Loading...
BCC Minutes 05/22/2001 RMay 22, 2001 REGULAR MEETING OF May 22, 2001 OF THE BOARD OF COUNTY COMMISSIONERS 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 9:05 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: VICE CHAIRMAN: JAMES D. CARTER, PH.D PAMELA S. MAC'KIE JIM COLETTA DONNA FIALA TOM HENNING ALSO PRESENT: TOM OLLIFF, County Manager DAVID WEIGEL, County Attorney Page I COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA May 22, 2001 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. 1 May 22, 2001 INVOCATION -- Reverend Jay Kowalski, First United Methodist Church PLEDGE OF ALLEGIANCE APPROVAL OFAGENDAS APPROVAL OF CONSENT AGENDA APPROVAL OF SUMMARY AGENDA APPROVAL OF REGULAR AGENDA. APPROVAL OF MINUTES April 24, 2001 - Regular Meeting May 1,2001 -Workshop Meeting PROCLAMATIONS AND SERVICE AWARDS A. PROCLAMATIONS 1) Proclamation proclaiming May 22, 2001 as Collier County Wastewater Operations Challenge Day. To be accepted by David Fitts, Joseph Bianchi, William Combs, Dale Waller and Jon Pratt. 2) Proclamation proclaiming June as Civility Month. To be accepted by David Weigel, County Attorney. 3) Proclamation proclaiming May 20-26, 2001 as Emergency Medical Services Week. To be accepted by Lt. Marty Ginter, Paramedic of the Year. 4) Proclamation recognizing the Pine Ridge Middle School Odyssey of the Mind - State of Florida Division Champions. To be accepted by Coach Marilyn Wolpert. B. SERVICE AWARDS Five Year Attendees: 1) 2) 3) 4) Luis L. Trujillo, Transportation Mark Rothenberger, Road and Bridge Marcy Krumbine, University Extension Services Shirley Kenney, Domestic Animal Services 2 May 22, 2001 5) 6) Karen Arnold, Public Information Dewey Wallace, Utility and Franchise Regulation Ten Year Attendees: 1) 2) 3) 4) 5) Laurie Behrens, EMS Mary Cornelisse, Pollution Control Richard Schmidt, Planning Services Ramon Chao, EMS Patricia Supplitt, Facilities Management Fifteen Year Attendees: 1) Ed Perico, Building Review and Permitting C. PRESENTATIONS 1) Recommendation to recognize Guy Hall, Cruelty Investigator, Domestic Animal Services, as Employee of the Month for May 2001. APPROVAL OFCLERK'S REPORT A. ANALYSIS OF CHANGES TO RESERVES FOR CONTINGENCIES. PUBLIC PETITIONS A. Mr. Bob Krasowski regarding the Solid Waste Management Issue. Mr. Anthony P. Pires, Jr. regarding Mini Triangle Area/Gateway Triangle Redevelopment Agency. Mr. Tony Acri to have Board consider landscape enhancements at Vanderbilt Beach Road and Airport Road. COUNTY MANAGER'S REPORT A. COMMUNITY DEVELOPMENT & ENVIRONMENTAL SERVICES 1) Presentation of the Environmental Advisory Council's Annual Report. 2) Consider Resolution urging the reevaluation of the endangerment of the Manatee. B. TRANSPORTATION SERVICES 3 May 22, 2001 PUBLIC UTILITIES PUBLIC SERVICES 1) Time Certain Item - To Be Heard at 10:00 A.M. This item continued from the May 8, 2001 Meeting. Status report regarding acquisition options for property located in the Barefoot Beach Park Preserve. E. SUPPORT SERVICES 1) Authorize staff to proceed with negotiations to purchase improved property at 2373 Horseshoe Drive (Lots 14 and 15, East Naples Industrial Park). F. EMERGENCY SERVlCES G. COUNTY MANAGER 1) Consider the creation of a series of "Horizon Committees" and appointments of commissioners to existing committees to develop county policy recommendations for a number of community issues. H. AIRPORT AUTHORITY COUNTY ATTORNEY'S REPORT Recommendation that the Board of County Commissioners accept a settlement offer of $9,800.00 in the case of Kimberly D. Dalton v. Isles of Capri Fire and Rescue District, a Division of Collier County, a Local Government, Case No. 99- 534-CIV-FTM-29DNF, pending in the United States District Court for the Middle District of Florida. Approval of Legal Counsel in the case of Thomas Wajerski v. Collier County, et al. Report on Mediation and request for Board direction in the lawsuit entitled Board of County Commissioners of Collier County, a duly constituted political subdivision organized and existing under the laws of the State of Florida v. Coastal Engineering Consultants, Inc., a Florida Corporation, Michael F. Stephen, Ph.D., an individual, Michael T. Poff, P.E., an individual, Continental Casualty Company, an Illinois corporation authorized to do business in the State of Florida, T. L. James and Company, a Louisiana corporation authorized to do business in the State of Florida, Highlands Insurance Company, a Texas corporation authorized to do business in the State of Florida, Case No. 00-1901- CA-TB, now pending in the Circuit Court of the Twentieth Judicial Court in and for Collier County, Florida. 4 May 22, 2001 10. BOARD OF COUNTY COMMISSIONERS A. Appointment of members to the Collier County Coastal Advisory Committee. B. Recommendation to declare a vacancy on the Hispanic Affairs Advisory Board. C. Appointment of members to the Hispanic Affairs Advisory Board. D. Appointment of member to the Collier County Code Enforcement Board. E, Appointment of member to the Collier County Planning Commission. Appointment of members to the Bayshore/Gateway Triangle Local Redevelopment Advisory Board. Appointment of members to the 1-75 & Golden Gate Parkway Ad Hoc Advisory Committee. Appointment of member to the Rural Fringe Area Assessment Oversight Committee. I. Appointment of members to the Pelican Bay MSTBU Advisory Committee. Jg This item continued from the May 8, 200'1 Meetinq. Request for Board direction regarding Section 163.3215, Fla. Stat., verified complaint from Vanderbilt Shores Condominium Association, Inc., Vanderbilt Club Condominium Association, Inc., the Mansions Condominium Association, Inc., Gulf Cove Condominium Association, Inc., and Vanderbilt Beach and Bay Association, Inc., challenging the County's approval of SDP-2000-108 for the Vanderbilt Beachcomber Resort as inconsistent with the County's Comprehensive Plan. (Commissioner Carter) It is requested that this item be heard at a time certain: 2:30 P.M. 11. OTHER ITEMS A. OTHER CONSTITUTIONAL OFFICERS B. COMMUNITY REDEVELOPMENT AGENCY C. PUBLIC COMMENT ON GENERAL TOPICS PUBLIC HEARINGS WILL BE HEARD IMMEDIATELY FOLLOWING STAFF ITEMS 5 May 22, 2001 12. ADVERTISED PUBLIC HEARINGS - BCC A. COMPREHENSIVE PLAN AMENDMENTS B. ZONING AMENDMENTS C. OTHER 1) Approve an Amendment to Ordinance 74-50, as amended by Ordinance 90-10, to add Maximum Off-Site Discharge Rates to the Wiggins Bay Basin and the Harvey Basin, and to authorize correction of problematic surface water run-off from single family residential lots caused by elevating the lot subsequent to initial construction of the residence. 13. BOARD OF ZONING APPEALS A. ADVERTISED PUBLIC HEARINGS B. OTHER 14. STAFF'S COMMUNICATIONS 15. 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 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. A. COMMUNITY DEVELOPMENT & ENVIRONMENTAL SERVICES 1) Authorization for an EAC member to be reimbursed for expenses not to exceed $125.00 to attend the 2001 Florida Land Trust Conference. 2) Adopt Resolution supporting Area Code Nine-Four-One (941) Relief Alternative Number Four, provided for consideration by the Florida Public Service Commission. 3) Approve the Special Events Application. 4) Pursuant to Section 2.7.3.4, time limits for approved PUD Master Plans, the Collier County Board of Commissioners is requested to direct Planning 6 May 22, 2001 5) 6) 7) 8) 9) lO) 13) Services Staff to advertise a Public Hearing for the purposes of rezoning the property known as the Neapolitan Park PUD from "PUD" to "A" Rural Agricultural. Staff review and recommendations relative to Ordinance No. 95-68, as amended, also known as Airport Plaza PUD, which, according to the required PUD Status Report submitted by the Property Owner/Agent, has not commenced construction, as defined in Section 2.7.3.4 of the Collier County Land Development Code, resulting in several possible courses of action for the Board of County Commissioners to consider. Staff review and recommendations relative to Ordinance No. 94-43, as amended, also known as Lands End Preserve PUD, which, according to the required PUD Status Report submitted by the Property Owner/Agent, has not commenced construction, as defined in Section 2.7.3.4 of the Collier County Land Development Code, resulting in several possible courses of action for the Board of County Commissioners to consider. Final acceptance of Water Utility Facilities for Encore Senior Living Facilities. Request to approve for recording the final plat of "Mediterra Parcel 111" and approval of the Standard Form Construction and Maintenance Agreement and approval of the amount of the Performance Security. Request to approve for recording the final plat of "Golf Villas at Tiburon" and approval of the Standard Form Construction and Maintenance Agreement and approval of the amount of the Performance Security. Request to approve for recording the final plat of "Banyan Woods" and approval of the Standard Form Construction and Maintenance Agreement and approval of the amount of the Performance Security. Request to approve for recording the final plat of "Pelican Marsh Unit Twenty Six" and approval of the Standard Form Construction and Maintenance Agreement and approval of the amount of the Performance Security. Request to approve for recording the final plat of "Mediterra Unit Two" and approval of the Standard Form Construction and Maintenance Agreement and approval of the amount of the Performance Security. Request to approve for recording the final plat of "Brynwood Preserve" and approval of the Standard Form Construction and Maintenance Agreement and approval of the amount of the Performance Security. 7 May 22, 2001 14} 2001 Tourism Agreement between Collier County and the Marco Island Film Festival regarding the October 2001 Event. 15) Request for a recalculation of the maximum home sales price for Collier County for all Florida Housing Finance Corporation (FHFC) Programs. TRANSPORTATION SERVICES 1) 2) 3) 4) Approve a Budget Amendment to provide funds to the Golden Gate Municipal Services Taxing Unit (MSTU) Beautification Fund. 5) Approve amended No. 1 to Annual Contract for Roadway Contractors, 98- 2905, to allow additional one year renewal. 6) Approve Work Order No. WD-075 with D. N. Higgins, Inc., to install a Storm Water Treatment Device on Bayshore Drive, Project No. 31110. Approve Committee ranking of firms for contract negotiations for Professional Consulting Services for the North-South and Vanderbilt Area Planning Corridor Studies (RFP #01-3227). Approval of Collier Area Transit (CAT) Route Changes to the Red and Blue Routes. Approve request to enter into Joint Project Agreement and Memorandum of Understanding with the Florida Department of Transportation for Phase II of the design of the computerized traffic control system. PUBLIC UTILITIES 1) 2) 3) 4) S) This item continued from the May 8, 2001 Meeting. Authorize the Chairman to sign the agreement to update the maps of the well field protection zones of the County's Ground Water Protection Ordinance. Award Bid No. 01-3208 "Purchase of One (1) Vacuum Excavation System. Recommendation that the Board of County Commissioners waive formal competition and approve funding for a Preliminary System Design (PSD) for a new Operations and Capital Special Assessment Software System. Recommendation to award Surplus Sealed Bid #SO1-3225, Surplus Bid for Economy Baler, to Solid Waste and Recovery Systems, Inc. Award Contract to construct 20-inch Radio Road Reclaimed Water Main Extension to Sun Coast Underground Utility Construction Corporation, BID 8 May 22, 2001 6) 7) 8) 9) 01-3224, Project 74036. Approve payment to Gulf Bay Inc., for $7,945 for landscaping costs to Collier County Sewer District Pump Station #316.00 at Fiddler's Creek, Project No. 73051. Recommendation to award Bid #01-3233 for the purchase of trees to satisfy in-kind requirement of a Florida Department of Environmental Protection Consent Order. Funding, Waiver of Formal Competition, and Authority to Execute Contracts for Capacity Improvements at the North County Water Reclamation Facility, Project 73077. Funding, Waiver of Formal Competition, and Authority to Execute Purchase Contracts for Capacity Improvements at the South County Water Reclamation Facility, Project 73128. PUBLIC SERVICES 1) 2) 3) 4) s) 6) 7) 8) Approve a Budget Amendment for Max Hasse Community Center Project to re-budget funds that were not carried forward into the 00/01 Budget. Approve an Application to the Florida Department of State requesting a Historic Preservation Grant of $153,000 to assist with the Restoration of Roberts Ranch Pioneer Museum in Immokalee. Approve the Medicaid Waiver revised continuation contract and authorize the Chairman to sign the contract between Collier County Board of County Commissioners and the Area Agency of Aging for Southwest Florida Inc., D/B/A Senior Solutions of Southwest Florida. Award of Bid 01-3231 for the construction of Sugden Regional Park Pathway. Approval of a Resolution providing for an increase in the fee charged by the Collier County Health Department for issuance of Death Certificates, Approve a Resolution appointing officers to the Collier County Agriculture Fair and Exposition Inc. Board of Directors. Award of Bid 01-3230 to U.S. Tennis and Fitness Inc., in the amount of $68,935.00 for resurface of Tennis and Basketball Courts. Authorization to approve an Extension of an Agreement with the Southeastern Library Network (SOLINET) and permission for Chairman to 9 May 22, 2001 sign agreement. 9) Authorize the Collier County School Board to prepare the food for the Summer Food Service Grant Program. 10) Approve an application for a grant to Coastal Impact Assistance Program to clean-up the gas spill at Caxambas and also an application to the boater improvement program to refurbish the dock, benches and picnic shelters at Bayview. 11) Approve a Budget Amendment for the Installation of Additional Gates at Sugden Regional Park, Project No. 80081. SUPPORT SERVICES 1) Approve and Execute an Agreement with the Golden Gate Fire Control and Rescue District, which provides for a maximum expenditure of $12,500 from the GAC Land Trust. 2) Approve and Execute an Amendment to Agreement to provide for a maximum expenditure of $50,000 from the GAC Land Trust to initiate the design of a Fire Control and Rescue Station to be located within Golden Gate Estates. 3) Recommendation that the Board of County Commissioners Terminate Contract #99-2937 with Unifirst Corp. and Award Contract to G & K Services. 4) This item deleted s) Approve a Budget Amendment for emergency repairs to the Marco Island Tax Collector Building. EMERGENCY SERVICES 1) Approval of a Lease Agreement between Collier County and Omnipoint Holdings, Inc., for placement of a Communications Tower upon County- Owned Property. COUNTY MANAGER 1) Approval of Budget Amendment Report - Budget Amendment #01-296; #01-311. 10 May 22, 2001 17. H. AIRPORT AUTHORITY BOARD OF COUNTY COMMISSIONERS J. MISCELLANEOUS CORRESPONDENCE 1) Satisfaction of Lien: NEED MOTION authorizing the Chairman to sign Satisfaction of Lien for Services of the Public Defender for Case Nos 93- 442-CFA; 95-5828-MMA; 98-664-CFA RECOMMEND APPROVAL. 2) Miscellaneous items to file for record with action as directed. K. OTHER CONSTITUTIONAL OFFICERS 1) Extension of KPMG Contract for External Audit Services. L. COUNTY ATTORNEY 1) Approve the Settlement Agreement providing for payment by Elhanon and Sandra Combs (Property Owners) to Collier County in a Code Enforcement Appeal Case entitled Elhanon and Sandra Combs v. Board of County Commissioners, Collier County, Florida, Case No. 00-3497-CA. 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. This item requires that all participants be sworn in and ex parte disclosure be provided by Commission members. Petition VA-2001-AR-400, Don Kirby representing Handy Food Stores, Inc., requesting a 45-foot variance from the required 50-foot front yard setback for structures in an Automobile Service Station to 5 feet along New Market Road and a 25-foot variance from the required 50-foot front yard setback to 25 feet along Glades Street to allow construction of a canopy over an existing fuel pump for a property located at the Northeast Corner of the Intersection of Lake Trafford Road and North 19th Street, in Section 33, Township 46 South, Range 29 East. 11 May 22, 2001 This item requires that all participants be sworn in and ex parte disclosure be provided by Commission members. Petition VA-2001-AR-398, Don Kirby representing Handy Food Stores, Inc., requesting a 45-foot variance from the required 50-foot front yard setback for structures in an Automobile Service Station to 5 feet along Lake Trafford Road and a 23-foot variance from the required 50-foot front yard setback to 27 feet along North 19th Street to allow construction of a canopy over an existing fuel pump for a property located at the Northeast Corner of the Intersection of Lake Trafford Road and North 19th Street, in Section 32, Township 46 South, Range 29 East. This item requires that all participants be sworn in and ex parte disclosure. be provided by Commission members. Petition V-2000-39, Miles L. Scofield, requesting a 5-foot variance from the required 15-foot East Side Yard setback for dock facilities to 10 feet for property located at 11 Pelican Street East, further described as Lot 39, Isles of Capri Unit 1, in Section 32, Township 51 South, Range 26 East, Collier County, Florida. 18. ADJOURN INQUIRIES CONCERNING CHANGESTOTHEBOARD'SAGENDASHOULDBE MADF TO THE COUNTY MANAGER'S OFFICE AT 774-8383. 12 May 22, 2001 May 22, 2001 Item #3A, B,&C CONSENT, SUMMARY AND REGULAR AGENDA - APPROVED AND/OR ADOPTED WITH CHANGES CHAIRMAN CARTER: Good morning, ladies and gentlemen. Welcome to the Board of County Commissioners' meeting of May 22. If you would please rise and stand for -- the invocation will be led by the Reverend Jay Kowalski and the Pledge of Allegiance. But as we do this this morning, we would like you to pause for a moment of -- of silence. We lost Gary Arnold from our emergency services division this weekend. He passed away from a heart attack after 15 hours on the job. We extend our prayers and thoughts to his family, Katy Arnold, many of you know, and to his daughter Katlin, who -- Gary is going to be solely -- sorely missed in this community. And if you would join me in a moment of silence of prayer to remember them and to keep them always in your thoughts in the coming days. (Moment of silence.) REVEREND KOWALSKI: Gracious and loving Creator, on this day, obviously as we start this meeting, we pause to remember this family and pray your blessings, your peace, and your comfort might be with them during this terrible time of grief. But we also invite your spirit to be here with us as we give you thanks for the honor and privilege and responsibility of living in this beautiful community. You, better than we, know that while there are many things this community needs right now, we could sure use some rain. Really, we could use a lot of rain. But today especially we ask that your presence might be here that your wisdom might fill each of those who make decisions today, that they'll make the best decision for the community and for we that fill that community. We also pray that your spirit would be here that all Page 2 May 22, 2001 that might be done and accomplished today might be filled with justice and compassion. So we invite you here to rest in the hearts and the minds and the souls of those who decide today. And we give you thanks for all of your blessings and your presence today. Amen. (The Pledge of Allegiance was recited in unison.) CHAIRMAN CARTER: Good morning, Commissioners. You look like you're all ready to go to work. We have a busy agenda today. Mr. Olliff. MR. OLLIFF: Good morning, Mr. Chairman. Good morning, Commissioners. We have a brief change list for you this morning. I'll walk you through it. First item on your change list is a continuance. It is Item 16(A)5 off of your consent agenda. It is a reconsideration of an -- an older uprooted PUD where at staff's request we're asking that item be continued to your June 12th meeting. This one moved from the consent agenda to the regular agenda. Item 16(A)14 will become 8(A)3. That is the 2001 tourism agreement between Collier County and the Marco Island Film Festival regarding their October 2001 event. Again, that's at staff's request. The third and last change is simply a no change. A revised resolution was provided to you this morning in conjunction with Item 16(A)15 on your consent agenda. It was -- frankly, it's some ministerial cleanup language of the resolution that was provided by the county attorney's office. No change in the intent or the -- the actual item was made by any of the changes in the resolution, but we just needed to change the backup for that single item. That's also done at staff's request. And, Mr. Chairman, that's all the changes I have. CHAIRMAN CARTER: Okay. Thank you, Mr. Olliff. Mr. Weigel. Page 3 May 22, 2001 MR. WEIGEL.' Thank you. No changes. But just a point of information that Agenda Item 9(C), which is the discussion of the rocks-on-the-beach case, our outside counsel will be here. We have told them that we would probably not need them prior to 10:30 just to let you know. CHAIRMAN CARTER: All right. Thank you. Changes by commissioners: Commissioner Coletta? COMMISSIONER COLETTA: None. CHAIRMAN CARTER: Commissioner Fiala. COMMISSIONER FIALA: None. CHAIRMAN CARTER: Commissioner Henning. COMMISSIONER HENNING.' None. CHAIRMAN CARTER: Commissioner Mac'Kie. COMMISSIONER MAC'KIE: None. Go for four. CHAIRMAN CARTER: Okay. Go for five. I have none. COMMISSIONER MAC'KIE: Motion to approve the consent summary and regular agenda as noted. COMMISSIONER FIALA: Second. CHAIRMAN CARTER: Second -- first by Commissioner Mac'Kie, second by Commissioner Fiala. All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Opposed by the same sign? (No response.) CHAIRMAN CARTER: Motion carries. Page 4 AGENDA CHANGES BOARD OF COUNTY COMMISSIONERS' MEETING May 22, 2001 CONTINUE: Item 16(A)5 to June 12 BCC Meetin.q: Staff review and recommendations relative to Ordinance No. 95-68, as amended, also known as Airport Plaza PUD, which, according to the required PUD Status Report submitted by the Property Owner/Agent, has not commenced construction, as defined in Section 2.7.3.4 of the Collier County Land Development Code, resulting in several possible courses of action for the Board of County Commissioners to consider. (Staff request.) MOVE: Item 16(A)14 to 8(A)3:2001 Tourism Agreement between Collier County and the Marco Island Film Festival regarding the October 2001 event. (Staff request.) CHANGE: Item 16(A)15: (Change only in language; no change of intent within the Resolution.) Request for approval of recalculation of the maximum home sales price for Collier County for all Florida Housing Finance Corporation (FHFC) programs. (Staff request.) May 22, 2001 Item #4 MINUTES OF THE APRIL 24, 2001 REGULAR MEETING AND MAY 1, 2001 WORKSHOP - APPROVED AS PRESENTED COMMISSIONER MAC'KIE: Motion to approve the minutes of April 24th and May 1st, 2001. COMMISSIONER HENNING: Second. CHAIRMAN CARTER: Okay. A motion by Commissioner Mac'Kie, second by Commissioner Henning. All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Motion carries 5-0. Thank you. Item #5A1 PROCLAMATION PROCLAIMING MAY 22, 2001 AS COLLIER COUNTY WASTEWATER OPERATIONS CHALLENGE DAY - ADOPTED Proclamations and services awards. First one will be for May 22nd is Collier County Wastewater Operations Day. Commissioner Coletta. COMMISSIONER COLETTA: Thank you. Would the people from wastewater please come forward, stand up in front of the dais. CHAIRMAN CARTER: The red-shirt guys. All right. COMMISSIONER COLETTA: Red-shirt days. Welcome, gentlemen. CHAIRMAN CARTER: Face the cameras. Let everybody out there see you. COMMISSIONER COLETTA: Okay. Whereas, the citizens of Page 5 May 22, 2001 Collier County operate a community-owned utility; and, Whereas, the effectiveness and skill of the Collier County wastewater personnel help to provide reliable service to our homes and business at the lowest possible costs; and, Whereas, on April 17th, 2001, a team of Collier County wastewater department employees completed and finished as co-champions overall in the Florida Water Environmental Association Wastewater Operation Challenge Competition, competing with teams across the State of Florida; and, Whereas, the Collier County Wastewater Operations Challenge Team won the right to compete in the National Water Environmental Federally Operational Challenge Competition against 40 teams from across North America to be held in Atlanta, Georgia, in October 2001; and, Whereas, our 2001 Collier County team of Dave Fitts, Joseph Bianchi, William Combs, Dale Wall -- Waller, John -- John Pratt have made a positive contribution to our county. And, therefore, be it proclaimed by the Board of Collier County Commissioners of Collier County, Florida, that May 22nd, 2001, be designated as Collier County Wastewater Operations Challenge Day in Collier County and invite all citizens to loin together in honoring these employees of Collier County public utilities and the citizens of Collier County. Thank you. I so move. COMMISSIONER MAC'KIE: Second. CHAIRMAN CARTER: Okay. Motion by Commissioner Coletta, seconded by Commissioner Mac'Kie. (Applause.) MR. OLLIFF: Mr. Chairman, while you're handing out certificates, I have to point out these guys are good. I mean, they will end up competing with communities in the likes of Los Angeles County when they go to the national competition. They Page 6 May 22, 2001 work on their own time at their events. And I'll tell you there's a guy on our team that can cut a pipe faster than anybody that you'll ever see. COMMISSIONER MAC'KIE: We are sure lucky and proud to have you. MR. CHEATHAM: For the record, Joe Cheatham, wastewater director. It's always good to have positive news about wastewater. We've had our shares of ups and downs this past season. But just, again, thanks for the support from the board and from public utilities for supporting this team. This team finished first place in the pump maintenance event, first place in the collections event, second place in the lavatory event, which shows that these guys aren't lavatory and other kinds of skills. This competition helps to promote teamwork, promotes cross-training and really benefits the -- Collier County as a whole for recognizing the county public utilities. And, again, thank you for your support. CHAIRMAN CARTER: Thank you. (Applause.) CHAIRMAN CARTER: Let's have -- we've got a number of proclamations this morning, and I hope the newspaper might reserve the front page and put all of those there because we've had some great things happen in this community which is exemplified by our first proclamation. Item #5A2 PROCLAMATION PROCLAIMING JUNE AS CIVILITY MONTH - ADOPTED The second one this morning is proclaiming June as Civility Month to be accepted by David Weigel, county attorney. And Commissioner Fiala will read the proclamation. Page 7 May 22, 2001 COMMISSIONER FIALA: Thank you, David. Whereas, the open exchange of public discourse is essential to the democratic system of government; and, Whereas, as a cornerstone of democracy Americans have observed certain rules of behavior generally known as civility; and, Whereas, civility derived from the Latin words civitas, meaning city, and civis, meaning citizen, is behavior worthy of citizens living in the community or in common with others; and, Whereas, displays of anger, rudeness, ridicule, impatience, and a lack of respect and personal attacks detract from the open exchange of ideas, prevent fair discussion of the issues, and can discourage individuals from participation in government; and, Whereas, civility can assist in reaching consensus on diversus -- diverse issues and allow for mutually respectful ongoing relationships; and, Whereas, civility can uplift our daily lives and make it more pleasant to live in an organized society; and, Whereas, the city, county, and local government law section of the Florida Bar urges the adoption of a pledge of civility by all citizens of the State of Florida. Now, therefore, be it proclaimed by the Board of Commissioners of Collier County, Florida, that the month of June be designated as Civility Month and calls upon all citizens to exercise civility toward each other. Done and ordered this 22nd day of May. What a great idea, isn't it? COMMISSIONER HENNING: Motion to approve. CHAIRMAN CARTER: Motion to -- by Commissioner Henning, second by Commissioner Mac'Kie. All in favor signify by saying aye. (Unanimous response.) Page 8 May 22, 2001 CHAIRMAN CARTER: Motion carries. (Applause.) COMMISSIONER FIALA: How can we check everybody out to make sure they do this? Good, thank you. CHAIRMAN CARTER: Yes, please do, Counselor. MR. WEIGEL: Thank you, Mr. Chairman and Commissioners. It's a pleasure to be before you standing rather than sitting during what will be a long day, I expect. But on behalf of the local government bar section of the Florida Bar, it's my privilege to represent and be recipient of the proclamation concerning civility. As you heard, the proclamation is rather general. It talks about civility to all. The county attorney's office likes to think that in its deliberations, in its work with its client, with the public, with the interested en -- entrepreneurs that come for government business, we can give as well as take. We hope to do it and hope that you follow us and note that we do it in a civil way. I had my chief assistant county attorney with me to receive the proclamation for two reasons: one, he's a trusted assistant; but, two, if you ever saw the face of civility, I think you've seen it with Ramiro, who also serves as the current president of the local bar association. So we believe we're long in service. We hope that -- that you respect us as we go forward to show you civility from our office. We'll try to set the example for the rest of you. We know you'll be right there with us too. Thank you. CHAIRMAN CARTER: Okay. Thank you, David. (Applause.) Item #5A3 PROCLAMATION PROCLAIMING MAY 20-26, 2001, AS EMERGENCY MEDICAL SERVICES WEEK - ADOPTED Page 9 May 22, 2001 CHAIRMAN CARTER: Okay. The next proclamation is May 26 will be known as Emergency Medical Services Week. It will be accepted by Lieutenant Marty Glintner, paramedic of the year. Commissioner Henning. COMMISSIONER HENNING: May I call Jorge Aguilera up to the dias, please. George, thanks for being here to accept this proclamation. Whereas, Collier County EMS department paramedics and paramedic/firefighters care for the victims of sudden life- threatening injuries and illnesses of understanding stressful conditions in high-risk situations to save the lives of others; and, Whereas, EMS paramedics and paramedic/firefighters must rapidly assess, manage, and effectively provide care in unpredictable situations requiring life-and-death judgments; and, Whereas, EMS paramedics and paramedic/firefighters are often -- first contact many residents and visitors of Florida and with healthcare system, and these personal providing -- personnel providing education and assessments, prevention, and referral services, in addition to their own emergency activities; and, Whereas, the residents and visitors of the State of Florida benefit daily from the efforts; and, Whereas, it is critical that the general public be made aware of, understanding, and support and effectively using its local emergency medical service system; and, Whereas, recognizing it's due to all emergency medical professionals serving in very -- a variety of roles for the unselfish dedication to Florida's residents and visitors. Now, therefore, be it proclaimed by the Board of County Commissioners of Collier County, Florida, that the week of May 20th through the 26th be designated as Emergency Medical Service Week. Page 10 May 22, 2001 Done on this order, 22nd day of May, 2001. Motion to approve, Mr. Chairman. COMMISSIONER MAC'KIE: Second. CHAIRMAN CARTER: I have motion to approve by Commissioner Henning, second by Commissioner Mac'Kie. All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Opposed by the same sign? (No response.) CHAIRMAN CARTER: Motion carries. (Applause.) MR. AGUILERA: Mr. Chairman, members of the board, I just want to take this opportunity on behalf of the Collier County EMS department to thank you for this proclamation, as well as for all your support in the past, in the present, and hopefully also in the future. Thank you. CHAIRMAN CARTER: Okay. Thank you, sir. Item #5A4 PROCLAMATION RECOGNIZING THE PINE RIDGE MIDDLE SCHOOL ODYSSEY OF THE MIND - STATE OF FLORIDA DIVISION CHAMPIONS - ADOPTED I have the privilege of reading the next proclamation. And I'm going to tell you this is one of the -- I think one of the most outstanding group of young people we could recognize in this community. And I am so very, very proud of them. And it just came to my attention about 2 1/2 weeks ago, their achievement. This -- this proclamation is recognizing the Pine Ridge Middle School Odyssey of the Mind State of Florida champions. We sent three teams up there. This is the state champion, and they're going to the international competition at the University of Page 11 May 22, 2001 Maryland in June to represent -- to represent us, and I think this is just fantastic. So I want to call up here Coach Marilyn Wolpert and the team, and I want them to come up here, and I want everybody to see what a fine group of young people are doing in this community and how very, very proud we need to be of these people and just send them with Godspeed to where they're going to go and represent us so very, very well. (Applause.) CHAIRMAN CARTER: Whereas, Odyssey of the Mind is a nationally recognized extracurricular school-annexed program in which elementary through college-age students may as a team compete in solving specified and complicated problems; and, Whereas, Pine Ridge Middle School has a team doing the Achilles heel problem in Division 2 which consists of building an 8-inch-high balsa-wood structure weighing no more than 15 grams, together with devising and designing a skit and set relating to the weight problem; and, Whereas~ team members Brad Bailey, Erica Bass, James Campbell, Marissa Coffers, Alex DiNardo, Kevin Wolpert and -- and Kyle Zumstein coached by Greg and Marilyn Wolpert were awarded first place in the Florida State Regional competition, later winning the State of Florida division championship in the final competition; and, Whereas, as a result the team will be competing in the worldwide final competition June 2 to 5 at the University of Maryland in College Park; and, Whereas, the achievement deserves public recognition as a fine example of the positive things young citizens can accomplish through hard work, ingenuity, and teamwork. Now, therefore, be it proclaimed by the Board of County Commissioners of Collier County, Florida, that the team members and coaches are recognized for their extraordinary Page12 May 22, 2001 accomplishment. For and on behalf of the citizens of Collier County, we heartily congratulate the team members and their coaches and wish them good luck in the upcoming Odyssey of the Mind worldwide competition. Furthermore, we declare by this proclamation that the team members and coaches are ambassadors of goodwill for Collier County, Florida, in their travel to and competition at College Park, Maryland. Done and ordered this 22nd day of May 21 -- 2001, Board of County Commissioners, Collier County, Florida, James D. Carter, Ph.D., chairman. I move for acceptance. COMMISSIONER MAC'KIE: Second. CHAIRMAN CARTER: Moved and accepted. All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Opposed by the same sign? (No response.) CHAIRMAN CARTER: Motion carries. (Applause.) CHAIRMAN CARTER: Very, very proud of you. COMMISSIONER MAC'KIE: Congratulations. MS. WOLPERT: I'll tell a little bit about the program. CHAIRMAN CARTER: You take this proclamation over there for your team. MS. WOLPERT: First of all, I want to thank you all, thank the board for having us here today. I want to thank Mr. Brenco, Mr. DeNiro (phonetic) at Pine Ridge for their support of Odyssey of the Mind. I want to thank the many local businesses who've stepped up and offered their generous assistance as we prepare for this trip. And I'd like to tell you a little bit about Odyssey of the Mind so you know what it is. In Odyssey of the Mind students learn to Page 13 May 22, 2001 work together. They build team -- team-building skills. Each year five new competitive problems are solved -- assigned for the teams to solve. The long-term problems are solved over a period of several months. They're working weekends, after school. Some of the problems are technical in nature while others are artistic or performance based. As the students work in teams, they learn to respect each other's individual strengths and talents, and they use them to provide their solutions with artistry, technological skill, humor. Whatever their talents are, they use them. They build their own scenery. They design and create their own costumes. They write their own scripts. They compose and perform songs, whatever they choose to enhance the presentation of their solution, as they will be judged not only on the quality of their solution but on the style of their presentation. Throughout the year they are also learning and practicing creative problem-solving skills and divergent thinking. When presented with problems, they learn how to identify challenges and to think creatively to solve those problems. They are free to express their ideas and suggestions without fear of criticism and are rewarded at competition for their ability to think outside the box. My husband and I have been coaching Odyssey of the Mind for about five years now. We've been proud of each and every team that we've worked with. They are amazing kids; they can do amazing things. This team is spectacular. They've worked hard; they've got wonderful creativity and talents. They've won two consecutive state championships, and we are thrilled that they will be representing Florida at the world champ -- world finals coming up. A couple of them -- Alex and Marissa have just a couple of things to say real quickly. Page 14 May 22, 2001 MS. COFFERS: Hi. My name is Marissa Coffers, and this is my seventh year in the Odyssey of the Mind program. In my opinion, Odyssey of the Mind is a beneficial program that helps teach students people skills and teamwork, along with thinking divergently. Our problem this year, known as Achille's heel, was to design a balsa-wood structure weighing no more than 15 grams to hold as much weight as possible while being rammed repeatedly by a team-designed 1-pound vehicle. If you can imagine, 15 grams is about the weight of 2 pencils. MR. DINARDO: At the state competition, our structure held 705 pounds, the highest weight held in the State of Florida. I am Alex DiNardo, and this is my fifth year in the Odyssey of the Mind program. The Odyssey program is an opportunity for adolescents like myself to express our creativity and develop our work ethic. I feel I am speaking for everyone who ever participated in the program when I say that Odyssey of the Mind is a fun, beneficial experience to all. Thank you. CHAIRMAN CARTER: Thank you. COMMISSIONER MAC'KIE: Thank you. (Applause.) CHAIRMAN CARTER: I can't say enough. I am really touched by what this group does, and I want to compliment the business community, Economic Development Council, who in less than about 2 1/2 weeks, along with the parents, we need to reach $7,000. I understand we're pretty close to that goal. I think we've got 6,000 right now. They are to be complimented where your business community, your school system, parents, everybody work together to create and build and help young people. This -- this is our future, 25 percent of our population, 100 percent of our future. If this is our future, we are in great shape. Page 15 May 22, 2001 COMMISSIONER FIALA: Yes. (Applause.) Item #5B1 EMPLOYEE SERVICE AWARDS - PRESENTED CHAIRMAN CARTER: Okay. We now move to service awards. Commissioner Mac'Kie. COMMISSIONER MAC'KIE: Okay. Are we going to go down and do those? CHAIRMAN CARTER: We're going to do whatever you want to do. It's your show. COMMISSIONER MAC'KIE: Well, let's go do it then. MR. OLLIFF: Mr. Chairman, as the board is working their way down to the floor, I'll go ahead and take the opportunity to call your five-year attendees. The first is Luis Trujillo -- Luis is with your transportation department -- followed by Mark Rothenberger from your road and bridge department, followed by Marcy Krumbine from the university extension services and followed by Dewey Wallace or Bleu Wallace in utility and regulation franchise. Mr. Chairman, this morning we also have -- we also have three ten-year attendees: Mary Cornelis (phonetic) -- Mary Cornelisse. My fault, Mary. Ramon Chao from EMS, and Pat Supplitt from facilities management. Mr. Chairman, this morning we have one familiar face who is our 15-year attendees, Ed Perico from your building review and permitting department. COMMISSIONER MAC'KIE: (Applause.) COMMISSIONER MAC'KIE: He gets combat pay. Bless you for hanging in there with us. Paget6 May 22, 2001 Item #5C1 GUY HALL, CRUELTY INVESTIGATOR, OF THE DOMESTIC ANIMAL SERVICES DEPARTMENT - RECOGNIZED AS EMPLOYEE OF THE MONTH FOR MAY, 2001 And if I could just move on to the employee of the month, I'd like to ask Guy Hall to come forward. Guy is the cruelty investigator with domestic animal services, and he has been elected employee of the month for May 2001. Guy has been employed with the county in domestic animal services since 1996. He obtained certifications at the top of his class and is admired by his colleagues and his director. He's state certified as an animal control officer, and Guy also completed training and national certification in animal cruelty investigation through the University of Missouri Institute of Law. Part of Guy's accomplishments included a scholarship to the equine investigation academy -- did I say that right? MR. HALL: Uh-huh. COMMISSIONER MAC'KIE: Guy's knowledge of his job and ability to diffuse the situation allow him to provide excellent service and perform a difficult job in a professional manner, probably one of the most difficult jobs in this county and certainly so important to all of us. Guy, thank you for your work, and we'd like to give you this $50 check, a letter for your personnel file, and a plaque for employee of the month 2001, Guy Hall. Thank you. (Applause.) MR. OLLIFF: Mr. Chairman, that's all our service awards this morning. CHAIRMAN CARTER: Thank you. Item #7A Page17 May 22, 2001 MR. BOB KRASOWSKI REGARDING THE SOLID WASTE MANAGEMENT ISSUE - NO ACTION MR. OLLIFF: And while the board's making their way back up to the dais, the public petition is the next portion of our agenda, so I would go ahead and call Mr. Bob Krasowski, if he's here to go ahead and make his way toward the podium. COMMISSIONER MAC'KIE: He is. CHAIRMAN CARTER: Now, we don't -- we don't clock you until you start, Bob. We don't charge you for setup time. MR. KRASOWSKI: I better wait then. Well, good morning, Commissioners. COMMISSIONER MAC'KIE: Good morning. MR. KRASOWSKI: So nice to see you, again. COMMISSIONER FIALA: Good morning, Bob. MS. FILSON: He's setting his own clock. MR. KRASOWSKI: I have my own stopwatch. For the benefit of efficiency and time, if -- if you folks could -- COMMISSIONER MAC'KIE: There it is. MR. KRASOWSKI: -- hold any questions until I'm done talking, it will probably work best. My name for the record is Bob Krasowski. This morning I'd like to take this opportunity to formally visit with you regarding the solid waste issue. I speak as a private citizen representing only myself and those who agree with me. I'm also involved in -- with other members of the community in the discussion to formalize my efforts under a Collier County zero waste, zero waste Collier organization. I'm still working on that, but that's just in formative stages. Commissioner Carter, some of the issues and points that I'm going to make this morning are ones I've recently spoken with Page 18 May 22, 2001 you about on various radio shows, and I don't want you to think that I'm oblivious to your comments that you made at that time, but I wanted to raise these points again in the presence of the other commissioners and in the interest of public. I raise these issues in anticipation of the July -- ahh, June, the June 11th workshop. Okay. So, first, I'd like to start off with what I see as misconceptions that -- that continue to exist regarding the solid waste issue. The -- in -- in various reports you've received over -- over the past, I've noticed that the landfill, one report regarding landfill, I identified many sources of odor problems but did not include the fact that the daily -- the daily deposits are not at -- at least haven't been covered by a daily cover of the earth or compost. So I just draw your attention to that. In our negotiations with Waste Management, as far as their extension for the collection contract, Waste Management has agreed to provide a daily cover from now on. One of your documents state that the last landfill sited was in 1991 in Florida. I -- I was wondering if this was to -- to back up, the assertion that no new landfills were even possible in -- in Collier County. I know it's not an idea that you're embracing, but to just say it's not possible, I don't think, is accurate. I've talked to the Florida DEP. It's certainly possible; if you want to site another landfill location, you could. The last landfill sited in Florida was in 1994. That's the Lee-Hendry facility that will be accepting the ash from the Lee-Hendry incinerator. But it's a Class I landfill like ours. I don't propose siting another landfill, but if we have a requirement in our growth management plan to have ten years in reserve, I think that if we were to site a landfill site for the potential or to cover our responsibilities in that regard, it might serve us well. So as we proceed in reducing our waste stream and never need it, we have it to cover what is Page 19 May 22, 2001 required in growth management plan. In one of the documents provided by a consultant, the -- the statement is made that incineration is environmentally sound. Now, the proponents of incineration and some in the community might find that to be accurate as far as incineration operating within the acceptable limits of emissions and pollutants in -- in the State of Florida, but these are all site specific. And if we were to place an incinerator in Collier County, certainly we'd be more sensitive than many other locations where incinerators are placed. And this is a debate -- debatable issue. The emissions from incinerations have impacts on especially children. There is medical documentation that shows children, due to their increased metabolism and their -- their small size and, you know, size/weight ratio, are more sensitive to exposures to toxins. And incinerations do produce dioxins, and feurons (phonetic) and -- so it's an issue, and it's something that we should all be aware of in our discussion on various options. And so I suggest this environmentally sound is a very grandiose and general -- general statement. Incineration is a core technology. That's something you've heard recently. And I don't know how this will show up for your reading benefit. COMMISSIONER MAC'KIE: Stan, could you help maybe tune in on that? MR. KRASOWSKI: Is it-- CHAIRMAN CARTER: I think it's -- MR. KRASOWSKI: -- not in focus? It's probably too small. But let me -- let me direct your attention to this page out of the Malcolm Pirnie report. And it -- as you know, Malcolm Pirnie has identified the high-tech aspect of your inquiry as -- as to this present date and came up with a way to categories -- categorize the different proposals and to proven and developmental Page 20 May 22, 2001 technologies. Developmental you wanted to shy away from for the most part, so proven technologies that are -- that have been -- but gone on to categories as core and ancillary. Well, in the definition of core, it reads that its core are those technologies capable of managing the majority of the waste stream for a given community without any additional processing. Examples include landfill and waste-to-energy facilities. Under ancillary, it states that ancillary technologies are only applicable -- applicable to a specific portion of the waste stream and rely on other processes such as landfills to manage the remaining waste volume. Examples include recycling, equipment landfill, gas, energy, and alternative fuels production. Well -- here I'll show a page from the nine -- the 2000 waste energy -- not waste energy, to the Florida Department of Environmental Protection annual report. That's available to you and anyone else on the web. And it shows here that in Lee County -- and I have pages which I won't show you, but I have -- it's available to you -- of other locations where incineration is used as well as recycling, and they bear out this -- this -- the point I'm going to make, is that here you'll see that in Lee County, at least in the '98 annual period, combustion was responsible for 37 percent of the -- of handling of waste and recycling 38 percent. So neither one of those is a majority of the waste stream. And we'll go back to the definition of core technologies. And certainly in this case and other cases that I can present, if you want, afterwards, that incineration does not handle a majority of the -- of the waste stream, and also, even when you consider the metals recovered after-- out of the ash after it's burned, it use -- you don't have to burn it to do that process. So -- so, once again, incineration does not qualify as a core technology by the definition of Malcolm Pirnie. And, as a matter Page 21 May 22, 2001 of fact, the ancillary technologies, recycling in this case, are more suitable for that regard -- that categorization, but they don't meet the majority of the waste, at least not at this point. So neither do. And what we -- I think everyone understands is we're going to have to put together a patchwork of -- of applications of systems and technologies to address an effective solid -- solid waste program. If you'll excuse the pause for a minute, I'm -- I'm just going to go to other pages. MR. MIHALIC: Can I help you? MR. KRASOWSKI: Yeah, sure. I appreciate it. There's one other thing under the -- it would go up to the top. I just missed this one. Okay. Incineration reduces the waste stream by 90 percent volume. Incineration might do that to that portion of the waste stream that it handles. In Lee County 37 percent of the waste stream is reduced by 90 percent because that's all that they -- they -- they're burning. Now, in that stuff that they burn, it's all organic material. So what they're burning might well be used in -- in composting, which our proposals you're -- you're looking at of various kinds. And then also there's paper product in there that could be recycled, so we can attack that component in -- in other ways. There is a crisis in regards to available -- available space in the landfill. After speaking to various people in the county, there was additional space out in Immokalee we chose to close that, but there were options there. Our back was not up against the wall, and it was pretty easily done by -- by yourselves expanding our capacities at the Naples landfill. Reclaiming sites I and 2, and if -- if you speak to even people on your own staff that have some experience in the management of the landfill prior to Waste Management and that know a lot about this issue, this Jerry -- I don't know his last name, but he's employed by the county. He's Page 22 May 22, 2001 been with the county for a long time. He's out at the recycling transfer station facility -- a great source of information. You might want to touch base with him. COMMISSIONER HENNING: Bob, I hope you recognize that the landfill, when Collier County ran it, we had an odor problem at that time. MR. KRASOWSKI: We sure did. We sure did, yeah. CHAIRMAN CARTER: Public petition allows a certain amount of time, Bob. If you could please wrap up, we'd appreciate it. MR. KRASOWSKI: Yeah, sure. I wonder, I have a question. Do other public petitioners get 10-minute limit, or is it 15, or is it arbitrary? CHAIRMAN CARTER: Ten minutes, sir. MR. KRASOWSKI: I'll wrap up. I appreciate it. Here I'll -- I'll show, if you want to review this at some other time, other issues, cost comparisons, effectiveness, environmental impact comparison. These are all things we'll have to do to evaluate one proposal over another. June 26th deadline, I think you should just forget about that. Children's health issues I mentioned. 