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BCC Minutes 11/10/1998 RNovember 10, 1998 Page TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, November 10, 1998 LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special districts as have been created according to law and having conducted business herein, met on this date at 9:00 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRPERSON: Barbara B. Berry Pamela S. Hac'Kie John C. Norris Timothy J. Constantine Timothy L. Hancock ALSO PRESENT: Robert Fernandez, County Administrator David Weigel, County Attorney Item #3A, B&C REGULAR AGENDA, CONSENT AGENDAAND SUMMARY AGENDA - APPROVED AND/OR ADOPTED WITH CHANGES CHAIRPERSON BERRY: Good morning. I'd like to call to order the November 10th meeting of the Collier County Board of Commissioners. We're pleased to have with us this morning the Reverend Jay Kowalski of the First United Methodist Church. If you'd rise for the invocation and remain standing for the Pledge of Allegiance. Reverend Kowalski. REVEREND KOWALSKI: Thank you. CHAIRPERSON BERRY: Good morning. REVEREND KOWALSKI: Join me in prayer. O, eternal and loving and gracious God, the giver and protector of families, we invite your presence here this day, and especially your Spirit, that you might bring us wisdom to make wise decisions, a spirit of justice to make fair decisions, and fill us with your love, that all that we do would give compassion to all involved. For we ask and give thanks in your loving name, Amen. (The Pledge of Allegiance was recited in unison.) CHAIRPERSON BERRY: Thank you, Reverend Kowalski. Mr. Fernandez, do we have any changes to our agenda this morning, please? MR. FERNANDEZ: Yes, we do, Madam Chairman. Good morning, commissioners. The first item is to add item 8(E)(2), which is a letter to the Sheriff, identifying changes to the fiscal year '99 budget request. This is as a response to the letter submitted to us by the Sheriff. We would like to withdraw item 13(A)(2). This is petition A-98-5, Southpointe Yacht Club at Windstar Marina. Appeal of a determination of insubstantial change to the Southpointe Yacht Club PUD master plan. This was withdrawn at the petitioner's request. COMHISSIONER MAC'KIE: Do you know any of the history behind that, Mr. Fernandez? MR. FERNANDEZ: Yes, I believe that we received a letter indicating that resolution had been reached. COMHISSIONER MAC'KIE: I was hoping that was why. Thanks. You can show that to me sometime. MR. FERNANDEZ: Okay. I have it here somewhere. Do you have a letter? MR. WEIGEL: Which one? MR. FERNANDEZ: Windstar, the resolution. MR. WEIGEL: No, I don't, not that I'm aware of. MR. FERNANDEZ: Yes, I have it. COMMISSIONER MAC'KIE: I don't have to have it right this sec. MR. FERNANDEZ: Okay, I can show you that letter. I have it here. The next is to withdraw item 17(E), petition AV 97-031 to disclaim, denounce (sic) and vacate the county's and the public's interest in a 60-foot wide right-of-way shown as Pelton Avenue on the plat of Burdale, as recorded. This is staff's request. I understand some additional work needs to be done on that one. Also, I would like to add item 8(B)(2). We'll be introducing our new director of public works engineering. Mr. Ilschner will make thatintroduction. Additional note. We've added some additional backup to your original packets. Item 16(C)(1), the attachment for the agreement was inadvertently omitted from the agenda package, and we have since provided that to the commissioners. I understand Mr. Weigel has a change. CHAIRPERSON BERRY: Okay. Mr. Weigel? MR. WEIGEL: Thank you. I would ask, commissioners, that 16(B)(2) be continued for two weeks. COMMISSIONER MAC'KIE: What is -- CHAIRPERSON BERRY: 16(B) (2). COMMISSIONER MAC'KIE: -- the reason? MR. WEIGEL: It's an impact fee issue with the City of Naples, and we want to review again the law with the staff and make sure that we're correct on what we're doing. COMMISSIONER MAC'KIE: Okay. Thank you. CHAIRPERSON BERRY: Okay. Commissioner Mac'Kie? COMMISSIONER MAC'KIE: No changes. CHAIRPERSON BERRY: Commissioner Norris? COMMISSIONER NORRIS: No additions, deletions or other changes. CHAIRPERSON BERRY: Commissioner Hancock? COMHISSIONER HANCOCK: Yes. I had mentioned, at least to the media, that I would try and bring back to this board some type of direction on the North Naples master plan. I have some preliminary work on that that I'd like to present to you today. It would take about five to 10 minutes. CHAIRPERSON BERRY: Okay. And where would you like to have that placed? COHHISSIONER HANCOCK: I guess I'd be -- if we're going to ask -- give staff direction, 10(B) would be an appropriate place. CHAIRPERSON BERRY: 10(B)? COHMISSIONER HANCOCK: Mr. Fernandez, would you concur with that? MR. FERNANDEZ: Okay. COHMISSIONER HANCOCK: And the only other matter is I will abstain from item 17(B) on the agenda. CHAIRPERSON BERRY: Okay. All right. And I have no changes to the agenda. COHMISSIONER NORRIS: I'll make a motion that we accept and approve the agenda and consent agenda and summary agenda with changes as noted. COHMISSIONER HANCOCK: Second. CHAIRPERSON BERRY: Okay, we have a motion and a second to approve the consent, the regular agenda and the summary agenda. All in favor? Opposed? (No response.) CHAIRPERSON BERRY: Motion carries four-zero. Item #4A HINUTES OF REGULAR HEETING OF OCTOBER 20, 1998 - APPROVED AS PRESENTED COHMISSIONER NORRIS: I'll make a motion that we approve the minutes of October 30th, 1998 regular meeting. CHAIRPERSON BERRY: How about October 20th? COHMISSIONER NORRIS: How about October 20th? COHMISSIONER HANCOCK: I'll second that. I wasn't going to second the first one. CHAIRPERSON BERRY: We have a motion and a second to accept the minutes of the October 20th meeting. All in favor? Opposed? (No response.) CHAIRPERSON BERRY: Motion carries five-zero. Item #5A1 PROCLAMATION PROCLAIMING NOVEMBER 22-29, 1998 AS TRADITIONAL FAMILY VALUES WEEK - ADOPTED Proclamations. This morning it's my pleasure to present a proclamation concerning Traditional Family Values Week. If I could have the Reverend Jane Wallace come forward. And I don't know if Reverend Mallory is here or not. He's not here, Jane? Good. If you'd come forward, please, please. Come up here and stand in front of us and turn around and face the camera. Reverend Kowalski, we're happy to have you come up here as well. I'm glad you're still here. COHMISSIONER NORRIS: Face the cameras. CHAIRPERSON BERRY: If you can turn around and the cameras will pick you up and people will see you out in TV land. As most people know, in two weeks we're going to be celebrating Thanksgiving, which is certainly a traditional occasion in our wonderful country. And in addition to that, some time back there was a resolution passed in Congress recognizing Traditional Family Values Week, and so to coincide with that, Collier County will be issuing this proclamation, as will the City of Naples at this time. This is the first time that this kind of a proclamation has been ordered. WHEREAS, to celebrate National Family Week, the Greater Naples Ministerial Association, in fellowship with the Collier County Evangelical Ministerial Association, proposes a celebration of November 22nd through the 29th, 1998, to be known as Traditional Family Values Week; and WHEREAS, the home is the cornerstone and foundation of our nation, and has become a threatened institution. Therefore, we suggest that residents of Collier County participate in the following family activities: On Sunday, worship as a family; Monday, family night; Tuesday, parent and those of you who have children in school, maybe consider going to school and having lunch with them; on Wednesday, family helping hands day, a great thing because that's the day before a big family reunion, in most cases; Thursday is family reunion day, and of course that is Thanksgiving; Friday, family outing day and family worship; Saturday, make a memory day, do something together, and also family worship; and Sunday, again, worship as a family. NOW THEREFORE, be it proclaimed by the Board of County Commissioners of Collier County, Florida, that November 22nd through the 29th, 1998 be designated as Traditional Family Values Week. Done and ordered this 10th day of November 1998, Board of County Commissioners, Barbara B. Berry, Chairman. At this time, I'd like to present this to Reverend Wallace, please. COHMISSIONER HANCOCK: Madam Chair? CHAIRPERSON BERRY: Oh, how about I would propose this, move this. COHMISSIONER HANCOCK: I'll second. CHAIRPERSON BERRY: We have a second. All in favor? Opposed? (No response.) CHAIRPERSON BERRY: Motion carries five-zero. (Applause.) REVEREND WALLACE: Thank you, Madam Chair, for all your hard work with this committee to formulate this document. We did this because Congress voted this proclamation to be held, given in 1970, and no one has ever done anything about it. It's just an attempt to try to bring to the attention of families today with young children and middle-aged children some of the things that have gone by the wayside with two working parents. And we hope that maybe this will give some people a means by which to make their family a little more cohesive. Thank you very much -- CHAIRPERSON BERRY: Thank you so much. REVEREND WALLACE: -- all of you. COHMISSIONER NORRIS: Thank you. Item #5A2 PROCLAMATION PROCLAIHING THE WEEK OF NOVEMBER 8-14, 1998 AS YOUTH APPRECIATION WEEK - ADOPTED CHAIRPERSON BERRY: And our second proclamation today. Commissioner Hac'Kie. COHMISSIONER HAC'KIE: I'm glad to get to read this proclamation today and to ask -- if I can find who's here from Optimist to come forward. Excuse me. Mr. Gerald Neff -- forgive me for not having that up -- from Naples Sunset Optimist Club. Again, if you wouldn't mind facing the camera while I read this proclamation. I have to tell you, I told my children about it and they -- it's Youth Appreciation Week, you guys, and they said, "Hom, does that mean we get out of our chores this week?" No. The proclamation reads: WHEREAS, the vast majority of youth are concerned, knowledgeable and responsible citizens; and WHEREAS, the accomplishments and achievements of these young citizens deserve the recognition and praise of their elders; and WHEREAS, Optimist International has, since 1954, developed and promoted a program entitled Youth Appreciation Week; and WHEREAS, the citizens of Naples, Florida, have indicated a desire to join the Sunset Optimists in expressing appreciation and approval of the contributions of our youth, NOW THEREFORE, be it proclaimed by the Board of County Commissioners of Collier County, Florida, that the week of November 8th through 14th, 1998 be designated as Youth Appreciation Week in Collier County. Done and ordered this 10th day of November, 1998, Board of County Commissioners, Barbara B. Berry, Chairman. And I'd like to move approval of this proclamation. COHMISSIONER NORRIS: Second. CHAIRPERSON BERRY: All in favor? Opposed? (No response.) CHAIRPERSON BERRY: (Applause.) Item #5C We have a motion and a second. Hotion carries five-zero. PRESENTATION OF PLAQUE OF APPREICATION TO COHMISSIONER HANCOCK BY CHAIRMAN BERRY CHAIRPERSON BERRY: And I have a presentation to make this morning. Commissioner Hancock, if you would stand up and come over here -- come over here by -- COHMISSIONER CONSTANTINE: Face the camera. COHMISSIONER HANCOCK: Will you saw the ball and chain from my ankle? CHAIRPERSON BERRY: -- by the chairman. Tim, we knew at some point in time, as will be for all of us, that this time would come, and I want to thank you personally for the time that you have given Collier County. To also thank your family, sharing you with the county to handle the business. So please extend our sincere thanks to Valetie and Julia. And Julia now gets her daddy back after four years. And you don't have to worry and she doesn't have to worry about reading any ugly things in the newspaper anymore about her daddy. At any rate, I would like to present this plaque to Tim on behalf of the Board of County Commissioners, and I'd like to read the inscription on this plaque. "In grateful appreciation to Timothy L. Hancock, Collier County Commissioner, for serving residents in District 2 and all citizens of Collier County from 1994 to 1998." And I'd like to read the following inscription. "It is not the critic that counts, nor the man who points out how the strongman stumbled or where the door of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat again and again, who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause, who at best knows the triumph of high achievement, and who, at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who know neither victory nor defeat." Presented this actually 10th day of November 1998, and signed by all of the Board of Commissioners. Thank you so much, Tim, for everything. (Applause.) CHAIRPERSON BERRY: I'd also like to add that Tim has left a mark on Collier County that will be seen and improved upon over many years in terms of the architectural standards, commercial architectural standards. This was something that was certainly needed in Collier County. Tim saw that need, and he, along with another individual, took that and ran with it and came up with an award-winning project which, if you read the papers recently, our neighbor to the north, LeeCounty, is looking at adopting something very similar to what -- Collier County. So I think that speaks very well of a commissioner and what he has made and the contribution he has made to his county. And I think at age 31, Tim, I think you've done an excellent job. COMMISSIONER MAC'KIE: Not bad. CHAIRPERSON BERRY: And I think this is -- there's a lot to be said. And again, thank you so much. COMMISSIONER HANCOCK: Thank you. And just very briefly, everyone should be as lucky in life to have been given the opportunity that I was here for four years. And I thank the people of Collier County for that, I thank my colleagues and our staff for making this probably the most enjoyable time of my life so far. And I look forward to working with all of you in different capacities in the future, and wish everyone the best. And again, thank you very much for the recognition and the appreciation. I don't know it's deserved, but I do thank you just the same. CHAIRPERSON BERRY: Thank you. COMMISSIONER MAC'KIE: Thanks, Tim. Item #SB1 AMENDMENT TO THE ORIGINAL DEVELOPER CONTRIBUTION AGREEMENT WITH LONG BAY PARTNERS FOR CONSTRUCTION OF LIVINGSTON ROAD NORTH OF IMMOKALEE ROAD, INCLUDING A SUPPLEMENTAL AGREEMENT WITH HOLE, HONTES & ASSOCIATES, INC. FOR ROADWAY DESIGN REVISIONS - STAFF RECOMMENDATION APPROVED WITH CHANGES CHAIRPERSON BERRY: All right, moving on then to our -- the rest of our regular agenda, item 8(B)(1). This is an amendment concerning Long Bay Partners in the construction of Livingston Road North. MR. RYZIW: Good morning, commissioners. For the record, Vlad Ryziw, and I represent your public works engineering department. The agenda item 8(B)(1) relates to the design and construction of your Livingston Road project, commencing at Immokalee Road and heading north approximately three miles to the Lee/Collier line. The purpose and the staff objective here this morning is to request and obtain the board approval to revise the design of Livingston Road from a rural section to an urban cross-section. Over the past 10 months there has been approximately six board actions on this particular project. The particular project is a public and private partnership between Collier County and Long Bay Partners, also known as Bonita Bay Properties. The staff agenda item has an attachment. It's an amendment to a developer contribution agreement that the board approved February 17th of this year. I wanted to go ahead and summarize the changes between the current amended agreement and the original agreement for Livingston Road. Due to the proposal to revise the cross-section from a rural highway to an urban cross-section, we would propose that the Collier County -- the board accept the cost of redesigning the project, approximately $197,500. So that's a change in the current agreement. The lengths of the Phase I and Phase II of the project have changed slightly. The total corridor length still stays the same at three miles. The primary item in the amended agreement states that the highway will become an urban highway instead of a rural highway. The urban highway has the features such as Airport Pulling Road with curb, drainage enclosures, sidewalks and so forth. Item number four in the amended agreement, important to the board, is that the developer, Long Bay Partners, would not seek any additional impact fee road credits. The original agreement had a ceiling of four million, 778 dollars and -- $4,778,300, so the amended agreement would not change the maximum road impact fee credits that the developer is requesting. In regard to the design costs, the developer will also share 50 percent of the design costs. Approximately $197,500. The amended agreement further states that the developer, Long Bay Partners, as a continuance of the public/private partnership, in fact is accepting approximately $537,500 additional cost burden above the February agreement with no request for additional road impact fee credits. The amended agreement also addresses costs that we expect to incur to relocate some Florida Power and Light transmission pole facilities, and the developer is working with staff to accept that cost as the design progresses. There's another item, number eight in the amended agreement, that refers to an opportunity for staff to reduce the right-of-way costs on the project from the current -- from the original corridor. We anticipate reducing the right-of-way in the north section of the project, and in order to have some equity in this proposal for right-of-way reduction, should there be a cost reduction in right-of-way, coupled with an increase in the construction cost above 120 percent, then the developer would request road impact fees equivalent to that cost reduction in right-of-way. And the last item that the amended agreement addresses is the opportunity for the developer working with staff and our engineers, when right-of-way permitting -- right-of-way and permitting is complete, they would like to have the opportunity to advance construction in the project and commence some land clearing and grubbing activities prior to final design. The staff -- the staff report consists of five distinct recommendations, and staff would like to amend the last recommendation number five with respect to the $197,500 cost assumption for redesign by LBP. The executive summary states that we would like to have the developer reimburse Collier County that cost within 30 days of today's board approval in this matter. For several reasons, staff is requesting a change to that recommendation and to have the developer pay the actual cost to design upon the completion of the design phase. And there are several reasons for that. Number one, I and my colleagues need to complete negotiations with our consultant, Hole, Montes and Associates. The 197,500 is an approximate cost based on a draft cost and scope proposal. Number two, at the completion of the design phase, we would be inbetter opportunity to account for the cash payment reimbursements by the developer. There would be two, one for the design phase of the project and one for the inspection of the project. Collier County will engage a consultant to inspect the project, and the developer will reimburse Collier County. So at the end of the design phase, we would have two opportunities to transact that cost for design as well as inspection fees. Another reason we would like to postpone that $197,500 reimbursement is to further address the final costs for utility design. In several weeks, the board will be presented with a separate agenda item for a separate developer contribution agreement to address the utility infrastructure on the project. And the fourth reason is, funds are available. We have funds in the project account to account for the entire design cost of approximately $395,000. I'd like to go ahead and conclude my briefing on this topic here and would request any questions by the board. CHAIRPERSON BERRY: Commissioner Constantine will be the first. COMHISSIONER CONSTANTINE: Total additional cost, if we make this change, is what? Including everybody's portion. MR. RYZIW: $537,500. $537,500 would be an additional cost that would be assumed by Long Bay Partners for no increase in road impact fees. Collier County's cost would be the approximate 50 percent of the design cost, $197,500. COMMISSIONER CONSTANTINE: And then that's -- you're talking strictly design there, correct? MR. RYZIW: In the case of Collier County, yes. COMMISSIONER CONSTANTINE: And then as far as any additional actual cost when you construct? MR. RYZIW: There would be no additional construction costs to Collier County. The original estimate for the rural highway approximates the estimated cost for construction of an urban highway. COMMISSIONER CONSTANTINE: We'll just use up the entire 20 percent cushion that we had there. While we could have potentially spent that before, we know we will spend that in this scenario? MR. RYZIW: Yes. The 20 percent cushion is allowable by ordinance, and the 20 percent cost overrun for construction relates to the rural cross-section and urban cross-section, so it's irrelevant, the type of highway. The county ordinance 92-22 allows that 20 percent overrun. COMHISSIONER CONSTANTINE: Of the one-half of the $537,000, from what source will that be paid for the redesign? MR. RYZIW: Road impact fee 331. That would be impact district one. COMHISSIONER CONSTANTINE: Thank you. CHAIRPERSON BERRY: Commissioner Hancock? COMHISSIONER HANCOCK: Mr. Ryziw, I think -- I don't think we got to this point by lack of negotiation on your part. I think you've done a good job. One of the important things that what this does for the countyis, as you will see a little bit later as I lay out some master plan concepts for the North Naples area, is that this road was going to be rural without sidewalks. Without the type of cross-section that's being proposed here, it would set a very, very different tone for future development in that area that I don't think will match what is going to occur or what could occur. So I think what we're seeing is an increase in quality, with that assumption being assumed financially by Long Bay Partners, which is a win-win for everybody. So I appreciate, Commissioner Constantine, your questions, because I think they're right on the mark. I think it's worth the exposure and additional cost to put a quality roadway in that area. COMMISSIONER MAC'KIE: Madam Chair? Just a ditto. The only thing that scared me is that the possibility existed that we were going to build a rural roadway section here. I had not realized that, frankly, in the agreement that we have with Long Bay Partners. COMMISSIONER CONSTANTINE: That sounds like three. Move the item. COMMISSIONER MAC'KIE: Yeah, well -- COMMISSIONER HANCOCK: Second. COMMISSIONER MAC'KIE: -- but I want to publicly thank them for that, for identifying it and solving a problem that would have been an embarrassment later and doing it at a half a million dollar expense to them with no impact fee credits. I move approval. CHAIRPERSON BERRY: We have a -- COMMISSIONER CONSTANTINE: Second. CHAIRPERSON BERRY: recommendation. All in favor? Opposed? (No response.) CHAIRPERSON BERRY: MR. RYZIW: Added -- motion and a second for approval of this Motion carries five-zero. Thank you. Thank you, commissioners. INTRODUCTION OF JEFF BIBBY, PUBLIC WORKS DIRECTOR CHAIRPERSON BERRY: The next item -- COMMISSIONER HANCOCK: One of the more -- CHAIRPERSON BERRY: -- Mr. Ilschner. COMMISSIONER HANCOCK: -- contentious items today. MR. ILSCHNER: Good morning, Madam Chairman. For the record, Ed Ilschner, public works administrator, Collier County. I appreciate this opportunity this morning to introduce to you an individual that I'm proud to bring on board as an employee of Collier County this morning, Mr. Jeff Bibby. Mr. Jeff Bibby is assuming duties as the director of the public works engineering department; comes to us from Connecticut, and has an extensive background in project management at the highest level. And you know you've done the right thing when you bring somebody on board and his superiors and his peers and his subordinates tell you he's an outstanding manager and an outstanding person. So I want to join you and welcome Jeff Bibby to Collier County this morning. Jeff, would you stand up, please? (Applause.) COMMISSIONER HANCOCK: Being from Connecticut, I don't assume the weather had anything to do with your decision? MR. BIBBY: Not a bit. COMMISSIONER CONSTANTINE: Yeah, I was going to say, Jeff, I'm a native New Englander myself and believe me, you're going to like it here a lot better, especially the next six months or so. MR. ILSCHNER: Thank you, Madam Chairman. CHAIRPERSON BERRY: Thank you. And our sincere welcome to Mr. Bibby. I hope you will enjoy your tenure in Collier County. Item #8C1 CONTRACT AMENDMENT FOR DESIGN SERVICES FOR THE NEW DOMESTIC ANIMAL SERVICES FACILITY - OPTION #2 APPROVED AS OUTLINED IN THE EXECUTIVE SUMMARY Moving on then to item 8(C), recommendation that the Board of County Commissioners authorize a contract for the design services for a new Domestic Animal Services facility. Good morning, Mr. Olliff. MR. OLLIFF: Good morning. For the record, Tom Olliff, public services administrator. The item in front of you is a little unusual in its nature in the fact that we would not normally be here in front of the board. But given the circumstances of this particular project, we felt it important that the board verify its continuing support and make some decisions about the financing of that future and proposed Domestic Animal Control facility. As the board's aware, the staff has been working for the better part of two and a half years on a huge Domestic Animal Control facility. The current location is on Davis Boulevard, on property that we were fortunate enough to have a local resident donate 10 acres to the county specifically for this purpose. The unfortunate situation of this particular project, as we stand here today, is that it is just frankly under-budgeted. The project was budgeted at 1.6 million dollars, and when the architect's certified estimate of cost came in, as you'll see in the executive summary, it actually came in at 3.4 million dollars, so it was significantly under-budgeted. We went through that process, which is now generally called value engineering, to try and basically cut the cost on the project. And I think in all frankness, we have cut as much as I can possibly cut and feel comfortable about continuing on with the project, in that we are now down to metal buildings; we have removed all of the underground plumbing associated with the kennel facilities; we've reduced the size of the kennels; we've actually reduced the size of the slabs surrounding the kennels. We've done everything that I think that we can do and bring the project in. COHMISSIONER CONSTANTINE: Quick question. One of the discussions we had when this site was debated was noise, and we were assured that the buildings would be designed to take care of noise. And if we're down to metal buildings, I wonder if we're not back to the problem we had up in your section, Pam. MR. OLLIFF: I don't think so. That was one of the things that, frankly, when we went through this, quote, unquote, value engineeringprocess, I recognized the board's interest in that, and mine as well, having to administer the department. If you're familiar with the dog kenneling facility in the Estates off of Oaks Boulevard? COHMISSIONER HANCOCK: I've seen it, but I haven't been -- MR. OLLIFF: It is actually in what is a fairly residential neighborhood. It is completely surrounded by residences. And the design of this building is very, very similar to that, in that it is completely enclosed with the exception of some exhaust fans to provide air flow through the building. There are no open air screens for air flow or noise to escape. So I think the architect that we've got is an architect who is familiar with and has done several animal control type facilities. And I think one of our biggest concerns was noise, and so I think that that's still been taken care of. COHMISSIONER CONSTANTINE: Thank you. COHMISSIONER HAC'KIE: Tom, I'm worried about that no air conditioning. Is that feasible in a metal building with animals? They're not going to die on us -- MR. OLLIFF: No, not -- COHMISSIONER HAC'KIE: -- suffer? MR. OLLIFF: -- only would -- no, not only would they not die, I think it's been designed with enough air flow that it would frankly be a very comfortable facility. COHMISSIONER HAC'KIE: Okay. MR. OLLIFF: And then generally, it's the same type -- again, the same type kennel facility that you'll see in several locations in this county and in other counties as well. So I think it's not something we're trying new for the first time, but it's something we know that does work. CHAIRPERSON BERRY: Okay. Commissioner Hancock? COHMISSIONER HANCOCK: Mr. Olliff, as I read the options, first of all, I don't think option three is even a consideration, which is to abandon the project. COHMISSIONER HAC'KIE: No. COHMISSIONER HANCOCK: We have a gift of $650,000 of land, a fantastic site for a new site. I think it's one or two. We need to find a way to make this happen and give that direction today. As I read the two, what we're really dealing with, correct me if I'm wrong, is about an $800,000 cost that would be assumed based on the phase-in of the project over two years; is that correct? So our decision today is whether or not -- as I see it, whether or not we have adequate funding to do it in a single phase project and save the taxpayer $800,000 versus a two-phase project and expend those additional funds. Am I making this too simple? MR. OLLIFF: A little bit. It's really a pay for it now or pay for it later kind of an issue for you. You can either pay for it and actually authorize a budget amendment to move the monies into this fiscal year's project budget, in which case we don't have to go out with a phased construction bid project. The other option is, the way it was originally proposed to you was a two-phased project over two fiscal years, where the county only budgets half of the money this year, half of the money next year, but you have to bid it that way. And generally when we've done that, we've found that construction bids account for that when they're submitted. So usually you're going to expect to get a little higher construction price because of its two-phased approach. COHMISSIONER HANCOCK: Thank you. CHAIRPERSON BERRY: Any other comments, questions? Do we have any public speakers on this item? MR. FERNANDEZ: Not on this item, Madam Chairman. CHAIRPERSON BERRY: Okay. COHMISSIONER HANCOCK: Madam Chair, I'm going to move option two, which would be to appropriate the additional funding in this fiscal year. Basically, we had budgeted in the out year for an additional recurring expense that would go away, so I think in the end, I think it will be an advantage to next year's budget process. COHMISSIONER NORRIS: I'm going to second that. I agree with that. CHAIRPERSON BERRY: Okay, we have a motion and a second. Any further discussion among the board? All in favor? Opposed? (No response.) CHAIRPERSON BERRY: Motion carries five-zero. Thank you very much. MR. OLLIFF: Thank you. Item #8El REGULAR BOARD OF COUNTY COHMISSION HEETINGS TO BE HELD ON THE SECOND AND FOURTH TUESDAYS OF EACH MONTH BEGINNING IN JANUARY , 1999 CHAIRPERSON BERRY: Item 8(E)(1), proposal for a change in the county commission meetings. Mr. Tindall, good morning. COHMISSIONER HANCOCK: I've got a lot of comments on this one. MR. TINDALL: Good morning, commissioners. For the record, Phil Tindall, assistant to the county administrator. What we're presenting to you today is a proposal that first and foremost we believe will enhance the quality of the staff representing to you at the regular board meetings, being that time is pretty much a rare commodity in terms of having enough of it. Because of the quality control effort and the amount of review required for executive summaries that are presented to you, we feel that spreading out the period of time in between the regular board meetings would give the staff the opportunity to place more attention to detail into the items that are presented before you. In addition, we believe it will free up more time for our senior staff to devote to operational and management issues, as well as provide more time for the board members to devote to issues related to their constituents. Obviously there -- we predict some cost savings, as well. If you have any questions, we're ready to answer whatever you mayhave. CHAIRPERSON BERRY: Any questions of Mr. Tindall? Commissioner Mac'Kie? COMMISSIONER MAC'KIE: I have one up front that I've already asked Mr. Fernandez, but it seems to me that people who are here for land use petitions would be worried about and that is what kind of a delay do you foresee might result from this for people who have land use petitions coming up every other -- would we be able to hear the same number of land use petitions as we currently are at the same rate, or will there be a delay? MR. TINDALL: The folks in planning services studied this very closely, when Mr. Fernandez asked staff to study this issue. They have concluded that with proper use of the consent and summary agendas, we should not anticipate an excessive amount of time for land use petitions. There may be some occasional extensions of the amount of time of the proceedings during board meetings, but we don't feel it would be excessive. COMMISSIONER CONSTANTINE: Commissioner Mac'Kie, the one thing -- Mr. Fernandez and I had talked about that same thing and we had some comfort that with the summary agenda, that thins out that calendar some. And secondly, if the board needs to stay a little later on the second -- we're only hearing them right now on the second and fourth Tuesdays anyway. So if we need to stay a little later, we stay later. COMMISSIONER MAC'KIE: I wanted just to be sure that the message was delivered to staff that, you know, we don't mind staying later, that we want to -- we don't want -- if we try this, we don't want it to be at -- you know, to somebody's detriment. We're willing to stay past 10:00 at night, whatever it takes. I just wondered what they'd say. COMMISSIONER CONSTANTINE: I'm okay with that. I come alive about midnight. COMMISSIONER NORRIS: That's strange that you say that, because actually we're sick of staying here 'til noon. Isn't that true? COMMISSIONER HANCOCK: Madam Chair. CHAIRPERSON BERRY: Commissioner Hancock? COMMISSIONER HANCOCK: If you're going to proceed with this, after serving four years on this board, I would suggest you make a mandatory dinner break, because we get grumpy if we don't eat up here. COMMISSIONER CONSTANTINE: That low blood sugar. COMMISSIONER HANCOCK: You're going to have to have mandatory snacks or something. CHAIRPERSON BERRY: As long as I'm on the board, don't worry about the food, Commissioner. COMMISSIONER HANCOCK: All right. CHAIRPERSON BERRY: We'll take care of that. COMMISSIONER HANCOCK: I think this is something that I think you all realize the load outside of Tuesdays continues to get larger and larger as our population grows, and if it gives you more time and the ability to deal with those district and county-wide issues more freely and doesn't jeopardize the applicants that come through this process,then I think it's -- it makes sense for everybody. I think it's a good proposal. The good news is, if you try it and it doesn't seem to work, you can always go back -- CHAIRPERSON BERRY: That's right. COHMISSIONER HANCOCK: -- but I think it's worth -- it's worth looking at it. COHMISSIONER HAC'KIE: In the -- CHAIRPERSON BERRY: Do we have public speakers? MR. FERNANDEZ: Yes, Madam Chairman. You have one speaker, Mr. Ty Agoston. CHAIRPERSON BERRY: Good. COHMISSIONER HAC'KIE: I bet Ty's going to say less government is good. You'd like us just to meet once a month, wouldn't you, Ty? MR. AGOSTON: Morning, ladies and gentlemen, my name is Ty Agoston. I'm in that less attractive Golden Gate Estates, and I'm speaking for myself. There are some questions I have regarding this proposal. Government is not held in a very high esteem today, and I'm just curious what kind of a message you're sending to your constituents. Most of it is regarding to your own standing. Is this job a part-time job? Are you going to reduce the access of the public to you? Are you going to take a salary cut? It's kind of curious, because if I wanted to make a presentation to you, now I have to wait twice as long? I'm not about to, but be as it may, how does it really come across to your constituents? Are you that busy? I mean, sometimes you break here at noon. COHMISSIONER HAC'KIE: Ty, it's got to be a part-time job if the people who work for us make twice as much as we make. How's that for an answer? MR. AGOSTON: I have -- look, I think you guys should be making a quarter of a million dollars. That's my personal opinion. COHMISSIONER HAC'KIE: You don't mind writing that check? COHMISSIONER NORRIS: Move his motion. MR. AGOSTON: No, I am not going to write the check, but -- CHAIRPERSON BERRY: You heard it here. MR. AGOSTON: -- the fact of the matter is, is that I think that the country routinely takes advantage of the public servants. They do not pay them sufficiently. They want more for less, so to speak. I'm in the private industry. Even you yourselves are paying your essential underlings just the way you say, twice as much as you make. I mean, that doesn't happen in the private industry. COHMISSIONER HANCOCK: Ty, I think what you raise is going to be interesting editorial fodder, but the truth is that what this does is it gives greater efficiency to the staff. When we look at just Ms. Filson, for example, the time she spends each and every week preparing for this agenda on Tuesday -- and this is an example because it's within our own office, we see it every day. That will be -- it will be a little less than half. It will be cut in almost one-half by doing this, freeing her up to do other things. Now, her job is to work for the county commission. I can onlyimagine what this would do for people like Mr. Olliff, Mr. Cautero and Mr. Ilschner who spend every Tuesday until we're done in this room, when they could be out serving everyone -- our constituents, their constituents and whatnot. So it's not so much I think about the five people up here as it is about the 900 people that work for county government, about the 12 or 15 division administrators and mid-management people that every week have a recurring loss time that they're not using to serve the public, and instead are serving the preparation of this agenda; about freeing those people to do their work. And I know that won't necessarily be the perception from the talking heads' side, but I've seen it enough to know that it's probably a very valid approach and one I think again deserves consideration. And like most decisions, if it doesn't work, it can be changed. MR. AGOSTON: I -- COHMISSIONER HANCOCK: I think you raise an excellent point, but I really think we need to look at it from the staff time, because that's what is actually being saved here, not necessarily -- these five people will sit up here every minute as long as they used to. It will just be on two days instead of four. MR. AGOSTON: Well, you know, I agree with you in some aspects, Tim. I'll be honest with you, though, I consider your guys' time a hell of a lot more valuable than your staff's time. You have over 1,000 people working for you. One more or less doesn't seem to make a hell of a difference with the budget you are running. And the fact of the matter is that if you can convince your constituents that you're doing a good job, I think that's more important than what Mr. Olliff or the gentlemen on the front row are sitting here -- COHMISSIONER HANCOCK: I obviously was unable to do that, Ty, but there's -- you know. MR. AGOSTON: But you know what I'm saying, I don't consider that to be a major issue. I'm sure they can hire an extra secretary or an extra assistant or what have you. I just wanted to raise the point. Obviously the decision is in your hand. But I honestly believe that this is not an actual good message to send to the public. Thank you very much. COHMISSIONER CONSTANTINE: Madam Chairman, if I can, Ty, first, you may think that our staff's time isn't worth a whole lot. Frankly, without them doing what they do, these Tuesday meetings wouldn't be worth a whole lot. Their time is very, very valuable, and they're the ones that make the day-to-day activity in the county take place. Second, this isn't a part-time job. I don't think any of the five people here -- COHMISSIONER HAC'KIE: Just pays like one. COHMISSIONER CONSTANTINE: -- just show up on Tuesdays. And the mistake in your logic there is that if we only meet every other Tuesday, then these five people are only working twice a month. And while we may only sit at this dais twice a month, I work five or sixdays a week at this job, and I think the other four do, as well. And so this is a -- this is a portion -- and it may be a perception, and so perhaps my comments can help correct that perception, because this is certainly not the only time we work. And as far as concerns, I hope that you and -- I know you don't wait until Tuesday if you have a concern to either call me or the other commissioners or stop in the office, and the public can do the same. So Commissioner Hancock covered the point I was going to make, but I'll just reemphasize. From our staff's points, we meet Tuesdays, and the last few Tuesdays have been all day Tuesdays; and Wednesday morning, Mr. Fernandez meets with his staff and starts talking about next week's agenda. And then Wednesday afternoon he meets with me and talks about next week's agenda. Thursday it's printed and we're off to the races again for next Tuesday's meeting. And there is literally no time in there to do anything other than agenda to agenda to agenda. And so I think what you will see as a result of this is a more efficient local government. CHAIRPERSON BERRY: Well, I think -- and then put on top of that, when we sit up here and we give additional -- the staff may know what they're planning, say, for next week's meeting, but then we sit up here and we have an item that comes before us and we say we either need some more information or we're going to continue it for a week, which means then this throws them into a whole different pattern, and they've got to get that information ready to go onto the agenda and printed, ready for it to come back to us. Because that agenda comes out to us on Thursdays. And the turnaround time, we can give direction here on Tuesday. That means Ms. Filson and a lot of other people are scurrying to try and get information and staff trying to get the information back and ready to go back for us for the following week. Talk about efficiency. I'm not sure this is very efficient at all. And I'm hoping that -- you know, sometimes we get a little upset with staff in terms of maybe completeness of a report or completeness of information. This should provide for them a little more time to prepare that information for us. And again, it's a proposal. I think it's worth trying, and if it doesn't work, we can always go back. As Commissioner Hancock said, we can change it. But I think it's worth giving it a try. I'd like -- I for one would like to see it tried. Other governmental bodies, you've got a county school board that operates, they have two meetings a week. That doesn't mean that we're not working the rest of the time. Anyone is welcome to come down and sit with me and follow me around and talk on the phone and listen to my conversations. I assure you, I'm not sitting on my hands the rest of the time. And not only that, it doesn't stop when I leave this office, it continues on at home. So I just -- if people think that we just show up here on Tuesday and then we go home and then we go out and do nothing and I go shopping the rest of the week, you better talk to myhusband. He's