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CCPC Minutes 09/26/2008 LDC September 26, 2008 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida September 26, 2008 LET IT BE REMEMBERED, that the Collier County Planning Commission, in and for the County of Collier, having conducted business herein, met on this date at 8:30 a.m. in SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Mark Strain Donna Reed-Caron Tor Kolflat Paul Midney Bob Murray (Absent) Brad Schiffer Robert Vigliotti David J. Wolfley (Absent) ALSO PRESENT: Jeffrey Klatzkow, County Attorney Joseph Schmitt, CDES Director Ray Bellows, Zoning & Land Development Review Page 1 AGENDA COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 8:30 A.M., FRIDAY, SEPTEMBER 26, 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 PRESENT A TION 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. PLANNING COMMISSION ABSENCES 4. ADVERTISED PUBLIC HEARINGS A. Land Development Code (LDC) Amendments (continued from previous agenda) . 3.05.07 H. l.h.i. Preserve Uses Burgeson August 13 LDC pkt. p.197 . 3.05.07 H.1.h.ii. Stormwater in preserves Burgeson August 13 LDC pkt. p.201 . 3.06.04 Groundwater Protection Lenberger August 13 LDC pkt. p.205 . 4.08.07 SRA Designation Lenberger July 30 LDC pkt. p.209 . 8.06.03 [EAC] Powers and Duties Burgeson August 13 LDC pkt. p.2l1 . 10.02.06 Submittal Req.for Permits [VOB] Lenberger July 30 LDC pkt. p.237 . 4.07.02 G openspace credits for well sites Gramatges August 13 LDC pkt. p.1 . 5.05.12. public utility ancillary systems Gramatges August 13 LDC pkt. p. 3 . 2.03.04 Industrial Zoning in Immokalee DeRuntz August 13 LDC pkt. p.23 . 2.06.00 AHDB for lmmokalee Area Valera August 13 LDC pkt. p.49 . 4.02.03 Stds. For location of accessories Zoning staff August 13 LDC pkt. p.59 B. Land Development Code (LDC) Amendments (to be heard following items from previous agenda) . Sec. 3.04.03 listed plants Lenberger August 28 LDC packet p.141 . Sec. 3.05.07 A&B native vegetation definition Burgeson August 28 LDC packet p.165 . Sec. 10.02.02 EIS thresholds Lenberger August 28 LDC packet p. 219 . Sec. 3.05.07 H.l.d. conservation mechanisms Lenberger Sept. 18 LDC packet p.185 . Sec. 3.05.07 preserve management plans Lenberger Sept. 18 LDC packet p.193 . Sec. 3.05.05 bald eagle nests Sec. 1.04.04/9.03.07 post take plans Sec. 6.06.03 streetlights Sec. 10.02.04 preserve setbacks on plats Sec. 1.08.02 passive recreation . . . . 5. OLD BUSINESS 6. NEW BUSINESS 7. ADJOURN NEXT MEETING DATES CCPC Regular Meeting on Thursday, October 2, 2008 CCPC Regular Meeting on Thursday, October 16, 2008 Burgeson M ulhere Koehler/Casa. Chrzanowski Fabacher 2 Sept. 18 LDC packet p. 157 Sept. 18 LDC packet p.91 August 13 LDC packet p.l1l August 28 LDC packet p.133 Sept. 18 LDCpacket p.l40.1 September 26, 2008 CHAIRMAN STRAIN: Speakers are on, everyone. Good morning. Welcome to the continuing saga of the 2008 Cycle 1 Land Development Code amendments. God only help us if there's a Cycle 2, because the year's almost over. But please rise for Pledge of Allegiance. (Pledge of Allegiance was recited in unison.) CHAIRMAN STRAIN: Okay, this is the Land Development Code meeting that was continued, what, four different times, I think, to today. MS. F ABACHER: Mr. Chair, could I read that into the record? Susan asked me to. CHAIRMAN STRAIN: Read what into the record? MS. F ABACHER: What you're saying. CHAIRMAN STRAIN: I just said it. MS. FABACHER: All right. This is Cycle 1 - Item #2 ROLL CALL BY SECRETARY CHAIRMAN STRAIN: No, I was -- I know you want to make a presentation, an introduction, and that's fine. But let me get to the point where that can be done. Roll call by the secretary, please. COMMISSIONER CARON: Mr. Schiffer? COMMISSIONER SCHIFFER: I am here. COMMISSIONER CARON: Mr. Kolf1at? COMMISSIONER KOLFLAT: Here. COMMISSIONER CARON: Ms. Caron. Mr. Strain? CHAIRMAN STRAIN: Here. Page 2 September 26, 2008 COMMISSIONER CARON: And Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Present. COMMISSIONER CARON: So that means that Mr. Murray and Mr. Wolfley and Mr. Midney are absent. Item #3 PLANNING COMMISSION ABSENCES CHAIRMAN STRAIN: Next Thursday we have a regular planning commission meeting. And we usually are good for quorums on that. Just to verify -- anybody here today know that they won't be here next Thursday? Because if you -- you should have already received your packages. A supplement is supposed to be passed out to us today. And those that aren't here will get them couriered to them. But it's a second consent item for next Thursday. But if you'll notice on next Thursday's agenda everything got continued except for one item. I expect that we will be done rather quickly next Thursday, maybe an hour, hour and a half. Based on that, rather than see us get too tired and too strung out and get too rushed at today's meeting just to be done with it, because that's not what we need to do with these LDC amendments, they're far too important, I would suggest to this board that we pick a reasonable time this afternoon to quit and then continue to next Thursday after our regular meeting and finish the time up then. I think that will give us a little bit of a breather and we haven't got to go for a marathon meeting here today. How's the rest of us feel about that? COMMISSIONER CARON: I think that's a good idea. COMMISSIONER VIGLIOTTI: What do you consider a reasonable time, 3 :OO? Page 3 September 26, 2008 CHAIRMAN STRAIN: I was thinking 9:00. COMMISSIONER VIGLIOTTI: Yeah? I'm okay with that. CHAIRMAN STRAIN: No, I was thinking about 3:00. That will get us all time to get possibly some personal business done in the afternoon. Does that work? Anybody have any -- MS. F ABACHER: I wanted to just mention, Commissioner, that Joe had -- we had originally scheduled a BCC/LDC meeting this coming Tuesday, the 30th from 9:00 in the morning until whenever. That day is -- and the room is still available, if you wanted to do it this Tuesday as opposed to after your regular -- I'm just saying that it's available if you -- CHAIRMAN STRAIN: We already know we usually are here on Thursdays, especially the first Thursday of every month. It works out well to keep that continuity up. So we'll just leave it -- MS. F ABACHER: Whatever you want to do. I just -- Joe asked me to just mention it. CHAIRMAN STRAIN: Okay. Well, we'll leave it for next Thursday. So at some point today, probably no later than 3:00, or we'll round it offby 3:00, we'll continue this meeting till that point. Because there is no way we'll finish today. So that's real clear. And with that, that's the last item I have to discuss before Catherine, you wanted to make some introductory comments. MS. F ABACHER: Thank you. I just wanted to say that, you know, everybody's working hopefully from their notebook and you've been able to keep up with the supplements that we sent. We will be following the agenda and the checklist straight through. And you might notice on the new checklist it shows you what summary sheet you're talking about on the right-hand side, the first column. The second column shows you what page it should be in your book, Page 197, 201. Obviously the EAR-based amendments are marked in red. And I imagine that's all I'm supposed to say. CHAIRMAN STRAIN: Okay. By the way, I know you've got a Page 4 September 26, 2008 distribution as a supplement to next Thursday's regular meeting. Whatever you can't pass out because some are missing, obviously, they need to be couriered to those individuals. MS. FABACHER: No problem. CHAIRMAN STRAIN: But I hope that staff has sent a package including the supplement to the new commission member who was appointed on Tuesday. MS. F ABACHER: I believe that Sharon has. I'll check with her. CHAIRMAN STRAIN: I would assume that her first productive meeting will be then on the 2nd. MS. FABACHER: I understand that. And I believe that Ray Bellows said he was going to meet with her a couple times and try and, you know, bring her up to speed. Item #4A LAND DEVELOPMENT CODE (LDC) AMENDMENTS (CONTINUED FROM PREVIOUS AGENDA) CHAIRMAN STRAIN: Okay, for members of the public and anybody wishing to speak today, we're going to forego the sign-in slips. I'll try to remember after each issue to ask if anybody wants to speak. And we certainly are trying to get as much information on these matters as we can. So please feel free to speak at that point when we ask. With that, our first one today is on page 197, it's 3.05.07 H.1.h.i, preserve uses. And Steve, looks like you're leading. MR. LENBERGER: Good morning. For the record Steven Lenberger, Engineering and Environmental Services Department. The first amendment is due to a compo plan amendment. And I put the section of the compo plan on the visualizer. And it should be Page 5 September 26, 2008 up there as the bottom one, titled Recreational Uses in Preserves. And it's followed by the Stormwater in Preserves, which is a subset of the recreational uses. Basically if you look at the policy, we're supposed to define recreational uses that won't impact the minimum required amount of native vegetation, cause any loss of function to the preserve, and that includes a reduction or a change in the vegetation or harming any listed species within the preserve. Did you wish to go page by page like you did last time? CHAIRMAN STRAIN: I think that's the best way, especially with these. There's a lot of questions, so why don't we do that. MR. LENBERGER: Sure. CHAIRMAN STRAIN: And if you're finished then, we'll just start with Page 197, which is really the introductory page, and 198. Any questions from members of the commission on those two pages? Ms. Caron? COMMISSIONER CARON: 198, it would be h.ii. Pathways shall be limited to provide access to the different types of habitats and natural features within the preserve. In order to minimize the impact pathways have on preserves, the pathways adjacent to the preserve or within -- in order to minimize the impact pathways have on preserves, the use of pathways adjacent to preserves or within the preserve is encouraged. I don't know why we're encouraging it. Why don't we just limit it? MR. LENBERGER: Are you saying limit the pathways to being adjacent to the preserve or not in it? COMMISSIONER CARON: Why not limit them to being adjacent to the preserve, as opposed to in it? That way you don't have to worry about -- MR. LENBERGER: We met with the EAC sub-committee on Page 6 September 26, 2008 this and all the stakeholders, and we've had all kinds of ideas thrown about, from impervious pathways and bicycle paths all the way down to footpaths and just limiting things to adjacent to the preserve. And staff tried to reach a balance between all the impact we received, and that's why the language before you was drafted that way, kind of allowing some pathways but not just adjacent to, as kind of a compromIse. CHAIRMAN STRAIN: If you were to limit it to just that, but you have preserves as you do in many case that butt up to a common property line so that they can be contiguous to another preserve off-site, you wouldn't be able to basically then have a pathway in some areas, because it wouldn't be at the boundary of the preserve, it would be actually within it then. And that may be desirable. I mean, I'm working with the state on one location right now that they're trying to conform to our code, and their pathways are nature trails, kind of like what they have at Corkscrew Swamp Sanctuary. If we were to strictly limit it to the adjacent to preserves, they would -- it would basically eliminate their ability to do what they're trying to do. And it's for a good public benefit, so -- MR. LENBERGER: It would depend how it's permitted. Sometimes the wetlands, if they flow off-site, there's no berm at the perimeter. If there is a berm, sometimes you can put a pathway on the berm. So it depends on the individual circumstance. I don't know the specifics of your proj ect we're working on. CHAIRMAN STRAIN: Any other questions on Page 198? (No response.) CHAIRMAN STRAIN: Steve, the first paragraph, the small h, the last part of it. It says, will not cause any adverse impacts to the vegetation or wildlife within the preserve. That's not the language that's in the CCME. And if you look at the last line and the one in front of us it says, does not reduce the minimum required vegetation or cause harm to listed species. Page 7 September 26, 2008 I would rather we use that language. Is there a reason why we couldn't? MR. LENBERGER: There isn't any reason. We can change that. CHAIRMAN STRAIN: Because I wouldn't want to see any kind of misinterpretation between what the code's intention is and what the GMP says. MR. LENBERGER: We wouldn't have a problem with that at all. CHAIRMAN STRAIN: Under i.a, pervious nature trails, impervious nature trails. Impervious is sometimes a questionable situation, because paver blocks, for example, have a proportionate amount of pervious area versus impervious, or even those, what do they call them, grass blocks or the concrete that allows water to percolate through it. How would anyone be able to use those alternatives in this paragraph? Or is that -- how would that be looked at? MR. LENBERGER: I believe that would all be looked at as . . ImpervIOUS. CHAIRMAN STRAIN: There's no percentage then of-- MR. LENBERGER: No, we didn't address that. We only limited the impervious to ADA access and whatever the requirements are for that. We could address that, if you want, but we haven't. CHAIRMAN STRAIN: Well, I just want to make sure that someone could come in with that kind of a use and still -- as long as it meets ADA, you wouldn't have any problem with it by this language? MR. LENBERGER: Well, the reasoning a number of the stakeholders didn't want the blocks or pavers or things of that nature is because when you're in a preserve, you often have roots uplifting structures and things like that. And obviously there's maintenance associated with that, and it has some impact on the vegetation. So Page 8 September 26,2008 that's why we just kind of limit it to impervious pathways. And having these kind of paver blocks, which although allow some seepage of water or have open areas where the grass is, it would still be a hardened surface that could be upheaved by roots and things of that nature, so -- CHAIRMAN STRAIN: Well, wouldn't any impervious application, even asphalt, concrete, they're all that, or would file under that? MR. LENBERGER: That's correct. But we added the ADA because there are certain requirements that if you have a feature or a natural feature like an overlook in a preserve, you have to provide ADA access up to that point. So we were trying to address that requirement. CHAIRMAN STRAIN: Under i, the paragraph that Ms. Caron had pointed out where it says pathways shall be limited to provide access, could we just simply say pathways may provide access? Isn't that a simpler way to say it without -- MR. LENBERGER: The reason we use shall is we wanted to allow people to have pathways in the preserve to see all the different types of environments that might be in a preserve. But we've had I know one proposal where basically the proposal was to have pathways all over the place, looked like a spiderweb, basically, and we wanted to avoid that. That's why we use shall. CHAIRMAN STRAIN: Okay. I'm not sure that still works, only because I understand your argument about habitats, but you could have multiple points of the same habitat within the same preserve and you would basically be limiting it then to, what, just one example of that habitat before you go any further? MR. LENBERGER: Yeah. I'm reading it over as you're speaking here, and I understand what you're saying. CHAIRMAN STRAIN: I mean, Corkscrew would be in trouble. MR. LENBERGER: Well, we're not trying to limit it in the Page 9 September 26, 2008 respect that you can only go through it once, but we want to avoid overexcessive trails. So if you have some ideas on how to do that. May -- I don't know if we could prohibit someone from or prevent someone from overuse of trails. CHAIRMAN STRAIN: But if the trails' positioning requires them to replace the lost habitat from the use of the trail, how then could you have overapplication of the trails? MR. LENBERGER: Prom the context we're used to seeing, like at Corkscrew and other preserves, it's not a problem. But I wish I had this application here where it was just trails, like in a spiderweb type effect. It was just overdone, it was very obviously overdone. And I'm not sure how to prevent that type thing. CHAIRMAN STRAIN: Well, I understand your point, but if in trying to prevent one example that was overdone are we making the restriction too prohibitive to anybody else that may be trying to do it right for better reasons? MR. LENBERGER: Yeah, I see what you're saying. And I guess it could be interpreted that way, so -- CHAIRMAN STRAIN: This will come back. Could you think about that language before you come back and maybe we can discuss it further then? Ms. Caron? COMMISSIONER CARON: But typically, as you know, in all other things that we deal with, we have to prevent the poor example and then make adjustments for the people who are actually trying to do it right. That's the way it is on every other thing that we deal with up here. CHAIRMAN STRAIN: Right. COMMISSIONER CARON: Our laws are there because of the bad apples, not because of the people that do it right, so -- CHAIRMAN STRAIN: Okay, ii, pathways shall be kept to a maximum of six feet width. Could you add the words unless required Page 10 September 26, 2008 by federal or state regulations to be wider? And what I'm referring to is changes in possibly the ADA access or two-way access by wheelchairs and things like that. If they for some reason have to go wider and the state regs require it or the federal regs require it, they certainly should be allowed. Is that okay? MR. LENBERGER: I would think that would be appropriate. CHAIRMAN STRAIN: Okay, iii, a minimum preserve width of 30 feet must be maintained on either side of the pathway. That would mean then with a six-foot pathway you would have to have a preserve that's 66 feet wide. So if anybody wants to come into a preserve that is on a neck of land or any other geographic limiting problem, they really -- this becomes a real -- you have to have at least 66 feet wide at any point that that pathway were to cross. Is that -- MR. LENBERGER: We were trying to maintain minimum width on either side of a pathway, instead of fragmenting smaller pieces where you have influences from the edge, different types of uses. We've also tried to encourage pathways adjacent to preserves. And in areas where you have a very narrow section of preserve, it's probably more appropriate to have the pathway go outside the preserve and go along the perimeter. And we also added language in the very last item on Page 199 that there's no setback requirement for impervious pathways. So we're trying to encourage, when you have these very narrow strips, to skirt outside on the edge of the preserve to try to maintain the integrity of that portion of the preserve where it's very narrow. CHAIRMAN STRAIN: Okay. So in iii then where it says a minimum preserve width of 30 feet must be maintained on either side of pathways, you don't mean both, you mean just one or the other. So you're looking at a 36- foot wide minimum width. Page 11 September 26, 2008 MR. LENBERGER: Well, whatever the minimum -- yeah, if you have a 30- foot wide section of pathway and you put your -- 30-foot wide section of preserve and you put your pathway adjacent to it, that would be fine. CHAIRMAN STRAIN: Well, how does that then conflict with A.i, where you're asking that -- we're encouraging pathways to be on the edges of preserve buffers? I mean, I understand that -- well, I know they'd be outside there, but then there'd be -- so even -- that's where you could -- you have to put them outside the preserve if you have a preserve narrower than 30 feet? MR. LENBERGER: That's correct. CHAIRMAN STRAIN: Okay. And then under ifi.v, pathways shall not interfere with any listed species using or present within a preserve. You know, that really needs to be struck. The ambiguity in that statement can eliminate pathways anywhere that anybody wants to come up with any kind of argument at all. I can't see how that is reasonable. I mean, as far as pathways shall not interfere with any listed species using or present within the preserve, you could have something flying over and it could be an argument it interferes with it. And I know that maybe you wouldn't do that as a reasonable person, but not everybody may be reasonable. MR. LENBERGER: I would have a suggestion, if you don't like that language -- CHAIRMAN STRAIN: To me, I think it's unreasonable, but-- MR. LENBERGER: Okay. I guess the intent of that is like an eagle nest or gopher tortoise burrow, you're supposed to maintain 25 feet from a gopher tortoise burrow and you know there's certain nest radiuses you're supposed to maintain around eagle nests, so -- CHAIRMAN STRAIN: Those are -- see, that's factual, very quantitative -- Page 12 September 26, 2008 MR. LENBERGER: But we could put that down -- CHAIRMAN STRAIN: -- and that's good, there's nothing wrong with that, but -- that's where I'm trying to get you to go. If you can go there -- MR. LENBERGER: Yeah, we can do that. CHAIRMAN STRAIN: -- and be more qualitative or quantitative, whatever you want to call it, to be very specific, I think that's helpful. MR. LENBERGER: All right, we'll amend that. COMMISSIONER CARON: The specific reference is good. CHAIRMAN STRAIN: Anything else on Page 198? (No response.) CHAIRMAN STRAIN: Page 199? Ms. Caron, then Mr. Schiffer. COMMISSIONER CARON: Under b, shelters for protection from weather. MR. LENBERGER: Yes. COMMISSIONER CARON: Do we have any standards for that size, location? I mean, are there any limits or can you build whatever you want? MR. LENBERGER: We didn't impose any limitation on the size of the shelter, no. COMMISSIONER CARON: And the same with viewing platforms down below, how high, how wide? I mean, I think we need to have some sort of standards. MR. LENBERGER: Yeah, I've seen different type observation towers for birding in PUD's, and they generally are consistent with the zoning that they're in and the PUD zoning. So I don't know how you want to limit that as far as height. CHAIRMAN STRAIN: Would they still, any displaced preserve area have to be compensated for by more preserve area? MR. LENBERGER: Yes. If it was at the minimum requirement, Page 13 September 26, 2008 yes. CHAIRMAN STRAIN: That is somewhat of a protection. So we're never going to lose on the size of the preserves. So if they use a viewing platform or a shelter and it takes up 200 square feet, their preserve's going to be 200 square feet bigger plus now that facility. MR. LENBERGER: That's correct. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: That was my question. But actually the question was going to be how do you judge -- this is going through review. You would stop something that wasn't reasonable size anyway, correct? MR. LENBERGER: We haven't addressed that concern. We have -- there's no limitation criteria here. But we could add something, if you feel more comfortable about that. COMMISSIONER SCHIFFER: But I think replacing the preserve, it doesn't matter, it's a -- MR. LENBERGER: The area covers, and it won't matter because you have to keep the minimum amount. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Page 199, anybody else? (No response.) CHAIRMAN STRAIN: Steve, up in vi, pathways other than for boardwalks must be at natural grade. I want to suggest that we add something, if not at natural grade, provisions shall be made for the passage of surface water. Only because it may not be practical at all times to be at natural grade in a preserve, especially if it's a soggy, wet area. And that actually may be more harmful for civilians to walk through than if we just provided a little bit of an elevation. I know it's going to be pervious, but at least then it's compensated for by some kind offlowthrough, so there's no water impediment. MR. LENBERGER: Okay. Page 14 September 26, 2008 CHAIRMAN STRAIN: Then under iii towards the bottom. In the middle of the paragraph, it says walls may be utilized outside of the preserve but must be set back a minimum of 10 feet from the boundary of the preserve. Just out of curiosity, why 10 feet? MR. LENBERGER: Ten feet is the minimum setback requirement for accessory structures in -- CHAIRMAN STRAIN: Right. MR. LENBERGER: I believe that was language I took -- I'm just trying to look at the struckthrough language. No, it just says they're not supposed to be in preserves. So there was no setback in the original language. It was just to conform to the 10- foot setback for accessory structures. CHAIRMAN STRAIN: So if you want a wall in a preserve then, you'd have to hold your preserve back 10 feet from your property line in order to put a wall in. And so we'd actually -- is that what this would cause? I'm still wondering why 10 feet is the magical number when you need far less to build a wall. MR. LENBERGER: If you have some ideas, construct then' maybe a masonry wall? I don't know how much area you need to work in to do that. We're open to suggestions. CHAIRMAN STRAIN: I know that if you put a wall in, and usually you got a foundation or if you have a block wall you've got a footer that's 12 inches wide. If you've got a cedarcrete wall, which is that concrete, they're just post. But they can all be put in with a few feet. Then the only other issue is maintenance of that wall. So by the time you put the wall in, which is basically a foot wide after it's installed, takes a little more to put it in, I think half that distance would be more appropriate. You could actually get then -- work the wall and go back in and work it in the future to maintain it. Page 15 September 26, 2008 So that's the only -- I think we're eating up valuable space by requiring 10 feet setback. So if there's no problem with half that, I think we'd be better off with five. Mr. Schiffer? COMMISSIONER SCHIFFER: I just have a concern, is that if this thing was ever on fire, you would want to get good access along the edge of it. And essentially what you're intending -- who would be building this wall, the property owner adjacent to it or would it be -- CHAIRMAN STRAIN: Well, it would be on the property owner who owns the preserve. COMMISSIONER SCHIFFER: Unless it's 10 feet, it might be. If my property line is 10 feet, could it be 10 feet from a preserve? I know we've been debating that lately, but -- MR. LENBERGER: This is written in the context that it would be the same property owner who owns the preserve. COMMISSIONER SCHIFFER: Okay. So if for some reason he wanted to wall it or he had to wall it because of what it's approximate to. So is the 10 feet by any chance having to do with access around it solely, or is it due to the impact on the structure to the preserve? MR. LENBERGER: The whole idea of having preserve setbacks is for that to have access for maintenance of the structure. And also, you could have it of a preserve as well. COMMISSIONER SCHIFFER: I'm not sure. Mark, what's the concern with the -- CHAIRMAN STRAIN: Well, see the more you push the wall out from the preserve, actually, that means the preserve then has to be further into the property. And there may be an advantage to keep it closer to the edge of the property. And I just thought for flexibility, if the minimum is five instead of 10, then you've got a little bit more flexibility, and we might Page 16 September 26, 2008 actually get better preserve than less preserve out of it. Only because we've got -- be able to go right to the property line with it and there may be an area that needs that better vegetation. COMMISSIONER SCHIFFER: And then what would tend to be on the outside of the wall? It would be -- I guess it could be a road right-of-way, it could be a property. I'm just concerned, if the thing is on fire, that access, even 10 feet's kind of tight, so -- CHAIRMAN STRAIN: Well, if the preserves on fire, they'll go in there with their -- forestry has these great little devices that just bulldoze a path right through everything and tears it all up. They don't actually go into the preserves. I've-- COMMISSIONER SCHIFFER: That doesn't make it any easier if they -- anyway, I have no comment. I mean, the point he made is that it's for maintenance around the preserve. They want 10 feet, then I'm comfortable with it anyway. But I can be swayed. CHAIRMAN STRAIN: Well, Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I think five foot's a more practical number for a number of reasons you had mentioned. CHAIRMAN STRAIN: Well, if it's five feet as a minimum, they could always go 10 feet if they wanted to. They can go anything above that; is that right? MR. LENBERGER: That's correct. CHAIRMAN STRAIN: This would only kick in for those cases where they're tighter than they need to be to get the preserve in, and that helps. But that's all I was trying to think. Okay. And that is the end of that couple of pages. So -- Ms. Fabacher? MS. F ABACHER: I'm sorry. I was just looking at -- on Page 199, iv, where it says no setbacks from preserves is required for impervious pathways, and I believe that should read pervious. Page 1 7 September 26, 2008 MR. LENBERGER: No, it's meant to be pervious -- MS. FABACHER: It's meant to say-- MR. LENBERGER: Right. The only impervious we have in the amendment within a preserve is for ADA access. These impervious for other uses, bicycle paths or whatever of that nature, would be outside the preserve. We're encouraging them to be next to the preserve but not within it. MS. FABACHER: Sorry, thank you. COMMISSIONER CARON: You might restate that it's for ADA there -- COMMISSIONER SCHIFFER: Well, that is-- COMMISSIONER CARON: -- and that way there's not confusion by somebody just looking at that one section then. MR. LENBERGER: Well, it's for all impervious, not just ADA. CHAIRMAN STRAIN: Right. So if there's more impervious other than ADA, it's still covered by this no setback requirement-- MR. LENBERGER: Right, the no setback is for all impervious, not just ADA. CHAIRMAN STRAIN: That's currently -- I mean, right now do we have a setback in the code for paths anyway? They're not structures, they're below the 30 inches. MR. LENBERGER: Right, the interpretation I got from management is that all your concrete, your asphalt curbing all has to be 10 feet from a preserve boundary. Utilities as well. CHAIRMAN STRAIN: Oh, because you're looking at it as an accessory use. But this is looking at it as a use within a preserve. So if you have a use within the preserve, what's the setback for that use within the preserve? Is that what -- I'm -- MR. LENBERGER: You're talking i.iv -- CHAIRMAN STRAIN: Say you have a property line. MR. LENBERGER: I.iv is from preserves, it's not within preserves. It says no setback from preserves. Page 18 September 26, 2008 CHAIRMAN STRAIN: Okay. MR. LENBERGER: From preserves. CHAIRMAN STRAIN: So internal to the preserve you could have this impervious walkway. MR. LENBERGER: Only if it's ADA. CHAIRMAN STRAIN: Right. Right up to the property line. MR. LENBERGER: Yes, that's correct. CHAIRMAN STRAIN: Okay, that's what I was confused on. Thank you. COMMISSIONER CARON: But only if it's ADA. MR. LENBERGER: That's correct. CHAIRMAN STRAIN: That gets us through that section up to Page 199. Comments from the -- anybody wishing to speak? And you guys just come up and take a microphone one at a time and we'll try to respond to your concerns on the fly. MR. YOV ANOVICH: On the fly. CHAIRMAN STRAIN: On the fly. And it's not an endangered fly either. MR. YOV ANOVICH: Good morning. For the record, Rich Y ovanovich. I notice that the language that Steve put up there from the Growth Management Plan uses very different terminology that's within the Land Development Code. Starting with the Growth Management Plan says we're supposed to be addressing passive recreational uses within the preserves. And we've now gone to regulating what passive uses are allowed within the preserves. I don't know why we've made that change to go to passive uses versus passive recreational uses. And actually, if you look at the definition within -- I don't know if you've done the definition yet of passive recreational uses, but the word boardwalk doesn't appear within passive recreational uses. So there seems to be some inconsistencies there. Page 19 September 26, 2008 We also go to the terminology adverse impact, when the Comprehensive Plan, if you look at the last sentence, clearly talks about -- it has two goals. One, you're supposed to not reduce the amount of native vegetation you're required to maintain. And two, you're not to cause harm to listed species. So we've now changed the terminology. I don't know what adverse impact means. CHAIRMAN STRAIN: We corrected that in the beginning. MR. YOV ANOVICH: Oh, is it -- I'm only on this one. CHAIRMAN STRAIN: I know that, but we said to Steve to put it -- to use the exact language that's in the GMP in our very first comment here today. MR. YOV ANOVICH: Okay. I just want to make sure that -- okay, then I missed that. But I agree with going to the exact language that's in the Growth Management Plan. CHAIRMAN STRAIN: Right, that was the intent. MR. YOV ANOVICH: Okay. When you look at on Page 198, I guess it's A.i, and it talks about pathways shall be limited to provide access to the different types of habitats and natural features within the preserve. There are -- and Collier County probably has, you know, a boardwalk that would now be illegal, the boardwalk serving Clam Pass Park. That boardwalk is not there to provide access to nature and viewing nature, it's to provide access to a county park. This language would appear to prohibit that boardwalk from occurrIng. And the Pelican Bay Foundation has boardwalks that serve its amenities that -- so the boardwalk's not there to serve as a viewing, or a nature viewing platform, it's actually to provide access to other amenities that the preserve is -- you know, between. I would say that that probably affects a lot of golf courses out there as well when there's a boardwalk winding its way through a Page 20 September 26, 2008 preserve that's not truly providing access to look at nature, it's to provide access, you know, because -- as a bridge, if you will, from a different use. So I don't know that you want to say shall be limited solely to those purposes, because that's not what's happening today. CHAIRMAN STRAIN: We suggested that in place of the words shall be limited to, the word "may" be placed there. Pathways may provide access. MR. YOV ANOVICH: But then the question becomes -- and I -- when you put may be used for those purposes, it's always been interpreted very limiting. You know, that -- I don't want to have any limitations on what that's providing access to, because why do you need it when you're going back to the issue of we're not supposed to cause harm and we're not supposed to reduce the required native vegetation. Isn't