400,000 gallons of water a day is required by the Lee County incinerator facility. Fifty-year plan, you just had these children up here, young people from Odyssey of the Mind. They're the same age as my son, 14 -- 13, 14, basically eighth graders. If you were to lock us into a 50-year plan, they would be 64 before they could untie themselves from the proposals that you're imply -- suggesting. I can certainly see maybe preparing the way or leaving options open over that time setting aside land or -- or whatever. But, you know, don't lock them into it. They seem very capable of coming up with solutions to problems on their own. So let's stay real flexible when we decide what we're going to do. Page 23 May 22, 2001 So what my suggestions are, we need another consultant other than Malcolm Pirnie to handle -- and I've got about three or four minutes, Dr. Carter, if I may-- CHAIRMAN CARTER: Well, you know, in all due respect, if I give you 15 minutes, everybody coming up here gets 15 minutes, Bob. The rules are ten minutes. You knew it when you came here. MR. KRASOWSKI: Okay. Okay. If it's the pleasure of the rest of the commissioners -- CHAIRMAN CARTER: I'd appreciate it if -- wait a minute, Bob. Please, Bob, listen to me. You can share it in workshops. I believe Jim Mudd can comment on this. for a moment is discounting your ideas. you. Everyone is incorporating -- I don't think anyone is -- Everyone has listened to MR. KRASOWSKI: If I could use the time you're taking up, Commissioner, with all due respect, I could finish up -- CHAIRMAN CARTER: Well, you've already used your time, but you may wrap up, sir. I'm going to give you two minutes to do that. MR. KRASOWSKI: Okay. I appreciate-- COMMISSIONER HENNING: Mr. Chairman, I'm not in favor of -- of deferring any direction that we're going into this. Our solid waste issue has been going on for years and years as Commissioner Mac'Kie can attest to. And I think we're on the right track to -- CHAIRMAN CARTER: I concur. COMMISSIONER HENNING: -- you know, solving our long- term needs for solid waste of Collier County. COMMISSIONER MAC'KIE: I don't -- I'm sorry. COMMISSIONER HENNING: And I think that the workshop that we're going to have is because of Bob, and I want to thank you for that. We're going to have a meeting of the minds to give Page 24 May 22, 2001 us good input so we can have -- make the right decisions to lead Collier County in the next hundred years. MR. KRASOWSKI: Yeah. Well, I hope not in the next hundred years. But I hope that the workshop isn't watered down by putting too many people -- too many people and commercial interests as well as the academic interests that we originally wanted here. But I'll just save that for public -- CHAIRMAN CARTER: Bob, I appreciate your effort. And if you'll continue to share that information with Jim Mudd, he'll willingly accept that as going into the mix. We have not made a decision yet on what we're going to do. I keep saying that over and over to everyone. MR. KRASOWSKI: I appreciate that comment because I keep being -- I keep hearing people on the phone telling me that everything is all done, that the solid waste -- the public utilities tells them that it's all going to come out of what you've -- you've accumulated and information from the Malcolm Pirnie report. You know, so that -- that kind of bothers me, and that's why I made an effort to come up here today to address this, bring this to the public and to yourselves. I respect the time limit. You're in charge here, and I'll just try to get the message out in other methods and other moments. CHAIRMAN CARTER: Thank you. COMMISSIONER MAC'KIE: If I may, I just want to be sure that I understood the points that you did have the time to make. Most important of what I heard was that we need to consider recycling as a core technology, and we need to acknowledge that incineration doesn't rise to the level of a core technology because it doesn't address the majority of the waste stream or actually core technology says all of the waste stream without other -- MR. KRASOWSKI: Well, majority. You're right. You were Page 25 May 22, 2001 right the first time. And then also incineration requires a landfill. COMMISSIONER MAC'KIE: Right. MR. KRASOWSKI: Part of that definition, not a landfill. I wouldn't want to elevate recycling to core because it doesn't at this time handle the majority of the waste stream. But in some places it does. COMMISSIONER MAC'KIE: And that's -- I had noted the same thing in looking at the Malcolm Pirnie report that I don't understand how waste energy, incineration, can be considered a core technology if you look at the real numbers. And I think that's what Bob is pointing out to us today, among other important things. CHAIRMAN CARTER: Commissioner, I understand that. But, believe me, we're looking at what Lee County did. That is not the state-of-the-art incineration. There are other processes where you can run dirty murfs in front of this thing and get all the recyclables out up front. I haven't made a decision yet. I'm waiting for the broad-based approach. I am not going to hang my hat on one consultant. I'm going to listen to everything, Bob, and I -- and I truly appreciate what you're doing. But let's have a little patience and keep working with -- with Jim Mudd in that division because he is a man that is not going to come back to this board with some singular narrow-minded approach to anything. I will give him credit for a man that's going to say we need to look at everything, and he's using a consultant, yes. But there's other factors that get -- that come into that. MR. KRASOWSKI: I appreciate your position and your -- what -- what you've expressed right now. And it's -- it's my interest to be up here to see if the other commissioners do compare with you and agree with you. You're one commissioner of five. And they need to know what you know to -- to proceed here, and, you know, I stand behind what I've said. Page 26 May 22, 2001 CHAIRMAN CARTER: Okay. Thank you very much. MR. KRASOWSKI: And I'll see you a little while under public opinion. COMMISSIONER MAC'KIE: Good. CHAIRMAN CARTER: If you would -- if you would be sure and share that information with Jim Mudd, it would be appreciated by all the commissioners. Item #7B ANTHONY P. PIRES, JR., REGARDING MINI TRIANGLE AREA/GATEWAY TRIANGLE REDEVELOPMENT AGENCY - STAFF TO BRING BACK AS A REGULAR AGENDA ITEM Going to the next public petition, I believe we have Mr. Pires, Counselor Pires. MR. PIRES: Thank you, Chairman Carter, members of the commission. My name is Tony Pires with the law firm of Woodward, Pires & Lombardo. And I'm here representing various property owners in the area commonly referred to as the mini triangle area bounded on the north by Davis Boulevard, the south by U. S. 41, the east by Commercial Drive. Well, we represent, and along with Ed Williams, who is a planner -- we represent approximately 50 percent of the property owners in this area. And we have a number of concerns with regards to the path in which the -- the concepts towards redevelopment are proceeding. The property owners have retained the services of Ed Williams and determined to expend the resources necessary to -- to work towards planning and redevelopment of this property with private market forces and incentives. We've met with staff. Ed Williams has met with staff individually. My -- without myself being present. Page 27 May 22, 2001 And most recently Ed and I met with Stan Litsinger and Marlene Ford last Thursday, May 17th, one day after the May 16th memo that is in your agenda packet that I received yesterday at 10 a.m. Some problems and issues were identified or discussed during the course of these meetings, and the usual sort of discussion and debate that you can have among professionals and consultants and at times quite interesting, and once again, some good discussions. However, a ma]or problem and the reason for the request in the public petition request and the reason why we're taking up your time today -- and we thank you for that and that we're addressing the board -- is that the attachment and the retention of the concept of aggregate unified development of the mini triangle by one developer with the use or threat of eminent domain is a serious and major problem. Maintaining that approach will not, will not and does not, result in the appropriate marketplace incentives to redevelop this area from our client's perspective. We're not asking, we haven't been asking, we're not suggesting and haven't been suggesting that the board waive its police power. If anyone wishes to say that, that is absolutely wrong. I recognize the role that government has to play in the exercise of its fundamental police power. I represent governmental bodies myself, and so I -- I recognize that particular aspect and that you cannot waive that. We're not asking that there will never be the need to utilize the awesome and powerful instrument of eminent domain, that is, taking someone's property against their will for compensation. But the use of eminent domain should be the instrument of last resort. It should be the instrument, not as a primary component of a one-developer development concept but, once again, an instrument of last resort, for any recalcitrant property owners at Page 28 May 22, 2001 the end that would oppose an impediment to the redevelopment, whether it be through a unified plan or through individual property owners developing and their need for some aspect of the infrastructure not being able to be obtained in a voluntary manner. There's no reason today for my clients, the property owners, to enhance their property with the concept of eminent domain and one-developer concept hanging over their heads. It's also frustrating that one of my clients, Mr. Taylor, has articulated many times -- we've mentioned it to staff. We've mentioned it to others -- he is willing -- he has got a very vibrant business that some may not want in that area. Some may think that they know best what is usable for that property and say his views do not belong in that area. It's a viable, vibrant, ongoing business. He's willing to re -- to invest in the area, willing to invest dollars to enhance this property, willing to enhance the landscaping, enhance the architectural features of his body shop and collision shop if this cloud is removed. There is no other incentive for him to do that. Yet, he's not willing to do so with the problem that exists coupled with the stated desire to see his business removed from the mini triangle. Eminent domain as a primary tool with one-developer concept in this context is not a panacea. It may be perceived by some as a wonder drug or a cure. It's not a magic wand that turns a pumpkin into a carriage. In this instance, it's a cloud, a very dark and hovering cloud, over our clients. It's a very heavy hammer that is, in fact, chilling, redevelopment to the private incentive of this area. We've asked the board to place on a future agenda for consideration direction to staff that as to the mini triangle area the concept of aggregate unified development by one developer with eminent domain power as a primary tool be set aside, not Page 29 May 22, 2001 utilized in consideration of redevelopment concepts and also get away from the concept that certain existing viable uses need to go away. COMMISSIONER MAC'KIE.' I'd like to speak to that since this is something so near and dear to my heart. I listened very carefully to every word Tony said to see if there were any words he spoke with which I disagreed. I can clearly say I agree with every single word he said. I absolutely -- here's the bottom line: The good news is, in our community we don't need a magic wand even if eminent domain were one instead of a heaven -- heavy cloud. We don't need a magic wand because the market is growing. We're the fastest-growing, most wonderful community in the whole country. We don't need it. What we need is and how this all started was for government to find how we were in the way of redevelopment. What are we doing that's prohibiting or -- or stagnating the redevelopment of this portion of East Naples? The great news here is that the -- the property owners now among themselves are talking about the way to redevelop that property. I don't have in mind the uses that are appropriate for that property because I know the market will define the uses. Frankly, our plan that we had done by consultants is a little out of date. It suggests a hotel is a great use for that triangle when the market was ahead of government again and has already built more hotel rooms in that area that makes me think a hotel is probably not appropriate for that area now. The bottom line for me is, get out of the way. Government get out of the way and allow the market to redevelop this area. We still have things to do to get out of way. We still need a zoning overlay. If the property owners are willing, I think an MSTU, because there are two elements that I see that -- that can't -- that this area can't redevelopment -- can't redevelop Page 30 May 22, 2001 without, and that would be some sort of centralized parking and some sort of centralized storm water system, because the individual properties can't solve that problem by themselves. And that's a place where government can get out of the way. But if these property owners are willing to form an MSTU -- and we will ask them, because that's how we do it, 50 percent plus I -- if they are, then let's quickly move to form an MSTU for those purposes. Then they are paying for -- the property owners are paying for -- for the improvements to the area. The bottom line is, I don't know if it's even necessary, if it is, if we have adopted some -- some rules somewhere that says we have to look at a single-developer concept, then let's put it on an agenda to say that we're open to every concept. But I'm surprised if that's necessary. If it is, I will certainly want to correct it because the -- the deal should be, we don't need a magic wand if, as you say, a recalcitrant property owner cannot be made to come to the table and participate with the other property owners. That's -- that's what eminent domain is for. If one developer can come to the property owners and get you-all together to work together for one redevelopment, God bless him, and Godspeed. If you choose to redevelop your properties more along the lines of how it happened on Fifth Avenue piecemeal but under a unified plan, God bless you, Godspeed, how can we get out of your way. So I agree with every word you said. If staff says that that requires some -- something to be put on the agenda for future modification, then I'll certainly support that, and I'll even put it on myself if that's what needs to be done, but I want to let today be as clear a message as it possibly can. I hope the whole board will support this, that we want to get out of your way. We don't need a magic wand or a hammer. We know that the market will do what it needs to do if we can work with you, not against you. Page 31 May 22, 2001 CHAIRMAN CARTER: Commissioner Mac'Kie, I agree totally with what you said. That may be a Public Record No. 1. And I -- I believe there's been some confusion. I read your memorandum. I read staff's memorandum. I could not put the two together. They did not make sense to me. They were contradictory statements. You clarified that for me this morning in that you did not have the memorandum prior to what you sent and there had then initiated a staff meeting. But I'm with Commissioner Mac'Kie. Let's clear the air here. I'm with you. I want staff to go forward and do what we need to do with government staying out of the way and still reserving our right, at some point, as you said, Counselor, if eminent domain is necessary, we need to preserve that right as a government. COMMISSIONER MAC'KIE: Guess what. We can't waive our police power anyway. CHAIRMAN CARTER: That's right. We need to be there with that. But the other part of it, go do it, get it done and come back, and let the private sector drive this process for the redevelopment in that area. COMMISSIONER FIALA: As long as we continue to encourage you to keep moving forward -- MR. PIRES: Yes, ma'am. COMMISSIONER FIALA: -- and give you every incentive we can, because I think we in East Naples are all kind of tired of looking at it the way it is. MR. PIRES: We're looking forward to redevelopment. And, once again, we're looking forward to a positive statement from this board that I'm hearing, which is -- CHAIRMAN CARTER: Well, you got three that are there so... MR. PIRES: -- not only a positive message but to everybody in the area. We think it's a very positive message to everybody in the redevelopment area. Page 32 May 22, 2001 CHAIRMAN CARTER: I got three nods. I have -- Commissioner Henning. COMMISSIONER HENNING: Mr. Pires, can you identify the -- your clients in the mini triangle? MR. PIRES: Yes, I will. Bob Taylor, Jack Conroy, Danny Schyrver, Duke Turner, and the Thalheimers. COMMISSIONER HENNING: I concur. I think we can head in the right direction without putting hammers -- MR. PIRES: Thank you. CHAIRMAN CARTER: Once more -- COMMISSIONER HENNING: Just make it happen. COMMISSIONER MAC'KIE: Make it unanimous? CHAIRMAN CARTER: That's five. Okay. You got it. Let's go, MR. OLLIFF: Mr. Chairman, generally you do not take public speakers under the public petition portion of the agendas, but you did have someone registered to speak. I'll leave it to your discretion. COMMISSIONER MAC'KIE: Surely we've accomplished the goal here, I mean, and -- CHAIRMAN CARTER: the point? Who is the public speaker, and what is MR. OLLIFF.' I don't know the point. The speaker is Dan Pioli. CHAIRMAN CARTER: Is Mr. Pioli in the room this morning? MR. PIOLI: Yes, sir. CHAIRMAN CARTER: The board has given direction, Mr. Pioli. Is there difficulty with that? MR. PIOLI: Well, I'll-- CHAIRMAN CARTER: You have to -- to be on the record, you have to come to the microphone. So -- yes, it's out of -- it's out of context with what we normally do, but I've been hammered Page 33 May 22, 2001 enough on this stuff. Step to the podium, please, identify yourself. Please make your comment quickly. You know what the board's direction is. MR. PIOLI: For the record, Dan Pioli of FP Real Estate Investments. I'm not sure I'm entirely clear on what the direction is. But if you're sending this group out of here today with the direction to come up with a concept that gets all of that property within the mini triangle redeveloped under a unified plan, even if it's individual rehabilitation -- · COMMISSIONER MAC'KIE: Actually, I don't care if it's a unified plan. I don't care if it's individual property redevelopment one by one. What I'm saying is, we -- the mistake that we made, I think -- MR. PIOLI.' Sure. COMMISSIONER MAC'KIE: -- is that we used a couple of words we that shouldn't have, and those were "unified plan" -- MR. PIOLI: Right. COMMISSIONER MAC'KIE: -- because I -- I intend that to mean something so that the area looks right, works well together, is coordinated. But never did I intend that to mean that it has to be developed as a part of one plan, except to the extent that our whole county is developed pursuant to a unified plan which is the Comprehensive Plan, the zoning code, etc. MR. PIOLI: All right. Well, then let me just conclude quickly by saying, as you can imagine, I've been working very hard in the community, and there is tremendous support -- COMMISSIONER MAC'KIE: I know there is. MR. PIOLI: -- throughout the community for a unified redevelopment plan. And I know that you have all been spoken to by the Naples Area Chamber of Commerce, the Urban Land Institute, the Southwest Florida Regional Planning Council, among many, many other groups and organizations. I know that Page 34 May 22, 2001 the Citizens for Reformed Government also have individuals who are very supportive of this concept. We need to step back long enough to look at the puzzle on the cover of the box and see first how the pieces need to go together before you put the pieces in place first because they may not fit once you do. And I think -- part of the process that we that's a very important private need to undertake now. COMMISSIONER MAC'KIE: zoning overlay process. I agree. I think that's part of the MR. PIOLI: Absolutely. Because if you don't get Fifth Avenue, 41, 10, and the Gateway triangle to create some sort of a synergy for a greater downtown area and if we don't begin to work, as Commissioner Fiala so well said during your affordable housing workshop, to urbanize our population as it continues to expand, you're going to have greater problems. And these are all issues that we need to look at. There needs to be a synergy between all of these things. Now, I can't tell you I'm going to continue to work with staff to try and come up with a proposal for the unified redevelopment and the acquisition of those properties through market forces. I've sent all 14 of them contracts, many of them at full price, full asking price, that were not accepted. So there's a message in there for you, okay. And I can tell you that I will be -- will continue to work with staff to try and come up with a proposal that makes sense given the costs of acquiring and preparing that site for redevelopment. Thank you very much. COMMISSIONER MAC'KIE: Thank you. CHAIRMAN CARTER: Thank you. I hope that gives everybody an opportunity to understand that it's pretty -- a pretty big blanket to operate under, a lot of possibilities. Okay. Thank you very much. Next public speaker, please. Page 35 May 22, 2001 Item #7C MR. TONY ACRI REGARDING LANDSCAPE ENHANCEMENTS AT VANDERBILT BEACH ROAD AND AIRPORT ROAD - TRANSPORTATION STAFF TO CONTINUE TO WORK WITH WCI AND COME BACK TO THE BOARD WITH RECOMMENDATIONS MR. OLLIFF.' Tony Acri. MR. ACRI: Good morning, Commissioners. My name is Tony Acri. I'm with WCI Communities. Thank you for the opportunity to come and talk to you about our landscape beautification program that's proposed for Airport Road. With me is Christian Andrea. He's with Architectural Land Design, and he's been retained by WCI to produce the plans and specifications for this project. I'd first like to give you an overview of the project. We had originally proposed landscape in the medians at Vanderbilt Beach Road and Airport Road. After talking with Mr. Feder, I understand that Vanderbilt Beach Road will soon be six laned probably within a couple of years. It wouldn't make sense to landscape the medians since the road is going to move to the center, not to the outside. Therefore, we would withdraw that from this plan. I also understand that north on Airport Road there is a section that will be impacted. But we would like to go through and propose the improvements within the Airport median north of the intersection, approximately 2500 feet to the north. And if -- if I can, I'd like to have Christian give you a little more detail as to what we're proposing within these medians. MR. ANDREA: Good morning. The plan we've prepared tries to enhance the existing landscape both from the medians to the south of us and the landscape at the entryways to Tiburon. Page 36 May 22, 2001 We've utilized royal palms at each end of the medians to add a very formal and elegant look. In between that we've used live oak trees and then to break up the massing of live oaks we've used some clumps of cabbage palms. Trees for the most part are all lined up pretty much on center with the medians. This anticipates any future widening of the roadway so we don't have any problems down the road. We've also incorporated a variety of shrubs, both flowering and nonflowering, to break up the massing of the palms and the entry nodes as well, and we're currently working with staff to make certain the plan meets code, both from a DOT standpoint, site-line aspects, and from a plant pallet standpoint. And we still have a couple minor adjustments to make. But in general we're -- we're pretty close to having that completed. MR. ACRI: We'd like to request that the board, first of all, allow staff to continue to work with us to come up with a suitable plan and specifications for the -- the beautification program here. Also, we'd like to request that the board allow staff to work with us on a maintenance program. What we'd like to do is install and maintain these areas for one year and at that time turn it over to the county for maintenance. COMMISSIONER MAC'KIE: And that's the only issue I have is this is -- is a portion of this -- it appears to me that all of this will be beneficial to the real estate development that's to the east -- east of it, and I wonder if-- I mean, the installation and design of it is wonderful. I like it. I'd like to support it. I'd like to see it there. I'm glad that WCI sees it as part of its civic responsibility to install it and maintain it for a year. I think, though, that its maintenance is something that at least ought to be shared by WCI on an ongoing basis. I mean, maybe you maintain it for the first three or five, and then we share it thereafter 50 percent or -- I don't know what that is, but the maintenance is the big expense Page 37 May 22, 2001 here. CHAIRMAN CARTER: Exactly right, Commissioner. I would - - you know, when we're through here -- and I spoke to Norman Feder prior to this presentation that I would like transportation to work with WCI on this issue, not only for the landscaping maintenance aspect, but you've got some overall traffic issues to deal with at that intersection, and I want that big picture addressed. And whatever WCI's role is, fine, and you come back to us with some formula on maintenance. But maintenance is the big number. Capital expense up front is the easy part. And we don't want to be in a position where if it's benefiting both the public and private sector that we, the public, end up paying private sector's part. I'm not going to support that, and I will wait for staff to come back with a recommendation that would be equitable in this situation, sir. COMMISSIONER MAC'KIE: I'd support what you just said in there, Commissioner Carter, as a direction to staff. We certainly want them to continue to work with you on this. And we certainly want to hear recommendations on long-term maintenance and traffic issues. I'll use this as a chance to tell you guys as a heads-up that I've been working with the private sector on a sort of blanket county-wide kind of Naplescape issue that I hope we'll be ready to bring to you soon. And -- and it will address some long-term maintenance and installation issues, so I'll be back on that. But in the meantime, I hope that board will give staff the direction to work on this. COMMISSIONER HENNING= Mr. Chairman? CHAIRMAN CARTER= Yes, sir. COMMISSIONER HENNING: Is this -- the plant material fitting to the median landscaping master plan? MR. ANDREA: Yes. Yes. We've met with staff, and the plant pallet is acceptable. Page 38 May 22, 2001 COMMISSIONER HENNING: This is a ma]or arterial road, and I think the whole community benefits from it. I don't know what - - Mr. Kant, if you help me out, what the -- the history is of maintenance of our arterial roads. MR. KANT: Spotty. Edward Kant, transportation operations director. We've had some successes, and we've had some situations which were not quite as successful. And we're trying to turn that around. I think that the -- I'm getting the sense of the board's direction to work with this developer to come back not only with a landscape plan but with a maintenance and operation plan and a mechanism which will allow ongoing maintenance in an equitable fashion. I believe that's what I'm hearing the board say. COMMISSIONER HENNING: My question is, we have other arterial roadways with median landscaping in it, and who is responsible for the maintenance of it? MR. KANT: In some cases, we have agreements with developers. For example, in front of The Vineyards, that was an agreement with the development entity. There was an agreement on 951 with the Fiddler's Creek development entity which we then took over after the first two years. And over time these have become learning experiences. And what we're learning is that, while the chairman has pointed out, the capital investment while it may be significant is nowhere near significant as the long-term maintenance cost. We're trying to structure these agreements to make sure that we have a more equitable distribution of cost between the private sector and the public sector. COMMISSIONER MAC'KIE: And, Commissioner Henning, this is perfect as a segue for the plan that I'm going to be bringing back because we haven't really had a policy. We've kind of done them on an ad hoc basis. And I hope to be bringing something to Page 39 May 22, 2001 the board that will give us a county-wide policy and way to approach this in a more -- CHAIRMAN CARTER: Good point. COMMISSIONER HENNING: And maybe you can bring this up at the community character workshop because that is part of community character. CHAIRMAN CARTER: You're all absolutely right. It's an integration of the pieces, and so I'm pleased to hear that. COMMISSIONER FIALA: I would like to ask, though -- years ago on the board of the Collier Naplescape, we adopt -- we -- we prepared -- spent a lot of money preparing a streetscape master plan which was then accepted by the council -- county commissioners. Are you redoing that? COMMISSIONER MAC'KIE: No, no, no, no. COMMISSIONER FIALA: Oh, I see. COMMISSIONER MAC'KIE: I'm working with Naplescape, Donna. COMMISSIONER FIALA: Oh. Oh. COMMISSIONER MAC'KIE: Yeah. So don't worry about that. Yeah. This is just a maintenance program. COMMISSIONER FIALA: Oh, I see. Okay. Okay. CHAIRMAN CARTER: I didn't mean to take your time, sir, but have we answered your questions? MR. ACRI: You have, yes. Thank you. Item #8D1 STATUS REPORT REGARDING ACQUISITION OPTIONS FOR PROPERTY LOCATED IN THE BAREFOOT BEACH PARK PRESERVE - STAFF TO CONTINUE TO ACQUIRE THE PROPERTY THROUGH A NEGOTIATED PURCHASE Page 40 May 22, 2001 CHAIRMAN CARTER: Okay. Thank you. All right. We need to move to the next agenda item. It's time certain, and that would be to go to D, public services, Item 8 D8(D)?. And this is in regards to the Barefoot Beach Preserve. Mr. Ochs. MR. OCHS: Good morning, Mr. Chairman, members of the board. Staff is here this morning to present a brief update on efforts undertaken to date to acquire the last privately held parcel of property in Barefoot Beach State Preserve. As outlined in your executive summary, several initiatives and activities have been undertaken over the last several weeks, including the review of a title commitment report to clarify ownership interests and also to evaluate some of the issues surrounding legal access in and out and through that property. Staff has also obtained two estimates from prequalified appraisers that will be used to ultimately determine the fair market value of that parcel. Your county attorney, based on board approval at their last meeting, has solicited an opinion from the Florida attorney general regarding the legality of the use of tourist development taxes as a potential local source of funding for the acquisition of this property, and we're awaiting that opinion from the Florida attorney general. Staff, in con]unction with your county attorney's office, has also been working on a continuous basis with the Tallahassee office of your outside legal counsel law firm, Carlton, Fields, discussing a number of acquisition strategies and also, very importantly, working with them and directly with state officials and various agencies that may be able to provide reimbursement to the board for acquisition costs that they may incur in acquiring this property through a willing sale and a willing sale only, I should emphasize. That option for reimbursement is not available to you if you pursue an eminent domain action. And, finally, the staff has been monitoring the recent efforts Page 41 May 22, 2001 of the trust for public land. It's a private nonprofit land conservation organization, in its recent efforts to acquire that property from the property owners. Both the board and the staff has been copied on recent correspondence from Mr. Thomas Bolf, who is the attorney representing the owners of this property, back to the trust indicating, among other things, that apparently the owners are unwilling to -- to sell the property at this particular point in time. Based on those activities and that information that we have available to us at this, it appears that the board has essentially three primary alternatives available. The first is to continue to attempt to pursue a -- a voluntary, willing sale between the parties on this -- on this property. The second option would be to initiate an eminent domain action to -- to take the property. And the third option would be simply to stand back and discontinue efforts at acquiring the property at this time. Staff recommends that the board continue to pursue the voluntary acquisition of this property through any and all appropriate mechanisms available to the parties; secondly, that the board approve the budget amendments that would be necessary to obtain the market appraisals on the property and that, finally, in the event of a willing sale or a willing sale could be consummated, that board would authorize staff to proceed to make application to the appropriate state agencies for reimbursement of the board's acquisition costs. With that, Mr. Chairman, I'll conclude my remarks and answer any questions you may have. CHAIRMAN CARTER: Mr. Ochs, I appreciate your comments this morning. And, members of the board, I have worked very closely with staff and the community on this issue. Our goal, as always, has never changed. That is to acquire the property. We want to do it to staff's recommendation, No. 1. That's where we Page 42 May 22, 2001 want to be. That's what we want on the public record, and that's the position we would like to take. COMMISSIONER HENNING'- And I totally agree with you, Commissioner Carter, is let's go ahead and get the appraisal, find out what the property is worth, and try to work with the property owner for acquisition of that. CHAIRMAN CARTER: Commissioner Fiala, and then I need to -- before I do that, Mr. Olliff, do we have any public speakers? MR. OLLIFF: You do. You have two. CHAIRMAN CARTER: All right. I'll take your comments, Commissioner Fiala. And then I'll go to public speakers. COMMISSIONER FIALA.' I'll make them quick. I -- I, too, agree that we need to move forward. And I'm glad you're negotiating with them, and I'm glad that eminent domain is the last way we'll look at it. These state funds are waiting there to help us, and I think we need to move forward in that direction, and we can't get those state funds with eminent domain so -- MR. OCHS: That is correct. COMMISSIONER FIALA: Yes. Thank you. CHAIRMAN CARTER: Mr. Olliff. MR. OLLIFF: The first speaker is Thomas Bolf representing Ricky Stouffer and Paul Harvey, and the second speaker would be Brad Cornell. MR. BOLF: Good morning. My name is Tom Boll. I'm here on behalf of Ricky Stouffer and Paul Harvey. Thank you for having me here today. Thank you for having this meeting continued because last time I was here I didn't get to speak. We got this continued from April 24. Unfortunately, in my review of the backup materials for April 24, they seem to be almost identical with the backup materials for today, which in my mind means that we haven't made much progress in the last 30 days, and I want to express the frustration Page 43 May 22, 2001 that my clients are feeling at this point in time with the slowness of the process. Miss Stouffer is in her late 70s. She is very emotionally attached to this property. I think it's important that you understand this. She lived there for decades. She lived there with her husband who is now deceased. It has wonderful memories for her. She does not want to give this property up. Beachfront properties, this is 2 acres running from the gulf to the beach she bought in the '60s. Everybody in this room wish we had that foresight and had done the same thing. Okay? Those properties are extremely valuable. And she has had the opportunity over the years to sell this for a lot of money. She has not done that. Sale is something that she does not want to do. She loves the property. Mr. Harvey has a very long-term lease, one of the reasons for which is because she didn't want to sell the property. She wants it used as it has been used, and that is for public access for people to come there. We thought we had a very good idea. It was approved unanimously in November, and that is to have public restrooms and public concession stands and other similar items that we would provide almost free of cost to the -- to the public. And in exchange, we would be allowed to have a club there for people who like a club atmosphere to visit the beach. This property is worth many millions of dollars. It seems to us --just trying to -- to be a disinterested third party -- that it makes more sense for the county to not to spend millions of dollars to acquire this property and instead get the use of the property by allowing us to move forward with the facilities which had been approved in November. Notwithstanding that, it's apparent that the commission has moved in a different direction. Obviously, we're very disappointed in that. We expended a significant amount of Page 44 May 22, 2001 monies trying to move forward with this development. Mr. Harvey has expended well into the six figures. This property conservatively is worth at least $5 million. I mean, there are ads every day in the paper for beachfront properties of that price, and they're nowhere near as secluded or as nice as this piece. And that's for residential, not even a club. Any real estate appraiser is going to tell you that a reasonable rental value is 10 percent of the value of that land per year. It's been a hundred days since the plug was pulled on us. It was in February when you-all decided you were going to move forward with some sort of acquisition. I mean, that's -- that's over a third of a year, almost a third of a year. I mean, putting in mind the value of this property, that's hundreds of thousands of dollars in lost value to our client. COMMISSIONER MAC'KIE: I just have to interrupt you at that point. I've been trying to -- to wait until you were finished, but on that point specifically, since you're talking about the public purse here, your client is in exactly the same position as they were before the county considered going into joint venturing with them on an undertaking. No -- no property rights have been taken from your client. And if they want to go forward with development, they are in absolutely the same place as they always were and should be pursuing their individual private property rights as they are, I have no doubt. But I have to also comment back on another thing that you said. And if this is true, this is the very best possible news. I believe that your client has a great -- the property owner has a wonderful history with this property and a great attachment to it. And we want to respect that, and we want to work with her to accomplish exactly what you said she wants, and that is, to have this property used as it historically has been, and that is for access to the -- by the public to the beach. Page 45 May 22, 2001 The piece that we had trouble with was the part that you added about "and also for people who would like a club atmosphere." you know, that's the part that we reject. MR. BOLF: In November it was wonderful. COMMISSIONER MAC'KIE: MR. BOLF: 4-0 vote. COMMISSIONER MAC'KIE: you know. at a And -- and then we got smarter. And -- and then we were smarter, MR. BOLF: COMMISSIONER MAC'KIE: CHAIRMAN CARTER: Wait. time. COMMISSIONER MAC'KIE: I -- I -- I just don't see that at all, Commissioner. NO, Please, please. It has to be one And I have the floor. CHAIRMAN CARTER: And -- and this -- MR. BOLF: Actually, it's my time. But I guess I'll be able to add on to it after. COMMISSIONER MAC'KIE: You will be. CHAIRMAN CARTER: We'll let you add on to it. And I'm going to let this commissioner finish. I'm going to let you finish, and then we're going to bring it to closure. COMMISSIONER MAC'KIE: Because we're not going to reevaluate -- you know, there's no point in this forum for us to be talking about whether or not the board in November was smart or not smart when it agreed to partner with Mr. Harvey. But if you want to put the emphasis on the part that -- of your statement, if we want to talk about Mrs. Stouffer and her interest in having this property continue to be used as it historically has been, that is exactly what this county commission wants to see. The part that we have a problem with is for those who prefer a club atmosphere. We would like to support her wishes to have this property used as it historically has been. And you are such an important player in that process. If you could communicate to Page 46 May 22, 2001 her that sincere desire on behalf of this board instead of, you know, jenning up the -- the excitement over, you know, you may be able to sue the county, and you may be able to get money. That's not what she wants. She wants this property to be used for the benefit of the public, and so do we. We just don't want the club atmosphere part. CHAIRMAN CARTER: You may continue, sir. MR. BOLF: Thank you. In the last hundred days, as I understand it, from reviewing the backup materials -- and the direction was quite clear -- in February was, come back to us, staff, and tell us how we can acquire this property. I'm reading the backup materials here, and we called two appraisers that the county has probably worked with regularly. Okay. You got a title insurance report done. You contacted the attorney general's office regarding a tourist development tax. Okay. Now with all due respect, if you were a private entity seeking to buy this property and your broker came back to you in a hundred days and told you he had called two appraisers, he had found -- found out some information but not the absolute information about financing and it got in a title report, you would fire that broker. Okay? That is, I think, embarrassing to suggest that in a hundred days that's the most progress that can be made. Now, I think it's important, and I copied you on the letter to the trust that I sent out earlier this month. COMMISSIONER MAC'KIE: You identified three of five items. CHAIRMAN CARTER: Please, please. Wait. Let him finish. COMMISSIONER MAC'KIE: Well, he's not telling the whole story. CHAIRMAN CARTER: Well, I know he's not. But let him finish. He's confused this with a court of law. COMMISSIONER MAC'KIE: Okay. Page 47 May 22, 2001 CHAIRMAN CARTER: Let him finish. MR. BOLF: I think it's important to -- to realize that -- and as I copied you on that letter, Miss Stouffer is not interested in selling the property. Okay? So I think further direction to staff to further pursue that, that -- that has been a very constant statement that we have been making for the last three months. I don't think that's going to change. You may not think that's reasonable, but it's her property, and she can decide what she wants to do with it. So that I don't think is going to get us anywhere. I think -- and -- and I did volunteer when I did show up the last time the meeting was canceled, I met with the county attorney's office and suggested to them that we would waive the statutory preconditions to filing condemnation suit and to move forward with that alternative. I think that's the -- if you-all want to use the property, then you-all are going to have to acquire it. I think the only way to acquire it is through the condemnation. We, again, would ask you to reconsider and allow us to move forward with the facilities which we previously have suggested to you. But if that is not an available option, then the only other option that's available at this time is condemnation. We -- I don't know how more clearly to say no to the idea of a voluntary transaction. If you wish to make that proposal, we -- I can't stop the U.S. Mail from delivering it to my office, and I am duty bound to send it on to my client. But the bottom line is, is that we will work with you in getting this turned over and put into the public's hands. We will assist you in -- in the process of doing that expeditiously, but the procedure is not going to be efficient for you or your staff to try to do it on a voluntary basis. I'm just trying to be as clear as I can with you on that. I appreciate your time, and we'll see how we -- we come out Page 48 May 22, 2001 with this. COMMISSIONER COLETTA-' A question, if I may, sir? Is it true that you as an attorney will benefit better by condemnation orders than if we went through a voluntarily -- voluntary -- voluntarily sell the property? MR. BOLF: It's impossible to say at this point in time. It depends on -- on what your initial offer is. It depends on what my contract is with my client. This is a unique situation, to be sure on -- on all fronts. COMMISSIONER COLETTA: But what I said wasn't true then? MR. BOLF: No. It -- the -- the statutory formula depends upon what your initial offer is, what is ultimately received for the client, what my agreement -- COMMISSIONER COLETTA'- There's no advantage to you as an attorney to go through condemnation? MR. BOLF: If -- if it -- if it was -- this decision is not mine. It's my client's decision, okay. She doesn't want to sell the land. All right. I've represented lots of folks all over the state. I'm never against listening, okay. But I'm just communicating to you her information. COMMISSIONER COLETTA: I understand. MR. BOLF: Because she is not interested in selling. COMMISSIONER COLETTA: I understand. I understand. I'm hearing a midst -- mixed message from you telling us that if we want to do it we have to consider condemnation. MR. BOLF: I -- I'm sorry. Then that is a mixed message. It is not that you need to consider it. That is, in my view based on my discussions with my client, the only alternative here, because you-all are not going to permit us to develop the property. I don't think there is any alternative but condemnation. COMMISSIONER MAC'KIE: You have development rights, sir. Page 49 May 22, 2001 We can't possibly prohibit your ability to develop the property. And what I've said earlier and what you need to hear clearly from this board is, go forward with whatever development rights your client has. We aren't in your way. We just aren't your partner. MR. BOLF: I respectfully disagree with -- with that statement. COMMISSIONER MAC'KIE: How could we possibly get in your way? MR. BOLF: I -- I think you've done quite a bit of things to do that to this stage. COMMISSIONER MAC'KIE: Like what? MR. BOLF: Including the passage of a -- a management plan which restricts any development of the property. I think that's a fairly big hurdle for us to overcome. COMMISSIONER MAC'KIE: Nothing new. CHAIRMAN CARTER: Well, I think, Counselor, in all due respect, we have heard your part of it. I don't think we collectively as a board would concur. We could keep drilling this issue, but I really, with the proposal by staff, is to go with Recommendation No. 1. Our own legal counsel, I would like his -- his comments to yours, and then I have one other public speaker to take, and then the board needs to make a decision. COMMISSIONER MAC'KIE: And can I --just my last comment, I promise, is -- is that there's just no -- there's no meshing the two statements that you're making that are contradictory. You're saying that your client wants to see the property used as it historically has been for public access to the beach because she loves it. And you're saying that the client -- your client is unwilling to deliver title to the property for that purpose. Those two things don't make sense. If she would rather give us a conservation easement, if title is what's important, you're a lawyer. And if you'll focus on something Page 50 May 22, 2001 other than eminent domain, you could suggest alternatives that would allow her to retain ownership of the property but allow it to be used for access by the public as it historically has been and for which we are grateful and in perhaps some way, you know, in a manner that would honor her husband's memory. Perhaps there is some way that we could name the property in his honor. Perhaps there is something we could do to honor his memory that I think you would find this board very open minded to. But we do need -- we need -- respectfully, we need for her to be getting advice on issues other than eminent domain, on other ways to accomplish her goal other than the one in which you specialize which is eminent domain. CHAIRMAN CARTER: That's clearly understood, I think, on everyone's part. We may have a willing seller. Maybe we don't have willing attorneys. I don't know. MR. BOLF: I beg your pardon, sir. That is not correct. This information is not coming from me, and you'll be noticed that there are other attorneys involved in this, including Don Pickworth and John Farquhar from -- of my office. And this is not a decision that the attorneys are making. This is a decision that the client -- CHAIRMAN CARTER: Attorneys can play an instrumental role in bringing the sides together, or they can take diametrically opposed positions. That is your right as a counselor to any client. I'm not going to debate that with you this morning, sir. MR. BOLF: I appreciate that. But what is it that you base your statement on that you think that the lawyers are the problem here? CHAIRMAN CARTER: Well, be-- MR. BOLF: I think -- I think that's a fair question. You have -- CHAIRMAN CARTER: You can talk in private with me on that. But I have been around lawyers a long time, and I know Page 51 May 22, 2001 some lawyers cooperatively work through issues. Others take very hard positions on issues. I think that's your decision, sir, and how you want to work with your client. I'm not going to go there. But it is my observation, I have seen more lawyers in my lifetime break deals than I have seen them make deals. And that's my personal observation. MR. BOLF: Well, if the deal here hadn't been broken -- CHAIRMAN CARTER: Sir, I'm not going to debate you anymore. I'm -- I'm going to withdraw my comment because I seemed to have upset you unduly. MR. BOLF: Thank you. CHAIRMAN CARTER: I'm going to go to our own attorney for comment, and then I'm going to the other public speakers. MR. MANALICH: Good morning, Mr. Chairman, Commissioners. For the record, Ramiro Manalich, chief assistant county attorney. Just as a brief response to Mr. Bolf's comments, I'd like to yield the floor to Mike Olenick, who is our retained counsel with Carlton, Fields. He can describe a little bit -- some of the responses, some of efforts that staff has done just to bring you up to date. MR. OLENICK: Good morning, Mr. Chairman. CHAIRMAN CARTER: Good morning, Mr. Chairman, member of the board. My name is Mike Olenick with the law firm of Carlton, Fields. And, again, I -- I don't want to get in a legal debating situation here either, but I think it's important -- and your staff counsel can -- can also make this point. There was never a formal approval of any project by this board at any time on that piece of land, and that's important, No. 1. Number 2 is -- and this is important -- the amount of time and effort that this commission through staff has worked on this over the last few months, personally I've put time in. I've worked with staff. One of the problems you've had is the budget. For the last Page 52 May 22, 2001 2 1/2 or 3 months there was unknown how much money would be in the coffers of the state because there were raids on the funds that would affect the purchase of this land. Until such time as the state knew where that money was, you were unable to do anything, No. 1. Number 2 is, it wasn't until recently that we had determinations from both the Department of Community Affairs and Department of Environmental Protection that eminent domain is absolutely not an alternative for getting reimbursement of any kind of state funds, which was the prerequisite established by staff early on. Number 3 -- and -- and actually is also very important -- we have worked with staff, and I have worked with the trust for public lands, as has staff to some degree. And in letters of Mr. Chilius to the -- to the applicant or to the -- I'm sorry -- to the landowner, they made it clear they could close in 45 days with their money. They have a huge letter of credit, a huge ability to have money that -- that we don't -- we being Collier County, we being the state, doesn't have. So if the issue is closing quickly, it can be done. And all I wanted to clarify for the record was the intent of the staff and the willingness of this board. I have personally dealt with you, Mr. Chairman, on more than one occasion to try to effectuate the closing of this deal. It can happen with a willing seller. And that's all I wanted to say and to clarify for the record. Thank you. CHAIRMAN CARTER: Thank you very much, sir. Commissioner Coletta. COMMISSIONER COLETTA: Commissioner Carter, I want to compliment Commissioner Mac'Kie for her offer. It was very sincere. And I think it really summed up where we're coming from, Page 53 May 22, 2001 I don't think anybody can miss the point here of how we feel about this. We're -- we're not out there to take something from somebody without recourse. I challenge the attorney that was just up here a minute ago to take the videotape of the little clip of this little presentation and give it to his client and let her view it and let her make her own decisions. CHAIRMAN CARTER: Commissioner Henning. COMMISSIONER HENNING: Dr. Carter, thank you. I--the attorney representing the -- his client, I -- I must disagree, is -- a club out there is for the public, but so is any other business in Collier County, whether it be a bar or a restaurant. There's no difference. The acquisition is -- will he want -- they want to make available to the public is no different than those two examples. And besides, the state of the property right now and the condition that it is, nobody can use it, not even the owners. So if -- if we was to own it, I would -- I know that it would be cleaned up for the use of the public. CHAIRMAN CARTER: Comments appreciated. Commissioner Fiala? COMMISSIONER FIALA: Yes. I'd like to make a motion that staff move forward -- am I allowed to do this? CHAIRMAN CARTER: Not yet. We have one more public speaker. COMMISSIONER FIALA: Oh, I am sorry. CHAIRMAN CARTER: Then you -- then I will entertain your motion. Brad? Brad Cornell waived. MR. OLLIFF: Mr. Cornell waived, and you will -- CHAIRMAN CARTER: Then I will entertain your motion. MR. OLLIFF: Mr. Chairman, I did overlook one additional speaker slip, Nicole Ryan. MS. RYAN: Good morning. CHAIRMAN CARTER: Good morning. Page 54 May 22, 2001 MS. RYAN: For the record, Nicole Ryan representing The Conservancy of Southwest Florida. And, just quickly, The Conservancy fully supports staff's recommendation to move ahead with negotiating on this property for a willing seller acquisition. We also urge the county to utilize the expertise of land trusts such as the trust for public land. And, of course, we'd like to remind you that The Conservancy is also a land trust and though we don't have the money to outright buy this property, we certainly would help if it's needed. Thank you. CHAIRMAN CARTER: Thank you. We appreciate your offer. I think it's a wonderful suggestion. We've got all kinds of options here. I entertain your motion, Commissioner Fiala. COMMISSIONER FIALA: Yes. I'd like to make a motion that staff move forward -- continue to move forward in negotiating a willing sale with a -- the owner who would like to have this land cared for in a sentimental and historical way. COMMISSIONER MAC'KIE: Second. CHAIRMAN CARTER: I have a motion by-- COMMISSIONER MAC'KIE: Staff's recommendation -- MR. OCHS: Sorry, Mr. Chairman. I presume that includes also authorization to move forward with the necessary budget amendments to obtain the appraisals and also the authorization - CHAIRMAN CARTER: Whatever Recommendation No. I -- COMMISSIONER FIALA: Yes, sir. CHAIRMAN CARTER: -- Commissioner Fiala, would you incorporate all of that within it -- with the second incorporation? COMMISSIONER FIALA: I certainly will. CHAIRMAN CARTER: I have a -- I have a motion by Commissioner Mac'Kie -- or by Commissioner Fiala, second by Commissioner Mac'Kie. Comments. COMMISSIONER MAC'KIE: And just in case our attorney -- Page 55 May 22, 2001 and this isn't personal to you, sir. And so I apologize to the extent I might have been personal about it because this is just something that I feel strongly about. And I do have some emotion in it which I know that Mrs. Stouffer does too. But just in case she actually is watching this or does get to see this tape, I wanted to take the chance to tell her that we want to use this property as she wants it used, and that is to allow the public access to the beach, that we would love to find some way to work with her to memorialize this in honor of her deceased husband. If there is anything we could do to -- to work with her, if the end result is that the county or the state or this land trust will own the property as a result of eminent domain, I just beg her to consider to working directly with the county through her attorney, of course, but working as a willing seller, if not with the county, to The Conservancy, to this lands trust -- CHAIRMAN CARTER: Public lands trust. COMMISSIONER MAC'KIE: -- to whomever she might trust ownership of this land or even a conservation easement or some other method by which we could allow the property to be used for the purpose she wishes. And -- and whatever we could do to help with that, I just wanted to take the opportunity to make that sincere offer that I'd personally love to meet with her, I'd work with her, whatever I could do to help move this along. There are creative ways we could do this that would honor the sentiment that she has for the property. COMMISSIONER FIALA: Yeah. If I were Mrs. Stouffer, I know I would not want my property be taken. I would want to offer it in memory of my husband and -- and work on an agreement whereby it's something that's held very special for eternity. CHAIRMAN CARTER: Okay. Any other comments on the Page 56 May 22, 2001 board? Therefore, I call the motion. All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Opposed by the same sign? (No response.) CHAIRMAN CARTER: Motion carries. Thank you. We are at a point where our magic fingers needs a break, as well as the board. We'll take ten. We'll be back here at about five till the hour. Thank you. (A short break was held.) Item #8A1 PRESENTATION OF THE ENVIRONMENTAL ADVISORY COUNCIL'S ANNUAL REPORT - PRESENTED; STAFF TO WORK WITH THE EAC WITH REGARD TO ITEMS A, B, C AND D IN THE REPORT AND RETURN TO THE BOARD CHAIRMAN CARTER: It's five after the hour now. All right. Welcome -- welcome back. We're going to continue with the regular agenda, and that will take us to Item No. 8-A, which would be community development and environmental services, 1, presentation of the Environmental Advisory Council's annual report. MR. LORENZ: Yes. For the record, Bill Lorenz, natural resources director. The purpose of this agenda item is to hear and accept the Environmental Advisory Council's annual report to the board. We have the -- Tom Sansbury, the chairman, and Michael Coe, the vice-chairman, here to present the report to the board. And without any further ado, Mr. Sansbury. MR. SANSBURY: Thank you, Bill. Page 57 May 22, 2001 CHAIRMAN CARTER: Good morning, Mr. Chairman. MR. SANSBURY: Good morning, sir. Good morning to you, and good morning to all the commission members. First, I'd just like to thank for myself and for Mr. Coe and the other seven members of the Environmental Advisory Council you allowing us to serve