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EAC Minutes 07/12/2000 RJuly 12, 2000 TRANSCRIPT OF THE MEETING OF THE ENVIRONMENTAL ADVISORY COUNCIL Naples, Florida, July t2, 2000 LET IT BE REMEMBERED, that the Environmental Advisory Council, 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: ACTING CHAIRMAN: Thomas W. Sansbury Jack Baxter Ed Carlson Michael G. Coe Alexandra Santoro J. Richard Smith NOT PRESENT: M. Keen Cornell ALSO PRESENT: Stan Chrzanowski, Senior Engineer Stephen Lenberger, Environmental Specialist, Development Services Bill Lorenz, Natural Resources Director Patrick G. White, Assistant County Attorney Page I July 12, 2000 ACTING CHAIRMAN SANSBURY: Good morning, everyone. Mr. Cornell could not be with us this morning, so I would appreciate it if you all would bear with me; first time I have served as chairman of this body. Determine if we have an agenda. Steve, are you going to call the roll? MR. LENBERGER: Yes. Baxter?. MR. BAXTER: Here. MR. LENBERGER: Cornell will not be here, as previously mentioned. Carlson? MR. CARLSON: Here. MR. LENBERGER: Coe? MR. COE: Here. MR. LENBERGER: Sansbury? ACTING CHAIRMAN SANSBURY: Here. MR. LENBERGER: Santoro? MS. SANTORO: Here. MR. LENBERGER: Smith? (No response.) ACTING CHAIRMAN SANSBURY: Okay, we have five members present. That declares a quorum, correct? MR. LENBERGER: That's correct. ACTING CHAIRMAN SANSBURY: Do we have any additions to the agenda at this point? MR. LENBERGER: None. ACTING CHAIRMAN SANSBURY: Very good. Minutes from the June 7 meeting. Do I see any additions, corrections, deletions, anything of that sort? MR. CARLSON: This is where you find out who read the minutes. I believe there's a correction in order. ACTING CHAIRMAN SANSBURY: Okay, sir. MR. CARLSON: Bottom of Page 40. ACTING CHAIRMAN SANSBURY: Bottom of Page 40. Well, that's true, I don't think Mr. Constantine was here at this time, so I think that ought to be revised to Chairman Cornell. I don't think Tim could be in two places at one time. I think he was probably on the radio at that time. Okay, hearing any other changes, do I hear a motion to Page 2 July 12, 2000 approve the minutes? MR. COE: I make a motion to approve the minutes. MR. CARLSON: Second. ACTING CHAIRMAN SANSBURY: Favor?. Opposed? (No response.) ACTING CHAIRMAN SANSBURY: Moving right along. The growth management update. MR. LORENZ: For the record, Bill Lorenz, natural resources director. The two committees are kind of still plugging along. I guess there's not too much of a difference from the last time I gave you an update, other than the fringe committee has pretty much finalized the evaluation methodology. The lands committee has reviewed that matrix. We've proposed a few minimal changes that they've requested. We will be meeting with them on the t 7th. The fringe committee meeting today that we will have, we will be covering one item that I know the EAC has been interested in, and that is Jean Merritt, our public information coordinator, will be presenting the fringe committee with a public information strategy. So we can begin to formalize that part of it. Because now we're coming down the road a little bit more in terms of substantive material. They'll be able to start working with the public. So they'll get to hear that strategy. (Mr. Smith enters the boardroom.) MR. LORENZ: Once he finalizes that, I will transmit it to the EAC to you all so you can have that when we finalize that, because you were interested in having a workshop yourselves at some point. ACTING CHAIRMAN SANSBURY: Bill, let the record show that Mr. Smith has arrived, please. MR. LORENZ: The other item that the fringe committee will be working on now is actually the protection mechanisms. Staff will begin to brief the committee on the strategy that we'll propose, which will include county-wide minimum standards that we have to adopt for the final order. That will address wetlands, other natural habitats and listed species concerns. So we will be working on the county-wide minimum standards. Then we'll be getting the fringe committee to look at what additional standards will be needed, given the special and unique Page 3 July 12, 2000 situations in certain fringe areas. So that will be the process that will be unfolding. And we'd like to be able to have some specific set of protection mechanisms for the committee the latter part of this month and through August. ACTING CHAIRMAN SANSBURY: Very good. Any questions for Mr. Lorenz? Hearing none, thank you very much. MR. LORENZ: Thank you. ACTING CHAIRMAN SANSBURY: Okay, we have two land use petitions; the first one being the Madeira PUD. Why don't we swear everyone that is going to be speaking on this, if we could, please. Please stand and -- (Speakers were duly sworn.) MS. MURRAY: I'm Susan Murray, chief planner with planning services department. The subject site is an undeveloped 145.93 acre parcel, and it's located in Sections t3 and 24, Township 48 south, and Range 25 east. It's bounded on the south by Willoughby Acres, on the east by Palm River Estates and Imperial Golf Course Estates -- I'm sorry, that's on the west. And on the east, by the new section of Livingston Road. The petitioner is requesting a rezoning from RSF-3, an agricultural, to PUD in order to develop a residential community at a density of three dwelling units per acre. Development of the site generally will consist of up to 438 dwelling units upon completion. And those dwelling units will consist mostly of single-family, duplex and zero lot line single-family dwelling units. The proposed density of three dwelling units per acre is consistent with the Collier County Growth Management Plan in that this property is located in the urban residential subdistrict, which allows for a base density of four. And the applicant is requesting three. Access to the site will be provided from the future Livingston Road extension. I am told this will be a gated community. If you have any other questions with regard to land use and zoning, I'd be happy to answer them. I know there's some -- you probably have a lot of questions about the environmental issues, and Steve and Stan are here to answer those. Page 4 July 12, 2000 ACTING CHAIRMAN SANSBURY: Questions? Hearing none. MR. LENBERGER: Morning. For the record, Stephen Lenberger, development services, current planning section. Madeira PUD, as just mentioned by Susan, lies just at the north end of Willoughby Acres. The property is undeveloped. I have the FLUCS map aerial on the wall here. As you can see, there are a couple of in-holdings, people who did not want to sell their property, so there are some properties within the PUD which won't be zoned PUD. The site is vegetated with a variety of different habitats; pine flatwoods, both hydric and non-hydric. It also has an area of cypress runs through the center of the property, mixed in with hardwood forest. Basically the Palm River Slough system. And there are smaller areas of hammock and cabbage palm, things of this nature. As you can see on the aerial, there is an FP&L easement; runs north and south and is on the east side of the property. This aerial is a little older, but there also is a cleared area, and it roughly lies in this portion here. And I mentioned in my staff report, that clear area shows up in the ElS -- you know, where the gopher tortoise survey is, there's an aerial in there. As far as wetland issues, the subject property has about 82 acres of wetlands. The petitioner is going to be impacting 62 percent of that, about 5t acres. And they're going to preserve the rest of it in the slough system, the Palm River Slough, running this way. And you can see on the PUD master plan, I've indicated the area to be preserved in green, which is basically the Palm River Slough. Protected species on site were limited to gopher tortoises. Most of those occurred along this dirt road area in this portion, but there are some in this area, too, as well as a few down here. About t4 gopher tortoise burrows were found. They didn't get clear visibility on the whole site. They estimated the maximum burrows of about 28. Petitioner is proposing either -- during the time of STP either to preserve them, leave them on-site and restore some of the upland habitat to be preserved within the slough system, or to relocate them off-site. And that will be determined later during the time of the site development plan review. As far as preservation requirement, preservation Page 5 July 12, 2000 requirement is about 32 acres. Most of that is met within the slough system, and the petitioner will make up the additional acreage at the time of SDP, either in landscaping or buffers. If you have any questions, I'll be glad to answer them. The consultant is here, as well as their team environmental specialist. ACTING CHAIRMAN SANSBURY: Mr. Carlson. MR. CARLSON: So what is the balance of the acreage that still needs to be established for the preserve area? MR. LENBERGER: The slough system, 30.78 acres. Preservation requirement's about 3t.7. So it's a little under an acre. MR. COE: We just got a copy of this letter from a landowner in the area. Have you had the opportunity to review it? MR. LENBERGER: No, I have not received any correspondence from anyone. Written correspondence. I've had a telephone conversation with one person, but no one's given me any information. ACTING CHAIRMAN SANSBURY: You want to give Steve a couple of seconds to take a look at that? Shall we hear from the petitioner at this time? MR. HEDRICH: I am Brad Healrich, with Healrich Engineering, representing the developer on this project, Meridian Land Company. Basically I think the background information on the project has already been done by Susan. We did receive a copy of Art Staple's letter, and that's the letter I believe Steve is reviewing right now. And we did have some responses to that, if you would like us to read those. Art had a question about the drainage on the project. He is in the Majestic Pines subdivision, which is directly to the south of our project. Their overflow weir is at elevation t2.4, roughly 2.4 feet above their wet season water table of t 0. He had a question whether our site would be impacting it at all, and also whether we accounted for his project in our drainage design. And we did account for his project in the drainage design. And our 25-year, three-day storm elevation is at t2.47, I believe, so our 25-year level is right where their overflow is. So we do not believe that there's going to be any adverse impact on his property whatsoever from a drainage standpoint. Page 6 July 12, 2000 He had a question also about the Euclid Avenue extension, which goes past their project through the slough. And the plan is to remove this to restore the historic flow of the slough. And the existing road that goes through there was not permitted, and so it is going to be removed. And it's acting as a barrier to the historic flow right now, which could potentially cause some drainage problems to the landowners, so hopefully by removing this, which we've accounted for in our drainage design, it will improve the drainage of surrounding areas. The county has requested that we account for a second access point to the site. And at this point we just have the one coming off of Livingston Road to avoid wetland impacts. We had not planned a second access point. If we did have to -- if we were forced into doing a second access point, we would prefer to do it off of Lakeland Avenue, rather than Euclid, to avoid