BCC Minutes 02/13/2001 RFebruary 13, 2001
TRANSCRIPT OF THE MEETING OF THE
BOARD OF COUNTY COMMISSIONERS
Naples, Florida, February 13, 2001
LET IT BE REMEMBERED, that the Board of County
Commissioners, in and for the County of Collier, and also acting
as the Board of Zoning Appeals and as the governing board(s) of
such special districts as have been created according to law and
having conducted business herein, met on this date at 9:00 a.m.
in REGULAR SESSION in Building 'F" of the Government
Complex, East Naples, Florida, with the following members
present:
CHAIRMAN:
James D. Carter, PhD
Donna Fiala
Tom Henning
Jim Coletta
Pamela Mac'Kie
ALSO PRESENT: Tom Olliff, County Manager
David Weigel, County Attorney
Page I
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA
Tuesday, February 13, 2001
9:00 a.m.
NOTICE: ALL PERSONS WISHING TO SPEAK ON ANY AGENDA ITEM MUST REGISTER
PRIOR TO SPEAKING. SPEAKERS MUST REGISTER WITH THE COUNTY MANAGER
PRIOR TO THE PRESENTATION OF THE AGENDA ITEM TO BE ADDRESSED.
COLLIER COUNTY ORDINANCE NO. 99-22 REQUIRES THAT ALL LOBBYISTS SHALL,
BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED
TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE
CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT.
REQUESTS TO ADDRESS THE BOARD ON SUBJECTS WHICH ARE NOT ON THIS
AGENDA MUST BE SUBMITTED IN WRITING WITH EXPLANATION TO THE COUNTY
MANAGER AT LEAST 13 DAYS PRIOR TO THE DATE OF THE MEETING AND WILL BE
HEARD UNDER "PUBLIC PETITIONS".
ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A
RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY
NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE,
WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE
APPEAL IS TO BE BASED.
ALL REGISTERED PUBLIC SPEAKERS WILL BE LIMITED TO FIVE (5) MINUTES UNLESS
PERMISSION FOR ADDITIONAL TIME IS GRANTED BY THE CHAIRMAN.
IF YOU ARE A PERSON WITH A DISABILITY WHO NEEDS ANY ACCOMMODATION IN
ORDER TO PARTICIPATE IN THIS PROCEEDING, YOU ARE ENTITLED, AT NO COST TO
YOU, TO THE PROVISION OF CERTAIN ASSISTANCE. PLEASE CONTACT THE
COLLIER COUNTY FACILITIES MANAGEMENT DEPARTMENT LOCATED AT 3301 EAST
TAMIAMI TRAIL, NAPLES, FLORIDA, 34112, (941) 774-8380; ASSISTED LISTENING
DEVICES FOR THE HEARING IMPAIRED ARE AVAILABLE IN THE COUNTY
COMMISSIONERS' OFFICE.
LUNCH RECESS SCHEDULED FOR 12:00 NOON TO 1:00 P.M.
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February 13, 2001
INVOCATION - Reverend Harold Brown, Lely Presbyterian Church
PLEDGE OF ALLEGIANCE
APPROVAL OF AGENDAS
A. APPROVAL OF CONSENT AGENDA.
B. APPROVAL OF SUMMARY AGENDA.
C. APPROVAL OF REGULAR AGENDA.
APPROVAL OF MINUTES
A. January 9, 2001 - Regular Meeting
B. January 16, 2001 -Workshop
C. January 23, 2001 - Regular Meeting
PROCLAMATIONS AND SERVICE AWARDS
A, PROCLAMATIONS
B. SERVICE AWARDS
Five Year Attendees:
1) Guy Spieth, EMS
2) Anna Parrish, Pollution Control
3) Amy Taylor, Planning Services
Ten Year Attendee:
4) Virginia Miller, Solid Waste
Fifteen Year Attendee:
5) Gregory Tavernier, Water Distribution
Twenty-Five Year Attendee:
6) Nery Anderson, Building Review
C. PRESENTATIONS
APPROVAL OF CLERK'S REPORT
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February 13, 2001
A. ANALYSIS OF CHANGES TO RESERVES FOR CONTINGENCIES.
PUBLIC PETITIONS
COUNTY MANAGER'S REPORT
A. COMMUNITY DEVELOPMENT & ENVIRONMENTAL SERVICES
1)
Recommendation that the Board of County Commissioners approve by
Resolution, the Activity Center #9 Interchange Master Plan to provide
landscape, architectural design and transportation access criteria for the
development of a zoning overlay and amendments to the Land
Development Code.
2)
Report to the Board of County Commissioners on a proposed timetable
and work plan outline for an update of the Golden Gate Area Master Plan
(GGMP).
3)
This item requires that all participants be sworn in and ex parte
disclosure be provided by Commission members. Petition ST-99-3
Coastal Engineering representing Keystone Homes requesting a Special
Treatment Permit to allow construction of residential single family lots,
streets and associated infrastructure on a portion of the property with a
special treatment (ST) overlay (ST Parcel 23A) located within the
proposed Little Palm Island Subdivision in Section 23, Township 48
South, Range 25 East, Collier County, Florida.
B. TRANSPORTATION SERVICES
1)
Request approval to engage design/build contractor for a new bridge and
approaches at Thirteenth Street SW over the Golden Gate Main Canal.
C. PUBLIC UTILITIES
1)
Approve amendment to Professional Services Agreement related to
relocating the proposed site for Aquifer Storage and Recovery of
Reclaimed Water, RFP 99-2926, Project 74030.
D. PUBLIC SERVICES
E. SUPPORT SERVICES
1)
Approval and ratification of contract between the Collier County Board of
County Commissioners and the Southwest Florida Professional
Firefighters, Local 1826, International Association of Firefighters, Inc.
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February 13, 2001
11.
F. EMERGENCYSERVICES
G. COUNTY MANAGER
H. AIRPORT AUTHORITY
1)
Approval of a $535,000 State Fast Track Grant to construct a Cargo
Processing Facility and U.S. Customs Office at the Immokalee Regional
Airport.
COUNTY ATTORNEY'S REPORT
BOARD OF COUNTY COMMISSIONERS
A. Appointment of members to the County Government Productivity Committee.
B. Appointment of member to the Collier County Code Enforcement Board.
THIS ITEM TO BE HEARD AT 1:00 P.M. Discussion regarding a previous
Board direction to submit a joint application for a beach facility at Barefoot Beach
Preserve. (Requested by Commissioner Mac'Kie and Commissioner Carter)
D. Discussion regarding funding for public school nurses. (Commissioner Carter)
OTHER ITEMS
A. OTHER CONSTITUTIONAL OFFICERS
B. COMMUNITY REDEVELOPMENT AGENCY
1)
THIS ITEM WAS CONTINUED FROM THE JANUARY 23~ 2001
MEETING AND HAS BEEN FURTHER CONTINUED TO THE
FEBRUARY 27, 2001 MEETING. Recommendation that the Community
Redevelopment Agency Board review the proposal received for the
Gateway "Mini Triangle" Redevelopment Project; direct staff to begin
negotiating a Development Agreement; and accept the Naples Gateway
Apex Triangle Property Owners' Association request to return in 180 days
(6 months) with an alternative development plan for the "Mini Triangle" for
the Board to consider.
C. PUBLIC COMMENT ON GENERAL TOPICS
PUBLIC HEARINGS WILL BE HEARD IMMEDIATELY FOLLOWING STAFF ITEMS
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February 13, 2001
12.
13.
ADVERTISED PUBLIC HEARINGS - BCC
A. COMPREHENSIVE PLAN AMENDMENTS
B. ZONING AMENDMENTS
1)
THIS ITEM WAS CONTINUED FROM THE JANUARY 23, 2001
MEETING AND IS FURTHER CONTINUED TO THE MARCH 13, 2001
MEETING. Petition PUD-00-16, Robert Duane of Hole, Montes and
Associates, representing Ralph Abedca, requesting a rezone from "A"
Agriculture to "PUD" Planned Unit Development to be known as Collier
Boulevard Mixed use Commerce Center PUD allowing for residential,
commercial retail and office land uses for property located on the
northwest quadrant of the intersection of 1-75 and Collier Boulevard (CR
951) in Section 34, Township 49 South, Range 26 East, Collier County,
Florida.
C. OTHER
1)
Adoption of an Ordinance creating the Collier County Coastal Advisory
Committee.
BOARD OF ZONING APPEALS
A. ADVERTISED PUBLIC HEARINGS
1)
THIS ITEM CONTINUED FROM THE JANUARY 23, 2001 MEETING.
This item requires that all participants be sworn in and ex parte
disclosure be provided by Commission members. V-2000-26, Joseph
Sabatino requesting a variance of 7.5 feet from the required side yard of
7.5 feet to 0 feet along the East side yard of Lots 4, 5, 6 and 7; a variance
of 7.5 feet from the required 7.5 feet to 0 feet for accessory structures
along the side lot lines and within the courtyard walls; and a variance of
10 feet from the required rear yard of 10 feet to 0 feet for accessory
structures along the rear lot lines and within the courtyard walls for
property located on 95th Avenue North, further described as Lots 3, 4, 5, 6
and 7, Naples Park Unit 3, in Section 28, Township 48 South, Range 25
East, Collier County, Florida.
2)
This item requires that all participants be sworn in and ex parte
disclosure be provided by Commission members. Petition V-2000-31,
David and Cheryl Surgeon requesting an after-the-fact variance 1.4 feet
from the required 5 foot rear yard setback for accessory structures to 3.6
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February 13, 2001
3)
feet for property located at 2925 Coco Lakes Drive, further described as
Lots 45 and 46, Coco Lakes, in Section 23, Township 49 South, Range 25
East, Collier County, Florida.
THIS ITEM IS TO BE HEARD AT 10:00 A.M. THIS ITEM CONTINUED
4)
FROM THE JANUARY 237 2001 MEETING. BACK-UP
DOCUMENTATION FOR THIS ITEM CAN BE VIEWED IN THE
PLANNING SERVICES DEPARTMENT AT THE DEVELOPMENT
SERVICES BUILDING AT 2800 N. HORSESHOE DRIVE AND CLERK
OF COURTST MINUTES AND RECORDS DEPARTMENT~ 4TM FLOOR
OF THE HARMON TURNER BUILDING, 3301 E. TAMIAMI TRAIL. This
item requires that all participants be sworn in and ex parte
disclosure be provided by Commission members. Petition A-2000-23,
Anthony P. Pires, Jr., requesting an appeal of the Collier County Planning
Commission's approval of boat dock extension BD-2000-20, approved on
November 2, 2000 for property located at 372 Oak Avenue, further
described as Lot 9, Block 1, Conner's Vanderbilt Beach Estates Unit 2, in
Section 32, Township 48 South, Range 25 East, Collier County, Florida.
THIS ITEM IS TO BE HEARD IMMEDIATELY FOLLOWING 13 A 3.
THIS ITEM CONTINUED FROM THE JANUARY 23~ 2001 MEETING.
BACK-UP DOCUMENTATION FOR THIS ITEM CAN BE VIEWED IN
THE PLANNING SERVICES DEPARTMENT AT THE DEVELOPMENT
14.
15.
SERVICES BUILDING AT 2800 N. HORSESHOE DRIVE AND CLERK
OF COURTST MINUTES AND RECORDS DEPARTMENT~ 4TM FLOOR
OF THE HARMON TURNER BUILDING~ 3301 E. TAMIAMI TRAIL. This
item requires that all participants be sworn in and ex parte
disclosure be provided by Commission members. Petition A-2000-
02, Anthony P. Pires, Jr., requesting an appeal of the Collier County
Planning Commission's approval of a boat dock extension BD-2000-23,
approved on October 19, 2000 for property located at 9207 Vanderbilt
Drive, further described as Lots 5 and 6, Conners Vanderbilt Beach
Estates Unit 2, in Section 32, Township 48 South, Range 25 East, Collier
County, Florida.
B. OTHER
STAFF'S COMMUNICATIONS
BOARD OF COUNTY COMMISSIONERS' COMMUNICATIONS
16.
CONSENT AGENDA - All matters listed under this item are considered to be
routine and action will be taken by one motion without separate discussion of
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February 13, 2001
each item. If discussion is desired by a member of the Board, that item(s) will be
removed from the Consent Agenda and considered separately.
Am
COMMUNITY DEVELOPMENT & ENVIRONMENTAL SERVICES
1)
Recommendation that the Board of County Commissioners adopt a
Resolution to correct the boundaries of the Bayshore/Gateway Triangle
Redevelopment Area and the Immokalee Redevelopment Area due to a
Scrivener's Error.
2)
Request to approve for recording the Final Plat of "Island Walk Phase
Five B", and approval of the Standard Form Construction and
Maintenance Agreement and approval of the amount of the Performance
Security.
3)
Waive purchasing policy and approve a secondary contract with Columbia
Telecommunications Consultants for Institutional Network Planning and
Implementation Management in an amount not to exceed $50,000.00 and
the Chairman be authorized to sign the Standard County Attorney
Approved Agreement on behalf of the Board.
4)
Petition VAC 00-022 to vacate, renounce, and disclaim easements
recorded in separate instruments in the Public Records of Collier County,
Florida, located in Section 28, Township 48 South, Range 26 East, Collier
County, Florida.
5)
Petition Carny-2001-AR #306, Sandra Ramos, of the Collier County
Immokalee Parks and Recreation Department, requesting a permit to
conduct a carnival from February 15 through 18, 2001, on the property
adjacent to the Immokalee Airport Park, 520 Airways Road.
6)
Petition Carny-2001-AR #298, Mr. Ken Ellis, Executive Director of the
Golden Gate Area Chamber of Commerce, requesting permit to conduct a
carnival from February 23, 24 and 25, 2001 at the Golden Gate
Community Center, 4701 Golden Gate Parkway.
7)
Recommendation that the Board of County Commissioners approve a
Budget Amendment to recognize the annual appropriation of the tax
increment revenues to the Redevelopment Trust Fund and approve the
Revenues to the appropriate expense categories.
8)
Approve an Interlocal Agreement with the City of Naples for fund sharing
towards construction of artificial reefs.
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February 13, 2001
9)
Request to grant final acceptance of the roadway, drainage, water and
sewer improvements for the final plat of "Pelican Strand".
10) Final acceptance of Sewer Utility Facilities for Walker Industrial Building.
11) Code Enforcement Lien Resolution approvals.
TRANSPORTATION SERVICES
1)
Adopt a Resolution authorizing the Acquisition of Land by Condemnation
of Fee Simple Title Interests and/or perpetual, non-exclusive road right-of-
way, sidewalk, slope, utility, drainage, maintenance, and/or temporary
construction interests by easement for the construction of the six-laning
roadway improvements for Livingston Road Project between Golden Gate
Parkway and Pine Ridge Road Project, CIE No. 52.
2)
Approve a permit for a block party to be sponsored by the Immokalee
Chamber of Commerce and to be located along Main Street (SR 29) in
Immokalee.
3)
Approve a Budget Amendment recognizing carry forward amounts from
FY00 for the Transportation Services Road and Bridge Fund.
4)
Approve a Budget Amendment for purchase of a bucket truck for the
Traffic Operations Section.
s)
Award Work Order No. WD-008 to Kyle Construction Inc., for SR-29 Canal
Culvert Upgrade (Project No. 31701).
6)
Approve Contract Amendment No. 1 for Professional Engineering
Services by Wilson Miller for Santa Barbara/Logan Boulevard six-laning
from Radio Road to Pine Ridge Road, Project No. 62081.
PUBLIC UTILITIES
1)
Approve appropriations of expenditures based on recognized additional
revenues received in Solid Waste Fund.
2)
Amend Professional Services Agreement for design and implementation
of 30-inch parallel sewer force main on Immokalee Road, Contract 98-
2790, Project 73943.
3)
Approve Work Order for Engineering Services to relocate utilities in
conjunction with U.S. 41 road widening from Rattlesnake Hammock Road
to Barefoot Williams Road, Projects 70045 and 73045.
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February 13, 2001
4)
Accept the temporary construction easement from Maplewood
Homeowners' Association, Inc., for construction of a 20-inch reclaimed
water main project.
5)
Award a Contract to Stevens and Layton, Inc., to construct a 16" Water
Main on Radio Road from Santa Barbara Boulevard to CR 951, Bid 00-
3183, Project 70029.
6)
Approve funding for lawsuit against Boyle Engineering Corporation for
claims arising from the design and construction of the original North
County Regional Water Treatment Plant, Project 70002.
7)
Approve Work Order Number TB-FT-01-02 with Tampa Bay Engineering
for West Winds System Rehabilitation Design.
PUBLIC SERVICES
1)
Enter into an agreement with the Collier County School Board for
Recreational Camp Field Trip Transportation.
2)
Approve the Older Americans Act Continuation Grant and authorize the
Chairman to sign the contract between Collier County Board of County
Commissioners and the Area Agency for Southwest Florida, Inc., D/B/A
Senior Solutions of Southwest Florida.
3)
Approve the Master Agreement relating to Services for Seniors' Grant
Programs and authorize the Chairman to sign the master agreement
between Collier County Board of County Commissioners and the Area
Agency on Aging for Southwest Florida, Inc., D/B/A Senior Solutions of
Southwest Florida.
4)
Approve the Medicaid Waiver Revised Continuation Contract and
authorize the Chairman to sign the contract between Collier County Board
of County Commissioners and Area Agency on Aging for Southwest
Florida, Inc., D/B/A Senior Solutions of Southwest Florida.
5)
Award a contract for Bid No. 00-3177, Transport and Placement of Beach
Compatible Sand to Soil Tech Distributors of Naples, Inc.
SUPPORT SERVICES
1)
Approve contracts with Qualified Engineering Firms for RFP 00-3115
"Annual Contract for Traffic Engineering Consulting Services".
2)
Approval to Award Bid #00-3169 to Shamrock Plumbing Inc., as primary
and Acres and Son Plumbing as secondary provider for on-call plumbing
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February 13, 2001
equipment repair and maintenance.
3)
Approve staffs short list for architectural services for the Courthouse
Annex, Parking Garage and Chilled Water Plant, RFP #00-3173.
4)
To re-appropriate $50,000.00 previously approved and budgeted in Fiscal
Year 2000 from the GAC Land Trust for the design of a Fire Control and
Rescue Station to be located within Golden Gate Estates.
5)
Recommendation to Award Bid #00-$170 to Lehigh Safety Shoe
Company, Iron Age Corporation, Vic's Shoe Repair (Redwing Vendor)
and Total Fire Group (Warrington Vendor) for the purchase of protective
footwear.
EMERGENCYSERVICES
1)
Award RFP #00-3187 "Design Support Services for New Collier County
Emergency Services Complex" to Harvard Jolly Clees Toppe Architects
with Scharf and Associates and authorize staff to proceed with design
activities.
2)
To expand capabilities of the current cardiac monitors by purchasing non-
invasive blood pressure and end tidal C02 detector from Medtronic
Physio-Control.
COUNTY MANAGER
1)
Approval of Budget Amendment Report - Budget Amendment #01-121;
#01-122; #01-135.
AIRPORT AUTHORITY
1)
Immokalee Regional Airport extension of temporary use permit for
Immokalee Regional Raceway.
2)
Establish the project budget for design and construction of Industrial Park
Infrastructure Improvements at the Immokalee Regional Airport.
BOARD OF COUNTY COMMISSIONERS
MISCELLANEOUS CORRESPONDENCE
1) Miscellaneous items to file for record with action as directed.
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February 13, 2001
17.
K. OTHER CONSTITUTIONAL OFFICERS
L. COUNTY ATTORNEY
1)
Approve the Stipulated Final Judgment relative to the Easement
Acquisition of Parcel 362 in the Lawsuit Entitled Collier County v. Tony
Guarino, III, et al, (Golden Gate Boulevard Project No. 6304'1).
2)
Approve the Agreed Order Awarding Expert Fees, Attorney's Fees and
Costs as to Parcel 108 in the Lawsuit Entitled Collier County v. Jose L.
Rey, et al, Case No. 99-3683-CA (Golden Gate Boulevard, Project No.
63041).
3)
Approve the Stipulated Final Judgment relative to the Easement
Acquisition of Parcel 107-T in the Lawsuit Entitled Collier County v. John
B. Fassett, Trustee, et ai, (Livingston Road Project No. 65041).
4)
Recommendation that the Board of County Commissioners approve the
Settlement in Duncan v. Collier County, Cases No. 99-1843-CA-HDH,
now pending in the Twentieth Judicial Circuit in and for Collier County,
Florida, pursuant to which the County would pay $150,000 and all claims
against the County would be dismissed with prejudice, said $150,000
settlement was arrived at during settlement negotiations.
5)
Request by the Housing Finance Authority of Collier County for approval
of a resolution authorizing the Authority to issue multi-family housing
revenue bonds to be used to finance a qualifying apartment project.
SUMMARY AGENDA- THIS SECTION IS FOR ADVERTISED PUBLIC HEARINGS
AND MUST MEET THE FOLLOWING CRITERIA: 1) A RECOMMENDATION FOR
APPROVAL FROM STAFF; 2) UNANIMOUS RECOMMENDATION FOR APPROVAL
BY THE COLLIER COUNTY PLANNING COMMISSION OR OTHER AUTHORIZING
AGENCIES OF ALL MEMBERS PRESENT AND VOTING; 3) NO WRITTEN OR
ORAL OBJECTIONS TO THE ITEM RECEIVED BY STAFF, THE COLLIER COUNTY
PLANNING COMMISSION, OTHER AUTHORIZING AGENCIES OR THE BOARD,
PRIOR TO THE COMMENCEMENT OF THE BCC MEETING ON WHICH THE ITEMS
ARE SCHEDULED TO BE HEARD; AND 4) NO INDIVIDUALS ARE REGISTERED
TO SPEAK IN OPPOSITION TO THE ITEM.
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February 13, 2001
Approve repeal of Collier County Ordinance 74-3 establishing the Golden Gate
Fire Control District Municipal Service Taxing Unit in its entirety.
Approve repeal of Collier County Ordinance 75-9 that called for a Referendum to
establish the Collier County Fire Control District One in its entirety.
Petition R-2000-07 D. Wayne Arnold, AICP of Q. Grady Minor and Associates
representing Hospice of Naples, Inc., requesting a rezone from its current zoning
classifications of "A" Rural Agricultural and RMF-6 Residential Multi-Family to
"CF" Community Facility District. The subject 10.71 acres property consists of
two developed parcels, one with the current hospice facilities and the other one
with a single family residence. The subject property is located on Whippoorwill
Lane (1095 and 1205) off Pine Ridge Road in Section 18, Township 49 South,
Range 26 East, Collier County, Florida.
Recommendation to approve Commercial Excavation Permit No. 59.755
"Longan Lakes Two Commercial Excavation" located in Section 25, Township 47
South, Range 27 East: Bounded on the North by Immokalee Road, on the South
by vacant land zoned Agricultural, on the West by occupied land zoned
Agricultural/mobile home overlay, and on the East by the Main Golden Gate
Canal and then sparsely populated land zoned estates.
18. ADJOURN
INQUIRIES CONCERNING CHANGES TO THE BOARD'S AGENDA SHOULD BE MADE TO
THE COUNTY MANAGER'S OFFICE AT 774-8383.
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February 13, 2001
February 13, 2001
Item #3A, B, & C
CONSENT, SUMMARY AND REGULAR AGENDA - APPROVED
AND/OR ADOPTED WITH CHANGES
CHAIRMAN CARTER: Good morning. Welcome to the
February 13th board meeting, Board of Collier County
Commissioners. If you would, please join with us in the
invocation led by Reverend Harold Brown, followed by the Pledge
of Allegiance.
REVEREND BROWN: Lord, we thank you for the special
blessing that you give us, bringing your angel to us when we're in
the lions' den sometimes with the overwhelming schedules that
we all keep.
So slow us down for a moment and give us a thankful heart
today, for Valentine's tomorrow. Help us to do more than give
lollipops to our grandchildren. Help us to give ourselves to the
significance and source of your love. And as we celebrate that
love, help us to share it with others.
Help us to be mindful of the needs of those that are less
fortunate. And if it be Thy will, bless our County Commissioners,
our county, our state, our national governments.
And may all be safe in our preoccupation with what we can
do in our own little way to bind ourselves with others in
harmonious agreement, somehow reaching consensus. And
through our busy schedules, guided by the angels of your love
toward nobler and higher tasks. And we give Thee thanks for
your leadership. Amen.
(Pledge of Allegiance.)
CHAIRMAN CARTER: Thank you, Reverend Brown, for the
invocation. And as we move into the meeting this morning,
please, any of you who have cell phones, would you turn them off
so that you don't disrupt the meeting?
As our pastor said on Sunday, unless you're expecting a
direct call from God, we would appreciate that you have no cell
phones on during the meeting. Mr. Olliff.
MR. OLLIFF: Good morning, Mr. Chairman. Good morning,
Commissioners. I've got a brief change list to walk you through.
The first item on your change list is an addition. It is an addition
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February 13, 2001
of a proclamation declaring this Literacy Week in Collier County.
And that would be Item 5(A)(1).
I have one change only to the title of Item 13(A)(3) and it's
just a clarification of the actual petition number. The petition
number on the printed agenda reads Petition A-2000-23. It
should read Petition A-2000-03. So I'll make that change for the
record.
The next two items are deletions. They are Items 17(A) and
17(B) on your summary agenda. They were actually advertised
for the meeting of February 27th and inadvertently appeared on
this index. But they will be on the meeting of the 27th.
The last change on your list is a move of Item 16(B}, as in
boy, (1} off your consent agenda to 8(B}(2), which is a resolution
authorizing the acquisition of land. And again, that simply needs
to be on the regular agenda as opposed to the consent agenda.
That move is requested by your staff.
And the last item that I have, Mr. Chairman, which is not on
your change list, is a request that was made early this morning
by Mr. Sabatino, who is the petitioner on Item 13(A}(1), who has
requested an indefinite continuance of that item.
And for the rest of the Board's sake, I think Commissioner
Carter was on the phone this morning trying to contact those
people who we know are generally interested from the public
perspective on that and making sure that they were as aware as
we could make them this morning.
CHAIRMAN CARTER: And to my knowledge, Tom, we have
been able to reach Vera Fitzgerald and she understands that that
item will not be heard and often is very successful in reaching
her community.
MR. OLLIFF: The only other thing I need to do this morning,
Mr. Chairman, is just to note that there are several items that
had been requested as a time-certain hearing.
Items 13(A)(3) and (4} have been requested for a 10:00 a.m.
hearing. And that's, just frankly, in deference to those people
who were here at the previous meeting and waited the entire
meeting and then having those items continued at the end of the
meeting.
Then Item 10(C), which is the item regarding Barefoot Beach
Preserve, that item is requested to be heard at I p.m. And I need
to make that very clear for anyone here who is here for that item.
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February 13, 2001
If you know of anyone else as well, if we could just make
sure that as many people are as aware of that as possible. The
Barefoot Beach Preserve item will be heard at I p.m.
And I always ask to make a note for the public who is here
that if for some reason you cannot attend and would like to have
some of your comments placed as part of the official record, you
can simply provide them to me on one of the speaker slips and
we will make sure that they get included in the official record for
that item.
Mr. Chairman, that's all I have this morning.
CHAIRMAN CARTER: I might also remind the audience, we
plan to break at noon for lunch, so from 12:00 to 1:00 we will be
on a lunch break. You can plan on that accordingly. So I hope
that kind of sets the agenda where everybody knows what we're
going to do today.
Changes by the Commissioners? Commissioner Coletta?
COMMISSIONER COLETTA: Nothing.
CHAIRMAN CARTER: Commissioner Fiala?
COMMISSIONER FIALA: Nothing.
CHAIRMAN CARTER: Commissioner Henning?
COMMISSIONER HENNING: None.
CHAIRMAN CARTER: Commissioner Mac'Kie?
COMMISSIONER MAC'KIE: Just one. On the Board of
County Commissioners, I'd like to add a discussion of the
community of character matter. I'll have some information to
pass out that -- I hope the Board is going to be supportive of our
participation in this community of character. We'll talk about it
then.
CHAIRMAN CARTER: That will be under the Board of County
Commissioners?
COMMISSIONER MAC'KIE: Please. I guess 10(E)?
CHAIRMAN CARTER: 10(E}. Okay. I have one pull this
morning. That is 16(A}(9) and it is in regards to a request to
grant final acceptance of the roadway drainage, water and sewer
improvements for the final plat of Pelican Strand.
I have spoken with legal counsel and I would like to have
that item continued for at least two weeks while they continue
their discussion on golf course impact fees. COMMISSIONER MAC'KIE: Excellent.
CHAIRMAN CARTER: So I don't believe we want to continue
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February 13, 2001
to approve for that development until those issues have resolved.
COMMISSIONER MAC'KIE: Good. Excellent. Excellent
catch. And we can do that.
MR. OLLIFF: So we'll note that that final plat will be
continued to the meeting of February 27th.
COMMISSIONER MAC'KIE: And hopefully they will have paid
what they owe by then and we won't have to worry about this
anymore.
CHAIRMAN CARTER: We'll find out.
COMMISSIONER MAC'KIE: Good catch.
Motion to approve the agenda, consent agenda and
summary agenda as amended.
COMMISSIONER FIALA-- Second.
CHAIRMAN CARTER: All in favor, signify by saying aye.
Motion carries 5-0.
Page 5
AGENDA CHANGES
BOARD OF COUNTY COMMISSIONERS' MEETING
February 13~ 200.!
ADD: ITEM 5(A)t: Literacy Week In Collier County Proclamation
(Commissioner Carter request.)
CHANGE: ITEM 13(A)3: Item should read: Petition A-2000-03.
DELETE: ITEM 17 A: Approve repeal of Collier County Ordinance 74-3
establishing the Golden Gate Fire Control District Municipal Service Taxing
Unit in its entirety. (This item to be heard at February 27, 2001 meeting to
meet advertising requirements. Staff request.)
DELETE: Item 17 B: Approve repeal of Collier County Ordinance 75-9 that
called for a Referendum to establish the Collier County Fire Control District
One in its entirety. (This item to be heard at February 27, 2001 meeting to
meet advertising requirements. Staff request.)
MOVE: ITEM 16(B)1 TO 8(B)2: Adopt a Resolution authorizing the
Acquisition of Land by Condemnation of Fee Simple Title Interests and/or
perpetual, non-exclusive road right-of-way, sidewalk, slope, utility,
drainage, maintenance, and/or temporary construction interests by
easement for the construction of the six-laning roadway improvements for
Livingston Road Project between Golden Gate Parkway and Pine Ridge
Road Project, ClE No. 52. (Staff request.)
February 13, 2001
Item #4A, B &C
MINUTES OF JANUARY 9, 2001 REGULAR MEETING, JANUARY
16, 2001 WORKSHOP AND JANUARY 23, 2001 REGULAR
MEETING - APPROVED AS PRESENTED
COMMISSIONER MAC'KIE: Motion to approve the minutes of
January 9th, 16th and 23rd.
COMMISSIONER HENNING: Second.
CHAIRMAN CARTER: There has been a motion and a second
for approval of the minutes. All in favor signify by saying aye.
Motion approved and carries.
Item #5A1
PROCLAMATION DESIGNATING FEBRUARY 11-17, 2001 AS
LITERACY WEEK IN COLLIER COUNTY - ADOPTED
We now move to proclamations and service awards. First
proclamation I have this morning is -- and the only one we have
today, but a very important one -- is in regards to literacy.
And of course last night Former President Bush and First
Lady Barbara Bush and Governor Jeb Bush were here and they
had an excellent program.
COMMISSIONER MAC'KIE: Raised a little money.
CHAIRMAN CARTER: Raised a little money for this situation.
So I thought in respect to everything that was being done on
that basis, it would be good for us to be declaring a proclamation
on a Literacy Week in Collier County.
So this morning to be present, I understand, is Roberta Rice,
the literacy coordinator for the Collier County Public Library. Is
she here this morning? If you would come up while we do this
proclamation. And also Donna Bronlick, literacy tutor at Marco
Island.
Both are here this morning and joining us for this
proclamation. If you would stand here and look right out at TV
land so that they could see your smiling faces this morning, I will
read the proclamation.
WHEREAS, on each day in Collier County parents read with
their small children and youngsters learn English as a new
Page 6
February 13, 2001
language at school and adults and seniors take the first step to
seek out help with basic literary skills; and
WHEREAS, local literacy providers such as Read Southwest
Florida Literacy Coalition, Guadeloupe Center for Family
Education, Literacy Volunteers of America Collier County, Tri
County Senior Services, Collier County Public Library Literacy
Program, Collier County Housing Authority, Farmworkers Village,
Literacy Council of Bonita Springs, Collier Reading Council,
Collier County Public Schools, Collier County Education
Foundation, Golden Gate Adult Learning Center and Edison
Community College work daily with families and students, young
and old, to improve the literacy skills, including the ability to
read, write and speak English, to compute and solve problems
and to access technology; and
WHEREAS, these skills will enable individuals to function
efficiently and effectively and independently in daily life and to
take advantage of opportunities in their environment and to
participate fully in society; and
WHEREAS, Governor Jeb Bush has established the
Governor's Family Literacy Initiative for Florida to award more
than one million in family literacy grants statewide; and
WHEREAS, Former President George Bush and Former First
Lady Barbara Bush have joined Governor Jeb Bush and his wife,
Columba, this week in Naples for Florida's celebration of reading
fundraiser; and
WHEREAS, as a part of the celebration the Collier County
Education Foundation has hosted a successful community
reading celebration and book drive.
NOW THEREFORE, be it proclaimed by the Board of County
Commissioners of Collier County, Florida, that the week of
February 11, 2001 through February 17, 2001 be designated as
Literacy Week in Collier County.
And that sincere gratitude and appreciation is extended to
the families, students, volunteer tutors and organizations who
value literacy in our community.
DONE AND ORDERED THIS 13th day of February, 2001,
Board of County Commissioners, Collier County, Florida. James
D. Carter, Ph.D., chairman.
I move that we accept this proclamation.
COMMISSIONER MAC'KIE-' Second.
Page 7
February 13, 2001
CHAIRMAN CARTER: All in favor, signify by saying aye.
Motion carries. Thank you.
If you want to say anything, you may step up to the
microphone and give us a few words of wisdom.
MS. RICE: Good morning. My name is Roberta Rice. I'm the
literacy program coordinator for the Collier County Public
Library. And I want to thank you very much on behalf of the
hundreds of students, learners, teachers, tutors and
administrators that work every day to improve their communities
through literacy.
I'd like to thank you on behalf of people like volunteer tutor
Donna Bronlick, who works with the library on Marco Island and
their literacy program.
She works with a student every week, a valued employee of
a landscaping company in the region, and he's learning how to
read, how to write, how to speak English as a second language
and he's studying for his citizenship test. So I applaud the work
that she's doing with him.
I'd also like to thank you on behalf of all the families and
individuals who are working to improve their community, working
very hard to improve their communities one person at a time.
Thanks very much.
CHAIRMAN CARTER: Thank you. As I think our President
said, no child shall be left behind. I think that encompasses, no
adult shall be left behind if we attack and work on these issues.
Item #5B
EMPLOYEE SERVICE AWARDS - PRESENTED
All right. Service awards, Commissioner Mac'Kie.
COMMISSIONER MAC'KIE: Thank you. It's my honor today
to get to thank our employees for their long and valued service to
Collier County. And we'll start with our five-year anniversaries
and that is first Gary Speeth with EMS, if you'd come forward,
followed by Anna Parish, with pollution control, and Amy Taylor,
with planning services.
Next for ten years of service to Collier County we'd like to
ask Virginia Miller with our solid waste department to come
forward.
Page 8
February 13, 2001
And now a rare one, a 25-year anniversary with Collier
County, Mary Anderson, with building review, 25 years.
Item #8A1
RESOLUTION 2001-45, RE ACTIVITY CENTER #9 INTERCHANGE
MASTER PLAN TO PROVIDE LANDSCAPE, ARCHITECTURAL
DESIGN AND TRANSPORTATION ACCESS CRITERIA FOR THE
DEVELOPMENT OF A ZONING OVERLAY AND AMENDMENTS TO
THE LAND DEVELOPMENT CODE - ADOPTED AND STAFF TO
MOVE FORWARD WITH AMENDMENTS TO THE LDC DURING THIS
CYCLE AND INCORPORATE THIS ITEM INTO ALL PERTINENT
WORKSHOPS
CHAIRMAN CARTER: All right. That takes us to community
development environmental services, Item A(1}.
Recommendation to the Board of County Commissioners to
approve a resolution, the Activity Center Number 9 Interchange
Master Plan.
COMMISSIONER MAC'KIE: We're actually going to see -- get
more information about the Interchange Master Plan, I think, is
why we continued it, didn't we?
MS. TAYLOR: Yes. We wanted to coordinate and continue
to coordinate with transportation services to ensure that there
was proper consensus and agreement on the proposed Activity
Center Interchange Master Plan.
And as reflected in the revised executive summary, our
transportation division did adequately review the Interchange
Master Plan and are in consensus with the recommendations to
move forward with particularly the aesthetic improvements
through the Land Development Code, as well as a revision to the
access management plan through the Land Development Code
process, so using the access management plan contained within
the proposed Interchange Master Plan as a guide. CHAIRMAN CARTER: Questions?
COMMISSIONER MAC'KIE: I have a question. Just one. One
of the things that I remembered, Amy, that was the reason we
were doing this Interchange Master Plan was because -- with the
Pine Ridge interchange we had to sort of figure out as we went
how many gas stations were enough and how many were too
Page 9
February 13, 2001
many. And I didn't really see anything in here. Is that to come
later about how we determine when we have enough of a
particular use?
And the architectural stuff and all of that was wonderful.
Although, let me just say, we have color copiers, guys. Let us
have -- when you're showing us color schemes, for God's sake,
let us have color copies.
But when will we get that opportunity to talk about land
uses?
MS. TAYLOR: There is within the Land Development Code
now a provision that -- a separation requirement for gas stations.
That's how that was addressed. They have to be, I think, 500
feet apart. So that is through the Land Development Code.
The Interchange Master Plan for Activity Center Number 9
was put into place in the growth management plan to address
aesthetic concerns and provide a gateway simultaneously. The
boundaries of the Interchange Master Plan were widened to
encompass a couple more properties.
The true intent of the Interchange Master Plan as proposed
through the evaluation and appraisal report of the Growth
Management Plan was to improve aesthetics and to improve
access management throughout the interchange area, activity
center area. Primarily, though, aesthetic concerns so that it
would be an improved gateway.
COMMISSIONER MAC'KIE: I absolutely know that's the
truth. I just wondered, weren't we also trying to do some kind of
-- not master planning necessarily, but something close to
conceptual master planning about where there would be gas
stations and hotels and fast food.
And, you know, I thought that we were going to be more
specific in the land use and I wish that we were. I don't know if
the rest of the Board feels that way. Or if they don't, then I can
just stop talking.
But I wish that we were going to do more of a master plan
for our gateway intersections, not just say how they're going to
look and what the access is going to be. I thought we were
going to be more specific than that. I'd like for us to be. And I'll
just touch and see if anybody else feels that way.
MS. TAYLOR: Yeah. We were general in addressing the land
uses there. There is an encouragement of mixed use. An
Page 10
February 13, 2001
encouragement of, for example, industrial and commercial,
residential and commercial within certain quadrants of the
activity center. So in that sense, land use was addressed
generally.
COMMISSIONER HENNING: I would like to see it market
driven, as opposed to telling somebody what they should do with
their property. I think the industry out there has a greater idea
as how successful they're going to be.
COMMISSIONER FIALA: Well, no. But we were talking about
the Golden Gate interchange and we were saying that we did not
want any industry there.
COMMISSIONER HENNING: Right.
COMMISSIONER FIALA: I understood that we were going to
-- because of the residents and their unhappiness with the way
the interchange was going to be built, we were going to make
sure there was no industry impacting them. So I think maybe a
master plan is in order.
I've also understood that landscaping in these areas is a
safety feature. Yet it can be a detriment to safety if it isn't
planned correctly. And I think level of service needs to be taken
into consideration while we're doing this as well.
So I think we should move forward with a master plan,
taking these comments into consideration as we move forward.
COMMISSIONER HENNING: Oh, I agree. And that isn't what
I was trying to get at.
COMMISSIONER FIALA: Oh, I'm sorry.
COMMISSIONER HENNING: Let's let people develop their
property as they see fit.
COMMISSIONER MAC'KIE: But, Tom, if we do that in Golden
Gate, then people may decide they want to have industrial, you
know. It's our job to provide some guidance.
I absolutely understand. But, you know, the market, we
don't just say willy-nilly, Let the market control. We have a
growth management plan and we have zoning ordinances.
And if we don't impose, for example, a master plan at the
Golden Gate intersection, it's very reasonable to think we'll have
some uses that the neighbors there won't like.
COMMISSIONER FIALA: And we promised them it would be
landscaped.
COMMISSIONER MAC'KIE: And I'm just proposing we do
Page11
February 13, 2001
something similar at this intersection or maybe just have staff go
and look at it and come back and tell us what recommendations
they could give us.
I just would like to master plan these -- all of these
gateways. We blew it on Pine Ridge. I want a master plan like
you do on Golden Gate, but I think we ought to master plan these
as well. Maybe these are already out of the box.
COMMISSIONER HENNING: We already have a zoning there
of a use such as C2, C1, C5. We do have some industrial out in
that.
MS. TAYLOR: Yes. And the Interchange Master Plan does
both or addresses both of these concerns. It provides the
flexibility, as well as provides some controls on the types of land
uses,
There is a 55 percent cap on commercial uses within an
Interchange Master Plan. There is guidelines proposed within
the Interchange Master Plan to encourage mixed uses as
represented on this map here.
So there are some controls, while allowing the market to
function, as well as the regulations and codes that we already
have in place, which would limit some of the types of
development that would cause some traffic and congestion
concerns.
COMMISSIONER MAC'KIE: I'll stop after this. I've heard one
support and one opposition. But having served on this Board for
six years, we had controls in place for the Pine Ridge
intersection too.
We had zoning. We had a comp plan. We had -- we didn't
have what we're going to have here, which is some landscaping,
some beautification, some master architectural themes and that
is an improvement.
But I'm telling you we sat here and watched gas station
after gas station come in at Pine Ridge Road and had no legal
way to turn any of them down because it was appropriately
zoned. It was appropriately zoned.
We're going to find ourselves in the same box here. And it
was painful at Pine Ridge to not be able to have more control
over how this gateway to our community looked, the impression
it left.
It's not so bad right now, but I wish we could have -- I don't
Page 12
February 13, 2001
want to single out any particular waffle restaurants, but, you
know, we might could have done better.
MS. TAYLOR: There is two ways in which we have a way to
address that. First of all, the 500 foot requirement.
COMMISSIONER MAC'KIE: The gas stations.
MS. TAYLOR: The other is the design itself. You put a
Waffle House in and you have a requirement for it to be designed
in a certain way and it doesn't stand out as a prominent feature.
COMMISSIONER MAC'KIE.' Yellow and black.
CHAIRMAN CARTER: Well, I share Commissioner Mac'Kie's
concerns. I read the plan and conceptually it looks great.
COMMISSIONER MAC'KIE: What's here is great.
CHAIRMAN CARTER: However, I am concerned, where are
the really tight standards where we really have control over this?
So that if you're going to have an interchange, it has a theme. Is
it going to be an old Florida theme? Is it going to be a
Mediterranean theme? Or is it going to be mixed?
If you have an industrial park area, how is that going to be
separated and bordered from so people really -- I don't want to
see industrial parks that exist like in other parts of the
community.
Some of it looks great; some of it looks not so good. We'd
like to get them cleaned up. Because you have to have industrial
parks and there is a need for them, but they don't have to be
ugly.
MS. TAYLOR: Within the entire Activity Center Master Plan
there is a requirement that they follow two themes that are
compatible with one another; rural and old Florida.
The palette, the color schemes are compatible. It allows a
certain flexibility within the development or within the activity
center. But it also is compatible with each other. The other is
the landscape menu of material, landscape material. That is
common throughout.
We may, if the Board would like, want to hear the
presentation and might clarify some of those issues from Wilson,
Miller, that developed the Interchange Master Plan, if that would
be of any benefit to show in color what the potential of this area
could be.
CHAIRMAN CARTER: Amy, I guess that was my expectation
this morning because I thought we were going to get more of an
Page 13
February 13, 2001
overview. I mean, I see some of this.
But even though you walk into a development project and
they've got X number of condos there and they've got this laid
out so you have a visualization of it, I've never seen in the county
where we've taken some pieces like this and said, Okay, this is
what it looks like to you. You put it on a table up here and
people could see it. Or anyone ever coming to develop there
would say, This is an expectation. You just can't come in here
and do anything that you want.
There is too many instances where zoning here, people
squeak in. They do things and they say, I'm cooperating with the
codes. I'm cooperating with the zone. And it is ugly.
And we sit here and are frustrated by it. And I say, How do
we control it so that we get uniformity and so that we get the
aesthetics so we have a good-looking community but do not
penalize the people that want to come here and do what they
need to do?
MS. TAYLOR: And I think that's the intent of the
Interchange Master Plan. And through the development of the
Land Development Code changes and the cooperation of the
property owners prior to the Land Development Code changes,
we can begin to make that happen now. I must say that the
property owners have been very participatory in this process.
COMMISSIONER MAC'KIE: That's a good thing.
MS. TAYLOR: They have compromised quite a bit in terms of
access and aesthetics and costs and so forth of when they do
renovate or when they do develop.
And they have been willing, even though this isn't part of the
Land Development Code, to coordinate their projects such that
they are consistent with the Interchange Master Plan as it is
proposed.
So they are coordinated. They are committed to the
Interchange Master Plan and its aesthetic values. And I hope we
can anticipate that will continue.
COMMISSIONER COLETTA: If I may.
CHAIRMAN CARTER: Sure.
COMMISSIONER COLETTA: I have concerns over the
financial impact statement. It seems to be much too broad. Will
this impact the money that is available for the roads themselves?
MS. TAYLOR: That is a separate part that's already within
Page 14
February 13, 2001
the county's mandate to regulate as far as impact fees. Since it
was already a part of the county's code and regulation, it did not
become a part of the Interchange Master Plan because it would
have just been a duplication of effort. So hopefully that
answered your question.
COMMISSIONER COLETTA: I would hope that maybe
possibly in the future when we have this financial impact
statement we might be able to put down what the cost has been
for staff up to this point in time, what we would project. I think
it's a very worthy project that we're working on. I think we might
have to go a little further with it.
I would love to hear from our transportation administrator,
Norm Feder, about this particular thing, how it's going to impact
future roads that are going to go in there. We're talking about a
possible interchange. Is this some feel-good thing we're going to
put down and end up tearing out five years from now?
MS. TAYLOR: No. Actually, working with Mr. Feder, we
added to the executive summary that any aesthetic
improvements to the public rights of way would be consistent
with the interchange improvements and roadway improvements
that are scheduled.
COMMISSIONER COLETTA: I don't want to disrupt your
presentation, but at some point I do want to hear from Mr. Feder.
MS. TAYLOR: At the discretion of the Board, would we --
would you like to move forward and meet with -- or have Wilson,
Miller make a presentation?
COMMISSIONER MAC'KIE: Maybe that could be part of our
transportation workshop or something, Tom. Because I think
what you are hearing is, we really wanted to see this
Interchange Master Plan, not just smile and rubber stamp.
COMMISSIONER HENNING: And we had an opportunity to do
that and I did that. Late in November I met with the consultant
because of the concern of it. And I think the rest of the Board
members had an opportunity to do that.
So Mr. Chairman, I would recommend that we postpone this
to the next meeting so each individual Board member can meet
with the consultant.
COMMISSIONER MAC'KIE: I think the public needs to see --
MS. TAYLOR: The consultant is here today and to present to
all of you today. I'm sorry.
Page 15
February t3, 2001
COMMISSIONER MAC'KIE: I think the public needs to see
the presentation too, though, Tom, not just us individually.
CHAIRMAN CARTER: And remind you we have a time
certain at 10:00 and I don't think we can get through all of that
this morning in 20 minutes and I wouldn't want to rush it.
So we need to find some way to get everybody comfortable
on this Board to review this. And maybe it's a part of a workshop
or maybe it needs to be -- what are you recommending, Mr. Olliff?
MR. OLLIFF: Well, keep in mind, this is an overlay master
plan and the real decisions for this Board don't come until you
start looking at the Land Development Code changes, which is
where -- in terms of development and what occurs out there,
that's where your standards will be developed.
COMMISSIONER MAC'KIE: That is the question I asked at
the beginning. Maybe that is the answer to my question.
MR. OLLIFF: And that's where I think we need to spend the
time. I think conceptually everyone on this Board so far has
agreed they would like to have nice-looking interchanges off of
the interstate.
COMMISSIONER MAC'KIE: This is a good aesthetic plan.
MR. OLLIFF: And that's what this is. But I think the Board
will want to spend time, that kind of quality time looking through
those Land Development Code amendments.
And I think you've got -- one of the public speakers here is
probably going to recommend that in this cycle, he's hoping, from
a petitioner standpoint, let's get those in the Land Development
Code amendment cycle. So that the development community
who owns property out there can know what are the standards
that we're going to be working with.
COMMISSIONER MAC'KIE: Thank you. That's really the
answer that I was looking for.
CHAIRMAN CARTER: We have how many public speakers?
MR. OLLIFF: We have one, Bruce Anderson.
CHAIRMAN CARTER: Okay. I think we need to go to public
speakers.
MR. ANDERSON: Good morning, Commissioners. For the
record, my name is Bruce Anderson. I represent the various
property owners of about 200 acres within this activity center
and we rise in support of this master plan.
I think if you'll look carefully at it, these are the strictest
Page 16
February 13, 2001
architectural guidelines that Collier County has ever imposed on
any area in the county.
COMMISSIONER MAC'KIE: And that part is beautiful.
MR. ANDERSON: And I would just ask that you give your
staff direction to include in the current Land Development Code
amendment cycle whatever necessary amendments there are to
implement this master plan vision statement.
CHAIRMAN CARTER: Questions of Mr. Anderson?
COMMISSIONER COLETTA.' I do.
COMMISSIONER FIALA.' Well, I would just like to move --
COMMISSIONER COLETTA: I'm sorry. Go ahead.
COMMISSIONER FIALA: That's all right. I was going to ask
to move forward and approve this with the provision that we get
into it a little more extensively at our transportation workshop.
COMMISSIONER MAC'KIE: And that we get the -- if you don't
mind, an amendment that we do exactly what Bruce just asked;
and that is to have our staff move forward promptly with the
implementing regulations because --
CHAIRMAN CARTER: Land Development Code.
COMMISSIONER MAC'KIE: Right.
COMMISSIONER FIALA: I'd like that to be amended to say
that. Thank you.
CHAIRMAN CARTER: Are you seconding that?
COMMISSIONER MAC'KIE: I second it.
MR. OLLIFF: Before you take a motion on that, I need Mr.
Mulhere to nod his head for me that that's a reasonable task for
the staff to accomplish in this Land Development Code cycle.
MR. MULHERE: Yes, I think it is.
CHAIRMAN CARTER: Any further discussion?
COMMISSIONER COLETTA: Just one point. I still haven't
heard from Mr. Feder and I'd just like to hear a brief comment
from him.
