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CCPC Minutes 03/01/2012 R & EARMINUTES & RECORDS, TERESA POLASKI AGENDA COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 9:00 A.M., THURSDAY, MARCH 1, 2012, IN THE BOARD OF COUNTY COMMISSIONERS MEETING ROOM, ADMINISTRATION BUILDING, COUNTY GOVERNMENT CENTER, THIRD FLOOR, 3299 TAMIAMI TRAIL EAST, NAPLES, FLORIDA: NOTE: INDIVIDUAL SPEAKERS WILL BE LIMITED TO 5 MINUTES ON ANY ITEM. INDIVIDUALS SELECTED TO SPEAK ON BEHALF OF AN ORGANIZATION OR GROUP ARE ENCOURAGED AND MAY BE ALLOTTED 10 MINUTES TO SPEAK ON AN ITEM IF SO RECOGNIZED BY THE CHAIRMAN. PERSONS WISHING TO HAVE WRITTEN OR GRAPHIC MATERIALS INCLUDED IN THE CCPC AGENDA PACKETS MUST SUBMIT SAID MATERIAL A MINIMUM OF 10 DAYS PRIOR TO THE RESPECTIVE PUBLIC HEARING. IN ANY CASE, WRITTEN MATERIALS INTENDED TO BE CONSIDERED BY THE CCPC SHALL BE SUBMITTED TO THE APPROPRIATE COUNTY STAFF A MINIMUM OF SEVEN DAYS PRIOR TO THE PUBLIC HEARING. ALL MATERIAL USED IN PRESENTATIONS BEFORE THE CCPC WILL BECOME A PERMANENT PART OF THE RECORD AND WILL BE AVAILABLE FOR PRESENTATION TO THE BOARD OF COUNTY COMMISSIONERS IF APPLICABLE. ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THE CCPC WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. 1. PLEDGE OF ALLEGIANCE 2. ROLL CALL BY SECRETARY 3. ADDENDA TO THE AGENDA 4. PLANNING COMMISSION ABSENCES 5. APPROVAL OF MINUTES 6. BCC REPORT- RECAPS 7. CHAIRMAN'S REPORT 8. ADVERTISED PUBLIC HEARINGS A. Note: This item has been continued from the February 16, 2012 CCPC meeting per the applicant: PDI- PL2012 -159, The Dunes PUD, a Resolution of the Collier County Planning Commission relating to Petition Number PDI- PL2012 -159 for insubstantial changes to the Dunes Planned Unit Development Master Plan for the purpose of depicting the area for construction of a 49 slip boat dock facility in the manmade portion of the waterway labeled "Conservation Easement /Waterway" for property located at 11495 Vanderbilt Drive in Section 20, Township 48 South, Range 25 East, Collier County, Florida. (Companion item to BDE- PL2010 -979) [Coordinator: Nancy Gundlach, AICP, RLA, Principal Planner] B. Note: This item has been continued from the February 16, 2012 CCPC meeting per the applicant: BDE- PL2010 -979' Vanderbilt Partners II, LTD, represented by Timothy Hall of Turrell, Hall & Associates, Inc., is proposing a 261 -foot boat dock extension to allow a new docking facility to protrude approximately 281 feet from the Mean High Water line. The new boat docking facility is approximately 11,300 square feet of over water structure and consists of 49 boat slips. The subject property is located in the Dunes Planned Unit Development at 11495 Vanderbilt Drive, Section 20, Township 48 South, Range 25 East, Collier County, Florida. (Companion item to PDI - PL2012 -159) [Coordinator: Nancy Gundlach, Principal Planner, RLA, AICP] C. VA- PL2010 -2285: Lot 80 Plantation Island - a Resolution of the Board of Zoning Appeals of Collier County, Florida relating to Petition Number VA- PL2010 -2285, granting a variance from subsection 4.02.14.C.4 of the Land Development Code (mangrove trees), on property hereinafter described in Section 24, Township 53 South, Range 29 East, Collier County, Florida. [Coordinator: Nancy Gundlach, AICP, RLA, Principal Planner] D. RZ-PL20110001572: SSP Associates, Inc. -- An Ordinance of the Board of County Commissioners of Collier County, Florida amending Ordinance No. 2004 -41, as amended, the Collier County Land Development Code, which established the comprehensive zoning regulations for the unincorporated area of Collier County, Florida by amending the appropriate zoning atlas map or maps by changing the zoning classification of the herein described real property from a C -3 zoning district to a C -5 zoning district for the project known as SSP Associates, Inc. Rezone located south of Tamiami Trail East in Section 32, Township 50 South, Range 26 East, Collier County, Florida, consisting of 1.75 +/- acres subject to conditions; and by providing an effective date. [Coordinator: Kay Deselem, AICP, Principal Planner] E. CPSS- 2011 -1: A petition requesting a small scale Growth Management Plan amendment to the "Orange Blossom/Airport Crossroads Commercial Subdistrict ", to remove paragraph b., relating to transportation intersection improvements, and to remove related paragraph c.v., for property located at the southwest corner of the intersection of Airport Road and Orange Blossom Drive, in Section 2, Township 49 South, Range 25 East (f 10 acres). [Coordinator: Corby Schmidt, AICP, Principal Planner.] ADOPTION HEARINGS. Note: This item has been continued from the January 26, 2012 and February 16, 2012 CCPC meetings per CCPC. This item will be heard as an Advertised Public hearing then under Consent: A Resolution of the Board of County Commissioners proposing 2011 Evaluation and Appraisal Report (EAR) Based Amendments to the Collier County Growth Management Plan, Ordinance 89 -05, as amended, specifically amending the Capital Improvement Element, Transportation Element, Sanitary Sewer Sub - Element, Potable Water Sub - Element, Drainage Sub - Element, Solid Waste Sub - Element, and Natural Groundwater Aquifer Recharge Sub - Element of the Public Facilities Element, Housing Element, Recreation & Open Space Element, Conservation and Coastal Management Element, Intergovernmental Coordination Element, Future Land Use Element and Future Land Use Map and Map Series, Golden Gate Area Master Plan Element, Economic Element, and Public Schools Facilities Element, and furthermore recommending Transmittal of these amendments to the Florida Department of Economic Opportunity. [Coordinator: Corby Schmidt, AICP, Principal Planner] Note: This item is being continued to the March 15, 2012 CCPC meeting: G. VA- PL2011 -1410: Wahl Variance - A Resolution of the Board of Zoning Appeals of Collier County, Florida, relating to Petition Number VA- PL20110001410, for a variance from Land Development Code Section 5.03.06.E.5 to permit a reduced side yard (riparian) setback from 15 feet to 9.3 feet on the eastern boundary of the property located at 8 Pelican Street West, Isles of Capri in Section 5, Township 52 South, Range 26 East in Collier County, Florida. [Coordinator: Nancy Gundlach, AICP, RLA, Principal Planner] Note: This item is being continued to the March 15, 2012 CCPC meeting: H. BDE- PL20110001409: A Resolution of the Collier County Planning Commission relating to Petition Number BDE- PL20110001409 for a 34.6 foot boat dock extension over the maximum 20 foot limit provided in Section 5.03.06 of the Collier County Land Development Code to allow for a 54.6 foot boat dock facility in an RSF -4 zone on property hereinafter described in Collier County, Florida. [Coordinator: Michael Sawyer, Project Manager] 9. CONSENT AGENDA ITEMS A. A Resolution of the Board of County Commissioners proposing 2011 Evaluation and Appraisal Report (EAR) Based Amendments to the Collier County Growth Management Plan, Ordinance 89 -05, as amended, specifically amending the Capital Improvement Element, Transportation Element, Sanitary Sewer Sub - Element, Potable Water Sub - Element, Drainage Sub - Element, Solid Waste Sub - Element, and Natural Groundwater Aquifer Recharge Sub - Element of the Public Facilities Element, Housing Element, Recreation & Open Space Element, Conservation and Coastal Management Element, Intergovernmental Coordination Element, Future Land Use Element and Future Land Use Map and Map Series, Golden Gate Area Master Plan Element, Economic Element, and Public Schools Facilities Element, and furthermore recommending Transmittal of these amendments to the Florida Department of Economic Opportunity. [Coordinator: Corby Schmidt, AICP, Principal Planner] 10. OLD BUSINESS 11. NEW BUSINESS 12. PUBLIC COMMENT ITEM 13. DISCUSSION OF ADDENDA 14. ADJOURN CCPC Agenda/Ray Bellows /jmp March 1, 2012 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida, March 1, 2012 LET IT BE REMEMBERED, that the Collier County Planning Commission, in and for the County of Collier, having conducted business herein, met on this date at 9:00 a.m., in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: ALSO PRESENT: Bill Lorenz, Comprehensive Planning Raymond V. Bellows, Zoning Manager Heidi Ashton - Cicko, County Attorney's Office Tom Eastman, School Board Representative Page 1 of 94 CHAIRMAN: Mark P. Strain William Vonier Brad Schiffer Paul Midney Melissa Ahern Karen Homiak Diane Ebert Barry Klein Phillip Brougham March 1, 2012 CHAIRMAN STRAIN: Good morning, everybody. Whoa, Ray. That's pretty loud. Whoa, that woke me up. I hope you're all awake, too. If you'll all please rise for Pledge of Allegiance. (The Pledge of Allegiance was recited in unison.) CHAIRMAN STRAIN: Okay. Welcome, everyone, to the Collier County Planning Commission meeting, Thursday, March 1 st. And I've still got something wrong. COMMISSIONER KLEIN: Welcome back. CHAIRMAN STRAIN: Thank you. I hope you -all missed me. I see you saved some fun for today for me from the last meeting. Let's do the roll call by the secretary, please. COMMISSIONER HOMIAK: Mr. Eastman? MR. EASTMAN: Here. COMMISSIONER HOMIAK: Mr. Vonier? COMMISSIONER VONIER: Here. COMMISSIONER HOMIAK: Mr. Schiffer? COMMISSIONER SCHIFFER: I'm here. COMMISSIONER HOMIAK: Mr. Midney? COMMISSIONER MIDNEY: Here. COMMISSIONER HOMIAK: Ms. Ahern? COMMISSIONER AHERN: Here. COMMISSIONER HOMIAK: Mr. Strain? CHAIRMAN STRAIN: Here. COMMISSIONER HOMIAK: Ms. Homiak is here. Ms. Ebert? COMMISSIONER EBERT: Here. COMMISSIONER HOMIAK: Mr. Klein? COMMISSIONER KLEIN: Here. COMMISSIONER HOMIAK: And, Mr. Brougham? COMMISSIONER BROUGHAM: Present. CHAIRMAN STRAIN: Okay, thank you. Addenda to the agenda. A couple of announcements. We may not finish with the agenda today. The first two items up are the issues involving the Dunes. After that we have some other items that are on today's agenda. If we don't get to them and the -- and, you know, we've got a quantity of them left, we're going to continue either to the 6th or to the 15th. So we'll have to see how the day goes before we know which day we're going to come back on. I do know -- think that most of you are here for the Dunes. We should finish that up today. And I will do everything possible to get to the Plantation Island item today before we finish. I understand there's a gentleman here who flew in for that item, and I want to try to accommodate that as much as we can. So those are the two things for sure we'll get to today, and then we'll see where the continuance goes. Planning Commission absences, we have a -- if we go into continuance till March 6th, just so I know, is everybody available? Phil, you're not. COMMISSIONER BROUGHAM: I will not be. COMMISSIONER SCHIFFER: I won't be. COMMISSIONER AHERN: I won't be. CHAIRMAN STRAIN: Okay. So three aren't. That leaves us -- we still have a quorum, so we're still good. We have six; four aren't. That's running pretty close. So let's see. Phil, you can't be. Barry, you can for sure be here. Diane? COMMISSIONER EBERT: Yes. CHAIRMAN STRAIN: Okay. Karen? COMMISSIONER HOMIAK: Yes. CHAIRMAN STRAIN: And I can be. And Bill. Page 2 of 94 March 1, 2012 COMMISSIONER VONIER: Yeah. CHAIRMAN STRAIN: Okay. Then we certainly do have a quorum. So we'll do the best we can to see what happens. On the 15th, how is everybody for that? COMMISSIONER BROUGHAM: Good. CHAIRMAN STRAIN: We're okay? Okay. Also we have a request to review the first phase -- the first stage of the second phase of the Master Mobility Plan. And they're looking at a workshop, which is not where we take votes. It's a little more informal. It will be in this room. And April 12th is one of the dates that's open. So if you -all could look at your calendars and let me know how that works for you, or you know ahead. It would be from nine to noon. It would be a morning meeting, and we don't know if we need all three hours, but -- depends on how much we have at that time. Okay. Does anybody know if they can't make it? Let's put it this way: If you find out you can't make it between now and some of the meetings leading up to that date, just let us know and we'll see if we have to rearrange it because of a quorum. Okay. Approval of minutes. I don't believe there were any with this submittal. BCC recaps. Ray? MR. BELLOWS: Last Tuesday, on February 28th, the Board of County Commissioners entertained a request by the applicant to have the Sabal Bay amendment continued to the next Board of County Commissioners meeting, and that was approved. I think the applicant wanted to respond to the questions raised by some of the commissioners. CHAIRMAN STRAIN: Okay. Thank you. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER SCHIFFER: I have a blinking light bulb here. So, I guess, K.D., if you're listening, could you have somebody from maintenance take the bulb out? It stopped. Oh, there it goes. CHAIRMAN STRAIN: Now it's on. So doesn't that work? COMMISSIONER SCHIFFER: It's going on and off. CHAIRMAN STRAIN: Oh, okay. Brad, you look the type that would like strobe lights, so -- COMMISSIONER SCHIFFER: It's bringing back different memories. CHAIRMAN STRAIN: I wasn't sure. We're going to go right into our public hearings in a minute. Before we do, there's a chairman's report and, basically, all I wanted, to make sure everyone was aware of that when we get into the Dunes, we received a lot of emails, and during disclosure I don't even know how we're going to list them all other than saying we received a lot of them. Staff has got copies of every email that I received, and I believe everyone on this board probably has. This board is limited to reviewing a project or any kind of application to the standards of our code, and some of the emails were in that direction. They talked about the code and things like that, and others were in issues that may not be relevant to this board's ability to weigh in on because it's not directly related to the code. So all I'm asking is that when you come up and speak today and you listen to the course of the meeting, you'll hear a lot of issues about the code, and it's the code that we have to weigh in on, and that's all this board is limited to. So as we get into the discussions and the presentations, we'll try to focus our -- at least on this board's behalf, towards the code - related items. And then Tony Pires had emailed me a couple rather lengthy emails. I'm not sure if he was trying to use up all the ink in my printer or not, but the one I received last night was 31 pages, and the first four pages contained a lot of code - related references that I was going to check out. I printed it four times, and each time this is what I got. So, Tony, I didn't get a chance to thoroughly check out your concerns. I don't know why this -- I checked and did a regular print, and everything else worked, but your one email came out black each time, and I'm not sure why. So I may have to ask you to walk through some of that today so I understand where you're coming from. And I'm sure Richard, if he had gotten a copy, maybe he'll be addressing that as well. With that in mind, let's move into the first advertised public hearing. And, actually, we'll do both of them Page 3 of 94 March 1, 2012 simultaneously and vote on them separately at the end of the discussion and public testimony. I'll read them off together, and the presentations will follow concurrently. ** *The first one is PDI- PL2012 -159, the Dunes PUD. And this is the one involving whether it's an insubstantial, substantial, and the graphic on the PUD showing that there's a dock in place on the waterway. The second one would be the boat -dock extension. It's BDE- PL2010 -979, the Vanderbilt Partners Limited, lI, or II Limited. And that is for the actual dock extension, the part of the dock that goes out past the allowable 20 feet, which I believe is quite a bit in this case, so -- quite a bit of area in this case. So those two are the items that we're going to be discussing first. All those wishing to testify on behalf of either of those items, if you're going to want to speak today, if for any reason you're going to be here as a witness in any manner whatever, you're going to be talking, please rise to be sworn in by one of the court reporters. (The speakers were duly sworn and indicated in the affirmative.) CHAIRMAN STRAIN: Our intention today is not to omit anybody from speaking. We have speaker sign -up slips that we use, but we still -- I will generally ask, from the audience, when we're done with the registered speakers, if there's anybody who would still like to speak. And when you get up to speak, it's important that you try to focus on the topic. We ask that you try to summarize in five minutes; however, that's flexible. We've never really cut anybody off. We've asked a couple people to, you know, change it a little bit because they're redundant or they've been off into issues that aren't relative to the application. But just kind of please keep that in mind when you speak. Now, for disclosures, let's go to the Planning Commission. Phil, we'll start at your end. Any disclosures on your part? COMMISSIONER BROUGHAM: Yes. I met with residents of the Surf Colony as well as Vanderbilt Beach Residents Association, I had a brief meeting with Mr. Pires, and I had a meeting with our staff, and I received probably 100 emails. CHAIRMAN STRAIN: Okay. Barry? COMMISSIONER KLEIN: Yeah. I also dealt with Susan Snyder, who is representing the same people. UNIDENTIFIED SPEAKER: Can you speak up, please. CHAIRMAN STRAIN: You need to pull the mike up, Barry. Thank you. COMMISSIONER KLEIN: Sorry about that. On February 21 st I met with Susan Snyder in representing and having other people talk to me about the docks, and I've had several conversations with Nicole Johnson from the Conservancy. That's about it. CHAIRMAN STRAIN: Okay. Diane? COMMISSIONER EBERT: Yes. I have had meetings with the Vanderbilt Beach Association, site visit, I have had a meeting with Nicole Johnson, with staff, tons of emails. CHAIRMAN STRAIN: Okay. Karen? COMMISSIONER HOMIAK: I just had well over 50 emails, and I read them all, and I didn't speak to Nicole Johnson other than messages, phone messages back and forth. CHAIRMAN STRAIN: And for myself, let's see. I start -- I met with Mr. Yovanovich and the people that redesigned the docked; Tunell and their company as well as their planner; county staff, of course; Bruce Burkhard; Donna Caron; I've talked with Tony Pires on the phone, I think we may have said something in passing one day; and, of course, Nicole Ryan, Nicole Ryan Johnson on the phone. Emails. Every email I received I forwarded on to Nancy for recordation and distribution. I believe that she either -- forwarded them all on to the Planning Commission members so everybody got the same mix, and I don't even know -- I can't even tell you the quantity. This morning when I came in the Board of County Commissioners, I guess, manager, Ian, had received two large packages for me involving the Dunes. When I opened them up, I found that they were, I don't know if you want to call them petitions but, letters because they're -- I don't know how many -- Nancy, did you happen to count the quantity of letters that were in those two packages? MS. GUNDLACH: I estimate the one I just received this morning -- CHAIRMAN STRAIN: You need -- MS. GUNDLACH: Good morning. For the record, Nancy Gundlach, principal planner, land development services. I received 200 letters of support around 8:30 this morning. Page 4 of 94 March 1, 2012 CHAIRMAN STRAIN: Okay. Those are the letters I received. When I got here this morning, I passed them on to Nancy. I really haven't had time to read them. So I just wanted everybody to know that those came in as well. MS. GUNDLACH: For the record, it was approximately 200. CHAIRMAN STRAIN: Melissa? COMMISSIONER A14ERN: I received probably about 100 emails. CHAIRMAN STRAIN: Paul? COMMISSIONER MIDNEY: Emails. CHAIRMAN STRAIN: Emails? Where's your mike? You might want to grab that closer to you, Paul. Well, you'll need it if you speak. Go ahead, Brad. COMMISSIONER SCHIFFER: I also received the emails, but I did discuss it with Bruce Burkhard, Donna Caron, Nicole Johnson, and Karen Bishop. CHAIRMAN STRAIN: Okay. Bill? COMMISSIONER VONIER: Emails and staff. CHAIRMAN STRAIN: Okay. COMMISSIONER EBERT: I have -- Mark, one other. I did observe the last NIM meeting -- CHAIRMAN STRAIN: Okay. COMMISSIONER EBERT: -- that they had. CHAIRMAN STRAIN: Thank you. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Yes, sir. COMMISSIONER SCHIFFER: I had a question. Is it wise to do these together, or would it be best to separate them? One is a conversation on rights, the other one is a technical conversation on the boat dock itself. CHAIRMAN STRAIN: Well, the problem is, because this is being presented as an insubstantial map change to the PUD, and we have the knowledge of what the docks are like, I thought we could benefit from that knowledge in understanding how they apply to that map change rather than separate them out. I mean, if we vote on one or listen to one independently of the other, I don't know how we're going to keep the facts separate, because in the map change the docks are there. And they'd be -- naturally, the more we would know about them, the better decision we can make on that one. So, Heidi, is there any legal preference? MS. ASHTON- CICKO: They can be discussed together as you proposed, but it's really a matter of your choice. Legally, it can be handled either way. CHAIRMAN STRAIN: Okay. I -- myself, I don't care. We've always done these kind of hearings together, but if someone has a strong objection, I'll certainly be glad to listen to it from the Planning Commission. Brad, is -- COMMISSIONER SCHIFFER: Well, I think the -- I'd like to keep packets separate. For example, take seagrass. Seagrass is something that has to do with the boat dock extension, which really doesn't have to do with the first item. CHAIRMAN STRAIN: Right. COMMISSIONER SCHIFFER: If we're mixing everything together, you know -- UNIDENTIFIED SPEAKER: Can't hear you. COMMISSIONER SCHIFFER: What I said was is -- I'd like to keep them apart. One thing, like, for example, is the seagrass has something to do with the boat dock but it has nothing to do with the first item on the rights. So if you start mixing these together -- you know, I don't want anybody making judgments with elements of one application to the other application. CHAIRMAN STRAIN: Well, I've got -- I mean, I've got no dog in the fight. Doesn't matter to me how we hear them. I want to make sure the process is preserved in the best way possible. Richard, as the attorney representing the applicant, do you have any concerns either way? MR. YOVANOVICH: Well, honestly, if we hear these things separately, you're probably going to hear the same speakers speak twice, because if the NIM that I attended was any indication, there was a -- people had comments on both petitions. Page 5 of 94 March 1, 2012 So we're going to go -- if you want to do them separately, we're going to go through probably the insubstantial change, you'll hear, if the NIM was any indication, several people get up and say we somehow gave up our right to ask for docks, and then we'll go through the boat dock extension petition and actually get into where the docks are located and the environmental analysis that was done to locate the docks there, and you'll probably hear the very same people get up and speak again. I thought, for efficiency of time, we can allow people to comment on both and distinguish the two when it came to the vote. Because you're correct, they're very different criteria to look at, but from a time perspective, you know, you're probably going to double the effort of time, and I don't know that you need to do that to keep the criteria separate. But we'll do it any way the Planning Commission wants to do it but -- CHAIRMAN STRAIN: You have no objection to either procedure? MR. YOVANOVICH: Well, I would prefer that they be heard together for efficiency standpoint, but I'm not going to, you know, say, you know, we're going to pick up and go home if you go a different way. CHAIRMAN STRAIN: No. And I'm trying to make sure that this process is as fair as possible because I expect that any outcome's going to be appealed from either side. So based on that, I want to make sure everybody is a -- understands the -- if there's any objections, I want to know them. Tony Pires, I believe you represent the property owners' association in the area, and as the other attorney who is probably going to be speaking today, do you have any concerns over the process that we just discussed in either direction? MR. PIKES: No -- CHAIRMAN STRAIN: Okay. Thank you. MR. PIKES: -- for the record. CHAIRMAN STRAIN: Okay. With that, I'd rather -- unless this board wants to say otherwise, I'd rather hear them both at the same time. COMMISSIONER BROUGHAM: I agree with you. COMMISSIONER EBERT: I agree. CHAIRMAN STRAIN: And I think we can separate out the facts and make decisions on our own as we vote on each one separately. COMMISSIONER BROUGHAM: I agree. CHAIRMAN STRAIN: Okay. With that, Richard, we'll start out with your presentation. And you'll be presenting on both issues, and then staff will follow after we do some questions. MR. YOVANOVICH: Good morning. For the record, Rich Yovanovich on behalf of the petitioner in both petitions. With me today I have Keith Sharp, representative of the owner; Tim Hall, with Turrell Hall, handling both petitions with me; and Karen Bishop also handing both petitions with me. As the chairman has indicated, you have two separate petitions in front of you. Both of those petitions apply to the project commonly known as the Dunes. On the visualizer you have an aerial. I'll orient you as to where both petitions are. And we will be talking about boat docks located in this general area in the manmade water body, and both petitions address the same boat docks. The first petition is a petition for -- a petition for an insubstantial change to the PUD master plan, and I think we have to go through a little history about how this PUD came into being to understand how we got here. Because I will tell you from the outset, this petition should not be in front of you. We're here under protest on this petition because -- as I go through the history, you'll see why, I believe. The PUD addressed the issue, and the only petition you should be considering is the boat dock extension petition. When the PUD was initially approved in 1998, the boat docks were to be addressed through a separate conditional use process. The PUD was amended in 2000 to bring some additional lands in, increase the density of the project, and to specifically address the process by which we would be obtaining future approvals for boat docks. And in that PUD, it is very clear under Section 3.4.13.2 that boat docks are, in fact, an accessory use to the residential development approved by this PUD. And it specifically says -- and I'll read it for the record -- under Page 6 of 94 March 1, 2012 accessory use, boathouses and docks subject to Section 2.6.21 of the Collier County Land Development Code. And that's on Page 3 -1 of the PUD document, and I do not know if you have that PUD document provided to you by staff or not. CHAIRMAN STRAIN: We have it. MR. YOVANOVICH: You do, okay. So if you go to 3 -1, you will see that specific reference to the process we're to follow to get boat docks. Now, that process -- obviously, this is pre recodification. So the numbers have changed, but the process is the same, and they were referring to the boat dock extension process for the boat docks. Now, I will draw your attention, if you'll go -- near the second to last page of the PUD ordinance should be the PUD master plan, and I'll put it up on the visualizer for the public. And that's the master plan. And the diagonally identified area is the conservation easement/water body. And I would submit to you that the only place boat docks can go is in the water. So when this master plan was adopted as part of the PUD and specifically referenced going through the boat dock extension process, the boats were going to be in the water and we were going to identify the number of boats and the location of the boats through the boat dock extension process. I think that there was no need to be here to amend the PUD master plan to identify where the accessory uses go because you -- I won't say never, but you virtually never identify accessory uses on a PUD master plan. In addition, if you review the minutes of the hearing at which the PUD was approved and that conditions was imposed, that we go through the boat dock extension process and the master plan was adopted, there was extensive discussion regarding the future boat docks because, as I'll point out to you later, under the Manatee Protection Plan, we would qualify for 947 boat docks under the marina criteria for manatees. That was never the intention of this project, but it came up during the PUD discussion as to what's the number of docks you will be seeking, and where will they be located. During the discussion, Mr. Griffin from the owner came up and agreed to cap the maximum docks that they would ask for at 60 and agreed that there would be no docks in Water Turkey Bay. Because that was a shallow area, people did not want boat docks in there. The boat docks were to be in the manmade water body, which is essentially from about here south. And, in fact, that water body is identified on a plat, an older plat, and that older plat dedicated that area to use by the public for the typical uses you would allow in a water body, including docks. So with that backdrop the PUD was approved and we were supposed to go through the process of identifying the number of docks capped at 60 and the actual location of the docks capped in water -- the manmade water body through the PUD process. We got very near to advertising this petition for the Planning Commission hearing in January, and then a discussion came about, somehow these boat docks would be inconsistent with the PUD. I went through my analysis with staff, pointed out the legislative history, pointed out that, in fact, and it's -- Ray, can you zoom in, please, for me? It's still going to be difficult for you to see. But if you look over here, this is the manmade water body. The petitioner owns basically all these lands, which is the Dunes, up to, including the water body. Now, some people will contest whether we own it or not. But as part of the state permitting process, we're quitclaiming that water body to the state. So at least the state believes we have an ownership interest in that property or else they would not be asking us to quitclaim it. But be that as it may, there are docks that have been permitted subsequent to the adoption of the master plan identifying that area as a conservation area/water body. So, clearly, boat docks are not an inconsistent use with that area designated as conservation area/water body, and that any conservation easement that may be dedicated to whomever it's supposed to be dedicated to will be subject to the public's right to use that water -- because boaters are using it all the time right now -- and subject to the public's right to install boat docks in that area through whatever the county process is. So that was my argument. I lost that argument. Staff told me it's their interpretation that I need to do an insubstantial change to the PUD master plan to identify the location of the boat docks on the master plan. We started that process. Initially we were told to take the diagonal lines off. We took the diagonal lines off, and Mr. Pires objected Page 7 of 94 March 1, 2012 saying by taking the diagonal lines off, you are no longer an insubstantial change because that exceeds the five -acre cap, because you're reducing a conservation area by five acres. So we put the diagonal lines right back on and showed the boat docks and added a note that basically did what the board did originally which was identify exactly where the boat docks can go. And it clearly says they can go in the manmade water body and they have to stay out of Water Turkey Bay. So the petition in front of you right now is this insubstantial change to the PUD master plan to identify exactly where the boat docks will be located and to make it clear, if people didn't already know, that boat docks can be in that portion of the conservation area/water body. Now, when I objected, I was told there's a very specific process that I'm entitled to go through if I don't agree with staff, and that's the official interpretation process. And as you all know what the official interpretation process is, I write a letter to staff, I say, do you know what my position is? I get their response back, and then I can appeal that decision to the Board of County Commissioners. That's a very lengthy process. It's an expensive process. But it's a process that, if I wanted to challenge that interpretation, staff is telling me I had to go through -- and that's important because staff, based upon the LDC and the Comp Plan, is the interpreter of those -- both of those documents, and staffs position, and I believe the county attorney's position is, if you disagree with their interpretation, there is a process you follow, and that's the official interpretation process. Keep in mind that's not only binding on me; it's binding on anybody else in this audience who disagrees with staffs interpretation, and it's also binding on the Planning Commission. So you may disagree with what staff says, how they've interpreted the LDC or the Growth Management Plan, but none of us are allowed to change that staff interpretation. We have to live with it unless we go through the formal process to have the Board of County Commissioners ultimately overrule staff. So we've fled our petition, and we're going through this process. And I put the master plan up for you but, you know, I had a -- I had a -- this morning at four when I got back into town and was thinking, what do I do? I got this letter from Tony Pires through staff last night, read it this morning. And I said, what would Tony argue if he were in my position? Well, I know Tony would argue everything I've argued, but Tony is very detailed and he would nit -pick the PUD document, and I mean that as a compliment. He would nit -pick this PUD document. And is there anything else in this PUD document that further supports I'm entitled to these boat docks or to ask for these boat docks? And I reread the document, and I noticed in Section -- sorry, I have to go to my glasses. I noticed in Section 2.10 of the PUDs, which is on Page 2 -5 for the PUD document. And I said, what are the general permitted uses within this project? And I looked down at Item No. 5, and it says, neighborhood parks, recreational facilities, and community centers. And it says I can have those uses anywhere in the PUD other than the preserves. Now, people are confusing some terms here as they're poking at this PUD document. There is a very specific preserve district, and that very specific preserve district is marked with the dots. And you'll see the word "preserve." You will note that the area designated as conservation easement/Water Turkey Bay is not within the preserve area. We are allowed under the PUD document by its very terms, together with what's already in the residential district, but in this language, to ask for the boat docks. They are a recreational facility. They are serving the community of the Dunes. It is one of their recreational amenities for those who have access to the docks. So there's two very specific provisions that allow us to go forward today with our petition for the docks under the PUD itself. It's the very specific provision in the residential district that says boat docks are accessory uses to the residential and this general provision that says I can have them anywhere in the PUD. Because I have heard the argument that if I'm going to have docks, it could only be in those areas designated R. Now, there's no water on the area designated R, so I think the argument is not a supportable argument that I have to now come in and amend the PUD to somehow -- fully amend the PUD to somehow be allowed to have docks in an area that's not designated R. But that's an argument that's out there that we think has no merit. Then I thought, I said, you know, if it really has to be on the property itself, the dock physically has to be on the property itself -- I looked at some plats involving the various communities that front water, and I know the property line usually ends at the seawall, and the water is not on their land. So if you truly have to have the dock on your own land, you probably have every -- you've created a nonconforming use for every dock out there today. It has never been the interpretation that the docks, in order for Page 8 of 94 March 1, 2012 them to be considered an accessory use, that it has to be on the residential lot or the residentially designated portion of the PUD. So we are going forward under protest with the very first petition, which is the amendment to the master plan to add the note that you see highlighted to identify where the boat docks will be and to identify a walkway through the preserve that will ultimately lead to the docks when they get constructed. So that's Petition No. 1. CHAIRMAN STRAIN: Rich, in order to keep some of our questions -- MR. YOVANOVICH: So if anybody has questions on -- CHAIRMAN STRAIN: Yeah. Why don't we ask the questions on this part of your presentation from us first and then -- that way we'll keep it a little bit sorted. COMMISSIONER SCHIFFER: Yeah, I like that. CHAIRMAN STRAIN: Brad, do you have any? COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: Okay. COMMISSIONER SCHIFFER: Rich, to start with, on the original master plan, why would you -- if you intended to put the docks in the waterway, why would you show it going up in the Turkey Bay, Water Turkey Bay? MR. YOVANOVICH: What ended up happening, Mr. Schiffer, is when this project was going through the rezoning process, there was concern from neighbors and the then president of the Vanderbilt Beach Residents Association, and there was concern that we identify where this conservation easement ultimately was going to be. Staff at that time insisted that the entire waterway had a crosshatching on it and that ultimately the conservation easement would be placed on the waterway other -- other than those areas where the docks were going to go. So the master plan is dedicated that way. The state approvals for the boat docks have conservation easements over only Water Turkey Bay, not over the manmade water body, so that furthers the evidence that the "thou shalt not build boat docks in Water Turkey Bay" is what we've honored and what we're moving forward with today and is how we've permitted it through the state agencies. But that's why the whole area was crosshatched was staff wanted the whole area crosshatched. So that's kind of where it is, and that's what was approved. COMMISSIONER SCHIFFER: But the question was, why would you draw it -- obviously, the boardwalk goes out -- doesn't go towards where you're building the docks. MR. YOVANOVICH: Right. And through the state permitting process, we were reduced -- and, Tim, do we want -- I mean, this is kind of related but unrelated to the master plan, but I'm going to be crossing over if you -- you'll be hearing some of this. You want to -- I'm going to have Tim respond to you why that moved. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: That's relative to the master plan, so that's great. MR. HALL: Yeah. Originally the observation platfonn/fishing pier was shown up in Water Turkey Bay, and the intent would have then been to come off of this boardwalk out to the docks. That kept this separated from the docks and allowed access or easier access to it by all of the residents in the community, and then the docks would have been a separate facility. When we went into the state pennitting process and all, they didn't like that idea. We had a couple of access walkways associated with the dock. And in terns of minimizing the impacts, they had us move it from there over to here and put it in the same structure as the docks. So that was -- originally it was going to be a separate entity, and then through the state permitting process it got incorporated into the docks themselves. COMMISSIONER SCHIFFER: Okay. But when you drew that, did everybody know they were going to ultimately have docks in the future? MR. HALL: Yeah. The observation platform and fishing pier. But, I mean, yeah, it was clear in the discussions when we were talking about the changes and all that that docks were there, and we actually put a limitation that there would be no more than 60 docks. COMMISSIONER SCHIFFER: But why wasn't it ever drawn or added or little arrow to docks or -- that drawing is totally silent on docks, correct? Page 9 of 94 March 1, 2012 MR. HALL: That drawing is silent on docks. COMMISSIONER SCHIFFER: That's right. MR. YOVANOVICH: And, again, that's not atypical, because the boat docks -- as you go through the process of adopting a PUD -- and I've done a few. And I've tried to locate docks on PUD master plans, and the environmental staff that was in place at the time told me not -- you don't get docks through the PUD process, you get the docks through the boat dock extension process, and we don't want you to put that on the master plan to in any way imply you've been preapproved for docks in that location. So that's why you don't see the docks on this master plan and many other master plans. COMMISSIONER SCHIFFER: Okay, all right. Next question -- and I'm into the PUD -- is the -- there's two areas defined in the PUD with acreage and everything. One is residential, one is preserve open space. So you're giving the impression that the waterway is not part of preserve. It's definitely within that area. But what is the waterway then? MR. YOVANOVICH: The waterway -- COMMISSIONER SCHIFFER: Yeah. MR. YOVANOVICH: -- is designated conservation easement/water body. COMMISSIONER SCHIFFER: Okay. But in the -- I'm just looking at the PUD. So I guess you're saying preserve open space. The waterway is a subset of that, correct? MR. YOVANOVICH: No. COMMISSIONER SCHIFFER: The acreage -- the acreage is. MR. YOVANOVICH: No. The preserve is only where you see the dots. That's the area designated as preserve and limited to the preserve district requirements. COMMISSIONER SCHIFFER: Okay. So the land intensity use in the PUD has so many acres for residential, so many acres for preserve open space yet does not include open waterway. MR. YOVANOVICH: It's open space. It is open space. That area is designated as open space that will be -- it doesn't have the limitations that are in the preserve district. It's open space subject to a conservation easement/water body where the boat docks will go. COMMISSIONER SCHIFFER: Okay. The next thing, let's -- so you're saying that's the open space; the preserve is the docks. The open space is the water. MR. YOVANOVICH: The preserve is a subset of the open space. COMMISSIONER SCHIFFER: All right. The other one I like better for you, but anyway. In the SDP process, when you were going through there, there's quite a few references in the PUD that you have to show all of the final intended improvements. MR. YOVANOVICH: For site development plans? COMMISSIONER SCHIFFER: Yes. So in this process, especially when you were kind of wrapping up the final towers, is there any reference to boat docks either in the water or even up in the mainland? Is there any parking for it? Is there any road to it? Is there any -- anything that has any reference to boat docks? MR. YOVANOVICH: The answer to your question is you cannot put on a Site Development Plan uses that you haven't yet received approval for; however, we do have identified parking area on this site plan and a drop -off area. Do we have it? Now, those -- that's where it will occur. That's where the drop -off and pick -up areas are and parking are for the Dunes project. But I'm not allowed to identify in an SDP a use that hasn't yet been approved. So I can't point you to an SDP today that's approved that says boat docks are future or approved. That's why we're going through this process, and we will amend the SDPs to ultimately allow for the docks at the time we go through the next step, which would be the SDP process, and then finally the building permit process. But right now there's not an SDP that specifically approves the docks, because I don't have the right to do them yet. COMMISSIONER SCHIFFER: So what is this drawing? And I've never seen this before. This is -- MR. YOVANOVICH: These are -- and I'll let Karen explain to you what they are. MS. BISHOP: Karen Bishop, for the record. This first drawing right here, this is the area closest to Building 3. We had two accesses for the docks, and this is where Building 3 -- this is after negotiating with them on what they have -- what they wanted us to do. Page 10 of 94 March 1, 2012 We've created a small -- a small drop -off only here, then people that -- if they want to park at the clubhouse -- let's say they're at Building 1 or in the coach homes, they can park at the clubhouse, which is recreational, or in some cases they'll just walk there. But it's drop -off only, then they take a cart out to here. COMMISSIONER SCHIFFER: Okay. Can you slide that over so I can see the other end of the Y. Okay. MS. BISHOP: This end? COMMISSIONER SCHIFFER: Yeah. What is that connecting? MS. BISHOP: This is where it comes into Building No. 4, and that one is here where it comes in right here, and that has already been built. This parking here, this SDP's already been approved. This parking has already been built, because these buildings also wanted some extra parking themselves. But it is -- it's going to be an area that's going to be used for access to the docks as well as some drop -off areas. They have a lot of trucks in this area and stuff. COMMISSIONER SCHIFFER: Okay, all right. So what you're saying, though, Rich, is in the whole SDP process, even those parking spaces that were added, the word "dock" was never associated with them? MR. YOVANOVICH: Correct. COMMISSIONER SCHIFFER: Okay. And who does own the preserve areas? Is it the master association or -- MR. YOVANOVICH: I don't think that they've been conveyed to the master association yet, but some of the preserve area will be part of the master association, and part of the preserve will ultimately go to the state. COMMISSIONER SCHIFFER: Okay. In permitted uses, except in the preserve area, I guess, the -- if you go to the -- I'm going to go to the boat dock section of the code, 503.6 (sic), in this case D, it does give us the ability to determine whether something is a principal or accessory use; a dock is a principal or accessory. MR. YOVANOVICH: Are we talking about the LDC now, or are we talking -- COMMISSIONER SCHIFFER: LDC. MR. YOVANOVICH: Okay. COMMISSIONER SCHIFFER: And it's 503.06.D. MR. YOVANOVICH: Okay. COMMISSIONER SCHIFFER: It states there that the boathouse and dock facilities proposed on residentially zoned properties will be defined as accessory use. So I guess if it's not built on the property, does it then become a principal use, or does it still say -- MR. YOVANOVICH: The answer to your question is, is the PUD document prevails as far as what the allowed uses are within this property. And in this particular property, the zoning document clearly says the docks are an accessory to the residential uses. So you look at the PUD document to determine whether or not this is, quote, an accessory use or a principal use. You don't go to the LDC; you go to the PUD, and the PUD says the docks are accessory. COMMISSIONER SCHIFFER: And the important word is "to the residential" versus, in this case, "on the residential." MR. YOVANOVICH: It's to the residential uses, not on the residential parcel. COMMISSIONER SCHIFFER: Okay. And that's interpreted to mean it's to be used by the residents. MR. YOVANOVICH: The -- to put it matter -of- factly like we did at the NIM, these docks are only for people that live in the Dunes, okay. It's not open to anybody outside of the Dunes to buy a dock and utilize the dock. So it's clearly accessory to the residential development that was approved by the PUD. COMMISSIONER SCHIFFER: Okay. Let me just jump a bit. Okay. I'm still -- I'm going to save that for staff. Never mind. Mark, I can pass. CHAIRMAN STRAIN: Okay. Anybody else have any questions before -- we're sticking -- we'll stay with the PUD first. Phil? COMMISSIONER BROUGHAM: With the insubstantial change? CHAIRMAN STRAIN: Yes. COMMISSIONER BROUGHAM: Make some allowances for a greenhorn commissioner here, Mr. Page 11 of 94 March 1, 2012 Yovanovich, but I have some questions. In the original -- original PUD, 1998 -24, you depicted a boardwalk going to a marginal wharf at that time running along parallel to the mangrove shoreline and in the waterway, I'd assume. Now, that disappeared with the subsequent PUD in 2000. Can you just speak to the -- if you depicted a marginal wharf in 1998,1 guess is my point, why would you have not depicted boat docks in your 2000 PUD? MR. YOVANOVICH: You'd have to go read the legislative history, and I'm happy to provide the minutes. But the boat docks were removed from the discussion because they wanted to go through the process we're going through today, which is a public hearing process, to identify the location of the docks and how many we're allowed to have. So that was what happened through the PUD amendment process. We left it for a later day through this public hearing process, because there was a lot of discussion regarding