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CCPC Minutes 03/15/2012 RAGENDA COLLIER COUNTY PLANNING COMMISSION WILL MEET AT 9:00 A.M., THURSDAY, MARCH 15, 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 ADDENDA TO THE AGENDA 4. PLANNING COMMISSION ABSENCES 5. APPROVAL OF MINUTES January 26, 2012 (CCPC /EAR based GMP Amendments), February 16, 2012 6. BCC REPORT - RECAPS 7. CHAIRMAN'S REPORT 8. CONSENT AGENDA ITEMS A. PDI- PL2012 -159, The Dunes PUD, a Resolution of the Collier County Planning Commission relating to Petition Number PDI- PL 2012 -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, A1CP, RLA, Principal Planner] 9. ADVERTISED PUBLIC HEARINGS A. Note: This item has been continued from the November 3, 2011 CCPC meeting, the November 17, 2011 CCPC meeting, then again from the January 5, 2012 CCPC meeting: CU- PL2009 -1412: Alico Land Development, Inc. — A Resolution of the Board of Zoning Appeals of Collier County, Florida providing for the establishment of a Conditional Use to allow extraction or earthmining and related processing and production within a Rural Agricultural Zoning District with Mobile Home Overlay and Rural Land Stewardship Area (RLSA) Overlay pursuant to Subsection 2.03.01.A.1.c.1 of the Collier County Land Development Code for a project to be known as Lost Grove Mine located in Sections 5, 6, 7, 8 and 18, Township 46 South, Range 28 East, Collier County, Florida. [Coordinator: Kay Deselem, AICP, Principal Planner] Note: This item has been continued from the March 1, 2012 CCPC meeting: B. 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] C. Note: This item has been continued from the March 1, 2012 CCPC meeting: BDE- PL20110001409: Wahl Boat Dock Extension - A Resolution of the Collier County Planning Commission relating to Petition Number BDE -PL201 10001409 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] 10. OLD BUSINESS 11. NEW BUSINESS 12. PUBLIC COMMENT ITEM 13. DISCUSSION OF ADDENDA 14. ADJOURN CCPC Agenda/Ray Bellows /jmp March 15, 2012 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY PLANNING COMMISSION Naples, Florida, March 15, 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, Land Development Services Director Raymond V. Bellows, Planning Manager, Zoning Heidi Ashton - Cicko, County Attorney's Office Tom Eastman, School District Representative Page 1 of 87 CHAIRMAN: Mark P. Strain William H. Vonier Brad Schiffer Paul Midney Karen Homiak Diane Ebert Barry Klein Phillip Brougham Melissa Ahern (present after the luncheon recess.) March 15, 2012 CHAIRMAN STRAIN: Good morning, everyone. If everybody will please take their seats. Welcome to the Thursday, March 15th meeting of the Collier County Planning Commission. As we get into the discussion of the agenda, I will relay to you how complicated today's meeting's going to be. So please rise to be -- yeah, to be sworn in -- yeah, for Pledge of Allegiance. (The Pledge of Allegiance was recited in unison.) CHAIRMAN STRAIN: Okay. Will the secretary please do the roll call. 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 is not here yet. CHAIRMAN STRAIN: He usually shows up right -- a couple minutes after. COMMISSIONER HOMIAK: Ms. Ahern will be late. Mr. Strain? CHAIRMAN STRAIN: Here. COMMISSIONER HOMIAK: Ms. Homiak is here. Ms. Ebert? COMMISSIONER EBERT: Present. COMMISSIONER HOMIAK: Mr. Klein? COMMISSIONER KLEIN: Here. COMMISSIONER HOMIAK: Mr. Brougham? COMMISSIONER BROUGHAM: Here. CHAIRMAN STRAIN: Okay. Thank you. Addenda to the agenda. One item that has been at least timed for convenience -- there's an item on our agenda, two of them for the Wahl variance. It's a boat dock extension and a variance request on the Isles of Capri. In order to save members of the public who may be here wanting to attend that and the applicant, we will not hear that before one clock. Now, that doesn't mean we're going to hear it at one, but I can tell by the amount of work we have to do this morning on the Lost Grove Mine, we won't be hearing the Wahl issues until sometime after one o'clock today. So if you're here for that one, at least you can relax until then. And I don't believe there's any other addenda to the agenda. Anybody? (No response.) CHAIRMAN STRAIN: Okay. Planning Commission absences. Our next meeting is our regularly monthly -- scheduled monthly meeting in the first week of April. Does anybody know if they're not going to be here? COMMISSIONER KLEIN: I'll be here. CHAIRMAN STRAIN: You'll be here? Thanks Barry. We need that. COMMISSIONER KLEIN: I buy dessert today. CHAIRMAN STRAIN: Let the record show Paul Midney is now here. I told you, two minutes after. Paul, hi. COMMISSIONER MIDNEY: Good morning. CHAIRMAN STRAIN: Good morning. Last time we had a continuation of a meeting on March 6th, and not everybody was here, so I want to repeat some issues that were brought up at that date. On April 12th we have a special meeting on the Master Mobility Plan, and we were going to try to go into the LDC amendments that afternoon. I have been told this room is booked that afternoon, so we can't do that. So on April 12th we will have a meeting just in the morning, then we'll come back on April 13th and have an all -day meeting on the LDC amendments, or at least the first round. We'll probably have several meetings on these, but that would be the first. And then on June 19th -- and if anybody has problems with these dates, just please try to let me know. On June 19th from nine to noon we will have a second meeting on the Mobility Master Plan. It will be just one of those Page 2 of 87 March 15, 2012 phasing introductory, up -to- speed -type meetings, so that will just be three hours. Now, we're trying to schedule special meetings between our regular meetings; that way if we have an LDC meeting or a Master Mobility Plan meeting, we can do it on an off week. Hopefully we can have more time to study it then. That's why -- those dates in some cases are picked; other cases that's the only time this room is open. So that's the only things, I believe. Bill, do you remember anything else -- that covers most everything to date, doesn't it? MR. LORENZ: That's right. CHAIRMAN STRAIN: Because I know we're looking at more dates for LDC, but I don't recall if we have any yet. MR. LORENZ: We don't have them. CHAIRMAN STRAIN: Okay. Next up is the approval of minutes. We had the minutes dispersed electronically January 26th. And we'll start with that one. Does anybody want to make a motion or changes? COMMISSIONER HOMIAK: Motion to approve. CHAIRMAN STRAIN: Motion made by Ms. Homiak. Seconded by? COMMISSIONER SCHIFFER: Second. CHAIRMAN STRAIN: Mr. Schiffer. Discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER VONIER: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER EBERT: Aye. COMMISSIONER KLEIN: Aye. COMMISSIONER BROUGHAM: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 8 -0. Second one is the February 16, 2012, regular meeting. Is there a motion or changes? COMMISSIONER HOMIAK: Just Mr. Vonier's name was spelled incorrectly throughout there. COMMISSIONER VONIER: Thank you. CHAIRMAN STRAIN: Terri, do you have -- do you know the correct spelling of the name now? I don't know if it was you. COMMISSIONER HOMIAK: That wasn't -- CHAIRMAN STRAIN: That wasn't you? Aha. Wait till Cherie comes back. Okay. You want to make a motion to approve subject to that? COMMISSIONER HOMIAK: Subject to that. COMMISSIONER EBERT: I'll second. CHAIRMAN STRAIN: Seconded by Ms. Ebert. All in favor, signify by saying aye. COMMISSIONER VONIER: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER EBERT: Aye. COMMISSIONER KLEIN: Aye. Page 3 of 87 March 15, 2012 COMMISSIONER BROUGHAM: Aye. CHAIRMAN STRAIN: Anybody opposed? (No response.) CHAIRMAN STRAIN: Motion carries 8 -0. BCC report and recaps, Ray? MR. BELLOWS: Yes. On March 13th the Board of Commissioners heard the PUD amendment for Sabal Bay. They approved it 5 -0 subject to the CCPC conditions, plus they made a modification to the ALF use. They required a Type C buffer to be placed on the tract where there is an ALF if an ALF is developed. The Type C buffer would add an additional tree buffering at 14 feet height, I believe, was what they stipulated. And I believe they may have altered the height of the building somewhat. Maybe Kay can elaborate on the height of the building. MS. DESELEM: Yes. Good morning. For the record, Kay Deselem. Yes, they incorporated a Type C buffer for any ALF use that is along U.S. 41 frontage, and they changed the height of the ALF use in the overall PUD to 60 feet zoned and 75 feet actual. CHAIRMAN STRAIN: And what was it prior to that? I can't recall. MS. DESELEM: I want to say 80 and 90. That runs in my mind. I'm not certain. CHAIRMAN STRAIN: This board's job is to try to ferret out all the issues and give the Board of County Commissioners the best complete package that we can. How did these issues come up? Was it something we should have known about? MS. DESELEM: My understanding is the applicant met with the commissioners and offered the height reduction up front. So, I mean, we would have had no knowledge of that offer on the table. And then as they were doing their final motion, and they were talking about the D buffer, it was just a discussion that came up that they would rather see a C, so they changed it to a C. CHAIRMAN STRAIN: Okay. I just want to make sure if we can find out ways that we can provide a more complete package, things that are missing, we will do it, so -- COMMISSIONER BROUGHAM: If I might, I watched the meeting on Tuesday, and there was comment that the application was in conformance with the Land Development Code requirements as to buffering and setbacks and so forth, so there wasn't any dispute about that, but they were concerned about the height of the building along U.S. 41, and that got into the discussion where the Type C buffer came into play and was brought up by Mr. Coyle, and everyone agreed to it, so -- CHAIRMAN STRAIN: Okay. Thank you. Thanks, Kay. MR. BELLOWS: The board also approved the PUD amendment for Tuscany Reserve on the summary agenda. CHAIRMAN STRAIN: Great. Thank you. Chairman's report. Well, my issues are going to deal mostly with the activities we have today, so I'll just -- as we open up each one, I'll present my issues on that. So let's move forward, then, into the consent agenda. Oh, there is one thing in chairman's report. Actually, it's more important than some of these things. Diane Ebert, Heidi Ashton, and Steve Williams in the back and Jeff Klatzkow, who is hiding somewhere, have all had birthdays in this past week or so. So, congratulations. Happy Birthday to all of you. It's good to hear. (Applause.) CHAIRMAN STRAIN: And Diane actually did some cooking. COMMISSIONER EBERT: Yeah -- no. CHAIRMAN STRAIN: So at some point today I'm sure we'll enjoy what she concocted. So Happy Birthday, everyone. The first thing up today is the consent agenda. The consent agenda is on the Dunes PUD. It's PDI- PL2012 -159. Consent agenda items are purely for the acknowledgment that the direction given to staff by our stipulations and the vote on a particular item are relayed correctly in the paperwork that follows that eventually goes on to record. So there isn't a public process for this as far as public speakers. It's purely acknowledgment that what we Page 4 of 87 March 15, 2012 voted on is on the page. There may be some confusion over that because I understand there was a news article that may have led people to think differently, but that is the rules. So with that in mind, the consent agenda on PDI- PL2012 -159, the Dunes PUD, we all have it in our packet. Does anybody have any comments about the graphic? Go ahead, Brad. COMMISSIONER SCHIFFER: Oh, I just wanted to make sure, the only thing I received is the Exhibit A in two scales; is that all we all got? COMMISSIONER BROUGHAM: That's what I got. CHAIRMAN STRAIN: Yeah. I got it in one scale. I don't know about -- I got one Exhibit A in one scale -- COMMISSIONER SCHIFFER: And then a large plan. CHAIRMAN STRAIN: Oh that, I'm sorry. Yeah, the big one. COMMISSIONER EBERT: That's all I got also. CHAIRMAN STRAIN: Right. COMMISSIONER SCHIFFER: And the question is these changes to Exhibit A. I don't remember any of that being part of the vote. First of all, I think any document that is changed, the dates and all that should be changed in the title block and everything, and note what the change would have been for, so that's confusing that they didn't do that. Secondly, they added an area that I don't remember us ever discussing whether that's the area that we would be allowed to have a boat dock through a boat dock extension application. They -- they add some notes to the boardwalk and stuff like that. But the problem is I don't remember any conversation of amending this exhibit or certainly amending it this way. CHAIRMAN STRAIN: That was the motion. COMMISSIONER HOMIAK: That was the motion. COMMISSIONER SCHIFFER: That we were expecting them to draw in? CHAIRMAN STRAIN: Yeah. COMMISSIONER HOMIAK: Yes. CHAIRMAN STRAIN: That was specifically what was said. We wanted them -- instead of showing a dock configuration, which we were concerned that we'd be bound to if they showed it that way, we requested they put a cross - hatched area in to show the general area in which they may be allowed to have a boat dock. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: And that was voted on 5 -4, so -- COMMISSIONER SCHIFFER: That's what we got then, okay. CHAIRMAN STRAIN: I thought it was -- yeah, I thought it explicitly met our intention from the vote. So anybody else? (No response.) CHAIRMAN STRAIN: You know, this is not a vote to say "yea" or "nay" for the docks. It's simply to acknowledge that this is consistent with the direction provided by the motion. So all those in favor of this consent agenda item, signify by saying aye. COMMISSIONER VONIER: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER KLEIN: Aye. COMMISSIONER BROUGHAM: Aye. CHAIRMAN STRAIN: Anybody opposed? Motion carries. COMMISSIONER EBERT: Aye. CHAIRMAN STRAIN: Pardon me? COMMISSIONER EBERT: I voted against it originally, so I'm -- CHAIRMAN STRAIN: That has nothing to do with the consent agenda. COMMISSIONER EBERT: Okay. So we're just going to --okay. Page 5 of 87 March 15, 2012 CHAIRMAN STRAIN: You could have voted for or against it. This is only acknowledgment that this reflects the intent of the motion. COMMISSIONER EBERT: The intent of what our votes were last week? CHAIRMAN STRAIN: Right. So are you voting for this motion? COMMISSIONER EBERT: I am voting for it, the consent. CHAIRMAN STRAIN: The motion in favor of the consent item is 8 -0. All that does is affirms the direction provided in the original vote. And that's it for the consent agenda items, and that's it for the Dunes. ** *Next item up is the advertised public hearing. And this is one that has grown to be -- take a record from what my -- at least my sitting on this board. We've never had so many meetings over one item that I can recall. This is CU- PL2009 -1412, Alico Land Development, Inc. 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: Disclosures from the Planning Commission. Start with Mr. Vonier. COMMISSIONER VONIER: Staff, including the county school staff, and the attorney for the applicant. CHAIRMAN STRAIN: Okay. County school staff, you don't mean Tom Eastman, do you? COMMISSIONER VONIER: No. CHAIRMAN STRAIN: Okay. Brad? COMMISSIONER SCHIFFER: I've had nothing since the last meeting. CHAIRMAN STRAIN: Paul? COMMISSIONER MIDNEY: I talked with Nicole and Bruce. CHAIRMAN STRAIN: Okay. And I have talked with the applicant, their attorneys, and I've talked with Nicole numerous times, and there may have been somebody else. I think Marcia Cravens submitted something. I didn't know what it was until days afterwards, but -- then she submitted it at the last Planning Commission meeting, so that's the best I can remember at this time. Go ahead, Ms. Homiak. COMMISSIONER HOMIAK: Nothing since the last time. I think I spoke to Bruce Anderson briefly in this room. Oh, I'm sorry. Nothing since the last time. I think I spoke to Mr. Anderson briefly in this room at one of the meetings. CHAIRMAN STRAIN: Okay. Thank you, Ms. Ebert. COMMISSIONER EBERT: Nicole Johnson's the only one since our last. CHAIRMAN STRAIN: Barry? COMMISSIONER KLEIN: I have not spoken to anyone since the last meeting. CHAIRMAN STRAIN: Phil? COMMISSIONER BROUGHAM: Nothing since the last meeting. CHAIRMAN STRAIN: Okay. Thank you. The procedure for today is going to follow as best we can the outline laid out at the last meeting which this was continued from. The applicant is introducing some new expert testimony both in written form and, I believe, in presentation form on acoustics and another one on visual. Because of those presentations, we are going to allow public comment limited strictly to those two items. And if it gets out of hand, we will ask you to sit down and discontinue your discussion. So I'm suggesting, and not strongly suggesting, everybody in the public keep that in mind when you want to talk. We already heard a lot of public input on many of the other items. So I want to make sure today we stay on focus. The intention today is to try to finish today on Lost Grove. After the applicant's presentation, we will have, obviously, questions from the Planning Commission. We will go into public comments. After the last public commenter will be Judge Starnes. I promised him that two or three meetings ago, and we will follow that. The applicant will then have any concluding remarks that they would like to have. At that time the Planning Commission can finish up with its questions. We will then close the public hearing and then go into our discussion and motion. So that's the general outline that we'll follow today. Page 6 of 87 March 15, 2012 There is an issue with -- we received an objection to some documentation that was distributed to the Planning Commission at our meeting that we had two weeks ago. That meeting was primarily about the Dunes. But if you recall, we received a package from staff as their distribution for changes to this Lost Grove Mine application, and at the same time a member of the public came up and wanted to distribute something, and she was directed just to distribute it to us. It turned out it was also for the Lost Grove Mine. And then that is, I guess, where the objection from the applicant has risen. And I want to address that up front, because I met with the County Attorney's Office trying to understand if the objection by Mr. Menzies is something we need to uphold or we should, as a board, allow that written record. And, Heidi, do you want to tell us your conclusion on that? MS. ASHTON- CICKO: Yes, I would. First of all, I've reviewed all the minutes up to date, and where we are in your process is we are at the rebuttal by the applicant, and all the rebuttal has been concluded except for the issues of noise and sound. So there were two documents that were submitted; one was distributed by the Southwest Growth Coalition, and that was forwarded directly to you, and then there was another document that was submitted by Lee County that went to Ms. Deselem which was a summary of the review of the mining analysis by Gary Dannon Miller. Both of those documents relate to hydrology, and they don't relate to the issues that are before you today of sound and visual. So, therefore, I've opined that they've not been timely submitted. However, your rules do allow you at your discretion to accept documents that you think are necessary to decide the issue. So with that said, I want to disclose that that is available to you; however, I've opined that those documents have not been timely submitted with respect to the issue of hydrology. CHAIRMAN STRAIN: Okay. And so we have two sets of documents, one that was distributed to us, although I'm not sure everybody may have read it at the time because it wasn't part of our accepted package prior to that point, and another that apparently came into staff, and I don't even think it's been distributed yet. So let's take them both separately. The first package that we got a couple weeks ago, it was distributed to us infonnally at this meeting during one of the breaks by a member of the public. I have not reviewed it. Right after it was distributed I saw the objection from Mr. Menzies. Before I reviewed it, I wanted to make sure that I wasn't opening the door to a procedural error by looking at documentation that we may not have had the -- that may not have come through in the right process. It isn't until last night, I think, or yesterday that Heidi mentioned that it could be voted on by this board to be accepted into record if it has a relevance to our decisions involving this case. So I'm going to ask -- I guess ask the panel what they feel they want to do with this information. Phil? COMMISSIONER BROUGHAM: I received the document in question; however, I did not review it at all. In fact, I haven't even opened it up. CHAIRMAN STRAIN: Paul? COMMISSIONER MIDNEY: I didn't review it, and I think that it's material that we've already covered, and I think that the person who submitted it should have submitted it at the right time. CHAIRMAN STRAIN: I certainly tend to agree with that statement. Anybody else? COMMISSIONER VONIER: There's been adequate time for anyone to submit information. CHAIRMAN STRAIN: And I'm inclining to agree with you -all on this, because it -- to keep this material keep coming in and expecting us to be prepared to go through it four meetings over and over again when we're done with it and focus on new issues coming in -- and the package that we got was pretty intense -- I'd just as soon that we not accept that material into evidence. Does anybody -- if that's the agreement of the board, can I get a motion to that effect? COMMISSIONER HOMIAK: I'll make that motion. CHAIRMAN STRAIN: Ms. Homiak made a motion. COMMISSIONER BROUGHAM: I'll second that. CHAIRMAN STRAIN: Second by Mr. Brougham. The motion is, just so we understand, is not to accept the package that was distributed to us at our last meeting into evidence, into the record. Is that agreeable with the motion Page 7 of 87 March 15, 2012 maker and second? COMMISSIONER BROUGHAM: Yes, sir. COMMISSIONER HOMIAK: Yes, sir. CHAIRMAN STRAIN: Okay. Discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER VONIER: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: 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 8 -0. Second package comes in under the same auspices. It was a package from Lee County. We have not seen it yet, so it would be hard to know how it would impact our hearing, but at the same time it's one of those issues that could have came in at any time prior to now. If it has to do with acoustics and visual, they need to be here to present their case on that. And if they're here today, fine; they'll be allowed to discuss it. I'm -- myself, I'm inclined to follow what we just did with the first one on the second one. Anybody have any different mindset? Is there a motion? COMMISSIONER EBERT: Well, we have not seen it. CHAIRMAN STRAIN: So -- COMMISSIONER BROUGHAM: I'll make a motion that we do not accept the second package. COMMISSIONER KLEIN: Seconded. CHAIRMAN STRAIN: Seconded by Barry, made by Mr. Brougham. Discussion? (No response.) CHAIRMAN STRAIN: All in favor, signify by saying aye. COMMISSIONER VONIER: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER MIDNEY: 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 8 -0. Okay. I think that resolves the first objection that was filed by Mr. Menzies. If it doesn't, I certainly would like you to explain to us any concerns that you have if there are any. If I don't see you come up here, I'll assume there aren't any further. Okay. Let's move on to the presentation. I don't know who from your side's going to do it, Mr. Anderson. MR. SCHROTENBOER: Good morning. CHAIRMAN STRAIN: Good morning. MR. SCHROTENBOER: For the record, Don Schrotenboer, president of Alico Land Development, the applicant. CHAIRMAN STRAIN: I don't think his mike's on, Ray. Page 8 of 87 March 15, 2012 MR. SCHROTENBOER: Testing. Is that better? COMMISSIONER BROUGHAM: We just need to shorten your height. MR. SCHROTENBOER: Does that work? Testing. COMMISSIONER EBERT: It's not working. MR. SCHROTENBOER: Testing, one, two. CHAIRMAN STRAIN: That's better. MR. SCHROTENBOER: Does that work yet? CHAIRMAN STRAIN: Yeah. MR. SCHROTENBOER: That one. Thanks, Ray. Good morning, again. Thank you very much for your continued patience. And I appreciate that that "thank you" is probably getting worn out a little bit. But trust me, I do truly appreciate your continued focus and patience in looking at this and evaluating this application. By your own admittance, it certainly has been an unusual and unorthodox and very complicated application before you; probably one of the most complicated in some time. And we certainly, as you do, look forward to completing this process today in one fashion or another. Although with my words of being unusual and unorthodox and complicated, I think, though -- I think we can truly say that the hearing process has allowed for a tremendous amount of input into this project. Through the public input, your request for additional information, and our responsiveness to that input, I think we certainly have forged a better project in relations to compatibility with the surrounding neighbors than where we were three or four months ago when we started this process. So, once again, thank you for that. I think these changes in demonstrating a better project are demonstrated by the recent changes that you will learn more about today. The elimination of direct access onto Corkscrew Road; the reduction of the mining lake size in itself by 79 acres; the increased setbacks to a minimum of 500 feet in the areas that are most highly populated, and I say that loosely. In the southwest corner, some buffers of over 1,200 feet; an increased height of the perimeter landscape berm to 12 feet; and through what has been a really difficult development of specific operational processes far in advance of where we ever anticipated going, we have learned and are going to utilize additional stockpiles from the overburden and from the aggregate itself to substantially reduce the noise in the surrounding area. And, again, in our presentation, you will hear more specifically about that. Again, all of these responses are because of your input that we have received, and we appreciate that. As I said, later on in just a moment you'll be hearing more specific details about the noise analysis -- and in all due fairness to the consultant, I think it's referred to as an environmental acoustic analysis. I think noise analysis is easier and better -- as well as the visualizations of what could be expected to be seen out at the site in various locations at any given time. These changes that I have briefly run through were communicated with the residents in a neighborhood meeting. On Saturday, February 25th at 9:30 out on the site of Lost Grove Mine, we invited and hosted a neighborhood meeting. Twelve days in advance of the 25th, 67 invitations were sent out to the neighborhood. We used a radius of 1,500 feet from the perimeter boundary in that notification, and there were a total of nine who attended that day. Of the nine, seven were of the 67 that were invited. One resident lived beyond that 1,500 -foot perimeter and found out about it from the neighbor and came, as well as the Conservancy of Southwest Florida had a representative there as well and was most welcome. What we did is we covered the highlights of the proposed changes of the reduction of the access off from Corkscrew Road, we discussed the increased height of the perimeter berms, as well as the reductions and the increased buffers, and through that we had a few questions, but some very good questions, and I think it was a great dialogue. And there was appreciation, at least from the residents who attended, for our willingness to have that meeting and share that information with them ahead of time before it received your desk. While I truly believe the process has been done to forge a better project here, there remains little to no meat left on the bones. And maybe more appropriate for this project, there's little juice left in the orange. At some point one reaches a threshold in maintaining a viable project. My board of directors, shareholders, and I believe we are reaching that threshold. I truly understand the process. You start here, through public input, Page 9 of 87 March 15, 2012 willingness, you move here. And it's all a balance. And I think that this process, our responsiveness has shown that balance. The reduction in mineable lakes by some 79 acres is forfeiting over 15 million tons of aggregate. That's over tens of millions of dollars that are being left on the table, but that's not just for Alico. There's also other revenues that are derived from that for the county, for the state, for the federal government but more importantly, for the public, won't have access to that rock that may be needed sometime in the future. The conditions before you are considered extremely restrictive, probably more conditions and more restrictive than any other application that has come before you, particularly a mining application. Although I don't know Lee County's conditions in all of their mines, I would have a hard time betting that these conditions are even less restrictive than anything they have in Lee County. I think they're more restrictive. And while we are, as a company, fully willing to adhere and comply with these restrictions, there are ramifications with that, and it's increased operating cost and risk that we are placing on ourselves by accepting those conditions. What that does is create an unlevel playing field. Other mines, whether Lee County or Collier County -- JUDGE STARNES: I hesitate to do this, but I raise a point of objection. CHAIRMAN STRAIN: Would you mind coming up and stating your objection for the mike. Excuse me, Don. JUDGE STARNES: My name is Hugh Starnes, and I have been an opponent to the application. And my understanding was the purpose of this hearing primarily was -- in the first instance, was for the applicant to present additional evidence on sound, and then they said at the last hearing, and they've added, visual. And he is presenting a final argument and giving the reasons why you should take final action. I think the appropriate procedure is, if they have additional evidence, put it on. And then either as president of Alico he can come up or their attorney can come up and sum up for the entire procedure what he's saying is obviously applicable to that. But the purpose of this hearing is first to present the evidence, and that has to come in before somebody sums up what you should do on the entire project. CHAIRMAN STRAIN: Thank you, sir. JUDGE STARNES: And that's my point of order. CHAIRMAN STRAIN: Objection is noted for the record. I'm going to allow Don to continue as he was. I see this more as a reflection as to an explanation where they stand on the submission that they have remade to provide less intensity on the project. We always seek less intensity. We are a very fluid body in regards to how we want things to happen, and I applaud the fact that we can effect change as we go through the process. So at this point I'm going to allow the testimony to continue. So go ahead. MR. SC14ROTENBOER: Thank you, Chairman Strain. I look at it as an introduction to where we're going to get here in a minute. But as I said, it really sets an unlevel playing field as far as competition but something we're willing to take on. Some of you certainly may be taken back by my remarks of capitalism and entrepreneurship. Frankly, I'm sure there's many in the room who just really don't care. But the reality is, it's business and it's economic development. By no means -- absolutely, yes, Alico stands to benefit from this project, as it has made a living from the land that it has owned for over hundreds of years. This is no different. However, not only will Alico benefit, but still will the nation, the region, and the county. At our corporate tax rate of 38 percent, all of our ordinary income, 38 percent of it, goes to the federal government. There's also going to be over 50 percent, over 50 -- more than 50 full -time jobs created by that in addition to increased ad valorem taxes to the county as well as transportation fees. But the greatest person or persons that benefit from this is the public. Through the generation of locally processed aggregate that does not have to be shipped into our region, through increased competition with other mines, we're able to keep the cost of building materials and road construction materials down for the public. Lee County's position that they have permitted enough mine supply for the region's aggregate for the next 30 years is simply misleading. Included in that projection are all mineable products that come out; fill, sand, and Page 10 of 87 March 15, 2012 aggregate. It's just not aggregate. It also doesn't demonstrate that after 2026 there's only one mine operating; that's monopoly. And we can only anticipate what will happen to the price of rock and the supply of rock if this region is controlled by one mine operator. Alico has always had an evolving long -term vision for this property. Alico and its predecessing founding company, Atlantic Land Improvement Company, for which its acronym comes from, has been in control of this property for over a hundred years. The first 55 years this property was in cattle grazing, and the last 45 years has been a citrus grove. As I mentioned previously, Alico has always made a living off the land that it owns. It's also been considered an excellent land steward. It supports the environmental and the conservations of land. This has been demonstrated by the donations of thousands of acres to the state, as well as donations of CREW land in its initial setting up of the CREW. We are also a very active participant in the Florida Panther Protection program right here in Collier County. While citrus is a viable business venture today, primarily due to near all -time high in juice prices, there's no guarantee that this grove will always remain a citrus grove regardless of what happens with this mining application. Increased foreign competition from Portugal, Venezuela, and others that we don't even realize today, diseases such as cankering and greening, although there is a pretty good handle on cankering today, there is no remedy for greening, and it is a constant battle for all citrus growers to be able to keep those from coming into the property. Climate itself is a risk. One freeze can wipe out an entire crop for a year. And water, the water to maintain our crops, some of the very groups in this room today that oppose this mine are fighting us as well for the water that we need to maintain our agricultural supply. You can't have it both ways. The reality long term is that these challenges and impediments to the citrus industry behooves Alico to look at other land uses other than what is there today. Just like the mining application before you today, it's an evaluation of its land in trying to determine the highest and best use. So I ask you today in your evaluation of this application to separate emotion from fact. And the facts are, No. 1, this property is in Collier County, not Lee; therefore, you're required to evaluate this project based on Collier County's Growth Management Plan and land development codes, not Lee County's. Number 2, your staff has determined, utilizing the very same Collier County Growth Management Plan as well as Land Development Code, that this application meets all of its requirements. Number 3, the Environmental Advisory Council supported unanimously the recommendation of approval for this application. Number 4, the CREW board was requested numerous times to oppose this project, but they decided not to. Number 5, Florida Department of Environmental Protection, in collaboration with the South Florida Water Management District, issued an environmental resource permit for this project. Through that, it was fully and scientifically evaluated, the hydrology and the surface water management for this particular mine. Through that -- there is a statement in there that through this project there is a net benefit to the water table because of the reduction in irrigation versus that being utilized for the mine. The Army Corps of Engineers performed an on -site evaluation and determined that there are no impacts to U.S. bodies of waters, including wetlands. We are currently, as we've indicated, working extremely closely with the Fish and Wildlife Service on a technical review for any impacts to the Florida panther; thus far have concluded that no panthers have ever denned on this property. Citrus groves provide poor to marginal quality habitat for panthers, and protection of such a small and isolated area would not be in the long -term benefit of the Florida panther. Fact No. 8, the property is zoned agricultural and, as such, mining is an allowable use. Number 9, through the various testimony, in addition to the testimony that you will hear today in today's presentation, we have demonstrated that the proposed mine is compatible to the surrounding area and poses no detrimental impact. Again, in concluding my remarks, I'd like to thank you again for your time and patience. And unless there's any questions that the commissioners have of me at this time, I'll introduce our first speaker. CHAIRMAN STRAIN: Okay. Thank you. Appreciate the summary. MR. SCHROTENBOER: Certainly. Page 11 of 87 March 15, 2012 Our first speaker is Gary Siebein, who will be speaking to you on the environmental acoustic evaluation. Thank you very much. MR. SIEBEIN: Good morning. Do I have to do something to turn this on? Good morning, hello. MR. BELLOWS: Just speak up. MR. SIEBEIN: Good morning, Mr. Chairman, Commissioners, ladies and gentlemen. My name is Gary Siebein. I'm senior principal with Siebein Associates, Inc., a specialty environmental and architectural acoustic consultant firm located in Gainesville, Florida, since 1981. We've worked on over 1,400 building and environmental acoustics projects in Florida, across the United States, and around the world. I'm also a professor in the school of architecture at the University of Florida where I direct a graduate program for people to get masters and doctoral degrees in building and environmental acoustics. I've written several books, book chapters, and over 150 technical papers and presentations on building and environmental acoustics topics. Our firm conducted an environmental acoustic assessment of the Lost Grove Mine project. General conclusions of the study are that the assessment is based on acoustic measurements taken at distances much closer than the 500 -foot minimum setback proposed for the Lost Grove Mine so we could get accurate acoustical signatures of each mining operation to use in our computer models. And with the berms and setback conditions placed on the mine operations, the noise levels from the Lost Grove Mine will be significantly and substantially less than the day and nighttime noise levels permitted by the Collier County noise ordinance for residential properties, which are the most restrictive in the ordinance. The performance standards and assumptions used in the study include four items: Establishing a 500 -foot setback for mining activities from the external property lines, establishment of a 12 -foot vegetated berm adjacent to the property line in areas where excavation will be taking place, establishment of a 25- foot -tall overburden berm between the excavation trench and dragline operations and the property line of any parcel under separate ownership, and establishment of a 60- foot -tall mobile aggregate materials berm between field crushing operations and the excavation trench and dragline operations. The method used in the study included taking acoustical measurements of nine specific mining operations at three different mines in Lee County to use as sound source data in a computer model, constructing a computer model to evaluate the buffers required to reach compatibility with surrounding areas defined by meeting the sound level limits of the Collier County noise ordinance at the property boundaries, and providing acoustical design recommendations for buffer distances and heights of berms to reduce sound levels to the Collier County noise ordinance sound level limits for residential receivers. The next sequence of slides summarized the acoustical measurements made for each of the mining operations at one of the mines. Similar illustrations of measurements made at other mines and the actual data recorded are included in appendices in the written report. The sketches show the name of the mining operation measured, an aerial photograph of the mine where the measurements were made with the distances from each piece of equipment to the measurements location, and the associated range of A- weighted sound levels measured. C- weighted octave band and one -third octave band data were also taken for each mining operation during the study. Please note that a specialty consultant will address issues related to blasting, as that is not within the areas of expertise of our firm. So the first slide shows drilling where we go out at four sides that we have access to at fixed distances to measure the sound levels for the operation. The next is a diesel- driven pump. In this the pump sits right next to a large body of water so we can only get to two sides of it. The large electric dragline, which I'll come back to in a couple of minutes; the dragline also sits by a body of water and with large piles of mine material adjacent to it, so access is limited to usually one or two sides. The mobile rock crusher, front -end loader, and conveyer belt where the mine material is taken and shipped to the central operations plant. This sequence of slides shows an example of how we derived the maximum sound pressure levels used in the computer models