CHAIRMAN CARTER: Sure. Mr. Feder, if you would
comment for Commissioner Coletta, please.
MR. FEDER: Yes. As noted by staff, we have worked
forward on this. You'll see a provision in there that basically
says that the access issues which were our concern will be
maintained as they are right now in the Land Development Code
until such time as it's changed.
I think the key issue is that we need to address it in the
Page 17
February 13, 2001
Land Development Code. That was our issue before and I think
it's been addressed with what you have in front of you today.
I would note that probably rather than having a
transportation workshop, that this really be addressed as part of
the review of the Land Development Code.
CHAIRMAN CARTER: Thank you, Mr. Feder. Any further
discussion? All in favor, signify by saying aye. Motion carries 5-0.
I think it was an excellent suggestion by the Board this
morning that we incorporate this into transportation, that we
incorporate it perhaps in the planning workshop so that major
issues like this are moved forward in those workshops so that we
never lose sight of how these are integrated and put together.
Item #8A2
REPORT TO THE BOARD OF COUNTY COMMISSIONERS ON A
PROPOSED TIMETABLE AND WORK PLAN OUTLINE FOR AN
UPDATE OF THE GOLDEN GATE AREA MASTER PLAN (GGMP) -
OPTION #2 AS OUTLINED IN THE EXECUTIVE SUMMARY; AND
STAFF DIRECTED NOT TO PROCESS PRIVATE AMENDMENTS -
APPROVED
We'll move to the next item, report to the Board of County
Commissioners on a proposed timetable and work plan, outline
for an update on the Golden Gate Area Master Plan.
MR. LITSINGER: Good morning, Mr. Chairman and
commissioners. Stan Litsinger of the planning staff. First of all,
I'd like to thank you for the new assignment we just received.
As you had directed on January the 9th, we are back today
to report to you about forward options for a restudy, reanalysis
and rewrite of your Golden Gate Area Master Plan.
Without getting into specific detail in our recommendations,
as is very clear from our current work plan that we have in the
comprehensive planning staff and looking at the activities and
the timing of various work products that are underway, your
planning staff is strongly recommending that we begin an
amendment process for the Golden Gate Area Master Plan in the
spring planning cycle of 2002, using existing staff resources.
We have outlined a number of reasons for that. If you look
Page 18
February 13, 2001
at the list of activities associated and the time frames
associated with doing a complete reanalysis and redrafting of
the master plan, you can see that there are a number of items,
particularly listed on page 2 of your executive summary under
Item B, regularly scheduled meetings, which would include
review of many current products which will not be finalized until
sometime in the next 12 months, which will have significant
impact on the final outcome and content of your new Golden
Gate Area Master Plan.
One other thing that I would note in support of our
recommendation is the fact that I had a discussion with a couple
of my staff members as late as this morning relative to the timing
of a major amendment to the Golden Gate Area Master Plan
being submitted to the Department of Community Affairs prior to
the adoption of the rural fringe amendments and whether there is
a possibility to have it found in compliance prior to an
acceptance of the rural fringe.
Also, I feel very important to a --
COMMISSIONER MAC'KIE: I'm sorry, Stan. You're raising a
question or you know the answer to the question?
MR. LITSINGER: I anticipate the answer.
COMMISSIONER MAC'KIE: And you anticipate that --
MR. LITSINGER.' We'll have a very strong possibility of
compliance issues no matter how comprehensive our work
effort.
COMMISSIONER MAC'KIE: Translation --
MR. LITSINGER: Prior to adoption of the rural fringe final
order amendments.
COMMISSIONER MAC'KIE: .Translation, the State wants us
to do the fringe amendments before anything else --
MR. LITSINGER: Reading the final order, is very specific in
that it says that the rural fringe will address many of the issues
which must be contained in the Golden Gate Area Master Plan.
One other note before I ask your direction and that would be
the fact that we would hope within the next 12 months that we
would see some -- and perhaps Mr. Feder can give us some input
on this -- a finalization of that Golden Gate Interchange Master
Plan, if you will, from FDOT relative to how it will impact the
Golden Gate Area Master Plan as well and how we can
incorporate and influence that as well. And with that I would ask
Page 19
February 13, 2001
your direction.
CHAIRMAN CARTER: Stan, your recommendation, is that
the direction that you're looking for from the Board --
MR. LITSINGER: That would be --
CHAIRMAN CARTER: -- to incorporate a work plan, et
cetera, et cetera. And if we do that, does that satisfy your
concerns that you have raised to us this morning?
MR. LITSINGER.' I believe it does, sure, sir.
COMMISSIONER MAC'KIE: I'll move staff recommendation.
COMMISSIONER HENNING: I have some questions.
CHAIRMAN CARTER: Okay.
COMMISSIONER FIALA: Do we have to have a second?
CHAIRMAN CARTER: Do you second it?
COMMISSIONER FIALA: I'll second it.
CHAIRMAN CARTER: Okay. We have a motion and a
second. Commissioner Henning.
COMMISSIONER HENNING: The Golden Gate area is already
platted, so how is this affected by the rural fringe?
MR. LITSINGER.' The rural fringe will involve changes to
possible land uses and all of -- there are areas in the rural fringe
that are in the Golden Gate Area Master Plan now.
I anticipate intuitively that it's a part of the Golden Gate
Area Master Plan and redraft that we would propose to remove
the Golden Gate southern estates, southern blocks, if you will, as
part of that comprehensive plan amendment.
That in itself may or may not be an issue with the
Department of Community Affairs. I can only anticipate how they
would react to these amendments, which I imagine would be
extensive before they see and approve the final order
recommendations, which will address both land use, natural
resource protections, habitat, wetlands and all of these issues of
plat to the Golden Gate Area Master Plan.
COMMISSIONER HENNING: Where are we at with the rural
fringe committee? And I must say this. I've heard so many
things that we're dragging our feet on it. I don't know if that's
true or not. I know we've got some great people working on that.
MR. LITSINGER: We will meet our deadline.
COMMISSIONER HENNING: The deadline is when?
MR. MULHERE.' For the record, Bob Mulhere, planning
director. The current schedule predicts adoption of rural fringe
Page 20
February 13, 2001
amendments in about one year, which would be about six months
-- or four to six months ahead of the final order requirement that
we have amendments in place prior to June 22nd, 2002. So
we're moving forward to have adoption about four to six months
prior to that date.
In order to actually meet the requirements of the final order,
it says those minutes have to be effective, which means there is
a challenge period of about 60 days, 45 plus 21 days. So it's
really a few months even after that before we actually meet the
final order requirements.
However, I would suggest to you that just having those rural
fringe amendments in a transmittal format would be sufficient to
allow us to collaterally move forward with the Golden Gate
Estates Master Plan. And that's why I think Stan raises these
issues, because transmittal is probably at least six months away.
COMMISSIONER MAC'KIE: And if I just can take a chance to
say, one, either in conjunction with transmittal of those or prior
to, I assume that there is some kind of a county road show
planned where we take this -- since the hallmark of this is to be
public participation, I assume we're going to take it out to the
people.
MR. MULHERE: We absolutely are.
COMMISSIONER MAC'KIE: Good man.
COMMISSIONER COLETTA: If I may.
CHAIRMAN CARTER: Commissioner Coletta.
COMMISSIONER COLETTA: What was the exact motion as
far as which one of these three alternatives was proposed?
CHAIRMAN CARTER: The recommendation is --
COMMISSIONER MAC'KIE:
COMMISSIONER COLETTA:
existing projects?
COMMISSIONER HENNING:
COMMISSIONER COLETTA:
Is number 4.
Number 4 being complete
2002.
Yeah. That's not realistic. I
want to remind you, in the last two years in the planning
community known as the rural estates, there has been nearly
8,000 building permits issued, 2,864 new residential units built,
8,274,000 square feet of building space added, almost $305
million in new construction.
We have something that's taking place out there right now
that is unprecedented and it will be in the next couple of years.
Page 21
February 13, 2001
The people out there are demanding certain services. They're
demanding that some commercial areas be set aside.
We're getting developers coming to us on a regular basis
wanting to do this. They want to take residential land in some of
the most inopportune places and do this without the public
having a say like they would in the master plan.
If anything, we need to accelerate this plan, hire an extra
staff person and go with option number 2 here, which would start
the process going forward in March of 2001, which would be the
month after the end of the rural fringe committee's completion,
what they're looking at.
At least they'll have enough body to what they have
prepared so that we'll be able to take that into consideration.
It's going to take a long time to get it off. And that would give us
a completion date of August 2002.
We're talking a little bit more money, but I guarantee you
that Golden Gate Estates is going to be well worth it. We have
something that we have preserved for a long time. And we're
going to need the help of this Commission to be able to hold the
line on it.
And as far as taking other projects off and removing them,
why is it Immokalee is always the stepchild that has to take the
beating? I won't accept it. I hope that you rethink your motion
and we can reconsider it for option 2.
CHAIRMAN CARTER: Wait a minute.
COMMISSIONER MAC'KIE: I didn't intend to be doing
anything to Immokalee, so let me look again. Complete existing
projects and begin restudy in early 2002 was --
COMMISSIONER COLETTA: I'm sorry. You're right. Your
motion didn't include it. But I mean, one of the alternatives
offered to bring it up forward faster was to do away with these
particular ones.
COMMISSIONER MAC'KIE: Yeah. Forget that.
COMMISSIONER COLETTA: I say that this project in Golden
Gate Estates is just as important as the triangle, just as
important as any of the other projects that we have before us.
And we need to move forward on it now or else we're going
to have more developers approach us, wanting to put a
commercial entity out there to meet the needs of the public. And
we're going to be forced to say yes. We can't tell people they're
Page 22
February 13, 2001
going to have to wait forever for this.
CHAIRMAN CARTER: Excuse me, Commissioner. I don't see
how that's going to affect the -- if we have to have the rural
fringe study incorporated in as a part of this, we're not going to
be able to accelerate that schedule.
COMMISSIONER COLETTA: You're looking to complete it
the month before. In option number 2, if we're looking at one
year for the completion, we'd be February, what, 2000 and --
MR. LITSINGER: Excuse me, Commissioner. If I might
interject. As Mr. Mulhere indicated, we expect to have
amendments relative to the rural fringe recommendations ready
for transmittal very early in 'O2.
CHAIRMAN CARTER: Right.
MR. LITSINGER: Or late '01 perhaps.
COMMISSIONER MAC'KIE: But what I heard him say, I think,
is that as soon as we transmit we can start working on Golden
Gate. I want to start on the Golden Gate Master Plan as fast as
we can do it and as fast as it can be processed through. I don't
want it -- it's so touchy, the fringe and the order that we're under.
COMMISSIONER COLETTA.' I understand. But it
encompasses one big area all the way from Golden Gate City
right on through.
COMMISSIONER HENNING: Why can't they be done in
parallel?
COMMISSIONER MAC'KIE: Maybe they can starting -- well,
we can't submit one before the other.
MR. OLLIFF: No. But that's the recommendation that is
basically recommendation number 4, which is -- in all honesty,
we simply don't have the staff resources, given the other
overlays and master plans and comp plan issues that we're
working on in long range and current planning to do this in-house
right now.
If you want to do it concurrently -- it's really a question of
whether you want to do it sequentially or concurrently. And the
ability for us to do it concurrently requires us to bring on a
consultant in order to have enough resource to be able to put
towards it.
My suggestion to you is, that if you want to accelerate this
project, that you allow us to come back with what would be a
reasonable time in order to get a consultant so that we're not
Page 23
February 13, 2001
wasting our time and effort so that we're doing things that are
going to be in conflict with the rural fringe committee's work.
But there seems to be a lot of work that could be done early
rather than waiting for a completion or transmittal point. Let's
go ahead and get started.
And why don't we bring you back sort of an overlapping
schedule, if you will, to bring a consultant on board, to allow us
to do the legwork in advance as much as possible. And then a
lot of times it's a lot easier to amend or tweak a plan that you've
worked on than it is to start from scratch.
COMMISSIONER MAC'KIE: I'm going to withdraw my motion
because that's exactly what I'm looking for.
CHAIRMAN CARTER: And in conjunction with that it seems
to me, Mr. Olliff, the question I guess is, do you hire a staff
person, use a consultant?
If you hire another staff person, do we have future projects
where you can absorb and use that person? And if so, I would
certainly see a combination of three and four together so that
you could do these things.
MR. OLLIFF: Well, I think we looked at this one in isolation
because it is an amendment to an existing master plan, but we'll
look at the subsequent workload after that and see if we think it
would make more sense for us to bring on a staff person.
Because obviously we can generally do that less expensively
than we can a consultant.
COMMISSIONER COLETTA: If we're short staffed, I think we
owe it to the public to provide the extra staff person so we can
go forward with our projects.
CHAIRMAN CARTER: The problem is, Commissioner-- I
agree with you, but you've got to look in the marketplace and if
you can find somebody. And everybody has the same problem.
Where do you find the people to do it?
So they may have to search six months to find somebody.
That may be the option of going to a consultant to do this in
tandem, as you're suggesting.
So I guess that really gets down to the management side. I
don't want to micromanage from this dais. Although I think what
I hear you saying is, let's get it in tandem and let's try to
incorporate three and four together.
COMMISSIONER COLETTA: That's correct. Mr. Henning's
Page 24
February 13, 2001
idea of running them parallel is an excellent idea.
MR. OLLIFF: Mr. Chairman, you do have three registered
speakers on this item.
CHAIRMAN CARTER: Let's go to registered speakers.
MR. OLLIFF: The first speaker is Rich Yovanovich, followed
by Wayne Arnold.
MR. YOVANOVICH: Good morning, commissioners. For the
record, Rich Yovanovich. I'm a little confused as to what the
schedule is going to be now. But what I was originally planning
to support was staff's recommendation of making sure you
address the concerns in the rural area with the Department of
Community Affairs.
Because I think if you tried to run them parallel, you don't
know exactly where you're going to -- where you're going to
resolve your issues with the Department of Community Affairs.
So you may be redoing the work you're already doing with a
parallel track.
And I can only tell you from experience in going through the
final order and representing clients in that, that working with
DCA is a process that takes a while to find out what that final
result will be. And you can be wasting time and resources by
trying to anticipate what they will or will not support.
So what we would -- what I would like to see happen is,
follow staff's recommendation, resolve the issues on the final
order first and then deal with that.
I do understand, Commissioner Coletta, the issue in -- east
of 951 seems to be an area that's rapidly, rapidly expanding. And
that's an area that the primary focus, I think, is what was being
directed at this time was dealing with east of 951. So focusing
there is another avenue as to support looking at that area first
since that seems to be an area that's the primary --
COMMISSIONER COLETTA: I think there is enough direction
that we could go forward with it and incorporate the final
directives we get from the State in our final plan.
But there is so much to be done. We're talking about the
urban area, the urban fringe area and of course the rural area;
and every one of them has a different consideration. There will
always be a study underway.
And this is another study that I think we can incorporate
what's already there and start working forward, leave some gaps
Page 25
February 13, 2001
in it to accommodate what may have to be done. And sure, when
we get towards the end, we'll have a much more definite
direction to go.
MR. YOVANOVICH: Again, I would just echo the staff.
COMMISSIONER COLETTA: I understand. We have a
number of constituents out in that area that are getting a little
bit teed with us for not producing.
MR. YOVANOVICH: I understand.
CHAIRMAN CARTER: Next speaker, please.
MR. OLLIFF: Next speaker is Wayne Arnold, followed by
your last public speaker, Pat Humphreys.
MR. ARNOLD: Good morning. Wayne Arnold, with Grady
Minor & Associates. I won't speak directly to Mr. Yovanovich's
comments, but I did originally come to support staff's
recommendation to begin this process after you've gotten a
handle on the rural assessment as well as the rural fringe.
Because I think that there are a lot of benefits to be gained by
following -- rather than going through currently.
But I guess one of the things that I would suggest to you is
that the Golden Gate Estates area east of 951 clearly is the area
where the most impact is related to the platted lots, the
commercial development potential.
There are some isolated parcels in the urban area, if you
will, that don't have the same characteristics of the larger part of
Golden Gate Estates that is adjacent to the rural assessment
area. And I think that you can clearly make a distinction
between the two areas.
And I think when you also look east of 951, there is a very
unique area that stands out that is part of not only the Golden
Gate Master Plan, but it's also part of the future land use element
of the comprehensive plan; and that is the rural settlement area,
which is otherwise known as Orangetree Development.
It's very unique, but it doesn't hold the same characteristics
as the larger part of Golden Gate Estates because they're not
estate lots. But it was a settlement of a lawsuit and it is
distinctly different than the rest of Golden Gate Estates.
And I'm speaking to this primarily because one of staff's
recommendations is that you hold plan amendments in abeyance
during this process. That's something that you didn't do during
the development of the last evaluation and appraisal report and
Page 26
February 13, 2001
process to the comprehensive plan.
It's not something that was done during the development of
the Golden Gate Area Master Plan back in 1989. Nor was it done
when you were adopting the Marco Island Master Plan or
Immokalee Master Plan.
So I would say that there is a process here by which if
you're going to accelerate the process to study it, that you still
have to allow people who have been looking at property to
potentially come in and offer up some of the amendments to
them, especially if they're in areas that aren't under the same
pressure to develop that you have for the larger part of the
estates.
I guess my recommendation to you in summary would be to
hold to the 2002 schedule. If the Board of County Commissioners
desires to accelerate that schedule, I would hope that you would
limit its scope to the areas east of 951 and exclude the rural
settlement area from that study area. Thank you.
CHAIRMAN CARTER: Thank you. The next speaker, please.
MR. OLLIFF: Pat Humphreys.
MS. HUMPHREYS: Good morning. My name is Pat
Humphreys and I am speaking for myself as well as the Golden
Gate Estates Area Civic Association.
Although the association has not had a formal vote on the
master plan for Golden Gate, I have been directed by Karen
Akard, our president, to express appreciation for the county's
assistance in expediting an update of this plan.
We have addressed the commissioners several times over
the past years regarding requests for indiscriminate zone
changes that would have allowed residential property to be
commercialized in the estates.
Preventing shopping centers and services is not our goal.
Providing quality shopping centers rather than strip malls is.
Locating service providers in appropriate areas is. We want the
estates to be a desirable place to live, not a speculator's
paradise.
The widening of Golden Gate Boulevard is due for
completion in the fall of 2002. There are many vacant lots on
this road. My fear is that this county is going to be inundated
with zoning changes for this road to commercialize it. It is
important that a plan be in place to counteract these requests.
Page 27
February t3~ 2001
The time is right. A community character design study is
ready for review. Dover Coal, the creator of this study, is the
guest speaker at the next civic association meeting.
An active 350 member civic association is anxious to
participate and cooperate with the county to make our
community a place that we can be proud of and we need your
help. Thank you.
CHAIRMAN CARTER: Thank you.
Pleasure of the Board, looking at Items 4 and 3, it's staff
recommendations. And based on what Wayne Arnold said, it
seems to me that we ought to give staff flexibility in managing
this and reporting back to us and give them leeway to
incorporate all this and stay on their schedule.
COMMISSIONER HENNING: I'd like to make one comment,
that the Golden Gate Master Plan encompasses on the west side
951 also. And I know that the Willows, some of the people out
there that do not want commercial. But we need to put it in that
area and look at the whole picture. So I just want to make that
clarification.
CHAIRMAN CARTER: Do you feel that's incorporated in this,
Commissioner Henning?
COMMISSIONER HENNING: It most definitely is. West of
951 --
CHAIRMAN CARTER: I mean, you're comfortable that it's in
here and that it's going to be dealt with?
COMMISSIONER HENNING: It is. I just want to make that
clarification.
CHAIRMAN CARTER: Okay.
COMMISSIONER COLETTA'. Could we hear the motion
again?
COMMISSIONER MAC'KIE: I withdrew my motion. There is
not one.
CHAIRMAN CARTER: There is not a motion on the table.
COMMISSIONER COLETTA.' Okay. I would like to propose a
motion at this point in time that we follow option number 2,
which is to prepare an RTP for a consultant service to conduct a
Golden Gate Master Plan restudy beginning in the spring of 2001,
utilizing approximately .05 of the FTE, existing support from the
staff, to also bring in a consultant as need be to run this plan
concurrent with the other ones that are out there, to consult with
Page 28
February 13, 2001
staff on a regular basis to see where everything is and bring it
together at some final point when it's there.
But there is so many different entities on this that we can be
working on. We can make sure that we leave the south block out
at this point in time. We can -- that when we get to the rural area
where the study is and it's moving forward in the rule fringe area.
We can take on the issues that will be of little concern to
the State, possibly, as far as greenery areas, green areas, parks,
start thinking about that different process and still leave the
options open for the end.
But there is a lot of work in Golden Gate City that won't be
affected. And also, east of 951, the first mile is still in the urban
area. And it would give us a certain amount of latitude to be able
to start our planning process, to get the people in place.
They can maybe work with the rural fringe committee and
be part of that process too. And I think the whole thing would
come together in a very nice manner.
Meanwhile, we do give the staff latitude to be able to
interject if we're getting too far ahead of ourselves so we can
stop and draw back a little bit and move forward at times that
are appropriate.
COMMISSIONER HENNING: And I see that recommendation
is, the Golden Gate Master Plan won't be done until after the
rural fringe. So I don't see where there is a conflict, so I second
your motion.
COMMISSIONER MAC'KIE: Tom, we're going to need some
advice.
MR. OLLIFF: The only advice that I'm going to give you is
that just recognize that from a good staff work perspective we
are probably going to -- in my terms -- backload this contract, if
you will.
In other words, the amount of work that's actually going to
be done is probably going to be fairly light early and fairly heavy
late, so that we're not redoing a bunch of work as a result of the
work from the rural fringe.
Also, recognize that I think it's very, very important that we
don't even consider talking about or accelerating this project to
any point and then letting the public think that we're going to be
transmitting any sort of a Golden Gate Master Plan update prior
to having the issues resolved between DCA and Collier County on
Page 29
February 13, 2001
these judge-ordered final order issues.
So I think as long as we go into this project with this
acceleration schedule with the understanding of those two
issues and an understanding that we're going to have to add from
this particular recommendation a .5 minimum FTE in order to be
able to pull this off, I think it's fine.
COMMISSIONER MAC'KIE: The cost?
CHAIRMAN CARTER: And the cost --
MR. OLLIFF: We'll have to bring that back after the RFP and
the consultant.
CHAIRMAN CARTER: And this comes out of a general fund
which affects ad valorem taxes. So that's all I got to tell
everybody, is that when you do this -- and I'm not saying you
shouldn't do it -- but you have to then be able to support
whatever it takes through ad valorem taxes to accomplish your
goals.
COMMISSIONER COLETTA: I understand that. And so are
the 20-some other projects that are out there coming out of ad
valorem funds. And this is just another part of the county and I'm
sure we're all willing to accept that responsibility.
COMMISSIONER MAC'KIE: And you agreed to add Tom's
comments --
COMMISSIONER COLETTA: I'd like to have them added.
CHAIRMAN CARTER: Mr. Litsinger has--
MR. LITSINGER: I would ask if Mr. Coletta would add to his
motion to direct staff not to process private amendments during
this study period.
COMMISSIONER HENNING: One more time, please.
MR. LITSINGER: Direct staff not to process private
amendments during the restudy period.
I like that. In other words, this
COMMISSIONER COLETTA:
is in the form of a moratorium?
COMMISSIONER MAC'KIE:
say that word.
COMMISSIONER COLETTA:
don't do things.
He was trying real hard not to
It's a limited period in which we
MR. LITSINGER: It's the events we plan by.
COMMISSIONER COLETTA: I agree 100 hundred percent and
I appreciate that feedback.
COMMISSIONER HENNING: That clarification, does that
Page 30
February 13, 2001
include schools and fire, police?
MR. LITSINGER: No, sir, that would not include emergency
services and public facilities.
COMMISSIONER HENNING: Thank you.
CHAIRMAN CARTER: Any further discussion on the Board?
All in favor, signify by saying aye.
Opposed, by the same sign?
(No response.)
CHAIRMAN CARTER: Motion carries.
COMMISSIONER COLETTA: I'd like to thank staff for all the
work that they have put into this.
Item #13A3
PETITION A-2000-03, ANTHONY P. PIRES, JR., REQUESTING AN
APPEAL OF THE COLLIER COUNTY PLANNING COMMISSION'S
APPROVAL OF BOAT DOCK EXTENSION BD-2000-20, APPROVED
ON NOVEMBER 2, 2000 FOR PROPERTY LOCATED AT 372 OAK
AVENUE, FURTHER DESCRIBED AS LOT 9, BLOCK 1, CONNER'S
VANDERBILT BEACH ESTATES UNIT 2 - APPEAL DENIED
CHAIRMAN CARTER: We now move to a time-certain item
on the agenda.
(Thereupon, an off-the-record discussion was had.)
CHAIRMAN CARTER: We are at -- let me jump down here.
MR. OLLIFF: 13(A)(3), Mr. Chairman.
CHAIRMAN CARTER: 13(A}(3}. And we need to be briefed by
legal counsel because the Board now steps into an appellate
court mode. We are judges and it is outside of the normal
framework of which we operate.
So I think it would be appropriate for Mr. Weigel to review
with us our direction in the situation.
MR. WEIGEL: Good morning, Mr. Chairman and
commissioners. In regard to these appeal Items 13(A)(3} and
13(A)(4), I will restate and perhaps right a little more detail of the
statement that I provided you two weeks ago prior to these
items being continued to today.
For your information, the public, those people that have
signed up to speak, this is an appeal of a final determination
made by the Collier County Planning Commission in this case. It
Page 31
February 13, 2001
has to do with a determination regarding petition for approval of
boat docks.
The Board of County Commissioners sits as an appeal forum
today. The hearing process before them is not a new trial or as
is often called a trial de novo. It is a matter of review by this
Board of the action taken by the planning commission on these
agenda items.
The standard for review, as I've stated before, is limited. We
have passed out to the Board of County Commissioners, provided
counsel representing the appellant, petitioners and speakers
who have signed up the standard for that review. And for the
benefit of all, I will read the standard of review that we are
providing in written form.
The planning commission decision cannot be modified nor
rejected unless the Board of Zoning Appeals, that is this Board of
County Commissioners sitting today, finds that the decision of
the planning commission is, one, not supported by substantial
competent evidence or is contrary to the growth management
plan, the future land use map, the code, meaning the Land
Development Code, the official zoning atlas or building code,
whichever of those are applicable.
Now, in regard to Criterion 1, if the matter is not supported,
the decision of the planning commission is not supported by
substantial competent evidence, what are we talking about with
substantial competent evidence?
Case law has shown us and defines it thus: Substantial
competent evidence is evidence that a reasonable mind could
accept as adequate to support a conclusion.
It is not the role of this Board of County Commissioners to
substitute its judgment for the conclusion -- for the decision of
the planning commission.
It is the role of this Board in its appellate review to
determine if the decision of the planning commission is
supported by substantial competent evidence; evidence that a
reasonable mind could accept as adequate to support the
conclusion. Therefore, the roles have limitation. The roles are
actually fairly simple.
Another question that will come up again today, as it did
two weeks ago, is the time presentation by the appellant,
response by petitioner and also the opportunity or lack of
Page 32
February 13, 2001
opportunity for public speakers.
As I stated two weeks ago, this is not the typical public
hearing where the Board is making a quasi judicial decision and
is not only the ultimate decision maker, but the principal
decision maker here.
This is a standard of review with this Board sitting
effectively as an appellate court. And like an appellate court,
there will be advocates proposing, looking to persuade this
Board to either overturn the ruling of the planning commission
below or to uphold the decision of the planning commission
below.
The advocates for the parties, the respective parties are of
record. They're all represented by counsel. This Board of County
Commissioners is advised not to allow new testimony, new
evidence to come before it today. It's limited to the standard of
the evidence, discussion and points that were before the
planning commission below.
So there will be no new exhibits or demonstrable evidence
provided to this Board today. Reference may be made to those
exhibits and demonstrable evidence and testimony that was
made to the planning commission when the planning commission
heard this item.
As I've stated, there are counsel of record for all of the
parties here. And as I stated two weeks ago, it is my opinion
that their limitations -- and I advise this Board not to allow the
public generally or, in fact, the named petitioners or appellants
to speak to this Board.
They may have spoken to the planning commission below.
That was part of the presentation that was made below. Counsel
for the petitioner, counsel for the appellant can point to the
testimony made by their clients at the planning commission
hearing below.
But I will counsel this Board, and I do so now, not to allow
testimony of other than -- an advocacy of other than the counsel
on the record for these matters today. If there are any
questions, I will be happy to respond to you.
CHAIRMAN CARTER: Well, if I understand that correctly, the
counsel representing each side will speak to us today and they
can make reference to any of the testimony that is in our
documents. But none of those people who were involved in that
Page 33
February 13, 2001
will come and speak to us today. We're limited to two
presentations.
MR. WEIGEL: That is correct. And you will probably be told,
Well, that's not what you've done in the past. Well, I will say
these appeals are different than the Board sitting typically,
making its quasi judicial decisions to come to it in the normal
context. You're sitting as an appeal Board today.
In regard to any appeals in the past, there also may be
distinction from those. Because even under our Land
Development Code, there is a subtle but important distinction
between administrative appeals, such as Dolphin Cove, the
Goodland appeal, and this appeal, which is not an administrative
appeal.
And we believe the distinctions are important. And the
limitations that I tell you are based upon observing those
distinctions. It's not by virtue of missing the subtleties of our
Land Development Code in that way. And I advise you today.
And if there should -- I will say this too. If there should be
issues that someone believes are -- that you're acting upon legal
advice that isn't appropriate, we're prepared to argue and
discuss that in the appropriate court forum if necessary.
But it's not because of either question or the advocacy of a
different position that I change my legal advice to you at all in
this regard. I tell you what I believe is the law and we're
prepared to defend it on an appeal, no matter who may appeal,
based on your decisions today.
CHAIRMAN CARTER: Are there any questions on the part of
the Board?
COMMISSIONER MAC'KIE: Yes.
CHAIRMAN CARTER: Yes, Commissioner Mac'Kie.
COMMISSIONER MAC'KIE: Just because this is an unusual
process, if this were, for example, scheduled for a hearing before
a real appeals court instead of us, they would be allowed about
how much time? I mean, what is a reasonable amount of time for
the lawyers to make their cases? I don't have any idea how we
should control that.
MR. WEIGEL: Well, I can tell you. I'll answer your question;
and that is, that typically in appeals court you may have up to 30
minutes.
COMMISSIONER MAC'KIE: For both' sides or half an hour
Page 34
February 13, 2001
each?
MR. WEIGEL: Each side with times for rebuttal. But this is a
prerogative of the chair, obviously consistent with the Board's
thoughts. Although we talked about ten minutes per side two
weeks ago, in talking with all of the counsel representing the
interests here today, it's my understanding that -- and they may
want to get on the record that perhaps an outside time of 20
minutes for the appellant may be necessary.
And that the petitioners, who are in essence appellees
looking to have you uphold the decision of the planning
commission, need significant time less than 20 minutes.
So for the parameters, there you are. It looks like 20
minutes may be the outside. But they may want to comment on
that to you and I don't want to stop that for you.
CHAIRMAN CARTER: We may allow a rebuttal in that
process?
MR. WEIGEL: You may.
CHAIRMAN CARTER: All right. What I'm going to do is call
for a ten-minute break before we start this. Because once it's
started, I don't want to break the flow. So we're going to take
ten and be back here at 10:30 for the presentation by counsel.
(Brief Recess.)
CHAIRMAN CARTER: Board of County Commissioners is
back in session. Would you please take your conversations
outside if you're not a part of appellate court hearing? If you
have cell phones, please keep them off.
We will begin proceedings. All we need is the attorneys.
Mr. Weigel, in regards to disclosures on this issue, what is
necessary on our part?
MR. WEIGEL: It is appropriate for the Commissioners to
provide for the record their ex parte communications that they
may have had concerning these agenda items. They should, if
they can, indicate which item you may have had contact about,
and it may be both.
We have purely advocacy here today by attorneys. There is
no requirement that attorneys be sworn in. They are not
testifying. They are advocates.
COMMISSIONER MAC'KIE.' I could do disclosure.
Obviously, all of the e-mail, telephonic and other issues have
been documented and are available in our office.
Page 35
February 13, 2001
But individually, I met with Mr. Pires, I think on both of these
petitions. I'll say that he was very careful to be sure that our
discussions were with regard to items on the record, that we
didn't talk outside of the record.
I have met briefly with Mr. Yovanovich with the same
limitations. Also, there is another -- who is the other woman
lawyer who is involved in this?
CHAIRMAN CARTER: Lisa Barnett.
COMMISSIONER MAC'KIE: Lisa Barnett, duh, and -- and with
Rocky Scofield. And then I've gotten, as I said, other outside
correspondence. Is that adequate, David?
MR. WEIGEL'- Sounds very good to me.
COMMISSIONER FIALA: I also must disclose that I have also
met with just about everybody that Pam has mentioned, other
than Mr. Yovanovich. Also with Rocky Scofield, Lisa Barnett.
I also took a boat ride with residents there to see both dock
areas. Plus I spoke with some of the neighbors that were on a
pier as well. So that's my disclosure.
COMMISSIONER MAC'KIE: If I could just add to mine,
because I forgot I drove down and did a site visit. Apparently,
that is also reported for disclosure. I did look at the property.
COMMISSIONER COLETTA.' I did not go to the site. I
thought that that wouldn't be appropriate, in my own view.
I spoke to the different attorneys in the case. I also viewed
the tapes of the planning commission meeting.
COMMISSIONER FIALA: I did too.
COMMISSIONER HENNING: Mr. Chairman, I have all my
correspondence in this file on the boat dock petitions and I met
with representatives on both sides of the issue, including Lisa
Barnett.
CHAIRMAN CARTER: Likewise, I have met with the
attorneys. I have met with the petitioners. I have met with the
neighbors. I have been at the site, of both sites, and I have all
the correspondence, e-mails, phone messages, any letters are in
a file for anyone to review.
COMMISSIONER MAC'KIE: May I ask this one question of
our attorney?
MR. WEIGEL: Sure.
COMMISSIONER MAC'KIE: Because I -- I heard Mr. Coletta
saying he didn't think -- he didn't go to the site because he didn't
Page 36
February 13, 2001
think that was appropriate. I don't want to do something I
shouldn't be doing. Am I -- on a matter like this .- as Ion.~ as I
disclose that I have been there, then I'm available for
cross-examination if attorneys want to ask me what I saw, but
I'm allowed to go, aren't I?
MR. WEIGEL: That's a very good question. And I think
disclosure is obviously very important.
COMMISSIONER MAC'KIE: If we shouldn't go in the future,
tell us.
MR. WEIGEL: I cannot tell you that you cannot go to a site
like that. Just as long as the disclosure is made of your -- call it
outside office activities in that regard. Thank you.
COMMISSIONER COLETTA: Forgive me, Commissioner
Mac'Kie. I didn't mean to say that you did something short. I
was literally taken with the directions we're here about --
COMMISSIONER MAC'KIE: I'm just trying to learn this.
COMMISSIONER FIALA: Yeah, me too. Because actually
I've been to all the different sites that we're going to be
.d. iscussing today and I wouldn't want to be doing anything out of
hne.
MR. WEIGEL: That's fine. ,Ve..ry. good. Good question.
CHAIRMAN. CARTER: I don t th,nk any of us are out of line. I
went to those s,tes before I even kne..w that we were going to be
in an appellate role. So I don't think ,t hurts to be there to see
what you need to see.
COMMISSIONER MAC'KIE: No.
CHAIRMAN CARTER: Mr. Pires.
M MR. PIRES: Mr. C.h. airman, members of the Board, thank you.
y name is Anthony P,res with the law firm of Wood~,=ra r~;r=e
Lombardo. And th,s ~s a Pet,tion A-2000-3. I am representing
the petitioners in this cause.
And I believe, .w..i. th the Chair's indulgence, if the opportunity
on behalf of the pet,t,oners .- because this one is very -. bnfh ~;
them are fact intensive. But a number of facts in 3~1-~;,~,~'~ "'
reserve three of my time for rebuttal, if possible,
parties have an opportunity to speak.
CHAIRMAN CARTER: Duly noted.
MR. PIRES: Thank you. And I have a few procedural items
I'd like to make part of the record that -- which we have concern.
I heard the advice provided by Mr. Weigel to the Board of County
Page 37
February 13, 2001
Commissioners on this issue, and I have a couple of concerns.
One, I believe it's unprecedented in Collier County history
that at an advertised public hearing no member of the public
other than myself can speak on this issue.
A number of interested people in the community have signed
up for this. They have the sign-up slips. I'd like this all to be
made part of the record.
I cannot honestly ever recall when, in an advertised public
hearing, the public was silenced and not allowed to provide their
comments to the Board.
Additionally, Section 1.6.6 of the Land Development Code is
titled Appeal to the Board of Zoning Appeals or Building Board of
Adjustments and Appeals.
I know your county attorney disagrees with my
interpretation of that section. But one aspect of it says that the
Board of Zoning Appeals shall not be -- excuse me -- the Board of
Zoning Appeals shall consider the action and public testimony in
light of the growth management plan, the future land use map,
the code or the official zoning atlas.
When I think it says public testimony, I'm not asking for any
new matters to be made part of the record. I'm always very
careful with regard to that, but I think the public has a right to
address the Board, their elected representatives, on this issue.
Also I note with great curiosity that in the agenda it's titled
as quasi judicial, so anybody wishing to speak needs to be sworn
in. We're not being sworn in, obviously. And also, the middle
part of the agenda says, if you want to sign up for this, don't do it
because you won't be able to speak. It says, all persons wishing
to speak on any agenda item must register prior to speaking.
With the -- once again, I believe it's unprecedented. The
appeal you all heard in November, I believe the county attorney's
office will tell you that was an appeal from an interpretation, so
that is different.
We're following the same procedural section. And I think
the rules have changed. It's an ad hoc policy, arbitrary and
capricious. So we object to that particular format.
COMMISSIONER MAC'KIE: May I ask a question?
MR. PIRES: Is this against my --
CHAIRMAN CARTER: No, it's not against your time, but --
COMMISSIONER MAC'KIE: It's a question for you, David or
Page 38
February 13, 2001
Marjorie.
CHAIRMAN CARTER: Marjorie has a comment. Counsel?
MS. STUDENT: Yes. For the record, Marjorie Student,
Assistant County Attorney. And we are aware of Mr. Pires'
arguments. However, also in our code, Mr. Pires represents an
aggrieved or adversely affected party. They are defined in our
code. And they may have been public at the planning
commission hearing, but now they are aggrieved or adversely
affected parties. And I would offer, for the record, that that is
distinguishable from the reference to the public that Mr. Pires
refers to in the land code.
Also, the provision of the land code that Mr. Pires refers to
has to do and originally had to do with administrative hearings or
-- excuse me -- administrative decisions made by Mr. Mulhere.
There is no opportunity at that point for public participation
while Mr. Mulhere makes his determination as to what the LDC
means. So that is a different type of hearing than this.
And I think when you make the -- the planning commission
section on boat dock extensions refers to this, you have to look
at the functionality of the administrative type of appeal as
opposed to a planning commission appeal.
And at the planning commission, they are the finder of fact.
That is their function and that is the function of being given or
offering testimony for their consideration and their
determination.
And also, we have a concern about due process and due
process as it relates to, in this case, the appellees or the
petitioners. So those are our concerns and our reasons for our
position.
COMMISSIONER MAC'KIE.' My question is for one of you
two; and that is -- again, I'm just learning this and the last thing I
want to do is get in the middle of a technical legal matter and
mess it up. But I've got to ask questions.
If either side wanted to have members of the public -- have
live testimony as opposed to testimony of the record, isn't that
available to them?
In other words, if somebody spoke at planning commission
and Tony or Rich or anybody wants to say, here is this person
who testified at planning commission to come stand up here and
tell you what they told the planning commission, is that
Page 39
February 13, 2001
permissible or are we only on the written record?
MR. WEIGEL: Well, the fact is, is that we're not looking for
additional testimony before you today.
COMMISSIONER MAC'KIE: I understand that.
MR. WEIGEL: And the aggrieved parties have their
advocates, their counsel here to advocate their position to you
and detail to you any elements of the record which they think
that the planning commission inappropriately considered in its
decision that it made.
COMMISSIONER MAC'KIE: But if Mr. Yovanovich, for
example, wanted to put Rocky Scofield on as a -- to testify, and
he testified -- he wants to testify to the same facts that he
testified at the planning commission, just asking -- MR. WEIGEL: Right.
COMMISSIONER MAC'KIE: -- can we hear that or do we have
to look at the written record only?
MR. WEIGEL: I believe you should look at the record that's
prepared below.
COMMISSIONER MAC'KIE: Which is only the written.
MR. WEIGEL: Yeah.
COMMISSIONER MAC'KIE: Okay. I am just trying to learn.
MR. WEIGEL: And that's what the appellate court would do
as we parallel what a true appellate court would do also.
CHAIRMAN CARTER: You may proceed.
MR. PIRES: Thank you. Additionally, as to the record, I'll
bring up the issue, I filed with the record on appeal the agenda
packet and the videotape of these proceedings, and I'd like that
to be made part of the record. I believe it is part of the record.
And I have additional copies to be made part of the record.
But I'd just also like to make part of the record the
transcript of the Goodland appeal from 11-28-2000 and provide
that, which indicates the procedure that was utilized there,
which is not being utilized here.
MR. WEIGEL: And I will comment to the Board as their
counsel that this is an inclusion into this record before you which
is not something that was before the planning commission
previously. And this is the very kind of thing that I'm instructing
you about and you can see it's starting to occur.
MR. PIRES: The only additional item is the Goodland
transcript. The tapes were filed with the appeal.
Page 40
February 13, 2001
COMMISSIONER MAC'KIE: Right. The Goodland transcript
we cannot consider because it was not before the planning
commission.
MR. WEIGEL: That's what I told you.
COMMISSIONER MAC'KIE.' That's who we're listening to.
MR. PIRES: For clarification, the --
CHAIRMAN CARTER: I would suggest you proceed with your
argument.
MR. PIRES: Thank you. If I may, Mr. Chairman, one
additional item -- in the staff report there is an item there that is
not in evidence.
The staff report at page 3 states that the staff considers the
reference to the vessel does not require that a specific vessel be
identified and that the intent of the LDC is to consider the
approximate draft of a typical privately-owned pleasure craft.
That is not in the record. That language about typical
privately-owned pleasure craft is not in the record, to my
understanding. It's a staff analysis, but I'd like that to be struck.
With regards to this particular case, I'd also like to make
sure that -- because the staff report to this item also said, it is on
the evidence presented at the later hearing, that is November
2nd, that the decision of the Board should be made.
But at four places in the transcript and in your agenda
packet they're referred to as pages 338, 346, 389, 406, all of the
October 5th proceedings, documents, transcripts were made part
of the November 2nd hearing. So I believe that needs to be made
part of this record and can be considered by this Board, contrary
to the staff report.
And I hope you all had a chance to review the planning
commission tapes. It's nice to be able to have that. We preserve
all and reserve all argument.
I think what -- in this particular instance that what we have,
the various criteria which the planning commission is to utilize
and you're to utilize in your review of their decision, in this
particular regard, the criteria that are addressed in the ordinance
state in Section 2.6.21.3, one of the criteria to be utilized is
whether or not the water depth where the proposed dock facility
is to be located is sufficient to allow for safe mooring of the
vessel; thereby necessitating the extension request.
And I believe that that has to be an objective analysis with
Page 41
February 13, 2001
objective data and no speculation of thought process,
hypothecating or just guessing as to what vessel length would be
involved or vessel draft would be involved, so as to decide
whether or not the water depth is sufficient to allow for safe
mooring of the vessel; thereby necessitating the extension
request.
We believe a fundamental flaw in this application, a
fundamental flaw in the proceedings below, there is no boat. Not
a boat. Nothing at all. The application stated a 30 foot vessel.
During the course of the proceedings the petitioner at one point
said 26 feet. At the last hearing he said, we're back to 30 feet.
But there is no boat. And he testified to that.
At page 42 of the transcript in this particular case,
Commissioner Abernathy was raising that question. And
Commissioner Abernathy: I would like to ask Rocky a couple -- is
there a boat. Is there a boat? Is there a particular boat owned
by this owner who is going to build a house on this lot at this
time?
Mr. Scofield: No, sir.
Commissioner Abernathy: He doesn't own a boat?
Mr. Scofield: No, sir.
Again, Commissioner Abernathy: But there is no current
boat in existence?
Mr. Scofield: No, sir.
And this is the proverbial tail wagging the dog.
Mr. Scofield: I do this because they want to get the dock
built first. Then they can decide what kind of boat they can have
to fit the dock.
As I read the ordinance, I think it's the other way around,
that the dock extension is required in order to achieve a water
depth sufficient to allow for safe mooring of the vessel; thereby
necessitating the extension request.
So the threshold question and the threshold fact in this
particular instance, in our opinion, has not been achieved; and
for that basis, the petition never should have been processed and
should have been summarily denied by the planning commission.
There is no idea as to what water depth is needed to provide
for safe mooring of a vessel that doesn't exist; therefore, there is
nothing necessitating -- or associated with depth necessitating
the request. They cannot provide the answer to the query as to --
Page 42
February 13, 2001
and they cannot honestly answer the question number two in the
application.
If this Board, like the planning commission, decides, you
don't have to have a boat, I have a black Magic Marker in my
briefcase and I will go to that Land Development Code and strike
that Section 2.6.21.3 out of that code for you. That in essence
what you are doing is amending on the fly that particular
ordinance. That's what the planning commission did in this case.
As I've stated to you, a range of vessels wasn't even
identified. A range of boats wasn't even identified or testified to
by the petitioner. Planning Commissioner Rautio was making
inquiries with regard to range of vessels, but nothing was
provided by Mr. Scofield, even though he had plenty of
opportunity to provide that.
And once again, with Commissioner Abernathy, part of his
concern is -- and he did ultimately vote against it. In page 92 of
the transcript, as he articulated in this case: Well, here we don't
have a boat. So my logic tells me that or my concept of logic
tells me that once somebody is prepared to build a house and
prepares to buy a boat, they can come in here under oath and
say that their both simply will not fit on a dock perhaps
configured for a parallel.
Once a person can come in here and say all of that, Here is
my boat. It won't work. Then we're talking about a boat dock
extension. That is, once again, I think a fundamental flaw in the
consideration by the planning commission and a sufficient basis
for this Board, with its authority, to reverse the decision of the
planning commission, in particular in this particular case.
The planning commission speculated and you would be
speculating and the staff has speculated as to what depths
would be drawn by a vessel in this particular instance.
As to the extension request, there was some confusion in
the record below as to where it was being measured from. Mr.
Scofield kept talking about the old rules. Well, there aren't any
old rules anymore. We're going by the new rules.
The application was also interesting for not only not having
a boat, but not really giving a proper relationship of this parcel to
the surrounding parcels. Fortunately, your staff had prepared
documents and exhibits which depicted its relationship.
And part of the relationship there is that there is a platted
Page 43
February 13, 2001
lot line out in the water. There is a seawall line at this location.
The request is an extension from 61 feet initially from this
seawall line measured outward.
Testimony by the record, by Mr. Scofield, based upon a
survey by Mr. Trego, indicates the dock dimensions from the
seawall line to the platted lot line is 21 feet; thereby we're
talking about a 40 foot extension.
As you can see from this sketch -- once again, it's not to
scale, but the staff testified and utilized this in both proceedings
-- adjacent docks in the area extend out 20 feet from the platted
lot line, 20 feet from the platted lot line, 20 feet from the platted
lot line.
They are all varying distances from the seawall line, but the
key issue is distance from the platted lot line, which is 20 feet.
This request goes, it would go out 41 feet. And as granted it
goes out 32 feet because it was granted at the 52 foot length.
So we're talking about substantially beyond the distances of
the established lines. So even if, assuming for the sake of
discussion, you have the ability to even consider the request,
which we think was not there, we think an established line to
show the ability to utilize that waterway is 20 feet out.
And that also is substantiated by a survey prepared by the
applicant that was utilized at the November 12th hearing that
has -- it's not to scale, but it does show that at a distance of 40
feet out from the seawall, that there -- a depth of 4.1 feet can be
achieved.
And if you go out from the -- you're talking about substantial
depths can be achieved. Assuming you need that. Once again,
we don't know. We're speculating.
So regardless, the distance of 40 feet out from the seawall
would more than achieve the necessary depths to provide safe
mooring of a vessel if you assume the vessel depth.
Testimony as to drafts was by the petitioners or the
appellants in this particular case, Susan Burkhardt, who has a 23
foot and a half deep V maximum hull boat with a 3 foot draft.
She pulled up to this property. And she has photographs
that she utilized during the course of these proceedings that --
where she measured the water depth. And at the lowest tide she
had plenty of water depth at the area where the subject property
is located. And --
Page 44
February 13, 2001
COMMISSIONER MAC'KIE: Were those photographs
presented to the planning commission?
MR. PIRES: Yes, they were. They were made part of the
planning commission. And part of her going up to the seawall,
she got within a few feet of the seawall in the area where the
docks are and measured the depths. It's hard to see, I know, on
that. I don't know how to enlarge it, frankly.
COMMISSIONER HENNING: What kind of instrument is that?
MR. PIRES: That's a pole with the various increments on it
that she was using and pressing it down to the bottom. And I
think it also supports the depths as indicated by the petitioner in
the survey. That 40 feet out you're at 4.1 feet, so you can
achieve the necessary safe depths for her particular boat at that
particular location.
CHAIRMAN CARTER: As a point of reference, is this at low
tide, medium tide, high tide?
MR. PIRES: Lowest tide.
CHAIRMAN CARTER: Lowest tide.
MR. PIRES: I believe she testified she went out at the
lowest tide. And her boat has a 3 foot draft with the outdrive
down at that particular point.
COMMISSIONER HENNING: Is this a moon tide?
MR. PIRES: I don't know. There wasn't -- in testimony she
mentioned lowest tide, I believe was her testimony from the
record.
She also indicated that she went to the dock master at
Wiggins Pass. And assuming a boat in the 26 to 30 foot range,
the normal draft is 2 and a half to 3 feet, so that there is plenty of
depth of the water.
Once again, the survey that was previously indicated shows
that there is a 4 foot water depth achieved, 4 foot depth, 4.1 at
40 feet out from the seawall.
If you go out 61 feet from the seawall, you're at 5 and a half
feet. And this is taken, I believe it's mean low tide. I believe,
mean low water, I believe it was taken. I could be corrected on
that.
But once again, assuming for the sake of discussion that the
Board can consider the application without a boat or vessel
being involved, there is more than enough depth to support the
vessel.
Page 45
February 13, 2001
One additional item was with regards to the -- this particular
extension request was what impact it would have on navigation.
We had Ed Maguire, who has lived there a long time. Ed has
been there 25 years.
He said, hey, when you motor on that north end of that
canal, you hug the line established by the docks. And to put a
boat out this particular distance will create a navigational issue,
so we do have a navigational issue.
We had the parties go out there and make a -- using a ski
rope to show where 61 feet would be, a 60 foot tow line from the
seawall. And this is an existing dock and this is how much
further it would be beyond that line of docks in that particular
area.