getting a little tired of eating out, because Barb isn't cooking much anymore. COMMISSIONER NORRIS: Well, I think it's pretty obvious that we spend a lot of time outside of the meetings servicing our constituents and going to constituent meetings and things like that. I think the fact that the Tuesday meetings are a small part of our work routine is borne out by the fact that so many of our meetings are done by noon. That means that they take -- two to three hours is a fairly typical meeting. Sometimes we go 'til 2:00 or 3:00, and then sometimes, on a rare occasion, we go later. But I think the point is that if you have a three-hour meeting coming up, do you need a whole day for that or can you do -- in two weeks can you do two three-hour meetings and make it a six-hour meeting, which is more like a regular work day? And then you don't have all these expensive staff members sitting in this room every day not getting anything accomplished. So I think it's a good idea and I'll make a motion to approve. CHAIRPERSON BERRY: Okay. We have a motion. Do I have a second? COMMISSIONER HANCOCK: Before seconding the motion -- I'm sure there will be one, if it's not me -- but I wanted to ask, has the development services advisory committee been asked about this change? The reason I ask is DSAC is a pretty good representation of people who bring applications before this board, and so I'm curious as to whether or not they have an opinion on this. My perception is that it doesn't affect those applications, but someone who doesn't do it on a regular basis, I'm rather curious about that. MR. CAUTERO: Vince Cautero, for the record, community development, environmental services administrator. We didn't consult with them. A lot of the applications -- or excuse me, a lot of the ordinance amendments that they would review would normally go to the Planning Commission; and other ordinance amendments that they would take to you, we're going to be using the summary agenda for building code amendments. Items that would come to you without summary agenda are few and far between, like fee schedule amendments. And I don't think that would alter or change your twice a month schedule on second and fourth. No, we did not consult with them. We didn't feel that we needed to. COHMISSIONER HANCOCK: Well, I think it's worth trying. I'll second the motion. CHAIRPERSON BERRY: Okay. COHMISSIONER HAC'KIE: Just -- and I'm going to support it, too, just with -- just let's try it. And if, Ty, others and you and if people will communicate with us if it's not working, that's the most important thing. If it's not working, please let us know. We want to know that. CHAIRPERSON BERRY: Well, I think an important thing to remember, too, is what's the purpose of the Tuesday meetings? What is our purpose in being up here? And the purpose of these meetings is to conduct the business of Collier County. It's the only time that fivepeople, as commissioners, that we have the opportunity to sit up here and conduct the business. That's what this meeting's about. If -- I'm going to say this, and I know it's probably going to be criticized. This isn't for your entertainment, okay? COHMISSIONER HAC'KIE: Thank God. CHAIRPERSON BERRY: This isn't for your entertainment. COHMISSIONER CONSTANTINE: It's only a coincidence that it's entertaining. CHAIRPERSON BERRY: This is the only opportunity that we can do this and sit up here. And when we don't sit up here, we don't have, quote -- everybody says we have all this power. We don't have any power. The only time we have any power is when the five of us sit up here as a commission. That's it. When I walk off here and go back into the office, I'm just a commissioner from a particular district working for all of Collier County. But I don't tell everybody what to do. I mean, that's a big misconception that commissioners go out and they tell Mr. Tindall what he's supposed to do and Mr. Cautero and Mr. Ilschner. We don't do that. COHMISSIONER HAC'KIE: And if we do, we go to jail. CHAIRPERSON BERRY: We may -- if we do, we can go to jail. COHMISSIONER HAC'KIE: We go to jail for that. CHAIRPERSON BERRY: People don't understand that. I get a phone call and they say, but you're the commissioner, you can do this. No, I can't. I don't have that authority. COHMISSIONER HAC'KIE: He can. CHAIRPERSON BERRY: But I can talk to Mr. Fernandez and relay that to him and then he can talk and they can work out however it's supposed to be dealt with. But many people misunderstand this. But this is not entertainment time in Collier County on Tuesday morning. This is the only opportunity we have to do this business. So I wish people would understand that more fully. At any rate, we have a motion and a second. All in favor? Opposed? (No response.) CHAIRPERSON BERRY: Motion carries five-zero. MR. TINDALL: Thank you, commissioners. CHAIRPERSON BERRY: Thank you. Item #8E2 APPROVAL TO TRANSMIT LETTER TO SHERIFF IDENTIFYING CHANGES TO THE FY 99 BUDGET REQUEST Item 8(E)(2). This is a letter to the Sheriff identifying changes to the fiscal year budget -- '99 budget request. Good morning, Mr. Smykowski. MR. SHYKOWSKI: Good morning, commissioners. For the record, Michael Smykowski, OHB director. Chapter 30.49 of Florida Statutes provides latitude for the board to make changes to the sheriff's proposed budget and adopt and approve that budget with those changes incorporated. The Statute also, though, further requires that the board give written notice of its action to the Sheriff and specify in the noticewhich specific items had been amended, modified, increased or reduced. COHMISSIONER HAC'KIE: Mike, this is basically as a precursor to a potential appeal to the Governor and Cabinet? Because we've never done this before. MR. SHYKOWSKI: We have never done this before. This is the first step officially in the process. The Sheriff, though -- this does not mean officially that he is going to appeal. He has 30 days upon receipt of this letter in which to file a petition for appeal to the administration commission in Tallahassee. COHMISSIONER HAC'KIE: I just wanted to get the framework. MR. SHYKOWSKI: On October 15th, the Sheriff did send the letter. It's included on page four of your executive summary to Commissioner Berry, formally requesting the following two pieces of information: The final authorized sheriff's budget amount for fiscal year 1999, and the specific items amended, modified, increased or reduced from the original request. The Statute does require the board to provide this information in writing. It does speak of the board as a collective body that the board shall provide. As such, the county attorney recommended that the response letter should be presented to the full board for their review and approval, rather than just a memorandum from the chairman of the board. A draft response is provided in the agenda package, pages five through eight for the board's consideration. And it does walk through what the initial Sheriff's budget request was as of Hay 1st that he certified to the Board of County Commissioners, and identifies all of the changes that have taken place. What we'd be looking for today is for the board to review the letter and authorize -- COMMISSIONER CONSTANTINE: This seems to be consistent with what we've said. We didn't intend for him to cut the 17 additional positions -- COMMISSIONER MAC'KIE: Right. COMMISSIONER CONSTANTINE: -- just because Marco has decided they don't want to pay their fair share. The intent was if Marco's not paying, then they need to get a minimal level of services. This appears to be completely consistent with that. CHAIRPERSON BERRY: Commissioner Hancock? COMMISSIONER HANCOCK: One concern, and I'm not sure the best way to address this, is in the past the board has taken a position that, you know, Sheriff, we're not going to tell you how best to spend the money to provide law enforcement. Now we're being asked to be in the opposite position, which is to be extremely specific on how each dollar allocated must be spent. This is a significant change in the way that we have done things, and my concern is if we are setting a stage for the Sheriff to either go to the governor and appeal the increase that he received or not, that's a different process than we went through in the budget process. If that's the case, then we need to designate Mr. Fernandez as the individual to tear that budget through the -- through OMB, to tearthat budget apart and rebuild it and find out where desk sets are being purchased. Commissioner Constantine one year had a stack of expenses within the sheriff's office that -- and I don't know what they were, I just -- I remember seeing it here. You know, that would require us going back and basically doing his entire budget for him and finding where we can remove that million dollars. And that's very, very different than what we've done in the past. My question is, if we don't do that, are we failing in our responsibility under state statute if we do not itemize that? MR. FERNANDEZ: Madam Chairman, this is a difficult question to answer because, as I said before, the approach that you've taken with the Sheriff's budget is typical of how counties have always dealt with that. They've said that the sheriff is an elected official, it's not the province of the Board of County Commissioners to tell the Sheriff specifically how the money should be spent. However, in the appeal process the board is asked specifically what did the Sheriff propose that the board didn't fund, essentially. And it's very difficult for the board to answer that question without having done a pretty detailed review of the budget. COMMISSIONER HANCOCK: Or having a budget itemized down to the last penny on every expenditure. I mean, we don't have an itemized accounting of every dollar that's spent in the sheriff's office; how many gun belts. I mean, you know, we don't have that itemized accounting. So for us to go in and say here are the specific line items to be removed, we're being asked to remove them by category, and there are only a handful of categories, and I don't think that's fair. COMMISSIONER CONSTANTINE: I think the letter, though -- I understand your point, and particularly long term, when we look at each budget from here on in, perhaps we're going to have to go through a more cumbersome process and look in more detail. But for purposes of the budget that's already been passed, this really seems to hit the nail on the head, and that is almost a three million dollar reduction in reserves because we deal with that in a particular way, and it outlines that. And dealing with attrition, we've set that policy for the last two or three years, and it specifically lays that out. I think each of these are going to be very, very difficult to argue with. And my hope is the sheriff will not go to Tallahassee, but if he does, we have a very, very strong case on each of these. COHMISSIONER HAC'KIE: And the bottom line is, this is the truth. This is the answer to the question as posed this year. COHMISSIONER HANCOCK: Right. COHMISSIONER HAC'KIE: It may mean that we should do it differently in the future if we're going to have to potentially deal with that, but this is the true answer to the question from the way that we address the budget this year. COHMISSIONER HANCOCK: I don't disagree with that at all. My question was one of whether or not we need to direct Mr. Fernandez tobegin looking in a more detailed level at his budget, either currently or through the next budget process. And something he can answer later, but I just wanted to raise the issue -- COMMISSIONER MAC'KIE: It's a good point. COMMISSIONER HANCOCK: -- because we may have to look at the sheriff's budget entirely differently in the future than we have in the past. COMMISSIONER MAC'KIE: Actually, Mr. Fernandez raised that with me this year as we were going through the budget -- COMMISSIONER HANCOCK: Okay. COMMISSIONER MAC'KIE: -- process that, you know, we may have to be more detailed as we go through this in the future. Because frankly, we do have this oversight, as this statute brings to our attention. But based on our discussions in this year's budget -- I don't know if we need a motion to approve this letter, Madam Chair? Is that how you want to do this? CHAIRPERSON BERRY: Whatever would be best. COMMISSIONER CONSTANTINE: I'll second that. COMMISSIONER HANCOCK: The motion is authorize chairman's signature of transmittal? COMMISSIONER MAC'KIE: That's the one. COMMISSIONER NORRIS: Speakers? MR. FERNANDEZ: None. CHAIRPERSON BERRY: No speakers? Okay, we have a motion and a second to go ahead and transmit this letter. All in favor? Opposed? (No response.) CHAIRPERSON BERRY: Motion carries five-zero. MR. SMYKOWSKI: Thank you. COMMISSIONER CONSTANTINE: This is good timing. Mr. Fernandez was at the Golden Gate Civic Association last night and they had raised the question, and the gentleman in charge of the substation, Pat Mullet, was there as well and said, you know, "Boy, we're not getting our additional five deputies because Marco didn't pay up." And Bob immediately said, "Wait a minute, that's not the direction of the board. The board is .... and it's outlined in this letter, so this should drive the point home. MR. FERNANDEZ: Thank you. Madam Chairman? CHAIRPERSON BERRY: Yes. ADDITIONAL VOTE ON SUMMARY AGENDA HR. FERNANDEZ: Before we take the next item, Hr. Weigel has asked that we review an action that was taken to approve the summary agenda. Commissioner Hancock abstained from that vote, but it included an item that required a four-fifths vote. And because Mr. Constantine was not in attendance at that point of our meeting, it causes problems, so -- CHAIRPERSON BERRY: Let's -- COHMISSIONER HAC'KIE: What's the item number? CHAIRPERSON BERRY: This was 17 -- MR. WEIGEL: 17(B). Mr. Hancock abstained, which the record reflects. It is a fezone from estates to PUD. Cambridge is the name, I think. COHMISSIONER HAC'KIE: Can we just take a separate motion? I'll approve -- I'll move approval -- MR. WEIGEL: You need to -- COHMISSIONER HAC'KIE: -- of 17(A). MR. WEIGEL: -- for purposes of the record, I think you need to open the public hearing and then take your vote, again with Mr. Hancock abstaining. Therefore, we could achieve the four-oh vote, if all four do vote. COHMISSIONER CONSTANTINE: Quick question. And I don't mind revisiting it, but it doesn't require four votes, it requires a super majority of -- COHMISSIONER HAC'KIE: No, no, no. COHMISSIONER CONSTANTINE: -- those present. MR. WEIGEL: No. COHMISSIONER CONSTANTINE: Is that -- I mean, we went through that question a couple years ago and maybe I'm remembering it wrong, but I don't mind revisiting it, just so if we -- MR. WEIGEL: I think that the requirement is that it's a four-fifths vote. Because we've run into some quorum problems in the past where it's not mere super majority of those that are present as a quorum. CHAIRPERSON BERRY: The attorneys in the room are all nodding in agreement with Mr. Weigel. MR. WEIGEL: Thank you. COHMISSIONER HAC'KIE: So you're going to reopen the public hearing? CHAIRPERSON BERRY: So I will reopen the public hearing -- MR. WEIGEL: 17(B). CHAIRPERSON BERRY: -- for item 17(B). COHMISSIONER HANCOCK: Of which I'll state -- COHMISSIONER HAC'KIE: And I make approval of -- CHAIRPERSON BERRY: Wait a minute. Let's -- you want to state your -- COHMISSIONER HANCOCK: Which I'll state for the record I must abstain from 17(B). COHMISSIONER HAC'KIE: And then I'll move approval of 17(B). MR. WEIGEL: And close the public hearing. CHAIRPERSON BERRY: I'll now close the public hearing. COHMISSIONER HAC'KIE: I'm not doing it now. I'll move approval of 17(B). COHMISSIONER NORRIS: Second. CHAIRPERSON BERRY: Okay, we have a motion and a second to approve item 17(B). All in favor? Opposed? (No response.) CHAIRPERSON BERRY: Motion carries four-zero. COMHISSIONER HANCOCK: Madam Chair -- MR. WEIGEL: That is correct. COMHISSIONER HANCOCK: -- obviously I have to fill out the appropriate forms, but just to be clear, obviously, I need a job in a week, and some of the discussions I've had with some companies may be doing work for that project, and I just want -- and just want to be extremely careful not to jeopardize, you know, that project or myself personally. And that's the reason for the abstention. Thank you. CHAIRPERSON BERRY: No problem. Okay, Madam Court Reporter, how are you doing? THE COURT REPORTER: Fine, thank you. CHAIRPERSON BERRY: This next item may be a lengthy item. COMMISSIONER NORRIS: Take a break. COMMISSIONER CONSTANTINE: Can we take a break? CHAIRPERSON BERRY: We'll take a break, if you want to hang in there for another 15, 20 minutes, and then we'll -- okay. Item #10A REPORT REGARDING THE STATUS OF THE LELY GUARDHOUSE CONTROVERSY - AGREEMENT APPROVED WITH CHANGES COMMISSIONER HANCOCK: Madam Chair, I think I can be assistance to the county attorney. I think I can kind of present this in that time frame -- CHAIRPERSON BERRY: Okay. COMMISSIONER HANCOCK: -- and then maybe go to comment after a break, if that would be appropriate. CHAIRPERSON BERRY: That would be fine. Let's do that. You go ahead and make the presentation and then we'll go from there. COMMISSIONER HANCOCK: The reason this is on the agenda today is when the Board of Commissioners on a three-two vote directed our county attorney staff to pursue an appeal of the Code Enforcement Board's decision regarding the location of the Lely guardhouse, there was also with that direction a -- an element that was -- that for me, as a representative of the board, if I could find a balance that was amenable to everyone and all parties involved, to try to do that and bring it back to the board, recognizing at that time I felt the extreme potential for cost of litigation in this matter. I have worked on that since that time. This being my last full board meeting, I felt that it was appropriate to bring it back to you, to give you the status of that, give you where we are, and ask for board direction on what is currently a proposal that the homeowners' association has agreed to and has been transmitted to the Attorney General's Office. You have in your packet a step by step, starting on March 27th of 1997, of how things have occurred since then. I'm not going to go down that and list all those things, but let me hit a couple of highlights for you. Initially in working with representatives of the homeowners association, Mr. Batty DeNicola, Mr. Gary Kinsella, we tried to find some middle ground on issues that had been raised. And our intent was to bring that to the Board of County Commissioners. If the commissioners agreed with it, then we would then transmit it to the state and request their review and approval. We received -- there's really no better word for it -- an admonishment from a representative of the State Attorney General's Office quote, unquote, excluded from discussions. And I want to clarify that now. There was never an exclusion. Our goal was to see if there was something the Board of Commissioners was agreeable to, and if so, we would then transmit it to the state for their comment. We were told they wanted to be involved in it every step of the way before it came to the Board of County Commissioners. Once we were made aware of that interest, that interest was accommodated each and every step from that point forward. There were occasional discussions that did occur between the homeowners and myself, between residents and myself, that did not involve the Attorney General. But every time there was a, if you will, a draft proposal, it was transmitted to the Attorney General's Office. We also received requests for information from the Attorney General, and the homeowners' association, at their expense, provided that information and copied our office on it. What we came to was at one point several months ago we were really coming down to a single issue of whether to dismiss with or without prejudice. Many of the issues raised by the Attorney General's Office were being answered in part or in whole by the homeowners' association in what appeared to be a satisfactory manner. The surprise came when we received a letter from Attorney General Butterworth, indicating that his main contention still exists to be the location of the guardhouse. To that point in all of our discussions -- and I had been told on the phone by representatives of the attorney general's office, that the Attorney General is willing to concede the location of the guardhouse but they needed agreement on all of the other matters. To get the letter from the Attorney General that really kind of did a 180 and said that no, the real issue is the location of the guardhouse in the middle of the road was a surprise to me, and really indicated to me that we had more or less wasted several months of effort in trying to resolve this matter, only to have the rug half pulled out from under us. That being said, I felt it was my responsibility to bring to this board the agreement that the homeowners' association has approved, that, in my opinion -- and I think as you read through the staff report you will see -- addresses each and every issue raised by the Attorney General's Office with one ex -- two exceptions. Satisfactorily with two exceptions. One is dismissing with or without prejudice. If you're going to dismiss with prejudice, what's the point of an agreement? If anyone can come back and sue on that matter at any given time in the future, there simply is no point to have an agreement. So to me that's an unreasonable demand. The second and the last one was now all of a sudden the issue of the guardhouse seems to be the focal point of where it sits, whetherit's in the center of the road or on the right-hand side of the road. I think we've all been contacted by everyone, but I want to ask you individually, over the last two and a half to up to three years, have you received letters of people that have been denied access to the park or been troubled with access to the park in the last two and a half years? COMMISSIONER MAC'KIE: I have not. COMMISSIONER HANCOCK: Has anyone on this board received one? COMMISSIONER CONSTANTINE: No. CHAIRPERSON BERRY: I don't think so. COMMISSIONER NORRIS: In the last two and a half years, no. COMMISSIONER HANCOCK: Whenever -- CHAIRPERSON BERRY: I don't think so. COMMISSIONER HANCOCK: -- and the reason I ask is there was a time when the operation of that gatehouse in its location -- and it's not its location but the operation of the gatehouse -- did provide with conflicts of people trying to access that park. I think to say that there wasn't would simply be a lie. There was. There have been. But in the past couple of years, the manner in which that gatehouse has been operated has provided zero letters to my office, and from what I understand, at least to my recollection, none to you. But every time this issue raises its head, the letters start coming in again. And I think that what it shows is there is not an access issue at Lely Barefoot Beach at that preserve. And to further show that, the Department of Environmental Protection sent down a management team to look at operation of that state park. In doing so, they produced a report that covered several issues. One of them was access. They saw no problems. This is the Department of Environmental Protection, their team, saw no problems with access to Barefoot Beach Preserve. The Cabinet later attached a caveat to that report that said this does not affect the current litigation. In other words, they kept that from being used to say well, you know, how can we go to litigation when the DEP's own management team has seen no access issues. So the Cabinet later attached a caveat to that. And I think it's important that that was not initially a part of the report. That is where we are today. What I would like to do -- and if I could get assistance from Mr. Manalich -- Ramiro and Dave have been in a very unusual position here, and I've tried to shoulder the burden of most of what was being developed for the simple reason that they have been directed by a majority of this board to pursue the legal action, the appeal. They have done that. That although there has been several delays along the way, each time we thought we were close to something, we would agree to a delay, those delays have ended. So I don't want anyone to feel that the county attorney's office has not fulfilled their responsibility and direction of this board. However, I think that if there is -- this agreement is acceptable to a majority of this board, that legal action can still be avoided to the tune of an expense to the taxpayers of well over a quarter milliondollars. What I'd like you to do, Mr. Manalich, if you would for me, the issues within the agreement that have been resolved, I just kind of want you there, because if I misspeak slightly on one -- and the property owners may also -- their representative may want to be at the ready, too, because I'd like to talk to you about how some of these issues were resolved. How they were raised and how they were resolved. When we met with Ms. Diana Sawaya-Crane and Mr. Mitch Burnstein of the Attorney General's Office, they basically issued a laundry list of things that they felt needed to be addressed in order to move on. At the time, the homeowners were offering to pay for one half of the salary of a ranger to be posted at the front of the park as an informational point. Not as a restriction but as an informational point. The Attorney General's Office did not agree with that, and as a result, the homeowners have agreed to an electronic sign that would indicate the status of the parking and the distance to the parking area to be posted at the front. No rangers -- CHAIRPERSON BERRY: This is at the -- as you come off of Bonita Beach Road -- COMMISSIONER HANCOCK: As you come off Bonita Beach Road. CHAIRPERSON BERRY: -- turn in? COMMISSIONER HANCOCK: Correct. So it would tell you what the status is of the parking. However, in no way would it give authorization to anyone, any way, shape or form, to restrict access. In other words, even if it says parking lot full, people still can proceed to the park. They could not and would not be stopped. So I felt that was resolved. The second issue was the existence of the gate arms. The fact that when you pull in, there's a structure in the center of the road, but there are gate arms, and that those may be imposing to individuals. Ultimately, the property owners agreed to every morning remove the gate arms, so when you pull in, there would be no visible gate arms. They offered to visually or landscape screen them at first so they wouldn't have to actually remove them. The representatives from the Attorney General's Office did not agree to that. They didn't want them screened, they wanted them removed. Ultimately, the homeowners agreed to physically remove, every morning during park hours, the gate arms . So now when you turn in, there's clear signage telling you the direction to the park and parking status. There is a structure in the center of the road and there are no gate arms visible. Beyond that, the roadway has recently been repaved and repaired. And I think this is important, because a lot of people don't realize the responsibility for maintenance of that roadway falls to the homeowners' association, not to Collier County. The reason that is, is because Collier County does not own the road. It is not legally a public roadway. It is a private roadway with a public access easement, which means during certain hours thepublic has access and rights of that road; at other hours they do not. The maintenance of that road falls and has fallen 100 percent to the residents of Lely Barefoot Beach. For us, that's probably a pretty good deal. For them, it's probably not. But that's how it was structured and that's where we're stuck -- where they're stuck, excuse me. Mr. Manalich, are there major points, in your opinion, in the agreement that we've discussed and I've left out at this point? MR. MANALICH: Well, I think the only other significant provisions that have evolved is that there's no longer a reference to a park ranger being required at the guardhouse, and also, there was a -- at one time there was a provision about parking spaces -- COMMISSIONER HANCOCK: Thank you. MR. MANALICH: -- that was removed. COMMISSIONER HANCOCK: There -- what the homeowners' association was -- had a concern about at one point was that there would be an expediential expansion of the parking at the end, and without them being notified or being given opportunity to comment on that. So what they were looking to do is lock in the existing number of parking spaces which, by the way, exceeds the number that is set by the state. There's some there of 100 spaces in addition to the number that was set by the state, and included in the agreement between the state and Collier County. That gave cause for concern for people who felt that the homeowners were trying to control the future access and use of the park. In the end, the association also agreed to simply remove that section with no reference to parking whatsoever, numbers or whatnot. Another item is -- and this one is one that I thought was reasonable -- was they simply asked for 24-hour notification of any events that require after-hours use of the facilities for the park. The State Attorney has objected to that. I don't understand that objection, because if you agree that they are allowed and it's provided for nighttime security, to not have a notification clause of nighttime events, is just simply asking for trouble. The truth is, I don't think we've had any nighttime events outside of turtle nesting at that park, and probably wouldn't. But I thought it was a precautionary step that made some sense, so that some person who's sitting there doing nighttime security at the gatehouse is informed of an activity so that access can be provided, as opposed to being deterred in the face of a question. So that is one thing I think there was still disagreement on in the end. Mr. Manalich, on my laundry list, there were nuances along the way. I will tell you, it will be interesting to hear the State Attorney's representatives' comments on this, because I really feel that the homeowners have in essence given in every physical aspect they can with the exception of taking a guardhouse that's in the center of a roadway, putting it on the right side of a roadway, and expecting it to function appropriately. That seems to be the only significant point that the homeowners'association has not given into, and that's why we're here today. We're talking about whether a guardhouse exists in the middle of a roadway and is a visual impediment or physical impediment to access, or whether that same guardhouse is located on the right side of the roadway. So to me it's an issue of about 15 to 20 feet. And when you look at the other parks in our county system, you will find gatehouse structures in the center of the access to nearly every beach park that we have. Clam Pass Park comes to mind, and it even has gates. So I think there's an inconsistency in saying that the existence of that gatehouse is an impediment to access, when in other county parks we have actually constructed facilities that are unmanned in the same configuration. That's an opinion on my part and debatable among members of this board and the public, but I did want to offer that. I think I have covered most of what I felt were the points of negotiation that we discussed. Like I said, I was very disappointed when I received the letter that these points of negotiation -- thank you for offering those -- now move the guardhouse was the response we received. And I really felt like we'd been led down the primrose path; that a solution was possible and then told at the end no, thank you, until you move the guardhouse, we, the state, are not going to agree to anything. The concern I have there is that is the end result -- assuming we win the appeal -- significant enough for public access issues to expend a quarter of a million dollars of taxpayer money? My feeling and my basis is that public access, under its current operation, is complete and full public access. It is not impeded, deterred or made to feel unwelcome in any way, shape or form, and would actually be improved by the agreement before us today. I compare that to what could happen, whether we are successful in the appeal, or worse yet, if we are unsuccessful in the appeal. And I feel that the proposal in front of us today takes a ten-year issue and puts it to bed in the face of reasonability with giving full support to the issue of public access. I know that's not how it would be written up, but that is how -- that's where I think we are today; and that's why I come to you today with this proposal and with my support of it in asking you to review this and determine whether or not a majority of this board agrees that this proposal does in fact resolve this issue once and for all to the benefit of the public. COMMISSIONER NORRIS: Let me ask you a question just for clarification. The -- during park hours, daylight hours, will there be someone on duty in the guardhouse? COMMISSIONER HANCOCK: Yes. There has been in the past, for the simple reason that people who access the park can also pull into condominiums and whatnot. And there have been some problems with people using pool facilities and whatnot, plus construction traffic. So much like when you pull into any community and they issue you a visitors' pass, that is done next to the gatehouse. The lanefarthest from the gatehouse is the public -- is the beach access lane, and we've clearly marked as such. COMMISSIONER NORRIS: Well, when you compare this, for example, to Tiger Tail Park, Tiger Tail Park has a gatehouse with a guy in it. There's always someone there, and it has swing gates and it's got one lane in and one lane out. The guard on duty stops everybody that goes in to check for a parking pass and lets them through. Now, we're not even talking about stopping people at this facility, are we? COMMISSIONER HANCOCK: As a matter of fact, this agreement would prohibit the stopping of any vehicle that is accessing the park. COMMISSIONER NORRIS: So in reality, our other parks are somewhat to some degree more restrictive than this proposal? COMMISSIONER HANCOCK: It's my opinion, yes, that that -- that that's the case. COMMISSIONER CONSTANTINE: Whose employee is that at Tiger Tail? COMMISSIONER NORRIS: Ours, I guess. COMMISSIONER MAC'KIE: Thus the difference. COMMISSIONER HANCOCK: Well, and that's -- that was one of the suggestions. When the ranger issue came forward, the homeowners felt that they were proposed something that would put a county person up there at the front of the park to ensure that the public access was protected. That was seen as a threat by some people that this person was somehow going to be at the whim of the homeowners, when in fact that would be an employee of Collier County, much the same as the individual at Tiger Tail. I thought it would be beneficial, as a point source of information, that when the parking lot's full, everyone has the same question, where else can we go? And we would have a county person up there, half of their salary paid for, to accomplish that service. I thought it was a good idea. Again, the homeowners, in trying to meet the request of the Attorney General's Office, said fine, we'll scrap that and go to the electronic sign, which was mentioned earlier. Enforcement is something that I didn't cover and I do want to the cover. It's rather unclear at this point if somebody violates the access agreement what process of enforcement is available. We the county are the ones who are supposed to enforce it, yet the method by which we enforce it is rather unclear. And I think we saw that as we went through the code enforcement issue. The existence of the gatehouse was the only thing that we could really look at. We didn't have a mechanism to say well, if you stopped somebody wrongly, here's the enforcement penalty. This proposal would place the jurisdiction of that decision into the local courts so it automatically goes to a judge to determine if it is a valid violation. And Ramiro, you can be more elaborate on how that would work than I can, obviously. But it does clear up and answer once and for all what is the enforcement mechanism for any violation of the agreement. And I think that's something that we have lacked in the past. COHMISSIONER HAC'KIE: I'd just ask Mr. Olliff to correct me if I'm wrong, but I think that's changed at Clam Pass Park. Now there's a lot more welcoming signs than there used to be there, and in fact, there's not an arm or anything like that at Clam Pass. Because that -- I was very troubled by that when you mentioned it before, and we looked into it. The private Naples Cay signs might have been discouraging, but that's been completely changed now so it's very welcoming, very clear that it's a public park. COHMISSIONER HANCOCK: And likewise, there was some request for additional signage on Bonita Beach Road. And although I didn't discuss it specifically with the homeowners, I don't think there's any, any resistance whatsoever to additional signage on Bonita Beach Road indicating the entrance to a county park coming up. And I'm sure they can speak for themselves, but in my discussions with them, signage -- increased signage to show there's a park at the end of the road -- has not been a concern and would not be. So that can even be accomplished bringing, if you want, more attention to the fact there's a park at the end of that road. That can be accomplished. And I'm sure we're going to hear some agreement on that from the homeowners' representative today. CHAIRPERSON BERRY: Okay. If there's nothing further, Commissioner Hancock, we'll take a break and give our court reporter a break and we'll be back in about 10 minutes. (A recess was taken.) (Commissioner Constantine is absent from the boardroom.) CHAIRPERSON BERRY: We will reconvene the meeting. Okay, I think at this point in time, Commissioner, we've heard your report on this. We will now go to public speakers. Mr. Weigel, if you could take a look at our public speaking list, please. MR. WEIGEL: Happy to do so. Madam Chairman, I know that there are speakers signed up for each of the parties here, as well as the public in general. If you have no particular direction, I'll take them from the top. I know the county administrator has put these in the order of submission. CHAIRPERSON BERRY: Okay. MR. WEIGEL: Okay? CHAIRPERSON BERRY: Commissioners, at this time we did hear on Commissioner Hancock's report -- COHMISSIONER HAC'KIE: I'd love to hear if there is an official State Attorney position. CHAIRPERSON BERRY: Is there a speaker from the State Attorney's Office? MR. WEIGEL: Well, actually -- COHMISSIONER HAC'KIE: I mean Attorney General's. MR. WEIGEL: I was going to say -- CHAIRPERSON BERRY: I'm sorry -- MR. WEIGEL: -- this isn't a criminal matter at this point. CHAIRPERSON BERRY: -- Attorney General's Office. MR. WEIGEL: -- but -- no, it's the Attorney General. CHAIRPERSON BERRY: Right. MR. WEIGEL: They are here and they do have a speaker here, and I will pull the speaking slip. COHMISSIONER HAC'KIE: Does that make sense? MR. WEIGEL: Here we go. CHAIRPERSON BERRY: Yeah, let -- COHMISSIONER HANCOCK: I think if we're going to do that, we may also want to hear from the representative of the homeowners. MR. WEIGEL: Okay. And they are up -- actually, the representative of the homeowners, I believe -- isn't Batty DeNicola of the homeowners -- MR. FERNANDEZ: Homeowners' rep. MR. WEIGEL: -- was tops on the list. So it's -- CHAIRPERSON BERRY: All right, let's hear from the homeowners, and then let's hear from the Attorney General's Office. MR. WEIGEL: Okay, fine. First speaker -- CHAIRPERSON BERRY: And then following that, it will be the general public. MR. WEIGEL: Okay, fine. The first speaker would be Batty DeNicola, followed by Honica Reimer of the Attorney General Office. CHAIRPERSON BERRY: Okay. MR. DeNICOLA: I certainly -- good morning, Madam Chairman and commissioners. I certainly -- CHAIRPERSON BERRY: Your name, please? MR. DeNICOLA: I certainly hope that I don't ruin that string of five-oh votes. COHMISSIONER HANCOCK: Batty, we need your name. CHAIRPERSON BERRY: We need your name for the record. MR. DeNICOLA: It's Batty DeNicola. I'm president of the Lely Barefoot Beach Property Association. My first request is -- what I was wondering is that we had many people sign up, and I would like to request that if we limit this to myself and one other speaker, maybe questions or comment from the attorney, that if I run over a little bit that's permitted, as opposed to having the large group that's here. We tried to determine that. I won't be much. CHAIRPERSON BERRY: Okay. MR. DeNICOLA: I'd first like to say that, you know, the negotiations with the county were positive throughout. We worked hard at the -- to obtain the initial agreement. When the state intervened and gave us our list, there was no actual proposed agreement from the state that we said no to. What we did was, we evaluated their request, we went back to our homeowners, and we talked to them, we talked to the county, we negotiated. There were points, such as the guard arms being up that we thought landscaping would look much better than to physically take it down. And as a result, we decided approximately in the beginning of September that the way to go about it was just to agree to thosedemands and really meet everything that the state had required us, with the exception of the notification. We felt that it was important to be notified, or we would have confrontations if you ever did choose to have a night event. And it had to be -- they originally didn't bring up the without prejudice, and obviously, it has to be full closure. We would not agree to something like that. What I would like to do really is just run down through some important items that I think we need to make sure we know. In the land management plan, I just want to tell you, on page 26, the state's fully -- has been fully well aware of a guardhouse. And in the land management plan that they accuse us of violating, on page 26 it says, Collier County Parks and Recreation Department will use the following access control procedures. During open park hours at the preserve, Lely shall have their gates open. A sign of approximately 12 square feet will be installed in a highly visible location, indicating that all park visitors shall proceed directly to the preserve without stopping. They knew the guardhouse was there, okay, and the sign has been there. That's just the first item. The second is the use access agreement. In this agreement -- I think it's very important, one of the things not brought up at the front -- we have a signed use access agreement signed by Collier County, and in that use access agreement, the following statements exist: If parking becomes full at any time, access to the property, meaning the preserve, will be temporarily closed at the intersection of Bonita Beach Road at the entrance to Lely Barefoot Beach subdivision, until such time as the parking spaces become available. Upon request of the park superintendent or representative, the assigned -- seller assigned shall have the right to stop access to the park property, i.e. preserve, when the parking lot is full. Probably one of the reasons for all the controversy years and years ago. I think we've matured as a community and we came to the conclusion, let's try to make this thing work, approximately two and a half years ago, or so. And we've kept the arms up. And as a part of this settlement, this agreement goes away. We're giving this up. It's gone. I think it's a huge thing to consider, because as I'm going to get into the zoning board appeal in just a minute, I think it's very important for you all to know that -- let's say you appeal. And, you know, this was a board of average citizens, you know, a home selected board by Collier County, who, you know, heard days and days of testimony and basically said the guardhouse was legally there. And I'll refer to that in a minute. If you appeal this and the appeal is not up -- you know, it's upheld in our favor, the -- this access agreement still exists. Now that we've spent $250,000, the county has, and we still have the use access agreement. Is that