that already taking care of the issue of whether or not the boardwalk is an appropriate use? Because it's going to be measured against are you still meeting your native vegetation requirements under the Land Development Code. If you are, that's -- the first part's settled, satisfied. And if you're not causing harm to listed species, the second issue is covered in the Growth Management Plan. Any time you have language in here, it can be interpreted to be limiting versus -- or add to the list that it can be providing access to other areas within a project or things like that. I'm just concerned about any implication that there may be a limitation. Under ii -- CHAIRMAN STRAIN: Well, let's finish with each one first, because these are way too important. And after hearing about or watching parts of the Board of County Commissioners' meeting the other night on the LDC amendments, I realize that we do need to be more thorough here. Page 21 September 26, 2008 So I'd rather address the issues and you just tell them -- throw them on the table and walk away. I'd rather get it revolved. Your concern over those other boardwalks is a real good point, which is why the public's participation at these meetings is so vital. Those are -- that boardwalk in Clam Pass is our Parks and Recreation Department's access to the beach. Without it, we'd have a serious problem. And Steve, in response to Richard's concern, I'm glad he pointed it out. How would that fit into this issue? How would that fit into i? MR. LENBERGER: Well, a couple of things. One is, first, the beach is a different type of environment, so is the dunes, so it is allowed out there, according to the way it's drafted -- MR. YOV ANOVICH: But it's not within the preserve, Steve. That's the concern. That is a separate conveyance with the county. MR. LENBERGER: The park is, but the whole beach is not a separate conveyance. That whole -- that one little portion of the park is privately owned, but the beach around it, it's my understanding, is privately owned. And correct me if I'm wrong, but it is providing access to the beach, which is a different type of environment. If you want to add language, you know, talking about legal access, that's something we could address, too. CHAIRMAN STRAIN: Well, you know, this is an interesting point. He previously said, and I want to understand it, say you had a 10-acre preserve and you wanted to put boardwalks like we have going across Clam Pass in that 10-acre preserve. And those boardwalks were wide because they have trams on them. In fact they want whole spaghetti rows of boardwalks. But the preserve everywhere where they put those boardwalks was expanded to still have 10 acres of net preserve. What have we lost? I mean, if this paragraph wasn't here, what have we lost then by that application as example? If we still have 10 Page 22 September 26, 2008 acres, regardless of how many boardwalks we put in, what have we lost? MR. LENBERGER: Well, it's getting back to the earlier example I was pointing out where over excessive amount of trails -- and that was just one example, you know. All the other products I have seen, it's very reasonable. You know, I don't want to restrict that. It's not meant to. But there are those few cases where it's going to be overdone. And the access issue is another issue. And we could address that. CHAIRMAN STRAIN: And I -- Richard, the overuse of boardwalks is a good point. You know, some developers -- I know none you would ever be associated with -- might come into a preserve and decide they want to crisscross it with boardwalks. They might want to put a boardwalk out there big enough to play games on, who knows? That's a good point. And I'm sure that that's not what the intent here is. But maybe you could suggest some language that would prevent that? MR. YOV ANOVICH: Well, I think the language is already there. Because remember, I can't reduce the amount of native vegetation. And two, I can't cause harm to listed species. If we're not causing harm to listed species by having a nature trail boardwalk system through a preserve, why would you say that that's a bad thing? CHAIRMAN STRAIN: Yeah, because then what happens if it's not listed species you're dealing with and you're just dealing with just vegetation, whether you have 10 acres of vegetation with paths on it or 10 acres without, as long as you've still got 10 acres of vegetation, you've not caused any harm. MR. YOV ANOVICH: We've not caused any harm. And is that necessarily a bad thing to have nature trails through a preserve? I don't know that that is a bad thing. Page 23 September 26, 2008 And before we get into the next one, I do have a conceptual question. We talk about preserves, and this regulates preserves. My question is, does it regulate county required preserves, which is your minimum native vegetation requirements, or does this apply to every preserve? Because they're different. I mean, you can have a project that is a couple thousand acres, and under the county's calculation you need 300 acres of native preserve. And then you decide -- you volunteer to put more in it, more preserve. Are these regulations going to prohibit what you can do in your voluntary excess? CHAIRMAN STRAIN: Steve, and that's an interesting point. If you have a required preserve by county standards as part of a development, at some point along the way that preserve has to be -- has to have the formality of a conservation easement put over it; is that a fair statement? MR. LENBERGER: That's correct. CHAIRMAN STRAIN: Are the intentions of this section of the code to apply to those areas that have conservation easements placed over their preserves? MR. LENBERGER: Yes-- CHAIRMAN STRAIN: Since that's the only required part. MR. LENBERGER: That's correct. CHAIRMAN STRAIN: Okay. Because I think that's a very important part that needs to be added, because a lot of people may want to put more preserves on a piece of property, but you'd only have these restrictions on that portion of preserve required by the county and it would be in the form of a conservation easement. So what that would mean is if you didn't put the section of preserve in the conservation easement that's in excess of the county standard, then you'd be able to do basically with that what you wanted. Is that a fair statement? Page 24 September 26, 2008 How do we separate out the uses that could be allowed in those two types of preserves? One is a required preserve and the other is not a required preserve. So basically we're asking for regulations for required preserves that are in the format of conservation easements. Unrequired preserves then fall under what category? MR. LENBERGER: Well, there are different types -- there's county required preserves, there could be preserves that are just required under the state and federal permitting requirements, under the Corps and South Florida Water Management District, and even the DEP. And there could even be preserves which are just natural areas that the developer is setting aside himself. That could also happen. We could make these all apply to just the county required preserves and put it somewhere under H in the beginning, and let the state and federal entities regulate what occurs in their preserves -- CHAIRMAN STRAIN: Well, you know-- MR. LENBERGER: -- and leave it at that if you want. I mean, I CHAIRMAN STRAIN: The old saying, give Caesar what belongs to Caesar. If the county requires it, then this should apply to the county's. Anything beyond that, the agencies apply as they see fit or the regulations of the PUD that established the preserves would apply. Is that fair? MR. LENBERGER: That -- we can clarify that if you want. CHAIRMAN STRAIN: Then we could -- okay. And then the other thing, before we keep going, as Richard's brought up more points, attorneys seem to always do that, he started out talking about the first two words in this paragraph A, passive recreational -- actually three, passive recreational uses. And we are in the process of defining what are passive recreational uses. Now, does this mean that all those items that we were listing under passive recreational uses would be allowed in preserves? MR. LENBERGER: We're limiting to what is actually listed in Page 25 September 26, 2008 this amendment. CHAIRMAN STRAIN: Well, then how does that match the GMP language that's in front of us? MR. LENBERGER: The GMP language says passive recreational uses. CHAIRMAN STRAIN: Right. MR. LENBERGER: It also addresses stormwater, receipt of stormwater in preserves. And that's what we've addressed. We've looked at both issues. So I don't really understand exactly what your question is. CHAIRMAN STRAIN: Well, we're talking about passive uses in preserves, and I notice the word in your -- MR. LENBERGER: Oh, in our amendment -- CHAIRMAN STRAIN: -- documentation omits the word recreational. MR. LENBERGER: Because it includes the recreational uses and also the stormwater. If you look on Page 199, it includes ii, which is the stormwater. It says, see stormwater uses in preserves amendment and it also addresses some setbacks. CHAIRMAN STRAIN: Well, it doesn't include stormwater. MR. LENBERGER: Well, stormwater will become a subset of this amendment. It will be located right where ii is. CHAIRMAN STRAIN: So that whole section dumps into this one. MR. LENBERGER: That's correct. CHAIRMAN STRAIN: And we'll be discussing that one next here today, so -- MR. LENBERGER: Yes. MR. YOV ANOVICH: Mr. Strain, a point I would like to make is if you have a preserve that has water in it and you're a kayaker, as I read this I don't know that you can kayak in it, because you're only allowed passive uses instead of passive recreational uses. Page 26 September 26, 2008 The term passive recreational uses includes kayaking, canoeing and things like that, and hiking. I don't know if we're talking about what the, quote, use is allowed within the preserve. CHAIRMAN STRAIN: And that was exactly why I brought the question up. I didn't focus on that point till you started out your conversation by saying the GMP says passive recreational uses, yet this whole section of the LDC has dropped the word recreational from its application. And we are reviewing what recreational uses are allowed as passive in another section of this LDC amendment. And my -- it's both a concern and out of curiosity then, does that mean any recommendation for including as a passive recreational use then by the GMP is allowed in a preserve? MR. LENBERGER: If it's in the GMP, it would be allowed. And if you look under F on 199, it says conservation related activities comparable in nature with the foregoing uses, as determined by the county manager or designee. CHAIRMAN STRAIN: But that's not what the term passive recreational uses necessarily will be. It won't need as much determination by the county manager because it's an amendment coming forward for us for discussion, and it's going to be very specific. So does that mean all the uses that we list as passive recreational uses are allowed in preserves? MR. LENBERGER: Talking listed in the compo plan? CHAIRMAN STRAIN: No. We have an LDC amendment somewhere. And Catherine, do you know which number it is? MR. LENBERGER: Okay, you're talking -- okay, I understand now. The only uses that would be allowed in preserves would be the ones listed here. This is related to the amenities, to the structures and Page 27 September 26, 2008 amenities you actually build in the preserve. MR. LORENZ: Mr. Chair, may I make an observation? I think what we've -- what is provided here is -- does not allow for I think what you've indicated, the use of passive recreational uses within the preserve. This -- the staff is focused on, if you will, the construction standards and facilities that the GMP applies here. I think what we really need to do is we need to still allow passive recreational uses in the preserves, because that's what the GMP does allow for. The facilities that you are putting in the preserve that help to support those passive recreational uses would be limited by what is proposed here, together with their construction standards, so to speak. And then we just have to make sure that the wording in the construction of the amendment allows for those passive recreational uses, allows for these facilities. And I think that would then marry what the GMP is requiring. CHAIRMAN STRAIN: You don't want to get the cart before the horse, though. At some point wouldn't you want to know definitively what the array of passive recreational uses are, which has been a point of discussion already as an LDC amendment? Because then your standards would more or less have to be tailored after what that application has been resolved to be, I would think. I know Ms. Caron is waiting to ask a question as well. MR. LORENZ: I think that that could be important if after we see the range of passive recreational uses, some of the uses that have been set up as an example, like kayaking or canoeing. If there is a water feature within that preserve, at the moment we are not -- this would not preclude that recreational use, or I certainly don't want to be able to preclude those types of recreational uses. MR. YOV ANOVICH: You probably need to change your terminology, because you use the word use. Maybe you should be talking about structures? The following structures are allowed, something different. Page 28 September 26, 2008 CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: But actually it is. Because if you go back to 197, this whole section is about design standards, all right? So it is about structures. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: Is there a possibility we could hold off on this till we define passive recreational uses? CHAIRMAN STRAIN: Well, I think that we're going to have to resolve passive recreational uses before Bill and Steve can write the accurate language to reflect the uses that are finally decided upon. MR. LORENZ: I can make a suggestion. We certainly can, I think, begin -- staff can begin working this section up with the comments that you've already made. I think we can take the -- split it out so that in terms of the construction of the language that we separate out the passive recreational uses versus the facilities that we're allowing. And then what -- at least staff can get working on that after this meeting. What we can do is when you define what passive recreational uses are in a broader sense, then that is a very encompassing list. If we wanted to take a few items off of that list, then we can then constrain the uses in preserves that way. So at least we can get started with the all the comments that we've heard so far along that kind of strategy. CHAIRMAN STRAIN: And I think it's important to hear all the comments we can on this today so that you can come back with a better document. And you may want to have us hear this passive recreational use list one more time before you finalize your document, which I know it's probably -- when is that coming up again? MS. FABACHER: That's the last one on the agenda today. We can move it up, if you prefer. Page 29 September 26, 2008 CHAIRMAN STRAIN: Yeah, we may do that to benefit. We'll see as this time goes on. And Steve and Bill, when you guys formatted this section, did you consciously leave out or just not recognize that the word recreational was in between the words passive and uses in regards to how you set this up initially? It just seems like it was missed, and I'm not sure -- I don't mind, I'm just curious. MR. LORENZ: I think Steve said that when he set this up and he was looking at allowable uses when he began the construction, within this section it's stormwater. So that's -- obviously stormwater is not a recreational use. So in putting that in this section, we -- so I see the dilemma here, so we can fix that. CHAIRMAN STRAIN: Okay. Richard? MR. YOV ANOVICH: I've got a lot more but before we get -- CHAIRMAN STRAIN: You've got a lot more? MR. YOV ANOVICH: Well, just a couple more. But from a format standpoint, would it be possible for there to be one document that deals with 3.05.07 that has all the amendments in one place so we can read through it and understand the implications, instead of flipping back and forth to the stormwater section? It's just difficult to see it in context. CHAIRMAN STRAIN: Well, it's like the example Mrs. Caron pointed out. COMMISSIONER CARON: I would think-- CHAIRMAN STRAIN: Yeah, I agree. I think that would be-- COMMISSIONER CARON: I totally agree. MR. YOV ANOVICH: It's just -- I'm not -- I understand that maybe the need to break down the amendments for one subj ect in each amendment, but give us from the public and probably for you all, you know, the consolidated approach. We can all read it in the whole context and maybe better understand some of our comments. Page 30 September 26, 2008 COMMISSIONER CARON: And where everybody's trying to get to. MR. YOV ANOVICH: Right. And maybe we could have clarified it with the statement of this is talking about structures only, not specific uses. Maybe -- CHAIRMAN STRAIN: Well, for example-- MR. YOV ANOVICH: The comment may have been a little bit different than what I was trying to say. CHAIRMAN STRAIN: Where it says see stormwater uses in preserves amendment, if you really read into that now, what it means is the design standards only of that language section apply, because that's -- it's falling under the design standards for this section. And I'm not sure it's limited to that, but -- MR. YOV ANOVICH: There could be some unintended consequences of using some of the phraseology that would jump out at you if you saw it altogether instead of in piecemeal. CHAIRMAN STRAIN: Would that be something staff could -- we can come back with? MR. LORENZ: Absolutely. MR. LENBERGER: So you want me to put together the whole section of the code, 3.05.07, with the amendments and the unamended language in its entirety. CHAIRMAN STRAIN: I think that would be so helpful. Then we know in a big package what we're looking at, rather than having to try to go to Municode, which we know is not current, and then we've got to go to 10 ordinances after that to try to piece it all together. So that would be very helpful. Ms. Caron? MR. LENBERGER: You want that as a separate document put to you? CHAIRMAN STRAIN: Well, I think it's an LDC amendment you're putting to us, so just put it in as this amendment. Page 31 September 26, 2008 COMMISSIONER CARON: Right, I think we should -- and we should do that. You should have the time to do that and we should put it on next week's agenda right now and not waste a lot of time. Let's look at it in total and let's -- CHAIRMAN STRAIN: They won't get this done by next week. You're not going to be able to get this done by next Thursday, are you? MR. LENBERGER: No. MR. LORENZ: Mr. Chair, my suggestion would be is we can go through everything separately that we're looking at here with all the comments that the public has, get that -- get the direction from the planning commission as to how you'd want to see those types of comments incorporated into the code, and then we can work on a consolidated version at that particular point. Because then we'll have everything together, at least what everybody is suggesting that we make the changes on. CHAIRMAN STRAIN: Okay. Let's just move forward then. That sounds fine, Bill. Okay, Richard? MR. YOV ANOVICH: Ii, A.ii, the six-foot width. I don't know where that standard came from. I know that, again, if you look at Clam Pass Park and improvements that are already done in Pelican Bay, I believe those boardwalks are 10 feet in width right now. I think at a minimum we should grandfather in existing improvements and allow those improvements to be rebuilt if something were to occur. Because I guess if something happens to that boardwalk, the county boardwalk, they would be limited to just six feet in width to rebuild it. And why -- again, going back to the harm to listed species analysis and the reduction in native vegetation, why do we even need a width requirement for boardwalks? CHAIRMAN STRAIN: Well, another issue you might want to -- Page 32 September 26, 2008 I don't know, Steve, if you've seen this yet. Parks and Recreation has a very elaborate plan to expand that boardwalk in Clam Pass, and it will be expanded wider than six feet. So we might want to certainly consider that in the rewrite of this. MR. LENBERGER: I went to the sub-committee on this and all the stakeholders. And the stakeholders wanted four feet. I talked to our staff in our building as well as in Transportation regarding ADA access, and issued (phonetic) constructed five feet minimum. I talked to Margaret Bishop in Transportation, because she's working on the park down by the zoo, the Gordon River. And there it's proposed six feet. The reason it was for six feet is because Parks and Recs, their maintenance vehicle needs a six-foot wide boardwalk to go through. So the staff went up to the higher number of six feet. We're certainly open to suggestions on what you want to have, but that's how we got to that point. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Well, we keep using Clam Pass. It's a convenient one except that we're -- when we get to the passive uses, actually, it's for non -- essentially non-motorized uses. The reason that Clam Pass has 10 feet is because they're sending trams back and forth. So I'm not sure that it's the same animal is all I'm saying. And again, I think we need to have it -- MR. YOV ANOVICH: But I'm just giving you -- I'm just giving you real life scenarios -- COMMISSIONER CARON: I understand -- MR. YOV ANOVICH: -- that would be in conflict. I'm sorry -- CHAIRMAN STRAIN: Please don't overspeak when someone else is. MR. YOV ANOVICH: I'm sorry. CHAIRMAN STRAIN: So, Ms. Caron. Page 33 September 26, 2008 COMMISSIONER CARON: I understand. But I think that what we're going to find is it's two different animals. And again, the need to have everything in front of us laid out so that we can look at things as a whole and not-- MR. YOV ANOVICH: And again, I go back to, remember, there's a process whenever you're dealing with wetlands and other areas, you're going to other agencies that are going to review what is the impact of six feet, eight feet, 10 feet, 12 feet, whatever you're proposing. They're going to look at that impact on listed species. And what I'm suggesting is, is there's probably -- I don't even want to guess how many examples, but I played a fair number of golf courses in this community and I will bet you there's a lot of boardwalks out there that are already built that are far in excess of six feet in width. And why -- if they are destroyed in a storm, or for whatever reason, why would we not let them be rebuilt back to what they were already permitted to be built in the first place? We're just creating some issues here that I don't know that was just thought through. And if we could put in general exception for what's already there, and it can be rebuilt if it is somehow damaged. I'm making that suggestion. COMMISSIONER CARON: But boardwalks on your golf course are not boardwalks in a preserve. MR. YOV ANOVICH: They go through preserves all the time -- COMMISSIONER CARON: I mean necessarily. MR. YOV ANOVICH: I'm just saying they do. There are all kinds of boardwalks that are taking you from an upland area through a wetland area to the next pole. And as this is currently written, I don't think I can even have that boardwalk, that's why I brought that first point up. And then the next one is okay, if it's an existing structure greater than six feet in width, it's now a legal nonconforming structure, if it Page 34 September 26, 2008 gets damaged I can't rebuild it. CHAIRMAN STRAIN: Steve, one resounding concept that seems to be coming out of this, if you are provided -- and with the makeup of any vegetation area loss, and there is no harm to listed species, maybe that's the premise under which you ought to look and see if these are all really needed. I know some of them may be. But there may be some that aren't, and they may be needlessly introducing additional regulatory restrictions that really we don't need that are already there in the language simply by saying you can't reduce the vegetation or you can't harm a listed species. I'm not sure what more objective we would have than that. So I'm just suggesting you might look at that. And you had earlier said you had a meeting on the pathways with the stakeholders. Who are the stakeholders? MR. LENBERGER: We had the EAC sub-committee, there were three members. And we've had basically the development community, the environmental community were all there. CHAIRMAN STRAIN: Was anybody from Pelican Bay there and the Clam Pass maintenance people? MR. LENBERGER: No. CHAIRMAN STRAIN: Was Richard there? Because he does represent a lot of developers. MR. LENBERGER: No, Richard was not there, and neither were people from Pelican Bay. I would like to mention a couple of things. We could easily add a grandfathering clause, that's no problem. As far as the golf course paths, the golf course paths I don't believe are allowed in preserves anymore. They used to cross preserves, but they're not allowed now. But if the -- MR. YOV ANOVICH: You need to -- Page 35 September 26, 2008 MR. LENBERGER: -- if they're for access, we can write some requirements for access and not limit it to six feet, if that's your concern there. CHAIRMAN STRAIN: Well, these are all very big concerns. I mean, I'm glad that they're pointed out, because we have this habit of passing these rules that have inadvertent consequences that we don't know about for six months or 12 months later. And by God, that's what we're here today to try to prevent. And that's why these meetings are taking longer. Ms. Caron pointed out a very good point under v, number five, that pathways must have posts or other devices installed at their access points to prevent unauthorized motorized vehicles. Well, besides golf carts, we just heard about maintenance carts needed by Parks and Recreation, which the taxpayers are funding. We know that there are trams. How can we have language like that in here under those conditions? MR. LENBERGER: It says unauthorized motor vehicles, so -- MR. YOV ANOVICH: That's another ambiguity, you know-- MR. LENBERGER: Well, that language actually came from DSAC to put in there. Because you do have maintenance vehicles, obviously, or golf cart vehicles in some preserves, existing preserves now. CHAIRMAN STRAIN: Steve, I think there's a lot of cleanup needed on this document. And Richard, do you have anymore comments? MR. YOV ANOVICH: No, but -- I don't think so. But I just learned about -- that I guess existing golf cart paths that are going through preserves are no longer an allowed use through preserves. If we're in that section of the code right now, we need to fix that. Because you're going to have some serious consequences with some golf courses out there -- CHAIRMAN STRAIN: I know many that-- Page 36 September 26, 2008 MR. YOV ANOVICH: And they won't be able to rebuild some -- COMMISSIONER CARON: Rebuilding-- MR. YOV ANOVICH: -- rebuild their cart paths and boardwalks. You'll have some very short golf courses. CHAIRMAN STRAIN: I can assure you, I don't believe that is the intent of what these boards are believing is being represented to them. And maybe we can get that all fixed so there's no -- MR. YOV ANOVICH: Yeah, I don't know if we're in that section of the code right now, but that's -- I was not prepared for that comment today. Those are my comments on this particular section. And then I guess when we get the consolidated re-write, we may have some additional feedback for you all after we see it all in one document. CHAIRMAN STRAIN: Stormwater is next. When I saw this ii, see stormwater uses in preserves amendment, my thought was it wasn't part of this. Now that I know it's part of it, it does bring a different review of that. But we will be going into that after this amendment's finished here this morning. So thank you for your comments. And there were at least a couple other speakers. MR. ANDERSON: Good morning, Mr. Chairman, Commissioners. For the record, my name is Bruce Anderson, from the Roetzel and Andress Law Firm. I am here on behalf of two clients. Initially I'll address some issues on behalf of the Bonita Bay Group. After I explain what my issues are, then I have some proposed language to put on the visualizer. In addition to -- and this follows up on your comments about stormwater. In addition to passive recreational uses, allowable uses do include receipt of stormwater under another section. The language that I'm going to show you in a moment, I propose Page 37 September 26, 2008 to add a sentence in paragraph H in the very beginning that recognizes that stormwater is an allowed use in addition to passive recreational uses. One can't characterize stormwater as a passive recreational use. CHAIRMAN STRAIN: Before you go too far, and I don't mean to interrupt your train of thought, but if I don't ask you, my train of thought is going to go out the door. So can you explain that statement, why stormwater is a recreational use? MR. ANDERSON: No, it's not. CHAIRMAN STRAIN: Okay. MR. ANDERSON: It's not, and I want to make that clear. That's CHAIRMAN STRAIN: Gotcha. Okay. MR. ANDERSON: The Bonita Bay Group wants -- you know that they are very environmentally conscious. They like to have preserve areas. And they like to provide their residents with access to them. And they're concerned about this language, that it is going to prohibit or strictly -- or be very restrictive. I have some language that will allow bike paths and trails, whether they're pervious or impervious. And I'd also propose to strike the language that references pathway barriers and pathways being required to be at natural grade. Both of these would impede the usability of pathways. I also propose an amendment to paragraph a.iv to use the same language that the Growth Management Plan does, that passive recreational uses cannot cause harm to listed species. The Growth Management Plan standard is not, quote, interfere with, unquote, as proposed in this amendment. Unrelated to Bonita Bay Group concerns, I also propose an addition to the last sentence on Page 199 that states, or where there are preexisting improvements. That additional language is needed, as was discussed earlier, to avoid creation of nonconformity in projects that may come in for a development order that triggers application of new Page 38 September 26, 2008 preserve standards to a project that's already under development. And I'd like to show my proposed language on those. Our additions are shown in blue, and proposed deletions are shown in red to the text that was proposed in the staff report. CHAIRMAN STRAIN: Well, let's start with your first sentence: Additional receipt of treated stormwater discharge. Weare going to be addressing that stormwater item, and it will be 3.05.07, just the reference you say. Why would we need to reinsert that reference to the reference that's within that document already in that sentence there? Why does it need to be stated -- restated -- MR. ANDERSON: Cross-reference. CHAIRMAN STRAIN: Then wouldn't we have to cross-reference every item in this whole section? I mean, I don't see the need for that. I'm not saying I'm against anything, I'm just saying why -- this redundancy is becoming part of the problem in our code, and that just seems to be redundant to the obvious. If it's in the section, it's there. MR. ANDERSON: Okay. It falls within the section. The overall heading of the section is passive recreational uses. That's the first sentence in there. It makes no reference to stormwater. And the way stormwater is listed under here, under the two small i's, it falls within the ambit and coverage of a recreational use. CHAIRMAN STRAIN: Well, maybe, Steve, instead of doing it that way, and that's a good point, why don't we have another -- we have little h up there before the word allowable, why don't we have another section starting with i, and under it have design standards for stormwater in preserves? And then we have a clean section to go to and we haven't got to have a double dipping more or less of language in this. Is that -- Ms. Caron? COMMISSIONER CARON: Yeah, I think that's what we were Page 39 September 26, 2008 talking about with Mr. Y ovanovich as well, was to clean up the whole thing and make it read so that it's readable. CHAIRMAN STRAIN: And Bruce, the strike-through red that you have there? MR. ANDERSON: Yes, sir. CHAIRMAN STRAIN: Our previous suggestion was to strike the language that starts with the word cause and replace it with the language that's in the GMP. MR. ANDERSON: Yes. CHAIRMAN STRAIN: Then it mimics the GMP. And I don't see why that wouldn't -- MR. ANDERSON: No, I agree with your change. This was prepared beforehand. CHAIRMAN STRAIN: And based on the GMP, I think your first i, the following types of passive -- that's consistent now with the GMP, whereas as pointed out thankfully, it was not consistent the way it was originally written. So I do believe that we need to make that kind of a change. The next one, A, I mean, I don't know why we couldn't -- but see, that A is starting to get into the issue we're going to have to have when we define the uses of passive recreational uses. We basically are going to have to have now design standards that address all of those. And this may be a way to start to get into it. I'm not sure it's going to be as applicable to that only, because we're going to have possibly more that we need to consider. So I mean, your point's well taken, the concept's well taken, it just needs to be elaborated on when we finish the passive recreational use criteria. MR. ANDERSON: Yes. And I guess the ultimate question is, do we provide a laundry list and perhaps inadvertently leave something out, or do we use more encompassing flexible language. CHAIRMAN STRAIN: Well, I think we put the best list Page 40 September 26, 2008 possible we can come forward with now. And we have the same caveat we have with the county manager's designee. But then we have limitations to design, which even the designee then would have to amend if they allowed something else that inadvertently was omitted, that design standard would still apply. I think that would get us coverage under any condition then. COMMISSIONER CARON: Closest we're going to get, I think. CHAIRMAN STRAIN: Right. At least in this round. You want to move down your page? MR. ANDERSON: I believe we're on the next page now. CHAIRMAN STRAIN: Oh, you left the rest alone. It's amazing. MR. ANDERSON: Ran out of red ink on that page. Again, I propose to strike, well, paragraph i.iv, or four. Again use the compo plan language: Shall not harm, not interfere with. Paragraph five, that unnecessarily imposes accessibility. CHAIRMAN STRAIN: Well, that again needs to be redefined when we come back with passive uses, and so does number six. Well, number six is that one we talked about. I tend to agree with Bruce, if there is to be elevated pathways from a pervious perspective, not necessarily boardwalks, but say they have to come in with a little bit of limerock or whatever to make it walkable, which is really a benefit to the public. So I think that's acceptable, as long as there's pass-through for surface waters. And I think we can always -- that's doable. Anything else on that page, Bruce? MR. ANDERSON: Just what I've got there in red and blue. CHAIRMAN STRAIN: You need to roll down. We can't see it. MR. ANDERSON: Oh, I'm sorry. Let's go to the bottom, I think. F is -- again expands on your-- CHAIRMAN STRAIN: Right. MR. ANDERSON: -- your direction. Come back with something. Page 41 September 26, 2008 CHAIRMAN STRAIN: That's going to come back anyway. MR. ANDERSON: Paragraph four at the bottom. That is to prevent nonconformities to be created where you've got something that's already built. CHAIRMAN STRAIN: Well, I don't think the intent is to make you tear anything out, so -- MR. ANDERSON: Okay. Now I'd like to address oil and gas issues on behalf of Collier Resources Company. We need to provide some explicit recognition in these Land Development Code amendments that recognizes that oil and gas exploration and field development and production are uses that are not subject to all these preserve restrictions. I have proposed language that I have taken from the conservation zoning district, which allows these uses. The highlighted language is introductory and closing language that we propose to add to the kind of language that's already in the Land Development Code. The very large paragraph that you see there is taken verbatim from the conservation zoning district in how it addresses oil and gas exploration uses and production. CHAIRMAN STRAIN: This is the -- you already handed this out. I believe you already distributed something to us on this the last time Brian was here. Yeah, same stuff, okay. And I certainly don't see -- ever thought the intent was to restrict oil and gas exploration, especially as it was been limited by state and feds anyway. But what does the rest of the panel think? COMMISSIONER SCHIFFER: I agree. MR. ANDERSON: All right. And we may do some tweaking at the request of staff, if necessary. But I think they agree in concept with our language. And I don't believe the county attorney's office has any concerns with it. They've -- they had an advance look at it as well. Page 42 September 26, 2008 CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: But right now this language is not part of the LDC; is that correct? MR. LORENZ: That's correct. Not part of the LDC. MR. ANDERSON: The unhighlighted language is. That's taken from the conservation zoning district. MR. LORENZ: Oh, okay. In the LDC. MR. ANDERSON: Yes. CHAIRMAN STRAIN: Right. But now this, because we're coming up with now design standards very specific, we need to reinforce those standards with this kind of language to make sure this isn't inadvertently omitted by design. Is that a fair statement? MR. ANDERSON: Yes, because you could have a preserve area that is not zoned conservation. CHAIRMAN STRAIN: Absolutely. Anybody else? MR. ANDERSON: And that's all we had on this section. COMMISSIONER SCHIFFER: I just have one question. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: Brian, in the letter you wrote us, you're also requesting a change in another section of the code. That has nothing to do with this? MR. MacKENZIE: Brian MacKenzie, representing Collier Resources Company. No, everything else has been resolved except for this issue with the preserve uses. COMMISSIONER SCHIFFER: Thank you. MR. MacKENZIE: And that language that you're looking at came directly from the Land Development -- it's dispersed throughout the Land Development Code, but that was the most restrictive language we came up with for the HSA's and the FHA's, and that Page 43 September 26, 2008 language was repeated throughout the Land Development Code. CHAIRMAN STRAIN: We worked this out -- this language was worked out at the time we came forward years ago and -- MR. MacKENZIE: Yes-- CHAIRMAN STRAIN: -- I remember you coming back before us. MR. MacKENZIE: -- 2003, 2004 we had a long go-around with everyone, and you had a lot of input as well as one of the commissioners, I think. CHAIRMAN STRAIN: Okay. I'm fine with it. Anybody else, subject to further -- MR. ANDERSON: Thank you very much. CHAIRMAN STRAIN: -- review and everything? Thank you. Are there any other speakers from the public? Ladies first. I know, that can't be that way anymore. Well, too bad. MS. RYAN: Thank you. For the record, Nicole Ryan, here on behalf of The Conservancy of Southwest Florida. The Conservancy did participate in the LDC sub-committee that tried to hash through looking at the intent of a preserve, which is to set aside and conserve native vegetation in its natural state, and then trying to get some of those passive recreational uses in there that would not interfere with the preserve. And so that's why we had wanted some of the narrower pathways. I think that there are concerns if you do start crisscrossing a preserve with boardwalks, with pathways that are impervious, that might not be at grade, you're creating runoff. So all of these really have to be looked at in making sure we do what the preserve is supposed to do, which is maintain the integrity of that natural area. The discussion about the Clam Bay system, I'm not sure that -- I know there's a conservation easement on that mangrove system, but Page 44 September 26, 2008 I'm not sure that that was based on any county requirement of a specific acreage of native vegetation. So I agree with Commissioner Caron that I believe that is a completely separate animal. One thing, there was a discussion, and I think it was very good to point out, that these requirements are strictly for those set-aside preserves under county requirements. And the state and federal agencies are going to have their own requirements. However, oftentimes those overlap, and so I -- CHAIRMAN STRAIN: Slow down a little bit. You're a fast talker. MS. RYAN: So I want to make sure that if the vegetation preserves double as both county and state or federal preserves, that it's understood that county requirements are going to apply if they are more restrictive than what the state and federal agencies require. CHAIRMAN STRAIN: Right, but the county requirements kick in only for those areas the county would have required to be a conservation easement. And the voluntary set-aside of additional preserves, number one, I think from an environmental aspect that's a good thing, we ought to encourage that. And number two, if the public can have more flexible access to those because they're done on a voluntary basis, to me that encourages environmental issues as well, because you're now exposing the public to such issues. So there are some advantages to letting it -- to separating those two out. So I think that's a good thing. MS. RYAN: Yes, absolutely. CHAIRMAN STRAIN: Okay. Thank you very -- and Nicole, one thing though, in your reading of this and as we go through this more, I know we got more today and I know you're very interested in it, this idea that we're looking at the object of passive recreational uses, that's an important concept that was brought forward here today. Because I hadn't realized that word recreational -- I mean, I've Page 45 September 26, 2008 read it but didn't pick up on it. But that does have a different connotation now, and it is in the GMP. So whether we all agree with it or not, we got to look at it under that basis, so -- MS. RYAN: Absolutely. CHAIRMAN STRAIN: Okay, thank you. Are there any other public speakers? Bruce? MR. LAYMAN: Good morning, my name is Bruce Layman. I work with Wilson-Miller. I'm not here representing any particular development interest this morning. I wanted to start off by commending staff by including the potential use of impervious pathways within preserves. I think if there's anything we can do to get people off the couch and into the woods and into the preserves, we're heading in the right direction. I do have some concerns, though, from -- for the restrictions that are placed in the small i through small vi. Rich Y ovanovich made a very important point that I don't think could be understated, that the way that the code is structured right now, that if you don't impact the minimum native preserve and you don't impact listed species, that's the requirement. If you satisfy that requirement, I'm not sure most of these other requirements in the sub i through sub vi would be required. For instance, a maximum width of six feet. There's been a lot of discussion about different uses of the pathways, whether it be pedestrian, maintenance, golf carts, trams. Obviously several of those uses would need wider than six feet. And again, if you go back to the main premise that you don't impact the vegetation or the listed species, I'm not sure why we would want to limit it to six feet. The way that the sub iv is structured, where you're not -- where it Page 46 September 26, 2008 says you can't interfere with any listed species, right now we've got the plant ordinance coming on line that we'll be reviewing later today, or next Thursday or whenever we get to it, and it includes all those air plants, Tillandsias. So in theory, if you're in a preserve and you've got a Tillandsia on a tree, the way that code's written you have to keep the Tillandsia there. And the way this is written here in this code you would have to avoid that tree with your pathway. And we all know that Tillandsias are rather common in this neck of the woods, and I'm not sure we would want to hamstring ourselves by a fairly broad interpretation of protecting all listed species. Now, don't get me wrong, you don't want to go in there and, you know, purposely harm something. But I think that there needs to be some fine tuning of the restriction on the listed species requirement here. Following for the next one, the sub v, talks about putting a post in to prevent unauthorized motor vehicles. I can anticipate that that's probably to keep, you know, dirt bikes and quads and things like that from running up and down the pathways. However, I think that there are motorized uses that would be authorized that could go down there. And I'm not sure why golf carts and bicycles are specifically culled out at being prohibited. As far as I know I've not seen anything that says if -- that golf carts and bicycles by nature either disturb the vegetation below the minimum limit or listed species. So I'm not sure why we would want to cull those out specifically as being prohibited. And lastly -- well, not lastly, second to last, requiring that the pathways and boardwalks -- well, not boardwalks, I'm sorry -- the pathways be at natural grade. Again, raising them -- it's a public benefit. It may make them more accessible year round. I'm not sure that having a raised path would de facto mean that you're harming listed species or detracting from the minimum native vegetation Page 47 September 26, 2008 requirement. And then lastly, there was discussion under the sub three at the bottom of Page 199 regarding walls needing to be 10 feet set back from the preserve limit. Oftentimes walls are used as a way to minimize wetland impacts. So effectively when you get your state and federal permit, the preserve boundary is the toe of the -- is the base of the wall. So artificially saying okay, now your preserve has to be 10 feet essentially out into the approved Water Management District preserve in order to qualify for -- as county native vegetation preserve, I don't think that's necessary. I would -- I guess I would suggest that have the preserve be the toe of slope of the wall and have a restoration plan in place when you go through the county review process so that after the wall is constructed you refurbish what may have been damaged during the construction of the wall. And that way too, the preserve limits for the county and the preserve limits for the Water Management District would be consistent, and it would be of a lesser expense for the applicant. So anyway, I know I covered a lot of stuff. I don't know if you want to roll through the various comments, but that's what I have for this particular -- CHAIRMAN STRAIN: Okay, thank you. I think most of your comments we've already addressed and they're going to have to be addressed before this comes back. So appreciate it. Steve, one question. Your attempt to define the standards for passive uses, could it be assumed that if someone kept to these standards they would then qualify for as not having caused harm to listed species? Except for locational criteria, meaning a path can't be underneath a bald eagle's nest or something like that. But-- MR. LENBERGER: Right. Page 48 September 26, 2008 CHAIRMAN STRAIN: -- if you weren't specifically within an area of a bald eagle's nest or running over the top of a gopher tortoise burrow or you kept back to the standards that you've listed here, would this be then something that someone could rely upon as being acceptable then to this language? Because maybe we ought to reverse what you're trying to write. Instead of writing standards to minimize or to maximize certain uses, minimize certain points, why don't we just make a list of design standards that are acceptable and meet the criteria, with the exception of a locational issue that could arise from the bald eagle's nest or gopher tortoise burrow or something like that. Why don't we reverse the method in which we're trying to look at this. MR. LENBERGER: Are you just referring to the listed species? CHAIRMAN STRAIN: Well, under your passive uses are allowed within preserves, and these are all design standards for how those passive uses could be built. And one of my questions really is now, listening to the various speakers is, are these now items that if someone were to adhere to them, they would be able to know that that criteria then is acceptable pursuant to this section and they wouldn't have to worry about getting turned down for any other reason? Is that -- MR. LENBERGER: Well, yeah, they would be acceptable. Only some places we've limited -- placed restrictions on size and things of that nature, but others we haven't. CHAIRMAN STRAIN: Well, the reason that's important is, as Bruce pointed out, if we leave it just as this first paragraph H states, that it won't reduce the minimum vegetation or cause harm to listed species, then it's a free-for-all for each individual to determine what that is and submit it to your department. It would seem there's more than a likelihood that they could be turned down because there aren't any standards that are acceptable as a Page 49 September 26, 2008 minimum. And we turn around and have a debate then over what causes harm and we eventually bring more paperwork to prove one side or the other. So in a way some of the standards I think are beneficial for both sides, because they give you a minimum standard that is acceptable to those interpreting the code and let the public know up front what they can expect as a minimum. But if they want to go further, then they have to get into this higher level of scrutiny to prove it. Is that a concept that -- a fair concept to go by? MR. LENBERGER: I understand what you're saying. CHAIRMAN STRAIN: Okay. Mr. Hancock? MR. HANCOCK: Good morning, Mr. Chairman, Commissioners. Tim Hancock with Davidson Engineering. Not here on behalf of any particular property owner but as someone who participated in about a half dozen of the stakeholder meetings. The make-up of those meetings primarily were two or three representatives from the Conservancy, about a half dozen representatives from what we call the development community but I prefer to call property owner representatives, and a couple members of staff. When we started talking about pathways in that committee, there was a disparate difference. Part of the committee wanted zero pathways, unless they were pervious, and another part of the committee said well, wait a second, what's wrong with what we have now. And what we ended up with in the primary element of that discussion was dealing with the issue of pedestrian use within the preserves. We really didn't take on, you know, Clam Pass or golf cart applications or whatnot. I think the focus was more the average person who wants to walk or ride their bike and enjoy the preserve, and how can we do that. Page 50 September 26, 2008 Mr. Chairman, I think your change or recommended change to allow for flow underneath the path is a good one. I live in a community with a four-foot sidewalk through a 21-acre preserve, and my morning runs in the summer become something like a steeplechase. And it also undermines the limerock and causes increased repair of the sidewalk within the preserve because of the standing water. So I think you might actually reduce long-term impacts by allowing those to be elevated somewhat so that sheet flow can occur underneath them. The only thing I wanted to ask is to hit on the issue that we've discussed about the pathways shall not harm any listed species. I still find that to be incredibly nebulous. And I think if we are going to go to the extent of the degree of standards we have here, certainly I would hope that application of those standards would in itself mean we have done no harm. So I think that is the correct approach on that. And the last thing I want to mention is under item H.I.A.i, where it says pathways shall be limited to provide access. And there's this big concern about elevated pathways spaghetti-ing all over these preserves. Mr. Strain is aware, these pathways are extremely expensive. They are not inexpensive to install. And I think the idea that someone is going to crisscross a preserve with a multitude of elevated pathways is a little bit like trying to put a dress on a fairy. I'm not sure the problem exists. So do we really need to regulate something that doesn't seem to be occurring of any magnitude out there? CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Well, only Mr. Hancock, I would only say we had an example. Mr. Lenberger said that's an issue right now in front of him. So somebody's thinking it's a great idea and somebody's thinking Page 51 September 26, 2008 it's not terribly expensive, because apparently there is something before staff right at this minute. I have no idea what that is, but apparently that's the case. So-- CHAIRMAN STRAIN: Is yours an elevated-- COMMISSIONER CARON: -- the bad apple has shown up. MR. LENBERGER: It was a product that we had maybe a year or so ago, I don't remember exactly. I believe it was boardwalks, but it was a smaller preserve. So the expense of building a lot of trail through it wasn't an issue for the developer. MR. HANCOCK: My other comments have been addressed, so thank you. CHAIRMAN STRAIN: Thank you. MR. YOV ANOVICH: May I make one more comment? CHAIRMAN STRAIN: Sure. We want to hear all the comments. If there's anybody else after Mr. Y ovanovich, you're more than welcome to speak on this issue. MR. YOV ANOVICH: Ms. Ryan triggered a thought in my mind and an interpretation I've had in the past. The concern I have is the whole idea of what is a preserve that's subject to these standards. You know, the Clam Pass area was required to be conveyed to the county pursuant to the PUD. I have been given the interpretation from environmental staff that if you identify a piece of property with a P on it in your PUD, that is, quote, a county required preserve. So these regulations would apply to every PUD provision with a P on it or a conservation subdistrict within that PUD. So that raises the whole concern of what does this apply to, what doesn't it apply to. And I would still have that same concern that I raised earlier for the Clam Pass system, because I really just don't know how it would be treated under these regulations. CHAIRMAN STRAIN: Well, I think that can be further cleared up with the revised -- and certainly when you come back, Bill, if that Page 52 September 26, 2008 issue needs to be clarified, it should be. MR. LORENZ: Yes. And let me look at Rich here to get a head nod or something. The way at least what I'm hearing is, in terms of the approach that we would take is that whatever is a preserve that's required to meet the minimum standards, we've requested that that be set aside as a preserve, and that's where the county's conservation easement dedicated to the county would apply. If an applicant wants to set aside other areas that would be essentially preserved areas, but -- or retained native vegetation, we're not requiring them to put a conservation easement on those areas, and we would simply treat those as open space, or whatever the PUD would allow. And that's how I would try to cut this in writing the regulations -- CHAIRMAN STRAIN: I think there's a retroactive problem. MR. YOV ANOVICH: That's the issue, is -- CHAIRMAN STRAIN: Because we have now huge PUD's out there that have given up what they consider preserves in order to get approved. But some go far beyond the county's minimum standards. Now, what does that mean in context of the language you're trying to develop here? And I think you need to come back with a way to address that. MR. LENBERGER: Okay, I understand that now. MR. YOV ANOVICH: Because I believe there's somewhere in the LDC that requires if you've identified within your PUD an area as preserve -- and this applies to older PUD's, because this requirement I think is fairly new -- you now are required to give the county a conservation easement over all of that. And it may -- and again, you're not thinking at the time that okay, I was only required to do 200 acres, I put 500 acres in, and now all of a sudden I have to give the county a conservation easement over all 500. I now have somehow hindered what I can do within the 300 Page 53 September 26, 2008 extra acres. CHAIRMAN STRAIN: See, this is a good opportunity to clean up all these ambiguities that have existed and finally get everything on the table and possibly do it right. Now let's just hope we can get there. Are there any other speakers on this matter? (N 0 response.) CHAIRMAN STRAIN: Steve, we're going to take a break here as soon as we get the last speaker on this. MR. LENBERGER: Okay, I need direction here regarding bike paths. It was discussed, and I just need direction. With the stakeholders, we had different opinions on whether they wanted bike paths and impervious. I originally proposed some language that got kind of taken out. And I see it presented here in a couple different arguments. I just need to know your position on it so when we finish drafting this amendment. CHAIRMAN STRAIN: I'll suggest something. The words that are in the GMP, passive recreational uses, until those are defined, I don't think you can do anything with bike paths at this point. Because if you don't have a -- when that definition occurs, which will hopefully be today or next week, then you'll have a use in which you then have to design the criteria. And then from there I think you just need to come up with what bike path limitations ought to be, if that's included as a passive recreational use. It no longer becomes a matter of debate on whether it's allowed in the preserve or not. If it meets that definition the GMP says it is. So now -- then we've just got to deal with it. MR. LENBERGER: Okay, thank you. CHAIRMAN STRAIN: So is that -- okay, with that, we will take a break. Oh, Mr. Schiffer, before we take a break? COMMISSIONER SCHIFFER: Did we resolve the ability to transect, to go through the preserve? Page 54 September 26, 2008 MR. LENBERGER: The access issue? Yeah, we have to address that. COMMISSIONER SCHIFFER: So you're going to allow that now? MR. LENBERGER: I would have to defer to management on what direction they want to go to. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLAT: Yes, Steve, under your pathways there, the prevention of unauthorized motorized vehicles. Does that include wheelchairs that are motorized? MR. LENBERGER: No, it wouldn't include anything -- it wouldn't restrict any ADA requirement. COMMISSIONER KOLFLAT: But there's no statement to that effect. This could be interpreted they would also prohibit that. MR. LENBERGER: We'll make sure that's addressed. Thank you. CHAIRMAN STRAIN: Okay, if there are no other questions, we'll end up -- this will finish with this one for this morning, and then when we get back we'll go into the stormwater one. Let's come back at 10:20. Thank you. (Recess. ) CHAIRMAN STRAIN: Okay, everyone, welcome back from our break. When we left of, we had finished talking about the section on preserve uses, and I think staff has more direction now to more forward with that in some manner of form. And the next item on the agenda is in our packet, Page 201, Section 3.05.07 H.l.h.ii, and it's stormwater in preserves, which as we learned was a subset of the section we just read, and may have (sic) now be a section of its own by the time we reformat and get done here today. So with that, we'll start on Page 201. Page 55 September 26, 2008 And Steve, do you have any opening comments that you'd like to relay? MR. LENBERGER: Thank you. I put the GMP language on the visualizer. The amendment is to address treated stormwater discharge into preserves so it doesn't result in any adverse impacts to naturally occurring native vegetation, to include the loss of the minimum required vegetation and the harm to any listed species, according to the policies associated with Obj ective 7.1. And we could -- did you want me to talk a little bit about it, where we've come since then, or you want to just go page by page? How would you like to -- CHAIRMAN STRAIN: Well, probably be more productive to go page by page. So why don't we just start with Page 201. First page, anybody? (No response.) CHAIRMAN STRAIN: Steve, I've got a couple questions. MR. LENBERGER: Sure. CHAIRMAN STRAIN: When this goes to the Board of County Commissioners, I would hope that we'd want to be as accurate as possible. And under the change section on Page 201 it says -- it talks about additional stormwater that will either benefit the preserve or will have no negative impact. But doesn't -- based on the language you have here, don't we really want to say that -- include no loss of the minimum required vegetation and no harm to any listed species? I mean, the words -- I'm just wondering if that's the right verbiage to use there. MR. LENBERGER: We can plug in the GMP language, that would -- CHAIRMAN STRAIN: I think, if that for consistency. I mean, I know it's not a part of the text, but I think that would help. In your fiscal and operational impacts, the only thing you might Page 56 September 26, 2008 want to consider there is if the stormwater isn't allowed in a preserve different than any other -- pursuant to any changes we may make, is that going to require additional acreage? And if so, there is a cost involved. So we may just want to make a note of that. Someone who is developing a piece of property is going to have still put their stormwater somewhere. MR. LENBERGER: I understand what you're saying. CHAIRMAN STRAIN: It's just a minor point, so -- just a suggestion. Page 202 is where we get into the meat of the text. Questions on Page 202? Ms. Caron? COMMISSIONER CARON: Yeah. Under A, where we are referencing South Florida Water Management District. Just curious, are their standards always the strictest standards? I think Collier County may have some language that's actually stricter, and we should reference that. Our stormwater has to be treated to 150 percent. MR. LENBERGER: Right. And it's in there. And meet the requirements of the interim water management regulations of Section 3.07.00. And they are more restrictive. So it is in there. They would trump the -- COMMISSIONER CARON: Okay, good. Thank you. MR. LORENZ: May I add -- or maybe a suggestion, we did reference the South Florida Water Management District's criteria. And sometimes I'm not sure what's the best way of doing it. We could add simply the language of what that criteria is. For instance, the treatment is one and a half inches of that runoff. So you'd have to provide that language, or very explicit language in here, as opposed to going back to the District, especially since we're 150 percent of the District requirement. That may be a simpler way of addressing it. Page 57 September 26, 2008 COMMISSIONER CARON: I think whatever is simplest and clearest and goes to the strongest standards. MR. LORENZ: We could work up some -- I'm sure this will be coming back. We could work up some alternate language along those lines and see how the practitioners out there and the public comment would prefer it. CHAIRMAN STRAIN: Any other questions on the first page, 202? COMMISSIONER CARON: Well, I have questions on B.2. So you're saying here that it's okay to add treated stormwater into uplands? By their very nature, should we be adding additional stormwater here? I think what Mother Nature allows is probably all an upland can take. MR. LENBERGER: We've had a lot of debate on this topic. And we refer to Duever's study on the systems in south Florida. And basically the study has shown that, you know, southwest Florida in particular has very little topographic relief. It's a very flat place. And the uplands are separated from wetlands by just a foot or two. It's a very low area. And what Duever's study has shown is that some of these upland areas, they do receive water up to a month at a time. And particularly the mesic systems as indicated on the chart by Duever, which I have on the visualizer. The only systems that really don't have any water, standing water, would be the xeric systems on the beginning of the chart. So staff took a look at this information and we looked at the rainfall data, and in the amendment we picked a reference year which is a very average year as far as rainfall. And we wanted to model that to see how many days the water would be at the surface or above the surface of the ground to determine if it would have a negative effect on the vegetation. Duever's study shows that you can have these systems flooded Page 58 September 26, 2008 for up to a month. We picked 10 days, and that's -- I'm trying to see what page that's on. It's on Page 203, iii, in the beginning. It says, demonstration that the upland portion of the preserve is not inundated for more than 10 days during the referenced wet season. F or the purpose of the subsection, the referenced wet season is May, 1996 through October, 1996. In context, inundation means water levels at or above average ground surface of the preserve. So we don't know what effect for sure -- I don't think anyone does for sure, what effects water will have on an upland preserve, particularly these mesic systems. We know under natural conditions they are flooded for up to a month at a time. We picked 10 days as opposed to 30 to have some sort of comfort level to -- so they wouldn't be adversely impacted. Did I answer your question? I'm sorry. COMMISSIONER CARON: No, because you already know that these areas get natural stormwater that into them and can sometimes be there for a month at a time. What you're trying to do is then dump additional. And I don't see where that is an appropriate thing for an upland. Our uplands are fragile enough. Like you say, they're really close to our wetlands, we don't have a lot of give here. And if you're dumping more, than I think you're just -- MR. LENBERGER: I understand that argument. And there's some validity there for sure, and I'm not arguing that. We've heard different arguments on this back and forth. And there are some upland plants, and I've worked at biology a long time in Florida, so I understand there's a lot of plants that are very sensitive. But we were trying to reach a balance as far as these mesic systems which we know are naturally flooded. We look at some plants, particularly in the urban area where the water table has dropped. You know, there are -- a lot of these plants will adapt to a drier condition. So that was a concern too, which is Page 59 September 26, 2008 why we only picked 10 days, as opposed to 30. But then again, in an urban area when you have a preserve, it's a small portion of a product and you develop it, you're putting more concrete, more asphalt around it, that's acting as a heat island. And really, just the rainfall falling on it may not be enough in some instances, particularly if the preserve is very small. It acts as a heat island, it dries things out. So there's different arguments you can have regarding this. But I understand what you're saying about the upland preserves. And I've heard both arguments. Staff is trying to go middle of the road, trying to use the data from the science that we have in front of us that show these systems are flooded for up to 30 days. CHAIRMAN STRAIN: Bill? MR. LORENZ: Yes, just a little bit adding to what Steve said. The idea here is to look at this mesic flatwood system by determination of which of the vegetative communities that we've referenced in the Land Development Code amendment and have the applicant demonstrate to us that for this particular reference year, 1996, that they will have inundations of 10 days or less. So therefore, if a mesic flatwood can be inundated up to 30 days, and they're showing that natural rainfall plus the stormwater runoff is within that 30 days of inundation, then what we're saying is they're demonstrating to us that they are coming within those natural constraints or that inundation constraints for that particular set of vegetative communities. COMMISSIONER CARON: So they're going to come up with some mathematical equation to give you? MR. LORENZ: They will be running through -- typically what is done, they will run through a model, a stormwater model that's very similar to the model that they run for the South Florida Water Management District to evaluate how much rainfall actually runs off into their treatment system and then therefore into the preserve area Page 60 September 26, 2008 after it goes through the full water quality treatment. That's a very similar model that they do to demonstrate for the District that they're meeting their water quality requirements and that they're meeting their flood protection requirements. COMMISSIONER CARON: One more model that mayor may not be valid. CHAIRMAN STRAIN: Anybody else on page -- we're still on Page 202. (No response.) CHAIRMAN STRAIN: Okay, Steve, a lot of -- we have a reason to set aside preserves. Let's pretend that we have no listed species issue. Because if we have a listed species issues, the reason for preserves is obvious. Let's pretend there's no gopher tortoises, no eagles, no anything. We have a preserve requirement. What is the purpose then of our requirement? It isn't to save a species, because the species aren't present. So what is the purpose of our preserve requirement? MR. LENBERGER: To save indigenous vegetation in a natural system. CHAIRMAN STRAIN: Okay. In the urban area -- and you alluded to it earlier when you said the water table has changed. In Golden Gate Estates, for example, where I live, everybody knows the mistake the Corps made decades and