for each piece of mining equipment. Multiple individual measurements were made of each piece of equipment as it went through its normal operations. Page 12 of 87 March 15, 2012 This example was for a large electric dragline, which is the piece of equipment that will be located closest to the setback area. The graph shows sound pressure level on the vertical axis and time on the horizontal axis of the graph. So in this graph we look at a couple of minutes; the dragline lifts a load of material from the water, dumps the load in the aggregate pile, turns, and enters the water again, and it's 75 feet. This is in the, kind of, high 60s to the mid to -- mid 70 decibel range. It lifts, spins around, dumps the load, turns back, splashes in the water again, and we see a similar range of data. It lifts, spins, dumps the load, turns back, splashes in the water again. Kind of turns away from where the sound meter is, so the level decreases just a little bit. Lifts, spins around, dumps the load, turns back, splashes in the water. Little bit further distances. We have multiple distances also to compare. It runs through basically the same operation. Then the dragline moves to the next location. The blue box highlights the maximum sound level reached for all of the measurements made for the dragline. The octave band spectrum reached at this point was used as the data input into the computer model for the dragline. So we're not taking an average over this whole time that the dragline is operating. We're taking the instantaneous, highest sound level that's used for projection of what is ultimately a truly worst -case scenario. COMMISSIONER BROUGHAM: May I ask you a question at this point? MR. SIEBEIN: Yes. COMMISSIONER BROUGHAM: It may be inappropriate. But the dragline that you were obtaining these measurements from, is that the identical model that will be used at Lost Grove? MR. SIEBEIN: We measured several draglines in this, and so that data are included in the appendices, and they're all within a couple of dB. There's also a website that the U.S. -- I think it's the Federal Highway Administration has for sound levels of various heavy equipment that are used in kind of roadway, heavy construction for bridges and so on. And the data for the ones that we measured and that are in the highway department database are within a dB or two of each other. This one was a rather large one. And when we looked at all of ours, we took the highest level. COMMISSIONER BROUGHAM: Okay, thank you. MR. SIEBEIN: So then it goes through the same process. So as we go through this process, we went through a similar process for all of the nine mining operations that we measured to make sure that we were using the maximum sound level for each mining operation so that we're really looking at kind of a worst -case scenario. So we'll continue with other mining operations. The stationary rock crushers with the conveyor systems that bring the aggregate material to them; second rock crusher at this mine with conveyor systems coming in and out; the loading of materials from the stockpiles, loaders and dump trucks coming in and out and the operations associated with that; the weigh station as trucks come and the material is adjusted slightly before they leave the site; and then the ingress and egress of trucks after they leave the weigh station. We constructed computer models of three components of the mine: The central plant operations which stay fixed in the center of the property; the dragline and mobile rock crushers that operate in movable locations starting at the center moving towards the perimeter, the extents of the mined area; and then loading and truck operations using CadnaA software. This is a special exterior environmental acoustic modeling program used in many countries around the world for regulatory purposes. The program propagates sound from one or more sources, and it counts for topography, distance, vegetation, and so on, and botched noise level contours in accordance with international standards. The results of the computer model studies were compared to the sound level limits contained in the Collier County Noise Ordinance. The Collier County Noise Ordinance requires sound levels to be less than 60 dBA and 72 dBC at residential properties during daytime hours and 55 dBA and 67 dBC at residential properties during nighttime hours. This slide shows A- weighted sound level contours propagated from central operations activities, including the stationary rock crushers, conveyors, weigh station, ingress and egress to the site modeled to the site boundaries. These activities were modeled without the effect of the 25- foot -tall overburden berm and the stockpiles of mine materials that are usually present in the central operations areas of the mines, which will further reduce the calculated sound levels. Page 13 of 87 March 15, 2012 Sound levels on the east, south, and west sides of the proposed mine are all below 48 dBA which is significantly less than the daytime and nighttime sound level limits in the noise ordinance, and it's in the vicinity of typical ambient sound levels in the CREW area, which is current day /night average sound levels of 42 to 52 dBA, and of residential properties to the east, south, and west of the site which have current average sound levels at 40 to 48 dBA. This slide shows the C- weighted sound level contours for the same activities modeled across the site boundaries. Sound levels are less than 57 dBC on the west, south, and east sides of the property, which is less than both the daytime and nighttime sound level limits contained in the noise ordinance. COMMISSIONER MIDNEY: Excuse me. Could you go back to the previous slides. MR. SIEBEIN: Yes. COMMISSIONER MIDNEY: It looks as though there's, like, a wave pattern, like, between. Why is there areas of gray and then green and then gray and then green and gray again? MR. SIEBEIN: Yeah. That's where -- the gray area is actually shown as vegetation in the CREW area. And so I think when, you know, this -- when it's on the -- when it's on the computer screen the model was at, you could seem them a little better. But when it's printed, the vegetation shows up, I guess, takes precedence over it as it's printed out. And so, you know, if we look at here, the edge of the red, this is actually 55 dBA. So here's 50, and this green is -- sorry, this is C- weighted, so this is in the 45 to 50 dBA range right in this area. Out here, this is in the 40 dBA range. The actual contour is, you know, kind of in -- right along the edge of the roadway here coming through the site. COMMISSIONER MIDNEY: It's still kind of confusing because it looks like there's some gray areas that are quite close to it, and then there's gray areas that are far away. Are they all the same sound level? MR. SIEBEIN: Gray areas? The areas that are -- the areas that are hatched -- COMMISSIONER MIDNEY: Yes. MR. SIEBEfN: -- are not the gray, okay. I mean, those -- are you talking about up here? COMMISSIONER MIDNEY: The hatched area, yeah, all the hatched areas, yeah. MR. SIEBEIN: Yeah. The hatched areas are where -- I mean, those are vegetation, actually. And I mean, unfortunately, these contours are kind of obscured a little bit as they come through. So what happens is that here, as the sound moves at the -- up to the berms, the colors change rather dramatically because that's where the sound level drops by 10 to 15 dB as it interacts with the 12 -foot perimeter berm along the property lines. So the same thing happens on these sides as well. So the sound level limit there is actually 72 dBC during daytime hours, which is most of the time that the mine is in operation. And so where you're down at 40 and 50, you know, we're way below that and in the vicinity of the ambient sounds that are there at this point. CHAIRMAN STRAIN: Is that it, Paul? COMMISSIONER MIDNEY: Yes. CHAIRMAN STRAIN: Brad, did you have something? COMMISSIONER SCHIFFER: No. I was just going to see if I could help Paul a little bit. Paul, the gray is not sound. The gray is the location of vegetation. MR. SIEBEIN: Yeah, the hatched area. CHAIRMAN STRAIN: Could you go back to that slide, though. I have a question. MR. SIEBEIN: Yeah. CHAIRMAN STRAIN: You referenced, and I was going to ask you, how the red went to gray on the west side of this. So, quickly -- and you seemed to solve that by saying that's the effect of the 12 -foot berm. MR. SIEBEIN: Yes. CHAIRMAN STRAIN: What is the effect of the 25 -foot berm? Is it deflective? MR. SIEBEIN: We'll see that on the next slides. A 25 -foot berm is actually not in this model. CHAIRMAN STRAIN: Okay. MR. SIEBEIN: And we'll see that as we get to the next slide. But it's similar to this except the magnitude of sound reduction is much bigger. CHAIRMAN STRAIN: The 60's going to be shown, too? We have a 60 -foot berm coming into play as well. Page 14 of 87 March 15, 2012 MR. SIEBEIN: Yes, correct. That's on the next slide, correct. CHAIRMAN STRAIN: Thank you. MR. SIEBEIN: So this slide shows a section sketch at the bottom of the proposed performance standards for the mine which were used in the models. Beginning on the left side of the sketch, you have the property line, the 12- foot -high berm, you've got the 500 -foot setback that goes from the property line to the mine side of the 25 -foot berm, which is the overburden that is piled up. The dragline operates in a windrow between this 25- foot -high berm and this 60- foot -high pile of mined material. And then the mobile rock crusher is located -- mobile rock crusher, conveyors, loaders, and so on are actually located between the 60- foot -tall pile of mine material. So what we're looking at now -- because the dragline is not a stationary piece of equipment, the dragline will move across the site. So it will start and gradually move as it gets from the central operations area to the perimeter of the site. And so this is a model that shows the section is across the bottom that we just saw, the 12- foot -high berm, the 25- foot -tall been, the 60 -foot berm, the location of the dragline between the two, and the rock crusher. So here is the dragline, here is the rock crusher, the pump, the loaders and so on. So this is a section that occurs for a very short period of time as the dragline and the mobile rock crusher reach the point that is closest to the setback. So the sound levels from these activities, when they're at the closest point, are less than 53 dBA. Once the equipment moves farther from the property line, the sound levels for these operations will decrease to even lower levels. So, I mean, this is the point where it is at what we would call the design condition. It's important to realize that these sound levels only occur for a very short period of time while the dragline is at its closest point to the setback. Once it reaches this point, the dragline returns to the beginning of the tract so it can start a new row of dredging. It returns to the perimeter area some weeks later. So the scenario in this model would move around the perimeter of the mine over time and would exist at these levels for only those times when the dragline is at the closest point to the setback. It would never return, in fact, to the same location during the operation of the mine, because that material has already been removed. This slide shows the C- weighted sound level contours for the same operations at the same location. The sound levels are less than 57 dBC, which is less than the daytime and nighttime sound level limits contained in the noise ordinance. This slide shows A- weighted sound level contours on the left and C- weighted sound level contours on the right derived from a simulation of front -end loader and dump truck operations that was conducted on the Lost Grove site when the loader and trucks are about 500 feet from the property line. The sound levels are less than 52 dBA and 62 dBC, which are both less than the daytime and nighttime sound level limits in the noise ordinance. And in this case the only intervening structure is the 12 -foot perimeter berm. So in conclusion, based on a 500 -foot setback from property lines for all excavation activity and the proposed conditions and operational site plan, typical sound levels from all mining operations measured will be significantly less than the residential daytime and nighttime sound level limits of the Collier County noise ordinance. The operational parameters to be established for the Lost Grove Mine excavation should include establishing a 500 -foot setback from external property lines, establishment of a 12 -foot vegetated berm adjacent to the property line in areas where excavation will occur, establishment of a 25- foot -tall overburden berm between the excavation trench and dragline operations and the property line of any parcel under separate ownership, and establishment of a 60- foot -tall mobile aggregate materials berm between the field crushing operations and the excavation dragline operations. Thank you. CHAIRMAN STRAIN: Okay. Phil? COMMISSIONER BROUGHAM: I just --I want to be sure that I understand this modeling and its results and the positioning of those results onto the Lost Grove Mine proposed site. I mean, at several different times you said that these measurements taken at the Lost Grove site, et cetera, et cetera. Now, this -- or perhaps I misunderstood. You did measurements at different mining operations in Lee County or in other locations, right -- Page 15 of 87 March 15, 2012 MR. SIEBEIN: Yes. COMMISSIONER BROUGHAM: -- of the equipment? Help me understand how those measurements were then transformed or put in place in a computer model representing the Lost Grove site. That's where I'm having a little difficulty with your process -- MR. SIEBEIN: Oh, okay, sure. COMMISSIONER BROUGHAM: -- if you will. MR. SIEBEIN: Sure. The process was to build a three - dimensional computer model of the Lost Grove Mine site, okay. So we construct this with the property boundaries on it. COMMISSIONER BROUGHAM: Now, you say three - dimensional. That would include the current site, I mean the orange grove site, the -- MR. SIEBEIN: We took out the trees. COMMISSIONER BROUGHAM: You took out the trees. MR. SIEBEIN: Yes. Okay. So what we used this, the basis for the model, we can kind of see it here. This is the proposed mining plan. So you can see the proposed lakes that kind of outline here in blue. COMMISSIONER BROUGHAM: Right. MR. SIEBEIN: The area for central mine operations with the locations of the rock crushers, the weigh station, the ingress to the north off the site. This is another mining lake, and another one. And so we basically constructed or took the mining plant and made a computer model on the Lost Grove site of these activities. So we did several, because some of the activities are fixed in place, and so that's what this model represents. So this is all the, kind of, central operations area. You build a weigh station; it stays there for the duration of the mine. You build the entry road; it stays there. We build the stationary rock crushers; they stay there. So this model is then -- when we measured the sound levels of each piece of equipment at several of these mines, we used that data so we have a sound level at a given distance, and we convert that mathematically to what's called the sound power level, which is the ability of the sound source to produce acoustic energy. The sound power level is pinpointed at the location of this operation. So here we -- in the center we have the stationary rock crushers and the conveyor systems and so on. We input the surrounding bodies of what would be bodies of water, the grassy areas, the trees, you know, so we have -- COMMISSIONER BROUGHAM: You took out the trees. MR. SIEBEIN: Well, we took out the orange groves. We left the trees that are in -- you know, you've got both on the sites and conservation areas and then heavily wooded areas that are just off the site. COMMISSIONER BROUGHAM: I think I'm getting there. But at the sites that you took your measurements the other mining sites -- MR. SIEBEIN: Right. COMMISSIONER BROUGHAM: -- okay, I'm to understand that the topography of those other mining sites was equivalent to the topography that you modeled for the Lost Grove sites on the orange trees. And I'm thinking that Mine A that you took measurements at, it might have different contours of land, it might have different characteristics of aggregate or non - aggregate substance. MR. SIEBEIN: Okay. Well, so here we are at the large electric dragline. So we go out to the dragline; we're 75 feet away. The only topography that's between us and the dragline is a flat piece of -- you know, I don't know the right name. I'm an acoustic guy, but not a mine guy. But anyway -- COMMISSIONER BROUGHAM: A piece of flat ground. MR. SIEBEIN: It's a piece of flat ground with no grass and, you know, it's kind of substrate exposed. And so when we're here -- and this is why we took these measurements at very close distances, because we have minimum effects from distance and interfering areas. So we weren't -- in all cases we're as close as we could possibly get to the equipment for safety purposes so we don't get run over by a dump truck backing up and so on, and also so that we can gather the acoustic signature of the dragline, for example, or the loaders without those being influenced by other operations that are around to the sides and so on. COMMISSIONER BROUGHAM: Okay. I think I'm there. In other words, the topography makes no difference because you measure the noise level or -- MR. SIEBEIN: Yeah. Page 16 of 87 March 15, 2012 COMMISSIONER BROUGHAM: -- sound levels of the operation of these pieces of equipment clear of any obstacles, then transpose those into your model for the proposed site? MR. SIEBEIN: That's correct. COMMISSIONER BROUGHAM: Okay. MR. SIEBEIN: You let the computer account for the berms and the topography. COMMISSIONER BROUGHAM: Okay. I'm there. MR. SIEBEIN: And the sound source data we got as cleanly as possible. I mean, ideally, you would take a piece of equipment and put it in an acoustical test chamber. But a dragline doesn't fit in one. COMMISSIONER BROUGHAM: I mean, I can envision if you wanted to fake the results, you could, theoretically, have taken that measurement. There's a 25 -foot berm between where you're measuring and that dragline. MR. SIEBEIN: We didn't do that. COMMISSIONER BROUGHAM: I'm not insinuating. MR. SIEBEIN: My firm has professional liability insurance. I mean, the last thing in the world we want to do is kind of have someone, you know, kind of get permitted under false pretenses. COMMISSIONER BROUGHAM: I just want to have a clear understanding of how this process evolved, and sorry that I insinuated something. MR. SIEBEIN: You know, if you look at the sketches, if you look at all of them, we're trying to get 50 or 75 or 100 feet away, as close as we can reasonably safely get to each of these operations, and we've just got flat open ground between us and the mining operation. COMMISSIONER BROUGHAM: That helps. Thank you very much for your explanation. CHAIRMAN STRAIN: Mr. Schiffer? COMMISSIONER SCHIFFER: The acoustics where you show it, you're the closest to the 25 -foot berm between the 60 where the dragline's operating? MR. SIEBEIN: Yes. COMMISSIONER SCHIFFER: As we move away from that property line -- and one of the conditions we have here is that we start closest and move away. The sounds on the other side of that 25 -foot berm, will it lessen or -- MR. SIEBEIN: Yes. COMMISSIONER SCHIFFER: -- will the berm become less important the further away you get? MR. SIEBEIN: As you get -- well, you have two things. As you get farther and farther away, every time you double distance, the sound level of the source decreases by 6 decibels, okay. So as you get farther away, you're decreasing the level of the source. And the 25 -foot berm that is there, as it -- as you back away, although it's -- I mean, a 25 -foot berm and a 60 -foot berm are huge. We do a lot of work, you know, as you go down I -75 here and the Florida turnpike by Miami, a lot of development projects. We work with the developers on building sound walls to shield from highway noise. You know, like Tuscany Reserve down the road here has the kind of funny thing along 1 -75 WCI built. When you get up into the 20- and 30 -foot range -- I mean, because most highway noise barriers are 8, 12, 16 feet -- this is a huge amount of insertion loss, which is the reduction of sound as it goes across the berm. So as you back up you lose a little bit of insertion loss, the sound reduction at the berm, but you're making that up because the sound level of the source is actually decreasing as you get further back. So it's a net reduction at the end of the day. COMMISSIONER SCHIFFER: So in your opinion the further away you go, the less the sound would be on the other side of the 25 -foot berm? MR. SIEBEIN: Correct. COMMISSIONER SCHIFFER: Okay. And then the other thing is when you look at your sound studies, the sound seems to be constant within -- like right there. In other words, it is -- during the operation of the day, it is always going to be between that 70 and 80 dBA constantly. MR. SIEBEIN: Well, these measurements are taken at one - second averages. Your noise ordinance actually asks for one minute. When you take sound level readings in shorter time periods, you actually get somewhat higher levels than when you average over longer periods of time. So, again, there's another case where we're really trying to look at worst -case. But what this is saying is, so the dragline turns. When the exhaust, the kind of back end of the dragline, is Page 17 of 87 March 15, 2012 pointed towards, in this case, the microphone, it's louder, and then as it turns away to scoot material, it gets quieter. So, I mean, this variation of 10 decibels is actually a pretty large variation, you know, as you look at it. So in a way, yes, kind of, it turns towards you and you have this kind of "n r" of the motors that come out, and then it turns away and that falls off. COMMISSIONER SCHIFFER: Okay. But my point was that when they come in in the morning and they start work till they stop work, there's a constant low -- or sound wave within this range; is that right? MR. SIEBEIN: Well, for the dragline -- if you're talking about the dragline in particular, for the dragline in particular, this will operate for a limited period of time at the place where it's closest to the property line, which is what we're showing in the model, because there's only so much dirt that you can move there, and then it moves farther away. COMMISSIONER SCHIFFER: Then the sound would drop? MR. SIEBEIN: Then the sound drops, correct. COMMISSIONER SCHIFFER: All right, thanks. CHAIRMAN STRAIN: Okay. Anybody else at this time? Paul? COMMISSIONER MIDNEY: Is there, like, a formula about how many decibels you lose according to the height of your berm? MR. SIEBEIN: Yes. COMMISSIONER MIDNEY: Can you tell us? MR. SIEBEIN: Can I tell you? COMMISSIONER MIDNEY: Yes. MR. SIEBEIN: The algorithm in the computer model? COMMISSIONER MIDNEY: Well, if it's really complicated, no, but -- MR. SIEBEIN: Yeah, it's kind of complicated. COMMISSIONER MIDNEY: Oh, I'm sorry. MR. SIEBEIN: I mean, I could draw a sketch if there's a way to show it. But it's related to what's called the acoustical height of the berm or a Fresnel number, if you're familiar with optics. So if you had a source and receiver that are here, the effective height of the berm is equal or is related to, mathematically, the height that the top of the berm is above the straight line of sight between the source and receiver. So you construct it perpendicular up to the top. And so that kind of determines the -- basically it's the diffractive path of sound as it goes over. CHAIRMAN STRAIN: Anybody else have any questions at this time? I've got a couple. Could you go to the -- Page 28 of your slides. It's just a -- D, 65- foot -tall. Did you base it on 60 or 65 feet? MR. SIEBEIN: The math that we did was based on 60. CHAIRMAN STRAIN: Okay. So that 65 should be 60? MR. SIEBEIN: Yes. CHAIRMAN STRAIN: Okay. In your report and in your statements you said that your expertise is not in blasting, and I could understand that. You're a sound guy. MR. SIEBEIN: Yes. CHAIRMAN STRAIN: But the sounds from blasting should have been your expertise; should it not have? I mean, if you're measuring sound, wouldn't you understand the sound generated by a blast? MR. SIEBEIN: I think we have another consultant that's going to address that topic. CHAIRMAN STRAIN: So you have another acoustical consultant who's going to address the noise from a blast like -- similar to the way you have addressed it? MR. SIEBEIN: He will -- I mean, is that correct? MR. SCHROTENBOER: Yes. MR. SIEBEIN: We have another consultant who will address the issues related to the blasting activity. CHAIRMAN STRAIN: Okay. In some of your general maps that you've provided, I notice that you didn't do a bull's eye -- and I'm calling it that from laymen's terms. I'm sure you've got a better name for it -- for the southern lake, Lake No. 3, and that one happens to be the closest to residential, or did you, and can you show it to me? Because I didn't pick it up that way. MR. SIEBEIN: Well, if we look at these -- Page 18 of 87 March 15, 2012 CHAIRMAN STRAIN: Right. MR. SIEBEIN: -- okay, this is meant -- the activities -- well, two things. The southern lakes are here that you're talking about? CHAIRMAN STRAIN: There's one southern lake proposed; it's right there. And that one happens to be the one closest to CREW and the closest to where neighbors live. MR. SIEBEIN: Yes. So this shows the contours from the central operations that move across that area. So for the central operations, that is -- CHAIRMAN STRAIN: Not a point. MR. SIEBEIN: -- covered this way. CHAIRMAN STRAIN: Right, I understand. MR. SIEBEIN: Now, this -- which the axis is shown going up and down on the sheet paper, but this is actually a movable scenario. So as you excavate this mine, you know, if here's your 500 -foot setback, that bull's eye, so to speak, will move around the perimeter of this just the way it will move along the perimeter here and it will move along the perimeter here. So, in other words, that's looked at as a generic situation wherever the dragline and the mobile rock crushers are at a given moment in time. That model applies to them. And, I mean, we just didn't know another way of being able to take something that moves around the site and -- you know, so we could place that diagram and turn it -- CHAIRMAN STRAIN: But did you actually -- do you -- MR. SIEBEIN: Sideways. CHAIRMAN STRAIN: -- have a visual that we can see where that has been done? Only because that southern mine, if you look at the three locations, the southern mine is the most critical when it comes to adjoining neighbors and the CREW lands to the south. It's right there. MR. SIEBEIN: Yes. That is what this is showing, because the only thing that's in here is the dragline with the 500 -foot setback. CHAIRMAN STRAIN: Okay. So the bull's eye that's in the middle, it would move further south, is what you're saying? MR. SIEBEIN: This whole section would -- this whole drawing would -- CHAIRMAN STRAIN: Slide down. MR. SIEBEIN: -- move south, turn sideways, go up the angled side, move around the perimeter as the dragline moved around the exterior of the site. So I mean, other than having, like -- I mean, I guess we could have an animation of kind of showing the dragline as it moves across the lake and what these bubbles do. CHAIRMAN STRAIN: No. For my conception, trying to understand things, it would have been helpful to have a graphic showing a bull's eye overlaid on the mine that probably -- the mine location that is going to be more impactful than possibly some of the others. And that's the only thing I was trying to seek is that kind of relationship. MR. SIEBEIN: Well, what we were trying to do here was say that the -- for any of the situations that would be considered worst -case, i.e., where this is going to be at the 500 -foot setback, this is the model that would apply, and it would kind of wrap around the perimeter of each of those mined areas. CHAIRMAN STRAIN: No. I understand the way you did it. I was just -- visual would have been easier to understand for me. See if I have any questions that you haven't answered. In your report on page -- well, it's Appendix B2, and it's just -- I'll give you a generalization. You have a series of, oh, Location R1 -- and I'm trying to look for a title on this. It's -- I don't know what this particular one -- what piece of equipment it was trying to show. But a lot of them portray significant spikes above the average curve, and this one is -- goes -- it's extreme. It goes from an average, it looks, around 50 up to 100. How do you -- what do you think those spikes are from? I mean, if you did this in the field, what would cause something like that? MR. SIEBEIN: These -- Appendix B contains data that was recorded by sound level meters that were placed at these locations: RI, R2, R3. R1 was actually the CREW area. R2 and R3 are at the northern and southern edges of the western Lost Grove Mine property. So these are measuring -- there's no mining activities here now. These are measuring current ambient sound levels on these particular dates. Page 19 of 87 March 15, 2012 CHAIRMAN STRAIN: So this wasn't measuring mine activity. MR. SIEBEIN: No. CHAIRMAN STRAIN: This is just measuring, say, something that was on the road or -- MR. SIEBEIN: Ambient sound, yes. CHAIRMAN STRAIN: Okay. MR. SIEBEIN: It's either -- it's probably either a plane that's flying by or possibly -- at the time we had this meter out, they had done some controlled burns in the CREW area, and maybe there, I don't know, some vehicles that went nearby or something. I mean, you know, these were unattended measurements, but these are of existing ambient sound levels in those areas. There's not -- they have -- I mean, there's no mining operations at all that's involved with this. CHAIRMAN STRAIN: Well, since you have your paper, or your appendix out, on C2, I notice you provide measurement location and sound levels for a series of different kinds of activities, everything from birds and wind, to -- which I think was the most intense -- two cars passing a dump truck. So did you actually measure that, or is that from a book or something? MR. SIEBEIN: No, no, no. These are -- so we went to these locations, which are shown on a map -- CHAIRMAN STRAIN: Right. MR. SIEBEIN: -- which are around the periphery of the Lost Grove Mine site. These are actual measurements of sounds that are occurring at this time. So, you know, as you're going -- I mean, there's a lot of cars and heavy trucks that travel on Corkscrew Road. And if we -- CHAIRMAN STRAIN: I think I understand what you're saying. What that means is, you -- during this time you're out there, when two cars pass a dump truck, the accumulated sound was, in this case, 79 dBA, the height. MR. SIEBEIN: Yeah. Look on Page E2. CHAIRMAN STRAIN: E as in elephant? MR. SIEBEIN: Yes, E as in Edward. CHAIRMAN STRAIN: That's easier than elephant. MR. SIEBEIN: Okay. E2. CHAIRMAN STRAIN: Terri's got to spell all this each time. MR. SIEBEIN: E2. There is a site map where these measurement locations are keyed. CHAIRMAN STRAIN: Yes, I saw that. MR. SIEBEIN: Okay. So if you look at -- this -- where are we here? The -- CHAIRMAN STRAIN: M3. MR. SIEBEIN: Yeah. So M3 is kind of at the bend in Corkscrew Road. And, you know, there's a little pull -off there where it's kind of like a little dirt area where there's some mailboxes and stuff. I mean, so, you know, as a couple of cars and trucks pull by, I mean, this is their sound level. As they get father away, it's a little quieter. As they pass by it's a little louder. But these are all existing sounds. Appendix C and B are existing sound levels that are measured in this vicinity. CHAIRMAN STRAIN: Okay. Those might be most of my questions. Hold on just a second. You said, by the way, an exhaust on the dragline, but it's an electric dragline. MR. SIEBEIN: It's got some kind of big fans in back. I don't know what -- I'm not sure how they -- big fans in the back of it that are part of the noise source. CHAIRMAN STRAIN: I just wanted to make sure we're still talking electric and not anything else. MR. SIEBEIN: Yes. CHAIRMAN STRAIN: You also mentioned that for every doubling of the distance there'd be a 6 dBA drop in sound? MR. SIEBEIN: Yeah, that's in what's called a free field, an area without obstructions. It's a rule of thumb. I mean, you know, calculations show sometimes a little more, sometimes a little less. It's kind of a rule of thumb that's generally notched. CHAIRMAN STRAIN: So if you were 2,000 feet or 4,000 feet away and this whole study was done at 500 feet, you would just use that multiplier by 500, distance -- is it by the -- say it goes from 500 to 1,000 and it drops 6 dB. It goes from 1,000 to 15 -, is that another 6 or is it only 3? MR. SIEBEIN: No, it's another -- from 500 to -- I'm sorry? Page 20 of 87 March 15, 2012 CHAIRMAN STRAIN: No. Say you go from 500 to 1,000, it drops 6 because you doubled the distance. But if you go from 1,000 to 1,500, you only half the original distance of 1,000. So it's 3 or 6? MR. SIEBEIN: Yeah. It's not 6. CHAIRMAN STRAIN: So it would be 3? MR. SIEBEIN: Yeah. Well, I mean, approximately. CHAIRMAN STRAIN: Well, that's half of 1,000, so that means -- MR. SIEBEIN: Well, sounds are logarithms, so it actually decreases 10 times of the log of the distance squared. So, you know, it's not exactly half, but it's close. CHAIRMAN STRAIN: Okay. Just curious on that. Anybody else have any questions? COMMISSIONER EBERT: Yes, I do. CHAIRMAN STRAIN: Go ahead, Diane. COMMISSIONER EBERT: Acoustics are very important. It would be nice if you could put the acoustics completely around the mine and just only operate it where it's all enclosed. Just with normal hearing, you put people in an acoustical place to test their hearing, it's a lot better than if they're out in the regular open air to do things. The noise travels completely different than in an, you know, acoustical setting. You put me in a hearing test, I can hear fine in there. You take me outside of that, and any background noise, that changes. So when you're doing -- when you're doing all -- you're just doing the acoustical things, your measurements and everything are just -- how do I want to say this? It's not quite the same as when you're a controlled area, I guess is what I'm saying. So if there are other activities going on around this at the same time, that still changes the level? MR. SIEBEIN: I'm not sure what you're asking. COMMISSIONER EBERT: Well, you -- different environmental things happening around there at the same time will still make these levels vary; is that correct? MR. SIEBEIN: Well, the levels from the mine activities -- this is done in isolation, so -- COMMISSIONER EBERT: Okay. MR. SIEBEIN: -- for example, at the location we were just talking about that is at the bend in Corkscrew Road -- COMMISSIONER EBERT: Corkscrew, sure. MR. SIEBEIN: So the car comes by and it's -- two cars and a truck comes by and it's between 50 and 79 decibels from that. There's no mining operations now. The sounds from the mining operations are modeled in that area to be in the 40s. So the net result is is that, you know, the 40- something of the mining activity there and the 50 to 79 of the truck pass, you will hear the truck pass plainly, and you won't hear the mining activities. COMMISSIONER EBERT: So you will not hear the mining activities, is what you're saying. MR. SIEBEIN: Right. When you add sound levels, because decibels are a logarithmic quantity, you don't add them numerically the way we would other numbers. So, like, 50 and 50 is 100 the way we would normally think, but, acoustically, 50 and 50 is 53. So, I mean, you know, they don't add the way that regular numbers add because they're logarithmic quantities. COMMISSIONER EBERT: Okay, thank you. CHAIRMAN STRAIN: Okay. And I think, too, what you're kind of saying is that the loudest noise is what's going to be heard. And if you've got the 79- decibel issue with a 60 from the mine, the 79's going to be heard over the 60 from the mine? Is that -- MR. SIEBEIN: When it's of that magnitude, yes. CHAIRMAN STRAIN: Okay. Anybody else have any questions on this gentleman right now? (No response.) CHAIRMAN STRAIN: Okay, sir. Thank you very much. Appreciate it. And I think we're going to -- not think. We will take a break to 10:35. We'll come back at that point. (A brief recess was had.) Page 21 of 87 March 15, 2012 CHAIRMAN STRAIN: Okay. If everybody will please take their seats. We'd like to resume the meeting from the break. During the break a few people came up to me to ask about specific issues they were concerned about that didn't seem to be up for discussion today, and I reminded everybody we've had -- this is the fourth meeting, and we are going to stick to the issues at hand today. But one thing I just said to one gentleman, and he wasn't aware of it, so I thought I might make it available to the rest of you. We are a recommending body. We do not make the final decision. Our decision is to recommend to the Board of County Commissioners. This entire process and hearing is going to be repeated at the Board of County Commissioners. I mean, they won't probably take four days on it, but they will hear it in depth, and they will -- public speakers are always welcome at that board's meetings. So if you feel that something was missed that you want to get on record before a final judgment is made on this case, by all means you have that available to you at the Board of County Commissioners beyond what we will hear today and beyond what we've heard for the past three days. So I just wanted to sure everybody was aware of that. So with that, we'll move on. Alan, I guess you're next, huh? MR. REYNOLDS: Well, good morning. My name is Alan Reynolds. I'm the vice president of Stantec Consulting, formerly the CEO of WilsonMiller. I've been a practicing professional planner in Collier County for many, many years. COMMISSIONER EBERT: It's not on. CHAIRMAN STRAIN: We can't hear you. That speaker's been giving us trouble today for some reason. MR. REYNOLDS: How about this one? How's this one? How's this? CHAIRMAN STRAIN: That's better. Maybe during our lunch break we can get that worked on today. So thank you. MR. REYNOLDS: Okay. Again, my name is Alan Reynolds. I'm vice president of Stantec Consulting. I'm a professional planner. Been practicing in Collier County and other parts of the State of Florida for about 34 years. And I'm going to walk you through the visualizations that we have prepared. And we have a PowerPoint presentation. It was part of your package. But let's just kind of start again with the purpose of the visualizations, and the purpose is to provide you with a graphic representation of what a person would see at various locations around the Lost Grove Mine site, and these different locations represent different kinds of perspectives that you would have, depending on the conditions both on site and off site. The technique we use is we use a modeling program called Google SketchUp. We take an AutoCAD drawing, we put that into Google SketchUp, we create a three - dimensional model, and then with that three - dimensional model, we can select different viewpoints, different height elevations, and then you can see a representation of what's in the computer model. We then take -- after we have different viewpoints, we actually have someone go out to the site, they take a photograph from each viewpoint, and that photograph then can be composited with the computer visualization to give you as realistic a view as we can give you as to what you would actually see if you were standing at that location. So we have five different viewpoints that we're going to show you. In each of these visualization viewpoints, we go through a sequence of slides. What you're going to see first is where is the viewpoint located in relationship to the site. We show that both on the site concept map, and we show it on an aerial photo to kind of get you oriented with where we are. We then are going to show you an eye -level photograph taken from that viewpoint. We then will show you what the model shows you from that same perspective. We then put the two together so that you have a composite of the photo and the visualization. And then in the last slide we actually take you up a hundred feet above the ground so that you can see over the berm, over the perimeter vegetation. And it shows you what actually is in the model that is either seen or not seen from that viewpoint. So that's how this works. This just shows you the various parameters that were used for the elements within the plant in terms of the heights of trees, the spacing, the height of the perimeter berm, and this has been previously described. We also have modeled into it both the 25- foot -high stockpile berm and the 60- foot -high material berm. Page 22 of 87 March 15, 2012 Viewpoint 1 is a representation that is pretty standard along the west property line. As you know, because we have private property that abuts Lost Grove Mine, we had to pick a point where we had public access so we weren't trespassing on somebody's property. So we went to the end of Tina's Lane, which is where the arrow is shown. And that location then is pretty representative of the conditions all along the west property line. So here it is shown on an aerial photo. And, again, the visualizations were taken at two places from the property line, 75 feet and then 25 feet; and I'll show you the reason why we took two different visualizations from that viewpoint. In this case, and actually in all cases, we have modeled the location of the dragline to be as close to the perimeter of the property as it will get during the course of operations. So, for example, in this location the very first cut that will run from the north to the south along the western edge of Lake No. 1, we put the dragline directly across from the