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BCC Minutes 06/20/2001 S (LDC Amendments)June 20, 2001 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, June 20, 2001 LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special districts as have been created according to law and having conducted business herein, met on this date at 5:11 p.m. in SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: VICE-CHAIRMAN: ABSENT: ALSO PRESENT: James D. Carter, Ph.D. Pamela S. Mac'Kie James Coletta Tom Henning Donna Fiala Tom Olliff, County Manager David C. Weigel, County Attorney Page 1 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA Wednesday, June 20, 2001 5:05 p.m. NOTICE: ALL PERSONS WISHING TO SPEAK ON ANY AGENDA ITEM MUST REGISTER PRIOR TO SPEAKING. SPEAKERS MUST REGISTER WITH THE COUNTY MANAGER PRIOR TO THE PRESENTATION OF THE AGENDA ITEM TO BE ADDRESSED. COLLIER COUNTY ORDINANCE NO. 99-22 REQUIRES THAT ALL LOBBYISTS SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT. REQUESTS TO ADDRESS THE BOARD ON SUBJECTS WHICH ARE NOT ON THIS AGENDA MUST BE SUBMITTED IN WRITING WITH EXPLANATION TO THE COUNTY MANAGER AT LEAST 13 DAYS PRIOR TO THE DATE OF THE MEETING AND WILL BE HEARD UNDER "PUBLIC PETITIONS". ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. ALL REGISTERED PUBLIC SPEAKERS WILL BE LIMITED TO FIVE (5) MINUTES UNLESS PERMISSION FOR ADDITIONAL TIME IS GRANTED BY THE CHAIRMAN. IF YOU ARE A PERSON WITH A DISABILITY WHO NEEDS ANY ACCOMMODATION IN ORDER TO PARTICIPATE IN THIS PROCEEDING, YOU ARE ENTITLED, AT NO COST TO YOU, TO THE PROVISION OF CERTAIN ASSISTANCE. PLEASE CONTACT THE COLLIER COUNTY FACILITIES MANAGEMENT DEPARTMENT LOCATED AT 3301 EAST TAMIAMI TRAIL, NAPLES, FLORIDA, 34112, (941) 7744380; ASSISTED LISTENING DEVICES FOR THE HEARING IMPAIRED ARE AVAILABLE IN THE COUNTY COMMISSIONERS' OFFICE. 1. PLEDGE OF ALLEGIANCE 2. AN ORDINANCE AMENDING ORDINANCE NUMBER 91-102, AS AMENDED, THE COLLIER COUNTY LAND DEVELOPMENT CODE, WHICH INCLUDES THE ! June 20, 2001 COMPREHENSIVE ZONING REGULATIONS FOR THE UNINCORPORATED AREA OF COLLIER COUNTY,FLORIDA, BY PROVIDING FOR: SECTION ONE, RECITALS: SECTION TWO, FINDINGS OF FACT: SECTION THREE, ADOPTION OF AMENDMENTS TO THE LAND DEVELOPMENT CODE, MORE SPECIFICALLY AMENDING THE FOLLOWING: ARTICLE 1, GENERAL PROVISIONS, DIVISION 1.8. NONCONFORMITIES; DIVISION 1.19. AMENDMENTS TO THIS CODE; ARTICLE 2, ZONING, DIVISION 2.2. ZONING DISTRICTS, PERMITTED USES, CONDITIONAL USES, DIMENSIONAL STANDARDS, DIVISION 2.3. OFF-STREET PARKING AND LOADING; DIVISION 2.4 LANDSCAPING AND BUFFERING, DIVISION 2.5. SIGNS; DIVISION 2.6. SUPPLEMENTAL DISTRICT REGULATIONS; DIVISION 2.7 ZONING ADMINISTRATION AND PROCEDURES; DIVISION 2.8. ARCHITECTURAL AND SITE DESIGN STANDARDS AND GUIDELINES FOR COMMERCIAL BUILDINGS AND PROJECTS; ARTICLE 3, DIVISION 3.2. SUBDIVISIONS; DIVISION 3.3. SITE DEVELOPMENT PLANS; DIVISION 3.5 EXCAVATION; DIVISION 3.8 ENVIRONMENTAL IMPACT STATEMENTS (ELS); DIVISION 3.9 VEGETATION REMOVAL, PROTECTION AND PRESERVATION; DIVISION 3.12 COASTAL ZONE MANAGEMENT; DIVISION 3.13. COASTAL CONSTRUCTION SETBACK LINE VARIANCE; DIVISION 3.14. VEHICLE ON THE BEACH REGULATIONS; ARTICLE 5, DIVISION 5.1 BOARD OF COUNTY COMMISSIONERS; DIVISION 5.2 PLANNING COMMISSION; DIVISION 5.3 BOARD OF ZONING APPEALS; AND TO ADD DIVISION 5.5 HEARING EXAMINER; DIVISION 5.13 ENVIRONMENTAL ADVISORY COUNCIL; ARTICLE 6, DIVISION 6.3. DEFINITIONS, INCLUDING, BUT NOT LIMITED TO THE DEFINITIONS OF DESTINATION RESORT HOTELS, PARTICIPANT, PSI (POUNDS PER SQUARE INCH), RIGHT-OF-WAY, STRUCTURE, UNAUTHORIZED COMMUNICATION AND YARDS; ADDING APPENDIX G STANDARD BEACH EVENT PERMIT CONDITIONS; SECTION FOUR, CONFLICT AND SEVERABILITY; SECTION FIVE, INCLUSION IN THE COLLIER COUNTY LAND DEVELOPMENT CODE; AND SECTION SIX, EFFECTIVE DATES. 3. ADJOURN 2 June 20, 2001 June 20,2001 Item #2 ORDINANCE 2001-34, AMENDING ORDINANCE 91-102, AS AMENDED - ADOPTED WITH CHANGES CHAIRMAN CARTER: Okay. Welcome to the Board of County Commissioners Land Development Code, Session 2. We're now in session. If you'll all join me and stand for the pledge of allegiance. (The pledge of allegiance was recited in unison.) CHAIRMAN CARTER: Lovely idea. Unfortunately, our no- gifts policy does not allow to us accept these. Whoever the generous organization was that placed this here, we have to return it, but you may give it to the organization of your choice. So thank you. Believe me, it breaks my heart and particularly my associate's heart, who already had her eye on it. COMMISSIONER MAC'KIE: That chocolate looked pretty good to me. CHAIRMAN CARTER: All right. Ms. Murray, are you ready to take us through the process? MR. OLLIFF: Mr. Dunnuck may have a comment or two, Mr. Chairman, just in -- in opening. MR. DUNNUCK: Yes. For the record, John Dunnuck, interim community development/environmental services administrator. A couple comments I wanted to make tonight is that this is the second of two hearings, and this is actually the hearing where you will make votes. One of the things I wanted to point out this evening is that it takes a 4/5 majority vote in order for these codes to pass, these amendments. Therefore, in view of the fact that Commissioner Fiala is absent, it'll have to be a 4-0 vote on everything this evening. With that I'll turn it over to -- Page 2 June 20,2001 CHAIRMAN CARTER: Thank you, Mr. Dunnuck. Commissioners, we understand the rules. Let's proceed. Do we have on the agenda tonight where we have numerous public speakers signed up for any one issue, Mr. Olliff?. MR. OLLIFF: Speaker slips are out in the hallway on the small table. And if anyone is interested in speaking on an item, if they would just fill one of those out and give that to Mr. Dunnuck, who's raising his hand there in the blue shirt, we'll be sure to call your name as we get to that item on the agenda. With that, Ms. Murray, I think we're ready to roll. CHAIRMAN CARTER: All right. Let's do it. MS. MURRAY: This evening we'll go ahead -- I'm sorry. I'm Susan Murray for the record, interim current planning manager. Again, this is the second hearing, where you will be voting on these items tonight. Your preference, of course, Mr. Chairman, but the summary sheets that you have in your packet are listed in the order in which -- actually, it's probably the same order you took them at the last hearing. CHAIRMAN CARTER: Well, let us proceed, and you give us direction on how you want us to deal with each area, and we will -- MS. MURRAY: Within-- CHAIRMAN CARTER: -- proceed accordingly. MS. MURRAY: All right. Within your packet you will be working from the handwritten page numbers, which are in the center of the page. CHAIRMAN CARTER: Thank you. MS. MURRAY: And the first item on the agenda is the floor area ratio or commonly known as the RT zoning district provision. That starts on page 5. And I'm going to kind of let you take the lead on this, Mr. Chairman. I'll just remind you that we kind of left you with a number of choices here. In summary, the first choice was kind Page 3 June 20, 2001 of a hybrid to incorporate the FAR as recommended by staff with a density cap of 26 units per acre. You also have a choice of the FAR as recommended by the Planning Commission with the -- and they also recommended the density cap of 26 units per acre. That's one -- two choices there. And then you also have the option of reverting back to the old, straight 26 units per acre, which was the way it was prior to the June of 2000 amendments. CHAIRMAN CARTER: I believe the overall direction that I have received from the community that has voiced the most concerns to me is to resort back to pre-June 2000 language. And if staff feels there are any modifications in there that needs to be put anywhere that would deal with other countywide issues, I certainly would be -- I'm certainly open, as other commissioners may have questions on that; and/or we got to get into the grandfather issue to make sure that that language is there, that any permits pulled prior to July 1 of that year would not be affected by this or any approvals by this, etc. I think I've got that right so ... MS. MURRAY: Okay. Would you like me to read -- I would have to read this into the record, and I do have some recommendations. It's not entirely going back to the way it was, and I'll explain why. But it will necessitate me reading a lot into the record, if you'll indulge me. CHAIRMAN CARTER: Thank you. The board's pleasure, if we can hear that. MS. MURRAY: Okay. And this would be reverting back to the pre-June 2000 language. You would have to amend the following sections as noted: 2.2.8.4.5, which is the maximum density permitted, and it would read as follows: A maximum of 26 units per acre for hotels and motels and 16 units per acre for time-shares and multifamily uses when located within an activity center or if the RT Page 4 June 20,2001 zoning was in existence at the time of adoption of this code. When located outside an activity center, except as provided above, the density shall be determined through application of the density rating system established in the Collier County Growth Management Plan but shall not exceed 16 units per acre. The next part I'm going to read is the grandfathering language that we discussed last time. Any project which received approval at a public hearing prior to July 1, 2000, shall not be deemed to be nonconforming as a result of inconsistency with density limitations. The next change would be to Section 2.2.8.4.7.2, and that would revert back to a 300-square-foot minimum with a 500-square-foot maximum for hotels and motels, except that 20 percent of the total units may be utilized for suites. You may -- let me just comment here. You may want to contemplate that a little bit because you are -- would be imposing a maximum of 500 square feet for a hotel room, and you may want to not -- consider not doing that in light of current market conditions. And I'll just leave that and go on to the next. The next section would be 2.2.8.4.8. That's the floor area ratio section. You would delete the maximum floor area ratio for hotels, motels, and time-share facilities shall not exceed a factor of 0.60 except for destination resort hotels as defined in Article 6.3 where a floor area ratio of 0.80 is permitted. And the word after floor area ratio would then be added -- would just be "reserved." There would be no regulatory mechanism under that section. Then I would suggest that you do not adopt the following proposed definition, and I'm not going to read this in its entirety, but it would be Division 6.3, the residential hotel. And I believe the county attorney's office may have some comments that they want to put on the record with respect to that recommendation. CHAIRMAN CARTER: Mr. Weigel? Ms. Student? MS. STUDENT: I believe Mr. Weigel is going to -- Page 5 June 20,2001 MR. WEIGEL: Thank you. David Weigel, county attorney. Just to let the board -- recall to the board that at a regular board meeting, daytime board meeting, and then at the first hearing that this board had in regard to these Land Development Code amendments, the board asked to consider the addition of a definition of a hotel that hasn't been defined in the Land Development Code. And, as Susan has indicated, it would have a definition place in 6.3 under definitions. This has some history in origin in regard to the discussions that the board had outside of these particular proceedings in its daytime proceedings concerning the Beachcomber Hotel project on Gulfshore Drive. And the concept of the residential hotel has also been described as the high-end, extended-stay, boutique hotel, which would potentially have the ability to have larger hotel rooms, as opposed to smaller or even 500-foot-maximum hotel rooms, as well as specific definitional requirements concerning the use of the space within the building providing for amenities, concierge-type thing, facilities for the guests to use, open space, things of that nature. So the hotel concept includes not only potential for larger rooms, but also that the envelope that the building would comprise would have other dedicated uses and requirements aside from merely units. And, therefore, the conceptualization of such a hotel may, in fact, have less units and more amenities. There is a range that could occur in there. That's before you this evening. It was brought up in the context of discussion and deliberations, both with people that live in the community as well as the Beachcomber Hotel representatives at your most recent Land Development Code hearing on June 6th. CHAIRMAN CARTER: Okay. But since then we've had numerous discussions, Counselor, with all parties. Is there shortened phraseology here that we can all live with so that we don't end up with a situation on Vanderbilt Beach? Page 6 June 20,2001 MR. WEIGEL: Well, the situation on Vanderbilt Beach is -- and I think it's important for all to know is -- that the Land Development Code in this particular subsection and division of the RT zoning district provides for the use of hotels as well as multifamily residences as a matter of right, a property right. And the question of hotels and the existence of hotels or development of future hotels in the district is not before this board this evening and, in fact, may be problematical at any point in time for this board to consider the elimination of hotels in the district. So that being said, the question is, does this board wish to contemplate a hotel definition, therefore a conceptual development provision, in this code of a hotel that would be different but with specific requirements not here before recognized or defined in the code? And it provides a different kind of parameter for hotel development. The board's had significant discussion amongst itself at the Land Development Code hearing as well as at the daily -- regular meeting concerning the Beachcomber in regard to hotels, the concept of the hotels, and the kind of intensity of use that comes with the development of a hotel. And we've had discussion and the record would show that there is a -- there is discussion, not necessarily agreement, in regard to larger-size rooms of a hotel, potentially having lesser number of units, and the intensity of use that comes from the different kind of concepts as well as the different market that comes and uses it. We also have to recognize that the intensity of use of a hotel, which is a commercial structure, is different than the density that comes from a residential structure. Again, there's a bit of a reprise of what we've been dealing with all along here. We know -- in fact, we know specifically -- that this board is under a threat of lawsuit concerning the actions it's taken outside of Land Development Code Page 7 June 20,2001 hearings such as this concerning the Beachcomber and that particular -- that particular site up there. Part of the discussions that were had at the most recent Land Development Code hearing, June 6th, involving counsel representing the Beachcomber interest, concerned the concept of the extended-stay hotel. My recommendation to the board would that -- would be that you include that concept with your consideration tonight. And if you want a county attorney recommendation, it would be to put it in there. CHAIRMAN CARTER: Put in the extended-stay definition? MR. WEIGEL: That is correct. CHAIRMAN CARTER: The extended stay, do we put any limitation on square footage in those rooms and that size? I mean, if I take Hawthorn Suites and some of these others -- I'm going to go off the top of my head; I certainly can be corrected on this -- it seems to me we're looking at a range of somewhere between 5 and 800 square feet in total for those extended-stay suites. MR. WEIGEL: You could do that. However, if you -- if you allow the parameter of larger suites, that would potentially provide for fewer units. COMMISSIONER MAC'KIE: Can I also comment on that, Commissioner? Because as we've all done our research about what are these extended-stay hotels and that business, I've -- there are a couple -- everything that I could find locally was, like you said, about 800 square feet max, the sort of Embassy Suites and Marriott Residence Inn and that kind of thing. But there are also -- what I think we're talking about here, if we are going to talk about it -- and I'm not sure we even should. But if we are going to talk about it, this is a different concept from what exists in Collier County right now. That's more like what's up on Sanibel Island, for example, or more like what's around Orlando or more like -- there are actually a couple on Fort Myers Page 8 June 20,2001 Beach. And these really do walk, talk, look, smell, everything, that operate like a condo. They're condominium units. And if I lived on that street, I would rather have hotel units that are that nice. If I'm stuck with hotels, I'd rather have a 3,000-square- foot hotel unit that looks like a condo. And I see you shaking your heads no, and I'm not saying that I know what you want. I'm just saying what I would want. I would rather have very large, very nice, fewer, lower density hotel rooms that look like condos than have a ten-foot-story (sic) box full of 500-square-foot hotel rooms. I don't understand -- I mean, I think we've lost sight of that altogether. What -- if I were looking for what is more compatible with a residential area, a hotel that looks like a condo is more compatible with a residential area than the most beautiful Registry or Ritz in the world. COMMISSIONER HENNING: Commissioner Mac'Kie, I tend to agree with you, and this is a new concept. And, you know, looking at the -- in the paper, we have seasonal rentals on condos, beach access, and blah-blah-blah. And they're hard to find, from what I understand, when they come out to rent. So there is a market out there for it, but maybe we need to do this in a certain area or put some parameters around this so the acreage size would fit into the -- for that use. CHAIRMAN CARTER: Right now the size of the piece of property determines what can go in the box. Whether it's a condo or whether it's a hotel room drives that process. Now, the question becomes -- I'll listen to the community and their feeling. I'm just going to say, as I understand it -- they will correct me if I'm wrong -- is they would prefer the broader definition of not including extended stay but just going with hotel. And whatever ends up in that box, ends up. You know, will you build a Hawthorn Suites? Will you build a Page 9 June 20,2001 condo? Will you -- what will you do? And I think the cost of the property, the size of the property, where it's located isn't going to drive what anybody's going to build there. And I think that's where I understand that they're coming from, to let the free market determine what you put in the box. Don't try to build in "we think it would be better if you had an extended-stay definition." At least ifI am reading that correctly -- I see their heads nodding out there -- this is where they are. COMMISSIONER MAC'KIE: I think that makes sense. The only question I would have is, do we then need to put a maximum unit size if we're going to let the free COMMISSIONER COLETTA: COMMISSIONER MAC'KIE: CHAIRMAN CARTER: Well, no. market control? A possible suggestion -- I mean, or a minimum unit size. in the true free-market concept, COMMISSIONER MAC'KIE: So -- CHAIRMAN CARTER: You let the market -- you let the market determine what goes in the box. COMMISSIONER MAC'KIE: And maybe that's how we've gotten in this -- this, you know, bad place is we're trying to be a little too micromanaging about what goes on in that little piece of land. Maybe what's wrong is that we are trying to manipulate the market, and we need to just say hotels, this is how big the box can be. And those -- those two facts are not even up for debate, as I understand it. We know that this is a hundred feet. We know that this is a hotel. CHAIRMAN CARTER: Right. And there -- COMMISSIONER MAC'KIE: And I personally would choose something different on the inside than what the neighbors who live there would choose, but that's their business and, more importantly, the business of the person who owns the property and paid the money. Page 10 June 20,2001 CHAIRMAN CARTER: And there's a list of criteria that says if you're going to build a hotel, you have to do these things. It's there in the code. It says you have to have these certain criteria met, so that drives what goes inside. Commissioner Coletta. COMMISSIONER COLETTA: Just a point. It seems like there's still a certain amount of indecision. I wonder if we really have put this together and given it enough thought. Would there be a possibility that we might be able to send this back and put a study on this and report back at the next cycle and meanwhile put a -- what do you want to call it -- suspension of building rights to this property until this is decided? CHAIRMAN CARTER: I think you're going to fall down a slippery slope. I think you have to make a decision on the code, and there will be an extended study in the area as a part of this. Transportation is going to do a study, but we're going to expand that. And Marjorie Student has some other thing that we're going to look at that needs to come in front of this board of a bigger study, which got back to the interim control process that we discussed last time. COMMISSIONER MAC'KIE: I kind of started this discussion, and I've done some more research on it since our last meeting about this interim development control measure. The bottom line that concerns me about -- okay. Let me just say it. Let's be blunt. If our goal here is to try to have an effect on what's built on the Beachcomber piece of property, then we need to go into this with open eyes. And -- and the peace that I have, you know, sort of reawakened myself to is we can say we are going to defend, you know, the powers of good against the powers of evil and we're going to sue and we're going to stop the construction of this hotel. We can say that, and we can file such a suit, or we can take an action and have such a suit filed against us. And we can do that and say that if we lose, we know we're going to have to pay damages. Page 11 June 20,2001 But what I lost sight of previously is that there's another element to that. We can lose and have to pay damages, and then they get to build it anyway. COMMISSIONER HENNING: Right. COMMISSIONER MAC'KIE: That's what a judge would say under the right facts, circumstances. I'm not saying this is that fact pattern. But we -- you know, we -~ we don't have the power that we've been acting like we have. We don't have the power to stop something unless we are going to buy the piece of land flat out. You know, we've got to be realistic. And when I think about -~ you know, I've been critical of the City of Naples with their Hamilton Harbor lawsuit, and they get sued for $19.2 million. Well, what we've forgotten about is not only are they sued for $19.2 million, but after they pay that if they lose, then the developer still gets to build Hamilton Harbor. Well, for God's sake, let's don't do that. CHAIRMAN CARTER: I think that really gets back to as simplistic as go back to pre -- pre-June 2000 code -- it really covered the issue -- until we look at a further study of the area and how it might affect that area. It also does not disrupt anything else done in Collier County in terms of what can be done, and we don't get into trying to dictate a singular piece of property. I also noted that that property has some other -- other challenges on it that's not going to be brought by us, but by other agencies. So