the main slough. And we would probably propose it to be an emergency access only where it would be a gated access that only the fire department and ambulance services could get through. So -- because one of his other questions was about traffic going through the subdivision. And apparently it is pretty over-taxed right now, and we do not plan on adding to that. So just so he knows, it is -- would only be for emergency only, and that's if we have to do it. He also had a question about exotic vegetation removal. And obviously the exotics will be removed. And if there are any exotics that are too close to any of the residences, he was concerned that if it was going to be done as a kill in place method, that the trees could eventually fall over and damage some of the property. And any of the trees that are too close to any existing homes or existing properties would be removed and replanted with cypress and whatever type of species that we're showing in there. MR. COE: My definition of removal means pick it up, remove it, put it in the trash can, the dump, whatever it may be. Your definition is different? MR. HEDRICH: Well, there's several types that you can do that are allowed. When you're doing a removal and replanting, that is what happens. There's some other cases where the trees Page 7 July 12, 2000 are cut and put with an herbicide that kills the tree and they basically let it decay in place. And in this case, because of the proximity of homes, that that would not be the method that's used on this particular -- MR. COE: So no place on your property is anything to be left; they're actually going to be removed from the property? MR. HEDRICH: If it's too dense of an area, yes. If there's an area where there's maybe one melaleuca tree in the middle of a large cypress strand, rather than going in there and trying to drag that out and potentially harming other cypress trees, and it was not in close proximity to existing homes, there might be some cases where that is done. MR. COE: And who makes that determination? MR. HEDRICH: The environmental scientist and Collier County would make that decision. MR. COE: So Collier County would be able to go in there and say you can leave that tree? MR. HEDRICH: Yes. Through the site development plan, we would have to give them our methods of exotic removal, and we would recommend that, like we said, anywhere where it would be close proximity to existing homes, or if machinery is able to get in there to get it out, that that would be the method. If there was a case where it would do harm -- do more harm than good, where we could not get to it because of cypress trees or some other kind of protected species in the way, we would probably prefer to do the least harmful method. And I think his last question -- I guess he was under the impression that we hadn't taken into account his project in our drainage design. I'm not sure where he got that, who he talked to that gave him that information. But we have accounted for it in his design. We have looked at the Majestic Pines drainage plans and have concluded that there will not be any adverse drainage impacts to his plans. ACTING CHAIRMAN SANSBURY: Which of these two out-parcels is Mr. Staples' property? MR. HEDRICH: He's actually not in an out-parcel. If you look the map over there, the southwest and lower left-hand corner, he is directly underneath that to the south of that. So he is east of Euclid Avenue in one of the homes that is backing up to one of the preserves. Which we do intend to maintain and enhance. Page 8 July 12, 2000 There's a lot of melaleuca trees down in his area, which would be removed and replanted with cypress and other appropriate species. ACTING CHAIRMAN SANSBURY: In looking at the exhibit, the two out-parcels, especially the lower left out-parcel, looks to me would be critical to the flow of the -- what is it, Palm River Slough? MR. HEDRICH: Yes. ACTING CHAIRMAN SANSBURY: Steve, do we have any control over what happens in that one, in a small piece of property, what will have to happen when somebody tries to do something with that? MR. HEDRICH: That is actually the lowest, elevation-wise, portion of the slough. And unfortunately our client has tried to purchase that and was not able to receive any response whatsoever from the property owner. So what we're doing from a water management design, we're concerned that we don't want to raise their water levels, so we've done an existing analysis of where the water levels are. And we're maintaining those levels in a proposed situation. Basically the rule that the Water Management District gives us is any existing water that goes through that area, you're allowed to maintain that same water flow. And consequently, you're also not allowed to block off any flow from somebody else. So if he did come in there later and wanted to develop it, it would be very difficult because it is primarily wetlands, so -- but if he did do it, he would have to account for the existing flow going through his property. MR. LENBERGER: Regardless of what -- I don't know what the zoning is on that particular parcel, but he still has to get permits from the county and we would still send him through the District. ACTING CHAIRMAN SANSBURY: Okay. Do we have any other questions for the petitioner?. MS. SANTORO: On the gopher tortoises, who would you be working with at the time when you're developing the site, so that -- who will you -- who will make the determination that it should be moved or left or-- MR. HEDRICH: The plan right now -- Steve had mentioned that there was 28 burrows. And I don't want to misspeak, but I Page 9 July 12, 2000 believe it's -- they estimate at 50 percent. I guess gopher tortoises like to dig multiple burrows, so we're estimating somewhere around t4 gopher tortoises. And as part of the slough, there is over an acre of uplands in there where we would like to keep them on-site and where that area would be fenced in during construction so that they don't get harmed, but that in the future we'd prefer to keep them where they are. And from talking to our environmental scientist, Jack Abney, and his speakings with some of the permitting agencies, that we do believe that we have another area on-site to keep them. MS. SANTORO: There's been some controversy about that. Will you be working with the Florida Fish and Wildlife group as well? MR. HEDRICH: Yes, yes. That's who we would need to go through for permitting on that. And I do understand that there's some issues about if there's enough of them to maintain long-term survivability, I think is some of the concerns. And obviously we'll have to work with them on that. But I know there's also other concerns where they don't -- sometimes they don't like relocating gopher tortoises because of the potential hazard; if they had some kind of disease, they could be moved to a larger area and actually kill off the population where they're moved. So in this case, we would prefer to keep them on-site, if possible. MR. COE: When you say keep them on-site, you're talking about moving them from one place on the site to another place on the site; is that correct? MR. HEDRICH: Correct. MR. COE: So In other words, they could be moved to Egypt as well as on your site; is that correct? MR. HEDRICH: Yes. Right now where they're living, Stephen had mentioned, is there's a -- there was the non-permitted road that was built, and gopher tortoises tend to go towards the highest areas. And the road base is -- you know, it sits higher than the existing ground around it. So they tend to gravitate towards that. Now, historically they probably were not in those areas until that road was built. ACTING CHAIRMAN SANSBURY: Mr. Coe, I doubt if we could Page 10 July 12, 2000 find very much suitable habitat in Egypt. MR. COE: That's true. So what you're saying, you're going to put them on this old road? MR. HEDRICH: No, no, no. There's about -- in the very middle of the slough, between the northeast and the central slough there, there's about an acre or so of upland piece that we would target to fence them in during construction. And once construction is complete, we would allow them to move where they wanted to go. But obviously, you know, we would have to clear that through the Fish and Wildlife, if they determine -- that they've done studies that they would prefer to move them somewhere else, we would obviously comply with that. MR. CARLSON: I have a question, Mr. Chairman. ACTING CHAIRMAN SANSBURY: Yes, sir. MR. CARLSON: Okay, on this project we have over 81 acres of uncontested jurisdictional wetland. MR. HEDRICH: The number sounds right. MR. CARLSON: Well, staff report says 81.7. You propose to impact 62 percent of those. MR. HEDRICH: Yes, only-- MR. CARLSON: And this enables you to meet the requirement for a preserve area, as per county regulations. But would you please walk through how you would justify this when you go through the sequencing of minimizing and avoiding impacts to wetlands? MR. HEDRICH: Sure. MR. CARLSON: How you can justify encroaching on the existing flowway. MR. HEDRICH: Okay. It's a very complicated process. Part of it is -- comes from the engineers' creed where we're set to protect the self -- the health, safety and welfare of the public. And obviously the main slough, the Palm River Slough going through the site, is very important. And that area was targeted as an area that had to be saved, that we wanted to save. There's very large cypress trees in there that the client wanted to save. It actually becomes an amenity. People don't want to live in a development that doesn't have -- that is not environmentally friendly anymore. So that was our first target there. Page 11 July 12, 2000 The other target that we looked at was there's several gradations of wetlands, and they range from extremely poor, which are t00 percent melaleuca infested and Brazilian pepper infested. And from there you go up to several gradations of the percent infested, as with exotic species. So we targeted the areas that are extremely infested, and there's about 45 to 50 percent of those wetlands that were impact -- or of the total wetlands that are very, very poor quality. There's another maybe 20 to 25 percent of wetlands that are low to medium quality, which means that they're t0 percent to 50 percent exotics. So basically all the wetlands that we're impacting are not the highest quality wetlands that you've seen. And I know that people like to use the broad label of wetlands to describe everything from the most pristine cypress slough that you've ever seen to a t00 percent melaleuca area. They're used with the same label. And I think sometimes to the developer, that can be unfair. So that -- but that was our basic approach on how we come up with what to target for how to minimize our impacts. The next step is geometrics. The county requires a certain width of roadway; they require certain lot dimensions that are their minimum standards. And that's how we came up with how much of a slough we're able to save. The District and the Corps, they like for a wetlands system to be 2 to 300 feet wide as a minimum to be a long-term viable survivability. We have some sections of our slough that are 800 feet wide. So we've really gone to extra efforts to try to save as much as we possibly can. Another issue is -- comes down to mitigation banking. And we do have the -- part of our mitigation design is to use the Panther Island Mitigation Bank. And we do have the developer and some people that work for