viewer at that first cut. And as we go through the visualizations, I can explain to you where the viewpoint and the dragline is. This is a photo that we're actually standing on the site approximately across from where that viewpoint is. And what I just -- the purpose of this photo is to just show you that in many cases along the western property line there is fairly significant existing vegetation that is offset. You can see the ditch here. The ditch is along the property line. So the reason for doing the composites with the photo and the visualization is to show that not only is the improvement of the berm going to have an impact on what you can see, but existing vegetation will also have some impact on what you can see in each visualization. And, actually, in that slide you can barely make out looking through the trees, the location of a home, which is, actually, the closest home in adjacency to the west property line. So here's the photo from Tina's Lane. We're about 75 feet from the property line. You can see it's actually a dirt road, and that's what the picture looks like. This is then the computer model, and it shows a 12- foot -high perimeter landscape berm, it shows the Type A buffer plantings, it shows the dragline, again, at its closest point to the property line, which is about 645 feet from the -- actually, in this case about -- yeah, 645 from the viewpoint. So that's the computer model. Now, we superimpose the photo and the visualization. And, obviously, in this location you can see that there's some existing vegetation that has some screening effect, but you also have the landscape berm that you can see in the background. When we showed these to Kay -- I'm going to give her credit -- she says, well, isn't it convenient that that tree happens to be right in front of the dragline. And I said, well, that was the viewpoint so, I guess, let's try a different approach. So we did a second one. We just moved the dragline 300 feet to the south. And it would take about three weeks for that dragline to move that distance using kind of normal operations. So there's the dragline 300 feet south. So it's a little bit further away because we moved it -- we've moved it that direction. And there you can see the composite with the photograph and computer model. So is it visible? Absolutely. It will be visible from certain points off site. Is it -- you know, you have to judge whether or not you think that that's offensive. But please understand that in the course of activities on the site, obviously, the dragline is going to be moving, so there will only be a limited period of time that it's going to be in any one location and, obviously, only one time where it will actually be at the closest proximity to the viewer. So now we take -- we just went up a hundred feet in the area. And this is the exact same computer model. And what we're really showing here is that, yes, all the activities in the mine are in that computer model. You can see the stockpile berm, you can see the cut, you can see the aggregate stockpile. The rock crusher is behind the 60 -foot aggregate stockpile and in no case, because of these two berms, will you ever be able to see the mobile rock crushers because of the way that the operations take place. But if you went a hundred feet in the air, you would certainly be able to see the dragline when it's at its closest point. So now we've just moved 50 feet closer to the property line, so now we're 25 feet away, which is the rear setback for the agricultural zoning in that location. So that's the same view. That tree that we saw before is now in the corner of the photo. Here's the 12 -foot berm with the plantings. There's the superimposition of the photo with the visualization. You probably notice that in the prior view, the top of the dragline was a little bit above the tree and now in this case, Page 23 of 87 March 15, 2012 as you move closer, obviously, the tree in perspective takes more prominence and, actually, the top of the tree is now higher than the dragline. So, again, as you move around the site you're going to get different perspectives like that taking place. COMMISSIONER BROUGHAM: Question, if I might. MR. REYNOLDS: Yes, sir. COMMISSIONER BROUGHAM: You mentioned that the dragline will move, obviously, starting at one point and moving as it does its operation. Does anyone have any estimate at a typical operation on a given day how far would that dragline traverse, let's say, north to south? MR. REYNOLDS: Approximately 25 feet in normal operations. COMMISSIONER BROUGHAM: Okay. MR. REYNOLDS: So, again, that prior view with the dragline was behind one of the planted trees. In this case we just -- again, we moved it 300 feet to the south just like happened in that prior sequence and, again, there's the visualization. So you can see, obviously, that the berm and the landscaping do a very effective job of screening out any visual penetration into the site with the exception of the top of the dragline. And, of course, the dragline moves up and down, and it rotates. So it's not a stationary object, but -- COMMISSIONER EBERT: I have a question. CHAIRMAN STRAIN: Go ahead. COMMISSIONER EBERT: Alan? MR. REYNOLDS: Yes. COMMISSIONER EBERT: You show this -- which the picture is beautiful. Those are the height trees you're going to put in there? MR. REYNOLDS: Yeah. The -- let's talk about both the trees and the hedges, okay. The trees that are modeled in this visualization are approximately 18 feet high. COMMISSIONER EBERT: Okay. MR. REYNOLDS: That represents about two years of growth if you start with a 14 -foot tree, which is generally what you would be starting with. So right at planting the tree would be approximately two feet shorter, but it would be roughly the same kind of canopy. And then, of course, over time it's going to grow and it's going to fill in. And five to ten years down the road you're going to get, you know, a much more solid canopy, if you will, of the perimeter trees. The hedges are approximately four feet tall. So, again, those represent, you know -- COMMISSIONER EBERT: Four feet tall. MR. REYNOLDS: Yes. COMMISSIONER EBERT: So at what picture height are you taking these now? I mean -- MR. REYNOLDS: These visualizations are all taken at eye level, and we're using 5 foot, 5 inches as an average eye level, okay, for the average person. Not Don Schrotenboer, but the rest of us folks. COMMISSIONER EBERT: Twice my size, yeah. It looks very nice. It looks like you've sodded the whole side of the -- do they plan on sodding all of this? MR. REYNOLDS: Yes. Well, it will have to be grassed, yes. It will have to be grassed, whether it's sod or grass seed. You know, it does have to be grassed and stabilized, and it's a four -to -one side slope. So it's a gentle berm, and it's a fairly high berm. I mean, when you talk about a 12- foot -high berm, the base width of that is almost a hundred feet from one toe of slope to the other. COMMISSIONER EBERT: Okay, thank you. MR. REYNOLDS: You're welcome. And, again, we just popped up to the bird's eye view, went up a hundred feet. So you can see, in fact, the -- what this does show is how the stockpile berms, particularly the aggregate berm, does a good job of screening the equipment. And way in the background, if you can see in the upper right -hand corner, is the operations of the center. So most of these views, you know, you have very little view when you get up to a hundred feet. Because the operation center is in the center of this site, there's very little ability to see that, and certainly no ability to see it when you're standing at the perimeter of the site. Page 24 of 87 March 15, 2012 And I'll just point out also over here at these power poles. I'm going to show you in a minute the photograph of the power line that runs across the north property line, because those power poles are over a hundred feet tall. And so they're also a good visual reference for sort of the impact that you see at various facilities on the site. So I think that viewpoint is really representative of the typical condition all the way along the edge of Lake 1, which is where you actually have the potential for the lake to be as close to the property line as it will get anyplace in the site. We now drop down to Viewpoint 2, and Viewpoint 2 is taken at the very south end of the property, looking to the north. Here's an aerial photograph that shows Viewpoint 2. This is -- here are the properties right here. I believe these are Mr. Starnes' properties. We stood on the edge of the right -of -way for the visualization. One of the adjustments that was made to the site plan that I think you probably picked up is that the edge of mining has now been moved up to this location, which is the southern edge of that grove, so this existing orange grove is no longer going to be part of the mining activity, and that has moved the lake about 1,200 feet to the north of the property line. Once again, we picked the closest point with the dragline to the viewpoint of the viewer. That viewpoint would be right on this first cut as it goes from west to east along the south edge of the lake. This is a photo just taken from the site, again, looking back to where we took the photograph for the visualization purposes. So you can see we're looking south into the property. And now we're standing on the edge of the right -of -way. This is a photo of what you can see. This is the computer model that shows the 12 -foot berm with the height of the dragline, again, at its first cut along the south edge of Lake No. 3. We've now composited the two together. So there's the -- again, you can see the dragline here. You can't see the berm because it is behind the existing vegetation in this location. That's not always going to be the case. Obviously, the vegetation varies a lot as you go along the street. So there may be places where you'd actually see the landscape berm rather than the existing vegetation. But then again, we pop up a hundred feet so that you can see where -- you know, where things are located if you were up at that level. And for the purposes of all these visualizations, we took out the orange trees, because even though we -- the intent is probably to keep that grove for some period of time, we can't be committed to that indefinitely, so we didn't want the orange trees to become a subject of a condition that says you can't take them out as part of the visualization. And, once again, we did two different positions of the dragline here, because in this case, when you do the composite, the dragline is actually behind that palmetto clump so you can't see it at all. But, obviously, we showed you the other ones, so, you know, if the dragline was in a different location, you can see what that would look like. And, again, the viewpoint, you can see now the dragline, we've moved it about 600 feet to the east of where it was in the prior view. And, again, you can see the construction of the overburden stockpile and the aggregate stockpile, and way off in the distance is the operations center. We now just moved over to where Whidden Loop Road comes into Corkscrew Road. This viewpoint shows what happens when you have one of the WRAs that's used as a buffer, because in many cases we have these WRAs, which are naturally vegetated areas, on the edge of the property that prohibits or precludes us from building the perimeter berm. And so we want to show you what that looks like. So here we are, we're looking north, Whidden Loop Road, we're about 150 feet from the property line. The dragline, again, is at its closest proximity. That's the vegetation in the WRA. It's a mix of cypress and other kinds of vegetation. I think I skipped over one there. Okay. And that's a computer model. Again, we try to render the trees as close as we can get them in the model to represent what you would see. We then do the composite and we put the actual vegetation in. So, actually, the model is behind here. In other words, all the operations are, in this case, obscured by the WRA. But if you get up to a hundred foot level, you can see that, in fact, it is behind there. Viewpoint 4 is just a typical view along Corkscrew Road along the southeast property line. Here's an aerial photo of where this viewpoint is taken. In the case of this viewpoint, you know, the lake is actually quite a bit separated from the edge of the property line but, again, we put the dragline at its closest point. So there's a photo looking back to the southwest. There's the 12- foot -high perimeter landscape been. Page 25 of 87 March 15, 2012 In this case, along Corkscrew Road we have a different buffering requirement; it's a Type D. And the biggest difference is you have two rows of hedges rather than one row of hedge. But from a visual point of view it really doesn't make a whole lot of difference because it's the same kind of hedge. So you can see the dragline right now is in this corner right here. Now we put the berm in there and, yeah, you can see the, you know, very top of the dragline in that location. But keep in mind, again, that's at its closest proximity to that viewpoint. In this case, we did keep the orange trees in because we think that there's an ability to keep that grove intact for an extended period of time, but it really has no impact on the visualization or buffering elements because the other -- the perimeter takes precedence. Then the last visualization we did specifically, because there had been prior concerns, I think, about what the impact would be of Lost Grove Mine to CREW, and although there's lots of -- you know, the CREW actually runs along this whole edge -- we took this visualization from the access point. So if -- I think the analogy was if a busload of kids comes in to go to the CREW to hike, you know, there, what would they see from that perspective? And now keep in mind in this case the boundary of Lost Grove Mine is here, so all of this property that is in citrus is not within the conditional use, it's not going to be mined, and it's going to remain as an agricultural operation. So the property line is about 2,000 feet to the -- well, the viewpoint is 2,000 feet east of the property line. And there's a photo. Again, you can see here's the edge of the conditional use boundary. This is the driveway that goes into the access point. In this case the dragline is actually over 3,000 feet away from the viewer because the mining is on the other side of a water retention area. So there is no mining on the east side of -- this is sort of the edge of that water retention area. And this is not to be mined. This is just a photo looking at the trail access point. Here's a photo looking back toward the site. There is the visualization. There is no perimeter berming here because this is off site now, but we do have some orange trees that are there. There's the composite with the existing vegetation and the visualization in the background. And, again, if we pop up, you know, to the bird's eye view, you can see over there the operations, and that's basically in the southeast corner of Lake No. 2. And then, finally, I took this photo again just to show that we do have some existing conditions out on the site that also present some visual impact to adjacent properties. hi this case it's that major transmission line. These power poles are a little more than 100 feet tall. So with that, I'd be happy to answer any questions you might have about the visualizations. CHAIRMAN STRAIN: Anybody have any questions on the visualization? I've got one. The 25 -foot berm, it doesn't seem to have any impact on the visualization; is that true? MR. REYNOLDS: It didn't come into view in any of these viewpoints. What would happen is if you moved far enough away from the site, let's say you moved 1,000 feet or 2,000 feet away, at some point the height of the 25 -foot berm will start to be taller than the 12 -foot berm. But you'd have to be quite a distance away from the site before you could see over the 12 -foot berm to the 25 -foot berin. CHAIRMAN STRAIN: Okay. No matter how far you are from the site, would it be safe to assume that the 25 -foot berm would at least cover 25 feet of height of whatever is on the other side of it? MR. REYNOLDS: Yes, unless you get -- unless your viewpoint is higher than 25 feet. CHAIRMAN STRAIN: Right. MR. REYNOLDS: Okay. CHAIRMAN STRAIN: Anybody else have any questions on visual? (No response.) CHAIRMAN STRAIN: Okay. MR. REYNOLDS: Thank you very much. CHAIRMAN STRAIN: Don or Bruce, does that wrap up the rebuttal? COMMISSIONER BROUGHAM: There was reference to a blasting acoustical. MR. ANDERSON: Yes, sir, Mr. Chairman, we do have available for questioning Mr. Straw, who testified at your last hearing on blasting issues, and he is available for questions if you have any. We said we would limit our rebuttal to the two witnesses we were going to call. But we have all of our team members here to answer questions on Page 26 of 87 March 15, 2012 any of the subjects that you have questions on. CHAIRMAN STRAIN: Right. But this particular board's purview is going to extend to any questions at all throughout the course of the four days we've heard this. But my only question of blasting has nothing to do with the technicalities at this point of the blasting but more of the decibel levels and the measurements that would be used in the same correlation that your acoustical guy provided them. And then since he omitted those from his report, it would be nice to try to find out what kind of effect they have as decibel levels in the same 500 -foot distance. MR. STRAW: Mr. Chairman, members of the board, good morning. My name's Jeffrey Straw. I'm vice president and area manager of GeoSonics, Incorporated. And I'm not quite sure I followed the last question, but I did bring some information. I know that there was questions about how we measure and how that would compare to your noise ordinance. CHAIRMAN STRAIN: Well, my specific question is that right now if they're 500 feet from the property line with the nearest blast -- MR. STRAW: Okay. CHAIRMAN STRAIN: -- what is the decibel level at the property line from that blast? MR. STRAW: I don't know that I've honestly calculated at 500 feet, because we would be measuring under state statute at the closest structure. The measurement method -- and there's a little difference in measurement method. I mean, Gary talked to you about how we hear. And noise is based something -- typically by definition something unwanted. I've seen it as -- it's not having a musical tone or something like that. It's something that's outside of those ranges. So what we look at typically when we measure noise is how we hear. And how we hear noise is based on what we call the A- weighted scale. And you notice that that scale drops off. It doesn't take into account low frequency noise. Okay. If you look at A- weighted noise is typically how we hear. We don't hear -- this is frequency across the spectrum from 1 to 10,000 hertz cycles per second. The noise drops off. As we go down in frequency, our ears don't hear as well. It's kind of the opposite of the dog whistle, if you will. The dog whistle's the higher end of this scale. Dogs hear it, we don't hear very well up here; we also don't hear low frequency noise very well at all. Your ordinance for community annoyance typically takes in the range of what we hear. So you're dealing with the A- weighting. The C scale that is also included in your ordinance takes in a little bit more low frequency noise, but it doesn't take in as much as what we use for blasting. Blasting is considered in some parts of it infrasonic, very low frequency down below what we hear. But we have a lot of energy in the 20, 10 cycles per second range. Because we don't necessarily hear it, it's not necessarily an issue. But we are dealing with structures. Structures have an inherent natural frequency anywhere roughly -- for Florida, some of our bigger homes, bigger open rooms, 5, 6, 7 hertz; other structures up to about 20. So our structures are in this range, and that's where the air blast comes in down in this area. So we use what we call linear response. So I guess the issue is we would be measuring at those structures. The state has a series of criteria based upon the actual type of microphone of the seismograph, but there is nothing in the Collier County code that deals with frequency low enough for us to use that code. The state has said we'll use ground vibration standards that we have set forth. They also talk about air blast standards that we have. Based on our typical instrumentation, we use a level of 133 decibels, but we're measuring across all of the frequencies. And you can kind of, I guess, see what happens. This is a graphic from Charles Dowding who -- I know he's testified before this board before, but this is a typical blast sound trace. And you can see what you get from a blast A- weighted. This is C- weighted. But this is the linear response. This is what the structure -- we need to evaluate for structure. So -- and you can also see how much it drops off. This is at all -- these two are the same. But you can see what happens with A- weighted. You don't get much of the low frequency. With C- weighted you get a little more. But when we start measuring linear, as the seismographs do, we measure the whole blast. Now, I don't know the proximity of this, but you can see how much of this lower frequency energy is in there. Page 27 of 87 March 15, 2012 And either with the A- or C- weighting that we have with Collier County, they don't match up very well. That's the reason we have linear standards. I don't know that that quite answers your question, but it -- I don't have anything predicted at 500 feet. But we are measuring at the closest structure using this linear method. So there's not an apples to apples comparison for me to give you of what your noise code would limit. CHAIRMAN STRAIN: You definitely more complicated my question than I had intended. MR. STRAW: I'm sorry. CHAIRMAN STRAIN: My question was simple, and I understood why you don't have it at 500 feet, but you say you do have a decibel level at the nearest structure. So can you tell me the distance to the nearest structure and what the decimal level is at that point? MR. STRAW: I think the closest structure off the top of my head is about 1,100 feet, as I recall. And the levels would have to be maintained below 133 decibels at DBL. That's what the state limit would be. CHAIRMAN STRAIN: Right. How does that compare to the county code? MR. STRAW: It doesn't, because there's no -- you don't have a linear number. That's the thing. They're just -- they are truly -- no pun intended to Don's orange grove -- they are apples and oranges in what we're looking at. CHAIRMAN STRAIN: So you don't really generate the A- or a C- weighted sound level that's of a significance then in comparison to our county code, is what you're saying? MR. STRAW: They are there. I mean, the A and C are there, but because we're dealing with structures, they have such lower frequency natural response we can't really use A or C. They don't tell us very much. There's no standard that we use for blasting that says, okay, if you have a blast and you're using A, you should be at 50 decibels. They just don't have enough of that low frequency range to match up. So we -- every standard that I know of that's been developed -- I mean, Bureau of Mines, Office of Surface Mining Reclamation and Enforcement, even most of the international standards that I'm aware of use linear weighting. CHAIRMAN STRAIN: Thank you. Anybody else have any questions? (No response.) CHAIRMAN STRAIN: Nope. Thank you, sir. MR. STRAW: Thank you. CHAIRMAN STRAIN: Appreciate it. Bruce, am I safe to say you've concluded your rebuttal? You can just nod your head. MR. ANDERSON: (Nods head.) CHAIRMAN STRAIN: Okay, affirmative. Then, Ray, we will use the -- we'll ask for registered speakers. For those who haven't registered, I prefer that you do; although, I'll still ask at the end. If anybody hasn't registered and would like to speak, we're still going to listen. I do, again, remind you, five minutes, and it has to be limited to the acoustic and visualization issues. Okay, Ray. MR. BELLOWS: John Ban. CHAIRMAN STRAIN: First up, John. MR. BAN: Thanks, Ray. I'm John Band, live at 3350 Whidden Loop Road, very close to this operation. Yeah, Ray, you caught me offguard, but I'll do the best I can. Where do I start? I've got a lot of questions about this sound ordinance; number 1 being, where's it been for the last year? All of a sudden we get a sound expert in that's really concerned about, you know, the neighbors that are going to be adjacent to this property that's going to be developed into a mine. 1 just can't -- I've got so many questions about that because, No. 1, none of the weather conditions have ever been -- he didn't look into any weather conditions. I can only tell you that living there, it -- a cool dry morning, I can hear the truck traffic a lot better than a rainy afternoon. So the modeling that's been done today, under what conditions, weather conditions have they been modeled after? Because it will change, because I can hear it. That's got my concern. The other concern I have about the sound is, if he was taking measurements of a truck in that curve and it Page 28 of 87 March 15, 2012 spiked, put another 500 trips on that road a day. Then what are we dealing with? That's part of the noise that's going to be generated from the activity of this mine. The truck traffic on Corkscrew Road, even though they say they're not going to use Corkscrew Road, is going to be there, and the sound is going to be there from these trucks, especially going into that 10- mile -an -hour curve and slowing down, what have you. The idea that we're not going to be impacted by noise I find just ludicrous. There's going to be noise there from this operation. You can't sugar coat a mine. It's going to be what it is. It's going to be intrusive and very uncompatible (sic) to anybody that lives out there, not only just with the noise, but with the blasting. I know we don't even know what the blasting noise is going to be. Obviously, we haven't -- we didn't get that information. So with that, I'd just like to say, as far as the visual concerns, I mean, these are just hypothetical pictures. They're computer generated. I don't know what the visual's going to be. It really doesn't really --the visual part really doesn't bother me as bad as the noise. And I'd just like to know where this has been for the last year. How come they didn't address this? My trust is just shot. I can't believe that they're going to even think about doing something like this in an area so close to people. With that, I'd just like to say thank you. You caught me off guard, but I appreciate it. CHAIRMAN STRAIN: Thank you very much. Next speaker, Ray. MR. BELLOWS: Alvin Block. MR. BLOCK: Good morning, Mr. Chairman. For the record, my name is Alvin Block, 1500 Monroe Street. I work for Lee County government. CHAIRMAN STRAIN: You think you're going to read that whole packet in five minutes -- MR. BLOCK: No, sir, I'm not. I just brought my package up with me in the event that the commissioners had any questions that I would have to refer to. CHAIRMAN STRAIN: Thank you. MR. BLOCK: Before I get started, Mr. Chairman, I do need to be sworn in for today's hearings. I was not here at the time that the swearing in occurred. CHAIRMAN STRAIN: Thank you. (The speaker was duly sworn and indicated in the affirmative.) MR. BLOCK: Mr. Chairman, I'm going to stick solely to today's record, as you requested, to the acoustical and to the landscape buffering or the buffering requirements of visualizations that the applicant has talked about today. First of all, Mr. Chairman, listening to the experts today on the acoustical -- the noise and the acoustical, the expert discussed the noise from both a dragline operation and from a mobile crusher operation, but at no time -- and during their analysis they talked about the dragline operation, dragline being an electric operation that they analyzed and then superimposed onto the subject property. But in my review of the conditions that have been offered to this Planning Commission by the applicant in previous public hearings, there is no limitation as to whether it's a dragline operation or it's an electrical dragline operation. So I would caution the boards and the commission in consideration of that, because right now the offered conditions do not specifically address an electrical dragline operation. Going on to the visualization that the applicant has provided today, the applicant's visualization expert indicated that along the western property line, perimeter property line the berm is a 12 -foot berm in today's presentation. But, again, going back to the conditions that have been presented in previous public hearing dates for this particular project, it's only been offered at 8 feet. So please consider that also. There is a 4 -foot difference. They've also discussed during their presentations that the overburden perimeter buffer would be created as the mine moved from the northeast to the southwest. And as that overburden perimeter berm is created, it would be created as it moved south. The visualization today, expert, indicated that the plants that were there on the visualization are two years old and did admit that the plants were going to be smaller that -- at the time that they are actually planted on the berm. Page 29 of 87 March 15, 2012 I have to remind the Planning Commission that right now that berm does not exist and does not have to exist in the conditions until they get to that particular area. So the berm will first be created, then the plants will be planted. So it's even going to be very new at that particular point. You may not have that visualization, as you have seen today, all across that particular site. The applicant themselves admitted that the dragline only moves about 25 feet on maybe a daily basis. And, again, all of these comments are based upon the fact of the conditions that have been offered to the Planning Commission in previous public hearings. Nothing new has been presented today during today's public hearing as to new conditions. So I'm having to base my comments on the old conditions that have been offered by the applicant from previous public hearings. And, Commissioners, that's the completion of my presentation to you -all today. If you have any questions, I'll try to answer them. CHAIRMAN STRAIN: Just out of fairness to you, they did offer some changes to their stip -- to their conditions by and through our county employees -- county staff. We received those in our packet. One of those addressed the berm height. It has been moved from 8 to 12 feet. MR. BLOCK: We do understand that, Commissioner -- Chairman, because we did receive those. We received them last week. CHAIRMAN STRAIN: Right. MR. BLOCK: We have looked at those, but today's presentation and information that's been provided by the chair was that the basis of today's meeting was going to be solely on the acoustical information and on the visualization information. So I was not speaking toward any of the new information that has not been provided in this public hearing except during the visualization and the noise information. CHAIRMAN STRAIN: Okay, thank you. MR. BLOCK: Thank you. CHAIRMAN STRAIN: Anybody else? (No response.) CHAIRMAN STRAIN: Appreciate it. Ray, next public speaker. MR. BELLOWS: David Urich. MR. URICH: For the record, I'm David Urich, and I'm speaking for the Responsible Growth Management Coalition, of which I'm a life member. COMMISSIONER BROUGHAM: Closer to the mike, please. MR. URICH: I'm speaking for RGMC, which I'm a life member. Yesterday I attended a generational seminar at the university and found that I was in what's called the silent generation. I didn't realize that was my place. I've never been very silent, but -- and my kid brother is in the baby boomers generation. I'm computer dangerous, not computer literate. I come from the age when we didn't have these things. And although I respect the ability to visualize things through a computer, I never really believe it until I see it in three- dimensional fact. And I, personally, do not think that it's possible to have a full -blown rock mine operation with the blasting and so on without really affecting the environment around it. And I know it's been said very glibly, and I certainly would not want to -- I'm not an expert by any means in acoustics, sound, and blasting, I'm not in a position to ask questions. I thought you -all asked some very good questions. And I hope that you look at this thing very carefully, because once it's a reality, it's really hard to change. And that's basically my comments, in addition to what I said last time. CHAIRMAN STRAIN: Thank you, sir. Next speaker, Ray. MR. BELLOWS: The last speaker is Judge Starnes. UNIDENTIFIED SPEAKER: He'll be right back. He said to tell you he'll be right back. CHAIRMAN STRAIN: Okay. While we're waiting on him -- COMMISSIONER EBERT: There's another gentleman. CHAIRMAN STRAIN: Oh, come on up, sir. That's right. If anybody else does want to speak, we certainly Page 30 of 87 March 15, 2012 will accommodate you now. MR. WEINER: I'm sorry, sir. I didn't see the registration forms outside, but I'd be more than happy -- CHAIRMAN STRAIN: No. I forgot to open the offer up. When they said Judge Starnes wasn't here, I'd kind of forgotten. So, anyway, I'm glad you reminded me. Thank you. MR. WEINER: Okay. Thank you, Mr. Chairman. My name is Edd Weiner. I'm the CEO of the Lehigh Acres Economic Development Board, chairman of the board of the Community Council of Lehigh Acres and president of Lehigh Acres Community Planning Panel, all of which have authorized me to speak here today, as in previous times. I've got to tell you, I'm a pretty stupid guy, so when the professor from Gainesville spoke, I got lost real fast. I don't relate to decibel levels of 44, 50, 60, 72 unless I know what the decibel relationship is. What does 44 decibels sound like? Is that a motorcycle? Is that me speaking right now? Is that a jet plane taking off at Southwest Florida Regional Airport? I mean, we need to have -- or I need to have some better information rather than how -- what levels -- equipment or sound sounds like at that 500 feet. I live on a golf course on Homestead Road in Lehigh Acres, and at 5:30 in the morning there are two dump trucks every single day, tractor trailer trucks, that barrel down Homestead Road. I am at least 1,500 feet from Homestead Road walking my dogs, and the sound level is astounding. Now, I don't know whether that's 44 or 144 or 344, and so I would ask that the professor come back and kind of relate to some of us dumb people what those -- what those levels related to. I'm a little -- I guess I should back up. I guess I need to offer an objection to the testimony offered by the president of Alico right at the beginning. I'll offer you an objection right now. I should have done it when Judge Starnes did it, but I didn't know what your process was. But he has submitted new information to you that we're not going to get to comment on. If I understood what he said or what you asked, the entrance on to Corkscrew is now eliminated. I thought that's what I heard him say. CHAIRMAN STRAIN: You're right. MR. WEINER: That means everything comes out onto State Road 82, and I'm not going to have the opportunity to talk to that issue. I would prefer -- and it seems like the Alico Corporation has done a magnificant job of concealing, confining, and hiding their operation, and it sounds like it -- you could put it in a box and probably nobody'd ever hear it or see it. My concern is what happens outside the box. What's the sound level of a tractor trailer when it starts its five -gear move to get to 35 miles an hour? What's the sound of a tractor trailer when it uses its engine for breaking on entrance into the mine or moving down State Road 82? Again, I think the testimony offered has been -- to you has been great at concealing the mine, but I'm concerned what's happening outside the mine, outside the 25 -foot berm, outside the 60 -foot berm, outside the 12 -foot berm plus the 4 -foot bushes, which is 16 feet. I think that's all wonderful, but I'm concerned about what happens once somebody or something leaves the mine. I don't think the public has access to the mine. So what's inside that berm is certainly going to -- or that site is certainly going to stay inside that site. I would ask you please to consider or ask the questions of the professor as well as Mr. Reynolds what happens outside the mine. The -- I think the professor said there was a spike -- or you said there was a spike in the graph when two cars passed on Corkscrew Road at -- the spike was 79 dBA. I don't know what that means. What is 79 dBA? Is that a rock band playing or is that a jet engine taking off? What does 79 dBA relate to? And if there's a spike, you understand what happens when trucks pass by or try to -- cars try to pass each other or trucks try to pass each other. I'm really not concerned about seeing the top of the dredging machine. Keiser University just put up a prefab building, and you've got cranes all over the place. It's normal construction equipment. Please, please, ask the proponent what happens outside the site and how we judge it from normal, everyday activity. I thank you for your allowing me to testify, sir. CHAIRMAN STRAIN: Thank you. Appreciate it. Thank you. Next public speaker, sir. Come on up, identify yourself for the record. Come on up. MR. CONTI: Here or there? Page 31 of 87 March 15, 2012 CHAIRMAN STRAIN: Troy, if you're -- either one. Troy, yeah, some of the mikes have not been working right. He's our savior. He comes in and fixes these things somehow. MR. CONTI: Testing, one, two, three, four. CHAIRMAN STRAIN: Ah, you got a good one. Thank you. MR. CONTI: Is that good now? CHAIRMAN STRAIN: Yes, sir. Maybe it's your proximity to it that helps. MR. CONTI: My name is Steve Conti, and I have been a blasting engineer with no degree -- because there's no degrees from college for blasting -- for 35 years until I left Gulf Oil Company. I was with their explosive division. CHAIRMAN STRAIN: Sir, you've got to relate -- up here, this way. You need to relate your testimony to the acoustics or the visual. MR. CONTI: Did you hear what I said previous to this? Okay, fine. This is brand new to me, Mark, testifying before something like this. Well, anyway, I think one of the things we have to be concerned with is not only the sound but what environmental effects does the blasting of the rock below the ground do to existing homes in the area? Now, different rock have different density from something like a shale to something like a granite. And then even in those specifications, the density varies. What I heard this morning was there was going to be 15 million tons of rock to be excavated in that area. The density, I don't know the density of the rock here, but it can't be below -- CHAIRMAN STRAIN: You've got to relate this to something to do with the sound. COMMISSIONER EBERT: He is. MR. CONTI: Yes, okay. The concern now is there, what type of material are they going to use for blasting, gelatin, fluorite, ANFO, whatever; what type of blasting material? Because all blasting materials have a different velocity. And how much of it? Is there going to be something that the board's going to say you can only do so much blasting whether it's a thousand pounds, ten thousand pounds, a hundred thousand pounds or whatever? And I think that's important because that actually is what happens to a thing. CHAIRMAN STRAIN: Sir, I have to interrupt and ask you to cease. We need to have this related to the sound and visual expert testimonies that were here today. I can't see where you're going in relation to sound. MR. CONTI: Oh, okay. See, I'm not -- may I ask you this, Mark. CHAIRMAN STRAIN: Yes, sir. MR. CONTI: If I can put this in writing, who would I submit it to? CHAIRMAN STRAIN: Kay Deselem. She's the young lady there, and before -- we're going to take a lunch break in a little while. At lunch you might get her card. You also have an opportunity to express an -- that issue in front of the Board of County Commissioners when they hear this hearing as well. MR. CONTI: When is the next meeting is? CHAIRMAN STRAIN: When the next Board of County Commissioners meet. Whenever they schedule before the board. I don't know when that will be at this time. MR. CONTI: Well, thank you for the opportunity. CHAIRMAN STRAIN: Thank you for your consideration. Next public speaker? Yes, ma'am. MS. WHITEHEAD: Chairman Strain, thank you for giving me this opportunity to readdress the commission. And -- THE COURT REPORTER: Your name? MS. WHITEHEAD: For the record, Patty Whitehead with the Responsible Growth Management Coalition. We prepared the 140- plus -page document that as I understand you're not going to consider as part of the evidence or testimony for this hearing. Regardless, I would like to make comments to the effect that, you know, these issues are all holistically connected and related. You are -- when you -- and we're talking about the introduction of dramatically enhanced berms and buffers onto this site with the introduction of changes that will dramatically affect the hydrology and ecology of the adjacent CREW land. CHAIRMAN STRAIN: I spoke to you at break, and I asked you to stick to the acoustics -- MS. WHITEHEAD: Yes, sir. Correct, I am sticking to that. The point is is that when you create -- they're Page 32 of 87 March 15, 2012 reengineering the site to accommodate noise and glare issues. The reengineering will have effects to the hydrology that weren't previously considered. One ties into the other. They're inextricably linked. You can't deny that or try and shunt that aside. I mean, 25 -foot berms and 65 -foot berms are going to isolate lands and rob those lands of their hydroperiods. They're going to create an eco tone that will drain those lands and create denuded areas that will -- CHAIRMAN STRAIN: But, Miss? MS. WHITEHEAD: Yes, sir. CHAIRMAN STRAIN: Again, I