the where and the where -- where you can have it and where you can't have it and so that's -- COMMISSIONER BROUGHAM: No. I heard you say that earlier, and I guess it's more to the point of my question. Maybe I wasn't clear. It seems to me in just looking at the history that the original concept was to have a marginal wharf that you could walk along and fish off of or whatever, and then that concept was abandoned or you changed your mind or something. MR. YOVANOVICH: No. You had the initial marginal wharf, if you will, but the docks that either would become part of that or go off of finger piers or whatever, was left at that time for another day, and that, at the time, was going to be through the conditional use process, which was different than any other PUD had gone through at that time, and that's why in 2000 the commission said, well, it's not fair to make this petitioner go through the conditional use process when nobody else has to go through the conditional use process. Make them go through the boat dock extension process. COMMISSIONER BROUGHAM: Okay. Earlier you had mentioned the issue or point of ownership of the waterway itself, the manmade waterway. And according to records on Collier County appraiser, whether they're accurate or not, it shows ownership by Vanderbilt or the Dunes, and there's -- there was also then a submerged land -- what's the terminology? CHAIRMAN STRAIN: Lease. COMMISSIONER BROUGHAM: -- lease applied for through the state back in 2005,1 believe. Why was that submerged land lease necessary if you owned, quote- unquote, the property? MR. HALL: If the docks are eventually approved and the land under the docks is conveyed to the state, it will be in state ownership, and so the lease would be the appropriate mechanism for us to have the docks located there if they're on state lands. COMMISSIONER BROUGHAM: Okay. And that -- unless there's been a subsequent land lease, that land lease was for five years expiring in 2010? MR. HALL: The lease. COMMISSIONER BROUGHAM: Submerged land lease, excuse me. MR. HALL: It is valid for five years, and then it's reviewed. The dock -- normally the process is the docks are reviewed for compliance with the permits, and if they are compliant then the lease is renewed for another five -year period. COMMISSIONER BROUGHAM: But at this point in time the lease is not in force because it expired in November of 2010? MR. HALL: No. The land hasn't been deeded to the state yet, so the lease isn't valid until that happens. COMMISSIONER BROUGHAM: Okay. All right. One final one concerning that waterway. It's designated an Outstanding Florida Waters -- waterways -- MR. HALL: Correct. COMMISSIONER BROUGHAM: -- that channel, that manmade channel. MR. HALL: That channel to the bridge. The delineating line for the OFW is the bridge there at the road. COMMISSIONER BROUGHAM: And do you feel, based upon your proposals for dredging, et cetera, that you conform to the requirements or restrictions within that type of a waterway? MR. HALL: Well, l mean, we went through the entire environmental resource permitting process with the docks. It was reviewed by both the Water Management District and DEP in this case. And, yeah, I believe we do, and they agreed. They issued the permits. Page 12 of 94 March 1, 2012 COMMISSIONER BROUGHAM: So the DEP found that it was clearly in the public interest and not contrary to the public interest, the construction of the docks and the dredging? MR. HALL: Correct. And some of the components that went into that decision was the actual deeding of lands to public ownership, both some of the preserve areas and the waterway itself. COMMISSIONER BROUGHAM: Okay. Even though the subject docks are going to be exclusive for occupants, residents of the Dunes, not the public? MR. HALL: Correct, yes, sir. COMMISSIONER BROUGHAM: Okay. Thank you. That's it. CHAIRMAN STRAIN: Okay. Anybody else on just this part of it? COMMISSIONER SCHIFFER: One more. CHAIRMAN STRAIN: Brad? COMMISSIONER SCHIFFER: Rich, in the master plan, the PUD itself -- I'm sorry -- 5.3 discusses the PUD master plan, the exhibit, which is the one that shows the wharf in Turkey Bay. It does actually, in 5.3C, give us some guidance on what would be a minor change or a refinement to that plan. Why wouldn't the docks have been mentioned in that, essentially the final location of the docks? MR. YOVANOVICH: And I don't mean to answer your question with a question, but what this -- what this -- well, let me take that back. What this allows you to do is move the lines on the master plan, because they're not -- they're conceptual lines and they're allowed to move, okay. That's, in fact, the process that we think we should have gone through in the first place was to identify the docks through this minor process. There's a -- there's different processes you can follow. You can have an insubstantial change process, which is the process we're going through right now, and then you could have something that's less than that where you don't even -- that's an administrative -level decision, and the moving of a line can be an administrative decision. Now, the reduction of the preserve area by more than X number of acres puts you into a different level of review, just like something less than that number is considered insubstantial. So you've got different things here, and this is intended to mean -- to deal with the minor moving of internal lines to the PUD document. Identifying what uses can go where on the PUD isn't one of those things that's an insubstantial change to the master plan. Just like, you know, where you ultimately decide on that document to build the clubhouse; that's an accessory use. It doesn't show up on the master plan. I mean, is it an insubstantial change to the master plan? Now, is it -- I guess if you want to go further out, it would -- I'd have to amend the whole PUD to identify where the clubhouse is if I'm not allowed to put the improvements that are allowed under the master plan on the master plan within the project. It never was intended for the actual location of accessory uses. That provision deals with, if you want to shift residential line to the north or the south, you can do that as an insubstantial minor change through staff. COMMISSIONER SCHIFFER: Okay. I'm done, Mark. CHAIRMAN STRAIN: Anybody else have any questions on this part of it? COMMISSIONER AHERN: Just one. CHAIRMAN STRAIN: Go ahead, Melissa. COMMISSIONER AHERN: Rich, you mentioned the docks that were permitted across the canal. Can you explain a little more what you -- you stated that this master plan was already approved prior to those going in. MR. YOVANOVICH: Correct. COMMISSIONER AHERN: Can you just explain the process and what happened a little more. MR. YOVANOVICH: Well, the property owners across the canal went through, I guess, the permitting process because they're within the 20 feet. I don't think they had to do a boat dock extension. So they went in -- they got a building permit to locate their docks within the manmade water body that had already been identified on this master plan as a conservation easement/water body. So we do know that docks are a consistent use with the designation of this area on the master plan. Staff -- you know, it was there. I mean, it was already there and staff hasn't said, so you're not allowed to apply for those docks, and they issued them the permit. So my point is is it's clearly not an inconsistent use with the designation "conservation easement/water body." Page 13 of 94 March 1, 2012 COMMISSIONER AHERN: Thank you. CHAIRMAN STRAIN: Anybody else have any questions on this portion of it? COMMISSIONER BROUGHAM: Just one follow -on. CHAIRMAN STRAIN: Go ahead. COMMISSIONER BROUGHAM: Rich, can you point to the aerial view and show -- illustrate where those docks you just spoke of are located, please. Those two -- MR. YOVANOVICH: There's four docks within that area that are clearly in the area designated conservation. It's hard -- I mean, I wish I had a better close -up, but that's -- COMMISSIONER BROUGHAM: It's not the docks within that inlet. MR. YOVANOVICH: Well, we have a better picture. COMMISSIONER BROUGHAM: Okay. Well, just to save time, those are the white -- MR. YOVANOVICH: Yes. COMMISSIONER BROUGHAM: -- appearing objects there in the waterway? MR. YOVANOVICH: Yes, they are. COMMISSIONER BROUGHAM: That's good enough for me. Thank you. CHAIRMAN STRAIN: Anybody else? MR. HALL: You'll see them later. COMMISSIONER EBERT: Yes. CHAIRMAN STRAIN: Go ahead, Diane. COMMISSIONER EBERT: Rich, in going back and looking at the Board of County Commissioners, the'98 BCC meeting -- MR. YOVANOVICH: Okay. COMMISSIONER EBERT: -- I stumbled upon a couple things here and would -- it probably would be with Ms. Bishop. Mr. Hancock is saying to her, what is called a marginal wharf, he said, which I still look for in the dictionary and can't find exactly what it means -- but it looks like a boardwalk along the mangrove area. That obviously has to be permitted by the state. But I wanted to ask that overnight docking of vessels be precluded along the wharf. And a little later on Mr. Hancock says, my concern is that that boardwalk becomes a marina. And Ms. Bishop said at the time -- what we did at the time we put it in there, we wanted to do some sort of water activity. What I'd like to be able to do is stick it in as a conditional or provisional use, like you said, and come back to you again with that plan, if I can even get a permit. There's certain criteria that I would have to adhere to state level. Because of the width of this canal, I can assure you there will never be a marina here. It's not wide enough. That was her own -- CHAIRMAN STRAIN: Ladies and -- I've got to ask that you not respond to things like that from the audience, please. This meeting needs to be fair and unbiased. We need to proceed without any input like that. So please refrain from that. COMMISSIONER EBERT: And this was in -- Commissioner Hancock then asked her, please respond with detailed plans, opposed a marginal wharf. And she said, thank you. That's what I would like to do, provisional or conditional use, whichever you prefer. MR. YOVANOVICH: Correct, and then fast forward to the time 2000 when the PUD was changed, and you have it in its current fonn. There were changes to the PUD. The provisional use process was removed. We can cite for you the definition of a marina, if you would like. And I believe if you put it in the context that people were concerned about, it was going to be a -- marinas require a combination of uses, together with the dock. And usually the combination of uses will include either fueling, boat repair -- that's the context of marina. Now, we were to come back through the process with an actual configuration of the docks in the future through the provisional use process up to the year 2000 when the PUD was amended to no longer require the provisional use process. It made it very clear that the docks are accessory to the residential uses, and that if we needed to go out more than 20 feet, which we knew at the time we did, we were going to go through the boat dock extension process, and that specific provision in the LDC or process in the LDC was included in the PUD. There is no question that we are allowed to come in and ask for boat docks through this process, that we're Page 14 of 94 March 1, 2012 going to go with a second petition today. We at no time gave up our rights to do that, and that's what we're going forward with today. We got sidetracked on a process that's probably going to take the better part of the morning -- or who knows, maybe I'm optimistic -- to get through just that process before we get into the boat dock extension process, but that's kind of where we are. COMMISSIONER EBERT: Rich, as far as accessory uses in a PUD, I've seen it in other PUDs where there is nowhere to have a boat dock or fishing pier and yet it is in the PUD as an accessory use. And I was not going to go forward to the 2000 portion yet of this, but I do have some questions when it comes there also. MR. YOVANOVICH: Well, that's what we're on, because that's the only zoning document that applies to this property. So I'm happy to answer any questions regarding the current existing zoning on the property. And if we need to talk about 1998, I will, but I think 2000's the discussion that we need to be having. COMMISSIONER EBERT: Okay. Well, I'll just kind of wait just a little bit, and I have some for staff also. CHAIRMAN STRAIN: Okay. Well, staff report's not going to come until Richard finishes two presentations. COMMISSIONER EBERT: I know. CHAIRMAN STRAIN: Okay. Anybody else have any questions on this part of Rich's presentation? Rich, I have a few. The PUD in 2000, I thought you said it was -- it was amended. It didn't. It repealed and replaced the prior PUD. MR. YOVANOVICH: Correct. CHAIRMAN STRAIN: Correct? MR. YOVANOVICH: Yes. CHAIRMAN STRAIN: Okay. You had mentioned, or I think Tim had mentioned, that there were 947 boat docks supposedly allowed by the Manatee Protection Plan. The only reason I'm mentioning this now is because you put that on the record. I don't believe that's accurate based on the Manatee Protection Plan, but we'll get into that when we get into the boat dock discussion. Tim, if you don't mind answering a question. You had said in your -- previously that there were 60 boat docks were stated in the public meeting that would be -- you know, they were talking about up to 60 boat docks being allowed. MR. HALL: That was the maximum, that they would not go more than 60. CHAIRMAN STRAIN: Why did your company apply for 84? MR. HALL: The application was originally made before that. When we started the boat dock application process, or not -- the boat docks with the original exhibits and all, it was before that PUD meeting actually occurred. CHAIRMAN STRAIN: Okay. So -- I mean, I went to the South Florida preliminary portal and down -- and read everything there. There's thousands of pages. But I did come across that continuous bank of finger docks. MR. HALL: Right. CHAIRMAN STRAIN: And I think there was 84 or 89, I can't remember which for sure. So the date on that would be after -- or prior to the date of the commission meeting in which the 60 was discussed, when I go to check that during break or lunch today. MR. HALL: I believe so. CHAIRMAN STRAIN: Okay. MR. HALL: It's a long time ago. I mean, I believe so. If it was after the date, then it was -- you know, it was corrected when we did realize the mistake. CHAIRMAN STRAIN: Okay. That's all I had for you. Thank you. And, Ray, could you put that overhead -- or that coloring graph. Richard, I have some questions about the various areas. Forget the penciled numbers. I was trying to figure some things out. The yellow, I believe, is an area of wetland preservation that has a different preservation easement over it, then orange area in the south. That orange area's another preservation easement, but that one allows uses like boardwalks; am I correct? Page 15 of 94 March 1, 2012 MR. HALL: That's correct, yes. CHAIRMAN STRAIN: Okay. The green area, which follows the water lines, is a conservation easement that's over Turkey Bay in those areas in that -- or that lead to it; is that correct? MR. HALL: Correct. CHAIRMAN STRAIN: Okay. Because I pulled these off of the best records I could find. The area that is to the south, and the pink line, that's the submerged land lease area where the proposed docks are going to go. MR. HALL: Yes. CHAIRMAN STRAIN: Okay. And then the white area around that line and where it leads up into the mangrove wetland, which is where the orange kind of hooks into a cul -de -sac there in the south, that area is not yet under any kind of conservation easement; is that right? MR. HALL: That's correct. CHAIRMAN STRAIN: But your intention is to put it under a conservation easement when these -- this dock thing is figured out with the exception that you can have docks in that -- within that easement as well? MR. HALL: Right, and then convey it to the state. CHAIRMAN STRAIN: Okay. Now, that's -- will the conservation easement occur prior to the conveyance? MR. HALL: It should, yes. CHAIRMAN STRAIN: Well, the reason I'm asking -- then the conveyance to the state means you're quitclaiming the deeds to those areas, both waters of Turkey Bay and the water channel to the south, to the state; is that right? MR. HALL: Yes. CHAIRMAN STRAIN: Has the water of Turkey Bay been quitclaimed yet? MR. HALL: No, sir. CHAIRMAN STRAIN: Okay. Then I've got, I guess, a question of the county attorney. Heidi? MS. ASHTON- CICKO: Uh -huh. I speak better with a pen in my hand. CHAIRMAN STRAIN: Okay. The waters of Turkey Bay and the waterway to the south, if the conservation easements are provided now or prior to the quitclaiming of those over to the state, does the quitclaiming of those to the state have any impact on the validity or changes needed to the PUD for loss of area for reduction in PUD acreage? MS. ASHTON- CICKO: If I'm understanding you correctly, you're asking whether those conveyances affect the density or intensity that the PUD already has. CHAIRMAN STRAIN: Well -- MS. ASHTON- CICKO: And -- CHAIRMAN STRAIN: -- when you change the configuration of a PUD and you change ownership, are they going to have to come back in to deal with that in the future? MS. ASHTON- CICKO: In my opinion, no, because when I reviewed the previous records of the meeting, they -- even without that area they still could have asked for more density. So even though that was -- might have been area that was used to maybe have a lower per -acre density, they still could have asked for it. MR. YOVANOVICH: And if I could supplement that, if it's appropriate. Remember, the entire area is still subject to the PUD. You frequently will convey portions of the PUD to third parties. CHAIlZMAN STRAIN: I'm just -- MR. YOVANOVICH: So it's still used in the calculation of space regardless of who ultimately owns that. CHAIRMAN STRAIN: Right. I understand that. MS. ASHTON- CICKO: And I think that, you know, when the property gets deeded to the state, you know, all the conservation areas that are specified can either go to a governmental entity or to Collier County. So the fact that this would be quitclaimed to the state, that -- in my opinion, that would comply. CHAIRMAN STRAIN: Okay. MS. ASHTON- CICKO: And it could have some subject to conservation language in the deed to the state. CHAIRMAN STRAIN: Okay. Thank you. Richard or Tim, then, when all this is put into easements and your preserve areas already exist that are, will you have any changes to the quantity of acreage pledged in the PUD for preserve open space? MR. YOVANOVICH: No. CHAIRMAN STRAIN: So you are not decreasing the conservation easement? Page 16 of 94 March 1, 2012 MR. YOVANOVICH: Right. CHAIRMAN STRAIN: The issue of the accessory use being placed in the residential tract -- I had pulled the definition of accessory use in the code, and it is interesting, because it puts a whole new twist on the way we may have to look at things in the future, although I doubt if it's the right way. Accessory use, a use or structure located on the same lot or parcel and incidental and subordinate to the principal use or structure. I would have to suggest, I don't ever -- think we've ever done a boat dock that's been on the same parcel or lot in this county, unless they happen to own the submerged land bottoms. Ray, are you aware of any that fit that description? If not, we need to certainly correct that definition. MR. BELLOWS: I'm not aware of any, but we c look at the definition. I think sometimes we treat docks as an accessory use, but not falling under that kind of recreational use or definition. CHAIRMAN STRAIN: Well, sometime maybe we can talk further -- MR. BELLOWS: Yes. CHAIRMAN STRAIN: -- because I would love to see how that's applied then, because if it's not -- well, okay. Do you know how much parking you have in the overall project versus number of units you have; how many spaces versus units? MR. YOVANOVICH: I don't know it off the top of my head. We can do our best to try to get that number for you. CHAIRMAN STRAIN: Generally, I think we run, what, 1.5 parking spaces per unit. If you could, sometime today, validate that, that would help with the parking questions that I've seen come up. MR. YOVANOVICH: Okay. CHAIRMAN STRAIN: Ray, do you know if the docks -- and I didn't see this till today. Those docks at the Surf Colony -- or maybe they're not Surf Colony, but to the south of that inlet across the way that are on the opposite seawall, were they required to be shown on any -- is that an RSF -6 or -12 zoning, or do you know if it's PUD zoning? MR. BELLOWS: I'll have to defer to Nancy. CHAIRMAN STRAIN: Well, we can answer that later today. I'll look during break. I didn't know if anybody knew offhand. And according to the staff report the intensity of the land uses that are being asked for, the dock on the master plan, Question "I" says -- it asked about the intensity and says, this does not increase the intensity of the permitted land uses. The proposed amendment will not change approved density or intensity authorized by the PUD or otherwise affect any element of the GMP. So does that mean that the required parking for an accessory use, as these are considered, was already calculated into the parking requirements provided in the PUD for the Dunes residential? MR. BELLOWS: I don't believe the answer to that question was taking that into consideration. It was really the intensity of the number of docks. The docks are a permitted use within the PUD. So this, by showing the docks on the master plan, does not change that relationship. CHAIRMAN STRAIN: Okay. But the question has come up that -- do the docks need additional parking? And if they're an accessory use to a principal use, then if they need additional parking on this PUD, they need additional parking in every PUD in every residential unit in Collier County. Is that how we look at accessory uses? Do we change their -- do we require additional parking if an -- depending on the type of accessory use approved with a permitted use, such as a residential unit? MR. BELLOWS: The LDC has definition -- or parking requirements for specific uses. One of those would be clubhouse or recreational facilities serving -- sometimes PUDs have specific parking allotment for those kinds of accessory uses; some don't. Where the PUD is silent, then we fall back on the requirements of the Land Development Code, and those are typically determined at the time of SDP based on the square footage and the like being proposed. CHAIRMAN STRAIN: Is there a requirement in the LDC to provide additional parking for a dock as an accessory use to a residential structure? MR. BELLOWS: There's nothing in the Land Development Code that has a parking requirement for docks as an accessory use. CHAIRMAN STRAIN: Okay. So that means that the calculation then for the accessory use is included Page 17 of 94 March 1, 2012 within the residential component when it was approved for this PUD. MR. BELLOWS: Correct. CHAIRMAN STRAIN: Okay. That's where I was trying to go on the first question, okay. That's all I've got. Thank you, Richard. If you want -- are there any other questions on the -- COMMISSIONER EBERT: I do have a question. Richard, did you say or, Tim, did you say the orange area down here is not in conservation easement? MR. HALL: No, ma'am. The orange area is under what's called a passive use conservation easement. So it's an easement that allows for passive use activities, like boardwalks and hiking trails, access walkways, and that sort of thing. MR. YOVANOVICH: There's two different easements, Ms. Ebert. There's easements we have to give to the state, then there's easements that we have to give to the county. We have not conveyed to the county any preserve easements yet. That's one of the conditions. When we get approval, we have to convey the necessary preserve easements to the county, and then those preserve easements will have the reference to our ability to have boardwalks to get to our docks. CHAIRMAN STRAIN: But as a matter of clarification, you have conveyed easements to South Florida, which are the ones I have outlined on here -- MR. YOVANOVICH: Correct. CHAIRMAN STRAIN: -- because I did find those and trace them. MR. YOVANOVICH: Absolutely. COMMISSIONER EBERT: Okay. MR. HALL: And there's actually one -- an additional one that will go to DEP that you're not showing runs along this shoreline. CHAIRMAN STRAIN: The one foot? MR. HALL: The one foot. CHAIRMAN STRAIN: The cheater strips so they can't -- so they can stop you from expanding the docks. MR. HALL: Yes. CHAIRMAN STRAIN: I read that, but I didn't know how to put one foot on a scale like that, so I didn't bother. COMMISSIONER EBERT: Okay. Because there was -- in the 2000 Environmental Advisory Council, Ms. Bishop was saying that -- they were asking questions about this wharf, and she says, well, at this point there was discrepancy between staff and them, and she said at that point, because the Conservancy was interested in something there, she said, at this point negotiations haven't gone that far because we haven't gone that far into building a boardwalks or any type of wharf along the canal. And she said, the piece that heads into Water Turkey Bay, we have set aside our document. There will be no impact of Water Turkey Bay at all. As a matter of fact, we have two separate conservation easements. That particular one in the area allows nothing at all. But the south allows some boardwalks and some little hiking areas and some educational areas, but that's it. There is, you know, no kind of development in those areas at all. And our conservation easement's already in place so there is no question that there (sic) isn't already taken care o£ That was from the environmental council. And that's why I was just asking this. So the one at the south is just for the boardwalks, but there will be no development in that area? MR. HALL: Well, there will be no building development area. The boardwalk goes through it to access the docks, which are along the waterway, and outside of that particular passive use easement. COMMISSIONER EBERT: Okay. Thank you. CHAIRMAN STRAIN: Okay. Is there anybody else on this portion of Richard's presentation? (No response.) CHAIRMAN STRAIN: Okay. Instead of going into your next one, why don't we take a 15- minute break for the two court reporters today, and we'll be back at 10:30 to resume. (A brief recess was had.) CHAIRMAN STRAIN: Okay. If everybody would please sit down and take your seats, we'll try to move forward with the meeting. Page 18 of 94 March 1, 2012 The two court reporters are fully refreshed, and I thought we'd have a contest with how fast we can talk to see who wears out first. By the way, Cherie and Terri are always our court reporters, but they're never here both at the same time, but they do switch off. So it's kind of interesting they're both here today. Brad, did you have something you wanted to -- COMMISSIONER SCHIFFER: Well, I just wanted to make sure. We -- the only thing we have for the Lost Grove is one handout, correct? CHAIRMAN STRAIN: Well, I'm going to go over that in a minute. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: During break we got some handouts, so I'm going to walk you through them. One actually we got earlier this morning has a cover page with Alico on it. COMMISSIONER SCHIFFER: Got it. CHAIRMAN STRAIN: That is from staff. That is a -- part of our package, I assume. There may be more coming for the meeting on the 15th. It will be the fifth meeting, I think, on -- well, Lost Grove takes the record. While this one today is complicated, that one certainly carries the weight in that regard. A citizen has submitted another package regarding Lost Grove and asked to have it dispersed today so that we'd have it in time. That is the second package with the black binder. And then Mr. Pires decided that since I couldn't read this blacked -out mess he emailed all of us that he would give us a printed copy on his printer and ink, instead of mine. And so we have that, and I think there's 31 pages or so in that. So that's -- the handouts we received during break. And with that, housekeeping's done. Richard, I think we can move in. Unless there's any other questions on the first part of the presentation. If not, we'll move directly into the boat dock extension. Oh, Nancy. MS. GUNDLACH: Speaking of documents, I have a copy of the neighborhood information minutes of meeting from Monday evening's meeting, if you'd like. CHAIRMAN STRAIN: Well, why don't you pass those out at lunch, because we're not going to get to it before lunch. MS. GUNDLACH: Okay. CHAIRMAN STRAIN: Or at the time we get to your staff report. MS. GUNDLACH: It's just related to the PDI, that's why. CHAIRMAN STRAIN: Okay. I'd rather we were paying attention to the presentation. We can read this, though, certainly before we -- on one of our next breaks. MS. GUNDLACH: Okay. CHAIRMAN STRAIN: Thank you. Rich, it's all yours. MR. YOVANOVICH: Thank you. We're now on to the boat dock extension petition. And, you know, I want to do some just brief introductory comments and then turn it over to Tim, since he's truly the expert here and will take you through how we meet the criteria and that our request is both consistent with the Land Development Code and the Growth Management Plan. But we've been through several meetings, at which the public speaks, and I think what's lost in this whole public process is people are forgetting that there's a very important public that I'm not sure is being given fair consideration. And part of the public is actually the developer. He's part of the public and has rights under the documents, but also you have all of the residents of the Dunes are part of the public, and the Dunes have the right to go through this process and get boat docks. We've heard from several people as we've held NIMs at -- why are you doing this? Clearly the public doesn't want this. Well, with all due respect to those who don't want it, the property owners have rights, and we're moving forward with that. I don't know if I've said that to them. But please also consider the residents of the Dunes as you're doing your deliberation, because I think frequently they get left out of what is considered the public. What you have in front of you as part of the boat dock request is a request for 49 boat slips, which is less than the 60 we committed to as part of the PUD process. Page 19 of 94 March 1, 2012 We have all of the permits we need from the state agencies. We are now going through the county process. Their request you have before you is consistent with the Land Development Code and the Comprehensive Plan based upon not only Mr. Hall's review, but your own staffs review. Your staff is, in fact, recommending approval. I'm going to ask Tim to take you through in greater detail the boat dock request in front of you and how we have addressed the criteria in the Land Development Code and the requirements of the Growth Management Plan. When he's done, I'll get back up here briefly to make some more comments, and then I can answer any questions that you may have. But it may be helpful to let Tim complete his presentation before asking any questions, if that's acceptable to the Planning Commission. CHAIRMAN STRAIN: That's fine. MR. HALL: Thank you. Again, for the record, Tim Hall with Turrell, Hall & Associates. We have been working on this project for, I believe, about 15 years, looking at the Dunes and the waterway and the boat docks themselves. And I'm going to try to basically walk you through just the -- a series of exhibits showing how we got to the configuration that we are now with the docks. And I need to figure out which way to go with these. To start out, generally, when we -- when we try to permit projects, we look to put docks in areas that have been previously disturbed, if at all possible, or in areas where they'll do the least amount of damage from an environmental standpoint, if there are no previously disturbed areas. This exhibit, it's a 1952 aerial. You can see the construction of Vanderbilt Lagoon is underway. This water body up here to the north is Water Turkey Bay, and the waterway that connected the two, if you will, is that yellow line that runs through there. When all of the waterways were then constructed, there was a manmade channel put through that area and, you know, it gives us the waterway that we have done now. That was actually done in a couple of phases. In the mid 1960s I believe it was dug to about 80 or 90 feet wide, and then it was later expanded to the -- you know, to the dimensions that you see there now. The access from the site all the way out to Wiggins Pass, that is the access to the Gulf of Mexico for boaters that are using it. There is a defined marked channel that starts in Water Turkey Bay and goes through, and it also kind of runs to where the center span of the bridge is. That's an approximate. We don't have good, I guess, latitude /longitude coordinates for that bottom section of the channel, but that's how it's depicted on some of the NOAA charts and all. So, you know, knowing that the docks were going to go into the manmade portion of the waterway, we looked at several different configurations, as Mr. Strain had mentioned previously. Started with 84 where all of the vessels were perpendicular mooring with finger piers and some of the on -site investigations, and then we had the mangrove fringe that we were trying to protect water depths and some submerged resources, seagrasses issues, that all led to us pushing the docks further out from the mangroves than they were originally planned. If you look at where the -- where the dock kind of comes out here, the original plan basically had this walkway going, you know, right along the mangroves. But through all of the changes and movements, we pushed it out to the configuration that you see today. Getting into some of the boat dock, you know, criteria, one of the state requirements is that you're not allowed to impact or protrude more than 25 percent into the width of the waterway. And they apply that to mean the navigable waterway or those areas where a boat, canoe, kayak, you know, whatever could travel, so -- and on this site it would be from the mangrove fringe line on one side to the seawall on the other side. And what we drew or have shown on there then is the 25, 50, 75 percent of the waterway protrusion associated with that. And we wanted to make sure that everything that we did stayed on the landward side of that 25 percent line so that we weren't protruding that far into it. Early on in the state permitting process, back I think it was in 2006, there were a lot of concerns raised about navigation in regards to the state permitting process. At that time one of the representatives from the Fish and Wildlife Conservation Commission, who kind of oversees navigation in some of the waterways around here, or at least they provide the opinions to the state from another state agency on navigation. They did look at this plan and did not have any concerns related to navigation problems because of the Page 20 of 94 March 1, 2012 separation from where the docks were to where the channel is, and the width of the channel in those areas they felt gave a lot of space for people to maneuver and that, combined with the fact that it's an idle speed zone, you wouldn't have boats running up and down there at high speeds and, you know, impacting people trying to get in and out of the slips or people backing out of the slips and impeding people trying to speed through the waterway. So the north and south side, you'll see in the BDE, the protrusion, 281 feet. In the boat dock extension process, the width of the waterway is measured from the mean high -water line, not the navigable portion of the channel. So you'll see in our submittal that's the one primary criteria that we don't meet. And if you look at why, this -- where the mean high -water line is in relationship to the overall waterway, it's about 40 percent. There's no way that we could put the boats along the shoreline without being more than 25 percent under that -- under that definition. So the protrusion is the 281 feet, which I believe is 261 feet more than the 20 allowed. And all along in the exhibits that you have -- you should all have copies of these exhibits -- we showed the -- you know, the protrusions in different areas, and you can see that the intent to keep at least 50 percent of the channel open for navigation is maintained in all areas. The other thing we looked at was impacts to the vegetation or impacts to environmental resources out there. We had mangrove impacts associated with this project, and you can see it's about .14 acres. There was mitigation required at the time of the environmental resource permitting for the project. It was originally a different location that was permitted that impacted more mangroves. It was about .17 acres with the relocation of the boardwalk. That actual impact area went down; however, the mitigation that was provided was still for that .17. So that --you know, that was covered. And then the other thing was there's a potential behind those docks for seagrasses to grow. So we have committed to doing some metal grating which allows more light penetration actually through the structure, and that's proposed and -- over that area where it's possible that seagrasses could grow based on, you know, previous surveys. I will say that the majority of the surveys -- and, you know, at this current time there are no seagrasses there, but that grating is still proposed because it is possible that they could come in and colonize that area later on. I won't really bother to go through the cross - sections unless you guys want to see them later. So basically when you get to the -- I think a lot of the discussion that we may have could revolve around this exhibit. We've got an access walkway that comes from the uplands, and it's a -- doubles as a cart path and a pedestrian walkway, and that goes out to the dock. We have a marginal access dock that goes along the mangroves, and then there's parallel mooring along some of it and perpendicular finger pier mooring along the rest of it. At the northern end there is a -- the small fishing pier and overlook that will be accessible to all of the residents at the Dunes. In going through the different primary criteria, like I said, we do not meet the 25 percent with the waterway because of the mangroves that are there; however, we do feel that we meet the other primary criteria, the number of slips that are proposed, 49 versus the 600 -plus residents that are -- that are in the buildings. Also, in terms of the length of the shoreline, they own a little over 9,000 feet of shoreline which, as Rich said, equates to 900 -plus slips that, you know, the Manatee Protection Plan allows. I think everybody realizes fitting 900 boat slips into an area anything like this is not possible. But if you look at the actual letter of the rules and what's allowed based on the shoreline, the 900 -plus is if you assume it's a moderate ranking with -- which allows 10 slips per 100 feet of shoreline. So the 9,000 feet is 900 slips. There's no interference with any neighboring docks. You have the docks that were pointed out before. And I didn't say that, Mr. Brougham, but you can see the four on this exhibit a little bit closer. The separation between, you know, the Dunes facility and the docks on the other side of the waterway is more than sufficient for both sides to maneuver in and out and also for the traffic going north and south through the channel to all be accommodated. There's no impacts. I went over the navigation channel. No impacts to the navigation through that area. And, yeah, the number of slips are appropriate. So in terms of the BDE application, we do feel that we meet the primary and secondary criteria except for those, you know, that were outlined, and I believe that it meets all of the Comp Plan and Land Development Code Page 21 of 94 March 1, 2012 amendments that would allow you to approve it. So if you have any additional questions -- I know that there's questions in terms of, like, responses to Tony's letter to some of the other comments. I don't know if you want me to try to go through that stuff now or later. CHAIRMAN STRAIN: Well, Tim, you guys need to go through whatever you think you're going to need to defend here today at whatever point in the process you want to. We can ask questions whenever's convenient for you during the interface. It's up to you. MR. HALL: Okay. CHAIRMAN STRAIN: If you miss something, it's on your shoulders. MR. HALL: All right. I actually like the way Tony puts his stuff together, because it's -- it's easy for me to follow as well. In terms of -- I guess I'll just go through were he's saying that we're inconsistent and why I don't think we are. Policy 7.2.2 he says we're inconsistent with because seagrass beds shall be protected through the application of these other policies. And 6.3.1, 6.3.2 -- basically the 6.3.1 is the -- has some of the Manatee Protection Plan guidelines. And, like I said, we're subject to the 10 per 100 square feet -- or per 100 linear feet, and I think we're well below that. So we're consistent with 6.3.1. 6.3.2 talks about impacts to seagrass beds minimized by locating the docks more than 10 feet or, where this is not possible, to be sited to impact the smallest area of seagrass beds. There's a height restriction of 3.5 feet NGVD, a terminal platform no greater than 160 square feet, and the access dock no wider than 4 feet. Our access dock is currently proposed at six feet wide. The ADA, Americans with Disabilities Act, requirement is that it be five feet wide. So what we have been told by staff is that the ADA requirements trump this. So five feet instead of four -- and I'm sure they'll correct me if I'm wrong. But the -- that -- they feel that the five -foot limitation would be in place instead of six feet if we're closer than 10 feet -- than 10 feet from the existing seagrass beds. So -- and then the Policy 6.3.3, protection of seagrass beds shall be a factor in establishing new revising existing speed zones to regulate boat traffic. I'm not sure that that has anything to do with this application, so I don't think we're, you know, either consistent or inconsistent with that one. The -- then he goes to, the BDE must be denied for failure to comply with 10.1.6. And, again, that's kind of the same information that's -- oh, I'm sorry, no. 10.1.6 is the fiscal analysis if there is destruction of wetlands. When we went through the state and Corps permitting process, the impacts to those areas were accounted for, and they were mitigated. In our opinion, there was no actual destruction or loss because the functions associated with those wetlands have been mitigated for through the on -site enhancement activities and the mangrove enhancement that occurred in other areas of the property which, from an acreage extent, is a lot greater than what we're -- the .14 acres that we're impacting. Inconsistent with 5.0.3.6.J.3. I need to remember, actually, what that one is. J.3, oh, that's the one that -- yeah, we go back to the previous where you have a contiguous bed of seagrasses and your facility is within 10 feet, then you have to, you know, comply with these conditions. Our dock is higher than .35 feet NGVD. We don't --the facility that we have is a marginal dock. It's not, you know, a terminal platform. The access dock is -- we talked about being 5 feet, and we're impacting the smallest area of seagrass as possible because we've sited everything outside of the seagrass beds. So I do believe that we're compliant with that section. The criteria in terms of primary and secondary, I went through the primary criteria and why I think that we are consistent with that. Aside from the 25 percent width of the waterway, we do meet the rest of the primary criteria. And the seagrass bed, secondary criteria, is in the application going through the secondary criteria. The water depths that we have as well as the seagrasses and all justify the need for moving the docks out as far as they are. I would love to move them out further to get further away from the mangroves and from the seagrasses, but we're constrained on the outside by that 25 percent, the width of the waterway. So between the seagrasses and the mangroves and that 25 percent with the waterway, that's our envelope where we felt we could put the -- put the docks. And so, given those confining conditions, you know, the extension that we're requesting, we do meet that -- the first secondary criteria. The second one, we're not using excessive decking area. What we're proposing there is what we need to get Page 22 of 94 March 1, 2012 to and from the docks. And the impact on the waterfront view of the neighboring property owners, we're changing the waterway. The view's going to change. And it's a personal -- you know, personal opinion as to what the extent of that is. I guess it's a judgment call, and that's something that you guys are probably going to hear a lot of today. In terms of the state, the waterfront view that's afforded a property is similar to their riparian -- riparian rights area. It generally is from their property to the center of a waterway. Their view is not guaranteed to the horizon. So, you know, if you have a neighbor anywhere that decides to change their house or build a house on what was a vacant lot, your view's going to change, and we don't deny that. The view for the neighbors is going to change, but I don't believe that it's a -- it's a major impact. They still have the view to the waterway and to the center of the water that they have always had. And then whether the seagrass beds will be impacted by the proposed dock. That's one -- if there are seagrasses there at the time of construction, it is possible that we could be impacting them, that the access coming out to the marginal dock will cross over them. And then the marginal dock, actually, along the edge of the waterway, if the grasses grow out farther than they have been documented in the past, it's possible that we could impact them there as well. But those impacts have been minimized to the maximum extent that we can and still provide for the 49 slips that are being proposed. We are subject -- anything that's more than nine slips is subject to the Manatee Protection Plan in Collier County, and we meet all of the criteria of the Manatee Protection Plan in terms of the rankings and the avoidance of those issues. So going through, back to Tony's letter in terms of the primary and secondary criteria, aside from this -- the one secondary criteria and one primary, we believe that we meet all of the rest of them. And Rich already talked about whether or not this is valid as an authorized use in the proposed location. I'm not going to get into that any more. The other issue that he stated about the maximum draft -- and he's correct with that. When the permit was actually issued, when we submitted the BDE and all, I used permit exhibits from before the application went to the State of Florida, the governor and cabinet for approval. I talked about the Fish and Wildlife Conservation Commission officer that came out and looked at navigation. When he did that, he said he did not have any concerns related to navigation, but he noted at the time that he did his review that the water depths in Water Turkey Bay were very shallow, and he had some concerns related to the sizes of the vessels that were at the facility. And as a result of that, when it went to DEP, the maximum depth allowed for the slips was reduced from three feet to two- and -a -half feet. And when I made the submittal for the BIDE application, I didn't reflect that change. And so we have redone the exhibits now to show that the maximum depth is two - and -a -half feet, not three feet. I think that's the majority of Tony's letter, and I believe it covers a lot of what will be stated by your other public speakers and all that you're going to have. So I'm going to stop right there, and hopefully we'll have a chance, if something new does come up or that I didn't address, at the end, I can briefly response to it. CHAIRMAN STRAIN: Okay. Thank you. And, Richard, you want -- any more of a presentation, or are we going to questions at this point? MR. YOVANOVICH: Let's -- I think that there'll be enough questions, so let's go to questions, if that's acceptable. CHAIRMAN STRAIN: Okay. Who wants to start? Phil? COMMISSIONER BROUGHAM: Just a couple, Tim. You said there are no seagrass currently present. MR. HALL: I said there's no seagrasses currently present where the -- based on our last survey, there's no seagrasses where the access out to the dock is, where we are proposing the grading. The last couple of surveys that we've done showed no seagrasses in that area. COMMISSIONER BROUGHAM: The specific area where the access walkway would cross over and go to the dock? that? MR. HALL: Correct, yes, sir. COMMISSIONER BROUGHAM: But there are seagrasses present, to your knowledge, north and south of Page 23 of 94 March 1, 2012 MR. HALL: Not to the north. COMMISSIONER BROUGHAM: Not to the north. MR. HALL: All of the seagrass that have been present in the past have been, I would say -- there have about -- I think it was the 2006 survey -- we have noted grasses actually all the way up to where this little bump -out is in the past, but the last few years most of the surveys have shown that the grasses kind of concentrate about from this building down to the mouth of this channel. That seems to be the area where they -- they are concentrated the most. COMMISSIONER