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CCPC Minutes 10/07/2008 S October 7, 2008 TRANSCRIPT OF THE LAND DEVELOPMENT CODE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida October 7, 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 12:30 p.m. in SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Mark Strain Donna Reed-Caron Tor Kolflat Paul Midney (Absent) Bob Murray Brad Schiffer Robert Vigliotti David J. Wolfley (Absent) Karen Homiak (Absent) ALSO PRESENT: Jeffrey Klatzkow, County Attorney Joseph Schmitt, CDES Administrator Ray Bellows, Zoning & Land Development Review Page 1 October 7, 2008 CHAIRMAN STRAIN: Good morning, everyone -- actually, it's afternoon. Thirty minutes in the afternoon. And now that Mr. Anderson's here, we can start. If you'll all please rise for The Pledge of Allegiance today. (Pledge of Allegiance was recited in unison.) CHAIRMAN STRAIN: And welcome to the continuing saga of the Land Development Code amendments for 2008, Cycle 1. And last week we had left off in some environmental items that are going to be heard today. There are four items that will be heard today. We'll take roll in a minute, but I want to let everybody know that in case the audience is interested, and Bruce is the only one, EIS thresholds, preservation standards, preserve management plans, criteria for removal of protected vegetation and definitions for passive recreation, those are the four items that we would expect to get into today. And with that, Mr. Vigliotti, can you do roll call. COMMISSIONER VIGLIOTTI: Yes, I will. Mr. Eastman is absent. Commissioner Kolflat? COMMISSIONER KOLFLAT: Here. COMMISSIONER VIGLIOTTI: Commissioner Schiffer? COMMISSIONER SCHIFFER: Present. COMMISSIONER VIGLIOTTI: Commissioner Midney is absent. Commissioner Caron? COMMISSIONER CARON: Here. COMMISSIONER VIGLIOTTI: Chairman Strain? CHAIRMAN STRAIN: Here. COMMISSIONER VIGLIOTTI: Myself, Bob Vigliotti is present. And Commissioner Murray? COMMISSIONER MURRAY: Here. Page 2 October 7, 2008 COMMISSIONER VIGLIOTTI: Commissioner Homiak and Commissioner Wolfley is absent. We do have a quorum. CHAIRMAN STRAIN: Okay, thank you. Okay. Now, Catherine, when we started these meetings off each time, Susan indicated you may want to do an introduction. Just feel free to do it so the record's straight, then we'll go on. MS. FABACHER: Thank you. This is a continuation of the hearing that was extended from Friday the 26th, September, to today of the LDC Cycle 1 of 2008. I've handed out a checklist today that shows the four we'll be hearing, and then we have one, two, three, four, five, six, seven amendments left to hear, and we have run out of dates. And that's about all the information I have for you today. CHAIRMAN STRAIN: Well, let's hope we can finish the four today to a point where they can go back for rewrite and we don't need to have another date scheduled 'til the rewrites are ready. So in that regard, let's go to the first one, and it's Section 10.02.02, submittal requirements for all applications. And this one is for the EIS thresholds. And Steve, you get the fun of addressing us again today. And this one was a rather difficult grouping of pages to follow because it involves requirements for environmental review from an application perspective. And I was wondering, I think it might help all of us here, and even those watching to understand what currently is in process and what -- some of the terminology used here. And I have five agencies that I understand -- or I've seen referenced in here, and three criteria that I've seen referenced in here. If you could briefly -- I'll read them to you and if you could explain them to us a little bit as to what they do, so that as we're going through this document we already know what agencies are doing and then what Collier County is proposing. And the first one -- and the first three will say South Florida Water Management District, the Corps of Engineers, DEP, U.S. Fish Page 3 October 7,2008 & Wildlife and Florida Fish & Wildlife Commission. Can you kind of briefly tell us what environmental responsibilities are South Florida's currently and what the county relies upon from each of those agencies to date? MR. LENBERGER: For the record, Steven Lenberger, Engineering and Environmental Services Department. The South Florida Water Management District is in charge with the water resources of the State of Florida. They do the environmental resource permitting. There are certain exemptions which apply which are ..- which do not require mitigation. And those would be basically impacts to uplands. When you start impacting wetlands, particularly if it's a half acre or more, then there's extensive review to analyze the impacts to those wetlands and to address compensation for mitigation. The Army Corps of Engineers will review projects for wetland impacts. They also issue a permit. An application is submitted to the state agency, that being South Florida Water Management District in most cases, a joint application. A copy goes to the Army Corps of Engineers for their review. CHAIRMAN STRAIN: Okay, now, the process through the South Florida is the ERP permit process, which is Environmental Resource Permit. And South Florida and the Corps both establish jurisdictional lines for wetlands, is that -- MR. LENBERGER: That's correct. CHAIRMAN STRAIN: Okay. And the next one after that would be DEP. MR. LENBERGER: The DEP. They do some of the environmental resource permitting for the state, what they're delegated to by state law. They'll do all your marina facilities, for example. They'll do all the permitting for boat docks. So in those instances where the South Florida Water Management District does not issue a permit, it's under the authority of the DEP. And it's also ajoint Page 4 October 7, 2008 application to the Army Corps of Engineers for those activities when it involves open water or wetlands under the Corps authority. CHAIRMAN STRAIN: Okay. And at certain elevations-- certain points along the way, some of these agencies do public notices and receive public comment? I know the Corps does. I'm not sure about -- I know in certain permit requirements, the DEP does. MR. LENBERGER: Yeah, I don't know about the state. I do know the Corps has a public notice they issue for permits. CHAIRMAN STRAIN: What about u.S. Fish & Wildlife and then the Florida Fish & Wildlife Commission? MR. LENBERGER: These are wildlife agencies. They have jurisdiction over the listed species in the state. There are different lists. Some are listed by both agencies, some are only listed by one. But that's the jurisdiction they have. The state and the federal government usually comment during the review process for an environmental resource permit with the District and Corps. It's been my experience that both those agencies really primarily comment during the public notice for the Army Corps of Engineers during the permit review. And that's when they add conditions or do review under the Endangered Species Act or whatever the particular laws they're required to follow. CHAIRMAN STRAIN: During -- since some of those are state agencies and others are federal, are we obligated to accept their results as a minimum standard for Collier County? We can't accept less than what they would; is that correct? MS. MASON: Yes, that would be correct, that if they require something, we can't overrule them and make it easier. CHAIRMAN STRAIN: Right. And then Steve, there are three acronyms, and I know Tor loves acronyms, so I thought we'd talk about those a little bit. The first one is your FLUCCS maps. The second one is UMAM Page 5 October 7, 2008 scores and the WRAP scores. I was wondering if you could explain the -- how those three interact with the agencies in different reviews. MR. LENBERGER: I put on the visualizer the Florida Department of Transportation's cover sheet for their Florida Land Use Cover and Forms Classifications System. That's what FLUCCS stands for. And it's used by -- well, not just the DOT, it's used by all the regulatory agencies to identify the different types of habitats, whether it be an altered site or a native habitat. It's just a numbering system that's assigned per different type of habitat. For example, pine flatwoods are in the 400 category, cypress are generally in the 600 category. And this is how they identify different habitats. CHAIRMAN STRAIN: Now, in order to identify the habitats, they don't ground truth it, do they, or do they do it by aerials, or how is that done? Or is that just saying that if you have this cover, this is the number you use, and they don't really go county to county and identify the actual habitat? MR. LENBERGER: The descriptions in there are kind of generic descriptions. They have to fit different areas of the state. And obviously, you know the southern part of the state does vary from the northern part of the state. So there are some differences and gradations. So the classifications they use are in the context where they can be applied both north and south. Some are only applicable to a specific region, but the ones that are statewide, they're generally written so they can encompass all those different habitats. CHAIRMAN STRAIN: Okay. So an applicant would have to determine what FLUCCS map designation applies to the various components of his parcel. And using that they determine a rating through the ERP process on whether it's a particularly environmentally sensitive area or not so environmentally sensitive? MR. LENBERGER: That's correct. Generally the FLUCCS determinations are done by aerials initially, generally through the Page 6 October 7, 2008 bigger picture, your flowways, you might have your pine habitats. You can read different aerial interpretation on what these different signatures mean. And then the consultant go out to the site and ground truth it to verify that the habitat is true to what the FLUCCS code they have identified previously. CHAIRMAN STRAIN: Okay. And what about UMAM? MR. LENBERGER: UMAM is an evaluation of a site. It's the current methodology used by the state to assess the functionality of a wetland. WRAP is the older method. But some projects are vested under WRAP scores and some are using UMAM, the newer ones. This is why we have both of them listed in our amendment. Basically it identifies the site to be impacted, functionality score, and also addresses any mitigation site. And the mitigation site, also what needs to be done to bring that up to a condition which will meet our -- the habitat being impacted. And based on that, ratios are developed on what acreage of mitigation, what cost of mitigation is involved for the agencies. CHAIRMAN STRAIN: Okay, so basically there are five agencies referenced in here, at least that I could find, that somewhat involve themselves with environmental permitting. And within those five agencies there are at least four levels of documentation that they use to assist in their evaluation supplied by analysis from the applicant, I would assume FLUCCS maps, UMAM and WRAP scores. MR. LENBERGER: They use all three of those, yes. CHAIRMAN STRAIN: And do the agencies themselves, for example, say they took a remote site in Collier County, someone wanted to develop it and they came in and produced an ERP, submitted it to the five agencies, submitted all their FLUCCS maps, UMAM scores, WRAP scores, either one they would then pick to fill Page 7 October 7, 2008 out the documentation needed. Would the agencies come out and physically inspect their property? MR. LENBERGER: The agencies do inspect the property. They inspected one for the wetland line, that would be the wetland jurisdictional line, to verify that it's in the right location. And then they'll also assess properties later during the UMAM or WRAP analysis. CHAIRMAN STRAIN: Okay. And as far as the Corps and South Florida, when they do wetland jurisdictional lines -- I know they each do their own, they're each culled out and they're each walked with the biologist on the property. When those lines vary, the county I guess is obligated to accept the most stringent of either one, because you can't do anything less; is that right? MR. LENBERGER: Actually, the state law requires us to adopt the state line. CHAIRMAN STRAIN: Okay. Can the state line be less than the ACOE Corps line? MR. LENBERGER: Yes, it can. CHAIRMAN STRAIN: So then how does the Corps then justify us accepting this lesser line than what they would if they're the -- regulated by federal government? MR. LENBERGER: They do their own permitting. CHAIRMAN STRAIN: Oh, okay. So regardless, if the Corps disagrees with South Florida and the Corps wants more, before you get a Corps permit you're going to have to give them the more. MR. LENBERGER: Yeah. You'll have to analyze it basic to their -- analyzing with their criteria, yes. CHAIRMAN STRAIN: Okay. I wanted to make sure -- I don't know how many of you on this panel were familiar with this kind of permitting. I thought it would be help just to provide a little bit of a refresher onto the levels of scrutiny that already occur before we got Page 8 October 7, 2008 into this particular issue. Steve, if you have opening comments, we're more than welcome to hear them, then. COMMISSIONER SCHIFFER: Mark, can I ask a question? CHAIRMAN STRAIN: Go ahead, Tor, and then -- I mean Brad, then Tor. COMMISSIONER SCHIFFER: You know, last week we were discussing the groundcover and the percentage of it, and we were discussing higher as an elevation of the groundcover. Are you sure the higher doesn't mean the FLUCCS score? Remember where it said that you would take the highest cover -- MR. LENBERGER: No, it would be the -- we were talking about strata, if I remember correctly. No, it's not the FLUCCS -- it has nothing to do with the FLUCCS designation for that site. We were dealing with strata elevation. COMMISSIONER SCHIFFER: And we're sure of that? MR. LENBERGER: Positive. CHAIRMAN STRAIN: Tor? COMMISSIONER KOLFLAT: Now, if an applicant contacts DEP, is it not true that DEP might solicit comments from other agencies, such as the Corps? MR. LENBERGER: I don't know exactly how they do their procedure, but I know there is a joint application, which is automatically sent to the Corps. COMMISSIONER KOLFLAT: So the Corps will participate in anything that has been risen as a question to the DEP? MR. LENBERGER: I don't know exactly how they coordinate it. But the wildlife agencies and the Corps will all be involved. I don't know exactly the coordination you're asking. CHAIRMAN STRAIN: The DEP generally sends a notice to the Corps that they've received an application with usually a copy of the application, asking for a comment within a period of time. And if the Page 9 October 7, 2008 Corps feels it's something they want to participate in, they'll make a comment. And then that's how the Corps gets in, if at that point they want to get in, if they're not previously required. COMMISSIONER KOLFLA T: Thank you. CHAIRMAN STRAIN: Steve, did you want to do any opening comments on this, or just dive right into it? MR. LENBERGER: The amendment is for an amendment to the Environmental Impact Statement section of the code. And it's basically to look at the thresholds for requiring an EIS and to analyze what environmental information would be required to evaluate a project in lieu of an EIS being required. And that's basically the gist of the amendment. We can go page by page. I have been reading this and thinking about it. I have a few comments along the way, and -- CHAIRMAN STRAIN: Well, we're going to have a lot of comments, Steve. MR. LENBERGER: As we go page by page, I think that will be the best. CHAIRMAN STRAIN: Well, we certainly appreciate your patience, because you've been very good to deal with since this has started. On Page 219, does anybody have any comments? Tor? COMMISSIONER KOLFLAT: Yes. On 219 you indicate that you demonstrate no increase in lead, zinc, copper loadings in the post-development scenario. Now, I have to ask you to move to Page 222. Under 3.i. MR. LENBERGER: Just excuse me one second. My numbering's a little off on mine, so I'm just going to verify what season I'm on, how many pages off. Okay, all right, go ahead, 222. Page 10 October 7, 2008 COMMISSIONER KOLFLAT: Well, yes, the first page mentioned lead, zinc and copper. But if you look at iii there down at the bottom of that paragraph, it says also no increase in nutrients, biochemical oxygen demand or total suspended solids. Why is there a disparity between those two? The first page indicates what we're interested in and this here elaborates and adds some other items. MR. LENBERGER: The previous requirement is indicating the additional requirement for adding zinc and copper and lead and suspended solids. Let me just read number three so I understand exactly what they're saying here. I believe that's in the compo plan. I'd have to check. I put the compo plan language on the screen here. Does that answer your question? Existing single-family homes. Any product impacting five or more -- five acres or more of wetlands must provide a pre and post-development water quality analysis to demonstrate no net increase in nutrients, biological oxygen demand, total suspended solids, lead, zinc and copper loadings. COMMISSIONER KOLFLAT: I think the thing that bothers me is the disconsistency (sic) here in that the first change indication or representative change was that lead, zinc and copper would be added. But when you read in the body of this, there's also nutrients, biochemical oxygen and total suspended solids. CHAIRMAN STRAIN: Tor, you need to bring your speaker a little closer to you, if you could. Thank you. But see, Steven, Tor's hit on a problem in that section. If you read on Page 221, it says the following information is required for all development, yet the GMP says for five acres or more. Is that an inconsistency with what the GMP says, or should it be written a little more clearly? MR. LENBERGER: These are general submittal requirements, Page 11 October 7, 2008 environmental submittal requirements. And they're required for all development orders. But this particular one, although it's required for all, it's only applicable to site development and construction plans impacting five or more acres. I included it there, but I did spell it out that it only as it applies to those with five acres or more, impacts to wetlands. CHAIRMAN STRAIN: Okay. Tor, did you have more to -- COMMISSIONER KOLFLA T: No, other than therefore the nutrient and the biochemical oxygen demand as well as total suspended solids will be -- have to be a demonstration that it's no increase; is that correct? MR. LENBERGER: That's correct. COMMISSIONER KOLFLAT: Thank you. CHAIRMAN STRAIN: Okay, on Page 219, Steve, this -- I've got a question on 219. It's actually to do with the EAR language, the first group of language that you had up there. I think it's above this one. The last sentence that was added, county's land development regulations still establish their criteria for determining the type of proposed development requiring an EIS. It doesn't say that you're going to establish criteria for ones that aren't going to have an EIS. It says you'll establish the criteria for ones tbat are going to have an EIS. Now, if you take that philosophy a step further and read the balance of that sentence, it says, including the -- one, the size and nature of the proposed developments. So that's one criteria. Two, the location. Three would be the degree of site alterations. And four, other pertinent informations. So it seems to me that the policy's looking for when an EIS is going to kick in based on those four criteria to be elaborated in the LDC. Page 12 October 7, 2008 Why did we -- what part of this brings in the balance of all this new language we have for areas that are not part of an EIS, or not required to do an EIS? MR. LENBERGER: If you look on the visualizer, I put the complete language up there except for all the struck through. And it says here, an Environmental Impact Statement, and then the additional language says, or submittal of appropriate environmental data as specified in the county land development regulations that is required -- CHAIRMAN STRAIN: Right. And I would read that as to say okay, we're going to either come up with a criteria for an EIS or we're going to come up with a criteria for other appropriate data as needed for those items that qualify for the four items down below that we're concerned about. It doesn't say we're creating a whole new section of the code for non-EIS projects. And I don't know how you got to this language. And I mean, I've got a lot of problems with the language, page after page after page, because it's more like an EIS for everything. Although I understand what you're trying to do, but it doesn't get there, from what I can see, and I'll certainly demonstrate that in our discussions here today. I just don't see the need for all this new language. I'm real concerned about it. And I don't know where -- I don't believe the EAR or this policy supports that new language. So that's right off the get-go where I've got a concern with. But in deference to the fact you wrote it, I'll still walk through everything today. But in the end I don't see the need for it. So I don't know how you got there or how somebody got there. I sure don't blame you for everything, Steve. Any other questions on Page 219? (No response.) CHAIRMAN STRAIN: Okay, if we turn to Page 220. Page 13 October 7, 2008 COMMISSIONER MURRAY: I have a question. CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: Steve, my question relates to Page 220 and the fiscal which has to relate then to 221, number 2.A, wetlands, i. Got it? CHAIRMAN STRAIN: You're on page -- what page are you on? COMMISSIONER MURRAY: I'm on 221. I'm referencing 221 by 220 having to do with fiscal. CHAIRMAN STRAIN: Yeah, I just wanted to make sure we're following. COMMISSIONER MURRAY: No problem. CHAIRMAN STRAIN: 2.A.i? COMMISSIONER MURRAY: Yes, sir. And have you got it, Steve? MR. LENBERGER: Okay, so you're -- COMMISSIONER MURRAY: Okay, I haven't gotten to what I was going to say. I just want to know, you're at the point? MR. LENBERGER: Yeah. COMMISSIONER MURRAY: Okay, here's my question: It says, where wetlands are suspected of occurring. And my note is by whom and on what basis. And I know you said something about a consultant before. My concern is if it's suspected, and I realize you're talking about perhaps the aerials and so forth, however it's suspected. But what science do we have? I mean somebody -- yeah, I think there's a wetland on there. Now that requires a fiscal impact. And going back to Page 220, and I'll read it to you, changing the thresholds when an EIS is required will save time and expense on the part of the staff and the applicant. So my concern is suspected. That's a very interesting word there. So want to help me understand that a little bit better, please? Page 14 October 7, 2008 MR. LENBERGER: Absolutely. An environmental consultant will look at the property, and if they suspect wetlands, they'll evaluate the site for jurisdictional wetlands, because they'll have to know that information at the time they go in for an ERP permit and for permitting with the county, if there's jurisdictional wetlands on-site. So they'll look at the site and they'll make an evaluation if they think there's wetlands on-site. COMMISSIONER MURRAY: What savings would be realized for the applicant in that connection then? He has to hire a consultant -- MR. LENBERGER: Right. COMMISSIONER MURRAY: -- because who inspects it? MR. LENBERGER: Much of the information on your environmental submittal requirements on Page 221 have to deal with site plan review. These basic site plan review, the basic raw data they obtain, whether it pertains to wildlife, preservation of habitat or wetlands determinations for -- are all information they need during their environmental resource permit process with the