the county for the past year. We've hopefully accomplished some things. I'd like to thank staff, Bill Lorenz, Barbara Burgeson, Stan Chrzanowski, Patrick White from the county attorney's office, and the many other staff members who have been working with us over this last-year period. We feel we've accomplished some things. We feel there are a lot of things we still can assist the county commission on. I'd like to thank especially Bill Hill, who is our past chairman and councilmember who worked closely in preparing the report you have in your package today. But over the last year we've reviewed 20 land use petitions. We've been working with staff through our growth -- growth management subcommittee on a rural lands over -- monitoring rural lands oversight and eastern lands oversight. We reviewed the -- many of the growth management plan amendments. In the Land Development Code -- we've looked at various things in the land development code such as wetland impacts, wetland mitigation procedures, and beach production -- protection. And, finally, we've been working -- spending a lot of time on working on a draft for a -- an improved wetlands ordinance. And we hope during the year that we'll be back before you with that. I'd like to now introduce Mr. Vice-chairman Coe who is going to talk to you about our future plans. Thank you. MR. COE: Good morning, Commissioners. CHAIRMAN CARTER: Good morning, sir. COMMISSIONER FIALA: Good morning. MR. COE: I want to cover some of our -- our concerns and Page 58 May 22, 2001 future plans that we're looking at currently. We're very concerned of the loss, the size of the loss of wetlands, viable wetlands, within our community. And to give you a good example, a recently approved plan took out almost as much wetlands in one plan as all of Lee and Collier County lost last year. And we're seeing more and more plans like this. Yes, there's mitigation that's involved, but somehow or another there has to be a mitigation on behalf of the county also. Somehow there has to be a better balance between the owner of the property that also -- that has a right to develop it and also maintain the wetlands, because they're used by the people filtering the water, etc. We'd like to also have the opportunity to address wider areas of concern with each environmental impact statement that's done. All of them don't come before us. COMMISSIONER MAC'KIE: May I -- may I interrupt you --. MR. COE: Yes. COMMISSIONER MAC'KIE: -- Mr. Coe, on that point? How could that possibly be the case with staff because this council should be reviewing everything of an environmental nature, and then -- I mean, I apologize for the interruption, but that one just flopped my top when I read it in -- in your report. They have to be reviewing everything environmental certainly that requires an ElS. I wonder if that scope is broad enough and more important than that, frankly, for my money, is going to be your policy recommendations that I hope you'll get direction today to be giving us. But could you give me some idea what you're talking about? How could we not see it? MR. COE: I don't know exactly specific ones that I could tell you off the top of my head. We review all the projects, the developmental projects, that have an environmental impact statement. We do review those. There may be -- there may be Page 59 May 22, 2001 other things in the county that an impact statement isn't prepared for a development that comes before us, I guess, maybe for a road, for example. And that might not come before us. COMMISSIONER MAC'KIE: And I think the excavation permits probably weren't coming to you, and there's hardly a greater environmental impact in this county than those before Commissioner Coletta got ahold of them. But I'm sorry for the interruption, but that just was shocking. CHAIRMAN CARTER: Commissioner Fiala, I'll take your comment, and I then I think we need to let him finish. COMMISSIONER FIALA.' Okay. I'll be real quick. I was just wondering if that environmental impact was like -- for instance, when we were discussing Mirasol and I read all of the EAC minutes and in it it said that there were four properties, I brought that up. At the time we were told that -- by the code that we're following right now, we could only consider one at a time. And yet if we were allowed to consider all four, we would have seen the tremendous environmental impact and loss of wetlands we would have had had we been able to address it properly. Is that what you're referring to? MR. COE: Somewhat. When you mentioned all four projects together and someone had advised you that you had to look at each project individually, I'm not real cognizant of that. My understanding is that you as a board of commissioners can, in fact, make a decision that you want to have all of them viewed at the same time. And, therefore, there could have been, I assume, at least a staff presentation of all four of those projects and their impact on the environment. COMMISSIONER FIALA: Thank you. CHAIRMAN CARTER: I'm going to let him finish because I think there is probably a legal and a staff interpretation of that. And when we -- I looked at it, in all due respect, I thought we Page 60 May 22, 2001 were talking a big picture not only involving Collier but Lee County. So I'll defer that and let you finish, sir. MR. COE: We'd also like to be included in the -- in the new hearing officer discussion. We also as a board felt that it -- and I don't want to speak too narrowly here, but we felt that it may release the Environmental Advisory Council to more effectively get down to the business of writing the policy recommendations to the Board of County Commissioners and get away from the decision-making process. Therefore, the hearing officer might not be a bad idea. However, we'd like to reserve the right to take a -- to look at it which, of course, we're going to have the opportunity to. That's all I have. Thank you. CHAIRMAN CARTER: I thank you for your last comments, sir. And you said it beautifully, because it's redefining roles and responsibilities and will not only be with the Environmental Advisory Council, but the planning council will be, if approved, if it -- if, if, if, because we don't have all of it yet, but the -- the framework is policy making versus making day-to-day decision -- decisions. If we establish the right policies, then that enables you to get to where we want to be. So I think that's the framework we're talking about. Staff, do you have -- I'll take your comment. Staff, I know, has some comments on the other. So let -- let's hear from staff, and then I'll go to you, Commissioner Mac'Kie. MR. DUNNUCK: For the record, John Dunnuck, community development environmental services administrator. We'll be happy to follow up on those items. I think it's probably inappropriate to bring it up today for discussion, but we will look into all those issues because I think we are on the same page on most of them, and -- and we'll follow up with the board and bring it to a more policy-level discussion. CHAIRMAN CARTER: Commissioner Mac'Kie. Page 61 May 22, 2001 COMMISSIONER MAC'KIE: Just a couple things: One, this is exactly how this process is supposed to work, for you to be bringing us these items telling us what you've done and what you see as a role that could be more effective for your volunteer service. And I can't miss the opportunity to thank you and hope that you'll pass on to the rest of the council this commission's thanks for the volunteer work that you do. As far as, I think, if you survey people in this county, they would tell you that the environment is the highest thing on all of our radar, so you have the most important job. I mean, you are protecting and we are looking to you to give us advice on how to protect the most important assets we have in this county. And in that regard, I'm going to make a motion that we direct staff so that it's official, although, John, I appreciate that you would do that already, that we direct staff to work with your council to adopt all of the four areas that you've identified as part of your future plans or your concerns. Specifically I'd like to mention -- I have already mentioned the ElS area, but also the hearing examiner, I've got to take this opportunity to say publicly something that I've said privately already to our county manager. And that is I don't know where staff got the direction they got for the hearing examiner ordinance that's presently being drafted because the way I heard it and the way certainly was my intention when I voted on it was let's walk before we run, take baby steps here. Two things: I mean, I want to see the hearing examiner start with small items like pool screen enclosure variances where the rules are clear and no discretion is necessary and no interpretation is necessary. And that is, frankly, not a useful way to -- to employ this board's time. But on the larger issues of rezones and those items, I am nowhere close to willing or ready to give those to a hearing examiner for the simple reason that I Page 62 May 22, 2001 need a lot of advice from your council on whether our codes are adequate to protect our assets. And I'm willing to bet you that they're not. If they were, then every time a -- an applicant was in front of this board, we wouldn't be dickering over could you give us a few more feet on the setback or could you give us a little bit more on the berm or the landscaping or whatever it is. The bottom line is, this board has the responsibility to adopt a code that we absolutely want enforced to the letter. That will be great for the development community because they'll know what they're entitled to. Then they'll go to the hearing examiner, and the hearing examiner will say, "Yes, you comply with the code," or "No, you don't." but our code is not in a condition at this moment to be ready to be turned over for that kind of a black-and-white examination. I've said that to Mr. Olliff. I hope that a majority of the board agrees with that when we get down to decision-making time, but I think the current draft has gone too far. Bottom line is I want to make a motion to ask staff to work with the Environmental Advisory Council on A, B, C, and D on page 3 of our -- of our staff report, which are the council concerns and future plans and that we -- we ask them to particularly work on giving us some policy direction. And hopefully we can take some of the day to day off of your plate as we move forward with the hearing examiner and be able to get some good advice from you. And, again, thank you, thank you, thank you for the work that you -- CHAIRMAN CARTER: Okay. I have a motion from Commissioner Mac'Kie. Do I have a second? COMMISSIONER FIALA: Second. CHAIRMAN CARTER: A second by Commissioner Fiala. Discussion? Public speakers? MR. OLLIFF: No, sir. Page 63 May 22, 2001 CHAIRMAN CARTER: Okay. Any discussion? (No response.) CHAIRMAN CARTER: All in favor signify by saying aye. (All commissioners excepting Commissioner Henning responded.) CHAIRMAN CARTER: Opposed by the same sign? (No response.) CHAIRMAN CARTER: Motion carries 5-0. Again, thank you very much on behalf of the board for your work. And in regards to the hearing officer, Commissioner Mac'Kie, I think there will be another forum where that will be thoroughly examined so that everyone will have an idea what it is and what it isn't and how far we need to go or not go. Commissioner Henning. COMMISSIONER HENNING: Mr. Chairman, I recognize that I abstained from that vote. I didn't -- we didn't have enough discussion from that, so I'm abstaining from it. CHAIRMAN CARTER: Are you abstaining, affirming, or going negative? Did you say nay? Did you say nay? COMMISSIONER HENNING: COMMISSIONER MAC'KIE: COMMISSIONER HENNING: discussion. CHAIRMAN CARTER: Well, okay. discussion did you need, sir? I'm abstaining. Is that an option, Mr. Weigel? We did not have enough Let me back up. What COMMISSIONER HENNING: Okay. Well, I wanted to see that -- the hearing examiner to be included in the valuation of a proposed hearing examiner. I think that we need as much input as we can. Now, I -- the first motion that you made is to adopt the EAC's recommendations on Item A, B, and C -- COMMISSIONER MAC'KIE: And D. CHAIRMAN CARTER: And D. Page 64 May 22, 2001 COMMISSIONER HENNING: And I think the process is that they would recommend -- make recommendations to the board of commissioners for consideration of adoption. COMMISSIONER MAC'KIE: That's exactly what it says, that they be included in evaluation of the hearing examiner. COMMISSIONER HENNING'- Well, what I hear -- heard from your motion was to adopt, bring back for adoption. COMMISSIONER MAC'KIE: I want to -- I want -- let me be clear because my -- my motion is that we direct staff to work with the EAC to agree with, to adopt, to allow them to do the items they've identified as A, B, C, and D on that page. CHAIRMAN CARTER: Which comes back to the Board of County Commissioners for final approval. COMMISSIONER HENNING: Okay. That's what the clarification that I needed. Thank you. So it is 5-0. CHAIRMAN CARTER: Okay. Fine. Thank you very much. Mr. Dunnuck. Item #8A2 RESOLUTION 2001-104 URGING THE REEVALUATION OF THE ENDANGERMENT OF THE MANATEE - ADOPTED MR. DUNNUCK'- The next item on the agenda has to do with a resolution that was presented by the -- the City of Naples to the Board of County Commissioners. COMMISSIONER MAC'KIE: No, no, no. COMMISSIONER FIALA: City of Marco Island. MR. DUNNUCK: I mean -- excuse me. I'm sorry. The City of Marco Island. CHAIRMAN CARTER: This is 8(A)2. This is the manatee resolution; right? Page 65 May 22, 2001 MR. DUNNUCK: Yes. Yes. -- requesting that we adopt a companion resolution basically supporting -- supporting the notion that it would be more of a public process. Through the -- through the settlement agreement between the Florida Fish and Wildlife and the Save the Manatee organization, it was a close process where intervenors from the community, some of the 40,000 voters, weren't allowed to participate and express their concerns with how the process was working. This resolution is requesting that -- that they reevaluate the settlement agreement and they come back and allow that participation. Staff is in support. CHAIRMAN CARTER: Questions by members of the board? Commissioner Mac'Kie. COMMISSIONER MAC'KIE: It would be good if -- I mean, anybody would support a resolution that said allow more public participation before you settle an issue. But this is a resolution that has to do with the settlement of a lawsuit that's only referenced to Collier County, because I looked it up on the web. It's available. I hope everybody did. There's one reference to Collier County. This doesn't have anything to do with us. It says that there's a recommendation that by 2004 there will be some evaluation of the acceptability of our Ten Thousand Islands manatee plan. But we are just feeding the hysteria and getting into some business that is not ours if -- by -- we're picking a fight that's not our fight. I can't imagine why we would butt into this. It's not our fight. COMMISSIONER FIALA.' If it even -- CHAIRMAN CARTER: Commissioner-- Commissioner Fiala. COMMISSIONER FIALA: Thank you. If it even mentions Collier County, I have to support Marco Island and say it does not hurt to go back and discuss it more thoroughly and make sure that everything in there is -- is a proposal with which we agree. Page 66 May 22, 2001 And I support our Collier County staff's resolution. I like the fact that they changed sitings -- I think that was a good one -- and added county. And I would like to go forward with that. Do we have any speakers ? COMMISSIONER MAC'KIE: Can I just make one other comment? It's my last one. CHAIRMAN CARTER: Got to take comments from the board first. Then we go to speakers. COMMISSIONER FIALA: Okay. COMMISSIONER MAC'KIE: My -- my last comment is, I think we look a little silly asking somebody not to settle a lawsuit that's already been settled. This is -- they've already signed the document that we're asking them to reconsider. CHAIRMAN CARTER: Commissioner Henning. COMMISSIONER HENNING: I -- in the settlement agreement I see no basis for the fish and wildlife to settle on it. And we will be affected by possibly a -- a no-voting area in Collier County so -- COMMISSIONER MAC'KIE: It doesn't say that. COMMISSIONER HENNING: I agree that we need to move this resolution. CHAIRMAN CARTER: All right. Let's go to -- I'm sorry. Commissioner Coletta. COMMISSIONER COLETTA: Thank you, Commissioner Carter. Yeah. The people in Everglades City have -- have great concerns over this whole issue. Now, possibly there might not be anything to it, as Commissioner Mac'Kie said. But I think I'd rather err on the side of caution and keep this in front of them. Generally when people are going to be making a decision they're going to be wanting to listen to opinions out there. But Everglades City and the manatee -- Manatee Road area, we have quite a concern in there. Rookery Bay even has a concern how it Page 67 May 22, 2001 would affect them. CHAIRMAN CARTER: Well, I'm counting four votes in support of the motion just by listening, but let us go to public speakers. MR. OLLIFF: Mr. Chairman, you've got about a dozen registered speakers, so I'm going to ask that the next speaker just start making their way to the podium so you can be ready to make your way up and move this along as quickly as we can. The first speaker is Cynthia Frisch followed by Laura Combs. MS. FRISCH: Good morning and thank you for the opportunity to speak. My name is Cynthia Frisch, and I'm a Naples resident. I'm also a boater, and I'm also the Florida representative of the Pegasus Foundation. This is a foundation involving the environmental and animal protection, and we are also plaintiffs in the manatee lawsuit. And for today I urge the commission to reject this resolution, and I'll explain why. First of all, what's happened today is very surprising to me. The plaintiffs' groups didn't want to have a lawsuit. I really to want make that clear. But after years of trying to get stronger enforcement, more education, and selected critical places where manatees could mate and nurse and continue long-term survival, we really had no choice. The agencies were not waking up to what was needed, and they really weren't doing the job at the level that they needed to do it at. What was unfortunate was that last fall the fish and wildlife service came around the state and did presentations where they put up maps with many little red dots that showed potential places where there might be refuge sites. They gave no scientific explanation. They gave no information, and they didn't reveal the fact that only a small number of those places would actually be the actual final sites and that all public input would Page 68 May 22, 2001 be involved in determining those sites. And so the anger that's expressed now that comes through this resolution is in part a result of that public relations element that really was not addressed properly. Now, also, it's important to know that the state is working closely with the fish and wildlife service so that the full picture is being taken into account all over Florida. And also, as was said, Collier County even -- even isn't part of the state case, not even included as one of the hot spots. So you have to understand that this is the truth, and those that receive this resolution will know this to be true. And, therefore, it doesn't reflect an accurate picture, and it really doesn't reflect well on the Naples community. Now, I also want to address that this truth is important, and it's important that you have all of the facts. Now, unfortunately the fact that 47 percent increase in the manatee population, this is not accurate as well. What happened was, is that the survey this year had perfect weather conditions. The scientists have always anticipated that this was the number out there. And it's also important that you get information from people like Dr. James Powell. He was the one that oversaw this study. He was with the Florida Marine Research Institute, and he tries to explain that isolated numbers like this do not give accurate information about the population's long-term survival. You have to know how many adults are there, how many reproductive females, what is the ratio of the boats' increasing relationship to this. There are so many elements that are being analyzed by the leading manatee scientists to give us this accurate picture, this accurate information, and that a snapshot figure isn't accurate because next year if they only count 2200 or 2500, will we have to say then that 47 percent in -- decrease happened this year. Page 69 May 22, 2001 We can't react and respond to these figures. We must follow the wisdom of the scientists who have been working on this for years. Now, I realize at the heart of this is property rights, and the issue of property rights is a very important one. But the settlement in the end is about balance. And it's also important to recognize that in a recent poll done by this -- a company called Beldon, Bushonello, and Stewart Research Communications (phonetic), that 64 percent of Floridians strongly favor reducing the speed limit for boats on waterways while only 6 percent strongly opposed. Sixty-four percent support it. So in supporting a resolution like this, you're supporting only 6 percent of the Florida citizens. As part of this 64 percent this really concerns me. And as part of boating public referred to in the resolution, I don't feel represented. I realize that some people in this community felt left out of the process of the state case. But for the federal case, others intervened and were included. The lawsuit was in the papers from the very beginning. They could have inter -- intervened as the Marine Industries Association of Florida intervened, the Marine Operator's Association of America intervened, the National Marine Manufacturer's Association intervened, and the Association of Florida Community Developers intervened. For whatever reason, those in this county in opposition didn't intervene at the time when they could have. It doesn't mean that the settlement is bad or is not inclusive. In its very design it is inclusive. It's a process that includes public input, and this has been happening and will continue to happen all along the way. So, again, it's very important. And if the manatees -- you know, it -- I'm rushing to finish. I realize my time is running out. But we must find a balance. We must work together. Pegasus is Page 70 May 22, 2001 beginning to work with educational issues and how can we bring this anger and this opposition to a more peaceful place where we can be productive together. Saving the manatees is also about saving ourselves. The manatees' future is just a glimpse of our own future unless we make some changes. If we can't save the manatee in our community, what does that say about us as a community? If we can't save the manatee, what can we save? For the manatee and for ourselves, please do not support this resolution. Please research into this issue further so that the Naples public is reflected accurately. CHAIRMAN CARTER: Thank you for your input. Next speaker, please. MR. OLLIFF'. The next speaker is Laura Combs followed by Bobbie Lee Hasty. MS. COMBS: Good morning, Commissioners. My name is Laura Ruhannah (phonetic) Combs, and I am the Southwest Florida representative for Save the Manatee Club. And thank you for giving me a couple minutes to speak this morning. I strongly agree with what Cynthia Frisch has presented to you and have a couple other points I'd want to make, particularly about this resolution. First and foremost, this resolution asks that you urge the Fish and Wildlife Conservation Commission to reconsider the endangerment of the manatee before signing or settling the lawsuit with Save the Manatee Club and the other plaintiffs. And as has been -- as has been pointed out, that settlement has occurred. On April 19th Fish and Wildlife Conservation Commission did do that. So what this proposed resolution is urging is a moot point. Second of all, the resolution alleges that the rights of voters, shoreline property owners, and the impacts to Florida's economy Page 71 May 22, 2001 were not considered. And there's a few points there that need to be addressed. First of all, regarding the effects on Florida's economy, other than some proposals in Brevard County, there have not been any specific proposals made as far as how to proceed with manatee protection. And, as a result, there's no way to measure any economic impacts. Regarding the rights of shoreline property owners, depending on the types of protection passed, shoreline property owners will always have access to their property. And it's important to note that the one scientific study completed by Dr. Fred Bell on the effects of manatee protection on shoreline property shows an increase of between 0 and 20 percent in property values. Regarding the rights of boaters, as I said right now, other than in Brevard County, there are not specific propose -- proposals made. Boaters, even with whatever proposals come up in the future, will still be able to boat in the waters of the state of Florida. They may have to change their behaviors and slow down in a few areas. They might have to use a different way of accessing an area in some very small areas. But right now we can't even tell because those proposals have not been made. And Collier County is not on the list of counties being considered for refuges or hot spots. We're looking at, in 2004, conduct -- conducting a review of the available data to see if more manatee protection is need in the Ten Thousand Islands area. And by the time that rolls around, there will be new information available because of the federal studies that are being conducted from aerial surveys and telemetry data. So the latest information will be available to all of us to determine if anything else is needed in the Ten Thousand Islands area. Page 72 May 22, 2001 I only -- the resolution, the supporting documents talk to the fact that when Ten Thousand Islands is reviewed that the manatee protection plan for Collier County must also be reviewed for the settlement. And that's simply not true. Manatee protection plans aren't included in the settlement at all. And for these reasons and the others that have already been addressed, we're urging you to not adopt this resolution. And if the commission feels that it needs to make a statement to the resolution, we would be more than happy to provide you with any factual information and data that we can to convey that message. Thank you for your time. CHAIRMAN CARTER: Thank you. Next speaker, please. MR. OLLIFF: Bobbie Lee Hasty followed by Jim Kalvin. MS. HASTY: For the record, my name is Bobbie Lee Hasty. I'm the chair for the Calusa Group Sierra Club. And I'm here today representing the Sierra Club. I'd like to let you know, first of all, that I got quite a few e-mails when the manatee suits came about, and some of them were from people in Rookery Bay who had the misconception that they could not get to their homes any longer by their boats, which is crazy. I also heard from people on North Captiva that live up by Safety Harbor who said, "We're not going to be able to go home. And the only way we can get home is to put our boat at the boat dock that we purchased when we bought our property. It has just been mass hysteria. It is ridiculous. I am here today to oppose the adoption of the resolution concerning the manatee settlement. The settlement is done; it's over with. It's been settled on both the federal and the state levels. I know there are people who are upset about this, but they will have a chance to comment in public forums coming up. And we as human beings have a responsibility to protect other living species on this planet. It is not our right to go into their Page 73 May 22, 2001 habitat and mow them down with our motorboats maiming them and killing them. And recently I had some children from a Fort Myers school e- mail wanting to know what was Sierra Club doing to help protect the manatee. And it was amazing to go out there and talk to these kids because they were so gung ho. They had seen the stuff in the papers. They had heard all the stuff about everyone and the boating industry being unhappy with the manatee settlement agreement. And if you could have seen the reaction from these children and how gung ho they were to help and know what to do, that was something. And we ask that you will not approve this. Thank you. CHAIRMAN CARTER: Thank you. Next speaker, please. MR. OLLIFF: Next speaker is Jim Kalvin followed by Nicole Ryan. MR. KALVIN: Good morning. My name is Jim Kalvin. I'm the founder and president of a group called Standing Watch, which is a nonprofit boaters' property owners' rights group. I'm also speaking as an individual. Having lived in Collier County since 1965, I remember when there was a column in the paper every Friday called "Manatee Alert." the animals were so rare back then that you called the newspaper when you saw one. Back in 1974 when they first started keeping track of population statistics, since 1974 the animals have increased tremendously locally, in Lee County, and in all other areas where these restrictions are proposed. Standing Watch asked for and received permission to use county property through the Department of Natural Resources with Bill Lorenz's help, and back in November 13th Chairman Carter was good enough to come attend. We discussed, along with the environmental coalition members, exactly why we thought we needed this additional protection, why we needed this lawsuit settlement Page 74 May 22, 2001 agreement in the State of Florida. We had people from both sides of the aisle there. We had some active debate. And we are firm believers in communication. We will not have a public forum without inviting all sides present. Standing Watch recently had to spend $8,000 to file a motion to be in the same room to discuss the settlement of the state lawsuit. The people of the State of Florida were denied access in the settlement talks. The Marine Industries Association of Florida filed a motion to intervene January 2000. Six months later they were denied by the Northern District Court of Florida. They appealed. The 11th Circuit Court in Atlanta overturned the Florida Court's ruling saying that the people most certainly did have a right to be in that meeting room, most certainly did have a right to be heard. It was on the heels of that ruling that Standing Watch filed on behalf of its 6,000 statewide members, more than half of which are from Collier County, to be heard as well. We -- Commissioner Mac'Kie, I have to take exception that it's not our fight. It is our fight, and we don't have to wait until 2004 to be involved in it. It's affecting us right now. I'm a marine contractor. I'm not a developer, as has been alluded in papers throughout the State of Florida. I build single- family docks behind people's homes. I don't build marinas. All we do is come to your house and give you a place to put your boat. Well, now, that dock is called an access point. And in the county waters it's going to fall under the DEP and the corps of engineer criteria. They're going to charge you an additional $526 per-boat access point before you can even get your permit considered. In other words, if your dock is large enough to have two boats tied to it, you're going to pay over a thousand dollars in addition to your permit whether or not you get your permit. Page 75 May 22, 2001 That's a pretty drastic impact right now. Less than five days after the signing of the state settlement agreement, the coalition was in Hillsborough County at their county commission meeting urging them to take stronger action on their own county manatee protection plan. This is not waiting for the state FWC plan to come to county to county to implement the plan and work with the public as called for in the settlement agreement. They're taking it right now. The public is being circumvented. We have to file countersuits to be heard. That's not the way that our government was set up to run. The population by the Florida Marine Research Institute has increased by an average net -- that's a very important word now -- average net of 5 1/2 percent per year. We're not saying that the manatee population -- and I have never published that the manatee population increased about 57 per -- 47 percent since last year. We understand that the minimum observed population samples are just that; they're a sample. It does show a trend over the 24-year period, 26-year period of over 5 1/2 percent per year. We want that to be recognized. And the conditions in Collier County were not ideal for counting. I flew in the airplane with Tom Pitchford from the Florida Marine Research Institute during that official count. And anytime we have cold weather, as everybody here who is a boater knows, when it's cold in Collier County, it's a northwest wind and our water looks like coffee. Tom Pitchford was stunned when he saw how murky, how black, how muddy, how stirred up our water was. We still had a record count. And we need some common sense brought back into this. We want the public to have participation, and we certainly appreciate Collier County's help, and this most definitely does affect us right now, and it's going to continue to affect us greater Page 76 May 22, 2001 as we move down the pike. COMMISSIONER HENNING: I have a question, Mr. Chairman, if you don't mind. CHAIRMAN CARTER: Yes. COMMISSIONER HENNING: The $500 for a new access point or a dock, what -- where is that money going to? MR. KALVIN: You've got a couple coalition members in the audience that I'm sure could probably answer that who are plaintiffs in the lawsuit. I'm told it's a conservation contribution fee. And there is a federal organization set up to see that that goes towards manatee protection, which I guess is law enforcement. I asked a question at a federal meeting about two weeks ago where that money went and who was going to spend it, and they would not or could not answer that question for me. COMMISSIONER HENNING: One more question: And I know you've been around speaking to groups and that. How many people have you spoken to City of Naples that have water access? MR. KALVIN: The City of Naples -- Dr. John Staiger is probably the person I've talked to most. Maybe I don't understand the question. COMMISSIONER HENNING: Well, residents that own property in the City of Naples. MR. KALVIN: Well, we have a very large membership from the City of Naples, so they're very concerned about preserving their access. And one important thing to look at, yeah, you can have a waterfront home, and you're going to have access to your property. How are you going to get it serviced? What's going to - - how are you going to get your boat serviced? We're losing commercial space. Collier County has always been a vibrant waterfront community. As you've seen in the paper over the last month, Page 77 May 22, 2001 we've lost all our marinas now, our public marinas. We've lost our ability to service the seawalls or riprap, any of the other things that we have to deal with here in Collier County. So having waterfront property and being able to come and go because you have a sticker that says you are a resident is only part of the picture. Number one, that incites class warfare. You know, you go -- come in and out of your canal, but we're not going to let anybody else come in. I'm that other person. And on the off Friday that I want to go fishing, you're denying me that right, number one. Number two, how are you going to service those -- those waterfront areas? They're very concerned. COMMISSIONER HENNING: Thank you. CHAIRMAN CARTER: Thank you. Next speaker, please. MR. OLLIFF: Next speaker is Nicole Ryan followed by Fran Stallings. MS. RYAN: Good morning again. For the record, Nicole Ryan, Conservancy of Southwest Florida. The Conservancy urges the board to vote against this resolution. Now, let me say The Conservancy is in favor of both manatee protection and the rights of boaters. We stated publicly that we support appropriate sanctuaries and refuges in areas that have been based upon this science. We support more education, better enforcement, and new and innovative technologies that will design boats that are safer for manatees. We believe that all of these components are going to be necessary in order to take the manatee off of the endangered species list. And to that end, Conservancy president, Kathy Prosser, along with several Conservancy staff members met with Jackie Barr, who will probably be speaking later, and several other marine industry representatives in order to look towards collaborative efforts for communications between environmental and boaters' interests. Now, we hope Page 78 May 22, 2001 these dialogues continue because we found them very positive in our meetings. Though The Conservancy was not part of the lawsuit, we were not a participant, we do believe that the manatee is endangered. We are glad that county staff took Marco Island's phrase of alleged endangerment off the resolution because we believe the manatee is endangered, as does the state and federal governments. The Conservancy also believes in periodic reevaluation of manatee populations, populations of all listed species, in order to establish accurate counts and to determine what a sustainable population really would be. We're confident that when the manatee populations are reevaluated, they will unfortunately still remain endangered. However, our goal is the recovery of all listed species. The irony is that if you do list the manatee too quickly and proper and adequate manatee protections are in place, they're going to end up right back on the endangered species list. That being said, The Conservancy is concerned about the resolution before you today, and we urge you to vote against this resolution as written due to its overall negative tone. This resolution may be seen as an anti-manatee statement in the community and in the state. We hope that the resolution could be reworded to include more supportive language for manatee recovery. This would be a positive step towards manatee protection. Thank you. CHAIRMAN CARTER: Thank you. COMMISSIONER FIAI. A.' Can I ask a question? MS. RYAN: Uh-huh. COMMISSIONER FIALA-' Do you feel the adoption of this resolution will any way detract from -- from protecting the manatee and saving the manatee? And I'm especially concerned because the -- the public -- I don't think The Conservancy was Page 79 May 22, 200t aware of this, but the public wasn't invited to be a part of the negotiations until they sued to do that? COMMISSIONER MAC'KIE: I'm sorry. But when there's a lawsuit being settled, the only people who get to be involved in the settlement are the parties to the lawsuit, even if it affects the whole wide world. So that's just perfectly normal that if you want to be involved in the settlement of a lawsuit, you have to sue, COMMISSIONER FIALA: Okay. Okay. And then the second thing, do you feel the adoption of this resolution would stop us from protecting the manatees? MS. RYAN: I don't believe so because it's asking that the state not sign a settlement that has already been signed. So I think that probably the biggest thing that this will do, is to some people, it will show that Collier County is negative towards the manatee. Other people might interpret that differently. But it's just -- the way that it's written, it has a negative tone. CHAIRMAN CARTER: Commissioner Coletta. COMMISSIONER COLETTA: Yeah. If-- if I may personally speak for myself -- and I'm sure the other commissioners will agree -- my supporting of this particular proclamation is not in any way against the manatee. The areas that I represent, Everglades City, the Manatee Road area, also The Conservancy down at the end of it with the Rookery Bay, they're very protective of this resource. They see it as a tremendous tourist attraction. These people aren't negative against the manatee. They're very careful, and the -- they respect it at all times and go way out of their way to avoid any kind of contact with it. But they do feel threatened by this. And if we neglect to do this, they're going to feel even more threatened as time goes along. This isn't a slap to The Conservancy or the Manatee Foundation or any of the environmental groups out there. This is a way to try Page 80 May 22, 2001 to bring a little bit of a balance back and reassure the public out there that we are interested in their rights too. MS. RYAN: And we believe that could be done with different language in a resolution, and that's our concern. If you want to adopt a resolution, that's fine, but this just has an overall negative tone that we're concerned about. COMMISSIONER COLETTA: I agree with you about the negative content, but I -- I think this is a reaction on the part of the public we're trying to answer. MS. RYAN: Thank you. COMMISSIONER COLETTA: Thank you. CHAIRMAN CARTER: Thank you. Mr. Stallings. MR. OLLIFF: Fran Stallings to be followed Lee Lyon. COMMISSIONER MAC'KIE: Fran, welcome back. You don't have to worry about getting smacked around, treated rudely by this county commission. I'm glad you're here. MR. STALLINGS: Well, I appreciate the opportunity. I'm testifying today from a perspective from one of the plaintiffs in the suit. There was several individuals that were plaintiffs, and I was one of them. Also, I represent the Responsible Growth Management Coalition, the Environmental Confederation of Southwest Florida, and the National Wildlife Coalition. Just so I don't run out of time here before I do this, I want to read the last paragraph of a resolution adopted by the Fish and Wildlife Conservation Commission which was added on after they had signed or as a part of the signing of the settlement. It reads as follows: In developing rules contemplated by the settlement agreement, the FWCC staff shall insure that the rule- making process shall include a broad and balanced range of statewide and local interests, including, but not limited to, plaintiffs' environmental interests and commercial and recreational user interests. The FWCC staff shall consult these Page 81 May 22, 2001 interests prior to each initial rule proposal and during each rule- making process. However, these consultations shall not delay rule making under the settlement agreement. So the Fish and Wildlife Conservation Commission recognize the need to have all parties involved and as a result passed this particular resolution. Now, on the state suit on October -- excuse me, on October the 19th, 2000, Governor Bush called what we refer to as a summit conference on the manatee suit, and that was open to a broad range of participants. And sitting at the head table as a panelist in it was Ted Fossgrin (phonetic), the executive director of the Coastal Conservation Association of Florida; Jim Kalvin, whom you know; Bill Hunter, president, Association of Florida Community Developers; John Sprague, the president of the Marine Industries Association of Florida; Pat Riley, president of Southwest Florida Marine Industries Association; Jerry Sansum (phonetic), executive director, Organized Fishermen of Florida; and Mick Blackstone, vice president of government affairs, National Marine Manufacturers' Association. So back last October these people were all sitting there at the head table having input on the state suit. And before the Wildlife and Conservation Commission settled the suit, they had two hearings where that settlement was the specific topic of discussion. So even though the intervenors was not allowed to do so until basically the thing was settled, there have been opportunities for input along the way, and there will continue to be opportunities for input along the way. So it has been a closed thing. And one of the other individuals who testified, I gave a list of the intervenors in the federal suit, which were the Association of Florida Community Developers, National Marine Manufacturers' Association, Marine Operators' Association of America, the Page 82 May 22, 2001 Marine Industries Association of Florida. And they were represented by Huntoon and Williams of Washington, D.C., with the attorney, Virginia Albright, there who is supposed to be one of the fiercest attorneys around for attacking green groups sitting at the table with us in the negotiations. So it's not been a closed shop, and it's not going to continue. So it's not -- it's going to be an open forum as we move along. So I just wanted to make those things clear so I didn't run out of time. Also, the whole situation has been blown way out of proportion in a sense that the manatee suddenly has become a great white shark that's out there gobbling hapless boaters. And that just isn't the way it's happening. And part of that, I think, is - - well, I'll try not to hit on attorneys too much here, but I read a letter that was sent out by the law firm in Tallahassee that Wayde Hopping heads up saying that those dastardly devils who are the plaintiffs in this suit are wanting to declare every square foot of water in the State of Florida either an idle or slow-speed zone, plus 3 miles out in the open gulf and the open Atlantic. That just wasn't true. And a lot of that kind of hysteria went about or was present. I would simply say if that attorney was out fishing that day trolling for clients and the product is called, you know, maximizing billable hours. One of the things I think helped with the settlement is once a lot of that speculation and misinformation was put aside and we got down to the nitty gritty of it, the suit did get settled. And I just would say that Governor Bush was very much in favor of the settlement. When we had the final negotiations there, he sent his cabinet aide, Colleen Castille (phonetic), over to lobby the Fish and Wildlife Conservation, and they approved the settlement with only one negative vote. So I would, again, hope if you do approve some kind of Page 83 May 22, 2001 resolution, that you would make it into something that's positive because the Marco thing started out as a resolution to President Bush to put the suit or the implementation of it on hold which is counter to the U.S. Constitution even under the separation of powers, between the executive, the judicial, and the legislative. So it had a negative thing about it by starting out to ask the President to do something illegal. So if you do go forward with it, I would hope you would make something positive and constructive that helps the situation. And I do appreciate your concern, and I appreciate the privilege of addressing you about it and be happy to take any questions you may have. COMMISSIONER HENNING: Mr. Stalling, if you don't mind, tell us about this $500 fee for -- MR. STALLINGS: My understanding of that is that it's under consideration. At one time the Fish and Wildlife -- U.S. Fish and Wildlife Service had a program whereby they put monies into it that were used, as Jim was indicating, for enforcement, restoration measures, and things of that sort. And they were looking some way or another to create a kitty to -- to put more money into preserving the species. And one of the things under consideration is a fee per boat slip and whether or not that's going to become reality and approved. I don't know, but it definitely is under consideration. And it's important to note that that money would not go to any of the plaintiffs. In other words, it would be administered by the federal government. MR. HENNING.' Thank you. MR. STALLINGS: Thank you. CHAIRMAN CARTER: Any questions? Thank you. Have a pleasant, safe journey and move to Jacksonville. MR. OLLIFF: The next speaker is Lee Lyon and followed by Phil Osborne. MR. LYON: Yes, I'm Lee Lyon. I appreciate having the Page 84 May 22, 2001 opportunity to come before you to speak. As a representative of the Marine Industries Association of Collier County and also a member of the ad hoc committee that worked with Dr. Stallings and was commissioned by you people to put the original manatee protection plan into effect, we are supporting the staff in this resolution. Originally when we put the manatee protection plan into effect, it was agreed upon that we would at some point in time come back and revisit it. But until we have more factual information as to how our plan is processed at this point in time and until the state and the federal government have finished up with their hearings that they're still having and revisiting all of the different sites, I think we need to support the staff with what's being said in here today. Any questions? CHAIRMAN CARTER: No. Thank you, sir. Next speaker. MR. OLLIFF: Next speaker is Phil Osborne followed by Scott Dunnuck. MR. OSBORNE: It's still a good morning, Commissioners. I appreciate the opportunity to come before you again. I'm Phil Osborne, president of the Marine Industries Association of Collier County. I want to thank you again for this opportunity and your support for this resolution. We feel that everybody's rights and opinions in matters that affect them as this plan calls for mandates that -- that they be given that opportunity in an open forum. There are so many areas of this lawsuit that remain in question as far as the settlement. And although Commissioner Mac'Kie indicates that Collier County is not a target until 2004, that isn't necessarily true. And as things progress forward and plans are -- are laid out, Collier County certainly could become a bigger target than is currently being discussed. And so, consequently, we do support this resolution and protecting the rights of boaters and -- and marine industry impact in Collier County. Thank you. Do you have any other questions? Page 85 May 22, 2001 CHAIRMAN CARTER: Questions? Next speaker, please. MR. OSBORNE: Thank you. MR. OLLIFF: The next speaker is Scott Dunnuck followed by Brad Cornell. MR. DUNNUCK: Scott Dunnuck. First, I'd like to thank you for adding this to the Collier County agenda. It's the first time in the last six months we were able to speak on a local opinion about this manatee issue. As you can tell from the opinions in the papers, that a lot of the residents are very upset about both the state and the federal lawsuit. I've been -- I'm a resident of Marco Island. I've enjoyed fishing and boating in Collier County for many years. The waters in Collier are a natural resource. It brings a tremendous amount of people to our area. Unfortunately our fate -- state and federal governments have recently agreed to settle both lawsuits as it relates to the Save the Manatee Club. These environmentalists don't use legislation -- legislation and voting referendums to change law; they file lawsuits, as have previously been described. As you probably know and have read about in the papers, the manatees have risen in population over the last 26 years by 400 percent. Our current form of measuring success is all based on the mortality rate instead of the growth rate. So as more manatees inhibit our area, i.e., greater population, the more deaths we will have which will trigger the more regulation -- the more need for more regulations, once again. This is a never- ending cycle of proposed regulations. I use a simple analogy to describe our current situation. In 1900 there were very few human deaths on the roads in the State of Florida. As compared in 1900, our current deaths -- death rate on the state of Florida has risen dramatically. Why? Because more people live in Florida now than did in 1900. So if we apply the Manatee Club's logic to our road systems, we should shut Page 86 May 22, 2001 them down as soon as possible. Lastly, I want to put a little perspective on Collier County's situation. Collier County's backwaters are already about 90 percent manatee-restricted zones. This is hundreds of thousands of acres. Last year I was fortunate enough to buy a house on a canal so I could be closer to some of the areas and the best fishing grounds. Three months after moved in, I found out my whole backyard, Addison Bay, and the whole east side of Marco River there, has been shut down to a manatee slow speed, no -- no idle speed zone area. I've personally kept track of the last six months, as I am -- as I am idling through miles and miles of manatee restriction areas how many manatees I have seen. I tried to put together a nice presentational graph. And I thought you guys could understand this maybe (indicating). Okay? That's our current manatee protection plan on how many I've seen so -- Let me share with you -- all I'm asking for is scientific data to show me why these areas are -- areas are manatee zones. But I can never get an answer from anybody at the state, federal, or local level. In conclusion, I want you to think about how these regulations have affected the county. As the state and federal governments pass more and more regulations, they leave it up more to the local counties to enforce. We as Collier County citizens have been paying to enforce these arbitrary and capricious regulations. This time is -- you, the Board of County Commissioners, to take the control on the local level to change this tide of never-ending sea of regulations. And I just want to make a point that I disagree with Mr. Stallings' report on the manatee summit because I attended it with the governor back in October, and there was zero public input as that relates to the current manatee protection plan or Page 87 May 22, 2001 the current lawsuit that was settled at the State of Florida this last April. Thank you. CHAIRMAN CARTER: Thank you. MR. OLLIFF.' Fred Cornell is your last speaker who will be followed by your last registered speaker, Bob Krasowski. MR. CORNELL: Good morning. I'm Brad Cornell. I'm here on behalf of the Collier County Audubon Society. I just have one point to make, and that is that this resolution, as I read it, discusses reconsidering whether the manatee is actually endangered or not. But your voiced intentions here all have to do with public input. So it seems to me that the whole resolution is not -- is off target. So if I were you, I would -- I would scrap this resolution. And, besides, the manatee has been verified as an endangered species. The resolution also implies incorrectly that the 47 percent increase in the count means that it should no longer be endangered, and that's a false implication. So we would respectly ask for you not to approve this resolution. Thank you. CHAIRMAN CARTER: Thank you. Any questions, comments by members of the board? COMMISSIONER FIALA: Yes. I was going to ask how he would reword it? How would you reword it, Brad? You said that there were just a couple words that should be changed, or at least that's what I derived -- MR. CORNELL: No, no. I -- I didn't say that. I -- I -- I said this -- the entire resolution is off the mark. Your professed in -- concern is with public input. The intentions of the resolution are to reconsider the -- the status of the species as an endangered species. I don't quite understand why this resolution accomplishes what your intention is. That is better public input. COMMISSIONER MAC'KIE: I would support a resolution that Page 88 May 22, 2001 encouraged more public participation in these issues, as I think, based on what Mr. Stallings read, the Florida Wildlife Commission or whatever it's called this week, has also done. If what we want is public participation, then that would be a very positive, good message to send. But if what we want to say is we're not worried about the manatees, then we need to send this resolution. COMMISSIONER FIALA: I didn't take that at all. I thought that what we wanted was public participation in reevaluating. You know, I feel that maybe -- maybe there's a little play on words here, but that's what they -- what's -- that's what the Marco Islanders want to do. They -- they don't in any way want to tell you how to count the manatees. What they want is participation in this evaluation. MR. CORNELL: I don't think the entire lawsuit had to do with the status of the manatee. I think it had to do with protect the manatee given its status. This reevaluation push is, I think, part of the hysteria that has been whipped up in response to the settlement of the lawsuit of which we were not a part but we do support protection of and recovery of all endangered species. COMMISSIONER FIALA: Hysteria always starts with lack of