decades ago when they allowed all the canals to be dug and everything was drained. We no longer have a natural system. We may go out there and we may think we live in a natural system, but honestly we don't, it's gone. In the urban area, it's the same way. We've got everything-- runoff is changed, everything is moved around. And I think I still see the need to have the preserve requirement. But in the urban area and other places where the natural system has been permanently altered, and there's really no way of reversing it Page 61 September 26, 2008 without moving people away, it would seem that we've now -- it's more of an open space requirement through the process of being a preserve, saying save the native species in preserves, but really what you're doing is adding another demand for more open space. And I don't have a problem with that. But if that is really what the issue is, in those locations in sizes that are particular to the urban area, and actually my example, if the stormwater in that particular case changes the regime of an uplands preserve because the stormwater is more present more commonly than would be naturally, we're already not working and functioning naturally to begin with. But if we now allow the stormwater, but yet the requirement is to retain native species to a point where if it's proven that the stormwater has been detrimental by a die-out, wouldn't we be able to then require native species to be replanted that could survive in that atmosphere, or in that new regime, the new water? I mean, maybe we ought to be looking at trying to do something like that, because the practical application of keeping nature natural in an area that's already proven to be unnatural and radically changed from what was, maybe our better bet would be to say okay, we can accept this. But if it has to be this way we have to monitor, and through the monitoring process you have to replant it with native species so that even if the regime changes from xeric to hydric, at least you've got a species of native material that survives and you've still got the open space, which was probably part of the goal to begin with. Is that a reasonable conclusion that we could look at or that somehow is looked at through all this text? MR. LENBERGER: Well, the idea of the amendment is to try to save the preserve as is, but we don't want to alter the vegetation type. We do have some monitoring we're proposing, and we are requiring compatible vegetation be replanted if it should die, through that, and it's in this amendment as well as the preserve management plan amendment, which you've already heard. Page 62 September 26, 2008 Although it isn't a completely natural system, a lot of plant communities will adapt over time. They're less adaptable to sudden shocks, but over time they do adapt. So the idea of this amendment is to try to retain the vegetation, to not harm it. And I believe that's what staffs looking at. We don't want to see it altered. CHAIRMAN STRAIN: Well, I'm not in disagreement with you, Steve. But from a practical application, we have areas of the county that are virtually untouched by long-term alteration, like Golden Gate Estates has had, and like the urban area has had. And those are called the rural fringe and the stewardship area. And in those areas we've instituted some very strong environmental protection to a point where we've got a large amount of the environmental community working well with the changes that are going on out there. That's not a bad thing, and that's an area that can take the kind of insistence that we don't look here to put stormwater. And we certainly don't want urban sprawl, and we can do that in areas like there. Whereas on the other hand if we put too many restrictions on areas that we know have already been altered, can't ever go back to the way they really were, and don't accept the fact we can put some stormwater in them, still retain native vegetation of some type if they change in the limited areas, and then keep the density high in the areas that are already destroyed, to me that might be a good resolution, not a bad one. And I'm just thinking out loud, because I know there's going to be a lot of speakers on this issue. But I think the issue really is territorial. And it may be the territory is the urban area versus the non-urban area. And if we start looking at it that way, which these documents don't seem to look at it as much that way, maybe then there's more a latitude in considering the stormwater in upland and preserves. Page 63 September 26, 2008 And I'm not saying across the board, I'm saying we ought to look at size and location, the type of soils and deviation processes in case there are deeds for those. And then of course our county standards as pointed out by Ms. Caron need to supercede the South Florida standards. I fully agree with that. And then whether or not species are present, even in the urban area, becomes a big concern in changing the regime. And if that's the case, then the regime shouldn't be changed if species are present. Those are criteria that I think we haven't fully come into play yet in this language. Ms. Caron? COMMISSIONER CARON: Well, you've got a deviation process here if you continue to go on through -- CHAIRMAN STRAIN: I didn't say it wasn't there, I said we ought to -- well, go ahead. COMMISSIONER CARON: No, I was just saying, I think we just haven't gotten there yet. CHAIRMAN STRAIN: No, I think we have a half -- there's a series of things that if we were to approach them, maybe there is some latitude to be used. I just don't know if it's all been addressed adequately. But we'll get through that as a step-by-step process. On page 202, did anybody have any other questions? Because I've still got to get into mine. (No response.) CHAIRMAN STRAIN: Item B, the last sentence: The hydric nature of the soils must be field verified, and then the words: By an environmental professional using the methodology in Chapter 62.340. If it's consistent with the chapter, do we still need the reference to the by an environmental professional? Because I don't know what that is. I see too many people that claim that they're environmentalists and that they're -- but I'm not sure they're professional, and I'm not sure you have criteria that defines what that professional is. Page 64 September 26, 2008 So do we need that language referencing an environmental professional? I don't want to dilute your purpose -- MR. LENBERGER: I think it'd be fine. As long as someone is capable of using the wetland delineation methodology, we're fine with it. CHAIRMAN STRAIN: And I'm just wondering how you would prove they weren't professional if they are. MR. LENBERGER: That's fine. I don't think that's going to hurt anything -- CHAIRMAN STRAIN: Under C.i, no protected or listed species are present. If you turn to the next page under D, there you're talking about stormwater may be discharged in a wetland portions of preserves with listed species -- and you use the word shall have no negative impact, and I'll get to that language when we get to that page -- on those listed speCIes. So is that a contradiction? MR. LENBERGER: The original language was talking about upland listed species in C on Page 202, C.i. CHAIRMAN STRAIN: Right. Mine doesn't say upland, mine-- MR. LENBERGER: No, it was on the original language when we drafted it. I think the intent is to alter vegetation which would affect those listed species such as an eagle nest, such as a cavity of an RCW, red-cockaded woodpecker. I think that's the intent there. CHAIRMAN STRAIN: But doesn't the GMP refer to it as will not cause any harm to any listed species according to policies associated with Objective 7.1? MR. LENBERGER: That's exactly what it says. CHAIRMAN STRAIN: Right. And is that different than saying no protected or listed species are present? Because one seems to provide latitude if you can prove there's no Page 65 September 26, 2008 harm. But the other doesn't even allow you that flexibility. Are we going beyond the GMP in that "i"? MR. LENBERGER: I would have no problem using the GMP language. Let's just ask management if they have any objection or any comments about that. CHAIRMAN STRAIN: I'm just saying if we have the GMP language, we ought to stick to it, is all I'm trying to get to. And Bill, is that -- is my comment valid in this reference? MR. LORENZ: I think the Objective 7.1 requires certain-- policies within Obj ective 7.1 identify certain default standards or guidelines for listed species in the policies. It also identifies technical assistance to be utilized by agencies with regard to listed species. I think this goes on to say, as determined by criteria set forth in the land development regulations. And these are the land development regulations that tries to pull all of that together. We did make a distinction -- and I'm not answering your question directly now, but we did make a distinction between upland species and wetland species with regard to stormwater in the preserve, because certainly we recognize that in wetlands and where there's -- you're rehydrating a wetland preserve, that wetland preserve can very well be utilized by listed species. So in that particular situation we don't want to preclude water going into the wetland simply because there's wetland listed species for that particular location. The upland areas for listed species concern is a little bit -- I'm going to call it a little bit iffier, because we are putting stormwater into an upland preserve. There is -- we don't have a hundred -- I can't say that we have 100 percent confidence that that native vegetation is going to be completely protected. But these criteria that we've identified gives us a high enough comfortability that in the absence of listed species that certainly we're Page 66 September 26,2008 recommending these set of amendments to be determined -- to be approved. But getting back to your question about the Objective 7.1, if we wanted to provide additional language in the code that allows for technical assistance, in other words, you could allow it to go into a preserve with listed species, subj ect to affirmative technical assistance, then that gets you a little bit closer to the policy requirements in Objective 7.1. CHAIRMAN STRAIN: All I'm trying to say is C.i is definitive. If there's a listed or protected specie present, you can't do it. But yet the GMP language you have on the board isn't that definitive. It says as long as it doesn't cause any harm basically. And I think -- well, I'm suggesting change it to what the GMP says. It doesn't say no. It just says if you're going to cause any harm, you can't do it. Is that -- that's all I'm trying to ask. Is that a fair interpretation? Anyway -- MR. LORENZ: Yeah. CHAIRMAN STRAIN: -- I think when you come back if you could look at that. I'll ask it again if it isn't resolved. But if it is -- or at least you'll have a better response then. But C.i, I'm just suggesting if the GMP doesn't say no, then I don't know if we can say no in the LDC. And we should use the same language in the GMP. Under ii, you have a series of criteria there. I'm not objecting to your criteria, but I'm trying to define them. And it's under paren one: Does not contain xeric oaks, including Myrtle oak, Live oak and Sand Live oak, with scattered patches -- now I'm not sure what scattered is -- of mostly bare -- I'm not sure what mostly is -- bare white sand -- and how bare is the bare white sand to be -- and a very scattered -- that's compared to just scattered -- overstory of slash pine. Those are very ambiguous terms to use. And I'm just wondering Page 67 September 26, 2008 if you could use them -- put in percentages or doing something that gives more definitiveness to it. And then number two says, a closed canopy. How closed is a closed canopy? And I understand what the word means, but I know that there's no canopy that I've seen in Florida that's fully closed. The rain forest in the Amazon I understand has some, but I'm not sure we have them here. It goes on in that sentence and talks about scattered overstory again with little groundcover. Those are such ambiguous terms, I'm concerned that interpretation of those could be wide range, and that's not what we're supposed to be doing. So if there's some possible way of tightening that up, I think it would be beneficial to everybody. MR. LENBERGER: Those descriptions are -- I put them on the visualizer -- came from Duever's study. Those are descriptions of your driest xeric environments. And that's where they came from. CHAIRMAN STRAIN: That's fine. But their -- I don't know if that -- they were written for code, which makes it a little hard -- odd to enforce. MR. LENBERGER: We can use the word xeric and look into changing that. But I just want you to understand where it came from. It is the driest environments where you wouldn't want to have stormwater -- CHAIRMAN STRAIN: If it would help to institute a definition for xeric and then go into that as part of the definition, maybe that is a way to -- and I certainly would ask legal staff to review it before it comes back to us. But maybe that's the way to resolve it. Go ahead, Mr. Lorenz. MR. LORENZ: This may be something for -- I'm sure some of the practitioners may have some public comment on this, but we could go back to the actual FLUCCS, the Florida Land Use Cover Forms Page 68 September 26, 2008 Classification System and specify those numbers, because at least they are available in the -- that's what typically the consultant does and it provides vegetative communities. We thought we would -- that's one alternative. This alternative was to try to get a little bit closer to what the study report that we were working with to help develop this little bit of a course of action here. So that's something that we may want to hear some comment from the practitioners. CHAIRMAN STRAIN: Okay. And I think it's -- especially in the context of environmental, the ambiguous ways that things could be taken by different people at different times in review has caused a tremendous amount of disharmony in this community from all aspects, from homeowners down to business people. And I think we could stop that by tightening this kind of language up. So that was my obj ective. Okay, we'll move on to Page 203. Does anybody have any questions on 203? MS. ASHTON: Mr. Chairman, I just comment on Page 202. I just wanted to make a recommendation under Item B, where you removed the language, by an environmental professional for the hydraulic nature of the soils. If you replace that, that it be verified by applicant. CHAIRMAN STRAIN: That's fine. MS. ASHTON: Thank you. CHAIRMAN STRAIN: An applicant is known. Okay, we're on Page 203. Anybody? COMMISSIONER SCHIFFER: I have a general question. CHAIRMAN STRAIN: Go ahead, sir. COMMISSIONER SCHIFFER: Steve, one premise of a good storm drainage is that you don't put water on your neighboring property. What in this kind of protects that? I mean, there's -- since we're going into a wetland, essentially the Page 69 September 26, 2008 wetland probably goes across property lines. How are we protecting adjoining neighbors? MR. LENBERGER: The permitting would be handled by the Water Management District, and that would be up to them on how they determine discharge, and also whether they separate those properties by a berm or leave them connected. I've seen them permitted both ways. But that would be up to the Water Management District. COMMISSIONER SCHIFFER: Thanks. CHAIRMAN STRAIN: Anybody else on Page 203? (N 0 response.) CHAIRMAN STRAIN: Well, we'll start with the top then. On iii, can you explain what that means? It says demonstration that the upland portion of the preserve is not inundated for more than 10 days during a referenced wet season. How do you do that? Wouldn't you have to take years of monitoring and then you wouldn't end up being able to even to apply until you got that resolved? I mean, how would you do that? MR. LORENZ: As I mentioned earlier to Commissioner Caron, there are models -- there are models that the engineering firms use for the South Florida Water Management District in their development of their stormwater management plan. And those models can be utilized for this purpose to determine how many days a particular area is inundated for. In fact, they do that -- they have to do similar analyses when they're identifying how much water is going into their retention systems for water quality treatment, what their bleed down rate is for a particular storm. Now, the District uses -- those models, the District uses return period storms such as a 25-year storm for flooding purposes. This particular model, however, would have to be developed for a referenced year, which is we picked 1996 because of certain Page 70 September 26, 2008 characteristics of that year, that within that wet season, May through October, if you go and input those rainfall amounts for that particular year, it's already tabulated, you put that into your system, you run the model and determine how much water is going into that preserve and how long it stays in the preserve, then you count up the number of days, and that should be according to this proposal is 10 days or less, which is within that 30-day inundation assessment that was established for mesic flatwoods. CHAIRMAN STRAIN: What do you use as a benchmark for that area? In the model, what do you use as a benchmark to establish where the inundation is of true -- is an inundation? MR. LORENZ: The average ground surface of the preserve. CHAIRMAN STRAIN: And the average ground surface of the preserve is based upon what? MR. LORENZ: The elevation surveys that the applicant has provided for his site plan. CHAIRMAN STRAIN: Okay. So the elevation surveys that the applicant provided for the site plan give you the benchmark to start the analysis for the inundation period. MR. LORENZ: Which is the same information that that applicant has to use to make his calculations for storage requirements for his other South Florida Water Management District permits. CHAIRMAN STRAIN: Right. But his calculations and his benchmarks and his topography are on existing conditions today. MR. LORENZ: That's correct. CHAIRMAN STRAIN: With the ground water table altered as it has been in today's world and with the runoff and drainage canals and all the other items that function normally in the urban area today. So you're not benchmarking it back prior to a time when this was natural, you're benchmarking it to a time that was already altered. MR. LORENZ: You're using the same information that the applicant is using for his stormwater management permit from the Page 71 September 26, 2008 Water Management District, and it's setting the control elevation -- CHAIRMAN STRAIN: Right. MR. LORENZ: -- and then at that particular point it's all the other physical dimensions of his site that he's using. Existing -- it would be the conditions at the time of development. CHAIRMAN STRAIN: I understand. And that's what concerns me, because the conditions at the time of development in -- again, I'm back to this location of within the county. Not all locations give you a true picture of the natural conditions. You're getting conditions altered by development, because you're in the heart of development. And sheet flow, for example, doesn't occur like it used to. And if you don't have natural sheet flow and you're at a directional sheet flow as a result of development pushing in a direction, your outcome to this may be different. And that's why I'm wondering why it's so -- how important it is or how valid it really can be. MR. LORENZ: Again that -- I think the validity is measured by looking at that preserve, understanding that it's a mesic flatwood, because that's what we would establish as its characteristics, in that a mesic flatwood has been shown in South Florida to be inundated up to 30 days in a season. So that would not be unusual to see that. So the effort here is to demonstrate through at least this methodology or these parameters that that preserve with natural rainfall plus the stormwater that goes into it would not be inundated for more than 10 days out of the year. CHAIRMAN STRAIN: Why did you pick 10 when I think you just said to me 3D? MR. LORENZ: That's a good point. That's somewhat of a factor of safety, if you want to call it, of backing down offof30 days to 10 days. CHAIRMAN STRAIN: That's a 70 percent safety factor. Page 72 September 26, 2008 MR. LORENZ: Yes. CHAIRMAN STRAIN: You got more than utilities has built into their pumps. I mean, I thought they had a-- MR. LORENZ: I think that that number -- that number can be-- that number certainly is -- well, let's call it a policy number. We could keep it at 30 days, if everybody has a high degree of comfort. And remember that the number from Duever says zero to 30 days. There may be some discussion as to whether that's an average, which means could be above 30 days. But I'm not sure that that -- the way I'm reading the report it's zero to 30 days. CHAIRMAN STRAIN: Ms. Caron? MR. LORENZ: But you could set it at 30 days, if everybody has a high degree of comfort with the analysis. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: I think if you're even going to consider doing this, I think an abundance of caution is necessary. I think the reason they picked 10 days was because in point of fact we shouldn't be doing this at all. And in order to try to come up with some compromise, they're allowing it, but with a very strict standard. You know, personally I -- CHAIRMAN STRAIN: My concern is that we don't have a way of setting a benchmark based on the natural environment because it's not -- some or in all areas of this county. And I still think we need to look at standards for different areas. And the urban areas are far different than the rural area. But I understand your point here. Under D, that language in the third line that says shall have no negative impacts. Doesn't the GMP read does not result in adverse impacts? If it does, we need to change it. If it doesn't, that's fine. I just made a note of that when I was reviewing this. Under F, talks about must address potential maintenance problems and shall also provide for a monitoring program. Page 73 September 26, 2008 Compatibility vegetation must be planted to replace any vegetation that may be lost over time in a preserve. What about our remediation? Is this like a remediation plan if there are problems? So if someone discovers that the uplands are being trashed from the water, then this kicks in and they have to replace them with vegetation that will survive? Is that -- MR. LENBERGER: It's basically a plan that you would have, part of your preserve management plan that if your vegetation dies and the stormwater is affecting it, then you need to restore it to the type of vegetation that can survive. CHAIRMAN STRAIN: Okay. Compatible vegetation must be planted to replace any vegetation that may be lost over time in a preserve. That means it would be whether it's lost from stormwater discharge or for any reason; is that what -- how that would apply -- MR. LENBERGER: We can put due to stormwater discharge or receipt of stormwater. CHAIRMAN STRAIN: If we're looking to make these preserves retain native vegetation, and I think -- say that's a given, say preserves have to have native vegetation. For whatever reason, if they were to die, would we still want that native preservation replaced? MR. LENBERGER: It would depend on what's dying and what percentage then is the plant community changing over time. You have to look at it in biological perspective as far as what's happening with that system, so -- MR. LORENZ: Let me add. Let's make a comparison between let's say a preserve that is not receiving stormwater. We do not have comparable language for a preserve not receiving stormwater to have to replant if there's conditions that, let's say are -- we'll just call it for the moment natural. Unless somebody came in and did something in the preserve unauthorized. F or the preserves in this stormwater section, preserves receiving Page 74 September 26, 2008 stormwater, we are saying that as vegetation dies that it needs to be replanted. It's difficult to determine precisely that the vegetation will have died as a result of stormwater in the preserves. That's somewhat difficult to determine. There are some indications that you can see that over time that you may lead you to that conclusion. But we are requiring that any vegetation in preserves with stormwater that's being lost should be replanted. It kind of gets back at that idea again, I can't look everybody straight in the eyes and say we're 100 percent confident that this is not going to have any adverse effects with the preserves. But we think that this does provide for a reasonable approach of having stormwater in preserves that are of a mesic condition that have shown in the case, South Florida, can be inundated up to 30 days naturally. But we also have -- we're hedging our bets. We have a monitoring plan and we have a situation for replacement of vegetation for these particular situations as well. CHAIRMAN STRAIN: Okay, if we move down to H, the fourth line, preserves will receive a benefit, and that uplands and preserves will suffer no adverse impacts that are imposed. I think the GMP reads a little differently. It says, preserves will receive no result in harm. And uplands and preserves do not result in adverse impacts. I mean, just make sure the language is consistent with the GMP and we don't go beyond that. I found that individual words in this particular case have a huge impact. And I don't want to see that inadvertently brought in if the GMP doesn't say it. Any other questions on 203? (No response.) CHAIRMAN STRAIN: We have two sentences on 204. Anybody have any questions? Go ahead, Ms. Caron? COMMISSIONER CARON: Is there -- the only review would Page 75 September 26, 2008 be the EAC? It wouldn't go to the CCPC and the BCC? MR. LORENZ: At the moment, no, the way the language reads. CHAIRMAN STRAIN: I had circled the same thing. I don't believe it should end at the EAC. I think at least it should come to the planning commission. The BCC certainly doesn't need to hear a deviation from us unless it's appealed. COMMISSIONER CARON: BZA. CHAIRMAN STRAIN: BZA, whatever way it would be. So I would think you'd want this board to opine on it as well. And to have the benefit of the EAC isn't a bad thing either for us, so -- okay? The last think I have and I want to ask about, are there alternatives to stormwater runoff that we could encourage and actually provide incentives for, such as grass parking spots and swales with percolation instead of curbs and things like that? Have we looked at doing alternatives to help reduce stormwater needing to go into preserves by allowing things like that to offset it? MR. LORENZ: No, we haven't. CHAIRMAN STRAIN: Wouldn't that be something that we-- could we consider something like that or could we look at that? I mean, if that's one way to off -- if someone wants to dump water in a preserve, but in lieu of that we allow them to use grass parking spaces or swales, it may be more beneficial for them to do it and they may not then even get into the controversy of dumping stormwater in preserves. MR. LORENZ: Well, that's a very -- kind of want to say huge initiative for us to take a look at. I can say that we are working through the watershed management plans and we'll be developing -- through the watershed management plans it would be your best -- your basin management action plan for addressing TMDLs, total maximum daily loads, which is your pollutant sources. Page 76 September 26, 2008 And through that exercise, that can be looking at some alternative types of approaches for stormwater management within that watershed management plan context. I can also tell you that the state is developing -- is in the midst now of developing a stormwater rule that would have those types of elements in it, and then that would be applied statewide. And so we might be looking at something somewhat duplicative of what the state is going through. CHAIRMAN STRAIN: Well, it just seems if the idea is in some cases that stormwater in preserves is not the best thing, if we can come up with viable alternatives that can help us, give us more areas to perc, actually create more open space or green open space instead of asphalt, that could be a huge advantage, not just from stormwater in preserves but from a lot of other aspects as well. And we might -- seems like a good thing to look for. MR. LORENZ: Yeah, I certainly understand that. CHAIRMAN STRAIN: Any other questions on the last page of this section before we go to public speakers? (No response.) CHAIRMAN STRAIN: Okay, members of the public that want to speak, fight over who comes up first, but go for it. Bruce, you're the first one standing. MR. ANDERSON: Also the last. CHAIRMAN STRAIN: Also the last? I don't think so. MR. ANDERSON: No, last man standing on this one. CHAIRMAN STRAIN: So you're saying Nicole's -- okay, that's a good point. MR. ANDERSON: Right. Mr. Strain, I just want to reiterate some of the points you made where there are inconsistencies with the language in the Comprehensive Plan. Page 202, paragraph C.i, where it says, no protected or listed species are present. It should read, does not cause harm. Page 77 September 26, 2008 Next page, paragraph D, have no negative impact. Again, the standard in the Comprehensive Plan is not harm. And the last one, which you also caught, was paragraph H at the bottom, will receive a benefit, that is not found -- that language is not found in the Comprehensive Plan either. It just says that it will suffer no adverse impact. That's all I have, thank you. CHAIRMAN STRAIN: Thank you. The fact you didn't have very much, that must mean there's something else wrong with this, so COMMISSIONER CARON: We'll look at it doubly hard. CHAIRMAN STRAIN: Yeah, we're going to look at it harder. Mr. Hancock, welcome. MR. HANCOCK: Thank you. Again, good morning, Commissioners. For the record, Tim Hancock with Davidson Engineering. Many of you may remember when I appeared before you on behalf of New Hope Ministries and their rezone petition. And one of the critical issues for them was stormwater management in the preserves. We did a lot of work trying to reach an agreement with staff on what standards were appropriate and what were not, and this body passed that forward with a recommendation of approval, and ultimately the project was approved with stormwater management in preserves by the Board of County Commissioners. As I look at the -- and we went through that kind of looking at that as a test case, what can we do with respect to that particular proj ect that we can carry over into future proj ects where we can build in the safeguards that we feel are appropriate. So let me start with on Page 201, you hit on this briefly under fiscal and operational impacts. I do believe the last sentence of that paragraph should read that restrictions on the types of preserves which can be used for stormwater management will have an adverse impact Page 78 September 26, 2008 on applicants who want to utilize their property, period. If you take stormwater management out of preserves entirely, out of any upland preserves, that simply means that it will take more land to handle stormwater management and therefore will have an adverse impact on the development value of that land. I want to remind everybody that two years ago, when we first started talking about this in any detail, the water management standard for pre-treatment was 100 percent. The District now requires 150 percent, as does the county. That's a significant step in pre-treatment. When we talk about stormwater management in preserves, 100 percent of it must meet that pre-treatment guideline. So as we go through this, please keep that in mind. We're dealing with a significantly higher standard in water management across the board for pre-treatment before these are ever applied. My next comment is on Page 202. We may have a potential conflict under Item 2.B. We have several projects where the South Florida Water Management District has permitted stormwater management in a preserve where non-hydric soils are present. And this may very well conflict with a permit issued by the District. I want to raise that as a possible conflict. Secondly, Item C.1 -- CHAIRMAN STRAIN: Before you go too far, can you tell us a little more? This says that, may be discharged into portions of the preserves that are comprised of -- and it lists all the -- just about everything, in accordance with South Florida. How do you come to a conflict with that? MR. HANCOCK: Well, the conflict actually occurs later when you get into C, when it says may be discharged. We may have a permit from the District that says we can. CHAIRMAN STRAIN: Okay, you had directed us to B. So your concern is with C. Page 79 September 26, 2008 MR. HANCOCK: It's kind of the setup to C. CHAIRMAN STRAIN: Well, let's get specific, though. We can't fix things or we can't understand things unless we're specific. So in C, where preserves include non-hydric soils and uplands, stormwater may be discharged in the preserves, provided the following are met. The may is saying you can do it based on the following criteria. Your problem is the following criteria? MR. HANCOCK: Yes, sir, under Item i. It says -- CHAIRMAN STRAIN: The one Bruce and I both and this board has already suggested be changed to be consistent with the language in the GMP? MR. HANCOCK: That's correct. I wanted to draw an example of why that needs to happen. CHAIRMAN STRAIN: But are you upset with the language that's there or the language that we're suggesting as a fix? MR. HANCOCK: The language that's there. CHAIRMAN STRAIN: Okay. Let's assume it's getting fixed. MR. HANCOCK: Okay. CHAIRMAN STRAIN: You don't have an objection then, right? MR. HANCOCK: No, sir. CHAIRMAN STRAIN: Okay. I just wanted to get to the bottom line so we can get all your issues addressed. So, sorry to interrupt you. MR. HANCOCK: Again, I continue to be hampered by making notes prior to the discussion. So my apologies. CHAIRMAN STRAIN: I do the same thing and then I have be redundant sometimes, sorry. MR. HANCOCK: Yes, not thinking quick enough. The biggest issue I have is on Page 203 with Item iii. It's already been discussed by Mr. Lorenz that the -- the Mike Duever report indicates that in the mesic flatwoods -- and Commissioner Caron, I Page 80 September 26, 2008 think it's important that we're talking about mesic flatwoods here, not xeric, because mesic flatwoods are a uniquely different animal. In a mesic flatwood you may have slash pine, but you may have groundcover species that vary from very wet to very dry, all within a mesic. And that's why you see -- if you think about it, a variation within one regime of inundation at the surface between zero days to 30 days at two inches is a substantial difference. And you'll have a very different type of groundcover and midstory in those situations. In other words, you can have a mesic flatwood that has zero