state. And if they're impacting wetlands, they'll also need that information for the Corps of Engineers. So there is no net decrease or increase. That's a wash. That's basic information that they'll have to obtain. COMMISSIONER MURRAY: Okay. So the savings that the statement makes here, savings on time and expense on the part of the staff and the applicant is not applicable to that. MR. LENBERGER: Not the raw data. The raw data they're going to have to analyze anyway during the ERP process. COMMISSIONER MURRAY: So it's rest of this that the . savIngs -- MR. LENBERGER: You have to look at the differences between the environmental submittal requirements and the Environmental Impact Statement requirements. Environmental Impact Statement requirements requires a document with all this information Page 15 October 7, 2008 in it. A lot of this other information related to the environmental submittal requirement is more related to the site plan. And a site plan review, that's where the applicant will put this information, they'll put their FLUCCS codes, they'll put their wetland lines on the site plans and on aerials and whatever site plans they need, which will be submitted to the South Florida Water Management District. And if they're impacting wetlands in the jurisdiction of the Corps, also the Corps of Engineers. So it's basic raw data. That's the way this was structured in the environmental submittal requirement. COMMISSIONER MURRAY: Okay. And I appreciate that. I guess my concern then is the use of the term suspected, because it sounds to me from your statement that it's not a matter of suspicion, it's a matter of performance that -- MR. LENBERGER: It has to be analyzed. COMMISSIONER MURRAY: So why do we have a statement that says where wetlands are suspected of occurring if it's a condition that's going to be qualified no matter what? MR. LENBERGER: There have been a couple instances where wetlands were on-site and the consultant didn't identify them. And I don't know a project specific to those. Perhaps Susan can elaborate. But that has happened on rare occasions. COMMISSIONER MURRAY: I'm just trying to understand. And I can appreciate if it's raw basis, and you have to go from get-go, and you're going to hire a consultant anyway. I'm just trying to figure out, I don't know why you'd want to even put in the term suspected. You know, if that's a standard operating procedure to check everything, I don't even know why you need a prerequisite determination there. MR. LENBERGER: This is the county requirements. And it shows you the basic information. We need it on our site plan to Page 16 October 7, 2008 effectively evaluate a project. Just for comment, we talked about the size and nature of the proposed development earlier, locations, site alterations. We probably need to talk about that when we get to the section with the EIS requirements and what projects qualify. So just keep that in mind. COMMISSIONER MURRAY: Could you cut that sentence down and maybe for your own benefit, I don't know, maybe, but on the second sentence there it says, where native vegetation occurs or is suspected to occur. Maybe that will help you in that regard. Or maybe you don't have to change anything. But I have my answer from you. Thank you. CHAIRMAN STRAIN: Okay, anybody else? We're supposed to be on Page 220. Does anybody have any questions on Page 220? (No response.) CHAIRMAN STRAIN: Steve, I've got two questions on Page 220. Fiscal and operational impacts. I understand what you're saying there, but it doesn't give us anything. There are costs involved in the process, and I think you need to quantify or qualify that with a value, because this -- this is quite at few pages of additional regulatory data that duplicates apparently in some ways what is already being requested by other agencies. And if that's the case, if that is really what you believe, then simply say that under environmental submittal requirements the requirements for the ERP will be copied to this agency or whatever, something of that nature. You don't need to go through and recreate the whole book on what the environmental process is for submittal, simply say provide the ERP application. And if that's not what your intention is, tell us here today. Page 1 7 October 7, 2008 COMMISSIONER MURRAY: Yeah, please. MR. LENBERGER: Our intention is to have the appropriate data put on the site plan required by the county so we can effectively evaluate the project. CHAIRMAN STRAIN: Didn't you just tell us it was the ERP - submittal. MR. LENBERGER: We don't review the ERP. We review the ERP for consistency with the county project once the permit is issued, but we do not review their plans in lieu of county plans. The county has requirements, submittal requirements for site plans of specific sizes and certain information, and we need that information on those plans to effectively evaluate the project. Also, when a proj ect is approved, it gets scanned and it is the site plan which is used as a reference point by applicants who want to amend a plan, for inspectors who want to look at something, for code complaints. It is the site plans which are retrieved. That's why we need the information on the site plans. CHAIRMAN STRAIN: But don't they provide site plans in the ERP app -- wait a minute, I know they provide site plans, because I do that. So in the site plans that we provide for ERP applications, they're almost a mirror image of the SDP's. Why can't you just get another set of those and scan them and keep them? I don't understand why you have to have another special set made up just for your department. MR. LENBERGER: Because the county has to approve the plans and the plan set that we have it on the county, we need them on our site plans. Just for your information, a lot of those plans, they are the same. They're at a much reduced scale, but they are taken from the county plans. The engineer is working on the same drawings. Go ahead, Susan. MS. MASON: Excuse me, if I may interrupt. My name is Susan Page 18 October 7, 2008 Mason, with Collier County Environmental Services Review section. And the state rules for regulating wetlands primarily, along with the listed species thing. The county does have different standards for natural native vegetation retention that it is not always the same. So while all the plans have to be consistent, if the agencies allow impacts to wetlands, we must ensure that the plans that we approve also show no more impacts than what those agencies had permitted. But there could be different issues with if it's a count preserve, there may be setbacks that are required, or different plantings that are allowed within an area in relation to a preserve. All the plans have -- the plans have to meet the requirements of all the agencies, but the agencies do have different regulations. And it's -- and some permits are -- go through and they don't have the level of detail that the county requires in our review. They do provide us with their staff report and exhibits for the ERP or for the Corps permit so we can compare and make sure that their wetland impacts that they're requesting from the county are consistent with what was permitted by those agencies. But the requirements are not identical, and not all the information that's in an ERP application will answer all the questions that we have. They can duplicate some of those, like if it's a FLUCCS map, it should be an accurate FLUCCS map that all agencies can accept. So those kind of things they could just reproduce another copy of in a legible format. But like Steve was saying, we'll normally get copies of those plans that are on eight-and-a-halfby 11 sheets of paper, and much if not all of it is illegible. And the county requirements are for larger sheets of paper at this point, much larger. So they would be in a scale that we could read and measure and verify and the inspector can use and that type of thing. CHAIRMAN STRAIN: It's an answer I would have expected out of Randy Cohen. He provides those kind of details to a simple Page 19 October 7, 2008 request. And that's not bad sometimes, but in this particular case, I'm concerned, because the whole premise of this whole operation is supposedly to save money and time and expense on the part of staff and the applicant. Now I'm finding out that's not really true. We want everything you've given to all the other five agencies, plus now we want more stuff that we specialize in but we're not going to tell you exactly what we're looking for unless you dig through this document to find it. If that's what you want, why don't you say environmental submittal requirements are required in addition to the state and other agency requirements, and just list them. And then tell us what they are, because I can't figure it out. MS. MASON: There is definitely a cost saving to the applicant. This would weed out a certain percentage of projects that are currently required to do an EIS. Right now it's almost any parcel that's 10 acres or larger has to do an EIS, and there are definite fees. Besides the consultant preparing it, there's a $2,500 submittal fee that covers two reviews. And resubmittals have more fees relate to review time. In addition, if it has to go to the Environmental Advisory Council, the applicant has to provide, I believe it's like 14 copies for the various staff members and all the EAC members, including the alternates. There's a lot of expense that would be avoided if we can just get the information on sites that don't require the EAC's evaluation. Just some things like that. CHAIRMAN STRAIN: Bill? MR. LORENZ: Yes, I'm sorry, I was out in the hall talking about something else. And I think I understand the context of the questions. The purpose here is to ensure that we have the information, whatever information we need to have to apply the Land Development Code provisions for identifying size, location and what types of Page 20 October 7, 2008 habitats typically a preserve is required. That's first and foremost. So the information that we need to have is, I think what staff is listing here it's typically has been in the original EIS section for the most part. And so what we're trying to do is we're trying to say that if you're not required to do an EIS -- so we set the thresholds differently for what's required for an EIS, which then has to go through a whole separate process -- if you're not required to do an EIS, you're still required to provide us the data and information so that we can apply the Land Development Code provisions for determining preserve location, size, et cetera. And what we've done is we've listed the information that's typically needed to do that, and that parallels the EIS requirements. Some of that information is similar or the same as what the applicant is supplying to the agencies. But we also need that information to apply our Land Development Code criteria to it. Now, there's two ways of doing it. One way could be that we list the information that you see here, and maybe we can do it in a different format. But that's the information that we will gather to evaluate it. Or we simply have like a one line statement that says the applicant is responsible to provide all information to establish preserve requirements, et cetera, et cetera. Of course at that particular point you're not listing the information. Somebody picks up the code, they may not give us the information we need to have to do our evaluation of their proposed preserve location. So that's just a little bit of a -- comments here to maybe help move the process forward as to what you may want to see. CHAIRMAN STRAIN: Your started out your statement by saying this was taken out of the EIS section. Right, it was. You just took it and reprinted it in the non-EIS section. So now we have two sections that are EIS sections. Page 21 October 7, 2008 I just don't understand at all what the gain is here, especially on the parcels that are supposedly exempt from an EIS. If they're exempt from the EIS, number one, they don't have that kind of sensitivity that requires, from what I can understand, five new pages of regulation for scrutiny. This is just absurd. MR. LENBERGER: May I offer comments here. CHAIRMAN STRAIN: Go ahead, Steve. MR. LENBERGER: First, some of the -- a lot of the information is on the site plan, and we require that. But there are some things on here, we can create a separate section, just referencing certain things. For example, special treatment overlays, the Manatee Protection Plan. We can create a smaller section just referencing the sections to help applicants and staff, have checklist, so to speak, referencing those areas. It would be good for this section, it's very good for this section, because it is under Section 10.02.02, which are submittal requirements for all applications. And the title of this is Environmental Impact Statements and other environmental requirements. So this would be a good place to actually create those references. And we can do that, and that would shorten it. CHAIRMAN STRAIN: If that would reduce the five pages to something less than we have here today, that would be a move in the right direction. Plus if it was done in simple English, it would be a great move in the right direction. But now back on Page 220.A, Environmental Impact Statements, and it says, and other environmental requirements. I'm looking at the language you have on the overhead and it says, or submittal of appropriate environmental data as specified. It doesn't say and additional data. If it's an EIS why do we have the word and in there, why isn't it or? Or why do we need it if it isn't -- MR. LENBERGER: We'll or in there, that's fine. Good point. CHAIRMAN STRAIN: Now we move to Page 221. Page 22 October 7, 2008 COMMISSIONER SCHIFFER: Before we leave that. CHAIRMAN STRAIN: Mr. Schiffer. COMMISSIONER SCHIFFER: And I think on that line, you should bold Environmental Impact Statement and put in parenthesis EIS, just to start to set up the fact that that's a separate entity. I know you do it on the chapter, you do -- Mark, there's one question I have in terms of format. Would it be best to talk it now or at the end -- CHAIRMAN STRAIN: Sure. I think you just need to -- as it comes to say your mind, so we don't forget, this stuff needs to be brought up. So just keep bringing it. COMMISSIONER SCHIFFER: I think it's appropriate that number one is the purpose. But I do think number two should be where it applies. And then the third thing I think you should get into is the exceptions to it. The fourth thing I think you should get into is the EIS, and then I think if you want to bring in this other environmental requirements. But I think it's really important for somebody to know what your intent is, know if it applies to them or not through the applicability or the exceptions right away, not at the end like you've organized it. That's my point. CHAIRMAN STRAIN: Okay. Anybody else? I have no problem with -- anything to clarify this is -- we should be looking at. MR. LENBERGER: Just so I got this straight here. The purpose. Two, you want to keep the environmental requirements there, just say where applicable or -- COMMISSIONER SCHIFFER: No, I think what you should do, number one should be the purpose. I guess we could go through it. Number two maybe should be what you have now as number -- well, I mean, number three, is it? COMMISSIONER CARON: Applicability. COMMISSIONER SCHIFFER: Yeah, number three. Page 23 October 7, 2008 MR. LENBE~GER: Applicability? COMMISSIONER SCHIFFER: And then I think number eight is your exceptions to the EIS. And nine is exceptions too. In other words, just a drift. Of anybody reading the code, they should really -- you know, you should layout what you're up to. B, does it apply to me and that's through applicability and exceptions. And then you could get into the requirement. If in there you could differentiate, because the point Mark's making is true, you have two things going on here. You should certainly differentiate when an EIS is required and then when it isn't required, this other thing is required. And make that clear towards the end. That's all. CHAIRMAN STRAIN: Okay, let's move to Page 221. Are there questions on Page 221 ? COMMISSIONER SCHIFFER: I have one, Mark. CHAIRMAN STRAIN: Go ahead, sir. COMMISSIONER SCHIFFER: The building permit, that's kind of like a -- what are we really intending to do there? And again I maybe should study the exceptions. But if a guy has a restaurant and he's building a new little dining room on the side of it, he would be required to show all this information, correct? I mean, would -- MR. LENBERGER: Well, it has to be applicable. And some building permits, for example, special treatment overlays, single families are required to have an Environmental Impact Statement. COMMISSIONER SCHIFFER: But my concern, for example, if he was going to do that, he probably would have had an SDP prior to that. So wouldn't that -- I mean, the word building permit scares me, because that means essentially every single building permit is up -- you're going to hold up for the light and decide whether it needs it or not and -- MR. LENBERGER: You look where it's applicable, it will tell you there, where it applies. So just a building permit per se won't Page 24 October 7, 2008 apply. COMMISSIONER SCHIFFER: It wouldn't apply? Then why do we have -- CHAIRMAN STRAIN: Can show us where it says that, Steve. MR. LENBERGER: It says -- where the applicability -- you have to excuse me, my page numbers are a little different than yours. COMMISSIONER CARON: We're on Page 225. COMMISSIONER SCHIFFER: But I'm not as worried about the EIS. I think we've got a history of that. It's the --like number nine on Page 235+++ Where you have other. This is where the other starts to reign, and I'm -- MR. LENBERGER: You have to excuse me, my pages are all mis-numbered here. COMMISSIONER SCHIFFER: It will be number nine. MR. LENBERGER: I got it. I'm just going to number them right now so I don't get lost during this discussion today, excuse me. COMMISSIONER SCHIFFER: Anyway, I think to sum my question is up is, is not that something that should be handled at the SDP level and not at the building permit level, and just using the word building permit could cause confusion. MR. LENBERGER: It can be -- can apply at the building permit stage. COMMISSIONER SCHIFFER: Give me an example of -- MR. LENBERGER: But I understand what you're saying. I'd have to think about the building permit issue. You know, we can tie single- family to S T permits that would require it. We can require it to a site development plan. I'll have to discuss that with staff and the attorneys office, just to get clarification. I understand what you're talking about. COMMISSIONER SCHIFFER: And then the experience I have is I think the co~nty's very tight, that, I mean, you really need an SDP.: Page 25 October 7, 2008 If you don't have one, that will be part of the -- so in other words, at that level it makes sense. But at any other level it may be -- MR. LENBERGER: I'll discuss it with staff. Thank you. CHAIRMAN STRAIN: We're on Page 221, does anybody else have any questions? (No response.) CHAIRMAN STRAIN: Steve, on 2.A.!, when we talk about-- Mr. Murray brought up the word suspected. Why don't we just simply say who the wetlands -- where wetlands are determined by, and then state who it is you believe is the right person qualified to make that determination. And then we don't have suspected anymore. MR. LENBERGER: That's an excellent point, thank you. CHAIRMAN STRAIN: Fourth line down, site plan, the location of all, and it says, Collier County jurisdictional wetlands. Same language is again said in the sixth line down. And I'm just wondering, what's the difference between Collier County jurisdictional wetlands, South Florida jurisdictional wetlands, Corps of Engineers jurisdictional wetlands and/or DEP jurisdictional wetlands? MR. LENBERGER: The county jurisdictional wetlands are the same as the state agencies, that being the Water Management District and the DEP. CHAIRMAN STRAIN: Why don't we just say that, or just drop the reference to Collier County jurisdictional wetlands, since that's not what they are, they're state or Corps. MR. LENBERGER: I believe it's stated like that in the compo plan. I'll let management speak on that. CHAIRMAN STRAIN: I mean, if ours are the same as theirs, why don't we just have uniform language so we know what everybody's referring to. Because if I was reading this and didn't know the answer you just provided, I would assume then Collier County must have its own way of figuring it out, on top of all the other Page 26 October 7, 2008 . agencIes. COMMISSIONER MURRAY: That's what I -- sure, that's what it says. CHAIRMAN STRAIN: Why don't we standardized the reference to the way you pick it up jurisdictional wetlands and then let's leave it at that and then-- MR. LENBERGER: Well, it's in the compo plan on, the wetlands shall be verified by the state. It is explained in there. And I'd like to take a look at that language first before I just change it, to be consistent with the compo plan. CHAIRMAN STRAIN: That's fine. I'd just like there to be consistency so we all know what they're talking about. Okay, let's go to Page 222. Are there questions on Page 222? (No response.) CHAIRMAN STRAIN: Steve, on III up on top. MR. LENBERGER: Yes. CHAIRMAN STRAIN: It's talking about site development plans. But if the ERP already does this, and if they're exempt from an ERP, would they then be exempt from Collier County? MR. LENBERGER: If they're impacting wetlands that are under the jurisdiction of the state and the county, they wouldn't be exempt from an ERP. CHAIRMAN STRAIN: Okay. Is there any wetlands of any size that are exempt from the state or -- MR. LENBERGER: Under a half-acre. CHAIRMAN STRAIN: Okay, so do we have that provision here? MR. LENBERGER: We, it just says five acres or more. It's covered. CHAIRMAN STRAIN: Okay, so if it's greater than an acre up to five acres, we still require it and they don't? I'm trying to understand what -- if a half-acre or less is exempt, do we provide that same Page 27 October 7, 2008 exemption? MR. LENBERGER: Do you want to answer that? The permitting with the state, they use a half-acre threshold, and they'll review projects, but I don't believe mitigation is required for the half-acre. These are the state criteria, not what the county uses. CHAIRMAN STRAIN: Okay. I might get the answer before the day's over. I understand it for -- MS. MASON: This paragraph, though, is only for projects that are impacting five acres or more wetlands. And I do know that with the smaller wetlands like that there is exemptions. But normally, and I don't know all their language, they'll issue like a sort of a noticed general permit type thing. It's a permit but it's apparently a more simple process. But they still do, they'll do the lines, they'll approve the lines, and then their mitigation for any wetlands impacts are different based on the size and the connectivity of that wetland. But this paragraph, Roman numeral III on 222, starting with site development plans, that is just for impacts of five acres or more of wetlands. CHAIRMAN STRAIN: Okay. Well, let's move on then. The rest of that page under B, it says listed and we're back to the word protected. And I notice it got through in this entire section, it pops up everywhere. I'm assuming you're going to clean that up? MR. LENBERGER: Right. This is the version that hasn't been changed since your initial comments. CHAIRMAN STRAIN: Understand. MR. LENBERGER: We acknowledge. CHAIRMAN STRAIN: The first sentence says, a wildlife survey shall be required for all parcels. And it will say now when listed species. Now, first of all, don't the agencies require the wildlife survey? MR. LENBERGER: Well, first let's back up. Did you want to add bald eagle in there? We talked about this before. I believe you Page 28 October 