really worth that chance, or are we that confident of the -- you know, are you that confident of the appeal? We would like to see it all end and hopefully with that incentiveof that going away, that will mean something else. The next item really is -- CHAIRPERSON BERRY: Go ahead. MR. DeNICOLA: And I'll try to hurry. The next item really was -- in this, you know, the zoning board appeal, and I'm just going to quote a couple of things. I think in the findings of fact, it's really -- states that, you know, several issues, all of which were very, very positive, I believe, for the case the guardhouse should stay. But it said the evidence did not establish that the respondents had violated the Land Development Code. The evidence did not establish that the Land Development Code, as it existed at the time the guardhouse was erected, was the same or substantially similar to the '91 code was violated. And then finally, number nine I think's very important. It says the guardhouse does not impede access by the public to the county park or the state park. I think that's an extremely important point that we all should consider when evaluating this agreement. The evaluation from the state, let me tell you that -- how that happened. While we were receiving a fairly harsh letter, and in October of last year there was a management team of DEP for the state, which Commissioner Hancock alluded to earlier. And basically what they did was they came through our park and they looked at it, the whole management of the park, and obviously the park's well run and got very high rates. One of the areas that they con -- you know, were concerned with, it says the degree to which actual management practices, including public accesses are in compliance with the adopted management plan. A score -- it goes further on to say that a score of anything 2.5, equal to or greater than, is exceptional management actions. And it goes on. And one of the items listed is providing public access via roads to the park. It says after completing the checklist, the team members were asked to yes or no questions and they, of course, rated it. Just to let you know, the road received a 2.6, the access to the park a 2.6, exceptional rating by their own team. And as we stated later on as a -- I guess I'm not sure exactly why they did that. They tried to change the effect of that, but it's very clear, if you read it, they meant the road, they meant the access to the park. It's very clear. Collier County government, during a time from July through September of 1997, did their own survey of park visitors. In July there was 13,700 visitors, of '97. August, 12,758. And September, 9,134. They surveyed over 250 of these visitors. They got -- each one signed a little form. There were only two complaints out of the 250. One of them said they complained because the preserve had not opened at 7:45, and the other complaint was that he did not like the guardhouse. There were two. That's it. County report, their own survey to check on our guardhouse and what actions it might have caused. There's no vandalism at this park. Bonita Beach Park is constantly painting walls, replacing broken sinks and toilets. This is a park that's -- doesn't suffer from vandalism. One of the reasons is exactly what was stated, that they do have nighttime security for the park with no cost to the county. We're maintaining the roads. We have plans to landscape this road from the front to the back. It's going to be one of the prettiest drives in the State of Florida to any park. We're going to do it from the front to the back. And I would ask, really that -- you know, I can tell you that the negotiations have been with -- we've been honest, we've had integrity, and people need to put the past behind them, they've got to be able to do that. If you can't do that, this is not going to pass. You've got to be able to do that. Are they going to come up with, you know, this little argument or that? The agreement solves those arguments. So that's what the purpose of the agreement is. And we've worked hard at it, and we've done it. I recently this morning met with a representative of the state. I was asked about moving the guardhouse. And basically what I -- you know, what I've stated is it was visited before, we looked at it hard, and it was not feasible. Would I stop talking to her if this agreement passes? Absolutely not. I think it's an incentive for both parties to settle, if the agreement passes. Will I continue to talk to her, will I talk to her next week, this week? Yes, I will. But this agreement should settle. These two parties, we should finish this. It's been a very -- lot of work. And finally, you know, I would like to say, we're not a foreign country out there, we are taxpayers. We feel we were given this -- you know, this guardhouse properly, it was permitted, it was approved. And really, we don't feel there's a right to take it away. We've matured, and, you know, it's wide open out there. I can tell you, there's no one being stopped. And we ask that -- I ask that you totally support the settlement. I think it's the proper thing to do. If you have any questions, I'll be happy to answer them. MR. FERNANDEZ: Next two speakers are Monica K. Reimer and Lorene Wood. MS. REIMER: County commissioners, my name is Monica K. Reimer. I'm Assistant Attorney General with the Attorney General Office in the State of Florida. I'm here representing the Attorney General in his capacity as Attorney General, and I'm also here as the Attorney General representing the Board of Trustees of the Internal Improvement Trust Fund, which is the owner of the Barefoot Beach preserve at the end of Little Hickory Island. COMMISSIONER CONSTANTINE: Ms. Reimer, can I just suggest you pull that microphone a little closer? MS. REIMER: Okay. COMMISSIONER CONSTANTINE: Thanks. MS. REIMER: I think I'd first like to address the issues thathave been raised about the negotiations. First of all, we have a letter from October of 1997, which the staff and this commission has, which indicates that in fact the Attorney General's Office was not privy to the negotiations that were taking place between the homeowners and the county, and that we in fact had attempted to participate in those negotiations and that we were rejected. And that was the reason that the -- it was taken off the agenda back in October of 1997. There was a meeting between the Attorney General's staff and the members of the property owners' association. At that meeting, all of the suggestions that were made by the Attorney General's Office were rejected. We subsequently memorialized the items that we thought were of importance in a letter. We also stated very clearly to Mr. Hancock that any of the proposals that were in there were -- they were not always going to be on the table, that we were very, very disappointed that the commission and the homeowners appeared to be rejecting the idea of the -- of taking the guardhouse out of the middle of the road. And we felt very strongly that that was still an issue, but that there were other issues. In fact, we were not a party to that settlement. That's one of the reasons why we were concerned about it being dismissed without prejudice. We were not named as a party to that settlement. The state -- I mean, it was completely negotiated without us. We were not listed on that settlement whatsoever. So there is that issue. In fact, the list of the issues that were presented to the homeowners in October were rejected again in July. In fact, they sat there and waited for a year. I mean, I don't know if -- my feeling is sort of if you sit on a proposal for too long, there's a point at which things are going to change. And, in fact, one of the things that changed is that I came onto the case. I came onto the case after the homeowners had rejected the proposal in July, and I was charged with the Attorney General for looking at the case, determining what in fact we believed the legal rights of the state were and the county were as the, shall I say, steward of the rights of the people, when you lease the preserve from the State of Florida. I was charged not only with determining what I felt were our legal rights under the easement agreements that had been entered into by the State of Florida, but also what I consider to be a reasonable position in the settlement negotiations. Those were the two things that I was charged with. I took these responsibilities very seriously. I read about three or four feet of documents over the course of the last three or four weeks. It's been a very interesting three or four weeks. It's been very busy. My determination about what I -- and I guess I'm going to set this out this way. I'm going to explain to you what I believe the state's rights are and the rights which I believe the county possesses and the responsibilities that I believe the county possesses as thelessee of Barefoot Beach Preserve. And I'm going to explain that just very briefly what I think our position is. Then I'm going to explain how I came up with what I consider to be reasonable settlement solutions of this controversy. First of all, one of the things that I'd like to show you is -- there's been a lot of talk about sort of the hard -- well, the position that the homeowners are in here. And I'd just like to say, the state got a very good easement in 1988. The state had purchased the property at the end of the island prior to the time that Lely was going to develop the island. The state had an easement which preceded the easement, that easement agreement with Lely, in fact. And I'd just like to show you a map. This is very early on. This is in fact before the easement which was entered into. If I could approach and just show you. CHAIRPERSON BERRY: If you talk, you'll have to use the mike, Honica. MS. REIHER: If you can see, this is the island. I'm going to hold it up here. It's the north end of the island. The south end of the island -- down here, in fact, is the property that the county eventually purchased from Lely. The black line, which goes right through all of the houses which are going to be built on the beach, all of the good property, has in fact a 160-foot wide easement that goes right down through the area that is the developable area of this island. COMHISSIONER MAC'KIE: In whose favor? MS. REIMER: This is for the state. This easement benefitted the state's property which it purchased back in 1977, and this was the easement that the state had. This is the easement that we were bargaining over exchanging with Lely. In fact, the PUD requires that this easement be vacated, or the island can't even be developed. Lely was not going to be able to develop the island with this easement in place. Absolutely not. So the state was in a very strong position to get a very good easement in -- excuse me, in 1978 when the original easement was being negotiated. And in fact -- and also, I just want to say that the state's position is we are purchasing -- the state purchased this property with public funds. And the state absolutely does not purchase property without absolutely unfettered public access to that property. I don't even think it would be legal for the state to do so. And I don't think the taxpayer money could be spent to purchase land that did not have public access. Obviously it can be regulated, but the public access guarantee as a property right would have to be there. So this is the easement that we obtained. Lely came to us, to the State of Florida -- COMMISSIONER HANCOCK: We may not be getting all of that on the microphone. Maybe it's best to do it -- MS. REIMER: Okay. COMMISSIONER CONSTANTINE: We could post that over there on the bulletin board, if you need to refer to it again, and there's ahandheld microphone. MS. REIMER: Lely came to the State of Florida in 1978 and said we want to exchange this easement because we can't develop this property if we don't exchange this easement. And what the state got was the sort of easement agreement that you would expect somebody to get that's got that kind of bargaining rights. What we got was an agreement that states, all rights granted by this agreement to the state shall benefit any transferees, successors or assignees of the state and shall not be restricted in any way. What we obtained was a 60-foot wide easement for ingress and egress to the state property. Sixty feet wide. Now, there's often been talk about, as if the state's easement rights only flow over the road. That is not true. Under this easement agreement, we have a right of ingress and egress over the entire 60 feet, which was granted to us. We also have the right to use any road which is located within that easement corridor. We also have the right to have that road maintained by Lely, and this is traditional easement law. Generally, the person who owns the property maintains the road. There is nothing peculiar about the fact that Lely Development has to maintain this road. That is traditionally what happens. We also have the right to maintain and improve the road ourselves. The state has that right as well. We could come in there, we could widen that road, we could do things to that road. We have the right to do that, if we need to. And, of course, there was also an obligation that Lely construct the road down to the limit of the land that was being exchanged at that point, the easement that was being exchanged. And a lot of people don't understand, there were two exchanges that took place. The first exchange -- the first -- thank you very much. The original exchange of easements in which the first part was vacated only came up to the end of Unit One, which is about a third of the way through the easement corridor. So there was only an obligation to construct a road up to that point. In addition to this easement agreement that the state obtained in 1978, the state also obtained an agreement, a written agreement. It was between the head of the Department of Natural Resources and the representatives of Lely. We gained some additional rights. Under this, we obtained the rights to have utilities run, that we would be able to connect up utilities; and this is the famous agreement that also talks about the gate. This is entered into exactly the same time. What this agreement states is that in fact a gate can be installed at the end of the road up near Bonita Beach Road, which is going to provide security for the property. It may be kept closed to everyone except, obviously, state personnel. The road can be closed to people until the state property is opened. Once the state property is opened, the general public has the right to use the road that's constructed at any time that the park is opened, as determined by DNR. So essentially the way that I interpret these two documents together, what we have is a public road during the daytime hours when the park is open. That's what the state was bargaining for, and I believe that that's what they got. Lely has a private road at night when the park is closed, and they are entitled to have any nighttime security that they wish to have during that time. That is absolutely -- the state doesn't have a dog in that fight, let me put it that way. We don't have -- they can have anything that they want at night, but essentially I view these agreements as creating the right to have literally a 60-foot wide road, if we wanted to have that, during the time that the park is open. Now, legally -- and I'm sorry to do this so -- in very legalese, but I feel it's important that you understand the state's position, the state's legal position in this issue, because these issues were not litigated in the code enforcement action. None of these issues were raised, none of these documents were interpreted. In fact, the Code Enforcement Board does not have authority to do that. These issues remain. These rights remain. This is a bundle of rights that you, as the County Commission, have in your arsenal, if you were in a lawsuit. These are a bundle of rights that I think need to be considered when you are negotiating with the homeowners over what the solution -- COMMISSIONER CONSTANTINE: May I just make a suggestion that perhaps you spend a little less time explaining what you're going to tell us and why you're going to tell us, and just tell us? MS. REIMER: Certainly. COMMISSIONER CONSTANTINE: And then if we have questions why you told us, we can ask that at the conclusion. MS. REIMER: If you feel, Mr. Hancock -- I simply wanted to -- CHAIRPERSON BERRY: It's Constantine. MS. REIMER: -- explain -- I'm sorry, Mr. Con -- what the -- what our rights are. The second thing that I was asked to do by the Attorney General was obviously to come up with some sort of position in settlement negotiations. What I did was in the course of reading all of the information that I had, I also read the transcript of the code enforcement case. In the code enforcement case, the homeowners put on their repre -- a representative, someone who lived in the -- in the homeown -- in the subdivision. He was asked by one of the people on the Code Enforcement Board -- this is what her question was. And there should -- I mean, why should there be a guardhouse there? If you're not impeding traffic and if it doesn't matter, and if you want everybody to use it, then why do you care if there's a guardhouse or not? And the witness said, ma'am, if you'd like to put the guardhouse on wheels and wheel it out in the middle of the road at night, we're in favor of it. We're asking to do what we want to do at night. And I feel that what this homeowner was expressing is exactly what is contained in the agreements that the state obtained with Lelyback in 1978 and 1988. Those suggestions were contained in a letter from the Attorney General's Office in November. What we suggested was that the issue of unnecessary traffic to the county park, which we believe is a genuine issue, although with the imposition of the beach fee, I think there's less than half the traffic that used to be there, for example, even in 1994. It really stopped a lot of the traffic. We believe that the use of the electronic sign, which was suggested, is an excellent suggestion. It will stop the unnecessary traffic. The homeowners certainly have the right to not have traffic on the road, if it doesn't need to be going there. On the issue of nighttime security, as I've stated, they have the right to have any kind of nighttime security that they wish to have, in any form that they wish to have. They can have a guardhouse in the middle of the road at night, if they feel that that's necessary to provide for security. On the issue of the guardhouse, I took the homeowners' suggestion to heart. I thought, what an excellent idea. There are a lot of very innovative solutions that could be used here that do not involve a guardhouse in the middle of the road. In fact, I've even called guardhouse places. This is a booming industry. I mean, there is an incredible number of solutions that exist out there. I know that the homeowners have expressed that there are engineering concerns. I think, not to be trite, we got a man on the moon, I think we can move a guardhouse 20 feet. They say that there's some issues about there not being land. What the state's position is on this is, although I believe the state has the right to say a 60-foot -- we could actually require the removal of buildings off of this 60-foot wide area. The state doesn't need that 60-foot wide area. If that area is needed by Lely in order to have a guardhouse on the side of the road that will provide them with sort of visitor information services that they want to provide, we are willing to do that. We are not concerned about the tract A issue. We are not concerned about where the guardhouse is located. If it's off the side of the road, it's really not our concern. We simply feel that it is a reasonable thing that -- when you have what I believe the state obtained, and what I believe the county has, is a public road that you don't put private guardhouses with uniformed guards in the middle of that road when you're expecting the public to be going down it to use the property. I think that that's -- I just think that's a very reasonable position. But we are willing to work with the property owners on coming up with some sort of engineering solution that will involve removing the guardhouse off the side of the road. I would like to address a couple of the issues that were raised by the homeowners. Mr. -- I'm sorry, I forgot his name. COHMISSIONER HANCOCK: DeNicola. COHMISSIONER HAC'KIE: DeNicola. MS. REIHER: -- DeNicola mentioned the land management plan. Infact, there is a letter from the person from the Department of Environmental Protection who in fact supervised that entire review. He is on record as stating we were aware that there was an issue. We did not address that issue in the review of the land management plan. What we were looking at are the roads and the trails which exist within the preserve themselves, within the park, and they're obviously excellent. There's certainly no issue about that. So that is not what they're trying to make it into. In fact, they were not looking at it specifically, because that issue is in litigation, and they were aware that it was in litigation. On the question of -- CHAIRPERSON BERRY: Excuse me, Ms. Reimer, when was that -- just go back on that particular one. What was the date on that when that was said? MS. REIHER: The board of trustees had on its agenda on September 23rd, 1998, the consideration of a number of reviews, of a number of land management plans throughout the state. The Barefoot Beach Preserve area was simply one of those areas. CHAIRPERSON BERRY: This was not at a -- this was a Cabinet meeting or was '- MS. REIHER: This was actually a Cabinet meeting. CHAIRPERSON BERRY: Cabinet meeting? MS. REIHER: Yes, it was. And the letter was dated September 16th, 1998. It was from the gentleman who's the deputy secretary at DEP. And there's an accompanying memo from Mr. Clark, who was in fact the person who states, "I oversaw it. We knew it was in litigation. We did not want to get into this issue." They were very careful to stay out of that sort of thing. COHMISSIONER HAC'KIE: Just a question about that. Because it -- what in fact then did that review study? Internal trails, is that what you're saying? MS. REIHER: They're looking inside the management preserve. Yes, they're looking at the roads and the trails that exist with -- inside the park. So you have the road actually within the park, the parking, the trails that go down through Barefoot Beach Preserve, along the road. I mean, there are roads and trails that are located within the preserve, and that's what they were looking at. COHMISSIONER HAC'KIE: Okay. COHMISSIONER HANCOCK: So you would have me believe that were there a large pile of dirt in the middle of the road they had to drive around to get to the park, they still would have rated it as extraordinary for public access? MS. REIHER: What they were looking at was how the management of the park was being conducted within the park boundaries. They did not look at, review, analyze, the situation of the public access issue as it related to the guardhouse in front, because they know it's in litigation, and they did not want to get involved in it. COHMISSIONER HAC'KIE: See, it's hard for me to conceive of it, maybe it's just because we've been focused on this issue for 10 years. It's hard to conceive of anybody opining on the public access to thatpark and intending their review to mean internal movement within the park. I mean, that doesn't seem to mean public access to me. MS. REIMER: Well, the review is not access to the park, the review is access within the park. I mean, you're looking at what it is that the people are able to access within the park boundaries. In fact, this has been an issue at the land management advisory council of not trying to go outside, you know, the specific park boundaries. But in this case -- COMMISSIONER NORRIS: How much longer -- MS. REIMER: -- in fact -- COMMISSIONER NORRIS: How much longer do you think your presentation's going to be? MS. REIMER: Another two or three minutes. And in fact, there was a comment by one of the people. There was some places for additional comments, and there was a comment that they wanted to ensure that there was complete, unencumbered, unfettered access to the preserve. There was a comment that was made by one of the reviewers. I'd also like to address the fact that the homeowners made very much of the fact that there have not been complaints issued since 1995. The reason there haven't been any complaints or issues since 1995 is because the Attorney General's Office intervened in the lawsuit that had been filed by the homeowners' association. In fact, when the land management plan by the state was passed in 1993, which required the guardhouse gates to be up and the public to be allowed to go through without stopping, the homeowners refused to comply with that. They refused to comply with it for several years. It was one of the reasons why the Attorney General intervened in this lawsuit was because they were not complying with the terms of the management plan. This is one -- the gates have now been up. Yes, I do not expect there to be big issues while this is in fact in litigation. So that's my response to that. As we've stated in our letter, we do feel that there is -- our recommendation is simply that what needs to happen is that the State of Florida, the board of trustees, need to be involved in the negotiations. We need to look at a feasible solution which involves the guardhouse moving off the side of the road, that this addresses all the concerns of the homeowners, it provides them with a nighttime security that they have expressed their concerns about. They also have during the day -- I know they've talked about having to stop visitors, but they in fact have roving guards within the area which also function as security agents for the homeowners, as well. And one other statement. There have been some issues that have been raised concerning the Attorney General's participation in this lawsuit, the desire of the Attorney General to be here, why are we here? And I'd just like to state on the record that the Attorney General is the chief legal officer of the State of Florida. He ischarged with the responsibility of representing the public's interest. He has represented that public interest diligently over the course of the last 12 years. I personally was involved in the fish-eating creek case over in Glades County, and we litigated that case for eight years. I lost a federal trial, I lost a preliminary injunction, and we finally won a six-week jury trial. The Attorney General is dedicated to the concept of public access to public property, and he has been throughout his tenure in office. This is -- if this were -- he has been that way in Colly for a number of years. I -- my -- I want the county to take it as seriously as the Attorney General does. COHMISSIONER NORRIS: And the county does take it very, very seriously. And this agreement improves the public access over what it's ever been. COHMISSIONER HAC'KIE: But that's the point. COHMISSIONER NORRIS: It removes -- completely removes the gate and denies the ability to stop park goers at the gatehouse. COHMISSIONER HAC'KIE: But John, you know, you make the County Commissioners? MS. REIHER: Yes. We have expressed in our letter that we do not believe that the County Commissioners should enter into an agreement at this time which doesn't provide for consideration of feasible solutions to move the guardhouse to the side of the road, which will address public access concerns and the homeowners' security concerns. COHMISSIONER NORRIS: Okay. Your concern is public access? MS. REIHER: Yes. COHMISSIONER NORRIS: Right. And this agreement provides for the complete removal of any gate mechanism during the park hours, and completely unfettered access by the public. I'm not clear why you're now objecting to that. Is it because simply that the guardhouse sits in the middle of the road? MS. REIHER: This returns to my legal position, which is I believe that what the state obtained was a public road. I do not believe that a private guardhouse with a private uniformed guard ought to be standing guard in the middle of the road that leads down to public property. I think that that is inappropriate. I think that it always -- COHMISSIONER NORRIS: And what is the pertinent issue in that statement? I mean '- MS. REIHER: That what you have it -- COHMISSIONER NORRIS: -- there's several elements to that. You have a private guard in a guardhouse in the middle of the road '- MS. REIHER: In the middle of what -- COHMISSIONER NORRIS: -- so what is pertinent there, in your view? MS. REIHER: That there is a private guardhouse with a private guard in the middle of what I consider to be a public road. That would not be allowed anyplace else in Collier County, and I don't think that it ought to be allowed here. COHMISSIONER NORRIS: But have you been to Delnor-Wiggins Park? MS. REIHER: No, I have not. COHMISSIONER NORRIS: There's a guardhouse in -- COHMISSIONER HAC'KIE: It's a state park. COHMISSIONER NORRIS: -- the middle of the road. State park, with gates, and a uniformed officer that collects money. MS. REIHER: Is it at the entrance to state property? COHMISSIONER NORRIS: That's right. MS. REIHER: Then I believe that they have the right to have a guard or a gatehouse at the entrance to state property. Yes, I believe -- COMHISSIONER NORRIS: But I think that the -- MS. REIMER: -- that they do. COMHISSIONER NORRIS: -- really difficult part is to try to understand why you're objecting at one park when you provide the same thing identical at another park. And, in fact, the homeowners have agreed to remove the gate, so they're not even there, and not stop anyone who goes through that's going to the park. I mean, it's far easier public access than the one you run yourself. MS. REIHER: We -- COHMISSIONER MAC'KIE: MS. REIHER: Yes. COHMISSIONER NORRIS: COHMISSIONER HAC'KIE: COHMISSIONER NORRIS: COHMISSIONER HAC'KIE: COHMISSIONER NORRIS: One's a public employee, though. Well, sure. I mean, it's a state employee. Is that the issue? Then if -- Well, it's certainly part of it. -- that's the issue, I think -- you know what I think? I think you're just in a snit about this whole thing because you weren't -- you weren't invited to one of the meetings at one point in time. MS. REIHER: I personally -- COHMISSIONER NORRIS: Because the access is clearly as good or better than Delnor-Wiggins, which is your state park. MS. REIHER: I do clearly believe that the State of Florida should have been involved in the negotiations, xists at Delnor-Wiggins State Park, you have an identical situation with the exception of who funded the construction of the gatehouse. That particular element was rejected by the State Attorney's Office, there being no presence of a park ran taking it very seriously and has taken it seriously for a number of years. I -- my -- I want the county to take it as seriously as the Attorney General does. COHMISSIONER NORRIS: And the county does take it very, very seriously. And this agreement improves the public access over what it's ever been. COHMISSIONER HAC'KIE: But that's the point. COHMISSIONER NORRIS: It removes -- completely removes the gate and denies the ability to stop park goers at the gatehouse. COHMISSIONER HAC'KIE: But John, you know, you make the point, itis. And that for me -- this was really hard for me, because when I heard the agreement, it all sounded so reasonable. You guys have come so far, you've done so much. The problem is, it's such a tremendous improvement over a completely unacceptable situation that it looks like we've gotten somewhere, when in fact the starting place is what's broke. It is. Nobody could deny that this agreement is 1,000 times better than it has ever been, but it has always been wrong, because the guardhouse didn't belong there. (Applause) CHAIRPERSON BERRY: Okay. But having said that -- Commissioner, having said that, have -- by doing what this agreement states, have we remedied that problem? COHMISSIONER HAC'KIE: We only have improved the -- we've reduced the problem. We have made it better than it was. But if they came in today with this -- especially looking at what rights the state had that they traded, so you know that the state got a lot. If they came in today and said we would like to put a guardhouse here in the middle of this road that's -- essentially functions as a public road -- we can debate legalistically whether it is or isn't a public road -- but it functions as a public road during the day. We'd like to put a guardhouse here and we're going to -- it's not going to have anything to do with access to the park, but during nighttime hours, we're going to put arms down and not let anybody through. Would we give a permit for that? COMMISSIONER HANCOCK: Actually, let -- change that just a little bit and let's see if that's a -- if that question makes sense, and let me make one minor alteration. If we were to negotiate a condition today -- first of all, the state negotiated the existing 60-foot easement, not Collier County. COMMISSIONER MAC'KIE: Right. COMMISSIONER HANCOCK: So the existence of that easement and the bemoaning the fact that it's not the 160-foot wide easement to the west is not our issue, it's the state's issue. That was a state negotiation. Collier County did not initiate that. That was between Lely Development and the state, moving that easement from the western to the eastern location. So it sits there today. COMMISSIONER HAC'KIE: Right. COMMISSIONER HANCOCK: If they were to suggest -- we now collect three dollars. We had to construct a little kiosk down at the entrance to the park to collect fees as people entered the park. If it was suggested that the property owners would build at the entrance there as you pull in, giving enough stacking room, we'll build a small gatehouse for a county employee to sit in and collect the three dollar daily fee and allow people to proceed to the park, and then at night they would occupy it for nighttime security, how is that any different than what we do at any other park in Collier County? COMMISSIONER NORRIS: It's not. And that's why -- you know -- COMMISSIONER HANCOCK: But also -- John, if I could follow onthat. The issue you raised about a private gatehouse, whether it's built with private dollars or public dollars, it's a gatehouse. And I don't think the person that pulls up to it knows who spent what to build it. It's just simply a gatehouse that sits there. Who owns it, who built it on an access basis is irrelevant, in my opinion. What is relevant is who operates it. And one of the suggestions was a park ranger would be there to ensure public access. In other words, a county employee with a badge, working for Collier County. And when you compare that situation to what exists at Delnor-Wiggins State Park, you have an identical situation with the exception of who funded the construction of the gatehouse. That particular element was rejected by the State Attorney's Office, there being no presence of a park ranger at the entrance to the park. We could have eliminated the second kiosk at the entrance to the park and collected fees up there instead of at the end. It doesn't -- that was just simply rejected outright. So when you compare one versus the other, what we have -- and Pam, you hit it on the head. More than 10 years ago, things were done that if we could do them today we wouldn't do them that way. COMMISSIONER HAC'KIE: Right. COMMISSIONER HANCOCK: I don't think anybody says we would adopt this same agreement today, that we would do things the same way we do today. But what we lack today is the flexibility to accommodate what has become the rights of the property owners and the rights of the public within that 60 feet. And a construction that has gone out outside of that 60 feet has limited our ability to create, in essence, two entrances. Because thatws really what wewre talking about here. Remember, we went back, I did the drawings trying to move it to the right-hand side and create an additional lane and do everything. It was just too tight because of existing construction. And as I listen carefully, what it comes down to is you donwt fight the -- you donwt argue that a gatehouse in the middle of the roadway tells people to stay away by the existence of them at state parks. MS. REIMER: I do argue that, Mr. Hancock. COMMISSIONER HANCOCK: If we -- MS. REIMER: I in fact believe that that gatehouse in the middle of the road signifies this is a private gated community, that the public is not welcomed in. (Applause.) COMMISSIONER HANCOCK: And if we agree with that -- MS. REIMER: It looks exactly like every other gated community that I see as I drive down the road. I in fact, on my first visit, after having researched this for three weeks, drove right by, because I couldnwt conceive that that was the entrance to a state park. I do think that a private guardhouse in the middle of the road with a private guard in a uniform who stands outside there is not indicating that this is an entrance to state property. Thatws why I believe itws inappropriate. Itws a public road -- COMMISSIONER HANCOCK: Well, thatws extremely contradictory -- MS. REIMER: -- a state property -- COMMISSIONER HANCOCK: -- to the statews own policy of the operation of its own parks. That person who pulls in does not know if that badge belongs to a private individual or a state employee. And this is probably the best definition of splitting hairs Iwve ever seen. And what is happening here is the state is not willing to step up to the plate and take control of the legal issue here. You are saying county, we encourage you to spend your dollars and fight this in court. We will stand idly by on the sidelines and monitor this and interject ourselves where we deem appropriate, but in the end it~s your taxpayers, Collier County, that will foot the bill for this legal action. I think that is inconsistent with the statement you made that you have the right to improve the road and do, quote, anything you want. That is terribly inconsistent to make that statement when in 793 you said put the gate arms up. You didnlt say weTre bringing the bulldozer over tomorrow and destroying your gatehouse. MS. REIMER: Okay, let me address first the 1993 issue, which is the land management plan issue. What the homeowners do not tell you is that in fact, that land management plan went to the board of trustees, because this was a very controversial issue. And what the transmittal letter said to that land management plan was there is a big problem here with public access. We are going to allow this to continue, but we are going to insist that it be monitored, and it is going to be revisited. The land management plan does that every five years. In fact, you are responsible for submitting one shortly. There was never a concession by the state in 1993 that that guardhouse could stay in the middle of the road. COMMISSIONER HANCOCK: Nor was there action or -- MS. REIMER: It was that this -- COMHISSIONER HANCOCK: -- statement to the contrary. MS. REIMER: -- was -- we -- what the state was attempting to do was allow the local officials to deal with what we perceived to be a local problem. I think that that was an appropriate thing for the state to do. What happened? What happened is the homeowners put the gates down and refused to comply with the land management plan. Now, on the question of the litigation issue, the state is in fact a full party to the case in circuit court. We are going to be litigating those issues. We want to be litigating those issues on the side of the county. We are a full party. In fact, the county tried to get us out. They filed a motion to dismiss our claims, and we fought it and stayed in. This is not a situation which the state is not defending their rights. They absolutely are defending their rights here. COMMISSIONER MAC'KIE: We tried to get the state thrown out of this lawsuit, David? When was that? MR. WEIGEL: Well, let's go back on the history. When the lawsuitwas originally filed, the county was a party defendant, sued by the homeowners' associations. We filed a motion to -- COMMISSIONER MAC'KIE: Tell me what year we're in so far. '93, '95? MR. WEIGEL: No, no, it's probably about '96, I think. COMMISSIONER MAC'KIE: So I was on the board. MR. WEIGEL: But the county, at my behest, we filed a motion to include the state as an indispensable party, and they fought that and won and stayed out of the lawsuit for nearly a year. Later on then their position changed. They sued and got into the lawsuit and have been in it ever since. MS. REIMER: Lely also objected to the indispensable parties. It was not really the state. COMMISSIONER HANCOCK: If I may, the '93 agreement -- and I feel like your statement almost says, you know, gee, we should appreciate the tremendous leniency shown in '93. Like many people, I wasn't here in '93. I wasn't sitting in this chair, had nothing to do with this issue. And I appreciate four weeks you've spent on it. But they pale in comparison to the two and a half years that I've worked on this. So, you know, you have to give me a little bit of credit for understanding that -- you know, when you went back to '78, you showed me nothing new. I mean, I had to learn all of that to try and understand this issue to the best of my ability. But when you look at what was tried to be accomplished in 1993, we sit here today in 1998 with that in written form, accomplished in finality with penalties. The fact that it didn't occur in '94 or '95 I think is sad. And I think we all recognize, and as will the homeowners, that things should have happened differently then, but they didn't. And it wasn't until the last two or two and a half years of working on this, of everyone seeing where this is going, what the cost of this is going to be, what the likely outcome is going to be, that we came to a solution that accomplishes everything that was requested in 1993. I don't understand, then, if that was a good decision in '93, and if we can accomplish it in finality and be able to enforce that agreement, why in 1998 that decision is no longer valid and wewre going to go ahead and go to court and roll the dice and see if we come up winners or losers, when in fact all wewre doing is accomplishing what the state land management plan asked for in 1993. MS. REIMER: There was not a final decision made in 1993. And believe me, Mr. Hancock, I appreciate your efforts on this, okay? The General also sits on a board very similar to this when he sits with the Governor and Cabinet as the board of trustees of the Internal Improvement Fund. There is no politician who is as aware of the difficulties of trying to deal with a state access, state property issue. It is as difficult an issue as there comes. The board of trustees is confronted with these many times. We simply feel that the state has made a concession here. The state isasking simply move the guardhouse 20 feet. Simply -- COMMISSIONER NORRIS: Does that make any sense, though, really? I mean, come on. MS. REIMER: -- move it out of the site -- yes, I believe it does, because I see that there has been concerns over this guardhouse since the park opened in 1990. It has been an issue. It has been a flash point. It has been a place where the friction occurs. I think that any final solution, permanent solution to this problem, should involve removal of the guardhouse to the side of the road, allowing the homeowners all of the nighttime security that they wish to have, allowing them their place where visitors can get information, and not having the guardhouse there as, again, a private guardhouse and a public road which this commission would not approve of anyplace else in Collier County. And I donlt think that it should be approved here. COMMISSIONER MACIKIE: And why is it stupid for her to insist on her 20-foot issue and not stupid for us to insist on the 20-foot issue? COMMISSIONER HANCOCK: Because I donlt agree that itls an impediment. COMMISSIONER NORRIS: Well, look at it this way. I mean, youlre saying 20 feet and youlre happy, right? Twenty feet. So instead of someone coming down to the park and passing within a couple of feet of the guardhouse on the left side of their car, they will