them here today. But just a real quick issue is mitigation banking. It's a federally mandated type of mitigation that basically says that it's better to save 2 to 3,000 acres of wetland habitat that is not surrounded by existing development, it has much higher rates of long-term survivability. The Panther Island Bank is out near the Corkscrew Preserve, which is a very vital area that should be saved on a state level and a national level. So rather than look at saving 20 or 30 or 40 acres of on-site Page 12 July 12, 2000 wetlands that are very poor quality or medium quality or low quality, we've targeted the important areas and we're going to turn them into very pristine areas through hydrologic enhancements and removal of exotics. And the rest of it we're going to -- our client is spending upwards of a million dollars to help ensure the survivability of lands adjacent to Corkscrew and the Panther Island Mitigation Bank, which is something that is very important for the public in the long-term viability. If we save plants in these areas here, it's going to be completely surrounded by high-speed roadways, existing development. Besides our development, there's a school slated to the north of us. I believe Ronto is doing a development up there also. Mediterra is another development. Livingston Road is going to be a two-lane road now, but it's going to eventually be a future six-lane road. It's going to be a very high-speed road. And our wetland slough historically, 1-75 and FP&L about 40 years ago or 50 years ago basically cut off the historic flow that used to go through this wetland. So even though we know it's a very important area that we'd like to save, we are saving the most important part for the -- as it relates to public health, safety and welfare. But we also understand that we have to be realistic. And this is an area that I would rather see developed and come in an area where there already is development, rather than having a project like this not be possible, and then it would force people to go out into all the ag. fields out by Corkscrew and people would be forced to be doing development out there, which I think is probably not good. MR. CARLSON: I have the floor. ACTING CHAIRMAN SANSBURY: You got it. MR. CARLSON: I don't think this project's going to slow down the development of the ag. fields around Corkscrew. And we have a big problem in this county and that is, you know, if you sit up here and you have permit application after permit application coming at you with really very significant losses of wetland, each project, one after the other, we see it every time we meet up here. We're losing wetlands. Even if they're infested with some exotics, they still attenuate flooding. Even if they have exotics in them, don't they? They still attenuate flooding, they still improve water quality and they still have very useful Page 13 July 12, 2000 functions. And I just don't see how you can, you know, take out 62 percent of the wetlands in a project, especially since it has a historic flowway, without looking at -- I mean, aren't there options like stacking people up, you know, having multi-story dwellings so you impact less area? MR. HEDRICH: There are. This target -- or this project is targeting single-family development families that don't want to live in high-rises. So on this particular project, we didn't look at that. But one thing we did look at was like we said before, the geometrics of what would fit with a lot, a road and a lot. And we also had to have lakes to -- there's a lot of drainage problems in the area downstream of us, and the Water Management District has asked us to further reduce the allowable discharge rate to a .03 CFS, or cubic feet per second per acre, which is an extremely low rate. And in order to do that, we had to dig a significant number of lakes on the project in order to meet those discharge rates and also to improve the drainage of the surrounding properties. If we did high-rise development and discharged directly into the slough without digging lakes, it would raise the water elevations in the slough, and then people like Art Staples would have drainage problems on his property. What we've done is we've used the slough as a storage area. It's the lowest wetlands on the site. They're down around elevation t0, t0 and a half. The other wetlands on the site, they're very poor quality, because they're up at around elevation t3, t4 even. And there's some small ponding going on. And the regulatory agencies have, in the last t 0 years, really changed their rules on what is considered a wetland. There's some areas here that I believe we have some pictures. I won't bring them out at this point. There's some pine tree areas that have some little wetland ground covers on them that t 0 years ago were not a wetland. And now because of the ground covers, they are considered a wetland. And that's why I was talking before about the gradation of wetlands. It's really gotten very difficult in Southwest Florida to have areas that are not considered wetland. There's some definitions of wetlands about how close the water surface is -- or Page 14 July 12, 2000 the water levels are to the surface for more than 21 days in a year. And I think everybody knows that during the wet season the water tables are extremely high. And you could just about classify entire Southwest Florida as a wetland. So -- MR. CARLSON: Well, I really -- you lost me on that one. MR. HEDRICH: Okay. MR. CARLSON: You're saying that 1-75 cut off the flow to this area but the wetlands have increased? MR. HEDRICH: Because the rules have changed on what is considered a wetland. If you look at the U.S. quadrangle maps that show -- that were done by federal agencies, only the main wetland slough shows on there as a wetland. And that's a federal agency. Back when those were done, no other areas were considered wetlands. MR. CARLSON: Well, those things have to be field checked. That's the spirit of that sort of map. MR. HEDRICH: I agree. And I'm not disputing that they are or are not wetlands. We all agree that they are. What I'm disputing is the label of wetland being used broadly, where there's many gradations of wetlands. And they actually -- we've spent many months rating each wetland based on -- there's several criteria, and I would probably have to have my environmental consultant explain it, but basically there's -- it relates to hydrology, it relates to what type of vegetation is there, and it rates each classification in there. And they actually do what's called a Wetland Rapid Assessment Procedure, a WRAP analysis, and it comes up with a rating system of these wetlands. So we've used very scientific ways to rate these wetlands and try to select the least amount possible to impact. But, you know, as Collier County continues to grow, certain areas have to be targeted for potential growth. And I think it's better to have growth west of 1-75 than to allow it to go east before you look at the alternatives to the west here. MR. CARLSON: I'd also like to comment on your comments about mitigation banking. MR. HEDRICH: Okay. MR. CARLSON: My understanding is that the spirit behind mitigation banking is not simply to look at big functional wetlands where we can, you know, flippantly compensate for Page 15 July 12, 2000 wetlands that should be developed in the urban area. The spirit behind mitigation banking is that you still go through the same sequencing of avoiding and -- minimizing and avoiding wetlands. And when you can no longer avoid and you have these inevitable impacts, which happens when you build roads and things like that and you have to put a road through somewhere, that then you resort to a mitigation bank. And I would caution everyone on this board to think that the Panther Island Mitigation Bank is out there so that we can simply develop more wetland in the urban zone. That's not the spirit behind the bank. That's not the way it works. It's supposed to be for unavoidable wetland impacts, you can resort to a bank. MR. HEDRICH: Let me respond to that with one other comment, and it's probably something I should have mentioned earlier. Our client on this project -- this project actually comprises about 20 pieces of property that are all either two and a half acre or five-acre pieces. And there are actually areas that were supposed to be part of Willoughby Acres, and they were supposed to be developed as such, and they were all individually owned. And our client spent over a year grouping them all together. And we had pre-application meetings with the Water Management District, Army Corps of Engineers and Collier County where they -- the first thing they said was they voiced their concern about saving this Palm River Slough, which by grouping all these 20 pieces of property together, we've done that. We've been able to ensure that we're going to make the drainage an area much better than it has been in the past. So, you know, I want to save as much as possible, but at some point it comes down to a public health and safety issue with drainage in the area. There's a couple of landowners that live in there now that their roads are significantly below even the 25-year elevation. And if there ever was any kind of flooding, they would have trouble getting out of there. But back to the number of properties, it was very difficult to group all these together. If this project didn't happen the way it is -- the way we've shown it, you would be getting 20 applications from individual landowners wanting to put five, t0 homes on each of these. And, you know, it's probably going to cause more a Page 16 July 12, 2000 fragmented wetlands slough if that did happen. The areas especially to the southwest there, it's almost entirely melaleuca. And because of that, you know, you have to allow for the drainage to flow through. But because it is almost entirely melaleuca, it would be very difficult for regulatory agencies to prevent somebody from developing it. They could put large culverts going through, letting the water flow go through, but they could still put homes on it. ACTING CHAIRMAN SANSBURY: A question, if I could. The portion of the Palm River Slough or flowway here that we are preserving in here, how does this project protect the viability of that? Does it increase it, decrease it? What are you going to actually be doing to the slough itself and, you know, how is it going to affect the hydro period in the slough and what have you? MR. HEDRICH: Right now what happens is the only limiting -- the only thing that limits water from leaving the slough right now is the unpermitted roads that were put across there. They're acting as diking effects, which for the wetlands, it helps the wetlands. But the problem is, is hydrology-wise it adversely impacts the surrounding landowners. We've done an existing and a proposed analysis of the wetland slough and the entire surrounding areas. While we would not be greatly increasing the water elevations within the slough, due to the surrounding landowners, we don't want to flood them out, we will be significantly increasing the hydro period, as you call it, how long the water stays in there. Right now it stays in there for maybe a day or two. You get a very hard rain storm, you go in there and it's almost bone dry a couple of days later. What we're doing now is, what the Water Management District likes us to do is to target a t4 or 21-day period where that water remains in there for that long. So basically that's what environmentalists