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CCPC Minutes 07/17/2008 R July 17,2008 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida July 17,2008 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 REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Mark Strain Lindy Adelstein (Absent) Donna Reed-Caron Tor Kolflat (Absent) Paul Midney Bob Murray Brad Schiffer Robert Vigliotti David J. Wolfley (Absent) ALSO PRESENT: Jeffrey Klatzkow, County Attorney Joseph Schmitt, CDES Administrator Ray Bellows, Zoning & Land Development Review Page 1 AGENDA Revised COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., THURSDAY, JULY 17,2008, 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. 1. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY SECRETARY 3. ADDENDA TO THE AGENDA 4. PLANNING COMMISSION ABSENCES 5. APPROVAL OF MINUTES - JUNE 5, 2008, REGULAR MEETING 6. BCC REPORT- RECAPS - JUNE 24, 2008, REGULAR MEETING 7. CHAIRMAN'S REPORT 8. CONSENT AGENDA ITEMS A. Petition: BD-2008-AR-12802, Vanderbilt Surf Colony Recreational and Maintenance Association, Inc" represented by Miles Scofield of Turrell, Hall and Associates, Inc, requesting a IS-foot boat dock extension over the maximum 20-foot protrusion limit as provided in section 5.03.06 of the LDC to allow a multi-slip dock facility reaching a maximum of 35 feet into the waterway. Applicant is proposing to remove two existing finger docks and build 12 new docks with a total of 16 slips. Subject property is located in Section 20, Township 48 and Range 25, Collier County, Florida. (Coordinator: Ashley Caserta) B. Petition: RZ-2008-AR-13209, Michael Corder represented by Michael Fernandez of Planning Development Inc., is requesting a rezone from the Estates (E) Zoning District to the Commercial Interrnediate (C-3) Zoning District for a project to be known as the .'Healthcare Medical Center." The subject property, consisting of 6.25 acres, is located in Golden Gate Estates on the southwest corner of the intersection of Wilson and Golden Gate Boulevards, in Section 04, Township 49 South, Range 27 East, Collier County, Florida. (Coordinator: John-David Moss) 1 C. Petition: PUDA-2008-AR-1286 I, Kevin Ratterree of G.L. Homes of Naples II Corporation, represented by Robert Duane, AICP of Hole Montes, Inc., requesting a PUD Amendment to the Terafina PUD to change the side yard setbacks for zero lot line dwellings as established in Section 6.5, Development Standards, Table I, of the approved PUD Ordinance, from zero or 12 feet to zero or ten feet. The:': 636.8-acre subject property is located in the Terafina PUD, Section 16, Township 48, Range 26, Collier County, Florida. (Coordinator: John-David Moss) 9. ADVERTISED PUBLIC HEARINGS A. Petition: VA-2007-AR-11494, Darryl J. Damico, represented by Tim Hancock, AICP, of Davidson Engineering, Inc, is requesting an after-the-fact Variance from the requirements of Subsection 4.02.02.C of the Land Development Code (LDC) which requires a maximum 20 acre excavation area to allow a 36.6 I acre earth mine increasing the area of excavation by 8.10 acres from 60.8 percent to 78.1 percent on a 46.87 acre site within the Estates "E" Zoning District for a project to known as "Captiva Pond". The subject property is located in Golden Gate Estates (Unit #45), between 54th Avenue NE and 56th Avenue NE, in Section 4, Township 48 South, Range 28 East, of Collier County, Florida. (Coordinator: Melissa Zone) CONTINUED TO 8/21/08 B. Petition: CU-2007-AR-11493, Darryl J. Damico, represented by Tim Hancock, AICP, of Davidson Engineering, lnc, is requesting a Conditional Use for the expansion of an existing earth mining operation within an Estates "E" Zoning District, increasing the excavation area by +/- 8.] 0 acres from 28.51 acres to 36.61 acres to allow commercial hauling offill off site, for a project known as "Captiva Pond". The subject property, consisting of 46.87 acres, is located in Golden Gate Estates (Unit #45), between 54th Avenue N.E. and 56th Avenue N.E., in Section 4, Township 48 South, Range 28 East, of Collier County, Florida. (Coordinator: Melissa Zone) CONTINUED TO 8/21/08 C. Petition: PUDZ-2006-AR-10875, Q. Grady Minor, representing KRG 951 and 41, LLC, is requesting a PUD Rezone from the Agricultural (A), Commercial Convenience (C-2), General Commercial (C-4) and Artesa Pointe PUD zoning districts, to the Commercial Planned Unit Development (CPUD) zoning district for the Tamiami Crossing CPUD, which would allow a maximum of 235,000 square feet of commercial uses. The :,:25.45 acre property is located in Section 3, Township 51 South, Range 26 East, Collier County, Florida. (Coordinator: John-David Moss) READVERTlSED FROM 4117/08 10. OLD BUSINESS A. To have the Collier County Planning Commission (CCPC) review and consider two proposed ordinances as follows: I. To amend Ordinance Number 90-17, known as the "Collier County Noise Ordinance", codified as Chapter 54, Article IV, of the Code of Laws and Ordinances of Collier County, Florida, which Ordinance subsequently was amended by Ordinance Numbers: 93-77, 00-68, 04-15, and 07-61 that is intended to provide sound levels that are not detrimental to life, health, enjoyment of his or her property; and 2. A proposed Ordinance providing for a permit to authorize the operation of outdoor serving areas; specifying outdoor serving area permit application requirements; providing for suspension of such permit; providing for operating regulations; providing for conflict and severability; providing for inclusion in the Code of Laws and Ordinances; providing for repeal of three specified ordinances; and providing an effective date. (Coordinator: Catherine Fabacher and Lisa A. Schott, President and Principal Acoustical Consultant) TO BEGIN NO LATER THAN II :00 A.M. ] I. NEW BUSINESS A. Presentation of the Annual Update and Inventory Report (AUIR) Seasonal Population Study, as Directed by the Collier County Board of County Commissioners (BCC) at the June 10, 2008, hearing, for components of the AUIR on Public Facilities as provided for in Chapter 6.02.02 of the Collier County Land Development Code. ]2. PUBLIC COMMENT ITEM ]3. DISCUSSION OF ADDENDA 14. ADJOURN 7/17/08 cepe Agenda/Ray Bellows/mk/sp 2 July 17,2008 CHAIRMAN STRAIN: Good morning, everyone. Wow, we're a little loud. Testing. Something is wrong. Are we still there? Okay, not everybody -- well, if! go this far away, you can't hear me. Can you hear me okay? MR. BELLOWS: I can. CHAIRMAN STRAIN: Okay. Good morning. Welcome to the wide awakening message I just said. Welcome to the planning commission meeting for Thursday, July 17th, 2008. If you'll all please rise for pledge of allegiance. (Pledge of Allegiance was recited in unison.) Item #2 ROLL CALL BY THE SECRETARY CHAIRMAN STRAIN: Okay, will the secretary please do the roll call. COMMISSIONER CARON: Mr. Kolflat is absent. Mr. Schiffer? COMMISSIONER SCHIFFER: I'm here. COMMISSIONER CARON: Mr. Midney? COMMISSIONER MIDNEY: Here. COMMISSIONER CARON: Ms. Caron is here. Mr. Strain? CHAIRMAN STRAIN: Here. COMMISSIONER CARON: Mr. Adelstein is absent. Mr. Murray? COMMISSIONER MURRAY: Here. COMMISSIONER CARON: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Here. COMMISSIONER CARON: And Mr. Wolfley is absent. CHAIRMAN STRAIN: Okay. I had gotten messages from Mr. Page 2 July 17,2008 Wolfley and Mr. Adelstein and Mr. Kolflat that they are missing for various reasons of personal appointments and things, so they will not be able to -- that's why they couldn't make it here today. Item #3 ADDENDA TO THE AGENDA Next thing on the agenda is our addenda to the agenda. We have some changes. Under the consent items, Item 8(A) will be continued probably until the next meeting. Under number 9, 9(A) is continued. 9(A) is the Darryl Damico, the Captiva Pond project. That has been continued to August 21 st, '08. Under 9(B), the petition for Darryl Damico again. This one is -- well, it's two for Captiva Pond. One is a variance and one is a conditional use. Both of those are continued to August 21 st. So if you're here for that one today, it will not be heard. And that takes us through one other item, and that's our old business, the noise ordinance. It's kind of like a piece of Scotch tape, you just can't get rid of it. It sticks to your fingers. And we have it in front of us again today. There's an expert somewhere in the room or to be somewhere in the room involving noise to help us through that particular issue. And I understand that -- I believe it's a she, she has a plane flight to get to Orlando for another presentation today. And because of that, we need to provide a time certain no later than to start that item. And so we'll do that at 11:00. So wherever we are in the process today, if we haven't completed our regular agenda items, we'll move to that one at 11 :00. Although I certainly think we can get through everything before that time. And that gets us through the addenda to the agenda. Page 3 July 17,2008 Item #4 PLANNING COMMISSION ABSENCES Planning Commission Absences. Our next meeting, if I'm not mistaken, is the 30th, I believe -- COMMISSIONER SCHIFFER: 21. COMMISSIONER VIGLIOTTI: I have 21st. CHAIRMAN STRAIN: No, the 21st is the floodplain management one. That was canceled last meeting. That's going to be put off until August or September; I don't have a date yet. MR. SCHMITT: September 8th. CHAIRMAN STRAIN: September 8th? Okay. So that one on the 21 st, we do not have a meeting on the 21 st. Our next meeting will be Wednesday, July 30th at 8:30 a.m. in these chambers, and it will be on the LDC amendments, the first section of those. Now, when staff passed out those amendments last time, they passed them out and suggested that we're going to run through Pages 1 through 90. In looking at Pages 1 through 90, or the last time when we were talking we suggested, why don't we go beyond that so that we don't limit ourselves if we have a full day. So we went to Page 120. So please, everyone, be prepared to discuss Pages 1 through 120 on the 30th of this month. I have read all that already and I can tell you there's a lot of stuff in there that's just one page stuff and hopefully we'll move through that agenda rapidly. So anyway, that's our schedule. Item #5 Page 4 July 17,2008 APPROVAL OF MINUTES The next one is Approval of Minutes. Has anybody got any comments on the June 5th, 2008 regular meeting minutes that were all electronically supplied? (No response.) CHAIRMAN STRAIN: Hearing none, is there a motion to approve? Mr. Vigliotti? COMMISSIONER VIGLIOTTI: So moved. CHAIRMAN STRAIN: Seconded by? COMMISSIONER MIDNEY: (Indicating.) CHAIRMAN STRAIN: Seconded by Mr. Murray-- COMMISSIONER VIGLIOTTI: Mr. Midney. CHAIRMAN STRAIN: Mr. Midney, thank you. Looking for a vote here. Second's not too hard on the minutes. Okay, all those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. MR. MURRAY: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. Item #6 BCC REPORT - RECAPS - JUNE 24, 2008, REGULAR MEETING BCC Report. Ray? Page 5 July 17,2008 MR. BELLOWS: The board did not meet during the intervening time from the last planning commission. CHAIRMAN STRAIN: Lucky them. Chairman's report. We have a -- for one person it's an unfortunate event today. For the rest of us, it's a moment to glee over someone else's misfortune. Mr. Schmitt is one year older today. I think it's his 70th birthday, is it? So happy birthday, Mr. Schmitt. MR. SCHMITT: That was supposed to be a secret. CHAIRMAN STRAIN: Yeah, it is. It doesn't go outside of this room. MR. SCHMITT: 29, but a few anniversaries of29. CHAIRMAN STRAIN: Well, you maintain your age very well, sir. Congratulations on another year. COMMISSIONER VIGLIOTTI: Joe, it's only a number. MR. SCHMITT: I know, it's only a number. CHAIRMAN STRAIN: I have one issue that I got a request of staff. I don't understand it. In reading the upcoming LDC amendments -- and this isn't a specific question about the amendments, it's trying to get an answer -- on Page 91 we have a section from 91 to 102 in big bold print up on top and over-sized capital letters it says, new version pending, please do not review at this time. LDC amendment request from transportation planning. Okay, why did you give it to us? If we're not supposed to review it, why do we have it and where is what we're supposed to have? Since we're going to be hearing this on the first day, we kind of need it. MR. SCHMITT: Well, the version you have has been reviewed by other committees, that's why it's still in there. But staff has strong objections to some of the areas. And I'm going to let Susan answer. Because there are objections, and transportation's consultant is rewriting. So go ahead. MS. ISTENES: Good morning. Susan Istenes, Zoning Director. Unfortunately your book was produced and that was in there. Page 6 July 17, 2008 And so what I did was I asked Catherine just to make a notation not to review so we didn't have to rip all the books apart and waste a lot of resources and time. So we didn't want to waste your time because, as Joe pointed out, transportation's consultant and our Mark White had gotten together after your books were produced and have revised it. So Mark sent -- I'm sorry, Bob Mulhere sent his revisions to us last week and we're just waiting to finish our review with Mark White before we send it to you. And we should have that to you next week. CHAIRMAN STRAIN: Okay, because we are going to -- that one would probably come up on the 30th. And with the mythical way that transportation writes its documents, we need extra time with their stuff. So if anything, that one should have came to us early so we can probably decipher it before we get to our meeting. MS. ISTENES: I think -- well, my -- Bob and Mark have done a pretty darn good job, I think. We've worked really hard in several meetings with them, and I think we've whittled down the issues. I think you'll find it's relatively easy to understand. But I'll leave that to your discretion. And we'll get it to you as soon as possible. CHAIRMAN STRAIN: Well, honestly, if transportation thinks they've written it in a manner that's relatively easy for us to understand, then I'm more concerned about what they're hiding behind the words, but we'll dig -- MS. ISTENES: No, I meant Mark White, our attorney. CHAIRMAN STRAIN: Okay. Well, I had to take a chance on Nick, since he's here. MR. CASALANGUIDA: Do you want my first born child or -- COMMISSIONER VIGLIOTTI: Mark? CHAIRMAN STRAIN: Appreciate your time. Y .? es, sIr. COMMISSIONER VIGLIOTTI: Do we need to swear in anybody? CHAIRMAN STRAIN: Not yet. We're just going to our early Page 7 July 17,2008 discussions. We'll get to that in a minute, certainly. Item #8 CONSENT AGENDA ITEMS (#9B AND #8C) COMMISSIONER STRAIN: Okay. Well, that takes us through the chairman's report, which will probably be the most interesting thing we have to discuss today. And then we'll get into the consent agenda items. We have two of them that are on the consent agenda, 8(B) that's left, which is Michael Corder's Health Medical Center in Golden Gate Estates, and the Ratterree G.L. Homes Corporation, Terafina PUD. Does anybody have any concerns with the way those items have been refined and provided to us? Is there a need to pull them? Ifnot, is there a motion to approve the remaining -- those two items on the consent agenda? COMMISSIONER VIGLIOTTI: So moved. CHAIRMAN STRAIN: Mr. Vigliotti made the motion to approve. COMMISSIONER MURRAY: Second. CHAIRMAN STRAIN: Mr. Murray seconded. Discussion? (No response.) CHAIRMAN STRAIN: Just want you to know, I've been through it myself, I didn't find any problems with the two of those, and so -- Ms. Caron? COMMISSIONER CARON: Excuse me, we did get an e-mail from the county attorney's office on this concerning Exhibit C, stipulation J.2.B of Exhibit C relating to transportation. CHAIRMAN STRAIN: Yes. COMMISSIONER CARON: And the distribution of the CAT. Page 8 July 17, 2008 CHAIRMAN STRAIN: Right. COMMISSIONER CARON: All right? They're looking for clarification from this body before we go further. CHAIRMAN STRAIN: Okay. Well, let's get-- COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Yes, sir, go ahead. COMMISSIONER SCHIFFER: What they're looking for is a method to distribute. I thought it would be up onto the owner. He buys them. Ifhe wants to throw them away, that's pathetic but he could. But essentially he expressed that he would probably hand them out to staff and stuff. COMMISSIONER CARON: We just needed to clarify that for the county attorney's office, if we wanted to be specific or if we were just going to allow them to do it. COMMISSIONER SCHIFFER: I don't think we ever wanted to be specific. CHAIRMAN STRAIN: We never want to be specific. We're very vague. COMMISSIONER SCHIFFER: We do discuss that, don't we? CHAIRMAN STRAIN: Okay. Well, let's go back to where we are. In the discussion the question has been raised how is the distribution of the CAT transportation passes supposed to be handled, distributed by the applicant or in some other manner? Personally I don't think it's the appropriate issue to be -- I made that clear at the last meeting, so how they're distributed is not an issue. I'm concerned about because they shouldn't be there in the first place, but that's a moot point. So as far as distribution, what is the census, consensus of this board? Mr. Murray? COMMISSIONER MURRAY: My recollection was we Page 9 July 17,2008 concluded that Mr. Fernandez was going to acquire them and they would take care of what they had to do. That was their responsibility. That's the way I understood it. CHAIRMAN STRAIN: Okay, so the applicant would acquire the passes and that they would be distributed as the -- COMMISSIONER MURRAY: Right. CHAIRMAN STRAIN: -- applicant wants -- sees the need to distribute those. Is that where most people -- everybody's coming from? COMMISSIONER SCHIFFER: No need to address it. CHAIRMAN STRAIN: Okay. COMMISSIONER CARON: All right, the second issue was with Exhibit C under the list of permitted uses, No. 24. This is on the veterinary services. The original document said excluding outside kenneling. Because we changed the SIC code reference to just veterinary offices, they've taken out the phrase, excluding outside kenneling. And I think that they just want confirmation that that's what we intended. CHAIRMAN STRAIN: Well, when I got that I went back and I read it and it does say, No. 24, veterinary offices, excluding outside kenneling. And so I think that we should leave it as it was written. And I had responded directly to that, so that's why I didn't -- but the way it's -- in my book it now says, excluding outside kenneling, so -- COMMISSIONER CARON: So we would like it back in, because it says that phrase has been left within the -- oh, I'm sorry, within the document. CHAIRMAN STRAIN: Right, so we need to leave it in. Right, I think the question was should it -- COMMISSIONER CARON: I think so. CHAIRMAN STRAIN: -- come out. COMMISSIONER CARON : Yeah. COMMISSIONER VIGLIOTTI: No. Page 10 July 17,2008 CHAIRMAN STRAIN: And we want to leave it in. COMMISSIONER CARON: In. COMMISSIONER VIGLIOTTI: Yes, we do. CHAIRMAN STRAIN: Right. COMMISSIONER CARON: Good. CHAIRMAN STRAIN: Okay. So the only clarification is to the CA T tickets. We've made it very clear, we don't need this to come back again. Mr. Vigliotti, on your -- COMMISSIONER VIGLIOTTI: Yes. CHAIRMAN STRAIN: -- motion for the consent agenda, do you -- MR. KLATZKOW: One second. There was also an issue on 8(C). I assume it was taken care of, but I just want to make sure. You have an -- going to 8(e), if you go to Page 2 of 4, it's side yard setbacks. And then you look at your notes, note three. The question is, where did you intend that asterisk to be? Because there is no note three. CHAIRMAN STRAIN: Well, I think that -- and I had discussions with Marjorie on that. My suggestion was we didn't want to change the PUD in a minimal amount as necessary to accommodate this change. I suggest that we leave note three just as note three with the clarification that the 12 feet changes to the 10, as has been presented in version A, and go with version A. And I'm sorry I didn't make that clarification when we talked about it here today. And there is no need -- I didn't see a need to make a notation up above if one wasn't necessary. It's just a further note for clarification. MR. KLATZKOW: And I assumed it was taken care of if you all didn't raise it. CHAIRMAN STRAIN: Yeah. So is everybody okay with version A for Terafina? COMMISSIONER MURRAY: Yes. Page 11 July 17,2008 COMMISSIONER VIGLIOTTI: No problem. CHAIRMAN STRAIN: Okay. With those comments and stipulations, Mr. Vigliotti and the second accept the comments as made note -- as we've noted? COMMISSIONER VIGLIOTTI: Yes, I do. COMMISSIONER MURRAY: Yes. CHAIRMAN STRAIN: Okay. All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. MR. MURRAY: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. That gets us past the consent items. As I said before, 8(A) will come back to us. Item #9C PETITION: PUDZ-2006-AR-I0875, TAMIAMI CROSSING CPUD Okay, advertised public hearings. The first and only petition on our regular hearings today is Petition PUDZ-2006-AR-I0875, and it's the KRG 951/41 LLC, known as the Tamiami Crossings CPUD. This one is coming back to us for rediscussion at the request of the applicant. Are there -- all those wishing to testify on behalf of this application, please rise to be sworn in by the court reporter. (Speakers were duly sworn.) Page 12 July 17, 2008 CHAIRMAN STRAIN: Are there any disclosures on the part of the planning commission? (No response.) CHAIRMAN STRAIN: I've had numerous discussions and meetings with Mr. Y ovanovich, the applicant, and then Mr. Arnold and I have talked several times on the phone. So -- and all the questions I had basically will be brought up for today's meeting. Ms. Caron? COMMISSIONER CARON: I spoke to Mr. Y ovanovich on the phone as well. CHAIRMAN STRAIN: Okay, anybody else? (No response.) CHAIRMAN STRAIN: That's it? Richard, it's all yours. MR. YOV ANOVICH: Thank you. Good morning. For the record, Rich Y ovanovich on behalf of the applicant. With me today is Eric Strickland with Kite Development who can answer any questions on behalf of the property owner; Wayne Arnold and Mike Herrera from Grady Minor Associates to answer any engineering or planning questions related to the petition. Just real briefly, this is the roughly 25-acre parcel that fronts both U.S. 41 and Collier Boulevard as you're heading towards Marco Island. It was a request for 235 square feet of retail. When we were in front of the planning commission last time I believe it was a 5-4 vote in favor. 5-3. I know it was close. And I think someone might have had second thoughts afterwards. So -- and the issue that came up, I guess from the planning commission's concerns, those who didn't support it, as I understand it was the size of the building and how close it was to U.S. 41. After the planning commission meeting, I was contacted by Commissioner Fiala. Some of her -- or some residents in the area had contacted her, also raising the same issue. So with that information we Page 13 July 17,2008 went back and looked at how can we address the concerns of the planning commissioners who raised that issue, as well as residents who raised that issue. And we came up with a new plan. And that new plan basically reduced the size of the building for a 200-foot depth from U.S. 41 from the original request of 50 feet to 29 feet zoned, 32 feet actual, until you get to the one tower. And then the one tower the zoned height would be 35 feet with an actual height of 38 feet. So we showed that plan to Commissioner Fiala. She thought it was a good plan, and we thought it would be a good idea to come back to the planning commission, present the plan to the planning commission, get feedback from the planning commission as to does that address the concerns that were raised by the minority that didn't find the original plan acceptable. And that plan was designed with the intent that we would have a big box user, which it had to be at least 170,000 square feet. Ifwe didn't obtain that big box user, we would go with an alternative plan that would move the buildings away from U.S. 41. Because as some of -- as the planning commissioners pointed out, they thought there could be another design that would allow the big box to be further away. Well, we couldn't achieve the big box further away, so that's why we were able to lower the building height and address that one alternative for the big box. But if we don't get the big box, we can achieve a plan that would move -- I used the term strip building, with Commissioner Caron when I met with her. But essentially the bigger building would be able to be moved further away near the preserve area, as some people have suggested that we might be able to do with the big box. So what we have before you today is a revised PUD document that addresses lower heights if we do the big box close to 41, and an alternative plan if we don't do the big box that the buildings will be relocated altogether. And both of those documents are attached to the Page 14 July 17,2008 PUD as C-l and C-2 of the master plan. And Ray is ahead of me. This is the C-2 alternative plan that moves the building that was -- the big box building is located here on the site. It's moved back here further away from the U.S. 41 near the Artesa Point preserve area. And this is our preserve area. That didn't really change under either alternative. What this results in is, you know, out-parcel here, we always had this Tract B here on the original plan, and then two out parcels here, along with the smaller building that we -- has always been the building, and that the deviation for the landscaping was to allow the parking here to serve this smaller building. So that's the revised plan. It moves the building away. Briefly -- do you have the other plan handy? CHAIRMAN STRAIN: While you're switching plans, if anybody from the IT department is watching this meeting, we have two monitors up here that are out, and they're black. If someone could just come in and maybe push the right buttons, the typical buttons don't turn them on. Thank you, Richard. MR. YOV ANOVICH: And this was the original plan with the big box near 41, the Tract B that's on the other plan that I just showed you and the Tract A small building. So those are the revisions that we've made. And we've made those changes in the text to address the height issues. And you can find those changes in Exhibit F. And in the height you will see, as I described it, you'll find that in 2-G of Exhibit F. Those are the heights I just discussed with you regarding the 29 feet and the 32 feet. All that is in section G. And that applies to the C-l original master plan. And then we referenced the C-2 master plan, if we don't obtain the minimum 170 (sic) square foot tenant. There are -- we've met with John-David Moss after we received the staff report. And after we further went through the plan with him, I Page 15 July 17,2008 think he no longer objects to the deviations applying to both plans, but John-David can address that. We think the deviations are necessary for both plans. And I think staff now supports that. After -- in reviewing the document that went to you all, I noticed a couple of corrections that needed to be made. And if we go to Page 4 of 12, which is Exhibit B, it's the table, if you look under the setback minimum yards from Tamiami Trail, now that the building can't exceed a 29-foot zoned height or a 35-foot zoned height for the tower, we no longer need to have a one-foot setback for every two feet of zoned height. It should just be a flat minimum setback of25 feet. Commissioner Caron pointed that out as we were discussing the project. And then under the minimum distance between structures, it should read 10 feet or one-half the sum of the building heights. It read 10 feet or the sum of the building heights. So that -- COMMISSIONER CARON: Well, I was happy not to correct that one. MR. YOV ANOVICH: I know. And then on Exhibit F, I'll put these up, because -- there are a couple of changes to a couple of paragraphs. If you look at Page 9 of 12 in Exhibit F, it's in paragraph A-2. In paragraph C there was an extra word, the word "by" needs to be deleted. We have an enhanced buffer plan that's Exhibit G. There was-- so the word "by" really didn't make any sense. It will be enhanced pursuant to Exhibit G. And then on D, we don't have an exhibit for the architecture. We describe it as I believe cracker style old Florida. So we don't -- so we have to -- that's the architectural style that the building will be, but we don't have an exhibit to reference in that, so the reference to an Exhibit H really needs to be struck. CHAIRMAN STRAIN: Wouldn't you mean all of 2-D then? Page 16 July 17,2008 MR. YOV ANOVICH: No, we still need to say that conceptual C-l plan shall adhere to applicable architectural commitments in Exhibit F, same exhibit, but it's item E-l. And that's where we describe the type of architecture. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: While we're planning scrivener, Rich, on Page 8 of 12 in C, you're referencing some -- I think some of these might be wrong. For example, you're looking for a reference to the landscape, but you're sending us the 2-G-2, and I think you mean 2-E-2, don't you? G is architecture, E is landscape. MR. YOV ANOVICH: Okay, I'll trust you. COMMISSIONER SCHIFFER: Well, don't. Check it. MR. YOV ANOVICH: That is right? Okay. COMMISSIONER SCHIFFER: And then the second thing is in that lower one you referenced 2-D-2, and I think that should be 2-E-2. CHAIRMAN STRAIN: Before you go too far, would you tell me exactly where you are? COMMISSIONER SCHIFFER: I'm on Page 8. COMMISSIONER MURRAY: 8 of -- MR. YOV ANOVICH: Item C. COMMISSIONER SCHIFFER: I'm on Item C. And then down at the bottom there's some -- MR. YOV ANOVICH: The last two lines in Item C. COMMISSIONER SCHIFFER: -- references that are -- CHAIRMAN STRAIN: Because those same corresponding, you've got some similar changes in the following page, too. COMMISSIONER CARON: So the first one should be E-2. COMMISSIONER SCHIFFER: No, 2-E-2. COMMISSIONER CARON: 2-E-2. COMMISSIONER SCHIFFER: And the second one should be 2-E-2. Page 17 July 17,2008 COMMISSIONER VIGLIOTTI: 2-E-2 also? COMMISSIONER SCHIFFER: I'm sorry, 2-E-1. Second one should be 2-E-l. MR. YOV ANOVICH: 2-E-l the second one should be? COMMISSIONER SCHIFFER: Right. CHAIRMAN STRAIN: No, the pedestrian walkway, isn't that discussed in 2-E-2? COMMISSIONER SCHIFFER: Let's see. MR. YOV ANOVICH: Yeah, it is, 2-E-2. CHAIRMAN STRAIN: So the D changes to E but the 2 stays 2. MR. YOV ANOVICH: Right. COMMISSIONER SCHIFFER: One second. Then the other one might be wrong. Hold on. The first one you're describing the landscape buffer. So maybe -- I'm sorry, the first one should be 2-E-l and the second one should be 2-E-2. MR. YOV ANOVICH: That looks right. CHAIRMAN STRAIN: Okay, now, on -- is that the corrections needed? Well, let's just take all of them. Any other corrections on Page 8 from this committee? COMMISSIONER SCHIFFER: Corrections? I have questions but no more corrections. CHAIRMAN STRAIN: Well, Rich, are you -- where are you with your presentation? MR. YOV ANOVICH: I have a couple of questions to answer for Commissioner Caron, and then I'll be done, unless you want to -- CHAIRMAN STRAIN: Well, let's answer Commissioner Caron's first and then we'll hear Mr. Schiffer. MR. YOV ANOVICH: Okay. One of the questions Commissioner Caron asked me is are there any water management structures on the preserves. And I believe we do not have any water management structures in the preserves. Page 18 July 17,2008 COMMISSIONER CARON: Then let's strike it from-- MR. YOV ANOVICH: From a use in the preserves, okay. COMMISSIONER CARON: Thank you. MR. YOV ANOVICH: The next question had to do with since we were moving the buildings further away from 41 and nearer to the Artesa Point PUD, or whatever we called that PUD -- is that right -- the question was would that mean now we somehow need a wall. And I got some distances for Commissioner Caron. The nearest corner of the building, and I'll put an exhibit up that -- it doesn't have the measurements on, but just to -- for ease of reference, because you wouldn't be able to read it on this exhibit. This corner of the building -- CHAIRMAN STRAIN: You need a mic. MR. YOV ANOVICH: Sorry. This corner of the building to the nearest residential structure is 756 feet. And you have this preserve and this preserve before you get there. So there's a distance of756 feet from this corner to the nearest residential building. The parking that is right here, that nearest corner is 584 feet from the residential. So I think that there would -- there would not be a need for any type of a wall treatment. It's really -- it abuts commercial anyway. And just by way of comparison, the nearest point of the Wal-Mart building to residential is 151 feet. So I think we more than take care of our residential neighbors through those -- the distance of the building, as well as the preserves to assure compatibility and not creating real problems for them by doing the alternative master plan. And then the final -- CHAIRMAN STRAIN: Richard, there might be a follow-up on that issue. COMMISSIONER CARON: Let me just follow up here. The second part of the reason that I asked that question was in relation to permitted uses here. And where we were talking about Page 19 July 17,2008 again our favorite subject, and that's drinking establishments and any potential for outdoor seating, which can happen now on this revised plan on that corner. And did we want to make that stipulation the stipulation we've been making, which is, you know, putting some restrictions on outdoor seating in that area. It's not in the original, because it wasn't a factor in the original. But now all it says are drinking establishments and places are permitted in conjunction with a restaurant. But it doesn't give us any restrictions as far as outdoor seating is concerned. And I just question creating additional problems. In any ordinance we've been even considering we've been talking about 2,500 feet away from residential. So -- CHAIRMAN STRAIN: Well, the noise ordinance that we look at today, if it passes, would address various forms of outside noise and amplified music. And I understand your argument and I think it's well stated. The only difference here is the distance from the residential. And Pebblebrook as example, the residential is just a stone's throw from the back of the entertainment area. I'm not sure that far away, especially with a Wal-Mart which has a lot of activity in between, warrants much of a concern for -- COMMISSIONER CARON: Again, I'm looking to the future and trying to avoid problems that are probably not going to be necessary anyway. I don't know that that restriction's going to be any big deal for the applicant, so -- CHAIRMAN STRAIN: I would hope that we would resolve that through the noise ordinance in this case, because of -- COMMISSIONER CARON: I would hope so two, but -- CHAIRMAN STRAIN: -- the distance. We can try, at least. MR. YOV ANOVICH: You know, if it will make it easier and clarifY things for us in the future, we don't have an objection to no outdoor seating on the big building, but we would like to have the outdoor seating on the out parcels. Page 20 July 17,2008 COMMISSIONER CARON: No problem. COMMISSIONER VIGLIOTTI: That's fine. MR. YOV ANOVICH: Because I don't know what the noise-- haven't read the noise ordinance, so we would like to specifically be allowed to have that for the -- did I get that? MR. ARNOLD: Can I correct you? MR. YOV ANOVICH: Yeah, you can always correct me. MR. ARNOLD: For the record, I'm Wayne Arnold. I just wanted to clarity, I think we want the outdoor seating. I think we were talking -- I was thinking the clarification, the outdoor amplified music and TV s on that larger building. The out parcels, I don't know that it would be an issue. COMMISSIONER CARON: It wouldn't be an issue. MR. ARNOLD: But that was what I was thinking on that. I apologize for that. MR. YOV ANOVICH: Okay, I misunderstood Mr. Arnold. CHAIRMAN STRAIN: The noise ordinance -- COMMISSIONER CARON: But he's right. CHAIRMAN STRAIN: -- for the benefit of this committee that we're coming up specifically addresses that kind of an issue. COMMISSIONER CARON: Right. CHAIRMAN STRAIN: And I think if we do a good job on that, we might solve the problem community-wide. So that would be my suggestion. As a follow-up to Ms. Caron's -- Brad, I'm going to get to you, but I want to finish on Donna's issues that she raised. Your removal of the one foot of setback for every two feet of zoned building height but not less than 25 feet in regards to your principal uses table? MR. YOV ANOVICH: Yes. CHAIRMAN STRAIN: You're going to leave it just 25 feet? MR. YOV ANOVICH: Yeah. Page 21 July 17,2008 CHAIRMAN STRAIN: Is that what your suggestion was? MR. YOV ANOVICH: Yeah. COMMISSIONER CARON: Not less than 25 feet. CHAIRMAN STRAIN: Right. But I'm wondering why we would want to take out that additional language. Number one, it doesn't hurt to leave it in. Number two, the -- I'm concerned that the out-parcels that you have left wouldn't have a height restriction on them as the current because it says in the bottom, for height restrictions on the larger format retailer building. So what if you don't do that larger format retailer building along 41 but you have your two out-parcels? Can you go to 60 feet on those? And if you can, I'd rather leave language like this in here to assure that there's going to be a more adequate setback. COMMISSIONER CARON: I don't think you can. MR. YOV ANOVICH: Well, actually, I believe under the maximum height it's 35 feet and 40 feet is actual. CHAIRMAN STRAIN: Right. MR. YOV ANOVICH: And then the three asterisks refer to a further limitation on height for the bigger box building. So that -- instead of the zoned height of35 feet, it becomes 29 feet. CHAIRMAN STRAIN: Yeah, you're right. Okay, then I -- that works then. So it would be not less than 25 feet. COMMISSIONER CARON: Right. CHAIRMAN STRAIN: Okay, Ms. Caron, while you've got the floor, any other questions you have at this point before we go to Brad? COMMISSIONER CARON: I think that answered it. MR. YOV ANOVICH: The last question you had was the water management system, and it's conceptual on both master plans. COMMISSIONER CARON: Right. MR. YOV ANOVICH: We're going to go through the Water Page 22 July 17,2008 Management District permitting. But I think the major question was really related -- COMMISSIONER CARON: Structure. MR. YOV ANOVICH: -- to the structure. CHAIRMAN STRAIN: Well, if you take out the outfalls in the preserve area, where are your outfalls going to be on this project? MR. HERRERA: For the record, Michael Herrera, Q. Grady Minor . The discharge location under both concepts was to U. S. 41. The on-site preserve was only attenuating storm water above water quality under both scenarios. CHAIRMAN STRAIN: Okay, so your overflow outfall on this project will be spilling into the swale along U.S. 41? MR. HERRERA: Correct. CHAIRMAN STRAIN: I know the DOT intends to expand 41 in that area, and I know they're looking for reservoirs in that area to store water in. Would you be contributing to their need for a larger reservoir? Because if you are, are you sure that's the reasonable possibility that you have before you eliminate that use completely? MR. HERRERA: Through South Florida Water Management permitting, any road widening has to be typically compensated by the adjacent parcel in this case scenario. So I think that additional widening and -- would already be compensated through the ERP permitting process. CHAIRMAN STRAIN: Okay. Do you -- in your design of water management, you adhere to South Florida Water Management District rules, is that -- that's a fair statement, isn't it? MR. HERRERA: Correct. CHAIRMAN STRAIN: Because there was a provision added as a stipulation to your previous review. The provision read, the provision of stormwater management discharge at 4.9 feet NGVD or Page 23 July 17,2008 above. Now, I don't know the science behind that determination. I'm assuming it was what you presented earlier at another meeting. But I would hate to see that 4.9 need to be adjusted by the agency and you be stuck with a PUD change because the agency adjusted it and you didn't have any control over it. I was wondering if there was anything wrong with adding language at the end of that stipulation that would say, or as approved by South Florida Water Management District. That way it clarifies where we've got to be. Do you guys have any problem with that? Does anybody on this board? COMMISSIONER SCHIFFER: No. MR. YOV ANOVICH: No, I think that's a good suggestion. CHAIRMAN STRAIN: Okay. It just makes it cleaner for the future. MR. YOV ANOVICH: Right. COMMISSIONER VIGLIOTTI: It's a good catch. CHAIRMAN STRAIN: Okay. Then we'll go on to Brad. Do you have any questions, Brad? COMMISSIONER SCHIFFER: Just one thing, Rich. In Exhibit E, which is Page 8, in A. First of all, you want to be able to provide a zero setback between buildings. But if the buildings have zero setback, they're one building, thus they're not between buildings. So is that necessary? Or what did you really need that for? MR. ARNOLD: Again, Wayne Arnold. I'll explain that. The reason we had this is that there's the potential that there could be more than one ownership of one -- what otherwise appears to be one building, that the dirt could physically be sold underneath those buildings to two different entities. And if you plat it as two different lots, the county staff would require us to have landscape buffer between those two tracts. So with this language we could plat one tract, put one building Page 24 July 17,2008 on it and then have two ownerships. That's why that was written. And the parking could also be a part of that. This was really -- when we were talking about the large box user, that that potential existed where you could have a portion of the site that's owned by somebody else but the parking lot would appear to be the same parking lot. There wouldn't be clear -- a clear distinction between who owns what on the site. COMMISSIONER SCHIFFER: So the -- I mean, do you really need to then say between buildings? What you want is a zero foot setback. And Wayne, where is this really occurring? In here it says that it's to the lot immediately north of Tract A. Tract A is that lower portion; is that right? MR. ARNOLD: That's correct. COMMISSIONER SCHIFFER: So we're only talking about one lot. MR. ARNOLD: Correct. COMMISSIONER SCHIFFER: Once you subdivide it wouldn't that lose definition for the other lot? I mean, that tract is just that one small square piece above that, correct? MR. ARNOLD: Right. And we limited that deviation to only that portion. Because they would probably share the parking with the balance of the site when it's developed. But there could be a separate ownership of that building and tract, and we didn't want to have to put in separate landscape buffers between our parking for our use and the rest of the parking that's already likely going to be there. I know it's kind of cumbersome, but I think when we wrote the deviation the first time, you may remember we ended up limiting it so that it only applied to this very small portion of the site, as opposed to the entirety of the site. COMMISSIONER SCHIFFER: Okay. I mean, I'll trust you on that. Page 25 July 17,2008 But the other thing too is there's no deviations with the architectural standards with this, correct? I mean, even though your sketch shows a very long, straight facade, that would not occur in reality . MR. YOV ANOVICH: Right, right. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Any other questions of the applicant at this time? (No response.) CHAIRMAN STRAIN: Richard, I have one more. You have some renderings done of the building. I know that those have not been proved through review yet for staff. But I would just like you to put those on the screen so that they're shown as a conceptual intent of where you're planning to go. This is the drawing that I believe you have shown everyone to get to where we are today at today's meeting. MR. YOV ANOVICH: And I think the issue with staff is -- is it cracker enough to satisfy the terminology? But it does show the breaking up of the mass of the building and -- CHAIRMAN STRAIN: That was my intent for having you show this. I think it's important to realize that the facade along 41 now will not be a monolithic wall -- MR. YOV ANOVICH: Right. CHAIRMAN STRAIN: -- 50 or whatever feet high it was going to be. MR. YOV ANOVICH: Right. CHAIRMAN STRAIN: It's actually going to be a very contrasting broken up feature, and that does change a lot of the issues we had. COMMISSIONER SCHIFFER: Clarification. Where is this facade? MR. YOV ANOVICH: That's the facade on 41 as you're driving Page 26 July 17,2008 by 41. COMMISSIONER SCHIFFER: On the second plan or the first plan? MR. YOV ANOVICH: The plan that's closest. The first -- the original plan with the lower height building. CHAIRMAN STRAIN: And they're not saying this meets architectural criteria at this point, Brad, but it's just a conceptual intent that they're -- MR. YOV ANOVICH: It was an example to show the lower scale building and how the building in fact would not be one long building, it would be broken up. COMMISSIONER SCHIFFER: Yeah. I mean, my only comment, there wasn't a whole lot of tilt-up, flat wall, cracker buildings, but you can find one somewhere, I guess. CHAIRMAN STRAIN: Okay, thank you. And with that, we will ask for staff report. And then I will need to ask transportation an issue of verification of the consortium agreement before this is over. MR. MOSS: Good morning, Commissioners. John-David Moss, Department of Zoning and Land Development Review. I would just like to say that the project is consistent with both the mixed use activity center subdistrict and the Henderson Creek mixed use subdistrict in which it's located. The project is also consistent with all the applicable provisions of the LDC, subject to the stipulations included in the PUD ordinance. The applicant is also requesting four deviations, which staff supports. I'd just like to make one clarification. If you'd look at Exhibit E of the ordinance under deviations. Under parking distribution, for the first option that the applicant was proposing, they were obviously requesting to put all of the parking on one side of the building, rather than distributing it on both sides. And in order to mitigate that impact, staff had recommended that they be allowed to provide an enhanced Page 27 July 17,2008 buffer in that location. And the applicant has committed to also providing that same buffer among Tamiami Trail. And that has not been included anywhere in the PUD document, and so we do need to incorporate that. Probably the most logical place would be in E under planning. If you'd turn the page on Exhibit F, E-l. We should probably just say in the first line where it says enhanced landscape buffers along the Collier Boulevard frontage, just include Tamiami Trail frontage as well. CHAIRMAN STRAIN: So it would be along the Collier Boulevard and Tamiami Trail -- MR. MOSS: Frontages, uh-uh. And then we'll clean up the language in C, under Exhibit E to make it clear that this 50 percent -- that this 50 percent deviation no longer applies, that they will provide the buffers regardless. And then also in the first deviation, number one, the applicant does want this deviation to apply to both conceptual master plans, not just the first one as they had initially proposed. And staff doesn't have a problem with that, since they're going to be making up that landscaping and these enhanced buffers. CHAIRMAN STRAIN: Okay, I'm going to read back before this is over today all the little changes we've made to this document one at a time before we vote. So -- and then maybe you can make sure that we're all in agreement with that, anything that -- MR. MOSS: Okay. CHAIRMAN STRAIN: -- I've missed we -- MR. MOSS: Perfect. CHAIRMAN STRAIN: Okay? Because this isn't going to go through consent, because this is coming up I believe Tuesday. MR. MOSS: I don't know if it is after all. I know there was an advertising problem, so it may not be coming up Tuesday. I'm not sure. Page 28 July 17,2008 Do you know? CHAIRMAN STRAIN: Richard? I thought I saw it on the agenda. MR. YOV ANOVICH: Yeah, but the fact that I'm standing here doesn't mean it was our advertising problem. There was a glitch, as I understand it. The newspaper didn't run the ad in time. So it looks like we will not be making the July 22nd BCC agenda. Hopefully we will be on the September 9th BCC agenda, since it was neither staffs fault nor our fault that the ad wasn't run. Staff got it to them in time and for whatever reason didn't run it for 15 days, they only ran it for 10 or nme. So doesn't look like Tuesday's going to happen, despite everybody's efforts to try to make that happen. And we appreciate everybody working so hard to try to keep us on the schedule we originally had. CHAIRMAN STRAIN: So it can go on the consent -- we'll look at it, Ray, under the consent agenda then. That would be safer. MR. YOV ANOVICH: Yeah, we can bring it back. CHAIRMAN STRAIN: Okay. John-David, did you have anything else you wanted to say? MR. MOSS: No, just that staff is recommending approval. And I'll be happy to answer any questions you might have. CHAIRMAN STRAIN: Any questions of staff at this point? (No response.) CHAIRMAN STRAIN: Nick? It's always good to see you, Nick. MR. CASALANGUIDA: Good morning, Mr. Chairman and Commissioners. For the record, Nick Casalanguida with transportation. How can I take my beating today? CHAIRMAN STRAIN: No, no. There was two issues last time, and they've resolved basically one of them by the refinement of their plan, at least from my perspective. I was one of the dissenting votes. Page 29 July 17,2008 But I had another issue, and that was the consortium agreement. And I wanted assurances that somehow that consortium agreement was to be -- you guys were at a level of comfort with it that something would be done at the time it was needed in regards to this facility. MR. CASALANGUIDA: The consortium agreement covers the consistency section of this PUD. So it's consistent with the GMP by the fact they have an agreement in place. Weare working on modifying that agreement, side issue. Concurrency kicks in. If they breach the agreement, they never get a certificate of occupancy. They don't get to build until improvements are done. So that's the assurance that you have. This project wouldn't go forward without some sort of improvement moving forward as well, too. CHAIRMAN STRAIN: Okay. I'm very familiar with that intersection, and I know that most of the problem with the intersection is not the functioning today, it's the vested rights that already are allocated to the intersection, even though they're not built out yet. And with the market like it is, I think the build-out of that area surrounding is probably a lot slower than anticipated. So based on that I feel that intersection will be viable much more so than it was the last time we were here discussing this project. MR. CASALANGUIDA: That's true. CHAIRMAN STRAIN: Okay. Anybody have any other questions of transportation? (No response.) CHAIRMAN STRAIN: Thank you, sir. MR. CASALANGUIDA: You're welcome. CHAIRMAN STRAIN: Ray, do we have any guest -- yeah, guest speakers. Do we have any public speakers? MR. BELLOWS: One speaker. Doug Lewis. MR. SCHMITT: No, that's -- CHAIRMAN STRAIN: No, that's on the noise ordinance, I'm Page 30 July 17,2008 sure. MR. BELLOWS: Sorry. No speakers. CHAIRMAN STRAIN: I don't think he'd want to contribute to this. Okay, with that, do you want to rebut anything staff said so negatively about your project, Richard? MR. YOV ANOVICH: I think I'll take a pass on the rebuttal. CHAIRMAN STRAIN: Okay. MR. YOV ANOVICH: But can I stand here while you go through the -- make sure we get all the changes right? CHAIRMAN STRAIN: You can stand anywhere you'd like, sir. Let me walk through what I hear the changes to be so that the motion maker can either incorporate them or not or change them or the board can discuss to change them. On Page 2 of 4 with the stipulations for recommendation of approval, there was one suggested change for number six providing the stormwater management discharge, and the verbiage will be added, or as approved by South Florida Water Management District. On Page 3 of 4, the staff recommendation, number one will be struck. The staff recommends approval, but it had a stipulation. That stipulation, we've heard testimony, is no longer necessary, but there will be changes to the PUD text document that will probably augment that. In the actual PUD itself, on Page 3 of 12, first change that I have noted is under preserve tracts, Roman numeral III A-2 is to be struck. It's no longer needed. On Page 4 of 12 under the Exhibit B for the Tamiami Crossings development standards table, both of the principal use references from Tamiami and Collier Boulevard for the setback will be -- all the verbiage will be deleted, leaving only the words not less than 25 feet in both instances. Further on down where it says, minimum distance between Page 31 July 17,2008 structures, under principal structures it will be 10 feet or -- and we insert the words, half the sum of the building heights. Under Page 8 of 12, item -- Exhibit E, deviations, Item C will be cleaned up to remove the 50 percent language. And towards the end of that where it references Exhibit F, item 2-G-2, that will be changed to 2-E-l. The last line where it references subsection 2-D-2 will be changed to 2-E-2. On Page 9 of 12, Exhibit F listed developer commitments. Under 2-A-C, the word by will be struck and the Exhibit G will be Exhibit E instead of G. Under 2-A-2-D, everything -- well, first of all, we'll change Exhibit E to Exhibit G in that reference and then a period. Everything after that gets dropped. On Page 10, Item E, planning one, the first line, enhanced landscape buffer along Collier Boulevard, and we'll insert the words, and Tamiami Trail frontage. MR. YOV ANOVICH: Mr. Strain? CHAIRMAN STRAIN: And that's what I have. Richard? MR. YOV ANOVICH: On the references to 2-C and D, the changes to the exhibits, I think you said the reference to Exhibit E, G should become Exhibit E. CHAIRMAN STRAIN: Yes. MR. YOV ANOVICH: But I think the landscape -- enhanced landscape buffer is Exhibit G. CHAIRMAN STRAIN: Okay. I thought I heard in discussion it was E and I just made that note, but -- MR. YOV ANOVICH: Yeah, it was the earlier changes. But no, both of those references stay the same. CHAIRMAN STRAIN: So 2-A -- I mean -- Exhibit F, item 2-A-2-C remains the same with Exhibit G. MR. YOV ANOVICH: Right. Page 32 July 17,2008 CHAIRMAN STRAIN: Item 2-A-2-D would remain the same with Exhibit G as well, but we put a period after the word where it says now Exhibit E, we change that to Exhibit G? MR. YOV ANOVICH: No, it says -- it should read, commitments in Exhibit F, Item E-l. CHAIRMAN STRAIN: So that's a complete change. COMMISSIONER MURRAY: Yeah. CHAIRMAN STRAIN: Commitments in Exhibit F, item-- MR. YOV ANOVICH: E-l. That's the reference to the architectural commitments in -- that's a specific section. If you just want to leave Exhibit F and -- CHAIRMAN STRAIN: Well, wait a minute now. Exhibit F, Item E-l is the enhanced landscape buffering. We're looking at architectural commitments on that one. MR. YOV ANOVICH: You're right, that should be G. The E should be G. CHAIRMAN STRAIN: So we're back to what I read originally, right? MR. YOV ANOVICH: On that one, yes, Item G-l. CHAIRMAN STRAIN: You know how scratched up this paper looks? So Item 2-A-2-D reads, conceptual plan C-l shall adhere to the applicable architectural commitments in Exhibit G, period. MR. MOSS: Exhibit F. I believe it's in Exhibit F, Item G. That's where the confusion is. COMMISSIONER CARON: F is environmental on this. MR. YOV ANOVICH: No, no, no. MR. MOSS: Exhibit F. CHAIRMAN STRAIN: But he's saying it's here-- COMMISSIONER CARON: Oh, Exhibit F. I'm sorry. CHAIRMAN STRAIN: Exhibit F, Item G. MR. YOV ANOVICH: Yes. Page 33 July 17,2008 CHAIRMAN STRAIN: So 2-A-2-D, conceptual plan C-l shall adhere to the applicable architectural commitments in Exhibit F, Item G, period. Okay, that's the only change to the other ones that I read. That seems to have been read clearly back into the record. Are there any things from the planning commission's viewpoint that further needs changing? COMMISSIONER VIGLIOTTI: No. CHAIRMAN STRAIN: Okay, with that we will close the public hearing and entertain a motion. Is there a motion? Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I will make a motion to approve with all the conditions and changes and stipulations we agreed on here this morning. CHAIRMAN STRAIN: The ones we just read into the record? COMMISSIONER VIGLIOTTI: Everything you've read this mornmg, yes. CHAIRMAN STRAIN: Is there a second to that motion? COMMISSIONER SCHIFFER: I would. CHAIRMAN STRAIN: Mr. Schiffer made a second. Any discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. MR. MURRAY: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. CHAIRMAN STRAIN: All opposed? (No response.) CHAIRMAN STRAIN: Motion passes 6-0. Page 34 July 17, 2008 MR. YOV ANOVICH: Thank you. CHAIRMAN STRAIN: Thank you. And we appreciate you coming back for a second shot at making this a little more unanimous decision for the planning commission. MR. YOV ANOVICH: Thank you. CHAIRMAN STRAIN: So it's a better project all over. Thank you. Savor those moments of graciousness, Richard. Okay, now we're on a couple of the most-- COMMISSIONER MURRAY: Don't we have to wait till 11 :OO? COMMISSIONER CARON: 11:00. CHAIRMAN STRAIN: No, as long as it's before 11 :00. It wasn't a time certain to start at 11 :00, it was a time certain to start before 11 :00. COMMISSIONER CARON: Okay. CHAIRMAN STRAIN: And I think Mr. Lewis-- COMMISSIONER MURRAY: You want to have a break? CHAIRMAN STRAIN: -- is he here, just to make sure? COMMISSIONER MURRAY: Mr. Chairman, could we maybe take a short break so that the gentleman back there can fix the monitor? CHAIRMAN STRAIN: Okay. Then before we do, though, let's -- Doug Lewis, if you're out there somewhere, we want to start this subject. I know you're interested. So hopefully you'll be here by the end of the break. MR. SCHMITT: He's here. CHAIRMAN STRAIN: Okay. Well, we're going to take a break for 15 minutes while they fix the monitors, and give the court reporter a break because she's probably going to need one until we get to the next subject. So let's come back here at 20 minutes of 10:00. 9:40 otherwise. (Brief recess.) Page 35 July 17,2008 CHAIRMAN STRAIN: Okay, everyone, welcome back from our early break. Cherie', we'll try to accommodate you hopefully before lunch if we still need to. Item #10A OLD BUSINESS - COLLIER COUNTY NOISE ORDINANCE Now we'll get into one of our more enlightening subjects here today, the noise ordinance. And I don't know who's making the presentation on the part of staff. MS. FLAGG: Good morning. Diane Flagg -- CHAIRMAN STRAIN: Good morning, Diane. MS. FLAGG: -- Director of Code Enforcement. How are you all this morning? CHAIRMAN STRAIN: Good. MS. FLAGG: What I'm going to do is introduce Lisa Schott, who's a consultant that the Code Enforcement Board brought on to work with this noise ordinance, and also Gary Dantini who's a code enforcement specialist who will speak to you, give you an overview of the ordinance. This is an opportunity -- we'd like to take a little bit of your time to give you a chance to review the ordinance, discuss it, see ifthere's any other considerations that need to be made before we take it -- before we advertise it and take it to the Board of County Commissioners for approval. There's also Jeff Wright, the Assistant County Attorney, if you have any legal considerations that you'd like to touch base with him on. He's also here for your questions. And with that I'll -- CHAIRMAN STRAIN: Before we get into it then, I think we Page 36 July 17,2008 might want to set possibly one of the goals for review of this -- and we have in front of us a noise ordinance, but back to the back side of that you'll see another ordinance that is called the outdoor seating ordinance, which has been back and forth to us many times before as well. I think the intent of this process today is that if we can get comfortable with the noise ordinance and feel it covers enough of the issues, we don't need to have the outdoor seating ordinance. And that may be an outcome after we move on with the rest of the meeting. Mr. Schmitt? MR. SCHMITT: Yes, and just to highlight on your approach, that's the way to go. Normally this panel or this board does not review ordinances. As you well know, that is not customary, and that is something you do not do. And just for those who are watching or just to understand, the outdoor seating permit was really evolved from LDC amendments. If you recall, it was an LDC amendment. There were two different LDC amendments that evolved into the -- then into an ordinance which you all helped us craft, based -- through the exchange during a public hearing process. That outdoor seating ordinance went to the Board of County Commissioners. The Board of County Commissioners directed staff to bring it back to the planning commission for a second review as a result of how it evolved. And staff felt that it was probably best to bring the noise ordinance, as Mr. Strain pointed out, bring the noise ordinance to you to review and compare and contrast with the outdoor seating ordinance with the hope that you could send your recommendation to the board on how to or not to deal with the outdoor seating ordinance. But I'm sure the board would appreciate any comments or changes that you may have in regards to the noise ordinance. Though Page 37 July 17,2008 again it is not customary that we bring ordinances to you. In this case, because it involves and impacts zoning activities, we thought it best that we do so. So that is kind of why you are doing this. And it's more of -- sort of evolved through this process and just for clarification. But either way, we need to take -- I need to take back to the board your position on the outdoor seating permit ordinance. We will definitely bring back any changes or recommendations regarding the noise ordinance. CHAIRMAN STRAIN: Okay. And a couple other things. I was preparing to -- I was planning with this board to go through the noise ordinance page by page like we normally do with such things. If that helps anybody in the way they want to ask questions when we get done with the presentations, that was still the intent I was planning to go forward today so that every single question could be brought forward in a logical and orderly manner. And second of all, if you recall a couple times, Mr. Doug Lewis has helped and assisted this board in reviewing the documents and the prior documents. Today we received a rather detailed e-mail, page and a half long, with some refinements that Mr. Lewis has offered. Unfortunately being handed out in a meeting today in such detail, I certainly won't be able to digest those in process today. So Mr. Lewis, at whatever point you come up here and speak today, I'm going to have to ask that you probably are going to have to get into each one of these issues and explain to us your concerns, rather than rely on the reading of these. And with that, we'll move forward. MS. FLAGG: With that, I'll introduce you to Ms. Lisa Schott, the consultant. CHAIRMAN STRAIN: Thank you. MS. SCHOTT: Good morning. CHAIRMAN STRAIN: Good morning. Page 38 July 17,2008 MS. SCHOTT: What I thought I'd do, I don't have a formal present -- I'm sorry? CHAIRMAN STRAIN: You need to identifY yourself and probably spell your last name for the record. MS. SCHOTT: Okay. My name is Lisa Schott, S-C-H-O-T-T. I'm the president and principal acoustical consultant of Quietly Making Noise, based in Orlando. CHAIRMAN STRAIN: Unique name, thank you. MS. SCHOTT: Thank you. I don't have a formal presentation. I thought I would give you an overview of the primary objectives for updating the noise ordinance. And then as you suggested I think it would be a good idea to go through it, either page by page or section by section and talk about the major changes. The primary objectives were to improve the clarity of the requirements of the noise ordinance so that any reader can understand what is required without being a technical expert in noise. There were some areas that were rather technical in the previous version of the ordinance. Another objective was to allow for enforcement of certain types of noise disturbances in residential areas without the use of a sound level meter. And there are specific types laid out. By the way, the document I'm referring to is now showing on the screen. I don't know if you have copies of that. CHAIRMAN STRAIN: We have a screen in front of us, so-- MS. SCHOTT: Okay, great. CHAIRMAN STRAIN: They hide them down below the podium so you can't see them. MS. SCHOTT: Okay. The objective number three was to clarifY exactly how sound readings must be made. That's important for commercial establishments as well as consultants who are trying to work with their clients to understand exactly what the expectations are and how the readings should be made to make sure we have an Page 39 July 17,2008 accurate assessment of whether a particular establishment is in compliance with code -- with the ordinance. The fourth objective was to address some specific noise concerns that have come up in recent past, such as emergency back-up electrical generators, off-road vehicles and outdoor dining and entertainment areas near residences. The fifth objective was to ensure ease and efficiency of enforcement. And the sixth was to ensure legal sufficiency to reduce our vulnerability to court challenges. So that was the overall intent. At this point I would suggest that these -- next part of the document you see is a summary of those major changes, and it basically goes through those items in more detail. We don't need to read that here. But if you'll flip over to my Page 3 of this document, I've delineated the changes on a section-by-section basis. Are there questions, or would you like to go ahead with -- CHAIRMAN STRAIN: Well, if you're looking for questions on the document, I've gone through as I'm sure most of my colleagues have and marked up the pages. If you're at that point, we'll just start moving through the document and if -- I guess you're going to be responding to the questions then that we have. MS. SCHOTT: Yes, to the extent that I can. If there's a policy question, we may have to have someone from code enforcement help me out. CHAIRMAN STRAIN: Okay. Well, the first page of the document starts out with the normal ordinance number and the disclaimers. Then we get into the few whereases there are. Then we start on Page 2 and 3. Let's go look at the definitions as one section, starting with Page 2 and 3. Does anybody have any questions on the definitions found on Page 40 July 17,2008 Page 2 and 3? COMMISSIONER SCHIFFER: I do, Mark. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Yes, and it's on Page 3. It's continuous noise. You describe that as noise that remains essentially constant. What is essentially constant? Because I think -- and one thing we didn't mention is we've had trouble with our noise ordinance because obviously we're here with situations, we're starting to limit outdoor seating because the noise ordinance didn't protect us. So isn't that -- wasn't that the problem, that there were short bursts of noise and we couldn't really cause a violation? So the word essentially, what does that mean in this case? MS. SCHOTT: Well, the words essentially constant level actually haven't changed from what was in there before. We've addressed that particular issue that you're referring to in another area of the ordinance. We're not trying to address it by this definition. COMMISSIONER SCHIFFER: Okay. All right, then. MS. SCHOTT: The only change that was made there is just a clarification. COMMISSIONER SCHIFFER: Is that a weakness, the word essentially? I mean, we could have struck it out at this time. MS. SCHOTT: I guess I'd have to ask a lawyer that question. CHAIRMAN STRAIN: Well, if you strike it out then we would be left with the word remains constant. So that might actually be harder to -- that might actually hurt us more than if we put the work -- provide flexibility. MS. SCHOTT: I agree. COMMISSIONER SCHIFFER: But maybe another word would be good. MS. SCHOTT: Noise is never strictly constant. Depends on the level of accuracy you're measuring. Page 41 July 17,2008 COMMISSIONER SCHIFFER: Okay, we'll move on then. CHAIRMAN STRAIN: Okay. We'll look at Pages 4 and 5 for definitions. I've got a question under noise on Page 5. I just think it's interesting, the way you've described it, it's any sound that annoys or disturbs, virtually -- or has an adverse psychological or physiological effect on humans. That means basically any noise at all could be subject to this ordinance, no matter how minor or how large, because anything that has a psychological or physiological effect is varying, depending on the human being that you're talking to. MS. SCHOTT: Again, you know, the definition -- we're not trying to address the requirements within the definitions. This is a fairly standard definition of the word noise. And I agree with you. But we've set limits, you know, sound level limits that are reasonable that would eliminate a very, very quiet sound from being considered a violation. CHAIRMAN STRAIN: Okay, just the fact that it says any noise -- means any sound that annoys or disturbs, I thought physiologically or psychologically, a lot of people would think the noise of a hummingbird's wings might be too loud. I'm not sure how detailed we can be with that. But I understand your reasoning. It is addressed further on. Mr. Murray? COMMISSIONER MURRAY: I have the same thoughts, and I related to both the intermittent noise statement as well as the noise statement below that. And I wrote, my note was wind through trees, such as leaves and so forth. That's an ambient -- I've always heard it referenced as ambient sound. But ambient noise. Do we get messed up in any way by using noise in such a fashion? I recognize it's a definition, I'm appreciative of that. But I'm just wondering whether we have a problem. I've always heard it referenced Page 42 July 17,2008 as ambient sound. Now, is that an accurate -- in your science, is noise the preferred term over sound? MS. SCHOTT: Well, we use both terms in different contexts. I think both sound and noise are defined here. COMMISSIONER MURRAY: I appreciate that. What I was trying to drive at, for instance, intermittent noise means the noise whose sound pressure levels exceeds the ambient noise level. It's almost a circular issue there. And I'm not trying to parse it, I'm just wondering. Because when you do get down to the other question that Mark raised, it does become -- I guess it's probably an unanswerable issue. I'm not trying to make an argument of something, I'm trying to understand it. MS. SCHOTT: Sure. COMMISSIONER MURRAY: And I think anybody -- you know, when this passes, whatever passes, the persons who are responsible to enforce it are going to do perhaps a lot of head scratching. And I hope that's what we're going to try to cure. So I'm going to ask questions from that premise. Also, motor scooter. I noted here on the motor vehicle, motor scooter is not on here but I noted later on motor scooters among other things are included. MS. SCHOTT: Motorized scooter is included in the motor vehicle definition on Page 5. COMMISSIONER MURRAY: I said, yes, I recognize it-- MS. SCHOTT: Oh, I thought you were saying it wasn't here -- COMMISSIONER MURRAY: -- but it says here mini vehicles are not motor vehicles. Motor vehicle means any self-propelled and -- all right, I've got it here. Never mind, I've got it. CHAIRMAN STRAIN: You know, based on the responses that you've provided so far in the definitions, it seems that the definitions set the parameters of the issue. Noise can be just about anything. But then further on in the document we get to which ones need to be Page 43 July 17,2008 regulated based on the way they're measured. MS. SCHOTT: That's correct. And what we've done here is we tried to keep the definitions the same to the extent possible as they were in the last version of the ordinance. Where we had to add new definitions because there were new terms being used, we've tried to go with -- there's an EP A model community noise ordinance and other -- I also benchmarked many other cities and county noise ordinances to come up with the definitions that were added. So we were trying to -- and to the extent possible, and you can see the words that are underlined and struck through, much of these definitions that we're talking about are from the previous version of the ordinance, with only a word or two changed here and there. CHAIRMAN STRAIN: Pages 6 and 7. Any questions on Page 6 and 7? COMMISSIONER MURRAY: Oh, yes. CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: Page 6, just for clarification under road where it references every private way or private place over which the Sheriffs Office has traffic control jurisdiction. That means private roads, I presume as well, correct? MS. SCHOTT: Yes, that's the way I read it. COMMISSIONER MURRAY: Okay, just wanted to be sure -- MS. SCHOTT: And again, that was from the previous version of the ordinance. That hasn't been changed. COMMISSIONER MURRAY: Okay. CHAIRMAN STRAIN: Any other questions on Pages 6 and 7? If not -- COMMISSIONER MURRAY: And I do. CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: Under vehicle, where the last part of that entire statement says whether moving or stationary. I was Page 44 July 17, 2008 trying to understand if something is stationary what -- how is -- I'm trying to understand the context what you meant here or what is meant. MS. SCHOTT: Well, that could be a vehicle that's running, idling, but it happens to be stationary at that point in time. CHAIRMAN STRAIN: You've got a car that's stationary -- MS. SCHOTT: You can have a noisy motorcycle or a truck that is just as noisy when it's idling. COMMISSIONER MURRAY: Just want to be clear on it. Thank you. CHAIRMAN STRAIN: Okay, we'll move out of the definitions and going on to Page 8 and Page 9. Mr. Schiffer? COMMISSIONER SCHIFFER: The question up in the -- and it is the last definition. What is an example of the usual observation of moving objects? What do you mean by that? MS. SCHOTT: We're talking about the definition of vibration perception threshold? COMMISSIONER SCHIFFER: Correct. MS. SCHOTT: And you're asking about moving objects. Let's see. Oh, that would be, for instance, items on a shelf that may be moving or vibrating due to an external noise source. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Any other questions on Pages 8 and 9? (No response.) CHAIRMAN STRAIN: Ma'am, I have one on Page 9, towards the end, the underlined section, two sentences into that. First it says, in order to file a complaint, the complainant must provide his or her name, address and phone number. And then it says, the test equipment should normally be at a distance greater than 50 feet from the sound source unless there's a valid reason for measuring in a closer distance. Would one of the valid reasons be justifiably the property line? Page 45 July 17,2008 Because in a lot of cases we measure at the property line. There's not even 50 feet between many of the disturbances that could be out there. MS. SCHOTT: Yes, in some cases that could be a valid reason. CHAIRMAN STRAIN: Well, let me take an example ofa restaurant with outdoor seating and outdoor bar that has TV's and the patrons scream and yell. And the property line to the nearest house -- in this case this isn't true, but let's say it was 35 feet. MS. SCHOTT: Right. CHAIRMAN STRAIN: Would this test have to be done at 50 feet to be valid or could it be done at 35 feet where the property line is? MS. SCHOTT: Well, as this reads it could be done at the closer 35 feet. Of course there would be some legal interpretation there as to whether that was a valid reason or not. CHAIRMAN STRAIN: Well, then how do we clarify that so we don't have that legal challenge come up for the county attorney's office and have to defend then? I mean, if someone measures at their property line, and say their house -- their house could then be closer than 50 feet, so the impact is for them serious. I mean, it's there. MS. SCHOTT: Right. To me, and I'm not a lawyer, but a valid reason might be if a property owner is actually using the property within that proximity, their house sits right on the line or they have a patio or an outdoor use that is within the 50 feet, that would be a valid reason. Because it actually is disturbing the use. If you have a residential property that say has two acres and, you know, the closest two or 300 feet aren't actively used, it's just open land, then I would think the 50 feet is a valid measurement distance. CHAIRMAN STRAIN: Where did the 50 feet come from? Is that just plucked out of the air or is there -- MS. SCHOTT: No, that was from the previous ordinance. This sentence actually was just moved. It's underlined because it was Page 46 July 17,2008 inserted in a new location, but that was moved from another spot. CHAIRMAN STRAIN: See, and it got underlined, you got stuck having to answer for it. MS. SCHOTT: Trying to answer someone else's concept. CHAIRMAN STRAIN: Wouldn't we be better off by saying that testing should normally be at a distance greater than 50 feet or at the property line? That way we're covered if someone wants to use the property line? I mean, ifthere's no reason for the 50 feet, then there's no reason that they couldn't use the property line. And if the other side, if the person causing the noise wanted to argue that they're not impacting someone's life and quality, let them make the argument instead of putting the burden of the argument on the property owner. MS. SCHOTT: Right. I think in most cases what you're saying would be very reasonable. One concern I know has been the noise from residential air conditioning units that are often within 50 feet. And so the question is how do you address that. CHAIRMAN STRAIN: In a lot of ways that's a legitimate concern, because a lot of people, when their fan motors and bearings start going out don't bother fixing their unit. MS. SCHOTT: Right. CHAIRMAN STRAIN: Or they've got an old rotary unit that doesn't have a high efficiency rating and it's just clanking away. I think they've got a valid reason to file a complaint. And maybe they should. And we've got an ordinance coming up to us on the 30th of this month that allows -- we've been always allowing those in side yards but apparently we haven't done it through ordinance. Now an ordinance is coming into play -- or an LDC amendment that allows them in the side yard. But we're not allowing walls to go around them. Page 47 July 17, 2008 So we're actually going to increase the problem, I think, of sound transmission between the buildings by eliminating what people have already put around their air conditioning units in most cases. . So I'm not sure if we want to look at the 50 feet or see the 50 feet in here. Mr. Klatzkow, you had a comment? MR. KLATZKOW: Yes. And I like your suggestion with respect to or closest to the nearest property line. But before we do that, my question to the expert is, is there a scientific basis for 50 feet, or did somebody just pick a number? MS. SCHOTT: I believe someone just picked a number. MR. SCHMITT: If you notice, Jeff, that's the strike-through portion just above there. That sentence was moved. And I just asked Gary Dantini from code enforcement, or Jeff, maybe they're aware, but that's always been in the code. MR. KLATZKOW: I understand that. What I'm getting at, is there a reason why it's 50 feet or somebody just picked a number arbitrarily? MR. SCHMITT: I can't answer that -- MR. KLATZKOW: Which is why I'm asking that-- CHAIRMAN STRAIN: And we're here to make the code better, so it's irrelevant that it's always been in the code. But if we've got an opportunity to make it better today, that's what we should be doing. MR. SCHMITT: Yeah, and I'm trying to figure out ifthere's a justification for it, so -- MR. KLATZKOW: Which is why I'm asking the expert ifshe can testify whether or not the 50 feet has a valid basis. MR. DANTINI: For the record, Gary Dantini, Code Enforcement Noise Specialist volunteer -- CHAIRMAN STRAIN: You volunteer to code enforcement or you're a volunteer noise specialist? MR. DANTINI: I'm retired. I forgot to use the word retired also Page 48 July 17,2008 in there. CHAIRMAN STRAIN: Lucky you. Congratulations. MR. DANTINI: Thank you. One of the things I think where the 50 feet came from is that you have to have a balance of -- as far as fairness, not only with the complainant but also with the violator. The zero lot lines that are established in a lot of the many, many, many areas, communities, you would have -- to give you an example, when they build the buildings and they put within 10, 15 and even 20 feet from each other as far as their air conditioning units and pool pumps and things like that, they had to come up with a reason -- not a reason but a solution to the problem or -- you've got to be fair to the person that has the pool pump because also -- or the air conditioning unit, because the neighbor also has the same thing and his neighbor has to listen to it. So the 50 feet came in I believe with that aspect in mind as far as fairness to both the complainant and also the proposed violation, the person that's supposed to be doing the violation. So I think that's where that fairness came in for the 50 feet. CHAIRMAN STRAIN: Ms. Caron, then I'm going to follow up with Mr. Klatzkow as well. COMMISSIONER CARON: Yeah, I just wanted to follow up on Mr. Strain's example of the air conditioning units that mayor may not be taken care of. I live in a community where my neighbor's air conditioning and pool units are probably no more than 10 feet away from me. Most people want to take care of their property. But if you had a neighbor who didn't want to take care of their air conditioning unit for some reason -- I can't imagine why they'd want the extra expense but -- of not taking care of it. But if they did, wouldn't it be wise to add this property line language in here? MR. DANTINI: Well, through my experience of the number of Page 49 July 17,2008 readings that I've made with people at zero lot lines, the equipment that is running abnormally and not to factory specifications at 50 feet is not a problem, as far as our with our octave band or decibel readings at that time to be able to get a violation from it. So again, I really have to emphasize that equipment that's running normally, it's at 10, 15 feet at a property line is going to be a violation under our ordinances. I think a majority -- and Lisa, maybe you can help me out here. I think manufacturers have a five or 10 feet perimeter around of how many decibels that that unit can make, and a majority of them are not 55. They may be 65 or 75. So again you have to have a balance here of fairness on situations of the zero lot lines. And that's again why the 50 feet is a fair evaluation of any equipment that might be in disrepair. MR. WRIGHT: Mr. Chairman, if! may. CHAIRMAN STRAIN: Yes, sir. MR. WRIGHT: I'm Jeff Wright, Assistant County Attorney. I agree that the language, a valid reason is vague. And I think that the best approach would be to define what a valid reason would be. Seems to me that today we're focusing on property lines, so that would be one valid reason. And I think between now and the next time this is brought back to you or to the BCC, we would explore any other valid reasons that in addition to the property line issues that would fall under valid reasons. I think they should be articulated. CHAIRMAN STRAIN: Well, I think if you note that there was a concern of that issue with the planning commission it would be somehow addressed at the BCC and would highlight to them, then I'm sure that they would look at a way to maybe address it as well. So I think that would be a partial resolution. Go ahead, Mr. Murray. COMMISSIONER MURRAY: There's also, as an illustration, Page 50 July 17,2008 you might have an end unit condominium. You might have a series of air conditioning compressors or whatever those are outside. A person could be up in Philadelphia and the machine's acting erratically and creating quite a considerable noise. That 50 feet -- I mean, there's a valid reason to argue that that's an annoyance and should be a complaint issue, no? Wouldn't you agree with that? MR. DANTINI: Well, yes. Like I said, when a piece of equipment such as air conditioning or pool pump, when they have an issue as far as a mechanical issue, usually it's a bearing or the fan is going bad, a 50-feet radius around that will -- 99 and 99 tenths of the time it won't be a problem as far as recognizing that, that there is a problem, that it is a violation. And as far as we have to do the notifications of course to the property owner, no matter where they are in the United States and get it complied within a certain period of time. And their associations usually take care of that also, so -- that's the first line of defense is the associations usually, they have their own ordinances and bylaws and noise aspects of it and they usually get that taken care of first. COMMISSIONER MURRAY: Perhaps. But I do agree that valid reason is too vague for -- MR. DANTINI: Sure. COMMISSIONER MURRAY: -- this. CHAIRMAN STRAIN: Mr. Klatzkow, if we leave it with your department to further refine that language to make it more, say, legally defensible, is that an adequate response at this time? MR. KLATZKOW: Yes, sir. CHAIRMAN STRAIN: Great. Let's move on to Page 10. And then anybody got a question on Page 10? COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: Go ahead. COMMISSIONER SCHIFFER: And this is just a quick Page 51 July 17,2008 technical thing. You're introducing the C-weighted sound level. Give us a quick background on the difference between A and C and why C's important. MS. SCHOTT: Sure. And just for the record, the previous noise ordinance had an A-weighted sound level limit and individual octave band limits. I'll try not to be too technical in the explanation. Both the A and C-weighted level can be calculated from octave band limits. So when we decided to go with C-weighted, and I'll explain why we did that in a moment, we calculated the new C-weighted level limits from the old octave band limits. So the result is the same -- the requirement has not become more or less stringent in terms of sound level allowed except to the extent that there are no longer individual octave bands. Primary areas of concern for community noise are audible noise and low frequency noise. The A-weighted sound level is the best measure we have of overall audible noise in a community. And that requirement has always been in your noise ordinance. There are two ways -- now, the A-weighted level, the way it's calculated, it doesn't give much weight or credit to low frequency noise. And we all know that a lot of times the noise that bothers you is the booming base that you hear from a stereo or a car that's driving down the road and you can hear the low frequency base. So if an ordinance only limits A-weighted noise level, there's a weakness there because it's not really taking care of low frequency noise disturbances. There's two ways to regulate low frequency noise. One way is with the C-weighted sound level and the other way is with the octave band sound level limits. And you had that protection in your old ordinance through the octave band limits. The reason we changed to the C-weighted limit is that there are much less expensive sound meters available and they're more readily available on the market to measure C-weighted sound level and it Page 52 July 17,2008 takes less training to use them. So a citizen who wants to check can buy a $100 meter from Radio Shack and check both the A and C-weighted levels with it. A business owner who has an establishment that's making noise, same thing, they can easily buy equipment and use it with very little training, just basically reading the user manual, and check their compliance with A and C-weighted. Octave band measurements and enforcement and compliance are much more expensive and require more training to accurately measure that. So that was our logic. Like I said, we calculated the C-weighted -- the new C-weighted limit from your old octave band limits, so the result is an ordinance that is essentially allowing the same levels of sound to be created. Did that make sense? COMMISSIONER SCHIFFER: Yeah, that's good enough. CHAIRMAN STRAIN: We're on Page 9 still. Ms. Caron, Page 9? COMMISSIONER CARON: Yeah. It's understood that there are deficiencies in A-weighting. And I don't claim to be any kind of expert on any of this but I had tried to do some reading. And shouldn't our A-weighting be combined with AU-weighting so that-- MS. SCHOTT: AU-weighting? COMMISSIONER CARON: AU. MS. SCHOTT: AU-weighting. I'm not familiar with that term. COMMISSIONER CARON: It's (sic) essentially gives you -- helps to make accurate measurements for a low pass? It's a low pass filter for ultrasonic and near ultrasonic sound. MS. SCHOTT: Okay. And what is the concern with ultrasonic sound? COMMISSIONER CARON: Just that if we're going to define all of this and we're going to have A and C, why wouldn't we also be Page 53 July 17,2008 including the AU, which would take care of sounds that may be objectionable as well? This all comes through the International Electric Technical Commission. They have defined it and -- MS. SCHOTT: Okay. COMMISSIONER CARON: And you seem to know nothing about this. MS. SCHOTT: I don't. And I've never seen it in another noise ordinance in any municipality I've worked with. It's something I would be happy to look into. COMMISSIONER CARON: Yeah, I wish you would. CHAIRMAN STRAIN: Maybe it's not a type of noise that creates an annoyance. That may be -- MS. SCHOTT: Possibly. Or we may-- COMMISSIONER CARON: It is, that's the problem-- MS. SCHOTT: I may be getting confused over some terminology. Maybe there's some different terminology that I'm accustomed to that -- COMMISSIONER CARON: I'm happy to give you what I pulled out. MS. SCHOTT: Okay, I'll be happy to review that for you. COMMISSIONER CARON: Thank you. CHAIRMAN STRAIN: Okay, we're at Page 10, actually. Anybody have any other questions on Page 10? (No response.) CHAIRMAN STRAIN: I've got one. Up on top it's a continuation ofa questions from Page 9. Test equipment shall be placed at a height less than three feet above the ground and at least four and a half feet away from walls, barriers, obstructions and any other sound reflecting surfaces that might affect the measured sound level. Now, does that mean that might affect it as reading higher or Page 54 July 17,2008 reading lower or both? MS. SCHOTT: Could be either. These are just generally accepted measurement techniques that are delineated in most sound measurement test methods. CHAIRMAN STRAIN: In real life situations when people live in an area, let's say across the bay from a noisy establishment, sound seems to travel for some reason with much more -- I don't know what your terminology is, but I would say just for sake of argument, clarity across the water so that a person living in a home facing the bay looking at nice sunsets hears these large noises of music and whatever coming from across the water and it seems a lot closer to them. Why wouldn't we want that sense of clarity as part of the measurement? And why would we take that away when in reality that's what's affecting the people? MS. SCHOTT: Well, what this is addressing is, it's really not eliminating taking noise measurements from -- at a property that's across the water, this is preventing you from taking a measurement right next to a wall, for example, or within an enclosed box that -- perhaps like a patio or something like that that may be reflecting and increasing the noise. The person generating the noise or the establishment generating the noise would have no control over that end user's condition. And there are treatment that you could make to -- let's say for instance if you did have an enclosed patio, you could treat that patio to have some sound absorption in it to prevent those type of reflections. Ifwe allowed measurements in these areas, it would give you a possibly false high reading or, as you mentioned, it could also be low. CHAIRMAN STRAIN: If you were sitting on your dock trying to watch the sunset, not that I have one in the woods where I live, but if you were sitting on your dock and you're fortunate enough to be so and you're watching the sunset and all you got to hear was all this noise from an entertainment facility a couple of thousand feet away on Page 55 July 17,2008 the water, if you had to measure from some other part of their house, would they still get the sound that would be transmitted across the water at the level of which it's transmitted, or would they not be allowed to measure from their dock? MS. SCHOTT: As long as you could measure three feet above from the dock and four and a half feet away from any wall, you could measure on that dock. CHAIRMAN STRAIN: Okay, so the sound reflecting surfaces here wouldn't necessarily be the water? MS. SCHOTT: Oh, I see your question. Well, you would have to measure at least four and a half feet away from that sound reflecting surface, the way this is written. So you wouldn't be able to measure right at the water surface. But I wouldn't think that would be a concern. Normally, the ear if you're sitting on your dock you're going to be at least five feet above the water. CHAIRMAN STRAIN: Okay, that's what I was trying to get at. Thank you. Page 11 continues over on Table 1. I had a question on Table 1 but I'll defer to my colleagues if they have questions. Mr. Murray? COMMISSIONER MURRAY: Yeah, I'm looking further down where you have introduced correction for ambient sound level and that underscored paragraph. What does it say about the equipment? Is it allowing for variation in equipment in its ability to register sound or qualify sound? MS. SCHOTT: The sound measuring equipment is required elsewhere in the document to be at least an ANSI Type 2 sound level meter, which gives you a high level of accuracy and repeatability. COMMISSIONER MURRA Y: You mentioned before that Joe citizen could go out and for $100 buy a decibel meter and check sound. Could that person then -- would that be as a reliable meter? Page 56 July 17,2008 And if it were not, would that not produce a lot of complaints that then would be neutralized by somebody from the county bringing a meter of a better quality and saying nope, you're a decibel or two out? Is that the possibility that can exhibit because of that? MS. SCHOTT: There are inexpensive sound level meters that do meet the Type 2 requirements. If a citizen were to get one, then that should be reasonably -- and that unit is calibrated, it should be reasonably within a range of the county's better Type 1 meters. Yes, it's possible a citizen could buy a non-compliant, non-calibrated meter or somehow read it wrong. COMMISSIONER MURRA Y: Or a meter could become not calibrated, right? MS. SCHOTT: Yes, that could happen. COMMISSIONER MURRAY: Or whatever the right word. MS. SCHOTT: Yes. But that's the same -- it's really a similar situation. I'm not sure how that generates more complaints than a person who just perceives noise, doesn't have a meter and calls and to complain because they think it's too loud. COMMISSIONER MURRAY: I can appreciate that, but I've been asked to review this from every aspect of it and that's what I'm attempting to find out from you. I'm trying to find out whether or not we have real science here or enough variation that we will not have solved any problem by all the words. So that's my question to you. And this suggests to me that there's a certain amount -- even with calibration there's a certain amount of give-ya. Am I right in that or not? MS. SCHOTT: Okay, are we talking about the ambient correction or the accuracy of meters? Maybe I misinterpreted your question. COMMISSIONER MURRAY: Well, it has reference to both aspects, does it not? I may probably take a second and reread your Page 57 July 17,2008 paragraph and -- MS. SCHOTT: This section is addressing ambient noise level. There's ambient noise everyplace in our environment. For instance, one particular site may have a lot of traffic noise, as an example. And if the traffic noise and the birds chirping and the wind blowing and all the other noises in that area, let's say for instance is at a level of 52 decibels, and we come out with a sound meter and we measure 56 decibels, it's only four decibels higher than the background noise without the noise source operating. This section allows for a correction for that if you're within nine decibels of the background noise. And that's technically accurate to do a background ambient correction. COMMISSIONER MURRAY: I understood the parameters. What I was trying to understand is whether or not someone could take issue with it, because we speak later about court, whether they could take issue with it and say that there's a real valid question of its reading being accurate because it does go beyond the statement of it simply being a measuring ambient sound. It speaks also of alleged violation. So it does I think -- I think it needs to be, at least for this Commissioner, understood more clearly as to whether or not whatever devices are going to be used to measure are calibrateable to the accuracy that will sustain in court, because that's ultimately where we'll end up with this. MS. SCHOTT: I agree 100 percent. And that is elsewhere in the ordinance. I'll try to find it for you. COMMISSIONER MURRAY: All right, perhaps I missed it. MR. DANTINI: If! may, Gary Dantini for the record. Our equipment that we have is Type 1, which is the most accurate equipment that you can buy. And also we calibrate our machines before we make readings and after we make the readings to -- and it's all for legalities to make sure that our equipment is certified. Page 58 July 17,2008 Which gets certified every year also, they have to be recalibrated and -- to meet the standards, the minimum legal standards as far as Type 2. But we've taken a step further and have Type 1 meters. And if a citizen has bought a meter and is getting a reading, that's probably -- for them it's not going to stand as far as the legal issue. But we have to have some sort of standard that's been set up that we can back our equipment up to to show that our equipment is accurate. And it's just like radar or anything else that you have to show the certifications, you have to show that they've been calibrated and that you're being fair and equal as far as on the readings. COMMISSIONER MURRAY: Mr. Santini (sic), I thank you very much. It's unfortunate, and I'm not sure you would have been able or your organization would have been able to provide us with some kind of a narrative such as that to be able to help us wade through this very technical information that's out of the blue for this person anyway to try to understand all of these details without any basis. And you, ma'am, are trying to answer policy questions relevant to your expertise, and I also see the difficulty in that. So I'm not agin you, I want to make sure that whatever we do, and I'm certain this board does, want to be sure that what we do, if we agree with something that it's going to help all citizens as well as the persons carrying out the task. That's my purpose. MS. SCHOTT: If I might add one other comment. On Page 7, under the definition of sound level meter is where it culls out any sound level meter used to determine compliance with this ordinance shall meet or exceed the requirements for