come to the park, pass within a couple of feet of the guardhouse on the right side of their car. Does that make any sense? MS. REIMER: I am saying that when you drive down the road, yes, it makes sense. COMMISSIONER NORRIS: It doesnlt. MS. REIMER: I am going to look down a completely unimpeded road. Yes, the guardhouse is an impediment. Yes, moving it to the side of the road will help solve the situation. I think itls the only thing that will solve the situation. I think the homeowners can get everything that they need, the county can get the things that it needs, the public can get the things that it needs by doing this. CHAIRPERSON BERRY: Ms. Reimer -- COMMISSIONER MACIKIE: What is that -- CHAIRPERSON BERRY: -- I have a question. In the State of Florida -- I donlt know if you know this answer or not. But in the State of Florida, how many public areas similar to this Lely Barefoot Beach area do you have where you have a park like this and a housing area in -- living together and trying to cohabitate an area? MS. REIMER: I personally donlt know of one. I know -- CHAIRPERSON BERRY: I donlt either. MS. REIHER: -- that Lely is bringing that exact issue to the Cabinet again, and we are looking at it very, very closely. CHAIRPERSON BERRY: And I think herein lies the point -- MS. REIMER: We have not. CHAIRPERSON BERRY: -- I'm not pointing fingers at anybody, nowhere. I don't want to -- I don't want anyone to think that. Butthis is an unusual circumstance, in my opinion, my limited opinion, where we've got housing, a housing area right -- and you have to go through this housing area to get to a park facility. Believe me, when you read through, as I'm sure all of us have up here over the years, I wasn't here during most of the time that this whole thing's been going on, but -- and I mentioned this to you yesterday when I met with you and Ms. Crane. Thank you very much for that meeting. MS. REIMER: And thank you. CHAIRPERSON BERRY: But at the same time -- and I brought it out at that time, and I'm still rather frustrated by it -- but where does the point of reasonableness come in here? And one of the things of the concern is the gatehouse is in the middle of this road, okay? It's been there. But you're also acknowledging -- I believe the Attorney General has acknowledged, or whomever, has said with proper -- they need some proper signage located out on the road. And I don't think anybody would disagree with that. I think that's an easy fix. MS. REIMER: Absolutely. CHAIRPERSON BERRY: And like I said -- I said this to you yesterday. I said if that's an issue, I would think within 24 hours we could have signs up out there to indicate the park entrance coming from both directions so that that is not a hassle. COMMISSIONER HANCOCK: We do have some, but we could have more. CHAIRPERSON BERRY: But we could have more. We could do whatever. I mean, bigger, you know, five, ten -- COMMISSIONER NORRIS: Overhead size. CHAIRPERSON BERRY: -- whatever. I don't care what it is. But -- so people would know exactly, number one, how to enter the park, and that yes, it is the park, and it isn't a private gated community, et cetera, et cetera. But my point here is the reasonableness. And I mentioned this to you yesterday, and this is where the frustration lies, that because of the uniqueness of this particular park -- and you're stating since you have been involved with the Attorney General, you're not aware of any other in the State of Florida that has this kind of situation. MS. REIMER: That's true. CHAIRPERSON BERRY: There may be, but you may not -- MS. REIMER: I do not -- I am not aware of them. CHAIRPERSON BERRY: -- you just don't happen to know about it. And if this is a typical problem. I really find this hard to believe that a 20-foot movement makes any sense. I mean, I could understand it if you said -- frankly, I could understand if you said abolish it. Okay, I'm not suggesting that, but that makes more sense than say now, you move this 20 feet and we're going to be happy. I just don't -- that doesn't even make any sense to me. So what's -- you're going to have a safety issue. Let's assume -- and you and I talked, or we talked yesterday, and you said you didn't care which side of the road they put this on, right, whether it's leftor right? Assuming they went to the right, so what are you going to do, have somebody come out in front of a car, walk around in front of the car and talk to the driver and then walk back around in front of the car and then let that car proceed? I mean, I -- I just for the life of me do not understand -- it just doesn't make any sense to me. And believe me, I'm trying to understand. I'm trying to understand the public access. And I'm saying, if there's signage up there that says guys, go for it, go on down to the park, have a good time, and if you know that park's there -- and I'll guarantee you, there's -- everybody up in that end of the county knows that park's there. Now, if I fly in from Stuttgart, Germany, I might not know, okay, when I come down 1-75 and I get off at Bonita Beach Road and I come in, I may not know it's there. But I'm going to know because there's going to be signs put up there, and it's going to tell me there is a park. You might want to print them in German. At any rate, it just does not make any sense to me that by doing these kinds of things, that that isn't going to cure the problem. And it does go back to the idea of we offered this a year ago, you all didn't take it, and by golly we're going to change our minds now. And that troubles me. That troubles me that it's either good -- it was either good a year ago in terms of the guardhouse issue, or it wasn't good a year ago. MS. REIMER: It was rejected a year ago. Generally in litigation -- and I understand you all aren't looking at this as litigation, you're looking at it as a public issue, as County Commissioners having to resolve things in a way that will satisfy the residents of your county. That is what you are charged with, with every single one of those. (Commissioner Constantine enters the boardroom.) MS. REIMER: I think my answer to you is that one of the things we did suggest was seeing if there was a feasible solution in which there could be a way to go around the guardhouse on the right-hand side. You have to remember, the State of Florida, the boards of trustees, the AG, we were not involved in any of the discussions with the developer -- with the -- excuse me, with the homeowners concerning whether or not it was feasible to do that. The homeowners actually suggested this originally. Then the homeowners came back and said no, it won't work. We were not party to any of that. And I think that we need to -- if this is going to be -- if what I'm suggesting is in fact a reasonable solution, and I believe it is, what I want to see is a straight road going down, that there's not an impediment, that this does not say I'm a gated community, that it says I am a road to a public park, come in. And if we can get the guardhouse off to the side of the road, then that's the statement that the road is making. You have pointed out -- no, I don't know about any other issues that look like this. But I can tell you that I don't want agatehouse, a guardhouse with a private guard in the middle of the road as a precedent if I ever have to deal with this issue again. And I'm sure as County Commissioners you can appreciate that, because precedent is the death of us all. And I do not want that. I mean, I feel that we should be allowed to see if there is in fact a solution there, to ask the homeowners to see if we can do this. We had a survey done. The state had a survey, we had the board of trustees come down at pretty good expense to come down, survey the easement, try and locate where the boundaries of our easement are. What do we have, what do we have to work with, what are the lands that we have to work with? We would like to see if that solution is out there. And if it is, we think it is absolutely the best solution for Collier County and for the state. CHAIRPERSON BERRY: Let me ask you one more question. A year ago this was put on the table and it was okay. And since that time it's not okay. During this period of time, did your office at any time contact the homeowners to try and negotiate on this particular thing? Why not? MS. REIMER: If I could have Diana Sawaya-Crane speak to you. CHAIRPERSON BERRY: Okay. COMMISSIONER MAC'KIE: For the record -- MS. CRANE: Still good morning. CHAIRPERSON BERRY: Good morning. Yeah, for a few minutes. Identify yourself. MS. CRANE: For the record, I'm Diana Sawaya-Crane, and I work for Attorney General Bob Butterworth. And the reason why we did not was because we were instructed that the negotiations were taking place between the county and the homeowners' association. COMMISSIONER HANCOCK: Well, that's simply not true. We talked on the phone, Diana. That's simply not true. MS. CRANE: Commissioner -- COMMISSIONER HANCOCK: You called me -- MS. CRANE: Commissioner -- COMMISSIONER HANCOCK: I was sitting at home. That's simply not true, because you and I had a discussion, and you told me where the Attorney General's position was on the guardhouse, and asked me to work with the homeowners' association to try and get them to give on all of the other issues. That was the last contact you and I had before today. That's exactly what has been going on. You told me what needed to occur. I went out, worked with the homeowners' association. They went back to their folks. It wasn't easy for these gentlemen to stand up in front of the homeowners there and say we want to give on these five points to get to a solution. And those things take time. Those things all occurred to this point today. So the fact that there was an outright refusal and we said we're not budging, or anyone said we're not budging on any of these items, I'd like to see that letter, because it doesn't exist. MS. CRANE: Commissioner, I recognize that this has been a realdifficult issue to try to work out, and I thank you for your efforts in trying to bring a solution that we can all live with. COMMISSIONER HANCOCK: And I'm sorry, likewise to you. I'm sorry to be -- MS. CRANE: Unfortunately, we're not there. COMMISSIONER HANCOCK: Well, you aren't. MS. CRANE: And we would ask you to not approve this settlement agreement, because this is a decision that a future board will have to live with. Just like you're living with the issues that were made several years ago that you are considering entering into the agreement because some provisions will be taken out, another future board will have to live with the decisions that you make today. And more importantly, the public will have to live with the decisions that you make today. COHHISSIONER HAC'KIE: What was the reason why -- ma'am, I didn't understand the question. This is probably not real critical on the merits of the case, but it has become important to me about how well we've worked together in this matter. As I -- if I were Commissioner Hancock and if I were these homeowners, I'd be extremely frustrated if what I got was a laundry list from the Attorney General's office that said these are our points of negotiation, these are the things we want changed. And then I spent a year getting those agreed to, and then you show up and say that the offer is no longer good because you haven't talked to us about it as you've gone along. That's what I'm hearing happened here. Is that what really happened? MS. CRANE: Well, Commissioner, what actually really happened is that in October of '97 we came and met with the homeowners. We said these are the things that we would consider acceptable. They said absolutely not, forget it, we're not going to do it. They said put it in writing, because we don't quite understand your position. So we did. COHMISSIONER HAC'KIE: And that was about when? MS. CRANE: October 31st. Halloween. Last year. And so we sent that letter out and we -- and making it clear what our position was. And because it had to be answered immediately, because it had to come to the board. If you'll recall, at the time -- we didn't find out about it until like four days prior to the agreement coming to the board for a decision. So -- COHMISSIONER HAC'KIE: But we got there. October 31st -- MS. CRANE: Right. COHMISSIONER HAC'KIE: -- '97. MS. CRANE: So then from October 31st until July of 1997 -- CHAIRPERSON BERRY: '98. MS. CRANE: -- I had conversations -- COHMISSIONER NORRIS: Of '98. MS. CRANE: -- of '98, I'm sorry. COHMISSIONER HAC'KIE: That's okay. MS. CRANE: I had at least three conversations with you,Commissioner. And we talked about all this and how important it was to move forward, because so much time had elapsed, and how it really wasn't doing the public any good to have this long period of time go by. And then come August, we get this letter. COHMISSIONER HAC'KIE: But isn't that what you thought was going on? MS. CRANE: And this is the letter -- no, ma'am. This is a letter from the -- from Collier County, transmitting a letter from the homeowners telling us essentially -- well, rejecting what we had suggested. COHMISSIONER HAC'KIE: And that was in July? MS. CRANE: That was in July. COHMISSIONER HAC'KIE: And so after July '- MS. CRANE: No, that was in Aug -- actually, we got it the -- August 24th. So almost September of this year. COHMISSIONER HAC'KIE: So what has happened now is in September and October they've changed their minds now and are willing to agree to what they previously rejected in August? MS. CRANE: They -- a week ago we received a new proposal that -- COHHISSIONER HAC'KIE: So did you withdraw -- like when you -- I guess you didn't feel the need to withdraw. MS. CRANE: We did, we sent a letter -- actually, what really happened was that we were told that Commissioner Hancock wanted to have this item on the agenda before he left office, and we were told by the lobbyists that the homeowners hired in Tallahassee that this would be on the 24th, October 24th agenda. Then we heard from other people that it may be on November 3rd, election day. So we felt that we had to get our letter to you, to the Board of County Commissioners, and we did on October 22nd. Subsequent to that letter from the Attorney General, taking into account the fact that the homeowners had rejected what we had suggested, it was that the homeowners on November or October, or whatever it was, the latest -- the latest draft was received by our office. COHMISSIONER HAC'KIE: So Tim, what happened in September and October that -- because it sounds like it was a no go deal until September and October. COHMISSIONER HANCOCK: No. No. COHMISSIONER HAC'KIE: And then everything changed. COHMISSIONER HANCOCK: And Mr. Korn can speak to this specifically. The proposal they received was not a rejection. It was taking into account what they had suggested, stating the issues of contention with their suggestions. COHMISSIONER HAC'KIE: It was a counter offer, basically. COHMISSIONER HANCOCK: That was my understanding. And I'd ask Mr. Korn to correct me if I'm wrong, but the proposal that was sent was not identical to previous proposals. There had been some modifications. COHMISSIONER HAC'KIE: And maybe I'm getting this toosidetracked. Maybe the procedure doesn't matter. COHMISSIONER CONSTANTINE: Could I just ask a point? To me it doesn't matter as much how we got here, because we could spend weeks talking about the history of this. COHMISSIONER HAC'KIE: Yeah. COHMISSIONER CONSTANTINE: In 19 -- November, 1995, Mr. Hazzard was here, we had an agreement that the homeowners agreed to that included moving the structure. That fell apart. I mean, we've had things that everybody has agreed to and not, or different portions have agreed to and not. Whether somebody did or didn't last month or last year or 10 years ago really doesn't matter. In front of us right now is an agreement that we should either give thumbs up or thumbs down, and in the sage words of Ken Cuyler, where we are is where we are. COHMISSIONER HAC'KIE: Where we are. COHMISSIONER CONSTANTINE: And regardless of how we got here, let's look at the merits of that agreement and vote on them on that agreement. COHMISSIONER HAC'KIE: I'd like to bring back up that, what was it, '95 agreement? Propose that one. COHMISSIONER CONSTANTINE: November, '95? I would love to see that agreement. COHMISSIONER HANCOCK: My issues are not with Ms. Crane or with the Attorney General's office. I was unaware that -- no one made it clear to me that there was a time line on an offer that had to be acted within. So from my standpoint, we continued to work towards something that would -- that the Attorney General's office would agree to that -- going back on the discussions 18 months ago. So we can talk about what -- whether it was a rejection or whether it was a counter offer or what it was. The bottom line is we sit here with a proposal today, and for the last hour we have not discussed that proposal. We've discussed the history of this thing, which more people on this board are aware of than you really, you know, want to be. So, you know, I just -- my whole thing, I was hoping actually that we would either take a look at this proposal or not and move on, one way or the other. The history course has been wonderful, but we've all had it before here. So -- COMMISSIONER MAC'KIE: And we need it every couple of years just to get a renewal. COMMISSIONER HANCOCK: Yeah, I didn't want to leave quietly, so I'm -- COMMISSIONER CONSTANTINE: We wanted Mr. Carter to hear the history. COMMISSIONER HANCOCK: So, you know, Commissioner Constantine, I appreciate your comments, and I'd like to move ahead. This board's going to take action on this or not. You know, once we hear from the public -- COMMISSIONER CONSTANTINE: How many speakers do we have? COMMISSIONER HANCOCK: -- and go from there. MR. FERNANDEZ: About 14 more. COMMISSIONER MAC'KIE: 147 COMMISSIONER NORRIS: Must be lunch time. CHAIRPERSON BERRY: Well, it is. It is noon, and we will take a recess, and we will be back here at approximately 1:15. (Luncheon recess.) CHAIRPERSON BERRY: Okay, we will reconvene the Collier County Board of Commissioners' meeting, and we are still on the item of the Lely guardhouse controversy. COMMISSIONER NORRIS: What controversy? CHAIRPERSON BERRY: The discussion pertaining to. And I think we're at the point where we're going to listen to public speakers on this issue. MR. FERNANDEZ: Madam Chairman, the next two speakers are Lorene Wood and Gary Kinsella. CHAIRPERSON BERRY: Okay. I'll tell you what, to facilitate in the time matter, if the first speaker can approach the podium and if the second one would get ready and come over and sit over here in that first row, so it -- just from a time-saving standpoint. You don't want to speak, Gary? Okay, who's after Gary then? MR. FERNANDEZ: Then Tony Pires. CHAIRPERSON BERRY: Okay. Tony, you want to come on up and just get ready to speak? And the first speaker is who? MR. FERNANDEZ: Lorene Wood. COMMISSIONER HANCOCK: What was that name again? CHAIRPERSON BERRY: Are you sure it's not -- is it Emily Wood, or Emily Haggio? COMMISSIONER HAC'KIE: Haggio. MS. HAGGIO: No, Lorene had to leave, and so I think I'll be speaking for her. COMMISSIONER NORRIS: I don't think so. I don't think so. MR. FERNANDEZ: Okay, so she's not here? COMMISSIONER HAC'KIE: John, you're not in charge of that. MR. FERNANDEZ: Emily Haggio is the next one. MS. MAGGIO: You want me to speak after -- CHAIRPERSON BERRY: Okay, is Emily after -- MR. FERNANDEZ: After Mr. Pires. CHAIRPERSON BERRY: After Mr. Pires, okay. Tony, you're the first one up. We'll get there. Don't -- just be patient. MR. PIRES: I hope that wasn't eating into the five minutes. CHAIRPERSON BERRY: No, it's not, it's not. Not at all. MR. PIRES: Madam Chairman, members of the board, my name is Anthony Pires, Jr., of the law firm Woodward, Pires and Lombardo, representing Emily Maggio and I represented her in other issues before the board involving this guardhouse issue in the past. I guess from my perspective, aside from all the discussions and debate you've heard, I have a different perspective of this proposed agreement. We believe and we're firmly still convinced, as we believe your professional staff is convinced, that the Code Enforcement Board in this case made the wrong decision. You as a board properly, we believe, and gratefully appealed that decision to the circuit court. We don't believe that the cost will be $250,000 of county attorney's staff time. I find that difficult to believe. And if you prevail, the guardhouse goes away. We think that's a great opportunity and a great goal to try to achieve. We believe, as we believe your staff believes, the evidence clearly and unequivocally showed -- COMMISSIONER HANCOCK: Could you say that again? You lost me on a believe there. MR. PIRES: I'm sorry? COMMISSIONER HANCOCK: We believe. MR. PIRES: That the evidence clearly and unequivocally showed -- COMMISSIONER HANCOCK: Never mind. MR. PIRES: -- that the property with a guardhouse and gate at issue is located is on property zoned agricultural. Also, that the property with guardhouse and gate is located is clearly not tract A within the Lely Barefoot Beach PUD. We believe the property owner, in various lawsuits they've filed against others individuals within that area or near the vicinity, have alleged that tract A is where this -- the gatehouse complex is located. And the guardhouse is indicated as being a separate property. There's only one reference to a gatehouse complex in the Lely Barefoot Beach PUD, that being on tract A, and those references being in section four of the PUD. And also, there's language that says while portions of the security gatehouse facility on tract A may extend into and over Lely Beach Boulevard, the public access through or around the entry gate shall be permitted as directed by the public agencies which operate the public facilities. It's a control issue. The state has indicated to you that their direction is that this guardhouse needs to go, that there is public access, and the entry gate is only that as to tract A and not in the middle of the road on tract R, which is the one that's in dispute. The settlement agreement, we believe, is an attempt, without going through the appropriate hearing and review process before the Planning Commission and the County Commission, to do one of two things or multiple things. One, amend the agricultural district zoning regulations to allow a guardhouse as a permitted principal use; or, amending the Lely Barefoot Beach PUD to allow two guardhouses, a guardhouse on tract R and in this case, you'd also have to amend the boundaries of the PUD to pull in this property, and as well as having the gatehouse that exists on tract A. Furthermore, the proposed settlement agreement weighs or releases any present or future claims challenging the current guardhouse location, and basically allows the property owners' association andmaster association the unfettered unilateral right to occupy, operate or approve the guardhouse. We believe thus that the county would be entering into an agreement, because the county has agreed basically to change the zoning regulations by this agreement; that the county would be entering into an agreement that restricts its decision-making authority on development issues, would thus be effectively contracting away its exercise of its zoning authority and its police power; and by entering into this agreement without complying with a more stringent notice and hearing requirements and voting requirements for rezoning, result in a void and ultra viresed agreement. There are recent court cases in the State of Florida that address the issue with regard to entering into a settlement agreement in zoning context. In my opinion -- and your county attorney may disagree -- my opinion is that if the board is proposing to enter into this settlement agreement, it is not a final agreement until such time as there is the due process, public notice, public hearing requirements that are complied with by having it reviewed by the Planning Commission and by having a super majority vote of this commission to either change the agricultural district regulations and/or to amend the Lely Barefoot Beach PUD to specifically allow this as a permitted use. Therefore -- and one other point. The option agreement that that declaratory judgment action is predicated on. There's a couple of documents. One is the declaratory judgment -- the option agreement. That specifically has never been assigned to the property owners' association, and it says it cannot be assigned without the prior written consent of this board. Lely Development Corporation is a holder of that option agreement. I'm not further aware of either of the use access agreements being assigned. There's no allegation in the lawsuits that those have been assigned to the property owners association. We therefore respectfully urge this board to not enter into the settlement agreement, to vigorously pursue the appeal of the Code Enforcement Board action, to vigorously defend the declaratory judgment action, including -- CHAIRPERSON BERRY: Go ahead. MR. PIRES: -- and work cooperatively and together with the office of the Attorney General in those endeavors to protect the public's access to its facilities. CHAIRPERSON BERRY: I have a question for you. MR. PIRES: Yes, ma'am. CHAIRPERSON BERRY: I believe yesterday when I met with the representatives from the Attorney General's office, they talked about moving the gate. They mentioned -- you know, they didn't care if it moved left or right. What exactly would that have in what you have just said (sic)? In other words, sorting through all the -- MR. PIRES: I still think it would require -- CHAIRPERSON BERRY: -- the stuff that you said. What effect would this have, if you were to move it from one side or the other? MR. PIRES: From its current location? CHAIRPERSON BERRY: Right. MR. PIRES: The property -- and I have the zoning map, the official zoning map for the county. It shows that property as being zoned agricultural ST. So I think regardless, you still have to go through a zoning process to amend the district regulations to allow a gate in this case as a permitted principal use or amend the PUD to pull this sliver of property into the PUD and further amend the PUD regulations to allow for a second gatehouse facility. CHAIRPERSON BERRY: So this was never done originally 10 years ago? MR. PIRES: No, ma'am. COHMISSIONER HAC'KIE: Which is the point, for me. Which is the point about how although this seems like the great compromise, and it is a tremendous improvement over where we have been, it ignores the fundamental fact that it's in the wrong place. We will be doing something illegal if we allow it to remain. That's the key point. If you go back to that point over and over -- and I don't like it any more than anybody else. I wish I could wave a magic wand. But the reality is what it is. The legal reality is what it is. CHAIRPERSON BERRY: But why -- Commissioner, that has not been a point of negotiations, even with the Attorney General's Office. Why not? COHMISSIONER HAC'KIE: Because that's a county issue. That's a county law issue, that's not a state law issue. The state law -- CHAIRPERSON BERRY: But I have to tell you, as I sit here today COHMISSIONER HANCOCK: Did I hear anybody agree with that, first of all? CHAIRPERSON BERRY: As I sit here today, this is the first time that I have heard that this is the issue. COHMISSIONER NORRIS: Well, wait a minute. That's his opinion. What about our county attorney's opinion? CHAIRPERSON BERRY: Okay. Well, I mean, this is why I'm just questioning. I'm not trying to badger you, Tony. You had just mentioned this and I'm trying to assimilate all this kind of thing, so COHMISSIONER CONSTANTINE: And in fairness, Commissioner Berry, I don't know if we have -- apparently we have not spoken about that particular thing -- CHAIRPERSON BERRY: Right. COHMISSIONER CONSTANTINE: -- in the past 24 months. However, that has been the crux of discussion here, at least two or three times. And whether Mr. Weigel agrees or not, I don't know, and he can tell us himself. CHAIRPERSON BERRY: Okay. COHMISSIONER CONSTANTINE: But that has been a legal issue that's been discussed repetitively since -- certainly since 1992 when I was on here. CHAIRPERSON BERRY: Okay. Thanks, Tony. MR. PIRES: Thank you, Madam Chairman. MR. FERNANDEZ: Next speaker is Emily Haggio, and then Jan Wall. MS. HAGGIO: Good afternoon, commissioners. For the record, my name is Emily Haggio and I live in Little Hickory Shores, and I'm here today representing the Bonita Shores and Little Hickory Shores Improvement Association, and the Naples Park Area Association, as well. And I guess the property owners of Naples Park, their representative had to leave, as did Jack Pointer. Yes, this has always been a PUD violation, a zoning violation. Reducing this matter to a question of what is to be gained by moving a structure 20 feet is to trivialize the issue. The guardhouse is a violation of the PUD documents and zoning, as well. Allowing it to remain in the middle of the road is a decision that will come back to haunt us again and again. The Lely guardhouse is not the entrance to the park. The entrance to the park is one and a half miles down the road. This park was, under the purchase contract, to be operated like every other county park facility. What other county park facility has a booth and a ranger stationed one and a half miles from its actual park entrance to advise visitors of parking fees, parking availability, the tennis courts are all taken, whatever? I have heard it said that the provision for a ranger in the guardhouse has been withdrawn, as also the parking -- number of parking places, et cetera. Make no mistake, these things are not gone, they're only on the back burner and will resurface in the future. They always have. The management plan has one purpose only and that is to set down the rules by which the park is operated and maintained so that the public is assured of getting the highest and best use of its property, while the resources are protected. The management plan is not and was never intended to be a promise, either to the residents of Lely or the public, that there would be a certain amount of parking places or facilities. That plan is to be changed on a regular basis, depending on the review. Without the cooperation of the public in relocating the original easement, there would be no Gulf front homes. Without the cooperation of the public in allowing gates that can be closed off to the pub -- close the public out during certain hours, there -- what kind of security would they have at night? There is no free lunch. The public got something of equal value in return. What they got was an easement for unrestricted access. The county also has an easement for public road surfaces, and I'm quoting from the actual easement. For public road purposes under, over and upon Lely Beach Boulevard, to pass and repass, et cetera, et cetera. No mention in either of these easements of a guardhouse. Regarding the cost of litigation, I would just like to say this: I was in the court the day when Mr. Hazzard, as their attorney, told the judge he didn't want an administrative hearing before the county manager, he didn't want a Code Enforcement Board hearing, because hefelt it was a slam dunk and he would get nowhere. In other words, they intended to appeal. If the ruling had been the way it should -- the way we feel the Code Board should have ruled, you would be in litigation anyway. So what the cost is is a moot point. The real question is does this county board, as stewards of these public trust lands, feel that it is a worthwhile endeavor to go to court to do whatever is necessary to protect the public's access and the public property rights to a multi million dollar public facility? That is the issue. And I thank you for your attention. MR. FERNANDEZ: Next speaker is Jan Wall and then Kim Porter. MS. WALL: I'm Jan Wall, president of Bonita Shores, Little Hickory Shores Improvement Association and resident of Bonita Shores, Collier County. This letter is from my husband and I, and has been sent to all the commissioners. We have a concern about the Lely Barefoot Beach guardhouse structure. It did cause us to hesitate going into the park about four years ago when we were tourists. We rode our bicycles into the park instead of taking our car, because we didn't think that we could enter the area, being a non-resident of Lely. Since that time we have purchased a home in Bonita Shores. This is the first subdivision just east of the park. Spending much time in our front yard, we have had visitors in our area stop and ask us about the access to the park. Therefore, we feel the guardhouse must be relocated to prevent further confusion to the access of this beautiful public park. Another concern we have are the speed bumps on this 15-mile-an-hour passageway to the park. They are much too high. We hope that EMS never has to come to the park for one of us, especially if a few minutes might make a difference. They'll never make it. And if they did, what an awful ride out over there over those huge bumps. Therefore, please let Collier County run the park, not the Lely residents, and put the guardhouse in their own property, tract A, rather than in the public right-of-way. A settlement agreement that follows the outline in the Attorney General's November 6th letter to you would be more than acceptable, because it is fair to both parties and it respects the rights of both parties. If these -- if those terms are not good enough for the Lely homeowners, then let's let the judge decide what is lawful and right. Thank you. MR. FERNANDEZ: Next speaker is Kim Porter and then Leon Eisenbud. MS. WALL: Yes, I have Kim Porter's letter. She was unable to stay. MR. FERNANDEZ: Okay. MS. WALL: She had good morning. She didn't know it would be good afternoon. My name is Kim Porter, I am a resident and registered voter in Bonita Shores, Collier County. I find it hard to believe that for nearly 10 years a small groupof people have been allowed to control who drives on the streets of Bonita. I would like to know what would happen if I were to put up a guardhouse on Bonita Beach Road near my home. I don't believe that guardhouse or I would be there for long. If someone could just explain to me how in America a group of people have been allowed to put up a 10-year roadblock on a road leading to public property just because they have the means to do so. Actions are either right or wrong. This is wrong. Thank you for your time. MR. FERNANDEZ: Next speaker is Leon Eisenbud, and then Sally Barker. MR. EISENBUD: My name is Leon Eisenbud. I think everyone that's -- each of the commissioners and I have corresponded on occasion. I'm a retired dentist, and Naida and I moved to Barefoot Beach almost 11 years ago. This is either my fourth or fifth appearance before the board on the same subject. And, you know, I practiced dentistry and I had patients with chronic diseases, and I think I've told you in the past that this is a chronic disease, and we really do have to find a cure to prevent any further recurrences. Some months ago I made a presentation to this Code Enforcement group that's been referred to. It was a specially constituted group of five appointees, a group of impartial individuals who listened to everyone and concluded that access to the preserve was not impeded. At that meeting I demonstrated with photographs and statistics that the preserve is very busy and it serves an educational and recreational function of great value to the community. Since the committee voted five to zero that access was not impaired, I was disheartened, disappointed to hear that the presentation and the deliberations at that time were all in vein. The issue is back. Here we are again. You've heard it all before. I have nothing to tell you you haven't heard before. And you must be sick and tired of it. I certainly am, and so are all the residents who have been harassed about this now for the 10 years that we've lived there. I would like to try to bring this subject down to earth. You know, we're up in a balloon here. I'm not an attorney. Much of what has been discussed is a total mystery to me and in fact, much of it is a bore. You've heard recently about something that went on in Washington D.C. in the White House, and as it approaches impeachment proceedings, you heard a new term which I like, proportionality. I ask you to please look at this issue with some sense of proportionality. As you get older -- and I'm old enough to be able to say this -- you don't find that absolutely every single rule has to be adhered to without deviation. There is room for an exception when the circumstances are such as to dictate that an exception be made. This is one of those situations. I want to say that if there are concerns about intimidation and access -- and we hear those words all the time -- those concerns are not shared by the thousands of visitors to Barefoot Beach Preserve. This entire gatehouse issue is, to tell you the truth, fabricated. In fact, the suggestions from Mr. Butterworth, reported in the Sunday news is so impractical and so undoable and so unnecessary as to be amusing to me. Now, why am I able to say all this with such a spirit of authority? Well, because I spend every single day at Barefoot Beach. Every day. I'm coordinator of the Friends program. If you haven't visited us yet, please do. I'm at the Preserve for hours. I'm in daily contact with the rangers, the visitors to the park and the volunteers who built and staffed the learning center, the butterfly garden, the nature trail and all the rest. This is not intended to be a testimonial to Friends. Friends has had its own accolades. But these 400 plus individuals living on both sides of the gate, not just at Barefoot, but half of our membership lives in Estero and San Carlos and North Naples. These are the people that you should talk to about intimidation and access, not a few politically active people who have made this a life work and have no firsthand knowledge about the Preserve. I do not see these people at the Preserve. They are not the people who use that facility. And one fact stands out undeniably, and that is that everything at Barefoot Beach is fine. And what did Bob tell me, everything's dandy at Kansas City? I've forgotten exactly how it goes. Including the entrance at Bonita Beach Road. It is heavily utilized. During season the parking lots are full. And the excess cars are parked along the side of the road. I have never seen a situation right at the height of the season where anyone was ever turned away because of absence of parking. With the four lots and the parking along the road, you can accommodate everybody. If that problem became serious enough parking, fine, build another parking lot. It's unrelated to this issue. And last season the learning center alone, just learning center, logged 9,198 visitors from almost every state in the union and many foreign countries as well. So you see, if there were an access problem, we would not be having that problem. I need just about one more minute. CHAIRPERSON BERRY: Okay. MR. EISENBUD: Parks Department questionnaires show clearly that beach goers are imminently satisfied. One complaint has been received in the last three years. And the reputation of the preserve has spread. We've had two delegations, one from Tiger Tail and one from Sugden specifically to see what we're doing that has made everybody so happy at Barefoot Beach. Isn't it sad that the gatehouse issue has cast such a pall over the Barefoot Beach Preserve? We love it when the place is busy. We're proud when over 100 people show up for a Saturday lecture. And I repeat, no one is ever denied admission. The state and county, if you'll forgive me, folks, should stop all this bickering and all this litigation, count your blessings, leave things just as they are, and save a pile of money in the process. Now, let me conclude with just one minor thing that, however, has an additional influence over this situation. We're in the midst of a wave of burglaries and vandalism. Bonita Springs is no longer a sleepy little town where the doors are opened and unlocked. Two weeks ago the main exhibit cabinet in the learning center was vandalized. The plexiglass top was torn away, the fire extinguisher was damaged. Not long ago a precious collection of sharks teeth were stolen. Recently both wheelchairs were damaged beyond repair. The Preserve is wide open, vulnerable at night. The gatehouse provides for the county and for friends the only protection we have. It's vital that it remain. So as you see, I've tried to put a positive spin on this and bring this down to reality. This whole argument is ridiculous, really. I mean, if it is against the law, there is always an exception to the law if it's reasonable to make that exception. Come and see for yourself what's going on at Barefoot. The butterflies are thriving and the goldfish are happy. We have flowers all about us. I'm only asking for one thing: Please, commissioners, people from the state, leave us alone. Let us enjoy this wonderful facility. Let the people come in and out the way they are now without being bothered, and drop the whole thing. Thank you. CHAIRPERSON BERRY: Thank you. (Applause.) MR. FERNANDEZ: Next speaker is Sally Barker and then Marjorie Ward. MS. BARKER: Good afternoon, commissioners. For the record, my name is Sally Barker. I'm chairman of the Property Owners' Associations of North Collier County, also known as the Second District Association. And I think that's the first time I've said it all in one breath. The -- on August 17th, 1995, the board of directors of the association adopted the following resolution. This resolution has not been rescinded and I've been directed to read it again to you this morning -- or this afternoon. Whereas, the Barefoot Beach Preserve has been developed by Collier County in cooperation with the State of Florida for the enjoyment and recreational pursuits of all citizens. And whereas, public access to the Preserve has always been clearly defined through a public easement that extends from Bonita Beach Road to the limits of the Preserve itself. And whereas, a gatehouse maintained by the Lely Barefoot Beach Community Association has consistently violated provisions of the land management plan developed by Collier County and the State of Florida, which mandates that both gates controlled by the gatehouse be kept open during daylight or Preserve hours. And whereas, the guardhouse also violates the Lely Barefoot Beach PUD and amendments thereto. And whereas, the county has had adequate time over the past year to address this beach access controversy and put it to rest. Be it hereby resolved by the board of directors of the PropertyOwners' Associations of North Collier County, also known as the Second District Association, that the Board of Collier County Commissioners be requested to immediately begin enforcing laws and regulations as they presently exist by mandating unimpeded access to all Preserve users during park hours, and removal of the illegal gatehouse without further delay. Thank you. MR. FERNANDEZ: Next speaker is Harjorie Ward, and then Donald Dawson. MRS. WARD: Good afternoon, commissioners. For the record, I'm Harjorie Ward, representing CABB, a bi-county association of approximately 1,700 members. We've been involved with Barefoot Beach since 1986. We had worked to have the state and later Collier County purchase additional property for the public park. The day after the Preserve grand opening, the security guards charged one dollar admission for the public to go by the guardhouse. This was done without county approval or knowledge. When your Collier County Enforcement Board met in February, 1997, your own parks director, Gary Franco, went on the stand, verified the fact that he had received hundreds of complaints of people that had been stopped, harassed or hassled when passing the guardhouse to the Preserve. He was given the responsibility by the state to report all such infractions to them. So when people reported them to us, all such written reports were forwarded on to him. I have in my hand just a few of the complaints that were sent. For almost one year one couple who go to the