have determined makes a wetland system viable in the long term is to have that long of a hydro period. And that's where our water modeling is done. We've actually put a control structure and a berm on the western side of the slough to allow us to reduce our discharge rate to what they wanted, and also to improve the wetland slough. And we've also done a large overflow weir to ensure that no one gets flooded Page 17 July 12, 2000 out. ACTING CHAIRMAN SANSBURY: exotics and -- MR. HEDRICH: Yes. ACTING CHAIRMAN SANSBURY: also? MR. HEDRICH: Correct. ACTING CHAIRMAN SANSBURY: And you're removing -- doing some replanting Yes, sir, Mr. Coe. MR. COE: Have you received any comments from South Florida Water Management? MR. HEDRICH: Yes, we have. We submitted our initial application roughly five weeks ago. The Water Management District has 30 days to review a submittal. Unfortunately, they're very understaffed. And what typically happens on the first go-around is they don't have adequate time to review the project, they spend maybe two or three days. And I don't know what they spent in this case, but they came up with a lot of comments that had already been addressed in the submittal. And for those that aren't familiar with the permitting process, there's -- it's not a we-submit-one-time. They approve or deny. It's a we submit, they say well, can you explain this, can you give us a little more information here, and it's a back and forth process. And we're at the very beginning stages of that. So I'm sure you've read all those comments. And there are some in there that have already been addressed. We are providing them with more information. MR. COE: Is it in this package that we have here, all the comments from South Florida Water Management? MR. HEDRICH: I'm not sure if -- it wouldn't have been something that we submitted, but I know that they did copy Collier County on that. So I was under the impression that everybody would have a copy of that. MR. CHRZANOWSKI: I sent copies out of the comments that I got. If you mean are there responses to the comment in the packet or is the information that they say answers these questions in the packet, I don't know that. MR. HEDRICH: We have not responded to those yet. We just got them maybe a week or two ago. So we're under the process of responding to those. And we've set up a meeting with the Page 18 July 12, 2000 Water Management District to go over our responses. In addition, I would like to preface it by saying that we intend to and have to follow all the Water Management District criteria about not adversely affecting surrounding properties, about making sure that our wetland impacts are acceptable by state and federal agencies, as well as protected species and all that stuff. So even though we are here today talking about this, this is not the end. If you approve it today, it doesn't necessarily mean that we can do the project at all. We have to go through the environmental resource permitting process with the Water Management District and the Army Corps of Engineers, as well as submit to the Environmental Protection Agency. So we have to follow their rules. And for any homeowners that are here, I would like to say that we are not allowed to flood you out. We don't intend to flood you out. You know, in addition, we should be improving your drainage that is there right now. We're adding a significant amount of lakes to help the potential flooding problems in the area. Our developer -- or our client, the developer, wants to be as environmentally friendly a developer as he can. He wants to try to help the surrounding landowners with their drainage problems, as well as the downstream areas. We've been held to this reduced discharge rate in essence because of all the development going on with Mediterra and Ronto. And we're a relatively small development compared to theirs, and yet we're trying to do our best to help out the drainage problems that are in Palm River. ACTING CHAIRMAN SANSBURY: Do we have any other questions for the petitioner?. One thing we need to do, and the county attorney reminded me, and I noted the other day watching the Planning Commission -- as my boring life, I sit home and watch Channel 54 -- is we need to just poll the commission here very quickly regarding any contact any of us may have had or any conflict we may have seen with this particular petition. And I just ask, have we had any contact with the petitioner prior to the time of the meeting? MR. BAXTER: None. ACTING CHAIRMAN SANSBURY: I'm hearing no. Page 19 July 12, 2000 I would like to disclose that I'm employed by Grey Oaks Development Company. It's owned by Halstead Partnership. Some of the principals of Halstead Partnership are also principals of Barron Collier Companies, Barron Collier Partnership. And Barron Collier Partnership is one of the partners in Panther Island Mitigation Bank. I don't believe there's a conflict, I will proceed with this, but I want to make that of record. I've been involved in mitigation serving with the original committee put together by the Department of Environmental Regulations in 1981, '82 with mitigation banking. I concur completely with Mr. Carlson's approach, what mitigation banking should be for. But I do not believe that that relationship creates a conflict, and that's why I will continue discussions. MR. SMITH: Mr. Acting Chairman, I also potentially was concerned about a potential conflict, and I've come to the conclusion I don't have one. I happen to own some land about -- in Section 13 about a quarter mile to the north of this project. But I thought it through and I just don't see any conflict, although I am concerned about it. But unless the attorney thinks that there's a potential for conflict, I will proceed accordingly. MR. WHITE: Assistant County Attorney Patrick White. I believe there is the need for development of some more facts with regards to the size of your holdings. MR. SMITH: It's a five-acre parcel, of which approximately two acres -- less than two acres was taken for Livingston Road. MR. WHITE: The best I can give you, Mr. Smith, at this juncture is that there is some appearance of a conflict, given that approval or denial -- MR. SMITH: That's enough for me. I'm not going to vote on this or participate. MR. WHITE: You're free to participate, but you cannot vote, if you're going to declare a conflict. And if you do so, then I'd ask that you meet with me after -- MR. SMITH: I do declare a conflict. If you're concerned about an appearance, that's enough for me. MR. WHITE: The ethics opinions indicate where there's some possibility it may enure to your benefit or loss. MR. SMITH: Correct. MR. CARLSON: Since we're bearing our souls, Mr. Legal Page 20 July 12, 2000 Counsel Person, I work for the National Audubon Society and I'm the executive director of Corkscrew Swamp Sanctuary. And there has been some discussion about the National Audubon Society some day, upon the completion of the Panther Island Mitigation Bank, perhaps annexing that onto Corkscrew. Although we have, as far as I know, no agreements on paper and have only spoken of such, a possibility. MR. WHITE: Based upon the facts you've given me, it sounds too remote and speculative to even create the appearance of a conflict. It's a different circumstance where there's a potential for some economic loss or gain, even if that is only an appearance. As Mr. Smith has circumstance. ACTING CHAIRMAN SANSBURY: comments? MR. WHITE: If I -- ACTING CHAIRMAN SANSBURY: Excuse me. MR. WHITE: -- might, Mr. Chairman? ACTING CHAIRMAN SANSBURY: Yes. MR. WHITE: If in the future any of the commission members have -- or committee members have concerns and would like to discuss them with our office ahead of time, in order to review these matters, I'd certainly make myself available to do so. Generally it's probably preferable for the applicants to kind of hear that at the beginning of a presentation. And given what the ethics statutes require as far as filling out a memorandum and matters such as that, my practice is to -- preferred practice is to have those conflict forms filled out ahead of time and have the disclosure made then. There's nothing that the statute says is wrong with the manner in which we're proceeding today. It is certainly appropriate. But I think it just kind of helps avoid any further difficulties that might arise in this process. Thanks. ACTING CHAIRMAN SANSBURY: Thank you, sir. Any other questions for the petitioner?. Is there anyone in the public that would like to address this petition? Yes, ma'am, come on up. MS. NELSON: My name is Beth Nelson. N-E-L-S-O-N. And I am here on behalf of several of the homeowners in my area. However, fortunately or unfortunately they work, so they could not attend this morning. Okay, do we have any other Page 21 July 12, 2000 We have several concerns that were just raised. And I'm sorry if I'm not all in order, because I wrote down notes as they came up. I guess the landscaping the gentleman mentioned to replace protected wetlands, I would wonder what kind of landscaping would replace wetlands. He mentioned a broad-term wetlands. In the area they're referring to, cypress heads is what the wetland refers to. Melaleuca, unfortunately being a faster growing plant, has taken over faster and has taken over the cypress heads. I bet if Corkscrew was able to annex that property, they could remove, destroy, whatever, some of the melaleuca and let the cypress heads thrive. Just a thought. The survey that was conducted on this property identifying gopher tortoise holes was conducted by the Meridian Corporation. People who live in that area, potentially we believe there are more than that, and there are other species of concern. And I have contacted The Conservancy and they would like to send an independent naturalist out to review the site. And pending the outcome of today's meeting, that would be our next step. But we would need the time to get someone out there, like I said, depending on what the outcome is today. He mentioned Art Staples' concern. I have a similar concern. However, there is no weir involved in my water flow, and those of the neighbors around me. And in the letter from Richard Thompson, he mentions the existing slough, and I'm not sure if that refers to the sheet flow that moves through our yards, but it says please revise and reroute or provide a solution to this issue. I would like the opportunity to review a revision or rerouting of this water. And like I said, as a -- as an existing homeowner, I know they have their preserve, but my slough contributes to the Palm River Water Basin, Palm River Slough, and I'd like to see how that's not going to be blocked off, that that water will be allowed to continue its natural course. He mentioned possible access through Lakeland Avenue. Lakeland Avenue does not have access to public road, that dead end extension. They don't have public access. The property owners own to the center of the road. The property was quick claim deeded back to the homeowners in t995. So that's a whole Page 22 July 12, 2000 'nuther issue to open that roadway up. And I suspect some of these wetlands -- he talked about new wetlands developing that were possibly of a lesser quality. Well, I would maybe consider the fact that these wetlands are developing in other areas because of new development in surrounding areas with higher codes, higher elevations. The water has to go somewhere, so new wetlands form. He also mentioned that some of the lots