if we went back to pre-June 2000, when that property was bought by that development corporation, they could have put up 15 condominium units or, I believe, what, 24 hotel rooms or 26 -- MR. WEIGEL: That's based on the .92 acre. CHAIRMAN CARTER: -- based on the acreage of that time as determined then. If that changes to something else, that's certainly not in the control of this Board of County Commissioners, but that Page 12 June 20,2001 was the criteria. If you resort back to that, it says you can do what that code said, if we go there tonight. COMMISSIONER MAC'KIE: Commissioner, doesn't this project already have a building permit? CHAIRMAN CARTER: Not anymore. MR. WEIGEL: No. You revoked that. CHAIRMAN CARTER: We revoked it. COMMISSIONER MAC'KIE: Oh, yeah. COMMISSIONER HENNING: Mr. Chairman, can I make a suggestion to poll the board on the discussion that you just had, which is 2.2.8.4.8? CHAIRMAN CARTER: Right. COMMISSIONER MAC'KIE: units an acre? COMMISSIONER HENNING: COMMISSIONER MAC'KIE: COMMISSIONER HENNING: COMMISSIONER MAC'KIE: Which is to go back to the 26 Or I'm sorry. It was 2.2.8.4.5. Which is to go back -- Right. -- to 26 units an acre? Okay. Well, before we do that, I don't want to make the same mistake I've made before. I need to know what could be built on a typical 1-acre site if we go back to May 2000. MS. MURRAY: June 2000? COMMISSIONER MAC'KIE: Well, May, because June is when we changed it. MS. MURRAY: Right. Prior to your change. Prior to -- well, if it was a 1-acre site, you would have -- and it was a hotel, you would be allowed 26 units per acre. And then if you go in -- in its entirety back, you would then have the limitation of 300-square-foot minimum and 500-square-foot maximum for hotels, except that you could use 20 percent for suites, and you would not have a floor area ratio calculation involved. And I think that -- Page 13 June 20,2001 COMMISSIONER MAC'KIE: And so on a 1-acre site, I would be able -- and how tall could the building be? MS. MURRAY: A hundred feet. COMMISSIONER MAC'KIE: And would that include the parking? CHAIRMAN CARTER: Well, the size of your property, yeah, would dictate your parking whether -- however you configure that on there. MS. MURRAY: If you -- right. If you did your parking as a parking garage per se, with the hotel on top, yeah, it would -- the hundred foot would be included. COMMISSIONER MAC'KIE: That's my question. MS. MURRAY: That's correct. COMMISSIONER MAC'KIE: If you did -- which everybody does there because of FEMA and the flood regulations -- you would put your parking underground. And say you had one level of parking -- I don't know how much it would be necessary to have to support this. But if you had one level of parking, how many floors of hotel could you have above that within the hundred feet? MS. MURRAY: It's -- it's hard for me to do that calculation. Again, with a 500-square-foot maximum and 26 units, I don't know. I would just be guessing, honestly. COMMISSIONER MAC'KIE: I just think we -- I mean, this is how I've got into the mess that I got into on the floor area ratio when I voted for it before, is the concept sounded good, but nobody did the math and showed me what could be built with that. And I'm not going to vote for something again until I know the answer to that question. I mean, Mr. Weigel, I hope I don't have to vote without knowing. MR. WEIGEL: Well, you see, what we went to before was pure floor area ratio without a limitation of units. And what's before you Page 14 June 20,2001 tonight in two versions is you could back to May 2000, you've just got units, you don't have floor area ratio in the RT district, which may be a good thing. What's also been proposed to you and winded its way through the CCPC is not only a floor area ratio, revised from what it is right now, but also a maximum number of units. So, therefore, you could never get more than 26 units on an acre for hotel; but at the same time they have a floor area ratio, so the units could be bigger, purportedly to meet a changing market, but also to obtain a slightly different use and the clientele, things of that nature. COMMISSIONER MAC'KIE: Well, I'd like to hear from somebody about what's bad about that idea, a floor area ratio with a maximum number of units of 26. And I've got the public -- they're the most informed group of people I've met with in a long time. CHAIRMAN CARTER: They would have to fill out sign-up slips, and they would have to come forward to comment on that. COMMISSIONER MAC'KIE: I bet they have. MR. OLLIFF: They have. And, Mr. Chairman, you've got a number of speakers registered on this item. And perhaps the most efficient thing to do would be go straight to public speakers. CHAIRMAN CARTER: Thank you. MR. DUNNUCK: You've got eight speakers on this item. And if you can come up two at a time as you're called and one sit on deck so we can keep this thing moving, that would be appreciated. First up is Joe Connolly followed by Carol Wright. MR. CONNOLLY: Good evening again. CHAIRMAN CARTER: Good evening, Joe. MR. CONNOLLY: It looks like -- CHAIRMAN CARTER: We will get you back to Tennessee, sir -- I mean to Georgia. MR. CONNOLLY: I don't want to go to Tennessee. I want to Page 15 June 20, 2001 go to Georgia. We've come full circle, it looks like, and hopefully we can return to a world of reality, understandability, and keeping it simple. Joe Connolly for the record. Before I get to our wish list, there's a couple of things I want to clarify. Number one, he's not here tonight, I don't think, but we had an expert witness, I guess he would call himself, to put forth this residential hotel scheme that everybody's moving toward and so forth. The fact is that is not so. There is no move toward residential hotels. In fact, the movement is to smaller units. That same expert witness said that the suite hotels were about 1100 square feet; false. Suite units are about 5 to 600 square feet. Mr. Weigel, not intentionally, but could have misled some people by saying that there were 13-, 14-, and 15-story units on the Gulfshore Drive; I think you might believe all up and down the street. That's not the case either. There's one small pocket on the very north end that was, is, and has been zoned RMF-16, and that has some 12- and ! 3-story buildings on it. That's what it was designed to be for. The rest of the -- of Gulfshore Drive, or 85 percent of it, is 4-, 5-, and 6-story-unit (sic) buildings over parking. The answer to the question that you asked of parking is, you'd have one level of parking and nine stories of hotel rooms. I don't know what's so difficult about that. Also, somebody made the statement that Lot 50 and 51, which is notorious now as Beachcomber property, was for 45 years and is commercially zoned; wrong. It was for 45 years and is zoned RT. So now to the wish list. We would like to go back to the pre- June, May of 2000 that you-all have been talking about, and it allows 26 hotel rooms, 300 to 500 square feet, 20 percent suites that may be able to be a little bit larger, per acre; 16 time-share and condo units per acre. Now, this residential hotel, the residential conforms -- means more -- looks more like a condo than it does a hotel. Page 16 June 20,2001 So if you're going to do a residential hotel, which you don't need to do, then let it be 16 units per acre like a condo is because that's what it is. There's no need in -- to go through all this paraphernalia of trying do something when there's no need for it. If you want to rent a condo, rent a condo. They're available in all different sizes and for all different time periods. So let's not make a monster out of something when there's no need for it. The other thing we would like is that the hundred-foot minimum (sic) include parking, and we don't want any more multistory parking garages. If you'd like to see the result of what happened last June, please ride down Gulfshore Drive, look on the bay side at La Playa, and you will see a concrete wall going up, which is their six-story parking garage. I pity the people that live on the bay that have to look at it. We don't want any wedding-cake setbacks. The setbacks should be from the ground level, foundation, to the top of building, without going through all this crazy tier thing. That's what it was intended to be. And how we ever got into that, I don't know. And, like I said, no more multistory garages. We strongly endorse the interim development control study which encompasses the Vanderbilt Beach -- the drive -- traffic study and also the community character study. And that no building permits be allowed for multifamily units until that study is completed. And that basically is our wish list. (Clap of thunder) CHAIRMAN CARTER: You may have had the support upstairs on that one. MR. CONNOLLY: Got some reaction, didn't I? And that's basically it. We appreciate your indulgence through these months that we've been talking to each other, and I hope you-all have a nice summer. Page 17 June 20,2001 CHAIRMAN CARTER: Thank you, Joe. You have a good time in Georgia. MR. DUNNUCK: Carol Wright followed by Frank Holds. MS. WRIGHT: Good evening, Commissioners. My name is Carol Wright. I represent some 700 members of the Vanderbilt Beach and Bay Association, which I don't think I even need to say anymore because I've been up here for six months telling you these same things. You know how I hate to speak, and I'm going to hope this is my last speech because tonight you're going to make a decision. I wish Mrs. Fiala was here. We know how sick you are of seeing us, and it's almost a game of who can outlast who, and believe me, we will not give up. There is only one thing to do tonight, and that is to take the LDC back to where it was before June of 2000, which was 24 hotel units per acre with 3-to-500-square~feet maximum and 20 percent suites. You've heard a lot over the months about how hotel suites have to be 1100 to 3,000 square feet, and we feel we've done our homework and found that this is absolutely not true. Most hotels are 4 to 500 square feet and some suites are 800. If you want 3,000-square-foot hotel units, that opens the door to developers. If you want 3,000 square foot, put it in at 16 units per acre. We're asking that you preserve the character of Gulfshore Drive on Vanderbilt Beach by putting it -- putting us in an interim development control study along with the corridor study, which is already funded. We need to get rid of all the definitions of hotels and say a hotel is a hotel. We want you to restore the wording that 100 feet is from the foundation to the top of the roof. We are so opposed to a floor area ratio, and hopefully in your findings and studies you are opposed now also. In your heart you know what has to be done. Please don't let us down. Be known as the commissioners who stood up for what you Page 18 June 20,2001 knew was right for our area. Just say no. Too much has gone under the dam. The others have ruled too long. Please help us get back on the right track. And with that, I thank you very much. CHAIRMAN CARTER: Thank you, Carol Wright. Next speaker, please. MR. DUNNUCK: Frank Holds followed by -- CHAIRMAN CARTER: Pass. Next speaker. MR. DUNNUCK: Chuck Brooke followed by Dr. Richard Bing. MR. BROOKE: Good morning. My name is Chuck Brooke. I live on Gulfshore Drive, and I'm also the treasurer of the Save Vanderbilt Beach Association. I've had the opportunity to address you in previous meetings, and I continue to believe that the changes made in June of last year will cause irreparable harm to the residents of Vanderbilt Beach by allowing much larger hotels to be built than was contemplated prior to June of 2000. I've shared my reasoning in some detail with some of you and with county staff, and I would like to elaborate on that right now. I'm not an expert, but I think that it is very critical that when you talk about the box and you're going to let the free market determine what goes into that box, whether it's 4,000-square-feet units or 200-square- feet units, but to define what that box means and the size of it. To me that's a critical point, and I want to try to do that. Again, I'm not an expert, but you should have plenty of experts, and I think you should have a good idea of what that box is and how big it is before you make the decision. So let me give it a try. I'm going to start out with a principle that a box for any kind of a hotel, whether it's a residential hotel, destination hotel, plain old hotel, whatever you want to call it, be equivalent to the box that a 16- unit condo would go into. Just a basic simple principle. If you're going to regulate something, you're going to let the free market take it Page 19 June 20,2001 into consideration, then don't give one side an edge one way or the other. That's the basic principle. The first problem you have is that right now in -- and even prior to June of 2000, defining the size of the box for the condos isn't simple. It simply says 16 units, okay, per acre. It doesn't say how big it is. But let me try to fix the size of that box by just saying -- I'm going to pick 2,000 square feet as the average size of a condo. That's my -- my figure. If I take the number of square feet that are in an acre and I take 2,000 square feet per unit, I come up with a size available for the building of roughly 38,000 square feet. That's what I'm going to define as the box for a condo. And what that means -- again, I'm a layman -- is there's your box. You've got 15 percent for common areas, and you got the rest of it for units. And you can make them 300, you can make them 3,000 square feet. This is for a condo. So if you'll stick with me -- and that's the size of the box for a condo, roughly 38,000 square feet. Now let's translate that into a hotel, any kind of hotel you want. Okay. Let's start out with 38,000 square feet -- COMMISSIONER MAC'KIE: Hundred. MR. BROOKE: Right -- for a hotel available for common areas and for building units of any size that you want. Well, at that point then, if you're limiting it to 26 units and you want to keep the same size of the box and you're not going to define the size of each unit, then you got to define a FAR. And once you define that FAR, it's fairly simple because you've got the number of square feet in an acre, and you know what your maximum size of the box is. It happens to come to around .8. At least that's my calculation. Then you've got that box of roughly 38,000 square feet for a hotel, and you can make it, you know -- I put in 25 percent area for common usage, and the rest you can build units on. According to my calculations, which, again, are layman's calculations, you can build a Page 20 June 20,2001 thousand square feet -- you can have 26 units, okay, of a thousand square feet each for this hotel. Or you can go to 3,000 units -- I mean 3,000 square feet per unit and have 11 units. So that gives you your range. Now, all I'm trying to say is what I'm trying to define, at least for me -- and hopefully you would go through the same thought processes. Make up your minds what is the box, what should it look like, how big is it? And then make sure that what is written into the code reflects the size of the box that you want. I think it would be much better, in my opinion, if you took a breath, took some time to study it. It doesn't have to be two years; four months, six months, so that you could go over this. You could have plenty of counterplay between people saying those numbers are right, those numbers are wrong, until you finally settle in your mind what it really is like and what the basic principle should be and then make your decision. I would suggest that it's going to be difficult for you to do that tonight, but if you can't take the time to study it carefully, then please try to think it through very carefully tonight. Thank you. CHAIRMAN CARTER: Thank you. The next speaker, please. MR. DUNNUCK: The next speaker is Dr. Richard Bing followed by Diane Ketcham. DR. BING: Richard Bing, president of Vanderbilt Gulfside Condominium, and I live on Gulfshore Drive there. First of all, let me thank you, Commissioners, for your public service. We certainly do appreciate that and the effort it takes. It often puts you in a precarious situation. I've listened to some of the dialogue about if you do this way, you're going to get sued; and if you do this way, you're going to get sued. And having been in your situation -- in a similar situation, elected office, I think the thing you have to really come down to is, Page 21 June 20,2001 what is the will of the majority? And, yes, individuals do have property rights, but in this case I think you have to really think about, what do the majority of the people who are property owners on Vanderbilt Beach want? And when we bought our property -- and I know some of you came here voluntarily. You chose to live in Southwest Florida because you had a choice between Fort Lauderdale or Miami Beach and concrete jungle, etc. You had a vision of what this was going to be like, and we'd like to retain that vision. And really, on Vanderbilt Beach we're fully developed now. Anything that would increase density or intensity, to us, is unacceptable. And I think that puts you in a tough situation. But, you know, counting acreage that's under water, considering commercial development on something that's less than 1 acre doesn't make any sense. So I'll leave that with you. I don't want to get into floor area ratio because I don't understand it that well. But basically, 16 units per acre, regardless if they're big, should be the limit. And then if you're going to go with the other side and stay with 24 and a smaller unit, fine. Thank you. CHAIRMAN CARTER: Thank you, sir. Next speaker, please. MR. DUNNUCK: Diane Ketcham followed by Michael Volpe. MS. KETCHAM: Hello again, Commissioners. My name is Diane Ketcham. I'm a board member of the Vanderbilt Beach and Bay Association and head of the Save Vanderbilt Beach Association, and I feel like we're all aging together. We have been here so many times in the last eight months that our cars can get here by remote control. We know where every bathroom is in this building, I think. But tonight may be the night. Tonight you can make the residents of Vanderbilt Beach sleep a little easier and stop seeing us for a while. Tonight you can say, "We hear you on Gulfshore Drive. We've had enough of changing the Land Development Code without a full appreciation of what those changes can do. We don't want to Page 22 June 20,2001 force something on you you don't want, don't need, and have cause more traffic, more burden to the infrastructure, and more density on your fragile beach road, coastal high hazard area. We commissioners want to maintain the character of your neighborhood. We want to work with you to make sure the Vanderbilt Beach tomorrow stays the jewel that it is today." You see, it's really easy what you need to do to make us all happy and basically go away. For the short term, just give us back the Land Development Code we had before the disastrous changes were made last June, changes that were made with no input from us and, if you look at the transcript, no input from the board of commissioners. Give us back the control on the amount of hotel units per acre; 26. Give us back the size of the units being between 300 and 500 square feet with 20 percent guest suites. That square footage works with all suite hotels. We did the research. We have given you the information. Another example that I found today, Doubletree, which was built in the RT zoning right by Pewter Mug, their one-suite (sic) units are 405 square feet; their presidential suite is 819 square feet. All suites work within that 500 square foot and then the 20 percent for their bigger units. If a hotel developer wants bigger units for extended stays, like time-shares and condos, let them build it under the multifamily use of 16 units per acre. Many other places in the country do that, including the City of Naples. Naples says any hotel unit with a kitchen is given less density: 18 units per acre. And, please, also make sure time- shares go back to the 16 units. And I think now they are back, rather than all of a sudden they mysteriously went in with hotels and got a greater density. And also give us back the maximum height of buildings being a hundred feet from foundation to rooftop. Get rid of the reference to Page 23 June 20,2001 10 stories. No building on the bay side of Gulfshore Drive in RT zoning is higher than seven stories. Nobody ever talked about building ten stories on those little bay side lots before June of 2000. Give us back the building height definition that had teeth in it. But bringing back the code isn't going to solve all our problems. We need to plan for the future responsibly. We need to control the growth. We need to save some greenspace. We need to keep the height of buildings at a level that people can see the sky. To do this we need a freeze on building until we get it right. I know we can't use the "M" word, moratorium, but we can use the IDC, interim development control study. It can be incorporated in the Vanderbilt Drive corridor study already under way and already funded. It will give us time to stop this crazy development that's taking over Vanderbilt Beach. Give us a year. Give us six months. Give us something to decide what will work. People are talking about changing the zoning on Gulfshore Drive to all residential, grandfathering in the hotels and motels already there. I haven't heard anybody who's opposed to that, even the motel and hotel operators. They don't want any more competition. But we need time to do that. Don't rush into redeveloping our area. Rushing has caused the problems we have now. And please stop this nonsense of changing the codes every six months by adding a different definition for everything a developer wants to build. Our RT zoning is only half a mile long, yet the planning staff has already got a destination resort hotel, and now they want a residential hotel. What comes next year, a resort residential boutique casino hotel.'