COMMISSIONER MAG'KIE: Tony, the back of the boat or the
front of the boat?
MR. PIRES: The back of the boat right there.
COMMISSIONER MAG'KIE: I see.
MR. PIRES: Where the person is standing. So you have --
this boat is actually outside of a dock, so you have that distance.
We also have this photograph that was taken, which has an
existing line of docks and this is 61 feet.
This one. There you go. This is one of the neighboring
docks because the property involved is right here, the subject
property. So we're looking to the west, I believe, and there is 60
feet. So you see how much further it goes beyond this.
Now, there was testimony about, oh, well, don't boats moor
outside the existing docks? Well, they do it illegally. Then you
need to be brought before code enforcement.
I think even one of the planning commissioner members
stated that, gee, this particular gentleman will be pleased that
this item came up because now code enforcement may realize
he's mooring his boat outside the established dock line so that
he's in violation of the particular code.
COMMISSIONER HENNING: I need clarification on this. Is it
in the canal or is it in the bay?
MR. PIRES: It's in that lagoon.
COMMISSIONER HENNING: Where is the property that we're
talking about, according to this picture?
MR. PIRES: The property that we're talking about --
COMMISSIONER MAC'KIE: It's right up from this dock~ isn't
Page 46
February 13, 2001
it, Tony?
MR. PIRES: No. It's right here.
COMMISSIONER MAC'KIE: Your finger is not showing it.
Tony, your finger is not showing it. There, that's the property.
COMMISSIONER HENNING: Okay.
MR. PIRES: The property is right there.
COMMISSIONER HENNING: So the picture is looking into the
canal?
MR. PIRES: No. We're down -- yeah.
COMMISSIONER MAC'KIE: Looking from the land out.
MR. PIRES: Looking from another boat in the waterway.
COMMISSIONER HENNING: Into the canal.
MR. PIRES: Yeah. And once again, here is an established
line of docks and here is how much further it goes beyond.
Because that's 21 or so feet beyond the established line of
docks.
As I indicated, you have various individuals with local
knowledge, competent and substantial evidence, who testified
as to what effect it would have on -- Ed Maguire indicated that.
As to dredging, you know, it was said they couldn't dredge.
There was testimony by Rocky Scofield. B.J. Boyer, one of the
neighbors, testified that she spoke with Mark Miller at DEP,
that's page 387 of the transcript.
And Mark Miller of DEP said -- he specifically told me that he
does not or did not oppose dredging. He discourages it, but he
did not oppose it. So that was one of the criteria.
One of the other issues was, we have to be concerned about
trimming mangroves in this particular case. And in the second
hearing, the testimony was that there was the ability to trim the
mangroves and bring the boat in a little bit closer.
Now, in this particular case, the dock configuration itself
lends itself to pushing it out further in the waterway, and we
think unnecessarily.
The dock configuration, as filed with the applicant, is a
misconfiguration. And I'll try to -- there we go.
Now, this is the initial application, which it goes out a 60
foot distance again from the seawall. And again, it does not
show its relationship to the adjoining docks or the fact that it's a
funky seawall kind of line in that area.
You have this dimension here, which is a substantial
Page 47
February 13, 2001
distance that could be pushed in or reduced. You have this
substantial dimension here that's indicated as 8 feet that, again,
could be reduced.
By the time you start doing all that, assuming again for sake
of discussion that it is appropriate to even consider that, you're
out at a depth of 4 feet where you're out 40 feet out from the
seawall line, which is 20 feet out from the platted property line,
which is consistent with the other docks in the area.
Now, there was testimony by Susan Burkhardt, even though
Rocky Scofield said he doesn't own a boat, she testified as to a
boat that she understood the petitioner owned. And it happens --
COMMISSIONER MAC'KIE: Who is she, Susan Burkhardt?
MR. PIRES: Susan Burkhardt. She was one of the residents.
She testified. And she's the one that did the depths and the
measurements.
COMMISSIONER MAC'KIE: Oh, yes. Thank you.
MR. PIRES: And part of her testimony was as to what she
found out about a vessel of the type owed by the petitioner. That
once again, he says he didn't own it, but this is a catamaran --
and this was testified to at the hearing -- and that draws a
whopping 12 inches of water.
So once again, assuming for the sake of discussion that this
particular vessel which is 26 and a half feet overall length, you
go back to the criteria outlined in 2.6.21.3, whether.or not the
water depth is sufficient to allow for safe mooring of the vessel;
thereby necessitating --
COMMISSIONER HENNING: Mr. Pires.
MR. PIRES: Yes, sir.
COMMISSIONER HENNING: You said it has a 12 inch draw?
MR. PIRES: Yes, sir.
COMMISSIONER HENNING: Is that idle, sitting?
MR. PIRES: The testimony just indicated that based upon
the specifications it had 12 inch draft. There was no other
testimony to that effect.
COMMISSIONER HENNING: Was this piece of paper or this --
the dimensions of the boat and so and so forth in the draft, is
that part of the record? MR. PIRES: Yes.
COMMISSIONER HENNING: Okay. Because 12 inches is
something -- I have a 20 foot boat, a catamaran, and it draws
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February 13, 2001
over 12 inches. So I think that's a running 12 inches versus an
idle 12 inches.
MR. PIRES: Once again, that would be something outside of
the scope of the record. All that was in the record was the 12
inches.
COMMISSIONER HENNING: Well, if this is part of the record,
then I think that the facts of that particular boat should be on
that.
MR. PIRES: I can pass this around to the Board, because
this is part of the record, if they wish to see it. Mr. Weigel.
COMMISSIONER HENNING: I'd like to see it.
CHAIRMAN CARTER: Where are you, Mr. Pires?
MR. PIRES: About ready to wrap up, Mr. Chairman.
CHAIRMAN CARTER: Thank you.
MR. PIRES: If I may, while Commissioner Henning is looking
at that, I'll be brief as far as a real quick wrap-up. Once again,
navigation issues, we've talked about this particular issue.
This dock facility is not a dock facility that minimally
impacts the navigability of the waterway, which is one of the
criteria, when you look at the language in Section 2.6.21 of the
code dealing with dock facilities, that's intended for the safe
mooring of vessels and minimally impact the navigability of the
waterway. In fact there is a much, much greater effect.
It's not needed. The next-door neighbor, Mr. Shatzel
(phonetic), testified, the dock next door, he has a dock that goes
out 20 feet from the lot line. And he has had that for a number of
years and he can safely moor his vessel.
This petition is driven by want, not by necessity. The
process is reversed. As Rocky Scofield testified: I do this -- that
is, having no boat -- because they want to get the dock built first
and then they can decide what kind of boat they can have to fit
the dock.
There is no competent substantial evidence presented at
the planning commission hearing which warranted the planning
commission decision to approve. No boat, therefore, no depth of
vessel; therefore, an inability to determine safe mooring. And we
ask you to reverse the decision of the planning commission on
that basis.
If this Board feels you don't need to have a boat, it will open
the flood gates and just everybody come on in and get a dock
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February 13, 2001
and then buy the boat to fit the dock.
The water depths are sufficient much closer in. The
orientation and location of the dock requested could be changed
to make shore parallel. There is an adverse effect on navigation.
It's not minimally impacting navigation.
And we request that any decision, if granted, would be
consistent with the established line of 20 feet out from the
platted property line. And I reserve the three minutes for
rebuttal. Thank you very kindly, Mr. Chairman, and members of
the Board.
CHAIRMAN CARTER: Thank you.
COMMISSIONER MAC'KIE: Could I ask staff a question?
CHAIRMAN CARTER: Sure.
COMMISSIONER MAC'KIE: I guess it's Mr. Nino who is --
CHAIRMAN CARTER: Bernie will have to let you know if he
can answer it.
COMMISSIONER MAC'KIE: Again, David, the question I want
to ask is --jeez, that scared me and now I forgot. Now, the
question I wanted to ask is whether or not there is -- no, never
mind. I'm not going to ask it.
COMMISSIONER HENNING: I think--
CHAIRMAN CARTER: Excuse me. Commissioner, I did not
mean to frighten you. We just want to stay within the
parameters. That's all. Commissioner Henning.
COMMISSIONER HENNING: Well, I do have a question about
the boat and whether to be -- it's in the LDC, I'm assuming.
MR. WEIGEL: What is your question, Commissioner?.
COMMISSIONER HENNING: The question is, it refers to --
and it referred to in the testimony, and the parameters around
the boat dock petition is, it refers to the boat. So what does the
boat mean? Does it mean --
MR. WEIGEL: Fine. Hold that question. And I'm going to
hold the answer for a few minutes anyway. And let's let the
appellee present their response to the argument that has been
made.
And again, we're not looking for staff to be involved here.
The county attorney's office, as your advisers -- and this is where
there is a distinction from the appellate court. The judges are
their own attorneys and you are not your own attorneys here.
So we will reserve the discrete opportunity to comment to
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February 13, 2001
you at the end. And if you have specific questions such as that
one at the end, we will respond to the extent that we think we
can.
COMMISSIONER HENNING: Thank you.
MR. YOVANOVICH: Mr. Chairman, is it appropriate for me to
start?
CHAIRMAN CARTER: Yes, sir.
MR. YOVANOVICH: For the record, Rich Yovanovich
representing Olga landemarino. And I want to point that out,
that what you have just heard from Mr. Pires, frankly, is his
rendition of the testimony that occurred at the planning
commission and he is asking you to reweigh that evidence. He is
pointing to the record, where there may be contradictory
evidence. And that's not your role.
Your role is to determine whether or not the planning
commission had evidence in front of it to support its decision.
They are the trier of fact. They are the ones who view the
credibility of the person testifying. And they are the ones who
made the determination that the evidence that they heard,
although contradictory, supports the petition.
So he's asking you to do something which you're not
permitted to do, which is reweigh the evidence. And I believe
your attorney has advised you of that. And I agree with your
attorney's interpretation of what we are here to decide today and
how the process is to go forward.
I also want to point out that the boat that Mr. Pires just
showed you is not owned by Olga landemarino. It is owned by
her son.
MR. PIRES: Mr. Chairman, I would like to object for the
record. Mr. Yovanovich is now testifying and introducing items
not in the record, something that he wished me not to do and I
agreed that it is inappropriate.
MR. YOVANOVICH: I will say that he has introduced a boat
that he said he believed is owned by Mr. -- the petitioner, and
that is not factually correct.
COMMISSIONER MAC'KIE: But I --
CHAIRMAN CARTER: But that is not in the testimony
anywhere in front of us. I would say your objection is overruled.
MR. WEIGEL: And I would suggest that Mr. Pires save
remarks for rebuttal and that way we'll have a continuous
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February 13, 2001
opportunity to present the case here.
MR. PIRES: I'm concerned that my objections not be
waived. That's my only concern, Mr. Chairman. If Mr.
Yovanovich says something and it goes on for 20 minutes,
somebody is going to say I waived by not jumping up. So I
apologize for jumping up, but I think I need to preserve --
CHAIRMAN CARTER: Okay. We'll let you address that under
your rebuttal.
MR. PIRES: Thank you.
MR. YOVANOVICH: I would also agree with Mr. Pires that
the October 5th record is part of the November 2nd testimony.
And I -- and that's important because this was a hearing that
occurred at two separate meetings, the October 5th, 2000
meeting, and based upon a technicality on whether or not the
property should have been posted with notice in addition to
mailed-out notice, the appellants were given an opportunity to
have another hearing in front of the planning commission on
November 2nd.
So what this Board needs to understand is that there were
many hours of testimony and on both occasions the planning
commission found in favor of granting the petition.
I also want to point out that everything Mr. Pires showed
you references a 61 foot dock. What was approved was a 54 foot
dock and that's what you have in front of you. And I hope you
can see that. If you can't, we can expand it.
But it's a 54 foot dock total. And that includes, the vessel
will fit within this area. It will not extend beyond that. So it was
a 54 foot dock, not a 61 foot dock that he has been showing you
the exhibits for.
And all of his exhibits showed a 61 foot boat, so he's not
showing you what was approved. He is showing you what was
applied for. And there were changes based upon the evidence
that was presented to the planning commission.
Also, you will see where the mangrove drip line is. We have
moved the dock in and it will trim, so you will see that the exhibit
he has shown you is not an accurate representation of what was
approved by the planning commission.
I do want to point out that your staff is an expert in this
area. They reviewed the petition. They interpret and they apply
the ordinance.
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February 13, 2001
I don't know if it's appropriate for me, but I will just point
this out and Mr. Weigel can do that, is that the application of this
ordinance has never been interpreted to mean you must buy the
vessel first and hope you get a boat dock extension. The
application of the ordinance has been --
COMMISSIONER MAC'KIE: Let me just note that Mr. Pires is
making another objection and he'll advise us about it during his
rebuttal.
MR. YOVANOVICH: Well, I believe I'm allowed to argue what
I believe the law means.
COMMISSIONER MAC'KIE: I'm just noting his objection for
the record.
MR. YOVANOVICH: And I'm doing that.
The law means that you must identify the vessel and give
enough detail about the vessel to determine whether or not the
boat dock extension is the minimum necessary to get to safe
water.
And I will show you in the record where you have -- not only
know the length of the vessel, but you know the draft of the
vessel. So the planning commission had that information in front
of it when it made its decision to approve this boat dock
extension.
Mr. Scofield also testified at this hearing, and he had been
recognized and was recognized as an expert in boat dock
permitting. Mr. Pires raised in his appeal -- he did not bring that
point forward here at this time -- he did not raise during his
arguments, but did raise during part of his written documents
that Mr. Pires (sic) is not an expert.
And I would like to point to the record that Mr. Pires is in
fact representing one of Mr. -- I'm sorry. Mr. Scofield is
representing one of Mr. Pires' partners, so at least on the record
at the lower hearing he recognized him as a qualified expert in
what he's doing.
The application was prepared by Mr. Scofield and signed by
him. And you will see on, I believe it is page -- I'm sorry. Bear
with me for a second. I'll get to it in a minute. But on page 18 --
I'm sorry -- we do identify the vessel as 30 feet in length. That's
in the application and your staff knew that during the
application.
Now, what we were applying for was a vessel that we would
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February 13, 2001
like to go acquire. That's why -- that's the way the ordinance has
been interpreted in the past.
You find your parameters of what you can then go acquire
because it makes absolutely no sense to buy a boat and hope
you get it and cross your fingers. It's a waste of time, effort and
money; most importantly money if you can't put the vessel there.
We would agree with your staff or your attorney's
interpretation of what substantial competent evidence means.
And I will show you exactly in the record where all the necessary
evidence was.
d°n'tI do want to point out that I'm an .advocate. I'm a la..wyer. I
provide evidence. I argue the ev,dence. So everyth,ng that
Mr. Pires said and in the record at the planning commission is
just that, argument.
It is not evidence and is not to be considered when you
review the record. You must look at what Mr. Scofield said, what
your staff said and what the members of the public said. Those --
that is the evidence that was presented.
You were presented a survey -- or the planning commission
was presented a survey of water depths. And Mr. Pires points
out correctly, at approximately 40 feet you get to 4 feet of water.
What he doesn't tell you is that the lift is 13 feet wide.
COMMISSIONER MAC'KIE: What's the lift?
MR. YOVANOVICH.' The lift is for the boat, to lift the boat
out of the water. So when you get to 40 feet, if you go parallel to
the dock, add 13 feet, you get to the 53, 54 foot range for the
safe mooring of the vessel. You must have 18 inches of water for
the lift in addition to the draft of the boat.
And that becomes important because not only did Mr.
Scofield testify as to the draft of the boat. At the October 5th
hearing he said the boat will draft 2 and a half to 3 feet of water.
Add another 18 inches, you get to 4, 4 and a half feet of water
depth for the boat and the lift.
And that's important because if you park parallel, the back
of the boat is going to be at the deepest part. If you park it
parallel, you need 53, 54 feet. If you park it perpendicular, you
need 53, 54 feet to get to the depth of the water.
So our application was for a perpendicular boat dock, not a
parallel boat dock. But under either scenario you still need the
same water depth in order for the boat and the lift to properly
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February t3, 2001
operate.
If you don't believe Rocky, you can believe Ms. Burkhardt,
their own witness, who called the dock -- or called to find out
how deep or how much would the boat draft. And she testified
that it's 2 and a half to 3 feet. So you have consistent testimony
that the boat will draft 2 and a half to 3 feet.
So the planning commission knew at its hearing the size of
the boat and the depth and the amount of draft that the boat has.
And that's all you have to have, is, does the planning
commission have that information in front of it to make the
decision? And they certainly did have that information,
Regarding navigation, you have contradictory evidence.
You've got Mr. Maguire who said he can't navigate it. Well, the
fact of the matter is, in the record again, was the survey that
talks about the depth of the water.
There was testimony from Mr. Scofield that from the end of
the dock -- as I point to that, remember the boat does not go
beyond that. From the end of the dock to where the water starts
to rise for a sandbar that's out there, you have 80 feet; 80 feet to
maneuver a boat. That is more than enough room for safe
navigation.
And your regulations provide that in a 100 foot canal, you
can go out 20 feet on each side, so you're down to 60 feet. So
your own regulations, as a matter of right, say 60 feet is enough.
We have 80 feet. So navigation, as Mr. Scofield testified to and
is supported by the survey, is not an issue.
Regarding view, you live on the water, you should expect to
see boats. You can't say just because someone puts a boat out
there, I don't want to see it. That argument is -- frankly, we think
is a meritless argument. It doesn't really warrant much
discussion.
But Mr. Pires took you through showing you some pictures
on how the boats line up. The view is not impacted by our boat
being out there. These property lots are all oriented out to the
lagoon, as Mr. Pires referred to it.
The majority of the vessel -- the majority of the property
owners, as his own pictures show you, look straight out to the
lagoon. Will someone see the vessel and the dock? Yes. But
that's not the standard. You don't get a totally unobstructed
view.
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February 13, 2001
Your staff supported this position based upon the
information provided to you not only in the application, but also
at the October 5th hearing. They did not change their position
when they came back to the November 2nd hearing. They knew
it was a 30 foot boat, 26 to 30 foot boat.
And it depends on whether you want to count the engines or
not and that's where the difference comes from in measuring the
length of the boat. Your staff supported that decision.
Your planning commission who heard it, heard all the
evidence and, you know, you've seen four transcripts and the
videos. So you've seen what they listened to and had an
opportunity to read it all. There is ample evidence to support
their decision.
Again, I want to emphasize that your code does not require
you to own a boat in order to apply. It requires you to say what
the parameters of the boat will be and then you can go ahead
and make the application. And you need to minimize your
impact.
The evidence is clear that you've got to get to at least 4 feet
of water, 4 to 4 and a half feet of water. That's corroborated by
the testimony of Ms. Burkhardt, that the boat will draft 2 and a
half to 3 feet.
Mr. Scofield testified that you need 18 inches for the lift.
That gets you to 4, 4 and a half feet. The survey shows you how
far out you've got to go to get to that point. And Mr. Scofield
even testified that the neighbor can't get his boat on the lift
during low tide.
So measuring from the neighbor's dock is not the correct
standard. Just because the neighbor's dock doesn't work
doesn't mean we're prohibited from asking for a dock that does
work.
The code allows you to request an extension when you can
show that the vessel can't be safely operated and moored. And
the evidence supports all of that.
What you need to remember is, the property owner, the
petitioner has valuable riparian rights as well. When you live on
the water, you have the right to use that water. You cannot
unfairly restrict the use of that right.
We are not, through our application, doing anything to harm
the area. There is no impact on the navigation. It will be safe.
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February 13, 2001
There is no impact on the view of the property owners.
Their view will be -- yes, they'll see a boat, but does it rise to
the level that we're destroying their view? No. We have the right
under your ordinance to go out deep enough to get the safe
water.
The record clearly supports the planning commission
decision. You may reach a different conclusion. I don't know. It
doesn't matter. The standard is, is there evidence in the record
to support the planning commission?
I would say that the evidence is in the record. Has Mr. Pires
pointed out to you where someone has testified to something
different? Yes. Has he pointed out to you that what Mr. Scofield
said was inaccurate? He has not.
His own witness supports the draft of the vessel. He has
not contradicted the survey as far as water depths goes. He
says even his own testimony, his own measuring stick supports
that.
So what you have is, you have an agreement, a meeting of
the minds as to what the vessel will draft and what we need for
adequate water depth. But what he doesn't do and what he
doesn't tell you is that you need the 18 inches for the lift and the
lift is 13 feet wide. That's how you get to the depth of -- or you
get to the length and the depth to safely moor the vessel.
That is what the planning commission heard. That is what
the planning commission considered. And that is what the
planning commission approved, a 54 foot boat length, a boat
dock length, and a 34 foot extension.
Unless you have any specific questions of me, I am done
with my presentation. And I appreciate Mr. Pires not jumping up.
CHAIRMAN CARTER: Well, you'll have three minutes.
COMMISSIONER MAC'KIE: Mr. Weigel, I have a question.
You tell me if I can ask it and to whom I would direct it.
I understand what my standard of review is. And one of the
elements in my standard of review is if I find that the planning
commission's decision is contrary to the code, that's one of the
things I have jurisdiction over. The code, I assume, means the
Land Development Code.
MR. WEIGEL: Yes, that's right.
COMMISSIONER MAC'KIE: The particular element of the
code that I have a question about is whether or not -- I don't
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February 13, 2001
think I'm quoting the code -- but whether or not a vessel can be
safely moored or operated with a less of an extension.
And I am, frankly, confused about the facts between the two
exhibits that I saw. When Mr. Pires showed us one with 61 feet
and it had a wide deck. And then I saw one here that is 54 feet.
I need to understand factually if-- am I right that it's a code
requirement that the dock be as small as possible, while still
allowing safety?
Is that what the code says? And if so, I need testimony on --
I need to understand what exactly the size is. And I'm confused
between the two exhibits, to be frank about it.
MR. WEIGEL: Well, as we refer to the code here, I'll say that
the standard of review is, as we've stated here and you
recognize it, the question -- a mere concern as opposed to finding
a problem with it or an improper interpretation of the code at the
planning commission level is distinguishable.
We'll turn -- I know -- Tony, do you have the cites? I copied
down the cites that Tony was mentioning, for instance. Do you
need that?
MR. YOVANOVICH: While they are looking for it, factually
this exhibit is what was approved, the 54 feet. That's the -- that
was -- it was in fact scaled back from the 6t feet when the more
fine-tuned survey was done. So to meet that criteria of the
minimum depth necessary, that's what was approved.
COMMISSIONER MAC'KIE: So basically I have two factual
questions. And I appreciate knowing that this is the actual
approved one. And I really kind of understood that.
But my two factual questions, one is whether or not this 54
foot -- is this a deck in here? Does it need to be as wide as it is?
I don't know how to point to this.
MR. YOVANOVICH: The 13 foot lift, Commissioner?.
COMMISSIONER MAC'KIE: No. I'm talking about --
COMMISSIONER HENNING: The landing just before you get
to ''
COMMISSIONER MAC'KIE: Yeah. Where the pen is. Is that
a sun deck or is that something that is necessary for a boat? I'm
not asking you to testify to that because I think that would
probably be inappropriate. But that's a fact question I have, if
it's in the record.
And the other fact question I have is, I don't understand this
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February 13, 2001
business about the lift and 18 inches and -- or whatever it is.
Because but for that additional math, it sounds like it's not
necessary.
But if this -- and you understand, my authority is that if I find
that it doesn't comply with code, I can turn it down, even if I
don't like -- I mean, that's what they told us --
MR. YOVANOVICH: Commissioner, I understand that. The
question is the lift. In order to lift the boat out of the water,
you've got to have another 18 inches in addition to the draft of
the boat, so that gets you to the depth of 4 feet.
COMMISSIONER MAC'KIE:
under the boat to lift it up?
MR. YOVANOVICH.' Yes.
COMMISSIONER MAC'KIE:
MR. YOVANOVICH: Okay.
Something 18 inches deep goes
All right. That's what I needed.
So that gets you to the math
portion of the analysis to get to the water depth.
COMMISSIONER MAC'KIE: And then my other question,
David, is, am I right that one of the things I'm looking at here is
whether or not in my opinion of the facts it complies with the
code?
MR. WEIGEL.' Well, I think that's exactly right.
COMMISSIONER MAC'KIE: These are contradictory
standards.
MR. WEIGEL: One of the things -- and let's be very specific
as to your question. One of the things you consider is if the facts
are in accord with the law.
Now, the law that we're talking about here and the law that
Mr. Pires mentioned in his discussion was 2.6.21.3. Now, I won't
paraphrase what he said or what you could do with this.
COMMISSIONER MAC'KIE: Would you just read that?
MR. WEIGEL: It's fairly lengthy, but I think there are two
very important parts for you. One is 2.6.21.3. Well, no one
knows off the top of their head. What it is, is a dock facility
extension, boathouse establishment criteria.
And it discusses -- and I'm quoting: Additional length, slash,
protrusion beyond said respective distance as specified in
another section of the code for dock facilities. Now, it mentions
-- and then it has a bunch of subsections that come after that,
but it all follows under that 2.6.21.3.
And one of the things to consider of many is -- and this is
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February 13, 2001
where you were fine-tuning -- 2.6.21.3.3, whether or not the
proposed dock facility and moored vessels in combination may
have an adverse impact to navigation within an adjacent
navigable channel.
Now, another criteria, again, there are many --
COMMISSIONER MAC'KIE: But that's not the one I'm worried
about. I heard the 80 feet on that one. That one doesn't bother
me. Because we've said 60 feet is enough, so --
MR. WEIGEL: It might be of assistance, I'll just bring the
code in and you can do a quick scan. Ultimately --
COMMISSIONER MAC'KIE: Because I heard people talking
about a code section that says, it's as small as it can safely be
and still have safe --
MR. WEIGEL: I see that one here too, but I'll still bring this
up to you. It's 2.6.21.3.7, whether or not the proposed structure
is of minimal dimension to minimize the impact of the view of the
waterway by surrounding property owners.
COMMISSIONER MAC'KIE: But that has to do with the view,
not safe operation.
MR. WEIGEL: Okay. But this is why -- this is one of several
criteria -- and I'm going to come back in a second. The bottom
line of this element in the code says: If deemed necessary,
based upon review of the above criteria, of which there are about
ten, the planning commission may impose such conditions upon
the approval of an extension request it deems as necessary to
accomplish the purposes of this code and protect the safety and
welfare of the public.
Now, it is a given that the planning commission, having
made a determination, has in fact applied the code and including
all of the above criteria.
COMMISSIONER MAC'KIE: Oh.
MR. WEIGEL: Only a few of which I have mentioned to you.
That is a given. There is -- in the sense that that's the standard
that they're supposed to apply, and the arguments before you
today, both pro and con, are whether they applied those
standards or not.
CHAIRMAN CARTER: And they were not unanimous in their
decision.
COMMISSIONER MAC'KIE: And the question is not whether
they applied them correctly, in my opinion, it's whether they
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February 13, 2001
applied them or not.
MR. WEIGEL: Well, it is in fact obviously a good question,
whether they applied them or not. But you see from the law
itself that they looked to all this criteria and they have some -- I
don't want to say conflicting elements, but some are safety,
some are view, some are --
COMMISSIONER MAC'KIE: Are they conjunctive or are they
disjunctive?
MR. WEIGEL: I would say that they are -- well, I guess we
would say conjunctive if we want to use --
COMMISSIONER MAC'KIE: You have to have all of them?
MR. WEIGEL: Oh, no. I am just saying -- they are separate,
but they look at all of them and come up with a cumulative
decision.
COMMISSIONER MAC'KIE: Okay. That answered my
question.
MR. WEIGEL: And I'll still bring the code book up to you if
you want to scan it real quick.
COMMISSIONER MAC'KIE: No. I think you answered my
question. Because what I was afraid of, I was hearing was that if
there was one gotcha that wasn't met in that long list, that you
had to throw it out.
MR. WEIGEL: I don't see these provisions that way.
COMMISSIONER MAC'KIE: Okay.
COMMISSIONER FIALA: Could I ask a question also? In the
LDC code does it specify that you must have the boat or know
what the size of the boat is? It seems to be that both sides have
mentioned -- one side has said they know the size of the boat.
The other side says they know the size of the boat except
it's somewhere between 26 and 30, depending on the motor. But
then they didn't know what kind of a motor was going to be on
the boat.
So I was just wondering, is there something in the LDC code
that stipulates that you must be talking about a direct boat or
can you just guess?
MR. WEIGEL: A boat is referenced. I have seen nothing in
the code -- Marjorie, correct me if I misstate. I see nothing in the
code that talks about pre-ownership or post-ownership of the
application process.
COMMISSIONER MAC'KIE-- Can I -- because judges can
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February 13, 2001
discuss among themselves. It does refer to a boat. It just
doesn't say a boat owned by the applicant. They have to have a
boat in mind.
And, you know, I love legal technical arguments as much as
anybody. But I think that's just one of those. I mean, it says
there has to be a boat. It doesn't say the boat owned by the
applicant prior to the submission of the application.
CHAIRMAN CARTER: It just says vessel and let your mind
go wherever that wants --
COMMISSIONER HENNING: So you're saying you can't put a
car out there. You can put a vessel out there.
COMMISSIONER MAC'KIE: Maybe. I don't know. But you
don't have to own the boat before you apply, not in my humble
opinion.
COMMISSIONER FIALA: But actually you can't build the
dock in the first place before there is a house, which is what
they said through all of that testimony on the tapes, right?
COMMISSIONER MAC'KIE: Yep.
MS. STUDENT: I need to address that because that is an
issue that Mr. Pires raised. The code in Section 2.6.2 says the
construction of a house; in other words, that would be the
principal structure.
So the accessory structure, which would be the boat dock,
would have to be constructed simultaneously with the principal
structure of the house or after the principal structure of the
house. Merely applying for a boat dock extension is not a
building permit to construct, so that argument is, in our opinion,
disingenuous.
CHAIRMAN CARTER: Was there anywhere in the testimony
that I missed of reference to -- that all the other docks
exceeded? In other words, we have a 41 foot dock to the east.
And it seems, from what I understand, a number of those docks
exceed the 20 foot. Or was that ever anywhere in the testimony?
Although it's implied, as I see it, that the boat dock next door is
out 41 feet.
MR. YOVANOVICH: If I may, Commissioner Carter, for the
record. There was, as Mr. Pires pointed out, a change in the
code as to where you measure the 20 feet. It used to be you
measured from the property line. And those -- I believe those
boats were constructed under the old criteria of measuring from
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February 13, 2001
the property line.
There has been a change in the code to where you now
measure from the more restrictive of the property line, mean high
waterline or the seawall. And as Mr. Pires pointed out, the
seawall is more restrictive than the property line in this
particular case.
So that's why our request is from the -- you have to measure
it from the seawall and that's why we're asking for a request of a
total of--
CHAIRMAN CARTER: So that had a more lenient --
MR. YOVANOVICH: Yes.
CHAIRMAN CARTER: -- measurement?
COMMISSIONER MAC'KIE: It basically just means that if you
applied under the old code for 20 feet, the net effect of applying
under the new code is -- it would be about 10 feet? No?
Backwards?
MR. WEIGEL: So I think that's --
COMMISSIONER FIALA: Say that again.
CHAIRMAN CARTER: I don't mean to confuse the issue. But
it seems to me that if it's a more lenient permitting process to
the boat dock to the east and that's out 41 feet and that
operates -- or is sufficient for that boat dock.
And if it was part of the testimony, the reference to, we now
have a more restrictive one and we're asking for more of a longer
dock, and that raises questions in my mind.
COMMISSIONER MAC'KIE: Okay. Let me see -- and I'm sorry
because I'm only pointing to the screen here. I can come down
and point to the visualizer if I need to.
But the seawall, we can see where the seawall is on that
drawing. This application is measured from that point, so -- and
show the line, please, Rich, where they used to be measured
from.
MR. YOVANOVICH: This is the platted property line that I'm
pointing to.
COMMISSIONER MAC'KIE: So the old applications were
measured from that platted property line. So now under the new,
how many feet in is that, 24 feet?
COMMISSIONER HENNING: It's 19 and a half.
MR. YOVANOVICH: It's 19 and a half here and 23 and a half
here.
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February 13, 2001
COMMISSIONER MAC'KIE: So it's about 20 feet that you
have to ask for now that used to you didn't have to ask for. You
got it automatically because you got to measure from the
property line instead of from the seawall.
COMMISSIONER FIALA: That's feet that you can't really use
anyway because there is mangroves in there, right?
COMMISSIONER MAC'KIE: He can get under, but he can't
get his boat under it, yeah.
CHAIRMAN CARTER: Okay. We have a rebuttal by Mr. Pires.
MR. PIRES: If I may, as I mentioned before, I objected to any
testimony or attempts by Rich in his argument to introduce new
testimony or evidence. And I believe he has. For example, his
reference to how the code has been applied was never part of
the proceeding for the planning commission. That should be
struck.
COMMISSIONER MAC'KIE-' Tony, that's the same as you're
submitting the Goodland transcript.
MR. PIRES: That's a transcript. That's not -- you're saying
it's not -- I'm not introducing Goodland from an evidentiary
standpoint of this proceeding, but from the procedural aspect of
how the public is not allowed to comment. That's the only
reason for that being introduced.
I think one point of confusion -- and Rocky was good at
doing this at the planning commission -- is trying to say, the old
and the new and blending them all together.
And Commissioner Mac'Kie, you mentioned that there was a
-- and Rich said, Gee, he didn't use the 54 foot distance that was
approved by the planning commission. I think what this shows
you is that area again. This is the 54 feet that was approved.
The testimony in the record from Mr. Shatzel, who has his dock
here, 20 feet out --
COMMISSIONER MAC'KIE: I can't see it.
MR. PIRES: Okay.
COMMISSIONER MAC'KIE: I'm sorry. No, go the other way, I
think.
MR. PIRES.' This gentleman here, Mr. Shatzel, he testified
his dock is 20 feet out from the platted lot line. This dock is 20
feet out from the platted lot line. This dock is 20 feet out from
the platted lot line.
They wish to go -- this dimension as testified to in the
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February 13, 2001
hearing, this from the seawall line to the platted lot line is 21
feet. You subtract that from 54, you come out with 33 feet to
this distance.
COMMISSIONER MAC'KIE: So this is 10 feet farther out than
its --
MR. PIRES: Thirteen feet.
COMMISSIONER MAC'KIE: Thirteen feet farther out than its
neighbors.
MR. PIRES: That's correct. And Mr. Shatzel, who has the
dock right here, testified and it's in the record: My dock goes out
from that original seawall line and I have a 27 foot boat docked
in there on a lift.
My waterlines are exactly the same as he shows in the
drawing. I have had that, my dock in there for ten years. I have
no problem with the waterline or the water level.
My boat is larger than the one he wants to dock there.
That's this gentleman right here who goes out 20 feet. And also,
you can -- so there is no difficulty for him yet.
This individual is saying that he needs to go out for this
mythical, hypothetical boat 15 feet beyond this established line.
And once again, it's part of the smoke and mirrors and confusion
that's meant to be generated saying, Gee, under the old rules we
could do something. But we're operating under the new rules.
And again, the consistent line is 20 feet out from the platted lot
line. 20 feet out from here.
If this Board were to be inclined to say, you don't need to
have a boat, that's a reasonable distance to put that dock and
substantial water depths can be achieved.
One other criteria in the Land Development Code with
regards to reviewing this as to excessive dock length, width in
the area. I think, Commissioner Mac'Kie, you asked that.
Section 2.6.23.6 says: Criteria. Whether or not the
proposed dock is of minimal dimensions necessary in order to
adequately secure the moored vessel -- which we don't have, so
you can't even answer that part, so that's out the window -- while
providing reasonable access to the boat without the use of
excessive dock area. If I may have two more minutes I'll wrap
up. Because there were a number of additional --
COMMISSIONER MAC'KIE: I've got questions.
CHAIRMAN CARTER: Okay. Go ahead.
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February 13, 2001
MR. PIRES: Going on the graphics utilized by the applicant,
you do have excessive dock area, this dimension here. It's an
additional 8 feet on top of what we have here and this is a couple
more feet. That's excessive and that can be moved in. And once
again, the water depths at 40 feet are 4.1 feet.
COMMISSIONER MAC'KIE: And, David, that is one of the two
questions I was trying to get to before. Could you put that back
on, Tony?
Is it part of my consideration today about whether or not I
think that deck is too wide? Is there testimony in the record
about why that deck is as wide as it is? That's what I'm saying.
Is that a sun deck? Is that the necessary size for the boat? I
just don't know.
CHAIRMAN CARTER: You're asking a design issue, I think.
COMMISSIONER MAC'KIE: Yeah. But it bears directly on
how far the dock sticks out.
MR. WEIGEL: I think it would be better to let the parties that
were advocates for the record and who are -- obviously know the
record to be able to respond to what the record is and what it
may mean.
COMMISSIONER MAC'KIE: Could somebody tell me if there
is testimony in the record about whether or not that is as narrow
as it can safely be?
MR. YOVANOVICH: Commissioner Mac'Kie, the one point is,
you need to look at the water depth below that deck. Even if we
did shrink it up, it's the water depth out in the water that
matters, not under the mangroves. That's where that deck is.
COMMISSIONER MAC'KIE: You can have that as narrow as
you want it. You can have three boards across there, but it
would still have to stick as far out into the water as it does in
order to get the depths that you need for the boat plus the lift.
MR. YOVANOVICH: Correct.
COMMISSIONER FIALA: But how do you know what kind of
boat it is that we're talking about?
COMMISSIONER MAC'KIE: Because boats are about 2 and a
half to 3 feet of --
COMMISSIONER COLETTA: They can't exceed the
dimensions of the dock with the boat.
COMMISSIONER MAC'KIE: No matter what.
COMMISSIONER COLETTA: And so they're limited to --
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February 13, 2001
CHAIRMAN CARTER: But the vessel, I guess, now has been
identified as being 30 foot, but in the code we talk about the
vessel which could be a rowboat to a yacht.
COMMISSIONER HENNING: As long as it's not a car.
CHAIRMAN CARTER: As long as it's not a car. Unless it's a
Volkswagen. They float.
COMMISSIONER MAC'KIE: Thank you because that did
answer my question. It's not relevant how wide that sun deck --
if that's what it is, it's not relevant how wide it is because the
water depths still have to be reached and you can't reach them
until you get far enough out.
So I'm getting there. That despite everything I'm hearing, if
the fact of the matter is, is that -- and assuming for a second that
I'm not going to buy the technical argument about, that they
have to own the boat ahead of time.
If I'm not going to buy that one, then I'm looking at whether
or not the planning commission looked at the facts and found
that this dock meets the requirements.
And the requirements were, is it as short as it can be for the
boat -- the boat that we now think is the 30 foot boat -- and still
be safe for water depths?
CHAIRMAN CARTER: Well, I'm going to go to Commissioner
Abernathy's argument that says: There is nothing that says one
has to have a tuning fork shaped dock. And that's what an
assumption is here.
And he's saying that, you know, you may have a different
configuration of a dock which -- where a normal 20 foot dock
having failed to meet the bill. And it seems to him that, you
know, that it's -- it was a design issue for him. So he voted
against it and that's in his testimony, and because this is all
hypothetical, the vessel is hypothetical, although we are told --
but I don't know if that couldn't change. I don't think it's cast in
concrete that it's going to be. I haven't read in here that it's
definitely going to be a 30 foot boat.
COMMISSIONER MAC'KIE: Well, Commissioner, if I have a
30 foot boat today and I come in and get a boat dock extension
permit and then I sell my house to you and you have a 20 foot
boat, the dock is still there.
CHAIRMAN CARTER: That's true. It's a question, though,
when they go for a boat dock permit, when the house is under
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February 13, 2001
construction, of what they are going to be able to do.
That's what they're trying to -- that's what they're trying to
determine in here, what they can sell. It's not a question of, I
own the property today. I'm building a house for me and I want
to put in a boat. That's not what I hear anywhere here.
COMMISSIONER COLETTA'. May I suggest we listen to the
final arguments?
CHAIRMAN CARTER: Mr. Pires and then we go to Mr.
Yovanovich. We'll give him the same.
MR. PIRES: Thank you. Once again, that -- looking at the
criteria of 2.6.21.3, another criteria, whether or not the proposed
dock facility and moored vessels -- excuse me -- 23.2, whether or
not the water depth -- this gets back to where the proposed dock
facility is located -- is sufficient to allow for safe mooring of the
vessel; thereby necessitating it.
And I know you're saying, well, they didn't testify as to any
range of vessel other than 30 foot in the application, 26 foot at
the October 5th and then back to 30 feet during the course of the
November 2nd meeting.
But again, there is no boat identified as to the type, make,
model or draft by the petitioner. And I object and would like to
have struck from the record testimony by Mr. Yovanovich as to
who was acquiring what boat, which wasn't in the record, the
testimony as to the 18 inches of the lift. I don't believe that was
in the record. There was testimony as to water depths, but I
don't believe the 18 inches was in the record.
As to, once again, the -- by approving this, like the planning
commission did, the process is being turned around and doing
exactly what Rocky Scofield says. I get the extension and we
buy the boat to fit the dock.
And the criteria -- the ordinance doesn't say that. Once
again, you might as well get rid of that part of the code. You're
supposed to have objective criteria, not speculative analysis as
to what type of vessel.
They could have come in and said, we are buying a 30 foot
vessel of this make, model and type of draft. That wasn't done.
They had two chances for that; October 5th and November 2nd.
And they knew on November 2nd that we raised the issue
because I filed an appeal, which is part of this record. So they
knew. They still didn't have a boat on November 2nd.
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February 13, 2001
And as to the water depths, the testimony, once again, the
neighbor, Mr. Shatzel says, I'm two lots down. I have a dock that
goes out 20 feet from the platted property line. I've been there
for ten years and I don't have any difficulty.
So therefore, if this Board deems it appropriate to even
consider this request, which we think is inappropriate, this
gentleman has had his boat for ten years.
COMMISSIONER MAC'KIE: Did he testify as to the length of
his boat?
MR. PIRES: Yes. 27 feet. Very specifically he testified, I
have a 27 foot boat docked in there on a lift. My waterlines are
exactly the same.
COMMISSIONER MAC'KIE: On a lift?
MR. PIRES: Yes.
COMMISSIONER MAC'KIE: And that's that 18 inch thing?
MR. PIRES: I don't know. But there is a lift right there. My
waterlines are exactly the same as he shows in the drawing. I've
had no problem with the waterline and the water level. My boat
is larger than the one he wants to dock there.
On October 5th, we're talking a 26 foot vessel. So he's out
20 feet. This isn't justified. The water depths, as you can see
from the various exhibits, show substantial depths being 4 feet
achieved at this -- 4.1 at this distance and 5 here -- about 4.8 at
40 feet. So you have substantial depths here.
Ms. Burkhardt, she measured it at lowest tide, was 5 feet
and she was 10 feet into this area here. So you have substantial
water depths, assuming you get past that first argument.
CHAIRMAN CARTER: I'm going to have to ask you to wrap
up here.
MR. PIRES: And we believe, once again, it should be denied
-- excuse me -- it should be reversed in its entirety. If the Board
deems it appropriate, that it should be no greater than 20 feet
from the property line, not the seawall. Thank you.
CHAIRMAN CARTER: Thank you.
Mr. Yovanovich, closing arguments.
MR. YOVANOVICH: I want to point out real briefly that your
county attorney advised you that these are not pass/fail criteria.
These are factors that must be considered by the planning
commission. Even so, let's get away from the argument of, if you
miss one, you fail. That's not the standard, okay.
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February 13, 2001
Let's get -- there is no requirement in your code that you
own the vessel. We have told you the parameters of the vessel.
It is going to be no more than 30 feet in length and it's going to
have a 2 and a half to 3 foot draft.
That was testified to at both hearings. 2 and a half to 3 feet
in draft by Mr. Scofield at the October hearing and also confirmed
by Ms. Burkhardt at the second hearing.
We identified for you the maximum vessel we can have.
That's what your code wants to know. What is the vessel going
to be? What are the parameters of the vessel? It doesn't say,
Give us the make, model and number of the vessel you're going
to buy and hope you get it. You get the extension, when I refer
to "it."
He wants you to assume that the water depth in front of Mr.
Shatzel's lot is exactly the same water depth in front of our lot.
We have no record in that there is no survey of Mr. Shatzel's
water depth.
There is a survey of our water depth. We have provided you
with a survey to show to you where you need to go to get to deep
enough water. And whether you build it as the tuning fork or
whether you build it parallel, you still have to go out 54 feet,
okay. It doesn't -- the design of the dock doesn't matter.
Whether it's perpendicular or parallel, you get to the same depth
of the water.
I close by saying that we have met the standards. We had
the right to apply for it. You know exactly what the vessel is.
The planning commission had ample testimony on each of the
criteria, considered each of the criteria and approved it.
Unless you find that they did not consider those criteria, it is
my position, my legal argument that you cannot overturn their
decision. Thank you.
CHAIRMAN CARTER: Questions?
COMMISSIONER FIALA: I have one. When we talked about
the tuning fork, isn't there a dock further on down that is a
turning fork but it's kind of this way? Does the vessel -- is it like
a 26 or a 30 foot vessel and does that fit in there or is that
because of the difference in water?
COMMISSIONER MAC'KIE: Is that in the record?
MR. YOVANOVICH: Other than I think it may be shown on a
picture. I don't think there was any testimony, Commissioner, as
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February 13, 2001
to the depth of the water there.
COMMISSIONER FIALA.' Okay. Thank you.
COMMISSIONER MAC'KIE: It's so weird.
CHAIRMAN CARTER: Questions, discussion among the
Board?
COMMISSIONER COLETTA.' What we're looking to do here is
to either accept this appeal and move forward or deny this
appeal. And what we're making the judgment decision on is, did
the planning commission, in their infinite wisdom and with the
facts presented in front of them, make a logical and correct
decision?
CHAIRMAN CARTER: I understand that. I'm going to move
for denial.
COMMISSIONER MAC'KIE: To deny the appeal?
CHAIRMAN CARTER: Deny the -- well, no. What I want to
say is, I want to send it -- I don't want to approve this dock. Help
me with the wording.
COMMISSIONER MAC'KIE.' You want to reverse it. I'm not --
I don't feel that way. I'm afraid they've -- I think --
CHAIRMAN CARTER: I'm going to make a motion to reverse
it.
COMMISSIONER FIALA: And I'll second that motion.
COMMISSIONER MAC'KIE: So the motion on the floor is to
agree with Tony's side instead of Rich's side? CHAIRMAN CARTER: Correct.
COMMISSIONER MAC'KIE: Get it out there simple.
COMMISSIONER FIALA.' And I admire what Rocky does. I
always -- he's probably one of the most honest individuals I've
ever met. And I know he builds a great dock, so this is very, very
difficult for me.
But because -- even though Rich has said, we've exactly
identified the vessel, I don't think we have. I think that -- and
that was brought out over and over again by Commissioner
Abernathy. And I think Commissioner Young also had a problem
with that and so that's why I have a problem accepting that.
COMMISSIONER HENNING: Well, in the criteria, that's why I
needed a clarification of my question, the vessel. And it is not
one of the criteria. You don't have to own the boat to get the
dock petition. So that's where I'm coming from.
And I was, you know, considering turning it down just
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February 13, 2001
because of that reason. And it's clearly not there. You don't
have to own a boat. So I can't support your motion.
COMMISSIONER COLETTA: I also can't support that motion.
The reason being is the fact that if I was on the planning
commission, I might have disagreed at that point in time. But
the logic they used and they based it on, I find it to be factual.
COMMISSIONER MAC'KIE: So call the question.
CHAIRMAN CARTER: I call the question. All in favor signify
by saying aye.
COMMISSIONER FIALA: Aye.
CHAIRMAN CARTER: Aye.
Those opposed?
COMMISSIONER COLETTA: Aye.
COMMISSIONER MAC'KIE: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN CARTER: Motion defeated.
COMMISSIONER HENNING: I make a motion that we
approve the --
COMMISSIONER COLETTA: It's weird how you get those
words twisted around. I hope we got the message across right.
Yeah. You want to move to deny
COMMISSIONER MAC'KIE:
the appeal.
COMMISSIONER HENNING:
Thank you.
COMMISSIONER COLETTA: That's correct.
COMMISSIONER MAC'KIE: Second.
CHAIRMAN CARTER: Discussion?
Again, I'll state that I am opposed to that.
A motion to deny the appeal.
Based on what
Mr. Abernathy said, there was not unanimous decision on the
planning council on this. There was an interpretation. And I feel
that, again, with the criteria they looked at, I'm not comfortable
with that and that's why I cannot support your motion.
MR. PIRES: Mr. Chairman, I know -- maybe it would be out of
order.
CHAIRMAN CARTER: You are, sir. You are, sir, you're out of
order.
MR. PIRES: I don't believe the choices are as indicated by
the Commission. It is not just to accept or reject. It can approve
with modifications, approve or reverse.
COMMISSIONER COLETTA: And I understood that.
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February 13, 2001
COMMISSIONER MAC'KIE: I didn't.
COMMISSIONER FIALA: I didn't.
CHAIRMAN CARTER: I didn't. I was told this morning, we've
either got to reverse it or we've got to accept it. There were no
modifications.
MR. WEIGEL: In your written instructions here it indicates:
Cannot be modified nor rejected unless you have these findings
of not supported by substantial evidence or contrary to one of
the elements of law.
COMMISSIONER MAC'KIE: So if we found it was contrary to
one of the elements, then we could modify?
MR. WEIGEL: You have to make that finding that it's
contrary before you can modify.
COMMISSIONER MAC'KIE: And I can't find that.
MR. WEIGEL: You can't substitute your judgment if you don't
find one of those elements wanting there.
COMMISSIONER MAC'KIE: So, for example, Donna, the
option available to you is, you think that it's contrary to law
because there is not a boat. So if the majority of the Board
agreed with that, then we could modify under our attorney's --
Rich, and I can look at you -- under our attorney's advice, we
could modify the approval if we found a part of the decision by
the planning commission that did not comply with the code.
COMMISSIONER COLETTA: Is this correct, Mr. Weigel?
MR, WEIGEL: Well, it is correct. And again, if it's not
supported by substantial evidence -- and of course the arguments
before you are that there is evidence to support the conclusion
of the planning commission and an argument that there is not
evidence or contrary evidence.
And secondly, that you make a finding, one or the other or
both, that it's contrary to the growth management plan, the Land
Development Code, the future land use map and a couple other
land use regulations that the county has. And so you'll need to
state that for the record as the reason why you find the decision
below illegal, inappropriate.
CHAIRMAN CARTER: Well, let me ask you this question,
Counselor. When you begin to set precedent in these areas, then
that opens the door for anyone along there to come in and say,
well, you did this. Now I can come in and I can extend mine.
And so then it becomes a question of navigation and everything
Page 73
February 13, 2001
else,
What I'm trying to do is close the door. I really don't feel,
whether you use the old code or the new code, that this length is
justified. They could have done it based on the precedent of
docks that are in there which are showed visually and by
testimony of the neighbors in that area. And that's why I cannot
support that.
COMMISSIONER MAC'KIE.' Commissioner, boy do I want to
agree with you. But the facts that I saw said that to get to 4 feet
of depth, they have to go to 54 feet out.
CHAIRMAN CARTER: No, you can't have audience
participation.
