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CCPC Minutes 10/02/2008 LDC October 2, 2008 TRANSCRIPT OF THE LAND DEVELOPMENT CODE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida October 2, 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 9:20 a.m. in SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Mark Strain Karen Homiak Donna Reed-Caron Tor Kolflat Paul Midney Bob Murray Brad Schiffer Robert Vigliotti David 1. Wolfley (absent) ALSO PRESENT: Jeffrey Klatzkow, County Attorney Joseph Schmitt, CDES Administrator Ray Bellows, Zoning & Land Development Review Thomas Eastman, Director of Real Property for CCSD Page 1 October 2, 2008 CHAIRMAN STRAIN: Now, good morning, everyone. We'll start all over again, but we will move into our second phase. COMMISSIONER KOLFLAT: Are we going to have the Pledge of Allegiance again? CHAIRMAN STRAIN: No, I think officially once is enough. We got that. We'll open up the next meeting. It will be a continuation of our September 26th LDC hearing, the 2008 Cycle 1. And we'll start with the environmental, and I'm sure that Ms. Fabacher may have some opening comments. You had requested that you be allowed to, so please go ahead. MS. FABACHER: I'm only saying that I have extra checklists here, if anybody needs one. You do? Okay. I've also printed extra copies of the three environmental that I think Mr. Schiffer and Mr. Kolflat had trouble locating. If they want a copy now, I have -- CHAIRMAN STRAIN: Well, I think the first thing we ought to do is make sure everybody is reading off the same page, same set of pages. And the first page we'd be starting with is Page 141. And this item is concerning listed plant species. And the most recent version date that we would be using today, I hope, is July 23rd, 2008. Steve, when you get a chance, verify that version date so we know we're on the right one. MR. KLATZKOW: I've got July 30th. CHAIRMAN STRAIN: You have July 30th? I love it when these things happen. Let me see if I've got a newer version. Well, mine -- the latest one I have that I'm -- I usually keep mine up pretty well -- is July 30th -- July 23rd. So -- COMMISSIONER CARON: July 23rd. Page 2 October 2, 2008 CHAIRMAN STRAIN: You have July 23rd? County Attorney has July 30th. Catherine, what is the date that we're supposed to be using? MS. FABACHER: I'm sorry, Commissioner. Which one -- we're on 3.04.0 -- CHAIRMAN STRAIN: We're on Page 141, 3.04.01, listed plants. MS. FABACHER: We should be using 7/23/08. Sometimes they -- 7/23/08. CHAIRMAN STRAIN: Do you know why the county attorney would have a different date? COMMISSIONER MURRAY: I have 07/30. CHAIRMAN STRAIN: I'm sorry, sir? COMMISSIONER MURRAY: I have 7/30/08. MS. F ABACHER: There were two dates. Sometimes if it came in a packet, then it had the publication date of the packet. If it came individually, then it had the new date. CHAIRMAN STRAIN: Well, on the top of Page 142, it says other notes version date. I'm going by those version dates, as we were told last time that's the one we should be using. And the July 23rd version date is the one that I believe I'm reading off of. MS. FABACHER: And that's the one that is correct. CHAIRMAN STRAIN: Pardon me? MS. F ABACHER: That would be the correct one. If anyone needs another copy, I have it. CHAIRMAN STRAIN: Well, I think, Mr. Klatzkow, it's kind of important that the county attorney have the right version. He somehow has the wrong version. So maybe you could give him one to follow along, and if there's any comparable notes in there, hopefully we can pick them up as we move forward. COMMISSIONER MURRAY: Can I have a copy too, please? Page 3 October 2, 2008 CHAIRMAN STRAIN: This certainly will be a rewrite anyway. So we'll have another opportunity to review it when it comes back. And for the benefit of Ms. Homiak, as we go through these -- and we will start out at our starting page, and we actually ask if there's any questions, page by page by page, unless there's not a lot of changes to the page. But generally we go page by page. So as we discuss this, we will turn to a page, we'll ask for any questions, and that's when everybody will indicate whether they have a question or not and we'll move on to the next page. Steve, did you want to make any opening comments? MR. LENBERGER: Thank you. For the record, Steven Lenberger, Engineering and Environmental Services Department. This amendment for listed plants comes from the change in the GMP. And I put it on the visualizer. And on the first one listed for listed plants, and what it says is the county shall evaluate the need for the protection of listed plants. And that's what we did. We've had quite a few discussions on this topic. There are quite a few listed plants statewide. There are quite a few in Collier County. It's an unusual area and we do have a lot of them. Many of those are, though, only located in Big Cypress Preserve, Facahatchee Strand, way out in the far reaches of the county. So when staff looked at this, we tried to look at plants which are endangered, rare, which occur in the urban area, fringe area, which have a likelihood of occurring in that area as well. And that's the list that we produced, basically the ones listed in the amendment. We did -- we also had discussions with a few consultants regarding the amendment itself. There is one little clarification we're going to add to the amendment where it starts off for listed plants. And I can show that when you get to that page, if you'd like. Also, when we produced the amendment, we went to the EAC, we went to a lot of different committees during this process, and we Page 4 October 2, 2008 were requested to update the language for other listed species, particularly the gopher tortoise and the bald eagle. So you'll see amendments to that portion as well. And that came at the request of the EAC. There's also some corrections, scrivener's errors on the lettering and numbering. And that's basically my presentation. When you get to the page dealing with plants, I'll pop up with some corrected language we'd like to add. CHAIRMAN STRAIN: Okay. And with that, we will start on Page 141, which is the introductory page. Does anybody have any questions on Page 141? (No response.) CHAIRMAN STRAIN: Steve, I've got one, and it involves the language in the GMP. And it says, the county shall evaluate the need for the protection of listed plants. I didn't see an evaluation in what you sent me. Where is the evaluation? MR. LENBERGER: The evaluation was looking at all the listed plants. There are quite a few. Many of them are only located in the eastern reaches of the county. There are quite a few others which can only be identified by experts. They're very -- CHAIRMAN STRAIN: Where is the written analysis? MR. LENBERGER: No, we haven't included that here. CHAIRMAN STRAIN: Here's where my concern is. Somehow this language in the GMP has morphed into a requirement for Land Development Code amendments to protect listed plants. When this came before us, my understanding was we'd evaluate it and if there seems to be a need. And I'm concerned that there's been no need proven because you've already expressed one of my major issues is that most of the plants are already on protected lands in Big Cypress or elsewhere. And we have wetlands that are already Page 5 October 2, 2008 protected. We have native vegetation areas within developments that are already protected. Before I myself could even think of supporting this, this part of this program, is to know how -- what percentage of the listed species are within areas that are even threatened, if they're in existing native preservation preserves, if they're in jurisdictional areas, if they're in Big Cypress, if they're in areas that already have ample regulatory protection. What in the world does Collier County need to do with another regulation on top of all the other ones, especially one that involves hundreds of plant species? I don't know how anybody could figure out how to do a management plan or know what the additional cost to even analyze this would be -- which, by the way, was my next concern. Because obviously the study to now review all those plant species and determine if you have them, and someone, let's say, competent enough to know all those plants species from one another, and then drawing up a management plan from those on top of all the other management plans they now have to do, I haven't seen the evaluation that says all this additional regulatory level is needed. So that's why I was asking for it. If you don't have anything in writing, it was just someone's thought, then I'm more concerned. So that's a statement just for the record. MR. LENBERGER: We will include that in the amendment. CHAIRMAN STRAIN: With that, if there's no other questions on Page 141, we can turn to Page 142. Are there any questions on Page 142? (No response.) COMMISSIONER SCHIFFER: Mark, I just -- CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: And it's not really a question, but what do you mean by commercially exploited? Are people going Page 6 October 2, 2008 out and taking vegetation out of preserves and stuff or -- MR. LENBERGER: The state lists plants according to three categories basically listed there: Endangered, threatened, and commercially exploited. And commercially exploited would be that they're endangered -- one of the reasons they could be endangered is that of overharvesting or removal due to development, things of that nature. COMMISSIONER SCHIFFER: But that doesn't mean they sell too many of them. I mean, it sounds like it's somebody going in and taking something not -- MR. LENBERGER: Well, you can do that. A property owner can harvest those plants listed as commercially exploited from their own property. CHAIRMAN STRAIN: Any other questions on Page 142? (N 0 response.) CHAIRMAN STRAIN: Steve, under A it talks about protected species, and then it says in the last few words, listed or protected by. Then you reiterate the regulatory agencies already protecting these plants. Again, I mean, each time I see this I just wonder, why we are adding more to our code when it's already covered by numerous federal and state regulatory agencies? So I don't know why any of that is needed to be added to this LDC section. That's my comment. And I know you probably don't have a comment back, but that's okay. MR. LENBERGER: Okay. Just an aside, the first statement there is dealing with listed plants and animals, not just plants. CHAIRMAN STRAIN: The animals, I know we have special management plans for some particular ones in Collier County. And that's fine and I agree we should have. I don't have any problem with that. Page 7 October 2, 2008 But then adding this voluminous amount of listed plants and then putting that burden on a property owner who already has numbers of exactions right off the get-go, I don't see the regulatory need for it. And that's why that language on Page 142, any of it pertaining to plants, is concerning to me, so -- Ms. Caron? COMMISSIONER CARON: Should we, since we're -- we need to be talking about the plants. Should we skip over to Page 156 where they actually talk about what plants you want protected? And maybe you could explain to us then why -- MR. LENBERGER: Sure, we can do that -- COMMISSIONER CARON: That's where it gets down to it. I-- CHAIRMAN STRAIN: Well, my recommendation for Section 3.04.03 is strike the whole section. But anyway, we certainly -- if you want to move there, then go back to 143, we can do that, if it helps understand it better. Steve? Okay, any questions on Page 156? Mr. Midney? COMMISSIONER MIDNEY: Yeah, this is just kind of a follow-up. I see four rare plants and five rare plants for relocation, and then less rare plants, five more. So we have a total of 14 plants, plant species? MR. LENBERGER: Yes, that's correct. COMMISSIONER MIDNEY: It seems as though that's just not a very exhaustive number of the rare -- rare plants in the county. I'm just wondering how you came up with that number. MR. LENBERGER: We've had a lot of discussion with this through different committees, subcommittees, and the plants selected were those that were rare which had the likelihood of occurring in the fringe and urban areas. I can go by the reasoning to find the different plants. Basically the rare plants in the wild, you would rarely see the hand fern, the Simpson's Stopper, which is a hammock species, Page 8 October 2, 2008 satinleaf and wild cotton. But we're not requiring them to be relocated, because the last three on that first section there, satinleaf, Simpson's Stopper and wild cotton are all available commercially. They're all wildly grown. And the hand fern is a very particular species; it only grows on cabbage palm and cabbage palm hammocks which have enough moisture. And if you relocate the cabbage palm tree, it most likely would die. So we didn't feel that was appropriate to relocate that specIes. The second group of plants, rare plants for relocation are basically listed to epiphytic plants with two exceptions: That, Curtis' milkweed, which is a scrub species, and the West Coast prickly-apple, which is a very rare plant found in coastal barrier islands. All those plants should be able to relocate fairly easy. Granted, some of the epiphytic species could occur fairly high up on trees. My general opinion, though, looking at some of those other species as the clamshell orchid and the ghost orchid would probably occur further down in the canopy due to the increased moisture you would find in the environment they occur in, which would basically be a hardwood swamp or cypress stand. The last group of plants, less rare plants, are plants you would find mostly in wetland areas, as the Chairman brought up, except for possibly the twisted air plant. Twisted air plant can occur in a variety of environments, even very xeric environments. But these are widespread throughout the county, but they're localized. And we've had discussions with this at the EAC action, that they wanted to see relocation of these plants. So we tried to think about, well, relocation, what's practical. We put kind of a height restriction there saying, okay, up to 10 feet, relocate them. It's not difficult for a consultant to take a ladder in there and to relocate within 10 feet off the ground any of those, particularly if you have an appropriate habitat to Page 9 October 2, 2008 relocate them to. That was trying to address the concerns of some of the people who put input into this amendment. COMMISSIONER MIDNEY: So you're mainly trying to relocate them within the property? Or where would you relocate them to if you didn't have an appropriate place within your property? MR. LENBERGER: You wouldn't be required to relocate them. Only if you had a suitable place to relocate them, a habitat where they would survive. For example, if you --let's just say you had a cypress head and it was in the middle of your shopping center or wherever it may be. You had to eliminate that, but you preserved some nice quality pine flatwoods somewhere else on-site. Relocating these particular plants would probably not be suitable; therefore, we would not require their relocation. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: In looking at this section, you discuss obviously if they occur within a preserve you have to maintain them. You state that the rare plants for relocation and the lesser air plants, if they're in a development area they have to be attempted to be moved in the preserve and you give conditions for that. But what if it's a rare plant in a developed area? MR. LENBERGER: The rare plants, well, the first one being hand fern, would probably not likely survive relocation, so we didn't require it to be removed. And the next two, Simpson's Stopper and satinleaf are hammock species. If they were preserved in their habitat, that would be fine. If you're going to relocate them, they'll probably die. They're available commercially, so we weren't requiring their relocation. Wild cotton is very sporadic on the coastal barrier islands. You would find it near coastal hammocks, scrub areas. It's available Page 10 October 2, 2008 commercially. But if you weren't going to save the area, it probably wouldn't survive relocation. We did have some concerns from some of the developers, thinking that you would have to consider protection of these plants when you selected your preservation areas. That wasn'tthe intent. That's not the intent of the compo plan, as was brought up to me by management. So we do have some language that was proposed -- it was proposed by two consultants. And that language is to clarify that. CHAIRMAN STRAIN: But Steve, just out of curiosity, how is this changing anything? If they already are -- if they're going to create preserves on their property and if the plants fall within the preserves, they're to remain there. Okay, well that's what a preserve is all about. You're not supposed to disturb preserves. And if not, they don't have to worry about it unless they can and it might work. I don't understand why we're going to this great ambiguous kind of language for possibilities to protect things that are already seemingly very protected. Because I've not seen any evaluation or evidence that shows how many of these plants on a percentage basis aren't caught up into areas already protected in Collier County. MR. LENBERGER: I will include that analysis, but I will also answer your question. Let's just take for example the rare plants for relocation. The likelihood of these plants occurring on your property are very, very slim. They are truly very rare plants. And if you have them, you most likely would have one individual, maybe a couple. But it would be a very rare circumstance, and we would ask that you relocate them. They also have -- we have seen that these species, aside from the last one, which is very rare, I haven't seen that at all, it's on barrier islands; it could be out on one of the barrier island that I haven't seen. Page 11 October 2, 2008 But other than that, they have occurred sporadically, very rarely in other areas. The less rare plants do occur with some frequency, I will admit that. It was trying to address the concerns of the attendees in the stakeholders meetings. Some people wanted to protect all the plants, others didn't feel the need for the list to be that extensive. No one at the sub-committee level said well, we don't really need to do this at all. But it's an evaluation. We tried to reach middle ground, based on our knowledge of plants in the county. COMMISSIONER SCHIFFER: Mark, can I -- CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: Let me stay in that -- the point I was making. So the concern I had is you really don't clearly define what to do with the rare plants. I mean, the assumption, since it's silent, is that you -- in a developed area you could essentially, I don't know what the word is, but squish the rare plants -- MR. LENBERGER: Right. We could clarify that in the amendment easily. COMMISSIONER SCHIFFER: Okay. So what I'd like to see, since this is pretty prescriptive, is that you do note that so that -- somebody could also take the impression that you're not allowed to do that so-- , MR. LENBERGER: Understood. COMMISSIONER SCHIFFER: Okay, thank you. CHAIRMAN STRAIN: The plants that you have in the rare particular -- and probably the other ones too, are those already protected by other government agencies in any way? MR. LENBERGER: The plants listed are protected by the state. The state doesn't restrict property owners from removing the plants. It's only when the plants become federally listed that it raises to a different Page 12 October 2, 2008 level. And none of these plants are listed at the federal level, they're all listed at the state level. CHAIRMAN STRAIN: What does the state's protection mean then? MR. LENBERGER: The state lists them. And, for example, the commercially exploited, it restricts people from just going and taking plants. But it doesn't restrict property owners from doing anything they want to these plants. It doesn't restrict them at all. CHAIRMAN STRAIN: Okay. If that's enough questions on 156 from.everybody, we'll move back to 143. Any questions on Page-- Ms. Caron? COMMISSIONER CARON: Well, I think I'd like to actually go back now to 142, because it would seem to me that you could totally simplify that whole first general section by saying that the purpose of this section is to protect species in the county by including measures for protection, management and monitoring and! or relocation of endangered, threatened species of special concern listed or protected by Collier County, Florida Fish & Wildlife, U.S. Fish & Wildlife, Convention of International Trade, and the Florida Department of Agriculture. Boom, boom, boom for bullet points, you're done. You know what has to be -- you know what is already required to be protected, you know what we're protecting, and then you're going to have a list at the end of ones that the county wants protected, right? As opposed to all this double language that Mr. Strain is concerned about, for one thing, that he's concerned about. CHAIRMAN STRAIN: Well, the problem is on A, it opens it up to a broader range of literally hundreds of plants. On Page 156 we narrow it back down to what we're -- COMMISSIONER CARON: 14 -- CHAIRMAN STRAIN: -- really concerned about. Page 13 October 2,2008 COMMISSIONER CARON: Right. CHAIRMAN STRAIN: But if we keep the language in A that references all those plants by all those agencies, we've not reduced it down to the ones we seem to be concerned about. And I think that's where my concern was, so -- MR. LENBERGER: I'd also like to clarify, state regulations prohibit local governments from just adopting the state list. You can select plants off it, but you can't just use that as a list to go by. You have to select your own plants. You can use that as a reference, which we've done, but just to clarify. CHAIRMAN STRAIN: If there was a stakeholder consensus, and I'm sure we'll find out more, and there is an evaluation done that shows the need, as the GMP requires, then selecting the plants that this county feels are worthwhile or particularly of concern is more reasonable than listing all the agencies and their species that they list. That's where I think my concern was. I think Ms. Caron is trying to get there, too. But I would want to -- that's where the clarity seems to fall apart is between -- when you throw in these agency names and what they're protecting, I'm not sure it's just these plants then that this ordinance would apply to. So anyway, I think that's the -- you got a flavor from several of us on that issue, so I'm sure you'll have fun with it when you go to rewrite. Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: Steve, the list that we have in the back is all those plant materials covered in the other agencies? MR. LENBERGER: The plant list in the amendment is -- say that again? COMMISSIONER SCHIFFER: Are all those subsets of what the other agencies protect? MR. LENBERGER: They're listed in the state list. Page 14 October 2,2008 COMMISSIONER SCHIFFER: Okay. And are we allowing them to do any -- well, we couldn't, anything different than what the state agency's doing, so -- MR. LENBERGER: The state doesn't restrict the homeowner -- the property owner, excuse me, from doing what they want with the plant, because they're not federally listed. COMMISSIONER SCHIFFER: But we do now by making certain plants required to be moved and tried to be relocated then, that's what we're adding. Okay. CHAIRMAN STRAIN: What if a homeowner in Golden Gate Estates -- and we have a lot of unique property and untouched property out there -- wanted to build a home on their five acres or their two-and-a-half or their whatever, and they had a series of these plants in different spots on their property to a point that they could not build a home without taking out the plants. Would they still be able to build? COMMISSIONER SCHIFFER: That was my question before. Remember squished, I think that was -- CHAIRMAN STRAIN: That's the ref -- okay, that's where you were going with that? Because I just want to understand it. Because if you have a home in the Estates, you want to put your house towards the center of your property or back from the road, but there's a plant there, one of these plants, could you still do that, or would you -- or are single-family sites exempt from this, or is it -- MR. LENBERGER: We could include an exemption. I'd have to speak to management how that's addressed throughout this whole amendment, because there is language in here talking about different species, and it's less restrictive for homeowners. I know in some respects, for example, gopher tortoises. So I'd have to get with management on that to see how we can address that concern. Susan is here, maybe she has some comments regarding that. CHAIRMAN STRAIN: I just want to make sure that you think Page 15 October 2, 2008 of that, because next time you come back, it would be an issue to make sure we're covered. I know my son took a bunch of cotton seeds, threw them around the house and around the yard, we have wild cotton now. So I'd be concerned since you said it's so rare, but now I've got a whole yard full of it. MR. LENBERGER: Commercially available. COMMISSIONER MURRAY: Corner on the market. CHAIRMAN STRAIN: Not the same, but it does grow really well. If you haven't seen a cotton plant, it's interesting to see how those grow. Okay, we're back on Page 143. Questions on Page 143? (No response.) CHAIRMAN STRAIN: Under 3.A, you've added a sentence, then you want it -- should be included on approved site plans. You know, that could get difficult, because site plans go through a process at the county that have to be modified if you change them. If you put these plans, when the monitoring plans require the names of people responsible, the management entities and all the other stuff, responsible people, those things change quite frequently. How do we put all that on a site plan and then be able to change it, if need be? Shouldn't it be a standalone document? MR. LENBERGER: Preserve management plans are included on site development plans and construction plans for final plats, and we can include that here. CHAIRMAN STRAIN: I'm sorry? MR. LENBERGER: Because it pertains to final site plans for construction, site development plan and construction plans for final plats, we can clarify that. CHAIRMAN STRAIN: Okay. In the preserve management plans, do you require the entity who's going to be responsible to be Page 16 October 2,2008 listed? MR. LENBERGER: Yes. CHAIRMAN STRAIN: Do you require an authority who would actually go out and review the site and make sure that -- in all the HOA's that take over, like Lely or all the rest of the places, those HOA's now have to hire somebody to go out and monitor their preserves. Is that person a requirement to be named in a preserve management plan? MR. LENBERGER: Yes, they do. And we have that as a separate amendment, preserve management plan, spelling the criteria out. CHAIRMAN STRAIN: And if you do that and it now has to be put on this site plan, is that what you're trying to say is all that information has to be actually written into the site plan or on a sheet, on a set of site plans? MR. LENBERGER: On a preserve management plan as part of a site development plan or construction plans. CHAIRMAN STRAIN: But does it have to be written on the 24 by 36 sheets? MR. LENBERGER: Yes. CHAIRMAN STRAIN: So any changes to the entities and people, how do you change them if they're written on a site plan that's submitted as a blueprint? MR. LENBERGER: That's why we propose language be -- language as in that -- this is a different amendment now. This is preserve management plans. The current language says that the individual, whoever owns the property or the preserve manager, which is an environmental consultant, if that changes, the plan has to be changed. Originally that talked about changing the site development plan Page 17 October 2, 2008 itself. But later we got an interpretation from management that they can let us know in writing, and that would be included in the file and that would satisfy that requirement. But since then we have changed the language in the proposed amendment for preserve management plans. CHAIRMAN STRAIN: Okay, when we get to that section, would you mind clearly pointing it out? What I'd hate to see is that we submit blueprints under a site development review and we have to put all this language there, and then if they make a small change in the entity or a different consultant, they now have a resubmittal for an SDP and that would be a monumental task for everybody to handle. MR. LENBERGER: And that's why we proposed the change. COMMISSIONER CARON: All right. So you are definitely saying that the way the language is proposed now you don't have to change your site plan, you just add like an addenda? MR. LENBERGER: Currently the way it's written the plan has to be changed. But interpretation from management says you can just give us a letter in writing setting the name change and that will be included in the file. So you don't have to change the plan. MR. KLATZKOW: You can't go by interpretation. CHAIRMAN STRAIN: I was just going to say, we need to see that in the ordinance. If you're going to include it, we need to see it. MR. LENBERGER: This is current language. The proposed amendment does not have that. COMMISSIONER CARON: Okay. CHAIRMAN STRAIN: We need to understand that clearer when we get to the other one as well, Steve, so somehow that's got to coordinate back. I notice up above you changed -- it says indicates listed or protected. So you've added or increased the application by including protected wherever listed used to be. How impactful is that? What does Page 18 October 2, 2008 that physically mean? MR. LENBERGER: That was originally added by Barbara I think to address the bald eagle concern. Because the bald eagle is delisted. It's a protected species, but it's not a listed. CHAIRMAN STRAIN: Is it the only protected species? MR. LENBERGER: No, there are lots of protected species. CHAIRMAN STRAIN: So now this triggers all kinds of unforeseen events, and we clearly said on the bald eagle element it should be only the bald eagle and not to screw around like this. So I would suggest we take out all that language that references -- that you added that inadvertently brings in a whole pile of other things that was never intended. MR. LENBERGER: We understand your concern, but we received this amendment before we reviewed the bald eagle amendment, so -- CHAIRMAN STRAIN: Under B.ii, last sentence says, the Bald and Golden Eagle Protection Act in the F AC, and it references a code. That's law. Why are we again -- so is the one above it for that matter. What is the purpose of restating it here? MR. LENBERGER: A references the agencies and the Acts. B on Page 143 are the references. CHAIRMAN STRAIN: Okay. But if they weren't listed here, would the property owners still have to abide by them? MR. LENBERGER: Yes, they would. CHAIRMAN STRAIN: Okay. MR. LENBERGER: If they're regulated. CHAIRMAN STRAIN: The redundancy is building our code into a -- instead of2,000 pages, it might be 4,000. I'm just trying to figure out how to reduce the redundancy, Steve. MR. LENBERGER: These were added to address the concerns of the EAC and to put the literature there so people can easily Page 19 October 2, 2008 reference it. Are you suggesting strike the references section? CHAIRMAN STRAIN: Well, I'm just -- again, I'm trying to make a succinct code for Collier County to follow. And it's so hard to find things because we have so much irrelevant data thrown into the code like stuff that's already --like stuff that's already covered by law anyway. I'm just wondering if the redundancy is necessary. Ms. Caron? COMMISSIONER CARON: Well, I think the references may be important, Mr. Strain, just because not everybody who looks at the code is going to definitely know, especially if you're an individual homeowner, that you might need to check with U.S. Fish & Wildlife on something here. At least it's referenced in there, it's not a -- it's just there for reference so that you don't miss something. CHAIRMAN STRAIN: I mean, I just -- it's still-- it's just redundant, and I'm concerned about the redundancy, so -- if we have to assume that everybody has to have it restated for them in different parts of our code for everything that may apply, we might get into a lot more references than we currently have, and I don't know if that's the right precedent to set. So I'm concerned about it. I only ask, can staff take a close look at it. Mr. Murray? COMMISSIONER MURRAY: Somebody has a plot of land out in the Estates or whatever, wherever these plants possibly can grow, and they come in and they'd like to build a home. That triggers a series of events. Is one of them automatically an inspection by anybody in your department? MR. LENBERGER: I believe the intent is not to regulate the single- family. So we're going to look at including an exemption. COMMISSIONER MURRAY: Who are you trying to regulate? Page 20 October 2, 2008 MR. LENBERGER: The code here is -- for the plants was aimed at development of property, whether it be a subdivision, commercial property, to evaluate sites. COMMISSIONER MURRAY: Yet you indicated that the barrier islands, and they were very rare and they were out in the boondocks and you can't build there. So I'm trying to figure out -- I mean, I've been listening to what the chairman has been indicating and I couldn't agree more with him that this is crazy, that it is the building of the bureaucracy, quite frankly. I'm a little -- I'm actually frustrated. MR. LENBERGER: And if this board wanted to say the evaluation doesn't warrant it, that's -- I will include an evaluation when we bring this back. In relation to your comments as far as plants occurring out in the far reaches of the county or on barrier islands, those areas do have ST overlays. They are scrutinized a little more heavily. COMMISSIONER MURRAY: I certainly understand the desirability of maintaining species, but I just wonder if -- because one of the things you said, it's not intended to be applicable to single- family plots, but basically the response you gave made it seem to me that it's possible that somebody would be prohibited from using their property. And I just -- I think it's just hard for me to understand this process. MR. LENBERGER: The amendment allows for relocation, or -- if you have suitable areas on the property. Nowhere in the plan amendment does it say you can't build. COMMISSIONER MURRAY: Okay. So in furtherance of that, if I have that single parcel, even though it's not intended to apply to me, somebody decides it applies to me, I'm now told that there is a certain type of plant that is on my property that can't survive with relocation. You mentioned one of them that grows on something else. Page 21 October 2,2008 Where does that put me? MR. LENBERGER: You can develop your property. You can remove the plant. There's no restriction. COMMISSIONER MURRAY: So what's the teeth in it then? What is it we're doing? MR. LENBERGER: And you can argue that -- we've gone through a lot of different stakeholder meetings on this. All kinds of opinions. Staff is trying to meet some middle ground here. You can go with the idea -- and I understand if you want to give direction to say this isn't needed, that's your prerogative. But staff is trying to meet a middle ground with all the input we've received. COMMISSIONER MURRAY: I'm not sure that staff needs to occupy the middle ground. I'd like to be in favor of something that has clarity to it. I'm trying to understand what it's intended to do then. The recitation, you know, let's not hurt anything, wonderful. But in reality, what is it that happens if you do hurt something? And if nothing happens, why are we doing this? I'm sorry, I'm just confused. MR. LENBERGER: So you're -- CHAIRMAN STRAIN: Go ahead, Bill. MR. LORENZ: Yes, thank you. For the record, Bill Lorenz, Engineering and Environmental Services. I think the intent here is to deal with the listed plants when we have a development activity that translates essentially into a preserve area. Because as you notice, one of the first emphasis is to relocate on-site a selected set of plants into a preserve area. The preserve area is going to have a preserve management plan. It's going to have some degree of maintenance and follow-up over time to ensure viability of the preserve and what's in it. So one way of thinking about the applicability is to those developments that translate into preserve area. Page 22 October 2, 2008 I certainly don't envision -- and we can clarify the language. And I think this seems to be the direction from at least some of the comments from the members, that it should not apply to single-family residences. And one of the reasons is, is because single-family residents do not have the capability to relocate into a preserve. They don't require a preserve on-site. So what we're trying to do is we're trying to fit a little bit of a gap whereby the state does not require property owners any degree of restrictions for either relocation or preservation of a select listed plants that we have in this amendment. But that in a development -- for a development where there's a preserve for the -- at least for some of the plants, that there is a -- there is some degree of requirement to relocate those plants into the preserve. And that's kind of -- that's the outline I would say is the key points that we try to work through the stakeholders group and then apply here as a recommendation. CHAIRMAN STRAIN: Go ahead, Ms. Caron. COMMISSIONER CARON: Why couldn't you say that in one paragraph? CHAIRMAN STRAIN: I was just going to -- I'm writing that down right now. COMMISSIONER CARON: I'm serious. Bill, you just said it so specifically. Here's what we want to do. We want to make sure that if you've got a development with a preserve on it and we find other of these plants that we've listed in the back, these 14 plants, we'd like you to relocate them there. I mean, this is one paragraph, not pages and pages and pages. I mean, it's a very simple thing that you're trying to accomplish. And you've picked the 14 plants. And you just want to get them relocated into the preserve that's already required. Page 23 October 2, 2008 CHAIRMAN STRAIN: If you want a bite of the apple, you probably have an opportunity to get it. But if you want to swallow the apple whole, I think that's going to be a problem. Same thing happened with the bald eagle thing. Instead of addressing the issue at hand, you tried to address the whole thing and you risked the whole thing being flushed down the proverbial toilet for an item that you never needed to go into. And we're suggesting you be a little more concise and precise here and it might be palatable versus that. I think we need to take a break 'til10:15. We'll come back, and I have still two more questions on that page. So, okay? (Short break.) CHAIRMAN STRAIN: Okay, everyone, would you please resume your seats and we will go back into this high speed discussion. Cherie', don't worry, it's not going to be that fast. Okay, we left off on Page 143, and Steve, I think I just had one or two remaining questions. Under three, the title says management, and the words and monitoring plans were added. You may -- I've read so much lately, I can't remember it all until I get to my notes. Have you laid out what a monitoring plan is and the requirements of a monitoring plan? And if so, why won't we just include it as part of the management plan that the management plan has to have monitoring aspects in it, and keep it simple instead of having two separate plans. MR. LENBERGER: They're not separate. It's a subset of the preserve management plan. As all the preserve management plans we review, there's always listed species components built into it. It's not a separate plan, per se. CHAIRMAN STRAIN: But couldn't the preserve management plan, because the species are supposedly in the preserve, wouldn't you want -- why couldn't the monitoring aspects of that piece or whatever Page 24 October 2, 2008 be part of the preserve management plan? MR. LENBERGER: It is. CHAIRMAN STRAIN: Okay. Then do we need to have the words and monitoring referenced? You want preserve management plans, right? MR. LENBERGER: Monitoring is a component of it. To clarify. CHAIRMAN STRAIN: Well, just like the methods of revegetation, the methods of preservation, management, burnoffs and things like that are all components of it, but we don't have a burning plan or a weeding out plan or a cutting dead tree plan, we -- why don't we just call it all-- see, here's what can happen. A consultant who wants to make more money, and there are plenty of those out there; I don't mean in this room, gentlemen -- could say well, I'm going to charge you 1,000 bucks for a monitoring, and oh, by the way you need a monitoring plan, that's another 1,000 bucks. I'd rather it just said look-it, we need a management plan, the county already has put everybody on notice it's got to have the monitoring in it as well. And I just saw the consultants cringe, because they know they just lost half their fees. