that sentence. It has nothing to do with the BEMP. It's required by statute under Section 404, the Clean Water Act -- CHAIRMAN STRAIN: We'll strike that sentence then. Next sentence is to compensate for unavoidable effects to the bald eagle nest, yada yada, the applicant proposes to purchase and preserve suitable habitat for nesting bald eagles in and around the vicinity of Collier County. Isn't it again, wouldn't they -- isn't it shall instead of proposes to? Page 86 January 11,2008 MR. YOV ANOVICH: Shall what? CHAIRMAN STRAIN: Shall purchase and preserve suitable habitat for nesting bald eagles in or in the vicinity of Collier County and Southwest Florida. MR. YOV ANOVICH: I don't think that was a requirement of the permit. I think we have to try here first. If we can't find it we'll go somewhere else. CHAIRMAN STRAIN: By trying here, you mean with the artificial nest? MR. YOV ANOVICH: No, the artificial nest is separate. CHAIRMAN STRAIN: No, no, I'm saying -- okay, I see what you're asking. MS. BURGESON: But it does say in or in the vicinity of. CHAIRMAN STRAIN: Right. I'm saying that you're not proposing to purchase it, you're going to purchase it. All I'm saying is take the words propose to and say shall. Isn't that what you're going to do? MS. BURGESON: Yes. MR. YOV ANOVICH: This is not my area of expertise. When you make these changes, I have to look behind me to make sure what you're saying is okay. CHAIRMAN STRAIN: That's fine. So now the proposes to changes to "shall" in that sentence. Everybody comfortable with that? Okay. That's the last comment I had on that page. Does anybody else have any questions on that page? (No response.) CHAIRMAN STRAIN: The next page -- COMMISSIONER CARON: Yeah, I just -- CHAIRMAN STRAIN: Go ahead, Ms. Caron. COMMISSIONER CARON: Apparently your Biological Opinions have been updated as of February 27th? Is that from all the Page 87 January 11,2008 agencies, from Army Corps, U.S. Fish & Wildlife and Florida Wildlife? Yes, move out of the way. MR. WESTENDORF: For the record, Jay Westendorf with Vanasse Daylor. The dates that are listed here have to do with the U.S. Fish & Wildlife Biological Opinion and the u.s. Army Corps of Engineers permitting. There weren't any relevant dates from the state with respect to the bald eagle permits. CHAIRMAN STRAIN: Jay, were you sworn in at the last meeting? MR. WESTENDORF: Yes, I was. CHAIRMAN STRAIN: Thank you. COMMISSIONER CARON: So what you're saying is that you don't need either permits or an opinion from Fish & Wildlife, Florida? MR. WESTENDORF: I believe that that has been discussed, and I'll leave that up to the attorneys to discuss that issue. COMMISSIONER CARON: Okay. You're back on, Rich. MR. YOV ANOVICH: Well, the answer to that question, and I believe staff has the e-mails that the state says they will defer this to the feds. MR. SCHMITT: Commissioner Caron, the letter you referred to, February 27th, 2007, is a response directed to the U.S. Army Corps of Engineers, Colonel Grosskruger. And then I have a cover letter dated April 10th basically identifying that. So the Corps does in fact, based on the evidence that was given to us, amend their permit. And that's this document. Did you get a copy of this? This is the letter, and it goes down, all the way down. COMMISSIONER CARON: No, I did not. MR. SCHMITT: That's the cover letter. And the first paragraph is -- basically references the response from the U.S. Fish & Wildlife. Page 88 January 11,2008 And now we can talk about the state agencies. But this is basically -- and Jay, correct me ifI'm wrong, because it's your application. This says the U.S. Army Corps of Engineers has completed the review and evaluation of your modification request and received 16 April, 2007 in which you requested to add. And it goes on and on, basically citing the u.s. Fish & Wildlife and recognizing -- because how that works, the agencies respond to the Corps and then the Corps responds to the applicant. MR. WESTENDORF: That's correct, Joe, yes. MR. SCHMITT: This pretty much meets our requirement based on the feds. The state basically defers to the u.s. Fish & Wildlife. We confirmed that through an e-mail, a rather lengthy e-mail I have from the state. But in a nutshell, there are ongoing discussions at the state, but I cannot apply any ongoing discussions, I can only apply what we deal with today. And that e-mail essentially deferred to the -- basically defers to the Department of Interior, Fish & Wildlife Service, with their approval, the state approved. CHAIRMAN STRAIN: Any other questions on that first page? (No response.) CHAIRMAN STRAIN: Okay, let's move to the second page. And it starts with numeral three. We have three, four, five, six and seven as paragraphs. Basically it's the phasing of the project work around the eagle nest. Anybody have any questions or concerns about that page? (No response.) CHAIRMAN STRAIN: Okay, we'll move-- COMMISSIONER CARON: Yeah. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Boardwalks. Didn't we talk about the fact that you were asking them to remove boardwalks, and are Page 89 January 11, 2008 these the boardwalks that you're asking them to remove? That's number five. MR. YOV ANOVICH: Jay tells me no, it's not the same boardwalk. COMMISSIONER CARON: Thank you. CHAIRMAN STRAIN: Okay, the next page starts at the top. It says C, Additional Terms and Conditions. Are there any questions concerning this page? COMMISSIONER CARON: Yeah, number two. It says mid-paragraph, the territory must include sufficient area to accommodate alternative nest trees in the event that the primary nest tree is lost. And by whose actions are we talking about, the primary nest tree being lost? Is it construction of your towers? I mean -- MR. YOV ANOVICH: This is a different territory. This isn't our territory. COMMISSIONER CARON: I'm sorry, this goes to the -- MR. YOV ANOVICH: The mitigation territory. CHAIRMAN STRAIN: Any other questions on that page? (No response.) CHAIRMAN STRAIN: The next page starts on that page. Actually it's D, Conservation Measures, and goes into E and F on the following page. There was a suggested change by staff in E that talks about a little bit of clarity as far as any different revisions needed by the bald eagle management plan to be included in a rewriting of the management plan. Is that something that the applicant has a problem with, or is that acceptable? MR. YOV ANOVICH: You know, it's certainly a lot simpler to physically attach a document you get from an agency that's responsible for permitting and saying this is a revision to that Page 90 January 11,2008 document, versus retyping the whole thing and making sure we get it right. This has really never been an issue that's come up from a legal standpoint or a staff review standpoint. Why we would retype the whole document, I don't know, versus just attaching any revision. CHAIRMAN STRAIN: It says the applicant shall notify the county in writing of any revisions to the above described terms and conditions approved by the agencies listed above, and such revisions shall automatically become part of the bald eagle management plan. And no further action to amend this bald eagle management plan shall be required. MR. YOV ANOVICH: Right. CHAIRMAN STRAIN: So I would think then that if the agency required you to do something that altered your phasing on the project, you'd have to go in and modify the phasing sequence that's in the current plan. MR. YOV ANOVICH: What I would envision happening, Mr. Strain, obviously is if -- let's just say the numbers change. Instead of one, two, three, four, five, five, four, three, two, one. The flip. I would send a letter or someone would send a letter to staff saying enclosed please find the new phasing schedule for the bald eagle management plan. And it would go into the project file, right by the -- you know, within the PUD document, PUD file that staffhas. And it would be very easy -- I didn't envision retyping this document and attaching a new Attachment 1 to the document. CHAIRMAN STRAIN: Concerns? Barbara? MS. BURGESON: Yeah, staffs concern is it's not just that simple, if the eagles move into another nest tree, they could go back to the old one but they could go into a third nest tree in the area. Then it's just not a simple, you know, add a whole new bald eagle management plan to the second. It may just be too confusing to have two" Page 91 January 11,2008 completely different management plans, an original one and an attachment. So if necessary, if it's -- if the changes are significant, then it really is better for staff and everybody else to have one clean bald eagle management plan. CHAIRMAN STRAIN: But if the agencies require them to change the plan because of changed conditions with the eagle and they change the plan and the agency accepts it and they send the changes to us, isn't that the same thing? MS. BURGESON: Sometimes what they'll do is they'll just send an e-mail and some comments on how things may change, or what they may provide is just a new Biological Opinion. But it may not be in the format of a brand new clean bald eagle management plan that can just replace the old one. CHAIRMAN STRAIN: But they wouldn't provide an e-mail for a substantial change, would they? MS. BURGESON: We've gotten e-mail for trees that have been removed without permits. CHAIRMAN STRAIN: I know what you're referring to there. I just thought that -- I've read E, and I thought it gives you what you need in the sense they're going to -- if anything changes, they're going to send it to you. I'm not sure why we would want them to go through hoops for a format that we have when a format that they may have from the agency that the agency's accepted gives us the same information and we can read it. I just -- MS. BURGESON: If it's clear enough. What I'm concerned about is sometimes you'll get an attachment that is somewhat duplicative of the original document. If you don't have a strike-through, underline of the original document with the changes, it just may not be perfectly clear what the attached or amended changes do in every circumstance. Page 92 January 11,2008 CHAIRMAN STRAIN: Well, I can tell you, if one sentence came through and was changed one word in any of these pages here, I bet you guys would spend hours finding that, and you would, and you would come to us, because this thing has been so highly highlighted. So I doubt if anything will ever get through that hasn't been scrutinized by your department. You guys are focused on this. And I can't see you not picking out changes readily. I mean, that's not been your forte, at least. I'm not sure this needs to be modified at all. Does anybody else have a concern? (No response.) CHAIRMAN STRAIN: Let's move on to the next page under G, Reasonable and Prudent Measures. MR. SCHMITT: Commissioner Strain? CHAIRMAN STRAIN: Yes, sir. MR. SCHMITT: I'm going to throw this to the planning commission. The first two paragraphs on that page under D where we talk about the artificial tree. CHAIRMAN STRAIN: What page are you on now? I'm on-- MR. SCHMITT: I'm back under D again. You jumped down to E before we talked about the artificial tree. There's two paragraphs. It says, provide the necessary federal and state, local permits. That's all really nice, if you want that left in there, but that is not germane to the bald eagle management plan, that is a separate and distinct action -- MS. BURGESON: Outside-- MR. SCHMITT: -- outside the PUD. If you want to memorialize that, that's fine. But staff has no objection to having that whole section removed. CHAIRMAN STRAIN: Okay. But you know, the tree has been offered as a solution to concerns over the tree that may be lost. And staff has expressed in the beginning of their presentation that they're not going to like the idea of an artificial tree being put in an ST area. Now, I can't imagine why doing something better is all of a Page 93 January 11,2008 sudden disliked because of it's an ST area. To me that doesn't make any sense. But you know what, that's a fight you guys can have. And that's a fight the BCC can decide by this language whether they like it or not. Because I thought the idea that they were even going to attempt this artificial tree idea was a pretty positive thing. So why are we fighting about it? MR. SCHMITT: I support the artificial tree. It's just a matter of I'm just noting that since we were discussing language that may not be needed in there, that's all nice language. I'll leave it in there, it's all subject to, and that's fine, subject to acquiring the appropriate permits. CHAIRMAN STRAIN: Okay. Well, let's go to Item G then, Reasonable and Prudent Measures. Anybody have any questions there? I think they're nice things to say. I'm just wondering how you -- number two is a little -- detect the presence of bald -- since draft monitoring guidelines are used to detect the presence of bald eagles on the project site, and if present any abnormal bald eagle behavior, since site work and building construction within the primary zone is proposed to occur during the nesting season. That's fine. You collect all this stuff. But just out of curiosity, what good does it do? MR. YOV ANOVICH: I'm assuming it has some research value for impacts on eagles. We'll provide that information to the appropriate agencies, and they'll learn something from the operations and determine what they need to do. MR. SCHMITT: Jay, I believe you are required to monitor as part of the permit -- CHAIRMAN STRAIN: If you are, that's fine. I just was -- MR. WESTENDORF: These came right out of the Biological Opinion. These are requirements of the U.S. Fish & Wildlife. CHAIRMAN STRAIN: I'll rest my comments. Now, we brought up under -- Barbara brought up the concern Page 94 January 11,2008 over the distances on Attachment 1 to Exhibit 1 of the bald eagle management plan, and they used circles to show 250,500, 750, 1,000 and 1,500 feet. And she asked to have 330 and 660 on there. Richard is already concerned that that's inconsistent with their Corps permit. Would it be inconsistent with our request just to put them on in addition to the lines that are there? This isn't a Corps permit, this is us. MR. WESTENDORF: To specifically answer your question, yes, that can be done. To address Barbara's concerns that she brought up as to why these dimensions were chosen, this was -- CHAIRMAN STRAIN: I wasn't going there. You don't need to, unless somebody else asked the question. I simply want to know why you couldn't stick two more dimensions on this plan. You've got plenty of room on it. Couldn't you just do that? MR. WESTENDORF: Yes. CHAIRMAN STRAIN: Okay. Then fine, that will get done, too. That gets us through the bald eagle management plan. Has anybody got any other issues on this plan they want to discuss? (No response.) CHAIRMAN STRAIN: Okay, Mr. Klatzkow -- oh, Ms. Caron, I'm sorry, did you have more you wanted to discuss? COMMISSIONER CARON: Well, yeah, I'm a little concerned about back to E. And I'm trying to read this correctly. So that any revisions -- this bald eagle management plan seems to allow them the potential for some substantial changes on the SDPs. And we'd have to accept it. And we wouldn't get to review it. I mean, the Army Corps or somebody could require changes, significant changes to the site development plan and it would not come back to us at all. We would just have to accept whatever it was that they gave us. CHAIRMAN