inundation. You can also have a mesic flatwood with 30 days at two inches above the surface. Those are not the -- and we talk about regimes. I think we need to talk about them in the sense of them being mesic flatwoods, not being a specific type of groundcover that's consistent within that range. And that's -- and the mesic flatwoods are very malleable. In my conversations with Mr. Duever, he indicated that the report says less than or equal to one month or 30 days. He said but that in essence is an average over a greater period of time. In other words, in wet years and dry years those numbers vary. He came to that because he looked at a broader range of time. Not just -- it's not as if on day 31 everything goes to hell in a handbasket. This is over a broader range of time. And so the concern I have is, that when we put a 10-day total in there, and this is where I have to maybe explain to you how the model can be set up and how it works. It's not an off-the-shelf model. It really has to be fine tuned even from what we've done so far. But with a 10-day limit in the 1996 model year, which was selected by staff, and ironically is the same year we selected when we looked at a 12-month average year -- Mr. Lorenz looked at a wet season average year, we both came up with the same year. It has within it two significant storm events. Page 81 September 26, 2008 In one month during that wet season there is I believe 13.8 inches of rain. There were two major storm events in that month. In another month it has eight inches. There was one significant event and two smaller events. When you set up your model, we are already in the wet season, so let's assume that the groundwater is at the wet season water table. At or close to it. When you have a couple major events back-to-back, you may have a 10-day period just in the 1996 year because of those two storms. When you limit it to 10 days, it is almost a de facto elimination of stormwater management in upland preserves because of the 1996 model year. My concern is that if we do that, then we've just thrown it out. If we're going to throw it out, let's just admit that we're throwing it out. I would like to see that go to the 30 days that the Duever report extensively established. It is the only benchmark that has been scientifically put forward that we can measure against. And let me tell you where the safeguards are built in to the degree I understand them. The way the model works is you have rainfall. If you can picture a bathtub. Your rainfall is pouring into that bathtub. Your water management system has an outfall. That's the drain in the bathtub. The drain's not at the bottom of the bathtub, it's a couple inches above the bottom. The amount of rainfall that comes in in the time frame it pours in will create a head in that bathtub, which affects your outflow in that outfall. As you go through each day in this wet season model, you're plugging water in. So if you can picture the way this would look on a chart is you're having a buildup, if you will, of head of water within your water management system at the same time you're experiencing a bleed down. So there's a standard coefficient there as it builds up and Page 82 September 26, 2008 it bleeds down. When you have significant events that build up far faster and far higher than the bleed down will allow for, you get a spike. The duration of that event has to be plugged in, and you have to use some averages. And then the coefficient of bleed down takes over. And when you have back-to-back events, you have a stacking. As that water rises within your water management system, at some point, because your water management system really should be designed adjacent to the preserve so you don't have berms in between them, and that's we did it with New Hope, at some point as the water rises it begins to bleed back into the preserve. And the reason it does that is because the water table itself has risen because of the rain. As it bleeds back into the preserve, eventually the storm events taper and the outfall rate catches up and the entire water level of the site begins to come down and that water in essence bleeds back to your water management system. There are going to be a lot of times when the area closest to your water management system will have inundation, but it hasn't crept back, if you will, to the far reaches. So there's going to be a variation and a grade in there. That model doesn't really exist. It is -- it can be created. But we have to use some degrees of when we model the storm events how many inches per hour do we use as a model so we have a duration. Those things have to be plugged in. And we will continue to work with your staff to clean that model up before the next project comes before you under these criteria. But the reason I think that's important is if you can picture kind of a graph that bumps up and down over the five wet months that we're dealing with, the whole point is how many times does that graph tip above that inundation level at the surface? And if it's only 10 days, the fact that you have two back-to-back events is going to tip it above it no matter what. Page 83 September 26, 2008 And so even though we can show that it's only 10 days, we're well below the Duever threshold of 30, we're precluded from putting stormwater management in that particular preserve. And that's why I would like to see that time frame go to 30. The question you have I think is appropriate. Where is your safety net? And the safety net comes in a detailed monitoring program that addresses elevations of surface water on a regular basis as well as a vegetative inventory. Because a mesic flatwood has a vegetation range, it's not a snapshot in time. And this is the point you made, Mr. Strain. If we go out there today and we take a picture of that preserve, it's not what it was 60 years ago when a normal regime occurred. But it certainly can be a little more wet in this case and still be a mesic flatwood. We're not going to see, if we model this properly and monitor it properly, this changing from a mesic to a wetland. That's a regime change. But if we see that it is getting more wet and that more wet foot plants are appropriate, a monitoring program will indicate that and allow us to replace that vegetation with something that will prosper, as opposed to die off. I believe that is the safety net. The key is to maintain that we stay within the mesic framework and not go outside of that. The other issue we have in looking at replacement is sometimes it's hard to tell what caused it. We can go out there to areas that are not preserves today and we don't know if it's necessarily pine beetle or inundation due to standing water. Sometimes it's hard to place the tag on it. But the fact that you are putting stormwater management into it means you have to monitor it. And regardless of the reason, you can't prove that it wasn't and somebody probably can't prove that it was, you're going to have to address it. And that's a maintenance level that does not exist in preserves that do not have water management today. Page 84 September 26, 2008 The language that we adopted in the New Hope project was that we replace vegetation adversely impacted by the stormwater with vegetation that will be suitable to the future conditions. I think that makes sense. Whatever those future conditions are and why they're being created, that just makes sense to me. So I'd like to see in number three that go up to the 30 days, which again is what is contained in the Mike Duever report, is a standard, is the only standard that is out there right now. And I think it's an acceptable one. And I think the monitoring program details should come back to you in a little more specific form than you see here so that you understand more fully what that safety net incorporates. The last thing I want to point out, this is more of a question. On D, where it says stormwater may be discharged in wetland portions of preserves with listed species but shall have no negative impact on those listed species. If that is a sub -- I don't believe it's a sub of C.i, because those two do conflict. CHAIRMAN STRAIN: Well, that language is changing anyway. MR. HANCOCK: Correct. And that is really everything I had in a nutshell. CHAIRMAN STRAIN: Thank you. Are there any other speakers on this matter? Sir? MR. HUGHES: Commissioners, I'm Bill Hughes, speaking as a citizen of Collier County. I agree with Mr. Strain, the Chair's position, on some of these urban preserves. There is a point of what's realistic and what is not. Second, on the stormwater issues, the main issue in my opinion is the water chemistry and the effect on the estuaries. The monitoring program is necessary and, as indicated, some of these things did not exist in the past. As a result, I believe some of our current condition is Page 85 September 26, 2008 damaged as a result. And I again compliment the panel here today for your awareness of this and your insights. Thank you. CHAIRMAN STRAIN: Thank you, sir. Anybody else want to speak on this? Nicole, I bet you want to speak on this. You've been awfully -- sitting there without getting up. Are you intending to speak on this, so I don't miss you? Okay. I think we would value your input. MS. KITCHENER: Hi. I'm Marielle Kitchener with Turrell, Hall and Associates, for the record. I just want to preface this by saying for 11 years now I've been doing wetland monitoring primarily in Collier County. And my biggest concern with this is that it seems to be kind of leaning towards eliminating stormwater from going into the preserves. And as you know, most preserves have both upland and wetland areas, some having hydric soils, some of them having non-hydric soils. The preserves that I have been looking after have a tendency already to become less hydric over time. So limiting stormwater discharge into the preserves will not benefit these wetland preserves over time, I don't think. It's-- CHAIRMAN STRAIN: Before you go too much further, and I don't mean to interrupt your train of thought, but it helps me to ask questions as you move along. When you said become less hydric, soil is what it is when it's placed there. How does it become less hydric? MS. KITCHENER: Well, I actually have a preserve, Pebblebrook, where -- CHAIRMAN STRAIN: Pebblebrook? MS. KITCHENER: Yeah, Pebblebrook. CHAIRMAN STRAIN: Boy, that's a great example. MS. KITCHENER: Yes. And, you know, I've been looking Page 86 September 26, 2008 after this preserve for gosh, almost -- well, 10 years now, where there was an area that was considered jurisdictional wetland when it was permitted. And when the new area, Stevie Tomato area went in, it was no longer considered jurisdictional wetland according to the Corps of Engineers. CHAIRMAN STRAIN: Okay, but my question was: How does the soil change from hydric to non-hydric? The Corps may not have considered it any further jurisdictional, but it doesn't mean the soil -- did the soil physically change? MS. KITCHENER: Yes, it did. CHAIRMAN STRAIN: Okay, how? MS. KITCHENER: Basically, it's dried out. The preserve has dried out. CHAIRMAN STRAIN: But it's still hydric, meaning it will perk. MS. KITCHENER: Well, the soil is no longer considered a wetland soil, according to the Corps. CHAIRMAN STRAIN: Okay, that's a lot different than what I-- MS. KITCHENER: Yes. CHAIRMAN STRAIN: Okay, that's where I was trying to go. I want to understand what you -- MS. KITCHENER: Sorry. We weren't connecting, sorry. CHAIRMAN STRAIN: Thank you. MS. KITCHENER: My biggest concern really is just that if you don't allow stormwater into wetland preserves, like I said, and a lot of these wetlands preserves have upland areas in them. I've already -- I've got a lot of issues with my preserves where they're trending towards upland vegetation and they're becoming taken over with grapevine and other upland -- Caesarweed, other pioneer upland species, and it's a real problem. So I don't want to see them drying out further. So anyway, so I just wanted to add that. Page 87 September 26, 2008 CHAIRMAN STRAIN: Thank you. Just side bar. How do you get rid of that grapevine? That is horrible stuff. COMMISSIONER CARON: What do you do? CHAIRMAN STRAIN: It grows all over everything, covers -- I mean, it's just unreal. MS. KITCHENER: There's really not. The usual cutting, burning treatment. Once it's there, it's there. COMMISSIONER CARON: Lifetime activity. CHAIRMAN STRAIN: Yeah, takes forever. Thank you. Okay, you want Bruce to go before you, right? MS. RYAN: Go ahead, gentlemen first. CHAIRMAN STRAIN: She always likes to be the last so she can counter everybody that comes up ahead. MR. LAYMAN : Yes, that's what I figured. Bruce Layman with Wilson-Miller. Actually, it just struck me as I was sitting here listening. I'm starting out with a question probably for Bill. Under the ii, sub C it says, where preserves include non-hydric soils. CHAIRMAN STRAIN: Where are you? MR. LAYMAN: It's on Page 202, mid page. Is sub C relating to preserves that are entirely uplands? Or is that suggesting that you have non-hydric soils within a larger preserve that might be wetland in nature but you've got upland inclusions in it? Because it struck me that maybe I was misreading this, and it should say, where preserves are solely non-hydric soils and uplands. And then the following criteria are applied to those conditions. MR. LORENZ: Yeah, I'm looking at how the language is stated. And I'm kind of working off of B, provides the condition that stormwater can be discharged into preserves that are composed of jurisdictional wetlands, uplands comprised solely of hydric soils and uplands that serve as buffers around the wetlands. So that's an allowance. Page 88 September 26, 2008 But then if you have any other -- the other conditions would include non-hydric soils and uplands. And that's where everything under C would apply. So you could have -- if you have preserves that are including non-hydric soils in them, and in addition to wetlands, then this -- you'd have to go through the provisions of C, is the way it's worded. MR. LAYMAN: I was hoping that wasn't the answer. But okay, that kind of changes my looking at it. This has been going for two years now. And we've been heavily involved in commenting and trying to sculpt this into something that works. Originally the direction for the -- this code started when we had a project -- not very big project, I don't believe -- that had a preserve that was entirely uplands. It had no wetlands in it. And the applicant wanted to put stormwater into the uplands. And the question was asked, will that hurt the uplands? A very valid question. And so this effort started. And instead of containing the regulation to preserves that are uplands where people wanted to put stormwater, it morphed into let's regulate all preserves where stormwater might be suggested to be placed. Last year I made the statement we've been putting stormwater in preserves for pushing two decades now. And so far that I know, I have one example. Last year there wasn't an example, but now there is one example where presumably the stormwater in the preserve has impacted the vegetation in that preserve. One example out of, I don't know, probably thousands. CHAIRMAN STRAIN: What example is that? What project? MR. LAYMAN: I believe it's the Collier Regional Park. CHAIRMAN STRAIN: I thought you were going to say that. I'm not sure I agree with your understanding of why that occurred, but that's fine. Page 89 September 26, 2008 MR. LAYMAN: Well, I may be wrong, but that was -- if I'm wrong and it was a different cause, then we still are back to zero then. So I just want to preface that, you know, this isn't a common problem that we're having that we're drafting this code about. It either hasn't happened or it's happened very, very, very infrequently. In fact, reflecting what was just said, more times than not -- and I've heard this also from Water Management District compliance staff, is more often than not if there a problem with vegetation it's because not enough water is being put into preserves. So I think it's very important to still kind of go with a concept that including wetland preserves that may also have uplands in them, including them in your water management system is very important to maintain the hydrology of those systems. Running through the code as it's proposed, some specific things. Mr. Hancock suggested that the Water Management District currently requires 150 percent water treatment, which is consistent also with the interim water management regulations of the county code. So it seems to me that under what, the top of Page 202, sub A, where it references you have to do the -- the discharges have to meet both the basis of review and the interim watershed management regulations, it's basically saying the same thing. And honestly, I'm not sure why we would want to put a reference into the code that's an interim policy, knowing that it's going to change at some point in the future when it gets finalized. Given that they cover the same aspects, same criteria, why wouldn't we want to leave it at just the basis of review and strike the reference to interim watershed plan? Simply knowing than it is interim at this point, it's going to need to get updated at some point in the future. Following to the sub B, when this first started out, we wanted to allow for water to be -- discharged into wetlands and if the soil -- the Golden Gate Estates might be a good example. It used to be a hydric soil, it's probably mapped as a hydric soil. However, if you go out Page 90 September 26, 2008 there today, it doesn't have hydric soil conditions because it's been dry for so long and it's been oxidized and it's no longer considered on the ground a hydric soil, even though the map might suggest that it was. The intent of the reference to upland, uplands comprised solely of hydric soils, that reference was to the mapped condition. If it was mapped as hydric because it used to be hydric 60 years ago, now it's not because it's been drained, it's probably more likely to be able to accept water on it again. So-- CHAIRMAN STRAIN: Bruce, I need to ask you a question. This hydric issue has got me a little puzzled. Soil is a physical item. It's considered -- it's got granular nature to it. It's got certain amounts of organics. It's got sand, it's got other particles in it. Whatever it is, nature made it that way and struck it wherever they stuck it in this earth unless we come along and move it. So Golden Gate Estates is a good example. You're saying the hydric soils that were mapped there are physically not hydric or just not functioning as hydric in regards to the wetlands nature of the area? MR. LA YMAN: I'm not sure I understand the differentiation, because it's pretty much the same thing. Basically they were hydric at one point, cypress over top of them, nice organic black soils with some sand mixed in. Once they dry out, they tend to oxidize because the water's not there keeping them anaerobic conditions. So when the water is there, the microbes and whatnot in the soil can't break them down. It's not a living condition for the critters -- or the little microbes when the water's up there and it's ponded and it's sopping wet. When it dries out, the decomposition process can continue. The organics become less, the sand becomes a higher percentage of what makes up the soil and you lose your -- and it's no longer considered hydric on the ground per the Corps of Engineers' conditions, the descriptions that they have for hydric soils, the indicators that are for hydric soils. Page 91 September 26, 2008 So when it does dry out, things do change. It turns more into that salt and pepper color versus the jet black that it used to be when the water used to be on it 50, 60 years ago. CHAIRMAN STRAIN: Because I haven't heard -- and that's what I was trying to focus on with the young lady ahead of you, is how this soil could physically change from one type to another. Because if it does, that has another whole bearing on all this stuff that we've been regulating. But now -- please go ahead, then. I'm sorry. I just needed to understand that better. MR. LAYMAN: Conversely, to expand upon that, it can go from a non-hydric condition now, put a bunch of water on it and it can turn back into hydric. I mean, it can go back and forth. It's usually a long process. It's not overnight, it's not next week, it's not next month, but it does happen through time. So at any rate, back to the sub B. We had the uplands comprised solely of hydric soils. But then later in the sentence, or in the paragraph, rather, it says, the hydric nature of the soils must be field verified by a -- well, by the applicant, using the methodology in chapter so-and-so. The purpose of referencing the hydric soils earlier in the paragraph was to suggest that if they were mapped hydric once and they may not be hydric anymore, odds are you could put water back on it and probably not harm anything. But that kind of defeats the purpose by going out and verifying that they're hydric again, because if they're hydric soils in the field chances are they're not uplands. Chances are they're wetlands. So I would suggest that in the reference to uplands comprised solely of hydric soils, I would change that to reflect uplands comprised -- you could keep solely or not, of mapped hydric soils, because that's I think what we're getting at originally, because those would be -- there'd be less risk in having water put back on those types Page 92 September 26, 2008 of habitats if they were once wet and now they've dried out some. And basically strike that last sentence about the hydric nature of the soils must be field verified by the applicant. CHAIRMAN STRAIN: Why? MR. LAYMAN: Well, it's a conflict. Because if you go out and you verify the hydric nature of the soil, it is a hydric soil today. That -- if it's hydric today, chances are very probable that the water is there to support the hydric nature of the soil. If the water's there to support the hydric nature of the soil, it's probably not an upland by current standards of going out and doing a wetland jurisdictional determination with the state or the federal government. CHAIRMAN STRAIN: Okay, I'm going to ask staff to comment on that. Go ahead. MS. MASON: If I could kind of comment on that. Susan Mason with Environmental Services Section, for the record. The reason I kind of had some input with this with the field verification was because the scale of the mapping of the soils is really large, and it can be up even up to half an acre of a different type of soil. If it's largely mapped as a wetland there could be a fairly significant quarter acre size say maybe upland in there. And if you're talking about a smaller type preserve, that could really be mapped as a wetland, but the situation on the ground is the actual area that qualifies and ranks as their preserve requirement is going to be an upland. So the field verification was important because you need to make sure, with the scale, I mean, the maps cover the entire county, so they obviously didn't go down and do individual jurisdictional lines like DEP does for Estates lots. It would really be the similar kind of thing like that to make sure that it really is a wetland or an upland, and either allow it easier if it's a wetland or with more restrictions if it's an Page 93 September 26, 2008 upland. So it was more of a scale. CHAIRMAN STRAIN: Thank you. Personally I think these field verification is valuable so -- and I understand your point, Bruce, I'm just -- that's my thought. Do you have anything else, sir? MR. LAYMAN: Yes, let me see, rolling down here. Oh, and I do want to support, Mr. Strain, your suggestion of using the Growth Management Plan language on the caveat about no protected or listed species are present. I think that will fix. If that doesn't happen, that particular clause will probably mean that it very easily could be the norm that we'd have to go through the deviation process instead of the exception. But by changing the language to the Growth Management Plan language, I think we would sidestep that situation. CHAIRMAN STRAIN: Well, I mean, as far as the GMP language, I don't think we have any choice, we're here to do what the GMP dictates, so -- MR. LAYMAN: No, that's good. Following, on the middle of Page 203, sub F, the last sentence, it's that replacement sentence: Compatible vegetation must be planted to replace any vegetation that may be lost over time in the preserve. That is very ambiguous. If a hurricane comes through, snaps off a couple of trees, as is written, you'd have to replace those trees that had nothing to do with stormwater in preserves. So I would think that we may want to include some sort of caveat right before the end of the sentence such as, as a result of excessive inundation, and place that right after the word times such that it would read, compatible vegetation must be planted to replace any vegetation that may be lost over time as a result of excessive inundation in the preserve. And that way we're not leaving the door completely open for requiring replanting if it has nothing to do with the stormwater in the Page 94 September 26, 2008 preserves. CHAIRMAN STRAIN: How would anybody show excessive inundation? I mean, the practical application is we need to get the material replaced if it were to die off. And we don't want an impractical way to prove that, because then we've accomplished a loophole that has been used too often by too many people. So I don't have any problems looking at changes in any language in this entire code, as long as it can be applied. And I wouldn't know how to apply that. MR. LAYMAN: Maybe it's a matter of having a vegetation replacement clause elsewhere in the code where it applies to all preserves, and not have it buried in the stormwater in preserves language. Because honestly, I wouldn't -- you know, I wouldn't look here if that were the case. CHAIRMAN STRAIN: We did bring this question up earlier, and I think that because this is under the stormwater section, it would only intentionally be for stormwater. But go ahead, Bill. MR. LORENZ: Maybe I can work with the language with Bruce to state it more in a positive way, that vegetation would not have to be removed if it can be demonstrated that it was caused by wind damage, fire, et cetera, et cetera. In other words, things that we can physically determine that are not stormwater related. And then that may be a way of handling that. CHAIRMAN STRAIN: Any form of analysis that could be -- we could actually latch onto factually is what we need to put here. MR. LAYMAN: That sounds reasonable. And I have one last comment, and that's regarding sub H at the very end. That's Page 203 and 204. It's the deviation process. The first half of the paragraph basically says, staff will review the deviation request, make sure everything is good to go, and then the process for granting the deviation shall follow the procedures set forth Page 95 September 26, 2008 in Section 8.06.10. So basically it's saying you'll get to the point where staff is comfortable and then you'll go through the deviation process with EAC and presumably then the planning commission. It would seem to me if the proj ect gets to the point where staff approves it, that there might be -- we might well want to put an administrative approval allowance within there and have the deviation through the EAC and planning commission move forward only if the applicant can't reach an agreement with staff. CHAIRMAN STRAIN: Well, I think the code is the administrative approval process, and anything beyond the code needs to have public review. Otherwise, I don't see the public being adequately protected. So Bruce, I'm not sure if anybody else agrees or disagrees, but that's my just my comment. MR. LAYMAN: All right. That's all I had. Thank you. CHAIRMAN STRAIN: Thank you. Okay, Nicole. Now, you can talk slower, because we're not the Gong Show and you'd be able to have more time to talk. MS. RYAN: Okay, as long as I'm not going to be kicked back to my seat, I promise I will. For the record, Nicole Ryan here on behalf of the Conservancy of Southwest Florida. And the Conservancy is not able to support the language as staff has proposed it. This is similar to the language that staff proposed two years ago. We had concerns with it then. You as the planning commission had concerns at least with some of the former iterations of the language for this that staff had proposed. The Conservancy's initial position was that no stormwater should be allowed in preserves under any circumstances. And we based that position on information from numerous agencies, including the U.S. Environmental Protection Agency, where in their guide to best stormwater management practices they stated that incorporating Page 96 September 26, 2008 natural wetlands into the overall stormwater system, either for treatment or for storage, has an adverse impact on those wetlands and their biota, especially in urban areas. This is due to the fact that the ability for wetlands to handle increased flow or pollutants from stormwater is limited. And the result is adverse impacts to the biological community and biological function. However, we do realize that the county wants to put in place the ability for flexibility so that applicants, due to perhaps a small preserve, perhaps it's in an urban area where it makes sense to allow for a preserve to be incorporated can be on a case-by-case basis. So we wanted to look and find some sort of compromise language that would still implement the intent of the GMP. And I think it's important to point out that the GMP requires that no adverse impact result to the naturally occurring native vegetation. And the Conservancy does have a concern about taking an upland and transitioning it to more of a wetland through stormwater. That isn't the naturally occurring vegetation that's on the site in many cases. So we don't believe that that truly implements the intent of the GMP. We had sent you a comment letter at the end of August detailing how we would like to see the staffs language rewritten. But really, even if you rewrite the language that staff has proposed, they still allow a deviation at the end that allows for applicants, no matter what circumstance, to apply to have stormwater in the preserves. So we want to simplify this, because the language that's been discussed today, there's a lot of wiggle room, there's a lot of uncertainty. And so we've proposed kind of three bullets that we think captures what you would like to get to, what staff would like to get to. I have copies if you'd like copies, and I'll put it on the visualizer. Essentially this gets to the first issue of limiting treated stormwater discharge into wetland preserves that would demonstrate Page 97 September 26, 2008 no adverse impact from this additional stormwater. And the responsibility would be on the applicant to significantly demonstrate to the county that in an adequate manner, yes, this would be -- the no adverse impact would be met. Second, for all other cases -- CHAIRMAN STRAIN: Before you go too far -- and again, I know I've interrupted too many speakers. But if you go too far and we don't ask our questions we may not get the results accurately -- MS. RYAN: No, that's fine. CHAIRMAN STRAIN: Let's go back to your first bullet. Let's discuss that. Basically you're suggesting that it's only wetland preserves and that the xeric preserves and mesic preserves would be off limits. Is that -- MS. RYAN: Yes, under the assumption than it's allowed without a deviation, yes. CHAIRMAN STRAIN: Okay. The xeric uplands that were talked about basically don't have any -- very little -- I think you said less than once in 24 months do they have any inundation at all. Is it -- and staff can tell me this -- is the intent of the language that you put forward that even xeric areas would be allowed to have stormwater? MR. LORENZ: They would not be allowed to have stormwater. CHAIRMAN STRAIN: So xeric under your conditions wouldn't be allowed. MR. LORENZ: Correct. CHAIRMAN STRAIN: Okay. And that's one uplands. And the only uplands I think you're concerned about based on this first bullet then are the two mesic and xeric. Is that right, Nicole? MS. RYAN: Well, we're concerned about really all of the uplands. And also, you have hydric soils that aren't necessarily wetlands that we believe should have to go through the deviation Page 98 September 26, 2008 process with the public and sort of that heightened awareness and demonstration that there will not be an adverse impact. Or if there is going to be an adverse impact, the county determines through the public hearing process that on this case-by-case basis it's something that would be for the better good and allowed. CHAIRMAN STRAIN: By the way, the rest of the panel members here, if I'm going into too much detail, I'm not trying to get anybody going where we shouldn't go, just let me know. But right now I'd like to try to understand your first bullet, to try to look for a compromise that works for everyone. Could you put up that study that showed the amount of inundation per month. That one there. Now, Bill, the way you've written the language, you're saying that xeric communities couldn't have any -- they wouldn't be allowed, period, no stormwater. MR. LORENZ: That's correct. CHAIRMAN STRAIN: Okay. Mesic goes back to that period of inundation that would have to be proved. Is that -- go ahead. MR. LORENZ: Maybe I should modify what I said. Certainly xeric could come through as a deviation process -- CHAIRMAN STRAIN: This is a clarification that-- MR. LORENZ: I don't think we excluded that from the deviation process. Anything could come through the deviation process. CHAIRMAN STRAIN: By the way, during lunch today could you make copies of this document so we could have it to study off of before you come back to us again? MR. LORENZ: Sure. CHAIRMAN STRAIN: Okay. So the xeric, if we were to -- first of all, the xeric's not a given. And if we were to eliminate it from even deviation process, that would keep it out of play. MR. LORENZ: Correct. Page 99 September 26, 2008 CHAIRMAN STRAIN: Okay. Now, Nicole, your agency or your organization is concerned about, on this page what levels of plant communities? Where is it you're concerned -- where is it you're trying to write about in your first bullet? MS . RYAN: Well, the first bullet -- we're concerned about all of them -- CHAIRMAN STRAIN: Okay, let's get back to discharge-- MS. RYAN: -- we are concerned about all of them. But in looking at this chart, we're concerned that first of all, for the first bullet, if it's a wetland, than it could be allowed. If we're looking at uplands and the mesic -- CHAIRMAN STRAIN: Let's stop there. If it's a wetland. On this page that's in front of us right now, where do the wetlands in your mind fall? MS. RYAN: The wetlands, cypress would be wetlands, swamp forest would be wetland. CHAIRMAN STRAIN: How about the hydric flatwood and hydric hammock? Would they be considered wetlands? MS. RYAN: I would defer to a biologist. I don't believe they are. They're