in Willoughby were going to have been developed anyway. And as I mentioned, those lots -- that's a whole separate issue. Those lots did not have access to a public road, so they were not going to be developed like that. I mean, there were other things that had to ensue prior to development of those lands. Let's see, I just don't want to miss anything, and I think that's -- the independent naturalist we'd like to have out come survey the site. I mentioned that. And I guess that's what I would like to say. ACTING CHAIRMAN SANSBURY: Any members of the council have any questions for Ms. Nelson? Would the petitioner like to address Ms. Nelson's comments? MS. NELSON: Do I take a seat then? ACTING CHAIRMAN SANSBURY: Uh-huh. Thank you. MR. ABNEY: I'm Jack Abney. I'm a biologist, consultant. I've been in Collier County t 4 years; spent t 0 years of that working with Wilson-Miller, another consulting firm. She asked a question about the gopher tortoise survey. I've been doing gopher tortoise surveys a long time, and have gotten some permits to relocate them. This site is one with a very dense vegetation. ACTING CHAIRMAN SANSBURY: If you could speak a little bit louder. MR. ABNEY: Okay. This site has very dense vegetation, probably because it's been protected from fire for so long. And I think that's why we didn't find very many gopher tortoises. I found some old remains of tortoises that had died and older burrows that had been abandoned a long time, but just not very many active burrows or even inactive burrows, as defined by the Game and Fish Commission. We do have scheduled to do a more intensive survey before we apply for a permit with the state to relocate these tortoises. Page 23 July 12, 2000 And in that effort, we will go in very close transects through the potential habitat, where it was difficult to see. Possibly every 20 or 30 feet I'll have to push my way through the palmetto and make sure that we haven't missed any burrows. Of course, when I'm out there, I don't just look for any burrows, I look for the signs of the tortoises, the little paths they leave when they have been occupying an area for a long time. And so I follow those to find the burrows. And that's the way I came up with the number I have. I don't think there are very many more burrows than we have estimated, but there could be. However many we find, they will be accounted for and they will be handled in the permitting process with the state. I think the second question she had is what kind of plantings we were going to propose. I've designed several enhancement mitigation areas on other projects, and normally what we like to do is in areas that are dense melaleuca, is remove the melaleuca entirely, get it out of the way. Because if you cut it down, it makes it difficult to replant. And so in the real dense areas, we have to get those out of the way. And then we will plant shrubs and trees, native species. Usually the agencies want us to use at least three-gallon pots of plants. Sometimes they want seven-gallon. And it's a very expensive process. But it will look nice after things take hold and start growing. It will look much better than it does now. That's all the questions I think she asked that I can answer. The rest of them -- as far as someone coming out and looking at the site, if they want to do that, I suppose the client would be willing to allow me to cooperate with that. I don't have any objections to it. ACTING CHAIRMAN SANSBURY: Okay, thank you very much. Any questions for Mr. Abney? Hearing none. Is there anyone else from the public that would like to address this matter?. Yes, sir. One behind you. He beat you with the hand behind you. Yes, sir. MR. WHITE: Mr. Chairman, I just ask if the gentleman has been sworn. I'm not sure. ACTING CHAIRMAN SANSBURY: Have you been sworn, sir?. MR. MURPHY: No. ACTING CHAIRMAN SANSBURY: Okay. Page 24 July 12, 2000 (Speaker was duly sworn.) THE COURT REPORTER: May I have your full name and spell your last name, please. MR. MURPHY: My name is Henry Murphy. M-U-R-P-H-Y. Good morning. My name is Henry Murphy and I live in the center of this development on two and a half acres. And I'm very concerned about this development, about my access, the water flow, the environmental issues, the animal life. This area is a pristine area. It has many, many, many varieties of animal life in it. It has many gopher turtles in it. There are gopher turtle holes on every piece of highland in this area. I have walked over this land, I have looked at them. I can take you to many gopher turtle holes. I don't know how that's going to affect this development. But there are a lot. Like I said, it's a pristine area. We do have water in the rainy season. Water does lay into the sloughs. The melaleuca trees have overgrown the cypress slough, which is in the south. The southeast part is also a big wetland area. I feel that the lakes, once the lakes are put in, of course that's going to detract from the wetlands and probably even affect -- may even destroy the wetlands, because you won't have the water in the cypress slough like it would be. And later, probably if it's not cared for, then the melaleuca trees will certainly come back, the Brazilian pepper heads will come back and it will be infested even worse than it is now. So I do have concerns about it, living in the center of it. MR. CARLSON: I have a question -- ACTING CHAIRMAN SANSBURY: Yes, sir. MR. CARLSON: -- if you're ready for questions. MR. MURPHY: Yes. MR. CARLSON: Is this your property? MR. MURPHY: Yes, sir. MR. CARLSON: Can you comment to me on the hydrology or the hydraulics how deep the water gets, how long it stands in this wetlands in the southeast region of this proposed development? MR. MURPHY: Well, I can tell you that in that lower section there, that that's all wetlands. The cypress slough actually curves around. It comes around and curves around and then it Page 25 July 12, 2000 goes across the road that we access. And the times of the rainy season, it actually flows over the road. I access my properties from Lakeland Avenue, and it's like a little single lane that's been there for 30 years. And the water actually flows over it about two or three inches whenever it's a -- we have a nice rain, seasonal rain. So it does stay in there. I've seen it lay in there for possibly oh, a week or two in the lower areas of the slough. MR. CARLSON: Were you there in t9957 MR. MURPHY: Yes, sir. MR. CARLSON: How long did the water lay in there then? MR. MURPHY: I would say several weeks; two to three weeks. I didn't actually, you know, notice the time. But it was there quite a while, because as I said, the rain, the waters had went over. There's a little small culvert in our access, and the water had actually went over the culvert, over the road about two or three inches. And I noticed it laying into the culvert and in the slough area, because the slough is right there beside the road, and laying into the cypress. And I had actually went into the cypress and saw the water laying in the cypress slough. MR. CARLSON: Does it -- does it tend to have standing water after most any major rainfall event in the summer and the fall? MR. MURPHY: I have seen standing water in it. There's not standing water in it right at this time. I walked through it yesterday and there's no standing water in it now. It's dry right now. MR. CARLSON: Okay, thank you. ACTING CHAIRMAN SANSBURY: Are there any control structures at all on that road? The road I assume is the north-south road I see coming from the south of the property going north. Is that the location of your -- how you access the property? MR. MURPHY: I'm not sure I understand which -- ACTING CHAIRMAN SANSBURY: Well, Steve, could you point to where the -- yeah, that road right there. Is that how your property is accessed? MR. MURPHY: Yes, that's the access to my property. ACTING CHAIRMAN SANSBURY: All right, sir. Thanks. Do we have any other questions for Mr. Murphy? Would the petitioner like to address any of Mr. Murphy's Page 26 July 12, 2000 concerns? MR. HEDRICH: The first thing I would like to -- Brad Hedrich again. First thing I would like to address is the public safety issue of if he does have water going over his road it is a potentially dangerous situation. And he was concerned about his access. And I would consider his access at this time substandard and potentially dangerous. As part of our development, our roads would be designed based on our water management system and would not flood below the 25-year elevation. So his access that we're providing for him through our site would be a greatly improved access. We've set up to keep his existing driveway location so he would not have to spend any additional monies relocating his driveway or anything like that. We've basically taken out a lot, provided landscaping on both sides for his access point. As far as any of the other concerns, about exotics he mentioned that he thought that exotics might re-infest the area. As part of the Water Management District requirements, the homeowners' association is required to maintain the site exotic free in perpetuity forever. So that is not the case. As far as the potential for the lakes to adversely impact the wetland slough, that is also not a -- should not be a concern. The lakes are being controlled at the same exact elevation as the wetland slough, and actually discharge into the slough once water quality requirements are met. So what happens is for the large storm events, the lakes will stage up, up to a foot higher than the wetland slough to help prevent any adverse impacts on people that currently drain into the slough. So the developer, it's probably costing him an additional million dollars of fill to stage his areas a foot higher to make sure that those lakes can hold more water. An additional thing that it does do, it keeps the hydro period longer, because the lakes that are staged up a foot higher drain into the slough at a slower rate and basically keep the wetlands hydrated for a longer period, in addition to providing water management -- additional water management protection. ACTING CHAIRMAN SANSBURY: Thank you. Do any members of the council have any further questions for petitioner or for staff on this item? Page 27 July 12, 2000 Oh, excuse me, we had one more speaker. I'm sorry. I apologize. I'm new at this. This is the first time. I've got to remember that. MR. LAUTIN: Mr. Chairman, Lou Lautin, CEO of Panther Island Mitigation Bank. I'll make it brief. Mitigation banking came about in t994, t995 with the federal government and the State of Florida through guidances and regulations. Panther Island Mitigation Bank is contiguous to Mr. Carlson's Corkscrew Sanctuary. And if we proceed as a business and sell credits, we will eventually be 2,775 acres of the most pristine, regulated, protected wetlands in the State of Florida. Mitigation is done in advance of impacts. The proponent I think has an exceptionally good solution to his mitigation problems in taking the best mitigation on-site, the best quality wetlands on-site and preserving it, while taking his melaleuca dominated wetlands and exchanging that for mitigation done at Panther Island Mitigation Bank. Perfect example of taking areas that in some cases are t 00 percent melaleuca dominated wetlands that have almost no functions in values, and transferring that to an area where we have improved the quality of wetlands at Panther Island Mitigation Bank. Mr. Carlson is correct, the 404 standards of