BROUGHAM: Okay. You mentioned marked channel, and when I was out there, currently there are no markings for that channel, per se, that exist, right? MR. HALL: For this portion of it, no. The channel markers are through Water Turkey Bay. There are channel markers in Water Turkey Bay. COMMISSIONER BROUGHAM: So the positioning of what is called a channel there is based on what? MR. HALL: It's based on the -- some information that we have gotten from, you know, different charts. We know that the boats -- the majority of the boats that go under the bridge go through the center span. So going from there, and then following the area of deepest water through there. When we did the water -depth surveys and so forth, that's kind of where the deepest water lies, through that area. COMMISSIONER BROUGHAM: So, I mean, that's your conclusion of where it is based upon the depths you surveyed and so forth? MR. HALL: Correct. COMMISSIONER BROUGHAM: Just one other, and I guess it's -- I guess it's a question. The conflict with the 25 percent seems to occur because of that big dip back into the mangroves of the mean high -water mark -- line, excuse me. MR. HALL: That's the majority of it. I mean, that's what creates the need for a 260 -foot extension. COMMISSIONER BROUGHAM: Yeah. MR. HALL: If you look at where we are up here, it's about a 40- or 50 -foot extension. COMMISSIONER BROUGHAM: Okay. Did you ever consider -- well, that's rhetorical, never mind -- avoiding that conflict, if you will? CHAIRMAN STRAIN: You've got something, Diane? COMMISSIONER BROUGHAM: As long as I've asked it. MR. HALL: The original plans, like I said, had the docks right along the waterway and all perpendicular, if we pushed everything right up to the edge of the mangroves with the docking. The downsides to that is it requires more dredging because the water gets shallower as you get behind these docks and up towards the mangroves. And with having found seagrasses there in the past, that just no longer became an issue, or no longer became an option. COMMISSIONER BROUGHAM: But the upside would seem to be that you would avoid any potential disturbance of the seagrasses to the south of that. MR. HALL: I don't disagree with you -- COMMISSIONER BROUGHAM: Okay. MR. HALL: -- but in terms of -- COMMISSIONER BROUGHAM: Just an observation. MR. HALL: In terms of the state permitting to -- with the configurations that we had to use and to fit the number in, that was -- you know, we used what we could and what we were allowed to by them. COMMISSIONER BROUGHAM: To fit the number in? MR. HALL: Right. COMMISSIONER BROUGHAM: So the number drove the decision? MR. HALL: Well, there's still less -- I mean, the hope was to get up to 60, which was allowed, and we couldn't fit 60 in, so we dropped it down to the 49. COMMISSIONER BROUGHAM: Okay, thank you. COMMISSIONER EBERT: I have a question. CHAIRMAN STRAIN: Diane. COMMISSIONER EBERT: I have a question, Tim. I also want to know why there were no channel markers in the channel. And there was -- I noticed on the side, the property where the seawall is, there was a "slow no- wake" through there on their property. Page 24 of 94 March 1, 2012 But when I was at the site visit, I was surprised at what I saw. I wasn't there that long, but I did notice that one of the boats coming through had people sitting on the bow of the boat on folding chairs with no life jackets or anything. And they were doing a small wake. Then there were also two Ski -door, or that type, that came through there barreling through like crazy, and there was another boat going through who absolutely made him stop because they were making wake like I couldn't believe. Do you know how deep that channel is? MR. HALL: It varies, but it ranges probably from about four - and -a -half -- in that stretch of area from about four - and -a -half to maybe six - and -a -half feet deep, and then it goes up -- as you get closer to the mangroves, it goes up to less than a foot against the mangroves themselves. COMMISSIONER EBERT: Okay. Because the other night when I was at the NIM meeting, someone did ask what you considered a channel, and I'd never heard this explanation before. But you said if you can get a canoe through it it's a channel. And -- MR. HALL: That's in -- when you look at the definitions of navigable waterway, going way back, they have -- the Corps of Engineers, you know, a lot of times uses the fact that if you can paddle a canoe through it, it's navigable. COMMISSIONER EBERT: I'd not heard that before. The other thing is the pump -out system. You mentioned you needed that because of state permitting. And I have kind of looked through the conditions, but I have had so much reading material available. I didn't see it in there. Is it under the special, the general, or the consent conditions for the pump -out? MR. HALL: I believe it was addressed in the conceptual permit from the -- from the Water Management District. CHAIRMAN STRAIN: I did find it. I can't remember which document it is. It may have been the submerged land lease, but there is a requirement for a sewage pump. I saw it in the documents I read. MR. HALL: Yeah. It could be in the submerged land lease document as well that it would be a requirement. But it's -- if I'm not mistaken, it may also be something that is asked for in the county code also. I don't remember where that may be. But with marina facilities I think that they talked about having sewage pump -out facilities as well. COMMISSIONER EBERT: Okay. And you mentioned you were going to use it like a vacuum cleaner. MR. HALL: I was trying to explain the use of it. It's on a cart. It's a mobile unit that you can bring out onto the dock, take to the boat, it pumps the material out of the boat into a storage area on the cart, and then you wheel the cart back, and they can be disposed of in -- you know, properly in the sewage treatment system. COMMISSIONER EBERT: Well, then why do you have a 313 - square -foot pump -out station here? MR. HALL: That's -- the labeling on that -- it says "pump -out station." It should say "pump -out storage." That's actually the storage, because there will also be the -- some of the emergency and safety equipment associated with the docks will also be stored in there. We'll be required to have protective booms in case there's -- a boat sinks or a fuel spill or something like that. All of that material associated with the operations of the dock will be in that little storage area. It's not a defined or -- that whole area is not a pump station. It's a -- basically a storage shed, and the pump -out cart and all of this other material will be stored in there. COMMISSIONER EBERT: Okay. Because on here it says "pump -out station." MR. HALL: I understand, yes, ma'am. COMMISSIONER EBERT: Okay, thank you. CHAIRMAN STRAIN: Is that all, Diane? COMMISSIONER EBERT: Yes. CHAIRMAN STRAIN: Phil, before you go -- well, is it pertaining to that, because we've got -- COMMISSIONER BROUGHAM: Yeah, go ahead. CHAIRMAN STRAIN: Okay, go ahead. No, Brad's going to defer to you. Go ahead. COMMISSIONER BROUGHAM: Just -- Tim, one follow -up. You said that the draft -- maximum draft has been reduced to two- and -a -half feet -- MR. HALL: Yes, sir. COMMISSIONER BROUGHAM: -- maximum? Has there been any modification to the length of the boat Page 25 of 94 March 1, 2012 or vessel? MR. HALL: No, the length -- well -- and I should explain that, too. The lengths that were permitted are 30 and 35 feet, and it's important to realize that that's length overall. That includes anything sticking out on the front of the boat and anything sticking out on the back of it. So when you're talking about hull length for a 35 -foot boat, you're probably going to be between 30 and 32 feet, because then you have the motors and swim platforms and whatever else they put on there. So it's that overall length from the very tip of whatever they have on there to the very back that is -- that's that 35 -foot. COMMISSIONER BROUGHAM: I guess where I was going is if you reduce the maximum draft by a half a foot, does that have any corresponding impact on the maximum length if you think -- MR. HALL: It won't -- it doesn't have any impact on the maximum length. That's still 35 feet. COMMISSIONER BROUGHAM: Okay. MR. HALL: It will -- it does have an impact on the types of vessels that could potentially use it, because there are some 32 -foot boats that draft more than two- and -a -half feet that won't be allowed there at that facility. COMMISSIONER BROUGHAM: So it's the more restrictive that's going to apply. MR. HALL: Yes, sir, absolutely. COMMISSIONER BROUGHAM: Okay, thank you. CHAIRMAN STRAIN: Okay. Anybody else have any questions? COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: Brad? COMMISSIONER SCHIFFER: Let me wait till they're focused. MR. HALL: Go ahead. COMMISSIONER SCHIFFER: Okay. Let's describe -- what's going to happen on the dock itself? What kind of amenities and stuff will you have down there? I mean, obviously you're going to have this cute little cart going around pumping out the sanitation system, so that's your sewage. You're going to have water lines? MR. HALL: There will be -- there will be water, electricity, and we'll also have to have some type of fire- suppression system out there as well. COMMISSIONER SCHIFFER: Which will probably be a stand pipe, which could be dry. MR. HALL: Correct. COMMISSIONER SCHIFFER: And then up at the pump house, you'll have a tank so you'll go do the rounds, and then you'll bring it up to that pump house and discharge it into that? MR. HALL: There's be a -- there'll be a hookup. And maybe in that pump house, if the people from the Conservancy and all, you know, have their way, it will actually be on the uplands outside of the walkway. It will be taken back to the actual uplands that are part of the common areas associated with the buildings. And the -- and the discharge will be done there. Their concern is having that discharge occur in an area over the preserve may not be a good idea. There'll be really three different levels of safety in terms of double wall pipes and containers and all to prevent that, but if that is something that comes up when we're doing the Site Development Plan, that may -- that that needs to be relocated, then we will probably end up doing so. COMMISSIONER SCHIFFER: Okay. The building that's out there on the end of the dock, the north end, how big is that building? MR. HALL: I believe it's -- yeah, I have a cross - section. It's 8 feet. COMMISSIONER SCHIFFER: Do you know the square footage of it? COMMISSIONER VONIER: It's listed. COMMISSIONER SCHIFFER: It is? MR. HALL: Yeah, I -- it's either 10 -- 10 diameter -- 10 -foot diameter or 12 -foot. COMMISSIONER SCHIFFER: Okay. All right. MR. HALL: Diameter. COMMISSIONER SCHIFFER: So it's not that big. MR. HALL: No, it's relatively small. COMMISSIONER SCHIFFER: Okay. The other thing, you mentioned that this has to be wider than 4 feet because the ADA has a requirement that docks are 5 feet. Page 26 of 94 March 1, 2012 MR. HALL: To provide -- to provide proper ADA access, they asked for 60 inches, which is 5 feet. COMMISSIONER SCHIFFER: Well, that's the turnaround dimension for ADA. MR. HALL: That's actually the dimension that I've had to do for the entire length of other walkways so that they can turn around at any point. COMMISSIONER SCHIFFER: Okay. Are you going to have lifts on all these docks? MR. HALL: The lifts are optional. So they -- it's up to the slip owners to whether or not they will or will not put them in. COMMISSIONER SCHIFFER: And if they do, they get the expectation of the canopy that goes with the lift. MR. HALL: No, no canopies. COMMISSIONER SCHIFFER: Is that somewhere restricted? MR. HALL: I can do it right now. COMMISSIONER SCHIFFER: Okay. So that's the end of the canopies. MR. HALL: Yeah. COMMISSIONER SCHIFFER: Let me see. The riprap, explain that concept a little bit to me. MR. HALL: The Water Management District had a concern. We are proposing some dredging on some of the boat slips at the end, and it's going to be, you know, where the previous -- again, where the previous seagrass surveys showed it, anywhere between about 5 and 12 feet away from -- I'm sorry -- about 10 to 15 feet away from the seagrass areas. So their concern was that if we did that dredging, that the bottom could slough a little bit and it could eat back or erode back into where those seagrass areas were. So the riprap was proposed to go along that cut to shore it up so that that sloughing didn't occur. But the riprap won't extend any further above the water than -- or above the bottom, sorry, than where the existing bottom elevation is now. COMMISSIONER SCHIFFER: Okay. Do the manatee access that seagrass? MR. HALL: They could. I wouldn't -- I have not seen manatees foraging there, but I haven't spent enough time to say one way or the other. The seagrasses are there occasionally. There are manatees in the waterway, and they could definitely go into that area. COMMISSIONER SCHIFFER: Okay. And then what is the length from the nearest roadway to the furthest dock on that? And the concern is if there's an emergency situation at that dock, and emergency, whatever that would be, pull up, how long a way do they have to go with, essentially, hand - pushed carts, correct? MR. HALL: The handed -push -- the main access walkway there can be done in a mobile cart or a golf cart. So from the little circular turnaround that you see out to the bottom end of the dock is a little over -- around 2,000 feet. COMMISSIONER SCHIFFER: And then back to the mainland, what do you think you have, another thousand? MR. HALL: To go from there, to go back to it, it's probably another 1,500. COMMISSIONER SCHIFFER: Okay. So, in other words, that furthest person with a heart attack is 4,500 feet away from the emergency vehicle? MR. HALL: I tried to put in additional boardwalks, and they were -- you know, they were eliminated through our permitting process. COMMISSIONER SCHIFFER: Okay. In the code -- and maybe Ray can also answer this -- it states that we're supposed to measure from the most restrictive of the following, and it says property line, and then obviously there's some other things, and then mean high -water line. So in this case, what does most restrictive mean? The property line, since it's claiming to be part of the residential, is quite a further distance away. So what does that clause mean? MR. BELLOWS: The clause in regard to measurement of the dock extension? COMMISSIONER SCHIFFER: Correct. MR. BELLOWS: It would be -- the mean high -water line would -- typically is used in measuring that, but if -- unless it is -- COMMISSIONER SCHIFFER: I'll read it again. It says, measurement is made from the most restrictive of the following -- and I'll list the two that apply here -- property line and mean high -water line. CHAIRMAN STRAIN: Wouldn't the property line in this case not be the parcel line that you're referring to Page 27 of 94 March 1, 2012 but the line that borders the PUD, the outside boundary line of the PUD? COMMISSIONER SCHIFFER: I don't know. CHAIRMAN STRAIN: I mean, I think it would be, which then you fall back on the next restrictive, which is related to the waterway, which would then be the mean high -water line, I would think. MR. BELLOWS: That's right. COMMISSIONER SCHIFFER: But I think the property line -- I would interpret it to go back to the residences that are -- this is an accessory to. CHAIRMAN STRAIN: Yeah. But -- COMMISSIONER SCHIFFER: And there is a defined line surrounding them, an ownership line, correct? CHAIRMAN STRAIN: But prior clarifications by staff and OIs written by staff look at the district boundary, the zoning district boundary. And I have those with me, so that would preclude looking at parcel boundaries in regards to the PUD. COMMISSIONER SCHIFFER: Then it would be the property line across the way, coming across the water to measure. That wouldn't make any sense. MR. BELLOWS: Obviously that won't work, so you take it from the mean high -water line from where the docks are coming. COMMISSIONER SCHIFFER: It would work if they put the docks across the way where, you know -- that might irritate somebody. MR. BELLOWS: The most restrictive point in this case is the mean high -water line. CHAIRMAN STRAIN: Is that your motion, Brad? COMMISSIONER SCHIFFER: No, no, but I don't think that -- I think, you know, this is a residential parcel, and they're claiming these are accessory to it, so I would take the dimension back to it. But that's not an important part of this application. Thank you. I'm done. CHAIRMAN STRAIN: Are there any other questions? COMMISSIONER VONIER: Yeah. CHAIRMAN STRAIN: Bill? COMMISSIONER VONIER: Do I understand you have changed the width of that from 6 feet to 5 feet? MR. HALL: We have agreed to do so, yes, sir. COMMISSIONER VONIER: And so it reduces the potential shading of any seagrass? MR. HALL: It reduces the overwater area, so yes. COMMISSIONER VONIER: Is it possible to consider grading for that entire dock area that -- from the walkway all the way out along the seagrass? MR. HALL: Well, if -- the issue with grading is usually used when the docks are actually over the seagrasses. The shading that you're concerned about with this dock being waterward of the seagrasses is more of the halo when the sun gets to a certain orientation where it's going to shine, so the grading won't really help in that effect unless you have the grading oriented towards where that sun is going to be. COMMISSIONER SCHIFFER: Mark, I just have one. CHAIRMAN STRAIN: Okay, sir, Bill's done. COMMISSIONER SCHIFFER: What are these docks going to be built out of, combustible material? MR. HALL: Probably, yes. COMMISSIONER SCHIFFER: Okay. So it -- you know, it makes that -- if a boat caught fire midway in the dock, it would make a pretty major -- and if you're a NASCAR fan, you realize it's amazing what can catch fire -- you know, that would be a major problem because the dock itself would be on fire by the time emergency vehicles could get there. MR. HALL: It's -- they're -- they are intending to have a security system in place out there. The docks will be monitored but, I mean, that's the case at any place that stores boats. It's -- if a fire occurs, it's going to take a while for the fire department to get there. COMMISSIONER SCHIFFER: But this is a very long dead -end. I mean, the design of this is not typical. Will there be staff out there at all times? MR. HALL: Like, 24 hours or -- there's not going to be anybody -- I would assume that there will not be Page 28 of 94 March 1, 2012 anybody there 24 hours, but there will be a dock master on staff that's in charge of taking care of the facility. COMMISSIONER SCHIFFER: And can people live aboard out there? MR. HALL: No live - aboards, no, sir. COMMISSIONER SCHIFFER: That's a restriction somewhere. MR. HALL: Yes, sir. COMMISSIONER SCHIFFER: You're making it now, or is it somewhere in the -- MR. HALL: No, that's actually in the lease. If nowhere else, it's definitely in the lease. MR. BELLOWS: For the record, Ray Bellows. It's also in the Land Development Code. It wouldn't be allowed. CHAIRMAN STRAIN: Anybody else have any questions on the boat docks at this time? Okay. I've got quite a few. We normally break at 11:45 for lunch, and we're still going to try to keep that schedule today, so I'll just cut off at a point if I'm not finished by then. I'm trying to think of the most organized way to start. Let's start with the hardest question. Your policy -- or our policies in both the GMP and the Land Development Code talk about a terminal platform area of a dock shall not exceed 160 square feet, and that does apply -- or the 160 square feet or that section of the code does apply to this particular dock application in regards to the staff recommendations and report. The discrepancy seems to be what we're calling the area that the boats are mooring against. You've called it repeatedly today a marginal dock. You are aware that the Florida Administrative Code and DEP have a definition for marginal dock, and I'll read it to you. Marginal docks -- well, DEP says, marginal docks may be placed within 10 feet of the riparian lines. Marginal docks are defined, Chapter 18- 21.003(29), Florida Administrative Code, as fixed or floating structures placed immediately contiguous and parallel to established seawall, bulkhead, or revetment. MR. HALL: That's incorrect. If you actually go to the definition section, 18- 21.003, the definition of marginal dock is a dock placed immediately adjacent and parallel to the shoreline or seawall, bulkhead, or revetment. CHAIRMAN STRAIN: So you're saying that the -- this is a marginal dock because it's parallel to a shoreline? MR. HALL: Yes, sir. CHAIRMAN STRAIN: Okay. Why isn't it a terminal platform? Because the definitions for terminal platform, it's the part of a dock that a boat can moor along and -- well, there's a series of those. MR. HALL: I can help you here. Again -- CHAIRMAN STRAIN: Okay. MR. HALL: -- if you go to the Florida Administrative Code -- CHAIRMAN STRAIN: I don't have it in front of me. MR. HALL: -- 18- 20.003, which is the definitions for the aquatic preserve portions, the terminal platform means that part of the dock or pier, including finger piers, that is connected to the access walkway, is located at the terminis of the facility, and is designed to secure and load or unload a vessel or conduct other water - dependent activities. CHAIRMAN STRAIN: Absolutely. So everything past the graded area of the uplands connection is a tenninal dock based on the activity you -- MR. HALL: No, sir. CHAIRMAN STRAIN: -- created by the dock boxes, the electrical, and the moorings. MR. HALL: Based on the fact that it has to be located at the terminus of the facility, if we were to have terminal platforms, there would be one at the north end and one at the south end, which is the terminus. The entire dock is the facility, and if it has to -- CHAIRMAN STRAIN: No. MR. HALL: -- be located at the terminus, then that's the north end and the south end. CHAIRMAN STRAIN: Okay. I believe that you have different purposes. You have an access walkway, which is also defined as that walkway which connects riparian owner's property to a terminal platform. Once you complete the exercise along the access walkway, which is only used for getting to and from the T at the end of that -- and then once you hit that, you're at an area that is being used for activity, which is part of the definition of a terminal platform, and that activity that you've chosen to put there -- and, by the way, this contradicts Page 29 of 94 March 1, 2012 some of the response to Bill -- you have dock boxes on one side of the walkway and you have boats moored on the other side. That entire area becomes a very active site. You have activity going across by boaters loading and unloading their passengers and their dock boxes. And all that becomes another reason why this is a terminal platform. Now, you can call it a terminal dock, but the function of it is still the same as a terminal platform. MR. HALL: And I won't disagree with you, but just because you have mooring at a facility does not mean it's a terminal platform. CHAIRMAN STRAIN: But just because you have a definition that says a terminal platform is to be limited to 160 square feet, and you take a duck and call it something different, even though it quacks and walks and sounds and looks like a duck, doesn't mean it isn't a duck. We have a terminal platform that -- we have a situation that meets the criteria of a platform. You can call it anything you want, Tim. I don't see how you get around that. And that does have a huge bearing on how this case will be discussed today, because I would think, then, that all of your parallel boats where that creates an accessway that's a terminal dock can't be there because of a 160 -foot limitation along that entire boardwalk. MR. HALL: If -- MR. YOVANOVICH: Let me try to -- he'll go next, but I want to clarify the discussion first. The portion of the walkway, 5 feet now -- CHAIRMAN STRAIN: Well, it was only 5.5 feet, by the way, to begin with, because a 6 foot measured to the center point of the pier. So they're only 6 inches less than the original one, but that doesn't include the 18 inches that you're going to add to cover the dock box. MR. YOVANOVICH: Hang on. But let's just talk about the portion that you walk on. CHAIRMAN STRAIN: Well, I just want to make sure Bill understands that -- MR. YOVANOVICH: I'm trying to focus on the issue, and I'm with you. Just one second, okay. Mr. Strain, give me a second. The portion that runs in the north/south direction -- and let's just call it 5 feet wide for purposes right now. Forget anything -- no dock boxes, no nothing, just if I have a long walkway, no dock boxes, you're telling me no parallel parking on that long portion because in your opinion it becomes a terminal dock. Now, the walkway that gets me to the finger piers, that's a nonissue because the finger piers themselves are the terminal dock. And as long as they are less than 160 square feet, we're okay. Is that -- CHAIRMAN STRAIN: So far yes. MR. YOVANOVICH: I'm just -- I'm trying to frame the issue. So in your opinion because we are now mooring boats along the parallel portion -- and I'm asking you the question, is it because they can stay for a long period of time, is that what's crossing the issue? Because a marginal wharf could be for a period of time. It just can't be overnight. Let's just use overnight. Is that the issue? Because then it becomes active, and then that portion becomes a terminal dock. CHAIRMAN STRAIN: A marginal wharf is a temporary facility for unloading and loading of passengers and/or equipment. MR. YOVANOVICH: I understand. CHAIRMAN STRAIN: So a permanent mooring generally wouldn't be there. MR. YOVANOVICH: I understand. CHAIRMAN STRAIN: You're going to be permanently mooring here. Now, how you do that by either lease or sale of a slip, regardless, that's where the activity portion of the dock lies. MR. YOVANOVICH: So we're talking about the parallel portion -- parallel parking, if you will, not the finger piers. CHAIRMAN STRAIN: Correct. MR. YOVANOVICH: Correct. CHAIRMAN STRAIN: I have no dispute on the finger piers in regards to that definition. MR. YOVANOVICH: I just wanted to focus the question. COMMISSIONER VONIER: Mark? CHAIRMAN STRAIN: Bill? Page 30 of 94 March 1, 2012 COMMISSIONER VONIER: I have a question relating to this. If five feet is necessary for the access pier along the -- along the mangroves, why isn't five foot required for the finger piers? How can you load -- if it's necessary for a turnaround -- COMMISSIONER EBERT: EPA. COMMISSIONER VONIER: -- if this is not a finger pier -- if this is not a terminal pier, the five foot, and the four foot is a loading pier, why isn't that five feet? MR. HALL: That's a good question. It's the way that the code reads the -- it's the walkways where people are going to be going back and forth that have to meet that. As you go off to the actual loading area for the boat, it can be less. COMMISSIONER VONIER: Well, that would imply that the long walkway is not a loading area. MR. HALL: It can -- it can serve both purposes. I mean, if -- trying to -- if you had a Christmas tree dock orientation where you're accessing here and going out on the dock and there are finger piers out there, you've got an access walkway, you have a terminal platform. This is the terminal platform. CHAIRMAN STRAIN: So are the other T sections down below it, because those are the active areas of the dock in between the two boats that are moored alongside of them. MR. HALL: That's not -- it's not at the terminus of the facility. If they look at that entire dock as the facility, it's only that platform that's at the end of it. CHAIRMAN STRAIN: What is the intent of limiting the square footage by calling something a terminal platform, whether you call it a marginal dock, terminal plat -- in this particular case? The intent is protection of seagrass beds; is it not? Because it only kicks in when you're closer than 10 feet. No, I want to see the dueling reporters. That's what -- I'm giving them the test. I want to see if the intent -- and I've pulled up -- I've read the Coastal Zone Management Plan, all several hundred pages of it. Fran Stallings did a report on seagrasses in 1992 that I've read thoroughly, and I've also read the various documents from DEP, and everything talks about damage to seagrasses from the restriction of sunlight. MR. HALL: It is. CHAIRMAN STRAIN: And the purpose of the 160 -foot limitation is -- only kicks in when you're within 10 feet of seagrasses, and that is to minimize the amount of shadow under the seagrasses. MR. HALL: The county code is if you're within 10 feet. With the state and the other agencies, that 160 -foot limitation is when you're over seagrasses. When you are impacting seagrass, you're limited to that. CHAIRMAN STRAIN: Right. And Policy 13.1.2 of our CCME says the county may adopt regulations to strengthen existing permitting programs. And based on the documents I read from Fran Stallings and the documents that I reviewed in the Coastal Zone Management Plan at the time all this language was added, it certainly seemed clear to me we were trying to make sure we had better protection of our natural resources than may be afforded by the state. MR. HALL: And that was because Fran was trying to account for those docks that went through the permitting process under the exemptions. CHAIRMAN STRAIN: Well -- MR. HALL: And that's the single- family docks where, if docks would go through and they're under 1,000 or 500 square feet, depending on where they're at, he was trying to make sure that the county had additional protections in place to cover those instances -- single - family instances where that was an issue. And I think I can point you to that. It says that the Florida Department of Environmental Regulation exempts private docks less than 1,000 square feet in area or 500 square feet in Outstanding Florida Waters of the state from dredge or fill permitting, Florida Administrative Code. The proposed LDC amendments will ensure that adverse impacts to this important resource are considered in the dock construction process. And then the -- required in order to slow degradation of the fragile -- and then he has a point in there about duplication of effort. And he says, again, the Florida Administrative Code provides standards and criteria for docking facilities in Florida aquatic preserves, and Florida Administrative Code 17.312.808, regulates construction of certain piers and associated structures. However, private, single- family docks less than 500 square feet in OFW or less than 1,000 square feet in Page 31 of 94 March 1, 2012 other waters and dock repairs projects are exempt from Florida Administrative Code conditions, and the standards for dock construction and aquatic preserve apply in Collier County only to those projects in Rookery Bay. Therefore, what he was proposing in this did not duplicate those efforts, and it was because it was aimed at looking at single - family docks that met the exemption criteria, not for all the other docks. MR. YOVANOVICH: And if I can, Commissioner Strain. CHAIRMAN STRAIN: Oh, I'm not done yet. MR. YOVANOVICH: I know, but to stay with that theme, above 13.1.2, there's Policy 13.1.1. CHAIRMAN STRAIN: Bill's read that to me many times, Bill Lorenz. MR. YOVANOVICH: And it says, there will be no unnecessary duplication of existing regional, state, and federal permitting programs. So that dovetails with -- the intent of this document was to create a program to regulate docks that were not previously regulated by the state. If there is a state program to address it, that's what applies. If there isn't a state program to address it, the county policy -- that's what the county policy was intended to do. CHAIRMAN STRAIN: Well, first of all, the staff recently opined on that, and they disagree with your conclusion, based on what I was told. Secondly, if you refer to Section 3.1.2 of the Manatee Protection Plan, it reads the following: Multi -slip dock facilities with 10 slips or more in all commercial marina facilities shall comply with the stipulations listed in the LDC. Those -- the guidelines for the construction of boathouses and docks are listed in LDC Section 2.6.21 and contain language for the protection of seagrass beds and other ethnic communities. See Section 2.3.2, and that's of the Manatee Protection Plan. 2.3.2 of the Manatee Protection Plan contains the same language that we've been talking about, limiting it to 160 square feet for a terminal platform. So I think clearly -- and this is after the document that you just read from -- when the Manatee Protection Plan was formulated, it intended to apply this to multi -slip docking facilities, because it says so in Section 3.2.1. And I just don't see any solution to that argument, Richard. I understand your position on it. If I was in your shoes, I'd argue the way you have, too. But at the same time, strict adherence to the code, I can't get to where you're going just by simply labeling the terminal platform something different to say it isn't a terminal platform. MR. YOVANOVICH: So we're in agreement that the finger piers are not an issue? CHAIRMAN STRAIN: So far I have no problem with finger piers. I'm going to hear the rest of the testimony today, but right now at this point, I don't see them as an issue regarding the terminal platform language. Now, let's move on. I think I kind of beat that one up. Tim, what are the total mangrove impacts? I think you said they're .14 acres. MR. HALL: Point 14. CHAIRMAN STRAIN: What are the total seagrass impacts? MR. HALL: Point -- well, again, I mean, right now there are none. CHAIRMAN STRAIN: Okay. What are the proposed total seagrass impacts that is outlined in the applications that went to the agencies which you got your permits? MR. HALL: I believe it was .02 acres. CHAIRMAN STRAIN: Okay. MR. HALL: Oh, .002. CHAIRMAN STRAIN: And if you add those two together, do you come with impacts greater than that allowed by the Manatee Protection Plan in regards to natural resource impacts? MR. HALL: No, sir. CHAIRMAN STRAIN: Okay. How do you figure? Because you're not counting the mangroves? MR. HALL: No. The mangroves -- I mean, under the Manatee Protection Plan the mangroves count. CHAIRMAN STRAIN: Okay. So how much is the total impact that you believe are allowed before you lose a position in the Manatee Protection Plan for being moderate to protect it? MR. HALL: It would be 5 percent of the mangrove area, which is more than, what, 5 -- if we got 100 acres of mangroves, it's 5 acres. CHAIRMAN STRAIN: And you -- and it's only 100 square feet of seagrass, correct? MR. HALL: Correct. Page 32 of 94 March 1, 2012 CHAIRMAN STRAIN: Your graded area, I believe, is about 85 square feet based on the percentage you just said. Well, what about the shading effect that's going to cause a loss to the fringe of seagrasses that was acknowledged in the permitting applications? I think it was 1 foot or something like that, 1.1 feet. MR. HALL: Those were -- we have to do -- we're supposed to do some monitoring -- post project monitoring to determine whether or not those impacts actually occur. CHAIRMAN STRAIN: So they're not impacts until you can prove they occur, but the proof of the occurrence is going to be monitoring. And I ve checked your other monitoring that's online at the portal for South Florida. Your seagrass studies or seagrass surveys generally aren't done at the peak of the seagrass season or when they flourish. They're either done at the very beginning or a couple times in the very latter part of the season. How do you -- when seagrass starts growing, do they just start growing in the beginning and pop up to their -- because originally you had 80 percent seagrass in that area, then you found none, then you came back and said there was 25 percent, then you came back and said it was, I think, sporadic and it's up to a certain width at an average. I think it was even 25 feet. Why don't you do these studies in the peak of the seagrass growing season instead of the extremes? MR. HALL: It's been -- I mean, it's just been timing of when we get out to do the surveys. There's no, you know, definite reason why one date or another. It's basically when we can get it scheduled. CHAIRMAN STRAIN: Would the most prolific occurrence of seagrass occur at the peak of their seasons or at the very beginning or at the very end? MR. HALL: It can occur at any time. I mean, the density of seagrasses, when they grow, is regulated by the conditions that are in place at that time. For this type -- the example I can give you for Pelican Bay for this type of seagrass, if you do these surveys early in the growing season, you will occasionally see this grass in Pelican Bay. If you wait until later in the growing season, it goes away. So you can -- the best way to do it is to vary the times of your surveys throughout the season to make sure that you can cover whenever it does or does not occur. And a lot of recent requirements that we have now, like in terms of monitoring dredge areas and so forth, DEP has been requiring twice a year so that they do get a little bit more coverage of that growing season. CHAIRMAN STRAIN: Based on the fact that your first survey showed up to 80 percent coverage in some parts of that seagrass area that's in question here today, would you believe that's a viable area for seagrass growth? MR. HALL: Is it a vi -- absolutely. I mean, we've seen grasses there before, so it's viable for growth. CHAIRMAN STRAIN: Okay. I'm going to roll through some of my questions from the document, and some are statements, a combination of both. I'm just throwing what I found as some interesting facts out. This area was platted up until 1998 for a series of upland construction similar to what's across the way at Surf Colony, I believe. The property was zoned through a zoning evaluation ordinance that actually granted it perpetual rights to build there from the zoning perspective as an RMF12 area. From what I can estimate based on acreage, there could have been close to 200 units there with almost over 3,000 feet of seawalled shoreline that would have had some right to boats and docks. So I understand that there is some rights that go with the property for docks in that location. I think that the fact that that -- that that plat was vacated in 1998 -- and, by the way, the plat is what provided the public with perpetual access to that waterway in the form of a public easement. What you're doing doesn't change that. What the state's doing doesn't change that. That easement is a platted easement to the benefit of the public forever. So the interesting thing about this is that condition that you see there was what could have occurred on this property prior to the Dunes project taking it over. And that's just simply to justify the dock --any docks at all from a perspective of what could be there and what couldn't. MR. HALL: Yeah. It was actually pointed out to me this morning that there's a 10 -foot dock shown all along that property line on that plat. CHAIRMAN STRAIN: The double line? One of the notes I see consistently on your renderings is the seagrass beds are dynamic in nature, and the exact footprint will be determined prior to the issuance of the local building permit. Page 33 of 94 March 1, 2012 Now, how will that weigh in on what we're being told is your building -- your boat dock application today? Are you suggesting by that that you're going -- you can move the docks around much? Or what is it you're trying to say with that notation on each one of your plans? MR. HALL: I don't think we have the leeway to move the docks around any. But the -- I mean, what you're being asked to render a decision on is the maximum number of 49 and the place where they could go in terms of the protrusion from the shoreline. CHAIRMAN STRAIN: Right. But we're also looking at the effect on the seagrass beds, because it's one of the criteria, and it's a very important aspect of all of our CCME and other documents. So if you're going -- if your intention by that notice is to tell us you're going to move it if you go out there and find no seagrass beds, I'd like to know that now. MR. YOVANOVICH: The location is fixed. The question of whether or not seagrasses exist is really determined at the time you pull a building permit. CHAIRMAN STRAIN: Okay. But then why do you need to have the clause in there that the footprint is going to -- could possibly be changed? MR. YOVANOVICH: Because it could be that it results from, at the building permit stage -- remember, we disagree with the terminal platform analysis. So the intent of that was, is we still, at the time of the building permit, are going to have to live with the Land Development Code and the Growth Management Plan, so that could result in a change to the dock configuration lesser, if you will, not greater or have it move. CHAIRMAN STRAIN: Lesser dock configuration. MR. YOVANOVICH: Well, again -- CHAIRMAN STRAIN: I mean, you've got me puzzled by the meaning of that. And I don't want to -- if we go through this today and something comes out that provides any acceptance of this, I certainly don't want that phraseology to be construed to allow random changes to these docks, and I'm concerned about that. MR. YOVANOVICH: The resolution that is in front of you -all today says we have to comply with all of the criteria you have just mentioned. The terminal dock cannot exceed 160 square feet, okay? So we're going to live with that, and that will depend on when we go pull the building permit. If there are no seagrasses there at the time we pull the building permit, then that Growth Management Plan provision does not apply, right? We all agree. CHAIRMAN STRAIN: No. If your terminal -- if your dock is 10 feet away from seagrasses -- MR. YOVANOVICH: If there are no seagrasses -- CHAIRMAN STRAIN: Then -- MR. YOVANOVICH: -- and we are more than 10 feet away -- CHAIRMAN STRAIN: You're right, it doesn't apply. MR. YOVANOVICH: -- then it doesn't apply. CHAIRMAN STRAIN: I agree with you, it doesn't apply. MR. YOVANOVICH: But that provision's in there that if we are within 10 feet of a seagrass at the time we pull a building permit, we've got to meet the 160 feet. CHAIRMAN STRAIN: That's fine. MR. YOVANOVICH: So you're covered in the resolution. You're covered in the resolution. CHAIRMAN STRAIN: I just want to make sure your intention was not to change the configuration of the docks from what's being discussed today. MR. YOVANOVICH: No. MS. ASHTON- CICKO: Well, the configuration of the docks is going to be what's set forth in your exhibits, okay. So in some areas it's larger. If it's, you know, within 10 feet of the seagrasses, then they have to cut down to the smaller five -- 4 or 5 feet and the 160 feet limitation between the -- CHAIRMAN STRAIN: You're kind of hitting on the point that concerns me. MS. ASHTON-CICKO: -- platform. CHAIRMAN STRAIN: If the seagrasses are by survey and everybody says, oops, they're going away, and you now don't have them within 10 feet, so now the dock -- the docks that couldn't be there because of the parallel mooring of the limitation of the -- calling it a terminal platform or marginal dock, whatever, goes away, then all of a Page 34 of 94 March 1, 2012 sudden all those moorings happen. And Id like to know -- before today's over, I'd like to know what your intent was with that. MR. YOVANOVICH: Okay. CHAIRMAN STRAIN: That's all. Now, there's something else, too, because in your document -- and this could get longer than we're going to have -- in fact, this is going to be a long one. We'll wait. We'll take a break, and we'll come back at quarter of one, and we'll resume where we just left off. (A luncheon recess was had.) CHAIRMAN STRAIN: Okay, everybody. I'd ask you to quiet down and please take your seats. We are late. And Mr. Yovanovich needs all the time he can get, so we need to move forward as fast as we can. But there has been a change. During the lunch break, Mr. Pires approached me and said he is having to leave early. He wanted to at least make his comments, before he left, when we got back from break, and I said that would be fine as long as there was no objections from the applicant. And, Richard, for the record, do you have any objection taking Tony out of sequence? MR. YOVANOVICH: How long is he going to talk? I don't care. Go ahead. CHAIRMAN STRAIN: Let the record show that Richard said he didn't care. So, Tony, you have -- let's see. It's 12:46. How about to 12:50; does that work? MR. PIRES: Tomorrow morning? I'll watch how they do the filibuster at the Senate. Thank you very much, Mr. Chairman, Members of the Planning Commission and, Rich, thank you for the professional consideration. Unfortunately, I have a long- committed meeting set for this afternoon up in Fort Myers, so I have to leave here at two o'clock. So thank you. I initially want to say that I appreciate the opportunity to be here to be able to raise some issues, and we think there needs to be some additional hearings as outlined in my materials. I represent, as indicated in my correspondence, the Vanderbilt Beach Residents Association, Inc., and a number of other residents listed on the correspondence that I provided to you -all. And I know you've seen quite a few resident people here today. Some will speak, some will not, but I think you understand that the overwhelming majority, if not all of them, are in opposition to this for well- founded reasons that I believe you will hear this afternoon. Also, Ms. Gundlach presented to you or waved at you the pink- and -white stack of 200 petitions in favor of this project, and I believe they are all from the Dunes residents that appeared, just a quick glance at it. And then I'm sure that -- once again, I think what's important is to understand the basis for any support or objection, and so I think it's important to note that back in April of 2011 there was a settlement agreement between the Dunes of Naples Property Owners Association, Inc., and Vanderbilt Partners I1, LTD, where a number of issues were resolved involving construction issues with the project, but also there was a specific section referenced at Page 4 of that document -- I'll leave this document with the court reporter. It says marina. The developer has permits and other authorizations from all applicable governmental and quasi - governmental authorities other than Collier County to construct a 49 wet slip marina. Marina. Now today it's a dock facility, but I guess it's a marina at the time of this agreement. When the developer applies to Collier County, for this approval, the board of the directors of the association shall, in good faith, support and encourage all of its members to support the developer's application to construct up to 49 wet slips within the marina area, including encouraging attendance at public meetings at Collier County. With regards to the first matter, which is the insubstantial change as outlined in my letter in the attached materials, it's our position that the proposed change to the master plan is, in fact, a substantial change which requires a more detailed public hearing process, more rigorous review, in consideration of review by you -all as a Planning Commission and a recommendation and final decision by the Board of County Commissioners. Now, we've heard enough discussion today with regards to whether or not the docks are permitted uses within this particular area, just this waterway area of the PUD. And so we object to the consideration by the Planning Commission of this matter as an insubstantial change and request that you make a determination that it is, in fact, the substantial change that's being requested. We also object to any consideration in this application, because we believe that the title owner of the property Page 35 of 94 March 1, 2012 involved is not here today and has not signed the application, that being the board of trustees of the Internal Improvement Trust Fund of the State of Florida. And I'll get to that in a little bit, because the -- you've heard some discussion about quitclaim deeds. Well, with regards to the -- you know, I'll do that matter first. There's a discussion that has been referencing that the developer, as a condition of the permit from South Florida Water Management District and from the submerged land lease, will quitclaim title to that channel to the State of Florida to resolve any dispute that may exist. Now, a quitclaim deed conveys what you own. If you don't own anything, you don't give anything. If you have good title, you give good title. But as outlined in my letter, one of the conditions that they agreed to as part of this was they acknowledged that the State of Florida owns that land, and I attached it as an exhibit to my correspondence. So at the first instance we would submit that they don't -- this application should not be in front of you because the State of Florida is the true titleholder, and that's attached to my correspondence as Exhibit K. Where the applicant, Vanderbilt Partners lI, LTD, states, grantee -- they're the grantee under the submerged land lease -- agrees that all title and interests to all lands lying below the historical mean high -water line or ordinary high -water line are vested in the board -- that's the board of trustees of the Internal Improvement Trust Fund, the State of Florida -- and shall make no claim of title or interest in said lands by reason of the occupancy or use thereof. But the first instance they agreed that all title's vested in the state. So, again, our position is they do not -- the applicant does not have the authority to have submitted and