STRAIN: Aren't they referring here to the bald eagle management plan, not the SDPs? It says that may cause revision to the above described terms and conditions will not require further Page 95 January 11,2008 (sic), so it's just the terms that are in here they're referring to. COMMISSIONER CARON: Well, except that this is reflective of their development. This is all SDP, when they build and where they build and what mayor may not get built. CHAIRMAN STRAIN: Right. But if the -- well, I guess nobody else wants to address this. If the Fish & Wildlife or the Corps or anybody else suggests changes to nuts and bolts of the bald eagle management plan, then the only thing they have to do by paragraph E is notify us of those changes. It doesn't mean they can arbitrarily change their SDP without having to go through the SDP process to get there. If I'm wrong, tell me. COMMISSIONER CARON: As long as that's on the record for everybody. MR. SCHMITT: That's correct. And are you -- you're back at paragraph E? CHAIRMAN STRAIN: Right. MR. SCHMITT: When we first started the settlement agreement the intent of this was that if the eagles move again -- because normally you have to come in and do an amendment to the BEMP, and it's a public hearing. And what we were trying to do is allow for a little bit of an administrative review here, and I'll call it a little bit of administrative review as long as they're within the requirements of the permit, the federal and state permit. And if the eagle moves again, as Barbara said, may go to another tree, that it would be between the applicant and staff in reviewing the bald eagle management plan to come up with a sequencing, a phasing that may be different. But it doesn't give them any get out of jail free so to speak to change the PUD or the SDP. Those are clearly separate and distinct. All this does is allow us to change some of the BEMP to comply with potentially a bird relocating somewhere and changing some phasing. Page 96 January 11,2008 Is that pretty much, Rich, about a year ago we discussed this? MR. YOV ANOVICH: Joe, the intent of this paragraph is whatever the federal agency says to us about how we deal with the bald eagle will apply to this project. If it means we have to relocate a building, which means we have to amend our SDP, that's what we have to do. It also means that I don't have to go through a public hearing process to amend the bald eagle management plan to implement what the federal agencies tell us to do. We don't, frankly, want to be where we are today again. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: So if the Army Corps tells you or U.S. Fish & Wildlife tells you that you've got to move your building, you don't have to come before a public hearing? So the plan that we've been looking at, and they tell you you have to move it -- MR. YOV ANOVICH: I'm still subject to the SDP rules -- COMMISSIONER CARON: -- you don't have to come through a public hearing process? MR. YOV ANOVICH: Correct. But I'm still subject to the PUD requirements for that change to the SDP. And I'm still subject to the SDP rules. Just like, for instance, the way we talked about earlier is if we come in and amend the SDP and we move the building one foot, one building one foot and we have to amend our SDP, I'm not coming back to the planning commission. Same concept. CHAIRMAN STRAIN: If the Fish & Wildlife or any of those agencies come back with a change to the bald eagle management plan that requires a change to the PUD, then you have to come back through a public process. MR. YOV ANOVICH: Correct. If they moved us into a nonresidential area, yes. CHAIRMAN STRAIN: That's the same as anybody else. MR. SCHMITT: Same as anybody else. An SDP, if it's Page 97 January 11,2008 administerial in nature, it's a change to the SDP. As long as it's changed and meets the requirements as defined in the development standards, it would be -- well, depends. A substantial or an insubstantial change to an SDP. Those are not public hearings, those are administrative in nature. COMMISSIONER CARON: Well, substantial is. MR. SCHMITT: No, ma'am, substantial only means -- and there's always confusion on this. Substantial only means than it is a more intense process. It may involve water management and other elements. An insubstantial change is just a truncated review, meaning it goes to a few reviewers, because it is very specific in nature. It is not a shortchanging of the process. CHAIRMAN STRAIN: Okay. We left off on paragraph 13. And part of that paragraph was the bald eagle management plan. I think we've gone through the bald eagle management plan, we've got a series of changes. I want to make sure staff is aware of the changes we suggested to the bald eagle management plan. Was someone taking notes or cross-outs or strike-throughs as we were going along? Okay, so you know what language we struck. You know what things we suggested adding, like the circles at 330 and 660 feet. MR. SCHMITT: Yes. CHAIRMAN STRAIN: Okay. So we're all set on that issue. So we can get a draft of that plan back with a draft ofMr. Klatzkow's rewrite of the settlement agreement after today's meeting to make sure it checks out in our final reading of this whole mess. MR. KLATZKOW: Ifwe just get a reading back of what -- just for the record so Richard understands and everybody understands, we need a written. CHAIRMAN STRAIN: You want it right now? MR. KLATZKOW: Either now or at the end. CHAIRMAN STRAIN: No, it's fresh in our minds, let's finish it Page 98 January 11,2008 up. First page of Exhibit B, project description. We struck the paragraph in the fourth line, it starts with the applicant all the way through to the second to last line in about a little past the middle that starts with to compensate. MR. SCHMITT: As shown on the visualizer. CHAIRMAN STRAIN: Right. And then after, the word proposes to got changed to shall. MR. SCHMITT: That is shall, if you can't read my writing. CHAIRMAN STRAIN: The next change we had in that document was really to add the circles in the Exhibit 1, Attachment 1 to Exhibit 1, which were the circles at 330 and 660 feet. That's the best I can tell you from the notes I kept. Does anybody else have any others? MR. SCHMITT: That's all we have. CHAIRMAN STRAIN: Okay. Now, with that we're past the bald eagle management plan, we're back on paragraph 13. I'd like to finish paragraph 13 before we break for lunch. Paragraph 13, the substance of the changes are on Page 8 of our draft document for the settlement agreement. We've discussed the first four lines just now. The last two changes are a strike-through after the word SDPs and the addition of a sentence. Does anybody have any problems or concerns with those additional changes and strike-throughs on paragraph 13? (No response.) CHAIRMAN STRAIN: Does the applicant have any problems with those? MR. YOV ANOVICH: It should say shall not be considered -- I mean, it shall be considered insubstantial. I'm sorry. Yes, that's correct, the last sentence is right. CHAIRMAN STRAIN: Okay. Everybody is in conformance with that paragraph? Page 99 January 11,2008 (No response.) CHAIRMAN STRAIN: Fine. The next paragraph, I'm going to talk to -- ask the panel first, it's 20 minutes to 12:00. We can take an hour lunch break or an hour and five minutes, come back around quarter to 1 :00 and get ahead of the lines down at the place downstairs. Is that everybody's desire so we can get back here on time and not start late? Does that work? Okay. Well then, at this point let's take a -- it's a good time to take a lunch break. Let's do so. We'll come back here at 12:45 and resume. Thank you. (Luncheon recess.) CHAIRMAN STRAIN: Okay, everyone, welcome back from the lunch break. This is the Collier County Planning Commission meeting on the Cocohatchee settlement agreement issue. And as we left for lunch, we were trying to finish up with the bald eagle management plan. We have a member of the community that is here to speak. I didn't know that before we left for lunch, and so I certainly apologize for asking the gentleman to have to wait through lunch to come back and speak with us. But Margie, if you have the public speaker, if you could call, we'd be all set. MS. STUDENT -STIRLING: Mr. Tom Nelson. THE COURT REPORTER: Would you like me to swear him in? CHAIRMAN STRAIN: Yeah, you should, just to be consistent with everybody else. Mr. Nelson, you'll have to be sworn in. Cherie' will do that. (Speaker was duly sworn.) CHAIRMAN STRAIN: Thank you, sir. MR. NELSON: My name is Tom Nelson, and I'm with the Audubon eagle watch. I've been watching these two nests in particular and other nests for over 12 years now. And every year they have Page 100 January 11,2008 produced at least one or more fledglings, eaglets who fledged. And I want to thank Signature Corporation, and Dick Bing in particular, because they have been very good about letting us go back in there and observe these birds. And that's very important. And these eagles moved from the dead tree nest. That was the original nest that I started watching in '95. And this was closer to Vanderbilt Drive. And I feel that because of the construction on Vanderbilt Road and everything, probably they abandoned this nest. And then they moved to a new nest, which is a much better tree and a better location. In fact, it's really a great tree. But that being said, I feel that -- and members of my group and also the Bird of Prey Center up in Maitland, Florida, that any construction within 750 feet, which is a primary zone, during the nesting season would be detrimental to the eagles and forcing them probably to abandon the nest. That's my opinion. I could be wrong, but I don't think so. This nest has been a hard luck nest. We made two rescues at the old site. And last year the mother was electrocuted and one of the two eaglets in there starved to death and the other one fell out of the tree or was actually pushed out. And we rescued that. In fact, Dick Bing was in on that rescue. And getting back to the subject with the building and everything, I was surprised to see how close the two buildings -- the last two towers are to the nest tree. And so now we'll really get to see how resilient these birds are. And just lastly, I just want to say that -- and this has nothing to do with this nest site or Signature or anything like that, but I feel that if Collier County had its own bald eagle management plan it would be a big asset to the county. I have good respect for U.S. Fish & Wildlife and Corps of Army Engineers (sic), but I feel if we had our own county management plan, there would be a nest standing today that was chopped down last year. And I don't think that would have Page 101 January 11,2008 happened if we had our own. And that's all I have. Thank you. CHAIRMAN STRAIN: Are there any questions ofMr. Nelson? (No response.) CHAIRMAN STRAIN: Sir, I've got a question. When -- your issues and your background and history with this nest, did you go to any of the meetings involving the federal or state approvals of the take of this eagle to express your history and concern to them? MR. NELSON: I was at a meeting. It's been a couple of years ago. Yes, I did. CHAIRMAN STRAIN: Okay. Because they did issue permits to go ahead and build as the applicant's considering, which kind of ties our hands. And that's what I was wondering, if they took your concerns into consideration. MR. NELSON: Well, I don't know if they did or not. CHAIRMAN STRAIN: But they issued the permit. MR. NELSON: Yeah. CHAIRMAN STRAIN: Thank you very much. Are there any other questions from commissioners? (No response.) CHAIRMAN STRAIN: Mr. Nelson, thank you for your patience in waiting today. And again, I apologize for having made you come back after lunch. MR. NELSON: Thanks for letting me talk. CHAIRMAN STRAIN: You're welcome, sir. Thank you. The bald eagle management plan was discussed just prior to lunchtime, and the paragraph after that takes us into paragraph 14 in the settlement agreement. That's on Page 8. There's been some changes made to this particular paragraph by underlines and strike-throughs. Is there any concerns or questions from the planning commission members in regards to those? (No response.) CHAIRMAN STRAIN: On Page 9, there was an issue last time Page 102 January 11, 2008 that came up about the ownership of the submerged lands which we talked about previously. I think it was at the recommendation of the county attorney's office, it was deemed to be not needed, so the entire paragraph was struck. Anybody have any questions? Ms. Caron? COMMISSIONER CARON: Yeah, because we're going to do the strike-through and underlined version, is this going to end up in the new PUD? Will those recalculations be a part of that? CHAIRMAN STRAIN: I think that might be a question for the county attorney. Are we at a point where those calculations have been proven, or are they still, from what we discussed earlier, not solidified or not determined yet? MR. KLATZKOW: I think there's a difference of opinion. I mean, it's a question best asked of Mr. Y ovanovich. CHAIRMAN STRAIN: Okay. MR. YOV ANOVICH: You know, as far as, you know, this issue, we don't need that acreage as part of our PUD, so it probably is best, since there is a dispute over who owns that land, to take that land out of the calculations and revise the master plan to accurately reflect that which is the undisputed ownership of the property owner versus that which is not in dispute. So the answer to the question would be is we would take out the area where the DEP has said they own the water. We take it out, come up with the right calculations, the master plan would be -- appropriately reflect that. And you'd have your -- there would be no question as to what's the appropriate acreage for calculation and what is or is not owned, and where the "P" should be and shouldn't be. We know the "P" should be on lands we own and we don't know if a "P" should be on lands we don't own, so let's just get it all accurate. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Okay. To that end, Mr. Y ovanovich, it looks to me like the calculations here in this former Page 103 January 11,2008 paragraph 15, just so you can make note, if you subtract out the 127.92 acres from your total acreage, it doesn't come to 404.79, it comes 404.17. MR. YOV ANOVICH: Okay. COMMISSIONER CARON: And if you do the same -- Well, I mean -- MR. YOV ANOVICH: I hear you. COMMISSIONER CARON: It's like, I don't know who went to school here, but nine minus two isn't nine. And if you take out the same acreage from your open space, it comes to 180.08 as opposed to 173.5. CHAIRMAN STRAIN: Whatever the right acreage is, I'm sure that would end up being what's put in the strike-through format of the PUD. COMMISSIONER CARON: Well, I'm just making the correction, because it wasn't correct in what was going to be the settlement agreement, so -- CHAIRMAN STRAIN: Mr. Klatzkow? MR. KLA TZKOW: Again, I said this earlier, there's dispute over the ownership of this land. Right now this is designated as a preserve. They're not saying well, you know what, we may not own this so let's take it out of the PUD. Years down the line, if it comes out that they do own this now, they get it back, it's outside the PUD and we've lost the preservation status that they originally bargained for. I mean, I could take care of the calculation in the PUD as to whether or not they own the land. But if you take this out, we're then losing something from the PUD which we already have now. COMMISSIONER CARON: If you take it off the master plan? MR. KLA TZKOW: Right. COMMISSIONER CARON: If you take the "P" off the master plan. MR. KLATZKOW: Yes. Page 104 January 11,2008 CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: One question is, isn't the shoreline subject to storms and stuff anyway? Is that what you would determine your land, by some sort of determination of where the shoreline is today? MR. YOV ANOVICH: Yeah, it's the mean high water line if you don't have -- you know, it's a title issue, and I'm not a title -- T-I-T-L-E issue, and I'm not a title lawyer. The general rule is yes, you own from the mean high water line landward, unless you have certain conveyances from the state that also gives you land waterward of that mean high water line. We believe that we started out with a right to lands beyond the mean high water line. The state has taken a different position. It doesn't matter to us for purposes of calculating our density or for the use of that water as a matter -- as far as the state is concerned. COMMISSIONER SCHIFFER: My point is that due to the violence of Florida storms, I like the fact that the shoreline is totally within your PUD, because then it can move around all it wants and it doesn't affect anything. Thank you, Mark. CHAIRMAN STRAIN: Any other questions on paragraph 15? (No response.) CHAIRMAN STRAIN: So the way we're leaving it is struck out of the settlement agreement, right? MR. YOV ANOVICH: So we're not going to deal with it at all in the PUD? CHAIRMAN STRAIN: We didn't say that. MR. YOV ANOVICH: Why would you deal with it in the PUD if you're not dealing with it on the master plan? CHAIRMAN STRAIN: When we get to the master plan, I think that debate will be discussed further, so -- MR. YOV ANOVICH: I'm sorry. Page 105 January 11,2008 CHAIRMAN STRAIN: No problem. I'm trying to get through the document first. Let's get rid of all the paperwork on all the issues we can, then we'll save the big issues for the final battle -- final, as the county attorney puts it in some documents, an amicable solution. We'll seek an amicable solution. Paragraph 16 has no changes. I'm assuming we don't need any. Paragraph 17 on Page 9 has no changes but it does on Page 10 where it continues over. And with the CCPC recommendation language, there's -- will now be incorporated into the text of the document in a strike-through version for review. Is that okay? MR. KLATZKOW: I understand. CHAIRMAN STRAIN: Okay. Anybody have any concerns on Page 10? (No response.) CHAIRMAN STRAIN: There's some changes to paragraph 19 and paragraph 21 on the bottom. COMMISSIONER SCHIFFER: Question on 19. CHAIRMAN STRAIN : Yes, sir. COMMISSIONER SCHIFFER: The ex-elected official, ex-employees, what does that exactly mean? If you ever worked for Collier County? It seems like a tough clause. Is that a normal kind of clause, Jeff? MR. KLATZKOW: It's not a typical clause that I would write. I'm not saying there's anything wrong with it, it's just I don't know who drafted it. CHAIRMAN STRAIN: Oh, I do. Okay. MR. YOV ANOVICH: Your office? CHAIRMAN STRAIN: Yeah. COMMISSIONER KOLFLA T: Mark, are we covered under that? CHAIRMAN STRAIN: Are we? Page 106 January 11,2008 COMMISSIONER SCHIFFER: I don't think so. We're not elected, we're not employees, so we're free. CHAIRMAN STRAIN: Well, I'm not sure. No. COMMISSIONER SCHIFFER: But the point is how can you really bind an ex-employee as to how to behave? MR. KLATZKOW: I could take that out. It wouldn't be language I normally would put in. CHAIRMAN STRAIN: Why don't you fix that to like you would normally would put it in, since your department abnormally put it in? Enough said. Okay, paragraph 21. Ms. Caron? COMMISSIONER CARON: The underlined sentence at the end of Page 10, whose language is that? MR. YOV ANOVICH: Number 21 ? COMMISSIONER CARON: Yeah, 21. New 21. MR. YOV ANOVICH: I believe that's a standard integration clause that you'll find in agreements so that nobody could say they can point to a different document as the basis for their claim, that this is it. This is the entire document between the parties. If you'd like to take that out, that's -- I think Jeffs going to tell you you don't want to take that out. MR. KLATZKOW: This would be the type of thing I would put m. COMMISSIONER CARON: No, no, no, I just wanted to know who added it. MR. YOV ANOVICH: I did. COMMISSIONER CARON: Thank you. MR. YOV ANOVICH: You're welcome. CHAIRMAN STRAIN: When we had left off last time, we had gone through a series of paragraph analysis that I had passed out, and when we left off in this area, actually, we left off in paragraph 17. And Page 107 January 11,2008 I'm just going back and reviewing the comments from 17 and realizing not all of them had been addressed at that time. The last one, if you have the original sheet that I passed out, item number 19 talks about paragraph 17. And the last sentence there is where I had brought up an issue that I don't know if we resolved. It said Lodge likewise shall be entitled to a refund of all money provided under this agreement and release within 60 days written notice from Lodge, and Lodge shall retain the bald eagle management plan as permitted by this agreement and release. And that's if they weren't able to get all their various kinds of permits. Well -- and my concern was that the only money -- this says all money provided under this agreement and release. And the agreement and release incorporates the PUD. The PUD has Section 6.7(F) and (G) that requires certain commitments also by the developer. And based on this language, I'd be concerned that they be released of all that money as well, or refunded any obligations they have throughout the entire PUD since it's incorporated as part of the settlement agreement. So I was suggesting that there be some tighter language placed here to apply for only that money that has not been expended or committed through contract. At the point in time which you turn that money over, it's so late in the game that you're already going to have known where your permits are. But I certainly wouldn't want the county to have to come out of pocket to give back money they already spent on reliance that you guys are going to move forward. Any -- MR. KLATZKOW: I think I understand the arrangement. But I'd like Richard to explain his understanding of it since he negotiated it directly. MR. YOV ANOVICH: I believe the deal was that ifthere was a third-party challenge and this agreement is determined to not be valid, we get our money back. Page 108 January 11,2008 CHAIRMAN STRAIN: But you get to keep -- MR. YOV ANOVICH: Pretty simple. And we get to keep the bald eagle management money because you get to keep a release. CHAIRMAN STRAIN: But the release doesn't do us any good if there's a third-party challenge. MR. YOV ANOVICH: You get a release from our Bert Harris claim. CHAIRMAN STRAIN: You want to start discussing the merits of that? MR. YOV ANOVICH: We can. But you're asking what was the consideration for our getting our money back. CHAIRMAN STRAIN: But Richard, I think it's fine if we haven't spent the money on reliance of you moving forward. MR. YOV ANOVICH: And what had happened, Commissioner Strain, is we had this discussion in front of the Board of County Commissioners, and the Board of County Commissioners agreed that they probably ought to wait awhile before they start spending that money. And they control that. And they said we'll wait before we -- and I don't know what that period of time is, they will wait to spend the money to see if there's a third-party challenge. That was -- CHAIRMAN STRAIN: Well, then we talked last time then about the time limitation in which that would apply to be in accordance with the requirements of Florida law by the third-party challenge. I'd be more comfortable if we would be able to say in this document so the BCC would know that they aren't -- the third-party challenge by law could extend so many months or years, whatever it takes. That if they spend money prior to that, it's subject to this, but after that it wouldn't be. So maybe we need to put a time frame in here then from the execution date of this particular agreement. Page 109 January 11,2008 MR. YOV ANOVICH: I think you -- you know, you're going to have to ask your attorneys what they think the appropriate period of time for someone to file a third-party challenge is under the law, what they're allowed to do. I don't have a legal opinion on that one. CHAIRMAN STRAIN: That would be -- I'll put that down on the record books, huh? Well, did you have a comment, Mr. Klatzkow? MR. KLATZKOW: I'll double check the discussion that the board had. My recollection was the board said if they can't go forward with this project, they get their money back. That was my recollection. I will double check that and make sure that the board's intent makes it into this agreement. CHAIRMAN STRAIN: What I'm concerned about is what they meant by go forward. This project could start, they could get four buildings up, lose the permit on a fifth because of an eagle or something and all of a sudden fall back under this and get all their money back to day one. And I don't want to see that happen. That's all I'm trying to avoid. So if you'll look further into that. MR. KLATZKOW: Yeah. MR. YOV ANOVICH: Mr. Strain, that clearly wasn't the intent on our part. I think if we get the building permit issued for the first tower and we get to the point where that tower is fairly far along, and I would like us to use the word CO, whatever the right CO is for that tower, you're sure to get to keep the money. CHAIRMAN STRAIN: I'd rather the county-- MR. YOV ANOVICH: Because then what judge is going to set aside an agreement when we've gone that far along? I don't think that would happen. COMMISSIONER CARON: Then it should state that. MR. YOV ANOVICH: Well, I'm just trying to reach a compromise to what Mr. Strain was suggesting. He didn't want us to Page 110 January 11,2008 get four buildings done and then we get our money back. That certainly wasn't the intent. CHAIRMAN STRAIN: I'm not saying it was the intent. I'm worried about other parties who could interpret it differently should you decide to sell the property, should someone else take over, should a bank walk in who doesn't care about local situations. That's where I'm coming from. Jeff, will you consider that wording and -- MR. KLATZKOW: Yes, I will. CHAIRMAN STRAIN: Yes, sir. COMMISSIONER SCHIFFER: Is there a way we can get some sort of pro-rated -- I mean, if we use the word pro-rated, would that -- people obviously could fight over how much was pro-rated, but the word would mean that you don't get it all back, you'd get back what's a fair portion. MR. KLATZKOW: I think Rich and I could sit down and easily hammer this one out. CHAIRMAN STRAIN: On paragraph 17 there was also a reference, and if you look on item 20 on this sheet that was passed out last time, it's the second sentence, addresses the failure by Lodge to obtain federal permits. The language should be added that provides this is for federal permits relating to the original SDP stated in this agreement only. COMMISSIONER MURRAY: Original SDP. CHAIRMAN STRAIN: I think what happened is the numbers on this has changed between now and then, so I don't know where the 17 from before was versus -- COMMISSIONER SCHIFFER: Eighteen now, Mark. CHAIRMAN STRAIN: Yes, let's see. No, it's not 18. COMMISSIONER SCHIFFER: It is on mine. On Page 10, 17 has been struck through and 18 has been underlined, so -- CHAIRMAN STRAIN: Let me pull up the version I had from-- Page 111 January 11,2008 MR. YOV ANOVICH: The numbering stayed the same, though. Commissioner Strain, I think your reference to paragraph 17 is still paragraph 17. CHAIRMAN STRAIN: Okay. MR. YOV ANOVICH: It's on Page 9. At your bottom of Page 9, you're saying in addition, if Lodge is ultimately unable to obtain required, and the word local is struck. Right? CHAIRMAN STRAIN: Right. MR. YOV ANOVICH: It's still paragraph 17. CHAIRMAN STRAIN: Okay, the second sentence-- MR. YOV ANOVICH: Your page numbers are different because you didn't have this document where we had added paragraph 15 to it when you made your comment. CHAIRMAN STRAIN: Okay. And what I was trying to say is where it says in addition, if Lodge is ultimately unable to obtain required, and it said local, state or federal permits, then you're entitled to your money back. And I would like further clarification, that it's -- and you've struck local and state and left it federal permits. But I'd like it in reference to the construction as noted on the SDPs that are part of this settlement agreement. MR. YOV ANOVICH: Why don't you just say federal permits for the SDPs. And again, since they're all going together to the board, it's going to just be a matter of the board approving the settlement agreement. In order to get the SDP letter of approval, we have to already show we have our federal permits. It should work. CHAIRMAN STRAIN: Okay, so for the SDPs as incorporated in this document. MR. YOV ANOVICH: Yes. And remember, when this first was drafted this was before we had gotten our federal -- our modified federal permits, for lack of a better word. Page 112 January 11,2008 . CHAIRMAN STRAIN: Okay. On paragraph 18, and it's paragraph 18 in this draft, how that ended up being the same, I don't know. At the end of the paragraph, add language to assure that the failure of permitting docks is not subject to paragraph 16, which is now 17. Whoa. We didn't change 18, though. Oh, yeah, we did it as a parenthetical. Okay. Well, that takes care of those. On Page 10, paragraph 21 was the -- and paragraph 19, if we hadn't already asked questions of those, does anybody have any questions or concerns about those two paragraphs and the changes? (No response.) CHAIRMAN STRAIN: Turn to the next page, Page 11, start at paragraph 22, that's the last page of this document. There were no changes suggested for 22, 23 or 24 or 25. They're all clean-up paragraphs to the end of the document, talking about effective dates and county and Lodge acknowledged issues. Does anybody have any concerns or questions there? COMMISSIONER SCHIFFER: One question, Mark. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: In 24, down at the last sentence, it references that Lodge states it's not aware of any facts that would prohibit construction. Does that concern itself with building code issues? Are you in a simultaneous building review? MR. YOV ANOVICH: I don't believe so. COMMISSIONER SCHIFFER: So would that contain building code issues? Like, for example, we haven't allowed scissor stairs for a while and this design has them, so that would prohibit construction. CHAIRMAN STRAIN: Well, but they don't know of anything that would prohibit construction. COMMISSIONER SCHIFFER: My question really is, is it building code or is it planning and zoning issues? Page 113 January 11, 2008 CHAIRMAN STRAIN: Do you know of anything that's going to prohibit construction, period? MR. YOV ANOVICH: No, and we've asked for the reciprocal. Is the county aware of anything that's going to prohibit us from getting our SDPs approved? COMMISSIONER SCHIFFER: Then let's exclude building code review from this clause because you haven't had any review. County can't assure you of anything. MR. YOV ANOVICH: We were focusing on zoning, PUD related concerns. COMMISSIONER SCHIFFER: So -- CHAIRMAN STRAIN: Does that help or hurt us, Jeff? MR. KLATZKOW: I don't think we need it. We can only represent what we know as of this date. If nobody is actually going through something, nobody knows, whether it's us or them. CHAIRMAN STRAIN: So why would we want to exclude things -- MR. KLATZKOW: I think we're okay, Brad. I think the idea here is that there's nothing in anybody's back pocket. COMMISSIONER SCHIFFER: All right. CHAIRMAN STRAIN: Okay, that gets us through the settlement agreement. We provided a lot of comments, we've talked through every one of them step by step. The next document in line would be the exhibit, the graphic, which is the original -- no, which is the master plan that came with the version of the settlement agreement that we were starting with last time. MR. YOV ANOVICH: I know we're going to get to that. I just want to make sure, Mr. Strain, we're all comfortable with this one-fifth Exhibit, Exhibit No.2, which is how the property gets subject to the deed restrictions. Because the one you're going to talk to is number three. I just Page 114 January 11, 2008 want to make sure we're all okay with Exhibit 2. CHAIRMAN STRAIN: Well, I'm looking at Exhibit A. COMMISSIONER CARON: We haven't gotten to Exhibit 2 yet. CHAIRMAN STRAIN: We have Exhibit A as the first exhibit on the back of the settlement agreement that I received on 11/11 from staff. What do you call yours? It's dated 08/29/00, revised 10/05/07. It's the one that was on the back of my particular settlement agreement. You have another one called Exhibit 3, which appears to be the same thing. MR. YOV ANOVICH: Okay. CHAIRMAN STRAIN: You have Exhibits 1, 2 and 3. They appear to be similar, close to the same thing that were attached -- no, they're not the same thing. The original settlement agreement. There's been many versions that I've -- I've got them all here. COMMISSIONER MURRAY: Somewhere. MR. YOV ANOVICH: I've got them all up here. I'm looking for a reference somewhere in the PUD -- I'm sorry, the settlement agreement to an Exhibit A. I'm just not finding one. I find an Exhibit 1, which is the bald eagle management plan with its attachments. And Exhibit 2. CHAIRMAN STRAIN: Well, then I've got an Exhibit A that doesn't need to be in my possession, I guess. I don't disagree with you, Richard, I just was going by what's attached, so -- I do have Exhibits 1,2 and 3 as well. The problem I have is I'm not sure my Exhibit 3 is the one you're -- no, it's not the one you're dealing with. COMMISSIONER MURRAY: I have Exhibit 3 and Exhibit A. They look to be the same thing. CHAIRMAN STRAIN: Does anybody have the true three exhibits that were attached to the back of the settlement agreement? Page 115 January 11,2008 I've got a series of them, but apparently not all of them are right. MR. SCHMITT: The original attachments from the August meeting? CHAIRMAN STRAIN: No, the original attachments that were to be considered as part of the settlement agreement. I can't give you dates, because I don't know now which one -- MR. KLATZKOW: It's these, right? COMMISSIONER CARON: It's attached to the original PUD. MR. YOV ANOVICH: That's a different -- okay. Ifwe look at paragraph -- let's go to the settlement agreement. Page 7, paragraph 12 is the first time we refer to the revisions to the PUD master plan, okay? And we refer to that -- to the revised master plan as Exhibit 3. And the date on that, the last time it was revised was 10/05/07. And that's what I'm going to put on the visualizer. CHAIRMAN STRAIN: Yeah, that one I have. MR. SCHMITT: This one is going to change because they changed it with the circles. That's the BEMP one. This one, I believe they reversed the sequence. That's Exhibit 2. So Exhibit 1 and Exhibit 2 are -- CHAIRMAN STRAIN: What's your Exhibit 3? MR. SCHMITT: Exhibit 3 is the master plan. CHAIRMAN STRAIN: That's not the one they're presenting to us, today, Joe. MR. SCHMITT: No, they're not. They're changing that as well. CHAIRMAN STRAIN: Okay, that's the problem. We've got a series of master plan changes. Do you have a master plan with you that you're trying to discuss as part of the settlement agreement today? MR. YOV ANOVICH: I put it on the visualizer, 10/05/07. MR. SCHMITT: The difference between the one that was originally part of the packet, the one that you have, the master plan, they removed the "P" from the water. This one is penciled it back in, Page 116 January 11, 2008 but our discussions have removed it again. MR. YOV ANOVICH: No, it wasn't. MR. SCHMITT: I thought we removed it at one time. MR. YOV ANOVICH: This one doesn't have the "P" in the water. There's no "P" in the water. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Yes, sir, Mr. Schiffer? COMMISSIONER SCHIFFER: On Page 2 down at the bottom, number two, it states what exhibits are part of this agreement. It says the original PUD. Could we -- it says the bald eagle -- the revised bald eagle plan and this agreement. So what -- MR. SCHMITT: Can I make a recommendation for the record? We walk through the exhibits. CHAIRMAN STRAIN: That's what we're going to do, Joe. We're trying to figure out what are the right ones, though. MR. SCHMITT: Well, the first one was the bald eagle management plan. Jay, you had the one with the circles on it now. The amended -- CHAIRMAN STRAIN: Mr. Murray, did you have something you have to help? MR. SCHMITT: The dimensional circles, which we are then going to add the 330 and 660 circles, concentric circles as well. CHAIRMAN STRAIN: Mr. Murray might have something to help. COMMISSIONER MURRAY: I hope so. I have Exhibit A and I have Exhibit 3, and if you look up at the top there where in Exhibit A it says golf course, Gc. And if you look at the configuration of the R and the GC, that looks to be considerably different than Exhibit 3 which showed a jog down from the golf course. So that line has changed. And the area of the "R" looks considerably changed. Are you visualizing what I'm -- Page 117 January 11,2008 CHAIRMAN STRAIN: Yeah, I think -- I know-- COMMISSIONER MURRAY: So it's more meaningful than just something with a "P" on it. CHAIRMAN STRAIN: Let me ask, Joe, you were working towards what you believe are the correct documents. Do you have any reason to believe this? Can you and Richard agree that they're the correct, so we're reading off the right one? We have so many, I'm sure we looked at them all. MR. KLATZKOW: I think I've got the right ones. CHAIRMAN STRAIN: You do? MR. KLATZKOW: I think I do, yeah. I know it went to the board and then got kicked back to you. CHAIRMAN STRAIN: Which ones do you have? MR. KLATZKOW: I've got -- the first one is an attachment to the bald eagle management plan to the settlement agreement. MR. SCHMITT: I'm going to put it on the visualizer. MR. KLATZKOW: I think that comes out now since-- CHAIRMAN STRAIN: Let's see what that one is. Let's make sure we all -- MR. KLATZKOW: That was number one. The second one has the group of increasing squares. CHAIRMAN STRAIN: Right. The second one is the preservation easements on the golf course. MR. KLATZKOW: That's right. MR. SCHMITT: This one, as of today, was amended. And so just for the record, there will be a new Attachment 1. That's the one that Jay had that had the circles. CHAIRMAN STRAIN: Okay, why don't-- MR. SCHMITT: And then we were going to add the other concentric circles for the other dimensions. CHAIRMAN STRAIN: Okay, then let's show that one so everybody knows that was the one that was submitted and that is the Page 118 January 11,2008 one that we've accepted as a substitute for the one you have on here. MR. YOV ANOVICH: Keep in mind, Mr. Schmitt, that the first bald eagle management plan that went to the board was the old. MR. SCHMITT: Correct. MR. YOV ANOVICH: And staff asked us and you all asked us to revise it. So the document that originally went to the BCC is not the revised and updated bald eagle management plan. So that's why you have some discrepancy on the exhibits there. CHAIRMAN STRAIN: Joe, could you put that new exhibit-- okay. MR. SCHMITT: This is the new attachment one, as I said below. So just for the record, this is Attachment 1 to Exhibit 1. And Exhibit 1 is the BEMP. This will be the new Attachment 1 to Exhibit 1, correct? CHAIRMAN STRAIN: Good. And we previously discussed that. The only change to this one is going to be two more concentric lines at certain distances from the eagle's nest. MR. SCHMITT: 330 and 660 concentric circles as well. CHAIRMAN STRAIN: Let's go to the second exhibit. MR. SCHMITT: The second that was the original was this map -- whoops, upside down, and I believe, didn't you not change the sequence? Because this goes, five, four, three, two, one. MR. YOV ANOVICH: No, that stays the same. MR. SCHMITT: That stays the same. CHAIRMAN STRAIN: Okay. Now the third one. That's the one that started all this. MR. SCHMITT: This is the third one that originally went to the board. This is Exhibit 3 to the agreement and the release. CHAIRMAN STRAIN: What's being proposed for the third one? MR. SCHMITT: That was being proposed with the master plan. CHAIRMAN STRAIN: No. Now what's being proposed? Page 119 January 11,2008 MR. SCHMITT: Now it's being proposed. CHAIRMAN STRAIN: No, no. Now what is being proposed? MR. SCHMITT: Now what is being proposed. That is what Mr. Y ovanovich had. MR. YOV ANOVICH: The only difference that I could tell between those two documents is there's no longer a "P" in the water. There was a "P" here. CHAIRMAN STRAIN: Thank you, Joe. (Microphone feedback.) CHAIRMAN STRAIN: I guess that must mean something. MR. YOV ANOVICH: Okay, you're right. And what ended up happening is this GC area right here was squared off up here to reflect the actual golf course area to be a rectangle and not whatever that shape is. CHAIRMAN STRAIN: Okay. MR. YOV ANOVICH: Right. And then the "P" in the water came out. There's a "P" in the water you can see here. There's the "P" in the water and that came out. CHAIRMAN STRAIN: Gotcha.' Ms. Caron? COMMISSIONER CARON: One other question. From the original master plan, why did the preserve area boundary change there along the area of Pelican Isle Yacht Club, across from Pelican Isle Yacht Club? Why did that boundary change? MR. YOV ANOVICH: This area right here? COMMISSIONER CARON: Right. MR. YOV ANOVICH: That changed because that's the actual permitting that was approved as the preserve area from the Corps and the Water Management District. That is what they have determined to be the preserve. And if you read the PUD document, it says it's conceptual, the lines will move based upon permitting. Since we already had the Page 120 January 11,2008 permitting, we thought we would make it accurate to what has been approved by the Corps and the Water Management District as the actual line of the preserve. So that's that explanation for why that shifted. And the "P" in the water came out to reflect the discrepancy between us and the state as to who actually owns it. CHAIRMAN STRAIN: Okay, so the issues on this plan, now that we've got to the right one, it's the Exhibit 3 that's on the board right now. The changes have been somewhat described. And there are probably two issues that are going to be the most concerning to us, and that is the "P" in the water was removed. We started discussing it earlier, and we probably need to resolve that discussion now. And along the southern middle portion there, there's a chunk of land that went from mostly preserve to a neck of uplands that leads out to the water. Obviously it provides water access, which dovetails into the dock issue. So with those two things to discuss, anybody else have anything else that they think is pertinent on this plan? COMMISSIONER SCHIFFER: I'm not sure, one question. You know, Rich, we have two residential zones, R-I and R-2. Where are they shown? MR. YOV ANOVICH: You formerly had two. Now we're just down to one. The bigger "R" is all on the west side of the road. The former R-2, I believe it is, I think -- or sometimes referred to as the finger, I think, that went away and it's all golf course. COMMISSIONER SCHIFFER: Yet the PUD still carries it? MR. YOV ANOVICH: Remember, that's what -- what this settlement agreement is doing is modifying the PUD master plan. And I guess we'll come back to some other format of doing this. But yes. COMMISSIONER SCHIFFER: Okay. All right. CHAIRMAN STRAIN: Brad, hopefully the intent is before the Page 121 January 11,2008 day's over we'll be able to recommend a strike-through version ofthe PUD that will fix all that. Okay, let's just get on to the first issue about the movement of the "P" from the water. Basically, it was eliminated, and the only "P" involved is now in the preserve area. Mr. Murray? COMMISSIONER MURRAY: I'm mindful of what Mr. Klatzkow had counseled. And also, it occurred to me that if the settlement agreement were in place and sometime in the future you were to be able to utilize that property, not only could you possibly develop, but the question of density comes up to my mind. You would then -- would you have to go through a process again or what, if you wanted to keep the beloved "P" out of the water? Excuse me. MR. YOV ANOVICH: Ifwe -- this could degenerate pretty quickly. The bottom line is this: Under the comprehensive plan I believe we're entitled to up to three units per acre. I think we're in a traffic congestion zone in this area, that's why it's not four. I could be wrong. It doesn't really matter. Because under the three, if you take the water out of the equation -- I think at one point it was paragraph 15, I'll tell you where we're at -- we would be at a density -- it goes from 1.11, if we count the water, to 1.46 if we don't count the water. So from a density standpoint it doesn't change. The PUD would still stay at the 590. But from a consistency with the comprehensive plan, we don't have an issue from that perspective. So that's why from our perspective it didn't matter. If the state wants it they can have it, because it doesn't hurt us from a calculation standpoint. COMMISSIONER MURRAY: But you wanted to avoid having the letter "P" at that location so as to some time in the future be able to Page 122 January 11,2008 obtain the rights to use that, no? MR. YOV ANOVICH: No. We always believed that we had the right to put docks in the water to serve our project, whether the state owned it or we owned it. If the state owned it, we had to verify, whatever the process is, that it's acceptable to put docks in the water. Ifwe owned it, then it's a different process. We always knew we had to come to the county to deal with whatever county regulations there were to put those docks in there. But from dealing with the state, it didn't matter to us. COMMISSIONER MURRAY: And I think I understood that. The question, I guess, is to go or no go. If it's designated preserve you're out of it, you can't do anything about the docks, correct? MR. YOV ANOVICH: And again, I didn't do the original rezone way back when. But my understanding from what has been told to me is that there was always an intent, whether there was a "P" on that master plan or not, to have boat docks in the water. COMMISSIONER MURRA Y: I didn't know you could have it m a preserve. MR. YOV ANOVICH: And that's what has apparently changed and has been, I guess, clarified from your environmental staff earlier when they said ifthere's a "P" in that area, we're not going to let you put boat docks, because that's not a permitted use in a preserve. COMMISSIONER MURRAY: And of course that has value, and that's what Mr. Klatzkow was relating to, the settlement agreement changes the value if later on they're successful. So I think that's something for us to consider, certainly. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Richard, is this a big area or is this something you could isolate on this map and give it another connotation, let us put a "P" in the water and then just show that as a potential area? MR. YOV ANOVICH: For what? Page 123 January 11,2008 COMMISSIONER SCHIFFER: For your docks. Or do you know where they're going? If you have a permit going, don't you have them laid out and everything? MR. YOV ANOVICH: And I don't know exactly where, but yeah, I think we know where we would like to put the docks as we go through the county process. COMMISSIONER SCHIFFER: Maybe isolate that area and take it out of this conversation. MR. YOV ANOVICH: The docks have always been along this area right here. So if you want to exclude -- if you want to just put an area, you know, in roughly this position, and then put a "P" down here and a "P" up here -- "P" down here and "P" up here and no "P" in here, that's fine. COMMISSIONER SCHIFFER: I think maybe that's a way to solve it, that's all. COMMISSIONER MURRAY: Sounds like a decent idea. CHAIRMAN STRAIN: Mr. Klatzkow? MR. KLATZKOW: This is a policy issue that, you know, is the board's discretion. I mean, you can designate the whole thing "P" but say you can put docks in here as part of this agreement. I think Mr. Y ovanovich's issue is that he thinks he can put docks in here even as a "P", but environmental staff is saying no, you can't. MR. YOV ANOVICH: I'm just going by what was the intent when the original PUD master plan was adopted. And the intent was to be able to put docks where the "P" was, subject to all the required permits. CHAIRMAN STRAIN: Mr. Schmitt? MR. SCHMITT: Yes, the plan as I believe, is to build 35 boat slips. That would require, as required by our Land Development Code, a boat dock extension application, which has to be vetted through a public hearing. So the second issue, at least for the record, I believe that portion Page 124 January 11,2008 of -- we have no SDPs that show any development in that portion of the master plan. Right now the three SDPs that we have in-house, none of them cover that portion of the development. My concern, though, and just for the record, even if this line is moved as shown, there's still requirements for county permitting, and there may be, I'll say -- I'll use the word may, may be a requirement placed to still hold preserves in that area because they're critical mangrove fringe. And we have an issue that we still have to bring back to the board regards to the allocation of docks and how docks are defined. And that was one of the critical issues. And that's -- I can't remember, is that part of this LDC package? Did you all look at that already? Because some of it I've been looking at and some we didn't. But anyway, there are critical mangroves in that area and -- I mean, that's maybe an argument for another day. I just want to make sure we recognize, number one, that there are SDPs in-house. We've asked for anything or any indication of any docks be removed. So they're not in any of the SDPs. And whether the state moved the line, that doesn't necessarily mean that the county recognizes the state moving the line. CHAIRMAN STRAIN: Well, in a preserve area aren't you allowed to have a boardwalk? MR. SCHMITT: Yes, you are. CHAIRMAN STRAIN: So even if that line didn't get removed and it was preserve, they could still have a boardwalk out to the docks, which is what they'd probably have to build anyway -- MR. SCHMITT: That's correct. CHAIRMAN STRAIN: -- because there's probably-- MR. SCHMITT: For the record again, that's correct. And then they certainly do have riparian rights. They can -- but that is a part of the public petition process for the boat dock extension. This is a residential -- yeah, it's a -- it's not a commercial Page 125 January 11, 2008 endeavor, it's residential. And residential requires a public hearing for a boat dock extension. CHAIRMAN STRAIN: What was the purpose, then, of moving the line? MR. YOV ANOVICH: Just to make it consistent with the permits we received from the Corps and the Water Management District. CHAIRMAN STRAIN: And why do you think the Corps and Water Management District set the line where it is? MR. YOV ANOVICH: I wasn't there, I don't know. Jay -- oh, Jay's not here. They went through the review and approval, we had to give them the environmental data, and they said here's where the preserve area should be and here's where the preserve area doesn't have to be. CHAIRMAN STRAIN: Because if they moved the line there to show occurrences (sic) with the preserve area, why is the line out into the water? That's the only place on the plan that that preserve line goes into the water. See where that little hammer -- where it goes out to the west, bends down, goes into the crosshatched area that's water, then back up and in again? I mean, it couldn't have an issue with preserves out in the water. COMMISSIONER SCHIFFER: Isn't that area residential on this? MR. SCHMITT: If you pulled up the -- and I don't have any aerial maps, but that is the Coconilla Marina down in that area, and these docks would be across from the Coconilla Marina. CHAIRMAN STRAIN: But what you're trying to -- Ms. Caron? COMMISSIONER CARON: If you look at Exhibit 4, it shows it a lot clearer. MR. SCHMITT: Exhibit 4. CHAIRMAN STRAIN: Where did you get Exhibit 4? Page 126 January 11,2008 COMMISSIONER MURRAY: I don't have a 4. CHAIRMAN STRAIN: I don't have a 4. COMMISSIONER CARON: I don't know, it came in something we had. CHAIRMAN STRAIN: I don't have a 4. COMMISSIONER CARON: All right, where did I get this? CHAIRMAN STRAIN: I don't know. MR. YOV ANOVICH: This is the sidewalk exhibit. CHAIRMAN STRAIN: Okay. MR. YOV ANOVICH: That's what 4 is, is the sidewalk exhibit. COMMISSIONER CARON: But does it show this area clearer? CHAIRMAN STRAIN: Well, I had asked the question about why that preserve line extends out into the water and hooks back in again. I see your gentleman's here who does the environmental. Since you don't, Richard, can he respond to that? MR. WESTENDORF: I think actually, now that you've brought up Exhibit 4, that's a fairly good explanation in and of itself. The PUD master plan was never intended to be an exacting document with respect to where the environmental lines were. Keep in mind this document originally dates back in 1999 when it was drafted and approved in 2000. Exhibit 4 shows post permit line work. So it's accurate surveyed jurisdictional and permitted lines. The PUD master plan is not. It's conceptual in nature. There's a note right on it that says these lines may change. So the one line in the area of the boat dock area that was permitted by the Corps and the District was moved to be consistent with where the permitted line was. But it's still not an exact document with respect to permitted lines. CHAIRMAN STRAIN: Okay. Why is that preserve line shown in the water? I'll keep asking that question until you can answer it or you can tell me you can't answer it, because if -- don't use the plan Page 127 January 11,2008 that's on the overhead, use the one that's Exhibit 3. It shows a dark black line and it has a squared edge on the far western end of it. Why is that in the water? You certainly can't tell me that you expected to find preserves in the water. MR. WESTENDORF: When the exhibit was revised, the line wrapped around where the permitted boat docks extend to, to answer your question. CHAIRMAN STRAIN: Okay, so now there are boat docks in the area already? MR. WESTENDORF: There are permitted by the Corps and the Water Management District boat docks in that area. CHAIRMAN STRAIN: Okay, thank you, that's the explanation I needed. COMMISSIONER SCHIFFER: And Mark, I think that line is the boundary of residential so that they could bring residential into the water. It's not the boundary of a preserve. CHAIRMAN STRAIN: Well, one side is. COMMISSIONER SCHIFFER: One side for part of it is. CHAIRMAN STRAIN: Okay, as far as the issue on the "P" in the water, let's resolve our recommendations or our conclusions on that. That has an impact on obviously the way this environmental staff believes they're going to look at this project when it comes in for boat docks. Boat docks are not part of to day's discussion. The applicant claims they were part of the original PUD. That's for another group, I guess, to decide. Anybody have any thoughts on how that "P" ought to be looked at? Ms. Caron, then Mr. Schiffer. COMMISSIONER CARON: Well, I would suggest that we follow the county attorney's suggestion on that end, put the "P" back on the plan. Page 128 January 11,2008 CHAIRMAN STRAIN: Well, we would recommend then that the commission leave the "P" there because of by removing it might provide avenues for boat docks that have yet to be determined, or -- we've got to give them a reason why we want it there. We just want it there for what? I mean, we're suppose to kind of define -- MR. KLATZKOW: It reduces development rights down the future, whatever those development rights might be. CHAIRMAN STRAIN: Did you say reduce development rights? MR. KLATZKOW: Yeah. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: My thought is, looking at this now, what if we took -- essentially that's a residential boundary. What if we ran -- and since it does include water, what if you had that line wrap around the area that you want to put the docks and consider that area and the water in it as it is on this drawing to be part of residential? CHAIRMAN STRAIN: The docks aren't an issue on this. That's like giving permission for docks. We're not here discussing docks today, Brad. COMMISSIONER MURRAY: But if they can't get them-- COMMISSIONER SCHIFFER: What would determine whether they get docks or not? CHAIRMAN STRAIN: Well, if I was them I'd want to make the record as clear as possible as a trail that I've always I intended to put docks in, you knew I intended to put docks in, I said I wanted to put docks in. In fact, you even gave me a plan and outlined where my docks could go. Now for you to refuse that? That's the argument I would be trying to set the pattern for. COMMISSIONER SCHIFFER: Well, I mean, your point is that if you do that then they'll have the rights to put docks within that area. And we don't want to determine that today? If you put the "P" in, by prior testimony you won't be allowed to Page 129 January 11,2008 put docks in, so we're determining that today then. CHAIRMAN STRAIN: No, the "P" is what was in the original PUD. I think what the county attorney suggested is we could recommend that the original PUD's reference to where the "pillS were located remain the same on the master plan that's put forth now, and that by removing it, as we should notify the BCC, could open the development up to additional development benefits that they didn't currently have under the interpretation of the current PUD. Now, that's what we'd be saying. We're not taking a position on whether the docks are there or not, we're simply saying by taking the "P" off you risk this. They may feel the risk is okay, but that's the advice I think they're looking from us. MR. YOV ANOVICH: Here's the PUD master plan. Do we all agree this is Exhibit A that shows the residential development? CHAIRMAN STRAIN: Well, you've made me so dizzy moving it around so much. MR. YOV ANOVICH: That's my goal. Here we go. All right? That's the PUD master plan that exists today, all right? If you'll notice, the only portion of the water that has a "P" in it is this portion up here. There's no "P" south. CHAIRMAN STRAIN: Rich, Rich. MR. YOV ANOVICH: Okay? There's a "P" in one place in the water. It's not in both locations. And you'll see a very explicit line that is -- ends at the PUD boundary that shows the "P" is up here. This just shows it's water. This is water without a "P", this is water with a "P". Six on one, half a dozen on another, because the lines can move because they're conceptual, okay? If you wanted a "P" in all of the places, you would have put it here as well because you did in the preserve areas that are marked a certain way that you wanted preserve. So there's no "P" in all of the water, just in one piece of the water. So we should -- let's just move on, we'll leave the "P" on that Page 130 January 11,2008 part of the water. We'll take it out. The lines can move. And we'll deal with the boat docks when the boat docks should go through. CHAIRMAN STRAIN: Right. And Richard, I think what we're trying to say is our recommendation was to leave the "P'''s where they were on the original master plan. That's what I said. MR. YOV ANOVICH: I just want the record to be clear that the "P'''s were not in all of the water on the original master plan. COMMISSIONER SCHIFFER: But Richard, there's an island there that doesn't have a "P", and I'm sure that mangrove island was intended to be preserve. MR. YOV ANOVICH: Ifwe're going to start splitting hairs, we'll split those hairs later. COMMISSIONER SCHIFFER: But lift your slide up, you'll see that your logic kind of fails on that island. CHAIRMAN STRAIN: I think that the consensus of the board is that the "pillS within the water and the "P'''s on the master plan that were attached to the original PUD stay as they were, that's our recommendation to the -- COMMISSIONER VIGLIOTTI: I agree. CHAIRMAN STRAIN: Now, the second item on this plan that's changed is that movement of the line where their proposed docks might go. What is the thoughts from this board on that? That was not on the plan we had a minute ago on the overhead showing the original PUD plan did not have that access or that stretch of land along the common property line south of the "P" that's in the preserves there. MR. YOV ANOVICH: Well, here's the PUD master plan. CHAIRMAN STRAIN: Right. MR. YOV ANOVICH: Move it -- am I going the right direction, Mr. Strain? CHAIRMAN STRAIN: Yeah. You're not using the speaker, though. Page 131 January 11,2008 MR. YOV ANOVICH: As you can see, in looking at that -- and where's my pen, so I can use it as a pointer. There it is. As you focus in closer, you'll see there's white area here and white area there. There was white area adjacent to the water. All we did was move this line to be consistent with the permitting that we got from the Corps and the Water Management District. Because again, a PUD master plan is conceptual, it's not a surveyed master plan. All we're doing is moving it to be consistent. And there was white area down there. It's not like it went all the way down to where there was absolutely never going to be white area down there. So the lines are moveable. If you don't want to move them, that's fine. Just keep in mind, it's a conceptual plan, it can be moved. CHAIRMAN STRAIN: Okay, as far as that goes, you have to prove to the county the location of that line. It's got to be acceptable to the Corps, South Florida, all the agencies. So if you move the line to where you show on this new plan, whether you use the original master plan or not, it's irrelevant, you get the ability to move it. MR. YOV ANOVICH: Yes, sir. And we've done that through, I believe, the SDP documents we've already submitted that shows where the Corps and the Water Management District say the lines should be. . We get to the same place practically, whether you put it on the master plan or you don't. We thought we would just go ahead and reflect what the real world is today, now that we know what the real world is. CHAIRMAN STRAIN: Any comments on that piece of the plan? Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Just a quick statement. This preliminary was subject to the approvals of the state, correct? CHAIRMAN STRAIN: Right. I mean, the state and the Corps Page 132 January 11,2008 have provided permits to them apparently that reflect the delineations you see on this plan. COMMISSIONER VIGLIOTTI: That will supersede this drawing here. CHAIRMAN STRAIN: Yeah, this is a concept plan. Mr. Murray? COMMISSIONER MURRAY: That being the case, should they be made at least exhibits in this settlement agreement so that it helps to clarify the issue? Or does it help to clarify? CHAIRMAN STRAIN: I think it would confuse it, because they actually have the permits for the docks with those permits. That would just bring in a whole new -- COMMISSIONER MURRAY: I thought maybe if they've had the line delineated where that location is, it would help, but apparently that's not real. No. Okay, don't even go there. CHAIRMAN STRAIN: Any other comments on this particular line? (No response.) CHAIRMAN STRAIN: Is the consensus that that part of the plan is not an issue we need to point out to the BCC? COMMISSIONER VIGLIOTTI: I agree. COMMISSIONER SCHIFFER: I agree. CHAIRMAN STRAIN: Okay, then where we left this is that Exhibit 3 as presented on the aerial needs to have the "P"'s put back in the places that are on the original master plan before it goes -- as part of the -- MR. YOV ANOVICH: I just want to agree so when we go back and modify that, is that where I add -- roughly I add the "P" to make it consistent with the original master plan? CHAIRMAN STRAIN: As long as it's consistent with the original master plan, Richard. I'm sure -- MR. YOV ANOVICH: I think it is. I mean, I'm generally putting Page 133 January 11,2008 it in the right place. COMMISSIONER VIGLIOTTI: That looks close enough. In the top portion. CHAIRMAN STRAIN: Are there any other exhibits that we have that are part of this -- oh, the sidewalk exhibit. MR. SCHMITT: Exhibit 4. I think we ought to show that for the record again just to make sure we know it's Exhibit 4. Rich, vertically and graphically challenged. COMMISSIONER VIGLIOTTI: And horizontally challenged. MR. YOV ANOVICH: We made that clear in '07. COMMISSIONER VIGLIOTTI: It's one of those renewable Issues. CHAIRMAN STRAIN: Okay, this provides the location of where the sidewalk was supposed to go. It was a question from-- because it wasn't referenced last time. It's now Exhibit 4. Anybody have any questions or concerns about Exhibit 4? COMMISSIONER VIGLIOTTI: No. CHAIRMAN STRAIN: Okay, Exhibit 4 will go forward like it IS. That gets us through the settlement agreement, the settlement agreement's exhibits. It gets us through the bald eagle management plan. And I think that gets us to -- let me make sure we've got -- yeah, we went through passive, single-family. They provided a series of graphics that are on the SDP, so I guess the best way to discuss those is get right into the SDPs. COMMISSIONER SCHIFFER: Mr. Chair, one thing. CHAIRMAN STRAIN: Yes, sir. COMMISSIONER SCHIFFER: Before we leave the settlement, could you look on Page 2, Jeff, and down at the bottom two, could you in there make it clear that there's four exhibits? I mean, our fumbling is proof that it needs it so -- it states that the document shall consist of the original PUD and then say this agreement with the Page 134 January 11,2008 following four exhibits, so that the commissioners, when they review it, know exactly what's in the settlement agreement and what drawings are not part of it? MR. KLATZKOW: Yes, sir. CHAIRMAN STRAIN: Okay, anything else before we go on? I think the next item is the SDP packages. Now, those were supposed to be reviewed in the context of helping us to understand what the intent and purpose of was the settlement agreement in regards to its interpretation and impact on the PUD. So while there's a lot of data on that SDP, much, much more data than what pertains to our mission here today, I need to ask, we need to go through the process about how we want to handle the SDPs. We have a series of heights, elevations and setbacks for all the structures. We have structures on there that aren't well defined in the PUD that the applicant I'm sure is -- in fact, I believe we've got some standard tables now to discuss. There's some landscaping issues to go over. And let's see, the second floor is no longer an issue. Is that -- why don't we start with the graphics that came in. We had five pages of graphics. MR. YOV ANOVICH: Are you in the SDP now? CHAIRMAN STRAIN: Well, there are pages that are out of the SDP and there are pieces ofthe SDP. And it might be the simplest way to work our way into the SDP. And this is the first page of the five. COMMISSIONER SCHIFFER: Mark, I have a question. CHAIRMAN STRAIN: Yes, sir, Mr. Schiffer. COMMISSIONER SCHIFFER: What is the outcome of us reviewing the SDPs? I mean, for example, does that mean that we're saying everything in the SDP is proper? I mean, essentially the settlement agreement states that in this Page 135 January 11, 2008 agreement is any deviations that they request from the SDP. Other than that, isn't it all staffs job to do it? Is it our job to check staff? You know what I'm afraid the issue we're going to get back on to. CHAIRMAN STRAIN: I know. But I thought where we were going with the SDPs was purely a supplemental information for us to understand the terms of the settlement agreement, how they're being interpreted and incorporated into the SDP. For example, your issue on habitable height. That's the perfect example of why we needed to see the SDPs. I don't think any of us are water management engineers or people like that that need -- or piping engineers that need to get into the details of the connections and all that. But I think that we would look at the setbacks in the SDP, and are they what we believe the settlement agreement intended. And if they didn't intend it or it's different than the PUD would have allowed, we need to point that out. But that's the extent of it. I didn't see us getting into every little nut and bolt of the connections and detailed portions of the SDP. COMMISSIONER SCHIFFER: My thought is that since we removed the deviation of setbacks, that's a good issue to look at, then it's purely up to staff to review the SDP. Other than that, we're second-guessing staff in their review of the SDP. CHAIRMAN STRAIN: And I don't disagree with you. I have very few comments in the SDP. However, in going through the SDP, I did find that there were no development standards for accessory structures or for, like, the clubhouse. In the golf course section of this PUD, you have a clubhouse height limitation of -- you have a height limitation of 20 or 25 feet. Their clubhouse far exceeds that. So I couldn't understand where they got the standard from. And then I found out there really wasn't a Page 136 January 11,2008 standard. And I think they're proposing standards in some of the paperwork we've got in front of us here. So that's why I would suggest we move through those five pages of graphics first, and then we can get in -- and once we analyze those, it may eliminate all the questions we may have on the SDP. And those, for everybody's reference, are the one that starts with the setbacks from Vanderbilt Beach Drive. They have attached to them two tables that are in the SDPs as well. And then there's a graphic showing a landscaped buffer, and of course the berm doesn't have a height on it, that's a problem. And a couple more details and then the second floor plan of the building. So the first one of those plans is an exhibit showing the setbacks in relationship to Vanderbilt Beach Road, and actually between the towers, both the towers and the garages. Same type of setbacks that are on the SDP. So I'd certainly like to open up the discussion, starting with that document. Does anybody have any -- now that we've spent some time on the settlement agreement, we better understand how it applies. Do we have any problems, questions or concerns with the settlement agreement's application versus the PUD application on that site plan that was provided to us? It's not the tabled one now, it's just the graphic one to begin with. Anybody have any issues? COMMISSIONER SCHIFFER: Well, Mark, what are we going to do, are we going to approve these and say yes, these are acceptable dimensions for this building? Because obviously you know where I'm going to be. I thought booting the side setback back to staff kept us from endorsing those setbacks. CHAIRMAN STRAIN: No. In fact, I don't think we were asked to approve the SDP. We were asked to approve or recommend conditions -- we were asked to provide an analysis of the settlement agreement. Because the settlement agreement referred to the SDPs, we Page 13 7 January 11,2008 need to look at the SDPs to make sure that everything is there. It didn't say we have to like it or we have to agree with it, it simply has to be consistent with what is in the intent of the settlement agreement. And if it isn't, we need to tell the board that. COMMISSIONER SCHIFFER: Obviously the side setbacks are measured improperly. The distance between buildings, I'm sorry. CHAIRMAN STRAIN: Why do you think that? COMMISSIONER SCHIFFER: Because I don't think that the distance is one-half the sum of the heights. CHAIRMAN STRAIN: But the PUD -- in two sections the PUD allows for common architectural theme, which eliminates that criteria as testified to by staff. COMMISSIONER SCHIFFER: No, I don't agree with that. That's your impression. This is my impression. And when I went to school -- I have a planning degree, I'm an architect and planner. From my interpretation this does not meet the separation distance between buildings. We went through it already and staff trumped me, so I don't know why we're persisting here. CHAIRMAN STRAIN: Well, if you guys don't want to review the SDP, I don't need to review it, because I came through my review only needing a couple of things. I'll be glad to fall back on the issues I had problems with, and that was the fact there were no development standards for the clubhouse and the cabanas. And if that's -- go ahead, Mr. -- MR. YOV ANOVICH: I believe, and I hope you got the e-mail that I forwarded from Jay. Actually, I sent it to Jeff and I think Jeff sent it to you. I sent it Friday, January 4th to Jeff. And I'm pretty sure he forwarded it to you. It was a suggestion that we essentially incorporate the -- for all structures other than the high-rises, we incorporate the R-2 development standards into the PUD document for all of the other Page 13 8 January 11,2008 structures. Let me bring -- if you don't mind, Mr. Chairman, I'll bring you the e-mail that I'm referring to. Then I'll put it on the visualizer. I'm getting that puzzled look. CHAIRMAN STRAIN: I may have, Richard. Yeah, I think I did. COMMISSIONER MURRAY: That one I have. MR. YOV ANOVICH: It's to address your concerns and staffs, frankly. And hopefully where we're going to lead to is that we'll have a new development standards document that will essentially look like the PUD. It will be attached, there we will be one document where everything will be together. And we would suggest in that document that we would incorporate these development standards to address things other than the high-rise buildings. The cabanas, you know, the height of the clubhouse and things like that would find their way in. And we're suggesting using the R-2 development standards for everything but the high-rises, essentially. CHAIRMAN STRAIN: I think that works from my review of the SDP. How about the rest of you, any concerns? COMMISSIONER SCHIFFER: Adding this one, just this one? CHAIRMAN STRAIN: No, no. Well, if you read this particular e-mail and you go to the PUD and look at the development standards table, they have an R-2 column. That formerly was labeled multi-family. I think they're trying to say now that that will be all other structures other than the high-rise and those structures delineated elsewhere, because under the golf course section you do have another set of standards that you don't want this to interfere with. MR. YOV ANOVICH: Right. COMMISSIONER SCHIFFER: Right. But my point is we're only bringing in the development standards for clubhouse, cabanas and maintenance buildings. Page 139 January 11,2008 CHAIRMAN STRAIN: No. Well, I mean, that's what it applies to now, but it would be any other structures other than -- the R-2 would apply to other structures other than high-rise, with the exception of those under the golf course standards. MR. YOV ANOVICH: In the "R" district on the PUD master plan. CHAIRMAN STRAIN: Right. MR. YOV ANOVICH: Right. COMMISSIONER SCHIFFER: I mean, I see a chart that has three different uses, different numbers in each category. So are you saying you're going to blend them together? CHAIRMAN STRAIN: This is the chart we're using. COMMISSIONER SCHIFFER: Okay. So we're not going to use this chart? CHAIRMAN STRAIN: That's the chart from the PUD to show staff what the regulations are and what they were providing. This would be where you would find your standards in the PUD. COMMISSIONER SCHIFFER: So we're going to scratch this and use the second column. CHAIRMAN STRAIN: That chart that you were first talking about, that's from the SDP. COMMISSIONER SCHIFFER: Correct, okay. CHAIRMAN STRAIN: The standards on that chart should match up with the standards that would be on the Table 1 under the R-2, which now says multi-family, but which will be changed to accommodate all the other accessory structures -- all the other structures. COMMISSIONER SCHIFFER: I haven't checked that, but -- it doesn't match the numbers. MR. YOV ANOVICH: I think when we come back and you see a development standards table that incorporates everything together, it's going to be a lot easier to understand. I think, Mr. Schiffer, you're Page 140 January 11,2008 looking at an SDP table, not a PUD table. COMMISSIONER SCHIFFER: I'm looking at both, I think. For example, the maintenance building, you wanted to regulate it to be 20 foot high. Yet if we went to the second column, it could be 30 feet. CHAIRMAN STRAIN: No, no, I said exception. And I said that twice. The maintenance building, which is under the golf course section doesn't apply to the "R" section. And the "R" section is the only one these development standards apply to. COMMISSIONER SCHIFFER: Okay. Then I'll wait to see it. CHAIRMAN STRAIN: Okay, Ms. Caron's going to wait, Mr. Schiffer's going to wait. Anybody else have any concerns or issues? COMMISSIONER VIGLIOTTI: I'm okay with it. CHAIRMAN STRAIN: The SDP packages that you received then, assuming that we rewrite the PUD with the strike-through version, are there any other questions on this project from either the SDP package or anything else you received or have at this point before we get into discussing the merits of the strike-through SDP? Mr. Schiffer? COMMISSIONER SCHIFFER: Back at the table in the PUD, are we going to change the column under R-I at all? We were given a hand-out that has different -- so we're going to scrap the handout that was from the