communication, doesn't it? And this would probably be the way to address that. COMMISSIONER MAC'KIE: And here's an opportunity for us to be leaders because we have a message to send. It's just not this one. Listen to what it says in the, "Now, therefore, be it resolved," the Board of County Commissioners fully supports urging the Florida Fish and Wildlife Conservation Commission to reevaluate the endangerment of the manatee. Is that what we want to say, or do we want to say, "We urge the commission to work closely with the public to balance the rights of private property owners and the boating public with the needs for Page 89 May 22, 2001 manatee protection as science supports them"? That -- I'd be all over supporting that but not reevaluating the endangerment of the manatee. COMMISSIONER HENNING.' Well, I might -- must say the evidence that -- that was submitted clearly states that the manatee population is growing. And being on the water for the last almost 30 years, I can attest to that; it has been growing. COMMISSIONER MAC'KIE: And that's why we don't need to worry about the evaluation of our manatee protection plan. COMMISSIONER HENNING.' We need to worry about access to public lands, the enjoyment of all people in Collier County to enjoy the water. COMMISSIONER MAC'KIE: Absolutely. And I'll support a proclamation that says we want to do that. I won't support a proclamation that urges reconsideration of whether or not the manatee is endangered. I would support a resolution that said we urge the appropriate agencies to -- to get all the science that's available and to do all the research possible to determine if in Collier County, for example, our plan is so good that the manatee is thriving in Collier County and that we don't need to do more by way of protection in Collier County. Science may show that. I'd be willing to support that but not the anti-manatee resolution. COMMISSIONER HENNING.' It's not anti-manatee. CHAIRMAN CARTER: Wait a minute. Hold it. Hold it. Let's not put the kitties in the sack here. COMMISSIONER COLETTA: You know, I've been listening very carefully. And this last statement, anti-manatee, I don't think anyone on this particular dais is anti-manatee. We're asking for reconsideration. If it has to do with mass hysteria, mass hysteria comes from certain elements that are out there. These people have seen rights taken away time after time. We Page 90 May 22, 2001 represent the public, and that's what we're doing here today. CHAIRMAN CARTER: Thank you, Commissioner Coletta. The last speaker, please. MR. OLLIFF: Bob Krasowski. MR. KRASOWSKI: Good afternoon, Commissioners. Once again, I -- I come up here at this time to agree with Mr. Cornell and the other environmentalists. Of course, many of these boaters are environmentalists as well. But -- and also with Commissioner Mac'Kie, I'm looking at the -- this resolution that you're considering -- and it starts off, the first paragraph, it says: Whereas, the Save the Manatee Club, et al., filed a suit against the U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers for allegedly failing to protect the manatee." the suit was settled in negotiation January 4th, 2001, by adopting agreements that ignore the rights of waterfront property owners, the boating public, and the economic impact on the State of Florida. I think the previous speakers addressed those issues, and that's not just the way it was. I agree, of course -- as you can well understand, I'm very much in support of public participation and input on every aspect of community government. What my -- my sole comment in regard to this, as -- beyond supporting the previous speakers, is something I saw on the TV the other day. And it says we, which means you and me, everyone, but in particular it applies to you right now -- you have not inherited the earth from your parents. You are the stewards of the earth for your -- for our children -- for your children. And I think it's time that we start buying into that concept and behaving as if we understand it and agree to it. And it's real important that you, our county represented government officials, think along those lines. Page 91 May 22, 2001 CHAIRMAN CARTER: Thank you, Bob. MR. OLLIFF: That's all your speakers. CHAIRMAN CARTER: That concludes our public speakers. Comments from the board? Questions from the board? COMMISSIONER HENNING.' I'll go ahead and make a motion, Mr. Chairman, that we go -- move this resolution. CHAIRMAN CARTER: Okay. I have a motion to move the resolution. COMMISSIONER FIALA: I'll second that. CHAIRMAN CARTER: And I have a second by Commissioner Fiala. Any discussion? Commissioner Coletta? COMMISSIONER COLETTA: Just one thing. Commissioner Mac'Kie, if I overreacted, I apologize. COMMISSIONER MAC'KIE: Oh, no. And, actually, I was going to use the opportunity at the end of the vote to say I didn't mean anti-manatee. That was wrong because I know none of you are that. I don't even think anybody in the room or the county is anti-manatee. I meant anti-isting as an endangered species, and that -- that -- CHAIRMAN CARTER: That's good. I'm glad you're all making nice up here. COMMISSIONER FIALA: Especially after our proclamation this morning. CHAIRMAN CARTER: Right. COMMISSIONER MAC'KIE: Civility. CHAIRMAN CARTER: Okay. All in favor of the motion, signify by saying aye. (Those in favor responded.) CHAIRMAN CARTER: Opposed by the same sign ? COMMISSIONER MAC'KIE: Aye. CHAIRMAN CARTER: Motion carries 4-1. Page 92 May 22, 2001 Item #8A3 2001 TOURISM AGREEMENT BETWEEN COLLIER COUNTY AND THE MARCO ISLAND FILM FESTIVAL REGARDING THE OCTOBER, 2001 EVENT - APPROVED IN THE AMOUNT OF $50,000 That moves us to the next item. For all of those that are wondering where we are going, we will be breaking at 12:30 approximately for lunch. So this takes us to Marco Island Film Festival, which is 8(A)3 which was priorly-- prior 16(A)14, tourism agreement between Collier County and the Marco Island Film Festival. Whoever pulled it may want to take the opening -- make the opening comments. MR. MIHALIC: Good morning, Commissioner. For the record I'm Greg Mihalic from the housing and urban improvement department and -- COMMISSIONER MAC'KIE: May I just ask, Greg, who pulled this ? MR. MIHALIC: I think the staff -- the staff pulled it off because there was some public comment that wanted to be made on this item. COMMISSIONER MAC'KIE: Is that the normal process? MR. OLLIFF: The petit -- on a consent agenda item if we are aware that there is going to be a public comment or a request from a member of the public to speak on an item, we'll usually put it on the regular agenda. In this particular case, petitioner has requested to be able to present to the board. So I think we could probably just cut to the chase -- COMMISSIONER MAC'KIE: Yeah. MR. OLLIFF: -- and -- and have the petitioner come forward and make his presentation to the board. Page 93 May 22, 2001 COMMISSIONER MAC'KIE: Great. MR. MIHALIC: Makes it easy for me. COMMISSIONER MAC'KIE: We read your side of the story in the staff report. MR. DAILEY: Yes. I'll be doing that from this side. CHAIRMAN CARTER: Please get on the microphone and identify yourself. MR. DAILEY: Yes. I'm Maury Dailey for the record from Marco Island and involved with the film festival as an officer. There was some confusion about how this process would work this morning, so -- but we do have an abbreviated presentation to make and to answer any questions that you might have about the film festival, if that's appropriate, Mr. Chairman? CHAIRMAN CARTER: MR. DAILEY: Okay. CHAIRMAN CARTER: Go right ahead. Five minutes. No, go ahead. MR. DAILEY.' Thank you. First of all, we'd like to thank -- thank the county commissioners and the county staff for the support over the years. The festival itself is built on hundreds of volunteers, as I know that you-all are aware of, and has grown now into becoming -- this year would be the fourth annual film festival, a signature event for Collier County. The festival, as you know, starts with the beach opening night, then follows with movies for the five-day event. The total budget for the year 2001 is $600,000 or approaching that. Last year's event we brought in the following celebrities, some of the celebrities you saw there, which is Celeste Holme, Sean Young, Ben Gazzara, Mario Lopez, and Jason Priestly. We also have a student filmmaker program that's very popular. It gets international visibility for Collier County and the festival. The finalists are represented on that -- on the screen included some from Fort Myers, from a school in Brussels, Boston Page 94 May 22, 2001 University, Brigham Young, so a wide variety of -- of schools represented. In addition to that is -- and within the student film program is Kid Fest Film Essay Contest which serves to be allowing the opportunity for 33,000 county students to participate in the film festival. We expanded beyond Marco with a relationship with Regal Theaters up into Naples, also activities at Waterside Shop, Fiddler's Creek, Eagle Creek. And we're looking forward to this year and the possibility of expanding some activity into Immokalee, so we're looking forward to that opportunity. As we've said before, from the day -- from the first time we did this event we used a little ballot or mini survey. People that go in to watch the movie, they fill out a little survey. That's how we rate how good a film is, and our whole awards program is based on these little ballots. On the reverse side is a survey, and based on the information we get from that, we come up with certain conclusions, not the least of which is that we had about 8500 in attendance last year. Thirty-seven percent of those attendees were from outside of Collier County. And based on those little surveys, we found that 14 percent of the people from out of county commuted to the county. Forty-seven percent stayed in private condo or home rentals, eleven percent from the hotels, and then the -- six percent stayed with friends. And, again, based on these little ballots or surveys, 22 percent came from unknown sources. Based on that, we've extrapolated numbers, as we've done before, returning something over a million dollars in between room nights, ancillary spending. We then had national exposure, which is something -- some of it we paid for, which is called ad placement, but a lot of this is something that people do voluntarily in press coverage. State exposure is the same. Local Page 95 May 22, 2001 exposure, likewise, bringing us quite a bit of -- of spin-off from the event, $2 1/2 million worth of media impact. We take that and add the lodging and ancillary extrapolated figures, we're coming up somewhere in the 3.6 million in the return from last year's event of eighty-seven five. This year we're looking at it for the future. We showed this to the TDC that the beach and cultural events or festivals tie for popularity in visitors to vacation areas. We also -- since the TDC went and talked to Palm Beach, Delray Beach Arts Council and Broward County regarding their events, Palm Beach said they like the idea of reinforcing the national image, attracting visitors to business. Delray Beach liked the idea of -- of backing proven events. They're less chancier for the good of the community. And Broward County said that the Lauderdale film festival knows and makes a visitor's vacation more fulfilling and that they stay longer. The budget shown before you is for the total budget we originally applied for for $150,000. I also would like to mention, which I'm going real fast here just to make certain we get out for lunch, but we just had an event not too long ago as a fund raiser, and this event was a big success for the film festival. This is an advanced copy of what's called Soap Opera Weekly. There are three other of this type of item that's going to be out that hits the newsstand today. On the back page of this is all about the golf tournament that we had with the celebrities and starts out by just saying, very quickly, "Guiding Liglht stars turned out in full force to support the Marco Island Film Festival student program in Naples, Florida, April 28th to 29th." we couldn't afford to pay for that kind of advertisement. We have three other items coming out today that will be showing the same thing. So these are some of the spin-offs that we see by your investments of the past years are finally beginning to take hold Page 96 May 22, 2001 and benefit the county overall. And we're thankful for your previous and past support and look forward to any questions and the future support you can give us. CHAIRMAN CARTER: Questions by the board? Commissioner Coletta. COMMISSIONER COLETTA: Not a question but a comment. I want to thank you and Pat Barry for coming forward with the idea of taking this thing on the road to Immokalee. If there is ever a place that will appreciate it -- and what we were talking about was films would have -- either be Spanish films with English subtitles or English films with Spanish subtitles. We were talking about it, the possibility of premiering some of the major releases that will take place for the actual film festival in Immokalee. I'm sure they'll appreciate this very much when the time comes. MR. DAILEY: Thank you. CHAIRMAN CARTER: Any comments, questions on behalf of the board? MR. OLLIFF: Mr. Chairman, you do have one registered speaker. CHAIRMAN CARTER: All right. MR. OLLIFF: Pamela -- I believe it's Nesheim. MS. NESHEIM: Good -- good afternoon, actually, now. My name is Pamela Nesheim, and I am the executive director of Naples Winter Wine Festival. I appreciate the opportunity to address the commissioners and for their time. Just to explain a little bit why I'm here to support the festival, let me introduce exactly who we are. Fifteen months ago 18 families in Naples came together with $170,000 of their own seed money to form the Naples Children and Education Foundation. This foundation was based on a vision that an annual event provides over 80 percent of that money to charity. This event is called the Naples Winter Wine Festival. This three- Page 97 May 22, 2001 day annual event benefits charity but specifically local charities. The Boys and Girls Club of Collier County and Youth Haven received a $1.1 million check each on April 24th. COMMISSIONER MAC'KIE: Who was the second one? Boys and Girls -- oh, Youth Haven. MS. NESHEIM.' We have now set our sights for the 2002 event. In order to meet or exceed the money raised for 2001, the Naples Winter Wine Festival, once again, needs the community's support. The tourism alliance has proposed another similar event. This event mimics many aspects of the Naples Winter Wine Festival. This -- over the next decade we anticipate to raise close to $15 million. We ask the officials governments -- excuse me, government organizations of Collier County to please not take that chance with the children's money. The founders of the Naples Children and Education Foundation have offered their assistance and support to an event that happens weeks from this one proposed. This is the Marco Island Film Festival. We asked the government officials to please support this festival. It is a very worthy event, and we feel that the founders and the community should really make their efforts towards marketing this. Thank you for your time. COMMISSIONER MAC'KIE: Can I ask you a question? CHAIRMAN CARTER: Commissioner Mac'Kie. COMMISSIONER MAC'KIE: There are -- I've heard this rumor. I've gotten a lot of calls about there being some potential competing wine festival. And I checked with staff, and as of last week late there was no such application filed. And I -- I'll go on record as saying I'm not going to do anything that would compete with this very successful event. That's the last thing that the government needs to be doing is getting in the way of something that you've already done that is so wonderful and providing so many benefits for the county citizens for our children. But I -- Page 98 May 22, 2001 unless there's something new, there's not an application on file that my staff could find. COMMISSIONER COLETTA: Commissioner Mac'Kie, put me right below your name for being on record too. COMMISSIONER FIALA: That saves the taxpayers a lot of money. CHAIRMAN CARTER: Commissioner Henning. COMMISSIONER HENNING: Yeah. We're getting off track here. Could we stay on the subject, please? CHAIRMAN CARTER: Well, I'd like to stay on the subject. What was the purpose for pulling this to -- MS. NESHEIM: I -- I'm sorry? CHAIRMAN CARTER: What was the purpose for pulling this item? MR. MIHALIC: Because the applicants wanted to talk to you about asking for additional money above the $50,000 recommended by the tourists council. CHAIRMAN CARTER: Well, I will share with you the feeling of-- the Tourist Development Council of which I have the privilege of chairing has felt that this project has been funded by public dollars. It is always seed monies to start projects. They are doing very well. As a mart -- part of public record, they said that if they didn't have any money from this, they would be able to go forward and do it on their own. The Tourist Development Council recommended $50,000 for this year as the final year because it felt that this project and what it's doing could stand on its own two legs. And it's my recollection that the TDC money is set aside for in these areas. I supported that motion on the part of the council. I will continue to support it. I think $50,000 was a reasonable amount of money to devote to this particular project. COMMISSIONER HENNING: And I agree. Page 99 May 22, 2001 COMMISSIONER MAC'KIE: I -- I have questions about that. I mean, I think we need to won -- and I wonder whether or not the concept of seed money is the right way to go for these events or if we want to fund successful events to allow them to grow to develop a real market for off-season tourism or shoulder season, whatever we call it now. So I wondered now -- I would be willing to support something more than $50,000 because as I read it, it looked like, Commissioner Carter, that the TDC was only interested in supporting the advertising and promotion budget associated with this event, and that's not a limitation that I think exists anymore that's particularly important to me. But I'm one vote. I would -- I -- I would like -- before I would support a specific dollar amount, I would like to see what it does to the budget overall, how much money there is, those kinds of questions. CHAIRMAN CARTER: Well, there's limited amount of dollars, I will tell you right now, to support any of and all of these efforts. And if we've taken your time, I apologize. Okay. If you can just hold the microphone. There's a limited amount of monies thoroughly discussed. It's a question of how you're going to help a number of groups that come. And the purpose, again, was to get them started and up and rolling. This organization -- there's a question in terms of measuring, if you're trying to say does it stimulate people to come here for rooms and beds -- for rooms and eats, that's a whole gray area in terms of how you measure that. No one could come up with a definition and defined way of doing this. It does not detract from the fact that it's an important event in the community. But I think we could find a lot of events in this community that are important, they accomplish a lot of goals. And I am going to stay with my position that I think we've got them off the ground. Page 100 May 22, 2001 They're running well. They're well organized. Godspeed. Let them go do it, but I think it's time to pull the dollar plug. COMMISSIONER FIALA: I -- I'd like to comment also. First of all, I'm very impressed with how many magazines and news articles are distributed throughout the United States. That's -- that's, of course, the prime motivation behind this, is giving us exposure here. Second of all, I've been there. What an -- what an outstanding experience. I hope everybody in the audience gets to sit on the beach on a lawn chair as the sun sets and watch a movie with the waves crashing in. It -- there's nothing like it in the whole world. But, thirdly, I have to say that I think it's important that we finance this because it takes at least three years for any good project to get off the ground and continue to grow and have a positive footing so... CHAIRMAN CARTER: That's why the council continued to support for this year, figured that we're going to accomplish that goal. COMMISSIONER FIALA: I was wondering if Jeff -- I'm sorry -- Greg had any particular dollar in mind. MR. MIHALIC: Well, I was just going to talk to Commissioner Mac'Kie about the dollars she mentioned they were all recommended for advertising. In your package you do have the amended Exhibit A. $20,000 of TDC money went to public relations; 7500 will go to paid advertising; 20,000 will go to film industry special guests; 1500 for office equipment; and 15 -- a thousand for film equipment rentals. That's where the 50,000 is projected to go. COMMISSIONER FIALA: And do you have a suggestion as to what you need -- I saw the 150,000 budget and the 50,000 budget. Where do you think you're lacking to a point where it Page 101 May 22, 2001 would be a detractor in making this an outstanding benefit or an outstanding event? MR. MIHALIC: I think I would really like to take the opportunity here to say that we're not -- we brought this forward to the TDC and we bring it forward to you not in the sense of taking away anything of what you've done but bringing forward an opportunity for the county to consider the possibility that they could use the film festival differently than how and roll-wise that we've been used to get it going. Now we're up and we're going. Can the county capitalize on the film festival for its benefit? And that's partly why we brought this up to the TDC meeting and again today. We certainly don't want to go against any recommendations from the TDC, and certainly Mr. Carter was there. We're fully in agreement with the TDC, and we appreciate the support. We bring it up only as something for you-all to consider that this is an event you've invested in. You've brought it along to this point. It's your opportunity now. If you want to fund more money, to get more exposure for Collier County, we certainly are a vehicle ready for that opportunity. CHAIRMAN CARTER: Thank you. Commissioner Henning. COMMISSIONER HENNING.' And I appreciate you saying that you support the first development council in their decision. And, therefore, I make a motion that we support the decision of the TDC to fund this for $50,000. CHAIRMAN CARTER: Discussion? (No response.) CHAIRMAN CARTER: (Those in favor responded.) Opposed by the same sign? COMMISSIONER FIALA: Aye. COMMISSIONER MAC'KIE: Aye. I'll second that motion. All in favor signify by saying aye. Page 102 May 22, 2001 CHAIRMAN CARTER: Motion carries 3-2. Thank you. MR. DAILEY: Thank you very much. Item #8E1 AUTHORIZATION FOR STAFF TO PROCEED WITH NEGOTIATIONS TO PURCHASE IMPROVED PROPERTY AT 2373 HORSESHOE DRIVE (LOTS 14 AND 15, EAST NAPLES INDUSTRIAL PARK) - STAFF RECOMMENDATION APPROVED CHAIRMAN CARTER: That takes us to the next item. If we can do this before lunch, Commissioners, that would take us to E-I, authorize staff to proceed with negotiations to purchase improved property on Horseshoe Drive. COMMISSIONER HENNING: Oh, I'll make a motion to approve that. COMMISSIONER FIALA: Oh, that's easy. COMMISSIONER MAC'KIE: Second. CHAIRMAN CARTER: I have a motion and a second. All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Opposed by the same sign? (No response.} CHAIRMAN CARTER: Motion carries 5-0 and -- MR. OLLIFF: I'll take -- I'll take the opportunity just at least to introduce Chuck Carrington. He's your new real properties director. And he's the person that you heard good things about from Lee County counterpart when we were at our joint meeting. Chuck, great presentation. I'll get you to do the next one that we have. CHAIRMAN CARTER: Thanks for the presentation. Page 103 May 22, 2001 Item #8G1 CONSIDERATION OF THE CREATION OF A SERIES OF "HORIZON COMMITTEES" AND APPOINTMENTS OF COMMISSIONERS TO EXISTING COMMITTEES TO DEVELOP COUNTY POLICY RECOMMENDATIONS FOR A NUMBER OF COMMUNITY ISSUES - STAFF TO BRING BACK FINAL RESOLUTIONS What about G-l, Commissioners? Is there any need for a big discussion on this? COMMISSIONER MAC'KIE: I'd make a motion to approve that item. CHAIRMAN CARTER: I have a motion by Commissioner Mac'Kie -- COMMISSIONER FIALA: Yes. I'll second that. CHAIRMAN CARTER: Commissioner--second by Commissioner Fiala. All in favor? Questions? Discussion? County manager. MR. OLLIFF: I got to jump in quick. The only -- the only comment that I would make is we did find that there is an affordable housing commission that already exists that very much reflects the -- the resolution that was created for this work- force housing commission, and it has four appointees from the City of Naples, five from Collier County. Frankly, it is -- it is a committee that I was not familiar with, but it represents both development, affordable housing developers, banking and finance, the City of Naples, and Collier County representation. And so there is also another opportunity perhaps simply to assign a liaison to an existing committee as opposed to creating something new again. And I will tell you, David Ellis, for example, is one of the members. And most of the people that you would look for to -- to Page 104 May 22, 2001 serve on a new committee are already serving on this one. Greg tells me from the affordable housing perspective you would probably be hard pressed to get ten additional people other than the ones that are already serving on this committee. My suggestion would be that you -- we look at that. The other thing that I wanted to point out is that I'm not looking for final approval today because I need to bring these back under an umbrella ordinance, and I was just looking conceptually, is this something you-all are comfortable with, this direction. And if so, I would bring back something that mimics this, a final-approval item. COMMISSIONER MAC'KIE: I'm going to amend my motion to -- to change the direction on the affordable housing to -- to utilize the existing committee much in the same way that we offer green space, and -- and I'll tell you that one of the things that I'm going to be doing as soon as I start with this green space committee is asking them if it might need to be broadened, if the membership of it might not be completely -- might not be thorough, because I think there are -- there are interests in the community like, for -- for example, the ag industry that's not, I don't think, adequately represented on the green space committee. I'm going to ask the existing committee if they would be willing to consider expanding that membership. But I don't want to lose the work that's already been done, and I don't want to duplicate it. And so I think that same theory could work on affordable housing. COMMISSIONER FIALA: May I discuss that for just a moment and say that I agree that I would never to want duplicate the others' efforts, and I do want to gain by the experience that they have. I was hoping to think out of the box and -- and get some fresh ideas. Sometimes after a while a team that's working together becomes stale, and they need some new thinking. And I Page 105 May 22, 2001 -- I would like to add some components that aren't there right now, and yet I would like to be a part of the other one. We can work that out. MR. OLLIFF.' So perhaps I could just give direction to bring back a final resolution for all of the existing committees as recommended but then work with Commissioner Fiala and see about an expanded role, perhaps, on the existing affordable housing commission, and we'll bring that back as a final item if that's okay. COMMISSIONER HENNING: And I'll make that a form of a motion. COMMISSIONER MAC'KIE: You can second mine. CHAIRMAN CARTER: Okay. And I'm--we're staying, I'm sure, within your framework that we have discussed this, as the EDC has, that we are ready to recommend that the economic development be a part of our growth management plan. So I'd like to see that incorporated in the final presentation back to us. Just a comment, that that be a part of the motion. All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Opposed by the same sign? (No response.) Motion carries 5-0. I assume we had no public speakers. MR. OLLIFF: No, sir. CHAIRMAN CARTER: All right. We stand adjourned until 1:30. (A. (A lunch break was held from 12:30 p.m. To 1:36 p.m.) (The proceedings recommenced with Commissioner Mac'Kie not present.) CHAIRMAN CARTER: Board of County Commissioners is now in session again, and it is about 1:35. Item #9A Page 106 May 22, 2001 SETTLEMENT OFFER OF $9,800 IN THE CASE OF KIMBERLY D. DALTON V. ISLES OF CAPRI FIRE AND RESCUE DISTRICT, A DIVISION OF COLLIER COUNTY, A LOCAL GOVERNMENT, CASE NO. 99-534-CIV-FTM-29DNF, PENDING IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA - OFFER ACCEPTED IN THE AMOUNT OF $9,800 We're now moving on the agenda to Item H-9, county attorney's report, A. MR. PETTIT: Good afternoon, Commissioners. Mike Pettit, assistant county attorney here on Item 9-A, which has been before you several times before as we've had ongoing settlement negotiations with plaintiff in the case of Dalton versus Collier County. At this time the plaintiff has agreed to settle this case for $9800. I recommend that settlement to you. Previously, as you'll recall, we had been at $7,801. COMMISSIONER HENNING: Mr. Chairman, I make a motion that we settle for $9800. COMMISSIONER FIALA: I'll second that. CHAIRMAN CARTER: I hear a second from Commissioner Fiala. Any discussion? All in favor signify by saying aye. (Unanimous response.} (Commissioner Mac'Kie entered the boardroom.) CHAIRMAN CARTER: Opposed same sign. (No response.) CHAIRMAN CARTER: Motion carries 4 -- COMMISSIONER MAC'KIE: Five. CHAIRMAN CARTER: 5-0. Thank you. Item #9B APPROVAL OF LEGAL COUNSEL IN THE CASE OF THOMAS Page 107 May 22, 2001 WAJERSKI V. COLLIER COUNTY, ET AL- DAVID E. BRYANT, ESQUIRE APPROVED That takes us to Item 9-B, approval of legal counsel in the case of Thomas Wajerski versus Collier County, et al. MR. PETTIT: This is a case that actually began in 1995, and it's undergone several transmutations, I guess, is the word. The case as originally filed was tried and the county won. And the lawyer that handled that was David Bryant. He took the case when he was here as an assistant county attorney, and he handled it for about a year. He left the county attorney's office. The county attorney's office and Mr. Walker in risk management felt he was best suited to continue on. COMMISSIONER MAC'KIE: Motion to approve. CHAIRMAN CARTER: Second. MR. PETTIT: Thank you. CHAIRMAN CARTER: Any discussion? All in favor signify by saying aye. (Unanimous response.} CHAIRMAN CARTER: Motion approved 5-0. MR. PETTIT: Thank you. COMMISSIONER COLETTA: Good work. Item #9C REPORT ON MEDIATION AND REQUEST FOR BOARD DIRECTION IN THE LAWSUIT ENTITLED BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY V. COASTAL ENGINEERING CONSULTANTS, INC., A FLORIDA CORPORATION, MICHAEL F. STEPHEN, PH.D., AN INDIVIDUAL, MICHAEL T. POFF, P.E., AN INDIVIDUAL, CONTINENTAL CASUALTY COMPANY, AN ILLINOIS CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, T.L. JAMES AND COMPANY, A LOUISIANA Page 108 May 22, 2001 CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, HIGHLANDS INSURANCE COMPANY, A TEXAS CORPORATION AUTHORIZED TO DO BUSINESS IN THE STATE OF FLORIDA, CASE NO. 00-1901-CA-TB, NOW PENDING IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL COURT IN AND FOR COLLIER COUNTY, FLORIDA - SETTLEMENT AGREEMENT APPROVED CHAIRMAN CARTER: That moves us to Item 9-C, report on the mediation and request for board direction in the lawsuit entitled Board of County Commissioners of Collier County -- COMMISSIONER MAC'KIE: I don't see our lawyer. CHAIRMAN CARTER: -- etc., etc. COMMISSIONER MAC'KIE: Is our lawyer here? MR. WEIGEL: Mr. Chairman, Commissioners, I think they're in the elevator en route. So I can start it, and they can come in; or you can go, perhaps, to 10-A or B if you wish to. COMMISSIONER MAC'KIE: Can I ask a process question? CHAIRMAN CARTER: Sure. COMMISSIONER MAC'KIE: I'm uncertain about -- this is the first time I've ever in my six years participated in a mediated settlement agreement at the county commission. And as I understand mediation, whatever we discuss today -- should we not settle the case, it would -- both it -- both our discussions and our attorney's opinion is written to us, and he's met with each of us individually. And that would be admissible, if I understand that correctly. MR. WEIGEL: Well, the communications you have from your client are privileged and confidential at this point in time. The statements that you may make on the record today are, of course, in the public context and may potentially be used in litigation should settlement not be achieved in the course of the Page 109 May 22, 2001 board's discussion and decision-making today. So Mr. Steve Siegfried will be speaking to you in a little more detail about that. But, yes, in fact, to some degree we're going to talk to you in a bit circumscribed fashion concerning the case. The mediation proceedings that were held just under two weeks ago that lasted for the better part of two very long days are privileged and confidential in the particular aspects, and discussions that were had therein are not going to be discussed with any specificity, I can assure you. I'd also like you to know that in the audience today is Michael Poff, one of the named defendants in the case. Also, seated a few rows back from us right here, is Mr. Ted Tripp, representing T. L. James, the contracting -- contractor dredging company. And with us today are Mr. Steve Siegfried, our outside counsel, whom you have met; and also Doug Mann from Coastal Planning Consultants, Inc., our engineering expert and consultant that we've used. As you know also, Bill Mountford has assisted us in this process. CHAIRMAN CARTER: Mr. Weigel, we do have a question from Commissioner Coletta. COMMISSIONER COLETTA: Are there any speakers today? MR. WEIGEL: There are no signed up speakers, the county manager tells us. CHAIRMAN CARTER: You have to stand and come to the microphone and identify yourself. MR. MOUNTFORD: I just got an e-mail -- CHAIRMAN CARTER: Identify yourself. MR. MOUNTFORD: My name is William Mountford, assistant county attorney, and Mr. Boggess advised me in his e-mail two minutes ago that he will be unable to attend today. So I just wanted to make -- COMMISSIONER COLETTA: I would like to make a motion Page110 May 22, 2001 that we approve the settlement agreement. COMMISSIONER HENNING: I'll second that. CHAIRMAN CARTER: Any discussion by members of the board? MR. WEIGEL.' I'll tell you what. I know you know, based on our individual discussions, a little bit about the settlement agreement. But I do think we need to create a little record here so we may go forward so that there's some specificity to your settlement. With that I'd like Mr. Steve Siegfried, our outside counsel, to provide some discussion. MR. SIEGFRIED: Good afternoon, Commissioners. My name is Steve Siegfried of Coral Gables, and I've been what's known as outside counsel in this matter. I've had meetings with each of you individually and discussed with you the outcome of the mediation. I provided you with a package of an offer or offers that were provided to the county to settle the matter of Board of County Commissioners of Collier County versus Coastal Engineering and T. L. James Company, what has been commonly known as the rock case or the rock problem case in Naples beach. For the record, David, do we submit the -- did you submit the proposals or the offers? Do we have to do that, or can I just tell them what the offers were? MR. WEIGEL: I think you can just tell them what the offers are, MR. SIEGFRIED: The offers came from Coastal Engineering. The offer from Coastal Engineering to settle in exchange for a complete release -- and I'll explain what they mean by that in a second -- a complete release of all responsibility. The offer from Coastal is $800,000. The offer from T. L. James Company, the contractor for the ]ob, was $500,000, for a collective offer of $1.3 million to settle the claim. Page 111 May 22, 200'1 In exchange for the money, if we decided to accept it, payment would be made within 30 days of acceptance. The commissioners would be asked to sign a complete release, a general release, which means that latent defects are waived. In -- let's say -- let's -- as an analogy, let's say that this was the construction of a building, this building, and you had a claim for all the defects in the buildings that you knew about, but you didn't know about a problem with the concrete, and you maybe didn't know about that for 12 years. That's known as a latent defect. And normally, as your counsel, I would advise you not to waive latent defects. This is a -- this was a beach nourishment project. And in speaking to our experts, we probably would have seen indications of additional rock problems in other parts of the beach. So the -- the issue of whether or not we should waive, quote, latent defects is not as important an issue as it would be in a building. However, you need to understand that if a year from now we find rock buried 6 feet below the sand at another location at the beach, we can't make a claim any longer against Coastal Engineering or T. L. James. Those claims would be waived. It's a complete release. COMMISSIONER MAC'KIE: May I ask a question on that point? To what extent -- to what extent have we done the research to determine whether or not we have discovered all of the rock on the beach? MR. SIEGFRIED: Well-- COMMISSIONER MAC'KIE: And, again, as I said before the meeting, if I ask a question that's inappropriate, please just tell me so I don't ask about -- MR. SIEGFRIED: Let me just show you something that -- Humiston & Moore was retained by the commissioners. I don't know if you can see this. It's called a post-rock removal volume Page 112 May 22, 2001 computation. And they did a study which I could provide you with, and this is one of the pages in the study. But they took samples of three sections of the beaches that were nourished: The Vanderbilt Beach, the area north of Third Avenue, and the area south of Third Avenue. The area south of Third Avenue was screened, thoroughly screened, and the major rock removal project occurred in that area. The area north of Third Avenue was not screened, and that was primarily because there was not an indication -- FDEP did not indicate that they thought that they had a ma]or rock problem there. The -- the samples taken from that portion indicated that there is a greater percentage of rock than you would see in a native beach or -- and a greater percentage of rock than is in the nourished beach which was screened -- which, incidentally, is less than what you'd expect in a native beach. And Vanderbilt Beach is someplace in that -- in the range of a little bit in excess of native beaches from the Humiston Moore reports. So you paid somebody to do that. Now, in order to do an accurate study, you'd have to probably spend, I don't know, thousands and thousands of dollars to go and actually take a backhoe and tear up the beach to determine whether there's anything there. But your expert Doug Mann is here, and he could probably comment on that. He indicated to me before coming here today that because of the weather and a natural erosion of the beach, we probably would have seen signs that rock was buried below the sand in those locations if it, in fact, was. COMMISSIONER MAC'KIE: A related question is if, in fact, that sometime, ten years from now, we find out that there are flaws in the Humiston & Moore study, we're not waiving any cause of action that we might have against them? MR. SIEGFRIED: Yeah. But I don't think that you'd have a Page 113 May 22, 2001 claim against Humiston & Moore because it's like I explained to you, when the CEC did their testing, they test, you know, at a specific location. It's not a representation by Humiston & Moore that the entire beach didn't have rock. I don't think there's any real way to demonstrate that. However, from the records that we've seen -- and I think the expert could tell you better than I. From the records we've seen, we don't see an indication that there's a rock problem in those areas. But if you did find it later on, this is over. I mean, everybody wants an end to it, and the defendants want an end to it if we agree to settle. COMMISSIONER MAC'KIE: Does the DEP -- has -- their consent order, does it give us any indication as to whether or not they think we have discovered all of the rock? MR. SIEGFRIED: I -- maybe Bill could answer that better than I can. MR. MOUNTFORD: Bill Mountford again. And I've been dealing with DEP on an ongoing basis, and to answer your question, Commissioner, in their proposed consent order in paragraph 9(A)(3), they wanted to know about the sampling procedures. In the original corrective protocol, for lack of a better term, the sampling procedures were set up, and they've been used all along. And since those sampling procedures have been implemented, there's never been anything untoward or leading anybody to believe that there were any additional rocks or any other form of nonspecification material on any of our beaches. And that is not one of the issues that we have with the DEP at the present time, and that's as of last week when I spoke with the general counsel. COMMISSIONER MAC'KIE: And I know, as you do, I get a lot of e-mails from people who are -- well, Mr. Boggess and Mr. Page 114 May 22, 2001 Hermes and some of those people who -- frankly, they get so complicated and so vociferous that it's difficult to follow all of them. But I think that in some of those there are allegations that there is another layer of rock waterward of the beach. Is that something that has been investigated? MR. MOUNTFORD: To my knowledge, I am not aware of that. They may make those allegations, but it's nothing more than what came to the forefront all along in this litigation with regards to the issue of that one section of dual layering on the Naples beach. COMMISSIONER MAC'KIE: We probably should hear from our engineering expert on that. I hadn't -- I apologize for springing these questions on you. I hadn't thought about the waiver of latent -- I have another issue with regard to the width of the beach that I'll be wanting to hear questions (sic) on, but I hadn't thought about this waiver of latent defects until today. I apologize I didn't ask you these ahead of time. MR. MANN: Douglas Mann, Coastal Planning and Engineering, Boca Raton, Florida. There were allegations made that there were rocks further offshore in the surf zone. Some of those result from the findings that occurred during the mediation process within the area between 3rd Avenue South and 15th Avenue South. Those areas were investigated and were directed to be cleaned up in that particular area. COMMISSIONER MAC'KIE: Say that again. Those were investigated and were cleaned up? MR. MANN: Yes. Between 3rd Avenue and 15th Avenue South. COMMISSIONER MAC'KIE: I'm having trouble hearing you. My problem. So to your -- to the best of your knowledge, we've identified all of the rock? MR. MANN: I'm not sure you have identified all the rock. Page 115 May 22, 2001 COMMISSIONER MAC'KIE: Tell me what statement you can make. MR. MANN: There are -- Humiston & Moore made investigations into certain sites with specific locations outside the areas that had been remediated. They did find the presence of some rock, though it -- albeit at Iow levels. Whether that is continuous throughout the entire rest of the beach is unknown. COMMISSIONER MAC'KIE: And as to that waterward identified rock, state again what you said. I didn't understand that. You said there was some indication that there was rock in the surf. MR. MANN: Between 3rd Avenue South and 15th Avenue South. That's the area that has been cleaned up, and that rock was, according to records, cleaned up in that area. COMMISSIONER MAC'KIE: Okay. MR. WEIGEL: Commissioner, maybe I can help you a bit. What we want to do here is add together the statements that are being made in this subject matter. Bill Mountford has indicated to you the DEP has told us that they are not aware of rock or significant rock problems, significantly different than a native beach, in other areas of the county. Mr. Mann is telling you that the rock that was even in the surf area was extensively cleaned up by the Caddonhead operation between 3rd Avenue South and 15th Avenue South, that area of the city north of and just south of the pier. Part of our discussion today as a -- in talking about settlement of the case has to do with what we know and what we may have to expend to know more. COMMISSIONER MAC'KIE.' I understand. MR. WEIGEL.' And we look at risks and certainty. We have a -- a settlement amount before you which is a certain amount that would be paid in -- within approximately 30 days of an approval Page 116 May 22, 2001 by the board, money that gets back working for us as opposed to preparing for litigation. We know that both sides have spent significant amounts with the preparation to this amount -- to this extent, with probably an equal amount to be spent to go to and through trial. COMMISSIONER MAC'KIE: Again, David, if I ask questions I shouldn't ask, tell me. But how much money have we spent so far?. MR. WEIGEL: Well, as of April 30th, we had spent 181,000. COMMISSIONER MAC'KIE: And they had spent about that, each, probably. MR. WEIGEL: We have -- we have information from them in that regard. Unless Mr. Siegfried indicates, I won't comment. But I will say we know of significant expense on their part. I don't want to provide a laundry list of expenses, but we've been privy to and learned quite a bit. MR. SIEGFRIED: At least with respect to one of the defendants, Coastal Engineering, we know, because they have a policy that has a maximum amount to it, which is a million dollars. But that policy gets reduced by legal expenses or expert fees. Right now we have a representation -- and that's part of the -- the materials that I've given you. We have a representation from counsel for Coastal that they've already spent over $200,000 in the defense of the claim, thereby reducing the amount of available insurance proceeds should we go forward. And as we go forward, that amount gets reduced. COMMISSIONER COLETTA: And, of course, that includes your fee, too, sir. MR. SIEGFRIED: Well, no. My fee doesn't get reduced from their policy. COMMISSIONER COLETTA: No, no. But I mean, we have to - Page 117 May 22, 2001 MR. SIEGFRIED: Right. You have to still pay me. MR. WEIGEL-- What I wanted to mention, though, is the fact that as we go forward to either prepare for further prosecution of this case with a jury trial and some of the uncertainty that we know comes from that, also requires us to go forward and -- and check out the beach further to see -- and further try to verify the extent of damages that we've already claimed in the complaint. As you know, it requires not county staff. It requires experts like the Humiston Moores or others to come and do that, and the costs are significant as we go forward, and we don't know if we'll get money back. We may not increase the claim -- or I should say the settlement amount that we have right now. So we have looked at the idea of assurance and certainty as opposed to the risks of litigation, and we know the significant costs we have to go forward. And it's not that we don't think we have good-faith claims, good-faith case, but there is certainly in litigation one thing we are certain, that there is uncertainty in the result when we're talking about sophisticated comprehensive litigation well prepared by counsel on both sides. CHAIRMAN CARTER: Let's go to Commissioner Mac'Kie's other question if we might. COMMISSIONER MAC'KIE: The width issue. May I just say just to sort of frame the question, as I looked at -- and please stop me -- because, again, I haven't done this before with a mediated settlement, so stop if me if I start saying something I shouldn't say. As we -- as I evaluated this case, I saw that our damages are somewhere in the amount of -- is it okay to say that? MR. SIEGFRIED: Sure. COMMISSIONER MAC'KIE: A million five. It looks to me like we've spent about a million five to solve the problems of the rocks on the beach. And so if we get a million three and don't go Page 118 May 22, 2001 to trial, that seems to be a pretty good result. The other question, though, for me becomes the value of what we contracted for by -- in the area of hurricane protection by the width of the beach. And we got about 20 percent, if my recollection is right, less beach than we contracted for in Naples. In some places we got more, but we got about 20 percent less sand than we expected to get. Now, I understand the following: I understand that we paid by the yard. I don't think for a moment, Commissioner Carter, that we paid for a grain of sand that we did not get. You know, we paid for the sand that we got; we didn't pay for sand that we didn't get. CHAIRMAN CARTER: Right. COMMISSIONER MAC'KIE: But there is something in the diminution of the value of the asset we purchased with regard to the width of the beach. Part of the asset that we purchased was shore protection, storm surge protection. And my question on the width of the beach is, should we have gotten more sand if they had worked harder or faster or more efficiently, or what testimony do we have to that question? MR. SIEGFRIED: Well, I'll tell you what the testimony would be from the defendants, whether I agree with it or not. COMMISSIONER MAC'KIE: Okay. MR. SIEGFRIED: The defendants will demonstrate -- and I showed you all photographs -- except for Commissioner Henning which I spoke to on the phone; I wasn't able to show you the photographs -- of the beach before and the beach now. And you could see there's a considerable difference. COMMISSIONER MAC'KIE: Sure. MR. SIEGFRIED: The beach that we had before really, in some locations, was nonexistent in certain areas, especially around the Naples Beach Club. The beach that we have now is a much larger and better beach. What the defendants will say is Page 119 May 22, 2001 that they made best efforts. They worked 24 hours a day every day from the start date, the date they could start, to the date that they were prohibited from proceeding further by the permit, and that was turtle nesting season. In fact, your department -- one of the departments, I guess the department of public works, got an extension to work beyond the 1st of May to the 15th of May. And they will tell you -- the defendants will tell you that they were out there every day. They had crews being paid every day, and we didn't pay for downtime. And they probably could have -- they may have made a claim for downtime that I don't know whether we acknowledged or not, but we didn't pay them. But there was 30 days, they will tell you, that they couldn't work because of the weather. COMMISSIONER MAC'KIE: And 30 days is what percentage of the total amount of time? MR. SIEGFRIED: Twenty percent. COMMISSIONER MAC'KIE: The total amount of time that was available to them to work, the amount of time that they could not work due to weather was 20 percent? MR. SIEGFRIED: Thirty days was approximately -- 150 days - - did I get it right -- from November, I think -- I gave you the chronology. From about November 17th or so to May 15th was 150 days. COMMISSIONER COLETTA'- Would you put those pictures on the visualizer for the television audience out there? MR. SIEGFRIED: This picture? COMMISSIONER COLETTA: beach pictures. COMMISSIONER MAC'KIE: somebody else maybe -- I'm sorry. again? MR. MANN: Douglas Mann. No. The one there -- the actual And while he's doing that, could Would you tell me your name Page 120 May 22, 2001 COMMISSIONER MAC'KIE: May I call you Doug? MR. MANN: Yeah. COMMISSIONER MAC'KIE.' If they lost 20 percent of time available due to weather, how much less sand did we get than what we had hoped to get, that we expected to get? MR. MANN: You lost -- you did not receive 20 percent of the volume you originally contracted for. COMMISSIONER MAC'KIE: So that matches up pretty darn well, the time lost for -- because the question that I have is, did we -- did we lose time, that could otherwise have been spent putting sand on the beach, fiddling around with rocks? MR. MANN: No, you did not. The contractor would most likely testify that his construction operation, that is the placement of sand onto the beach, was -- went on at a speed and a process that was independent of whether there was any rock on the beach, whether he was cleaning up any rock at the Ritz- Carlton, you know, the same process -- COMMISSIONER MAC'KIE.' So he sent extra people to do that work. MR. MANN: I don't -- I don't know that for a fact. COMMISSIONER MAC'KIE: Because otherwise the people who were working on the rocks could have been working on the sand. MR. MANN: You have to understand that the dredging industry is a very capital-intensive process. And in order for those types of companies to make money, they have to keep the capital equipment operating as efficiently as possible. And they can't -- if they have to pull someone off the beach to go do a separate job, that doesn't mean the dredge won't operate. They'll just make due without one guy on the beach. MR. SIEGFRIED: These photographs were provided to us by Coastal Engineering. During the mediation process, they were -- Page 121 May 22, 2001 you know, mediation is a time where everybody can say in a privileged environment what their case will be, and we get a chance to respond without a jury or a judge deciding the case. So Coastal Engineering provided us with this photograph taken -- there's no date on it, but it's prenourishment of Lowdermilk Park, Naples beach. COMMISSIONER MAC'KIE: You need to back it out. MR. SIEGFRIED: And this was the condition of the natural beach that we had, and you could see there's not -- not that attractive of a beach. But in any event, they gave us that photograph. This one was Second Avenue South prenourishment, and there's quite a bit of rocks there, as well. And then we had Second Avenue South again, a little -- I guess a close-up of the same photograph. This was -- this one was Park Shore taken on 12/29/96 before the nourishment. COMMISSIONER MAC'KIE: But -- MR. SIEGFRIED: This was all before. And then they've got some other photographs. And then the next one was also Second Avenue South taken before the nourishment. And on 12 -- let me go -- now they have another series of photographs, which is the same location before and after. This is the view from Casa Grande towards La Playa Hotel. The one above is before -- COMMISSIONER MAC'KIE: Can't see. MR. SIEGFRIED: That's the before, and then the one below is after. COMMISSIONER MAC'KIE: See, I don't have any question about whether or not we got a benefit. My question is, did we get the benefit for which we bargained? But please go ahead Page 122 May 22, 2001 with those pictures and then we'll -- MR. SIEGFRIED: I was just asked to -- COMMISSIONER COLETTA: I was doing this for the benefit of our viewers out there so they have a little better perspective of what we're working with. We had the advantage of a 2 1/2- hour session with these attorneys in private individually, so we're way ahead of the curve on that. So we need to share this with the rest of the public. MR. SIEGFRIED: This is the view north from Lowdermilk Park before and after. I've got only three more. And then this is north from the Beach Club before and after. And then Vanderbilt Beach Hotel, before and after. And then this was another photograph of south of the Beach Club, Naples beach, where you could see we had -- we really didn't have much of a beach at all. So those were the photographs that were given to us during the mediation process. I know that this was not in response to your -- COMMISSIONER MAC'KIE: I understand. MR. SIEGFRIED: -- your question. COMMISSIONER MAC'KIE: But on the issue of my question, do you have the diagram -- and is it possible to put it on the visualizer -- that shows what the profile of the beach would have been had we gotten what we expected