to have its application heard. I've outlined in my letter the various concerns we have with how this process has been slapped dashed, slapped along. And I won't go into any greater detail, but it seems as if the process of having this reviewed and considered has been ceded to the developer as opposed to looking out for the public interest. It's been more inclined towards the developer /applicant's interest at the public's expense. With regards to the issue as to whether or not the docks are permitted uses, we were -- we would assert that at the present time docks are not any permitted use in this waterway area of the Dunes PUD and, therefore, by adding docks on the master plan, you are adding a use, an intensity of use not originally provided for and, therefore, it's a substantial change under the Land Development Code. We heard discussion about how this property was originally zoned, and part of the transcript of the November 14, 2000, County Commission meeting when the Ordinance 2000 -74 PUD was adopted by the Board of County Commissioners, it referenced -- one of the staff members referenced that this property used to be zoned RMF 12. And if you recall the graphic that was provided in the applicant's presentation that showed how it was originally platted with the lot and land coming right up to the channel, that was zoned RMF 12 abutting the channel. The residential was abutting the waterway. The master plan, as approved in'98 and then again in 2000, has the residential hundreds of feet away from the waterway. There is a preserve district in between the residential development area as described in the PUD and outlined in the master plan and the waterway. And the language in the PUD provides that, you know, the docks are accessory to the residential development area. It doesn't say it's accessory to the residential development, the residential development area, which is a defined area on the master plan, and that's where all the high -rises are. So we would submit to you that docks are not a permitted use today in that area. They're a permitted use in the residential area. And, quite frankly, whatever discussion occurred at the Board of County Commissioners in 2000, if it was not included in the PUD, has no force and effect. It was a discussion. It was a chat. And so, once again, we would submit that the docks being added to the master plan are an additional use and intensification of use that does not exist today. Your discussion with Mr. Yovanovich said that he went back and looked at the PUD and found the language that said accessory uses include recreational uses and that's allowed throughout the whole PUD. And I think Mr. Bellows indicated that the county staff treats docks and recreational facilities differently as accessory uses. I think that's borne out in the residential zoning districts and the traditional zoning districts of the Land Development Code in Section 2.03.02. There are 2.03.02(A), (B, (C), (D), (E), (F), and (G). Those are the residential zoning districts: Single- family, multifamily, multifamily, multifamily, residential tourist, village residential, and mobile home. In each and every instance, they list the permitted uses, and then they have the categories of accessory uses. And there are two -- there are different categories of accessory uses, and docks -- private docks and boathouses are always listed Page 36 of 94 March 1, 2012 separately, and there's always a separate listing for recreational facilities. And I have copies of this to provide to you, hand out. So I would submit to you that they are separate and distinct uses, that recreational facilities are not, per se, dock facilities. And if they meant to say dock facilities, they would have said it like they said in the residential development area of the PUD that docks are accessory uses in the residential development area. So, again, we would submit to you that the proposed changes are a substantial change because they're neither referenced or listed in Section 210 of the Dunes PUD, they're not listed as permitted uses in the preserve district, they're not listed as permitted uses in the easement -- conservation easement, waterway, manmade waterway area, and they're only listed as permitted accessory uses solely in the defined residential development areas as outlined in Section 3.4.2 of the PUD. And, again, another factor that we believe is -- leans towards the conclusion that docks are not accessory uses -- permitted uses in this instance, not permitted uses in that waterway. They were not referenced in an EIS in 1999 that was utilized as part of the 2000 rezone amendment in restating and repealing. I submitted that as Page -- Exhibit J to the correspondence I've provided. And it talks about impacts of the boardwalk. It talks about impacts of the high -rises. It talks about impact of the multifamily. It talks about impact of the gazebo. It does not talk about impact of any docks. It does not talk about boating facilities at all. So I would submit to you that whether they made a mistake, that's their mistake. It is not included in the PUD. There was a general kind of discussion before the County Commission. And we would submit to you that adding it by virtue of this process is a substantial change to the master plan as an intensity of land uses. And I recognize that they've taken off the table the idea of reducing the acreage of the conservation area by five acres in trying to take that substantial change off the table. But what's disconcerting, again, is this process, because there's different applications with different dates but no re- submittals, that the advertisement occurred before the application hit the door. I'm not aware of any other project in Collier County where the application was advertised, notice sent out to people of a public hearing before the application came in the door. And, again, that's disconcerting. It may not have any bearing on you -all's consideration of this, but I just think it's a process I hope we would not utilize in the future, because the public is not well served, and it does cede control of the process to the developer. With regards to the -- bear with me. Just a few other particular points on the insubstantial change. We're not saying it's inconsistent use. We're just saying it's not a permitted use. Pure and simple. The area that they want to build the docks in is not a residential development area under the PUD, and it's not a residential district. With regards to the boat dock extension request, I appreciate Tim's kind words about my letter, but as far as the issues involving the Conservation and Coastal Management Element, the Manatee Protection Plan, and those other aspects, as you note from my correspondence when you have an opportunity to review it, I incorporated the materials and the explanation and position of the Conservancy as outlined in Nicole Johnson's letter of January -- February 27, 2012. She articulated it very well. I won't belabor or elaborate a lot of those points because Nicole will handle those in a more detailed fashion when she has an opportunity to speak before you -all. But, again, we concurred with the Conservancy, that based upon the language in the Collier County Growth Management Plan, that this particular facility is inconsistent with the Growth Management Plan. And, therefore, it should be denied. Now, one area I need to address with regards to one aspect is the language that's in my correspondence with regards to the fact that they have not provided a fiscal analysis. Section 10. 1.6 of the Conservation Coastal Management Element is very clear. This is all new marinas -- and it's not a marina -- but all new marinas water - dependent and water- related uses -- and this is a water - dependent and water - related uses. You don't have a boat dock without water -- that are proposed to destroy viable naturally functioning marine wetland shall be required to perform a fiscal analysis in order to demonstrate the public benefit -- key component -- demonstrate the public benefit and financial feasibility of the proposed development. Now, Mr. Hall said, we are taking care of that because while we're destroying some, we're mitigating, so we're making South Florida and DEP happy. The Comp Plan doesn't say all new marinas water - dependent and water - related uses that are proposed to destroy viable naturally functioning marine wetlands except for those who are Page 37 of 94 March 1, 2012 mitigating and making up for it elsewhere. It's very clear, very black and white. And they have not provided that fiscal analysis. They've not shown or demonstrated the public benefit. And, again, on that basis it's inconsistent with the Comprehensive Plan. One other aspect they're inconsistent with, the facility has been focused on being solely for the residents of the Dunes; we understand that. But Policy 10.1.5 says, marinas and water - dependent water - related uses that propose to destroy wetlands shall provide for general public use. Again, we have, again, an application that's been zipping through the system. We believe in addition to the areas and elements that were pointed out in the Conservancy letter, which we adopt and incorporate in their entirety, we have this other issue, the application is deficient for not providing that necessary fiscal analysis. One other aspect from an -- I guess you'd call it highly technical, but I need to raise it. All the letter -- objections of my letter are being preserved -- is I have -- going through the files, I have a difficult time finding out who is on first as far as the applications. And no disrespect to anybody, but on this boat dock extension application, there was one signed by a Keith Sharp on the front page, the one indicated the applicant was Vanderbilt Partners II. The one with Vanderbilt Partners II didn't have a box marked for boat dock extension -- for boathouse, I mean. The one signed -- that Keith Sharp's on the front said boathouse. And then I recently received a page saying the February 2012 application for the boat dock extension has the boathouse marked. But none of them are dated, and it's very confusing. And then, I guess, to compound it is the legal notice for you -all's hearing of February 16th, which was continued to today, they're not advertising the boathouse. It said, boat dock extension. So, again, we have some legal deficiencies. If you -all decide to go forward on that boat dock extension application, I would submit you cannot even consider the boathouse, which is that fishing pier that's roofed, and it's a boathouse because of that. Again, we've gone through, and you'll hear a number of the residents. They will speak better to the issues about failure to achieve the requisite number of primary criteria and secondary criteria. I briefly outlined what I believe you will hear, and I will leave it to the residents and those who are familiar with the area to provide that testimony that, at a minimum, it is our position that the following primary criteria have not been met: 5.03.06.H. 1.C, as we believe the proposed dock facilities will have an adverse impact on navigation within the adjacent navigable channel; you've already heard Mr. Hall concede that they've not met the criteria in 5.03.06.H. 1.D, as the proposed dock facility protrudes more than 25 percent of the width of the waterway; and we also assert that it does not meet the criteria, primary criteria, Section 5.03.06.H.1.E. And as the secondary criteria, we believe three of those have not been achieved: 5.03.06.H.2.D, as the proposed facility would have a major impact on the waterfront view of neighboring waterfront properties. Now, on that point Mr. Hall said, well, you know, riparian -- the only -- as the riparian law in the State of Florida says, you only have a view to the middle of the channel. We're talking about the Collier County Land Development Code, and we could be more restrictive and more protective of the rights of our property owners and our residents in this community. And I believe you heard testimony that the proposed facility will have a major impact on the waterfront view of neighboring waterfront properties owners. We believe it does not meet the criteria either of 5.03.06.H.2.E, as seagrass beds are located within 200 feet of the proposed dock facility and will be impacted, and then we also believe it does not meet the criteria, secondary criteria, of 5.03.06.H.2.F, as the facility is subject to but not in compliance with the manatee protection requirements of Section 5.03.06.E.11. And you will hear, again, Nicole Johnson, elaborate in more detail on that particular matter. For all the foregoing, we would request and submit that, first of all, the PDI be treated not as an insubstantial change, but rejected and say it has to come back as a substantial change and, therefore, really should have no necessity done of even hearing the boat dock extension because it wouldn't be allowed, but if you find that the request for the change in the master plan is insubstantial, we request that you deny the boat dock extension as submitted for the reasons that we've articulated. CHAIRMAN STRAIN: Tony, thank you. MR. PIKES: Thank you. CHAIRMAN STRAIN: And the extra time that you've had is an acknowledgment that you do represent a large group of people here today, and so that's why the exception was made in time format. Page 38 of 94 March 1, 2012 Let's see if there's any questions. Is there any questions of Tony at this point? COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: Go ahead, Brad. COMMISSIONER SCHIFFER: Tony, when the original plat was shown today -- and tbafs the first time I've certainly seen it -- there was a comment made that there was an easement given to everybody to use that channel. MR. PIKES: Yeah. I'm not familiar with that. COMMISSIONER SCHIFFER: Okay. MR. PIKES: But then Mr. Yovanovich or Tim, I think, indicated that that plat was subsequently vacated, or Mr. Strain did. CHAIRMAN STRAIN: No. It was vacated with the exception of that reference. And I have the documents to prove that. MR. PIKES: Okay. I've not reviewed the vacation, so -- COMMISSIONER SCHIFFER: Then the question is, would that allow them to build a boat dock in that easement? MR. PIKES: I go back to what the PUD says. hi my opinion, the PUD does not provide for the ability to have a dock in that area. It's not an allowed use, and that's what they're asking for. It's an intensification of use. If that's going to be granted, it needs to go back through a substantial change to the PUD. COMMISSIONER SCHIFFER: But my question -- and I agree with that. But my question is that based on the fact that there's an easement, wouldn't you be allowed legally to build into that easement, essentially blocking some of that easement? MR. PIRES: No. I think the fact that you may have an easement for a particular use, that's different than a land use. You know, you may have -- you may be granted an easement, but if (sic) it's inconsistent with the land use regulation. And, recall, the PUD was an application that they made. CHAIRMAN STRAIN: Tony, I can read this for the record. MR. PIKES: Okay. CHAIRMAN STRAIN: It may help Brad's situation. The dedication on the plat, the one item that did remain on the plat, know all men by these presence that Florida Development Corporation, owner of the herein described lands, by its undersigned president, Harold J. Baker and Secretary Richard Baker, has caused to be made this plat entitled "Wiggins Pass Landings No. 1," does hereby dedicate the streets, easements, and waterways as shown on the attached plat to perpetual use of the public for proper purposes and uses shown therein. MR. PIKES: Yeah. I would concede it allows people to travel to and fro on it like you would a street but, again, having the public granted an easement over roadway doesn't authorize people to put garages in the roadway. COMMISSIONER SCHIFFER: Thank you. MR. PIKES: Yeah. What I also have is sort of a two -page summary of the boat dock extension summary, and a three -page summary as to the PDI, if I can -- should I give them to Ray to hand out, pass out? CHAIRMAN STRAIN: Yeah, at break we -- do you need them for this discussion, or is there something we're supposed to be reading? MR. PIRES: No, just as you all are discussing and deliberating the matter. CHAIRMAN STRAIN: We can pass them out during the break. Ray will take them for now. MR. PIKES: Thank you. And thank you for the consideration of allowing me to go out of turn. And, Rich, again, thank you for that. CHAIRMAN STRAIN: No problem. Thank you. Appreciate the input. MR. PIRES: Thank you. CHAIRMAN STRAIN: As a follow -up with the county attorney. COMMISSIONER SCHIFFER: Anybody know how to whistle? CHAIRMAN STRAIN: No, I don't want to whistle in this mike. Heidi, I have a question on something Tony said. I want to make sure the record's clear on it. Did you review the ownership rights of the property to confirm that the applicant is the right person holding the ownership of the property to request the PUD change on the boat dock? MS. ASHTON- CICKO: Yes. I'm satisfied that the applicant, Vanderbilt Partners, is the appropriate entity Page 39 of 94 March 1, 2012 and that any consent, if any, needed from the State of Florida, if they have any interest in it, has been provided through the granting of the permits. CHAIRMAN STRAIN: Okay, thank you. Anybody else have any questions or comments on Tony's discussion? If not, we'll move back to where we left off before. MR. YOVANOVICH: Can I follow up on something Tony just said? CHAIRMAN STRAIN: Sure, go ahead. MR. YOVANOVICH: Ray, can you -- I circled the plat that Mr. Strain just read from, and included in the rights that are on that plat, it says, 10 -foot wide docking area which is adjacent to the water. That was vacated. It's in the waterway. The waterway remained public, and we're part of the public. I just want people to understand that included in that plat was always the intent that there were going to be docks in that area from a historical standpoint. The PUD also dealt with that issue. I'm not saying that -- I'm just saying that that's the -- let's put this in perspective. And I want to respond directly to Tony's -- has he already left? MR. PIRES: No. MR. YOVANOVICH: -- his allegations that the public doesn't know what's going on. CHAIRMAN STRAIN: Before you go there, let's -- your first statement about that particular reference to the docking area, the two arrows that show the 10 foot go from the property line that's part of the lot, inside not outside. So you claim that it was part of the waterway. Are you sure that that's part of the waterway by having tracked the legal description of the waterway? MR. YOVANOVICH: What I'm saying is it's clearly adjacent to the waterway. CHAIRMAN STRAIN: That's a different word then, okay. MR. YOVANOVICH: And I will have to go look at the title to figure out exactly where that line is because, clearly, there's no seawall built that was originally contemplated. I say that for purpose of the public there was always the intention that there were going to be docks in this manmade waterway, so this is nothing new since at least the date of that plat that there were going to be docks there. CHAIRMAN STRAIN: Okay. I just -- your statement, though, has a bearing. I wanted to make sure it was clear that -- I don't see how that 10 foot shown here is inside the waterway. On this plan it's shown outside the waterway. MR. YOVANOVICH: I don't know -- CHAIRMAN STRAIN: I have not tracked the legal description that carefully, but I did track it earlier. I just didn't look for this point. MR. YOVANOVICH: I have not either -- CHAIRMAN STRAIN: Okay. MR. YOVANOVICH: -- but my point is this is always intended to be parallel to that -- parallel -- parallel to the other side of the water. It was always intended to be a line of docks. So for anybody to come in here and say they never thought their view of docks was ever going to be taken away, that's, in fact -- I don't know who that is. I don't think it's me. CHAIRMAN STRAIN: I don't know what it is. COMMISSIONER KLEIN: It's been going on for more than just this session. CHAIRMAN STRAIN: Melissa has a question of you, Rich, before you move forward. COMMISSIONER AHERN: Rich, when was this platted? MR. YOVANOVICH: Seventy- three, I think it is. Let me put my eyes back on. COMMISSIONER AHERN: The reason I'm bringing it up is -- MR. YOVANOVICH: 1970. COMMISSIONER Al ERN: -- in all likelihood, in '73 there weren't as many requirements in terms of permits. So putting the dock where it's shown probably wouldn't have been a problem. MR. YOVANOVICH: Correct. And to -- I almost -- I -- to now claim -- and I know what Heidi said, and I agree 100 percent what she said about the ownership -- but to come in here now and say that every application for a dock that's in water needs to have whoever the rightful owner is, the waters in all those canals are waters of the United States. Are you going to make them join in, the United States join in on every application for a building permit for a dock? Page 40 of 94 March 1, 2012 CHAIRMAN STRAIN: This is Collier County, yes. MR. YOVANOVICH: Okay. That's fine. Honestly, I was shocked -- I was shocked to hear -- to hear that that's the basis for why we shouldn't be here today was you don't have the rightful owner in front of you. I wanted to make sure I could respond to that in front of -- in front of Mr. Pires, because I just thought that that was, you know, quite an aggressive stance to take on why we shouldn't be here today. And I will address all the public comments, but in response -- I wanted to respond to Mr. Pires while he was actually here. CHAIRMAN STRAIN: Okay. Is there more you want to continue on? MR. YOVANOVICH: No, I'm ready -- we're ready to answer any more questions or wherever we left off. CHAIRMAN STRAIN: I left off with me, but, Brad, did you have something? COMMISSIONER SCHIFFER: Question on this plat. Rich, could you slide it over and give us the width of the waterway that this represents. CHAIRMAN STRAIN: I believe it was 250 feet. MR. YOVANOVICH: Two hundred fifty feet, and that's kind of what it is. I think the real world is closer tc that. COMMISSIONER SCHIFFER: And where would 250 feet be today? Would it be -- which side of your docks? CHAIRMAN STRAIN: Their docks are within the 250 feet, because their docks go to 249 right now. So there's about a foot change in the -- MR. YOVANOVICH: We're in that 250 -foot range. We're within the area where the docks were going to be. COMMISSIONER SCHIFFER: But your docks are into the 250 feet? MR. YOVANOVICH: We're within the 250 feet, I believe, yes. CHAIRMAN STRAIN: Yes, you are. COMMISSIONER SCHIFFER: All right. CHAIRMAN STRAIN: Okay. COMMISSIONER SCHIFFER: All right. Yeah, thanks. CHAIRMAN STRAIN: Melissa, did you have something else? COMMISSIONER AHERN: Can we go back to that plat, Ray? Can you zoom into the bottom left? It looked like there was something with a -- okay. So it looked like it showed seawall, seawall line, and then the dock between the seawall and the lot line. MR. YOVANOVICH: Yeah, it is -- I mean -- COMMISSIONER AHERN: Okay, thank you. MR. YOVANOVICH: It looks like the docks would have been within the water, and the seawall is, whatever direction that is, east, I believe it is. So I believe the width of that waterway -- I don't know where it was measured to, to be honest. CHAIRMAN STRAIN: The 250, you might look on the north end. I think there's another reference to the 250. It certainly would be with the property line, though, Rich. MR. YOVANOVIC14: Yeah. I mean, I know the docks would have been in the water by that description. Whether it would have been in the property line, I don't know. But, I mean, I haven't gone back to figure out the exact vacation. CHAIRMAN STRAIN: They'd be out in the water. COMMISSIONER EBERT: 1 have a question. CHAIRMAN STRAIN: Are you finished? COMMISSIONER AHERN: Yes. CHAIRMAN STRAIN: Okay. Go ahead, Diane. COMMISSIONER EBERT: Were these lots originally going to be single -- single - family, it looks like here? MR. YOVANOVICH: I believe they were multi - family -- CHAIRMAN STRAIN: RMF 12. MR. YOVANOVICH: -- for purposes of -- we brought -- remember when we did the 2008 and the 1998 -- and I don't remember which one it was -- but they came into and were rezoned to the PUD, so the actual density went down from what could have been there. And I would say that clearly that was the public benefit that was received by Page 41 of 94 March 1, 2012 the PUD process together with getting all that nice preserve land for nothing. So I would -- I would submit that there's plenty of public benefit related to the rezone and the boat dock petition. But I'm -- we're ready -- I just wanted to respond mainly to the ownership comment from Tony. But we're ready to answer any -- continue to answer questions you may have on our petition itself, and then we'll respond to the public as the public speaks. CHAIRMAN STRAIN: Okay. Is everybody done? Okay. COMMISSIONER EBERT: Uh -huh. CHAIRMAN STRAIN: Okay. Rich, the staff recommendations. On Pages 12 and 13 of the staff report, are you in agreement with those recommendations? MR. YOVANOVICH: Give me a second, please. I believe the resolution that included it says that we give the -- we give the conservation easement at building permit, and we're agreeable to what's actually attached to the resolution. CHAIRMAN STRAIN: How does that differ than -- from No. 1 then? MR. YOVANOVICH: I thought it says within 30 days. CHAIRMAN STRAIN: But it says, shall be recorded in the public records of Collier County at time of building permit application free and clear of all liens and encumbrances. MR. YOVANOVICH: Oh, I thought it -- I may be reading it wrong. I saw within 30 days of the adoption of this resolution in No. 1. 1 may be reading it wrong. CHAIRMAN STRAIN: You're on Page 12 of the -- MR. YOVANOVICH: And maybe I have an older staff report, so -- could be. CHAIRMAN STRAIN: Well, I don't know. Then let's find out what the right one is, because we better all be reading off the same page. Because when we ask you to agree to things, if you're agreeing to things, I'd like to know they're all the same things. Mine is dated February 22, 2012. What is your date? MR. YOVANOVICH: That's the confusion. Mine said February 17th. CHAIRMAN STRAIN: Okay. MR. YOVANOVICH: So, yes, we're -- if it says building permit, yep, we're fine with that one. CHAIRMAN STRAIN: Okay. That's the one I want to focus on right now. The attachment -- and they said in the recommendation it was attached to Exhibit D. When you go to Exhibit D, the standard conservation easement has a reference in section -- on Page 2, 2B, that says, uses permitted by Section 3.05.07.H of the Collier County Land Development Code. When you pull that section of the Collier County Land Development Code, it talks about the allowable uses within county required preserves. "I," the following passive uses are allowed within the preserves. It talks about boardwalks, but it says, minimum width for shared use paths for use by golf carts, trams, bicycles, joggers, et cetera, is 10 feet. How do you not have that apply to you? Because you are using trams or something because you need turn- around areas for golf carts or something on that; is that correct? MR. YOVANOVICH: Yes. CHAIRMAN STRAIN: So the standard conservation easement appears it may require you to be 10 feet. Is that -- do you see why you wouldn't be? MR. YOVANOVICH: Are we -- how wide are we? We're 8 feet, and I would -- CHAIRMAN STRAIN: Right. MR. YOVANOVICH: Right. So I would understand that probably to be a maximum of 10 feet. CHAIRMAN STRAIN: Well, it doesn't state that. MR. YOVANOVICH: I don't have that provision right in front of me. CHAIRMAN STRAIN: It says minimum widths. So it's not a maximum. The maximum is 12. Widths greater than 12 feet may be allowed, but then you've got to -- then there's -- only if they serve as fire breaks. Minimum widths for shared use paths for use by golf carts, trams, bicycles, joggers, et cetera, is 10 feet. And since you're going to be using it for more than just pedestrians, because I think that's why you have turnarounds, how do you not fit that need? And that's in the standard conservation easement that's consistent with the reference in the code. Page 42 of 94 March 1, 2012 MR. YOVANOVICH: I'll need to look at that, Mr. Strain. I need to pull that up. CHAIRMAN STRAIN: Okay. Well, it's important when -- before the hearing's over that you come back with some kind of analysis on there, let us know what you're -- then further on down there's two items here -- since you've got other people here who could be looking at things. MR. YOVANOVICH: Sorry. CHAIRMAN STRAIN: That's okay. Further down it talks about more uses, and it lists, besides the pathways, which bring in the question I just brought up, there are a few other uses listed. One is shelters without walls, but I don't think you're proposing a shelter; educational signage and bulletin boards; benches and seating, viewing platforms, wildlife sanctuaries, conservation - related and recreational activities, and that's it. So how do you get a sewage treatment house in there? MR. YOVANOVICH: Well, what we're going to have to do, Mr. Strain, is that document needs to be reconciled with the uses allowed under the PUD preserve district. CHAIRMAN STRAIN: What document? MR. YOVANOVICH: The standard form conservation easement needs to be consistent with the PUD. CHAIRMAN STRAIN: Okay. Well, then that brings my next question up then to Heidi. If the conservation easement isn't the standard conservation easement referred to in the staff recommendations and isn't the one pursuant to that section in the LDC, does that become a deviation to the LDC, or how does that get changed? What's the process for -- which is -- which way is the best process to proceed with that issue? MS. ASHTON- CICKO: Well, if they're to present a conservation easement that's other than our standard form, then it would go to the Board of County Commissioners for the board to approve that conservation easement. What I don't know is whether or not they have already received any permits for the boardwalk that they're proposing, because there are some other sections in the code that deal with structures that had permits prior to June 8, 2010. CHAIRMAN STRAIN: Okay. And I would imagine that you and your staff are not quite familiar with those offhand right now, right? MR. YOVANOVICH: Whether we have any other permits? CHAIRMAN STRAIN: No, how the other permits you may have, whether they do or do not fall under the criteria that is subject to the different time frames that Heidi just mentioned. MR. YOVANOVICH: I don't know the answer to that. MS. ASHTON- CICKO: Have you already gotten any permitting for the boardwalks and so forth? MR. YOVANOVICH: No, not from the county, not from the county. MS. ASHTON- CICKO: No. CHAIRMAN STRAIN: Okay. Well, then -- so the outcome of this then, Heidi, would be that either we do a deviation for the LDC to avoid the reference to "H" in the conservation easement or change the conservation easement, which takes a request separately through the Board of County Commissioners; is that what you're saying? MS. ASHTON-CICKO: Yes. CHAIRMAN STRAIN: Okay. That's a whole -- and that's -- the conservation easement come before this Planning Commission? I don't believe they do. That language would -- MS. ASHTON- CICKO: No, it would not. CHAIRMAN STRAIN: Okay. I'll make a note for further discussion, Richard, but I think it's something that you need to address. So — okay. I was going to try to find my other questions here real quick. MR. YOVANOVICH: Can I respond to the -- I think you had a bathroom question or pump -out, is that what you're -- was that one of the questions you had? CHAIRMAN STRAIN: I just wanted to understand how that fit into the reference to the LDC language for the language in the conservation easement. MR. YOVANOVICH: I understand. But when you look at our preserve district in the PUD, it allows the following uses as a matter of right in those districts: Passive recreational areas, boardwalks, including recreational shelters and restrooms, so -- CHAIRMAN STRAIN: Okay. MR. YOVANOVICH: So those are permitted uses that I would believe would be authorized to be made to the standard form document because they have been approved by the Board of County Commissioners already Page 43 of 94 March 1, 2012 through the adoption of the PUD. If we didn't have that topic addressed in the PUD and I wanted to change the standard form document, then I would agree I need to go to the Board of County Commissioners. But if it's a use that's already specifically identified within the preserve, the form, the standard form, needs to be modified to address what had been previously approved before. CHAIRMAN STRAIN: Heidi, before you affirm, let me -- hear me out. The boardwalk reference in the PUD, I cannot remember offhand, does it tell how wide it will be? MR. YOVANOVICH: It does not address width. CHAIRMAN STRAIN: Okay. If width is silent in the PUD, what does it fall back to? MR. YOVANOVICH: Well, it also says in this section, subject to the permitting we receive, and the Water Management District limited the width to 8 feet. CHAIRMAN STRAIN: If we have a standard conservation easement that has the language reference that I referred to but now that can't happen, do we need to change the standard conservation easement? Otherwise, you have conflicting documents. And if we need to change the standard conservation easement, we go back to my original question, what's the process to do that, and I think it's back before the Board of County Commissioners; is it not? As far as the shelter goes in the restroom, it isn't a restroom. It's a building to store a container to pick up -- I don't know how to politely say it -- but things out of boats. COMMISSIONER EBERT: Discharge. CHAIRMAN STRAIN: Discharges from boats. So it isn't a restroom, is it or is it going to be both, a place to keep -- MR. YOVANOVICH: Well, the part I found to be kind of ironic is I can have a restroom in the preserve area to be served by (sic) the 640 multifamily units yet I can't have a portable pump -out facility that probably -- Tim, what was the gallons? What was the gallonage of the port? CHAIRMAN STRAIN: It's a storage shed. MR. YOVANOVICH: Okay. Are we talking about the pump -out facility or the storage shed now? CHAIRMAN STRAIN: I thought they were one in the same. You've got two buildings out there? MR. YOVANOVICH: I've got a pump -out facility that -- it holds 40 gallons. CHAIRMAN STRAIN: But that's a machine. It's not -- MR. YOVANOVICH: Right. But it's almost -- they described it almost like a shop vac that you -- CHAIRMAN STRAIN: I know. I bought one for the marina I was involved with. Yeah, I know what they do. MR. YOVANOVICH: It's 40 gallons. It's 40 gallons. CHAIRMAN STRAIN: Right. You wheel them into a storage shed. MR. YOVANOVICH: I can have a full- fledged restroom that could serve 640 people, but I can't have a pump -out facility -- 640 units, and I can't have a 40- gallon pump -out. CHAIRMAN STRAIN: You know, you're missing the point. MR. YOVANOVICH: I guess I am. CHAIRMAN STRAIN: Okay. The point is, we have a conservation easement that requires you, if you accept it as part of the staff recommendations, to be compliant with Section 3.05.07.H of the Collier County LDC. Based on what I'm hearing, you can't be consistent with that without changing the conservation easement. All I'm suggesting to you is to cross the is and dot the is and get it done so that it's not subject to challenge as you go down the road for being inconsistent with the document you agreed to be consistent to. MR. YOVANOVICH: And I get that, Mr. Strain. CHAIRMAN STRAIN: Okay. MR. YOVANOVICH: But you're asking me specifics that I'll have to deal with in the context of the PUD document. I don't want the public to walk away and say, I've got to ask for permission to put certain things in the conservation -- in the easement document itself, because those things are already addressed in the PUD. I'm not -- maybe we're talking about -- CHAIRMAN STRAIN: Well, it's not the public's position to walk away and make that kind of decision. It's going to fall back on staff. You're going to come in with a building permit. Staffs going to look at your conservation, they're going to Page 44 of 94 March 1, 2012 turn to 3.05.07.H, and they're going to say, oh, the boardwalk's supposed to be 10 feet. You're going to say, well, no, it isn't. We have an allowed boardwalk in our PUD. Staffs going to say fine. Where does it show it's 10 feet wide? You're going to say it doesn't. What does that mean? It falls back on the LDC. I'm trying to get the trail clear for staff. MR. YOVANOVICH: I hear you, okay. MR. HALL: For the record, Tim Hall, again. The issue did come up. And that area, you've got to remember, is already under an existing South Florida Water Management District conservation easement. It's permitted, it's allowed under their permits, and it's already there under that easement. When we do the conservation easement to the county, which is, in order to meet the native preserve preservation requirements, if this is an issue, that area around that building can be carved out of that easement that's going to be given to the county. It's not needed for the native vegetation retention. So it could just be -- we could just cut the conservation easement that's going to be deeded to the county or dedicated to the county around to that, and it's not an issue anymore with regards to that. And then that standard document would still be -- CHAIRMAN STRAIN: No. That takes care of one of two issues. MR. HALL: It doesn't take care of the boardwalk. CHAIRMAN STRAIN: The boardwalk. So now how are we going to resolve the boardwalk? You've got to remember -- and, Bill and Ray, you had asked me before this meeting to make sure everything was as clear as possible so when you guys got an application it would be black and white. I'm trying to do that. MR. BELLOWS: No, I agree. CHAIRMAN STRAIN: If you feel that you understand it over my questions, then please just tell me, and I'll back off. But other than that, I think we need to understand how you're going to address the width of the boardwalk in conflict with the conservation easement language. Are you going to request a change to the conservation easement if one is needed? Are you going to request a deviation to the LDC? What is your intention? Because when staff gets it, they're going to have a conflict. How are you going to resolve their conflict? What would you say to them? MR. YOVANOVICH: We'll deal with it. We're going to have to deal with it through the standard fonn. CHAIRMAN STRAIN: Okay. You'll have to deal with it before the meeting's over. This is more of it. I'll wait. I've got staff questions. I'll catch them when they get up here. The constructed material used for the piling on the docks, your permit with South Florida says the following: Docks and walkway pilings shall be constructed of plastic, concrete, or green heart, non -CCA treated wood or wood wrapped in an 30- to 60 -mill PVC. Your details show the wrapping going 6 inches below the bottom, but that would leave the -- and that shows the rest of it being CCA treated wood. Are you changing that detail? MR. HALL: We're not at the moment, because the wrapping that's referenced in the permits has to deal with potential leaching into the water body. So the requirement that they normally -- the wrapping that is nonnally required is as we've shown it on that detail. If -- if you have a concern and want the piling wrapped all the way to the bottom, we can do that. But in terns of being consistent with the permit, the detail that we have shown is. CHAIRMAN STRAIN: Okay. So even though the permit says you're supposed to use non -CCA treated wood and it doesn't limit it to just the water line, you're saying that's what it means and that's what the -- do you have anything in writing from the South Florida that says that's what they'll accept? MR. HALL: I don't have anything in writing with me. I have, you know, the hundreds of other projects that we've done in exactly the same manner. But I don't have anything in writing. If that's something that we have to provide at the -- you know, at the permitting or SDP -- time of SDP, we can do so. CHAIRMAN STRAIN: I just want to make sure we have no conflicts, wherever this is worked out. MR. HALL: And I understand. And going back, after you had pointed it out and looking at it, it isn't real clear. But the wrapping of pilings that have the potential to leach is more an issue associated with the water than the sediments. So they want that area that's going to be exposed to the water to be wrapped. CHAIRMAN STRAIN: But the salts that are used and the chlorides, or whatever the chemicals are, or arsenic -- I'm not sure what CCA -- all the chemicals are that are in those -- they leach into the ground table -- ground Page 45 of 94 March 1, 2012 -- I mean, the ground, the soils just as much as they leach into the water. And I'm wondering where -- they're only concerned about the water table in this particular area and not the entire column that these pilings are going in, because they said, plastic, concrete, or green heart. And if you -- so you couldn't do half concrete and the rest wood below the water line, so I would think that kind of lends to that they intended the entire piling to be of a measure of safety not -- and to avoid CCA. But you -- I know that's not your experience. It doesn't mean that it's been -- anybody's checked it in the past either for that matter. MR. HALL: I'd be happy to get that clarified if we need to. I'm not going to be able to do it today, but we can get that clarified. Most of the metals, copper and arsenic, that are associated with that far enough down into the soil -- I don't disagree with you, they do leach into the soil, but they're usually bound there. And unless they're disturbed by pulling the pilings out at a later time, they're held there in place. CHAIRMAN STRAIN: Well, I'm satisfied, as long as before building permit is issued that's clarified to staffs -- you know, staffs -- staff is satisfied with the clarification. MR. HALL: I will definitely do that. CHAIRMAN STRAIN: And you have agreed to go to the two- and -a -half foot draft that I have all my notes on that I couldn't -- so. Well, Tim, I'm getting through it all. I just got all the two- and -a- half -foot draft references earmarked. It will just take me a minute. Does anybody else have any questions while I'm going through this? Brad? COMMISSIONER SCHIFFER: I could fill the time. CHAIRMAN STRAIN: Go ahead. COMMISSIONER SCHIFFER: Richard, how am I supposed to think of the Outstanding Florida Waters? What does that mean to this site in your opinion? MR. YOVANOVICH: My opinion is to have my expert talk about what it means, which is Tim. MR. HALL: I'm sorry. I missed the question. COMMISSIONER SCHIFFER: Tim, what am I supposed to think about the Outstanding Florida Waters which, essentially, this beautiful strip of mangroves is part of? And it doesn't look as good with a bunch of boats in front of it as it does right now. MR. HALL: Okay. What's the question? COMMISSIONER SCHIFFER: Well, the question is, I think it matters, and you don't want me to think that, so how does that happen? So -- MR. HALL: Well, I mean, the Outstanding Florida Waters designations, it's a designation put on waterways to protect waters that the state considered to have special environmental or historical -- that needed additional protections. And it adds an extra level of review or layer of review when you go through the ERP process. It also imposes additional limits on you, if you will, when you go to construction and how you do the construction because you have to maintain -- I guess turbidity levels is the easiest one to talk about. In a normal non -OFW waters, when you go into construction, you're allowed some increase in turbidity levels while the construction is going on. And there's monitoring that you do to make sure that those levels don't go above a certain -- it's 29 NTUs over the background. When you get into -- and, you know, you have an area above and below the project site that you have to maintain with that. When you get into the OFW designation, instead of allowing you that increase to 29, they say when you get outside of the boundaries of the settling base and whatever they set, at that limit you have to be at zero. You're not allowed to increase that turbidity level at all. So it generally changes the way that you do construction and at -- sometimes the type of equipment that you use to do it to try to make sure that you avoid those turbidity issues. I'll give you an example. On this project with the dredging that we're proposing, the north and south ends of the project site are our boundaries. The dredging is being done hydraulically with a suction pump instead of with a backhoe, and what that does is allows the material to be sucked up and put on land to where it can be dried and all, and then hauled off. The back -- if a backhoe was doing it and pulling it up and putting it onto the barge, you get the problems with maybe stuff filling off the barge and more turbidity being created. So it's a matter of defining in the permits how Page 46 of 94 March 1, 2012 you can do that to maintain that higher water quality standard in those waters. And that's just, I mean, one example. The separation of the docks from the seagrasses, you know, protecting the resources that are already there, requesting the boat lifts, they would prefer to see all of the boats on boat lifts because it gets them out of the water, but they did not make that actually a requirement on this site. The flushing potential and the amount of water going back and forth on a daily basis they felt was enough to make sure that the -- there weren't going to be any increases in water quality impacts associated with the project site. COMMISSIONER SCHIFFER: Okay. Do you know of any other Outstanding Florida Waters that have a situation where they have in front of the mangrove docks like this? MR. HALL: There are some further north. In Collier County there aren't many shorelines that still have, you know, the mangroves associated with residential developments. COMMISSIONER SCHIFFER: All right. MR. HALL: So I'm not -- I can't -- Outstanding Florida Waters in Collier County, I can't think of any. There's maybe some further to the north. Isn't Barefoot -- yeah, the Barefoot Beach Condominium Club has a lot of docks, and they have a mangrove fringe along their shoreline as well. It's not as deep as this one. It's basically just about a 15- or 20 -foot area behind the docks. COMMISSIONER VONIER: Excuse me, Tim. How about Hamilton Harbor? MR. HALL: Hamilton Harbor was actually dredged. That was a basin that was dredged back into it. They do have mangroves adjacent to it, but there's a neat kind of system of weirs established around that basin. When the tide comes up, the water's able to flow in and out of those mangrove communities, but there is actually a wall there that separates the basin from the mangroves in that instance. COMMISSIONER SCHIFFER: Okay. MR. HALL: Yeah. And it's also pointed out that that's not an OFW right there. Rookery Bay Aquatic Preserve starts just to the south of that, but Hamilton Harbor's not included in it, I don't believe. Yeah, it's not. CHAIRMAN STRAIN: Okay. The rest of my questions are going to be of staff. Are there any other questions to the applicant at this time? Phil? COMMISSIONER BROUGHAM: Just one, one I forgot to ask earlier. I was provided by Ms. Snyder a letter from the Corps of Engineers, Colonel Pantano, dated August 19 -- August 19, 2009, regarding this -- regarding the boat docks. And it states that their -- their permit, being the Corps' permit, requires docks to protrude less than 25 percent of the waterway. And we've already talked about the fact that it's going to protrude more than 25 percent, but -- MR. HALL: But we're protruding more than 25 percent the way the county defines the waterway but not the way the Corps defines the waterway. COMMISSIONER BROUGHAM: Well, I'm quoting the letter from Colonel Pantano. MR. HALL: Okay. COMMISSIONER BROUGHAM: And he states that their permit, "their" being the Corps of Engineers, requires docks to protrude less than 25 percent of the width of the waterway. MR. HALL: Right. And we have a Corps permit for this project. COMMISSIONER BROUGHAM: Let me ask my question. MR. HALL: Okay. COMMISSIONER BROUGHAM: They're stating that their permit, okay, requires that it not protrude 25 percent. By admission, it is going to protrude 25 percent of the waterway. MR. HALL: Depends on whose definition of waterway you're looking at. Again, we go back to definitions. The Corps does not include to the mangroves in the waterway. As far as they're concerned, it's the open -water portion of that, and that's already been through their review. COMMISSIONER BROUGHAM: There seems to be a lot of contradiction or interpretation of terminology here, and that's what's personally confusing to me. Channel, marked channel, navigable waterway, waterway by someone's definition, waterway by the Corps of Engineers' definition. And be that as it may, my question is -- and I think I know the answer -- because you're in excess of 25 percent of the waterway, somebody's waterway, it does not negate the Corps' permit to you. MR. YOVANOVICH: Correct. Page 47 of 94 March 1, 2012 COMMISSIONER BROUGHAM: Okay. Now -- can you substantiate "correct" to me? MR. YOVANOVICH: Yes. The Corps gave us the permit and exactly where we're allowed to do the improvements, okay. So