BCC Minutes 10/10/2000 R October 10, 2000
TRANSCRIPT OF THE MEETING
OF THE BOARD OF COUNTY COMMISSIONERS
OCTOBER 10, 2000
LET IT BE REMEMBERED, that the Board of County
Commissioners in and for the County of Collier, and also acting
as the Board of Zoning Appeals and as the governing board(s) of
such special districts as have been created according to law and
having conducted business herein, met on this date at 9:00 a.m.
in a regular session in Building F of the Government Complex,
East Naples, Florida, with the following members present:
ALSO PRESENT'
CHAIRMAN:
James D. Carter, Ph.D
Barbara B. Berry
David E. Bran&
Pamela S. Mac'Kie
Tom Olliff, County Manager
David G. Weigel, County Attorney
Sue Filson, Administrative Assistant
Page 1
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA
Tuesday, October 10, 2000
9:00 a.m.
NOTICE: ALL PERSONS WISHING TO SPEAK ON ANY AGENDA ITEM MUST
REGISTER PRIOR TO SPEAKING. SPEAKERS MUST REGISTER WITH THE
COUNTY MANAGER PRIOR TO THE PRESENTATION OF THE AGENDA ITEM
TO BE ADDRESSED.
COLLIER COUNTY ORDINANCE NO. 99-22 REQUIRES THAT ALL LOBBYISTS
SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT
NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS),
REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND
RECORDS DEPARTMENT.
REQUESTS TO ADDRESS THE BOARD ON SUBJECTS WHICH ARE NOT ON
THIS AGENDA MUST BE SUBMITTED IN WRITING WITH EXPLANATION TO
THE COUNTY MANAGER AT LEAST 13 DAYS PRIOR TO THE DATE OF THE
MEETING AND WILL BE HEARD UNDER "PUBLIC PETITIONS".
ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL
NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND
THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE
PROCEEDINGS iS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND
EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED.
ALL REGISTERED PUBLIC SPEAKERS WILL BE LIMITED TO FIVE (5)
MINUTES UNLESS PERMISSION FOR ADDITIONAL TIME IS GRANTED BY THE
CHAIRMAN.
IF YOU ARE A PERSON WITH A DISABILITY WHO NEEDS ANY
ACCOMMODATION IN ORDER TO PARTICIPATE IN THiS PROCEEDING, YOU
ARE ENTITLED, AT NO COST TO YOU, TO THE PROVISION OF CERTAIN
ASSISTANCE. PLEASE CONTACT THE COLLIER COUNTY FACILITIES
MANAGEMENT DEPARTMENT LOCATED AT 3301 EAST TAMIAMI TRAIL,
NAPLES, FLORIDA, 34112, (941) 774-8380; ASSISTED LISTENING DEVICES
FOR THE HEARING IMPAIRED ARE AVAILABLE IN THE COUNTY
COMMISSIONERS' OFFICE.
LUNCH RECESS SCHEDULED FOR 12:00 NOON TO 1:00 P.M.
[
October 10, 2000
INVOCATION - Reverend Alan Watkins, First Baptist Church of Naples
PLEDGE OF ALLEGIANCE
A. SELECTION OF CHAIRMAN AND VICE -CHAIRMAN
APPROVAL OF AGENDAS
APPROVAL OF CONSENTAGENDA.
APPROVAL OFSUMMARY AGENDA
APPROVAL OF REGULAR AGENDA.
APPROVAL OF MINUTES
September 12, 2000 - Regular Meeting
September 13, 2000 - Pelican Bay Budget
September 20, 2000 - Budget Public Hearings
PROCLAMATIONS AND SERVICE AWARDS
A. PROCLAMATIONS
1)
2)
3)
Proclamation proclaiming October as "Vision Awareness
Month". To be accepted by Ms. Jane DiPoala.
Proclamation proclaiming October 23 through the 30th, 2000 as
"Red Ribbon Week". To be accepted by Angela and Robert
Hignite.
Proclamation proclaiming October 9th through the 15th, 2000 as
"Marco Island Film Festival Week" and that October 12u~, 2000
be designated as "Celeste Holm Day". To be accepted by
Maury Dailey.
B. SERVICE AWARDS
1)
2)
3)
4)
s)
7)
s)
9)
10)
Kyle Lukasz, Pelican Bay - 20 Years
Sharon Long, Planning Services - 15 Years
John Waiters, Parks & Recreation - 15 Years
Robert Casey, Wastewater - 10 Years
Richard O'Dell, Wastewater - 10 Years
Nell Maclarty, EMS - 5 Years
William Degenhart, Purchasing - 5 Years
Meredith Myers, Parks & Recreation - 5 Years
Emilio Rodriguez, Isles of Capd Fire Control - 5 Years
Pamela Callis, Solid Waste Department - 5 Years
October l O, 2000
11) Russell Longworth, Wastewater- 5 Years
12) Louis Massarone, Parks & Recreation - 5 Years
13) Linda Sujevich, Real Property- 5 Years
14) Thomas Walsh, Water Department - 5 Years
C. PRESENTATIONS
APPROVAL OF CLERK'S REPORT
A. ANALYSIS OF CHANGES TO RESERVES FOR CONTINGENCIES.
PUBLIC PETITIONS
A. Request by Ms. Nina Birtolo for Public Petition to discuss 2000 and
2001 Naples Jaycees July 4th Festival and Fireworks Display.
B. This item has been deleted.
C. Request by Mr. Howard Matson for Public Petition to discuss Zoning
Violation and Improper Permitting, Lot 77 Palmetto Dunes.
D. Request by Betty M. Pagani and Kathy Bruce for Public Petition to
discuss the intersection of Myrtle Lane and U.S. 41.
COUNTY MANAGER'S REPORT
A. COMMUNITY DEVELOPMENT & ENVIRONMENTAL SERVICES
1) Presentation to the Board of County Commissioners on an
Award of Merit received by the Community Development and
Environmental Services Division by the Flodda Chapter of the
American Planning Association in recognition of the Bayshore
and Gateway Triangle Redevelopment Plan.
2) Recommendation that the Board of County Commissioners be a
primary sponsor for the Planning Symposium on Smart Growth.
B. TRANSPORTATION SERVICES
C. PUBLIC UTILITIES
D. PUBLIC SERVICES
1) Approval of a Professional Services Contract with Ms. Maggie
McCarty for the Operation of the Collier County Film
Commission.
3
OcmberlO, 2000
J
10.
11.
F.
G.
H.
SUPPORT SERVICES
EMERGENCY SERVICES
COUNTY MANAGER
AIRPORT AUTHORITY
COUNTY ATTORNEY'S REPORT
Closed Attorney-Client session for discussion of Settlement
negotiations and/or strategy related to litigation expenditures of the
pending litigation case of Poppv. Collier County, Case No. 99-3286-
CA, pending in the Twentieth Judicial Circuit in and for Collier County,
Florida. Persons in attendance will be the Board of County
Commissioners, County Manager Thomas W. Olliff, County Attorney
David C. Weigel, Assistant County Attorney Michael W. Pettit. (This
session will commence at 2:00 p.m. or at the conclusion of the
regular meeting agenda whichever occurs earlier.)
BOARD OF COUNTY COMMISSIONERS
Discussion regarding representation on the Florida Association of
Counties Board of Directors. (Commissioner Carter)
Appointment of member to the Workforce Development Board, Region
24.
Co
Appointment of members to the Historical/Archaeological Preservation
Board.
D. Appointment of member to the Public Vehicle Advisory Committee.
Appointment of members to the Select Committee for Community
Character and Appearance.
Appointment of members to the Emergency Medical Services Advisory
Council.
Reconsideration of previously discussed items referring to altemative
road impact fee calculations for golf courses. (Commissioner
Mac'Kie, Commissioner Carter, Commissioner Brandt)
OTHER ITEMS
A. OTHER CONSTITUTIONAL OFFICERS
4
October I O, 2000
B. COMMUNITY REDEVELOPMENT AGENCY
C. PUBLIC COMMENT ON GENERAL TOPICS
PUBLIC HEARINGS WILL BE HEARD FOLLOWING STAFF ITEMS
12. ADVERTISED PUBLIC HEARINGS - BCC
A. COMPREHENSIVE PLAN AMENDMENTS
B. ZONING AMENDMENTS
1)
THIS ITEM WAS CONTINUED FROM THE SEPTEMBER 12~
2000 MEETING. Petition PUD-2000-09 Brad Hedrich, P.E. of
Hedrich Engineering Inc., representing Meridian Land Co.
requesting a rezoning for property currently zoned "A" rural
agricultural, "RSF-3" residential single family and "ST" overlay to
"PUD" Planned Unit Development to be known as Madeira PUD
for a maximum of 436 residential dwelling units for property
located on the west side of Livingston Road, approximately 3/4
miles north of Immokalee Road (C.R. 846), in Sections 13 and
24, Township 48 South, Range 25 East, Collier County, Florida,
consisting of 145.93 +1- acres.
C. OTHER
1)
Approve Ordinance 2000- amending Ordinance 97-35,
the Collier County Citation Ordinance.
2)
Recommendation that the Board of County Commissioners
adopt a resolution to find that redevelopment and planning
activities are underway in the Gateway Triangle/Bayshore
Community Redevelopment Area and that projects in the area
to be in conformity with the Community Redevelopment Plan.
3)
THIS ITEM HAS BEEN CONTINUED TO THE OCTOBER 24,
2000 MEETING. Amendment to the State Housing Initiatives
Partnership (S.H.I.P.) Down Payment/Closing Cost Assistance
Program for First-time Homebuyers.
13. BOARD OF ZONING APPEALS
A. ADVERTISED PUBLIC HEARINGS
1)
Petition V-2000-15, James Houser of Quai[mark Homes, Inc.,
representing Earl and Ada Engelmann, requesting a 3-foot
after-the-fact variance from the required 20-foot rear yard
$
October 10, 2000
setback for accessory structures to 17 feet for property located
at 4377 Pomarine Court, further described as Lot 65, Block K,
Longshore Lake Unit 5D, in Section 20, Township 48 South,
Range 26 East, Collier County, Florida.
B. OTHER
14. STAFF'S COMMUNICATIONS
15. BOARD OF COUNTY COMMISSIONERS' COMMUNICATIONS
16.
CONSENT AGENDA - All matters listed under this item are considered to
be routine and action will be taken by one motion without separate
discussion of each item. If discussion is desired by a member of the
Board, that item(s) will be removed from the Consent Agenda and
considered separately.
A. COMMUNITY DEVELOPMENT & ENVIRONMENTAL SERVICES
1)
Request Creekside West Inc. to delay commitment to construct
east/west road in Creekside Commerce Park until completion of
a County utility project involving the construction of a 30-inch
sewer forcemain.
2)
Petition VAC 00-007 to disclaim, renounce and vacate the
County's and the public's interest in the Public Road Right of
Way located within the IslandWalk Development which is
referred to in certain recorded instruments, Public Records of
Collier County, Florida, and being located in Section 34,
Township 48 South, Range 26 East.
3)
Petition VAC 00-015 to vacate the 10' drainage easement
recorded in O.R. Book 915, Page 521, Public Records of Collier
County, Florida, and to accept a 12.5' drainage easement,
located in Section 29, Township 48 South, Range 25 East.
4)
Recommendation to approve Commercial Excavation Permit
No. 59.760, "Eckhart Lake Commercial Excavation" located in
Section 5, Township 48 South, Range 28 East; bounded on the
north by vacant lot, on the south by 52nd Avenue N.E. right-of-
way, on the west by vacant lot, and on the east by canal right-
of-way.
6
October !0, 2000
B=
s)
Request to approve for recording the final plat of "Island Walk
Phase Five A", and approval of the Standard Form Construction
and Maintenance Agreement and approval of the amount of the
Performance Security.
6)
Request to approve for recording the final plat of "Coachmen
Glen" and approval of the Standard Form Construction and
Maintenance Agreement and approval of the amount of the
Performance Security.
7)
To accept the donation of 1,800 square feet of storage space
as equivalent to $11,600 in operational expenses and authorize
the release of $13,900 of TDC Funds to the Marco Island
Historical Society.
TRANSPORTATION SERVICES
1) This item has been deleted.
2)
A Resolution authorizing the execution of a Joint Participation
Agreement (JPA) For public transit expenses with the Florida
Department of Transportation (FDOT) and authorizing the
Transportation Administrator or the Transportation Planning
Director to enter into, modify or terminate the JPA with the
FDOT unless specifically rescinded.
3)
Approve Change Order No.2 to the construction contract No.
00-3031 with Hannula Landscaping, Inc. for C.R. 951 Part "B"
landscape improvement, Project No. 69118
4)
A Resolution authorizing the execution of a Joint Participation
Agreement (JPA) for public transit vehicles with the Florida
Department of Transportation (FDOT) and authorizing the
Transportation Administrator or the Transportation Planning
Director to enter into, modify or terminate the JPA with the
FDOT unless specifically rescinded.
s)
Approve Bid #00-3144 "SR 951 at Fiddler's Creek MSTD
Roadway Grounds Maintenance."
6)
Approve Change Order No. 4 with APAC-Flofida, Inc. for
additional construction services for the widening of lmmokalee
Road from 1-75 to Collier Boulevard (CR 951), Project No.
69101, CIE #8.
7)
Amend Work Order TS-BL-9908 to provide additional
construction work for the Bayshore Drive Beautification
7
October 10, 2000
Ke
Municipal Services Taxing Unit (MSTU) Landscaping Project.
PUBLIC UTILITIES
1) Certify financial responsibility for South County Regional Water
Treatment Plant Reverse Osmosis Expansion Deep Injection
Wells, Project 70054.
2) Authorize Public Utilities Administrator to accept Department of
Environmental Protection Settlement Offer.
PUBLIC SERVICES
1) Adopt a Resolution to Convey a Grant of Utility Easement to
Sprint-Florida, Incorporated, at Golden Gate Community Park.
2) Adopt a Resolution, Approve an Easement Agreement and
Convey a Grant of Utility Easement to Sprint-Florida,
Incorporated in Isles of Capri.
SUPPORT SERVICES
1) Appropriate Carry Forward in Countywide Capital Projects Fund
(301).
2) Approve a Budget Amendment for the Fiscal Year 2001 PC
Replacement Program.
EMERGENCY SERVICES
COUNTY MANAGER
1) Approval of Budget Amendment Report - Budget Amendment
#00-512.
AIRPORT AUTHORITY
BOARD OF COUNTY COMMISSIONERS
MISCELLANEOUS CORRESPONDENCE
1) Miscellaneous items to file for record with action as directed.
OTHER CONSTITUTIONAL OFFICERS
COUNTY ATTORNEY
8
October I0,2000
17.
1)
Approval of agreed order regarding appraisal fees in the
eminent domain case entitled Collier County v. John B. Fassett,
Trustee of the Anne M. Fassett Trust dated 6/05/86, et al., Case
No. 99-3040-CA
2)
County provision of legal representation to current and former
county employees.
SUMMARY AGENDA - THIS SECTION IS FOR ADVERTISED PUBLIC
HEARINGS AND MUST MEET THE FOLLOWING CRITERIA: 1) A
RECOMMENDATION FOR APPROVAL FROM STAFF; 2) UNANIMOUS
RECOMMENDATION FOR APPROVAL BY THE COLLIER COUNTY
PLANNING COMMISSION OR OTHER AUTHORIZING AGENCIES OF
ALL MEMBERS PRESENT AND VOTING; 3) NO WRITTEN OR ORAL
OBJECTIONS TO THE ITEM RECEIVED BY STAFF, THE COLLIER
COUNTY PLANNING COMMISSION, OTHER AUTHORIZING AGENCIES
OR THE BOARD, PRIOR TO THE COMMENCEMENT OF THE BCC
MEETING ON WHICH THE ITEMS ARE SCHEDULED TO BE HEARD;
AND 4) NO INDIVIDUALS ARE REGISTERED TO SPEAK IN
OPPOSITION TO THE ITEM.
Petition CU-2000-07 William L. Hoover, Hoover Planning &
Development, representing Pastor Jaime Espinoza of the Iglesia
Herederos De Dios (Lake Trafford Christian Church), requesting a
conditional use for a church, a private school, and a child care facility
for property located on the south side of Lake Trafford Road,
approximately 2.5 miles west of S.R. 29 in Section 36, Township 46
South, Range 28 East, Collier County, Florida, consisting of 19.15+
acres.
Petition V-2000-18 Stephen J. Trudnak, P.A., representing David and
Diane Bautsch, requesting a 4'-8" variance from the required 10-foot
rear yard setback for accessory structures in order to renovate and
expand a pool and deck for property located at 297 3rd St. West in
Little Hickory Shores Subdivision, Unit #3 Replat, Block F, Lot 9, as
recorded in Plat Book 6, Page 2, Bonita Springs, Florida.
Petition VAC 00-003 to disclaim, renounce and vacate the County's
and the public's interest in 15 foot drainage easement along the
common tract line of Tracts "T" and "S" shown on the plat of
"Northbrooke Plaza" as recorded in Plat Book 31, Pages 65 through
66, Public Records of Collier County, Florida and being located in
Section 19, Township 48 South, Range 26 East and to accept a 15'
wide replacement drainage easement along the common tract line of
Tracts "R" and "S".
9
October l 0, 2000
D. Adopt a Resolution Approving Amendments to the Fiscal Year 1999-
2000 Adopted Budget.
18. ADJOURN
INQUIRIES CONCERNING CHANGES TO THE BOARD'S AGENDA SHOULD BE
MADE TO THE COUNTY MANAGER'S OFFICE AT 774..8383
10
October 1 O, 2000
October 10, 2000
Item #2A
COMMISSIONER CARTER SELECTED AS CHAIRMAN AND
COMMISSIONER MAC'KIE SEI,ECTED AS VICE CHAIRMAN
COMMISSIONER CARTER: Good morning. We're not alive.
We're now alive. Let's try that again. Welcome to the Board of
County Commissioner's Meeting, October 10. If you will please join
us in the invocation by the Reverend Alan Watkins, followed by the
Pledge of Allegiance.
REVEREND WATKINS: Let us pray together. Heavenly
Father, giver of all life and wisdom, we seek your presence in our
midst here today. You have identified yourself as one who gives
wisdom to all who seek and who ask of you. We ask for wisdom in
our decision-making process here today, realizing that our decisions
may affect many lives and have lasting implications. May our minds
and our hearts lay aside the distractions of personal interests and
agendas and any other objects that would cloud our minds and our
conscience. Father, help us to make decisions that will reflect your
guidance and your leadership. Help us, oh eternal God, to see to the
core and the essence of the issues, discerning that which is good and
rejecting that which is not. May we model the biblical character
Solomon, who was renowned for his wisdom and insight, and may
our decisions and conduct have a lasting impact for good in our
community here today. In your Son's name we pray, the perfect
example of your wisdom. Amen.
(Pledge of Allegiance recited in unison.)
COMMISSIONER CARTER: Our first item on the agenda this
morning is the selection of a chairman and a vice chairman for the
remainder of this calendar year.
COMMISSIONER BERRY: I'd like to make a motion.
COMMISSIONER CARTER: Commissioner Berry?
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October 1 O, 2000
COMMISSIONER BERRY:
Carter for the chairman.
COMMISSIONER BRANDT:
COMMISSIONER CARTER:
by saying aye.
Opposed?
(No response)
CHAIRMAN CARTER:
much.
We now need a vice chair.
COMMISSIONER BRANDT:
I would like to nominate Jim
Second.
Discussion? All in favor signify
Motion carries. Thank you very
Mr. Chairman, I nominate
Commissioner Mac'Kie.
COMMISSIONER BERRY: And I'll second that.
CHAIRMAN CARTER: Discussion? Seeing no discussion, all
in favor signify by saying aye.
Carries 4/0. Thank you very much for your confidence, and we
will move forward.
We need to take about a three-minute break because now I can
sign some papers. We never do anything until we get everything in
place. So you can all stretch yourselves, grab a cup of coffee. We'll
take about three minutes for me to sign papers, and then we will
move into the agenda.
(A recess was taken.)
CHAIRMAN CARTER: All right, we are back in session.
Thank you.
Item #3A,B,&C
CONSENT, SUMMARY AND REGULAR AGENDA-
APPROVF, D AND/OR ADOPTFD WITH CHANGF, S
Mr. Olliff, changes for us, this morning?
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October 1 O, 2000
MR. OLLIFF: Good morning, Mr. Chairman. Welcome to the
chairmanship.
Two items here. One is an addition. We are asking the Board
to add an item, 10(H), which is a discussion regarding commissioners
attending the Florida Association of Counties. That's at the request
of Commissioner Carter, and the second, and the audience needs to
hear this very clearly, Item 12(b)(1), which is a public hearing,
petition PUD 2000-09, which is the Madeira PUD, it has been
requested to be continued indefinitely. So that item is being
requested by the petitioner not to be heard this morning and not to be
heard-- rescheduled.
Beyond that, Mr. Chairman, those are the only changes I have. I
think there's a clarification that the county attorney needs to go
through on one of the items on your agenda that's already listed.
CHAIRMAN CARTER: Mr. Weigel?
MR. WEIGEL: Thank you. We have a clarification listed on
the agenda changes. This isn't a change to the agenda whatsoever,
but it's just further reiteration of the reconsideration matter that is set
for 10(g) on your agenda today. And there is a full listing of the
items subject to reconsideration that come from the September 12th,
2000 meeting, Items 12(c)(3), 12(c)(4), 12(c)(5,) 12(c)(6), and
12(c)(7) of that September 12th meeting. Additionally, the items of
the September 26th meeting of this Board, which are Items 12(c)(3),
12(c)(4), 12(c)(5), 12(c)(6), 12(c)(7), and 12(c)(8). A copy of this
iteration as clarification is available and outside with the general
information of the agenda that's in the hallway, and just want to make
sure that everyone is aware of the specific item numbers as we
prepare to discuss it later today.