COMMISSIONER MAC'KIE: The survey showed that to get 4
feet of depth, you got to have 54 feet of length. That's all -- I
mean, gosh, I wish I could listen to these people, but --
CHAIRMAN CARTER: There was another input from another
person that was contrary to that that was --
COMMISSIONER FIALA'- During the testimony.
COMMISSIONER MAC'KIE: But it was down the road, you
know. It wasn't as to this piece of property. It was a couple of
lots down. And we know that it might be deeper a couple of lots
down or it might be shallower a couple of lots down.
CHAIRMAN CARTER: That's not my understanding that it
was --
COMMISSIONER COLETTA: If I may. I think we've
discussed this to the point, we've taken a vote. We've brought
an end to the subject, but I still want to get the last word in.
I think what we're dealing with here is a code issue. We
have to take up -- we have to get it changed to be able to modify
it so it meets the actual needs that are out there.
And here we had a situation that was different. It was not
politically motivated, like a lot of our past decisions have been.
And it's real hard to deny people.
I mean, if this issue came before me and I could take into
consideration the political aspects of all the people here, I very
likely might have found differently. But I was told I couldn't do
that. I had to stick with within this particular parameter and I've
done exactly what I was told to do.
COMMISSIONER HENNING: Very well said.
CHAIRMAN CARTER: If you read all the testimony or
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February 13, 2001
watched the videos of the people who came -- COMMISSIONER COLETTA: I did.
CHAIRMAN CARTER: -- and were against this, then you
would get the feeling from the community. So I think, you know,
it's up to you, whatever your decision there is. I respect your
decision. I just can't go th
ere.
COMMISSIONER FIALA: It did state that someplace in here,
about the feeling of the community.
CHAIRMAN CARTER: And there was one commissioner that
based her decision primarily -- or his decision primarily on that.
COMMISSIONER COLETTA: I probably would have based it
on the feelings of the community if I was asked, to be able to use
that as a parameter. But we're making a judgment decision
based upon a decision that was made previously. We can
discuss this all day long. Let's move on.
COMMISSIONER MAC'KIE: Can I ask a couple of questions?
CHAIRMAN CARTER: You call the -- I'll call the question. All
in favor signify by saying aye.
COMMISSIONER HENNING: Aye.
COMMISSIONER MAC'KIE: Aye.
COMMISSIONER COLETTA: Aye.
CHAIRMAN CARTER: Opposed by the same sign.
COMMISSIONER FIALA: Aye.
CHAIRMAN CARTER: Aye.
Motion carries 3-2.
COMMISSIONER MAC'KIE: The appeal is denied?
CHAIRMAN CARTER: The appeal is denied.
UNIDENTIFIED AUDIENCE MEMBER: I have some property
that has been for sale for two years before this. It's for sale now.
It's going to be for sale. You people should know, you just made
him a big profit. That's all you did.
UNIDENTIFIED AUDIENCE MEMBER: You don't know how to
measure water.
CHAIRMAN CARTER: This is not a place where you yell and
scream at Commissioners. You may disagree with us, but you do
not have a right -- we treat you as ladies and gentlemen. We
expect the same up here.
So please, the vote is done.
COMMISSIONER MAC'KIE: Thank you, Jim.
Page 75
February 13, 2001
Item #13A4
PETITION A-2000-02, ANTHONY P. PIRES, JR., REQUESTING AN
APPEAL OF THE COLLIER COUNTY PLANNING COMMISSION'S
APPROVAL OF A BOAT DOCK EXTENSION, BD-2000-23,
APPROVED ON OCTOBER 19, 2000, FOR PROPERTY LOCATED AT
9207 VANDERBILT DRIVE, FURTHER DESCRIBED AS LOTS 5 AND
6, CONNERS VANDERBILT BEACH ESTATES - APPEAL GRANTED
CHAIRMAN CARTER: Next item. We need to keep moving.
We've got a 1:00 certain.
MR. OLLIFF: The next item would be 13(A}(4).
CHAIRMAN CARTER: The same kind of discussion.
COMMISSIONER MAC'KIE: I ordered lunch. Didn't you say
that we had to leave at 12:00 till 1:007
CHAIRMAN CARTER: Well, at 1:00 you've got a time-certain
item on your agenda. We need to keep moving on this.
MR. OLLIFF: We could go straight to the appellant. Mr.
Pires.
MR. PIRES: Again, for the record on this appeal, Anthony
Pires, Jr.
COMMISSIONER MAC'KIE: Before you start, may I ask the
Chair a question? Are we going to skip our lunch break today? It
sounds like if we start this, we're going to spend another hour on
it.
CHAIRMAN CARTER: Well--
MR. WEIGEL: I expect we're going to go to 6:00 tonight.
COMMISSIONER MAC'KIE: Yeah. Like I said, I ordered in.
CHAIRMAN CARTER: However we've got a 1:00 certain.
MR. OLLIFF: We do. Which would mean we would have to
hear that item at 1:00 and then come back and pick this one up
after that.
CHAIRMAN CARTER: We promised these people that we
would move through it. So I'm going to exercise the prerogative
of the Chair. We're going to keep going.
If we can do this in a shorter period -- because a lot of your
questions have already been answered as applies to the next
case.
COMMISSIONER MAC'KIE: That's true.
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February 13, 2001
CHAIRMAN CARTER: So let's hear it, counselor for the
appellant.
MR. PIRES: If I may have a moment to gather the
documents for that particular. One thing -- I've had 20 minutes. I
raise the same procedural issues as I had before and make them
part of the record and the same objections as to the basically
gagging of the public for the inability to comment to this Board.
I think it's unprecedented, again, and inappropriate. It's the
first time I've ever seen this in this county, quite frankly, and I
think it's frightening; absolutely frightening.
Also, I hope you pay close attention to the testimony and
evidence involving a depth. Because the comments at the last
meeting where the commissioners made a comment that the 4
feet wasn't achieved until 50 out at 4 feet. If the record would
be more accurate --
CHAIRMAN CARTER: If you would keep your comments to
the subject and not refer to past cases.
MR. PIRES: Thank you. Again, we have an issue in this case
-- and I know the Board has -- probably thinking that they've
established a precedent which will open the floodgates.
In this case we have five boats, though, and the five boats
are numerous. And I really don't recall any testimony as to any
range of depths or any depths by anybody in this case. There is
just a number of boats that are in the application.
The petitioner in this case is asking for a 5 foot slip -- a boat
slip extending out a substantial distance into the waterway. And
it was approved into the waterway by the planning commission.
And once again, unspecified, unarticulated boats of lengths
of 40 feet, 30 feet, 35 feet are provided. And in fact in reading --CHAIRMAN CARTER: We need to have it quiet in the
audience, please. You need to take your conversations outside.
MR. PIRES: One 40 foot vessel, two 30 foot vessels, two 35
foot vessels. And again, the application and petition is
premature and there are no vessels.
Again, no type make, or model of vessel. Nor did the
petition state what amount of water depth was necessary for any
of the vessels. Nor was any such information presented or
provided to the planning commission. There was nothing in that
record that even talked about how much the boats would draw.
Mr. Scofield again said, quote, at page 23 of the transcript in
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February 13, 2001
this case: I don't know what size boats are coming in there'
Again, we're left to speculate.
Again, I'm going to take the Magic Marker myself and submit
it to this planning commission and ask that they delete that
Section 2.6.21.3.2 from the code that says one of the questions
that needs to be addressed is whether or not the water depth
where the proposed dock facility is to be located is sufficient to
allow for the safe mooring of the vessel; thereby necessitating
the extension request.
Five boats, no testimony as to depths in the petition. No
testimony at the planning commission as to what the boats
would draw. And then you have the petitioner's representative at
the planning commission saying, I don't know what size boats
are coming in.
That's at page 23 of the transcript. So we have no idea as
to what water depth is needed to provide for the safe mooring of
these hypothetical I-want-to-buy vessels; therefore there is
nothing necessitating or associated with depths necessitating
the request. You can't even answer that question. And so I think
they fail to achieve that particular criteria.
Once again, you have in this particular case some water
depths and soundings that were made by the applicant in this
particular case. One of the items that was introduced to be
utilize by the applicant to show the water depths in the area was
a particular graphic indicating -- and that's also posted on the
wall. He wound up in Vanderbilt lagoon.
COMMISSIONER MAC'KIE: Tony, could you -- oh, you were
doing that.
MR. PIRES: This is the subject property which is -- this
application -- this document does not show the location nor the
scope of the proposed docks.
COMMISSIONER MAC'KIE: Yeah, I see that.
MR. PIRES: Once again, you end up having a fragmented
view. This may or may not be to scale, but this document shows
the apartment complex. These are the proposed docking
facilities at issue in this particular case.
So they would come out from here. And they come out,
interestingly enough -- this is Chateau Vanderbilt, as identified on
one of the other documents. This is Chateau Vanderbilt.
The proposed docks -- since they're twice as long as the
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February 13, 2001
proposed docks along Chateau Vanderbilt, yet you see the water
depths here are about the same in this particular area.
COMMISSIONER MAC'KIE: I can't read those.
MR. PIRES: This is 39, 40, 41, 45, 44 -- 44. And on Chateau
Vanderbilt it's 46, 43, 42, 40.
The applicant also provided another document evidencing
various depths of water in that area that was not -- that didn't
scale out the distances from the seawall, but I have scaled that
out to show that there is plenty of water within the requisite 20
foot distance from the seawall in this particular location.
You'll hear argument by Mr. Passidomo, I'm sure, indicating
that they need to go out there because of riprap, yet I believe
you also see some of the pilings from this dock are located in the
riprap.
And the riprap slopes out a distance of 10 feet from where
the seawall slopes out. And at 8 feet out, I believe the testimony
was, it was completely in the mud.
So that you don't have any difficulty -- and I think that's not
an appropriate utilization of the code or justification to show that
you need to go out the distance that is requested in this
particular application.
Again, we have the subject property that is depicted in this
particular diagram or sketch and sounding. This is the property
line. This is the location.
What they don't show you, again, is the -- I've scaled it out to
show the water depths and 3 and a half feet is achieved at 20
feet out to the lot line. And 3.7 foot depth is achieved at 20 feet
out. You go out 40 feet from the property line you're at 3.8 feet
and you're at 4.0 feet.
In this particular instance the authorization was for 52 feet.
So you go out 50 feet and again you're at 3.8 and 4, which is the
same at 40 feet; and real close to around 30 on this particular--
So once again, the water depths are sufficient in our
argument, assuming you don't need a boat. Which again, I find it
interesting that in this case there are five boats named, no
testimony as to depths, no make, model and type at all given.
And that any dock that is authorized should be only 20 feet.
The testimony in the record also showed that the docks at
Chateau Vanderbilt are 20 feet out or 25 feet out approximately
from the property line. And as indicated before, the water depths
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February 13, 2001
in that area appear to be, you know -- when you get out a
distance are pretty much the same as the water depths in the
subject property. So there is no justification to go out the
distance that is requested. They achieved at 52 feet.
COMMISSIONER MAC'KIE: Is there any testimony in the
record, Tony, about the water depths adjacent to, you know --
closer in the seawall?
MR. PIRES: Chateau Vanderbilt, no. But this one, yes. This
is the one that I showed earlier that 20 feet out you're 3 and a
half and 3.7. At 40 feet out you're at 3.8 and 4. At 50 feet out
you're at 3.8 and 4.
COMMISSIONER MAC'KIE: And the total length there they
were approved for is?
MR. PIRES: Fifty-two feet. Once again, the planning
commission had, you know, questions with regard to that and
queried them extensively as to what was the reason for needing
this.
And one of the other concerns of the community is -- and you
can see in that particular area -- the applicant says it's a large
body of water, but it's really a constrained body of water. It's
900 feet across from here to here.
You start extending these docks out and you have -- in the
center of this particular area you pretty much have a sandbar.
That was testified, it's very shallow. Okay.
And I think the testimony from Rocky Scofield was, you get
a depth of 3.8 feet in the middle. So in this middle area here you
have 3.8. You're narrowing it down substantially, the navigability
of this waterway.
And again, I cannot tell you -- and I think you know, that if
this is approved at 52 feet, these people will come in at 52. They
won't even have a boat. These people will come in. And if they
have any depths that are low, they'll come in at 52. Everybody
around here will be at 52 feet.
You're going to have -- you talk about congested roadways.
You're going to have a constrained waterway that has severe
adverse effects resulting from the precedent that you'll be
establishing today.
CHAIRMAN CARTER: Commissioner Fiala has a question.
COMMISSIONER FIALA: Thank you. If you'll put that back
on there one more time. What I was mainly concerned with is
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February 13, 2001
that the end of the docks there are so close to the dock sticking
out from the other side. Would that make safe passage through
that area?
MR. PIRES: I believe the testimony from the property
owners here indicated that, yes. Also, it appears that Ms. Griffith
and Ms. Farrell live here.
COMMISSIONER FIALA: We can't see that.
MR. PIRES.' Ms. Griffith and Ms. Farrell. They testified on
the issue to view, which is another issue. Ms. Griffith: I'm Mary
Griffith. I'm the one who has lived 25 years at 474 Palm Court.
And we will have no view, sir, no view.
It shows clearly it would go right across her whole house.
And what is the staff approach? View is subjective. In this case
you have someone who has lived there 25 years and you have
nothing there now and you have this right across it.
Now, once again, another cavalier approach by the planning
commission was, Well, gee, you have a ten-story condominium
located over here. Why should you be so concerned?
I guess the analogy I would draw is, if you have a house on a
golf course, you have a nice view across the greens. The
nearest condominium, ten stories, is 900 feet away.
And then the golf course decides to build a bridge right in
front of your house or some particular impediment that is a
hundred feet. That because you had ten story across you
shouldn't have the ability to say, My view is ruined.
The view is ruined. The view is affected. And that alone is
not minimized by this application. It's exacerbated by this
application.
And Ms. Farrell, she also stated that she's building a million
dollar home right on the end here. And I'll definitely have no
view. And that same point was raised by Commissioner
Abernathy. He raised it. He says, Well, you know, she's not
going to have a view with regards to, you know, when this
particular boat dock facility goes in.
This is the current view. This is the seawall of the subject
property. This is the subject property. This is the property which
would extend out 60 feet. This is the condominium across the
lagoon.
This is taken from Mary Griffith's property. It would extend
down 60 feet across here as opposed to 20 feet one-third the
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February 13, 2001
distance -- well, there it's 62 feet, so 20 feet. They approved it at
52 feet. So as opposed to being here and still having a view of --
it would go out substantially further. And this is the subject
property.
One other point that came up here in the course of the
hearing was, why are they locating the docks towards that part
of the canal? And I think it's the -- their upland design drove
where they wanted to put the dock.
COMMISSIONER MAC'KIE: As opposed to what?
MR. PIRES: In other words, the question was raised, why
couldn't the docks be more towards the center of this property?.
So that you move them in and shorten them up.
And basically the testimony by the applicant or his
representatives was that there was issues about going through
privacy walls and pool areas. And I think, once again, that you
have an upland issue driving a dock location issue, which drives
where they want to put it and how far they want to put it out.
COMMISSIONER FIALA: Wasn't that originally designed for a
handicap accessibility, but then later on the purchaser decided
not to buy that? So possibly those docks could be moved.
MR. PIRES: I know this too presides the question. I think
the planning commission took that into account when they
reduced it by getting rid of the handicap ramp. I believe that
occurred in this particular case.
What we have here, again -- and I think it's important in this
case -- the testimony by Rocky Scofield as to the vessel or lack
thereof. This is at page 23 of the transcript.
Priddy asked, Well, I don't think I mean -- I don't know what
sized boats are coming in there. I don't know what the people
have bought, if they have bought them or not.
But these are basically 30 and 30, 36 and 30 foot slips. The
people that come in there, I don't know if they're going to buy a
20 foot or 30 foot. But you know, they're designed for 30 and 36.
But again, he doesn't testify as to water depths. He doesn't
testify as to drafts. But again, we're getting into a speculative
area that I think is a very dangerous path that this Commission is
embarking upon in this particular regard.
COMMISSIONER MAC'KIE: Tony, may I ask you a question,
please?
MR. PIRES: Yes.
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February 13, 2001
COMMISSIONER MAC'KIE.' You're advising us that there is
no testimony in the record about the draft of the boats?
Assuming again that we're talking about a 30 to 36 foot vessel,
there is nothing in the record that tells us what the draw might
be of the boat?
MR. PIRES: No, ma'am. My recollection is, no, there is
nothing in the record.
COMMISSIONER MAC'KIE: Otherwise I don't know how I can
be concerned about water depths. I mean, water depths is what
sold me on the previous petition. But if there is nothing here on
how much the boat draws, how do I know how far out it needs to
go?
MR. PIRES: Once again, that is the fundamental problem, I
think, is a flaw in the application and a fundamental flaw in the
consideration of this application by the planning commission.
What I'd like to do in this is -- once again, we have the
navigability issue. The application, curiously enough, is
inconsistent too.
The application says that the navigable channel waterway is
1250 feet. In the other part of the application it says the water
body is over 1500 feet. And then there is testimony in the record
about 900 feet, but then the shallowest point to the center of the
lagoon is 300 feet.
So I mean, you end up -- with this from the petitioner's own
mouth and the petitioner's own experts as to what we have. And
I think that goes to the credibility of the petitioner and his
applicant in this particular application.
And once again, you have a constrained waterway -- and as
far as dredging, again, the issue came up about dredging. B.J.
Boyer, again, talked to Mark Miller of DEP, and she said, yes,
they could dredge. The applicant said, no, they couldn't. But she
testified, page 40 of your agenda packet, page 12 of the 10-19
transcript, yes, they could dredge.
COMMISSIONER MAC'KIE: And who was that testifying?
MR. PIRES: B.J. Savard Boyer. And she called DEP and she
said, I talked to Mark Miller. He told B.J., Ms. Savard, Mr. Miller,
that, yes, they could dredge.
So we have no competent substantial evidence presented at
the planning commission which warranted the planning
commission to approve this application at all or to even consider
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February 13, 2001
it.
additional rebuttal.
CHAIRMAN CARTER:
let them switch.
(Brief Recess.)
CHAIRMAN CARTER:
If I could save the remainder of my time, whatever that is, for
We need to take a couple minutes to
Note the absence of Commissioner
Judge Mac'Kie. She will be here shortly.
MR. PASSIDOMO: Mr. Chairman. Good afternoon,
Commissioners. My name is John Passidomo We represent
Liberty Ventures, the party whose petition is being challenged to
this appeal. My colleague, Lisa Barnett, appeared before you
before. I'm pinch-hitting for Lisa during her absence from the
office this week. The facts before you are simple, and they're
uncontroverted but they bear repeating.
The record will show that Liberty Ventures sought FDEP
approval to dredge to locate five slips in low water within 20 feet
of shore as part of its five-unit condominium along nearly 300
feet of shoreline on a wide section of Vanderbilt lagoon. The
record will show that DEP raised concerns about the
environmental impacts of dredging and suggested that the slips
be located deeper under -- deeper underwater, further from the
shore.
The record will show that Liberty Ventures made application
to locate the low profile floating docks without lifts,
distinguishable from the last facts presented for you, in deeper
water to avoid the environmental impacts identified by the
Florida Department of Environmental Protection.
And the record will show that the Planning Commission
found, as the county's finder of fact, that the application
complied with the criteria and the land development code and in
a six to one vote approved a 32-foot extension of the docks into
what is a 1500-foot wide lagoon in what they considered final
action by your Planning Commission.
An observation by -- made by Commissioner Abernathy -- and
he was quoted in this submittal and quoted again, but in fairness,
I would like to quote from Commissioner Abernathy immediately
prior to his vote. It seemed to summarize the sentiment of the
Planning Commission, and I'll quote: Unpersuaded by the
100-foot separation between the sea wall and the dock, that
that's a view that many people would cherish. So I'm in favor of
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February 13, 2001
the petition, and he voted accordingly.
Mr. Chairman, I'll defer to the county attorney on the
questions of jurisdiction. The commission has already looked at
the question of whether we're required to identify a specific boat
by model, by make, by color, by description. We've made
application for and our testimony in front of the Planning
Commission reflects clearly the size and length of the boats that
were being considered as part of our application.
But the significant question in front of you, and it's a
question of law, and that is -- and Mr. Weigel alluded to it in his
introductory comments. What is the criteria on appeal? What
are the standards under Florida law you're required to apply in
considering the question in front you on appeal?
Mr. Weigel told you that standard is, was there substantial
competent evidence to support the decision of the Planning
Commission? That is, was there reasonable -- reasonable basis
for the decision? Not was the Planning Commission right or
wrong? Not was there any evidence before the Planning
Commission to support a contrary conclusion? Not even, was
there more evidence in front of the Planning Commission to
support a contrary conclusion?
But simply, was a decision made by your Planning
Commission as final action as authorized by your land
development code based on a good reason? Florida courts say
that if that was the case, you must sustain and support the
decision, even if you disagree with it; indeed, even if, based on
the evidence, you would have come to a different conclusion.
That's why the county attorney admonished the board in his
introductory remarks that the appeal has to be based on the
record and why taking testimony today during the appeal raises
serious questions as the whether the decision made on the
appeal is based on the record or based on that testimony. It
admonished you correctly to limit any public input that you might
otherwise receive.
What is substantial competent evidence? The court -- the
courts here are absolutely clear. They have spoken repeatedly to
this doctrine. The testimony, the staff reports, the findings and
recommendations of your professional planning staff in and of
themselves have repeatedly been found by Florida courts to
constitute substantial competent evidence. The record is
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February 13, 2001
replete with that evidence.
In this case, there was also testimony supported by the
petitioners, Coastal Engineers, to the same effect. That
testimony concluded, and the recommendations of your own
planning staff concluded that there was sufficient mortar depth
to allow safe mooring, and the docks of the minimal dimensions
to minimize the impact of the view of the waterway by
surrounding property owners would not be unduly adversely
impacted.
The fact is that the appeal brought and the comments made
by counsel never challenges the basic fact that the Planning
Commission made its decision based on substantial competent
evidence. It simply states that there was also opinion offered to
the Planning Commission that could have led them in a different
direction.
The fact is, however, it didn't, and the Florida courts tell us
that the Board of Zoning Appeals, sitting in the capacity in which
you are sitting today, may not consider those opinions on appeal
and subject to its judgment for your duly constituted Planning
Commission.
You have delegated that authority to them. They are vested
with that authority to take final action. They took final action,
and that action is based on substantial competent evidence.
Whether you agree with it or whether you disagree with it, you're
obligated under law to sustain it.
COMMISSIONER MAC'KIE: So why are we even here then,
John, if we don't have a role to play?. Surely, we have some --
why are you here?
MR. PASSIDOMO: Commissioner, if there is substantial
competent evidence, there is no basis upon which to sustain a
challenge. Florida courts are absolutely clear on that point.
COMMISSIONER MAC'KIE: So you disagree with what our
attorney has advised us, that we can overrule or we can overrule
the Planning Commission if we find that there is not evidence to
support the compliance with the code? Because here -- let me
tell you exactly where I'm going. The same place I was going in
the last one is, it seems to me there needs to be evidence on the
point of how deep the water needs to be for the boats to safely
moor,
I'm certainly persuaded by environmental arguments as to
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February 13, 2001
what -- you know, that is also a factor, but are you -- do you -- are
you -- is it your position that we just don't have authority over
that question at all or?.
MR. PASSIDOMO: Commissioner, I think it's an excellent
question, but it's not distinguishable from the kind of questions
that were asked during the prior proceeding. I mean, during the
prior proceeding, clearly the majority of the board came to the
conclusion that each of the ten criteria don't have to be met
exclusively. That they are factors that need to be considered.
Clearly, the record reflects that these were all matters that
had and were considered by the Planning Commission, and once
the Planning Commission considers those factors, once they
take evidence and once it's of a substantial competent nature,
no, this board does not have the ability to supplant its judgment
for the judgment exercised by your Planning Commission.
COMMISSIONER MAC'KIE: So my -- my role would be to look
at what was the evidence that the Planning Commission
considered and determine whether or not I agree that it was
substantial and competent?
MR. PASSIDOMO: That's correct.
COMMISSIONER MAC'KIE: So have you pointed out to us
where in the record it tells us that this dock length is necessary
for this boat depth?
MR. PASSIDOMO: If I can confer with Mr. Scofield, who
actually was at that proceeding. I'm a little bit at a loss because
I wasn't here and I have only read the record, but while he's
looking for that record, there clearly is testimony to the effect
that the Florida Department of Environmental Protection
discouraged the dredging here because of the environmental
impact. In and of itself -- even if there is no other testimony, in
and of itself, truly that is sufficient to require that the docks be
moved out beyond the 20-foot limitation --
COMMISSIONER MAC'KIE: See, I don't even know where it
says in the record that the 20-foot limitation -- that the depth of
the water at that point is insufficient for a boat of 25 to 30 feet.
That's what I am looking for. Where does it say that?
COMMISSIONER HENNING: Mr. Passidomo, I need -- you
stated in the Planning Commission record there -- it was stated
the size of the vessel. So I need that. I need to see where that
is.
Page 87
February 13, 2001
MR. PASSIDOMO: I'll ask Mr. Scofield to help me, but it's
also in the application, Commissioner.
COMMISSIONER MAC'KIE: Well, that's adequate right there.
MR. PASSIDOMO: Yes. It's right in the application, and
there -- I know from having read the record and watched the
videotape, there were repeated references to the size of the
vessels,
COMMISSIONER HENNING: I just missed that or maybe I --
COMMISSIONER MAC'KIE: In the application.
COMMISSIONER FIALA: And they also mentioned view.
View seemed to be an important thing. Is view part of the LDC
code?
MR. PASSIDOMO: Yes, it is.
COMMISSIONER COLETTA: It's one of the criteria.
COMMISSIONER MAC'KIE: Did you share it with everybody?.
COMMISSIONER HENNING: Yes, I sent it out.
COMMISSIONER MAC'KIE: A copy of the code,
Commissioner Coletta -- I mean, Commissioner Coletta --
Commissioner Henning and I were looking at the code, and so we
made copies and put it in everybody's seat. I assume that's
okay. It's just a copy of the code, nothing outside of the record.
Because then you can see what the criteria are, and one of them
is view. But, again, they're not conjunctive. They're disjunctive.
So it's not all or nothing.
CHAIRMAN CARTER: We do not have an official statement
from the DEP on this; am I correct on that?
MR. PASSIDOMO: No, it's in the -- it's in the videotape. It's
on the transcript, and the statement was made, and that was the
basis upon which the decision was rendered by the Planning
Commission.
COMMISSIONER MAC'KIE: And, again, at the Planning
Commission, who gave that testimony with regard to the EP's
position?
MR. PASSIDOMO: Mr. Scofield.
COMMISSIONER MAC'KIE: Well, I certainly respect Mr.
Scofield's, you know, knowledge. He's like the guy in the county
who knows this stuff.
COMMISSIONER COLETTA: I got to repeat this question that
I've already heard. I answered two times, but I want to say it
one more time. This is the only criteria that we have to be
Page 88
February 13, 2001
concerned with, or is there other criterias, too?
MR. WEIGEL: No. That's the essential criteria. Other
elements of discussion in the first hearing to some degree had to
do with the general -- call it application of the code and the
ability of the Planning Commission to hear -- to hear the matter in
the first place, but those are the criteria regarding boat dock
extensions and boat houses and things of that nature. It starts
on the first page and carries over to the second page.
COMMISSIONER MAC'KIE: And our job is merely to say, did
the Planning Commission have substantial competent evidence
to find that in the whole these criteria were generally met?
MR. WEIGEL.' That is true, although the second part of your
review is, or is there a violation of the code in this particular
case by the action that the Planning Commission has taken? But
we've already had a bit of discussion in regard to the fact that
these criteria are looked at as individual criteria, and you'll note
at the instruction in the code following those ten criteria is in,
one might state, a presumption of duty to the Planning
Commission to take all of those criteria into effect and fashion
the decision that they make according to those criteria and the
concerns for any of those criteria.
COMMISSIONER MAC'KIE: You know, that sounds more
complicated than it needs to be because it seems to me that it's
just -- if there is not substantial competent evidence to say that
these criteria were met, then the flip side is also true, and the
code is violated or not violated. I mean, you decide if the code is
complied with or not complied with based on whether or not
there is substantial competent evidence of compliance. So we're
saying the same thing twice.
MR. WEIGEL: Largely so.
COMMISSIONER MAC'KIE.' You know, basically, we just
have to say is there substantial competent evidence that the
Planning Commission -- what is the substantial competent
evidence on which the Planning Commission found that these
criteria were met?
MR. WEIGEL.' That's true. The question is if they made a
decision based upon the wrong either interpretation or the wrong
application of law, but we know this is the area that they're
applying and that's where you can do your limited review.
CHAIRMAN CARTER: Okay. Following that then, I could
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February 13, 2001
question -- and I have respect for every attorney in the room. It's
not that issue or Mr. Scofield, but it was hearsay on the basis of
what he said about the DEP. There was no official letter there
from the DEP that said in effect we would prefer to have boat
dock extension versus dredging.
Now, that may be their policy because they would prefer to
see longer docks versus dredging, but that becomes a question
that would have to go through a review process with the DEP
because that's, as I understand it, their standing in response.
COMMISSIONER MAC'KIE: And that kind of goes to the
question, too, that it is knowledge in the general domain that in
DEP hates dredging.
MR. WEIGEL: Well, one thing to keep in mind as an appellate
court here is that no one -- no group can ascertain the credibility
of the evidence and testimony before it better than the group
that's hearing it and having it presented to them in the first
place.
COMMISSIONER MAC'KIE'- That's the presumption of
correctness in their favor. MR. WEIGEL.' Yes.
MR. PASSIDOMO.' And that's our point, Commissioner. The
overwhelming tendency to sit in this capacity is to supplant your
judgment for the judgment of the trier of fact, the lower tribunal.
The courts will tell you that you have to resist that temptation.
The fact is you just simply have to look at whether there was
good reason to support what they did. If there was --
COMMISSIONER MAC'KIE: That still gives us to do some
work up here because if we -- if we think that they didn't have a
substantial competent reason to find that the dock needed to be
that long or if we find that there is not substantial competent
evidence, for example, that the docks wouldn't be reconfigured
more safely if they were moved down. I mean, we could -- we
could look at that.
We could look at whether or not, is there evidence,
substantial competent evidence in the record that the docks
have to be this far out? I mean -- and so my question, again, for
you is, where in the record does it -- is the evidence that -- that
you would suggest is substantial and competent that the docks
have to be this long, assuming dredging is not a reasonable
option?
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February 13, 2001
MR. PASSIDOMO.' Mr. Chairman, if you'd give me a minute to
confer with Mr. Scofield. I apologize if I wasn't here before the
Planning Commission. I'm not as familiar as counsel would have
been of who were here. Mr. Scofield assures me he testified to
that repeatedly during that presentation.
COMMISSIONER MAC'KIE: That's what I need to know.
COMMISSIONER FIALA.' While you're talking with him, may I
just ask our county attorney a question?
MR. PASSIDOMO: You don't have to ask me permission for
anything, Commissioner.
COMMISSIONER FIALA.' County attorney, is it -- if in our
opinion things like view and safety were discussed by the
Planning Commission, some chose to -- some chose to vote for
this petition because they felt it didn't hamper, and some chose
to vote against because they felt it did, then am I allowed to, in
this new capacity as an appellate court, to also feel an opinion
one way or another?
COMMISSIONER MAC'KIE: Nope.
COMMISSIONER FIALA.' Because they were both --
CHAIRMAN CARTER: Well, wait a minute.
COMMISSIONER FIALA.' They were both giving -- they were
both giving their advice and voting for how they felt.
COMMISSIONER MAC'KIE.' I see.
COMMISSIONER FIALA: -- on views and safety.
MR. WEIGEL.' Your question is very good. It may be the
toughest one of the day. The fact -- if your question is that by
virtue of the fact that all of these criteria were allegedly
purportedly reviewed and considered by the Planning
Commission, does that mean that you can't look at these criteria
and determine if -- if you agree or disagree, the question is, is
there evidence before them where taken as a whole their
decision is supportable or not? So I think you're rather limited in
your review.
COMMISSIONER MAC'KIE: In other words, if the majority of
them -- if the majority agreed that there is substantial competent
evidence that this is safe, then the only way I can find that it's
not safe is if I look at what evidence they relied on and decided
they were wrong?
MR. WEIGEL: That's right.
COMMISSIONER FIALA: Same with view?
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February 13, 2001
COMMISSIONER: MAC'KIE: Same with view.
MR. WEIGEL: Same with view.
COMMISSIONER MAC'KIE: If they said the view is good or
the view is good enough, then the only way I can overrule their
determination about the view is if I look at what they considered
and say, no, that's not good evidence that the view is still good.
It can't be my opinion of the view.
MR. WEIGEL: The view, that's right.
MR. PASSIDOMO: Mr. Chairman, we need to go even further.
We think the case law is clear that if there is a staff report, a
staff recommendation from your professional planning staff
drawing a conclusion based on criteria, that's substantial
competent evidence in and of itself, and that's the thing that has
got to be tough to swallow because -- but that's where you need
to resist the temptation to exercise your own judgment or frankly
don't delegate the authority to take final action to your Planning
Commission.
But your code says that you have and you have and once
you have, then you can't take it away, and we respectfully
submit that that staff report in and of itself is substantial
competent evidence or we need to be able to show you to
require that position of the Planning Commission to be sustained.
COMMISSIONER HENNING: I found what I was looking for in
there of the size of the boats.
MR. PASSIDOMO: Yes, sir.
COMMISSIONER HENNING: And the number of the boats,
and one is a 40-foot boat. I would like to know which -- what
number in the dock slips is the 40-foot boat?
MR. PASSIDOMO: Well, Commissioner, that actually has
been revised because that was all premised upon a 40-foot
extension, and the Planning Commission actually reduced that by
a factor of 20 percent and in its resolution adopted only a 32-foot
extension. So there is no 40-foot boat anymore.
COMMISSIONER HENNING: Okay.
COMMISSIONER MAC'KIE: Because it was denied?
MR. PASSIDOMO: Yes. Yes, it was denied.
COMMISSIONER HENNING: Shortened four foot, if I
remember right.
MR. PASSIDOMO: Four feet twice. There was a total of --
first for the overhang and then for the handicap. So it was
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February 13, 2001
reduced from a 40-foot request to a 32-foot approval.
CHAIRMAN CARTER: Okay. If there are no further questions
of Mr. Passidomo, we'll go back --
COMMISSIONER MAC'KIE.' I'm still looking for an answer,
though, to the one.
MR. PASSIDOMO: I'm trying to help you with that, but I'm
also trying to argue that it is legally irrelevant because once that
staff report --
COMMISSIONER MAC'KIE: Okay. Your position -- I keep
hearing you say that about the staff report. So where in the staff
report does it say that they have to be -- that they have to be this
long for them to be safe?
MR. PASSIDOMO: The staff report makes a recommendation
based upon its review of the criteria that in and of itself
constitutes substantial competent evidence. That's the question
I think you -- you -- Mr. Yovanovich sold hard on. You have to
show a compliance with each and every criteria, or you look at
them as a whole and you show that you've met the standards.
Yes, you've met the standards. The best evidence that you met
the standards is your own staff report. It's dispositive.
COMMISSIONER MAC'KIE: Wow, okay.
CHAIRMAN CARTER: Okay. Rebuttal by Mr. Pires.
MR. PIRES: First of all, obviously, I'll disagree with Mr.
Passidomo's standard for review because I think we don't even
need to be here today. I think the board raised the question, why
are we here? The code says you've got the ability to reverse,
approve, or approve with modifications.
Secondly, I would object and ask it be struck, although it's
difficult, and that's why my frustration today, this process has
not afforded my client due process because if I can't get up here
and object, when the bell is rung, it's difficult to unring it.
Mr. Passidomo testified that the 40-foot boat doesn't exist
anymore. That's not in the record to my recollection. I ask that
that be struck. Additionally, he keeps hammering on the staff
report. Let me read you some aspects of the expert staff report.
I query whether they really are in all due respect to staff.
Question and criteria raised in the staff report, at page 3 of
the staff report, the issues that need to be addressed. Question:
Whether or not the proposed dock is of minimal dimensions
necessary in order to adequately secure the moored vessel while
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February 13, 2001
providing reasonable access to the boat for routine maintenance
without the use of excessive deck area.
COMMISSIONER MAC'KIE: That's my question.
MR. PIRES: Well, in this particular question, interestingly,
they don't even address the depth issue. The answer is'. The
facility represents the minimum deck area needed to adequately
secure and provide access to the vessels, which is also
interesting. I don't see any analysis in here in this particular
staff report with regards to the depth.
That particular criteria, 2.6.21.3.2, is not even addressed in
the staff report in this particular application. There are eight
questions asked. I believe there are ten criteria. One of them is
missing from the staff report. So right off the get-go, there is not
even an analysis about the depth. Secondly --
COMMISSIONER MAC'KIE: Excuse me, but that, Mr.
Passidomo, would be a big point for the appellant. If you're
telling me I don't have to even look for Mr. Scofield's testimony
about depth because the application is dispositive on the
question, the staff report is dispositive of the question of
compliance with depth, and now Mr. Pires has just read to us
from the application where the question of depth is ignored.
Where in the staff report then?
MR. PASSIDOMO.' Commissioner, this is another--
COMMISSIONER MAC'KIE: Because, I mean, that's my
question.
MR. PASSIDOMO: Sure.
COMMISSIONER MAC'KIE: I have substantial competent
evidence that they made -- they came to the right decision. So
show it to me.
MR. PASSIDOMO.' But we had respectfully submitted that
each and every one of the criteria -- and you've acknowledged
during the prior proceeding don't have to be met, don't have to be
met. What Mr. Pires, with all due respect, is suggesting is that
they do. You've already made a determination that they don't.
What we're saying is that your professional planning staff
makes a judgment, renders a staff report, makes
recommendations. Inherent in that, the courts will tell you is a
constitution of substantial competent evidence. They don't have
to show and prove adherence to every single line of that criteria.
COMMISSIONER MAC'KIE: But I'd like to hear their
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February 13, 2001
thoughts. Are there thoughts on that criteria in the record, either
-- either testimony at the Planning Commission or in the
application or in the staff report? Is there any testimony by
anybody on that question?
MR. PASSIDOMO: That's a great question. Let me respond
to it. I apologize for the delay, and I apologize for my own
inability to respond.
COMMISSIONER MAC'KIE: Mr. Pires, I apologize but, you
know, we're exactly on that question. Do you mind if we pause?
MR. PIRES: No, because it opens up another whole area
about criteria. I'll get into that in a second, if I have the
opportunity.
COMMISSIONER MAC'KIE: Okay.
MR. PASSIDOMO: If I could, biologist, Tim Hall, from Rocky
Scofield's firm. I'll quote.
MR. WEIGEL.' Is this from the record?
MR. PASSIDOMO.' This is from the record. My God, I'm not
going to quote from anything but the record.
COMMISSIONER MAC'KIE: Give us a page if you've got it.
MR. PASSIDOMO: I don't know that I have got the same
transcript that you've got.
COMMISSIONER MAC'KIE: That's all right.
MR. PASSIDOMO: It is page 95 from my record --
COMMISSIONER MAC'KIE: It doesn't matter. I'm sorry. Go
ahead.
MR. PASSIDOMO.' Thank you. Mr. Hall, the letter that we
got originally that had the docks altogether in one location would
have required some dredging, and the letter we got back said
that it was proposed. And it would recommend denial of it
because it did not minimize the impacts, both dredging and the
amount of coverage that was being proposed -- now, the
operative language.
COMMISSIONER MAC'KIE: It says there's a letter we got
back?
MR. PASSIDOMO.' This is the FDEP. I'm -- that was
introductory to, I think, what the operative language is. That is
my editorial comment. That's the only thing that's not in record.
Quote: The other thing that I noticed, everybody here keeps
talking about 60-foot docks. These are only 36-foot docks. The
extension is for 60 feet, and it's just to provide, as we said
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February 13, 2001
before, to get outside of the riprap and to get -- also allow for
those ramps to get down to the boats to where the boats and
boats themselves would be in adequate water and not to cause
prop dredging, a disturbance of the bottom while going in and
out.
COMMISSIONER MAC'KIE-- And that testimony was by
whom?
MR. PASSIDOMO: That was by biologist, Tim Hall.
COMMISSIONER MAC'KIE: At Turrell and Associates?
MR. PASSIDOMO: Yes.
MR. PIRES: I guess the query I have and continuing in the
same line with regards to the criteria, the code says the Planning
Commission shall base its decision for approval -- approval with
condition to denial on the following criteria. It doesn't say five of
the following criteria, eight of the following criteria, three of the
following criteria on the following criteria. I mean, you can't
exclude it. You need to look at them all.
The answers don't have to be yes or no for all of them. They
don't have to be yes for all or no for all. What I'm saying is, you
can't ignore them. The staff recommendation, therefore, the
Planning Commission's decision ignored the question that wasn't
even addressed by the staff whether to 2.6.21.3.2, whether or not
the water depth for the proposed dock facility is to be located is
sufficient to allow for the safe mooring of the vessel, thereby
necessitating the extensory question. It's not there.
The staff comments and analysis is at pages 3 and 4 of the
staff report, which in your agenda packet, if I may, is at pages --
oh, bad quality -- 135 and 136. So there wasn't even any
analysis. So the Planning Commission couldn't even make a
decision on that particular thing, so they did not consider their
basis decision upon that criteria.
Additionally, if you look at the staff comments, A and B, the
question was asked on the criteria, whether or not the proposed
docking facility and moored vessels in combination may have an
adverse impact to navigation? Quote -- staff-- according to the
petitioner, the facility would not impede navigation within the
waterway.
The next question in great depth about whether or not the
processed dock design exceeds a certain quality, et cetera, et
cetera, quote, according to the petitioner. So, I mean, you're not
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February 13, 2001
having -- you're having a rubber stamp by the staff. You're having
a rubber stamp by the Planning Commission arguably, an
argument by counsel, which say, you Board of County
Commissioners rubber stamp everything else, and the heck with
requiring -- making the petitioner abide by the criteria. Address
the criteria and have the staff analyze the criteria.
There was no testimony about depth of vessels. There was
testimony only as to the application as to length, nothing about
what was needed as to depth. The application again is deficient.
The staff report doesn't address the criteria. So we believe,
again, this application should have been denied, and that this
board has more than enough opportunity to say the Planning
Commission erred.
The Planning Commissions made an error. They did not
evaluate all of the criteria. The staff didn't evaluate all of the
criteria. They couldn't evaluate all of the criteria without this
information about the water depth, and I guess the question I
posed to the county attorney. I think the board has been
wrestling with it. Gee, how many items of the ten does the
Planning Commission have to get wrong before this board can
overturn?
Is it six? Is it five? If it four?. Is it none? All ten have to be
reversed? That, I would submit to you, is not the test. They
need to look at all of these. By saying that, you would then give
the direction to the Planning Commission that if an applicant
comes in, he doesn't show the water depth, he doesn't have a
boat, and he addresses nine of the criteria, he doesn't address
that at all and ignores it, he can still be granted the application
because, hey, nine out of ten, six out of ten, seven of out ten.
There's nothing in the code articulating that. I believe this
board has the ability to say they erred. They didn't follow this
criteria. They didn't apply it. Reverse the decision of the
Planning Commission. Deny the requested extension.
And, again, as to the dredging, it was unrebutted by B. J.
Boyer when she called DEP. She testified, I called DEP, talked to
Mark Miller. There was opportunity after that time for there to be
rebuttal by petitioner as to the testimony by B. J. Boyer when the
-- Mark Miller said that they could dredge it. It was not rebutted.
COMMISSIONER MAC'KIE: Well, there is --
MR. PASSIDOMO: And the question about dredging, it has to
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February 13, 2001
do with inside the canal also. The question -- I think I showed
you the prior sketches with regards to the public canal in that
area, and the DEP, as I understand it, based upon the
correspondence, was concerned about dredging inside the canal
where the other lots are, further to the north, not outside in the
lagoon. That's where there are much more shallow water
depths.
Again, we believe that in this particular case, the criteria
have not been met. The criteria have not even been analyzed in
all respects. So that was inappropriate, and, again, the view
issue has been -- as opposed to minimizing impact on view,
what's happened is, the impact -- the adverse impact to view,
which is substantial to the Griffiths and the Ferrells, has been
minimized.
It has been treated rather cavalierly by all involved. The
people who live there gave fact-based testimony. They can
testify as to what would happen. Basically, we will have no view.
Nothing mentioned about it. You saw the tape. You saw Mrs.
Griffith testify, with that steel look in her eye, unequivocal,
unconditional, honest. I have lived there 25 years. I will have no
view.
COMMISSIONER MAC'KIE: See, I know though that I can -- I
can balance that with -- if I went on the heart felt testimony of
every person who comes in here and says, if you do this, you're
going to ruin everything in my life -- you know, we hear that
sometimes, and we know they really feel that way. And I don't
question for a second that this person believes this is totally
going to blow their view, but I'm allowed to balance that with
more objective testimony about a floating dock. So that's not
dispositive of that question.
I think the best point you're making, though, Tony, is where
in the staff report, in the application, in the executive summary,
or in the testimony did we get testimony on these criteria, so I
can judge if they are substantial and competent? Because it
almost looks like that as to depths, the record is absent.
MR. PIRES: I submit to you once again I think this board has
the ability, and should -- I would like to request them to reverse
the decision.
CHAIRMAN CARTER: Okay. You have a rebuttal, Mr.
Passidomo.
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February 13, 2001
MR. PASSIDOMO: Thank you, Mr. Chairman. I'll keep it brief.
We respectfully suggest the record is not absent. The record is
what we just read from the record, pages 95 and 96. That there
was testimony from the biologist as to water depths.
Let me go on -- the very next page -- Mr. Scofield. I'd like to
add -- and I'll be brief, Mr. Chairman. I would like to add, the
thing is we would probably worry to put fixed docks in here. I
heard them say the Chateau Vanderbilt next door, they have got
docks out 25 feet and some of the docks sticking up further, and
there's lifts on there.
Were we to go in and put in perpendicular docks like that,
we would have to go out about 40 feet. We have 10 feet
precluded from the riprap. If we started there and put in, let's
say, a 30-foot dock, which is a lot, out there with boat lifts, I
guarantee you that view would be much more impeded than what
is proposed here as a floating dock.
The fact is the Planning Commission didn't ignore anything.
They just didn't come to a conclusion that Mr. Pires likes, and
the fact is that isn't sufficient grounds for you not to find
substantial competent evidence. There was substantial
evidence. Not only the staff report, but the testimony and all of
the evidence submitted constitute a good reason for the Planning
Commission to do what they did. That is the only question, with
all due respect, in front of the commission today. Thank you, Mr.
Chairman.
CHAIRMAN CARTER: You're welcome. Discussion among
the board?
COMMISSIONER HENNING: Mr. Chairman, I have the -- the
Planning Commission knocked down the size or the -- how far it
can protrude out by, I think it was, 8 feet, and Tony is correct
when he said that the 40-foot boat wasn't removed from the
petition. So where I'm having a quandary is, the boat won't fit
the dock any more. So should we deny it or go along with Tony
because of the reason the boat won't fit the dock any more and
the Planning Commission shorten the dock?
COMMISSIONER MAC'KIE: No, because the Planning
Commission changed the first one, too. They modify them all the
time. That's within their authority to do.
CHAIRMAN CARTER: If they modify it, I would guess,
Commissioner, then you would have to be able to put a boat in
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February 13, 2001
there that would fit the docks.
COMMISSIONER MAC'KIE: That fits.
CHAIRMAN CARTER: I understand that.
COMMISSIONER MAC'KIE: It's the ipso facto. If they modify
it, the 40 is gone.
CHAIRMAN CARTER: I would still like to go back to prior
testimony. If the water depth all away along that area is
relatively the same and there are docks that are in there that are
shorter than meets the criteria, I'm struggling with why wasn't
there a discussion of water depth as a part of this record?
Because I think that is a criteria, as I understand it, and would
wonder why we didn't address all criteria, meaning "we" the
Planning Council?
I'm not on the Planning Council, but why didn't the Planning
Council address the criteria totally and tell me, we addressed
this issue and not give me a statement that it wasn't sufficient.
It wasn't sufficient because. Then I would have a basis, as a
judge, to understand that. I don't see all of that here, unless I'm
missing something. That's where I am.
COMMISSIONER COLETTA: I would like to point out that
we're looking at this thing here, the Planning Commission, as far
as what their decision was based upon at that point in time. If
you look through this, there is adverse impact to navigation
within an adjacent channel. Very interpretive. In order to ensure
reasonable waterway width -- very interpretive. Through this -- it
goes on and on and on.
Such conditions may include but shall not be limited to.
We're asking -- we have to make a judgment decision based upon
what other people have already made a judgment decision based
on. I think that all of the criteria they were looking at at the time
have been met.
COMMISSIONER MAC'KIE: I think like where you're going,
Commissioner, if I were on the Planning Commission, do I wish
that I had the final decision-making authority? I wish I were the
trier of fact here because I think I would probably find some
different facts.
COMMISSIONER COLETTA: I would, too.
COMMISSIONER MAC'KIE: But I'm not, and so I think I'm
constrained in the law from --from overruling the Planning
Commission unless I can find something wrong in the record, you
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February 13, 2001
know, and I don't find that. So I'm going to make a motion to
deny the appeal.
COMMISSIONER COLETTA: I'll second that.
CHAIRMAN CARTER: Discussion?
COMMISSIONER HENNING: Discussion. Thank you. Also
Tony pointed out that staff, during the review of the petition and
two criteria, A and B, according to the petition -- petitioner that it
fits this criteria in two different cases. So I have a little bit of a
problem with that, that did we --
COMMISSIONER MAC'KIE: We staff you mean?
COMMISSIONER HENNING: Yes, we, the staff, did not do our
job by going out and testing whether, you know, it's a depth
problem or two different criteria, which is here in A and B.
CHAIRMAN CARTER: Commissioner, I agree with you, and
that's why I can't support the motion because I am not
comfortable that we met all of the criteria and that we did
everything we could to answer those questions. The Planning
Council. I kept saying we. We didn't have anything to do with it.
The Planning Council. So, therefore, I can't support the motion.
COMMISSIONER FIALA: I'm sorry, but I -- excuse me, Pam. I
feel the same way. I cannot support it for two reasons, and that
was the view and also the safety in that area. I don't know if the
Planning Council actually was -- had an opportunity to go out and
actually see what it would look like, and then on the pictures, I
don't think it shows what you can actually see when you're in the
area. I was fortunate enough to be able to do that, and so I --
COMMISSIONER MAC'KIE: That's exactly what you can't do,
respectfully. I think that's exactly what we are not allowed to
do, and I wish we could.
COMMISSIONER FIALA: Well, I -- but I disagree with their
decision.
COMMISSIONER MAC'KIE: I do too, but --
COMMISSIONER FIALA: I don't think they met the
standards.
COMMISSIONER COLETTA: We're talking political, political
against what we're supposed to be doing here today. If I had to
listen to the whole case -- and I've seen all the tapes and I've
seen what happened in the previous meeting. On a political --
politically motivated, I probably would want to be different. I'm
asked to just find on the particular -- on the Planning
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February 13, 2001
Commission's decision alone and not a political thing.