? A hotel is a hotel. Keep it simple. We're not sure anybody wants to build another hotel on Gulfshore Drive. Everybody knows the money's in condos. So, please, tonight give us a reason to believe in government Page 24 June 20, 2001 again. You did that last month when you stopped the hotel project that would have been disastrous for our area. Now you must stop changing the code, which would bring more disaster upon us. Please, let's go back to the way it was, and also let's have a freeze. Give yourself and us time to plan for the future instead of always having to repair what was done in the past. Thank you. CHAIRMAN CARTER: Thank you, Diane. Mr. Volpe. MR. VOLPE: Good evening, Mr. Chairman, Members of the Board. My name is Michael Volpe. I'm here this evening representing the residents of Vanderbilt Beach. This debate began back in December of last year, and we are in June of 2001. Six months later I think we see that there is some -- as Commissioner Coletta indicated -- there is some indecision, and there still seems to be some confusion about what was actually intended back in June of 2000 when the board first amended the Land Development Code to introduce the new concept of floor area ratios. Why was that done, and what was it that the board was intending to address at that particular point in time? As the board, I'm sure, knows, there are a limited number of RT zoning districts within Collier County, very few of them, very few of them that are undeveloped. We have seen that under the Land Development Code as it existed prior to June of 2000, we saw a host of new hotels, suite hotels, being built in our community. Nobody seemed to have a problem developing the type of hotel -- which the residents have done their homework and have actually determined that the actual size of these units is somewhere in the neighborhood of between 400, 500, 800 maximum, which has all been done under the prior code. Floor area ratios, the reason why it was first advanced was the staff felt it would be more appropriately used for commercial structures. That's why they did it in the first instance. That's what Page 25 June 20, 2001 they said. We've gotten other concepts introduced, residential hotels, which are sort of refining, but obviously for a specific land -- pieces of land, parcels, not the overall RT zoning district. For your information, in the City of Marco Island, they do not use floor area ratios. For your information, in the City of Naples, they do not use floor area ratios. The question is what are we trying to accomplish by going to a floor area ratio? We've seen that what has happened, in my opinion, as a result of the change that occurred in June, was that we have ended up with unintended sequences that's brought us here, beginning back in December. It would be my recommendation to the board that we know what we have had prior to June of 2000. Ms. Mac'Kie's -- has raised some issues about property rights -- very important -- and the possibility of litigation. But if you were to restore or go back to where you were in June of 2000, I'm not sure what the lawsuit would be. And as a part of -- I mean, this is what people had under that Land Development Code. And it would give the board an opportunity -- maybe not to have any kind of an interim development control; this is the zoning. You can go ahead and do whatever it is. As Commissioner Mac'Kie has indicated, you're going to get a 26-unit hotel on 1 acre, whatever number of units you can build under the existing Land Development Code. And then the board can, at its leisure -- and it's a very busy time of the year for all of you to actually do the study. You've incorporated Gulfshore Drive into your traffic study, but there are other issues which I think you're hearing your constituents raise some concerns about. There is only, really, one RT zoning district left in the county, and it is on Gulfshore Drive. So if you do take -- you know, step back or pause, in my humble opinion, I think that you'll accomplish what it is that you intend to do. And if you look back as to what we were trying to do in June of Page 26 June 20,2001 -- of 2000, you obviously -- there are other ways of getting at that. And so I would suggest to you that by going back to 2000, June of 2000, limiting the number of units for condominiums to 16 units an acre -- and for hotels, a hotel is a hotel is a hotel; we've seen what's developed under those Land Development Codes -- you've protected the rights of all of the individuals that are concerned, and you'll give the board and your staff a little bit more time to kind of sort through this confusion. One last point and then I'll be seated, and that is floor area ratios. When your staff originally recommended you -- a floor area ratio to you, they did so that it would equate to the number of units which were presently allowed. What has happened now, you-all have picked some numbers that -- that kind of-- I don't know where they've come from and for what purpose. And we go from. 7 to .8 to 1.15 to 1.65, and really nobody understands what the unintended consequences will be. And what has just been said to you by Mr. Brooke is that if you look at the chart, the floor area ratio will determine the mass of the structure that can be built. And depending upon floor area ratios, depending on what number you pick, that 38,000 square foot box that he was talking about, if you apply a higher floor area ratio, you'll double the size of that box. That's how I've sort of tried to understand what's going on here. Thank you very much for your attention. It's decision-making time. We need four of you to vote, and hopefully you will all bring us back to where we were before this debate began in December. Thank you very much. CHAIRMAN CARTER: Thank you, Mr. Volpe. MR. DUNNUCK: You have one final speaker who -- I believe Mr. Anderson is willing to waive as long as there isn't any changes or discussion relating to the grandfathering in of the existing hotels. Page 27 June 20, 2001 CHAIRMAN CARTER: And I think for the record Ms. Murray has one little piece of wording to put in there that may not be in front of us in regards to grandfathering, and then I would like to move that we go back to where we were prior to June 2000, no floor area ratios, keep it simple. And then as we move forward, we can look at what we can do with the study that's under way and then broaden that base as an additional discussion tonight. Ms. Murray. MS. MURRAY: Mr. Chairman, if you go back to the old language, as you've described, I've already read that into the record. CHAIRMAN CARTER: Thank you. MS. MURRAY: So you're covered. CHAIRMAN CARTER: Okay. with the density and -- MS. MURRAY: That's correct. COMMISSIONER HENNING: And grandfathering is covered And I'll second that. CHAIRMAN CARTER: There's a second. I have a first and second. Discussion? COMMISSIONER HENNING: Yeah. I just want to say a correction. There is RT zoning vacant land in Golden Gate and in East Naples, so it's just not in that one area. CHAIRMAN CARTER: Well, then this gives us an opportunity to really define that, Commissioner, so that we have a better handle on this. It's been a hell of a learning curve, is all I can say, and I hope I never hear the word "floor area ratio" again as long as I live. But I'm sure it has application. I think the intent was -- was a good -- the intentions by staff were not devious. They were not ones that tried to get us into difficulty. Sometimes, as well said by Commissioner (sic) Volpe, we have unintended consequences. Staff is already discussing in the future, let's really get to a big horizon before we do some of these things. So if you're all in favor of the motion, signify by saying aye. Page 28 June 20,2001 (Unanimous response.) CHAIRMAN CARTER: (No response.) CHAIRMAN CARTER: (Applause.) Opposed by the same sign. Motion carries 4-0. MS. MURRAY: I do need a little bit of clarification on that, so when I go back -- may I make sure that you basically amended 2.2.8.4.5, which is the density? CHAIRMAN CARTER: Right. MS. MURRAY: You also included 2.2.8.4.7.2, which is the limitation on square footage including the minimum and maximum; is that correct? CHAIRMAN CARTER: Right. MS. MURRAY: And then, of course, we deleted the language for floor area ratio. CHAIRMAN CARTER: Yes, ma'am. MS. MURRAY: Anything else that I -- CHAIRMAN CARTER: What about the destination or the residential suite or whatever it is? MS. MURRAY: The residential hotel, that really was the question. You had gotten some information from Mr. Weigel. And did you mean to delete that or not? CHAIRMAN CARTER: Is that a part of where -- well, let me go back. Does that require a separate motion, Counselor? MR. WEIGEL: No, it really doesn't. You said to go back to pre-May or June 2000. That wasn't part of pre -- that wasn't part of pre-June 2000. So our understanding, and the record should reflect, that is omitted from consideration. It is not part of the adoption tonight. CHAIRMAN CARTER: Ms. Student. MS. STUDENT: Mr. Chairman, I just have one general Page 29 June 20, 2001 comment. And you may be taking separate motions on different pieces of the code, but at the end, in the final motion, if you'd make a finding that all of the amendments are consistent with the comp plan. CHAIRMAN CARTER: Thank you, Counselor. I will do that, and I know you'll remind me if I don't remember. Okay. Commissioner Henning. COMMISSIONER HENNING: I would like to say I think this extended stay does have some merit, and it -- obviously we should not be doing anything this evening. But I think we can have it here in Collier County under certain conditions, certain parameters where we're not raising things way up in the air but, you know, spread it out on a bigger piece of property, parcel of property. COMMISSIONER MAC'KIE: And that's one thing that we need to keep in mind, is that hotels are not permitted only on RT zoning; they're also permitted in commercially zoned areas. So that possibility would exist in a commercially zoned site; true? MS. MURRAY: That's correct, yes. CHAIRMAN CARTER: So we didn't really interfere with that. If you want to have an extended stay in a commercial site, you can still do that; am I correct? MS. MURRAY: That's correct. CHAIRMAN CARTER: Okay. Commissioner Henning. COMMISSIONER HENNING: And I also would like to say, for the next LDC cycle, that I would like to see the heighth amendments in all the commercial districts along with setbacks in the -- in the uses. COMMISSIONER MAC'KIE: I agree. MR. DUNNUCK: Just for the record, I don't know if you caught my memo that I had sent to the board over the last couple days, but that's on our -- CHAIRMAN CARTER: RT districts, setbacks, heighth Page 30 June 20,2001 restrictions, etc. I have proposed to staff that we incorporate our energy this fall towards reviewing the entire sections of the code, including a memorandum from Mr. Dunnuck that I have. COMMISSIONER MAC'KIE: But does it also include commercial districts instead of just RT? MR. DUNNUCK: Yes, it does. COMMISSIONER HENNING: And I'm just saying I support that. CHAIRMAN CARTER: All commercial zoning districts. COMMISSIONER MAC'KIE: Good. CHAIRMAN CARTER: Well, let me read it. All commercial zoning districts, C-1 to C-5, allow the use of setbacks, height restrictions, etc.; bullet, landscape regulations, one year, RT district setbacks, height restrictions, etc., architectural regulations, one year; bullet, transportation needs, slash, land use. And he says it's only the beginning, but we hope in the next cycle we could address these issues. COMMISSIONER HENNING: And, Commissioner, I think we're getting to the community character plan and smart growth. CHAIRMAN CARTER: We're doing all of those things. But keeping us focused where we are this evening, let's go forward, and let's go to the next situation. MS. MURRAY: The next situation would be -- and we can take these all as one -- the -- starting on page 7, the annual beach events permit, the coastal construction setback line variance, and the vehicles on the beach. I have a few things to read in the record, but I'll just preface that by saying that we believe the information provided to you reflects the changes that you indicated you wanted at the last hearing. And if somebody from the public disagrees with that, I'm sure they're signed up to speak about that. But I do need to go ahead and read a couple things into the record because you Page 31 June 20, 2001 received some handouts tonight that had some last-minute changes. The first thing I need to read into the record is with respect to the consistency of the LDC Sections 2.6.34 and 3.14 with Policy 10.4.10 of the Growth Management Plan. Based on the board's interpretation expressed at the meeting on June 6th, staff needs to merely put it onto the record that the manner and use of vehicles being authorized in each of these sections does not constitute "traffic" or "vehicle traffic" as those terms are used in the stated policy. Having said that, you'll note that Section 3.14.6 adds the words "environmental maintenance" to ensure that this exception in Policy 10.4.10 is added to the text of-- COMMISSIONER HENNING: Excuse me, Susan. MS. MURRAY: -- this provision. Sure. COMMISSIONER HENNING: Before you go any further, I looked on page 70, and that wasn't it, so help me out. MS. MURRAY: Hang on just a -- it's on your -- actually, it's in your handout. You should refer to your vehicle on the beach -- it should be three separate handouts grouped together. CHAIRMAN CARTER: Annual -- is that the annual beach events? MS. MURRAY: That's correct. CHAIRMAN CARTER: Vehicles on the beach too; right? MS. MURRAY: Right. Vehicles on the beach, annual beach events permit, and coastal construction setback line variance. COMMISSIONER MAC'KIE: Got it. CHAIRMAN CARTER: Okay. And you don't have to read all that again, but tell me which one it was. I can quickly skim it. MS. MURRAY: 3.14.6, which is on the vehicle on the beach regulations. CHAIRMAN CARTER: Okay. MS. MURRAY: And that's roughly page 5 of the vehicle on the Page 32 June 20,2001 beach regulations. You should see it highlighted in yellow there. It says "environmental maintenance." That was added. And it makes it more consistent with the stated policy of the Growth Management Plan. COMMISSIONER MAC'KIE: Motorized? Is that what you're - - I don't understand what was added. MS. MURRAY: I'm sorry. Section 3.14.6, page 5 of the vehicle on the beach regulation. COMMISSIONER MAC'KIE: Yes. MS. MURRAY: Right about the middle of the page, the words "environmental maintenance." Is yours highlighted in yellow? COMMISSIONER MAC'KIE: Huh-uh. (A discussion was held off the record.) COMMISSIONER MAC'KIE: I think we'll share now. CHAIRMAN CARTER: Okay. As long as you got it, I'll be okay. I got it. Got it. MS. MURRAY: So that was added. CHAIRMAN CARTER: Thank you, Susan. COMMISSIONER MAC'KIE: I was interested, Susan, are you going to take us -- oh, you're getting us to the penalties part; right? MS. MURRAY: I'm going to -- I'm just -- if you have questions, I would just request that you ask them of me or my staff, really. I'm just kind of being the facilitator here. COMMISSIONER MAC'KIE: The one thing that I wanted to be sure was not in here anymore was our ability to revoke a permit for violation. You know, maybe there should be an annual review on if a permit should not be reissued for the following year based on something. Is that in here? MR. DUNNUCK: Yes. What we've done is we've taken out the language where we've actually used it as a penalty. Now, I think there will be discussion from counsel, and maybe you, by giving Page 33 June 20, 2001 some direction right now, can clarify this, regarding the representative of the Ritz. There is an overall Land Development Code provision that allows staff and the Board of County Commissioners to revoke permits. They're looking for some protective language in there that wouldn't even -- that would actually add on to the general provision that we couldn't revoke a permit at any given time because of the implications it has. If the board is in support of that, what I would recommend is that the commission, if they're looking to do that, that maybe we add the language in there that says it can only be revoked by the Board of County Commissioners as opposed to at the staff level, if they're willing to go that route. COMMISSIONER MAC'KIE: I'd like -- COMMISSIONER HENNING: What is the stick in there besides that permit thing? Is there any other sticks in there? COMMISSIONER MAC'KIE: Big money. MR. DUNNUCK: Just fines. COMMISSIONER HENNING: What is the fines? MR. DUNNUCK: The fines, I believe, go up to $5,000. COMMISSIONER HENNING: MR. DUNNUCK: Yeah. COMMISSIONER HENNING: COMMISSIONER COLETTA: $5,0007 So there is -- there is a stick. Third or more violations. MR. DUNNUCK: Which is the maximum we can go to under the current provisions of the Land Development Code. COMMISSIONER MAC'KIE: And I -- let me just back up and say fundamentally I think that the idea of granting somebody a permit to use their own property for an event is backwards. And it's only because of that that I'd be willing to consider reducing the right to revoke the permit to something that can only be done by the county commission, because we've got to keep in focus here, guys. Page 34 June 20, 2001 What we're talking about is -- what is really driving this is we know that hotels -- part of what comes with the hotel is the right to have parties at the beach on the property that you own, if you happen to be a hotel that has beach property. As a part of our responsibility for protecting the sea turtles, we need to know if you're going to be doing anything out there during the sea turtle nesting season. So we've set up this process whereby we give you a permit to do things on your own property during sea turtle nesting so that we can go out there and watch and be sure that the turtles are protected. The problem is, is that we called it a permit. We really should have called it some kind of a notice. COMMISSIONER COLETTA: Or license? COMMISSIONER MAC'KIE: Just anything, you know, because the point is, they need to pay us a fee equal to the cost of monitoring their activities to be sure that the turtles are protected, and we need to know when they're going to be doing activities out there that might affect the turtles so that we can monitor them. And if they do anything that might harm the turtles, not only do they have our fines to deal with, they have state and federal, serious, issues -- much more serious than our $5,000 of jurisdiction -- to deal with. So -- but rather than rewrite the whole code and say, you know, stop calling it a permit -- because it really shouldn't be; it's their land they're using, and we just need to be able to monitor its effect on the turtle nesting -- I'd be happy to say that it could only be revoked by the Board of County Commissioners after hearing, at the least. COMMISSIONER HENNING: Commissioner, let me put this in perspective, because I think you really hit a good point. It is their property, and a single-family homeowner, if he had a code violation of-- of 18 inches of weeds, he would get a -- a notice to do it. And if he doesn't do it, the county goes in and does it and charges him. And, I mean, you can't say, "Well, we're going to kick you out of your Page 35 June 20,2001 house," and that's basically what you're -- what we're saying. And I like that language that you want to put in there about let it come to the county commissioners. COMMISSIONER MAC'KIE: You know, this is certainly more important -- from my perspective, protecting the interest of the sea turtles and their nesting is more important than the mowing, and I know you didn't mean that but -- COMMISSIONER HENNING: Well, no. I mean -- CHAIRMAN CARTER: No. But the analogy was -- was there. Let's not debate analogies. I think you're both on the same page. It is their property -- COMMISSIONER HENNING: Right. CHAIRMAN CARTER: -- and license or whatever, and I think in a future LDC we could properly reword this and get away from the permit kind of thing. But I truly believe and agree, the Board of County Commissioners -- if it's that serious of a violation, it can come to us, and we can have that discussion. But state and federal agencies are going to be so tough on them if it gets to that level that, you know, it becomes almost a moot point to me that we're even involved. It's-- COMMISSIONER MAC'KIE: Well, that's -- CHAIRMAN CARTER: But it's okay. I'm okay with the wording so that it's a built-in insurance. But you're right. Let's get there. How do we get there? And how many speakers do we have? MR. DUNNUCK: We've got five registered speakers. CHAIRMAN CARTER: Okay. Do we need to go to speakers? We need to go to speakers. We want to know what you -- who speaks and -- MR. DUNNUCK: Matt Grabinski followed by Rich Yovanovich. COMMISSIONER MAC'KIE: Matt, how would you feel about Page 36 June 20, 2001 if the Board of County Commissioners was the only authority that could remove the, quote, unquote, permit after a hearing.'? MR. GRABINSKI: With all due respect, we would still be uncomfortable for this reason: As you have all acknowledged, this is a vested right, and it was subject to new regulation last fall. And while you may be reasonable now, this year, we don't know who's going to be sitting in those chairs next year, the year after that, or five years from now or ten years from now. And if you do not put express unconditional language saying that the permit shall not be subject to suspension or revocation, you leave yourselves -- maybe staff can't do it, but Collier County leaves itself a back door to come in in the future and try to shut down the most valuable vested right that these beachfront hotels have, and it is something that they can just -- they cannot accept. COMMISSIONER MAC'KIE: But if they have a series -- I mean, what if we -- I don't know. Because I agree with your concept completely. It's just you're asking us to say in our code that we issue a permit that we can't revoke, and that's just illogical. So I don't know how to get around it. I'm -- I'm open. MR. GRABINSKI: Like you -- like you said, if you would feel more comfortable revising the code to change the name from permit to something else, whether it's annual beach event notification form, then do that. COMMISSIONER MAC'KIE: That's what it ought to be. MR. GRAB1NSKI: Then -- then let's rename that section of the code, and then you don't feel like you're issuing a permit that can't be revoked. Instead you're requiring commercial beachfront property owners to notify Collier County, submit an annual fee, and then submit them monthly notices, and you don't feel like you're sitting up there issuing a permit that you can't revoke. COMMISSIONER MAC'KIE: Is that possible to do in this Page 37 June 20, 2001 cycle, lawyers, county lawyers? I don't know who to call on. MS. STUDENT: That's Mr. White's -- CHAIRMAN CARTER: We've got three of them in the room. MS. STUDENT: He may wish to address it. COMMISSIONER MAC'KIE: Everybody's pointing like this. COMMISSIONER COLETTA: Everybody's got a specialty. COMMISSIONER MAC'KIE: The other guy. COMMISSIONER COLETTA: This is the turtle man. MR. WHITE: For the record, assistant county attorney Patrick White. Thanks again for the opportunity, Commissioner Mac'Kie. COMMISSIONER MAC'KIE: I'll give you a hard -- easy one. MR. WHITE: I believe that it would not be possible to do it in this round given that there hasn't been, if you will, adequate notice of the intention to revise the code in that manner. I believe, though, that there is some countervailing argument to what Mr. Grabinski brings to the table. And that is kind of-- as you'd said, maybe it's not illogical all alone, but also that -- assume that there's a mistake of fact in an application for, quote, unquote, a permit or there's something that we erroneously did in the issuance of that permit. I think, under those circumstances, we rightfully retain the opportunity to revoke that. ! admit that those are very extreme circumstances, but I can't think of any reason why we would want to otherwise take a permit. COMMISSIONER MAC'KIE: So maybe that's the language then. MR. GRABINSKI: Well, could I -- if I could just respond to Mr. White's concerns, I don't know if you've looked at the beach events permit, or maybe I should start calling it a notice form right now. It's about two pages long. It basically asks for the name of the hotel, its address, the actual property owner, and who's going to be the contact at the hotel. And then it asks you to check how many Page 38 June 20,2001 events you expect to have and submit a fee. Now, there are about five or six hotels in the county that this is going to apply to. And so I ask you to consider -- this isn't a type of permit that has pages and pages of conditions and information that the county needs to have in order to protect a valid interest. The purpose of this permit is to put you on notice so you can come and monitor the beach. I -- I would be hard pressed to find any type of technical inaccuracy or misinformation in a permit that