the Corps has approved these docks in this specific location. So but when -- so when they're using their terminology of the waterway, they actually mean the open waterway. County has their own definition of waterway, which would include the mangroves, okay. So it's the county's definition that's creating confusion in this particular case, because the mangroves are a part of the county's definition of waterway for purposes of their 25 percent criteria. COMMISSIONER BROUGHAM: Whereas, the Corps -- if I'm understanding what you're saying, the Corps looks out there, does a survey, whatever, and they do, and they see H2O. MR. HALL: Right. I mean, they see -- COMMISSIONER BROUGHAM: And that's their waterway. MR. HALL: Correct. MR. YOVANOVICH: That's -- yeah. They take a, okay, "where's the boat really going to go" approach. COMMISSIONER BROUGHAM: Okay. I mean -- okay, fine. It's just very confusing people using -- people -- agencies using the same, literally the same terminology in conflicting manners. I mean -- MR. YOVANOVICH: Correct. COMMISSIONER BROUGHAM: -- I'm finding it very difficult to separate the weak from the BS. Pardon me. MR. YOVANOVICH: That's okay. CHAIRMAN STRAIN: Anybody else have any questions of the applicant at this time? (No response.) CHAIRMAN STRAIN: Okay. Richard, did you have any -- you finished up on your presentation? MR. YOVANOVICH: Well, no. Yes, we're done with our presentation, and we'll obviously respond to any comments from the public. CHAIRMAN STRAIN: Right. No problem. And now we'll move on to staff presentation. MS. GUNDLACH: Good afternoon, Commissioners. I'm Nancy Gundlach, principal planner with the Department of Land Development Review Services. And staff is recommending approval of both the PDI and the boat dock extension. And on the boat dock extension there are conditions of approval I through 6, and they are listed on the last two pages of your staff report. I also have copies of the minutes of meeting from Monday evening's neighborhood information meeting. This is the second of two meetings. I'd be happy to hand them out, perhaps, after we have our -- answer questions. CHAIRMAN STRAIN: If we have a break, you can hand them out -- maybe somebody else could hand them out while they're -- if Ray doesn't mind helping. MS. GUNDLACH: Thanks, Ray. CHAIRMAN STRAIN: Thank you. MS. GUNDLACH: And with that, I'd be happy to answer any questions. And also we have our environmental specialist here today as well as our Growth Management Plan manager to answer any questions you might have. CHAIRMAN STRAIN: Okay. Thank you. Let's start -- Brad? Thanks, Ray. COMMISSIONER SCHIFFER: Nancy, one of the problems I'm having is -- hold on a second -- is Ray being in the way -- no, is, you know, the argument over should this be on the residential parcel or not? I mean, I read the PUD in the residential section. I really do get that feeling. And then the other question I think you can help me with is, you know, when do they submit what is the final plat? Because, you know, when I read through this it appears that at certain times all the uses should be shown. And now they're saying they can't show it until they can get it. I mean, they could put a little dot and say, "if allowed," I mean, so there is ways to bridge that gap where, you know, everybody would see it coming. But what's your opinion of -- well, let me go to the basic thing. They're saying we have a residential area, which is the thing that includes this as an accessory use, and all the accessory uses are -- that they've done prior are in that area, and then we have a preserve area, and then we have this thing "open space," and the reason it's called open Page 48 of 94 March 1, 2012 space is because the area in the PUD has preserves and open space, so the left over must be the water as an open space, but it has no development criteria, the open space. So do you agree that that's what's true? Is that the -- what's happening here, or is that waterway part of the preserve? MS. GUNDLACH: Okay. I'm going to try to -- it's a very complex question. COMMISSIONER SCHIFFER: It's a complex problem. MS. GUNDLACH: Yeah. The boat docks are an accessory use to the residential uses. And for me it was sort of common sense that they go in the waterway; however, the reason for the -- the insubstantial change to the master plan up the PUD was so that it would be clearly depicted and hopefully easy to understand the location of the boat docks. COMMISSIONER SCHIFFER: Okay. And -- you know, and I asked Rich a similar question. He pointed out, well, look, we have other accessory uses like the clubhouse and stuff that we really don't show, but they do honor the part of the code where they do, in fact, fall in the residential section. I mean, there's no question that wouldn't be allowed. But what do you believe -- I mean, how does -- what gives us the ability to take this use that's defined in the residential section, and it says the purpose of this section is to establish land, you know, use regulations for the residential areas, not for the preserve or the now open space. How do we jump out of the --how are we allowed to take an accessory use out there and move it outside the residential? What gives us the ability to do that? MR. BELLOWS: For the record, Ray Bellows. The PUD lists permitted and accessory uses. The accessory use in this case is -- has -- includes a provision that it is subject to the boat dock extension provisions and also based on the historic permitting of the project where the docks were originally intended. It was my opinion that the docks are accessory use and that's where you'd put them. The reason I felt a PUD master plan amendment was required is because of the conservation easement. The conservation easement is not specifically defined in the PUD document. It's remained very clouded as to the applicability of that easement and what that could do to restrict or hinder or impact any proposed docks that, in my opinion, are allowed in the manmade waterway. Hope that answers your question. COMMISSIONER SCHIFFER: Well, kind o£ Let's go back to the final SDP. In other words, in here there is some verbiage -- I could read some of it. It's in the residential -- stating that -- for example, one is, final track configuration and actual acreage of all developments shall be provided at Site Development Plan or preliminary subdivision plat. In other words, the argument they've made when I ask that question is, well, we're not done yet. So we're not final. But the impression of these things is to kind of -- when you're dealing with the SDPs, you're actually dealing with all the cards up and you know -- you know, you're making decisions based on what's going to happen in total. Even in 3.5.0 it says, development uses not specifically specified in the table shall be established during the Site Development Plan, and, again, the docks aren't in the table. So the docks are silently going through this, and they never pop up, there's never a little parking for dock, there's never a power line for dock, there's never anything for dock, and yet they've jumped out of the residential site. So wouldn't you expect something during the prior SDP process? MR. BELLOWS: I don't believe the SDP would require all accessory structures that are allowed in the PUD to be shown on the SDP. They could come in at a later date, and we have a process to amend the SDP to reflect those accessory uses when the applicant feels it's ready to come online. COMMISSIONER SCHIFFER: But then there's words like final track configuration and actual acreage of all development tracts will be provided at the site -- time of Site Development Plan. I mean, that's kind of telling me all cards are up when you're dealing with the Site Development Plans. But you don't think so? MR. BELLOWS: Not in regard to -- CHAIRMAN STRAIN: Brad, maybe I can help clarify something, because I did go through some other documents trying to understand some of the questions that I expected today. If the residential parcel was up against the water and there was no separation by a preserve, basically the water abutted the residential parcel, would then the docks be acceptable based on the fact that they're mentioned under the residential section as an accessory use? Page 49 of 94 March 1, 2012 COMMISSIONER SCHIFFER: Yes. CHAIRMAN STRAIN: Well, I mean, yes, you agree, right? COMMISSIONER SCHIFFER: Yes. And the dock code would even tell us that they'd be accessories, accessory uses. CHAIRMAN STRAIN: October 23, 2002, Margaret Wuerstle, who used to be our planning services department director, came to the following conclusion: It is my opinion that the term "abutting" -- and this is when you're in a PUD -- references the zoning district boundaries and not the property line boundaries. In this case the zoning district is the PUD. I don't -- I would think that she was suggesting that if that's the case, separations by other areas does not prohibit the accessory use as being in the waterway as they are here. COMMISSIONER SCHIFFER: Well, I would argue that the PUD residential boundary is the boundary she's referencing there. CHAIRMAN STRAIN: Right. COMMISSIONER SCHIFFER: And even our -- CHAIRMAN STRAIN: We're on the same page. COMMISSIONER SCHIFFER: But, in other words, these boat docks aren't adjacent to that. They are way out on the other side of the preserve. They're not even in the preserve. CHAIRMAN STRAIN: But they're within the same district. They're all within the same zoning district like the general requirements refer. COMMISSIONER SCHIFFER: Well, in a PUD we establish different zoning areas. In this case it's just residential and preserve. So they're not in the residential district. CHAIRMAN STRAIN: Well, the PUD itself is its own district as a whole. COMMISSIONER SCHIFFER: Right. I mean, let me just get the -- in our dock section, there's this thing on -- determination as principal or accessory use, referring to docks, and it states, boathouses and dock facilities proposed on residentially zoned property as defined in Section 2.2.2, which I can go to, of the LC (sic), shall be considered an accessory use or structure, meaning it has to be on the residential. When you send there it says -- and residential's defined -- and I don't want to go through all the different zoning, but it is the residential component of the PUD only. CHAIRMAN STRAIN: But there is -- you'll never have a dock on a residential property. I mean, it ain't going to happen. COMMISSIONER SCHIFFER: You could. CHAIRMAN STRAIN: Where? COMMISSIONER SCHIFFER: I mean, you know, the concern -- well, where the zoning is, just take where these people live, that whole block of area is zoned residential. CHAIRMAN STRAIN: Right, but the water that the dock is in isn't. COMMISSIONER SCHIFFER: But I think the waterways -- I'd have to go back and look at the zoning map. I don't think the zoning follows the bulkhead line. I think that whole chunk of land is zoned residential; therefore, essentially, the bottom of the waterway is residential. But that's -- we can go back and look at that. CHAIRMAN STRAIN: I'll check it. Maybe this -- was this waterway zoned -- would you assume this waterway then was zoned residential -- COMMISSIONER SCHIFFER: No. CHAIRMAN STRAIN: -- since all the rest of it is? COMMISSIONER SCHIFFER: No. Is the preserve zoned residential? CHAIRMAN STRAIN: It was at one time, until 1998. COMMISSIONER SCHIFFER: Well, we're talking, you know, 2000 when this -- it's not. CHAIRMAN STRAIN: It changed in'98 from our -- COMMISSIONER SCHIFFER: So the preserve is not residential, that's the point. The open waterway, which isn't -- doesn't even have its own district, is now called open space, and the -- it's not residential. But anyway -- I think -- MR. BELLOWS: For the record, Ray Bellows. The unique nature of this is that the PUD boundary incorporates the manmade waterway and Water Turkey Bay because they had -- at the time, it's my understanding, that they owned the land under the waterway. Page 50 of 94 March 1, 2012 COMMISSIONER SCHIFFER: Right. MR. BELLOWS: Submerged lands. COMMISSIONER SCHIFFER: And who would ever believe we could build it on an adjoining lot? I mean, they can't build it on Baker Point, which I suggested earlier, so -- MR. BELLOWS: I think -- my logic is that the waterway isn't in a district. It isn't in the preserve district. It isn't classified as anything. But we do have language in the PUD that says boat docks are allowed as an accessory use subject to the boat dock extension criteria. You can't put them in a residential tract with no water, so the intent is that they were to be put in the manmade waterway, but that isn't in -- part of any district that would prohibit. The one caveat that I was -- I wanted to clear up as part of the PDI is what is that conservation easement doing? Certainly, I haven't found anything that says you couldn't put a boat dock in -- within this conservation easement. We just want it cleared up as part of this process. But certainly -- COMMISSIONER SCHIFFER: And -- MR. BELLOWS: I don't know where you'd put the boat bocks, quite frankly, if you don't do it this way. COMMISSIONER SCHIFFER: No. We do -- out in the middle of nowhere we do PUDs, and we've even had some chuckles over this thing where we have lakes and we put docks in. So you have lakes in the R district. You may want to put a dock on that. I don't care. But the point is that, you know, there are docks on lakes, too, so that's not totally freaky that an accessory use to that -- Rich, you wanted to say --jump in. MR. YOVANOVICH: If you don't mind. Mr. Strain, it just clicked. This is an RPD in the new terminology. This is a residential PUD. The entire number of acres is a residential project, okay. So we are, in fact, putting our accessory uses on residentially zoned property. The whole -- the PUD applies to the entire boundaries. In today's terminology you would have the R in front of it for residential PUD. So it's a residentially zoned piece of property, and the docks are on residentially zoned property, just like the neighbor. COMMISSIONER SCHIFFER: So when we referred to -- so when we referred to residential components in PUDs, it means this whole site? That's what you're telling me. MR. BELLOWS: I think the point Mr. Yovanovich is trying to make is this is a residential PUD to the boundaries of the PUD. There are tracts within the PUD that may restrict or allow uses that are prohibited in other areas. The thing is, this PUD doesn't say that it is restricted or allowed, but it does say accessory uses to residential boat docks. And where are you going to put them but the waterway? COMMISSIONER SCHIFFER: But the section that the docks are in -- MR. BELLOWS: Yes. COMMISSIONER SCHIFFER: -- states that this section is to establish the land uses, regulations, and development standards for the residential development areas indicated in Exhibit A, which is not the preserve or not this open space. Anyway, enough. CHAIRMAN STRAIN: We were on questions of Nancy. Does anybody -- COMMISSIONER EBERT: Yes, yes, I do. CHAIRMAN STRAIN: Go ahead, Diane. COMMISSIONER EBERT: Nancy, one of the things I noticed is there was no fire code review fee collected MS. GUNDLACH: Correct. COMMISSIONER EBERT: --with this back in 2010. That was missed. MS. GUNDLACH: No, it was not missed. The fire code review will be conducted at the time of SDP. COMMISSIONER EBERT: Okay. I'm going to read to you the environmental advisory board staff report back in September 6th of 2000. This is with Stan Chrzanowski and Barbara Burgeson. In reading this over it says, impacts to jurisdictional wetlands as shown on the PUD master plan include an eight foot wide boardwalk and gazebo. That was in there, the one that was going to go out to Turkey Bay. It says, a marginal wharf is also proposed to be constructed in the canal along the western property boundary seaward of the mangrove fringe. The wharf will provide vessel mooring for the residents of the project, but that was crossed out. And then when I go to the end where it gives the recommendation and the environmental things there, Page 51 of 94 March 1, 2012 environmental says, remove 3.4(B)(2) from the PUD document, as this is in contact (sic) with the discussion and proposed protection of this area in the EIS. The consultant stated also the applicant will preserve the eastern shoreline of Water Turkey Bay. So they also say, amend Section 4.4(A) of the PUD, which reads as follows: Principal structures shall be set back a minimum of 25 feet from the preserve district boundaries in accordance with the Collier County Land Development Code. I'm shortening it a little bit. It says, remove Section 4.4(D) through 4.4(o as they are not appropriate for the preserve district. And it says, revise Section 5.10 of the PUD document to read the Florida Fish and Wildlife. That was the only thing that was changed. This was before the PUD came to the Planning Commission, before the Planning Commission, and I started -- I looked back in the PUD, which I have in front of me. Boat docks was not -- boat docks were not crossed off. Okay. MS. GUNDLACH: Okay. COMMISSIONER EBERT: In the meeting of the Board of Collier County Commissioners, it was also asked that on 3.3, Page 3.3 of the development standards, that non jurisdictional open space be crossed out from then on. That was not crossed out. Of -- 4.4, the development standards, A, which says 5 feet, which was supposed to be 25 feet, that was not crossed off. That was not changed. Where it -- also in 4.4(D) through (1) was to be crossed out. The only thing that was crossed out was (I). Nothing else was crossed out. This kind of reminds me a little of Stevie Tomato's. And why isn't this taken out before it comes before the BCC? Because this was asked to be taken out. MR. YOVANOVICH: I'll tell you why; because they were recommendations that the EAC made, and the developer didn't agree with the recommendations. So we went forward with what we wanted, since that's how PUDs work. It's the developer's land. The developer asks for the zoning. And the board either votes for what the developer proposes or they don't. The developer -- in this case the board voted for what the developer wanted. The EAC made a recommendation. We respectfully declined their recommendation, and the board voted on what we wanted. COMMISSIONER EBERT: Well, I will go back later to the board minutes of the BCC, then, where they made, with all these stipulations -- and even the county attorney at the time said -- when Ms. Mac'Kie said, well, the boat docks aren't even in here, you know, we'll check this later. It was not done. I mean, I find a lot of inconsistencies here. CI IAIRMAN STRAIN: Any other questions of staff? (No response.) CHAIRMAN STRAIN: Nancy, on Page 6 of your staff report, I just want to understand for clarification purposes some of the things that were written here. MS. GUNDLACH: Okay. MR. BELLOWS: Is this the boat dock or the PDI? CHAIRMAN STRAIN: Oh, the boat dock. I don't have any questions about the PDI. The -- one, two -- about the fifth paragraph up from the bottom, it says, during final construction plan, parenthetical, Site Development Plan, review, these findings may change based on the information submitted at the time. What -- what was the intention of including that in there? What were you thinking? MS. GUNDLACH: Oh, I could ask the staff person who wrote this. CHAIRMAN STRAIN: Oh, I thought you did. I'm sorry. MS. GUNDLACH: Actually, the staff report's composed of several, so I'll direct it to the authors. COMMISSIONER MIDNEY: Sure. That would be great. Whoever wrote it. MS. GUNDLACH: That would be Summer Araque. CHAIRMAN STRAIN: I'm trying to find out to what extent things are expected to change that we're reviewing today. That's what my question's going to be, so -- hi, Summer. MS. ARAQUE: For the record, Summer Araque. Can you please repeat the question? CHAIRMAN STRAIN: Sure. Page 6, the fifth paragraph -- it's just a sentence actually -- up from the Page 52 of 94 March 1, 2012 bottom. It starts, it says, during final construction plans, site development review, these findings may change based on the information submitted at that time. I'm not sure what you're referring to as what may change. And depending on your answer to that, then I'll have another question. MS. ARAQUE: Well, when they come in, we will do another consistent -- to make sure that it's consistent at that time. CHAIRMAN STRAIN: Make sure what's consistent? MS. ARAQUE: With the Manatee Protection Plan. CHAIRMAN STRAIN: Isn't that what we're supposed to be doing today, since it's part of the code? MS. ARAQUE: Right, but we'll make sure when it comes in again -- I mean -- CHAIRMAN STRAIN: Okay. Well, the findings can't change then, right? MS. ARAQUE: Well, here's an example. Between the time that the -- this was -- this language is from the consistency determination -- CHAIRMAN STRAIN: Which I'm going to have questions of in a few minutes. MS. ARAQUE: -- as you may know, which was done in 2009, so -- CHAIRMAN STRAIN: Okay. MS. ARAQUE: -- since then I have, in the past three years, meaning like in the past few months, I've looked at current data to make sure that the current data doesn't change everything. So that's what we'll do. I mean, if this comes in, or two or three years from now, we'll make sure at that time that it's consistent at that time as well. CHAIRMAN STRAIN: Okay. MS. ARAQUE: Because that can change with water depth, impacts, manatee use, et cetera. CHAIRMAN STRAIN: Okay. Well, my concern is if we vote on something today but they have the ability to change what we vote on today through submissions in the future, these findings -- it says, these findings may change based on information submitted at the time. Are you saying, then, the only change would be for inconsistency, because -- MS. ARAQUE: Right. They don't have -- CHAIRMAN STRAIN: Then they wouldn't be allowed to go forward? MS. ARAQUE: They don't have the ability to change the ranking. The ranking changes because of -- what happens in the environment can -- say manatee deaths. CHAIRMAN STRAIN: Okay. So even if we find a -- even if a boat dock extension of any kind is approved based on the Manatee Protection Plan that they submit at the time, if the criteria has changed, they no longer are consistent with that plan, then they can't go forward, even though we've approved it, or the board has approved it? MS. ARAQUE: I'll let Bill step in. MR. LORENZ: That would be correct. At that particular point, at the final development order, we could not approve something that's inconsistent with the plan. CHAIRMAN STRAIN: Right. But, see, a lot of the inconsistent stuff -- I say "stuff' for lack of a better word -- is ambiguous sometimes; it's subject to interpretation, and that's kind of where I'm going is, I don't want to -- whatever comes out of this meeting or any boat dock meeting, if it changes the concepts that were represented to this board, I don't think those are the things that you're going to say are changing your inconsistency. It's actual factual data based on manatee mortality or things like that. MR. LORENZ: That would be correct. CHAIRMAN STRAIN: Okay. That's fine. Thank you, Summer. Then, Nancy, I'm going through what I have left. If there's any -- I think the next item on staff is comprehensive planning. MS. GUNDLACH: Okay. CHAIRMAN STRAIN: So that's the -- and I have a comprehensive planning question. And I saw Mike's been dying to say something today. So we'll wait for him to come up, and then we'll -- you didn't have to wear that sport jacket for me, Mike. Nick never wears one. MR. YOVANOVICH: He's wearing Nick's. CHAIRMAN STRAIN: He's wearing Nick's. It's probably a little too small for you, isn't it? Page 53 of 94 March 1, 2012 MR. BOSI: Good afternoon, Planning Commission. Mike Bosi, comprehensive planning manager. CHAIRMAN STRAIN: Thanks, Mike. Two questions. When I read your comprehensive report -- you and I have talked about this -- you're going to be prepare to respond to a couple of other sections of the GMP today; 7.2.2 and 10.6.1. Did you take a look at those? MR. BOSI: Yes, sir. CHAIRMAN STRAIN: Could you let me know what your findings are on those as well? MR. BOSI: The findings from comprehensive planning would be whenever an SDP submission would be submitted that those plans would have -- be consistent with those specific policies that you just referenced, 7.2 and -- CHAIRMAN STRAIN: 7.2.2 and 10.6.1. MR. BOSL• Correct. CHAIRMAN STRAIN: Okay. The only reason I'm asking is because you didn't reference those in your planning letter, and those were definitely -- they mimic the other one that you did reference, which is 6.3. MR. BOSI: 6.3. CHAIRMAN STRAIN: So I just want to make sure they are part of your analysis and consideration. MR. BOSI: Those are all part -- or the considerations -- I thought 6.3 was the one that was applicable specifically to this instance. But -- and those other policies are more general and have applicability, but I did not reference them, and -- but that wasn't because they do not apply and they won't have to be adhered to by -- whatever the SDP submission to implement this boat dock. CHAIRMAN STRAIN: But they are then -- but you are in agreement that they are applicable to this application. MR. BOSL• Correct. CHAIRMAN STRAIN: Okay. The fiscal analysis requirement that was mentioned by Tony Pires, it's 10.1.6, what is your department's position on how that is relative to this particular application? MR. BOSL• Well, in speaking with Bill Lorenz, the past interpretation that David Weeks, the actual GMP manager, has made was related to the term -- and it's related to the term, and I guess it's a term of art, it's construction. The individual application is not destroying the wet -- the wetland system. It is impacting it. There's no net loss. And because of that, there's no requirement for demonstration of the public benefit or the financial feasibility. And from discussion with Steve Lenberger, that -- those were something that we have never had triggered. We've never had those requirements triggered for an -- individual boat docks related to a residential development. And -- haven't connected the dots with the conversation, but I believe the reason why that would be was because the terms in terms of how we're viewing the terms "destroy" versus "impact," and we believe that this particular instance, as most instances, is you are impacting the marine wetlands, but there's not a destruction of the wetlands -- or the marine wetlands. CHAIRMAN STRAIN: Can you think of an instance, not that it has happened, but could happen, not on this particular project, but just so I can understand it better, of how we would enact a financial analysis, what would be -- what would they have to do require one? I mean, how extreme is that? MR. BOSI: If you remember, during the EAR -based amendments of just two weeks ago, this was one of those policies we said, you know what, we've never utilized it. On a residential project, how could we -- I mean, they would have to show us a construction estimate. They would show us revenue that they have enough in the bank or can secure a loan to provide the construction, and that would satisfy, I would imagine, the financial feasibility for an individual project like that. But that has never been applied, and that was part of the discussion -- and part of the discussion, if -- we probably won't get to hear it today -- but when we do get to pull that up, that's going to be some of the last issues that we're dealing with within the EAR -based amendments and one of the reasons why we said the financial feasibilities for a residential project doesn't make a lot of sense and doesn't have the value for -- compared to the cost that it would be to the applicant and then the cost that it would be to staff to try to make an evaluation of whether that financial feasibility closed the actual loop. CHAIRMAN STRAIN: Well, and I don't -- the financial analysis that I'm used to seeing on projects that are made as instructed, they're virtually useless. So I don't really -- I tend to agree with you on that issue. But I wasn't here two weeks ago, and so I missed that part of it, and so that's why I had to ask. I didn't even know it was discussed, but I appreciate you telling me. Page 54 of 94 March 1, 2012 Thank you. Okay. Anybody else have any questions? COMMISSIONER EBERT: I do have a question. CHAIRMAN STRAIN: Sure. COMMISSIONER EBERT: Mike, can you tell us, do you have concurrency on waterway protection? Do we have any policy on waterway protection? MR. BOSL• No, none -- we have no -- in terms of concurrency. The concurrency management system does not apply to that particular aspect. COMMISSIONER EBERT: Okay. There's a reason I ask, because in trying to find out some information on this, I called the Sheriffs Department, and he said we only have seven people, plus myself, doing all the waterways nine miles out from Bonita Beach Road all the way down to Chokoloskee. And he said, we do not have the staff to take care of the problems. And I went, you only have eight people for all our water -- I was really kind of shocked to find that. And so they are not -- they're mainly down, he said, at Gordon Pass and Marco Island because that's where the biggest offenses occur. So I was just wondering if we had any. CHAIRMAN STRAIN: Anybody else have any questions of staff at this time? (No response.) CHAIRMAN STRAIN: Thanks, Mike, appreciate it. Nancy, thank you. And we are going to take a break for 15 minutes. We'll be back at 2:30 and resume at that time with public comments. (A brief recess was had.) CHAIRMAN STRAIN: Okay, everybody. If you'll please have your seats. We're late again. Okay. Just for the record, too, the -- we had a whole bunch of stuff on our agenda for today, and we're not going to get to it all. The one that we're not going to get to, I can tell you for sure, is the EAR amendments. So any staff members that are sitting here, or any members of the public, the EAR will have to definitely go up to the next meeting, on the continuation meeting on the 6th or the 15th. I would expect it's going to be the 6th, but we'll see. We have two other -- three others. I can tell you we're going to -- we're going to fit Lot 80 in for Plantation Island today. I was approached on that, I think, yesterday by a phone call or today, this morning maybe. The individual for that one is here. He flew in. It should be a quick hearing, but at 4 o'clock we will move on to that one. The SSP Associates will take time, so I don't see how we'll get to that today, and the Crossroads Commercial Subdistrict, I'm not sure we'll be able to get to that today, because that's last on the agenda. But we'll do our best to -- but I do know if anybody's here for the EAR, at least we can assure you that one isn't going to be heard today. So with that in mind, we left off, we were going -- we finished our discussions and questions with staff and with the applicant. We'll go into registered public speakers first. And then after the registered speakers, I'll ask if anyone who hasn't spoken would still like to speak. Whether you register or not, we'll still give you some time. Ray, how many public speakers do we have, do you know? MR. BELLOWS: We have 35 to 40. CHAIRMAN STRAIN: Okay. If you -- when you come up to speak, you can use either microphone. We ask that you try to limit your discussion to five minutes, but that's not a hard, fast rule. We're here to listen to you. It's helpful if you're not redundant. And, you know, if you agree with -- if you just agree with the person ahead of you or prior to you, just say, I agree with that person, and we just note that for the record. So however you want to proceed, though, it's your five minutes. So, Ray, would you start calling the speakers, please. MR. BELLOWS: The first speaker is Pamela Leck, to be followed by Jill Nesbitt. CHAIRMAN STRAIN: And the only other thing I ask is if you were not sworn in this morning when everybody had to stand up and be sworn in, just tell us so we can swear you in because, otherwise, your testimony becomes not as valid. MS. LECK: I was. I was here at nine. CHAIRMAN STRAIN: Thank you. COMMISSIONER BROUGHAM: Pull the mike down. Page 55 of 94 March 1, 2012 MS. LECK: I had written "good morning," but I guess it's afternoon now. Good afternoon, Commissioners, ladies and gentlemen. My name is Pamela Leck. I live in the Dunes and chair the boat dock committee comprised of ten representatives, one from each association. Everyone at the Dunes is in favor of the 49 slips that hopefully will be coming our way. Much input, time, and thought was put into the rules and regulations by this committee to ensure that owners would be particularly diligent in observing the regulations pertaining to the waterways and our outstanding natural environment. In this respect, a dock master will be appointed who, in addition to his duties, will ensure that each member will be aware -- be aware of and abide by all the rules and regulations, particularly those affecting the surrounding waterways and environment. The State of Florida and the federal agencies have approved the plans after lengthy reviews. We have their approval and respectfully request that you do the same. We are all residents, voters, and are members are taxpaying public of Collier County. We ask for your approval of this dock project. Through boating we may further enhance the enjoyment of living and working in this spectacular environment, as so many of our fellow neighbors already do so. Thank you. CHAIRMAN STRAIN: Thank you. Next speaker, please. MS. FRASIER: I am a resident of the Dunes. MR. BELLOWS: Can you state your name again. MS. FRASIER: I am Joan Fraiser, but I am representing the comments of Jill Nesbitt, also a Dunes owner. I'm just reading her comments here. She could not stay. My name is Jill Nesbitt. I have owned properties at the Regatta and at the Dunes since 2005. I am a registered voter in Collier County. I am in favor of the proposed 49 -slip marina. I feel as a property owner I have the same rights as any other resident in the area to access the bay. I have been witness to several projects planned and completed by Vanderbilt Partners. Every one of these projects have been completed with beauty and respect for the environment. Therefore, I urge you to support your staffs recommendations and approve this project today. Thank you. CHAIRMAN STRAIN: Thank you. MR. BELLOWS: John P. Henry. COMMISSIONER BROUGHAM: To be followed by? MR. BELLOWS: To be followed by Carl Knudsen. MR. HENRY: Hello. I'm John Henry. I'm a taxpayer and owner down here. I've been a boater for about 35 years. And I live right at Surf Colony III overlooking the site. And every day I see speeders going back and forth. I think there's a serious safety issue involved here that's being underestimated by the board and by the builders. The fact is, nobody pays any attention to idle speed. It's either very fast or super fast. And I can visualize, if these docks are built, its going to be a very crowded waterway. And the spots are very narrow and they could, you know, bump up against our walls or have an accident backing out or going in. And I think it's something that you should give serious consideration to. I think -- I wouldn't be surprised if we saw an accident every two weeks if this project goes ahead. Thank you. CHAIRMAN STRAIN: Thank you, sir. Next speaker, please. MR. KNUDSEN: I'm Carl Knudsen. I live at Surf Colony 1II. I'm against the BDU (sic) change. And I have a -- I have a kayak. I kayak in this area. And once these docks are built, if they are built, they're going to force all the boaters closer to our seawall, and it will be a narrower channel, and I think it will be more dangerous. The only time the no wake rule is enforced is when the police officer is sitting in his boat, which is about one hour a week. Thank you. CHAIRMAN STRAIN: Thank you. Next speaker, please. Ray, do you want -- MR. BELLOWS: Next speaker is Ronald Mines, to be followed by Bruce Burkhard. Page 56 of 94 March 1, 2012 MR. MINES: Ladies and gentlemen, good afternoon. I have been very impressed with the process. Thank you for treating it in a very serious and fair way. My wife and I moved to Surf Colony I in 2007 to the eighth floor because we used to live at 5 Bluebill on the second floor. So our key objective in making that move was being able to see our beautiful, pristine area. And we're Florida master naturalists. We love to look down at the coastline with the birds, green herons occasionally, night herons every once in a while, always lots of great blues and great egrets. And it's a very important part of our enjoyment of that property. The other thing that I wanted to mention was that I have gotten my grandchildren into fishing. We fish in that -- in that waterway, and they are now -- have gotten old enough that they can cast a bait out into the middle where the fish are. There are -- they're actually even pretty good at avoiding the boats when the boats do -- you do tend to go up and down through that channel awfully fast. And, of course, if we fill up the half at the channel, it's going to move everybody right over against the dock, or over against our side. So bottom line, I would encourage you to reject the extension. I came with the idea that I was going to encourage you to vote against that PDU (sic), too, but I have come so -- become sufficiently unsure of the details there. I can just say to you that the impact on me is very substantial. So, obviously, that isn't the key issue there. Thank you for the opportunity to make a few comments. CHAIRMAN STRAIN: Thank you. Next speaker, Ray. MR. BELLOWS: Bruce Burkhard, to be followed by Susan Snyder. MR. BURKHARD: Good afternoon, Commissioners. My name is Bruce Burkhard. I'm a resident of the Vanderbilt Beach area. I've lived there for 13 years and boated out of my house for that whole time as well. I've been a member originally of the Vanderbilt Beach Homeowners' Association which later on merged with another homeowners' association in the area, and we're now called the Vanderbilt Beach Residents Association, and we represent about 1,100 residents in the Vanderbilt Beach area. I've also been a member of -- in fact, on the board of that association and the chairman of the zoning committee for the last six years. So I've had some experience and acquaintance with the Land Development Code and the various codes in the county and the state. I think that Nicole's letter to you from the Conservancy, which I'm sure she's going to talk about more when she gets up here, is right on the point. She's done an incredible amount of research, and all of that research points to the conclusion that 49 boat docks, which is really a marina -- this -- is a request that constitutes a substantial change, not an insubstantial change. Backing up Nicole's opinion, Mr. Pires was up here, a seasoned land use attorney. He pointed out many of the finer points of the law. And his conclusion as well was that this is not an insubstantial change but rather an insubstantial (sic) change. That's what's being requested. Furthermore, we have another attorney who we use periodically, and he is both a land use attorney as well as a litigator. His name is Mark Muller of Muller Law, 5150 Tamiami Trail. He submitted a letter to the county regarding this substantial versus insubstantial change. And to the best my knowledge, from what I've seen of the county's package, his letter was not included for your review. So I would like to read just a little bit of what his conclusions are, what he has to say regarding this matter. He says that we believe the application must be denied because Ordinance No. 2000 -74, the amended PUD, which governs the project, does not allow for the construction of any boat docks in the manmade waterway shown on the amended master plan, and thus the boat dock extension application is premature. The amended PUD must be amended by the Board of County Commissioners to affirmatively allow boat docks in the manmade waterway before the application can be addressed by the county -- Collier County Planning Commission. The only reference -- he goes on to say, reference to boathouses and docks in the amended PUD is in Paragraph 3.4(B)(2). This paragraph is contained in Section Roman Numeral III of the amended PUD, which establishes land use regulations and development standards solely for the residential development areas shown in the amended master plan. The amended master plan shows three residential areas, R1, R2, and R3. None of the three include the Page 57 of 94 March 1, 2012 manmade waterway or any land contiguous to the manmade waterway. While boathouses and docks are allowed in R1 2, 3 subject to Section 5 of the Land Development Code, boathouses and docks are not authorized by the amended PUD in the manmade waterway. Section 5 of the amended PUD sets forth development commitments for the entire project. Paragraph 5.10(F) requires that all conservation areas shall be recorded as conservation preservation tracts or easements dedicated to an approved entity or to Collier County. The legend in the amended master plan clearly shows that the manmade waterway is a conservation area and is required to be subjected to the conservation easement described in 5.10(F) of the amended PUD. He goes on to talk about defining what a conservation easement is according to Florida Statutes. And in it, it says it -- construction of buildings, roads, signs, billboards, or other structures on the aboveground are not permitted in a conservation easement. Excavation, dredging, or removal of loam peat, gravel, soil, rock, and other material substance in such a manner as to affect the surface are also not permitted in a conservation easement. And as you've heard already, there -- the developer's proposing dredging in this area. The manmade waterway must be dedicated to Collier County with the conservation easement which retains water areas predominantly in their natural, open condition and retains such areas as suitable habitat for fish, plants, or wildlife, maintains existing land uses, and prohibits or limits construction of structures on the aboveground. The construction of a 1,540 -foot dock with 49 slips protruding a maximum of 280 feet into the manmade waterway from the mean high -water line is completely incompatible with the conservation easement. Twelve years after the amended PUD was adopted the developer has still not dedicated the preserve area and the manmade waterway to a conservation easement. In fact, the application includes a proposed conservation easement which dedicates only the preserve area and completely omits the manmade waterway. And he goes on to say he won't speculate on what the motives are for that. The original PUD is dramatically different from the amended PUD with respect to boathouses and docks in at least three ways. First, the original master plan showed only two land use designations, residential and preserve. The manmade waterway in Water Turkey Bay did not have a land use designation and were not dedicated to a conservation easement. Second, the original master plans showed a marginal wharf contiguous to the preserve area which extended from Water Turkey Bay to close to Bluebill Avenue. The amended master plan does not show the marginal wharf or any docks, and I think that's been pointed out previously. Finally, Section 4 of the original PUD, which established the land use regulations and development standards for the preserve area, specifically referenced the marginal wharf in Paragraph 4.4 1, and stated that the marginal wharf shall be in compliance with the Manatee Protection Plan at the time of final development order approval. Paragraph 4.41 was deleted from the amendment -- amended PUD, and no language authorizing a marginal wharf or any docks was added elsewhere in the amended PUD. Section 3.4(B)(2) authorizes boathouses and docks to be constructed only in the residential areas of the project and does not authorize their construction in the preserve area or the manmade waterway. The developer's reliance on Section 3.4(B)(2) of the amended PUD to gain approval to construct docks in the manmade waterways is clearly wrong. The plain and unambiguous language of the amended PUD does not allow docks to be constructed in the manmade waterway. In fact, the manmade waterway is required to be dedicated to a conservation easement which would prohibit construction of over a quarter of mile of docks. The highly reliable sources have all come to the same unequivocal conclusion; this application is not an insubstantial change but rather a substantial change and, therefore, must go through the substantial change process. Our organization requests that you deny the petition for a PDI and require the applicant to go through a properly vetted PUD amendment. And, Mark, the way I had this arranged was -- I didn't know how you were going to do this, so I set up remarks for the PDI section and then for the dock extension. So if you can grant me time for the dock extension portion -- CHAIRMAN STRAIN: How much more time do you need? MR. BURKHARD: Oh, I'd say about 20 minutes. CHAIRMAN STRAIN: Really? MR. BURKHARD: No, probably about -- hopefully less than five minutes. Page 58 of 94 March 1, 2012 CHAIRMAN STRAIN: That's fine. Thank you. MR. BURKHARD: Okay. My name has already been stated. So as the zoning chairman of the VBRA, I received a copy of a staff study analysis of the entire Dunes PUD from the start all the way through the amendment to the PUD in 2000. That study was done at the behest of the commissioner in District 2 at the time because of all the inconsistencies that he saw in the whole PUD permitting process. So Joe Schmitt at the time directed his staff to do a study to see what happened through this whole process. And it's -- it was somewhat revealing. In one of the first hearings -- this went before the EAC, the Environmental Advisory Commission -- the community was insistent that it wanted to see the mangroves preserved and, thus, it did not think that boat docks along the estuarine shoreline were a good idea. And our commissioner at the time agreed with that and pushed to see that that would be accomplished. And what he -- the concept that he came up with was this thing that's been talked about today, this passive wharf idea. And what that was designed to do was accommodate people in the Dunes to allow them to come down, watch the sunset, fish off the pier, but not impact the waterway with boats and docks. One of the -- part of the stipulation that was put in by the EAC was that this passive wharf would not permit any overnight docking. And that has been a key -- that was a key element of the passive wharf concept. Unfortunately, what this study showed was that this stipulation was never put into the documents as they went forward to you folks or the people that sat in your chairs, the CCPC at that time. So when they made a recommendation to approve the PUD they thought and were assured that they were -- they were supposed to include -- their decision included all stipulations when, in fact, that didn't happen. The CCPC recommended approval, it went to the BCC, and the BCC approved the PUD, again thinking that they had all the stipulations when, in fact, this passive wharf concept had never been discussed. They were not aware of it, and it was not addressed. And our concerns as a neighborhood were not addressed as a result of that, and we were extremely disappointed in that. One major problem, besides the fact that they were never formally included in the PUD nor were these docks shown in an SDP, was the public was never notified during the PUD amendment process. In fact, even the County Commissioners, the BCC, was not aware that docks were going to be discussed during that PUD amendment hearing. So everybody came into that hearing unprepared, and somehow this concept of docks that we were told constantly that everybody knew were going to be there from the start was, in fact, not true. What all of us were expecting was at best, or maybe at worst, a passive wharf. By the time the PUD amendment was over with, discussions were going on about approving docks; however, as we've pointed out, the docks were, for some strange reason, not included in an SDP, not included in the discussion of the actual location of these supposed docks that everybody knew about were never shown in any of the documents and were never fully vetted. And as I say, the public was not aware of the discussion. We had no -- virtually no input into saying that the -- that this dock idea was too invasive and that a passive wharf was the recommendation of the EAC, the district commissioner, and that was somehow bypassed. And now we're faced with essentially talking about a marina and -- in a very controversial area, and we're trying to amend the PUD again through sort of a backdoor process rather than going through what should happen is a proper full vetting of the dock system, and that would mean a substantial change process coming before you as the Planning Commission and then going to the Board of County Commissioners and being vetted that way. CHAIRMAN STRAIN: Just to let you know, you're outside the limits of what you previously told me. MR. BURKHARD: You're watching the clock. CHAIRMAN STRAIN: Let's not try for 20 minutes, though, if we can help it. MR. BURKHARD: Okay. I'll try to shorten it up as much as I can. In looking at the various documentation that's been presented to the board, I looked at the packet, and I was noticing one of the things that we're very concerned about is boating safety, navigation safety in this relatively narrow section of the Vanderbilt Lagoon. And when you were