COMMISSIONER BERRY: Mr. Chairman?
CHAIRMAN CARTER: Yes?
COMMISSIONER BERRY: I have a question regarding
particularly the September 12th one. I was not present at the
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October 10, 2000
September 26th meeting, but on September 12th, I thought that we
had handled those items as a Board correctly by doing what we did.
So, if that's the case, what's the problem?
COMMISSIONER MAC'KIE: I asked for their reconsideration.
So, in a word, I can tell you it's -- there's a much longer explanation
than this, but the clerk is going to be here for that discussion because
in a word, the clerk strongly feels that we did not take a legal action.
And in fact we got advice from our county attorney that we shouldn't
have done what we did, and he agreed to defend us if we chose to do
it anyway. We went forward with that. The clerk--
COMMISSIONER BERRY: That was on -- excuse me,
Commissioner, that's on the September 12th items?
COMMISSIONER MAC'KIE: Yes. On both.
COMMISSIONER BERRY: Well, now, I don't recall the
discussion on September 12th that we were advised that we should
not be taking any action that day. Is this in the record?
COMMISSIONER MAC'KIE: To be honest with you,
Commissioner, I didn't recall it either, and I found myself being
critical of the county attorney, and in an effort to be more fair, I got a
copy of the transcript and reviewed it, and in fact he gave us that
advice.
COMMISSIONER BERRY: That we shouldn't have heard
those items at all?
COMMISSIONER MAC'KIE: That we should not have granted
any alternative impact fee calculation opportunities. We should have
had the hearings, and then we should have denied --
COMMISSIONER BERRY: I believe we did. I believe we did
on September 12th. Please correct me if I'm wrong, but I thought on
September 12th we did. The only money that we took that day was
from Naples Heritage Golf and Country Club because that was not an
alternative calculation. That was a different kind of a situation. As I
recall, it was totally set aside. It was a different issue, and I
Page 5
October 10, 2000
remember being told at that time, this has nothing to do with the
alternate calculation. I'm just asking some questions. I'm not trying
to be argumentative, but I just want to clarify this because I can't
understand why we're doing September 12th when I was under the
impression that that was handled correctly and that the problem came
in the September 26th meeting, when there were some other
alternatives that were offered.
COMMISSIONER MAC'KIE: David, maybe you can help.
COMMISSIONER BERRY: Please help me.
MR. WEIGEL: I'll try to. Thank you.
Both at the September 12th meeting and at the September 26th
meeting, Mr. Cautero, Mr. Olliff referenced the fact that the advice
of the county attorney and the clerk, the legal advice and opinion was
that in fact it was appropriate to allow them to have sufficient due
process to come before the Board. We did not want to have an
administrative determination without letting these petitioners come
before the Board. Obviously this involves property and property
rights and the application and implementation of our law to make a
demand for property, that is, money or impact fees, from them. So,
from that standpoint it was appropriate and necessary. We jointly
opined for these matters to come to the Board.
What we also felt in unison was that, based upon the facts that
existed, that is, the timing of permits that had issued for the various
golf course developments, some, if not all related to subdivision
improvements also, that the timing of those and the requirements of
the ordinance made it impossible for the Board to have the legal
authority to grant alternative impact fees themselves because of the
fact that these -- the timing and other requirements were requisite,
were requirements, prerequisites, to be in a position for anything
different than the general formula application of the county road
impact fee for these golf courses, which is clearly stated in Appendix
5 of the ordinance.
Page 6
October 10, 2000
So, the question came up in the first meeting, and it came up
again at the second meeting to me about, well, if staff has made some
problems in its administration, or in fact has even in various cases
arguably, and the facts are in some degree still to be determined, if
the staff had not either received a check when offered, or if in fact
the staff had calculated fees on behalf of the developer, and the
appropriate data and traffic analyses had not been presented, for all
these things that were requisites, which must be done in a timely
way, the Board did not have the legal authority to grant them an
additional impact fee -- or alternative impact fee hearing.
That is, I think, the sum and substance of most of the hearing
items, particularly that were heard on September 12th. The Board
did not grant alternative impact fees on that date, is my recollection,
but they did set it up for hearing in the future. And both the clerk
and I have continued to review the matter and meet on this, and we
believe that the Board in fact does not have the legal authority to
grant alternative impact fees, based upon the failures of the
developers, the applicant owners, in the first place.
Another question that came up was, well, we have issues where
the staff has made some mistakes. Is there any ability for equitable
adjustment? And my advice at the first meeting and at the second
meeting was, that's not in the law, I don't read it in the law. I can't
tell you that it's there in the law. If there is an adjustment to be had,
it would have to be determined by a court, and so when we get to this
issue later on, Commissioner, and all of you Commissioners, we will
have a discussion about what we think may be a remedy at law which
will answer the questions for all of us and potentially avoid an
adversarial lawsuit or lawsuits in the future.
That's not to say it doesn't require court action, but we have a
thought to approach this and ask the court some very cogent
questions as to what is the limit of the Board's authority, and what
are the problems that developers bring forward with their own
Page 7
October 1 O, 2000
timing, and let the court help us with that decision.
COMMISSIONER BERRY: Okay. I asked a question, Dwight,
regarding what happened on September 12th versus what happened
on September 26th. I wasn't here on September 26th. I thought -- I
don't mind reconsidering if this is what has to be, but I thought on
September 12th that we had dealt with those items in a correct
manner because, number one, we gave nothing to anybody. Okay?
We said no, no, no --
COMMISSIONER MAC'KIE: Except one.
COMMISSIONER BERRY: -- I believe, with the exception of
the last one, which had Naples Heritage Golf and Country Club,
which was, as I would recall, was a different situation than an
alternative -- they didn't pay under protest or anything like that. It
was a different situation. But I thought that we had handled Items 3,
4, 5 and 6 correctly, and I was just wondering why we were going
back on those items. If we had handled them correctly, why were we
going back over them again.
MR. BROCK: My name, for the record, is Dwight Brock. I'm
the Clerk of the Circuit Court.
Commissioner, on September the 12th, I think all of the
alternate impact fee hearings were denied--
COMMISSIONER BERRY: That's correct.
MR. BROCK: -- with the -- well, I think all of them were. I
think one of the issues that was before this Board at that point in time
was to define the acreage of the golf course. And in that particular
scenario, the Board defined the acreage of the golf course. There is
no definition in the ordinance. That is a legislative determination.
As it relates to the items on September the 12th from the Clerk of the
Circuit Court standpoint, the Clerk of the Circuit Court does not find
a legal impediment in cutting a check in direction with the Board on
that particular day. As to the one for the reduced acreage.
As it relates to the other issues on that particular day, obviously
Page 8
October 10, 2000
the clerk would not be in a posture of having to cut a check, so the
Board has no problem with that. On the 26th, some of the items that
were brought before the Board would require the clerk to cut a check,
and my legal counsel, myself, and Mr. Weigel and his staff have
come to the conclusion that that presents a problem.
The reason, as I understand it, that, in conversations between the
county attorney, staff, and my office, that we were going back
through all of them, and we had concerns about all of them. It all
turns on one issue, and that's the legalities of the ordinance, and from
our perspective, the county attorney staff and my staff, came to the
conclusion that the best thing to do for everyone in that scenario was
to revisit the legal issue and then once that legal issue is defined, then
to review all of those with a clear understanding of what the legal
requirements of both the Board of County Commissioners and the
clerk are.
It gives you an opportunity to determine what the legal issue is
so you know very clearly what it is that is your responsibility under
the ordinance, and then gives you an opportunity to apply your
discretion with knowledge of what those constraints are. And it only
would seem fair to me, and I think in conversations with the county
attorney's office, that you should revisit all of those issues with full
knowledge of what the legal constraints the ordinance places upon us
and apply them and use your discretion with that full knowledge
across the board, so that everyone is treated fairly.
COMMISSIONER MAC'KIE: And Barbara, just to add to that,
for example, we may have had different reasons for the decisions we
made on the 12th, but I approached the hearings on the 12th and the
26th from the same perspective, and that was that if our staff had
made mistakes, I wanted to consider the equities of--
COMMISSIONER BERRY: Fairness.
COMMISSIONER MAC'KIE: -- of fairness, and the legal
question across the board is, do we have the right to look at what's
Page 9
October 10, 2000
fair, or do we have to ignore what we think is the equity.
COMMISSIONER BERRY: Well, I think for right now, the
thing -- I don't want to go any further into this because we are going
to hear the item at a specific time, or I guess -- are we going to hear it
at a specific time?
COMMISSIONER MAC'KIE: No.
CHAIRMAN CARTER: No. We're not going to hear it at a
specific time. But once we approve the agenda, we can hear it. So --
COMMISSIONER BERRY: That was my main concern was to
set the agenda, and I wasn't sure if we really needed to include
September 12th in that agenda item, but it appears that we do have
to. So, I just had a question. That's all. Thank you.
CHAIRMAN CARTER: Thank you. Mr. Brandt?
COMMISSIONER BRANDT: For the record, Mr. Chairman, I
had the same concerns that Commissioner Mac'Kie has expressed,
and I still have a concern about fairness.
CHAIRMAN CARTER: Likewise. And that's why you see the
three commissioners, myself, you, and Commissioner Mac'Kie are
bringing this back for reconsideration.
COMMISSIONER BERRY: And I can count to three.
CHAIRMAN CARTER: You're marvelous, Barbara. Thank
yOU.
All right. Any additions or corrections, Commissioner Berry?
COMMISSIONER BERRY: I have none. Thank you, sir.
COMMISSIONER BRANDT: Nor have I.
COMMISSIONER MAC'KIE: None.
CHAIRMAN CARTER: Commissioner Mac'Kie?
Nor do I.
COMMISSIONER MAC'KIE: Motion to approve the consent
agenda summary then to regular agenda as changed.
CHAIRMAN CARTER: Is there a second to that?
COMMISSIONER BRANDT: Second.
Page 10
October 10, 2000
CHAIRMAN CARTER: There's been a first and a second.
in favor signify by saying aye.
Opposed by the same sign.
(No response.)
CHAIRMAN CARTER: Motion carries.
All
Page 11
AGENDA CHANGER
BOARD OF COUNTY COMMISSIONERS' MEETING
OCTOBER 10, 2000
ADD: Item 10 H - Discussion regarding new Commissioner attending
Florida Association of Counties. (Commissioner Carter)
CLARIFICATION BY THE COUNTY ATTORNEY' Item 10(G) is be clarified to
reflect that the items to be reconsidered are as follows:
September 12, 2000, Items 12(C)
3)
4)
5)
6)
7)
Review hearing to determine eligibility to submit altemative road
impact fee calculations for Tiburon, Pelican Marsh and Bay Colony golf
cOUrSeS.
Review hearing to determine eligibility to submit an alternative
road impact fee calculation for two nine-hole golf courses at Grey Oaks.
Review hearing to determine eligibility to submit an alternative
road impact fee calculation for the Valencia at Orangetree golf course.
Review hearing to consider an alternative road impact fee
caIculation for Vanderbilt Country Club.
Review hearing to consider an alternative road impact fee
calculation for Naples Heritage Golf and Country Club.
September 26, 2000, Items: 12(C)
3)
4)
5)
6)
7)
Review Heanng to consider an alternative
calculation for the golf course at The Strand.
Review Hearing to consider an
calculation for Naples Grande Golf Course.
Review Hearing to consider an
calculation for Golf Club of the Everglades.
Review Hearing to consider an alternative
calculation for Naples Lakes Country Club.
Review Hear/ng to consider an alternative
calculation for Cedar Hammock Country Club.
Review Heanng to consider
calculation for Old Collier Golf Club.
road
alternative road
alternative road
road
road
an alternative road
impact fee
~mpact fee
~mpact fee
impact fee
impact fee
impact fee
NOTE:
Item #4A,B&C
October 10, 2000
MINUTES OF REGULAR MEETING OF SEPTEMBER 12,
PELICAN BAY BUDGET MEETING OF SEPTEMBER 13, AND
BCC BUDGET HEARING OF SEPTEMBER 20 - APPROVED AS
PRF, SF, NTF, D
COMMISSIONER MAC'KIE: Motion to approve September
12th, 13th, and 20th of 2000, minutes of the Board of County
Commissioners.
COMMISSIONER BRANDT: Second.
CHAIRMAN CARTER: All in favor signify by saying aye.
Motion carries.
Item #5Al
PROCLAMATION PROCLAIMING OCTOBER AS "VISION
AWARF, NESS MONTH"- ADOPTF, D
All right. We're ready to move into and begin with
proclamations, and Commissioner Mac'Kie, you have a proclamation
for us on Vision Awareness Month.
COMMISSIONER MAC'KIE: I do, and would like to ask Ms.
Jane DiPoala. Did I say that anywhere close? Tell me how to say
that.
MS. DIPOALA: DiPoala.
COMMISSIONER MAC'KIE: DiPoala. If you'd come
forward, please, and turn and face the audience while I read the
proclamation, we'd appreciate that.
Whereas, individuals' values may be measured by their
capability to participate as contributing members of their community
through their ability to work, purchase goods and services, and
Page 12
October 10, 2000
access and participate in all aspects of community life; and,
Whereas, the loss of vision may affect the ability of an
individual to navigate, to find employment and housing, to access
technology and medical services, and to otherwise lead an
independent life while contributing to the community; and,
Whereas, understanding by leaders, business proprietors,
employees, service providers, and fellow residents about the effects
of vision loss is essential to integrating them into the mainstream of
the community; and,
Whereas, obtaining knowledge about current laws, rights, skills,
and abilities of this population will enable persons with visual loss or
who are blind to have equal access to services, businesses, and
activities benefiting them and the entire community; and,
Whereas, this collective knowledge will continue to afford these
individuals the opportunity to make quality choices, to maintain their
independence, and to remain contributing members of their
communities; and,
Whereas, as the public and businesses learn more about the
Americans with Disabilities Act, greater opportunities will be
available to persons who are blind or visually impaired; and,
Whereas, all residents are encouraged to seek and learn
information about the abilities of persons who are blind or visually
impaired to learn the most effective ways to provide assistance and to
increase their knowledge about the rights and laws that provide
assistance to this population in fully integrating them into all aspects
of society;
Now therefore, be it proclaimed by the Board of County
Commissioners of Collier County, Florida, that October 2000 be
designated as Vision Awareness Month in Collier County and urge
all residents to seek to learn about vision impairment.
Done and ordered this 10th day of October 2000, Board of
County Commissioners, Jim Carter, Chairman.
Page 13
October 10, 2000
I would like to move acceptance of this proclamation.
COMMISSIONER BERRY: Second it.
COMMISSIONER BRANDT: Second.
CHAIRMAN CARTER: We have a first and a second. All in
favor signify by saying aye.
Opposed by the same sign.
(No response).
CHAIRMAN CARTER: Motion carries.
COMMISSIONER MAC'KIE: If you'd like, you can say a few
words.
MS. DIPOALA: I'd like to thank the Board for the
proclamation for Vision Awareness Month. The Division of Blind
Services helps the visually impaired persons of all ages, from babies
to seniors, to maintain or achieve their independence, and if they so
desire, obtain and maintain employment. We would like to ask all of
you to act as our talent scouts, to be on the lookout for visually
impaired persons who could benefit from our services. Thank you.
Item #5A2
PROCLAMATION PROCLAIMING OCTOBER 23-OCTOBER 30,
ti -
CHAIRMAN CARTER: Thank you. Commissioner Berry, you
have a proclamation for us on Red Ribbon Week.
COMMISSIONER BERRY: I do, Mr. Chairman. Could we
have Angela and Robert Hignite -- I hope I said that correctly.
Close? Good. And Mr. Trosh (phonetic), I recognize as well. If
you'll come up here and turn around and face the camera so people at
home can see you. The proclamation reads as follows:
Whereas, prevention resources have been dramatically cut,
programs and community based efforts are asked to do more with '
Page 14
October 10, 2000
less, and community services compete for remaining limited support;
and,
Whereas, substance abuse is the most common risk factor
impacting our behavioral health, particularly for our young people
(furthering delinquency, teen pregnancy, HIV/AIDS, child abuse and
violence, and so forth); and,
Whereas, families face unprecedented pressures and stress
imposed upon them by the overwhelming nature of today's society,
and,
Whereas, prevention and intervention efforts continue to
influence non-use of alcohol, tobacco and other drug abuse, it still
remains prevalent in every Florida community; and,
Whereas, Floridians must recommit to strengthening families,
neighborhoods, and communities and educating our citizens about
prevention focused initiatives to counter the problems of substance
abuse; and,
Whereas, research and data reflect unquestionably that
prevention works and that our commitment to education, prevention,
and positive lifestyles is imperative; and,
Whereas, the Red Ribbon represents the Nation's united effort to
support prevention and build healthy and safe communities and to
remember the brutal murder of Federal Agent Enrique Camerana;
and,
Whereas, the 2000 Florida Red Ribbon Celebration focuses on
the importance of supporting our young people and creating an
environment in which our youth may flourish; and,
Whereas, the Florida Prevention Association, Inc. Coordinates
year round prevention programs throughout the state; and,
Whereas, the 2000 Florida Red Ribbon Celebration asks that
citizens of Florida become motivated and involved in alcohol and
other drug abuse prevention.
Now therefore, be it proclaimed by the Board of County
Page 15
October 10, 2000
Commissioners of Collier County, Florida, that the week of October
23rd through the 30th, 2000 be designated as Red Ribbon Week, and
encourage all Collier County citizens to wear a red ribbon to
symbolize our commitment to healthy and safe environments for
each citizen, and to participate in events throughout the week and
throughout the year that support positive lifestyles.
Done and ordered this 10th day of October, 2000, Board of
County Commissioners, Collier County, Florida, James Carter,
Chairman.
Mr. Chairman, I'd like to move acceptance of this proclamation.
COMMISSIONER BRANDT: Second.
COMMISSIONER MAC'KIE: Second.
CHAIRMAN CARTER: All in favor signify by saying aye.
Motion carries.
MR. HIGNITE: I'd like to just thank the entire Commission and
Board for this opportunity, and as the proclamation stated here, that
entire week, we would like to see everyone in this county wear that
red ribbon to support an alcohol free community, and we appreciate
you recognizing this week for us. Thank you very much.
Item #5A3
PROCLAMATION PROCLAIMING OCTOBER 9-15, 2000 AS
"MARCO ISLAND FILM FESTIVAL WEEK" AND THAT
OCTOBER 12, 2000 BE DESIGNATED AS "CELESTE HOLM
DAY"- ADOPTFJD
CHAIRMAN CARTER: Thank you. And Commissioner
Brandt, you have a proclamation for us for Marco Island Film
Festival week to be designated as Celeste Holm Day?
COMMISSIONER BRANDT: I do, Mr. Chairman, and if Mr.
Maury Dailey will come forward and if you two will stand and face
Page 16
October 10, 2000
the camera.
Proclamation: Whereas, the Marco Island Film Festival serves
to showcase Collier County to filmmakers, celebrities, and festival
visitors; and,
Whereas, the Marco Island Film Festival has contributed to the
economic development of the tourism industry in Collier County;
and,
Whereas, the Marco Island Film Festival has gained regional,
state-wide, and national recognition for the advancement of
cinematography; and,
Whereas, the Marco Island Film Festival has received financial
support since its first festival in October of 1998 from Collier County
T.D.C. funding; and,
Whereas, the Marco Island Film Festival Lifetime Achievement
Award celebrates persons whose work has helped inspire and define
cinema; and,
Whereas, Celeste Holm will follow lyricist Sir Tim Rice and
stage and screen star Gwen Verdon as a recipient of the Marco Island
Film Festival Lifetime Achievement Award; and,
Whereas, Celeste Holm's career spans six decades with
numerous films and awards including an Oscar for the Best
Supporting Actress; and,
Whereas, Celeste Holm has actively supported cinematography
as Chairman of the Film Commission for the State of New Jersey,
Research Scholar at Claremont College in California, and as an
appointee to the National Arts Council.
Now therefore, be it proclaimed by the Board of County
Commissioners of Collier County, Florida, that October 9th through
15th, 2000 be designated as Marco Island Film Festival Week, and
that October 12, 2000 be designated as Celeste Holm Day in Collier
County, Florida and urge all citizens to support the Marco Island
Film Festival and particularly to celebrate the lifetime achievements
Page 17
October 10, 2000
of Celeste Holm.
Done and ordered this 10th Day of October 2000, Board of
County Commissioners, Collier County, Florida, James Carter,
Chairman.
I make a motion that we approve this.
COMMISSIONER BERRY: Second it.
CHAIRMAN CARTER: All in favor signify by saying aye.
Motion carries.
If you'd like a remark or two?
MR. DAILEY: Just very briefly, I wanted to thank you for the
support, for three years of support, and we're very excited about
Celeste Holm's 60 years of dedication to the entertainment field and
invite all of Collier County to participate in the Film Festival starting
tomorrow with a viewing, public viewing. Thank you very much.
Item #5B
EMPI,OYEE SERVICE AWARDS - PRESENTED
CHAIRMAN CARTER: Thank you.
All right. One the greatest parts of our Board meetings is to
have the opportunity to present service awards to our employees, and
beginning with our five-year employees, would Ms. Linda Sujevich,
five years with Real Property, come forward this morning so we can
recognize her.
(Applause.)
CHAIRMAN CARTER: Thank you. Congratulations.
Okay. The next person we'd like to recognize this morning is
Louis Massarone, who is five years with Parks and Recreation.