hydric soils, but wetlands have essentially have three conditions. You have the hydric soils, you also have plants and vegetation that are characteristic of wetlands, and you have the hydrology, those water levels that make it a wetland. So hydric doesn't necessarily equate to wetland, though it is one factor of a wetland. CHAIRMAN STRAIN: Bill, from a staffs perspective, is the hydric flatwood and hydric hammock considered wetland preserves? MR. LORENZ: The way we would -- that's not exactly the question to ask. The way we structure the ordinance, the Land Development Code amendments is that if it's jurisdictional, it would go in as a wetland. If it's non-jurisdictional, then it would be subject to our analysis. Page 100 September 26, 2008 CHAIRMAN STRAIN: Would the hydric flatwoods and hydric hammocks be jurisdictional? MR. LORENZ: That could be. CHAIRMAN STRAIN: They could be. MR. LORENZ: They could be. CHAIRMAN STRAIN: Okay, so -- and I'm just trying to get-- the top one is off the table. The hydric flatwoods and hydric hammocks is a maybe. And now we're down to mesic flatwood and mesic hammock. Those are considered uplands from everybody's perspective? MR. LORENZ: Typically, yes. CHAIRMAN STRAIN: Okay. And so the issue then is how often are they inundated. And if the inundation is greater that what nature would normally put there, they become a problem for the species that are there, right? MR. LORENZ: Yes. CHAIRMAN STRAIN: So in your first bullet, you're really talking about, from what I can see, the -- what, the wetland prairie -- yeah, your first bullet. You're talking about the wetland prairies on down. They took the other sheet off. Can you put that other sheet back on there. Nicole, when you refer to wetland preserves, you're referring to which level on here, wet prairie, dwarf cypress on down? MS. RYAN: I think that we could probably agree to jurisdictional wetlands -- CHAIRMAN STRAIN: Okay, we're making progress then-- MS. RYAN: -- I mean, it's going to be on an case-by-case basis for some of these. So I think jurisdictional would probably simplify that. CHAIRMAN STRAIN: Okay. Then the mesic flatwood, mesic hammock is outside jurisdictional. They're inundated a certain period each year. Would your objections be at all for stormwater or only un Page 101 September 26, 2008 to those periods when they normally are by nature? MS. RYAN: Well, I think stormwater is not natural. So we're trying to compare apples and oranges here. When we're talking about putting stormwater into an area, that is an unnatural addition. N ow can it be done in a manner which will not completely degrade that area? Perhaps. But stormwater is not natural. So I'm not sure that comparing a natural inundation from rainwater and groundwater regime can really be compared with putting more stormwater in. If we're talking about rehydration of an area, and I know that there's a lot of concern about it's unnaturally dry and the water table has been lowered because of canals and drainage from development. And that's true. But rehydrating for the purpose of restoration of an area is very different than rehydrating because you need to place stormwater into an area as part of an overflow for the stormwater management system. CHAIRMAN STRAIN: Okay, I've got to ask one question of the rest of the board. We normally take a break about now for lunch. We can interrupt this process, because I think the discussion with Nicole is going to go on longer than lunch. So what's the choice of the panel? Nicole, would you mind if we took a break now and come back and continue with you after lunch? Because honestly, I think we're going to have more questions of you and I need more definition of your -- I'm concerned about your issues, but I also want us -- I'm concerned about the other issues brought up by the staff and other people here. And I want to make sure that what comes out of this is balanced in direction to staff to come back with something that works for everybody. Will you be able to be available after lunch? MS . RYAN: I had a 1 :00 meeting, but I will cancel that and come back here. Page 102 September 26, 2008 CHAIRMAN STRAIN: We would appreciate it. So with that, if it's okay with everybody let's break and come back at a quarter to 1 :00, 12:45. Is that okay with everybody? One minute before we do. I just thought of something. Catherine? MS. FABACHER: Yes, sir. CHAIRMAN STRAIN: You know, we've got a lot of people in the wings standing by for things that could come up that are not environmentally related today. But it looks like on item B we can return to a pile of environmental issues. And we might just focus on all environmental issues today so that we don't have to worry Phil Gramatges or Michael DeRuntz or Carolina or other members having to stand by all afternoon to -- and if they know that, they don't have to worry about it and we can address those issues on the 2nd of October. Is that doable? MS. FABACHER: Well, Mr. Chair, we could of course do that. I have another consideration, though, because we have very little to send to the Board of County Commissioners on October 7th. So these are very, very quick ones. They're all very simple like citation -- if we could just whip through those, I would have something to take to the board. Because we've already canceled one meeting for lack of things to hear. CHAIRMAN STRAIN: But see, I don't care if you cancel the meetings to the board for the next six months, and they don't either, I don't believe. I think they'd rather see us do a good job rather than send one to them hastily. As far as going quickly through those, I can assure you, we will not be. So with that in mind, why don't we suggest that we will move in -- stay on only environmental issues today and we'll see the meeting through till we quit today just on environmental. Is that okay with everybody? Mr. Vigliotti? Page 103 September 26, 2008 COMMISSIONER VIGLIOTTI: Yes, it's okay with me. I have another question I wanted. CHAIRMAN STRAIN: Sure, go ahead. COMMISSIONER VIGLIOTTI: During lunch, could we get a copy of what's on the visualizer so that it will be here when we come back. CHAIRMAN STRAIN: Okay. Is that okay with everybody? Okay, great. We'll break for lunch and now let's just come back at 1: 00 even. Thank you. (Lunch break.) CHAIRMAN STRAIN: Okay, everyone, welcome back from lunch. We had left off with Nicole Ryan's presentation or discussion on the stormwater in preserves issue. She was telling us how she has no problem with stormwater, even in the highest of uplands. (Laughter. ) CHAIRMAN STRAIN: Nicole, I know we started talking about what in particular you were mostly concerned about, or where from a preservation standpoint would be most detrimental. I think the xeric flatwood and xeric hammock are off the table, even for deviation. I don't see anything wrong with that. I think that most of the board would probably agree with that. You already had conceded to jurisdictional, which takes us up through to wet prairie and dwarf cypress preserves and possibly into certain hydric flatwood and hydric hammock preserves. Now, I think then the debate will then center around what the balance of the hydric flatwood and hammocks are and the mesic flatwood and hammock areas. And I'm looking for a solution. I know that the stakeholders had met prior to this meeting and tried to come up with this language. You were involved in that, I understand. And I know some people in the room might have been. But it doesn't look like a compromise was reached. Page 104 September 26, 2008 And we've got to pass something onto the BCC, and I think we're looking for a compromise. I don't disagree with your position, but I also don't disagree with the position of many who spoke to today, especially depending on the location. And that may be where the compromise can come in. Because we have an urban area that has a totally different regime from what it was 100 years ago to what it is when it's being developed today. And we have a rural area that is in many ways untouched. And I think there's a big difference in the two. Do you have any thoughts on that? MS. RYAN: Well, I did want to point out that in staffs language they allow deviations for essentially any case. That is not spelled out or it's different than what's in the LDC. And the Conservancy definitely would support having some of those areas as absolutely off limits, because I think in some of these high and dry areas, especially where you have gopher tortoise habitat, those are areas where we do want to say under no circumstances. So we definitely would encourage that. I think one of the concern with staffs language was that it set out these parameters, and then at the end stated but if you don't qualify, then go ahead and go through a deviation process. So there really was no limiting factor, which was of concern. In the rural areas, you have the RLSA program that they actually incorporate the water retention areas oftentimes as part of their stormwater treatment system. So I'm not sure how these -- this LDC would apply to the RLSA. It seems the RLSA has their own set of standards. So I see this really as applicable pretty much contained into the urban area, because the percentage of native vegetation to be set aside is tied to the urban area. You have different standards for the rural fringe and the rural lands. And the Estates is its own separate entity Page 105 September 26, 2008 also. CHAIRMAN STRAIN : Well, if locational criteria isn't something that helps in finding a resolution, what about the size of the acre -- or the preserves that are involved? I mean, some of them are so small because they're required by code to be there, they're not functional for anything but open space. I'm not sure dying on a sword over something like that is worthwhile. MS. RYAN: And I think it was something that Bruce brought up earlier that this really came to the forefront because you had a site that couldn't accommodate the development footprint, the stormwater system and the preserve. And so that's what truly triggered this conversation. And you have LDC amendments that will be coming up today or next week that allows for off-site mitigation of preserve areas for those very small sites, for residential development where the preserve is one acre or less, and for a commercial industrial site where the preserve is two acres or less in size. So I think that that's going to capture some of those very small sites where everyone recognizes that perhaps the better functionality could be protected by mitigating that off-site. And in those cases, then that additional space could be used for stormwater, for footprint, those sorts of things. CHAIRMAN STRAIN: Before I forget, you just pointed out something. We do have at least two or three more hours we'll be meeting this afternoon. During that time we are going to only discuss environmental issues today. So those people that have been waiting for things such as the utilities in the Immokalee area and things like that, we're not going to have time to get those today. They will be put off until at least the next meeting date, which is the 2nd, I think, of October. We have plenty to do in environmental today. I'm not sure we'll even finish that. So as a side note, if anybody's waiting for anything else, we Page 106 September 26, 2008 won't be getting to that today. Well, Nicole, I understand your first bullet and I understand the issues you've just responded to, although I don't -- I'm not sure I see the need in the urban area to be as steadfast in some of these applications. The mesic flatwood and mesic hammock are inundated on a regular basis, looks on average 30 days in a hydroperiod. If that language was inserted with allowance of a deviation beyond that, and similar to the hydric and flatwood hammocks, if those were regulated to -- the range is one to two months, so if we were to go to an average of 45 days for those two and anything beyond that a deviation, does that get us closer to having a fair treatment of the preserve areas? MS. RYAN: We would like to see in those instances that it go through the deviation process. Again, when you're talking about inundation, that is going to be in a natural condition. When you're talking about adding stormwater, the stormwater's going to be added at times when that stormwater system needs the overflow for that additional storage. So it's under a different circumstance when that stormwater is going to be added. Now, if the applicant would like to demonstrate for their specific particular case through the deviation process that indeed there would not be an adverse impact, we would like to see it go through that process, especially for some of these developments that may not have that public involvement otherwise. And with requiring the deviation, the applicant is going to know up front that they need to go through the deviation process, so they can apply from day one. And we don't see this as something that's going to add a lot of extra time to the process. It's something that's going to provide clarity and specificity that the deviation needs to be done. So you start that process, you go through the public hearing. It isn't going to be something that is then negotiated 200 days into the Page 107 September 26, 2008 application process and all of a sudden staff says whoops, you need a deviation. You'd have that knowledge right on the front end. So we think that it could be beneficial because it does provide some specificity and the flexibility to, on the case-by-case basis, demonstrate why having the stormwater go into that preserve either will not adversely impact, or if it's decided that it's okay to go ahead and allow the stormwater even if there's going to be a transition, that that's known up front. CHAIRMAN STRAIN: But if the normal hydroperiods normally provide for a period of time for inundation and they show through modeling they're not exceeding that, why would they need a deviation for that? It's only when they would exceed the normal inundation that I think a deviation needs to be explained as to why they think the excess can be handled. If it's no more than normal, then we're not creating a situation that's any worse than what nature's already created. MS . RYAN: I think the concern again is that the stormwater is going to be put into that preserve in a regime that is different than the natural regime. So we would like to see the deviation process so that that modeling could be brought forward and that there could be the public hearing process. Again, when you're talking about the natural system, that's through the rainwater, that's through the groundwater. But the stormwater is going to be added in there during those times of perhaps storm events, higher water levels when the stormwater system needs to pop over into the preserve areas. CHAIRMAN STRAIN: At times most likely the preserve areas would be saturated anyway. MS . RYAN: Correct. And this would add more water. And so the stacking of that additional water, what would be the impacts of that. CHAIRMAN STRAIN: But there would be no -- based on the Page 108 September 26, 2008 study that's here, there would be no additional impact if it didn't exceed the time frames shown here. If it exceeded those time frames, then we could argue there could be greater impacts, and those are the time that deviations may be more warranted to explain any new science or modeling that's come forward. I'm trying to find a solution as a compromise. I don't believe that your application is 100 percent right in all cases, nor do I believe it should be a free-for-all. The concern I have is what we're using as a baseline standard. Collier County's urban area is no baseline standard from what nature was. We have -- it's been modified and changed for the last 60 or 70 years. So we're not looking at a virgin piece of ground. We're looking at something that's had already damage done to it by its own baseline has being disrupted, so -- MS. RYAN: But oftentimes it still is natural and functioning, so -- and this would apply to not just the small tracts of land but there are many, many large tracts of land still in the urban area that don't have their PUD's, don't have their site development plans, are going through redevelopment, perhaps. So this would apply to we think a very wide range of parcels, not just the two, three, four-acre parcels or preserves. CHAIRMAN STRAIN: Okay. I think we probably talked enough about that. We'll certainly -- through discussion and direction to staff before this is over we'll have something. Why don't we move to your next bullet. And you had just started to go into that before I interrupted you a long time ago. MS. RYAN: Well, again, that gets to the deviation process. And for the instances where it would not be going into the wetlands or if there was believed to be an adverse impact to the wetlands, for all of those circumstances we would like to see the deviation process applied for. Oftentimes in discussion with applicants they'll say we want to know what the rules are. They want flexibility, but they also want Page 109 September 26, 2008 specificity and clarity as to how they need to apply for a process. And we believe that by placing this language, which is very black and white, but it lets applicants know that they are going to need to go through the deviation, go through the public hearing process, have you make the determination of whether it's in the best interest of the county to go ahead and allow the stormwater, if they've done sufficient demonstration so that environmental and engineering review believes that there won't be an adverse impact. We would like to see that heightened level of scrutiny in those cases. CHAIRMAN STRAIN: And I think everybody here is in agreement that there are cases where that deviation can apply and that the heightened level of scrutiny is warranted. We just have to get to the point of what that level is. So I think we're there with that. So your last bullet? MS. RYAN: The last bullet, we would like to see included, and it's been discussed a little bit, the clarification that while the Water Management District may in some cases not require the inch-and-a-half or 150 percent treatment, Collier County does. And also, Collier County, through the interim watershed management plan guidelines, states that that treatment needs to occur outside of the preserve. And again, that's something different than the District applies in some cases. So yes, those interim guidelines are interim, but they're going to be in place for some watersheds for many, many years until the watershed plan comes through. So we believe it's appropriate to have those included. You could perhaps put language that says the interim guidelines shall apply until the watershed management plan has been approved for each watershed. But we believe that it's important to have in there. CHAIRMAN STRAIN: And that point I think we're in agreement. I don't know -- I'm sure I am. I do agree the interim watershed management should apply. It does help force the final plan Page 110 September 26, 2008 to get done. And the 150 percent treatment is one that's recognized right now and being used right now. There's no reason we shouldn't continue to use it. So I don't have a problem as much with that. I think that's -- is there any other issues you have? MS. RYAN: Well, I just wanted to bring up, because you touched upon the issue, that really, finding additional places to shunt stormwater doesn't get to the heart of the issue. And the Conservancy really believes that the county needs to be more proactive in planning for alternatives to some of the traditional stormwater management and treatment systems. We'd like to see alternative design, green design, having swales between rows of parking instead of curbs, having grass parking areas, something that reduces the amount of stormwater that's generated. We think that that could really cut down on the size of the stormwater system and may eliminate this issue of needing to use the preserves for that additional capacity for storage. And I believe that that will be done hopefully to a large extent in the watershed management planning. But we'd also encourage the county to take a look at putting some provisions in place that would be countywide. The watershed plans are going through on an incremental basis, but we could provide flexibility today. So we'd encourage the county to work on that. We really think being proactive is a much better solution than making bigger stormwater systems or finding additional places to store and treat stormwater. CHAIRMAN STRAIN: Thank you. Ms. Caron? COMMISSIONER CARON: When you began your presentation, you were quoting from something or someone. And the specific reference I want to get back to concerns the urban area. MS. RYAN: That was the Environmental Protection Agency's Page III September 26, 2008 guide to best stormwater management practices. And in their manual they indicated that incorporating natural wetlands into the overall stormwater system, either for treatment or for storage has an adverse impact on those wetlands and their biota, especially in urban areas. And I can get you the manual and the introductory summary, because it did have some very interesting facts in there. And again, this was from a manual about best stormwater management practices. And if we did a better job of managing the stormwater, then we may not have to look so much at finding additional storage. So it all fits together, we believe. COMMISSIONER CARON: Absolutely. And most particularly, we cannot just slough off the urban area because things have changed. It affects the urban area to perhaps a greater extent. MS . RYAN: Yeah, urban area, the preserves are important for wildlife habitat, they're important for water recharge, they're important for clean water, the connectivity into the estuaries, and also aesthetically. We want to have nice green space open areas. COMMISSIONER CARON: I'm especially concerned with our estuaries, and that becomes critical all throughout coastal Collier County. And that becomes a major issue, whether you're up in the northern part of the county where I'm from, or you're down closer to where you work, Mr. Strain, down at Fiddler's. So there's a whole lot of area that is affected. CHAIRMAN STRAIN: Anybody else have any questions of Nicole? (No response.) CHAIRMAN STRAIN: Okay, thank you. Mr. Hughes? MR. HUGHES: William Hughes, speaking as a citizen of Collier County. I'd like to reinforce what Nicole just said. Alternative designs, pervious as Chairman Strain also pointed out earlier. We need to look Page 112 September 26, 2008 seriously in my opinion at these alternatives. Along with Ms. Caron, her comment is well taken as well. The main issue primarily would be water quality as it enters the estuaries. Thank you. CHAIRMAN STRAIN: Thank you. Are there any other members of the public wishing to speak? Okay. I'm trying to I remember your name. Jeremy, right? MR. STERK: Jeremy Sterk, Davidson Engineering. I kind of just want to reiterate what you eluded to, Mark, about the urban area. We seem to have -- over time we've lost sight of what these preserves were originally intended to be. They were intended to be open space, green space that everybody can enjoy. It's kind of morphed over the last five or six years into this idea that they're this snapshot of a perfect natural community that is going to remain that way and needs to remain that way. And this idea -- and the original intention was just for it to be there and not be pavement. And, you know, all these LDC amendments really relate to enforcing all these things on these preserves that in the urban area, you know the net effect is if an applicant can't utilize their property fully in the urban area, in the bigger picture down the road it's going to put pressure on stuff out east that's more pristine. And, you know -- just comment. And, you know, also reiterating some of the other consultants, you know, in my experience over the last 15 years I have yet to have monitored a site for the Water Management District, you know, long time, five, six, seven-year monitoring where inundation has ever been a problem. It always tends to be the opposite, where it's the wetland drying out or the upland getting drier and grapevine and Caesarweed and all those upland pioneers that move into the preserve and then need to be eradicated and stuff. So again -- and like Bruce Layman had said, I don't know of any examples. We've been putting stormwater in preserves over the last Page 113 September 26, 2008 two decades, and I don't know of any examples where it's been an issue. And I don't think you have any people, you know, red flags popping up saying we've got preserves dying all over town. And he had referenced the Collier Regional Park. I had done a little research on that when we were dealing with our New Hope and bringing the New Hope proj ect through the process, and I believe the main reason there was issues in that preserve is because mechanical exotic removal was done and it crushed within the drip line of pine trees. And that was the stress that caused the die-off there. Specifically in the code, on Page 203, the -- at the very top, the reference to 10 days, I think that in effect is a prohibition on water management in the preserve if there's uplands. And, you know, my recommendation would be to use what Mike Duever's report recommended, which is the 30 days. I think his report has maybe gone way beyond what he ever intended it to be. You know, even I've got the report here, the title of the report is Southwest Florida Predevelopment Vegetation Map. I don't think he really was intending it to become the Bible on hydrology. But I think 30 days, like you had said, that's the best science that anybody has put forward at the moment. And 30 days is fair. And if it goes beyond that, then we have monitoring in place to capture that and a remediation plan if necessary. That's it. CHAIRMAN STRAIN: Great. Thank you very much. MR. STERK: Thank you. CHAIRMAN STRAIN: Question of staff. And I've now heard a couple people comment on this. We've been apparently using preserves for stormwater to some degree. If it's been going that way all along, and I'm not sure we have that many people concerned over that. Why do we have this whole section being brought forward now anyway? Page 114 September 26, 2008 I mean, if that's been allowed, what are we doing with this? Why are we changing what we already have? MR. LORENZ: My understanding is that there was allowed stormwater to go into the wetland preserves. So when we talk about preserves, especially the South Florida Water Management District, those are wetland preserves. The difference here is now we're retaining native vegetation in truly upland types of communities, non-jurisdictional wetlands. And that's what we're looking at, standards to protect the county's upland preserves. CHAIRMAN STRAIN: But aren't you already allowing that? Because wasn't there an example or two where the upland preserves had already been allowed to have stormwater put in them? The park being one and the -- whatever small site Bruce Layman has been talking about? Which is I think the Kraft site or something, if I'm not mistaken. But aren't we already doing it? Otherwise, why is everybody telling us about this that's it's been done already? How could something die out if it wasn't already being attempted? MR. LORENZ: The staff was not intentionally allowing stormwater to go into those upland preserves. Now, if that -- going into those preserves, if that was a mistake, then the staff didn't catch the fact that the water is going into the upland preserves. CHAIRMAN STRAIN: So the one example of a mistake we have is a county park. And we didn't catch it in our own county park and that's the only time we didn't catch it? MR. LORENZ: No, I'm not speaking of the county park. CHAIRMAN STRAIN: Okay, well let's use the county park. If that's an upland area and there is concern that maybe the trees there have died from having too much water, my question is how did the water get there in the first place if we haven't supposedly allowed it? I mean, are we allowing it or not? Page 115 September 26, 2008 MR. LENBERGER: I haven't reviewed the stormwater for the county park. Bill might be able to talk a little bit about it. I do know that that area was quite wet prior to development, speaking to Mac Hatcher regarding this, and a few other staff members, so that area -- CHAIRMAN STRAIN: Was it jurisdictional? MR. LENBERGER: I don't know. I-- CHAIRMAN STRAIN: Could you find out by the next meeting? MR. LENBERGER: I didn't do the permitting of it, but I do know that it had a lot of water to begin with. I did go out there and look at it. I took pictures. I brought it back to the stakeholders and I showed them some of the pictures of there. And areas that I would have expected to see a lot of drier type habitat -- vegetation adapted to drier environments. I saw hemp vine between saw palmetto areas. I wouldn't expect to see that on an area dominated by saw palmetto. This area is very wet and very soggy. I looked at the map for the park. Actually, I do have a small site plan of it, I'll put it on the visualizer, if you'd like. I believe have it here. Let me see. The area I looked at, there's extensive die-off -- here is the entrance right here. There's extensive die-off in this area. CHAIRMAN STRAIN: Could you blow the preserve area up where you first showed the extensive die-off. See those cross lines going underneath the roadway? MR. LENBERGER: Let me center this first, okay. CHAIRMAN STRAIN: Okay. Those look like drain lines. MR. LENBERGER: Hang on. Is that a little better? CHAIRMAN STRAIN: Well, you're getting gooder. MR. LENBERGER: I can blow it up larger, just move it over. CHAIRMAN STRAIN: There you go. Well, that is -- it's a flowway. So is there any drain running from the property into that flowway? Page 116 September 26, 2008 MR. LENBERGER: I don't know the water management. I do know that this is where the extensive die-off was. CHAIRMAN STRAIN: Right. MR. LENBERGER: And this area here is -- was indicated as flowway. That's an extensive area of saw palmetto. But there was all hemp vine between it. It was very wet, very soggy. And this area is where all the pines are dying. Nicole has given me a map here. I guess it was indicated as upland preserve on a FLUCCS map for the county park. This was just given to me so I haven't looked at it. I don't know how this is in relation to -- CHAIRMAN STRAIN: Well, that's okay. I'm trying to see if you have any outfalls going into that preserve area to show that that preserve area was used as water management. MR. LENBERGER: Well, it's indicated as a flowway here. CHAIRMAN STRAIN: Right, I'm talking about the other area-- MR. LENBERGER: This one here? CHAIRMAN STRAIN: Right. MR. LENBERGER: I can try to zoom in a little more, if you'd like. Like I said, I haven't looked at the stormwater. Bill might be able to comment. I don't know if he's had a chance to look at this. CHAIRMAN STRAIN: Does that lake have a bank on the south side or does it spill over at natural grade into that preserve? Because the control of that lake, then, would control the preserve. MR. LENBERGER: I honestly don't know. I'm sorry. CHAIRMAN STRAIN: Well, the only reason I'm bringing all this up is it seems like the example made -- oh, this is the lady that actually designed that. Come on up here. Maybe you can help us. MS. KITCHENER: I didn't design it, but I did-- CHAIRMAN STRAIN: Could you state your name for the record again, please. Page 11 7 September 26, 2008 MS. KITCHENER: Marielle Kitchener, Turrell, Hall and Associates. I actually flagged that wetland, so -- the wetland line, jurisdictional line. And that is a very, very, very mesic upland to begin with. CHAIRMAN STRAIN: So it isn't a wetland. You said you flagged that wetland. You mean it's not-- MS. KITCHENER: Well, I flagged really the upland line, because that site was primarily wetland. There are areas that were solid palmetto and there was a lot of reticulating palmetto. But in between the palmetto, and you might only have three or four feet in between the palmetto, you'd be in ankle deep water in the wetland -- in the wet season. CHAIRMAN STRAIN: Okay. But this area that's shown crosshatched both ways below the lake on the plan that's on the overhead right now, that area is uplands? MS. KITCHENER: It had some scattered uplands in it. It was primarily wetland. Lot of Melaleuca, pine, cypress, scattered palmetto. CHAIRMAN STRAIN: That helps us with the understanding, thank you. MS. KITCHENER: You're welcome. CHAIRMAN STRAIN: Go ahead, Mr. Vigliotti. COMMISSIONER VIGLIOTTI: It's a question of staff. I'm really finding it hard to understand why we need this change. And all these changes are starting to get confusing and convoluted. And I'm concerned that the change and what we do might be worse than what we have. Can you help me with that? MR. LORENZ: Previously the staff had the understanding of the policy that the wetlands, if it's a jurisdictional wetland, part of the South Florida Water Management District, that the stormwater was Page 118 September 26, 2008 part of that environmental resource permit from the South Florida Water Management District. So the stormwater was allowed in the wetland preserves, treated stormwater, subj ect to the South Florida Water Management District. The problem came as we started coming into preserves that were no longer the wetland preserve, the preserve from the South Florida Water Management District, as to what criteria do we apply, do we even allow stormwater in those preserves in the first place, since the Land Development Code had specified that the allowable uses within the preserves were simply the recreational uses. So that became a point of misunderstanding as to what we should apply about three or four years ago. And so we put in the Growth Management Plan in the EAR-based amendments the provision to evaluate what would be the appropriate criteria to allow stormwater in preserves. And so that's why we're trying to work through the process of discriminating or differentiating between the stormwater that was allowed to go into wetland preserves through the South Florida Water Management District permitting process and then those non-wetland preserves. And that's the criteria we're trying to develop through this Land Development Code amendment. CHAIRMAN STRAIN: Okay. Anybody else have any questions at this point? Because I think we probably need to summarize direction to staff to finish this one out. And basically, I'll try to bring the issues up, and certainly if you all agree or disagree, speak out. In regards to putting the stormwaters in jurisdictional preserves -- jurisdictional wetlands, I don't think there's any debate about that. That seems to be accepted. In the issue regarding the xeric uplands, I think that from this commission's perspective, again, I didn't hear vocalization when we talked about not allowing the xeric upland plant communities to be Page 119 September 26, 2008 receivers of