would prevent Collier County from receiving its notices and going to the properties. If the permit says the Ritz-Carlton on it, is anyone going to really look around and say, "Well, is this really the Ritz-Carlton or should we have gone to The Registry instead?" COMMISSIONER MAC'KIE: I have a thought, that maybe there aren't -- there are no circumstances in which I would think that a -- even a hearing for revocation of this, quote, permit could get to the county commission sooner than a year from now. So I could live with the language that we can't revoke this permit for a year while we instruct staff to rewrite this business from being a permit to being a notification process. How would everybody feel about that? You get what you want for a year, but you understand that we're going to rewrite the whole thing, so it's not going to be a permit. MR. GRABINSKI: That's fine. After that it won't be a permit. It'll be a notice form. It'll still look and smell like it looks and smells right now, from our standpoint. The county is still going to get what it gets now, which is a fee and the notice. COMMISSIONER MAC'KIE: Which is all I care about. So, I mean, that would work for me. MR. DUNNUCK: If I could make a recommendation in that regards, you know, I don't have any problem with that, from our perspective. What I would recommend, though -- staff's spent an Page 39 June 20,2001 awful lot of time on this issue, and frankly, from our perspective, from the county's perspective, we have very little to gain on it. What I would recommend is that we require the hotels to go through the Land Development Code process and apply for it and they actually write the amendment, and we are in more of a posture of reviewing it as opposed to actually drafting it. COMMISSIONER MAC'KIE: Excellent. COMMISSIONER HENNING: That's a good idea. And can I ask, what is the history of fines or -- have we been charging fines before? What -- is there any kind of history of-- MR. DUNNUCK: I'll ask that Michelle Arnold come up and give you a quick overview of the history. MS. ARNOLD: For the record, Michelle Arnold, code enforcement director. We have not issued any fines lately because we kind of suspended and were just monitoring the situation at -- along the beachfront because we didn't know which direction we were going to go to. There has been violations that have occurred over the years, and there's been citations that have been issued to some of the hotels for failure to comply with a temporary use permit, such as in our special events sections of the code, as it was written before this annual beach event permit. COMMISSIONER HENNING: And violations of, like, leaving furniture on the beach and -- MS. ARNOLD: Yeah. It ranged from leaving furniture on the beach overnight to vehicles on the beach, you know, to transport some of the furniture for special events and those types of-- COMMISSIONER HENNING: Anybody digging up turtle eggs? MS. ARNOLD: No, not that I'm -- CHAIRMAN CARTER: They didn't have a turtle egg fry out there, to my knowledge. Page 40 June 20,2001 MS. ARNOLD: No. COMMISSIONER COLETTA: Shame on you. CHAIRMAN CARTER: Come on, folks. I guess that went over as well as my barbecued manatory (sic) story at The Conservancy. But anyhow, let's -- COMMISSIONER HENNING: Next speaker? MR. GRABINSKI: Do you have any other questions? CHAIRMAN CARTER: No. Next speaker, please. MR. DUNNUCK: Next speaker is Rich Yovanovich followed by Ed Staros. MR. YOVANOVICH: Hopefully I'm not going to snatch, I guess, what is it, victory from the jaws of defeat or vice versa. But, anyway, I don't even think you need a permit. You've -- you've adopted your regulations to limit what we can do on our property, and I assume we're getting to where we need to be. I just wanted to point out two things: One, the hotels are already paying for the monitoring of the turtles through the TDC funds. Okay. So they are already paying for the impact that they have on the monitoring issue. Second of all, I wanted to point out that what was presented to you was in no way intended to be an improper gift. It was an example of what the Edgewater Hotels and Boca Resorts hands to all guests that come in during the turtle season to show you that they are already trying to provide education to the residents as to the impact of the Edgewater Beach Hotel, which is beachfront, on the turtles so -- COMMISSIONER MAC'KIE: Even this? This is cool. MR. YOVANOVICH: Yeah. That goes out along with the nice chocolates. So the Registry, like the -- Boca Resorts, like The Ritz, does try to be proactive in letting their clients know what is going on during turtle season and to keep off the lights. COMMISSIONER HENNING: So this is not a gift. It's an Page 41 June 20, 2001 example. MR. YOVANOVICH: It is an example. But, you know, feel free to remm the chocolates to me. COMMISSIONER MAC'KIE: No, no, no. We need to taste the chocolates to fully understand the experience that they have at the -- MR. YOVANOVICH: It was an educational opportunity and not a gift. CHAIRMAN CARTER: Quit looking at me like that, Coletta. COMMISSIONER COLETTA: You really think it's a good idea for people to be eating turtles? MR. YOVANOVICH: I kind of had the same comment. COMMISSIONER COLETTA: Is that any kind of an example for our youth? MR. YOVANOVICH: But if you read the card that goes along with it -- COMMISSIONER MAC'KIE: That's really nice. COMMISSIONER COLETTA: Very nice card, by the way. COMMISSIONER MAC'KIE: Very nice. COMMISSIONER COLETTA: I appreciate the thought. MR. DUNNUCK: Ed Staros followed by Ron Albeit. MR. STAROS: Good evening, all. Last week -- two weeks ago it was, two weeks ago tonight, Mr. Coletta, you mentioned, on the same subject, what are we doing to educate our guests and so forth, so I went back and looked. And on the same subject, we do have an article about sea turtles in our in-room directory, which is a leather- bound directory in the guest room, followed up by an in-room letter that goes to each guest that goes -- talking about sea turtles as well as the mangroves. Then we also have a nature walk book for our guests that talks about the mangroves, the sea turtles, and the sea oats. We also have a newsletter that goes worldwide to all of our trade shows where there Page 42 June 20,2001 are the sea turtles, the dos and don'ts about sea turtles and the sea turtle season. And last but not least, we have a coloring book that we have for all the kids that come to the hotel, that we give to all the kids in the day camp, as well as outlets, as well as we give it to the local schools as well, Naples Park Elementary, Seagate, etc., so the children can learn about the manatees and the sea oats and the turtles, etc. So I thought I would just mention that since you asked the question last -- two weeks ago. COMMISSIONER COLETTA: I did, and that's a very good answer. COMMISSIONER MAC'KIE: And you have the good sense not to give it to the county commission. MR. STAROS: You can have them if you want, you know, but it might be a gift, so I don't want to do that. Thank you very much. That was my only comment. CHAIRMAN CARTER: Thank you, sir. MR. DUNNUCK: Ron's waiving -- CHAIRMAN CARTER: Next speaker waives. MR. DUNNUCK: -- followed by Ilene Barnett. MS. BARNETT: I'm also waiving. CHAIRMAN CARTER: Next speaker waives. MR. DUNNUCK: Michael Simonik followed by Kathleen Avalone. MR. SIMONIK: Good evening, Mr. Chairman, Commissioners. For the record, Michael Simonik representing The Conservancy of Southwest Florida. I think a lot of our substantive comments were made by Nicole Ryan at your first public hearing, so I'm not going to reiterate all of those. As you know, we've been working in good faith with the hoteliers on this issue for the past six months, and there are a couple Page 43 June 20, 2001 points that I do want to make, though. We do not believe that this language will be in compliance with the Comprehensive Plan. We've said that many times, and I'm just saying it again tonight for the record. Beyond that compliance issue, we also believe the suspension should remain in the language and that the fines are wholly insufficient to deter these -- any violations. COMMISSIONER MAC'KIE: But you understand there are legal limits, right, to fine amounts? MR. SIMONIK: Right. So let's change the limits. COMMISSIONER MAC'KIE: You know who to talk to about that. It's not us. MR. SIMONIK: The fines will just become a cost of business, then, so ... There's obviously a heightened awareness among the hotels. We've seen it tonight with the kind of education that they're giving their guests. And I believe that they're going to do their utmost to follow these rules when they pass, and at this point I don't think they dare mess up because they know we're all watching very closely. I don't agree that the permit is not a permit. I think it's a permit. That just came up today. But I don't think we should call it a notice. Let's continue to call it a permit. A permit comes with conditions and stipulations. This language has conditions and stipulations in it. It's a permit. I want to use the remainder of my time to share with you some of the thoughts of some of the children in the county. Our summer camp counselors talked to the kids this morning about sea turtles and ATVs on the beach. And they had their own thoughts on it, so I'm going to -- I'm going to submit these for the public record and read a couple of my favorites. Now, they may not have all the facts straight, but I think it would be good if some our groups go down to the Ritz Page 44 June 20,2001 and The Registry and have some tours, and they can get both sides of the issue. They got one today. Dear Commissioners, would you please help any -- well, any eggs from getting run over? Please don't -- please watch where you're going because you could run over turtle eggs. Dear County Commissioners, please don't pollute on the beach. It's important. Please don't use an ATV on the beach, and try to save sea turtles. Well, that's my opinion. Dear County Commissioners, I like ATVs, but I don't that ATVs should be allowed to drive over turtles' nests. My favorite part, no ATVs. Take a rocket. My favorite, don't drive an ATV if you want to be a Ph.D. COMMISSIONER MAC'KIE: That's you, Commissioner. CHAIRMAN CARTER: Young kids. The words of wisdom. MR. SIMONIK: That's my comments. Thank you. CHAIRMAN CARTER: Thank you, Michael. MR. DUNNUCK: Kathleen Avalone followed by Ronnie Poplock. MS. AVALONE: Hello. Kathleen Avalone, Citizens for the Protection of Animals. I'm sorry I don't have a chocolate example to give you, but I can provide you with a lot of road kill if you'd like. I'd like to just say that I don't understand this whole concept. If you can't revoke a permit or even suspend a permit, then what's the incentive for these people to adhere to the code? You need -- you need something. You need a bigger stick. This -- these fines that are in -- and I understand there are -- they're the maximum you can allow, but they're pocket change for places like The Ritz and The Registry. So I just want to urge you that -- urge you to really consider putting back into the language the suspension of permits, because it's obvious that the sea turtles are going to lose this battle. But we need Page 45 June 20,2001 to have a little bit stronger penalties for these people. Thank you. CHAIRMAN CARTER: Thank you. Next speaker, please. MR. DUNNUCK: Last speaker, Ronnie Poplock. MS. POPLOCK: Ronnie Poplock, Collier County Audubon Society. I guess I'd like to hear from a staff person to tell me and -- how the monitoring would be -- could be effective, how it would work. Maura, could you -- could you answer that, if you think -- well, how the monitoring could be effective, how it would work. COMMISSIONER MAC'KIE: The monitoring, you mean, like, in the morning, that they would look at it before -- MS. POPLOCK: For, you know, parties and events before the events would -- I'm -- I guess I'm not clear on how the monitoring by the county would be -- would work. And if-- I wanted to know if the staff thought it would be effective and if it would effectively work. MS. ARNOLD: Right now, as I indicated to the commissioners, we are monitoring based on the information that we're getting on a monthly basis from the hotels for special events. They provide us a monthly notice telling us when we're -- when they're going to have events, how many they're going to have, from what times they're going to be, and the size of the parties that are going to be occurring. So we'll go out and monitor the setup, and also we'll monitor the breakdown of the events to make sure that they're done in accordance with the guidelines that are provided. COMMISSIONER HENNING: Michelle, correct me if I'm wrong. Don't we walk the whole beach looking for turtle crawls and MS. ARNOLD: Well, there's a daily monitoring of our natural - - from our natural resources department. COMMISSIONER MAC'KIE: Do we do that on foot? MS. ARNOLD: No. COMMISSIONER MAC'KIE: What do we -- Page 46 June 20,2001 MS. ARNOLD: They use ATVs. MS. POPLOCK: The county uses ATVs. Okay. So I guess my final question to you would be, so do you think that there are -- there's enough staff to do this and that it would -- it would be effectively done? MS. ARNOLD: Well, what I can say is that the staff that I have, we will try to do it as often as we can. We're going to be using -- coordinating with the natural resources department because some of the events will coincide with their monitoring or some of the setup will be coinciding with the monitoring, so we're going to monitor it as best we can. MS. POPLOCK: Okay. staff?. CHAIRMAN CARTER: Can I ask one more question to the It's your time. Yes, ma'am. MS. POPLOCK: Thank you. Have you heard of violations up until now? Because I know Brad Cornell, at the last meeting, from the Audubon Society was mentioning violations that we have heard of. MS. ARNOLD: Well, during this sea turtle nesting season, we have not detected -- I haven't -- I'm not aware of any violations that have occurred. They're not using vehicles currently to set up and break down. They're doing it manually, and -- and they're doing it in accordance with the guidelines. MS. POPLOCK: Okay. Thank you. CHAIRMAN CARTER: Next speaker? That's it? MR. DUNNUCK: I believe that's it. COMMISSIONER MAC'KIE: I -- I don't know if a motion's appropriate, but what I'd like to do is accept the staff's proposals with the one change that the -- that Mr. Grabinski has requested and with the condition that the language describing this as a permit be reviewed by the hotel's attorney and brought forward for us to look at Page 47 June 20,2001 for the next cycle to make this more of a notice procedure and not a permit procedure. MR. DUNNUCK: And I think one other clarification for the record, what they were looking for in the language, is that -- that these penalties right now are resetting annually as opposed to -- as opposed to they keep going. So, like, if you had a penalty this year and you had a penalty in two years, that that wouldn't keep building upon the penalty provision. COMMISSIONER MAC'KIE: Let the penalties keep building. I don't -- I don't go for that. One violation this year, you don't get to start over again next year. Next year is your second violation if you do it again. And then your third, I don't care if it happens ten years from now, it's your third violation. COMMISSIONER COLETTA: Pam, that's kind of severe. CHAIRMAN CARTER: I can't go there. I really believe that it's an annual review. And, you know, 15, 20 years from now, Violation No. 3, I've got to pay that? I just -- I don't feel comfortable with that. COMMISSIONER COLETTA: I don't either. There's one other thing I was wondering. We know that it's a violation to harm a turtle nest, either intentionally or unintentionally. Is it -- does it state so in the notification or permit or whatever we're going to call this document, that if it does happen, that certain authorities have to be notified as a measure, just to make sure that if something does happen that's unforeseen that it's not passed over and we're trying to handle it on the county level rather than passing it on to the federal? MR. DUNNUCK: Well, I believe you have permits at stake at both levels, so they would be pursuing their violations; we would be pursuing our violations. COMMISSIONER MAC'KIE: But we would share the knowledge with them -- Page 48 June 20, 2001 MR. DUNNUCK: Correct. COMMISSIONER MAC'KIE: -- if we knew of a -- MR. DUNNUCK: Absolutely. COMMISSIONER COLETTA: But shouldn't it be stated so in the -- in the document that -~ that violation for this -- there is a violation where there's damage done to the nest or to the eggs or the sea turtles, that such an act would have to be reported? COMMISSIONER MAC'KIE: I think that's already in the law, state and federal. COMMISSIONER COLETTA: Is it? COMMISSIONER MAC'KIE: All over the place. Somebody correct me if I'm wrong. MR. DUNNUCK: I believe that's the protocol. COMMISSIONER COLETTA: Doesn't hurt to ask. MR. DUNNUCK: And I believe that's a protocol that we would follow. CHAIRMAN CARTER: I think if there's a situation, that state and federal do not limit it to a singular violation. I think they would look at case history of the -- of the offending party and would take that into consideration. So if there's a building up of problems, you're going to be in a lot more trouble than if it was the first time. It's, I believe, the way the process works. Ms. Murray. MS. MURRAY: Mr. Chairman, while we're on that subject, I did need to read one final thing into the record for -- that was changed. And that is, again, under the annual beach events permit section, a note that when a state permit is more restrictive than the LDC requirements, the state requirement shall supersede, and the county shall enforce these requirements. And that appears twice: Once in the regulations and once on the permit itself. CHAIRMAN CARTER: Okay. All right. Do we need to collectively, again, Counselor, or should we take this -- well, maybe Page 49 June 20,2001 we ought to, just for the record, take it singularly so everybody knows where we are, and then we'll do it collectively at the end. MS. STUDENT: Particularly on this one, if you'll make the finding of consistency with the comp plan since that was an issue. COMMISSIONER MAC'KIE: Well, I made a motion. I don't think it has a second. CHAIRMAN CARTER: I'll second it. COMMISSIONER MAC'KIE: Well, I don't think you want to because I didn't agree to -- I think the fines should be cumulative. CHAIRMAN CARTER: Withdraw my second. COMMISSIONER MAC'KIE: If somebody can explain to me why that's not the right way to go. As the lady said, this is pocket change to these big hotels. CHAIRMAN CARTER: Well, I think the state and federal review of these cases would accommodate that concern and -- versus MR. OLLIFF: Mr. Chairman. CHAIRMAN CARTER: -- making it cumulative. Yes, Mr. Olliff. MR. OLLIFF: Since we're coming back within 12 months with the -- the new process which will not be a permit, does this -- COMMISSIONER MAC'KIE: It makes it irrelevant, doesn't it? MR. OLLIFF: It makes this matter fairly irrelevant, and we can bring back some recommendations at that next amendment cycle. COMMISSIONER MAC'KIE: So I can suck that up for a year. CHAIRMAN CARTER: Okay. Then you want to make a straight motion? COMMISSIONER MAC'KIE: Yes, sir. I'll make the motion you like. CHAIRMAN CARTER: Don't put that burden on me. Just make your motion, and I will second it. Page 50 June 20, 2001 COMMISSIONER MAC'KIE: I've already made my motion, and I will add to it the restriction that Mr. Dunnuck read about the fines not being cumulative from year to year. CHAIRMAN CARTER: I'll second that. Any discussion? All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Opposed by the same sign. (No response.) CHAIRMAN CARTER: Motion carries 4-0. COMMISSIONER MAC'KIE: I'm sorry. But should we get the hotels' attorneys on the record saying that they agree to take on that responsibility for review and drafting of the code? I don't know which hotel or who, but I just want somebody to say they're going to do it. MR. GRABINSKI: Yes. Matt Grabinski for the record. I will take on that responsibility. COMMISSIONER MAC'KIE: CHAIRMAN CARTER: For? Excellent. COMMISSIONER HENNING: Will you take your candy? MR. GRABINSKI: For redrafting any portion of the code pertaining to -- CHAIRMAN CARTER: For which organization? MR. GRABINSKI: -- beach events. Beach events, vehicles on the beach, any portion of-- CHAIRMAN CARTER: Organization, please? MR. GRABINSKI: Ritz-Carlton. CHAIRMAN CARTER: Thank you, sir. COMMISSIONER COLETTA: Who's candy is this? CHAIRMAN CARTER: That's yours. COMMISSIONER COLETTA: No, it's not. CHAIRMAN CARTER: You get one. Page 51 June 20,2001 COMMISSIONER HENNING: Where are we at? CHAIRMAN CARTER: All right. Okay. Thank you. MS. MURRAY: We're up to the hearing examiner. COMMISSIONER MAC'KIE: I'm sorry. MS. MURRAY: Hearing examiner. COMMISSIONER MAC'KIE: I didn't do, though, what Marjorie asked me to do, and that -- and so should we make that finding separately now, Marjorie? MS. STUDENT: We can catch it at the end in a motion and just say all of them are consistent. CHAIRMAN CARTER: You keep good notes, Marjorie, and then you can give me the summary at the end. Thank you. All right. Ms. Murray. MS. MURRAY: The next item would be the hearing examiner, and I'm going to turn that over to John. MR. DUNNUCK: Well, I believe real quickly we'll just go to the summary of what we've changed previously from the last hearing. I think what we heard loud and clear from the board is that you want to take baby steps with regard to this issue. We went back, and the way we have it structured for your presentation today is that variance issues, under the hearing examiner, you make final decisions and, I think, with the acknowledgment that we'd probably want to do two hearings for that and we develop that in the administrative code. COMMISSIONER MAC'KIE: Is that in there, or is that something you're going to change? MR. DUNNUCK: That is something that would be changed at the administrative code level. COMMISSIONER MAC'KIE: Okay. MR. DUNNUCK: Second issue was conditional uses, and right now we have it as a recommendation to the Board of County Commissioners coming from the hearing examiner with the board Page 52 June 20,2001 making final determination. And we have withdrew the provisions regarding recommendations regarding zoning projects, at which it would stay at the board level and the Planning Commissioner and the EAC level until the board feels comfortable with the project, understanding that we're coming back with the public participation plan, where we have some opportunities to -- to ensure that the public is well notified of this process and educated, in September, October in a special Land Development Code cycle. COMMISSIONER MAC'KIE: Public participation plan and citizen advocate would have to be in place before this hearing officer kicks off, even for variances. MR. DUNNUCK: Absolutely correct. This is just one step. Nothing is implemented as of this evening. Until the Board of County Commissioners feels comfortable with the process, has developed a public participation plan, has developed the administrative code, and feels comfortable with the hearing examiner that they have chosen to hire, and that -- at that time the board would adopt a resolution implementing this program. COMMISSIONER MAC'KIE: So we have a conditional, conceptual proposal. CHAIRMAN CARTER: Yes. MR. DUNNUCK: That's correct. CHAIRMAN