(Applause.)
CHAIRMAN CARTER: Congratulations. You can hang this
on your wall. Congratulations.
Page 18
October 1 O, 2000
Next we would like to recognize Mr. William Degenhart from
Purchasing Department, five years.
MR. DEGENHART: Thank you.
CHAIRMAN CARTER:
CHAIRMAN CARTER:
with EMS.
(Applause.)
Thank you and congratulations.
And Mr. Neil Maclarty, five years
COMMISSIONER MAC'KIE: Would that be the
award-winning EMS that just won like a national award in addition
to best in the state? Oh, yes. Congratulations. Oh, no, a national
award in addition to -- best in the state, then best in the country. We
knew that.
CHAIRMAN CARTER: Congratulations. Standing tall in
Collier County one more time.
And for 10 years, Mr. Robert Casey from Wastewater.
(Applause.)
CHAIRMAN CARTER: Robert, thank you.
COMMISSIONER MAC'KIE: Thank you, sir.
COMMISSIONER BRANDT: Thank you.
COMMISSIONER BERRY: Thank you so much.
CHAIRMAN CARTER:
Recreation, 15 years.
(Applause.)
CHAIRMAN CARTER:
And Mr. John Walters, Parks and
Thank you, John.
COMMISSIONER MAC'KIE: Thank you, sir.
COMMISSIONER BRANDT: Thank you.
COMMISSIONER BERRY: Thank you.
CHAIRMAN CARTER: And Sharon Long, 15 years with
Planning Services. (Applause.)
CHAIRMAN CARTER: Congratulations, Sharon.
MS. LONG: Thank you so much.
Page 19.
October 1 O, 2000
COMMISSIONER BERRY: Congratulations.
COMMISSIONER MAC'KIE: Congratulations.
CHAIRMAN BRANDT: Congratulations.
CHAIRMAN CARTER: We have a special presentation to
make this morning, and Mr. Olliff, would you like to say a few words
about this gentleman and the wonderful service he has provided for
us?
MR. OLLIFF: IfI could get Mr. Ed Finn to come up to the
front?
(Applause.)
MR. OLLIFF: We went through a period of time here in county
government where, to be real honest with you, we were running
awfully thin, and it's a rare treat to be able to have some employees
that you can ask to step up and assume a bunch of extra additional
duties and they not only do it, but they do it in a way that just makes
you and the entire county proud.
I think Ed Finn is one of those kind of people, and he served
Collier County as both the Public Works administrator, then when we
reorganized, Ed was instrumental in putting together the
reorganization plan for us and then ended up serving as our Public
Utilities administrator after that, and I think the joke around our
office is that if we give out Academy Awards for best actors, Ed Finn
is certainly standing right up front. But, ladies and gentlemen, Ed
Finn has really done a yeoman's job for Collier County, and we'd like
to thank him this morning. (Applause.)
CHAIRMAN CARTER: On behalf of the Board of County
Corranissioners, we would like to present this plaque to you that
says, in appreciation for your dedicated service to the Collier County
government as a Public Utilities administrator, January to October,
2000. It's a pleasure, Ed. Thank you for your hard work.
MR. FINN: Thank you, sir. Appreciate that.
Page 20
October 10, 2000
COMMISSIONER BRANDT: And a TV star.
MR. FINN: Thank you very much. I'll just take one minute.
Tom, very kind words. I appreciate them. It's really a privilege to
serve. It's even more of' a privilege to have my small contributions
recognized, and I want to thank Tom and the Board for all their
support. Thank you very much. (Applause.)
CHAIRMAN CARTER: Okay. That takes us to Item 6(a),
approval of the Clerk's report, analysis of changes to reserves for
contingencies.
COMMISSIONER MAC'KIE: Actually, I think there's not
anything there.
CHAIRMAN CARTER: I don't see anything, but anything that
needs to be said or done?
MR. OLLIFF: No, sir.
COMMISSIONER MAC'KIE: Nope.
Item #7A
REQUEST BY MS. NINA BIRTOLO FOR PUBLIC PETITION TO
DISCUSS 2000 AND 2001 NAPLES JAYCEES JULY 4TM
FESTIVAL AND FIREWORKS DISPLAY- STAFF TO MOVE
FORWARD AND SUPPORT REQUEST OF THE NAPLES
JAYCEES
CHAIRMAN CARTER: Okay. We'll just move right on. We
go to Item 7(a), public petitions. As you know, when you come and
present in front of the Board, you have an opportunity to speak to us
for a time period of what?
COMMISSIONER MAC'KIE: Ten minutes.
CHAIRMAN CARTER: Ten minutes to present your petition
to us. The first one will be by Ms. Nina Birtolo for public petition to
Page 21
October 10, 2000
discuss 2000 and 2001 Naples Jaycees July 4th Festival and
Fireworks Display.
MS. BIRTOLO: Good morning. For the record, my name is
Nina Birtolo. I'm the management vice president for the Naples
Jaycees. With me I have Angela Robinson, who's our community
vice president, Lisa Douglas, who is our president, and Eda Marvin,
who's our PR director.
And two things -- we did this last year, and we're hoping that
you provide us with this. We have some appreciations from last year
that we'd sort of tack onto our little short presentation, so if you
would allow us, we'd like to appreciate and thank each of the
commissioners and two of the county employees that really have
made this festival for the last four years -- or three years be
successful. So if you can indulge us, and for those -- these were
under the ethics thing, so, just for the record, these were --
CHAIRMAN CARTER: No intrinsic value, right?
MS. BIRTOLO: These were under $20.
COMMISSIONER MAC'KIE: And they're their red, white, and
blue. That's great.
CHAIRMAN CARTER: Thank you.
COMMISSIONER BERRY: Thank you very much.
MS. BIRTOLO: The two employees that we'd like to recognize,
and I think one's in the back. Mr. Murdo Smith from Parks and
Recreation. Murdo, if you could come up, please? Murdo not only
helped us at the 4th of July Festival in Parks and Recreation, but
when we were getting slammed by over 10,000 people at the park
and we didn't have enough people to flip hamburgers, Murdo jumped
right in there and helped us. Thank you.
COMMISSIONER BERRY: All right.
(Applause.)
MS. BIRTOLO. And I hope that this is the very first thing he
has from somebody outside that says "county manager," but to our
Page 22
October 10, 2000
county manager, Tom Olliff, I don't think we would have been as
successful for the last two years without his support as Public Works
Director, but also as our county manager now, and we appreciate that
very much. Thank you. (Applause.)
Now I'd like to turn it over to our community vice president,
Angela Robinson and Eda Marvin. If you could see it right now, it
says 4th of July.
MS. ROBINSON: That's right.
COMMISSIONER MAC'KIE:
the visualizer--
They're trying to use -- it's not
CHAIRMAN CARTER: Powerpoint?
COMMISSIONER MAC'KIE: Yeah.
MS. BIRTOLO: We just had it up a minute ago.
MS. ROBINSON: Yeah. Compaq showed real well.
MS. BIRTOLO: Compaq was there.
CHAIRMAN CARTER: Isn't modem technology wonderful?
MS. ROBINSON: Actually, yes, it is.
CHAIRMAN CARTER: When it works.
UNIDENTIFIED MEMBER OF THE AUDIENCE: Use Alt
F8.
MS. BIRTOLO: Alt F8.
CHAIRMAN CARTER:
Tom.
All right. Thank you very much, sir.
You sure brought in the right guy,
MR. OLLIFF: Hey, I'm impressed.
COMMISSIONER MAC'KIE: That's a public utility of sorts.
COMMISSIONER BERRY: It is today.
MS. ROBINSON: First of all, thank you very much for this
opportunity to bring forth for you our fourth annual Naples Jaycees
July 4th Festival 2001. What our Jaycees -- Jaycees is a non-profit
organization that leads -- provides leadership and development
training. Excuse me. The goal of our organization is to provide our
Page 23
October 10, 2000
members their individual and leadership abilities while also
participating in our community. What are Jaycees? Excuse me.
MS. BIRTOLO: I'm sorry. We're having a little technical
difficulty. Angela will do a good job. She's a little nervous. She's
never been before the Commissioners, and that's what this
organization is about, is leadership training.
MS. ROBINSON: What we wanted to talk about today is a
little bit about what specific Jaycees are in the community. We have
past Senators, we have county commissioners, we have late Governor
Chiles. Yes, Jim Carter. Past president from up north, and he's been
a very avid Jaycee. We have fire fighters, sheriffs officers, other
non-profit directors, business owners, county employees and state
employees, bank executives, restaurant managers, school teachers,
accountants, lawyers, and mechanics.
The history of the July 4th Festivals, we began in 1998. It was
the very first event at Sugden Regional Park. Sugden Regional Park
didn't even have lighting. We sort of put temporary lighting out there
and it grew from there, and it's one of the best parks in the county,
and we're pretty excited to continue the tradition there.
In '99 we brought about 5,000 in. We wanted to double that
goal in the year 2000, and we did that. In the year 2000, we
celebrated the millennium in such a way that people that were at the
event went, that was the best fireworks show I've ever seen. And I
actually stood there and I have to admit that I cried like a baby the
entire time because it really was the most phenomenal display that
I've ever seen, and a lot of effort went into that by both the county
and by the Jaycees, and it was a day to remember.
Twenty-five thousand people or plus have really been exposed
to Sugden Park because of this festival, and we want to make this
next year of 2001 the best fireworks display ever. We utilized sunset
fireworks last year, and they used the circumference of the front of
the lake about 50 to 100 feet. They intend to use 500 to 700 feet, and
Page 24
October 10, 2000
the fire department has already approved that, so you'll actually see
arcing across the lake this year, which is going to be such a
phenomenal thing.
Most of the people we talked to that left in a leaving pattern
said, you know, we're going to come back next year. We're going to
bring all our friends, and if that's the case, I'm a little frightened that
we'll need Murdo and all Parks and Recreation to help us sell hot
dogs, but it was really a phenomenal event.
The Year 2001 we want to host the Festival again with your
support. We have spoken to Parks and Recreation, and they again
have put in their budget the same appropriations they did last year.
The event's designed to bring unity on the best day possible,
Independence Day. It's a family event designed to interact with
children, to interact with families, allow people to eat pie and slam
pie in each other's faces, sock races, tricycle races. It was a great
time, and it is a great time. The watermelon seed spitting contest
seemed to be the best, if we could just get the participants to spit in
the direction they need to and not their spouses, it would be a much
better thing.
The plan really is to host beginning at 2 o'clock. Last year we
started at noon, and we thought maybe that was a little too early. We
did have about 500 people and then an onslaught of like 4 o'clock in
the afternoon. They just kept coming, and we couldn't get them to
stop.
One sheriffs officer said, I've never seen this amount of people
in one place, at least in a place when it's raining because they were
coming in the middle of a rain storm, and we were really shocked.
So, again, we'd like to do the free trolley service from the
courthouse, using the courthouse as our base station, take them down
to the park. The Gulf Coast Skimmers will grace the lake again and
do their patriotic show, which is a really cool thing.
On a side note from that, John Gursoy has recently won an
Page 25
October 1 O, 2000
award from the Florida Jaycees as an outstanding young religious
leader, and we applaud him for that effort, and we are working
closely with them to do some remodeling of a boat house out there as
well.
Some of the other activities they'll be able to do carnival rides
and bounce houses. We added something new this year, the
individual carnival games where we had people throwing darts and
picking ducks and that kind of stuff, and it was really neat. The
carnival ride gentleman said already that he'd love to come back to
Naples and he really likes this area, and Collier County's a place he
might even want to come live. So we thought that was pretty cool.
We're bringing people in and they want to stay. Although that
may not be so cool. I'm not quite sure, as a resident of 28 years.
Clowns and jugglers, and we also have two country bands that
have already signed contracts with us for next year. One of them was
there this past year, and they were part of last year's, Old Cypress,
and the other is Buckshot. They're very, very, crowd favorites, and
that's the reason we want to bring them back. Again, Gulf Coast
Skimmers will be back on the lake.
B 103 radio station did a live remote. We weren't sure at the
time if it was good or not because it didn't seem like they were
coming in flocks and bounds, but every time that we'd see like a
hundred people come, every 10th or 13th person would either have a
B 103 shirt on or a sticker or something. I don't know if they were
giving them out at the door or what, but anyway, they'll be back on
site again.
And we will be doing a simulcast radio show -- I mean, the
simulcast music, $30,000. I've spoken to County Manager Olliff,
too, about actually getting sound speakers throughout the park which
we don't really have. Last year we put them up in that event. We are
working right now with a surplus company that works with Disney
World, and hopefully by the year 2001, maybe 2002 because we
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October 10, 2000
don't always put those time constraints on us, maybe the Jaycees can
actually help in actually putting a permanent sound system in at no
cost to the taxpayers. So we're hoping to try and do that for you. We
can't promise it, but we're going to try. Is that the beep that we're
done? Okay. Wrapping up--
CHAIRMAN CARTER: You need to wrap up.
MS. ROBINSON: Okay. Thank you. Wrapping up, what we
can say is, our goals really are to actually have this an event where
we raise money for the back to school shopping spree we do in
August. This last year we were successful in doing that, and we hope
to have your support in doing that again.
Overall, we're asking for the same things we asked for last year
in fees, assessments and an overall contribution of $25,000. We
actually are asking for $25,800, an investment of $800 improvement,
but we also are increasing our fireworks display of $5,000 from last
year. So, we appreciate your support. We know the winners in this
are you, are us, the children, the families, and all of Collier County
that come out and watch this display at Sugden Regional Park.
Thank you.
CHAIRMAN CARTER: Thank you.
COMMISSIONER MAC'KIE: I'd like to ask staff to go forward
and support their request and just give direction to staff to work with
them and see if we can't continue on the success.
COMMISSIONER BERRY: Works for me.
CHAIRMAN CARTER: Works for me.
COMMISSIONER BRANDT: Yes.
CHAIRMAN CARTER: Thank you. Jaycees, you do a great
amount of good work for this community, and we certainly
appreciate everything you've been doing.
SPEAKER: Excuse me. I'd like to add just one thing real
quick. We are hosting our annual haunted house, which happens to
be the best in the State of Florida, and it's going to be running this
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October 1 O, 2000
year again at Pittman Funeral Home on the East Trail, like 3080 East
Tamiami Trail. It starts the 21st to the 31st. We'd like to invite
everybody to come on out and enjoy it because not only are you
going to have a lot of fun, get the heck scared out of you, but all the
funds go back into our community. So thank you very much.
CHAIRMAN CARTER: Yeah. That's a great event. My son
took my granddaughter to it last year. She got through it fine. I don't
think he's recovered yet.
Item #7C
REQUEST BY MR. HOWARD MATSON FOR PUBLIC
PETITION TO DISCUSS ZON1NG VIOLATION AND IMPROPER
PERMITTING, LOT 77 PALMETTO DUNES - PETITIONER TO
GO THROUGH INTERPRETATION PROCESS WITH STAFF;
STAFF TO RE-VISIT THE SITE
All right. Moving to public petition, No. B has been deleted,
No. C we have Mr. Howard Matson for public petition to discuss
zoning violation and improper permitting, Lot 77 Palmetto Dunes.
MR. MATSON: Thank you for hearing my petition. This is a
matter that should have been settled simply at the lowest level. It's
become very complex, and I'm sorry to have to bring this before the
Board. I have furnished each of the Board members a booklet that
contains all the documents, summary of the documents, pictures,
maps, and whatever, and the county manager was presented a copy
of this same book when I filed for petition.
CHAIRMAN CARTER: For the record, sir, will you please
state your name?
MR. MATSON: My name is Howard Matson.
CHAIRMAN CARTER: Thank you.
MR. MATSON: And I live at 117 Palmetto Dunes, and I live
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October 1 O, 2000
adjac -- I'm the adjacent property owner to Lot 77. I am the wounded
property owner. All right. Start this out.
Palmetto Dunes section is a tract subdivision. It contains 121
lots. It's recorded with a PUD and is recorded as tract A map, and
shows the layout of all the lots. Palmetto Dunes section is a circle,
contains 131 lots, a continuous circle a mile long. Many of the lots
are irregular shapes, and some of them are square and others are
regular shapes. There are only two comer lots, and they're where
Palmetto Dunes Circle intercepts Augusta Boulevard at the entrance.
There's only one entrance to the circle.
When -- covered in the PUD is also -- or covered in the tract
also is the common area, and it's called Palmetto Dunes Garden. And
this is very important because it is adjacent to Lot 77, and it is Lot
77, including 20 other lots, have access to the Palmetto Dunes
Garden, and have the responsibility of maintaining and taking care of
flood control among other things. The plots are in here. They show
-- I have included a copy of the plots and a copy of the maps in there.
All right?
Lot 77 was permitted. The builder filed layout plans with the
building plans, and on this building plan, it showed the house laid
out, it showed two lanais, and it showed a pool pump. It showed a
setback from the common property line of 28 foot, 6 inches. There
was -- a survey was prepared, and this was prepared on July 5th,
some 40 days later than the documents had been submitted to the --
for permitting.
On this survey, it showed again the house layout was on there,
and it showed a dimension of 26 and a half foot from the lanai to the
rear property line. And the rear property line is adjacent to my
property.
All right. When the builder laid out the forms, all ready for
pouring the concrete the next day, these forms were laid out some 8
to 10 foot, 10 foot closer to the property line than his plat plan
Page 29
October 10, 2000
showed, 8 foot closer than the survey showed, and my complaint was
filed.
When I filed the complaint with the county, also filed the permit
that was issued, showed a rear setback of 10 feet. Now, in the PUD,
it shows the rear setbacks, every house covered by Tract A has a
front yard and it has a back yard. The front yard is 25 feet, the back
yard is 25 feet.
There are some restrictions, but nothing that carries it down
anywhere close to the 10 foot line. Also, when I filed this letter, I
made note that this property is adjacent to the Palmetto Dunes
Garden, and this is in a flood control plain. And the property, all 21
property owners, have a responsibility of seeing that flood control is
recognized. And this is most important because when we had that
flood of August 24th, 1995, Palmetto Dunes was completely flooded.
This garden area down here was flooded up dangerously to a number
of our homes including my own. All right?
All of this was made aware of the purchaser of the land, of the
property, when they bought the property, and they were shown
pictures of the flood and everything. But more important, it was
made -- a letter to the county was made aware of it, that actions
would be taken to make sure that the drainage to this Lot 77 goes to
the street. All other drains were plugged up. It was necessary when
the home was finished and that the drains go through the street. All
right?
The property was flagged. Job site was shut down until the
builder come through and showed a survey where the proper location
of the house was, 25, 26 feet. Nothing was done to correct the permit,
which stated a 10 foot rear setback.
So, this again was called to the attention of the company, and
construction went on on the house, after the two week-- went up
there properly, forms were properly and the permit was corrected
because this had been basically false information that had been
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October 10, 2000
provided with the builder's intention. And this was so noted in my
letter.
On August 10th, here comes the construction equipment while
I'm gone. When I come home, construction equipment is there, and
they had dug a pool cavity on the 1 O-foot line. Adjacent to my
property, they left huge piles of dirt equal to a five ton dump track on
each side of it. The dirt was totally blocking the drainage so that
flooding would occur, more flooding would occur down on the
garden area.
Requested the builder to get this dirt removed, and he told me
basically that -- mind my business. And the pool contractor done the
same thing, and he said that the only one he obeys is my county. So
that was the response that I got. There was negative responses from
the property owners to correct this situation.
Today, one of those piles of dirt still sits there adjacent to my
property, and is equivalent to a five ton truckload. My property was
flooded with 3.6 inches of rain. My whole front yard was flooded by
it. The transformer down in the back yard was flooded by a seven
and a half inch height. So that part of it finally got corrected.
But anyway, after numerous conversations, scheduled a hearing
with representatives of the departments down there. The Department
of Environmental Services responsible planner and the director of
permits and the county attorney and his assistant, assistant county
attorneys were present at this meeting, and at that point, I again
presented my case that nowhere could this lot -- wait. Let me back
up a minute.
So anyway, when I got a response from the county, the response
was, the subject property is a comer lot with two front and two side
yard setbacks. The respective setbacks are 25 feet and 10 feet. In
other words, we have two 25 foot front setbacks. We have two 10
foot side setbacks. We have no rear setback.
When I had finally arranged this meeting, I presented the plot of
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October 10, 2000
Palmetto Dunes, which all of these should have been available to the
permitting clerk when this was done, as well as a copy of the PUD
and the other restrictions, namely that the storm water and things like
that. And apparently, this was not done. And in this letter, I got told
that if I wanted a review of this to send in a check for $200 and
request a review. I sent in a check, and a little bit later, I saw nothing
-- are my 10 minutes up.*
CHAIRMAN CARTER: If you could bring it to a summary for
us, we'd certainly appreciate it.
MR. MATSON: Okay. All right. Anyway, this has not been
satisfactorily concluded. The permit still reads 10 feet for the rear
yard. This is improper. There's no credence anywhere for this data.
CHAIRMAN CARTER: Commissioner Mac'Kie.*
COMMISSIONER MAC'KIE: It sounds to me, if I'm
understanding, that there may be some confusion on your part
between -- the difference between a plot, which you have which
shows those two 2:5 foot setbacks, and the zoning code, which
defines what's a front yard and what's a side yard and what's a back
yard. Because these -- it's not unusual for comer lots to have no rear
yard, for example, and that's where the 10 feet would come in. Am I
getting this right, Bob.*
MR. MULHERE: That's correct.
COMMISSIONER MAC'KIE: It sounds like just a
misunderstanding.