given this slide, I -- I thought, my goodness, you know, that does look like an awfully Page 59 of 94 March 1, 2012 wide thing. And then I looked at the scale on the top, and the scale is off by double. So, in other words, this looks like a really wide body of water, but it's essentially showing that it's 500 feet wide instead of 250, or your documents actually say the average width is 226 feet wide. So what I'm saying is that we have a very -- really a narrow channel that's of safety concern to all of us. My boat is a 24 -foot boat. It draws 3 feet of water. The boats that are being proposed for this area are 30 and 35 feet. I guarantee you they're going to draw more than two- and -a -half feet. They're going to draw 3 feet or better. So we have kind of a problem there. Kind of an indication that this is not a really good project in this location is the fact that they need to dredge. If this was truly a good project in the proper place, dredging wouldn't be required. So that creates a problem. My boat is a deep V hull. At slow speeds it tends to wander back and forth. That's a characteristic of deep V hulls. So as a result, when I'm going down this channel, if I'm passing a boat coming in the opposite direction, I have to make sure that we give each other plenty of leeway because of this wandering tendency of the boats. Additional problem, the boat dock design is set up for boats to be bow in. In order for them to leave the docks, they're going to have to back out. A boat -- a power boat is not very maneuverable at -- in a reverse mode. It's more difficult to steer and control. While it's backing out, it will be subjected to winds and also tidal currents. So that's going to create a problem. Boats coming in from the marina, the basin on the other side, add additional problems. What we have is a huge increase in density if this 49 boats -- boat marina is approved. We're going from zero boats in that area to 49 boats. And it's, I think, unconscionable to put that number of boats into that confined an area. CHAIRMAN STRAIN: Bruce, when you said 20 minutes, you weren't kidding, because it will be 20 minutes in one minute. So I'd like you to please wrap it up, because we do have quite a few other speakers we need to get to. MR. BURKHARD: So anyways, I'll just conclude with this marina's a bad idea and should not be approved. I don't think we should approve it at all, and I would ask that you would consider the hazards to navigation as a very serious concern when you consider the matter. CHAIRMAN STRAIN: Thank you. MR. BURKHARD: Thank you for your consideration, Mark. CHAIRMAN STRAIN: Appreciate it. COMMISSIONER BROUGHAM: Just for clarification, Attorney Muller's letter was fully included in our packet. MR. BURKHARD: Okay. COMMISSIONER BROUGHAM: You had read to us what we already read. MR. BURKI IARD: Okay. I'm sorry for that. Thank you. CHAIRMAN STRAIN: Okay. Next speaker, Ray. MR. BELLOWS: Next speaker is Susan Snyder, to be followed by -- CHAIRMAN STRAIN: Is that pause because you -- MR. BELLOWS: It's a tough one. CHAIRMAN STRAIN: Oh, okay. MR. BELLOWS: I would say William Sjosfrom. CHAIRMAN STRAIN: Okay. MS. SNYDER: Good afternoon. And, Commissioners, again, thanks for allowing us to speak our mind and be a part of this whole public hearing. I'm a person who lives on the point that we've been talking about, and I've written to each of you, so you've seen my name come across your desk a few times. You've heard a lot I had to say. I'm one of those people that was listed separately on the Tony Pires listing as representing the Surf buildings and from the others on the Baker Carroll Point. And I want to start by saying it is a substantial change, and I'll give you three reasons. One is it will create an increase in intensity of land use as has been just stated before; two, it will decrease the conservation easement by more than five acres. And Section E of the LDC changes and amendments, No. 1 states, for the purpose of this section, a substantial change shall be deemed to exist where, quote, there is a proposed decrease in preservation, conservation, recreation, or open space areas within the development not to exceed five percent of the total acreage previously Page 60 of 94 March 1, 2012 designated as such, or five acres. And the third reason I would say it's a very substantial change is that even if docks were a permitted use in the residential area, as has been said before, the proposed location is not in the residential area. It's adjacent to the preserve. And then I'd like to talk about some of the reasons I don't think that this project meets the criteria. The first one I'd like to talk about is the primary criteria, which I've seen it in different forms. Some places it says No. 3, some places it says C. I guess it's the third item, whatever, and it's about navigation and safety, which Bruce talked about. This is a no wake zone. The developer's absolutely right, on the books. But it is not enforceable. In fact, for three years I've been personally involved in trying to correct this. Boats frequently speed through the -- excuse me -- the channel. There are no permanent signs saying it's an idle speed. The only signs posted are on private property. I contacted Sergeant Dave Bruening of the Sheriffs Department and Marine Bureau because I saw that there was a problem. And I said, you know, what can we do about this? So I actually got into the position of taking pictures and sending them to him, but he couldn't do anything because he wasn't there. And he also said, even if I was there, there are no signs, so an idle speed zone can't be enforced. So I said, well, what can we do about that? So he referred me to Pamela Keyes with the environmental specialist -- she is the environmental specialist with Coastal Zone Management. She referred me to the ordinance, 97 -10, that states that this area is a no wake /idle speed zone, but the Fish and Wildlife Commission must sign off before the signs can be installed. Ryan Moreau is the planner of the FWC, Conservation Commission, Division of Law Enforcement, boating and waterways section, and to date he has not okayed the signs. So as it is, there is no way to do anything about enforcement. It seems kind of ironic that the county has the authority today to grant the building of a marina which will add boats where an existing safety and navigation problem already occurs that the county is unable to correct. Another safety navigation issue is that the satellite maps -- and I think I sent you -all a satellite map -- of the area shows that the deepest part of the channel is eastward of the center of the channel, not in the location depicted on all of the drawings that we've gotten from Vanderbilt Partners. They depict it kind of in the -- in the center to the western end closer to the seawall where I live, and they call it the approximate channel location. If the satellite is taking the picture correctly, it isn't in the -- it isn't there at all. So the boat dock planned diagram is flawed. The deepest part of the channel is where the marina boats will be backing, and other deep draft boats are going to have to be in shallower water to get by. Another one of the criteria I'd like to talk about is the effect it will have on our docks, and to do that I'd like to have this picture put up for me. Okay. You can see the distance from the back of the Dunes marina boats to the seawall adjacent to the mouth of the Baker Carroll marina. And for those who don't know, my pencil is pointing to the marina, so that's 192 feet from the back of those boats to the opening of the marina. Now, imagine a 35 -foot boat -- a long boat backing -- and you'll notice that those boats are backing -- from the Dunes marina. Now, I've heard various things from people about how much distance it needs to turn around, but I'd say a minimum would be about a boat and a half length. That would be about 53 feet. That leaves 139 feet for boats to back out of the Baker Carroll Point marina, and they are backing, if you look at these others. They're backing into the same water. At the same time you're going to have boats going back and forth through that channel to get to and from the Vanderbilt Lagoon. Potentially, I mean, optimistically, I guess, there are going to be fishing boats out there, too, and canoes and kayaks and paddle boarders. So congestion's going to be a real problem, especially during season. Okay. Another criteria that they don't meet, in my estimation, is these -- a secondary criterion called major impact on water view. During the neighborhood meeting the other night, I asked Tim Hall what the total height of the structure will be with the boats on the lifts, and he didn't know. And I said that I thought in his drawings it showed a 5 -foot off the water line, and he corrected me to 3, and I went back and checked, and it is 3. Page 61 of 94 March 1, 2012 But I've also measured some boats myself. I've gone and done measurements with my husband's help, and a 25- foot -long boat catamaran that I measured stood about 10 feet above the walkway, and the walkway being 3 feet, we could estimate how tall this is going to be. A 26 -foot deep V stood 11 feet, and a 29 -foot deep V was 11 feet above the boardwalk -- or the walkway. So it seems that a 10- plus -foot height is average for those of the boats that I measured. None of the boats that I measured were as large as a 35 -foot boat, so I don't know whether the height of these boats would be similar or what, but I don't think they'd be shorter. With a 3- foot -high walkway and a 10 -plus boat added on there for elevation above it -- and this would be a 13 -foot height thing made out of the dock itself or the walkway, the lift, and the boat, blocking -- imagine the wall a quarter of a mile long blocking the view. The fishing dock, which is another thing at the end, is 5 feet above the water, and the drawing shows that it's going to have a 15 -foot roof. That makes that one 20 feet high, another barrier to the view. And, incidentally, for comparison, mangrove, the average red mangrove is 25 feet high. So if you're in a canoe at the base of one of these things, you're not going to see the mangroves. You know, this is just kind of a cutesy thing I threw in. I thought it could be called the great wall of channel. This blockage to view will be significant along the narrow channel. Now, this wouldn't be a problem in a much wider channel where we can see the horizon. Incidentally, in referring back -- oh, I was going to refer back to Nicole because we actually ordered things, so Nicole would be talking -- but she'll be talking about the seagrasses, and 3 feet seems to be -- or 3- and -a -half feet seems to be something she's going to be talking about. This drawing shows that the marina walkway at 3 feet clearly isn't high enough to do what she's going to explain. Now, I've been coming to the area since the 1970s. I came to visit my parents when I was still pretty young. My parents owned two different places on Baker Carroll Point at different times of their lives, and I bought there because it's tranquil and beautiful. I was also a science teacher, and I love the life around it. The area is surrounded by mangroves that are supposed to be protected -- the state's supposed to be protecting those for us -- and the waterway is classified as Outstanding Florida Water and should be receiving outstanding protection, too. So I thought, wow, I got an ideal setting here, and it's almost impossible to find it anywhere in Florida. With the possibility of a 49 marina -- dock marina, I feel the value of my property will be lowered because of the drastic view change, and my quality of life will be affected. Thank you for listening. CHAIRMAN STRAIN: Thank you. Next speaker, Ray? MR. BELLOWS: William Sjosfrom, followed by Ruth Ann Rittermeyer. UNIDENTIFIED SPEAKER: Bill had to leave early. MR. BELLOWS: Okay. I still had to pronounce his name. All right. Ruth Ann Rittermeyer. MS. RITTERMEYER: Yes. I'm Ruth Ann Rittermeyer, and I live at Surf Colony III. And when I bought back there I thought all that was protected. I never thought I would lose my view. I feel sorry for people. I understand that you want docks, but we should sacrifice something that nature put in and should be protected for all the wildlife in there? We should sacrifice that because you want a place to put your boat? We have such few protected areas left. We've got to draw the line somewhere. We've got to start protecting things. Thank you very much. CHAIRMAN STRAIN: Next speaker, Ray? MR. BELLOWS: Dick Palen. MR. PALEN: I'm Dick Palen, 15 Bluebill Avenue, and I am homesteaded there; have been there since 2005. Some of the -- I also am president, by the way, of our recreation association. Surf Colony Recreation Association is three buildings, 198 homeowners, who are vehemently opposed to this project for reasons that you've already heard. I would just like to take a minute, though, to discuss -- discuss it from a safety standpoint and -- from a deeply personal safety standpoint. I am a kayaker. I've been a kayaker for years. I'm an experienced kayaker, and I Page 62 of 94 March 1, 2012 can tell you that on a given Saturday or Sunday, kayaking in that little manmade channel now is scary. It's hairy. You've got boats coming both ways. You've got boats passing. You have people driving these boats who do not know the rules and the laws of the waterways. We've heard many comments about no wake. It's ridiculous. The other thing, when I visualize that channel reduced by 25 percent and those brand new boat owners, no experience boating in the end of the waters in Florida backing into my kayak, can you visualize a 400 - horsepower motor backing into a kayak? I have almost experienced that. I experienced it up at Marina Bay. Missed me by inches. Either they don't look or they can't see you. And believe me, when you're in a big good -sized power boat and you're sitting forward at the steering wheel, you probably can't see that kayak or the paddle border behind you. This is ridiculous. I'd like -- in fact, I'd like to invite every member of this commission to come out on a Saturday and Sunday and kayak with me. I have a tandem, double -- two- person kayak. Please come and spend a couple of delightful hours, delightful everywhere except that stretch, that quarter mile between the bridge and Turkey Bay. Thanks very much. CHAIRMAN STRAIN: Thank you, sir. Next speaker, Ray? MR. BELLOWS: Nicole Johnson. CHAIRMAN STRAIN: You couldn't get it down to one page, could you? MS. JOHNSON: Technically, yes. Good afternoon. For the record, Nicole Johnson here on behalf of the Conservancy of Southwest Florida. The Conservancy has reviewed the Dunes' boat dock application, and we believe that in its current configuration the docks are inconsistent with the Conservation and Coastal Management Element, Policy 6.3.2 and 10.6.1, the LDC, Section 5.03.06(J) and specifically Subsection (J)(3), and the Manatee Protection Plan, all of which contain policies to protect seagrass beds. We ask that the application in its current form not be approved because the proposed dock configuration does not protect seagrasses as required by our local regulations. Oftentimes when I come before you talking about wetlands, listed species, water quality, I end by saying, it would be nice if Collier County could really step in on this, but this is one of the areas where the county defers to state and federal agencies, and then I end by saying, of course, we need to put more teeth into our plan to protect local natural resources. Happily, that's not what I'm going to be saying today. Because while the county has deferred its authority on many things, seagrass protection is not one of those. I'm not going to talk a whole lot about seagrasses because we have our Conservancy science director, Kathy Worley, who's going to be going into that subject, but suffice to say, seagrasses are ecologically important and they are among the most productive coastal habitats in South Florida. Many of us think of seagrasses and we think, important manatee habitat. And that's true, but seagrasses are so much more than that, for commercial fishing, for the sea life, for water quality. This gets into our human quality of life issues also. So Kathy will address that in more detail. When we look at how we got our seagrass policies -- and this was talked about a little bit earlier, but I think that it's important to go back and really establish that foundation of our seagrass policies, because in the early 1990s Collier County decided that seagrasses were important and they wanted to study the grass bed issue. In 1992 the county did release a report. It was entitled "Avoiding and Minimizing Damage to Seagrass Beds from the Construction of Docking Facilities," and this report clearly identified seagrasses are important, and it also identified that human activities can negatively impact seagrasses, including the construction of boat docks, the shading of boat docks, and just boating itself with the turbidity that it can stir up. And it did not distinguish between single - family boat docks and multifamily boat docks. It said "docks in general," and that was the basis for the Board of County Commissioners adoption of Ordinance 93 -37 which, at that point, amended the LDC section addressing private boathouses and docks. And it remains in the LDC today, albeit under a different number, and I gave that -- a copy of that language to you. But I think it's important to just pull out a couple of those policies and read them into the record, because I will be talking about them in a moment. And that's LDC Section 5.03.06(J), Subsection 3, under protection of Page 63 of 94 March 1, 2012 seagrass beds. And it states, where a continuous bed of seagrasses exist off the shore of the property and adjacent to the property, the applicant shall be allowed to build a dock across seagrass beds or a docking facility within 10 feet of the seagrass beds. Such docking facilities shall comply with the following conditions: First of all, the dock shall be at a height of at least 3.5 feet NGVD; second, the terminal platform area of the dock shall not exceed 160 square feet; third, the access dock shall not exceed a width of 4 feet; and, finally, the access dock and terminal platform shall be sited to impact the smallest area of seagrass beds possible. And then similar language was later incorporated into the CCME in Policies 6.3.2 and 10.6.1. The question has been raised about, was this ever meant to apply to multifamily residential? Was this just restricted to single- family? And in looking at how these LDC amendments got into the LDC, the Conservancy has read the background material, we've read Fran Stalling's report that was part of the Natural Resources Department report, and it did not distinguish between impacts from single- versus multifamily, and there's nothing in the LDC or the GMP that says it applies only to single- family. So we believe that that's pretty clear. But if that wasn't clear enough, we also have the Manatee Protection Plan. And Commissioner Strain mentioned it, but I think that we need to circle back and mention it again, because in this context the Manatee Protection Plan was adopted in 1995 after this 1993 ordinance was put in place. And in Section 3.2.1, it's very clear that multi -slip docking facilities with 10 slips or more in all commercial marina facilities shall comply with the stipulations listed in the LDC. The guidelines for the construction of boathouses and docks are listed in LDC Section 2.6.21, and that Section 2.6.21 has now been renumbered to 5.03.06. So it's in there. The Manatee Protection Plan is in the LDC by reference. You have to follow the Manatee Protection Plan. The Manatee Protection Plan says it applies to multifamily, so we think that that is extremely clear, it applies. And, of course, this project does consider putting the docks within 10 feet of the seagrass beds. So all of those stipulations under (J)(3) have to be followed. So how does this plan measure up? In the Conservancy's opinion, Condition 1 requiring the height of at least 3.5 feet NGVD, it does that. Condition 2, which is a really key condition, references the terminal platform not exceeding 160 square feet. And there's been discussion about what is or isn't a terminal platform. And I think it's important to, again, reference back to the Florida Administrative Code, because Collier County does not define a terminal platform, but Florida Administrative Code Section 18- 20.003, Subparagraph 67, defines it as that part of a dock or pier, including finger piers, that is connected to the access walkway, is located at the terminus of the facility, and is designed to secure and load or unload a vessel or conduct other water- dependent activities. So it's that part of infrastructure used for securing or docking and loading or unloading vessels which are boats; that makes a terminal platform. And terminal platform includes, but it's not limited to, finger piers. So based on this definition the proposed configuration of the Dunes boat docks is inconsistent with the LDC and the GMP due to the fact that they're proposing docks along that entire stretch of the 1,540 -foot north/south portion of the structure. Condition 3, in limiting the width to no more than 4 feet for the access walkway, ADA is going to supersede, so that's taken care o£ And Condition 4 is the other key condition because it requires that the access dock and terminal platform be sited to impact the smallest amount of seagrasses possible. The Conservancy believes that the proposed boat dock configuration is inconsistent with this portion of the LDC since the applicant has not protected the adjacent seagrass beds through minimization of the length of the north/south part of the structure or by staying 10 feet away from the seagrass beds; therefore, this project as proposed is inconsistent with the CCME, the LDC, and the Manatee Protection Plan. And while we do not believe that any docks along this channel in close proximity to the seagrasses are appropriate from an environmental perspective, if the Planning Commission does decide to find a compromise configuration, we have put forward our suggestion as Attachment 1 to our letter, and I will put that on the visualizer. In this configuration we have, first of all, addressed the issue of removing all of the docks from that terminal platform, the north/south expanse of the boat dock. And, in addition, we have -- and -- so the boat docks would be limited to the northern boat docks as part of the finger piers, and then -- in the central location with boat docks there with nothing along that stretch except the access walkway to get to those northern and southern boat docks. Page 64 of 94 March 1, 2012 In addition, to be consistent with minimization of impacts to seagrass beds, we suggest that the length of the docks themselves be additionally shortened. Kathy Worley, our science director, has indicated that there is a fairly healthy area of seagrasses just outside that bigger Carol Point marina area. So we suggested having the docks cut off in that location, and in that way that minimizes the impact of the boat docks and at least leaves the southern seagrass areas in a somewhat more protected standpoint. Now, yes, our configuration does not allow for 49 docks. It would be somewhere between about 22 and 24 boats. It's significantly less than what is being requested, but any dock configuration has to be consistent with local policy, even if that results in a significant reduction in the requested amount. The Conservancy believes that what we've proposed is fair and a defensible compromise, and we ask that you consider this. And, now, one critical component that I think is going to be coming up in your discussion is the issue of seagrass presence at the time of the SDP or those permits being pulled, and I think it's very, very important for you to understand that going out on October 31 st, or even during the middle of seagrass growing season, looking down not seeing grass does not constitute that there are no seagrasses there. Seagrasses come and go, and just because you don't see it at one time does not mean it is not a viable seagrass bed. So that's very important. Kathy will talk about that later. The second issue that I wanted to address very briefly is the issue of the pump -out station. The applicant is proposing to put this pump -out house or station in the preserve district, which the Conservancy believes is inconsistent with the allowed uses of the Dunes PUD preserve district. If it has to go somewhere, it really needs to go outside of the preserve. So we ask that you consider that. And, finally, I will just say that we echo Tony Pires' concerns about this being insubstantial change. We do think that it creates an additional intensity, and it should go through the full PUD amendment process. And Commissioner Klein actually asked me to condense everything down to a one - pager, and I said there's no way I can do it, but then I decided, well, one - pager, two sides with no margins, I can do that. So everything that I have said I have put into a one - pager, and I will distribute that along with another copy of the map that was in your letter before. And I appreciate the extended time that you have afforded me. And I will answer any questions or go ahead and hand this out if there are no questions. CHAIRMAN STRAIN: Are you providing magnifying glasses with the typeset you've used in that one page? MS. JOHNSON: No. I did use 12 font. CHAIRMAN STRAIN: Okay. Any questions? (No response.) CHAIRMAN STRAIN: Okay. Thank you, Nicole. Leave that with Ray, and he'll see that we get it all. Next speaker, Ray? MR. BELLOWS: The next speaker is Anthony Presh, R -e -s -h (sic). CHAIRMAN STRAIN: It doesn't look like he's here. MR. BELLOWS: Susan Burkhard? CHAIRMAN STRAIN: She's not here. MR. BELLOWS: Hal Linnerud. CHAIRMAN STRAIN: He is here. MR. LINNERUD: Good afternoon. My name is Hal Linnerud. I live in Vanderbilt Surf Colony III on Baker Carroll Point. I have one comment to make, and then I have a question to ask of the commissioners here. My comment is that I do not appreciate the scare tactic on the part of Signature by threatening us with 900 boat slips. They've taken credit for 9,000 feet of shoreline, and most of that shoreline, if you look in through here, meanders through the mangroves. They would never be able to use that for boating purposes and putting slips in. I just do not appreciate that, and I hope you take that into account. Now, my question -- a little more background. Back in the mid 2000s I was president of the Vanderbilt Surf Colony Recreation Association. And in that regard, it was during my tenure that we got permission from this Page 65 of 94 March 1, 2012 organization to put boat slips into our existing marina. We got 16 boat slips approved in that marina; however, to gain that approval, we had to stipulate -- we were forced to stipulate that we would not -- I underline the word "not" -- put any boat docks inside the waterway where we're now talking about putting 49. The portion of the seawall -- I'm talking about a seawall. I'm not talking about mangroves. I'm talking about an existing seawall where we had every right to put boat slips along that seawall if we wanted to, but we concurred to do that to get the permit for the 17 or the 16 slips that we've got now. Why were we forced to stipulate that we would not put boat slips in there when we're now talking about allowing the Dunes to put 49 in there? I don't understand it. And this is a question to you, and I'd like it addressed. CHAIRMAN STRAIN: Okay. Mr. Bianco, July 3rd of 2008, Page 56 of the transcript, your -- Mr. Bianco said of your organization, these three associations went to court to fight to be sure that there would be no boat docks built along the very same seawalls that you're talking about. If as a condition of your approval you believe that each of these three buildings should provide you a letter, I am 99 percent sure we can get that. At the same time Mr. Scofield represented you at this time -- at the time, said these docks are confined to the base, and the owners have no intention of placing box docks along the waterway. I assume that is correct? MR. BIANCO: That's absolutely correct. MR. SCOFIELD: And there will be no more docks along any of the Vanderbilt waterway, and we're willing to stipulate that in this petition. I can give you the transcript on July 3, 2008. You're more than welcome. It's a public record. It's replete with references by your own organization volunteering that to this board, and that's why that board went along with it, and your expert volunteer did. So that's how it got to be a stipulation, sir. MR. LINNERUD: All right. I also have minutes from your meeting where I quote you. I think there were only two members of this commission who were at that meeting. The rest have all been changed. And -- okay, there are three stipulations we've worked out. One is that this boat dock approval is contingent upon the applicant obtaining letters from the three different buildings. There will be no more docks added in the waterfront, and basically that's -- that was a direct quote from you, Mr. Strain. And then you, additionally, followed up with a question from Commissioner Caron, and you said, or the additional recreational area that we're in control of. It was not a matter of trying -- you know, we don't want to have any more docks in there, but we were forced to sign and give away our rights to get the 16 slips that we've got there now. And, you know, for us to sit here and look now at 49 going in, it's a little disheartening, okay. CHAIRMAN STRAIN: I sure stand by the record. Thank you, sir. Next speaker, Ray. MR. BELLOWS: Kathleen Robbins. UNIDENTIFIED SPEAKER: She's gone. Marcia Craver (sic). MS. CRAVENS: Good afternoon. Marcia Cravens. I'm a master naturalist, Florida master naturalist for Coastal Systems. I'm also co- conservation chair for the Sierra Club's Caloosa Group, which is our regional group. And I've done a lot of research here, particularly trying to find the most recent records that are relevant to this petition before you today. And one of the things that strikes me, as I look at the agenda today, is there's a slippery slope of invalid logic that's kind of being put forth here; whereas, you have a request to amend a PUD for the use of that and then you also have a petition for a boat dock extension; correct me if I'm wrong, but I believe those are the two agenda items. But yet your first item for the amendment assumes that the boat dock extension is already a reserved right. But yet I can't find anything in the original PUD or the amended PUD that specifically states that reserved right for boat docks, okay. So I think that's an invalid assumption. So what you have here is an attempt to get an amendment on the PUD to assume a reserved right for the boat docks before you even consider the boat dock extension, and I think that's problematic. And I'd like to just address some definitions. And one thing that I think we're deficient in with our Growth Management Plan, when it was redone as Ordinance 2004 -41, they eliminated some definitions that had existed in the Page 66 of 94 March 1, 2012 previous one, which I think was 7638 or something like that. They used to have a definition for land, and that definition for land used to include that land that was covered with water, being submerged land, was also considered when you were addressing uses. Currently, there is no definition of land. There are some other definitions I'd like to -- if you'd bear with me -- because I think they have some relevance to what's before you. Accessory use or structure. A use or structure located on the same lot or parcel and incidental and subordinate to the principal use of structure. That's not what you're being -- I mean, you're being told to consider a different definition. You're being told that accessory use jumps over the actual parcel or lot and, in fact, it doesn't. Another definition is conservation uses. And that's for conserving or protecting natural resources or environmental quality, including areas designated for such purposes and so forth, or protection of vegetative communities or wildlife habitats. And then when I tried to find a definition of development -- which, again, I think we're deficient in our more recent change to our GMP; however, it is not just a building, meaning house or something, but the carrying out of any building activity or mining operation. The making of any material change in the use or appearance of any structure or land. And so I believe that this is development, what you're talking about here, in allowing this use on the conservation easement. And then, lastly, the distinction between docks and marinas. You were told by the representative here for the developer that this is not really a marina; however, in the definition for 2004 -41, dock is singular. Dock is a structure -- any structure constructed in or over a waterway for the primary purpose of mooring a boat or other watercraft. And then it indicates dock facility, walkways, piers, pilings associated with it. But under marina, a boating facility chiefly for recreational boating located on navigable water frontage providing all or any combination of the following: Boat slips, plural, or dockage; small boat hauling or launching facilities. So I do think that what you're being asked to approve is actually a marina, and that would have to be specified in the PUD or in an amendment to it. And then I'd like to move on to a couple of things. In the amended PUD, 2004 -74, it has some interesting items, I think, that will also help you with your determination. General description of property area: It's bounded on the west by the Baker Point subdivision as recorded, bounded on the north by jurisdictional wetlands, on the east by Vanderbilt Drive, on the south by Bluebill Avenue. The project extends east from Baker Carroll Point on the west and includes part of the manmade waterway on the west to mangrove forest and so forth. So we've established that it does include that portion of that canal. But if you go to the additional sections of this amended PUD in Section 2.1, it generally describes the project plan. When we talked about intensity or density use, residential maximum density uses is 640. Preserve /open space, not applicable. Further, under Section 2.413, Exhibit A, the PUD master plan -- and I have -- there's a map of it. Sorry. That might still be back there. But, interestingly, the map that's in the amended PUD shows preserve as all of that area, and the waterway is a preserve waterway. It's got hash marks. So it shows vegetated area where the mangroves and so forth are as preserve, and then the canal has hash marks on it as preserve waterway. Some questions about whether or not you can use a conservation easement when you're calculating shoreline for docks. That was a hot topic in 2009. It came before you then. It came back before the Planning Commission in 2010. But questions were asked in 2009. Collier County staff, including the county attorney, addressed this. Mr. Lorenz responded to some emails by indicating staff will calculate the shoreline not covered by a conservation easement. And the length of shoreline not within a conservation easement then determines the maximum allowable number of wet slips. There's actually a determination in here by the county attorney, which I believe that Heidi reflected in the 2010 opinion from her, and -- sorry. I'll just -- think it's right here, okay -- from Jeff Klatzkow dated March 9, 2010. It is my opinion that where there is a conservation easement involving shoreline, if there is no reservation of rights in the easement, one, there can be no shoreline development, including boat slips and, two, there are no developmental rights that can be transferred to a different property. Page 67 of 94 March 1, 2012 If a property owner wishes to retain such rights, they must do so by an express reservation in the easement deed. Unless the record indicates a contrary intent, this applies to all existing shoreline conservation easements. Given this, unless there is a different reason for the proposed amendment, I do not see the need to amend the LDC. There is, of course, plenty of time to get the amendment into it, and that was when there was a question whether or not to amend the MPP. CHAIRMAN STRAIN: Marcia, we're running out of time with your portion. Could you wrap it up, please. MS. CRAVENS: And then I would just go to the June 8, 2010, BCC meeting. And in the BCC meeting, they voted unanimously to approve the Planning Commission's recommendation, which was that you would not amend the Manatee Protection Plan; therefore, the conservation easement's shoreline cannot be used to calculate the boat slips unless 50 percent -- unless it's a project that is for 50 percent of public usage. Thank you. CHAIRMAN STRAIN: Thank you. Next speaker, please. MR. BELLOWS: Barbara Lymangood. (No response.) CHAIRMAN STRAIN: Next one, Ray? MR. BELLOWS: Diane Ketcham. Jerry Ketcham. MS. KETC14AM: Jerry Ketcham has gone boating. CHAIRMAN STRAIN: What channel? MS. KETCHAM: Good afternoon. My name is Diane Ketcham. I know some of you on the Planning Commission from my years as president of the Vanderbilt Beach and Bay Association and later president of Save the Vanderbilt Beach. I retired from being a civic leader. Some of you are still here working on our behalf, and we greatly appreciate it. This has really been a very informative -- I know we all feel very positive of how much thought you're giving this today. So I retired to enjoy paradise, but now what you have before you, I believe, is such a blatant misuse of county regulations and such a disregard of environmental considerations that I felt compelled to be involved in one more county issue, and I do hope this is the last one. I've lived on Vanderbilt Beach so long that I remember when the Dunes actually had a dune. A cliff of beautiful white sand was on the southern border of what is now the Dunes complex. That's how it got its name. But the dune was removed by the developers to give them more land to build on. One thing, however, that they couldn't remove or build on was the mangrove forest that borders the west side of this development. Those mangroves and the seagrass nurtured by them are an important part of our waterside neighborhood. They preserve an environment necessary for our wildlife, our fish, shellfish and, perhaps most importantly, our manatee population, the manatee, an endangered species, protected by Collier County with its Manatee Protection Plan. The last few years have been the worst in manatee deaths in Florida since records have been kept. In 2011 the most boating accidents, deaths of manatees, occurred in Lee County, which is just to the north of us, and now in an area where the threatened manatee feed, give birth to their young, a developer's proposing a 49 -slip marina with a pump -out station and 35 -foot long boats. What will that do to the fragile environment of our Vanderbilt Lagoon, and what will that do to the manatee population which you, as county officials, are required to protect? The Manatee Protection Plan offers ratings or ranks of waterfront areas that need to be especially protected from overdevelopment. The criteria are water depth, impact on marine habitat, and impact on the manatee population. This proposal would put 49 boats between the manatee and its feeding area. It would destroy seagrass by dredging and erecting boat docks. It is also in an area where the water depth is very shallow. This puts the project in the extreme, as far as I'm concerned, protective rating on your Manatee Protection Plan, and that would mean one boat per 100 feet of shoreline, not the 7 or so that this proposal asks for. We ask that you closely look at this before approving what could be so detrimental to the coastal environment and so unsafe to the boating population that would have to pass by 35 -foot boats backing out of a 60 -foot channel. I haven't done this in a long time, so we're just -- you tell me. I don't know quite how it goes. This, as I Page 68 of 94 March 1, 2012 understand it, is the developer's scale of showing you what they're doing. And if you look at it, it isn't in scale at all. The boats that are down here -- whoop, am I doing it -- these three boats that have been the talk today, those boats are, like, 22 feet in length. I think one is only 18. Now look across at what the developer says are 35 -foot boats. There's no way that there's any scale. We are boaters. We live down -- further down on the channel on the bay. We have a 30 -foot boat. For my husband, who is a seasoned boater, to back out of that -- our slip, we have to go all the way out 30 feet. If the wind is blowing, you can't go sideways. Look at the poles -- the back of this pole -- CHAIRMAN STRAIN: Ms. Ketcham, you've got to stay near the microphone, because the recordation doesn't pick you up if you don't. MS. KETCHAM: Oh, I'm so sorry. Okay, okay. Anyway, there is a back pole. You have to back all the way out of the pole before you can make a turn. That means at least 70 feet. That means they're going to be in the middle of the channel. That means kayakers, be prepared. That means, as has been discussed, if there's any wind at all, there's no way they're going to control exactly how far they're backing out. Also, who supports this project? We certainly know the developer supports this project. They want to sell the boat slips to some of the homeowners there, and certainly there are homeowners within the Dunes that support this project, but there are 600 homeowners in the Dunes. You have heard person and person and person come forward today, and you'll here more, of people who are concerned about this project. I'm not seeing a great amount of Dune people come forward. So I'm not as sure -- because they're only 49 docks -- and I have spoken to Dune (sic). As president in the past, I know a lot of Dune owners. There are people in the Dunes that do not support this project, because they're not going to get a dock and they like keeping the area pristine. So I think it's time Collier County -- it is good government to allow a profit for a few at the cost of hurting the environment for thousands of both people and marine life? Is this a project that is in the public interest? No. Is this a project that is -- has an unsubstantial change to the current PUD? No. Is this a project that the Manatee Protection Plan should allow? No. So I ask you to say no to this project. Please, help us save the waterways of Vanderbilt Beach. Thank you. CHAIRMAN STRAIN: Thank you. And before we go any further, Ray, it's -- I'm watching the two court reporters. Now, Terri's in the lead, as far as getting everything. So -- but I can tell we need to get to a break. But real quick, before we do, does anybody on this Planning Commission think we're going to finish this hearing before five o'clock today? I don't either. And the problem I have is there are other people here on other cases. I just wanted to give them a heads -up as early as I could. Mr. Corradi, we have to ask you to come back on Tuesday. We will continue this until the 6th, I think -- I think that's Tuesday -- when we get to that point today, and SSP -- Michael Fernandez, I don't believe he's here, but we're not going to get to his today. The only one I would like to try to get to is Plantation Island, if the gentleman's here, because I heard he had to fly in from an outside area for this meeting. Is he here? MR. BELLOWS: Yeah, he's here. CHAIRMAN STRAIN: Okay. Just from the board, do you have many issues with the Plantation Island application? It was the one right after this one? Okay. Richard Yovanovich. Okay. Rich, would you mind, when we come back from break, if we pause to do Plantation Island -- it should be short -- and then jump back into the public speakers for yours? MR. YOVANOVICH: The only request I have -- and the answer's, no, I don't mind. CHAIRMAN STRAIN: Okay. MR. YOVANOVICH: I really do need to finish the petition, our petition, today. CHAIRMAN STRAIN: I don't think Plantation Island's going to take more than 10 or 15 minutes. MR. YOVANOVICH: I know that, but I'm just -- CHAIRMAN STRAIN: We'll do our best. I mean, I've already talked to K.D. about staying later. She's acknowledged it. But we're only going to stay later for yours. We're trying to get -- because we can -- everybody else is local, and this other gentleman had to fly in, so we're trying to resolve it. MR. YOVANOVICH: I understand. No, I'm happy to help him. Page 69 of 94 March 1, 2012 CHAIRMAN STRAIN: Okay. Let's take a break till 4 o'clock. At 4 o'clock we're going to resume, but with Plantation Island, which shouldn't take very long, then we'll go right back into public speakers. (A brief recess was had.) CHAIRMAN STRAIN: Everybody, if you'd please take your seats. We're going to change gears real quick here just for a short period of time. I appreciate the applicant for the Dunes two applications cooperating on this matter. * * *We have another petition for a variance. It's for Lot 80 on Plantation Island. It's VAPL2010 -2285. All those wishing to testify on behalf of this item, please rise to be sworn in by the court reporter. (The speakers were duly sworn and indicated in the affirmative.) CHAIRMAN STRAIN: Are there any disclosures on the part of the Planning Commission? (No response.) CHAIRMAN STRAIN: Okay. Hearing none, the presentation by the applicant? Looks like you got elected, sir. MR. WU: My name is Richard Wu, architect. I'd like to thank the commission chair and the ladies and gentlemen for allowing me to speak -- interrupt the other hearing. Hopefully mine won't be as controversial. CHAIRMAN STRAIN: You never know. MR. WU: I represent Mr. Robert Beedie (phonetic), who's the landowner for Lot 30 on Plantation Island. It's a mobile home community out on the other side of Everglades City. And when I went to the preapplication meeting with the Collier County staff they advised me that we had to go through a variance process in order to remove some of the mangrove cover on the property in order for us to build the structure that we had proposed. You can see on the site plan that we have up there the shaded area shows the mangrove portion that we want to remove. The property now is a corner lot. It fronts on Plantation Drive. And since it is a corner lot, the dotted line on this plan shows the restricted area that's caused by the setbacks. We have two front yard setbacks on this property. So to put a small modular home on the property, we're pretty much restricted to where we can place the building. And right now the property is -- a portion of it is in exotics, which have to be removed, and the back portion of the property, which is -- has the mangroves along the canal. We're proposing to remove a small portion of the mangrove area cover within the guidelines of the -- your plan, which allows up to 2,500 square feet of removal of mangroves. Our removal percentage is -- I think we're about 2,000 square feet that we're asking for so we can place the structure on the property. Basically, my design encompasses a pier foundation, because the modular home, which the owner will purchase, will have to be raised above the flood area, of course, so -- CHAIRMAN STRAIN: I think, sir, we probably reviewed the packet thoroughly, all nine of us, so we -- and it's a pretty straightforward application. So maybe if you have any other pertinent information we can move on to the staff report. MR. WU: Sorry. I can't -- CHAIRMAN STRAIN: I'm sure we all have reviewed the application. It's pretty straightforward. I think we understand what you just said, and if you have nothing else, we can move on to questions and then to staff report. MR. WU: Well, I think it pretty much covers it. Yeah, I think the application covers pretty much what we're asking for, just for approval to grant the variance to remove the mangroves so the home can be built for the owner. CHAIRMAN STRAIN: Okay. Is there any questions of the applicant? MR. WU: Thank you. Is there questions? CHAIRMAN STRAIN: Nope. You're fine unless -- let's get staff report. Thank you, sir. MR. WU: Thank you. MS. GUNDLACH: Good afternoon, Commissioners. For the record, I'm Nancy Gundlach, principal planner with the Department of Land Development Services. And staff is recommending approval of this variance petition in front of you today. CHAIRMAN STRAIN: Okay. Nancy, I think, for the record and for the members here that are new, because this is Plantation Island, this is a result of a settlement agreement between Collier County and the State of Page 70 of 94 March 1, 2012 Florida Department of Community Affairs in regards to how -- this is a previously established subdivision that was in the ACSC, and because of that, it has the -- they took a different view of this and allowed up to 2,500 square foot per previously divided lot to expedite the process, and that's different than your regular guidelines, so -- MS. GUNDLACH: Correct. CHAIRMAN STRAIN: Okay. I just want to make sure -- that's why this is being asked. It's a unique process. I think it only applies to Plantation Island, if I'm not mistaken. MS. GUNDLACH: As far as I know. CHAIRMAN STRAIN: Yeah. In fact, this was requested by the Board of County Commissioners to be settled with the DCA quite some years ago. Ray, and we have -- MR. BELLOWS: One speaker, Harold Hall. CHAIRMAN STRAIN: So Harold's going to upset the apple cart, okay. MR. HALL: No, I'm not. CHAIRMAN STRAIN: I knew you wouldn't, Harold. It's good to see you again. MR. HALL: Harold Hall, 1082 Rainbow