CARTER: Well said, conditional conceptual proposal with a lot of blanks to fill in. MR. DUNNUCK: With that, we have two speakers on the issue. We have Sally Barker followed by Janet Vasey. MS. BARKER: Good evening, Commissioners. For the record, Sally Barker. I'll try not to speak very long because, frankly, I can't speak very well. But I did want to thank you very much for the changes that you've agreed to in the hearing examiner program. They have made me feel much more comfortable with the program as a Page 53 June 20,2001 whole. And I wanted to thank Patrick White and John Dunnuck for the help and their willingness to listen to me and whoever else had problems with this. I just had one other point I wanted to bring up that -- and that was the testimony that comes before you, the commission, on recommendations from the hearing examiner. As the code is written now, it is restricted strictly to individuals who have prior spoken at the hearing examiner hearing. And I was wondering if your intention was to open that up to the general public. COMMISSIONER HENNING: My intention was to have as much public input as we can. MS. BARKER: I know this is a legal process and there are legal reasons for trying to restrict the testimony, but from a -- from the perspective of the public at large, of which I am one, I think it would probably be good to have as much public input as possible at these hearings and not restrict it to just those who had testified before the hearing examiner. COMMISSIONER MAC'KIE: For me, that is a question to be decided after I see what the public participation program is and after I see when and at what point -- I'm sorry -- when and in what manner the ombudsman, advocate, whatever, would come into play. You know, do we have -- is that on the table for decision tonight? MR. DUNNUCK: We would have to add that language in there. My recommendation would be, as you have an opportunity and would in the December cycle, should you want to add that at a later date in there regarding the public participation on -- COMMISSIONER MAC'KIE: No. No. My question is if we adopt what's in front of us, have we -- no, we haven't. I already know the answer. MR. WHITE: Mr. Chairman, if I may interrupt. Again, Patrick White, assistant county attorney. I believe if you'll look on the lower Page 54 June 20,2001 right-hand comer of your packages, it's page 56 of the June 20 agenda, you'll see a section referenced there known as 5.1.2 entitled "Public Participation." I believe the packages that you have on page 56 for Section 5.1.2, in the middle of that paragraph, if you will, the gray bar text starting with the words "The Board of County Commissioners" -- do you have that or not? COMMISSIONER MAC'KIE: Yes. CHAIRMAN CARTER: Yes, sir. MR. WHITE: I believe that that provision addresses the comments being raised. COMMISSIONER MAC'KIE: Let me just read it for you, Sally. MS. BARKFiR: Okay. COMMISSIONER MAC'KIE: "The Board of County Commissioners may, upon approval of a motion, elect to hear testimony or to receive other evidence from persons other than participants or their representatives who appeared before the hearing examiner subject to the foregoing limitations regarding comments on matters within the written record and new evidence." What does that last "subject to" mean? MR. WHITE: There is a statement in the sentence before that is a limitation, if you will, on the scope of matters that may be brought to the board at that second hearing, and it makes it the same as that limitation. That's all. COMMISSIONER MAC'KIE: But it sort of takes it and gives it away, doesn't it? I mean, doesn't it take it and -- MR. WHITE: What it does is give you the same -- COMMISSIONER MAC'KIE: Give it and take it back? MR. WHITE: It gives you the same thing that all of the participants, who are the folks who did appear at the hearing examiner, had as rights. Page 55 June 20,2001 COMMISSIONER MAC'KIE: Yeah. But that's not the issue that Ms. Barker was addressing, I don't think. MS. BARKER: No. Because there are individuals who may, for one reason or another, be -- not be able to participate at the hearing examiner's hearing who may want to participate in the hearing before the BCC. MR. WHITE: And this provision affords them the same exact rights that those participants at the hearing examiner would otherwise have. MS. BARKER: But are they restricted to just what was -- COMMISSIONER MAC'KIE: New evidence and corrections for the record? MR. WHITE: What was in the written record, yes. MS. BARKER: So they're still restricting it. COMMISSIONER MAC'KIE: And it's not really -- MR. OLLIFF: But at some point if you're making decisions based on the hearings that were provided through the hearing officer, I'm not sure how a hearing officer process works if you're going to simply allow, at the second hearing, a bunch of new evidence because then that's unfair to the hearing officer. So what we're trying to do to get around that process is, through the public participation process, to require two hearings at the hearing officer level. So what normally happens here at the county commission level is oftentimes the public doesn't -- or isn't aware of what the petition is until it hits the Planning Commission or the EAC. And then they become aware, and their antenna goes up, and then they show up here at the county commission meeting, and they know what the issues are at that point. We're trying to make sure that that same process happens, but at the hearing officer level, so that through the ombudsman, through the initial hearing, the public is made well aware. And then they are there for that second hearing protecting Page 56 June 20,2001 their rights to be able to be here in front of the commission for the hearing. COMMISSIONER MAC'KIE: And I, frankly, support that position and don't necessarily agree with Ms. Barker on this point, but I didn't want her to think that we were pulling a fast one. CHAIRMAN CARTER: No. And you have the whole public participation process in front of the hearing officer, which I -- which to me was -- conceptually, Sally, is giving us that opportunity to make sure we have done everything we can to get the people there who need to be heard on the subject. MS. BARKER: I appreciate that, and I appreciate the explanations. But, Tom, I thought the two hearings before the hearing examiner were just for those things like variances on which the hearing examiner would be making the final decision. MR. OLLIFF: No. We anticipate two hearings in front of the hearing officer for every item, period. MS. BARKER: Oh, great. That's wonderful. That answers a lot of my concerns. MR. DUNNUCK: And, really, you're only talking conditional uses at this point in time because we've withdrawn the zoning issues. COMMISSIONER MAC'KIE: But eventually, as we write up the code, we anticipate that we will have two hearings in front of the hearing examiner before it comes to the county commission. And that, coupled with the public participation plan, coupled with the ombudsman we are hoping is going to make for more opportunity, not less, for public -- MR. WHITE: And there is a safety valve in all of this, too, Commissioners, and that is that with respect to any issues that may, quote, be outside the record in front of the hearing examiner or not otherwise be new evidence, there's still the avenue of approaching each of you individually on the ex parte conversational level and Page 57 June 20,2001 having a discussion. And if you believe that there's something that was not properly considered, then I believe in your hearing for the final decision you would have the option to remand it to the hearing examiner for consideration of that matter. But, again, that reinforces and bolsters what Mr. Oliff has said, which is the whole intent of the process is to get all of the issues into discussion as early as possible so that they're considered by staff so the taxpayers' money is put to its best possible use and come up with the most appropriate decision. COMMISSIONER MAC'KIE: I think that's a really important point that, frankly, has been lost in this discussion, so I'm just going to say it again. That even after the two hearings in front of a hearing examiner and after the public participation and after the ombudsman, if a member of the public believes he's got a piece of information that is relevant, even then he can come to his county commissioner and say, "Here's what I think is really important." And then the county commission can say, "We're remanding this back to the hearing officer and instructing you to consider this piece of information before it comes to us for the final recommendation." So it -- the public's never cut out of the loop. MS. BARKER: The more safeguards the better. COMMISSIONER MAC'KIE: Absolutely. MS. BARKER: I have just one more point, and then I'll get off the subject. In that regards, the -- on page 30 of the current one, participation before the hearing examiner, the language says, "At a public hearing before the hearing examiner, all persons will be heard as participants; however, the hearing examiner has the right to refuse to hear testimony which is irrelevant, repetitive, defamatory, or spurious, and to establish reasonable time limits on testimony." When I met with Mr. Dunnuck and Mr. White yesterday, Mr. Dunnuck came up with language that effectively enabled the hearing Page 5 8 June 20,2001 examiner to control the meeting, but I felt was far less offensive to the public at large. Do you have that, John? MR. DUNNUCK: We have amended language, and I think Patrick can either pass that out or read it into the record real quick. All it does is really makes it more consistent with your current county commission ordinance that states the protocol for Board of County Commissioners meetings. It just takes it over to the hearing examiner. MR. WHITE: While I'm handing those out to you-all, if John would just read through what essentially -- or take a look at what the yellow text is. That's essentially what's replacing what you have in your packets presently. It's a mixture of both what we discussed in our meeting with Ms. Barker as well as what the actual board's provisions itself are in Article 2 pertaining to board meetings. And I'll hand you each a copy of that, if you'd like. COMMISSIONER MAC'KIE: Of this same language that's on the visualizer? MR. WHITE: Yeah. COMMISSIONER MAC'KIE: Frivolous, unduly repetitive, including impertinent or slanderous remarks -- that would be good if you could control the county commission. Who gets to tell us? Never mind. MS. BARKER: Should be used to slanderous remarks by now. COMMISSIONER MAC'KIE: And often frivolous and unduly repetitive. MS. BARKER: Those too. But I feel it's the public's, you know, right to be as repetitive and off the wall as they want to be as long as it isn't outright slander. COMMISSIONER MAC'KIE: I'd be satisfied with this language. MS. BARKER: Good. Thank you. And with that I'll get out of Page 59 June 20,2001 your way, and I look forward to participating in the public participation plan. Thank you. CHAIRMAN CARTER: Thank you very much, Sally Barker. We appreciate all your effort on this. I know you've worked hard, and I hope we've gotten where you think we need to be. Ms. Vasey. MS. VASEY: Thank you. Good evening. Janet Vasey for the record. I, too, have a problem -- some of the same problems that Sally has with Section 5.1.2 on the restrictions before having the public speak before the county commission. There will be times when people still will not know about issues. It happens in Lee County. Michael Simonik mentioned at the Planning Commission that he's dealt before the Lee Commissioner -- Lee County Commission before on zoning issues, and people show up, and they want to talk about an issue that's coming for final approval, and this language will not allow that to happen. I do appreciate some of the changes that you made on the ex parte, having that -- having the capability now to remand some of these issues to the hearing examiner, but it still doesn't change the fact that people will want to talk to you in public about some of these issues, and I think it's a big mistake to leave this section in. I think you should -- you should delete this whole section. Also, on the -- the language change that you've got up there, I think that's a good change too. I found that, in the original version, quite offensive. And, in addition, I believe Patrick White said at a Planning Commission meeting that in all the years that he attended the Lee County Commission meetings on this, only once did anybody -- once was that ever invoked to stop someone from talking. So it's not a really active big issue, and I don't think it should be overkill. Thank you very much. MR. DUNNUCK: You had two late speakers who gave me speaker slips. And it's at your discretion, but you have Michael Page 60 June 20, 2001 Simonik followed by Nancy Payton. CHAIRMAN CARTER: We'll take them both. Mr. Simonik. MR. SIMONIK: Thank you. How was I late? CHAIRMAN CARTER: That's not an issue. Just speak, sir. MR. SIMONIK: Michael Simonik for The Conservancy. I'm glad to hear today that there were some good changes made to this language. Good things happen when you go on vacation, I guess, at home and out. But I do believe that you have not yet removed the fatal flaw to this language, and it's been spoken by Janet and -- Ms. Vasey and also Ms. Barker. You have to allow the public to come to the BCC meeting at the final hearing. And if someone wants to speak, they're going to want to speak. And you're going to find that your constituents are going to be very angry with you when they get here at the BCC and cannot speak. Like Ms. Vasey said, I've watched it happen in Lee County. They're very disgruntled. It's not a good process. It's not open to the public. That, to me, is still the fatal flaw of this language. You're getting close on it, though, with two hearings and taking baby steps for now as we move into the hearing examiner. And generally The Conservancy, as you've heard before, we support this hearing examiner process. But not allowing the public to speak at BCC is a fatal flaw. Thanks. CHAIRMAN CARTER: Thank you, Mr. Simonik. Although I think, to my knowledge, Lee does not have a two-hearing process. Lee does not have this public partition -- participation. Lee does not have an ombudsman -- ombudsperson, excuse me. And I just believe that we need to let this evolve and continue to get public input. Ms. Payton. MS. PAYTON: Nancy Payton representing the Florida Wildlife Federation. And you just said basically what I was going to say. We're very different from Lee, and we're going to learn from Lee's Page 61 June 20, 2001 shortcomings and problems. And it's not that the public is not going to be able to speak before the county commissioners. They are going to be able to speak. There's some policies, there's some procedures, that are going to be taken in place. There's going to be a plan. But I still say, as I said two weeks ago, that we are going to have greater public involvement, and we're going to have a more educated and sophisticated public involvement in this program. And Florida Wildlife is dedicating itself to make sure that that public participation plan delivers that promise. Also, I wanted to comment that -- wanted to make sure that the staff was being instructed to move ahead with the public participation plan, the ombudsman description -- or however that program is going to be -- and the criteria for selecting the hearing examiner. And I think I did hear that. I just was a little bit unclear about the ombudsman, but I think that's -- MR. DUNNUCK: That's correct. MS. PAYTON: And one other comment -- kind of disjointed -- is that my understanding is that if I'm not able to attend one or two of the hearing examiner's hearings -- which we've recommended one be in day and one be at night so there's more flexibility -- that ! still have the opportunity to send an agent, that I can deliver my testimony. I can send an agent who represents me, gets me in the process, and I can come at the next hearing examiner hearing or I can come before the county commissioners, but I'm in the process. And that's something else that will be made known to people, that there is a way -- if they can't make either one of those meetings, there's still a way that they can get early into the process, and they can get their concerns on the record. So we're going to be looking at all different avenues, hopefully, so that this is going to be the best hearing examiner program, public participation, ombudsman program, in the -- in the State of Florida. Page 62 June 20,2001 And people are going to be looking to us as to how we ought to operate and deal with the public. CHAIRMAN CARTER: Hundred percent agreement with that, Nancy Payton. I thank you. Because that's where we want to be, the best of the best. We promised and we will deliver. MR. DUNNUCK: And for the record, that language is included in these provisions. CHAIRMAN CARTER: Thank you. Motion for -- COMMISSIONER HENNING: Question. CHAIRMAN CARTER: Question. COMMISSIONER HENNING: Is -- we are not -- the public can come to the BCC meetings and speak on a subject if they didn't speak on -- before the hearing examiner? MR. DUNNUCK: You will still have your public comment section as part of your Board of County Commissioner meetings, if I'm understanding the question correctly. COMMISSIONER HENNING: Right. Okay. CHAIRMAN CARTER: And they have access to you, Commissioner. They'll always have access to you. COMMISSIONER MAC'KIE: I'm going to make a motion to approve that subject to the change with the language that's on the visualizer in five five four about conduct of meetings. COMMISSIONER HENNING: And I just have another question. What is he going to -- the hearing officer going to do besides conditional uses and variances? I mean, we're going to be -- this program is going to cost around $200,000. COMMISSIONER MAC'KIE: Well, eventually we hope that -- MR. DUNNUCK: Well, I believe we can be very creative in how we hire that person. I think the 254,000 -- when we go back and actually are looking at a hearing examiner, whether we use a contract or whether we actually hire a person in here full time, we can take a Page 63 June 20,2001 look at those things, and we'll be bringing that back to the Board of County Commissioners at a later date. COMMISSIONER HENNING: So a hearing examiner would be working for us under contract? MR. DUNNUCK: We could potentially -- COMMISSIONER HENNING: And could he work for developers in -- CHAIRMAN CARTER: No. MR. DUNNUCK: Those are stipulations that I'm sure that the Board of County Commissioners would support in not allowing. COMMISSIONER MAC'KIE: And none of that will happen without our vote anyway. MR. DUNNUCK: Correct. CHAIRMAN CARTER: We have the ultimate control, Commissioner Henning. And I think we need to develop that, and then it'll all come to us and look to staff to say based on everybody's consideration at this point, contract, full-time employee, but they cannot have any association with or represent anyone, any entity that would cloud their thinking in this process. I mean, that is a very hard-and-fast rule. MR. DUNNUCK: County Commissioners. Mr. Olliff. And the person will work for the Board of It'll be a contract similar to Mr. Weigel or COMMISSIONER HENNING: So we're going to hire a litigator to do land use items? Anyways, I will second the motion. CHAIRMAN CARTER: Okay. I have a second by Commissioner Henning. Any further discussion? All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Opposed by the same sign. (No response.) Page 64 June 20,2001 CHAIRMAN CARTER: Motion carries 4-0. Thank you. COMMISSIONER HENNING: You got it, David, didn't you? (A discussion was held off the record.) CHAIRMAN CARTER: A little break. Take ten. (A break was held.) CHAIRMAN CARTER: Let's go live. All right. Ladies and gentlemen, we're back in session. Mr. Dunnuck and Ms. Murray, if you will continue and take us forward. MS. MURRAY: Commissioner, at this point I'd recommend that we go to the boat dock facilities, which is page 99. That's the next item which we have a number of registered speakers to speak on. I'll just refresh your memory. Last hearing Tony Pires got up and put a number of items on the record, and he actually sent us some correspondence. And staff took a look at his correspondence and responded to the extent that we felt we agreed with it. And I have a staff member, Ross Gochenaur, here who would just like to summarize for you the three areas where we have a little bit of a problem with the language that he proposed and why, and then I'd recommend you go to public speakers after that. CHAIRMAN CARTER: Okay. MR. GOCHENAUR: Good evening, Commissioners. For the record, Ross Gochenaur, planning services. CHAIRMAN CARTER: Good evening, sir. MR. GOCHENAUR: As you know, at the last hearing, Mr. Pires made a few comments on our proposed amendments primarily relating to the changes in criteria for boat dock extensions. We revised our criteria in response to these comments. We agreed with some; we didn't agree with others. And yesterday he sent us notification that there were mainly three points that were still of contention. What I'd like to do now is briefly recap what we think Page 65 June 20,2001 those are and our position on those matters. First, with regard to being more specific about the advertising for public hearing, we've agreed with that. We've included language. However, Mr. Pires would like to guarantee that the property owners receive their letters of notification no later than 15 days prior to the hearing. We can't really guarantee what the mail is going to do. Currently we send out these letters 20 days before the hearing, and normally people receive them around 15 days prior to the hearing. So I think the current language covers that as much as we can afford to guarantee. A second issue, Mr. Pires objects to the use of terms "marked" and "charted" to describe navigable channels. One of the criteria indicates that the proposed dock should not interfere with navigation in a navigable channel. We originally wanted to use simply marked, and that was changed later to marked and charted in an effort to define as clearly as possible what the petitioner is expected to provide us. There are only two ways I know of clearly marking a navigable channel, and that's with navigational markers or on charts, which most boaters carry. So I do feel that we ought to stay with that particular language. The third point of contention -- and ! think this is the main point -- is with regard to view as criterion for a boat dock extension. We're responding in this amendment to comments, numerous comments made by members of the Planning Commission and also by -- in response to our experience in presenting boat dock petitions. We find the two existing criteria with regard to view just impossible to evaluate objectively, and what we're looking for here are clear objective criteria that the Planning Commission can use to make a decision based upon competent and substantial evidence and also that members of the public can clearly understand what they have to expect or what they must provide us in order to get a boat dock Page 66 June 20,2001 extension approved. We do feel that we should stay with the language that restricts the impact on view to that of the abutting property owners because they're the most affected by the entire procedure. If you disagree with this use, as Mr. Pires does, I might suggest that you consider either the term "adjoining" or, if