MR. MATSON: May I finish my -- all right. As I pointed out
before, Palmetto Dunes is a circle. It has no comer lots other than
the two at the end. There's -- similar to this Lot 77, there's 10 other
lots that could fit this same bill as a comer lot. Seven of those are
built up. They all have rear yards of 25 feet. So this one is singled
out that, hey, we've got 111 built up homes in Palmetto Dunes, and
all of a sudden here comes in this builder, who has promised his
client something, he showed him a model home, and he told him he
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October 1 O, 2000
could fit this model home on this lot, and he could also put a pool
with a 15 foot by 50 foot lanai at the 10 foot line. And this is the
crux of the problem. It has not been satisfactorily concluded.
CHAIRMAN CARTER: Okay. Commissioner Brandt, and
then let's go to staff.
COMMISSIONER BRANDT: Mr. Matson, seems like your
contention is that Lot 77 is not a comer lot. You've stated that, that
the only two comer lots are at the entrance of the community, and
you show that on some of the material that you presented to us, and I
have a concern also about the definition of a comer lot and what
criteria it has to meet to be able to be defined as such. So, when we
hear from the staff, I would like to hear something along that line.
MR. MATSON: All right. Anyway, may I go on?
CHAIRMAN CARTER: Well, no. Let me hear from staff, and
then we can see if we can find a direction for you, sir. Bob, you want to comment on this?
MR. MULHERE: Yes. Bob Mulhere, Planning Services
Director.
We have now on several occasions, in some cases individually,
and at least in one case, collectively with Mr. Matson, staff,
including the county attorney's office, Ramiro Manalich and Marjorie
Student, Ed Perico and Johnny Gebhardt from the Building
Department, and myself from the Planning Department, and I believe
Michelle Arnold has met with Mr. Matson related to some code
issues that he raised.
We unanimously, as staff, feel that the issues were properly and
correctly -- the permits were properly and correctly issued. We
unanimously feel that this does constitute a comer lot. However, we
understand that Mr. Matson disagrees with that. And in our meeting
in the county attorney's office, we requested that Mr. Matson send in
a request for interpretation focusing specifically on the issue of the
comer lot. That request has never been received.
Page 33
October 10, 2000
The correct forum to deal with an administrative decision such
as this is through an interpretation and subsequent appeal process,
should Mr. Matson disagree with our interpretation.
COMMISSIONER MAC'KIE: I thought he said he sent in his
$200.
MR. MULHERE: He sent in a request for interpretation that
was not on the proper format. It did not raise the correct issues.
That's one of the reasons why we met with him, to try to correct that
format and to address the issues, and after that meeting, Mr. Matson
indicated, and I think I can be corroborated by all of the staff that
was in attendance, that he was going to send in the correct format,
the letter, raise the issues, and the check for $200, we would process
the interpretation in an expedited fashion and allow him the
opportunity to appeal this.
We all look very closely at these issues, and again, it's probably
not the correct forum to try the issues here, we felt unanimously that
the permits were issued properly and that this does constitute a
comer lot.
COMMISSIONER MAC'KIE: So we didn't cash his check?
MR. MULHERE: No, we did not.
MR. MATSON: No. The check was returned to me.
COMMISSIONER MAC'KIE: Just wanted to be sure on that.
MR. MATSON: Because I changed my appeal and I said that it
was the county's fault.
MR. MULHERE: I just wanted to address Commissioner
Brandt's question. There are some lots that require an interpretive
review with relationship to whether or not they constitute a comer
lot. Perhaps where you have a single street that -- where the curve is
so severe that it approaches a 90 degree turn, and so, while you don't
have two streets there, you have in effect still a comer lot. And the
purpose for the different setbacks is because -- it's in order to provide
some relief for a property owner that has, you know, two street
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October 1 O, 2000
frontages, so that they can still build something that's reasonable.
In this case, however, you do not have that circumstance. Yes,
there is a circle. However, there is a small side street that comes off
of that circle that contains a stop sign, and it doesn't matter to me
what the name of the street is, it's how it functions. And in my view,
it functions as an intersection creating a comer lot, and in my view,
there are several other comer lots in this subdivision.
The PUD clearly allows for a side yard setback for a pool to be
10 feet. So the question comes back down to whether or not this is a
comer lot, and I think again, the proper process is through an
interpretation request, which we would process and provide you with
all of our rationale, and Mr. Matson can provide his rationale, and we
can bring this issue back, if that's --
COMMISSIONER MAC'KIE: But, respectfully, I wouldn't
suggest that -- I wouldn't personally spend $200 to get an answer to
the question.
MR. MATSON: I not only spent $200, I spent 100 hours of my
time, which I told the Planning Department I would very happily
donate as community time to help them out in complex areas of
review. I am an engineer with 40 years experience, a graduate
engineer. Thirty-two of those years are with U.S. Steel Corporation
in all aspects of engineering. Eight years of them, that is, with the
State of Michigan, as a state energy engineer. Also, I have five and a
half years of active duty as an Army engineer where I participated
and worked with the severe floods in 1951 down at Missouri and the
Mississippi River. I also spent 14 months in Korea, where we put in
the infrastructure, the roads, the bridges and everything, for the
Koreans.
CHAIRMAN CARTER: Mr. Matson, I really value your
expertise and your experience. There's no question, I don't think, on
the part of the commissioners, any question on that. But there is a
process here. If you choose to spend that money and send it through
Page 35
October 10, 2000
under the proper guidelines, you may choose to do that, sir. I think
what Commissioner Mac'Kie is saying is, based on what we've heard
this morning, you may not get the answer that you're looking for.
But that is the process. We cannot decide that issue this morning. A
public petition can make a request. I think, depending on what the
Board feels this morning, that we would suggest that you go through
that process and do that, and that would be the only thing we could
do here this morning.
MR. MATSON: All right. I feel that I done that in this open
meeting where Mr. Mulhere was there. I feel that request was made.
I sent in two letters after that, and the same answer I got back was
that this is a corner lot. And the last one contained a definition that
says, in a case of through and corner lots, and goes on, depth of
required rear yard shall be measured so that the yard establishes a
strip of the minimum width required by zoning district requirements.
Okay. Zoning district requirements in a PUD is that all homes have a
rear yard.
CHAIRMAN CARTER: So that will probably be a matter of
interpretation. The only thing I can suggest to you, sir, is that you
take it back through that. Again, you may not agree with the
interpretation, but we, the Board of County Commissioners, cannot
make that decision here this morning. We can only recommend that
you follow the direction that was suggested by Mr. Mulhere to you
this morning. If you choose to do that, fine. If not, there's not
anything else that we can do this morning to my knowledge, as the
Board of County Commissioners.
MR. MATSON: I wish to point out one more thing, though.
When this survey was prepared, some 40 days later, which cannot by
any acceptable standards for not having that survey available to the
permitting clerk at the time -- at the time that that was.
Now, the surveyor could not, by the PUD, in which he used all
of his data to establish the lot, and which the builder did, he could not
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October 1 O, 2000
show anything on a survey drawing that would be 10 foot, anything
at the 10 foot line. He could not do that. The PUD prevented him
from doing that.
CHAIRMAN CARTER: Sir, this is not my area of expertise,
and I'm not going to quarrel with you at all this morning, but I
appreciate your coming and presenting your case. I think under the
Board's direction, we would suggest you take it to Mr. Mulhere,
follow that process. Once that's all put together, it may come back to
us, but this morning, there's not anything else we can do, sir, but say
thank you for the presentation and go with the direction
recommended by staff.
MR. MATSON: I would like to ask one more thing. I have
requested by the departments down there many, many times, to have
this unnecessary dirt piles removed. I have got no action whatsoever
from that. The county helped make this mess, the county has to help
me take care of it. It's not my responsibility.
CHAIRMAN CARTER: Okay. Let me take that question to
Mr. Mulhere.
MR. MULHERE: We did-- Mr. Kuck, I think, personally, as
well as others from the Engineering Department did go out and look
at the site, and it was their opinion that there was not a threat to the
drainage. We did actually have them move some of the dirt out of
what is a drainage easement. During construction, dirt remains in
place while the construction is taking place. Certainly, at the
culmination of construction, prior to issuance of a CO, all of those
issues need to be addressed. We certainly don't object to going back
out there, taking a look at it, and seeing if there are some things that
can be done in the interim.
COMMISSIONER MAC'KIE: What's the timing on when we
would reasonably expect that construction to be completed so that -- MR. MATSON: This dirt is there 90 days, yet. It's been
reported on the 10th of the month of August when we had our
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October 1 O, 2000
common meeting.
MR. MULHERE: I don't know when the construction --
frankly, I don't know when that would be completed. Obviously the
contractor doesn't want to delay that process, nor the homeowner. I
can certainly look into and inquire to the contractor when they expect
to be completed, and certainly we can go out there and take a look at
the construction site to make sure that there's no issues of safety or
drainage, again.
CHAIRMAN CARTER: Well, I think the Board would
appreciate if you would do that, if you revisit that site. MR. MULHERE: Absolutely.
CHAIRMAN CARTER: And accommodate Mr. Matson and
the builder in any way that we can to see if we can't get a workable
solution to this so they can live as neighbors while we're resolving
this.
MR. MATSON: I would request that the management staff
come out and redo that. I have requested that before, and I request it
again.
CHAIRMAN CARTER: Well, what we're saying this morning,
sir, is your request has been heard by this Board, and we're giving
direction to staff to do that. Thank you very much.
MR. MATSON: Thank you.
Item #7D
REQUEST BY BETTY M. PAGANI AND KATHY BRUCE FOR
PUBLIC PETITION TO DISCUSS THE INTERSECTION OF
MYRTLE LANE AND U.S. 41 - STAFF TO RELAY CONCERNS
OF RESIDENTS TO DOT AND REPORT IqACK
CHAIRMAN CARTER: Move to public petition No. D as in
David, request by Betty M. Pagani and Kathy Bruce for public
Page 38
October 10, 2000
petition to discuss the intersection of Myrtle Lane and U.S. 41. MS. SMITH: Good morning, Commissioner.
CHAIRMAN CARTER: I probably murdered the name, but I
apologize.
MS. SMITH: It's Pagani.
CHAIRMAN CARTER: Pagani. Thank you. My Italian's a
little bad.
MS. SMITH: My name's Tracy Smith. I reside at 5248 Myrtle
Lane. I'm here today to speak to you on behalf of the residents of
Myrtle Lane, some of which are here today. I think they want to
stand up to show their --
COMMISSIONER MAC'KIE: I think that has to be everybody
on the street.
MS. SMITH: It's not everybody. Some of them are still at
work. So--
COMMISSIONER MAC'KIE: Thanks for being here.
MS. SMITH: These are the ones who took the time to take off
from work. The problem we wish to present today arises from the
Florida State Department of Transportation installing a traffic light at
the intersection of U.S. 41 East and Broward Street. Broward ends on
U.S. 41 East, just four car lengths from where Myrtle Lane intersects
with U.S. 41 East.
Myrtle Lane is a dead end street, and so this is the only entrance
to U.S. 41 available to residents of Myrtle Lane. At present, there
are signs that state, do not block intersection, on both sides of U.S.
41. However, cars in the left lane going east cannot see cars coming
from Myrtle Lane, and of course see no reason to stop.
Since the light has been installed, the cars on U.S. 41 either
slow down way back on U.S. 41 when the light is red and speed up if
the light is green. During season, this makes trying to cross U.S. 41
to go west an accident waiting to happen.
We have obtained a copy of a map from the Florida State
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October 1 O, 2000
Department of Transportation indicating their intention to six lane
U.S. 41 from Rattlesnake Hammock Road to County Road 951, and
eliminating the crossover that is now utilized by the residents of
Myrtle Lane. When this happens, the residents of Myrtle Lane will
be obligated to cross three lanes of traffic, and within the space of
four car lengths, be able to make a U-tum in order to go west into
town. This will make a death trap even more dangerous.
Our request is that the county buy the property at the end of
Myrtle Lane. The property is empty and is for sale by Clyde C.
Quimby, Realtor. A road could be built on this property, making
Myrtle Lane turn right, instead of left as it now does, and ending at
the traffic light across from Broward Street. This project has been
deemed feasible by Mr. Don DeBerry, an engineer for the Florida
Department of Transportation, and Mr. Dunnick of our county
government.
Thank you for your time and, hopefully, approval of this
project. We are sure it will prevent many accidents in the near future.
COMMISSIONER MAC'KIE: Sounds to me like something we
ought to have staff look into and see if it's possible to do.
COMMISSIONER BERRY: I think that's a task for Mr. Feder.
MR. OLLIFF: We can. Keep in mind it is an FDOT project,
and we can at least relay the concerns that the residents have to the
FDOT people, and I'm sure of all people, Norman certainly knows
who we need to talk to.
COMMISSIONER MAC'KIE: Well, and if at the same time, if
we can -- if the state can't solve our problem and can solve it, then
I'm interested in hearing that solution, if it requires some -- spending
money but it's a safety concern, then we have to know.
MR. OLLIFF: We'll provide a response back to the Board and
to the residents.
COMMISSIONER MAC'KIE: Thank you.
CHAIRMAN CARTER: Okay. Thank you. I think staff has
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October 1 O, 2000
sufficient direction on that.
COMMISSIONER MAC'KIE:
(Applause.)
You guys go back to work.
Item #8Al
PRESENTATION TO THE BOARD OF COUNTY
COMMISSIONERS ON AN AWARD OF MERIT RECEIVED BY
THE COMMUNITY DEVELOPMENT AND ENVIRONMENTAL
SERVICES DIVISION BY THE FLORIDA CHAPTER OF THE
AMERICAN PLANNING ASSOCIATION IN RECOGNITION OF
THE BAYSHORE AND GATEWAY TRIANGLE
RF, DF, VF, I,OPMFiNT PI,AN- AWARD ACCEPTED
CHAIRMAN CARTER: All right. That takes us to the county
manager's report, (a), community development and environmental
services. Mr. Olliff?
MR. LITSINGER: Good morning. Stan Litsinger,
Comprehensive Planning Manager. I would like to take a few
minutes to give us all a collective pat on the back for an award that
was technically presented to the Collier County Community
Development and Environmental Services Division by the Florida
Chapter of the American Planning Association at their annual
convention in September.
However, I think it's noteworthy that this is an action that
resulted from a grass roots effort which began way back in 1997, and
I believe Commissioners Berry and Mac'Kie were here at that time.
It began with a grass roots effort by a group called the Bayshore Area
Redevelopment Team to try to discover opportunities for
improvement to the Bayshore community.
As a result of that, we had a number of public meetings of
which Ms. Pam Mac'Kie attended those meetings in which we collect
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October 10, 2000
information at the grass roots level for opportunities to improve in
this area, and as a result, in 1998, Landers-Atkins was appointed to
work with county staff, specifically Comprehensive Planning staff, to
produce a redevelopment plan for both the Bayshore and Gateway
triangle.
And as you all know, as a result of that plan, which was adopted
on November 9th of 1999, the effort has grown to the creation of the
Collier County Community Redevelopment Agency, and we're
currently in the efforts for the redevelopment and improvement of
that area, and also, we have added the Immokalee community to this
redevelopment effort.
I would like to also take this time to point out a few people by --
specifically by name that should be recognized, and that would be
Mr. Bill Neil (phonetic) of the Bayshore Area Redevelopment Team,
I think all the Board has supported this effort, and in particular Pam
Mac'Kie was always present at our public meetings and gave her
support in these efforts.
I think I should also point out Howard Landers and Joe Ehart
(phonetic) of the Landers Atkins Planning Group, which worked very
hard and diligently to provide what we feel is a workable plan with
many alternatives for the improvements in this community. I think I
need to recognize Barbara Cacchione, who is no longer with us but
was instrumental in the beginnings of this effort as the
Comprehensive Planning Manager, and the entire Comprehensive
Planning Team, including, of course, Ms. Debrah Preston.
Essentially, we received a plaque, which I would like to show
the Board of County Commissioners. And as my final comments, I
would ask the Board to accept this on behalf of not only the
development services division, but the entire community from the
grass roots, the staff and the Board of County Commissioners which
demonstrates the type of accomplishment we can do as a team.
CHAIRMAN CARTER: Stan, we're certainly proud of all your
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October 10, 2000
efforts and what you have done, and Commissioner Mac'Kie, thank
you for your efforts in this and all the other commissioners. What a
wonderful award to Collier County. It shows that we do a lot of
things right.
COMMISSIONER MAC'KIE: Can I just say, too, I want to
say, we've got a great plan. Now we've got to implement it. There's
work yet to be done.
CHAIRMAN CARTER: All right. Thank you very much, Stan.
Item #8A2
BOARD OF COUNTY COMMISSIONERS TO BE A PRIMARY
SPONSOR FOR THE PLANNING SYMPOSIUM ON SMART
GROWTH- APPROVED
That moves us to Item 8(a)(2), recommendation that the Board
of County Commissioners be a primary sponsor for the Planning
Symposium on Smart Growth.
MS. PRESTON: Good morning, Commissioners. For the
record, Debrah Preston with your comprehensive planning section.
This item is a request that the Board consider being a primary
sponsor at a planning symposium on smart growth, to be held
November 9th at the Elks Club here in Naples. The local chapter of
the Florida American Planning Association has organized this event,
and they're looking for additional sponsors to help defray some of the
cost.
This workshop will bring in experts from throughout the State of
Florida to discuss issues, technologies, and innovative techniques
that have been helpful in their areas, such as Palm Beach County,
Martin County, and looking at ABACO, their new development.
And we'd like to invite you all to attend. Bob's passed out the
brochure, and it's of course open to the general public, as well.
Page 43
October 10, 2000
COMMISSIONER MAC'KIE: Motion to approve.
COMMISSIONER BERRY: Second it.
CHAIRMAN CARTER: All in favor signify by saying aye.
Motion carries.
MS. PRESTON: And your motion also includes the budget
amendment?
COMMISSIONER MAC'KIE: Absolutely.
CHAIRMAN CARTER: Oh, yes, ma'am. We wouldn't -- will
COMMISSIONER MAC'KIE: Can I ask if there's any way to
advertise this on Channel 54 and maybe even tape some of the
proceedings and show it on Channel 54 because it's so relevant to our
community right now.
MS. PRESTON: Jean Merritt has attended our organizational
meeting, and she will help promote it, and we're going to ask her to
tape it for us. Thank you.
Item #8D 1
PROFESSIONAL SERVICES CONTRACT WITH MS. MAGGIE
MCCARTY FOR THE OPERATION OF THE COLLIER COUNTY
FIIJM COMMISSION- APPROVFiD
CHAIRMAN CARTER: Okay. That moves us to Item B,
Transportation Services, Public Utilities, and Public Services, (d)(1).
COMMISSIONER MAC'KIE: if I could just jump in, this is the
item that we've seen before. I'd just make a motion to approve.
COMMISSIONER BERRY: I will second it with the idea that
this has been an area that is very successful. This is a good type of
industry for Collier County, and this is the kind we'd like to promote,
and I am extremely supportive with that second to the motion.
COMMISSIONER BRANDT: Mr. Chairman, I have a
Page 44
October 10, 2000
question. There has been a question raised about whether this should
be with the TDC or whether it should be with the County
Commission, and I'd like some discussion on that from the staff.
MR. OCHS: Certainly. Good morning, Commissioners. For the
record, Leo Ochs, Public Services Administrator.
Commissioner Brandt, the Board may recall back in May of this
year, during its review of the Tourist Development Council's fiscal
2001 program budget recommendations, the Board had made a
decision at that time to remove the film commission from the
purview of the Collier County Tourism Alliance and to establish the
commission as a separate entity under the auspices of the Board.
As a result of that decision, staff had taken some short-term
actions to maintain the operation of the commission through the
balance of fiscal year 2000, with the intent of developing a more
formalized arrangement, which comes to you today in the form of
this contract proposal.
COMMISSIONER BRANDT: Question then with regard to the
TDC and why the TDC is opposed to this. Do you have any feel for
that?
MR. OCHS: No, sir, I don't.
COMMISSIONER BERRY: I think what -- excuse me. Mr.
Chairman?
CHAIRMAN CARTER: Yes. Commissioner Berry?
COMMISSIONER BERRY: I think what Commissioner Brandt
is alluding to is, I know that I got a letter from a Mr. Durkin
(phonetic), who is involved with the TDC, and he has raised concern
in this letter regarding the TDC, and it was my understanding, I
thought we took over the funding or made the arrangement or helped
make the arrangements, and that it was not under the TDC anymore.
COMMISSIONER MAC'KIE: We have already made that
decision. That's what Leo was referring us back to.
COMMISSIONER BERRY: That's exactly what my thoughts
Page 45
October 10, 2000
were, and I was very surprised when I got this letter, and I don't
know whether there's been some miscommunication to the members
of the TDC or whatever the action, but they need to be enlightened.
COMMISSIONER BRANDT: Mr. Chairman, that's the reason I
raised the question because I want some clarity here.
MR. OLLIFF: Mr. Chairman, I believe they reviewed and
submitted to you a budgeted amount of money for this particular
proposal. I think their recommendation was that it be handled in a
different way. However, I think, based on that recommendation, the
Board still has the purview to be able to spend those funds any way
that it chooses, and I think what it was trying to do was to provide
some consistency over a period of time to allow us an opportunity to
actually look at the operation under a county auspices and see how
that functions. And the period of time we've had has only been a
couple of months, so I think our recommendation is that we carry it
for the balance of the fiscal year '01.
CHAIRMAN CARTER: Right. Because the film commission
has been bounced around this county from pillar to post, if I can use
that expression, and we just really haven't found a home for it or an
opportunity to set it into place, evaluate it, and determine what it's
doing or not doing and how we should fund it in the future.