Type 2 sound level meter in accordance with the latest revision of ANSI Standard S-I.4. But I think you've brought up a very good point, and we should probably add to that definition or consider adding to it that the sound level meter must have a current certificate of calibration. I think that would be a good addition. Page 59 July 17, 2008 COMMISSIONER MURRAY: Thank you. I think that's critical if we're going to go to court and survive. CHAIRMAN STRAIN: Any other questions on Page II? (No response.) CHAIRMAN STRAIN: Ma'am, I have a couple on the top. Under the table that's continued on Page 11, the last two items, manufacturing or industrial and agricultural. You've upped the sound levels to 75 and then 87 -- or I shouldn't say you've done it, they're listed as 75 and 87. My concern there is that I understand agricultural and manufacturing within their own worlds can be higher. It's expected when you go to those areas that's a possibility. But with Collier County's, the way we zone agricultural, there's a lot of homes in the agricultural district and there's a lot of agricultural next to large developments. And I was wondering ifthere's any way we could provide a provision -- and you may not be the best person to answer this, it may have to be staff -- that indicates an exception where manufacturing or industrial or agricultural or adjacent to or within a certain distance of residentially either zoned or residentially used property, regardless of whether it's agricultural or not. I think that would be a big factor for people in -- like Corkscrew Island and places like -- MR. KLATZKOW: That's going to be problematic, sir, because often it's like going towards nuisance. I may have an established industrial building or an established agricultural operation, somebody buys adjacent to me and puts up a residence, now all of a sudden what I've been doing for years now violates the noise ordinance. The problem is that people are moving towards the nuisance at that point in time. MS. SCHOTT: Also, these noise levels have not changed, the noise level limits. The 75 was from the previous version of the Page 60 July 17,2008 ordinance. CHAIRMAN STRAIN: I know. But we're again trying to make this a better ordinance and so I'm thinking of Corkscrew Island and places like that that are -- it's basically agricultural out there but it's mostly predominantly used as residential properties and these people out there wouldn't necessarily be protected from a 75-decibellevel then. Ms. Caron, then Mr. Murray. COMMISSIONER CARON: Well, could it be stipulated that-- somehow that the first -- whoever is there first gets the preference in a case like this? I mean, I understand what you're saying, Mr. Klatzkow. If I've had an ago operation for 100 years and suddenly somebody moves in next door to me, now I could suddenly be in trouble. But conversely, what about if we move an industrial plant next to residential? MR. KLA TZKOW: I'd like staff to look into this, because it raises interesting issues. But one possible approach would be grandfather all existing uses and just go on a going forward basis. MS. SCHOTT: I think you also have to consider your competitiveness in attracting these type of uses if you're interested in that. Most city and county noise ordinances do have a limit anywhere from 70 to 75 for these types of uses, agricultural and industrial. So this is not uncommon. CHAIRMAN STRAIN: I wasn't suggesting changing the limit, I was suggesting making it, say, a step-down process if you're close to residential. Our zoning codes try for something that's called compatibility. And even in activity centers, we try to have rings of density bands around those commercial areas to drop down in intensity before you get to low density single-family. The purpose is you have a transitional area. Page 61 July 17,2008 The way this is written, there would be no transitional area. MS. SCHOTT: That's true. The way it's written the limits apply at the site receiving the sound. So if you had residential right up against the agricultural, the limit would be the residential levels at the residential property boundary. CHAIRMAN STRAIN: Okay. Well, then that's where I'm trying to go -- MS. SCHOTT: And there would be no transition, but it -- that's what would apply. CHAIRMAN STRAIN: Let me understand this. The way this is written, the agricultural farm operation has a 75-decibellevel, but if there's a house next door to it on the adjoining property line the property owner can go to that property line and the reading of that property line has to be 60. MS. SCHOTT: Correct, during the day. CHAIRMAN STRAIN: So the residential really then is 60 in regards to it being adjacent to agricultural. If that's the case, it takes care of my argument. MS. SCHOTT: Correct, that is the case. CHAIRMAN STRAIN: Good. That makes it a lot easier, thank you. COMMISSIONER MURRAY: And Mark, I would say to you that further on in here, if I'm not mistaken, you'll find that there is a clause that says, from 1990. And also when it's adjacent to residential, residential has preference, even if it's later. CHAIRMAN STRAIN: Sure, I have that noted too, Mr. Murray, thank you. Page ]2. Anybody have any questions on Page 12? Mr. Schiffer? COMMISSIONER SCHIFFER: Can you explain the logic as to why in Table 2 the higher the difference the less you're going to subtract from it? Page 62 July 17,2008 MS. SCHOTT: It's probably easiest for me to explain that with an example. If you have an existing background ambient sound level of 50 decibels and then you add a new noise source to it and the new reading is 52 decibels, then that means that a large correction is needed because the sound -- let me back up. I'm not giving this example very well. I'm trying to reduce something that's very technical into layman's terms. The large difference between the violating sound and the ambient sound level means that the violating sound is the predominant noise source in that area. So let me start with that example. Let's say we're starting from 50 and now you add a new noise source, a new establishment, and it goes up to 59. Well, that means most of that noise is due to that new nOIse source. So there shouldn't be much of a background ambient correction if any, because the noise is being dominated by the new source that was added. Does that make sense? If you have a really quiet area and you bring in a noisy motor, there's going to be a big difference, the nine decibel difference as my example. So that means that new motor is creating essentially all the noise that you're hearing, it's drowning out all the other background. So you wouldn't make such of a correction. You'd say okay, we went from 50 to 59, so the noise of that source gets a zero correction and we say that source is creating 59 decibels. If you start at 50 and you had a motor that comes in that's not very loud, your noise level might only increase by one or two decibels. And then we're saying well, that motor is probably not generating 52 decibels, the motor plus all the other things in the ambient is generating 52 decibels, okay. So the motor is only a part of that and there's a bigger correction that's made. Another way to look at it is if I have a noise source that's 50 here Page 63 July 17,2008 and a second noise source that is also 50 decibels if it was running by itself, the total you're going to measure is 53, it's not 100. It's a logarithmic scale, so -- COMMISSIONER SCHIFFER: This is a way to correct the fact the combined noises will increase one alone. In other words, two will give you greater than -- your two 50's together will give you greater than 50. MS. SCHOTT: Correct. But it's not directly additive. COMMISSIONER SCHIFFER: Okay. And this is like an industry standard to do this? MS. SCHOTT: Yes. COMMISSIONER SCHIFFER: And the other concern is that you have the alleged violating and the ambient sound. So for example, what if the ambient sound is greater than the code Table I? Does that ever happen, or -- MS. SCHOTT: That can happen. And that is addressed --let me find the section here. COMMISSIONER SCHIFFER: If it's coming up, just point it out when we get there. MS. SCHOTT: No, it's in the past, Page 9. About in the middle of the page there's an underlined sentence that starts with notwithstanding the sound level limits. That says okay, if we have a violation -- our nighttime residential limit is 55. Ifwe have a violation oflet's say 57 but we can show that the ambient level was already 54 in that area, this sentence says that okay, if the offending sound does not exceed the existing ambient by at least five decibels it's not a violation. COMMISSIONER SCHIFFER: All right, thank you. CHAIRMAN STRAIN: Last week we had a presentation by a fellow who's an expert in writing code. First he started out by saying the Bible of what they do is to avoid certain words and one of them is notwithstanding. But I notice that's in our ordinances instead, so I Page 64 July 17,2008 guess maybe that's safe. You have to leave by the time we take a break for lunch, I understand, or close to that. And in an effort to get through this before you leave -- because it looks like your knowledge is probably going to be the most prevalent needed. And so not to shorten Mr. Lewis who has worked hard at reading this as well, anything that he may have to add to that would have to wait until we got public participation. As I notice things that he's brought up I'm going to try to bring them up to you. And I'll read them off the sheet he supplied. I missed the first one, it goes back to Page 9. And he reads -- and he says changes have been made to the provision that puts offending sound in context with ambient sound levels. It is not clear whether a two-part test is being created such that you must have both the violation sound limits per Table 1 and sound that exceeds existing ambient sound level by five decibels. Weare looking to confirm that it does not mean that where sound exceeds the existing ambient sound level by five decibels you have a noise violation, irrespective of whether the sound limits travel -- the sound level limits per Table 1 are exceeded. What is your response to that issue? MS. SCHOTT: Actually, the opposite of that last sentence is true, as I just explained it. What this section means is that if you exceed the noise ordinance sound level limits but it's not more than five decibels above the ambient, there is not a violation. CHAIRMAN STRAIN: I'm going to read these each time we come across one, and that way when Mr. Lewis gets up here, if you're still here he can address more succinctly the remaining issues outstanding; otherwise, he might lose any participation you would have. MR. WRIGHT: Mr. Chairman, real quick, I wanted to clarify that, that it is a two-part test. And we're going to rework this to make it Page 65 July 17,2008 very clear. CHAIRMAN STRAIN: Thank you, sir. Page 13 is all strike-outs. I'm assuming there's no questions there and we'll move to Page 14. Are there any questions on Page 14? Ms. Caron, did you have a question? COMMISSIONER CARON: Yeah. On two -- correction for character of sound. Non-repetitive impulse sounds. You're saying that they can be increased by 10 decibels. That's a huge number. That's 300 percent, right? Every three decibels doubles. MS. SCHOTT: Oh, one way to perceive it. But in terms of loudness, an increase of 10 decibels is roughly -- roughly sounds to the human ear like it's twice as loud. Little bit misleading on how you add sound and how we perceive loudness. But yeah, this was -- again, this was from the previous version of the noise ordinance and hasn't been changed except for a clarification. And this is fairly customary in many of the noise ordinances I work with. What this is saying, basically, if -- and keep in mind, this is only for impulsive sound that happens up to five times in an hour. So if something is dropped or just an instantaneous sound happens to occur and it's only five times an hour, and that would be a very quick banging sound, for example, it allows a limit of up to 10 decibels above the normal continuous noise limits. COMMISSIONER CARON: Okay. So this wouldn't be an issue with mining operations. MS. SCHOTT: No. For instance, mining, pile driving, that would exceed the five impulses per hour, so they would still have to comply with the lower limits. This is -- would just be an unusual occurrence. Let's say a loading dock, somebody drops something by accident, it's not a violation. COMMISSIONER CARON: Gotcha. Page 66 July 17,2008 MS. SCHOTT: But if it's an ongoing, recurring, impulsive noise then it would be a problem. CHAIRMAN STRAIN: Okay, we're on Page 14. Ma'am, I've got a couple questions about multi-family dwellings. It talks about it should not apply if the sound affected unit and source of the sound can be regulated by the same multi-family dwelling management, including restrictive covenants, leases, et cetera. The county doesn't normally concern itself or involve itself with private restrictions. So how does that sentence come into play with what an officer who is trying to enforce this would have to evaluate? Would he have to evaluate the deed restrictions on -- the private deed restrictions ofthe condominium association's documents to see if they address the issue and if they do he leaves to them to enforce it, or what was the intent of that first sentence? That may be the same question that Mr. Lewis is asking when he says can you confirm the intent behind the deleted language effect of this subsection, so -- MS. SCHOTT: I think it is the same question Mr. Lewis was asking. And the intent of this was to keep the county code enforcement out of intra-building disputes. The way it was written before, it did require involvement. So the thought here was that the noise limits should apply at the property boundary, the external property boundary of the apartment complex or condominium but that the county code enforcement should not have to get involved in noise disturbances between apartments or between condominiums. That should be the responsibility of that association or property manager. CHAIRMAN STRAIN: But it says the subsection shall not apply if the sound affected site unit and the source of the sound can be regulated by the same multi-family management. So what we're saying is the burden of enforcing what we are requiring then be put on the management of the multi-family Page 67 July 17,2008 dwelling? How would an -- I'm just wondering, how would we evaluate that to know that that is something that we would -- that they've done? MS. SCHOTT: That's a good question. Would someone from code enforcement like to address how you would evaluate that? Or should the words be modified to -- I can see what you're saying. The way it's written, you would have to make a determination if the sound can be regulated by the property manager. CHAIRMAN STRAIN: Right. We have not in the past ventured into those areas. Go ahead, sir. And you need to identifY yourself. MR. SCRIBNER: My name is David Scribner. I'm the Investigative Manager for Code Enforcement. I think the language is a little vague and maybe we need to tighten that up and put something in there whether or not they've actually adopted that language. I think the intent really is to, as been stated before, to keep us out of, for instance, a duplex and one neighbor is complaining about the noise of the tenant next door. Whether or not the landlord has that written in the lease shouldn't be an issue for the county to get involved in. That's a landlord issue. Same with condominiums. Whether or not they have it in their documents, they certainly can put it in their documents. I know I live in a condo and it's there in my documents. CHAIRMAN STRAIN: So if you live in a condo and a guy in another condo next to you has a -- say a -- I don't know, what, say he's got speakers outside from his stereo system and he blares them all the time, you believe that's outside the purview of Collier County Code Enforcement to enter into that picture and it should be in the responsibility of the -- MR. SCRIBNER: It can be regulated by the management association of that condominium. I think it should be managed by Page 68 July 17,2008 them. CHAIRMAN STRAIN: I think the next question then is if that's what we believe should be the case, have we regulated that to be the case in our Land Development Code or other ordinances as a requirement? Because if we haven't, we've got a gap there that isn't filled by anybody or potentially could not be filled by anybody. And I don't know if anybody's researched that or not. And I'm just throwing that out to legal for comment or code enforcement. Or Ray, you seem to be almost saying something. MR. BELLOWS: Well, I did have a concern about what happens if the management association fails to act and the problem persists. There should be some further recourse for an aggrieved property owner. CHAIRMAN STRAIN: Could this section be looked at from a legal perspective to see, number one, if it's written in a manner that can be regulated by this county. And if it isn't, can we write it that way. And then what subsequent regulations would we need to make sure that there is some way for someone to have recourse, if need be. MR. WRIGHT: That can all be done, Mr. Chairman. My concern is that in the example that you said with the speakers outside, that that person would have a defense to a code enforcement violation, and the defense would be I have a manager. And to me, that's not airtight. It needs to be fleshed out in a lot more detail than it currently is. I don't think that's an acceptable way to handle it. CHAIRMAN STRAIN: Well, if we're making this better and this is going to be the fallback for noise in Collier County, then we ought to look at all these aspects and try to get them fixed. I have more in that paragraph -- MR. SCHMITT: Do you want to clarify, for the record, your name. I don't know if you stated your name for the record, Jeff. MR. WRIGHT: Jeff Wright, Assistant County Attorney. Page 69 July 17,2008 CHAIRMAN STRAIN: Thank you, Jeff. I think -- do you know Jeff? So when he stands up from now on, you'll recognize his name? THE COURT REPORTER: Yes. CHAIRMAN STRAIN: Okay, good. I have more questions about that paragraph, but Mr. Murray has a question about something we've already asked. So go ahead. COMMISSIONER MURRAY: Yeah, it goes into that. And so far as when you think about it, for the condo association you'd be requiring the condo association to sue a member and go into great expense for something that the county should be concerned about for all citizens equally. And so I would just say to you that not every condo association or homeowners association would necessarily have that in their declarations. So I think that's a very severe weakness, to leave it if it were that way. CHAIRMAN STRAIN: Mr. Schiffer. Then Mr. Schmitt, did you have a question after Brad or do you need to go before -- MR. SCHMITT: I just want to comment, the condo associations, as Mr. Murray probably is well aware, in the State of Florida have much more authority than even the county has in many instances and can take action. And I'll turn to the county attorney from a legal standpoint. But they have in the State of Florida some significant power and authority where they can deal with tenants. COMMISSIONER MURRAY: But I have to retort to that, I'm sorry. Here is a situation. Someone in a condo association is rude and acting improperly. The condo association or any of its representatives are not in a position to enforce any law or to compel to change. They can call a Sheriffs deputy, but if the deputy says look, you guys have to go through your management association, we have not resolved the issue, we have exacerbated a problem. I do not think that's a useful Page 70 July 17,2008 benefit to society. CHAIRMAN STRAIN: Okay, ifthere's no other comments on that, Mr. Schiffer, I think you had one. COMMISSIONER SCHIFFER: My thought on this is should we start -- we have mixed use projects now, it's entered into the code, should we start adding that to here? Because essentially within a mixed use project which has commercial also, there is a governing body that should be the one handling this, not the county. MS. SCHOTT: Yes, I agree. And that was one ofMr. Lewis' questions as well. We spoke about that earlier today and we agreed to something about mixed use projects needs to be added to this ordinance. COMMISSIONER SCHIFFER: To this section right here? MS. SCHOTT: Yes. COMMISSIONER SCHIFFER: Okay. Because I don't think you'd want to be in a situation where somebody buys an apartment in a mixed use development, doesn't like the noise coming out of the restaurant and now the County's dragged into that. I think that's an internal problem that could be solved in a civil situation at worst. So thank you. So we will be adding verbiage to this section? MS. SCHOTT: Yeah, it looks like we'll be reviewing the wording of this entire section on both multi-family and mixed use. CHAIRMAN STRAIN: Okay, Ms., I had still not finished my questions on D. And the second sentence of that, talks about this subsection applies only to sounds when measured at the property boundary of multi-family dwelling in residential tourist or commercial use or zoning. I'm not sure how that reads right. Are you saying it only applies to sound measured at the property boundary of a multi-family dwelling zone? I'm not sure -- can you explain to me where it fits? Because we have RT zoning in Collier County, and that's residential tourist. And it actually is hotels, Page 71 July 17,2008 condominiums, time share and some new twist where you have a condominium but you use it as a hotel. Would this apply to those kind of events or those kind of zoning districts? MS. SCHOTT: If they're in one of these zoning districts mentioned, residential tourist or commercial use, yes. Ifthere's another type of zoning that needs to be added, we can certainly do that. CHAIRMAN STRAIN: Okay. Well, then that -- your definition then just brings the question I had, is this subsection applies only to sounds that are measured at the property boundary of a multi-family dwelling. Then it goes in residential tourist or commercial use or zonmg. So I was wondering, is your intention -- you have to have a multi-family dwelling in a commercial use zoning in order for this section to qualify. Is that what it says? MS. SCHOTT: No, residential tourist or commercial use. CHAIRMAN STRAIN: Right. But you've got to have a multi-family dwelling in that commercial use in order for this to apply, because it says multi-family dwelling in residential tourist or commercial use or zoning. MS. SCHOTT: Right. CHAIRMAN STRAIN: Okay. So this only applies to multi-family dwelling if it's in a commercial use. MS. SCHOTT: Or residential or tourist. CHAIRMAN STRAIN: Right. But only a multi-family dwelling if it's in one of those uses. MS. SCHOTT: Right. CHAIRMAN STRAIN: Okay. MS. SCHOTT: Yes. CHAIRMAN STRAIN: How do you apply the RT zoning then? MS. SCHOTT: I'm not aware of your RT zoning, so I'll have to Page 72 July 17,2008 defer that. That's what I'm saying, ifthere's another zoning category that is not listed here, then we need to list it. CHAIRMAN STRAIN: You might classify a multi-family dwelling in an -- an RT zoning allows multi-family dwellings. The reason is this goes to hotels and things like that that are operating right now in Collier County. And I want to make sure if they fall under this, I want to know it because that brings in some more questions about where the measurement's from. Ray, I saw Susan whisper something to you, so she's probably got some insight into this. MR. BELLOWS: Yes, we just want to make it clear on the record that the R T zoning district is classified as residential, not commercial. So the residential levels of the sound ordinance would apply. CHAIRMAN STRAIN: Does this paragraph D apply? MS. SCHOTT: IfRT is residential, as you said, I would think yes. MR. BELLOWS: Yes. CHAIRMAN STRAIN: Okay. So the new project going up at the end of Vanderbilt Beach Road up by Wiggins Pass, that -- Mariah Bay, would it fit, for example, this one? MR. BELLOWS: Yes. CHAIRMAN STRAIN: Would the LaPlaya fit this one? MR. BELLOWS: The LaPlaya is a hotel. CHAIRMAN STRAIN: Right, but it's in an RT zoning district-- COMMISSIONER CARON: But it's in RT zoning-- MR. BELLOWS: Yes. CHAIRMAN STRAIN: So it would fit this one? MR. BELLOWS: Depends if it's -- CHAIRMAN STRAIN: If you can't answer here today, then we can't understand it. And that's why I've got to have an answer for it. That's why -- Page 73 July 17,2008 MS. SCHOTT: Multi-family dwelling is defined on Page 5 as being any building or structure containing two or more residences, each occupied in whole or in part as the temporary or permanent residence of one or more natural persons. MR. BELLOWS: I think that's the difference, the LaPlaya is a hotel. CHAIRMAN STRAIN: It doesn't apply to a hotel. So it only applies to a -- if a -- okay, I hate to keep doing this but I want -- MS. SCHOTT: But if your hotel is a hotel condo-- CHAIRMAN STRAIN: Well, that's where my next question was MS. SCHOTT: -- that would be multi-family dwelling. CHAIRMAN STRAIN: The Registry at the south end of Pelican Bay is a hotel/condo, I believe. Would that apply? MR. SCHMITT: It's operated like a hotel. I mean, we have to clarify this. Because there are -- I know exactly what you're saying. There are hotels that look, smell, taste and oper.ate like hotels but they sell the units as -- units are purchased as private units and then rented as a hotel operation. CHAIRMAN STRAIN: As you know, there are concerns over some transmission of noise from hotels across waterways currently in Collier County. And I'm trying to make sure that we address those concerns so we don't have it again. And that's why this language concerns me. 1 think it needs clarification. I think Jeff has already acknowledged they are going to clarify it. And while you clarify the first sentence, if you could look at the second sentence I just brought up, that would be helpful. In regards to the second sentence, it says measure from the property boundary. In cases where you have properties that stop at seawalls but they have docks and other facilities out over the water through uses of what the state calls a submerged land lease. They don't own the property, it's a leased property. And that means they could Page 74 July 17,2008 have boat activities and entertainment activities on those boats sitting out at docks that would be of a concern to the neighbors across the water in many cases. And Jeff, if you're looking at this, I would like you to take a look at that too, if you wouldn't mind. And that would address problems that we're having currently in Vanderbilt Beach. And I think that's certainly necessary to take a look at, because we know we have problems there. MS. SCHOTT: And as we mentioned before, in that case the sound level limits apply at the property boundary of the property receiving the noise. So irregardless of where that property of the -- out in the water may be, it applies at the property boundary across the water at the site receiving the noise. CHAIRMAN STRAIN: Okay, this also says this subsection applies only to sounds when measured at the property boundary of a multi-family dwelling. So I thought when I read that, I thought it says sound is measured at the property boundary of the questionable facility. MS. SCHOTT: Of a multi-family dwelling that's receiving noise from somewhere else. CHAIRMAN STRAIN: Okay. COMMISSIONER CARON: And then I have a question, in that it's only multi-family? What happens to single-family? MS. SCHOTT: Well, the single family, most of the ordinance is addressing single-family residential properties. The sound level limits apply at single-family residential properties, period. The intent of this section is only to say that we're staying out of property boundaries within a building, that occur within a building. CHAIRMAN STRAIN: I think we look forward to further clarification of this page. That would be helpful. Page 15. We are on a little bit ofa time limit. Mr. Vigliotti? Page 75 July 17,2008 COMMISSIONER VIGLIOTTI: I have a question regarding construction activities. How will this affect roadwork or occasionally when they have to pour concrete in the heat of the summer, they do it earlier in the morning before the sun's up so -- how would this affect 't? 1 . MS. SCHOTT: There's been no change to this section from prevIOUS. CHAIRMAN STRAIN: Mr. Schmitt? MR. SCHMITT: There are provisions to go to the county manager's office and ask for relief from this section ifthere's a unique situation where they have to place -- you know, a 200,000 square foot building is going to place concrete and do 24-hour operation, those kind of things. And it's in paragraph B where they can come to the County Manager's office and ask for relief from enforcement because of the uniqueness of the construction event. Maybe moving steel at night, those kind of things where it's just health, safety, welfare is more at risk if we restrict it to the day than we do at night. And so there again there are provisions. COMMISSIONER VIGLIOTTI: In paragraph B, it says emergencies. But you have this covered. There's no problem right now? MR. SCHMITT: No problem right now. Construction firms will ask the county manager's office for relief from this if they want to do something beyond the hours specified. COMMISSIONER VIGLIOTTI: Fine. So the system we have in place works? MR. SCHMITT: Code Enforcement. Yes. And I'm notified, Code Enforcement is notified. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: And these are short-term events, they're not -- MR. SCHMITT: Yes, short-term events, meaning -- I'll give you Page 76 July 17,2008 an example. The Wal-Mart is going to have 24-hour placement of concrete and they don't want to do cold joints, they want to of course place the concrete slab. Trucks are running all night, those kind of things. They'll come in and ask. And we'll evaluate where the construction site is, the proximity to the units or home -- residential neighborhoods, we'll notify them and tell them this is a unique circumstance. COMMISSIONER CARON: For a week you're going to be or whatever, a day or whatever you're going to be -- MR. SCHMITT: Yeah. Very seldom would it be more than a couple of days, that type of thing, yes. COMMISSIONER CARON: That's what I'm thinking. MS. SCHOTT: That's a section on Page 24 of these waivers. And it specifically says they may be issued for no longer than 30 days. CHAIRMAN STRAIN: Okay, Page 16. Any questions on Page 16? (No response.) CHAIRMAN STRAIN: Under F-l, you're talking about amplified sounds and the need for annual permits and you added the language any area and struck non-enclosed of any business establishment open for entertainment purposes. So would this -- we have a current ongoing problem in Collier County. Would this apply to a restaurant or a bar that has an outside entertainment area today? Would they have to now come in and apply under this section? MS. SCHOTT: Yes. I believe the answer to that is yes, right? There was no grandfathering? MR. SCHMITT: Only if it's amplified music or amplified sounds. CHAIRMAN STRAIN: Right. So if they have a television out there with a speaker, that's an amplified sound, they'd have to come in and get a permit and that would be evaluated as to their closeness and Page 77 July 17,2008 proximity and all the other categories in relationship to residential or whatever they have near them. MR. SCHMITT: That's correct. But if it's a TV and the sound is not on, they don't fall under this criteria. CHAIRMAN STRAIN: Well, there's other criteria in here possibly about other noises, but I understand. MR. SCHMITT: Yes. CHAIRMAN STRAIN: Okay, thank you. Any other questions on Page 16? (No response.) CHAIRMAN STRAIN: Page 177 (No response.) CHAIRMAN STRAIN: Page 18 is a lot of strike-outs. Page 16 and 17, I have one -- there's a note here from Mr. Lewis, let me read that so I can make sure that we've answered it. Under the current ordinance you must obtain an annual permit for live music and/or amplified sound at commercial or tourist-used sites, but only where such music emanates from a non-enclosed area. With a draft ordinance, all establishments (open for entertainment purposes, this is not defined, what does it mean) having live music and/or amplified sound within a commercial or tourist-used area or zone would now be required to obtain such annual permit. It does not matter if the business does not have outdoor seating or any other non-enclosed area. What is the criteria, if any, for the denial of the issuance of an annual permit? Why is this change being made and what is the public purpose? I know you can't answer all those, but maybe parts of those that you can answer, maybe code enforcement can answer the balance. MS. SCHOTT: Right, I can't answer what the criteria would be for denial of issuance of the permit. But the intent of this was that enclosed spaces that perhaps have operable windows, doors or walls, Page 78 July 17,2008 and most places have at least a window and a door, can be a problem as well as non-enclosed spaces. So that was the intent of changing the technical part of that. Regarding criteria? CHAIRMAN STRAIN: And the question would be what would be the criteria for the denial of an issuance of an annual permit. Apparently Mr. Lewis had that question in his hand-out. MR. DANTINI: Right. It's very -- for the record, Gary Dantini. There's very, very few times that there would be a denial. You can't tell somebody as far as anticipate that they're going to go beyond and above the noise ordinance as far as the noise limits. Through the experience that I've had as far as issuing permits, a majority of the establishments have all complied. If they don't, then that's where our provisions come in as far as our noise ordinance, to try to eliminate the situation as far as if they are breaking the ordinance. CHAIRMAN STRAIN: Who issues the permit? Is it issued by your department? MR. DANTINI: Code enforcement. CHAIRMAN STRAIN: Okay. I think what he's saying is do you have any criteria for issuance of the permit. I understand what you just said, but is that written down as a logistical, regulated criteria so when something comes in you have something that you can evaluate it to so you have good standing as to why you either did or did not accept it? MR. DANTINI: Well, what we do is -- or what I have done when somebody comes in for a permit -- no, we do not have anything written down, per se, no. What I do is take a GIS picture of their location and ask them where the -- if it's an outdoor facility, where the speakers are going to be located, give them suggestions as far as how to place those speakers so it will be less of an impact as far as in an area. Also, as far as just for them to be aware as far as the closeness of any residential-zoned area. Other than that, we do not have any Page 79 July 17,2008 written criteria to deny a permit. CHAIRMAN STRAIN: I don't care who from the county attorney's office wants to address this, but wouldn't we be better off having criteria in a format that we could use in this ordinance for this kind of permit operations, or in the Land Development Code, or are there already that and I just haven't got it in front of me? MR. WRIGHT: I think we would be better offwith criteria, Mr. Chairman. For the record, Jeff Wright. CHAIRMAN STRAIN: And I think that's something that we ought to take a look at getting done, then. And the last -- other point that was well raised is, it says open for entertainment purposes is not defined. What does this mean? Do we have a definition of what is entertainment? Is entertainment going out to dinner? Is -- I mean, do we want it -- how broad of a definition -- how do we define that? It's not a bad point to consider as well. MR. WRIGHT: I think this needs a really close look because, for example, a Bingo hall could fall under this. Do we really want Bingo halls to have to get an annual permit? So it might be that we're casting the net too large with this language and we might need to taper it for what we're looking for. CHAIRMAN STRAIN: Then we can expect that's something that your department is going to look at? MR. WRIGHT: Absolutely, Mr. Chairman. CHAIRMAN STRAIN: Thank you, sir. Okay, we're getting past Page 18 and we're, let's say, on Page 19. Mr. Schiffer, then Ms. Caron. COMMISSIONER SCHIFFER: Item D, I'm having a little trouble tracking. It says noises resulting from emergency work as defined in Section 5. Section 5 really just refers you to Section 6. So what exactly does that clause mean? I know it's existing, but -- MS. SCHOTT: I wonder if that reference to Section 5 is left over Page 80 July 17,2008 from the previous version of the ordinance. It may not be the right reference now. CHAIRMAN STRAIN: Well, you have a definition for emergency work on Page 4. Why don't you just drop the reference as it being defined in Section 5, noises resulting from emergency work, period. MS. SCHOTT: Right. Emergency work is a definition, right. COMMISSIONER SCHIFFER: So we'll just take it out? MS. SCHOTT: We would just strike the words as defined in Section 5. CHAIRMAN STRAIN: Anything else, Mr. Schiffer, on Page 19? COMMISSIONER SCHIFFER: On that page, no. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: No, that's okay, I can deal directly with the county attorney's office. CHAIRMAN STRAIN: Page 19, Mr. Murray? COMMISSIONER MURRAY: Under H, where you exclude scale model aircraft, where does that apply? We do have people who operate scale model aircraft. MS. SCHOTT: Right. This is saying that those scale model aircraft would be subject to the sound level limits. COMMISSIONER MURRAY: Permitted uses: All noises coming from the normal operations of aircraft not including scale model aircraft. MS. SCHOTT: Right. So this is saying aircraft noise is permitted -- COMMISSIONER MURRAY: So it's not a permitted use or it's not a -- I don't understand, I'm sorry -- MS. SCHOTT: This section is saying the following uses and activities shall be permitted under this ordinance and are exempt from the sound level limits. So these -- like emergency work is exempt from Page 81 July 17, 2008 sound level limits -- COMMISSIONER MURRAY: I'm not concerned with that, I'm concerned -- MS. SCHOTT: -- aircraft is exempt except for scale model aircraft, which are subject to the noise level limits. This is a list of sources that are not subject to the noise -- COMMISSIONER MURRAY: Do we have established limits for the noises associated with airplanes inasmuch as they fly around and the noise is at this level and at that point it is another level? I'm trying to understand how -- maybe that gentleman can help, Mr. Santini (sic). MR. DANTINI: Gary Dantini for the record. Out on the county fairgrounds they have a RC airfield out there. And I have -- to answer your question, yes, we do make noise readings when there is a complaint. And what you have to do is that within that one-minute period of time that we do a reading where that airplane is is how we do the reading on it. And when it comes it's a little bit louder and when it goes away it's a little bit less. And generally the field that they have out there are well away from any residential area that would create any kind of violation. But we do regulate the AC aircraft. COMMISSIONER MURRAY: Okay. Thank you. CHAIRMAN STRAIN: We're on Page 19. Ms. Caron? COMMISSIONER CARON: Essentially are we exempting government from our noise ordinances? MS. SCHOTT: What section are you looking at? COMMISSIONER CARON: Well, it gives us an exemption here in A. MS. SCHOTT: Construction projects by government. Yes. COMMISSIONER CARON: And they should be exempted from a noise ordinance because ifnobody else is? Page 82 July 17,2008 MS. SCHOTT: I'm sorry, that's a policy question. This was in the previous version of the ordinance. I don't know how to answer that. Would someone else like to address it? COMMISSIONER CARON: I think we do this to ourselves all the time. The rules are good for everybody except the government. I have a problem with that. MR. DANTINI: Again for the record, Gary Dantini. I'll try to give you an example. Road work. We need to get road work done. That would be an exemption such as 1-75, they work 24 hours a day and they have a certain time limit to get that road done. It's for the health, safety issues of the community to get that done as quickly as possible. And under the conditions as far as seasons, the rains, taking everything in consideration the time limits and restraints that they can do to get it done in a quick manner kind of overrides as far as some of maybe the inconveniences that it might obtain for a short period of time to some citizens. So that's probably the reason why that's in there. COMMISSIONER CARON: Again, we should be talking about short periods of time. And maybe we need to define what kinds of exemptions we're allowing, as opposed to just a broad brush of government's just exempted from the noise ordinance. MR. DANTINI: Well, then again it's -- I understand what you're saying there. It would be pretty difficult to define every single little thing to exempt or to have certain restrictions on as far as with the government. And there isn't anything that we really do as far as the county is concerned that -- COMMISSIONER CARON: I guess we could fall back on the old health, safety and welfare phrase. MR. SCHMITT: I'll rescue Gary here in a bit. I think between -- and I'm going to look to Jeff again. We're going to probably have to clarify this because we do not -- we, the government, for instance, the Page 83 July 17,2008 courthouse, other type of construction, they all fall within the parameter of the contractors have to meet the requirements of this code. COMMISSIONER CARON: Right, but that's not-- MR. SCHMITT: Where this has to be clarified is normally -- as Gary talked about, at night, there are certain times or requirements. 951 is a great example. That's being constructed at night for a lot of reasons, convenience, so it doesn't create an inconvenience for the daytime traffic and all the other type of things. Directional bores, those kind of things that are done at night, so they don't interrupt the traffic. I think we'll just have to clarify. But frankly, those kind of things normally have to do with transportation or utility improvements. And I think we can clarify this sentence. CHAIRMAN STRAIN: Before you go to that effect of clarifying that sentence, why don't we see -- how many complaints do you guys get about government processes that basically are processes that we have to have for life, safety and welfare of this community? MR. SCRIBNER: I'm very glad you -- Dave Scribner for the record. I'm glad you asked that question, because when the 1-75 project started we did get a number of complaints from people living along that corridor with the construction noise that was going on at night in specific areas. I did want to point out that the exemptions that are in here are not specifically for government. If you read the first sentence, it says construction operations for which building permits have been issued, comma. That means the construction industry has an exemption in this section. Sometimes we'll get complaints ifthere's a new home going up between two properties and someone complains about maybe the air compressor that's running next door while they're roofing the project. This provides an exemption that they can operate during normal hours. Page 84 July 17,2008 Then it goes on further to say that construction activities that are CHAIRMAN STRAIN: See, unintended consequences of modifying it right now, and it doesn't seem to be too problematic, and the only examples you can provide are ones like 1-75. The negative impact to the taxpayers I'm sure would far outweigh any consequence that you could do in protecting a few complaints that might be unnecessary or not being able -- you couldn't change those complaints anyway. That's a state road and it needs to get done and I would hate to see the consequences of not going full speed ahead at the hours that we want, especially for the traveling public. So maybe it would be better if we just wait and see how this one pans out. If there are a lot of continued complaints about government work, we can always look at changing it in the future. But if -- lacking that, maybe we ought to let it go at this point. Ms. Caron? COMMISSIONER CARON: Ijust think, Commissioner, that there is a difference between health, safety, welfare transportation construction a la 75 or 951 being done 24 hours a day if they want to do it to get it done and over with for everybody and, for example, the construction next door here. And I certainly think that they should have to live up to whatever standards everybody else, we require your employer to -- or anybody else. CHAIRMAN STRAIN: Are there any complaints about the construction next door by anybody, and are you working outside any of the typical standards of a construction site -- COMMISSIONER CARON: What are you talking about? CHAIRMAN STRAIN: What? I'm trying to find out the validity of your concern so we could address it. If there is an example that is being violated, let's fix it. I don't know of one that is, that's what I'm trying to find out. Page 85 July 17,2008 COMMISSIONER CARON: The validity of the concern is merely a general exemption of government with respect to rules, that's all. CHAIRMAN STRAIN: Okay. I don't -- in the case of this noise ordinance, have you guys got any complaints that would lead to a change in this language being warranted right now? MR. SCRIBNER: 1 can't think of any at the moment. If it's a county-generated activity, there's a pretty easy solution to that, .and that's usually the county manager, ifthere's a real issue. Some of the problems that we've had is primarily road construction. When they were resurfacing 41, we had some complaints about the operation of an asphalt plant that was operating which was in direct relationship to the paving operation. And we may well have that again. We haven't had any recently. We've worked with the contractor to mitigate some of those noise issues. We do attempt when we do have a complaint on government, we just don't say sorry but they're exempt, we try and deal with whatever department we're dealing with to try and get them to mitigate the noise issues. Failing that we can always fall back on the county manager and I'm sure he'll take the appropriate action. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Mr. Chairman, I'm concerned that if this is a situation where if it's not broken, I'm concerned about trying to fix it. County regulates itself, and if there's a problem I think they can straighten it out by themselves. I'm really concerned about changing this. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Well, I'm going to fall on the side of Commissioner Caron in this case more than anything else. But I will say this, there is a question I have with regard to it. It says here noise-reducing equipment in use and in proper Page 86 July 17,2008 operating condition and is operated in compliance with Section 6. And it talks about manufacturers' mufflers, et cetera. Who all in the county, in the event that a complaint were to be made, who all in the county goes to check on these things and verifies the issues that are noted here? MR. SCRIBNER: Well, if it was the result of a county construction project, we would contact the construction manager to find out if everything -- all the equipment's being operated, when it's being operated and if it's in compliance with those standards. And then we would talk to the complainant to find out if the situation has been mitigated. If it continues, we would go down and check the equipment to find out if it has mufflers on it. I mean, that's a pretty standard process. We would check to see that it has a muffler. COMMISSIONER MURRAY: So they're -- informal or not, there is a process in place where an approach is made, you rely'upon the efforts ofthe project manager. Failing that, you then -- now, do you enter a formal complaint? Is there a formal complaint? MR. SCRIBNER: Yes. Whenever someone calls in on a noise complaint, we open up a complaint. COMMISSIONER MURRAY: So there is a record, there is an activity, okay. So even though it may be seen as an escape by government, there is a process that does allow for activity. And as you pointed out, the county manager can certainly make things happen. MR. SCRIBNER: Absolutely. And the county noise is no sweeter than any other noise, so we recognize that. COMMISSIONER MURRAY: Okay. I wrote right next to that same statement, escape, because I saw it the same way Commissioner Caron saw it, as the government can escape under that basis. But I see there is a process, thank you. CHAIRMAN STRAIN: We're on Page 19. Any other questions? (No response.) CHAIRMAN STRAIN: Ma'am, on your Item J, you're Page 87 July 17,2008 exempting motor vehicles as defined in the Florida statute. On Page 27 you seem -- COMMISSIONER MURRAY: Yes. CHAIRMAN STRAIN: -- to address on Item H motor vehicles. I'm wondering ifthere's any conflict between the exemption supplied on Page 19 and the restrictions you're trying to place in Item H. And I'm not sure if you did that or somebody else. MS. SCHOTT: H is on Page 28; is that right? CHAIRMAN STRAIN: Page 27. Bottom of Page 27, unless-- sometimes we may have different documents than you. MS. SCHOTT:) may have a different document. Let's see here. CHAIRMAN STRAIN: Cherie', how are we doing for a break? You going to need one or you want to continue on? Okay. We're not going to take lunch, I didn't tell you that? No. MS. SCHOTT: The state has the authority, I guess is the right word to say, jurisdiction to regulate motor vehicle noise, and that's why it is listed as Item J on Page 20. We don't want to try -- generate a conflict with the state statute. CHAIRMAN STRAIN: Does that impact the off-road part of it, though? Does the exemption in J for a motor vehicle as defined, so that means anybody that has an A TV that's defined as a motor vehicle then is exempt from the violations on their off-road use of that because you exempted them in J under Section 6? MS. SCHOTT: No, that's for motor vehicles operating on roadways. So Section H on Page, my 28, your 27, addresses off-road vehicles. And that is consistent with the state ordinance in that the first sentence of paragraph H on Page 27 says that -- CHAIRMAN STRAIN: Yeah, I know -- MS. SCHOTT: -- code enforcement officers will not enforce the noise from vehicles when on a road but they will when off-road. There's not a conflict. Page 88 July 17,2008 CHAIRMAN STRAIN: So on Page 19 where it says motor vehicles defined in that section, could we add motor vehicles used on public roadways so we don't -- MS. SCHOTT: I don't see a problem with that. CHAIRMAN STRAIN: Okay. I hope Jeff or somebody's making these notations. Let's move on to Page 20. Anybody have any questions on Page 20? COMMISSIONER MURRAY: Yeah. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Under L, I notice you have mosquito fogging. Mosquito control planes are out at 3:00 a.m. They don't particularly bother me but I'm wondering whether or not that's an issue that's been considered in here. Is mosquito fogging considered to be that which is associated with planes or helicopters? MS. SCHOTT: Good question. MR. SCHMITT: They're exempt in the statute. They have their own board, their own statute. We can identifY that in here, but they are exempt from FAA requirements and other requirements that allow them to fly at the altitude and at the time that they fly. COMMISSIONER MURRAY: That's fine by me. We need the mosquito control. I'll appreciate that, thank you. MR. SCHMITT: I think we just identify it in there that they're exempt. I don't know what the statute is but we can probably find out. CHAIRMAN STRAIN: Anything else on Page 20? (No response.) CHAIRMAN STRAIN: Page 21? Mr. Midney, then Mr. Schiffer. COMMISSIONER MIDNEY: Under P, authorize school, park or playground activities. I'm wondering about civil war reenactments which take place at the Roberts Ranch, which I think is a community museum. Could that be exempted too? Because I think it should be. Page 89 July 17,2008 MR. SCHMITT: It falls under a different provision. It's a special events permit, different provision. And that would be -- yes, it would be exempt under -- and given a separate permit for a special events permit. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: My question is the human voices, why is that exempt? Because one of the concerns we have is a project where there's a lot of noise that is essentially human noise. In discussing outdoor seating it was people watching a silent television yet the human noises that resulted from success of a team or something. Why is that exempt? MS. SCHOTT: There has been a lot of discussion on this with other -- in other cities and counties. And I think Gary Dantini has done more research on it than I have. But the basic inclusion we made is that we didn't want to get into a situation where we were violating someone's right to free speech. And that has been the question in courts. When noise ordinances limit the noise from human voices, there's been a lot of legal wrangling going on recently about whether that is violation of free speech amendment rights. And we wanted to avoid that possibility of getting caught up in that type of court proceeding. COMMISSIONER SCHIFFER: So somewhere in the constitution we discuss the volume of a voice -- MS. SCHOTT: That's a big question right now. CHAIRMAN STRAIN: I think this is too broad to be put in here. I'd rather see it not in here. Let the decision be up to the courts through proper channels and let them fight it out. By putting it in here it seems that any level of human voices, we've just basically written it off as non-challengeable, and I'm not in agreement with that. I think what you're having going on in bars and restaurants right now, if it gets to a level that is disturbing, higher than normal -- it's like being in a theater. You can whisper to your spouse, Page 90 July 17,2008 let's leave, there might be a fire, but if you say that too loudly, you're causing a disruption that may not be protected under rights of freedom of speech because of the problems it's causing. And we may have a similar situation here. I'd rather not open the door to shutting it, basically. MR. DANTINI: For the record, Gary Dantini. At what level would you put that? What is too loud? And that would be the situation -- one of the situations that you would run into. Because they can be awful loud and not -- as far as using our noise ordinance and noise limits not be a violation. Is it too loud to the person that's listening to it? CHAIRMAN STRAIN: Well, any of your criterias. And you found ways to establish decibels levels for the rest of it, isn't there decibel levels for voices collectively heard from a distance? MR. DANTINI: Well, it would be the same as anything else that we have as far as any kind of noise. CHAIRMAN STRAIN: Okay. But then if you put noise resulting from human voices, if you just eliminated that as a method of measurement to prove you have a problem then. So I think just the opposite, this shouldn't be here at all. I think it opens the door to a problem that I'd rather see the courts settle, if we can get it that far. MR. DANTINI: Well, I won't speak for the county as far as whether they want to go to court on it or not, but it would be a very, very difficult situation to stand up. Mr. Klatzkow, what do you think? MR. KLATZKOW: I don't have any issue with eliminating this. But staffs going to have to be cognizant before writing up NOV's when it comes to this issue. I mean, they're going to have to consult with our office, because this is an issue. CHAIRMAN STRAIN: I understand it is. And I don't-- MR. KLATZKOW: I understand your position, and there may Page 91 July 17,2008 be times when we might want to proceed, but I'm a little concerned that staff could just proceed with an NOV without consulting with our office. CHAIRMAN STRAIN: The way I see this written is any noise from human voices, no matter how ridiculous, would now be exempted from any prosecution under the noise ordinance. I don't think that kind of blanket right is not fair -- MR. KLA TZKOW: If you got a group of people in a bar who are drunk and who are just boisterously loud, that is -- I think that would be an issue for code enforcement. But I understand your position. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, and why couldn't this be -- and we've had this in the code before, there's a situation in a Section 12 where noise violations did not require testing equipment. One thing we have is unreasonably loud, raucous and jarring. Why can't this be something that could be determined at that time in that method? Obviously a testing device might be very difficult to capture an annoying voice, but -- MS. SCHOTT: With voices that would be very subjective. How would you determine what is considered unreasonably loud from a human voice? I think that would be very difficult to get agreement on what was considered a disturbance and what wasn't. MR. DANTINI: And to give you another example, kids in a pool, whether it's private or public pools making a -- yelling and screaming and laughing and having a good time, how would you regulate that? MR. KLA TZKOW: But nobody's writing citations for that. What we're talking about is the bar situation where people at 1 :00 in the morning are being boisterous. CHAIRMAN STRAIN: I'd rather see the burden of proof put on the person causing the problem than giving them a blanket exemption Page 92 July 17,2008 to walk away. So taking this out actually works better I think than trying to leave it in and giving everybody a blanket to say you can do anything you want, we're not enforcing noise from voices. That gives us the opportunity to try to enforce it and then take it farther if need be, or we can decide at that point not to take it further based on legal represent representation. MR. DANTINI: I was just going to say, I'll leave that up to legal. COMMISSIONER SCHIFFER: Mark, I still have some on the page, a different topic -- CHAIRMAN STRAIN: Go ahead, sir. COMMISSIONER SCHIFFER: -- but I think when we get to Section 12, let's bring that up again. The 0 noise is exempt from testing, emergency generators and stuff like that. Where in here do we allow the operation of generators and stuff during an emergency situation? I mean -- MS. SCHOTT: The intent was that that would be included under emergency, the definition of emergency and emergency work. COMMISSIONER SCHIFFER: But if you read that, the definition of emergency gives me the impression something's collapsing. Emergency means an occurrence or a set of circumstances involved in the actual or eminent physical trauma of property or damage which demands immediate attention. That's -- the generator is not on to protect the roof from coming in. And even -- MS. SCHOTT: A generator would be on to prevent property damage, though, and would be used to prevent physical health issues and physical damage to properties. COMMISSIONER SCHIFFER: More the comfort of your neighbors is usually what it is. But should we somewhere in there put that these generators are allowed, or is it someplace else? I mean, I really looked and couldn't Page 93 July 17,2008 find it so -- while it's okay to test it. MS. SCHOTT: Right, the ongoing operation is -- unless it's considered to be classified under emergency work, it's not otherwise addressed. So if you think it should be then we'd have new text we would have to consider. COMMISSIONER SCHIFFER: I mean, I think most of the generators that people use in emergency would violate this sound ordinance. MR. DANTINI: Gary Dantini for the record. To answer your questions, we have few complaints as far as people running generators. To give you an example, somebody lost their electricity and they're -- for whatever reasons they'll get a portable generator. And what we do to address that is that we make sure that when and if there's a complaint that they enclose that generator on all four sides. And what that does is makes the noise go straight up in the air. And then we'll regulate as far as the noise with the meter to make sure it stays in compliance with the noise ordinance. So we do address those that happen on a non-emergency type of time. COMMISSIONER SCHIFFER: Gary, let me ask you a question. In a state of emergency when the commissioners declare it, do they waive this ordinance in that process? MR. DANTINI: Well, again what Lisa had referred to is the intent of our emergency would be that they be exempt from that. COMMISSIONER SCHIFFER: So Jeff, they would essentially, if they're declaring an emergency after a hurricane, they would waive the noise ordinance for everybody, because -- MR. WRIGHT: Yes. If! could direct you back to Page 19, the exemption list. One of the exemptions is noises resulting from equipment or operations incidental to the emergency repair or Page 94 July 17,2008 restoration of services such as public utilities or other emergency activities in the public interest. I think that would -- COMMISSIONER SCHIFFER: So you think that covers it -- MR. WRIGHT: -- include generators to keep the lights on. I think that would. COMMISSIONER SCHIFFER: Okay, as long as it's clear that -- because they really are annoying and there is a lot of problems post hurricanes. CHAIRMAN STRAIN: Joe? MR. SCHMITT: If we're finished with that, I want to go back to paragraph N a minute and just for the record note that we're going to have to clarifY that. And if this comes back, and I believe it will, we're going to have to clarifY human voices. Let's also understand that this ordinance creates the parameters of when I respond and do not respond to a noise complaint. And if I don't have anything in there defining the limits of a human voice -- again, we get a lot of complaints from kids in swimming pools. We do. Neighbors down the street, kids in the pool, swimming, making noise, and they'll call code enforcement. And I've got to go out there and do measurements. So, you know -- or do I do it for sports events, assemblage of a crowd of human noises for -- so those kind of things. And I know specifically what we're targeting here and I think we'll have to come back and identifY where we believe human voices or the crowd noises would be deemed a violation, rather than just omitting it. So I just want to clarifY that. Because it -- again, it's the limited resources, I have to respond to a complaint. CHAIRMAN STRAIN: Okay. I don't have any problem with you trying to define it. But the point is it's too broad the way it is. Mr. Murray? COMMISSIONER MURRAY: Not directly relevant to that, but Page 95 July 17,2008 within the context. Under 2 ofM on Page 20, and we speak about it's presented to the county's Director of Code Enforcement who is hereby authorized to ascertain with or without assistance of an acoustical engineering firm retained by the county. Is that presumed then that the resource that you're using is definitely an engineering person, an engineer, or could it be a technical person, an acoustical technician? Would you think it would be useful to nail that down a little tighter? MR. SCHMITT: Yeah, because my folks are just trained technicians on the equipment. COMMISSIONER MURRA Y: I don't know if an acoustical -- I'm presuming that a telephone call is made, they get ahold of the engineering firm and they talk to somebody who is not an engineer, they get the information, they record it, they use it. They're basing it on that. Could it be subject to be taken down if it were ultimately to court. That's my only question. It's probably one of the angels on the head of a pin, but just the thought about it. CHAIRMAN STRAIN: We're on Page 21. Anybody have any-- COMMISSIONER SCHIFFER: Mark, let me go back. Jeff, I've read that section you have, and I'm not sure that does cover it. What it really states is that the equipment and operation incidental to the repair or restoration of services. I think we can be more clear that personal generators are -- I wouldn't mind adding an 0, that noise resulting from regular maintenance or during time of need or something, so that it's clear. CHAIRMAN STRAIN: Mr. Klatzkow? MR. KLATZKOW: You can't cover everything in an ordinance. I spoke with Diane Flagg just a few moments ago, and we need to have some sort of administrative guidelines that are approved by the Board of County Commissioner that set forth parameters of when NOV's are issued or not issued. Page 96 July 17,2008 We can take up an issue like that in an emergency situation generators will not be considered to be in violation of the county code or human voices at a swimming pool shall not be considered. Because if we're going to try to get everything we can possible think of in an ordinance, you're going to miss stuff. And it's very hard to change an ordinance. Ifwe put together policy and guidelines for ultimately the board to approve, when these issues come up, we could amend those and get them back to the board. CHAIRMAN STRAIN: That's wise consultation, thank you, sir. I think we need to move on with this and do the best we can. I think, Jeff, you're hearing the concerns we have. If they can be modified by the next revision that's great. And I think, Brad, you could be looking for that modification. COMMISSIONER SCHIFFER: Yeah, I just lived in a time of borderline Mad Max with generators. So I know what Jeffs saying is good, but believe me, it's a -- post hurricane is a strange world. CHAIRMAN STRAIN: We need to move ahead to finish up with the availability of our noise expert here and still allow some members of the public to have some time with her if they'd like. So let's move on to Page 22, which is mostly -- go ahead Mr. Midney. COMMISSIONER MIDNEY: I'm sorry, one more thing on 21. Talking about the Immokalee racetrack. When you're moving from class of noise A to A and C, I remember that when we had a hearing on that noise, there was a measurement that said that the noise was not excessive, it didn't violate the noise ordinance but yet subjectively people who lived there felt that it did. When you add in testing of C noises, would that maybe pick up some of the complaints that the people had that they felt that it was too loud? MS. SCHOTT: No, most likely not. It would have the same result as the previous octave band requirements. . Page 97 July 17,2008 MR. DANTINI: For the record, Gary Dantini. I have made numerous noise readings out there at the locations of the consultant that did the work for this part of the ordinance, and everything was complied to. I've been anywhere from a quarter of a mile to almost