necessary, the term "neighboring," but surrounding we just feel is much too broad. Everybody is surrounded by everything, and we feel that the neighbors most closely affected should be the ones that -- whose input we and the Planning Commission consider most seriously. CHAIRMAN CARTER: See, my -- and I think my point on this, sir, would be if I live on a waterway, canal, and I think neighboring would encompass that, because if I live across from this proposed situation, I think I would have as much of a right for input as a person who lives on either side of it. But I don't want somebody six waterways away coming over and saying, "It's blocking my view." COMMISSIONER MAC'KIE: But, Commissioner, how -- if you and I live across a canal from each other, how can my dock interfere with your view? CHAIRMAN CARTER: Well, I'm sure Mr. Pires will have an answer for that. COMMISSIONER MAC'KIE: I mean, it seems to me it's abutting and nothing else. I don't see why -- COMMISSIONER HENN1NG: Let me ask -- so if I want a boat dock extension and the obstruction might come into play, if my neighbor has a boat dock without an extension and it's obstructing my view, can I ask him to tear it down? MR. GOCHENAUR: No, sir. COMMISSIONER HENNING: Huh. MR. DUNNUCK: With that, it may be appropriate to go to Page 67 June 20,2001 speakers. CHAIRMAN CARTER: Public speakers. MR. DUNNUCK: Anthony Pires followed by Diane Holds (sic). MR. PIRES: Mr. Chairman, Members of the Board, Tony Pires with Woodward, Pires & Lombardo. And I've had the pleasure in the last few months of doing a number of these boat dock extensions before the Planning Commission and the board. I might become a -- CHAIRMAN CARTER: Yes, sir. I'm feeling like a pen pal. MR. PIRES: But I think it's an important issue for communities who are severely affected by the applications for these boat dock extensions. And the query is how, if I live across a canal or a water body, am I affected? I think that was addressed in one of the petitions that this board reviewed in which the board upheld our appeal -- we're not in litigation; nobody ventures one -- for the individuals who probably had the greatest adverse effect on their view. I'm not sure if this is working or not. In that particular instance, the applicant was proposing a boat dock extension in this direction. The -- these two parties, these owners, are not abutting, but they are, in fact, surrounding property owners. This -- these individuals would not have had any opportunity to provide any input, nor would any staff or Planning Commission decision or recommendation have had to take into account any of their input. And the same can occur over here. We have these property owners. And, in fact, to show the impact, this was in the Liberty Ventures. It's upside down. This is taken from the dock of a nonabutting, nonadjoining but, by golly, a surrounding property owner. That's what the dock extension request would have provided, for a dock to go across that view of this property. So I think it is significant to keep surrounding versus abutting. Page 68 June 20,2001 And I'm wondering what's the impetus for this change? I mean, it's been around for a long time. All of a sudden now we're starting to make it easier, quite frankly, for the extensions to be granted. That's my concern and the concerns of some other individuals you may hear tonight. What's the rationale? What's the impetus? I know Mr. Gochenaur indicated that that's a very subjective criteria. But it's just as subjective -- if you want to call it subjective -- as the other criteria that talks about you don't want to have excessive dock surface area. Now, what's excessive in that particular context? So I think, frankly, that it needs to be -- the surrounding property owners still need to be protected. I think this board has a great sense of direction that the community needs to be protected, the values need to be protected, allowing individuals to use their property. If somebody wants to ask for an extension, listen to those who are affected. That is the surrounding property owners. As far as charted, marked, navigable channels, again I query, what's the reason for that change? I'm not much of a navigator or boatsman, but how many channels are marked inside Vanderbilt Lagoon? Who's charting it? Is it the Coast Guard? They probably don't chart once you get inside that particular body of water. Leave it to navigable channels. There are some navigable channels that are just known by local knowledge and by usage. They may not be on any chart, may not be marked at all. So I think that using that term "marked" or "charted," again, is geared towards making it easier, quite frankly, to get an extension, and I think these terms need to be deleted. And as far as mailing out the notice, if it's mailed out in 20 days, I think that's a very good time frame. As an aside, I think this board may want to, in the future, look at the policy that was adopted a number of years ago. Quite frankly, it's frightening. When you get a notice of an item before the Planning Commission, usually you get it Page 69 June 20,2001 8 to 10 to 12 days beforehand, and it says you need to have your materials in, you know, a longer -- a long time before the Planning Commission. That doesn't give people adequate time in which to hire a planner, hire an engineer, hire an attorney to get documents in. I've raised this issue before with the prior boards, but I'm going to raise it again, just to let the process be a little more flexible. The Planning Commission is very good about taking testimony and evidence, but the notice can scare people away and has, in fact, scared people away from participating at the Planning Commission level. I've talked to a number of people. COMMISSIONER HENNING: Tony, where's that, which section? MR. PIRES: The part about the notice? COMMISSIONER MAC'KIE: Charted. MR. PIP, ES: Charted? That appears in the proposed Section 2.6.21.3.1.3, and that is on -- COMMISSIONER MAC'KIE: Top of page 124 of our packet, 108 -- you've got it right there. COMMISSIONER HENNING: not looking -- One twenty-four here. You're MR. PIRES: Page 108. That's correct. And one other note, as far as the reason I only responded, I think, on the 18th to the most recent revisions, I did not receive them until last week when I asked for them. But I tried to respond back as promptly as I could. COMMISSIONER MAC'KIE: But, Tony, that does say "marked or charted," not "marked and charted." MR. PIRES: Well, there are -- once again, there are navigable channels that aren't marked or charted, but I just think leave it at navigable channels, which exists today. COMMISSIONER MAC'KIE: But the only new words we're adding is "or charted." Page 70 June 20,2001 MR. PIRES: Marked. Marked wasn't there before. The word -- neither the word "marked" existed nor the word "charted" existed in the existing code. You're looking at a revision to the prior -- COMMISSIONER MAC'KIE: I see. Revision to the revision. MR. PIRES: So the existing language does not reference marked or charted. COMMISSIONER MAC'KIE: The only reason I like that language, and I don't think it's -- would make things simpler; I think it would make things more measurable. And there's so much that's difficult to define in this area. Like you were saying, there's so much that's subjective that it would be nice to have one objective criteria in is it a known channel. MR. PIRES: Well, I think you can get testimony and local knowledge and local history from those who use the waterways as to where the navigable channels are. COMMISSIONER MAC'KIE: But, you know, the last time you were here, there were people arguing over where the channels were. MR. PIRES: They weren't marked or charted, but yet they did affect navigability as to where the extension was requested to be located. COMMISSIONER HENNING: I think Mother Nature is going to change that anyway. MR. PIRES: That's very true, so that's what makes it more difficult for the marked and charted. We'd ask that neither one of those two terms be utilized. And we think view is a -- also should be a primary criteria and not secondary. I think if you're a property owner that lives on the water, that's a major aspect of living there. And to make it a secondary criteria, I think, gives short shrift to that particular aspect of that property ownership. COMMISSIONER HENNING: And I disagree with that Page 71 June 20,2001 because I think that people would want to live on a canal -- the reason they want to live on that canal is to have access to the water via boat. Otherwise, you know, they'd be on a golf course. MR. PIRES: Well, that and the view, I think. But, once again, we -- I ask that -- CHAIRMAN CARTER: So, Commissioner Henning, you would prefer what kind of language? You're a boater. I defer to you. COMMISSIONER HENNING: Well, I think that the biggest criteria that we need to have is to make sure that the water is navigable and there's not a safety concern as far as with the boat dock extension, if it's going to be encumbersome (sic) to navigate two boats around the boat dock extension. CHAIRMAN CARTER: Thank you. MR. PIRES: Thank you very kindly. CHAIRMAN CARTER: Thank you. Next speaker, please. MR. DUNNUCK: Diane Holds followed by Ben Nelson. COMMISSIONER MAC'KIE: Diane had to leave? CHAIRMAN CARTER: She waives. MR. DUNNUCK: Ben Nelson followed by B. J. Savard-Boyer. COMMISSIONER MAC'KIE: That would be the Honorable Ben. MR. NELSON: Not tonight. Thank you. It's a pleasure to be on this side of the podium for a change. COMMISSIONER MAC'KIE: I bet. MR. NELSON: I'm here to speak in favor of Ross's suggested revisions to this, and I'd like to comment on some of Commissioner Henning's comments. The primary reason, I feel -- and I've lived in Florida for 45 years. And the primary reason, I feel, people choose to live on the waterfront is for access to the water. The canal network in Florida wasn't built so that people could get a view of their neighbors' backyards or whatever. The canal network in Florida was built so Page 72 June 20, 2001 people could have access to the waterways. I think the primary considerations in here should be the navigability and the safety issues. So far as the view issues, if you want -- if view is a major consideration in docks, why not make it a major consideration when you're building houses? You know, if you build a house and it gets in the way of your view of the neighbor's house next door or the street down the way, you can't build a house there. Well, I think that it's quid pro quo in this case. So I -- I would think that -- that what you need to consider here is to support staff's revisions. They're fair, they're reasonable, and they afford the reviewer and the concerned parties accurate information so they can make that determination. There's some added expense there, but we've all agreed in the industry that it's important for you to have that information and to have accurate information so you can make the determination. Thank you. MR. DUNNUCK: B. J. Savard-Boyer followed by Rocky Scofield. MS. SAVARD-BOYER: B. J. Savard-Boyer. I live in the Vanderbilt Beach area. You've seen me here several times before with this dock facility thing. Everybody does live on a canal because they want to have a dock, and they want to have a boat. I mean, that's why we moved there. And most of the people there do have docks, and most of the people there have 20-foot docks. However, in the last year we've had several dock extension proposals, and some of them have, you know, succeeded, and some of them haven't. The one that Mr. Pires showed you with our neighbor the Griffiths across the way, we did meet with the developer, and we came to an agreement. They would not have had any view. They have lived there since the early '70s. They had a boat and whatever. So they're -- they would not have had a view of Page 73 June 20,2001 the lagoon. Most of the canals have docks on each side, and we don't -- we're not worrying about views. We're worrying about the open bodies of water, the -- it's a sensitive area there. You all know that it's a sensitive area. It's not very deep in the middle. The people that want the dock extensions are going out into the lagoons. I fail to believe that it would not hurt navigability. We don't have 60-foot docks there right now. ! think the longest dock out there is maybe 30 to 40 feet. I'm not sure. The other thing with this view is why do we have to change it? Why can't we leave it surrounding.`? I mean, why.`? How many people have come before you and asked that their view be preserved other than the Griffiths? The only -- the only reason the other dock facility was brought here was not specifically for view; it was for the fact that it sticks out so far in the water and it will hurt navigability no matter what you say. And it's also going to hurt our manatees that come in there and flock around. But that's been dropped. I truly believe that the wording has to stay the way it's been. I don't see a necessity to change it. And if you do change it, we're only going to be up here more than we've been here before. The other thing, that those bodies of water are zoned sensitive -- single-family and sensitive treatment, which is regulations to preserve and protect environment sensitive lands. Why in -- in the code are all of the dock extensions in -- the wording in the same codes.`? In other words, for Keewaydin Island or for Isle of Capri or for Goodland or all of those, they are open bodies of water, are they not.`? I mean, they are open bodies of water, aren't they.`? Can anybody tell me they are or they aren't7 MR. OLLIFF: Some are, some aren't. Some are canal communities. Isle of Capri is primarily a canal community, and others are open-bodied waters, so it's different wherever you go Page 74 June 20,2001 throughout the county. But the idea of a Land Development Code, unless there is a specific overlay, is to a standardized code that hopefully is practical from one end of the county to the other. I know where you're going with this. MS. SAVARD-BOYER: Well, the thing is that we have small bodies of water, as far as I'm concerned, and it -- and it is sensitive. It doesn't have a flow through. We're -- Vanderbilt Lagoon is at the end of the whole thing, and then -- and then it has to go back out through Wiggins Pass. We're going to have a lot of docks in there, as you know. The future for The Regatta is 56 docks. I know I'm not here to talk about that, but what I -- what I mean is they're going to be -- there's going to be so much traffic in there, if we have docks sticking out all over the place, I don't know where all these people are going to navigate. And why can't we have an overlay of Vanderbilt waters? I mean, why can't we have a different wording for them? Is that not possible? Can anybody answer me? CHAIRMAN CARTER: Mr. Dunnuck? MR. DUNNUCK: Well, I believe it's possible. What I would say is that you do have provisions in that current code that do restrict the navigab -- nav -- I'm going to get it a tongue twister here -- the navigability of that waterway to ensure that everybody can safely access the water. CHAIRMAN CARTER: And as we do the study there, would that be an appropriate inclusionary item along with everything else we're looking at? COMMISSIONER HENNING: I kind of like the language that -- as long as we're not presenting a safety problem, let's afford everybody the same rights, and that is the use of waterways. COMMISSIONER MAC'KIE: I agree. COMMISSIONER COLETTA: That's right. You can't take Page 75 June 20,2001 away people's property rights. COMMISSIONER MAC'KIE: That's right. COMMISSIONER HENNING: I do have -- CHAIRMAN CARTER: Miss Student. MS. STUDENT: I will say that -- for the record, Marjorie Student, assistant county attorney -- that there are riparian rights that are pertinent to property. And so, therefore, individuals have to be able to utilize those riparian rights, and one of which is access to navigable water. COMMISSIONER MAC'KIE: We went to law school to be able to say riparian rights, so we have to use that in -- CHAIRMAN CARTER: We need to let Ms. Boyer finish if we've answered your -- MS. SAVARD-BOYER: No. I just feel that the wording last year was tolerable, and I think there isn't any necessity to change it. And if I could find out how to get special treatment of our water, I would be glad to go in that direction, and I know I'm not getting an answer tonight on that. But I think it should just be left the way it was last year. Nothing was hurt. People got their extensions if they wanted them. We didn't take up too much of your time. Thank you. CHAIRMAN CARTER: Next speaker, please. MR. DUNNUCK: Yovanovich. MR. SCOFIELD: Rocky Scofield followed by Rich Rocky Scofield for the record. I'll have to say I agree with B. J. On that last comment. I have no problem with the way it was. The fact that we're here tonight is the cumulative effect over the past year and basically because of Mr. Pires's comments. Now, every time we've had a hearing, Tony has picked apart every word. He has challenged everything, and everything has always boiled down to view. View is subjective. I don't care if-- people can always come here, and they can voice their opinion on Page 76 June 20, 2001 view, and they can show pictures; that's afforded them. But this whole thing, this code has changed. The staff has done this, and this is all because of the turmoil and all of the -- you know, the stuff we've gotten into on these petitions and at Tony's insistence. Now they want to have it both ways. They want to have it changed. Well, the staff has worked hard to change a lot of things that they've wanted changed. It's made it a lot tough -- it hasn't made it a lot tougher; it's made it a lot more work and a lot more cost to the owners. As of January this year, the fees were changed on the extension from four twenty-five to a thousand twenty-five. That's the application fee because the staff has got more work to do. If this kind of stuff goes on, it's going to go up again. My fee has tripled to my clients, after these new effects go in. Now, you know, you have to prove -- excuse me. Safety and navigation are the utmost concerns. Those things are always proved. Now we have to go out and have to hire a surveyor. There's another thousand dollars added on to this application process right now. It's a thousand dollars. The surveyor has to do all the water depths. We've been getting that done if we know there's any contention in the petition. They have to survey the adjacent properties. If there's docks there, prove there's no navigation problems there. We're just adding, adding, adding, and I don't know where you stop. Now they've come here. They want this change, they don't want that change, they want to go back, they want new stuff. I don't know where they stand. I was fine with the old way. But I'm here to tell you, staffs worked hard. I'm okay with it. It's added a lot of work for me. That's fine. It's more money for me. Unfortunately, it's a lot more money for homeowners to go through. So I support the staffs changes that they've done. I've already instituted a lot of those changes, and the wording that they Page 77 June 20, 2001 have is fine. I have no problem with it. If you have any questions, I'd be happy to answer them. COMMISSIONER HENNING: I guess I have a big one. What -- who initiated this change? Was it from outside or from inside? MR. DUNNUCK: Actually, I believe it was through discussion with the Board of County Commissioners regarding several of the boat dock issues and probably the appeal. The board had raised some questions regarding water depth and how we'd prove it and who the burden of proof should fall upon. The staff took that as an initiative to look at the Land Development Code a little bit more closer and bring back these amendments. COMMISSIONER MAC'KIE: I personally think that, you know, it's an improvement. It's making things more quantifiable, more measurable and less sort of, you know, the good ole days when we could do things based on because everybody knows how the waterways are. We're past that now, and we have to do this a lot more measurable. And it's too bad that we are -- have to be more regulatory, but I think the staffs proposed a set of documents -- I mean, a set of regulations that'll be copied all over the state. MR. SCOFIELD: Yeah. And, you know, when it -- when you boil down to it, if it's being contested, the -- everything that we have to go through to prove it, our point, is going to be there. Now, the facts are the facts. The only thing that isn't a fact is view, and view is in the eye of the beholder, and it's always going to be that way. So, you know, whether we have the old set of rules or the new set, it's basically -- to me, it boils down to the same thing. You've got a word changed here or there. But if I have a dock that may be impacting navigability, I have to go out, and I have to prove it doesn't. I have to go out and do the water depths. I have to show there's plenty of room to go around or that there's a channel here or a channel that locals used to use. They say we can't go anywhere else. Page 78 June 20,2001 Well, if I can prove to them that there's a lot bigger area they can use by having it professionally surveyed, then those are the things we have to do. And those are -- those are items that will also be brought up when we have, you know, a contended petition. So I support -- you know, I'd rather it be back the old way, but we've gone through this much, and we've added all this. And I support what the staff has done, and it's fine with me. MR. DUNNUCK: Your final speaker is Rich Yovanovich. MR. YOVANOVICH: Again, for the record Rich Yovanovich. Fortunately -- or unfortunately -- I've had the pleasure of appearing before you on a few boat dock appeals myself. And I view what the staff has done as an effort to quantify the issues that were perceived as loopholes in the past, making -- making the application more complete, providing greater detail on the potential vessel that will be there, greater detail on the water depths by requiring surveys. You know, I think the -- the changes that staff agreed to by -- agreed with Mr. Pires on are -- are good changes, makes the process better. And actually the burden of proof has always been on us. As Commissioner Mac'Kie said, you know, riparian rights are rights that adjoining property owners have to use the water. When you buy on the water, you have the right to use the water. Now, naturally it's subject to reasonable regulations of the government, and I think that your regulations, as proposed by your staff, are reasonable. You're concerned primarily with safety and navigation, where everybody is concerned with safety and navigation. View is an issue, but it's not a primary issue, in my opinion. And I don't think it's a primary issue when you -- the only case I could find that's similar to what we're talking about on view dealt with an eminent domain case in Lee County where the county built a bridge and blocked 80 percent of the property owners's view. And that property owner brought a lawsuit for inverse condemnation Page 79 June 20,2001 claiming that they took their ripdrian right to a view. There's no doubt that you have a riparian right to a view. It's not a right to a totally unobstructed view. And I think we should use the language in this case to help better define what we're looking at as view. And I'd like to read to you what the Court says. It says, "Owners of uplands along navigable waters enjoy common law riparian rights, one of which is the right to an unobstructed