COMMISSIONER MAC'KIE: And despite that, it's had
incredible successes.
CHAIRMAN CARTER: Right. It has. So I think it's a viable
part of our community, and I agree with the county manager. I think
we ought to keep it under our auspices. We want to evaluate it and
take it forward. I'm a little puzzled by the TDC's letter myself, but --
MR. OCHS: Mr. Chairman, if I may, the contract itself does set
forth some formal reporting requirements, including quarterly reports
to the TDC, as well as an annual report to the full Board of County
Commissioners.
COMMISSIONER MAC'KIE: And if I can just add --
Page 46
October 10, 2000
Commissioner Brandt, what I would say in sort of a blunt answer to
the question is, oftentimes, advisory boards don't like it when we
don't take their advice, and this is one of those times where they
recommended something different. We're making a decision -- we
have already made a decision to the contrary, and we would like for
the film commission to continue making these quarterly reports, but
their capacity is advisory only.
COMMISSIONER BRANDT: And I understand that, and that's
the reason I wanted to raise it because I think this Commission has
the responsibility to the community and has the obligation to listen to
advisory boards and their considerations that come forward, but this
Commission has the final responsibility, and I just wanted to make
sure that that discussion came out.
CHAIRMAN CARTER: You're absolutely correct in that. I
might just suggest, Leo, that perhaps if we had a six-month report
from the film commission back to the Board, that that be part of the
contract, but it might be a good idea for us to get a six-month report
just to let us know how we're doing and where we're going with it.
MR. OCHS: Absolutely.
CHAIRMAN CARTER: All right. We have a motion, we have
a second. All in favor signify by saying aye.
Opposed by the same sign.
(No response)
CHAIRMAN CARTER: Motion carries. Thank you.
MR. OCHS: Thank you.
Item #9A
CLOSED ATTORNEY-CLIENT SESSION FOR DISCUSSION OF
SETTLEMENT NEGOTIATIONS AND/OR STRATEGY
RELATED TO LITIGATION EXPENDITURES OF THE
PENDING LITIGATION CASE OF POPP V. COLLIER COUNTY,
Page 47
October 10, 2000
CASE NO. 99-3286-CA- TO BE HEARD AT 2:00 P.M. OR AT
F. ND OF RF, GI II.AR MF.F, TING
CHAIRMAN CARTER: That moves us to Item 9(a), and I
think we can dispose of that before we take a short break, if our
reporter is okay.
COMMISSIONER MAC'KIE: Could I -- this is the -- isn't that
the item that we're going to take into the shade and discuss the
lawsuit?
CHAIRMAN CARTER: Yeah.
COMMISSIONER MAC'KIE: I just wanted to, before we do
that, say it appears to me that there was some confusion or some
mistakes made in the Naples Daily News about what was the nature
of the lawsuit that we're discussing today because there's -- if I read
the article right, there was some -- and this is really important to
clarify because we are considering having a discussion outside of the
sunshine. But the lawsuit that is the subject of today's discussion has
nothing at all to do with the beach renourishment project, with the
rocks on the beach. It has nothing to do with that. That's not
something that I'm personally going to support having discussions
out of the sunshine. But this is not that lawsuit, so please, let's make
that as clear as we can if we do have this discussion in the shade.
MR. WEIGEL: Mr. Chairman, I might note that we have
provided notice for this to be heard either at the end of the regular
Board meeting agenda or at 2 o'clock, whichever occurs earlier. So
we'd be best served if we just continue with the agenda as you would,
then at the conclusion of the regular agenda, pick this one up.
CHAIRMAN CARTER: Right. This is one lawsuit, and my
opinion on this as a Commissioner is, is that we have rights under the
sunshine laws to listen to suits against the county so that we can
develop a strategy and how to deal with those suits. It all becomes
public record once conclusions are reached on this. We are not
Page 48
October 10, 2000
hiding anything. But we have an obligation to the constituents that
we represent, to the taxpayers of Collier County, to develop
strategies so that we can effectively deal with these lawsuits, and for
the least amount of expenditure on the part of the taxpayer. And I,
for one, believe it's time that all public officials, and it's spelled out
under the sunshine laws, exercise those rights. The City Council of
Naples recently did it, and we need to exercise our rights for the
constituents that we represent. And we are in no way in violation of
the sunshine laws. We are not taking it into impact fees. We're not
taking it into road construction. We can't discuss those issues. They
have to be item specific, and they have to be announced ahead of
time, and that's why we go into executive session on those. And they
are limited in what we can do. But I, for one, believe it is our
responsibility to do this, and that's why I support it and I raised this
issue because it's like if you went to negotiate with someone and
says, okay, I have to tell you what my strategies are going to be, but
you don't have to tell me yours. Now what kind of a negotiation
would that be? You know everything about me, but I know nothing
about you. It just doesn't work, folks.
So that's why I'm an advocate of this and why I support that we
go into executive session on this case. And it will be brought case by
case to the Board of County Commissioners. This is not a blanket
thing that we do.
COMMISSIONER MAC'KIE: And if I understand it, we're
going to do that at the end of our agenda, so we'll --
CHAIRMAN CARTER: At the end of our session today, we
will go to executive session for this particular case.
COMMISSIONER BERRY: Mr. Chairman, I think -- it's 10:30,
and I think we should give our court reporter a little break before her
fingers fall off.
CHAIRMAN CARTER: Yes. Okay. That's a good idea. We're
going to take 15 for a break, and then we'll be back here at 10:45.
Page 49
October 10, 2000
(A recess was taken.)
CHAIRMAN CARTER: We're back in session. Are we alive?
Somebody want to push the button? I'm not sure we're alive. There.
We're alive and well in Radio City.
Item #10A & H
COMMISSIONER CARTER TO REPRESENT COLLIER
COUNTY ON THE FLORIDA ASSOCIATION OF COUNTIES
BOARD OF DIRECTORS. NEW COMMISSIONERS
ENCOURAGED TO ATTEND FACC AND BCC HAS
DETFRMINF, D THAT IT IS A VAI.ID Pl llqI,lC PI IRPOSF,
Okay. Board of County Commissioners. Item A.
COMMISSIONER BERRY: I'd like to suggest that
Commissioner Carter represent the Board of County Commissioners
at the Florida Association of Counties meeting. I have served in that
capacity, and since I'm a short termer, I would -- and Mr. Carter has
attended those meetings and represented in different areas very well,
I would like to recommend and suggest that he continue in that
venue, as well as when the new commissioners come on the scene,
that they get involved from the standpoint that I think it's important
for commissioners to get the big picture of how Collier County fits
in, in relationship to all the counties in the State of Florida, and it's
very enlightening to hear a different perspective because I think
when you stay here all the time, you become very narrow in what
you think is happening, and you get the idea that what's happening in
Collier County is happening all over the State of Florida, and that
ain't true, and I think it's very important that you learn how we fit
into the big picture in the State of Florida, and it gives you a little bit
broader perspective and broadens your horizons.
CHAIRMAN CARTER: Yes, indeed. I couldn't agree more
Page 50
October 10, 2000
with that because it's a real eye opener when you're a medium-sized
county dealing with the big counties, and then there are a lot of very
smaller, poorer counties. We just really get caught in the middle and
often get the short end of the stick when it comes to state funding in a
lot of respects.
So in the fall, we set the legislative agenda, and that's why it's so
important for commissioners to begin to interact at the state level to
figure out how we can influence the legislatures so that we can try to
get as much funding as we can for Collier County. Very
enlightening process, and Commissioner Berry and I have always
attended those meetings and enjoyed it a great deal.
Ms. Filson, do you have a comment on how FAC drives us on
this process as to --
MS. FILSON: I did call the FAC, and I talked to Mary Kay
Caruso, and they indicated that they would like a new person
nominated after the new Board took office. I'll be happy to write
them a letter with the Board's -- if it's voted on today with that
decision.
COMMISSIONER BERRY: Mr. Chairman, the reason I would
suggest that Commissioner Carter represent the Board, number one,
I think that the person that sits -- actually, this will be on the Board
of Directors, and I think that person should have some knowledge of
this particular group. Commissioner Carter has that knowledge. I
would suggest, as I said before, that the new commissioners avail
themselves to attend the meetings of the Florida Association of
Counties and learn the ropes. And if at some point when
Commissioner Carter says, thank you very much, I've done this, it's
time for somebody else to step in there, they will have that
experience of knowing how the association works and be able to step
in and take a leadership role for Collier County. But I think with
Commissioner Carter's experience, I think that he's the logical person
to do this now. I know we have a companion item, Item H. I don't
Page 51
October 1 O, 2000
know if you want to hear that now --
CHAIRMAN CARTER: I'm fine with that.
COMMISSIONER CARTER: -- but I think it's important that
we encourage, as soon as the election takes place in November, that
we at least offer the opportunity to the new commissioners to attend
the meetings and find out what's going on at the state level. I just --
they're going to have a lot of things thrown at them when they first
come on board. Paperwork overwhelminglY at first, but I think it's
important that they go up and they learn, it's just like a big seminar in
government, and learn what's going on from the state perspective,
and then they can come back and then sort it all out and kind of apply
some of the things they heard in regard to our county issues.
So, I, for one, would certainly, and I will -- intend to support
that we offer them and go so far as to even pay their expenses to go
up and stay for that particular meeting. I think it's important for
government that you get this broader perspective.
COMMISSIONER BRANDT: Is that a motion? If it is, I'll
second it.
COMMISSIONER BERRY: That is. That is.
CHAIRMAN CARTER: Any other discussion? All in favor
signify by saying aye.
Motion carries 4/0. I think that clarifies two things. One, that
we will write to FAC advising them that I should represent Collier
County. The second thing is that we have publicly stated that
commissioner elect before they're sworn for the upcoming meeting, if
they come to us and request to go, that we now will accommodate
them.
COMMISSIONER BERRY: Absolutely.
COMMISSIONER MAC'KIE: The date of the meeting is?
COMMISSIONER BERRY: It's in November.
CHAIRMAN CARTER: It's November. It starts -- let's see.
We meet the 14th, 15 -- well, yeah. It's November 16 and 17. That's
Page 52
October 10, 2000
a Thursday and Friday.
COMMISSIONER BERRY: Right. But you need to go up on
Wednesday.
CHAIRMAN CARTER: Yeah. You need to go up on
Wednesday.
COMMISSIONER MAC'KIE: So we need to specifically make
a finding of public purpose because they will not be technically
county commissioners until the 21st, and that's --
COMMISSIONER BERRY: Once they're elected, are they not
CHAIRMAN CARTER: They're under the sunshine laws,
they're under everything else, I think.
COMMISSIONER BERRY: Exactly.
COMMISSIONER MAC'KIE: They are commissioners, but
they will officially take office on November 21st.
COMMISSIONER BERRY: Okay.
COMMISSIONER MAC'KIE: So, both of those things were
taken care of in that motion?
CHAIRMAN CARTER: Uh-huh.
COMMISSIONER MAC'KIE: Great.
CHAIRMAN CARTER: We're all set? I called the question?
COMMISSIONER BERRY: Yes, you did.
CHAIRMAN CARTER: Okay. And we all voted on it and
we're all set. Okay. Very good. We will -- we've taken care of
Items A and H.
COMMISSIONER MAC'KIE: The court reporter's going to
switch.
CHAIRMAN CARTER: Okay. At 11.
COMMISSIONER MAC'KIE: She just asked us to do it now.
CHAIRMAN CARTER: Oh, okay. We're going to have a
switch.
(A recess was taken.)
Page 53
October 1 O, 2000
Item # 1 OB
RESOLUTION 2000-355 APPOINTING MARIBEL HERRERA TO
THE WORKFORCE DEVELOPMENT BOARD, REGION 24 -
ADOPTED
CHAIRMAN CARTER: Let's go to Item 10(b), appointment of
member to the Workshop Development Board.
COMMISSIONER MAC'KIE: One and one; I'll move the
applicant.
COMMISSIONER BRANDT: Second.
CHAIRMAN CARTER: All in favor, signify by saying aye.
Motion carries.
Item #10C
RESOLUTION 2000-356 REAPPOINTING WILLIAM J. TYSON,
ALEX DUSEK, AND APPOINTING WILLIAM J. DEMPSEY -
ADOPTED
We go to 10(c), appointment of members to the Historical
Archaeological Preservation Board.
COMMISSIONER MAC'KIE: There are three applicants for
three positions. I move their approval.
COMMISSIONER BERRY: Second it.
CHAIRMAN CARTER: It's been first by Commissioner
Mac'Kie, second by Commissioner Berry. All in favor, signify by
saying aye.
Motion carries four oh.
Item # 1 OD
Page 54
October 10, 2000
RESOLUTION 2000-357 REAPPOINTING PATRICIA M.
I:IAISI,EY- ADOPTED
We are now to appointment of a member to the Public Vehicle
Advisory Committee.
COMMISSIONER MAC'KIE: There's one applicant for one
position and I move his approval -- her approval.
COMMISSIONER BRANDT: Second.
CHAIRMAN CARTER: A motion by Commissioner Mac'Kie,
second by Commissioner Brandt. All in favor, signify by saying aye.
Motion carries four zero.
Item #10E
RESOLUTION 2000-358 APPOINTING PETER H.
VANARSDALE AND MIRIAM S. WOLOK TO THE SELECT
COMMITTEE FOR COMMUNITY CHARACTER AND
APPEARANCE- ADOPTED
We are now to the appointment of members to the Select
Committee for the Community Character and Appearance.
COMMISSIONER MAC'KIE: I move that we approve the
committee's recommendations of Peter VanArsdale and Miriam
Wolok.
COMMISSIONER BERRY: Second that.
CHAIRMAN CARTER: A motion by Commissioner Mac'Kie,
second by Commissioner Berry for the appointments to the Select
Committee for Community Character and Appearance. All in favor, signify by saying aye.
Opposed by the same sign. The motion carries four oh.
Page 55
October 10, 2000
Item #1 OF
RESOLUTION 2000-359 REAPPOINTING ROBERT D. LAIRD
AND APPOINTING HEATHER ROCKCASTLE AND DR.
ROBERT J. ZEHR- ADOPTED. COUNTY ATTORNEY TO
AMFJND ORDINANCFJ 80-80
We are to the appointment to a person for the Emergency
Medical Services Advisory Council.
COMMISSIONER MAC'KIE: I move that we agree with the
committee's recommendation that we appoint two members and add
one additional member to represent Cleveland Clinic and, therefore, I
nominate Mr. Laird and Miss Rockcastle and Dr. Zehr.
COMMISSIONER BERRY: But we also have to change -- I
believe we have to.
MS. FILSON: Yeah. Robert Laird has served more than two
terms so you'll need to waive Section 7(b)(1) of Ordinance 86-41.
COMMISSIONER MAC'KIE: My motion incorporates that
waiver.
COMMISSIONER BERRY: Second it.
CHAIRMAN CARTER: Motion made by Commissioner
Mac'Kie, second by Commissioner Berry. All in favor, signify by
saying aye.
Opposed by the same sign.
Motion carries four zero.
Item #10G
ITEMS #12C7-11 FROM SEPTEMBER 12 MEETING AND
ITEMS #12C3-8 FROM SEPTEMBER 26 MEETING
REGARDING ALTERNATIVE ROAD IMPACT FEE
CALCULATIONS FOR GOLF COURSES TO BE
Page 56
October 10, 2000
RECONSIDERED ON NOVEMBER 14; 2000
It takes us to Item 10(g), reconsideration of previously discussed
items referring to the alternative road impact fee calculations for golf
courses, Commissioner Mac'Kie, myself and Commissioner Brandt.
COMMISSIONER MAC'KIE: I move that we reconsider Items
12(c)(7), 12(c)(8), 12(c)(9), 12(c)(10), 12(c)(11)on the September
12th, 2000 agenda and on the September 26th, 2000 agenda, that we
reconsider Items 12(c)(3), 12(c)(4), 12(c)(5), 12(c)(6), 12(c)(7)and
12(c)(8).
COMMISSIONER BRANDT: It's not on the agenda?
CHAIRMAN CARTER: Do I hear a second?
COMMISSIONER BRANDT: Yes, second.
CHAIRMAN CARTER: Discussion by the board.
COMMISSIONER MAC'KIE: He's got speakers.
CHAIRMAN CARTER: Mr. Olliff, we've got speakers.
MR. OLLIFF: You do, sir. You have two. The first is Robin
Doyle. Following Mr. Doyle will be Rich McCormick.
COMMISSIONER MAC'KIE: Who was the second speaker?
MR. OLLIFF: Rich McCormick.
COMMISSIONER MAC'KIE: Thank you.
MR. DOYLE: Good morning, Mr. Chairman and members of the
board. I'm Robin Doyle. My office is 4501 North Tamiami Trail.
I am speaking today on behalf of all of the golf course owners
who are affected by this agenda item with the exception of Naples
Lakes Country Club.
I want to make several comments about the process you're being
asked to embark upon here and what brought us here.
Where we begin is with a fundamentally flawed impact fee
ordinance, an ordinance that is not fair. If it were not fundamentally
flawed, there would not have been so many alternate fee calculation
of petitions filed.
Page 57
October 10, 2000
If it were not fundamentally flawed, the board would not have had
to change the ordinance earlier this year to change the manner of
calculating the impact fees.
Now, the ordinance itself actually requires this board to conduct a
review of the ordinance at least every three years to determine if
there are any problems with it, and to the best that we can determine,
that's not been done. It wasn't pointed out in any of the audits that
were done that that should have been done, and despite that, the golf
course owners have tried to work with the county over a period of
time in an attempt to do what is fair.
Simply attacking the ordinance as being unfavor would not have
been fair, quite frankly, because there are impacts caused by golf
courses. On the other hand, charging the full amount as shown by
the ordinance is also not fair.
So, this board, after an extensive hearing, decided to consider
certain of the alternate fees petitions, and that decision we thought
was rather refreshing. We live in a society that is often criticized for
being too litigious. We're too quick to rush to the courthouse to solve
our problems, and we thought that what you were doing in passing
the earlier resolutions was a step in the right direction. You're now
being asked to step back from that.
The position that has been taken by the Clerk and the County
Attorney here seems to indicate that the only option is to collect the
full fee as determined by the schedule in the ordinance, but I think
your current ordinance recognizes that that's inherently unfair.
We would suggest to you that what we need to do is something
that is fair for county government, for the taxpayers and for the
property owners also. And, of course, all of you know that this is not
a tax. This is an impact fee and you are required by law to charge an
impact fee that has a reasonable basis, a reasonable connection to the
actual impact.
If you force this matter into litigation at this time, I think you --
Page 58
October 10, 2000
and take -- and the county takes the position that the only option is to
pay the full amount that's in Schedule A of the ordinance, then you
force the property owners, the golf course owners, to take the
opposite position that this is an inherently flawed ordinance, that
there's -- it is not fair and that they will, therefore, have to attack that
ordinance.
The result of that can be that the Clerk could be writing some
rather large refund checks and that the board would be unable to
collect the balance due as shown in the Clerk's audit.
We are disappointed at the recommendation that you launch into
litigation at this time because we think that the ultimate outcome of
that will not be necessarily attempting to find a fair solution, that a
fair solution is essentially undermined, so we're asking you today to
reconsider that course or consider against that course of action and
instead consider placing this on the fast track with staff and the golf
course owners in an attempt to find a resolution to this matter other
than litigation.
It's my understanding that the Clerk has indicated that it's possible
that there are some solutions other than charging the full amount as
shown in Schedule A of the original ordinance.
So, we're asking you today not to jump into litigation when we
think that you do not have to, but instead instruct your staff to
attempt to work this matter out in a way that would be fair to the
taxpayers, would be fair to county government and would be fair to
the property owners involved also.
COMMISSIONER MAC'KIE: May I ask a question of Mr.
Doyle? Okay. I hope you know how much I respect your legal
abilities, and I think they've made an excellent selection in choosing
you as their attorney, but I would like to hear from you if you have a
legal argument in support of this board's ability to make the decisions
that were previously made.
I -- I wanted to -- I've made these motions, I went through these
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October 1 O, 2000
hearings, I made recommendations to the board and made motions
based on what I thought were the equities of the case.
Had I been a judge, I would have been overruled at this point by
the Appellate Court because -- I see you, Dwight-- because I don't
have the authority to make the decision to look at the equities.
Do you have a legal argument counter to that of our attorney and
the Clerk that we have that legal authority?
MR. DOYLE: Well, first, I think you know that what you have to
do in assessing impact fees is that you have to be fair, that the fee has
to have a reasonable connection to the impact that is caused by the
deVeloper. And what we're suggesting to you is that as it presently
stands, it's unfair.
Now, the answer to your question is I think based on this all or
nothing approach, my understanding -- and the Clerk is here and he
might be able to address this -- my understanding is that we may not
be faced with an all or nothing approach, that there might be a way
around this and we're suggesting that this should be explored before
you launch into litigation.
Did I accurately state that, Mr. Clerk?
MR. BROCK: I agree.
CHAIRMAN CARTER: Mr. Clerk, for the record?
MR. BROCK: My name is Dwight Brock. I'm the Clerk of the
Circuit Court.
The issue in which I have a problem with the legalities, as it
relates to the ordinance, obviously in adopting an impact fee
ordinance, it has to be an ordinance which is fair in terms of
assessing the impact upon new development.
This board, I presume, or boards which preceded this board has
made that determination in the adoption of an ordinance. In the
adoption of that ordinance, those equities took place. If not on its
face, the ordinance is unconstitutional and should not be applied.
I am not of the opinion that that is the scenario. I am of the
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opinion that the ordinance is a valid ordinance. It has a provision
which sets forth the impact to be applied unless or until the developer
comes forth and presents an alternative in conformance with the
scheme set forth in the ordinance.