Preserve daily kept track of the position of the gate, which was to be up during park hours. CHAIRPERSON BERRY: What year was this? MRS. WARD: Instead, they were consistently down -- COHMISSIONER HAC'KIE: Marge? MRS. WARD: -- and the people were stopped -- COHMISSIONER HAC'KIE: Harge. CHAIRPERSON BERRY: What year was this again? MRS. WARD: What? COHMISSIONER HAC'KIE: What year. CHAIRPERSON BERRY: What year? MRS. WARD: What year? February, 1997. CHAIRPERSON BERRY: Okay, thank you. COHMISSIONER HAC'KIE: That's when this person said that there were consistently problems with the gate? MRS. WARD: This -- I'm saying that before the Code Enforcement Board, Gary Franco was one of your witnesses, and he had been given the responsibility several years before that to report all such infractions to the state. And that's why he verified the fact that there had been hundreds of complaints that he had received during that -- during the period that that was going on. And these are some of the complaints which had been sent by us to Gary Franco, which substantiates some of the -- just a few of thecomplaints that have been received. In fact, for almost one year during this period of time, one couple who go to the Preserve daily kept track of the position of the gate, which was supposed to be up during park hours. Instead, they were consistently down, and the people were stopped, questioned, harassed, et cetera. Now, more recently the News Press -- and this is dated Hay of 1998 -- printed a story wherein people who were looking for Barefoot Preserve turned around and left when they saw a guardhouse in the middle of the road. So this is not just something that happened in the past. COHMISSIONER HAC'KIE: Would you share a copy of that, Harge? Sorry, Dennis, I didn't see that, but -- MRS. WARD: I have a copy for you. COMMISSIONER MAC'KIE: Thank you. MRS. WARD: The majority of the people who have been intimidated by the guardhouse or harassed by the guard have never complained in writing. For instance, a Lee County Commissioner and his wife were looking for this beautiful advertised beach. They made a U-turn when they saw the guardhouse. And a TV reporter told me, quote, I can't go in there, it's private property, unquote. I've been told also in good authority that a realtor and/or a developer, when selling property -- and this is back some time -- assured people that with their purchase they would have private beaches. Now, these people have quit sending in complaints because they felt that it had fallen on deaf ears. I mean, this had been going on for several years. In May of 1993, we traveled to Tallahassee to testify before LMAC -- that's the Land Management Advisory Committee -- when they were formulating the management plan. The then president of the homeowners' association said to the board, quote, the dumbest thing I've ever heard of is the state putting a park at the end of a private road and our development, unquote. Those in the dais looked down at us with an expression, where'd he come from? Because all of us knew that the state owned that property before the first house was ever built. Through the 10 years this fiasco has been going on, I've kept very quiet about certain activities that some of these people have engaged in with respect to our association. As presiding officers of CABB, David and I have been invited out for coffee on several occasions to try to influence us to abandon our quest for proper treatment of the general beach-going public. The real big one came when a man phoned repeatedly, not mentioning where he lived. Under the guise of wanting to learn more about CABB, he came to our meeting. He brought boxes of donuts for refreshment time, and subsequent phone calls continued. Commissioner, I was interrupted a couple of times and I had this dOWD '- CHAIRPERSON BERRY: Nobody's stopping you, Marge. Go on. MRS. WARD: Okay. I just wanted to be sure. CHAIRPERSON BERRY: I'll take care of it. Okay, go ahead. MRS. WARD: I thought he was being naive. I thought he was a prospective CABB member. He invited us to go out to dinner. And then he offered to invest his own money on CABB's behalf for which CABB would earn interest enough to operate the association. Now, I kind of think that that's kind of known as bribery when you find out that he's not only a member of the Friends and a resident inside of Barefoot, but very active in their homeowners' group. He finally admitted his purpose was to have us stop objecting to the guardhouse. If they are right and within the law and legal agreements are on their side, what was the point in his courting me? Now, I ask you, after the history of this case, after the threats in this very room of past presidents of their associations that have -- of swinging pointers that almost took off Commissioners Constantine's nose, after all the contracts that have been made and subsequently broken, how can you trust anything that they have to say? In this very room they said, and I quote, we will never take down the gates nor the guardhouse, unquote, regardless of what anyone tells us to do. Are they not subject to the same rules and regulations that the rest of the human race is made to uphold? As long as the guardhouse sits there illegally, as long as they are in the driver's seat, there will never be peace in Mudville. They will continue to come back petitioning to erode the rights of the public. History has shown over a 10-year span that they will not give up, as long as they have their foot in the door or the camel's nose under the tent, however you care to use it. The guardhouse must be relocated to tract A. Down with the current guardhouse as soon as possible. We do back completely the Attorney General's input. Commissioner Hancock, we'd like to remind you of a letter which was -- this is the original of it, dated May 10th, 1996, that you sent to David and I in care of the Citizens' Association of Bonita Beach in which you stated, quote, the existing guardhouse must be removed and the only question remaining is where the new guardhouse can legally be constructed. COMMISSIONER HANCOCK: You want to read the sentence before that, Marge? MRS. WARD: Pardon? COMMISSIONER HANCOCK: You want to read the sentence before that, please? MRS. WARD: The sentence before that? COMMISSIONER HANCOCK: Uh-huh. MRS. WARD: As it says, as you -- let's see, I forget the whole sentence. "We all understand that the development documents allow for a gatehouse facility within tract A of the Lely Barefoot Beach PUD. That's in -- within PUD tract A. The guardhouse sits in tract R." Okay? So then you went on -- and I will pass a copy of these around to you people. Where was I? Your executive summary today, Commissioner Hancock,to cover the status of the Lely guardhouse controversy, does not reflect your prior statement. COHHISSIONER NORRIS: Madam Chairman, could I ask that we try to hold our speakers to the allotted five minutes? MRS. WARD: The -- CHAIRPERSON BERRY: How much more time? MRS. WARD: One second. I just want to state one other thing. There's -- in respect to someone who spoke just before me, there's many of the Barefoot residents who are also members of the Friends of Barefoot, which is a nonprofit 501C-3 organization, which they founded. Some of those members have testified at Code Enforcement hearings at the, LHAC meetings, and before the County Commission. It's wonderful they're so proud of their organization, and well they should be. However, using the Friends group to obtain special concessions from the county or state, or to advance homeowner private agenda, is actually a violation of their nonprofit status. Thank you, on behalf of the existing or the prospective beach goers and their rights. And I have here what can be passed out, is the things to which I made reference. I have a packet for each of you. CHAIRPERSON BERRY: If you'll give those to Mr. Weigel, please. MRS. WARD: Yeah. CHAIRPERSON BERRY: Thank you. MR. FERNANDEZ: Next speaker is Donald Dawson and then Bill Hazzard. MR. DAWSON: Hi. I'm Don Dawson. I live in Bonita Shores. I was here standing, talking in 1990, '92, '93, '94. Here it is 1998, going to be 1999. I don't want to offend you as a County Commission. Please don't take anything that I say that is offensive. But I'd like to stretch a few things. Back in 1990, all the things that were said here today were said then. And the County Commission did not squash that then or do away with Lely Barefoot Beach gatehouse. They didn't have the guts. And I said back then, I said there's one thing that I ask that your conscience will do, and that is protect my right and the citizens of Collier County the easement that is there, the right to use that unimpeded. That gatehouse is an impediment to my going to that beach. I have been stopped at that gatehouse, I have been told that I could not go into there, repeatedly. Now, I'll admit that it was long ago, and I haven't gone there much because I put a swimming pool in, and the newness of that swimming pool hasn't worn off yet. But the other thing, that Lely Barefoot Beach is not to be trusted. I think, Mr. Eisenbud, I wish I had the authority to come out and read the minutes of the meeting that he talked and how he talked at all of these meetings. He has done a complete flip today. But very smooth. The other thing that they did that I thought was a great expense to this county, you talk about money, Lee County, Collier County, tried to put a beach there at the corner of Hickory and Bonita Beach Road. They spent money. They come up with plans. And that was going to be a beautiful beach. But there was a reverter clause, and the Lely Barefoot Beach people came and said if you put another entrance there, the property on that eastern section will return. And so they -- Collier County would lose the right to use that. So they have not been in the interest of the public of Collier County, all the citizens. To say that Delnor-Wiggins and compare that with Lely Barefoot Beach gatehouse is ludicrous. And I say this because I ask you two questions. Who owns Delnor-Wiggins State Park? And then -- COMMISSIONER MAC'KIE: We do. MR. DAWSON: -- I will ask you, who owns the gatehouse at Lely Barefoot Beach? Does the state own that gatehouse? No. So to even compare that is not right. It's not a good example. And so I'm here speaking today -- I haven't felt that good the last couple of days, but I'm out to protect the rights of people. And that is an easement and it should be impeded (sic). And I don't care where you go in Collier County, in the State of Florida, you cannot impede that right of the public, or a person that owns that property in the rear. And so that's what you're voting about. All of these that are innuendos about them being nice, trying to cooperate now, look at how many years it took them to come and cooperate a little bit. It took all these meetings, it took all of this expense of people. Not only of the County Commission and the staff, but all of us. It costs us money to come down here. And we've been doing it. We've come down here with a packet of names like that, a petition to do away with that gatehouse, and it hasn't been done yet. I believe in my heart if the state had been here in 1990 and said the things that they said here today, that County Commission would throw that thing out instantly and they'd say move that gatehouse. Now, about the gatehouse, sure, nobody wants the expense of moving something. But it does impede. You've heard testimony, the County Commissioners before you, that people have been inhibited from going down there because of that gatehouse. When you see that gatehouse -- go to Audubon, go anywhere in Collier County, where are all the gatehouses in a gated community? They're all in the center. And that right there, that perception of the public of a gated community is that gatehouse in the middle of the road and that is an impediment in itself, and it's not right. It's wrong. And I urge you and I plead with you, protect the majority of people's rights. This is not just a gatehouse, this is the rights to the public. That's what you're voting for today. Nobody wants to see anybody hurt in any way. And so I ask you and I thank you for your time. I wish I had more time, I could talk more extensively. I even think about the bumps. I remember meeting -- coming here. I was a volunteer fireman in Old Greenwich, Connecticut for 17 years. I remember testifying here that that was a hazard. A bump is a hazardto a fire engine. I can remember men falling off of a fire truck because -- CHAIRPERSON BERRY: Mr. Dawson, that's fine. I appreciate your experience, but your time is up. MR. DAWSON: Okay, thank you. CHAIRPERSON BERRY: Thank you. MR. DAWSON: And I wish I had some more time, because 10 years. One more last thing, if I may -- CHAIRPERSON BERRY: I'm sorry -- MR. DAWSON: Okay. CHAIRPERSON BERRY: -- that's enough. MR. DAWSON: Abstain from voting today, Mr. Hancock. MR. FERNANDEZ: Next speaker is Bill Hazzard, and then Jason Korn. My name is Bill Hazzard. MR. HAZZARD: Thank you, Madam Chair, members of the commission. I'm with the law firm of Asbell, Coleman and Ho. And for several years I've represented the homeowners at Lely Barefoot Beach. I have what I consider to be the dubious distinction of I think being the only person in this room who sat through every minute of the four days of the Code Enforcement Board hearings on this matter. And my reason for being here today is to explain to you some of the items and make some clarifications concerning what went on there. And Commissioner Berry, this particularly directs to your questions and your surprise of the statements that Mr. Pires made. First of all, by way of background. The county cited the homeowners with two violations, and brought those charges in front of your Code Enforcement Board. The first violation charged in essence what Mr. Pires said, that the guardhouse is not properly located pursuant to county codes, not properly located pursuant to the PUD. Your Code Enforcement Board heard extensive testimony on that and voted four to two in favor of the homeowners. They heard extensive testimony pro and con. They heard from two experts that the homeowners put on, Mr. Dudley Goodlette, who was qualified by the board as an expert in land planning, and also, Mr. Bob Lockhart, who was qualified as an expert and is a civil engineer. Both of whom testified that the guardhouse is within the PUD. They heard contrary testimony from members of county staff but ultimately voted four to two and found that -- and sided with the homeowners and against the county staff in the first violation. Second, the second violation charged a blanket charge that the guardhouse impedes access to the Preserve. The county proffered into evidence at least three easements, is my recollection. They showed easements and they showed rights under those easements. Ms. Ward, who spoke to you shortly ago, testified in front of the Code Enforcement Board, and she testified that -- she testified in January of 1997, and she testified that for the previous year to year and a half, prior to her testimony, that the gates at the Barefoot Beach entryway had been up and that there had been no reported problems with access. Your Code Enforcement Board voted six to nothing in favor of the Lely Barefoot Beach residents, and determined as to violation number two that there was no impeding of access to the Preserve. Instructive in that hearing, I think, is the testimony of the county's own expert, a professor named Starnes, a professor emeritus, from Gainesville. Professor Starnes, to whom the county paid $125 an hour, came and visited on four different occasions. He was here in July, October and December of '96, and he was here again in January of '97 when ultimately he got to testify. And on each of those four occasions he visited Lely Barefoot Beach. And his testimony was that on each of those occasions he drove right on by the guardhouse and went down to the Preserve. On two of those occasions, there wasn't even a person sitting in the guardhouse. Let me read to you just briefly from his testimony. I asked him, is there anything inconsistent with gates being open all day long, as you see it, in this gated community with others that you're familiar with. And his answer was, I don't think there's anything inconsistent with it. I think the fact that it is a gated community, that boulevard serves a public facility at the southern end, is different than most communities I've seen. And we all certainly know that. Then I asked him, isn't it true, sir, that the method of operation with these gates being up that allowed persons like yourself to drive straight down this road all the way to the public facility is consistent with allowing persons to reach that public facility. His answer, I think it is, and I think it operates in terms of the public easement on the road. Now, that was the ceunty's expert witness. I think that's compelling. That's compelling testimony. Now, finally, I'll point out to you that the county has already conceded the access point. And the six-nothing vote by your Code Enforcement Board that found that the guardhouse did not impede access is not part of the ceunty's brief on appeal. The county has only addressed in its brief the other portion where the vote was four to two. What does that mean? That means that the court, if you decide to pursue this appeal, isn't even going to consider the access issue. Like I said, I was there. I appreciate your time. If any of you have any questions for me about what went on at the Code Enforcement Board hearing, I'd be glad to answer them. CHAIRPERSON BERRY: Mr. Hazzard, restate again, you said if this appeal goes forward, they will not address the gatehouse per se? MR. HAZZARD: Well, no, I don't think so. There are -- CHAIRPERSON BERRY: Okay, I misunderstood you. MR. HAZZARD: -- okay, there are two aspects to the Code Enforcement Board violation -- CHAIRPERSON BERRY: Right. MR. HAZZARD: -- notice, and one had to do with the comments Mr. Pires made, and the other had to do with the issue of access to -- CHAIRPERSON BERRY: Of access. MR. HAZZARD: -- access to the beach. CHAIRPERSON BERRY: Right. MR. HAZZARD: The ceunty's brief does not even address the second issue. CHAIRPERSON BERRY: The second part, okay. MR. HAZZARD: Right. CHAIRPERSON BERRY: So it basically is the location? MR. HAZZARD: That's right. That's -- CHAIRPERSON BERRY: That's the -- MR. HAZZARD: -- the crux. CHAIRPERSON BERRY: -- only thing -- MR. HAZZARD: Right. CHAIRPERSON BERRY: -- that the appeal speaks to? MR. HAZZARD: That's correct. And that's where your Code Enforcement Board heard substantial competent evidence and voted four to two to not cite the homeowners. Any other questions? Thank you. MR. FERNANDEZ: Madam Chairman, the final speaker on this subject is Jason Kern. MR. KORN: Good afternoon, Madam Chairperson and members of the board. Jason Kern, for the record, representing the homeowners' associations. Rather than argue the legal merits and impose the state's legal arguments, which can be done, I'm trying to be a little more constructive and talk about the positive aspects of the settlement agreement. First of all, I want to make it clear that this is between the county and the homeowners, this issue, which is different than issues with the state and the homeowners. What Ms. Maggie failed to include in her quote from the county easement is the word non-exclusive. I want to bring to your attention it's as non-exclusive easement. Also, it's a private road owned by deed to the property owners. In terms of what the settlement does for the county, I believe it addresses all the concerns relating to this public access. You've heard a lot of testimony as to people don't know where the park is, they're confused. Well, this addresses issues of signage in the community, outside the community, by electric signs. For the record, I'm going to run down some of the points to bring to your attention. If you have any questions, please ask. In this, under the public access rights, there's a section that provides the county has the right to conduct sea turtle watches during nesting season outside park hours. Something that expands over the land management plan and the use access plan. Also, the county can conduct similar outdoor nature programs outside the normal park hours; again, an expansion for the county's rights outside of contract rights. As to the guardhouse location, the county may reasonably monitor the operation of the guardhouse during daylight hours. As to the operation, guardhouse gate arms shall be removed in order to allow impeded access. COMMISSIONER MAC'KIE: Are you suggesting those are expansion of our current rights? MR. KORN: No, actually, I'm just addressing what's in this agreement. COMMISSIONER MAC'KIE: Okay. MR. KORN: That's why I made a specific point of telling you about the prior examples. That was outside -- because those were contract rights which we tried to expand. COMMISSIONER MAC'KIE: Arguably. MR. KORN: Also, there's in here specific indications about traffic using the westernmost lane, marking the lanes, and also, there is that use access agreement, which is cited, that the homeowners are going to release the agreement related to parking spaces. You heard testimony from Mr. DeNicola as to the parking situation, and there is a certain clause, paragraph eight in the use access agreement, which allows the homeowners to close the property. We're going to drop that. We won't be able to close it if the parking lot is full. As to signage, there is in section six, signs will be throughout the community which will be visible to the public, provide the information in terms of access, and will advise of the Preserve locations. There will also be signs regarding the separate parking lot. There will also be electronic signs outside on Bonita Beach pointing the way to the beach, informing the public that there is a preserve, there's a county park. COMMISSIONER MAC'KIE: You're not suggesting that we can't do that absent this agreement? MR. KORN: No, not at all. This is just in here. The county -- COMMISSIONER MAC'KIE: Because if we want to do that tomorrow, we can do that tomorrow. MR. KORN: Right. In this agreement, it provides that the homeowners will bear the cost of that. I think your county attorneys, or your -- one of the associations within the county estimated that would be a $40,000 cost; approximately 38,000 and change. And the homeowners are going to bear that cost of electronic signs, rather than the county taxpayers. COMMISSIONER MAC'KIE: I see. MR. KORN: Also, in terms of enforcement, there's been some allegations about trust. This provides for an enforcement mechanism that will go to the court, the court will take jurisdiction, and if there's a breach, the court will decide that issue. So you can enforce it against the homeowners. COHMISSIONER HAC'KIE: Can I ask you a question about that? MR. KORN: Yes. COHMISSIONER HAC'KIE: Why should we expect that that would be any less protracted than the last few years of being in court? Why should I feel like that's a real enforcement mechanism? MR. KORN: Because what you will deal with is just this agreement. The terms in this agreement will be -- COHMISSIONER HAC'KIE: But we already have an agreement. MR. KORN: Well, you have many agreements. You have a use access agreement, which will be released in this agreement. You have certain easements. You will have entered into an agreement which the court will look at as to whether or not guardhouse arms are off. Pretty simple issue. COHMISSIONER HAC'KIE: We'll be in the same position we are now MR. KORN: Not at all -- COHMISSIONER HAC'KIE: -- I think. MR. KORN: -- actually. Because it will be very simple. Are guardhouse arms on or off? There's not going to be a debate as to the location of the guardhouse. That won't be at all at issue. None of the four days of testimony of what you heard with the Code Enforcement Board will even be at issue with the court, should there be a disagreement with this agreement. So that whole part of the dispute will be withdrawn. COHMISSIONER HAC'KIE: Because we would have given away the issue of where the guardhouse can go. I see what you mean. We would -- MR. KORN: Right. COHMISSIONER HAC'KIE: -- we would give away something we could never argue again. But what would you have done to -- how would our position be improved on enforcing your agreement? MR. KORN: Well, I'm glad you asked that. Because the -- COHMISSIONER HAC'KIE: Glad you're glad. MR. KORN: -- use access agreement, which is cited in section five, and that's a very big section. That relates to the November 10, 1987 agreement entered into between the county and Lely Development Corporation, predecessor in interest. And I'll read you that section, among other things. The most important section -- COHMISSIONER HAC'KIE: This is the current agreement? MR. KORN: Yes, that's in -- that's around today. That the board agrees that standard operating procedures of recreational activities occurring on the property will include limiting the number of vehicles, accessing the property to the number of actual parking spaces located on the property. Meaning you can only have a certain amount of vehicles under this agreement. Secondly, if parking becomes full at any time, access to the property will be temporarily closed at the intersection of Bonita Beach Road at the entrance to Lely Barefoot Beach subdivision, until such time as parking spaces become available. And lastly, seller or its assigns, Lely, shall have the right to stop access to the property when the parking lot is full. Under this agreement, which the county has entered into and is a binding agreement under law, Lely has the right to stop people. What Lely is saying is we will release that agreement. We will release that section. And that's -- COHMISSIONER HAC'KIE: Is that an agreement between the county and Lely? MR. KORN: Lely Development Corporation, correct. COHMISSIONER HAC'KIE: And how does that waive the state's rightsunder their easement? MR. KORN: That's not waiving the state's rights. The state's not a party to that -- COHMISSIONER HAC'KIE: No, but the state has unimpeded rights on behalf of the public. I don't think the county had -- and I'm -- I don't think the county could have given away a right that the Attorney General could come in and enforce to prevent you from impeding access. So again, I don't think you're giving us anything. We already have that. It's just a question of is that to be enforced by the state or by the county. The county may not be able to enforce that, having entered into that agreement. But the state could certainly enforce it. MR. KORN: Well, that's actually -- COHMISSIONER HAC'KIE: So they haven't given us anything. MR. KORN: It's mixing apples and oranges, quite frankly. COHMISSIONER HAC'KIE: Well, I think you are. MR. KORN: The agreement, the use access agreement, is talking about parking. I'm just citing a particular section about parking. What you're, I believe, asking me a question is what the state's rights are with access. The state's rights are different than the county's rights. COHMISSIONER HAC'KIE: Yes, but you're saying that your client could prevent the public from coming into the park if the parking lot is full. And I'm saying the county may have agreed to that, and if so, that would be stupid, but we may have. But the state didn't agree to that. So the State of Florida could prevent your client from blocking access to the public on that road, no matter what the county MR. KORN: Well, then -- COHMISSIONER HAC'KIE: -- inappropriately agreed to. MR. KORN: -- that's why there's litigation between the state and Lely. That's a fight between Lely and the state. And there's issues as to what their easement means. But the county would be in breach of this. And that's why we have the agreement withdrawing that. COHMISSIONER HANCOCK: Pam, let me just offer one thing that I thought as we went through this process. If the guard gate is down tomorrow, and we're notified, do you know what our course of action for remedy is? COHMISSIONER HAC'KIE: I guess we'd sue them for -- I mean, I don't know under what agreement would bring the action that we've been trying to bring for the last 10 years. COHMISSIONER HANCOCK: One of the problems I saw, and the reason this has lasted 10 years, is because the remedial action is not sought out. The responsibility of that action falls to the county, but the path in which that situation will be rectified is not really spelled out anywhere. One thing that this agreement does is it defines that path and takes away the opportunity for a lot of back and forth motions, positions, statements and whatnot and puts it in front of a judge immediately to determine who's in the right, who's in the wrong bywho's in compliance with the agreement. COHHISSIONER HAC'KIE: Because what you're saying is since the county entered into this agreement from which Mr. Korn just read, we might not have the right to make that claim and bring it into court, so we'd have to go the zoning route, code enforcement route, which is what we just did. But the other thing we could do is call the Attorney General's Office and ask them to enforce it. COHMISSIONER HANCOCK: And they always have that opportunity. However, if this agreement did not, in my opinion, address the public access issue sufficiently, then we wouldn't be considering it anyway. What it does, in my opinion, is it locks in long term a public access condition that has occurred for the last two to three years and occurred without conflict or complaint. So I'm not saying that the Lely homeowners are being -- if your goal was to say penalize the homeowners, this doesn't do it -- COHMISSIONER HAC'KIE: No, it's not. COHMISSIONER HANCOCK: -- other than $40,000 for a sign and whatnot. But I think what happened here is we have seen a transition from people who bought 10 years ago under certain conditions and expectations and found out that those conditions and expectations were not necessarily valid. And so we have seen a transition from, in essence, that quote, unquote, leadership to individuals who are trying to define the rules clearly so everyone understands them and take the series of agreements and roll them into one with a subsequent enforceability. So, you know, as far as who's giving and who's getting and whatnot, from my standpoint, if the public is getting long-term guaranteed, unencumbered access, I don't know how much further than that we go. And I think the remaining issue is whether the guardhouse is in the middle or on the side of the road. I don't see any other issues before us. But I just wanted to offer you that enforceability aspect as one thing that we right now don't have. And at least everyone would understand the rules going in. COHMISSIONER HAC'KIE: We'd have to ask the state to enforce it, arguably. COHMISSIONER HANCOCK: If -- with that route, correct. MR. KORN: I have a couple of points in conclusion. COHMISSIONER HAC'KIE: I'm sorry, I did interrupt him, Madam Chair. MR. KORN: Finally, I just want to set the record straight with the land management review that was done back in October 17th of '97. The report, I believe, is in the agenda of November. That did consider the roads. If you read the language of it, it talks about whether or not the land management plan which governs that area was being complied with and in accordance with adopted plans. And specifically, there's language that says they're evaluating whether public access is in compliance. On paragraph -- excuse me, page three, there's a discussion of whether public access via the roads is in compliance. And there is an answer about all team members agreeing that actual management practices, including public access are in compliance. The reason that it appears clear that the road was considered is one of the comments on attachment three specifically says two things: That they think monies would help to promote the existence of the park; a sign on 75 designating the park would be good, and there's a need to ensure that free, unencumbered public access is maintained throughout the community of Lely Barefoot Beach. This was considered. This was undertaken, unknown to the homeowners' association. We got a copy of this during the discovery process. This was sent to the Attorney General in August of this year. And then these magic minutes appeared, backing away from it saying well, we -- that doesn't really affect litigation. Lastly, I want to bring to the attention the April 1, 1998 report, which was done by the county of a survey. Over three months' time 35,598 people crossed that road. And they surveyed 261 randomly. Again, we did not know about this survey. I received this several months ago in the survey process. Ostensibly there were no complaints about the road, barring two. You heard from Mr. DeNicola one person said they were unhappy that at 7:45 they couldn't get in. The park doesn't open until 8:00. And the second person said they didn't like the guardhouse. All the other people had no problems with access. COMHISSIONER CONSTANTINE: Do you know where that survey was distributed? MR. KORN: Where was -- COMMISSIONER CONSTANTINE: If I were one of the persons polled, where would they have -- where would I have been approached and asked those questions? MR. KORN: Well, I can just read you what it says. It says, upon entering the park, visitors were asked if they experienced any particular changes entering the private gated community -- COMMISSIONER MAC'KIE: So they were already in. COMMISSIONER CONSTANTINE: Yeah, my point in asking that question is if you're in the park, you're at the south end of that two-mile road. So if you had hesitated or turned away at the -- COMMISSIONER MAC'KIE: Like the person in this article. COMMISSIONER CONSTANTINE: -- entrance, you obviously wouldn't have been asked those questions. MR. KORN: Well, somehow this woman who didn't get in was also asked. But ostensibly people get into the park and still have problems, allegedly, is what people have testified to. And this is trying to show you that public access by an independent agency is showing that there is no access issues. And I think this boils down to -- COMMISSIONER MAC'KIE: But they asked people in the park if they had trouble getting to the park. COMMISSIONER CONSTANTINE: You understand my point. MR. KORN: Oh, I understand your point. This is just something that came up in an independent agency. More telling is that the actual parking, as you know, is filled to capacity, as you heard earlier today -- COMMISSIONER MAC'KIE: We should build more -- MR. KORN: -- during season. And if there was an access problem, it would be difficult to argue why would the park then be full to capacity for parking. There is a video that's available. I think it was provided to you, if you need to see it. It's on the video monitor. It's outside my time at the point, but it depicts the unity in the beginning. It's available to you, if you need that. If you have any questions? CHAIRPERSON BERRY: Any questions for Mr. Korn? MR. KORN: Thank you. CHAIRPERSON BERRY: Thank you. COHMISSIONER HAC'KIE: Madam Chair, I find myself in the odd position of wanting to ask a question of the reporter who wrote this article. CHAIRPERSON BERRY: You can ask it on your own time. I don't think you need to ask it now. COMMISSIONER MAC'KIE: Okay. COMMISSIONER HANCOCK: Madam Chair, I -- in an attempt to at least move along to some discussion, and as a -- I'm going to ask that we close the public hearing. CHAIRPERSON BERRY: I'll close the public hearing, if we have no COMMISSIONER NORRIS: I don't think there is a -- COMMISSIONER CONSTANTINE: It's not a public hearing. CHAIRPERSON BERRY: Well, it's not a hearing, but we had speakers. MR. FERNANDEZ: No other speakers, Madam Chairman. CHAIRPERSON BERRY: No more speakers at this point? Okay. COMMISSIONER HANCOCK: Madam Chair, I know we all probably want to spend the next 30 minutes making individual speeches about what we think is right or wrong, and I'm going to avoid that, simply by saying I've been very consistent for four years in trying to find a solution to this. I believe the solution we have in front of us improves public access, guarantees it for the long term, and with the addition to what's in front of us of providing two signs for westbound traffic at the entrance of the park and one sign for eastbound -- because if you go back much further on the eastbound side, we're actually in Lee County -- if we add those signs to the agreement, I'm going to move approval the agreement. CHAIRPERSON BERRY: Mr. Constantine? COMMISSIONER CONSTANTINE: I certainly appreciate Commissioner Hancock's efforts here. This is a tough issue and no matter what you do or what you came forward with, someone would be unhappy. I also appreciate the homeowners' willingness to try to work onthis, which hasn't always been the case. And the cooperative spirit is appreciated. Commissioner Mac'Kie earlier mentioned the 1995 agreement, which at one point all parties had agreed to. And I wish we had that before us now. That did move the structure to the side of the road; also hit on the gate issues and a number of others. The concern at that point, and also in an effort to be consistent, the concern I have had throughout is not only that there's a barrier impediment, but that there is a visual impediment, or a visual cause for concern for those who may not be familiar with and may not be regulars in the park. It really sounds -- this agreement sounds like we are almost there. There are a number of concessions by the homeowners. And if we could do pretty much what you've outlined and move that thing over that 20 feet we talked about earlier, I could go very comfortably for this. I guess my concern is Mr. Korn points out that we have a number of agreements already, and yet problems exist now already, despite those agreements. And so the new agreement -- my fear is that the new agreement, even if everybody in this room and everyone who has worked on it has the best of intentions, as time goes on and the personalities change, despite that agreement, we still end up with concerns the way we do now. Despite agreements. And so short of throwing that one final part of the agreement in and that being the structure itself, I'm not sure I can do this. I think unfortunately, and I wish it wasn't this way, but eight years after you first came here, I think probably the only way we are going to assure that we have a final, legal enforceable answer is to go through the court system. And that's what we had directed a year ago, two years ago, whatever the last time we went into this, and any substance was -- and I think that's probably our best bet at this point. It's unfortunate, but I think it's the only way we're going to bring this to some finality. COMMISSIONER NORRIS: Well, I've heard several people say that people have reported that they drove up to the gatehouse and were intimidated or whatever, didn't realize that it was public access and drove away. So, you know, that's not really a problem of access, that's a problem of information. If the correct signage is up there to let people know that that is indeed the public access to the park, then you really don't have an access problem under this new agreement, because there won't even be gate irons there. And the commitment is not to even stop the people as they drive through. So if your motion entails signage to the point where there can't be a reasonable mistake that there is public access, then I'll second the motion. COMMISSIONER HANCOCK: I'll include in the motion that the sign should be a minimum of six square feet, indicating distance and turning movements required to enter the park. COMMISSIONER NORRIS: Six -- you mean six feet square? COMMISSIONER HANCOCK: COMMISSIONER NORRIS: different. COMMISSIONER HANCOCK: feet, a three by two. COMMISSIONER NORRIS: COMMISSIONER HANCOCK: Yes. Which is somewhat different. Substantially No, I was say -- no, I'm saying six square Three by two? I mean, I'm willing to leave the size open. I just want to at least adopt a minimum that allows us to get enough information on them. And I'm -- you know how I feel about sign clutter. COMMISSIONER NORRIS: Well, I know how you feel about sign clutter, but we have a problem here of directing access to a public park. I think the signage needs to be of a nature where that there can't be a reasonable mistake that there is access. COMMISSIONER HANCOCK: Do you have a size in mind? COMMISSIONER NORRIS: I don't have a size in mind, but I think we could leave that up to our traffic engineering boys and let them figure out what is really necessary to make sure somebody driving down the road is almost certain to see that there's the public access to the park. COMMISSIONER HANCOCK: I'll alter my motion to include that as the absolute intent of the additional signage. COMMISSIONER NORRIS: And I'll second it under those conditions then. CHAIRPERSON BERRY: Commissioner Mac'Kie? COMMISSIONER HAC'KIE: I just wish that I could, but I can't. CHAIRPERSON BERRY: Well. COHHISSIONER HAC'KIE: The compromise is just too great. And the place where we've fallen apart -- and I'm going to also resist the urge to make that speech, but I just have to say this one thing -- COHMISSIONER HANCOCK: Many speeches are allowable. COHMISSIONER HAC'KIE: -- is that the place where this has fallen apart is where we have started from the position that we have this problem, what's the best way to minimize the problem, instead of we have the obligation on behalf the public. We should start from the place where we have the obligation on behalf of the public to be sure that of all things in this county, you don't restrict access or impede or in any way interfere with access to the beaches. That's what we have first and foremost more than anything else. And good Lord, we have a parking access problem for beaches. We need to be building more access, more parking. We've talked about that so many times. This sounds like a good compromise if you start from the position that this is a very screwed up situation, let's see how we can make it better. It's a poor compromise if you start from the position the public has the right to unimpeded access to the beach, how far should we go in allowing there to be some impediment. And the answer to how far we should go is we shouldn't. COHMISSIONER HANCOCK: That's where you and I disagree. COHMISSIONER HAC'KIE: And that's the fundamental disagreement right there. COHMISSIONER HANCOCK: I don't think the existence is an impediment and you do. And that -- so that's just a basic disagreement. I understand your point, though. COHMISSIONER NORRIS: Okay. CHAIRPERSON BERRY: Okay, so I've got one two, one two. COHMISSIONER HANCOCK: It's two-two. Congratulations -- COHMISSIONER HAC'KIE: You feel like a swing there, Barb? CHAIRPERSON BERRY: Anybody like to go out to lunch or something real quick? COHMISSIONER HAC'KIE: Probably some people who would buy you lunch. COHMISSIONER HANCOCK: Right about now is the time you're supposed to be in the bathroom or, you know, something else. CHAIRPERSON BERRY: Yeah, maybe I should just disagree, disappear, do something. COHMISSIONER HANCOCK: Welcome to the block, new kid. CHAIRPERSON BERRY: Well, it's time to fish or cut bait. This is something that's drug on for 10 years. Shame on us. The easiest thing we can do is throw this thing to the courts and let somebody else make the decision. That's the easiest thing we can do. I can vote this thing down, it goes to the courts, the courts make the decision, they do their thing, and we walk out of here and we all think that we're heroes because we've done what we've done. COHMISSIONER CONSTANTINE: You are my hero. CHAIRPERSON BERRY: Yeah, right. What did you smoke for lunch? At any rate, that'd be a first. You know, if this thing hadn't gone on so long -- you know, when this all should have been taken care of, and none of us were here at the time, was 10 years ago, or whenever this first started back umpteen years ago. And now we're at a point where there's certain expectations. And I'll tell you, there's plenty of stuff to go around here. I mean, we can point to all groups and everybody can share in it. There's plenty of garbage here that each one of us as a body could pick up and carry out of here. I don't think