view over the water to the channel. These rights can constitute property which the government may not take or destroy without paying just compensation." What was the standard that they applied? They applied a standard that said the impact must be -- it must substantially and materially interfere with and disturb the view across the waters. The standard is substantially and materially interferes with, and the Court recognized that's a case-by-case analysis. And in this case they said an 80 percent effect on the view was material and substantial. I think you need to put those words in there. Rephrase 2.6.21.3.2.4 to read whether or not the proposed facility substantially and materially interferes with and disturbs the view across the water of abutting property owners. That's the standard. If we substantially and materially interfere and disturb their view across the water, we should not -- it should be considered and factored in the approval. It's good enough for the Court. It's the standard that's applied to governments when they are building their facilities. It ought to be good enough for the private sector when using their property that abuts the water. So that's the one change I would make to the provisions that staff has submitted. Again, we are not trying to make it easier; we're trying to make it more measurable because, you know, it's a standard that my clients have to meet. They need to know that they've met the standard and that they're entitled to the extension. We need to have some certainty Page 80 June 20,2001 in this process. We're trying to make it as objective as possible. Candidly, I'd love for you to eliminate view altogether, but I know you can't. But all these cases boil down to, as Rocky has said, view. They try to couch it in other terms, but we always provide evidence that we're not affecting navigation when we go through with our permits and requests for extensions, so we have to couch it in other areas. But it always comes down to what's really happening, impact of view. I think the suggestions I made provide greater assurance to the public and provide greater assurance to the property owners adjoining the waterways as to what the measure of standard will be as far as view goes. And with that one change, I would support staff wholeheartedly in the revisions they've made, and I think that they've done an admirable job to incorporate comments that were both before you on various appeal issues and before the Planning Commission on various permit issues when they were the fact finder. Unless you have any specific questions, I'll sit down. COMMISSIONER HENNING: Does anybody have some heartburn with increasing the notification time? It says 15 days, and I think Mr. Pires brought up a good point of, you know, doing research and if they feel like they need to hire a lawyer, is to increase that to 20 days. COMMISSIONER COLETTA: It's already 20 days. COMMISSIONER HENNING: Well, this is 15 days, isn't it, 15 days in advance from the hearing? Second posting of the signs, it just says 15 days. MR. YOVANOVICH: It's mailed 20 days. I don't know how you guarantee any certain time period for the receipt. COMMISSIONER HENNING: Well, no. Let's just -- MR. YOVANOVICH: I mean, if you want posting -- if you want to post the property 20 days, I don't think that's a problem. Page 81 June 20, 2001 COMMISSIONER HENNING: Well, and send out notification 20 days in -- MR. YOVANOVICH: Mail the notice 20 days? COMMISSIONER HENNING: -- twenty days in advance. MR. YOVANOVICH: That's what they do already. COMMISSIONER HENNING: Oh, it is? MR. YOVANOVICH: Yeah. COMMISSIONER HENNING: And right now it's -- but here it says 15. MS. MURRAY: Twenty days, I believe; is that correct, Ross? COMMISSIONER HENNING: I can't see it very well, then. MR. PIRES: Commissioner Henning, I think that Mr. Gochenaur indicated that they mail it 20 days. Susan mentioned that. But the ordinance proposed does say 15, you're correct. It does not say 20. MS. MURRAY: I'm sorry. What page are you looking on? COMMISSIONER HENNING: It depends on which page number you -- MS. MURRAY: Handwritten page number. CHAIRMAN CARTER: Handwritten number, Commissioner. COMMISSIONER HENNING: One twenty-three on the lower right, is that what you want? It is 2.6.21.3. MS. MURRAY: Okay. I'm sorry. It says "at least 15 days in advance." Our technician tells me it's mailed out 20 days in advance typically. COMMISSIONER HENNING: Well, let's put 20 days in there. MS. MURRAY: That's fine. We don't -- MR. YOVANOVICH: That's fine with us. COMMISSIONER HENN1NG: At least 20 days. Two years, 20 days, what's the difference? MR. YOVANOVICH: Two years may be a little bit much, but Page 82 June 20,2001 20 days certainly is fair. MR. PIRES: Mr. Chairman, if I may just have a brief moment. CHAIRMAN CARTER: Yes, Mr. Pires, if you please. MR. PIRES: Just I'll be real brief, only because there was the implication or inference left by Mr. Scofield that I asked for these changes to be made to the code. That could not be farther from the truth. I've had no input, wasn't called, had any suggestions. My only involvement was before this board in that first group that came two weeks ago before this board for consideration. I think it should be left as it is. We've not asked for any changes. You know, once again, I'm -- and I differ with any impetus for changes. Leave it alone, I think, would be a very good action or nonaction by this board. I think that's what the community is -- CHAIRMAN CARTER: Marjorie, do you have a comment? I saw that look in your eye. MS. STUDENT: No, not really. If it had gone, maybe, in a different direction, I would have. I have -- I have some case law here about view too, but I think it's been adequately covered. CHAIRMAN CARTER: Thank you. COMMISSIONER MAC'KIE: Motion to approve staff's recommendation. COMMISSIONER COLETTA: Second. CHAIRMAN CARTER: I have a motion by Commissioner Mac'Kie. I have a second by -- COMMISSIONER MAC'KIE: I'd like to add -- CHAIRMAN CARTER: -- by Commissioner Coletta. COMMISSIONER MAC'KIE: I'm sorry. I'd like to amend my motion to change the 15-day notice to at least 20-day notice. COMMISSIONER COLETTA: And I second -- I'll put that in in my second. COMMISSIONER HENNING: And what about the view? Page 83 June 20,2001 Where do we stand with that? MS. MURRAY: Staffs recommendation was adjacent. CHAIRMAN CARTER: Adjacent properties only. COMMISSIONER MAC'KIE: It's good enough for me. That's the way my motion's going to go. CHAIRMAN CARTER: It's what the motioner said. All in favor -- any further discussion? COMMISSIONER MAC'KIE: Did I get a second? CHAIRMAN CARTER: I've got a second by Commissioner Coletta. All in favor signify by saying aye. COMMISSIONER COLETTA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER MAC'KIE: Aye. MR. DUNNUCK: If we can keep this thing moving, we have three speakers left on three different issues. CHAIRMAN CARTER: Yes. In regards to -- where do I think we are on the last one? COMMISSIONER MAC'KIE: Well, let's just call the three speakers if we could maybe. CHAIRMAN CARTER: Well, I -- you know, I haven't cast a vote on the last motion yet, Commissioner. I'm sorry. At this point I'm going to say no because I want -- I hear enough out there that tells me leave it the way it is. If we can find something else and we're going to have a hearing examiner, I'm just not going to go there this evening. So I'm going to vote against it. And if you had another commissioner here you could have changed it, but I -- that's where I am. COMMISSIONER MAC'KIE: So we're going to -- we're going to undo all these -- all this work and go back to these vague standards? CHAIRMAN CARTER: That's what I -- Page 84 June 20,2001 COMMISSIONER MAC'KIE: But, Commissioner -- oh, okay. COMMISSIONER HENNING: Well, there's no sense arguing about it because we're not going to get anywhere. So I make a motion that -- COMMISSIONER MAC'KIE: You don't have to make another motion. It just dies. CHAIRMAN CARTER: It's done. You've got to have four votes. It's done. Next subject, please. MR. DUNNUCK: Next subject, and I'll let Susan bring it forward, and we have three. One's regarding PUD, one's regarding Goodland overlay, and one's regarding C-4 zoning changes. I'd recommend the Goodland overlay at this point. MS. MURRAY: Just to bring you up to speed, I don't recall you having any -- there was -- let me back up. There was a public speaker that came to the podium. He had a number of issues he said he would discuss with Marjorie Student. I do believe, in her opinion, they've probably been resolved. COMMISSIONER MAC'KIE: This is with regard to Goodland? MS. MURRAY: This was the Goodland overlay, and that's on page 95. COMMISSIONER MAC'KIE: that one speaker. Maybe we could just hear from MS. STUDENT: And they mostly were resolved. And the addition I passed out to you was the result of a meeting I had with the speaker at the last meeting to clarify -- further clarify that. And that goes under 2.2.34.6.1(e). I don't know if-- CHAIRMAN CARTER: And the speaker is? MR. DUNNUCK: Your speaker is Edward Fullmer. MR. FULLMER: My name is Edward J. Fullmer, president of Goodland Civic Association. We met with Marjorie and the board Page 85 June 20, 2001 and discussed the things, and she changed the items which we were concerned about. And one other thing I want to say, Commissioner Carter and Commissioners, that it's been a pleasure working with you's for the last three years and all the help that you've given Goodland. We went back after the last meeting and discussed with some of our citizens the way the Goodland gateway came out. And they're not all happy, but ifs something we can live with. And when the new developer comes, we'll sit down with Planning Commission, which did a great job on the overlay and on the PUD. And we appreciate all the help that we got from the county and from you commissioners and from Marjorie. Thank you very much. CHAIRMAN CARTER: Thank you, sir. Mr. Henning -- Commissioner Henning. COMMISSIONER HENNING: Sir, if this -- if I'm looking at this, the leasing of VR or RSF zoning property shall be the sole purpose of-- the purpose of storing fishing-related equipment will be prohibited. What is the purpose of-- and intent of a fishing village? COMMISSIONER MAC'KIE: It's not fishing? COMMISSIONER HENNING: I mean, the storing of-- historically what we've had in Collier County -- well, first of all, let me go back. The fishermen on Marco Island was kicked off because Deltona bought it. They packed up, moved their houses onto Goodland, stored their crab traps all over Goodland, and now this language is saying you have to own the property, and otherwise you can't store it there? MR. FULLMER: What was discussed in the overlay, it was to protect the fishermen that's there now that did get kicked off of Marco down to Goodland. And through generations -- we have third and fourth generations that are still fishing on the island, and they're using their crab traps and all. And we didn't want them to be forced Page 86 June 20, 2001 out of business because there wasn't a provision for them to have their crab traps on their own property. So we had that in the overlay to protect them. What this here does, it stops people from coming in, whoever it is, and renting a property to somebody else to put the fishing traps on. We're protecting the people that came from Caxambas and from Old Marco in 1949 that got moved down there. And that's -- we just don't want people coming renting them in. We're having that happen now on commercial property. There's a parking lot down there that's normally been a parking lot for 30 years, and now it's became a crab trap sanctuary. So we don't want that in the residential area and the VR district. COMMISSIONER HENNING: Let me just say -- I'll give you a scenario. Let's say that, you know, I was a fisherman, and I have a long line of family, you know, son, grandson. And my son -- I give it on to my son, and my son does some wild thing, and the property is foreclosed on. What about my grandson? Where is he going to do that at on Goodland? MR. FULLMER: Then you would be losing the property. That would be on you. I mean, it's just that -- COMMISSIONER HENNING: My grandson wouldn't be able to do it. MR. FULLMER: Say somebody came into my house and said to me, "Ed, I want to rent your property to store my crab traps," and I'm in a residential area, that's -- we don't want that. We have decorative also in this -- in this overlay to where I can put decorative stuff out there. But that's not my business. So why should I start renting my property to somebody that wants to have a fishing business? That's almost making a commercial property out of my residential property or my VR property. That's what we want to prohibit with this ordinance. Page 87 June 20,2001 COMMISSIONER HENNING: And going back to the purpose and intent of a fishing village, that's the whole thing, is we want to keep it that way so those people can do it forever. And once we start putting in restrictions like this, then some people are going to get caught, just like that for instance that I just gave you, the grandson. COMMISSIONER MAC'KIE: I personally don't -- I mean, I don't understand why if-- well, I have two thoughts. I might as well put them both out there. I don't understand why you would want to have this prohibition because I thought this was the character of Goodland that we were trying to perpetuate. And at the same time, I wonder why we don't have some architectural standards that go across for residential and, you know, that whole fishing village bit that we have now on the new projects coming in. It seems to me we ought to have those same kind of requirements for all construction in Goodland. I was going to bring that up for the next cycle, you know, and not try to add it onto this one. But I don't understand. The two things contradict each other. MR. FULLMER: Well, we did discuss having an architectural review board for Goodland. But talking with staff when Mr. Mulhere was there, he advised us not to put that in the overlay. But I think the standard you've set with the PUD and which Goodland LLC set, I think that's going to be the standard for the future in Goodland, is the Old Key West-style village. And I think you've helped set that. That's why -- COMMISSIONER MAC'KIE: He has, but we better get that in the next cycle of the LDC code if we want that to be a requirement. I mean, right now you're hoping that that's the way it'll work out, but it needs to be a requirement. MR. FULLMER: I think you's gave it a pretty good clout. I think staff and Goodland LLC did a good job on it. COMMISSIONER HENNING: I make a motion that we accept Page 88 June 20,2001 staff's revision to the Goodland overlay. CHAIRMAN CARTER: I'll second that. COMMISSIONER MAC'KIE: Including the crab trap change proposed by Ms. Student? COMMISSIONER HENN1NG: No. Prohibit--no. I don't want to make that -- I want to make it -- keep it a fishing village. MR. BELLOWS: Except for 2.2.34.6.1(e)? Except that? That's the last one that you have as an amendment from Ms. Student. COMMISSIONER HENNING: Okay. That's what it is? I have 2.2.34.6.1. MR. BELLOWS: (E). COMMISSIONER HENNING: (E)? BELLOWS: Yeah. COMMISSIONER HENNING: Oh, yeah. Okay. There's (e). Okay. COMMISSIONER MAC'KIE: So with that exception you move approval? COMMISSIONER HENNING: Move approval. COMMISSIONER MAC'KIE: Second. CHAIRMAN CARTER: I seconded it already, and I will include that in my second. COMMISSIONER MAC'KIE: I'm sorry. CHAIRMAN CARTER: Any further discussion? All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Opposed by the same sign. (No response.) CHAIRMAN CARTER: Motion carries 4-0. MR. DUNNUCK: The next item I'd recommend is regarding PUD, planned unit development. It's page 73 of your Land Development Code. There's one speaker on that issue. Page 89 June 20, 2001 COMMISSIONER MAC'KIE: In the middle or the right? MR. DUNNUCK: I believe it's the middle. This is relating to planned unit development district, Section 2.72, amendment procedures. And I believe this was a follow-up item to the impact fee consolidation ordinance where the board had given some direction relative to transportation impact fees stating that they wanted to make sure it referred back to the newly developed ordinance. COMMISSIONER MAC'KIE: Before we hear from the speaker, can we -- I need to understand from staff what this amendment proposes to do. MR. DUNNUCK: I believe what this amendment proposes to do is to re -- you know, when we talked about restricting the ability of impact fee credits through the impact fee ordinance at a -- at an amount to be determined by the Board of County Commissioners, I believe this is just follow-up language that enhances that we will not be -- you know, that the Land Development Code follows along the lines of that impact fee ordinance so that if we ever redraft it, we can move forward. COMMISSIONER MAC'KIE: Okay. I'm still confused. CHAIRMAN CARTER: Well, I'm getting the impression it keeps the two documents in synchronization. Is that where I am? MR. DUNNUCK: Correct. CHAIRMAN CARTER: Thank you. COMMISSIONER MAC'KIE: Yeah. But when you read it, it appears not to do that, to me. CHAIRMAN CARTER: I'll let counsel tell me that. Mr. Yovanovich, you are a speaker? MR. YOVANOVICH: I am. For the record, Rich Yovanovich again. The problem I have with these two sections is the same problem I raised when we went through the impact fee ordinance revision. And it deals with the fact that as we're going through a Page 90 June 20,2001 PUD or we're rezoning property through a straight rezoning district, there may be times where the Board of County Commissioners requires the property owner to set aside their land for a roadway purpose. And in doing so you're -- you are taking the ability to use that property from the property owner and giving it to the public. Normally you would do that through an eminent domain proceeding. However, sometimes you have the opportunity, during the rezone process, to set the land aside. That has never been an issue. The issue always has been, what's the value of the land when you impose a restriction on our land? The way this reads, it says you may give us credits for up to the fair market value, but you can negotiate with us a lower amount. Now, that is fundamentally unfair and probably a taking when it comes to the point where you say to us, "You're going to set your land aside, and we may give you impact fee credits; we may not." COMMISSIONER MAC'KIE: It says "negotiable." MR. YOVANOVICH: The point is is you -- once you take our land, you need to either pay for it then or guarantee us impact fee credits. What I'm proposing is you need to put a provision in there that says when we set the land aside, it will be at the value on the date you ask us to convey it to you. You shouldn't be able to freeze in time the value of the land if you're not willing to pay for it at that time. Second of all, you need to make it a -- you need to make it clear that it will be -- you will either get impact fee credits for it, or you will be paid cash. And you also have that scenario, as we've discussed, where sometimes the value of the land being dedicated to you far exceeds the impact fees to be generated from that project. So none of these situations are addressing either the impact fee ordinance or your Land Development Code. We are always stuck with, at the time you come to us and say dedicate the land, we negotiate a developer contribution agreement. Page 91 June 20,2001 And we have to argue over value. We have to argue over whether we get impact fee credits at all, and we have to argue over whether we get cash. There shouldn't be any argument. It should be clear that the property is given to you for a public purpose, for the same purpose that you're giving -- you're making us pay impact fees. COMMISSIONER MAC'KIE: Well, what if somebody wants to contribute it for less? MR. YOVANOVICH: That should be their choice. COMMISSIONER MAC'KIE: That's what this says. MR. YOVANOVICH: It shouldn't be mandated. COMMISSIONER MAC'KIE: This just says it's an option. MR. YOVANOVICH: No, it doesn't. It does not say that. COMMISSIONER MAC'KIE: It says not more than. MR. YOVANOVICH: Shall be negotiated on an amount no greater than the market value. COMMISSIONER MAC'KIE: Negotiated on. MR. YOVANOVICH: Okay. Well, what if we say we want fair market value? Can the county say to us, "Well, we're not going to give you fair market value?" COMMISSIONER MAC'KIE: I don't think so. MR. YOVANOVICH: Okay. Well, if that's what the intent was and that's the legislative history, let's make that clear. Secondly, you're putting the burden on us to prove the value of your taking. That should be your burden. You should do the appraisal, and we should have the right to agree to it or not to agree to it. In any event, you shouldn't impose a limitation on us as to when we provide the appraisal. It should be an appraisal provided at the time you ask us for the property. We'll give you the appraisal. You shouldn't be able to say, "Well, if you don't provide us with an appraisal within 90 days, guess what, we get to decide what the value of the land is." Page 92 June 20, 2001 COMMISSIONER MAC'KIE: But, Rich, you're in charge of this, because if you don't want to play in this field, then don't apply for the PUD; go under the zoning you got. CHAIRMAN CARTER: When is the last time the Board of County Commissioners ever asked you to change land use? MR. YOVANOVICH: Excuse me? COMMISSIONER MAC'KIE: Thank you. CHAIRMAN CARTER: When did we ever ask you to change land use? COMMISSIONER MAC'KIE: Well, DRI. CHAIRMAN CARTER: Well, if you are zoned agriculture and you want a PUD, I believe, sir, that the burden is on you to tell me the values, not the burden on us. MR. YOVANOVICH: The burden is on me to prove to you that the requested zoning I am asking for is consistent with your Land Development Code and the provisions within the Land Development Code and your Comprehensive Plan. The burden on me is not to buy zoning from you by agreeing to donate land to you and pay impact fees. CHAIRMAN CARTER: Counsel, please. MS. STUDENT: I would like to point out that Mr. Yovanovich is discussing provisions of this code that are not being changed tonight. They have been in there for quite a number of years. Heidi Ashton of our office, who is not here -- nor is anyone here that deals with impact fees -- to address this. However, this language has been there for quite some time, and what's on the table is what's underlined and stricken through. MR. YOVANOVICH: And I -- with all due respect to Marjorie, what I see and what was handed to me, the words "may" and "shall" are -- are new words. And all I'm trying to point out is it should be mandatory that we get impact fee credits. It shouldn't be may unless Page 93 June 20,2001 we voluntarily give them up. And we should get cash if you can't give us impact fee credits. That's all I'm saying. COMMISSIONER MAC'KIE: But that's the law already. MR. YOVANOVICH: No, it isn't. It's not -- COMMISSIONER MAC'KIE: Otherwise it's a taking. MR. YOVANOVICH: Commissioner Mac'Kie, I can cite to you very painful examples of where it has not been applied as the law, and I've had to fight for my client's rights to get impact fee credits or cash for the value of the land. So I understand what the law is. I would just like the code to be consistent with the law, and that's all I'm asking. CHAIRMAN CARTER: Why do I get this feeling that this is a legal counsel debate? COMMISSIONER COLETTA: I don't know. I get the same feeling. COMMISSIONER