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER SCHIFFER: Suggestion on that is that what if you just use the -- made the word plan singular. You did that in the general requirements I think. Then that just -- and there's a couple places you might want to knock the S off of plans so that it's a management and monitoring plan. MR. LENBERGER: Oh, I see what you're saying. COMMISSIONER CARON: Yeah, that would work, yeah. MR. LENBERGER: That would work. CHAIRMAN STRAIN: Okay. Okay, then that would take us to Page 144. Questions on Page 144? Page 25 October 2,2008 (No response.) CHAIRMAN STRAIN: Under F, Steve -- go ahead, Ms. Caron, I'm sorry. COMMISSIONER CARON: I'm sorry. Some of the same that we've already discussed. CHAIRMAN STRAIN: Right. But I had something different. Under F it says, all preserves with listed or protected species on-site, or when a site is known to be a foraging habitat for listed or protected speCIes. Well, all preserves are foraging for something. So most dubitably any particular species could lay claim to all the preserves in the county. So I'm not sure that that's applicable, I mean, that works the way it's written. Because basically you're saying whether there's a species there or not, you want a monitoring plan for one, because the preserve could be foraging habitat, which a bird landing in it means it's foraging habit (sic). I'm just not sure that -- I'm not sure how this works, Steve. MR. LENBERGER: I'll get clarification from management on this one. CHAIRMAN STRAIN: Mr. Midney? COMMISSIONER MIDNEY: When they do the -- you know, the evaluation of species when the environmental consultant comes in and they spend a few days counting the species, they count not just the ones that are actually there all the time but they're on the lookout for species that might be just coming and foraging and leaving again. But it says is known to be foraging habitat. So I think that would sort of reduce the possibility that you could just try to catch everything that might -- any bird that just might fly over . You're talking about is known to be. And since these things are evaluated by environmental consultants, then that would sort of catch that, I would think. Page 26 October 2,2008 CHAIRMAN STRAIN: Well, my concern is if there's a tree in it, trees are known to have birds stop and roost in them. So now all of a sudden we have a habitat that is known. I would rather that we didn't give it the broad language. If the intent is like you say, only those species identified in an EIS or by an expert that was on-site, fine, limit it to that. But let's not open it up to something that wasn't specifically identified; otherwise you could have monitoring programs required for all kinds of species on any kind of preservation land. Go ahead, Susan. MS. MASON: If I might say something. This whole section doesn't apply just to the preserves, it's to the evaluation of the development when it comes in. It's information that's going to be used to evaluate where a preserve location would have to be if there needs to be roadway and sign things. And when I read when the site is known to be foraging habitat, that would be the type of thing that either the environmental specialist for the county observed something on-site or it was documented in a wildlife -- a listed species survey on the site. That's how it would be known, not -- or through other data, whether it's through mapping that might be from the Wildlife Commission or Wildlife Service or something like that. CHAIRMAN STRAIN: Well, if it needs to be clarified, maybe that helps. Ms. Caron? COMMISSIONER CARON: Yeah, because it is only for the listed species, so -- CHAIRMAN STRAIN: Okay. COMMISSIONER CARON: It's not every bird who lands on a tree anywhere foraging for anything. CHAIRMAN STRAIN: This says listed or protected, so we're Page 27 October 2, 2008 removing the word protected -- COMMISSIONER CARON: Right, we've already been through protected. We asked them to take out other than the bald eagle, that it just be listed species other than the bald eagle. CHAIRMAN STRAIN: Okay. And so you're going to remove the -- I don't need to keep telling you to take out the added references MR. LENBERGER: No, we'll go through the whole document. CHAIRMAN STRAIN: Okay. Any questions on Page 145? (No response.) CHAIRMAN STRAIN: On number five it says, the management plan shall include both qualitative and quantitative baseline information that describes existing conditions. What do you mean by that? MS. MASON: The information that would be required would be -- the qualitative would be description of like the type of habitat that's on-site. And quantitative would be more the acreage, number of burrows, number of estimated tortoises, information like that. CHAIRMAN STRAIN: Okay. MS. MASON: I didn't write that language, so I'm not really sure if it needs to -- if that's a reference to the draft or the approved Wildlife Commission management plan. It may be some language that was taken directly from that, because I think a lot of their requirements were added to ours, since it changed our requirements. CHAIRMAN STRAIN: Where is the EAR-based amendment that would pertain to this sentence? MR. LENBERGER: As I mentioned earlier, the EAR-based amendment strictly was for listed plants. The update of the gopher tortoise and bald eagle information came at the request of the EAC. CHAIRMAN STRAIN: Okay, but what did the BCC request? Page 28 October 2, 2008 Didn't they recently suggest that they wanted to see only amendments coming forward that were required or actually assisted in endeavors for business, not created more regulatory amendments? And I'm just wondering how this -- is this something that meets the guidelines of what's supposed to be part of this cycle now after the discussion the BCC had about a month or two ago? MR. LENBERGER: Understood. I would have to let management respond to that. CHAIRMAN STRAIN: Because we started out today, and it's titled listed plants. And you show us an ERA item that says evaluate, which by the way, without the evaluation I'm not even sure why we're discussing all this stuff. But then we get into the -- it says with the evaluations done, it would assume that you would look at an adoption into Land Development Regulations addressing the listed plants if the evaluation was successful. That's why I'm puzzled as to all the other references I find in here that have nothing to do with listed plants or than the item of the CCME. I'm not sure how they got there. I'm do know that the BCC provided direction to staff not to bring things forward that didn't pertain to certain criteria. I just want to make sure we stick to what they stay. Mr. Schmitt is coming up, maybe he's got something to offer. I think he was right there the day they did that. MR. SCHMITT: Well, let me -- for the record, Joe Schmitt, Administrator, Community Development. You need to understand most of these and a lot of these amendments started long before that guidance was sent to staff. And these amendments have been -- were started early spring, they've been through several review committees, been through the EAC. The language, the board provided guidance, but the guidance Page 29 October 2, 2008 they provided was basically general in nature. These amendments were in process and being sent through the various committees. So just summarily to apply that rule, we'll take your comments and forward them. CHAIRMAN STRAIN: Oh, no. I'm just trying to understand what their intent was. It seems to me that they expressed that intent in the middle of the process, understanding full well where the process was. And if they didn't mean it to apply at that point, then why did they say it? That's what I'm kind of-- MR. SCHMITT: To be frank, we didn't really get specific guidance. They discussed a letter that was sent to them by the DSAC. It was discussed at the meeting. And yes, they voted and basically gave a nod to discuss that. But we were already in the middle of this cycle, and in fact since then we've had two other amendment cycles being proposed. We're in the middle of a sign ordinance amendment cycle as to comply with a court order. We're also -- we're directed to come back and amend another amendment dealing with boats allowed in front of residential properties. And there's also now another amendment cycle being requested involving properties in Immokalee. So I know what they said, but like I said, this amendment cycle was well in hand and well underway. And I mean, if you have problems with what's being presented, some of these are -- most of what you have are EAR-based. Some of it is intended to clean up and provide specific guidance in regards to the environmental standards. And if you disagree with that, we'll take your comments and forward them. CHAIRMAN STRAIN: Joe, I just want to make sure that this commission, just like staff, follows the direction that we're given by the Board of County Commissioners who we have -- we actually respond to. Page 30 October 2, 2008 So I want it clear for the record that you believe this is not in objection to anything that they explicitly would want. That's fine-- MR. SCHMITT: Well, it may be. I can't categorically state that. It may be. It's just that this amendment was already in process. And I did not go in and take out of this cycle amendments that were already in process and that had already gone through the EAC, had gone through the DSAC and have been through your committee, or at least -- don't forget, you were scheduled to complete this cycle, if I recall, the 28th of August was the last date. And -- CHAIRMAN STRAIN: Well, I would suggest for your department's benefit from here on out, don't ever think we're going to go through these fast again. We're not going to. There were too many mistakes in this one that -- I know not all of the staff consider them mistakes. But there are too many unseen consequences that we've heard already on the ones we sent back for rewrite that had they been implemented there's no telling what would have happened. MR. SCHMITT: And I fully respect and certainly thank you for your input on that. That was one of the things I stressed to the DSAC specifically, they're the practitioners, many of the DSAC members are the practitioners who apply these. And just as I stressed to this panel, I asked to make sure we review these things so they are amendments that we can implement. Because certainly the staff, when they prepare these and they go through legal review, they kind of go through a different prism and they're looked at differently. I'm concerned about the application and the implementation. And I truly appreciate, and I expressed that to my boss as well, saying we may not get some of these to the board until spring because of -- I want to make that what we present to the board can be -- are understandable by the industry and certainly can be applied. CHAIRMAN STRAIN: Right. And I think we're all in agreement Page 31 October 2,2008 with that, and that's why we're taking our time and trying to ferret out every question. So thank you, we will continue. Steve, there's the last part of that sentence that was added that says, remedial actions, if proposed activities do not achieve desired results in an estimate of annual management budget for the site. Okay, remedial actions if proposed activities do not achieve desired results. What are the proposed activities and what are the desired results that you're referring to? COMMISSIONER MURRAY: Sentence doesn't even make sense. MR. LENBERGER: I can't answer the specifics to that. I didn't prepare that language. But I can say this is in a context of a preserve management plan. You're producing a preserve. Preserve may be all or a portion of the habitat for the listed species. There may be impacts to some of the listed species on-site. And some of them may have a detrimental effect or an effect on the listed species. So it appears to me that this has tried to address those things that could happen. And -- CHAIRMAN STRAIN: Well, but it's saying remedial actions. So that means someone's going to have to spend money to fix something that broke. And I'm just wondering what is it that you think is going to break and how do know that it did not achieve the result that it was intended to be and it broke? How does that all happen? And I think that needs to be either explained or something, because I don't understand it. MR. LENBERGER: I'm trying to think of an example. Let's just say you wanted to put a trail through a pine flatwoods with RCW cavities and that trail had an effect on the root system of the pine trees and it died. That would be something that we would look at. Suppose you had a trail system where quite a few pines were dying and it affects the foraging habitat, what kind of effect that would Page 32 October 2,2008 have. CHAIRMAN STRAIN: Before you go too far on those examples, it says remedial actions if proposed activities do not achieve desired results. So you're saying if we had a -- if we're going to put a trail in, our activity would have been to do what in regards to the desired result? I don't understand how your example fits. MR. LENBERGER: I'll defer to management on this. MS. MASON: If you refer back to the beginning of the new language where it talks about after the baseline information of existing conditions, there's goals for future management actions and specific activities to be implemented. Remedial actions would kick in if you intended on managing the preserve this certain way and in your -- the applicant's best estimate the tortoises would have adequate forage on-site but that didn't happen. There was a die-off, whether it was related to changes in stormwater that weren't anticipated or a fire or whatever might happen in that preserve, that they would have a remedial plan on what they would do if their goals were not met. And that might be maintaining the number of average gopher tortoises on-site or it might be an estimated increase in habitat or forage. And if they come in and do monitoring and there's less forage available, to come up with a plan on how to stop the slide and perhaps turn it around and not just keep replacing -- sometimes we get into these preserves where people just keep replacing things over and over and they keep dying. That's not benefiting anyone. You're not getting a viable habitat, and the owner of the property is spending a lot of money. So if they come in, propose new actions and it works for that, then overall it's less expensive for them and you get the desired results from your management plan. CHAIRMAN STRAIN: Well, just like you're suggesting in the Page 33 October 2, 2008 first part of that sentence to include qualitative and quantitative baseline information, I think you should have something that is that factual in regards to what remedial actions and proposed activities do not achieve desired results. That just seems like a very ambiguous section of wording. I'm trying to understand what you're trying to clarify that with, but I'd feel better if it was clearer at all-- Mr. Murray. COMMISSIONER MURRAY: Not to pick on Steve, but the example you used, Steve, about a trail going through and then a tree dies off, then the red-cockaded woodpecker doesn't have a place to sleep at night. If you had to replace the tree, there wouldn't be a nest and the red-cockaded woodpecker would be gone, wouldn't it? MR. LENBERGER: Yes, it would. If there were no other nests, it would probably disappear -- COMMISSIONER MURRAY: Right. MR. LENBERGER: -- unless it had starter holes. COMMISSIONER MURRAY: So in that sense remediation will not have achieved anything. And again, I recognize you were trying to find an example, and I'm not trying to embarrass you or say anything negative. But I think it points out, though, that in an attempt to try and broad -- you know, shoot it with cannon, it becomes difficult to really even sustain -- it counters that examples people could give you -- people can give you that that initiates argument. And of course that's not what you want to achieve. And so, you know, the remedial actions -- I listened to what Susan said. And okay, sounds good. But would the qualitative and quantitative baseline give you your starting point? . MS. MASON: It would give a starting point. However, it also requires some goals. Most of the time gopher tortoise habitat that's put in preservation isn't in ideal conditions. There's work that needs to be done to bring it up to a better standard. Page 34 October 2, 2008 So that would be -- you've got your baseline would exist today. You come up with a plan on how you're going to improve it. And then if that plan doesn't work, the -- I think -- you know, I certainly am open to some suggestions, but I think the remedial actions proposed are really almost by definition going to have to be somewhat vague. Because the consultant and staff are going to review this with the intention of getting a plan that functions properly. The remedial action is a fallback if it doesn't. And it would allow them to -- if they have a plan A, plan A doesn't succeed, but they don't have to come in, modify the approved management plan to try to implement plan B. So it in a way would be easier on the applicant and consultant to just be able to fall back on this, rather than having to reapply, have us review their proposed changes. The more -- as these things go on, I think they might have more templates that would work under most conditions. But since this is newer, things will need to change. And this will give people an opportunity to try to get as much information in an approved management plan for gopher tortoises. And that was one of the things I wanted to mention. I know Steve did give an example, but that was just a general example of trying to do remediation. This section just applies to gopher tortoises. So it would only be for gopher tortoises. And they -- I guess I would take some suggestions -- COMMISSIONER MURRAY: I would say to you that time is a factor that's obvious but not qualified here effectively. Because when you speak of remedial action, what's the predicate for it? When will it first be evaluated at the initiation point? When will it be second evaluated? When will it be tertiarily evaluated? You should qualify it a little bit further. I understand your intent with qualitative and quantitative, but Page 35 October 2, 2008 perhaps some examples might lend it some clarity. CHAIRMAN STRAIN: Steve, I mean, I think we've exhausted 145, so we'll probably move on. Something just I wanted to mention to you when we got back from our break. About a week or two ago we had requested a clarification of a base number used on a Growth Management Plan amendment by a private party. They came back with a response that the expert company, the owner of the company decided that the number that was used was the right one to use. When you come in with your evaluation, I would -- personally I would rather see not just your opinion or those of your departments that the evaluation was shown a need, I'd like to see how you -- what the quantitative and qualitative analysis was that proved the need. So I wanted to make that clarification to you before I forgot and moved on. MR. LENBERGER: You're talking cost-wise, is that what you're CHAIRMAN STRAIN: No, I'm saying I know you earlier said your department or you guys believed there was a need for the protection of listed plants. That's not an evaluation under what I would think is required. Just like we wouldn't accept -- and I think it was Hank Fishkind's opinion that commercial should be allocated at 2.0 for the county. We said we wanted to see back-up data, we wanted to see agency reports, something that substantially stood up to that 2.0. They never produced it, that I know of. Same kind of here, I don't want to see you or one of the members of your department say well, we've evaluated it and we believe it's needed. No, I want to see your percentages, I want to see your studies, I want to see applications where you can show and prove that it's needed Page 36 October 2, 2008 so that we even know that this protected -- or EAR amendment even kicks in. Then we -- I certainly would feel more comfortable with reviewing this. So I just wanted to make sure before I forgot that that point was made. Page 146, are there questions on Page 146? COMMISSIONER MIDNEY: I do. CHAIRMAN STRAIN: Go ahead, Mr. Midney, then Mr. Schiffer. COMMISSIONER MIDNEY: On 7.A, you talk about desirable criteria of five feet to the water table and well drained. What percentage of the year? Because usually when they talk about soils, they say that this soil is -- you know, the water table is at such and such for so many months of the year. That's not a constant thing. MR. LENBERGER: Yes, there's no indication if it's a wet season water table. I assume Barbara took this out of the state plan, so I can't answer your question. But it probably should indicate what time of year. It has water depth -- the depth to water table at 1.5 feet or greater. I guess that's a minimum that at least has to have at least 1.5 feet. CHAIRMAN STRAIN: Okay. Mr. Schiffer? COMMISSIONER SCHIFFER: Yes, mine's on 6.f, the top of the page. What kind of fencing are we talking about here now? Because you're adding some requirements that the fence has to protect tortoises from being killed by people. I mean, what is the expectation, and what kind of fencing are we talking about here? And since this is now bringing in the requirement that it has to be a permanent fence, what are we looking at here? MR. LENBERGER: I can answer general context. Like I said, I didn't prepare these areas of the code. But generally temporary fencing is usually some sort of chicken wire type fencing dug in the ground to Page 37 October 2, 2008 prevent tortoises from burrowing underneath and lined with some kind of a turbidity cloth to prevent the animals from going through, trying to go through. Permanent fences that I have seen mostly consisted of small chain link fences or walls, sometimes in the case they put a little wall in to retain the animals. That's what I've personally seen. COMMISSIONER SCHIFFER: But is this bringing in the requirement to do that or is that in there someplace else? In other words, is there a requirement that you have to wall off the tortoise area? MR. LENBERGER:No, there's no requirement now. I understand the reasoning behind it, you know, to prevent them from running into the road and disappearing or -- and they're also sensitive to being disturbed by -- as it says there, neighborhood dogs. As a matter of fact, people say to me there used to be tortoises here, my dog used to run up to them all the time and then they disappeared. Well, a certain amount of disturbance like that, they do disappear. They can't take that on a continual basis. So I understand the reasoning behind this. Whether it needs clarification or not, I'd look to management for some direction there. COMMISSIONER SCHIFFER: And my question really is, what kind of standards do we have? For example, is the intent here to surround the tortoise preserve area with a fence, in which case that tortoise wouldn't be able to leave? MR. LENBERGER: Well, there are some preserves that are like that, which are completely surrounded by development. Generally speaking, though, if an area that's adjacent to some natural open areas, whether -- let's just sayan FPL easement, for example, tortoises naturally go to those areas because they have herbaceous groundcover to forage on. So in that case you wouldn't want to restrict their movement into those areas. Page 38 October 2, 2008 I think it's mostly intent to where it's needed to protect these animals from being killed or harassed. COMMISSIONER SCHIFFER: Anyway, my guess -- to sum it up, my question, this seems a little vague and -- in other words, how would somebody determine whether they need it? How would they -- if staff says they need it, there's nothing here that they could say they don't need it from. So just some sort of standard, some -- MR. LENBERGER: Criteria, yeah. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Steve, are people prevented -- are they told not to go into preserves? Are they prohibited from going into preserves? I mean, to your knowledge are they -- is that something that there's signs or anything, cannot go into the preserves? MR. LENBERGER: They're posted as protected areas. The reason they're posted is to identify them as a preserve -- COMMISSIONER MURRAY: Right, okay. MR. LENBERGER: -- and prevent encroachments from like lawnmowers and -- COMMISSIONER MURRAY: Got that. MR. LENBERGER: -- dumping debris. COMMISSIONER MURRAY: Okay. MR. LENBERGER: Generally we promote through tail systems to use preserves. Some preserves don't have any trails -- COMMISSIONER MURRAY: You're answering more than I want to get. Just give me -- be patient with me. MR. LENBERGER: Okay. COMMISSIONER MURRAY: My concern is if the preserve is part of a development, somebody has responsibility for the preserve. Generally the neighborhood, right? If you put a small fence up, you create a tripping hazard. Page 39 October 2, 2008 Has anybody even given consideration to t4e consequences of that? MR. LENBERGER: There should -- COMMISSIONER MURRAY: If you're advocating something that can cause a human being injury, and while I don't want to see a tortoise die, I think that the neighborhood -- foisting on the neighborhood a significant -- potentially significant responsibility, something that needs to be thought out. You would agree? MR. LENBERGER: Yes. Generally we consult Ray Ashton, who's an expert on gopher tortoises, and he encourages the use, having public access for the appreciation of the preserve and the animals in there. And he recommends having gates where people can access it. COMMISSIONER MURRAY: Okay. CHAIRMAN STRAIN: Any other questions on Page 146? (N 0 response.) CHAIRMAN STRAIN: Steve, back on F. MR. LENBERGER: Did you say F? Okay. CHAIRMAN STRAIN: Yeah, same one. This construction fence I understand. But the permanent fence is a concern, because I -- first of all, the cost and the maintenance, whether it's a -- if it's a block wall two or three block high, if it's a chain link fence, whatever, there's a huge cost on some of the sizes of these preserves. Second of all, but more importantly in regards to how we got these preserves even sold to the development community to begin with, was that they could be incorporated as part of an asset to their development for as a view amenity. I mean, we're doing just the opposite. Example: Tor daughter's house over in Olde Cypress, they're fighting over setbacks on a preserve now. Would they even be arguing over it if they had a wall behind their house that didn't give them a clear view of it or a chain Page 40 October 2, 2008 link fence that prevented them from really seeing it in whole? So I really don't think this is a good idea. I think in the end we end up losing more land than gaining it because it turns an amenity to a development site into a negative. And I think the development community as a whole would probably have a bigger problem with that than even trying to make the preserves better in other ways. So that aspect of this is a real concern, and I wanted to express it to you because I just don't understand. As far as dogs harassing and killing gopher tortoises, well, we have coyotes and we have racoons and we have other animals out there that do the same thing. And how you're going to stop all of them, I just don't know. MR. LENBERGER: Just a clarification on that point. I didn't say killing. But anyway, coyotes and racoons will naturally investigate. If a tortoise is a very small youngster, it could be eaten by it. That's a natural thing. We're talking repetitive, a dog in there every day, going up to it, pushing it around with its nose, that type of thing. That's what I was referring to. Wild animals will see if they can eat something, but they're not just going to go and play with it as a dog might do. That's what I was referring to. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah, I'm just wondering if the intent here is for something more specific and we haven't gotten the language correct. In the City of Naples, just south of the Coastland Mall, there is a preserve area which is used for gopher tortoise habitat. It's off-site and a lot of people use this. That habitat, when it was originally created, didn't have any fencing around it. What they found was as they kept adding tortoise on here using this off-site mitigation area, was that 10 and behold, the Page 41 October 2,2008 tortoises decided to cross 41. Not a good thing, because most of the people going down 41 weren't stopping for them. So they put up this little fence around that piece of property to keep the tortoises in the preserve area that they wanted them in. Is that really all you're trying to do here is for situations like that? MR. LENBERGER: Yes, that's what we're trying to do, trying to look out for the safety of tortoises where we think there's a likelihood that they will be subj ect to harm. COMMISSIONER CARON: So somehow I think we again need to simplify the language and get back to what the real issue is at hand and try to figure out the best way to do that, and not try to make it so overarching that somebody thinks that every preserve everywhere has to have now a gopher tortoise fencing around it. Maybe that is appropriate, maybe it's not. Maybe only a two-sided fence is appropriate, just to keep them going the way that we want them to go. I don't know. I think it was good that you used the word may after remain after the fact. I think that does give staff and petitioners some latitude in figuring out exactly how you want to direct the tortoise habitat. But maybe we just need to, you know, again refine some of that language. CHAIRMAN STRAIN: Okay. And my last comment on Page 146 is an experience that I've had many times in doing due diligence on property locating gopher tortoise burrows. And there's a lot of them out there. Many times they're in places you would least expect. And many, many times they're in places that don't even come close to the descriptive language that we're now considering as habitat under 7.A, B, C, D and E. Farm field embankments, for example, have gopher tortoise burrows almost on a regular basis. Back yards of people in the Estates have gopher tortoise burrows on a regular basis. Mowed, cropped areas, areas without undercover. Page 42 October 2,2008 I'm not sure what a forb is. It sounds like something from Star Wars but -- so maybe you could tell me what a forb is. What's a forb? Does anybody know? COMMISSIONER MURRAY: It's not a legume. CHAIRMAN STRAIN: It says legumes and -- oh, when you said lagoon, I thought you were thinking of -- COMMISSIONER MURRAY: No, legumes. CHAIRMAN STRAIN: That's I think is -- COMMISSIONER MURRAY: That's a bean. CHAIRMAN STRAIN: -- some kind of root. COMMISSIONER MURRAY: No, that's a bean. CHAIRMAN STRAIN: But a forb -- it's a bean? COMMISSIONER MURRAY: Yeah, legume is a bean. I have never heard the word forb. CHAIRMAN STRAIN: I don't (sic) either. I don't know what a forb is. And it's appeared twice. The next page has got it, too. MR. LENBERGER: Herbacious vegetation other than grasses. CHAIRMAN STRAIN: So a forb is anything but a grass. MR. LENBERGER: I'd have to look up the exact definition. MR. KLATZKOW: There's a dictionary definition of it, are herbaceous flowering plants that are not graminoids. COMMISSIONER CARON: That was helpful. Thank you. CHAIRMAN STRAIN: It sounds like a code. What's a graminoid? MR. KLATZKOW: We'll put that in the administrative code. MR. LENBERGER: Graminoid would be the grasses. CHAIRMAN STRAIN: Boy, I hate to see Cherie' trying to spell all these words. My point was that, you know, leaving the language that was there to me covers a lot more areas than trying to make the Port Royal of gopher tortoise habitat. And I'm just not sure it's all needed. Page 43 October 2, 2008 So I like some of it where we're talking about a minimum acreage. I think that's a good idea. I think we need more study to make sure we have the factual data that supports the area like the qualitative and quantitative analysis. There are good points in some of the changes, but quite a bit of it is going beyond what I think it needs to be. And Ms. Caron kind of summed it up earlier. Go ahead, Ms. Caron. COMMISSIONER CARON: And I just wanted to make one other point and that is that this doesn't apply to single-family homes in the Estates. CHAIRMAN STRAIN: Right. COMMISSIONER CARON: We discussed that earlier. CHAIRMAN STRAIN: No, I was using the example that gopher tortoises don't necessarily pick the most suitable habitat that we've defined here. They pick all kinds of places to burrow. And I can tell you from experience I found that out. And those places that I've seen a lot of times don't meet the criteria we have here, and that's where they're living and they're doing well. So I'm not sure we have to go into that kind of specificity. On to Page 147. Anybody have questions on Page 147? (No response.) CHAIRMAN STRAIN: 8.b has an addition, says adequate suitable habitat for gopher tortoises. And the word adequate, how do you define adequate suitable? Because I can see where you can say suitable by number seven, or you can say suitable habitat for gopher tortoises as described above. But how does it -- what's the adequate word in there for? COMMISSIONER MURRAY: Area, maybe. Amount of space. MR. LENBERGER: I would interpret it as area. CHAIRMAN STRAIN: Then could you actually -- I mean, Page 44 October 2, 2008 adequate could mean a lot more than just area. So why don't we just say enough acreage suitable -- COMMISSIONER MURRAY: Sufficient. CHAIRMAN STRAIN: Yeah, sufficient acreage with suitable habitat as described above. And I think that 25 acres is what we're saying. So that might be better to say. Okay, Page 148. Any questions on Page 148? (No response.) CHAIRMAN STRAIN: Steve, under 12 you say inactive or-- gopher tortoises shall be removed from all active and inactive abandoned burrows. Well, if it's abandoned, why are we removing them? MR. LENBERGER: Because often tortoise commensals and juvenile tortoises will use abandoned burrows, and you may not see any signs of these animals. And therefore they would still be classified as an abandoned burrow. But they may harbor commensals, gopher tortoises, and they're very young juveniles. CHAIRMAN STRAIN: First of all, 12 doesn't -- where does it use the word commensals? It says gopher tortoises shall be removed from all active and inactive and abandoned burrows. So if it's got a tortoise in it, wouldn't it no longer be abandoned or inactive, it would be an active burrow? I don't understand. MR. LENBERGER: If it's a very young tortoise, you may not notice its presence. And it's the burrow appearance, which classifies it as abandoned, in the sense that it may not have a young tortoise in there, but by a description of how that burrow looks on the outside through state classification. CHAIRMAN STRAIN: Okay. But if it -- if the young tortoise is in there and you don't know he's in there because it appears to be an abandoned burrow, then how are you going to remove them? Page 45 October 2, 2008 COMMISSIONER MURRAY: I think you've got to call code enforcement in that case. CHAIRMAN STRAIN: Steve, that doesn't make sense. If you've got a baby tortoise in an abandoned burrow, then you wouldn't know that you have to remove them. So how can you be told you've got to remove them? MS. MASON: It may be better to clarify that all active, inactive and abandoned burrows shall be excavated to ensure that all gopher tortoises are removed. Because that's the only way you can tell. Like Steve was talking about, the state has definitions for what's an active burrow, inactive burrow or abandoned burrow, and there have been case where what is classified correctly by the definition as being abandoned actually has gopher tortoises living in it. So it's a classification purposes for mapping and estimating a total population on the site, but it does not guarantee that there's no one. living in there. The only way you know is by excavating the burrow. CHAIRMAN STRAIN: So now you want everybody to go out and excavate all the abandoned burrows in the county. MS. MASON: That's been a requirement for -- if it's a known burrow, they have to excavate it. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah, again, why don't you just say gopher tortoises shall be removed from all burrows located within the area of construction. That's what you want them to do. You want them to -- if they've got a burrow there, you want them to look in it and make sure there's nothing in it, right? MR. LENBERGER: We could do that. CHAIRMAN STRAIN: They how do -- they way they could check to verify something's in it, they can use a stick method where they check for anything going in and out, or can they use videos now? Do they have those little spy cams that can weed their way down the Page 46 October 2, 2008 holes? MR. LENBERGER: But they're not foolproof. They have to be excavated. CHAIRMAN STRAIN: Well, neither is excavation. I mean, that excavation sure does a lot of damage on its way through. You're not -- so how do we make life simpler instead of more complicated and still accomplish the goal, if we can? Because I'm not -- I've seen the excavations. I've been present when they've done 'em. And they're certainly far from being perfect. It would seem if there was a video cam or something else where they could inspect a burrow and have the same relative assurance that the burrow's either occupied or unoccupied as the excavation method does, why wouldn't we let them take that opportunity? COMMISSIONER MURRAY: Mark, why -- MR. LENBERGER: Because you don't have the same assurance with the video camera. CHAIRMAN STRAIN: You don't have what? MR. LENBERGER: The same assurance with a video camera. Often burrows end and they turn, and the video camera will not get that angle. And it will show you as no tortoise present, but yet when you go in there to excavate it, there is a tortoise there. CHAIRMAN STRAIN: Mr. Murray, did you -- COMMISSIONER MURRAY: I was -- no, I'll pass on it, because I thought I had an answer. You know, there are video cameras that have, you know, soft thing. But that gets into cost as well. I thought an inspection would be sufficient, but I guess not. CHAIRMAN STRAIN: Okay. It's 148. 149 doesn't have any changes. I don't know if we have any comments. 150 has no changes. I don't know if there's any comments. We'll just keep moving until someone speaks up. Page 47 October 2,2008 151 we get back into the changes again. There's some -- and this was odd. You took it out of Page 151 and dumped it over on Page 153; is that a fair statement? MR. LENBERGER: Yes. We moved it over, because the alignment was not correct, and the lettering was not correct. CHAIRMAN STRAIN: Was your intention to change it? MR. LENBERGER: No. CHAIRMAN STRAIN: Okay, you know you've got substantial changes in there? MR. LENBERGER: Well, I have -- it's been a while since I read the amendments, so if you give me a moment I'll look it over. But if you want to point them out out for me, that's fine, too. CHAIRMAN STRAIN: Okay. Page 153, the second line, you talked -- instead of -- you have a -- added the 10 acres -- or 10 percent of the boards need to be replaced. There's no reference to that in the -- MR. LENBERGER: That came at the request of DSAC. We met with them and they wanted some to quantify that. So we added the 10 percent. CHAIRMAN STRAIN: The second line says, prior to any repair work. Now, the word any is just any, and it used to say major repair work. I certainly agree major is ambiguous, but this is maybe going in the opposite direction. So then if you go out and repair one board, all this stuff has to be done. MR. LENBERGER: That was taken out. This is again in relation to the DSAC meeting. Because we quantitied it above the 10 percent and we say prior to any repair work. And then we specified greater than that described in I above. CHAIRMAN STRAIN: Okay. So how is the 10 percent rated? By physical replacement or by cost replacement value? MR. LENBERGER: I would assume physical replacement. CHAIRMAN STRAIN: Well, then should we say that? Page 48 October 2,2008 COMMISSIONER SCHIFFER: Question on this, Mark. CHAIRMAN STRAIN: Go ahead, sir. COMMISSIONER SCHIFFER: He's saying 10 percent of the board, so he's doing that. But can we also add to that within a 12-month period? Because in a building code we have a lot of things that have percentages, and if you don't have that then, you know, 10 percent a month for 10 months is 100 percent replacement, so -- MR. LENBERGER: Okay. So what time frame did you want to add? COMMISSIONER SCHIFFER: I mean, building code people are used to within 12-month periods, so that's -- MR. LENBERGER: Okay, thank you. CHAIRMAN STRAIN: Under A, it says the appropriate permit from FDEP, ifrequired. Not all of us would require an FDE permit. Or does the word appropriate mean that? COMMISSIONER MURRAY: No. MR. LENBERGER: If it's occurring on the beach, it's going to require at least their authorization, whether emergency work order or whatever the case may be. Susan, did you want to add anything regarding that? MS. MASON: (Shakes head negatively.) CHAIRMAN STRAIN: Does it require -- if they were to take out one board and replace a board, you require a DEP permit on a boardwalk going over a dune? COMMISSIONER MURRAY: Wouldn't the FDEP determining agency determine what permit is correct? MS. MASON: We coordinate a lot of times with the coastal people at DEP if we're not certain if a permit is required or not. We have the cell phone number for the coastal person, and we'll call or the applicant will call and get a confirmation e-mail about Page 49 October 2, 2008 whether or not whenever there's areas that we're not certain if something's required and the applicant doesn't know or doesn't get one, that we can get answers quickly from those agencies. CHAIRMAN STRAIN: Could it be the appropriate permit from FDEP, if required, just to clarify? Not all of them may need that. MR. LENBERGER: That's fine with me. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Well, I'd just like to say that there would be some sort of permit necessary from DEP, because we're talking about actions that occur prior to the end of sea turtle nesting season. So you're going to have to have some sort of permit from these people saying you can do something before nesting season is over. MR. LENBERGER: We can write -- COMMISSIONER CARON: So I think the appropriate, you know, thing is just fine. CHAIRMAN STRAIN: But I mean, it wouldn't hurt to have if required. Doesn't take away -- MR. LENBERGER: How about permit authorization? CHAIRMAN STRAIN: Yeah. MR. LENBERGER: Would that satisfy your concerns? CHAIRMAN STRAIN: As required -- ifrequired. We can move to Page 154. It's reinserting that prior language. And -- MR. LENBERGER: I missed the page you're on, I'm sorry. CHAIRMAN STRAIN: 154. MR. LENBERGER: Yes. CHAIRMAN STRAIN: And then Page 155. Anybody have any questions? (N 0 response.) CHAIRMAN STRAIN: And then Page 156. And of course the Page 50 October 2, 2008 last page is 156.1. Those two pages we previously had gone over. Are there any questions remaining in this section before we go to public speakers? (No response.) CHAIRMAN STRAIN: Okay, thank you. Do we have any public speakers? And those wishing to speak, just please come up to the podium one at a time. Mr. Hancock, you're the first to rise. And Nicole, I've bet you've got something to say and you want to be last, right? MS. RYAN: No. MR. HANCOCK: I knew I wouldn't have to try hard to beat Nicole to the podium. F or the record, Tim Hancock with Davidson Engineering. Not here on behalf of any particular property owner, but hopefully can bring some practical application to some of the amendments that are being proposed here today. I'll do my best to just basically state support for some of the things that you've indicated, as opposed to being redundant. The first thing that comes to mind is there are multiple sections throughout this part of the LDC where staff is promoting the restating of whether it be the golden eagle -- bald and golden eagle protection act, or whether it is technical memorandums of a specific date and time by the Fish and Wildlife Commission. One of the problems we have with that is -- and I'll use the gopher tortoise as example. On Page 143 under item 3.b.iii, you'll see the additional language of, and the gopher tortoise management plan adopted September, 2007 by the FFWCC, and technical literature cited therein. The problem when you have this kind of a specific citation is particularly with gopher tortoises. This is in flux right now. Significant flux. Page 51 October 2, 2008 And what happens when a new technical memorandum is issued? If we have gopher tortoises on-site and we're going to affect those gopher tortoises, we're required to go through the state permitting process. We're required therefore to follow whatever technical guidelines are in place by those agencies at that time. To restate them specifically in this code creates an amendment problem and an issue and may outdate this code every time these agencies change their technical memorandum. So I ask that any reference to a specific technical memorandum that is a part of the state permitting process or federal permitting process by itself be eliminated from this section. CHAIRMAN STRAIN: Tim, since you did acknowledge that this has to be -- they have to be consistent with the plans anyway, just for the reference, I still haven't sold (sic) on the necessity of it, but let's just discuss this out for a minute. Why don't we just drop the word September, 2007? It still doesn't cure the redundancy problem that I have an issue with, but it does take care of the date specific and open it up to just whatever criteria that you'd have to abide by anyway. MR. HANCOCK: And while I wouldn't have a problem with that, I guess I'm maybe more along the philosophical lines that if you have gopher tortoises -- and Commissioner Caron, you mentioned this earlier -- you know, the average resident may need a reference. Well, if you have a gopher tortoises, the average resident isn't going to know what the heck to do with them. They're going to have to have professional consultants address this. Joe and Mary Smith cannot go to the state and say I have a gopher tortoise, how do I take care of it and walk through that process themselves. They get forced into a regulatory process that's both expensive and time consuming, and they're going to have to have a professional address this. Page 52 October 2, 2008 So this part of the code I see more as a technical guidance. As that, I think the statements are redundant. But Commissioner Strain, if that's the amendment you want to make, it does resolve my initial concern. CHAIRMAN STRAIN: I'm just trying to understand better. I'm not -- I'm still not sold that we need the redundancy. But if there's a good reason that comes about and it's deemed that it's needed, then at least we ought to make it as accurate as possible. So that's where I was gOIng. MR. HANCOCK: My next comment is on Page 144. COMMISSIONER MURRAY: I want to -- CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: Couldn't we just simply use a parenthetical in there, you know, create it as a reference point as opposed to it being a requirement within the context? I mean, it seems reasonable that helping that person -- you know, that they have to at least get an understanding to begin with, but it's not the place -- it's not the particular action that they must take. But they need to be mindful of something. MR. HANCOCK: Yes, sir, I think in the code saying that you must apply with -- you know, you must comply with applicable technical assistance provided by certain agencies, I think that's well placed. But it doesn't need to be to the degree of specificity you see here. And I think it becomes an amendment issue when you get this specific. COMMISSIONER MURRAY: For those areas where most people are ignorant of those factors, and you're right, you know , make them go on a goose chase and all the expense associated with it, it certainly helps to help them along. Maybe this is not the ideal place for that, but at least parenthetically it gives them a focus. CHAIRMAN STRAIN: You know, as a suggestion, under B Page 53 October 2, 2008 instead of listing references, by the way which may not include all of them, and there may be others and now we're liable for only having listed some and not the rest that we should have, why couldn't we just say -- put a note there that there are other agencies regulating gopher tortoises and the applicant needs to review those other agencies' criteria and leave it something as broad as that so that everything is take into consideration -- COMMISSIONER MURRAY: Sounds good. CHAIRMAN STRAIN: -- not -- nothing is chanced by elimination. MR. HANCOCK: At one time that was the language in the LDC for the most part. CHAIRMAN STRAIN: Well, it was too simple. MR. HANCOCK: On Page 144, a minor suggestion under Item D.1.f. You discussed the issue of where it says monitoring program for all preserves with listed or protected species on-site or when the site is known to be foraging habitat. It raises the question, known to be, what that means. For example, Ms. Burgeson has stated previously that sometimes they'll get a phone call from a neighbor who will say, I saw such and such on the next site and they'll make a note of that so that when the applicant comes in they have that on file. Quite candidly, I don't consider that to be known to be from a scientific standpoint. I consider it someone thinks they saw something. And so if we remove the phrase known to be and just simply state species on-site or when the site is foraging habitat. Is foraging habitat means there's been a determination by someone who is qualified to indicate that foraging habitat is present. That puts it back on the onus of the professional. So that would be my suggestion on that. Under Item E and then continuing on to 3.04.02. Page 54 October 2, 2008 CHAIRMAN STRAIN: What page are you on? MR. HANCOCK: I'm still on 144, sir. CHAIRMAN STRAIN: Okay. MR. HANCOCK: We have run into a problem of complying with staffs request when it comes to this issue. And let me give you a hypothetical example. In a mining operation, for example, looking to do a conditional use to mine land, we don't have any wetlands, so we don't have to go to the district and get an ERP. Now, an ERP, typically when you apply for it they have commenting agencies; one of which is Fish & Wildlife. So if you go get an ERP that is distributed to the Corps to their commenting agencies and you get the bevy of agencies involved, and they may initiate what's called a Section 7 consultation if they think you have impacts on listed species. And I'm speaking specially about Fish & Wildlife. One of the problems we're finding now is as projects come in and we're being asked by environmental staff to get confirmation that the project has been reviewed by Fish & Wildlife, yet there's no basis for Fish & Wildlife to provide that review -- it doesn't exist, there are no wetlands -- if there are no direct species impacts, in other words, they're not for example priority one panther habitat, somebody drew a line on a map two years ago and maybe called it priority two habitat but there's no data that panther have ever been on this property, we're being asked to go to Fish & Wildlife and get some kind of a letter. The problem is Fish & Wildlife has no obligation to respond to us. There is no review process, unless you issue what's called a formal Section 10 consultation. The process doesn't exist. And what happens is we get caught up in the process of how do I get this? When I go to Fish & Wildlife, how do I get a letter saying everything's fine? Because they don't issue them. Page 55 October 2, 2008 CHAIRMAN STRAIN: No, they don't. MR. HANCOCK: There's not a formal process for it. So I have grave concern under E and extending into 3.04.02 that county environmental staff is drawing agencies into a local development order process and asking us to provide something that is not available. It's almost a de facto Section 10 consultation with no basis for it. And so I have grave concern that this is basically going to grind applicants to a halt and in issense require something that the federal agencies themselves cannot require. If there's no --let's take panther as a species for example. If there is no proof that the activity is going to harm the species, the agencies cannot require a Section 10 consultation. So now I have to go initiate one? That's like asking the IRS for a voluntary audit. You just don't do it. And so it puts the property owner in a bind where there just isn't the informal process that I think staff is looking for. CHAIRMAN STRAIN: Tim, where specifically are you talking about? . COMMISSIONER CARON: Which E are you talking about? Because neither one applies. MR. HANCOCK: I'm sorry. I apologize. D.1.g. I had it circled incorrectly. COMMISSIONER CARON: G. Okay. MR. HANCOCK: Where it says -- now it's asking written recommendations. Then when you go into 3.04.02, the fifth line, consider and utilize recommendations and letters of technical assistance from the Florida Fish & Wildlife Conservation Commission, and recommendations from U.S. Fish & Wildlife Service in issuing development orders. And so under this we're being asked to go get something we can't readily get. Page 56 October 2, 2008 CHAIRMAN STRAIN: Okay, that language isn't changed. It really isn't up for consideration today, so -- MR. HANCOCK: No, it's not, but the doors open to point out the deficiencies and issues, and I felt the change in G is a -- and I'll use Ms. Burgeson's term, tightening up, which is really additional restriction. And we're just having a problem complying with it. CHAIRMAN STRAIN: And I -- your dilemma is one I have been in many times when you try to get an agency to write a letter they don't have to write, they just don't want to. And I can't blame them. So that needs to be fixed, I certainly agree with you. COMMISSIONER MURRAY: Mark, are we on G? CHAIRMAN STRAIN: We're on D.1.g on Page 144. But what Tim was saying is by utilizing G and tightening it up, you're in effect making almost 3.04.02 on 145 mandatory. COMMISSIONER MURRAY: Well, what he does have is the word -- what they do have is the word written here, and I think that's where he's focusing on. CHAIRMAN STRAIN: Right. COMMISSIONER MURRAY: So it is open to opportunity to modify. CHAIRMAN STRAIN: Well, that one is yes, I agree with you. Yeah. But the following page was where he was -- COMMISSIONER MURRAY: All right. CHAIRMAN STRAIN: -- going to new language. MR. HANCOCK: And Mr. Lorenz just asked, and this is one problem we have is he says well, do you have any suggested language? Because this is in the GMP. Well, that -- we're not here to review the GMP, but if we were, I think the problem lies in the GMP that it may be forcing something that a process doesn't exist for. If there are letters of recommendation that are issued by Fish & Wildlife as a part of your environmental Page 57 October 2, 2008 review, whether it be through an ERP process or a Section 10 consultation which is required because of the particular merits or demerits of your project, then that information should be utilized and provided to staff as a part of the development order process. But that's not what we're being asked to do as a practical matter as we go through the process today. We're being asked to provide a letter of consultation with Fish & Wildlife that they don't have to provide. And it is problematic for us. I don't have a solution for you. MS. MASON: And if I may, just for the record, we -- that part about it being a written recommendation would free it up to be even something as informal as an e-mail. Prior to really having, you know, technical assistance in some places as a capital T, capital A, because that's a process that you have to go through, it's that Section 10 type review. It's time-consuming and I'm sure it costs a lot of money in consulting fees and everything to get that process going. But a lot of times there are more informal discussions and people will write a confirmation e-mail to somebody from the Wildlife Service, we had a conversation on such and such a date, it was agreed if we took these parameters you would not consider there to be any impact and they can get a confirmation e-mail back. Sometimes it does take a little bit of nagging on the side of both staff and applicant, but I've always found that if we're working together with the consultants to get an answer, we always can. Might not be that day, but it's in a reasonably short period of time. Especially if they start at the beginning of the process. COMMISSIONER CARON: And you will accept that? MS. MASON: Yes. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Well, I have a question for you then with regard to that. We typically -- you know, we talk to the county manager, his designee, because we recognize we want to get to Page 58 October 2,2008 the highest level of authority or designated authority. So you're saying to me that someone in Fish & Wildlife Service could send an e-mail and you would accept that, even though that person might not have the authority to author that? MS. MASON: The people who respond to those e-mails and have those, those are the ones that are designated with the authority to make a call on an eagle management plan issue or a panther issue. There are staff that are designated in those agencies, just like this one, who make the decision and use their professional experience, judgment and whatever requirements they have to make that determination. COMMISSIONER MURRAY: Okay. Now, you're working along and you've got three people that you typically work with, and one of them decides they're no longer going to send an e-mail. The other two continue. What do you do there? MS. MASON: Well, there's always that Section 10 consultation that would still be available. This is something that is a way to get a quicker response from those agencies, if you can get it. If it's something that doesn't reach that level and it requires a more thorough evaluation, then the service would say it's going to require a Section 10 evaluation. COMMISSIONER MURRAY: So basically you're adamant that a Section 10 evaluation must occur there. MS. MASON: If that's what they tell us, yes. COMMISSIONER MURRAY: No, no, my scenario was you've been doing it for a while, three of them have been compliant with your desires, not that they're a requirement. Two of them continue. One stops. You're now going to compel developer C to get a Section 10, even though developer B got an e-mail. MS. MASON: I mean, this is a requirement in the LDC and Growth Management Plan. And our -- county staff doesn't have the Page 59 October 2, 2008 authority to decide that -- to ignore the Service's requirements. If the Service says they need a full consultation, that's what would be required. We don't tell them -- COMMISSIONER MURRAY: They simply didn't respond to you. You don't know whether they did or did not take a -- MS. MASON: It's really up to the applicant. A lot of times county staff assists the applicant in trying to get answers, if we're going to be at a meeting and we know we're going to see them or something like that. If I know a consultant has sent a request to the Service and they ask me or I will often offer, I'll follow up with them in a week if I haven't heard back. Just to let the Service know that both the county and the applicant is seeking this information. It's merely to be an assistance to the consultant. The property owner is ultimately responsible to make sure that they get all their permits and start the permitting process in a timely enough manner to make sure that when the county's ready to issue a permit we can, because they've got all their other permits lined up. But staff always tries to be as helpful as possible to make sure that that process can go as smoothly as possible. CHAIRMAN STRAIN: Do we we know how much a Section 10 process would cost? MS. MASON: I have no idea. COMMISSIONER MURRAY: Shouldn't that be a part of this, or is it just dogmatic? I mean, shouldn't we know how much we're burdening people with to see if we could find a way that makes more sense? No? CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Well, we don't have any control over that. Only the state and the feds do. So we're not requiring it, they are. And we're just going along and saying that's the way it's -- you know, that's what we need. Page 60 October 2, 2008 COMMISSIONER MURRAY: In dialogue, if I understood Tim Hancock correctly, he's saying there is no process in effect for -- you cannot compel a letter or an e-mail or anything else from Fish & Wildlife. And certain situations may not be applicable. That leaves him in Never-Never Land. And so a Section 10 is the only alternative left. And a process they may have to be made to go through at great cost, perhaps, and serve no particular public or private interest. MR. HANCOCK: That is the crux of the issue. But I think if we step back and look at the GMP language, we may find the very essence of the problem. The GMP language states -- which is before you under paragraph 3 -- the county shall, consistent with the applicable GMP policies, consider and utilize -- consider and utilize -- recommendations and letters of technical assistance from the Florida Fish & Wildlife Conservation Commission. It doesn't say shall go get opinions. It doesn't say shall request things outside of the existing federal regulations that require consultation. A Section 10 consultation is specific. There have to be impacts. If there are no impacts to trigger a Section 10, then there's nothing to be issued. COMMISSIONER CARON: And the services will say to you there's nothing for us to issue, go away, Mr. Hancock, you're bothering us. MR. HANCOCK: No, ma'am, they won't. CHAIRMAN STRAIN: They won't give you a letter saying that, though. MR. HANCOCK: They'll say we'd like you to come in for a Section 10 consultation. We can't make you, but we'd like to see you do it. COMMISSIONER CARON: Okay. So staff, how are you Page 61 October 2, 2008 handling that? MR. SCHMITT: I agree, that's the problem. COMMISSIONER CARON: But we're not getting to the heart of the issue here. CHAIRMAN STRAIN: Well, there is an issue that-- COMMISSIONER CARON: Get back up here, we need to get to the heart of the issue. CHAIRMAN STRAIN: The parenthetical three that's in front of us on the screen for the GMP, why don't we just take that language, insert it in 3.04.02 and take out the entire first paragraph? Because that's all that that paragraph's supposed to have. But I notice the paragraph that was inserted in the LDC has subtle changes that are concerning in regards to what the intent was of the paragraph three in the GMP. Why don't we just live with the language that's in the GMP and be done with it. I don't understand why we need Item D.1.g and why we need to change language of the GMP in the introductory statement to 3.04.02. Leave it the same. And that gets us I think to where everybody needs to go. MR. LORENZ: If you don't mind, the intent of the policy was very specifically -- the GMP policy was very specifically to evaluate a management plan, a listed species management plan. The GMP required that -- and there are references that are listed in the GMP for how to develop your management plan that those guidelines within those references were what the GMP adopted as the appropriate management plan for a particular listed species. This policy was designed such that if an applicant deviated from those guidelines, then the county would utilize those letters of technical assistance and recommendations from those agencies to say yes, this is appropriate in this particular case. And for that particular case that particular management plan, Page 62 October 2, 2008 even though not consistent with the referenced guidelines, the county would deem consistent with the Growth Management Plan because the agencies weighed in and said we're okay with this. That was the intent of that policy. CHAIRMAN STRAIN: Well, Bill-- and I'm back to trying to clarify this whole thing. If you've got specific language in the GMP and you've modified it in the insertion in the LDC to a point where it becomes a different app -- it means something different in its application than what the intent of the GMP was, why are we even changing it? I'm just looking here, for example, in 3.04.02, fifth line down that has bold letters, development orders. But, you know, in the GMP it says, development orders on property containing listed species. Those words were dropped from the LDC. That's a limitation on when those orders would be utilized and sought. And that would also prevent then maybe the occurrence that Tim Hancock's concerned about, rightfully so. Yet in the introductory language we have on property where the wildlife survey establishes that listed or protected species are utilizing this site or where the site is capable of supporting listed or protected species. That's far beyond the reference in the GMP that says property containing listed species. We've taken the GMP language and made it much broader I think in the application by the introduction alone. Why don't we just go back to what the GMP was adopted for? This explained -- all this is starting to explain why there's been so many concerns from all aspects of the public in regards to the way some of these things have been handled within the county. I just don't understand why we're going as far as we're going with this. And Mr. Hancock is right in his concerns over trying to get something out of an agency beyond what they normally issue. And if they don't issue it and they don't need to be issuing it, we shouldn't be Page 63 October 2, 2008 needing it. MR. SCHMITT: For the record, Joe Schmitt again. And I agree. I mean, what -- this has been the problem. And the problem in simple terms is their EIS does not trigger a Section 7 or Section 10 consultation. But then it comes in and we send a note to the agency because the LDC says it. The way we are interpreting the application of the GMP, we then open a door and alert the agencies, when in fact they didn't have to be alerted in the first place because there was deemed no impact. And all of a sudden it has to go to the feds and we have to wait for -- either state or feds and we have to wait for an e-mail, in most cases it's an e-mail, waiting for them to either say yea or nay. And as Tim pointed out exactly right, well, we're not requiring you to do it, but it would be nice for you to come in and do it. So we kicked a door open that basically didn't have to be kicked up. That is the fundamental issue. And I think if you want -- and this is a very, very critical piece that if we want to change it, we need to change it today or work on this. Because this is where the staff gets caught in -- I call it the do-loop, the old FORTRAN days, you know, just go around and around. They didn't really want to know about it, but we told them about it, so now they want to know about it. Pretty simple terms. CHAIRMAN STRAIN: Yeah. And Joe, I think that this is something that we need to have -- 3.04.02. And Bill, I think if you were to take that whole paragraph, drop it all the way up until the last sentence, and then take the GMP parenthetical three and insert it above the last sentence, now you're getting the accurate language from the GMP inserted here and it means a heck of a lot different than I think what the intent -- Page 64 October 2, 2008 MR. SCHMITT: Well, why not note in there the specificity that if the environmental impact statement or the environmental assessment deems that a Section 10 consultation or Section 7 consultation is required. But they're going to have to do that. The applicant does that because they have to meet the federal and state guidelines. CHAIRMAN STRAIN: Any way you want to get to the bottom of it, I think we need to. MR. SCHMITT: Yeah. CHAIRMAN STRAIN: And I -- you asked for suggestions, I was giving you one. If you've got a better way, let's get there. MR. SCHMITT: What Susan said is exactly right. It will come in, they'll go, hey, we've got to call the agencies. Well, no, Tim says no, we don't have to call the agencies. CHAIRMAN STRAIN: Now, if the intent of members of staff or the department is that you want stricter interpretation of that GMP, then change it first. MR. SCHMITT: Right. CHAIRMAN STRAIN: Go back to the stakeholders' process and get it fixed right and fairly. MR. SCHMITT: Well, I don't want-- CHAIRMAN STRAIN: And if not, let's stick to it. MR. SCHMITT: -- stricter interpretation. I want definitive guidance in the LDC that says what staff needs to do. And I think if we're going to interpret this -- the way it's written in the GMP says may, or what was the wording -- considering utilized. Well, we'd only consider it utilized when it's required through-- CHAIRMAN STRAIN: Right. MR. SCHMITT: And assessed by an impact. CHAIRMAN STRAIN: Then let's do it that way. MR. SCHMITT: Because I could tell you from the federal side, Page 65 October 2, 2008 and I just said to Tim, you're doing a Section 7 or Section 10, they're overwhelmed. It may take six months. You know, I agree, I mean, we need to define it. And what triggers the requirement. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: But why would we have been going forward if they have an EIS that says they have no impacts and we've checked that EIS and know that there's no impact? MR. SCHMITT: Because we would then go to the agencies and have them -- COMMISSIONER CARON: But again-- MR. SCHMITT: I'll have to defer to Susan on that. It was a good question. And -- COMMISSIONER CARON: I don't know why it would have gone further. MS. MASON: The only time this would be relevant would be if it is in one of those larger areas. Mostly of the large -- MR. SCHMITT: Secondary panther habitat. MS. MASON: Right, the larger mammals. That there's -- I don't recall ever seeing an EIS where somebody saw a den or panther print or scat or something like that on the site. But it's been designated by those areas as secondary primary panther. There's going to be an increase in traffic and there's -- staff is not authorized to make a determination on whether or not it -- MR. SCHMITT: Identifies scrub jay habitat. It may just be identified as scrub jay habitat or RCW, red-cockaded woodpecker habitat. And the EIS may have not triggered the requirement, but we're aware that it's -- in those areas that were identified as potentially impacted. So we're sending notes to the agency saying tell us what you think. Page 66 October 2,2008 COMMISSIONER CARON: Yeah, okay. MR. SCHMITT: Because that was the guidance that staff -- the specificity in the LDC that says you need to consult the state and federal agencies. In this case the Florida Fish & Wildlife. COMMISSIONER CARON: Okay, I see how it was happening. CHAIRMAN STRAIN: Okay. Tim, let's get back on stream. By the way, Joe and other members of the county staff, you may want to let those people standing by for the 1 :00 thinking we're going to get farther ahead, we haven't. And I can tell you at 3 :00 for sure we will break and start discussing Phil Gramatges' issues. So if we get a -- you know, if we're in the middle of something at 2:30 and we end it, we may start at 2:30, a little bit earlier, but then there's some fillers that I know Catherine can take some time with while we wait for others to get here. So I don't think anybody other than the environmental department needs to be here when we come back from break right away. MR. SCHMITT: I'll assume they're listening. MS~ FABACHER: Yeah, I'll e-mail them. CHAIRMAN STRAIN: Go ahead, Tim. And we've got to try moving through some of this before lunch if we -- we're going to take a lunch break at 11:45, so everybody knows. MR. HANCOCK: Yes, sir. And I'm sorry, I'm not trying to-- CHAIRMAN STRAIN: No, your -- MR. HANCOCK: -- dominate your time. CHAIRMAN STRAIN: -- points -- this whole process is about what you're doing and about what the HOA's and other people and the environmental community has come here and done. We have to understand this better. There's been way too many complaints and problems, and this is the only way to get to the bottom of it. It takes longer, but unfortunately that's what we've got to do. MR. HANCOCK: My next comment, and I'll try and wrap it up Page 67 October 2, 2008 into a single point, is under the gopher tortoise section, which is I believe on Page 145 of your packet. Starting with A. Rather than picking this apart, let me just explain. I have an issue with the fencing requirement and I have an issue with the water table elements in there, and I have an issue with the 25-acre size. And the reason is this: If you're going to relocate gopher tortoises either on-site or off-site, your permit has to address both the recipient site that is adequate in vegetation, that is adequate in size, that is appropriate. And that permit is issued in the state. And your permit also addresses how you must excavate the tortoises, which must be excavated and so forth. Some of the things stated in here are replicated from state law. We don't need that in our Land Development Code, because you have to go get the state permit anyway. Some of these things are beyond state law, such as the 25-acre size minimum. If I have a 10-acre preserve but it's right next to state-owned lands, this would preclude me from using that as a recipient side. It doesn't make sense. The state does this process -- the state reviews the process, the state issues the permits, and extraneous requirements in this section are just that, extraneous and unnecessary. I don't know if -- if we want to have our own gopher tortoise management plan for the county, then let's start that process. But it seems like we're almost squeezing that into this. And so my main issue is, you know, all of these elements we've discussed are reviewed by the state, permits are issued by the state. We just recently had Ray Ashton do a class down here for a couple of days and used my church as a classroom and actually used some of the tortoise relocation on our site as test cases to move them to a state approved recipient site, and it worked beautifully. That entire relocation would have been precluded by the changes proposed in this Page 68 October 2, 2008 section. My recommendation on that is go back to the original language. All the additionals about the -- and by the way, Mr. Sterk is here, he can attest, we excavated tortoises that were going down into the water table. They're not supposed to do that. And it was the dry season. So again, it's -- there's something in here that may be in a technical memorandum of guidance somewhere, but you put it in the Land Development Code, it's rule, it's law, it's inflexible. And what's written in here would preclude exactly what we just did, which is approved by the state. I will leave it at that on the gopher tortoise issues. I would recommend that these species specific issues in here not move forward the way they're written right now. The bald eagle issue is separate and apart. I understand you've had detailed discussion on that. But I don't believe this was intended to rewrite how we address gopher tortoises, but it truthfully does do that. And I will wrap up my comments on this section with that. CHAIRMAN STRAIN: Thank you, sir. Appreciate it. Nicole, I think you're next then. We're going to -- if we get too far into your issues and if you don't mind, we'd come back after lunch and continue. MS . RYAN: Sure. I'll keep my issues pretty general. For the record, Nicole Ryan, here on behalf of The Conservancy of Southwest Florida. And you had begun discussion of the GMP and how we deal with listed species. The Conservancy was very concerned with that GMP language. First of all, we felt that the county should have for certain species management plans, management guidelines such as we have for the gopher tortoise. And that was what we recommended, so that we would not every time be deferring to the state and federal agenCIes. Page 69 October 2,2008 That language was not approved by the BCC, therefore, we're stuck with staff really having no choice but to defer in every single case. So we do see that has being something that's problematic. So if we can get something in here that helps staff, that protects species and makes sure that you don't have cases where because the federal agencies may not do a review unless asked, that a species slipped through the cracks because there's not a wetland permit, we really want to make sure that there are no loopholes. To this LDC specifically: For the gopher tortoise, I know that staff is trying to come up to speed with the fact that tortoises have been uplisted, that Collier County has had tougher standards than the state standards in general, and so we want to get something in place that is going to make sure tortoises are protected, and that five years down the line those preserves are still functioning. We hear all the time yes, you had to preserve the tortoises on-site, but are they still there? Do they have a food supply? So we'd be happy to work with staff to find some language that may get us there. I agree, the 25-acre minimum site is going to keep some of these urban parcels, that if you have proper fencing you might be able to keep at least a small population on-site. From The Conservancy's experience, fencing is something that is really needed. Tortoises can go out in the road. They may not get hit, but they could get swept down the storm drains. That's another issue that you don't really think of. But just because you don't see them flattened on the road doesn't mean they're not being killed out there. So we would be happy to work with staff and other stakeholders to come up with some language that really captures what we want. As far as listed plant species, I think maybe what you had suggested, to essentially say what we want to do, which is if you have listed species on-site outside of the preserve, let's try to move those Page 70 October 2,2008 plants into the preserves. So if that can be simplified, we certainly would support that. Thank you. CHAIRMAN STRAIN: Thank you. And, you know, Bill, I would strongly encourage that you and your rewrite of this, you may be -- if Tim wouldn't mind meeting with you and Nicole and anybody else that points out some obviously (sic) concerns here today, why don't you get them together with you first before you come back? Because I think this panel as a whole has a lot of problems, too. And we'd rather come back with a better document rather than have to do this all over again. So are there any other public speakers in this matter? Bruce? MR. ANDERSON: For the record, my name's Bruce Anderson. Steve Lenberger brought up earlier a concern I had that was in the first sentence of Section 3.04.03. To make clear that just because one of those rare plants was located on the property, that that did not necessitate that that area be a preserve. And I just wanted to encourage you to include that. Thank you. CHAIRMAN STRAIN: Hopefully Steve got the message in the discussion. Thank you. Other public speakers? Jeremy, right? MR. STERK: Yes. For the record, Jeremy Sterk, Davidson Engineering. I'll just make a few comments. I guess specially on Page 143, 3.B. You know, it's titled first word, references. I mean, my suggestion there would be to put them on the website. I mean, it's very easy to put them on the Collier County website, if you have -- do you have gopher tortoise on your property, go here, here, here. The FW website -- the FWC website's very good in pointing you Page 71 October 2, 2008 what permits you need and what processes. So to me I don't see the need to put all these reference materials into Land Development Code when anybody who's got a computer can go on the Internet. Flipping over to Page 145, this was discussed a little bit. Under the gopher tortoise, A.5 with the management and monitoring and stuff. In all these monitoring references, there still is no reference to duration. Are we talking a year, are we talking five years, are we talking in perpetuity? I think that should be clarified. Because obviously that's a huge difference in expense for the applicant. On Page 146, under F, you know, we talked a lot about fences. I think -- I mean for me, with reference to fence on a case-by-case basis, I think every time I deal with gopher tortoise on a site I say to myself, boy, that's something I've never seen before. They're not supposed to be doing that, or they're not supposed to be here, or -- you know. So when dealing with a lot of these listed species, to me I would keep it in the context of a case-by-case basis. Let's see. And then in seven on 146, item seven, it says suitable habitat is defined in the habitat preservation management sections of the state gopher tortoise management plan. To me it should be period. Why are we relisting their gopher tortoise management plan? I mean, all these criteria are spelled out in there, what's habitat. And as Tim Hancock mentioned, you know, we have to pull these permits. These permits take months to get from the state. They're scrutinized heavily. We have to do vegetation inventories on the donor's site and on the recipient's site. So, you know, we're meeting state criteria and it's not an easy process. And then a big one is E. That acreage again. I think that should be a case-by-case basis. The -- Tim mentioned it. But the most recent gopher tortoise location I did was into a 12-acre habitat that was a donut hole in the Picayune Strand State Forest. It was done with DOF. Page 72 October 2, 2008 Everybody was happy to do it. It's one of the only places right now in the county that anybody has the option to put tortoise in. And under that, that wouldn't be -- that wouldn't meet the criteria. I don't know that the preserve that you mentioned, Mrs. Caron, the City ofN aples one, I don't -- that doesn't meet that criteria. COMMISSIONER CARON: I don't know how many acres it is. You're right. I have no idea. Wouldn't follow under our code anyway, so we don't care. (Laughter. ) MR. STERK: On 148, you know, there was a lot to say about the active, inactive and abandoned. I'll just tell you, in practice, consultants on the site, we dig every burrow. It's for -- you know, we go to every burrow, we dig it. Whether it's armadillo, whatever. And so I don't know that a lot needs to be made about that. But in practice in the field we dig them. CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: Jeremy, do you -- your best practice is what you're saying. I guess I would call it that. Do you believe everybody in your business does the same thing? MR. STERK: Honestly, I do, yeah. I mean, we're required by the state to resurvey the entire site for burrows immediately prior to the excavation. Because the tortoise -- the burrows do move occasionally. And so we -- you know, we've spent the time in the field. We spent the time looking for the burrows, and it's really not a big deal to -- you know, if it's an obviously abandoned burrow, it may just take a couple of digs and we'll have confirmed it, so -- One other comment. A lot was said about the Section 10 process, and kind of just tossing that around. That's a habitat conservation plan. And I can tell you, I've been working on the only one -- the first one in the country to deal with Florida panther in Collier County, and we're in year number four. So -- and, you know, so that's not something that's to Page 73 October 2, 2008 be taken lightly. That is a -- that's reviewed in Vero Beach, it goes to the regional office in Atlanta, and then it goes to DC for publication in the federal register. So that is not an easy process. COMMISSIONER MURRAY: Without divulging any confidential information, if that's appropriate, how much would you guess it will cost overall to do that? MR. STERK: Oh, man. I would imagine consultant's fees are probably several hunderd thousand dollars, just for consultant fees, much less the mitigation package and everything else that goes along with it. So in a real world situation -- I mean, I'm dealing right now with a landscape company that's relocating to another area of the county. They're in secondary panther habitat. There's an existing house on the property and, you know, the property's mostly cleared but it just happens to be mapped in secondary panther habitat. And where that, you know, tends to cause problems is that was done -- you know, they mapped all of south Florida, all the way almost up to Orlando. So, you know, that was done on a global scale with aerials and stuff like that. And again, it falls back to that kind of case-by-case basis. When we're forced to go ask for a letter on what's really now an existing residential site because this landscape company has a site development plan in, it puts us in that situation where if we can't force a letter, they're looking at an HCP. So it's just a really difficult situation to be In. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah, I don't think anybody was trying to minimize what a Section 10 consultation is. The point was how did we get there. MR. STERK: Right. COMMISSIONER CARON: Why did we get there. And we Page 74 October 2,2008 found that out. And so that was the good of that conversation and we'll now go forward from there. CHAIRMAN STRAIN: Thank you, sir. MR. STERK: Thank you. COMMISSIONER CARON: Sometimes you have to point out the absurd to get to the heart of the matter. CHAIRMAN STRAIN: Were there any other public speakers on this issue? Because if not, then we basically have ended our discussion -- yes, Susan? MS. MASON: I just had a couple comments I wanted to make on Page 147, 7.E. That 25-acre minimum only applies to off-site relocation sites, not if they're relocating something on-site. And I would also read it that it says a minimum of 25 acres of contiguous habitat with no physical obstacle. That if it's in the Picayune Strand, ownership an isn't an issue. It's is there habitat that the gopher tortoises can come back and forth for. So I don't know about that particular relocation at all. But if there's -- I think there's more than 25 acres of gopher tortoise habitat in the Picayune. CHAIRMAN STRAIN: I think overall, though, Susan, I understand you may have comments about individual pieces. I'm not sure -- I think we're beyond that at this point. I think what you need to do is, your department, if you could, try to get Tim Hancock and Nicole and Jeremy and anybody else that's been so interested in this, get their thoughts on some practical hands-on applications before you come back to us with a rewrite. I think that would be helpful for everybody. So with that, we will take a lunch break. Let's try to resume at 12:45. So it's 58 minutes. And we'll look forward to seeing you all then. Page 75 October 2, 2008 When we get back, we'll start with the next one on the agenda, Page 165. (Lunch recess.) CHAIRMAN STRAIN: Okay, everyone, welcome back from lunch. And just so we're clear on where we're going to go today, for the next two hours we'll continue on with the environmental portions of this LDC amendment. And then after that, at 3 :00, we will start working with Page 1, which is the utilities, and finish the day out with the rewrites that we got coming back to us. So -- and it looks like between 1 :00 and 3 :00 we probably won't get to anymore than the environmental. With that in mind, let's go on to Section 3.05.07, A and B. And it starts on Page 165. And the version that I think we are hopefully using is dated August 22nd, 2008. And that date will be on Page 166. And if you don't have it, apparently there's extra copies. So Steve, I'll -- looks like you're the target -- I mean, you're the presenter again. MR. LENBERGER: Thank you. This amendment deals with the native vegetation definition change in the compo plan, which is the first part of amendment on 166. And it also deals with defining criteria on how to apply the definition. Probably very important. Then it also -- a major component is the off-site native vegetation and retention alternative to the on-site preservation requirement that the county has. And there are some cleaning up as far as clarifying single-family setback requirements. So there would be an adjusting of where that's placed, as well as we relocated the exception subsection to the general standards criteria. Before we get into the amendment, I just want to discuss a couple Page 76 October 2,2008 things which will come up, if you just bear with me a moment. The first being on Page 167, the preservation requirement. Number one on top talks about it shall include all naturally including strata, including canopy, understory, ground cover, and emphasizing the largest contiguous area possible. The language possible was taken out. But then we started clarifying for disturbed sites, and we've had a few issues. We had one paragraph dealing with disturbance and percent canopy closure of the trees and shrubs that are left on-site. And the paragraph below that deals with herbaceous weedy type vegetation, really not typical of normal plant succession on a natural plant community. Particularly that last one, herbaceous weedy rootle (phonetic) vegetation came at the request of the development community, because there really is not the intent to regulate this weedy type artificial environment, so we wanted to clarify that in the amendment. F or the disturbed sites where soil disturbance has occurred but there's still native trees and shrubs, this has been an issue for a while. And what exactly should be claimed as native vegetation. Staff wrestled with this idea, and we went to the Florida Department of Transportation -- hang on a second. We looked to the Florida Department of Transportation FLUCCS map, which identifies all the different habitat types. And I'm sure you're all familiar with this. And in that it defines native forested communities as having a minimum of a 10 percent canopy coverage. And so that's the baseline we started with. Then if you look at some of these sites -- and I just want to show these -- we started looking at properties that were partially cleared, particularly old agricultural areas. And yet you'll have a number of native trees. Now, this particular site, some of it's native, some of it isn't, but it's just an example to show you that there's different areas with Page 77 October 2, 2008 different massive canopy coverage. And that's what this clarification is trying to deal with. We've been through different stakeholders, we've been through EAC, DSAC, which have reviewed this language. But that issue of what percent canopy closure may be -- come up during discussion today. I'm just bringing it to your attention. CHAIRMAN STRAIN: Okay. MR. LENBERGER: I have additional language to add on one of the amendments on Page 168. CHAIRMAN STRAIN: Mr. Midney, did you have a question? COMMISSIONER MIDNEY: On 167 -- how are we doing this? CHAIRMAN STRAIN: We're waiting for his presentation to get done -- COMMISSIONER MIDNEY: Yeah, that's fine. CHAIRMAN STRAIN: -- before we -- MR. LENBERGER: And then we'll go back page by page, I would assume -- CHAIRMAN STRAIN: Yes. MR. LENBERGER: -- the way we've done it before. Okay. CHAIRMAN STRAIN: Go ahead. MR. LENBERGER: On 168 there's a redevelopment and expanded sites. And it's at the bottom. And it continues on the next page. Well, that first one, A, within the boundaries of an original site requesting redevelopment, we added language to -- well, staff has added language to address properties which were cleared prior to '89 when there was an actual percent preservation requirement. So it's kind of like a vesting type thing. So we added some language there for your consideration as well. That's basically what I had to go through. Or you can go page by page, and I'm sure there will be plenty of discussion. Page 78 October 2, 2008 CHAIRMAN STRAIN: Okay. Well, let's go back to our page-by-page process. And the introductory Page 165 and 166, any questions on those two pages? Ms. Caron? COMMISSIONER CARON: Under the definition, should we just be restating the GMP language under definition? CHAIRMAN STRAIN: Yeah, put it back up there. MR. LENBERGER: I believe we are. We took a 25 percent or more canopy coverage. You want to-- COMMISSIONER CARON: I thought we were using exact language. CHAIRMAN STRAIN: Yeah, that's a good point. Why would we change it, Steve? MR. LENBERGER: We can word it the same, if you want. COMMISSIONER CARON: You just need to cut and paste on some of these things. And that would be an example of that. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Do you not know why you changed it? MR. LENBERGER: I worded it to fit into the paragraph here. It's been a long time since I wrote this, you'll have to excuse me. COMMISSIONER MURRAY: Okay, sure, yeah. MR. LENBERGER: But the intent is just to follow the compo plan. I could use the language rather than the compo plan, that's not a problem. COMMISSIONER MURRAY: You don't recall -- okay. MR. LENBERGER: Exact details -- COMMISSIONER MURRAY: You might very well have a very good reason that you have done it. MR. LENBERGER: You know, I dealt with a lot of amendments this cycle so -- Page 79 October 2, 2008 COMMISSIONER MURRAY: I appreciate that. MR. LENBERGER: -- I don't remember everything. COMMISSIONER CARON: And seriously, if there's not, then we should just, you know, cut and paste -- MR. LENBERGER: That's fine. COMMISSIONER CARON: -- the exact language. If there's a real reason to change it into LD code-ish language or something. I don't know what the reason would be, but we may as well keep it simple. CHAIRMAN STRAIN: Steve, while we're on Page 166, I received an e-mail from Tim Hall. He had a series of questions that he -- he couldn't be here today. And I want to make sure that his questions, if they're -- we at least try to respond. On that particular item he said that the definition should make allowances for maintained areas. And then it says, under the definition of mowed yard with 25 percent of tree coverage would be counted as native vegetation, yet would not count as a valid preserve, according to the preserve criteria in the following page, because it does not contain all naturally occurring strata. Mowed or otherwise maintained areas should not be included in this definition. What is staffs -- what would staff has as a response to that? MR. LENBERGER: The definition in the GMP deals with highest existing strata. So it would be considered native by definition. A mowed understory wouldn't be the highest existing strata. It would look to the trees or shrubs, whatever the case may be. CHAIRMAN STRAIN: But if you had a canopy of25 percent tree coverage -- just that part, 25 percent tree coverage canopy -- then it would be counted as native vegetation. So what happens to the way that area would be treated then in regards to a continuation of lawns, mowing or whatever they would do on the ground level? Any problems with that? Page 80 October 2,2008 MR. LENBERGER: It would -- well, according to the GMP definition, it's native habitat. Native vegetation, according to the definition of the GMP. The code language is trying to -- written to explain or clarify what is meant by that. And that's when we look to, well, what kind of canopy coverage should we be utilizing. And we really didn't have any answers. And we went to the FDOT FLUCCS guidelines, because they've spelled it out as a minimum of 10 percent canopy closure. The issue is far from resolved. We've had this issue come up before, what percent canopy coverage would constitute native vegetation. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Well, but these are supposed to be preserve standards, right? MR. LENBERGER: Preservation standards. COMMISSIONER CARON: Okay. So not preserves but just preservation. MS. MASON: It's -- this first part is helping-- COMMISSIONER CARON: Right. MS. MASON: -- is how you calculate the amount of native vegetation that exists. And then once you reach an acreage, you have a percent that you have to retain and then you categorize based on the quality of habitat, as required. CHAIRMAN STRAIN: Well, look at the corner of -- the northwest corner of Estey and Airport Road. That proj ect came before us. It's got natural canopy, good canopy, big trees, and entirely mowed grassy areas underneath. When they go to develop that property, how much of that property are you going to -- you already have it. Well, that's interesting. How much of that property are you going to claim is native Page 81 October 2, 2008 vegetation? And based on what, strictly the canopy, or the entire value of, let's say, all the vegetation from the ground up? MR. LENBERGER: Presently the GMP defines it by highest existing strata. CHAIRMAN STRAIN: Highest, meaning highest in the air? MR. LENBERGER: That's correct. Canopy coverage. MS. MASON: Right. If it's a treed habitat, like a pine flatwoods versus a marsh, where a marsh is -- a marsh might have some shrubs, but really it's all going to be herbaceous. And if an occasional tree has popped up, melaleuca or whatever, that doesn't make it its canopy. It's canopy is the marsh, because that's what's naturally occurring. And I believe that was kind of the discussion with that addition with naturally occurring canopy coverage, because of what was originally there, or what belongs there and not an occasional other speCIes. CHAIRMAN STRAIN: So when you take -- on this particular site, when you decide what is natural preserved areas, because of the canopy coverage of the top trees, even though underneath is not natural at all, it's all mowed green grass, you're going to say the whole site qualifies for native vegetation preservation standards and you're going to use a percentage based on the whole site then; is that -- assuming the whole site has got that canopy coverage that you're talking about, which it kind of looks like. So is that the way you're looking at this? MS. MASON: That's the way it's been applied, yes. And there are areas in there -- I know an evaluation was done on this site, not by me, but I know areas were excluded because they were considered open enough. But that was really part of the reason that Steve was talking about trying to clarify how open is too open. Where do you draw the line? And that's what-- CHAIRMAN STRAIN: But don't you think there are other Page 82 October 2, 2008 factors involving maintenance that is unnatural that occur at the ground level? I mean, when you've got a site like this that obviously -- well, the canopy is there because it's nice to save those big trees, they're being penalized because they mowed the lawn. I don't understand how that -- how is that practical? This doesn't -- I don't understand how you can have that application. Could you put the GMP language back up here? Wow. So when this was adopted into the GMP, I don't think anybody at least on this -- myself. I can't speak for the rest of us. But I certainly didn't expect that it would apply to an area that just because they're growing native trees high up in the air everything they do on the ground now is penalized because of that. So the best they could have done is bulldozed everything down so they didn't have this canopy coverage and made it worse than it is today. This isn't a practical of the CCME policy. I don't know what we can do about it, but it looks like we're -- at least I feel I was misled at the time this particular policy came into discussion. Because it -- it doesn't make sense. MS. MASON: The former CCME policy was really just written backwards from this. Instead of this one saying 25 percent or more canopy coverage, it used to say 75 percent or less canopy coverage, which really is the same thing. If there was 25 percent of the canopy of whatever that top level was, whether it was trees or a midstory canopy or just ground cover, it was -- it's the same application. It's just a backwards way of -- or different way of wording it. But it -- this site, that SD site that was up on there, was evaluated, I believe, under the other -- the 75 percent or less wording, but it still gets you the same place, because you're still looking at the tree canopy and you're still looking to see if there's at least 25 percent Page 83 October 2,2008 of what's in your canopy is native, or that there's no more than 75 percent exotics in the canopy. CHAIRMAN STRAIN: Right now I don't know what we can do about that, but I'm not done thinking about it myself. Mr. Midney? COMMISSIONER MIDNEY: Well, no, I'm on 167. CHAIRMAN STRAIN: We're going to skip that. We're going to go right straight to 168. I think we're going to be coming back to that definition. I want some time to look at it. COMMISSIONER MIDNEY: Actually, it's kind of related to this point. CHAIRMAN STRAIN: Let's go to 167. COMMISSIONER MIDNEY: On 166 you're saying that if it's natural soil, in other words, the soil has not been disturbed, you require -- if25 percent of it is natural canopy, then it's considered to be native, eligible for a preserve. But if it's disturbed soil, on 167, you only require 10 percent native canopy. So in other words, if you had 10 percent pine trees and 90 percent melaleuca, but if the soil had been disturbed, then that would still be something that would be considered native vegetation. It seems backwards. Because if the soil is disturbed, I would think you would want to have a higher percentage of canopy being native in order for it to be considered native. Because you've disturbed everything at the lower level. You're not going to get any natural strata. And that kind of relates to Mark's point about cut grass. Which I think, you know, in order to establish a lawn, you pretty much have to disturb the soil. CHAIRMAN STRAIN: Good point. Does that -- is that another way of looking at it? I mean, obviously it is. But how does that help us with the definition, and what Page 84 October 2, 2008 is considered native in a case like like that example on Estey and Airport Road? You're looking at me. I don't have an answer, so I'm looking at you. MR. LENBERGER: I'm not looking at you, I'm thinking how to address this. It says 25 percent or more naturally occurring canopy coverage of highest existing vegetative strata. We use 10 percent as a baseline for disturbed soil. CHAIRMAN STRAIN: Well, if it's 10 percent, then it can't be 25. MR. LENBERGER: What would you think would be native? What do you think should be considered native in a situation like that? We're open to ideas on addressing this issue. It's been a long-standing Issue. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I don't remember the absolute outcome, but I do remember pretty much the conversation we had about that very property . We spoke about, you know, the upper story, the midstory and the ground cover. Now, since you had that document, did you bother looking to see how we concluded what the determinations were made? Because we did make some stipulations. Were those stipulations relative to what you're bringing before us, or were they exceptions to that concept? Do we know? Or did you reference them in any way? Because interestingly, you brought this one out. And that happened to be a very good, very good example of the problem of disturbed soils, yet having good quality overstory. You didn't get that far, right? MR. LENBERGER: I did not -- I wasn't aware that you had heard a petition on that project. COMMISSIONER MURRAY: Oh, yeah, we had a navigation Page 85 October 2, 2008 agreement and everything. We went through the whole magilla on that. And we went ahead and that was approved by the BCC. And it had our stipulations in it. I don't remember what the stips were. CHAIRMAN STRAIN: I don't either. It's been a while. COMMISSIONER MURRAY: But it certainly would have been important to relate to. Because the question then is, you know, what position did we take, what position are you taking. Maybe you might look that up at some point. CHAIRMAN STRAIN: Mr. Midney? COMMISSIONER MIDNEY: It seems to me that there's three levels to the plant cover the way we're looking at it: The groundcover, the mid-level and the canopy. If you've only got the canopy that's intact and the mid-level and the ground level are disturbed, it seems that you have a much less valuable piece of property environmentally. So maybe what you should do is quantify, okay, how much of the canopy is good, how much of the mid-level, how much of the ground level, and use that as a way of categorizing it as valuable, worth preservation or not. Because if you've only got a few trees in the top, it doesn't seem like it's really environmentally valuable land. CHAIRMAN STRAIN: Steve, that's a good point. And what Paul's saying is you'd qualify it as native vegetation because of the canopy. But if you've got other levels of strata that are missing so that all the way down to the ground level it's not natural or not as it should be, then you have a different level of preservation needed for the amount of strata missing or layers of strata missing, and that would compensate for the fact that the upper canopy is native and qualifies as native, but the percentage of preservation would change based on the amount of strata left at each level. Is that -- Mr. Klatzkow? Page 86 October 2, 2008 MR. KLATZKOW: Makes all the sense in the world, but that's not what your CCME policy says. COMMISSIONER VIGLIOTTI: That's the problem. CHAIRMAN STRAIN: Well, but it says that it would qualify as the existing native plant species, native vegetation. But then how we treat the native vegetation on a percentage-wise is up to the implementation of the LDC, isn't it? And if the implementation process, where -- does it tell us in the GMP -- and I obviously haven't got it in front of me -- how much percentages are allocated to each? MS. MASON : Yes. Based on the size of the site and what type of development, whether it's mixed use or industrial, it does specify percentages that are minimum requirements. CHAIRMAN STRAIN: Well, then how does the -- MS. MASON: There might be some ability in the ranking. And this is 100 percent me talking off of my -- just thinking about it. When the ranking -- in the GMP and the LDC where it talks about how we select the preserves, there may be some room in there to get more specific with -- as you go down, if there's better of the same habitat, that that would be higher -- that we would be able to choose that. Because sometimes we can't, based on the LDC rules. But that would be more in the ranking on the site, but it couldn't change the percent requirement. CHAIRMAN STRAIN: Mr. Lorenz? MR. LORENZ: Yeah, maybe coming off of some of the discussion here, the ranking system talks about dry prairie, pine flatwoods, and then the last ranking is all other native habitats. And I'm wondering whether to go -- to be consistent with the GMP that we can maybe define where we have some soil disturbance or ground cover as being some type of -- it's a hybrid other native habitat, so to speak. It's mixed. Page 87 October 2, 2008 I'm not sure whether that could be helpful, but we'd want to try to be as -- obviously we've got to be consistent with the GMP. CHAIRMAN STRAIN: I think if we could recognize the fact that the different strata missing contribute more positively or negatively to the native vegetation definition and tie it to that, that might be a way to resolve it. We ought to certainly look at that, because -- MR. LORENZ: Right. Well, we'll try to take a look at that. A little bit in answer to your question about the Estey Avenue. I can't remember exactly what we came up with, but there was an analysis around certain portions of that site that we did qualify as, quote, native vegetation, based upon the highest canopy. A little bit of the -- there's two issues that exist there: One issue is, is the understory the mowed property. The second issue is the canopy coverage, how sparse is it? So when you're thinking about this, you have to think about those two issues also. CHAIRMAN STRAIN: Well, Mr. Anderson's in the audience, and since he was the annoying -- I mean, the attorney that came forward and made the issue happen, Bruce, do you have a minute to tell us how we ended up defining native vegetation on that Estey and Airport Road site? COMMISSIONER CARON: He may not remember. CHAIRMAN STRAIN: Unless, you know, you can't remember things. But then that will classify you as elderly and you wouldn't want to be there. MR. ANDERSON: Okay. Given those choices, I don't want to tell you. CHAIRMAN STRAIN: I was giving you incentive. MR. ANDERSON: My general recollection is that what was cleared and looked like a football field with a couple of trees on it Page 88 October 2,2008 suddenly became native vegetation that needed to be preserved. And they had a clearing permit and everything. And it was, you know, really a ridiculous application of the requirements. CHAIRMAN STRAIN: So they ended up being penalized, because then when they got the clearing permit they left the trees up. MR. ANDERSON: Yes, yes. MS. MASON: My recollection of the clearing permit was it was an exotics vegetation removal permit and it was not a clearing permit for anything else. Do you happen to know the name of that project? I'm trying to find the staff report or something. MR. ANDERSON: Meridian Village, I believe. CHAIRMAN STRAIN: Okay. Thank you, Bruce, that helps. Well, I think you understand where our concern is and the definition and how it applies to non-native strata, all the way to the ground. And if you could figure out some solution to that. We haven't got one here today, but I think that needs to be focused on. At the same time, though, on 166.A, it says general standards and criteria. The following criteria shall be used to administer the preservation standards in all unincorporated areas of the county. Well, then if that's the case, and the definition is for 25 percent or more, how do we fit that second paragraph in? And this was a question Tim Hall had asked as well. How do we all of a sudden have 10 percent or more qualify as native plant species? And I think that may need to be addressed. And I had circled and Tim had noted as well that in the next -- MR. LENBERGER: Could I answer that? CHAIRMAN STRAIN: Go ahead. MR. LENBERGER: It's the sparsity of the site, not the percent of canopy coverage. COMMISSIONER MURRAY: The what? Sparsity of the site? Page 89 October 2, 2008 COMMISSIONER CARON: Say that again? MR. LENBERGER: The 10 percent is the amount of coverage of the total area, not the percent of the canopy coverage. CHAIRMAN STRAIN: What's the -- MR. LENBERGER: You have 25 percent. You have an area of canopy coverage, say 80 percent of forested area and the rest is open. And a certain percentage of that is melaleuca and a certain percentage of that is native. That's the percent canopy coverage. This is talking about the percent of the total area of the site. COMMISSIONER MURRAY: Which would include canopy, midstory -- CHAIRMAN STRAIN: Mr. Murray, you have to use your mic. MR. LENBERGER: We're not talking vertical, we're talking horizontal. COMMISSIONER CARON: That's not what it says. CHAIRMAN STRAIN: No, I'm not getting it either. Steve, let's go -- the definition says 25 percent more natural occurring canopy. So that means if you have pine trees and they got canopies and they're 25 percent more of some grid, then it's natural. MR. LENBERGER: Right. CHAIRMAN STRAIN: One -- the paragraph that we're talking about says 10 percent more of canopy closure. MR. LENBERGER: Closure. CHAIRMAN STRAIN: Okay, well, that's -- what's the difference between 25 percent more naturally occurring canopy or 10 percent or more canopy closure? I mean, it's the same thing. Isn't a canopy close something (sic)? Otherwise, what is it? MR. LENBERGER: That's because the 25 percent definition is 25 percent of the existing canopy strata. So it's whatever -- it doesn't necessarily mean it's the entire site. It's whatever portion of that site is vegetated with that highest existing strata, the canopy. Page 90 October 2,2008 The 10 percent is dealing with the entire site, whether it has any canopy or not, okay, or sparse canopy. It's dealing with the closure of the entire strata level, not the percentage of trees in the area, native or non-native. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Okay, put up the Estey site again. CHAIRMAN STRAIN: I'm lost. COMMISSIONER CARON: Well, I'm going to try to see if I understand it or not. I don't know. So in order for you to determine the native vegetation on this site, you're telling us that -- and let's just assume all these trees are native -- you need to set aside 25 percent of it, right? COMMISSIONER SCHIFFER: No. COMMISSIONER CARON: Will qualify as -- to qualify for your preserve. MR. LENBERGER: There are open areas on the site, I think it was already brought out, that weren't included. And it -- COMMISSIONER CARON: Doesn't matter where it is, just somewhere you've got to get to 25 percent, right? MR. LENBERGER: Yes. You have 25 percent canopy coverage of the area. There's no exotics here in this case that I know of, unless staff can correct me. Like I said, I wasn't involved on this particular project, so I can't give you the specifics. But I can tell you this: If you look at the whole site, let's just assume it's all native, and I believe most of it is native, that it's 25 percent. CHAIRMAN STRAIN: Steve, I've been in different meetings and I've watched you make presentations, not just here but the HOA's. And every time you come across to people, you seem to have a practical way of explaining it. We're finding out today that you've not written most of these. Page 91 October 2, 2008 And I can understand that. But couldn't you rewrite them? I mean, this isn't -- we're going to be beating these things up for days, knowing that the intent here might have been to put things in that were unintentionally known to everybody. And I think the process we're trying to get to is we want it straight, open, clear, so that anybody picking up this book can read it and try to understand basically what it means, instead of all these deals we've got to go through to try to figure out what it means. And we're the group that deals with this more than most people in the county. MR. LENBERGER: We'll take your input and -- but clarification would mean expanding upon the GMP language in the vegetation definition. CHAIRMAN STRAIN: No, no. MR. LENBERGER: No? CHAIRMAN STRAIN: No, clarification of the paragraphs we're talking about, just rewrite them so that we can understand them. Give us an example. Put this one on here and show us how it applies in an example. And maybe make a graphic for the code like we have in other parts of the code when we're trying the architectural, something so that somebody can understand what it is you're trying to say here. I don't know if I -- does anybody here understand it? Brad? COMMISSIONER SCHIFFER: No, I don't, but -- COMMISSIONER MIDNEY: I don't understand it. COMMISSIONER SCHIFFER: -- I have a question. Steve, if you look in the definition, it says natural occurring canopy coverage or highest existing vegetative strata. On this other paragraph it's saying 10 percent or more canopy closure of highest existing. And even in the vegetation, when you've read that every now and then, you've changed that" or" to be an "of". Is that where we're getting hung up on, or -- Page 92 October 2, 2008 MR. LENBERGER: We need to clarify it. COMMISSIONER SCHIFFER: Okay. And highest really does mean the height. I thought that there was a way we were ranking vegetation and the highest meant that. COMMISSIONER VIGLIOTTI: Yeah, that's what I thought, too. COMMISSIONER CARON: Me, too. CHAIRMAN STRAIN: Physically highest, tallest. MR. LENBERGER: Tallest. CHAIRMAN STRAIN: Say the word tallest. COMMISSIONER SCHIFFER: Yeah, you really should. Because we do rank vegetation, don't we? Don't we have a way -- so I mean to me that's what that always meant. It never meant the actual height. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: And if I -- and I'm treading down here carefully . But looking down on this particular picture, and I'll tell you what went through my mind as I thought you were trying to express it to us, on the 10 percent thing I'm visualizing that you might go with a red pen or whatever and you would take those sparse areas and you would extract them. MR. LORENZ: Yes. COMMISSIONER MURRAY: Oh, I got it right, what do you know. You'd extract them and then you'd total up the balance and then the 10 percent is applicable based on that; is that right? Where did I leave you off now? We got half of it right -- I got half of it correct? MR. LENBERGER: Drawing the area around the group of trees is where the 10 percent applies. COMMISSIONER MURRAY: I think I may have said it a different way than you, but I think I'm -- let me verify that. We've extracted the bare spots. Page 93 October 2, 2008 MR. LENBERGER: That's correct. COMMISSIONER MURRAY: Okay. So now we have left this area that's filled with trees. MR. LENBERGER: With a certain amount of canopy coverage. COMMISSIONER MURRAY: So now that's the 10 percent. We want to qualify through that with the 10 percent. MR. LENBERGER: No, the 10 percent, whether it's 10, 30 percent, I'm just throwing out numbers here, whatever percent you're going to define, those are the areas you draw the lines around and say you're going to look at those areas. And that's where your preservation requirement will be based upon. COMMISSIONER MURRAY: Well, that sounds logical from the way you just expressed it. But I hope you can put it in better language than that. Thank you. CHAIRMAN STRAIN: Well, Steve, when you're rewriting, that second underlined paragraph where it talks about highly disturbed and severely altered. MR. LENBERGER: Yes. CHAIRMAN STRAIN: I mean, what's highly and what's severely? So those ambiguous terms ought to be ferreted out, clarified. So I think at this point you're just going to have to come back with a rewrite of that section that somehow reads so that the average person can understand it. Page 168. Questions on Page 168? (No response.) CHAIRMAN STRAIN: Under number six where the vegetation has been illegally cleared, the amount of native vegetation used to calculate the preservation requirements will be that amount present at the time prior to the illegal clearing. I'm trying to understand, is that -- let me read the paragraph I got from Tim Hall. Page 94 October 2, 2008 COMMISSIONER CARON: Wait-- CHAIRMAN STRAIN: Go ahead. COMMISSIONER CARON: -- a minute. Were you reading from six? CHAIRMAN STRAIN: Six, yeah. COMMISSIONER CARON: Well, it's legal, not illegal. And-- COMMISSIONER MURRAY: That's not the six I have. CHAIRMAN STRAIN: Oh, mine says illegally cleared. COMMISSIONER SCHIFFER: No, go further in. It's illegal. COMMISSIONER MURRAY: Mine's dated 8/22/08. COMMISSIONER CARON: It says, where vegetation has been legally cleared, the amount of native -- CHAIRMAN STRAIN: Mine says illegally. COMMISSIONER KOLFLAT: Mine says illegally too. COMMISSIONER MURRAY: It starts out with legally and then CHAIRMAN STRAIN: No, number six, the fourth line starts with a paragraph, where vegetation. And mine says illegally cleared. COMMISSIONER CARON: Mine says legally. COMMISSIONER SCHIFFER: They're reading the first sentence, Mark, not the fourth sentence. CHAIRMAN STRAIN: Okay, let's go back to the fourth sentence. COMMISSIONER CARON: Oh, all right, okay. Down to the fourth. Okay, all right, that says illegally. I'm sorry, I thought you were starting at the top, and I was going wait a minute, how did that -- COMMISSIONER MURRAY: That's what I thought, too. COMMISSIONER SCHIFFER: Can I ask a question? CHAIRMAN STRAIN: Go ahead, Brad. COMMISSIONER SCHIFFER: And since you kind of brought Page 95 October 2, 2008 this to 1989 as the threshold of the grandfather date, how does somebody go back and prove -- they've just got to find some aerial or something to prove that this was cleared prior to '89, thus anything prior to '89 would be considered legally cleared? MR. LENBERGER: Yes. Under the ago section, and some of that stuff is listed in iii below. Some of that was taken out of the Section 10.02.06 of the LDC. COMMISSIONER SCHIFFER: Okay. I see, thank you. CHAIRMAN STRAIN: Does that paragraph in six pertain to the amount of native vegetation, based on what was present at the current or the original D.O. or the petition, or what? MR. LENBERGER: Okay, you're reading the first paragraph on six, is that what you're -- CHAIRMAN STRAIN: Yes. At the time of development order or land use petition. Is that the original one or modification? MR. LENBERGER: Vegetation has been legally cleared, the amount of native vegetation used to calculate the preservation requirement will be that amount present at the time of development order or land use petition application. CHAIRMAN STRAIN: And let's think of that -- MR. LENBERGER: If it was legally cleared it would be amount present at the time you're coming in with your application. CHAIRMAN STRAIN: But what if there's a Youth Haven down off -- the other part of the county. Their existing parcel was six or so acres or whatever, and they bought a parcel next to them in which they wanted to expand. When they came in, or when they come in, or however their process is, will they have to have the native vegetation requirement on today's standards for the entire six plus two, or just today's standards for two and whatever the standard was for the six at the time it was Page 96 October 2, 2008 developed? And I think that's the kind of question we're trying to get to here. MR. LENBERGER: I can't answer the specific project-- CHAIRMAN STRAIN: I know, but just as an example. MR. LENBERGER: Okay. The preservation percent requirement would be in the total aggregate of the site. So whatever parcels you're putting together, the percent requirement is based on the total aggregate. CHAIRMAN STRAIN: But the percent keeps increasing, or has increased. And what happens is if you're -- 20 or 30 years ago you had a 10 percent requirement on a six-acre site that's .6 acres. Now all of a sudden you expand your site by two acres, but the percentage of preservation has gone up over the years to 30 percent, so now you've got to have 30 percent of eight acres, which is more than compensating -- overly compensating for what you originally had a development order for. That's what I think -- MR. LENBERGER: Okay. Well, we have the vesting language I talked about for the other section. The preservation amount became fixed for commercial and other type developments other than residential and mixed use in the mid to late Nineties, and that was direction we received from the Board of County Commissioners, right about the time the Sports Authority went in on Pine Ridge Road. So it did go up once. It became a fixed amount. It used to be an appropriate amount, but it went up once. I can't say it keeps going up. It went up once. Direction to clarify that a fixed percentage for certain projects, and that was at the direction of the board. CHAIRMAN STRAIN: I understand, that's fine. Whether it goes up once or 10 times, it's still the same application. If you came in 30 years ago or 20 years ago and you've got permission to do a certain thing on the parcel and you want to expand and you bring in your new Page 97 October 2, 2008 piece, which is smaller, but the percentage now is fixed at a higher rate so that almost the entire new piece that you want to bring in can't be used, is that the intent of six is to catch that, or should we be looking at vesting those previously developed sites for what they were vested for when they were first done and only weigh the new on the new section? MS. MASON: Six is designed for new developments. If you see seven, it precedes with redevelopment and expanded sites. Six is if it's the first time it's coming in from review. Maybe switching in from ago use or just a vacant piece of land. CHAIRMAN STRAIN: Okay. So then we go to six. But if you have a redevelopment site or an expanded site, what valuation do you use for your percentage of native vegetation then? Say it's an expanded site like the example I cited. MR. LENBERGER: And I believe we have it here on Page 169. CHAIRMAN STRAIN: Okay. MR. LENBERGER: Hang on, I have to find it. Just give me a second. Okay, it's B. On 169.B. That's where it talks about the percentage. Within the boundaries of a site requesting development which includes an expansion of the site, the preserve requirement percentage shall be based on the total combined acreage of the whole site. CHAIRMAN STRAIN: Right. Which is exactly what I've been -- MR. LENBERGER: And I think what you're saying is that the developed portion of the site should be vested. And that was the language that we have on the visualizer. We could include language here. I'm not arguing with your point. CHAIRMAN STRAIN: No, I understand. But that's what I'm trying to get to. So this language here was the one that would then respond to my question in yellow? Page 98 October 2,2008 MS. MASON: Right. I think what -- and staff, I think when we were looking this over, what we wanted it to say would be say the original development had 10 percent requirement, but the expansion would kick it up into the 15 percent for that portion of what's added, it would be 15 percent. But it wouldn't require an additional five percent from the first part. CHAIRMAN STRAIN: That's what I was getting at. MS. MASON: That's what we were trying to get at, too. CHAIRMAN STRAIN: Okay. Then that's why you added the language that we have there. Okay, and I notice in that language you've got 1989 as the date. 6.A.ii looks like -- is '93 the date? Which date is the date? On Page 168, 6.A.ii. MR. LENBERGER: Oh, ii on 168. Okay, that's the ago clearing. CHAIRMAN STRAIN: Right. That's just for ago clearing? MR. LENBERGER: Permit to clear vegetation for agricultural purposes prior to 1993 remains clear. Right, that's the ago MS. MASON: It's because of the rezone 10-year limit that was switched to 25 for new ones. M~. LENBERGER: Right, the rezone limitation. CHAIRMAN STRAIN: Why don't you just put years instead of dates? Why don't you say if it was cleared prior years. Is there a reason we just don't look at that? If it was '93 as one of the dates, so that's what, 15 years? Is there anything cleared prior 15 years that applies? COMMISSIONER MURRAY: Yeah, but Mark, if you're reading that, wouldn't two years later you'd be at a phase with when -- MS. MASON: Yeah, we did -- I think it was because 2003 was when the Growth Management Plan changes went into effect. So they -- and that's when it switched from 10 years to 25. So we just went Page 99 October 2, 2008 backwards and put that in there so no one would be doubtful when that time period started. Rather than 10 -- I think originally it said 10 years prior to 2003, and that seemed confusing. CHAIRMAN STRAIN: Okay. We're on Page 168.iii -- A.iii. Demonstrations of continuous bona fide agricultural activities shall include agricultural classifications. Wouldn't that be may as example include? Because you're not saying that's the only one. I notice Bill's shaking his head yes, so -- and then the next one would be shall be supported by dated aerial and may be supported. Regardless, you're looking for support. You don't care what the support is, as long as it's genuine. And some of those words -- may would allow flexibility in what support you can consider. And you may find that there are a lot of items out there they hadn't thought of, so -- And then this sworn testimony from previous owners which positively establishes the commencement date. How positive is positively? I mean, how do you tell if someone's telling you something, how do you know it's not positively? So I don't know if that's the right qualifying word for someone's testimony. Maybe an affidavit or -- well, it says sworn testimony. So if they're giving you sworn testimony, that's it. . COMMISSIONER MURRAY: Why don't you just delete the word positively? CHAIRMAN STRAIN: Right. That's what I'm suggesting. Ms. Caron, did you have something? MR. LENBERGER: The word positively was taken from the Section 10.02.6. That's where it came from. But we can delete it; that's not a problem. CHAIRMAN STRAIN: Okay. Did you have something? COMMISSIONER CARON: No. I'm fine, no. Page 100 October 2, 2008 CHAIRMAN STRAIN: Well, let's jump over to 169. Any questions on 169? (No response.) CHAIRMAN STRAIN: On the top where you say native vegetation acreage existing at the time of the original site development. What if it was previously cleared, does that -- meaning it grew back. Does that make any difference? Or are we still back to those time frames of '93 and '89? I'm just looking for an answer. MR. LENBERGER: Original site development. You're talking 7.A? CHAIRMAN STRAIN: Right. MR. LENBERGER: Amount of acreage existing at the time of original site development. CHAIRMAN STRAIN: Does that mean back before any clearing was ever done on the site? Before it was agricultural usage on the site? MR. LENBERGER: At the time -- whatever was determined at the time of initial application. CHAIRMAN STRAIN: Okay, what if you have a site that had ago on it and it's been since revegetated, would that have any -- would the ago have any consideration, the ago use, the prior ago use that cleared the site? MR. LENBERGER: That's the other issue. What this is saying is that whatever determination you make at the time of your initial application for development, that's what it's based on. N ow you're going before that and determining that up to that point. And that's the other sections of the code we're trying to deal with here on 6.A., where it talks about the ago So there are two different-- six comes first. CHAIRMAN STRAIN: I wish this wasn't so hard, Steve. Ijust wish this language was plainer, but -- the next paragraph, if the Page 101 October 2, 2008 preserve requirement is less than the acreage of remaining native vegetation on-site, then the preserve selection shall be based on the current -- and you say preservation standards. Shouldn't it be based on the amount of native vegetation? MR. LENBERGER: Go ahead. MS. MASON: That is really more the ranking that -- the current preservation ranking standards. The problem with -- we did look it up, and the chart in the LDC and I believe also in the GMP just referred to it as preservation standards. But that's really what it's referring to, that if there's -- you come up with an acreage, and then you have to -- they would follow the same ranking as anyone else. CHAIRMAN STRAIN: Couldn't we put in the ranking pursuant to LDC section whatever? Is there something wrong? I mean that just leads -- COMMISSIONER MURRAY: No, that makes sense. CHAIRMAN STRAIN: That just gets us to where we know what to refer to. Then you have Page 169. Under C, in no case shall an existing or expanded site become more nonconforming with regards to native vegetation retention requirements. Tim Hall had noted is it to be assumed that it's nonconforming to begin with? So it wouldn't be that if an existing or expanded site is nonconforming then it shall not become more nonconforming. Wouldn't that -- okay? COMMISSIONER MURRAY: No further degradation might have been what they're intending. CHAIRMAN STRAIN: Yeah. COMMISSIONER MURRAY: Does that work, no further degradation? CHAIRMAN STRAIN: It gets to the same point of whatever the staff -- yeah. Page 102 October 2,2008 COMMISSIONER MURRAY: Yeah. I mean, it's circular. But there is a nuance. CHAIRMAN STRAIN: Page 170, anybody on Page 170? (No response.) CHAIRMAN STRAIN: Page 171. Ms. Caron? COMMISSIONER CARON: Why are we exempting essential services? CHAIRMAN STRAIN: It's the government. COMMISSIONER CARON: Yeah, I know. I just like to hear them say this every single time. It drives me insane. I don't think we should be asking people to do things we're not willing to do ourselves for the most part. CHAIRMAN STRAIN: I mean, why -- MR. LENBERGER: It's not exempting all government, it's just exempting the essential services, other than park sites. COMMISSIONER CARON: Well, everything -- CHAIRMAN STRAIN: It's all government anymore -- COMMISSIONER CARON: -- you have is considered an essential service. CHAIRMAN STRAIN: A bathroom is considered an essential . servIce now. COMMISSIONER MURRAY: Specially for old folks. COMMISSIONER CARON: I actually want to go -- CHAIRMAN STRAIN: Go ahead, Ms. Caron. COMMISSIONER CARON: Unless you want to follow up -- COMMISSIONER SCHIFFER: Well, isn't this saying that you can put -- you could do it off-site, but you're not allowing essential services to do it off-site. Is that what this is saying? MR. LENBERGER: No, we are. COMMISSIONER CARON: These are ways -- MR. LENBERGER: This is the applicability. Page 103 October 2, 2008 COMMISSIONER SCHIFFER: Okay, all right. COMMISSIONER CARON: So five, the affordable housing one? MR. LENBERGER: Yes. COMMISSIONER CARON: Isn't this just sort of creating a lot of high density area with no green space? In other words, where I come from it's called a slum. Seriously, if you're going to pack, you know, hundreds of homes and it's going to be nothing but concrete on the ground and up, because you've allowed them to take all their vegetation requirements off-site, I'm not sure that's really a good thing. I'm not sure that's a good thing for the people who are going to end up living there. It may be fine for whoever is developing it, but I'm not sure it's a good thing for people who have to live there. COMMISSIONER MURRAY: Mark? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER MURRAY: Actually, that's a rudiment of smart growth. That really is. COMMISSIONER CARON: That it should be a concrete jungle and -- . COMMISSIONER MURRAY: Yeah, pretty much it's going to result. The idea is green space goes away -- goes outside and density goes up and -- COMMISSIONER CARON: That doesn't sound real smart to me, sorry. CHAIRMAN STRAIN: Anybody else have any questions about five? We'll take a look at that one. It's a good point. Why do we want to treat affordable housing projects any differently in regards to some preserve standards? They might have some latitude, but I'm not sure eliminating them completely is the answer. Page 104 October 2, 2008 MS. MASON: Excuse me, I put up the section of the CCME, because in paragraph 10.D it says, the type of land use proposed such as but not limited to affordable housing. And I -- COMMISSIONER CARON: Where are you? CHAIRMAN STRAIN: She's on the screen. MR. LENBERGER: The CCM policy we're dealing with. MS. MASON: My understanding, I wasn't involved with the Growth Management Plan changes, but I was given the impression that the board was specifically interested in allowing it for things like affordable housing. I can check with Bill, if he has more to say. MR. LENBERGER: We would look to you and the BCC for direction -- CHAIRMAN STRAIN: Mr. Murray? MR. LENBERGER: -- regarding the amount or whatever appropriate. COMMISSIONER MURRAY: Going beyond that, out in Immoka1ee, for instance, where I know Paul can speak to this certainly, you might have where the folks come and go, the ones that pick food and so forth, that might be deemed affordable housing. And the amount of money that it takes to put everything around, it may not be the best situation for that area. I wonder if this wasn't an effort to try and look at that issue. Was that even dreamed of, part of it, any part of it at all? MR. LENBERGER: I don't quite understand exactly what -- COMMISSIONER MURRAY: Okay. I'm sorry if I didn't make myself clear. I'm thinking that out in Immoka1ee, I use that as an example, where they're trying to introduce opportunities out there. Their income stream -- you know, their income is rather limited out there. So by having to put all the preserves in and retain this and retain that, it essentially makes it prohibitive for them to build some of the Page 105 October 2, 2008 things they need. And that's the circle that I'm talking about. Was that even considered in this? That's the question I'm asking. MR. LORENZ: Yes, let me answer it. And I think Susan has put up on the visualizer the GMP requirements. For affordable housing, I think that's -- if what you're saying is that the concern was that the requirements on-site for preserves, retain native vegetation going into preserves, took away from the ability of that proj ect to get its density to be able to be affordable. The thought was back then, and I remember talking with one or two individuals, that they indicated that if you could have an off-site alternative for affordable housing, especially for a payment in lieu of, they could raise funds to preserve that off-site, they could get money, especially in the payment in lieu of, and that would be helpful to them. So that was -- I mean, I had that conversation. So indeed, that was -- was the idea was to try to reduce the cost or at least the cost to the affordable housing developer, especially ifhe could raise money from donations for that off-site alternative. COMMISSIONER MURRAY: I thought that might have -- CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: And Bill, isn't it essentially only the units you get through the density bonus, whatever percent those units are, that's the percent of preserve you can move off-site -- MR. LORENZ: Yes, that's how we constrain this proposal. CHAIRMAN STRAIN: So if you get 10 percent increase you get a 10 percent preserve off-site. COMMISSIONER CARON: So it's not an unlimited thing. MR. LORENZ: Correct, it's tied to that affordable housing bonus agreement. COMMISSIONER CARON: Just to the bonus agreement, okay. MR. LORENZ: For those affordable housing units that are allowed. Page 106 October 2, 2008 COMMISSIONER CARON: I'm good with that. CHAIRMAN STRAIN: Okay. Let's move on to other parts of Page 171. Anybody else? (No response.) CHAIRMAN STRAIN: How about vi, number six, proposed preserves where the amount of exotic vegetation necessitates mechanical removal. What's the trigger for necessitates? Who decides that? How is it decided? MR. LENBERGER: We wanted to add flexibility. Some sites are -- they're so impacted with Me1a1euca, for example, let's just say, you know, 75 percent coverage and sparse native vegetation, that you're better off going off-site. This was put here to just add flexibility. CHAIRMAN STRAIN: Right. And I understand and I don't disagree with you. But the point is the word necessitate in your mind could be a whole heck of a lot different in the mind of a developer who wants to move it all off-site. And he says that's necessitating as far as I'm concerned. MR. LENBERGER: I don't know what -- another word to use there unless you -- CHAIRMAN STRAIN: Put a percentage in. MR. LENBERGER: You want to do a percentage of coverage? CHAIRMAN STRAIN: Well, wouldn't that be more definitive and be able to -- you could -- you tell me, Steve, what -- if you've got Me1a1euca on a site and it covers 25 percent of the native vegetation, are you going to allow mechanical removal? MR. LENBERGER: It's not just canopy coverage. It could be a whole host of things, and a lot of exotics require different types of treatments. You could have air potato, which is just an invasive just blanketing a site. But you can have a whole forested canopy and it would just be a monumental effort to get rid of it if it was so dense. Page 107 October 2, 2008 You could have torpedo grass fully in a marsh where maybe it was in the middle of your community and -- your development and you wanted to eliminate it, but you have this preserve requirement, it just would be so full of torpedo grass, you'll never get it out. CHAIRMAN STRAIN: I'm not disagreeing -- MR. LENBERGER: It's very hard to define specific criteria for all those different types of exotics. We wanted to add some flexibility there. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I don't even know if the word necessitates is the critical factor. The amount becomes the factor. But if you remove mechanical, would that dramatically change your -- I mean, you're focusing on mechanical. Either it needs to be removed or it doesn't. Does that solve the problem, do you think? COMMISSIONER SCHIFFER: No, it's different. COMMISSIONER MURRAY: I mean the word amount is your real critical factor there. How do you know when it's the tipping point to get removal, right? But that's a judgment factor they want to have. Now, who goes into -- do they do that grid thing and then calculate it -- CHAIRMAN STRAIN: That's what I'm trying to find out. The problem I have is the -- I understand you want flexibility. There have been people who would believe that your department, not you in particular, but your department doesn't provide any flexibility, in fact goes in the opposite direction. So I have to proceed under that assumption and that's the worst case scenario. And that's where my concern lies with the word necessitates. I don't know where -- I don't know how to leave that ambiguity with the decision-makers who need to make that decision and expect a practical outcome. COMMISSIONER MURRAY: Well, at some point a necessity Page 108 October 2, 2008 arises, at some point. We don't know what that point is. You talk about percentage, and I agree, percentage might be applicable. You don't like the word necessitates, but at some point you have to remove the stuff, right? So how else would we go? I mean, I know where you're coming from, I think. MR. LENBERGER: We could put 75 -- COMMISSIONER MURRAY: But I'm thinking -- my issue is not the fact that it's necessary, it's at what point is the trigger pulled. MR. LENBERGER: Right, understand. COMMISSIONER MURRAY: And maybe -- MR. LENBERGER: Do we want flexibility too -- COMMISSIONER MURRAY: So tell us the process. You take a parcel of land, then you put a grid over it and you go over -- I'm doing this on purpose, I know you don't do this. But if you had this process, you would be able to see oh, well, we have 72 percent and it has to be cleared. You don't care if it's mechanically cleared, that would be the more logical way. If you had 20 percent, you might still want it cleared. At what point do you care that it's not cleared? CHAIRMAN STRAIN: Brad, can you offer some help? COMMISSIONER SCHIFFER: Yeah, Steve, aren't we reading this backwards? This is -- somebody who's managing a preserve comes to you and says I've got a problem, I'm going to have to put mechanical equipment in there to solve it. You judge that. And then you're going to come back to him and say okay, I'll let you rut in or whatever it is you're going to do, but I want you to pay some off-site mitigation for that. Isn't that the intent of this? In other words, this is allowing me to use the off-site because I'm going to use mechanical equipment to -- MR. LENBERGER: It's to give you the option. This is not a requirement, this is to give you the option. Page 109 October 2, 2008 COMMISSIONER SCHIFFER: Right. This is me coming to you saying I want to use mechanical, and you say whoa, whoa, you can't unless you -- and then we start negotiating off-site mitigation -- or the off-site retention. MR. LENBERGER: We could put a 75 figure there if you're more comfortable with that. COMMISSIONER SCHIFFER: I think no percent is a good idea. MS. MASON: But just to clarify, this isn't a mitigation, this would be an off-site retention. So they would no longer have -- if they went this route, they would no longer have whatever portion of the preserve remaining on-site. They'd be free to develop that. COMMISSIONER SCHIFFER: Right. Because you're expecting me to ruin it with my mechanical attack. But it's up to me to want to do the mechanical. It's up to you to judge whether -- you know, if it's to take an air plant off a tree, you might reject that. MS. MASON: Normally exotic removal in preserves is restricted to hand clearing or hand carried tools only. It's more extraordinary circumstances that they might be allowed to take mechanical machines into the wetland or whatever area without destroying the other native speCIes. COMMISSIONER SCHIFFER: This is giving you the handle you need to force them to do the off-site retention for the damage they're going to do to that preserve, because it won't be preserve anymore in that area that they mechanically -- MR. LENBERGER: We're not forcing anyone to explore this option. This is just an option for them, if we wish to pursue it off-site. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Don't we have an unintended consequence potential on that one, where you're actually motivating people to clear their land so that they can build more? No? CHAIRMAN STRAIN: Well, see, what would happen I think is Page 110 October 2, 2008 that some people wouldn't want to put preserves on their property, and they could use a volume of exotics on their land to argue it necessitates mechanical clearing; therefore, you have to let me mitigate off-site all my property. And I don't believe that's what we as a board would want to see necessarily. But there are times that may be warranted, and that's why we're trying to get to the word, whether it's amount or necessitates, some kind of percentage. Because you leave it up to a developer to make that decision, they're always going to do off-site if they can. It gives them more possibilities on-site. MR. LENBERGER: Why don't we take a look after that. CHAIRMAN STRAIN: I was going there next. The word overrun. MR. LENBERGER: Well, you know -- these are all kind of the same ideas here, so maybe we ought to look at them. We've got overrun, or we have so much that it requires mechanical removal. CHAIRMAN STRAIN: Steve, I think you're getting a flavor of where we're going. Could you try rewriting those two paragraphs? Because the next one is just as bad, in preserves overrun and where restoration is not possible, preserves not previously overrun by this type of vegetation which arrive at this state due to lack of management. Those are all really ambiguous statements that have -- really they're just at the discretion of whoever is taking the application at the time. And I think that's a concern, so -- Ms. Caron? COMMISSIONER CARON: Yeah, I think six, seven and eight as well all leave things wide open for abuses. I really think that we will not get what we want out of this, we'll just get a lot of off-site mitigation. CHAIRMAN STRAIN: And I think the abuse can go in both directions, which is what we're trying to stop. COMMISSIONER CARON: Yeah, it could, yeah. Page 111 October 2, 2008 CHAIRMAN STRAIN: Right. So with your -- if you didn't write this, I'm assuming you didn't, could you take another stab at it, or a stab at it? MR. LENBERGER: I understand you're looking to tighten it up. And it seems to me that for six you'd have to do a percent if you wanted to quantify it. And I would suggest the 75 percent. I'd have to revisit the language a little bit closer. COMMISSIONER SCHIFFER: Let me, Mark. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Steve, the danger on the percent, what it has in here is that the county man (sic) or his designee could work with that person and determine it. Isn't that the control to prevent them from abusing it? I mean, if I'm there I've got to bring in a D9 or something that is going to totally ruin the whole preserve, you're going to discuss that with me, we're going to come up with other options prior to that happening, right? Isn't that -- but if you say 70 percent, then I'm going to go in and ruin 70 percent and expect it by right. MR. LENBERGER: You know, we -- if you don't feel comfortable with any of these criteria, we can eliminate them. You know, they don't have to be in there at all. COMMISSIONER SCHIFFER: I think they're good. I think eight, if you come out to my preserves and I've turned it into a topiary of elephants or something, you're going to discuss whether I ruined the intent of what the preserve is about, and, you know, make me do something. I mean, that's the handle you need, isn't it, to keep somebody from turning a preserve into a decorative garden? MR. LENBERGER: Well, the preserve management plan would be the appropriate instrument to regulate what happens in the preserve, along with the conservation easement, which we have other amendments for. This is just allowing off-site. Page 112 October 2, 2008 So presumably if you managed a preserve other than for its intended use, you'd have to restore it. This is just trying to get some flexibility and say at what point. You say well, it's probably better just to do it off-site. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: I don't think it's going to fly like it is. I think you need to come back with something, Steve, and I don't know how we can have more discussion than we've had. We'll certainly hear from the public, so maybe you'll get some insight during that portion of time. Anything else on Page 171? (No response.) CHAIRMAN STRAIN: If not, we'll move to 172. Anybody have any questions on Page 172? I have more writing on my page than I have typing. Anybody else? (No response.) CHAIRMAN STRAIN: Ii talks about preserves shall remain on-site, then it talks about in the center, about the sixth line down, wildlife corridors and protected or listed species nests, buffers and foraging habitat. I go back to my same concern that anything is a foraging habitat. So as we talked about tightening up the other language as to having a species on-site or something, in lieu of that, that may be something to consider. The six lines down from that it talks about contiguous lands having a continual preponderance of wetland or wetland plant species. Who determines what a continual preponderance is? How is that figured out? MR. LENBERGER: It would have to be evaluated by an environmental consultant. Page 113 October 2, 2008 CHAIRMAN STRAIN: Okay, so you take a consultant's evaluation on that? MS. MASON: Staff always does site visits to confirm that the FLUCCS mapping or whatever information is provided is accurate. But it would be as part of mostly either an EIS review or just a -- if it doesn't reach that standard of review of the site. So I think it would be provided by the applicant and verified by staff, like most other information they provide. CHAIRMAN STRAIN: Okay. MS. MASON: And the preponderance, I think that's just at least half. MR. LENBERGER: It's often a term the state uses. The defining, clarifying what a flowway means came at the request of DSAC, and that's when we put this language in here dealing with the federal agencies, regional drainage studies, surface water management permits. They all -- they all identify flowways. And then we took this other language out. I believe it's in the -- is it in the interim watershed -- interim watershed plan for the county, which is in the code. And so that's where this other language came from. CHAIRMAN STRAIN: How do you know where an edge of a flowway is? MR. LENBERGER: You have to use the criteria here. CHAIRMAN STRAIN: It just says it shall be determined on field determination based upon vegetation and elevation differences. MR. LENBERGER: From the adjacent uplands and transitional wetlands. CHAIRMAN STRAIN: So it's like a wetland jurisdictional line? MR. LENBERGER: I would have to ask staff who wrote this exactly how they intended that to be. CHAIRMAN STRAIN: Well, I think it will be supplied. I just Page 114 October 2, 2008 was curious. It's not nothing we have to delve into. The iii, in the second line you're talking about a minimum one acre in size, and in the last line, remaining preserves less than one acre in size may also be provided on-site. Is that a contradiction? MR. LENBERGER: Well, it says unless preserve with higher quality habitat not qualifying for off-site native vegetation retention. Then if you have a piece that has quality habitat and non-quality habitat, we're just saying if it's one acre or less, you can also do that off-site. But I see what you're saying here. CHAIRMAN STRAIN : Well, looks like in the first part you can't have anything less than one acre and the last part it says you can. MR. LENBERGER: Right. It may not be needed is what -- I see what you're saying, okay. CHAIRMAN STRAIN: Actually, Tim Hall said that, so -- COMMISSIONER MURRAY: Mark, I agree. Maybe you could fix it by -- if you need to fix it by simply using your semicolon as opposed to modify the language so that it reflects on that sentence with the clause preceding it. MR. LENBERGER: Thank you. CHAIRMAN STRAIN: Okay. Under off-site alternatives, i, off-site native vegetation retention requirements may be met by monetary payment or by land donation. That strikes a lot of familiarity to exactions. I'm wondering how it differs from another form of impact fee but more or less by monetary payment. How do we stop abuse in that regard in this? MR. LENBERGER: We have the criteria which allow for off-site prior to that. And it's voluntary. CHAIRMAN STRAIN: It's voluntary? Page 115 October 2, 2008 MR. LENBERGER: This is all voluntary, if you want to do it off-site. You don't have to. CHAIRMAN STRAIN: You could still meet the criteria and do it on-site, okay. The land donation thing, down further it looks like the land would be donated to Conservation Collier. Is that what the intention is? MR. LENBERGER: What page? CHAIRMAN STRAIN: 172, C.ii. MR. LENBERGER: If it's monetary, it's the Conservation Collier. If it's land, it can be the Conservation Collier, subject to these restrictions, or another entity, and it says here what type of entity that IS. CHAIRMAN STRAIN: Have we talked to Conservation Collier to find out their input on getting pieces of land like this? MR. LENBERGER: Yes, we have. We worked this language through their committee. CHAIRMAN STRAIN: Okay, because I mean, small chunks of scattered about parcels are hard to maintain and costly. I was just wondering if they -- MR. LENBERGER: That's why they have this criteria here, where it talks about to adjacent properties within their acquisition areas. I'll have to find it exactly where it is, but -- oh, here it is, on Page 1 72, point one. And it talks iii, in lieu of monetary payments, applicants may choose to donate land to Conservation Collier or to another government agency. In the event of donation to Conservation Collier, the applicant may acquire and subsequently donate land within the project boundaries of Winchester Head, north Golden Gate Estates, Unit 53, another multi-parcel project or any other land designated by Conservation Collier or contiguous to existing preserve lands. COMMISSIONER MURRAY: Mark? Page 116 October 2, 2008 CHAIRMAN STRAIN: Mr. Murray, then Ms. Caron. COMMISSIONER MURRAY: Mr. K1atzkow, I have a question relative to the donation of the property. Are we talking fee simple or are we talking about only surface rights, or what? Shouldn't we stipulate how the donation can be made in conveyance? MR. KLATZKOW: All donations should be fee simple whenever possible. COMMISSIONER MURRAY: I would agree. But in the absence of that, I do know that there are parcels of land in the county that their mineral rights are owned by others. MR. KLATZKOW: Well, you can't give what you don't own. And if you purchase property and they're subject to somebody else's easement, you can only give what you have. COMMISSIONER MURRAY: So donation may not even be feasible under the underlying circumstance, if that were the case. MR. KLATZKOW: No, you could donate the land, but it might be subject to these other rights. Now, whether or not Conservation Collier would want that land IS a -- COMMISSIONER MURRAY: That's really where I'm going with that question, though. MR. KLATZKOW: I think inherent in this the county could say no, we don't want that land. COMMISSIONER MURRAY: And that puts them back to the money issue, and that's fine. MR. KLATZKOW: Yeah, that puts them back to on-site preservation or money assured, yeah. COMMISSIONER MURRAY: Okay. I think it's an important piece of information, though. CHAIRMAN STRAIN: Ms. Caron? Page 117 October 2, 2008 COMMISSIONER CARON: If land is donated to some other government agency, what kind of control do we have? MR. LENBERGER: We would have to know they donated the land and they've accepted it. We also had a provision in here about the deed. It has to specify a requirement that it's in perpetuity for conservation purposes. I'd have to find the exact language. COMMISSIONER CARON: Would you please? MS. MASON: It's on 172.1, that second paragraph or the first full paragraph from the bottom, about nine lines up. MR. LENBERGER: It says -- let me find out where the sentence starts. Donations of land for preservation shall be made to a federal, state, or local government agency established or authorized to accept lands for the conservation and management of land in perpetuity, subject to the policies and procedures of the receiving entity. The deed to the receiving entity shall specify that the receiving entity will accept and manage the land in perpetuity for conservation purposes. COMMISSIONER CARON: Okay, but it's subject to that governmental agency, and they could change their rules and regulations and we would have no control. MR. LENBERGER: It's their policies and procedures for accepting the land, but the deed will still have to specify that they'll accept and manage the land in perpetuity for conservation purposes. That came at the request of the County Attorney's Office. CHAIRMAN STRAIN: Okay, any other questions on Page 172? COMMISSIONER SCHIFFER: I do, Mark. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: And your requirement is that you take -- find out your cost of your land and multiply that by the number of acres you're going to move off, add the 25 percent of that, which is the overhead costs, right? And how did that 25 percent come Page 118 October 2,2008 up? Is that -- MR. LENBERGER: There's a lot of interest by land managers on the cost for managing land. General consensus is that it's higher than anticipated. Conservation Collier presently uses 15 percent. They're looking to raise that. They realize that it's not enough. There's been a lot of concern that if these lands are transferred to the government entity and responsibility for the people and taxpayers, but they don't want to be burdened with maintenance costs. And that's why we've had a lot of discussions, and a minimum of 25 percent came out. They want to have at least 25 percent to ensure that they have enough money to manage these lands. They don't want the extra burden being shifted to the taxpayer. COMMISSIONER SCHIFFER: So essentially for someone to do this, they would take, with the 25, about 30 percent of their land cost, they would have to donate to this facility, that's the 25 percent of the land and stuff. MR. LENBERGER: 25 percent. COMMISSIONER SCHIFFER: And then you wanted that prior to pulling the SDP, which is -- isn't that right, it's 100 percent must be made prior to the final site plan, construction plan approval. Is that the SDP or-- MR. LENBERGER: Yes, that would be the final development order, the SDP or construction plans for the plat, the subdivision. COMMISSIONER SCHIFFER: Okay. I mean, I guess -- is there any place you could move that down a line, or that's -- MR. LENBERGER: We're open to suggestions, you know. But this is how we can definitely have control and make sure it happens. Other than that, we have -- once a plat or construction plan is approved, then we'd have to tie it to some sort of inspection where their -- that's a subdivision preliminary acceptance or something like that. We could tie it to that. Page 119 October 2, 2008 COMMISSIONER SCHIFFER: I think in this economy, essentially you're taking 30 percent of a guy's or 31 percent of his cost to buy the land, which is high. And then you want it before he can even start moving dirt around. That's just going to make life that much -- MR. KLATZKOW: Part of the cost of acquiring land is the fact that you know 25 percent is going away, so that reduces the cost of the land. COMMISSIONER SCHIFFER: Right. But in this case I'd have to essentially come up with that money and, you know, for every dollar I come with to buy land I got to then again come up with another 31 cents to pay this off. Not good. CHAIRMAN STRAIN: Ms. Caron? MR. LENBERGER: We could change it to preliminary acceptance or C.O. or however you want to structure that. COMMISSIONER CARON: But that's only if you choose to go off-site. So, I mean, that's your choice. It's not we're telling you you have to do that, so it's a choice you've made and to do it at the site. development plan, that's when we have the most control. That's where it should remain. COMMISSIONER SCHIFFER: I mean, in terms of the community, is there a benefit to not going off-site. Obviously in terms of that development. But some of these are industrial developments and stuff, and is there -- which benefits the community the most? COMMISSIONER CARON: It's up to the developer to decide that. COMMISSIONER SCHIFFER: I think giving money to Conservation Collier has a major benefit to the community, too. MR. LORENZ: You may recall, when we worked through the EAR amendments we were looking at some flexibility with regard to having to keep the preserves on-site. So that's some flexibility for the development community, for the applicant, for the property owner. Page 120 October 2, 2008 There's also a recognition that smaller preserves -- and what we tried to do was try to set some of these constraints of smaller preserves where the surrounding land uses are, are such that the benefit that we get out of the preserve is very small. So on the one hand we want to -- we want to provide some flexibility, and we want to provide some flexibility and encourage -- quite frankly, encourage those preserves that probably have less of a probability of functioning correctly on small sites to utilize the off-site alternative. One thing I wanted to be able to have you all look at and even perhaps the public when they make comments is that to some degree -- for some of these sites that we want to go off-site, we quite frankly want to have an encouragement to do that, and we want to have an incentive to do that where it makes sense. So your question was, what would be the benefits. And I think the benefits are ecologically for small preserves it makes sense to go off-site along these lines, either through payment to, let's say, Conservation Collier, for them to buy larger more intact areas, or contribute land donations to other governmental agencies to add to their larger preserves I think is positive. So this was an attempt to try to provide for those positive incentives. Of course again, as we work through the stakeholders' groups, certain demands get in here, and I want to make sure that we've got an incentive to go off-site when it makes sense. And it's not going to be overly burdensome, because then it won't be an incentive. CHAIRMAN STRAIN: Okay. COMMISSIONER SCHIFFER: So anyway, I do think it would be good to find a way to make that payment down the road. The other thing is that's really not necessary for the use of the site. It's not like transportation that needs to do w.ork in the area. This is -- once you push it off-site, the money doesn't need to be, I don't think, Page 121 October 2, 2008 at the SDP period. Thank you. CHAIRMAN STRAIN: I'm not necessarily disagreeing with you. Let's see if staff has any better ideas when they come back and could just present them for discussion. Page 1 72.1. Anybody have any questions on Page 172.1? (No response.) CHAIRMAN STRAIN: Up at the top it says, the appraisals are valid for only six months. Is that from the time of application or from the time of approval? MR. LENBERGER: I'll have to clarify that. CHAIRMAN STRAIN: Okay. Well, that's all it takes is a clarification. Any questions on Page 172.1? (No response.) CHAIRMAN STRAIN: And then on 172.2, there are two-and-a-ha1f lines. Questions about the two-and-a-ha1f lines? (No response.) CHAIRMAN STRAIN: Before we go on break, how many people are going to ask -- want to speak on this, please raise your hands. Okay. Well, let me tell you where we're going to be. We're going to take a break for 15 minutes, but when we come back it would be nice if we could finish this one up today. I'm not sure we can, although those of you speaking, we've already provided a lot of direction to staff, so maybe you can just supplement or reinforce whatever you think needs to be reinforced so we can get on with the day. By 3:00, but most likely sooner if this one gets done sooner, we will move into the other issues that we have on our agenda that are non-environmental. So this looks like to be the last one Page 122 October 2, 2008 environmentally we may end up talking about today, depending on how long the speakers take. So let's take a break right now. We'll be back here at 2:25. (Recess. ) CHAIRMAN STRAIN: Okay, everyone, will you please have your seat so we can try to stay awake for another two-and-a-ha1fhours. We left off with the last discussion ending with our comments, and now we're looking for public comments. And the last person to speak will be Nicole, so who can speak before her? MS. RYAN: I was even going to offer to go first. CHAIRMAN STRAIN: This is ladies last in this case, I know, I know. She likes a closing statement. But if you want to come up, you're more than welcome to. MS . RYAN: I'm starting to get a reputation, so I want to change things out a little bit. For the record, Nicole Ryan, here on behalf of The Conservancy of Southwest Florida. And I'm going to focus my comments on the section B, the off-site mitigation portion. CHAIRMAN STRAIN: Do you know what page you're on? MS. RYAN: It is Page 170. Beginning on Page 170. And The Conservancy, when the GMP language went through, we were very concerned about how this policy of off-site mitigation for this native vegetation could be applied. But understanding that the GMP did allow for that, we've been working with staff to find those acreage thresholds that would provide the balance of allowing smaller sites to develop in a manner that would make it profitable, while also keeping native vegetation, when it was in an acreage amount that would provide benefit for habitat, for aesthetics, for water recharge. So we support what staff has put in here for the thresholds of the two acres for the commercial industrial sites and the one acre for the Page 123 October 2,2008 residential sites. I want to point out not just where we have concerns about language, but also where we support what staff has done. And that's an area that we do support what staff is recommending. On the issue of essential services on the top of Page 171, I agree, I'm not quite sure why government would put in place a standard and then exempt themselves, but that's just an aside. The affordable housing, the same sort of issues. I disagree a little bit with the Smart Growth idea of you just put everything as concrete in the urban area and then keep the green outside. I think that you can work with density to go up or to have some of these green areas left. But we're not going to insist that a change be made there. But I think you can try to use Smart Growth to have everything on-site. On 171, under iv, about the mechanical clearing and the word necessitates, again, I agree with Commissioner Strain, that's a bit vague. I think one of the concerns that we have is this whole policy, when we talk about the manual versus the mechanical clearing, when you say that you need to use mechanical clearing, is that from a biological perspective? Would that be from the perspective that the property owner simply thinks it's too expensive to go in and manually clear? You can manually clear just about anything. And keep in mind that for those vegetation areas that are 75 percent exotics, they're not going to qualify for a native vegetation under this section anyway. So I think that there needs to be some more specificity there. Also, with no acreage threshold, just keep in mind, this could apply to some very, very large preserve areas. Another question which needs clarification is if one portion of the preserve is deemed to need mechanical clearing, does that mean the entire preserve could be mitigated off-site? How is that going to be Page 124 October 2, 2008 parceled out? We're really uncomfortable with this language. We would actually -- we've been recommending through a couple of the iterations at EAC that it be removed. But if it's going to remain, it really needs to be clarified quite a bit. On the vii below it on Page 171, again the definition of overrun. And how do you determine if restoration is or is not possible? You can restore just about anything. The state's going to buy U.S. Sugar lands and restore that. So restoration can be done in just about all cases. Again, that language is vague. Is the restoration tied to ecological or simply financial issues and concerns? On viii, how do you determine if restoration has been a success? And if you do go in, plant bougainvilleas in your preserve because that's what the homeowners association likes, then will the result be okay, keep your bougainvilleas and you can mitigate off-site? Again, we want to make sure that this language isn't abused. And I think there also needs to be some clarification under five -- six, seven and eight on Page 171. Is this for -- six says proposed preserves, but seven and eight, is that for a proposed preserve, is that for a preserve that has been on-site for five years, 10 years? Again, I'm not quite sure in all the cases how this could be applied and a little bit quite concerned about that language. Under B.ii on 171, and then going towards 172, there was the question about the foraging habitat. And that was included, I believe, and the example that comes quickly to mind is for example, the wood stork. You can have a Me1a1euca infested wetland, the wood stork might not go in and actually forage in that area; however, that area is still a wetland, it is still wet, and it does provide the nursery ground for the fish and crustaceans that the wood storks are going to eat. So it's part of the entire system and the foraging habitat. So that was I think what staff was trying to capture with that Page 125 October 2, 2008 language. And we want to make sure when we have those flowway systems, we look not just to see if there's a panther telemetry point or a wood stork spotted on-site, but is there their refrigerator on-site. Because if you take away the refrigerator then you're going to really be impacting them. Under C, on the off-site alternatives, The Conservancy really struggled with Conservation Collier being the appropriate entity to receive mitigation funds and essentially act as a developer's mitigation bank of sorts. But because again the GMP says that there will be this fund, Conservation Collier is likely the most appropriate for that. We do want to support the language under C.ii on 172 that requires no less than the 25 percent for the management and endowment fund. We talked with Conservation Collier, and Steve alluded to that. They really believe that the 15 percent that Conservation Collier currently uses isn't enough in many cases. So we want to make sure that enough funding is in there so that the taxpayers, the public won't in some cases be subsidizing a developer's off-site mitigation. So we really support that language and we hope that that remaIns. Just one thought on the bottom of Page 172 under C.ii. Wouldn't it make sense if the applicant gave the money to the county and the county had the appraisal done? I don't know as it really makes any difference either way. But if the real estate services are going to be reviewing the appraisals, they do the appraisals for Conservation Collier, have them contracted out. So shouldn't it go through that same Conservation Collier type process? So just a question of which way that is going to go. CHAIRMAN STRAIN: I would probably think if you were a developer wanting an appraisal that you felt was unbiased, you'd probably want to have one of your parties do it, then have it reassessed or reevaluated by the county, and the county then would make sure it's Page 126 October 2, 2008 accurate. So there may be a reason why the developer shqu1d be doing it in that case. MS. RYAN: And that's fine. I brought that up as a question. And it can remain. That's fine. And I guess also under -- yeah, I think that captures most of our comments and concerns. With the actual donation of land, again, the 25 percent is going to be important. There is a question of if there are other entities that receive that land. Can it be any parcel? How is that going to really mesh with current conservation lands? Could it be a parcel out in Golden Gate Estates that's donated to another entity? Is it going to actually have some value? And who approves of that? So it might need to have some additiona11anguage there. But we're certainly willing to work with staff to tighten up some of this language, and we hope that you keep some of the good parts in here, because I think staffhas done a good job throughout this to really make sure that this is something that won't be abused. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I just wanted to make a comment, because I'm not sure I made myself clear before with regard to the so-called Smart Growth principles. It doesn't call for a denuding, and it doesn't call for prison-like environment of the structures or surrounding areas. It calls for a different form of land planning use. MS. RYAN: Correct. COMMISSIONER MURRAY: And in that context it can be quickly stated that i~ more focuses on up than out to avoid sprawl. And I made it perhaps too simplistic. CHAIRMAN STRAIN: Nicole, if you do work with staff on any language, I think that something that needs to come out of today and Page 127 October 2,2008 probably going to be following forward any time this board discusses amendments to the LDC, we need to have plain and simple language that we can understand. Honestly, we probably have a better understanding familiarity with the code than the general public. But if we are as lost as I feel today on the ambiguity, the where this and how this language fits together, I can only imagine what the lay readers are doing trying to figure out how to do a project without getting either hosed by the experts they have to hire to analyze it, which they shouldn't have to be doing, or trusting staff, who a lot of times have not shown that they've been totally unbiased in the way they've interpreted the code. We should have -- the public should be able to read this and make simple decisions out of it. So if you have any insight into that, and I know you have read other codes of other counties, and you could provide any help on that, we would appreciate it. So thank you. Okay. Mr. Anderson? MR. ANDERSON: Good afternoon. Bruce Anderson, from the Roetze1 and Andress law firm. If you would, please, turn to Page 165, which is the beginning of the staff report. CHAIRMAN STRAIN: By the way, I won't ask you to simplify the language. I know you're an attorney. COMMISSIONER MURRAY: You're naughty. MR. ANDERSON: No comment. If you'll look at the second paragraph in the staff report, it says that the exceptions have been relocated. And those exceptions struck through are found on Page 170. And I've reviewed this several times, and I'll be darned if I can find where that language has been relocated. And if somebody after I sit down can point that out to me, I'd be real pleased and greatly relieved. Page 128 October 2,2008 CHAIRMAN STRAIN: Well, we certainly -- before this is over, we're going to ask, see if anybody else can find it too. Thank you. MR. ANDERSON: On Page 167 at the top, paragraph number one, the word possible has been struck. And I think that ought to be left in there so that this requirement does not become an absolute with no flexibility whatsoever. Instead, it would now read, the largest contiguous area, and that's it. And not the largest contiguous area possible, which introduces amount -- keeps an amount of reasonableness in it. Next comment I have is on Page 168, paragraph 6.A.iii, where it talks about the lack of a clearing permit. And it makes reference to, if no clearing permit can be found, you demonstrate continuous bona fide agricultural use. My question is, why is that limited to agricultural clearing? Because there may have been other clearing which was quite legally permitted and the county has lost the records to document that, but it can clearly be established what the date was by looking at old aerial photographs. So I don't think that this ought to be limited to just agricultural operations. If you can prove it, it ought to be applicable to any clearing which occurred legally in the past. CHAIRMAN STRAIN: That's a good point. Anybody have any concern? COMMISSIONER MURRAY: Yeah, we could add or other. CHAIRMAN STRAIN: Yeah, as long as we don't disagree with Mr. Anderson. Bruce can -- staff can then move forward with trying to make it a little clearer, as long as we don't disagree. MR. ANDERSON: Bottom of Page 171. The -- just the general language in this would seem to prohibit the ability to do off-site mitigation for property even if a state or federal agency would have otherwise permitted you to do off-site mitigation for it. The county's Page 129 October 2, 2008 coming in and saying we won't recognize that, we're not going to allow you to mitigate off-site, even though the permitting agencies at the state and federa11eve1 would. CHAIRMAN STRAIN: Where specifically are you on Page 171? MR. ANDERSON: At the bottom. I'm sorry, restrictions. When one or more of the following situations occur. COMMISSIONER CARON: Right. Which number are you on? MR. ANDERSON: B.l -- or B.i. COMMISSIONER CARON: B.i. Xeric scrub and hardwood hammocks? MR. ANDERSON: Right. It's later in that paragraph where it says, shall not be allowed to have the native preservation retention requirement provided off-site. And it doesn't give any exception for if they've gone through the state or federal permitting process and they would permit off-site mitigation of that same land. COMMISSIONER CARON: Well, I mean, first of all we can always have standards that are stricter. So maybe that's not what we wanted. MR. ANDERSON: Well, there's no flexibility whatsoever the way this is-- COMMISSIONER CARON: Yeah, I see that-- MR. ANDERSON: -- the way this is written. COMMISSIONER CARON: So people, just in reviewing it, you may want to -- CHAIRMAN STRAIN: I was just going to ask, has staff considered the state and fed regs in regards to this as exceptions -- or could you look at that before you bring it back to us? Let's put it that way. MS. MASON: I think we, you know, certainly could look at it. But there is a difference between mitigation that's required by impacts Page 130 October 2, 2008 by wetland or the listed species agencies and the county-required preservation. And this is to deal with the county's required minimum preservation, but it's not meant to preclude them from doing off-site mitigation if that's required by a permit. But that would not substitute for our requirement, whether it's on or off-site. CHAIRMAN STRAIN: Okay. A little clarification wouldn't hurt. MR. LORENZ: Yeah, let's -- sometimes I don't like to use the word mitigation here. These are off-site. This is the ability to have an off-site preserve or off-site alternative. It's not mitigation. And what I believe when going through the stakeholders' group, or certainly at staff evaluation, it was determined that, that properties that were able to have xeric scrub and hardwood hammocks one acre more in size are appropriate to remain on-site and therefore are not allowed to be retained off-site. That's simply -- that's a policy decision. But it doesn't have anything to do with mitigation requirements. COMMISSIONER CARON: Okay, I agree. MR. ANDERSON: Let me give an example. CHAIRMAN STRAIN: Use the mic. now, Bruce. MR. ANDERSON: What I'm talking about for an example, lands that are within one of the panther zones, primary or secondary. Probably secondary. A property owner comes in, the federal agency, state agencies are going to allow him to use that property so long as he mitigates for using that potential panther habitat, as long as he buys and mitigates land elsewhere to make up for that loss. This language would preclude that from happening. COMMISSIONER CARON: But again, I think Mr. Lorenz made the point, we're not talking about mitigation here. We're talking about required native vegetation. MR. ANDERSON: Okay. My point is something that the county would not allow you to provide off-site, the federal agencies would allow you to do so. Page 131 October 2, 2008 CHAIRMAN STRAIN: So if you've got a large tract of land like your example, and say there's 40 acres of preservation on it, and some of that preservation is xeric scrub and hardwood hammocks and the rest is regular swamp land or whatever. When you go to mitigate that off-site, you're stuck with a problem, because you can mitigate all the wetlands, let's say, but you can't mitigate now the xeric scrub and hardwood under any condition? Is that where you're going? And I understand the difference between mitigation and preservation on-site, but if you've got the right to take it all off-site from the state and feds, are we in a position to say even if some of that total 40 acres, if one acre of it's xeric scrub and hardwood hammock, you can't take that off-site? Is that what we're saying here? Because that may be an example of where you're trying to go. MR. LORENZ: Yes, we're saying that you cannot use the off-site alternative provision for xeric scrub and hardwood hammocks which are one or more acre in size, et cetera. CHAIRMAN STRAIN: Mr. Midney? COMMISSIONER MIDNEY: I think what we're saying is that those are some of the two most very valuable and rare habitats that we have in the county. They're very, very hard to come by. And if you have that on your property, you ought to preserve that. And I agree with that. MS. MASON: And I think there are many times, even today, because this is just a voluntary off-site requirement, where the state or feds require somebody to mitigate for impacts, but we still have an upland preserve on-site. I mean, they might completely impact their wetland, but that doesn't mean they don't still have an on-site -- currently under today's rules they'd have a required preserve and off-site mitigation for an agency. So it's treating it the same way, whether it's on or off-site. Page 132 October 2, 2008 CHAIRMAN STRAIN: Okay. I think we understand. Bruce, we'll certainly discuss it further. MR. ANDERSON: Next item, Page 172, at the top, by the paragraph ii, it talks about requiring preserves to remain if the property is located adjacent to targeted lands for preservation. Well, that's pretty nebulous. I mean, anybody can target lands for future purchase. Twenty years from now government decides well, we -- one day when we have the money we'll buy that, but for now we're going to target it for future acquisition. That ties things up really in an unacceptable manner. CHAIRMAN STRAIN: Go ahead, Ms. Caron. COMMISSIONER CARON: Is that meant just for Conservation Collier lands? I mean, it's a question. I don't know what the thinking was either, Bruce. CHAIRMAN STRAIN: When you answer the question, also, doesn't Conservation Collier rank lands? So maybe we ought to refer to their ranking level instead of targeting. That's not as ambiguous, and then all of a sudden we have something that's on public record. MR. LENBERGER: It wasn't just the Conservation Collier. It was all targeted lands, CREW or whatever the program might be. COMMISSIONER CARON: Oh, okay. So do we need to be more specific there about what we're talking about? As opposed to just a general -- CHAIRMAN STRAIN: Why don't you say kind of what you just said? Why don't we say listed by Conservation Collier, CREW lands. And if you don't think of them all, well, okay. We'll just live with that you think of, and if we think of more down the road we can add some language that allows something to be added. COMMISSIONER CARON: Such as. And then -- MR. LENBERGER: Such as ..- we'll review it. CHAIRMAN STRAIN: Mr. Murray? Page 133 October 2,2008 COMMISSIONER MURRAY: But doesn't that even more so tie it up, by virtue of having a list of possibilities that themselves will have rankings? CHAIRMAN STRAIN: I think that's what Bruce was looking for is more definitiveness rather than just the word target. COMMISSIONER MURRAY: I think that -- well, I understand that. But by what we've just suggested as an appropriate action I think is a worsening of the condition that Bruce demonstrated. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: I don't think so. Because if you know you have a tract of land, then if that's CREW lands, you're going to try to do your preserve in that area so that you get the biggest and the best. So I don't think that that should be a problem. I think being more definitive helps there, to know that these targeted kind of lands are like Conservation Collier or CREW or whatever else you might have. MR. LORENZ: My suggestion would be to list the lands, because that shows everybody definitively that these lands are important for us to retain those preserves that would be adjacent to them. So it does define the -- COMMISSIONER CARON: It will show people why we're doing that. I mean, that -- CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: In another scenario, we spoke about persons, owners, giving parcels of land in order to benefit from whatever. That was an earlier conversation. And we talked about it, gee, you know, does Conservation Collier look forward to that type of thing because they're here, they're there, they're everywhere. Well, under this scenario, isn't it plausible, possible certainly, that you might get such a donation and it might be in an area where gee, Page 134 October 2, 2008 that's a great area to target, we'll target next to that. Doesn't that tend-- I mean, if you're going to put it into a grouping, at least rank it on the first or second level so that you get a chance. Because otherwise, I'm sure the land's going to stay there for a long time. How long before the county recovers to be able to acquire all these parcels that we're talking about that we'd all like to have? I don't know -- MR. ANDERSON: Well, for example, North Belle Meade was targeted for acquisition about 15 years ago. It never came to be. And now it's dropped off. But if this language were in effect then, merely because it was targeted or on someone's wish list, this limitation would become operative. It would be best of all if you could just map out what you want so people could go to the map and tell whether it's applicable to them. CHAIRMAN STRAIN: Well, I think the best thing we can do right now is, staff, you've heard the comments, try to come back with something that is better than this, if it's possible. If it's not, at least we'll deal with it when we come back. Bruce, we have to -- MR. ANDERSON: Okay. At the bottom of Page 17 -- CHAIRMAN STRAIN: You're cutting out the rest of your friends there for time, so -- because at 3:00 we're stopping. MR. ANDERSON: Well, they told me I could go first. They ran the risk. (Laughter.) CHAIRMAN STRAIN: Boy, little did they know. MR. ANDERSON: Bottom of Page 172 it talks about when you're doing the off-site alternatives, that the value of the land that you are -- of your own land that you're going to have to take care of off-site, that the appraisal is based on the fair market value of the land as if the requested zoning is in place. Page 135 October 2, 2008 That's exactly contrary to what the Land Development Code provides for everything else. When the county is making an extraction of you during the zoning process, the value is based on the value of the land prior to zoning. And I think we ought to be consistent. Page 172.1, land donated to satisfy off-site preservation retention cannot be used as mitigation for any other federal, state or county permit or approval. We permit that to be done with TDR sending lands in the rural fringe, we do that to encourage larger preservation areas. So I don't know why we want to prohibit it here. And then my last comment is a question. In the last sentence of that long paragraph, it said for lands donated to Conservation Collier, no less than 25 percent of the value of the land donated shall be provided to Conservation Collier as an endowment for management of the land. And my question is simply, is that 25 percent what they're doing now, or is this a new percentage? Because I'm told by environmental consultants that under similar circumstances the South Florida Water Management District has a fixed price of $722 per acre. If you're taking 25 percent of the value of some of these lands, that's going to be quite, quite expensive. And those are my only comments, thank you. CHAIRMAN STRAIN: Thank you, sir. And as far as staff goes, that 25 percent, I had circled it, a lot. It is a concerning amount. If there is a way to peg a value, that sure would be a lot better than just 25 percent. And if you're looking at the value of the land donated, it becomes appraisal issues, it becomes tax -- what value? How are you establishing the value? So that's a whole ball of wax we may not need to get into if you can come back with something more concise, if there's a way to do that. MR. LORENZ: There were two schools of thought when we Page 136 October 2, 2008 were putting this together. And I think this reflects a little bit of perhaps input from The Conservancy and Conservation Collier. But another thought at least I was advancing initially was, remember for -- at least for Conservation Collier purposes, which is a county entity, is they will choose -- they get to choose whether they're going to accept the land or not. And I think it's to their -- it's their responsibility to accept the land, does it fit into the Conservation Collier purposes. If they want to make a deal that that land is going to cost "X" number of dollars per acre to manage, then my recommendation, quite frankly, is -- now puts the burden on them. But they will accept the land at a particular level of what the management costs would be that they would have assessed. And then that would be negotiated with the applicant. It wouldn't even be specified in the Land Development Code except the fact that Conservation Collier would have to accept it and everybody's going to play by what their rules are. So that's one approach. It doesn't specify it up front, but it simply says if Conservation Collier is going to accept the donation, they're going to accept the donation of land with the appropriate amount of money to manage it. CHAIRMAN STRAIN: Of course then the problem comes if it doesn't go to Conservation Collier, what do the other agencies accept? Do they have standards? MR. LORENZ: If the agency accepts it, whatever -- it's kind of like the TDR program. Bruce isn't there, but we're accepting that agency is going to accept it and manage it. And whatever deal they cut with the applicant, that's what they're accepting. CHAIRMAN STRAIN: Maybe we ought to defer to their deals and not have the 25 percent in there at all -- MR. LORENZ: That's I guess what I'm advancing is, that was one school of thought that we went through initially with how to Page 137 October 2,2008 approach that. But it -- CHAIRMAN STRAIN: I would just as soon let the agencies work out their -- they may find that they need more than 25 percent and we've hindered them by this. Or they may find they need less and then we've actually burdened the property owner unnecessarily. And I don't know if legally we want be in that position -- MR. LORENZ: And we don't -- remember when I get back to the point that if our off-site alternatives thresholds have been set appropriately to give a better ecological benefit, then we don't want to have a disincentive. So we don't want to set this program up so that the unintended consequences are we have these disincentives to move these preserves off-site when quite frankly it would be better if they were off-site. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: But with Conservation Collier's own lands, they get to choose them and rank them and analyze them up front. With this, they would just be getting them, because that's what the applicant chose, right? MR. LORENZ: I believe the Conservation Collier ordinance is set up such that they have to accept the donation. It's not automatically a given that they have to take the lands. CHAIRMAN STRAIN: Okay. Thank you, sir. Tim, this is going to be odd for you, but you have four minutes. MR. HANCOCK: Thank you, sir. CHAIRMAN STRAIN: Bruce took all your time up because you gave it to him. MR. HANCOCK: Doug, Bill took all your time, so sorry. Couple quick points rather than parse through. And again, Tim Hancock for the record. One of the reasons we're facing a lot of these discussions and we have so many issues with native preserves is we have expanded the Page 138 October 2, 2008 definition of native vegetation to be so far afield from where this started. We are now taking something that is 75 percent Me1a1euca and calling it native. There is a fundamental issue with that. And it's because we call it native for purposes of figuring out the acreage you have to set aside but we don't call it native for the purposes of determining where your preserves can go. Let's pick one definition that truly represents native vegetation, and then everything else can fall in place behind that. But we're not doing that. And I have a serious issue with calling something native that is a Me1a1euca forest with a scattered pine canopy. CHAIRMAN STRAIN: You're experienced with the government process for sure. Under the definition that's in the GMP, if you have a way that that definition can be modified in the LDC to a point where it still meets the intent of the GMP, then fine, you need to bring that forward. But the problem we're having is, between the County Attorney's comments earlier and staffs, we're somewhat tied now, because this got through under a GMP amendment. And honestly, I wish it didn't. But it did, we're stuck, and that's why we're taking so much more time now, so we don't get stuck again. MR. HANCOCK: And I'll attempt to work with a bridge there, if I can. Let me go ahead and hit one of the key points that I wanted to discuss with you, and that is we've talked a lot about how to change the off-site issue. Let me give you the example, a real-world example of why the way it's currently written and even with the proposals we've discussed today it's not going to work. I have an industrial site. The preserve requirement that they have to recreate, because it was impacted and we can't prove that it was legally cleared, property's been in the family for 20 years, they have to Page 139 October 2, 2008 recreate a .37 preserve in the middle of an industrial park. This is a perfect candidate for off-site mitigation. Here comes the problem. Option one is to take the current value of an industrial site at .37 acres, and these sell for 250 to 500,000 an acre, and turn around and write a check to Conservation Collier? Forget it. It's cheaper to plant it. I'll plant it with stuff, I'll lose the land. It's cheaper. So we're going to end up getting a .37 -acre planted preserve in an industrial park instead of getting one or two acres at the Conservation Collier rate of land purchases because we're tying it to market value. It won't work. If you say I can go buy land and give it to Conservation Collier, does anyone know where I can get a .37 -acre parcel out there in the Eastern Lands? Because I don't, they're all five acres. CHAIRMAN STRAIN: Are you familiar with the Corps' mitigation standards in jurisdictional areas? They have a ratio, depending on how valuable the jurisdictional area is. MR. HANCOCK: Yes, sir, UMAM is one process. CHAIRMAN STRAIN: Right. And allow you to buy off-site. Is that something that might be more favorable in this kind of an issue? MR. HANCOCK: I understand entirely The Conservancy's position that we don't want people just to buyout of it and make it an economic incentive just to write a check and be done with it. But if quality-wise we are stepping up by using something like a UMAM process to make an evaluation on a quality basis, why isn't that a good idea? So I advocate that. And with that, I will wrap up my comments. CHAIRMAN STRAIN: Tim, I'm sorry, we do have to cut this short. And for those of you who are interested in the environmental issues, at the end of this meeting today we will be making a motion to Page 140 October 2, 2008 continue on those issues and any remaining ones. But we'll start right back up with those again. And that will be at 12:30 -- you might check to verify this -- but right now it will be 12:30 on December 7th. MS. FABACHER: No, October. CHAIRMAN STRAIN: I'm sorry, October. I keep saying December 7th. MS. F ABACHER: And we won't be taking Pearl -- CHAIRMAN STRAIN: It's Pearl Harbor day. COMMISSIONER MURRAY: You must be thinking about getting bombed. MS. F ABACHER: And excuse me, Mr. Chair, we'll get our lunch before we come, right? CHAIRMAN STRAIN: Well, you can eat your lunch here but we're going to continue with -- at 12: 30 we're having a meeting -- MS. FABACHER: No, no, the point is is that won't include-- CHAIRMAN STRAIN: I'm not going to have the meeting to break for lunch. No, we're going to eat lunch first. MS. F ABACHER: That's what I'm asking. Thank you. CHAIRMAN STRAIN: So anyway, for those of you in the environmental, and you're leaving right now, if you do leave, Tuesday at 12:30 in this room we'll reconvene. So with that, we'll move into the issues involving non-environmental issues, which the first one would -- we'd go all the way back to Page 1. And Phil Gramatges has been very patient. He's been sitting here many, many times expecting us to get to his issue, and now is the day. MR. GRAMATGES: Good afternoon, Mr. Chairman-- CHAIRMAN STRAIN: Good afternoon, sir. MR. GRAMATGES: -- Commissioners. I'm Phil Gramatges, Public Utilities Engineering Department. I'm trying to find in the computer a picture of a properly Page 141 October 2, 2008 landscaped ancillary system. Oh, I'm sorry, my apologies. Of a -- of what we would call an ancillary system. I'll look for that in a minute. But I know that you're busy and we don't have a lot of time, so I don't have a lengthy presentation. We have taken the LDC amendments that we'd reviewed last time. We have implemented the changes that you requested. And I trust that you have had a chance to take a look at them. As far as the first one on the -- to allow the property that is designated fee simple or dedicated by easement, the change was relatively minor. We did it. Do you have any questions that I can answer for you on this? CHAIRMAN STRAIN: Well, I mean, my thoughts last time was that we would have a payment in the form of an impact fee credit or a purchase. And I understand where you're going with this, and that's where you've been trying to go, and so I know why it came out that way. I still think the impact fee credit is the right way to go. MR. GRAMATGES: If I may, Mr. Chairman, the problem is that in some cases we request for donations in areas that are not strictly within our district. They're very near the district in most cases but not within it. So our ability to provide impact fee credits is not there, because they wouldn't have to pay impact fees. CHAIRMAN STRAIN: That's why I said for outright purchase. So we just got done talking about how a developer will have to go off and purchase land based on appraised values of the development zoning after they got their zoning versus prior to the zoning. And for things like conservation mitigation and stuff like that, it seems to me if we're putting the burden on them to have to buy land, I don't see why the government's any different. I still think it's impact fees or outright purchase is still required here. And you and I will continue to disagree on that. I know we have Page 142 October 2,2008 in the past but -- and I understand what you've done, I mean, that's fair, so -- Mr. Murray, okay. COMMISSIONER MURRAY: I will join you on that. CHAIRMAN STRAIN: Any other comments from the panel? There's only two pages to this item. And we need to -- Pages 1 and 2. So I'm looking for input from the planning commission. Mr. Schiffer, Page 2? COMMISSIONER SCHIFFER: And Phil, it's looking at paragraph five, just to make sure that it reads good. And the words gross acreage and site and all that are kind of mixed together. Would you have a problem changing -- it's kind of down --let's see, one, two, three, four, fifth, the fifth sentence where it says, it may be reduced by two times the gross acreage of the -- and I just think instead of site, use the word donated portion, because -- MR. GRAMATGES: I'll be happy to make that change. COMMISSIONER SCHIFFER: -- site is the big gross site. We're using the word gross and site, we could get confused there. And obviously you can't deduct twice the gross site. MR. GRAMATGES: Sure. We will do that. COMMISSIONER SCHIFFER: That's it. CHAIRMAN STRAIN: Anybody else? (No response.) CHAIRMAN STRAIN: Okay, is there a motion from anybody on the planning commission? COMMISSIONER SCHIFFER: I will make a motion. I move to approve -- and I guess how do you want us to cull it out, the -- CHAIRMAN STRAIN: Well, it's LDC Section 4.07.02.G.4.a. You need a motion to either recommend approval or denial. COMMISSIONER SCHIFFER: To recommend it for approval as just amended. CHAIRMAN STRAIN: Is there a second to the motion to Page 143 October 2, 2008 approve? COMMISSIONER MURRAY: I'll second it. CHAIRMAN STRAIN: Okay, the motion's been made to approve the language as amended and seconded -- yes? MR. GRAMATGES: Mr. Chairman, before you complete the vote, a recommendation from our attorney. Can you help me with that, Jennifer? CHAIRMAN STRAIN: Hi, Jennifer. MS. BELPEDIO: Good afternoon. Jennifer Be1pedio, Assistant County Attorney for record purposes. I just would like to suggest a modification to the motion that the language -would read, donated or dedicated site. That's just for consistency with the remainder of that section. COMMISSIONER SCHIFFER: Okay, that's fine. CHAIRMAN STRAIN: Okay, but it says that in the section, doesn't it? It says, when a portion of the gross project acreage is donated or dedicated in lieu of payment for the purpose of providing raw water, et cetera. So now what is it you're trying to tell us? MS. BELPEDIO: I was just trying to make sure that it's consistent with the remainder, so I had suggested donated or dedicated. But I do see what you are referring to. And that may be fine as well. CHAIRMAN STRAIN: Only because you're starting in a different tact than we have in the past. We basically look at the language, we're either for or against the amendments to the language and we reference the LDC section, and we don't get into outlining every specific change to the language. We can if it's necessary, but if it is, you're setting a different precedent for the whole review. MS. BELPEDIO: I would like to stay consistent with your precedent. So I will withdraw my request. Thank you. CHAIRMAN STRAIN: Thank you. Page 144 October 2, 2008 So the motion's been made to recommend approval of 4.07.02.G.4.a, as supplied to us in the changes on the documentations on Page 2, and this is August 22nd, 2008. COMMISSIONER SCHIFFER: Yes. CHAIRMAN STRAIN: I asked for discussion. My only point is I am going to recommend denial of this. I do not feel it's consistent with the GMP because it's not providing an impact fee credit or an outright purchase to the landowner, and I don't see that additional burden allowed in the GMP. So with that in mind, that's my position. On all those in favor of the motion to approve, please signify by raising your hand and saying aye. COMMISSIONER MIDNEY: (Indicating.) COMMISSIONER SCHIFFER: (Indicating.) CHAIRMAN STRAIN: One, two. Two in favor. Those opposed, same sign. Aye. COMMISSIONER HOMIAK: (Indicating.) COMMISSIONER CARON: (Indicating.) COMMISSIONER KOLFLAT: (Indicating.) COMMISSIONER VIGLIOTTI: (Indicating.) COMMISSIONER MURRAY: (Indicating.) CHAIRMAN STRAIN: One, two, three, four, five, six opposed. Motion fails 6-2. Steve, do we need another motion to recommend denial or does the fact that the motion for recommending approval failed. MR. WILLIAMS: To be safe, I would go ahead with an additional motion. CHAIRMAN STRAIN: Is there a recommendation? COMMISSIONER VIGLIOTTI: So moved. CHAIRMAN STRAIN: Mr. Vigliotti made a motion to deny? COMMISSIONER VIGLIOTTI: Deny. Page 145 October 2, 2008 COMMISSIONER MURRAY: Second. CHAIRMAN STRAIN: Seconded by Mr. Murray. Is there any discussion? (No response.) CHAIRMAN STRAIN: The motion being made, and from my position is that it's inconsistent with the GMP. It's an additional tax without a basis. I don't know what the rest of you feel, but that's my position on it. COMMISSIONER VIGLIOTTI: I agree totally. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Well, I think if you're going to do it, yeah, you need to be able to do it with impact fees or an outright purchase. I still go back to number four. I think our biggest problem is that if you want to make these demands, then you ought to be able to support them. And our biggest problem is that nobody wants to step up to the plate and actually support them. Number four gives you all the authority you need, if you can support the need. CHAIRMAN STRAIN: Okay. With that -- Mr. Schiffer? COMMISSIONER SCHIFFER: Mark, just to speak against the motion. There's nothing here that's requiring the person to do it. This is just giving somebody the option, essentially a reward, something that it won't mess up his development rights if in fact he does deliver this. So this isn't a gun to a head, this is just a way where somebody could be compensated for doing this. CHAIRMAN STRAIN: If you want to believe that, Brad, that's fine. COMMISSIONER SCHIFFER: I do believe that. CHAIRMAN STRAIN: Okay. Anybody else? (No response.) Page 146 October 2, 2008 CHAIRMAN STRAIN: All those in favor of the motion to deny, please indicate by raising their hand and saying aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. All those opposed? COMMISSIONER MIDNEY: (Indicating.) COMMISSIONER SCHIFFER: (Indicating.) CHAIRMAN STRAIN: Two. Motion carries 6-2. COMMISSIONER MURRAY: 6-2? CHAIRMAN STRAIN: There's eight of us. COMMISSIONER MURRAY: Okay, sorry about that. CHAIRMAN STRAIN: Next item up is Page 3. It's a discussion on the ancillary systems language being added that was here before us in the past. There's been some changes in our book. Comments from the planning commission? (N 0 response.) MR. GRAMATGES: If I may, Mr. Chairman? CHAIRMAN STRAIN: Yes, sir. MR. GRAMATGES: Once again, Phil Gramatges. On the monitor here, I have given you a picture of a typical landscaped, properly landscaped ancillary equipment site. Now, we have made numerous changes to the language in this particular request as a consequence of the discussions we've had previously. And I trust that I have met all your requirements. CHAIRMAN STRAIN: We can start with the first -- I guess we'll go right back to the beginning then. We're on Page 4 is where we start with this one. Any questions on Page 4? Page 147 October 2, 2008 (No response.) CHAIRMAN STRAIN: Page 5? (No response.) CHAIRMAN STRAIN: Page 6? COMMISSIONER SCHIFFER: I do, Mark. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: And Phil, it's the same issues, the architectural standards down at the bottom. One of the things you want to get away from is in D.1 is the standardized design. You don't want -- well, what's the problem you're having with the standardized? All it's saying, it has to just meet the provisions of the architectural standards. Is that -- MR. GRAMATGES: Well, sir, the issue is that, as you can see here, there's nothing that can be seen outside. And if we want to put columns and we want to put embellishments in this building, the cost of this building is going to be unreasonably high, where no one is even going to be able to see it. COMMISSIONER SCHIFFER: Obviously I don't even see a building, if there is one there. Is there a building? But I do know sites where you can see a building. MR. GRAMATGES: True, but in most cases these buildings are extremely small. And to be able to put some of the architectural standards that are listed here would require a tremendous amount of work and cost that I don't -- in fact, they even look good in most cases because of the size of the building. And that's the intention of doing this. COMMISSIONER SCHIFFER: Okay. And then the other one you want to get away from is the screen wall on something like -- and this is a good example. See the wall behind it in the neighborhood? It's a nice block wall. In your case it's a chain link fence with some black mesh on it. Page 148 October 2, 2008 MR. GRAMATGES: Yeah, that's correct. COMMISSIONER SCHIFFER: So the standard you're trying to exempt yourself from would require that to be a nice block wall, much like the community has in the back. MR. GRAMATGES: Well, if I was to read 5.05.08.D, it refers specifically to storage buildings and to mercantile construction. Let me see, I have a copy of it here. So I don't think it even applies, that's the whole thing. COMMISSIONER SCHIFFER: You could be right there. But one part of that is the standardized design. MR. GRAMATGES: See, under this 5.05.08.D.1, standardized design buildings must meet the provisions of this code. Well, fine. Self storage buildings is two. And three refers to mercantile. It even talks about offices and so on. COMMISSIONER SCHIFFER: So then why are you trying to exempt yourself from a part of the code that doesn't apply to you? MR. GRAMATGES: Well, we can certainly take that out. COMMISSIONER SCHIFFER: That doesn't make sense. The standardized design is the only one I think that does apply in that section. But -- in other words, you're really referring to self-storage buildings. MR. GRAMATGES: That's right. That's what we're trying to make sure, that no one believes that this is self-storage building, I guess. COMMISSIONER SCHIFFER: Okay. MR. GRAMATGES: But like I said, if you feel that this reference is unnecessary, we can take it out. COMMISSIONER SCHIFFER: Yeah, I don't think you're a self-storage building. And are you getting somebody confusing you with one? I mean the -- Page 149 October 2, 2008 MR. GRAMATGES: We just want to be as specific as possible. And so you suggest that we remove where it says and 5.05.08.D.2? We would remove that. COMMISSIONER SCHIFFER: Okay. And the screening section, a little bit above that, 4.06.05.B.6, is that what you've been complying with? MR. GRAMATGES: Certainly, that's already in the -- we're not changing that. COMMISSIONER SCHIFFER: And that's what we're seeing here. MR. GRAMATGES: Yes. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah, I just had a question. The mesh fencing to the right of the screen, is that a gate or is that just a -- MR. GRAMATGES: Yes, ma'am, that's a gate. That's the access gate. And you will notice that it has black slats there. We can put them any color that the neighbors want. Most cases they want black for some reason. COMMISSIONER CARON: I thought it was a gate and that's why it wasn't planted. That would be the question, is why didn't you plant that side and then you wouldn't have to have a fence, you know, or you wouldn't be looking at the fence. But it's actually a gate. MR. GRAMATGES: Yes, ma'am. CHAIRMAN STRAIN: Any other questions? Mr. Murray? COMMISSIONER MURRAY: More out of curiosity than anything else. The subject wellfie1d, that's what it's called -- what is it called? MR. GRAMATGES: Well, this in particular is a lift station. COMMISSIONER MURRAY: Okay. Wow. MR. GRAMATGES: They all look about the same. Page 150 October 2,2008 COMMISSIONER MURRAY: Yeah, okay. CHAIRMAN STRAIN: It's what's behind the fence that makes a difference. COMMISSIONER MURRAY: Yes, you betcha. You have a truck there, you have green grass, you have a road, no driveway. Whose property is that truck parked on? MR. GRAMATGES: That's a county property. That's a county truck. COMMISSIONER MURRAY: I'm sorry, did I misstate that? Whose property is that truck parked on? MR. GRAMATGES: Parked on the right-of-way. That truck-- part of that -- I'm sorry, sir. COMMISSIONER MURRAY: That grass is the right-of-way? MR. GRAMATGES: The front of the structure there, between that structure and the road, is right-of-way. The truck is partly parked on the right-of-way and the easement. COMMISSIONER MURRAY: Oh, so there's an easement on somebody else's property to get to that. MR. GRAMATGES: Yeah, there's an access easement to enable us to get to the station. COMMISSIONER MURRAY: Okay. CHAIRMAN STRAIN: Any other questions on Page -- where I left off on Page 6? (No response.) CHAIRMAN STRAIN: Page 7 I think are the only other new changes. Any other questions on the rest of this document? (No response.) CHAIRMAN STRAIN: Phil, I have one, and that's 951. You got a series of stations of some kind going down along 951. They're rather large. How would they fit into the requirements of this portion? MR. GRAMATGES: The stations, the wells that you see along Page 151 October 2, 2008 951 are on the right-of-way for the canal. The South Florida Water Management District tells us how we can landscape or not landscape those. There is relatively little landscaping there, because that's what they require. Because they need to be able to drive in front of that well. And we just follow the instructions in order to do that. Now, keep in mind that that work is not completed yet. There's still some more work to be done there. And in fact our transportation department is working with Better Roads to improve the look and improve the accessibility of that right-of-way. So in, I would say, probably six months to a year it will look very different. But it will not look exactly like this, for the reasons I just explained. Those other wells that are part of that wellfie1d that are further inland will look differently. CHAIRMAN STRAIN: Do they tie -- there was a large pipe buried prior to those sites going in along 951. I'm talking south of I -7 5 as you go down towards U.S. 41. Do those tie into that large line that was installed there first? MR. GRAMATGES: No, they don't. In fact, there are two projects there. One is the wellfie1d and the other one is a potable water line that is bringing water from the south water plant, which is just north ofI-75, all the way down to 41. CHAIRMAN STRAIN: So does either of those facilities come into play in regards to this section of the code that we presented with today? I understand your issue about South Florida. Is that the one that dominates the location there? MR. GRAMATGES: Yes. Now, it's an interesting situation, because we own the land but they own the right-of-way, so they dictate what we can do or do not do there. CHAIRMAN STRAIN: Okay. Anybody have any other Page 152 October 2, 2008 questions? Mr. Schiffer? COMMISSIONER SCHIFFER: Just on that, will those be landscaped? MR. GRAMATGES: They are going to be landscaped, but not exactly like this. As I said, there are some modifications that we still need to do there, and specifically I believe that they intend to pave on top of that berm. And that's the transportation department is doing that. It's not even our public utilities project. But once again, I need to make sure that you understand that they're not going to look exactly like this, not at all. CHAIRMAN STRAIN: Anybody have any other questions on this? (No response.) CHAIRMAN STRAIN: Are there any public speakers on this one? (No response.) CHAIRMAN STRAIN: Okay. I meant to ask that last time, but it was a short paragraph, so -- okay, with that, I will entertain a motion for LDC Sections 1.08.02, 4.06.03, 4.06.05, 5.03.02, 5.05.08 -- COMMISSIONER SCHIFFER: As amended. CHAIRMAN STRAIN: -- 5.05.12 and 10.02.03, all as amended, and a finding of either consistent or inconsistent with the GMP. COMMISSIONER SCHIFFER: So moved. CHAIRMAN STRAIN: Well, you've got to pick one. You made a motion to approve -- COMMISSIONER SCHIFFER: That they're consistent with the GMP -- CHAIRMAN STRAIN: -- cQnsistent with the GMP. COMMISSIONER SCHIFFER: Yes, it is. CHAIRMAN STRAIN: Okay, is there a second? Page 153 October 2,2008 COMMISSIONER VIGLIOTTI: I will second. CHAIRMAN STRAIN: Mr. Vigliotti seconded. Is there any discussion? (No response.) CHAIRMAN STRAIN: All those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: The motion carries 8-0. Thank you for your patience, Phil. You've been here many, many times, and probably won't have to come back for a little while, I hope. MR. GRAMATGES: Thank you, Mr. Chairman. MS. FABACHER: Excuse me, Mr. Chair, Bill Lorenz has stayed behind to cover for Stan because Stan had to go to another meeting. Would it be possible to hear him out of sequence so we just don't tie him up for the rest of the afternoon, Mr. Lorenz? CHAIRMAN STRAIN: Anything to save the taxpayers money of the highest paid individual in the county, we certainly would want to do -- MS. F ABACHER: Thank you, Commissioner. So we would move to Page 133. And this would be Section 10.02.04, requirements for plats. And this was the one that came back because you asked him to modify it for the -- Stan for the preserve setbacks. You'll recall that there was a big case over preserves, a lawsuit Page 154 October 2, 2008 and everything. And what you asked him to do was just take out all the 10 and 25- foot numbers. And I think if you see -- CHAIRMAN STRAIN: It's been done. Page 134 is the only changes from last time. And I guess we're being asked if they're consistent with our recommendations from last time. I don't see any problems. Does anybody else have any questions on Page 134? Kind of cleans up some ambiguous language from before. Any comments from anyone? (No response.) CHAIRMAN STRAIN: Any public speakers wishing to talk on this issue? (No response.) CHAIRMAN STRAIN: Hearing none, is there a motion to recommend approval, denial, inconsistent, consistent with the GMP for Section 10.02.04 as amended and presented to us today? COMMISSIONER KOLFLAT: For approval. CHAIRMAN STRAIN: Mr. Ko1flat made the motion. Is there a second? COMMISSIONER VIGLIOTTI: So moved. CHAIRMAN STRAIN: Mr. Vigliotti made the second. The question was for approval and consistent with the GMP, is that -- COMMISSIONER KOLFLA T: Yes. CHAIRMAN STRAIN: Both the first and second acknowledge that? COMMISSIONER VIGLIOTTI: Yes. CHAIRMAN STRAIN: Okay. Discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER HOMIAK: Aye. Page 155 October 2,2008 COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 8-0. Bill, that has got to be the easiest one you ever handled. You can certainly thank Stan for that. And Mr. DeRuntz is here, so we'll move back to Page 23. And I guess the first thing we ought to do is make sure we're all on the right page. Trying to find the references. 8/9/08, is that the most recent one you've got, Mike? MR. DeRUNTZ: Yes, sir. CHAIRMAN STRAIN: Okay. That's basically a little bit ofa clarification from last time. Any questions on Page 23? (No response.) CHAIRMAN STRAIN: 24 and 25? We'll go through all the pages. Anybody have any questions at all? (No response.) CHAIRMAN STRAIN: The changes that occurred on Page 24-- on number four and five, Mike, four in particular, the last line that says 5.05.10.C.1.