don't -- I understand your concern. But you have to tell me how this relates to the acoustical issues or the visual issues. I know the berms are going to be high and they're going to separate areas. MS. WHITEHEAD: Correct. CHAIRMAN STRAIN: How does that -- how do you see that relating to noise and sounds, noise and visual? I mean, that's what we're talking about. MS. WHITE1 EAD: You don't understand what I'm saying. What I'm telling -- CHAIRMAN STRAIN: Go ahead, Brad. COMMISSIONER SCHIFFER: Yeah. I have a concern, because what she's really addressing is that since the last hearing the applicant has introduced these berms and stuff like that. So when would the public ever get a chance to address those -- MS. WHITEHEAD: Exactly. COMMISSIONER SCHIFFER: -- additional items? CHAIRMAN STRAIN: I don't think the berms are anything new on an excavation site. Every site's going to have stockpiles for the material. How is this any different than anybody that was knowledgeable about an excavation would have anticipated? COMMISSIONER SCHIFFER: Well, I don't know. I mean, they've introduced new elements here, I believe; they're new conditions. CHAIRMAN STRAIN: I think what they've done is positioned berms to better accommodate acoustical issues that they discovered when their expert did their survey, not to change the fact that berms are going to be existing on an excavation site. I can take you to any site in Collier County that does significant excavation, including the old Mule Pin Quarry before it was Heritage Bay. Their mounds were probably much higher than these. For 30 years I've seen those sit up there. So I'm not sure how this is any different, Brad, what they're suggesting other than moving things to a point where they're more reactive to the acoustics and visual. COMMISSIONER SCHIFFER: And, obviously, these berms were presented as being acoustical elements to do it. My point is not --I agree, I like the fact that they've introduced them. I'm just saying for her sake, when would the public have ever had a chance to address these new items? CHAIRMAN STRAIN: Well, the Board of County Commissioners' meeting is coming up. Anything that we don't get -- they don't get addressed here can be addressed there. This meeting was specific to acoustics and visual, and we are going to stay on track. COMMISSIONER SCHIFFER: It's your call. CHAIRMAN STRAIN: Now, I'll ask you again, move -- MS. WHITE14EAD: Yes, sir. CHAIRMAN STRAIN: -- to something more -- MS. WHITEHEAD: Yes. CHAIRMAN STRAIN: -- relevant to acoustic -- that's fine. MS. WHITEHEAD: I am. It's completely relevant. What I'm telling you is that there is natural ecology and vegetation that acts as a noise and sound buffer. When you create these berms, you are isolating lands, robbing areas of hydroperiods, and, therefore, having a detrimental and, you know, sort of off balance detrimental effect. So while they say that they're introducing berms and buffers for -- to limit, you know, the noise and glare effects, you're -- there's going to be an inverse effect to the natural ecology by the introduction of those berms and buffers. CHAIRMAN STRAIN: Okay. Is that your point? Page 33 of 87 March 15, 2012 MS. WHITEHEAD: Do you understand what I'm saying? CHAIRMAN STRAIN: I understand what you're saying. MS. WHITEHEAD: Okay. CHAIRMAN STRAIN: I don't necessarily agree with it. I understand what you're saying. MS. WHITE14EAD: All right. And why do you not agree with it, I guess, is what I'm -- CHAIRMAN STRAIN: I'm not here answering your questions. You're here to express your concerns -- MS. WHITEHEAD: Well, let me just --let me just follow up with a statement from our expert witness. As only one example, the proposed mining at the Lost Grove location would make it impossible -- THE COURT REPORTER: I'm sorry. I can't go that fast. If you could do that again. MS. WHITE14EAD: I'm sorry. There's only one example, the proposed mining at the Lost -- CHAIRMAN STRAIN: Miss, slow down. She's got to write it as fast as you say it for the record to be clear. MS. WHITEHEAD: All right. The proposed mining at the Lost Grove location would make it impossible to comply with the noise and glare requirements in LDC 10.08.00.D.3 because the trees in the neighboring properties will die from the unavoidable hydroperiod alterations. These trees buffer both noise and artificial light pollution; therefore, the proposed mine is not in the public interest and should be denied as provided in the conditional use procedure, 10.08.00.F, denial. COMMISSIONER EBERT: Thank you. CHAIRMAN STRAIN: Thank you. Anybody have any questions? (No response.) CHAIRMAN STRAIN: Thank you. Next -- anybody else that would like to speak? Judge, before you come up, I want to make sure all the public speakers are finished. You asked to be last. I'm just trying to -- JUDGE STARNES: I just wanted to make about a one - minute statement, not the final argument, but on this specific evidence. CHAIRMAN STRAIN: Let's just do those together when you come up, okay; otherwise, you get two bites out of the apple, and we've already had four days of this apple. So does anybody in the public wish to speak before Judge Starnes does? He will be the last speaker. Sir, after this gentleman coming up right now. MR. STAIGER: I'd like to speak, too. CHAIRMAN STRAIN: Yes, sir, after that gentleman. MR. LOTT: For the record, Neil Lott, Whidden Loop Road, 3319. And the wind direction is a major, major concern of ours, any blasting or the mining operation and, in our opinion, if we can hear that mine in operation, it makes it incompatible with our living quarters that we have in the area. And the other thing I wanted to address was, you know, Alico has pushed this land stewardship down our throat. I'm a born and bred farm boy, and I can tell you that if you destroy your land for the gain of monetary purposes, you're not doing land stewardship. Thank you. CHAIRMAN STRAIN: Thank you, sir. Sir, you want to come up now. No, the gentleman behind you. He was next. Oh, it's okay. He's waived to you, then. Come on. That's fine. MR. STAIGER: My name is Joe Staiger. I reside at 3225 Whidden Loop Road, Immokalee, and I oppose this. The acoustics, you kind of -- when you talk about it, look out on the graph and everything, you kind of look at it as right there and then. But, you know, their mine is projected to be 35, possibly, the way the economy is, could go 50 years. That's continuous noise every day, six days a week. It's not like somebody that is cutting the grass next door and all of a sudden, you know, a couple hours, turns it off. Maybe in two weeks he's cutting the grass again. This is a continuous bombardment of noise that we will have to deal with, so I oppose this mine. CHAIRMAN STRAIN: Thank you. Yes, sir. MR. MEEKER: Thank you, Mr. Chairman and Members of the Commission. My name is Jack Meeker. I live in Estero. And to be specific about the acoustics we talked about today -- from the expert about the human hearing Page 34 of 87 March 15, 2012 range, but we did not touch on what the animals can hear, and I think that is something to be considered. As far as blasting was concerned, we did provide an expert, Dr. Rix, at an expense of the residents and the neighbors in Estero and also Lee County. So I would -- please, go over his testimony in your deliberation. Now, as far as the visual, I think the visual presentation was excellent but also was lacking. It didn't really show that line of dump trucks that we're going to see. It was a beautiful picture. I liked his color slides, but it said more about what we didn't see than what we did. So please consider that in your deliberation. Thank you. CHAIRMAN STRAIN: Thank you, sir. Now, are there any other members of the general public that would like to speak at this time that haven't already spoken? (No response.) CHAIRMAN STRAIN: Judge Starnes, if you want to come up, then, and first make the statement you were going to on these topics, then I'll -- if you want to go into your concluding remark that you've been waiting for, we'd welcome it. JUDGE STARNES: Okay. First there was a question about the decibels. MR. MENZIES: Mr. Strain, can I interrupt for just a second? CHAIRMAN STRAIN: Yes, sir. MR. MENZIES: Bob Menzies on behalf of the petitioner from Roetzel and Andress. I understand Judge -- Mr. Starnes is going to speak on -- respond to the visual and sound elements that's the subject of this public comment here today, but I also understand that he's going to opine or provide some other comments, and I just wanted to express our objection on the record. He's a member of the public. He's a property owner that has -- owns property there in Collier County. He's no different than any of these other folks. We just objected to any additional comment beyond the scope of what you set forth today. I understand the board could ask -- JUDGE STARNES: Well, actually, I agree with what he's saying. My view of the procedure would be, is that I was going to give a brief public comment on three -- about a minute on the stuff today, then what I was granted, not as a member of the general public, but as a lawyer representing myself, as a landowner, to respond to their summary argument which would come after they make theirs. CHAIRMAN STRAIN: And if you'd let me respond to him, I would have said just about the same thing you just said. So with that, your objection is noted for the record. MR. MENZIES: Thank you. That's all I wanted to do. CHAIRMAN STRAIN: As the judge probably said on my behalf, that's exactly the reasoning that I was -- and I had promised him from Day 1 -- you didn't object to it from Day 1, so we are going to hear his final remarks. MR. MENZIES: You hadn't started talking about it, but I understand that you can ask for additional comment, and I appreciate that. Thank you. CHAIRMAN STRAIN: Thank you, sir. Go ahead, Your Honor. JUDGE STARNES: I still think it would be more appropriate for them to make their argument and then me to follow that for the argument -- CHAIRMAN STRAIN: It's not going to happen that way. JUDGE STARNES: -- but I'll go with whatever you adjudge. Well, the first thing I was saying, there was a question about the blasting. And this will be a -- and by personal experience I can answer that question. "Kawomp!" And we've all heard that. And as to the pictures, I think they were very nice. I loved the soft green. It's kind of like a Dr. Seuss book. I believe you -all have actually been to a mine in operation, and it doesn't look like that. And the other brief comment is the decibels on Corkscrew Road and at CREW of the -- what I will call the sighing of the pines and the birds chirping was equated to the same level of what noise you would hear from the rock crusher, the dump trucks, and the others. I believe that you can take into your own common knowledge that there's a difference in the quality of sound aside from the noise -- aside from the loudness, and certain things are irritating. And the sound of a dump truck or rock crusher is materially different than the sound of the wind blowing through the trees or a bird chirping and the Page 35 of 87 March 15, 2012 effect on the ordinary individual. And we don't have a psychological expert or anybody to present that, but that's what was lacking in that presentation. It is a -- it is something that, when common sense evaluates the types of sounds, you get a very different result. And I'll give you two brief examples. One is I have a place on Sanibel. We walk on the beach. We love it. On the weekends we hear -- it's somewhat faintly, but hear the band at the Lani Kai on Fort Myers Beach over three miles away blowing across, and it's irritating. It's not illegal, but it's irritating, so that's one example. Another is closer to you folks. Stevie Tomato's on Immokalee. You made a decision at your hearing, which the County Commission adopted, that the sound level would -- of outdoor music there would have decent barriers to not affect the residential structures about 200 feet away. Afterwards, after it went in operation and the music was played, the residents there were so annoyed continually by it and complained so much to the county that Collier County filed a suit against Stevie Tomato's to find a way to exclude them from playing the outdoor music. They were unsuccessful because a decision had already been made. The sound level was within the legal sound level under the Collier County ordinance. That was not in dispute. And so that, again, emphasizes the quality of sound and combined with the constancy of sound every weekday all day long. CHAIRMAN STRAIN: Just one correction to your reference to this board making a decision to allow Stevie Tomato's, to the noise -- JUDGE STARNES: Made a recommendation. CHAIRMAN STRAIN: We did not. In fact, I was on the board at the time, and I was an expert witness for the county on behalf of that case. We did not -- in fact, we recommended against drinking places at that location. Somehow everything we had transmitted to the BCC got -- didn't go through as carefully as it should have, and as a result, as you heard today -- in the beginning of today's meeting, we now have a consent agenda to make sure that our stipulations and our concerns get expressed accurately before they go to the board. JUDGE STARNES: I stand corrected, and I do recall that. CHAIRMAN STRAIN: Yeah. JUDGE STARNES: You are correct. You were under an assumption that something was taken care of that later was not. CHAIRMAN STRAIN: That's correct. JUDGE STARNES: So -- but the bottom line is, at the -- after the permit was issued, the sound level, although legal under the ordinance or not in violation of the ordinance, was of such great annoyance that even the county brought a suit. CHAIRMAN STRAIN: And you're right in that regard, absolutely. JUDGE STARNES: Now, I think you have to recommend denial of this application, and here are the reasons: If you go to your own code -- and I think when you make a decision on what your recommendation will be, it's important, particularly in a case like this, that it be structured according to the code. And the code has a very precise structure. It says, in a case like this with a conditional use application, that the board, the commission, must make a finding before recommending -- shall make a finding that the conditional use will not adversely affect the public use, and a lot of other things, and the satisfactory provisions or arrangements have been made concerning the following. So a specific recommendation on, and four specific things are listed: Consistency with the code and growth management; ingress /egress, traffic flow; effect of the conditional use on neighboring property in relation to noise, glare, odors or other effects; and the main one, compatibility with adjacent properties and other property within the district. Also, under Policy 5A, it's provided a new development, which is what this would be, shall be compatible with and complementary to surrounding uses. If you take that policy and the requirement for these findings, I maintain that legally you must snake a finding, and there is a box at the top that either ends your consideration or allows you to go further, and that box has opposite it the rock mine proposed is compatible with the surrounding properties, which include a nature preserve, a 100 - year -old rural residential community, and a residential community on the west side bordering it in Lee County with, I think, a couple of hundred residents in it, and then another Page 36 of 87 March 15, 2012 residence area on the north side in Lehigh Acres in the Columbus Drive area. It defies human reason to say that if you were initially planning an area with a nature preserve on one side and three other sides with a -- with residential areas, that you would plan to put in a rock mine. And so everything that they seek to do flies in the face of you making that finding. The -- and I think this is a good place for me to go to the next thing, which is that they put on two professional planners during their original case. I think it was -- I've forgotten her name. Margaret -- CHAIRMAN STRAIN: Margaret Perry. JUDGE STARNES: -- Perry, Margaret and then Dave Depew from Fort Myers. Neither one of those -- and I took careful note because I knew what this ultimate argument would need to be. Neither one of those expert professional planners used the word "compatibility" to the best of my recollection or gave any opinion on the compatibility. What they did was, without saying it, they assumed that it could be compatible, and then they gave ways of mitigating against those things that were incompatible. They never gave an opinion that a rock mine next to these properties were compatible. In fact, the only witness that they presented that used the word "compatibility" or included it was Mr. Straw, their blasting expert. He's not a professional planner. And the only way he used the word "compatible," I maintain to you, was legally inadmissible and would never make it into court, and that is he gave examples in other counties of where he said he saw a rock mine and there were some residences next to it. And, in fact, he went further and gave the example of a nature preserve with a rock mine next to it, and it turned out, on further questioning, there was no rock mine next to it. There was a commission decision that they would allow one. So none of their -- it's their burden to prove these conditions to put you in the position to make a finding. They did not do that. They offered no credible witness that presented an opinion on compatibility. I think also your staff has -- has a misinterpretation of the decision that you make and their recommendations to you. They are assuming that once an applicant gets all the appropriate permits, that that's satisfactory, and they just say recommend/recommending or approving the project, and that's not correct, because there is no other agency who is charged with the sole finding of compatibility. That's your job. And, in fact, in the DEP permit, which is the most stringent one, on Page 6, Paragraph 10, it specifically says, this permit does not eliminate the necessity of authorization by local authorities. Further, in their notice of intent to consider the permit and in the permit, there is not one indication, any fact, inquiry, or anything to do with compatibility, per se, period. They recognized that's your job. That's a local decision to determine compatibility. And so I maintain that when the staff offered you a report that recommended approval that did not address compatibility, that that was inappropriate. Okay. I'm trying to be as brief as I can, so I want to go through and eliminate anything I've already covered. Only -- Matt Noble. The only witness that appeared before you that, in any credible manner, went through the factors to consider on compatibility. Even though I know you're irritated with the time it took and it came at the end, he's the only one that went through all the factors, had the pictures and the PowerPoint that demonstrated graphically the issue of compatibility. That's the only witness, and he was -- CHAIRMAN STRAIN: Make a correction. The irritation wasn't about the time he took. It was that he misled me when he set his time up, and that wasn't right. JUDGE STARNES: Okay. CHAIRMAN STRAIN: So that's what I was upset about. JUDGE STARNES: Well, it was -- obviously you -all were irritated, and I would say that all of us were tired, too. And it did seem like he went on. And it's really in retrospect that I say we have to give him credit that he did address, as the only witness, the main factor that you have to make a finding on that's embodied in the code. So that's the main reason why I think this has to be a recommendation of denial. This is also a case -- because one of you, I think Mr. Minnet (sic), raised a question, oh, there could be a court case or a suit in court, and, of course, there is a procedure for doing this. I maintain to you that this is a case where, if there's any consideration of an attack on a decision ultimately to be made by the County Commission but based on a recommendation here, that what you should fear is not an attack Page 37 of 87 March 15, 2012 by the applicant should you deny it, but an attack by opponents if you -- if you should grant it for these very legal reasons. There just is no credible position to say that this rock mine is compatible with the surrounding properties. Here's the one personal thing that I've avoided saying all the way through this, because I've been, like you are, in a position of having to decide difficult cases, and you want to avoid any type of emotional approach, and that's kind of why I objected to the initial presentation. And so I'll try not to make this emotional, but I think this is factual and it's accurate, and somebody has to present it from our side, and that is for those of us who are property owners adjoining this property, our land will be devalued -- there's absolutely no question about that -- if a rock mine goes in here. Consider the fact that if you own property and there's an orange grove next to it, change that to a 12- foot -high berm. Now, that berm might be pretty well designed to try to avoid a lot of the connotations that we all see from seeing a rock mine. It won't do it completely, but it may be, from an engineering standpoint, a very reasonable approach to trying to do the best they can to make this not like a rock mine. But, again, consider, would you like to be -- have your property facing a 12 -foot berm? It's a subtle thing, but it emphasizes as much as anything else the incompatibility factor. Why would you have to put a 12- foot -high mound on a bordering property? Would that ever be allowed in a residential subdivision? Would it be allowed in a rural residential subdivision? I maintain to you that there would be objections and probably code violations if somebody surrounded their property with a 12- foot -high berm. So it's a subtle emphasis of that point. But when you combine blasting noise -- and remember, this presentation on the noise, every single element of activity on that property, at the site of the noise at least, exceeded the noise violation ordinance, from the dump trucks to the drilling to the pumping to each type of dragline and the rock crusher and the conveyor belt. Every single one of them. And you combine all of these things and the other subtle things such as the wind blowing dust -- I mean, you've been to a mine, and no matter how much they try to sprinkle water, there's going to be that factor. There are trucks moving all over the property, and the decibel level for the dump trucks, they've presented through their evidence, is 70, 80 decibels. It's moving all over the property. CHAIRMAN STRAIN: You need to get to a conclusion soon. JUDGE STARNES: I will. I'm right at -- about at the conclusion. CHAIRMAN STRAIN: Okay. JUDGE STARNES: And so, actually, that is as good a stopping point as any. If you combine everything, the noise, the site, the dust, the berm, and the blasting, this piece -- this operation is incompatible legally with the surrounding properties. And I maintain you need to check that box at the top "no, not compatible." Thank you. CHAIRMAN STRAIN: Thank you. Okay. It's a good time to break for lunch. When we come back we'll resume with the applicant's conclusions, maybe some questions from this board prior to that, and then we'll resume at one o'clock. (A luncheon recess was had.) (Commissioner Ahern is now present and Mr. Eastman has left the meeting.) CHAIRMAN STRAIN: Good afternoon, everyone. Thank you. Welcome back from your lunch. This is a continuation of the meeting we started this morning. It's CUPL- 2009 -1412, Alico Land Development. It's the Lost Grove Mine. We left off with the final public comments. We're now going to be moving into the balance of our hearing today. Before we hear from the petitioner on his concluding remarks, I want to make sure that any questions at this time from this Planning Commission are asked as a result of any input we've received during public testimony. Phil? COMMISSIONER BROUGHAM: I have a couple, if you don't mind. CHAIRMAN STRAIN: No. That's what we're here for. That's why I asked. COMMISSIONER BROUGHAM: Based upon the public input. And I don't know who needs to come up. But Mr. Wiener was -- made a point that there were no references in the dBA, the sound analysis in the dBA to what is a truck passing, typically, and are there any examples that we could provide Mr. Weiner just to close the loop on his Page 38 of 87 March 15, 2012 questions. I mean, what's a jet plane? What's an automobile going down the street? What's a bird chirping? CHAIRMAN STRAIN: There is a table in his appendix that has a lot of that in it. COMMISSIONER BROUGHAM: I saw that. CHAIRMAN STRAIN: It may not have all the ones you just recited, but there are quite a few in there. MR. SIEBEIN: Good afternoon, Gary Siebein. The table was -- those are sound levels that were actually measured in the vicinity of the site, so it doesn't include things like jet planes and so on. But we're out on the site and the wind blows through the trees and there's insects and birds and there's cars going along Corkscrew Road and so on, this is in the general range of 40 to 50 decibels. If you're right up close to the road, as cars and truck pass, there is an example that was discussed earlier that it varied from 50 dB as the cars and truck were further away and 79 as it passed by. COMMISSIONER BROUGHAM: What's a lawn mower, for example? MR. SIEBEfN: A lawn mower's in the mid 80s. COMMISSIONER BROUGHAM: A leaf blower, about the same? MR. SIEBEIN: Yes. At the operator's position, it's the mid 80s, a gasoline powered one. COMMISSIONER BROUGHAM: I was just asking for something to relate to. MR. SIEBEIN: Yeah. COMMISSIONER BROUGHAM: Another point that was brought up is that in the conditions to date, the gentleman did not see that you had specified that an electric dragline was going to be used. This is not for you, Mr. Siebein. But is that, in fact, in your conditions or in your proposal, your petition, or is it not, or do you wish to comment on it? MR. ANDERSON: That can be Condition No. 55, if I'm counting right, an electric -- CHAIRMAN STRAIN: You're not being picked up on the mike, Bruce. COMMISSIONER EBERT: Oh. I thought we had it fixed. MR. ANDERSON: We're certainly willing to stipulate that as a condition, add that on. COMMISSIONER BROUGHAM: I think that would be helpful. One more and then I'm finished for now. And I think it was a relevant point that was brought up by some speaker that, although we see the improvement in the berms, in the buffering, there was no mention of the timeline for the construction or the planting of these berms and the buffer trees and so forth and so on. Do you have any comment on that? MR. ANDERSON: Yes, I do. The 12 -foot berm as shown on the site plan will be put in place concurrent with the initial mining. The dirt to make the berms will come from the lakes that are being dug, but that's a -- if that's not clear in the conditions, we can certainly make it clear and make that Condition No. 56. COMMISSIONER BROUGHAM: So did I understand, Bruce, the berms that surround the property, basically, would be constructed in conjunction with the lake excavation, not prior to the lake excavation, because you're getting the material for the beams from the lake? MR. ANDERSON: Yes, sir. COMMISSIONER BROUGHAM: So you'd see a berm construction beginning and then marching down the west border? MR. ANDERSON: No. Wherever a berm is shown, that will be -- they will all be put in place, the 12 -foot berm, at the beginning of the excavation. They just have to get the dirt from the lakes to do it. COMMISSIONER BROUGHAM: All right. So you're going to start excavating up in that north -- the west corner, perhaps, you would excavate and transport the materials over and construct the berm, the 12 -foot berm, down the western boundary? MR. ANDERSON: Yes, sir. COMMISSIONER BROUGHAM: Okay, all right. Thank you. CHAIRMAN STRAIN: As a follow -up to that, the 12 -foot berm, are you saying you're going to create that with each lake or the whole property; for all three lakes would be -- that one 12 -foot berm you created initially out of the -- before -- when the mining begins on whatever section of the Lake No. 1 you begin on? MR. ANDERSON: It will be -- the beginning of the excavation at the mine, all the berms on all the boundaries that are shown will be constructed at that time from the material excavated from the first lake. CHAIRMAN STRAIN: Okay. The word "excavated" can mean something different in mining. Overburden, Page 39 of 87 March 15, 2012 for example, doesn't bring the necessary blasting and cuts that you're going to need from a dragline. Are you going to cut the -- make these 12 -foot berms with overburden, and if you are, wouldn't that be the process you'd want to use instead of having to really start the excavation? MR. SCHROTENBOER: Yeah, exactly. There's an acronym of terms being used. I'm sorry. For the record, Don Schrotenboer, president of Alico Land Development. That's exactly right, Mark. The acronyms are being used here. The commitment here is that the 12 -foot landscape perimeter berms that have been shown on the illustrations today will be the first thing constructed on site, and they will be built from the initial overburden that is taken off from the northwest corner of Lake No. 1. Okay. CHAIRMAN STRAIN: And then the 25 -foot berms, which are also termed "overburden stockpile," that will be done prior to the dragline then being initiated? MR. SCHROTENBOER: That is correct, yes. CHAIRMAN STRAIN: Okay. MR. SCHROTENBOER: Any other questions on -- COMMISSIONER BROUGHAM: That berm, not from me. COMMISSIONER EBERT: Tons of questions. COMMISSIONER VONIER: And they remain how long? CHAIRMAN STRAIN: Go ahead. Bill? COMMISSIONER VONIER: How long do those -- oh, I'm sorry. CHAIRMAN STRAIN: Go ahead, sir. COMMISSIONER VONIER: How long do those berms remain in place? MR. SCHROTENBOER: That has really been dictated by the DEP, the ERP permit. What the ERP permit calls out for is remediation to any available part of the mining operation as soon as it's available. So as soon -- what we understand that to be is that as soon as Lake No. 1 -- well, let me back up. The 12 -foot berm will be there the entire time the mine's operating. As far as the 25 -foot berm, we intend to leave that in place until each of the individual lakes are completed. So the 25 -foot berm along the western property of Lake No. 1 will be there and stay there until Lake No. 1 is completely mined out, at which time they'll move to Lake No. 2, to the east. And then the 25 -foot berm will be removed so that the remediation of those lake shores pursuant to the ERP permit will take place. COMMISSIONER VONIER: Okay. CHAIRMAN STRAIN: Okay. Brad? COMMISSIONER SCHIFFER: Question on the dragline. At the end of the day, are they left up? Can they be -- and I guess you'd have to have a light on them -- or can they be lowered down with no light on them? MR. SCHROTENBOER: Dennis, they drop them down? MR. ROSA: No. MR. SCHROTENBOER: They leave them up? Let me ask Dennis Rosa, our mining operator, to come and answer. MR. ROSA: No, sir. They've got to be -- normally they'll be left up for maybe two days or three days at a time. COMMISSIONER SCHIFFER: And then what? MR. ROSA: They'll lower them down to be able to mark the cable. COMMISSIONER SCHIFFER: But then they -- I mean, wouldn't they have a light on them then? MR. ROSA: Since there's no night operations, they probably will not have a light on them. COMMISSIONER SCHIFFER: Okay. MR. ROSA: There's no reason to have it. COMMISSIONER SCHIFFER: The neighbors won't have to look at this lit -up derrick out there. MR. ROSA: No, there wouldn't be a light. You guys -- I think the hours are six to six, and there's no need for a light on the dragline boom. COMMISSIONER SCHIFFER: Is it a problem to bring it down every night? MR. ROSA: Well, it's just wear and tear on the cables, I guess, that hold it up. So they would only bring it down when they absolutely have to. COMMISSIONER SCHIFFER: Okay. Wouldn't that relieve the loading on the cables when you lower it or Page 40 of 87 March 15, 2012 -- anyway. MR. ROSA: It depends on your -- I guess your point of view. The wear on the cable is determined by going through the shift -- the pulley. COMMISSIONER SCHIFFER: Okay. All right. Thanks. CHAIRMAN STRAIN: Okay. Anybody else have any questions? (No response.) CHAIRMAN STRAIN: I have a couple, not of you, sir, but of the sound expert again, if the gentleman wouldn't mind coming back up. Sir, we heard some concerns about the effects of the wind direction on the sound. Can you enlighten us as to how wind direction -- and the possibility -- also the climate, whether it's a dry, sunny day versus a humid, wet day? MR. SIEBEIN: Yes. At distances when -- of -- in the hundreds of feet, so when the equipment is close to the COMMISSIONER EBERT: It's not picking you up. CHAIRMAN STRAIN: I'm sorry. The mikes again. I don't know what's wrong with these mikes today, but we've not had good luck with them. MR. SIEBEIN: There you go. CHAIRMAN STRAIN: That's a little bit better. Thank you, Ray. MR. SIEBEIN: At distances that are in the hundreds of feet -- so when the equipment is closest to the property line, there's not that much effect on the transmission of sound by weather effects. At distances of thousands of feet, when the equipment is farther -- much farther away, there are weather effects. The most profound weather effects usually happen in this area when there are situations called temperature inversions where the -- normally the earth is warm and the temperatures get colder as they move up. In areas of Coastal Florida, particularly in the nighttime and very early mornings, 2, 3, 4 o'clock, a.m., as temperature inversions occur, where the ground is cold and the air is inversely stratified, sounds will travel at much greater distances than they would during the middle of the daytime. So there are no real mining operations that are scheduled during the middle of the night. For any of the case where there are some slight increases due to wind, I mean, wind tends to gust irregularly, so you get little blips of sound as the wind blows up or blows down. In all of our cases, we're so far below the county noise level limits that, you know, a little bit more or a little bit less, depending on wind direction, is not really going to be an issue here. CHAIRMAN STRAIN: Okay. Is there any distance where an operation like this fails to be heard, I mean, just regardless of the decibels? So, I mean, whether they're a half a mile, a mile, or five miles away. And the reason I'm asking the question is there's a lot involving this location that will have a bearing on new mines in Collier County in other locations, and I'm just trying to understand where a mine could go where it wouldn't have an impact. MR. SIEBEIN: Well, I was actually -- I think it was in this room several years ago when the County Commission looked at revising its noise ordinances and, you know, trying to establish what the county feels are reasonable thresholds to define acoustic compatibility. And there were a number of experts that the county engaged to contribute to this process and a number of citizens that provided input over a fairly extended period of time to develop the document that we're actually using as the basis. And what that process resulted in were discreet sound level limits, which we've used in our analysis to define what the community sees generally as acoustical compatibility for various zoning adjacencies. We did not do analyses that ran things out to the point of inaudibility. What we're seeing at this site is that the sounds of the mine are within the general vicinity of the existing ambient sound levels that we measured at the mine periphery and in the CREW area. CHAIRMAN STRAIN: Thank you. Paul, did you have something? COMMISSIONER MIDNEY: Yeah. Is noise additive? In other words, if you have an ambient noise and then you superimpose another noise onto that, does that increase the noise level? MR. SIEBEIN: Yes and no. I mean, it's like as -- if you and I were to talk together, people could hear your voice and they could hear my voice independently, but put a microphone in the middle, it would sense possibly a little bit of an increase from the two contributions. Page 41 of 87 March 15, 2012 So, I mean, at once, your ears, because they're situated on two side of your head, allow you to differentiate between several sounds that are occurring at the same time. COMMISSIONER MIDNEY: But if you have a background noise and then you superimpose another noise on top of it -- MR. SIEBEIN: Yes. COMMISSIONER MIDNEY: -- will that increase the decibel level? MR. SIEBEIN: Yes, it does. And I think I mentioned earlier that because decibels are logarithmic quantities, that if you have two sound levels that are of equal sound pressure level, 50 and 50, that the additive result is 53, for example. And, indeed, your noise ordinance recognizes this, because if you measure sounds in the presence of an ambient, there's actually a table in the ordinance that says, if I measure 53 and I have an ambient of 50,1 actually have to subtract from the higher level. So, I mean, that's generally acknowledged. COMMISSIONER MIDNEY: Thank you. CHAIRMAN STRAIN: Okay. Anybody else? (No response.) CHAIRMAN STRAIN: Thank you, sir. Kay, I've got -- since this was yours, I've got a couple staff questions. I tried to sit at lunch and think of the hardest questions I could ask you, so -- MS. DESELEM: Thanks so much. For the record, Kay Deselem. CHAIRMAN STRAIN: Actually, it was about some testimony we heard earlier. Did you -- to what extent did you consider compatibility in your analysis of this site? MS. DESELEM: I don't have it in front of me, but if you look at the staff report that has been submitted to you and is part of the record -- CHAIRMAN STRAIN: I know that's your -- I know staff does that with every project. MS. DESELEM: Yes. CHAIRMAN STRAIN: I just want it clear for the record. You did consider compatibility? MS. DESELEM: We did evaluate this project for compatibility. We did provide that analysis in the staff report. We have our findings on file with you. We are recommending that it be found consistent with the overall Growth Management Plan, which includes compatibility analysis. And we are recommending approval. CHAIRMAN STRAIN: Okay. And did staff, in making their evaluation, have all of the testimony and record documentation that the CCPC has today? MS. DESELEM: At that time, no, because there's been substantially more infonnation provided, and the conditions have been proposed to change; there's been a lot more information provided up to now. CHAIRMAN STRAIN: Correct. You have attended all four meetings? MS. DESELEM: Yes, sir. CHAIRMAN STRAIN: Have you heard anything, seen anything, or received or read any documentation that has changed staffs position from their initial evaluation? MS. DESELEM: No. In fact, I believe that the proposed conditions and the things that have been addressed up to this point make it even more compatible, because they've increased setbacks and increased buffering as far as the berms and that type of thing. So I think you're seeing an improved project over what we initially evaluated. CHAIRMAN STRAIN: Okay. Thank you. That wasn't too hard, was it? COMMISSIONER EBERT: I do have a couple questions. CHAIRMAN STRAIN: Oh, Diane. COMMISSIONER EBERT: Kay, they mention that they just had another neighborhood --a NIM meeting just recently. Did you attend that? MS. DESELEM: No, I did not. It wasn't required by the Land Development Code. I don't know that I was even advised that there was a meeting going on. COMMISSIONER EBERT: Okay. MS. DESELEM: Which they wouldn't be required to do. They can do that on their own. In fact, normally, petitioners are encouraged to meet with the neighbors and try to resolve issues and discuss what the project is about and ongoing changes. But they're not required to let me know nor am I required to attend other than the required NIM by the Land Development Code, which was held. Page 42 of 87 March 15, 2012 COMMISSIONER EBERT: Okay. It was mentioned that they just had one, so I wanted to know if you attended. MS. DESELEM: Yeah. I think -- total I think that's, like, the third one, because I think they had one in Collier County which was the required meeting. They had another meeting that they held in Lee County, and then the one that they mentioned this morning. COMMISSIONER EBERT: Okay. Thank you. CHAIRMAN STRAIN: Okay. Does anybody else have any questions before we go into the applicant's concluding remarks? Go ahead. COMMISSIONER EBERT: I have a lot of questions. Mr. Schrotenboer, if you could please come up, I have some questions on your -- CHAIRMAN STRAIN: The reason I'm asking for them now, it's typical, we want to make sure all the questions are on the table so if they have any concluding remarks that they want to weave into the questions, they have the ability to do so. COMMISSIONER EBERT: I do have a couple questions. Why did you feel you had to go back and get more information? Because you did this complete acoustic analysis and everything else. You're trying to make conditions better. But this was just brought forward after the January meeting. Why did you feel you needed to do this? MR. SCHROTENBOER: It was a response from pub -- I'm sorry. Oh, Don Schrotenboer, president of Alico Land Development, for the record. It was in response to the public comment. It was part of our rebuttal to the comments that we were hearing in regards to noise and visualizations. It wasn't after the January 3rd. It was the meeting previous to that. I don't know if -- I forget the dates. Maybe there was one in December. But it was a combination of the first two meetings. January 3rd was our original date to have the information. We were unavailable -- I mean, it was not available to present, and that's what brings us to today. COMMISSIONER EBERT: Okay. I notice