the homeowners would deny that, I don't think the county would deny it, I don't think even possibly the state would deny it. I would think almost that they're negligible (sic) in some point of perhaps not being as vigil (sic) as they should have been. I guess the thing that concerns me the most is the reasonableness factor here. And I'll tell you, there's certain parts of this that really makes me very, very angry. But at this point in time, if you have the proper signage, if the gate arms are not visible, if you can get in and out of there without having anybody stop you or do anything, I just come back to what is the problem here? I just don't understand this. And I know it's public rights. Everybody is sitting there,public rights, public rights. I understand that. And I'm saying but I don't think if I take away the signage, if I take away the gate arms and you can run in and out of there at free will, what's the issue? What is the issue here? Other than you want to spend -- you want the courts to go and get involved in this and spend a ton of money to solve this problem. And I'll tell you, if we tried to do this on something else, you'd be down here chewing us up one side and down the other for going to court to spend money. I mean, it just is beyond reasonableness, as far as I'm concerned. You have a unique situation here of whereby you have a housing development in close proximity to a park. This admittedly so, even by the people from Tallahassee, they're not aware of any other such existence of a situation like this. It is unique. And the sad part is, that everybody's decided they can't live together like this, they can't get along with it. I don't understand it. I think this agreement -- I'm not going to say that everybody's given up a lot. They should have gotten here a lot sooner. I'll tell you that right now, as far as the homeowner group was concerned, shame on you, you all should have done this a long time ago and you'd saved yourself a lot of headaches. I'm not one to go out and solicit people to go down and see if they can get through the gate or not. I will tell you, my own family's gone there and they've not ever been impeded. And you wouldn't know who my kids are if you ran into them on the street, so -- and nobody does for the most part either, unless you look at them. They may look like my husband or I. COMMISSIONER HANCOCK: Hopefully you. COMMISSIONER MAC'KIE: Oh, the sucking up. CHAIRPERSON BERRY: I've got to tell you, I think this -- COMMISSIONER HANCOCK: No, I'm just -- CHAIRPERSON BERRY: -- agreement -- at this point in time, I think it's a good agreement. And we're still going to end up probably in court anyway. Mr. Weigel, what is the situation as far as the court side of this anyway? MR. WEIGEL: Pleased that you would ask. If the settlement agreement -- if the settlement agreement is approved by this board and signed off by the homeowners' associations, the agreement does provide for the settlement of both court cases with the homeowners' associations. Now, we are held as a party defendant against the Attorney General, the State of Florida, in the second case which is a declaratory judgment action looking to determine the rights and responsibilities of the parties. That's the action, the case that's separate and apart from the Code Enforcement Board case. CHAIRPERSON BERRY: Now, what does that mean? Would you -- MR. WEIGEL: I'll tell you. CHAIRPERSON BERRY: Okay. MR. WEIGEL: Pardon me. And what that means is, is that by an agreement of this board, approval of this board of the settlement agreements, we would not be in litigation in the Code Enforcement Board case. It would end. And I would respond to Mr. Pires' comments a little earlier, in regard -- if I have the opportunity here. In regard to the other case, which is what's called a declaratory judgment action, it is an action initiated by the homeowners against Collier County, ultimately joined in by the Attorney General on behalf of the State of Florida, and that is one where the parties are attempting to have the court define and declare the rights and responsibilities in regard to the 60-foot easement and the guardhouse there. But we must separate that somewhat, because there are -- there is some distinction between the pure local county PUD ordinance characteristics of the Code Enforcement Board action that we have appealed and the state's rights and the county's rights, both that it has with its own action with the homeowners' association, and that it has as, to use the word of the Attorney General's, the steward of the state's rights -- COMHISSIONER MAC'KIE: But David -- MR. WEIGEL: -- with regard to access -- COMHISSIONER MAC'KIE: -- you're losing -- CHAIRPERSON BERRY: Let him finish, please. COMMISSIONER MAC'KIE: One case goes away -- CHAIRPERSON BERRY: Let him finish. COMMISSIONER MAC'KIE: -- one case stays. MR. WEIGEL: Yeah, one case goes away, the other case continues. But there's a little more here, and if I may, I think it might be of some assistance to you. In the discussion that we had today here -- and I think it's important to clarify this. Of course, one of the major issues, the issue before the Code Enforcement Board, was the alleged illegal placement, either within or outside the PUD of the guardhouse. Now, this issue was determined by the Code Enforcement Board. There always has been an ability of this board, prior makeup of this board years previous, to initiate a PUD amendment or for the homeowners' associations, once -- or the developer at the time that each of them have respective rights, to initiate a PUD amendment to attempt to include the area where the guardhouse is within a PUD. This has not been the tack of the current board because the staff and this board considered the gatehouse improperly located, and the staff was charged to review and initiate prosecution of the homeowners' association, and citation was issued before the Code Enforcement Board. It's arguably inappropriate at this point for this court to do a PUD -- for this court -- for this board to do a PUD amendment, because that would be contrary to the Code Enforcement decision, an appeal that we have pending right now. Now, if the county, even apart from entering into a settlement agreement, or attempting to enter into a settlement agreement,dismissed its Code Enforcement Board case, decided it wasn't worth the effort to go forward or let it be determined in the courts, I think a very strong argument exists then that the Code Enforcement Board interpretation, an order that it provided concerning the gatehouse, is the local rule of law in Collier County. Now, further, it was stated earlier on that the 60-foot easement that exists presently needs to be an unimpeded, unrestricted easement, and that in fact the state could have a road built 60 feet wide, the entire width of the easement to the park. I want to clarify that. I think they do have -- clearly they have a 60-foot easement. Their agreement -- and I don't mean to argue -- make the arguments for the other parties, but their agreement with Lely was in fact that Lely would develop a road and that road would be developed to county standard. I'd defy anyone to say that the county standard is to build a 60-foot wide five lanes abreast road to that park over a public easement area. It's not the county standard. And it would define the needs and the access requirements and the demand and impact upon a roadway there. So I think that that's kind of a false issue that's been placed forward a little earlier today. Ultimately I would refer us to a legal opinion that was provided to the Division of State Lands by an attorney, William Robinson, who was assistant general counsel, the office of the executive director. And this was in regard to Barefoot Beach Preserve. It's dated June 17th, 1993. I think it important to note that historically the parties have in fact been wrestling with this issue for many years, even at the state level, and not just when -- not purely when the land management plan came into being. But I'm going to recite, if I may, a couple I think very cogent discussions that comes from this three or four-page legal opinion. And the opinion was answering these questions: What does the phrase non-exclusive permanent easement for ingress and egress mean, as used in the February 1st, 1978 deed and agreement? And it says, does paragraph five of the unrecorded '78 agreement authorize the location of the existing guardhouse and the state's public access easement? If the answer to question number two is negative, does the paragraph in question authorize any other type of checkpoint structure within the access easement? Well, ultimately, after citing significant Home book law, it mentions the fact that the phrase "non-exclusive permanent easement for ingress and egress" needs to be analyzed, and it points out that the easement is not exclusive and it means that the party granting the easement in favor of the board of trustees retains the right to use the lands containing the road in a manner which is compatible with and not unreasonably restrictive of -- it doesn't say unrestricted, but not unreasonably restrictive of -- the state's easement rights, and to grant similar compatible uses to third parties. Meaning to say that the underlying owner, the developer at that time, has the ability to even grant similar compatible uses to thirdparties, always taking into account this non-exclusive permanent easement granted to the state. It states here as a caveat toward the end -- well, here, as noted above, the easement in question is non-exclusive. Thus, although in my opinion the unrecorded August, '78 agreement does not obligate the board of trustees to allow a guardhouse or gate to be located within the easement corridor, it should be remembered that the easement does not limit the use and enjoyment of the road exclusively to the board of trustees or the general public. The fact that the easement is non-exclusive allows compatible usage by the landowner, provided that such usage does not materially interfere with the full use and enjoyment of the state's easement. And that is the question that would be decided in a court of law. However, further -- and this is the last part of this opinion -- he says, thus the right of the landowner to operate and maintain a guardhouse and gate within the easement corridor will stand or fall based on the method of operation and the degree of interference with the rights of the state and the general public to the full use and enjoyment of the road within the easement corridor as a means of access to the Barefoot Beach Preserve. In my opinion -- and this is the author -- the proposal discussed by Jack Ponds of this agency, meaning DNR, whereby the landowner would provide a, quote, free access, closed quote, traffic lane for those members of the general public using the road to access the Barefoot Beach Preserve, unrestricted by gates or guards, but would require residents or visitors seeking to gain access to the surrounding subdivision to use a second traffic lane wherein passes or permits confirming access to the subdivision could be checked or handed out on a temporary basis as required would not constitute an unreasonable burden or interference with the rights of the trustees or the public under the existing easement documents. In our discussion yesterday, with the Attorney General representatives before us today, the attorney indicated that she did not agree with this opinion. But it is an opinion that's been of record for many years, and I think that it is fairly iljustrative of the fact that even at that time, in 1993, were the conditions of operation at the guardhouse/gatehouse were significantly different than now, that there was in fact a kind of understanding by virtue of legal opinion where the county has certainly attempted to come to a better understanding and clarify the loopholes and the specifics in the agreement before you today. A long winded statement, but I thought it might be helpful to you, in case you're interested. MR. MANALICH: Madam Chairman, I have one additional comment, and that is -- CHAIRPERSON BERRY: Would you identify yourself, please? MR. MANALICH: Sorry. Ramiro Manalich, chief assistant county attorney. As far as the landscape that I would see here in the event that you chose to enter a settlement, what I would see happening is wewould have made our peace with the property owners in both cases, the Code Enforcement case and the circuit court action. The circuit court action would suffice in terms of if the state, which has already named us as a cross defendant, chooses to continue to pursue that, we remain in the case litigating with the state. The only other potential here that I see is based on Mr. Pires's comments today. If a citizen group were to attempt to usurp some type of standing and challenge us, that conceivably could happen for the reasons they articulated. You know, whether or not we agree or disagree with that is not the issue right now, but that's the litigation landscape that I would see potentially ahead, if you -- in response to your question. COMMISSIONER MAC'KIE: So Ramiro, if -- unless the new administration under Governor Bush -- and I don't know what kind of control they have over what the decisions are of the Attorney General, I'd be curious about that. But unless they make some change, the current Attorney General reelected has indicated he's going to pursue the lawsuit. We don't get out of court, Ms. Berry. I mean, if that's what your vote is to try to do, to settle this once and for all, it's not happening. But not only that, but where it leaves us is in a position that I find embarrassing and that is that the State Attorney General has to go to court to defend Collier County residents and other public members rights to access to a beach. I think that's embarrassing that the state has to do that and that the county isn't. COHMISSIONER HANCOCK: I think that statement is based on your opinion that this agreement does not do that. My opinion is that this agreement not only protects but preserves and sustains the public access issue. Therefore, we have served the residents of Collier County in a manner befitting public access. And if the state wishes to take exception with that, they may. COHMISSIONER HAC'KIE: Well, the state will be saying their standard for access to the public beach is higher than our standard. COHMISSIONER HANCOCK: Except that their standard, as iljustrated in the operation of state parks, is equal to or lesser than what we are providing here. And I think that will be very tough for them to prove. COHMISSIONER NORRIS: Yeah. They're going to have a hard time making their case in view -- COHMISSIONER HAC'KIE: But we're staying in court. COHMISSIONER NORRIS: -- of the way they operate their parks. COHMISSIONER HAC'KIE: We're staying in court. COHMISSIONER NORRIS: That's fine. Call the question, please? CHAIRPERSON BERRY: Okay. So the motion is -- Commissioner Hancock again? COHMISSIONER HANCOCK: The motion is to approve the agreement presented to us today with the additional caveat that signage be placed as determined by our transportation department to adequately notify the public in a manner that is -- that cannot be misinterpretedthat -- COHMISSIONER NORRIS: That cannot be reasonably misinterpreted. COHMISSIONER HANCOCK: Cannot be reasonably mis -- thank you, reasonably misinterpreted, that the entrance to the park is there on Bonita Beach Road and the location of that entrance. CHAIRPERSON BERRY: Okay, and the second agreed with that? COHMISSIONER NORRIS: Yes. CHAIRPERSON BERRY: And no matter what happens, we'll probably end up in court either way. COHMISSIONER NORRIS: That's fine. COHMISSIONER HANCOCK: Somebody will sue us. CHAIRPERSON BERRY: Okay. All in favor? COHMISSIONER NORRIS: Aye. COHMISSIONER HANCOCK: Aye. CHAIRPERSON BERRY: Aye. COHMISSIONER CONSTANTINE: Aye. CHAIRPERSON BERRY: Opposed? COHMISSIONER HAC'KIE: Aye. CHAIRPERSON BERRY: Motion carries four-one. MR. WEIGEL: Madam Chairman? CHAIRPERSON BERRY: Yes. MR. WEIGEL: Thank you. As you know, in the agenda packet for this agenda item, there are two agreements there. One is a two-party agreement and one is a three-party agreement. The only difference between the two is that the three-party agreement has the third party the state included. If it is the pleasure of this board that the chairman be authorized to sign both agreements, it would appear, based on the representations of the homeowners' association, that clearly the two-party agreement would be signed today and you might wish to put a limitation on the three-party agreement that both the homeowners' association and the county of course would be signing that. But it puts the invitation -- or offer out to the Attorney General on behalf of the state to sign off on the three-party agreement, which would of course reduce if not eliminate altogether the -- COHMISSIONER CONSTANTINE: Madam Chair? MR. WEIGEL: -- the litigation. You might give them a 30-day turnaround. COHMISSIONER CONSTANTINE: Mr. Weigel, I'm going to suggest we wait on the signing of that two-party agreement, because I intend to place the item up for reconsideration on next Tuesday's agenda. MR. WEIGEL: Okay. Whatever the pleasure of the board. CHAIRPERSON BERRY: Okay. I think we'll take a break right now before our court reporter's fingers fall off, so we'll take just about a five or six-minute break. (Brief recess.) Item #10B REPORT REGARDING THE NORTH NAPLES MASTERPLAN - STAFF TO INITIATE A TOWN HALL APPROACH CHAIRPERSON BERRY: All right. We've had the seventh inning stretch. We've only got about four more hours to go here, so -- you're laughing, Mr. Kant? No, only three and a half. At this time, item 10(B) is an item that Commissioner Hancock had placed on the agenda. He had spoken earlier to us about coming back with a plan for the community -- what's the official term? COHMISSIONER NORRIS: North Naples master plan. CHAIRPERSON BERRY: North Naples master plan. Kind of the community kind of thing. So at this time we're going to hear from Commissioner Hancock. COHMISSIONER MAC'KIE: How strange to see you down there, although, maybe in a couple of years. COHMISSIONER CONSTANTINE: It's just a warmup. COHMISSIONER HANCOCK: I'm just practicing. Many months ago -- CHAIRPERSON BERRY: Would you identify yourself for the record, please? COHMISSIONER CONSTANTINE: Yeah, who are you? COHMISSIONER HANCOCK: I'm soon not to be Commissioner Tim Hancock. One of the things that occurred to me as we were looking at the Long Bay partnership agreement several months ago is that the corridor of Livingston Road north/south was going to extend into an area that previously was more or less isolated from development due to access constraints. By that road project moving forward, it will open up the area as a development corridor. And it's not an issue of whether that happens now or five years from now or 10 years from now, but simply an issue that eventually it was going to happen. We already had PUD zoned in the area. And I think we expected it to develop, but now we have to look at what that time frame is going to be. This represents to me one of the last opportunities we have as a community to take well over 2,000 acres of undeveloped, unplanned land and create something different than the development patterns that we have fostered in the past as a county commission. For far too long the development patterns in Collier County were driven solely by real estate development. If you wanted to sell your parcel of land, you created access to it. The access to that parcel of land eventually was used by others and that became a development corridor. Now we tend to look out and develop roadways far in advance of development patterns, but we're quite limited in the areas of the county. We can have a significant impact in doing that. What I'm trying to do today is to ask the board to give staff direction so that at least this portion of Collier County could find a way to develop out in a pattern very different from the arterial and collector dependent development we've done in the past to create village style zoning to capture traffic and trips inside of this area to a great extent and reduce the burden on the balance on our roadway system. The exhibit that you have on your telestrator shows the area that is bordered by U.S. 41 on the west, 1-75 on the east, Lee County to the north and Immokalee Road to the south. The arrows in yellow arepredominantly developed with little ability to effect their development patterns. The areas in red are existing, and future activity centers in the area, as well as small nodes of commercial. As you can see, they exist on the periphery of the green area. The areas shaded green are zoned agriculture or are zoned PUD, but have not yet commenced final site plan processes. The green areas represent over 2,500 acres with a potential population of nearly 19,000 people, roughly the size of the City of Naples. In all likelihood, the build-out population in this area will be significantly lower, in the 12,000 to 15,000 range, but still represents a significant population. If we were to take the traditional approach consistent with our existing comprehensive plan, we would plan for future commercial needs by locating an activity center in this area. I'll save you the thousand dollars of consulting work and do it. While this may locate services nearer to the future population, it does little to change our existing development pattern and thus our roadway impacts. What I've proposed is that we look at this area the way we should, and that arterial collectors do not create neighborhoods, they divide them. Every time you put a major roadway in, anything beyond two lanes, you in essence are separating communities, separating neighborhoods. Since they create in essence a natural break between communities or villages, I suggest we pursue the creation of four separate communities, ranging from 350 acres in size to 950 acres, each containing an internally accessible commercial component, community centered uses such as parks and church sites, and a spinal road system that is public with any enclave communities contained within that spinal system. If you have any question as to whether that combination works, you need only look as far as Pelican Bay and the Vineyards in our own community to see examples of how public and private roads can coexist, providing security needs, which is a hot topic today, and public access. By using criteria to locate the commercial components so they are both internal to the community but accessible from the arterial roadway system, you can take advantage of one, a captive community as a consumer base, and two, external traffic on the arterial road system. The amount of commercial will have to be scaled for each community. Obviously you're not going to put 130,000 square feet in 350 acres, nor are you going to put 10,000 square feet in an area of 900 acres. Considerations -- and I think this is key -- such as home office uses, need to be considered that are not provided for in our Land Development Code. Currently we need to recognize the role of small businesses and telecommuting that is becoming commonplace, and try and allow for zoning allowances that give people the opportunity to stayhome and work. Care should also be taken to work with the school board to plan and locate for the necessary schools within these planned areas, focusing on the schools doubling as a community center and a central focus for possibly two of the larger, if not at least one of the larger, communities. Now for the painful part. How do we make it a win/win for the property owner? To just come in and slap additional regulations without adding value to the land is probably going to trigger some type of a Butt Harris claim, if not an actual case. When you locate retail and business uses near population centers, or communities of significant size, you can reduce external trips by approximately 20 percent. By good design, we can reduce external traffic by 20 percent. This benefits the balance of the roadway system in the county, as well as the immediate roadway system that is affected. If you were to look at the dirty word of a density bonus of one-half unit per acre over a base density of four units an acre, that represents less than 12 and a half percent of an increase in density, netting a reduction of eight percent in external trips and external traffic. These are very general numbers. These are standards that are being touted, not necessarily real world results from this particular approach. But again, at this point all we have to use are standards and what other communities have realized. The criteria that would have to be met in order to take advantage of the increase would require minimum preservation of contiguous native areas or off-site acquisition in lieu of preservation of isolated nonfunctioning systems. In essence, preserving a perimeter green belt around each community, or if that is not doable or attainable, requiring outside mitigation of areas such as the CREW lands in order to make preservation a key element of this type of development pattern. As we all know, it's not the growth itself that threatens our quality of life, but the impacts of that growth that cannot be successfully mitigated, that will ultimately have an adverse impact on our community. Other than density bonuses -- because it's important to look at options -- there are several components that would add value to the land while acting in concert with a direction toward a town style development. First is the creation of a central retail and commercial component. This carries with it an inherent increase of property value that would otherwise not be realized by the property owner. I think we can also look at the reduction in setbacks and development criteria that allow for a higher density in the core, reducing the infrastructure costs. If we're going to reduce the infrastructure costs, we could therefore also reduce the impact fees due based on that reduced infrastructure cost. We go right down the line with that. A more dense population allows for a greater amount of service with smaller facilities. Therefore, I believe when we look at the net impacts of good town style development, we will see a net reduction in the cost of infrastructure across the board. And by master planning these communities, things such as central library sites and school sites, if provided, will automatically reduce those impact fees while adding to the character of the community. What I was able to do in very quick form is we've all seen the standard type of development in Collier County. You take 600 or 900 acres, or 200 acres, you have a single point of entry, you go through the gate -- with a private guard in it -- into the community, and you have your uses within the community. And if you need to have anything, get anything, you need to go to the dry cleaners, you need to go to the drug store, you've got to go out that single entrance onto an arterial road and go get it. That places a burden on our road system that I think is risking tremendous failure. And if you take a good look at what is proposed here, you see Livingston Road future north-south and east-west. The reason Livingston Road east-west does not continue to 1-75 and beyond is because development east of 1-75 has prohibited that roadway from continuing on a parallel course north of Immokalee Road. This is a huge problem. This means everything between 1-75 and Orangetree will be using Immokalee Road as its only arterial feeder. I list this as a real concern, because we have absolutely no way, unless Bonita Beach Road to the north in Lee County is developed more fully, to get people from that section of land -- those sections of land out of there other than Immokalee Road. We're going to see an extreme impact to Immokalee Road and eventual failure, unless that can be resolved. I list that as a caution. It's outside of this area, but I think if we were able to take east-west Livingston Road, all the way across 1-75 in between Cypress Woods and Quail West I think is the dividing line there, we would have an opportunity to provide an east-west reliever to that future development area. As I see it, we don't. That's something I wanted to mention. Rather than traditional style of development, what you could see is something that would provide for mandatory green space, a central network of public roads, and what you see here basically is a mix of commercial, institutional three, high density residential, which is three to six units an acre, and low density, which are basically half-acre estate type lots with parks and open space planned at the outset. While this is just a visual iljustration, and it does not recognize the existence of the wetland systems in that particular section of land, there are two that I was aware of on the aerials that could be integrated and provide the necessary open space with a public roadway system working around them. I think what this does is it shows how I believe we need to try and adopt in this area a planning phase that will require developmentsto be true mixed use in character. Mixed use does not mean the shopping center by the roadway. It means central location, access for everybody within the community, as well as those outside. The purpose of what I brought forth today is just an iljustrative approach to try and ask for your direction to our planning staff to look at this area, including the Livingston Dynabelt PUD, which is going to be coming back to this board, work closely with those property owners to promote and produce a town development style that in essence will create a node where we will capture the majority of the uses and needs of the people who live there, and reduce the burden on the exterior roadway system. We all know our roadways are our most restrictive piece of infrastructure as we look forward in the next 20 years, and unless we change the pattern of development in this county, we are not going to have a positive impact on that roadway system outside of density reduction efforts. Another example of how this could look is a project called Abacoa (phonetic). As you look at this, what's shocking is this is a DiVosta community. COHMISSIONER HAC'KIE: All the rooftops are the same, though? COHMISSIONER HANCOCK: No, just the opposite. DiVosta came in late as the developer on this. It was already laid out by someone else. But I think it goes to show you that someone who is known for a traditional or what I'll call enclave style of community has found markets out there for traditional towns. The real estate community that I've talked to on this says if you can make it happen, we can sell it. I think the interest is out there. The -- Whit Ward of CBIA, I've met with him and his board on these issues. They seem to be very much in tune with it, but we're asking to be a part of the process as it moves forward, and I think we would all anticipate that. So the purpose for this brief presentation today is simply as a, if you will, parting shot as I walk out the door to try and leave something behind by way of direction that allows our planning staff to do some real planning and to try and create communities that work well within a framework as opposed to communities that exacerbate a framework that is already under stress. COHMISSIONER HAC'KIE: I have to just say, I appreciate how much -- so much appreciate your bringing this, because you and I got elected the first time together and have spent the last four years hoping and wishing and trying to get something like this in the long-range plans of the county, and so it's wonderful of you to put it on paper like this for us. CHAIRPERSON BERRY: Commissioner Constantine? COHMISSIONER CONSTANTINE: You know the density issue is near and dear to my heart. COHMISSIONER HANCOCK: Somehow I felt you were going to ask a question on this. COHMISSIONER CONSTANTINE: I know you have pointed out very well that really the toughest part about density is the effect on ourtransportation system. That's where all of us feel it. And in the scenario you've described -- in the scenario we're in right now, if you need to go out for bread or milk or whatever, you're right, we have to go out that single gate onto a roadway and clog the roads. In the scenario you've described, we could probably stay within our own communities to go do those basic things. My concern, and I need your help on this, is the biggest problem, like every growing community or every metropolitan area, is during that rush hour, the morning and the end of the day when people are going to and from work. And these communities obviously aren't going to support employment for all their residents. COMHISSIONER HANCOCK: Correct. COMMISSIONER CONSTANTINE: And when we get to a higher density, if we get a density bonus and we get up to six units per acre, how do we deal with that additional impact on the road network during the 7:00 to 9:00 a.m. and the 4:00 to 6:00 p.m. hours of the day? COMMISSIONER HANCOCK: The 20 percent reduction that is anticipated with these type of design elements applies not just to a loaf of bread and a gallon of milk, but also to some of the designs of being able to locate office near where you work. And you're absolutely right, we cannot provide office space, nor anticipate the type of workplaces that are going to be required in a community and handle all of those uses. The majority of people will work outside the community. I think you can do two things to -- if we don't take this approach, nothing changes. All of those people are getting on the roadway system to go to work, regardless. What you can do is use this approach, a town planning approach, to do two things: One is to at least locate some office space within the community. And by requiring minimum office space per acre of development, what you do is much like when DiVosta comes in and builds their town center and turns it over, you will see people, if they do large tract development actually do much of the same thing. It becomes a marketing option for them to tell someone who is a one-person accounting firm, we have a place for you to do your job here in the community you can walk to, you can bike to and whatnot. So you're going to see a minimal capture rate of employment there within the community. Beyond that, the only other addition that I see is we are moving more and more to small businesses, one and two-person operations. That can occur peacefully within a neighborhood, within a home. You can establish zoning districts, and it has been done elsewhere, where it's understood that within that district work/home residences are constructed where there are -- there's parking for up to two or three vehicles at each residence, and you actually will see them hang a shingle -- and you can even regulate the signage -- hang a shingle for a CPA or for an engineer or, God forbid, a planner. COMMISSIONER HAC'KIE: Or a lawyer. COMMISSIONER HANCOCK: Or an attorney. COMMISSIONER HAC'KIE: It could happen. COMMISSIONER HANCOCK: An attorney. Well, the way things are going around here, you'd have far more than two or three clients at a time, so -- but by mixing those two things, what you've done is you've begun to make a dent in that outside trip generation. You're not going to solve the problem. But I think again, we have to look at the difference between what can be achieved and solved with this approach versus what is lost if we do not make the approach. So, you know, Tim, I don't have all the answers, but I think again it makes a dent in what we already recognize to be a continuing problem. COMMISSIONER MAC'KIE: And I don't think it obviates the need for the density reduction that we've already been -- COMMISSIONER CONSTANTINE: Agreed. COMMISSIONER MAC'KIE: -- talking about. I want to be clear about that. COMMISSIONER HANCOCK: And let me go back to that. Assuming the board is successful in allowing the density reduction from four units an acre to three units an acre in the urban area, you just -- you may remember the eighth point of my motion when we proceeded on that, and that was that that density reduction does not apply if you pursue traditional town planning. And we would then be required to adopt those standards. If we were able to do that reduction in the urban area, we have already set in place something that says if you're going to go through good design, you can have that unit back. If we cannot make that reduction from four to three units an acre in the urban area, I think we then have to start looking creatively at what other incentives that do not penalize the balance of the county can be offered in these areas to encourage good design. And that's where I look at things such as impact fee. You know, if you locate a school site within your community, one that the school board determines they need, your impact fee credit may be a higher ratio than dollar for dollar, because we recognize the reduced impact on busing, the reduced impact on, you know, teachers living and working near the school and whatnot. COMMISSIONER CONSTANTINE: Including common sense. Kind of a novel idea. COMMISSIONER HANCOCK: Yeah. So my request today, even though I'm standing down here, is to make a motion to direct our staff to begin looking at this area, and based on what I've shown today, to develop town planning solutions by working with the property owners in the building industry that will help change the character of development in this section of North Naples. COMMISSIONER MAC'KIE: I second that. And hope that you wouldn't object -- it doesn't have any part of the motion -- but that we ask them to incorporate that in as some of the design standards that are being talked about in the density reduction program, that we couple the two together. COMMISSIONER CONSTANTINE: I'm sorry, did you just make a motionfrom the podium? COMMISSIONER HANCOCK: Yes, I did. COMMISSIONER MAC'KIE: He did. COMMISSIONER CONSTANTINE: Can you repeat that for me? COMMISSIONER HANCOCK: That we direct our staff to initiate in this section of the county a town planning approach based on the four community identifications that I've done, and to work with the building industry and the property owners in that area to bring standards back for a final or eventual adoption by this board. COMMISSIONER CONSTANTINE: So it's like creating a master plan for this part of North Naples that then may serve as the blueprint for how we do that guideline. COMMISSIONER HANCOCK: Precisely. What happens is master planning, when you color the urban area yellow and you put red squares at every major intersection, you have done a gross job of master planning. What we're asking is to go to the next level, to look interior to those sections of the county and determine of the remaining parcels how best to develop those. And to do it in such a way that it's a win/win incentive for the property owner and for the balance of the county. It's being done elsewhere. We're not reinventing the wheel here. We can learn from other communities on this. But I think we have -- with our particular roadway system, we have a greater need for this than other communities. COMMISSIONER MAC'KIE: And I seconded the motion. CHAIRPERSON BERRY: Okay. Commissioner Norris, do you have any comments on this? COMMISSIONER NORRIS: I'm ready to vote. CHAIRPERSON BERRY: You ready to vote? Okay, all in favor? Opposed? (No response.) CHAIRPERSON BERRY: Motion carries -- COMMISSIONER CONSTANTINE: Five-oh. CHAIRPERSON BERRY: -- five-zero. COMMISSIONER MAC'KIE: Madam Chair? CHAIRPERSON BERRY: Yes. COMMISSIONER MAC'KIE: I have an appointment I cannot avoid at 4:00. I don't know if there are matters that require four-oh votes -- CHAIRPERSON BERRY: Yeah, there are two, but they're right up front. COMMISSIONER MAC'KIE: Okay. CHAIRPERSON BERRY: So we're just going to keep trucking along here -- COMMISSIONER MAC'KIE: Thank you. CHAIRPERSON BERRY: -- and we should get you out of here by 4:00. COMMISSIONER CONSTANTINE: I don't want to be too confident, but I bet our chairman can plow through all of this by 4:00. COMMISSIONER MAC'KIE: Come on. I've got to be somewhere at 4:00. Item #lib DAVID SHEALY REGARDING SCENIC HIGHWAY BOOKLET CHAIRPERSON BERRY: Okay, having said that, next item on the agenda is public comment. Do we have any speakers for public comment? MR. FERNANDEZ: You have one speaker. David Shealy. CHAIRPERSON BERRY: David Shealy. MR. SHEALY: Hello. It's really good to see you again. Can you hear me all right? CHAIRPERSON BERRY: Yep. Identify yourself, please. MR. SHEALY: My name is David Shealy. I live in Ochopee, out on Highway 41. I'm sorry that I wasn't here last week when you okayed the booklet on the scenic highway, although I was responsible for half of its contents. I was the only private business owner on the trail who attended any of the public workshops or meetings. I had the police called three times for simply telling the truth. I asked the Planning Department to let me -- to be sure to be at the meeting when the booklet was approved, because I wanted some type of a revision to protect private businesses on the Trail put in there. It wasn't put in there. It sealed the fate of my family, my campground. My business is destroyed. And I do not hold this against the Board of County Commissioners. I consider you all to be my friends. When I get home this afternoon, there's no food in the refrigerator, my phone's been cut off, my lights are off, and that three million dollars that the National Park Service waved in you all's faces was blood money that they took from my dead mother and father. And I have no feelings at all for those people. But that's not what I'm here to talk about today. I'm here to talk about happy things. I received a letter shortly after appearing before you with the tracks and the photograph that Mr. Dote (phonetic) had taken a photograph. I received a letter from Pamela Mac'Kie -- CHAIRPERSON BERRY: Mac'Kie. COMMISSIONER MAC'KIE: Mac'Kie. MR. SHEALY: Mac'Kie? -- and she had asked -- she had referred to me a individual to talk to about that particular situation. At that time I felt it was my duty to represent Collier County in a professional and acceptable manner. For the past 16 months, I've been on over 400 radio stations, I was on Inside Edition, 12 spots on the Daily Show with 60 million viewers. I'm fixing to be on Unsolved Mysteries, which has a potential viewing audience of 80 million. It's like about 300 million people now I've talked to. And now I see this tourist tax is going up to Fort Myers to a company. So I called them to ask them what they were doing for my business, and they refused to return my phone calls. A couple of meetings I've been to, I've seen gentlemen in here wearing suits and ties, probably driving nice cars with a good family at home, something that I've been denied the privilege of having. Ican't even have a relationship with a woman because of the situation my business is in. I'm a nervous wreck. What I'm asking for today while I'm here if I can, Mr. Hancock, of course he did leave a footprint in the Everglades as well. He was the chairman when I came before you, and he allowed me to come up and speak with you. Mr. Constantine said release the photograph, we'll subsidize the budget. God bless you. I've done a good job. I'm not saying people come to the Everglades to see Big Foot, although several do. But it does plant a seed around the world. This is an international thing. And my phone bill, I know better than to sit on the phone and ring up a $280 phone bill. That was CBS. CBS, I told them they could use my phone and they ran up my bill and I can't pay it. And I see all this money going out for promoting tourism. And, you know, you don't get paid for doing the news. You all know that. You're on the news all the time. I'm sure nobody's ever writ (sic) you a check for being on the 6:00 news. But this is something I feel is good for the area. I'm not -- I don't know how to spell very well. I'm not capable of coming to you all with a formal proposal, which is what I should do, I know that. What I'm asking you today is for your permission to speak with your attorney over the next few days and see if I can't come up with some kind of a proposal to you to where maybe I can get some help financially just to keep things