The problem that I have is real simple and real narrow. That
ordinance provides that an alternative impact fee may be applied for
prior to receipt of a building permit.
The issue that arose in your community development department
was the definition of building permit. The ordinance defines building
permit, and the way I read it, very succinctly, and as it is applied to
golf courses, it takes place at the site development plan approval.
But assuming, give everyone the benefit of the doubt, that it
means the vertical building permit, as defined in the land
development code, there are numerous of these particular golf
courses which did not apply for an alternate impact fee prior to
receipt of a building permit for vertical development as defined in the
land development code.
Therein lies my problem with some of the action that has been
taken by the board. Obviously, the developers may disagree. You
know, the law is not an exact science. It is an interpretive process.
And all I am saying to the board is that my suggestion to you is that
we get that defined before we proceed.
As it relates to alternative courses of actions, on September I think
it was the 1 lth or 16th, in which Mr. Varnadoe came forth in
representing his client. He came forth and presented to the board
what he considered to be the total acreage of the golf course as
should be considered.
The ordinance does not define total acreage, and that's left up to a
definition of the legislative body.
If the board defines total acreage to be something and applies it
uniformly across the board to all affected parties, I did not know,
cannot perceive at this particular point in time how I could have a
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problem from a legal perspective. I'm simply looking at it from a
legal perspective.
I'm not in the role of making the determination of what is a fair
and equitable impact fee ordinance. That rests in the domain of the
body politic called the Board of County Commissioners. That has
been done.
When you define ordinance -- define total acreage, however you
may define it, that can be applied across the board.
I'm not going to speak for myself-- for David's office, but I will
speak for myself, and if I'm not mistaken, I'll let him answer for
them, but I think we are in agreement that that is a definition, total
acreage, that rests within the discretion of this board. And that is
certainly something which can be considered as long as all parties are
willing to sit down across the table and discuss it, the County
Attorney's office, the Clerk's office and the developers.
Bring it back to the board for the board's consideration, if that is
the approach this board wishes to take. That is a discretionary
decision that you as the body politic must make. Does that answer your question, Robin?
MR. DOYLE: So, in responding again, Miss Mac'Kie, to your
question, I disagree with Mr. Brock when he says the -- the
alternative calculations have been waived and we can get into
arguments but you're not being asked to sit as a court here today, and
so I don't think that's productive for us.
And I don't know if this definition that Mr. Brock is talking about
would solve the problem, but it might. And our suggestion is that
that should be explored before the county launches into litigation of
this.
COMMISSIONER MAC'KIE: Well, my thought would be that
we go ahead and pass a motion to reconsider and then between now
-- I mean, the merits of the reconsideration would be discussed at our
next meeting in two weeks if there is a -- a solution that is both fair
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October 10, 2000
and legal, then I think everybody is interested in knowing what that
is.
CHAIRMAN CARTER: First, let me get Mr. Weigel to comment
and then Commissioner Brandt.
MR. WEIGEL: If that order is okay with Mr. Brandt.
COMMISSIONER BRANDT: Absolutely.
MR. WEIGEL: Thank you.
A couple of things, and that is I believe that if the board were to
go forward and approve a reconsideration today, under the
reconsideration ordinance it talks about the matter coming back at the
second regular meeting following the vote that's taken today, which
would put it at a minimum of four weeks from now.
I believe also and I think my recommendation is in the context of
what we're attempting to achieve here, which is kind of a big picture
kind of solution, is that the board exercise its procedural prerogative
and, in fact, if it does reconsider today approval reconsideration, that
it continue the item indefinitely.
And as indicated in the agenda insert that I created, the thought is,
of course, yes, for the Clerk, for the County Attorney and the
property owners and their representatives to meet and to flush out to
the greatest degree a reduction of issues and certainly common
understandings before a -- we'll call it not relatively nonadversarial
lawsuit seeking clarification from the Court is sought, the idea to be
that we're all looking for, certainly, some common solution and also
to know what the prerogatives are that the board has under the law.
We may not like the law but it is the law. And, furthermore,
although the board and Dwight and I absolutely agree that it would
appear that the determination of acreage as used to determine the
ordinance is the prerogative, the legislative interpretation of the
board.
The fact is though that we do have a couple of questions related to
that we would still have to look at. Life isn't quite as simple as we
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hoped because the fact is we're far along in the procedural aspects of
the ordinance and so those -- those property owners, those very
petitions that we're referencing here today from the September 12th
and 26 meetings have come a long way, in many ways belatedly, and
come before the Board of County Commissioners.
So, there's a question that we still need assistance from the Court
to help us with is notwithstanding that the board may determine what
acreage means, do these same affected property owners have the
ability under the procedural aspects of the ordinance to effectuate an
implementation of that enlightened definition?
COMMISSIONER MAC'KIE: And, David, if we do, haven't we
been enforcing this ordinance since 1992? Presumably somebody
will have paid a golf course impact fee under an acreage
determination different from that legislative interpretation we're
discussing making and then can they come back in and say we want a
refund?
MR. WEIGEL: Well, we've had these discussions on this very
ordinance last year and that was there are certainly -- there are time
limitations in the -- in the ordinance as well as other procedural and
substantive aspects if the money has been spent.
But too much time has gone by. No one could ask for a refund
under the ordinance if those conditions have occurred. People can't
sit on their rights and privileges. To some extent there will be
finality. So, I think there is some protection in regard to a large scale
opening up the checkbook to pay people from long ago.
COMMISSIONER BERRY: But that -- excuse me. Mr.
Chairman?
I don't think that's going to stop them. If I were a person and this
had happened, I think I would perhaps think about pursuing it if there
had been an ordinance in place that ends up not standing the test of
all the legal aspects.
As a board member, I'm concerned that we should have been
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reviewing this ordinance perhaps every three years, why were we not
reviewing this ordinance every three years? And that -- that's one
issue that raises -- is brought to me as a commissioner.
I -- it seems like we do have a little problem here with the
ordinance, and if this was something that was going on, it's
something that should have been brought to us and we should have
been looking at a long time ago.
We've certainly taken the hit over this impact fee issue. We were
inept, we don't care, we run slipshod, we've been accused about
everything that you can come up with.
And if we've got a flawed ordinance, then I think we need to look
elsewhere and let's stop blaming everybody, but let's get the
ordinance fixed. My fear is we're going to lose everything. I -- what
I'm afraid, that there is going to be a large drain on the checkbook
and what funds we have collected on impact fees, who can -- who
can guess what the courts are going to say.
I don't know. I'm not an attorney. But when it comes down to
fairness, I would hope that they would rule in favor of fairness and
say, you know what, guys, this thing is a mess. You opened up your
checkbook and you start writing checks back to these guys because
this has not been applied fairly and in the manner that it should be.
And that's just my own -- I'm not an attorney, obviously, but it
just seems in the sense of fairness that that's something we need to
consider.
CHAIRMAN CARTER: Mr. Brandt.
COMMISSIONER BRANDT: Mr. Chairman, I'm not an attorney
either, but when we had these first discussions back on September
12th and 26, I, too, was concerned about fairness.
I heard the attorney tell us that there was some legal issues
associated with this. And that's one of the reasons I have -- I have
requested that this be brought back along with Commissioner
Mac'Kie and Commissioner Carter for reconsideration and I will still
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October 1 O, 2000
support reconsideration.
The -- the further issue I have with it is that assuming that some of
the statements that have been made here are true and that we've had
some difficulties, not only in the way the ordinance in the past has
been interpreted and administered, I still feel that somewhere along
the way, we have to have clarity and some judgment given about
what the authority of this board is in instances like this.
If that requires going to court to get that clarity, then I support
that. I am concerned about the timing that I heard from Mr. Weigel
just a few minutes ago about four weeks and -- and it might be
delayed to a point where I won't even be here to make any kind of an
impact, but I think it's very important not only for the taxpayers of
this community and the staff who have participated in this overall
activity to -- to have clarity brought to this issue.
It's also a need for the board members to have clarity so that the
board will know what its authorities are. So, I will support the efforts
to achieve that.
MR. BROCK: Commissioner Carter, may I --
CHAIRMAN CARTER: Yes, sir.
MR. BROCK: May I address one of the issues that was brought
up?
There was an issue brought up as to whether or not if in fact you
were to define total acreage today. If that definition would affect
people in the past in which this ordinance had been applied to, as it
relates to golf courses, that is an issue which has been discussed and
obviously the courts would probably look to the way that it was
applied in the past in trying to determine what was intended, what
was the legislative intent to how it would be defined in the future.
One of the things that I think we have discovered, and we are still
exploring that, Mr. Olliff may have the -- an answer, but one of the
things that we have been exploring is whether or not that has been
applied in some manner in the past.
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October 10, 2000
And it is our preliminary determination that the definition of total
acreage has never been applied as it relates to golf course. Now, I
certainly have not explored the records in totality to determine
whether or not that is a correct statement.
But, in our preliminary examination of the records, we have been
unable to find a scenario in which total acreage has been applied.
COMMISSIONER MAC'KIE: And then on what was the impact
fee based?
MR. BROCK: Well, I think what we have got in the bundle of
golf courses that we're looking at, we're looking at the golf courses in
which this ordinance was applicable.
MR. OLLIFF: In most cases I think you're looking at an
exhaustive list since 1992.
COMMISSIONER MAC'KIE: Oh, so the 14 is everything since
1992.
MR. OLLIFF: As far as I can tell, yes.
COMMISSIONER MAC'KIE: Frankly, that makes me feel a
little better anyway. There was amorphous concern that may be out
there somebody had paid and how did they know they were supposed
to pay and blah, blah, blah.
MR. OLLIFF: Right. I think there was a concern there was a
boat load of other developer projects that were out there that had
already come through the process and paid a fee based on gross
acreage, and I don't think that's correct.
CHAIRMAN CARTER: Okay. Understanding--
MR. BROCK: That was clearly one of the issues that both your
legal counsel, your county manager and your Clerk of Courts was
concerned with and wrestled with trying to get a solution to.
CHAIRMAN CARTER: Well, I understand consistency, I
understand application. Fairness is perceptual. That does not fit into
this process for me and that's why I'm looking for the interpretation.
I think I'm also hearing that if we decide to send it forward to the
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October 10, 2000
judiciary, there is an opportunity in there for all parties to continue
the discussion and it may be settled on the courthouse steps, if I can
use that term, prior to going to the judiciary.
Now, if I am misinterpreting that, counselor, County Attorney's
office, please let me know that.
MR. WEIGEL: I don't know that we can settle it outside of the
court because the idea of this kind of lawsuit is to look to the Court
for guidance and interpretation.
However, you're right in line with our thoughts and that is we
don't have to file a suit next week. In fact, it's a rather
comprehensive lawsuit, no question, because we have many similar
procedural issues to ask, but we also have little nuances of facts for
many of these different applicants.
So, it's going to be quite -- quite an effort to create the lawsuit that
answers all the questions that we need, and that's our thought is, that
before we would file, we, meaning the county -- Clerk and the
County Attorney office, both and the county -- for the Board of
County Commissioners, both as parties plaintiff asking the question
of the Court, would work with the named defendants, the property
owners, so that we could flush out and to the extent that we can
simplify and reach agreement and efficiencies in the court process.
We can do that before we ever file it.
COMMISSIONER MAC'KIE: The only --
CHAIRMAN CARTER: That's why we would continue to move
this forward and postpone it until we reach the point; in other words,
a vote for reconsideration today would say that it may be months
before we come back with the final reconsideration.
COMMISSIONER MAC'KIE: Okay. I just want to be clear
though that my motion is to reconsider it in accordance with the
ordinance and that is that it would come back in four weeks, because
I don't want to put it out there to some nebulous God knows when we
discuss it again.
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October 10, 2000
MR. WEIGEL: It would take a separate motion for the four
weeks, otherwise, the ordinance applies how it indicates it unless a
separate motion is made based upon, and I would firmly want it
linked upon our reaching to the Court for assistance in interpretation.
CHAIRMAN CARTER: Commissioner Berry?
COMMISSIONER BERRY: I want to understand what we're
going to do with the courts. Maybe I misunderstand you, David, but
did you say -- are we suing these individuals?
MR. WEIGEL: In order to have the matter fully before the Court,
we would be plaintiffs. We would name them as defendants. All
parties will have an opportunity to flush out their story, their side,
their interpretation, their recommendations to the court. But the
question will be what we have defined.
We're not suing them for money. We're suing -- we're filing a
lawsuit to get it into the court so that we can ask these academic
questions of the court so that we can apply the ordinance and they
will understand how it's applied to.
And, so, we should answer nearly all questions and just to add a
little additional comment here, questions of constitutionality may
well be raised in the response that we have there. We recognize that.
But unhappy people can raise that question at any time. They
haven't done so up till now.
COMMISSIONER MAC'KIE: And --
COMMISSIONER BERRY: This isn't going to -- I mean, what
this is going to result in, this is not a friendly lawsuit.
MR. WEIGEL: Well, it's for declaratory judgment.
COMMISSIONER BERRY: Well, we can -- David, I hate to
disagree with you on it.
MR. WEIGEL: I didn't say friendly.
COMMISSIONER BERRY: And I don't disagree with you often.
MR. WEIGEL: I didn't say friendly. It's not as adversarial as
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October 10, 2000
going after someone and to, you know, get a pound of flesh.
COMMISSIONER BERRY: I would venture to say that this is
not going to be anywhere near a friendly lawsuit, or not that you said
it was, you didn't say that, but I think that this is going to take on a
life of its own and I could well imagine that the -- that the golf course
builders out there are not going to lay down and roll over and say,
okay, you just tell us what we want -- what you want us to do.
I think this is going to take on a life and going to go forward with
a vengeance.
COMMISSIONER MAC'KIE: And I just need to say I don't care
if it's a friendly lawsuit or not a friendly lawsuit.
COMMISSIONER BERRY: Okay. I just don't want to lose it all,
Pam.
COMMISSIONER MAC'KIE: I know, and, Barb, I understand
that they are out there rattling sabres and making threats about if you
bring this, you know, declaratory judgment action, then by God we're
going to bring out the cannons and we're going to sue you for-- you
know, make this -- try to make the Court determine that your
ordinance is unconstitutional.
COMMISSIONER BERRY: Well, I haven't heard that, but I'm
just afraid that --
COMMISSIONER MAC'KIE: Well, that's what they're going to
COMMISSIONER BERRY: -- we're going to end up refunding
money and I'm not real happy about that.
COMMISSIONER MAC'KIE: Those are the sabres being rattled
but -- but the point is we don't know if we have the authority to do
anything other than say give us all the money Schedule A says is
due.
And, so, this is friendly in the respect that we are willing to say
we would like to find out if we have the authority to require payment
of something other than Schedule A which you all believe and we
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October 1 O, 2000
have said we would like to hear, you all believe is too hot.
So, we are saying, and that's as friendly as we can get when what
we're being told is we -- the check isn't going to get cut, guys. We
can listen to your alternate calculations until the cows come home,
but you're not going to get any of your money back until the Court
determines whether or not we have the authority to give you back a
portion of your money whether we think it's fair or not. So, here we
are.
Now, we've got to go to court or maybe this acreage stuff is -- is a
solution to the problem if that's the way to be fair and legal. But, you
know, sabre rattling, if you got to do it, go ahead but we can't do
what we can't do.
CHAIRMAN CARTER: Well, that's true, commissioner.
Posturing is always a part of the negotiation process. To me it's more
interesting than what goes on within the climate of the negotiation
itself in terms of all the parties trying to come up with an agenda of
items and finally do go to the Court that say that we need
clarification on this in terms of what we can or cannot do.
And that's just a layman talking, but on the negotiation side, it can
go just about anywhere you want. It can be as adversarial or it can
be as friendly as the parties choose to do. And if they want to look at
the overall development picture in this county, currently what's been
done and in the future, I would think that all parties would look to
trying to do it in the least adversarial way.
COMMISSIONER BRANDT: Mr. Chairman, if I may?
CHAIRMAN CARTER: Yes.
COMMISSIONER BRANDT: We should end up with nothing
less than a clear understanding of what the authorities and abilities of
this board are in this kind of a situation. And I think we have to do
whatever it takes to get that clarity and that judgment made so that
future boards, this board and future boards, will know what their
authority is. And I will support whatever it takes to get there.
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October 10, 2000
COMMISSIONER BERRY: Mr. Chairman?
MR. BROCK: Mr. Chairman?
CHAIRMAN CARTER: Commissioner Berry.
COMMISSIONER BERRY: One last comment. There's no other
way other than a lawsuit that you can get any kind of-- of a
clarification on this ordinance? The only -- you're telling me that the
only way that we can get any clarification is to go through a lawsuit
process? Is that correct?
CHAIRMAN CARTER: That's what I am hearing, Commissioner
Berry.
MR. DOYLE: Could I interject here just a moment? I think there
may be a possible middle ground here and I think what Mr. Dwight is
-- Mr. Brock is suggesting is that there may be this middle ground
which would be an interpretation of the ordinance that would require
some action by this board.
If we have four weeks, I think that's sufficient time for us to
attempt to explore that with the Clerk, with the County Attorney to
try to be able to bring something back to you in four weeks and,
hopefully, we could avoid litigation.
I understand Mr. Brandt's position with regard to having some
clarity as to what you can and can't do, but I think that we might be
able to clarify that. And I'm not representing to you that it will -- that
we can definitely resolve all the problems, but certainly we ought to
give -- give it a try.
MR. BROCK: Mr. Chairman?
CHAIRMAN CARTER: Yes, Mr. Brock.
MR. BROCK: I think what the County Attorney's office and I are
suggesting to you is that the motion be adopted to reconsider this
issue pursuant to the ordinance in two meetings.
During that period of time, the County Attorney's office will
explore the options that are available to the County Attorney,
including but not limited to what is called a declaratory action, a
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October 1 O, 2000
lawsuit in which the parties go before the Court simply for the
purpose of defining what our rights and responsibilities are so that we
all have a clear understanding if we get relegated into a posture
whereby that is the only alternative or that is the alternative that is
chosen at your discretion.
But during that period of time between now, if the motion to
reconsider is adopted, that we would get with all of the parties and
see if in fact there is a process in which meets with the County
Attorney's legal approval puts me in a posture in which I do not feel
in legal jeopardy by cutting a check and gives you then the discretion
to make the ultimate determination.
If in fact we have an ordinance which is indefensible, whether or
not that ordinance gets challenged in the course of the process of our
deck action, does not necessarily preclude that ordinance from being
challenged at some future time by some other party. That is left to
the whim of the parties.
I think it is the position of the County Attorney's office and the
position of the Clerk's office that we have a legally defensible
ordinance. But that is something that we don't have any control over
whether or not that gets challenged. We may ultimately, David's
office, the County Attorney's office, may have the ultimate
responsibility to defend that action, but anybody can challenge that at
any point in time.
And simply by us going forth and asking the Court to define for
us our rights and privileges or rights and responsibilities under the
ordinance, I don't quite understand, other than as Commissioner
Mac'Kie says through sabre rattling, how that has any impact
whatsoever on anything that we as a body politic, you as the board
and me as the Clerk should be engaged in.
We understand where the developers are coming from in terms of
them wanting to work with us to try to come up with a resolution that
is fair and equitable and in compliance with the law, and we're all
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October 10, 2000
including, I suspect, each and every one of you are ready, willing and
able to try to accomplish that.
All we're asking is give us the time to go through the process to
try to do that. And ultimately then you have to make a discretionary
decision as to what you're going to do with what we bring back to
you.
COMMISSIONER BERRY: Mr. Chairman?
CHAIRMAN CARTER: Commissioner Berry.
COMMISSIONER BERRY: The other day when you and Mr.
Olliff and Mr. Weigel came in and discussed this issue with me, and
since I had not been at the 26th meeting and you brought this to my
attention, it was my understanding at that time that you wanted to get
clarification from the courts.
And I believe I told you that I thought that's probably what would
have to happen. And if it -- if that was it, I had no problem with that,
but at no time was there an indication that we were going to have to
sue somebody else to get that.
Okay. That -- that's my concern, Dwight. It has nothing to do
with going to the courts and letting them tell us what our rights are
and what our limitations are and what we can do and what we can't
do and all that other.
But what I'm opposed to is I'm not ready to file suit against
somebody, but I'd love for the courts to say here are your-- this is
what the ordinance allows you to do and here's what it says you can't
do. That's all I'm looking for, but if you want more -- MR. BROCK: May I respond?
COMMISSIONER BERRY: -- than that -- if you want to go
further than that and you have to sue somebody to do it, then I'm
going to be very reluctant to go in that direction.
Now, if you can get this clarification through the courts without
that, that's fine with me.
MR. BROCK: Well, commissioner, we could go to the courts. In
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October 10, 2000
re, the Board of County Commissioners without naming another
party for a deck action to define our rights and responsibilities.
However, to do that, it would be binding upon no one other than
you. In addition, out of-- unless they intervened, the parties brought
upon themselves the responsibility of intervening into that lawsuit,
they would not even have an opportunity to present their side.
David and I both understand that the other side may have a
position that is different and contrary to ours. And what we are
Saying, in order to be fair, everybody should have an opportunity to
present their side of the argument and that is the mechanism in which
we're trying to employ to accomplish what I've just said we were
trying to do.
COMMISSIONER BERRY: Well, it was my understanding that
we would get the clarification from the courts as to what the
ordinance said. Then the Board of County Commissioners will take
that, after we've been told, yes, you can have a hearing or, no, you
can't or whatever the ordinance speaks to.
At that point in time, if there is a concern and we think we need to
go forth with court action, if that's what it spells out, then I would
think that would be appropriate, but I -- at this point in time, I'm not
sure that we're there yet and that we should be doing this.