HENNING: I just -- I have a question. Shouldn't we put in this with -- it says the board of commissioners may. Shouldn't we put board of commissioners or hearing examiner? CHAIRMAN CARTER: I don't think we're there yet. We're not there yet. COMMISSIONER HENNING: Okay. Well, I make a motion for approval. CHAIRMAN CARTER: I'll second that motion. Any discussion? COMMISSIONER MAC'KIE: Well, I mean, I'd like to hear from our lawyers that we aren't taking property or -- MR. OLLIFF: All this is doing is providing a provision where they may receive the credits. It says nothing else about what the other options are here. I mean, this language simply provides an opportunity for a developer coming in for a PUD rezone, that they may receive impact fee credits for that. It does not talk about what is Page 94 June 20,2001 or is not the other alternatives to that contribution for land, and I'm not sure that it's necessary that it be a part of your Land Development Code if Rich and you and every other attorney in the room knows that it is part of the law that if I take their property, there's got to be a just compensation for that property. MR. YOVANOVICH: Okay. I'll take that. Why don't you say you will provide us just compensation? Does that work? MR. OLLIFF: No. MR. YOVANOVICH: Because then it becomes you can either give me impact fee credits on -- MR. OLLIFF: -- the Land Development Code providing every option available for what's going to happen in return for this property. I am providing you an option here, and one of those options is the credits. MR. YOVANOVICH: What's the other option, Tom? MR. OLLIFF: There's a number of other options. COMMISSIONER MAC'KIE: Cash, gift -- MR. OLLIFF: There's a number of options. COMMISSIONER MAC'KIE: -- trade, 1031 exchange. I don't know, but there's lot of other options. MR. YOVANOVICH: You know, Commissioners, I understand that, you know, this is not a popular amendment. But I am just dealing with -- I'm telling you my real-world experience has been if the county ordinance doesn't say you can pay us cash, I can't get cash approved in an agreement. So all I'm asking is clarify the record. If you just tell me that's the intent, is that we'll either get credits, we'll get cash, we'll get -- we'll get just compensation in any combination, the legislative history is good enough for me. I just want to be able to make clear that that's the intent. MR. OLLIFF: And I think I'm not willing to tie our hands to any option that might be available to us as a PUD comes through the Page 95 June 20,2001 process. CHAIRMAN CARTER: I hear Mr. Yovanovich; and I'm hearing you, Mr. Manager, County Manager Olliff; and I'm listening to our legal counsel. And I support what the staff has recommended. COMMISSIONER HENNING: Call the motion. COMMISSIONER COLETTA: Any other speakers? MR. DUNNUCK: No, sir. CHAIRMAN CARTER: Okay. Now the chair -- thank you. The chair will call the motion. All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Opposed by the same sign. (No response.) CHAIRMAN CARTER: Motions carries 4-0. MR. DUNNUCK: The final issue you have a speaker on relates to the C-4 zoning changes. And, Susan, if you can address that issue. MS. MURRAY: We're working off of page 68, 69, and 70. CHAIRMAN CARTER: Handwritten? MS. MURRAY: Handwritten, in the middle of the page. Let me just give you a little bit of history. When we talked about this last, Tim Hancock came up, and he had given me, I think the day before, some proposed language changes. I reviewed them, massaged them, and put them in the document that you have before you. However, kind of in -- in thinking about it a little bit more, our concern grew a little bit because I think what we've been trying to do is, not fully understanding the impact of having storage uses in a C-4 zoning district, which is our primary commercial zoning district and a storage use is more of an industrial type of use, we thought and had a greater comfort level with having the miniwarehousing as a conditional use in C-4. And, really, the definition of a conditional use is a use that would not be appropriate generally or without Page 96 June 20,2001 restriction, but which is controlled to its number, area, location, relation to neighborhood, and would promote the health, safety, welfare, including aesthetics, of the area. And we thought rather than trying to bullet a number of stipulations as a permitted use, that we would bring forward to you our recommendation that you -- rather than do it as a permitted use, you would do it as a conditional use. That way you could look at each one on a case-by-case basis, assess the merits of that, and apply any, you know, standards that were -- would necessarily address any of the issues that were brought forth through staff's analysis. CHAIRMAN CARTER: Commissioner Henning, you have a question? COMMISSIONER HENNING: No, just a statement. I've been looking at this since our last LDC, and I can see where it can be a value to the community in C-4 on major arterial roads where we're going to have architectural designs and stuff. My heartburn -- and I don't think that needs to be a conditional use. I think it could be a permitted use, but I do have a problem with it adjacent or abutting residential. COMMISSIONER COLETTA: That's why you want to make it a conditional use, so you can make sure you come in at the right time. COMMISSIONER HENNING: I understand that, but let's leave it like that. Let's try it. That's what I would like to do. COMMISSIONER COLETTA: you want to go? COMMISSIONER HENNING: I'm sorry. Which way is that Well, keep it a permitted use and a prohibited use next to or adjacent to residential in C-4. COMMISSIONER COLETTA: I have a problem with that because there may be -- you may have some upscale business in a certain area of C-4 that might take personal offense with this going in. Suppose you have an art museum or something. I mean, I'm just Page 97 June 20,2001 giving you an example. This is straying from what C-4 was originally intended for. But I agree with you that it may have some certain uses in certain communities. There is a demand for this service. So if you leave it as a conditional use, we can call it as it comes down. MR. DUNNUCK: It may be helpful to hear from your one registered speaker, Tim Hancock. CHAIRMAN CARTER: Mr. Hancock. MR. HANCOCK: Good evening, Mr. Chairman, Commissioners. First, as is the vogue this evening, I want to state that I had nothing to do with the inception of this language. I don't know who did. I saw it coming through and have a couple of property owners that own C-4 land, and so we're trying to monitor it through the process. And as I did and discussed it with them, that's how this -- my involvement came about. The C-4 zoning district is singly your most intensive commercial retail zoning district. It's not C-1 or C-2. It's not convenience retail. It's not small scale. It's not office. It permits car dealerships with service repair adjacent to residential zoning. It permits, as of today, 100-foot-tall office buildings. It permits the widest variety of uses that are not deemed industrial. And I disagree with Ms. Murray. If you look at Olde Naples Self Storage on Goodlette-Frank Road by Immokalee Road, if you go up Goodlette-Frank to get to Immokalee, on the right is Olde Naples Self Storage. That is self storage today. That is self storage under the architectural standards that exist today. This is not an industrial block building with garage doors in it. The land values do not permit you to do that kind of storage. By the same token, the analogy that a high-end C-4 use is going to locate on property that you can get for the same price where you can financially build self storage is not a realistic opportunity out there either. A lot of work has gone into this. There are a lot of things that Page 98 June 20,2001 need to be done in our commercial zoning districts to create a little more continuity from one to the next. There are a lot of gaps and a lot of holes. My request is that we leave it as a permitted use. Commissioner Henning has mentioned that it not be permitted when directly abutting residential zoning. I don't -- again, don't have any problem with that. Granted you can have uses more noxious in C-4 adjacent to those residential uses, but as far as this goes, I don't see that as being problematic. Second is if you limit the heighth on miniwarehouses to a reasonable, you know, level, I don't see that as problematic. By going to conditional use, you've already eliminated the conflict with adjacent residential properties. You've already reduced the height to, I would assume, less than half what is currently permitted in the zoning district. You have standards that exceed what anybody else in C-4 have to comply with by way of your commercial architectural guidelines. Quite frankly, if there are more conditions placed on it, you aren't going to see self storage in C-4. And there isn't enough C-5 land out there. It's not available. And you can't just go out and make it. If you try and rezone to C-5, the intensity of C-5 zoning and the perceived intensity makes it such an uphill battle, no one's willing to try it. We have needs in the community for storage. We don't have the volume of land available. Industrial has become far more valuable than I think we ever imagined. Look at the sales prices on Trade Center Way. So as our population increases and the demand for storage increases and we have caused storage to become a higher- end, upper-scale aesthetic appearance from the street side, we've already driven the cost up some. We're driven it up significantly. I'm concerned that if we don't do something to allow for storage Page 99 June 20,2001 outside the C-5 zoning district, all we're going to be left with is what you see in the City of Naples, which is air-conditioned vault storage for oil paintings and furs. That doesn't serve the average Joe. That doesn't serve the family who's here three or four months out of the year that goes back up north. And we're just not seeing enough inventory in the C-5 zoning district to accommodate this. So the idea here was -- and I support staffs intention, which is to limit it, to attach a greater level of -- of detail to it to make sure it is even more compatible, above and beyond architectural standards. I think that has been accomplished here. So the conditional use process adds anywhere from 10 to $20,000 to getting to the point that you can even start getting a building permit. It's going to drive the cost up more and more when, in my opinion, in my professional opinion as a planner, is that based on your architectural guidelines, the ministorage use is one of the least intensive uses that will be contained in your C-4 zoning district, forgetting the additional standards. Trip generation is dramatically lower than the retail uses in C-4. I mean, I don't know if you'd rather live behind the service portion of a car dealership or ministorage. I would prefer ministorage. The external impacts for the project are far less than what's allowed in C-4 today. So I don't think it's opening the flood gate by any means. I think it's recognizing a need and a lack of inventory. COMMISSIONER COLETTA: When did we ever get to the point that car dealerships could go into a C-4 as a -- as a permitted use rather than conditional use? COMMISSIONER HENNING: It's been there for a long time. MS. MURRAY: It's been there for quite some time. MR. HANCOCK: Decades. COMMISSIONER COLETTA: I wish we could change that Page 100 June 20, 2001 too. COMMISSIONER HENNING: I'm working on that we're going to -- COMMISSIONER COLETTA: use is a necessity in this. COMMISSIONER MAC'KIE: And there's some things that But I still hold that conditional I agree. COMMISSIONER COLETTA: If someday in the future they wanted to change it, I'll be all for looking at it. But at this point in time, I want to be able to call this back and talk to the residents and see if there's a real problem with local businesses, if it's going to be fitting into the business pattern of that particular area. CHAIRMAN CARTER: Let me ask a question here because I - - I'm going to just ask, and I don't know if we can answer it on a specific area. But let's take where Costco is. Let's take where Lowe's is and look at that. If we change this, is that going to upset that business PUD where they can't build a smart park if they chose to put one in there? Does that become conditional use under the changes? I mean, you already have -- are -- MS. MURRAY: It's -- CHAIRMAN CARTER: -- allowed to do office. MS. MURRAY: I'm sorry. I believe it's already a PUD. CHAIRMAN CARTER: Yes. MS. MURRAY: So unless their PUD specified that they could have that type of use, then they would have to come in and amend their PUD. CHAIRMAN CARTER: If there's not a -- if there's any uses they want to do there today that require no amendments, this change would not affect it. MS. MURRAY: That's correct. And then, again, amending their PUD, as would be required, they would be before you in a public hearing setting where you could look at -- if they wanted to Page 101 June 20,2001 amend it to include self storage, you would essentially have the safety net of the public hearing process to look at what's surrounding that property. MR. DUNNUCK: And I'll just say this goes back to the opening comments that we made, that we're going back and looking at all these commercial districts and seeing, you know, where the board stands on these issues. My goal is to outline a schedule for you-all where we're bringing items forward to the board in advance of Land Development Code where we have some public discussion about them, get some input from the Board of County Commissioners, and then move forward with the changes and look at where you-all want to be with these commercial districts as a whole. COMMISSIONER COLETTA: I'd like to make a motion that we pass this and determine they're a conditional use. COMMISSIONER MAC'KIE: Second. CHAIRMAN CARTER: Any discussion? All in favor signify by saying aye. COMMISSIONER COLETTA: Aye. CHAIRMAN CARTER: Aye. COMMISSIONER MAC'KIE: Aye. CHAIRMAN CARTER: Opposed by the same sign. COMMISSIONER HENNING: COMMISSIONER COLETTA: period. COMMISSIONER HENNING: Aye. That means there won't be any, Let me make a motion. Conditional use in the C-4 zoning for ministorage warehouses not abutting or adjacent to residential and must have -- well, no metal doors, roll-up garage doors, shall be allowed on the outermost walls. I don't know if that's already in here or not. COMMISSIONER MAC'KIE: I'm not going to support it, and the reason is I have seen this board mess up too many times by Page 102 June 20, 2001 drafting from the dais. I'm just not going to go there. COMMISSIONER HENNING: I mean, this was the Planning Commission's recommendation. So you -- you would say you're opposed to not next to or adjacent to residential? COMMISSIONER MAC'KIE: I'm saying I'm opposed unless I can have it for a conditional use review. COMMISSIONER HENNING: Period? COMMISSIONER MAC'KIE: Uh-huh. COMMISSIONER HENNING: Okay. My motion -- my vote stays. CHAIRMAN CARTER: Okay. It fails. We're right back to square one. COMMISSIONER MAC'KIE: Does staff have a recommendation in that circumstance? MR. DUNNUCK: Well, what I would recommend -- I would recommend approval of this subject to the fact that you're going to be reviewing it this fall on a conditional-use basis and that you can move forward. Beyond that, if that doesn't sway the commissioner to reconsider, then I would say let's move on to the next item. COMMISSIONER COLETTA: The problem with that is that in the meantime we've opened the doors. MR. DUNNUCK: Conditional use where they'd have to come before the commissioners. CHAIRMAN CARTER: They'd have to come before the commission. We will not meet for them to come in front of us. We've got one meeting in August, and then it's the fall before they get back. So if that's a concern, I think by the time it would get through the system, you're going to have plenty of opportunity to review it, if that's your concern. COMMISSIONER HENNING: Let me tell you, my concern is we are not going to be sitting here all the time. Well, we hope that Page 103 June 20,2001 we're not. We hope we get to move on. COMMISSIONER COLETTA: Be careful. You're digging a hole, Tom. COMMISSIONER HENNING: And my concern is, you know, somehow one of them gets through the cracks, and then we don't have citizen participation about concerns about neighborhood traffic impacts. That's my concern, is neighborhood impacts of traffic. COMMISSIONER COLETTA: Conditional use, one more time. COMMISSIONER MAC'KIE: That's what we're -- COMMISSIONER COLETTA: saying. COMMISSIONER HENNING: COMMISSIONER COLETTA: Same thing. That's what you're Right. Same concern we got. Remind you, again, they can always change it sometime in the future if you -- MS. MURRAY: You might want to -- COMMISSIONER HENNING: The reason that -- MS. MURRAY: You might want to consider it. And then after you have a few conditional use cases, you might say, "Well, gee, we're really not having a problem, you know, historically. Let's make it a permitted use." But this is kind of a -- the conservative approach, but it at least gives you the opportunity to see what the impact is and what the residents are going to say. You're going to get to look at traffic impacts, traffic circulation, architectural, proximity to neighborhoods in a public hearing. CHAIRMAN CARTER: Commissioner Henning, I respect your vote, but I think what we're trying to say is all the safeguards will be built in in a short period of time, to look at it. And if we want to further do something after they bring the bigger picture back, I think you've got, perhaps, more safeguards under what you do tonight then you might have had in the past, is what I'm understanding. But that's Page 104 June 20,2001 your call, sir. COMMISSIONER HENNING: When have we talked about traffic impacts under a conditional use? MS. MURRAY: You're required to analyze them as part of the conditional use process. COMMISSIONER HENNING: Okay. I -- I can live with that. COMMISSIONER MAC'KIE: Great. CHAIRMAN CARTER: You want to change your vote? COMMISSIONER HENNING: I will change my vote. CHAIRMAN CARTER: All right. Duly note for the record that Commissioner Henning now votes in the affirmative. COMMISSIONER MAC'KIE: We need a new motion. MS. STUDENT: You have to have a new motion and second and vote. MR. WEIGEL: If the motion is the same as the previous motion made that failed -- COMMISSIONER COLETTA: Can I make a new motion? MR. WEIGEL: Is it going to be brand-new and different in some respect? COMMISSIONER COLETTA: No. MR. WEIGEL: Okay. Then you are reconsidering the previous motion. So first make a motion to reconsider. COMMISSIONER MAC'KIE: Move to reconsider the previous motion. Somebody say second. CHAIRMAN CARTER: Second. COMMISSIONER COLETTA: I'll second. COMMISSIONER MAC'KIE: Call the question. CHAIRMAN CARTER: All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Opposed by the same sign. (No response.) Page 105 June 20,2001 CHAIRMAN CARTER: Now we're back to -- MR. WEIGEL: You're ready to go. CHAIRMAN CARTER: All right. COMMISSIONER MAC'KIE: Now all in favor. CHAIRMAN CARTER: All in favor of the -- of the staff's recommendation signify -- COMMISSIONER COLETTA: With the conditional use. CHAIRMAN CARTER: -- signify by saying -- I mean second. I need a second. COMMISSIONER COLETTA: Second. CHAIRMAN CARTER: Okay. All in favor signify by saying aye. COMMISSIONER MAC'KIE: I'm sorry. Didn't we just -- by reconsidering we called back up the other motion and second that was already on the floor? Isn't that what the motion to reconsider does? MR. WEIGEL: Right. It brings it up to reconsider, but you've got to vote again. COMMISSIONER MAC'KIE: Right. So let's vote again, but we don't have to restate the motion because we're going to screw it up. So the motion that's back on the floor is the first one. The second's already there. CHAIRMAN CARTER: Okay. All in favor of the motion as originally stated, now back on the floor, signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Opposed by the same sign. (No response.) CHAIRMAN CARTER: Motion carries. Thank you very much. COMMISSIONER HENNING: Boy, I'm sorry. COMMISSIONER MAC'KIE: Motion to adjourn. Page 106 June 20, 2001 CHAIRMAN CARTER: Good work, Tom. You're going to be COMMISSIONER HENNING: Move the rest of the amendments to the LDC. MS. STUDENT: I have a point of clarification. CHAIRMAN CARTER: Point of clarification. MS. STUDENT: Does that include the changes to the rooster amendments that I passed out to the board? CHAIRMAN CARTER: Next item up? COMMISSIONER HENNING: Do you like your roosters, Mr. Coletta? COMMISSIONER COLETTA: I like them fried and baked. COMMISSIONER HENNING: Did you see the amendment which is somewhere around here? COMMISSIONER COLETTA: Let's go over it and review it, wherever it is. COMMISSIONER HENNING: Can you read it for us, please? MS. STUDENT: Yes. CHAIRMAN CARTER: You're going to read about this rooster? I can hardly wait. Let's do it. MS. STUDENT: In the rural ag district under permitted uses, it would be under (a) with those things that are underlined now out. And it would say, owning, maintaining, or operating any facility or part thereof for the following purposes is prohibited. And the purposes are, one, fighting or baiting any animal by the owner of such facility or any other person or entity; two, raising any animal or animals intended to be ultimately used or used for fighting or baiting purposes -- I just think that extra "or used" should be out -- and for purposes of this subsection, the term "baiting" is defined as set forth in Section 828.122(2)(a) Florida Statutes -- COMMISSIONER MAC'KIE: We'll give it to you in writing. Page 107 June 20,2001 MR. OLLIFF: Mr. Chairman, to help I think these are amendments clearly defined to try and prevent people from raising animals strictly for fighting purposes. CHAIRMAN CARTER: Thank you, Mr. Olliff. MR. OLLIFF: And I think we've got it written for you. You've got that, and we'll provide a copy for the record. CHAIRMAN CARTER: All in favor of the rooster amendment -- no. I need a motion to entertain the rooster amendment. COMMISSIONER HENNING: I make a motion that we accept staff's -- COMMISSIONER MAC'KIE: Can we just do the whole package including that, please? CHAIRMAN CARTER: Can we? MS. STUDENT: And just make the finding that all the amendments tonight were consistent. CHAIRMAN CARTER: All stated -- as stated by legal counsel, I entertain a motion that all amendments changed tonight, including the one that's now on the table in regard to roosters and any other -- COMMISSIONER MAC'KIE: Are consistent with the Comprehensive Plan. CHAIRMAN CARTER: Comprehensive Plan. Is that sufficient COMMISSIONER MAC'KIE: That's my motion. CHAIRMAN CARTER: -- Ms. Student? COMMISSIONER HENNING: Second. CHAIRMAN CARTER: I have a first. I have a second by Commissioner Henning. Any discussion? All in favor signify by saying aye. (Unanimous response.) CHAIRMAN CARTER: Motion carries 4-0. We stand adjourned. Page 108 June 20, 2001 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 8:19 p.m. BOARD OF COUNTY COMMISSIONERS BOARD OF ZONING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL D~UNDER ITS CONTROL JAME~ AR TE R, Ph.--~., CHAIRMAN ATTEST: DWIGHT E. BROCK, CLERK '~')': ::. [ne.s:e~m~hures ~roved by the Board on . :'::.:a~prCS~nt~ea ~ or as co~ected TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING, INC., BY BARBARA DRESCHER, NOTARY PUBLIC Page 109