the Corps of Engineers requires avoid, minimize and then mitigate. We think that the client has demonstrated this in preserving the best mitigation areas on site, the best wetlands on site. He will improve those wetlands on site and exchange his obligation for the other dredge and fill activities on-site with purchasing credits at a permitted mitigation bank that took 2t months to permit through seven different agencies, including Florida Game and Fresh Water Fish Commission, taking wetlands that have almost no functional values, the melaleuca dominated wetlands, exchanging them and having us build these wetlands at Panther Island Mitigation Bank. Mr. Carlson is also correct in terms of the avoidance and minimization. The process is that once it gets approved here, the Corps of Engineers and the South Florida Water Management District are also empowered to make sure that they are complying with all federal and state regulations. So once it Page 28 July 12, 2000 passes this hurdle, there's two other levels of improvements and approvals that the process has to go through. So we think that the process of mitigation banking is not to allow for additional development in areas that shouldn't be developed. We think this is a perfect use of mitigation banking. We were permitted in a 21-month process. We think that -- we would strongly suggest and hope that you would approve the proposal as it pertains to the mitigation as presented. I'd be happy to answer any questions for you. ACTING CHAIRMAN SANSBURY: Any questions for Mr. Lautin? Thank you, sir. All right, now. Does council have any more questions of petitioner or for staff? Hearing none, what's the pleasure of the council? MR. CARLSON: Okay. I go through this exercise with every project. You've seen the map before. The yellow on here is the jurisdictional wetland that's impacted by this project. And be it degraded or not, or melaleuca infested or not, I think it's a bad deal for the county. I think it's getting too easy to write off wetlands. I don't think there's enough avoidance. It doesn't scare me a bit that 20 individual landowners could build homes on this project. That doesn't scare me at all. There's a gentleman back there who loves the land, and I don't -- you know, they jump through the same wetland protection hurdles as you folks. We wouldn't have giant lakes on the property, we wouldn't have as many roads, we wouldn't have as much hard surface. Doesn't scare me a bit. And I'll make a motion that we not approve this project on the basis that it does not avoid sufficient wetlands. We have approved -- we have had projects come to us with substantial amount of wetland with 80 percent of that wetland protected on those sites. The one site I remember was Winding Cypress. I voted for that project because I thought I was looking at a plan that showed sensitivity to preserve and protect as much wetland on that site as possible. So that's my motion, to not approve. ACTING CHAIRMAN SANSBURY: Do I hear a second? MR. BAXTER: Second. MR. COE: I'd like to make a comment. ACTING CHAIRMAN SANSBURY: Okay. Page 29 July 12, 2000 MR. COE: I think the thing that concerns me most of all, because I live in Lakewood, and I didn't realize where the heck I was living until all of a sudden in '95 we got some rain and people started explaining that this was all these cypress trees that were around me there in Lakewood, that we were living in a swamp. That's a slough area over there. I remember driving my Pathfinder down the road there on Lakewood Boulevard. It was up almost to the windows. And I got to see firsthand what it really is. And granted, it was like the 100-year flood, or whatever it may be. But since then, I've seen the interconnecting of lakes that, God, it goes way up by Rattlesnake Hammock, and it comes through us and it ends up in a creek down there by Wal-Mart where they got a weir that controls all that stuff. So I'm real sensitive to what a wetland is and what it means to us. And to put a house in the middle of that sucker or to otherwise develop it takes away from everybody. Not just in the community that's being built by the developer, but everybody around it. I just don't have a warm feeling about this project, that all of that has been taken into consideration. Specifically the comments that were made by the South Florida Water Management District, some of the things that we haven't had the opportunity to see yet, as far as your comments back with them. And I realize you're still in the negotiation stage. At this point I'm not comfortable that I could vote on this project at all. ACTING CHAIRMAN SANSBURY: Any other discussion with the council? Call questions on the motion of Mr. Carlson, that the council recommend to the County Commission and Planning Commission the project be denied. All in favor of Mr. Carlson's motion? MR. COE: (Indicates.) MR. CARLSON: (Indicates.) MR. BAXTER: (Indicates.) MS. SANTORO: (Indicates.) ACTING CHAIRMAN SANSBURY: (Indicates.) ACTING CHAIRMAN SANSBURY: passes. Thank you very much. MR. WHITE: Opposed? 4-1. Mr. Carlson's motion And the record will reflect that -- Page 30 July 12, 2000 ACTING CHAIRMAN SANSBURY: Wait, no action. It's got to be five to have an access? MR. WHITE: No, I'm pointing out that if the record will reflect that Committee Member Smith did not vote. ACTING CHAIRMAN SANSBURY: Mr. Smith did not vote. Mr. Carlson just raised a question that was brought up by county attorney previously, and that is we need a minimum of five affirmative votes to approve or disapprove an item? What was that on? That was on something we had. MR. WHITE: Yes, there's a provision in Land Development Code 5.t 3.5.2. Says that an affirmative vote of five or more members are necessary to take official action, regardless of whether five or more members are present for the meeting. ACTING CHAIRMAN SANSBURY: I guess what I'm hearing is that we have to move this forward with no action? What do we do? MR. MULHERE: Bob Mulhere, planning services director. To my knowledge, a petition that is not approved, you would need five affirmative votes to approve it. And Mr. White is correct, then therefore the petition is automatically denied. Which was the motion anyway. ACTING CHAIRMAN SANSBURY: Okay. MR. WHITE: I believe that's the legal -- ACTING CHAIRMAN SANSBURY: So be it. Okay, Item 5-B, Arlington Lakes. MR. MURRAY: Good morning. For the record, I'm Don Murray, principal planner with planning services department. This planned unit development, Arlington Lakes -- MR. WHITE: Excuse me, Mr. Chairman. Just as we did in the last case, if we could, before we begin, have all those individuals who will be speaking, both staff and the applicant and the public sworn. ACTING CHAIRMAN SANSBURY: Sorry about that. Anyone's going to speak on this item, please be sworn. (All speakers were duly sworn.) ACTING CHAIRMAN SANSBURY: Additionally, just to poll the council, do any members of the council have any conflict, any discussions regarding this item? Hearing none, let's proceed. MS. MURRAY: Thank you. Once again, Don Murray, principal Page 31 July 12, 2000 planner. This project is located approximately 1,850 feet south of Pine Ridge Road. Lies between the future Livingston Road and Whippoorwill Lane. It's approximately 98 acres in size. It also lies within a residential density band of the Pine Ridge/I-75 activity center, which allows a bonus of three units per acre in addition to the four units per acre base density. This project proposes 6.2 units per acre, for a total of 610 units. It also is surrounded by an area that is -- it's vacant or undeveloped with some large lot residential to the north. We have mostly agricultural, large lots, some residential large lot development here. And then the same thing right at this corner. We have some proposed planned unit developments to the south. And we have three approved planned unit developments to the east. This project also proposes a -- excuse me, if it's approved, would have approximately a t 9-acre flowway which bisects it from north to the south, providing drainage for properties from the north, this property, and also to the south, where it exits into Kensington Lake. It would also have approximately a 10.8-acre lake on the south side and would have typical recreational uses. The staff comprehensive planning and current planning has reviewed this for consistency with Growth Management Plan, and also for compatibility with surrounding development, and we found that it is both consistent and compatible. Therefore, we are recommending approval. Are there any questions? ACTING CHAIRMAN SANSBURY: Any questions for staff? MR. LENBERGER: For the record, Stephen Lenberger, development services, current planning section. The subject property is located in the southwest quadrant, as Don said, of 1-75 and Pine Ridge Road. I have an aerial on the wall here that identifies the parcel boundary. The property is vegetated with pine flatwoods. Pine flatwoods occupy this area and primarily this portion of the property. There's a cypress area in the center. There are also areas of palmetto with a significant number of pines in this area and also on this side of the property. The property itself is a total of 98 acres. We took a look at it to see how much native vegetation would be required. Staff came Page 32 July 12, 2000 out with 20.51 acres. The petitioner is proposing to preserve the central area, the cypress area, in a flowway. The cypress area that exists there now pretty much runs through the center of the property and forms kind of a natural corridor. Protected species survey was done on the property. There were no protected species to identify. Although from past projects in this area, we know there are some fox squirrels in the area, so they may become an issue when they go on permitting with the Water Management District. Anyway, if you have any questions, I'll be glad to answer them. The petitioner is here, as well as their environmental staff. ACTING CHAIRMAN SANSBURY: Questions for Mr. Lenberger? Petitioner?. MR. NADEAU: Acting Chairman Sansbury, members of the council, pleasure to be before you this morning representing Arlington Lakes PUD. The PUD, as described by Mr. Lenberger, is 98.37 acres. Approximately 33 -- excuse me, approximately 44.86 acres of the property is in wetlands. It generally follows this line right in here. The wetland impacts total 33.43 acres. I will identify that there's 32 acres of the jurisdictional wetlands that are infested; anywhere between 50 to 90 percent of areal coverage of melaleuca and other exotics. After several years of discussion and working on this project, we approached the Army Corps of Engineers, as well as South Florida Water Management District, as to how they'd like to look at this project. And it was their suggestion that a flowway be provided to take care of regional drainage issues. And this flowway is approximately t 9.5 acres. We are in the permit process with the district. We have made our submittal. We have not received our first 30-day letter yet. The flowway will -- at its widest point is approximately 300 feet wide. It will come across the existing FPL easement through an existing borrow pit and go underneath the proposed Whippoorwill Lane through a very large culvert system to interconnect to the Whippoorwill Woods PUD, which lies to the east of us. Though that -- those waters in that flowway will discharge into the 1-75 ditch, ultimately going through a four by Page 33 July 12, 2000 