I -- again, I -- I'm really looking for the clarification of the
ordinance because I think that's going to define and I -- forgetting at
this point in time, take everybody out of it, but I want them to look at
the ordinance and tell me, number one, is this ordinance valid, is it
good, is it not good? Does it make that complete loop so we have --
because it is a fee, it's not a tax, are all the connections made here to
do what we need to do?
COMMISSIONER MAC'KIE: Barbara, respectfully though,
you're arguing against yourself because -- because --
COMMISSIONER BERRY: Only an attorney could figure that
out.
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October 10, 2000
COMMISSIONER MAC'KIE: Well, you don't want -- you don't
want to take a question to the Judge that may result in an answer you
don't like. We don't want to take a question to the Judge, is this a
good ordinance, is this constitutional? Of course, it's a good
ordinance. Of course, it's constitutional. Of course, it's enforceable.
We have one question for the Judge, and that is whether or not we
have the leeway to be equitable in determining the fee that's due as a
result of these procedural errors.
Nevertheless, it sounds like we have a better alternative
presenting itself to us today, and that is if we would vote to
reconsider, then we have a month for the parties, the lawyers, to sit
down and see if there is something other than a lawsuit. And that's
what I hope can be the result of this.
COMMISSIONER BERRY: Okay. So, you're telling me that
we've got four weeks before we have to make the determination to go
to the Court?
COMMISSIONER MAC'KIE: Yes, ma'am.
COMMISSIONER BERRY: Then I will support this, but if
you're saying today this is exactly where we're going, then I'm not
going to support it.
COMMISSIONER MAC'KIE: That would require a second
motion and I'm not making it at this point.
CHAIRMAN CARTER: Commissioner Brandt.
COMMISSIONER BRANDT: That clears it up.
CHAIRMAN CARTER: Okay. Thank you.
Next speaker?
COMMISSIONER MAC'KIE: I think the clerk wants to -- no?
MR. BROCK: That was exactly the point that I was going to
make was, as I understand what is being recommended to you, it's
not that we charge out tomorrow morning and file a deck action, that
we explore what our options are, and in two weeks or in two
meetings, four weeks, that it be brought back for you to, one, either
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reconsider all of these or, two, for you to reconsider it and take a
recommendation from your County Attorney's office to continue it
pending resolution of litigation.
CHAIRMAN CARTER: You hear that, Commissioner Berry,
we've got four weeks to --
MR. OLLIFF: Or three. Or three. You'll be presented with some
alternative proposals which the board could make a decision on that
would preclude us from having to go to court or perhaps preclude us
from having to go through each of those individual hearing
reconsiderations again.
COMMISSIONER BRANDT: Okay.
CHAIRMAN CARTER: Okay. Next speaker?
MR. OLLIFF: Next speaker is -- had to leave but he simply
provided copies of a letter that he'd like entered into the record. He
was a representative of Toll Brothers, Incorporated and I think he's
trying to simply request that the board allow Toll Brothers to go
through an alternative road impact fee hearing, and I think he's just
simply going to be -- one of the other developments that's going to be
decided as this progresses along.
CHAIRMAN CARTER: Any other speakers?
MR. OLLIFF: No, sir.
CHAIRMAN CARTER: We have a motion and we have a
second.
All in favor, signify by saying aye.
Opposed by the same sign.
Motion carries four oh.
All right.
COMMISSIONER BERRY:
guess.
CHAIRMAN CARTER:
Everybody needs to get to work, I
That's right. We have four weeks.
Item #12C1
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October 1 O, 2000
ORDINANCE 2000-62 AMENDING ORDINANCE 97-35, THE
COI,T,IER COl JNTY CITATION ORDINANCE- ADOPTED
Okay. This takes us to our afternoon session, on advertised
public hearings, and Item (b)(1) has been continued indefinitely,
which takes us to Item (c)(1).
COMMISSIONER MAC'KIE: Which is just the codification of
issues that we previously discussed, and I'd like to make a motion to
approve.
CHAIRMAN CARTER: Do I hear a second?
COMMISSIONER BRANDT: Second.
CHAIRMAN CARTER: All in favor, signify by saying aye.
Opposed by the same sign.
Motion carries four oh.
Thank you for your presentation, Michelle.
MS. ARNOLD: Thank you.
Item #12C2
RESOLUTION 2000-360 FINDING THAT THE
REDEVELOPMENT AND PLANNING ACTIVITIES ARE
UNDERWAY IN THE GATEWAY TRIANGLE/BAYSHORE
COMMUNITY REDEVELOPMENT AREA AND THAT
PROJECTS IN THE AREA ARE TO BE IN CONFORMITY WITH
THE COMMI INITY REDEVEI.OPMENT PI.AN - ADOPTED
CHAIRMAN CARTER: That takes us to Item (c)(3) and this
has been continued to October 24.
COMMISSIONER MAC'KIE: (c)(2).
COMMISSIONER BRANDT: (c)(2).
CHAIRMAN CARTER: I'm sorry. (c)(2). Well, moving along
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October 10, 2000
here. (c)(2), recommendation that the Board of County
Commissioners adapt a resolution to find that redevelopment and
planning activities are underway in the Gateway Triangle-Bayshore
Community Redevelopment area, and the projects in the area to be in
conformity with the community redevelopment plan.
COMMISSIONER MAC'KIE: Would that be the award winning
redevelopment plan?
MS. PRESTON: Yes, that would be part of the award winning
redevelopment plan.
For the record, Debrah Preston with your comprehensive planning
section.
The item before you today is a resolution that would assure that
any projects that are coming through would be in conformance with
the plan.
On the visualizer I put up a map that shows the specific projects
that we're looking at for the first phase of the redevelopment
activities. They focus primarily --
COMMISSIONER MAC'KIE: Can you tighten it, however you
get it closer? I don't have any -- somebody help her.
CHAIRMAN CARTER: Thanks.
MS. PRESTON: Thank you.
The areas primarily are around U.S. 41 and the Davis triangle
area, the mini triangle that we've been referring to which we have an
RFP out on. The streets will be advertised in October. The Bayshore
overlay district, which we are working on, will be adopted at the end
of this year, December 13th.
We're also looking at Gulf Gate Plaza and redeveloping that as a
town center, some flex office space again in the gateway triangle
area, and then we're proposing, that's starting in January of 2001,
we'll be looking at a U.S. 41 overlay to assure that segment of U.S.
41 is consistent with the other project that we've outlined.
So, this is really where our focus is for this resolution. Someone
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October 10, 2000
that may be looking at a project on Airport Road or Davis Boulevard
where we have not specified any exact changes in the redevelopment
plan would go along according to the zoning and land development
code that's currently in place.
This is to assure that any projects that come through where we're
looking at making changes based on the redevelopment plan would
have to be consistent with that vision of the redevelopment.
COMMISSIONER MAC'KIE: Mr. Chairman?
CHAIRMAN CARTER: Yes. Commissioner Mac'Kie.
COMMISSIONER MAC'KIE: In fact this is -- this is where the
decision starts getting a little more difficult politically. We have --
we have an award winning plan. We have wonderful ideas and now
we have to start implementing them or we will have a great plan with
some dust on it that never sees the light of day on the ground.
And in order to be sure that the plan is implemented, what we
have to do -- because if you think about it procedurally, we've got
zoning overlays to adopt, we've got zoning codes to change. There
are a lot of things that have to happen in order to be able to
implement this plan.
What we do today is say as to portions of this that are targeted -- I
forget what you call them -- I always say instigator projects. MS. PRESTON: Catalyst projects.
COMMISSIONER MAC'KIE: Catalyst projects, that we need to
-- we need to be sure that those catalyst projects have every
opportunity to go forward and it's something that can't happen in the
meantime to scuttle or undermine the propose.
In the meantime, people can continue to operate as they currently
do. They can continue to make improvements to their property
within some limits and they are encouraged to make changes and
improvements to their property that conform with plans for
redevelopment.
CHAIRMAN CARTER: And I -- I don't want to make any
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October 10, 2000
assumptions here, but let me ask. Do we have the process in place as
people go through this that they're well aware of the big picture of
this total, total plan that the catalyst projects are integrated into this?
MS. PRESTON: Someone on our staff usually sits in at a pre EP
meeting when someone comes in in the Bayshore-Gateway area for a
site improvement plan or a site development plan so that we're
making the current planning staff aware of what our goals are for the
redevelopment area and we can work with the --
CHAIRMAN CARTER: Okay. I heard the word "usually", and I
would feel more comfortable if it was always --
MS. PRESTON: Always. We always make sure.
CHAIRMAN CARTER: -- so I don't have a nightmare come
back later.
MS. PRESTON: Yes. We can do that as soon as we go through
this process.
CHAIRMAN CARTER: And you will continue to have public
hearings; that is, the fact certain groups within this, whether it's a
catalyst project or it affects the total project because I know that
there are certain property owners at times who come and I have
concerns, and I would like those issues dealt with as we go through
that process, so that they never feel left out or be bulldozed, if I can
use that term, by the overall -- overall project.
And I totally support the project. Don't get me wrong. I just want
to make sure that we hear all the parties as we go through it.
MS. PRESTON: Great, and we'll be coming back to the CRA
board probably after the election and the new commissioners take
their seats with a recommendation for a CRA advisory committee for
the Bayshore-Gateway area.
And we'll be meeting with them at least on a quarterly basis and
they will be reporting back to the CRA board to try and keep both the
public and the board fully aware of what's going on.
CHAIRMAN CARTER: Okay. Thank you. It almost sounds
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October 1 O, 2000
like a workshop to me.
MR. OLLIFF: Mr. Chairman, you have one speaker. Larry
Ingram.
MR. INGRAM: What I'm going to give you is just a copy of the
Florida Statute.
MR. OLLIFF: Larry, you need to be on the record.
COMMISSIONER MAC'KIE: Larry, you need to be on the
record.
MR. INGRAM: Yes.
CHAIRMAN CARTER: Yeah, and you'll have to get on
microphone and identify yourself for the record.
MR. INGRAM: My name is Larry Ingram. I own the southerly
188 feet of Lots 137 and 138 of Naples Grove and Truck Company's
Little Farms. This is the parcel that backs up to the Gulf Gate Plaza.
COMMISSIONER MAC'KIE: Basically, part of the pink on our
map there.
MR. INGRAM: Which was news to me because the executive
summary only refers to Gulf Gate Plaza, and this is not a portion of
that parcel.
I have some real concerns because I think that whoever came up
with this plan has clearly never done real estate development. And
I've been in the business now for about 30 years. And you don't
improve the commercial. You improve the residential and the
commercial will take care of itself.
You can improve the commercial and it will have no effect on the
residential around it. So, basically, I think you're putting the cart
before the horse.
The secondary issue that I'm not certain that your staff has
pursued is the liability that the county taxpayers are going to have to
some of these property owners.
Fortunately, the legislature passed an act called the Burt Harris
Act that says that if you take away my property rights, you have to
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October 10, 2000
pay for it in its simplest terms.
And I think with some of these parcels, what you are
contemplating is taking away someone's property rights.
The other issue that concerns me is how this district was
gerrymandered around Naples Land Yacht Harbor. You've included
every mobile home park in that area except Naples Land Yacht
Harbor. And I have heard that one commissioner's parents live in
this mobile home park.
COMMISSIONER MAC'KIE: That would be mine.
MR. INGRAM: And I take great offense that it was not included
if you're going to include that. If you're going to include my
property, why wasn't this one? The district very conveniently
gerrymanders around that mobile home park.
COMMISSIONER MAC'KIE: I can honestly tell you I don't
know where it is on the map, Larry. Which piece is it?
MR. INGRAM: Where you go visit your parents is where it is.
COMMISSIONER MAC'KIE: I know where it is on the ground.
I don't know where it is on that map.
MR. INGRAM: On that map, it is right here, this large parcel
right here.
CHAIRMAN CARTER: You need to get on microphone over
there.
COMMISSIONER MAC'KIE: Okay. Debrah, do you recall why
it's left out? I don't know.
MS. PRESTON: I believe the -- or the --
MR. INGRAM: Right here is where it's located. This --
COMMISSIONER MAC'KIE: Got you.
MR. INGRAM: -- inverted L-shaped parcel. You've included all
the mobile home parks down on Bayshore Drive, but this one was
left out.
MS. PRESTON: This redevelopment boundary was really based
on the MSTU boundary that was done for the landscape of Bayshore
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October 10, 2000
Drive. We had sent out notices to all the affected properties within
that area.
I believe when we were doing the MSTU boundaries that there
was in that millage code to the left of where our boundary ends a
concern that they did not want to be included in the taxing district
that was set up, and so we did not include them in the MSTU
boundaries, and then when we progressed with the CRA plans, we
basically stayed with the same boundaries that were identified within
the MSTU.
MR. INGRAM: Well, back to the issue. I think you're putting the
cart before the horse. You can put a Philharmonic on the Gulf Gate
Plaza and the people who live in that neighborhood are not the type
of people who are going to go and use that type facility.
COMMISSIONER MAC'KIE: I think it depends on the parking
that you charge that's offensive.
MR. INGRAM: It is basically lower middle income
neighborhood and I think that needs to be taken into consideration.
You improve the residential, again, the commercial will take care
of itself. I think the county taxpayers are going to be very
unpleasantly surprised at the dollar tab on these commercial
properties that's going to come with this.
It's obvious to me that whoever came up with this plan has no
experience in real estate development. It's nice to sit in the county
office and theorize but until you've been out there and put your own
money at risk, which I have, you don't understand the game. Thank
you.
MS. PRESTON: Just for the record, the plan does call for some
residential stabilization and some improvements in the neighborhood
to the east of Shadowlawn Drive and then down further south on
Bayshore as well.
So, this map tends to hit the catalyst projects which will generate
the most revenue for the redevelopment, but the plan also calls for
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October 10, 2000
working in those residential neighborhoods and upgrading them.
COMMISSIONER MAC'KIE: Debrah, have you consulted with
the County Attorney's office about whether or not we are proceeding
appropriately?
MS. PRESTON: Yes, I have.
CHAIRMAN CARTER: Commissioner Berry.
COMMISSIONER BERRY: Mr. Ingram raised a question, I
guess, that I had thought about and that has to do, do we know or
have any idea what the cost is going to be or is there going to be a
cost to the taxpayers of Collier County in this?
MS. PRESTON: This program was set up using the tax increment
and financing mechanism that's allowed under the statute, and that, of
course, froze the tax base at the 1999 level, and then the increment as
property values increase are directed back into the CRA program.
So, we hope to leverage that amount into the area and you can
also take the tax increment and bond out if you need to later on.
In working with the developers, that is sort of an incentive base.
So, right now I can't come to you and say that we're going to be
asking for any additional costs from the taxpayers for this project.
We do have a funding mechanism in place and that's the tax
increment financing, and as this progresses, that increment should
continue to rise and then just be funneled back into the project.
COMMISSIONER BERRY: It was my understanding that this
was very similar to what took place on Fifth Avenue.
COMMISSIONER MAC'KIE: Exactly.
COMMISSIONER BERRY: Is that not correct?
COMMISSIONER MAC'KIE: Exactly.
COMMISSIONER BERRY: So, it -- and I don't know that
anybody realized -- I'm not sure. I couldn't swear to that but I didn't
think that any taxpayer, other than the taxpayers on Fifth Avenue,
had any increase based--
COMMISSIONER MAC'KIE: No.
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October 10, 2000
COMMISSIONER BERRY: -- on that particular redevelopment
COMMISSIONER MAC'KIE: The farthest you can stretch this is
that as the property values increase within this district, instead of that
increment being shared countywide, it's only spent within the district.
And if that concomitantly increases some offsetting costs, you know,
that's the only possibility.
CHAIRMAN CARTER: Other speakers?
MR. OLLIFF: No, sir.
MR. INGRAM: Now, that statement is not accurate.
COMMISSIONER MAC'KIE: You're not on the --
CHAIRMAN CARTER: Excuse me, sir. You're not on the
record. I cannot -- you had your mm. I cannot let you come back.
MR. INGRAM: Well, Miss Mac'Kie, when the county staff takes
up my time to speak and you come out and make statements that are
absolutely untrue, I feel I should be given the opportunity to set the
record straight.
CHAIRMAN CARTER: Okay. I was asking from the dais. If
we interrupted your time, then I apologize, and you may answer the
question, but I'm not going to give you another five minutes to --
MR. INGRAM: I'm not asking for another five minutes. I don't
want to wind up in a lawsuit with the county because before it's over,
not one of you will be here. But you have something involved here
CHAIRMAN CARTER: Don't count on that, sir.
MR. INGRAM: -- that goes beyond what I think has been
considered. And that is essentially an inverse condemnation issue
when you're talking about redevelopment of a piece of property and
you have never even contacted the owners of the property.
COMMISSIONER MAC'KIE: Mr. Weigel, have you considered
the issues that Mr. Ingram is raising and has your office considered
that in the advice they've given to us that we can go forward with this
today?
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October 10, 2000
MR. WEIGEL: Well, I'm not -- I'm not going to say that you
can't go forward with this today. Any factual issues about individual
properties, et cetera, that the staff and the outside counsel that we're
using here, I expect, would reckon with those things.
COMMISSIONER MAC'KIE: Yes.
MR. WEIGEL: And they were following the procedure and
process generally, I will note that although the Burt Harris Act does
obviously provide certain private property rights that are to be
respected by local government, there are questions of nexus and the
amount and degree. And I think we're within those at this point in
time, unless facts later to be brought to my attention and being in
general opinion.
CHAIRMAN CARTER: So, does that answer your question?
COMMISSIONER MAC'KIE: Actually, I had it answered ahead
of time because we were very careful to lay the legal foundation to
be sure that the actual taking today would be in accordance with the
applicable law and we have hired expert legal counsel for that
purpose.
CHAIRMAN CARTER: Entertain a motion?
Any other speakers, Mr. Olliff?
COMMISSIONER MAC'KIE: Close the public hearing.
CHAIRMAN CARTER: Okay. Close the public hearing.
COMMISSIONER MAC'KIE: Motion to approve.
CHAIRMAN CARTER: Is there a second?
I'll second it.
Discussion?
COMMISSIONER BRANDT: Excuse me. Mr. Chairman, the
concern I have here is that I'm not sure I fully understand what this
resolution is really attempting to do. And I know you've tried to
explain that to me, but perhaps I'm just a little more dense today than
I normally am.
MS. PRESTON: And if I may, Debrah Preston again. What this
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October 10, 2000
resolution is intending to do is that while we have things sort of in
the pipeline, we have a Bayshore overlay that's currently being
worked on, we have an RP that's going out on the street for the mini
triangle project, that if someone comes in to sort of gain financial
benefits later on by purchasing a property or going in and building
something that won't conform to the resolution, this was -- will allow
us to hold on issuing any kind of building permits or rezones or site
improvement plan approvals until we get those projects, either
regulatorily approved or select our developer.
These projects that are shown here today are basically the projects
that were outlined in the plan. I'm not suggesting that we're going to
go and do the Gulf Gate Plaza, town center redevelopment project in
the next six months or something.
But as we begin to implement the plan, we will be bringing things
through the pipeline to either have them adopted via a land
development code change or through the selection of a developer for
a specific project.
So, this is an example of the areas that we're focusing on. We're
again not really looking in the first five years to do anything around
Airport Road or David Boulevard. This is really to be sort of
proactive and to protect your investment in setting up the CRA in
trying to implement the plan.
COMMISSIONER BRANDT: Mr. Weigel, what would happen if
this resolution is not passed today? What's the consequence of it?
MR. WEIGEL: The status quo remains. It's a resolution that
could be advertised and adopted at a later date.
COMMISSIONER MAC'KIE: And in the meantime --
MR. WEIGEL: In the meantime --
COMMISSIONER MAC'KIE: In the meantime people can come
in -- for example, let me be real specific. In the mini triangle, you
know the area we're talking about, just for example, someone could
come in and decide they want to build a boat yard or something that's
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October 1 O, 2000
not in conformance with the -- the redevelopment plan.
Absent this resolution, there's nothing on the books by which we
can say we are going to hold that application. With this resolution,
we can say, no, you're not going to do that today because we are in
the process of changing the rules so that we can redevelop this area.
This is a part of the process by which redevelopment agencies
have to -- if we don't take this action, then status quo, what you see
there today continues until all of the process catches up and -- and it
defeats the purpose.
COMMISSIONER BRANDT: Okay. Thank you.
CHAIRMAN CARTER: We have a motion. We have a second.
All in favor, signify by saying aye.
Opposed by the same sign.
Motion carries four oh. Thank you.
Item #13Al
RESOLUTION 2000-361 RE PETITION V-2000-15, JAMES
HOUSER OF QUAILMARK HOMES, 1NC., REPRESENTING
EARL AND ADA ENGELMANN, REQUESTING A 3 FOOT
AFTER-THE-FACT VARIANCE FROM THE REQUIRED 20-
FOOT REAR YARD SETBACK FOR ACCESSORY
STRUCTURES TO 17 FEET FOR PROPERTY LOCATED ATA
4377 POMARINE COURT, FURTHER DESCRIBED AS LOT 65,
I:tI.OCK K~ IJONGSHORF, IJAKFJ l INIT 5D- ADOPTFD
CHAIRMAN CARTER: All right. That moves us to Item 13(a),
which is Florida Zoning Appeals advertised public hearing Petition V
as in Victor, 2000-15, James Houser of Quailmark Homes, Inc.
MR. OLLIFF: Mr. Chairman, I think we need to swear in on this
one.
CHAIRMAN CARTER: All of those who are going to participate
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October 1 O, 2000
in this need to be sworn. (Witnesses sworn.)