COMMISSIONER FIALA: I don't think it is a political thing. I
don't think that they met the standards of what it says in the
code.
COMMISSIONER COLETTA: See, I disagree by their
interpretation at that time.
CHAIRMAN CARTER: Well, that's what judges can do. They
can agree or disagree, and --
COMMISSIONER HENNING: Voters did it not too long ago.
CHAIRMAN CARTER: So I'm going to call a motion. All in
favor, signify by saying aye.
COMMISSIONER MAC'KIE:
COMMISSIONER COLETTA:
COMMISSIONER MAC'KIE:
Of the motion.
Of denying the appeal.
CHAIRMAN CARTER: The motion to deny.
COMMISSIONER COLETTA: Aye.
COMMISSIONER MAC'KIE: Aye.
CHAIRMAN CARTER: All opposed by the same sign. Aye.
That motion doesn't fly. Okay. Help me with the words that
would take it the other way. It would be --
COMMISSIONER MAC'KIE: Motion to grant the appeal.
COMMISSIONER HENNING: Motion to grant the appeal.
CHAIRMAN CARTER: I make a motion that we grant the
appeal.
COMMISSIONER HENNING: I'll second it.
CHAIRMAN CARTER: All in favor signify by saying aye.
Opposed?
CHAIRMAN MAC'KIE: Aye.
CHAIRMAN CARTER: Motion carries 3-2.
COMMISSIONER COLETTA: Excuse me.
MR. WEIGEL: Mr. Chairman, one last thing, at the start, Mr.
Pires got started quickly, and we had a commissioner back and
forth. So officially to close this record, and I would like this on
this record, that any disclosure, ex parte disclosures that you
may have -- I didn't want to start it with people out of the room
and then have people coming back into the room. So you are all
here, and if you could do it, that would be wonderful.
COMMISSIONER MAC'KIE: My disclosure for this matter is
identical to the disclosure for the previous matter.
COMMISSIONER FIALA: Same with me.
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February 13, 2001
CHAIRMAN CARTER: Same with me.
COMMISSIONER HENNING: Yes, and I have it all in the file
here.
CHAIRMAN CARTER: Everybody is similar. Is that sufficient,
Mr. Weigel? Everybody has it on -- is the same as before.
Whatever is in that record went through the same process this
time. We heard from both sides. We've met with neighbors. I
visited sites, E-mails, letters, phone calls, et cetera. It's all part
of the file.
MS. STUDENT: Mr. Chairman, I need to put just a couple of
things on the record. The authority of the Planning Commission
was called into question for these matters. Clearly, the Planning
Commission has authority under the boat dock extension
provisions of the code to hear a boat dock extension request,
and since that was put in issue, I need to put that on the record.
And the same concerns apply as to the public as it did in
previous hearing because they became parties and so forth and
due process issues to the applicant, and that that was designed
for administrative appeals of administrative decision. Thank you.
CHAIRMAN CARTER: Thank you. All right. Now, we are
going to take just five minutes to stretch before we come to the
next item on the agenda. It's time certain at 1:00 o'clock. We
apologize. We're running a little late, but you need to give us
about ten minutes, so that we are not accused of not being
present when words of wisdom are being spoken. We're going to
take ten.
(Whereupon, a recess was taken.) * * *
Item #10G
DISCUSSION REGARDING A PREVIOUS BOARD DIRECTION TO
SUBMIT A JOINT APPLICATION FOR A BEACH FACILITY AT
BAREFOOT BEACH PRESERVE - SUPPORT FROM NOVEMBER
MEETING WITHDRAWN; STAFF TO COME BACK IN 60 DAYS WITH
OPTIONS FOR PRESERVATION AND/OR ACQUISITION OF
PROPERTY
CHAIRMAN CARTER: Back in session. Gee, we're only 20
minutes behind schedule today, and the Commissioners haven't
even had a chance to eat yet. All right. When we finish this, we
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February 13, 2001
will be taking a lunch break because we have GOT several other
items on the Agenda that will require a certain amount of
discussion, and we want to be bright and energized to do that,
although some people will challenge us on that.
We are moving to Item 10C, and that is a discussion
regarding a previous board direction submitted joint application
for a beach facility at Barefoot Beach Preserve, and this has
been requested by both Commissioner Mac'Kie and myself and I
believe Commissioner Henning also was on that list. And before
we enter into that discussion, I passed out to the board
considerations. Thank you. I have more paper up here than I
need to deal with.
Here's -- here's where are discussion is going to go or I'm
going to propose to the board that it goes. Number 1, reflecting
back to our commitment and understanding of our November
14th, 2000 decision, which today only two commissioners here
were involved in that, three new ones were not, it was promised
on no easement access issues which are now very problematic.
The attorney general's questions and the county attorney's
review questions.
The county -- Number 2, the county had absolutely no ability
to obtain a written copy of the lease or contractual
arrangements between Mr. Harvey with the underlying owner.
Number 3, a disagreement of the county's requirements with the
county's land management plan for Lely Barefoot Beach, which
negates our agreement on joint permitting. This will necessitate
our withdrawal from the agreement in which petitioner, Mr.
Harvey again because it becomes a land management issue of
which it would require changes in our plan to do so.
Number 4, the Board of County Commissioners, in my
judgment, needs to direct staff and the county attorney to
investigate a process with the state towards the purchase of the
subject property on Lely Barefoot Beach Preserve and all of the
appropriate interest involved, and I am going to suggest to the
board the staff would get back to us in 60 days on the progress.
So I know many of you are here this afternoon to speak to us
on the issue. We certainly don't want to take your valuable time
and keep you here if you feel that what I am stating and the
board gets in -- has an agreement on this, and I know many of
you signed up to speak, which is fine. But this is the direction
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February 13, 2001
we're going, and I think this is what the community is asking and
has been requesting us to do.
So those were my opening comments to the board, which
every member has a copy of.
COMMISSIONER MAC'KIE: Could I follow up with that?
CHAIRMAN CARTER: Sure.
COMMISSIONER MAC'KIE: I -- as you said, I was on the
board when we agreed to go along with Mr. Harvey to be joint
applicants with him in this process, and I need to say my
analysis is a little more simple. And that is, I based it on two
things. I based my agreement to support his application on two
things. One is that the access to the area, to that beach, that
that is an under utilized beach, particularly by Collier County
residents, and that the access needed to be improved.
I still think the access needs to be improved. I think the
way to improve it -- and I don't think everybody in the room is
going to like this -- but I think the way to improve it is to get rid
of the gate at the guardhouse that makes us feel -- I know. I
know you disagree with me about that, but I'm entitled to my
opinion, too. Let's be nice.
CHAIRMAN CARTER: Ladies and Gentlemen, we're not going
to have any cat calls or any of that kind of stuff here as long as I
chair this board. I will clear the room, believe me.
COMMISSIONER MAC'KIE: When I -- when I drive down there
and I get to the point -- I think we can improve our -- the county
could do a better job. We could improve our directional signage
to the park. But when I get there and am about to turn left to
turn in, I see the guardhouse, and I think, wait, am I at the right
place? And I think -- I know better. I know I'm at the right place.
So I wonder if others might have that same hesitation, and if
that might be a factor in the under utilization of that beach.
I know that the county is working on that. I know we've
been working on it. But that is how we can improve the access
to that under utilized beach in my opinion. So that negates
Factor Number I for me. Factor Number 2 was what I was
calling black mail, but what somebody more creative than I
called green mail, and that is, if you don't let me build this, I have
the right to build a house with an asphalt road to the house.
The house might not be the end of the world, but an asphalt
road would be, literally, the end of that little beach area. I mean,
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February 13, 2001
it would destroy the whole system. So that -- I guess you can say
I was ready to submit to green mail, and say, well, okay, then,
let's go along with something that's public access because in
that I get no asphalt road.
It has recently, through the good graces of the attorney
general's office, come to our attention that there may not
actually be an easement continuous there, so that that threat is
not a real threat. I have to say I know that the county attorney's
office is working on this and is going to keep us abreast --
apprised as we go along, but I'm disappointed that -- frankly, I
mean, I'm just embarrassed. As a lawyer, I should have known to
say, where's the agreement? What does it say?
And I forget to be my own lawyer sometimes because I have
a lawyer, and I count on you guys for that. And I'm disappointed
that you didn't -- that you let us go so far as to be partnering with
a guy when we haven't even seen -- all we've got is his word that
he even has an agreement. We don't even know if he has
anything. We can't see it. You know, that's troubling.
But, nevertheless, even if I could see it today, even if I could
see whatever his lease option rights are, I don't have to -- I don't
have to get into the green mail, and I think there are better ways
to improve the access to that beach. So I'd like to withdraw my
support and would ask the board to withdraw its support from
that joint application. And I would support Commissioner
Carter's request that we investigate how to obtain control of that
property.
We have got to also be respectful of the fact we have a
letter today from the owner, and I'm sure it will be a part of the
record as she requested. But, you know, this is somebody who
did not get good treatment from government and is not the least
bit interested in selling that piece of land, and it's not her fault.
It's not the five of our fault, but it's the government's fault and
we're sitting up here as government today. So it's our fault. So
we're sorry.
I would like to -- and I think everybody in the board would
join me in publicly apologizing to the property owner for how she
has been treated in the past by state and even county
government. We could have done a whole lot better job with her
if we had worked with her, if we had worked together with her,
and we didn't do that in the past but I hope that we can do it
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February 13, 2001
now,
CHAIRMAN CARTER: You know, I concur with that,
Commissioner Mac'Kie, and I can't be responsible for what
happened in the past. All I can say is we're working today and
we're working for the future. And I would hope that the owner
might reconsider.
That if she could sit with us -- and I think we are reasonable
people -- that we would like to engage in discussion through this
matter, and there are, you know, a number of ways we can an
approach it. But that, I think, is yet to be known.
All we can do is take the course of action that would assure
the public and everyone else that, you know, we want to
withdraw and we want to find a way to acquire this piece of
beach and put it together, so that it is a preserve.
COMMISSIONER MAC'KIE: You know, the only --
CHAIRMAN CARTER: You know, the state of Florida -- we
wanted to take it, but the state of Florida by eminent domain will
not do this. We know this already. This not something high on
their agenda, and they're very reluctant to do that kind of thing.
And I have spoken with people in Tallahassee who are very
close to that process, and they said, Commissioner, it's really
going to be up to you and your board to either exercise it as a
county or to work with a process and a number of funds that are
available through various agencies in the state of Florida to try
to do what we call a willing purchase. So that's kind of where
we are in what our options are.
COMMISSIONER MAC'KIE: But just, you know, to follow on
that, we need to -- I would hope that we could start anew with
the property owner.
CHAIRMAN CARTER: I certainly would like to do that.
COMMISSIONER MAC'KIE: I have put my copy of her letter
back on my desk for a response, but one of the things that it said
that I respected so much is that she had wanted a good use of
this property that allowed for it's utilization by the most people
possible. Donna, you've got it there. COMMISSIONER FIALA'- Yes.
COMMISSIONER MAC'KIE: Read that or if I may borrow it.
COMMISSIONER FIALA: Certainly.
CHAIRMAN CARTER: Commissioner, I haven't seen that yet.
COMMISSIONER MAC'KIE.' I just appreciated so much where
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February 13, 2001
she said, the proposed project, which was confirmed by the
Collier County Commissioners, would be a win-win situation for
all concerned -- nope, that's not it.
I'm going to read the whole letter into the record because I
think she's the property owner we're talking about and everybody
out here. May I, Mr. Chairman?
CHAIRMAN CARTER: Be my guest.
COMMISSIONER MAC'KIE: Collier County Commissioners:
As owner of private property on Barefoot Beach, I expect the
Collier County Commission to honor their commitment to Paul
Harvey. My husband and I lived in a mobile home for almost 20
years on Barefoot Beach when the entire three miles was
pristine, before the million dollar high-rises and four-story homes
were built.
This whole property was available for purchase in 1967, and
the state was not interested. The developers destroyed birds'
nests, nesting sites, and bulldozed the entire area where the
majority of people now objecting to the proposed project are now
living. Where were your voices then?
And we could talk about that because I would love to tell
you where I was in 1967. It wasn't here. I was 9, 117
COMMISSIONER FIALA: Braggart.
COMMISSIONER MAC'KIE: After 12 years of constant,
stressful care of my Alzheimer impaired husband, terminating in
his recent death, I have -- this is the part -- I have finally found
someone who is desirous of utilizing this area for the good of all,
ferrying families through the back waterways, viewing birds and
native vegetation, and being able to enjoy a beautiful beach with
toilet facilities.
People are now using the park for this necessity. Trash
containers, trash is now being disposed of in the park and on my
property, and personnel to direct our beach lovers is for the good
of all.
That's what we all want. We agree on that point, Mrs.
Stouffer.
The traffic down the road leading to the south parking lot
with the accompanying debris being thrown from cars and trucks
will be minimized and also walking traffic on the beach in front of
these million dollars homes would be lessened.
The impact on my property will be no greater than the illegal
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February 13, 2001
crossing by vehicles, (state, county?) now being done with the
tearing down of both sides of my fence removing much pristine
vegetation in the process. The back of my property is mostly
Australian pines, nothing pristine about that.
The Wiggins Pass Park has built rangers' quarters in that
park. That is what they would do if they acquired my land, and
now the state and county would like to run their own ferries to
my property to access the beach, doing exactly what is proposed
by Mr. Harvey.
The processed project, which was confirmed by the Collier
County Commissioners, would be win-win situation for all
concerned. I hope those opposed will rethink their thoughts. My
hope is a mutual, positive outlook for all concerned. I maintain
my private, taxpaying citizens right to use and retain my
property.
I have had many offers over the years to sell this land. I
purchased this property in good faith to be used for my benefit
and am not desirous of selling to anyone.
These are my feelings. Please read and enter this letter into
the record.
Sincerely, Ricky Stouffer.
And the good leaders find places where opposing sides
agree, and she has clearly pointed out to us in this letter, a place
where we agree. And that is to make this land available for the
good of all for viewing the birds and native vegetation, enjoying a
beautiful beach. You know, she wants this property to be used
for the greater good, and we, as the government, have a big
hurdle to overcome to have her believe that we want to work
with her in that regard.
CHAIRMAN CARTER: The only way I know to do that,
Commissioner, is to start.
COMMISSIONER MAC'KIE: Amen.
CHAIRMAN CARTER: What's your approach?
COMMISSIONER MAC'KIE: So I agree we should start, and
hopefully she's even watching and she can hear that we
apologize for the behavior of our predecessors, and we want to
start fresh with her. We understand Mr. Harvey -- well, we
presume he truly does have some legal rights to that property,
although we haven't seen the documentation to that effect, and
those are rights for which he would have to be compensated.
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February 13, 2001
We're not going to try to be unfair to anybody, but I really
just wanted to use this opportunity to say specifically to her, to
Mrs. Stouffer, that we are sorry for the actions in the past, and
we would genuinely like to start fresh on the opportunity to meet
her goal of having this property used for the good of the whole
community.
COMMISSIONER FIALA: I would like to just add --
CHAIRMAN CARTER: Commissioner Fiala.
COMMISSIONER FIALA: If I may, the most wonderful thing
about walking this property and then canoeing around it was in
many preserves, they're preserved so much that none of us can
see it. Whereas, in this preserve, we can all walk on it, all enjoy
it, all canoe around it. It was the most wonderful thing of all. It's
there for everybody to enjoy.
COMMISSIONER HENNING: Mr. Chairman?
COMMISSIONER COLETTA: If I may.
CHAIRMAN CARTER: Commissioner Coletta and then
Commissioner Henning.
COMMISSIONER COLETTA: If I may also add to that, I would
like to compliment The Conservancy and the Wild Life Federation
for the campaign they put out there. It was really great when
you can see the community interacting with government. Two
hundred forty-seven phone calls and 140 E-mails. Good work.
CHAIRMAN CARTER: Commissioner Henning?
COMMISSIONER HENNING: Yes. I had the privilege of going
down there, and when do we take the process of preserving the
preserve? And I think that's what a lot of these people are here
for. And are we going to take a vote today on the decision that
was made in November on the agreement with Mr. Harvey?
COMMISSIONER MAC'KIE: I'd make a motion that we
withdraw our support for the application submitted by Mr.
Harvey. That we withdraw our support for the petition that we
originally heard in November, and that we urge staff to come
back -- did you say 60 days, Commissioner Carter?.
CHAIRMAN CARTER: Right. I'll give you the exact verbiage.
COMMISSIONER MAC'KIE: Sixty days that staff would come
back to us with options for acquisition of -- well, oppositions for
preservation of the property.
CHAIRMAN CARTER: I said it was direct staff and the
county attorney to investigate a process with the state towards
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February 13, 2001
the purchase of the subject property on Lely Barefoot Beach
Preserve and all of the appropriate interests involved.
COMMISSIONER MAC'KIE: I make my motion to that effect.
COMMISSIONER FIALA: And I'll second that.
CHAIRMAN CARTER: We have how many speakers, Mr.
Olliff?
MR. OLLIFF: We've got t3 registered speakers.
CHAIRMAN CARTER: Anybody want to talk us out of it?
COMMISSIONER MAC'KIE: Could I ask a question of the
public, tough?
CHAIRMAN CARTER: Sure.
COMMISSIONER MAC'KIE: If you're here and you want us to
acquire this property, you understand the only money we have to
spend is your money. We don't have -- there's not some pot of
money that's going to come from somebody else. It's probably
going to be county money.
Hopefully, we'll find some creative way to get a matching
grant out of the state or something, but if you agree that you
would like for us to spend your money to preserve the preserve,
would you raise your hand? I was hoping that's what I -- because
that's put your money where your mouth is.
CHAIRMAN CARTER: Right. Secondly, you know, I had a
young gentleman come into my office last week, very
enthusiastic, and he's a great fund raiser for all kinds of
charitable organizations. And this is the kind of stuff -- and he
doesn't it for money. He does it just because he loves to do it,
and he said, you know, we live in such a great county.
He said, I would like an opportunity where I could work with
citizens to raise money for any project that they could be
identified with, whether it was a section of roadway, whether it
was something in health care, whether it was a Lely Barefoot
Preserve.
And I just wonder how many out here would be willing to
work with somebody like that where we went out and we raised
money in the community? You can't raise enough to buy it all, but
at least it says, you know, we made an effort to do this, and we
would get in our pocketbooks and we'd write a check for this for
whatever you can afford, whether it's five, ten, 100, whatever
amount that you can do.
How many out here would really support that if we had a
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February 13, 2001
campaign to raise money for a preserve like that? That's a good
sign. I think we may have an assignment for Mr. Cody. He's
listening today. Very energetic young man and he wants to do
this kind of thing for the community. So I think if we did a
combination of these things, we could all win.
So the people are there we've got to go through, Tom. If
anyone wants to speak, fine. You want to talk us out of it, I don't
think you will, but let's go through and if anybody wants to
waive, we will allow them to do that.
MR. OLLIFF.' As the chairman indicated, I'll just call out the
names that I have on the speaker slips here, and if you choose
not to speak, just waive and let me know, and we'll move on to
the next speaker. The first person is Nancy Payton. Following
Nancy will by Ronnie Poplock. Then Nicole Ryan.
MS. PAYTON.' Very quick. Nancy Payton, Florida Wildlife
Federation. I've been having conversations with Mark Listen,
who is the DEP's environmental administrator, Forever Florida,
Florida Forever, however that goes.
CHAIRMAN CARTER: Let me reconstruct it.
MS. PAYTON.' And I asked him, I said, well~ how can Collier
County go about getting some assistance with purchasing this
parcel and be compensated or reimbursed because it sits in the
middle of state land? He said, there's a process, and this is how
you do it.
COMMISSIONER MAC'KIE: So staff listen up, whoever is in
charge of this. I'm looking at John figuring it's him. I don't
know. Leo?
CHAIRMAN CARTER: John will probably get -- John and Leo
would get the charge.
MS. PAYTON: It's very quick. An application needs to be
submitted before July 1st to the Acquisition and Restoration
Council. That's the state panel that makes decisions,
recommendations on state land acquisitions and purchases, and
that proposal should say Collier County is going to acquire this
out parcel. We're going to manage it as part of the Barefoot
Beach Preserve, and we're going come back to you for
compensation for buying this parcel that's within your state
preserve.
It's then -- the next step is that it has to be submitted by
July 1st, as I said, and then that ARC will make their decision by
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February 13, 2001
August and we would know by August how much and what sort
of state support there would be for investigating the acquisition
and the acquiring of this particular parcel. This is the process.
We're kind of on a deadline, but the 60 days --
CHAIRMAN CARTER: I think -- I think it's an important part
of the negotiation process with the appropriate people doing
that, so that we get all parties involved. So I think that's
excellent.
MS. PAYTON: I just wanted to make note of the July 1st
deadline, so that we can get going to get on that list, and I'm
competent that we will.
CHAIRMAN CARTER: While we're on the subject, though, I
would like the county attorney and the respective divisions to
work very closely on this. I don't want us to get downstream
with our backsides hanging out, folks. I want to make sure that
we know exactly what we're dealing with, and we have done a
thorough togetherness on this, I mean, the communications
between the divisions and work uniformly on this. I don't want
independent kind of stuff, and the right hand doesn't know what
the left hand is doing. That would be my request.
COMMISSIONER MAC'KIE: Tom is in charge of all of it.
CHAIRMAN CARTER: Right. Tom will make it happen.
COMMISSIONER COLETTA: Nancy, I want to thank you
personally for the wonderful job you did at bringing our --
MS. PAYTON: Thank you, but I have to share it with Friends
of Barefoot Beach, who many of them are represented here today
and The Conservancy for Florida Wildlife members and Collier
Audubon members. It was very wonderful working together. Also
the Citizens Association of Bonita Beach was very involved, and
so it was a wonderful way that various groups with different
interests came together.
And you saw the results. You heard the results for the past
three days. I suspect that this issue probably out -- exceeds or
comes close to the urban boundary issue. I hope that what
happens is that you realize that we're not just interested in the
out parcel in Barefoot Beach, but we're interested in having this
be the beginning of a campaign for many other special areas still
remaining unprotected in Collier County.
COMMISSIONER MAC'KIE.' Thank you.
CHAIRMAN CARTER: Next speaker, Tom? The next speaker
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February 13, 2001
is Dick Lydon. Following Mr. Lydon will be Robert Jenkins. Mr.
Chairman, I'm assuming that's direction for me to make sure our
backsides aren't hanging out?
COMMISSIONER MAC'KIE: Yes.
MR. LYDON: Dick Lydon for the record. I'm not going to try
and talk you out of it. I'd just like to give you one source to
consider for possible revenue.
COMMISSIONER MAC'KIE: Good.
MR. LYDON: We have bent and moved the TDC money 19
different directions. Let's not overlook that possibility. As long
as it's there and as long as those tourists keep coming and
paying it, let's look at that possibility. We've used TDC money for
things that were a lot less important. Thank you.
COMMISSIONER MAC'KIE: I just would say to follow up on
that, having looked at the statute and the ordinance, it would
take just a tiny little bit of legislative changes to allow Collier
County to pass a one cent tourist tax for acquisition of land.
CHAIRMAN CARTER: That would have to go through the
state legislature?
COMMISSIONER MAC'KIE: I think it might, but the lawyers
will give us that advice when we come back.
COMMISSIONER HENNING: I'm sure we could demonstrate
that this property is a definite tourist destination. CHAIRMAN CARTER: Next speaker?
MR. OLLIFF: The next speaker is Robert Jenkins.
CHAIRMAN CARTER: While he's coming up, I want to thank
publicly, Nancy (sic), our land use attorney in Tallahassee,
because she is the one who gave me tremendous amount of
guidance and direction how we could explore our options. You
ought to be grateful we have a person like that who is helping us,
believe me, really helping us on these issues. Yes, sir?
MR. JENKINS: Robert Jenkins for the record. I think your
backsides are already exposed from what happened November
14 for one thing, and taking away all of the emotions from this, I
think what happened has happened. So you can't back pedal,
and you can't do this. It's a land -- land use issue.
She has always expressed the desire that she doesn't want
to sell, and for us to say we're going to take your property
through eminent domain, I think is reverse of green mail. It's
black mail on the other way. So that's all I have to say.
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February 13, 2001
I think it's an access issue for the public here. I would like
to have a little boat going from Cocahatchee out to Barefoot
Beach. That's a great idea. That was marvelous. It was a
wonderful idea. I wrote an editorial complimenting you guys on
working together with Mr. Harvey, who is not a developer. He's
just a businessman, and that's what he wants to get done.
I love Barefoot Beach. I used to be a ranger out there from
'92 to '93. I was a park ranger at Barefoot Beach. I don't think
see where this is going to be that much of a hindrance to the
beach. It's going to be off the beach. It's going to be behind the
dune line, and it's going to offer you access of the unused park to
the people of Collier County. That's just another way to look at
it.
CHAIRMAN CARTER: And I appreciate those comments, sir,
and that does not preclude in the future that we won't have a
way to get to the beach, other ways, but first of all, we have to
have control of the whole preserve and then we have to have a
land management program that allows us to do certain things.
And at this point, our land management plan would not allow
us to do any more than what's allowed to come into the park at
the north end of the preserve. When all of those spaces are
filled, we can't let any more people on the beach according to
the interpretation of our current land management plan.
COMMISSIONER MAC'KIE: Which is the state.
MR. JENKINS: Because of the parking spaces but you could
put the Cocahatchee Park people there and bring them onto the
beach.
COMMISSIONER MAC'KIE: No, no.
MR. JENKINS: It's utilized like you said.
CHAIRMAN CARTER: No, not under -- we have to amend the
plan, but that's going to be all of the process that we go through
in the future. But first of all, we have to get control of it.
MR. JENKINS: Another thing, it says it's 1.69 acres. You
said it's the last stretch of unspoiled beach. How did it get that
far that we have 1.69 acres in Collier County that is left
unspoiled? How did it get that far?.
COMMISSIONER MAC'KIE: It's the last piece that's
unspoiled, unacquired in that area.
MR. JENKINS: Because if you walk from the Registry to the
Ritz, all the way up that way, how much land is available up
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February 13, 2001
there?
MR. HENNING: There's no utilities --
MR. JENKINS: Right, so.
COMMISSIONER HENNING: -- to the land.
MR. JENKINS: Well, there can't be. That would have to be
made available, so. I think it's just a land right issue, and I think
we're treading on dangerous -- it's going to get very, very
expensive to do it. So it's tax dollars. Thank you very much.
CHAIRMAN CARTER: Okay. Thank you. Next speaker,
please?
MR. OLLIFF: The next speaker is Susan Boggs and Alan
Boggs. I don't think they're here, but they did on their speaker
slip ask that we note they are both in firm support of retaining
the preserve.
The next speaker is Bill Turner.
MR. TURNER: Pass.
MR. OLLIFF: Followed by Marianne Sander, followed by
Victor Rosenberger.
MS. SANDER: I was here in November, and I'm glad to be
back. I'm a full-time resident of Collier County, and I am
president of the Friends of Barefoot Beach Preserve. Our
organization of over 400 members worked in the preserve for the
last ten years, creating exotics, constructing a nature trail,
building a learning center, creating gardens, conducting public
programs, contributing thousands of volunteer hours and dollars.
We've raised funds for this place and most of all coming to love
and care for this wonderful place.
We are heartened to be here today, hoping to see our efforts
to preserve the preserve come to fruition. We support a recision
of the November action, to join -- the action to join in the petition
for a private club. We support and effort to negotiate a
reasonable sale with Ricky Stouffer. We support joining with the
state to exercise eminent domain if that proves necessary.
We thank the commissioners who arranged time from their
busy schedules to tour the area. It is clear you have come to
appreciate this very special land. We thank the many citizens
who took time to call, write, and E-mail. My phone, I had 29 calls
one Saturday because they wanted to save a wonderful and
unique heritage.
We thank the other organizations who knew the importance
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February 13, 2001
of this pristine land and spoke out to recommend acquisition of
the parcel, such as The Conservancy, The Florida Wildlife
Federation, CAB, and the Audubon Society. May we all continue
to work together to enhance and preserve the preserve. Thank
you.
CHAIRMAN CARTER: Thank you.
MR. OLLIFF: The next victim is Victor Rosenberger,
followed by Tom Crow.
MR. ROSENBERGER: I basically was just going to discuss
briefly the cost that the developer, Harvey, was getting involved
in with the four million dollars and five million dollars and
whatever, and it made me a little concerned about Mrs. Stouffer,
if she was being taken advantage of or something. It's my
opinion that you can't double-dip the value of that property. You
can't have a 44 million dollar lease, land lease, and have her not
have anything.
So the value of the property is what the value of the
property is, and not the land lease plus the property. But at any
rate, the things that I have underlined here actually went into the
cost. Going back, there was negotiations with the state and our
former developer, and what happened, as you can see, that I had
underlined, we -- the developer put in all of the utilities, and the
agreement was that they could allow the county and then
ultimately the DNA to tap into these utilities.
So if there was a dispute with Mr. Harvey and the state and
the county didn't want to do anything, of course, Harvey, then,
the only way he could get the utilities down to his place would
be to run his own line down there, which would then be -- as to
value, would tend to lower the value of his project.
The thing that I was concerned about most was the big
private clubhouse he was going to put there, and this, to me, is
ridiculous because there is a private club that all of these people
can join right at the entrance to the preserve. So that's sort of a
ridiculous thing. You turn that into a saloon or something there.
This is something that I don't think the preserve warrants.
On the last page that I handed you was -- Harvey's acreage
was 1.69 acreage that he would -- assuming on this 40-year
lease, and it says that he floats the purchase price of about
four-and-a-half million dollars. This was in Jeff Lidel's column.
So, at any rate, that is a big price.
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February 13, 2001
Down at the bottom in the last two weeks, I cut out two real
estate ads for Keewaydin Island, and the one was two-and-a-half
acres and much more than Harvey has, and the asking price was
$875,000. The other ad, Keewaydin Island, was two and a third
acres, 150 foot on the beach, was a million seventy-five thousand
dollars.
So I just wanted to bring to the attention of the commission
that this value of four and five million dollars is way -- is totally
absurd. That I think the property could be purchased for much,
much less from these people, and that at the worst, you know,
tell them to build a house.
CHAIRMAN CARTER: Okay. Thank you, sir. Next speaker,
please.
MR. OLLIFF: The next speaker is Tom Crow.
MR. CROW: I'll pass.
MR. OLLIFF: Thank you. Followed by Marjorie Ward,
followed by Roger Dykstra, who is your last speaker.
MS. WARD: Good afternoon, Commissioners. For the record,
my name is Marjorie Ward. I'm the president of the Citizens
Association of Bonita Beach, CABB, which is a bi-county 501C3
non-profit association that works in both Collier and Lee County
with respect to beaches and our environment.
On behalf of our membership of over 1,700, we have
contacted each of you prior to this meeting by either letter or
phone. Since 1985, Barefoot Beach Preserve and its beautiful,
natural beaches have been one of our main concerns. We
worked towards both the state purchase and later the Collier
purchase of these properties. The state purchased their property
with Carl funds, which came from all of the people of Florida long
before Lely was even involved there.
We appreciate your comments today. Because what has
been proposed by Mr. Harvey for development of this 100 strip
piece of property owned by Mrs. Stouffer is totally unacceptable.
This is proposed, a commercial project, and has no business
being in the lands with preserve on both sides of it as you well
know. The land is one of the few spaces left in the west coast,
and it is in somewhat of a pristine state.
Whatever was voted in November must be overturned and,
boy, we sure appreciate what you're saying today. We urge you
to negotiate with the owner, Ricky Stouffer, and try to reach an
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February 13, 2001
agreement about the purchase of the land to save this for future
generations to be able to see what this coast looked like many
years ago.
If this is not possible, then you must look for eminent
domain because at all costs this land must be preserved. Among
others things, the water where the docks have been proposed
are part of outstanding Florida waters and should not be dredged
or polluted.
So on behalf of all of the people who either live or visit
Florida, we urge you to keep this area low key as a monument to
what we in Southwest Florida work for. Yes, let us preserve the
preserve. Thank you, not only for listening, but we really
appreciate your cooperation. Thank you.
CHAIRMAN CARTER: Thank you. The last speaker?.
MR. OLLIFF: The last registered speaker, Mr. Chairman, is
Roger Dykstra.
MR. DYKSTRA: Good afternoon, Commissioners. For the
record, my name is Roger Dykstra. I'm the co-chair of the
Conservation Committee for the Collier County Audubon Society,
and first of all, I would like to thank all of those people, both of
our own society, but all of the other organizations and concerned
citizens in letting their thoughts be known to yourselves.
Obviously -- we, obviously, did a good job when routing out
the troops both through that and through the E-mail message and
also in getting people here today. I would just like to also thank
you as commissioners for a very refreshing change of actually
listening to the citizens and going in the direction that citizens
obviously would like to take with regard to preserving this
preserve.
I also thank you for reading out the letter from Mrs. Stouffer,
and it seemed to me in listening to it -- and I would have to read
it all over again -- it sounded like that she had some very
frustrating times, and that she does, in fact, really want to see
this as a preserve. And I think maybe it's not a bad idea during
this 60-day period of looking at it and maybe having a summit,
not of the cost of thousands, just a few people.
Maybe I'd offer my services from our organization,
representatives of the commission, maybe some staff, and Mrs.
Stouffer to sit down and see if there is something that could be
done with her without going through the whole process and
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February 13, 2001
certainly not going through eminent domain. Thank you.
CHAIRMAN CARTER: Rodger, thank you. Commissioner
Mac'Kie?
COMMISSIONER MAC'KIE: There are two things I want to
say. One is we have to be careful, and I appreciate the last
speaker being respectful of Mrs. Stouffer. This is her property.
These are her property rights we are talking about. Nobody in
this room is talking about taking something away from her
without full and adequate compensation. If it were to come to
that, nobody is disrespecting her property rights, and I
acknowledge and I know the whole board acknowledges that she
owns this property and we want to work with her.
The other thing I want to say is that it's just not fair. I -- call
me naive if you want -- to say that Paul Harvey is some kind of
bad guy. He could have -- you know, if he has the rights to this
property that he reports to have, he could certainly be proposing
something a lot worse than something that allowed some public
access.
You know, I believe that Paul Harvey was in this for -- to
make some money and to do good for the community. I just don't
think it's fair to tar and feather him either, and most importantly,
I hope that what we're seeing here today is not the last, but the
kick-off of an acquisition program for preservation of green
space in this county.
This needs to be the first one, not the last one, and, you
know, all of you people who are energized with this, stay tuned
because, you know, you've identified this one piece of property
that so desperately needs to be preserved. I'll guarantee you
there are many others that need, likewise, to be preserved in this
county.
It can only be done constitutionally by paying for it, and
that's why we need some funding source. We would love it if it
could end up being the tourist tax, if it has to be property taxes,
if it has to be sales taxes. The community has got to make that
decision, but let this be the kick-off for preservation of green
space in this county.
CHAIRMAN CARTER: All right. We have a motion? We have
a second. All in favor signify -- Commissioner Henning?
COMMISSIONER HENNING: Do we have any disclosure on
this?
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February 13, 2001
CHAIRMAN CARTER: No.
COMMISSIONER MAC'KIE: No.
COMMISSIONER HENNING: Okay. Thank you. I just wanted
to clarify that. I'm sorry.
CHAIRMAN CARTER: We have a motion, and we have a
second. All in favor signify by saying aye.
Opposed by the same sign.
(No response.)
CHAIRMAN CARTER: Motion carries 5-0.
Thank you very much for being here, ladies and gentlemen.
The commission now will go in recess until 2:45, in which we will
get back to our agenda. Thank you.
(Recess taken.)
Item #8A3
PETITION ST-99-3, COASTAL ENGINEERING REPRESENTING
KEYSTONE HOMES, REQUESTING A SPECIAL TREATMENT
PERMIT TO ALLOW CONSTRUCTION OF RESIDENTIAL SINGLE
FAMILY LOTS, STREETS AND ASSOCIATES INFRASTRUCTURE
ON A PORTION OF THE PROPERTY WITH A SPECIAL TREATMENT
(ST} OVERLAY (ST PARCEL 23A), LOCATED WITHIN THE
PROPOSED LITTLE PALM ISLAND SUBDIVISION - CONTINUED
UNTIL THE FINAL PLAT IS TO BE HEARD
CHAIRMAN CARTER: We're back in session. The next item on
the agenda is on Community Development. That's item A3, ex
parte disclosure is to be provided by commissioners in regards to
petition ST-99-3, Coastal Engineering, representing Keystone
Homes, requesting a special treatment permit to allow
construction of residential single-family homes, et cetera.
COMMISSIONER MAC'KIE: It's difficult to think how to make
the ex parte discussion -- I mean disclosure on this -- because
there has been so much communication. But I have all of my
e-mail and phone messages and written communications are
available through my office.
I've met with the lawyers for the applicants, and I have
heard from many, many, many representatives of the community.
I don't think I have met with lawyers for the opposition. I don't
think there is one.
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February 13, 2001
CHAIRMAN CARTER: Yes.
COMMISSIONER MAC'KIE: There is?
CHAIRMAN CARTER: Tony Pires. Tony's been representing
them.
COMMISSIONER MAC'KIE-' Oh. Okay. Sorry. We met about
this didn't we, Tony?. I'm sorry. I am just getting befuddled. So,
yes, I have met with Tony Pires on behalf of the opposition, and
I've met with Mike Ciccarone and Perry Peeples on behalf of the
applicant.
CHAIRMAN CARTER: I have met with the Homeowner's
Association of Palm River on several occasions, with staff, with
Tony Pires, who represents the homeowners. I have met with
the petitioner, all the principals and their attorneys, and I have
e-mails, correspondence, phone messages, that are all available
for public record.
COMMISSIONER DONNA: I have also met with the people in
the community, taken a ride around the community, even saw
one of the tortoises -- but I didn't meet him personally -- and met
with the developer and his people and the attorneys and received
much mail.
COMMISSIONER COLETTA: Likewise, I'm sure. And I also
met with Nancy Payton from the Wildlife Federation and talked to
members of the Conservancy on this matter.
CHAIRMAN CARTER: Please note that Commissioner
Henning is absent -- here he comes.
We are on disclosures on Little Palm Isle.
COMMISSIONER HENNING: Mr. Chairman, I have
correspondence in a folder, also went out to the -- met with John
Belt, Tom Bartlett, Tom Wright on January 3rd at Palm River.
CHAIRMAN CARTER: All right. Everybody's disclosed. Let's
swear everybody in who's going to participate in this discussion.
THEREUPON:
All those wishing to speak on behalf of this issue, being first
duly sworn, testified as follows:
MR. REISCHL: Good afternoon, Commissioners. Fred
Reischl, Planning Services.
This is a request for approval of a special treatment
development permit. Special treatment overlays were put on the
zoning atlases in 1974, and what they did was from aerial photos
try to discern wetlands at the time, wetlands and other
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February 13, 2001
environmentally sensitive areas, but for the most part, wetlands.
In the case of this ST overlay, this is the boundary of the ST
overlay itself. What we do today, primarily through the rezoning
process of a PUD, but in this case through an ST development
permit, is to have the petitioner identify the actual jurisdictional
lines to the wetlands.
As you can see here, this is the jurisdictional lines of the
wetland. They do not exactly match the more rectangular shape
of the overlay that was put on in 1974, and speaking
approximately, it goes from 20 acres to 10 acres. The
jurisdictional wetland is actually 10 acres.
This -- it should also be noted that this ST petition has been
submitted in con]unction with a preliminary plat. You will hear
me say PSP. It's a preliminary plat. And the preliminary plat is
an administrative approval.
However, the planning services director has this on hold
pending the outcome of this ST hearing. So an administrative
approval is waiting for the outcome of this because there is an
ST overlay on a portion of this project.
COMMISSIONER MAC'KIE: I have some jurisdictional
questions, I guess, for Margie. Don't you love it when you hear
your name and you're doing something else? I'm sorry. MS. STUDENT: Yes, ma'am.
COMMISSIONER MAC'KIE: I understand that the jurisdiction
of the ST application is what's on the visualizer. And I
understand that the gopher tortoise management plan is
something that is done -- this is my question. Who's in charge of
compliance with the gopher tortoise management plan? If it's
part of the PSP, we don't do PSP's. Staff does those.
MS. STUDENT: I think, ultimately, if there's a violation, it
could become a code enforcement issue.
COMMISSIONER MAC'KIE: But if we look at the proposed
plan and say it does or doesn't meet our ordinance -- because if it
does, great; if it doesn't, I'm sorry -- is that my job, or is that
staff's job?
MS. STUDENT: Well, I think there is an issue because when
you look at the purpose and intent statement for the ST, it does
include a whole laundry list of things that the reason this comes
to you, things to protect. And it has a whole laundry list of
things, and it says, "Including, but not limited to."
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February 13, 2001
COMMISSIONER MAC'KIE: So I get authority of the tortoises
via the ST overlay?.
MS. STUDENT: I think you can make that argument for
purposes of this type of hearing. That's arguable under the
language of the purpose and intent for the ST permit.
I don't -- I think staff may have a differing view of it. And,
unfortunately, you can make that argument under that purpose
and intent.
COMMISSIONER MAC'KIE: Let me ask the question more --
in a different way. If a PSP comes in that has a gopher tortoise
management plan but doesn't involve ST overlay property, am I
going to look at that PSP? Staff's going to do that, all by
themselves.
Because we have outlined the parameters for gopher
tortoise preservation.
MS. STUDENT: Right. You have done that. What's
problematic is the language in the purpose and intent in the ST
permit section. I've looked at it and studied it and tried to
understand the background for it. I believe it's because we have
an ST area delineated on a map.
And then when the applicant comes in, it's ground truthed, if
you will, to look at what those areas really are to meet the
purpose and intent for the ST permit.
So before they proceed further, they need to come to the
EAC, the Planning Commission, and this Board to have those ST
parameters outlined. And that's the way I view it.
COMMISSIONER MAC'KIE: But ST -- again -- I just don't -- I'm
confused about why I'm being asked about compliance with the
gopher tortoise ordinance because I don't know. I don't -- there's
not some mathematical formula in there that tells me when
they've complied and when they haven't.
All I've got in front of me is an ST zoning and the question of
whether or not I agree they can impact those little orange parts
on the picture there.
The Environmental Advisory Council has told me that is a
beautiful plan for the ST portion of the property, so I'm happy to
go with it, but I know we just got the gopher tortoise ordinance.
Is it my job or is it your job?
MR. REISCHL: If I could just expand on Ms. Student's
answer. This hearing is for the ST development permit.
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February 13, 2001
However, there is a preliminary subdivision plat that --
COMMISSIONER MAC'KIE: But that's yours.
MR. REISCHL: -- is waiting for this approval. Correct. And
one of the conditions in that preliminary subdivision plat is that
they show me the gopher tortoise ordinance. The provisions of
the gopher tortoise ordinance --
COMMISSIONER MAC'KIE: Have they?
MR. REISCHL: Okay. The preliminary plat says that they
shall meet them upon approval -- before approval of the final plat.
So, they do not even have to meet that at preliminary plat
stage. However, when this comes back before you -- and most
plats come before you on consent agenda -- we have promised
the neighborhood that this one will not, but this will come back
before you again as a subdivision plat for your approval, review,
denial, whatever.
COMMISSIONER MAC'KIE: Because I want to be sure that
this project complies with the gopher tortoise protection
ordinance, but I'm not equipped to make that judgment. I need a
scientist, a biologist, a botanist to tell me if it does or doesn't.
And I guess what you're saying is, somebody else will make
that determination before the final plat, and then when the final
plat comes to us, you will tell us, we recommend approval
because it meets all of the conditions, including compliance with
the gopher tortoise ordinance, or you'll tell us, we recommend
denial because among other things it doesn't comply with the
gopher tortoise ordinance.
MR. REISCHL.' That's correct.
COMMISSIONER MAC'KIE: That's not today's discussion.
Today's discussion is the wetlands, the ST question.
COMMISSIONER HENNING: Why can't we ask to bring it
back all at once? Bring back the gopher tortoise plan and the ST
area?
MR. REISCHL: It's difficult because the ST area constrains
the design of the subdivision.
COMMISSIONER MAC'KIE: This ST -- this is a beautiful plan
as far as preservation of wetlands. So, as to the question of the
ST property, the Environmental Advisory Council -- I mean Ed
Carlson is the guy who moved for approval. You can't get much
better endorsement than that on the ST issues.
But I don't know about the turtle issues, and I'm in a difficult
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February 13, 2001
position being asked to judge that today. I don't know.
CHAIRMAN CARTER: We judged it in the past.
COMMISSIONER MAC'KIE: Tortoise compliance? That's the
point, Commissioners, we got all wrapped into that discussion
before, and I don't think we had authority over it before.
CHAIRMAN CARTER: According to legal counsel, we did.
But I'll go back to legal counsel.
MR. WEIGEL: Hi, there. It's a difficult question, and Ms.
Mac'kie has certainly focused on the issues that come before us.
What we see with the ST area is that it's more than just
water sensitive areas. ST is a little broader than that.
So, it's within that ambience that, as you look at the
appropriateness of the ST, may determine if there is, in fact,
appropriate habitat for gopher tortoise based on if you
circumscribe, or how large that ST area may be.
The ST area -- I expect, and staff will certainly assist me
here -- the ST area will include any gopher tortoise habitat that
may remain.
COMMISSIONER MAC'KIE: I don't think it does. I think it
only includes that yellow.
COMMISSIONER HENNING: The gopher tortoise habitat is
actually uplands.
COMMISSIONER MAC'KIE: And the yellow is there because
it was, at one point in time, wet.
MR. WEIGEL: I know that gopher tortoise are uplands, not
the wetlands, but I believe that ST typically goes beyond
wetlands and takes the other environmental animal habitat type
of considerations. Is that not true, Fred?
MR. REISCHL: Yes, that's --
COMMISSIONER MAC'KIE: What's the definition of ST land?
MR. REISCHL: Special treatment.
COMMISSIONER MAC'KIE: I know it stands for "Special
Treatment," but there must be a definition somewhere.
MR. REISCHL: I don't have it in front of me, but it includes
the terms like, "unique and special habitats and vegetation."
CHAIRMAN CARTER: Well, therefore, if it includes that, it
would include tortoise.
MR. REISCHL: Just to clarify, one more time. If the
petitioner came in for development of lands not including in that
ST, we would not have forwarded the petition to the EAC, the
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February 13, 2001
planning commission, and to you. If that helps to answer your
question.
COMMISSIONER MAC'KIE-' But there's one thing that's
broken, then, because EAC needs to see every tortoise
protection plan.
MR. REISCHL: I'm sorry, correct. The EAC would see it
because there was an environmental impact statement
associated with this, and so the EAC reviewed not just the ST,
but they also reviewed the preliminary plat and approved both.
CHAIRMAN CARTER: So they saw it all?
MR. REISCHL: Correct. As two separate petitions because
even though it's an administrative approval for a preliminary plat,
the environmental impact statement triggered the EAC hearing.
COMMISSIONER MAC'KIE: So did the EAC have a
recommendation on the gopher tortoise protection plan? MR. REISCHL: As approval.
COMMISSIONER MAC'KIE: They recommended approval?
MR. REISCHL: Approval on both. Oh, I'm sorry. No, they did
not. It was the majority voted for approval. It was four to one
and it was the county attorney's determination that they needed
a five votes in either direction in order to send a
recommendation so they did not send you any recommendation.
However, it was a four to one vote for approval.
How many people on that
COMMISSIONER COLETTA:
board?
MR. REISCHL: Nine.
COMMISSIONER MAC'KIE:
But the recommendation we
have about the ST overlay being a good one, then I'm stating that
wrong, because it was really a four to one vote. So there was no
recommendation on the ST?
MR. REISCHL: No recommendation on either; correct.
COMMISSIONER MAC'KIE: But am I correct that Ed Carlson
made the motion and the Audubon guy seconded the motion?
MR. REISCHL: That's correct.
COMMISSIONER MAC'KIE: So, I mean, as far as the
wetlands protection issues, it looked like a good plan. But, I sort
of feel frustrated here, you guys, that here's a problem. We're
being asked -- we're going to look -- we've already looked at this
once. We're going to look at it again today. We're going to look
at it again when they come in with the final plat.
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February 13, 2001
We're going to talk about turtles now three times --
CHAIRMAN CARTER: Not turtles, they're tortoises.
COMMISSIONER MAC'KIE: Tortoises. I'm sorry I'm so
ignorant. We're going to talk about tortoises --
CHAIRMAN CARTER: Tortoises don't swim, turtles do.
COMMISSIONER MAC'KIE: Three times we're going to talk
about those creatures. And I don't have a single bit of authority
over that question. Over whether or not -- it's a fact question. I
don't look and tell you whether or not they've complied with the
landscape code. I don't see if they've complied with the
setbacks. That's what staff does.
Did they or didn't they comply with the tortoise ordinance.
MR. WEIGEL: Commissioner, I think part of the question is
and the answer is not very far away. And that is, our concern
with the ST area that you contemplate before you today is, does
that include gopher tortoise habitat.
COMMISSIONER MAC'KIE: Not a bit. Not in that yellow
land. There is no tortoise habitat in that yellow land.
MR. WEIGEL: Okay. And that's fine. Whatever is the answer
and the fact, is the fact. But our concern is, I think generally, is
that based on the broad definition of ST, what it's supposed to
protect is if there's any gopher tortoise habitat in there that you
potentially might circumscribe or remove from the ST area that
you're reviewing today, that would be problematical.
And that's where, I think, you run into the limitation. And
this is how we can make the various provisions of the code
concerning gopher tortoise as well as the ST, work together.
Your review has an aspect of not removing gopher tortoise
habitat which has to be addressed within the ultimate
subdivision anyway.
COMMISSIONER MAC'KIE.' I hear you. I'm going to stop
saying this because we're going to spend more time talking
about it than we're going to spend doing it. But I think this is an
agenda management issue. I don't see why we have this on
today's agenda when we're going to have it again later with the
plat.
MR. WEIGEL: Let me ask you, how would the petitioner in
this particular case know how to divide the property for the final
plat for your approval until the ST issue is decided? It's just --
COMMISSIONER MAC'KIE: They propose a plat, just like
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February 13, 2001
they have right here.
MR. WEIGEL: The way I understand the ordinance, the board
has to decide on the ST petition in order for the developer to go
back and do his final plat work and do the engineering required
for that. If you want to change that, in terms of policy, we can
do that.
COMMISSIONER MAC'KIE: I will stop now.
CHAIRMAN CARTER: I think we understand the situation.
That's why you get to see it twice.
COMMISSIONER MAC'KIE: Three times, one more to come.
MR. REISCHL: Here's an aerial to give you a perspective
with Immokalee Road here and US 41 coming up this way. This
is Imperial Golf Estates, Collier's Reserve, Palm River Estates.
And this is the subject property, the vegetated area in the
middle.
This parcel is zoned RSF3. The preliminary subdivision plat
that's associated with it shows 141 lots and the wetland
preserve and then there's an isolated section of the property
north of an existing canal.
This is proposed gopher tortoise habitat that is adjacent to
gopher tortoise habitat on Collier's Reserve. And the petitioner
proposes free movement -- there would be a fence but high
enough so the tortoises could get under the fence which is really
no problem for the tortoises anyway since they burrow.