to get versus what we ended up getting? MR. SIEGFRIED: I gave -- I gave everybody this document, and this document was generated purely as a guide. It's not entirely accurate. It's close to accurate, but it's not exactly to scale, and some of the -- some of the markings on here are off a little bit. But it was for iljustrative purposes only at the mediation. But what this -- what this shows is the Naples beach portion of the entire project. It doesn't show Vanderbilt Beach because Vanderbilt Beach, in fact, turned out to be as -- Page 123 May 22, 2001 basically, I think, as large as we had expected. Here we have in green -- the outermost perimeter, which is in green, is the -- is what is indicated on here as the beach that we could have gotten if all of the sand from the borrow areas was dredged. If we maximized the approximately 1.4 million cubic yards of rocks that were contemplated -- COMMISSIONER MAC'KIE: Sand. MR. SIEGFRIED: Of sand. I got rocks in my mind -- of sand, we could have had a beach this size. However, there's some indication in the records that we may not have had that same width of the beach because we could have deposited sand at greater depths and still not had a beach as wide; right, Doug? We could have had sand that's deeper in certain spots but not necessarily as wide, with the same amount of cubic yards of sand. MR. MANN: I'm not sure I'm following your comment. MR. SIEGFRIED: Well, if you put sand to a level of 7 feet, you make it higher, the piles higher, and you don't spread it out as wide, you'll have a narrower beach but a deeper beach. MR. MANN: Yes. You could do that. MR. SIEGFRIED: Right. And there was some indication in some locations on the beach that the sand was deeper, yet not as wide as it could have been. COMMISSIONER MAC'KIE: In the yellow area, there -- although I know that's not, as you say, exactly to scale, but that's generally the area where -- I think it was IIA, the troubling borrow pit? MR. SIEGFRIED: The yellow area was the area that really disturbed everybody. This was what caused us all the problems. There were rocks in that yellow area. COMMISSIONER MAC'KIE: And the sand in that yellow area came from which borrow pit? Page 124 May 22, 2001 MR. SIEGFRIED: IIA. There were four borrow pits that were being utilized. There was two, but one was broken down into three. There was 6, NBIIA, -B, and -C. And it appears from the records that the rocks, the majority of the rocks came from NBIIA. And we call that dual layering area because, as you well know, Commissioner Mac'Kie, you were on the commission at the time, when they came before the commission and talked about putting rocks as a bottom base layer and then putting sand on top of it, which was -- that approach was discarded about ten days later. COMMISSIONER MAC'KIE: And I'm not even going to get into that piece of it right this second. But just back to the numbers for analysis here, we have a out-of-pocket claim of about a million five that has some weaknesses in it that I'm certainly not going to state for the record, but it's not a hundred percent. And out of that, without going to court, we get a million three of that million five if we settle. And we also settle on the question of whether or not we got the benefit of our bargain and the width of the beach because we accept the argument that we only paid for sand that we got, and they could not reasonably have been expected to put more sand on the beach because of the weather. And that's what I would like to hear Doug say is true or not true. MR. MANN: That's correct. COMMISSIONER MAC'KIE: And then there's the latent defect question that we have to analyze. Are there other pieces of this puzzle? MR. SIEGFRIED: I think you've -- I think you've got it. COMMISSIONER MAC'KIE: On that -- the picture of the beach that you have there, where -- could someone just tell me where the samples were taken by Humiston & Moore? MR. SIEGFRIED: We have the Humiston 8, Moore report, but Page 125 May 22, 2001 we'd have to sit and read it, I think. COMMISSIONER MAC'KIE: Well, the question I have, you know, going back -- I'm pretty satisfied now on everything except for maybe the latent defects and just worried a little about that. But I remember what you were saying, Mr. Weigel, about, you know, cumulatively looking at all the information. So, okay, then my last question is, is there some element of a penalty here to someone, whether it be our consultant or our staff or whomever? And, you know, I'm sorry, but I'm the only one who was sitting here when people smiled and nodded as they looked at me with a straight face and told me dual layering of rocks under sand was an acceptable method for renourishing a beach. And, in fact, it's an absolute violation of the permit. Is there some -- I mean, I guess there's not punitive damages associated with this. MR. SIEGFRIED: Well, in fact, you know, as part of the DEP investigation, while we haven't seen final -- final reports, both the county and CEC are subject to fines. I don't believe that we've been fined yet, David. I think we're entering into a consent order, but there is some action being considered. COMMISSIONER MAC'KIE: Separate from this lawsuit? MR. SIEGFRIED: Separate from this. And the investigation commenced by some of the citizens is still ongoing. And whether or not the state will take action, that's going to be for the state to decide. This is -- what we're asking you to do is settle or consider settling the civil aspect of this. Whether there'll be other types of penalties resulting from this from any of the parties involved will be decided by FDEP or the Army Corps of Engineers. Those are the two governing bodies. MR. MUDD: Jim Mudd, public utilities, for the record. The draft consent order, right now the penalty there is about $5,000, and it's up for negotiation right now if that should be assessed Page 126 May 22, 2001 against Coastal Engineering or against the county in that process. I've looked through the draft consent order from FDEP. The vast majority of the things that are on there have already been done as far as remediation of the rocks on the beach from that incident. And the one perpetuating thing that we're going to have to do is to go out there and rake it with our three rakes and three folks that are out there and maintain it. And the county signed up to have a quality beach, so that was a no-brainer on our part. And whenever there is a rock that shows up, we get a call either from the City of Naples through -- from Jon Staiger to our folks, we have our folks dispatch out there, and pick them up whenever we see them. So as far as the latent defects are concerned, if something's showing up, may it be washed on shore from off shore or it just shows up on the beach, we get it, and we're able to pick it up. And I talked to Harry at great length as we were coming over. I said, "Okay, Harry, talk to me. There was one area that was permitted for dual layering, and then there was the area that wasn't permitted for dual layering. The area that wasn't permitted, has it been completely cleaned up?" COMMISSIONER MAC'KIE: But the dual layering that was permitted was up by the Ritz, and it was for shell, not for burying rock. Are we talking about the same thing? MR. MUDD: Yes, ma'am. MR. WEIGEL: Yes, you are. COMMISSIONER MAC'KIE: Okay. MR. MUDD: So the area that wasn't permitted has been cleaned up. COMMISSIONER MAC'KIE: And were you on our staff, Mr. Mudd, when we got our report from Humiston & Moore? Was it something that you saw? Page 127 May 22, 2001 MR. MUDD: No, ma'am. COMMISSIONER MAC'KIE: Just looking for more people to reassure me that we've adequately tested for latent defects. MR. WEIGEL: Well, Commissioner, I'll just restate. We had Humiston Moore do the independent review over the project as a whole. As Mr. Siegfried indicated, just like finding sand way out -- miles out, you make many representational test places and then do draw some assumptions based upon, you know, geology and a common knowledge standard in the industry, and I expect that's what Humiston & Moore did. At the same time we have -- DEP came along, particularly in 1998 and thereafter, and they themselves have not taken us to any further task than where we are right now with the consent order proposal that Mr. Mudd has indicated. And by the way, DEP, as you know, with not only the intercommunication from the county, from Coastal, from Mr. Boggess, and any other interested citizen or counsel, what have you, has had significant opportunity to review the procedures that Coastal Engineering implemented during the course of our project, which was an approximate six-month project, finished in May of 1996, five years ago. And so there's been, I think, at least three -- what I'm talking about, three reviews of -- of the -- of the problem areas or of our project as a whole that takes us to this point right now where, yes, we could hire another Humiston & Moore or someone else in their stead to do additional research, check different spots, apply different assumptions. Will that be diminishing returns? I can't tell you for sure. If they hit the jackpot and find some more rocks, they may say, "Yes, we found some more rocks." Will we win in court? I can't say for sure, but we've spent more money to get to that point. COMMISSIONER MAC'KIE: Other questions, board Page 128 May 22, 2001 members? COMMISSIONER FIALA.' Yeah. How can you tell if they're rocks from this project or if they're something that washed up naturally? COMMISSIONER MAC'KIE: That would be a big issue for litigation if we were to continue. CHAIRMAN CARTER: Any other questions? I have a motion. I have a second. I'm going to call the motion unless you have another comment. COMMISSIONER MAC'KIE'- I actually had one other question for our lawyer with regard to DEP. The consent order that's currently in draft form -- is that what it is, or maybe it's -- MR. WEIGEL.' It's under review. And, in fact, Mr. Mountford has provided a fairly comprehensive response in the last week, I'd say -- COMMISSIONER MAC'KIE: I've seen it. MR. WEIGEL: -- to them. And so even the $5,000 as a -- as a potential imposition on the county we question, I think, significantly and appropriately. We do -- we will be discussing a little further a potential mitigation project. COMMISSIONER MAC'KIE: But that's -- let me ask you my question, because it really -- it is, when DEP does consent orders, is it their practice to try to cover everything in one consent order related to this permit, or will they come back over time and continue to dog us? I mean, we don't get a general release from the DEP, but is it their practice to -- is it reasonable for me to assume from this consent order that they are satisfied that these are all of the issues, or does DEP only respond -- I'm thinking of the commission on ethics where you have to put it in front of them and do all the work and tell them what's gone wrong before they will investigate it. Is DEP like that, or does DEP get a red flag Page129 May 22, 2001 and follow it? MR. WEIGEL.' Well, as you know, they have been looking at us in regard to permit compliance. We have a permit, it has standards, and we must comply with that permit. So at this point in time with the post-project permit compliance review that they are doing, this is where they are. And the fact is that I can't say that this precludes them from finding more post-project noncompliance in the future. But I would state -- and it looks like Mr. Mudd's ready to say something, and I look forward to it -- is that -- is that I think we're doing the right thing on the beach right now. I think we're working in concert with DEP. Back to a remark you made earlier about being punitive, DEP knows all the parties here, and we -- we haven't seen extreme punitive motions from them on any party that was involved in the project. But they are looking for permit compliance and remediation. Jim. MR. MUDD: The consent order -- draft consent order has a maintenance clause in it that goes for the life -- from now till whenever. And so we're going to have to show them that we're doing that process and have to do a report, and I can't tell you if it's quarterly, semiannual, or annually because we haven't really agreed to that process. We're going to have to report to them about dollars that were spent, things that were done in order to do that. So that's going to be there for a while. I don't see that going away with this consent order. But I don't think FDEP will come back to you and cite you again for an incident in 1996. I think this consent order is basically to bring it to some kind of conclusion because it's been ongoing for a good five years. I think it's, "Okay, here's what was done. The county spent $1.5 million remediating the rocks on the beach. They've got a good maintenance program in that process. They've gone the extra mile and in good faith want to Page 130 May 22, 2001 have a quality beach." And I think that's what you have to show. And I think FDEP is just trying to bring some conclusion to it, some closure. COMMISSIONER MAC'KIE: That -- that's the issue you've answered for me, that it's not their practice to cite us in 2205 for something that happened in 1996 if they've already cited us for what happened in -- MR. MUDD: No, ma'am. Once this consent order is agreed to by both parties, it brings closure to the rocks on the beach incident that happened in the mid-'90s. COMMISSIONER MAC'KIE: That's all my questions. CHAIRMAN CARTER: Thank you, Commissioner Mac'Kie. Thank you, the Board of County Commissioners. I know you were brief. I think I spent about 30 hours in mediation on this. You wonder why I'm strangely silent. I took to heart very much what the mediator said. I would not want to be in court and work on the other side of him. He was excellent. He worked diligently. He took people -- everybody that comes to mediation has -- has expectations. And when you leave is everyone totally happy? No. But the fact that we worked for two days, we came back with a proposal of the Board of County Commissioner -- and it's before you now to see if it's acceptable -- I think speaks well of the legal teams, it speaks well of the mediator, and everyone that was involved. If there's no further comment by legal counsels, I will call the question. All in favor signify -- the motion, say aye. (Unanimous response.) CHAIRMAN CARTER: Opposed by the same sign. (No response.) CHAIRMAN CARTER: Motion carries 5-0. MR. WEIGEL: Thank you, very much. CHAIRMAN CARTER: Thank you. And I thank you again, Page 131 May 22, 2001 David. Your legal time -- or your team worked very hard on this, and no one will probably appreciate what went into this. I read thoroughly, Commissioner Mac'Kie, those documents in which Commissioner Mac'Kie asked the right questions. And I compliment you, Commissioner, in what you did and how you tried to get things resolved many years ago. Item #10A RESOLUTION 2001-195 APPOINTING ANTHONY P. PIRES, JR., DAVID ROELLIG, JOHN P. STRAPPONI, JAMES L. SNEDIKER, ASHLEY D. LUPO, ROBERT B. STAKICH, WILLIAM KROESCHELL, ROBERT GRAY AND COUNCILMAN GARY GALLENBERG TO THE COLLIER COUNTY COASTAL ADVISORY COMMITTEE - ADOPTED All right. Let us move forward, if we might, to the next item. I have about five or six minutes on the clock before our 2:30 time certain program, and I would like to deal with some of the Board of County Commissioner appointments. If we could go there and accomplish that in the time that we have, I would appreciate it, board. Let's go to 10-A, appointment of members to the Collier County Coastal Advisory Committee. COMMISSIONER MAC'KIE: Make a motion we approve Mr. Pires, Mr. Roellig, Mr. Strapponi, Mr. Snediker, Mr. Lupo, Stakich, Kroeschell, Gray, and Galleberg. COMMISSIONER COLETTA: Second. COMMISSIONER FIALA: I'll second that. CHAIRMAN CARTER: We have a pair of seconds. Motion by Commissioner Mac'Kie. Second, I think I heard first out by Commissioner Coletta. All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Motion carries 5-0. Page 132 May 22, 2001 COMMISSIONER MAC'KIE.' Can I make a comment quickly for Mr. Oliff? I don't think it's appropriate for a category to say "Does not possess qualifications." I just don't think that's appropriate. You know, there'd be other ways of giving us information than that. CHAIRMAN CARTER: Thank you, Commissioner. Item #1 OB RESOLUTION 2001-196, DECLARING A VACANCY ON THE HISPANIC AFFAIRS ADVISORY BOARD - ADOPTED Move to Item 10-B, recommendation to declare a vacancy on the Hispanic-- COMMISSIONER MAC'KIE: So moved. COMMISSIONER FIALA: Second. CHAIRMAN CARTER: Motion by Commissioner Mac'Kie; second by Commissioner Fiala. All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Motion carries 5-0. Item #10C RESOLUTION 2001-197, APPOINTING SUSAN CALKINS AND YOLANDA CISNEROS TO THE HISPANIC AFFAIRS ADVISORY BOARD - ADOPTED Takes us to the appointment of members to the Hispanic Affairs Advisory Board. COMMISSIONER COLETTA.' I make a motion that we appoint the two people that are so listed here. COMMISSIONER MAC'KIE: Second. CHAIRMAN CARTER: I have a motion by Commissioner Page 133 May 22, 2001 Coletta; a second by Commissioner Mac'Kie to appoint the members of the Hispanic Advisory Board as was recommended. All in favor signify by saying aye. (Unanimous response.) Item #10D RESOLUTION 2001-198, APPOINTING KATE GODFREY-LINT AS A REGULAR MEMBER AND KATHLEEN CURATOLO AS AN ALTERNATE MEMBER OF THE COLLIER COUNTY CODE ENFORCEMENT BOARD - ADOPTED CHAIRMAN CARTER: Item 10-E, appointment of a member to the Collier County Planning Commission. COMMISSIONER MAC'KIE: We skipped code enforcement. CHAIRMAN CARTER: Sorry about that. 10-D, appointment of a member to the Collier County Code Enforcement. COMMISSIONER HENNING: Motion to appoint Kate Godfrey- Lint. COMMISSIONER COLETTA: Second. CHAIRMAN CARTER: I have a motion to -- for Kate Godfrey- Lint. I have a second by -- a motion by Commissioner Henning; a second by Commissioner Coletta. Discussion? COMMISSIONER MAC'KIE: That means, then, that we should also make an appointment for the alternate seat that this person would be vacating. MS. FILSON: That's correct. COMMISSIONER MAC'KIE: Should we do that in one motion, or do you have a recommendation on that? COMMISSIONER HENNING: I don't have -- I'll amend it if you want to make a recommendation. CHAIRMAN CARTER: I would recommend Kathleen Curatolo. Page 134 May 22, 2001 COMMISSIONER HENNING: state that. COMMISSIONER COLETTA: COMMISSIONER MAC'KIE: Second. And I'll amend my motion to I'll amend my second. CHAIRMAN CARTER: All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Motion carries 5-0. Item #10E RESOLUTION 2001-199, APPOINTING DAVID WOLFLEY TO THE COLLIER COUNTY PLANNING COMMISSION - ADOPTED Now, appointment of members to the Collier County Planning Commission. COMMISSIONER HENNING: Motion to approve David Wolfley. CHAIRMAN CARTER: I'll second that. Hello, board. COMMISSIONER COLETTA: Sorry. A little slow there. I was just trying to get to the page. Good choice. CHAIRMAN CARTER: All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Motion carries 5-0. Item #1 OF RESOLUTION 2001-200, APPOINTING DEBORAH L. RUSSELL, ALICIA POOLE, SHARON D. KING, BILL L. NEAL, AND MIKE HOY TO THE BAYSHORE/GATEWAY TRIANGLE LOCAL REDEVELOPMENT ADVISORY BOARD - ADOPTED; APPOINTMENTS FOR TAMIAMI TRAIL AND DAVIS BOULEVARD BUSINESS OWNERS TO BE READVERTISED Page 135 May 22, 2001 That takes us to 10-F, appointment of members to the Bayshore/Gateway Triangle Local Redevelopment Advisory Board. COMMISSIONER MAC'KIE: I'd like to make a motion, and then I'd be open, you know, for filling this in. But we have seven members to appoint. There's six applicants who live in the district, in the Fourth District. I'd like to nominate all six of those. And my suggestion for the seventh would be Laura Holland, who lives in District No. 5, but does have a business and some rental property in the area. COMMISSIONER FIALA: Could we discuss that for just a minute? As I was looking -- boy, this took me hours to go through. COMMISSIONER MAC'KIE: Me too. COMMISSIONER FIALA: And I notice that no one actually fit into Category D and E, business owner in the Tamiami Trail (U.S. 41) corridor or the Davis Boulevard corridor. They had a question mark by someone who said that they were born there, but she doesn't live there anymore. They said someone was -- owned some property, but they said in East Naples; they didn't say where. And so I thought those two vacancies didn't really seem to fit any of the people that we -- we had heard from. The Bayshore resident, Deborah Russell, would have fit. The Gateway Triangle resident would have been Alicia Poole. We -- in fact, we had -- we had a letter encouraging us to vote for her. Bill Neal would be the only one there from the MSTU as a representative. And then we had a representative at large, but it said who resides or engages in business, and that would have been Mike Hoy. I didn't know -- it said Sharon King here as a -- I have a question mark there -- as a Bayshore business owner. I didn't know if she would be considered a Bayshore business owner or not. But then the other two, I couldn't find a name to fit Page136 May 22, 2001 into those categories. COMMISSIONER MAC'KIE: And that's why my recommendation was for the people who live in the district, because we can't chose from people we don't have. You know, I mean -- COMMISSIONER FIALA-' We don't advertise again for those business positions, or do you just take -- whether they fill those -- I'm new at this stuff. COMMISSIONER MAC'KIE: No, no. It hasn't been our practice but there's nothing to say that we couldn't do it. I don't know -- I'd want to hear from Marlene about what that might do to the schedule and the quorum and that kind of stuff. That's why I basically wanted to choose from those applicants that we have available. MS. FOORD: For the record, Marlene Foord, planning services. Your minimum number of advisory board members must be five. So as soon as you have five members appointed, we can go ahead and get started with the meetings. I think the quorum is probably three of those five members, or it may be four of the seven members that would be appointed. So we can go ahead and move forward even if you only have five or six members. COMMISSIONER MAC'KIE: So we could appoint five and readvertise two. COMMISSIONER FIALA: Just strictly for businesses along the Tamiami Trail and Davis Boulevard. COMMISSIONER MAC'KIE: I'm going to withdraw my motion, and let's rethink it. Are you showing that there's a speaker on this item? MR. OLLIFF: I am. COMMISSIONER MAC'KIE: I'd love to hear from whoever that is. Page 137 May 22, 2001 MR. OLLIFF: Mr. Chairman, I'll go ahead and call the public speakers. Chuck Gunther. MR. GUNTHER: Chuck Gunther with the triangle community association. What -- one thing we'd like you to know is -- what you're saying I think is great. I think you should readvertise for those businesses. I'm glad to see you're picking just people from the area. There was a couple people that applied that I think were outside the area. We wanted to make sure you took it from the area. So thank you very much. That's all I have to say. COMMISSIONER MAC'KIE: And thank you, and make a little plug for the association you've just formed. MR. GUNTHER: We just formed the Freedom Triangle Association in the triangle. Our people didn't like the name Gateway. We went to Freedom. We feel that's what we're fighting for, as many other people in the county, we think. And we're glad to see the county working together with us. We're working right now with the neighborhood cleanup. We've had many people show up at our meetings, from 78 -- our lowest meeting was the one that one of your staff people showed up at; we only had 31 people which really made me feel bad. After 78 and 65, it was kind of discouraging. Our next meetings we expect more. And the commissioners are always welcome at our meetings. COMMISSIONER MAC'KIE: And I've gotten wind of them now and have them on my calendar and just commend you so much for the work you're doing. An association in that area is what has been so desperately needed, and I just wanted to give you the chance to plug it and tell people to call you and join up. COMMISSIONER FIALA: I would love to be invited, and I promise I won't say a word, ask a question, anything. MR. GUNTHER: Just don't discuss between each other. That's all. Thank you. Page 138 May 22, 2001 (Several speakers at once.) COMMISSIONER MAC'KIE: So, Donna, Commissioner Fiala, you had -- if I may, you had reviewed these for compliance with the categories. COMMISSIONER FIALA: Yes. COMMISSIONER MAC'KIE: Could you go through that again? COMMISSIONER FIALA: Yes. What I came up with was Bayshore resident, Deborah Russell. COMMISSIONER MAC'KIE: Okay. COMMISSIONER FIALA: Gateway Triangle resident, Alicia Poole. Bayshore business owner, I had a question mark there, Sharon King, because I believe -- if I -- if memory holds right, she was on Dominion, and I figured that might have been in the Bayshore category, but I was groping for that one. COMMISSIONER MAC'KIE: I think it is; is that right? Yes. I think she satisfies that. COMMISSIONER FIALA.' Okay. And then the Bayshore MSTU, the only one applied there was Bill Neal, and obviously he would be a great choice anyway. And then the Bayshore Triangle component -- or rather the at large representative, Mike Hoy, who lived on Poplar, I think it was, or something like that. So those were the five that I had put in there. COMMISSIONER MAC'KIE: If you'll nominate those, I'll second them. COMMISSIONER FIALA: Well, I'd like to make a motion to nominate the five people that I just mentioned. COMMISSIONER MAC'KIE-' And I guess we would ask Ms. Filson to readvertise specifically for a Tamiami Trail business owner and a Davis Boulevard business owner to loin us. But we would have our five, so we could get started. COMMISSIONER FIALA: I'll amend it to say that. CHAIRMAN CARTER: Okay. We have a first by Page139 May 22, 2001 Commissioner Fiala. We have a second by Commissioner Mac'Kie. signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: (No response.) CHAIRMAN CARTER: Motion carries 5-0. All in favor Opposed by the same sign. Item #10G RESOLUTION 2001-201, APPOINTING PAMELA LULICH, NANCY SIEMION AND BRIAN DENNIS AS NON-VOTING MEMBERS; AND GLENN E. WILT, MARK B. MORTON, THOMAS A. COLLINS, II, AL MOORE, WILLIAM H. POTEET, JR., GARY GALLEBERG AND BONNIE R. MACKENZIE TO THE 1-75 & GOLDEN GATE PARKWAY AD HOC ADVISORY COMMITTEE - ADOPTED Moves to Item 10 -- yeah, 10-H, appointment of a member to the Rural Fringe Area Assessment Oversight Committee. COMMISSIONER HENNING: 10-G, I think, Mr. Chairman. CHAIRMAN CARTER: Sorry about that. COMMISSIONER COLETTA: 10-E, you said? CHAIRMAN CARTER: 10-G, appointment of members to the 1-75 and Golden Gate Parkway Ad Hoc Advisory Committee. COMMISSIONER HENNING: If you would indulge me, Mr. Chairman, I'll go through there. What we have is three nonvoting members, and I would like those nonvoting members to be Dennis -- Brian Dennis, Nancy Siemion, and Paula (sic) Lulich. We also have two from the City of Naples, naturally Mayor MacKenzie and Councilman Galleberg. And then the rest of them would be five voting members, along with the two voting members from the City of Naples, naturally. Al Moore has been very active in the interchange issue; Tom Page 140 May 22, 2001 Collins, who lives in that area; Mark Morton is -- brings tremendous -- COMMISSIONER MAC'KIE: Excellent. COMMISSIONER HENNING: -- things to the table; and we have two from the civic association, William Poteet and Glenn Wilt. And that is a motion. And I would just like to state we have two people that received the Citizen of the Year for Golden Gate on this application, and that's Cheryle Newman and Glenn Wilt. COMMISSIONER MAC'KIE: Has the winner of that been announced yet? COMMISSIONER HENNING: Yes, it has. COMMISSIONER MAC'KIE: And both of them won? COMMISSIONER HENNING: Yes. COMMISSIONER MAC'KIE: Wow. Congratulations. second your nominations. COMMISSIONER FIALA: you just mentioned, please? I'll Could you repeat the people that I remember a few of them: Al Moore, Bill Poteet, Glenn Wilt, Mark Morton. COMMISSIONER MAC'KIE: Tom Collins. COMMISSIONER HENNING: Tom Collins, Gary Galleberg. COMMISSIONER FIALA: I've got the other five down here. COMMISSIONER HENNING: and Wilt. CHAIRMAN CARTER: Okay. I have a motion, and I have a second. All in favor signify by saying aye. (Unanimous response.} CHAIRMAN CARTER: Opposed by the same sign. (No response.} CHAIRMAN CARTER: Motion carries 5-0. Poteet, Moore, Collins, Morton, Item #10H Page 141 May 22, 2001 RESOLUTION 2001-202, APPOINTING DAVID E. BRYANT TO THE RURAL FRINGE AREA ASSESSMENT OVERSIGHT COMMITTEE AND CONFIRMING THE APPOINTMENT OF KATHY PROSSER - ADOPTED Now I move to the appointment of a member to the -- MS. FILSON: Four members. COMMISSIONER MAC'KIE: Rural Fringe. CHAIRMAN CARTER: -- Rural Fringe. COMMISSIONER COLETTA: I'd like to recommend David Brandt (phonetic}. COMMISSIONER HENNING: Bryant. I'll second that motion. COMMISSIONER MAC'KIE: And would you please include confirming Kathy Prosser as The Conservancy representative, Mr. Coletta? COMMISSIONER COLETTA: What's that? COMMISSIONER MAC'KIE: Would you include confirming Kathy Prosser as The Conservancy representative? Yes. That's fine too. I'll include COMMISSIONER COLETTA: that as part of the motion. COMMISSIONER HENNING: CHAIRMAN CARTER: Okay. I will too. We have a motion by Commissioner Coletta; a second by Commissioner Henning to confirm the appointment representing The Conservancy of Kathy Prosser and the representative to be Mr. David Bryant. All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Opposed by the same sign. (No response.) CHAIRMAN CARTER: Motion carries. Item #101 Page142 May 22, 2001 RESOLUTION 2001-203, APPOINTING M. JAMES BURKE, JOHN DOMENIE, CHRISTOPHER F. SUTPHIN AND GEORGE WERNER TO THE PELICAN BAY MSTBU ADVISORY COMMITTEE - ADOPTED Takes us to the last appointment item, which is 10-1, appointment of members to the Pelican Bay MSTU. COMMISSIONER MAC'KIE: Mr. Chairman, I need to make a record of my abstention on this for the same reasons as I've stated on the -- CHAIRMAN CARTER: Thank you. I was going to ask you what your position was. I appreciate that. Let me, before I make the recommendation, say a couple words. I believe that the community is to be proud that -- the number of candidates that stepped forward for this. Some 16 volunteered to step forward to fill four positions. This speaks very highly of the Pelican Bay community and their desire to be active in this taxing authority. And this was not an easy decision for me because there were a lot of people who always want, quote, my person on the Pelican Bay MSTBU. To the board, I took into consideration the area where representatives were represented; when we had Ordinance 2000- 82 in place, that the people might have stepped up to run for supervisor, and I think that always speaks well for people who are willing to be elected by their constituency; community experience, whether or not I got phone calls or interviews. I looked at the MSTU's recommendations; and also what was mentioned earlier today, could we add some new blood, some new thinking, to that process to augment the fine people that are there. So my recommendations to the board will be as follows: George Werner, who would have to be -- who would have to waive the section allowing him an opportunity to serve a third term, but Page 143 May 22, 2001 Mr. Werner has been a very stable force on that MSTBU. He was desirous of doing it but would have stepped aside. But there was an overall support in the community to invite George to continue because of his balance that he has brought to the MSTBU through the years. Mr. Christopher Sutphin, who represents the Bay Colony area and would be replacing Dr. Varley. That is the highest taxed area in Pelican Bay, and I thought it was important that they have a representation. The final two were gentlemen who -- and also -- Mr. Sutphin also, I believe, volunteered to run as a supervisor when that was a subject. The third one is Mr. James Burke, who would be new. He represents an important area in the community, and he is one who has volunteered to step forward because of his concerns and willingness to provide good, solid participation on that board. And the fourth one is John Domenie, who has appeared before this commission. And John has said if he was appointed, he would resign from the property owners' association board of directors. He would not put himself in a position of a conflict of interest. But since he does represent a geographical area and a sizable group, the property owners' association in Pelican Bay -- I mean, he, as a part of that, understands their needs and wishes and desires. To me that gives it balance. So I'm recommending those four gentlemen to the Board of County Commissioners. And I say there are a lot of fine people in there, but in my judgment this morning as commissioners are making the decisions and if it's my call, those are the four that I recommend. COMMISSIONER HENNING.' I'll second that motion. CHAIRMAN CARTER: I have a second from Commissioner Henning. Any discussion? Page 144 May 22, 2001 All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: (No response.) CHAIRMAN CARTER: much. Opposed by the same sign. Motion carries 4-0. Thank you very Item #12C1 ORDINANCE 2001-27, AMENDING ORDINANCE 74-50, AS AMENDED BY 90-10, TO ADD MAXIMUM OFF-SITE DISCHARGE RATES TO THE WIGGINS BAY BASIN AND THE HARVEY BASIN AND TO CORRECT PROBLEMATIC SURFACE WATER RUN-OFF FROM SINGLE FAMILY RESIDENTIAL LOTS CAUSED BY ELEVATING THE LOT SUBSEQUENT TO INITIAL CONSTRUCTION OF THE RESIDENCE - ADOPTED MR. OLLIFF: Mr. Chairman, you have one item left on your agenda, and I could get three staff people out of here before your next item if you could -- CHAIRMAN CARTER: With the indulgence of the community from Vanderbilt Beach, I would like to do that item so that we would not tie up staff. COMMISSIONER MAC'KIE: Is that 12-C-17 MR. OLLIFF: 12-C-1 is -- frankly, the only reason it's on the consent -- on the regular agenda, because it is an ordinance that requires adver -- COMMISSIONER MAC'KIE: Motion to approve -- COMMISSIONER COLETTA: Second. COMMISSIONER MAC'KIE: -- staff recommendation. CHAIRMAN CARTER: I have a motion to approve by Commissioner Mac'Kie; a second by Commissioner Coletta. All in favor signify by saying aye. Page 145 May 22, 200t (Unanimous response.) CHAIRMAN CARTER: Opposed by the same sign. (No response.) CHAIRMAN CARTER: Motion carries. Thank you very much. COMMISSIONER MAC'KIE: Get a hair cut, Chrzanowski. CHAIRMAN CARTER: Zoom the camera on that man. COMMISSIONER FIALA: Didn't he used to have real curly hair? COMMISSIONER MAC'KIE: Yeah. Real curly. CHAIRMAN CARTER: Didn't even recognize him. He must have hit the same barber I did. Item #10J REQUEST FOR BOARD DIRECTION REGARDING SECTION 163.3215 F.S., VERIFIED COMPLAINT FROM VANDERBILT SHORES CONDOMINIUM ASSOCIATION, INC., VANDERBILT CLUB CONDOMINIUM ASSOCIATION, INC., THE MANSIONS CONDOMINIUM ASSOCIATION, INC., GULF COVE CONDOMINIUM ASSOCIATION, INC., AND VANDERBILT BEACH AND BAY ASSOCIATION, INC., CHALLENGING THE COUNTY'S APPROVAL OF SDP-2000-108 FOR THE VANDERBILT BEACHCOMBER RESORT AS INCONSISTENT WITH THE COUNTY'S COMPREHENSIVE PLAN - SITE DEVELOPMENT PLAN RESCINDED AND BUILDING PERMIT REVOKED Okay. It is now 20 minutes to three. This will not be a short discussion, as I understand it. So is there -- Commissioner (sic) Weigel, is there a break point in there, or do you want to go forward? I'm -- whatever is the pleasure of the board. COMMISSIONER MAC'KIE: Go. CHAIRMAN CARTER: All right. Let's go. And then if we reach a point where we need to break a few minutes, we can. Page 146 May 22, 2001 As you know, I had asked the board to reconsider the reconsideration and are gracious enough to give us time to do that. I have met with all parties in the community over the last several weeks. We are at the point today where it's time to bring it back to the board, and it will become a board decision in terms of the information that's presented to you this afternoon. I wish I could come here today and tell you that we have found an amenable resolution to this. We haven't. All parties have pretty strong positions in terms of how they feel about the issue. I will compliment all the legal counsels that have been present on all sides who have met as late as yesterday to see where we might be in this situation. They have all worked hard. They are truly representing the clients and -- as Mr. Weigel is representing us, to try to see what we might do with this situation. Therefore, I'm going to ask Mr. Weigel to present to you where we are and what we've done. We'll take public input on this, and then the board will need to make a decision. Mr. Weigel. MR. WEIGEL: Thank you, Mr. Chairman. I appreciate the opportunity to bring this issue back before the board. And, as Dr. Carter indicated, county attorney office, John Dunnuck from development services, Commissioner Carter himself have met several times with the -- both the attorneys that have become involved in the project -- and for purposes of the project, I'll identify the attorneys with whom we have spoken. One is David Rynders, who has been representing the neighborhood associations and -- neighbors, as I will call them from time to time in my discussion today -- the neighbors in Vanderbilt Beach area, as well as Mr. Michael Volpe. And we've also, of course, been working with Mr. Bruce Anderson and George Varnadoe on behalf of Mr. Burke of Aquaport, who is the owner and developer of the.92 acre lot for Page 147 May 22, 2001 the project known as the Beachcomber Resort Hotel. COMMISSIONER MAC'KIE: Mr. Weigel, who is Mr. Volpe's client? MR. WEIGEL: I beg your pardon? COMMISSIONER MAC'KIE'. Who is Mr. Volpe's client? MR. WEIGEL: The same neighborhood associations that David Rynders is representing. Thank you. COMMISSIONER MAC'KIE: Sorry. MR. WEIGEL.' And I see Mr. Anderson. I do not know if Mr. Volpe is here. Fine. Great. In any event, in our discussions our charge was several things, and that was we -- we had before the board an agenda item that had come to the board based upon a statutory review requirement posed by the neighbors, the residents in the area of the proposed project, and the board's standard of review for the approval of a site development plan for the proposed 68-unit hotel on the site, a.92-acre site. The board was asked to review and approve, and the backup materials showed the standard and the recommendation of county attorney office at that time. The standard was, was the staff approval of the Beachcomber Resort Hotel Site Development Plan consistent with the county Growth Management Plan? At the first hearing -- it was rather lengthy -- Mr. Rynders spoke at some length about what he considered to be inconsistencies with the Growth Management Plan and the Land Development Code. Coming from that meeting and in the following reconsideration approval of this board, we looked at what was approved by -- had been approved by the county in its administrative development review process. We also spoke and listened to, very carefully, the residents in the area, the neighbors as they call them. And we came to two or three pretty Page 148 May 22, 2001 concrete conclusions: One was, the neighbors absolutely did not want a 68-unit hotel there, and they felt that it was inappropriate. And, in fact, they wouldn't have filed their official court proceeding requiring the hearing that we had if they didn't have that feeling. We also learned from the developer and developer's counsel that they felt absolutely entitled, under the rules of Collier County, to build a 68-unit hotel on the site and that that was in conformance with the size of the site and, in fact, all other Land Development Code regulations and the Growth Management Plan. And they vehemently denied that the approval by the staff in its review of the proposed project and the site development plan approval in the hands of the developer was, in fact, inconsistent with the Growth Management Plan. So starting with that, we looked to see what can we achieve that might work in the area, something in the area -- in the term of compromise, something in the term of bringing a project together so that it might work with the citizens. Perhaps, as Mr. Carter indicated in the mediation of this comprehensive construction -- rocks on the beach litigation, when you mediate or look for compromise, perhaps no one will be totally happy, but they may be happier than they otherwise are or will be. So here's what we looked at. Fewer hotel units; the developer said, "No." What would the residents accept? The residents would accept 15 condominium units on the site. The zoning, parenthetically, allows 16 condominium or residential units, multifamily units, on an acre of land. This being under 1 acre of land, it could purportedly sustain 15 condominium units. Would the developer accept that? "No. Not fiscally viable." So we come back again. What will the developer accept if it doesn't build a hotel, and it does build residential units? "Twenty-four." Well, will the residents accept 24? "No." Page 149 May 22, 2001 But looking further than that, the Collier County Land Development Code in conjunction with the Growth Management Plan only allows, in any event, 16 residential units per acre. Could the Board of County Commissioners legally or with the advice of counsel agree to 24 units on an acre -- on a plot of ground that could only -- is zoned for 16 units? No, we can't do that, nor could we advise the board to do that. Alter proposal, well in the idea of settling a lawsuit, since we now have a lawsuit filed, why couldn't the board, in fact, accept 24 units in this particular specific case to settle a lawsuit? The answer from county attorney office is, "No, we can't do that. We will not jeopardize a development inconsistent with our Growth Management Plan." We have enough problems with DOAH and DCA and Steve Seibert and the group. We cannot go there. Okay. We come back again. Commissioner Carter reminds me to think outside the box. Okay. Outside the box we say, "What could we do here that works for all the parties?" Here comes the mixed-use concept. Commissioner Carter says, 'Let's go with it." The mixed-use concept is, "Hey, if they can build up to 15 units on the site, 15 residential units, condominium units, how about the developer build up to, maybe less than, 15 residential units, but they could also put some commercial in there also, such as some hotel units. Maybe they come out with a figure, like, 30, 34, 38, anything below 68 units, hotel units." Well, the answer from the developer is, "No, don't like it." The answer from the residents is, "No, don't like it. Would rather have a 68-unit hotel than a mixed use of 15-or-less-condominium- unit arrangement with hotel units on top of there even if the total complex is far less than the 68 hotel units as already approved by the staff." Not getting too far, but we're certainly checking out the possibilities. Page 150 May 22, 2001 Okay. Other idea. What can we do to bring partnering to this concept, this project. We asked the developer, "Can you provide some amenities to the neighborhood? Can you provide something that would make whatever you build, even if it's a 68- unit hotel, work with the neighbors? What can you do for them? Sidewalks? Lighting? Something that would kind of help the area so that whatever you build works better and engenders friendship with the people that otherwise would not rather see you there?" The answer is, '~Nell, yes." And, in fact, Mr. Anderson and Mr. Varnadoe did put together a proposal. And the proposal was that they would, in fact, enhance the beach access area. And they showed us a -- a picture of the way it looks now, and they showed us a concept picture of what it would look like enhanced. And I can tell you, those of you who haven't seen it, that it's significantly enhanced, and what they proposed was very, very nice. Well, the idea of that with the 68-unit hotel didn't buy any -- any further "yes" from anybody, as far as that goes. What else could there be for partnering? Well, I don't know. Nothing further came forward from the hotel developer side of things. We didn't really get any suggestions from the neighbors either because they didn't really cotton to the idea of partnering or, you know, cozying up to the 68-unit hotel. All right. We go to probably Plan F. We start looking real hard at -- in fact, at the same time looked very hard at the legal aspects or legal questions that may affect this development. We'd heard questions about deed restrictions. In fact, that had been brought up at the -- at the initial board meeting, and David Rynders had spoken about that. But we looked at the deed restrictions very closely. And I want to tell the public that the fact is, is deed restrictions in private title matters are not matters that are subject to the review of the development Page 151 May 22, 2001 services department or the county generally. The county does not enforce private deed restrictions, if they exist. But in this particular case, since they were raised, we rolled up our sleeves, and we looked at them. And what we saw, and I can tell you, is that sure enough, there were deed restrictions created in 1953 in this subdivision. But also sure enough, the particular parcels, Lot 51 and 52 (sic) to which this project pertains, were not part of the original plat that the deed restrictions were -- I can't think of the word -- that they applied to. So, in fact, this particular little finger of lots, including Lots 50 and 5t, came in line a little bit later, and they were not included in the deed restriction document. And I think a very good legal argument would be made by those who have standing to argue it, the deed restrictions have nothing to do whatsoever with Parcels 50 and 51, notwithstanding that that has nothing to do with the Growth Management Plan, which is a limited standard of review that the Board of County Commissioners has. Okay. Trudging ahead and looking at further legal aspects of this, Mr. Anderson has provided me -- incidentally, I have provided the board some copies of a few relevant sections of the Growth Management Plan, the Land Development Code, and correspondence from outside counsel Nancy Linnan, who is expert in land use matters, with Carlton Fields, who we've used in this project also. I'll get to those references in just a moment. COMMISSIONER MAC'KIE: Love getting a couple inches of paper. MR. WEIGEL: Mr. Anderson has provided this submittal for today, and I'm sure he'll address it when he has his opportunity. I'm just holding it up because, as you can see -- and perhaps you want to put it on a visualizer. John, could you help us with that? You can take mine and put it on the visualizer. Page 152 May 22, 2001 It's going to take us into the area of architectural design and setbacks. Now-- got it on there? Great. Thanks, John. What we're seeing here is that on this parcel the 68-unit hotel will have the first few floors of -- of construction will be parking followed by the hotel aspects, the rooms of the hotel. Also, remember -- we heard it confused in the past, and I don't want it confused any further -- that when we talk about density, we're talking about residential units, like condo units or multifamily. But when we talk about commercial uses like a hotel, we're talking about intensity of use. Intensity of use. Now, based upon the floor average ratios that was adopted in last year's June, July Land Development Code cycle, from that -- from that approval of that standard came the ability for -- arguably the ability for a project like this to be built on a site of this size. Now, the parking is below, and the parking does not factor into floor area ratio. The building, as you can see, has been called wedding cake or tiered. It's been called many things beyond that; I can assure you. But the fact is that another aspect that we're looking at very closely is in regard to the setbacks. Now, the setbacks are something which comes up under the Land Development Code, and specifically I would ask the board members -- and I've got a few extra copies here -- to look at Section 2.2.8, residential tourist district. I even took the liberty of highlighting a couple places. And you can see that the purpose and intent of the residential tourist district is to provide lands for tourist accommodations and support facilities and multiple-family uses. For permitted uses it says, "The following uses are permitted as of right or as uses accessory to permitted uses in the residential tourist district." And the permitted uses, right off the bat, No. 1, hotels and motels; No. 2, multiple-family dwellings. Page 153 May 22, 2001 Looking at the next page, though, toward the bottom, Section 2.2.8.4.3, you see minimum yard requirements, and it starts with front yard and goes to side yard, back yard. And you'll note that the standard there is one-half the building height as measured from each exterior wall or wing of a structure with a minimum of 30 feet. Well, again, looking at the picture of the building you have before you, they, in fact, are 30 feet in -- have setbacks of 30 feet in because the initial exterior wall is 60 feet high. And then it goes on and gets higher. But, as you can see, as it moves in, the setback -- arguably the setback -- thank you, John -- from the interior -- exterior walls further up, the setback is arguably further in. Now, I'm going to give you a concept to work with or, should I say, wrestle with here, and it's fraught with difficulty, but you'll have it here. It's laid out before everyone. You'll certainly hear speakers talking about it too. And that is that the -- the setback, the standard I just showed you, read to you -- I've just misplaced it already. Thank you -- is one where, as you can see, you achieve what we have right here. You could probably achieve no more than what we have right here, but this is to the max. Typically our Land Development Code is a minimum code, meaning you could never build less well than what the code says. But what frequently happens is people develop to the maximum that the code allows. We're approaching that here. I'm not an engineer. I didn't, you know, draw this thing up, but I think we're pretty much there. And the setbacks are approximately 30 feet based upon 60-feet exterior-- initial exterior walls. And then as the walls -- other higher exterior walls go up and in, then, in fact, arguably, the setback is still achieved under the -- under the language of the -- of the minimum yard requirements that I'm having you look at right now in 2.2.8.4.3. But I -- I charge you -- I challenge you, the board, the public, Page 154 May 22, 2001 others, what are we achieving with setbacks being applied this way and with the language that we have? Because whether this building was a Washington Monument type building, a hundred feet tall; or maybe call it a UN building where it's tall and flat on its sides; or whether it has appendages or wings that come out at the side, I would submit that you still have, one man's view, the blockage of light and space perception changes that come whether the building has -- is straight up and a hundred feet tall or if it's a hundred feet tall but it's got all these things on the side. A hundred foot building requires 50-foot setbacks. This is a hundred-foot building, but you'll notice -- and there's no denying that. But you'll notice that the setbacks start at 30 feet because the initial exterior walls are 60 feet tall. Now, this is a -- this has been a consistent application by staff of -- of this particular standard. It's been done that way for nine or ten years at least. In fact, it was drafted, crafted to be that way, is what our staff will tell us if they're on the witness stand talking about this heighth and setback standard. That's what they'll tell us. Those are the facts. Is it the standard that achieves what you, as a board, would want to be achieved? I don't know. You'll have to answer that question. But if, in your -- if, in your thinking, you think that this is a perverse or a strained application as you see manifested in this picture and that, in fact, it has been perverse and strained for Io these many years with other projects long ago approved and built, current projects with building permits being built right now, if you think that that is perverse, I would tell you that you, in fact, are ultimately the interpreters of the legislation that you pass. And you can tell staff that that is wrong, and you can tell staff that it's wrong even right now. But if you tell them that, you have to know the risks, both with this project and other projects already approved. Page 155 May 22, 200t Part of the discussion we've had with the counsel involved in this has -- and I heard Mr. Anderson before the Planning Commission last week when FARs were being discussed saying, "Are you talking about creating nonconformities for what are currently conforming uses if they reduce or eliminate the FAR standard?" Well, yes, I think we're certainly talking that here if you come away off the standard. But if you believe that the standard as applied is perverse and is incorrect and, therefore, is a standard that does not achieve what the Growth Management Plan is attempting to achieve, you may have something to utilize in your decision that you have today. Yes, Commissioner Mac'Kie. COMMISSIONER MAC'KIE: David, at what point -- are you planning to tell us about the nature of litigation that would be forthcoming pursuant to this suit? MR. WEIGEL: I'm pretty close. COMMISSIONER MAC'KIE: What are the risks? MR. WEIGEL: I'm pretty close. I just wanted you to know -- COMMISSIONER MAC'KIE: And I'd appreciate it if you -- MR. WEIGEL: I want you to know some of the bases of the decision you have. The underlying concept is inconsistent with the Growth Management Plan. Now, how are you going to show yourselves it's inconsistent with the Growth Management Plan? If after hearing everything today you come to that conclusion -- because I'm not asking you to come to that conclusion. I'm just telling you some of the things you have to consider. And I certainly want you to make an informed decision, and you'll hear statements from other people, both in addition to and against what I've been telling you. So under the Land Development Code -- and, again, talking with our outside counsel, we have thoughts like if the Land Development Code is applied incorrectly, you're not achieving Page 156 May 22, 2001 compatibility with the Growth Management Plan. Do we end up with an intensity of commercial use here which is not appropriate for the Growth Management Plan because, in fact, we have a building that comes out -- based on the, call it, exact- word application of our standard, is our standard a problem with the Growth Management Plan creating, therefore, an inconsistency with the Growth Management Plan? It's not exactly a question did the staff not apply the standard. The question is, does the standard itself create an inconsistency with the Growth Management Plan? If this board today -- I could use this, really, as probably a rebuttal after everything is said, but I'll tell you now, and you'll hear it again from others. If the board today makes a determination that the site development plan approved by staff pursuant to the Land Development Code and the Growth Management Plan as we have it is incorrect and overturns it, well, I certainly expect we'll have a lawsuit. We already have two suits going right now with the neighbors. Then those are suits that we have to defend to the extent that we can defend them. If we adopt, to some degree, positions that the neighbors are asserting in their lawsuit, we will reckon with that, obviously working with you, our client, if we get that direction. But I will say that if the board makes a determination to overturn the staff approval, it's high-risk litigation that we go into. Don't ask me for specific dollars, please. But I can tell you that we take our cases as we find them, and to achieve a result, there may be significant costs. And we also want to see that if we take on the risks, we achieve the result that we're looking