Drive, Naples, and owner of Lot 17, which is on Plantation Drive, which is about 500 feet from the subject lot, Lot 80. Lot 80 is the corner lot, as he said. I'm very familiar with that lot. Have been for years. I previously lived on Plantation Drive on Lot 39. Now, Pm recommending that you approve this quickly. Nancy has obviously done a good job reviewing everything. But bear with me, I'd like to take just a few minutes. I want to make seven points, and I'm going to start with the last point in case you cut me off, Mark. By the way, these -- CHAIRMAN STRAIN: Have I ever cut you off? Harold, that's not nice. MR. HALL: These tears -- I've got an allergy. I'm not crying because I'm here with you folks. CHAIRMAN STRAIN: Well, I would be after waiting all day. MR. HALL: But at any rate, the -- I want to point out six things that's happened, and I'm going to tell you what that seventh thing is right now. The seventh thing is, on Lot 17 I'm paying taxes on $60,000 assessed value for taxes on a lot that is practically worthless because it's completely covered with mangroves. How did we get there? I'll tell you. 1988 -- CHAIRMAN STRAIN: There's some relationship to this application, right? MR. HALL: Yes, there is -- CHAIRMAN STRAIN: Okay. MR. HALL: -- because what I'm wanting you folks to do -- these things are going to come up. As Nancy's pointed out, this is this arrangement, this agreement between the county and DCA, and everything comes up on Plantation Island you're going to have it, and we're going to have more of these. You've already had one or two. 1988 the county realized that the Future Land Use Map didn't show Plantation Island on it even though there was probably 50, 70 residences on it. The county had used a real old Department of Highway's map. The county, realizing this -- Charles Goodier (phonetic), some of you remember him. He was the principal planner -- took the steps, revised the Future Land Use Map, put Plantation Island on it designated urban. Now, we realized at that time that DCA had it in the area of state critical concern. I talked with DCA, two different people. Obviously, they had and they told me they used the same old map; Plantation Island wasn't on it, so they included it in the area of state critical concern. Now, come forward to, I guess, four years ago, DEP approved a clearing field application. DCA didn't object, so the owner paid about $8,000 mitigation, cleared it, filled it, the county turned down the building application, made him take all the fill out and haul it off. Litigation followed, so the county and DCA met. DCA agreed to take Plantation Island out of the area of critical state concern. I assisted the County Attorney's Office in this developing the legal description for it. Conservancy was interest in this, and old sharp -eyed Nicole -- where is she -- she saw a big real estate transaction in the area so she wanted to make sure that it wasn't in this area they're going to remove. Well, it wasn't. It was east of Plantation Island. But at any rate, they ended up then people realizing -- and by the way, even this lot owner thought that this had all been cleared up. DCA backed out of the arrangement, but it's too late. Already a lot had sold for 60,000, one Page 71 of 94 March 1, 2012 for 70,000, and I heard one for over 100,000. And then they find out that the DCA had backed out of it. The DCA and the county agreed to this arrangement that brings him here today. You can't install a mobile home on probably 800 to 1,000 square feet, and that's how much area that you have if it's a mangrove covered lot. By the way, these mangroves are all second growth, but second growth mangroves can be very productive, so they should be protected. We all agree on that. Okay. The end of it is I've got Lot 17. I've managed to get the assessed value down. I started paying taxes on 60,000, got it down to 30,000. I think if everything has gone okay, that I'll get it down to 10,000, but it's still practically worthless. So that's my story. You folks think of this every time one of these things come up to you. DCA, I'm unhappy with them, I'm a little bit unhappy with Commissioner Coletta that he didn't advise me of this revised arrangement, which the County Attorney's Office -- I'd worked with them. I wish that they let me know that the deal didn't go through that was changed, or maybe I could have prevented some of those sales of 60 -, 70 -, 100,000. Thank you very much. CHAIRMAN STRAIN: Harold, thank you. You've made it a brighter day for us. We appreciate it. MR. HALL: I intended to do that. CHAIRMAN STRAIN: Thank you. MR. HALL: Thank you. CHAIRMAN STRAIN: Are there any other speakers on this item? MR. BELLOWS: No other speakers. CHAIRMAN STRAIN: Okay. Does anybody from the Planning Commission have any questions of anybody? COMMISSIONER SCHIFFER: I have a motion. CHAIRMAN STRAIN: Well, before you do, I have one disclosure I forgot to mention. And during one of the breaks, a lady who was waiting for this, Kay Farlin Britt, wanted to tell me that she is a neighbor to this area, and she's very in favor of this project, so I told her I'd make that mention. So other than that no disclosures. Go ahead. Oh, I'll close the public hearing, and -- COMMISSIONER SCHIFFER: I move we forward VA- PL2010 -2285 with a recommendation of approval. COMMISSIONER AHERN: I'll second. CHAIRMAN STRAIN: Second by Melissa. Discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER VONIER: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER AHERN: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER EBERT: Aye. COMMISSIONER KLEIN: Aye. COMMISSIONER BROUGHAM: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 9 -0. Thank you all, and that -- I guess -- I tried, Melissa, to make your record of doing a quick one, but it still took 15 minutes. COMMISSIONER AHERN: Not looking good. CHAIRMAN STRAIN: Okay. We left off with public speakers on the Dunes dock application. We're going to move back to that, and we're going to stay as late as we can today. MR. BELLOWS: We had three individuals withdraw their names, so we're down to two. CHAIRMAN STRAIN: Okay. Kathy Worley, and Donald Savino. Page 72 of 94 March 1, 2012 MS. WORLEY: Hi, good afternoon. CHAIRMAN STRAIN: Hi. MS. WORLEY: My name is Kathy Worley, and I'm the director of science for the Conservancy of Southwest Florida. And I just want to take a moment to speak for something that can't trot on down here and testify in front of you -all, and that's the seagrasses. Seagrasses were historically present in Water Turkey Bay, and regardless of whether the channel is manmade or not, it's the only remaining section in the Vanderbilt Lagoon/Water Turkey Bay area that still has seagrasses. And they're known as a keystone species in estuaries. They're an important part of the base of the food chain. They provide sustenance for a lot of different species, including the manatee, which you've heard a lot about probably, and they also provide shelter for a lot of our shellfish, fish, species like shrimp snook, mullet, redfish, pompano, spotted sea trout, all of which are important, not -- some commercially and some recreationally for people in the area. And these species use seagrass usually for some portion, if not all, of their lifespan. So the species of seagrass generally found in the area of the proposed docks is called shoal grass. Now, this species is not the type you've seen on TV where it waves around in the water. It's not that species. It's the species that is very close to the sediment, usually only gets more than, you know, an inch, maybe two if you're lucky, above the sediment. And it has a couple of interesting characteristics. First of all, it's ephemeral. And what I mean by that is it's not around all the time. You might see it one year, and then you don't see it the next year. You can think of it kind of like it goes into hibernation or dormancy for a while and then picks up and grows out when the conditions are favorable for it. It's very picky. It only likes to, you know, stick its little blades out when it's got the correct salinity and a lot of other different -- temperature and a lot of other different characteristics. And the second interesting characteristic is that these beds in this area, and others like Clam Bay, this species, its extent and where it is, how dense it is, whether it's patchy or in, you know, big clumps or, you know, contiguous, it changes. It's not the same size -- the bed is not the same size or configuration from year to year, if it's there at all one year and not the next. The seagrasses that we and others like Tim have found over the years exhibit both of these characteristics. They're not around all the time, and they also -- they aren't in the same areas all the time. They're in the same general vicinity. And where we found them to be more denser over the years has been from the area at -- what do they call it? I had to write this down because I couldn't remember it -- Baker Carroll Point boat basin and south to the bridge. That's where it's typically been denser. And another thing -- one thing that kind of concerned me that I heard today was that what -- whatever -- the statement that was -- something went like this, whatever seagrasses are present when the building permit is pulled could dictate future actions or something like that. And because -- it is really important that you not look at one day for a survey or even one week because it might not be there. It might not be there that year, but it could be there the next. The seed source is still there buried in the sediment getting ready for when it, you know, thinks it's right to come out. So -- and also you -- generally when I do a survey, I only do it in June or July because that's usually when, typically, the conditions are best for blooming and when you typically find it. So, you know, you need to look for it during its growing season, and you need to look at it not just one time and take that as, okay, there's nothing there, because it might be the next year. Seagrasses have been found in marine environments, shallow marine environments for over a hundred million years. They've persisted in face of climate change and changing seagrass levels; however, in the last hundred they've declined. And most of this is due to manmade alterations to their habitat or near their habitat. And because these changes take place rapidly, the seagrasses don't have time to adapt like they can to sea level change and other types of environmental changes that occur. So boat docks are one of the human alterations that can be detrimental to seagrasses. Since seagrasses require one thing, I'll just mention -- they require a lot of things, but one of the most important in regards to this issue here today is light intensity. They're generally more robust in areas of open water -- open shallow water where you don't find shading. Now, since light availability is necessary for seagrasses to thrive, any structure that blocks the sunlight from open water, including docks, decreases that light availability. Page 73 of 94 March 1, 2012 Now, the proposed area already has some decreased light availability due to the shading effects from the condos across the way. And the installation of docks in close proximity to seagrasses, even 10 feet, is -- it's only going to exacerbate the problem. It's just really not a good idea to put structures next to seagrass not only because of the light, but because of the dredging that is involved in putting in docks generally. Seagrasses don't like turbidity either, and you can basically smother them, if you want to think of it in a human term. Anyway, so putting boats that close to seagrasses is basically -- can be a recipe for disaster since it increases the likelihood of stirring up the sediment, which could then cover the blades, and also it decreases -- docks decrease light intensity. And then there's also the consideration of crop rot -- prop washes from when these boats all start up. I mean, you know, not all boat water -- boat people are conscientious about the environment that they're around. And if you rev that engine good enough and you've got a, you know, two- and -a -half, three -foot draft, whatever draft you've got, and it's a low tide, you're going to stir up the sediment that is right next to those seagrasses. And, of course, it's going to create an obstacle course, these docks, for any manatees that wants to utilize the area. Although I would recommend that you avoid putting any structures of any kind close to this area where other seagrasses are, if docks are allowed to be built, all efforts should be made to limit the extent of the project and keep them -- keep at least, at the very least, the southern areas south of that opening of that point clear of any docks, because this is the area where the seagrasses have been typically more robust. And remember that this is the last remaining stretch of seagrass in that area. And, you know, a lot of people say -- you know, you think about, well, if we impact it we'll mitigate. How can you mitigate? You can't. You're not going to get seagrasses back in Water Turkey Bay. It's been tried. And this is the only place where they seem to like it. And I'd just like you to think about protecting this from even potential harm when you make your decision. So thank you for listening, and I'll let you go with that. CHAIRMAN STRAIN: Well, before -- there's some questions. Bill? COMMISSIONER VONIER: Do we know why the seagrasses no longer are in Water Turkey Bay? What caused them to disappear; do we know? MS. WORLEY: There's several speculations. One of them was when they moved the channel. The channel didn't used to be there. It used to wind along the outside near the mangroves is where the natural channel was and where it was deeper, and then they dredged through the center, and they've made a big, silty mess. That's been one speculation. It's never been proven what exactly caused that death, but they have not come back in over 10 years, which signifies that they're not going to most likely. COMMISSIONER SCHIFFER: Question. CHAIRMAN STRAIN: Hold on second. Don't run off so quickly. Brad? COMMISSIONER SCHIFFER: Have you reviewed what's happening on the water with the riprap and that -- what they're doing there? In other words, where they're dredging out, they're putting riprap to keep the soil, which would be where the seagrass is, from slumping in. MS. WORLEY: From what I understand, it -- and Tim can answer this if I'm incorrect. The area that you're considering dredging is not the area that has any seagrasses next to it; is that correct? MR. HALL: It runs actually -- you know, the area we're dredging goes along the bed, that whole area where we've defined that they could be. So like, you know, at any given time, there could be seagrasses there when we're dredging. There aren't, you know, now but there could be. MS. WORLEY: It's just not a good idea. COMMISSIONER SCHIFFER: He's dredging west of the whole seagrass bed; isn't that right, Tim? MR. HALL: Yeah. All of the dredging is going west of it. There's none of it in the bed itself. COMMISSIONER SCHIFFER: Right. But the point is is you're going along the whole thing, from the drawings you have here. MR. HALL: Yeah, I believe most of the -- along most of the dock area. MS. WORLEY: You'll be dredging? MR. HALL: Right. Page 74 of 94 March 1, 2012 MS. WORLEY: You know, again -- you know, dredging, you know, you can put a lot of things in place, turbidity curtains and things like that to try to keep down the siltation. But the fact of the matter is is you're going to get some in there, and it just depends on the extent and how careful they are when they dredge. CHAIRMAN STRAIN: Any other questions? I have just a couple. You said there used to be a lot in Turkey Bay. Now, this waterway is not part of Turkey Bay. Turkey Bay is just to the north of it. So now there are none in Turkey Bay. MS. WORLEY: Correct. CHAIRMAN STRAIN: Okay. So you said the last remaining colony is where this project is -- happened to go, and you said specifically the south end is more robust. How do you know that? MS. WORLEY: Several surveys over the last 10 years. So, I mean, like I said, some years it's there, some years it's not. But typically when we found patches in that general area, and other peoples' reports, it's been denser south of that in the southern area -- CHAIRMAN STRAIN: I know where you mean. MS. WORLEY: -- opposite. CHAIRMAN STRAIN: Nicole provided a graphic. MS. WORLEY: Yeah. CHAIRMAN STRAIN: Who did the surveys? MS. WORLEY: We -- several different people. I did them. I did some. CHAIRMAN STRAIN: Okay. MS. WORLEY: Tim did some -- are the ones that I'm referring to. CHAIRMAN STRAIN: So your own personal discovery during the survey verifies the robustness of those seagrasses south of that area. What are they like north of that area? MS. WORLEY: Patchy. But I agree with Tim in that the tip on -- it's sort of off the -- CHAIRMAN STRAIN: Yeah, I know where you mean. MS. WORLEY: The tip is generally not -- does not have any. Where it enters Water Turkey Bay, I've never seen any there. Maybe Tim has, but I have not. CHAIRMAN STRAIN: Are the areas that are patchy, or in the area that's robust, too, I'm assuming, though, that all those areas are viable, potential seagrass beds. MS. WORLEY: Yeah. They're viable, potential. CHAIRMAN STRAIN: Okay, thank you. Anybody else? (No response.) CHAIRMAN STRAIN: Okay. Next speaker, Ray? I think you said you had two. MR. BELLOWS: Oh, Donald Savino. MR. SAVINO: I must be the caboose. CHAIRMAN STRAIN: Pardon me? MR. SAVINO: I'm the caboose. The last one. CHAIRMAN STRAIN: Maybe. We'll see. MR. SAVINO: Well, my name is Donald Savino, and my background is construction. And what I'd like to talk about is completely -- this is a new one -- is the seawall across the way with all these boats. I've got 40 years of building and repairing seawalls up in the Boston area. Okay. There are 667 units on Baker Carroll Point, and we're going to -- for that we're going to sacrifice and try to put in 49 boat docks? Now, in this proposal, the bulkhead on the west wall is 35 -plus years old. It's getting old; it's tired. With all this backing, turning, and shifting, it's going to do a lot of impact. The impact on that wall is going to be devastating. I've been to a couple of the meetings that the developer had, and all the discussion is about the mangroves, which is great, the corpuses, the manatees, which we enjoy anyway, but no one seems to want to look across the bay, the channel, at what impact it's going to have on that 700 -foot wall that Surf Colony III owns. And it's going to be drastic. In other words, they're going to put a greater expense on our shoulder with those 44 (sic) boats. And a good point was made, are they all seamen? Mostly, no. A lot of them aren't. They shouldn't even being driving a boat. And they're going to be putting a lot of hydrostatic pressure behind our wall, because of that Page 75 of 94 March 1, 2012 water -- when the water -- the wave action goes into that wall. Most of that action is underground. That wave action is a hydrostatic water building the pressure up, and that's also on the backside of the wall, because the water in front of that wall is the same as in the back of the wall. So that wall is almost like it's floating in muck, and those are not seawalls. They're bulkheads. They're 6 inches wide. They're panels that are pitched down into that muck. So -- this is going to be short anyway. The stress on that wall is going to be bad. If -- the size of this project, it's a quarter of a mile long. There's this 44 boats. All those boats back -- they're pushing all those boats back to the west. Boats coming in and out are going to be up against that seawall, and that's going to make a lot more pressure on the seawall. Now, the way I see it, we're going to -- we're going to incur a lot of expense down the road if those docks go in. Now, if they're going to do something like that, then they should do something to control that water of pushing all that into our seawall. So with that, I would like to thank you people, you gentlemen and ladies, for the opportunity to speak on this one thing that nobody's discussed all night, and I appreciate the opportunity that you gave me. Thank you very much. CHAIRMAN STRAIN: Thank you, sir. Ray, is that the last register public speaker? MR. BELLOWS: That's correct. CHAIRMAN STRAIN: Is there any other members of the public who have not spoken that wish to speak on this issue? Sir, come on up and identify yourself. Ask that you limit yourself to five minutes, please. THE COURT REPORTER: Were you sworn in? MR. HAJEK: Yes, I was. In fact, I did register, so I'm unclear as to why you didn't have my ticket this morning. My name is Brian Hajek. I live at Surf Colony II. And I -- really I think almost everything's been said, so there's not very much for me to add. I would like to say thank you very much for all of your difficult questioning, I think that you've done today, and for following this through so completely. I have just a few items. There was a recreational boating characterization of Collier County that was done in August, or published in August of 2009. I don't know if you've seen that, but I did find in it that the Wiggins Pass area was one of the most crowded areas for boating in Collier County already. And so now in this channel, as has been said many times today already, you're going to add 49 boats. And I'm very concerned about safety. I think safety is the primary concern that we should all have here. The boats are coming out 50 feet, roughly, 200 feet, coming out 25 percent of that. They will back up, it's been said, I think, about 53 feet further. My understanding is that the channel comes off the center of the bridge. It's been 62 feet wide, and so these boats are going to be coming into the primary channel. I have kayaked in this area. I do not have a lot of experience kayaking, but I have been out there. And we have been passed by boats going very slowly. And while those boats were going very slowly, there was a lot of wake. And, you know, we just really had to steady ourselves very carefully. So I'm concerned about kayakers being out there. If you put two kayakers -- two kayaks side by side -- a kayak is, what, two feet, three feet wide at the very most, but you have paddles, and kayakers are probably going to be 12 to 15 feet apart in general just to go down there. And then you add in the boats filling this channel further, and it becomes a very congested area, especially if you take 25 percent of it away. Backing a large boat -- Dick Palin earlier talked about this -- out of a boat dock, it's kind of like backing a Miata or -- out of a parking lot where you have a couple of SUVs on both sides. You cannot see what's on both sides of you from the front of that boat. And if you have a kayak or I've heard manatee always mentioned in that channel -- and we have seen a lot of manatee there -- they cannot be seen. Another concern that I had is that I understand that there's a benefit for the common good of these boat docks going in. It was stated that the land underneath the water is going to be given back to the state, and the state will be paid a land lease. And 11,000 square feet of space is going to be leased at a cost of -- to the developer of -- or to the association for the boat docks of 15 cents a square foot. That calculates, by my calculator, to $1,650 a year. I have $10. I'm sure I can find another 164 people on Baker Carroll Point who would donate $10 per year to help cover that $1,650 per year. Page 76 of 94 March 1, 2012 Another question that I have is how badly are these docks needed? I understand there are three times the number of people in the Dunes who have signed up for these docks, but there are also, I understand, a lot of empty docks just sitting about a mile up the way near the Wiggins Pass Bridge. And if there are a lot of docks there, that's a pretty easy drive for the folks at the Dunes to drive up to. And thank you again. Appreciate the opportunity to speak here today, and I thank you for your consideration. CHAIRMAN STRAIN: Thank you, sir. Okay. I think that wraps up all the public speakers. COMMISSIONER EBERT: There's one more. CHAIRMAN STRAIN: Oh, unregistered. I don't know. She's -- I mean, she's an unregistered type. I'm not sure about her. MS. CARON: I'm sorry. Donna Reed Caron, for the record. I'm sorry, but earlier this morning you said that you didn't have to register, so -- CHAIRMAN STRAIN: I did. MS. CARON: -- I didn't turn in a slip. CHAIRMAN STRAIN: I already asked if -- but I asked if anybody wanted to speak who hasn't. I didn't see your hand go up, so I missed you. MS. CARON: Oh, yeah. I did raise my hand. CHAIRMAN STRAIN: Sorry. But just so the rest of this board knows, Donna used to sit on this panel before Bill was put on, so she's well aware of our rules and regulations. So it's good to see you again, Donna. MS. CARON: I'll be very brief. The attorney for the affected citizens, Mr. Pires, has filed a thorough and compelling brief asking you to refuse to hear the matter until such time as the application can be made compliant with the county land development rules and well established concepts of procedural due process. And I would concur with that. Obviously that's a debatable thing that we -- that you'll get into in a minute. Mostly I'd like to talk about the boat dock extension that you've been offered today. As it stands currently -- and I know that Nicole put up a plan. But as the petitioner's plan stands currently, it is not something -- I don't believe it's something that you can approve. I don't think it meets criteria -- Primary Criteria No. 1, because the current plan doesn't conform to either the CCME or the LDC. It doesn't meet Criteria No. 2, Primary Criteria No. 2. The petitioner claims that from mangroves to the seawall it's a navigable channel, so he really shouldn't have to be doing any dredging in this area. Number 3, whether the proposed dock facility may have an adverse impact on navigation. If you look at the plan that's up there now, I think that the docks to the very south create, potentially -- and that's what the code says here -- may have an adverse impact. I think it clearly shows that it's probably going to have an adverse impact, having the docks way down toward the bridge backing into that narrowed point of channel while people are trying to get under the bridge. So I really think you should consider that in your discussion. Number 4, whether the proposed dock facility protrudes no more than 25 percent. The plan does not, as it currently stands, and it certainly can't in order to stay away from the seagrasses. For the secondary criteria, my biggest concern is 5, and that, again, gets to the seagrass issue. I think we have to be very careful with these seagrasses. The whole estuarian area back there is very fragile, and the more intensity of use we put on it, the worse it gets for the mangroves, for the seagrasses, and for the fish and the wildlife that are trying to -- that make that their home. If boat docks are considered, I want you -- I would like you to stipulate that the boats have to be on lifts. That is not part of their plan right now. That's just an option. I talked about safety under the bridge. And I think, again, limiting that plan, the goal of any of our variances and -- is to minimize all impacts, whether that's to navigation, whether that's to seagrasses, whether that's to the length of the boats you're putting out there. All of it should be the very minimum that you can possibly make it. That's the way the code is set up. And I'll leave it at that. Most everything's been discussed, and I know that you will spend a good -- a long time discussing everything thoroughly. So thanks. CI IAIRMAN STRAIN: Thank you. And we won't be spending too long, but we'll give it the best shot. We have -- we've got till ten minutes of six, by the way. I want to let everybody know we have to be out by then. There's Page 77 of 94 March 1, 2012 another meeting coming in at six o'clock tonight. Normally we break at five -- COMMISSIONER EBERT: Yes. CHAIRMAN STRAIN: -- but I figure if we can go an extra hour and get done today, we need to get done today. So with that in mind, I believe that's the last public speaker. I think everybody else that wants to speak has spoken. If I'm wrong, please raise your hand. Okay. Richard, do you have any rebuttal? MR. YOVANOVICH: I do, and I ask your indulgence. I would like to -- I think we need to clarify some of the statements that were made by some of the speakers regarding the prior history of this PUD. And, most notably, I think I heard Mr. Burkhard say that when the PUD was adopted in 2000, the residents had no idea that boat docks were going to be part of this petition, part of the PUD, and that's just factually not correct. And I want to from (sic) you the minutes in front of the Planning Commission, because Mr. Lydon -- we all know Dick -- most of us know Dick Lydon. He was the president of the Vanderbilt Beach -- I think it was called -- Residents Association at the time. Yes, Vanderbilt Beach Property Owners Association, I'm sorry. He got up and spoke in front of the Planning Commission on November 2, 2000, when this very PUD was going through the process. And he said, quote, in this PUD we have on Page 3 -1, Item 3.4, boathouses and docks. This area that they are building in Turkey Bay is classified as Outstanding Florida Waters. There was no provision in this PUD, period, as to where these boathouses and docks may take place. We would like -- there's no indication of how many. There isn't a question -- it's not a question, you understand, of where or how many or anything of the kind. We would like to see this taken from the PUD and ask that they would be returned -- that the developer return to the commission and to the Board of County Commissioners for a secondary approval, if you will, of any boathouses or docks. That was taken out of the original PUD. We think we're being responsive in requesting that that be left out. Let them come back and request their boathouses, their docks, and show us where they're going to be so we would have an opportunity to see that impact. Now, that's Mr. Lydon coming in asking the Planning Commission to take out the very provision we're relying on today to move forward on the boathouses. The Planning Commission did not agree. It went to the Board of County Commissioners with the boathouse and boat dock provision in the PUD. Mr. Lydon didn't give up. He attended the BCC hearing and, again, asked the board to -- I'm sorry -- take that out. The board did not take that out, left it in as an accessory use. And it says on Page 190, Mr. Lydon, in response to the boathouses, it says, yes, it's in the -- it's in the PUD as an accessory use. And -- and my response to the Planning Commission is the same question. That entitlement applies to all residential -- all residential property. Now, when he was saying Planning Commission, it was actually the Board of County Commissioners. So -- and, again, he talks about they own all of Turkey Bay, they have considerable frontage. Now, in the Land Development Code we also have a provision that says for every 100 feet of lineal -- of lineal waterway, you're entitled to so many docks within a multi - family -- multiple family project; however, still consistent with the provisions of the Land Development Code, that no dock -- no dock configuration may protrude more than 20 feet. So the Board of County Commissioners asked the representative of the property owner to get up there and answer Mr. Lydon's questions regarding the number and the location of the docks, and the number was no more than 60, and they would stay out of Water Turkey Bay. So for Mr. Burkhard to get up there and say the residents had no idea that the PUD was putting boat docks and boathouses in the PUD, for us to come back later and go through the boat dock extension process is not consistent with the prior history. So I don't -- maybe he didn't read the minutes. But if he read the minutes, then he didn't tell you the truth. If he didn't read the minutes, then he should have read the minutes to understand the legislative history before he tells you that the residents had no idea. I have a question of Mr. Burkhard -- and it triggered my mind, because he has a 25 -foot boat, apparently, and the question I have is, does he have a boat dock extension for his property? CHAIRMAN STRAIN: Well, and -- MR. YOVANOVICH: And if I can ask him that question. Page 78 of 94 March 1, 2012 CHAIRMAN STRAIN: Richard, that has nothing to do with relevance to your project. MR. YOVANOVICH: Well, it does. It does, because -- CHAIRMAN STRAIN: Mr. Burkhard's not on trial here today. MR. YOVANOVICH: I understand, but you know what, he's making comments about he is on the zoning committee, and as part of the zoning committee, he wants to make sure that people are consistent with the zoning ordinances. CHAIRMAN STRAIN: Richard, if you want to pursue that, you just call -- you file a complaint with code enforcement. This is not the forum for that. MR. YOVANOVICH: Can I ask him the question? CHAIRMAN STRAIN: No. I'm not going to entertain it. It's not part of the application. MR. YOVANOVICH: That's fine. That's fine. COMMISSIONER SCHIFFER: Can I ask Rich a question about what he said prior to that? CHAIRMAN STRAIN: Sure, go ahead. COMMISSIONER SCHIFFER: And by the way, I've been to Bruce's house. He parks it parallel with the shore, so it's not sticking out more than 20 feet. But anyway, why -- if all that's true, why didn't you put the boat docks in the general development standards? Why are they in a section that says the standards for the residential development areas? Why wouldn't you make that more obvious? MR. YOVANOVICH: Mr. Schiffer, we did make it obvious. We made it very clear that we were going to come back through the boat dock extension process to ask for boat docks and a boathouse pursuant to the boat dock extension process, and the boat docks were going to be accessory to the residential. It was not going to be a commercial marina where anybody could come in and request the ability to purchase the docks. We've spent an awful lot -- amount of time talking about whether or not we need to do a full -blown PUD amendment because people claimed they didn't really know what was going on. They knew what was going on. There had been websites up -- I read one Christmas Eve, and I call it the "kill the Dunes boat docks website." I know it doesn't say that, but that website's been up for quite a while. People have known about this process and expected us to go through this process. They fought it for many, many years at the state level. We're now finally here. The state has reviewed it. They have considered safety issues, they have considered environmental issues, and the state has, in fact, authorized us to go forward with what we're here before you today. Tim has spent time talking about how we meet the boat dock criteria, and we meet the Comprehensive Plan. And we're continuing to be prepared to address those comments and concerns. Your resolution in front of you refers to the applicable provisions for seagrasses. It's a condition when we come forward for our building -- our SDP and also our building permit that we meet those criteria if, in fact, seagrasses exist at the time we come forward with that process. That's what your code regulates. At the time you come forward with the building permits, if there's seagrasses, you have to stay a certain distance. And if you can't meet that distance, you have these other criteria. Those criteria are in your resolution. And that's what should be applied to us. We should be going through the boat dock criteria and the provisions applicable to seagrasses. And we submit to you that we meet those criteria. And there'll be further assurances that we have to meet those criteria not only today but the next step, because if the seagrasses come back, as Kathy says, we'll have to deal with it. But if they're gone, they're gone, and that's what the code requires. So I'd like Tim to take some time to go over the seagrass criteria and how we meet and -- again, briefly, because it's kind of gotten discussed otherwise, and then we're prepared to answer any questions that the Planning Commission may have regarding our petition and how -- if you have questions regarding whether or not we meet the criteria that we can answer. CHAIRMAN STRAIN: Tim? MR. HALL: And I'm going to go ahead and take this stuff out of Policy 6.3.1 of the GMP. I'm sony -- 6.3.2. Impacts to seagrass beds shall be minimized by locating the boat docks more than 10 feet from existing seagrass beds. Where this is not possible, the docks shall be sited to impact the smallest areas of seagrasses possible. We've done that. We've located the docks outside of that area where we believe seagrasses are likely to grow. Page 79 of 94 March 1, 2012 The only impact is the walkway going over the top of them to actually access the docks. That's the smallest possible impact under the -- under the conditions that we have. It should be no lower than 3.5 feet NGVD, which we are. We meet that criteria. Have a terminal platform no greater than 160 square feet. I know that Commissioner Strain and myself disagree on this one in terms of what constitutes a terminal platform. I believe we are consistent with that criteria as well. And then have the access dock be no wider than four feet. We are dropping our width to five feet in order to comply with the ADA requirements. And, you know, from that standpoint, related to that policy, my opinion is that we are compliant with it. And, you know, if there are still any further questions then -- COMMISSIONER SCHIFFER: I do, Mark. CHAIRMAN STRAIN: Okay. Go ahead, Brad. COMMISSIONER SCHIFFER: One thing you're missing, though, you're running this dock right alongside parallel to it. We've heard testimony that the buildings across the way are blocking sunlight to these things. Wouldn't that block a major amount of sunlight to these guys? As the sun -- you know, past noon, it gets around 3 o'clock, your dock is putting the whole thing in shade. MR. HALL: Well, I think it will be quite a bit past the noon. I mean, we're still trying to get as much separation from the seagrass beds as possible. In most of the locations we're maintaining five feet or more separation. We just don't have the 10 feet. So the sun at noon, if you think of noon as being directly overhead, it's got to get low enough down on the horizon to where it hits the dock and the shading covers that five -foot halo. And you have to remember that that late in the afternoon, when the sun is going down further, the intensity of the sun is decreasing anyway. So the later in the day that that shadow hits them, the less impact it has because the actual intensity that they would be getting anyway in an unshaded condition would be less than if it was overhead. COMMISSIONER SCHIFFER: But if you're five feet away, you're three - and -a -half feet up, you obviously have dimension in the water, you're almost going to be like a 45- degree angle. So that sun is not setting when you're blocking it.. MR. HALL: And I'm not saying it's setting. I'm just saying that it is lower in the sky than directly overhead. And based on a lot of -- I won't say a lot, but I know of one study that was done in West Palm Beach when they were looking at some of the shading effects of docks, you know, when they were getting statistically measurable differences or effects to seagrass beds, and what they did was look at docks built right on top of seagrasses, and they looked at how the seagrasses underneath those docks faired as well as out away from them. And they measured the measurable impacts to the seagrasses, and they generally ranged between five and seven feet out from the docks is where the shading impacts associated with the docks then became unmeasurable from a statistical standpoint. So we've -- you know, we're trying to abide by those. There is shade cast, you know, by the docks, and I don't dispute that. We're doing everything we can to minimize, you know, that impact as much as we can. COMMISSIONER SCHIFFER: All right. Thanks, Mark. CHAIRMAN STRAIN: Okay. Are there any other questions of -- COMMISSIONER EBERT: Yes, Tim. CHAIRMAN STRAIN: Go ahead. COMMISSIONER EBERT: Can you please tell me, when was the last time this channel was widened; do you have any idea? MR. HALL: I would just be guessing. I don't know. The original -- to get it to the width that it is now, I believe, happened in the mid'60s. COMMISSIONER EBERT: In the '60s, okay. MR. HALL: I believe so. COMMISSIONER EBERT: Okay. So they have not -- MR. HALL: I think there was one -- there's been at least one maintenance dredging activity that went through Water Turkey Bay in the -- I think that was in the late '90s, but I don't know what the exact date of that it is. Page 80 of 94 March 1, 2012 COMMISSIONER EBERT: But that did not -- that did not widen the channel? MR. HALL: It did not widen the channel, no. That was just to --that was just for depth. COMMISSIONER EBERT: Okay. To do that three -foot depth through the channel; is that -- MR. HALL: I believe they went to minus five. They dredged to minus five, and that's to accommodate -- COMMISSIONER EBERT: Fill. MR. HALL: -- up to three -foot. COMMISSIONER EBERT: Fill, okay. CHAIRMAN STRAIN: Anybody else? COMMISSIONER AHERN: I just want to follow up on, maybe, Brad. CHAIRMAN STRAIN: Go ahead. COMMISSIONER AHERN: There was a comment made that the buildings across the way are already shading this --the grasses in that area. So just to follow up with Brad, if it's already shaded, how much change is there with the dock there? MR. HALL: I mean, I haven't done any kind of a light intensity study associated with it in connection with the buildings. I mean, it depends on the height of the buildings across the way and whether or not -- the areas where the buildings are, when they're casting the shade, may even be before the docks would be, if they're high enough. I don't know -- I don't think I can give you an exact answer to that. COMMISSIONER SCHIFFER: Yeah. The buildings would cast a shadow much later than -- during the day than these things would. I mean, I know the geometry of that area, and these docks are going to be -- you know, here's the bed. These docks are going to be right here. The building's way off. And the shadow on that would be under the dock, probably. And the effect of that would be late in the day. I'm worried about the stuff around, you know, early afternoon that the dock will cast. MR. HALL: Well, I mean, if -- I guess if you assumed that we are five feet from the docks, I mean -- I'm sorry, five feet from the seagrasses, the inside of the dock would be five feet from the seagrasses and it's at -- you know, the height differential between them would be -- COMMISSIONER SCHIFFER: Five feet. MR. HALL: Depending upon the depth of the water, but assume -- so assume it's five feet as well -- that will make it just easier -- then, yeah, you're talking about a -- when the sun's at a 45- degree angle is when it would start to encroach into them. COMMISSIONER SCHIFFER: Which would be about 3 o'clock. CHAIRMAN STRAIN: Any other questions? (No response.) CHAIRMAN STRAIN: Tim, the finger docks that you have, in some cases you've got two boats between the finger piers, which makes sense. What's the distance between those two fingers where you have two boats? MR. HALL: I believe it's 30 feet. It's 14 -- CHAIRMAN STRAIN: Fifteen feet for each one? MR. HALL: Fourteen for each one and a center piling. CHAIRMAN STRAIN: Okay. So -- okay. Thank you. Anybody else have any questions? Go ahead, Brad. COMMISSIONER SCHIFFER: A couple technical things. One thing we didn't discuss is fueling. What's going to be happening on these boats for fueling? MR. HALL: There's no fueling at the facility. COMMISSIONER SCHIFFER: You know, when I was on the -- chairman of the state fire code committee, we had issues where tank trucks were coming in and pumping fuel through residential neighborhoods -- MR. HALL: No. COMMISSIONER SCHIFFER: -- you know, quite a few hundred feet. So how will you control -- you know, I mean, you can't -- MR. HALL: I think you heard one of the ladies earlier on talk about the boat dock committee and the guidance documents that they have been working on with the dock master and so forth. It will be regulated by the permits that no fueling is allowed there, but it will also be regulated internally to make sure that nobody's sneaking, Page 81 of 94 March 1, 2012 you know, cans out in a wheelbarrow or anything, I guess. COMMISSIONER SCHIFFER: I mean, people will be bringing fuel. I mean, they'll go get it filled up at the gas station and wheel it down, won't they? Or you're going to say that's not allowed. MR. HALL: No, no, it's not allowed. They have to actually move the boat to a designated, you know, fueling location, which would be either, you know, up around Cocohatchee Park or one of the other marinas. COMMISSIONER EBERT: Okay. CHAIRMAN STRAIN: Go ahead, Diane. COMMISSIONER EBERT: There is some very confusing things here. If this channel was not made any wider since the '60s and yet Ms. Bishop is saying, I can tell you there will never be a marina there because the channel is not wide enough, how -- I mean, that's contradicting this. And then in looking at the 2000 BCC on November 14th, and you -- and they were talking about Mr. Lydon, and he mentioned the boat docks. And Commissioner Mac'Kai said, Dick, I don't think there's docks in here. And Chairman Carter says, they're not asking for it, Dick. And Mr. Nino says, I don't see it either. So to me this is very confusing. One says you can't do it it's never going to be there and yet they're saying it's not in this petition. So I have a lot of reservations about this at this point, Tim. Thank you. MR. HALL: About the BDE or the whole process? COMMISSIONER EBERT: The whole process. CHAIRMAN STRAIN: Are there any other questions of Tim? COMMISSIONER VONIER: Tim. CHAIRMAN STRAIN: Bill? COMMISSIONER VONIER: Tim, while you're there, construction of these docks, I assume, all from the water, on floating -- from floating barges or floating dredge pump. MR. HALL: Construction of the docks would be from the barge. The boardwalk going out to the docks will be built from the boardwalk itself, kind of a build -as- you -go. COMMISSIONER VONIER: How would you build the parallel walkway? MR. HALL: The parallel walkway would be from a barge. COMMISSIONER VONIER: From a barge. MR. HALL: All of the in -water docks and all will be built from a barge, but the actual boardwalk going from the uplands out to the dock will be built from the boardwalk itself. COMMISSIONER VONIER: And how large are these barges that you use? MR. HALL: Well, I -- I mean, I couldn't tell you -- COMMISSIONER VONIER: How long will they be there? MR. HALL: The construction timing? COMMISSIONER VONIER: Yeah. MR. HALL: We estimate probably around six months, I believe, was the time frame. Do you remember, Keith? I think that was right. MR. SHARP: It's a lot shorter than that. The dredging is one portion. MR. HALL: A lot of it depends on timing. If the dredging that's going to be undertaken is all done first, and then they go back in to do the docks, it will take longer than if they are dredging and then putting the docks in right behind them. So there are some construction aspects that may not be exactly known until the contractor's chosen and his methodologies are examined according to what the building permit and all of that are submitted. COMMISSIONER VONIER: And then the hauling of the dredged material after the dewatering would be through the Dunes gate, not -- there won't be any special access onto Bluebill? It will all go through the Dunes entranceway? MR. HALL: No. I believe there's an access onto Bluebill right now, and they'll be utilizing that access that's there to dispose of that. CHAIRMAN STRAIN: Okay. Any other questions? COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: Bill -- or Brad. Page 82 of 94 March 1, 2012 COMMISSIONER SCHIFFER: Yeah. Ray, could you put the uplands connections -- you showed that one drawing that showed guest parking. CHAIRMAN STRAIN: Ladies, by the way, for the court reporters, we'll probably go for another 45 minutes. Do you want a break before then? I don't see any affirmative. Oh, you do? THE COURT REPORTER: I'm okay. CHAIRMAN STRAIN: You're okay? Just want to make sure. MS. NOTTINGHAM: Even though I'm slow and old. CHAIRMAN STRAIN: Well, Terri said that. I didn't. I'm teasing you. It's called motivation. COMMISSIONER SCHIFFER: Ray -- and I guess this is going to be for you because -- I mean, there has to be some additional impact to the site. I mean, there's -- boats are going to need servicing. You have the -- I'll be polite -- the honey wagon coming in to take the pump -out station. So is this all set up properly? Is there -- we did get some neighbors who were concerned that -- and I could see why -- that one parking lot might become the parking lot for guests of people who are going out on boats and stuff. So have you studied this site plan and you feel that there's enough parking, enough everything for service trucks, fire department access, and maintenance and guests or whatever? MR. BELLOWS: Yeah. For the record, Ray Bellows. The petitions before us today do not include the review of a Site Development Plan. That is a subsequent development order. And we will review it at the time to make sure it complies with all applicable codes. But it's not part of this petition, so I didn't review any site