7, 2008 were going to be listed species or bald eagle; is that correct? CHAIRMAN STRAIN: Yes, the bald eagle is supposed to be in there. MR. LENBERGER: I just clarified that. CHAIRMAN STRAIN: What I'm trying to get at is, that paragraph, isn't it already required of the state or federal agencies to do the surveys anyway? MR. LENBERGER: I don't know their standard protocol for all sites. I know the wildlife agencies will want wildlife surveys for certain projects for sure. What threshold triggers that, I know certain areas they've identified as definitely areas of like RCW woodpecker foraging habitat, so they definitely require surveys in those areas. But do they do on every parcel? I don't know for sure. CHAIRMAN STRAIN: Well, why don't we look and see what they require so that the same document that they require can be used by the applicant who doesn't need to put in an EIS. Otherwise when they get done doing these surveys, they're getting into the same level of involvement that a full EIS would take. So I'm just wondering why don't we just utilize these other agencies' paperwork if they require it? MS. MASON: They'll provide us with information, as long as it's current, and it -- if you read farther down it says it has to be consistent with the agencies' guidelines. We definitely accept those. And that's mostly what people do, is they'll do one survey and they do it consistent with the guidelines of the agencies, and they provide it to everyone who's -- needs it, whether it's an ERP or if it's just County review if there's wetlands impacts. CHAIRMAN STRAIN: What I think I'm trying to get at is, if the agencies don't require it, the federal and state agencies don't require it, who list these species, do we? And if we do, why? How is that simple? MR. LENBERGER: This is meant to require a survey if there are species on-site -- Page 29 October 7, 2008 CHAIRMAN STRAIN: Right, if there are-- MR. LENBERGER: It's not to say every site is going do a listed species survey. That's not the intent here. COMMISSIONER MURRAY: It does say -- MR. LENBERGER: It says where they're known to inhabit communities similar to those existing on-site or where listed species are directly observed on-site. We deal with a lot of projects, a lot of them are infill projects, to be quite honest. We don't want to require a wildlife species survey if it's not warranted. We go out on a site, we see a gopher tortoise burrow, well, you need to do a gopher tortoise burrow survey. But we don't want to say you have to do a wildlife survey. We want some flexibility here. We require it anyway. We don't want to make it onerous. We want a little flexibility here to say it's not really warranted here, you don't need to do it. CHAIRMAN STRAIN: Where do you feel that flexibility's built into this paragraph? MR. LENBERGER: If you'd like to change the language to make it clearer, we're open to suggestions. CHAIRMAN STRAIN: I'm trying desperately to follow the reasoning here. And the reasoning that I keep coming back to is we have five agencies reviewing in this state environmental applications of every size and type that could possibly be imagined. We have scores that have to be met, UMAM, WRAP's, we have FLUCCS maps that have to be studied. All that stuff is good. And I think the environmental community has done a darn good job on making sure that we've got a standard of protection. But now we seem to be adding stuff in here. And I'm trying to sort out what it is we think we're not protected by, so I know if we can evaluate it from this board's perspective if it's warranted. MR. LENBERGER: May I make a suggestion? There's two places here, one if it's known to inhabit biological communities similar Page 30 October 7, 2008 to those existing on-site. And two, it says, directly observed. CHAIRMAN STRAIN: Right. MR. LENBERGER: Instead of just saying known to inhabit biological communities, we can use language referencing areas identified by the wildlife agencies as requiring a listed species survey. CHAIRMAN STRAIN: There we go. That would clarify it. And it says, directly observed on-site. We learned in meeting about a month ago that that direct observation means someone just calling in on your neighbor and saying oh, I saw something on their property, and all of a sudden it's now directly observed on-site with no verification. So I certainly think that language is questionable. MR. LENBERGER: We can do directly verified by government agency or a consultant. MS. FABACHER: Environmental professional. MR. LENBERGER: Environmental consultant. MS. FABACHER: Environmental professional. CHAIRMAN STRAIN: By the way, that will be another issue before this is over, how we qualify what is an environmental consultant versus an environmental professional, and making sure that just an employee of the county who has no background except the day they got thrown in that department has decided they're an environmental professional. COMMISSIONER MURRAY: You betcha. CHAIRMAN STRAIN: So I would hope we can have standards that would have to be met, so -- on that same paragraph, the last sentence says, and it starts about five or six lines up, the recommended survey times may be reduced for small isolated parcels. Okay, how small is small. So I think that needs to be quantified. And where the likelihood. Here we are with that ambiguous language again. Who decides whether it's the likelihood of a listed -- and of course you're going to cross the word protected -- is low. Well, Page 31 October 7, 2008 how low is low? All that language in that last sentence is very ambiguous, and it isn't anything that anybody can know what to do by. I mean, 10 acres may be small parcel for some people, but then a half an acre may be what you were thinking. So could we -- if we're going to use that kind of language, I think it would be better if we were very specific about what our minimums were. The last line, additional survey time may be required if listed species are discovered on these parcels. Who decides that? And what does that mean? Who -- if it's required, it's required. Who's making the decision whether or not more has to be or not. MS. MASON: There are -- Susan Mason again. There are guidelines we have for survey requirements based on species and habitat type, and those are standards that have been created by Wildlife Commission personnel. Those are the ones that we really have in writing. And if they want a deviation from that to go with something less, at this point what we've had to do is require that they get something in writing, you know, an e-mail or something from a Commission employee saying that they understand that they've been in conversation with the applicant and with the information they've provided no more surveys are needed. And this would give some flexibility to county staff to try to make some of these determination if it's smaller, but at this point -- CHAIRMAN STRAIN: If you're going to use guidelines by somebody, why don't you reference the guidelines here so that everybody then knows what -- where they have to go and what to get. If it's a section of the code, reference the section of the code. If it's something else, reference it. And if we haven't seen it, get it to us so that we can see it next time this comes forward. MS. MASON: I'm putting up on the visualizer the section of the Page 32 October 7, 2008 Growth Management Plan, it's the CCME Policy 7.1.2, paragraph one, a wildlife survey shall be required for all parcels when listed species are known to inhabit biological communities similar to those existing on-site or where listed species are directly observed on the site. A survey shall be conducted in accordance with the requirements of Florida Fish and Wildlife Conservation Commission and U.S. Fish & Wildlife Service guidelines. The county shall notify FWC and FWS of the existence of any listed species that may be discovered. COMMISSIONER MURRAY: It says known --' CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: It's frustrating. It references, it , says known, right? And where listed --let's see, where's the only one. Where known or where listed species are directly observed -- where known observed, not suspected, not -- I don't know. CHAIRMAN STRAIN: Well, I think if you use the language here and the LDC implements the language by defining what you're trying to say there, we can get to where we have to go. And that's what I think you need to do. I don't think by -- that language is more conceptual and ambiguous, and if you define -- and then the LDC is supposed to be implementing that language, so why don't we use it for that, so -- go ahead, Mr. Lorenz. MR. LORENZ: And we may want to -- and we can talk amongst staff to see if we can work this out. But it could be simply that I think the language in your -- or some of the comments that I've heard from the commission is more geared towards if the agencies require the survey, the applicant simply provides that survey to us and we utilize that survey for the analysis of the preserve areas. Maybe we could be as simple as that. The gap, though, is when the agency doesn't require the survey and we may need to have it to analyze our information. Page 33 October 7, 2008 CHAIRMAN STRAIN: Well, then we just need to know when-- what -- when that exception, if the agencies don't require it but we want to, tell us what your criteria is for that 'we want to' part. And then that's the part that we then need to be focused on. Agencies already require it, doesn't hurt us to say just give us what they got. But if we're requiring more than they have for certain things, it would be nice for everybody to know that that is, where that level of understanding is. MR. LORENZ: Maybe we can take that tact of -- in the rewrite along those lines. CHAIRMAN STRAIN: Mr. Caron? COMMISSIONER CARON: Yeah, I was just going to say that whatever they require in the format that you need it, so if like Susan was talking earlier, you don't want the little eight-and-a-halfby 11 that's been copied 17 times and you can't read what's on there any more, you need whatever, 11 by 17 or whatever the size is you want, and all of that. I mean, that can be specified. But-- CHAIRMAN STRAIN: Ifwe move down the page, in II, besides the clean-up that we've already talked about, in the middle of the paragraph, it says wildlife management and monitoring plans shall be included on approved site development plans and construction plans. Don't those plans, the wildlife management and monitoring plans require you to list who the biologist is and who the responsible parties are and some other criteria that has to be flexible with time? And my concern is if you change one of those, you have to do an SDP amendment. Have you ever thought about that? Because right now aren't those provided in spiral-bound little booklets as a separate submittal? MR. LENBERGER: Preserve management plans, which a listed species management plan is a component of, are required on the site development plan.t Page 34 October 7, 2008 As far as amendments to that, you know, putting on the plan the owners and the -- homeowners association, whatever it is, who owns the property and the consultant, that's a discussion I'd have to have with management, because obviously things change through time. But that's the preserve management plan. We are going to go through that as well today, hopefully. CHAIRMAN STRAIN: I know, I had the same question when we get there, so -- COMMISSIONER MURRAY: Maybe. CHAIRMAN STRAIN: -- if you're thinking about it now then maybe we'll have an answer by the time we get there. Ms. -- COMMISSIONER CARON: Because we started to talk about that the other day too, about how exactly you attach these things to a site development plan, with some information that is extraneous to -- and others that are very necessary, so -- MS. MASON: Currently the way people submit it and it's provided is in the format that the LDC describes, where you have some standard, you know, you can't leave trash in your preserve and then you go into specifics about listed species management or some other exotic information, and they'll include the name of the property owner and the manager for that until that -- normally the way they do it is until the developer turns it over, this is who's responsible. And we have had a few but that have gone to the point where they want to change that but that's the only thing that needs to change; they get a new consultant or it's a new owner. And that does not kick in an amendment to the construction plans. They'll provide us with a letter from the homeowners association saying so-and-so is no longer our consultant, the new consultant is, and here's the information. We send that over to the records department who puts that in the file for that SDP and scans it in for that site development plan so code enforcement or whomever in the future needs to contact them has the current information. Page 35 October 7, 2008 But that start out on the same sheet. It could have a different place, it just makes sense at the beginning to put it there. But amendments of that kind of information do not trigger a substantial change to their plans. COMMISSIONER CARON: All right. So that's important information that Mr. Strain needed to know, because he's worried that they're going to have to come in and change their site development plan every time. And that's not the case, you say, all they have to do is give you a letter, you staple it to the plan and away we go. MS. MASON: There's no fee involved with that. It just -- I've gotten a couple addressed directly to me and then I just send it to the records department. CHAIRMAN STRAIN: When you have a break or sometime, will you let me know what section of the code allows staff to accept that kind of an amendment or change to an SDP? I'm sure if you're saying it can be done, it can be. But I'd like to know that so what way I can make a note of it for the future. MR. LENBERGER: I believe that was an interpretation by management. It's in the preserve management plan section of the code., You have that section. We're going to discuss it today. CHAIRMAN STRAIN: No, I mean the section that says you can change the language on the SDP by a simple letter to staff, that would be very -- MR. LENBERGER: That was an interpretation. There's nothing in the code regarding that that I know of. CHAIRMAN STRAIN: Who made the interpretation? MR. LENBERGER: Interpretation? CHAIRMAN STRAIN: How did that -- so now -- okay, where does interpretations like that end then? At what point can you change an SDP by a letter to staff? N ow you've opened up another can of worms I'd be curious in, Page 36 October 7, 2008 because we have changes that are listed in the code that are allowed, and staff is allowed to do some. I'm just -- don't recognize this as being one of them. So -- well, I'm sure I'll look further into that. On the last line of that page, it talks about bald eagles' nests and the copies of which shall be included as exhibits attached to the PUD document. So that means when we pass an ordinance, a PUD ordinance, is the intent here that the bald eagles management plan become a physical part of that ordinance and fall like a matter of law like the ordinance does? Because what happens then is if there's any changes needed, whether they're good or bad, they could be for the benefit of the environment or against, no matter what, you're going to have to go through public meetings to get them changed. And I'm just wondering if that's the intent. MR. LENBERGER: I understand the concern. I think there was something in the compo plan related to that, so I'll ask management to look that up. CHAIRMAN STRAIN: There was so much slid through the compo plan that we didn't question enough, I don't doubt it. MR. LENBERGER: I have to be consistent with the compo plan. CHAIRMAN STRAIN: Oh, believe me, I've been hearing that lately a lot, yes. That's the worrisome part, Steve. While you're looking at that, let's move to Page 223. COMMISSIONER SCHIFFER: Mark, just a question. CHAIRMAN STRAIN: Yes, sir, Mr. Schiffer. COMMISSIONER SCHIFFER: Steve, you reference a lot management. Who's management? MR. LENBERGER: I'm sorry, I didn't hear you. COMMISSIONER SCHIFFER: You reference management. Isn't that Bill and -- MR. LENBERGER: The management in our section are Barbara October 7,2008 Burgeson is in charge of the review section, Susan Mason is under her, and our department director is Bill. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: That explains my fears. Thank you. Page 223. Are there any questions on Page 223? (No response.) CHAIRMAN STRAIN: Did you -- I heard Joe talking. Did you finish up the discussion on the PUD document so you got an answer to my question on that or not? MR. LENBERGER: I have to see. Bill or Susan are looking at it now. CHAIRMAN STRAIN: Well, when it comes back for rewrite, would you consider that question as far as getting a response? MR. LORENZ: Mr. Chair, the specific question, because I was back and forth with different conversations. CHAIRMAN STRAIN: It's about adding a bald eagle management plan to the PUD. MR. LORENZ: Okay. CHAIRMAN STRAIN: Ifwe do that, when you put that language in here, was it understood that any change that happens for example to the benefit of the benefit of the eagle management plan, things that could be better or even things that could be worse, nothing can be changed if it's added to the ordinance without possibly a PUD amendment. I'm wondering if that was thought out. At the very last sentence on Page 222, Bill. MR. LORENZ: Okay. CHAIRMAN STRAIN: So -- Page 223, back at the top, native vegetation preservation. It's C.!, or C first I. And Steve, this reads, for sites that are currently clear of any native vegetation or in agricultural operation pursuant to the Right to Farm Act. Any native vegetation, that's kind of hard to say. I mean, farm ditches are going to be loaded with native vegetation. I'm not sure you Page 38 October 7, 2008 -- I think you need to qualify the statement, or in agricultural operation. Does that mean if you have a section of land, you've got 70 percent of it operating as agricultural, how does this paragraph then apply to a mix like that? Are you looking for a percentage? And then as far as agricultural operation, in that regard are you looking for row crops that are harvested yearly, you looking for citrus that's harvested yearly, you're looking for crops that are harvested on a longer period of time? So I'm not sure that that gets us as clear as we need to on that first part of it. MR. LENBERGER: I would have to speak to the county attorney's office regarding the length of time agricultural operation. Look at the code. This gets back to the native vegetation definition section we've been working on, and perhaps when that's ironed out, this should reference that -- CHAIRMAN STRAIN: Instead of all this language we just referenced in the section -- MR. LENBERGER: Right, it should reference that if that's the section to look at since we are going to address that. CHAIRMAN STRAIN: Well, I'm all for trying to tighten it up, that's fine if that -- okay. I guess then for the rest of this when we're talking about permits and time frames of permits, all that will be addressed when we get into that other section then. Okay. II, I don't have anything there. Anybody on the rest of the page? (No response.) CHAIRMAN STRAIN: Oh, III refers to the superimposed on the development plan. Are you talking about the aerial development plan for the location of the habitat or the development -- can you take an aerial and overlay a development plan on it? Is that what you were intending on III? MR. LENBERGER: II is the aerial, III is the site development Page 39 October 7, 2008 plan. And really, where it says superimpose on the development plan the location of all habitats, it should say all native habitats. CHAIRMAN STRAIN: Consistent with the Florida Department of Transportation. Now, what have they got to do with it? They're the ones that actually issue the FLUCCS codes? MR. LENBERGER: The state -- CHAIRMAN STRAIN: DOT? MR. LENBERGER: Yeah, the state and federal agencies all utilize the FDOT standards for classification. CHAIRMAN STRAIN: Okay. Under five. COMMISSIONER MURRAY: Wait. CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: You said should be native habitat. And I think I understood you on that. But anything that grows in the soil is native, but you don't mean it in that context, you mean it that's listed native habitat, right? As to differentiate between weeds that are in -- can it -- you know, location of all native habitats, anything that grows in the soil after a while is native to it except by our determination that it is not. So the only way we determine it is through listing of what those native habitats are, right? Is that where we're trying to go? MR. LENBERGER: We would have to defer to the native vegetation definition section we're working on for that and not really look at that here. Just let's address it where it actually defines it. COMMISSIONER MURRAY: Are we ready to move forward with this? CHAIRMAN STRAIN: Well, I think we're trying to -- there seems to be an insistence -- first of all, my own personal thought on this is that you don't need -- there's no requirement in the EIS thresholds shown in the CCME language in front of us to modify anything beyond the EIS language. Someone's made this into creating a whole new section of the Page 40 October 7, 2008 code that's five pages long. I'm not in agreement with it. But in order to move forward so that staff has some kind of indication how they could possibly correct things or come back, I'm still trying to plow through it. I don't, you know -- COMMISSIONER MURRAY: You're right to do that, but I will tell you what my frustration, my concern is, is that what we're doing is piecemealing correcting. And we're going to tend to legitimize the structure that exist here, because otherwise it's really a complete rewrite. You're referencing other things we're about to see or we may see at some point. I don't know how we can make an adequate judgment on it. I don't mean to be offensive, I apologize. I don't mean to be offensive. But I'm sure you're just as frustrated trying to portray this as we are trying to understand it all. CHAIRMAN STRAIN: Okay, Steve, on number five, the second line up from the bottom, it talks about the applicant shall show the proposed and existing development roads and areas for stormwater retention. You're limiting that to what they're doing on-site, not adjacent to the site; is that correct? Because this paragraph starts out talking about with -- that seems to want to indicate things off-site in corridors that it's connecting to. So I want to make sure you're not looking for someone to come up and know all the roads and areas for stormwater retention in the existing development or things that could go on in that area. But the proposed word, though, is what I'm trying to get at. That refers to what the applicant's proposing only so that it stays within his site? MR. LENBERGER: We can clarify it. It was -- in a general context, it would mean development orders that are approved such as PUD master plans, final development orders. It's meant to show development in relation to the preserves. Page 41 October 7, 2008 I understand your concern about how much you'd have to show on the plan. We'd have to take a look at that. CHAIRMAN STRAIN: If you could just define it, that's all I'm asking. COMMISSIONER SCHIFFER: Mark, a question? CHAIRMAN STRAIN: Go ahead Mr. Schiffer. Then Mr. Murray. COMMISSIONER SCHIFFER: And it's on that same section. Do we have a requirement someplace else that has electronic submission? In other words, are -- in the past and up till now and in the future, do people submit this stuff so we're dealing a data base of these? MR. LENBERGER: It's in the EIS section. I didn't take it out so it's somewhere in the