stormwater and not allowing a deviation for that to happen. When it gets to the hydric areas, we heard that that's a mixed signal as to whether it's jurisdictional. It could be and it could not be. And the mesic is more of a pure uplands, although it's inundated for a longer period of time than a xeric. So I think what we might want to do is look at a maximum acreage of each preserve habitat for hydric and mesic that would be accepted based on -- without a deviation. And when we break a threshold that seems practical for retention of native vegetation that meets some acreage threshold, that's when the deviation would kick In. That's just a suggestion to get us off dead center. And maybe it's the size of the community that we're trying to save that becomes the viable or valuable asset that we want to try to look at then. So I'm suggesting we proceed under that regard. And I also would suggest that those areas that are underneath the acreage threshold, we apply the hydroperiod for mesic to be 30 days and the hydroperiod for hydric to be 45 days. That's only for those smaller areas that fall under our acreage threshold that you would still come up with in your revisions to us. Anything above that threshold, regardless of the hydroperiod, still goes up for deviation and discussion. I don't know what that acreage threshold is, but I suggest you've got some stakeholders out there who are deeply involved in this. I highly recommend that before it comes back that you meet with them and discuss with them that Issue. Ms. Caron? COMMISSIONER CARON: Yeah, I would just suggest -- I'm fine with your suggestion of trying to come up with an acreage threshold. I would just be slightly more cautious on my number of days and not go right to the max, which is 30 days or 45 days, but Page 120 September 26, 2008 allow yourself some cushion. Now, staff went from 10, when it could have been 30, so maybe you want to compromise and say 20. But I think it behooves us to leave some sort of cushion in there. CHAIRMAN STRAIN: And I agree with you, as long as we can find out, and if you have to put a phone call into the guy that did these. As long as these aren't averages. If they're averages, then we already got the cushion. COMMISSIONER CARON: Exactly. CHAIRMAN STRAIN: But if they're not averages then I agree with Ms. Caron, they need to be adjusted appropriately to get to that point. But we heard testimony today that -- I shouldn't say testimony, we heard comment it was averages, so -- COMMISSIONER CARON: Mr. Hancock seemed to indicate that it was an average from his conversation. But I don't know, we didn't have that conversation, so -- CHAIRMAN STRAIN: We can follow it up. I think that's what this research is about. Anybody else have any comments on this section of the LDC? (No response.) CHAIRMAN STRAIN: Staff, I think you've had a lot of input on it. Are you comfortable enough to move forward to bring something -- at some point you're going to have to decide how to bring this back to us. I suggest that we get to the uses in preserves. That'll be -- well, that's the last one. But we've got a lot of issues to get to before you might want to finalize this one, so -- okay. With that we will move on. The next one on the agenda is the 3.06.04, groundwater protection. And that starts on Page 205. And that one, rather than -- it's short, there's only one paragraph or two that's written over. Does anybody have any questions of Steve on Pages 205, 206 or Page 121 September 26, 2008 207? COMMISSIONER KOLFLAT: What was the confusion? CHAIRMAN STRAIN: I'm sorry? COMMISSIONER KOLFLAT: It says the reason is to prevent confusion. I want to know what was the example of the confusion. CHAIRMAN STRAIN: That's under your reason on Page 205, Steve. Would you explain the language on your reason. MR. LENBERGER: There was confusion -- I'm looking at the zoning maps, whether the special treatment regulations which apply to ST areas and area of critical state concern ST areas apply to well fields as well. And the wellfields are also indicated as a special treatment area on the zoning maps. So we wanted to clarify that those special treatment areas, the wellfield special treatment areas are regulated under a different section of the code. That's what we're clarifying. CHAIRMAN STRAIN: That issue actually came up from this board at one of our meetings. MR. LENBERGER: Oh, did it? CHAIRMAN STRAIN: Yeah. Okay, any other questions or comments? (No response.) CHAIRMAN STRAIN: If there's none, then is there a motion to recommend approval for LDC Sections 3.06.04 and 4.02.14? COMMISSIONER CARON: So moved. CHAIRMAN STRAIN: Motion to? COMMISSIONER CARON: Approve. CHAIRMAN STRAIN: Recommend approval. Seconded by Commissioner Schiffer. COMMISSIONER SCHIFFER: Right. CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. Page 122 September 26, 2008 COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. All opposed? (No response.) CHAIRMAN STRAIN: Motion carries 5-0. By the way, motion maker and motion second, you're acknowledging also the confirmation with the GMP? COMMISSIONER SCHIFFER: Yes. COMMISSIONER CARON: Correct, yes. Thank you. We should know to say that. CHAIRMAN STRAIN: I know, I forgot. I'm losing my lead. It's coming out the middle here. How do I keep -- these mechanical pencils. Okay, we're on to 4.08.07, SRA designation, Page 209. It's a one-pager. Actually, just a correction to a reference to a subsection. Anybody have any questions on that section? Ms. Caron? COMMISSIONER CARON: I didn't have a correction, but I thought it was only good form that you spell out Stewardship Receiving Area designation right in the beginning, instead of SRA designation. It should be 4.08.07, Stewardship Receiving Area parens SRA designation. It's only good form to spell it out to begin with, and then you can use your abbreviation all throughout the rest of it. But people ought to know what you're talking about to begin with. CHAIRMAN STRAIN: We did add an acronym list to the LDC. COMMISSIONER CARON: I understand. But I think in the beginning of every section it ought to be spelled out at least once. CHAIRMAN STRAIN: Is there a motion to recommend approval with finding it consistent with the GMP for 4.08.07? Page 123 September 26, 2008 COMMISSIONER KOLFLAT: So moved. CHAIRMAN STRAIN: Mr. Kolflat made the motion, seconded by Mr. Schiffer. Discussion? All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? MS. FABACHER: Does that include Ms. Caron's remark about the section head? CHAIRMAN STRAIN: Yeah. I wasn't going to repeat all the remarks -- MS. FABACHER: Okay, all right. I'm just getting clarification CHAIRMAN STRAIN: Yeah. Unless somebody objects during the discussion of the remark, I would assume it stays in. MS. FABACHER: Okay. I just want to make sure we know what you want. Thank you. COMMISSIONER CARON: And that may even come about when they redo the LDC, you know, Mark White may handle that. But I just thought it -- CHAIRMAN STRAIN: Okay. The next item, 8.06.03, the EAC powers and duties, on Page 211. Okay, and there's two changes. They occur on Page 214 and 215. Are there any questions on Page 214? (No response.) CHAIRMAN STRAIN: Steve, just out of curiosity, is the issue on Page 214 in reference to the submittal requirements for permits that -- or is this independent of that? MR. LENBERGER: It's in relation to the EIS amendment. Page 124 September 26, 2008 CHAIRMAN STRAIN: Because we're modifying the EIS amendment. MR. LENBERGER: Right. And this is in relation -- goes hand-in-hand as far as waivers from the EAC hearing with the EIS waiver -- the EIS requirement. So they're kind of tied together. So we modified this as well. CHAIRMAN STRAIN: Okay. But if we -- say the EIS requirement, 10.02.06, does not get approved or comes back with substantial changes, will it have any impact on this language? Because if it does, we may be putting the cart before the horse. MR. LENBERGER: That shouldn't have any changes on it, shouldn't affect it in any way. This is just identifying a process by which you request a waiver of the EAC hearing. CHAIRMAN STRAIN: Okay. Any questions? Mr. Kolflat, then Ms. Caron. COMMISSIONER KOLFLAT: Yes, on Page 215, why is this statement, members are expected to be available to attend all regularly scheduled EAC meetings necessary? CHAIRMAN STRAIN: I made the same note. We already have an ordinance that's supposed to deal with membership attendance, and if you miss too many meetings without an excuse you are kicked off the committee, basically. So why do we have all this here? Does anybody know? MS. MASON: Yes, I do. Again, for the record, Susan Mason with Engineering and Environmental Services Department. We had an applicant that had applied and said they would be available, they wanted to -- they were only -- they only lived here five months out of the year, they wanted to call in for summer meetings and/or not participate at all in the summer. And it was simply to clarify so we didn't -- that person didn't meet the threshold of an application that would go to the board, and then the EAC might have a problem with quorum and the like. Page 125 September 26, 2008 CHAIRMAN STRAIN : Well, I've got a question. First of all, if someone calls in, are they allowed to vote? MS. MASON: We haven't allowed people to call in for EAC meetings that I know of. CHAIRMAN STRAIN: Let's just go back to the question. If people call in to a meeting are they allowed to vote? MS. ASHTON: For the record, Heidi Ashton, Assistant County Attorney. There is a mechanism where members can participate by telephone. You have to have a quorum of the people already at the meeting. And then those members make a determination that there's extraordinary measures that would warrant participation by telephone. CHAIRMAN STRAIN: Okay. Those people calling in by phone allowed to vote? MS. ASHTON: Yes. CHAIRMAN STRAIN: Okay, so someone could vote by phone. Do they have to have -- could that person on the phone make the quorum? MS. ASHTON: No. CHAIRMAN STRAIN: Okay. Then I'd -- Mr. Kolflat's point, though, is well made. If this is written into the EAC standards, wouldn't you want the same thing to apply to all boards in the county? We would have the same concern then, wouldn't you? And if that's the case, why aren't we changing the ordinance that lays out the attendance requirements, rather than changing a single committee in the LDC? Do we know? Noone knows why this got -- MS. ASHTON: My recommendation would be to omit that language and have it governed by the advisory board ordinances. CHAIRMAN STRAIN: Okay. And I would recommend if this is a problem that the advisory board ordinance is what gets fixed because you want to fix it for all, not just for one. Page 126 September 26, 2008 Good point, Mr. Kolflat. Anybody else? (No response.) CHAIRMAN STRAIN: So I think the recommendation is to strike that added language on Page 215 and we go back to Page 214. Ms. Caron? COMMISSIONER CARON: Yes, I just had a question on 214, C. What you're talking about here are ways that you can request a waiver to an EIS, right -- or I'm sorry, to an EAC hearing? MR. LENBERGER: That's correct. COMMISSIONER CARON: So would you just explain to me C? Under what circumstances does staff administratively approve ST zoning? MR. LENBERGER: There are different criteria. There's a bunch of them. I can get the code and read them to you. But when it most often comes up are single-family residences on Keewadin Island. If they're below the 15 percent site alteration criteria then they would get administrative approval of the ST permit to build their home. That's for single-family. COMMISSIONER CARON: But there's a list-- MR. LENBERGER: Yes, it's in the code. I -- get that -- COMMISSIONER CARON: Yeah, thank you. Okay. CHAIRMAN STRAIN: On number D, where it says an EIS with approved preserves which are consistent with the conservation and CCME element. Is that at the time the EIS was originally written? Meaning if someone comes back in do they have to redo their EIS in order to meet the criteria of D, or is that a one-time event? MR. LENBERGER: I'd have to go through the EAC -- I mean the EIS ordinance. That would be addressed in there, it's not here. CHAIRMAN STRAIN: Okay. Anybody else have any questions? Page 127 September 26, 2008 (No response.) CHAIRMAN STRAIN: I think staffs got the clarification. Is there any public speakers? Mr. Hugues? MR. HUGHES: William Hughes, Chairman of the EAC. N one of this changes our ability to call for review of anything that we feel is necessary? CHAIRMAN STRAIN: I don't know what your abilities are. I guess the county attorney would have to answer that. I'm not sure what your enabling act provides for you all -- MR. HUGHES: Apparently the enabling act allows us, if we see any action before this board or the Board of Commissioners that we deem necessary for review for public exposure, is within our right to request that. CHAIRMAN STRAIN: I don't recall that. Because the way that I remember it, the chairman of the planning commission or the chairman of the BCC can remand stuff back to you. But if you had the right to call it back yourself, I'm not sure there's a need to have that specific language -- MR. HUGHES: I think that's the way I understand it. Could we have a clarification on that? MR. LORENZ: Mr. Chairman? CHAIRMAN STRAIN: Yes, sir. MR. LORENZ: If you look at, I believe the paragraph -- the top paragraph that we haven't made any changes to. Bill, help me -- this is the language I think you're referring to? CHAIRMAN STRAIN: Yeah, that's the-- MR. LORENZ: The EAC shall also review any petition which requires approval of Collier County Planning Commission or Board of County Commissioners where staff receives a request from the Chairman of the EAC, CCPC or BCC for that petition to be reviewed by the EAC. So it does extend to simply the chair of the EAC as well. CHAIRMAN STRAIN: Right. So you -- I think you're the chair Page 128 September 26, 2008 of that board? MR. HUGHES: That is correct. CHAIRMAN STRAIN: Yeah, you could request it. But the board as a whole, I don't know -- I mean, you could seek a recommendation like I do with this -- MR. HUGHES: Bill is correct in the way the verbiage is. CHAIRMAN STRAIN: That hasn't been changed. MR. HUGHES: All right, good. Thank you. CHAIRMAN STRAIN: Okay, anybody have any questions? Mr. Hancock? MR. HANCOCK: Mr. Chairman, Tim Hancock with Davidson Engineering. If I could draw your attention to Page 214, please, Item D. Ijust simply raise this issue. You may recall the conversation we had where if your preserve may meet Land Development Code requirements, sometimes we would get a comment that we don't meet the GMP. It seems to me that under Item D it opens that door where it states an EIS with approved preserves which are consistent with the conservation and coastal management element of the Growth Management Plan. Shouldn't it actually say meets the requirements of Land Development Code Section such and such, which is the implementing form of the Growth Management Plan? CHAIRMAN STRAIN: Good point. Steve? I mean, we don't want -- the interpreting language of the GMP is supposed to be the Land Development Code. And the last thing we would need is independent review and interpretation of the GMP. So shouldn't it be LDC? MR. LORENZ: That's correct. There may also be -- when we get to the EIS section, you may want to keep this as an out. The EIS section does talk about consistency with the GMP as well. So you may want to look at the language in the EIS section to Page 129 September 26, 2008 ensure it has that tieback in the Land Development Code as the implementing LDR. But I understand. CHAIRMAN STRAIN: Thank you, Tim. COMMISSIONER CARON: But you're okay with this change here. MR. LORENZ: Yes. CHAIRMAN STRAIN: Okay, so we've got two changes. Basically we're going to -- Item D would be changed to LDC -- oh, Bruce, you silently snuck up there. I didn't see you. Go ahead. MR. ANDERSON: Bruce Anderson. I'd like to, in paragraph one, number one, where it says you may request a waiver. If you're going to request it and you meet one of those criteria, we ought to say in there, and the waiver shall be granted. Because anybody can request anything. CHAIRMAN STRAIN: Any comment? Mr. Schiffer? COMMISSIONER SCHIFFER: Should the word be any petitioner may receive a waiver, instead of request? MR. ANDERSON: Well, or shall receive a waiver. I had written it -- and I have no pride of authorship -- after where it says requirement, then I would have inserted, and the waiver shall be granted. CHAIRMAN STRAIN: Well, Brad's kind of right, though, it's simpler to say any petitioner shall receive a waiver to the EAC hearing requirement when one of the following conditions are met. Then you've got your conditions and it takes the ambiguity out of it. MR. ANDERSON: That's perfect. I must have misunderstood him. Yeah, that accomplishes -- CHAIRMAN STRAIN: Okay? MR. ANDERSON: Yes. Page 130 September 26, 2008 What's the thinking behind the removal of number four? CHAIRMAN STRAIN: Number four, what page are you on? MR. ANDERSON: One. In paragraph one they have the sub sentences. It's sentence four -- CHAIRMAN STRAIN: Oh, okay. MR. ANDERSON: -- in that same paragraph I was reading from. MR. LENBERGER: I could answer that. It's incorporated in D and E. We don't want to just have it's five years old, you have to do an EIS type thing. So we included D and E actually addresses those concerns. CHAIRMAN STRAIN: Wouldn't D and E then mean that there's no limitation? Once it's approved, it's considered approved. And so actually by putting it back in you would be making it more difficult rather than less. Is that the reading? MR. ANDERSON: No, no. I tell you, I smiled over there at Susan, because I've just been going through this on another proj ect where they did have an approved EIS. And at the time it was approved and went before the EAC, it did meet the preserve requirements of the compo plan that was then in effect. But now they are being required to rewrite a new -- rewrite the EIS, supplement it at least, and demonstrate now that they meet the current criteria. And I want to try to avoid that in the future for others. MS. MASON: Excuse me, if I can, that is why we want to take out the five-year requirement. Because that EIS is over five years since it was approved and reviewed. I believe it was around eight years old when that one was done. And so they did have to come in. Because of the way it was worded, it had to have an EIS update and go through the review and EAC hearing since it's significantly changed. Page 131 September 26, 2008 I'm not 100 percent certain that that proj ect in particular would not still have to update the EIS because of the nature of the changes they made. However, at least the five-year rule would not ever apply. We've had a lot of situations where they go -- they have to go through the process of updating an EIS for something that really turns out to be exactly what got approved before. And it's a lot of expense for the applicant and staff, and there's not any real change. CHAIRMAN STRAIN: On D then, maybe to clean it up we could say something to the effect, an EIS with approved preserves which are consistent with the LDC at the time the EIS was submitted. I mean, if they're submitted and got approved under standards at the time, how can we make them come back and have -- MS. MASON: If the Growth Management Plan had changed and it was no longer consistent. I think the LDC, I don't even know what some of the standards might have been in 1991, say if it was a really old LDC. I would have to take some time to look to see if what that would allow to remain approved. There could be things out there that might be not considered -- CHAIRMAN STRAIN: Well, I think Bruce has got a good point. Is this that Youth Haven project, for example, or is that another one? MR. ANDERSON: Doug's handling that one. CHAIRMAN STRAIN: The reason -- he's got a good point. If a proj ect was approved today, just because we change our rules and they come in and need a modification 10 years from now, the entire site shouldn't have to be reevaluated and reapplied under new standards. And that's what's been happening. Because you've got sites like Youth Haven who don't have the -- without losing all the remaining land that they could build on. If they're reassessed under new standards, it's a whole new ball game. We're discouraging people from making improvements. MR. LORENZ: If I may. Page 132 September 26, 2008 CHAIRMAN STRAIN: Sure, go ahead, Bill. MR. LORENZ: There's a couple things here. And there's one open question I may ask the county attorney's office to weigh in on, and that is the consistency with the Growth Management Plan. Our understanding is the application -- is that at some particular point in that, let's call it development cycle from zoning to an ultimately building permit, that there needs to be consistency with the Growth Management Plan. And so the one thing we need to reconcile here is to ensure that we do have consistency with the Growth Management Plan even though it is being implement through the LDC. So that's one question that I would have. Secondly, sometimes the PUD's will talk about that it needs to be consistent or brought -- be consistent with either the current Growth Management Plan or the Land Development Code, you know, as it may be amended in the future. So we just have to make sure that as we work through this language we don't either usurp those provisions or have a conflict with those provisions. Again, I want to kind of get back to the county attorney's office and just talk about when do we need to be consistent with the GMP. MS. ASHTON: Well, all projects are required to be consistent with the Growth Management Plan, you know, from start to finish. The question would be -- and you've also mentioned the Land Development Code as well. I think the question would be whether somebody has a vested right if they've started to proceed forward with their project and then there was a change to the law. Sometimes the PUD also gives them some kind of right, because it ties it into the Land Development Code that existed at the time that they adopted the PUD with some of the older PUD's. So have I answered your question? CHAIRMAN STRAIN: I don't know. Page 133 September 26, 2008 MR. LORENZ: My point is it's somehow complicated to figure out what particular standard do we need to hold it to, since there's some of these other factors that are going on? That's my dilemma in terms of drafting this language. MS. ASHTON: I don't think it's necessary to put language that it has to be consistent with the Growth Management Plan, because that's a requirement that exists whether it's in there or not. CHAIRMAN STRAIN: Well, I think the problem I've got now, especially after Bruce pointed it out, is if a project comes in, and say in 1985 it was approved to be built and the preserve standards were 10 percent at the time and they built out and create the proj ect at the 10 percent and everything is fine. They come in today. They bought a little piece of land next door that's a couple acres. But the new requirement for preserve for them to add that piece to their property means they've got to have 15 percent, and now it's 15 percent of the whole. And the prior EIS is taken off the books and they're now stuck with all the land they bought to expand is going to have to be used up to provide for this new 15 percent criteria that wasn't even in effect when they conceived their project 20 years ago. That's a real case concern, and I'd like to know how this addresses that. MS. MASON: I don't think this was intended to address that. That's another section of the LDC amendments that you'll be looking at. This is intended to address things -- say a conceptual site plan or for a PUD that was approved showed a preserve in an upland and then now RCW's or somebody moves in or a bunch of gopher tortoises that weren't there when it was first evaluated have moved into that area. The ranking of both the LDC currently and the Growth Management Plan require that that area becomes the highest ranking preserve on the site and we couldn't accept something that was already in there just because it was approved on a conceptual site plan. Page 134 September 26, 2008 And that can work kind of both ways for applicants. If they show a great location on a conceptual site plan that we can accept, but circumstances change and they want to relocate the preserve, as long as it's consistent with the rules at the time they come in for SDP the preserve may end up somewhere else. So it's a flexibility that can -- it keeps you consistent with the LDC but it also can sometimes benefit the developer as well -- in a previously identified preserve location. And I think what this section was intending to clarify was only have the EAC hearing when there's real environmental issues to be discussed and not have it be just an arbitrary five-year deadline if things haven't changed that warrant a hearing. CHAIRMAN STRAIN: Bruce, do you have any suggestions as to -- I'm concerned, since you pointed that out. And I know that this section is only to deal with what is heard by the EAC, but if the releases from going before the EAC aren't written right here, it's not going to help whatever else is in the code. So-- MR. ANDERSON: Correct. CHAIRMAN STRAIN: -- I'm real-- and I understand your concern about the EIS, I know that's a real issue and it's happening now. So any suggestions? MR. ANDERSON: Well, I think this needs to be reviewed and tweaked perhaps in connection with the EIS standards that are proposed to be amended, because they're all part of the package. CHAIRMAN STRAIN: I don't have a solution for it sitting here today. MR. ANDERSON: I don't either. CHAIRMAN STRAIN: And maybe if staff gets some ideas when we get to the next item, which is the EIS package, you can come back and figure out how this one should be fixed. We have provided you with some suggestions that I'm sure Page 135 September 26, 2008 you've made notes on. MR. ANDERSON: Thank you. CHAIRMAN STRAIN: Thank you. Any other public speakers on this matter? Go ahead, Mr. Hughes. MR. HUGHES: William Hughes, Chairman of the EAC. The EAC is a quasi-judicial advisory council here in Collier County. I have no problem with waivers on some of these issues. However, as long as we maintain the right that if something has changed and that we deem necessary to bring to the public, that that right still exists. I understand the business aspects of costs, timeliness. However, they're still, because of a system of checks and balances, of discovery of information, to supply this board and the Board of County Commissioners information pertinent to the environmental resources of that site, that opportunity should still be there. Thank you. CHAIRMAN STRAIN: Thank you. Ms. Ashton, do you know what are the criteria that need -- say a project was coming through, the EAC wanted to review it but it didn't need to go to them for review. What criteria are in place that would provide then the opportunity to ask to review it? MS. ASHTON: You referred to that section earlier, which is on your Page 214. It's the end of the last paragraph. And it says, the EAC shall review any petition which requires approval of the Collier County Planning Commission or the board of -- CHAIRMAN STRAIN: Right, we've all read it. We've all read it. But what's the criteria? It says the chairman can request it, based on what? MS. ASHTON: Well, I don't think there is any criteria, expect there is supposed to be a relationship with environmental issues. I Page 136 September 26, 2008 think if you can't make that connection to the environmental, then I think the Board of County Commissioners has given direction that they don't want boards to handle issues that are outside their area of expertise. CHAIRMAN STRAIN: Okay. I just wanted to make sure to follow with Mr. Hughes' reasoning that there is criteria there, they still can ask for it if they can link it to an environmental purpose. And it still can be done -- would that be regardless then of what A through E, whatever language has evolved through A through E? So that if there was a waiver that was granted, he's -- I think what he's trying to say is if this section requires a waiver, they still want the right to pull it back in. I'm not sure that -- MS. ASHTON: I think that still exists, and I don't think this section changes it. CHAIRMAN STRAIN: Okay. Well, then I think you've got some changes already. We need to clarify this Item D, but we'll probably do that through the next discussion. Okay, we'll move on to Item 10.02.06, submittal requirements for permits. It's on page 237. COMMISSIONER CARON: Did you need us to take a vote on CHAIRMAN STRAIN: No, I think we've got to-- COMMISSIONER CARON: -- just want to wait until -- CHAIRMAN STRAIN: -- we're going to wait until we get done with EIS issues. And that's starting on -- no, the EIS issues aren't the next once. I don't know when they come up. Submittal requirements for permits. Yeah, the EIS issues aren't going to be coming up for -- probably later on. Where are those issues, Bill? Do you know what page they're on? MS. FABACHER: That's 10.02.02, Page 219. Page 137 September 26, 2008 MR. LORENZ: 219. COMMISSIONER CARON: 219. And it's-- CHAIRMAN STRAIN: It's not coming up till next -- okay. MR. LENBERGER: Page 217. CHAIRMAN STRAIN: So we'll just keep going in order. It's not the next one. The next one is vehicles on the beach, on Page 237. Start on Page 238. 237 is the intro. Do you have any unique introduction, Steve, or do you just want us to ask questions? MR. LENBERGER: Ask 'em. CHAIRMAN STRAIN: Okay. Sometimes if staff wants to say something in a presentation, just let me know. Otherwise, I'll just keep moving forward. Any questions from the commission on Page 238? (No response.) CHAIRMAN STRAIN: Well, I've got a few. Let's start with A, 1.A. To operate or cause to operate a hand, animal or engine driven wheel, track or other vehicle. Okay, Sunday mornings, if you go out by Clam Pass, there's a guy in a kayak. He sometimes puts it on a little blown-up dolly that -- where the tires fit inside the hull and they come out and they assemble and they set on the back and you can walk down the beach with it. You need to go get him. He's got a beard like mine, he's got a pony taillike mine. So now are you telling me I can't run my kayak on the -- I can't walk down the beach in my kayak? You're hitting close to home here. Because the way I read it, it's a little bit of a worry. COMMISSIONER KOLFLAT: I move we adopt it. (Laughter. ) CHAIRMAN STRAIN: Thanks, Tor. I'll tell you, always in my corner over there. COMMISSIONER SCHIFFER: Mark, do you consider yourself Page 138 September 26, 2008 the animal driven or the hand driven? CHAIRMAN STRAIN: Yeah. But honestly, would you catch situations like mine? Because there are these little -- they hold three pounds of air and they're little grey blow-up balloon tires that you roll across the sand when you're trying to portage from one spot to another. And I don't want to see that be a problem, but the way it's written I'm concerned it might be. COMMISSIONER SCHIFFER: But Mark, I don't ever see you driving it across the dune or running it through the vegetation. CHAIRMAN STRAIN: Actually, I hand carry it. I have to roll it across the dune, yeah. COMMISSIONER SCHIFFER: You actually do? CHAIRMAN STRAIN: I go from one side of the Clam Pass over the dune out to the water. COMMISSIONER SCHIFFER: Okay, then you're under arrest. COMMISSIONER CARON: Then you're under arrest. CHAIRMAN STRAIN: I know. I don't want to be. Do it in between BCC-CCPC meetings, will you. COMMISSIONER CARON: I just want to say that none of that is underlined. So it's going to say you're under arrest. MR. LORENZ: Yes, that's not environmental review, that's code enforcement. CHAIRMAN STRAIN: Well, boy, they're going to have a field day. MR. LORENZ: This is old -- obviously this is just -- COMMISSIONER CARON: Yeah, it's old language. CHAIRMAN STRAIN: I know, I don't read all these sections until they're in front of us, so -- and it says -- the section you did add, can our laws apply to anywhere besides Collier County, Florida? Do we really need to say Collier County, Florida? I mean, is that necessary? Page 139 September 26, 2008 MR. LORENZ: I don't think it is. Although, I believe there is some example I have where somebody wanted to make sure we put in within Collier County, Florida. So I don't have a problem with it being out, because we can only regulate in the jurisdiction we're authorized to regulate in. CHAIRMAN STRAIN: This is all that verbiage that new code writer keeps saying is -- we don't need to have in here, it seems like. MR. LENBERGER: If we're going to remove it, then I should go through and -- I think it's in other places in here too. I would have to check and remove it from those portions as well. CHAIRMAN STRAIN: Well, I think wherever it comes up and it's been added, you don't need to re-add it. Go ahead, Ms. Caron. COMMISSIONER CARON: Well, it's sort of interesting, because obviously here in this first paragraph it was originally crossed out and now it's been added in. So somebody must have had some reason. Do we have any clue? CHAIRMAN STRAIN: I mean, you crossed it out and you put it back in. COMMISSIONER CARON: Right, and then it got put back in. CHAIRMAN STRAIN: Mr. Kolflat? COMMISSIONER KOLFLAT: That was my question, why they put it back in, if there was something I was missing here. MR. LENBERGER: I was keeping it in the context of the code, because this section mentions it the same way all the way through. I could go through and delete all that. That's not a problem. I was just keeping it in the same context, that's all I was doing. CHAIRMAN STRAIN: If you deleted it once, it won't hurt to delete it again. MR. LENBERGER: Yeah, I have to go through the whole thing and delete where it says that. But that's not a problem, I can do that. CHAIRMAN STRAIN: Okay, any -- we're still on Page 238. Page 140 September 26, 2008 COMMISSIONER VIGLIOTTI: Page 239 -- CHAIRMAN STRAIN: 238. COMMISSIONER VIGLIOTTI: Okay. Well, 239.C exempts you: Baby buggies or toy vehicles. You could fall under the toy vehicle with your kayak. CHAIRMAN STRAIN: I actually circled that, I had a question on that one -- COMMISSIONER VIGLIOTTI: There you go. COMMISSIONER SCHIFFER: I have a 38 question. CHAIRMAN STRAIN: 238? COMMISSIONER SCHIFFER: Yeah. Other than construction vehicles, it appears these permits never expire; is that right? MR. LENBERGER: That's correct. COMMISSIONER SCHIFFER: So are they transferable or anything or -- MR. LENBERGER: It's for the life of the vehicle, not the person who owns it. But that's a good point. COMMISSIONER SCHIFFER: Maybe you should note that -- MR. LENBERGER: Yeah, for the purpose, you know, it was permitted for originally. So yeah, that's a good point. COMMISSIONER KOLFLAT: Mark? CHAIRMAN STRAIN: Yes, sir, Mr. Kolflat. COMMISSIONER KOLFLAT: Does the permit travel with the vehicle or travel with the person? MR. LENBERGER: The vehicle. CHAIRMAN STRAIN: Says the permit issued in accordance with this section shall be valid for the time the vehicle is in operation. If it's sitting parked, is it considered in operation? MR. LENBERGER: Say that again? CHAIRMAN STRAIN: If it's parked, is it in operation if the engine is turned off? MR. LENBERGER: We were -- the intent there was to say as Page 141 September 26, 2008 long as it was being used for that function, the permit is good. So if that thing falls apart or -- CHAIRMAN STRAIN: Why don't we just say that, though. The permit's good for as long as that vehicle is being used for the function in which it was permitted. MR. LENBERGER: Being used for the function. Okay, sure. MS. ASHTON: And I also think you addressed it, but it would be a good idea to put this in the code as well that it's not assignable. CHAIRMAN STRAIN: Okay. Now we're on Page 239. Questions on 239? Did you finish yours? COMMISSIONER VIGLIOTTI: Just that you have an escape clause in C with your toy. CHAIRMAN STRAIN: We'll see, when I get down there and ask what the word large means. 