-6, looks like a negative six, period. Do you mean one through six? MR. DeRUNTZ: Yes, sir. CHAIRMAN STRAIN: Okay. Then you want the period after the one taken out, right? MR. DeRUNTZ: Yes, sir. Page 156 October 2,2008 CHAIRMAN STRAIN: Okay. I know it's a small thing, but I wanted to make sure it got right before we finally got into it. And the purpose of the corrections was to make sure that we could do camping in that area and that this accomplishes that. MR. DeRUNTZ: Yes, sir. CHAIRMAN STRAIN: Okay. Anybody else? (No response.) CHAIRMAN STRAIN: Looks like they can camp and race at the same time. So is there a -- any speakers? Anybody from the public wishing to speak? (No response.) CHAIRMAN STRAIN: Okay. With that, we'll entertain a motion to recommend approval or denial consistent or inconsistent with the GMP for LDC Section 2.03.04. COMMISSIONER MIDNEY: (Indicating.) CHAIRMAN STRAIN: Motion made by Mr. Midney for -- COMMISSIONER MIDNEY: That it's favorable and that it is consistent. CHAIRMAN STRAIN: Okay, is there a second? COMMISSIONER MURRAY: (Indicating.) CHAIRMAN STRAIN: Mr. Murray made the second. Discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MIDNEY: Aye. Page 157 October 2,2008 COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 8-0. Thank you, Mike. MR. DeRUNTZ: Thank you, sir. CHAIRMAN STRAIN: Carolina is next, Page 49. You want to refresh our memory on what we did here? MS. VALERA: Sure. Carolina Valera, Principal Planner with Comprehensive Planning. Where we left off, this is, as you may recall, it's an amendment to include the affordable housing density bonus by right in the Immoka1ee area, urban area. And is part of the -- it was part of the EAR-based amendment. And it was incorporated into Immoka1ee area master plan over Growth Management Plan. CHAIRMAN STRAIN: If you don't mind, let me interrupt just for a minute. I think this did -- the last time it came to us, we were going to discuss it but Mr. Midney wasn't here. MS. VALERA: That is correct. CHAIRMAN STRAIN: We all decided it wouldn't be fair to discuss this one because it has a huge impact on Immoka1ee, Paul, . without you present. So we're basically going to start over and start from scratch to get your input today. COMMISSIONER MIDNEY: Good. CHAIRMAN STRAIN: Okay? Because this has a lot different outcome than we all may have thought when we first initiated discussion with you way back when. And I think Page 50 is where we want to focus. And if I'm not mistaken, we centered around the number two, affordable workforce housing bonus by right and the broadness in Page 158 October 2, 2008 which this paragraph was written. Basically they could go into any zoned section of Immoka1ee andjust add density. I'm not sure that all those sections are really applicable to that kind of by right intrusion. So it seemed to be of a concern to a lot of people in our last discussion, including staff. MS. VALERA: That is correct. And as you may recall, we were concerned with the fact that the LDC will have to be further amended because, as we were discussing last time, for example, in the agricultural district you will have to have exceptions and added language, because there are -- there will be inconsistencies between what residential development, you know, permits and what the agricultural district permits and prohibits. And so at that time we discussed if this is maybe the right time to do this. As we mentioned to you before, there is a soon to be -- as we understand it, as staff understands it -- CHAIRMAN STRAIN: You said the word soon, be careful. MS. VALERA: As we understand it, there will be an amendment to an Immokalee area master plan element. And I see Bob Mulhere is here. And I understand his firm has been tasked with that amendment. And they will be making changes to our Immokalee area master plan element, and also they will be bringing LDC amendments that I'm not sure yet, you know, what staff hasn't seen those changes but might actually change the district, the zoning district within the Immoka1ee area. So the last time we discussed ifmaybe we should halt, you know, wait for those amendments to come to you, before you, and at that time maybe then talk about the density bonus by right, or of course -- and also Mr. Strain, you asked that we wanted to hear Mr. Midney's opinion on if this should be done at this time. Let me just warn you that if you decide to wait, we will have to either, you know, go back to the Growth Management Plan and delete Page 159 October 2,2008 the density bonus by right in the Immoka1ee area master plan element, or -- again, I mean, it's up to you -- or recommend to the board to approve it as it is proposed. CHAIRMAN STRAIN: While Paul -- could someone put the language in the GMP up that's in discussion here. MS . VALERA: Yes, I can do that. CHAIRMAN STRAIN: Paul, I'm sure you want to talk on this. COMMISSIONER MIDNEY: Yeah, as I remember this first coming up, we were originally proposing to have affordable housing density bonus by right in the whole county. And there was a lot of objection to that and from other parts of the county other than Immoka1ee. In Immoka1ee I think it was the consensus, while we really need more affordable housing, because there's a lot of people who are doubled and tripled up and who can't afford housing, and that's why we sort of adopted a different standard for Immoka1ee than what we were thinking of doing for the rest of the county. That's my recollection of the history of it. Now the economic conditions have changed so much, so many people -- when I go and visit the neighborhoods where we have affordable housing, there are just so many empty units. And not just because we're not in season, it's just that there are much fewer jobs and the people have left. And I'm assuming that when the economy gets better, they'll be an increased demand again for affordable housing in Immoka1ee. But right now the situation is just sort of in a shambles, and I'm frankly, a little bit confused as how to proceed. CHAIRMAN STRAIN: Okay, well, I think before we go too far, Bob, you're on the CRA -- you're on the master plan or some part of the committee out there. Why don't you talk to us about where their mindsets are at. Page 160 October 2,2008 MR. MULHERE: For the record, Bob Mu1here with RW A, here this afternoon on behalf of the CRA advisory board as well as the Immoka1ee area master plan visioning committee. And I guess also on behalf of the CRA Executive Director as well, Penny Phillippi. Both committees did discuss this item, as well as the previous item. I didn't speak on the previous, because it was rather minor, and they supported it as well. But this item, they did discuss it and take a vote, and the vote was in support of moving forward with adopting this amendment as it was written. And I should say that the discussion centered on me suggesting to them pretty much what Carolina had indicated, that we probably would have a comprehensive set of -- sort of a use both words -- but a comprehensive set of Growth Management Plan amendments for the Immokalee area master plan within 12 months to 18 months at the longest, adopted. And as a result of that -- probably 18 months to be adopted, but 12 months to be transmitted -- and as a result, did they want to wait on this until that occurred, because, you know, did there need to be some adjustments and so on and so forth during that process. Their feeling was no, and their vote was in support of moving forward as it was written. Thank you. CHAIRMAN STRAIN: For the record, I did get an e-mail from Penny Phillippi. I don't know if I've said that right or not. And it says, Mark, the CRA advisory committee and the IMPVC voted today to support the LDC amendments referenced in the e-mail below. Thank you again for your consideration and time on this amendment. And the amendment that's being referenced is the one in discussion here today. So I understand that they voted for it. I just wanted to make sure that we had Mr. Midney's input. But I also am concerned that there's Page 161 October 2, 2008 no compatibility language here, so that -- I know there are some sections of Immoka1ee that have single-family low density housing, such as there's estates sections and stuff like that. With this language, someone could go in next door to an empty lot or even a lot where they wanted to bulldoze a house down with no criteria in the code to protect compatibility of that single-family next door, and put 12 to 16 units per acre. And they'd have a right to do it that we now could never take away, because once you give someone a right, to take it away it's really tough. And, you know, Immoka1ee seems like they want that. I just think it's real difficult ifnot everybody's voice was heard who may own those estates homes in those other areas, because this could cause them a lot of concern. And for that reason it really bothers me. I understand the CRA committee met. I understand they have a master plan committee that's been going on for years. And I also understand, though, on committees that take that long to decide things, the public interest wanes. And if you're living in an estates single-family lot, the last thing you would suspect that something was coming down the pike like this, nor expect it to. And I'm real concerned, Paul, that in some of these very, very low density areas, these people don't know this is going through. And I understand the CRA board does. I'm not sure though that everybody is aware of it. And we have to look to you for guidance on this. And Brad, do you have any comment? COMMISSIONER SCHIFFER: Well, just to go over the density. Carolina, according to this, with the by right somebody could add four more units to the density that exists, right? MS. VALERA: That is correct, to the underlying zoning. COMMISSIONER SCHIFFER: So in the Estates there's one unit allowed per site. So wouldn't essentially what would happen there, Page 162 October 2, 2008 wouldn't it be -- would they get eight units or would they get five units? MS. VALERA: They will get five units. COMMISSIONER SCHIFFER: Okay. But what Mark is saying is true is that somebody with an Estates home could essentially build a quadrup1ex in the back yard. COMMISSIONER MIDNEY: An estates home in Immoka1ee? What part of Immoka1ee are you talking about? CHAIRMAN STRAIN: I don't know, you guys, it was referenced in here -- MS. VALERA: I think he's just, you know, as an example. But yeah, I think you're right, there's no estates district in Immoka1ee. CHAIRMAN STRAIN: But why do we -- okay, the language in here says estates so I assumed there was some. But if there isn't, say it's RSF -1. COMMISSIONER SCHIFFER: Right, same thing. A smaller lot a guy can go build at a density of five units per acre then, right? MS. VALERA: I stand corrected. Actually we have a little bit of estates district in Immoka1ee, in the Immoka1ee urban area. COMMISSIONER SCHIFFER: But let's take the RSF-1. It's a single-family lot. I think historically it's 75 by 100, right? There's so many units per acre. So essentially you'll be able to start adding multi-family units to sing1e- family units in Immoka1ee immediately. MS. VALERA: Potentially, yes. COMMISSIONER SCHIFFER: But the most you could ever get was eight by right. MS. VALERA: That is the key. I mean, the key word here is by right, or -- you don't have to go to any type of process. You have your underlying zoning, and whatever that zoning allows you to have, you add to that four units. Page 163 October 2, 2008 COMMISSIONER SCHIFFER: So the RMF-6, for example, I could now add four, so I have 10 units per acre. MS. VALERA: Exactly. COMMISSIONER SCHIFFER: Now, the public hearing -- you're allowed to add up to eight units per acre. MS. VALERA: That is correct. COMMISSIONER SCHIFFER: And there's no -- do you see a potential way to go over our 16 units? MS. VALERA: Up to 16. That's what the Immoka1ee area master plan allows you to have, up to 16 units per acre in the Immoka1ee urban area. CHAIRMAN STRAIN: Mr. Ko1flat? COMMISSIONER KOLFLAT: I'd be interested in what Paul's opinion is relative to this amendment, whether we should go forward with it or not. COMMISSIONER MIDNEY: My opinion is when you really look at the history of Immoka1ee, Immoka1ee is a very unique place. It's always been -- when I was first introduced to Immokalee to come down here when I was thinking of relocating my family to Immoka1ee, and the lady who was actually a recruiter for nursing for the clinic, she was with all the migrant clinics in Florida. And she said, you'll really like Immoka1ee, it's a real farm worker town. And she wasn't saying that in a derogatory way. And I think that that is our character. That's been historically our character. That's what the vast majority of the people who live in Immoka1ee now and who have historically, that's the character of the town. And so I think at this point in time people are comfortable with that. They're not looking to change the nature of the town or the way the town looks. And that's why I think so many people are -- so few people or no people have said that they're uncomfortable with this Page 164 October 2, 2008 because this is just kind of the way we look at where we live. CHAIRMAN STRAIN: One of the clarifications I'd like on this. If you've got four base units and you can add a density of four more units to get you to eight and you achieve that added four as a result of this rewrite, which is your density -- your affordable housing by right, number three says, density achieved by right shall not be combined with density achieved through the rezone public hearing process. Does that mean that if you got four and four, you're already got eight, you can't get any more? MS. VALERA: No, unless you go through the public hearing process. CHAIRMAN STRAIN: It says density achieved by right shall not be combined with density achieved through the rezone public hearing process. If it can't be then, how -- MS. VALERA: You cannot mix and match. That is what that number three is about. If you want to have more than eight units per acre, you have to go through the hearing process, through the public hearing process. If you just want to add four units to whatever density you have, base density you have, then you can achieve that by right. But if -- and up to eight units, as Mr. Schiffer said. If you have only one, you can only have five units per acre by right. If you have three, then you will only have seven units per acre that you will be allowed under this provision by right. Anything more than that, if -- and as you were saying, Mr. Chairman, up to 16 you will have to go through the public hearing process. COMMISSIONER SCHIFFER: Mark, on that? CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: Carolina, doesn't that also mean Page 165 October 2,2008 that if I went through the public hearing process and got 12 units I can't then administratively add four to it? MS. VALERA: No. COMMISSIONER SCHIFFER: That's what I think that means, yeah. Thank you. MR. WEEKS: Mr. Chairman? CHAIRMAN STRAIN: Yes, sir. MR. WEEKS: David Weeks of the Comprehensive Planning Department. Let me try to clarify a couple points. What number three on Page 50 provides is that u!lder no scenario can you combine public hearing process and the administrative process. If you go through the administrative process, the density by right as provided here, you cannot then come in for the public hearing process. Nor can you come in for the public hearing process first, then come back for the administrative. You cannot combine the two, no matter which comes first. You make your choice and that's what you get. You cannot combine the two under any means. CHAIRMAN STRAIN: But you get different densities, depending on which one you want to go through; is that right? MR. WEEKS: Under either scenario, through the affordable housing provision -- short answer, it is different. I had to think that through. Under the density by right, you can achieve the four units per acre base density and four -- maximum of four as the affordable housing bonus, for a total of eight units per acre, period. That's your maXImum. Whereas under the public hearing process you might qualify for the base of four and then eight units per acre through the public hearing process for a total of 12. And also through the public hearing process, if you qualify for any other bonuses those could be added as Page 166 October 2, 2008 well. CHAIRMAN STRAIN: You can't mix and match. MR. WEEKS: But you cannot mix and match the administrative and the public hearing process for affordable workforce -- CHAIRMAN STRAIN: So if you had a base of four and you wanted an administrative of four and you wanted a public hearing process for four more, you couldn't do that. MR. WEEKS: That is correct. CHAIRMAN STRAIN: Okay, that's what I'm getting at. MR. WEEKS: Let me -- we discussed this at staff level trying to look at all the different angles. If you had first come in for the base of four and then the four for affordable workforce housing bonus by right and then you decided, you know, I'd really like to have eight units per acre for the affordable workforce housing, I would say you could. But when you came through the public hearing process, you would be starting all over. You would in effect be undoing your administrative approval. CHAIRMAN STRAIN: Okay. For those people in Immoka1ee that live in areas that aren't of a density greater than one or two units per acre, or they're in the rare estates, apparently there's not much there, or they're living on ago land that takes one to five or greater, whatever it is out there, how have they been told about what's happening here today? And I'm just curious what kind of notification. Because I don't see them attending that many public meetings and having come through with no public comment. It's just -- because this is a radical change to a neighborhood. This would be a totally different concept. And I live in a very sparsely populated neighborhood and we have these problems that we argue about all the time. But this is intense. This really ups the ante for a regular neighborhood. I'm just amazed that -- I just want to make sure everybody is understanding Page 167 October 2, 2008 this. MR. WEEKS: Sure. CHAIRMAN STRAIN: I don't know what you've done to notify people. MR. WEEKS: The notice process was the same process for any other GMP amendments, and that is the full page legal ad in the Naples Daily News a total of six times for the Growth Management Plan amendments. For the Immoka1ee community specifically there's been no extra notice other than when this matter was considered by the -- when the Growth Management Plan amendment was vetted before the Immoka1ee Area Master Plan Visioning Committee, whatever notice they provide for their hearings. But no property, no letters directly to property owners, no ads in the Immoka1ee Bulletin or other special means of notice. And for that matter, going back to the GMP amendment, as Mr. Midney correctly stated, it began as a countywide process, it did not start out as a density right provision just for Immoka1ee. And I can tell you, we received quite a bit of input from the Estates area in particular CHAIRMAN STRAIN: Oh, yeah, I'm sure you would. MR. WEEKS: -- objecting to the amendment. CHAIRMAN STRAIN: But knowing the mindset of people that live in a low density area and what they're trying to enjoy, which is a little bit of space, quietness and maybe nature on occasion, I just find it hard to believe everybody that is involved in this and may be imposed that way have been notified and are understanding what's happening. And that's why I'm so cautious, is because if we put this into play, it's one you can't take away very easily. MR. WEEKS: Commissioners, I would respectfully remind you that when the GMP amendment was going forward, staff did not Page 168 October 2, 2008 support this amendment, and for some of the reasons that you've expressed, Mr. Chairman. We were very concerned about the lack of ability for compatibility considerations through the process of administering a density by right provision, the lack of any type of notice, and even if there were -- notice to employment of this process. And even if there were, it would not be meaningful notice. It doesn't do any good to tell someone that there's a site development plan that is only subject to administrative approval that the process is underway. Because their objection is merely to come in and tell staff I disagree with this. All we can do is say thank you very much. They comply with the requirements we're bound to approve them. CHAIRMAN STRAIN: I noticed in the process there's no additional criteria for compatibility, for, you know, trying to work out things like that. How would anybody -- how would staff judge it from that perspective? Or would they even be able to? MR. WEEKS: We would not. It'd be strictly a matter of if you meet -- typical for any other LDC requirement, if you meet that requirement, we must approve it. You meet the setbacks, all the dimensional standards, et cetera. CHAIRMAN STRAIN: Mr. Vigliotti? COMMISSIONER VIGLIOTTI: I'm sort of agreeing with you, but my opinion is I want to leave it up to Paul. Pau11ives there. We decided to wait for him for this, and I'd like to hear his input. CHAIRMAN STRAIN: I certainly -- and Paul, no matter what way I vote on this, my deference is always to try to understand your perspective from Immoka1ee, because you live there and we certainly -- I value that a lot. My concern is that I don't know if all the people that could be negatively -- and there's going to be some positive of course -- but Page 169 October 2, 2008 those that can be negatively imposed upon really understand what this means without additional criteria in the code for compatibility and issues like that. I certainly would love to hear some kind of suggestion that there's a way to go out to those sections of the community to see if there's any concern, and not just take a public meeting that may be so worn out by the attendees that not the public who needs to be represented is truly represented there. What do you think, Paul? I mean, do you have areas of the community and neighborhoods where if they had a HOA or a neighborhood meeting where this could be discussed and you could get additional input, is that possible? COMMISSIONER MIDNEY: Well, you know, this did come out, I guess it was about three years ago? When was this originally proposed? CHAIRMAN STRAIN: I don't know, it's been a while. COMMISSIONER MIDNEY: But it got publicity then, you know, in Immoka1ee. You know, we were talking about it. And then it kind of died down for a couple of years, and now it's back now. So it's really had two times where it's been fairly well publicized. But in Immoka1ee we don't have a daily newspaper. There's not a lot of -- you know, a lot of civic participation the way there is in Naples. And our meetings of the Immoka1ee master plan committee have almost all been in the daytime, which is a real disadvantage. So, you know, there may be some people out there who would object if they got wind of it and haven't, but I think that if there was real opposition out there, somebody would have gotten wind of it by now. CHAIRMAN STRAIN: Okay. And I would have felt more -- I know it's in the GMP, so it more or less is destined to be. But it doesn't say in the GMP that we have to ignore compatibility requirements to Page 170 October 2,2008 implement it either. And without any of those coming forward, it's a little harder to swallow. Because I would think at least you'd want some fences, walls, buffers or something between changes in density that are radical. I mean, a couple higher units here and there is one thing. But going from one to five or six units is a concern. Go ahead, Bob, and then Mr. Schiffer -- go ahead, Brad, go ahead first. COMMISSIONER SCHIFFER: And Mark, one thing is you really are starting to picture some poor guy out in the country getting ambushed by this, but it's really only under the Immoka1ee urban area, as defined in their map. CHAIRMAN STRAIN: That's a big area. COMMISSIONER SCHIFFER: It's a big area but it is essentially their urban area. And that may be what this is trying to create. CHAIRMAN STRAIN: Bob, did you want to -- MR. MULHERE: I just have a question. For the record, again Bob Mu1here, but not speaking on behalf of the Immoka1ee Area Master Plan Visioning Committee or CRA, speaking only for myself. I had a chance just to briefly talk with David just a few minutes ago. And I just want to make sure that I understood. The way that it's written and the way that the compo plan was written, it says you can get up to four units bonus from the base of four. And I wanted to make sure that everybody understood that that is referring to the GMP base of four. So that if you have RSF -1 zoning, you're not limited to five, according to that language. You go up to four plus a bonus of four. CHAIRMAN STRAIN: So now an RSF-1 would have eight units per acre? MR. MULHERE: I would want to get that clarified, because I just want to make sure that I understand it, the way that -- Page 171 October 2, 2008 CHAIRMAN STRAIN: I'd like to know how you explained it to the CRA board. MR. MULHERE: I didn't. I had no discussion on the content. I simply asked them if they supported the amendment as it was written. CHAIRMAN STRAIN: So it's your fault. MR. MULHERE: No, not my fault. They can read. CHAIRMAN STRAIN: Okay. David? MR. WEEKS: Bob is correct. The way it's written is it's based on the base density of four units per acre plus a bonus of four, which means a total of eight units per. acre. So if you start out with agricultural zoning, which is one unit per five acres or .2 units per acre and you ask for the maximum of eight units per acre, then you're getting a 7.8 unit per acre bonus. Conversely, if you're zoned RMF-6, which allows six units per acre, then the net effect is you're asking for a two unit per acre bonus through this process. But it is four plus four is eight. CHAIRMAN STRAIN: So the least dense areas have the greatest potential impact where the higher density areas have the least potential impact under the by right clause. MR. WEEKS: That is correct. CHAIRMAN STRAIN: That's the exact opposite of what it should be. Okay~ Well, you know what, we need to take a break. This would be a good time to take one for 10 minutes, and let's come back at 4:00. And then we'll just keep going, we'll finish at 5:00. Okay? Let's take a 10-minute break. (Recess. ) CHAIRMAN STRAIN: Dave, could you push the button for us, please. MR. WEEKS: Sure. CHAIRMAN STRAIN: Thank you. Page 172 October 2, 2008 Just some time to think about this, I have a suggestion, and maybe between Mr. Mulhere and Mr. Midney, we could figure out a way to help it out. Would it be possible for you two to reapproach the committee and ask them to approach maybe neighborhood informational groups or HOA's or any groups they can find or even a few, a handful of residents in the very low density areas? I'm talking the RSF -1 's if there is an estates area, or even an ago area with a house on it or an RSF - 2, and just confirm that they understand what this means and what's happening, just to be safe. I think the additional vetting of this is crucial. I think also when it comes back it should have information regarding compatibility criteria, should these higher densities be pushed in the lower density areas, because I don't think we have that occurrence in Collier County without some transitioning. MR. MULHERE: Yes. Well, for the record, Bob Mu1here. What I would do first, I'll pass that information on to Penny as the CRA Executive Director, because the next meeting -- so that she can distribute that request to the members of both committees. Because their next meeting -- and Mr. Midney's right, they meet during the day, they meet the third Wednesday in the morning. And it's a shame, because we just had an evening workshop out there, a 5:30 workshop last week on our draft compo plan amendment and there were about 50 people in attendance, so -- a lot of them were landowners, but there were just some residents there as well. I don't know that we'll be able to schedule like another evening meeting, but I think, as Mr. Strain suggested, we could certainly, and we would be willing to help in terms of contacting people and getting some feedback on it. So we'll bring back your -- if that ends up being the direction you go, I'll be happy to bring that information back to them. Page 173 October 2, 2008 CHAIRMAN STRAIN: What do you think, Paul, of that as an idea, before we jump into this? COMMISSIONER MIDNEY: I'm a little bit wary of it, to be honest, because just the nature of people, the NIMBY attitude, not in my backyard, you know. If you stir it up, you're bound to find people who are going to be objecting to something like this. And I understand you don't want it to be pushed through. But at the same time, if you look at it in the long view, there's going to be a need for affordable housing in this county. I mean, the trends are overwhelmingly pointed that way. And where can you build it? I think Immoka1ee is a place that has a greater history of it and a greater tolerance for it, and so I'd like to see it happen in Immoka1ee. But I wouldn't obj ect if you just passed it by people one more time just to see if there are people who are strongly opposed who never had a chance to hear about it yet. CHAIRMAN STRAIN: If you find those people because it was asked, all of a sudden they're concerned and against it, as you stated, that's kind of what I would like to know, because that would mean they probably didn't understand it the first time. And that's my biggest fear. So I think that might help. Go ahead, Brad. COMMISSIONER SCHIFFER: And Mark, your concern is you really -- I mean, you really are against this, obviously, and you really don't believe that the people realize what it is they're doing? CHAIRMAN STRAIN: No, I'm not against it if Immoka1ee wants it. I'm not against it in the neighborhoods that want it. I'm not convinced that all the low density neighborhoods have gotten an understanding of what this means. That's my only concern. And if they have, and they're fine with it, then fine. It's their neighborhood. But I just want to make sure that we've gone to the nth degree to try -- because this is a -- this is going to be a by right, and Page 174 October 2, 2008 once you give these away you can't take them back without a Bert Harris claim and we don't want to get into that. COMMISSIONER SCHIFFER: But a thought might be is from here it goes to the board. We can deal with it, make a recommendation one way or the other, and then before it goes to the board, they should make them aware. And Bob, you're in communication that people really realize what this means. Because when it passes the board, it becomes the law. We're just an advisory board. MR. MULHERE: For the record, Bob Mu1here. I just put on the record that in this case I'm sort of just the messenger. It's not really part of my contract, but I'm very happy to do it. CHAIRMAN STRAIN: Okay. Well, then what's the -- what would the board like to do? And I guess Paul, we're going to want to know -- Mr. Ko1flat, did you have a-- COMMISSIONER KOLFLAT: Well, I think it's a very important issue. And I think sampling the water a little, give you a little time to do that is appropriate. CHAIRMAN STRAIN: Paul, would you agree with that? COMMISSIONER MIDNEY: Yes. CHAIRMAN STRAIN: Okay. Does anybody feel that's inappropriate? If not, that's the direction we'll leave with staff. And basically test the waters. And I don't care how you get it done, but I think that it's something you need -- somebody needs to attempt to do. And maybe Bob will help and Paul and anybody else out there. Mr. Murray? COMMISSIONER MURRAY: Just to be sure. Carolina, you said something about if this doesn't go forward the GMP amendment would have to die or something. How much time do we have, or is there a time frame that's going Page 175 October 2,2008 to be in conflict as a result of this action? MS. VALERA: I believe we have had a time frame but it's more of a policy -- more than a requirement. But I'll let David explain. MR. WEEKS: In this case you may know that some GMP amendments specifically will provide a time period by which the LDC must be amended. This is not one of those. By policy we've always attempted to amend the LDC in the next available cycle, and here we are. So if action on this were to be deferred, that is certainly one of the handful of options that you have. I think Carolina started to explain some of those options, one of which will be to defer any -- recommend to the board that no action be taken on this amendment at this time, and instead wait until the, I'll call it, companion LDC amendments come forward and deal with all of this at one time as a whole rather than piecemeal. And that leads me in to, Commissioners, the point about compatibility. The other amendments related to this that need to occur are those that deal with the disparities of all these different zoning districts, yet saying they can all have eight units per acre. Development standards are different in all those zoning districts. We need to make them all the same perhaps through an overlay so that when someone uses this density by right process, they in effect abandon the underlying zoning district development standards and go to some new set. And that would include development standards for structures, that would include landscaping and buffering. That certainly would include fencing provisions, because as you may know, agricultural zoning districts allow barbed wire fences and keeping of farm animals, cows and pigs and so forth, and we certainly don't think that's appropriate to be part of an affordable housing project. And so forth. And I believe through that other set of amendments is where Page 176 October 2, 2008 compatibility may be addressed. I don't know that we will ever get to a point of giving staff the discretion, nor would I think it necessarily appropriate that staff have the discretion to determine when a project is compatible and when it is not. But rather try to develop standards, perhaps a matrix similar to what we have right now in the landscaping and buffering provisions of the LDC, which has a row at the top and a column on the left. And depending on what the zoning districts are of the subj ect property and adjacent properties, that determines what landscaping must be provided -- landscape buffers. And we might come up with a similar type of table for these affordable workforce housing projects by right. Likewise, development standards conceivably could be done in this similar type of a table. So it's a means of trying to address compatibility . CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: I kind of like that idea-- COMMISSIONER MURRAY: I'm still in the midst of -- I just wanted to say -- CHAIRMAN STRAIN: You are? Okay, I didn't know -- COMMISSIONER MURRAY: I didn't cut myself off. CHAIRMAN STRAIN: Sorry, Brad. COMMISSIONER MURRAY: I wanted to say thank you, and I wanted to express the fact that I think the conclusions reached here are -- did I say something wrong? CHAIRMAN STRAIN: No, I just -- COMMISSIONER MURRAY: Okay. The conclusions reached here I think are even more emphatically valid now. Okay, thank you. COMMISSIONER SCHIFFER: See, I like what David's saying. If we could do this as a motion, just move it into the -- to take it simultaneously when we review the master plan. Page 177 October 2, 2008 And it really would make sense to look at the master plan with the knowledge that this density could be there. I think, Mark, you could see what areas would have a difficulty with compatibility and we could see what the master plan has in terms of development standards and architectural standards to see what this could create with this density. Is that something we could do from here -- CHAIRMAN STRAIN: Your suggestion that instead of asking this to come back after they've done more vetting with the community but to recommend that it be tied to the master plan, I mean, I have no problem with that. That's more in line of what should be done. But that's not what the LDC amendment in front of us is for. COMMISSIONER SCHIFFER: No. CHAIRMAN STRAIN: And that's fine, I don't know how those things work out, but basically we would be tabling this amendment then. COMMISSIONER SCHIFFER: But I think since this is really, you know, a companion with the master plan, it's going with the urban area of the master plan, I think we would have more of an understanding of predictable results from this density than we would now. Now we're just going to let it go free range and we have no idea really what's going to happen. At that time we probably would. MR. WEEKS: I want to make sure we're very clear on one point, and that is that what is about to be submitted to staff is an amendment to the Immoka1ee area master plan. Following that, we'll be implementing LDC amendments. And that's what staff is suggesting you might consider, is delaying this to occur with those companion LDC amendment. I just want to make it clear that we're not literally talking about the Immoka1ee master plan amendments, but the subsequent LDC Page 178 October 2,2008 amendments. Though certainly this is something that we would all have in the, not in the back but in the forefront of our minds when viewing the Immoka1ee master plan, seeing as how it has these provisions in it now and what if any change we want to make to that. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: No, I was just agreeing. I think it makes sense. Because once it's done, like you said, Bert Harris gets involved. COMMISSIONER SCHIFFER: Can I make that a motion? CHAIRMAN STRAIN: Yeah, you can. Paul, is that-- COMMISSIONER MIDNEY: That's fine. CHAIRMAN STRAIN: Are you comfortable with it too? Go ahead. COMMISSIONER SCHIFFER: I move that we -- I'm not sure how to make this motion, but we forward LDC Section 2. -- or the amendment to LDC Section 2.06.00. I guess we forward it into the future to come with the cycle of the companion LDC amendments to the Immoka1ee revised master plan. CHAIRMAN STRAIN: Aren't we in essence tabling this amendment until it comes back with the master plan? MR. WEEKS: With the master plan based LDC amendments. CHAIRMAN STRAIN: With the master plan based LDC amendments. Is that your motion? COMMISSIONER SCHIFFER: Yeah, used the word table. COMMISSIONER MURRAY: To become a companion item. CHAIRMAN STRAIN: Motion is to table this item and to come back with the LDC amendments with the Immoka1ee master plan. Is there a second? COMMISSIONER MURRAY: I will second it. CHAIRMAN STRAIN: Mr. Murray seconded it. Page 179 October 2, 2008 Now is there discussion? (No response.) CHAIRMAN STRAIN: Hearing no discussion, all those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. All those opposed? COMMISSIONER CARON: Opposed. CHAIRMAN STRAIN: Motion carries -- oh, I'm sorry -- motion caries 7-1. COMMISSIONER SCHIFFER: And then I think, Mark, this gives time to do the Paul Revere runs on the density's coming, the density's coming. CHAIRMAN STRAIN: It works. Okay, thank you, David and Carolina. Next item is on Page 59. And Catherine, it's yours. MS. F ABACHER: All righty, thank you. It's a very simple one, and you asked us to make a-- COMMISSIONER KOLFLAT: What page? MS. FABACHER: I'm sorry. I'm going to turn to Page 60, and we are -- CHAIRMAN STRAIN: Starts on Page 59, right. MS. FABACHER: Right, on 59. And Cherie', it's Section 4.02.03, specific standards for location of accessory buildings and structures. The commission has seen this before. And you'll note on the top Page 180 October 2,2008 of Page 60 that we added dimensional standards for accessory building and structures in zoning districts other than the Estates. Then we went over to Page 61 and we did the same thing in the title for Table 4. And at that time Mr. Strain with his eagle eyes noticed that footnote two was nowhere to be found. So we went back, researched it and found that footnote two, if you'll see on Page 61, applies to the title of Table 4, so it applies to all of Table 4. CHAIRMAN STRAIN: Okay. MS. FABACHER: Yeah, since these are dimensional standards for waterfronts lots, it just simply says if the coastal construction line is involved that it will supercede -- COMMISSIONER MURRAY: Says non-waterfront lot on my page. (At which time, Commissioner Midney exits the boardroom.) COMMISSIONER MURRAY: For non-waterfront lots. CHAIRMAN STRAIN: Page 61 ? COMMISSIONER MURRAY: I'm looking at 60 -- oh, 61? MS. FABACHER: No, I'm talking about Table 4, dimensional standards -- CHAIRMAN STRAIN: Table 4, you're looking at Table 3, Bob. COMMISSIONER MURRAY: I'm sorry, I apologize, you're right, on 61 it refers to -- MS. F ABACHER: On waterfront lots and golf courses, so -- COMMISSIONER MURRAY: My error. MS. F ABACHER: And obviously -- excuse me, were you finished, sir? Commissioner, were you finished? CHAIRMAN STRAIN: Yeah. MS. FABACHER: Okay. What I was going to say is, and obviously this wouldn't apply if you're on a detention pond or required water management feature, because there's no coastal construction. This is only if you're on the Bay or the Gulf. Page 181 October 2, 2008 CHAIRMAN STRAIN: Any questions, comments on the couple of small changes? COMMISSIONER SCHIFFER: The only thing I still find weird is that this is a chart for accessory buildings in every area except the Estates, yet the requirement for the Estates is a footnote to it. I mean, I think it works if everybody's -- no one's going to have trouble -- I mean, the only other way is to add a new line item called all accessory buildings in the Estates and make SPS on everything. CHAIRMAN STRAIN: Well, the reason this came about, as you probably -- I don't know, I think you recall-- COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: Yeah. Someone went to this table instead of the Estates table, and this just clarifies that this is not the right table to be at, and probably makes it pretty clear because -- COMMISSIONER SCHIFFER: Yeah, I can live with that. It just seems weird that you have a table that says this is a table for everything except this, and then the requirements for this is in it. MS. F ABACHER: True, this is a Band-aid. But we hope in future working with Mark White to come up with a better way to do this. In fact, Susan suggested maybe in each zoning district all the dimensions, the accessory structures. It's kind of going backwards from the recodification. But this is just a Band-aid, Commissioner. We plan to do some more work on it in the future. It's a very good suggestion. CHAIRMAN STRAIN: Okay, are there any other comments? Ms. Caron? COMMISSIONER CARON: Yeah, I have a question. Because number -- footnote or asterisk number one, the single asterisk. MS. F ABACHER: Yes. COMMISSIONER CARON: Where does that appear? Page 182 October 2, 2008 MS. FABACHER: Oh, Lord. COMMISSIONER MURRAY: Number three. COMMISSIONER CARON: Did everybody get a corrected page? Because I didn't. I still have the same page. COMMISSIONER MURRAY: 8/21/08? CHAIRMAN STRAIN: I'm sorry, I think what Ms. Caron's referring to is on Table 4 where does it appear? Mr. Murray responded I think from Table 3. COMMISSIONER MURRAY: Yes, I did. COMMISSIONER SCHIFFER: Table 4 has a redundant, number one is the same thing. In other words, on Table 4, number three, instead of having the single asterisk has the numeral one, which is a duplicate to the single asterisk. CHAIRMAN STRAIN: See that one, that's supposed to be an asterisk. And if you go to the footnote, the asterisk and number one are the same. So somehow it got goofed up. COMMISSIONER SCHIFFER: But if we're going to revise it and ungoof it, we'll catch it. CHAIRMAN STRAIN: Catherine, if you take Table 4, number three, the far right hand where it says 1/1, then another one, you should put a single asterisk there. And then you don't need on Page 62 the footnote number one, unless you find it somewhere else you need. Which means footnote number two will become number one and you have to change it up on the top of Table 4 -- MS. F ABACHER: You're correct. The text has duplication -- COMMISSIONER CARON: One way, it has to get changed. MS. FABACHER: I got it. We'll take care of it. CHAIRMAN STRAIN: I don't think that needs to come back for that reason, but you ought to change it. Whatever is the simplest to a change, you ought to change. MS. F ABACHER: You guys want the one or the asterisk? Page 