And the -- for a residential subdivision, the code requires 25
percent retained native vegetation. The wetland, as I said, is
approximately 10 acres of the total vegetation on-site. The 25
percent amounts to approximately 18.9 acres. So the other
retained vegetation has to be retained on-site.
The gopher tortoise ordinance that went into effect last
summer states that the petitioner cannot be held to more than
25 percent retained native vegetation, including gopher tortoise
habitat.
However, if the wetland does not take up that entire 25
percent and there is suitable gopher tortoise habitat on-site, then
to the maximum, that extra retained -- not extra, but up to the 25
percent -- that retained native vegetation should be suitable
gopher tortoise habitat.
Now, again, that suitable gopher tortoise habitat is not in
the ST area. However, I want you to be able to know all of the
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February 13, 2001
facts associated with this because we are doing an
administrative review as a preliminary plat also.
And I want to let you know I also have Stephen Lenberger,
who is an environmental specialist with our department, here to
answer any more technical questions than that.
COMMISSIONER MAC'KIE: I have a question for him. When
the staff reviews the PSP and has to make a determination about
-- assuming the ST question is settled, and now staff has to make
a determination based on the plan in front of us about whether or
not this comports with the gopher tortoise protection ordinance,
will it be your opinion that it does or does not comply?
MR. LINDBERGER: Well, the plan would comply if it had
off-site relocation.
COMMISSIONER MAC'KIE: So assuming off-site is a part of
it, it complies.
MR. LINDBERGER: That's correct.
MR. REISCHL: If I can step in, we had an opinion from the
county attorney. Even -- this project, as some of you know, was
the reason for the change of the gopher tortoise ordinance. At --
we sent a request for legal services to the county attorney
saying that because this ST petition had been submitted in 1999,
are they subject to the current gopher tortoise ordinance. And
the county attorney's answer was, yes, that the preliminary plat
is going to be subject to that.
Now, the preliminary plat that is on Mr. Mulhere's desk right
now says that it shall meet the conditions of the gopher tortoise
ordinance. And again, they're two separate reviews. The ST -- if
this ST is approved today, it does not change the fact that the
petitioner has to meet the gopher tortoise protection ordinance
which says it has to meet the greatest extent of the suitable
habitat on-site.
COMMISSIONER MAC'KIE: Which our expert has just said it
does.
MR. REISCHL: The plan that's before you is non -- habitat
that is proposed for revegetation and to make it suitable for
gopher tortoises. The plan that -- according to the new code, if
there is suitable habitat on-site, and there is additional suitable
habitat on-site, the greatest possible size of the gopher tortoise
preserve would have to be on suitable habitat, not recreated
habitat.
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February 13, 2001
COMMISSIONER MAC'KIE: So I should ask our question from
-- I don't know who to ask, if I should ask it again. Okay. I'll ask
Mr. Mulhere, you're the boss.
MR. MULHERE: I need to respond to Steve's comments
which I believe to be incorrect.
COMMISSIONER MAC'KIE: Okay. Because here's -- sorry,
Steve because I really did ambush you there. If the question is --
my question is, does it comply with the current regulations, the
applicable regulations?
MR. MULHERE: Right. And I have those right in front of me.
And basically what it says is you can relocate gopher tortoises
off-site if suitable habitat does not exist on-site.
COMMISSIONER MAC'KIE: See, that's stupid. Because you
wouldn't be relocating them if there wasn't a suitable habitat
on-site. It wouldn't be any there. They're there because there's
suitable habitat.
MR. MULHERE: In some occasions there's insufficient
on-site habitat to accommodate the number of gopher tortoises.
COMMISSIONER MAC'KIE: The current population?
MR. MULHERE: Correct.
COMMISSIONER MAC'KIE: That seems odd. That they
would live in a place where the habitat was unsuitable.
CHAIRMAN CARTER: Good point, Pam. Those are whacked
out tortoises.
I think what I understand what he's trying to tell me is that
on this site today, there is sufficient habitat for the existing
population.
MR. MULHERE: Correct.
CHAIRMAN CARTER: The question becomes how much of
that has to be retained or you move a portion of them off-site.
Because if I understand the ordinance, and I need clarification on
this, it can be a combination of. You can retain a certain
percentage of the population on-site and you can move a certain
percentage of the population off-site.
MR. MULHERE: That's correct. There's actually three
conditions. I didn't get to read the other ones. That's one. The
second condition is where the property owner meets the
minimum on-site native vegetation preservations of the code
with jurisdictional wetlands and does not provide appropriate
habitat for gopher tortoises as described above.
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February 13, 2001
COMMISSIONER MAC'KIE: And when that happens, what
happens?
MR. MULHERE: They may relocate some or all of them
off-site based on their management plan.
COMMISSIONER MAC'KIE: And you've got another one.
MR. MULHERE: The third one is where scientific data has
been presented to the community development environmental
services administrator or his designee and the environmental
professional opinion is rendered that the requirement to provide
the required on-site gopher tortoise habitat preservation area
will not be conducive to the long-term health of the on-site
population of tortoises.
And then that could be for a whole number of reasons. For
example, there might be a whole lot of traffic in the area or there
might be negative impacts as a result of the human or domestic
animal population. These types of things.
COMMISSIONER MAC'KIE: So, Bob, do the --
MR. MULHERE.' So there are three conditions, really
separate conditions, that's for, not and, where the applicant may
relocate some portion of the gopher tortoises off-site.
Now, our professional environmental staff has reviewed this
site and has found that there is adequate and appropriate habitat
on-site to retain the gopher tortoises on-site.
The question that we will have before us when we look at
the PSP will be whether or not the applicant feels that to retain
them on-site is such a burden that they can't accept that, then
they push the process further up.
COMMISSIONER MAC'KIE: What would happen in the case,
Mr. Weigel, is if we go through and approve the ST today and
then they go to Mr. Mulhere and ask him to approve the PSP, and
they don't like his staff's interpretation of how much gopher
tortoise habitat should be on-site versus off-site, then do they
appeal that to us? Where does it go after that.
MR. WEIGEL.' I believe that the code says that an appeal of
MS. STUDENT: I've just got to think a minute, and I guess
that they could --
MR. WEIGEL: Yes, the code states that an appeal of a PSP
goes to the Board of County Commissioners.
COMMISSIONER MAC'KIE: Okay.
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February t3, 200t
CHAIRMAN CARTER: Questions? Are you ready for the
petitioner?.
MR. OLLIFF: I think we are ready for the petitioner, Mr.
Chairman.
CHAIRMAN CARTER: If you wish to speak on in issue you
must sign up and give it to the county manager.
MR. Ciccarone: Mr. Chairman, Commissioners, good
afternoon. My name is Michael Ciccarone. I'm an attorney with
the Annis, Mitchell Law Firm. I believe you know my partners,
Tom Bartlett and Perry Peeples.
They're not able to handle this case today and so I'm
appearing in their stead on behalf of the applicant.
Let me begin by thanking each of you for taking the time
that you did take to speak with us over the last two weeks. That
was very helpful. We very much appreciate your doing it.
Let me apologize to Commissioner Fiala. We had told you
that we would send you a list of traffic issues because you asked
about it. In checking with Mr. Peeples, he tells me that he didn't
get to it, so I do apologize, but if that should be an issue today,
we will be happy to discuss it.
Commissioners, I'm not quite sure how to approach this
case today because it still isn't clear to me whether gopher
tortoises is an issue you want to deal with today. I will point out
that as I read the transcripts of prior proceedings, I find in the
transcript of the proceeding before the Environmental Advisory
Committee -- I'll just get that out because it's in your public
records.
As far back as September 6th, 2000, on page 6 of that
transcript, I find Barbara Burgeson with reference to whether
preserving the 3.80 acres which is the green area shown over on
this drawing on the board, whether that complies with the
gopher tortoise ordinance and relocating the others.
Her testimony is, yes, it does. And they're recommending
approval of the plan. It's literally in black and white, it's on page
6.
I find on page 43, that same transcript, Mr. Nino pointing
out, and I'll quote with respect to your new regulations, "They
are not at the point where thou shalt protect and preserve every
gopher tortoise that is on-site. We're not at that stage, and I
don't know that we'll ever get to that stage because we need to
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February 13, 2001
appreciate the balancing act that we're all going through with
preserving private property rights versus the rights of the
public."
'~Ne think there's a reasonable balance inherent in today's
regulations. And for that reason, we -- staff has recommended to
you that you indeed approve this plan because it is consistent
with the current provisions of the Growth Management Plan."
Now, when the commission took this matter up on
November 14th, only two of you were on the board at that time. I
find Mr. Lindberger, on page 25 of the transcript, in response to
Commissioner Mac'kie's question.
"Commissioner Mac'kie.' We recently adopted a gopher
tortoise protection ordinance in Collier County. Is there anything
-- are there any exceptions to that ordinance and what the
petitioner's proposing?"
"Mr. Lindberger: No. The petitioner's proposing to relocate
tortoises on-site as well as off-site."
"Commissioner Mac'kie: And they're in compliance with our
new regulation?"
"Mr. Lindberger: Yes, they are."
Now, you have to tell me, Commissioners, I mean, if this
matter's been resolved, I don't propose to take up the balance of
your afternoon discussing it. It's been a long day for you.
As I understand your staff's recommendations in two prior
public hearings with respect to the 3.8 acres which the current
plan proposes to preserve, they have consistently taken the
position that that satisfies the requirements of your gopher
tortoise ordinance. We agree with that.
The confusion came in, I believe, because at one point our
environmentalist, a good-hearted fellow, thought that those two
purple areas that you see up there could also serve as gopher
tortoise habitat. So even though the staff didn't require it, he
suggested that gopher tortoises be relocated there.
He will testify, if necessary, that that was rejected by the
Florida Fish and Wildlife Conservation Commission. They didn't
think that was a good idea, and so in consultation with your staff
about two weeks ago, the environmentalists said in effect don't
put gopher tortoises there.
The decision was made to continue to show those as
preserves as they are but not to have the gopher tortoises in
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February 13, 2001
those areas.
Yesterday, the Fish and Wildlife Commission issued a
relocation permit consistent with this plan.
If you want me to discuss gopher tortoises, I'll take as much
time as you want. It's not at all clear to me what the county's
position is. I would presume from what I heard that the staff is
telling you they will decide this administratively, and if we
disagree with them, then we can appeal that to you.
But I have the staff twice, under oath, on record, saying that
it complies with the regulations, so I would presume that they
would be consistent, and they would approve this plan if it's
brought back in, and if I'm correct, then I don't propose to revisit
the issue with you unless you want me to.
So I'm going to suggest that you guide me in this direction
because I want to do whatever you think is the public's business
here. But, again, I don't want to spend a lot of time talking about
something that you tell me later was a waste of your time. Tell
me how you wish to proceed and that's what we'll do.
CHAIRMAN CARTER: I know they're huddling over there,
and they may have another direction on this, but in the public's
interest, it is my job to preserve as much gopher tortoise area
on-site as possible, so I'm looking for the maximum amount that
you can preserve on-site. If it's a dual program of what you keep
there and what you transfer, that's what I'm looking for.
COMMISSIONER MAC'KIE: I agree. I want as much gopher
tortoise habitat preserved on-site as is physically possible. The
question is, are we the arbiter of that, or is staff the arbiter of
that? I think staff is, and then it gets appealed to us if the
petitioner doesn't like the PSP.
COMMISSIONER COLETTA: If I may, I agree with you, Pam.
But I've got a question. What is this in front of me?
MR. CICCARONE: That was the case we were going to have
to put on if we were, in fact, going to take up the gopher tortoise
case.
COMMISSIONER COLETTA: Is this something I'm supposed
to be considering today when I make a decision, is the
paperwork in front of me?
MR. CICCARONE: Those are mostly public records and the
answer is, yes, we would ask that --
COMMISSIONER COLETTA: Then I ask for a continuance
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February 13, 2001
because I am not going to have time to read this particular stack
of papers. And if handing it to me is supposed to indicate the
fact that I'm using this material to make a decision, then that
would be incorrect.
MR. CICCARONE.' Well, Commissioner, if the board wishes
to continue the case, by all means, but it would help us, if you do
continue it, to still provide guidance as to what it is you would
have us come back with you and discuss.
COMMISSIONER COLETTA: Maximum amount of land
possible for the habitat, I would say, plus furnishing us the
paperwork well in advance of the meeting.
MR. CICCARONE.' It's the board's pleasure. Just tell us how
you wish to proceed.
CHAIRMAN CARTER: There's been some huddling going on
over there. Is there additional information we need before we
can answer Commissioner Coletta's --
MR. REISCHL: I think just a clarification that what Mr.
Ciccarone states is correct on the record, that we stated that
preliminary plat that was presented to us, there was suitable
gopher tortoise habitat. Since that time, however, the Florida
Wildlife Commission has said that a couple of the areas are not
suitable habitat, and we deferred to their judgment on suitability
of habitat.
COMMISSIONER MAC'KIE: So when you said -- it sounded to
me like Mr. Ciccarone said that the staff opined that 3.8 acres
was enough. Was that not the staff's opinion at the time?
MR. REISCHL: I don't know when that was because this ST,
as I said, goes back to 1999. After last summer when the new
gopher tortoise regs went into effect the gopher tortoise
regulations say that, minus any wetlands, if you've got enough
gopher tortoise habitat on-site, that's where the 25 percent
comes from.
CHAIRMAN CARTER: But is the green down here 3.8 acres,
and you added in the additional areas, is what you were
originally thinking, which would have brought us to a total of
what? The purple -- which is seven, right?
COMMISSIONER MAC'KIE: Purple plus green is seven acres.
CHAIRMAN CARTER: If that's the case, I can understand
why you would have approved it, because that was on the basis
that you thought you had seven acres.
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February t3, 200t
COMMISSIONER MAC'KIE: That's why the question is, did
you think that 3.8 was enough or did you think. And you know,
we just look like Keystone Cops over here because we don't
know who's on first.
MR. WEIGEL: And Mr. Chairman, my suggestion to you this
afternoon is that we focus the board's decision today on the ST
overlay and those four lots. That ought to be the decision before
the board.
After that, we're talking about a preliminary site plan that
gets reviewed and opined and decided by the staff. And if the
petitioner's unhappy with that decision, you've already heard
what the appeal process for that is. And that is a separate issue
that deals with the gopher tortoises.
CHAIRMAN CARTER: And we could give staff our direction
on what our expectation is.
MR. WEIGEL: No, sir. I think that would be your decision
left, should that item come up under appeal, because your
position's already been made clear through the ordinance.
COMMISSIONER MAC'KIE: We passed that.
CHAIRMAN CARTER: I understand that. All right. So we go
to the ST which is only the four wetland lots that are in question.
We have to make that decision. The other goes backs to staff
review. Disagreement with staff, then they can appeal to us.
COMMISSIONER MAC'KIE: So could somebody just tell us
the total number of wetland acres impacted by the ST and the
total number preserved?
MR. CICCARONE: Yes, ma'am. According to the transcripts
before me, it's been indicated several times that within the 20.21
ST overlay, there are 10 acres of jurisdictional wetlands, all of
which except for .89 acres will be preserved and enhanced.
COMMISSIONER MAC'KIE: So rounded off you've got 10
acres of wetlands, you're preserving nine.
MR. CICCARONE: We're preserving slightly more than nine,
that's correct.
COMMISSIONER MAC'KIE: That sounds good.
MR. CICCARONE: And if, in fact, you're going to follow the
assistant county attorney's advise, then I don't know that we
need to take much of your time because I don't know that we
have any disagreement whatever with the staff or with the prior
boards that have reviewed this.
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February 13, 2001
The proposal is very straight forward. Permits have been
obtained from the Army Corps of Engineers and from the South
Florida Water Management District. If you want to hear our
environmentalist explain that process, he is here to do it. If you
don't think you need to hear that then we don't propose to take
up your time with it.
COMMISSIONER MAC'KIE: I think we'll only need to hear it if
you don't like what they tell you when you get your PSP approval
or disapproval.
MR. CICCARONE: Well, if the only question is the five lots in
the ST area, then I don't know that we have any disagreement at
all. We aren't asking for any thing more than that. And I think
the staff is saying that that's something they can recommend.
COMMISSIONER MAC'KIE: And you know, I'm going to take
this opportunity to say to whomever owns this property because
I know currently it's under a contract for purchase, that things
have changed in Collier County, and there may be a need to
relook at the value of the property based on the amount of
gopher tortoise protection that's required on-site. Because this
may not be enough, but that's up to staff. It's not up to me.
I'll get a shot at it, if you disagree with them and appeal it to
MR. CICCARONE: One other thing I'd like to say,
Commissioners, because I realize that although you're sitting
here in a quasi-judicial capacity, you're also an elected board.
And even though the county attorney has opined it, it's not
relevant to your decision today.
We had previously told you that as a result of a meeting
which Commissioner Carter hosted, which was very, very helpful,
we had significant discussions with the neighbors about traffic
conditions that we would voluntarily agree to make a part of this
ST overlay approval, even though we don't have to, as a
demonstration that we're trying to work with the residents and
also to fulfill Commissioner Carter's hopes that we make some
progress on the traffic area.
Because if you will look at the transcripts from previous
meetings, you will see that at least as much discussion was
devoted to that as to any environmental issue. And I know the
county attorney has tried to unlink those, but probably not very
successfully because they're still cropping up.
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February 13, 2001
We're prepared to tell you what those conditions would be,
and we're prepared to voluntarily ask that you make them a
condition of this approval, even though technically they don't
have anything to do with environmental issues.
CHAIRMAN CARTER: And I think it would be beneficial for
this board if you would read into the minutes what you're
agreements were out of that meeting. I have some notes from
that, but I would defer to listen to what you had to say. Then we
have public input if there's any disagreement.
Because that meeting, Commissioners, was very fruitful and
beneficial. And it really only got down to gopher tortoises, and
that's still up in the air.
COMMISSIONER MAC'KIE: But now we're going to switch
and talk about traffic. Is there some worry. I'm sorry to do it
again, but--
COMMISSIONER HENNING: I have a concern about the
traffic.
CHAIRMAN CARTER: A lot of traffic issues in there. And all
we're going to do is read into the record what they're willing to
do as a part of the ST process. They don't have to, but this is
what they agreed to do; if I am correct, counsel.
MR. CICCARONE: Yes. This is what we will volunteer to do
and if you want to make a condition, we won't object to it.
Let me say as a preliminary matter that we found out that
one issue that was raised but not resolved, was the weight
capacity of the bridges that would have to be crossed. I
understand Mr. Feder has determined that there is no weight
limit problem. So I don't think we have to address that.
With that in mind, and I think I am correctly summarizing
what we told you we would do. We would agree that the
developer would provide as much advance notice as possible to
the Palm River Homeowner's Association of development
activities and changes in construction scheduling. With the first
notice appearing a minimum to two weeks prior to the start of
site clearing and construction. The developer will act in good
faith to provide the residents with project related information in
a timely manner.
We also agreed that prospective bidders for infrastructure
improvements shall be notified in their bid packages of the
following special conditions and shall be contractually bound to
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February t3, 2001
comply with them for the duration of site improvement
construction. And those would be: One, project construction
traffic shall be scheduled so as to minimize inconvenience and
impact to the existing residents of Palm River. This may include
limiting construction traffic during certain hours or days.
Now, we propose to establish the specific criteria in
discussions between the residents and the developer prior to the
preparation of the bid request documents. The only restriction
we put on that is that the criteria cannot unreasonable delay
construction or substantially increase construction costs. And
we think based on our discussion with the residents that they
will operate in good faith, and that should not be a problem.
The other thing that we are willing to put in the bid
documents is that construction traffic shall be limited to those
specific routes that shall be agreed to by the county and the
developer in consultation with the Palm River Homeowner's
Association.
And I think the county indicated they would be amenable to
allowing us to place in the public right-of-way prior to the start of
construction, at our expense, signs forewarning the neighbors
that construction traffic might be utilizing these roads during
specific hours and days.
One thing that came up afterwards that we didn't discuss
but if the neighbors want it, at our cost, we'll install temporary
speed bumps where ever the county tells us to slow down the
truck traffic. We understand that the problem are the concrete
trucks, the dirt trucks, and if the residents want us to, we'll
undertake that expense.
We don't think they want them there permanently, but again,
if they want them there permanently, that's fine. We will install
them on a temporary base, and we will put them where ever the
county tells us to.
And I think, Commissioner, that probably covers about all
the areas we thought we needed to discuss.
If you have anything on your list that we overlooked, let me
know.
CHAIRMAN CARTER: Speed bumps or humps where local
residents don't knock the front-end alignment out. That's
certainly is one that I think with transportation in the
neighborhood, we could discuss.
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February 13, 200t
The other one that we discussed was if Palm River
establishes an MSTU, that the developer would commit your
units to that MSTU.
MR. CICCARONE: Yes. If you decide that you want to
create a special assessment district to widen the roads and
improve sidewalks, we will stipulate to joining in that petition
and being assessed for those charges even though we already
will have sidewalks and our roads will already have been
widened.
CHAIRMAN CARTER: What that says to the community is if
they go forward and present this to the community, you need 50
percent, plus one. And what you have on this basis is you have
141 doors already accounted for on your side if you decide to
pursue that.
I think that covers those issues that I remember from the
community, and according to my notes, we have done all that.
MR. CICCARONE: One thing that isn't in writing, but I think
it's understood is we exchanged information, if you will, and
established David Farmer as our liaison person. And I think
David is committed to maintaining regular communications with
the residents to make sure they know what is going on and to
the extent they have concerns that we can address, we'll try and
do that. So that we don't make construction any more difficult
than we know it will be.
Commissioners, that's probably all I need to say about it
unless you have questions.
COMMISSIONER MAC'KIE: I have one other staff question.
It's for you, David. And that is, I hope I haven't out smarted
myself here. If the petitioner is happy with the staff's
interpretation of the tortoise protection ordinance, but the
tortoise lovers are not happy, do they have an appeal
opportunity?.
MR. WEIGEL: No, I don't think so. I don't believe so.
However, there may be an ordinance situation where they may
file complaints regarding compliance. The staff ultimately, yes,
makes the call regarding the gopher tortoises. Fred, do you have
something to add?
MR. REISCHL: Those safeguards that would be at the time
of final plat.
COMMISSIONER MAC'KIE: So the public will have an
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February t3, 2001
opportunity to be heard on that question at final plat? MR. REISCHL: Correct.
COMMISSIONER MAC'KIE: I just didn't want to outsmart
myself.
CHAIRMAN CARTER: I would also say when we come to
final plat, that will not be a consent agenda item. That would be
one that would be on the regular agenda.
COMMISSIONER MAC'KIE: Unless everybody is happy.
MR. OLLIFF: We would hate to have missed an opportunity
to talk about this again.
COMMISSIONER MAC'KIE: A motion is inappropriate.
MR. OLLIFF: Just to clarify the stipulations that we're going
to put on this particular ST, although these are probably the most
unusual ST overlay related stipulations we may ever hear, in
creation of any roadway or lighting or sidewalk improvements, I
want to make sure the petitioner's agreeable not only to an
assessment district if we were to create such, but a municipal
service or taxing benefit unit as well. MR. CICCARONE: Yes.
MR. OLLIFF: With that, Mr. Chairman, I would suggest you
go to public speakers.
MR. CICCARONE: When we're through, if you would be so
kind as to hand that tremendous stack of paper back to me, I'll
relieve you of the burden of having to file it.
MR. OLLIFF: Mr. Chairman, the first speaker is Nancy
Payton, followed by Kathleen Avalone.
COMMISSIONER MAC'KIE: I don't see Ms. Payton.
MR. OLLIFF: Kathleen Avalone will be followed by Reeder
Miller, who I don't believe is here, as well. It would be Dick
Lydon, would be the next speaker.
CHAIRMAN CARTER: So if you're the next speaker, you need
to be in the on deck circle.
MS. AVALONE: My name is Kathleen Avalone, and I'm
cofounder of the Citizen's for the Protection of Animals in
southwest Florida. Since you're calling for preservation of green
space, number two on the list should be Little Palm Island.
According to the gopher tortoise experts, and I won't
mention them all like I did before, the recommended ratio is two
gopher tortoises to one acre of land. It's my understanding that
according to the ordinance, as long as there is adequate gopher
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February 13, 2001
tortoise habitat on-site, then the tortoises must be kept there.
The three acres is not adequate.
According to the permit issued by the Fish and Wildlife
Commission in Tallahassee, any species of animals found in the
burrows are to be relocated and released. However, no more
than one indigo snake or 10 each of Florida mice and gopher
frogs may be relocated.
Should additional specimens of those species or other
species listed as endangered, threatened, or special concern
being countered, the capture operation is to be suspended
immediately.
Will there be an impartial monitor to make sure these
stipulations are followed? There is still the problem of upper
respiratory disease -- transmission. This has not been
adequately addressed. Unless all of the gopher tortoises
involved in the move are tested, there is no way to protect
tortoises with the ones being relocated and those already on the
relocation site.
What is the postrelocation management plan for the
tortoises? A plan needs to be developed and reviewed.
Finally, I would like to ask two questions. First, is it
possible to use money that has been accumulated for mitigation
purposes from other projects to purchase this land as a gopher
tortoise preserve?
And second, I would like to ask Keystone Developers to
make a sincere reasonable effort to work with Mr. Mooney who is
with the Trust for Public Land and who's very interested in the
land and has previously spoken with Mr. Peeples about a
reasonable timeline.
I would like to ask them to come to some reasonable
agreement that will allow all the monies that have previously
been expended by them to be recovered and to afford a
satisfactory profit for the developer.
COMMISSIONER MAC'KIE: Could I ask you to stay tuned
because the tortoise question will continue to be up for discuss
until the plat is finally approved. And I value your judgment and
opinion, and hope that you will participate in that process, as
well. I know we are spending your time, but thank you.
MS. AVALONE: Is there any possibility about the mitigation
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February 13, 200t
monies? I mean, I just don't know. CHAIRMAN CARTER: I don't know either.
MR. OLLIFF: Generally speaking, we don't get mitigation in
terms of cash. We usually get mitigation in terms of off-site
additional wetlands, which are satisfied for public use.
COMMISSIONER MAC'KIE: Water Management District gets
cash.
MR. OLLIFF: Water Management District may get cash, but
generally, from the county side, we don't deal in a lot of cash
mitigation.
MS. AVALONE: But this would be preserved as gopher
tortoise habitat of which there is none.
CHAIRMAN CARTER: Well, there are places where there's
habitat, and they can be relocated. It's not like we don't have
any areas. But if you're speaking to this area, there is some
prime habitat.
MR. OLLIFF: And that's an issue that will be decided by the
staff administratively as they go through that PSP process.
MS. AVALONE: Thank you.
CHAIRMAN CARTER: Thank you.
MR. OLLIFF: As Mr. Lydon's coming I need to point out -- and
I will apologize on behalf of the staff for people who are here to
speak to the gopher tortoise issue, but I do need to make it clear
on the record that the issue in front of the board today is strictly
going to be the wetland ST overlay issue and those four to five
lots that are at question. And the gopher tortoise issue will be
set aside until it's administratively decided by the staff at the
site development plan process.
So if you do have gopher tortoise questions or issues or
statements, my suggestion to you would be that you postpone
and hold those until we come back with either the final plat or
should there be an appeal.
Following Dick Lydon will be Kevin Barnhill.
MR. LYDON: Dick Lydon, same shirt, different hat. Vice
Chairman of the property owners of North Naples. Our board met
last night and first, thank you, Tom, we do not have gopher
tortoise expertise among that board of directors.
Two things that we are concerned with. First of all, the
further consideration and discussion of the traffic and safety
factors involved in the development after completion. We're a
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February 13, 2001
little concerned about the widths of roads, some of the safety
factors in that connection.
Secondly, the clarification of the issue of roads being
maintained by the homeowners. An unusual thing in some of
these things. We want to be certain that the people who are
buying property in there are very well aware that they are taking
on the responsibility for maintenance of the roads so that it
doesn't wind up back in the lap of the county. Thank you.
CHAIRMAN CARTER: Thank you.
MR. OLLIFF: Kevin Barnhill will be followed by Ronnie
Poplock.
MR. BARNHILL: My name is Kevin Barnhill. I live on Cypress
Way East. First, I'd like to say Happy Valentine's Day in advance.
We may be here for that.
CHAIRMAN CARTER: Not if I have anything to do with it.
MR. BARNHILL: First page, just a little bit of brief on
Cypress stones. They're natural purifiers, small swamps with tall
cypress trees at the center. They act to eliminate waste and
carry the water. And they remove a lot of the harmful nutrients
of the surface water and things.
The next paragraph down, it talks about that it develops in a
depression in the ground and pine flatwoods ecosystems which
is exactly what we have here. The water in these ponds moves
very slowly and only drains internally through the water table.
Next page I have a picture from the golf course looking at
the cypress stone. This is at the cypress side. This is almost
exclusively cypress that you see on this side. As you can see,
it's very dry.
At a time when water is such an issue due to our long-term
drought, ever increasing water usage which includes, in this
case, the golf course. And the dry season that we are currently
in, we should be preserving areas that store and filter water.
Like the ST-23-A Cypress stone. Even in its temporary dry
state, as you walk through any part of the original 20-acre
ST-23-A, you feel the springiness of the thick peat under your
feet. Imagine the capacity of a 10 or 20-acre sponge in the
middle of Naples.
Cypress stones are superior to sandy soil for percolation
because they hold and filter water.
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February 13, 2001
I urge you to vote not for roofs, driveways, lawns, and well
pumps that will further deteriorate what's remaining of the
Cypress stone, instead, vote for a natural aquifer recharge
acreage.
I know we're only talking about one acre here, but if water is
an issue in Collier County, the public looks to you, the
commissioners, to lead by example in water conservation.
MR. OLLIFF: Next speaker is Ronnie Poplock, followed by
Erica Lynne.
MS. POPLOCK: My name is Ronnie Poplock. I'm from the
Collier County Audubon Society. I started out with comments,
now I have questions. I'm getting more confused.
But I do have one question, and I believe that this project --
and this would be a question to the staff -- I believe this project
still has wetland destruction mitigation credits given for exotics,
and isn't this clearly against the policy? I can't find anywhere
any writing where it would not be against the county policy to do
that.
MR. REISCHL: The county does not accept those credits.
Those are from the South Florida Water Management District.
We don't accept those as mitigation. They're two different
entities. The Water Management District does accept them,
Collier County does not.
MS. POPLOCK: I see. Thank you.
My other question -- this is a memorandum to Barbara
Burgeson from Patrick White. Did you all get a copy of that?
I guess my question is on the last paragraph, it talks about a
revised site development plan. And then it says, "Which would
alter the intent and purpose of the ST regulations."
If their habitat is being reduced from eight to three acres, it
says, "Arguably this would appear to require a rereview by staff
and another hearing before the Environmental Advisory Council."
I'm not clear on why this is not going back to the staff
review -- or is it -- and the Environmental Advisory Council. I'm
not clear on this last paragraph.
MR. REISCHL: It may have to, and again, I am trying to
make this as clear as I can. There are two different permits, the
ST permit is a separate permit. The preliminary plat is a
different approval. So there are two different approvals. If there
are changes, which there appear to be, then this will have to be
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February 13, 2001
reviewed again by staff.
That's why the petitioner had asked originally if the PSP
could be approved by the director with a condition that the ST be
approved. He said he preferred to wait until the hearing before
you to see if there were any further changes which may
necessitate a rereview of the preliminary plat.
COMMISSIONER MAC'KIE: The answer is it's just more of
the confusion about what's today's agenda.
MS. POPLOCK: Okay. So it's just a logistic issue then?
COMMISSIONER MAC'KIE: This has to do with turtles and,
therefore, will be rereviewed, if necessary. MS. POPLOCK: Okay. I understand.
Okay. I'll just make one comment. I know this is not gopher
tortoise time, but I'll just make a comment. Our office, the
Collier County Audubon Society, received a letter from Fish and
Wildlife stating that the respiratory check disease testing goes
into effect March 1st.
Well, just for the record, I'd like to say that Collier County
Audubon Society would say that unless these tortoises were
tested, then any relocation program without testing would be
totally unsatisfactory. There's just too much of a chance for
disease to be spread.
So I just want to throw that into the mix, even though this
might not be the time for it. Thank you. CHAIRMAN CARTER: Thank you.
MR. OLLIFF: Next speaker is Erica Lynne, followed by Beth
-- I believe it's Erpelding.
MS. Lynne: Hi. I'm Erica Lynne. I'm here today for Vera
Fitzgerald for the property owners of Naples Park.
The property owners is opposed to the wetlands -- allowing
any extra building in wetlands than would normally be allowed.
I'd also like to point out -- and I'm going to kind of bring the
gopher tortoises back in because we talked about this for about
an hour at the second district meeting last night, and it appears
this has already been before the EAC twice.
First they turned it down. The second time around they
approved it based on Mr. Carlson's recommendations, but he
agreed to it because those four-- he said you could put those
four houses in on the wetlands because they were going to be
adding more gopher tortoise habitat in the terms of the stuff just
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February 13, 2001
to the south of the wetlands and the area north of the property.
Now, that area has been determined not to be suitable for
gopher habitat, so I'm not sure you'd get the same opinion from
the EAC today.
COMMISSIONER MAC'KIE: Oh, oh. Big drastic news, as far
as I'm concerned.
MS. Lynne: This is -- I did not hear this personally, I have not
read the transcripts, but this was in the discussion last night at
the second district meeting.
COMMISSIONER MAC'KIE: So, would staff please be looking
at the transcript of the EAC and let us know if that was correct
while this next speaker's coming?
MS. LYNNE: I did have something else I was going to say,
and it just went "boom." Can't bring it back. Thank you.
MR. OLLIFF: Beth Erpelding, followed by John F. Belt.
MS. ERPELDING: My name is Beth Erpelding, and I'm a
resident of Palm River. I already nixed the turtles, so I just took
them off my list.
All proposed construction and residential traffic for Little
Palm Isle must go through Palm River Country Club Estates. The
streets in Palm River were built for residential traffic. These
streets were not built for large numbers of heavy trucks.
It will create a breakdown in the streets coming and going.
Responsibility of the road repair should not be Collier County
taxpayers, but to the developer. The roads are in good condition
at this time, thanks to Collier County street repair crews. We
really appreciate them.
The developer must provide Palm River with speed humps,
offer liability if a truck pulls off the road and crushes a drain pipe
in Palm River which could happen because of the narrow streets.
The developer must provide parking for all employees, no
parking on the streets of Palm River. A clean street wash must
be provided for all trucks. A certificate of insurance should be
provided to Palm River Homeowner's Association to assure
damage for any construction damage.
Trucks must not be washed out and putting concrete down
the drains. Palm River must be protected from the process of
developing Little Palm Isle if you approve this project. The
residents of Palm River are Collier County taxpayers and need to
be protected, too.
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February 13, 2001
The impact fees charged generally are used for
improvement of Collier County roads, schools, and bridges, not to
repair the devastation of streets used for construction traffic.
The taxpayers of Collier County should not be asked to subsidize
the developer of Little Palm Isle.
Palm River is an older community with very narrow streets
and bridges. There are no sidewalks, speed humps, bike paths,
or easements of foot traffic. There are large numbers of children
and many school buses in Palm River each day. Because of the
lack of space, they must wait in the street for their bus.
A bus is 10-foot wide, a gravel truck is 10-foot wide. The
street in Palm River is 18-foot wide. This makes for a dump truck
and school bus to pass impossible. This is a dangerous situation.
Please save our children.
MR. OLLIFF: Next speaker is John Belt, followed by Jane
Belt.
MR. BELT: Good afternoon, Commissioners. My name is
John Belt. I'm with the Palm River Homeowner's and I was at
that meeting that the attorney was talking about. I didn't know
that everything like that had been agreed to along the way. And
I would like very much to get a list of the things that they say
they agreed to because there was no real firm discussion that
this would their agreement along the way.
COMMISSIONER MAC'KIE: That will happen as a result of
today.
CHAIRMAN CARTER: John, it's been made a public record.
You will have that. It's a part of what's in front of us. So they
can't not do it.
MR. BELT: Thank you. And another thing is that they didn't
mention anything at all about their so-called agreement or
understanding that they've mentioned at prior meetings that this
road, even though it's a private road to be maintained by the
homeowners of the new development, that it is to be open to the
public at all times. And that would be part of any plat agreement
that was made and be available all the way through so they
could not be closed at a later time as a private community.
I'd like to go back and just say that the first and only
contact we had with the developer was back in about August or
September '99 when they came in, we met in the attorney's
office. We had our board members, we didn't have full board
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February 13, 2001
members, but we had board members.
And they showed us a lovely plat that had a gate on the
front and said, this is a plat of the property we're going to have.
We haven't laid it out yet, and the lots are blocked, but we're
going to have a nice private little development in here, and this
is going to be in Viking Way and out Viking Way.
That's what we've had. We've had no other contact until
last week with the developer, except at every official meeting
that we've had along the way.
And I think that somebody needs to clarify some of the
things that have come up, Ms. Mac'kie. If you remember -- I'm
sure that you have seen in there -- it's been discussed several
times, they originally had a plat, the first plat they came in
before us and we got it through the good courtesy of the staff --
which are very helpful along the way in furnishing information.
The developer never met with anybody from the homeowner's to
give us any of this planned information they planned to present.
They had a cjuster home and then part of the cjuster homes,
there was a road behind some of our lots. There was to be an
entertainment center right opposite our people that live there
now. And they also had this little wetlands up at the corner. And
they had five acres up at the top that they said, we're going to
relocate the tortoises in there.
The first time that came up before the commission meeting,
Mr. Carlson was very strong. He said, if you're going -- they had
also a plat plan to buy other lands and make it the tortoise
preserve location and eliminate all the tortoises. He said, give
them to me, I'll be glad to take them.
That went -- was defeated at the environmental commission
that was pleaded at the planning commission. Since that time
the gopher tortoise ordinance came into effect. They have come
in now with this plan which they haven't mentioned to any great
extent because they want you only to consider the wetland area.
At the time the development was first originated, was
cjuster homes. The staff had recommended that the five lots
that impacted the wetland up there not be approved. They said
that it was impacting the wetlands. They had gone from 20
acres down to t0 acres. It should not be approved.
That was the -- the plan was turned down because of that
part by Mr. Carlson and the environmentalists and the planning
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February 13, 2001
board.
After they came in with the second plan, the staff came in
and Ms. Burgeson said -- and told me directly, it's on the record
all the way down to environmentalists and otherwise. And I
think it's important to environmentalists -- is that they withdrew
their objection to the five lots in the wetland because they had
voluntarily added 3.8 acres of good tortoise/turtles preserve and
also about 7,500 acres which is now purple that they thought
might be considered good tortoise/turtle preserve, but they kept
the 3.8 acres up there on the other side of the land and showed
that as tortoise/turtle preserves.
Before the environmentalists at which Mr. Carlson said,
well, you're only impacting that 10 percent, I think that's fine.
He also was looking at the full eight acres for the tortoise/turtles,
and to say now that you're looking only at the wetlands and you
can't talk about tortoise/turtles, the two have been tied together
at environmental hearings, at the planning board meetings, and it
was before this board at the last time we met back in November.
For me to say that we can only talk about those five lots up
there is not an appropriate discussion along the way.
My time seems to be up. But I think that is important to find
out. That we are concerned about traffic. We've never been able
to talk much about traffic. We're concerned a little bit -- and all
due respect to your staff -- as to what the staff has agreed
because we've been told about a year and a half ago by a
member of the community development staff -- high up in the
organization, don't fight Little Palm Isle, it's already a done deal.
You can't win.
That bothered me.
MR. OLLIFF: Bothers me, too. Next speaker is Jane Belt,
followed by Anthony Pires.
MS. BELT: Good afternoon, Commissioners. I don't know
whether I can follow that or not. But I don't even know whether I
can talk to you about what I liked to talk to you about. At this
point in time after listening to all of the things that went on this
morning, I'm beginning to think I may be a little bit out of step.
I do appreciate -- and I do want people to know -- that I'm
very happy that we had the opportunity to sit down with
Commissioner Carter and with the people concerning this Little
Palm Island property.
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February 13, 2001
We still have problems. We still think in our minds that we
can't handle the traffic going in and out only one-way. That is
something that it may not be conducive that I talk about it at this
time, but that is something that is so important.
We have too many children, and I called again to see how
many children. We've had I don't know how many houses sold
again and all of them are bringing in more children. Which is
wonderful, we're thrilled to death because it's changed from
elderly people to young families.
But with the tortoises, we all want to save as many as we
can. We do not want to take away any houses from the
development unless they interfere with the --just the life there.
The animal life. We can't get rid of all of those things.
And I don't think they're going to walk away, and I don't
think they're going to be scared away. I think they'll still be
coming back.
But I do feel that in the future, whatever they do, that they
do get in touch with the homeowner's association. I do feel that
they should discuss with us what their plans are. We may not
agree with them; we may not be able to do anything about it.
But how can we notify our people that right now we have
approximately 1,800 homes. Now, you multiply that by two and --
actually two and a half with the children that we have now, and
I'm trying to notify people of what's happening.
Everybody's calling me. What is happening? When are they
going to start building? Are they going to build? I'm just asking
for cooperation, consideration, so that I can explain -- maybe not
the way our people want me to explain -- but to explain what is
happening.
And I have appreciated all of you taking into account our
feelings when we have come in to talk to you as a commission.
But we're very concerned about our roads, our streets. We're
very concerned about our children.
And when I came down here this morning, on every other
block, we had anywhere from two to ten children on the corner.
And all I could think of is what's going to happen when we have
all these trucks coming in and the children have no place to
stand except in the street.
That bothered me.
I just want everybody to be careful.
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February 13, 2001
CHAIRMAN CARTER: Thank you, Jane. But if I recall in our
meeting, a traffic plan would be worked out in conjunction with
the homeowner's including times when heavy equipment would
be on the road. Noting when we have school children present,
noting when we have a lot of people exiting out of Palm River in
the morning to go to work.
But all of those would be part of the traffic plan and David
Coreman committed in that meeting to work with you. And
perhaps out of this meeting, David, you need to sit down and help
Jean answer the questions for the community against a time
schedule that you envision may take place.
So I don't think any of that's been lost, and I think that what
counsel said for you this afternoon that a traffic plan would be in
place as a part of that. I think those issues are being addressed,
and try to work it out in the best interest of all concerned.
MR. OLLIFF: Tony Pires is the next speaker followed by
Mimi Wolok.
MR. PIRES.' Thank you, Mr. Chairman, members of the board.
Tony Pires, and I guess I'm suffering from confusion also. I think
Mr. Belt reiterated, I think to my recollection what transpired
with regards to the transition of gopher acreage -- gopher
tortoise habitat acreage and then staff switching it's
recommendation from allowing -- not allowing impacts to allow
the additional five lots to be developed in the norther most
portion of the wetland line, and it still is a surveyed wetland line.
The materials that were submitted by Mr. Ciccarone, and
today he provided me a set of that monster material. I wish it
had been more timely, but I appreciate it being provided because
it still has that wetland line being the same as the one -- the one
in blue there with those yellow lots still being within the wetland
line.
I guess why I'm confused is because back in a staff analysis
to the planning commission concerning this ST petition to the
planning commission back in September of 2000, it stated that
the staff's recommendation is to remove or minimize impact to
the ST wetland and the petitioner's proposing to mitigate for the
impact on the wetlands on lots 94 through 98, which are those
lots in yellow, by providing a high quality gopher tortoise
preserve and creating two other gopher tortoise preserves.
COMMISSIONER MAC'KIE: Where does it say that, Tony?
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February 13, 2001
MR. PIRES: I will make this part of the record. I'm looking
at a staff report from September 18th, 2000 to the planning
commission from the Collier County Planning Services
Department, Community Development and Environmental
Services Division.
And staff -- the petitioner's proposing to mitigate for the
impacts on the wetlands on lots 94 through 98 by providing a
high quality gopher tortoise habitat preserve and creating two
other gopher tortoise preserves. Staff supports the owner's
efforts to mitigate for the minimal impacts and recommends the
developer be permitted impacts to lots 94 through 98.
If I may, this says "the petitioner," so once again, they're up
in this area, as I understand it. Those are 94 through 98, in the
two additional areas are these purple.
COMMISSIONER MAC'KIE: Are those the yellow lots?
MR. PIRES: Correct. Those are the yellow lots. The purple
are the two additional gopher tortoise preserve areas referenced
in the county staff report. Furthermore, it says, this is page 4 of
the staff report. "The petitioner has proposed compensation for
the anticipated allowable impacts to the wetlands with
enhancement to the remaining 9.1 acres, and by creating gopher
tortoise habitats in the three acre gopher tortoise relocation
area at the north end of the property and within the .75 acre
preserve at the southwest corner of the wetland." .75 acre
preserve, number two.
You've heard today -- you've heard -- I guess the state is
saying, you can't have this at the north end. So that three acres
appears to be out of the mix. Therefore, the staff's
recommendation was predicated upon those two additional
areas being gopher tortoise preserve.
CHAIRMAN CARTER: You're right, counsel. The two purple
areas are out of the picture because the state would not
approve them.
MR. PIRES: Once again, this recommendation to planning
commission of staff to allow the impacts in those five lots was
predicated upon the three acres to the north and the .75 acres.
That has changed and I think Mr. Belt adequately stated
what the EAC heard in the September 6th, 2000 consideration by
the EAC. There were discussions also at page 10 with regards to
-- and this was Mr. Peeples, I believe on behalf of the petitioner,
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February 13, 2001
'~Ne have asked for five lots that are partially in those wetlands.
And the reason for that is with the reduction of lots that we have
accomplished in order to protect the gopher tortoises, we are
seeking and staff has recommended approval of mitigating the
loss for the .89 acres for the establishment of prime gopher
tortoise habitat, and with the enhancement of those gopher
tortoise areas."
So again, that's what that was based upon. That doesn't
exist today so, therefore, this ST petition should be denied.
I also -- I know that you don't want to hear anything more
about the PSP process, but I think it's important because we're
not generally involved. The community isn't when the PSP
process --
COMMISSIONER MAC'KIE: But you will get the final plat
approval opportunity.
MR. PIRES: And I just want to make sure -- during the PSP
process, I think it's important -- and staff has been very good --
that if they could be so kind as to get some direction from the
board to contact the homeowner's association when submittals
are made and staff recommendations are about to be made.
Because I think the community has substantial, valuable
knowledge, facts, and information to provide to the staff in
performing their particular analysis.
One other thing I'm confused about, Bob Mulhere started to
say that Steve Lenberger was wrong today, but he never
finished. I'm not sure what that was all about. If that could be
completed just so -- I've had enough confusion for the day.
MR. MULHERE: Thank you. I would appreciate the
opportunity. Steve really was, unfortunately, is pinch-hitting for
Barbara, who's ill. Steve was unaware of the fact, as Tony
alluded to, that the north portion is unsuitable habitat.
Therefore, our recommendation which was predicated on the
fact that that was determined to be suitable habitat no longer
stands. So now we have to look at additional suitable habitat.
COMMISSIONER MAC'KIE: And I have a related question.
Based on what Tony and others were referencing as the staff's
recommendation to the EAC and the planning commission, I -- it
sounds like your recommendation of approval of the ST impacts
was based on the fact that there was significant -- because you
liked the tortoise plan so much.
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February 13, 2001
MR. MULHERE: Correct.
COMMISSIONER MAC'KIE: So, subtracting the tortoise plan
from consideration for a moment, because you're going to look at
that, that is just a question of math. Does it or doesn't it comply
with the ordinance.
If there were no tortoise relocation plan, what would staff's
recommendation be on the ST lots?
MR. MULHERE: Well, I think your question gets to the very
beginning of this discussion, which was why are we looking at
gopher tortoise issues on an ST permit as the board. And again,
as Tony alluded, there was a connection there. There was an --
COMMISSIONER MAC'KIE: And there's not now.
MR. MULHERE: Correct. Nevertheless, our position was
that if they provided suitable on-site habitat, and in part, that
suitable on-site habitat was mitigation to impacts to the
wetlands, we would support the ST request.
COMMISSIONER MAC'KIE: But that was "was."
MR. MULHERE: Correct. But we still will. They're going to
have to revise their plans as they come forward to provide that
suitable habitat. I think we would still support that. But we
don't have that information at this point in time.
COMMISSIONER MAC'KIE: Bob, what's in front of us today --
and I realize this is so confusing -- but what's in front of us today
is that -- what is it 3.8 acres, the green. Based on what's in front
of us today, a 3.8 acre tortoise habitat, what is the staff's
recommendation with regard to the ST impacts? Is that a fair question?
CHAIRMAN CARTER: I don't think so.
MR. MULHERE: They are going to have to provide or
demonstrate to us that they are providing suitable habitat
on-site. And if that wants to be a condition -- you want to make
that a condition of the ST, of course, you're deferring that we will
address that issue, I can assure you that we will. We've stated
that publicly here now two or three times.
CHAIRMAN CARTER: The other option for the petitioner
would have been to do off-site mitigation with those wetland
lots; am I correct?
COMMISSIONER MAC'KIE: That's the question. Should they
-- do they owe the system some money for those wetland
impacts? Sounds to me like they do. And that that's separate
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February 13, 2001
from the tortoise question.
MR. MULHERE: Actually, the gopher tortoise ordinance
states that, subtracting any wetlands, if you have gopher tortoise
habitat on-site, you're 25 percent retained native vegetation has
to be made up of gopher tortoise habitat, scrub habitat --
subtracting the wetlands. So it doesn't push you over the 25
percent, we're not requiring more than anybody else.
But if you've got gopher tortoises, we're saying you've got to
preserve the tortoises -- the habitat, excuse me, not the tortoises
but the habitat.
COMMISSIONER MAC'KIE: I am just trying to be fair to this
property owner even though how I feel right this minute is there's
nothing -- I don't see anything in this record that tells us that this
ST impact is environmentally acceptable with the plan as
proposed today. I don't see it.
But that just doesn't seem fair to this property owner who's
now going to have to go back and -- I've got him in a box now. It
doesn't look like a good plan to me.
CHAIRMAN CARTER: If I understand this, if you deal with
the ST issues alone, those lots, you've got choices. They could
go to off-site mitigation to deal with that issue or they could use
it as a part of dealing with the gopher tortoise plan. That's a
decision one way or the other.
However, if they went off-site with the mitigation of the
wetlands issue, they still have to come back and deal with the
tortoise issue as a separate part of the site development plan
that they bring forward.
MR. REISCHL: Correct. Then they would be mitigating more
than --
COMMISSIONER MAC'KIE: So the bottom line, the question
being asked us today, it appears to me, that the answer is no.
And if they, in their negotiations with you on the gopher plan,
come back at the PSP -- can then they bring us a plat that we say
we like or don't like? That may or may not impact ST lands?
But based on what's here today, this is not good enough.
MR. OLLIFF: Then you could make it contingent upon.
COMMISSIONER MAC'KIE: Express that for me because I
don't get it.
COMMISSIONER HENNING: Condition upon the gopher
tortoise plan.
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February 13, 2001
MR. OLLIFF: Condition upon a final plan submitted as part of
both the PSP and what will eventually be the final plat for the
board to review. It's then going to give you some indication and
level of comfort that in order to trade-off what is the ST impact
here, that they've either done on or off-site mitigation that you
are comfortable with.