to achieve. Again, if there are vested property rights or other property rights which a court of law determines that we have trammeled, then we will pay. By the same token, maybe that's appropriate, Page 157 May 22, 2001 too, but that's part of the judgment call that comes later on as the case may develop, if there is a case. A couple other things that I wanted to mention, then I'll be done for questions, or you can always interrupt me, of course. But other things in the pike. Commissioner Carter certainly didn't want us to look purely at this one parcel,.92 acre, but what can we do in the district? What can we do big picture? Let's get a little vision on this thing. So, as you, I think, are aware, in the current Land Development Code process, we not only have a redefinition of residential tourist hotel -- destination resort hotel which would provide for additional amenities, common areas, and things of that nature and reduce the number of units that could be had whether it's a 1-acre lot or bigger, that's a significant conceptual change which is before the Planning Commission. It will be before you soon. Additionally, we wanted to offer the Planning Commission, the public, this board, the opportunity to explore whether they wanted to confirm the floor area ratio concepts which was brought into play last year in this RT district or if they want to amend it or if they want to eliminate it all together. Elimination all together would ostensibly take us back to a maximum of 26 hotel units per acre or, in this case, 24 units on this parcel. But we can't go back in time, can we? At any rate that's the overview, and I'll be ready for questions at any point in the -- in the session here. CHAIRMAN CARTER: I have one quick question. Suppose you did happen to have a 50-foot setback. What happens to the intensity of the use on this project? MR. WEIGEL: Well, the planner may want to jump in, but it seems to me intensity of use goes down because you're eliminating the ability of useful space, which is the number of units that can be built in per-unit volume. Page 158 May 22, 2001 CHAIRMAN CARTER: Could you still go a hundred feet in the air? MR. WEIGEL'. You can always go a hundred feet in the air because our land code provides 10 stories or a hundred feet, and that's not at issue here today. CHAIRMAN CARTER: Okay. Do you have any comment on that? MR. OLLIFF: No, sir. But, Mr. Chairman, this may be a good time to take a break for your minute-taker. You've been at it about an hour and a half. We can come back to public speakers. CHAIRMAN CARTER: And then we'll come back, and then we'll hear counsel's reports, and then we have a number of registered speakers, I understand. Anybody that generates a question in between, they can come back and ask our counsel. Okay. We'll take ten. (A break was held.) CHAIRMAN CARTER: Thank you, ladies and gentlemen. We will proceed. Commissioner Henning has a question of our counsel, and then we'll go to public speakers. COMMISSIONER HENNING: Mr. Weigel, you mentioned two different things, density and intensity; density meaning dwelling units, and intensity would be commercial. And intensity applies to this particular item; am I correct? MR. WEIGEL: That is correct. COMMISSIONER HENNING: So I guess the question is, before the Land Development Code amendment to go to floor area ratio, is that a intensity or -- intensities in this area? MR. WEIGEL.' Okay. Before the floor area ratio standard was adopted, 26 hotel units was the most number of units or most intensity of that kind of unit that could be brought to this acreage; 26 per acre, 24 on this site. COMMISSIONER HENNING: Okay. Thank you. Page 159 May 22, 2001 MR. OLLIFF: Mr. Chairman, we've got 17 registered speakers. So, again, like the item before, I'll call two at a time. CHAIRMAN CARTER: Put the next person on deck, and let's do it. MR. OLLIFF: The first speaker is Frank Halas followed by Charles Metz. MR. HALAS: Good afternoon. I'm Frank Halas. I live at 405 Flamingo Avenue. I'd like to know if I could reserve my time until after the opposition speaks? CHAIRMAN CARTER: No, sir. We're taking registered speakers in order, and they will be down at the end -- MR. HALAS: Okay. CHAIRMAN CARTER: -- I believe. MR. HALAS: Thank you very much then. I'm here in regards to -- I live at 405 Flamingo Avenue. And I purchased the property about three years ago, and one of the reasons was that we liked the area so well, the serenity of it. Now, with this proposal for building a 68-story (sic) hotel and upon looking at the way that it was presented leaves a lot to be desired as far as the amenities of the area. The other thing that concerns us is -- or concerns me is the watercraft concession that they want. I don't have -- the only picture I have here is a local picture that was given recently by a real estate person. And you can see that here's the waterways that are located in the Vanderbilt area, which we're all very proud of. All this whole area back here is a no-wake zone. I can't comprehend what type of a problem we're going to encounter with watercraft back here, not only the 68-story hotel and being a no-wake zone. And people back here love the quietness and the serenity. That's one of the reasons that they buy property there and it Page 160 May 22, 2001 costs so much. And I would hope that the commissioners would also look at that as one of the things that we're concerned about. Secondly, that I'd like to bring up is the fact that this developer or the land purchaser of this property -- let me start over here a little bit. First of all, what was located on this piece of property originally was a home, single-family home, along with a one-story condominium complex. And I believe it had, like, maybe six or eight units there. Then the person that purchased this property, in the paper this morning, says that he purchased this about one month before the Land Development Codes were changed which we, the neighborhood, didn't know anything about. So obviously the person that purchased this had inside information that those codes were going to be changed, and therefore, that's why he spent the large sum of money to build this hotel. And here we are in this demise (sic). And since someone in the staff or the Planning Commission changed these unstbeknowing (phonetic) to us until this matter came in front of everybody as we are here today, I'm very concerned about what's happening. And we'd really like to keep Vanderbilt Beach the way it is at this point in time. And I think that you -- if you lived there personally yourself, that you would take a great interest in trying to keep your neighborhood the way it is. Thank you very much. CHAIRMAN CARTER: Thank you, sir. Next speaker is Charles -- MR. OLLIFF: (Applause.) MR. OLLIFF: Boyer. Next speaker is Charles Metz followed by B. J. MR. METZ: For the record, my name is Charles Metz. I'm vice president of the Vanderbilt Beach Property Owners' Association. We represent approximately 600 property owners in Vanderbilt. We are not currently a member of the petitioners, nor Page 161 May 22, 2001 are we a member of the lawsuits involved. It's been our position that this particular building would be much better used and utilized for the community if it was a residential use rather than a commercial use of any kind and that this particular commercial use with its existing density is an unconscionable use that sets a dangerous precedent and a difficult precedent for our neighborhood. We'd like to thank the board for having postponed this for reconsideration, giving the individuals involved time to try to come to an agreement. To that effect, after that was announced, the Vanderbilt Beach Property Owners' Association offered to underwrite the expenses of professional arbitration of this issue if the participants carried forward the idea of participating in it. We're very disappointed that they elected not to do so, and we're also very disappointed that neither side seems to have come up with a compromise position that can be negotiated to this point. We also requested at that time of this board, and I'd like to reiterate that request, that this area, this region, be given some special consideration for an overlay planning. We're in a situation where this is an issue, very difficult issue, but it's only 1 of probably 30 we've faced in the last year. We're at the very beginning stage of redevelopment of this area, and it's only going to get more difficult. It's our position that we cannot afford to address these issues and the redevelopment of this community one lawsuit at a time. We hope you'll give consideration of that request, hope we'll find some funds for that, and will assign some staff to that purpose. We commend and appreciate the fact that we're now looking at the Land Development Code again as a possibility that comes up next month, as I understand it, that this was possibly not the best interpretation or the best development of the Land Development Code, and maybe we'll make an amendment. But Page 162 May 22, 2001 that doesn't resolve this issue. What we're faced with at this time is a very difficult decision on behalf of the board, and I would like to suggest, as we look at this, that it looks like the county's going to be sued if they proceed, by the residents, with the permit that's on the table; and they're going to be sued by the developer if they don't. An unenviable position. What I would like to suggest and hope that -- as you address this in that circumstance, that we try to take the high road and try to do what is in the best interest of the general community and let the chips fall where they may. This is a very painful approach. It reminds me very much of a situation a couple of years ago when I served as a volunteer for nearly two years with a committee to redevelop the city's so-called, at that time, mega house committee and establishing exact same kind of qualification, trying to deal with these issues. We brought that forward, after a great deal of hard work by some very talented people, before the general public at the city commission, presented it, and about 24 lawyer stood up in the back of the room with Port Royal residents in hand and said they were going to sue everybody in sight if this was elected. And it was promptly thrown in the trash can. As I can see it, there's no easy way to admit that we need some improvements in our planning, and there's no easy way to make these changes. It's going to be difficult. But this commission has, in the recent past, looked at some difficult issues and has reversed some decisions and has done a very conscionable ]ob of doing so. I hope we'll take that same high road in this issue. All I can add is that if this goes forward, this development is simply too intense, and this neighborhood simply cannot stand it. We have too many other things that we're facing and have Page 163 May 22, 2001 already had to deal with. I'd say there's a good likelihood that there will be other organizations or individuals joining either this particular group of lawsuits, or there will be additional lawsuits filed. We have to come to a better conclusion than what we've got on the table. Thank you for letting me address you today. COMMISSIONER MAC'KIE: Mr. Chairman. CHAIRMAN CARTER: Thank you. Next speaker, please. (Applause.) COMMISSIONER MAC'KIE: I just need to ask a comment -- ask a question of Mr. Weigel about that comment because it's really -- puts on the table the question that I came to the board with today, and that is I know no matter which way I vote on this I'm going to go to court. The county's going to be in -- be sued over this. So my predisposition is -- sort of like it was on the Goodland situation, is I'd rather be sued and, you know, be on the side I believe in than on the side that I don't believe in. But there's -- I'm afraid there's a distinction here, and that is I think if I'm sued by the property owners -- I, the county, am sued by the property owners -- then I have injunctive relief like in Goodland where, you know, the -- in other words, they tell you they sue you to make -- have the court make us do one thing or the other. I think a distinction here is that if we are sued by the developer, we write a check out of the county checkbook, out of the public checkbook. And I don't think we've had that question put to us before. Is this one different? Is that accurate what I said? MR. WEIGEL: I think it's interesting what you said. It's different in degree, different in degree. There are risks in the Goodland lawsuit and, yes, there's a potentiality for injunctive relief there. But in this particular case, we have a claim for injunctive relief against us, in fact, in the lawsuit that's already been filed by the neighborhood associations. That's injunctive Page 164 May 22, 2001 relief, you might say, to achieve the status quo of preapproval of the site development plan. COMMISSIONER MAC'KIE: To make us do something. MR. WEIGEL: To make you do something or -- COMMISSIONER MAC'KIE: Undo something. MR. WEIGEL: -- have the court tell us that something should be stopped, at least until the ultimate issue is determined. And that's often what an in]unction in court is, is a stop to hold things in place until the ultimate issues are determined. And usually an in]unction isn't granted unless there appears, based upon the initial facts and law available, that there is a fairly high probability of success on the party asking for the in]unction. Now, you're not asking me yet about my opinions of the lawsuit that's filed or the lawsuit that we may defend that hasn't been filed yet. I'll wait for that. COMMISSIONER MAC'KIE: The question that I have, though, is I think that if we get sued by the developer, we're not going to get sued just for injunctive relief. We're not going to get sued just to undo something. This'Il be the first, that I know of, lawsuit where we might have to write a check, because this is a business. I mean, is this a potential -- am I right, that they could sue us and say "Here's our lost profits," and we have to actually pay millions of dollars? It reminds me of some things going on in the City of Naples. MR. WEIGEL: Well, believe me, this isn't a forecast, but we might have to write a check on the Goodland matter, quite frankly. COMMISSIONER MAC'KIE: I understand. MR. WEIGEL.' But so this is no different, only potentially in degree and possibly in, call it, rapidity of resolving the lawsuit. Now, what we may have here is a purely legal, a law-based, a law-issue-based lawsuit in which we don't run into questions of Page 165 May 22, 2001 experts and fact finding and things of that nature, and so the answers in court may come quicker rather than more slowly. And so to the extent that a developer, speaking hypothetically, believes that they have been damaged by delays that occur and then ultimately their status quo is returned by the court -- that is a valid site development permit and a valid building permit -- well, the damages will be based on time and questions of how far they were mobilized and if they scrambled to mobilize to, you know, make the damages spector a little bigger or not. And we look at these things very carefully. But I don't see great distinction between the two. I'll say that I think there's more risk in this lawsuit if the board makes a determination that there are reasons to deny the site development plan because of Growth Management Plan conflict. CHAIRMAN CARTER: Could we just go to the next speaker? I've got questions too. I'll just make some notes as I go. MR. OLLIFF: Next speaker is B. J. Boyer followed by Diane Ketcham. MS. BOYER: Good afternoon. First, I have -- agree with Charlie, everything that he said. I thank you for all of the time that you've put into this. And I know that there are going to be lawsuits either one way or the other, but I really feel that in your best interest it would be to vote in the best interest of the Vanderbilt homeowners. We're trying to preserve our quality of life and our property values. Allowing a building of this magnitude on a small lot is definitely a threat to both of these. And you talk about intensity and density, let's talk about practicality. It is practical? And you have to vote with your conscience. I don't want to hear about lawsuits. Everybody walks around thinking they're going to get sued. We all have debts, but we have to go with what we feel inside, and I hope you will today. Thank you. Page166 May 22, 2001 (Applause.) CHAIRMAN CARTER: Thank you. Next speaker, please. MR. OLLIFF: Diane Ketcham will be followed by Carol Wright. MS. KETCHAM: Hello again, Commissioners. My name is Diane Ketcham. I live on Vanderbilt Beach. I am a board member of the Vanderbilt Beach and Bay, but today I'd like to speak to you as head of the Save Vanderbilt Beach Association, a group representing hundreds of homeowners on the Vanderbilt Beach area. Our group was formed because of the changes the county made last year in the Land Development Code affecting our area. Increasing density on Gulfshore Drive was a big mistake, and we're hopeful that you will correct this in June during the LDC hearings. But we are here today because of a disastrous result of these changes, the 68-unit, ten-story Beachcomber Hotel, a huge hotel approved to be constructed on a parcel of land that is less than an acre. In fact, it's even less of an acre than we originally thought. We have recently found out that the site plan your planning staff approved includes 5,000 square feet under water. Another reason why -- one of the numerous reasons why we believe this site plan should never have been approved. I'd like to remind you that on this land before was a seven- unit, one-story condominium complex. Now the developer wants to increase the density on this property by nine times. I've said this before, but it needs to be said again. By increasing density -- and attorneys may call it intensity, but we feel strongly it is density. By increasing density in a coastal high hazard area, you are endangering the lives of those who live on the beach. We have only one evacuation route: The narrow, two-lane Gulfshore Drive. You've already approved the expansion of La Playa and a Page 167 May 22, 2001 new club there that would bring additional traffic. You've approved a beach club owned by Signature that will also increase traffic, and now this hotel. By increasing density on the Beachcomber property you are threatening our safety. We will do whatever it takes to protect our family and our community. If that means suing the government, then so be it. But this is the government that's here to protect us. And we hope you will listen to us today. You can vote to rescind the site plan approval. We have brought numerous objections to this plan to the attention of the county attorney's office. We've had several lawyers and independent planners look at it. We believe there are many inconsistencies in the Comprehensive Plan. The county attorney today has told you what could be interpreted as another. Approving a 30-foot setback when it should be 50 feet is inconsistent with the Growth Management Plan. There are environmental issues and density issues, any one of which could stop this project. It's time for you to take a stand and say, "We believe there were mistakes made in accepting this plan. There are too many questions. We want it to go back to the drawing board." You can vote for what is right for the people. Yes, the developer will probably threaten to sue you. It's a sad commentary that the staff and perhaps some commissioners seem more concerned about developers suing than the public suing. But we've had lawyers look at this, and they believe the developer has no vested right to sue regarding the 68-unit hotel because he bought the property before the land code amendment was changed which allowed the density increase. And also, there was a seven-unit condo on the property. We keep forgetting that. That's a nonconforming structure. Page 168 May 22, 2001 Recently the developer's attorney has said that they're willing to compromise by building a 24-unit condo and that the neighbors have not been willing to negotiate. This is simply not true, and we hope that you realize that 24 units is not a compromise. This is what the developer started with ten months ago. He always wanted to build a condominium building on this land, but with a greater density than the law allows. The code says 16 units an acre. This is less than an acre. Probably it should only have 13 or 14 units. But the developer keeps saying he's going to -- wants to build 24. Why should we accept something illegal like this? If you allow this property to increase density illegally, someone else can come along and buy another half acre on Gulfshore Drive and say I'm going to put 22 units on it. Where does it stop? It's a dangerous precedent. Whether it's condos or hotels, we cannot accept increasing density on Gulfshore Drive. Before you today is the Beachcomber Hotel. Please, Commissioners, the people of Vanderbilt Beach, the people of Collier County ask you to do what is right. Rescind the site plan approval. Take a stand that you cannot allow this kind of density on a fragile barrier beach. Everyone is watching what you do today. Please show them that our government can work. Thank yOU, CHAIRMAN CARTER: Thank you. Next -- (Applause.) CHAIRMAN CARTER: Next speaker, please. MR. OLLIFF: Mr. Chairman, I'm going to -- if you'll hold your applause, we can actually get down to the point where they're making decisions a little quicker for you. Carol Wright is your next speaker followed by Joe Connolly. MS. WRIGHT: Good afternoon, Commissioners. My name is Carol Wright, and I'm president of the Vanderbilt Beach and Bay Page 169 May 22, 2001 Association representing some 700 members. Yes, you are between a rock and a hard place today. You're probably going to get sued either way you go. Last June the previous board of commissioners voted to change the LDCs which allowed this hotel. That was wrong. Today you have the opportunity to correct this. You know it goes against the Growth Management Plan and the comp plan. A mistake was made, and it's time to correct it. It's time to bite the bullet and get things in order. Isn't it better to be sued for something you know is right? You know in your heart you need to rescind your vote for approval of this hotel. Please do that today. CHAIRMAN CARTER: Thank you. (Applause.) MR. OLLIFF: Next speaker is Joe Connolly followed by John Hickey. COMMISSIONER HENNING: Mr. Chairman, can I concur that if we hold the applause down, that we could get through this a lot faster and everybody can get home on time? Thank you. MR. CONNOLLY: Good afternoon. We've got to stop meeting this way. Thank you, David, for giving me a new word: "Perverse use." If there's ever been a perverse use of a piece of property, you saw it today. CHAIRMAN CARTER: I thought you'd like it, Joe. MR. CONNOLLY: We're here again, and we're here not because you intentionally did something wrong, but we're here because -- if you'll excuse my Georgia French -- your planning department totally screwed up in June for recommending a floor area ratio to a tourist residential district. They did so, I think, because it was orchestrated by some land development attorneys who had a client building a hotel in the middle of Gulfshore Drive. And coincidental with that, they had another attorney that Page 170 May 22, 2001 wanted to build 24 condos, still wants to build 24 condos. My answer to that is if he wanted to build 24 condos, why didn't he buy a piece of land that would let him build 24 condos? The water situation, I guess they're going to put an aquatic school there now, about 8/10 of an acre,.84 acres that they're trying to put this thing on. On the compromise thing, we can make no compromise. The law says 16 units per acre. So they sold condos to people and took their homes telling them they were going to build 15- unit condos. You know, and now they say they're going to build a hotel. Some people would say that was illegal, and they're going to have more of those lawsuits because those people are going to sue them as soon as they break ground for a hotel rather than a condo. So we've been through all the points before, and I'm not going to belabor them. And in the essence of time, I'm just asking you to consider one other thing, that Vanderbilt -- Gulfshore Drive is a real, real traffic hazard, particularly during the season. And this is on a very dangerous curve. The road is narrow, even narrower by the bike paths that you've had to put in. And we would like to see Gulfshore Drive incorporated in the Vanderbilt corridor study and a moratorium on any building on Gulfshore Drive be delayed until that study is complete. I say anything; any building, anything other than residential homes. But anything else should be delayed. No more site plans should be approved by the planning department. And if you go along with that, send it registered mail to make sure they get the message this time because they seem to be missing it. So in closing, I ask you to do what you were elected to do: Protect the people of this county, not the developer. It's so obvious this thing is totally wrong that, you know, we just ask Page 171 May 22, 2001 you to do the right thing. Thank you. MR. OLLIFF: Next speaker is John Hickey followed by Ray Howard. MR. HICKEY: My name is John Hickey. I am chairperson of the Community Relations Committee of Beachwalk Residents Association on Vanderbilt Beach Road. I represent 365 owners of condos, villas, and homes in our community. We are extremely upset and concerned over actions taken by county staff and by you, the Board of County Commissioners, which changed the Land Development Code and directly permitted a developer to propose building a structure which was not permitted by the previous code. I am referring to the proposed Beachcomber Hotel. Our concerns are, one, no planning consideration has been given to the traffic increase which would result on Gulfshore Drive, Vanderbilt Beach Road, Vanderbilt Drive, 111th Street, and Bluebill Avenue if the proposed hotel is built. Each of these thoroughfares is in extremis with traffic now. We strongly urge the board to think about such negative impact before approving any changes to any existing code or regulation. As a measure of occupancy for areas such as a coastal high hazard area where this hotel is proposed, density has been ignored or circumvented. This is wrong. Ignoring density is a disservice to all owners and residents, not only in the area of the proposed hotel, but to owners and residents in all of Collier County. Density rules must be preserved. Specifically permitting a business to operate Jet Skis on the Vanderbilt Lagoon is absolute insanity. This body of water is so heavily polluted now that fish cannot live in it. Jet Skiing will considerably worsen this current condition. As a board you should be seeking and promoting measures to clean up the lagoon instead of the opposite. Page 172 May 22, 2001 Four, there was no notice sufficiently in advance of this hotel proposal to provide affected owners to review and respond. There is a process for public input when changes such as this are proposed. Most citizens are not aware of such changes or their implications. Many times these changes are quite technical and easily misunderstood. The county is responsible for taking actions to notify affected owners and neighborhoods of such proposed changes well in advance so those affected can voice their opinions. Neither staff or the board have taken any action to meet this serious need. We would like to see the board review staff recommendations which resulted in the altering of the RT code. The following questions should be answered: A, why were these recommendations made at the time they were made? B, why were these specific sections of the code changed? C, who made these specific change recommendations and why? Beachwalk owners support the agenda and position of the Vanderbilt Beach and Bay Association. We feel strongly the LDC changes should be reversed. Thank you. CHAIRMAN CARTER: Next speaker, please. MR. OLLIFF: Next speaker is Ray Howard. CHAIRMAN CARTER: And while he's coming up here, I need to comment on one thing. It's been mentioned twice. First of all, I'm not for Jet Skis or any of these things in that bay. But that's a separate ordinance, ladies and gentlemen. Anyone that owns a piece of property in the Vanderbilt area along one of those fingers could own and operate a Jet Ski and idle it out to the Gulf of Mexico, fire it up, and go. In this particular project there has never -- well, it may -- someone may have thought it would be there, but no matter what happens to it, the developer has said he would not have a concession for that type of water vehicle. So let's -- in this issue, Page 173 May 22, 2001 please, let's keep that separate. And remember, it's a separate ordinance that governs watercraft, of which that's a classification. Thank you. COMMISSIONER HENNING: If I may say something, too, Commissioner Carter, I don't remember when myself, Commissioner Coletta, Commissioner Fiala heard the LDC amendment last year. We wasn't in -- we were, at best, candidates for county commissioner and not commissioners. CHAIRMAN CARTER: That's correct, sir. COMMISSIONER MAC'KIE: Wasn't it in December? I thought you were here by then. CHAIRMAN CARTER: No. The one in June is the one where the changes were made. And these three new commissioners were candidates at that time, probably candidates at that time, may not have been aware of the process, of which there are four meetings: Two by the planning council, two by the Board of County Commissioners. All of these, I believe, are in the evening and are publicly noted. Whether people pay attention to them, that's an issue that probably -- okay. MR. OLLIFF'. Following Mr. Howard will be Felix Jarczyk. MR. HOWARD: Good afternoon. My name is Ray Howard. I'm president of Howard International Business Consulting Firm, and I live at Vanderbilt, gulf side. We know that nature works best when it's in balance, as does an athletic team, as does government such as our federal separation of powers principle. Stimulated by the Vanderbilt Beach controversy, we examined Collier County's board according to its performance in finding balance between the public interest on one side and special interests on the other: Developers, bankers, contractors, etc. We examined three major issues facing Collier County, sewage, transportation, and water because our view is that the Page 174 May 22, 2001 Vanderbilt issue is only one small part of a huge issue facing Collier County governance. We looked at the principle of concurrency. Now, concurrency provides balance between private and public interests by mandating that new construction not take place until the supporting infrastructure of roads, water, and sewage is in the ground. But this board and its predecessors has allowed construction to occur while the required infrastructure exists only on paper. Compounding this unbalanced approach to governance is a tendency to delay needed construction projects in road and sewage projects. In order to avoid obvious violation of the county's Growth Management Plan, county staffers in 1997 changed the method for computing sewage system need from population to sewer hookups. This underestimated needs to the point that according to the current approach, we have not had any sewage spills, and we're good until the year 2010. If you look at the plan that you adopted, we couldn't have had any sewage spills, that all this stuff has probably been made up by some nasty reporters in the Naples Daily News. The population approach would have shown major sewage problems coming as early as 1999. So when people are asking you to change something you did wrong about Vanderbilt, there are lots of things you're going to have to change that you've done wrong in the past, going back several boards. Now, the most biased and most bizarre county behavior came in using average sewage needs instead of peak needs, which virtually guaranteed sewage spills during the peak season. Now, it's hard to conclude that commissioners are ignorant of simple concepts like peak load and population impact. It's equally hard to believe that commissioners are not familiar with the arithmetic that says you cannot stuff 25 million gallons of sewage into a 9.5-million-gallon system. In the old days, we used Page 175 May 22, 2001 to a call that a blivet (phonetic), I believe. It is more logical to assume that these poor judgments came from a strong bias in favor of development and against the public interest. Now, the proposed ten-story Vanderbilt project played a part in the sewage discussion. Collier County had to go to the Naples City Council to ask for a hookup to relieve its sewage pressure. Within eight days of the hookup approval, commissioners approved the Vanderbilt Beach hotel project. One Naples councilmember reacted so strongly at this, in her view, apparent duplicity saying, quote, unquote, Carter came down here begging for sewer help, and eight days later he approves that hotel on Vanderbilt Beach. If I had known this, I would have voted against his request, unquote. COMMISSIONER HENNING: Sir, that's not true. That Land Development Code -- MR. HOWARD: Just let me finish. I've only got five minutes. CHAIRMAN CARTER: Don't interrupt him. Let him go on, please. MR. HOWARD: Naples' vice-mayor called the project's land code changes a scam, especially the part allowing four floors of parking that don't count. Now, Dr. Carter has said repeatedly he's opposed to the Vanderbilt Beach hotel, yet he was chairman last June when county staffers changed the Land Development Code to allow something which was up to that time wholly illegal. CHAIRMAN CARTER: I have to interrupt you at that point, sir. I was not chairman, and you're making a lot of accusations here. And I'm a pretty patient individual. I'm going to let you finish, but if you can't get your information straight, I just have to discount it. I'm going to tell you that right now. MR. HOWARD: Well, much of this information has been printed in the Naples Daily News, and so far as I know -- Page 176 May 22, 2001 (Several speakers at once.) COMMISSIONER HENNING.' And we have to believe everything we read in the Naples Daily News. CHAIRMAN CARTER: I will not say anything. Please continue, sir. Please take your time. I interrupted you. MR. HOWARD: There's a quote from the Naples Daily News says something is fundamentally wrong with a government that lets something so flawed progress so far, this project. Now, water itself becomes a critical issue. Each year the season seems to save us, but experts warn that each year the aquifers fill up less than -- and less and less. The six-county aquifer stretching from Sarasota has fallen so Iow it needs over 4 1/2 feet to reach the lowest acceptable level according to the Southwest Florida management district. As freshwater pressure declines in the aquifer, saltwater intrudes, contaminating water quality. This has already happened to at least one private well at Vanderbilt Beach. It's difficult to understand how increasing density will help our increasingly dangerous water situation. I want to make one other point. CHAIRMAN CARTER: I took a minute of your time, sir. You may continue. MR. HOWARD: During the May 15th workshop on affordable housing, a discussion about density occurred, and commissioners eulogized density as a good thing which prevents urban sprawl and allows cheaper water and sewer hookups, yet not once did a commissioner mention the overriding principle governing population density. When a county's density clearly exceeds the capacities and compatibilities of its infrastructure, any increase in density for whatever reason is counterproductive. The county is five years behind schedule on roads and sewers. We may never reach -- catch up in water. How can any commissioner with a straight face support Page177 May 22, 2001 increased density, at the same time claim to act in the public interest? We're asking you to reverse your position on Beachcomber because it would be a place to draw a line in the sand and correct many of the past errors made by this board and previous boards. Otherwise, the future is Collier County will run out of water. Increasingly severe sewage overflows will be publicized. Traffic will cease to move. Property values will plummet. And during his future reelection campaign, Dr. Carter will say, "1 saved the county tens of thousands of dollars in legal fees by giving developers everything they wanted." Thank you. MR. OLLIFF: Next speaker is Diane Halas followed by -- CHAIRMAN CARTER: I have no comment. MR. OLLIFF: Armand Pirro. CHAIRMAN CARTER: Yes. Can I have the next speaker, please. MR. OLLIFF: Diane Halas followed by Armand Pirro. MS. HALAS: Hello. My name's Diane Halas. I live at 405 Flamingo, right next to the very nice park that was just put in that we watched be developed, and we like that very much. I wish we could say we were as happy about the Beachcomber. You can obviously tell that we're not. You're talking about global issues today, and one of the things that I wanted to bring up was kind of the perspective of the individual homeowner that lives in that area. We sit in an area where we've watched The Dunes development and have had multiple discussions with staff as it developed. We're only -- the end of our street is only two blocks from where this proposed hotel is going to go in, and so both of these projects affect us very much. The thing that probably has troubled us as individual homeowners the most is what appears to be an incredible double Page 178 May 22, 2001 standard that's applied to homeowners who are doing residential building in the area and commercial developers that are doing large projects. And if I could be specific about that for a minute, just drawing on our own experience, I think maybe it will give you a little bit additional insight about why the individual homeowners are so distressed and why some of the kind of charges that have been made today have been made and why they're floating around. We built our house two years ago in that area on a standard lot that we bought. When our house was surveyed, a very fundamental mistake was made by the surveyor. Most of the lots, apparently, that they've built before have 25-foot-from-the- street offset. This particular neighborhood requires a 30-foot one because there's no sidewalk. Our house was the house that got built 5 feet too close to the road at which point it needed to be torn down. It was up to the stem walls and it needed to be torn down and moved back 5 additional feet. In the process we also found out that because we were building our house a foot taller than the 11-foot requirement, that we needed to have an additional 5 feet in the back of offset. Now, we also have 10 feet of space, of lot size, that goes out beyond our sea wall, but we weren't allowed to count that in our offset. That submerged piece of water (sic} didn't count on a residential dwelling. Our house is also a story and a half high. The second story is half the size of the top story. We were not allowed to average our top and bottom stories in order to get our offset requirements from the size land that we had. When we built our dock, we complied and we built a 20-foot dock, 20 feet out, just like we're supposed to. And you know that there has been some dock litigation in our neighborhood lately also. When our dock was finished, it was an inch and a half too Page179 May 22, 2001 big. That inch and a half was caused by a 3-foot-long fish station that was cantilevered out over one edge. The staff did not have permission to give us a variance for that inch and a half. We were told if we took the fish station down, it would take another six weeks to get our property resurveyed. Now, we already had a six-month delay because we had to tear our house down. So we asked for a variance, and we were given a variance for an inch and a half. This was a lot of frustration in the building of one home. Were we angry about it? Absolutely not. Because what that gave us was a strong sense of reassurance, really, about the way that building codes were applied, that they were applied fairly, that things were looked at, that there was due process for things to go through, and that our neighbors were being protected, and that we would be protected in terms of future development. We finished our house, we moved in, we love the neighborhood, we use the canals, we use the streets when it's not in season and we can get out on our front -- out of our front gate. And we watched, during this period of time, The Dunes be developed in that area, and we had multiple conversations with staff of the county at that period. And those conversations revealed something that was extremely disturbing to us, and that was that the staff seemed to have a lot of ability to negotiate beyond the PUD about little things that were kind of give and take. "Oh, well, you don't want to do this? We'll let you not do that if you trade it for that." And if you look at The Dunes~ what was built there, where it's positioned on the property, how it looks, how it uses space, it's very different from the PUD that was originally approved. We're -- looked at the Beachcomber as it came in and as it was proposed, and this, also, is very distressing. Apparently in their case submerged land does count. They do get to average Page180 May 22, 2001 their stories. And part of the reason that people are as distressed as they are and feel like they do is that it feels like the interest of the developers and the people who want to build commercial properties are paid attention to and addressed far in excess, with much more latitude by staff, than individual residential ones are. We would like a strict standard to be applied to those and not -- that latitude not to exist. Thank you. MR. OLLIFF: Next speaker is Armand Pirro followed by Chuck Brooke. MR. PIRRO: Good afternoon, County Commissioners. My name is Armand Pirro, and I'm a full-time resident living on Gulfshore Drive near the proposed hotel and its Jet Ski rental concession. I have to apologize to the president (sic) that I didn't realize that the Jet Ski was a separate issue. However, since my paper is on that, please let me go on with it. CHAIRMAN CARTER: My pleasure, sir. Go ahead. MR. PIRRO: I'd like to inform the county commissioners of the distance along the waterway from the proposed hotel and Jet Ski concession to the outlet at Wiggins Pass. This distance is about I mile and a quarter. Generally it takes me 20 minutes to go I mile by my boat to reach the pass with the total distance being posted as a manatee and no-wake zone. Jet Ski renters will use approximately 50 minutes to go from the rental to the gulf and return to the rental if they obey -- if they obey the signs, obey the law. Knowing that Jet Ski rental -- Jet Skis are designed for speed and quick turns, I doubt that many renters will be patient enough to wait until they reach the gulf before high speed. May I suggest that the county be very reluctant in granting a Jet Ski rental permit for the sensitive waterway. As a matter of fact, there were four manatee feeding in the waterway just south of Bluebill bridge Saturday afternoon, and Page 181 May 22, 2001 that was the afternoon where the local scouting had their little cot races on the bridge. Their parents had another dimension that day. They were able to go up on the bridge and look at the manatee feeding below them. Quite often the boaters who do not observe the no-wake sign along the waterway are boaters that rent pontoon boats and Jet Ski users. Generally these boaters tend to speed and create heavy wake. We can as res -- what can we as residents say to our elected officials to impress upon them, please do not jeopardize our waterway as is our hopeless uncurable traffic situation that constantly crams our neighborhood from November to May? Many of our neighbors expressed a disagreement with some of the commissioners' positioning stating that in the future we will look closer into projects of this nature; however, for now we will follow the staff's recommendation. I believe that the county staff may have been in error to recommend a change of the code allowing hotel projects to be developed in an area of less than 1 acre of land. I know in the recent past this board has reversed itself on a few occasions to rectify a decision made on incomplete or faulty information. I ask the board to please serve the people with courage and wisdom in disapproving this project and return to the original use of code which served this area well. Even if it leads into possible litigation, the county commissioners will have the people's support in this matter, whatever the cost. I believe it's worth a fight to maintain the quality of Vanderbilt Beach and its environment. I thank you for listening to me this afternoon, and I hope my words will inspire the board to favor the people in this cause in this matter. Thank you. CHAIRMAN CARTER: Thank you, sir. Next speaker, please. MR. OLLIFF: The next speaker is Chuck Brooke followed by Page 182 May 22, 2001 Ben Smith. MR. BROOKE: Hello. My name is Chuck Brooke. I'm a short- time resident of Vanderbilt Beach. I'm also the treasurer of the Save Vanderbilt Beach Association. I urge you, amazingly enough, to rescind the approval that was given to construct the 10-story, 68-unit hotel, and I'd like to give you my reasons why. I think the first one is that there was a mistake made when the LDC was changed in June 16th of the year 2000, and I think the mistake was that the consequences of that change were never looked at. I attended the planning commissioners meeting a couple weeks ago, and in that meeting a further change to the LDC was proposed, and it was called a change to the resort tourist district. Well, I'd like to tell the county staff there's more than resorts on Vanderbilt Beach; there's residences. It's a resident tourist beach. But aside from that little tidbit, the most frightening aspect to me was that there was no clear evidence of where they were going with this change. Now, this was a change that was supposed to take back the LDC -- I forget -- from 6 to 8 to down to 5.5 and 7.5. But those -- that's arithmetic. I mean, there was no depiction of what it would look like. Are we going to have ten stories, ten hotels, a whole string of hotels on Vanderbilt Beach that look just like the one that's being proposed right now? Are we going to have one? What's the impact on traffic? What's the impact on sewers? What's the impact on water usage? None -- nothing of that. So, to me, it was -- the proposal didn't make sense. And, quite frankly, although none of you were there, just looking at the commissioners' faces and judging from some of the questions, they were equally perplexed. I assume that it was the same county staff that presented this I. DC in June of the year 2000. If Page183 May 22, 2001 it was and if it followed the same process that I saw at the Planning Commission, let me tell you, it was a big screw-up because nobody -- or at least I can't tell that anybody looked at the consequences of what the change in the LDC was going to be. If at this point a mistake was made, why should the residents of Vanderbilt Beach pay the price for that? Go back to square one, and please, please get it right this time. Thank you. CHAIRMAN CARTER: Thank you, sir. Next speaker please. MR. OLLIFF: Ben Smith followed by Clay Brooker. MR. SMITH: My name is Ben Smith. I live at 9517 Gulfshore Drive. I've been a resident there for 22 years. I first off want to thank you for allowing me the privilege of speaking to you. Ladies and gentlemen of the council, you are well aware of, quote, the problem. I cannot really add any new pertinent information or facts. However, the system of which you are a vital part, you really are the Harry Truman, if you will. If you can't stand the heat, don't come in the kitchen. And the best of all, the buck stops here. I and all residents here today respectfully request that you right this wrong. Finally, for all of Collier County, until the density problems -- problem is faced and the roads, the water, and the sewer problems are solved and in place, our permitting -- all permitting should be stopped immediately. The cart has been before the horse. Enough is enough. Thank you. CHAIRMAN CARTER: Thank you, sir. Next speaker, please. MR. OLLIFF'. Chairman, the next speaker was Clay Brooker, but apparently there's some order that they've requested, and that's up to you. The next speaker was Clay Brooker. MR. ANDERSON: Mr. Chairman, Commissioners, for the record my name is Bruce Anderson on behalf of the property owner of the Beachcomber property. We have three speakers, Page 184 May 22, 2001 including myself, to address you today. We would request at least half the time that the opponents have had and the opportunity to respond to any new issues that plaintiffs' counsel might raise. I'd like to first have Former Commissioner Tim Hancock address you on some planning issues, and then my associate Clay Brooker will briefly address you with regard to some procedural matters, and then I will come up here to address you on substantive matters. CHAIRMAN CARTER: Just a moment. Mr. Weigel, you heard the request. Where am I here? It's been a five-minute limitation on everybody. MR. WEIGEL.' That's right. This is not a quasi-judicial hearing and things of that nature, but it's your prerogative. Bruce Anderson, his expert, Mr. Brooker, represent, obviously, a party of interest here. And so to the extent they each would have five minutes to speak on behalf of whatever expression they wish to make, just as every other speaker has had five minutes to make any kind of discussion, I see at least 15 minutes. And anything further you wish to do is your prerogative. CHAIRMAN CARTER: All right. And how many speakers do I have after this, Mr. Olliff? MR. OLLIFF: After those three you have two speakers left. CHAIRMAN CARTER: All right. I'll grant you 15 minutes. Let's do a good job, gentlemen. MR. HANCOCK: Good evening, Mr. Chairman, members of the county commission. My name is Tim Hancock. I'm the director of Collier County services for Vanasse & Daylor. I come here today with over 11 years' planning experience in Collier County. I've been a registered AICP since 1994, qualified as a planning expert in city, county, and federal venues, and I'm appearing here today as an expert for the property owner. One issue that was raised here today for the first time is the Page185 May 22, 2001 application of development standards in relation to the approved Beachcomber Hotel project, specifically the language pertaining to setbacks. The Collier County Land Development Code deals with setbacks in several ways. The most direct is found predominantly in single-family residential zoning districts and simply states a minimum distance from the property line. This form of measuring setbacks appears in some fashion in almost every zoning district. In the industrial district, the setbacks are measured as a function of the lot width. The zoning categories for permitted building heights are up to 100 feet. There are different standards of measurement. In RMF-12, RMF-16, and RT zoning districts, the following language is used for both side- and front-yard setbacks, and I quote: One-half of the building height, as measured from each exterior wall or wing of a structure with a minimum -- and this says of 15 feet. That was taken from the RMF-12. It's 30 feet in the RMF-16 and in the RT zoning districts. These three zoning districts permit building heights ranging from 50 to 100 feet and are the only districts in which this language is used. The key to the interpretation of this language is the use of the word "each" in modifying the phrase "exterior wall," as you can see from the exhibit that is on the visualizer. This language was written specifically to contemplate multiple exterior walls or at least a possibility of multiple exterior walls in a tiered fashion. As such, the language equally contemplates differing measurements from each of those exterior walls. The exhibit on the visualizer shows, for example, at a height of 60 feet, a setback to that portion of the exterior wall would be 30. At a height of 100 feet, that measurement moves in to 50. If the intent were different, the word "each" would not have been used in the language, and it simply would have read "One-half of Page 186 May 22, 2001 the building height as measured from the nearest exterior wall." It clearly does not read that way. Of particular relevance today is the purpose for that language even being included in the Land Development Code in the first place. The language appears only in the more intense residential and hotel districts that are predominantly located in the immediate coastal areas. The majority of the properties that have RMF-16 or RT zoning are relatively narrow when compared to the depth of the lots. As such, an overly restrictive setback such as one-half of the total building height could render the parcel undevelopable. For example, many of the parcels in Vanderbilt Beach zoned RT are only 100 feet in width. That would mean that the resulting building on that lot would maximize at 60 feet with a base width of 40 feet if you were to use one-half the building height by itself. A second consideration regarding why this language is in the Land Development Code in its current form is from an architecturally aesthetic standpoint. A nonvarying setback, such as one-half of the building height, that does not grant increased setbacks for tiered portions of a building would result in -- Mr. Weigel used the correct term -- a monument effect, giving buildings in the zoning district the appearance of pillars with little or no relation to each other or to the pedestrian element. And this is something that I think is very, very important. By tiering buildings, allowing lesser setbacks at the lower levels, and requiring greater setbacks at the higher levels, the building relates to the buildings in its surroundings by stepping down, if the buildings are smaller, and to the pedestrian element on the street by stepping down toward where folks are walking, cycling, and whatnot. Mr. Weigel's purported theory that there's no difference between a monument or pillar-type of building and one that is Page187 May 22, 2001 tiered is in direct conflict with the county's architectural design guidelines. The point is further strengthened and, in fact, is a requirement by law in Section 2.8.4.4.3 of the Land Development Code which contains the architectural requirements for commercial buildings such as a hotel. This LDC section requires that new buildings that are more than twice the height of another existing building within 300 feet must provide what the code calls transitional massing elements to provide a transition between the existing building of lower height and the proposed taller building. There's even an iljustration in the Land Development Code to show exactly what is meant by traditional massing. This is from your Land Development Code. When you read the commercial architectural requirements for transitional massing elements in a tall building in conjunction with the language regarding side-yard setbacks being measured from each exterior wall, point and see that the LDC clearly contemplates and provides for the base structure wall and a transitional massing element wall to be separately measured in determining building setbacks. COMMISSIONER HENNING.' Mr. Hancock? MR. HANCOCK: Yes, sir. COMMISSIONER HENNING: Did you design this building? MR. HANCOCK: No, sir, I did not. COMMISSIONER HENNING'- Thank you. MR. ANDERSON: Good afternoon again, Commissioners. For the record, my name is Bruce Anderson. Since we have such a scant amount of time, I'm going to take up most of my associate's time as well as my own. From time to time, I appear before you on behalf of a property owner applying for a change in zoning, but that is not the case today. This hotel is not an upzoning, as has been Page 188 May 22, 2001 erroneously stated in the newspaper on more than one occasion. The zoning does not need to be changed. The property has been zoned for commercial uses for more than 40 years. I would venture a guess that the right to