183 October 2,2008 CHAIRMAN STRAIN: I don't care. COMMISSIONER SCHIFFER: Do the asterisk. COMMISSIONER CARON: Just so long as it's consistent -- COMMISSIONER VIGLIOTTI: I'd rather the asterisk -- MS. F ABACHER: Asterisk? COMMISSIONER VIGLIOTTI: Yeah. MS. FABACHER: Okay. Thank you, will do. CHAIRMAN STRAIN: Any other comments, changes to that section? (No response.) CHAIRMAN STRAIN: Hearing none, is there a motion for approval or denial with or without consistency for 4.02.03? Mr. Schiffer? COMMISSIONER SCHIFFER: I'll make that motion. And it has no impact on the GMP as noted. For approval. CHAIRMAN STRAIN: Approval, consistent with the GMP. Is there a second? COMMISSIONER VIGLIOTTI: So moved. CHAIRMAN STRAIN: Mr. Vigliotti. Discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) Page 184 October 2, 2008 CHAIRMAN STRAIN: Motion carries 7-0. Make a note Mr. Midney stepped out for a minute. MR. KLATZKOW: I think he stepped out. COMMISSIONER VIGLIOTTI: He's gone for the day. CHAIRMAN STRAIN: Oh, is he gone for the day? COMMISSIONER SCHIFFER: He said he had a radio program to be on. CHAIRMAN STRAIN: Boy, he disappears quietly, doesn't he? Okay, Page 91 is our next one. Mr. Mu1here's been waiting three weeks for this. MR. MULHERE: Okay, for the record, Bob Mu1here with -- on behalf of Transportation Services. Do you want me to go over the changes that I think the planning commission directed? And then I have two other additional changes that Bruce Anderson suggested to me this morning, so I wanted to add those. But I think-- CHAIRMAN STRAIN: I think it would be helpful. It's been a long time since we touched this. So yeah, if you could refresh our memory, Bob, it would be helpful. MR. MULHERE: Okay. And just very briefly, the whole concept here is to create a process that's well understood, that will allow owners of property who are impacted by a take to go through a course of action to -- so that they understand how their property is affected and how it will be treated moving forward. But also so that the county can, through that process, have a well defined and minimized concept of -- reduce the damages that could otherwise be claimed if this was left uncertain. So I think the first change, which is very, very minor, I think it was just a typo on Page 94, at the bottom of the page. Do you have a numbered? Are your lines numbered? CHAIRMAN STRAIN: The lines aren't, but the pages are. Page 185 October 2,2008 MR. MULHERE: I'm going to keep asking that question until you have it. So the last paragraph, the word analysis was either missing or incorrectly spelled, I'm not sure which. But it's corrected. Then getting to Page 95, the first change was under applicability, paragraph A, paragraphs one and two were actually flip-flopped at your suggestion. They've been reversed. On Page 96, the paragraph at the top of the page, we struck through the sentence, the Board of County Commissioners may not modify this minimum required lot area requirement, at your direction. Going down to C.2, we clarified the County Manager or designee as opposed to Transportation Services Administrator to be consistent with that phraseology. At the bottom of the page, the sentence that starts, the replacement value shall be calculated by a Florida licensed property appraiser. We had in there civil engineer and general contractor. And I think Mr. Strain suggested just leave it as the appraiser, which is probably the best way to handle it because they actually -- a contractor or civil engineer would be working on behalf of the appraiser to come up with this. On paragraph three, about midway, or just one, two, three, four, five, six, seven, eight lines down, there's a sentence seven or eight lines that starts, all such nonconformities are allowed to remain legally nonconforming and in their existing locations and! or configurations provided, as applicable, they continue to function adequately to meet their intended purpose. And I think we have a -- I don't know if your version and my version are exactly the same, but what I have has provided, as applicable, as long as they continue to function. And I think there's something funny about the way that's written. CHAIRMAN STRAIN: Ms. Caron, then Mr. Murray. Page 186 October 2,2008 MR. MULHERE: I'm going to keep asking that question until you have it. So the last paragraph, the word analysis was either missing or incorrectly spelled, I'm not sure which. But it's corrected. Then getting to Page 95, the first change was under applicability, paragraph A, paragraphs one and two were actually flip-flopped at your suggestion. They've been reversed. On Page 96, the paragraph at the top of the page, we struck through the sentence, the Board of County Commissioners may not modify this minimum required lot area requirement, at your direction. Going down to C.2, we clarified the County Manager or designee as opposed to Transportation Services Administrator to be consistent with that phraseology. At the bottom of the page, the sentence that starts, the replacement value shall be calculated by a Florida licensed property appraiser. We had in there civil engineer and general contractor. And I think Mr. Strain suggested just leave it as the appraiser, which is probably the best way to handle it because they actually -- a contractor or civil engineer would be working on behalf of the appraiser to come up with this. On paragraph three, about midway, or just one, two, three, four, five, six, seven, eight lines down, there's a sentence seven or eight lines that starts, all such nonconformities are allowed to remain legally nonconforming and in their existing locations and! or configurations provided, as applicable, they continue to function adequately to meet their intended purpose. And I think we have a -- I don't know if your version and my version are exactly the same, but what I have has provided, as applicable, as long as they continue to function. And I think there's something funny about the way that's written. CHAIRMAN STRAIN: Ms. Caron, then Mr. Murray. Page 186 October 2, 2008 COMMISSIONER CARON: Yeah, I think that entire sentence starting all the way back to the beginning, which is all such nonconformities and ends as, as applicable. MR. MULHERE: Yes. COMMISSIONER CARON: It is an extremely run-on sentence that somehow needs to be rephrased and broken up so that it's actually readable. CHAIRMAN STRAIN: It's two sentences. COMMISSIONER CARON: No. MR. MULHERE: Well, you know what -- CHAIRMAN STRAIN: Fourth, fifth line up after the word condition, there's a period. COMMISSIONER CARON: Just read the sentence, though. CHAIRMAN STRAIN: I thought it was all one sentence -- COMMISSIONER CARON: No, no, no. It just says, all such nonconformities are allowed to remain legally nonconforming and in their existing locations and! or configurations, provided, as applicable, they continue to function adequately to meet their intended purpose and until the remainder of the parcel is either recreated or improved as set forth in paragraph two above, except where it is determined by the county manager or his designee. MR. MULHERE: Yeah, I think it is too long. I think it's too long. So I agree with you, so -- CHAIRMAN STRAIN: Well, after the environmental, this is a breeze. MR. MULHERE: So let me just suggest this, if I could. I think I can get some of it clarified. At the start, I think we can strike through provided as applicable. So that it would read, all such nonconformities are allowed to remain legally nonconforming and in their existing locations and! or configuration as long as they continue to function adequately to meet Page 187 October 2,2008 their intended purpose. That becomes pretty clear. And if we put a period there, I will -- I don't know if I can do it right here on the fly, but I will reconstruct that second sentence so that it reads for the exact same intent but is grammatically correct. That was a long one. And thenD, we didn't have a D, or we had it incorrectly labeled, so it's correctly labeled now. On the next page, Page 98, paragraph C, about the middle of the page, prepared by a cert -- COMMISSIONER CARON: Before you go on -- MR. MULHERE: I'm sorry, did I miss one? COMMISSIONER CARON: Sorry. On 97, the D.1, or I guess it's actually its own one, a post-take plan may be submitted for staff review and approval. MR. MULHERE: That should be D.1. So we'll move that one in so that it's under the -- yeah, okay. MS. F ABACHER: Move the Dover. COMMISSIONER SCHIFFER: Move the Dover. MR. MULHERE: Got you. Thank you. COMMISSIONER CARON: But this post-take plan, the approval is only going to come to staff? MR. MULHERE: No. There is an administrative level beyond that administrative level, which is defined for certain deviations, then it would be required to go -- you can see that --let's see if I can get you to that. The first part says you can submit a post-take plan. And it tells you what you have to provide for the post-take plan. So moving along on 98, it's still what do you have to provide through a narrative, a signed and sealed boundary survey, an aerial and so on and so forth. Then it says the property owner or the county attorney may request the following deviations, and it tells you, for example, on the Page 188 October 2,2008 first, one, landscape buffers -- well, it says landscape buffers may be reduced from the code required width or depth but shall not result in a buffer of less than five feet in width or depth. Now, just using that one as an example, you could actually, if you wanted to -- I don't know that you'd get it approved, but you could actually take that condition, if you were less than five feet, to the planning commission for approval. Any variation that's not administratively approved would have to go up to a higher level, to a public hearing. COMMISSIONER CARON: But I think if you read the rest of what you've written, the only time it actually gets to the CCPC or beyond, or maybe even ends with the CCPC, is if somebody writes a letter and complains about it. MR. MULHERE: Well, it says -- yeah, okay, yeah. COMMISSIONER CARON: Otherwise, everything else is administrative. And I'm -- MR. MULHERE: Well, it says -- if you go to paragraph three on the top of Page 99, deviations other than those set forth in paragraphs A through C or exceeding the minimum or maximums may also be approved subj ect to the following procedures. And then you have notice -- CHAIRMAN STRAIN: Where are you at? MR. MULHERE: I'm on Page 99, paragraph three. COMMISSIONER CARON: He's actually on the bottom of Page 98. CHAIRMAN STRAIN: On the bottom? He said the top -- MR. MULHERE: Oh, your number's different, I'm sorry. CHAIRMAN STRAIN: Yeah, that's what happening. MR. MULHERE: Paragraph three it starts out deviations other than those. CHAIRMAN STRAIN: That's on page -- the bottom of Page 98. Page 189 October 2,2008 MR. MULHERE: Okay. So if you read that, it says anything different than we just discussed, which are administratively approvab1e, anything exceeding those minimums or maximums, which we defined previously, have to go through this process. And there isn't -- and you have to notify property owners. So it's not just that they have to comply, we actually have to notify them. All property owners are notified the same way you would notify of a rezone. Then you have to list the deviations. You have to provide a narrative justification. You have to provide a copy of the post-take plan. And then if no written objection is received within 30 days, it's approved. If you do get a written objection, then it's scheduled for hearing before the planning commission. But I mean, we are going an extraordinary step of notification in that. CHAIRMAN STRAIN: Okay. MR. MULHERE: The only other changes that you had were on Page -- well, my Page 100. It might be your Page.99. COMMISSIONER CARON: I'm still back on Page 98 because I want to know on number two, it says the property owner or the county attorney may request the following deviations from the LDC. Who do they request it from? MR. MULHERE: They submit an application to staffwith all the other stuff that is required to be submitted. COMMISSIONER CARON: So again, it's just more administrative. MR. MULHERE: The reason that we put both is because a landowner may choose not to do this, just to put the county in a state of risk by saying hey, the county hasn't tried to remedy my situation. So the county may want to take that course of action so if it goes to a jury Page 190 October 2, 2008 trial they can say we did do this and here was the remedy. COMMISSIONER MURRAY: I have a question. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: If the county attorney initiates an action, can the county attorney also be the judge of that action? MR. MULHERE: The county attorney -- this has been reviewed and suggested by the county attorney. COMMISSIONER MURRAY: I'm only asking because I'm ignorant of the facts. I want to know. MR. MULHERE: They can apply for it, and maybe they would need to hire an outside counsel if it got to some sort of a challenge period. I don't know the answer -- COMMISSIONER MURRAY: I'm only -- because it just seems a little strange to me the county attorney may request the following deviations from the LDC. I've never come across this yet. MR. MULHERE: No, it's pretty unique. COMMISSIONER MURRAY: Perhaps others have. MR. MULHERE: No, it's pretty unique. COMMISSIONER MURRAY: But I thought that put the county attorney in a strange situation. MR. MULHERE: Well, you could -- I mean, it's specific. Maybe the way to do that is to not specify the county attorney but just simply say the property owner or the county. COMMISSIONER MURRAY: Yeah, that might be better. Because I think you put the county attorney in a strange situation. MR. MULHERE: I guess I'll defer to you on that one. COMMISSIONER MURRAY: I guess the county attorney would be the -- MR. KLATZKOW: County's fine. MR. MULHERE: Okay. COMMISSIONER MURRAY: County attorney is fine? Page 191 October 2, 2008 CHAIRMAN STRAIN: No, just county. MR. KLATZKOW: No, just county is fine. CHAIRMAN STRAIN: Good recommendation, just leave the word county. Okay, Bob. MR. MULHERE: I'm sorry, you had just a couple other minor -- well, not minor, the one other change is substantive, and this was the addition of paragraph lower case iii, which was, I think, the commission's request that we add a specific criteria that dealt with other issues of consistency within the GMP and LDC. CHAIRMAN STRAIN: And then the last one on Page 100, we have exhausted all appeals. MR. MULHERE: As opposed to -- yeah, not reach final disposition. So it's a little more specific. And then I wanted to just bring two other changes to your attention that Mr. Anderson mentioned to me, which I think are good changes. And I think they were just oversights on my part. Looking on the very first page, the definition of a take or taking. CHAIRMAN STRAIN: Can you give us a page number, Bob? MS. FABACHER: 91. MR. MULHERE: Page 91. That definition says a parcel of land or a lot or portion thereof or parcels or lots in combination or a portion thereof that the county or some other governmental agency with eminent domain powers has acquired, and goes on. Flipping to Page 95, I hope, under applicability, paragraph 1,A.1 says for purposes of this section, acquisition means any method of acquiring -- I'm sorry paragraph A.2. If you go to paragraph A.2 where it says it applies to acquisition for present or planned public use by the following party or parties. If you look at iv, the last one, it says a private party or parties under agreement with Collier County or other governmental entity. Page 192 October 2, 2008 So going back to the definition on the page -- first page. MS. FABACHER: 91. MR. MULHERE: Yeah, 91. It was suggested that we add after the word powers, parens, end parens, comma, and put in the same phrase, which would be, or a private party or parties under agreement with Collier County or other governmental entity. That makes those two consistent. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: It's probably a very simple answer to this, but when we use the term here private party or parties, how private are they? I mean, my background for my question is using government to benefit private parties through condemnation. MR. MULHERE: Well, it could be that -- let me see if I can give you an example. You have a landowner who agrees to construct a roadway on property that he owns, but doesn't maybe own all of the parcels. And the county, through some agreement, you know, endorses that improvement on the part of the private property owner but agrees to assist in acquisition of the parcels that aren't within the corridor at present. And maybe, I'm assuming that that might be a condition that they're -- this kind of was kind of 1ega11anguage between Mark White -- started with Mark White and county attorney's office staff to make sure that we had that definition covering all circumstances that it might need to cover. And that's where that language came from. COMMISSIONER MURRAY: You guys vetted it completely, is what you're saying? MR. MULHERE: Yes. COMMISSIONER MURRAY: Because I'm going to rely upon that. MR. MULHERE: Yeah. But I understand your concern. It's not intended to be there to benefit some private party, only where it's in the Page 193 October 2, 2008 interest of the public with the county entering into an agreement. COMMISSIONER MURRAY: Okay. CHAIRMAN STRAIN: What's the second change? MR. MULHERE: Second change was on Page 91, the definition of a post-take plan. The definition of -- one, two, three -- three lines down -- or four lines down says, or to resolve site impacts to an improved property caused by a take. That final phrase there. We have some situations where there's actually unimproved property where, however, there has been a final development order submitted, such as a site plan, reviewed and approved or ready to be approved but not yet constructed, a take occurs, has a significant impact. We'd want that to be able to go through this process as well. So the suggestion -- and there was one example where a -- something like a drugstore, they were taking a significant piece of right-of-way and that changed the design significantly. They could accommodate it by a slightly smaller landscape buffer, I think five foot less landscape buffer, and that would have resolved all the issues and all of the damages. But the way this is written, we couldn't have dealt with that issue. So the suggestion was to revise that to say, or resolve site impacts caused by a take to an improved property or unimproved property where an application for a development order has been made. COMMISSIONER CARON: Just the application for it? MR. MULHERE: Yeah, that was the -- COMMISSIONER CARON: Not the approval of it. MR. MULHERE: I mean, that's probably up to you. The suggestion is where application has been made. They're going to say that they relied on -- you know, they expended money and relied on the county standards to go through the expense of creating that and submitted their application. I mean, you could always -- I think applied is probably in the Page 194 October 2, 2008 best interest of the taxpayers, because it's going to allow you to look at a case-by-case situation. (At which time, Commissioner Vigliotti exits the boardroom.) CHAIRMAN STRAIN: Okay, so we're looking at, besides the changes in yellow, you've got three items that would have to be changed in this document. On Page 97, you're going to rewrite that sentence there that doesn't change any of the structure of it. MR. MULHERE: Correct. CHAIRMAN STRAIN: Restructure it but doesn't change any of the concept -- MR. MULHERE: Create two sentences from one. . CHAIRMAN STRAIN: Right. Under the take or taking, you're going to add some of the acquisition language from Item A.2.4. And under the post-take plan, you're going to add the language you just discussed, which is to resolve site impacts caused by a take to an improved or unimproved property with an application -- where an application for SDP has been made. MR. MULHERE: And strike through the word attorney where we talked about -- and just say the owner or the county may request the deviation. Page 98. CHAIRMAN STRAIN: You're right. Okay, there are four changes to the existing amended language. Ms. Caron? COMMISSIONER CARON: On Page 99, on little b, you see where it's a highlighted yellow two? MR. MULHERE: Yes. COMMISSIONER CARON: And beyond that it goes above or exceeding the minimums. Should it also be minimums or maximums? We changed that down below, and I wasn't sure if we were supposed to change it there as well. MR. MULHERE: Yeah, you're right. Let me look at that. I think Page 195 October 2,2008 you're absolutely right. CHAIRMAN STRAIN: Well, if you -- would it be minimums or max -- just exceeding the values established in that subsection, or however you want to define it. MR. MULHERE: Well, we changed it to say minimums and maximums in the other one. It makes sense. CHAIRMAN STRAIN: Okay, so now we have five changes made to the changes that you produced. Anybody else have any? COMMISSIONER MURRAY: Plus the little d moves over. CHAIRMAN STRAIN: Well, the little d moves over. Six changes. MR. MULHERE: Actually it was the big D. CHAIRMAN STRAIN: Huh? The big D, okay. I think that the changes -- the six changes are well understood. COMMISSIONER MURRAY: Yes. CHAIRMAN STRAIN: I don't know why we'd want this to come back again. We can get it off our plate. Does anybody feel otherwise? (No response.) CHAIRMAN STRAIN: Hearing no concern -- COMMISSIONER MURRAY: I would make a motion. CHAIRMAN STRAIN: -- then. There's no public here. I would suggest for a motion to approve or disapprove, consistent or inconsistent with the GMP for Section 1.04.04 and Section 1.08.08 -- COMMISSIONER MURRAY: I would make that -- CHAIRMAN STRAIN: -- as amended and as corrected. COMMISSIONER MURRAY: I would make that motion for approval subject to the conditions. CHAIRMAN STRAIN: And consistent with the GMP? COMMISSIONER MURRAY: And consistent, yes. Page 196 October 2, 2008 CHAIRMAN STRAIN: Mr. Murray made the motion for approval -- no, consistent -- for approval consistent with the GMP with the amendments and the corrections we made today. Is there a second? COMMISSIONER SCHIFFER: I'll second it. CHAIRMAN STRAIN: Mr. Schiffer made the second. Is there any discussion? (No response.) CHAIRMAN STRAIN: All those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 6-0. Let the record show, by the way, Mr. Vigliotti had to leave. MR. MULHERE: Thank you. CHAIRMAN STRAIN: Thank you, sir. Now we'll move to the most difficult one of the day. Just kidding, Lisa. Page 111. Page 111, our streetlight rewrite that we had a couple minor corrections to from -- MS. F ABACHER: Did you hand all these -- CHAIRMAN STRAIN: No. MS. KOEHLER: I'm sorry? I passed them out. CHAIRMAN STRAIN: Yeah, we did. MS. KOEHLER: Everybody got one. MS. F ABACHER: Cherie' got one? Page 197 October 2, 2008 MS. KOEHLER: Yes. MS. FABACHER: Okay, thank you. CHAIRMAN STRAIN: And the revision that we should be looking at is 7/29/08. And it's a rewrite of the previous -- COMMISSIONER SCHIFFER: What page again, Mark? CHAIRMAN STRAIN: We're on Page 111 and 112. That was some clean-up to the language that we previously recommended. MS. KOEHLER: Lisa Koehler, Transportation Planning. I don't think there were any changes. You don't have a revised amendment in front of you. What you had before were some questions about lighting levels, accidents, why we have what we have. And you had asked that we go through the IESNA Handbook, and not give you the entire handbook but give you the applicable sections. And that's what you have in your handout. And then on the back side what you have is accident data that we were able to get. And it comes from different sources, Florida Highway Safety and Motor Vehicle Traffic Crash Statistic report. You've got a chart at the bottom that's from the Collier Sheriffs Office. They weren't able to break it down I think for what you guys were wanting to know locally. I think you were looking at what kind of nighttime crashes we have. And they were just able to give us the overall numbers and not time of day for those crashes. One interesting thing to note is in the middle, from the National Cooperative Highway Program in their 2000 report. Florida had the highest pedestrian fatalities in all the states. COMMISSIONER MURRAY: All the old people walking slowly. CHAIRMAN STRAIN: Florida had the highest? MS. KOEHLER: Florida was the highest state, at 3.2 per hundred thousand. The average at that time was 1.7. Page 198 October 2, 2008 So we feel -- sort of in summation, so what we feel like is that we need to keep the foot candles. You guys had asked before do we really the two to five-foot candles. And our response is yes, we do. We obviously have, you know, a concern for the fatalities and for the accidents for pedestrians and bicyclists and we want to create those safe pathways for them. Y .? es, SIr. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: That may very well be true. But you need to break -- to prove that, you need to break this down just one more step. If it has the highest pedestrian fatalities, are they at night? MS. KOEHLER: I think if you look -- all that was able to find in various places, it just said that the darkness -- let's see if there are any stats. Yes. If you flip your page back over, under Section 1.5, night/day accident relationships. Fatal accident rate at night is three times greater than the daytime rate. COMMISSIONER MURRAY: Well, yeah, but that doesn't-- that's a statement of explanation. That's not necessarily a statement of actual fact. MS. KOEHLER: We were not able to find any breakdown of time of day accidents for Florida. COMMISSIONER MURRAY: Okay. But at least you tried, right? MS. KOEHLER: Yes. And the Sheriffs Office tried as well. They thought they had it. But in the end they weren't able to produce that information so that you could at least see what we have locally. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: Lisa, what is the lighting on the roadway requirement? MS. KOEHLER: Nick tried to explain that the last time where he talked about the average lighting is 1.6. But -- hold on a second, Page 199 October 2, 2008 because I did talk with our street department. I think our ranges have to -- I know our intersections are lit anywhere between a 1.5 and a 2.9. Our roadway lighting is supposed to average a 1.6. So you certainly have lighter areas and darker areas, but you have that average. CHAIRMAN STRAIN: Would there be a chance then based on that lower lighting provided already by the road system that anybody would ever be able to benefit from the additional -- from that lighting, SInce -- MS. KOEHLER: Yes, which is why we're proposing the language that we are, that if you can meet your current street level lighting, you don't have to add the additional pole and light. That's the language that you see on Page 112 that is the shaded, the highlight. CHAIRMAN STRAIN: But the current level that you're asking them to meet is between two and five -- MS. KOEHLER: Two and five. So -- CHAIRMAN STRAIN: But if our standard is only 1.6, how can any of ours give them the two to five? MS. KOEHLER: That's your average. You have to maintain -- on your roadway that you're driving on, that average has to be 1.6. So there's going to be some areas that are higher. So it's very possible that if you have a streetlight at the entrance of your development, you could be at a 2.0, two-and-a-half or something higher, so that you don't have to add that additional light. CHAIRMAN STRAIN: Okay, but why don't we use 1.5 then as the minimum, since that could be the average that's already out there. Why would we want a number higher than the average that we would provide? MS. KOEHLER: Because the IESNA standards say those intersections should be lit at 50 percent higher rate. CHAIRMAN STRAIN: Then we're not doing it, though. Page 200 October 2, 2008 MS. KOEHLER: Explain. I'm confused. CHAIRMAN STRAIN: Okay. The intersections you're talking about that should be illuminated at a higher rate -- MS. KOEHLER: At the 2.2 to five. CHAIRMAN STRAIN: -- are where driveways meet the road systems. Where the driveways meet the road systems, not the intersections that we've already lighted. MS. KOEHLER: The IESNA standards are that your pedestrian walkways at your high volume intersections or driveways should be lit at 50 percent higher than your roadway. So if our roadway is averaging 1.6, we need to be 50 percent higher than that as you're coming into that development. CHAIRMAN STRAIN: Okay, understand. MS. KOEHLER: So we're in that range of two to five. CHAIRMAN STRAIN: Gotcha. Mr. Schiffer? COMMISSIONER SCHIFFER: Just to -- CHAIRMAN STRAIN: Oh, Mr. Klatzkow after Mr. Schiffer. MR. KLATZKOW: I just want to note that development is a defined term in the LDC and it would include all single-family homes. All single-family homes would fall underneath this standard. CHAIRMAN STRAIN: They took that out, though. Didn't you? MS. KOEHLER: Yes. CHAIRMAN STRAIN: Yeah, the new writing, revised 7/29/08, they took that out -- MS. KOEHLER: We didn't use the defined term of development at your -- we had that originally when we submitted and at Mr. Klatzkow's request we took that out. So now it reads residential and commercial developments improved through an SDP, SDP A or PPL. MR. KLATZKOW: The version I have is different. My apologies. Page 201 October 2, 2008 CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: That was kind of my question. But that still means every single commercial proj ect -- MS. KOEHLER: It does, which is what it is today. Even though we use the word subdivision, if you come in with a single lot development, a bank, a restaurant or whatever, you have to meet that two to five-foot candle, but you have to do it on both sides. Where we're sort of relaxing that requirement, saying if you can meet that two to five and show it on your lighting plan, that you might not have to add that additional light. COMMISSIONER SCHIFFER: What do you mean both sides? What was that? MS. KOEHLER: That's the way it was written before is you have to add a light fixture on both sides of the driveway. COMMISSIONER SCHIFFER: Both sides, okay. All right. MS. KOEHLER: Right. One of the questions you had asked before was -- or somebody -- the cost of installation as well as the monthly cost, right, and that's on -- is that on your sheet? No, I've got that, sorry. I have too many sheets up here. Of the cost of installation. We asked the development community, they gave us a cost of $3,000 for a single light pole, all of the work, conduits, wires, everything, and a cost of about $13 a month for FPL. COMMISSIONER SCHIFFER: The other question I have is the five- foot candles. Do you think that might even be too much? I mean, here's what I'm afraid of, is a bunch of stores in a row. Like one of the ugliest things on these streets with commercial development is the brightness of the roadways. Do you think -- you know, because remember, these sidewalks, these walkways could be side by side, two different properties could be coming out with walkways next to each other, driveways. Because of the fact that they're on collectors, they're going to have a throat Page 202 October 2, 2008 anyway, so there's going to be car stacking setback. Do you think we should drop that five just to make sure we don't? MS. KOEHLER: We really don't. We're talking about the safety of folks that are crossing that driveway as cars are turning in at night. You know, it's really important to have that driveway lit up so if there's anybody approaching that on foot or on a bicycle, you can see them. Because as you're turning in, you're trying to maybe beat traffic coming on to you. I think it's important. COMMISSIONER SCHIFFER: Yeah, I'm with you on that. And I'm not talking about the minimum, I'm talking about the maximum -- MS. KOEHLER: The maximum. No, I think -- COMMISSIONER SCHIFFER: So you would like to see a street with five-foot candles on the surface. MS. KOEHLER: At that entrance of a development, yes. CHAIRMAN STRAIN: But see, some streets are more passive in nature, they're quieter, they're illuminated at the lower leveL Say they're all-- say you go down the street and it's all at 2.0, and all of a sudden you find one development that said, huh, I want to make mine stand out, I'm going to put all of mine in at 5.0 because I can. Maybe we ought to find a way to tie it to the standard average on the street within a certain distance of the site. MS. KOEHLER: Well, remember, you're only talking about collectors and arterials. You're not talking about your residential streets. So they're all going to be lit to about that same leveL CHAIRMAN STRAIN: You think they're all going to be lit to 5.0? COMMISSIONER SCHIFFER: 1.6. CHAIRMAN STRAIN: 1.6. MS. KOEHLER: Right, that's your average. CHAIRMAN STRAIN: Right. So if you go down the street and Page 203 October 2, 2008 you want to highlight your development, couldn't you raise your standard candle power in your particular entryway to put some real bright lights out there to attract -- MS. KOEHLER: To five, right. And I think that they pointed out at the last meeting that if you look at the Germain dealership on the North Trail, it's lit up like Christmas. And that's certainly a way that people can attract people to their -- clients to their business, but -- CHAIRMAN STRAIN: That's not what we're supposed to be doing. . MS. KOEHLER: But that's their parking lot lighting, okay. Their parking lot lighting is different than their street lighting requirements. CHAIRMAN STRAIN: But if you can do a 5.0 candle power in the street lighting based on this code, then the two lights that you choose to put up front at your driveway where they're along the roadway would be three candle powers or more above the average of the roadway, which would make your business or your enterprise stand out. MS. KOEHLER: It could. But you're also providing very safe passage. CHAIRMAN STRAIN: Isn't 2.0 safe? MS. KOEHLER: Yes. CHAIRMAN STRAIN: Okay. MS. KOEHLER: But I would argue four points is safer. CHAIRMAN STRAIN: But I'm not trying to give anybody an edge for advertising purposes under the -- MS. KOEHLER: And when you -- CHAIRMAN STRAIN: You've got to wait till one of us stop before you start talking. It's hard for her to keep track. So I think where Brad may have been hinting, and I think it's a good idea, why does anybody stand out. If2.0 is the one that works and it's the average for the area, why don't we look at a level, a certain Page 204 October 2,2008 ratio above 2.0, not two-and-a-halftimes 2.0. MS. KOEHLER: Well, I also think the reason for this is, if you would talk to a lighting expert, you have a range. If you install a light today at 2.0, as that -- as time goes on and you have dust and debris and just shmeg covering that light, it's not going to be 2.0 at some point. So if you're within that range from two to five, you've got some play in there. And I don't think you'r~ going to find that a five point foot candle is like a high beam. COMMISSIONER MURRAY: You mean like these? MS. KOEHLER: It's not going to feel like you're under a spotlight -- CHAIRMAN STRAIN: I don't see the need to allow any particular commercial enterprise or residential or whatever to find a loophole in the code for them to stand out any more along the corridor that's provided to them by the public. So why don't we just say two-foot candles with a maximum not to exceed one additional foot candle over the average or something like that. MS. KOEHLER: Which would take you up to a 2.6? CHAIRMAN STRAIN: Well, whatever. MS. KOEHLER: I mean, it's not that -- when you're talking about your average, remember, your average roadway lighting is 1.6. So you're going to have -- if you're right under a streetlight, you're going to be higher than that 1.6. CHAIRMAN STRAIN: Right, but that's not the average. MS. KOEHLER: Correct. CHAIRMAN STRAIN: So they couldn't go above -- I don't know, I'm just picking a number. I'm suggesting another way to approach it that might be less intrusive. Go ahead, Brad. Page 205 October 2,2008 COMMISSIONER SCHIFFER: I think one thing, maybe -- and here's the sad thing that could happen is, we have a lot of developments where we have nice ballard soft lighting on there, and all of a sudden these are just going to be bright spots. What if we just made it so it's not twice the ambient roadway. That would let you go up to like a 3.2. And then -- again, we're not concerned with the minimum -- all the stuff that you gave us, there's nothing in there that -- it's saying that the light should be at least 50 percent. It's not saying -- there's nothing in here that states 300 percent is any better or any safer. So would that be a problem if we just had it two-foot candles not to exceed a maximum of twice the ambient roadway? That way it would definitely be a bright spot. MS. KOEHLER: Would be brighter. COMMISSIONER SCHIFFER: And it would exceed what the paperwork you showed us. MS. KOEHLER: It would. CHAIRMAN STRAIN: Everybody comfortable with that? (No response.) CHAIRMAN STRAIN: I think it's better than five, so I think we're working in the right direction. Lisa, do you understand the suggested language? MS. KOEHLER: If you can go through it one more time. You want it to be -- CHAIRMAN STRAIN: Brad, do you want to -- MS. KOEHLER: -- a minimum of2.0? COMMISSIONER SCHIFFER: It's two-foot candles and a maximum of twice the ambient roadway. CHAIRMAN STRAIN: So instead of 5.0-foot candles, it would be twice the ambient roadway. COMMISSIONER SCHIFFER: Right. And that gives -- if Page 206 October 2,2008 something looks really bright, they could go out and they could adjust it. MS. KOEHLER: And you're right, the roadway lights are getting as dirty as these lights. So everybody should -- CHAIRMAN STRAIN: Are there any other corrections or suggestion to Pages 111, 112 and 113? (No response.) CHAIRMAN STRAIN: Okay, I think the one change can be made without it coming back. I hope we're all in agreement. If so, is there a motion to recommend approval or denial and inconsistent or consistent with the GMP for LDC Section 6.06.03 with the corrections noted and the ones supplied? COMMISSIONER MURRAY: I'll make that motion. CHAIRMAN STRAIN: Mr. Murray made the motion. Is there a second? COMMISSIONER SCHIFFER: (Indicating.) CHAIRMAN STRAIN: Mr. Schiffer. Discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. Anybody posed? (No response.) CHAIRMAN STRAIN: Motion carries 6-0. Weare down to the last one. I'd like if we could bear here and try to finish one. It might take a few minutes past 5:00. Page 207 October 2, 2008 Will that work for you, Cherie'? Excellent. Thank you, Lisa. MS. KOEHLER: Thank you. CHAIRMAN STRAIN: The next one is on Page 139. And it's-- Catherine's got the one. So-- MS. FABACHER: I've got it. CHAIRMAN STRAIN: You've got it, Catherine. It's one page, but it's an in-depth one page. MS. F ABACHER: I'm going to move over here, use the overhead. CHAIRMAN STRAIN: Catherine, just so you know, if this gets too long, we'll just have to postpone it till next week, so let's just try to get as concise as we can. Ms. Caron? COMMISSIONER CARON: I'm going to suggest that we probably should put this one off until -- CHAIRMAN STRAIN: I have no problem with that. If it's going to take -- I mean, five minutes or 10 minutes, if we're going to -- we probably will take more than that. What's the rest of you feel? COMMISSIONER SCHIFFER: Either way. COMMISSIONER CARON: I don't know want to get started and then stop. COMMISSIONER MURRAY: Amazing, one page would take you so much time. MS. FABACHER: Did everyone get a copy of the Florida Attorney General's opinion? CHAIRMAN STRAIN: Yes, we did. At least everybody here. Yeah, I see Ms. Caron's got it. So -- MS. FABACHER: I just want to say that on Page 140.3 in the paragraph that begins with the term passive recreation, which says the Florida Statutes cannot define it, it talks about what the problem is, and Page 208 October 2, 2008 the problem is whether the facility -- I'm in the middle of the paragraph, the first word is engagement. But the problem is, is whether the facility is resource-based as opposed to user-oriented would appear to be relevant. And we've kind of said all along, Conservation Collier and preserves are resource-based, Parks and Recs are user-based. And the whole problem is, is that we tried in 2006 to come up with a list that meets everyone, and it can't. And I think at the last meeting I showed you about nine different definitions from other areas, which you had asked me to do. And then the other thing you said was to try and sit down and get everybody to agree on these uses. But I think if you read through the Attorney General's opinion and particularly footnote number five, that almost nobody can do that. Our recommendation back in '06 was to just put some sort of generic definition that includes such activities as, and let the various entities, like they do, like Barbara Burgeson is defining the uses in her preserves in the preserves section. Alex Sulecki in her Conservation Collier lands ordinance has already said what her activities can be. And as far as Parks and Recs go, I don't know. But that's the problem. Parks and Recs is obviously -- doesn't have very much passive recreation, or what they would consider passive may not be, like camping would not be considered passive by the folks in environmentaL You may want to think about it and we can discuss it again as you want. But I just want to emphasize again what the inherent problems and that almost everyone I checked just puts some vague general thing. And then when they get to that use or that sort of property or that type of district, then they get more specific about what they consider allowable. Page 209 October 2, 2008 CHAIRMAN STRAIN: Ms. Caron, then Mr. Murray. COMMISSIONER CARON: I'm not saying you're right, wrong or indifferent. I just think it is going to require an in-depth discussion that I don't want to start at 5:00. MS. F ABACHER: That's fine. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Ditto. CHAIRMAN STRAIN: Okay. I have no problem with that, because it is -- Catherine, I don't think this -- what's been defined here and what you provided probably isn't going to survive. So rather than get into an issue now that's going to get lengthy, we'll defer this one to next Thursday as well. And with that in mind, I'm looking for a motion to continue this meeting to 12:30 in this room, not December 7th but October 7th. COMMISSIONER CARON: And that would be a Tuesday, not a Thursday. CHAIRMAN STRAIN: That would be Tuesday, next Tuesday. MS. FABACHER: And that would be a continuation of this hearing of Cycle 2008, Cycle 1 LDC. CHAIRMAN STRAIN: Right. I said 12:30 next Tuesday. Mr. Klatzkow you look puzzled. No? 12:30 next Tuesday. Is there a motion for that? COMMISSIONER SCHIFFER: I will make that. CHAIRMAN STRAIN: Thank you, sir. Is there a second? COMMISSIONER CARON: Second. CHAIRMAN STRAIN: Seconded by Ms. Caron. All in favor? COMMISSIONER SCHIFFER: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER CARON: Aye. Page 210 October 2,2008 COMMISSIONER MURRAY: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 6-0. We are off till next Tuesday. ***** There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 5 :00 p.m. COLLIER COUNTY PLANNING COMMISSION MARKP. STRAIN, Chairman These minutes approved by the Board on presented or as corrected , as TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC. BY CHERIE' NOTTINGHAM Page 211