COMMISSIONER MAC'KIE: It's just apples and oranges to
me. Wetlands -- the benefit to wetlands is not comparable.
MR. OLLIFF: It is, but keep in mind that was the apple and
orange comparison that gave both the EAC some level of comfort
prior to their knowledge that the Fish and Game didn't find that
suitable habitat, and it was also the apple/orange comparison
that gave your staff the level of comfort to recommend approval
of this ST impact.
COMMISSIONER MAC'KIE: I don't see how -- I don't
understand what a condition could be that I could vote for
approval today conditioned on that they give us a new plan.
CHAIRMAN CARTER: You could vote -- if you make it
contingent, you could approve this ST plan on the bases that if,
one, it is off-site mitigation. Then they have to deal with the
tortoise plan strictly as a separate issue under the current
ordinance. Am I correct on that?
MR. REISCHL: That's correct.
CHAIRMAN CARTER: Or they have an option to keep those --
to use those lots as a part of the tortoise plan, because that's
the contingency there. That's the on-site mitigation.
COMMISSIONER MAC'KIE: Those yellow lots aren't suitable
habitat.
CHAIRMAN CARTER: I know. But they could use it on the
basis that they will give you a trade. Give you a trade for more
gopher tortoise --
MR. REISCHL: Instead of trying to work out a plan for the
petitioner now, Mr. Mulhere suggested that we bring the PSP
prior to his approval back to you for your review.
COMMISSIONER MAC'KIE: Gosh, let's look at this four times
instead of once.
CHAIRMAN CARTER: I see you shaking your head. Help me
out in this. Can I get somewhere where we can do something?
COMMISSIONER MAC'KIE: I'm going to make a motion that
we deny the ST overlay and it's based on what's in front of us.
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February 13, 2001
It's not adequate. They can apply again with the mitigation plan
for the wetlands and with the turtle plan. But it's apples and
oranges, in my judgment, to give credit for wetland impacts by
upland habitat retention.
And so based on that, I'm going to move for denial.
CHAIRMAN CARTER: Second to that?
COMMISSIONER COLETTA: I'll give a second.
CHAIRMAN CARTER: Okay. We have a first and a second to
deny the ST -- to deny the wetlands.
COMMISSIONER MAC'KIE: Do they have a six-month
prohibition for reapplication? I mean, I think there's a plan that
would work on this land. This just isn't it.
MR. REISCHL: No. This is an ST permit.
COMMISSIONER MAC'KIE.' So they can come in next week
with something better. Show me some wetlands mitigation for
that acre and then comply with the turtle plan, and we'll be
happy to talk about it.
But is sounds like what you're proposing to do -- I appreciate
so much what you're proposing to do with regard to paying into
an MSTU for the road widening and the sidewalks in this area.
Because that's a gift, and that's a good gift and you should give
it.
But I can't see how we can trade the uplands for wetlands.
And there aren't even any uplands on the table.
MR. REISCHL: Mr. Chairman, if I -- if it gives you a little more
comfort, the first stipulation, first condition in the proposed
resolution says development within the ST overlay shall be
consistent with environmental sections of the Growth
Management Plan, Conservation and Coastal Management
Element, and the Land Development Code.
I don't know if that affects your comfort level.
COMMISSIONER MAC'KIE: What you're saying is, if my
motion were to fail, then we could pass a motion with that
condition that would cover the items that I've --
MR. REISCHL.' We put that in there with that intent.
CHAIRMAN CARTER: Do you want to amend your motion?
COMMISSIONER MAC'KIE.' I don't understand how we can
do it. I am going to leave my motion, you all vote how you want.
COMMISSIONER COLETTA: I would welcome a workshop on
something like this.
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February 13, 2001
CHAIRMAN CARTER: Counsel.
MR. CICCARONE: Commissioners, this is the sixth time this
has been heard. It's going to be heard at least seven times.
From what I can tell in reading the transcripts, the same thing is
said at every hearing.
At some point a decision will have to be made. I think it is
obvious, based upon comments I heard from the board this
morning that you are mindful of the protection of private property
rights. And it's understood that some development will occur on
this property or Collier County will have bought it. Those are
your choices.
Now, we might as well get to the question of what
development will occur. And I would respectfully suggest that
you are going to be readvised on his at the time that you take up
the plat. Follow the recommendation of your staff, condition the
ST approval upon approval of the plat because, quite frankly, one
without the other is utterly worthless to us.
And avoid sending everything back through the process
where you will now have 10 hearings by the time we get to the
end of it. Quite frankly, I don't understand your process, and I'm
not sure anybody in this room does at this point. And I think to
send the applicant back at this stage is just unreasonable.
You're telling us that when this comes forward, deal with
the gopher tortoise ordinance in some satisfactory fashion. We
hear you, we understand what that means. We may disagree
whether we have or haven't done it, but we understand what that
means.
We understand that we have to deal with the wetland issue
in some fashion. Let's deal with it at one process, let it be the
plat process. It's going to be a public hearing anyway. That
commitment has already been made. Let's all get on with it, let's
do it one last time. Vote it up, vote it down, but let's quit running
it back and through the process. It doesn't serve any good
purpose.
These homeowners are paying legal fees just like the
applicant. The issues never change, at some point the board has
to make a decision. The staff is fully in tune with what's going
on. Quite frankly, I don't know what their recommendation is
today at this point. I don't know what it is on the ST.
I haven't heard any substantial competent evidence that
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February 13, 2001
would justify a denial, Commissioners. And even if I did, I would
still respectfully suggest that no good public purpose is served
by running this back through.
Take the staff's advice. Approve it subject to a satisfactory
PDP approval, one without the other doesn't matter. So you're
not losing anything in that regard. We understand at the time of
the PDP, you'll be looking at the gopher tortoise protection issue.
We understand how it all fits together. Let's just do it in that fashion.
COMMISSIONER MAC'KIE: Question that I have for staff is if
we took that recommendation and I withdrew my motion, would
the Environmental Advisory Council look at this plat question
because I need their advice.
MR. REISCHL: If there was a significant enough change in
the preserved habitat then they would have to.
COMMISSIONER MAC'KIE: So aren't we talking six of one,
half a dozen -- you're going back through the process either way,
Mr. Ciccarone, you're going back through it.
MR. REISCHL: Again, to clarify the processes, that would
not be for the ST. If you approve the ST today, then the PSP, a
different --
COMMISSIONER MAC'KIE: Couldn't you simultaneously
do their new ST application with their PSP. I see your boss
saying yes.
MR. REISCHL: Yes.
COMMISSIONER MAC'KIE.' Well, that's what I want you to
do, so that's why I'm going to stay with denial.
You're going the same place. It's just you're going to get
where I think we should have been today, and that is, let's see
the whole picture at one time.
MR. CICCARONE: Do you have denial without prejudice as
one of your procedural options in Collier County?
COMMISSIONER MAC'KIE: That would be my motion, that's
my intention.
MR. CICCARONE.' Well, I'm not encouraging you to deny it,
but if you do, I'd at least like it to be without prejudice so we
don't waste six months getting to the issues.
COMMISSIONER MAC'KIE: And that's -- he's talking Lee
County lingo. But that was the reason for my question about six
months. This was my intention.
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February 13, 2001
CHAIRMAN CARTER: So if we deny it, it comes back
through the process with both pieces together so we can look at
it totally and make that decision. Is that what I'm
understanding?
COMMISSIONER FIALA: That's with direction from us, what
we're expecting from them?
COMMISSIONER COLETTA: Basically, what we're saying,
"This is not good enough." Is that correct?
COMMISSIONER MAC'KIE: That's what my motion is.
COMMISSIONER COLETTA: Very simply, it's not good
enough.
MR. OLLIFF: Mr. Chairman, while the attorneys are trying to
figure out where I think you need to go, we did interrupt and we
did get off track when Mr. Pires was your speaker and you do
have one last public speaker. Maybe while he's speaking, we
can be thinking. Doctor L. E. Goldman.
CHAIRMAN CARTER: I'm sorry. I apologize for that.
DR. GOLDMAN: I hate to further muddy the waters, but I
think I have some items that are very significant. I wonder how
the Collier County commission feels with conflict of interest
here.
I represent the Collier's Reserve Homeowner's Association
and Collier's Reserve County Club membership. In the past, the
law firm of Annis, Mitchell, Cockey, Edwards, Tom Garlic, et
cetera, have represented our interests.
COMMISSIONER MAC'KIE: And God bless you, but that's a
bar question.
DR. GOLDMAN: Okay. Well that's what I'm -- that's why I'm
posing it as a question. Okay. I know in a court of law this
would be of significant value.
The other issue that I would like to bring up then would be
the easement that they have not addressed which goes into this
property.
Ms. Ma¢'kie, further addressing your concerns to the owner.
And it's not the property owner that's in a box, I think it's the
developer. They have not done their homework. The reason that
they've been back here six times or five times is because of
questions that have been brought up from people in Palm River
and adjacent communities.
Three times because of the Environmental Advisory
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February 13, 2001
Committee. Not preparing properly. Testimony brought up here
in March when I was here by Mr. Garlic stating that there were
no environmental issues in that area. That there were no birds,
that there were no wildlife. That he lives on the property and
he's been back there.
And if you question me, you just have to review the
transcript from --
COMMISSIONER MAC'KIE: I think you mean Mr. Peeples.
DR. GOLDMAN: No, I mean Mr. Garlic.
COMMISSIONER MAC'KIE: You do?
DR. GOLDMAN: Yes. Mr. Garlic lives in our community. I
don't know that Mr. Peeples does.
I know Mr. Ciccarone to my knowledge does not live in
Collier's Reserve, but Mr. Garlic does. He was here. I heard him
say these things, and I questioned him at the time. I made a
phone call to his office. He did not return my phone call.
Now, we know there's wildlife back there. The gopher
tortoises are wildlife. They protect, by the nature of their
burrowing, 300 varieties of wildlife in forms of shelter in that
community. Now, I don't want to get on that.
But I'm concerned that they haven't addressed the
easement that's in that property. Well, it's a recorded easement
which I researched myself, and I'm sorry, I didn't make copies of
it. It simply -- I'll give you the first few lines of the easement, it's
COMMISSIONER MAC'KIE: Just tell us where it is.
CHAIRMAN CARTER: And I need the county attorney to
respond to that.
DR. GOLDMAN: It's in section 23, and it's in plat book 20,
pages 59 to 87. I can show you basically on the map here.
MR. OLLIFF.' If I can get you to go to that speaker, we'll put
it on the --
CHAIRMAN CARTER: It's been brought in meetings with
everybody in the room, as I remember, Mr. Weigel, and it was --
maybe you weren't there. One of our attorneys was there. And
that easement's been there and discussed.
And I don't recollect what the disposition of that was, but I
had the impression that it was already handled. But if I am
wrong, then somebody needs to clarify. If it hasn't been handled,
why hasn't it?
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February 13, 2001
DR. GOLDMAN: I'll show you. Put their overlay on this.
COMMISSIONER MAC'KIE: Okay, now take it off.
DR. GOLDMAN: I'm sorry, I had it on backwards. It's getting
late for everybody. Okay, this is their layout. Now, I'll take it off.
Unfortunately, it doesn't lay over.
And there's the recorded easement underneath, here, here,
here. It's 85 feet wide by 550 feet deep.
COMMISSIONER MAC'KIE: And it runs in favor of whom?
DR. GOLDMAN: Collier Development.
COMMISSIONER MAC'KIE.' Which is Collier Reserve?
CHAIRMAN CARTER: Collier Enterprises.
DR. GOLDMAN: Collier Enterprises, Collier Country Club.
The issue of this easement is another in the area of why we're
back again, and why you're going to be back again.
And to address the issue that you brought up, Ms. Mac'kie,
again, the developer has to look at the cost of continually giving
back acreage that they have not accounted for. So if they have
not accounted for another -- what this would constitute, another
four to six lots, so be it.
The other things that I would just like to briefly come up and
bring to your attention is the items of -- if this goes through, the
prevention of dumping environmentally and sensitive material on
Collier property, the Collier Golf Course, and the destruction of
foliage that would take place that is in between our properties
and their properties that are lying across this easement and
across the gopher tortoise preservation that is already in there,
too. That is recorded. Thank you.
CHAIRMAN CARTER: Thank you. And I would like some
answers to the questions.
MR. REISCHL: If I can get a statement on the record? We
were aware of the easement, and the petitioner was aware of the
easement. The preliminary subdivision plat says, "Prior to
platting, the plat will vacate that easement."
Therefore, if they pay or however compensate the holder of
the easement, that we just require that to be done before
platting, not necessarily a preliminary plat.
COMMISSIONER MAC'KIE.' And that's just out there. That's
a private matter that if Collier, whoever, wants to give that away,
or fight for it, or charge them a million bucks, that's their
business, it's not ours. It's relevant, but it's not our business.
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February 13, 2001
MR. REISCHL: Right. And if they don't -- if it's not vacated,
then the petitioner can't build lots or preserves or anything on
that strip of land.
CHAIRMAN CARTER: And at this point, we don't have
anyone from Collier Enterprises to tell us where or not they'll
vacate it.
COMMISSIONER MAC'KIE: It's not our business.
MR. REISCHL: No, that's right.
MR. COMSTOCK: Mr. Chairman, I've not been sworn in, but
may I respond to that question?
CHAIRMAN CARTER: Rollie I know because you live in
Collier's Reserve, and you've been a part of those discussions.
MR. COMSTOCK: I am representing the homeowner's
association.
CHAIRMAN CARTER: Okay. If you could come to the
microphone, for the record. I think it's important that the board
hear this.
COMMISSIONER MAC'KIE: Our court reporter could swear
him in at this time.
MR. COMSTOCK: My name is a Rowland Comstock. I am
representing the Collier's Homeowner's Association. The golf
club and the homeowner's association is in the process of
negotiating with Collier's Enterprises to turn both over to our
individual members from the corporate ownership.
The turnover committee has a letter from Collier Enterprises
saying that this easement will be included as part of a package
of the turnover to the homeowners.
COMMISSIONER MAC'KIE: So you're going to own it?
MR. COMSTOCK: Yes.
COMMISSIONER MAC'KIE: Do you -- does the association
have any plans to vacate this easement?
MR. COMSTOCK: No.
COMMISSIONER MAC'KIE: Okay.
COMMISSIONER HENNING: So it doesn't matter what we do
here today.
COMMISSIONER MAC'KIE: I've never wasted so much time
in my life.
MR. CICCARONE: We'll deal with that problem at the
appropriate time. If it's a civil matter, I'm sure Collier's Reserve
knows where the Circuit Court is, and we'll resolve it there. But I
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February 13, 2001
don't believe that the board needs to be burdened with it today.
COMMISSIONER MAC'KIE: It's not our business.
MR. CICCARONE: That's correct. I would like to say,
Commissioners, that before you vote, I'd like to take just about
two minutes and have Mr. Farmer and Mr. Meyers very briefly
comment on the question of their recollections of prior
discussions they had with the staff regarding the question of
whether the 3.8-acre preserve, the one in green, that one alone,
was regarded as sufficient mitigation for what we are proposing
to do in the ST area.
I think it's relevant to what you're hearing.
COMMISSIONER MAC'KIE: But, you know, the only problem
with that is the ordinance has changed. And so if it was relevant
-- if it was sufficient ever how many months ago, we were told
that it's not relevant because you have to be sufficient with the
ordinance in place when you plat, and you're not there yet. We
might change it again.
MR. CICCARONE: My understanding is that these
discussions postdated your ordinance, as did all of the
discussions before the EAC and the planning commission.
It's your pleasure, Mr. Chairman.
CHAIRMAN CARTER: I really don't think at this point I need
to hear that. It's all part of public record, unless other
commissioners want to hear it, because I think the issues that
the motion in front of us -- it won't make any difference.
COMMISSIONER HENNING: I think we beat this enough. We
beat it any more, we're going to have to get the S.W.A.T. team in
here.
MR. REISCHL: There's a possibility of a continuance
instead of a denial. A continuance would allow them to come
back with the ST with the new PSP. That's another possibility.
COMMISSIONER MAC'KIE: With all due respect, they've got,
like, one of the sharpest lawyers in southwest Florida up here. If
he wanted that, he would ask for it. You know, it's not our job.
MR. CICCARONE: Well, I'm still trying to read votes, and so
far I read two for denial, and three I'm not sure about. If you're
telling me that you're going to deny it, then we'll ask for a
continuance. And I'll make that request now.
CHAIRMAN CARTER: I'll make that easy for you. I'm going
to vote for denial.
Page 166
February 13, 2001
COMMISSIONER MAC'KIE: So, did you just continue it? We
get to do this another time?
MR. OLLIFF: You were going to have to do it another time
anyway, so this is at least allowing you to do it another time with
the whole picture in front of you.
COMMISSIONER MAC'KIE: If you'll give us the whole
picture, you won't let us see pieces.
COMMISSIONER COLETTA: Maybe this time we'll get it
right.
COMMISSIONER MAC'KIE: Okay. Well, this was fun.
CHAIRMAN CARTER: Counselor, I'm going to vote for denial.
Do we have --
COMMISSIONER MAC'KIE: I think he just said it's continued.
CHAIRMAN CARTER: I'm speaking for myself.
COMMISSIONER HENNING: I didn't hear that.
MR. CICCARONE: I did. I asked for it to be continued.
CHAIRMAN CARTER: All right.
MR. WEIGEL: You need to agree and vote on continuing it.
CHAIRMAN CARTER: I make a motion we continue this item
until 80 years from now when I'm off the commission. No.
COMMISSIONER MAC'KIE.' Can we get staff's
recommendation on this continuance motion?
MR. OLLIFF: Two things. One, you have a motion on the
floor already.
COMMISSIONER MAC'KIE: I withdraw my motion to deny.
COMMISSIONER HENNING: And I withdraw the second.
MR. OLLIFF.' Second, I would just recommend that the board
continue this until such time as the hearing of the final plat.
CHAIRMAN CARTER: I'll make that motion.
COMMISSIONER COLETTA: I'll second it.
CHAIRMAN CARTER: All in favor, signify by saying aye.
Motion carries 5-0.
MR. CICCARONE: Thank you, Commissioners. May I pick up
this paperwork?
COMMISSIONER COLETTA.' If you're going to submit it, get
it to me at least a week ahead of time, would you? I'll be more
than happy -- I'll read every bit of it. I just hate to receive it at
the time of a meeting.
CHAIRMAN CARTER: Court reporter, are you okay or do you
need a break? We are going to take five for our court reporter.
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February 13, 2001
(Brief recess.)
Item #8B1
REQUEST TO ENGAGE DESIGN/BUILD CONTRACTOR FOR A NEW
BRIDGE AND APPROACHES AT THIRTEENTH STREET SW OVER
THE GOLDEN GATE MAIN CANAL -APPROVED
CHAIRMAN CARTER: We're moving to agenda item number
B1, Request for approval to engage design/build contractor for
the new bridge that approaches at 13th Street SW over the
Golden Gate Main Canal.
COMMISSIONER MAC'KIE: Motion to approve.
CHAIRMAN CARTER: Do I have a second?
COMMISSIONER HENNING: I'd like to have some discussion
here.
CHAIRMAN CARTER: We have a first and we have a second.
And Commissioner Henning.
MR. FEDER: First of all, for the record, Norman Feder, your
transportation administrator. I'll be very brief.
I do have to make one aside, if I could, with the board's
indulgence. I followed with a lot of interest your discussion on
the gopher tortoise ordinance and decided that since our habitat
is not suitable for all the vehicles that we have on it that we are
going to start a relocation program, at least the beginnings of it.
Starting this Thursday, where the Collier area transit system
service that we're starting up this Thursday and also invite --
obviously the commissioners are going to be there at 2 o'clock.
Want everybody to know. We're to have the buses out at the
center there at 2 o'clock.
Having said that, in response to the commissioner's
question, we are looking at putting a bridge across the Golden
Gate Main Canal at 13th Street. Included in here is modifications
to the approaches, as well as the permitting, under a concept of
design/build, where we go out for one person to both design it
and to build it.
It's a needed project. One that we have very strong support
from the community addresses both issues of medical, fire, and
access to public facilities, including the library.
Does that answer your question?
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February 13, 2001
COMMISSIONER HENNING: Yes.
CHAIRMAN CARTER: All in favor, signify by saying aye.
MR. OLLIFF: You have four speakers, and as I call their
names, if they understand where the board is going, if they're in
favor, they'll just wave.
Nancy Bisbee, Pat Humphries, Debra Addams.
MS. ADDAMS: I'm in favor, but I have a couple of thoughts I
would like to address.
COMMISSIONER MAC'KIE: You're a very patient lady. Thank
you for waiting.
CHAIRMAN CARTER: Sorry for not asking for public input.
MS. ADDAMS: When it started out, it was good morning,
Commissioners. I guess it's good afternoon, Commissioners.
My name is Debra Addams, and I reside at 101 13th Street
Southwest. I've been a resident of Collier County for 32 years.
My husband and I have owned our property for ten and a half
years. We built our residence. We have resided in it for eight
years.
Our property is located 340 feet south of Golden Gate
Boulevard. We are 1.2 miles north of this proposed bridge. We
greatly understand the need for this bridge. However, we have
several concerns about the added traffic on our street and how
the county plans to control and monitor it.
Upon completion, this bridge will open up a two-and-a half
mile strip of road. It will include pedestrian and bike traffic that
will be coming to the Estates Branch Library at that intersection,
as well as car traffic to Golden Gate Boulevard.
13th Street is currently a narrow rural designed road. With
the new drainage that is currently being added due to the
widening of Golden Gate Boulevard, the new swale at my
driveway is four feet deep.
These roads are not designed for cars traveling side by side
and pedestrian or bike traffic. There's going to be no place for
somebody to go.
For the safety of our residents along 13th Street, anyone
traveling on 13th Street, I would ask the commission to include,
in the design stage of this proposed project, bike paths to assist
pedestrian and bike traffic and consider speed humps to control
the traffic speed so that we're not questioning the design after a
tragedy occurs.
Page169
February 13, 2001
I thank you for your time and consideration as you proceed
with the directives for this project.
CHAIRMAN CARTER: Mr. Feder, would you like to comment
on that?
MR. FEDER: Yes. We notice that the bridge as well as the
improvements to the approach facilitates some widening. We
will look at the issue on provision for bikes and anything we can
do there.
I would hold back, and hopefully we can address later if
need be the issue of speed humps, but at the same time, I would
like to not address that in the initial development of the facility,
unless we find that we are having the problem that I think they
are anticipating.
But we do need to design it to accommodate the additional
traffic, and that's why we said not just the bridge, but also
improvements to the approaches.
COMMISSIONER FIALA: But when you said bike paths, did
you also mean sidewalks and bike paths?
MR. FEDER: That's what we're looking at.
COMMISSIONER COLETTA: As far as the traffic control on
that street goes, I'm going to make a personal appeal to the
sheriff's department to start now because they're having a
problem on that street now with some of the residents that live
down at the end, access speed, and then we'll keep up the
program during the whole stage so that people that are going to
be using this particular road will realize it's not going to be a
raceway to reach the boulevard, or vice versa, White Boulevard.
MR. FEDER: Enforcement is probably the most effective.
COMMISSIONER COLETTA: Right.
COMMISSIONER MAC'KIE: You know, my brother's a cop in
that precinct, so.
CHAIRMAN CARTER: That's wonderful. Can we call a
motion, again. All in favor signify by saying aye.
Opposed by the same sign.
(No response.)
CHAIRMAN CARTER: Motion carries. Thank you.
Item #8B2
RESOLUTION 2001-46, AUTHORIZING THE ACQUISITION OF
Page t70
February 13, 2001
LAND BY CONDEMNATION OF FEE SIMPLE TITLE INTERESTS
AND/OR PERPETUAL, NON-EXCLUSIVE ROAD RIGHT-OF-WAY,
SIDEWALK, SLOPE, UTILITY, DRAINAGE, MAINTENANCE, AND/OR
TEMPORARY CONSTRUCTION INTERESTS BY EASEMENT FOR
THE CONSTRUCTION OF THE SIX-LANING ROADWAY
IMPROVEMENTS FOR LIVINGSTON ROAD PROJECT BETWEEN
GOLDEN GATE PARKWAY AND PINE RIDGE ROAD -ADOPTED
We move to the next item which is B2, RESD authorizing
acquisition of lands for six-laning Livingston Road.
COMMISSIONER MAC'KIE: Motion to approve, previously
16B1.
CHAIRMAN CARTER: Second?
COMMISSIONER FIALA: Second.
CHAIRMAN CARTER: All in favor signify by saying aye.
Opposed by the same sign.
(No response.)
CHAIRMAN CARTER: Motion carries.
Item #8C1
AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT
RELATED TO RELOCATING THE PROPOSED SITE FOR AQUIFER
STORAGE AND RECOVERY OF RECLAIMED WATER, RFP 99-2926 -
APPROVED
Takes us to item C1, approve amendment to Professional
Services Agreement related to relocating the proposed site to
the aquifer storage and recovery of reclaimed water.
COMMISSIONER MAC'KIE: Motion to approve.
COMMISSIONER FIALA: Second.
COMMISSIONER HENNING: Question.
CHAIRMAN CARTER: Questions?
COMMISSIONER HENNING: Are we going see this again? Is
it going to come to the board?
MR. MUDD: This will come to the board again. There are
three things that happens here. One is we take the permit off of
the -- out of that -- the north waste water plant. We submit a
permit for the Pelican Bay well field, and the other issue is to
give me the authority, with the review of the county attorney, the
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February 13, 2001
ability to go out and contract, amend the contract, so that we
can go do that.
There is a big chunk in that 350,000. There's 200,000 for
contingency. We're hoping to get the U.S. Geological Survey to
do our sampling for us and do the testing and that bit. That will
significantly reduce the cost.
If we don't -- they do it on first come, first serve on the list.
If they -- if we don't bubble to the top at the right time and we
have to go out and get this done with the civilian organization, it
will increase our costs, and that's what basically that
contingency is for.
COMMISSIONER HENNING: I also want to thank you for our
discussion and our e-mails. We had a constituent that was
confused about ASR and deep-well injections.
COMMISSIONER MAC'KIE: Just for the board's information,
I'm working -- I hope that you recall that I'm your liaison for
everglades restoration issues, and I'm working with Senator
Saunders and others to see if we can organize a workshop on the
ASR issue generally, more as it applies to the 333 ASR wells
proposed as part of the everglades restoration.
But certainly as we gather data from this test drill -- which is
not a well, it's a dry hole in the ground -- but as we gather that
data, I'm sure it's something that would be relevant for the
everglades. For the scientists who are studying whether or not
this would work for everglades restoration.
So hopefully, we will be able to have all of the experts in
Collier County to talk about ASR as a general concept, and it will
be helpful to us as we go forward with the permits. As we see
the data we get from this test drill to see if we're going to go
forward.
COMMISSIONER COLETTA: Pam, I appreciate your hands-on
on this particular issue, I really do.
CHAIRMAN CARTER: I think it's great and I think we need to
continue through 54 and other public relations and education
efforts to get to the community to let them understand just
exactly what an ASR well is. And so let's continue to keep that
out there on 54 so people understand what it is.
COMMISSIONER MAC'KIE: We don't know everything yet.
We're testing. We're going to keep testing and we're going to
keep learning and then we'll decide.
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February 13, 2001
COMMISSIONER HENNING: Call on the motion.
CHAIRMAN CARTER: All in favor signify by saying aye.
Opposed by the same sign.
(No response.)
CHAIRMAN CARTER: Motion carries.
MR. OLLIFF: For the record, that was Jim Mudd, public
utilities administrator.
MR. PETTIT: For the record, Mike Pettit from the county
attorney's office. I wanted to advise you of something related to
this item. As you know, the city voted that they would withdraw
the objection if we changed the site. We have received a
proposed settlement agreement from the city. It looks like it's
about 90 to 95 percent from our point of view. We haven't
finished reviewing it. We are going to get back to them.
I want you to be aware you will have -- this is not a
settlement of that issue today. What you've done is just decided
to move the site which, of course, is one of the things that the
city -- or one of the key things the city was looking for.
That settlement agreement will come back before you and
you will have to vote on that as a separate item. And I'll try to
get a memorandum to you all and/or discussion on that at that
time.
COMMISSIONER MAC'KIE: And that's going to happen
quickly because we don't really want Mr. Mudd to go change this
unless it solves this problem.
CHAIRMAN CARTER: So how soon do you expect that
because if they are not going to agree to this, then I'm going to
go right back to where we originally planned to do it.
MR. PETTIT: Well, in the proposed settlement agreement,
which at this point is simply a proposal, they have agreed that if
we move the site to the Pelican Bay well field, that they will not
oppose the initial exploratory well permit.
The city has reserved it's right, assuming they have
standing, to object to the two other permits we would need to
develop a fully functioning ASR well field at that site.
COMMISSIONER MAC'KIE: You know, I've got to be honest, I
may object. I don't know if I'm going to love this idea until I see
what the geology shows.
COMMISSIONER COLETTA: I think they're acting in good
faith. I like the direction we're going and I think that they're
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February 13, 2001
going to come through in the right manner.
MR. PETTIT: And we'll get that back on the next agenda.
CHAIRMAN CARTER: Thank you.
Item #8E1
RATIFICATION OF CONTRACT BETWEEN THE COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS AND THE SOUTHWEST
FLORIDA PROFESSIONAL FIREFIGHTERS, LOCAL 1826,
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, INC. -
APPROVED
Let's move to item El, Support services. It's ratification of
contract between Collier County Board of County Commissioners
and Southwest Florida Professional Firefighters Local 1828,
International Association of Firefighters, Inc.
I would move for approval.
COMMISSIONER MAC'KIE: Second.
CHAIRMAN CARTER: Any discussion?
All in favor signify by saying "aye."
COMMISSIONER COLETTA: Are there any speakers?
MR. OLLIFF: There is.
CHAIRMAN CARTER: There is?
COMMISSIONER MAC'KIE: Well, there's a lawsuit so there's
bound to be speakers.
MR. OLLIFF: Mr. Chairman, Eric Watson.
MR. WATSON: Yes. For the record, Eric Watson, southwest
Florida Professional Firefighters. Just, Mr. Chairman, the
commission wanted to thank Mr. Olliff and Gary Beauchamp and
others that were on the negotiating team, Mr. Storch (phonetic),
Chief Flagg, Chief Page, Commander Rockey.
We got here today, it was because of their cooperation and
the help of the two' parties working together and just wanted to
say thank you.
COMMISSIONER HENNING: So you're in favor of the
contract?
MR. WATSON: Absolutely.
MR. OLLIFF: Gary, is there anything that you needed to get
on the record?
MR. BEAUCHAMP: Yes. Gary Beauchamp, employee
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February 13, 2001
relations supervisor for human resources. Just wanted you to
know that, with this contract, we feel we have a fair and
equitable contract for both parties. And that's been important
for Collier County. And that's what we think we reached with
this contract.
CHAIRMAN CARTER: Thank you.
MR. OLLIFF: Thank you, Gary.
COMMISSIONER HENNING: Do we have a question?
CHAIRMAN CARTER: We already did it. That was kind of
after the fact. Do we have to do it again? I don't think so.
Nobody was objecting.
Okay. That takes us to item --
COMMISSIONER HENNING: We didn't vote on it.
CHAIRMAN CARTER: All in favor signify by saying "aye."
Opposed by the same sign.
COMMISSIONER HENNING: I know there was a first and a
second, I didn't hear a vote.
COMMISSIONER FIALA: Somebody asked about anybody
from the audience.
Item #8H1
STATE FAST TRACK GRANT IN THE AMOUNT OF $535,000 TO
CONSTRUCT A CARGO PROCESSING FACILITY AND U.S.
CUSTOMS OFFICE AT THE IMMOKALEE REGIONAL AIRPORT -
APPROVED
CHAIRMAN CARTER: Got to watch that train. H1, Approval
of the State Fast Track Grant to construct a cargo processing
facility in U.S. Customs.
COMMISSIONER COLETTA: I make a motion that we
approve it.
COMMISSIONER MAC'KIE: I bet you do. Second.
MR. OLLIFF.' Mr. Drury, Executive Director with the Collier
County Airport Authority.
COMMISSIONER MAC'KIE: Got a second for approval.
MR. OLLIFF: Do you have any questions?
CHAIRMAN CARTER: None. Speakers?
MR. OLLIFF.' You have no speakers, but I did promise the
mayor, Fred Thomas, that I would tell everyone he was very
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February 13, 2001
much in favor of the item.
CHAIRMAN CARTER:
aye.
Okay.
All in favor signify by saying
Opposed by the same sign.
(No response.)
CHAIRMAN CARTER: Motion carries.
Item #10A
RESOLUTION 2001-47, APPOINTING WILLIAM ADAMS, LIBBY
ANDERSON AND REAPPOINTING DONALD CAMPBELL, EDWARD
FERGUSON AND SHARON HANLON TO THE COUNTY
GOVERNMENT PRODUCTIVITY COMMITTEE - ADOPTED; AND
WAIVER OF CONSECUTIVE TERMS
That takes us to the Board of County Commissioners
appointment of members to the county government productivity
committee.
COMMISSIONER MAC'KIE: We have more openings than we
have applicants. So I would think the applicants who have
applied and move their approval.
CHAIRMAN CARTER: Second on that.
COMMISSIONER FIALA: Second.
CHAIRMAN CARTER: There is a first and second. All in
favor signify by saying aye.
Opposed by the same sign.
(No response.}
CHAIRMAN CARTER: Motion carries.
We now move to appointment of a member --
COMMISSIONER MAC'KIE: Excuse me. And I amend my
motion to make the finding to allow for people to serve additional
terms.
MS. FILSON: Yes. Mr. Edward Ferguson. We need to waive
that.
COMMISSIONER FIALA: Thank you, and I'll second that.
CHAIRMAN CARTER: Okay. And if everybody's okay with
that, then we approve it.
Item #10B
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February 13, 2001
RESOLUTION 2001-48, REAPPOINTING KATHRYN GODFREY TO
THE COLLIER COUNTY CODE ENFORCEMENT BOARD - ADOPTED
Let's move to the item on appointment of a member to the
Collier County Code Enforcement Board.
COMMISSIONER HENNING: Reappointment, Catherine
Godfrey.
COMMISSIONER COLETTA: Second.
CHAIRMAN CARTER: All in favor signify by saying aye.
Motion's approved.
Item #10D
RESOLUTION 2001-49, SUPPORTING SCHOOL NURSES-
ADOPTED; AND LETTER TO BE SENT TO SCHOOL BOARD ASKING
THAT THEY ALSO SUPPORT THE ISSUE AND FORWARD
RESOLUTION TO THE LEGISLATIVE DELEGATION
We did C. Last one is item D. I'm just bringing to your
attention a request that came from the school nurses of
Okaloosa County in regards to school nurses. And what I'm
going to recommend to the board is that we give this to the
health care committee to discuss as part of their
recommendations back to us. Because it really is a school board
issue and not one that would come in front of our board, but
supporting that idea.
COMMISSIONER MAC'KIE: But, you know, I'd love to pass a
resolution in the form that they've given us and we send it to the
school board and ask them to please find school nurses. I know
it's not our bailiwick; it's not our money. I'll do whatever the
majority thinks.
CHAIRMAN CARTER: Whatever the board wants to do.
COMMISSIONER HENNING: I agree. And my understanding
is, in the rural area that that's going to happen anyway. That's
what Ed Morton told me six months ago.
COMMISSIONER COLETTA: That was six months ago. The
funding is lost. It's a couple hundred thousand dollars they've
been getting every year through the hospital is dried up. This is
the last year for it.
COMMISSIONER HENNING: This is through the state of
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February 13, 2001
Florida.
COMMISSIONER MAC'KIE: This would be asking the state of
Florida to fund school nurses. But until the legislature meets
this time, we won't know if they're going to do it or not.
CHAIRMAN CARTER: Well, what they ask is to pass a
resolution encouraging the governor to put it in his budget.
COMMISSIONER HENNING: I'm in favor of Commission
Mac'kie's recommendation.
COMMISSIONER MAC'KIE: Is there a motion on the floor?.
CHAIRMAN CARTER: Yes.
COMMISSIONER MAC'KIE: Then I'm going to move that we
pass the resolution in the form that's in our agenda item 10D and
that we send it on to our local legislative delegation for
transmittal to the appropriate parties.
COMMISSIONER HENNING: I thought you said you wanted
to send it to the school board.
COMMISSIONER MAC'KIE: I'm sorry. And also to the school
board.
CHAIRMAN CARTER: So you want to amend your motion
because you only had school board.
COMMISSIONER MAC'KIE: I'd like to see the state fund it
and if the state doesn't fund it, I wish the school board would
find a way to fund it.
CHAIRMAN CARTER: So you want to send a resolution, one
to the state and one to the school board? COMMISSIONER MAC'KIE: Yes.
CHAIRMAN CARTER: Okay. Then you need to amend your
motion.
COMMISSIONER MAC'KIE: So amended.
CHAIRMAN CARTER: You want the state to consider it. It
seems to me like two different issues.
MR. OLLIFF: My suggestion to you would be that we adopt
resolution asking the state, our legislative delegation, to
consider state funding for this program.
I'd also suggest that we send a letter to the school board
asking that they adopt a similar resolution that they send to the
legislative delegation to try and add some additional support.
COMMISSIONER MAC'KIE: That's why he gets the big bucks.
That's it.
CHAIRMAN CARTER: That's your motion?
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February 13, 2001
Do we have a second to that?
COMMISSIONER FIALA: Second.
CHAIRMAN CARTER: Do we have any discussion?
in favor signify by saying aye.
Motion carries.
If not, all
Item #10E
DISCUSSION REGARDING COMMUNITY CHARACTER ISSUE -
STAFF TO CONTACT ORGANIZATION INVOLVED IN THIS ISSUE
AND ASK THEM TO MAKE A PRESENTATION TO THE BOARD OF
COUNTY COMMISSIONERS
Okay. We are to public comments.
COMMISSIONER MAC'KIE: Actually, I added an agenda item.
CHAIRMAN CARTER: That's right.
COMMISSIONER MAC'KIE: And I have put in front of each of
you a copy and a little folder that I would urge you please to look
at. This has to do with, it says, "Building Cities of Character,"
but counties of character, states of character.
This is something that's a program I could not more strongly
endorse. I'm hopeful that it's something that the board is going
to encourage the staff to look into to see if it's a program that we
might adopt in Collier County.
The sheriff's office has adopted this and is currently
teaching this program to his patrol deputies and staff. I know
the city of Naples is about to consider a similar -- the same
program. Hopefully, they will adopt it.
If Collier County would adopt it, please look at this. It is a
real practical -- this isn't that we just all pat ourselves on the
back and say we're nice people.
This is a very practical character training program that we would
use in our staff training as a county. And hopefully we could get
the Chamber of Commerce to adopt. We could get the EDC to
adopt. We could, you know, get major employers to adopt.
My speech basically is the rate of new people who are
moving into this county everyday, they don't know that we are a
community of character. Lately we haven't so much behaved
like a community of character in some of our public official
capacity.
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February 13, 2001
We need to take a stand that this is the kind of community
we are. And this is a good way to do it.
What I'm asking, specifically, today is for the board to look
at this information, to direct staff to study it, and come back with
a recommendation of yes or no. I wish that there was somebody
from staff who could go to the March 29th through 31st -- what is
it called -- conference.
I mean, I would go and I will go if that's what you want. But
I'm already sold on this. I don't need to go.
COMMISSIONER COLETTA: I make a motion that we find the
funds to send Pam to this conference and report back to us. And
take a board member or staff with her.
COMMISSIONER MAC'KIE: Do you have somebody who
could go, Tom?
MR. TOM: Well, as an alternative, rather than having one
person go, I would suggest that we try to contact the
organization. Because it is an organization that provides this
training, and have them come here.
Let them make a presentation to the board and let the board
hear what it's about. And then you can decide whether or not it's
something you want to latch on to or not.
COMMISSIONER MAC'KIE: Because you don't need me to
go. I'd love to go because this is so good.
COMMISSIONER COLETTA: I still think it would be a good
idea for you to go.
COMMISSIONER MAC'KIE: It's a wonderful thing and I think
I could go if I wanted to submit an application under my travel
budget and all that stuff. But I'm already sold.
COMMISSIONER FIALA: Let me just ask one question. As I
quickly glance through this it seems like it also builds not only
community character, but a sense of community where people
start pulling together again instead of fighting one another.
That sounds like the direction we've all been wanting to
head anyway.
CHAIRMAN CARTER: Well, the sheriff's department has
done this. And when they were here working the sheriff's
department, they made a presentation to the President's Forum
of South Florida. And, Tom, I don't know if you were at that
meeting or not. I believe you were.
So I'm a big supporter of this program and would hope that --
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February 13, 2001
I think the right idea is bring them here. Let them make a
presentation to the board and determine what you want to do.
COMMISSIONER MAC'KIE: It's a program with measurable
results.
COMMISSIONER COLETTA: I still think it would be a good
idea for Pam -- you still have some travel budget left, don't you?
CHAIRMAN CARTER: Boy, you really want her to go to that
meeting. Get Pam out of town.
COMMISSIONER MAC'KIE: What are you planning on doing
while I'm out of town?
COMMISSIONER FIALA: Can we keep these instead of
handing them back.
COMMISSIONER MAC'KIE: Yes. They are for you and I hope
you'll study them. And I guess that was sufficient direction,
Tom, did you hear that? That we want to hear from these people.
And we want staff to carefully consider -- it sounds like there's
even a majority of the board that thinks is a good idea.
MR. OLLIFF: I think after you hear the presentation we can
just finalize that and see how far and what other agencies -- CHAIRMAN CARTER: So staff direction is that you will
contact them and have them come present to us.
MR. OLLIFF: Yes, sir.
Item #11 C1
DISCUSSION REGARDING PUBLICIZING AGENDA INDEX IN
NAPLES DAILY NEWS - STAFF DIRECTED TO COME BACK WITH
INFORMATION REGARDING SAME ON FEBRUARY 27~ 2001
CHAIRMAN CARTER: All right. That takes us to public
comment.
MR. OLLIFF: You have a couple. Frank Craparo is no longer
here. He wanted to just ask the board to consider publicizing the
agenda index again in the Naples Daily News and paying
whatever the cost that might be.
As you know the Naples Daily used to do that gratis. They
decided not to do that anymore and they are simply printing an
article that has the highlighted items off of the agenda.
This gentleman says that he lives in an area where he does
not have access to channel 54 where we do scroll the agenda
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February 13, 2001
index on a regular basis and happen to find something on this
agenda that was not highlighted in the paper and was adjacent
to something that he was interested in.
COMMISSIONER COLETTA: What is the cost of that? Do you
know offhand, Tom?
MR. OLLIFF: If the board's interested in at least considering
that, I'd suggest you give me some direction to bring you back
the costs and let you consider it at the next meeting.
CHAIRMAN CARTER: So directed.
COMMISSIONER MAC'KIE: We cut it and I've wondered if
that was the right thing.
MR. OLLIFF: I'll bring that back to the meeting on the 27th.
COMMISSIONER FIALA: They can get 54 in Golden Gate,
can't they?
MR. OLLIFF: Immokalee, I know, does not have 54, and I'm
not sure of some other places.
COMMISSIONER MAC'KIE: Everglades does not.
COMMISSIONER COLETTA: They will be having 54 shortly
and I guess Everglades is heading the same way.
CHAIRMAN CARTER: Well, I think it would be wonderful to
find out what it costs and maybe the Naples Daily News would
like to participate as part of their good will and public service.
Maybe even give us a rate that would help the community.
MR. OLLIFF: So we will pass that along as your suggestion.
COMMISSIONER COLETTA: One suggestion, too, could you
also go one step further and explore what the cost would be for
the Golden Gate Gazette and the Echo?
COMMISSIONER MAC'KIE: Worth knowing.
MR. OLLIFF: Got it.
Item #1 lC2
DISCUSSION REGARDING BOB KRASOWSKI AND UPCOMING
SOLID WASTE ISSUES
Next item is Bob Krasowski, and I believe he's gone, as
well. And he just wanted to talk to you in general about some
solid waste issues. He just wanted me to relay that to you. I
think he will probably be back at another agenda.
COMMISSIONER MAC'KIE: He's touring the incinerator with
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February 13, 2001
me, FYI.
Item #11 C3
MR. KEN THOMPSON REGARDING THREATS HE HAS BEEN
RECEIVING AND CODE ENFORCEMENT ISSUES
MR. OLLIFF: Last public speaker is Kenneth Thompson.
MR. THOMPSON: I just want to know if -- I'm Kenneth
Thompson. I live at 2831 Becca Avenue. I want to know if this
thing here means he's got it.
MR. OLLIFF: We actually distributed it at the break, so it's
probably sitting on your desks at this point. COMMISSIONER MAC'KIE: What is it?
MR. THOMPSON: Didn't you give it to them?
COMMISSIONER MAC'KIE: You go ahead and ask the
question.
MR. THOMPSON: This was hand delivered to me by Guy -- I
can't think -- Guy Harrison from the Collier County Sheriff's
Department, bless his little fat heart, he's that big around and
that short. Very nice gentleman.
But I don't believe it means a thing, you know, that it says.
It says -- I been working hard to do this. And every time I call on
a contractor that comes to my house -- before I hire a contractor,
I'll call licensing, Maggie, and she'll tell me whether they're
licenses or they aren't licensed. And I can't hire them if they
aren't licensed.
Here lately -- you know, a while ago I walked in here. This
morning, that was a while ago, and all you county people, you
think that I've run over you with a Mac truck or nothing. But I'm
not going to stand here and lie to you about what I'm going to tell
you.
I'm getting tired of you, you know, of doing things to me
that's not fair. I come here the last time when I tried to tell you
that if I done any harm to anybody, I'm making amends to you.
But now since the last I've left, it's got worse.
I've been threatened. I don't like it. I went to Mr. Olive's
office, I think it was yesterday or day before, I left. And things
have gotten so crooked in Naples you can't even trust a Pepsi
machine, it'll take your money.
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February 13, 2001
So I go into the liquor store, got me a Pepsi and I left. Well,
before I got there, I got threatened seriously one time. Before I
got home, I got threatened again. And it was over if I don't quit
calling the county that they're going to do me in.
How many friends, Pam -- I don't mean no harm to you -- how
many friends you got on Orange Street?
COMMISSIONER MAC'KIE: Orange Street? I don't think --
I'm sorry I wish I could tell you I knew exactly where that is.
MR. THOMPSON: Well, everyone of them there keep telling
me that I'm going to get mine. And on lot one through five from
that bridge, from Becca Avenue, the owner of that -- I called Mr.
Reischl here one time about the man building sea walls on it all
day long, all night long.
I took pictures of it and I took it to Ms. Arnold. I'm not afraid
to tell anybody. And she keeps telling me everything I do has got
too many holes in it. Like the bar I turned it, got too many holes.
Cost another $1,500 to prove to her that there wasn't no holes in
it.
Ms. Arnold is a nice lady. I even call her some times just to
talk to her. Really, I do. But what you people are forgetting here
is, is the gifts and the money that I'm giving. I told you about
that. One of your people, code enforcement.
Since -- I don't want to hurt nobody here, but when this
zoning went through, we were there 10 years, we hold to license,
two county licenses, two state license. And I'm telling you all
these neighbors -- it didn't mean a thing to. Not one durn thing.
Way over the other side of town are coming over causing us
trouble.
And just because -- I appreciate you passing it. What we got
is what we already had. We already had it. Had it in writing. But
I went and I sat down with these people at code enforcement,
long time ago, planning and zoning, Joe Dellate.
Ms. Arnold, just as soon as she got in office, I asked him for
his resignation, Bill Bolgar. And soon as Ms. Arnold got in there,
she went right to work on me. And it don't seem it's going to
stop.
Now, everybody in that neighborhood, all around this area,
even a lot of you people, hate me for what I'm doing. But you
going to have to hate me.
COMMISSIONER DONNA: I don't know what you're talking
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February 13, 2001
about. What are you doing?
MR. THOMPSON: Lot of these things going on here is down
the street. I got a fellow on Orange Street. The other day I was
busy doing something in the yard and he come running up to me
and said, "You know the guy down there that's pouring
concrete?" I didn't even know he was doing nothing. Well, he's a
little tipsy, you know what I mean?
Then he goes right back down the street and tells the man
down there that the guy up there's calling code enforcement on
you. I didn't even know he was down there.
My wife and I, we went down to try to explain to the fellow,
the guy over here, is running up there telling me all this stuff and
I don't care what he does.
CHAIRMAN CARTER: We kind of need to have you wrap up if
you would, please.
MR. THOMPSON: Yes, sir, I would. I been wrapping up all
day long here with the gophers and all this kind of stuff.
We got a piece of property -- you can not move them. You
can't move them. They'll try to go home and they'll get killed.
But I just wish you would have these people to stop this
code enforcement or any place else. And way back there when
these people were having me to stand guard and turning these
people in. Calling code enforcement.
Well, I can tell you how many people -- if you want there
names -- I will never tell you, I don't disclose on nobody like that
-- that's taking gifts from me, hauling it off and doing great things
that I thought I was doing them a great deed.
I love to do you a favor. I love to give you flowers. I think
that's beautiful women -- ladies like flowers.
COMMISSIONER MAC'KIE: But you know you can't because
we're elected and we can't --
MR. THOMPSON: No, I was told I couldn't do it. You
couldn't even accept a Christmas card. You couldn't do nothing.
I like to do things like that.
And I do -- I see people along the road that work for the
county, I feel so sorry for them and I give them money. This last
time was a roll this big. But it will never happen again.
I can't get my property fixed. I keep calling Bob Petersen.
He says, "1'11 do it today; I'll do it tomorrow." He does nothing.
So I called him again this morning. So maybe that's what you
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February 13, 2001
accusing me of calling people. But from now on -- I'm going to
leave here today and if I catch one more guy building anything,
he's going to turn it in. I want them to understand that.
What I do I do it honestly and I think that's what that paper
right there stands for. And where I come off the reservation, I do
to you as you do to me. You leave me alone, I'll leave you alone.
So, Ms. Mac'kie, I just wish you wouldn't keep doing things
to me. Because I'm having people come to me and telling me
that you're working in Ft. Myers with people up there, that got
businesses up there that have been here in Naples. And you
can't do things like that.
COMMISSIONER MAC'KIE: I wish I had some clients left. I
don't have, not one client left.
MR. THOMPSON: And there was one thing I come to you and
I told you --
CHAIRMAN CARTER: I appreciate your concern --
MR. THOMPSON: Yeah, I know you do.
CHAIRMAN CARTER: -- and I thank you for sharing that with
us, but I don't know where we're going to go with the rest of this.
Thank you for sharing what you feel.
MR. THOMPSON: Thank you and have a good lunch. Don't
eat no tortoises 'cause they will come back.
CHAIRMAN CARTER: Okay. We're going to move to -- any
other public comments?
MR. OLLIFF: No, sir.
Item #12C1
ORDINANCE 2001-03, CREATING THE COLLIER COUNTY
COASTAL ADVISORY COMMITTEE - ADOPTED WITH CHANGES
CHAIRMAN CARTER: All right. Let's move to item -- under
Advertised Public Hearings, C1, adoption of the ordinance
creating the Collier County Coastal Advisory Committee.