build a hotel on this property predates the arrival on Vanderbilt Beach of those who now complain about it. The zoning on this Beachcomber property permits as a matter of right under the county's own laws the right to build on this property a hotel up to 100 feet in height with 68 rooms. And that is what the Beachcomber property owner has, a site development plan approval, or SDP, and a building permit from the county to construct on this property. The sole question before you today is whether there is a legal basis in the Comprehensive Plan for you to revoke both of these approvals. The answer is a resounding no. I'd like to direct my comments for a moment to some of the items that David raised, Mr. Weigel, when he was talking about this side-yard setback measurement. I would point out to you that the same measurement of side-yard setbacks was used for redevelopment of a tiered bayside building for the La Playa Hotel that was reviewed and approved by the county commission less than a year ago. So it is already a well-established precedent accepted by the Board of County Commissioners in the residential tourist zoning district along Gulfshore Drive that this is the way that side-yard setbacks are measured for tiered buildings. There are other precedents as well, such as the Ramada Inn on Pine Ridge Road and the Sun Harbor and Vista del Sol condominiums. This same method of measurement for side-yard setbacks has been used by the county for many years in Pelican Bay and in other multifamily and commercial structures throughout the county. The county would be in violation of its Page 189 May 22, 2001 own laws if it measured setbacks in any other manner than it has consistently measured and approved in the past. I would also point out to you that Section 2.6.4.4 of your Land Development Code allows this building to be constructed out to the water's edge. And the same size building that we have a building permit for now could still be built on this property if you apply the tortured and new setback interpretation that some would have you apply. We could build the same size building by going out to the water's edge, but then that wouldn't be very neighborly because we would destroy the neighbors' water view. And as far as -- let me -- I want to separate my presentation into three parts. And from time to time, I will refer to this exhibit booklet that I provided to you. COMMISSIONER HENNING: Mr. Anderson, did you expect us to know everything that's in here? MR. ANDERSON: No. I'm going to explain it to you. And if you have a question, you can refer to it specifically. COMMISSIONER HENNING: So this is not an exhibit; it's just a reference book for us? MR. ANDERSON: It is an exhibit in the event that we wind up in court. It is also to aid you in your decision-making. COMMISSIONER HENNING.' Well, I cannot -- I don't have enough time to review it in order to aid me in -- in the decision, so I see it more as something that you want to make reference to, MR. ANDERSON: I do want to make reference to it as well. It's just that if you want more detail than I am giving you in my presentation -- COMMISSIONER HENNING: Maybe Mr. Weigel can help me. MR. WEIGEL: This happens from time to time where there's a voluminous submittal to the Board of County Commissioners at the hearing, and the record can reflect that this -- that this Page190 May 22, 2001 volume -- these volumes were supplied to commissioners, that they have had no ability to review it or read it, have not seen it prior to the meeting -- commissioners will so state on the record - - and that any references to it made during the course of the meeting will be that which appears in the record. So you commissioners may wish to state on the record whether you've not seen the document before. CHAIRMAN CARTER: I'll state at this time that it's my first exposure to it. COMMISSIONER FIALA: Me too. COMMISSIONER MAC'KIE: Me three. COMMISSIONER COLETTA: Same here. COMMISSIONER HENNING: It's the first time I've seen it, and I don't have time to review it. Thank you. MR. ANDERSON: I just note also for the record that all of the items contained in this exhibit booklet, with the exception of 5, 6, and 7, are public records of the county. Now, I'd like to separate my presentation into three parts: The past, the present, and the future. Let's go back in time to February 1953 when the Board of County Commissioners of Collier County approved the plat that includes this property which consists of two separate platted lots. These lots are 50 and 51 of Conner's Vanderbilt Beach Estates, recorded at Plat Book 3, page 18. It's included as Exhibit I in your booklet. Under the county's regulations then and today, a building could be built on each of these two separately platted lots. Now let's move from 1953 to July 2nd, 1957. It was on that day almost 44 years ago that the rezoning of this property occurred, changing the zoning from residential to commercial. A copy of those minutes are included in the booklet as Exhibit 2. Over the years as Collier County zoning regulations have become more sophisticated, there have been various Page 191 May 22, 2001 permutations of commercial zoning on this property. And for at least the last 20 years, the property has been zoned residential tourist, or RT, and has continued to allow 100-foot-high hotels and condominiums to be built on the property as a matter of right under the zoning regulations. Since that time there have been 6- story to 13-story to 15-story condominium buildings constructed in the area surrounding the Beachcomber property. A map identifying those building heights on the surrounding properties and photos of those buildings are included in your exhibit booklet as Exhibits 6 and 7. Some of the same folks who live in these high-rise buildings don't want our client to build a ten-story structure on his property. Some of these same neighbors don't want a hotel in there either, although they are very happy to walk on the beach that was renourished from tourist taxes generated and collected by the hotels along Vanderbilt Beach. Now let's forward to November 1997 -- CHAIRMAN CARTER: Everybody gets a chance to present their case. Please. MR. ANDERSON: Now let's fast forward to November 1997 when the county commission adopted a new Comprehensive Plan that changed the way hotels and motels were to be regulated by the Comprehensive Plan and the Land Development Code. The 1997 comp plan, which became effective in June 1999, eliminated the old references to measuring hotels based on the number of units per acre. And, instead, it identified hotels and motels as nonresidential uses, which according to the terms of that Comprehensive Plan, are not subject to the residential density rating system which uses as a measurement the number of unit -- dwelling units per acre. A copy of the relevant pages of the Comprehensive Plan are included in your booklet as Exhibit Page 192 May 22, 2001 In April and May of 2000, in order to eliminate this inconsistency which now existed with the new Comprehensive Plan in its classification of hotels as a nonresidential use, the county's planning staff came forward with a proposal to amend the LDC references to the limitations of 26 units per acre for hotels and to instead use a measurement of intensity based upon the building size of the hotel, rather than trying to equate a one- bedroom hotel unit to a three-bedroom condominium. To the best of my knowledge, no member of the business or development community played any role whatsoever in originating the proposal to use floor area ratios as a basis to measure the construction of new hotels. And I can assure you most certainly that the owner of the Beachcomber property had nothing to do with those amendments. This same change in the method of measure was also made to the C-4 commercial zoning district, which also allows hotels as a matter of right. A copy of the staff report concerning the changes to the FARs is included in your booklets as Exhibit 3. At the same time these LDC amendments were proposed by staff, a redevelopment proposal for the La Playa Hotel was going forward to a public hearing before the county commission to allow a private beach club in con]unction with a hotel. The La Playa proposal was in compliance with the old 26-unit-per-acre limitation on hotels. But the staff had done no analysis of what kind of floor area ratio had been constructed at other existing resort hotels such as the Ritz-Carlton or The Registry, among others. After they examined the real-life facts on floor area ratios of other resort hotels, staff proposed a different and higher floor area ratio to be applied to resort hotels as contrasted with the more conventional business-traveler-type hotels that are normally built near the interstate, farther away from the coast. Page 193 May 22, 2001 In June 2000, the Land Development Code was amended to read as it does today, which now brings us from the past to the present. A copy of the applicable provisions of the LDC as they were amended almost a year ago are included in your booklet as Exhibit 9. At present the Beachcomber fully complies with all of your ordinances. It doesn't need approval because it already meets your zoning requirements. Copies of the county documents which evidence the approval of the SDP and the building permit are included in your booklet as Exhibit 4. The only question for you today is whether the normally routine administrative approval of a site development plan and a building permit for this property owner's hotel violated or was inconsistent with your Comprehensive Plan. There's been no demonstration that that's the case. Now let's turn to the future. If the county commission is not happy with the way the law reads today, you can amend the Land Development Code to do so. And, in fact, there's a proposal to do just that. But such a change in the regulations can only apply to future projects. It cannot be applied to retroactively take away the vested rights that the Beachcomber property owner has acquired. CHAIRMAN CARTER: Can you wrap that up, please? MR. ANDERSON: Yes, sir. CHAIRMAN CARTER: Thank you. MR. ANDERSON: My client is wondering how he got to be the bad guy in this little drama. All he did was follow the very rules that the county had adopted. At least twice attempts were made by our client to reach out to the neighbors to try to work out a compromise. Each time my client's attempts were rebuffed and rejected. Last November and December our client tried to work with the neighboring residents to amend the Land Page 194 May 22, 2001 Development Code to allow a different floor area ratio or a different type of hotel. And during that time both the county commission and the attorney for the neighboring residents were informed that a 70- to 80-room hotel could be built, under the existing rules, on approximately a I acre lot. We even notified the neighbors' attorneys in writing that if we could not reach a compromise on the Land Development Code amendment, that our client would have no choice but to go forward with a 70- to 80-room hotel on his property. Nobody should have been surprised. Our client did exactly as he said he was going to do in order to protect his investment. Back on April 10th when Commissioner Carter brought this matter up and requested the rest of you to vote to reconsider this, he stated the purpose was to provide an opportunity to sit down with both sides, and Commissioner Carter has worked diligently. And once again our client offered a compromise, and once again that compromise was rejected, and they offered no compromise in return. There's just no pleasing some people. In the near future, you're going to be considering that new requirement. You're going to be considering a requirement to require developers to meet with neighborhood groups, but you didn't have to force the Beachcomber property owner to do that. He tried to do that. CHAIRMAN CARTER: Bruce, I got to have you wrap up. I said 15; you're pretty close. Let's do it. MR. ANDERSON: We're here today to ask you not to do anything. Don't reconsider. Don't revoke a validly issued building permit. Don't reward a stubborn refusal to try to compromise. Don't interfere with what would have been a routine administrative approval. Don't issue or revoke building permits based upon the sound registered on an applause meter. Don't throw out the rule Page 195 May 22, 2001 book and substitute mob rule in its place. You must encourage respect for the county's laws by respecting them yourself. Thank you. CHAIRMAN CARTER: Okay. Next speaker, please. MR. OLLIFF: Two last speakers are Michael J. Volpe followed by William, I believe it's, Eliway (phonetic). Eline. MR. VOLPE: Mr. Chairman, members of the board, my name is Michael Volpe. I appear before you this afternoon as the attorney of record for a group of associations along Gulfshore Drive and its immediate environs who have come together in protest to the situation where we are today. The last time that I was here was in December of 2000, and we were debating at that time an amendment to the Land Development Code as it related to residential resort hotels. Mr. Varnadoe and Mr. Varnadoe's client, Mr. Anderson, were here on behalf of their client because what they sought was a 24-unit residential resort hotel. At the time there was concern expressed by the Board of County Commissioners as it relates to a potential for an abuse as to how we regulate residential resort hotels, and there was also some concern that was expressed as it relates to density or intensity of use, 24 units in what would otherwise be 16 units per acre for condominiums, 26 units for hotels. At the time the board gave direction to your staff to return with some recommendations during the next amendment cycle, which was and is June of this year. In this intervening period of time, what has developed is, among other things, I've had a chance to review the minutes of the meeting of the CCPC back in May of 2000 which was when the debate took place about changing from units per acre to a floor area ratio formula for hotels. At that CCPC meeting, Mr. Varnadoe and his client, Mr. Anderson, were there. And the debate ensued about the change Page 196 May 22, 2001 to floor area ratios. Your staff, at that particular time, cautioned the members of the Planning Commission that the commission itself may be reluctant to go from 26 units an acre, which is what it had been for a very long period of time and the way that this community had developed, to a floor area ratio that would result in a greater intensity or density of use. And at that time the staff suggested that maybe we need to come up with a ratio that would more closely relate to what we have had in the past. And that was the concern that was expressed by your staff. During the debate my esteemed colleagues, Mr. Varnadoe, Mr. Anderson, appeared before the CCPC and suggested that there's a distinction between the type of hotels -- like a Hampton Inn, a Marriott Residence Inn, which are more transient hotels; and the residential resort hotels -- and attempted to discuss what would be a more appropriate floor area ratio for a residential resort hotel. I need to give you this by way of background because, really, what's happened -- at that time the comment was that by the amendment that was ultimately adopted by the CCPC and recommended to the board, Mr. Varnadoe's concern at that time was that we could arrive at what would be an unintended result. And what we have now is an unintended result, where we have a situation where we have, we believe, a property owner who from day one has wanted 24 units of either a residential resort hotel or a 24-unit condominium complex. I don't think anyone has ever wanted in this particular residential tourist district -- and certainly the board didn't intend it or comprehend that this could result in a residential tourist district, that you could end up with a condominium with a residential -- or a hotel, I'm sorry, that would result in an increase of tenfold of what was previously permitted. I think that's the Page197 May 22, 2001 context which brings us here today. You're on the horns of a dilemma. A decision needs to be made. We have, in fact, filed two separate proceedings challenging the actions of the board, both as it relates to the site development plan which was approved, as you all know, and also the Land Development Code that, in fact, changed the formula for determining the intensity or density as relates to residential resort hotels. The challenge is based upon a violation of the Growth Management Act and the county's own Comprehensive Plan. There are a couple of high hazard situations here. One -- I'll be very brief-- in a coastal high hazard area, which is where this is located, your goals, objectives, and your policies tend to limit and restrict the number of units that can be developed in the coastal high hazard area. This amendment that we're discussing, which is the June 2000 amendment, resulted in a tenfold increase in the number of units. In another context and in another forum, we've asked you to look at that Land Development Code. That petition has been filed. We believe it is inconsistent with the Growth Management Plan and with the Comprehensive Plan of the county. The other is a challenge to the site development plan. We've raised a legal challenge. In fact, there are legal arguments which I don't intend -- this is not a quasi-judicial proceeding. I don't want to get into the legal issues, but there are some issues that we've raised with your county attorney which we have not received yet a firm -- a response. One of them has to do with lot area. How do you measure lot area when a portion of the lot is, in fact, submerged land? It's a question of interpretation under the Land Development Code. Mr. Weigel can correct me, but I'm not sure that we have yet had an appropriate interpretation either from Mr. Weigel or from Page198 May 22, 200t staff as it relates to what is meant by lot, and do you include the submerged lands? If you don't include the submerged lands, you've got a parcel of land that is.8 of an acre as opposed to.92. We believe that there will be an opportunity in June to readdress the issue. But in the meantime, in terms of high-risk litigation, I guess Mr. Weigel has addressed that issue and the question of whether there are vested rights. We know that if a person has been issued a building permit and that building permit was issued in error, that that does not result in any monetary liability on the part of the municipality or the issuing authority. I'm not sure that it's any different here. We would ask that the board rescind the action that it had previously taken in approving the site development plan for this particular project, being in violation of the county's own Growth Management Plan and the Florida law. Thank you very much. COMMISSIONER MAC'KIE: I have a question. CHAIRMAN CARTER: And Mr. Weigel needs to comment. And then we'll go to your question, Commissioner. MR. WEIGEL: Okay. Fine. Thank you. In regard to Mr. Volpe mentioning the question they had about part of the parcel, this.92 acre as it purports to be, being under water and how that affects the county, what I can tell you at this point, working rather quickly in communication with the state, is, again, part of the -- part of this land borders Vanderbilt Lagoon. And to the extent that there is -- but also we know that this is platted land, and there is a plat. The plat shows the land. We have the plat before us for our review as part of the site development plan approval. And a question of whether it's in water or not really comes down to, again, call it a private issue, for the most part. And that is the developer, the petitioner, purports that the land is okay Page 199 May 22, 2001 and doesn't have a problem that way. If there is a problem of land ownership, it's potentially between the state claiming part of that land if it is, in fact, under water. And what further complicates this is that if part of the rear of this parcel is in the lagoon, the lagoon is in the -- generally in the ownership and control of the state. But it depends on whether it's an unimproved or improved part of the land adjoining or making up this property. If it's been improved with a sea wall or dock that's been put on there, required some dredging so you'd have an adequate dock to this parcel, that would probably enter into a material determination as to whether -- who owns the lands as opposed to there being a miscalculation of what purports to be.92 acres per the plat description which is of record in the official records of the county. I can't answer the questions when we get down to private and potential state ownership, but I will say that if the state makes a claim and that comes to the attention of the county, the county may have an opportunity at that point to put a halt until it knows that the -- that the application that's previously been approved before it is okay. Secondarily, the developer always perceives, at their own risk, that their title affairs are in order. They claim they are. MR. VOLPE: May I, Mr. Chairman, just briefly? There are actually two issues. The issue that Mr. Weigel has addressed has to do with who actually owns the submerged land. And what I've heard him say is that's a private matter that involves title to real property, and that's not something that he, as your counsel, is advising you that you should be involved in. The issue that I raise is whether in determining a lot for purposes of applying your floor area ratio -- let's assume for the moment that they own it. Just assume for the moment that they own it. Is it like gross acreage? When you're determining density Page 200 May 22, 2001 of the golf course, do you include the golf course? Do you include the preserve? Do you include all of that when you calculate your density or intensity? We're unclear as to whether the definition or interpretation of lot where a portion of the lot is submerged is going to be included in the calculation. If it is not included -- assuming that they own it, if it is not included, then rather than having.92 acres, you would have a.8 acre, plus or minus, which would result in something less than 68. Would it be more than 24? Yes. But would it be an improper application of the floor area ratio under the existing Land Development Code? The answer, in my opinion, is yes. But, again, that's the issue, Mr. Weigel, that -- that we had discussed. And I'm not sure that that was the issue that you provided the board the answer to. MR. WEIGEL: Not yet. I'm prepared to now. My assistant reminds me that we have -- the staff has had a consistent application in the past that -- notwithstanding that there may be water on the property, that there is still a lot line. And so for even purposes of floor area ratio, we don't think that an assertion that part of the property may be under water would appear to be problematical. Again, I didn't mention at the beginning of this item, but remember the discussion we had a few weeks ago about nonconforming legal lots of record? I mean, we've got that whether it's.9,.88, .84, etc., and that's going to be pretty important in the big picture as far as building. If you get to floor area ratio, what I just said was it appears to me that that is not -- is not, I'm told -- a problem if, in fact, the ownership of the lot is the ownership -- is the ownership in the petitioner. COMMISSIONER MAC'KIE: This is not the question that I wanted to pose, but on that particular question, we had a lady come and testify to us that the -- there must be a different rule Page 201 May 22, 2001 for private -- for single-family homes as opposed to commercial properties or RT properties because it didn't work that way for her and her boat dock. COMMISSIONER HENNING: It sounds like she didn't have a - MR. WEIGEL: I can't respond to -- I can't respond to those -- MR. VOLPE: I guess, if I may, Mr. Chairman, simply what I'm suggesting to you, that we -- we've raised some -- some, what we believe, legitimate concerns, not only as relates to the overall issue concerning the approval of the site development plan, but in terms of an interpretation. And in terms of getting a final decision from your counsel's office, I mean, we've asked for that. I'm hearing it for the first time. I'm sure Mr. Weigel has been under some, you know, stress to get answers to the questions that are being asked by -- by all of the people. But there are a couple of issues that have been raised having to do with your side-yard setbacks. It's been consistently applied, according to Mr. Anderson, and I guess probably I --we have requested if there was a -- an interpretation by staff, and the answer to that question -- Mr. Weigel, correct me if I'm wrong -- no, there is no written interpretation from staff. It's the way it's been applied, also, on the question of lot area and the use of submerged lands in calculating the floor area ratios. I'm not sure that that's an issue. So I'm simply suggesting that there's a basis for the board to take a step back from where we are, and let's make sure that the decision that was made was, in fact, the right decision. And, again, Ms. Mac'Kie has raised the question. I counsel my clients to try to stay out of litigation if it's at all possible, but sometimes it's not. And I think the board's acknowledged that you may or may not -- you are already involved in litigation with your property owners, with your constituents, and you may very well be involved -- if you should, in your wisdom, decide to change the Page 202 May 22, 2001 action that was previously taken, you may find yourself as a defendant in a lawsuit brought by the developer. In terms of high risk, you've got the opinion of your counsel. And in terms of a damage claim, Ms. Mac'Kie, I think what Mr. Weigel said was if, in fact, you're proved to be wrong, if you were to change your decision and the court were to rule in favor of Mr. Anderson's clients and Mr. Varnadoe's clients, you're going to have an expenditure of your staff's time. You're going to have an expenditure of outside counsel. But I didn't hear him say that you're going to end up taking away, if you should be wrong in the court of law, whatever vested rights claim these people may have. So-- COMMISSIONER MAC'KIE: I've got -- CHAIRMAN CARTER: Wait a second. I got to get Mr. Coletta's question. I've got one more speaker, and then you can - No. Don't leave, please. My question is for you. COMMISSIONER COLETTA: COMMISSIONER MAC'KIE: MR. VOLPE: Okay. COMMISSIONER MAC'KIE: it's appropriate. Whenever the chairman tells me CHAIRMAN CARTER: Let me -- COMMISSIONER COLETTA: If I may go first, I appreciate it. Mr. Volpe, I'm going to quote Donna Fiala and step outside of the box for just a moment. And I know this is probably totally inappropriate, and I'm going to probably get yelled at for it afterwards, but I'm going to do it anyway. MR. VOLPE: The Jesse Ventura approach to government. COMMISSIONER COLETTA: Right. objects on that stand? MR. VOLPE: No, I don't. COMMISSIONER COLETTA: Okay. Fine. I can remember something back some years ago in Naples where they had a real You don't have any sharp Page 203 May 22, 2001 problem with Hamilton Harbor or something like that, and the citizen was pretty well divided along -- against a big developer, the biggest one, probably, in the whole area. There was funds that were committed on the part of the citizenry. Now, I know your citizens here -- your clients have committed funds to you to be able to stand up against the county. Is there any possibility that they might be able to redirect those funds, if we were to find favorably for them, to assist us in this case? Hey, I'm going to ask. What's wrong with it? COMMISSIONER MAC'KIE: You know what, Commissioner?. That's exactly where I was going to go. So, I mean, the exact -- COMMISSIONER COLETTA: You would have probably said it a lot better. COMMISSIONER MAC'KIE: Well, the way I would say the same thing is this: You know, we need to understand your last comment about that we're not at risk here on a damages suit, because my question for your clients is bottom line here. If we are at risk of paying damages for this developer's lost profits or whatever, Burt Harris, whatever other bundle of rights we may be taking some of their rights away -- if we're at risk of paying damages, then I -- I have to consider -- your -- your people said, "Stand on the side of the people, and do what the people want." Well, the people in this room, it's very clear what they want. The people in the neighborhood, it's very clear what they want. But we represent the whole county, and we're most attentive to that when we're talking about their purse, as you will recollect when you sat in this seat. So I want to do what the people want. I've never seen a case that was better for being decided by a judge because this is too complicated. There are too many shades of gray. But if your clients believe in their case, then I would ask them to hold the county harmless for those damages because the people, the whole community, is not going to benefit Page 204 May 22, 2001 by our standing up to this developer. Your clients are, but -- but the rest of my clients, which include people in the room and everybody else in the county, are going to be at risk for a big dollar amount. I really think that it is appropriate for the neighborhood to take on the damage claim, if there is one, as something that they will pay. I really sincerely mean that. I don't understand why that's viewed as an odd question. Because why should the whole rest of the county pay that damages claim? MR. VOLPE: Let me just try to answer that. First, I think -- let's put it into context. As Mr. Anderson said, we're not talking about rezoning property. We're not talking what we went through in zoning reevaluations. COMMISSIONER MAC'KIE: But they -- MR. VOLPE: We're talking -- we're talking about the approval of a site development plan. COMMISSIONER MAC'KIE: They have a building permit. MR. VOLPE: And that's correct. They do. And what I'm suggesting to you is that only -- and these are not the way, you know, decisions should be made. But since the issue was raised about, well, this could be a big ticket item -- I think someone used those words -- I respectfully disagree at this particular stage in the proceedings. COMMISSIONER MAC'KIE: Well, help me -- MR. VOLPE: This is not an overlay zoning district. the approval or disapproval of a site development plan. This is I believe Mr. Weigel said that this is the type of issue that relates to interpretation of provisions of your Land Development Code, and that should be something that won't require a lot of depositions, etc., etc., etc. So to the extent that we -- if we end up in a litigation posture, this is not litigation which is going to take, or shouldn't take, three years, four years, five years, because the Page 205 May 22, 200t wheels of justice sometimes do move very slowly. What I did hear your counsel say was that this is probably a lawsuit that we could get a result in a fairly short period of time. And depending upon, you know, what financing they've got in place, what they can do to drive up their damages -- I mean, if I were in that situation, I mean, proceed at your own risk. We know if they get the building permit and they build the building and it's determined that the building permit was invalidly issued, they're out of -- there's nothing they're going to get. So, I mean, if they were my clients, I'd say, '~Nhy don't you just wait and see here. Let's not rush to judgment." COMMISSIONER MAC'KIE: I would too, Michael. But here's the thing that I'm -- this is -- and I'm so interested in your point, and I honestly am not debating you on this. I'm really trying to get to the nut -- bottom line here. If-- my concern is if we -- because I like your side of this case better. I want to be on your side in this case, believe me. If I get to choose where my heart is, that's where I feel. But now I'm worried about the public purse. So if we -- if we join your side, if we went with your side, then we certainly are going to delay this by a month or two. They won't be able to start construction, or if they did -- and so then they'll be losing next season, and we'll end up paying them whatever they're going to make in a season. And that's in the millions of dollars, don't you think? MR. VOLPE: No. But, again, that's speculative on my part. That's just my opinion. But let me suggest to you that sometimes we have to be practical. And everything I have seen so far -- and I've been wrong too many times before -- is that nobody wants a 68-unit Holiday Inn on Gulfshore Drive. Not even -- that's not where Mr. Varnadoe's client started out. Mr. Varnadoe's client started out with an upscale, Registry, Ritz, all of our other fine Page 206 May 22, 2001 destination hotels. So I guess the judgment that needs to be made, do they really want a 68-unit Hampton Inn on Gulfshore Drive? And that's -- and that's the only question that -- COMMISSIONER MAC'KIE: How is that relevant to this damage question? MR. VOLPE: Because I think there's a certain risk that -- that everyone runs. So, you know, it may not be. I just put that out. Start out with the basic premise. Nobody -- in my opinion, nobody wants a 68-unit, including Mr. Varnadoe's client. That's contrary to what they've done. I understand that. In terms of the damage claim, what I'm suggesting to you is that, in my opinion -- and millions of dollars in terms of a delay claim, that, in fact, they've been delayed by these proceedings, I think your counsel will have to answer, you know, what would be the measure of damages as a result of the action of the Board of County Commissioners. Mr. Anderson's tried to develop a record, which we've not tried to do here. We figured that this is not the proper venue to try to do that. But I guess Mr. Weigel would have to assess what would be the damage claim. Based upon delay, what would be the measure of damages. COMMISSIONER MAC'KIE: Then, I guess, let's turn to him for that information, because then -- if it's zero, then we don't have anything to worry about. MR. VOLPE: I don't think it's zero, but I also don't think it's $2 million. COMMISSIONER MAC'KIE: number- And then if there is a real CHAIRMAN CARTER: Okay. We've got one more public speaker here. Could I get that in so then we can go? Because you're going to where you want to get to resolution, and I've got one more public speaker. And I can't go to a motion until I have Page 207 May 22, 2001 that on the record. MR. VOLPE: May I just respond? And I'll be very quick, and then I will sit down. I promise you. I do believe, Ms. Mac'Kie, that this is really not necessarily a parochial issue. I don't really think, in my heart of hearts, that it's an issue that has to do with the person that just lives next door, not-in-my-back-yard approach. I mean, I don't think it's exactly that, so I don't think this is just benefiting a certain select group of your constituents. And the other, in terms of indemnification and holding the government harmless, I guess my answer to that is, "That's why we pay taxes, and it's the cost of doing business." And if you feel you're right in your decisions -- which we would hope that you would be -- then we've underwritten the cost of government based upon what we do, you know, in terms of paying our ad valorem taxes. And so you've heard from the citizenry. You're not going to be criticized, I don't believe, for expending tax dollars in defense of what a majority of the people seem to think, in the court of public opinion, is right. COMMISSIONER MAC'KIE: And I don't have a problem going there, but I have to worry about the damages questions, and I hope we can stay -- I hope that we'll be able to call Mr. Volpe back, if that's appropriate, to talk about that if it becomes necessary. CHAIRMAN CARTER: Could I have the last speaker, please. MR. ELINE: My name is William Eline. I live on Gulfshore Drive at the Vanderbilt Yacht and Racquet Club, and I'm a member of the board of directors there. I concur with what our lawyer of our association has put forward, to ask you to reconsider where you are. However, our condominium association and myself personally would like to add one more question that has not been answered. We are in a high-risk area. Our condominium association is required to have Page 208 May 22, 2001 insurance that covers that risk in that area, and I can assure you it's quite high. Each of us as owners who have mortgages must obtain high-risk water insurance for each of our units. Now, as you know, FEMA is already threatening to withdraw insurance from high-risk areas due to density and intensity. And we must tell you that we're deeply concerned that if that would happen, all of us would forfeit our units. We'd be unable to have our mortgages and probably would have to file bankruptcy. In light of everything I've heard here for the last two sessions, I ask you to find a way to get some knowledgeable people to gather all this information together for you in a very clear way so that when you make your final decision, it isn't what one lawyer said, what another lawyer said. It should be what the state says, what the federal government says, and what your own laws say. And I thank you for the time. CHAIRMAN CARTER: Thank you, sir. Do you have questions for counsel? COMMISSIONER MAC'KIE: Just the damages question, and I'm just going to try to say this briefly. I wish that there were no question. I wish that there -- that this hotel were clearly not appropriate and not permitted. If I get to choose -- if it's my pocketbook I'm risking, I will gamble to fight for preventing the construction of this hotel. It is not, however, my pocketbook; it's the public's pocketbook. And so I'm interested in knowing -- you are absolutely a part of the public and an important part and a valuable part and you pay a lot of taxes. But what I'm looking at is to balance the property in -- your pocketbook with the Golden Gate, Immokalee, City of Naples, Marco Island. I mean, I have to look -- I can't look just at the interest of the people in Vanderbilt. I have to look at the countywide interest and balance them. I'm not saying that yours won't win, but it is an appropriate point for evaluation. I'm Page 209 May 22, 2001 asking for some advice on what elements would be included in the potential damages. MR. WEIGEL: Fine. Thank you. I think you know and can see from the presentations by the developer's attorneys and Mr. Volpe that the issues are formidable. The facts can seem significant on either side, who's attempting to posture and make a point. In regard to damages, I told you at the beginning, don't ask me for dollars, but I'm going to come as close as I can. And if a lawsuit's filed by the developer -- incidentally, Bruce indicates that they do have some numbers and figures that they would indicate to you that they may think are significant to tell you about, and you may wish to go back to them too. If a lawsuit were filed -- what you have to look at is what are we attempting to achieve, if the lawsuit is filed against us, or what is attempted to be achieved by the person filing a lawsuit against us. The lawsuit already filed against us by the neighborhood associations is attempting to maintain the status quo claiming that the staff and, therefore, the board has made mistakes in the application of the Growth Management Plan and its Land Development Code. They're looking to achieve that status quo of something less than a 68-unit hotel intensity of use. That's what they're attempting to achieve. Will they get there? I don't know. Of the two lawsuits, that is defending that one -- and I've seen those lawsuits -- as opposed to the one that may be filed against us, I frankly have more comfort in successfully defending what I've already seen than defending what I've not seen based upon what I've told you: We have issues of vested rights here. And in the handouts I've provided you, it specifically talks in the RT district of, as a matter of right, the ability to build hotels. So get back to damages. If the developer sues us, what are Page 210 May 22, 2001 they trying to do? Well, they may not sue us directly for damages to begin with. They'll have damages, yes, some delay and other things like that. But they may be suing us so that they can build that 68-unit hotel. And if-- COMMISSIONER MAC'KIE: David, I'm sorry because I haven't asked my question clearly. MR. WEIGEL: No, you have. I'm going to take you where you want to be in about 2 seconds -- well, 30. They're going to sue us to build what they want to build, and we may lose. And, therefore, the court will say that they can build what they want to build and, "County, you pay them for the harassment and damages and loss of time that you incorrectly imposed upon them." But they can go build that hotel. And where will we be? We will not have achieved what we wanted to achieve, which was not let them build that 68-unit hotel. That puts us in the next phase, then, as we look at damages. COMMISSIONER MAC'KIE: That's my question. MR. WEIGEL: The next phase -- but we've already potentially had significant damages and significant resources expended, maybe, to lose. The next phase is then, we don't give them permits, even though the court has said they have the right to have the permits. And part of the damages that they will have is what the law says they can build and -- differentiated from what we say we'll let you build. And that is a taking, and that's what we'll pay for. Now, Bruce may want to flush some numbers on those bones I've just rattled, but that's what we run into: Two phases of potential risk here. COMMISSIONER MAC'KIE'- I understand the second one. I understand that -- and I've just got to -- because I don't do litigation, so I don't really -- I need your help with this. If we -- if we side with the Vanderbilt property owners, we will get sued by Page 211 May 22, 2001 the developer. The developer will sue us for several things, because lawsuits always have a zillion counts. But one of them will be for the right to build this hotel, and another one will be for damages resulting from delay in building this hotel -- MR. WEIGEL.' I expect so. COMMISSIONER MAC'KIE: -- should they survive -- should they win on their first claim. MR. WEIGEL: They won't be charitable in their complaint, I'm sure. COMMISSIONER MAC'KIE: So in trying to measure what's at risk here, if they win on that lawsuit, then they would, A, get the permit to build the hotel, as you say -- MR. WEIGEL: They'll have a court order telling them they can. COMMISSIONER MAC'KIE: -- and then, B, they would have to prove up what their damages were as a result of the delay, if it cost us six months or a year, whatever it cost us to get there. MR. WEIGEL: Right. Yes. That's correct. COMMISSIONER MAC'KIE: And my question is, included in that damage claim, I assume, would be -- because, I mean, just going back to law school, bundle of sticks, property rights, take some out -- you know, we are going to have taken from them a period of time in which they could have built a hotel. That's a temporary taking for which we will have to pay them. And we'll have to pay them for lost profits. We'll have to pay them for the interest that will accrue. MR. WEIGEL: Yeah. Some of those are obviously very conjectural. They'll be based upon a shootout of experts. COMMISSIONER MAC'KIE: But what I'm asking you for is, are there other things? I mean, those are the things that I think would be included in the damages at risk. It would be their interest clock that's going to run. It would be their lost profits. Page 212 May 22, 2001 It would be a temporary taking. Are there other issues at risk in a lawsuit? MR. WEIGEL: I expect Clay Brooker or Bruce are dying to tell you what they think are additional. But beyond that, then we have the second phase. We have the second phase of -- CHAIRMAN CARTER: If they want to give us a number -- and they may want to. On the other hand, they may not want to because that would put it in public records. And I'm not sure I would take that position if I was in their shoes, but I will invite them to give the number. The other question I have, would this be a jury trial, or would this be in front of a judge? MR. WEIGEL: Well, when we talked about -- initially of the legal issues, we may not have any facts at issue, and so that potentially would be a bench trial, a judge without a jury. But when you get into a discussion of damages, we may -- that may, in fact, be a jury trial. But the first claim -- the first lawsuit may not be the same as -- will not be the same as a second lawsuit. If they prevail in the first one, then they go after us for the amount of a hotel or whatever we'll let them build. Because if this board's made a determination that they can't build what they think they can and the court says our rules allow them to build what they wish to build, then we have to pay for those property rights that they don't get to exercise because we don't want them to. CHAIRMAN CARTER: Commissioner Fiala. COMMISSIONER FIALA: Being very new and not understanding all these zoning laws very well, I ask you this question: The court said they're allowed to build because they have the rights. But doesn't level of service on the road have something to do with whether somebody is allowed to build or not? I don't know what the level of service is on that road. I can Page 213 May 22, 2001 say to you that when I've driven it, it felt like I was driving on Fort Myers Beach. I understand that the road can't be widened. I would think with the 68-room hotel, especially during season, and 68 rooms not only being occupied and each having a car, but also the employees going in and out, should drop that level of service on that road to somewhere around G or H. And I wondered if that is a legal point that we should be considering. We haven't been talking about that. MR. WEIGEL: No, we haven't. MS. STUDENT: For the record, Marjorie Student, assistant county attorney. And there are a couple aspects to the question that you posed, concurrency management system. Number one, we have a process where if there's a problem with levels of service, we just don't go outside of our process and disallow this development here or that one there. We have a process that's established in our adequate public facilities ordinance called the annual inventory and update report that staff brings to the board as to the condition of our facilities, including the transportation facilities. And in that, if there is a problem, ASIs, or areas of significant influence, which are envelopes around certain roadways, would be drawn. At that time the board would have the ability to declare a moratorium, if you will, because of an inadequacy in the level of service. The other issue here is at rezoning time we look at impacts to our roadway system. There's what we call a 5 percent rule. When the zoning maps were drawn and certain uses were permitted, theoretically what was supposed to happen was those impacts were supposed to have been considered already because it's already allowed in your zoning code, and they're supposed to be allowed for already in what the county's doing in terms of roadway improvements. But if -- and the way that's caught is if there is a problem, it'll come up in the annual Page 214 May 22, 2001 inventory and update report in the establishment of the ASIs. And that is the legal mechanism to catch it, not an ad hoc basis. CHAIRMAN CARTER: Thank you, Counsel. Let me just comment on roads. There is a corridor study that's initiated in that area. That road system's a part of that envelope. That will take place in the next 12 months. So that process is already under way, Commissioner. COMMISSIONER FIALA: But it won't be something that we can use in helping to defend this particular issue. CHAIRMAN CARTER: I don't know when it's coming to trial, if it goes to trial. I don't know. COMMISSIONER MAC'KIE: And I guess-- CHAIRMAN CARTER: I can't answer your question. Commissioner Mac'Kie. And I know that Commissioner Henning has a question. COMMISSIONER MAC'KIE: I was just going to say, and I guess the issue of traffic -- I mean, aren't these roads operating at Level of Service C? Who knows that? I mean, whatever -- I'm thinking back to the La Playa. COMMISSIONER FIALA: But I'm talking about in season. COMMISSIONER MAC'KIE: When we did -- when we got the La Playa -- remember that -- we were all on the board together then, weren't we? That was before you guys? CHAIRMAN CARTER: You and I were here. We went through that issue when La Playa was already a hotel. La Playa was just a rework of a facility. COMMISSIONER MAC'KIE: Right. We did have a traffic study that came with it. And what I remembered was Level of Service C, and that even the La Playa changes weren't going to kick it anywhere close to Level of Service D. It was -- I mean, so I don't think we're going to -- we ain't got no stick with traffic. That's my Mississippi way of saying. Page 215 May 22, 2001 COMMISSIONER COLETTA: This is one of the things we've got to be changing the next time around. May I -- COMMISSIONER HENNING: Wait a minute. CHAIRMAN CARTER: I've got to go to -- COMMISSIONER COLETTA: I'm sorry. I didn't mean to jump in front of you, Mr. Henning. Go ahead. COMMISSIONER HENNING: COMMISSIONER COLETTA: first. I'll follow you. COMMISSIONER HENNING: Age before beauty. I think you were recognized I have some site plan questions. I don't know who's here to answer those. I'm talking about landscaping and water retention and the ability to get a fire truck behind this building, since it is a commercial building. CHAIRMAN CARTER: Well, I see John is here. I see Susan's here. MR. DUNNUCK: For the record, John Dunnuck community development environmental services administrator. I'd probably have to defer to Susan because I don't know the technical details on the landscaping proposal. But probably between us and the developer, we can answer those questions. COMMISSIONER HENNING: Thank you. I have a commercial building that I built about seven years ago, and I have a little bit over a half an acre, and I had to put 19 trees on it. And my question is, is there enough green space there to have the native trees that are required in a commercial building? And the parking area's supposed to have a double-wide landscape buffer, and is there enough water or green area for water retention? And I had to put a fire lane in to get into the back of the building because it is a commercial building. MS. MURRAY: For the record, Susan Murray, interim current planning manager. I personally did not review and approve the SDP, but I'm going to assume that the SDP was approved Page 216 May 22, 2001 according to the landscape code, to the fire code, to the engineering water management requirements since it has been approved and has gone through all of those review levels. COMMISSIONER HENNING.' And no offense, Ms. Murray, but I hope that we're not assuming, because looking at this building, I have a real -- a lot of doubt that the heighth of the building fits the setback, as was stated before. And I think that was assuming. I just want to throw all that stuff out there. COMMISSIONER MAC'KIE: Is this -- who would know? Would this be -- CHAIRMAN CARTER: Well, the developer has some plans out there. I've seen the plans. I'm not an expert either. COMMISSIONER MAC'KIE: My question was, is this under residential or commercial standards in the review since it's RT? MS. MURRAY: I believe it would be under commercial standards. COMMISSIONER MAC'KIE: Well, then you've got some important questions. CHAIRMAN CARTER: Mr. Anderson. MR. ANDERSON: I have a letter from the North Naples Fire Control District that they've reviewed this SDP and that it meets their standards, and it has their approval. I'd like to enter it into the record for Commissioner Henning. CHAIRMAN CARTER: Thank you, sir. COMMISSIONER HENNING: I'll frame it, Bruce. Bring it up here. CHAIRMAN CARTER: If it goes to the record, you need to give that to the court reporter. COMMISSIONER HENNING: Now, in the -- I know the standards for that is -- can be under interpretation, too, the fire code. So -- and it depends on who you talk to. So I'm just throwing that one out there too. Page 217 May 22, 2001 CHAIRMAN CARTER: Good point. COMMISSIONER FIALA: As a previous fire commissioner. COMMISSIONER MAC'KIE: It depends on who you talk to? COMMISSIONER HENNING: That's right. CHAIRMAN CARTER: All right. Ladies and gentlemen, I'm going to -- I'm going to -- I'm going to make a motion here that we -- based on everything I've heard here this afternoon -- COMMISSIONER MAC'KIE: Can we get the -- CHAIRMAN CARTER: Pardon me? COMMISSIONER MAC'KIE: Can we get the damages information first? Is it going to affect your decision? I -- CHAIRMAN CARTER: Well, I'm going to -- okay. If they want to give me some numbers, fine. I'm still going to make the motion. COMMISSIONER COLETTA'. I still have some questions to ask. You ask the questions; CHAIRMAN CARTER: Well, okay. then I'll make the motion. COMMISSIONER COLETTA.' Mr. Anderson, would you come up, please? MR. ANDERSON: Yes, sir. COMMISSIONER COLETTA: Let's try one more time with this exercise. We've gotten nowhere with anyone here today. I mean, I've never seen anything that was such a mess as far as anyone making a concession anywheres along the way. It wouldn't take an awful lot to break this one way or the other, as far as I'm concerned. What's the very least that you can accept, one more time? Did they give you any ace up your sleeve that you can play now at the last minute? I'm serious. I'm not kidding. What's the very least that you could accept? MR. ANDERSON: It would only be if the neighbors would accept it and not prolong the litigation; let me give you that Page 218 May 22, 2001 caveat. But we would -- we would stand by the proposal that we made last November and December with regard to residential tourist hotels. But it would only be if that brought an end to the litigation and that you subsequently amended the Land Development Code to reflect what was discussed last November and December. We would not, and I could not counsel my client to, relinquish his building permit until after the appropriate time period had expired after your action was taken. But you hold my feet to the fire, that's my answer. COMMISSIONER COLETTA: Before we go any farther, I'm not through yet. CHAIRMAN CARTER: Okay. But that's an assumption, to clarify that point, that the Land Development Code would be changed favorably to where you could build 24 units. I think that's where we are, aren't we? COMMISSIONER COLETTA: Nothing's really changed on that. MR. ANDERSON: Residential tourist -- COMMISSIONER COLETTA: Is there -- I don't know, can you take the windsock off the roof or something? I'm just trying to find something here we can do. Possibly can you just take a minute and step out in the hall with their attorney and then come back in here and tell us that you've come to some sort of understanding? Could you do that one more time. MR. ANDERSON: I'll be happy to. I would have loved to have been able to do that today. COMMISSIONER MAC'KIE: Will the other side's attorney be willing to do that? MR. VOLPE: Sure. But may I comment? Nobody wants a 68- unit hotel. In terms of what is permissible under existing law, the developer had actually proposed now in -- I think Commissioner Carter was present at that time -- at one of our Page 219 May 22, 2001 meetings a 24-unit condominium. COMMISSIONER MAC'KIE'- Which is what they wanted all along. We know that. MR. VOLPE: That's different now, Ms. Mac'Kie. He actually- - what the -- when they said that we were so deeply entrenched and immovable, the alternative was a 68-unit hotel or a 24-unit condominium. A 24-unit condominium is not permissible under the existing zoning, 16 units an acre for condominiums. This is less than an acre. Even under the best case, it would allow for 15 units. So I couldn't -- I couldn't agree to violate your existing ordinances. That was where we were in terms of compromise. As it relates to the issue where we were back in November -- I'm sorry, December, this was the issue that we were debating, and Mr. Anderson was absolutely correct, holding the gun to our head and threatening, as he's done, that it's either a 24-unit