section. I'd have to look for it. COMMISSIONER SCHIFFER: So there is the ability to get information off of neighboring sites and stuff with prior submissions, if there was one? MR. LENBERGER: I don't know the extent of what is scanned, if every -- I believe -- well, I know the final EIS is scanned. Whether all EIS's, previous submittals are scanned, that I don't know. COMMISSIONER SCHIFFER: Actually, what I was looking for is something where the actual working data was submitted, where somebody could use it on an adjoining site. But it's not, I guess. MR. LENBERGER: Oh, I see what you're saying. COMMISSIONER SCHIFFER: A scan's not that handy, but -- CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Yeah, on that five item there, here's the thing. You're talking about a site development plan as you've indicated, and they're pretty much complete. However, we're referencing here adjoining land and neighboring properties and all the other. Page 42 October 7, 2008 On the other hand, you've also said that you would like to have an 11 by 1 7 or larger document, that aerial or whatever that shows all the detail. Does this become a redundancy if you were to have that? Is this redundant to that? Or, you know, if you want to save them money making them go out and having a site development plan that they have to now adjoin to neighboring properties, I don't -- I understand your desires, I'm wondering though whether or not we have a redundancy here. Can you tell me the difference between those two? MR. LENBERGER: Well, the site improvements you're constructing are identified on the plan. But we needed some sort of conceptual plan showing how this all fits in the big picture. And how we addressed in here, I'd have to think about it some more. CHAIRMAN STRAIN: I just don't want to put an applicant in position where they have to go out and do extensive research to find out where all the proposed things might go on property that's is adjoining and neighboring to them as noted in this. And I think -- COMMISSIONER MURRAY: But they're actually asking them to do land planning in that context, really, if you think about it. Maybe that's not a bad thing. CHAIRMAN STRAIN: I think just look at the wording and I think you could clarify the wording. MR. LENBERGER: It's all part of land planning. CHAIRMAN STRAIN: Page 224, I have questions. Mr. Kolflat? COMMISSIONER KOLFLAT: Yes, Steve, could you look on Page 224 under item D for David. And 1.1. Do you have that? MR. LENBERGER: Yes, the multi-slip docking. COMMISSIONER KOLFLAT: Yes. For that first sentence there, for multi-slip docking facilities with ten slips or more, and for all marina facilities, how do you differentiate between all marina facilities and slips that constitute 10 slips. Page 43 October 7, 2008 MR. LENBERGER: That's what triggers the review for the Manatee Protection Plan under the Manatee Protection Plan. Those are the triggers that are already adopted in our plan. COMMISSIONER KOLFLAT: How do you define marina? By number of slips -- MR. LENBERGER: It's a defined -- it's bolded, so I'd have to look it up in the LDC. I don't know -- but it is a defined-- COMMISSIONER KOLFLAT: Is that by number of slips? MR. LENBERGER: I believe it's by the type of uses, activities that occur on it. It is a bolded, and since it is bolded, it is defined in the LDC. I'd have to look it up. I don't have a copy here, I do have one in the back I can get for you. COMMISSIONER KOLFLAT: Well, I'm wondering like, for example if you had three slips couldn't that also be called a marina? MR. LENBERGER: It has to do with uses, and this really is a zoning question. Perhaps Catherine could -- MS. FABACHER: Turn the pages faster? COMMISSIONER MURRAY: Joe knows. He has three . marInas. MR. SCHMITT: For the record, Joe Schmitt. A marina is defined as a commercial operation. It usually has a boat store, refueling or other operations that are deemed a part of the business. So not -- a mass of docks doesn't necessarily mean it's a marina. It may seem to you, but our definition is very clear, determines what -- a marina is a separate business entity that -- and what, how does the definition, Catherine. Boat store or other accompanying activities -- MS. FABACHER: All or any combination of the following, boat slips or dockage, dry boat storage, small boat hauling or launching facilities, marine fuels and lubricants, marine supplies, bait and fishing equipment, restaurant, boat and boat motor sales and rentals. Does not include dredge, barge or other work dockage service. MR. SCHMITT: So the mere fact that you might have 10 boat Page 44 October 7, 2008 slips does not constitute the definition of a marina. COMMISSIONER KOLFLAT: But a massive amount of boat slips might have an adverse impact on the manatee, which is what we're trying to protect with this plan. MR. SCHMITT: Absolutely. But then you go through the siting method in the Manatee Protection Plan. And Bill and certainly Steve can discuss that. But that's where you get into the number of docks, the shoreline, length of the shoreline, whether it's a preferred site, those type of activities that are clearly defined in the Manatee Protection Plan. COMMISSIONER KOLFLAT: Okay. Well, on the assumption that the wording then here is correct or can be corrected to adequately describe these points, would you also turn to Page 232, under item H, as in Harry, little Roman numeral I. And the first sentence of that paragraph is identical with the sentence we just talked about. And I don't understand the reason for redundancy or why we want to repeat that. MR. LENBERGER: First, on 224 that's from the general submittal, environmental submittal requirements. COMMISSIONER KOLFLA T: Yes. MR. LENBERGER: And on 232 that's the Environmental Impact Statement requirements. COMMISSIONER KOLFLA T: But the sentences are identical, the two sentences are identical. Why do we repeat that? MR. LENBERGER: They are -- you have to be in compliance with the Manatee Protection Plan. The EIS requires that you analyze that. We require that information on a site plan review. This is one of the items I thought would be best just to reference, as I mentioned earlier. Just reference that Manatee Protection requirements, what section it would apply to. COMMISSIONER KOLFLAT: Well I'm just trying to help our chairman eliminate some of those redundancies so we can reduce Page 45 October 7, 2008 those five pages to whatever pages he'd like. CHAIRMAN STRAIN: Zero. Thank you, Tor. Go ahead, Bill. MR. LORENZ: Well, along these lines, and this is where we might be able to structure it differently. I think somebody, Mr. Murray may have mentioned it before about looking at the bigger picture as supposed to working on each individual comment. Which we can do., But we may want to structure this completely different to where we will have kind of basic data that needs to be required for anything, and then in the EIS maybe more. And maybe that's a better structure where we don't have to be repetitive. And so we'll take a look at that. And I think that -- CHAIRMAN STRAIN: Ms. Caron? MR. LORENZ: -- it goes towards a number of commissioners' comments -- COMMISSIONER CARON: Yeah, I think Commissioner Schiffer had it right when he said that if you change the way you've got it organized, it will flow and you will get rid of redundancies that way, I think almost automatically -- MR. LORENZ: We'll work towards that. COMMISSIONER CARON: -- and that should-- CHAIRMAN STRAIN: Well, Bill, if you're going to have basically what sounds like, and I think what we've directed, is a complete rewrite of this section, are we wasting our time spending hours -- we're going to be good for good another hour to two just on this one section, or better leave it to you to come back with the rewrites of this section with all the other environmental rewrites at another time? MR. LORENZ: It may be that there -- if there is some major objections to some of the concepts here, it would be good to hear that in discussion. Otherwise, of course, talking -- wordsmithing one little section versus another, I think that would be wasting time. Page 46 October 7, 2008 But if there's some major issue points here that we'd want to have a discussion, that would be helpful for our rewrite. CHAIRMAN STRAIN: Okay, what I'll do, because I have a lot of comments on every page. Instead of asking you to respond to them, I will state my comment, and if it's something you're going to rewrite anyway, fine. If you're not we'll get it back and discuss it at that time. Because in the rewrite, it may have clarified the comment to a point I won't have it any longer. So for my part I'll move forward doing that. And the other members can proceed as they wish then, as we get to each page. And that will expedite the remainder of this section. Then we can hear the public's comments and you'll have as much as we can provide you with on this then. With that in mind then, on Page 224, third line on the top, it says, project design effects improves predevelopment. In prior locations of our code, we've used does not negatively impact. I'm not sure you need to be consistent. It's a suggestion. On number seven, the off-site native vegetation preservation retention demonstrate the -- that the criterion section has been met. If you have native vegetation -- off-site native vegetation preservation, how do you have it retained? I mean, isn't that kind of a contradiction? If it's off-site, it's not retained. It's off-site native preservation. So anyway, that's just a comment. As you go down in D.lI and D.S, you're talking about environmental contamination, but I would certainly think you want to qualify that by a licensed Florida geotechnical professional. And so I notice in all of your criteria you talk about some regulations involving contaminants. But I would suggest that we make sure the right people are judging those contaminants. Arsenic is a prime example. Arsenic levels very widely as a natural occurring element throughout the state. In some areas they actual increase Page 47 October 7, 2008 because of various things that have been done improperly. But there are also multiple levels. You can arsenic level for industrial property, commercial property or residential property, and each level of arsenic does not necessarily mean the property has to have anything done to it. So somehow all this factor has to factor in when you start to talking about contamination. And I used arsenic as an example. But it does apply to some of the other elements here that you're talking about. So if we're going to get into this kind of an issue, then I think we need to make sure we're specifying whether we're looking for residential standards, commercial standards, what kind of standards we're looking for, who's doing the testing, how -- what their licensing is. And I know there's geotechnical professionals in the state. I've used them many times. There's some good firms out there. And I just want to make sure that we get the right people doing the right testing. MR. LENBERGER: Licensed geotechnical -- CHAIRMAN STRAIN: Licensed Florida geotechnical professional. And maybe -- I don't know if Florida is necessary or not, but at least geotechnical professional. MR. LENBERGER: Thank you. CHAIRMAN STRAIN: In the number five on the bottom of 224, you talk about soil and groundwater sampling shall be required for sites that occupy farm fields, golf courses, land for junkyards. You mean former farm fields or preexisting farm fields or golf courses, landfill or junkyards, because if someone's coming in, you want to know -- it only would apply if they're coming in on raw property, you don't need a golf course to do the analysis on the raw property, only if it was another golf course before the new golf course came in, or something like that, right? MR. LENBERGER: Well, it could be a conversion. It could be Page 48 October 7, 2008 an existing golf course that's being converted-- CHAIRMAN STRAIN: Right, well then it would apply the same way . Yeah. They mean preexisting, though, you don't care if it's native, you only care if it's preexisting, one of those uses. I would think. Any other questions on 224? (No response.) CHAIRMAN STRAIN: 225? COMMISSIONER MURRAY: Going back to that. CHAIRMAN STRAIN: Go ahead, Mr. Murray. COMMISSIONER MURRAY: Just a thought on that issue and the issue of arsenic. You could have native soils that have a higher level than you would in a previously used ground. So would you -- do you want it for every possible opportunity or restricted to these? MR. LENBERGER: We originally had a reference to arsenic in here on the next page, it's not on your text, that said, include a background soil analysis for an undeveloped location hydrologically upgradient of the suspected contamination site. And then we had language says, especially when evaluating arsenic, since it is a naturally occurring soil constituent. We did have language to that effect in. We were asked to delete it by DSAC. COMMISSIONER MURRAY: So -- okay. So if undeveloped, you leave it alone, you don't go after it. Is that what I heard you to say? MR. LENBERGER: We need a background to see what it was naturally. And as far as the -- COMMISSIONER MURRAY: And if it's higher? Do you have limits, is what I'm trying to find out. You have thresholds, don't you? CHAIRMAN STRAIN: Yeah, there's -- but it depends on what the use of the property is going to be -- COMMISSIONER MURRAY: Well, I agree. And I understand that. If I'm going to have a home built on it or I'm going to have kids Page 49 October 7, 2008 around it, I certainly don't want to be in an arsenic field area. But, I mean, there are other applications. It might be a cement plant? Would that be something -- CHAIRMAN STRAIN: Right. Yeah, there's different levels for different uses, right. COMMISSIONER MURRAY: My concern is are we, by designation of these particulars, are there any others? The moment that you become specific, then aren't you required to have the full range of specifics? No? I mean, I guess they are representative, right? Occupy farm fields, golf courses, land fill or junkyards. Is that the only other property, that's the extent of property classifications that we have. Do I make myself clear? MR. LENBERGER: No, I understand what you're saying. These are areas where you likely could have contamination. We did have former in there originally but they could be existing and be converted. And the recommendation to take out former was actually the county attorney's office recommended we take the word former out. We did have it in there. So I would have to consult with him. CHAIRMAN STRAIN: On that same paragraph that Mr. Murray -- and my follow-up comment to Mr. Murray's question, that last sentence opens up a Pandora's box I think for Collier County, one that I'm not sure you really want to or that's appropriate. It says if this analysis has been done part of an environmental audit, then a report shall be submitted. First of all, those audits are highly confidential between a property owner and their professional. Second of all, they go into a lot more issues than just the points of interest that you have here. So if the county gets the entire audit, it then becomes public record, you're opening up an issue of -- that may be potentially Page 50 October 7,2008 problematic. If we're not legally addressing any other issues than what's in this paragraph, what do we want to see all that for? If they want to supply the environmental audit, then that's fine. And I think the word shall ought to be changed to may, and that's my concern. But if they want to have an independent report done by a professional just on the items that concern the county, they should have that option to do that as well. So that's the point I was trying to make on that paragraph. MR. LENBERGER: I would have to consult with the attorney's office and management on that. CHAIRMAN STRAIN: Item VI, I think Tim Hall or somebody mentioned to me that 3.07.00, and it's referenced a couple of times in this document, doesn't exist. I don't -- he's probably right, but you need to check it out to make sure that's the right reference. And VII, we again referred to the last part of it, will not be adversely affected. Again, whatever language we typically use, and that means does not negatively impact, as example, if we typically use that language we need to be consistent, because there is a lot of different intentions of the meaning. MR. LENBERGER: You're talking seven? CHAIRMAN STRAIN: Eight -- no, seven, I'm sorry, seven, the last three words -- MR. LENBERGER: Adversely affected. Is that what you're referring -- CHAIRMAN STRAIN: It says, will not be adversely affected. Was that the same as not being negatively impacted? I'm not sure, but whatever language we use, we ought to be consistent. Yes, sir. MR. LORENZ: My suggestion is that it should tie into the stormwater criteria and show how it's consistent with that section of the code, if and when it gets adopted. And I think that would be the better way of handling it. Page 51 October 7, 2008 CHAIRMAN STRAIN: That's fine. MR. LENBERGER: And this is one of the ones I was just going to comment on. We wanted to actually change that. It should be consistent -- we did change this on Page 231, five. It was reworded. If applicable, demonstrate that preserves conform to the requirements of Subsection 3.05 ofH.1.h, which is the stormwater section. So we did a reference there. CHAIRMAN STRAIN: 3.05.07.H.1.h? MR. LENBERGER: Yes. CHAIRMAN STRAIN: No. MR. LENBERGER: That should be the stormwater. That came at the recommendation ofDSAC. CHAIRMAN STRAIN: Okay, well, if you turn to Page 198. I know, you don't know what the heck page that is. Well, that's one of the other sections you gave us to have fun with. Let me see if I can find a reference. COMMISSIONER CARON: Well, it is here, if you look down at the bottom of our checklist here, stormwater in preserves is 3.05.07.H.l.h.ii. CHAIRMAN STRAIN: Oh, then we've -- okay. Because that's the section that references the stormwater in preserves section that's another section that becomes part of that section, okay. MR. LENBERGER: Right. CHAIRMAN STRAIN: With that, let's take a break for 15 minutes, be back at 2: 15, okay? (Recess. ) CHAIRMAN STRAIN: Welcome back, everyone. During our break we were trying to move a little faster through the first environmental rewrite today, with the intention that we'll kind of high point it and then staffs going to come back with a substantial rewrite anyway. So with that, I guess we left off at about 230, if I'm not mistaken. Page 52 October 7, 2008 No? Where did we leave off? MR. LENBERGER: 225, I believe. COMMISSIONER CARON: 225, yeah. CHAIRMAN STRAIN: Yeah, I was moving ahead, sorry. COMMISSIONER MURRAY: Wishful thinking. CHAIRMAN STRAIN: Yeah, wishful thinking. 225, and we start on number three on 225. Again, I think this one refers in your less exempted and it starts talking about building permits. Please consider Brad's comments. You may be getting into issues that are more strenuous than you need to when you start making environmental issues become relevant to building permits. You're going to have SDP's, you're going to have plats, you're going to have rezones. I'm not sure a building permit does you any good. MR. LENBERGER: I see. Okay. CHAIRMAN STRAIN: Page 226. Ms. Caron? COMMISSIONER CARON: Yes, I had a question on B. It says all sites with 20 or more acres of native vegetation on-site. Where did the 20 or more acres come from? What was the rationale for that? MR. LENBERGER: It came from management as a starting point. COMMISSIONER CARON: Okay. MR. LENBERGER: It's open to debate. COMMISSIONER CARON: What about PUD's that might be 10 acres? I mean, that's the qualification to be a PUD is 10 acres, so wouldn't you want to start there, maybe? MR. LENBERGER: I guess it would -- it really depends on the site and not necessarily the type of development order being issued on it. So we're more looking at the site. MR. LORENZ: Again, this was -- this is-- COMMISSIONER CARON: This is 20 or more acres of native Page 53 October 7, 2008 vegetation, not 20 or more acres of the site. Okay. MR. LENBERGER: Right, when you meant site, I was referring to the type -- some sort of analysis of the site, not just because it's a blank acreage. Based it on native vegetation, because that's what we're interested in. One of the issues. COMMISSIONER CARON: Okay, that really changes, though, what was originally in the GMP that got crossed out. MR. LENBERGER: Yes. CHAIRMAN STRAIN: Was the purpose of crossing it out of the GMP to move it into the LDC or to physically say that that's not what we want? Maybe that's a more appropriate question. MR. LORENZ: Yes, the purpose of crossing it out of the GMP was this was too specific. We didn't feel that these types of sites would qualify to have to go to the EIS. Our intent is to try to minimize the process in going through an EIS and tailor it to sites that are very important to go through the public hearing process, figuring the EIS is going to go through the EAC. So we wanted to remove that specificity in the GMP and give us the flexibility in the LDC to craft regulations that would make more sense as we go through this process here. COMMISSIONER CARON: Remember the other day when we were talking about that site on Este? MR. LORENZ: Yes. COMMISSIONER CARON: Did that site have less than 20 acres of native vegetation? MR. LORENZ: I don't remember the numbers, I'm sorry. COMMISSIONER CARON: I don't either. I'm just trying to figure out where the 20 came in, if that 20 is actually a reasonable number or not. MR. LORENZ: Well, as Steve said, staff worked through just the numbers and thought that that was a reasonable number to apply to Page 54 October 7, 2008 the EIS requirement. COMMISSIONER CARON: Okay. CHAIRMAN STRAIN: Okay. On that same page, if we go to C.4, it says location and dimensions of preserves were not previously approved or are not consistent with the current GMP. Now, this is for the applicability. There isn't anything in the county that's going to be consistent with the current GMP CCME criteria. So basically any site coming in of any size will fall under C.4, would it not, or how would you see that? MR. LENBERGER: I would have to disagree with that. There are lots of projects which are consistent. They also may be vested with preserves already established, so they would not have to do an EIS. CHAIRMAN STRAIN: Well, how about that place down off County Barn Road I used for example the other day, starts with a V, not Vo-Tech but -- oh, I forgot the name of it. They had bought a piece of property, had it permitted, built a facilities on it and then they tried to buy a piece to the north next to them and expand there, but then the argument was that they now had to practically preserve the entire piece to the north they bought to expand on because they now came under the new criteria of the GMP which was different than when they were previously permitted on their smaller parcel. How would that fit into a situation like this? MR. LENBERGER: Well, that would have to be evaluated under the criteria for the native vegetation definition, which we have to analyze. CHAIRMAN STRAIN: I can't remember the name of it, unfortunately, so -- Youth Haven. That's what it was. It's not a V, that's a Y. Youth Haven. How does that Youth Haven site fall into a situation like we have on C.4? MR. LORENZ: I think Steve alluded to the native vegetation retention definition -- native vegetation definition. And what we really Page 55 October 7, 2008 need to do is we really need to define that and define what conditions exist for a particular site that would vest the vegetation currently on-site. And I think that begins to tie -- those decisions begin to tie into this particular provision. In other words, if there is a certain vesting of a particular project of its native vegetation retention requirements that may not be consistent with today's GMP, it's simply vested. We will identify that. We would not be requiring an EIS for that particular type of project. So I think it's tied into making those decisions. CHAIRMAN STRAIN: You'll come back with it, then, I'm assuming, when the rest of this gets cleaned up. Page 227, anybody have any questions on Page 227? (No response.) CHAIRMAN STRAIN: 228? No changes. 