SDP and stick to what was originally in the -- okay. Thank you. CHAIRMAN STRAIN: Okay, any other questions? (No response.) CHAIRMAN STRAIN: Then I think, Mr. Klatzkow, you're going to be working on a rewrite and incorporating new language, I understand. And then the only other thing we have left to discuss is the PUD strike-through version. And I'm sure that the rest of you feel, as I probably do, that it would be a lot simpler to have a strike-through Page 141 January 11,2008 version of the PUD presented for final review along with the final draft of the settlement agreement at another subsequent meeting and be done with this. Is that the consensus of this panel? Anybody disagree? (No response.) CHAIRMAN STRAIN: Does the applicant have any problem with that? MR. YOV ANOVICH: No. MR. SCHMITT: For clarification for the record, the strike-through and underlined version will include everything that is addressed in the settlement agreement. CHAIRMAN STRAIN: Right, it will tell us how the settlement agreement interacts with the PUD. Please, would you guys work that with the applicant before you all get here so we don't have a whole discussion about the terms that do and do not apply? I'd rather you have most of that argument and then come back here with the synopSIS. MR. YOV ANOVICH: At the risk -- the building height definition. Are you going to use the one we proposed? CHAIRMAN STRAIN: Richard, we have a building height for habitable in our code of laws. You propose another one. I'm not sure why we need a second one if we already have actually -- we have one in the definition section of our code of laws. I think either one of them covers you. MR. YOV ANOVICH: It does. My only concern is it's not like the county doesn't get in there and sometimes change its definitions. CHAIRMAN STRAIN: Well, why don't we put -- why don't you incorporate that definition into the PUD that's in the code of laws. MR. YOV ANOVICH: That's fine. I thought what I drafted was pretty similar, and we'll do that. COMMISSIONER CARON: Just do it again. MR. YOV ANOVICH: I'm with you, we'll do it. Page 142 January 11,2008 CHAIRMAN STRAIN: Why don't we just not change things. It would be nice if we had consistency. COMMISSIONER VIGLIOTTI: Keep it simple. CHAIRMAN STRAIN: Okay, so everybody's on board, we know where to go with this. I think that we finished this discussion today. And with that we would have a continuation to another meeting. And Mr. Schmitt was kind enough to anticipate that little issue and provide us with a series of dates. The first one is February 14th. COMMISSIONER MURRAY: Oh, Valentine's Day. CHAIRMAN STRAIN: It would be 8:00 to noon in this room. I would hope that we could finish this up in one morning. COMMISSIONER MURRAY: Did you say 8:00 till noon? COMMISSIONER SCHIFFER: What day of the week is that? CHAIRMAN STRAIN: That's a Thursday, in between our regular meetings. 14th. That's just one of them. There's a whole series of dates here, but let's start with the 14th. And the second one is the 25th, which is a Monday. And that time we're available the whole day we could have this room for. So we may want to look at the 25th, because just in case -- I can't imagine us running over again, but in case we do, we could go on the 25th and be here from 8:30 in the morning until 8:00 at night. COMMISSIONER SCHIFFER: I think that's bad for me. The ICC meeting. CHAIRMAN STRAIN: The 14th works for -- how's the 14th work for everybody? COMMISSIONER SCHIFFER: The 14th works good. CHAIRMAN STRAIN: Okay. Well, if we come in on the 14th, we need to come in with the intention of starting at 8:30 and being done by noon, because that's the only time frame we can keep this room for, okay? COMMISSIONER SCHIFFER: That's good. Page 143 January 11, 2008 COMMISSIONER VIGLIOTTI: Thursday, the 14th? CHAIRMAN STRAIN: Thursday, the 14th, yep. COMMISSIONER VIGLIOTTI: 8:00 to noon. CHAIRMAN STRAIN: 8:30 to noon, right. MR. SCHMITT: I need for the applicant to understand that that is a fairly -- though it seems like a long time, it's a short time. We're going to need their focused cooperation in getting documents to us, the county attorney finishing its portion as well. You're going to want the documents on the 14th, we're going to have to get them to you in the mail out minimum by the 7th. CHAIRMAN STRAIN: Well, that's a meeting date. What I would suggest is the only thing you send us now is the draft version of the settlement agreement, as we've discussed, and a strike-through of the PUD. We don't need anymore SDP plans. But we will need an acknowledgment from staff that the SDP plans that they have by the date of our next meeting are consistent with the agreements that we have in front of us. MR. SCHMITT: All right. Well, then I need to turn to the applicant, to Jay and his team. Today's the 11 tho I've got to take everything that we've discussed -- MR. KLATZKOW: No, I'm going to be doing that. MR. SCHMITT: Well, they've got to take it and apply it now to the SDPs as well and get a resubmittal to us. I'm going to need that -- I'm going to need a resubmittal and we need to do a review. So you're going to want some kind of a testament, I guess, or us attesting to the fact that the SDPs are in compliance as well. I am looking to the applicant here. They've got time frames to meet and I've got to have at least -- CHAIRMAN STRAIN: Richard, we have March 3rd open if you want more time. But it's either the 14th of February, the 25th of February, March 3rd, or you could even go to March 18th. MR. YOV ANOVICH: I thought what we were trying to do was Page 144 January 11,2008 make sure we have a development standards document that we can all live with, and then staff will then apply that development standards document to whatever our submittal is, with the goal that our submittal, our revised SDPs consistent with this new development standards document will ultimately go to the Board of County Commissioners at the same time. I don't know why we would have to have the SDPs resubmitted, re-reviewed before we come before you all, because you're just setting the development standards. You're not going to be actually reviewing the SDPs for consistency with those development standards, are you? CHAIRMAN STRAIN: Well, I don't think we need to. And I don't know if -- does this board feel the desire to get into those plans? I don't think we need to. Well, then we don't need to worry about the SDP. MR. SCHMITT: That's fine. But the commitment -- and I want to make sure Rich understands that when we bring this to the board, that's with your recommendations, your basically recommendation of approval, I assume, by that point of the settlement agreement, the PUD. And with that I want to be able to tell the board as well that the SDPs are in compliance and ready to be approved, subject to the approval and signature of the settlement agreement. So that's what we would bring to the board. Is that not correct? MR. YOV ANOVICH: I thought we were bringing them both at the same time. MR. SCHMITT: That they both come at the same time. Staff would approve -- MR. KLATZKOW: I just want this over. MR. SCHMITT: Right. MR. KLATZKOW: I mean, the settlement agreement, PUD, SDPs, all at once for the board. CHAIRMAN STRAIN: For the board. But this panel can finish up with the settlement agreement and the PUD at the next meeting we Page 145 January 11,2008 have. And then the staff reviews everything subject to those. Mr. Schmitt goes forward and says yes, the SDPs are consistent with what the planning commission recommended, here's where we're at. And then if the board changes it, so be it, but at least we've gotten that far with it. MR. SCHMITT: That's fine. Then that basically gives the applicant more time for a submittal -- MR. YOV ANOVICH: And we could be done in about a week, Joe. We didn't want to put you guys in a position to have to get it done in a week. MR. SCHMITT: That gives me time, based on -- subject to your approval of the 14th, it gives the staff the time to review and have a reviewed settlement agreement, a strike-through and underlined PUD document that is commensurate with the settlement agreement. And then we will sometime, whenever that date may be, and that's up to the county attorney and us with the manager to define a date to bring this to the board. But when we bring it to the board we will then affirm to the board that the SDPs are in compliance as well. CHAIRMAN STRAIN: Ms. Caron had a comment and Mr. Murray had a comment. COMMISSIONER CARON: I just wanted to ask you to repeat what you said about setting the development standards. MR. YOV ANOVICH: What we're going to essentially do is we're going to revise the PUD document. It's going to become a development standards document which will show heights or whatever setbacks, whatever we just talked about changing, the R-2 standards becoming the standards for everything but the high-rises. All of that is going to be in one document. You're going to say yes, this is what we recommend the development standards document should be to go to the Board of County Commissioners. And then we have the burden of submitting an SDP that's consistent with those development standards that are Page 146 January 11,2008 going to be in that document. We'll get that to staff in short order. But to put them in a position, make sure that the development standards document is done accurately so you can review that and review all the documentations to make sure it's consistent with that I think might be putting staff in a hard place to get that done by the 14th and run the risk of errors. And nobody wants that. We're all trying to make sure that this is done accurately, the SDPs are consistent with the development standards document, and the board can have all that in front of them at the same time to say yes on the settlement agreement, yes on the SDP. If they say yes to the settlement agreement, the SDPs get issued the next day, they sign the document and 15 days later we write you a check. CHAIRMAN STRAIN: Who's going to do the settlement agreement? MR. KLATZKOW: I am. CHAIRMAN STRAIN: Okay. Who's going to do the PUD? MR. KLATZKOW: I am. CHAIRMAN STRAIN: When can you have those done by? MR. KLATZKOW: The more time you give me, the better. I can have it done in a week, but it just means setting aside everything else. So the more time, the better. CHAIRMAN STRAIN: No, Jeff, we're trying to work to your schedule. Is the 14th too -- MR. KLATZKOW: I can have it done by February 14th. CHAIRMAN STRAIN: No, you'd have to have it done in advance of that because you'd have to go over it first with the applicant and then with us. MR. KLATZKOW: Yeah, I can have it -- you can be looking at this February 14th with plenty of time to review it. But, you know, if you give me more time, that would be fine, too. MR. SCHMITT: We would hand it out at the meeting February Page 147 January 11,2008 7th. We would want it as least by then. CHAIRMAN STRAIN: In order to accommodate a little more time, is the 25th out? How does the 25th sound? COMMISSIONER CARON: It's fine for me. COMMISSIONER SCHIFFER: I don't know for sure. COMMISSIONER MURRAY: I think that's better for everybody. CHAIRMAN STRAIN: The 25th? COMMISSIONER MURRAY: Yeah, I really do. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I'm okay with the 14th and the 25th. CHAIRMAN STRAIN: Oh, you're out, Richard? MR. YOV ANOVICH: Jerry's out of the country. I've got to be done at 1 :00. That's all I've got to say is I don't have the all-day option on the 25th. COMMISSIONER MURRAY: I will say, if they want to do it on the 14th, fine. I was trying to accommodate everybody here so no errors or the minimum number of errors would be present. MR. KLATZKOW: IfI do my job right, this is going to be a half hour discussion, tops. I mean, you don't need a full day. If you need a full day for this, then Richard and I really messed up. MR. YOV ANOVICH: Hey, hey, hey there. CHAIRMAN STRAIN: Let's take a decision. What does this board want then, 25th or the 14th? COMMISSIONER SCHIFFER: 14th. CHAIRMAN STRAIN: 14th for Mr. Schiffer. Ms. Caron? COMMISSIONER CARON: Let's leave it on the 14th. If Jeff runs into a problem, he can e-mail us and, you know -- CHAIRMAN STRAIN: If you tell us by the 7th there's a problem, we can just decide then on the 14th. Page 148 January 11,2008 Richard, on the 7th if we see we have a problem in deadlines, we'll reconsider the date to a later date after that. MR. YOV ANOVICH: That will be great. And I'll be in contact with Jeff, so I'm hopefully going to know before you know that we have a deadline problem. CHAIRMAN STRAIN: Okay. Well, that ends-- COMMISSIONER MURRAY: I had a question. CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: The bald eagle management plan is not going to be subject to any other changes, right? Everything is going to be as it is? MR. YOV ANOVICH: Other than you took out a couple of sentences. COMMISSIONER MURRAY: I know, pertinent to what we qualified today. MR. YOV ANOVICH: Right. COMMISSIONER MURRAY: So you don't have any -- no expectation of change. MR. SCHMITT: The bald eagle management plan is part of the PUD document and will be included as part of the PUD. It's an attachment to the PUD. COMMISSIONER MURRAY: But when we get our documents, they're going to be everything we talked about and qualified, it's going to be done. And that wouldn't change beyond that; we have no expectation of that. MR. YOV ANOVICH: No, I hope not. We only took two sentences out and added two circles, so hopefully we can do that one pretty easily. COMMISSIONER MURRAY: And you'll have "P" in the water and there'll be no problem. MR. YOV ANOVICH: We'll have "P" in a portion of the water. CHAIRMAN STRAIN: You guys, let Mr. Murray speak. You Page 149 January 11,2008 guys are trying to be recorded here and it's a little hard. Okay, ifthere's no more discussion on the Cocohatchee issue, let's just end it and we'll continue this meeting -- MR. YOV ANOVICH: You sure? CHAIRMAN STRAIN: We've got more discussions on other issues. You're more than welcome to hang around. MR. YOV ANOVICH: No, thank you. CHAIRMAN STRAIN: Okay, the next issue on our agenda for today is -- MR. SCHMITT: A break. CHAIRMAN STRAIN: Yeah, that's a good idea. Let's break till 2:30, we'll come back and finish up. Thank you. (A break was taken.) Item #9 OLD BUSINESS CHAIRMAN STRAIN: Now we have a live mic. Okay. Welcome back for the continuing saga of the January 12th (sic) planning commission meeting. We finished up with our previous Cocohatchee issue for now, continued it until February 14th. We're now on old business. Last meeting we discussed a new policy for the planning commission to have basically a consent agenda. Mr. Klatzkow was kind enough to create a policy for the planning commission to review that I believe he's going to put on the overhead or something. A bunch of legal whereases, and the second page gets into the actual meat of it. MS. ISTENES: You're not really going to be able to see the whole thing at once and read it because there's some legal -- CHAIRMAN STRAIN: Yeah, when I formatted this I kept Page 150 January 11,2008 CHAIRMAN STRAIN: Yeah, when I formatted this I kept printing it and the bottom was cut off. And I had to reformat it. Finally I got the smarts and said, ah, it's a different size. I don't know if the commissioners have read this. I believe you all got it in an e-mail. I thought it seemed to be pretty good with