going. It's fun. People love it. People love me. I'm a nice guy. And I'm full of love. And I don't understand why the government's destroyed everything my family ever stood for. We came here in 1890, and I sit in this room broke off my butt looking at people walking around in suits making money with families and kids, and here I am destroyed. Something's wrong. And it's not with you guys. And I understand that. I want to be your friend. I want a job. I want to work for you. I fly the county flag. I believe in Collier County. Barton Collier was a businessman. He's my hero. Without him there would be no Everglades National Park. And if I can set up an appointment, would Wednesday be okay? CHAIRPERSON BERRY: Who did you want the appointment with, David? MR. SHEALY: I would like to meet with you all's attorney, just to discuss the possibility. I did not intend to come in here and put anybody on the spot or make any -- CHAIRPERSON BERRY: I'm not sure that the attorney is the individual that you need to speak with. This is a rather unusual request, David, and I think if anyone, probably speaking with Mr. Fernandez would be the individual to speak with rather than the attorney. But perhaps they could both be together as far as that kind of thing is concerned. But this is a rather unusual request. But let us discuss this with them and then we can get back to you. I think I've got your phone number and we'll -- MR. SHEALY: I have no phone. CHAIRPERSON BERRY: Well, then we'll have to send smoke signals, David. MR. SHEALY: God bless you and let's hope that everything works out. CHAIRPERSON BERRY: You're going -- MR. SHEALY: It is a dire emergency. CHAIRPERSON BERRY: -- you're going to need -- you'll need to get back in touch with us, okay? After we've had -- give us until the end of the week and we'll discuss this, and I'll discuss this with the two of them. Okay? Thank you. That's our only public speaker? MR. FERNANDEZ: That's the only public speaker. Item #12B1 ORDINANCE 98-90 RE PUD-98-11, MR. ROBERT DUANE, AICP, OF HOLE, HONTES & ASSOCIATES, INC., REPRESENTING STEVE HOUSTON, REQUESTING A REZONE FORM "A" RURAL AGRICULTURE TO "PUD" PLANNED UNIT DEVELOPMENT TO BE KNOWN AS TAMIAMI PROFESSIONAL CENTER PUD FOR PROPERTY LOCATED ON THE EAST SIDE OF TAMIAMI TRAIL NORTH - ADOPTED WITH CHANGES CHAIRPERSON BERRY: Okay. Then we'll move on into the afternoon session of our public hearings. The first one is petition PUD 98-11. All persons wishing to speak to this -- this is a fezone from a rural ag. to a PUD known as the Tamiami Professional Center. All individuals wishing to speak to this item, please rise and be sworn in by the court reporter. (All speakers were duly sworn.) CHAIRPERSON BERRY: Okay, any disclosure from commissioners on this item? COHHISSIONER HAC'KIE: I met briefly with the petitioner on this item. COHMISSIONER NORRIS: As did I. CHAIRPERSON BERRY: I met with the petitioner as well, and I believe I've gotten some correspondence from the other side. COHMISSIONER CONSTANTINE: Same. MR. BELLOWS: For the record, Ray Bellows, current planning staff. Petitioner is requesting to fezone the subject 11.6 acre site from agriculture to planned unit development to allow for -- COHMISSIONER HAC'KIE: Mr. Bellows, can I ask you a question? MR. BELLOWS: Sure. COHMISSIONER HAC'KIE: Why is this not on summary agenda? MR. BELLOWS: We had one person at -- CHAIRPERSON BERRY: We have objections. MR. BELLOWS: -- the public hearing in opposition. COHMISSIONER HAC'KIE: But their objection has been resolved at this point; am I right about that? MR. BELLOWS: There were a couple others that had -- COHMISSIONER HAC'KIE: Okay, sorry. MR. BELLOWS: -- expressed objections that were resolved, but this one particular individual still is not settled. COHMISSIONER NORRIS: Are any of them here to speak? MR. FERNANDEZ: We have three speakers on -- CHAIRPERSON BERRY: I think so. MR. FERNANDEZ: -- this. CHAIRPERSON BERRY: We had two, though, that were sworn in that are going to speak to this item. COHMISSIONER NORRIS: I think we're all familiar with the project -- COHMISSIONER HAC'KIE: I am. CHAIRPERSON BERRY: I think so. COHMISSIONER NORRIS: -- and we'll just go see the speakers. CHAIRPERSON BERRY: Okay. COHMISSIONER HAC'KIE: See the speakers. CHAIRPERSON BERRY: If we could go to the public speakers. Thank you, Mr. Bellows, I think we know about it. MR. FERNANDEZ: First two speakers are Beverly Davisson and Ned Robbins. I understand Mr. Robbins is not here, but will submit a written statement to the record. CHAIRPERSON BERRY: Okay, that will be fine. MR. FERNANDEZ: And then Charles White. MS. DAVISSON: Charles White had to leave also. CHAIRPERSON BERRY: Okay. So we only have one speaker. MS. DAVISSON: We have one speaker, that's me. Good afternoon, commissioners. For the record, my name is Beverly C. Davisson, and I am the current president of the Greater Imperial Board. We're not actually speaking against this particular development, just certain aspects of it. We are here representing the neighborhoods of Imperial and North Collier County. It is our understanding that the county has plans to allow the new proposed development of the Tamiami Professional Center to exit onto Imperial Golf Course Boulevard, a privately owned street. Imperial Golf Course Boulevard is the sole entry and exit for our neighborhoods. At present there are approximately 3,000 resident vehicles using our street and the traffic light at the intersection of Route 41. Plus another 1,000 vehicles minimum go through the service gate at least twice daily. This is already a very busy intersection, and our neighborhood is yet to be completed. Preliminary plans of Hole, Hontes and Associates indicate parking spots for 131 vehicles for the two forward buildings, and another 35 spots for the assisted living cottages. With such heavy traffic heading east and west already on this particular section of Imperial Golf Course Boulevard, it will become somewhat dangerous for traffic trying to turn left onto our street from this particular development and the other developments already using this private drive behind Cronin's. So far, our master association, the Greater Imperial Board, has taken care of all maintenance, resurfacing, restriping and repair of Imperial Golf Course Boulevard. Our master association has handled all drainage and water problems. All lighting and landscaping and maintenance of them have been by the master association. The master association has had to handle the extra cost of traffic from the Imperial Plaza, the NHC Health Care Facility and the medical building on the corner. By adding additional public traffic onto this private roadway, you will increase our costs substantially to continue to maintain this roadway and the surrounding area. We do not believe that private residents should be funding and maintaining a roadway for commercial public use. We ask that thecounty pursue taking over the responsibility for Imperial Golf Course Boulevard between Route 41 and the guardhouse, and that until that time you deny further additional commercial access to Imperial Golf Course Boulevard. Thank you for your consideration. COHMISSIONER HANCOCK: Madam Chair? CHAIRPERSON BERRY: Thank you. Yes. COHMISSIONER HANCOCK: This is something we have talked about in the past. When this was originally set up, all these commercial entities were allowed access on and off of this, with the maintenance responsibility falling to the association. And the legal structure of this is what has created this problem. Nobody is required to make a fair share contribution to the association for the commercial businesses -- MS. DAVISSON: That's correct. COHMISSIONER HANCOCK: -- that are using this access. Yet when the roadway falls into disrepair, it's the residents behind the gate CHAIRPERSON BERRY: That pay. COHMISSIONER HANCOCK: -- that are paying for it. MS. DAVISSON: Yes. COHMISSIONER HANCOCK: There's got to be some way -- because I think the numbers traffic-wise, even though it can get busy when 41 is six-laned and the turn lanes are improved and lengthened, the access in and out will be far better and can handle this. The question really -- MS. DAVISSON: Possibly. COHMISSIONER HANCOCK: Possibly. And again, I know you have every reason to be skeptical. The question becomes how long and -- for how long can property owners behind a gate pay for the commercial access entry for businesses that have no responsibility for fair share. CHAIRPERSON BERRY: Is there any way that we can restructure that whereby the businesses out there do contribute to that? COMMISSIONER HANCOCK: The only way to do that would be through, in my opinion, an MSTU or MSBU. But I would have to know a little bit more than I do, and I'm sure you would, about how this was initially set up. There are a lot of developer quirks -- MS. DAVISSON: Yes, there are. COMMISSIONER HANCOCK: -- with Imperial. They have been fighting for some years. But I think if this project moves ahead, we have got to at least find somebody to pledge to the residents of Imperial that we will ask the county attorney to help us find a remedy to that, because it just -- you know, I hate to see one project bear the brunt of what others have done. MS. DAVISSON: Correct. It should be all of them. And we really would appreciate your assistance and help. COMMISSIONER HANCOCK: Including the residents of Imperial. MS. DAVISSON: Yes. COMMISSIONER HANCOCK: It should be a fair share contribution for that entry. CHAIRPERSON BERRY: That to me sounds like a fair approach, and it's not just this particular one -- MS. DAVISSON: Good. CHAIRPERSON BERRY: -- it's -- Commissioner Hancock stated, the ones that have been built in the last -- MS. DAVISSON: You have my name, address and telephone number on the -- and I have given you copies for everyone. So I would appreciate it if you could come up with some suggestions and get back to me. And I'll be -- I'm open for any help that I can give you. CHAIRPERSON BERRY: Okay. We'll hear from the petitioner, please. MR. DUANE: For the record, Robert Duane, from Hole, Montes and Associates. We have no objection to paying a fair share. We're, frankly, a very low traffic generator with a small office building and adult congregate living facility in a small retail footprint. But I can't deny that some of that traffic may not wander onto Imperial Boulevard, and we're not asking to have someone else pay for our bills. COMMISSIONER NORRIS: Mr. Weigel, could we accomplish this with an agreement between the property owners association and the developer of this project, just an agreement to determine their proportionate shares? MR. WEIGEL: Well, I think we could. I guess a question that I'll try to figure out here is does the county have to be a party to the -- COMMISSIONER MAC'KIE: No. MR. WEIGEL: -- agreement or can we merely facilitate the agreement. COMMISSIONER MAC'KIE: Yes. CHAIRPERSON BERRY: Right. MR. WEIGEL: And I think that would be the preferred course there. And -- CHAIRPERSON BERRY: Well, I think -- MR. WEIGEL: -- I'd be happy to assist -- CHAIRPERSON BERRY: -- you've got another -- I don't know, John, how familiar you are with this area. COMMISSIONER NORRIS: Yeah, I know where -- CHAIRPERSON BERRY: You know where it is. COMMISSIONER NORRIS: I've been there. CHAIRPERSON BERRY: Okay. And you also have a nursing home that's located out there as well? These people also exit onto this particular area? COHMISSIONER NORRIS: And there's also a commercial -- CHAIRPERSON BERRY: And there's a commercial -- COHMISSIONER NORRIS: -- business on the north side. CHAIRPERSON BERRY: Of course. Oh, yeah, because you have got a shopping center to the north. So I would like to see -- if we could, I would like to direct our staff to look into figuring out aproportionate share of what the cost of the maintenance is and then how you would proportion that out among all the different entities along there. COHMISSIONER HANCOCK: And we do have -- if I'm not mistaken, the board possesses the authority to adopt an HSTU for that area. Not something you'd want to do, but that may have to be kind of a lever to get everyone at the table to make sure that, you know, that again the homeowners are not unduly burdened with the repair of that street. MR. HERMANSON: Hi, I'm George Hermanson. I'm senior vice president of Hole, Hontes. I want to repeat that we would support creation of an agreement in a HSTU or whatever, so long as all the parties are involved. CHAIRPERSON BERRY: Yeah. MR. HERMANSON: Because there are a number of users that have been using it, that facility. So long as everybody is included and we pay our fair share, everybody pays their fair share, we have no objection. CHAIRPERSON BERRY: Well, the intent is not to single -- as we said, not to single this project out. It's just to be a part of the whole entire group that comes out onto this roadway. MR. HERMANSON: Thank you. CHAIRPERSON BERRY: At least that's -- that certainly I believe is the intent that I hear from this board. COHMISSIONER NORRIS: Close the public hearing? MR. BELLOWS: I would also like to point out that the access is subject to the property owner reaching an agreement with the property owners to the north for access. Right now they don't have that agreement. CHAIRPERSON BERRY: Okay. All right. So we -- well, we'll know when that happens and that will be taken into consideration. COHMISSIONER NORRIS: The thing is, if all the parties don't come to an agreement -- CHAIRPERSON BERRY: Right. COHMISSIONER NORRIS: -- the county can set up an assessment district and just assess them. CHAIRPERSON BERRY: Well, okay. At this time do we have any other public speakers on this item? MR. FERNANDEZ: None on this item, Madam Chairman. CHAIRPERSON BERRY: All right, then I'll close the public hearing. COHMISSIONER HANCOCK: Madam Chair, with the caveat that the County Commission will facilitate the establishment of a mechanism for all parties who jointly utilize the access to Imperial Golf Course subdivision to fund the repair and maintenance of that roadway, I will approve petition PUD 98-11. COMMISSIONER MAC'KIE: Second. CHAIRPERSON BERRY: Okay, we have a motion and a second for the approval of PUD 98-11. All in favor? much. Opposed? (No response.) CHAIRPERSON BERRY: Motion carries five-zero. Thank you very Item #12B2 ORDINANCE 98-91 RE PETITION PUD-98-14, GEORGE L. VARNADOE OF YOUNG, VANASSENDERP & VARNADOE, P.A., REPRESENTING GRANADA SHOPPES ASSOCIATES, LTD., REQUESTING A REZONE FROM "A" RURAL AGRICULTURE TO "PUD" PLANNED UNIT DEVELOPMENT TO BE KNOWN AS GRANADA SHOPPES PUD FOR MIXED USE COHMERCIAL DEVELOPMENT FOR PROPERTY LOCATED AT THE SOUTHEASTERN QUADRANT OF THE INTERSECTION OF U.S. 41 AND IHMOKALEE ROAD - ADOPTED WITH CHANGES The next item on the agenda is petition PUD-98-14. This has to do with a fezone from a agriculture to PUD to be known as the Granada Shoppes, which is located -- if you're looking for the location, U.S. -- corner of U.S. 41 and Immokalee Road. At this time, all persons wishing to speak to this issue, please rise and be sworn in by the court reporter. (All witnesses were duly sworn.) MR. NINO: For the record -- CHAIRPERSON BERRY: Okay, commissioners' disclosure? COHMISSIONER HAC'KIE: I have met with the petitioners on this item. COHMISSIONER NORRIS: I have met with the petitioners on this item. But Mr. Weigel, in view of the passage, I forget which constitutional amendment it was, do we have to disclose any more -- COHMISSIONER HAC'KIE: Ah, good point. COHMISSIONER NORRIS: -- or has that not taken effect yet? MR. WEIGEL: Well, I think it's better to disclose at this moment until that's horsed out a little bit further up in Tallahassee. COHMISSIONER NORRIS: Okay. CHAIRPERSON BERRY: I've heard from both sides of this issue. COHMISSIONER CONSTANTINE: As have I. COHMISSIONER HANCOCK: I've met with the petitioner, Naples Park Area Association, Property Owners of Naples Park, Second District Association, and the Collier's Reserve. COHMISSIONER HAC'KIE: I'm sorry, I forgot to mention, I've gotten quite a bit of correspondence on this matter. CHAIRPERSON BERRY: And I also would like to note for the record that I have a group of letters that I have received from -- I believe these are property owners or at least persons who live along 107th and 108th, in some cases. I'd like to enter these into the record. COHMISSIONER NORRIS: I believe we've all received copies of this. CHAIRPERSON BERRY: I believe, yeah, it says that each commissioner has received a copy, but we're going to put them into the record. COHMISSIONER NORRIS: Okay. CHAIRPERSON BERRY: Mr. Nino? MR. NINO: For the record, my name is Ron Nino. The petition before you asks that you fezone certain land zoned agricultural of the PUD to facilitate the construction of a shopping center that will comprise of 390,000 square feet; 300,000 square feet of retail, 90,000 square feet of office space. This petition was heard by the Planning Commission. The Planning Commission unanimously recommended its approval subject to the following conditions: That the BCC consider appropriate mechanisms to add the proposed -- a proposed east-west roadway on the appropriate county roadway plan, i.e. traffic circulation plan; that thedeveloper's offer to limit the office building height to four stories be accepted; and that the applicant discuss 107th Avenue access issues and potential solutions with Naples Park representatives and Collier County Transportation Department staff. Let me add that the PUD that is currently before you does include the provision that buildings will not exceed a height of four stories; however, items one and two are not reflected in the PUD that is in your agenda package. And that issue needs to be addressed at this meeting. CHAIRPERSON BERRY: Okay. COMMISSIONER NORRIS: Mr. Nino, you said items one and two. Did you mean one and three? MR. NINO: One and three, correct. CHAIRPERSON BERRY: Can we hear from the petitioner, please, or his representative? MR. VARNADOE: For the record, George Varnadoe, representing Granada Shoppes Associates, Ltd., a joint venture between Courtelis Group and the Barton Collier interest. In the interest of not losing my fifth commissioner, I'm going to forego a lot of comments about the project, albeit Mr. Reynolds is here to address some of the great planning features. I think this project is setting some design standards in terms of landscaping, in terms of integration to the pedestrian network, in terms of coordinated access points, in terms of architecture that will reset the bar or the standard for shopping center development in our community going forward. In effect, we're trying to do the best traditional shopping center that's been done in Collier County. Let me talk just a little bit very quickly about the access points, if I could, because we worked with Collier Reserve on the ones on Immokalee Road, and I know it's one of the things they want to make sure that gets covered. And I'll refer you to the aerial photograph, and you can look at either one of these. Our easternmost access on Immokalee Road lines up with the secondary access into the River Chase Shopping Center, and the secondary access for Collier's Reserve. That is to be a signalized intersection. It meets the appropriate spacing criteria from U.S. 41 and from the Creekside Park. This access point here, we line it up with -- for secondary access point into our shopping center. That, though, is to be turn restricted so there can be no left turn out, left turn in only, right turn out. That's why we had the fatality and we worked with your staff on making those changes. That, of course, will direct more traffic even from River Chase into this entrance here. And the Collier's Reserve folks are very supportive of having that signalized and having that as an intersection so the people don't try to come into their main entrance and make that movement into the shopping center, or that movement out. That makes a lot more sense when they're both oriented to the north, as far as again showing you the two access points I was talkingabout. COMMISSIONER HANCOCK: That was about to make you connect Immokalee to Goodlette, so, you know. HR. VARNADOE: Well, I looked at it and I couldn't figure it out either, Commissioner. On U.S. 41, that main access, which is one of the reasons that we've heard from the Naples Park folks is the 107th Avenue. That access point was chosen because that's where FDOT is going to have a full median opening. As you know, they're going to close most of the median openings along there. lllth will be open, this one, the one next to -- across from Pelican Bay, which is like 96th or 99th, in that range. If you want to go right to the issues and skip Mr. Reynolds, we can do that. If you want to hear about some of the great features, I would love to do that. COHMISSIONER HAC'KIE: I just bought myself a half an hour. MR. VARNADOE: Oh, perfect. Let me -- if you will, before we discuss the two outstanding issues, we have agreed to the four-story office buildings, let me let Mr. Reynolds run through some of what I think are really nice planning features very quickly for you. MR. REYNOLDS: Thank, and good afternoon. We were challenged by our client on this design to critique what we were seeing in the existing community shopping center design. Yes, sir? COHMISSIONER NORRIS: Who are you? MR. REYNOLDS: Pardon me? COHMISSIONER NORRIS: Who are you? MR. REYNOLDS: Alan Reynolds. COHMISSIONER NORRIS: Thank you. COHMISSIONER HANCOCK: That's not a quiz, it was just a question. MR. HULHERE: He got it right, though. MR. REYNOLDS: We identified four things that we found in existing shopping center design that we felt were not as good as it could be in terms of a design aspect. One had to do with vehicular access; the second has to do with pedestrian circulation; the third is the architectural design; and the fourth is landscape design. And what I'd like to do is very quickly go through these. And I won't cover all the points, but I'll try to hit the ones that I think are significantly different. The first is one that should seem very logical, and that is making sure that your vehicular circulation plan is clear and well defined. If you've driven into a lot of shopping centers, you find yourself lost in the aisles trying to find a way to circulate through and around the center. What we've done in the design is we have coordinated with the primary access points and we actually have two well-defined circulation loops in the center, this one right here and this one right here, so you can actually bypass the intersection, of course, but you can also circulate through the center, you can get to the freestanding uses, as well as the center without having to drivethrough internal aisles. Makes a lot of sense. The third loop, if you will, is the access to service vehicles in the back. That also coordinates with the locations that George has described as far as primary and secondary access to the external road system. The point here is you want to maximize the safety and the convenience for the traveling public. The second has to do with pedestrian circulation. And it's becoming more and more important to make sure that you have accommodated the pedestrian in centers. Once again, I think you find in many centers that the voyage from your car to the shopping center is one that's certainly not pleasing and in many cases dangerous. We have three different pedestrian circulation systems. The first is one that you find in all centers. And I've got some renderings I'd like to show you. COHMISSIONER HANCOCK: That's one thing this board does that we didn't do four years ago. We like pictures. COHMISSIONER HAC'KIE: We sure do. MR. REYNOLDS: What -- this is the shopping area pedestrian way. This is the circulation that occurs out in front of the main shops. What you see that we have done here is try to create that as a very -- more of an experience. We've articulated the front of the center, we've created some areas that have landscape features for pedestrians, so it becomes a pleasurable experience not only to get to the shops but actually between the shops in the front of the center. This is something that you find in a lot of centers, but we think we've taken the level of the design to the next stage. The two that you don't find in current centers are what we call the pedestrian way and the perimeter pedestrian way. And we've got -- and George has the rendering. And I'll show you on the plan where these are located. The pedestrian way cuts through the parking area and actually provides a way for people to exit their cars, get on a landscaped, protected pedestrian system to be able to move to the shopping center or from the shopping center to the freestanding parcels. And that's a rendering of what that would look like. The third is taking the perimeter pedestrian system that you often find along the arterials that does not get used because it's on the outside of the landscaping, and we've internalized that along the entire loop system. So now you can literally get on this pathway, which is going to be landscaped, it's got a 14 foot wide corridor, and can you move throughout the center in a way that is safe and, frankly, one that we think will encourage people to actually get out of their cars to walk around the center. And that connects all of the uses within the shopping center. We have included cross sections and details as to how those are going to be designed within the PUD. The architectural design features, we've really built upon what the county has already adopted in your Land Development Code. And the one thing that I think really distinguishes this center is the way we have dealt with the front or the facade. What you're going to see is along the front here, we have takenwhat used to be the in-line local space, the small shops, and we have moved those out to the front. And what those do is basically reduce the scale of the front of the center down to a more pedestrian level and create more interest along the front. So that, tied together with your existing architectural design guidelines, we think is going to create something that really has more of a sense of place. You eliminate the bulk, if you will, of the big boxes even further. And you also create these interesting little courtyard spaces along the front that we think are an opportunity for more activity, which is a positive feature. And then the final thing I'd like to talk about is the landscaping. In the PUD we have taken your already fairly stringent landscape requirements, we have specified that we will use larger trees than what your code requires, but more importantly, we're going to take that material and we're going to cjuster it in groupings so that you don't have this long series of rigidly spaced trees down the road, but rather you get cjusters that work together with some of these lakes that we have identified, so that you really create kind of an interesting streetscape on the front. And we think that's going to do a lot of things, not only from the standpoint of the aesthetic value of the center, but it creates views into the center. And, frankly, we think that some of the architecture of the buildings will be framed and the whole experience we think will be much better. So that's a very, very abbreviated presentation, really, on some of the design features. But I will tell you that we have spent more time in the design of this center than certainly any I've ever been involved with to really try to define it and try to come up with something that we think is going to be attractive and, as George said, we think set a new standard for design of shopping centers. So do you have any question? COMHISSIONER HANCOCK: I have -- CHAIRPERSON BERRY: Just a minute. The only question I have is at the corner of Immokalee Road and 41, I assume you're going to landscape that right up there to the corner so we cannot have any more political signs on that corner? COMHISSIONER MAC'KIE: Please. MR. REYNOLDS: Yeah. In fact, if you see right here on the corner, we have another thing that I've failed to mention. We have actually put in the PUD that we will have a public designed gazebo, pavilion type of a feature on the lake that will be used for -- you know, for public purpose. CHAIRPERSON BERRY: Then we could have a floating sign? MR. REYNOLDS: You could have a floating sign. CHAIRPERSON BERRY: You know, something -- I mean, we want to certainly be able to access that corner, you know, those of us who frequent these kinds of things. So I appreciate your putting that lake in, and I'm sure you'll come up with something, you know, creative to be able to float these signs in the future. COMHISSIONER CONSTANTINE: If we can hook electric in -- MR. REYNOLDS: We'll try. COMMISSIONER CONSTANTINE: -- then we can do it in neon. CHAIRPERSON BERRY: I'm only kidding. COMMISSIONER MAC'KIE: I only bought 20 minutes. CHAIRPERSON BERRY: Okay. Commissioner Hancock? COMMISSIONER HANCOCK: Frankly, not to in any way undermine Mr. Reynolds' design skills, because this is the first we've seen of something like this, I think you need to recognize, the Barton Collier family and Mark Martin, when we sat down over a year ago and we were just -- he was asking me to throw things on the wall, sucking me into his dirty little plan, everything I asked for that I would be looking for in a shopping center was already being contemplated. And then to bring a quality developer in. You may recognize the Courtelis Company, they did Waterside. COMMISSIONER MAC'KIE: Waterside. COMMISSIONER HANCOCK: So it's the right match and I think this is going to raise the bar again beyond our standards for commercial development in the future. And I want to thank the Barton Collier family for including me early on, keeping me informed and allowing me to have the input between the community associations and the project design team. I think it really helped. MR. VARNADOE: In kind of response to Commissioner Berry's point, since we are going to have a coordinated integrated and consistent architectural theme and signage theme and color of the buildings and roof materials, if they're political signs, we'll make sure they fit in with our decor and we won't be having -- you know, peach colors and earth tones and not red, white and blue -- CHAIRPERSON BERRY: Right, the typical things. MR. VARNADOE: But seriously, some of the things that the developer has done that is different, as Alan was pointing out, the public feature at the corner, so you're not sitting there looking at a commercial building, and then moving the water management feature of the lakes out to the exterior and giving up what the developers consider very valuable frontage on the roadway so that you get a pleasing streetscape, I think it is different in this community, and I think it is setting another standard, and it's one of our more important corners, and I'm happy to be associated with it. And I guess that the other thing I need to get on the record is that the -- with regard to transportation analysis, transportation analysis indicates that this center works with our current transportation system. That's assuming, of course, that U.S. 41 is six-laned, which is within the three-year time frame, so we get to count that as built without degrading any of our roads in the area. And I need to have that as a preface for some of our later conversations here. CHAIRPERSON BERRY: Commissioner Hancock? COMMISSIONER HANCOCK: I think that's anticipating what I'm about to request. There are two community issues that we've kind of laid the groundwork for in the past that I've discussed with these gentlemen and that need to be resolved today. When Creekside Commerce Park came in, it was my goal and my intent to eventually connect Goodlette-Frank and U.S. 41 along this area without ever having to get on Immokalee Road. Creekside Commerce Park made the agreement to do just that. The problem we have here as we look at this parcel and the one next to it, as I understand it, is that that future roadway does not show up on the county's roadway plan. Because of that, if we sit up here and request that they make that connection, they're not eligible for any type of impact fee credits for that work. The problem I have with that is that roadway, in my opinion, in the future build-out of this U.S. 41/Immokalee Road intersection is critical. Particularly not just for the shopping center development, Creekside, and the residential development around it. As Mr. Varnadoe said, I picked apart their TIS and I could not find a way to force this particular project to provide that connection. In addition, there's an intervening parcel that is under the same ownership that is not subject to this fezone. So if we are to make a quote, unquote, requirement of that interconnect, we are going to have to designate this as a county road on our plan in order to take advantage of cost-sharing of the creation of that roadway. And so if we move ahead today on this project, I think that has got to be part of the direction, or else we're going to fail to complete what we initiated with the Creekside Commerce Park. CHAIRPERSON BERRY: What do we have to do? COMMISSIONER HANCOCK: It's my understanding -- and Mr. Kant, maybe you can confirm this -- if we give direction to county staff to indicate this roadway in a configuration to be determined by working with the property owners on our county road plan, it would then qualify an agreement for impact fee credits in the future. Is that correct, Mr. Kant? MR. KANT: Edward Kant, transportation services director. In essence, that's correct, Commissioner. Presently that road does not appear in the growth management traffic circulation element. That -- at the HPO and the board's direction, staff could include that as part of the next round, which is probably in the next nine -- six to nine months. Until that roadway appears on the -- on that traffic circulation plan, it would not be eligible for any type of road impact fee credit arrangement under developer contribution agreement. Again under the goodness of their heart, if they want to go and do it, that's fine. COHMISSIONER HAC'KIE: Well, but we want to encourage them to do it. I mean, that's an extremely important public purpose. We've got to give them the incentive to build that road. That's one of the most important things we have in front of us -- COHMISSIONER HANCOCK: And likewise, if the road -- COHMISSIONER HAC'KIE: -- so how quickly can you amend the plan to include that road? MR. KANT: It's my understanding, based on discussions with thecommunity development staff, that we have about six to nine months as we go through the cycle of making the amendments. COHMISSIONER HAC'KIE: And does that -- MR. KANT: This year, as you're aware, we just completed, so we'll have to wait -- MR. VARNADOE: Mr. Kant, we have sent it up to DCA for their work report, right? And it comes back for adoption, so it conceivably could be added on this year. MR. KANT: I'm not an expert in those issues. I would defer to Mr. Hulhere or one of his staff to answer that question. MR. HULHERE: I think Mr. Varnadoe is correct, that we could add it on -- CHAIRPERSON BERRY: Name. MR. HULHERE: I'm sorry, for the record, Bob Hulhere, planning services director. -- when the board addresses the issue of -- at adoption. COHMISSIONER HANCOCK: There's a -- I don't want anyone to get a misperception that I am trying to give impact fee credits. That's not the goal. The goal is -- CHAIRPERSON BERRY: We want the road. COHMISSIONER HANCOCK: -- to get that roadway in place -- COMMISSIONER MAC'KIE: Quickly. COMMISSIONER HANCOCK: -- to take the burden off of Immokalee Road. The problem we face is this project alone does not trigger the need for the roadway, so we cannot legally place the burden for it on these individuals, as I understand the law. COMMISSIONER NORRIS: Legally or fairly. But the important point is that one of the shortcomings of our community since day one has been east-west connectors, and so here's our opportunity with everybody in agreement to go ahead and do it. MR. VARNADOE: The -- and I think that as I've heard all of you say at one time or another, we'd rather build more two-lane roads than we would less six-lane roads. Our traffic analysis, I think Mr. Kant agrees with it, this would serve as a minor collector linking of course Goodlette-Frank and U.S. 41 and alleviate the busiest -- or help alleviate traffic on the busiest section of Immokalee Road, that being from Goodlette to U.S. 41. We would not ask for impact fee credits for the entire right-of-way and the road construction. Now, this is all hypothetical, because I don't want to be aggravated by aggregation under some DCA rule, but if the county put that on their road plan, we would come back to you with a contribution agreement that said we'll throw in the right-of-way with no -- and not ask for any recompense or impact fee credits for that. We would look for impact fee credit for the design and construction of that road facility. I will tell you that our initial look at it through Wilson-Miller is that's about a 50/50 cost-sharing arrangement that is the value of the right-of-way versus the design and construction cost. So we'd be -- have a -- impact a public/private partnership on about a 50/50 basis. COHMISSIONER HAC'KIE: So we get the right-of-way for free. COHMISSIONER HANCOCK: Right. And I even went back and looked at what if we, you know, went another way with it and in the end it turned out to be pretty much a wash of the cost; it -- COMMISSIONER MAC'KIE: The same thing. COMMISSIONER HANCOCK: -- wasn't significantly the same -- or significantly different. So if we can proceed with directing staff to put that on the roadway network plan at the earlier possible point. MR. KANT: That's correct, Commissioner, but that would have to go through the MPO and then from the MPO would come back to this board for a final action. COMMISSIONER MAC'KIE: We can do that. CHAIRPERSON BERRY: We should be able to do that. MR. KANT: And that -- I think you have an MPO meeting in December, sometime -- CHAIRPERSON BERRY: Yes. MR. KANT: -- in December. We did meet with the developer's representatives, and we did receive some preliminary traffic numbers. And I would concur with what Mr. Varnadoe is representing with respect to the functioning of that roadway as a collector -- as a minor collector road. COMMISSIONER HANCOCK: Okay. MR. KANT: We wouldn't see the necessity for that to be more than two lanes, but it would be what we would call an enhanced two-lane sections with turn bays to maintain the capacity. The -- as far as the costing is concerned, I don't have a feel at all for the cost of the land values, but I think that we're talking probably approximating a million dollars for the cost of the improvements, because there's a rather significant crossing of the Pine Ridge Canal to connect up to Goodlette-Frank Road. COMMISSIONER MAC'KIE: But we'll get to that when we do -- MR. KANT: So it seems that it would be a reasonable approach, yes. CHAIRPERSON BERRY: Good. MR. VARNADOE: Just to give you some -- these are in gross numbers. The -- in using 1998 traffic, if you built that road and there was no construction at Granada Shoppes and no construction at Creekside, the projections are that road would handle somewhere in the neighborhood of 6,000 to 6,400 trips per day. Those come directly off of Immokalee Road, thereby reducing the traffic on Immokalee Road. You put both Granada Shoppes and Creekside in there, that number goes up to about 8,000. So you can see that we're using about 20 percent or a little more of that road for those projects. Therefore, I think the 50/50 cost sharing is a very -- COHMISSIONER HAC'KIE: Generous. MR. VARNADOE: -- win/win situation for the county if you -- CHAIRPERSON BERRY: That's great. COHMISSIONER HANCOCK: If we have general agreement on that point, it raises the next point that the Naples Park folks have been concerned about, and that is that this entry point on U.S. 41 lines updirectly across from 107th. You may remember the discussions we had with FDOT on 107th being appropriate or inappropriate for a median cut due to that circle that exists at the end of the two? What has been proposed by the residents of Naples Park and I think is fair -- we can all sit here and say well, gee, who would cut through Naples Park from the shopping center to get somewhere? We can ask that 'til the cows come home. People do it. It's the nature of drivers. What has been proposed -- and I believe the petitioners here have had an opportunity to look at this and speak with Ms. Fitz-Gerald on this -- is a closure of 107th and 108th at the circle portion of that roadway. Obviously there are some design issues that would be associated with that that need to be worked out. What I have -- I understand, and Mr. Varnadoe, correct me if I'm wrong, but the petitioner here today, in trying to alleviate or address that problem, has agreed to a time specific window of funding that solution as it's presented. Am I correct in that statement, Mr. Varnadoe? MR. VARNADOE: That's correct. And the only reason I think for a time solution is to make sure that goes out far enough that the county and the residents up there can decide if that's what they want to do. We've talked with Ed Kant, we've had Jeff Perry look at it. It appears to I think everyone -- and Ed, you can speak for yourself -- that if you want to cut off and not allow Naples Park to use that 107th Avenue, what they have proposed is the correct solution, that is to cut off so you've got a circle and 107th and 108th are both cut off, so the commercial interest on 107th and 108th are served by 41. But to get out residential, you have to go out the back and down to lllth or down to some other street. We don't want to, frankly, get into the posture of making that decision. But if the county and the residents up there will implement that solution of cutting off 107th and 108th, we agree -- that is, Barton Collier agrees -- to pay for that for a period of five years. And -- I mean, five years was just my number, because I think that they would probably say six months, because they want it done now. CHAIRPERSON BERRY: Excuse me, Mr. Varnadoe. What is a logical time frame, Mr. Kant, do you think? I mean, because you'll have to have public hearings, I'm sure. MR. KANT: Well, there are several ways of approaching it. What we -- we met with the Naples Park folks and with the developer. And frankly, from the staff's point of view, if they had wanted to go through the traffic calming process, we -- our time line typically runs anywhere from 18 to 22 months. If, on the other hand, it was a stipulation of the zoning, and my concern was that as long as we could show that there was neighborhood support for it, we certainly wouldn't oppose it. We're not here to advocate it. That's the neighborhood issue. As far as whether or not something like that should be implemented in the next five years, I think that's more than generous. If we assume that the shopping center is up and operating in a period of two to three years, typically we might say well, let's see -- let's let it settle for a bit, but if they want to have this concurrent with the opening of the shopping center -- again, as long as we can get the neighborhood consensus, then we know that it's truly a citizen driven initiative. We obviously don't have a position to take except to make sure it's done properly. CHAIRPERSON BERRY: That would be my primary concern, that -- MR. KANT: Yes, ma'am. CHAIRPERSON BERRY: -- and I spoke to Ms. Fitz-Gerald about this very thing. We -- that was part -- a good bit of our conversation was my concern to make sure that if they did this that you had a good representation of people. So it's not something that, you know, at the whim of a few we do this. I want to make sure that there's something that's -- MR. KANT: If for some reason the center were not to start for two or three years, there would be no reason to do this for that period of time. CHAIRPERSON BERRY: Right. MR. KANT: But if they started next week and they were up and operating this time next year, then obviously they would want some controls in place. COHMISSIONER CONSTANTINE: Under no circumstance do you see it being necessary to have longer than five years? MR. KANT: Assuming that that is conducent (sic) with their time line, that's correct, sir. COHMISSIONER HANCOCK: Once this project is rezoned, if something should happen and it not go forward, the commitment of funding that improvement still stands for a period of five years, because someone eventually is going to develop this site. I hope it's these folks this way. But -- so what I would suggest is that we include in any motion direction to our transportation staff to develop a road closure of 107th and 108th, consistent with the plan produced by the property owners of Naples Park allowing for pedestrian access through those closure points to the shopping center, and that that commitment of five years be such that the funding be made available and the project be completed at the earliest of either the opening of the shopping center or the end of that five-year period. COHMISSIONER CONSTANTINE: I assume that they prepare that for our review. But I'd like to -- I don't want it now as part of this year, but I'd like to actually hear that and -- CHAIRPERSON BERRY: Separate item. COHMISSIONER CONSTANTINE: Yeah, separate item. MR. KANT: We'd be pleased to return to you with a proposal, yes. COHMISSIONER HANCOCK: That -- if you include what I just said in the motion, it was direction to staff to bring it back with those being the conditions. COHMISSIONER CONSTANTINE: Thank you. CHAIRPERSON BERRY: Okay. And in terms of getting this on theHPO, Mr. Kant, with the HPO? MR. KANT: I can't speak for Gavin, but I don't see any reason why the -- that couldn't become an agenda item. I'd have to discuss it with him. I'm not sure I know all the mechanics of it. CHAIRPERSON BERRY: Okay. All right. MR. VARNADOE: One final item that I'd be remiss if I didn't cover having to do with the east-west road, our discussions with the Second District Association and Collier's Reserve was that they wanted that east-west road open concurrently with the shopping center, and that your contribution agreement would have that language. We might say on or about, you know, within 90 days, but the idea is to have that road open when that shopping center is there so that it immediately starts handling excess traffic. COMMISSIONER HANCOCK: That's logical. MR. VARNADOE: I just wanted to cover that. That was one of the things that we had agreed with them on. CHAIRPERSON BERRY: Okay. At this time do we have any public speakers, Mr. Fernandez? MR. FERNANDEZ: Yes, we do, Madam Chairman, we have five. The first is Everett L. Walker, and the second is Sally Barker. COMMISSIONER HANCOCK: Commissioner Mac'Kie, at what point do we lose you? COMMISSIONER MAC'KIE: 4:15. COMMISSIONER HANCOCK: Okay. Five minutes. MR. WALKER: I'm Everett Walker, and a resident of Cellier's Reserve and a member of a committee that was formed to review such projects as this. And I must say, they've addressed all our concerns, so I don't have anything to address at this point other than to support the project. I do wish to make sure that the road is completed at the opening of the project. CHAIRPERSON BERRY: Very good. Thank you. MR. FERNANDEZ: Sally Barker, then Vera Fitz-Gerald. MS. BARKER: For the record, Sally Barker from the Property Owners Associations of North Collier County. I'll keep this short. I promised the Barren Collier Companies I would say something nice about them, so I am here to say something nice about the Barren Collier Companies. We really appreciate their willingness to listen to us and to take into account our concerns on the building heights, the need for the new east-west road and their willingness to donate the right-of-way, which is the major part of this package. And for the willingness to work with Naples Park on 107th. We really commend the Barren Collier Companies and we are grateful for their cooperation. Thank you. CHAIRPERSON BERRY: Thank you. MR. FERNANDEZ: Next speaker is Vera Fitz-Gerald and then Tom Mezzer. MS. FITZ-GERALD: Hi, I'm Vera Fitz-Gerald. I don't want to lose Pam Mac'Kie. COMMISSIONER MAC'KIE: Sorry, I never dreamed. MS. FITZ-GERALD: I had a beautiful speech, but it's irrelevantnow. Thank you, Commissioner Hancock, you said everything I wanted to say. I have a -- we have the support. We have the support right now. We don't have to go through all the thing. I have 52 -- no, I haven't, I got more. I got, well, 53 percent of the property owners on 107th signed in these 170 petitions. I have -- I can't remember -- I don't know exactly what the amount is in percentage on 108th, I'm not that fast, but we have 57 percent of petitions signed on -- from the properties on 108th, so we have that support and we have been working like dogs for three weeks, believe me. I know all of my neighbors now. I want to tell you, it's been a wonderful experience. What we -- oh, I've met some really nice people. I didn't know we had so many nice people. We do have some cruds, though. We had 62 percent absentee owners. 