229, no changes there. 230? (No response.) CHAIRMAN STRAIN: Bill, on the -- or Steve, on the top of 230, and we would be looking at since you don't have our same pages, E.4. MR. LENBERGER: Yes, I see it. CHAIRMAN STRAIN: The last sentence says, for sites outside the RMFU district where higher quality wetlands are being retained on-site, provide justification based on UMAM. I noticed that was dropped from paragraphs five and six. Why? MR. LENBERGER: Well, it should be specified somewhere below. It may have been restructured, but I have to look at it. It looks like it's been restructured. But it looks like it's included in here and elaborated on as far as the evaluation, the .65 WRAP,.75 UMAM. So it is here, it's just been restructured. CHAIRMAN STRAIN: Well, it's referring to only higher quality wetlands for that reference, but -- okay, as long as it's in there when Page 56 October 7, 2008 you rewrite, if it's there, then I just wanted to make sure -- MR. LENBERGER: It's under the wetlands section, so it's supposed to evaluate the wetlands. CHAIRMAN STRAIN: Anything else on 230? (No response.) CHAIRMAN STRAIN: 231? (No response.) CHAIRMAN STRAIN: Up on the top of 231 you have an underlined section that continues the sentence that was started. The first part of the sentence says, the analysis shall be performed using methodologies approved by federal and state water quality agencies. Then you added the demonstration of other nutrients and biochemical oxygen demand, et cetera. Is that needed to be added if you're already going to do the analysis pursuant to federal and state methodologies? MR. LENBERGER: It's tying in the compo plan requirement. CHAIRMAN STRAIN: Well, I understand. But the analysis that is required by federal and state, is that already inclusive of that same language? MR. LORENZ: While Steve's putting that up, let me -- I think the analysis is the methodology. We're not specifying any different methodology than what the federal and state agencies would accept. But the Growth Management Plan is specific as to what parameters need to be looked at, and that's why we've added the list of parameters. CHAIRMAN STRAIN: Okay. Okay, anything else on 231? (No response.) CHAIRMAN STRAIN: 232? MR. LORENZ: Excuse me. CHAIRMAN STRAIN: Yes, sir. MR. LORENZ: I want to say that we've got the language in here listed or protected species. I think we need to scrub protected. Page 57 October 7, 2008 CHAIRMAN STRAIN: Yes, Steve acknowledged in the beginning he was going to do that. On 232, H.l1. You might want to consider the words applicants may include the results of any environmental assessment. Again, I'm not sure we can demand that they do, but -- and four, H.4, there's some reference to farm fields and golf courses, whatever language is preexisting. I think you might want to clarify that. Right after that language, continues, or for which there is a reasonable basis for believing there has been a previous contamination on the site. Who determines whether or not there's a reasonable basis? I had one time heard staff tell us every farm field qualifies as reasonable basis. I don't think that's a good reason. So I mean, I wonder how that's determined then. MR. LORENZ: There's -- I mean, staff will look at it and make that determination as a requirement, at least ask the applicant. Typically what this is applied to, at least from some of my understanding of examples, would be for instance if you have a -- an area where you've got a pesticide mixing tank where you had pesticides being mixed, or a former cattle dipping type of pond. Some area that would have concentrated chemicals associated with it, that would be an area that would have a reasonable basis. CHAIRMAN STRAIN: Is there a way that we could qualify that statement? I agree with you, by the way, in the fact that cattle dipping issues in the outlying rural areas are -- in fact, we're looking at Pepper Ranch, I understand that has some cattle dipping areas in it. So I think they're important to look at those more closely. MR. LORENZ: We can certainly try to provide some criteria for how we would define reasonable. CHAIRMAN STRAIN: Yes, sir, Mr. Murray? COMMISSIONER MURRAY: Just for my edification, if nothing else, Bill, are the areas where you go into groves where they Page 58 October 7, 2008 have the chemicals there to, you know, to avoid bringing in disease to the groves, does that also qualify? If that land were going to be used, converted? MR. LORENZ: That would typically be covered under farm fields and if there's an application of pesticides for -- wherever you have an application of pesticides, that would be something that you would be concerned about, a long-term-- COMMISSIONER MURRAY: I guess that's considered pesticides. Okay, thank you. MR. LORENZ: Right. And we would consider that as agricultural farm -- it says farm fields here, but we would certainly think that would be reasonable. COMMISSIONER MURRAY: Okay, I didn't know groves were considered -- I guess farm fields, yes. CHAIRMAN STRAIN: Page 233, anybody? (No response.) CHAIRMAN STRAIN: Page 234? (No response.) CHAIRMAN STRAIN: On B on the top it talks about -- now this is under the section for exemptions. And by the way, you have exemptions on eight, exemptions from an EIS. Then on nine you have exemptions from an EIS and other environmental. Just out of curiosity, why the difference? One takes you out of everything and one only takes you out of the EIS; was that the intent? MR. LENBERGER: That's correct. CHAIRMAN STRAIN: Okay. Upo on B where it talks about agricultural operations on Page 234, they fall within the scope of the Florida Statutes. The last sentence, I was trying to understand what you were trying to do here. This does not obviate the applicant from providing all other environmental data required for 10.02.A.2 where applicable. Well, Page 59 October 7, 2008 that's everything than an EIS has, or close to it. So what is it that we're allowing the ago operations to be exempted from? Well, just look at that as a concern. I mean, again, I keep forgetting we're just going to give you our bullets right now and you're going to come back with a rewrite anyway. MR. LENBERGER: Two is environmental submittal requirements. What it's saying here is if there's some other environmental submittal requirements, general environmental submittal requirements, you would need to show those. CHAIRMAN STRAIN: Well, would they be required to show those to the other agencies if they're going to do ago operations? MR. LENBERGER: If they're going to start an ago operation or convert? CHAIRMAN STRAIN: Well, whatever B would apply to. MR. LENBERGER: B is an exemption from an EIS. That means you have an existing ago operation, and falls under the scope of the Right to Farm Act. And you're going to convert it. Then you would not be required to submit an EIS, but there are other things in the environmental submittal requirements such as contamination for old farm fields. We just talked about mixing areas. So that's something that would apply from 10.02.02.A.2. So it's just to capture that if there's anything that you need to submit, that's what it would be. That would be one example. MR. LORENZ: Restructuring I think may help. CHAIRMAN STRAIN: Yeah, it sure will. Under C, where it says nonsensitive areas. Now, you struck parts of this section, and you included new language. When I was looking at it, I couldn't understand why you would want to strike the sections you did. And that's all from C forward. I just don't understand why all of Section C, including the Page 60 October 7, 2008 beginning narrative, because it was so simple, nonsensitive areas, C. Then you went into one, two, three, four, here they are. Well, now you've struck most of that. You have a longer dissertation to begin C into what you're trying to say, which now isn't as clear as it was before. And then I'm not sure that two is really the only -- it's too limiting. MR. LENBERGER: Well, it's also lIon the next page, previously developed areas. And that captures already altered areas on I -- CHAIRMAN STRAIN: Yeah, but-- MR. LENBERGER: -- so it's shortening it in capturing already altered sites. CHAIRMAN STRAIN: But it's limiting it to 1,000 square feet. MR. LENBERGER: No, that's -- no, it's not limiting it. It's previously developed areas. And it just has a de mimimis of 1,000 square feet. If you have 1,000 square feet of vegetation, you still qualify under the exemption. It's just some sort of de minimis language to say okay, there's not absolutely nothing, there's one little patch there, 1,000 square feet. It's just a de minimis amount to say okay, we're going to ignore that. CHAIRMAN STRAIN: Well, Steve, I don't want to know -- if you're going to rewrite all this, if we should take the time now to go into this. But look at C.I, you crossed out the subject property -- this is for an exemption. Nonsensitive areas. And you more or less defined them by saying I, the subject property has already been altered through past usage prior to the adoption of the code in such manner that the proposed use will not further degrade the environmental quality of the site or the surrounding areas which may be affected by the proposed use. MR. LENBERGER: And that's captured under two. CHAIRMAN STRAIN: Okay, how is that captured under two? MR. LENBERGER: The use of development will occur on Page 61 October 7, 2008 previously developed or disturbed sites. They both have to deal with disturbed sites. They're already altered, they've already been cleared. It's just a different way of wording it. It's trying to reduce some of the language here, make it simpler -- CHAIRMAN STRAIN: I'm all for that. I'm just trying to make sure it does that, because if you take one, two, three, four large paragraphs, convert them all back to one sentence, that's great. Just continue to do that and we'll have a better code. MR. LENBERGER: That's what we tried to do here. . CHAIRMAN STRAIN: I'm just a little -- based on the way this document -- all the environmentals have been written, I'm suspicious that it's not being done for the reason that you may think it is, or that we're being told because that's the way you think. But I'm not sure where it may have came from. Okay, I'll certainly look at that one closely in the new one that you come out with. Why is E being removed? MR. LENBERGER: E on the next page? Okay. CHAIRMAN STRAIN: Yeah, 235. And why is F being reviewed ( sic) and why -- and G. So I know -- MR. LENBERGER: Well, if -- we don't regulate the incorporated areas. . CHAIRMAN STRAIN: I agree. But that's -- so it shouldn't have been here in the first place? MR. LENBERGER: Right. And then F is included in the last -- number nine. CHAIRMAN STRAIN: So it's exempt from-- MR. LENBERGER: 9.B. It's exempt, yeah. CHAIRMAN STRAIN: What about G? MR. LENBERGER: G? That's in the next one, too, A on 236. CHAIRMAN STRAIN: Well, no, because G says single-family Page 62 October 7, 2008 lots, and A says single-family duplex uses. Is there a significant difference on why the word lots wasn't retained? MR. LENBERGER: We look at single-family and duplex as a single- family development. CHAIRMAN STRAIN: Right. MR. LENBERGER: So we look at them the same. CHAIRMAN STRAIN: Right. MR. LENBERGER: It says, and single-family lots in accordance with 30.04.01. I'd have to look at 3.04.01. But it's basically exempting the single-family residences. CHAIRMAN STRAIN: Right. And I wouldn't -- do you think someone would read -- see, when it says lots, it to me means the four corners of the lot. When it says uses, I was worried that someone could say that the footprint of the house that's the actual use is exempt, but the lot and the remaining portion is not. MR. LENBERGER: I see what you're saying. CHAIRMAN STRAIN: That's the only reason I -- and Steve, I know you may not be the one that would twist it that way, but it could happen, and I'm -- so I thought we certainly -- MR. LENBERGER: We will take a look at it. CHAIRMAN STRAIN: Okay. Under E, you're talking about "legal nonconforming use. Why did you pick 1974? Because our code makes legal nonconforming uses all the time. Every time we pass a new code, anything prior practically was a nonconforming use. MR. LENBERGER: This has to deal with the area of critical state concern, which was created in 1974. CHAIRMAN STRAIN: Has it been changed since then or not? MR. LENBERGER: It's the same. CHAIRMAN STRAIN: Okay. COMMISSIONER SCHIFFER: I have a question. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: And there's nothing more Page 63 October 7, 2008 comforting when you're trying to get an understanding of a code to have a line like, unless otherwise required by code. Which is -- so can't you tell us where that -- I mean, you can't do that though, that's a dirty trick. That's in 9.A. MR. LENBERGER: You're referring to -- COMMISSIONER SCHIFFER: 9.A. MR. LENBERGER: There are requirements for retaining native vegetation and the amount of alteration you can have. For example, in the rural fringe mixed use district, they- pertain to single-family as well as other uses. COMMISSIONER SCHIFFER: If the use of the code has to beware of that, can't you just list, unless required by, and list those other places? Other than that, it just -- you totally leave somebody exposed. I mean -- MR. LENBERGER: That could be quite -- COMMISSIONER MURRAY: Voluminous. MR. LENBERGER: If you go to Page 221, and go to two at the end of the paragraph, the struck-out language, we initially had it there, unless otherwise required -- no, it's not in your version, I'm sorry. CHAIRMAN STRAIN: No, I was going to say it sure isn't. MR. LENBERGER: I'm sorry, I have DSAC's comments here so you have to excuse me. I'm trying to work through this, okay. But anyway, it could be difficult to try to capture everything. We could miss something. COMMISSIONER SCHIFFER: Well, so could the person who's reading it. MR. LENBERGER: Yeah, but there's not -- they're exceptions, they're not common things. But the rural fringe mixed use district is one that stands out. It definitely has preservation requirements, not as a preserve, but as retained vegetation, which you could alter on-site. So we have to capture that here. But finding all those exemptions in the code, I don't know, we very well could miss Page 64 October 7, 2008 something. COMMISSIONER SCHIFFER: And so could the person using the code, you know, that's the problem. And first of all, when you refer to the code, somewhere did you define the code to mean the Land Development Code? Is that the code you're referring to? MR. LENBERGER: Yes, it is. And I would -- that would be -- COMMISSIONER SCHIFFER: Normally in the beginning of a -- so somewhere in the beginning of it, it states that whenever it's referenced the code, it references the Land Development Code. MR. LENBERGER: I would have to defer to Catherine on that. She's better on restructuring -- the structuring of the code. COMMISSIONER SCHIFFER: Steve, how many locations do you think you would find when you say that, it is a dozen? Is it in one area, can you help the poor guy out? MR. LENBERGER: I would find it very difficult to try to pinpoint everything. And we would probably miss something. But they would be the exceptions, not the rule. CHAIRMAN STRAIN: But, you know what Brad's getting at is what we started talking about last week. This code is what this board, the BCC and members of the public are supposed to be able to read and understand. And I understand what happened here, Steve. But if you don't know this, this example -- let me give you an example. Golden Gate Estates just had a tremendous error in the measurement of setbacks along the rear property lines. Staff didn't know that Estates section had a particular reference to a rear accessory use setback of75 feet. No less, period, that's it, 75 feet. Instead, a staff member pulled up the accessory standards table and said oh, it's only 10 feet. So now we have a bunch of buildings that are nonconforming uses all over the Estates at 10 feet or whatever they ended up being. But they certainly didn't meet the 75-foot that's Page 65 October 7, 2008 right in the code. Had the reference been there, like it is as we now changed it, at least someone would have been highlighted to say, you know this is the code except here. And if we have to write a code with those kind of exceptions in it, I think they need to be shown. That's critical for the community to understand what are exceptions. So if you can't list them, then don't put it in there. Think of some other way to do it. MR. LENBERGER: We can't just exempt the rural fringe, for example. CHAIRMAN STRAIN: No, you can say single-family and duplex uses are exempt from certain -- specify what they're exempt from if you can't -- and then maybe if you want to know more than that you go to other parts of the code. But I don't think the reference that is here is the correct way to go. And it was good that Brad pointed it out. It's a gotcha. COMMISSIONER SCHIFFER: And let me ask it the other way. If you do find one of those things, is it saying that this is exempt from the EIS? In other words, when you do find -- MR. LENBERGER: Single-family would not have to do an EIS unless they had an ST overlay, for example. They would be another example, you have an ST overlay, you're on Key Waden Island, you're building a home, you would have to do an Environmental Impact Statement. So there's two examples. COMMISSIONER SCHIFFER: Let me ask you this, staying on that. So in the S T it states that a single-family home has to have an EIS? That would even be' a dirtier trick if you hide -- MR. LENBERGER: It does not exempt them in the ST section. COMMISSIONER SCHIFFER: Okay, but is it clear reading the ST section that a single-family home requires an EIS? MR. LENBERGER: From what I recall, yes, it's pretty clear. Page 66 October 7, 2008 CHAIRMAN STRAIN: Well, look at D above, doesn't that kind of get into it? A conventional rezone with no site plan or proposed development plan. This exception does not apply to lands that include any of the zoning. That's for a rezone. MR. LENBERGER: Which section are you on? CHAIRMAN STRAIN: Page 235, D. MR. LENBERGER: Okay, you're on the previous page now, okay. CHAIRMAN STRAIN: It doesn't hit it right. COMMISSIONER SCHIFFER: But see, here's the thing. If somebody is trying to know where an EIS is required, they're in this section. And that's really unfair, because even in your conversation you can't be sure you're listing everything yourself, so how are they supposed to not make a mistake? And that's the problem. Mark gave an excellent example. MR. LENBERGER: I'm not sure how to fix it. I would have to rely on management on that. COMMISSIONER SCHIFFER: I think find out how many locations there are. If there's 5,000, it's different than if there's six. MR. LORENZ: I think -- sorry. CHAIRMAN STRAIN: Go ahead, Bill. And then Mr. Murray's got a question too. MR. LORENZ: I think we'll try to work that through, Steve, we'll try to find those exceptions. And I think again, the restructuring will help, because there is a -- the note earlier in the EIS section, this is listed as EIS and environmental data. So I think the restructuring will help and then we'll work towards making sure that we cover all the exceptions that we're aware of in the code. COMMISSIONER SCHIFFER: Thank you. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: I guess just adding to that, the Page 67 October 7,2008 question that came to my mind was if you're referring to so many potential that you'd have to list, wouldn't that also be a problem for the people who are in your organization who have to know the exceptions? Couldn't they miss them as well? So it's to your advantage to do something different, yeah. CHAIRMAN STRAIN: Okay. Ms. Caron? COMMISSIONER CARON: Yeah, you may just in the end have to chart it like we do for so many other things. Put a chart in there, these are the -- CHAIRMAN STRAIN: And then the last page is 236. Does anybody have anything on Page 236? (No response.) CHAIRMAN STRAIN: Okay. Well, we are going to have public speakers. I just want to comment to staff, you're going to hear more from the public undoubtedly. This whole environmental process this time, and we've still got more to go, has been probably the worst I've experienced in the number of years I've been on the planning commission. You're going back for rewrites. I don't know what it's going to take, but if you rush with the rewrites and you bring them back, they're not plain and simple to a manner that people can understand them, and they don't do what this board had always thought it was supposed to do, or for that matter the BCC, and they go off in tangents like we some of this, we're going to be back into rewrites again and again and again. Because honestly, I don't think the Board of County Commissioners would appreciate it if we just shoved it under the rug and passed it on to them to discuss. We need to beat it up here and make it right for the public of Collier County. And to do that, it's going to have to keep coming back and back. So I think you all need to make a decision on how and when you want to bring it back. Even if you want to defer it to another cycle, I don't Page 68 October 7,2008 care what you do, but it needs to be done right. So I urge you to consider that. And I know there are public speakers. And so guys, there's no girls amongst you so I can't pick who goes first, but Bruce jumped up, so -- MR. ANDERSON: It's alphabetical. CHAIRMAN STRAIN: Oh, Anderson, okay. COMMISSIONER CARON: I thought it was beauty before age or something like that. CHAIRMAN STRAIN: You're too nice to him. MR. ANDERSON: Good afternoon, Mr. Chairman, Commissioners. Bruce Anderson, from the Roetzel and Andress law firm, on behalf of the Bonita Bay Group. I sat back and listed to all your very good comments. You've taken most of the wind out of my sails. They were all comments, concerns that I had. I want to the address myself to two specific things. One is on Page 226. And it's paragraph Roman numeral IV, C.lV, where we talk about things that are subject to the EIS requirement. And they've proposed this new language, location and shape were not approved or are not consistent. I can tell you from firsthand experience that that interpretation, that is an interpretation that's already being applied under the existing language. I have a client who was a victim of it. I would ask you to leave that language as it is, as it reads today and not add that that's proposed. Because the effect of it is you get struck in a regulatory resolving door. Every time you think you've complied and you're about to get your permit issued, then the regulations change again and you get sucked back in. And it's a never ending struggle. My last comment is on Page 234. You raised -- it's about the use or development will occur within a previously developed or disturbed Page 69 October 7, 2008 area. And Steve eXplained what it was they intended. And since we're into simplifying things, I'd just suggest that we place the word or between those two sentences. CHAIRMAN STRAIN: Where exactly are you at, sir? MR. ANDERSON: I'm sorry, Page 234, Roman numeral II. CHAIRMAN STRAIN: Well, we don't have a Page 234 within it. COMMISSIONER CARON: It's on 235. CHAIRMAN STRAIN: Oh, it's on Page 235, so you've got the wrong set -- okay. MR. ANDERSON: See what I tell you about things changing. CHAIRMAN STRAIN: I agree. Where were you suggesting changing the word or? MR. ANDERSON: Between