you're eliminating the access to Corkscrew Road. Does this mean that no trucks will travel Corkscrew? MR. SC1 ROTENBOER: I don't believe that's being applied, no. The access, the direct access onto Corkscrew Road, has been eliminated. COMMISSIONER EBERT: But you still anticipate the amount of traffic that you initially had said, approximately 10 percent or so, on Corkscrew? MR. SCHROTENBOER: Our original estimates were correct, that we anticipated about 10 percent of the traffic to exit Corkscrew Road, and that's what's being eliminated. COMMISSIONER EBERT: Is the 10 percent, okay. Your mining depth reduction from 145 feet down to 95, how long do you anticipate this? Because that was at 30 years, going down to 145, and now you've brought it down to 95, shorten -- are you shortening the time? MR. SCHROTENBOER: If I understand the question correctly -- and correct me if I don't answer it correctly -- the elimination of the depth of the rock from 145 to 95 feet occurred by the reduction of the mining lake in this Lake No. 3, the southwest corner, the last lake. When we increased -- reduced that lake and increased the buffer to over 1,200 feet in that area, that eliminated the deepest portions of the rock. So any time that you eliminate mining lake, you are certainly shortening up your time period of the overall schedule for mining, as there's going to be less to mine. COMMISSIONER EBERT: Okay. In years, do you know how many less years, or are you still planning 30 years for this project? MR. SCHROTENBOER: In my opening remarks this morning, I commented that the reduction of 79 acres of lake roughly computed to about a loss of 15 million tons of rock. Difficult to estimate the duration that's been eliminated because of market conditions. But given full capacity, you're probably somewhere -- a reduction of anywhere between three and five years overall of the mining excavation. COMMISSIONER EBERT: Okay. Well, that helps. I mean, because I'm thinking there has to be something. Page 43 of 87 March 15, 2012 So you're saying three to five years approximately is -- MR. SCHROTENBOER: That's clearly an estimate. And in today's market, that's probably over ten years. COMMISSIONER EBERT: Okay, thank you. CHAIRMAN STRAIN: Any other questions? (No response.) CHAIRMAN STRAIN: Okay, thank you. Bruce, if you want -- I'm assuming you're doing the concluding remarks? MR. ANDERSON: Yes, sir. For the record, my name is Bruce Anderson from the Roetzel & Andress law firm. I should have identified myself earlier when you -all started asking questions. But I was so anxious to answer the questions, I forgot. CHAIRMAN STRAIN: Well, I think everybody knows who you are. MR. ANDERSON: Well -- CHAIRMAN STRAIN: Including the court reporter. MR. ANDERSON: I want to thank you again for your patience and close attention to everything. I want to formally ask that you accept as part of the record the submission that was dated February 23rd that you -all received. Just want to make sure that that gets accepted into evidence. CHAIRMAN STRAIN: That was the package supplied by staff at our last Planning Commission meeting. Does anybody have any problems with that? If not, is there a motion to accept into evidence the Alico Land Development cover page and all the attachments dated February 23, 2012, as distributed by county staff? COMMISSIONER VONIER: So moved. CHAIRMAN STRAIN: Made by Bill. Seconded by -- COMMISSIONER BROUGHAM: Second. CHAIRMAN STRAIN: -- Phil. All those 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. MR. ANDERSON: Thank you. Let me say initially that I've been surprised today that we were being criticized for trying to be responsive. That doesn't often happen, and we were just trying to be good responsive people. Back to -- I want to talk about facts and conditions. It needs to be made clear and emphasized again that the questions that have been raised by some concerning the effect on the aquifers and regional groundwater quality and the hydrological effects of the mine on CREW lands have been determined; those determinations were made by the Florida Department of Environmental Protection when they approved a permit for this project, and they made two very important findings in that regard. Number 1, replacement of citrus groves with reclaimed quarry lakes should improve the water quality and quantities for CREW lands and, secondly, testing shows that the site can be mined without adverse impacts to regional groundwater quality. Those findings are contained in the February 23rd documents under the tabs labeled "FDEP notice of intent" and "ERP permit." The Department of Environmental Protection is the state agency with the expertise and jurisdiction over these matters. And as county staff testified, Collier County defers all six determinations to DEP. Now, last March when the notice of intent to issue the permit was published and mailed, the notice was Page 44 of 87 March 15, 2012 mailed to -- and if you'll look at the last page of the notice of intent, it has the listing of who -all received copies: The CREW board staff, the Conservancy, Collier County Audubon Society, and the Florida Audubon Society. All those organizations received individual notice from the department that the department intended to issue its approval for Lost Grove Mine. If any of these groups wanted to dispute or question the science of DEP's findings and determinations about the CREW land or groundwater, generally, they had notice and an opportunity to do so. They had a time limit within which to ask for a hearing with DEP, but they did not. So the findings and determinations became final. And because Collier County defers to DEP on these matters, these DEP findings must be accepted for the purposes of the review of this application. The opponents weren't willing to raise these concerns with people who have the scientific background and expertise. Instead, they raised fearful speculation and conjecture and, frankly, in my opinion, tried to buffalo you. The DEP -- the CREW -- and as Mr. Schrotenboer told you this morning, the CREW board, governing board, was asked several times to oppose this project, and they declined to do so. Similar -- similarly, questions concerning weather and what kind of effects the mine may or may not have on protected species, including compensation with other lands with better habitat value and other conditions are deferred to the Florida Fish and Wildlife Conservation and the U.S. Fish and Wildlife Service. You heard testimony that the panther compensation lands offered by Alico are better panther habitat than those that which exists at the mine site today. The statement of position from the Florida Wildlife Federation points that out and also points out that the compensation lands fill an important gap in a wildlife corridor for the panther that has been on the state acquisition list for many years. It is one of several reasons that they cite as why they do not oppose the Lost Grove Mine. The staff approval conditions require that any species - related project commitments from U.S. Fish and Wildlife Service must be incorporated as conditions of approval for the site plan. The county's Environmental Advisory Council heard all the same type evidence that you folks did, and they unanimously recommended approval. Please keep in mind that the areas in Collier County where mining of limerock is permitted are very limited. The property must meet a three -prong test, scientific and legal test. First of all, you can only dig where the rock is. Mother Nature did not distribute it evenly. Secondly, Collier County only allows commercial earth mining in the rural agricultural zoning district. Thirdly, the third stage, within the agricultural zoning district, the locations where mining can occur are further restricted to receiving land in the rural fringe into lands within the Rural Land Stewardship Area, such as this property, that are designated as open space. If these three tests are passed, then and only then is the property eligible for earth mining. The property -- the Lost Grove Mine property passes that three -prong test, and it is designated as a place where earth mining is allowed as a conditional use. The area where the Lost Grove Mine is proposed is a typical rural area where crops are grown, cattle are grazed, and the population is sparse. Because Collier County LDC only allows mining in the rural areas, rural agricultural areas, and only by conditional use, the county has previously made a determination in the Land Development Code that earth mining can be compatible with other uses allowed by the rural agricultural zoning district. Our conditions have met the compatibility test. You received evidence from the county's planning staff, Mrs. Perry from WilsonMiller /Stantec that this project meets all of the requirements of Collier County, including a finding that the conditions of approval proposed by the applicant and the staff address the conditional use criteria including, specifically, compatibility questions. Alico has held three different meetings with nearby property owners. The most recent one was February 25th. We scheduled it for a Saturday morning so no one would have to take off work to come. Alico has been very attentive to concerns expressed by residents in the area and has made real and substantial changes to address those concerns. I want to highlight some of the most important conditions. Perhaps most importantly my client has agreed to give up access to Corkscrew Road. This was a significant concession to area residents and to the environmental organizations who demanded that there be no such access. Secondly, my client has agreed to provide a minimum setback of ten times the setback that would be required by the Land Development Code. It's a 500 -foot minimum setback. Within that setback -- in addition to the setback there's a 75 -- 60 foot wide -- excuse me. The 500 -foot setback is a minimum of 70 feet wide and 12 feet in height, all Page 45 of 87 March 15, 2012 of which will be vegetated. Additionally, within the mining area, there are two more berms, the 25 -foot and the 60 -foot, to further screen views and sounds. Another important point, I think, to everybody that has concerns about this, is that the conditional use. Under the conditions we proposed, the conditional use can be revoked if the mine operator violates the conditions of approval and fails to correct the violation. It's the very first condition on there. Another important condition offered by Alico is that the approval would be brought back to the Board of County Commissioners three years after the mining starts to determine whether additional conditions are necessary, and such reviews would continue to occur after that every five years. Another condition, formation of a neighborhood committee to interview and select one or more independent engineers to investigate blasting damage complaints. My client will establish a separate account in the amount of $150,000 to pay for any damages that the engineer determines were caused by blasting at the Lost Grove Mine. At all times -- that $150,000 deposit shall be replenished and will be available at all times to pay such claims. This is a private, voluntary dispute resolution that is in addition to any claims that may be filed utilizing the state administrative procedure. My client will furnish proof on or before January 1 of each year that the $150,000 balance has been maintained. This $150,000 account is in no way a limitation on the amount of any damage claim; however, it is intended to provide a timely remedy outside the judicial process for resolution of any blasting damage claims. The county requires a mine operator to maintain a $1 million comprehensive general liability insurance policy for any damage that may be caused as well. Another condition, the stacking of haul trucks on site. Queuing on a public road is prohibited. Blasting is limited to no more than eight days a month, Monday through Friday, nine to four. A preblast inspection will be offered to all property owners within 1,500 feet of the conditional use property boundary that grant permission to access their property. These inspections will be completed interior -- for the interior and exterior of the structure, provide photographs. Those photographs will be provided to the property owner and to Collier County to keep it in their records, and the cost associated with the preblast inspections and the post -blast inspections are paid for by the mine operator. A local damage contact must be established before the mining operation commences so that if people have questions or concerns or complaints, they will have a point of contact to know who to contact. We will provide the name of that contact to Collier County, and also it will be mailed out to all property owners within 1,500 feet of the conditional use boundary. Your decision must be based on the facts, not emotional appeals based on conjecture and speculation. I think the facts as they line up all favor approval of this mine, and we request that you follow the lead of the county's own Environmental Advisory Council and recommend approval to Collier County of this application. And, again, thank you very much for your time. CHAIRMAN STRAIN: Okay. Thank you. Based on the concluding remarks, are there any questions from the Planning Commission? Did you say something? COMMISSIONER EBERT: Mark? CHAIRMAN STRAIN: Go ahead. COMMISSIONER EBERT: How many conditions do we already have on this? CHAIRMAN STRAIN: Depends on whose notes you go by. COMMISSIONER EBERT: And I notice that Brad asked a question about no lights, so I wanted to know what condition that was going to be. CHAIRMAN STRAIN: There's conditions addressing the lights. But what I was going to do is when we finish with questions of his concluding remarks and any other general questions, I was going to walk through all of the stipulations so that, depending on what motion is made, if the motion maker makes an affirmative, they can have the benefit of the stipulations. If they make a negative, at least the stipulations are on record for the BCC to potentially use. But at this point let's -- we can proceed any way you want. It's up to every commissioner to make their own mind up. But does anybody have any questions on the concluding remarks? Page 46 of 87 March 15, 2012 COMMISSIONER SCHIFFER: No. CHAIRMAN STRAIN: Are there any -- at this point we'll conclude the public hearing and go into discussions by this panel, and that means we have the opportunity to selectively ask questions of whoever we want to get to our conclusions. COMMISSIONER EBERT: Okay. CHAIRMAN STRAIN: A couple things, I think, that would help us start is, first of all, Kay, you could come up again. This is an easy question. Just bring your staff report with you. The paperwork on this is over 1,000 -- I betcha there's 1,500 pages here -- COMMISSIONER EBERT: I have four books. CI IAIRMAN STRAIN: -- at least in mine. You could save me a lot of thumbing through things if you could read for the record staffs recommendations at this point in time. Because one of the stipulations, if it were to be affirmed, would be staffs recommendations, unless they're modified by something else that we have in mind. MS. DESELEM: Staffs recommendation -- for the record, Kay Deselem, Collier County zoning. Staffs recommendations begin on Page 16 of the staff report that was last revised 10/26/11. We are recommending approval, and we started out with the Conditions 1 through -- ending with 17. And, obviously, it was my understanding we were also going to go over the conditions from the Jones Mine and kind of go over that in relationship to these. But these -- at the time, based on the information we had, these were staffs conditions. CHAIRMAN STRAIN: I think what my concern is, that -- if we go through a series of stipulations and they differ from staffs. But at the end of our stipulations, we include all of staffs recommendations, I don't want to have a conflict. And so maybe to expedite or save the -- save you having to read 17 of them, you could follow along carefully, and if we do something that's inconsistent with yours, point it out to us so we can understand for the record what that encompasses. MS. DESELEM: Certainly. CHAIRMAN STRAIN: Okay. MS. DESELEM: And I'll have John Podz -- he's looking at it from the transportation aspect, and I believe Chris D'Arco is looking at it for environmental issues. CHAIRMAN STRAIN: Okay. And if anything that we don't say in the 50 or 60 stipulations that are discussed still resigns with your recommendations, please point those ones out that we did not mention. MS. DESELEM: Thank you for that opportunity. CHAIRMAN STRAIN: Okay. MS. DESELEM: Yes. CHAIRMAN STRAIN: Before we get into that, I was wondering if Reed Jarvi could come up here and respond to a question that I kind of preliminarily told him I was going to ask. So hopefully -- Reed's one of the new boys on the block. Not new to Lee County, not new to Collier County, but certainly new to being part of Collier County staff. So, Reed, as you know, I've been concerned about State Road 82, and I've heard a lot of testimony about it as a failed road. Different phrases were used in that regard. So I pulled the Lee County -- what I think they have as the equivalent to our AUIR. It's called the 2011 Lee County Concurrency Report. And in there I found a lot of references to State Road 82. Basically it's a -- they have different levels of service at different points. But I was confused about how they -- the numerics applied to the levels of service. And, Reed, could you explain to us the issues with State Road 82 in regards to concurrency and/or levels of service? MR. JARVL• For the record, Reed Jarvi, transportation planning manager. And I'll attempt to do that as I understand your question. Lee County does a little different than Collier County, but it's along the same lines. And State Road 82 in Lee County is governed -- the level of service standard is governed by Florida Department of Transportation. The standard for that road is Level of Service C, and there's various volumes or capacity volumes for that Level of Service C. And the area -- let's see -- one through five segments of State Road 82 going backwards from the county line goes to Alex Bell Boulevard, from Alex Bell to Alabama, Alabama to Gunnery Road, which is also Daniels, and Gunnery Road to Gateway, and then Gateway to Colonial. That's the five segments that I have highlighted here for State Road Page 47 of 87 March 15, 2012 82. And that Level of Service C is on all of those as a standard, with the exception of the last one I just mentioned, which was Colonial -- excuse me -- Gateway to Colonial, going south to north, or east to west, depending on which direction it is at that point in time. The interesting thing that we -- that Lee County does slightly different than Collier County is those level of service standards, which vary from around a low of 710 vehicles per hour, p.m. peak hour, to a high of 1,420 vehicles per hour, are for that Level of Service C on -- from the FDOT standard. There is more traffic on that road in the 2011 concurrency manual for two of those -- or one of those segments, which is Alabama to Gunnery Road that exceeds their Level of Service Standard C. It is still a Level of Service D, which in Collier County is the minimum, D, sometimes E -- mostly E, sometimes D. So although the road is below its level of service standard, it is not a failing road in that it's still operating at D, which is not a failing grade. It's just below its level of service. Does that help? CHAIRMAN STRAIN: It helps. MR. JARVI: Or did I confuse it more? CHAIRMAN STRAIN: But I've got -- Reed, I've got their concurrency report in front of me, and it may be simpler, so the other Planning Commission members could see it, if you pass it down so Ray can put it on the overhead. And the segments you're talking about are the ones towards the bottom of the yellow highlighted area. MR. JARVL• Yes, sir. CHAIRMAN STRAIN: If you've got a Level of Service C, it says up on top, the standard, and then the two columns, level of service, LOS, and capacity. How can the same level of service have two acceptable different capacities? Now, that isn't the actuals. That believes (sic) is the allowable capacity. So how did we get there? MR. JARVI: Okay. There are many input values to level of service capacity standards with the road; whether or not it has shoulders, number of driveway connections, how many signals there are, closeness of objects to the road that go into that calculation, so they can vary somewhat, you know, a fair amount depending -- for what would be considered the same road, being that, in this case it's all a two -lane road, because they vary, like I said, from a low of 710 at Gateway to Gunnery, to a high of 1,420 at Colonial to Gateway. CHAIRMAN STRAIN: So that's the same two -lane road. I mean, it's still a two -lane road. So in that case -- in one case the two -lane road can be 710, and the other case, the same two -lane road can be 1,420. MR. JARVI: Yes, sir. I mean, it is potentially possible, and that's the way Lee County has codified it. CHAIRMAN STRAIN: Okay. So the traffic from this particular project -- although, I think the most particular or concerning piece was the third one up, Gunnery to Alabama, because it has an established C but it's operating at D. And the D that it's operating at is still below the D that the Colonial to Gateway piece is operating at. MR. JARVI: Colonial to Gateway has -- CHAIRMAN STRAIN: 1,151. MR. JARVI: 1,151, yes. CHAIRMAN STRAIN: And Gunnery is taken at 1,310. So that's actually got more than the one up there, but because they've established a lower level of service, it's acceptable? MR. JARVI: Well, it's a -- CHAIRMAN STRAIN: It's not -- I mean, it's not a higher level of service, let's put it that way. MR. JARVI: Yeah. It all gets confusing with higher or lower. CHAIRMAN STRAIN: Do we have any roads -- I'm trying to understand how this would be in Collier County. Do we have any roads in Collier County that we have a comparison between the two -lane versions that we have here that you know oV MR. JARVL• That is compatible to the two lane? CHAIRMAN STRAIN: Yeah. Well, comparable to the two -lane differences. If a section of two lane can support 710 but the section next to it only 1,420, what happens to all of them in between? Where does the -- well, for example, if you look at the fourth lineup, the one that says -- I circled 710 on, the actual is 598. Now, above that segment is 1,151. So somehow between that segment above and the segment below, it loses half its capacity, yet they're still Page 48 of 87 March 15, 2012 just two -lane roads. MR. JARVI: Yeah. And if you go a step further, you could say that it's Level of Service C, that particular road, at 500, or it's almost 600 vehicles, where the one above it has Level of Service B and it's 1,150 vehicles. So its almost twice the traffic and it's actually a letter grade better. But traffic is strange at best, and there's a lot of influences for what the level of service standards would be, and it's not -- there's no simple formula. It's a very complex formula. CHAIRMAN STRAIN: Yeah. John, did you want to jump in? MR. PODCZERWINSKY: Yes. I need to chime in for one moment. And Mr. Price from Lee County, if you could nod yes or no. We have an incorrect line that's on here. One of these that indicates that it's a two -lane is actually a four -lane segment. CHAIRMAN STRAIN: Rob, go ahead. MR. PRICE: I can explain it. CHAIRMAN STRAIN: Well, no. I just pulled it off your website the night before last. MR. PRICE: Yes, sir. I create this document. My name is Rob Price, for the record, with Lee County. The two -lane segment there, the reason it says two -lane is because a portion of it is two lanes. What has happened recently, the county and the state have -- and the City of Fort Myers have gone together and actually widened a portion of that link to four lanes. So when we have created the capacity for that link, it's taking into account that a portion of it is a four -lane road. That's why the capacity is higher on that two -lane segment than the next segment down and the next segment down. CHAIRMAN STRAIN: You acknowledge your concurrency report doesn't tell anybody that? MR. PRICE: Well, yeah. You're correct. I mean, it doesn't tell anybody that, but that is the reason that the number's higher. CHAIRMAN STRAIN: Okay. Thank you very much. MR. PRICE: No problem. CHAIRMAN STRAIN: Reed, in Collier County when we have a road that has failed its level of service, we have options available to fix it. The board has many times lowered the level of service to D or E, and we have roads operating that way a lot in Collier County. I noticed that even in Lee County they use the Level of Service E in a lot of the categories. So I see they're using it. But in -- Page 56 of that same concurrency report in the same location, the road system there, it says that they've got no improvements planned for that area in question where they've lowered the level of service. How do you -- how would we in Collier County recover from that? I mean, does that mean that because there's no improvements planned you're not allowed, then, to add more traffic to it because it's reached some excessive capacity? And if so, isn't that like a de facto moratorium? MR. JARVI: It could be viewed that way. In Collier County we typically have a possibility of developer mitigation if it's an intersection that's causing a problem or, in the extreme cases, it could be, you know, add another lane to each side of the road, although I've never seen that actually happen. I've seen the discussions of that. But we've had situations where we would donate right -of -way possibilities as a condition of mitigation, and then also you might remember that we have three areas in Collier County, two traffic transportation concurrency management areas and one concurrency exception area, that have different qualifications that would allow something to go forward if other situations were possible. And there are ways to mitigate accessing or impacting a deficient road. CHAIRMAN STRAIN: Okay. Go ahead, Diane. COMMISSIONER EBERT: Yes. Along the same line, Reed; this has bothered me a little bit, and I have been in to see staff about this. I believe Alico is planning on 1,350 trucks a day around that area. We also did last year the Immokalee Sand Mine and which only exits onto this same state road, and theirs was 1,400 a day. So we have approximately 2,750 trucks just from these two operations going. Besides, I was told that this is a state road. This is under their jurisdiction. It is also a hurricane evacuation route, and --I don't know. I just thought approximately --and that's just from our two places in Collier County. And so I know they go north and south. It's -- to me that is just a lot of trucks on that very narrow road. And I Page 49 of 87 March 15, 2012 was wondering, can -- can Collier County go to the state and ask for -- nothing is planned for that till many years out. Is there anything we can do -- MR. JARVI: Well, first off, I couldn't characterize State Road 82 as a very narrow road. I mean, it's a two -lane road, yes, but they recently -- and Rob may have a better idea on the timing. But recently, in the last several months, have repaved it, and it's a two -lane rural highway with paved shoulders and appears to be 11- or 12 -foot lanes. And, you know, I was out there yesterday, and it's in very good shape. I mean, not so long ago it wasn't in very good shape. But they have repaved it recently, and it's from at least Gunnery Road to the county line. And it's, you know, not a -- what I'd call a small road. It would be able to handle truck traffic. I mean, it's a state highway. That's what state highways are for. There -- you know, there's an amount of traffic on it, but it can handle it. COMMISSIONER EBERT: So Gunnery -- are you saying Gunnery Road is the same as Daniels Parkway; is that what you're saying? MR. JARVI: Yes, Daniels, then south. COMMISSIONER EBERT: So you're saying from Daniels down to where Lost Grove would be, that that's all repaved? MR. JARVI: In the Lee County area. Rob -- COMMISSIONER EBERT: Okay. So from -- MR. JARVI: Within six months, I think. It's still a two -lane road, but shoulders were added and -- MR. PRICE: Again, for the record, Rob Price. They did --the state did just resurface the roadway and add paved shoulders from Gunnery Road all the way to the county line, the Lee County line. Before, the pavement was in disrepair and there were no shoulders at all. I believe once you get into Hendry County there's still an issue with shoulders and things of that nature, but it has been recently resurfaced. CHAIRMAN STRAIN: Okay. Thank you. COMMISSIONER EBERT: Thank you. CHAIRMAN STRAIN: Anything else, Diane? COMMISSIONER EBERT: No. CHAIRMAN STRAIN: Anybody else? (No response.) CHAIRMAN STRAIN: Thanks, Reed. MR. JARVI: You're welcome. CHAIRMAN STRAIN: Appreciate it. Okay. If nobody on the Planning Commission has any other questions, I'd like to move through the conditions that was -- go ahead, Phil. COMMISSIONER BROUGHAM: Could I ask Heidi a question for my benefit? This is a conditional use, Heidi, and a lot of our decision making is going to be centered around the word "compatibility." From a legal point of view and from the LDC point of view and so forth, can you speak from just a factual point of you view as to what compatibility is? And maybe you -- maybe that's an impossible question to answer, but it's center to the decision that -- to me it's a subjective -- CHAIRMAN STRAIN: That may be more of a planning question of planning staff than legal staff. But I'll leave it up to Heidi if she wants to dive into it. COMMISSIONER BROUGHAM: Or planning. MS. ASHTON- CICKO: I'll let the planning staff address it. I don't believe we have a definition of "compatible" in the LDC. CHAIRMAN STRAIN: Kay, did you hear the question of Phil? COMMISSIONER BROUGHAM: Yeah. And, Kay, I'm well aware of the staff report, okay, and I'm well aware of your finding. MS. DESELEM: Okay. I did hear the question. For the record, Kay Deselem. I've asked Ray to look it up so that he can get the exact definition either /or from the Growth Management Plan or the LDC, so we'll have exactly what it says rather than to rephrase it. CHAIRMAN STRAIN: You know, it's a shame Ray's got to do that. If you could put in a request for new Page 50 of 87 March 15, 2012 iPad 3's for all nine of us, we could take care of that ourselves. MS. DESELEM: Yeah, sure thing. COMMISSIONER BROUGHAM: The reason I'm asking is, I personally would just like it as a backdrop. CHAIRMAN STRAIN: No, I understand. A lot of us -- I mean, I've seen that definition many times in different documents, so -- MS. DESELEM: Chip Block was kind enough to hand me what he has downloaded from the definitions of the Land Development Code. CHAIRMAN STRAIN: Our Land Development Code or his? MS. DESELEM: Ours. CHAIRMAN STRAIN: Okay. Thank you. MS. DESELEM: I assume so. It says Collier County. Anyway, in here it does say -- provide the definition for compatibility, stating that compatibility is, quote, a condition in which land uses or conditions can co -exist in relative proximity to each other in a stable fashion over time such that no use or condition is unduly negatively impacted directly or indirectly by another use or condition. COMMISSIONER BROUGHAM: Okay, thank you. CHAIRMAN STRAIN: Okay. MS. ASHTON- CICKO: Do you want to put that on the visualizer for them so they can be reading it? MS. DESELEM: I figure they all just memorized that when I said it. COMMISSIONER BROUGHAM: That's good enough for me, Kay. MS. DESELEM: Got it? COMMISSIONER BROUGHAM: I didn't memorize it, but I understand it now. Thank you. CHAIRMAN STRAIN: Yeah, thank you. And then I have one question before -- I've just found one more in my notes of Don. I'm not even going to attempt your last name, Don. I'll get it wrong. You had said something during your presentation that sparked some interest in me in regards to your property being owned by the company that you work for for quite a long period of time, I think you said a hundred years, and that you even had contributed some of the lands for the CREW lands. Do you know if you contributed some of the lands that make up the CREW lands across Corkscrew Road from the current property we're questioning? MR. SCHROTENBOER: That is correct, Mark. I'm sorry, Don Schrotenboer, president of Alico Land Development. Yes. The land that was donated for CREW within the CREW on the south side of Corkscrew Road, I think it may have been during Tim Durham's testimony given one of the three previous days, I think it was early on, indicated a map that showed the locations of those properties that were donated to CREW. CHAIRMAN STRAIN: Okay. And at the -- I'm just thinking at the time you donated those, you didn't -- there was no requested changes by them or anybody through any other -- like, that donation didn't impact this property either positively or negatively in regards to the way it was donated? There wasn't any contractual agreement or anything like that that affected the surrounding properties that you still owned? MR. SCHROTENBOER: I guess I'm not understanding the -- effectuating the properties, Mark. CHAIRMAN STRAIN: Well, I mean, what would -- would you have given up the property that you gave to CREW lands if you knew that the fact that that was going to be used as a pristine, natural area would have negatively impacted your right to do -- to go forward with some uses you believe you had on the property you're now questioning today? See, if you anticipated that, I was just wondering if there's some kind of contractual arrangement. MR. SC1 MITT: No, no, no. Actually -- maybe I still don't understand the question, but maybe I can answer it this way. The chairman of our board, currently John Alexander, thought he recalled in the donation agreement to CREW that there was some language in there that the CREW could not object to anything that Alico had done in its surrounding property. That grew a concern of mine that that was possibly out there. We have checked that donation agreement, and there is no such agreement in there or any verbiage that CREW cannot oppose anything that Alico does going forward. Page 51 of 87 March 15, 2012 CHAIRMAN STRAIN: Okay. I was just curious. Thank you. JUDGE STARNES: Mr. Chairman? MR. SCHROTENBOER: Did that answer your question? CHAIRMAN STRAIN: Yes. JUDGE STARNES: Could you ask him -- CHAIRMAN STRAIN: No. Sir, come on. We can't do that. You wouldn't allow that in your courtroom either. So -- not from the audience. We will continue our questions like we have -- move forward here, get the relevance -- JUDGE STARNES: The land was sold. CHAIRMAN STRAIN: Does anybody have any other questions before we go into -- go ahead, Paul. COMMISSIONER MIDNEY: I thought that the land had been sold. Was it sold or donated? MR. SCHROTENBOER: Don Schrotenboer, president of Alico Land Development, for the record. Both. COMMISSIONER MIDNEY: Thank you, sir. CHAIRMAN STRAIN: Okay. And we have a list of conditions of approval that were submitted on February 23, 2012, with our most recent package from county staff. I wanted to walk through those so that everybody knew where this stands and each condition. Some of them may not warrant a lot of discussion, others might. Bruce, I don't know who from your team wants to get up here and follow along with us, but we need to start asking questions on a word -by -word basis with certain elements. So it would help if you guys were readily available. And just for the record, this is the discussion that I had with the applicant a couple days ago. I went over a lot of this with them. And on some issues that weren't resolved, they were going to be able to respond to them today, and others we'll just repeat them for the record. On No. 1, Bruce, I had suggested that -- in the second line, towards the end where it says the approval of this conditional use, if the BZA finds that the mine operator has violated or not, and the words "fully comply with all conditions," and I suggested dropping the words "fully" and "all." Is there any objection to that? MR. SCHROTENBOER: No. CHAIRMAN STRAIN: Okay. Number 2, the review of the conditional use approval will be brought back to the BZA after three years and then every five years thereafter. I requested every -- after the first year, once mining operations commence and then every three years thereafter. One of you -- is that -- are you going to -- is that acceptable or not? I'm going to need you to respond every time I ask a question. MR. ANDERSON: No, that's fine. You want us to do? CHAIRMAN STRAIN: After the first -- if this -- if you get approved and your mining operations commence, I don't mean overburden, I mean from the time, let's say, when the draglines get on the site so you're under full excavation, that from one year after that date you get rereviewed pursuant to Paragraph 2 and then every three years thereafter, instead of every five years. That reduces the time frames. MR. SCHROTENBOER: Mark, if I were to understand it, that would create more of a change than what's listed here than just of the dates. You've added in there -- because this says the conditional use approval or upon, and you just indicated about full operation with the dragline being operated. So what are you asking? CHAIRMAN STRAIN: Well, I was more concerned of what your full operation is going to have an as an impact versus just moving overburden. Once you've -- the big thing that is going to happen here is blasting draglines and rock crushers. You're not going to have any of that for your overburden. So if you're actually -- got the dragline in there, that means the worst part or the most intense part of your excavation is underway, and if you can sustain that for a year through another review, just a review to make sure you're in line with all these commitments, I think that would be a better time to recognize a problem than waiting three years. MR. SC14ROTENBOER: Given that explanation of being under full mining, yes, we can agree to the one and three years. Just not upon the approval of the conditional use permit as it states. CHAIRMAN STRAIN: No, I understand. Because it actually probably wouldn't do any good. You wouldn't have that much intensity, so it would be a worthless -- MR. SCHROTENBOER: I would anticipate in the next year there's little to no action out on the site, perhaps. CHAIRMAN STRAIN: I would agree. Page 52 of 87 March 15, 2012 Kay, staffs keeping track of these corrections? MS. DESELEM: Yes. And I wanted to offer one other suggestion for that same Condition No. 2. In Line 3 it talks about determine whether additional stipulations or mitigation are necessary, and I would ask that you add "or revised stipulations" such that if some of the existing stipulations needed to be changed, we would have the ability to do that, not just to add others. CHAIRMAN STRAIN: Does the applicant have any problem with that? It would read, Bruce, thereafter to determine whether additional stipulations, comma, revised stipulations, comma, or mitigation are necessary. MR. ANDERSON: That's fine, sir. Yes, sir. CHAIRMAN STRAIN: Number 3 talks about a commitment for loaded trucks. In front of the second line it says annually for ongoing maintenance of county roads. I would just like the word inserted "Collier County" roads. MS. ASHTON- CICKO: Can we also put the words, after annually, "to county." CHAIRMAN STRAIN: I'm sorry? MS. ASHTON- CICKO: Can we, after the word "annually," put "to county "? Can you not hear me? COMMISSIONER EBERT: It's better. MS. ASHTON- CICKO: Okay. After the word "annually," can you insert "to county" so the payment is made to the county? CHAIRMAN STRAIN: Yep. MS. ASHTON- CICKO: And then on the one before and throughout the document, if we're referring to development services, it just needs to be updated to the current term, growth management -- yeah, Growth Management Division. CHAIRMAN STRAIN: Are those acceptable, Bruce? MR. ANDERSON: Yes, sir. CHAIRMAN STRAIN: Okay. Next one would be 5, stormwater runoff quality. Instead of the word "should," it shall be -- suggesting to add the word "shall," shall not be adversely affected by the excavation area. Is that okay? MR. ANDERSON: Yes, sir. CHAIRMAN STRAIN: Then we get into No. 6, which is one, two, three pages long. The part that I found concerning is that you list the 60 -foot stockpile on Page 2 under the west property line of the Lake No. 1, but then for the rest of the descriptions of the excavations of the other areas I can't find it again. MR. ANDERSON: We'll put that in. CHAIRMAN STRAIN: Okay. So you're going to add the 60 -foot reference for the over -- for that stockpile to every one of those sections? MR. ANDERSON: Yes, sir. CHAIRMAN STRAIN: Okay. Number 7, you say your mining operations and blasting shall be conducted in compliance with the laws of the State of Florida, Collier County Government, and the federal government, and I wanted to add the verbiage -- and, Heidi, this is probably one you need to weigh in on -- except as noted herein, which are considered more restrictive. I believe we have the right to increase restrictive requirements. We can't lessen what the feds or the state say. But I would like to be assured by No. 7 that we can. And do you see any problem with that, Heidi? MS. ASHTON- CICKO: Well, ordinarily, you can't regulate blasting; however, in this case, these stipulations are being proposed by the applicant. They're offering them by the applicant. So I would say in this case we can do it. CHAIRMAN STRAIN: Bruce, do you have any objection to that language being added in No. 7? COMMISSIONER EBERT: Can you restate that, please, Heidi. CHAIRMAN STRAIN: Well, I'm the one. COMMISSIONER EBERT: Can you restate it then? CHAIRMAN STRAIN: Sure. The sentence would end up, when you add the following words, except as noted herein, which are considered more restricted, that way anything we have in here that -- if this were to pass, is more restrictive, then the applicant has to abide by that. It's over and beyond state and federal guidelines. COMMISSIONER EBERT: Okay. CHAIRMAN STRAIN: Bruce, does that work? MR. ANDERSON: Yes. If we could just make clear that it's those proposed by the applicant. Page 53 of 87 March 15, 2012 CHAIRMAN STRAIN: Well, then we'll just keep asking. And if you decide -- if you decline, then we'll have to take that into consideration. So if you're not going to propose it -- I mean -- MR. ANDERSON: Okay. CHAIRMAN STRAIN: -- if we get into something that's -- if you have a reasonable response that doesn't make sense to the -- what I'm suggesting, I think I need to hear it. If the rest of us agree, then we're there. MR. ANDERSON: Okay. That's fine. Just didn't know what we were getting into for sure. CHAIRMAN STRAIN: Number 9, the allowable depth of excavation, and you have a one foot above the confining layer. And I -- based on testimony in the first hearing where the teeth of your machine is at least 12 inches long, I would suggest -- I'm asking for 2 feet. That gives us a 1 -foot buffer. Do you have any problem with that? MR. ANDERSON: Agreed. COMMISSIONER SCHIFFER: Mark, a question. CHAIRMAN STRAIN: Yes, sir. COMMISSIONER SCHIFFER: Does that mean the lakes can only be excavated to 95 feet? CHAIRMAN STRAIN: That's correct. COMMISSIONER SCHIFFER: All of the lakes? CHAIRMAN STRAIN: All of the lakes. Number 12 -- COMMISSIONER SCHIFFER: I thought -- MR. SCHROTENBOER: Can I just respond to Brad's comment. There are fragments -- I think it's only in one section of No. 3. As you move further to the north, they get shallower. So the 95 is the maximum depth only in one portion of one lake. That's why we're asking for it. That's not consistent across the whole site. COMMISSIONER SCHIFFER: The way -- MR. SCHROTENBOER: When you get to the north side of the site, the depths of the rock are at a 40 to 45 feet depth. CHAIRMAN STRAIN: What he's saying is, though, they'll never exceed 95 anywhere on the site. MR. SCHROTENBOER: That's correct. CHAIRMAN STRAIN: That's what I thought your question was. COMMISSIONER SCHIFFER: And I thought we were going to 140. CHAIRMAN STRAIN: Not anymore. COMMISSIONER SCHIFFER: Okay. I thought only Lake 3 was cut to 95. You're saying all the lakes have been cut? MR. SCHROTENBOER: Yes. COMMISSIONER SCHIFFER: That's because of the geometry of the lake, or is that a concern over the confinement? MR. SCHROTENBOER: Just so I'm clear, I mean, we're not going to exceed 95 foot in depth across the entire site in any of the lakes, okay. The way Mother Nature has placed the rock, it is much deeper on the south end of the site than it is on the north site. There's almost a -- roughly a 45 -foot difference between the north side of the site to the south side of the site of how the rock runs in there. COMMISSIONER SCHIFFER: Okay. All right. Thanks. CHAIRMAN STRAIN: Okay. No. 12? COMMISSIONER SCHIFFER: I have a 10 question. CHAIRMAN STRAIN: Go ahead, sir. COMMISSIONER SCHIFFER: Bruce, just to how you're going to cut that lake, it looked like, from some of the visuals, that Lake No. 1 -- at one time we were talking about starting up in that northwest corner and coming down the whole thing and, essentially, start to break the rock from the residential and then go back up. This -- and I thought from one of the visuals, it looks like you're going to start in that northwest corner and head east and, I guess, come back west and then head east and then head west? MR. SCHROTENBOER: I'm looking for the map I can put up on the teleprompter. Thank you. As always, somebody's always ahead of me. Let me try to explain this to you real quickly. In Lake No. 1, what our intentions are to do, if you can see my Page 54 of 87 March 15, 2012 -- is there's called an initial key cut, and our intentions are to do that initial key cut in this general area of the lake. Then what we will do is -- from that key cut is we will move to the west and then down to this location and then do succession cuts from north to south as we move across the rest of this site. COMMISSIONER SCHIFFER: Okay. I'm good. Thank you. CHAIRMAN STRAIN: Okay. Number 12, your -- the way you have this worded, you're limited to a maximum of 700 loaded aggregate truck trips per day, and I really think it should be 700 exiting trips per day. MR. ANDERSON: Well, we don't want to count an empty truck. CHAIRMAN STRAIN: Then don't send one out without filling it. What good would it be doing you? How often are you going to send an empty truck out of a mine? MR. SCHROTENBOER: Well, I would agree, rarely, but you don't know. It could be a situation of weather conditions where there's not enough rock supply to send out on that truck and that truck's been waiting there. We may have hit our limit of 700 trucks and another truck can't leave with a load. We don't want to count pickups that might be service oriented, water trucks that are coming in and out to keep the dust down. There are various other types. So that's why we would prefer to keep it as worded, or something similar. CHAIRMAN STRAIN: Well, the word "loaded" concerns me. A truck takes 18 or 20 cubic yards. When you guys put in six cubic yards, that's not a loaded truck. What is a truck? MR. SCHROTENBOER: You could put either loaded or partially loaded aggregate truck. CHAIRMAN STRAIN: Well, then we get into aggregate truck. What if it's for supplies, which -- is everything going out of your facility going to be aggregate trucks? Are you going to have any other mixtures, or are you going to combine silicas with anything? Are you going to do anything else? MR. SCHROTENBOER: I think that's a valid point. Obviously, at some point, the overburden may be sold off, if possible, for fill. CHAIRMAN STRAIN: How about just loaded truck? MR. SCHROTENBOER: Agree. CHAIRMAN STRAIN: Next one is No. 22. This one came up in discussions, and it's about the lighting. My -- the reason I highlighted it is because -- you're not going to do any nighttime work. I think that's been acknowledged. Because you're six to six, so there's no nighttime work allowed. So what is light -- what is the lighting you're trying -- you're seeking here? MR. SCHROTENBOER: I think what we're addressing here is for safety and security measures and any possibility of repairs that might take place on the equipment, that lighting is needed after 6 o'clock. CHAIRMAN STRAIN: Okay. Then we need to add that the lighting that will be allowed after the working hours will be for safety, security, or emergency repair. MR. SC14ROTENBOER: Agreed. CHAIRMAN STRAIN: Okay. COMMISSIONER SCHIFFER: Mark, let me -- CHAIRMAN STRAIN: Go ahead. COMMISSIONER SCHIFFER: -- chime in. So that means there will be no lighting on any of the cranes? Because one light you forgot is the drill. The tallest piece of equipment is probably the drill, correct? MR. SCHROTENBOER: I think the tallest piece is the dragline. COMMISSIONER SCHIFFER: But, anyway, is there a way we can keep all lights on those things -- I mean, 25 feet would be fine with me because that's your berm height, but -- just so that the neighbors aren't looking at light fixtures. I don't know if the FAA has a requirement for height. MR. SCHROTENBOER: Yeah, that's what I was just going to mention is the FAA. I don't -- you know, I don't think we're into those kind of heights for required lighting on these things. But perhaps I can look down the hall here and look at Dennis Rosa real quick. CHAIRMAN STRAIN: See, under the safety criteria -- MR. SCHROTENBOER: Yeah, I don't think there's any issue there. Yeah, unless that falls under the safety criteria, and -- CHAIRMAN STRAIN: Safety, you couldn't put it up. I mean, if you wanted to put a light on the top of a dragline, unless you had a safety or security reasons to do that -- MR. SCHROTENBOER: That's correct. Page 55 of 87 March 15, 2012 CHAIRMAN STRAIN: -- I mean, nobody's going to climb on top of a dragline. And safety -wise, if it's not required by FAA, you wouldn't need it. So I don't think you could justify it. MR. SCHROTENBOER: That's correct. We're not going to justify it. COMMISSIONER SCHIFFER: But security, if somebody meddled with it, they could say, we need a light on the top of the crane to look down on it. So can't they just -- we just limit the height to 25 feet? MR. SCHROTENBOER: I'm sorry, Mark. I'm having a hard time hearing. COMMISSIONER SCHIFFER: Could you limit the lights to 25 feet? MR. SCHROTENBOER: I think they're limited to 20 feet, if I read this correctly. COMMISSIONER SCHIFFER: Yeah, those I think are your roadway lights and stuff, right? But 20 would be fine. MR. SCHROTENBOER: Yeah, 20's fine, across whole site, 20 feet. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: Okay. MR. SCHROTENBOER: Or no more than 20 feet. CHAIRMAN STRAIN: Number 29, it's a question I have -- I'm sorry, Bill? COMMISSIONER VONIER: I've got one on 25. CHAIRMAN STRAIN: Go ahead, sir. COMMISSIONER VONIER: All access to mining operations, and then you describe that. You do have an access road from Corkscrew that's used for small traffic, pickup trucks and the like, and I assume that will remain? People use it to access the maintenance area and so forth; is that true? MR. SCHROTENBOER: That is correct. And that's currently the haul road for the citrus operation as well. A significant portion, if not all the haul for citrus comes out of that road, and that would remain as well. The access to 82 is all pertaining to the mine, nothing to do with the ongoing agricultural operations. COMMISSIONER VONIER: Okay. MR. SCHROTENBOER: Thank you. CHAIRMAN STRAIN: Okay. Number 29, it's more a question of our staff just to make sure the last sentence of that No. 29 is worded correctly. This transportation condition shall not require site - related inspections by the county inspection staff. MR. PODCZERWINSKY: John Podczerwinsky, transportation planning. Yes, sir, that's just a cue for our inspection staff so that they don't keep it as a requirement that would hold up any further development on this property. CHAIRMAN STRAIN: Okay. Just wanted to make sure you're fine with it. MR. PODCZERWINSKY: Yes, sir. I also need to point out one real quick correction on 28, while I have an opportunity to do so, the one right above this. It refers to the term "SDP permitting" at about the middle of the paragraph. CHAIRMAN STRAIN: Right. MR. PODCZERWINSKY: I need to change that to better read the words "excavation permit," because there may not be an SDP at this site. CHAIRMAN STRAIN: Well, what about their operation center; wouldn't they need an SDP for that? MR. PODCZERWINSKY: I'm not 100 percent clear. CHAIRMAN STRAIN: Okay. How about SDP or excavation? MR. PODCZERWINSKY: Yes, sir, that would be fine. CHAIRMAN STRAIN: Is there any problem with that, Bruce or Don? MR. SC1 ROTENBOER: Well, I think it's in there because, you know, as part of this application, in addition to the CU is also the excavation permit. So if you were to make a recommendation for approval, as I understood it, it would be for the CU and also the excavation permit, and then go to the BOCC. So if the BOCC endears itself to approve this in the future, that would indicate at that immediate time, based on your current change, that we would have to then change that over from 82 at that given point. I think we would prefer to keep it to SDP. CHAIRMAN STRAIN: I'm reading it. MR. PODCZERWINSKY: My intention is strictly to make sure that when you guys are running trucks on Page 56 of 87 March 15, 2012 the site that we have a trigger at that point to require your turn lanes to go in to serve those trucks. MR. SCHROTENBOER: If that's the clarification, I'm absolutely fine with it. CHAIRMAN STRAIN: What is the clarification, John? MR. PODCZERWINSKY: Is that when we start experiencing truck traffic at the site that the turn lanes are installed, I guess. CHAIRMAN STRAIN: Well, experiencing truck traffic at the site could be one pickup truck. So we've got to get down to whatever -- MR. PODCZERWINSKY: Aggregate haul truck traffic. CHAIRMAN STRAIN: Haul truck traffic. One haul truck? Because they could bring in lime rock that's not -- because they don't have it available on site, put their pads on. So you're got to -- MR. PODCZERWINSKY: I'm going to defer to the applicant to hopefully define at a better point when your operations will commence with those turn lanes. We could use the term "when warrants are met for FDOT standards." And FDOT does have listed standards for their turn lane warrants. CHAIRMAN STRAIN: Or when warrants are met -- SDP permitting or when warrants are met? MR. PODCZERWINSKY: Yes, sir. CHAIRMAN STRAIN: Okay. And Number 30. MS. DESELEM: Excuse me. CHAIRMAN STRAIN: Yes, ma'am. MS. DESELEM: For the record, Kay Deselem. Just want to make it clear on the record that we are not reviewing an excavation permit. To my knowledge -- CHAIRMAN STRAIN: I'm glad you brought that up. MS. DESELEM: -- that has not been submitted. CHAIRMAN STRAIN: Yeah. I was going to ask you about that. How is that done -- why is it -- Bruce, maybe you can tell me, why is this being -- how have you visioned this to be simultaneous? MR. ANDERSON: Excavation permit was reviewed by the EAC. They do -- the LDC does provide for them to review it. For whatever reason, it doesn't come to the Planning Commission. CHAIRMAN STRAIN: Good point. Thank you. You're right. I recall that now. That's one of the idiosyncrasies of our code which makes no sense, but thank you. MR. ANDERSON: Could I just ask one clarification -- CHAIRMAN STRAIN: Sure. MR. ANDERSON: -- on Stipulation 22? CHAIRMAN STRAIN: Go ahead. MR. ANDERSON: I wanted to make sure that it was security, safety, and repair. CHAIRMAN STRAIN: Yes. MR. ANDERSON: Okay. CHAIRMAN STRAIN: Well, I said it was emergency repair. That's what it was termed when you said it. MR. ANDERSON: That's fine. Ms. Deselem didn't have that, and I wanted to make sure that got cleared up. CHAIRMAN STRAIN: That's the three that I -- MR. ANDERSON: Thank you. CHAIRMAN STRAIN: Number 30, I would like the reference "date" added to the project entitled, you know, "Lost Grove Mine prepared by Stantec," so whatever date the document that finally is used for the site plan is inserted in No. 30. MR. SCHROTENBOER: Yep. MR. ANDERSON: Yes. CHAIRMAN STRAIN: Number 38. Anybody have any questions through 38? (No response.) CHAIRMAN STRAIN: On No. 38 on Page 8, the second line, is to have a minimum of four constructed walls. Why don't we just leave it four walls. We don't want any debate on what's constructed and what isn't. MR. SC1 ROTENBOER: Agreed. MS. ASHTON- CICKO: Mr. Chair? CHAIRMAN STRAIN: Yes, ma'am. Page 57 of 87 March 15, 2012 MS. ASHTON- CICKO: Before No. 34 or after the title "blasting conditions and limitations," could we insert "of the following are proposed and offered by the applicant "? CHAIRMAN STRAIN: Sure, if that's okay with the applicant. MR. SCHROTENBOER: Yes. CHAIRMAN STRAIN: Just see a nod of the head. COMMISSIONER EBERT: Don't we all -- are we going to be out there also, Heidi, when they -- each time they blast? Are we going to have someone out there? MS. ASHTON- CICKO: The fire marshal will have somebody out there, and I don't know whether those rules include the county. CHAIRMAN STRAIN: They've got to have somebody out there. I got a call every time I blasted. COMMISSIONER EBERT: I just want to make sure that --from our county. MR. SCHROTENBOER: I would --staff might be able to respond to it. If you look at proposed Condition No. 47 -- COMMISSIONER EBERT: I was looking at 34, but -- I know it's regulated by the state, but I thought somebody from the county was also going to be there each time. MR. ANDERSON: They are. That's standard practice for excavations here, yes. And I -- we can make it clearer, perhaps, if need be, under 47. COMMISSIONER EBERT: Okay. CHAIRMAN STRAIN: Maybe we could say, "county shall monitor on site." COMMISSIONER EBERT: (Nods head.) CHAIRMAN STRAIN: Yeah, that works. Okay. Well, let's move on then. We're on -- let's see. I'm trying to see where my next markups are. Number 42. The only thing I'd like to reference here is the location that you described the key cut. Do you have any problem with that? For, like, No. 1, that's the only concern. MR. SCHROTENBOER: That is correct. As I illustrated here. If that's your understanding, we agree to that. CHAIRMAN STRAIN: Number 44 is redundant, but if -- I don't know. If you guys want to keep it in for redundancy, that's fine. COMMISSIONER SCHIFFER: Mark? CHAIRMAN STRAIN: Go ahead, Brad. MR. SCHROTENBOER: Mr. Anderson's trying to set a record of number of conditions, so we'd like to keep it in, please. CHAIRMAN STRAIN: Well, I'm going to be adding some more. Go ahead, Brad. COMMISSIONER SCHIFFER: On 43 I have a question. You're referencing a condition where holes could be loaded and you have to shoot them outside those hours. What happens there? How does that happen? You can't leave a hole loaded overnight or something? In parentheses, blast. MR. SCHROTENBOER: I might ask Jeff Straw to come up, but I believe there are conditions where situations do happen where they load a hole, and then weather conditions prohibit it, and there's a situation there it creates. MR. STRAW: For the record, Jeff Straw with GeoSonics. The state fire marshal controls how that works. If weather would move in, if it's still able to be blasted before -- during daylight hours, the state fire marshal will grant approval to do so. They don't want to, what we call, sleep a shot overnight if they don't have to. If it gets to the point, for safety, it's darkness, there's still a lot of rain, lightning, something like that, they will make them wait till the next day. At that point the blaster is required to remain on site guarding the shot all night. All the delays are disconnected. But somebody is there from the blasting contractor, and a licensed blaster has to stay on the shot all night. So it's not just walked away from. It is something that's there. That would be the only issue for, you know, shooting something after those hours, but it is done with approval of the state fire marshal. COMMISSIONER SCHIFFER: Okay. And the latest they could shoot, I mean, you mentioned daylight. I Page 58 of 87 March 15, 2012 mean, it's not like, all of a sudden, 10 o'clock and they fire that hole. MR. STRAW: No, no. They're not going to do that. They will go till, you know, dark. Whatever -- whatever the sunrise /sunset is, they will -- you know, if it ends up being 6 o'clock, if it's a safety issue for them, they will do it. Most of the time they will wait and make them sleep it overnight. But they try not to do that. I mean, we have nine to four, and the thunderstorm clears out at 4:05 and it's safe, they will say you have to blast, because the state hours are till 5 o'clock. That's typically the day -to -day procedure. But there would also be a notification of the county -- COMMISSIONER SCHIFFER: Okay. MR. STRAW: -- at that point. COMMISSIONER SCHIFFER: But I just wouldn't want it to go off at midnight or something. MR. STRAW: No, no, no. That's -- there's no licensed blaster that will ever do that for their own safety, let alone anything else. COMMISSIONER SCHIFFER: Thank you. MR. STRAW: Thank you. CHAIRMAN STRAIN: Okay. We've still got several pages to go over to finish this up, like, I think there's two to three pages left. Why don't we take a break for the court reporter right now. We'll come back at 2:40 and resume the same line. Thank you. (A brief recess was had.) COMMISSIONER KLEIN: Okay. Welcome back, everybody. We left off Page 9 of the 50 or 60 stipulations. We'll just continue from there. Actually, we're going to probably go to the next page. COMMISSIONER SCHIFFER: Mark -- MR. ANDERSON: Excuse me. CHAIRMAN STRAIN: Go ahead, Brad. COMMISSIONER SCHIFFER: I have a 44 question. It says they can blast eight days per month. Do we want to space that, or can they blast eight days in a row or 18, 12 overture or something? COMMISSIONER EBERT: Your mike -- COMMISSIONER SCHIFFER: My mike isn't working? COMMISSIONER EBERT: There you go. CHAIRMAN STRAIN: All the mikes are not as sensitive today as they usually are. COMMISSIONER SCHIFFER: My mouth probably doesn't work. MR. ANDERSON: This is the same language that's in the Jones mine. I mean, the flexibility is needed depending on weather conditions actually. CHAIRMAN STRAIN: You aren't -- your mike's not working again. There we go. I heard that. MR. ANDERSON: They're trying to silence us. CHAIRMAN STRAIN: Okay. Brad, do you -- do you want to -- COMMISSIONER SCHIFFER: I mean, how many times a day would you blast? I mean, is it set up where you're only going to blast once a day, and so you'd have multiple blasts? MR. STRAW: There is one drill pattern typically per day. It's very unlikely that they will drill two patterns. COMMISSIONER SCHIFFER: Okay. MR. STRAW: Normally they are not shooting back to back. But as Bruce indicated, because of the weather conditions, you could have a day where they have two things planned -- you know, two blasts planned in a week, then you have rain on Monday, Tuesday, Wednesday, with thunder and lightning, so they would delay those and shoot those maybe Thursday, you know, and another Friday. You know, right now most people are blasting anywhere between once and twice a week, and the -- blast, and then you have to come back next to that area and blast -- you know, and you start drilling again. So you can't drill right next to the blast you just -- you know, you already have loaded because it will damage those blast holes. So, typically, the day and at least a day in between. COMMISSIONER SCHIFFER: Okay. MR. STRAW: But it's that flexibility that we need. I mean, eight times per month is not a lot -- COMMISSIONER SCHIFFER: Okay. Page 59 of 87 March 15, 2012 MR. STRAW: -- in terms of that. MR. ANDERSON: Mr. Chairman? CHAIRMAN STRAIN: Yes, sir. MR. ANDERSON: During the break the county engineer and I spoke about Condition No. 47, because there was a concern about the county just not showing up after being given notice for a blast, and -- MR. McKENNA: Hi. For the record, Jack McKenna, your county engineer. What we discussed here was the code, not specifically for mining but for land development excavation and so forth, for blasting requires 24 -hour notice, and we'd recommend having that same 24 -hour notice apply here to the mining and have it crafted such that we are notified. If we respond back and say, no, you don't blast tomorrow, then they would be held up. But, typically, that won't be the case. We would have an inspector out there, or we'd not have the inspector out there but they'd be able to proceed with the blast. CHAIRMAN STRAIN: Well, the way it's written probably provides a stronger ability for the county to say no than anything else. The way it's written it says, the county shall monitor on site the conditional use of blasting, and a charge will be applied to cover the fees. So if you're not there, for whatever reason, if they didn't give you enough notice or you're too busy that day or you got sick, if nobody else shows up, they don't blast, and that's the way I read this. Bruce, do you see it differently? MR. ANDERSON: That's why we raised it. That's why we raised the concern, because we heard earlier if the blast holes are loaded, you don't want to leave them. CHAIRMAN STRAIN: Yeah, but would you load them before you scheduled it with the county? I mean, so you're going to go out and run all these holes not knowing if anybody can come out and see them and then -- MR. STRAW: The way the line is written right now, it doesn't tell you when you have to notice. What we -- what Jack and, you know, Bruce and I discussed is that -- add to that that the county shall have 24 -hour notice. It's very similar with your construction blasting ordinance, that you provide a 24 -hour notice to the appropriate agency, and whether that's Jack's department or whomever gets that notice, then they say, okay, gee, we're on schedule, we'll have somebody there, we're fine, or if they say I've got five inspectors out and we have three other inspections, we can't be there, the blaster at least knows not to go out that next morning and start loading the holes. If these guys start at 6 o'clock in the morning, if we would -- if they would call Jack's office at 8, they could have a series of holes loaded, then we're in a catch -22 position with the state fire marshal saying you must blast and the county saying, gee, I don't have anybody there. So that's the reason for the 24 hours. CHAIRMAN STRAIN: Okay. So the county shall monitor on -site conditional use of blasting, talks about the charge. Any blasting will provide a 24 -hour notice. Does that work then, Jack? MR. McKENNA: Yes. CHAIRMAN STRAIN: Thank you. Let's see. Number 51, ground vibration levels and/or air overpressure levels shall reach 80 percent of the -- and then it says, State of Florida statutory limits. Why not -- well, since you have various limits written throughout this document, why wouldn't we have the agreed -to limits will operate -- so that we're not -- MR. STRAW: The reason for the 80 percent rule is at one of the meetings, whether it was the last one or the one before, somebody asked about, what happens if you get close to the limits, what do you do? And that was put in there in that -- the limits that -- you know, the conditions that are in there are monthly average limits. The state fire marshal's limits are an absolute. So what we did was work backwards from those absolute numbers saying that if they got within 80 percent, it works as a caution level for the operator. It makes the operator mandatorily stop, review the vibration, the air blast levels, to make sure that they're not going to exceed. CHAIRMAN STRAIN: What's the maximum per -inch second -peak particle velocity allowed by the state. MR. STRAW: Lowest -- low frequency, .75, as I explained on that chart three or four meetings ago, but it goes from .75 all the way up to 2. CHAIRMAN STRAIN: Okay. But you're limiting yourself to .50, right? MR. STRAW: The monthly average, yes. CHAIRMAN STRAIN: Right. So wouldn't we want to say that it's 80 percent of that in lieu of, what, .75? MR. STRAW: 80 percent of the monthly average. If you shoot .02, .02, .02, .02, your average is really low; there's not any review that you need to make. Page 60 of 87 March 15, 2012 My concern is when I -- and I put this language in there. The 80 percent rule is taken from your construction, you know, blasting ordinance just as notification as well -- and that comes from way back, from Broward County's ordinance and regulations. That's why we use the state standards. Those are defined numbers. The average -- monthly average is going to be kind of a moving target. CHAIRMAN STRAIN: Eighty percent of .75 is 15 -- so that would be 70, I mean 60. So based on the fact you've got to have a monthly average of .50, how would you ever hit 60? I mean, so -- you give us that -- MR. STRAW: You might get .60, you might get .6 on the one shot, and then the blaster realizes what's going on. You have to look at that for the average. That's where -- we do this right now, you know, for our clients that have this type of limit. I mean, the state's an absolute. It gets within 80 percent, we let our clients know, look, you guys are within 80 percent. You need to talk with your blasters and make some changes in what's going on so that you don't go over. It provides just a safety margin for that. CHAIRMAN STRAIN: Okay. For every eight days that you blast, eight days per month, your average will not be over .50, but you have to re- evaluate if you're 80 percent of the state levels? MR. STRAW: That's correct. It's just a twofold safety aspect of it. That's the reason it's in there. CHAIRMAN STRAIN: Okay. No. 54, third line down, the engineer should be unbiased towards all parties, and instead of "and hired before," I just want to make sure it's "and shall be hired before blasting operations commence." Do you have any problem with that? MR. SCHROTENBOER: No problem; accept it. CHAIRMAN STRAIN: Okay. There's five additional things I heard come up or that were discussed off and on and maybe needed to be suggested. The electric dragline. Will you make a commitment to use electric draglines? MR. SCHROTENBOER: Yes, we've made that commitment. CHAIRMAN STRAIN: Do you have any concern, on your exit on 82, putting a sign up in both English and Spanish instructing your drivers not to use Corkscrew Road? Even though 10 percent or less are going to, do you have any problem putting that signage up? MR. ANDERSON: A sign to discourage them, yes. CHAIRMAN STRAIN: Well, yeah, you can't -- you're not going to be able to go out there in a squad car and pull them down. I just want to make sure that you do everything possible to avoid Corkscrew Road. That's one reason the exit was eliminated. MR. ANDERSON: Yes. CHAIRMAN STRAIN: Okay. The four conditions of your letter dated April -- or February 23, 2012, would be incorporated if they haven't already been, but that all is incorporated. The 12 -foot berms in the site plan will be built concurrently with the initial mining for the entire area at the time you do the overburden, and 25 -foot berms will be done prior to the dragline being used, and they'll be done with overburden. Is that -- I think we talked about that, and that's the outcome of that discussion; is that agreeable? MR. SCHROTENBOER: It's certainly agreeable in regards to the 12 -foot perimeter berm. The issue of the 25 -foot berm prior to the -- CHAIRMAN STRAIN: Dragline. MR. SCHROTENBOER: -- dragline, that I'm not sure, Mark. Hold on. CHAIRMAN STRAIN: Okay. Because the way I saw it on our plan, it was done with overburden. So my assumption was you wouldn't need a dragline for that. MR. SCHROTENBOER: Well, I think they may be pulling it off with the dragline, but let me get that clarified. CHAIRMAN STRAIN: Okay. MR. ROSA: That's what we're doing. We're taking the dragline and putting the berm up with it. In order to get something 25 feet high, you could do it a lot faster with a dragline. CHAIRMAN STRAIN: Okay. So you're not going to -- but okay. Then you're not going to have your deep cut done at the time you're going to put your overburden up, right? MR. ROSA: That's correct. CHAIRMAN STRAIN: Okay. So that could be limited to prior to any deep cut being instigated or instituted. MR. ROSA: That's acceptable. Page 61 of 87 March 15, 2012 CHAIRMAN STRAIN: Okay. Does anybody else have any questions, concerns, or comments? I'm trying to see if we've got everything before we go into anything else. I believe that's most of the ones I had written down. COMMISSIONER VONIER: Mark? CHAIRMAN STRAIN: Yes, sir, Bill. COMMISSIONER VONIER: Does that make 57? CHAIRMAN STRAIN: Oh, I -- it's above 50 -- yes, something -- well, it's hard to say. They have 54, -5, -6, -7, 58 or -9 depending if you count the berms as separate issues. COMMISSIONER VONIER: Oh, okay. CHAIRMAN STRAIN: Anybody else? Heidi, did you have one correction you needed somewhere in that packet? MS. ASHTON- CICKO: Just under No. 34 at the end, the same phrase that you added on another paragraph, which is "except as noted herein," which are more restrictive, and that relates to the blasting operations for Lost Grove Mine under the Florida statutes. CHAIRMAN STRAIN: Does the applicant have any problems? That's the same language used elsewhere. Can you just jump to the mike and someone acknowledge it. MR. ANDERSON: No, sir. CHAIRMAN STRAIN: Thank you, okay. Anything else from anybody? COMMISSIONER EBERT: Yes. CHAIRMAN STRAIN: Go ahead, Diane. COMMISSIONER EBERT: I have a question. Agricultural, you have trucks for ag that you're taking out of there also? MR. SCHROTENBOER: Absolutely. We do today. COMMISSIONER EBERT: Okay. No, no. That's not a problem. MR. SCHROTENBOER: Harvesting. COMMISSIONER EBERT: I'm just trying to figure out something here. How long do you plan on harvesting -- I believe is it oranges in here that -- MR. SC14ROTENBOER: It is Valencias and Hamlins, yes. COMMISSIONER EBERT: Okay. And how long do you anticipate that that will go on along with this -- the mining? MR. SCHROTENBOER: Well, a couple things in regards to that. Our desire, as long as possible. Keep in mind a couple things. One, as I spoke to earlier, we're up against competition, we're up against diseases, we're up against trying to maintain our water supply as well as climate. So all of those have factors long term into the industry. Assuming that none of that affects this particular grove, our desire is to maintain the grove as long as possible, and we'll only eliminate the grove operation in the sections of the area that we're mining in at the time. So even to the point of possibly, let's say, Lake No. 1 -- Ray, could you throw that back to that site plan backup one more time. Thank you. Two things I just want to point out. Even in regards to Lake No. 1, even though we may be mining over on the far west side for that first cut, we may still be trying to maintain the grove to the east of that. So our goal is to try to maintain as much of the grove as long as we possibly can. My other point is, keep in mind that this is only one part of our entire section of land that Alico owns. This is about six -- I think the CU permit is somewhere around 1,600 acres give or take. Our entire property there is 4,600 acres, and the rest of it is a grove. There's no anticipation that anything is going to be impacted in there only because of weather or diseases that I've already talked about. COMMISSIONER EBERT: Okay. Don, can you tell me, it's seasonal, I believe, with the oranges. So what months does this run through? MR. SCHROTENBOER: I'm not really quite an agriculturalist, but I believe harvesting season starts -- it's over the winter months, let's just put it that way. We are concluding harvesting for the most part now -- between now and Mother's Day. COMMISSIONER EBERT: Okay. MR. SCHROTENBOER: Typically you want to get all your fruit off before Mother's Day. It starts Page 62 of 87 March 15, 2012 somewhere, give or take, around Thanksgiving. COMMISSIONER EBERT: Okay, fine. How many trucks do you have departing, just approximately? MR. SCHROTENBOER: I don't know. I don't even know. I'm sorry. I don't even know what departs there today. COMMISSIONER EBERT: Okay. So I guess I'm going to ask you, because I've heard of this orange and this agricultural, those trucks, though, can go out onto Corkscrew Road, is what you're saying? MR. SCHROTENBOER: The agricultural service and haul trucks currently exit out onto Corkscrew Road today, that is correct. COMMISSIONER EBERT: Okay. But you don't know how many are doing this daily then? MR. SCHROTENBOER: I'm sorry. I do not have that figure. I probably could try to text message our grove manager and get an estimate while I'm sitting here. But you recall when we went on the site tour, Diane; we came in that main dirt road. That's the haul road that exits out onto Corkscrew Road. COMMISSIONER EBERT: Okay. I was just --there's two operations going to be continuing then for this site? MR. SCHROTENBOER: Yes, that's correct. COMMISSIONER EBERT: Okay. Thank you. COMMISSIONER SCHIFFER: Mark, one thing. CHAIRMAN STRAIN: Brad? COMMISSIONER SCHIFFER: Yeah, one thing. One of the virtues of this could be 30 years or so down the road it's a great recreational site. Is there anything we should be thinking about today, or is that the something they'll deal with 30 years from now? CHAIRMAN STRAIN: Well, I'm not sure we have any precedent or reason that we can deal with it today. So I mean, it's their property. I'm not -- it's a conditional use permit for a mine. They could turn it into a Heritage Bay like Mule Pin Quarry did or something like that, then we would deal with it. COMMISSIONER SCHIFFER: I think one thing we've done, the -- getting the buffers larger and larger and larger makes it easier to develop in the future for different kinds of uses. Could be residential, could be a park. I guess we've done it. CHAIRMAN STRAIN: Anybody else have any comments? I have one. Ray, would you put that overhead up that I gave you. I have been trying to figure out a solution to the majority of the neighbors that have residences around this property, and they lie mostly to the south of Lakes 1 and 2, and also CREW Trust which lies across the Corkscrew Road. The fact that the applicant voluntarily reduced Lake Area 3 is good. That happens -- I think he said was going to be the deepest lake because that's where the rock was deepest. But, you know, it's -- that is the area that is most concentrated with residential people in that area and closest to the CREW. If the mining CU was restricted to the area above that red line I drew on there and Lake 3 was eliminated at this point, then if they decide later on that Lake 3 is still needed after they finish those other two lakes, which are larger and will go on for many more years -- I think Lake 3 is the last one -- and the last time we spoke I think it was indicated it could be 30 years down the road -- they would have plenty of time to come in and justify Lake 3 both by their actions on this site, being good neighbors or bad, and then public weighing in at that time. So my concern is the elimination -- I would like to see Lake 3 eliminated from this conditional use. I think it would be much more compatible, especially since that area is the closest area to residential, existing homes, and many of the people that spoke here today, as well as CREW. So I will be looking for a motion that would incorporate such an action. If not, then I certainly have a problem supporting it at this point. So that's the last I have to say in the matter unless something else comes up. Does anybody else wish any other comments? Don? MR. SCHROTENBOER: May I address your last comment? CHAIRMAN STRAIN: Absolutely, sir. MR. SCHROTENBOER: I think in my concluding remarks I made a comment about no more meat on the bone or it was no more juice in the orange. A number of things. This operation is just not a happen- overnight operation. The initial investment into this operation is in excess of $35 million just for the equipment. Over the Page 63 of 87 March 15, 2012 period of time, that equipment's going to have to be replaced and repaired and continued capital. There has to be some assurance in place that that capital and the investments that are going to be made, in addition to the increased operating costs that we've imposed upon ourselves with these conditions, that there is some return on that investment, and that can only be assured by having adequate amount of rock to be mined. In addition, we've agreed to a condition that indicates that we will be back before you in one year and every three years thereafter. So we're going to be back before you already. There's also a condition in here that if we are in violation of not being a good neighbor, you can revoke our CU permit. So I think we've provided ample conditions to address anything going forward. As far as compatibility, I think we have -- certainly have demonstrated, listening to your input, the public's input, with the reduction of the lakes, the increased buffers. We've heard today visually, also acoustically that this is compatible. So to increase that compatibility any further I don't know if it garners. The people who oppose the mine are going to oppose it regardless of what size it is going forward in the future. We've demonstrated we're compatible. We have an initial -- huge initial capital outlay that we need to assure that we can recoup by this rock. So I would respectfully ask that you withdraw your consideration of removing Lake No. 3 at this time. Thank you. CHAIRMAN STRAIN: As I told you when I met you and Bruce the other day, I had this as an issue, something I might introduce. And, you know, what really threw it into the introduction was that -- and at the time I pointed out to you both that the acoustics failed to address the location of Mine 3, but that was going to be explained by your acoustics guy, so I waited. What he explained is, you just slide it down. Well, that doesn't give me the picture I needed to understand how those acoustics don't have a greater impact on Lake 3 where there are more residences than they do on Lakes 1 and -- well, 1 is where mostly all of it was done. So I lost my level of comfort with Lake 3. And I don't agree that Lake 3 ought to be in the mix. And I'm not saying it shouldn't be in the mix in the final outcome, but I think that you have ample opportunity to bring it back at any time in the future to request it to be added to the conditional use. MR. SCHROTENBOER: Well, I don't disagree. We can bring a lot back in the future if we desire to. I mean, you know, perhaps cloning might be a possibility there, and we're going to be having nine Mark Strains and, trust me, one's enough. But with that, the -- we're going to ask Gary Siebein to come back up and -- because we want him to explain that further, because the application that was applied to the western boundary or any part of the mine applies regardless of where it's applied across the site. So I'd like to have him comeback up just one more time. CHAIRMAN STRAIN: Before you do, this isn't --we closed the public hearing. So I want to make sure that he's coming up at the request of this panel. So does any of these -- COMMISSIONER SCHIFFER: Well, I -- there was a question there, Mark, because he did show the thing coming down the western boundary. He did not really show that it would make a turn and go east and then make a turn and go west, especially the 60 -foot pile with the crusher behind it. So, obviously, there's a pattern here for overburden. If we made a condition then that changes, also, the patterns of the 60 -foot -- or the 25- and 60- foot -high mounds, that would always put the crusher behind the 60 feet. CHAIRMAN STRAIN: Well, they've already made the condition that the 60 -foot mounds would be there, because they've agreed to the language in the other paragraphs of the first several pages that originally only applied to Lake 1, that they would move