62 percent of absentee owners on 108th. We have a little over 40 percent on 107th. To get overwhelming support from those homeowners tells you that there's -- they're right behind us 100 percent. We had no problem. They started to fax them to me. One guy came this morning at 7:30 and he said get my vote in. So they're really behind us. And what we do want to ask you, and that's all I'm going to say, is please, would you support Commissioner Hancock and include this in your motion as your direction. I believe that's the correct wording. And here are the petitions. And some of them are -- is there anything else I need to say? COMMISSIONER HANCOCK: I think we got it covered, with two minutes to go. MS. FITZ-GERALD: Okay. Thanks a million. MR. FERNANDEZ: Next speaker is Tom Mozzer and then Robin Gainer. MS. FITZ-GERALD: Tom had to go. MR. FERNANDEZ: Final speaker is Robin Gainer. MS. GAINER: I don't need to say anything either. It's all taken care of. CHAIRPERSON BERRY: Your name, please? MS. GAINER: Oh, Robin Gainer. CHAIRPERSON BERRY: Thank you. MS. GAINER: Nice to meet you. CHAIRPERSON BERRY: Thank you. COMMISSIONER HANCOCK: Sometimes government's a beautiful thing, it's just rare. COMMISSIONER NORRIS: Close the public hearing. CHAIRPERSON BERRY: Okay, we'll close the public hearing, if we have no other speakers. COMMISSIONER HANCOCK: Madam Chair, I'm going to move approval of PUD-98-14 with two stipulations: That we give direction to staff to place the item before the MPO and ultimately the board to designate the connector roadways and minor collector from U.S. 41 to Goodlette-Frank Road and enter a cost-sharing agreement around these -- in the arena that has been proposed here today. The second item is to direct transportation department to developa traffic calming approach to 107th and 108th, consistent with the plan provided by the property owners of Naples Park, with the element of pedestrian connections to the shopping center through those closed areas. COMMISSIONER NORRIS: Could you restate that motion? COMMISSIONER MAC'KIE: And one and three, the items that Mr. Nino's going to remind you that aren't incorporated into -- COMMISSIONER HANCOCK: And Mr. Nino -- MR. NINO: And that wording to that effect would be added to the PUD to cover items one and three? COMMISSIONER HANCOCK: Yes. That agreed also. COMMISSIONER NORRIS: Second. CHAIRPERSON BERRY: We have a motion and a second. If there's no further discussion, I'll call for the question. All in favor? Opposed? (No response.) CHAIRPERSON BERRY: Motion carries five-zero. Thank you. COMMISSIONER MAC'KIE: Everything that's left only needs three votes, but Mr. Cardillo's going to kill me if I leave. Item #13A1 RESOLUTION 98-463 RE PETITION SV-98-2, WILLIAM D. KEITH, ESQ. REPRESENTING JOHN P. ARDILLO AND DNAIEL R. MONACO REQUESTING 15 FOOT VARIANCE FROM THE REQUIRED SETBACK OF 15 FEET ESTABLISHED FOR SIGNS TO 0 FEET ALONG TAMIAMI TRIAL EAST AND A 5 FOOT VARIANCE FROM THE REQUIRED SETBACK OF 15 FEET ESTABLISHED FOR SIGNS TO 10 FEET ALONG OSCEOLA AVENUE FOR A POLE SIGN FOR AN EXISTING LAW FIRM LOCATED AT 3550 EAST TAMIAMI TRAIL - ADOPTED CHAIRPERSON BERRY: Okay, the next item is petition SV-98-2. This has to do with variance for -- a 15-foot variance for a -- from the required setback and 15 feet established for signs. COHMISSIONER CONSTANTINE: Madam Chairman, I know the last thing we want to do is short circuit this, but it seems to me -- CHAIRPERSON BERRY: Wait, I have to swear everybody in. Everybody wishing to speak to this item, please stand and be sworn in by the court reporter. (All speakers were duly sworn.) CHAIRPERSON BERRY: Okay, any disclosure, commissioners? COHMISSIONER HAC'KIE: Yes, I met with the petitioner. COHMISSIONER NORRIS: I met with the petitioner. CHAIRPERSON BERRY: I met with the petitioner. COHMISSIONER CONSTANTINE: I met with the petitioner. COHMISSIONER HANCOCK: I met with the petitioner who will herein fore be referred to as Pauly. MR. CARDILLO: And I am the petitioner. COHMISSIONER CONSTANTINE: Madam Chairman, this just seems like a hardship created by the unusual circumstances of U.S. 41. The building's been there a long time. Mr. Cardillo and his folks have been there a long time. We've expanded -- or the state's expanded 41, altered it. Seems like a common sense -- COHMISSIONER HAC'KIE: And an improvement -- COHMISSIONER CONSTANTINE: -- request. COHMISSIONER HAC'KIE: -- to an improving area. COHMISSIONER NORRIS: Let's let -- have Mr. Cardillo at least say something. He's been here all day. MR. CARDILLO: I'm happy not to say anything. But my name is John Cardillo. We have been there for 24 years. Everything is changed. The mangroves have gotten much higher. They can't be touched as theyare now. The bridge has gotten higher. Our signs -- COHMISSIONER HAC'KIE: That's enough. CHAIRPERSON BERRY: John has less hair. COHMISSIONER NORRIS: In the interest of brevity here, we'll go ahead and stipulate that you have substandard property there. MR. CARDILLO: We, it's sub-bridged property. It's troll life by flow. CHAIRPERSON BERRY: As opposed to submerged property? MR. CARDILLO: That's right. CHAIRPERSON BERRY: This is not quite the same, okay. COHMISSIONER HAC'KIE: Talk to George, he set him up to say that. I heard it. COHMISSIONER CONSTANTINE: You want to close the public hearing. MR. CARDILLO: And I heard that in the hall, that's where I heard that term. CHAIRPERSON BERRY: Do we have any public speakers on this? MR. FERNANDEZ: Mr. Cardillo is the only one who signed up to speak. CHAIRPERSON BERRY: Why did that not surprise me? Okay, I'll close the public hearing. COHMISSIONER CONSTANTINE: Move the item. COHMISSIONER HAC'KIE: Second. CHAIRPERSON BERRY: We have a motion and a second for the approval of item SV-98-2. COHMISSIONER HANCOCK: Subtitled the Pauly variance. CHAIRPERSON BERRY: All in favor? Opposed? (No response.) CHAIRPERSON BERRY: Motion carries five-zero. Thank you. MR. CARDILLO: Thank you very much. COHMISSIONER HAC'KIE: Mr. Weigel, the remaining items I understand only take three votes. I apologize for leaving -- CHAIRPERSON BERRY: I understand. COHMISSIONER HAC'KIE: -- I had no idea we'd be here this long. CHAIRPERSON BERRY: I understand. You're excused. COHMISSIONER HANCOCK: Pam, before you leave, I just want to mention real quick, I've been working with Vince in the planning staff on kind of a blue ribbon committee on new and traditional town planning, so I just wanted to let you guys know that they have already started moving in that direction. It's just now they have a target area to do it in. And I failed to mention that when I was speaking earlier. I just wanted you to hear that, because I knew you'd be interested. COHMISSIONER HAC'KIE: Now you and I can have a beer without anybody complaining. COHMISSIONER HANCOCK: We could have before, but so what. COHMISSIONER NORRIS: You're buying. (Commissioner Hac'Kie exits the boardroom.) Item #13A3 RESOLUTION 98-464 RE PETITION V-98-18, C. DEAN SHITH OF Q. GRADY HINOR REPRESENTING VICTORIA LAKES CONDOHINIUH ASSOCIATES, REQUESTING A 23 FOOT VARIANCE ALONG BERSKHIRE STREET AND NOTTINGHAN DRIVE FOR CARPORTS FOR PROPERTY LOCATED IN NORTH NAPLES, ONE MILE SOUTH OF IHMOKALEE ROAD ON THE WEST SIDE OF AIRPORT ROAD - ADOPTED CHAIRPERSON BERRY: Okay, the next item on the agenda is petition V-98-18. This is Victoria Lakes Condominium Associatesrequesting a 23-foot variance from the required 30-foot front yard setback. Mr. Badamtchian. MR. BADAMTCHIAN: Good afternoon, commissioners. CHAIRPERSON BERRY: I'm sorry, I need to swear you in, I think. (All speakers were duly sworn.) COHMISSIONER HANCOCK: Madam Chair, no disclosure, no-brainer. We did this to the building next to it. They're already in place. This is the exact same thing. MR. BADAMTCHIAN: Correct. The northern portion of the same development called Victoria Shores. COHMISSIONER HANCOCK: I've driven by. It looks great. CHAIRPERSON BERRY: Okay, do we have any public speakers on this? MR. FERNANDEZ: None on this item, Madam Chair. CHAIRPERSON BERRY: Okay, if we have no public speakers and there's no questions for the petitioner, I will close the public hearing. Do I have -- COMMISSIONER HANCOCK: Move approval -- CHAIRPERSON BERRY: -- a motion? COMMISSIONER HANCOCK: -- of V-98-18. COMMISSIONER NORRIS: Second. CHAIRPERSON BERRY: Okay, we have a motion and a second. favor? Opposed? (No response.) CHAIRPERSON BERRY: Mac'Kie's absence. Item #13A4 All in Motion carries four-zero, noting Commissioner PETITION A-98-4, WENDELL R. & DIANE L. KEENE, REQUESTING AN APPEAL OF THE COLLIER COUNTY PLANNING COMMISSION'S APPROVAL OF PETITION BD-98-26 ON AUGUST 20, 1998, FOR PROPERTY LOCATED AT 400 WILLETT AVENUE, CONNORS VANDERBILT BEACH - APPEAL DENIED Moving on then to the next items, petition A-98-4. This is requesting an appeal of the Collier County Planning Commission's approval of petition BD-98-26 which took place on August 20th, 1998. And I don't believe we need to swear anyone in. MR. REISCHL: Good afternoon, commissioners. Fred Reischl, planning services. As you stated, this is an appeal of the Planning Commission decision on lot -- boat dock approved on the lot that you see on the monitor. The appellant is the property owner to the south. And as can you see the pie-shaped configuration of the lots, this is the appellant's lot nine down here. And the appeal is based on the view from lot nine, which basically would be across the property of the person who is granted the boat dock extension. Just a point of what went on at the hearing. This boat dock extension is only for the boathouse. The dock itself only protrudes into the waterway a maximum of 20 feet. Without the boathouse, this would not be required to come before the Planning Commission, it would have been issued with a building permit only. So the Planning Commission looked at the boathouse criteria and unanimously approved the extension at this location. CHAIRPERSON BERRY: Okay. We'll hear from the petitioner. MR. KEENE: Wendell Keene. I'm sorry I was unable to attend the meeting on August 20th. We did, however, send a letter stating ourobjection. We also hired a representative to represent us at the meeting. And I don't know what happened, but he was unable to attend or he didn't attend, didn't make the meeting. And that's the first set of photos that you have. COMMISSIONER CONSTANTINE: I hope he didn't charge much. MR. KEENE: Well, I don't know -- actually, he did. But that would be the first photos that you have marked on -- sorry, I'm not used to this. CHAIRPERSON BERRY: That's okay. Take your time. MR. KEENE: On July 8th, '98. Those were the photos that were supposed to be submitted at the August 20th meeting. That was when the pilings were just being driven for the dock. We would not have purchased the property had there been a boat lift or a boathouse in that location. We paid $450,000 for our property because of the unobstructed view that we had when we bought the property. We could have purchased property for much less, but it wouldn't have had the view that we're looking for. As you can see from the pictures, the boat dock will block our view in almost every room. I think the easiest photo to look at would be a view from across the bay. It actually shows the pilings coming up to the last window on your right. The window on your far left is the master bedroom. The next window is our living room. The next window is the kitchen. And the other -- last window on the far right would be the living room window. And I think it shows them across, or if you look at the photos, a view from the master bedroom or a view from the living room, that the dock, and especially if a roof was put over it, would stop our view from the bay. In fact, we wouldn't see any water at all across the bay. I don't feel there would be a hardship in this case for 400 Willett Avenue by not putting a boathouse there. They have 172 feet to build a boathouse. We would not object to a boathouse on the other end of the property, nor do I feel anybody else would object, because a house on the other side of them faces in the opposite direction. they wouldn't see the boathouse from that direction. I think you can tell from the photographs that it definitely does block our view. So we are asking you to appeal the decision to allow the boathouse. We feel the decision to allow it was made without the details and facts that I'm presenting here today. Is there any questions that you might have regarding -- CHAIRPERSON BERRY: Commissioner Hancock? COHMISSIONER HANCOCK: Mr. Willett (sic), when you bought the site, did you tear down the existing home and construct the home that we see here? MR. KEENE: Yes, I did. COHMISSIONER HANCOCK: Okay. It appears as if you oriented the majority of your views to the west and northwest as opposed to the west and southwest; is that true? MR. KEENE: Because of the setback, we started out -- the setback was only 10 feet from the water. Then they changed that and we had to set it back 20 feet. And then if you take into account of the lanai,we're setting back quite a ways from the water. So our view would be -- to the northwest is going out of our master bedroom, going out of our living room, and the kitchen would be facing directly over the boat lift, as you can see. COHMISSIONER HANCOCK: I guess that's why I asked the question. I see it looks like you have a sizeable boathouse on the south side of your property. MR. KEENE: Yes, we do. COHMISSIONER HANCOCK: You're unobstructed view, the view you would have absolute and total control over, is to the south and west, yet you designed the house and oriented it to the north and west, I assume to take advantage of the bay view. In doing so, you created a site line across your neighbor's property with the elevation of your home that is roughly consistent with the bottom of the eaves of their house. I guess what I'm asking is, if you maybe didn't take into consideration the fact that without a roof this boat lift as it exists today is consistent and legal -- I don't understand, with all of the expense of architecture why you would orient a view that would look across someone else's property where they could even put a boat lift of the existing size right there. Is that something you just didn't consider? MR. KEENE: Oh, there isn't something -- yeah, we're not fighting the lift. We understand that they have a right to put the lift there. It's 15 feet off the lot line and we understand that. COMMISSIONER HANCOCK: Okay. MR. KEENE: What we're objecting to is the boathouse -- COMMISSIONER HANCOCK: Putting a roof on it. MR. KEENE: Putting the roof on it. COMMISSIONER HANCOCK: And how high is your finished floor elevation? MR. KEENE: We -- in that area is -- I believe we have to be 11 and a half feet above the whatever water -- you know, medium -- COMMISSIONER HANCOCK: Mean high water. MR. KEENE: I don't understand that. COMMISSIONER HANCOCK: I think it's actually above what's called MG -- MR. KEENE: I think it's actually our -- the height of our living area is about eight and a half feet. COMMISSIONER HANCOCK: What is the difference between the peak of the proposed roof and your floor elevation? Do you know what that difference is? MR. KEENE: No, I -- from the proceedings of the other meeting on August 20th, I heard that they were going to put it just one foot higher than our living elevation. But I think if you look at the photos taken on September of '98, you know, we're not looking -- we're not close enough to be looking over their roof, even if it's a foot higher or a foot lower. We're looking down at the water. From the distance we are from the water, we're actually looking down at it. And I think all the photographs that I have here shows that. Youknow, we wouldn't be looking over the top of the one-foot roof. We're actually looking down at it. So we're looking at the top of the roof. In photographs -- in fact, on all the photographs. COMMISSIONER HANCOCK: We had a similar issue to this about two months ago, and we had -- I adopted the rule of what's good for the goose is good for the gander. And if you look at the other side of your property, you more or less with the existence of your covered boathouse did to your neighbor to the south -- or to the east what this gentleman is doing to you, per se. MR. KEENE: That boathouse was there when we bought the property. And when it was built, they would have had to go through the same things that we went through, and obviously there was no objections to that boathouse being built. COMMISSIONER CONSTANTINE: How big is your boathouse? MR. KEENE: I don't know exactly what size it is, but it's a good size boathouse. COMMISSIONER HANCOCK: Okay, thank you. COMMISSIONER CONSTANTINE: It looks as big as the house. MR. KEENE: Well, no. But it was existing when we bought the property. COMMISSIONER NORRIS: I'm looking at the pictures taken September, '98, and it shows -- I guess that's your neighbor's boat up on the lift -- MR. KEENE: Yes. COMMISSIONER NORRIS: -- is that correct? MR. KEENE: It shows -- COMMISSIONER NORRIS: I don't think we have, Mr. Reischl -- we don't have any way of limiting the size of a boat you put on a boat lift, other than the size -- the physical size when it's built in the first place? MR. REISCHL: And meeting setbacks, correct. COHMISSIONER NORRIS: And meeting setbacks, of course. But I think my point is that if your neighbor bought a larger boat that had a cuddy cabin, for example, on it, it could probably be lifted up there five or six feet higher than the roof is going to be on this, and there's no restriction to stop him from doing that. MR. KEENE: I know it's probably hard to understand, but if you walk through the rooms and visualize a roof going across there, the -- between the pilings, it would really hurt the view of our house considerably. COHMISSIONER HANCOCK: Have you offered to pay for the relocation of the pilings for a new boathouse? MR. KEENE: When the pilings were first put in, I was assured -- I took them over, and I took Jan over, Jan Story, and she was quite surprised. She didn't really realize that it was going to block the view. Someone else is building the boathouse for them. And I was told that, you know, it wouldn't be objectionable, you know, but I would agree, you know, that they would come to me and I would have to agree to it before they would, you know, continue or build the boathouse. Iwasn't contacted -- COHMISSIONER HANCOCK: Well, my question was, have you offered to share in the cost of relocating the whole thing to protect your view? MR. KEENE: I would be happy to. Although, that has not been a discussion. COHMISSIONER HANCOCK: Okay, thank you. I'm sorry, Commissioner Norris, did I cut you off on your -- COHMISSIONER NORRIS: No, that was -- well, my point was that without a roof, you can go up and restrict legally -- COHMISSIONER HANCOCK: You can have a camera on that thing. COHMISSIONER NORRIS: -- will restrict the view even farther with -- you know, if you had a boat with a different configuration on it. COHMISSIONER HANCOCK: And particularly the new ones that have the radar bar over the top -- COHMISSIONER NORRIS: Sure. COHMISSIONER HANCOCK: -- and the secondary control points up top? that. COHMISSIONER NORRIS: Right, like a fly bridge or something like A little fly bridge boat or something -- COHMISSIONER HANCOCK: So with a roof, at least you -- COHMISSIONER NORRIS: -- like that would be far more restrictive to your view, and it would be within the legal limit. MR. KEENE: Excuse me, I believe that is probably true, but we could still have a view from the front, the back. Once you put a complete roof on, that's it. I mean, you don't see anything. Now, whether they buy a bigger boat, I'm sure that with the configurations of most boats that I've seen, especially in this waterway, as you probably know, during low tide we have about 18 inches of water. In high tide it's -- I forget what they told me, but it's -- we -- there's no large boats in Vanderbilt Bay, so I don't see anybody coming into the boat (sic) with radar or with huge tops or anything, because it just doesn't lend itself to that. That's why Vanderbilt Bay has not, you know, been built up like other areas. It's got a very shallow waterway. Host boats are deck boats or smaller. COHMISSIONER NORRIS: I don't have any more questions. CHAIRPERSON BERRY: Okay, no more questions? COMMISSIONER CONSTANTINE: Just -- CHAIRPERSON BERRY: Commissioner Constantine? COMMISSIONER CONSTANTINE: -- a couple. As I look at these pictures, like a view from the kitchen, you appear to be looking -- as I -- I'm just assuming that the concrete line there is the edge of your -- MR. KEENE: Lanai. COMMISSIONER CONSTANTINE: -- lanai? MR. KEENE: Yes. COMMISSIONER CONSTANTINE: So it looks like you're looking over the side of your lanai as opposed to the back of your lanai there. MR. KEENE: This picture would be in our kitchen area where we have the table that we'd be sitting at looking out. COMMISSIONER CONSTANTINE: Is that correct, that line there, that edge of the lanai, is the side of the lanai? MR. KEENE: That line that you see is the edge of the lanai, yes. COMMISSIONER CONSTANTINE: The side, though? MR. KEENE: The side of the lanai, correct. COMMISSIONER CONSTANTINE: If you were to look off the back instead of the side, what would you see? If that -- there's something, some structure right there in the middle, and then there's a large pillar to the left of that photograph. If I were to look to the left of that pillar, what would I see? MR. KEENE: There's -- bay view. COMMISSIONER CONSTANTINE: And how wide is that bay view? MR. KEENE: I don't know. It's a -- COMMISSIONER CONSTANTINE: Peripherally, pretty much you see bay out there? MR. KEENE: It's a bay view, correct. And that is the view that you see from the family room on the far right. If you turn the photos and look at the view from across the bay, you'll see where the pilings are. And they reach to the window that -- the window that we have the best view is the family room window, and that looks down the bay. And that's our open view. But from any other window in the house, you just look and you just see the boathouse. Or you'd see a boathouse roof, if there was a boathouse roof there. COMMISSIONER CONSTANTINE: It just looks -- I'm looking at the site map that was in our packet. But if you look straight out, as opposed to off the side, you've got a non-obstructed view that goes -- I don't know how far that is, but it appears to be -- COMMISSIONER HANCOCK: Gulf Shore Boulevard. COMMISSIONER CONSTANTINE: -- half mile or more of water. Yeah, down to where Gulf Shore is, the back side of Gulf Shore. COMMISSIONER HANCOCK: I think the problem is your house was designed to take advantage of a northwest view, which crossed the property line, as opposed to designed to take advantage of a direct west view, which would not cross anybody's property line. And that's probably why we're here today, more than any other reason. COMMISSIONER CONSTANTINE: I guess where I was going -- but where I was going to go with that is even if as you look off the side of your lanai -- and I don't know how much of an obstruction that is, and it's a little bit hard to tell from these -- I don't know how much of an obstruction, if your feet are -- if that's only a foot or two above where your feet are. But even so, if you look at out the back, it appears here -- and you don't have a picture looking straight out the back, but it appears you're going to have a pretty impressive view anyway. MR. KEENE: No, I did not take a picture showing the open water, because that's not why I'm here. I'm here to show you what the view is from my master bedroom, I'm here to show you what the view is from my living room, and I'm showing you what the view is when I'm sitting at my table in the kitchen. But I'm not disputing that I have a view. But the photos I think explain themselves. I could have gotten in the yard and taken some terrible looking photos. You know, looking down the way that you're talking about, they would have been horrible. I didn't do that, because what I understood was they were talking about building the boathouse one foot higher than my lanai or living area. And by taking photos in this area, or in this position, it shows that really, I'm not looking up the water, I'm looking down the boathouse. Whether the roof is one foot higher or one foot lower is not going to make any difference as far as my view is concerned. COHMISSIONER NORRIS: We have another speaker. CHAIRPERSON BERRY: We have another speaker? MR. FERNANDEZ: You have another speaker, Madam Chair. CHAIRPERSON BERRY: Okay. MR. FERNANDEZ: Miles Scofield. CHAIRPERSON BERRY: Okay, Ms. Student, let's hear from you first. MS. STUDENT: Thank you, Madam Chairman. For the record, Harjorie Student, assistant county attorney. I just need to remind the board that this is an appeal and as such you're limited to the evidence that the Planning Commission had before it in determining whether or not there was competent and substantial evidence to support their decision, and also, whether their decision is consistent with the Land Development Code, those portions that the Planning Commission had for its consideration in making this determination. Thank you. COHMISSIONER HANCOCK: And the failure of Mr. Willett's (sic) representative to show up in effect does not allow us to take the information he just provided us and consider it as new evidence. Is that what I'm hearing you say? MS. STUDENT: I believe that a letter was submitted, and it would seem that any photographs or any other documentary evidence could have been submitted with the letter. COHMISSIONER HANCOCK: Okay, but since it wasn't, it cannot be used as a basis for consideration of today's action? MS. STUDENT: That's correct, because it's an appeal and not a trial de novo. COHMISSIONER HANCOCK: Do you understand that, Mr. Willett? MR. KEENE: Wendell. COHMISSIONER HANCOCK: I'm sorry. MR. KEENE: Wendell Keene. COHMISSIONER HANCOCK: Oh, Keene. I'm sorry, I don't know where I got Willett from. CHAIRPERSON BERRY: He lives on -- MR. KEENE: Willett Avenue. CHAIRPERSON BERRY: -- Willett. That's all right. COHMISSIONER HANCOCK: I thought they named a street after you. I don't know. Do you understand what was just said? MR. KEENE: Yes, I do. COHMISSIONER HANCOCK: That's unfortunate. I wish the individual you had hired or asked to show up had done so and submitted information. We can't even use these pictures as consideration forour decision today. If so, we'd be violating our own ordinance. MR. KEENE: Well, would you like to refer to my letter? I guess that's the only thing left. The letter that was dated on July 29th? MR. REISCHL: That should be in your agenda packet. COHMISSIONER NORRIS: We have that. MR. KEENE: That was what they had to consider on the day I was there -- or that I wasn't there. And that's the only thing that was present. However, there was the objection raised at that time. COHMISSIONER NORRIS: Mr. Scofield, are you waiving your speaking time or -- CHAIRPERSON BERRY: Is there anything more we can hear? COHMISSIONER NORRIS: Not unless it was heard at the Planning Commission is what Ms. Student told us. CHAIRPERSON BERRY: Right. MR. SCOFIELD: I'm relying on the decision made at the Planning Commission. CHAIRPERSON BERRY: Okay. MR. KEENE: I guess the only thing I would say is that what the Planning Commission heard was that the boathouse roof would only be one foot higher than our living area, so that it would not obstruct our view. This is what the Planning Commission heard. So I believe you need to take that into account, because if you think about it without looking at the pictures, which you're not allowed to look at, to make a determination, it's very evident that if you're up in the air eight and a half feet, that even if the roof line is one foot higher -- and this is my understanding -- is why they allowed it was because it was only going to be one foot higher than my living area. It stands to reason that if you're looking down at the water, it's still going to be a hindrance. COHMISSIONER NORRIS: Yeah, Mr. Keene, I think we understand your point. CHAIRPERSON BERRY: Okay, do we have any other public speakers? MR. FERNANDEZ: Just Mr. Scofield. CHAIRPERSON BERRY: No, okay, he's going to sit this one out, I think. I'll close the hearing on this -- well, it's not really a hearing, I guess. Is it? Okay. MR. FERNANDEZ: Yeah, it is. COHMISSIONER HANCOCK: Madam Chair, we've certainly seen more egregious intrusions in the past in this area with boathouses. The fact that the only information being presented today for our consideration if that the roof is going to be one foot higher than the base elevation of the house unfortunately is not compelling enough for me to overturn the CCPC decision. I'm therefore going to move denial of the appeal. COHMISSIONER NORRIS: Second. CHAIRPERSON BERRY: We have a motion and a second for denial of this particular petition. All in favor? Opposed? (No response.) CHAIRPERSON BERRY: Motion carries four-zero. MR. KEENE: Thank you for your time. CHAIRPERSON BERRY: Thank you. That brings us to the end of our hearings today. Mr. Fernandez, do you have anything to -- MR. FERNANDEZ: I have nothing, Madam Chair. Item #14 COUNTY ATTORNEY WEIGEL REGARDING REPORT ON THE LANDFILL CHAIRPERSON BERRY: Hr. Weigel. HR. WEIGEL: I do, thank you. And Hr. Fernandez is handing out to you some correspondence which is relevant to the county's project toward the acquisition of site L, the proposed landfill up in citrus land. And what you'll see there -- and I've got a couple of tabbed pages of correspondence -- is that pursuant to statute the county or anyone, actually, has the ability to send mappets and surveyors onto property to do mapping and surveying work, which in this case is part and parcel to us going forward with the project of doing all the things necessary to come back to you, the board, concerning a report and a resolution toward the acquisition of the property by gift purchase or a condemnation. We've been thwarted -- the county has been thwarted on several occasions from this statutory ability to go on the premises, and I have provided there some of the correspondence from the attorney for the landowners, Ms. Kathleen Passidomo responding. We -- in August 17th Wilkison and Associates, pursuant to county direction, presented themselves on the premises, notwithstanding that we'd been told that would be barred, and there was a physical bar of them going on the premises for the statutory job they wanted to do. So at this point I just wanted you to be aware that barring some board directive not to, I -- pursuant to the previous direction we've had to make this project go forward at all, I would like to take all appropriate legal remedies to get access to the property so that we can come back to the board a little bit later on with a resolution. COHMISSIONER CONSTANTINE: And that's consistent with what the majority of the board gave for direction. MR. WEIGEL: I beg your pardon? COHMISSIONER CONSTANTINE: That's consistent -- what you're asking, or what -- MR. WEIGEL: Yes -- COHMISSIONER CONSTANTINE: -- you're suggesting is -- MR. WEIGEL: -- that's correct. COHMISSIONER CONSTANTINE: -- is consistent with what the board gave for direction several months ago. MR. WEIGEL: It is. And if we just continue in this delay mode at this point -- we've got very fine outside counsel that's been working with us, you know, prodigiously; gets into great inefficiency in regard to some kind of timely prosecution of this project. And this is all preliminary to any litigation. We haven't gotten near that part yet. CHAIRPERSON BERRY: Okay. Is there any action that you'reexpecting from us? MR. WEIGEL: Well, unless you tell me not to, I would consider this an endorsement that I continue with our job to seek opportunity to get on and take care of the statutory responsibility that legally we have to go forward with the project so we can come back to you in a more formal manner in a regular part of the agenda. COHMISSIONER HANCOCK: Madam Chair, I propose consensus direction to the county attorney to accomplish that. All we need is a majority. COHMISSIONER NORRIS: Agreed. COHMISSIONER CONSTANTINE: Agreed. MR. WEIGEL: Thank you very much. CHAIRPERSON BERRY: Well, I never agreed to it in the first place, so -- COHMISSIONER NORRIS: So we've got three agrees and one not agreed. CHAIRPERSON BERRY: We have three agrees and one not agreed. COHMISSIONER CONSTANTINE: And that's consensus -- COHMISSIONER HANCOCK: That will be consensus production. CHAIRPERSON BERRY: We're being consistent here. COHMISSIONER HANCOCK: Consensual. CHAIRPERSON BERRY: We're being consensual, but that was the way the original vote was taken. MR. WEIGEL: Conceivably I could have gone forward that way, but if this does require actual litigation to get on the premises, I always want at least board information, as well as authorization, before we file a lawsuit on behalf of the county. CHAIRPERSON BERRY: Okay. MR. WEIGEL: Thank you. CHAIRPERSON BERRY: Commissioner Norris, do you have any -- COHMISSIONER NORRIS: Nothing further. CHAIRPERSON BERRY: Commissioner Constantine? COHMISSIONER CONSTANTINE: Absolutely not. CHAIRPERSON BERRY: Commissioner Hancock? COHMISSIONER HANCOCK: I can honestly say with definitive clarity that I have nothing further -- CHAIRPERSON BERRY: Nothing further. COHMISSIONER HANCOCK: -- from this point forward. CHAIRPERSON BERRY: And if there's nothing else to come before this body, we stand adjourned. ***** Commissioner Norris moved, seconded by Commissioner Hancock, and carried 4/0 (Commissioner Constantine out), that the following items under the Consent and Summary Agendas be approved and/or adopted; Summary Agenda Item #17B adopted 4/0 (Commissioner Hancock abstained):***** Item #16A1 - Deleted Item #16A2 SATISFACATION OF LIEN FOR PUBLIC NUISANCE RESOLUTION 98-254, J.P. FOX, LOT 32 PINE VIEW VILLAS, BLOCK A, SECTION 13, TOWNSHIP 50 SOUTH, RANGE 25 EAST Item #16A3 RESOLUTION 98-443 THROUGH 98-447 PROVIDING FOR ASSESSHENT OF LIEN RE CODE ENFORCEMENT CASE NOS. 80605-027/CLAUDE E LARUE; 80608-063/BORIS & EHOGENE PUKAY; 80610-059/THALES DELORENZI & PATRICIA CAMPELO; 80708-124/PHILLIP PIERRE; & 80709-064/EDWARD J & LAVERDA L PELC Item #16A4 RESOLUTION 98-448 THROUGH 98-450 PROVIDING FOR ASSESSHENT OF LIEN RE CODE ENFORCEMENT CASE NOS. 80413-06/; VALENTIN & HIGDALIA GONZALEZ, 80413-064/ SHANG HEI HUANG, 80413-065/ JOHN PAGLIARO TR Item #16A5 RESOLUTION 98-451 THROUGH 98-453 PROVIDING FOR ASSESSHENT OF LIEN RE CODE ENFORCHENT CASE NOS. 60522-087/GARY L & NANCY C SEWARD; 80514-028/LLOYD G SHEEHAN; 80622-009/CONNIE SIMON & HARIO PIKUL Item #16A6 RESOLUTION 98-454 THROUGH 98-458 PROVIDING FOR ASSESSHENT OF LIEN RE CODE ENFORCEMENT CASE NOS. 80222-019/RALPH & GRACIELA TERRY; 80226-050/JA_MES R COLOSIHO TR C/O NAPLES REALTY SERVICES INC.; 80302-052 IVAN HAGANA; 80316-040/RODNEY BUSHNELL; 80323-161 ESTEBAN TAivLAYO Item #16B1 WORK ORDER CDH-FT-98-12 FOR RELATED ENGINEERING AND ORGANIZATIONAL SERVICES RELATED TO OPTIHIZATION OF OPERATION AND MAINTENANCE PRACTICES AT THE NORTH AND SOUTH COUNTY REGIONAL WASTEWATER TREATMENT PLANTS FOR $85,100.00 Item #1682 ROAD IHPACT FEE FOR THE FORMER CHAMBER OF COHMERCE BUILDING ON U.S. 41 IN THE CITY OF NAPLES IN THE A_MOUNT OF $2,802.74 Item #1683 - DELETED Item #1684 BID #98-2872 AND BID #98-2873 AWARED TO WALLACE INTERNATIONAL TRUCK, INC. FOR THE PURCHASE OF THREE CREW CAB FLATBED DUMP TRUCKS AND THREE, FIVE CUBIC YARD DUMP TRUCKS IN THE AMOUNT OF $243,198.00 Item #1685 DEVELOPER CONTRIBUTION AGREEHENT WITH OCEAN BOULEVARD PARNTERSHIP AND OCEAN BOULEVARD PARTNERSHIP II FOR THE CONTRIBUTION OF LAND TO FLORIDA DEPARTMENT OF TRANSPORTATION FOR RIGHT-OF-WAY BY WIDENING OF U.S. 41 LOCATED AT THE VICINITY OF GULF PARK DRIVE NORTH TO OLD U.S. 41 (C.R.887) Item #1686 DEVELOPER CONTRIBUTION AGREEHENT WITH COLLIER DEVELOPHENT CORPORATION FOR THE CONTRIBUTION OF LAND TO THE FLORIDA DEPARTMENT OF TRANSPORTATION FOR A WATER NLA/~AGEHENT DETENTION AREA WIDENING OF U.S. 41 LOCATED AT THE VICINITY OF GULF PARK DRIVE NORTH TO OLD U.S. 41 Item #1687 DEVELOPER CONTRIBUTION AGREEHENT WITH OCEAN BOULEVARD PARTNERSHIP SOUTH, LTD FOR THE CONTRIBUTION OF LAND TO THE FLORIDA DEPARTMENT OF TRANSPORTATION FOR RIGHT-OF-WAY AND DRAINAGE FOR THE WIDENING OF U.S. 41 LOCATED AT THE VICINITY OF GULF PARK DRIVE NORTH TO OLD U.S. 41 Item #16C1 CONSESSION AGREEHENT A_MENDHENT BETWEEN THE ASSOCIATION OF UNIT OWNERS OF THE REGISTRY HOTEL AT PELICAN BAY, INC. AND COLLIER COUNTY TO PROVIDE AN EXPANSION OF THE DECK AND IMPROVE THE KITCHEN FACILITIES AT THE CLAM PASS BEACH PARK Item #16D1 - DELETED Item #16D2 BUDGET AMENDMENT TO COMPLETE THE (PC) MODERNIZATION PROJECT Item #16D3 BUDGET AMENDHENT EXPENDITURES RELATING TO A WATER BREAK IN THE VICINITY OUTSIDE OF THE HUMAN RESOURCES DEPARTMENT Item #16El BUDGET AMENDHENTS 99-025 AND 99-030 Item #G1 HISCELLANEOUS CORRESPONDENCE - FILED AND/OR REFFERED The following miscellaneous correspondence as presented to the Board of County Commissioners has been directed to the various departments as indicated: Item #17A RESOLUTION 98-459, RE PETITION V-98-14, HARK & ANN HUNTER, REQUESTING AN AFTER-THE-FACT VARIANCE OF 6.9 FEET FROM THE REQUIRED SIDE YARD SETBACK OF 30 FEET TO 23.1 FEET FOR PROPERTY LOCATED AT 2121 OAKES BOULEVARD, FURTHER DESCRIBED AS THE SOUTH HALF OF TRACT 13, GOLDEN GATE ESTATES UNIT 97, IN SECTION 29, TOWNSHIP 49 SOUTH, RANGE 26 EAST, COLLIER COUNTY, FLORIDA Item #17B ORDINANCE 98-89 , RE PETITION PUD-98-10, HR. ROBERT DUANE, AICP, OF HOLE, HONTES AND ASSOCIATES, INC. REPRESENTING JIM COLOSIHO, TRUSTEE, REQUESTING A REZONE FROM "E" ESTATES TO "PUD" PLANNED UNIT DEVELOPMENT TO BE KNOWN AS CAMBRIDGE SQUARE PUD FOR PROPERTY LOCATED ON THE NORTH SIDE OF PINE RIDGE (C.R. 896), APPROXIMATELY 300 FEET EAST OF LIVINGSTON ROAD IN SECTION 7, TOWNSHIP 49 SOUTH, RANGE 26 EAST, COLLIER COUNTY, FLORIDA Item #17C RESOLUTION 98-460, RE PETITION V-98-15, R. BRUCE ANDERSON, REPRESENTING RONALD L. GLASS, PRESIDENT OF RSG FAMILY LIMITED PARTNERSHIP-IHMOKALEE, REQUESTING A 30 FOOT AFTER-THE-FACT VARIANCE FROM THE REQURED 30 FOOT FRONT YARD TO 0 FEET ALONG THE NORTHERN FRON YARD, AN 11 FOOT AFTER-THE-FACT VARIANCE FROM THE REQUIRED 30 FOOT FRONT YARD TO 19 FEET ALONG THE EASTERN FRONT YARD AND A 10 FOOT AFTER-THE-FACT VARIANCE FROM THE REQURIED 30 FOOT FRONT YARD TO 20 FEET ALONG THE SOUTHERN FRONT YARD OF AN EXISTING APARTMENT COMPLEX IN IHMOKALEE Item #17D RESOLUTION 98-461, RE PETITION VAC-98-019 TO DISCLAIH, RENOUNCE AND VACATED THE PUBLIC'S INTEREST IN A 5.5' BY 45' PORTION OF RIGHT OF WAY ON DELAWARE AVENUE, LOCATED IN SECTION 4, TOWNSHIP 47 SOUTH, RANGE 29 EAST, IHMOKALEE, FLORIDA Item #17E - Withdrawn Item #17F RESOLUTION 98-462, RE PETITION AV-98-016 TO VACATE A 12' WIDE DRAINAGE EASEMENT BETWEEN LOTS 31 AND 32, BLOCK B, ACCORDING TO THE PLAT OF "COLLIER'S RESERVE", AS RECORDED IN PLAT BOOK 20, PAGES 59 THROUGH 87, PUBLIC RECORDS OF COLLIER COUNTY, FLORIDA AND TO ACCEPT A 12' WIDE DRAINAGE EASEMENT AS A REPLACEMENT EASEMENT There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 4:45 p.m. BOARD OF COUNTY COHMISSIONERS BOARD OF ZONING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL DISTRICTS UNDER ITS CONTROL BARBARA B. BERRY, CHAIRPERSON ATTEST: DWIGHT E. BROCK, CLERK These minutes approved by the Board on as presented or as corrected TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC., BY CHERIE' R. LEONE, NOTARY PUBLIC