three miles away from it and obtained the same results using both the octave band and the A weight on the decibel meters, and they were all the same on it. COMMISSIONER MIDNEY: They all fall within range. MR. DANTINI: Yes. COMMISSIONER MIDNEY: Thank you. CHAIRMAN STRAIN: Page 22, any questions on 22? (No response.) CHAIRMAN STRAIN: Twenty-three, which is all strike-outs? (No response.) CHAIRMAN STRAIN: Page 24? (No response.) CHAIRMAN STRAIN: Page 25? (No response.) CHAIRMAN STRAIN: Page 26? (No response.) CHAIRMAN STRAIN: Page 27. (No response.) CHAIRMAN STRAIN: Bottom of Page 27, H, good old H, it refers to the last line code enforcement officers or by the state -- or by the Sheriffs Office including without noise testing by applying Section 6 narrowly construed. Do you mean Section 6? Because I couldn't find out why Section 6 was picked when it was really the exemption section. Is there more to it that I missed? Or do we need Section 12 on the following page or another page? MS. SCHOTT: I'm afraid I can't answer that. I didn't add that Page 98 July 17,2008 reference in there. CHAIRMAN STRAIN: If someone could check on the reference, I just question the reference. If you could just check it. I don't want to waste a lot of time on debating that now. When this has talked about off-road use, this came about as a presentation to the BCC and a request by the Board of County Commissioners to look at some way for say regulate the off-road use of A TV's and properties next door in the Estates especially. I personally can tell you it's a real problem. Does this address -- is that what this addresses? MS. SCHOTT: Yes. CHAIRMAN STRAIN: Okay. Mr. Murray? MS. SCHOTT: Just looking at the text, I agree with you, it probably should reference Section 12 instead of6. We'll have to check that. CHAIRMAN STRAIN: Okay, thank you. Mr. Murray? COMMISSIONER MURRAY: Mine relates to both Pages 25 and 27. Starting on 27, two, if cited by code enforcement, the Code Enforcement Board shall conduct, et cetera. I wrote my note to myself can code enforcement confiscate? And I don't think that they can, but I'll tell you now why I wrote that note. Because on Page 25 B, it speaks about court action and equipment may be confiscated. And I note further that there are two avenues, one is through code enforcement, the other is a board, and the other is through court. And I wondered whether or not we have an issue there that needs to be qualified further. If avenue A, let's call that the court, is going to be taken, the person's material, equipment, whatever it is, can be confiscated. But if it's going through the Code Enforcement Board, I don't know that they have the right of confiscation. MR. SCHMITT: I'll have to bounce that to Jeff. I don't think Page 99 July 17,2008 they do. MR. WRIGHT: I don't know of any authority that would allow the Code Enforcement Board to order confiscation of equipment. Foreseeably if it was in the court setting, for example, the Sheriffs Office brought the case, that might change. But I would say the code enforcement officer shouldn't expect to be grabbing the equipment when they go out in the field. COMMISSIONER MURRAY: And I agree with that. But my point, Jeff, is that -- or sir. But my point was that ifthere are two avenues, it doesn't give equality in my mind. It doesn't provide equality. If one can be confiscatory and the other one cannot be then it's luck of the draw or manipulation to get to -- you see my point now? MR. WRIGHT: Yes, I do. COMMISSIONER MURRAY: Thank you very much. CHAIRMAN STRAIN: We're on Page 28. Any questions on Page 28? COMMISSIONER SCHIFFER: I do, Mark. CHAIRMAN STRAIN: Mr. Schiffer. COMMISSIONER SCHIFFER: And 28 seems of interest to me because what this is saying, this is where you can make a judgment without the testing equipment. And I guess the theory, the thing is why has this failed in the past? There's, for example, Section C-l, it's stating that, you know, something is clearly disturbing by an individual of normal sensibilities. Why hasn't Code Enforcement people -- is it finding people with normal sensibilities or -- I mean, why haven't people stood on properties that we've seen videos and stuff from and determined that this was a violation based on this? I guess you can't -- MS. SCHOTT: Previous version of the noise ordinance did not allow for a violation without a sound level meter reading, so this whole concept is new. Page 100 July 17,2008 COMMISSIONER SCHIFFER: It's not underlined. MS. SCHOTT: What part is not underlined? COMMISSIONER SCHIFFER: Well, Page 29. I mean, the whole Section 12 appears to have existed prior. MS. SCHOTT: Let's see. MR. KLA TZKOW: It's recent. COMMISSIONER SCHIFFER: It's recent? MR. KLATZKOW: It's recent. COMMISSIONER SCHIFFER: From ordinance 90-177 MR. KLA TZKOW: No, no, no, this came up about a year ago, it was enacted. CHAIRMAN STRAIN: Oh, so this section of this ordinance was enacted a year ago, and what you see underlined is the changes from the new section that was enacted a year ago to today. Okay. MS. SCHOTT: Good point. COMMISSIONER SCHIFFER: Then a year ago why didn't somebody go out and use this section? CHAIRMAN STRAIN: I think Stevie Tomatoes is the one you're referring to and I believe that originated even prior to that, possibly. How long -- that one's been going on for quite some time. I don't know. MR. SCRIBNER: For the record, Dave Scribner, Investigation Manager. This section was brought in to address A TV violations. Stevie Tomatoes is a violation that can be measured with noise testing equipment. This section was written for violations in which a noise test would not necessarily produce a violation. If you were riding an ATV and it's driving away from you and you're taking a one minute reading, you're not probably going to find a violation on that. And Stevie Tomatoes is something that we can take a noise reading on. Page 101 July 17,2008 CHAIRMAN STRAIN: That probably doesn't answer Brad's question, though. COMMISSIONER SCHIFFER: Yeah, because if you take a noise reading and you can't get it yet it's very obvious standing on the neighbor's property line that there's a problem. It mean, I think honestly, this is maybe the best way to solve some of these issues. I don't know, maybe there's a way that we define who the people are that make that decision. But if you stand there, it's obvious that there's a problem, I don't care what equipment you need. It's pretty -- I mean, it's yes and no. I mean -- CHAIRMAN STRAIN: And this seems to get that practicality somewhat as an attempt to insert it into the code. COMMISSIONER SCHIFFER: I think so, yeah. I guess the fact that I found out that it's new means it may not have been used in the past. But it certainly -- because one of the concerns we have in the next issue is that everybody is saying you can't get noise ordinance violations. But after reading it this, it seems like you should. CHAIRMAN STRAIN: I think that was a statement more than a question at this point, so -- on Page 28. Ms. Caron? COMMISSIONER CARON: Just to follow up on that for a minute. But in the past year since this has been in -- this ordinance has been in effect, have we ever used this? CHAIRMAN STRAIN: Code enforcement would need to answer that. MR. SCRIBNER: Sorry, I was doing some research. Could you restate the question? COMMISSIONER CARON: I just wanted to know, this ordinance has been in effect for a year now, this part of -- have we used this clause at all? MR. SCRIBNER: Code enforcement has not, has not found a violation in this clause yet. Page 102 July 17,2008 CHAIRMAN STRAIN: Have you been called to investigate one where were this could have been applied? MR. SCRIBNER: Yes, out in the Estates with some A TV's. But when we get out there, the A TV's are not in the area. COMMISSIONER CARON: But here this would not apply just to A TV's. A TV's are never mentioned here. MR. SCRIBNER: Well, in businesses the exemptions are that lawful businesses, professions or occupations, this section does not apply to any lawful business or profession provided any of the listed classes and noises typically emitted by that business or provision. That's on number four. COMMISSIONER CARON: So there's your -- yeah, okay, there's the problem. CHAIRMAN STRAIN: So this is set up for -- and I understand your frustration about A TV's, because the Sheriffs Department I know has the same problem. They run up and down the streets and they do it just long enough to know a deputy can't get there. And then they hide in their garages until the deputy patrols and they come back. I've run into the same problem constantly. MR. SCRIBNER: Right. And this was drafted, this language was drafted to specifically address that issue and not trying to use this to circumvent the testing process that we've had in place. And I was just trying to research that and read for it so I could give you the proper cite. CHAIRMAN STRAIN: Well, it's a good attempt, rather than none at all. I just hope there's a way to make it stick. On your Section 12, Page 28, Item B it references Section 6 for classified as a residential use in Section 6. When you get time if you could check that, I'm not sure that's the right section it should reference. Any other questions on Page 28? (No response.) Page 103 July 17,2008 CHAIRMAN STRAIN: Page 29? (No response.) CHAIRMAN STRAIN: Page 30? Any questions? COMMISSIONER SCHIFFER: I mean, the new wording, is that to get more bite in this or -- what it's saying -- MS. SCHOTT: New wording where, what section? COMMISSIONER SCHIFFER: On four, up on four on the top, Page 30. Our Page 30. It would be 12-C(4). MS. SCHOTT: Right. COMMISSIONER SCHIFFER: In other words, I think what this is saying is that even though it is a lawful business, that if you get 500 feet away and you can still hear it, it's a problem? MS. SCHOTT: Right. That was based upon some testing done . by Gary Dantini to determine the exact distance that was desirable. So this is saying -- right, if it's audible 500 feet or more. MR. DANTINI: For the record, Gary Dantini. The purpose of that was to eliminate the perception that people were getting past the noise pollution that some businesses were polluting out into the air, as far as the base. And a lot of the establishments right now are staying open 2:00 to 4:00 in the morning. And even though (tapping) you can hear it, and after about 15,20 minutes you keep hearing that, it's not a violation or anything, but why do they have a right to emit that sound into somebody else's residence. And that's where the 500 feet came in, that was a reasonable distance where -- that anything past that would be unreasonable for anybody else to listen to. COMMISSIONER SCHIFFER: All right, thank you. CHAIRMAN STRAIN: Okay. I'd like to go into the public -- COMMISSIONER MURRAY: Could I -- CHAIRMAN STRAIN: Mr. Murray. COMMISSIONER MURRAY: Mr. Dantini. I understood your explanation and I appreciate where you're coming from, but there's a Page 104 July 17,2008 certain amount of degradation of sound as it travels. Five hundred feet, I mean, if that (tapping), that sound that you were making, how far-- is 500 feet the magic number for degradation of sound? MR. DANTINI: Well, what we did is, Mr. Scribner and myself, we went out and took a boom box and marked off 50 feet, 100 feet, 200 feet, 300 feet, 400 feet, 500 feet, on back. We made readings. And at the 50-foot, we tried to make that as our base point as far as a -- that was in -- I mean, not in violation, but it was within the ordinance as far as 55 or 60 decibels. All depends when you're going to read it during the day or during the night, which at night would be 55 for a residential zoned area. And we stepped back made readings at each one of those, and at 500 feet, with it being at 50 feet audible and in compliance, at 500 feet you could not hear it. COMMISSIONER MURRAY: Just out of curiosity then, as it degraded, when was the level of audibility reached when -- MR. DANTINI: It was between four and 500 feet. COMMISSIONER MURRAY: That's what I needed to understand. All right, thank you. CHAIRMAN STRAIN: Ray, do we have any registered public-- go ahead, sir. MR. SCRIBNER: Can I just add for the -- I want to put this on the record. Dave Scribner. That when we took these readings and we set this up, we have the worst case scenario, we had nothing in the way, we did it in a straight line. There was no objects blocking or reflecting the sound. We tried to make it as open as we could to take our readings to make it the worst case scenario. And that's how we came up with the 500 feet. CHAIRMAN STRAIN: Ray, do we have any public speakers? Item #12 Page 105 July 17,2008 PUBLIC COMMENTS MR. BELLOWS: Yes. The first public speaker, Doug Lewis. CHAIRMAN STRAIN: How many speakers do we have? MR. BELLOWS: Three. CHAIRMAN STRAIN: We'll try to get through everybody before lunch, if Cherie can bear with us that long. I ask you to please consider that she's trying to type everything you say, so don't get like me and talk too fast, please. MR. LEWIS: Good morning, Commissioners. For the record, my name is Douglas Lewis, I'm an attorney with the law film of Roetzel and Andress. I'm a registered lobbyist. I'm here representing the electric companies on this item. I'm here with president and principal consultant Gary Siebein, with Siebein Associates. They're an acoustical consulting firm. They were established in 1981 with an office in Gainesville, Florida. Siebein and Associates has worked on over 1,000 projects across the United States, has become a premier acoustical firm in the southeast working on noise ordinance projects for the City of Sarasota, for example, City of South Daytona Beach, Lake County, Manatee County, town of Hilton Head, South Carolina, to name a few. We received a copy of the latest draft of the noise ordinance from staff on July 9th, and we have reviewed the noise ordinance with our consultant, Gary Siebein and provided staff yesterday with a comment of our preliminary questions and comments. You should each have a copy of our e-mail to Gary Dantini and other staff members on this item. In addition to these preliminary questions and comments, I have more some of general nature. And I did speak of on a specific nature to Jeff Wright yesterday about some of the recommended language changes in the ordinance. I would like to commend staff for bringing this ordinance before the planning commission before it is brought to Page 106 July 17,2008 the board to allow for public input and vetting of the ordinance. I'm happy to discuss with you today any specific language changes or we can continue this work with staff after the hearing. Today I would like to offer the following general preliminary comments. And I understand that these types of issues are a difficult balancing test, balancing the interest of the public, the interest of other community at large, businesses, individuals. So again, it's not an easy project. Many communities grapple with this and look at whether they're going to address these types of issues or allow these issues to be addressed under the doctrine of nuisance through the courts, allow community associations, condo associations to address them or does the county or municipality seek to get involved in these matters. They're are very difficult areas. First, a noise violation may occur under the current ordinance either with or without the use of sound testing equipment. For violations that do not require the use of testing equipment, the noise affected site must be classified as residential use. So we're trying to protect these residences. Noise typically emitted from lawful businesses are currently exempt from noise violations that do not require the use of testing equipment under this section that we just talked about, 5483. As such, testing equipment is needed to determine whether a violation of the measurable decibel limits has occurred for such lawful businesses. And I would like to -- some of the questions were raised. I'd like to know if the effect of this ordinance is to address that specific issue, to establish measurable limits that can be enforced to address these examples that you talked about in the community. This provides, these measurable limits provide certainty and allows businesses to design and to build in such a way as to comply with acceptable sounds level limits. It creates certainty in the community . Section 5483 was intended to go after A TV violators initially Page 107 July 17,2008 when it was drafted, not lawful businesses. And that's exactly why when that was presented by the county attorney's office, it was created in that form. With the draft noise ordinance that's being presented, this exemption goes away if noise generated from such lawful business -- is audible. CHAIRMAN STRAIN: By the way, when we started this, you were the guy that I was trying to caution not to speak too fast, so -- MR. LEWIS: You're correct, Commissioner. You are correct. CHAIRMAN STRAIN: Every time you're up here, she has to ask you, so -- MR. LEWIS: Thank you. With this ordinance, the exemption goes away if noise generated from a lawful business is audible at the noise affected site at a distance of 500 feet or more. This is a very substantive change that creates significant uncertainly for many existing businesses. It understand the reason that we've discussed but the reality is it is a very substantive change and it does create uncertainly for existing businesses. It does open the door to violations being brought even where a business operates within the measurable decibel limits established under the section of the ordinance where violations are determined by testing equipment. With this result, it begs the question, you have to ask yourself, why do we then have measurable sound level limits for businesses if we aren't going to rely on those standards, those measurable limits? We request that the planning commission recommend to the board and staff that this proposed change come out and that the lawful business exemption is left intact. And there are also legal reasons for that as well that I'm happy to discuss with the county attorneys office. Second, the noise ordinance establishes a one size fits all approach to sound level limits in the county. It treats areas like the Page 108 July 17, 2008 Estates the same as more urban portions of the county. If you note on Page 8 of 31 when we're talking about the definition of, under 6-A(6), in the mixed use context, residential sound limits would apply. So when you have commercial activities occurring with residential uses, you would look at for purpose of a violation of your sound level limits the residential standards. Where we have in the county more urban areas with higher ambient sounds and where our Comprehensive Plan encourages us to bring these residential uses to commercial or industrial areas, there are a lot of very good policy why we want, for traffic and other reasons why we want to encourage this. We advise that mixed use and town center communities be treated differently under the ordinance to enable them to comply and to operate within the noise ordinance and function with greater certainty. Outdoor activity and lifestyle is why many residents choose to come to Naples. Encouraging these types of activities serves a significant and important public purpose. Cafes spilling out onto the sidewalks and moderate music that's being played at a wine bar would generate about 55 DBA's at the property boundary of an upstairs residential unit or across the street. We simply cannot have mixed use communities and town centers and not account in a reasonable, responsible way for the higher levels and account for that in our noise ordinance. To address this, for example, sound levels in balancing these interests of the residents and the community, sound levels, for example -- and other communities do that this -- could be measured from within the enclosed noise affected residential unit with the windows being shut -- so the residents can close their windows and reside in their home -- and not from the property boundary of the noise affected site. Also separate day and night sound limits could be established for mixed use communities, much in the same way that we've treated Page 109 July 17,2008 dense multi-family living environments under the noise ordinance, acknowledging that there's higher levels of ambient sound, acknowledging that people like that more urban environment. If you look at Page 14 of 31, if you look at the text that was removed, we established a point of measurement for determining sound violations, and that was within the enclosed unit for purposes of these multi-family dwelling units. In addition, we established other standards that are in compliance with HUD requirements for habitability within the unit. And so, much like the way we've treated multi-family in the past, we can treat mixed use town centers in the same fashion. Under the current ordinance, you must obtain an annual permit for live music and/or amplified sound at commercial or tourist use sites, but only where such music emanates from a non-enclosed area. This currently addresses the -- this provision currently addresses the outdoor seating area that you've raised, Commissioner Strain and the concern that you have about outdoor seating. Under the current ordinance again you would be required to obtain a permit if you had amplified sound or music that emanated from this non-enclosed outdoor seating area. With the draft ordinance, however, all establishments that are open for entertainment purposes -- and again, entertainment purposes is not really clearly defined at this point -- that have line music and/or amplified sound within a commercial or tourist use area or zone would now be required to obtain the annual permit. And we've asked staff for the basis of that change, why that's there, and I think there's been some discussion about why that's occurring, and to identify the public purpose that's being served and how many additional businesses will now be required to obtain such annual permit. Staff should provide this information in support of this proposed change. Are we looking to go after establishments in the community like Page 110 July 17,2008 King Richard's or a local Bingo facility that has amplified sound that's occurring within the unit? Again, the standard that it come from a non-enclosed area has been removed. Why then do we have the noise ordinance, the sound level limits that we've established, and we've added the C-weighting? If that's not sufficient, why are we not requiring these businesses to obtain permits? The current ordinance would remove the non-enclosed area requirement for permitting. As such, any business with live music or amplified sound and not having outdoor seating or any other non-enclosed areas would now be subject to permitting requirements. We request that the non-enclosed area requirement for permitting be left intact and we address any specific issues in other ways, namely through the sound level limits that we've established in the county. Finally, in order to offer essentially a better ordinance or to improve -- in the spirit of improving on the ordinance, in jurisdictions like Lee County, and even in our earlier renditions going back to 1990 of our own ordinance, we addressed issues where people came to the nuisance, so to speak, where you had an established commercial use that was operating, functioning in a commercial area and the adjoining site is rezoned to residential. That adjoining landowner made the decision to come to that area and to construct. Where lands are zoned residential or residential units are constructed adjacent to or near existing operating commercial businesses, sound level limits for commercial or tourist should apply to such residential use areas. Again, those higher limits, because they've come into the commercial area as property owners have elected to locate in these commercial areas. Electing to move into these areas, in doing so, residential uses could be designed and constructed in a way to account for these higher sound levels. They're in effect in a better position because they are now the party that's constructing and designing, not the established business. Otherwise, commercial owners are at risk of future noise Page 111 July 17,2008 violations, given the changes to abutting lands involving residential uses, changes they really can't control other than appearing at the hearing. This creates real uncertainty. I did have some comments. I know you went through in a very methodic way, and I appreciate, Commissioner, reading into the record some of the comments I had. I did have some comments that may be insightful as you went through, a handful as you went through page by page. And I'm happy to do that now or -- CHAIRMAN STRAIN: Well, I realize that you have a lot of good and valuable information. And you've come before this panel before on the other issue, and we're grateful that you had because you brought in issues that not everybody may have thought of. And I had requested many times that staff work with you as this came forward. You're bringing in a lot of highly technical issues right now that I would like to have had ahead of time with time to digest before today's meeting rather than try to react to your reading of them and reading multiple questions into the record that we can't answer as we go along nor have the time to discuss and think them out as we sit here right now. My first concern is why staff hasn't addressed these with you before the meeting today. I would hope they would have, and that would have resolved many of the issues, ifthere've practically and realistic to apply. MR. LEWIS: To defend staff, if! may, Commissioner. As it relates to the noise ordinance, not the outdoor seating ordinance, we received the latest draft, the current rendition that we're reviewing today on July 9th, so -- and they -- it was just finalized on July 8th, so I don't attribute any issue to staff. We're here today because I think the correct decision was made to delay this a little bit before we go before the board to allow the planning commission to have a look at this, to vet this properly, allow some public input so we can get a good ordinance that balances those Page 112 July 17,2008 interests. So we received it on the 9th, and we have been working with our consultant, working with the client, and yesterday we prepared the responses. So staff, in fairness to staff, has not had a lot of time to review those. So in that spirit I wouldn't -- CHAIRMAN STRAIN: Okay, first of all, a bad ordinance helps nobody. But don't want it to seem bad in one way or the other but it needs to be balanced. And I don't believe what we have today is as balanced as it could be. So our goal is to get a better ordinance and balance it. We're not going to accomplish that today. I have a concern that the expert that the county is utilizing for the noise, I believe, ma'am, if you don't mind coming to the microphone, you have to leave at what time today from this meeting? I know we're getting close to your -- MS. SCHOTT: About 12:30. CHAIRMAN STRAIN: Okay. Cherie, I know that we are gone way beyond the time we normally break for you to take a break. This commission normally takes a lunch time around now. We're going to have to come back and continue this. Do we want to take a break now and come back at 1 :OO? COMMISSIONER MURRAY: I'd be in favor of continuing. CHAIRMAN STRAIN: Mr. Murray, you want to get to the microphone so she can record what you're saying. COMMISSIONER MURRAY: Pleasure to do so. I'd rather continue on the basis at least we achieve something, I would think, before the lady can leave. CHAIRMAN STRAIN: Well, before we go that far, Cherie, that would mean at least another half hour typing away without a break. Would you rather have a break right now? Mr. Schmitt? MR. SCHMITT: Can I recommend that you continue with the public speakers. It's obvious we're going to have to work with Mr. Page 113 July 17,2008 Lewis and this will have to come back. I think it's in the best interest of all to have this come back because there are questions, certainly, that we have taken over the last hour, hour and a half that need to be addressed in this ordinance. CHAIRMAN STRAIN: Actually, it's been two and a half hours. And six minutes. MR. SCHMITT: I think it's in the best interest of our consultant to hear the other speakers and then we can decide where we're going to go with this. Because I'm pretty sure you all will want this to come back. I think it's in the best interest for us to work with Mr. Lewis and answer his questions. We can deal with that without doing that publicly -- we can but certainly not consume your time. CHAIRMAN STRAIN: Mr. Schmitt, everything you just said is where I was logically going. My problem is time frames, we have both Kady across the hall and Cherie, who have been working for two and a half hours steady without a break. That isn't fair to them. We have a specialist who needs to leave in 30 minutes. We need to give somebody a break here. Not us necessarily, but we certainly neat the staff to have a break from this tedious meeting. Mr. Vigliotti, are you going to contribute? COMMISSIONER VIGLIOTTI: I have a question. Can the specialist come back the next meeting? CHAIRMAN STRAIN: Before we go there, we've still got to listen to the public speakers. We have two more that haven't even spoken. We've got to finish with Mr. Lewis and we have to get into the open seating ordinance yet. We're not going to finish it in the next 30 minutes. Does this board feel comfortable that the remaining questions can be answered by code enforcement and maybe the expert that Mr. Lewis had, if we have some sound questions. And we can just go to lunch and come back and give everybody a break including staff? Mr. Schiffer. Page 114 .-----.-.. ".. July 17, 2008 COMMISSIONER SCHIFFER: The only thing I'd like to hear before the prior expert leaves is if Doug's expert has anything that's contradictory to what she said so she could rebut -- CHAIRMAN STRAIN: Without expending more time, we're not going to get there. So I think we need to make a decision. I just as soon we take a lunch break now. We're going to come back with this at another time. If the staff can schedule it when their expert's here to further define things that are brought up when we get back from lunch, I think that would be the best way to go. Anybody have any objection to that? (No response.) CHAIRMAN STRAIN: Okay, let's break for lunch, we'll come back at 1 :00. (Luncheon recess.) CHAIRMAN STRAIN: Welcome, everyone, back from our one-hour lunch. Cherie', you're all rejuvenated? But Mr. Lewis, that doesn't mean you need to talk very fast, you still can keep it so we can understand it. We have left off, Doug, talking about your issues. And I don't know if you had finished with everything you wanted to get into. I'd like to caveat the rest of your discussion, whatever that may be with the fact that it's apparent that you and staff have got some more work to do. And it's apparent that we're going to be asking staff to refine some things based on today's discussions. So rather than us getting into debating your points with staffs impression of what you want to do, I'd rather you all worked your differences out and when we're brought into it we get into the detail that's remaining. That might be a more effective way. But anyway, with that in mind, if you want to finish and proceed, you're more than welcome. MR. LEWIS: Actually, Commissioner, with that in mind, we can Page 115 July 17,2008 proceed with staff directly and address those there. CHAIRMAN STRAIN: I think that would be much more productive than us trying to understand what you're trying to say on the fly. It takes time to study your issues, you're pretty in-depth. I certainly appreciate your involvement. But I don't want to make a mistake and not do something that needs to be done either direction. Thank you, sir. And whoever is in charge of calling the next public speaker. MS. ISTENES: Steve Hart. CHAIRMAN STRAIN: Who's not here. MS. ISTENES: Okay, Michael McMahan. CHAIRMAN STRAIN: I think I know everybody in the audience, and I don't see anybody by that name here. MS. ISTENES: That's all I have. CHAIRMAN STRAIN: Okay. At this point I think we can summarize where we're at. And I'll start to tell everybody I think we've made a lot of effective comments on this proposed ordinance. I'd like to defer any discussion on the outside seating ordinance until we finish refining the noise ordinance to know if that one satisfies the conditions we may not even need to get into that outside seating ordinance. That will just take a lot more time. At this point I'd like to ask staff to comment on two things. The Board of County Commissioners, I believe, had directed some concerns of theirs to be implemented into the noise ordinance, and there seemed to be two of them that were concerned about. One was the type of noisy emitted by, let's use that as an example, Stevie Tomatoes. That was one issue I know involved two or more commISSIOners. And I know the other that is dear to my heart is the A TV issue and noise in Golden Gate Estates. And I know very clearly that the commissioners asked that to be looked at. I would like staff to make sure when they come back to us that . Page 116 July 17, 2008 they can report to us very carefully what the differences are in this new, revised ordinance that they will be bringing back hopefully in final form, and how that improves those two issues in response to the Board of County Commissioners' concerns. Now, I know I've just sprung it on you, so I'm not going to ask you to respond to that today. But I think it would be better if you prepare your response and bring it, because if it isn't asked here, it should be asked at the BCC level to assure they are getting what they are looking for. And that's the only other substance I have to offer to that issue. Ms. Caron? COMMISSIONER CARON: Yes, I'd just like to go a little further on that, because we know very specifically of other areas, including the Vanderbilt Beach area where we have some significant issues that need to be addressed as well. And it seems to me that the current dB levels have not been effective. And if we leave them the same, how are we addressing the noise issue? I think we, you know, reworded things and we've, you know, changed numbering systems and we've done all these things, but we haven't gotten down to the crux of the issue: Are we going to solve the problems we know are out there. So -- CHAIRMAN STRAIN: Okay. And I think that we're going to be looking forward to this returning in a month or two whenever you all can come back with a draft. If there's no other comments from the planning commission, I don't think there's a motion needed at this point other than to wait for staff to reschedule it. Mr. Schmitt? MR. SCHMITT: I would ask, though, would you give some guidance as to how you want to treat the accompanying item. And that was the outdoor seating ordinance. CHAIRMAN STRAIN: I just mentioned in my discussion that I Page 117 July 17,2008 think we'd be better off handling that if we -- when we see the final rewrite of the noise ordinance, if that doesn't address the outdoor seating ordinance, then we can get into the outdoor seating ordinance. But I have full confidence that the noise ordinance is going to address it. But I don't want to dismiss it too early if it may be needed because we can get things addressed through the noise ordinance. So that was my philosophy on it. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I wholeheartedly agree with that. There may not even be a need for it. MR. SCHMITT: Let me make sure you understand, because there -- I know that Doug Lewis had several issues with this ordinance. We have not made any further corrections with the outdoor seating ordinance because we've expressly devoted our time to the noise ordinance and kind of let this one lie. So if you want to proceed at a future meeting, knowing and understanding that we're not moving anything -- we're not doing anything further with what you have in your packet. Unless you kill something in the noise ordinance, then we'll have to go back and begin tweaking the outdoor seating ordinance. CHAIRMAN STRAIN: My thoughts were that we would leave the outdoor ordinance right now the way it is, not even get into a discussion on it until we know we need it -- MR. SCHMITT: You mean the outdoor seating ordinance. CHAIRMAN STRAIN: The outdoor seating ordinance. And I'm hoping that through staffs clarification of the noised ordinance and refinement based on everything they've heard today, we may decide at that last meeting the outdoor seating ordinance isn't even needed. And I'm hoping that that's the direction that staff takes and we can dismiss it completely and incorporate what we need to in the noise ordinance. Is that well enough with everybody? Because if it we can move on. Page 118 July 17,2008 Mr. Schiffer? COMMISSIONER SCHIFFER: I just want to say. One thing I'm not sure of is, from all the testimony this morning, is there anything that's been changed in the noise ordinance that would cause violations in the concerns we have with the outdoor seating ordinance? Because remember, you have to have a violation to have the seating ordinance have any bite. I do know we added the C. But is C what is going to get a club like the one out near Pebblebrook to become a violation, which it's not at violation now? What in this change would make it a violation? CHAIRMAN STRAIN: Well, that was the point of my question when I asked staff to make sure when they come back to us they show us how the noise ordinance rectifies the problems the BCC asked them to modify, to rectify in the first place. And so I think that's where you'll get your answer. And if we don't, and the answer isn't there, then we still have to deal with an outdoor seating ordinance. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: That's the only way I can think of approaching it at this point today, unless anybody else has another idea. COMMISSIONER SCHIFFER: My concern is why it came back without -- so I guess the answer is from staff is that this new proposed ordinance does not cure that -- MR. SCHMITT: Let me just fundamentally make sure I understand. The noise ordinance is strictly an ordinance based on an assessment of whether the noise exceeds the allowable level, then it can be prosecuted through a code enforcement action. The outdoor seating ordinance was, as you well know, was a permit type of ordinance. You applied for a permit and if the applicant or the establishment was deemed to be in violation of that permit, then there was an avenue to go after that establishment through a notice and then through some type of public hearing or withdrawal of that Page 119 July 17, 2008 authority, quote, to use -- to allow for outdoor seating. So it's a little bit different type of activity. COMMISSIONER SCHIFFER: But one thing's important is they had to have a violation of the noise ordinance to be denied the seating. So the teeth has got to be in the noise ordinance. And I think Mark's right, once you put teeth in the noise ordinance, you don't need the other ordinance. So our problem is a toothless noise ordinance, which I guess this still is? I mean, is that -- MR. SCHMITT: The one was more of an issue dealing in front of the Board of County Commissioners or the Board of Zoning Appeals. I'm not sure which one it was. I can't recall. COMMISSIONER SCHIFFER: But you have to have a violation of the noise ordinance, so -- CHAIRMAN STRAIN: But Brad, let's get to a point today where we know we either can stop or continue. I'm suggesting we not handle any further discussion of the outdoor seating ordinance today pending further evolution of the noise ordinance at another hearing. COMMISSIONER SCHIFFER: And I like that. CHAIRMAN STRAIN: Okay, then let's just leave it there and we can defer this discussion until we come back. And if we have to get into the subject you're leading to, we can handle it at that time rather than kick it around twice. MR. SCHMITT: Can I have a motion then that we continue this? And somehow I'm going to have to define the parameters to continue. Because this was advertised. It was an advertised public hearing to review both the -- yeah, it can't be no more than five weeks -- but both the noise ordinance and the outdoor seating ordinance. It was a combined ad. And rather than going through the expense of another ad, we're going to just have to continue this and it will be continued to a date yet Page 120 July 17,2008 to be announced, but it will be no more than five weeks. I'll look at my calendar and see what date we can make it. COMMISSIONER MURRAY: I'll move that motion. COMMISSIONER VIGLIOTTI: I'll second it. CHAIRMAN STRAIN: Mr. Murray made a motion to continue to a future date to be determined. This particular review, no? MR. KLATZKOW: You need a date certain if they're trying to save the advertising costs. CHAIRMAN STRAIN: Okay. Well, we'll hold off until we get a date certain. If you guys can hold off on your motion 'til then, is that okay? Mr. Lewis, did you want to contribute something that won't further cause us confusion? MR. LEWIS: I just wanted to contribute, Commissioner, that the noise ordinance contains a requirement currently that you need to permit any activity in terms of live music or amplified sound. And there's a permit requirement there. And so if the public purpose behind the outdoor seating ordinance is to deal with the noise that's generated from that, then in answer to your question, that is essentially what we are looking to do in the noise ordinance. There is an annual permit requirement. And that's in addition to the sound level limits that are established in the ordinance. I just wanted to clarify that. MR. SCHMITT: That's exactly right. One is a permit for amplified sound, the other was a permit for outdoor seating. CHAIRMAN STRAIN: Well, I think a lot of it's going to fall on the back of whether or not this ordinance, the noise ordinance will meet the intention of the BCC. If it does and we feel it does and we can recommend that, then that may be the outcome that comes out of the next meeting. Mr. Schmitt? MR. SCHMITT: I would ask that you consider continuing this to Page 121 July 17,2008 the 21 st of August, and that in doing so direct staff to work with Mr. Lewis to develop and resolve some of Mr. Lewis' issues so that we can bring back to you the ordinance again for your review. CHAIRMAN STRAIN: Okay, I think that's our regular meeting date. So that works. Mr. Murray, you made a motion to continue -- COMMISSIONER MURRAY: Yes, that's fine. And ifit needs to be amplified, I will. But I would take Mr. Schmitt's comments and include them into the motion. CHAIRMAN STRAIN: The motion was made and seconded by Mr. Vigliotti to continue this meeting to August 21 st. Discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. Motion carries 6-0. Thank you. And now if you think the last subject was boring and tedious, wait till you see the next one. Item #11 NEW BUSINESS - ANNUAL UPDATE AND INVENTORY REPORT (AUIR)-SEASONAL POPULATION STUDY AND OTHER DISCUSSION ITEMS The next item up today is a new business item, and it's for the annual update and inventory report for the seasonal population study. Page 122 July 17,2008 statistics a month or two ago and asked to recommend or at least consider a resolution that the commissioners had requested concerning how the population statistics got to be where they're at. We kicked it around for a while, decided we needed more information. And Mr. Bosi has been working hard at it. Went to the BCC and came back with a date for us to have another go at it. So here we are. And there's been a lot of data distributed. And Mr. Bosi, I'll turn it over to you. MR. BOSI: Thank you, Chairman, fellow -- or Commissioners. Good afternoon. My name is Mike Bosi with Comprehensive Planning. I'm also joined by Phil Gramatges' staff from public utilities and representatives from the Sheriffs Department as well, if there's specific questions when we get into that area. As the Commissioner had indicated, this was a study that was directed by the Board of County Commissioners on November 5th of last year during their hearing of the 2007 AUIR. Basically they said they wanted to know if each and every department within the AUIR that dealt with population experienced a 20 percent increase in demand within their -- within their systems to mirror the 20 percent seasonal increase that we've -- that this county has adopted as part of the EAR-based amendments as the seasonal population markup. We were before you April 1 ih, Provided the information. Provided the information in a way that the Planning Commission felt could have been repackaged in a little bit more presentable way. We're here today with that request. One of the specific requests from that meeting on April 17th was to bring back the demand numbers, bring it back on one sheet and bring it back in a manner that shows the average five highest months compared to the average five lowest months for a three-year period, the average six lowest months compared against the average six highest months for that three-year period, and then for a three-year average the difference between March and September. Page 123 July 17,2008 During the discussion on the 17th, those were the areas -- or were the manners that -- or the mannerisms for the information being presented that the planning commission felt would be the most representative of comparing the season to the non-season. Exhibit B, within the staff report that was provided to the planning commission members contained that -- that master sheet of demand. We have kicked this can down the road a number of miles. I'm not sure how far you would like me to go in items of further presentation. What I had envisioned was basically putting up the demand numbers, having -- and having discussions on each one of the areas. But also, I have to point out one of the other specific requests for the planning commission was to look at the level of service standard for potable water. As many of the members mayor may not know, on September-- not September but June 24th, public utilities was in front of the Board of County Commissioners specifically to modify the level of service standard for potable water, revising it down from 185 gallons per consumption per day to 170. And that was approved by the Board of County Commissioners on the 24th of June. So with that, I basically will open myself and the rest of the county staff to questions that the commission may have pertaining to the item. CHAIRMAN STRAIN: Well, in order for us to get to the questions, maybe we can go back to what the original duty was, as professed by the BCC. And that is to explain the 20 percent used as an increase over the base BEBR. Is that-- MR. BOSI: No, what the Board of County Commissioners asked, they said you have a 20 percent markup. Commissioner Coyle specifically articulated. He said he wasn't sure that each department, each division within the AUIR really experienced a 20 percent increase within the demands within their services. Page 124 July 17,2008 So he asked, he said have the advisory boards look at the demand numbers that we have and make a determination if that 20 percent increase in demand was being experienced by each one of the AUIR components. The question wasn't framed towards whether 20 percent was the appropriate number, the question was was the demand that each one of these departments were experiencing, were they mirroring what our adopted peak season population number was. So that was the question that came from the dais back in November that we've been trying to explore through our April meetings with the planning commission and the productivity committee and brings us back here today. CHAIRMAN STRAIN: Okay, well, Mike, I think to understand it better, you're using a BEBR base number of some format. What BEBR number do we use now? MR. BOSI: BEBR medium. CHAIRMAN STRAIN: BEBR medium. On top of the BEBR medium, we've decided we have to go up 20 percent for a seasonal adjustment; is that right? MR. BOSI: Correct. CHAIRMAN STRAIN: The BEBR medium that's reflected in the numbers you have on the screen right now, and you're talking about the average lowest and highest month periods, and I know they came from other spreadsheets and you know I provided you with a spreadsheet that I laid out a lot of this data in a little bit different format. We're using in one case the difference between the March and September average for a three-year period, 31 percent. But how does that difference between March and September reflect the BEBR number, meaning I don't think the high of March or the low of September is the BEBR base number that we're starting with to add 20 percent to. Page 125 July 17, 2008 MR. BOSI: The BEBR number tries not to calculate what our seasonal population is. CHAIRMAN STRAIN: I know, but the 20 percent we add is to the BEBR base number; is that right? MR. BOSI: Correct. CHAIRMAN STRAIN: So the September number that we use for the base difference in the very first one, there you use a level of service of 185 GPCD. I know that's 170 now, but let's not get into that. That's not at issue as much as the way you've got the numbers. The difference between the March and September average for a three-year period isn't really relative to what we're looking for. We should be looking for the difference between the March and the median BEBR number that was for September, right? MR. BOSI: And what we are assuming as staff is September is the most representative month to reflect what our permanent population is. CHAIRMAN STRAIN: Okay, but you're saying that the BEBR median number for Collier County is whatever the lowest month of the year is. MR. BOSI: It's the number -- it's the number of permanent residents assigned to this county. And we believe September is the month where, with school being in, with all the things associated with the beginning of fall, is the time that most of or if not all of our permanent population is occupying their structures, demanding services upon the infrastructure of this county at the same time, towards where we do not have a very strong seasonal influx. Therefore, September represents the closest to our pure or our truest permanent population base. CHAIRMAN STRAIN: Well, September represents for the most part the lowest percentage in Collier County at the time. We have the lowest population generally in September and the highest in March. So when you look at the difference between those two Page 126 July 17,2008 spectrums, you're going to get the worst case scenario, which in your case here is showing 31 percent. What I'm wondering, in order address the Commission's concern or the 20 percent above the medium BEBR, is September considered -- the September base number the medium BEBR population? How do you derive that? MR. BOSI: If you remember the April 17th comments -- CHAIRMAN STRAIN: I don't, so let's start over. MR. BOSI: The April 17th comments, that assertion was made to August. They said that August was a very bad representation because of vacations, school hasn't come in. And therefore, the planning commission -- this body said September they felt was a more appropriate month to represent the permanent population. CHAIRMAN STRAIN: Right, but I'm asking a different question now. MR. BOSI: The different question I think would be addressed not by focusing upon your September to March comparison. I think the more appropriate way to address whether 20 percent is an appropriate -- is the appropriate mark is to look at your five highest months average versus your five lowest months average. I think it takes a lot of the unknowns out of how many people are here at one particular month and it's basically saying what's the lowest demand on a regular basis compared with the highest demand on the regular basis is. Whatever that spread is, compare to that to 20 percent. And therefore, you have a much more valid and accurate and encompassing, because when you take the average of the five months it takes out a lot ofthose hills and valleys and unique circumstances that could be associated with each individual month. CHAIRMAN STRAIN: How's he doing for speed? Okay. You're moving fast, and I just want to make sure we're okay with Cherie' . I don't disagree that the first one you've cited here is probably Page 127 July 17,2008 not the one to use. So we're on the same page. But I'm trying to understand how to get to the question that was asked. And maybe the fact that I can't understand it doesn't mean a lot but I'm having a hard time grasping how the BEBR medium is determined to be whatever the lowest month, or in this case September, because it's the most extreme or lowest month of the year. How is that determined to be the BEBR medium call-out of that base that you now add 20 percent to? MR. BOSI: I would say that's probably arrived upon by anecdotal determination that -- because we look at the school population returning back, and the base that that creates within your permanent population to be here. Also, one of the great difficulties of what you're trying to say is how is it that we track the travel patterns of our permanent population and how could we make the most accurate determination as to what month is the most representative of when that permanent population is here at its fullest. There is no scientific or empirical data that we have collected that would lead us to make that determination. We basically -- we utilized, like I said, anecdotal to say logically because of the way the vacation patterns happen within this country, and with the start of the school year, that September is the logical month to make the determination that this is a representation of our permanent population. Is that the absolute scientific way to do it? No, because I had suggested August was a very good reflection of the permanent population in April and this body said that no, that wasn't correct, that maybe we should push it out towards September. So I have no way to be able to provide you empirical evidence to say absolutely September is the month that most represents the permanent population as prescribed by BEBR medium. CHAIRMAN STRAIN: Before I go on and try to sort out what Page 128 July 17,2008 my confusion is, maybe others can help me unconfuse myself. Does anybody else have any questions on this? COMMISSIONER SCHIFFER: I'm confused. I did a study, I'm not sure I agree with Mike's conclusions, but my study is kind of borderline freakonomics (sic). Mike, do you have that paper I gave you? MR. BOSI: Yes. CHAIRMAN STRAIN: Freakonomics? COMMISSIONER SCHIFFER: What I did is I took the three things that I think kind of tell us what the population's doing is portable -- potable water, wastewater and solid waste. And then what I did is, you know, the top is the BEBR population, which I put constant. And then I used our level of service to see what our population was. Now, I know that's not the population, but it does show the fluctuation. So even though you can't see the whole thing, you would see that to me our least population is June and July and our largest population is definitely March. And it's just a way to try to grab hold of the numbers. I mean, what else can you do? CHAIRMAN STRAIN: Well, Brad, that's kind of what I've been trying to figure out is what else can we do besides to take it on faith alone that there's a 20 percent increase in the season. The BCC asked for justification of the 20 percent. I can't figure out where the base is that we use -- how we get to the base in which we add the 20 percent to. We say we use the BEBR medium. What is the BEBR medium for the month of September and what is 20 percent above that, and that is where we should be for seasonal, for March, right? COMMISSIONER SCHIFFER: And I say that based on this the month -- and you don't show it in the way you have it on the screen is that September we're actually below our BEBR population. And Mike, one quick question is that you give potable water as a Page 129 July 17,2008 million gallons per day, but that's really per month, correct? MR. BOSI: I'm sorry, it is per month. COMMISSIONER SCHIFFER: Yeah, because otherwise we'd be using 2500 gallons per population. MR. BOSI: One thing I would point out to the planning commission is December 20th, 2006, as part of the EAR-based amendments, this body was apprised of the 20 percent seasonal population and how comprehensive planning had arrived upon that number. And I believe -- and Mr. Cohen presented that to this body. And I believe that this body was in agreement at that time that 20 percent was an appropriate number, based upon the empirical, the empirical evidence and data that was supplied as part of that memo process and as part of the EAR-based amendment process. Once again, the Board of County Commissioners did not ask whether 20 percent was a valid number. The Board of County Commissioners asked the advisory boards was 20 percent the type of demand increases that each and every department was experiencing between the non-season to the season. I think -- and one of the things I will say about the 20 percent in our new population methodology that was adopted during the EAR-based amendment, it has a specific provision, it says every year annually it's at the discretion of the advisory boards and ultimately the Board of County Commissioners that if they feel that they need to relook at that 20 percent number and reexamine that number, that on an annual basis that opportunity is provided for. CHAIRMAN STRAIN: Brad, in the numbers you put on the screen or that they put on the screen for you, the BEBR mid-permanent population, 333, and I think it's 858 or whatever it is, you ran that constant throughout the year. So at the end of that line I'm assuming is a total for the year -- COMMISSIONER SCHIFFER: It would be the same number __ in other words, what I did is I took the BEBR -- and what we're Page 130 July 17,2008 looking at is the fluctuation from the BEBR, which is essentially our baseline. And all's I just wanted to do by calculating those three things again, the potable water, waste and solid waste, which is I think evidence of human occupancy, I just came up with how they -- those three things fluctuated and then developed the population based on that. You know, it does say that March is our big time, but I don't think it's a -- I'm only getting about a 15 percent increase in March only. CHAIRMAN STRAIN: One of the statements you just said, I'd like to point out. You said the potable water and wastewater are good estimates of the permanent population or the population using it? See, therein to me lies the biggest flaw of our system. If you look at the wastewater, which is really people flushing toilets using drains, when someone flushes a toilet most likely you know they're here to do it because toilets don't automatically flush. And your increase is about 8.51 percent but yet the water used on the same basis is almost 22 percent increase, which water use is based a lot on electronic irrigation systems that go off while people are up north. So the potable water really being used for the county, I'm not sure if we even know what it is. All we know is we're wasting a ton of water versus the amount of wastewater we produce, which should be much closer to the amount of potable water that we use if it's really used for potable purposes, not for lawn services. And I'm getting tired of paying for everybody's irrigation water by seeing these facilities expand. Go ahead Mr. Midney. COMMISSIONER MIDNEY: Yeah, just to agree. I mean, if it's really potable water, it's going to be almost identical what you use and what ends up in the wastewater plant. CHAIRMAN STRAIN: Therein lies-- COMMISSIONER SCHIFFER: No. Page 131 July 17,2008 CHAIRMAN STRAIN: Well, even if it's -- COMMISSIONER MIDNEY: The rest is irrigation. What else is there? COMMISSIONER SCHIFFER: Leaks -- COMMISSIONER MURRAY: Evaporation. COMMISSIONER SCHIFFER: -- you know. You're getting water into your waste system from leaks. You know, it's not a perfect system, but I mean, the only thing that we can study is the fluctuation. That's all this study does is just study how it fluctuates and from that try to derive activity of people. I mean, none of us are -- maybe we should get some economist to come in here and really do the study. I mean, the only thing that I derive from my study is I do verify that March is the highest population. And it's about 15 percent more for that month only. And June and July are really the times when people are gone. And I think we can see that in the restaurants, we don't need to see this study, that everybody is kind of out of town now. CHAIRMAN STRAIN: But what happens is the increase in population percentage is based on the calculations by the potable water demand. And if those calculations are flawed, and every department in the county raises and levels itself up to that 20 percent increase to determine its needed facilities over the next number of years to deal with seasonal population, but it's a number that's based on irrigation number, not potable water, and the people that use it are really pushing little buttons on an irrigation timer, are we really getting a true snapshot of the seasonal population? And that's where my concern comes m. COMMISSIONER SCHIFFER: That's why I mixed the three, between water supply, water waste and solid waste, I figured somewhere that's -- you know, I just averaged those together. But that's a clue of human activity. CHAIRMAN STRAIN: There's a lot of numbers on the screen. Page 132 July 17,2008 Where's your percentages for monthly totals? COMMISSIONER SCHIFFER: If you look at the variation from the average is what I'm plotting. Another interesting, Mark, something you've always claimed, is that our level of services are high. If you look at -- just take October, for example, a million gallons per month. And again, it's 185, shows that there's only 150,000 people in town, which we know is not true. But anyway, I think Mike, slide that a little bit over so we can -- and I don't expect, Mark -- I'll give you a copy of this, you can take a look at it. CHAIRMAN STRAIN: I'd like to see the percentages so we know what increase occurred over the seasonal time -- COMMISSIONER SCHIFFER: Essentially what I did is I averaged the usage. And then I have above average or below average using those on the upper line just to try to come up with what our population is in different months. Mike, you can, you know, send that out if you want. Make a pdf and send it. CHAIRMAN STRAIN: No, I don't want a pdf, you can't manipulate numbers in a pdf. COMMISSIONER SCHIFFER: I'll send Mike the Excel and you can manipulate it. CHAIRMAN STRAIN: Thank you. I'd like to convert it to percentages just to see what it comes out to and try to then do a five high and five low. And Mike, I had sent you a similar -- I sent you an analysis as well providing all the percentages on a five high, five low and a six high, six low average month and all that stuff. I came out to around the 20 percent for potable water. In fact, under a five high, five low my numbers came out to 19.09 percent if you take the five low and the five highest months and then look at their average percentage. And for seasonal it would -- I got 19.09. Page 133 July 17, 2008 But for the rest ofthe departments, it varied, just as the Commissioners suspected. But based on what I've read that staff supplied, there isn't anything we can do about that because DCA is insisting whatever we use for one we've got to use for all; is that correct? MR. COHEN: For the record, Randy Cohen, Comprehensive Planning Department Director. When it comes to your population and your seasonal population adjustment, you have what DCA regulates, where you have to use a constant. Those items would be water, sewer, solid waste, parks and recreation, and transportation, which are your Category A facilities. Within your Category B facilities, it's another story . You have the ability to make adjustments with respect to either population or level of service. My suggestion would be -- because obviously you're going to -- if you see different changes in percentages with respect to all those different facilities, it's easier to adjust levels of service rather than having five or six different population methodologies for each particular one. So you've got the ones that are regulated and the ones that are not. So right now you've got a policy that exists in the Comprehensive Plan that says we're using BEBR medium, which DCA based on the amount of growth that we were having in the past couple of years. The seasonal population adjustment was based on starting with the census vacancy rates, looking at the vacancy rates for seasonal residences within the both the water district and the sewer district. And also, we factored out when we looked at the census stuff the City of Naples or Marco Island because it was driving the numbers too high. And that was the starting point. When we looked at seasonal originally, we looked at it from the perspective that it could fall anywhere probably between 17 to 20 percent. And the board's direction was to err on the side of caution with respect to water and sewer because of what transpired in 2002. Page 134 July 17,2008 And that's why we went with the 20 percent. CHAIRMAN STRAIN: Well, based on the review that I did, and I took all the numbers that staff had provided in the previous meeting, and I ran those in a tabulation form for percentages on a monthly basis for each category. I don't see a reason to doubt that the 20 percent used is one to change at this point. So if that was part of the criteria, I have yet to have been able to find that. Not saying I haven't got all my questions answered, I just don't know how to get the answers to the other questions that I have. As far as the other facilities, we have levels of service established for those, and if we feel they need to be changed, I guess when we get into the AUIR, that's when we look at that. I certainly can't sit here today and dictate that -- I mean, I think it's odd that most of the necessities aren't in Category A. You know, nothing functions without law enforcement and jails, yet they're all Category B, which to me is backwards. Some of the things like parks, which certainly isn't essential, we can live without, but we can't live without proper protection. So I wish it wasn't like that but I don't know how to change it based on what staffs been telling us. MR. COHEN: Well, you're capable of adjusting your level of services within the Category A's, okay, and that's the leverage point that you do have if you see there's some type of discrepancy within the demand that Mike was talking about earlier. That's the rationale for