five box culvert under 1-75 to the 1-75 canal and into the Golden Gate Canal. As was identified by Mr. Lenberger, there is t9.5 acres of flowway, of which approximately t 0.4 acres is vegetated. The balance of the required 20.5t acres will easily be satisfied during the next development order, or development order submitted to the county. Our average site grade is approximately t0.7. Our anticipated control elevation is t0. We are separated into two basins based on the flowway structure that will go through. This will be Basin t, which is t9.5 acres, and then Basin 2, which lies completely north of the FPL easement, is approximately 59.3 acres. The 25-year flood elevation for Basin 1, which is the small basin to the east, is 12.63 feet NGVD, and our finished floor or 100 year will be 13.33. Basin 2, 59.3 acres, 25-year roads and parking at 12.05, and your finished floor at 12.66. A -- as stated by Mr. Lenberger, a protected species survey was done on the property and no listed species were found. I'd be happy to answer any questions that you might have. MR. CARLSON: I missed something. MR. NADEAU: Yes, Mr. Carlson. MR. CARLSON: Why is there still 10 acres in reserve for the as preserved? It's not shown on your plan. MR. NADEAU: Okay. The reason is that we have an FPL easement, which is in the flowway, where we will have to cross that. That's not vegetated. We also have the existing borrow pit. A portion of it will be in the flowway. That is not vegetated, so it doesn't count towards the retained native vegetated requirement pursuant to Land Development Code. MR. CARLSON: Why can't you identify that at this point, where that preserve area -- MR. NADEAU: Well, we're not in the next development order stage. Presently our permitting with the district is a multi-family development. It will easily satisfy that 10 acres. We will come up with the initial 10 acres. It will be -- MR. CARLSON: But it makes a difference whether it's part of the flowway or whether it's a buffer or it's on the extreme west end of the property or not connected to the flowway. That makes Page 34 July 12, 2000 MR. NADEAU: Of course. And there will be a 25-foot buffer along the perimeter of the flowways. We will have our buffering around the project, which is required. We have also substantial perimeter setbacks set forth by planning staff. Those areas would also be naturally vegetated, as well as having naturally vegetated areas that separate the development areas. MR. CARLSON: But you understand my problem is this is the Environmental Advisory Council -- MR. NADEAU: Sure. MR. CARLSON: -- and that t0 acres can make a huge difference in the environmental attributes of this project. And I can't see them. MR. NADEAU: Well, they're generally depicted -- they actually are generally depicted. They're depicted in these areas where we have the residential development pods around here, vegetated areas in here, they're -- it's not obvious, but there's a road that comes through here with the units around. And this naturally vegetated area in here, as well as in here and up against the Livingston Road corridor. MR. CARLSON: Oh, I got it. Okay. ACTING CHAIRMAN SANSBURY: All right. Any other questions for the petitioner?. Yes, ma'am. MS. SANTORO: Would you describe the flowway? I don't know whether you're submitting that it's going to be faster or whether its natural vegetation is moving slowly, or-- MR. NADEAU: Sure. The flowway is -- other than the removal of exotic material in the flowway and the replanting of native vegetation inside there, pursuant to Land Development Code, it's not necessarily going to be channelized, although there will be the detritus layer removed in some areas, which will allow a sheet flow type of action through the flowway, across the FPL easement and into the existing borrow pit, where it will -- of course, all of the water going into this flowway will have been pretreated. The flowway is not a part of our drainage basin, although we do discharge into it after pretreatment. So the character of the flowway is really going to be in its natural state. MR. CARLSON: I hate to beat this horse again, but -- MR. NADEAU: Mr. Carlson. MR. CARLSON: -- the t0 acres still outstanding, those will Page 35 July 12, 2000 not be wetland? MR. NADEAU: Some components of the jurisdictional wetland areas, outside -- see, we've got a palmetto mat in this area right here. It will be upland vegetation here, as well as some ecotone on the east and west sides of any of that buffering. However, all of this area surrounding would be wetland preserve. ACTING CHAIRMAN SANSBURY: Okay, further questions for the petitioner?. Hearing none, do we have anyone from the audience who would like to address this one? MR. NADEAU: I'm sorry, Dwight Nadeau for the record. ACTING CHAIRMAN SANSBURY: No one from the audience would like to address this matter?. Council have any further questions for staff or the petitioner?. Any discussion? What's the pleasure? MR. CARLSON: Well, the discussion from me is that boy, you'll never guess this, but I don't like this project for the same reason I didn't like the other one. Very little protection of what is an arguably jurisdictional wetland. ACTING CHAIRMAN SANSBURY: The silence is deafening here. MR. BAXTER: In reference to the amount of wetlands there are, what is the percentage that you're depleting? MR. NADEAU: I believe it's approximately 70 percent. MS. SANTORO: 74 percent. MR. NADEAU: 74 percent. Now, understand, if I may, you know, explain a little bit more of how this flowway came about. The agencies, Corps and South Florida, recommended to us that we put in this flowway in lieu of preserving the lower quality wetlands. They're finding that the regional benefit for the drainage in this area is more significant to the agencies than it is to preserve and enhance the wetland areas. This was also the case with the Whippoorwill Woods PUD, which is also currently in permit process with the district. So it was the agencies that told us how -- they didn't tell us, they recommended to us how to design this project so it would be acceptable and address the regional drainage issues, which will be ameliorated or mitigated for through this flowway system. MR. CARLSON: Did they specify the width of the flowway? Page 36 July 12, 2000 MR. NADEAU: Yes, they did. ACTING CHAIRMAN SANSBURY: If I could comment, you know, I understand the jurisdictional wetlands, I understand how they're determined and so forth. But I think the thing we have to remember is the functionality of the things we have out there. And as in the other project, we had a situation where yes, we have areas that are wetlands. Are those areas functional, why aren't they functional. They're not functional because of alterations in the natural hydro period, they're not functional because of invasion of exotics. How do we get them back functionally? We don't have, from the public standpoint, from government's standpoint, the ability to go in there nor the money to go in there and restore all those wetlands, restore all the hydro periods. And I look at something like this. If you have the high quality area, if you've got the opportunity to restore a high quality area, get it back into condition, get rid of exotics, get some water back into it, and you have to sacrifice some of the lower quality wetland areas. And I agree with Mr. Carlson, they're lower quality, they do still have some function. But if you don't take a look at these in this manner, we're going to lose all of them. The melaleucas and the peppers and what have you, the primrose, whatever it is, is going to take everything over, and we're not going to have any functional wetlands in areas, infill areas such as this. So I think the approach, do I like to see that percentage of wetlands gone? No, I don't like to see that. But the alternative is gaining this flowway, gaining a functioning area in perpetuity. Again, this area I'm sure will have to be dedicated to the homeowners' association, if it's -- a bond has to be put up to assure maintenance, and, you know, I would support this approach. MR. NADEAU: And again, as far as the functionality of the wetlands in this area, there's been historically through the creation of Pine Ridge Road, Whippoorwill Lane, the FPL easement that runs north/south along the Livingston Road corridor, because of this impoundment, that the agencies were very desirous to have this flowway concept. MR. CARLSON: I think there's a dilemma here. And I think the dilemma is that the amount of preserve area required by Land Page 37 July 12, 2000 Development Code, be it 15 percent or 25 percent, in no way relates to the amount of wetland on the site that we review. I mean, you shoot for this arbitrary target that was established, and it in no way relates to the amount of wetland on these sites. And, you know, my concept of a good project is a project you look at it and the applicant has bent over backwards to avoid wetlands and not just shoot for the required preservation area. And that's -- that's -- those are the projects I vote for, that go above and beyond the t5 or 25 percent requirement and do everything possible to avoid wetlands and design around it and incorporate them in the project. And I voted for those projects. MR. SMITH: If I might comment. The thought always occurs to me that, you know, we as a member of this council are bound by certain parameters. I don't suspect that any of us believes that we have the authority or the power to approve or disapprove projects just based on our own fancy, but rather, we have to look at what our role is and how it fits into the overall legislation ordinances that create us. The kinds of concerns that Mr. Carlson has I believe would best be addressed in terms of promoting or some changes in ordinances, if he feels that it isn't sufficient to meet what he considers to be important environmental concerns. But the truth of the matter is, is that people have gone ahead long before we were here and have taken into account many of the things that have been discussed here. For example, the mitigation for panther mitigation and using a large area for preservation, as opposed to smaller ones, these are all legislative decisions that have already been made. And I for one feel that it's a violation of someone's property rights to -- for a board, without proper authority, to violate the parameters that have been given to us as a board. So for that reason and the reason I think this particular project appears to me to have done a very good job of complying with what government agencies are actually looking to have done, I would move approval of this project. ACTING CHAIRMAN SANSBURY: Motion on the board -- on the floor. Do I hear a second? MR. NADEAU: May I interject another point, Acting Chairman? ACTING CHAIRMAN SANSBURY: Yes, sir. Page 38 July 12, 2000 MR. NADEAU: In discussion with my clients, and to try and ameliorate some of the concerns of Mr. Carlson regarding the wetlands, we're going to agree to preserve an additional eight acres of wetland -- jurisdictional wetland area to satisfy the 25 percent requirement. The balance -- the two acres would be in the upland side, more likely, along Whippoorwill Lane. We have substantial buffering -- substantial setback requirements required by planning staff for this project. Therefore, there would be a -- 35-foot, Don? -- 35 foot on the Whippoorwill side, and I believe it's 40 feet on the Livingston side, all of which on the west side, the Livingston side, is jurisdictional wetlands, other than the palmetto mat in the middle. Therefore, the perimeters and any additional expansion of the flowway, which is all jurisdictional wetlands, we're committing to an additional eight acres of that required 25 percent to be wetland preserve. ACTING CHAIRMAN SANSBURY: Mr. White, I'm not up on my Roberts Rule of Orders. Can the chairman second the motion? MR. WHITE: Certainly. ACTING CHAIRMAN SANSBURY: I'd like to go ahead and second the motion then for approval. Any discussion on the motion? MR. LENBERGER: May I interject a second? ACTING CHAIRMAN SANSBURY: Yes, sir. MR. LENBERGER: Since the petitioner is committing to preserve an additional eight acres of wetlands, did you want to include in your motion some sort of stipulation in the PUD -- ACTING CHAIRMAN SANSBURY: Mr. Smith? MR. LENBERGER: -- regarding that? MR. SMITH: Yes, I would so agree to that. ACTING CHAIRMAN SANSBURY: Okay, seconder agrees. Okay, all those in favor of approval of Mr. Smith's motion, with the stipulation of the additional eight acres, signify by saying aye. MR. COE: (Indicates.) ACTING CHAIRMAN SANSBURY: (Indicates.