plan. COMMISSIONER SCHIFFER: But what if those kind of things can't happen? I mean -- MR. BELLOWS: They have to meet it at time of SDP or they can't build. COMMISSIONER SCHIFFER: So they would be denied the ability to build it if you're not satisfied? MR. BELLOWS: You can't build anything that isn't consistent with -- COMMISSIONER SCHIFFER: Okay. The one thing is, we had a four -foot walkway, and then you said, well, wait, it has to be five feet because of the ADA. So what your -- that's an outside code that's increasing the size of it. Could any other code increase it? For example, could the emergency /fire department get together and say, wait a minute, we need a much wider area than this. We want to run our new motorized something or other up and down it. Would that cause it to increase in size after it leaves here today? MR. BELLOWS: Well, the subsequent development order would be an SDP or an SDP amendment, depending on what's on the official record, and at that time it will be routed to the fire department, and they will have review comments, and the applicant will have to comply with those review comments, and they certainly cannot do anything (sic) that the boat dock extension or the PDI allows. COMMISSIONER SCHIFFER: My point is, that if there's something dimensional and an authority having jurisdiction, can they increase that, or would it make the project unbuildable? MR. BELLOWS: Any recommendation from another agency cannot -- doesn't give them the ability to get a variance from the county or deviate from county standards. They would have to either amend their approval if they're inconsistent in some way, or if they are consistent, certainly they can be able to work with those review agencies and find out a way to comply. COMMISSIONER SCHIFFER: Okay. So let me give you an example. If they say they need nine feet, not eight feet, you wouldn't change it to nine. They would just have the hardship that they can't build it because they need nine feet. MR. BELLOWS: If they're shown and the plans are approved at eight feet, then that's what they get. COMMISSIONER SCHIFFER: Approved during this process? MR. BELLOWS: Yeah. COMMISSIONER SCHIFFER: All right, thank you. MR. BELLOWS: Yes. CHAIRMAN STRAIN: Okay. Are there any other questions of the applicant? (No response.) CHAIRMAN STRAIN: Okay. That will close the public hearing, and I need to ask some questions of Heidi about procedure from this point, and then we'll need to go into motions, discussions, whatever this board wants to do. Heidi, we have two issues in front of us, one is the PDI, which we'll do first, and the other is the BDE. The Page 83 of 94 March 1, 2012 PDI, if there's a motion to approve the PDI, how does that impact the BDE in regards to what is on the PDI? For example, the PDI's very specific in the way the graphic is shown. It shows the layout of the docks that are here today. If we approve the PDI but we want to change the layout, can we do so, or does the PDI lock us into a general graphic that's shown on the PDI that's in front of us today? You need to bring the mike -- we can't hear you. MS. ASHTON- CICKO: Sorry. If you don't want to approve the layout that's proposed in the boat dock extension, it looks to me that the site plan that they've given you as the master plan does reflect what's on the DBE. CHAIRMAN STRAIN: Right. MS. ASHTON- CICKO: If you don't want to approve that, then I would suggest that it just show the area of where boat docks would go if approved. So that could be modified to put a label, boat docks will go here, you know, if approved. CHAIRMAN STRAIN: So the detail that's on this particular site plan -- thank you for putting that up, Ray -- it more or less would be another hatched area from the north to the south that shows the general area that boat docks could be approved as a PDI? MS. ASHTON- CICKO: Correct. CI IAIRMAN STRAIN: Then the BDE we would handle right after that? MS. ASHTON- CICKO: Correct. CHAIRMAN STRAIN: Okay. Does it make sense to do the BDE first without the PDI? I think the answer's no. So we are kind of forced into doing that. MS. ASHTON- CICKO: No, because I think you need the -- you know, you need the zoning first. CHAIRMAN STRAIN: Right. And if we turn down the PDI, does that mean the BDE is a done deal? I mean, there's no further -- it's over with because of the fact that it didn't get approved on this master plan? I mean, there's a potential of a negative. MS. ASHTON- CICKO: Yeah, I think you need both. I think you need both. So if you were to deny it, then the applicant would have to decide if they want to submit a different type of petition relating to the PUD. CHAIRMAN STRAIN: Okay. So if the motion maker is inclined to acknowledge that some docks are permissible, some plan, then the motion would have to really be that this particular PDI be approved subject to a clarification that the dock locations be crosshatched or signified on here but not the detail that's on here today? MS. ASHTON- CICKO: Correct. CHAIRMAN STRAIN: Okay. Then we get into the BDE, and any particulars on that one, then, would then allow something to happen in the area that is shown? MS. ASHTON-CICKO: Correct. MR. YOVANOVICH: Mr. Strain, may I? CHAIRMAN STRAIN: Yes. MR. YOVANOVICH: Me. CHAIRMAN STRAIN: Go ahead. MR. YOVANOVICH: I think if you were -- if for some reason the PDI is denied, we have the right to appeal that. So I think you also need to vote on the boat dock extension as well. CHAIRMAN STRAIN: That's what she said. MR. YOVANOVICH: Oh, I thought she said it would -- you would -- if you denied the PDI, you wouldn't even go to the boat dock. CHAIRMAN STRAIN: No, no. I thought she said we still do both. MR. YOVANOVICH: Okay. I'm sorry. CHAIRMAN STRAIN: I just want to make sure -- MR. YOVANOVICH: I misunderstood. CHAIRMAN STRAIN: -- that whoever makes the motion understands the ramifications of the motion. MR. YOVANOVICH: Okay. I misunderstood. Thank you. CHAIRMAN STRAIN: Okay. Is there any other discussion on the part of the Planning Commission? (No response.) CHAIRMAN STRAIN: Is there -- someone want to -- COMMISSIONER SCHIFFER: One question, Mark. Page 84 of 94 March 1, 2012 CHAIRMAN STRAIN: Go ahead. COMMISSIONER SCHIFFER: And it's Heidi. Heidi, have you ever reviewed to see if there is an access easement of 250 feet up that waterway? Remember when they showed the old plats, there's the impression that that waterway has been given to the public via easement. CHAIRMAN STRAIN: Via plat. COMMISSIONER SCHIFFER: The plat that you brought out. CHAIRMAN STRAIN: Yeah, which I still have them. I can give them to Heidi if she wants. MS. ASHTON- CICKO: Yeah, I didn't -- no, I did not review that. COMMISSIONER SCHIFFER: So you don't know if, in fact, that statement is correct that there is today the public access, an easement through that area of 250 feet wide? MS. ASHTON- CICKO: I don't have any independent knowledge other than what Mr. Strain put on the visualizer and said that it was not vacated, because we were told the rest of it was vacated. CHAIRMAN STRAIN: And it doesn't say easement. It doesn't say that waterway's an easement. It says it's a waterway. And the way it reads on the plat -- and if the plat's not valid, then someone certainly needs to tell me. I'm only going by the document that's recorded against this, and it says, the -- has caused to be made this plat entitled "Wiggins Pass Landings, Unit No. 1," and does hereby dedicate the streets, easements, and waterways as shown on the attached plat to the perpetual use of the public for proper purposes and uses shown thereon. Now, the waterway is called out on the plat. If someone's got it over there, you can put it on there. It doesn't say the waterway's an easement, because it went further than that. It just platted it as -- for the public use. If that's not a legal way to do it, then someone needs to tell us, because it's a recorded plat. COMMISSIONER SCHIFFER: But then here's my question. That plat today has been amended. It doesn't exist. CHAIRMAN STRAIN: No. It's only -- it was amended only -- and I -- if you give me a few minutes, I can give you the amendment. I actually pulled it and read it, because I -- when I did my search, I found all that information. And the amendment amended it to remove the subdivision but specifically left the language about the waterway. I've just got to find it so you'll --I certainly want you to have a level of comfort, Brad. So I'd rather you -- COMMISSIONER SCHIFFER: We'll take a five- minute break. Let the girls relax, and you can find it. CHAIRMAN STRAIN: Let's do it. Let's take a break till 5:15. How's that? I'll move fast. (A brief recess was had.) CHAIRMAN STRAIN: We're back on record. The document has been found. I gave it to Ray, and I don't know where it is now. MR. BELLOWS: County Attorney has it. CHAIRMAN STRAIN: Okay. What the document says, it vacated the plat, so Wiggins Pass, Unit 1, then there was a legal description it referred to. The legal description was less than accepted, 250- foot -wide waterway, and it provided a legal description for that waterway. The problem is, I didn't track that legal description, but there's a graphic that shows where the legal description lies. We can -- and it's a recorded document, so - -'98 something. COMMISSIONER SCHIFFER: Okay. So that means that -- CHAIRMAN STRAIN: Well, she'll tell you what it means. I mean, I'm -- MS. ASHTON- CICKO: Well, based on what I'm looking at, the Plat Book 10, Page 44 for the Wiggins Pass Landings, Unit No. 1 that Mr. Strain put up on the visualizer, yes, there is a 250 -foot waterway. It does appear that was dedicated for public use in 1970. COMMISSIONER SCHIFFER: Okay. MS. ASHTON-CICKO: Now, you know, we don't have the benefit of a title search, to look at the documents like Mr. Grant did when Mr. Grant did his opinion before the Planning Commission and the Board of Commissioners when he said all this property was under the ownership of the developer. It would seem to me that there would be some easement rights out there for the public and, you know -- COMMISSIONER SCHIFFER: So, yeah. I mean -- so all these kayakers and everybody that's -- I mean, we would be denying them access to the areas we're sticking these boat docks and the area behind that. MS. ASHTON- CICKO: I don't know that that's true. You know -- COMMISSIONER SCHIFFER: Well, they'll bump into them. Page 85 of 94 March 1, 2012 MS. ASHTON- CICKO: It would appear that there may be an easement for waterway usage that's up to 250 feet. Now, under easement law, the owner can use the land in a way that's not inconsistent with their -- with the easement use. You know, you're getting into some private rights issues potentially. COMMISSIONER SCHIFFER: But the intention of an easement is to -- for example, an access easement, if I'm given that, I can't build a building in the middle of it because it's no longer a good access. MS. ASHTON- CICKO: Right, because a building would be inconsistent with the access. COMMISSIONER SCHIFFER: So if I have the use of 250 feet of waterway, I can't build a bunch of docks in it. MS. ASHTON- CICKO: I can't answer that question for you. COMMISSIONER A14ERN: Heidi, but is it an easement? Isn't it just dedicated waterway? MS. ASHTON- CICKO: Well, somebody has to own the fee - simple ownership. And the case law that I've read in these dedications is that unless it's very clear that fee simple is conveyed, then only an easement is conveyed. So I tend to take conservative opinions, and when I've looked at these kind of things that we've had in Golden Gate Estates and Golden Gate City and so forth, I've taken the position that it would have conveyed an easement. There are some people that might have a different opinion, but my opinion is it would convey an easement interest because it doesn't specifically say "in fee simple." CHAIRMAN STRAIN: Okay. And then in the -- to answer Brad's question, do you have any concern that this waterway is not usable by the public based on any action we could be taking today? MS. ASHTON- CICKO: I think that the applicant's demonstrated sufficient rights to go forward and request a boat dock extension. CHAIRMAN STRAIN: Okay. Okay. I'm just -- want to make sure. Anybody else? Okay. Does anybody -- COMMISSIONER EBERT: I have one question. Tim? Sorry. MR. HALL: Yes. COMMISSIONER EBERT: On the staff report, the very first page, 1 of 14, it says the waterway varies from 150 to 471 feet. MR. HALL: Yes, ma'am. COMMISSIONER EBERT: The canal is not that far, so you're going where, to the mean water line? MR. HALL: This is done -- it's a Collier County staff report, so they're going to use the Collier County definition of the waterway, which is the mean high -water line. COMMISSIONER EBERT: Okay. COMMISSIONER SCHIFFER: Tim, did you measure that? I mean, that's got to be scene from Papillion (phonetic) or something, you wandering around. MR. HALL: There was a surveyor (sic) done -- yeah, there was a survey done of the mean high -water Iine. That's why you get that crazy shape right there. CHAIRMAN STRAIN: We have about 25 minutes to finish this up, and we have two motions to make and discuss. So if we don't get moving, we're not going to finish it today. We will be leaving this room at ten minutes to six because somebody else has it. So I need someone to consider a motion. Does that mean there's -- COMMISSIONER HOMIAK: I'll make a motion. CHAIRMAN STRAIN: Go ahead. COMMISSIONER HOMIAK: I'll make the motion to approve PDI- PL2012 -159, Dunes PUD. COMMISSIONER AHERN: I'll second it. CHAIRMAN STRAIN: Motion was made by Ms. Homiak, seconded by Melissa. Now, we had talked about making it subject to a general area in which docks may be considered, and that language was considered. Are you accepting that as part of the request to make your motion, or are you just making it pursuant to exactly what's on that master plan or what? COMMISSIONER HOMIAK: So you want to take this out and not be specific, just mark the area for the master plan. Page 86 of 94 March 1, 2012 CHAIRMAN STRAIN: I'm suggesting -- I would strongly suggest that we don't be specific in case we want to change the dock plan on the BDE. That's why I would suggest that we use general language to describe the area in which the dock can be, and that's what I'm suggesting. But you're the motion maker. COMMISSIONER HOMIAK: Okay. Well, I'll amend my motion to take out the specific -- CHAIRMAN STRAIN: Layout. COMMISSIONER HOMIAK: --layout of the dock area in the master plan and just, I guess -- CHAIRMAN STRAIN: Indicate. COMMISSIONER HOMIAK: -- that area -- indicate that area on the length of the manmade waterway. CHAIRMAN STRAIN: That's a general area in which a dock could be -- might be approved? COMMISSIONER HOMIAK: Yes. COMMISSIONER AHERN: I'll second that. CHAIRMAN STRAIN: Okay. COMMISSIONER VONIER: I'd like her to restate it a little bit more clearly. CHAIRMAN STRAIN: I'll take a shot at it for you. COMMISSIONER HOMIAK: The area --just --the general --the area that has already specifically -- specifically out of the docks, just take out the specificity in just that area -- just mark that area. COMMISSIONER AHERN: Manmade waterway? COMMISSIONER HOMIAK: Yeah. COMMISSIONER BROUGHAM: Mark, why don't you take a shot at summarizing the motion. CHAIRMAN STRAIN: Well, I would suggest that where the docks are shown now is the general area in which we will consider docks to go in the future based on the BDE that we finally approve or disapprove, whatever happens with that. But that's the general area in which the docks will go as a "may," not a "shall." And that's what I'm suggesting. Is that -- Paul? COMMISSIONER MIDNEY: It doesn't have anything to do with the number of slips that were suggested? CHAIRMAN STRAIN: That's why it's being worded this way because -- COMMISSIONER BROUGHAM: Quite to the contrary, in my understanding. CHAIRMAN STRAIN: Yeah, that's correct, because I think there's going to be a lot of discussion about the docks themselves, and I don't want to be locked in, and I don't want any of us to be locked in to this plan, so -- COMMISSIONER SCHIFFER: Mark, a question. But aren't we also amending the master plan to show the movement of a boardwalk, stuff like that? MR. YOVANOVICH: Right. I was going to ask you if you could leave the boardwalk where it is with the note that it's eight feet, because that's what was permitted. And then you can -- we have the note on there that talks about the location, and you might want to say "general configuration." CHAIRMAN STRAIN: I haven't got to my stipulations yet, but I did have stipulations, a couple of them specific to the PDI if it were to be approved. And besides the change in the configuration of the docks to be a generalized area for a possibility, I also would suggest that it require the storage area that's being shown on the master plan, which is a little stub out over by one of the residential tracts, to be outside the preserve area. So that means you've got to cut a notch out of the preserve area, and you've got to move it into a common area. That's rather simple to do with the excess preserve that you have. And No. 2, to save you the concern over the preservation -- or conservation easement, to go ahead and put a note on the master plan that says the boardwalk will be -- or the access -way will be eight feet; that way you're locked into eight feet, which covers Brad's concern about other agencies, and you're covered when the conservation easement gets enacted for that language to the LDC. And those are the only two items I had that pertain to the PDI. So the motion -- and I'll ask for the motion maker, after I restate it, to amend it if they're willing -- is to provide a generalized area on the plan that shows where a dock may be considered through a boat dock application. And, second, to show that the new location of the boardwalks are on there and that the boardwalk will be no greater than eight feet wide; and, third, the location that's shown for the pump -out sewage center will be outside of the preserve area. Is there anything that I missed? COMMISSIONER SCHIFFER: I have a question. How can you throw that onto somebody else's property? Page 87 of 94 March 1, 2012 CHAIRMAN STRAIN: Throw what onto somebody else's property? COMMISSIONER SCHIFFER: The pump house. CHAIRMAN STRAIN: Not doing that. They'll just redraw the preserve line around it. COMMISSIONER SCHIFFER: But then that will -- isn't that one thing you can't do with an insubstantial change? CHAIRMAN STRAIN: Only if you go over five acres. This is right next to the edge of the preserve. It would only take a tenth of an acre. COMMISSIONER SCHIFFER: Okay. Then who gets it? CHAIRMAN STRAIN: I don't think -- MR. YOVANOVICH: It's going to go with the dock association. They're going to have responsibility for -- COMMISSIONER SCHIFFER: You're not worried about it? CHAIRMAN STRAIN: No. COMMISSIONER HOMIAK: Okay. So I amend my motion to include those last three stipulations that you CHAIRMAN STRAIN: Thank you. Do you second? COMMISSIONER AHERN: I second. CHAIRMAN STRAIN: Okay. MR. YOVANOVICH: Mr. Strain? MR. HALL: Commissioner Strain? CHAIRMAN STRAIN: Yes, sir. MR. HALL: I'm sorry. I just -- I had one concern with the limitation to eight feet. There is a turnaround and a pull -out on that boardwalk -- CHAIRMAN STRAIN: Good point. MR. HALL: -- that is wider. And if you just say eight feet only, if you could allow for those two allowances, we'd appreciate it. CHAIRMAN STRAIN: I fully agree with that. That was the intention. Does the motion maker have any -- well those are whatever they need to be on the drawings. COMMISSIONER HOMIAK: Yes, I make that amendment. CHAIRMAN STRAIN: Do you accept it? COMMISSIONER AHERN: I accept that. CHAIRMAN STRAIN: Okay. So the eight foot is excepting out the turnout required areas that are shown in the drawings. Now, is there any other issues with the PDI? (No response.) CHAIRMAN STRAIN: Okay. Is there -- we're going to call for the vote. Before we do, is there any further comments? I have one. I am going to vote in favor of the PDI, but I want it to be noted that it's not as an acknowledgment that I accept the PDI process that we went through today as the right process for that project. So it's just the way to get to it from a -- it's just a way to get to the end of the discussion so we can move on to the next one, for me. COMMISSIONER EBERT: I -- may I make a comment? CHAIRMAN STRAIN: Sure. COMMISSIONER EBERT: I will not be voting for the PDI because the fear of when the SDP comes, we don't know when it's going to come, and they can do it at a time when there are no seagrasses around -- I mean, this one is very crucial, and it's not like a normal PUD amendment. And this is so environmentally sensitive. I just -- the seagrass and the SDPI (sic) on this, there's too many questions on it. CHAIRMAN STRAIN: Okay, anybody else? (No response.) CHAIRMAN STRAIN: Okay. We'll call for the vote. All those in favor, signify by saying aye. COMMISSIONER VONIER: Aye. Page 88 of 94 March 1, 2012 COMMISSIONER AHERN: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER BROUGHAM: Aye. CHAIRMAN STRAIN: Anybody opposed? COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER EBERT: Aye. COMMISSIONER KLEIN: Aye. CHAIRMAN STRAIN: Okay. So the motion carries 5 -4. I'll just do that one more time so we're clear. All those in favor of the motion, please raise your hand. COMMISSIONER VONIER: (Raises hand.) COMMISSIONER AHERN: (Raises hand.) CHAIRMAN STRAIN: (Raises hand.) COMMISSIONER HOMIAK: (Raises hand.) COMMISSIONER BROUGHAM: (Raises hand.) CHAIRMAN STRAIN: One, two, three, four, five. Okay. All those opposed? COMMISSIONER SCHIFFER: (Raises hand.) COMMISSIONER MIDNEY: (Raises hand.) COMMISSIONER EBERT: (Raises hand.) COMMISSIONER KLEIN: (Raises hand.) CHAIRMAN STRAIN: Same four. Okay. Let the record reflect the vote. With that we'll move on to the boat dock extensions. Does anybody have a recommendation on the boat dock extension? COMMISSIONER MIDNEY: I would suggest that we take the compromise offered by the Conservancy. CHAIRMAN STRAIN: You want to make that a motion then? COMMISSIONER MIDNEY: Yes. CHAIRMAN STRAIN: Okay. Mr. Midney has made a motion to accept the compromise offered by the Conservancy. Is there a second? COMMISSIONER BROUGHAM: I'll second that. CHAIRMAN STRAIN: Seconded by Mr. Brougham. Discussion? COMMISSIONER SCHIFFER: I think that's interesting. The biggest problem I have is I think it's an extremely unsafe layout the way it is. It's a major, you know, 3,000, 3,500 -foot dead -end boathouse thing. And, obviously, I guess, if I voted no on the one before, why would I ever vote yes on the boat dock? So that's my opinion. That's an interesting thought to reduce it to protect the seagrass, which is my problem. CHAIRMAN STRAIN: Okay. Is there any other discussion? Melissa. COMMISSIONER SCHIFFER: Second it? COMMISSIONER AHERN: Aren't we protecting that when it goes through the process? If they're existing, they have to reduce already? COMMISSIONER SCHIFFER: I mean, I'm not -- COMMISSIONER EBERT: We can't hear you. COMMISSIONER AHERN: He made a comment that -- to take the Conservancy's layout that it would reduce the size and protect the seagrasses. My question back was, wouldn't that already take place in the current process? Because if they go forward and there's seagrasses, they'd have to reduce it anyway. COMMISSIONER SCHIFFER: And my response is I'm not a big fan of the process. Terms like at the final SDP you have to show everything, or before you get an SDP -- COMMISSIONER EBERT: Yes. COMMISSIONER SCHIFFER: -- you have to show everything, which means we shouldn't be here today, Page 89 of 94 March 1, 2012 because they should have showed the boat docks or where they're going to put them. Look what we did in the last motion, we put "potential boat dock" area, which is what they should have done all along. So the point is don't trust the process, in my opinion. COMMISSIONER AHERN: But I would also state that there's -- and especially now with everybody revising their projects, we're adding so many various uses, you're never going to show them all. When you go through SDP, you're never going to show all the uses that you were approved for. COMMISSIONER SCHIFFER: I think when you're in the SDP, all cards should be up, nothing in your back pocket when you walk out of the SDP. COMMISSIONER EBERT: Brad, that is kind of what I was saying on this SDP process. It just does not -- it does not sit well with me at all, in this particular one. COMMISSIONER SCHIFFER: Yeah. There's a good example of why. CHAIRMAN STRAIN: Okay. I had prepared some stipulations on the condition that we would have a boat dock approval of some type. I firmly believe that they have a right to some boat docks. I don't think the plan that's in front of us today is consistent with a whole mess of levels of our -- both GMP and our LDC, but I think a plan could be worked out that would get us to a consistency position. Some of the things that would happen at the same time would be better for the area. I think they volunteered to leave the draft at 2.5 feet, which the South Florida permit did, even though the Corps permit didn't. I'd want to see that reflected. That the overall length of the boats is --they're no greater than 35 feet, not just the boat. That's a big difference. There are going to be no canopies. The seagrass notation that appears on Tim's plans that refer to when they submit for building permit, I would suggest that get removed on all of the plans. The -- because it's too ambiguous. You'll have to submit it to whatever extent the code requires you to at the time you do. I don't care what your notation says. The conservation easement language, I think we resolved that by clarifying where the sewage treatment plant -- or sewage treatment area was going to be, or that house, and then the eight -foot reference on the master plan. I think the area -- the CCA issue involving the application at the time of building permit needs to be resolved from the agencies to see what they intended when they restricted it to that way. I would also suggest -- and, Ray, could you put that plan I just gave you out? That the dock configuration -- no, that's the Conservancy's -- that the dock configuration change to the benefit of the seagrasses. What I'm suggesting is the only remaining portion would be the perpendicular docks, and that's why I asked for 15 feet to know where the clearance would be, that the marginal dock, as they're calling it now, the terminal platform as it's seemingly defined, gets moved out to the 25- percent mark and it becomes a five -foot wide access walkway with railing on both sides with no dockage parallel to it. And that happens in both the north and south area. Now, that leaves the perpendicular docks as docks that they can use. It protects the seagrass beds the maximum possible by being out as far as it can be away from those beds so that the potential of the last remaining seagrass beds in that area can survive. So that's the plan that I would suggest that -- that's why I couldn't support the Conservancy's plan. The maximum width of the walkways in that area will be four feet unless the ADA requires a greater width. And if it does, it's the minimum width the ADA requires. There'll be no dredging and no riprap and there'll be no fueling at the docks. And that's the stipulations that I'm suggesting. For that reason, I can't support the Conservancy's plan. I think the Conservancy's plan is a good plan, but I think this one's better because the length of area that the access boardwalk is -- from the north to the south, it's left in the Conservancy plan, and it's still closer to the seagrass beds than I think it should be. I think the farther we can push that away from the seagrass beds in this case -- it might be 15, 20 feet -- we'd be in much better shape for those beds' survival rate. So that's my suggestion on -- well, anyway, that's what my statement is. I can't support your motion. COMMISSIONER VONIER: Mark, I'd like to say something. I do agree with you. I think we would be well advised to think about moving all of the finger piers close to the access -- to the walkway, even if we suffer a little punishment to the seagrass in that area. I think extending that long walkway is an unnecessary procedure. I don't think we need to run those finger piers all the way south. I think the closer you move to the access dock the better off you're going to be. Page 90 of 94 March 1, 2012 And as I say, you might impact some of the seagrass in that area, but I think I'd rather protect the larger part of the seagrass with having no walkways. CHAIRMAN STRAIN: Well, the problem I have is our rules don't allow us, that I can find, to impact that seagrass to that extent. So I can't -- myself, I couldn't vote for that, because in my mind it would be inconsistent with the code. I keep trying to find something consistent with the strict language of the code, and that's -- this is a scenario I came up with. I mean, it's just mine. Anybody else could -- if anybody else has another scenario, that's fine. It doesn't meet all the needs of the applicant, it doesn't meet all the requests of the public, but it's the best scenario I could find in my mind. MR. YOVANOVICH: Well, I'm just going to state for the record that that is a denial of the petition because without the riprap and without the dredging, we have zero docks. So just --you know, I understand your motivation, but those last two conditions mean there's no docks. And if your intent was to give us something, you gave us nothing with that proposal. CHAIRMAN STRAIN: Okay. MR. YOVANOVICH: I'm just stating it -- CHAIRMAN STRAIN: Well, let's just wait a minute. The way I read your documents is the riprap and the dredging only occurred along the parallel moorings. It didn't occur in the finger docks. I mean, you actually show a detail of it along there every 100 feet or every 100 foot blocks. So now you're telling me that's not the dredging that you're proposing to do? MR. HALL: Yeah -- no. The cross - sections clearly show with the finger piers that there's dredging done on some of the finger piers as well. COMMISSIONER BROUGHAM: Mark, suggestion. Can we take a vote on the motion -- CHAIRMAN STRAIN: Yeah, let's take a vote on the motion. I'm just -- COMMISSIONER BROUGHAM: -- and the second, and then if that fails, we can go on to -- CHAIRMAN STRAIN: I'm just stating my reason to not support the motion. It's not a bad motion. The Conservancy always -- I mean, most of the time they have very good ideas, so I'm not saying it's wrong. It's just -- it's not as good as I want to be, and I still find it inconsistent as far as the maximum protection to the seagrass beds in all the areas. So I won't support it. Is there any other -- anybody else have any discussion on that motion? (No response.) CHAIRMAN STRAIN: Okay. We'll do it by show of hand. All those in favor -- COMMISSIONER HOMIAK: What's the motion? CHAIRMAN STRAIN: The motion was to support the Conservancy's plan. Mr. Midney made the motion, Mr. Brougham seconded it. Does that -- is that -- does that read right? Does everybody understand it? COMMISSIONER BROUGHAM: Yes, sir. CHAIRMAN STRAIN: Okay. Is there -- we'll call for the vote. All those in favor, signify by saying aye and raising your hand. COMMISSIONER MIDNEY: Aye. COMMISSIONER KLEIN: Aye. COMMISSIONER BROUGHAM: Aye. CHAIRMAN STRAIN: Two in favor, three in favor. Okay. All those opposed, same sign. COMMISSIONER VONIER: (Raises hand.) COMMISSIONER SCHIFFER: (Raises hand.) COMMISSIONER AHERN: (Raises hand.) CHAIRMAN STRAIN: (Raises hand.) COMMISSIONER HOMIAK: (Raises hand.) COMMISSIONER EBERT: (Raises hand.) CHAIRMAN STRAIN: The motion fails 6 -3. Is there another motion? COMMISSIONER BROUGHAM: Well, I'll make a motion that we deny the BDE as currently submitted. Page 91 of 94 March 1, 2012 COMMISSIONER SCHIFFER: Second. CHAIRMAN STRAIN: Motion made by Mr. Brougham to deny the BDE as currently submitted, seconded by Mr. Schiffer. Discussion? COMMISSIONER AHERN: I would like a response back on the dredging from Tim. CHAIRMAN STRAIN: Well, let's -- the current motion has -- oh, you mean before you decide on this motion? COMMISSIONER AHERN: (Nods head.) CHAIRMAN STRAIN: Okay. Tim. MR. HALL: Yeah. And I apologize. My -- the permit exhibits that I have are not going to show this clearly at all, but it does show a -- I don't -- I mean, I don't have anything that you're even going to be able to see from the permit drawings. The -- they're not legible with the -- showing the dredge area, but it was about -- CHAIRMAN STRAIN: So how would I understand, then, that you intended to do that in the perpendicular? Because I was not trying -- my concern was where I saw the dredging on the plans I did -- that were clear, it showed the dredging in the areas to accommodate the parallel dockage. And when I met with you -all, I told you I had concerns about the parallel dockage right from the beginning. It's not the finger piers I have the concern about. So if we were -- I would have no problem allowing the dredging and riprap where the finger piers are going to go, but I did not want to see it happen in any other area. So that was my intention. MR. HALL: Okay. And I understand that. I know that it's shown -- on the cross - sections that are part of your submittal, there's a finger pier cross - section that does show the dredging there. CHAIRMAN STRAIN: Right. Oh, I didn't see that. Okay. But my intention from my part of it -- that plan that I'm showing you there, the intention was to eliminate the dredging and the riprap in the areas shown in pink. I didn't realize you had it in the other areas, and those areas don't concern me because of the depth of those areas. It's more the areas in pink. MR. HALL: Okay. CHAIRMAN STRAIN: They were closer to the seagrass beds in the other areas. But, anyway, that's just my intention. I'm not -- it has nothing to do with the motion on the floor. The motion on the floor was to deny the boat dock extension. It was seconded. Any further discussion? COMMISSIONER SCHIFFER: Well, I'd like to give a reason, that I don't think it protects the seagrasses as our GMP and our Land Development Code does. I do think that the waterways should be investigated -- you know, but it's a public waterway. At least by estoppel, the public is intending to use that. As it turns out, with that plat that came up, it might even be set aside for the public. And we do need to come up with reasons why we're -- you have others, Phil? COMMISSIONER BROUGHAM: I would also like to comment. I made that motion based upon the fact that I don't believe, of the primary criteria that Item No. -- Criteria No. 3 and Criteria No. 4 have been met. I question whether Criteria 1 has been met or not. On a secondary criteria, I don't feel that Criteria 4 and Criteria 5 have been met, particularly as concerns the seagrass. And as I read the staff report and so forth, all of the boathouse criteria, all six must be met. And in the staff report they state the Criteria 6 is not met. So, therefore, based on all of those factors, I made the motion to deny. CHAIRMAN STRAIN: Okay. Mr. Midney? COMMISSIONER MIDNEY: The reason why I'll be supporting the motion is because of the changes to the view, changes to the navigation and the congestion of the waterway, changes to the seagrass, which the dredging will be unavoidable, do serious damage to, and safety. CHAIRMAN STRAIN: Okay. Anybody else? Melissa? COMMISSIONER AHERN: I'll just add the reason I will not support that is because I do think the Dunes has a right to boat docks. Maybe the current design is not the best and some work could be done on that. And I'd agree with some of your compromises, but I do think they have a right to have boat docks. CHAIRMAN STRAIN: Bill? Page 92 of 94 March 1, 2012 COMMISSIONER VONIER: I will agree with Melissa. I think the Dunes has a right to some boat docks, just not in accordance with the plan submitted. CHAIRMAN STRAIN: Okay. What about -- Brad, did you having something else that you wanted to -- COMMISSIONER SCHIFFER: Just a comment. I think a yes vote is an outstanding vote for an Outstanding Florida Waterway. CHAIRMAN STRAIN: Anybody else? (No response.) CHAIRMAN STRAIN: Okay. Let's do this by hands again and information. All those in favor of the motion for denial, signify by raising your hand or saying aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER EBERT: Aye. COMMISSIONER KLEIN: Aye. COMMISSIONER BROUGHAM: Aye. CHAIRMAN STRAIN: One, two, three, four, five. Five in favor. Those against the motion? COMMISSIONER VONIER: (Raises hand.) COMMISSIONER AHERN: (Raises hand.) CHAIRMAN STRAIN: (Raises hand.) COMMISSIONER HOMIAK: (Raises hand.) CHAIRMAN STRAIN: Four against the motion. Okay. The motion succeeds as far as a denial goes. That's a denial on the boat docks but an affirmation on the master plan. MR. YOVANOVICH: Thank you. CHAIRMAN STRAIN: With that, we have finished the boat dock hearings and the Dunes issues. And we have to continue this meeting to 6th of March in this room at 9 o'clock in the morning. Ray, did you have anything? MR. BELLOWS: Can we respecify which petitions are going on the -- CHAIRMAN STRAIN: I was getting there. MR. BELLOWS: Oh, okay. CHAIRMAN STRAIN: Okay. The petitions that will be continued till the -- in the -- this is the order in which they'll be heard on March 6th, will be RZ- PL20110001572, SSP Associates, Inc.; CPSS2011 -1, Orange Blossom/Airport Crossroads Commercial Subdistrict; and then after that we will go into the balance of the EAR, both hearing and consent agenda. Been -- is there a motion to continue? MR. BELLOWS: Commissioner Strain. CHAIRMAN STRAIN: Go ahead. MR. BELLOWS: Can you also note on the record that the other item, the Wahl variance and boat dock are going to the 15th. Just to -- I know it's on the agenda. CHAIRMAN STRAIN: Sure, I'll be glad to. The last two items on our agenda that were noted to be continued to March 15th will be on that date as well, but they'll be after the ones I just announced. Oh, no. I'm sorry, March 15th is another week away -- VA- PL2011 -1410, the Wahl variance, and DBE- PL20110001409. I don't even know where that is, but those two will be continued until March 15, 2012. Is there a motion to approve? COMMISSIONER SCHIFFER: Mark, can I make a -- you know, I won't be here on the 6th, but I am leaving in the afternoon. Would it be okay if you did the EAR first? Because I'll come in in the morning early and do that. And the only reason I'm asking that is there is that stuff from the housing department we worked out that -- CHAIRMAN STRAIN: Well, there's an easy way to resolve that. Is anybody here objecting to do the EAR first on the 6th? COMMISSIONER EBERT: No. CHAIRMAN STRAIN: No. They're all gone, so let's move the EAR up first on the 6th, and then we'll go into the other two regulars. COMMISSIONER SCHIFFER: I can cover that. Page 93 of 94 March 1, 2012 CHAIRMAN STRAIN: Okay, sounds good. MR. HALL: That helps me out, actually. CHAIRMAN STRAIN: Is there a motion to continue? COMMISSIONER AHERN: Motion. CHAIRMAN STRAIN: Made by Melissa. Seconded by? COMMISSIONER VONIER: By Bill. CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER VONIER: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER AHERN: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER EBERT: Aye. COMMISSIONER KLEIN: Aye. COMMISSIONER BROUGHAM: Aye. CHAIRMAN STRAIN: Motion carries, thank you. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 5:45 p.m. COLLIER COUNTY PLANNING COMMISSION MARK TRAIN, CHAIRMAN ATTEST DWIGHT E. BROCK, CLERK These minutes approved by the Board on as presented y or as correct d TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICES, INC., BY TERRI LEWIS, COURT REPORTER AND NOTARY PUBLIC. Page 94 of 94 CCPC RESOLUTION NO. 12- A RESOLUTION DENYING PETITION NUMBER BDE- PL2010- 979 FOR A 261 -FOOT BOAT DOCK EXTENSION OVER THE MAXIMUM 20 FEET ALLOWED BY THE LAND DEVELOPMENT CODE FOR A TOTAL PROTRUSION OF 281 FEET FROM THE MEAN HIGH WATER LINE WHICH WILL ALLOW A NEW DOCKING FACILITY OF APPROXIMATELY 11,300 SQUARE FEET OF OVER WATER STRUCTURE TO ACCOMMODATE 49 BOAT SLIPS ON PROPERTY LOCATED IN THE DUNES PLANNED UNIT DEVELOPMENT AT 11495 VANDERBILT BEACH DRIVE IN SECTION 20, TOWNSHIP 48 SOUTH, RANGE 25 EAST, COLLIER COUNTY, FLORIDA. WHEREAS, the Legislature of the State of Florida in Chapter 125, Florida Statutes, has conferred on all counties in Florida the power to establish, coordinate and enforce zoning and such business regulations as are necessary for the protection of the public; and WHEREAS, the County pursuant thereto has adopted a Land Development Code (LDC) (Ordinance 04 -41, as amended) which establishes regulations for the zoning of particular geographic divisions of the County, among which are provisions for granting extensions for boat docks; and WHEREAS, the Collier County Planning Commission (CCPC), being duly appointed, has held a properly noticed public hearing and has considered the advisability of a 261 -foot extension over the maximum 20 -foot limit provided in LDC Section 5.03.06 to allow a 281 -foot protrusion for an 11,300 -foot boat dock facility on submerged lands adjacent to the Dunes Planned Unit Development; and WHEREAS, the CCPC has found as a matter of fact that satisfactory provision and arrangement have been made concerning all applicable matters required by LDC Section 5.03.06; and WHEREAS, all interested parties have been given the opportunity to be heard by this Commission in public meeting assembled, and the Commission having considered all matters presented. NOW, THEREFORE, BE IT RESOLVED BY THE COLLIER COUNTY PLANNING COMMISSION OF COLLIER COUNTY, FLORIDA that: Petition Number BDE- PL2010 -979, filed on behalf of Vanderbilt Partners II, Ltd by Timothy Hall of Turrell, Hall & Associates, Inc., with respect to the property hereinafter described as: See Exhibit "A" Vanderbilt Partners II, Ltd/ BDE- PL2010 -979 3/05/12 Page I of be and the same is hereby DENIED. BE IT FURTHER RESOLVED that this Resolution be recorded in the minutes of this Commission and filed with the County Clerk's Office. This Resolution adopted after motion, second and majority vote. Done this I S + day of Lt.Y CGS , 2012. ATTEST: Nick Casalanguida, Deput inistrator Growth Management Division Approved as to form and legal sufficiency: A, X A-- Heidi Ashton -Cicko Assistant County Attorney Section Chief, Land Use /Transportation Attachment: Exhibit A — Legal Description CP \10- CPS - 01042 \72 COLLIER COUNTY PLANNING COMMISSION COLLIER COUNTY, FLORIDA Mark P. Strain, Chairman Vanderbilt Partners II, Ltd/ BDE- PL2010 -979 3/05/12 Page 2 of 2 All of Wiggins Pass Landings Unit No. 1 Addition, according to the plat thereof recorded in Plat Book 10, at Page 8t of the Public Records of Collier County Florida, and all of Wiggins Pass Landings Unit No.1, according to the plat thereof recorded in Plat Book 10, at Page 44 of the Public Records of Collier County, Florida, being more particularly described as follows: Beginning at the southeast corner of Lot 4 of said Wiggins Pass Landings Unit No. 1 Addition; thence N.89 152'20 "W. along the southerly line of said Lot 4, a distance of 599.96 feet to the southwest corner of said Lot 4, the same being the southeast corner of Lot 10, Block 1 of said Wiggins Pass Landings Unit No. 1: thence N.89 °52'20 "W. along the southerly line of said Wiggins Pass Landings Unit No. 1, a distance of 1400.65 feet to the southwest corner of said Wiggins Pass Landings Unit No.1; thence N.00 014'00 "W. along the westerly line of said Wiggins Pass Landings Unit No.1, a distance of 1608.90 feet; thence N.34 026'15 "E. along said westerly line, a distance of 439.48 feet to a point on the northerly line of said Wiggins Pass Landings Unit No.1; thence N.87 148100 "E. along said northerly line, a distance of 1481.48 feet to the northeast corner of lot 3, block 3 of said Wiggins Pass Landings Unit No.1; thence S.02 012'00 "E. a distance of 163.77 feet to the northwest corner of Lot 1, Block 3 of said Wiggins Pass Landings Unit No.1; thence N.87 048'00 "E. a distance of 200.00 feet to the northeast corner of said Lot 1; thence S.02 112'00 "E. along the easterly line of said Wiggins Pass Landings Unit No.1, a distance of 668.16 feet to the southeast corner of Lot 1, Block 1 of said' Wiggins Pass Landings Unit No.1, the same being the northeast corner of lot 1 of said Wiggins Pass Landings Unit No.1 Addition; thence S.02 °12'00 "E. along the easterly line of said Wiggins Pass Landings Unit No.1 Addition, a distance of 1209.93 feet to the point of beginning, parcel contains 88.56 acres, more or less. Exhibit A RESOLUTION NO. 12 — 02— A RESOLUTION OF THE COLLIER COUNTY PLANNING COMMISSION RELATING TO PETITION NUMBER PDI - PL2012 -159 FOR INSUBSTANTIAL CHANGES TO THE DUNES PLANNED UNIT DEVELOPMENT MASTER PLAN FOR THE PURPOSE OF DEPICTING THE AREA WHERE DOCKS MAY BE CONSIDERED THROUGH A BOAT DOCK EXTENSION APPLICATION IN THE MANMADE PARTION OF THE WATERWAY LABELLED "CONSERVATION EASEMENT/WATERWAY" FOR PROPERTY LOCATED AT 11495 VANDERBILT DRIVE IN SECTION 20, TOWNSHIP 48 SOUTH, RANGE 25 EAST, COLLIER COUNTY, FLORIDA. WHEREAS, the Legislature of the State of Florida in Chapter 125, Florida Statutes, has conferred on all counties in Florida the power to establish, coordinate and enforce zoning and such business regulations as are necessary for the protection of the public; and WHEREAS, the County pursuant thereto has adopted a Land Development Code (Ordinance No. 04 -41, as amended) which establishes regulations for the zoning of particular geographic divisions of the County; and WHEREAS, the Collier County Planning Commission is authorized by the Board of County Commissioners to grant insubstantial changes to PUD Master Plans in accordance with Subsections 10.02.13.E.1 and 10.02.13.E.2.a.4 of the Land Development Code of Collier County; and WHEREAS, the Collier County Planning Commission, being the duly elected constituted Planning Commission for the area hereby affected, has held a duly noticed public hearing and has considered the advisability of Petition No. PDI— PL2012 -159, insubstantial changes as shown on the revised Dunes Planned Unit Development Master Plan, being Exhibit "A" to Ordinance No. 2000 -74. The Collier County Planning Commission has found as a matter of fact that satisfactory provision and arrangement have been made concerning all applicable matters required by said regulations and in accordance with Subsections 10.02.13.E.1 and 10.02.13.E.2.a.4 of the Collier County Land Development Code; and WHEREAS, the proposed changes to the Master Plan do not change the amount of acreage to be retained for preservation, conservation, recreation or open space; and WHEREAS, all interested parties have Commission in public meeting assembled and presented. Vanderbilt Partners II, Ltd. / PDI- PL2012 -159 Rev. 3/30/12 1 of 2 been given opportunity to be heard by this the Commission having considered all matters NOW, THEREFORE, BE IT RESOLVED BY THE COLLIER COUNTY PLANNING COMMISSION OF COLLIER COUNTY, FLORIDA, that: Petition Number PDI- PL2012 -159 filed on behalf of Vanderbilt Partners II, Ltd. by Karen Bishop of PMS Inc. of Naples, be and the same is hereby approved for an insubstantial change to the PUD Master Plan having the effect of revising the Master Plan to depict the area where docks may be considered through a boat dock extension application in the manmade portion of the waterway labeled "Conservation Easement/Waterway ". BE IT FURTHER RESOLVED that this Resolution relating to Petition Number PDI - PL2012 -159 be recorded in the minutes of this Commission and filed with the County Clerk's Office. This Resolution adopted after motion, second and majority vote. Done this !' ATTEST: day of Mr , 2012. Nick Casalanguida, Deputy dministrator Growth Management/Planning & Regulation Division Approved as to form and legal sufficiency: LL64 A-- a-0- H idi Ashton -Cicko Assistant County Attorney Section Chief, Land Use /Transportation Attachment: Exhibit A — PUD Master Plan 12 -CPS- 01144141 Vanderbilt Partners II, Ltd. / PDI- PL2012 -159 Rev. 3/30/12 2 of 2 COLLIER COUNTY PLANNING COMMISSION COLLIER COUNTY, FLORIDA Mark 11. Strain, Chairman . . . . . . . . . . . . . . . . . . . . ( . . . . . . ..................... .. .. . . . . . . . . . . . PRESERVE . . . . . . . . . . . ....... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......ili . . . . . . . . . . . . ......III . . . . . . . . . . . . . . . . . . . . . . . • . . . . . �e . . . . . . . . . . . . . o 'o ifil 2-6 s— rEET PRESERVE II LEGEND . . . . . . . . . . . . . .. CONSERVATION EASEMENT/ WETLAND/UPLAND PRESERVE . . . . . . . . . . . . . CONSERVATION EASEMENT/ . . . . . . . . . . WATERWAY goPART I CONSERVATION EASEMENT/ • WHERE WATERWAY ERE O."S . . . . . . . . . . . . MAY BE CONSIDERED THROUGH A BOAT DOCK EXTENSION APPLICATION . . . . . . . . . . . . . . . . . . . . . . . • LAND USE AREAS CONCEPTUAL AND SUBJECT To RELOCATION/ . . . . . . • . • • I 1 CHANGE PRIOR TO CONSTRUCTION PERMITTING. . . . . . . Rll PRESERVE NOTE: . . . . 21' BdARD&LK TO DOCK rLIrY. --i I �— ACI - VAN THE AREA DEPICTED AS CONSERVATION EASEMENT/WATERWAY WILL ALLOW THE (� AREA - - - - - - - • �-Rl �IUL2-OVCR AREA PRaCCT M ECT E--- ACCESS USE OF THE CONSERVATION . . . . • • • . . . . . . . . • . EASEMENT/WATERWAY FOR BOATING • • . . • . . . • . . • AND OTHER RECREATIONAL ACTIVITIES. . . . . . . . . . . . . . . NO BOAT DOCKS SHALL BE PERMITTED WITHIN WATER TURKEY BAY. THE BOAT • . . • . . . . . • . • . II ly DOCKS WILL BE AN ACCESSORY USE . . . . • .. TO RESIDENTIAL. tA 03■ . • • • • • R2 R3 ■ ■ IN f* — ** "B—L —IL DUNE AREA - — -- — - T 7 �j , U'E'B L, AVENUE PUD MASTER PLAN - EXHIBIT A