reducing or increasing level of service if demand is either higher or lower. And when you have a situation where you have some life, health, safety, welfare issues with water and sewer and they seem to be right about the 20 percent and something else may not, then maybe that's the place where you want to make your adjustments in level of service to accommodate those differences. CHAIRMAN STRAIN: Okay, does anybody else have any Page 135 July 17,2008 questions on this before we -- COMMISSIONER SCHIFFER: Well, just one. Randy, is there a way that we can do the population per month or it has to be a seasonal, non-seasonal? MR. COHEN: Well, we're stuck with a methodology ofa permanent population that BEBR provides us with. Seasonal, they ask for one specific seasonal percentage rate that we use, and that's what we provided to them. And they said that's up to us to provide that to them but we needed to provide them with data and analysis that substantiated that. And that's what the census data and the percentages in the water and sewer district and the other numbers did for them. And it showed a broad range, you know, within that 17 to 20 percent area. The hardest part in dealing with seasonal population is everybody is not here at the same time. And the question that we had was how do you factor it. And what we did is we did an 85 percent assumption that they were here -- 85 percent of the people were here anyone given time. That assumption may be a little bit on the high side. That possibility does exist. And we realize that. That's why we always have to look at the demand numbers and all the different facilities to see what they are actually approaching. COMMISSIONER SCHIFFER: So the answer is yes, it has to be -- we deal with two numbers and we design our facilities for the high MR. COHEN: Yeah, and if you think the 20 percent is too high, over time when you're looking at the numbers then and it warrants lowering it, then you would make that adjustment based on some type of trend analysis that you see. MR. SCHMITT: I want to correct though, Brad, that we don't design for the high. I mean, on the AUIR we measure towards the high, but when you get into actual application for budgeting or for Page 136 July 17,2008 designing for a facility, of course Phil can talk about that, but public utilities will use other data to do that. But from a standpoint oflooking at it over a long period of time as the AUIR does to measure whether we can sustain and maintain the level of growth like we had in the past -- right now of course we're not dealing with that. But we do those -- it's just one population and then the level of service so that we can -- whether we issue and approve, you know, permits or development orders. So it's kind of -- all this is is just nothing more than just a snapshot in time to measure where we are at a given time every year. Now, of course some of that may be used for budgeting aspects and for other things, and of course as Mr. Strain said, we'll look at level of service. And if level of service -- and a great example here would be the difference between potable water and wastewater, if we need to ratchet down a level of service, then that's what comes out of the AUIR. CHAIRMAN STRAIN: It notice in some of the LDC amendments coming up, there are issues involving changes to the utilities. Irrigation, there's a discussion in there about metering and things like that. I think we have an opportunity in those to suggest that -- and I think the word in the Land Development Code changes was that they may be -- they may utilize irrigation meters. Maybe that all new development shall utilize irrigation meters. And we can separate the potable water that goes to irrigation out of the potable water that's used by people. Maybe through that some kind of future methodology there we can lower that number. By what staff has provided us, I haven't found a way to do that. But I still have to go back to my original question. Mr. Schiffer's spreadsheet across the top utilized a straight population formula, 3333, 3333, then he added I think percentages to it to get to your seasonal. And if -- what I'm trying to get at is how do you know in the lowest Page 137 July 17,2008 month of the year that you have 3333 there as shown on that paper that you had here that Brad Schiffer put on there? Maybe you could put that one back. COMMISSIONER SCHIFFER: Mark, I can answer that. That's what BEBR says is our permanent population, that's people who live here that are not seasonal. So the way this study goes, the way I'm doing it is that there are times like this month that a lot of people are out of town. According to my little study, I think there's 53,000 people out of town right now. So I deduct that from the permanent. When the seasonal people come back in, and I'm detecting them by the use of those three elements, I start add adding on top of the BEBR. To me the perfect month is October-November, it appears that that's when we're closest to BEBR in my study. And this study, obviously, I mean, let's not bank on that but -- I think what this study does is just works it backwards. We know what the gallons are being used in utilities, and then I just used that number and work it backwards. MR. BOSI: Following that train of thought, what you'd be determining is the three year difference between March and September actually is really underestimating the crease in demand that are experienced by all these facilities. So these numbers that are shown on the three year average comparisons between September and March would actually be less than the true increase in demand that these systems would experience from a non-season to a seasonal basis. COMMISSIONER SCHIFFER: I'm not sure. MR. BOSI: Well, because you're saying in September we have less than our permanent population. COMMISSIONER SCHIFFER: I say we have slightly less still in September, yes. That's not our biggest population. But again, you know, we don't have a constant population. CHAIRMAN STRAIN: And if you take your 333,858 or Page 138 July 17,2008 whatever the number is let's say for October, yet the permanent water surface is significantly less based on the numbers that the water department is basing it's per capita annual average daily demand on, how do we explain that? COMMISSIONER SCHIFFER: Okay, looking at this chart, Mark -- CHAIRMAN STRAIN: Well, I'm looking at a couple different charts. I'm looking at the Collier County Public Utilities historical water demand data chart, and for round numbers, the year 2005 at 150,000 permanent residences. At that period of time, now that permanent residences I'm assuming is what they said was permanent on an average throughout the year. So all year long at any particular time, we had an average of 150,000 permanent residents in this home. The population as it relates to that permanent residents then is on the chart you used at 333, 858. Would that be an exception? COMMISSIONER SCHIFFER: It's not exactly what I'm doing here. What I did is I just used that as our permanent base just to see how we go up and down from that. That's essentially -- you know. And then these other numbers are essentially averaging, whether we go up or down below average use. It's to find out where people -- I'm just trying to derive a population based on, again, those three elements. What those three elements give me is the number that I adjust the population with. In other words, if those elements are low then the population's below it. If they get really high, it's above it. CHAIRMAN STRAIN: Well, Michael, today if we were to accept your five highest, five lowest as the standard, with 20 percent being a justifiable number as a result of that, what does that mean from here forward? MR. BOSI: You could, one, offer recommendations that, based upon the restrictions that are placed on upon this county from the State Page 139 July 17,2008 of Florida in terms of utilizing only a 20 percent population constant figure for your seasonal increase, that is those facilities that have a lower demand number, then that 20 percent during the upcoming AUIR process, a revised level of service will be recommended based upon what that difference is between the 20 percent and the five lowest compared to five highest in a corresponding reduction to the level of service. CHAIRMAN STRAIN: Well, I thought you might say that. My concern there is, Michael, until we hear the arguments from each department as to why their needs are, I would hate to set a pattern of discounting them before we hear them through the AUIR process. My biggest concern there is law enforcement. It's easy by these numbers to say well, heck, law enforcement even had a negative number. Why are we doing anything but increasing them more than 5 percent a year. I wholeheartedly disagree with that. MR. BOSI: Well, and you're 100 percent correct. I just had a meeting with the representatives from the Sheriffs Department and they provided me a tremendous amount of information that doesn't show up in the numbers in terms of how they -- their operating modes and the number of programs that they adopt during the non-seasonal. And the initiatives that are taken on by the Sheriffs Department really betrays the numbers in terms of saying that it's a flat -- it's just a flat occurrence. CHAIRMAN STRAIN: I would rather not send a signal to the BCC that we think we can just start reducing numbers based on this study. I think the only signal this study tells me is at this point I can't find an argument with using the 20 percent above the population Increase. I'm not saying that's a done deal, but from -- at this point I can't see why we would need to change that. Everything you've produced correlates pretty well to that. We haven't got a separation of potable versus non-potable use of water, meaning irrigation purposes. I think Page 140 July 17,2008 that's a huge flaw in the system. But I think we've got some upcoming changes in the LDC that can help change that. And maybe by the time the AUIR comes through, we can see ifthere's a way that utilities has maybe separately accounted for the meters that are actually installed and using irrigation water to take that number off the population, off the total consumptive use number. But at this point I don't know how else to change it. I'm -- so I've MR. BOSI: And part of the process, this isn't going to go before the Board of County Commissioners until they hear the AUIR in November. When I apprised the board of what the next step was coming back to the planning commission, I specifically provided them the instruction that whatever would come out of this meeting would be incorporated within the AUIR when the productivity committee and the planning commission hears it on October 22nd, 23rd, and 24th. And then whatever recommendations come out from those meetings, this meeting will all be packaged in the final A UIR workshop on November 5th. CHAIRMAN STRAIN: The other thing that correlates to the population increase is proposed through the potable water. The southwest regional passenger increases, the highest is in March, and it's 13 percent above the norm. The tourist tax collections are the highest in March, and they're 18 percent above the norm. And the hotel occupancies are highest in February, and they're 21 percent above the norm. That all kind of corresponds to a close to 20 percent in seasonal. At this point I am done debating it. I can't see where we can go with it any further at a meeting like this. So it's up to the rest of the panel now. If you guys have any comments? COMMISSIONER SCHIFFER: Just a question. Page 141 July 17,2008 CHAIRMAN STRAIN: I'm not satisfied with it but it's the best I think we can do today. Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: And I agree, it is the best, Mark. But one problem I had in studying. Law enforcement in the -- what you gave us, at least in those spreadsheets, is based on calls, correct? MR. BOSI: Those were the measurable that we were able to quantify to show the differences within the type of demand that they experience throughout the years. COMMISSIONER SCHIFFER: Then how do you equate that to the level of services, which is so many officers per thousand people? MR. BOSI: I could defer to the Sheriffs Department on that particular question. But you're asking how does the calls, the reactive calls for service compare to calls for service, how does that relate to the 1.96 officers per thousand? COMMISSIONER SCHIFFER: Right. MR. BOSI: To me it shows -- maybe I'm not understanding the root of the question, but to me it shows that 1.96 officers per thousand is able to maintain a level of policing effort throughout this community and -- but the way that that organization operates throughout the year, it goes from one mode to another mode. I'm not sure ifthere's a direct correlation between the calls for services and proactive calls for service compared to reactive service, how does that compare to 1.96 officers per thousand, that direct comparison. But really, what it shows is we have 1.96 officers per thousand. We feel that that provides an adequate level of policing service for us when we experience our highest month. And the non-seasonal months, when maybe the calls for service are not as high, we're going out and we're taking our -- we're starting our own initiatives to try to eliminate some of the other elements that maybe we couldn't get to during the season. So that's really only how it relates, but it doesn't particularly build to the 1.96, it just shows how Page 142 July 17,2008 they utilize that 1.96. COMMISSIONER SCHIFFER: And it happens -- I'm not picking on it at all -- it happens in EMS, it happens in parks. We have visits yet we have parks based on population. So is there any way law enforcement can sayan officer should make "X" number of calls a month or something, or is there any data like that? MR. BOSI: That, I would have to defer to the law enforcement staff. MR. BLOOM: For the record, Jim Bloom, Chief of Operations, Mr. Chairman, board members. A couple of things for the record, right off the top. Sheriff Hunter has never bought into a solid number per se per population. That depends on the uniqueness of each community, in his philosophical approach, as far as the needs and how it changes in years. To get into a little bit about calls for service and the consistency that you see across the annual review or analysis of it, it's dependent on a strategic and operational purview or philosophy that the Sheriff and the agency has adopted over the years, and that's dependent on the needs of the community. As you see during those peak times of the year, obviously we're going to be more reactive, we're going to receive more calls for demands or needs that come across. As that goes up, our ability to be proactive in certain areas, such as sexual offender predator checks; Showcat, JAM, JAR, which is our juvenile offenders, follow up on those individuals; traffic initiatives; probation checks; citizen contacts; I could go on and on and on. Those numbers are correlated. And as you saw from the analysis it's like a mirror. As we get busier and busier in peak season with reactive calls for service that take more time, more follow-up of our officers on the street, our ability to be more proactive in those areas decreases. Now, as of March when we peak at that time, then we start to Page 143 July 17,2008 allow over the next six months more proactive effort in the needs of the areas that I just discussed. And that's what keeps us maintained at somewhat of a consistent level throughout the year. COMMISSIONER SCHIFFER: Right. And the point being that your calls, it's difficult to base your calls on population, which what you introduced it. So the fact that we come up with a population, we have a number, 1.96, really isn't all that relevant to you. You have to do what you have to do. MR. BLOOM: The Sheriff being the chief law enforcement officer of the county has to justify his budget, as you know, annually, and the needs of the community. That varies from year to year. And we sit down and we actually every two weeks as a command staff, we assess our crime and what our needs are and our flexible operations, where we divert manpower and our needs. And so to answer your question, yes, we don't stick to one number. COMMISSIONER SCHIFFER: Right. I mean, for example, this could be Gotham City and you'd need a lot more officers per thousand than -- MR. BLOOM: Absolutely. COMMISSIONER SCHIFFER: Okay, thank you. CHAIRMAN STRAIN: No, Batman would be there, what are you talking about. COMMISSIONER SCHIFFER: That's true. I forgot about that. And it happens in other districts. The reason I being it up, Mark, is that there are a lot of things that just really aren't population driven. We may think we are, but they're not. MR. BLOOM: IfI could say something else, too. Some of the things that we do that are required and to the benefit of the community, during those lower peak population months, we do a lot of our training, our school violence training, our hurricane preparedness training, our community meetings. Those aren't necessarily captured under calls for service. Page 144 July 17,2008 We do, for example, this summer we've diverted a lot of our personnel from the youth relations, our schools, to the Boys and Girls Club, assisting there this summer. We're running a juvenile camp up in North Naples of approximately 130 children that are participating in that. And those are the types of things that our staffing allows us to do during maybe not necessarily our high peak population months but they're absolutely necessary for the quality of life that we're currently seeing here in Collier County. CHAIRMAN STRAIN: Thank you very much, sir. I appreciate it. I'm looking forward to the AUIR, because now we've got more insight into how the numbers were divulged or how the numbers came about, we'd have a more -- maybe have more input on them. MR. BOSI: This master sheet, would it provide beneficial to include this? Maybe also follow up with Commissioner Strain in terms of his own unique analysis that he had provided me and also follow up with Commissioner Schiffer? COMMISSIONER CARON: That would be good. MR. BOSI: Would that be -- because we're going to-- CHAIRMAN STRAIN: You can send it out, I think that would be fine for everybody to have. My numbers, actually, I had did them independently and before Mike had distributed his. They pretty much mirror yours, especially in the tally. I did all mine in percentages, I didn't get into the layout that you utilized. Brad hasn't fit percentages to his, and who knows what they might come out when they do. But if you send me that Excel spreadsheet I'll probably do that myself and I can return it to you. So I think as far as this whole process goes, I don't know what else we can do here today other than accept the 20 percent as the standard now and move forward with the AUIR under that basis and adjust accordingly as time goes on. I have one comment of Randy, since your in charge of comprehensive planning. And I know there's -- I believe, I shouldn't Page 145 July 17,2008 say know because it turns out I know very little in the end when I ask some of these questions. I believe there's an element in capital improvements A categories that allows for a mass transit element. And I noticed we haven't utilized that. And with everything going the way it is, could your department look at a consideration of possibly utilizing that element of the statutes? MR. COHEN: The mass transit element is an optional element under 163. And if it's directed so by the board after a recommendation by this planning commission, we would do that. But again, it is an optional element. CHAIRMAN STRAIN: Well, it might, by having us weigh in every year where we are with mass transit in this county, putting it as an element that could in some time be looking for other revenue sources, other streams for funding, it may actually get us to even a more viable mass transit system as each year goes on. By not saying about it at all, it's unknown, it just hangs out there, and occasionally we hear about the CAT system. But this might force it to come to the forefront. My God, with five bucks a gallon for diesel, which is what I'm almost paying right now, I'd sure like to see mass transit come a little stronger. MR. SCHMITT: It's discussed as part of the budget-- CHAIRMAN STRAIN: I know, but I'd rather see it as an element, that way it elevates it. But it's just my thought on it. Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I tend to agree, especially after the last meeting, the CAT came up with some kind of funding issues. And I think if we do it this way we could do it properly. MR. COHEN: There's pros and cons with putting it in the CIE and having the state regulate it, because then it gets into your budgetary process, and it has them regulating your budgetary process. So a lot of governments try to stay away from that, although they do put it in their CIP. Page 146 July 17,2008 CHAIRMAN STRAIN: Yeah, but see, if we can establish a level of service, regardless of what they do, we've established a level of service that we can then adjust our budget accordingly. They would -- so -- MR. COHEN: And I guess my point would be is if you're going to do it and trying to keep the state out of your business as much as possible, you would add it as a Category B facility and just regulate it locally. CHAIRMAN STRAIN: But there's disadvantages to a B facility in regards as to the way it can be -- the revenue streams available to fund it. From a perspective of this board, and I know that as a planning commission, we do have the right to ask staff to initiate studies. MR. COHEN: Definitely, sir. CHAIRMAN STRAIN: We can't take final action on them. But I'd, with the consensus of this board, like to see your department explore the possibility of that element entering into Collier County, either as a Category B or a Category A, providing us the upsides and downsides to good. MR. COHEN: Well, after we get through with the public schools facility element, we'll take that one on, sir. CHAIRMAN STRAIN: Mr. Midney? COMMISSIONER MIDNEY: Yeah, I would like to second that, especially with regard to Immokalee as sort of a bedroom town of working class people who have to drive long distances to work every day, it's very, very vital for us. CHAIRMAN STRAIN: Is that enough direction from you to-- MR. COHEN: Yes, sir. Would you like us to mirror what's required in Chapter 163 with respect to mass transit? MR. KLA TZKOW: Why don't you make a motion for directing staff to do that. CHAIRMAN STRAIN: Okay. Well, then I'd like to make a motion we direct staff to explore the feasibility of utilizing the mass Page 147 July 17,2008 transit element of Florida Statutes for either a Category A or Category B introduction to Collier County with the pros and cons under both scenanos -- MR. KLATZKOW: Do you want to give a date that they come back to you or not? CHAIRMAN STRAIN: Well, I don't want it lingering. And Randy, I'll turn to you before we peg a date. Do you have a date you'd be comfortable with? MR. SCHMITT: Our biggest challenge right now is finishing the public school facilities element, which -- CHAIRMAN STRAIN: Give that to Michelle. Let somebody else do this one. MR. COHEN: Michelle, if you're watching, Mark did not say that. MR. SCHMITT: We'll look at something for -- I don't know if we could do it this AUIR, but I'm sure the new director of the alternate modes of transportation will seize upon the opportunity. Ms. Michelle Arnold will look at this and we'll -- CHAIRMAN STRAIN: Can we expect it by the end of the year? MR. COHEN: Well, we started this year's AUIR process. What we would probably do is run it a little after that. So we should be able to get it done by December or January would be my guess. CHAIRMAN STRAIN: Let's set it for December where you can always come and we can suggest further time if it's warranted at the time. So the motion was made to initiate the study with results back by December. The second, Mr. Vigliotti -- who did the second? COMMISSIONER MURRAY: I did. CHAIRMAN STRAIN: Mr. Murray made the second. Discussion? All in favor signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. Page 148 July 17,2008 COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. Motion carries. Now motion for this next item, does it die with us or do you need a motion to go on with it or is it dead? MR. BOSI: There's no motion needed other than simply, I guess, to see -- we'll see you October 22nd. CHAIRMAN STRAIN: Will that be a fun day. Michael, you did a great job. Thank you for all the detail. It's a pleasure always dealing with you. MR. BOSI: Same with you, Commissioners. CHAIRMAN STRAIN: Next item of new business. Mr. Vigliotti, you had indicated you wanted to say something under new business? COMMISSIONER VIGLIOTTI: I was just reminded today that at times as a board we go off in tangents on things that are not in our purview and we should try to stay on track. That's about it. CHAIRMAN STRAIN: Well, Mr. Vigliotti, I notice that you omit for going off on tangents, but we'll let it go on that. COMMISSIONER VIGLIOTTI: Thank you. COMMISSIONER SCHIFFER: Mark, I have one thing. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: And it's just a frustration, and it's because like, for example, the floodplain meeting bounced. And trying to find time -- and this summer we have an awful lot of work. Every week we seem to have something. Is there a way, Joe, that -- I don't want to discuss this in terms of being professional, but why do dates jump like that? Because unfortunately -- and I did know it last week when I went back. That Page 149 July 17,2008 Every week we seem to have something. Is there a way, Joe, that -- I don't want to discuss this in terms of being professional, but why do dates jump like that? Because unfortunately -- and I did know it last week when I went back. That was the week I was going to take a vacation so that I wouldn't miss the flood and then the flood jumps into the vacation. Why are these dates jumping around? I know that flood thing's been languishing. I know over Christmas I worked on it a little bit myself. CHAIRMAN STRAIN: You want me to answer that so you can stay politically correct? The flood management planning committee has been meeting for years, or for a long period of time. They've had public meetings in a room where nobody attended. They get done with their report and they start to send it out and circulate it. And now certain professional elements of the community see it and decide that, oh, my God, it's all done wrong, we want to change the committee, we want more engineers put on the committee. DSAC didn't like it. So they're getting hit with a lot of changes that now they have to evaluate that may affect the document we end up reviewing. So rather than have us meet multiple times and reviewing a document over and over again, they're trying to absorb everything that's been thrown at them and come back with a more refined document. And Joe, I'll let you take from here. MR. SCHMITT: We had a meeting with many members, and though they're related, they are mutually exclusive. The ordinance is the implementing measures, some of which involve the floodplain management committee. That ordinance we briefed because it was part of the floodplain management plan, and I believe we briefed this committee at least twice, Robert had, and we briefed the Board of County Commissioners on what we were going to do. Page 150 July 17,2008 And as we began to put that into an ordinance, the ordinance -- and as you alluded to, has been around a while. Well, as Mr. Strain just said, as Mark said was, all ofa sudden members of the community, as usual, it becomes a reality, wow, they're really moving with this. We had a meeting with the industry. A lot of opposition to what is in that ordinance. We're going to meet again with the industry. We're gathering more input. I don't want to waste your time. We're working with members of the engineering community and homeowners associations, because it does place some financial burden on them as well. And we wanted to bring it to you, it would be a waste of your time. I apologize, we changed the date. But now we're into September. And I can tell you, I don't even know if that date will stay because of just the controversy involved in this ordinance. COMMISSIONER SCHIFFER: And Joe, you can understand the frustration. If you look at the calendar, we met every week except for a couple of weeks. Unfortunately even like last Wednesday's meeting which I thought was an LDC turned out to be just a nice meeting. The point is that out of respect to this board, I think it's important that we be able to make plans so that we don't have to miss meetings, especially meetings we have interest in. So we've met every week. Some of the meetings are useful. Some of the meetings, like in this case we're not going to meet next week, which would have been nice to know because we could have -- anyway, it's just a matter of-- MR. SCHMITT: I understand your frustration. I told Robert this was not ready for the planning commission, send an e-mail to the Chairman saying we notified him and said would you look at a different date, your August dates are just slammed. I didn't want to put anymore into August, and we're looking in September right now. We think we'll have some input from the industry. And I've also set up a Page 151 July 17,2008 meeting with the staff, with the utility staff, transportation staff, because some of this impacts them as well. And unfortunately it's just one of those things where as you get closer and closer to presenting this thing to bring it to the board, then all of a sudden people get interested in it. COMMISSIONER SCHIFFER: I understand that. We have the same problem in the private world, although the private are a little less forgiving. So what you're saying though is you may not have that date. So here's what's going to happen. I'll go find some other gap of time between meetings and then you're going to move into that just to drive me totally crazy with it -- MR. SCHMITT: Understand. My intent is to bring it to you on that date. But -- and I put the proviso but based on what happens over the next couple of weeks with meetings with the industry. We do have a public meeting here, and I don't have the calendar in front of me, that's in August, I think it's August 21st, where we're doing a public presentation for any members of the community who are interested in that ordinance, and there are members of the community, because it does impact homeowners associations and costs associated with it. The biggest stumbling block we've had with this ordinance is the annual or every three year certification of the stormwater systems and is there a cost, what cost, how much would that be, and is the cost worth the benefit. I mean, this is all to nothing -- well, it's two things. One of course is to create higher flood management standards, but the second is also to move our community from a CRS-7 to a CRS-6. COMMISSIONER SCHIFFER: And we know that from many moons ago we had that before us. Anyway, my point solely -- and maybe next year what we do, Mark is we set up a hiatus and just do it that way. CHAIRMAN STRAIN: No, I don't believe -- as long as we have a quorum, we should meet. Otherwise if you're thinking of what we're doing this summer, if it was backed up and put off until October, Page 152 July 17,2008 November, our meetings would be a nightmare. We would be here five, four, how many days a week trying to get through it. Brad, we're set up with a large board so we always can have a quorum. If you're going to have to miss a meeting or two or me or somebody, that's the way it is. We'll just get past it. I just don't want to get us into a problem where we're backed up so far that we can't do it efficiently. As it is now, to be honest with you, I didn't have enough time to read this population statistic data. I wish I had another week or two to do it. I didn't get enough time on it but we had a lot to be ready for. COMMISSIONER SCHIFFER: We're covering a lot of ground. I mean, that's -- CHAIRMAN STRAIN: But still, I don't want us piling up meetings so bad that we're all not able to get to the date. There's too many people relying on the fact this board looks at these things as closely as we do. And even ifthere's five of here we still need to look at them that closely. So there is an advantage to continually meeting if we all even can't make it. Just so you know, the 21st, I suggested changing it. It was my initiation. Only because if we heard it on the 21st, we'd be back here hearing it again in September anyway. We'd have two meetings on the same thing and not accomplish it. So this way we're going to accomplish the goal in one meeting because we would have ended up deferring most of the session the 21 st, had we. So -- with that, is there any other business we want to bring up? (No response.) CHAIRMAN STRAIN: Is there a motion to adjourn? COMMISSIONER VIGLIOTTI: So moved. CHAIRMAN STRAIN: Mr. Vigliotti. Is there a second? Come on, you guys. COMMISSIONER CARON: Second. CHAIRMAN STRAIN: Ms. Caron second. All in favor? Page 153 July 17,2008 COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. Motion carries 6-0. Thank you. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 2:07 p.m. 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 154