} MR. SMITH: (Indicates.) MR. BAXTER: (Indicates.) ACTING CHAIRMAN SANSBURY: Opposed? Page 39 July 12, 2000 MR. CARLSON: Aye. MS. SANTORO: (Indicates.) ACTING CHAIRMAN SANSBURY: MR. NADEAU: 4-2. ACTING CHAIRMAN SANSBURY: unfortunately. MR. BAXTER: No action. ACTING CHAIRMAN SANSBURY: What did we get, 4-2? Same result as the last one, No decision, right? MR. WHITE: Certainly, Mr. Chairman, you're able to take any additional motions, if any of the council members want to make -- ACTING CHAIRMAN SANSBURY: Okay. Are there any additional motions anyone would like to take on this matter?. Hearing none. Question for staff. When we pass this on and it says no decision, what do we say, Bob, when we pass it on? Do we say by a vote, we fail for this reason, or what have you? MR. MULHERE: Well, for the record again, Bob Mulhere. I think the last petition was a little bit different. The motion was to deny. And I believe that motion carried 4-t. ACTING CHAIRMAN SANSBURY: That's correct. MR. MULHERE: I believe the LDC doesn't say you need to have a minimum of five votes to deny a petition, it says you need to have a minimum of five votes to approve a petition. MR. WHITE: I believe it says -- MR. MULHERE: Or to take action. See, that's the question. MR. WHITE: -- an affirmative vote of five or more to take official action. MR. MULHERE: Okay, so you're correct. So then both of these petitions then, there would be no official action. We will carry forward your vote. And it would indicate exactly what the motion was. So if the motion was to deny, and the vote was 4-t in the previous petition, since you didn't have five affirmative votes, will indicate to the board that no official action could be taken, no official recommendation. However, the board will be aware of what your intent was -- ACTING CHAIRMAN SANSBURY: Very good. MR. MULHERE: -- on both of them. MR. COE: I've got a question. This would have been -- both of these decisions would have been a lot easier for me had I had the 30-day letter from South Florida Water Management. Page 40 July 12, 2000 Particularly in your case. Just to see where we were on this. You pick up some of these South Florida Water Management District things and it goes oh, no way. You know, you've got to have 80 percent flow, et cetera, et cetera. You know, eventually this thing gets negotiated out. But I'd at least like to have that 30-day letter. I think you all are bringing these to us too early. And that's just a personal opinion. That just would sure would help me, rather than get it so early that nobody's looked at it except for us. MR. WHITE: And I don't wish to speak out of turn, but perhaps being new suggests that I'm going to make -- may or may not be helpful, I don't know. But to respond to that, it seems to me that there's no procedural preclusion from an applicant bringing back their request at some future date when such information or additional information may be available. Since there's no official action, quote/unquote, taken, I would think that petitioners have some ability to reschedule, based upon additional information that may be brought into the record for your future consideration. MR. MULHERE: Right. This actually gets a little bit fairly interesting at this point in time. Since this is an advisory board to the Board of County Commissioners, petitioner has the ability to carry this petition forward, even if you were to recommend denial, obviously, as well as a no action. So this petition can be carried forward to the board, regardless of-- obviously with whatever your recommendation is, including one of no action. It would be then a question of whether the petitioner wished to defer carrying this forward to the board until they could acquire some additional information, bring it back to you and acquire an affirmative vote, or chose to bring it forward to the board, despite the no action vote or a negative vote. Either way, they can carry it forward to the Board of County Commissioners. And I guess that -- with respect to your suggestion, Mr. Coe, I would have to defer -- I think we'd have to take a look at it a little bit. I'm not sure what the process is in terms of requiring that 30 -- obviously it's within 30 days, but I'm not sure how far along an applicant might be in the process. MR. CHRZANOWSKI: We don't require -- Stan Chrzanowski, with development services. Page 41 July 12, 2000 We don't require their district submittal or anything for the rezone process. We require that strictly for the SDP approvals after the property is rezoned. Now, we could change our requirements to make sure that we got at least a 30-day letter. MR. MULHERE: I think we can look at that. The issue that I'm not sure about and that I'd like to bring back once we explore it a little bit is what the investment in fees is for an applicant. In other words, there may be some issue with respect to whether or not an applicant chooses to try to achieve a rezone -- I'm not suggesting they don't have to deliver as much information as possible for this board to make a decision -- prior to submitting the jurisdictional agencies as a result of whatever other costs or fees might be, you know, incurred during that process. So they want to know, you know, can I go forward or can I not go forward, based on the local government's decision first. And maybe, Dwight, you might have a comment on that. But in any case, I mean, I can look into that and bring back probably at your next meeting some information as to whether or not there are any issues related to requiring some greater level of review by the jurisdictional agencies before you make a decision. MR. CHRZANOWSKI: I distributed that letter on the Madeira project at the request of the Water Management District, because they couldn't be here this week. They sent us the letter a day before last week's meeting. MR. MULHERE: I have no objection to distributing anything that we have on hand. I just -- I want to take a look at requiring it, and I'll bring back, you know, whatever our findings are. ACTING CHAIRMAN SANSBURY: The only thing I see a 30-day letter -- what was it, 30 -- experiencing with 30-day letters. 30-day letters are usually put out to meet the statute. They haven't really looked at it. They go through and put everything in the world in that. And you really don't get to the nitty-gritty of what you're talking about until the second 30-day response, of which they've had further time to look at it, you've had time to come back. And both with the Corps and with the District, usually those 30-day letters, you read them sometimes and you say my God, they didn't even look at my application. And it just -- they have to respond in 30 days or they default on 30 days; I don't know what happens in that case. But I found them to not really be that Page 42 July 12, 2000 informational for you. The second response is usually where you start getting back some good factual stuff on which way they're going to go. MR. NADEAU: And just for the record, Dwight Nadeau again, McAnly Engineering & Design. The 30-day letters, as we've stated, are not a requirement for zoning. And in order to -- actually, this is the first or second time that we've actually made a submittal to the Water Management District prior to zoning approval. Every other project that I've worked on in the past t 3 years in this community goes for zoning first. And then once they're sure that they have the zoning, they go for the expense of putting a South Florida permit application together. It's quite costly, quite costly. And it's a risk, if you don't get the intensity or density that you're requesting through the zoning process. So that may be an onerous requirement. ACTING CHAIRMAN SANSBURY: All right, sir, thank you very much. MR. NADEAU: Thank you. ACTING CHAIRMAN SANSBURY: Okay, old business. Where do we stand on obtaining so that we don't have these lack of fives on getting two additional people on? Do we know where the County Commission is on that? Does anybody have any idea? Don't we have -- we have two vacancies. MR. LENBERGER: Yeah, we have two vacancies. I don't know where we stand. I talked to Vince and Connie yesterday about it. They were going to look into it. Sue Filson's actually the person who handles it. ACTING CHAIRMAN SANSBURY: Okay. MR. MULHERE: Again, Bob Mulhere. I know that those vacancies have been posted. I think the posting period hasn't closed yet. And because the board is in recesses and will not meet until August t st, I'm not sure if appointments will be made -- in fact, I don't think they will be made at the August t st meeting, so it would have to be the subsequent meeting after that. ACTING CHAIRMAN SANSBURY: Okay. Do we have any new business to discuss? Do we have a growth management subcommittee report? MS. SANTORO: Could I ask under new -- maybe it's old business. Page 43 July 12, 2000 ACTING CHAIRMAN SANSBURY: Okay. MS. SANTORO: Are we going to have some type of workshop meeting in August, working toward wetland legislation? ACTING CHAIRMAN SANSBURY: I don't know where we left that. I know we set up a meeting. MR. CARLSON: I made-- MS. SANTORO: We talked about August. MR. CARLSON: -- that request in June. Barbara Burgeson requested that we delay it till she's back. And I believe -- MS. SANTORO: I thought it was August. MR. CARLSON: I thought it was August. MR. LENBERGER: This was regarding -- what was that again? ACTING CHAIRMAN SANSBURY: The wetlands. MR. LENBERGER: The wetland discussion? MR. CARLSON: The Martin County-- MR. LENBERGER: Martin County. MR. CARLSON: -- ordinance that was submitted to us that we never had a discussion on. MR. LENBERGER: All right, I'll mention it to her that you would like to have that discussion. MR. CARLSON: And ideally someone from Martin County. MR. LENBERGER: Okay, I'll make your desires known to her. MR. COE: Yeah, I think she was going to ask somebody to come over from Martin County. ACTING CHAIRMAN SANSBURY: Okay. Are there any public comments? Any further comments from the council? Thank you very much for your perseverance of the chairman today, and we stand adjourned. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 10:45 a.m. ENVIRONMENTAL ADVISORY COUNCIL Page 44 July 12, 2000 TOM SANSBURY, ACTING CHAIRMAN TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC., BY CHERIE' R. LEONE, NOTARY PUBLIC Page 45