those -- that stipulation into Lakes 2 and 3. So that part I understood, but I was still more concerned with the lack of acoustic, addressing that specifically. That's where my -- that's kind of what -- COMMISSIONER SCHIFFER: Because I think that mound system should be almost U shapen in that location. MR. SCHROTENBOER: Mark, to your point, I believe on the visualization that was depicted of what you talked about, as far as when we come south and then we turn and go east. I believe that was depicted on the visualization. And that's certainly the intent. I believe in regards to the Condition No. 6, that that supports what you're asking for as well. COMMISSIONER SCHIFFER: So there is no -- it would never be a case where the crusher is not behind the 60 -foot mound -- Page 64 of 87 March 15, 2012 MR. SCHROTENBOER: That's correct. COMMISSIONER SCHIFFER: -- from residential neighborhoods? MR. SCHROTENBOER: Absolutely, that is correct. That is our commitment. COMMISSIONER SCHIFFER: So, I mean, it's encapsulated behind that mound. CHAIRMAN STRAIN: Okay, I understand. Now, did anybody -- did we want to hear from -- more from the acoustic guy? COMMISSIONER EBERT: No. MR. SC1 ROTENBOER: Very good. CHAIRMAN STRAIN: Thank you, sir. Okay. I've exhausted all my discussion. I don't know if the rest of you have as we've gone through this whole thing. And we're into our fourth day, so I'm looking to where you want to go next. COMMISSIONER EBERT: I'll make a motion. CHAIRMAN STRAIN: Okay. Diane, you want to make a motion; go ahead. COMMISSIONER EBERT: I make a motion that we deny CU- PL2009 -1412. Several reasons. There are so many conditions on this particular thing. I appreciate that they have come back and tried to do a lot of good, but it still, to me, is incompatible. It goes against our GMP Goal No. 3, which is to protect our waters, and that's our aquifer right across the street. At one -- when I was out there, they were also going to close off the creek, which is a culvert under the ground which actually creates -- it's a beautiful little creek, and they were going to close that off, and that goes right towards Lake Trafford. And I'm just looking at -- there are several reasons but, really, a lot of homes that are out there are very, very old, and to be honest with you, I'm about two- and -a -half miles, three miles from Heritage Bay. When we moved in in 2002, the vibration and -- the vibration and the sound alone is -- and I'm a lot further away than the 1,500 feet. Fifteen hundred feet is not very far. Just for a development that just went on behind us, we felt everything. And living through it for 30 years is asking a lot. And I just -- to deny it for me. CHAIRMAN STRAIN: So you made a motion to deny, and you stated your reasons. COMMISSIONER EBERT: Yes. CHAIRMAN STRAIN: Okay. Is there a second? COMMISSIONER KLEIN: I'll second it. CHAIRMAN STRAIN: Seconded by Barry. COMMISSIONER KLEIN: I'll just say that I believe -- I have to go with the residents over commerce. CHAIRMAN STRAIN: Is there a discussion? Paul? COMMISSIONER MIDNEY: Yeah. Is this mike working? I guess it is. I think that the Alico Company has been a good steward of the land for many years. The orange grove is in excellent condition. They provide a lot of good jobs for people in Immokalee and in the county, and they give to charity. In particular, I know that when we asked for something for our farmworker charity, a medical charity, they were one of the few growers who pitched in, so I really do believe that they are a good company. And I don't think that this development will do anything bad to the hydrology. I think that the water supply to the neighboring properties will be, if anything, increased, not decreased. But I have a problem, again, with the compatibility with the neighborhood. I think it was interesting, the sound study. When they were talking about -- let's see. In Appendix E3 where they were talking about where you have an ambient decibel level of 32 to 42, a passing car was measured at between 42 and 63. So when you're in a quiet area, there's that much of a difference that happens when you have noise added on. And I know probably a lot of you have walked through the Corkscrew Sanctuary in the cypress dome area, and you can hear people who are talking half a mile away because sound carries very easily through areas that have low understory. And this CREW sanctuary will be similar to that; the sound will carry a lot. There's going to be 700 trucks leaving and entering per day. That comes to about one truck every 75 seconds. That's going to be a lot of noise and dust. I don't think it's compatible with this rural neighborhood. The increased buffers to 500 feet and the 12 -foot berm will lessen the impact, but I think there'll still be a Page 65 of 87 March 15, 2012 significant change to the neighborhood. Alico has offered to give up the access to Corkscrew Road so that the only entrance and exit will be off 82; however, 846 is a public road. No one can tell trucks that they can't go that way. Just go out to 82 and turn right down 846, because that's the shortest route to the coast, and it's also by distance and traffic intensity, and I think that's where a lot of the traffic will go. As an Immokalee resident, it's farther for us to go to Naples than it is to go to Fort Myers or Estero. Estero's about 30 miles; Fort Myers, 35 miles; and Naples 45. So when we go shopping we tend to use that Corkscrew Road a lot, or 82. And especially 82, it's already a dangerous road. And if there's going to be a lot of increased traffic, that's going to be worse on us who are using it to commute to go to work or to go shopping. A major reason for me opposing this project is its incompatibility with the CREW Trust recreation area, which is across the street. I've driven past other mines, and it seems pretty clear that a mine is just not appropriate for this particular place. Our family enjoys nature a lot. We've spent a lot of time out in the CREW Trust. And I want to make sure that everybody understands that it's unique. It's different from other nature parks in Southwest Florida. For -- the first thing is, it's free. That's not like most state parks or private ones like the Corkscrew Sanctuary where you have to pay to get in. It's very accessible to Lee and Collier Counties but especially close to Immokalee and Felda. And the inland communities, just from Immokalee, it's only 10 miles away. And unlike most parks, it doesn't have one or two boardwalks or hiking trails; it has many miles of hiking trails, and -- so that's another area that it's unique. And, finally, it's available any time. Some of our best family memories are walking out there in the moonlight. The reason why the CREW is incompatible with Lost Grove is that most of the trails are laid out near County Road 846. And the area that's bordering this limerock rine is mostly pine flatwoods. That means they're tall pine trees with an understory of palmettos and other low bushes. And this type of ecosystem is not common. It used to be. But since its very ideal for development in terms of the soil is well drained and it's easy to develop, physically, and from a regulatory standpoint, because it's not wetlands, there's becoming less and less common large stretches of pine flatwoods that are available as parks for hiking. When the CREW Trust land was bought or donated from Alico, it had been logged over and didn't have a lot of large pines. It had a lot of small trees with a thick layer of bushy underbrush. In its natural state, a pine flatwoods forest burns about every three years. And because the pine trees themselves don't burn, you have -- after a few decades you have some big, tall pine trees with a low understory, mostly of palmetto. During the past 15 years since CREW has been managing this place, it has been burned about every three years. And if you drive past now, you can see that most of the trunks of the pine trees are blackened, and you can see quite a ways into the park because the understory is kept low. So the pine trees are getting taller, and you're going to have an ecosystem that's rare and that's very valuable, because there's few large expanses of pine flatwoods in Southwest Florida that are managed intensively as parks. So you have a problem that if the mine is put in, the sound is going to carry a long distance because you have not very much in the understory. People who are coming to CREW Trust now have a special experience. They get to see and hear something they don't see somewhere else, and you really feel like you're getting back to nature. The silence there is just remarkable. If the Lost Grove Mine goes through, the experience will be different. I appreciate the setbacks and the berms and the noise dampening equipment, but I think that the sound of this industrial operation will still carry into the CREW's Trust hiking trails that are used by the public, and we can't move the trails farther away from the road because beyond half a mile or so you get into the corkscrew marsh, which is the headwaters of the Corkscrew slough, and it's too wet to really hike in. As long as this mine would be running, which would be for 30 or 35 years, there would be a change into the CREW Trust ambiance. And after that, it might turn into a town or a village, an RLSA village, and this would also make the change to CREW permanent. I think as we look towards the future, unique, extensive natural areas that are near population centers such as we have now with the CREW Trust are going to become very important to our quality of life. This mine in this Page 66 of 87 March 15, 2012 location will cause serious harm to the neighbors, motorists leaving and entering Immokalee to the west and the CREW Trust, and I don't think that the harm can be avoided or totally mitigated for. There hasn't been a single member of the public that has spoken out in favor of this project, and in my 10 years on this board, I can't remember where there hasn't been at least one member that says, well, you know, this project isn't that bad, you know, we can tolerate it. I agree, Alico has a right to a reasonable use of their property, but the present residents here also have rights, and what comes in should be compatible with what's already there. So the testimony has shown that there will be disturbances to the neighborhood, increased volume and intensity of traffic, the road becoming more hazardous, increased noise, dust, and nighttime lights. But the thing that we have to decide as a board, what's the threshold where something is incompatible or not incompatible. And I think for the purpose of our decision, staff has told us that to be incompatible the mine doesn't have to break noise ordinance, it doesn't have to damage homes from blasting, it doesn't need to make the roads fail. I think it's clear that incompatibility can be accumulative effect of smaller impacts. So my reasons for voting to reject this petition are: Incompatibility with the neighborhood because of traffic, noise, light, dust, and blasting. If we approve this mine, we're going to be sacrificing one thing for the sake of something else. And the neighborhood belongs to those who live there. The CREW Trust belongs to all of us, and I think the word "trust" here is appropriate. I think we're being called on to make the right decision. CHAIRMAN STRAIN: Paul, I thought you said all that from memory, but I noticed you've got -- COMMISSIONER MIDNEY: No, I'm not that good. And usually -- I wanted to preface, you know, usually I'm a man of few words, but sometimes -- CHAIRMAN STRAIN: Well, you broke the record on that one. COMMISSIONER MIDNEY: I did, for consecutive words at once. CHAIRMAN STRAIN: Is there any other discussion? Any other comments from the Planning Commission? COMMISSIONER BROUGHAM: I have one. CHAIRMAN STRAIN: Go ahead, Phil. COMMISSIONER BROUGHAM: And I really vacillated, quick frankly, on this proposal for and against as we went from hearing to hearing, testimony to testimony, thought process to thought process and so forth. But I did make some notes with my one good hand, and I'd like to read through them. The bottom line is that I am going to vote in favor of the motion, which is to deny, but I'd like to state my reasons for that. County staff has concluded that the setbacks offered by the petitioner -- and initially of 300 feet from all boundaries and now increased tremendously by 6 times the required county setbacks adequately addressed the issues regarding compatibility. Staff further states that while there are residential uses on the adjacent tracts, the lands are zoned with an agricultural designation; therefore, the proposed setbacks are in compliance with the Collier County regulations. My opinion is, after visiting the site, that the proposed projects, even considering a 500- to 1,200 -foot setback, is going to have a significant adverse effect on the surrounding properties, including the CREW lands, as well as the residential properties adjacent in Collier and Lee County. Mining operations will disturb both the human and wildlife population of the surrounding properties. Certain testimony was heard that a setback of 1,000 to 1,400 feet would still not insulate from that disturbance. While, admittedly, the residential units are within agricultural zoning, they are still residences and people live there, and a mining operation is not compatible, in my opinion. With respect to the CREW lands, there is no way to predict the disruption to the wildlife within these lands nor to the thousands of visitors to those areas seeking the peace and quiet of nature. My opinion is that the mine is not compatible with the surrounding properties and it will directly or indirectly impact those properties and the uses that -- they're currently being put to. And also why I asked the opinion on compatibility, it's my opinion that compatibility is not an objective measure, but it's a subjective measurement that each person must decide for themselves based upon as much input as we can get. County staff has also determined that there's no significant or adverse impact demonstrated on Corkscrew Page 67 of 87 March 15, 2012 Road or State Road 82. Notwithstanding discouraging the trucks from going on Corkscrew Road, there's no way you can really control it, and the drivers are independent operators. They're going to take the shortest route they can get to I -75 southbound. So that is going to have an impact. The truck traffic, to some extent, is still going to exist on that roadway no matter what we do, unless we block the road off. And, therefore, based upon those considerations and my opinions, I am voting with the motion to deny the petition. CHAIRMAN STRAIN: Okay. Anybody else? (No response.) CHAIRMAN STRAIN: Okay. We'll call for the vote. I need you both to say aye and raise your hand. If you're in favor of the vote, please signify by doing so. If you're in favor of the motion to deny, please raise your hand and say aye. COMMISSIONER MIDNEY: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER EBERT: Aye. COMMISSIONER KLEIN: Aye. COMMISSIONER BROUGHAM: Aye. CHAIRMAN STRAIN: Those against the motion, same sign. Aye. COMMISSIONER VONIER: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER AHERN: Aye. CHAIRMAN STRAIN: So the motion carries 5 -4. COMMISSIONER EBERT: Wait a minute. CHAIRMAN STRAIN: No, 6? The motion to deny carries 5 -4. COMMISSIONER EBERT: Okay. CHAIRMAN STRAIN: So the applicant is denied. COMMISSIONER SCHIFFER: You voted those in favor of the motion first. CHAIRMAN STRAIN: Yeah, the motion is for denial. COMMISSIONER EBERT: For denial. COMMISSIONER SCHIFFER: Right. CHAIRMAN STRAIN: Okay. Five people wanted denial. Raise your hand again if you want denial. COMMISSIONER MIDNEY: (Raises hand.) COMMISSIONER HOMIAK: (Raises hand.) COMMISSIONER EBERT: (Raises hand.) COMMISSIONER KLEIN: (Raises hand.) COMMISSIONER BROUGHAM: (Raises hand.) CHAIRMAN STRAIN: One, two, three, four, five. What was the problem? COMMISSIONER SCHIFFER: Well, when you asked for the second vote, those against the motion, I raised my hand, and so was Diane, and I know she wasn't. COMMISSIONER EBERT: No. I was the one who -- CHAIRMAN STRAIN: Okay. We've got it straight. It's five against, four in favor -- I mean, five to support the motion, four against the motion. I saw a solution. I'm sorry that it didn't get there, but I still see a solution somehow. With that we'll adjourn for 10 minutes, resume -- or nine. We'll come back at 3:30 and finish up. (A brief recess was had.) CHAIRMAN STRAIN: Okay. If everybody will please take their seats, we have two more cases to hear. These next two items have been continued from the March 1 st meeting. They're both for the same property, so we will discuss them at the same time, but we'll vote on them separately. ** *The first one is VA- PL2011 -1410. It's called the Wahl variance at 8 Pelican Street West, Isles of Capri. The second one is BDE- PL2011- 0001409, and that's the Wahl boat dock extension. All those wishing to testify on behalf of this item, please rise to be sworn in by the court reporter. If you're Page 68 of 87 March 15, 2012 going to speak on this, you have to rise. (The speakers were duly sworn and indicated in the affirmative.) CHAIRMAN STRAIN: Disclosures on the part of the Planning Commission? Any? COMMISSIONER VONIER: I talked to staff, and I visited the property and talked to Mrs. Evans at No. 6, which is next -door neighborhood. CHAIRMAN STRAIN: Anybody else? Brad? COMMISSIONER SCHIFFER: Nothing. CHAIRMAN STRAIN: Okay. Anybody on this side? COMMISSIONER EBERT: No. CHAIRMAN STRAIN: I think I got an email from Josh asking me if I had any issues, and I didn't get back to him because I really didn't have any at this point. So -- okay. Whoever's going to make the presentation, Josh, if it's you. MR. MAXWELL: Good afternoon, Josh Maxwell with Turrell, Hall & Associates for the record. COMMISSIONER KLEIN: Pull that closer. MR. MAXWELL: Oh, sorry. Is that better? COMMISSIONER KLEIN: Yes. MR. MAXWELL: Okay. Better? COMMISSIONER EBERT: It works. MR. MAXWELL: The boat dock we're bringing before you today is the exact same boat dock that has been in place since prior to 1985. The reason we're here today is we would like to put in two boat lifts, one on the side, which requires a variance, and one on the end, which requires the BDE. The dock itself was built prior to BDEs being required so, therefore, it's a grandfather structure, but the boat lifts are not. And we discussed with the state about the placement of the dock. And due to aquatic reserve rules, the dock has to be built exactly where it is, or the dock has to be a marginal dock, which a marginal dock in the Marco River would not be favorable because the neighboring structures would impair ingress and egress. And so that leaves us with this option, rebuilding the exact same dock and adding the two boat lifts. We dove the site. There were no submerged resources present. We went through the ERP process and achieved an exemption from the State of Florida, an SGBP from the Army Corps of Engineers. The main reason we would like to put the lifts in, one, for the safety; when the boats are being moored in the swift current of the Marco River, they'd be moored out of the water, which will also help with water quality. Keeping the boats out of the water will prevent them from having to use bottom paint. So this exhibit here -- this exhibit here shows the Wahls, proposed dock, and the docks around it. As you can see, our protrusion distance is similar to those around and even less than some further down the river. There's one dock down the way that still protrudes approximately 100 feet out into the river. The river itself is approximately 800 feet wide so, therefore, we do not interfere with any of the navigation within the Big Marco River. How do I get this to zoom out a bit? Perfect. This exhibit shows previously there was a T dock here for approximately 17 years. The T dock, the extense of it and its mooring piles, was outlined by the red boundary, and that hatched area is the reduced preempted area that we will no longer be impounding with the new structure with the boat lifts and the new dock. And so, in essence, the proposed plan is less impactive than what was there for the last 17 years, and it is going back to the dock configuration that was built prior to 1985. So if there's any questions. CHAIRMAN STRAIN: Go ahead, Phil. COMMISSIONER BROUGHAM: Yeah. Can you put that back up, please. MR. MAXWELL: The second one? COMMISSIONER BROUGHAM: Yeah. I just want to understand. What is there today? Is that what is outlined in white? MR. MAXWELL: The white is what was taken last year when they flew the aerials. Presently, it is the L -dock configuration. When the Wahls wished to install a new seawall this past year, they went back -- the DEP Page 69 of 87 March 15, 2012 required them to go back to the grandfathered structure prior to the aquatic preserve, so that's why we're back to the L -dock configuration. COMMISSIONER BROUGHAM: I'm still not there, I'm sorry. If I look at the overhead in the petition or the aerial in the petition, it shows a T dock. MR. MAXWELL: Right. COMMISSIONER BROUGHAM: Okay. MR. MAXWELL: Unfortunately, we don't have the latest aerials that, hopefully, were flown last month. But here's a line drawing of the existing conditions, which is just the L dock presently. COMMISSIONER BROUGHAM: You're confusing me now between the L dock and T dock. If I look at the aerial photo -- MR. MAXWELL: Yes. COMMISSIONER BROUGHAM: -- in the petition, is that the existing dock? MR. MAXWELL: That was the existing dock up until last year when they removed the portion of the sea -- COMMISSIONER BROUGHAM: This is not current? MR. MAXWELL: Right. So the new aerials, helpfully, will be released here in the next few months. COMMISSIONER BROUGHAM: And so that dock protruded out how far? MR. MAXWELL: The existing dock protrudes out 58.6 feet to the mooring piles, a total of 41.5 feet to the end of the terminal platform. COMMISSIONER BROUGHAM: Okay, thanks. CHAIRMAN STRAIN: Anybody else have any questions? Bill? COMMISSIONER VONIER: Why was the section of the T dock removed? MR. MAXWELL: The T dock was added after the aquatic preserve rules were put into effect, at least that was the determination by the State of Florida. So that portion of the T dock was removed to come into compliance with the aquatic preserve rules so that the Wahls could install their new seawall. COMMISSIONER VONIER: Okay. So it was illegal, basically? MR. MAXWELL: I'm not sure exactly what date it was installed, so I'm not sure if it was truly built before or after the adoption of the aquatic preserve or before or after the adoption of the BDEs. But, unfortunately, the aerials aren't of the clearest quality for back then. CHAIRMAN STRAIN: Brad? COMMISSIONER SCHIFFER: The depth shown here, they're feet; is that correct? MR. MAXWELL: Yes. COMMISSIONER SCHIFFER: Okay. Why do you need to come out anyway? I mean, I know you historically were out there. But normally when we do these extensions, we do it to give people water depth. You certainly don't need it. MR. MAXWELL: We don't need the water depths but, unfortunately, if the Wahls would like to moor two vessels, they will require at least some form of a finger pier. A marginal wharf would be the only other option as far as the DEP is concerned because of the aquatic preserve rule; they only allow you to go out to negative four feet, which is at the base of their riprap. And so if we were to go with any other allowable dock configuration, they would only be restricted to one vessel, and it would also be difficult to moor the vessel due to the configuration of the neighboring structures and the swift current of the Marco River. COMMISSIONER SCHIFFER: Okay. So what you're saying is because of grandfathering, you can keep the shape? MR. MAXWELL: Exactly, just as almost every dock on the Marco River. COMMISSIONER SCHIFFER: Any adjustments to this shape will cause you to go back to the basic configuration, which would be much less than that. What's the reason you don't put the lift on the other side of the dock? MR. MAXWELL: Just the access to it. The backside of the dock is just not large enough for, you know, the majority of the boats that are on the water today. I believe it's, you know, 15 feet, which typically you would like to leave the back 4 to 5 feet of any vessel open for loading and unloading. And so, therefore, you know, we're restricted to approximately a 15 -foot vessel, which is fairly small Page 70 of 87 March 15, 2012 compared to everything else on the waterway in that area. COMMISSIONER SCHIFFER: Okay. So what you're saying is that there's no place on the other side you could put a lift that would allow you to access it from your dock? MR. MAXWELL: Not that would be easily accessible as far as normal ingress and egress. COMMISSIONER SCHIFFER: But from my experience when I go on people's boats, they usually go in one zone towards the rear. So why couldn't that zone be what's up against the dock there? MR. MAXWELL: You would then be forcing them to moor the boat backwards and have -- make them reverse over a boat lift structure, which is typically not a common structure. There's people that do do it in the county, but that's usually when that's the only choice they have. COMMISSIONER SCHIFFER: Actually, I was thinking the back would be at where your dock is where they would go in head first. But you have great water depth here. MR. MAXWELL: Hmm? COMMISSIONER SCHIFFER: You really have great water depth here. MR. MAXWELL: Oh, yeah. COMMISSIONER SCHIFFER: Which we rarely ever see. So you really could pull these boats in closer to shore. MR. MAXWELL: We could pull the bow of the one to the eastern side in closer, but we also don't want to be getting them too close to the riprap revetment. That's at the base of their seawall. COMMISSIONER SCHIFFER: All right, thanks. CHAIRMAN STRAIN: Okay. Melissa? COMMISSIONER AHERN: Would the neighboring houses have the same issues if they were looking to do something with their dock? MR. MAXWELL: Yes. COMMISSIONER AHERN: So by you coming closer to their property, you're not going to impede them in the future if they wanted to make changes; they're under the same compliance? MR. MAXWELL: Correct, because they have similar water depths. CHAIRMAN STRAIN: Anybody else? COMMISSIONER VONIER: Yeah. CHAIRMAN STRAIN: Go ahead, Bill. COMMISSIONER VONIER: The property on the -- to the left of the -- looking from seaward, looks like that property encroaches on the riparian rights of the Wahls; is that correct? MR. MAXWELL: It's within the setbacks. If it was a new dock, it would not be compliant. COMMISSIONER VONIER: Okay. So that basically is the reason that they can't use -- bring a boat in from that area, because that's so close? MR. MAXWELL: Well, it's that, and there's no practical place to install a boat lift that would allow easy mooring. COMMISSIONER VONIER: Okay. Another question. There are two apparent markers or tall piles off of the dock. What are those? MR. MAXWELL: Those are the existing mooring piles, what were there for the previous dock. COMMISSIONER VONIER: Okay. CHAIRMAN STRAIN: Okay. Anybody else? (No response.) CHAIRMAN STRAIN: Josh, you said something. You said when the seawall was repaired they had to change the T dock. What does the seawall repair have to do with the change in the sea dock. MR. MAXWELL: The State of Florida, when they applied for the seawall permit, they looked at the aerials available on Collier appraiser's site and realized that the dock that was there -- and their grandfather date was not the dock that was currently there. So in order to issue that permit, they made the Wahls modify the dock to the L dock that is there now. CHAIRMAN STRAIN: So the only thing that was grandfathered was the L dock, T apparently may have been added on and just wasn't done through anybody that -- maybe DEP or whatever? MR. MAXWELL: Right, either not through a permit or not provable easily with aerials. Page 71 of 87 March 15, 2012 CHAIRMAN STRAIN: And you said that if they -- they can't modify this dock without -- because it's grandfathered in, basically? MR. MAXWELL: Right. CHAIRMAN STRAIN: So that means if they wanted to lengthen the dock, they couldn't? MR. MAXWELL: They couldn't lengthen the dock and they can't shift it any further west, unfortunately. We did bring that up with DEP, and they said -- CHAIRMAN STRAIN: Could they shorten it? MR. MAXWELL: No, we could not shorten. We actually can't even make the terminal platform smaller because then we're not in compliance with the state's criteria. CHAIRMAN STRAIN: Which is? MR. MAXWELL: That it has to be the exact same footprint because I asked about possibly modifying the footprint to allow a boat lift on the left side and just shorten up the terminal platform, and they told me that would not be compliant then with the state rules. CHAIRMAN STRAIN: So you can't do a less restrictive boat dock without violating state rules? MR. MAXWELL: Because -- CHAIRMAN STRAIN: Boy, that is goofy. MR. MAXWELL: Welcome to our world. CHAIRMAN STRAIN: Holy cow. You're sure of this? MR. MAXWELL: Yes, because I asked the same question, because I had the same thoughts you did. CHAIRMAN STRAIN: Wow, because that does -- yeah, that does change things. Okay. Anybody else? COMMISSIONER SCHIFFER: I think what that says is the state does not want that dock there. It's in the wrong place. So what they're saying, if you touch it in any way, it goes away; you've got to rebuild it according to the code. MR. MAXWELL: To the current aquatic preserve. COMMISSIONER SCHIFFER: So the grandfathering aspect of this isn't to lessen the grandfathering. You can't -- you've only got the grandfather, or if you have the grandson, you've got to build it from scratch. CHAIRMAN STRAIN: Yeah. But if they try to put it where it would be more compatible from the code perspective, then the guy next door, who's in violation of his riparian rights, ends up -- this guy can't do anything. COMMISSIONER SCHIFFER: Right. CHAIRMAN STRAIN: Yeah. So he's kind of like in a catch -22. The guy next door is really the one pushing you to where you've got to be. MR. MAXWELL: Theoretically, we also -- if we could, if we didn't have the aquatic preserve, if this was anywhere else in the county, we would be able to shift this dock to the left and not require the variance. But, unfortunately, with Isles of Capri being in the aquatic preserve, that's not an option. CHAIRMAN STRAIN: Okay. Anybody else have any questions? COMMISSIONER SCHIFFER: Well, just one thing. CHAIRMAN STRAIN: Brad? COMMISSIONER SCHIFFER: When we were talking before, you said you wanted to get the second boat and everything, but you have too much boat length anyway. You have a 75 -foot lot. You're really only allowed half of that. So, you know, what you said to me is we need to get the other boat lift so we can get a bigger boat and violate the length requirements. MR. MAXWELL: The Wahls would like to have, you know, the two vessels just like anybody else in Isles of Capri has. Just because we are over the -- I mean, we're allowed to, I believe, meet four of the five primary, and in this case four of the five secondary, which we still do with this dock. So I can see that being a concern, but -- COMMISSIONER SCHIFFER: Don't get us started on the scorecard again. This board's wasted a lot of time on that. MR. MAXWELL: Okay. COMMISSIONER SCHIFFER: If you read that carefully it says, before we could give approval, you have to -- so, you know, that just sets us a threshold from which we could go forward and give you an extension. It's not the, "you hit the score, you win." But -- anyway. Page 72 of 87 March 15, 2012 How big are the boats you're going to put in there? MR. MAXWELL: We would like to be able to do, you know, 30 to 35 and then something around 25 so they could have, like, an offshore style vessel and possibly a bay boat or a pontoon boat and a bay boat. Right now they don't necessarily have the boats ready to go because they want to find out what kind of dock they can have first. COMMISSIONER SCHIFFER: So, essentially, you've got 75 foot of property line, you want 60 feet of boat in the back of it. MR. MAXWELL: (Nods head.) COMMISSIONER SCHIFFER: Okay. Thanks. I'm done, Mark. CHAIRMAN STRAIN: Okay. Anybody else? COMMISSIONER VONIER: Yeah. CHAIRMAN STRAIN: Go ahead, Bill. COMMISSIONER VONIER: Let me ask a question. Looking at the property to the right where they have no boats -- MR. MAXWELL: Right. COMMISSIONER VONIER: -- and you said everybody has two boats. Well, let's look at that part. Forget who -- that they don't have a boat. Let's say I bought that property tomorrow. There's no way I could put two boats in there. MR. MAXWELL: You could do a similar configuration to what we're proposing. COMMISSIONER VONIER: If I came in here and -- because of going to the right I couldn't get in there with a boat dock. I'd have to put one on the end and, actually, they have -- would have a right to a boat dock on the long section of their dock. MR. MAXWELL: You mean a boat lift? COMMISSIONER VONIER: A boat lift. MR. MAXWELL: Right. COMMISSIONER VONIER: And there's room there for them to have one legally. MR. MAXWELL: Right. COMMISSIONER VONIER: Okay. But it would be -- MR. MAXWELL: They would have to come before you for a BDE, though. COMMISSIONER VONIER: Yes, but it would become restrictive -- more restrictive for them if we put a boat lift on the Wahl side on that -- not on the end of the pier, but on the side, one that would encroach on their riparian rights. MR. MAXWELL: Yes, it encroaches on the riparian line and, yes, it is closer to the neighbors' riparian rights, but it does not affect their ingress and egress whatsoever, because you would be having a boat lift that is perpendicular to the shoreline to which you'd be pulling straight in and straight out of, so you'd be backing into the Big Marco River. So you wouldn't be inferring with the Wahls' boat lift, and the Wahls would not be inferring with any potential future lift on the neighboring property. CHAIRMAN STRAIN: Okay. Is there anybody else? (No response.) CHAIRMAN STRAIN: Thank you, Josh. Now, is there a staff report? MS. GUNDLACH: Good afternoon, Commissioners. I'm Nancy Gundlach, principal planner with the Department of Land Development Services, and I am here to speak on behalf of the variance. Staff is recommending approval of a 9.3 -foot variance, and that's from the eastern riparian line. CHAIRMAN STRAIN: Okay. But you just said the variance. You're not here for the boat dock? MS. GUNDLACH: I'm not here for the boat dock. Mike Sawyer's here for the boat dock. CHAIRMAN STRAIN: You've done plenty of boat dock extensions. How come we have two people doing the same thing? MR. BELLOWS: For the record, Ray Bellows. I wanted Nancy to do the variance because she's more experienced with that, and Mike is learning the ropes on the variances, so he's working with her on that. But Mike's Page 73 of 87 done a lot of boat docks, so he's handling that aspect. CHAIRMAN STRAIN: Well, I have no problem the same thing. March 15, 2012 I was just wondering why two different people are doing MR. BELLOWS: It's kind of a cross - training. CHAIRMAN STRAIN: Oh, okay. Okay, Mike. MR. SAWYER: For the record, Mike Sawyer, senior planner -- I'm sorry, project manager, now, for planning services. You've got the staff report that was originally dated February 17th and was revised on the 22nd. We are recommending approval of the boat dock extension. I'm here to answer any questions you might have. CHAIRMAN STRAIN: Any questions of either staff personnel on the variance or the boat dock extension? COMMISSIONER SCHIFFER: Let me. CHAIRMAN STRAIN: Go ahead, Brad. COMMISSIONER SCHIFFER: You know, Mike, to me this is the classic place, which is -- the legacy dock in Collier, I think, is a 4 -foot or so dock, 5 -foot, maybe, along the seawall where boats are attached to it, which they can do because they have the water. Rarely do we ever get a chance to do that. So why are we supporting this extension? Because, essentially, the extension is only needed to meet what the state has grandfathered in. MR. SAWYER: Right. Basically, when we have docks that have been in place before a lot of our regulations, the general rule is you are able to repair and replace board for board, and that includes any -- anything as far as the dock fixture itself or even boathouses. In this case we looked at what they were proposing to do with the boat dock extension. It really isn't affecting the dock itself. It's actually the extension that includes the boat lift and the vessels themselves. So that's really why they're here for the extension. We looked at it as an existing condition with the existing dock, and the request was actually more for just the lift and the vessel, primarily just at the very end. COMMISSIONER SCHIFFER: But they did have piers out there, which then would be allowed -- MR. SAWYER: Correct, which are out further than the current lift. COMMISSIONER SCHIFFER: And they were grandfathered in. MR. SAWYER: Correct. COMMISSIONER SCHIFFER: So if this whole dock is grandfathered in, then why are we dealing with it? I mean, obviously, the one on the side's in question. But don't you agree that the dock is grandfathered in by the state and us? You're saying that the lift itself outside that is why we're here? MR. SAWYER: I think -- correct. I think to a very large degree, I think you're exactly correct. What we're really doing is being more specific on the facility that they're going to have now which, as you say, actually encroaches more than the mooring poles out on the very end. COMMISSIONER SCHIFFER: And they had the right to the mooring poles; is that right? MR. SAWYER: Correct. Those are actually going to be going away. COMMISSIONER SCHIFFER: Are you comfortable with the length of the boats? I mean, why are we going out of our way to provide all these, you know, excess boat length based on the site, which is what would block the neighbors' view, though, multiple boats. MR. SAWYER: But, yeah. That's one of the criteria, and they're able to miss one of the criteria, according to the LDC. I'm just saying what -- how staff reviews. COMMISSIONER SCHIFFER: As a scorecard. MR. SAWYER: Staff has to stay by the scoreboard. COMMISSIONER SCHIFFER: We've lived there before. Okay. Thanks, Mark. CHAIRMAN STRAIN: Okay. Anybody else? (No response.) CHAIRMAN STRAIN: Thank you. MR. SAWYER: Thank you. CHAIRMAN STRAIN: Ray, you want to call for the public speakers? Please come up and use either Page 74 of 87 March 15, 2012 microphone. And we ask that you limit your discussion to five minutes. Wail until you're called. Ray's going to call you out. MR. BELLOWS: Joshua Maxwell? CHAIRMAN STRAIN: Joshua Maxwell. You already did -- you put a speaker slip in? You're the prime speaker. MR. MAXWELL: Just want to be prepared. CHAIRMAN STRAIN: Who's next? MR. BELLOWS: I don't see any others. CHAIRMAN STRAIN: Okay. Then the three of you that did rise to be sworn in, I know you then want to speak, you figure out the order. Whoever wants to go first, come on up and use the -- you already did that. Just come on up and use the speaker. MS. EVANS: Good afternoon. My name is Joan A. -- CHAIRMAN STRAIN: Pull this little thing closer to you. There you go. Get your voice in. Thank you. MS. EVANS: My name is Jane A. Evans. I live at 6 West Pelican Street, Isles of Capri. I am in -- the east neighbor, side neighbor of the Wahls. I've been a Florida resident since 1959, and I've lived at this property for 19 years. I received a letter which -- the first letter from the consultants for the Wahls -- I'm just going to begin about what happened -- and it told me about what they wanted to do. I really wasn't so sure, and the maps I didn't understand that well. But, anyway, shortly after, a knock at the door, and the Wahls came to say hello. They had came into town. So how are you? I'm fine. Well -- but I said, I'm not that fine because I just received notice of what you want to do, and I'll tell you right now I'm going to say no. Oh, Joan, Joan. Come in, look at this letter. It says you want two boat lifts. You want to encroach on my property. No, no, Joan. That is a mistake. We only want one boat lift. I said, well, read the letter. It says two boat lifts. No, no. Let's go outside, Joan, like Hansel and Gretel, you know. We don't want anything different. We want to replace everything just the way it is. Okay. And anyway, that ended. Well, this whole situation has brought up something that has been in question with me for a long time. I have grandchildren and I have great grandchildren. And for a long while -- they've always been saying, Nana, if you'd put in a boat lift, we'd come to see you more often. Well, at this time in my life, the sunset of my years, I have decided that I want to put a boat lift in and have already had different bids, and I will be applying for an application. Now, getting back to what the Wahls want to do. I have no animosity towards them. I like them. I'm happy they're building this beautiful home. I've had 18 different homes from here to outside of Tallahassee, everywhere. And this is my first time -- in fact, my daughter laughed. She said, Mother, you're going to be an activist after all these years. And I said, well, I think it's wrong with what they want to do. And I want to tell you that I feel that the encroachment and the pilings, the existing mooring pilings out there, they're intertwined. When I put my boat lift in, those pilings that are existing -- and I don't really -- I'll tell you another story after that -- believe they're legal. That's going to impede coming in, because the Marco River really is treacherous. I've even seen the charter boats. I mean, the current's unbelievable. And they're out -- if you stand at the end of my dock, the boundary survey, and you look out -- CHAIRMAN STRAIN: You need to use the mike, Miss. Turn around and use the mike. I'm sorry. Do the best you can by using the mike. MS. EVANS: If you look out -- if you stand