the two sentences. CHAIRMAN STRAIN: The use or development will occur within previously developed or disturbed areas or there shall be no impact to listed species or more than 1,000 square feet; is that what you're suggesting? MR. ANDERSON: Yes, sir. CHAIRMAN STRAIN: I'll just see how that fits with the new language, but -- MR. ANDERSON: Thank you. That's all I have to-- CHAIRMAN STRAIN: Your first comment, by the way, expresses exactly the concern I was trying to when I had talked about that one. Because I don't know anything that can be consistent with the current GMP, because we change it so much. So it's real concerning when we fall back on stuff like that. MR. ANDERSON: In years past property owners were required as part of the PUD process to identify the preserve areas. They sold property that may have been partially developed based on what was approved in the PUD as a preserve area. That ought to be respected and adhered to, and not, you know, getting back door change like Page 70 October 7, 2008 we've seen happen too many times. CHAIRMAN STRAIN: Pay your dues once, twice, three, four, on and on. Thank you, sir. MR. ANDERSON: Thank you. COMMISSIONER CARON: I have a question, though, on that. CHAIRMAN STRAIN: Go ahead. COMMISSIONER CARON: That may be being taken care of in some of these other amendments, Bruce. MR. ANDERSON: Which one are you-- COMMISSIONER CARON: I can't give you a page number unless you have the document that they combined everything to. MR. ANDERSON: No, I don't have that with me. COMMISSIONER CARON: Okay. If you do, look at the bottom of Page 9 under redevelopment and expanded sites. And see if under A it solves your problem. And would you just let me know if I'm reading something correctly or -- CHAIRMAN STRAIN: You should make the assumption you're reading it correctly and he may not be. So let her know if she -- COMMISSIONER CARON: Well, I don't know-- CHAIRMAN STRAIN: Reverse that-- COMMISSIONER CARON: -- if it applies to this or not-- MR. ANDERSON: This is respect to which of the two that I just spoke about? COMMISSIONER CARON: The first one. MR. ANDERSON: Okay, okay. I will. Thank you very much. COMMISSIONER CARON: I'm not sure if that's what it intends to do, protect what you're talking about or not. I think it does. I had a question when it comes back to us to ask, so -- MR. ANDERSON: Okay. Thank you very much. CHAIRMAN STRAIN: Okay, next speaker. COMMISSIONER CARON: I'm sorry, Bill-- CHAIRMAN STRAIN: Oh, Bill? Page 71 October 7,2008 MR. LORENZ: Yes, I think to that point, I think we're going to have to work with -- that's what I was eluding to before about working through what the preserves, what the native vegetation retention requirements will be as we have different approvals in time. And we need to define that, and actually probably map that out so that we can make that determination. Because I know that working with Doug Lewis here on the Youth Haven example, that's the example of where staff is getting tripped up on this principal of what can be nonconforming. And I think the easiest way to solve that is to identify very specific circumstances and define the circumstance of a particular PUD with a master plan approved on such a such a date would be vested -- maybe I threw that term around too much, but would be accepted as redevelopment occurs. And we should be able to identify all those specific requirements. And I think that's going to be really helpful. And that's where I -- I don't think the language that we currently have now gets us to that point. CHAIRMAN STRAIN: Okay. Thank you, Bill. And Doug, before you go too far, last week, as you reminded me, we cut you off because at 3:00 we stopped and tried to get some things moved out of here. So you wanted to address those issues for the record, you certainly are welcome to do it when you finish on the issue in front of us today, or if you haven't got anything on this one then you can go right into that. The second thing I wanted to mention to you, at 8:30 in the morning next Thursday, the first thing up is going to be the noise ordinance. So I know you had a lot of involvement with that, and I would want to make sure that your input is received at that meeting. So that's what time it will be and that'll be the first thing up next Thursday. Page 72 October 7, 2008 MR. LEWIS: Thank you, Commissioner. We've been working with your staff on the noise ordinance and appreciate all the input. I know it's a difficult challenge, so appreciate the effort. Good afternoon, members of the planning commission. My name is Doug Lewis for the record, and I'm an attorney for the law firm of Roetzel and Andress. And I'm also a registered lobbyist and I'm here today on behalf of Youth Haven. Youth Haven is an organization that has been providing continuous needs and assistance to abused children and families at risk here in Collier County since 1992. And I will focus my comments today on proposed changes to Section2.05.07.A and B. I appreciate the opportunity to speak. I've been here on several occasions. We just didn't get a chance to get to this item in the very last hearing, we ran out of time. So I appreciate the time today -- CHAIRMAN STRAIN: That's the one we finished -- we sent back for rewrite last week and it's not this one today. So basically he's going to comment on what we already sent back. But your comments for the record hopefully will have an impact that will help your issue. MR. LEWIS: Appreciate it. Hopefully it will give you some background and -- COMMISSIONER KOLFLAT: Mr. Chairman, can we get a page reference on that? MR. LEWIS: Sure. Page 165 is the very first page. Based on the August 22nd, '08 edition. I don't know if there's another edition or a later edition. But Page 165 -- CHAIRMAN STRAIN: That's the latest edition. That's the one we worked with. MR. LEWIS: Okay, fair enough. CHAIRMAN STRAIN: So we can follow along. MR. LEWIS: First of all, my comments hopefully today will be viewed in context with our client's proposed expansion of its existing Page 73 October 7, 2008 care facility and its site development plan submittal. And hopefully this will allow the planning commission to provide a little perspective on how the proposed changes to 3.05.07.A and B impact a project that's in the pipeline. Hopefully it's illustrative. I know it certainly has been for staff and myself. Our client has experienced significant difficulty and they've also incurred very substantial legal expenses in addressing staffs application in our particular petition of Section 3.05.07.A and B. By way of background I've put on the screen here a 1975 aerial photograph of the Youth Haven site, and it shows that as of 1975, that aerial, that 3.1 acres of land -- and again, this exhibit was prepared by Davidson Engineering -- but the 3.1 acres of this site located within a 16.8-acre parcel that's part of the site plan, that that 3 . I-acre site had been cleared as of that date. And I think it's important by way of history to see how this site has been developed and cleared. Based on that November 1975 aerial photograph, the very first phase of this development involved three buildings. And as you can see from the aerial photograph, the site contained at that time very, very sparse native vegetation. If you look at the aerial, it's very, very sparsely populated in terms of native vegetation. I think that's very important because in this discussion we seem to be blurring the lines between a requirement that imposes a preservation requirement on native vegetation, and a blanket requirement on acreage. And I can tell you in this instance, we were viewed as acreage. You have a 24-acre PUD, we're going to apply a 15 percent preserve requirement to the acreage, irrespective of what's going on. And I think it's helpful to look at this picture back in 1975, and you can see if we're trying to in effect preserve -- establish a preservation requirement of existing vegetation, look at how sparsely vegetated it was back in '75. Page 74 October 7, 2008 There's a 1985 aerial, and in that 1985 aerial, a total of9.1 acres of the current 16.1-acre site had been cleared. And you can see the -- kind of the outline there in red, those boxes or buildings that were constructed. But you can see that large area. Again, you can tell by the aerial that this is a very sparsely vegetated site. And if you think about 15 percent of 24 acres, you're talking a little over three acres. If it's 15 percent of the actual existing vegetation, whether you look at it currently or '85 or '75, you come up with very different numbers. Youth Haven, per the Youth Haven PUD that was in effect at the time the site was originally developed, all of this before 1985, that original PUD did not contain any native vegetation requirement whatsoever. In fact, it wasn't even part of our GMP, our Growth Management Plan at the time. Very old PUD. And by its terms, the PUD did not specifically enumerate a percentage of preservation vegetation requirement. Just didn't exist. On February 28th of 1989 and pursuant to ordinance 89-12, 9.7 acres of land were added to the Youth Haven PUD. So they enlarged the PUD, they made it bigger in 1989. And the PUD was amended and restated back in 1989. N ow that amended and restated PUD did not contain, and does not contain, and that's the current PUD as of today that we're operating under, does not contain a percentage of native vegetation requirement. So you have an '89 PUD that was approved by the county, didn't contain a preservation requirement. You had existing phased development, of which 9.1 acres had been cleared and developed under approved site plans by the county. 9.1 of those acres had been developed and cleared. No preserve requirement at all. It's a little helpful to see the background as we look at how these proposed changes will impact development. Pursuant to Policy 6.1.1, subsection eight, and that's in the coastal -- the Conservation Coastal Management of the Growth Page 75 October 7, 2008 Management Plan -- and I'll put that up on the visualizer -- you can see that the Growth Management Plan establishes a preservation requirement, in this instance it's 15 percent because it's commercial and the size of our development is over five acres. And then it -- after it establishes the preserve requirement, it has certain policy statements that apply to this preserve requirement that they're establishing. Again, it's important to bear note that I think the preserve requirement is, again, a native preserve requirement, not an acreage requirement. You're looking to preserve 15 percent of what, is it 15 percent of 24 acres, as the county staff originally had indicated, or is it 15 percent of the existing vegetation. I think that's very, very important. But there are certain exemptions, and the eighth -- if you look under 6.1.1 (8), and I'll put that up on the screen, it very clearly reads that parcels that were cleared, legally cleared of native vegetation prior to January of 1989 shall be exempt from this requirement. Now, we've had some discussion today about, you know, the importance of having very clear language, minimizing ambiguities, making sure that things are for clear so that businesses and projects and members of the community have certainty when they look at the code. If you were to ask me how I could construct language that would be clearer than that exemption, I don't know how I could do that. I think it's very, very clear language. It says it's exempt. Now, certainly there's discussion and room for discussion as to whether or not acreage was legally cleared. But I think that the statement is very clear, that if it was legally cleared before January, 1989 it is exempt from the preservation requirement. Now it's either exempt or it's not exempt. It's like being pregnant, you either are or you aren't. I think the language is very clear and I think it's helpful to see that because it will tie in again to Page 76 October 7,2008 some of the changes that we're looking at by way of background. That same language has been in and was in the Land Development Code under Section 3.05.05.07.B.2.A, and you'll find that on Page 170 in your packet. Now, as you've been reminding -- I think in a wise sense directing staff to incorporate the Growth Management Plan and not deviate from that, that very language that you find in the Growth Management Plan is found on Page -- or was found in the code and has been there. If you note, that language has been deleted. It's under exceptions, it says, an exception from the vegetation retention standards above -- and again this is the 15 percent requirement -- shall be granted in the following circumstances. And that's right out of the GMP. CHAIRMAN STRAIN: Well, hefore you go too far, I've got a question of Bill. Bill, if that language was in the GMP -- I mean, this is a question we didn't ask when it came forward -- why is it struck? Why would we feel we can strike it? Or is there something missing here? MR. LORENZ: Well, it should -- I understood that it was going to be moved to a different section. It should not be struck. That's very clear GMP language, and it could be moved to a different section. But I haven't found the section that it's moved to. I think that was the question I asked -- CHAIRMAN STRAIN: Well, Bill, again, I'm not -- there's been a lot of things happening that I don't think everybody is fully aware of what their intentions were until they gets fleshed out like this. So we appreciate your help with that. Go ahead -- go ahead, Mr. Schiffer COMMISSIONER SCHIFFER: Bill, let me ask you a question, just for my own knowledge. Was there a way to illegally clear prior to January, 1989? In other words, the impression I get is that's when it came into Page 77 October 7, 2008 the code. So you're asking if something was legally cleared. But what would illegally cleared be? MR. LORENZ: Let me have Susan talk about that, because you get involved in a prior ordinance in 1974, and it was called a tree removal ordinance. COMMISSIONER SCHIFFER: And to save time, Susan, you can say yes or no. MS. MASON: There was rules starting in '74 about trees, and then it evolved over time. I don't have the exact time line so I can't go on too long. COMMISSIONER SCHIFFER: Yes. CHAIRMAN STRAIN: Thank you. MR. LEWIS: And I have reviewed the prior versions of the Growth Management Plan and the code, and that is correct. This thing has really evolved. And I think there's been some discussion over the past few months from members of the community, we really have gone from a requirement that you have to get a permit to remove vegetation, you have to get prior approval to remove vegetation to now that that there's a percentage of preservation requirement and that you have to actually preserve a certain percentage of existing vegetation. In addition to getting approvals to clear vegetation now you have to preserve a certain percentage, and we're getting into other areas. But that date is important, that January, '89 date is important because that's the date that the Growth Management Plan contemplated that preservation requirement that a certain percentage, and it's evolved over time and it's different today, but a certain percentage of a site would be preserved in terms of native vegetation, not acreage. And I think we're starting to blur the lines. The request that you asked, Commissioner Strain, I think that there is -- I do see in section -- if you turn to Page one -- I believe it's 168. And it's A.6.a romanet two, there is an exemption that they've Page 78 October 7,2008 created here new language that deals /with a parcel that was issued a county permit to clear vegetation for agricultural purposes prior to July, 1993 and remains cleared of vegetation. That is a very distinct and different exemption. Completely different exemption. So I will tell you, I've reviewed the language, I don't see where that exemption has been relocated or renumbered or moved. So it's either somewhat misleading or it's just patently incorrect when staff states in the beginning of the amendment request that they've relocated quote, the exceptions, close quote, subsection criteria -- this is on Page 165 I'm reading -- to the quote, general standards and criteria, close quote, subsection. I want to point that out. I'm not trying to point fingers, I'm just trying to articulate, especially if you see the context of what our client's gone through in addressing this issue with staff. CHAIRMAN STRAIN: But Doug, this is the prime example of what gets our community in turmoil over these things, and it creates a bad taste for not only business, because now it looks like business is always fighting but it's for the environmental community for taking positions that are not supported, especially when they're straightened out in the GMP. I would certainly like to know if this got relocated, Bill. It would be important at some point for you to tell us. And if it didn't, why didn't it and how we got here today. MR. LORENZ: For me, if it didn't it was simply an oversight. CHAIRMAN STRAIN: I know for you it might have been. I'm not sure that's everybody's involvement. Go ahead, Ms. Caron. COMMISSIONER CARON: Well, I wanted to say all due respect to your client, it would make no difference to me whether you had a client or not. That's a great catch. We don't want to be doing things like that, that's not the intent. It certainly isn't the intent of this Page 79 October 7, 2008 MR. LEWIS: And I'll tell you, in speaking with Bill, I think I'm very heartened by the reaction and I appreciate the efforts of staff to work through that. I think that was a little bit, in this context, a little bit of the client's frustration, because we were looking at very clear specific language and we wanted to meet with staff to say look, here's the exemption. We want to come in and show you what evidence we have of legal clearing. And we're happy to discuss that. That's a fair discussion. But we'd like to establish as a ground rule before we waste our free meeting with staff, because after that we have to start -- you know, they start charging us for those meetings -- we'd like to establish at least that if we can come in and show evidence of legal clearing before that date that that land is exempt. But we weren't able to get to that point. So I think it's illustrative and I think it's helpful. And partly I think we weren't able to get to that point because I think staff was getting confused with the way the code was currently written in the GMP constructed and what they were intending to do in this cycle -- CHAIRMAN STRAIN: There's no confusion-- MR. LEWIS: -- there may have been a mix-up. And that's my own supposition and I don't know if that's the case but-- CHAIRMAN STRAIN: There's no confusion. Staffhas an implementation document that says what it says, period. There should be no confusion. There should be no exercise of personal agendas to get there either. But go ahead, Mr. Murray. CO~MISSIONER MURRAY: You know, maybe in an effort to avoid errors such as this, we have -- typically we do underscore and strike-out and so forth. Maybe you ought to devise another format, another means by which we can show there's an anchor when we make a change or if language is modified, or bring it to our attention Page 80 October 7,2008 that it's modified. And while everybody strives to read and record everything they can, it is a fact that some things will be missed, as evidenced by what you caught today. Thank you. But it strikes me that if the director of his department doesn't know that something got changed and didn't get anchored someplace else, then maybe a good procedural method, maybe some form should be introduced. Because this is something you're not happy with either, I'm certain. MR. LORENZ: Correct. CHAIRMAN STRAIN: Okay, Doug. MR. LEWIS: I wanted to put back that 1985 aerial. And so in the context of our discussion, and I think what we were -- we're looking to establish is that in this regard 9.1 acres were cleared. Now I think there's a question as to whether it was legally cleared. Our client is very comfortable that it has been legally cleared as of that date, that those lands once they've been legally cleared that they are exempt from the 15 percent preservation requirement per the GMP and the Land Development Code. The Land Development Code which was adopted after the PUD was adopted originally and then amended and after the site was developed pursuant to site development plans, imposed a -- the Land Development Code imposed a 15 percent preserve requirement. And I think it's helpful to understand, this is a project where you had a PUD that was originally approved, it was amended, and then it was developed, 9.1 acres of that project had been developed, and then later on there was this 15 percent preservation requirement. Given that background, at best we're talking about applying 15 percent to the remaining 7.74 acres. Again, it's a 16.8-acre development under the SDP. And based on that application, our client has taken the position that the native preserve requirement is 1.16 acres. That's very, very different, about one acre. That's very different Page 81 October 7, 2008 from the 3.1 acres that staff originally had indicated based on a 24-acre PUD and based on an assumption that all of that acreage is native vegetation. You saw the aerial, you can see the aerial. Policy 6.1.1 (8) remains very clear and unambiguous, and it states that where a parcel was legally cleared, it's exempt. The January '89 date is significant as this constitutes the date that the Growth Management Plan was amended to add native preservation requirements that did not exist previously in the Growth Management Plan. The Growth Management Plan clearly recognized existing developments with vested rights and exempted such legally cleared parcels from the native preservation requirements. I see in -- as we talked about the exemption that staff is creating for this re-creation requirement, and I'll talk about that shortly. CHAIRMAN STRAIN: Doug, just so you know, you've been at it for 20 minutes now. We've having a lot of latitude with these LDC meetings because we do want everything. You're on a very project specific example. I think we all get it. So if -- you need to kind of move ahead if you could. MR. LEWIS: Okay, fair enough. Specifically in context with the language in the LDC, we're going to request that the strikethrough for the exemptions, that that be removed. That the language in the GMP remain intact and that the LDC be preserved. On Page 168 we get into the issue of where legal -- where vegetation's been legally cleared. The amount of native vegetation used to calculate that preservation requirement will be on the amount present at the time of that development order or land use petition application. I would suggest two things. First is that what we need to do is we need to recognize the exemptions that are in the code. And so when we're talking about legal clearing and the amount of acreage Page 82 October 7,2008 that's to be preserved, we need to recognize that there are instances like in this instance where 9.1 acres had been legally cleared. And within that 9 . I-acre parcel if there had been replantings that have occurred or development that's occurred, that acreage is exempt per the GMP. And the second is that we need to account for plats or site development plans that have come through the county, the county's looked at that and said, based on the existing vegetation as of the date of this SDP or plat, that we're going to require that you preserve "X" amount of native vegetation. What happens in effect when you don't recognize that is you have a moving target. If there's been re-creation or regrowth of native vegetation on a site, under this language you're calculating the amount that's present at the time of the development order. So I could come in today on a PUD or on a plat or an SDP and the county says you have to preserve two acres. We preserve two acres. I come back in 10 years and we amend our SDP and the county says well, we're looking at, through your EIS, that you've had some re-creation and there's more vegetation there. And the standard should not be what's there at the time -- what's present at the time of that development order. I think that's very clear. And so I would suggest that with respect to lands that have been legally cleared we consider those two things, one, where we have vested rights and two very clearly that where we have expressed exemptions, like the one I described, and that we don't penalize developments that re-create, that plant. It's a moving target. As Bruce Anderson indicated, it's very difficult to have certainty when you say today the standard is "X", in 10 years it's another standard. So I think we need to look at that specific issue in context with our development. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Does this language under Page 83 October 7, 2008 redevelopment and expanded sites -- do some of this -- although it certainly is much simpler the way it was in the old way -- but it says within the boundaries of an original site requesting development or redevelopment. Your preserve requirement is based on the original site development. So whatever you required and if you required nothing, you get nothing, right? Now, if you're looking to expand, that's what I think the next ones go into. If the preserve requirement is less today, then you get to go to the lesser amount, from what I'm reading here. And this is what I wanted you and Bruce to take a look at. But if our requirement now is greater, then you try to get as close as possible without re-creating anything. Is that what this is saying? MR. LEWIS: I think we're going to have to do some substantial work. And I can get into -- I can get drilled down and be more particular. But for example, original site. What is an original site? In our development we had an original SDP that cleared 3.1 acres. Then we had an amendment to the SDP that now we have 9.1 acres that have been cleared. COMMISSIONER CARON: But you had an original PUD. MR. LEWIS: We have an original PUD, that's correct. So-- COMMISSIONER CARON: Right. It had certain boundaries-- MR. LEWIS: Clearly. COMMISSIONER CARON: Okay. COMMISSIONER CARON: +++ MR. LEWIS: And at the time of the original PUD there was no preserve requirement. And so -- COMMISSIONER CARON: Right. So you don't have anything for those original acreage. 'MR. LEWIS: We have current Land Development Code, a current Land Development Code that says you're required to preserve 15 percent of the existing vegetation. And that's being applied to the Page 84 October 7,2008 development. The question becomes do we say that you have a 24-acre PUD, as staff did initially, and say that you need to preserve 15 percent of 24 acres. Or do we say we have a 24-acre PUD, we less out the 9.1 acres that were exempt because they were legally cleared prior to January, '89, and then we apply preserve requirement to that. But I think that to maybe expedite, there are a number of nuances and there are some things that are very technical, and Bill and I have gone over those. I'm happy to discuss those. In answer to your question, I think the short answer is I don't think that seven adequately addresses the issue of exemptions that exist in the GMP or the code or vested rights. COMMISSIONER CARON: Right, okay. And that was my question. So -- CHAIRMAN STRAIN: Doug, thank you for your time, and especially the important point you just made about the GMP language being struck out. And I only ask staff to please, go back and come back with us with something that's better than what we've seen. And I hope you keep your eyes on it, Doug. MR. LEWIS: Appreciate it. Thank's for your time. CHAIRMAN STRAIN: Jeremy, did you have something you wanted to contribute? MR. STERK: Yes, please. Jeremy Sterk, Davidson Engineering. I wanted to stick on this one real quick and just bring up two quick points on that same page, on Page 169. Not to really pile onto this number seven of redevelopment, but I don't think anybody really discussed the implications of Band C. Because that's really the ones that hit us head on with Youth Haven. And the implications of that, that basically it's -- you're providing 15 percent of your entire site if you're expanding, period. And, you know, that gets back to it's not allowing for any of the Page 85 October 7,2008 historic uses of the site or entitlements. So those two I think are just way off base and need to be rewritten. CHAIRMAN STRAIN: Understand, thanks. COMMISSIONER SCHIFFER: Mark, I have a question. CHAIRMAN STRAIN: Go ahead, Mr. Schiffer. COMMISSIONER SCHIFFER: And Jeremy can answer it, too. Jeremy, when you look at Page 170, the struck-through two. Doesn't that mean that if the site was legally cleared that it's totally exempt from all those requirements? Why was Doug saying that it would be -- he would take the native vegeta -- I mean, it says you're totally exempt from this requirement. In other words, the whole thing does not apply, the whole process does not apply, right? MR. STERK: Yeah, I think that's -- I mean, I would interpret that that it -- that's where the entire parcel is cleared of native vegetation. I think where we're running into some confusion is when the site's been partially cleared, what do we do then. COMMISSIONER SCHIFFER: Really? COMMISSIONER MURRAY: Those words are important. COMMISSIONER SCHIFFER: You really -- COMMISSIONER CARON: That's an important distinction to -- COMMISSIONER SCHIFFER: Okay. Thank you. MR. STERK: Thanks. CHAIRMAN STRAIN: Thank you. Brian, did you want to speak? You've been sitting there for meeting after meeting, so I figured you probably had something to say to us. MR. MACKENZIE: For the record, Brian MacKenzie, representing Collier Resources Company. No, my issue got resolved, so -- COMMISSIONER CARON: Yeah, I thought we took care of you. MR. MACKENZIE: -- if you have any questions, let me know. Page 86 October 7, 2008 CHAIRMAN STRAIN: No -- COMMISSIONER CARON: I thought we took care of you the other day -- MR. MACKENZIE: No, I like to talk, I like to talk. This answers an important social need for me. (Laughter. ) MR. MACKENZIE: This went well. My part went well with staff, so I say kudos, okay? CHAIRMAN STRAIN: The reason was you pre-wrote it before you got here. That's what did -- you set the pattern. MR. MACKENZIE: We dealt with it without any coercion from the boards or anybody, so -- CHAIRMAN STRAIN: Thank you, Brian. We appreciate it. Okay, I think we can finish our discussion then with -- oh, you have more. MR. ANDERSON: I wanted to answer Mrs. Caron's question on the record. I had a chance to look at Page 9. And no, it does not address the concerns I raised. COMMISSIONER CARON: Right, we just got that. MR. ANDERSON: And I see that on Page 226, besides removing the additional language in paragraph Roman numeral IV, there's a whole new Roman numeral five that guts everything else that's in that paragraph. And I would ask that that be removed as well. Thank you. COMMISSIONER CARON: Roman numeral V -- CHAIRMAN STRAIN: What page are you on? MR. ANDERSON: 226. COMMISSIONER MURRAY: Will the mystery writer please step forward. CHAIRMAN STRAIN: Yeah, roman numeral five. Yeah, I found it. Page 87 October 7, 2008 COMMISSIONER CARON: I got it. I was back on 170. Sorry. MR. LENBERGER: The language was added at the request of DSAC to acknowledge vesting. And I would say that when we work on the native vegetation definition, we'll have to look further into vesting with the county attorney's office on that issue. But that was an attempt by DSAC and initial talks we've had with the county attorney's office to address DSAC's concern. CHAIRMAN STRAIN: Well, you're going to rewrite it anyway, right? MR. LENBERGER: Well, apparently we're going to be looking at the whole vesting issue. So it needs to be looked into. CHAIRMAN STRAIN: We understand it's the county attorney's fault. COMMISSIONER CARON: We haven't picked on him today. MR. LENBERGER: I never said that. MR. KLATZKOW: I feel like I'm home. CHAIRMAN STRAIN: Okay, I think we finally wrapped up that section, 219, if -- the page we started on. So now let's move to 3.05.07.H.1.g, which is Page 193. And that's the preserve standards and preserve management plan. Okay, Steve, do you want to start us out in any manner? MR. LENBERGER: Okay, this amendment -- I put the GMP language on the visualizer. It's also included in underlined strike-through form in the beginning of the amendment so you can see what was added to the amendment. And basically this is to address preserve management plans and see how they address the concerns indicated in the compo plan. You've heard this amendment before. We did a little cost analysis for you, as directed by this board. And I'll be here to answer any questions, if you want to go page by page. COMMISSIONER CARON: We haven't gotten anything new, though. Page 88 October 7,2008 MR. LENBERGER: You haven't -- its revision date is dated September 16th. Do we have this? COMMISSIONER MURRAY: That's the one I'm looking at. CHAIRMAN STRAIN: You don't have it. COMMISSIONER CARON: I don't have it. MR. LENBERGER: 193. And last revision is September 16th that I have. COMMISSIONER CARON: She handed it out to you this morning? CHAIRMAN STRAIN: You can't read it between this morning and now. MS. F ABACHER: This morning's just -- it was already handed out to you originally -- CHAIRMAN STRAIN: Who has September 16th, 2008. COMMISSIONER MURRAY: I do, from original. COMMISSIONER VIGLIOTTI: (Indicating.) CHAIRMAN STRAIN: No, no, prior to today. Who's had it to read from? Mr. Murray has, I have. Tor, which date is on yours? COMMISSIONER KOLFLA T: August 11th. CHAIRMAN STRAIN: Okay. Mr. Vigliotti, Ms. Caron and Tor have August 11 tho Bob and I have -- okay . You're going to come back with rewrites, this will be discussed with those sets of rewrites. And we'll just put it off till then. I don't want to get into something, especially with a majority -- not a majority having read the actual document. Let's go to Page 157. The document you should be reading from on this page should be dated September 12th, 2008. It's the revision to the dead plants with bird nests in them. That's as scientific and environmentally sensitive as I can be today. COMMISSIONER CARON: If they had just said that. CHAIRMAN STRAIN: Yeah, it's got some highlight on it. Page 89 October 7, 2008 Okay, Steve, this is the second time this has come back, and it's a rewrite from last time. The intention here was to go back and focus on the fact that we were talking about trees with eagle nests in them, and we're taking all the other language. Now, has everybody reviewed 't? 1 . Ms. Caron? COMMISSIONER CARON: And from I read, I think they finally did what we had asked them to do. CHAIRMAN STRAIN: And this is the first time I've not had a markup on one, so -- does anybody else have any questions or concerns? (No response.) CHAIRMAN STRAIN: And then we're talking on pages 157 through Page 163. Okay. Brad disappeared, so I just guess we can -- well, we've got enough to vote so -- well, we can -- yeah, I guess we could go back and vote on this after he gets back. So Steve, I don't think there's any questions on this. We'll vote on it towards the end of the meeting. We have one more left to do today, and that's the passive recreation on Page 139. COMMISSIONER CARON: Here's Mr. Schiffer, maybe we could take a vote now, get that over with. CHAIRMAN STRAIN: Brad, since you're back, we wanted to make sure we got any comments from you on Page -- first of all, on Page 193 . Would you tell us what version you have, what's the latest version you have? COMMISSIONER SCHIFFER: I have September 16th. CHAIRMAN STRAIN: Okay, so that's three to three. So we're postponing that one to be discussed when all the rewrites come back together. COMMISSIONER SCHIFFER: Okay. Page 90 October 7, 2008 CHAIRMAN STRAIN: Because not everybody's got the same . verSIon. COMMISSIONER SCHIFFER: Is that the correct version? COMMISSIONER CARON: You actually have the correct one this time. CHAIRMAN STRAIN: And then we're moving on to -- then we went to Page 157, which was a rewrite of the dead trees with bird nests. And we didn't have any problems with it. We're looking for your input. COMMISSIONER SCHIFFER: I have none either. CHAIRMAN STRAIN: Okay. So now we've got everybody on the same page, we're all here. So I can ask for a recommendation for LDC Sections 1.08.02, 3.05.05, and 10.02.06 as to be for a recommendation of approval or denial consistent or inconsistent with the GMP. COMMISSIONER MURRAY: Move, approval, consistent. CHAIRMAN STRAIN: Mr. Murray made a motion to recommend approval consistent with the GMP. Is there a second? COMMISSIONER VIGLIOTTI: Second. CHAIRMAN STRAIN: Mr. Vigliotti seconded. Any discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER KOLFLA T: Aye. CHAIRMAN STRAIN: Aye. Opposed? (No response.) CHAIRMAN STRAIN: Motion carries 6-0. One more done. COMMISSIONER SCHIFFER: You guys went fast. I'm going Page 91 October 7, 2008 to go back. CHAIRMAN STRAIN: Okay, in the passive recreation section is -- Ms. Fabacher, go ahead. MS. FABACHER: It's my problem. CHAIRMAN STRAIN: What is? MS. FABACHER: This amendment. No, I'm saying, Steve isn't going to present, I was going to say I'll be presenting. CHAIRMAN STRAIN: Okay, I wanted to get us on the right page and the right -- just turn to Page 139. And the latest edition that everybody should be reading off of is dated 2/21/08. Does everybody have -- COMMISSIONER MURRAY: 2/21? MS. FABACHER: No, you got one on 7/30/08. COMMISSIONER SCHIFFER: Really? COMMISSIONER MURRAY: Yeah, that's what I have. CHAIRMAN STRAIN: Okay. MS. F ABACHER: But let me say this. I don't think it's changed significantly, because staff has taken the position at this point that if we're going to have to do extensive work that will have to go to another cycle, but the fact remains is we still contend that when it was looked at in 2006 -- and I have the dates of the minutes, if you would like to go back on them. The BCC heard it on October 30th, 2006, and that's going to be Pages 42 to 44 of the minutes for the BCC of that date. And then the CCPC heard it on August 1 st, 2006, and that is Pages 9 to 15 on the August 1 st, 2006 CCPC minutes. In doing future research on this, I noted that when the BCC went to pass this term in this way, at that time it had been changed by the planning commission, and the planning commission had voted 7-0 at that August 1 st meeting to approve this same language to go to the board. It's unclear about what the board's direction is on this. It always Page 92 October 7, 2008 has been. The problem is, as I tried to explain the other day, and I'm sure -- I know you're aware of the Attorney General's opinion that the State of Florida doesn't define passive recreation, because it depends. It is really a site specific issue. We had that long discussion on preserves about how some might allow boardwalks, some might allow bicycles or not. You're trying to deal with resource-based conservation-zoned properties such as conservation Collier's, and then preserves, which are obviously zoned the same as whatever commercial or industrial they're on. What I'm saying is those are intended to preserve the resources. And it would be on a site by site determination as to whether or not any of these passive activities could be used. Same thing goes with Conservation Collier, and particularly this also involves PUD's. And I think that's why the Board of County Commissioners did want to have some clarification or something to put in. The scheme that staff has come up with two years ago, and still stands by, is that we -- I believe the first time we met, I showed you about nine to 10 different definitions from different, you know, parts of Florida, that all are pretty much generic and say the same things, and they say include but not limited to. And it's always been our strategy that we would go and identify exactly which passive recreational uses by the PUD, by the preserve or by one of the Park and Rec's parks. So if you -- at this point we've done a lot of work and time on it, and if at this point you just can't live with it, then we're requesting you go ahead and move to deny it or want put it to another cycle, I can put it back to the board with a denial and get further direction. But I keep saying that we're just not going to -- all the users will not agree on one set of passive recreational activities. CHAIRMAN STRAIN: So this -- and my memory is not as good as your recent reflections when you've read everything. You're saying Page 93 October 7,2008 this language came before us a year or two ago, we approved it, the board then approved it -- MS. F ABACHER: Excuse me, you amended it and staff agreed. Then you approved it and it was passed to the board. CHAIRMAN STRAIN: And the board rejected it? MS. F ABACHER: No, it was hung -- it was caught up with a lot -- it ran with some Conservation Collier language. And at that point the board said take the Conservation Collier language, put it in the Code of Laws and then come back with this passive recreation definition in another cycle. CHAIRMAN STRAIN: So the passive recreation definition in front of us today, the one that was previously approved by us, was never really weighed in by the BCC; is what you're saying? MS. F ABACHER: They read it, they liked it. I don't know why we couldn't approve it, but we were all caught up in Conservation Collier matters. It was all packaged with the Conservation Collier stuff that we did in essential services two years ago. CHAIRMAN STRAIN: Okay. So what you're asking today then is to us to re endorse it or to re suggest changes to it so it can either be moved forward or kicked out to another cycle? MS. FABACHER: Yes. CHAIRMAN STRAIN: Ms. Caron? MS. FABACHER: Oh, sorry. Jim? MR. SCHMITT: I just want to for the record make sure you understand. What got caught up in this was the passive recreation but hunting and some of the other type of activities that -- or -- MS. FABACHER: Fishing, boating-- MR. SCHMITT: -- parks and what was open, allowable for public access. And that's what got kind of caught up in the whole definition of this with the board. So we just haven't gotten this thing through. And that's why it's back in this cycle. CHAIRMAN STRAIN: Okay. Ms. Caron? Page 94 October 7, 2008 COMMISSIONER CARON: I think that's absolutely correct. I mean, all passive recreational uses are not appropriate for all preserves. I mean, there are going to be differences. And Parks will be more lenient than a strict preserve will be. So the language as we have it here right now, I think is fine. We added the word uses, passive recreation uses, to it. I would suggest that at the end we also add provided the Board of County Commissioners determines that such use is appropriate for the environmental or conservation of the natural resources. And then that puts it through the process, we get to look at it on a case-by-case basis, which is the only way, according to the AG's report that the we got we can actually do it. CHAIRMAN STRAIN: But then any time someone suggests that they have a passive recreational use, they'd have to come -- COMMISSIONER CARON: They have to define it -- CHAIRMAN STRAIN: They'd have to come back -- COMMISSIONER CARON: -- for their use. CHAIRMAN STRAIN: -- through the public process. COMMISSIONER CARON: No, no, no. Initially when they come through the public process, they would have to define it. CHAIRMAN STRAIN: Okay, but what if it wasn't -- what if a use came up that was thought of later on, it wasn't in the initial list, you're suggesting they come back through the PUD process or whatever? MS. FABACHER: I think it could be a PUD deviation right up on the face of it. I think it could be presented as a PUD deviation. We have recreational uses, but we also -- passive recreational uses, but we also have this use which we would like to be considered passive recreation. Or in the PUD they could say anything -- they could say we will allow passive recreational uses plus ATV's, plus -- and just name in the PUD what they would -- MR. KLATZKOW: You can't use ATV's. Page 95 October 7, 2008 CHAIRMAN STRAIN: Mr. Murray? MS. F ABACHER: Well, I just used that, sorry, as an example. COMMISSIONER MURRAY: Once you start to define, you get yourself into the problem of then having to come back, I think. CHAIRMAN STRAIN: Maybe if we leave -- if by putting a definition in the code, it allows someone to come in through a PUD and argue that they're passive recreation. And then the boards can then hear the process as Donna was indicating, and through that process they could be deemed approved by the BCC. So I'm not sure that -- the language at the end you were adding is what got me a little confused. I was worried it was going to trigger more reviews strictly because they wanted to add a use after the fact. Well, it would anyway. That's why I had that language is what I'm getting at. MS. FABACHER: And if you're not in a PUD, if you're just in a -- now, the preserve, I don't know what Bill's process would be for adding a passive recreational use to a preserve, but I think they just identify it in their management plan is my understanding. But the other thing I was thinking of is -- the other traditional way to go would be to ask -- you know, you talk about compatible uses -- and that goes to the BZA, as you recall when we did our little land use book -- that goes to the BZA to determine whether this is compatible. So they could either do it through you and the board in a PUD document. Or if there was some contention and Susan, say, did an interpretation and say no, this is definitely not a passive recreational use in this instance at this site -- well, she can't say at this site, but in this instance, we don't agree -- then it goes to the BZA and they determine if it's a compatible use or not to passive recreational activities. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: Yeah, I think that's sort of where I Page 96 October 7, 2008 was trying to get with the added language, was to make sure that it didn't just end up being a staff determination that swimming was a good thing, you know, was an appropriate use. It should come before the boards, whether that's the BZA or -- MS. FABACHER: I'd have to ask Bill Lorenz about the process for identifying the passive recreational uses in a preserve management plan. I don't know if that comes before the planning commission or the board or not. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: You know, I wanted to qualify something. I have two editions, one original, and they were dated 7/30, and then a new one in the packet that was given out. And I do not see the words uses put into the documents I have. And yet Donna just read off uses. COMMISSIONER CARON: It was what we requested. COMMISSIONER MURRAY: What we requested, but I don't see it in here. So it hadn't been modified yet to -- MS. FABACHER: Well, because that would throw it in then with uses, and they're not really uses -- COMMISSIONER MURRAY: Okay, so maybe I didn't hear the rest of that -- MS. FABACHER: -- the use would be conservation use or whatever the public use is that a park is zoned. It's really not a use, it's more activities. And I might add that you all also added characterized by non-motorized activities. That was added by the planning commission as Mrs. Caron was pointing out. COMMISSIONER SCHIFFER: Mr. Chair? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER MURRAY: I hadn't finished yet. CHAIRMAN STRAIN: Oh, Mr. Murray still has more. COMMISSIONER MURRAY: I just -- trying to get the point Page 97 October 7, 2008 here, your attention should be called to 140.3, where they talk about, you've read it no doubt, but they talk about as not defined by statute. And so it comes down to either listing every mother's son on there or it comes down to some other kind of statement. An activity and use is the same to my way of thinking. An activity is essentially a use. MS. F ABACHER: Well, not in our terms. An activity certainly doesn't require -- changing a use is a serious thing. The use in a conservation district is -- I mean in a preserve is a conservation use. The use in a park is going to be a public use, I forgot what we call them, public utilities -- I forget the zoning. And the park is the use. What you do in the park is really not the use. COMMISSIONER MURRAY: But basically you're saying that in your definition you say passive recreation activities characterized by -- MS. F ABACHER: Right. COMMISSIONER MURRAY: Passive recreation activities are characterized by. They're activities, they're use. No? MS. FABACHER: No, they're different from a use because -- I mean, you could say in the regular world activities are used. But in planned zoning a use is a different thing that you would have to treat a whole lot more seriously than an activity. Because they're really not a list of permitted uses. When you look at the land use and what's permitted, they don't say kayaking, you know. I mean, retail sale of goods, park. These are the permitted uses. You don't see kayaking and all as a permitted use. That's why we're calling it an activity. COMMISSIONER MURRAY: Okay. I don't think we've have resolved anything. CHAIRMAN STRAIN: Okay, Mr. Schiffer. COMMISSIONER SCHIFFER: All's I wanted, could somebody on the visualizer put the most recent version, just to make sure mine's Page 98 October 7, 2008 close. And the other thing is, is the problem going to be with this definition that after something is built that there's an activity on it that code enforcement or somebody is trying to regulate or is this during the plans process, people designing elements for a preserve? CHAIRMAN STRAIN: I bet you it's going to apply both ways, because there's a lot of preserves out there right now, and people are going to want to, if they do put something in there or if they've currently have something in there that doesn't fall within this definition, I'm not sure how that would be treated. We probably need to consider that. Is there a definition going to be put on the -- MS. FABACHER: Yes. It's also on the first page of that packet I gave you. MR. SCHMITT: For clarification, I don't enforce based on definitions. Definitions are there only to assist in the understanding of how the code is written. As you know, when we went through the recodification, one of the things we tried to do is remove regulatory language from definitions. So all this is is setting the standard as to what is deemed passive recreation. And I've got to tell you, I can't even remember why we got into the reasoning why we even had to have a definition. But you do recall the last time we went through this mental gymnastics was the passive recreation for Cocohatchee. And we went through -- CHAIRMAN STRAIN: And we listed them-- MR. SCHMITT: -- you know, what can they do, can they throw Frisbees versus whatever. I don't even know why we're -- I can't even recall now why we're wrestling with this, other than we were looking for a definition because it's used elsewhere in the code. CHAIRMAN STRAIN: But is there a problem. Page 99 October 7, 2008 Mr. Klatzkow? MR. SCHMITT: I don't think there is. MR. KLATZKOW: Why are we defining passive recreation to begin with? CHAIRMAN STRAIN: That's what I just asked, why is there a problem? Do we have a problem in the county with the issue. Because if we don't, and we're currently defining it in each PUD as it comes forward, why don't we leave well enough alone. Ms. Caron? COMMISSIONER CARON: In almost every PUD that comes before us, under preserve section, it says passive recreation uses, right? MS. FABACHER: I believe you're right, Commissioner. That's why the board asked to get a definition. COMMISSIONER CARON: Or is it just saying passive uses? MR. LENBERGER: It says uses within preserves is usually the way I've seen the PUD structured. COMMISSIONER CARON: Uses within preserves, and what does it say? What's -- use number one is what? Passive recreation uses, right? MR. LENBERGER: We've had-- COMMISSIONER CARON: Passive recreation is what it says, period. MR. LENBERGER: I'd have to defer to Susan on the current formatting. I haven't been involved in the PUD's lately, so I will-- CHAIRMAN STRAIN: Mr. Anderson, you're sitting there like you may be able to contribute to this. MR. SCHMITT: Bruce, you may have to write the code here. Could you help us? I won't be mad at you this time. MR. ANDERSON: For the record, Bruce Anderson. I think you've really already done it. You've already fleshed out Page 100 October 7, 2008 the definition in the section called allowable and exempt uses within preserve areas. You've been pretty specific, but you've also had all inclusive language in there. And I speak just for myself, but let's live with the loose flexible definition, I'll call it, in the Comprehensive Plan. CHAIRMAN STRAIN: Which says? MR. ANDERSON: Which says passive recreational uses that do not impact the minimum required vegetation or cause a lot loss of function to the preserve area. Loss of function to the preserve area includes a reduction or a change in vegetation within the preserve and harming any listed species present in the preserve. And then it says more specific standards to implement this policy shall be set forth in the land development regulations and will address the types of construction that are compatible with the function of the preserve. The LDR's will also provide criteria to define appropriate passive recreational uses. The criteria will be established to allow for passive recreational uses such as: Trails or boardwalks that provide access within preserves, providing the use doesn't reduce the minimum required vegetation or cause harm to species. The problem with waiting until in the zoning change to do it, and I mean, that's great to put it in the PUD, but most of the problems crop up afterwards, whether it be an old PUD or a PUD that gets interpreted a different way. CHAIRMAN STRAIN: That section in the code, and we've already reviewed it, that's why I can't remember what section. Do you remember what page that was on our -- MR. ANDERSON: 198. CHAIRMAN STRAIN: We've already sent that back for-- MR. ANDERSON: Rewrite. CHAIRMAN STRAIN: -- rewrite. But the essentials of it stay Page 101 October 7, 2008 the same. So if we were to take the definition in the GMP, insert it into the LDC so it can be found, same language, and reference the standards that are starting on that section, we'd be -- MR. SCHMITT: Two different things. Two different things. Passive recreation may not necessarily be only in preserves. COMMISSIONER CARON: That's right. MR. SCHMITT: So that was the issue. So we buy -- some of this came up during Conservation Collier, what can they do within lands that are Conservation Collier. They're not designated preserves, but they are lands in preservation. Now -- whoa, was that good double-speak, huh, that was pretty good. MR. ANDERSON: I'mjealous. MR. SCHMITT: But -- MR. KLATZKOW: Conservation Collier's the problem, because sometimes if you have a big enough tract you might want hunting on them. But you certainly don't want hunting on a five-acre preserve in a PUD, all right. Sometimes you might want swimming if it's adjacent to a lake in a large enough tract. MR. SCHMITT: You know what we were dealing with Mark, on the Rookery. I mean, bird stands, elevated walkways, all those -- I'm fine with leaving it on a case by case basis. But I -- somehow this -- and I can't put my finger on it why we were directed to define it. I just cannot recall now. CHAIRMAN STRAIN: I think the Cocohatchee, for example, was one time that we really realized we didn't have a definition for it. But we worked one out for that project -- MR. SCHMITT: We certainly did-- CHAIRMAN STRAIN: That was a detailed one and it worked out for the better. I mean, it got explicitly stated in the -- MR. SCHMITT: I think when we do it as part of the zoning and as part of stipulations in the zoning, I think that's great. Because that's Page 102 October 7, 2008 a good place to put and define what can be done. And I think eventually, like the Rookery when it comes in, when they come in for their PUD, it will be defined what can be done there. But I think this came up more with Conservation Collier and some of the other lands that are not dedicated preserves but they're lands in preservation and what can be done on those lands. CHAIRMAN STRAIN: Ms. Caron? COMMISSIONER CARON: And you worked out Conservation Collier, correct? MR. SCHMITT: Yes. Public access, normally it depends on the size of the parcel. We have to have -- yeah, go ahead. COMMISSIONER CARON: You said yes, you worked it out. I don't care what you worked out right now -- MR. SCHMITT: Let me explain the reason why, because-- COMMISSIONER CARON: No, no -- MR. SCHMITT: -- some of the things, when we have -- we have to allow for ADA access and other issues. COMMISSIONER CARON: Understood. CHAIRMAN STRAIN: I like the standards we have, and I think we -- COMMISSIONER CARON: Exactly, so that's what I was saying, we don't maybe need to do anything at all. CHAIRMAN STRAIN: Is there a down side to using this definition? MR. ANDERSON: The one that's proposed? CHAIRMAN STRAIN: Right. COMMISSIONER CARON: Yeah, right here. MR. ANDERSON: Yeah, I think it ties everybody's hands. I mean -- COMMISSIONER CARON: Why? MR. ANDERSON: There may be conflicts with the section that I just referred you to where it says allowable uses within preserve Page 103 October 7, 2008 areas, and it gives a definition of examples of types of passive recreational uses. And it's more detailed than this definition. CHAIRMAN STRAIN: Bill, why wouldn't we just use the bulk of the language from the GMP to be as close then to the GMP as we possibly can, and then augment that with anything we would need to do to clarify it further with the LDC? See, what I'm getting at is we have a pile of PUD's out there that go back decades, and in those PUD's, rightfully so, as Ms. Caron pointed out, in their section they said passive recreational uses are allowed. Well, I can tell you that people have a different idea of what passive recreation is. Some will think horseback riding and stables may be passive recreation, some will think bird watching is passive recreation. And it may be. But I think there's probably a reason -- now, the other concern I have is if you go to define it and it affects those older PUD's, what kind of issues are we getting into with Burt Harris claims and issues like that? Any at all? MR. KLATZKOW: No-- MR. SCHMITT: Again, I don't look at a definition as a regulatory -- MR. KLATZKOW: This definition simply says examples include the following. It doesn't eliminate anything. And I think that on a case-by-case basis you could say there's enough acreage here to do horse riding here, but on this one there isn't. I think it's malleable enough that you could use this on a case-by-case basis. MR. SCHMITT: I like what the language that Ms. Caron mentioned at the end. Just add that provision on the end, or other uses as approved during the public hearing and zoning process, or something to that effect. COMMISSIONER CARON: Something like that, yeah. Page 104 October 7, 2008 MS. F ABACHER: Activities. MR. SCHMITT: Or other activities as approved through the public hearing and rezoning process. MR. KLATZKOW: Or just let it go and do it on a case-by-case basis. CHAIRMAN STRAIN: Mr. Murray? COMMISSIONER MURRAY: Mr. Klatzkow, on what you've just said, which it seems fine, 10 years or whatever into a PUD, the homeowners decide that they wants to do something different. Will that compel coming back for a revision of a PUD? MR. KLATZKOW: Well, no. They're not amending the PUD, what they're saying is that we think that a passive use is this. They start doing it I guess it becomes a code enforcement issue, where code enforcement says that's not really a passive use. CHAIRMAN STRAIN: Couldn't they come under section, Page 198 and 199 that we've already discussed and meet those standards and then qualify? COMMISSIONER MURRAY: See, my concern is we said horseback riding, for instance, Cocohatchee could have horseback riding. And some place might want to have horseback riding, they didn't have it before. And code enforcement says you can't have horseback riding. And now they're forced to come back in some form and they have to abate, and then they have to try to change. No? MR. KLATZKOW: Which is why I like just doing it on a PUD-by-PUD basis and you avoid that. COMMISSIONER CARON: Yeah, Cocohatchee-- COMMISSIONER MURRAY: No, maybe I didn't make myself clear. The PUD was already established. Some time goes on and the community decides it wants to have an additional or another in place of, either way we have it, other form of their determined passive recreation that is not listed in the original PUD. Does that then mean that they have to come back in for a Page 105 October 7, 2008 rezone? Because that's the concern I would have. MR. SCHMITT: No. It depends on if they want to put stables on-site or some other type of use, they may not have an allowable use. COMMISSIONER MURRAY: It is a concern, it is something we have to think out. MR. SCHMITT: But I have golf carts that go through preserves. Golf cart paths. I have other type of -- CHAIRMAN STRAIN: But you know, with the language we put in Section 3.05.07.H.l, whatever, and the GMP left as it is, do we really need another definition to enter the picture? MR. SCHMITT: I'm fine with it. We'll just go back to the board, tell the board that -- MS. F ABACHER: You deny it. CHAIRMAN STRAIN: I think the standards that we've put in that 3.05.07 provide what you can and can't do within those standards, and if you want to go beyond that you need a deviation or a process of the PUD. If that works, we don't have to beat this to death. Mr. Schiffer? COMMISSIONER SCHIFFER: And then, you know -- and I agree, really, putting a standard in the preserves so everybody knows what a preserve is. Joe, when you say you have golf carts going through, you actually don't, you have a preserve bisected by a golf cart path -- MR. SCHMITT: Bisected, correct. Right. COMMISSIONER SCHIFFER: -- there's a preserve on each side. And then if somebody wants to use non-preserve area for passive recreation we'll define it at the time of zoning as to what their limits are then. So this definition really isn't useful. I definitely think everybody should understand what can go on in a preserve, and it should be controlled in the section Bruce noted, and then there's just no reason for this. Because if somebody -- this definition would only be useful Page 106 October 7,2008 for outside preserves areas anyway, and again, it's an activity we would establish at the hearing. CHAIRMAN STRAIN: Well, I think the consensus then from this panel is that we don't need this definition, and we've already covered it in the section that's being rewritten. Is -- that meet with everybody? COMMISSIONER MURRAY: I'll go with that. CHAIRMAN STRAIN: Okay, well then I think we could do that with a motion. LDC Section 1.08.02, a recommendation for approval or denial as inconsistent or consistent with the GMP. Mr. Schiffer? COMMISSIONER SCHIFFER: Yeah, I'll make that motion that be not necessary to maintain consistency with the GMP. CHAIRMAN STRAIN: Okay, is there a second? COMMISSIONER VIGLIOTTI: (Indicating.) CHAIRMAN STRAIN: Mr. Vigliotti seconded it. Discussion? Bruce, you're shaking your head. You're not -- you can discuss. What's up? Don't want to make a mistake, so -- because you'll just have us come back here under some kind of court order or something, I know. MR. ANDERSON: You really shouldn't make a finding. But it's -- that you don't need to do something consistent with a plan or that you can do something that's inconsistent. CHAIRMAN STRAIN: So it's strictly a recommendation not to approve. MR. ANDERSON: And make a finding that what you're recommending is consistent. CHAIRMAN STRAIN: Okay. Mr. Schiffer? COMMISSIONER SCHIFFER: I'll make that motion to recommend denial and that that motion is consistent with the GMP. CHAIRMAN STRAIN: Mr. Vigliotti, do you second it? COMMISSIONER VIGLIOTTI: Yes, I do. Page 107 October 7, 2008 CHAIRMAN STRAIN: Okay, now discussion. (No response.) CHAIRMAN STRAIN: None. All in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 6-0. That takes us through everything that we have, except for all the rewrites we sent back. And all those I think are strictly environmental. And Mr. Klatzkow, I have to ask you, we need an indefinite-- we don't have a definitive time, and it won't be any time soon. MR. KLATZKOW: Well, you can talk to Joe. I don't think you're making this cycle -- MR. SCHMITT: No, this basically concludes this cycle. We will look at dates when we can bring these back under a special cycle or a follow-on cycle, because they're going to take some time to do rewrites. CHAIRMAN STRAIN: I would surge that in the rewrite process, please, get together with some of the stakeholders that were in these rooms. Try to get language that everybody can understand. Because we've just got to understand it. And I think if we -- that's part of the problem with the public side of it too. MR. SCHMITT: We have been with the stakeholders on this. And we've put a lot of -- between the various committees this has gone through, the stakeholders have been involved. Page 108 October 7, 2008 It's unfortunate that it gets to your level when it really becomes detailed. Because this has gone through several, at least seven or eight . reVIews. CHAIRMAN STRAIN: Joe, I know you would understand this, I bet you if you were to take anyone of those other committees and ask them, individuals, point blank one at that time, understand what these mean, what they actually sent to us, it would be kind of like for the most part we are, you can't tell by the language. The language still is not clear enough to really get a good understanding of those users that need it. So I think that's becoming critical-- MR. SCHMITT: We went through painful-- I mean, I'll call it painful. But we went through detailed review with the practitioners that put this in place through the DSAC, and there were rewrites both at the EAC and at the DSAC level. I appreciate your efforts. And I do want to point out Steve is probably suffering from shellshock. But we did -- for that area where it was January, 1989, we've already discussed that. Steve already had direction for the rewrite on one of the other elements to put that language back in. Somehow __ you don't even have the versions yet that he started the rewrite. But that language, after we began to deal with what we were dealing with Youth Haven, it became clearly evident a month ago that we said well, this was not put back in where it should have been. And Steve has that in one of the rewrites, but you'll see that when it comes back. But it was -- why it was taken out of this section, I don't know, but we clearly identified it needed to go back in. CHAIRMAN STRAIN: Well, for your shellshocked staff member there, Steve, we certainly appreciate your efforts and patience today. (Applause.) CHAIRMAN STRAIN: Without you it would have been much, Page 109 October 7, 2008 much worse. So, really, thank you for trying to help us through this. I know you may feel like it didn't come out right but -_ MR. SCHMITT: He did a good job -- CHAIRMAN STRAIN: He did. MR. SCHMITT: Just understand, there's at least one, two, three, four, five, six, seven, eight EAR-based amendments, at least seven EAR-based amendments that will be delayed. And that's fine with me. We will work with the stakeholders involved so we can clarify that language. There's two that you had reviewed last Thursday. One was the EAC powers and the other had to do with a submittal of requirements for permits, both of which had minor rewrites, one involving you wanted some formulas. But those two will be kicked to the next cycle. You don't have time to review them, let me explain, number one. Our advertisement runs out on the ninth. The only way you could see it is on the 16th. You can't see it on the 16th because I'd have to readvertise. And I can't readvertise for the 16th because I'm not within the 14 days. So be that as it may, you will not see anymore amendments. We will prepare and finalize all the rest of the amendments you approved today and previous amendments for the board hearing on the 30th. And the ones that you didn't get to, which were actually three, and another six or so will be bumped until we can sort through with the industry and come up with language. We want to get with the stakeholders involved. We certainly would appreciate if you have any written input that you want to provide us, we'd certainly like to take your -- if you have notes on your pages for any of the ones that you went over with Steve, we'd appreciate it. And then we can work from there. Because, as I mentioned to you at the start of this, I want this to be right, because these are very, very critical issues. And I think the ambiguity in the code is what's been causing problems. And I -_ Page 110 October 7, 2008 CHAIRMAN STRAIN: Agree with you -- MR. SCHMITT: Unfortunately what we're faced with is now still some more ambiguity in the code. And what this was meant to do is try and clean up some of that ambiguity . We'll get there. CHAIRMAN STRAIN: Thank very much, Mr. Schmitt. Mr. Schiffer -- oh, Ms. Caron and Mr. Schiffer. COMMISSIONER SCHIFFER: I was going to say, do you need a motion to adjourn this cycle, let me know, okay. CHAIRMAN STRAIN: As soon as Ms. Caron gets done. Ms. Caron? COMMISSIONER CARON: The two that we did not -- that we were going to hear next time at the bottom here, the powers and duties, was that -- I was just trying to remember whether that was a massive rewrite. CHAIRMAN STRAIN: The EIS one for the -- no, no, one was dependent on the other, so we can't -- the EAC stuffwas really dependent on the EIS language, so -- COMMISSIONER CARON: Okay, yeah, you're right. MR. SCHMITT: Right, the EIS -- there was EIS language, and that is certainly dependent on the other one line you struck, which had to do with additional meetings, or something to that. That's already in an ordinance, that doesn't even have to be in the LDC, which I already -- I told John that that's already in a separate ordinance for committees and board meetings. But that was written in there specifically because of some of the past problems in EAC. But that language didn't need to be in there. The other one you wanted some kind of a formula __ COMMISSIONER CARON: Calculations-- MR. SCHMITT: Yeah, calculations -- COMMISSIONER CARON: -- and needs other exceptions, yeah. MR. SCHMITT: Which -- Page 111 October 7, 2008 COMMISSIONER CARON: I just looked, thank you. CHAIRMAN STRAIN: Mr. Schiffer? MR. SCHMITT: -- won't have time to do. I mean, we're out of time. COMMISSIONER SCHIFFER: It is my privilege to move to adjourn Land Development Code amendment Cycle 1,2008. CHAIRMAN STRAIN: Is there a second? COMMISSIONER VIGLIOTTI: Please. CHAIRMAN STRAIN: Mr. Vigliotti begging us to adjourn. All those in favor, signify by saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER CARON: Aye. COMMISSIONER MURRAY: Aye. COMMISSIONER VIGLIOTTI: Aye. COMMISSIONER KOLFLAT: Aye. CHAIRMAN STRAIN: Aye. Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries. We are done. ***** Page 112 October 7, 2008 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 4:00 p.m. COLLIER COUNTY PLANNING COMMISSION MARKP. STRAIN, Chairman These minutes approved by the Board on as presented or as corrected , TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC. BY CHERIE' NOTTINGHAM Page 113