COMMISSIONER HENNING: I'll go ahead and make a motion
to adopt the --
MR. OCHS: Mr. Chairman, members of the board, if I may.
For the record, Leo Ochs, public services administrator. I'll be
very brief. I do have one staff change to recommend to the
proposed ordinance having to do with section 3, appointment of
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members.
That change came out of a meeting convened late last week
by Commissioner Fiala with representatives of the city of Naples
and city of Marco Island. And the nature of the recommended
change is as follows: In the current ordinance, both cities have
the option of submitting a list of recommended candidates for
appointment to the county commission. And, of course, the
commission has the ultimate authority to appoint all members.
The proposed change would allow both cities to recommend
candidates and for the board then to go ahead and accept and
then appoint those members recommended by both
municipalities.
COMMISSIONER MAC'KIE: Now, that's much better. They
basically tell us who they want.
COMMISSIONER FIALA: Right.
MR. OCHS: Yes. And our only stipulation would be that as
long as that's consistent with the balance of the ordinance,
because this is a technical advisory committee. And we are
looking for individuals with certain types of background and
experience.
With that one change we would recommend approval.
CHAIRMAN CARTER: Does that mean the city could appoint
three city council people, could appoint three county
commissioners.
COMMISSIONER MAC'KIE: Only if they have the expertise
though.
COMMISSIONER COLETTA: It's still our call, the final part.
CHAIRMAN CARTER: I really wish that we wouldn't have
any elected officials on that committee.
COMMISSIONER MAC'KIE: Well, me too.
MR. OCHS: Well, staff obviously concurs with that,
Commissioner, but I would have to defer to Mr. Weigel for some
additional comments.
COMMISSIONER COLETTA: I'm curious as to why that would
be, Jim?
CHAIRMAN CARTER: Because I would rather have advisory
people there that have no political agendas. That they would be
there strictly on a basis of technical expertise and knowledge of
those issues versus having some political agenda which
sometimes happens when you have elected officials.
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MR. OLLIFF: And one of the reasons, just so you know why
this was created in the first place, was to try and depoliticize
this whole issue. So that's why the nature of this committee is
very technical in nature. And if you look at the qualifications and
criteria for selection on this committee, it is primarily
engineering beach related work and experience. And that's the
kind of person we're looking for on these committees.
COMMISSIONER MAC'KIE: And if there happens to be a
person who is elected to office in either city who has those
qualifications, they shouldn't be excluded from participating, but
it's clear that you can't -- I would not be qualified to serve on that
committee.
COMMISSIONER FIALA: I think we could suggest to them --
as I met with the cities of Marco and the cities of Naples, in one
of the friendliest meetings I think we've had in a long time, in a
great spirit of cooperation.
We sorted out what was important to us. And I was so
pleased with their willingness to reconfigure this committee.
Actually, put to bed the first one and begin a whole new
committee. I would not want to tell them who to put on there,
but I would like to suggest that if we could try to get people from
our community who are well-versed in beach renourishment, fine,
but if they prefer --
COMMISSIONER COLETTA: We could make it a requirement
and if they are well-versed on the --
COMMISSIONER MAC'KIE: Well, it is a requirement that's
currently drafted. So basically, all that Leo's telling us --
CHAIRMAN CARTER: It's our job to police it and then I think
we have a right to question anybody who would be there and may
not have those credentials.
COMMISSIONER HENNING:
process and we could finish it.
COMMISSIONER MAC'KIE:
recommended, Leo?
They could still start the
Isn't that what you
MR. OCHS: Yes. Under the change proposed, both
municipalities would submit a list of candidates for appointment
and the board would accept and then go ahead and appoint those
candidates.
CHAIRMAN CARTER: I think it's our obligation then to stay
with the criteria with those who are appointed.
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February 13, 2001
MR. OCHS: Right. And I think that was understood in the
meeting.
CHAIRMAN CARTER: I have no questions. Their input, I
think, is great. I think they should have the right to do that.
COMMISSIONER MAC'KIE: They should have their people
within the qualifications --
CHAIRMAN CARTER: With the qualifications, that's all I'm
asking.
COMMISSIONER FIALA: And I'd like to make a motion to
accept this ordinance as amended.
COMMISSIONER MAC'KIE: Second.
CHAIRMAN CARTER: All in favor signify by saying aye.
Opposed by the same sign.
(No response.)
CHAIRMAN CARTER: Motion carries 5-0. Thank you.
MR. OLLIFF: I need to make just a point for the record that
Harry Cowin, the chairman from Marco Island, was here. He was
here and just left word with me that he was here to support the
ordinance as it was amended.
CHAIRMAN CARTER: I knew without question he would
support that ordinance.
Item #13A2
RESOLUTION 2001-50, RE PETITION V-2000-31, DAVID AND
CHERYL SURGEON REQUESTING AN AFTER-THE-FACT
VARIANCE OF 1.4 FEET FROM THE REQUIRED 5 FOOT REAR
YARD SETBACK FOR ACCESSORY STRUCTURES TO 3.6 FEET
FOR PROPERTY LOCATED AT 2925 COCO LAKES DRIVE -
ADOPTED
All right. We are down to a pool variance.
COMMISSIONER MAC'KIE: After the fact.
CHAIRMAN CARTER: After the fact.
COMMISSIONER MAC'KIE: Bless their hearts.
COMMISSIONER COLETTA: Where it says recommendations
down at the bottom on this one, it kind of misses -- does that
correctly recommend denial? Or was that a mistake?
COMMISSIONER MAC'KIE: They recommend denial because
it technically doesn't meet the requirements for granting a
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variance. We, however, have more leeway than staff has to say,
"Even though it's outside the scope, we can approve it."
COMMISSIONER COLETTA: I know it's getting late, but I
would like to hear a little bit more on this.
CHAIRMAN CARTER: That's what we're hear for. Swear
them in.
MR. REISCHL: Fred Reischl, Planning Services. This is a
request for an after the fact variance of 1.4 feet in the Bailey
Lane PUD which to give you a quick description, Airport Road,
this is Poinsetta Village, Bailey Lane. And it's known as Coco
Lakes, but it's the Bailey Lane PUD. Blue is the location of the
parcel.
It's a rear yard setback of five feet that's required. And you
can see on here, the yellow is the house and the pink is the
accessory. So far an accessory structure to have to remain five
feet from the rear lot line. And in your packet you see that the
plan that was submitted with the building permit showed the five
feet there.
Due to a construction error, the pool is 3.6 feet from the rear
property line. An encroachment of 1.4 feet.
This lot is adjacent to a 25-foot preserve easement along
that western portion of the PUD. The pool is an usual design
where edge of the pool and the cage are pretty much the same.
So the petitioner did not have an option of moving the cage, and
therefore, ameliorating it.
You can see it's one and the same. The wall of the pool, the
rear wall of the pool and the screen cage are basically the same.
Because of that design of the pool, it added to the pressure that
they had to come for a variance and not simply move the cage
back a couple of feet or 1.4 feet.
I received no calls or letters in objection and received two
letters of no objection, including one from the neighbor to the
north. And staff, because it was a construction error with no
land related hardship, we recommended denial.
However, the planning commission looked at this and
because it was adjacent to a preserve and because this
contractor had no previous variance request with the county,
they voted seven to zero to approve.
COMMISSIONER HENNING: I make a motion we grant the
variance.
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February 13, 2001
COMMISSIONER MAC'KIE: Second.
CHAIRMAN CARTER: All in favor signify by saying aye.
Close the public hearing.
We have a speaker.
MR. OLLIFF: You have the petitioner here, but as this one is
heading down track, unless they want to try and talk the board
out of it, and you need to do ex parte.
COMMISSIONER MAC'KIE: Are you the petitioner?
MR. SURGEON: Yes.
COMMISSIONER MAC'KIE: One of the more persuasive
petitions I've ever read.
CHAIRMAN CARTER: Okay, before I can do that, I need to
close the public hearing.
COMMISSIONER COLETTA: One question. None of us
declared.
COMMISSIONER MAC'KIE: I have no disclosure.
COMMISSIONER HENNING: I have no disclosure.
COMMISSIONER FIALA: I have no disclosure.
CHAIRMAN CARTER: No disclosure.
COMMISSIONER COLETTA: Just make sure we don't have
somebody come back on us later.
CHAIRMAN CARTER: No disclosure, close the public
hearing. We've had a motion for approval and a second. All in
favor signify by saying aye. Motion carries 5-0.
COMMISSIONER MAC'KIE: And hopefully your contractor's
been paying for your hotels and your rentals or whatever else
your problems are because I would suggest you look into that.
Item #15A
BOARD OF COUNTY COMMISSIONERS' COMMUNICATIONS -
CHAIRMAN CARTER: Okay. Staff communications.
MR. OLLIFF: I have none other that just to remind the board
that Thursday at 2 o'clock we're going to kickoff the bus program
at the vo-tech center. There is certainly an open invitation for
any and all of the board members who want to be there. We've
also invited your MPO and the mayor to attend.
And I think we're issuing some press releases and some
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other issues to try and generate a little public interest.
And just to make sure the boards aware -- I'm not sure this
is very public -- but February is a free month. February is free
bus transportation month to get the public used to the system.
So as you're out telling people about how great a bus system
we're getting ready to launch, don't forget to tell them that.
COMMISSIONER MAC'KIE: I'll be there.
CHAIRMAN CARTER: Point of clarification, Tom. Is it --
somebody said you had to stand out in the street and wave the
bus down. I thought they had regular scheduled stops.
MR. OLLIFF: You have regular scheduled stops.
COMMISSIONER MAC'KIE: There are places on 41 on the
North Trail that will stop based on being flagged as opposed to
having regular stops.
COMMISSIONER FIALA: Aren't there even some places in
the gate where if the bus is going by and they're on their way to
the stop, they can wave to the bus and the bus will stop.
COMMISSIONER HENNING: Yes, that's my understanding,
too,
CHAIRMAN CARTER: Tom, can you tell me if that also
applies to Immokalee, the waiver of fees.
MR. OLLIFF: I can't tell you that. But I will get you that
information.
COMMISSIONER MAC'KIE: Why wouldn't it?
COMMISSIONER COLETTA: I would say if it didn't, I would
hope that it will.
COMMISSIONER FIALA: If it's free bus fare.
COMMISSIONER COLETTA: If there's anyone that's every
really going to appreciate the bus it's going to be Immokalee.
MR. OLLIFF: Do I take that as board direction?
COMMISSIONER MAC'KIE: That's my direction.
CHAIRMAN CARTER: I think so. I thing you've got enough
here.
COMMISSIONER FIALA: I think we're all positive on that.
CHAIRMAN CARTER: Any communication from among the
board?
COMMISSIONER COLETTA: Yes. Thank you very much for
your assistance in Golden Gate. I know the residents of Golden
Gate very much appreciate the bridge and the master plan that is
ready as we speak, getting under way.
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February 13, 2001
COMMISSIONER MAC'KIE: Bringing home the bacon.
COMMISSIONER COLETTA: You people are bringing home
the bacon for everyone. Thank you.
COMMISSIONER FIALA: Just once more to thank the cities
of Naples and the city of Marco Island for their great cooperation
in building this new beach renourishment committee.
CHAIRMAN CARTER: Commissioner Henning?
COMMISSIONER HENNING: I would like to know where
we're at with the architectural -- bringing the architect for the
Livingston Road landscaping, beautification, median.
MR. OLLIFF: I know there was an item on the agenda last
week, our last board meeting, in fact, regarding using the
existing Livingston Road MSTU. But I'll provide you an update
and I'll make sure all the members have that.
COMMISSIONER HENNING: And also one thing, too -- Mr.
Chairman, if we have any time, certain things on our schedule
that we could push them after lunch instead of before lunch. I
know that staff here needs to -- we have to consider staff.
COMMISSIONER MAC'KIE: You mean having them sit here
all day and stare into the sky is not a really good use of their
time?
COMMISSIONER HENNING: That way maybe we could get
some of the stuff that we're handling this afternoon in the
morning. Let some of these people go back to work.
CHAIRMAN CARTER: I think that's an excellent comment.
At this time, we had a time certain only in the morning only
because of an exceptional situation. I think in the future your
thoughts are well communicated.
We can try to -- we have to work on the agenda to do some
of these things differently. And we'll be having some
conversations about them.
COMMISSIONER HENNING: That's all I have.
COMMISSIONER MAC'KIE: I have one question. I want to
try to handle this delicately because it involves some litigation.
But I'm concerned about the amount of time it's taking for us to
severe a relationship with Coastal Engineering with regard to
beach projects.
I'm not suggesting that they are not qualified to do other
work in the county, et cetera, et cetera, et cetera. But, I don't
ever want to be in a position that I was in a couple weeks ago
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where I had to ask Coastal Engineering if this was good and safe
on the fifth anniversary of the day they told me it was okay to
bury the rocks.
You know, please David, do whatever you can to get us out
of that relationship with Coastal Engineering. And maybe give us
a report back at the next meeting and a status.
MR. WEIGEL: Well, if fact, I can report a little bit to you now.
And that is that of the four projects that we have related with
Coastal, they're very close to being finished. And to -- we're
attempting -- we've got mediation coming up in about six or eight
weeks as far as that goes. But we're attempting to work in our
judicial process, our court process with them so that they don't
use the activities we have with them outside of that to our
detriment or to their detriment. Trying to work it through very
carefully.
And the fact is, is that several of their projects that they're
working on -- several, not the one you're talking about -- are
unrelated to the beach sand situation.
But we have to look at the big picture of expenses. To pull
someone in short term on what's uncontested work from them at
the current time, is extremely expensive and permit
problematical with the permits that we're working under right
now,
It's not easy to just cut them off at the knees and get it over
with. But believe me, our outside counsel as well as the counsel
working in my office, have been working on this very, very
adroitly. We're trying to make it happen and end so that no one
gets hurt as well as not compromise our case in chief.
COMMISSIONER MAC'KIE: David, if there's not a way out of
this contract that has to do with the beach quality sand, that has
to do with beaches, and we're suing them over the advice they've
given us on beaches, then we need to draft our contracts better.
So that in the future, there's a paragraph that says, "And by the
way if we have to sue you over the bad advice you give us on
contract A, we can fire you without discussion on contract B if
it's related to the same topic."
I don't know. I know in the real world you could fire them.
You could fire them. You would and you'd let the chips fall
where they may as far as the litigation.
That's just my opinion, but I'm very frustrated with that.
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February 13, 2001
MR. WEIGEL: I appreciate your frustration, but if we act
inappropriately, it costs everyone including this board and the
taxpayers a lot more than if we try to handle it with our hands
firmly on the wheel as we approach this very significant
litigation. But I hear you.
COMMISSIONER HENNING: I agree, Commissioner Mac'kie.
I feel the same frustrations, but at the expense of the taxpayer, I
think I'll hold off.
CHAIRMAN CARTER: Let's not tie our hands in the
negotiations coming forward. Until we get that resolved I would
like to expediate the other, but I don't want one to jeopardize the
other.
COMMISSIONER MAC'KIE: At the same time I just have to
say this. Maybe it's because I'm a hold over from having been
advised by Coastal Engineering. We found these rocks -- and
here's a great idea -- let's bury them.
Coastal Engineering stood at that dais and told us that and I
accepted that advice. And then five years later they're up and
telling me "And this is perfectly good sand." I don't want to be in
that position again.
CHAIRMAN CARTER: Commissioner Fiala you had one other
comment.
COMMISSIONER FIALA: Just one last little comment. Along
Bayshore, the man who was in charge of the landscaping project
on Bayshore has moved from town. But they've had a problem
continuously along there and that is they haven't provided johns
and so the workers on that area have been using the lawns of
residences, and I placed a couple comments and ask them to be
put in place, and they still haven't been, and I was wondering if
we could please make sure that that's done.
COMMISSIONER MAC'KIE: County workers?
COMMISSIONER FIALA: I don't know if it was county
workers. It was people installing the sidewalks.
MR. OLLIFF: Contractors. I will just take that as part of
making sure that we're covering our --
COMMISSIONER FIALA: Thank you.
CHAIRMAN CARTER: I think we've all encountered a great
deal of frustration here today on certain issues. What I'm going
to ask is that staff continually work departmentally on issues
coming to us, legal counsel, whether it's development services,
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February 13, 2001
whether it's transportation, whether it's utilities.
Integrate your thoughts in presentations to us so that we
don't get caught going backwards and looking and saying, "Oops,
if we'd known that, this is not where we would be."
Now some of that has happened because we went through a
lot of transition. A new county manager coming in. We went
through transitions in transportation, we've had divisions
change. And I'm empathic with all that.
But my frustration is, let's not have that happen. Let's really
be sure that this board, these commissioners, get everything that
they need in a decision-making process as humanly possible.
COMMISSIONER MAC'KIE: Little Palm Island.
CHAIRMAN CARTER: Little Palm Island can be a part of
that. It's very frustrating in that situation. There's other
situations where I think it's like, if I go back to one of the
projects that was approved that I have recused myself from, I
would have appreciated that you would have had more thinking
outside of the box by staff as it was presented to you because as
the decision-makers, you may well have gone a different
direction.
I don't fault anybody. I just say that sometimes in the past,
staff has been beat up in front of this commission. They were
reluctant to say what they really wanted to say. And I don't
blame them. Who wants to stand out there and have a
commissioner carve you up because you were trying to think
outside of the box.
You have a board now that's not like that. They're not going
to second guess you or push you on areas. But we want the best
of your thinking and as inclusive as it can be so we can make the
better decisions.
Sometimes I feel like I'm dragging information out.
COMMISSIONER COLETTA: You are, Jim, and I -- same here.
If it wasn't for Norm Feeders not having a poker face and I can
more or less judge by his face. But there's a serious problem,
and I'll ask him to speak on it. I think we might lose out many
times on it.
We need the staff to be a little bit more forthwith and if
we're wrong on something, come right out and tell us.
COMMISSIONER FIALA: Perhaps you've said something to
them and now we have to earn their trust.
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February 13, 2001
CHAIRMAN CARTER: Well, that's true. I mean sometimes
they may think that we're pushing an item or an agenda item
because -- for whatever reason. I want to do that. I just really
want to know everything you think and if where I think I want to
go is not a good idea, you need to say to me, "Commissioner, I
wouldn't go there. I think that you need to think this through
because of this, this, and this."
And then I need to deal with the other parts of my life, the
political side. But if I have a solid basis from you, that other side
is far easier to deal with because I'm on solid ground for making
that decision.
So I value staff, I think you're great. Just keep giving us the
biggest picture possible and all the information we need.
COMMISSIONER MAC'KIE: In other words, even if the issue
before us is outside of your division or your department, I know
Tom has to coordinate that. But if you see an issue go ahead a
raise it and don't assume that somebody in another department
is going to raise it.
CHAIRMAN CARTER: And the other thing -- I know it's late --
but the other thing is that sometimes we get constituents -- we
get people that start with a commissioner and if they don't get
what they like, then they start going down the line until they can
maybe find somebody that'll empathize with them. And we keep
spinning issues around.
And under the Sunshine, I can't walk down to somebody's
office and say, "You know, I've had 29 meetings with these
people, and I think you ought to be careful where you're going
with it."
But I hope as part of information, and I address this to David
Weigel, but I can do information memos. Not asking for any
direction just kind of like a status of report. I've met with these
groups, here are the issues, here's what we discussed, here's
what I think we were, and I'll hand it off to you. I don't need to
be involved in that.
COMMISSIONER MAC'KIE: For example, I was twisted into a
pretzel over some of these traffic issues on Little Palm and Jim
had already cut a deal. It would have been nice if we had known
he had already met with them and this is what they've said. Can
we do that, David? Can you tell us that.
MR. WEIGEL: A commissioner can provide a memo to
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another commissioner, but there can't be any response on it,
what's coming up, whatsoever.
COMMISSIONER MAC'KIE: But if you wanted to say, "1 have
met with all these neighborhood associations, this is what came
out of that meeting for you information. He could do that?
MR. WEIGEL: He could and I think as I may have mentioned
to Mr. Coletta once, already talked about this, it would be great
practice in doing that practice to ask the county attorney or the
chief assistant as you prepare to do it so you're covered all ways
as you go forward on that.
Because it does sometimes take a little extra thought to
think "Is this coming back before the board?" In many cases,
obviously, it is going to be. And so you're right there at the edge.
You can communicate one way, but not respond back.
CHAIRMAN CARTER: I guess what you're telling me, David,
is I can summarize what took place and send it down to you. If
you're okay with that then I can distribute it to the rest of the
commissioners. All they need is information, I'm not asking them
to influence a decision.
But I don't want to be sitting -- and I know when I first came
to the board, there's some people ran in and started laying all
kinds of stuff on me. Every commissioner here already knew
they'd been through that. They could have saved me hours.
COMMISSIONER FIALA: I did a bunch of information and
here I find out when I come to the meeting, Pam had already
pulled the thing. I had no idea.
COMMISSIONER HENNING: There's so many things that
we're duplicating efforts on. I mean I've started in the direction
on the nurse thing, I've started in a direction on this. I spend
sometimes hours on it and talking to different committees. And
all of a sudden I find I've got another commissioner that's doing
the exact same thing. And it's a duplication of effort where I
could go someplace else.
Is there some legal way that we can just find out what the
other commissioners are doing?
COMMISSIONER MAC'KIE: Can I just say about that that
when I first got here, it surprised me that we didn't copy each
other on correspondence or on memoranda so that Donna would
know if I had asked Tom for some advice of for some information
about a Bayshore matter.
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And it's my observation that in the old board, the politics
were so close to the vest that you wanted to be sure you got
credit for deal A, so you didn't want anybody to know you were
working on it. So you could squeak in and get the credit.
If we aren't worried about that, and I think this board's not,
can we share our correspondence, for example?
MR. WEIGEL: Why don't I give you a memo in that regard,
because I want to point out the edges of where there may be
some issue there.
COMMISSIONER MAC'KIE: It sure would be nice if people
could know what everyone is working on.
COMMISSIONER FIALA: Anybody in the audience could get
our correspondence.
COMMISSIONER HENNING: Just stay out of my district.
COMMISSIONER MAC'KIE: They put it all in the press files.
MR. WEIGEL: Well, there could come the kind of review,
called critical review, that says, '~Nell, are we through
subterfuge communicating to each other prior to the board
meeting." So it has to be done very carefully. I mean looked at
very carefully as you approach that.
COMMISSIONER COLETTA: Can we send it to your office
and then you would give it to staff to send it on possibly. I don't
know how to do this. I don't want to get into trouble, I want to
do it right.
We've got an example where I found out I went to a meeting
with the fire chief, and prior to my meeting they had two other
commissioners there. Now, they had some real problems they
wanted to look into, but I'm kind of reluctant to start that whole
process myself and find out one of the other two commissioners
may have already started it. It would be a great thing.
I got my plate full and I'll take on whatever I have to. But if
somebody else is taking this thing on, I'd just as soon support
them and stand to one side.
MR. WEIGEL: You're in an area where you're question is not
so difficult because if you ask the question, is someone else in
this area, and they answer yes or no, that's not talking about a
particular element or decision that's coming before the board
later.
It's just an informational type of thing.
CHAIRMAN CARTER: I think administratively, within our
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own Board of County Commissioners, and really getting that kind
of stuff buried in a correspondence file, that I would like a
separate file that says if this is a memo that's been sent to the
other commissioners on something, I'd like a separate file so
that I could go through that, "Oh, Commissioner Mac'kie is doing
this, Commissioner Fiala is doing this."
At least it's information only. At least I know where I am.
COMMISSIONER MAC'KIE: You know, the absurdity of it -- MS. FILSON: We have a file like that currently, it's called
the media file.
COMMISSIONER MAC'KIE: Yes, it's the media file.
CHAIRMAN CARTER: But everything's in the media file.
MR. WEIGEL.' And those kinds --
MS. FILSON: No. Just correspondence from commissioners
to commissioners.
COMMISSIONER COLETTA.' Now Tom has a sheet that he
keeps up.
CHAIRMAN CARTER: But I mean coming to my office. I
don't want the mixed up with anything else. I want a separate
folder that says anything that's circulated to me as a
commissioner from other commissioners. I don't want it in
follow-up, I don't want it in correspondence. I want it in a
separate file because I can go to it just like that, I can look
through it and I can say, okay, I don't need to go there because
Commissioner Fiala and Commissioner Henning's working on
this.
And at least I know if I am involved in it, how they've been
involved. At least I have that information. It helps me better
understand the issues.
COMMISSIONER COLETTA: Good point.
MS. FILSON: So in addition to the media file --
MR. WEIGEL.' It may be the written memoranda or letters
you create should not be to the other commissioners, they're
always to someone on the outside or someone with whom you're
interacting and not the commissioners.
Because I think the attorney general office would have
problems with what appears to be a communication process
directly between you two. We can work with the attorney
general and probably give you a little finer detail on that. But I
see room for activity, but I also see some area for caution there.
Page 200
February 13, 2001
CHAIRMAN CARTER: Well, and I'm thinking particularly if I
met with a group of people, and I wanted the other
commissioners to know for information only, not asking for any
action, I'm not asking them to do anything, it's just for that
information. Can I circulate that internally? And it goes to the
media file, anybody can look at it.
COMMISSIONER MAC'KIE: Let me ask the question a
different way, if I do a memorandum summarizing my notes of a
meeting that I had with community last night, that is a public
record and anybody in this whole county can get that. Anybody
who wants it, can get that memo.
So can't my fellow commissioners get that memo?
MR. WEIGEL: I expect they can, it's just that it's a
distinction between creating something specifically for them.
COMMISSIONER MAC'KIE: We don't need to be writing each
other. But we need to be documenting facts and making those
facts available to other board members.
CHAIRMAN CARTER: And anybody can come in and look at
it. That's not -- it can go right to the media file. I have no
problem with that. I just would like to find a better way to
communicate with my fellow commissioners.
MR. OLLIFF: And anything you've written to anyone else, not
one of you five, is a public record which can go to the file and be
copied.
CHAIRMAN CARTER: And I remind people that anything you
send me by fax, by e-mail, letter, is all public record. Some
people get really upset. If you bring me into the picture, it is
public record.
COMMISSIONER HENNING: I even take my e-mails at home
and forward them here.
MR. OLLIFF: The other suggestion I would have for you is
oftentimes commissioners will put an item under the BCC portion
of the agenda, and they don't put a lot of backup in there to let
the other commissioners know in advance what that item's about
and what's coming up. Sometimes I will see some of you running
off to do some research or homework on something that is
probably not even the same issue.
So if you're going to put something on the agenda, I would
suggest that you put as much back up in there to let the public
and other members of the board know what the item is as
Page 201
February 13, 2001
possible.
And I will agree with you, Mr. Chairman, there are some
coordination issues that we have to deal with. Little Palm
Island, for example, and the interchange 9 master plan were
items that I will take full responsibility for.
But on the other hand, I do want to make sure the board is
aware that anytime that we make a decision here and the press
and/or the community is not happy with that decision, and we
end up catching a major backlash for it. That is not always the
staff fault either.
CHAIRMAN CARTER: And I'm not inferring that it is, Tom. I
just want to know as much as possible. And I'm not really
faulting you, I'm just saying we can get better. MR. OLLIFF: I agree.
COMMISSIONER MAC'KIE: I say quite to the contrary, two
times now. I have learned that if I had listened to staff on
Foxfire, I would have done the right thing. If I had listened to
staff on Barefoot Beach, I would have done the right thing.
So it's not that you guys don't give us good advice, we like it
so much, we want more.
COMMISSIONER FIALA: And that's right. And the good thing
is, you ask a lot of questions. I know I ask quite a few myself.
But all of those questions, what each one of us ask, we continue
to learn more. Staff is just more than willing to give us their
background.
I think sometimes you get so used to the subject, you don't
even realize somebody's not aware and you don't know how you
arrived at that decision.
So we are at least able to ask those things.
MR. OLLIFF: And as long as you're telling me you don't mind
me standing flat-footed and telling you things you don't want to
hear, then I will tell you that I don't mind standing here
flat-footed and telling you those things.
CHAIRMAN CARTER: And I tell you from my perspective,
Tom, I have no problem with that. And I would never, ever use
that against you in an evaluation process, or for David, or for
John Drury. Because I need to know. I need to know, and I'm
not going to shoot the messenger. MR. TOM: All right.
CHAIRMAN CARTER: I may not like it. I may say some
Page 202
February 13, 2001
colorful things in my office, but that's just me. When it's all done
say, well, I need to think about that.
COMMISSIONER COLETTA: I don't want to drag it out,
especially from you, David. If I'm not doing it quite right as far as
what's required, come right out and tell me. Like I mentioned
before.
COMMISSIONER FIALA: The whole group here is really
trying to strive to do the very best they can. And we're looking
for guidance and direction if we -- so if it looks like we're inviting
everybody. Apparently nobody's operating from ego here. We're
all trying to do the best job we can.
COMMISSIONER COLETTA: In the past, you must have been
really beat to death.
MR. OLLIFF: At budget time I hope that you speak loud and
clear where we need to be.
COMMISSIONER HENNING: This budget I'm not going to
have a choice.
COMMISSIONER FIALA: You're going to have to be
screaming.
CHAIRMAN CARTER: I would agree, it will be a challenge.
Okay. If there's nothing further, we stand adjourned.
***** Commissioner Mac'Kie moved, seconded by Commissioner
Fiala, and carried unanimously, that the following items under
the Consent and Summary Agenda be approved and/or adopted:
Item #16A1
RESOLUTION 2001-33, TO CORRECT BOUNDARIES OF THE
BAYSHORE/GATEWAY TRIANGLE REDEVELOPMENT AREA AND
THE IMMOKALEE REDEVELOPMENT AREA DUE TO A
SCRIVENER'S ERROR
Item #16A2
FINAL PLAT OF "ISLAND WALK PHASE FIVE B" - SUBJECT TO
CONSTRUCTION AND MAINTENANCE AGREEMENT,
PERFORMANCE SECURITY AND STIPULATIONS
Page 203
February 13, 2001
Item #16A3
PURCHASING POLICY WAIVED; SECONDARY CONTRACT WITH
COLUMBIA TELECOMMUNICATIONS CONSULTANTS FOR
INSTITUTIONAL NETWORK PLANNING AND IMPLEMENTATION
MANAGEMENT - IN AN AMOUNT NOT TO EXCEED $50,000
Item #16A4
RESOLUTION 2001-34, RE PETITION VAC-00-022,
WILSONMILLER, INC., AS AGENT FOR THE PETITION, G.L.
HOMES OF NAPLES ASSOCIATES, LTD., REQUESTING TO
VACATE, RENOUNCE AND DISCLAIM ALLEGED EASEMENTS FOR
PUBLIC ROAD RIGHT OF WAYS ACROSS PORTIONS OF SECTION
28, TOWNSHIP 48 SOUTH, RANGE 26 EAST, IN COLLIER COUNTY
Item #16A5
CARNIVAL PERMIT 2001-02, RE PETITION CARNY-2001-AR #306,
SANDRA RAMOS, OF THE COLLIER COUNTY IMMOKALEE PARKS
AND RECREATION DEPARTMENT, FOR A CARNIVAL TO BE HELD
FROM FEBRUARY 15 THROUGH FEBRUARY 28, 2001, ON
PROPERTY ADJACENT TO THE IMMOKALEE AIRPORT PARK, 520
AIRWAYS ROAD - APPLICATION FEE AND SURETY BOND WAIVED
Item #16A6
CARNIVAL PERMIT 2001-03, RE PETITION CARNY-2001-AR #298,
MR. KEN ELLIS, EXECUTIVE DIRECTOR OF THE GOLDEN GATE
AREA CHAMBER OF COMMERCE, FOR A CARNIVAL TO BE HELD
ON FEBRUARY 23, 24 AND 25, 2001, AT THE GOLDEN GATE
COMMUNITY CENTER, 4701 GOLDEN GATE PARKWAY - SURETY
BOND WAIVED
Item #16A7
BUDGET AMENDMENT RECOGNIZING THE ANNUAL
APPROPRIATION OF THE TAX INCREMENT REVENUES TO THE
REDEVELOPMENT TRUST FUND AND APPROPRIATING THE
REVENUES TO THE APPROPRIATE EXPENSE CATEGORIES
Page 204
February 13, 2001
Item #16A8
INTERLOCAL AGREEMENT WITH THE CITY OF NAPLES FOR
FUND SHARING TOWARDS CONSTRUCTION OF ARTIFICIAL
REEFS - COUNTY TO RECEIVE UP TO $12,500 PER YEAR FOR
FIVE YEARS FROM THE CITY OF NAPLES
Item #16A9 - Continued to 2/27/01
FINAL ACCEPTANCE OF THE ROADWAY, DRAINAGE, WATER AND
SEWER IMPROVEMENTS FOR THE FINAL PLAT OF "PELICAN
STRAND"
Item #16A10
FINAL ACCEPTANCE OF SEWER UTILITY FACILITIES FOR
WALKER INDUSTRIAL BOULEVARD AND RELEASE OF
PERFORMANCE SECURITY
Item #16A11
RESOLUTION 2001-35 THROUGH 43 RESPECTIVELY, FOR THE
ABATEMENT OF PUBLIC NUISANCE FOR LUIS ALFREDO &
PATRICIA ANN CARVAJAL, LOT 24, BLOCK 10, UNIT 1, NAPLES
MANOR; SOL BERLIN C/O NORMAN SOMBER, ESQ., FOR THE NW
1/4 OF THE NE 1/4 AND THE NW 1/4 OF THE SW 1/4 OF THE NE
1/4 AND THE EAST 1/2 OF THE SOUTHWEST 1/4 OF THE
NORTHEAST 1/4 LESS THE SOUTH 40 FEET THEREOF FOR ROAD
RIGHT-OF-WAY IN SECTION 32, TOWNSHIP 46 SOUTH, RANGE 29
EAST; JULIA AREVALO, LOT 13, BLOCK 12, IN PEARCE
SUBDIVISION; EVERADO & AUDELIA ARREGUIN, LOT 82, NAPLES
IMPROVEMENT COMPANY LITTLE FARMS; EDWARD J. & LA
VERDA PELC, LOT 15, BLOCK 2, UNIT 1, PART 2, GOLDEN GATE;
PAUL L. RIDDLEBERGER, JR., LOT 11, BLOCK 6, NAPLES MANOR
EXTENSION; ROSE L. CASTEEL, LOT 21, TARPON MOBILE
HOMES; JOSE LUIS & LUCILA CATETE, LOT 66, PORT-AU-PRINCE
MOBILE .HOME SUBDIVISION; AND THOMAS SANZALONE ET UX,
LOT 5, BLOCK 8, NAPLES MANOR LAKES
Page 205
February 13, 2001
Item #16B1 - Moved to Item #8B2
Item #16B2
STREET CLOSURE PERMIT FOR A BLOCK PARTY TO BE
SPONSORED BY THE IMMOKALEE CHAMBER OF COMMERCE TO
BE LOCATED ALONG MAIN STREET (SR 29) IN IMMOKALEE ON
MARCH 31, 2001
Item #16B3
BUDGET AMENDMENT RECOGNIZING CARRY FORWARD
AMOUNTS FROM FY 00 FOR THE TRANSPORTATION SERVICES
ROAD & BRIDGE FUND
Item #16B4
BUDGET AMENDMENT FOR PURCHASE OF A BUCKET TRUCK
FOR THE TRAFFIC OPERATIONS SECTION
Item #16B5
WORK ORDER NO. WD-008 TO KYLE CONSTRUCTION, INC. FOR
SR-29 CANAL CULVERT UPGRADE - IN THE AMOUNT OF $82,622
Item #16B6
CONTRACT AMENDMENT NO. I FOR PROFESSIONAL
ENGINEERING SERVICES BY WILSONMILLER, FOR SANTA
BARBARA/LOGAN BOULEVARD SIX-LANING FROM RADIO ROAD
TO PINE RIDGE ROAD - IN THE AMOUNT OF $547,503
Item #16C1
APPROPRIATIONS OF EXPENDITURES BASED ON RECOGNIZED
ADDITIONAL REVENUES RECEIVED IN SOLID WASTE FUND AND
STAFF TO RECRUIT A FULL TIME EQUIPMENT OPERATOR I
Item #16C2
Page 206
February 13, 2001
AMENDMENT NO. 3 TO PROFESSIONAL SERVICES AGREEMENT
WITH GREELEY AND HANSEN FOR THE DESIGN AND
CONSTRUCTION OF THE 30-INCH PARALLEL SEWER FORCE
MAIN ON IMMOKALEE ROAD - IN THE AMOUNT OF $61,866
Item #16C3
WORK ORDER TBE-FT-01-03 TO TAMPA BAY ENGINEERING, INC.
FOR ENGINEERING SERVICES TO RELOCATE UTILITIES
RELATED TO U.S. 41 WIDENING - IN THE AMOUNT OF $58,740
Item #16C4
TEMPORARY CONSTRUCTION EASEMENT DONATED FROM THE
MAPLEWOOD HOMEOWNERS' ASSOCIATION, INC., FOR
CONSTRUCTION OF A 20-INCH RECLAIMED WATER MAIN
Item #16C5
BID NO 00-3183 TO CONSTRUCT A 16" WATER MAIN ON RADIO
ROAD FROM SANTA BARBARA BOULEVARD TO C.R. 951 -
AWARDED TO STEVENS AND LAYTON, INC. IN THE AMOUNT OF
$607,939.50
Item #16C6
BUDGET AMENDMENT RELATED TO LEGAL FEES FOR THE ON-
GOING LAWSUIT AGAINST BOYLE ENGINEERING CORPORATION
FOR CLAIMS ARISING FROM THE DESIGN AND CONSTRUCTION
OF THE ORIGINAL NORTH COUNTY REGIONAL WATER
TREATMENT PLANT
Item #16C7
WORK ORDER NO. TBE-FT-01-02, WITH TAMPA BAY
ENGINEERING FOR WEST WINDS SYSTEM REHABILITATION
DESIGN - IN THE AMOUNT OF $69,300
Item #16D1
Page 207
February 13, 2001
AGREEMENT WITH THE COLLIER COUNTY SCHOOL BOARD TO
UTILIZE SCHOOL BUSES FOR CAMP DRIVEN BY SCHOOL BOARD
BUS DRIVERS AT REASONABLE RATES AS DETAILED IN THE
EXECUTIVE SUMMARY
Item #16D2
OLDER AMERICANS ACT CONTINUATION GRANT BETWEEN
COLLIER COUNTY AND THE AREA AGENCY ON AGING FOR
SOUTHWEST FLORIDA, INC., D/B/A SENIOR SOLUTIONS OF
SOUTHWEST FLORIDA
Item #16D3
MASTER AGREEMENT RELATING TO SERVICES FOR SENIORS'
GRANT PROGRAMS BETWEEN COLLIER COUNTY AND THE AREA
AGENCY ON AGING FOR SOUTHWEST FLORIDA, INC., D/B/A
SENIOR SOLUTIONS OF SOUTHWEST FLORIDA
Item #16D4
MEDICAID WAIVER REVISED CONTINUATION CONTRACT
BETWEEN COLLIER COUNTY AND THE AREA AGENCY ON AGING
FOR SOUTHWEST FLORIDA, INC., D/B/A SENIOR SOLUTIONS OF
SOUTHWEST FLORIDA
Item #16D5
BID NO. 00-3177, TRANSPORT AND PLACEMENT OF BEACH
COMPATIBLE SAND - AWARDED TO SOIL TECH DISTRIBUTORS
OF NAPLES, INC. IN THE AMOUNT OF $599,250
Item #16E1
RFP NO. 00-3115, "ANNUAL CONTRACT FOR TRAFFIC
ENGINEERING CONSULTING SERVICES" - AWARDED TO
VARIOUS FIRMS AS OUTLINED IN THE EXECUTIVE SUMMARY
Item #16E2
Page 208
February 13, 2001
BID NO. 00-3169, FOR ON-CALL PLUMBING EQUIPMENT REPAIR
AND MAINTENANCE - SHAMROCK PLUMBING, INC. AS PRIMARY
VENDOR AND ACRES & SON PLUMBING AS SECOND PROVIDER
Item #16E3
RFP NO. 00-3173 FOR ARCHITECTURAL SERVICES FOR THE
COURTHOUSE ANNEX, PARKING GARAGE & CHILLED WATER
PLANT - STAFF TO NEGOTIATE A CONTRACT FOR PHASE I WITH
SPILLIS CANDELA AND PARTNERS, INC. TOP RANKED
ARCHITECTURAL FIRM
Item #16E4
BUDGET AMENDMENT AUTHORIZING THE RE.APPROPRIATION
OF $50,000 FROM THE GAC LAND TRUST FOR THE DESIGN OF A
FIRE CONTROL AND RESCUE STATION TO BE LOCATED WITHIN
GOLDEN GATE ESTATES
Item #16E5
BID NO. 00-3170, FOR THE PURCHASE OF PROTECTIVE
FOOTWARE - AWARDED TO LEHIGH SAFETY SHOE COMPANY,
IRON AGE CORPORATION, VIC'S SHOE REPAIR (REDWING
VENDOR) AND TOTAL FIRE GROUP (WARRINGTON VENDOR)
Item #16F1
RFP NO. 00-3167, "DESIGN SUPPORT SERVICES FOR NEW
COLLIER COUNTY EMERGENCY SERVICES COMPLEX" - STAFF
TO ENTER INTO NEGOTIATIONS WITH HARVARD JOLLY CLEES
TOPPE ARCHITECTS WITH SCHARF & ASSOCIATES
Item #16F2
FORMAL BID PROCESS WAIVED; PURCHASE OF NON-INVASIVE
BLOOD PRESSURE AND END TIDAL CO2 DETECTOR FROM
MEDTRONIC PHYSIO-CONTROL
Item #16G1
Page 209
February 13, 2001
BUDGET AMENDMENTS 01-121~ 01-122 AND 01-135
Item #16H1
EXTENSION OF A TEMPORARY USE PERMIT FOR THE
IMMOKALEE REGIONAL RACEWAY TO OPERATE AN
AUTOMOBILE DRAG-RACING FACILITY THROUGH FEBRUARY 28,
2002
Item #16H2
PROJECT BUDGET FOR DESIGN AND CONSTRUCTION OF
INDUSTRIAL PARK INFRASTRUCTURE IMPROVEMENTS AT THE
IMMOKALEE REGIONAL AIRPORT
Item #16J 1
SATISFACTION OF LIEN FOR SERVICES OF THE PUBLIC
DEFENDER
Item #16J2
MISCELLANEOUS CORRESPONDENCE - FILED AND/OR REFERRED
The following miscellaneous correspondence, as presented
by the Board of County Commissioners, has been directed to the
various departments as indicated:
Page 210
FOR BOARD ACTION:
BOARD OF COUNTY COMMISSIONERS
MISCELLANEOUS CORRESPONDENCE
February 13, 2001
o
Satisfaction of Lien: NEED MOTION authorizing the Chairman to sign Satisfaction of
Lien for Services of the Public Defender for Case Nos.: 98-3921-MMA, 98-1933-MMA,
96-5967-MMA, RECOMMEND APPROVAL.
MISCELLANEOUS ITEMS TO FILE FOR RECORD WITH ACTION AS DIRECTED:
A. Districts:
1) Golden Gate Fire Control & Rescue District- Agenda for January 10, 2001
meeting
B. Minutes:
I) Ochopee Fire Control District - Minutes of October 2, and November 6, 2000
meetings
2) Contractor's Licensing Board Workshop -Minutes of October I 1, November
15, and December 13, 2000 meetings
3)
Radio Road Beautification Advisory Committee - Agenda for January 8,
2001 meeting, April 10, June 5, August 14, September 11, October 9,
December 11, 2000 meetings and Minutes of March 13, April 10, May 1,
June 5, August 14, September 11, October 9, November 13, December 11,
2000 meetings
4)
Immokalee Beautification MSTU Advisory Committee - Agenda for July 19,
August 16, December 20, 2000 and January 17, 2001 meetings and Minutes
of December 20, 2000 meeting
5) Golden Gate Beautification Advisory Committee - Agenda for January 9,
2001 meeting and Minutes of December 12, 2000 meeting
6) Collier County Tourist Development Council - Agenda for January 8, 2001
7)
8)
Enterprise Zone Development Agency - Agenda for May 4, August I 0, 2000
meetings, Minutes of May 4, August 10, 2000 meetings
Affordable Housing Commission - Agenda for Januar) 20, February 17,
March 16, April 20, September 21, November 16, December 14, 2000
H:Data/Format
meetings, and Minutes of January 20, February 17, March 16, April 20, May
18, November 16, December 16, 2000 meetings
9)
Collier County Health Care Review Committee - Agenda for April 12, July
26, and September 27, 2000 meetings and Minutes of May 17, July 26, and
September 27, 2000 meetings, and Notice of August 17, 2000 meeting
I0)
Community Health Care Planning & Finance Committee - Agenda for
October 25, November 15, and December 20, 2000 meetings and Minutes of
October 25, November 15, and December 20, 2000 meetings
11)
Development Services Advisory Committee - Agenda for January 5,
February 2, March 1, April 5, May 3, June 7, July 5, August 2, September 6,
October 4, November 1, December 6, and January 19 meetings and Minutes
of January 5, January 19, February 2, March 1, April 5, May 3, June 7, July 5,
August 2, September 6 October 4, and December 6, 2000 meetings
12)
Emergency Medical Services Advisory Council - Agenda for April 26, June
28, August 30, September 27, October 25, December 13, 2000 and January 31,
2001 meetings and Minutes of May 24, July 26, August 30, September 27.
October 25, December 13, 2000 meetings
13) Radio Road Beautification Advisory Committee - Agenda for November 13,
2000 meeting
14) Collier County Water & Wastewater Authority - Minutes of February 28,
April 24, July 24, August 28, and October 23, 2000 meetings
15)
Library Advisory Board - Agenda for January 26, February 23, March 22,
April 26, May 24, June 28, September 27, October 25, 2000 meetings and
Minutes for October 25, 2000 meeting
16)
The Beach Renourishment/Maintenance Committee - Agenda for June 1,
August 3, September 11, October 3, November 2, December 19, 2000 and
January 4 and 11, 2001 meetings and Minutes for August 3, September 11,
October 3, November 2, December 19, 2000 meetings
17) Hispanic Affairs Advisory Board - Minutes of November 18, 1999 and
January 27, 2000 meetings
18) Collier County Metropolitan Planning Organization - Agenda for January 12,
2001 meeting
19) Pelican Bay MSTBU Advisory Committee - Agenda for January 3, 2001 and
Minutes of December 6, 2000 meetings
H:Data/Format
February 13, 2001
Item #16L1
STIPULATED FINAL JUDGMENT RELATIVE TO THE EASEMENT
ACQUISITION OF PARCEL 362 IN THE LAWSUIT ENTITLED
COLLIER COUNTY V. TONY GUARINO, III, ET AL, (GOLDEN GATE
BOULEVARD PROJECT NO. 63041) - STAFF TO DEPOSIT THE
SUM OF $21,443.50 INTO THE REGISTRY OF THE COURT UPON
ENTRY OF THE STIPULATED FINAL JUDGMENT
Item #16L2
AGREED ORDER AWARDING EXPERT FEES, ATTORNEY'S FEES
AND COSTS AS TO PARCEL 108 IN THE LAWSUIT ENTITLED
COLLIER COUNTY V. JOSE L. REY, ET AL, CASE NO. 99-3683-CA
(GOLDEN GATE BOULEVARD, PROJECT NO. 63041)- STAFF TO
DEPOSIT THE SUM OF $5,612.62 INTO THE REGISTRY OF THE
COURT
Item #16L3
STIPULATED FINAL JUDGMENT RELATIVE TO THE EASEMENT
ACQUISITION OF PARCEL 107-T IN THE LAWSUIT ENTITLED
COLLIER COUNTY V. JOHN B. FASSETT, TRUSTEE, ET AL,
(LIVINGSTON ROAD PROJECT NO. 65041) - STAFF TO DEPOSIT
THE SUM OF $42,524.10 INTO THE REGISTRY OF THE COURT
Item #16L4
SETTLEMENT IN DUNCAN V. COLLIER COUNTY, CASES NO. 99-
1843-CA-HDH, NOW PENDING IN THE TWENTIETH JUDICIAL
CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA, PURSUANT
TO WHICH THE COUNTY WOULD PAY $150,000 AND ALL CLAIMS
AGAINST THE COUNTY WOULD BE DISMISSED
Item #16L5
RESOLUTION 2001-44, APPROVING THE ISSUANCE OF NOT
EXCEEDING $6,700,000 HOUSING FINANCE AUTHORITY OF
COLLIER COUNTY TAX-EXEMPT MULTI-FAMILY HOUSING
REVENUE BONDS, SERIES 2001 (BRITTANY BAY APARTMENTS)
Page 2t I
February 13, 2001
Item #17A - Deleted and advertised for February 27, 2001
REPEAL OF COLLIER COUNTY ORDINANCE 74-3 ESTABLISHING
THE GOLDEN GATE FIRE CONTROL DISTRICT MUNICIPAL
SERVICE TAXING UNIT IN ITS ENTIRETY
Item #17B - Deleted and advertised for February 27, 2001
REPEAL OF COLLIER COUNTY ORDINANCE 75-9 THAT CALED
FOR A REFERENDUM TO ESTABLISH THE COLLIER COUNTY FIRE
CONTROL DISTRICT ONE IN ITS ENTIRETY
Item #17C
ORDINANCE 2001-02, RE PETITION R-2000-07, D. WAYNE
ARNOLD, AICP OF Q. GRADY MINOR & ASSOCIATES,
REPRESENTING HOSPICE OF NAPLES, INC., REQUESTING A
REZONE FROM ITS CURRENT ZONING CLASSIFICATIONS OF "A'
RURAL AGRICULTURAL AND RMF-6 RESIDENTIAL MULTI-FAMILY
TO "CF" COMMUNITY FACILITY DISTRICT, LOCATED ON
WHIPPOORWILL LANE (1095 AND 1205) OFF PINE RIDGE ROAD
Item #17D
COMMERCIAL EXCAVATION PERMIT NO. 59.755 'LONGAN LAKES
TWO COMMERCIAL EXCAVATION", BOUNDED ON THE NORTH
BY IMMOKALEE ROAD, ON THE SOUTH BY VACANT LAND ZONED
AGRICULTURAL, ON THE WEST BY OCCUPIED LAND ZONED
AGRICULTURAL/MOBILE HOME OVERLAY, AND ON THE EAST BY
THE MAIN GOLDEN GATE CANAL AND THEN SPARSELY
POPULATED LAND ZONED ESTATES - WITH STIPULATIONS
There being no further business for the good of the County,
the meeting was adjourned by order of the Chair at 5:54 p.m.
Page 212
February 13, 2001
BOARD OF COUNTY COMMISSIONERS
BOARD OF ZONING APPEALS/EX
OFFICIO GOVERNING BOARD(S) OF
SPECIAL DISTRICTS UNDER ITS
CONTROL
JAME~ CHAIRMAN
ATTEST: "~' ~
~W ~'.E.~~ BROCK, CLERK
~?;At~t'a; ~' Ch4i~niln's
~. ~ '~The~e .~i~utes approved by the Board on ~-/~
as prese, ted" or as corrected
TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT
REPORTINGBY: TRACIE MOUNTAIN, GERE RIVERA AND TONI
SHEARER
Page 2t3