239, the top after the -- in that underlined sentence, and government entities responding to emergency situations. Wouldn't we put a period there? We don't care what they're due to -- MR. LENBERGER: Right, that's -- CHAIRMAN STRAIN: -- if it's emergency, it's emergency. MR. LENBERGER: Okay, that's fine. CHAIRMAN STRAIN: Down on I, Mr. Vigliotti's correct about the large pneumatic tires. I have a problem. Does that mean if you have a pneumatic tire with three pounds of air and it's not large, it doesn't need a permit? MR. LENBERGER: The pounds per square inch is based on a formula developed by the state, which is what we have on our application. I can put it up on the visualizer. CHAIRMAN STRAIN: Well, I'm back to the -- I know it sounded like a silly application that I know about personally, but it may involve others who use canoes or anything else. First of all, you say large pneumatic tires. And I guess your Page 142 September 26, 2008 definition of large is if they're 10 psi or greater. If that's the case, that's fine. So if you have a three psi tire, you're not restricted then; is that right? MR. LENBERGER: Right. As long as it meets the psi, you should be okay. COMMISSIONER VIGLIOTTI: Can we pull out the large? MR. LORENZ: May I? CHAIRMAN STRAIN: Go ahead. MR. LORENZ: Steve has shown for the formula, the 10 psi is basically that pressure that's on the ground, and that can vary depending upon the size of the tire and the weight of the total load of the vehicle. So the operative principal here is not the 10 psi tire itself, but it's that bearing pressure on the ground. I would certainly suggest we can take out large pneumatic tires, because as long as we've got a pressure that's less than 10 psi bearing pressure on the ground, then that's the whole intent of the formula. CHAIRMAN STRAIN: Mr. Schiffer, then Mr. Vigliotti. COMMISSIONER SCHIFFER: Bill, don't you think it would be smart to actually put that little equation in there instead? Because ultimately somebody who's reading this would go to this form to fill out. They may as well -- rather than try to describe it, you may as well make it a calculation. MR. LORENZ: I think that's fine. COMMISSIONER SCHIFFER: It would be very difficult I think to figure out what the tire footprint would be, wouldn't it? After you load it, I guess you would have to, you know load it up the way you wanted, you'd have to go out and measure essentially what square inches the tire is taking up. MR. LORENZ: Correct. COMMISSIONER SCHIFFER: You can do it, though. But I think rather than -- just put that formula in there or reference it Page 143 September 26, 2008 somewhat. And Mark, doesn't this mean you could essentially get a permit to do that? CHAIRMAN STRAIN: You mean you're telling me I need a permit to go to the beach and paddle with my kayak? COMMISSIONER SCHIFFER: Right. CHAIRMAN STRAIN: Yeah, well-- COMMISSIONER SCHIFFER: And hopefully it will probably be -- CHAIRMAN STRAIN: We're no longer America, because that shouldn't be -- that would be a disgrace, so -- of course there's a lot of other things that we might want to complain about too. COMMISSIONER SCHIFFER: Let's not start that list. CHAIRMAN STRAIN: No. Why don't we, under C, put in some exemptions for applications like I'm talking about. Are you guys intending to catch kayakers and people in canoes and things? MR. LORENZ: No. CHAIRMAN STRAIN: Well, why don't you just put that there and stop -- I know it's not part of the change but since you're bringing in criteria you may have to create a change. COMMISSIONER SCHIFFER: So why don't we add to that non-motorized personal craft, trailers, carriers, whatever you would call it. CHAIRMAN STRAIN: There are -- there's baby buggies, the ones that you can carry -- you can have when run behind you. They've got tires on them. Things like that I know you don't intend. So I think if you're going to put i in there, as you've underlined, then we ought to clarify some more exceptions in C so there's no mistaking who can be asked to do what. And I'll let you come up with that list, I think that's the best way to handle it. Anybody have any questions on 239,240 or 241? It's just substituting in the county manager. Page 144 September 26, 2008 (No response.) CHAIRMAN STRAIN: 242,43 and 244? (No response.) Item #4B LAND DEVELOPMENT CODE (LDC) AMENDMENTS CHAIRMAN STRAIN: If there's no other questions, I think with the changes we've suggested, staffs going to need to come back with this one. So let's leave it like that. And that takes us down to Section 3.04.03, listed plants, on Page 141. Okay, we've been through this one once. Where did we leave off on it? You guys were going to bring it back, right? COMMISSIONER CARON: Yeah. CHAIRMAN STRAIN: Did anybody get corrective language? COMMISSIONER SCHIFFER: I did. CHAIRMAN STRAIN: Did you? COMMISSIONER SCHIFFER: Well, what's the date on the bottom of yours, I guess. CHAIRMAN STRAIN: That's what I'm wondering. I don't seem to have it. COMMISSIONER SCHIFFER: 7/30/08. COMMISSIONER VIGLIOTTI: 7/23. COMMISSIONER CARON: 7/23/08. CHAIRMAN STRAIN: That's what I've got, but that isn't the corrective language, is it? COMMISSIONER CARON: Yes, it is. Well, it is new because MR. LENBERGER: That's the language I have. That should be the correct version. Page 145 September 26, 2008 COMMISSIONER SCHIFFER: I have actually 7/30. CHAIRMAN STRAIN: Okay. Because I had more written on that than I did on the original unfortunately. So that's why I wasn't sure I was looking at the right one. MR. LENBERGER: That's the most up to date that I can see. CHAIRMAN STRAIN: If the most up to date is 7/23/08 as shown up on the footnote on Page 141, that's the one we'll read off of today. Is everybody there? COMMISSIONER SCHIFFER: I actually have 7/30/08 on mine. CHAIRMAN STRAIN: 7/30/08? COMMISSIONER CARON: No, that's the one we made corrections on and sent back. CHAIRMAN STRAIN: Then 7/23/08 can't be the newest one then. COMMISSIONER SCHIFFER: We sent it way back, we sent it back in time. MR. LENBERGER: You should look at the revision date on the top of Page 142. It says other notes, revision date above the line. And it should say July 23rd, the last date listed there. CHAIRMAN STRAIN: So Page 142, the revision date on the top, third line down, July 23rd, 2008. That's the one we'll be reVIewIng. Everybody have it? COMMISSIONER SCHIFFER: No, mine says June 24th. Yet the bottom date, which is your file date, is 7/30. CHAIRMAN STRAIN: Well, if yours says June 24th, you don't have the one with probably the changes, because July 23rd is the date we should be using. COMMISSIONER VIGLIOTTI: 7/23? CHAIRMAN STRAIN: No, no, look at this page right here. You have the right one. Page 146 September 26, 2008 COMMISSIONER SCHIFFER: But oddly, my date on the bottom is advanced. COMMISSIONER CARON: He's right. CHAIRMAN STRAIN: That's not the date. You look up here. That's the version date. Mr. Kolflat, do you have the July 23rd of 2008. COMMISSIONER KOLFLAT: Yes, July 23rd. CHAIRMAN STRAIN: Brad, you don't, right? COMMISSIONER SCHIFFER: No, but it's funny that my bottom date, I don't know where that comes from, but -- CHAIRMAN STRAIN: I don't either, but I think with only five of us here today, you make the quorum, and if you haven't got the right documentation, it isn't really a good thing. So we could -- COMMISSIONER SCHIFFER: I'll share with Tor. CHAIRMAN STRAIN: We're going to still finish this next week. So why don't we put this one off until you get -- could you make sure, Catherine, he gets the right information? MS. FABACHER: I will. I guess he didn't change it out. Because my records indicate you got that on the August 28th in your little packet that you got on the 28th. You got this version. So it could possibly be that he neglected to change it. But I will get him the right one. CHAIRMAN STRAIN: We're not going to make it through all this today anyway, so this is one we can put off till next week. MS. FABACHER: No problem. COMMISSIONER SCHIFFER: But one question, Catherine. At the bottom of this, which is where we kind of wanted to track our dates, how does that date get developed? Because, like I said, mine is 7/30/08, which is further in advance than the one you guys are -- and I have been I think pretty good at putting them in. COMMISSIONER CARON: He's right. MS. FABACHER: What now? Page 147 September 26, 2008 COMMISSIONER CARON: He's right that on our original one that we originally worked for, it says 7/30/08 -- COMMISSIONER SCHIFFER: The footnote. COMMISSIONER CARON: -- however, the revision is now 7/23/08. MS. F ABACHER: You're correct. I can't explain it except that they took an earlier version and remodified it instead of the 7/30 version. But I do believe you have the correct version. CHAIRMAN STRAIN: Okay, then Section 3.04.03, listed plants, we'll put off till next week and we'll go into 3.05.07 A and B, native vegetation definition. That's on Page 165. That's again new language. And the revision date on Page 166 under other notes, version date should be August 22nd, 2008. Okay, Mr. Vigliotti? I've got it. Donna? Tor? You okay with the August 22nd, 2008 on Page 166? What about you, Brad? COMMISSIONER SCHIFFER: I actually have August 11th. I don't know what happened. Let me see. I've got everything else here. CHAIRMAN STRAIN: You're not going to have the most recent then. COMMISSIONER SCHIFFER: Go ahead. Don't wait for me on that. I'll look at Tor's. CHAIRMAN STRAIN: Why don't we pick up all the ones that we know you've got. Then if we don't have time after those are done then we'll go back and take a look at these. But we'll give you the benefit of having -- if we're going to hear anything next week, I'd rather hear the ones that you don't have, so you have time to read them. So do you have Section 10.02.02 EIS thresholds, Page 219? And the revision date on that would be August 22nd, 2008. It's on Page 220. COMMISSIONER SCHIFFER: No. I know I just put these in over the weekend, so why would I have -- Page 148 September 26, 2008 COMMISSIONER KOLFLAT: What was the page on that? CHAIRMAN STRAIN: Page 220. You should have August 22, 2008 on the upper portion of it. Tor's okay? Okay, so Brad, is yours not -- Brad's not again? COMMISSIONER CARON: Brad's the only. CHAIRMAN STRAIN: Okay, let's go to Section 3.05.07 H.1.d. It's on Page 185. Then the Page 186 actually has the date of September 17th, 2008. We're on page 186. Bob, do you have it? COMMISSIONER KOLFLAT: September 16th? CHAIRMAN STRAIN: September 17th on Page 186. COMMISSIONER KOLFLAT: I have September 16th. CHAIRMAN STRAIN: No, no, you have to look on the -- the page he was on, Donna. On page 186 it should say -- mine says September 17th. Do you have it? COMMISSIONER CARON: Yeah, mine too. CHAIRMAN STRAIN: Look on this page here. COMMISSIONER SCHIFFER: Mine says 16th. COMMISSIONER KOLFLAT: Mine says September 16th. COMMISSIONER SCHIFFER: So does mine. CHAIRMAN STRAIN: Donna and I have 17th. Okay, looks like you guys -- what about you, Bob? COMMISSIONER VIGLIOTTI: No. CHAIRMAN STRAIN: No what? COMMISSIONER VIGLIOTTI: I don't have it, period. CHAIRMAN STRAIN: Okay, Mr. Vigliotti hasn't got it, Brad hasn't got it. COMMISSIONER SCHIFFER: I do have it, but it's the 16th. CHAIRMAN STRAIN: Well, nobody's got -- I got the 17th and Donna's got the 17. COMMISSIONER KOLFLAT: We got 16th. CHAIRMAN STRAIN: You got 16 and Bob has none. We're Page 149 September 26, 2008 doing great. Let's move on to Page 193. And actually the dates are on page 194 of that one and it should read September 16th, 2008. COMMISSIONER SCHIFFER: I have that. CHAIRMAN STRAIN: You have September 16th, 2008 on Page 184? COMMISSIONER SCHIFFER: Yes, I do. CHAIRMAN STRAIN: Oh, good. Tor? COMMISSIONER KOLFLAT: September 16th. CHAIRMAN STRAIN: Donna? COMMISSIONER CARON: Yes. CHAIRMAN STRAIN: How about you, Bob? COMMISSIONER VIGLIOTTI: August 11th. CHAIRMAN STRAIN: August 11 tho There is no August -- oh, yeah there is August, it's the last of -- you don't have the most recent then. Okay, we have one more we can try for before we go back and figure out what we want to do. On Page 157, that one is -- and the actual date is on Page 158. The last date was September 12th, 2008. COMMISSIONER VIGLIOTTI: August 11 tho COMMISSIONER SCHIFFER: I have that. CHAIRMAN STRAIN: Mr. Vigliotti doesn't. You do. COMMISSIONER CARON: The 12th. CHAIRMAN STRAIN: You've got 12. Tor? COMMISSIONER KOLFLAT: I haven't found it yet. CHAIRMAN STRAIN: We're on Page 158. COMMISSIONER KOLFLA T: I've got August 11th. CHAIRMAN STRAIN: Catherine, I know -- MS. FABACHER: I'm sorry, I guess we'll have to come up with another process other than just giving you the insert pages to change out, because that's kind of what we've done, and I guess it's too much Page 150 September 26, 2008 -- too hard to do. CHAIRMAN STRAIN: Well, there's a lot of paper flowing back and forth -- MS. F ABACHER: And it's true, it's true. So if you can think of a better way to try and do it -- CHAIRMAN STRAIN: The safest way is to -- those little spiral binds, those plastic ones. Each time you give a new revision put them in those and hand them to us, we can't go wrong then. It would be hard to -- if they're all in one packet. What do you think, Brad? COMMISSIONER SCHIFFER: This was good. The other thing that seems strange that I'm out because I was following the date -- you know the last thing you sent out, you actually had a date in the agenda. And I was -- everything was in -- in tune with that. MS. FABACHER: Oh, right, the agenda. Yeah, the agenda showed you which packet it came in, so -- COMMISSIONER SCHIFFER: And everything jived. I can't see why I wound up -- MS. FABACHER: If it's on the Internet, I don't-- COMMISSIONER VIGLIOTTI: I like the idea of the spiral binder if you give us a spiral -- MS. FABACHER: You want to go back to the spirals. COMMISSIONER VIGLIOTTI: Yeah, that's the most recent one we get, then we have to keep it together. COMMISSIONER SCHIFFER: The hardest part of the process though is that we make red lines in our paperwork. And then when we replace it the first thing we do is we have to look at both of them and move any comment. So if we do that with spiral, then we have to move comments that don't even apply to what we're looking at. MS. FABACHER: And it would take a lot more time to put together. We have done spiral and gone to this, gone back to spiral, come back to this. It's just difficult with all of these revisions. Page 151 September 26, 2008 COMMISSIONER SCHIFFER: Oddly, though, since you did put the date, which I thought was an excellent way to doublecheck it, and I did jive with all the dates, how did I wind up without the right stuff? MS. FABACHER: I can't explain it either. CHAIRMAN STRAIN: Okay, because I certainly can't ask people to come here for the next 30 minutes or so on issues we told them we wouldn't hear today, so we're kind of stuck. At what -- is there anything on here that we can handle today with those that are here? MS. FABACHER: Yes, we could do Page 59. COMMISSIONER SCHIFFER: Mark, let me say something. CHAIRMAN STRAIN: Yes, sir. COMMISSIONER SCHIFFER: That I do transfer comments, so the pages that I'm behind on, which those couple of sections, I don't really have many comments. I honestly could look at Tor's and we could do that, since I'm the only one. CHAIRMAN STRAIN: Well, I've got -- if that works for you, Mr. Vigliotti's got the right pages on those and we're back to the beginning then. So is Donna and Tor, so -- COMMISSIONER SCHIFFER: If I don't have a red mark on essentially an older version, then I wouldn't have a red mark on a new verSIon, so -- CHAIRMAN STRAIN: Okay. Well, then-- COMMISSIONER SCHIFFER: Let's go that way. CHAIRMAN STRAIN: Then we'll start back and we'll go back to Page 141 with the listed plants species, 3.04.03. Okay, Steve, you want to give us a -- MR. LENBERGER: I'll briefly -- CHAIRMAN STRAIN: -- kind of a background on where we went before and why we're here again today. MR. LENBERGER: Sure. The GMP requirement is on the Page 152 September 26, 2008 visualizer. And basically staff was to evaluate the need for the protection of listed plants. We did this amendment -- been through different subcommittees. It was one of the most discussed amendments for sure as far as the plant species. But we did pull out some plants. Plants I chose were ones that -- well, first I should back up here a minute. The amount of listed plants in Collier County is quite large. CHAIRMAN STRAIN: I've got it. It's over 500. And it kind of gets out of hand. MR. LENBERGER: Well, yeah, but the ones in the County is just very large, too. And a lot of those you need like a specialist to identify. MS. ASHTON: Excuse me, Mr. Chair. CHAIRMAN STRAIN: Yes. MS. ASHTON: The court reporter has indicated that she needs to take a break. CHAIRMAN STRAIN: No. THE COURT REPORTER: I just need one minute. CHAIRMAN STRAIN: That's okay. You know what, it's close enough. We'll take a --let's take a 15-minute break and come back here at two -- what's 15-minutes, yeah, 2:40. (Short break.) CHAIRMAN STRAIN: Okay, welcome back from our break. We're running out of time. We're going to lose our quorum at 3:00. So in regards to that, since some of the issues we were going to get into are rather lengthy, we're going to try to move ahead to one or two items we might be able to finish up in the next 20 minutes. And the only two that I think we can do are on Page 185 and Page 193. And those are conservation mechanisms on Page 185 and preserve management plans on Page 193. So let's try to get those two done while we still have a quorum. Page 153 September 26, 2008 And with that we'll turn to Page 185. I hate to bring up this next question, but the pages we're using now are September 17th, 2008. I don't even want to know if you don't have it. Let's just go forward. Okay, Steve, you want to give us a little quick notice as to why we're here. This is the second time we've heard this one. MR. LENBERGER: You have to -- this is -- CHAIRMAN STRAIN: Page 185. MR. LENBERGER: That's creation and restoration of native vegetation? COMMISSIONER KOLFLAT: What's the date on that, Mark? COMMISSIONER VIGLIOTTI: Immaterial. CHAIRMAN STRAIN: Page 185, the September 17th, 2008, and it's the conservation mechanisms. COMMISSIONER KOLFLAT: Brad and I have September 16th. CHAIRMAN STRAIN: Okay. That's only one day. Not a lot can happen in one day. Steve, if you're telling me you don't have the right one -- MR. LENBERGER: Now I'm starting to worry. No, I do have it. COMMISSIONER KOLFLA T: Which date do you have? COMMISSIONER VIGLIOTTI: Doesn't make a difference. MR. LENBERGER: Which version do I have? CHAIRMAN STRAIN: Yes. MR. LENBERGER: September 17th. CHAIRMAN STRAIN: Okay, good. MR. LENBERGER: Okay, we put up the GMP policy on the visualizer. And we've had a -- you had a number of questions last time. And in response to some of your questions I sent a request for legal services, which I believe you received a copy, to the county attorney's office. And Heidi was nice enough to respond, and she met with also Page 154 September 26, 2008 Bill and I, and we talked about different types of covenants and -- versus an easement, and what would be some of the pros and cons. And we put those in the -- under the reasons section, a comparison there for you. I believe -- CHAIRMAN STRAIN: Right. Well, let's go right into questions then. This is new language. It's been modified from the last time we talked about it. It's only two pages, Pages 186 and 186.1. Are there questions of the commission? (N 0 response.) CHAIRMAN STRAIN: This is why I thought we could get past -- this one done by 3:00. But I have a question. On Page 186.1, we keep referring to preserve areas when really that this is written for I think required preserve areas. And the reason I'm trying to differentiate that is because preserves are a use by right in a lot of districts. And being as such is, do we -- we don't want to encumber all preserve areas, only those that are required by -- MR. LENBERGER: County required, yeah. CHAIRMAN STRAIN: So maybe D, you can -- wherever it's needed you can insert the word required into the -- beginning before the word preserve. Is that acceptable to you all? MR. LENBERGER: I would check with the county attorney's office, but I would say county required. MS. ASHTON: County required. CHAIRMAN STRAIN: Okay. Anybody on the commission have a problem with that? (N 0 response.) CHAIRMAN STRAIN: Okay. So with the exception on Page 186 with inserting county required preserve areas as the intent, we're complete with that. Is there a recommendation to approve Section 3.05.07, preservation standards as noted, and finding it consistent with the Page 155 September 26, 2008 GMP? COMMISSIONER VIGLIOTTI: So moved. COMMISSIONER KOLFLAT: Mark? CHAIRMAN STRAIN: Oh, Mr. Kolflat? COMMISSIONER KOLFLAT: Yes. The information I have goes on with 186.3, .4, .5. CHAIRMAN STRAIN: Right. COMMISSIONER KOLFLA T: .6 and 180.1.6 which were both from the attorney's department. CHAIRMAN STRAIN: That's back-up material to the language that we just reviewed. Do you have any questions on the material? COMMISSIONER KOLFLA T: No, I don't. But that is part of it, correct? CHAIRMAN STRAIN: Yes, sir, that's the back-up material to get us -- to give us the reasoning as to why they put it together like that. COMMISSIONER KOLFLAT: Thank you. CHAIRMAN STRAIN: Okay, now, there was a motion made by Mr. Vigliotti, seconded by? COMMISSIONER CARON: Second. CHAIRMAN STRAIN: Ms. Caron. Oh, Mr. Anderson has some input. Would the second and the motion maker withdraw their motion? COMMISSIONER CARON: I did. CHAIRMAN STRAIN: Okay. Bob? COMMISSIONER VIGLIOTTI: Yes, I will. CHAIRMAN STRAIN: Okay, Mr. Anderson. MR. ANDERSON: It's to avoid problems in future interpretations. There's this reference to the statutory conservation easement in Florida Statutes. CHAIRMAN STRAIN: What page is the reference on? MR. ANDERSON: 186.1. Page 156 September 26, 2008 CHAIRMAN STRAIN: Yeah. Okay, Section 7.04.06? MR. ANDERSON: Yes, sir. And there are some other references to this particular section in Florida Statutes as well. This conservation easement statute gives a laundry list of different kinds of prohibitions that can be included in a conservation easement. The statute uses a phrase: Which prohibits or limits any other all of the following. So when you look at this, it's not clear -- it could be interpreted by someone that all the limitations in this particular statute have to be included in a conservation easement. And I simply want to avoid that. Because if you look at the statutory language literally, it prohibits removal or destruction of trees, shrubs or other vegetation. There's no exclusion for exotics in the statute. So I'd simply like to strike the reference to that particular statute and just use the generic term a conservation easement. Because the Growth Management Plan language that you have up here recognizes that the type of conservation easement restrictions will vary. CHAIRMAN STRAIN: That last line then, and I thank you for pointing this out, and it says: In final plats in accordance with Section 10.02.01 with specific language as may be found in the conservation easement. Does that get us there? MR. ANDERSON: Yes, you see both of those sentences that have that reference. CHAIRMAN STRAIN: Yes. MR. ANDERSON: Okay, yes. CHAIRMAN STRAIN: Susan? MS. MASON: Just to kind of mention too, I know there is some sample language in the LDC as one of the attachments at the very end. That is language that is consistent with this section of the Florida Statutes. At least that's my understanding. Page 157 September 26, 2008 And that was always the template that people would use in the plats. And they -- we did always allow for and certainly require exotic removal. So I'm not sure -- I've not read the whole Florida Statute, and I'm looking at Heidi for help. MS. ASHTON: I haven't read the statute in a while. It does have a laundry list of items that are prohibited, some of which we have duplicated in the appendix to the Land Development Code where you get your sample language for your subdivision plats. Also, I believe the standard conservation easement that they're currently using, which staff has created, contains a laundry list, whether or not it includes all of them. MS. MASON: It does specifically say in there that it allows for exotic removal, that that -- removal of vegetation, except for required exotic. And has language about permitted state, which staff has applied as permitted by the agency if they have something in there that has been previously permitted. MS. ASHTON: I mean, you could put -- to protect -- some of which are included in Section 7.04.06, leave a little bit of flexibility, but yet it would put the developer applicant on notice of some of the uses that they would be expected to include. CHAIRMAN STRAIN: Why don't we just list the uses in the paragraph? Why wouldn't we just say it so we know what it is everybody's talking about? MS. ASHTON: That would really be a question for staff as to whether or not relating to the issue raised by Bruce, which is kind of that each of them are a little bit different, is what I heard him say. MR. ANDERSON: That's correct. CHAIRMAN STRAIN: But wouldn't we want to know -- okay, each of the items in the statute are a little bit different. MR. ANDERSON: Yes, and all the physical characteristics of an area may be different -- Page 158 September 26, 2008 CHAIRMAN STRAIN: So they only apply if the right physical characteristic is present. MR. ANDERSON: Correct. CHAIRMAN STRAIN: And who makes the decision whether or not they apply or is it already made by the fact that the characteristic is there? MR. ANDERSON: It's a combination of both. It could be the kind of thing that staff and an applicant could disagree on. CHAIRMAN STRAIN: If they disagree on it, who do you think's going to win? What's your recourse? How do you undo it -- we're trying to avoid disagreements. I'm tired of hearing about disagreements. I think it's best that we stop that and try to be as definitive as possible. And if this needs to be expanded to show what the possibilities are, if that's the best solution, I certainly appreciate you pointing it out, because it's traps like this that get us into trouble down the road. I now would like to see before this one is considered passing is you get the -- someone gets the language to us bye-mail so we have something to take a look at. Steve? MR. LENBERGER: Okay. Actually, I happen to know the language is attached to Brian McKenzie's letter that he had given you, the oil and gas. He did attach the 7.04.06 language to that letter. The language in Appendix C of the LDC is on the visualizer. And this is the language that we use for plats. And it's also the language from 7.04.06. But you'll notice it says: Preserves may not be in no way altered from their natural or permitted state. That's the permitted state. So that would -- imply that there are certain uses allowed in the preserve. CHAIRMAN STRAIN: If this section of the code talks about preserve mechanisms, all preserve areas shall be designated as preserves on all site plans. Then it goes into dedication. Page 159 September 26, 2008 Why do we have these limitations if the dedication? Wouldn't they be better off in another section of the code that discusses what preserves can and can't be used for? If that's what the statutes are -- this statute section refers to is limitations on the use of the area, which it seems to show here, such as trash removal, destruction of trees, et cetera. Aren't those prohibitions that we could have somewhere else and this section should be limited to the recordation mechanism or how to create a preserve tract? I'm asking. You're the only guys I have around here to ask. MR. LENBERGER: I'll have to ask the county attorney's office help on this. MS. ASHTON: Could you repeat the question? CHAIRMAN STRAIN: If this section of the code is to define what the preserve mechanisms, meaning how we dedicate a tract, a preserve tract, then why are we getting into the prohibitions within that tract in the dedication language? Basically this should be black and white, here's how you do it. The prohibitions and what it can be used for have got to be in another section of code that defines what we can and can't do with preserve tracts. Wouldn't that -- isn't that the way to approach this? I'm wondering why we're mixing the two in this dedication language. This is purely dedication language. MS. ASHTON: Yeah, that's the dedication language for subdivision plats. You might have asked DEP, you know -- it might not be platted land. CHAIRMAN STRAIN: Okay, so this is all on site plans then. The easement shall be dedicated -- shall dedicate the responsibility of maintenance to a property owners association or similar entity. I understand that. And it shall contain allowable uses and limitations to protect the preserve in accordance. Page 160 September 26, 2008 See, there's where I guess I'm wondering why do we need that in here if you can't dedicate it and it can't be a preserve unless you've already crossed that threshold and addressed it. So are we mixing something into this dedication language which is purely a mechanical function of how you dedicate with now the limitations within that dedicated area? MS. ASHTON: You could take out the reference to the section or you could, say, put the language in as I mentioned earlier: Some of which are listed in section 7.04.06. But it doesn't address with certainty what the limitations and allowable uses would be. But hopefully you'd have another document like a PUD or other document that would specify that in it as well. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: I think you can probably end it this way: And it shall contain allowable uses and limitations to protect the preserve, period. MS. ASHTON: Uh-huh. COMMISSIONER CARON: All preserve areas shall be shown on the preliminary and final plats in accordance with Section 10.02.01 and -- with specific language pursuant to the -- what Heidi was just saying, some of the -- MS. ASHTON: I think the sum of which language goes better up at the first part and then you can -- CHAIRMAN STRAIN: You know, there's no way we're going to -- MS. ASHTON: -- just say in accordance with the section. CHAIRMAN STRAIN: This isn't going to pass today. You're going to come obviously back. Would you and Heidi please give Bruce a call and try to figure out some language that seems to be more applicable for this section of the code, and get it done and come back to us with it. Because there's no sense of us trying to come up with the Page 161 September 26, 2008 language here today. We're not going to be able to do it. So does that work, Heidi? MS. ASHTON: Yes. CHAIRMAN STRAIN: Okay. Mr. Schiffer? COMMISSIONER SCHIFFER: Quick question. Heidi, once this is done, who is the owner of the land? The applicant is still -- or the person who is giving the conservation easement is the owner of the land still, correct? MS. ASHTON: Correct. COMMISSIONER SCHIFFER: And who is the owner of the easement? MS. ASHTON: The easement would be in the name of Collier County. COMMISSIONER SCHIFFER: So they're the owner of the conservation easement. MS. ASHTON: Uh-huh. But without responsibility for maintenance. COMMISSIONER SCHIFFER: But according to this 7.04.06, they could sell that for power distribution or a pipe transmission. If you look at parentheses 11, there is the ability to -- anyway, I was just curious as to who was the owner of the -- MS. ASHTON: Where are you referring to paren II? Are you looking at the statute? COMMISSIONER SCHIFFER: Yeah, 7.04.06. MS. ASHTON: Well, I -- normally the conservation easement document via either plat or separate instrument specifies the allowable uses. It doesn't specifically do a cross-reference to 7.04.06. They actually contain in the document what is -- COMMISSIONER SCHIFFER: So they don't have that right? MS. ASHTON: So I don't believe that's in the form that they're currently using. I don't know. Do you guys recall? COMMISSIONER SCHIFFER: I was just curious as to who Page 162 September 26, 2008 those two people were. We can move on. CHAIRMAN STRAIN: Okay. You're going to rewrite this again, bring it back again. What I'd like you to do is please notify the people that have been waiting -- were waiting here earlier today involved in other issues, like Phil Gramatges, Michael DeRuntz. I know Carolina Valera may be, Bob Mulhere, Lisa Khoehler, Stan Chrzanowski. Could you tell them that there's no way next Thursday morning we're going to get to any of their issues. Because at 9:30 or approximately next Thursday morning after our regular hearing, we'll go right back into where we left off here today. And I'd like to keep at this until it's done. So that means we would start with 3.04.03, listed plants, on Page 141 on Thursday morning of next week at approximately 9:30. And that's when we would continue this meeting to. Is there a motion to that effect? COMMISSIONER CARON: So moved. CHAIRMAN STRAIN: Ms. Caron. Is there a second? COMMISSIONER VIGLIOTTI: (Indicating.) CHAIRMAN STRAIN: Mr. Vigliotti. All those in favor to continue to next Thursday morning at 9:30 in this room, please signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries, 5-0. Catherine, you have anything you want to add in closing? MS. F ABACHER: I just want to say that this is the fourth -- is it Page 163 September 26, 2008 the fourth meeting now we've had for the Cycle -- CHAIRMAN STRAIN: I've lost track, Catherine. MS. FABACHER: -- 2008-1. And the next meeting we will cover everything that we didn't get to today on the agenda, correct? CHAIRMAN STRAIN: No, we will cover as far as we can get in the next meeting that we didn't get to day. But that doesn't mean we'll cover it all. MS. FABACHER: We'll aspire to. Thank you. CHAIRMAN STRAIN: Yes, ma'am. Thank you. We're out of here for now. Thank you all. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 3 :00 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 164