at the edge of my -- the west end of my boundary and you look out, it almost looks as though those existing mooring pilings are right in line; however, I realize -- I've been studying the map and learning more about it -- that the map says they're six feet away from my survey line. It's hard to tell. And they -- the mooring pilings, the existing mooring pilings, extend beyond my dock, so that when you're coming from the gulf and want to come back in, I've seen boats that are out there trying to fish in front of my property, charter boat, they have a hell of a time getting in. Page 75 of 87 March 15, 2012 And with the Wahls -- and I also wanted to say, because it's the truth, he has a boatyard, and he build Alaskan trawlers. Who's to say whether he's going to put an Alaskan trawler out there? Anyway, I feel that the variance for both things -- I'm asking you to deny it. And I also want to say the survey of the boat traffic hasn't been done, and it definitely is heavy, heavy boat traffic. And as far as the mooring pilings and the dock that was removed, I knew the man -- Ed Lemka was his name -- who owned the house that was built, then demolished, because I bought his property at 18 East Pelican in the mid '80s. And I remember him coming over and talking about putting the dock in and also the pilings in, because he couldn't wait to bring his big boat over from Goodland. And I also know that the man who owned my house -- there's only one owner before me. We were living in Key Largo at the time, and my husband, of course, knew Chris Middlebrook, the broker, and he referred to him as Old Man Davis, Earl Davis was owner of Marco Marine years ago. At the time he was 90. And I think he watched everything like a hawk. And that's why as long as I lived at 18 East Pelican there was never a boat out at those existing mooring pilings and boat dock. Now, after that -- we moved after a year, so I don't know what happened in between. But I can tell you as long as I've lived there, there's never been a boat docked there. Maybe a boat came with a bunch of little kids picking them up or taking them off, but the owner or -- I forgot what his name is -- Madeiras -- Mr. Madeiras never had a boat there. There's never been a boat there. And whatever they want to do I feel is detrimental to what I have. I hope that I can leave property that's entirely mine and legal. And I'd like to read -- CHAIRMAN STRAIN: Miss, you're getting to the end of -- MS. EVANS: Can you hear me? CHAIRMAN STRAIN: I'm right here. MS. EVANS: Yeah. CHAIRMAN STRAIN: You've used up more than all your time, so I've got to ask you -- MS. EVANS: Oh, I have? CHAIRMAN STRAIN: -- to come to a conclusion. MS. EVANS: Well, I just want you to put yourselves in my position and think of it as your house and what they want to do and what I want to do, and I definitely want to put a boat lift in now, and I guess make me happy to see the kids come over to see me more often, and everything is legal. I just -- and I don't have money like the Wahls have to be appealing or anything. CHAIRMAN STRAIN: Yeah. I think we've heard enough. Thank you very much. We'll see you again when you put your boat lift in. Come on up, sir. MR. SPIEGEL: Good afternoon. My name is Art Spiegel, and I am at 4 Pelican Street West. I stand before you simply to respectfully ask that the board follow the guidelines that were established or the laws that were established and not allow a variance for a project that is not, in fact, a hardship for the applicants but is more a convenience for the applicants. A variance would definitely have a negative effect on the neighbors of the established -- and the established laws that are put into effect would be a detriment, or excuse me, the existing laws should be there to protect us, not be a detriment to us. Why should we be standing here trying to argue on behalf of the county? We have to remember that the applicant was asked to remove an illegal section of dock that their advisers or consultants seem to not want to have come out of their mouth. It was an illegal section of dock, and they did take it out; although, now they want to put a boat lift in the exact spot where that was, where that illegal section was. And it will take up substantially more square footage than, in fact, they took out by placing a boat there. Additionally, they're proposing to put a boat lift on the outside of the end of the dock where, in fact, originally there was a boat on the inside of the dock which is, in fact, where most of the boat lifts are on Isles of Capri. And I take exception to the consultant saying where most of the boat owners on Capri have two boats, a big boat and a small boat. Well, maybe they have lots that are 150 feet and not 75 feet. And to put two boats on one dock the way they've situated them is going to create a situation where neighbors are going to lose view, they're going to Page 76 of 87 March 15, 2012 lose their rights for navigation. For instance, Mrs. Evans, who would like to put a boat in, will then have to apply for a variance for her property. And if she applies for a variance, that will then affect my property because I won't be able to get my boat in without a variance if she moves hers over, and this will create a chain reaction. I know that there are criteria that they have to meet four or five of, et cetera. And I'm sure if you go down through the criteria, you will find that in both the substantial criteria and additional criteria, four out of five are not met, and I certainly hope that the county or you, as representatives of the county, will take that into consideration. Thank you. CHAIRMAN STRAIN: Thank you, sir. Next speaker, please. MR. RENALDI: Good afternoon. My name is Anthony Renaldi. I live at 10 West Pelican Street. I have no animosities towards the Wahls. I could only speak on behalf of me living in that property and owning that property for 27 years. In the 27 years I've been there, there's never been one boat at 8 West Pelican Street, not one. So 27 years that I've been there. Prior to that, I have no idea. The boat dock on the side that was -- that Mr. Spiegel said was illegal, it was illegal and was falling down, to be honest with you, because it was very unsafe from my recollections. And I knew the owner, the previous owner -- the last two owners. Which Mr. Lempka built that house. I bought my house in'85, and I believe he built his in'83. So he was my neighbor. He never, never had a boat in any of the docks there. The pierings -- the pillings -- pilings -- I'm sorry. The pilings that he put in, I don't even think they were legal, because he was having a tough time, as Joan Evans said, taking his boat from Goodland. So he just gave up on it. And he had a boat in Fort Lauderdale and he had another up in Brea, California, so he was a pretty wealthy man. Whatever his problem was, I have no idea, with the boat -- I didn't get into all the particulars -- but he would loved to have his boat there. And he'd always tell me, Tony, I have a 35 -foot boat, you know, it's over in Fort Lauderdale, and blah, blah, blah, and I can't get it over here, and I had a little 19 -foot boat at the time, a Rabello, and now I have a 23 -foot, and he says, Tony, you don't have to go any bigger. That's big enough for your boat. The waters are tough. I have to come into -- from the river driving in. An ideal situation, naturally, would be coming in from the side because the current there in the Marco River is just unbelievable. I mean, you can throw a refrigerator in the water, and it's out in the Gulf of Mexico. So I ask your pleasure to deny this because I just think it's not fair. Thank you. CHAIRMAN STRAIN: Thank you, sir. Are there any comments from the applicant at this point? MR. HALL: Good afternoon. For the record, Tim Hall with Turrell Hall & Associates. I work with Josh as well. And I think I wanted to try to clarify something, that the boat dock extension and the variance that we're coming in for right now are for the lifts. The boats can moor there now as it is. The structure's exempt and the mooring associated with that structure is also exempt from the requirements. The reason we're here before you is to add the lifts, which is really a -- one of the gentlemen said a convenience factor. Absolutely, it is more convenient to have the boats on the lift, but it's also safer. They've documented as well as we have the conditions on the Marco River can get relatively rough. And having the boat on a lift out of the water is a safer condition for that than if it has to remain in the water and banging up against the dock back and forth, you know, all the time. But I wanted you guys to understand that because the structure's exempt, the mooring associated with it is also exempt. What we're here asking for is the ability to put in the lifts to support those vessels. CHAIRMAN STRAIN: Any questions? COMMISSIONER SCHIFFER: I do. CHAIRMAN STRAIN: Brad. COMMISSIONER SCHIFFER: What do you mean the boat's exempt? In other words, you're allowed now to have a boat in that setback? MR. HALL: Yes, sir. COMMISSIONER SCHIFFER: From -- how would you get there? MR. HALL: Because the structure is exempt, if I moor a boat along that structure, then that mooring is also Page 77 of 87 March 15, 2012 exempt. It comes with the -- COMMISSIONER SCHIFFER: The structure's exempt, but we have a requirement and the requirement includes the boat, that you can't put it in that setback. So when you dock it, you're violating the side setback. MR. HALL: No. It would be the same as if I parked my lawn mower beside my house in the side yard setback. I'm not required to -- if I put a shed over the lawn mower, I'm required to get the variance. I'm not required to get the variance to park the lawn mower there. COMMISSIONER SCHIFFER: It would be okay to do if our code said that when you measure the setback of a house you include the width of your lawn mower. MR. HALL: The variance only talks about structure. It doesn't include the vessel, because -- CHAIRMAN STRAIN: Could you get the definition of dock facility up, Ray, while they're talking? MR. BELLOWS: Yeah. For the record, Ray Bellows. The dock facility is grandfathered in and vested, and the dock -- the mooring of the boat on a dock that's preexisting contemplated that, and it was prior to the setback requirement. So it's not -- it's a preexisting, nonconforming dock that has rights to continue. Now, they want to expand upon that by adding the boat lifts, which now requires, under a current code, to come in for a boat dock extension and a variance. But if they don't -- if they chose not to apply for the boat dock -- or for the boat lift, they could still moor the boats there. COMMISSIONER SCHIFFER: You know, and I agree with you that the -- let's say the wood structure of the dock is a nonconforming, but it's grandfathered in. No question there. MR. BELLOWS: And mooring the boat there would be part of that. COMMISSIONER SCHIFFER: But why do you have to moor the boat there? They have such deep water, they can come around the other side. They can do a lot of things. You know, the width of the boat is part of our boat dock facilities. MR. BELLOWS: Yeah. But if it's a preexisting dock, I don't see how we can prohibit that. COMMISSIONER SCHIFFER: Well -- MR. HALL: And I don't understand. You keep saying coming around to the other side. Do you mean coming around behind the L? COMMISSIONER SCHIFFER: Well, look at the depth of the water there. I mean, you can -- MR. HALL: Well, I understand the depth of the water, but how would you maneuver the boat to get to the backside? The L is in the way. COMMISSIONER SCHIFFER: Well, I don't know, come around the backside. I mean, I'm not a boat guy, obviously, and you are. COMMISSIONER AHERN: That would be difficult; would be very difficult. COMMISSIONER SCHIFFER: You can't do it? CHAIRMAN STRAIN: If you're not a boat guy -- COMMISSIONER HOMIAK: We'll give you a boat, and you try and put it in. We'll see how it works. COMMISSIONER SCHIFFER: Anyway. MR. HALL: I mean, you want to bring your boat in and out of the open side of the dock. Trying to get it through that 29 -foot area, turn it around, and bringing it into a lift or something on the other side of that L would be very difficult. COMMISSIONER SCHIFFER: I mean, it looks like it has about 30 feet there, but anyway. And maybe the boat's too big. Maybe the boat I have in my non - boating mind is small enough to do that. COMMISSIONER EBERT: Tim, I have a question. CHAIRMAN STRAIN: Well, Melissa asked -- Melissa and then Diane. COMMISSIONER AHERN: Ray, the property, I guess, to the west, that's also encroaching in the side setback; is that correct? MR. BELLOWS: You're referring to that structure? CHAIRMAN STRAIN: Yes. MR. BELLOWS: It appears to be, yes. COMMISSIONER AHERN: And so currently they are under the same -- MR. BELLOWS: Preexisting non -- COMMISSIONER AHERN: -- preexisting criteria. So the same criteria is allowing them to -- Page 78 of 87 March 15, 2012 MR. BELLOWS: Applies to many of those docks. I'm looking at the aerial on Google Earth, and it looks like a lot of docks that may be in the same situation. COMMISSIONER Al ERN: Right. Well, that's kind of where I was going. I wanted to make sure that I was -- okay. MR. BELLOWS: Yeah. CHAIRMAN STRAIN: Diane? COMMISSIONER EBERT: Tim, are you saying that the docking facility there now cannot be changed; they cannot take that L portion off? MR. HALL: Right. The way the aquatic rules read is that if you make any change to that dock itself, then the whole thing has to come out, and it goes to -- only a marginal wharf would be allowed. They're not allowed to snake any changes to it without -- without eliminating the whole thing. I agree with you that it's not -- it's not a rule that makes a lot of sense, but that is the way that it reads. COMMISSIONER EBERT: I see the depth is there, so that's not a problem. But you're right, state rules. CHAIRMAN STRAIN: Brad? COMMISSIONER SCHIFFER: What is the marginal dock that you could build there? MR. HALL: It would just basically be a 4- foot -wide walkway along -- marginal to the seawall. COMMISSIONER SCHIFFER: Which would allow you to dock boats alongside that and essentially maintain the 20 foot -- MR. HALL: You'd have to come in parallel to them, and then -- so you would actually be maneuvering your boats within the two docks on the outside. So it would make -- COMMISSIONER SCHIFFER: That looks hairy, I agree with that. MR. HALL: It would make getting in and out harder. COMMISSIONER SCHIFFER: Ray, when did -- the setbacks for docks, when was that established, before or after these docks with the boathouse next to it were built? MR. BELLOWS: This dock was built prior to that, those standards being adopted. COMMISSIONER SCHIFFER: So when everybody was out there building, there was no setback requirement from the -- MR. BELLOWS: There was no boat dock extension process in place, and we didn't have those kind of setback requirements. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: Anybody else? (No response.) CHAIRMAN STRAIN: Tim, if -- let's pretend there was no dock there at all. This was a barren piece of property, these homeowners came in to build a house, and they went to the DEP to get a dock. What would be allowed there? MR. HALL: The marginal wharf. CHAIRMAN STRAIN: Just the marginal wharf? MR. HALL: Just the marginal wharf along the seawall. CHAIRMAN STRAIN: So they couldn't even put a finger dock there or anything else? MR. HALL: No, sir. CHAIRMAN STRAIN: Thank you. Anybody else have any questions? MR. HALL: They could put a boat lift -- they could put a marginal wharf and a boat lift. But in terms of the structure, the marginal wharf would be -- COMMISSIONER EBERT: So it would be the 75 -foot length in here? You're saying that's four foot or -- MR. HALL: They could come out with a dock 4 feet from the seawall. COMMISSIONER EBERT: Okay. And then they would have the 75 feet to park their boat? In other words, with the two boats this way up against it? MR. HALL: Yeah. They'd be parallel to that dock. COMMISSIONER EBERT: Okay. MR. HALL: But if you look at the way that the docks are on both sides of it, than they're maneuvering in an envelope between other existing structures. And it just is -- it makes it harder to get a boat in and out. Page 79 of 87 March 15, 2012 COMMISSIONER SCHIFFER: One more question. CHAIRMAN STRAIN: Okay. Brad. COMMISSIONER SCHIFFER: Why wouldn't they let them build a perpendicular dock? I mean, why would this lot be unique? MR. HALL: When they established the aquatic preserve rules, there is a provision in there that you can't go out further than minus 4 feet with any dock. And the way they interpret it, it actually means that your boat as well is supposed to fit within that same envelope. In this case, that's simply not possible because the depths are four feet right next to the riprap at the seawall. So they allow them the minimum, which is the marginal wharf, and then the boat outside of that. COMMISSIONER SCHIFFER: And then all the other sites we've seen on the island and stuff are not in that same zone? MR. HALL: No. Actually, all of them -- it depends upon the water depth. All of the docks along this river, if they go into DEP and ask for revisions to their docks, they're going to be brought under the same criteria. They either have to leave them as they are right now or go to a marginal wharf. COMMISSIONER SCHIFFER: All right. CHAIRMAN STRAIN: Anybody else? (No response.) CHAIRMAN STRAIN: Tim, thank you. I have one question of whoever did the variance. You guys have got me confused now, not that you look alike. Nancy, thank you. MS. GUNDLACH: I did the variance. CHAIRMAN STRAIN: How did you determine that the desire to have a boat lift on the east side of this L dock was a hardship? I mean, I've read your criteria, but I can't figure it out. Because they don't need to have two boat lifts. They could have one boat lift. And if they wanted one boat lift for a big enough boat to go offshore and inland, they could do that. So where's the hardship related to the need for the variance for a boat lift on the east side? MS. GUNDLACH: Okay. So you're saying they shouldn't have the second boat lift in that location? CHAIRMAN STRAIN: I'm not saying -- I'm asking to understand the analysis of how -- a variance is required if there's a proven hardship. What is the hardship that is considered on the second boat lift? And I could see if they had a dock and they needed to have a variance for a boat lift, but how is a hardship for a second -- how do you say there's a hardship because now they want two? I mean, I know it's different than the other people, but the other people aren't changing their docks. MS. GUNDLACH: Okay. Are you saying, like, having that second proposed boat lift on the east side of the dock -- CHAIRMAN STRAIN: Right. MS. GUNDLACH: --how is that a hardship as opposed to just mooring the boat there? CHAIRMAN STRAIN: Since that's the one that's subject to the variance, yes. So how is that a hardship? I mean, I just don't -- if it was the only one they could possibly have and that's the only place they could dock a boat, if they wanted a lift for that, I would say, yeah, it's potentially a hardship. Ray? MR. BELLOWS: Yeah. For the record, Ray Bellows. And I've read the criteria and discussed it with Nancy. It was my understanding that the hardship is the fact that can't shift the dock over and, you know, then can concurrently moor a boat there. So if you can currently moor a boat there, then the only purpose of this petition is to put a boat lift in. And they can't shift the dock over. That was the reason I didn't object. It's not that -- you know, they can still have two boats there; we can't prohibit that. The boat can be moored there. It's just whether it's on a lift or not. CHAIRMAN STRAIN: Okay. But under your criteria then, you're saying that they are entitled to two boats? Do we have a -- I mean -- MR. BELLOWS: They still can do it; if you deny this petition, they could still have two boats. CHAIRMAN STRAIN: I know. But the issue is the boat lift. I think everybody's made that real clear. The issue is the boat lift. And our variance requirements are you've got to prove hardship, and I'm not sure -- Page 80 of 87 March 15, 2012 MR. BELLOWS: Well, our hardship was they couldn't move the boat dock over. CHAIRMAN STRAIN: Okay. But they couldn't -- yeah, but the hardship is they want two boats. MR. BELLOWS: Yeah. And they could do it if they could have shifted the dock over. CHAIRMAN STRAIN: So is the desire to have two boats on lifts considered a hardship when you have one that doesn't need the variance? MR. BELLOWS: I don't think staff looked at it that way. When I looked at it, it was that they couldn't shift it over to meet the setback. CHAIRMAN STRAIN: Okay. I'm just, again, trying to figure out -- if I owned a home and I could have one boat and the place I could put it was in a setback, yeah, I think that would be a hardship. But if I had one boat that was free and clear of any setback concern or conflict but I wanted to have a second one, is that really a hardship for me because I can't have two but I want two? MR. BELLOWS: I understand what you're saying, but we didn't look at it that way. We looked at it that they couldn't shift. CHAIRMAN STRAIN: I'm having a hard time getting there is what I'm saying. MR. BELLOWS: Yeah. I understand what you're saying, but we were thinking more that the dock is locked in. CHAIRMAN STRAIN: Yeah, that's another way to look at it. I don't doubt it a bit. Anybody have -- Brad? COMMISSIONER SCHIFFER: One more thought. And, Heidi, this might be a conversation with you is when you have a nonconforming use, you're not allowed to enhance it in any way, correct, or expand it, enhance it? Certainly, nonconforming means we're not allowed to, in any way, increase the nonconforming use. Adding these lifts to the nonconforming dock, could that be a problem? MS. ASHTON- CICKO: Well, generally, yes, you can't increase your nonconformity. Now, they're talking about some state rules regarding docks, which I'm not familiar with. COMMISSIONER SCHIFFER: And we're also talking about our rules. These are grandfathered docks. In other words, these docks would not be in compliance. So -- and I don't see why, you know, him saying that if you touch the dock and change it -- I guess if you add a lift to it, an improvement like that doesn't trigger anybody's concern, but -- MS. ASHTON- CICKO: Well, as far as the riparian line, they're currently built within the riparian line, so -- COMMISSIONER SCHIFFER: Well, not once you put a boat alongside. MS. ASHTON- CICKO: You know, the protrusion -- the existing protrusion would be a nonconformity. CHAIRMAN STRAIN: Well, I think the water depth might bring into a concern over the original deed for nonconforming. We wouldn't -- if this dock came in now based on water depth, I think we'd have a hard time understanding why they would need it. That may be where the nonconformity also falls into play, so -- COMMISSIONER SCHIFFER: And the other problem I have is that you're adding a pile into the setback. I mean, if -- I don't necessarily agree with Ray, but let's pretend I do. You could come in and dock a boat now. No one's going to chase you off, but lifting it in the air is a completely different thing, especially to the neighbors and putting structures out there to do that. That's not the same as you can put a boat there now. COMMISSIONER EBERT: I have a question for Tim. CHAIRMAN STRAIN: Well, Ray wanted to say something first, then we'll get to you. MR. BELLOWS: I just wanted to respond to Brad's comment. I understand the concept that they're making a change by asking for this boat lift, but I think, talking to staff, the single - family lots are allowed two boat docks or two slips, and if they didn't ask for the lift, they could have the two boats moored there on the dock without coming to this Planning Commission or to staff. Now, is the installation of a lift safer than mooring the boats on this river with the heavy stream flow? In our opinion, it was a safer condition. And did the boat lift on this east side of the dock represent a hazard to navigation pulling in or not? And -- or would it impede the property owner to the east of the developing one? And it didn't appear to be so from our standpoint. COMMISSIONER SCHIFFER: Okay. But, Ray, I don't think we can save the community from water currents by boat lifts. I mean, that's not our job. In other words, I think adding a boat lift within the setback is a problem. If the boat can dock there, let's just say the boat can dock there. Page 81 of 87 March 15, 2012 MR. BELLOWS: Yeah, they can boat there -- or dock there without this petition. COMMISSIONER SCREFFER: But that doesn't mean we have to structurally, you know, enhance this nonconforming use by adding other structural components to lift it in the air. MR. BELLOWS: That's correct. I'm just telling you our staffs standpoint. CHAIRMAN STRAIN: Any other discussion? Diane, did you -- COMMISSIONER EBERT: Yes, I do. Tim, at the end of the dock, I see you have a boat lift there. Could they take the bigger boat that they want to put there and put it at the end of that L? Can they -- you put the boat lift there and they have the big boat at the end? MR. HALL: The issue runs in with -- looking at the size of the boats coming in perpendicular to the seawall, again, is preferrable. It gets it closer to the seawall. So from a visual standpoint and sticking out into the waterway, it's less being on the side than it is out at the end. The other thing is the length of the L at the end kind of limits the accessibility to the boat if you have -- I think it's -- I'm sorry. Do you know what the width of that L is? Is it 20 feet? We have that here. It's just a matter of them being able to access the front and the back of the boat. COMMISSIONER EBERT: But if you're bringing a boat in, there is -- I mean, we don't have to worry about water depth at all. But if you put a boat lift out at the end, between the two red lines, you can get a pretty big boat in there. MR. HALL: Well, if you went between the two red lines, yes, ma'am, but, again, you'd have this tiny little access into the boat, and that just is not -- COMMISSIONER EBERT: Twenty feet? You told me that this is -- MR. HALL: If you put -- you just said you could put a boat between the two red lines. I mean, that would be a -- COMMISSIONER EBERT: No, no, no. So rather than parallel to the boat, you put it this way. MR. HALL: Yes, ma'am. COMMISSIONER EBERT: Okay. Between the required setback and the riparian lines, how many feet is that? MR. HALL: Between the riparian line and the setback is 15 feet. COMMISSIONER EBERT: Okay. So they could get -- on that -- and how wide is a boat lift? MR. HALL: I mean, if you had -- you've got 15 feet of setback on both sides of the lot. COMMISSIONER EBERT: Yes. MR. HALL: So I would guess then you would have about 42 or 45 feet between the two of them. COMMISSIONER EBERT: So you can get a big boat at the end of that dock? MR. HALL: You can -- yes, ma'am. I'm not arguing that. You can put whatever size boat, really, you want out there. I'm just saying that in terms of trying to, then, maintain the boat, if you don't have access along the side of the boat, then when it comes to washing it down and keeping it clean and getting materials on and off become more difficult if you're restricted to only smaller sections of the boat. If you have a 35 -foot boat, the best place for it here is alongside the dock, not parallel like you're explaining. COMMISSIONER EBERT: All right. But we had a 42 -foot boat, so I do understand, so -- and we had many of them that put their boat up against the dock just the way I'm saying, which was perfect, because with the rivers -- waters and everything, it's probably even a little bit easier than to try and back out into something that's trying to move you the other way. And so that's what I was asking, if you could -- for the bigger boat, if they put it out there and just -- I don't know for the second boat -- to go -- they really wouldn't need to be going into the setback. MR. HALL: With the lift? COMMISSIONER EBERT: With a lift or even -- if on the end. If you park the boat there in a lift, to me there's plenty of room. COMMISSIONER BROUGHAM: Tim? MR. HALL: Yes, sir. COMMISSIONER BROUGHAM: Do I understand that L is 22 foot and change long or -- MR. HALL: Correct. COMMISSIONER BROUGHAM: Okay. If you parked a 35 -foot boat against it, okay, you've got 13 foot of Page 82 of 87 March 15, 2012 boat hanging out one end or the other, correct? MR. HALL: Correct, right. COMMISSIONER BROUGHAM: And that was your point about servicing the boat. MR. HALL: Yes, sir. COMMISSIONER BROUGHAM: Thank you. COMMISSIONER EBERT: That's not a big deal. COMMISSIONER AHERN: Mark had to step out for a minute. Is there any other questions from any of the Planning Commission members? COMMISSIONER SCHIFFER: Well, let me just ask. Ray, the requirement that the boats not exceed half of the property line, is that a -- you know, what's the strength of that? And don't tell me just one item on a checklist. I mean, isn't the intent that this board, we give approval of things in these boat docks extensions, that these are some conditions that have to be met? Is there -- essentially, they're stating that they don't want boats more than 50 percent across the back of a house, correct? And I think they're -- probably a legacy of that is your wharf docks, you know. MR. HALL: 1, actually, have asked the same question. I don't know if it has to do with the amount of shoreline that the vessels take up or how far out they go. If you have a -- we're trying to figure out what the old intent of that criteria was. And in this case, if it was associated with view, I could see where they wouldn't want a long boat perpendicular to the shoreline because, again, it sticks out further. Leaving it to half the length of the shoreline then, essentially, gives you a 45- degree view angle if the boat is in the center of the property. So I don't know if when those were established if it was for keeping the shoreline open or for actually limiting the protrusion. We never have been able to really figure that out. MR. BELLOWS: And I'd just like to add we're working on an LDC amendment for boat docks. And we were discussing this particular criterion, and we're thinking about eliminating it because, as Tim indicated, there's -- I think have been a misapplication of that. We've been using it as length of the boat not to exceed 50 percent of the width, but I think a better case could be made that you're trying to regulate how much lot frontage is being taken up. But we are working on that language. Right now, I think the way staff has been applying it -- and in this case I'm reading the staff report. But we're saying it doesn't meet that criteria anyways -- criterion anyways. CHAIRMAN STRAIN: Okay. Are there any other questions of staff or the applicant? (No response.) CHAIRMAN STRAIN: Okay. Well, thank you. We will close the public hearing and entertain motions. Let's start with the variance. Is there a motion on the variance? COMMISSIONER VONIER: Yes. CHAIRMAN STRAIN: Bill? COMMISSIONER VONIER: I move that we deny the variance. COMMISSIONER SCHIFFER: I'll second that. CHAIRMAN STRAIN: Okay. Motion's been made for denial and seconded. You need to state reasons because this will go -- the variance goes to the Board of County Commissioners, I believe, for a final -- or the boat dock. COMMISSIONER VONIER: I think, basically, we're compounded a felony. If the state demanded that that section of the dock be removed because it was encroaching, for us to agree to put a permanent structure back in the same place, I think, is wrong. CHAIRMAN STRAIN: Okay. And -- COMMISSIONER SCHIFFER: My reason is that there was never a hardship develop. The hardship is you can't lift your boat out of water, so I don't think that's a good enough reason for a variance. And also, when you do apply for a variance, the person I think of is the person that actually honors the code and builds his stuff without variances, and I don't think it would be respectful to those people if we allowed them to put structures in the side setback just so they can lift a boat out of the water. CHAIRMAN STRAIN: Anybody else? (No response.) CHAIRMAN STRAIN: I'll be supporting the motion for hard -- I don't see the hardship in this particular Page 83 of 87 March 15, 2012 case. That doesn't mean I'm not going to support the boat dock extension. But in this case the variance just -- I can't see the justification for it, so -- anybody else? (No response.) CHAIRMAN STRAIN: Okay. All those in favor of the motion, signify by saying aye. COMMISSIONER VONIER: Aye. COMMISSIONER SCHIFFER: Aye. COMMISSIONER AHERN: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER EBERT: Aye. COMMISSIONER KLEIN: Aye. COMMISSIONER BROUGHAM: Aye. CHAIRMAN STRAIN: Anybody opposed? COMMISSIONER HOMIAK: Aye. CHAIRMAN STRAIN: Okay. Motion carries 7 -1, make note that Mr. Midney had left earlier, so he wasn't here for this particular application. Now for the boat dock extension. Does anybody -- COMMISSIONER AHERN: I'll make a motion to approve BDE- PL2011 -- 1409 (sic). COMMISSIONER SCHIFFER: And I'll second that. CHAIRMAN STRAIN: Motion made and seconded. Discussion? COMMISSIONER SCHIFFER: I see no problem with them adding a boat lift on the outside of the deck. Obviously based on the last motion, they can't put it on the inside. So that has to be removed. CHAIRMAN STRAIN: Tim, you wanted to jump in with something? MR. HALL: I'm sorry. If that is the direction that the board wants to go -- and I don't know if we're able to do this or not, but if we have to contemplate putting the larger boat on the outside, then the extension that we've requested may be two feet too short. Can we add two feet to the extension? CHAIRMAN STRAIN: No, good point. I'd rather see you not have to come back through a process for two additional feet, because you'd still be inside the outside mooring pilings that are still there. MR. HALL: Yes, sir. CHAIRMAN STRAIN: So it would be a less intensive use than the maximum. Does staff see any problems with that if it's considered? MR. BELLOWS: If the request for an extension is greater than what was advertised, we'd have to readvertise. CHAIRMAN STRAIN: Oh, that's a good point. It's lesser than what's there, but it may be greater than what was advertised. MR. HALL: And that was my question is I don't know if we can do that or not. CHAIRMAN STRAIN: Heidi? MR. HALL: I mean, if -- MS. ASHTON- CICKO: Well, it's been advertised for 34.6 feet. If the petitioner is okay with amending it here and increasing it to 36.6, then I'm okay with it going to the Board of County Commissioners with the 36.6 if it's acceptable -- MR. HALL: Except a BDE doesn't go to the board. CHAIRMAN STRAIN: No, this one stops here. MS. ASHTON- CICKO: Oh, it stops here. CHAIRMAN STRAIN: The variance goes to the board, but the boat dock extension doesn't. Now, since they're going there with a variance anyway, they could appeal our decision on the boat dock extension to request the two feet in front of the board. MR. HALL: I'd rather just -- if it is an issue, I'd rather take what I can get right now. COMMISSIONER SCHIFFER: Let me ask -- Ray? While they're side - barring -- MS. ASHTON- CICKO: Since this is the -- I wasn't thinking. And since this is the final determination here, if you want to add the two feet, I'd suggest that we readvertise and hear it again. It's late. Sorry, I wasn't thinking Page 84 of 87 March 15, 2012 about the final -- finality. CHAIRMAN STRAIN: Brad. COMMISSIONER SCHIFFER: Ray, since we're considering the dock, now all of this stuff is grandfathered in, correct? MR. BELLOWS: Currently it's grandfathered in under its current L shape. COMMISSIONER SCHIFFER: The piles are part of that grandfather. MR. BELLOWS: Correct. COMMISSIONER SCHIFFER: So, essentially, the state said that this dock system, this dock facility is allowed to go out to those existing piles, correct? MR. BELLOWS: Without a lift. COMMISSIONER SCHIFFER: So why don't -- well, why don't we say, based on that they don't need a boat dock extension because we could deem it that they could build a lift within the geometry of those existing piles? MR. HALL: Because your code says that the boat lift is a new structure, and because there's no BDE currently in place, we have to get the BDE now. If there was a BDE in place that went out to those pilings, that would be possible. But there is no BDE in place right now. COMMISSIONER SCHIFFER: If what you said is true, then all that stuff you fed us before is crap about the boat -- dock being okay. I mean, the piles are just as much of this boat dock facility as the dock. MR. HALL: I agree. But if I wanted to -- if I wanted to go out and move one of those piles, I would still have to come in for a BDE because there's not one existing. I'm changing the -- I'm changing the grandfather footprint. COMMISSIONER SCHIFFER: So we couldn't determine that if he stays within the -- in other words, he's essentially grandfathered in the extension as far as these piles already, and if he works within those, he doesn't need a boat dock extension? MR. BELLOWS: By adding the boat lift is adding a new structure. And under a current code, he would need to get the boat dock extension. Unfortunately, you didn't advertise for that situation, and if he wanted, he'll have to readvertise and come back to you. MR. HALL: I would rather -- I would rather go ahead and put forth the extension as we've asked for it. And if it becomes necessary based on the boat that we have to extend, then we'll just have to look at it then. COMMISSIONER SCHIFFER: Okay. CHAIRMAN STRAIN: Did you have something, Melissa? COMMISSIONER AHERN: No. I was going to say, you don't want us just to continue it and get the next two -- CHAIRMAN STRAIN: He'd have to readvertise it. COMMISSIONER AHERN: Right, but -- CHAIRMAN STRAIN: I'm not sure you can continue something that's been advertised. MR. HALL: We'll go with what we have now. COMMISSIONER AHERN: Then my motion stands. CHAIRMAN STRAIN: Okay. So a motion's been made and seconded. Is there any further discussion? (No response.) CHAIRMAN STRAIN: The motion was to approve boat dock extension as submitted. COMMISSIONER SCHIFFER: Well, but, obviously, not allowing the one boat in the side setback. CHAIRMAN STRAIN: That's not a boat dock extension. COMMISSIONER SCHIFFER: That's not part of the extension. Okay, good. It is more than 20 feet out. CHAIRMAN STRAIN: Ray, did you guys -- I mean, just give me a minute to pull it up, I guess. Did you, under your boat dock extension, consider that side -- oh, yeah, it's there. COMMISSIONER SCHIFFER: Yeah. MR. BELLOWS: Yeah. I think we can just clarify the boat dock extension -- CHAIRMAN STRAIN: Yeah. Without a variance you can't have it. MR. BELLOWS: That's correct. But we can clarify that for consent. CHAIRMAN STRAIN: The motion then would need to be specific. The motion is made to approve the boat dock extension for the waterward -most lift as shown on this plan and not the lift that is within the easement area. Page 85 of 87 March 15, 2012 MR. BELLOWS: Correct. CHAIRMAN STRAIN: Okay. COMMISSIONER AHERN: So amended. COMMISSIONER SCHIFFER: Okay. And I'm good with that. COMMISSIONER EBERT: Can I ask a question. That goes out beyond 20 feet then? CHAIRMAN STRAIN: What does? COMMISSIONER EBERT: This whole thing -- CHAIRMAN STRAIN: Yes. COMMISSIONER EBERT: -- the extension. CHAIRMAN STRAIN: Yeah. It would be out to 54.6 feet. COMMISSIONER EBERT: Okay. CHAIRMAN STRAIN: Because it's already -- the dock itself was already out to 40.8. So they're just simply adding a lift. And the only lift that we're recommending for approval is that lift at the end of the dock. COMMISSIONER EBERT: Okay. MS. ASHTON- CICKO: And you'll get a revised site plan that will remove that list for the consent agenda, correct? MR. BELLOWS: Correct. CHAIRMAN STRAIN: Okay. Motion's been made and clarified. The discussion, I hope, is over. All those in favor, signify by saying aye. COMMISSIONER VONIER: Aye. COMMISSIONER SCHIFFER: 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 8 -0. Thank you all. We got through another one. Old business, I don't see any. New business? Public comment? Well, you have a right to public comment. Heidi, does this have to be new subject, or can they still comment on stuff we already heard? MS. ASHTON- CICKO: Under public comment? Yeah, they can comment on whatever they want. CHAIRMAN STRAIN: Ma'am, go right ahead. Please identify yourself MS. EVANS: Joan Evans again with a comment. The one thing I wanted to say was when I spoke with the man called Earl Davis, Old Man Davis, that was the original owner of my house, he watched both sides like a hawk. And I know for a fact -- it was in the mid'80s -- there was a dock put up where Art lives now that didn't have a permit, and they made him tear it down completely. And the reason that there was never a boat put out where the pilings are was because Old Man Davis said to Lempka, don't you dare put a boat there. Everything's illegal. If you do, you won't (sic) regret it. CHAIRMAN STRAIN: Okay. Thank you. Anybody else? (No response.) CHAIRMAN STRAIN: It doesn't look like it. So with that, motion to adjourn? COMMISSIONER A14ERN: So moved. COMMISSIONER KLEIN: Second. CHAIRMAN STRAIN: Seconded by everybody. All in favor, please signify by saying aye. COMMISSIONER VONIER: Aye. Page 86 of 87 COMMISSIONER SCHIFFER: Aye. COMMISSIONER AHERN: Aye. CHAIRMAN STRAIN: Aye. COMMISSIONER HOMIAK: Aye. COMMISSIONER EBERT: Aye. COMMISSIONER KLEIN: Aye. COMMISSIONER BROUGHAM: Aye. March 15, 2012 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 5:3 8 p.m. COLLIER COUNTY PLANNING COMMISSION MARK 3TRAIN, CHAIRMAN ATTEST DWIGHT E. BROCK, CLERK These minutes approved by the Board on `, _ S It- , as presented v or as corrected TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING BY TERRI LEWIS, COURT REPORTER AND NOTARY PUBLIC. Page 87 of 87 INC.,