residential hotel or a 68-unit Holiday Inn. COMMISSIONER COLETTA: You see no reason to go out in the hall and have a talk? MR. VOLPE: Well, what I'm saying, Commissioner Coletta, is simply there is a proper forum for that debate to take place. That debate isn't a compromise between myself and Mr. Anderson. The proper area will be for you during the next cycle of the Land Development Code -- which is where you directed your staff to be -- to have that debate. COMMISSIONER MAC'KIE: But what Mr. Anderson just said was that if-- you know, subject to -- he'd hold on to his building permit until it were a done deal. But subject to our -- if we today direct staff to draft an emergency amendment, if that's going to make your clients happy, then I'm going to go there. And, you know, I understand that you don't have the power to agree to that. MR. VOLPE: That's correct. Page 220 May 22, 2001 COMMISSIONER MAC'KIE: And I respect that and appreciate that you didn't agree to it. But today what I'm hearing is that they will -- I'm assuming that they would toll their damage claim pending the adoption of such a Land Development Code. If we were to instruct our staff to immediately begin doing it and your clients would be happy with that, then we've won. MR. VOLPE'. And I wish -- I mean, I'm more than willing to try to reach compromise. I feel that there is always that opportunity. As I said before, we want to counsel our clients to remain out of the courtroom. But, Commissioner Coletta, the problem that I have is what you're asking me to do with Mr. Anderson. And maybe I misunderstood what he said. He said our position would be if you would agree today that you would adopt an amendment to your Land Development Code that would allow a 24-unit residential hotel -- COMMISSIONER MAC'KIE: I think he said condominium building. MR. VOLPE: I think he said res -- Mr. Anderson, did you say residential hotel or condominium? COMMISSIONER HENNING: He said residential hotel. COMMISSIONER MAC'KIE: Come on back up here, Bruce. MR. VOLPE: I thought he did say residential hotel. (Several speakers at once.) CHAIRMAN CARTER: One at a time. One at a time for the recorder, please. Mr. Anderson. MR. ANDERSON: I was just trying to be accommodating, and I mentioned both. COMMISSIONER MAC'KIE: Okay. Bruce, stay at the podium. Would your client -- if we instructed our-- I apologize. I didn't mean to give you an order. I request you to please stay at the podium. Page 221 May 22, 2001 MR. ANDERSON: I'm happy to be here. COMMISSIONER MAC'KIE: Civility month and all. If we were to instruct our staff to draft an LDC amendment to permit a 24- unit condominium on this property -- not a residential hotel, but a 24-unit condo -- they're shaking their head no. MR. WEIGEL: Not a condo. COMMISSIONER COLETTA-' Stay right there. Don't go away. Let's play this game out all the way, and see where we're going to go, and we can always -- I'm sorry. Am I doing something wrong? MR. WEIGEL: I said you're on a roll. We're prepared to enter in any time you want. COMMISSIONER COLETTA: Okay. Let's go -- let's go all the way. If we went with a 16-unit condominium, took the windsock off the roof -- which is a joke -- and you did the path going to the beach, would you be amenable to all those different things? I'm just trying to feel this out to where we are, the bottom line on this whole thing, before we make a final decision. MR. ANDERSON: Okay. I said I would at 24. We can't financially do the 16, sir. But we did offer either a 24-unit residential hotel or a 24-unit condominium. MR. WEIGEL: Remember, residential and commercial. We cannot legally advise you that they can do a 24-unit condominium. That's residential, can't be done. COMMISSIONER MAC'KIE: But we could amend the codes to permit it. We could amend the comp plan. MR. ANDERSON: There's a way to get there. COMMISSIONER MAC'KIE: Of course there's a way to get there. CHAIRMAN CARTER: Not here on this dais. COMMISSIONER MAC'KIE: Not here today, but we can -- MR. VOLPE: That's my point, Commissioner Coletta. Page 222 May 22, 2001 MR. WEIGEL: Residential hotel is far easier. And as Marjorie's about to tell you, we assured Mr. Carter that when we went forward in this Land Development Code cycle, we would make it advertised broad enough that we could bring the kitchen sink, if we needed to, in there. Now, it's broad enough under 2.2 that we could even entertain -- even though the Planning Commission's had one hearing so far -- the residential -- what's that called, that hotel? What's the -- COMMISSIONER COLETTA: The Manatee. MR. WEIGEL: No, not The Manatee. What's the -- MS. STUDENT: Destination. MR. WEIGEL: -- the destination resort hotel, 24-unit-type thing. We could even do that in this Land Development Code cycle going right now. But we can't do condo, and I'm not sure we can ever do condo. It would be very hard to get there. MS. STUDENT: The condo's a problem because it is a residential unit. That density in our comp plan is limited. It's in a coastal area to four residential dwelling units an acre. The hotel is commercial. We don't get to density with the hotel. We have an intensity standard. If we -- and the only reason it's got 16 units in RT is because it went through zoning reevaluation, and that's how it -- the 16 units were grandfathered. If we go to the Department of Community Affairs and say we're upping that by 50 percent, I think we'll probably be before the governor and cabinet again. COMMISSIONER MAC'KIE.' The short answer is the state won't let us because of the hurricane evacuation issues. COMMISSIONER COLETTA: As far as condominiums. COMMISSIONER MAC'KIE: Condos. So the only thing we have on the table as a possibility to discuss is if they -- what number of hotel units in a residential tourist would your client be willing to accept? They said they'll take -- they'd do it for 24. If Page 223 May 22, 2001 they did 24 and that beach walk access? MR. VOLPE: Commissioner Mac'Kie, obviously I represent only a particular group of people. This is deja vu. This is the debate that took place in December, and you directed your staff to bring this matter back before the board at the June cycle. You're going -- you've already, I believe, had one public hearing, at least, before the CCPC on that issue. So it's -- I think it's -- there's another forum to have that debate. I think this discussion is an acknowledgment that there's a problem here that we need to address, not only on the short term, but on the long term. Because as I said to you, looking at the CCPC minutes, Mr. Varnadoe's clients never intended -- in the amendment that took place when you went from 26 units an acre to a floor area ratio that you would end up with a hotel in this area at 68 units. At the time, if you look at the minutes -- Mr. Anderson's given them to you. And tonight after supper take a look, and he discusses the fact that we don't want to jump you from 26 units an acre to 48. That's not what we want to do because you're probably not going to be comfortable with that. COMMISSIONER MAC'KIE: And I -- I understand that this may well -- I'm sorry, to the attorneys I'm about to comment on. But accepting for a moment that this may well be a shell game and that they did this all as a game to get us to the point of doing 24 residential tourist units, you know, even if that's the case, if that satisfies people and we don't put the county at risk for a big damage number, why don't we go there? MR. VOLPE: I guess, Ms. Mac'Kie, my answer to that is -- and maybe I've missed something -- you will have the opportunity during the June cycle to address this issue. My clients and others throughout the community will have an opportunity to provide you with their input as to whether, in this instance, it is or is not appropriate to have residential resort hotels in RT Page 224 May 22, 2001 zoning districts with a floor area ratio that would allow for 24 or more units. I don't think we ought to try to decide that today. I know you're not suggesting that, Commissioner Coletta. I'd love to see the compromise. The issue is, this is an approval or disapproval of a site development plan. And any time you go into litigation there are risks that you run, but I think -- my sense is that nobody wants a 68-unit residential resort hotel. So this litigation may never get on anyone's docket because we may actually have this debate again. And I look forward to seeing you in June when we go through the amendment cycle. And maybe if Mr. Anderson gets what he wants at that time -- and we can't prejudge that -- maybe you won't have your damage claim, Ms. Mac'Kie. COMMISSIONER MAC'KIE: And the only -- the only issue, then -- the only thing that I have on the bargaining -- on the table today to bargain with is if your guys would hold off on the lawsuit while we -- pending this June LDC cycle and if Mr. Anderson's client would hold off on a lawsuit pending the June -- or at least toll their damages pending the June LDC cycle, then we can safely have that discussion at the proper time without risking the damages that might otherwise be accruing. That's the gamble I'm making if I don't at least try to get everybody to freeze where they are, freeze your positions today, pending LDC, the June cycle. Would your guys be willing to do that if the other side is? MR. VOLPE: We're in the cycle already so -- I think today is May 22nd. So, I mean, it's -- I mean, even if we were to proceed full tilt, I think the earliest I'd be able to get a hearing with one of our circuit court judges would be three months. COMMISSIONER MAC'KIE: Right. So I'm not really asking anything from you, and I know that. Who I'm really asking something from is -- MR. VOLPE: I wanted to be polite to let people know that I Page 225 May 22, 2001 wasn't giving up anything. COMMISSIONER MAC'KIE: I know. I just -- so, Bruce -- COMMISSIONER COLETTA: Come on, Bruce, make us proud. COMMISSIONER MAC'KIE: -- toll your damages pending the LDC cycle. MR. ANDERSON: I don't have authorization to do that. They may be willing to. But you must know, since our interest costs alone are a thousand dollars a day, this last delay we had cost $30,000 trying to be a good neighbor and work with people. Commissioner Coletta, I think you've seen -- I think you have seen today that we have tried to reach out and work with people, and this is typical of the reaction we've always gotten. COMMISSIONER COLETTA: I think you're all on an equal footing, to be honest with you. MR. ANDERSON: And this was not, Commissioner Mac'Kie, a shell game by any stretch. They wouldn't have spent $400,000 on architect's fees and another $200,000 on the impact fees. CHAIRMAN CARTER: Another way I would phrase the commission to you, Mr. Anderson -- and you might want to talk to your client -- is if we did freeze this until the cycle is complete, would you halt construction at this point -- continue to hold on construction until that is decided, if the LDC works to everyone's satisfaction, that you will make a judgment shot accordingly and so will the Board of County Commissioners? Do you want to talk to your client, or do you want me to -- COMMISSIONER HENNING: I don't think he heard you, Mr. Chairman. MR. ANDERSON: I did. I don't know what to say. I feel like I'm the only one up here offering anything. I mean, the neighbors get to stand there and shake their heads, no, no, no, no. CHAIRMAN CARTER: Well, I'm just asking the question. I've heard the hand -- I've heard (sic) the head shakes up here, and I -- Page 226 May 22, 2001 and I appreciate what Commissioner Coletta tried do, and I've been going through this for several weeks. I'm saying before I'm going to force this to a decision on this board, I'm asking one more time if people would freeze and not build until the June cycle is complete, and that's what I need an answer to. MR. ANDERSON: Can you give me a five-minute break? CHAIRMAN CARTER: Yes, sir. We'll take five. MR. VOLPE: Commissioner Carter, may I -- Commissioner Coletta -- excuse me just one second. Commissioner Coletta, you asked a question, and I don't think I answered the question because maybe I didn't understand it. I don't believe my clients would agree to indemnify the county, which is what Commissioner Mac'Kie -- but if what you're asking is for yours truly and Counsel Rynders to join in the litigation should it be brought, I will represent to you that we will appear and ask to intervene in the action and shoulder the lion's share of the defense of that lawsuit, which is exactly what happened, as I recall, in Sabal Bay where it actually became a litigation. And that was also involved in the Key Island litigation. So, I mean, if what you're asking -- we can offer our services -- COMMISSIONER COLETTA: But not your money. MR. VOLPE: -- but not indem -- well, no. I mean, someone's going to pay for our services, so it would be less time and effort on your -- COMMISSIONER COLETTA: What I was saying earlier was that money has been committed to this, and I just wanted it to be redirected. I think I got an honest answer on that before. I appreciate very much your efforts. CHAIRMAN CARTER: have their conversation. (A break was held.) CHAIRMAN CARTER: Okay. Let's take five and let counsel We're back in session. You're live. If Page 227 May 22, 2001 everybody would sit down, please. Legal counsel and client went to the hall to have discussions. MR. ANDERSON: For the record, my name is Bruce Anderson on behalf of the oppressed private property owner. And, once again, my client has negotiated with himself, and we have the following offer to make to our good neighbors: One -- first of all, I would like to ask, are they willing to compromise and accept a 24-unit, extended-stay, high-end, boutique hotel on this property? COMMISSIONER MAC'KIE: If you are, please raise your hand. If you are not, please raise your hand. (People speaking from the audience.) COMMISSIONER MAC'KIE: It's a hotel. thought they were going to do in December. It's the thing that we It's the condo hotel. It's the big-room hotel, and it'll be ten stories high; true or false? MR. ANDERSON: Probably, yeah. COMMISSIONER MAC'KIE: So I think you've got your answer, from the people in the room anyway. They're not willing. MR. ANDERSON: Well, I don't know if I should go any farther with our offer of compromise, then, if out of the opening box, once again, it was -- CHAIRMAN CARTER: Well, I suppose -- and with all due respect of the board, I think the Board of County Commissioners would like to hear everything that you have to say. COMMISSIONER COLETTA: It doesn't commit you to anything at a point in time you say it does. MR. ANDERSON: Excuse me, sir? COMMISSIONER COLETTA: It wouldn't commit you, Bruce, you know, until you reach that point in time you've agreed to actually do it. But what was the rest of the compromise? MR. ANDERSON: To reach an agreement with them, you mean? Page 228 May 22, 2001 COMMISSIONER COLETTA: Suppose they did. Suppose they agreed with you. What was the rest of the compromise? Let's hear it. MR. ANDERSON: Okay. Number one, you would need to understand that we would have to start over with our design. And we would want to have -- if you amended the Land Development Code to accommodate the extended-stay, boutique hotel, we would need to have -- in order to keep our damages and everything minimized here, we would want to have a 30-day review period by the county staff for issuance of the SDP and the building permit for the new hotel. We have already paid site development plan and building permit review fees for the one hotel, and we would want to have them waived for the resubmittal. There would be -- we would agree not to commence any vertical, meaning upward, construction until after the Land Development Code hearings were completed at the end of June. We would retain the right to go forward with infrastructure and pilings, things that are flat on the ground. The Land Development Code amendment for the high-end, boutique hotel, we estimate that we would need a floor area ratio of 1.68. We would also stipulate, as I have repeatedly stated, there will not be any Jet Ski rentals. We would want to keep our current SDP and building permit intact as an insurance policy in case the other things fall through or in case the neighbors filed another suit. MR. WEIGEL: Bruce, would you repeat that last one? Keep what intact? MR. ANDERSON: Keep our current SDP and building permit approval in place so that in the event either the Land Development Code wasn't amended to allow the boutique hotel Page 229 May 22, 2001 or if the neighbors, you know, filed a suit challenging the boutique hotel, too, that we might just go forward -- I don't know what the decision might be. We'll cross that bridge at the time. But I wouldn't want to waive the right to go forward with what we had originally got approved, if we were just embroiling in another lawsuit. COMMISSIONER COLETTA: Let me ask you this, Bruce: If we went along with something like you proposed, then the neighbors would be coming out and taking you on, rather than the county, is that correct, or no? They'd still be taking the county on? MR. OLLIFF: Yeah. COMMISSIONER COLETTA.' Okay. Now, what was the condition for them, they would have to fulfill before you'd be able to go on? You said something about they had to agree. Do they have to agree to drop their lawsuit? Is that what it was? MR. ANDERSON: No. If -- if we got this Land Development Code amendment approved at the end of June that would allow us to do a 24-unit, extended-stay, boutique hotel and they didn't sue over that too, then we would go forward with that, and we could leave alone and not act upon the SDP and the building permit that we have in hand today. I just don't know how it could be any more reasonable. CHAIRMAN CARTER: Would you also include, as you had in the past, the improvement of the beach access? MR. ANDERSON: Yes. COMMISSIONER COLETTA: Okay. If I may, I'd like to have Mike Volpe come up here for just a moment. Mike, where are we going with this? MR. VOLPE: I've heard Mr. Anderson's proposal. My response -- I'll try to be as succinct as possible -- your own counsel told you that if this were an amendment to your zoning Page 230 May 22, 2001 ordinance to increase the number of dwelling units from 16 to 24 in the coastal high hazard area, that would be prohibited, and you would find yourself-- COMMISSIONER COLETTA.' He's shaking his head no. COMMISSIONER MAC'KIE.' But this is -- MR. WEIGEL: We're not talking condominium; we're still talking hotel, intensity not density. MR. VOLPE: And I do understand that. But I'm saying to you if this were a condominium, if this were a true -- COMMISSIONER MAC'KIE: But it's not. MR. VOLPE: Okay. If this were -- bear with me just a moment. If it were, it would be prohibited under your zoning ordinances. Now we're talking about an extended-stay, high-end, boutique hotel of 24 units where the period of occupancy would be extended stay, not when you and your family comes for two or three days. The concept that's being proposed is people would come with their families, flying in on their Gulfstream jets, and staying for two or three or four months. This would be their home away from home. And I guess the concerns that we have in the coastal high hazard area are the same when you're talking about that type of use. Mr. Anderson had proposed, as well, that this whole area be -- come under a redevelopment. Mr. Weigel had the discussion that under a redevelopment concept, that you could try to get 24 condominiums; didn't think that that could be done. I cannot, since I represent only a select group -- Mr. Anderson is asking us. The direct answer is -- he's saying waive your rights to participate in the public forum that will take place in June and not -- agree in advance that we will not speak in opposition to the deliberations of the -- of the commission as it relates to an amendment to the Land Development Code, which was the debate that took place last November. I just can't do that. I Page 231 May 22, 2001 don't have the legal authority. I don't have the authority from my clients to do that. You have an issue today which is, do we approve or disapprove a site development plan for the 68-unit hotel? COMMISSIONER COLETTA: MR. VOLPE: I'm sorry? COMMISSIONER COLETTA'- We could continue it too. We could also continue it. MR. VOLPE: Certainly that's an option. But I guess my point simply is that we're debating something which, in my opinion, is not -- it's inappropriate for me, in my legal capacity, to try to help you prejudge whether you will in June, going through the amendment cycle, approve a floor area ratio of 1.68 when you don't have the input from your staff, you don't have the input from the public to make that type of a decision. So I can't be a part, even if I had the legal authority to do that, of a compromise. I think we want to see, you know, a compromise here, but I can't prejudge it at this particular point in time. So I guess the simple answer to your question is, what we offer is that we'll go through the process with you, and we'll give you our opinion in June, as we did in November -- or December. And you, then, in your wisdom, will weigh those decisions and decide whether you're going to -- COMMISSIONER COLETTA: Let me ask you, while we're going through that process, will you hold off on spending your clients' money to continue the lawsuit until that point in time we reach that end? MR. VOLPE: I think we could at this particular point in time. I mean, what we're talking about is 30 days. But that doesn't answer the question of, are you going to approve or disapprove the site development plan? I'm concerned -- and Mr. Weigel will advise you -- I mean, if we were to agree to what Mr. Anderson is saying, I'd be really concerned about any claim of vested rights Page 232 May 22, 2001 when they start doing some contract zoning here of some kind. I mean, I just don't know. But, in any case, the answer is -- if you're asking would we defer from actually doing anything further if you're going to get -- make a decision today on the site development plan, the answer is yes. COMMISSIONER HENNING: Mr. Volpe, do you recognize the fact that we're going from a 68-unit to a 24-unit hotel, one being a longer stay and the other one would be -- you know, whether a week or whatever, is going to be less impact on the infrastructure, less impact on the beaches, so on and so forth? MR. VOLPE: Yes, I do. And, Commissioner Henning, the comment is your code enforcement unit is now pursuing a violation against The Manatee, which is a residential resort hotel, which has been improperly operated because it's being used as a condominium. So the concerns that were expressed in December were, how do we enforce -- Mr. Varnadoe will tell you all of those safeguards are in place, so this will be used -- and I've been corrected on several occasions. This is a hotel. We will know that the county will be assured of the fact that it is going to be a hotel and not a condominium, because as soon as you start talking about, you know, it's -- I think, you know, if it walks like a duck, quacks like a duck -- I think that's one of Mr. Varnadoe's expressions -- I mean, it is. So, I mean, is this a condominium, or is it an extended residential resort? So you need to -- in that process you need to make sure those safeguards -- if that's where the wisdom is to approve extended, long term, you need to get that safeguard in place, which we haven't done yet. COMMISSIONER COLETTA: You already answered that question. You said code enforcement is acting on this, so there's Page 233 May 22, 2001 the safeguard. MR. VOLPE'- That's correct. CHAIRMAN CARTER: Thank you. David Weigel, any comments to us before I make the motion? MR. WEIGEL: Yes, I do. And that is that understanding both Mr. Anderson and Mr. Volpe, I think everything Mr. Anderson said appears doable. For clarification I want to make sure that as the board considers the reconsideration issue before them today -- and I'll talk about a continuance in a second -- what we're looking at here, I think Bruce has told us, is that they will hold off on vertical construction until June 20th, the end of our Land Development Code process, and that -- that -- but if things go afoul or a lawsuit is filed, they reserve the ability to build a 68- unit, ten-story hotel. Now, it's going to be ten story whatever, because that just isn't part of the equation before us. But in any event, the question that you have today is if you leave in place -- that is don't reconsider the staff approval of the SDP -- then Bruce is telling you, "We won't use that if we get to where we want to go with the 24-unit, extended-stay hotel." They'll have the ability to use that, but they won't use it -- he's promising you -- if they get the ability to build the alternative structure. Again, I ask you to weigh the risks of litigation in your potential overturning of the prior staff approval of using a standard that the code had, as well as the fact that the lawsuits filed by the neighborhood associations, if successful, would also achieve the prohibition of the construction of the 68-unit hotel. So if they're confident enough of their own litigation -- not that we want to be a party to it, but we are. But if they're confident enough of that, then I think they will win on that anyway, I guess, if -- you know, they felt strong enough to file it, anyway. But if you continue further, Mr. Anderson has indicated that Page 234 May 22, 2001 you've got interest damages of a thousand dollars a day. But if he's promised to hold the site development plan in abeyance anyhow, we increase our risk of damages by denying him or continuing, even at this point too. Just another thought. CHAIRMAN CARTER: I'm going to make a motion. The board can make a decision on this motion, and we can go forward with whatever the board's -- will of the board, as it always is. I'm going to make a motion, because of what I've listened to today -- and even though there's been a lot of other discussion that takes it out in the probability or possibility for the future Land Development Code revisions, I don't know what those will end up and look like. I'm going to move that, because I think this may be a strained or perverse application, that we deny and -- the building permit as currently issued on that property and go at risk to defend that decision. And as Land Development Code goes through its system, if something works out differently and all parties get an agreement, fine. But I'm going to make that motion today to stop this, to withdraw that building permit, because I -- and I also, within that, recognize there's some existing properties that are -- that would need to be grandfathered. I can't change that. But I can make a statement that I'm willing to challenge what's gone on in the past, to set up a new direction, to look at these in a different perspective in the future. And that will be my motion, that we -- we're going to make a decision one way or another, board, to change the direction, or we're going to go forward as we've done in the past. COMMISSIONER FIALA: I'll second that. MR. WEIGEL: Mr. Chairman. CHAIRMAN CARTER: I have a second by Commissioner Fiala. Page 235 May 22, 2001 MR. WEIGEL: And, Mr. Chairman, I would say for the record, I believe you are stating that your motion is to rescind the site development plan and revoke the building permit. CHAIRMAN CARTER: Yes. COMMISSIONER MAC'KIE: I have a comment on the motion - CHAIRMAN CARTER: Oh, yes, please do. COMMISSIONER MAC'KIE: -- that, again, this is one of those times where I wish I had the Ross Perot -- where everybody has a computer at home, and they, you know, call in and say what they think because it's their money we're deciding to put at risk. And I don't want to say anything on the record that might hurt the county in any lawsuit that will likely be filed by the property owners, so I won't. But the question here is, are we willing to spend -- are we willing to risk spending a couple million dollars, maybe more, in order to undo a decision that we don't like? And there may well be legal grounds for undoing it, and that'll be up for the lawyers. But the risk is, are we willing to pay to prevent the construction of something that we don't want to see there? And so far, of the people whom I have been able to ask who live not in the neighborhood, they have said yes. They're willing to pay. So I'm going to support the motion. CHAIRMAN CARTER: Commissioner Coletta? Commissioner Henning? COMMISSIONER HENNING: Just to piggyback on Commissioner Mac'Kie's comments, I have been out in the community in my district and other districts. And I think that you're correct, Commissioner Mac'Kie, that the citizens in the -- Collier County don't want to see this type of density or intensity in Collier County. COMMISSIONER MAC'KIE: Bad enough to get out their checkbooks, if that's the way it ends up. Page 236 May 22, 2001 COMMISSIONER HENNING: I will also support the motion. CHAIRMAN CARTER: Commissioner Coletta. COMMISSIONER COLETTA: I think we exhausted about every possibility we could ever come up with on this. CHAIRMAN CARTER: All right. Therefore, I'm going to call the question. All in favor signify by saying aye. (Unanimous response.) Opposed by the same sign. CHAIRMAN CARTER: (No response.) CHAIRMAN CARTER: (Applause.) Motion carries 5-0. (A discussion was held off the record.) Item #1 lCl ALEX BROWN REGARDING CAT TRANSIT SYSTEM SHELTERS COMMISSIONER MAC'KIE: Sshh. We have one agenda item left? Is that all? CHAIRMAN CARTER: I have to go to public comment. Please, ladies and gentlemen, I do have a board meeting to complete, please. Board of County Commissioners is still in session. Please exit quietly and go celebrate in the parking lot. We need to go to public comment. That's 11-C. MR. OLLIFF: Mr. Chairman, you have two people registered. The first is Alex Brown followed by Bob Krasowski. COMMISSIONER MAC'KIE: And, Mr. Manager, is that our final item for the day or are there -- besides communications? MR. OLLIFF: Yes, ma'am. COMMISSIONER MAC'KIE: Thank you. MR. BROWN: Good afternoon. CHAIRMAN CARTER: Good afternoon. Page 237 May 22, 2001 MR. BROWN: I'm sorry about the comment I made when I was here about two weeks ago. I commented about the -- supposedly, the shelters offered by Lee County when they canceled the 2,000 stops. I heard that Monday afternoon before the meeting when I came, and consequently, I assumed it was correct. And it's true what they say when one assumes. I was caught on that. It was definitely wrong. I assumed it to be true, and it was not. But also on that same note, the -- on the other hand, your transit representative also assumed it to be true and was quick to say that it was a -- the glare was a hazard and everything else -- was quick to write it off by saying there was a traffic hazard because of the glare, and it was a magnet for graffiti and so forth on that. But there's still the problem -- there's so many people out here. There's no bench or anything for the stops. I see you have, like, downstairs when you walk outside, you go to the right and you walk out the front door, there's a bench right there, at least something for somebody and -- to sit down on anyway. But there is nothing along anywhere, even the main hub or any stops or anywhere. There's no seating or anything for the elderly or disabled or anybody to sit down. No shelter or anything from the rain. I don't assume anything -- that's coming up. But I did find out from dealing with Lee County to track this down about that, that there is -- Lamar Advertising does help with their shelters up there with -- they combined the schools' bus shelters and the Lee Tran. They use the same shelters, and they're provided by Lamar Advertising. And they just use a portion of that wherever the county -- they do it throughout Florida from Tallahassee to Jacksonville, Miami. And they provide the shelters for free just for whatever the zoning will allow, the advertisement, minimal advertising. Page 238 May 22, 2001 So I implore you to get some kind of negotiations with Lamar and see what would be acceptable, where they could use them. And if not, maybe since they do so many with the manufacturer -- because they do so many all over the state of Florida plus the other states, that maybe being involved with them, that maybe the manufacturer would be able to possibly get the discount on it instead of going with this bureaucratic and aristocratic style that they want to have custom design and custom built and everything in one solid thing for the entire CAT system, the Collier Area Transit. I'm sure that maybe Marco Island might want to have a coral rock with some kind of, you know, palm frond design. And maybe Naples might want to have a terrazzo floor with -- maybe a fisher might want to have some kind of -- as an artist, maybe design something for maybe tile and palm fronds. And maybe Pelican Bay might want to have pilings with ceramic pelicans on theirs. And maybe Immokalee maybe want to have a design with, I don't know, sombreros or something, you know, where each individual neighborhood may want to have their own different design for it. Maybe Lely High School maybe want to have a Trojan design for their -- or horses or something out in their neighborhood. And, you know, each neighborhood may want to have their own individual design. Maybe they ought to be consulted, or maybe it ought to be made as a drive so they can have their own design if it need be. But, in general, along 41 or where the main traffic use is, that maybe this -- maybe taken seriously -- that this ad advertising agency ought to be taken serious that they install this at no cost to the taxpayer or the county, because in '99 when the county did install these -- I'm sure that you guys may not know this -- but for the plain blanks they used out in Golden Gate, they paid $3,600 for each one. Now, what's going to be the Page 239 May 22, 2001 cost to the taxpayer for these designs that are going to be dreamed up by these designers that are going to be custom built by these custom -- you know, and then built, what is going to be the cost for each one of these if just the plain blanks were going to be $3,600 each? CHAIRMAN CARTER: We appreciate your comments, and we thank you for that. MR. BROWN: And the other thing, I'm sorry, was the schedule. The schedule here -- I've got to take a bus. The bus stops running at six. As you can see, it's now well after quarter after six, and there's no bus running. CHAIRMAN CARTER: Well, that's -- MR. BROWN: And the stores are open till nine o'clock. The hospital doesn't close until nine o'clock. And there's no buses running on Sunday. And also a lot of bus drivers are still making less than the school bus drivers are, and they would like at least equal pay as that. COMMISSIONER COLETTA: Where do you live, sir? MR. BROWN: I live on Rattlesnake Hammock Road. COMMISSIONER COLETTA: I'll give you a ride home. Item #1 lC2 BOB KRASOWSKI REGARDING UPCOMING SOLID WASTE WORKSHOP MR. OLLIFF: The next speaker is Bob Krasowski. MR. KRASOWSKI: What a day. I was here earlier. I went out and did errands. I took care of some business. I come back and sat around for a while, and you guys are still here. COMMISSIONER COLETTA: You want a ride home, too, Bob? MR. KRASOWSKI: No. I got a car. Thanks, though. I'll remember that the next time. I feel like taking you guys out for Page 240 May 22, 2001 dinner and a drink. COMMISSIONER COLETTA: Can't do it. CHAIRMAN CARTER: Against policy, but go ahead. COMMISSIONER MAC'KIE: Not only that, but we sure couldn't go together. MR. KRASOWSKI: Go over to Schlotzsky's and have a sandwich, like the school board. Just kidding. The one thing I'd like to -- I'm not going to try to finish up what I didn't complete earlier. I'll have an opportunity at some time to do that. But the one thing I did want to touch base with you on is the upcoming workshop. This is the last meeting before the wonderful workshop we're going to have. Okay. And what I initially envisioned was sort of like an academic exercise where Dr. Connett, who has no commercial interest, would come and speak with you but not to have an unbalanced presentation; also representatives from Malcolm Pirnie, chemists that they felt good about would be here; and then the solid waste department. Well, this whole operation seems to have grown somewhat, and under the auspices of having additional interests, like land filling and incineration and paralysis and other components of the waste stream, other people are being arranged to be seated at the table during the workshop. And I'd just like to call to your attention that some of these people will be academians (sic), free of commercial interest, while others will be people who have special specific commercial interests in the process they might be representing. And although you won't get a sales pitch, their presentation of information might have that commercial bias as opposed to that academic bias, and we all know the difference between the two. So I wanted a heads up for that. And other than that, you know, have a nice evening. CHAIRMAN CARTER: Thank you, Bob. I've always found Page 241 May 22, 2001 that academics could hold their own in those kind of debates. MR. KRASOWSKI: Oh, I did request of Mr. Olliff that Dr. Connett be allowed to make his presentation first so that maybe all of that will kind of fall into -- under the umbrella as he demonstrates it. But, of course, that's Mr. Olliff's call. COMMISSIONER HENNING: Are you trying to lead us, Bob? MR. KRASOWSKI: No, never. I'm trying to follow with some suggestions. I mean, you guys are in charge; right? COMMISSIONER HENNING: Sometimes we wonder. MR. KRASOWSKI: Well, you know, good seeing you again. COMMISSIONER COLETTA: Bob's spent so much time here, a lot of people think he's employed by the county. MR. KRASOWSKI: You wish. Then you could control my presentations, and I'd lose my job if I got up here and talked like this. Mr. Olliff would be telling me what to do. Okay. Well, good night. CHAIRMAN CARTER: Okay. Thanks, Bob. Item #14A COUNTY MANAGER RE INDEX TO AGENDA APPEARING IN THE NAPLES DAILY NEWS EFFECTIVE SUNDAY, MAY 20, 2001; NEW AGENDA FORMAT TO BE IN PLACE FOR NEXT BCC MEETING Staff communications. MR. OLLIFF: Two very brief things. Just a copy of the agenda index that did appear in the paper. Just wanted the board to know that we followed up on that. The agenda indexes are now showing up in the paper. This was run on -- two days ago, so it's prior to the agenda. It's run on the weekend. The second issue is just a reminder that next board meeting when we get together we will be using the new agenda format that was presented last week, so people like Alex, who has Page 242 May 22, 2001 waited all day long to be able to speak to the commission, will actually be first thing up after your proclamations, presentations, and service awards. Just so when you get your new agenda, you'll see the new format. Don't be surprised. It's the one that we've tried to tell you was coming. And hopefully this'Il work a little better for us. Item #14B COUNTY ATTORNEY REGARDING CLARIFICATION OF AGENDA ITEM #10J CHAIRMAN CARTER: Okay. Very good. Mr. Weigel. MR. WEIGEL: Thank you. The first thing I just want to say, I sure appreciate working with all the commissioners on difficult issues, not just today's, but the many difficult issues. But lately, particularly, Commissioner Carter in mediation, working with and talking with Mr. Coletta at the conference we went to and talking to the other commissioners. I appreciate you calling me and working on these things, and we're happy to -- to follow up on these -- on the aftereffects from the decisions -- the difficult decisions that are made. And, secondly, in regard to the last item we just heard, 10-J, the reconsideration, is there any interest for the board following this discussion for staff, Tom's and mine, to continue forwards with that 24-unit, extended hotel -- extended-term hotel in this Land Development Code cycle? Because if you do wish for us to do that, we will have to work very quickly to bring it in. That's notwithstanding that we didn't reach an agreement tonight, as far as that goes. CHAIRMAN CARTER: Well, what happens if we don't have that in there? I mean, is there a way not to -- I guess we can't Page 243 May 22, 2001 allow -- disallow anything like that totally. MR. WEIGEL: No, we can't. But I guess if it's in there -- if it's not in there, it can't be done. But if it's in there, goes forward, then if Mr. Anderson and his clients decide that, "Well, although we don't have something to fall back on," meaning the 68-unit hotel -- they could still go forward on that if they wanted to. So if you'd like, we'll keep that in the mix. MR. OLLIFF.' I think if nothing else, I think the board has clearly indicated that they want to have a discussion regarding a change from the floor area ratio, and that will lead us into that whole discussion about units as well. CHAIRMAN CARTER: I know this is a moving process. I have not even seen the revised wording. I know where we started, but it's certainly different. So let's take it forward. We'll have those discussions, two meetings: One has been done with the planning council, and we're just holding a space on the agenda. The next one we'll have some wordsmithing and a statement there for people to look at. And then the two sessions that we have, we have a chance to revisit it and make a final decision. MR. WEIGEL: Thank you very much. CHAIRMAN CARTER: Commissioner Coletta. Item #15A COMMISSIONER COLETTA REGARDING TRULY NOLEN SITUATION COMMISSIONER COLETTA-' Thank you. On a lighter note, the next meeting we have I'd like to bring up the Truly Nolen situation to see if maybe we might be able to reach some resolution. There's quite a few people out in the community that are totally unhappy with the direction that's taking place with Page 244 May 22, 200'! that situation. CHAIRMAN CARTER: Board's request. Give it to Mr. Olliff. It'll be under Board of County Commissioners. COMMISSIONER COLETTA: Thank you. COMMISSIONER FIALA: Nothing. Item #15B COMMISSIONER HENNING REGARDING EXTENDED STAY HOTELS CHAIRMAN CARTER: Commissioner Henning. COMMISSIONER HENNING: On the extended-stay hotel, I know they have that in Orlando, so I'm not sure how that county - - is that Orange County? CHAIRMAN CARTER: Yes. COMMISSIONER HENNING: -- how they deal with that as far as in the ordinance, so I just thought I'd throw that out. Also last night, after filling up my gas tank and driving almost to Immokalee to Big Cypress Middle School -- no, it's Corkscrew Middle School. COMMISSIONER COLETTA: COMMISSIONER HENNING: Right. The Rural Lands Committee had their meeting last night. And I think this board is going to be very proud of the work that they're doing on their committee, and I believe it's going to be well accepted through the community of the big picture of Collier County. CHAIRMAN CARTER: That's great. And I'm glad you were there, and I thank you for that comment. Commissioner Mac'Kie. COMMISSIONER MAC'KIE: Just because it's my mission in life to embarrass my 13-year-old daughter who was just in the room, I would like to announce to you-all that she has been Page 245 May 22~ 2001 accepted as a member of the Inaugural Philharmonic Youth Orchestra. She plays the violin. (Applause.) COMMISSIONER MAC'KIE: We're very proud. CHAIRMAN CARTER: My only closing comment is my under- two-year-old granddaughter was watching the proceedings and having her dinner. And she turned to mama and daddy and said, "Blah, blah, blah, blah, blah." And with that, I will adjourn. ***** 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 EAC MEMBER ALEXANDRA SANTORO TO BE REIMBURSED FOR EXPENSES NOT TO EXCEED $125.00 TO ATTEND THE 2001 FLORIDA LAND TRUST CONFERENCE Item #16A2 RESOLUTION 2001-184 SUPPORTING AREA CODE NINE-FOUR. ONE (941) RELIEF ALTERNATIVE NUMBER FOUR, PROVIDED FOR CONSIDERATION BY THE FLORIDA PUBLIC SERVICE COMMISSION Item #16A3 COLLIER COUNTY TOURIST DEVELOPMENT COUNCIL SPECIAL EVENTS APPLICATION Page 246 May 22, 2001 Item #16A4 STAFF TO ADVERTISE A PUBLIC HEARING FOR THE PURPOSES OF REZONING THE PROPERTY KNOWN AS THE NEAPOLITAN PARK PUD FROM "PUD" TO "A' RURAL AGRICULTURAL Item #16A5 - Continued to June 12, 2001 RECONSIDERATION OF THE AIRPORT PLAZA PUD WITHIN SIX MONTHS Item #16A6 RESOLUTION 2001-185 REQUIRING RECONSIDERATION OF THE LANDS END PRESERVE PUD WITHIN SIX MONTHS Item #16A7 FINAL ACCEPTANCE OF WATER UTILITY FACILITIES FOR ENCORE SENIOR LIVING AND RELEASE OF THE UTILITIES PERFORMANCE SECURITY TO THE PROJECT ENGINEER OR THE DEVELOPER'S AGENT Item #16A8 RECORDING THE FINAL PLAT OF "MEDITERRA PARCEL 111" AND ACCEPTANCE OF THE STANDARD FORM CONSTRUCTION AND MAINTENANCE AGREEMENT AND PERFORMANCE SECURITY AMOUNT WITH STIPULATIONS Item #16A9 Page 247 May 22, 2001 RECORDING THE FINAL PLAT OF "GOLF VILLAS AT TIBURON" AND ACCEPTANCE OF THE STANDARD FORM CONSTRUCTION AND MAINTENANCE AGREEMENT AND PERFORMANCE SECURITY AMOUNT WITH STIPULATIONS Item #16A10 RECORDING THE FINAL PLAT OF "BANYAN WOODS" AND ACCEPTANCE OF THE STANDARD FORM CONSTRUCTION AND MAINTENANCE AGREEMENT AND PERFORMANCE SECURITY AMOUNT WITH STIPULATIONS Item #16A11 RECORDING THE FINAL PLAT OF "PELICAN MARSH UNIT TWENTY SIX" WITH ACCEPTANCE OF THE STANDARD FORM CONSTRUCTION AND MAINTENANCE AGREEMENT AND PERFORMANCE SECURITY AMOUNT Item #16A12 RECORDING THE FINAL PLAT OF "MEDITERRA UNIT TWO" AND ACCEPTANCE OF THE STANDARD FORM CONSTRUCTION AND MAINTENANCE AGREEMENT AND PERFORMANCE SECURITY AMOUNT WITH STIPULATIONS Item #16A13 RECORDING THE FINAL PLAT OF "BRYNWOOD PRESERVE" AND ACCEPTANCE OF THE STANDARD FORM CONSTRUCTION AND MAINTENANCE AGREEMENT AND PERFORMANCE SECURITY AMOUNT WITH STIPULATIONS Page 248 May 22, 2001 Item #16A14- Moved to Item #8A3 Item #16A15 RESOLUTION 2001-186 FOR A RECALCULATION OF THE MAXIMUM HOME SALES PRICE FOR COLLIER COUNTY FOR ALL FLORIDA HOUSING FINANCE CORPORATION (FHFC) PROGRAMS Item #16B1 BUDGET AMENDMENT TO PROVIDE FUNDS TO THE GOLDEN GATE MUNICIPAL SERVICES TAXING UNIT (MSTU) BEAUTIFICATION FUND Item #16B2 AMENDMENT NO. I TO ANNUAL CONTRACT FOR ROADWAY CONTRACTORS, 98-2905, TO ALLOW ADDITIONAL ONE YEAR RENEWAL Item #16B3 WORK ORDER NO. WD-075 WITH D. N. HIGGINS, INC., TO INSTALL A STORM WATER TREATMENT DEVICE ON BAYSHORE DRIVE, PROJECT NO. 31110 IN THE AMOUNT OF $63,723 Item #16B4 COMMITTEE RANKING OF FIRMS FOR CONTRACT NEGOTIATIONS FOR PROFESSIONAL CONSULTING SERVICES FOR THE NORTH-SOUTH AND VANDERBILT AREA PLANNING Page 249 May 22, 2001 CORRIDOR STUDIES (RFP #01-3227) AS CONTAINED IN THE EXECUTIVE SUMMARY Item #16B5 COLLIER AREA TRANSIT (CAT) ROUTE CHANGES TO THE RED AND BLUE ROUTES EFFECTIVE JUNE 1~ 2001 Item #16B6 RESOLUTION 2001-187 TO ENTER INTO JOINT PROJECT AGREEMENT AND MEMORANDUM OF UNDERSTANDING WITH THE FLORIDA DEPARTMENT OF TRANSPORTATION FOR PHASE II OF THE DESIGN OF THE COMPUTERIZED TRAFFIC CONTROL SYSTEM IN THE AMOUNT OF $750~000 Item #16C1 AGREEMENT TO UPDATE THE MAPS OF THE WELL FIELD PROTECTION ZONES OF THE COUNTY'S GROUND WATER PROTECTION ORDINANCE IN THE AMOUNT OF $70~000 Item #16C2 AWARD BID NO. 01-3208 "PURCHASE OF ONE (1) VACUUM EXCAVATION SYSTEM" TO VACMASTERS, DIVISION OF BARONE, INC.~ IN THE AMOUNT OF $90,742 Item #16C3 FORMAL COMPETITION WAIVED FOR FUNDING REGARDING A PRELIMINARY SYSTEM DESIGN (PSD) FOR A NEW OPERATIONS Page 250 May 22, 2001 AND CAPITAL SPECIAL ASSESSMENT SOFTWARE SYSTEM TO BE NEGOTIATED WITH PERCONTI DATA SYSTEMS, INC. Item #16C4 SURPLUS SEALED BID #SO1-3225, FOR ECONOMY BALER, AWARDED TO SOLID WASTE AND RECOVERY SYSTEMS, INC IN THE AMOUNT OF $355 Item #16C5 CONTRACT TO CONSTRUCT 20-INCH RADIO ROAD RECLAIMED WATER MAIN EXTENSION TO SUN COAST UNDERGROUND UTILITY CONSTRUCTION CORPORATION, BID 01-3224, PROJECT 74036 IN THE AMOUNT OF $214,823.15 Item #16C6 PAYMENT TO GULF BAY INC., FOR $7,945 FOR LANDSCAPING COSTS TO COLLIER COUNTY SEWER DISTRICT PUMP STATION #316.00 AT FIDDLER'S CREEK~ PROJECT NO. 73051 Item #16C7 AWARD BID #01-3233 FOR THE PURCHASE OF TREES TO SATISFY IN-KIND REQUIREMENT OF A FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION CONSENT ORDER TO SYLVAN NURSERY FARMS, INC IN THE AMOUNT OF $42,500 Item #16C8 Page 251 May 22, 2001 FUNDING, WAIVER OF FORMAL COMPETITION, AND AUTHORITY TO EXECUTE CONTRACTS FOR CAPACITY IMPROVEMENTS AT THE NORTH COUNTY WATER RECLAMATION FACILITY, PROJECT 73077 Item #16C9 FUNDING, WAIVER OF FORMAL COMPETITION, AND AUTHORITY TO EXECUTE PURCHASE CONTRACTS FOR CAPACITY IMPROVEMENTS AT THE SOUTH COUNTY WATER RECLAMATION FACILITY, PROJECT 73128 AS OUTLINED IN THE EXECUTIVE SUMMARY Item #16D1 BUDGET AMENDMENT FOR MAX HASSE COMMUNITY CENTER PROJECT TO RE-BUDGET FUNDS THAT WERE NOT CARRIED FORWARD INTO THE 00/01 BUDGET Item #16D2 APPLICATION TO THE FLORIDA DEPARTMENT OF STATE REQUESTING A HISTORIC PRESERVATION GRANT OF $153,000 TO ASSIST WITH THE RESTORATION OF ROBERTS RANCH PIONEER MUSEUM IN IMMOKALEE Item #16D3 MEDICAID WAIVER REVISED CONTINUATION CONTRACT BETWEEN COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS AND THE AREA AGENCY OF AGING FOR Page 252 May 22, 2001 SOUTHWEST FLORIDA INC., D/B/A SENIOR SOLUTIONS OF SOUTHWEST FLORIDA Item #16D4 BID 01-3231 FOR THE CONSTRUCTION OF SUGDEN REGIONAL PARK PATHWAY TO BONNESS, INC IN THE AMOUNT OF $112,737.11 Item #16D5 RESOLUTION 2001-188 PROVIDING FOR AN INCREASE IN THE FEE CHARGED BY THE COLLIER COUNTY HEALTH DEPARTMENT FOR ISSUANCE OF DEATH CERTIFICATES Item #16D6 RESOLUTION 2001-189 APPOINTING RAYMOND HOLLAND, BILL HARTTER, PAT COOKSON, JOHN YONKOSKY, MARY LOU WEISS, JIM MANSBERGER, DUANE WHEELER, TONI HORNE AND JO SELVIA AS OFFICERS TO THE COLLIER COUNTY AGRICULTURE FAIR AND EXPOSITION INC BOARD OF DIRECTORS Item #16D7 BID 01-3230 TO U.S. TENNIS AND FITNESS INC., IN THE AMOUNT OF $68,935.00 FOR RESURFACE OF TENNIS AND BASKETBALL COURTS AT MAX HASSE COMMUNITY PARK, EAST NAPLES COMMUNITY PARK, PELICAN BAY AND AARON LUTZ PARKS Item #16D8 Page 253 May 22, 2001 EXTENSION OF AN AGREEMENT WITH THE SOUTHEASTERN LIBRARY NETWORK (SOLINET) Item #16D9 AUTHORIZE THE COLLIER COUNTY SCHOOL BOARD TO PREPARE THE FOOD FOR THE SUMMER FOOD SERVICE GRANT PROGRAM WITH 100% REIMBURSEMENT FROM THE STATE Item #16D10 APPLICATION FOR A GRANT TO COASTAL IMPACT ASSISTANCE PROGRAM TO CLEAN-UP THE GAS SPILL AT CAXAMBAS AND ALSO AN APPLICATION TO THE BOATER IMPROVEMENT PROGRAM TO REFURBISH THE DOCK, BENCHES AND PICNIC SHELTERS AT BAYVIEW PARK Item #16D11 BUDGET AMENDMENT FOR THE INSTALLATION OF ADDITIONAL GATES AT SUGDEN REGIONAL PARK~ PROJECT NO. 80081 Item #16E1 AGREEMENT WITH THE GOLDEN GATE FIRE CONTROL AND RESCUE DISTRICT, WHICH PROVIDES FOR A MAXIMUM EXPENDITURE OF $12,500 FROM THE GAC LAND TRUST FOR THE PURCHASE OF MISCELLANEOUS C.E.R.T. PROGRAM EQUIPMENT Item #16E2 Page 254 May 22, 2001 AGREEMENT TO PROVIDE FOR A MAXIMUM EXPENDITURE OF $50,000 FROM THE GAC LAND TRUST TO INITIATE THE DESIGN OF A FIRE CONTROL AND RESCUE STATION TO BE LOCATED WITHIN GOLDEN GATE ESTATES Item #16E3 TERMINATE CONTRACT #99-2937 FOR UNIFORM SERVICES WITH UNIFIRST CORP. AND AWARD CONTRACT TO G 8, K SERVICES Item #16E4 - DELETED Item #16E5 BUDGET AMENDMENT FOR EMERGENCY REPAIRS TO THE MARCO ISLAND TAX COLLECTOR BUILDING Item #16F1 RESOLUTION 2001-190 FOR A LEASE AGREEMENT BETWEEN COLLIER COUNTY AND OMNIPOINT HOLDINGS, INC., FOR PLACEMENT OF A COMMUNICATIONS TOWER UPON COUNTY- OWNED PROPERTY Item #16G1 BUDGET AMENDMENT #01-296; #01-311 Item #16J1 SATISFACTIONS OF LIEN FOR SERVICES OF THE PUBLIC DEFENDER FOR CASE NOS 93-442-CFA; 95-5828-MMA AND 98- Page 255 664-CFA May 22, 2001 Item #16J2 MISCELLANEOUS ITEMS - 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 256 BOARD OF COUNTY COMMISSIONERS MISCELLANEOUS CORRESPONDENCE May 22, 2001 FOR BOARD ACTION: Satisfaction of Lien: NEED MOTION authorizing the Chairman to sign Satisfaction of Lien for Services of the Public Defender for Case Nos 93-442-CFA; 95-5828-MMA; 98- 664- CFA RECOMMEND APPROVAL. MISCELLANEOUS ITEMS TO FILE FOR RECORD WITH ACTION AS DIREcTv:rJ: Ao Clerk of Courts: Submitted for public record, pursuant to Florida Statutes, Chapter 136.06(1), the disbursements for the Board of County Commissioners for the period: 1) April 11, 2001 through April 17, 2001 2) April 18, 2001 through April 24, 2001 Bo 3) April 25, 2001 through May 01, 2001 Districts: 1) Cedar Hammock Community Development District - Financial Statement and Report 09-30-00 and Annual Financial Report and Management Letter 2) Minutes: South Florida Water Management District - Minutes of Big Cypress Basin Board February 28, 2001 and April 6, 2001, 1) Environmental Advisory Council - Agenda for April 4, 2001 and Minutes of March 7, 2001 2) Developmental Services Advisory Committee - Agenda for April 4, 2001 and Minutes of March 7, 2001 3) Beach Advisory Committee - Notice for February 6, 2001 4) Collier County Metropolitan Planning Organization= Minutea of May 9, 2000 and Agenda for April 18, 2001 H:Data/Format 5) Collier County Hispanic Afros Advisory Board - Agenda for April 26,2001 -- r, , NDA' " " AGE ..._,I'r£~, No._: lt,,~., i ' z~ I AY 2 2 pg. I ~ 6) Forest Lakes Roadway and Drainage M. S. T. U. Advisory Committee -Minutes of March 16, 2001 7) Collier County Productivity Committee - Notice of April 18, 2001 and Minutes of March 21, 2001 and Agenda for April 18, 2001 8) Collier County Contractors' Licensing Board - Agenda for April 18, 2001 9) Parks and Recreation Advisory Board - Agenda for April 18, 2001and Minutes of March 21, 2001 10) Emergency Medical Services Advisory Council - Agenda for April 25, 2001 and Minutes of March 28, 2001 11) Bayshore MSTU Advisory Committee -Notice of May 1,2001 and May 2, 2001 12) Florida Metropolitan Planning Organization Advisory Council - Minutes of April 26, 2001 13) Rural Lands Area Assessment Oversight Committee - Notice of April 23, 2001, April 25, 2001, May 9, 2001 and Agenda for April 23, 2001, April 25, 2001 and May 21, 2001 and Minutes of March 26, 2001 14) Collier County Metropolitan Planning Organization Pathway Advisory Committee- Notice of April 20, 2001 H:Data/Format HAY 2 2 2001 May 22, 2001 Item #16K1 EXTENSION OF KPMG CONTRACT FOR EXTERNAL AUDIT SERVICES WITH CHANGE ORDER (ADD) IN THE AMOUNT OF $20,000 Item #16L1 SETTLEMENT AGREEMENT PROVIDING FOR PAYMENT BY ELHANON AND SANDRA COMBS (PROPERTY OWNERS) TO COLLIER COUNTY IN A CODE ENFORCEMENT APPEAL CASE ENTITLED ELHANON AND SANDRA COMBS V. BOARD OF COUNTY COMMISSIONERS, COLLIER COUNTY, FLORIDA, CASE NO. 00-3497-CA, IN THE AMOUNT OF $3,500 TO BE DEPOSITED INTO THE "CODE ENFORCEMENT BOARD FINES" REVENUE ACCOUNT MSTD GENERAL FUND 111 Item #17A RESOLUTION 2001-191 REGARDING PETITION VA-2001-AR-400, DON KIRBY REPRESENTING HANDY FOOD STORES, INC., REQUESTING A 45-FOOT VARIANCE FROM THE REQUIRED 50- FOOT FRONT YARD SETBACK FOR STRUCTURES IN AN AUTOMOBILE SERVICE STATION TO 5 FEET ALONG NEW MARKET ROAD AND A 25-FOOT VARIANCE FROM THE REQUIRED 50-FOOT FRONT YARD SETBACK TO 25 FEET ALONG GLADES STREET TO ALLOW CONSTRUCTION OF A CANOPY OVER AN EXISTING FUEL PUMP FOR A PROPERTY LOCATED AT THE NORTHEAST CORNER OF THE INTERSECTION OF LAKE TRAFFORD ROAD AND NORTH 19TM STREET Page 257 May 22, 2001 Item #17B RESOLUTION 2001-192 REGARDING PETITION VA-2001-AR-398, DON KIRBY REPRESENTING HANDY FOOD STORES, INC., REQUESTING A 45-FOOT VARIANCE FROM THE REQUIRED 50- FOOT FRONT YARD SETBACK FOR STRUCTURES IN AN AUTOMOBILE SERVICE STATION TO 5 FEET ALONG LAKE TRAFFORD ROAD AND A 23-FOOT VARIANCE FROM THE REQUIRED 50-FOOT FRONT YARD SETBACK TO 27 FEET ALONG NORTH 19TM STREET TO ALLOW CONSTRUCTION OF A CANOPY OVER AN EXISTING FUEL PUMP FOR A PROPERTY LOCATED AT THE NORTHEAST CORNER OF THE INTERSECTION OF LAKE TRAFFORD ROAD AND NORTH 19TM STREET Item #17C RESOLUTION 2001-193 REGARDING PETITION V-2000-39, MILES L. SCOFIELD, REQUESTING A 5-FOOT VARIANCE FROM THE REQUIRED 15-FOOT EAST SIDE YARD SETBACK FOR DOCK FACILITIES TO 10 FEET FOR PROPERTY LOCATED AT 11 PELICAN STREET EAST, ISLES OF CAPRI UNIT I Page 258 May 22, 2001 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 6:26 p.m. BOARD OF COUNTY COMMISSIONERS BOARD OF ZONING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL DIS~R ITS CONTROL J-~~~ Ph.D., ~-H~M--~ ATTEST: ~'...$tgnature 0nly. /DWIGHTiE. BROCK, CLERK These minutes approved by the Board on presented ~// or as corrected , as TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY BARBARA A. DONOVAN, RMR, CRR; AND BARBARA DRESCHER, NOTARY PUBLIC Page 259