the intent of what we were trying to do in it. I think the highlight of the whole thing is it's a consent agenda item to basically make sure that the directions we gave and the changes we asked for, the stipulations, were accurately taken down and -- would be transmitted. It's not an agenda item where we would take a motion for action. It's not a debate. It's one where we've already decided on something and we're just having a final check to make sure everything that we decided on got accurately portrayed. So what that would mean is we would not want to be -- we could not be getting into debating issues of substance at these agenda items. We basically have to make sure it's consistent with what we had said and let it go on. Otherwise we run into troubles of re-advertising and that kind of stuff. Mr. Klatzkow? MR. KLATZKOW: Yeah, the idea is this. Some of us here were at a meeting last night in Pebblebrooke and we don't ever want to be in a meeting like that again, ever, ever, ever. Because I can't tell you how sorry I feel for the residents over there. And the idea is this: We don't want to inadvertently miss any of your directions as far as CCPC recommendations on any development order again. And what will happen is I've tasked Marjorie Student, and I know Joe's tasked some of his people, that we're going to go through the tape of this meeting after every meeting, and we're going to go through and we're going to make those changes, and then they're going to come back to you on a consent agenda. And if we do our job right, you'll never pull them off because it will be accurate to the T on it. Page 151 January 11,2008 second, you missed something, we intended something else. At that point in time you can pull it from the consent agenda and the discussion would be limited to whether or not the changes were made in accordance with your recommendations and directions to us. If it gets to the point where you think we're in error on that, it will come back again to reflect your particular recommendations. Matters outside of that will not be discussed. If you think the staff report, for example, should have been modified, that's not part of the discussion. If somebody has another idea, well, maybe this should have been included, that won't be part of the discussion. It's whether or not my staff and Joe's staff working together got this right for you. So that when the BCC then gets it, they can be guaranteed that when they're looking at CCPC recommendations, they have it. CHAIRMAN STRAIN: Excellent. Mr. Kolflat? COMMISSIONER KOLFLAT: This differs from the consent agenda that the commission uses. MR. KLATZKOW: Yes, the commission uses more of an action item type of agenda. This is simply a format so that you can look at it, and if there's no comment it just gets taken and proven forward to the BCC. COMMISSIONER KOLFLAT: For verification? MR. KLATZKOW: That's correct, sir. CHAIRMAN STRAIN: Ms. Caron, then Mr. Vigliotti. COMMISSIONER CARON: I was just going to comment that the BCC will know that as of the date that we sign off on this, it was the best information that we had at the time and our recommendations are based on that. Oftentimes they get different information than we do. CHAIRMAN STRAIN: This will help a lot. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Jeff, on this consent agenda, Page 152 January 11,2008 will that be each and every item that we went through at a previous point in time? MR. KLATZKOW: Only the ones where you've directed changes to be made. COMMISSIONER VIGLIOTTI: So any time we make any stipulations to the original, then it will come back through this. MR. KLATZKOW: Yes. CHAIRMAN STRAIN: I think at our meeting, if we see we have a lot of difficult stipulations, we need to ask for it to come back. It won't automatically come back. There will be times when we come through this we may hear something and not have a stipulation or we may hear something and have one that's really simple, change the word may to shall. We don't need that to come back. So I think it's going to be those times that we exercise that discretion at the end of the vote of every single one of these. And if we decide not to exercise it, then it doesn't come back. Is that fair? MR. KLATZKOW: These are your rules, if this is what you want to do. CHAIRMAN STRAIN: Anybody else have any comments? COMMISSIONER SCHIFFER: On this? CHAIRMAN STRAIN: Yes. COMMISSIONER SCHIFFER: Yeah, just a couple. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: Page 1, you refer to the comprehensive plan. Do you think that might be better the Growth Management Plan? MR. KLATZKOW: They're one and the same. COMMISSIONER SCHIFFER: They are, but we normally, I think -- don't we refer to it as the GMP? Anyway, you're happy with that, that's fine. We reference consent agenda. Is that like a standard term? Does Page 153 January 11,2008 everybody know what that means? I mean, I know what it means. But in terms of -- in here there's no discussion on how to pull an item, stuff like that. So would that be something you would know by the generic understanding of what a consent -- MR. KLATZKOW: Anyone of the commissioners at the beginning could say I've looked at this, there's an error here, I think there's an error, I'd like to pull it. And then it would go onto your regular agenda for discussion. COMMISSIONER SCHIFFER: That comes from the quote, consent agenda, we would all know that that's what that's for. MR. KLATZKOW: Yeah. COMMISSIONER SCHIFFER: And then the timing of it. How long do you think it will take to get into the consent? Will it be at the next meeting? MR. KLATZKOW: You'll have it at your very next meeting. That's why I wanted to bring it forward today so you could have the consent agenda as part of your next meeting. COMMISSIONER SCHIFFER: And then the only other conclusion. I know that we can make our own rules. Are there any other prior rules done by prior -- MR. KLATZKOW: I have looked, and I couldn't find any. I was actually very surprised. I had assumed when I started working with you guys that you had rules and you didn't. CHAIRMAN STRAIN: Well, there was a rule put forth by the county commission, and I have a copy of it, it's an old one, that set the way the planning commission and the Board of County Commissioners will proceed with hearings. I think it's 167, but I don't know what year. I'll pdfyou a copy of that. MR. KLATZKOW: That would be nice, thank you. COMMISSIONER CARON: It would be good if we all got that. CHAIRMAN STRAIN: I actually included it with everybody Page 154 January 11,2008 that was here a few years ago, and I passed around a book of what the planning commission could and couldn't do. It was in that book. But I'll be glad to send it to Jeff and let him disperse it to everybody. Are there any other comments on this particular policy? (No response.) CHAIRMAN STRAIN: Okay, I guess we would label this Resolution 08-01 ? MR. KLATZKOW: Yes. CHAIRMAN STRAIN: There's a recommendation to approve Resolution 08-01 as presented by the county attorney today. COMMISSIONER VIGLIOTTI: So moved. CHAIRMAN STRAIN: Motion made by Commissioner Vigliotti. Is there a second? COMMISSIONER CARON: Second. COMMISSIONER ADELSTEIN: So seconded. CHAIRMAN STRAIN: Seconded by Commissioner Caron. Is there any discussion? (No response.) CHAIRMAN STRAIN: All those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER MURRAY: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 7-0. I've got to remember how many people are here, Cherie'. Okay, we have a speaker coming for the sign one, so we'll put Page 155 January 11,2008 that off till last. Let's review the first two -- oh, I'm sorry, I've got to adjourn this meeting and open up another one, don't I? That's right. So with that in mind, I'd like a motion to adjourn our regular scheduled meeting for the Cocohatchee. COMMISSIONER CARON: So moved. CHAIRMAN STRAIN: Motion made, seconded by Tor. All in favor? COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER KOLFLAT: Aye. COMMISSIONER ADELSTEIN: Aye. COMMISSIONER MURRAY: Aye. CHAIRMAN STRAIN: Aye. Motion carries. ***** Page 156 January 11,2008 There being no further business for the good of the County, the meeting was adjourned by order of the Chair; the CCPC Land Development Code Cycle 2 meeting began immediately following adjournment. COLLIER COUNTY PLANNING COMMISSION MARK P. STRAIN, Chairman These minutes approved by the Board on as presented or as corrected TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC. BY CHERIE' NOTTINGHAM. Page 157 ORIGINAL DOCUMENTS CHECKLIST & ROUTING SLIP TO ACCOMPANY ALL ORIGINAL DOCUMENTS SENT TO THE BOARD OF COUNTY COMMISSIONERS OFFICE FOR SIGNATURE Print on pink paper. Attach to original document. Original documents should be hand delivered to the Board Office. The completed routing slip and original documents are to be forwarded to the Board Office only after the Board has taken action on the item.) ROUTING SLIP Complete routing lines #1 through #4 as appropriate for additional signatures, dates, and/or infomlalion needed. If the document is already complete with the exccotion of the Chainnan's 5i.mature, draw a line through coutin!>" lines #1 throuP'h #4, comnlcte the checklist, and forward to Sue Filson line #5\ Route to Addressee(s) Office Initials Date (List in routin!>" order) 1. 2. 3. 4. 5 6. Minutes and Records Clerk of Court's Office JAK 1/14/08 PRIMARY CONTACT INI<'ORMATION (The primary contact is the holder of the original document pending Bee approval. Nonnally the plimary contact is the person who created/prepared the executive summary. Primary contact infonnation is needed in the event one of the addressees above, including Sue Filson, need 10 contact stuff for additional or missing infonnation. All original documents needing the Bee Chairman's signature arc to be delivered to the BCe office only after the BeC has acted to approve the item) Name of Primary Staff Jeffrey A. Klatzkow Phone Number 774-8492 Contact Agenda Date Item was Approved by CCPC on 1/11/08 Agenda Item Number Approved bv the BGG Type of Document Resolution Number of Original One Attached Documents Attached 1. INSTRUCTIONS & CHECKLIST Initial the Yes column or mark "N/A" in the Not Applicable column, whichever is a ro riate. Original document has been signed/initialed for legal sulTicicncy. (All documents to be signed by the Chairman, with the exception of most letters, must be reviewed and signed by the Office of the County Attorney. This includes signature pages from ordinances, resolutions, etc. signed by the County Attorney's Office and signature pages from contracts, agreements, etc. that have been fully executed by all parties except the BCC Chairman and Clerk to the Board and ossibl State Officials.) All handwritten strike-through and revisions have been initialed by the County Attorney's Office and all other arties excc t the BCC Chairman and the Clerk to the Board The Chairman's signature line date has been entered as the date of BCC approval of the document or the final ne otiated contract date whichever is a licable. "Sign here" tabs are placed on the appropriate pages indicating where the Chairman's si nature and initials are re uircd. In most cases (some contracts are an exception), the original document and this routing slip should be provided to Sue Filson in the BCC oftice within 24 hours of BCC approval. Some documents are time sensitive and require forwarding to Tallahassee within a certain time frame or the BCC's actions are nullified. Be aware of our deadlines! The document was approved by tbe CCPC on 1/11/08 and all changes made during the meetiug have been incnrporated in the attached document. The County Attorney's Office has reviewed the chaD es, if a licable. Yes (Initial) N/A(Not A licable) JAK 2. 3. 4. 5. 6. JAK Already Si ned N/A N/A JAK I: Formsl County Fomls/ BCC Formsl Original Documents Routing Slip WWS Original 9.03.04, Revised 1.26.05, Revised 2.24.05 08.CCP-OOOO2l2 CCPC RESOLUTION NO. OS-ilL A RESOLUTION OF THE COLLIER COUNTY PLANNING COMMISSION OF COLLfER COUNTY, FLORIDA, ESTABLISHING A "CONSENT AGENDA" AS A REGULAR COMPONENT OF THE PLANNING COMMISSION MEETING AGENDA. WHEREAS, pursuant to and in accordance with Chapter 67-1246, Laws of Florida (1967) and Sections 125.01 and 163.3174, Florida Statutes, the Board of County Commissioners of Collier County, Florida, established the Collier County Planning Commission (CCPC) as its local planning agency for the unincorporated area of Collier County; and WHEREAS, as part of its functions, powers and duties, the CCPC reviews and makes recommendations to the Board of County Commissioners on specific, proposed development orders and considers whether they conform to the principles and requirements of the comprehensive plan as well as other review criteria set forth in the Collier County Land Development Code (LDC); and WHEREAS, the CCPC has determined that it is necessary to conduct an additional review of certain proposed development orders to ensure that all revisions and stipulations recommended by the CCPC, and made part of its motion al its public hearings, are accurately articulated within these documents; and WHEREAS, the CCPC pursuant to the authority granted to it by Section 5 of Chapter 67- 1246, Laws of Florida, as codified in Subsection 250-33(c)(I) of the Collier County Code of Laws and Ordinances, hereby establishes a "Consent Agenda" as a regular component of its meeting agenda to facilitate its review of the proposed development orders and other development documents which have been revised pursuant to prior CCPC action. NOW, THEREFORE, BE IT RESOLVED BY THE COLLIER COUNTY PLANNING COMMISSION OF COLLIER COUNTY, FLORIDA, that: 1. The CCPC hereby adopts, as part of its regular meeting agenda, a "Consent Agenda" to be administered in conjunction with the normal preparation and distribution of the CCPC regular meeting agenda. 2. Items placed on the "Consent Agenda" shall be limited to the proposed development documents previously considered and acted upon by the CCPC, and upon which the CCPC based its recommendation on specific revisions and stipulations not contained in the original submittal to the CCPC. 3. Review of items appearing under the "Consent Agenda" shall be limited to ensuring that all revisions and stipulations recommended by the CCPC, and made part of its motion at its public hearings, are accurately articulated within these documents. Accordingly, the items appearing under the "Consent Agenda" portion of the CCPC agenda shall not be construed as items requiring a public hearing or an advertised public hearing and as such shall be exempt from the requirements governing same. 4. All CCPC comments regarding items reviewed as part of the "Consent Agenda" shall be included with the back-up material provided to the Board of County Commissioners or the Board of Zoning Appeals, as the case may be, prior to their consideration of the development proposal. BE IT FURTHER RESOLVED that this Resolution takes effect upon its being adopted by a majority votc by the Collier County Planning Commissioners. THIS RESOLUTION ADOPTED after motion, second and majority vote. Done this l t+- day of "S P\N"'~2008. COLLIER COUNTY PLANNING COMMISSION COLLIER COUNTY, FLORIDA By: Mark . Strain, Chairman ATTEST: 1 s ph K. Schmi t mmunity Development and Environmental Services Administrator Approved as to form and ga I ncy: Jeffr A. K tzkow Chie Assist nt County Attorney