CHAIRMAN CARTER: Is there any disclosures on the part of
our board members?
COMMISSIONER BRANDT: I had no contact or to the best of
my knowledge have had no contact with anyone on this other than
the information the staff was presented.
COMMISSIONER BERRY: That would be my situation as well.
COMMISSIONER MAC'KIE: Ditto.
COMMISSIONER BERRY: I have not had any contact with
either the petitioner or anyone connected with them other than
information in the board packet.
CHAIRMAN CARTER: I have had no contact with the petitioner
or his or her representatives in regards to this matter.
COMMISSIONER MAC'KIE: Ditto.
MR. REISCHL: Good morning, commissioners. Fred Reischl,
Planning Services.
This is a request for a three-foot after the fact variance for a pool
in Longshore Lake. You can see the location on the visualizer, the
lot in blue.
The -- according to the petitioner, the variance is requested
because of a miscommunication between the architect and the builder
of the house.
You can see on the visualizer the location of the pool
encroaching into the 20-foot rear yard accessory setback, and as you
can see out beyond the lot line is a lake. So, there is an amelioration
by a lake.
Although there is no land related hardship, this was taken into
consideration by the planning commission.
A letter of objection from a property owner, which you have in
your packet, located over here, was also considered by the planning
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October 1 O, 2000
commission.
They stated on the record that the land development code setbacks
for accessory structures of ten feet were being met; however, the
PUD setbacks are more stringent at 20 feet and therefore that the
three feet did not encroach as far as the land development code
related rear yard.
They also took into consideration the fact that this was the first
variance sought by this builder and they recommended approval to
the Board of Zoning Appeals by a vote of six to one.
CHAIRMAN CARTER: Questions from staff.
COMMISSIONER BERRY: This doesn't encroach as far as the
neighbors on either side of the aggrieved party? There's no concern
there?
MR. REISCHL: There is one neighbor on the southerly side, I
think, would be a good way to put it and the one to the northeast is
vacant.
COMMISSIONER BERRY: It's a vacant lot?
MR. REISCHL: Correct.
COMMISSIONER BERRY: So, the only objection to this came
from an individual more or less across the lake --
MR. REISCHL: Across the lake.
COMMISSIONER BERRY: -- and down the lake?
MR. REISCHL: That's correct.
CHAIRMAN CARTER: I understand though there are no special
conditions to request a variance in this situation. I mean, there's no
particular hardships here.
MR. REISCHL: No. Well, there's no financial hardship and no
land related hardship, correct, but our code also does consider that if
there are ameliorating factors, the board may consider those.
CHAIRMAN CARTER: Well, who would be responsible for the
hardships in this case? Who made the mistake?
MR. REISCHL: I believe that would be the builder.
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October 1 O, 2000
CHAIRMAN CARTER: And the architect.
MR. REISCHL: Who was a subcontractor of the builder? I
believe Mr. Houser can answer that question. MR. HOUSER: I can answer that.
CHAIRMAN CARTER: Mr. Houser, maybe you want to address
the board on this.
MR. HOUSER: Sure.
For the record, my name is James Houser. I'm a general
contractor for Quailmark Homes, Incorporated.
And just to let you know what -- basically how this came about, at
that time that we were developing this house, we were using a
subcontract architect that -- you know, he also -- part of his services,
he used an out-of-state associate to develop -- to develop the site
plan.
When this architect sent this plan to his associate, the associate
noticed that the pool cage would not fit and instead of, you know,
communicating with us, he basically just changed it on the site plan
and sent it back and nobody said anything.
Consequently, the supervisor in charge of the job accustomed to
trusting the floor plan dimensions felt comfortable and built the
house accordingly. This was not discovered until the plan went --
went for a CO to the county and the customer -- the service people
there discovered it.
Also, what helped to have this come about is an accident to
myself. I was usually in charge of reviewing the plans and was
recovering from surgery at the time and I was not at the time in my
office.
I was approximately out of the office around three months and
during that time, you know, my staff did their job keeping 15 projects
going during a real difficult time but, you know, unfortunately a
couple of things were a mess and this was the worst of it.
We certainly don't make these mistakes often. We built over 60
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October 10, 2000
houses on Longshore Lake, all of which fit very tightly on all the
lots. We've never had a problem. I certainly don't ever anticipate
this ever happening again and we have currently quit using that
architect. We have our own in-house architect presently who does all
phases of the drawings in our office and we've instigated a -- you
know, a double check system against the plans to make sure that this
can never happen again.
CHAIRMAN CARTER: If there was a spot survey done on this,
would it have been an indicator that we are in trouble?
MR. REISCHL: This is for the pool and current policy has been
changed as a result of this and other variance requests that now must
show the pool itself on the spot survey as opposed to just the outlines
of the slab. The building department has changed policy to include
the outline of the hole in the ground basically.
COMMISSIONER MAC'KIE: I have a question.
CHAIRMAN CARTER: Yes. Commissioner Mac'Kie.
COMMISSIONER MAC'KIE: Just reading the letter from the
objector, it sounds like -- well, they say that this would obstruct their
view of the lake to the north. Can you help me understand how that's
possible?
MR. REISCHL: The home would be over here, so looking north
across the lake, he's stating that the encroaching three feet would
block a portion of the view.
COMMISSIONER MAC'KIE: And what would be -- is there a --
well, a walkway around the edge of the pool? I mean, can you cut
this off?. What can we do besides take the whole thing out?
MR. HOUSER: The edge of the pool is right on the setback.
There's approximately -- basically, we would have to take the whole
pool right out of the ground and rebuild the entire thing, which is
kind of like -- it makes a little small deck area for the home owner.
The pool itself does not encroach, I mean, with just the deck
behind the pool and the screened enclosure, three foot on one side
Page 93
October 10, 2000
and one and a half foot on the other side.
COMMISSIONER MAC'KIE: But there -- considering that
there's three feet and one and a half feet, couldn't you take out part of
the deck instead of having to take out the whole pool?
MR. HOUSER: Well, if we did that, then the screen cage will be
right exactly at the pool making no -- no opportunity whatsoever to
walk behind the pool.
CHAIRMAN CARTER: Commissioner Brandt.
COMMISSIONER BRANDT: Mr. Chairman, not too long ago
we had a similar situation where a pool had been dug during the
construction of the house prior to the house foundation, as I recall,
being put in place.
And ultimately this -- the shell of the pool was right at the back
property line setback and had the same situation where, in order to
meet the code requirement, it would have required that pool to be
removed in a very similar manner.
The thing that was different, I think, about the other one is there
was no objection cited by anyone and--
CHAIRMAN CARTER: I think it was against the drainage
easement, that's why --
MR. REISCHL: Excuse me, commissioner.
Excuse me, Mr. Chairman, there was an objection to that one also.
COMMISSIONER BRANDT: There was?
MR. REISCHL: The lady to the north that was most affected was
objecting to that. That was also my variance.
COMMISSIONER BRANDT: Okay. Thanks for refreshing my
faulty memory as sometimes it is. Thank you.
CHAIRMAN CARTER: However, what I'm hearing is that you
could put the screen right up behind the pool. Now, you can't walk
behind it. What difficulties does that cause?
MR. HOUSER: Mainly for trying to clean the pool. It's
necessary to walk around the pool to clean it.
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October 1 O, 2000
COMMISSIONER MAC'KIE: It seems like we've had that before
though where we've had the screen enclosure come right up to the
edge of the pool. Do I not remember that correctly? I -- I thought
we had done that before.
MR. REISCHL: I don't recall one, but I'm sure there have been.
COMMISSIONER BERRY: From a practical standpoint, it
doesn't make a lot of sense because you do have to get around and
you've got the clean that pool.
And from the location of where the aggrieved party is, probably
any one of us can go out in the backs of our properties and look in
any given direction and find a concern, whether it's encroached or
not.
Now, I don't like these encroachments. I haven't liked it since I've
sat on the Board of County Commissioners to have to come in and
issue these variances. I don't like to do it, but I'm not sure who
suffers here in this whole process.
I certainly don't want this to become precedent in Collier County,
that contractors do this and then come in and say, oh, well, we'll go
to the Board of County Commissioners and we'll soften them up a
little bit and we'll bring out case and--
COMMISSIONER MAC'KIE: We did one.
COMMISSIONER BERRY: -- and then, you know, we'll kind of
get everybody going here and then, you know, if this happens again
it's no big deal.
This is a serious situation because we've got rules and obviously
there's rules for a reason and all those kinds of things, but I'm afraid
that the homeowner in this case is the person that's going to end up
suffering because, number one, unless they've got some kind of a
pool genie or something that floats around in that pool or even the
fact you may want to walk around and sweep things off and what
have you, they're not going to have that.
And, so, for three feet, I mean, I'm not saying that that's not
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October 10, 2000
important and I don't want that to say -- be on the record that we
don't care about three feet. We do.
But in this case, and you're so far down the line already, I'm not
sure that there's any -- anything -- I would be more concerned if there
was someone directly behind or even on the direct side of this
individual that felt that their view was being blocked, but I don't
think that's the case. This is a person across the lake.
CHAIRMAN CARTER: Commissioner Brandt.
COMMISSIONER BRANDT: Commissioner Berry, I have the
very same concern that you have, and while I was -- and I think it's
appropriate that I do this.
While I was on the Marco Island City Council, there were many
issues of this sort that came forward, and it was very upsetting and it
seemed like that -- I don't go there, but we had a number of after the
fact things that would come before that council.
We have them here. We've had them before since I've been on
this commission. And it's a concern that I have. I do not condone a
builder doing something and -- and I -- I'm sure they don't do it with
the thought, well, we can get away with anything we can get away
with, but I don't want to make it easy for them to come back at a later
time and say, well, we -- we goofed again and we want another
reprieve.
And, granted, Mr. Houser has not had a previous kind of a
variance that has caused a problem and -- and unfortunately the
out-of-state architect didn't do a very good job for him and
unfortunately he had his medical problem, but I don't know how you
can excuse these kinds of things.
The word gets around after awhile and we can -- we can violate
almost anything as long as you say, Commissioner Berry, sweeten up
the board and we can get away with it.
COMMISSIONER BERRY: Mr. Chairman?
COMMISSIONER BRANDT: But that's just a comment.
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October 10, 2000
COMMISSIONER BERRY: Mr. Chairman?
CHAIRMAN CARTER: Commissioner Berry.
COMMISSIONER BERRY: I think one thing, with the amount
of building that we have in Collier County and we will acknowledge
the fact that we have a lot of construction in Collier County. We do
see a proliferation of these kinds of things.
COMMISSIONER BRANDT: That's true.
COMMISSIONER BERRY: Do they happen from time to time?
Yes, they do, and they will continue to happen long after we're gone,
David, and for years to come there will be situations where these will
come before the Board of County Commissioners.
I think we've been fortunate and I think for the most part that the
contractors are very responsible in their buildings and the things that
they do in Collier County. Sometimes there are slipups and
sometimes we've been pretty tough on what we've said and what our
expectation is and what they've had to do to make it right.
I don't know. As I said again, I -- I didn't have any contact with
this petitioner or the person who is aggrieved by this situation, but if
you'll close the public hearing, Mr. Chairman, I'll make a motion.
CHAIRMAN CARTER: Okay. And part of that though, Mr.
Mulhere, do you have any comments? MR. MULHERE: No.
CHAIRMAN CARTER: Okay. Close the public hearing.
COMMISSIONER BERRY: I will make a motion that we go
ahead and grant this variance.
COMMISSIONER MAC'KIE: Second.
CHAIRMAN CARTER: All in favor, signify by saying aye.
Opposed by the same sign.
Motion carries four oh.
MR. HOUSER: Thank you.
CHAIRMAN CARTER: I think I heard a couple of things here
though. One, staff said that they had make an internal move now to
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October 1 O, 2000
better flag these situations.
MR. MULHERE: For the record, Bob Mulhere.
Correct. Two things I want to bring to your attention. We will --
we do require that the spot survey not only show the slab but also the
pool location, which I think will help us.
And the second thing is I -- I run a report monthly that shows the
number of variances that come in after the fact and -- and before the
fact variances and the numbers have actually decreased over the last
couple of years and I'd be happy to share that report with you.
CHAIRMAN CARTER: I think that's good. And also, do we
flag them if this was a variance given to this builder? I'd like to
know in the future whether I'm here or ten years from now he come
back in and says, you know, I've got another one, I've got another
one.
I don't know if there's been any habitual people coming in front of
us. I don't think so, but I would sure like to keep that in the record so
that we can flag that.
MR. MULHERE: Yes, we'll do that. We did do a report about a
year ago. We didn't see any evidence. There was one or two over a
ten-year period that came in twice. We didn't see any evidence of
any habitual offenders but we can do that exercise again and take a
look and keep that up.
CHAIRMAN CARTER: Well, just as long as the commissioners
always know and it becomes part of the process when it goes to the
planning council and it comes to us that we've got someone in there
that's, frankly, sloppy then I'm not going to have any empathy for it.
This situation, small business owner, personal situation, what he
was trying to do, I have empathy for that and in that situation. That's
the only reason I supported this after hearing it today. Because my
initial inclination was we've got to stop it and how we're going to --
MR. MULHERE: We'll make that -- I'm sorry. We'll make that
part of our evaluation each time, and if there is an issue of-- of some
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October 10, 2000
sort of a number of occurrences with the same person, we'll bring
that to the board's attention and the planning commission.
CHAIRMAN CARTER: All right. Thank you.
All right. That, I think, is the end of our public hearings.
Item #14A
SOLID WASTE WORKSHOP TO BE HELD IN DECEMBER
WHEN NEW COMMISSION IS SEATED
Communications. Staff?.
MR. OLLIFF: I've got two items, Mr. Chairman. One is the
board had previously directed that the staff bring back some
alternative technologies on the solid waste proposal sometime during
the month of October.
We provided to you a memo yesterday indicating that just timing
wise the best that we think we can do would be November at this
point. But I would like to recommend to the board, frankly, that we
are proposing a full blown solid waste workshop once the new
commission is seated, and because there are just a number of issues
that deal with solid waste that are -- that not only include those
technologies in terms of disposal, but there's collection issues, there's
current volume capacity issues, and rather than breaking that out
separately, my proposal is that we include all of that into a single
solid waste workshop and hold that sometime in the month of
December.
And if you -- if the board would concur with that, we can go
ahead and at least let some of those other firms know that.
The other reason I'm recommending that is --
CHAIRMAN CARTER: I see two people nodding. They want to
get out of that one.
COMMISSIONER BERRY: This board number concurs with
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October 1 O, 2000
that.
MR. OLLIFF: The other reason I'm recommending that, frankly,
is that district where the landfill resides currently doesn't have
representation on the board.
COMMISSIONER BERRY: Excuse me. Wait a minute. That's
not true. Where the current landfill resides --
MR. OLLIFF: I'm sorry. You're correct.
COMMISSIONER BERRY: -- is in my district and where it
might be proposed to be moved to would be in --
MR. OLLIFF: Yeah, it's also in your district.
COMMISSIONER BERRY: -- my district. So, let's -- let's get
that clear because commissioner -- former Commissioner
Constantine always claimed that he had the rights on the landfill but
MR. OLLIFF: You're right.
COMMISSIONER BERRY: -- sorry.
MR. OLLIFF: One of the -- one of the commission districts that
is at least affected --
COMMISSIONER BERRY: That's correct.
MR. OLLIFF: -- by the current location of the landfill, it doesn't
have representation.
COMMISSIONER BERRY: That's true.
MR. OLLIFF: And I think for that reason as well as everything
else I stated, I would just like to go ahead and then get some
direction from the board postpone that until the workshop.
COMMISSIONER MAC'KIE: Comprehensive look is better.
COMMISSIONER BRANDT: I agree.
CHAIRMAN CARTER: I would agree.
COMMISSIONER BERRY: I think that's fair.
CHAIRMAN CARTER: That's sufficient direction.
I also would like to compliment Ed Finn and John Wong, both of
who I have listened to make presentations to various groups in the
Page 1 O0
October 10, 2000
community on currently what is being done and they do a excellent
job and if anyone out there wants them for a homeowners meeting or
another group, you're looking for a couple of good speakers, they
will come in and they will honestly deal with the issue as it is today.
They can't give you the future but they're going to tell you what
the existing landfill is like and what they've done to correct the
problems of working on correcting the problems. They do an
excellent job.
MR. OLLIFF: Thank you for that.
The other item that I had for you is we recently had at DEP's
request a joint meeting with some of the staff members from the City
of Naples regarding a proposed County ASR well.
One of the things that came from that meeting was a request for a
joint meeting between the county and the city to discuss the county's
proposed well and I wanted to at least just bring that up for the
board's consideration to see whether or not you wanted us to try and
put that together.
COMMISSIONER MAC'KIE: My thoughts on that, and I was at
that meeting, I learned a lot at that meeting because we had a
counterpoint from our expert. The city has hired an expert who
provided additional information.
As I understood it that, Tom, at the end of meeting the two experts
are going to exchange a list of questions and answers that perhaps
would resolve the -- the item.
My thought was that we'd get the answers to those questions
presented to city council and then see where we all are and maybe we
need to meet at that point if we haven't all gotten on the same sheet.
CHAIRMAN CARTER: It makes a lot of sense to me. If that's
the pleasure of the board, I think we ought to take that step and gets
those exchanges and we get a chance to read those exchanges.
By the way, there are web sites from the listening audience on
ASR wells. If you want to go visit those web sites you can become
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October 10, 2000
really informed about them, which I've been trying to do likewise as
we go through this, and I think we ought to wait and see what comes
up and quote the experts.
MR. OLLIFF: That's fine.
CHAIRMAN CARTER: Okay. Any -- Mr. Weigel, do you have
anything for us?
Item #14B
ROCKS ON THE BEACH WILL BE DISCUSSED AS REGULAR
AGFNDA ITFJM ON OCTOFIFR 24_ 2000
MR. WEIGEL: Just to mention that the rocks on the beach case,
Collier County versus Coastal Engineering -- Coastal Engineering
Consultants and T. L. James and Company, et al., my intention is to
bring that back as an agenda -- regular agenda item on the 24th if at
all possible coordinating with our outside counsel.
CHAIRMAN CARTER: That will be an update?
MR. WEIGEL: It will be an update and a request, at least, of a
fiscal nature regarding budget, a potential budget amendment for
outside counsel as we proceed to trial.
CHAIRMAN CARTER: Will that require any strategic direction
from us in terms of--
MR. WEIGEL: I think not.
CHAIRMAN CARTER: As long as that's not a part of it. I don't
have a problem with an update or a fiscal request, but if we have to
get into strategies, then I'm going to be right back where I am, where
we're going in a few minutes.
COMMISSIONER BERRY: Rightfully so.
CHAIRMAN CARTER: Rightfully so.
COMMISSIONER BERRY: Absolutely.
CHAIRMAN CARTER: I just want to clearly separate the
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October 10, 2000
difference at least. MR. WEIGEL:
CHAIRMAN CARTER: Okay.
communications?
Let's go to the board.
Commissioner Berry.
I appreciate that. Thank you.
Any other staff
COMMISSIONER BERRY: I have nothing, sir.
CHAIRMAN CARTER: Commissioner Brandt.
COMMISSIONER BRANDT: I do have. It will be short.
One of the things that I've been concerned about since I've been
on the commission and listened to the developer presentations with
regard to the various PUD's and read comments from the
transportation side of the house with regard to interconnection to
local streets, and I -- I mentioned to Mr. Olliff that I had sat in on one
of the Dover Coal presentations and only one, but I'm concerned
about community character and county character, and it appears to
me that in some instances the developers are particularly concerned
about their gated communities and not particularly concerned about
the overall traffic conditions in the county.
Our staff over time has put together a proposal on north-south and
east-west traffic ways, and some of those will have some
infringement on PUD's that haven't come forward yet and some that
are already in existence.
We -- there is a county policy, 9.3, in the transportation element
of the comprehensive plan, and that one is -- is a very short, one
sentence statement that says, the county shall encourage, and I
express the word, encourage, the county shall encourage the
interconnection of local streets between developments to facilitate
the convenient movement throughout the local road network unless
such action will promote through traffic.
It is my intent to, at the next meeting, bring an action item
requesting that the staff take a look at -- at what I perceive to be true,
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October 10, 2000
and it may not be. That's the reason I want to have some more
interaction with the staff, but certainly to take another look at this
policy and see if we need to make that word encourage a little
stronger and be more concerned about the citizens within the county
and the rights that those citizens have as compared to others who
don't have that same interest that we up here have.
So, with that, I will bring that forward at the next meeting.
CHAIRMAN CARTER: Okay. I think that's a point well taken
because we have limited arterials east and west and north and south
in this county.
And as this commissioner and my record, vote on the record as far
as I'm concerned is that we have to make sure that we take care of
those arterials as they're laid down in the plan and that we then begin
to fold everything else in around those arterials and I don't think
community character and transportation have to be in conflict, but
there does have to be a meeting of the minds in terms of what all this
means.
And I know that Norman Peter already has saved us millions of
dollars by his aggressive action in terms of getting us to six-lane
Livingston. He's also got some thoughts on Vanderbilt Extension
North and I don't want to interfere with the limited arterials that we
have so that we can maximize those coming to your point.
The bottom line is I don't want PUD's and development driving
our plans. We have to get better in our plans so that we -- and I've
spoken with Tom Olliff yesterday about this -- is that we need to
begin to revisit that whole length of time that we allow PUD's to sit
out there before they have to come back to us. And that may get us
into a workshop thing with the new board, but I think the public
needs to understand that we are not going to sleep on our rights here
and that we are going to take aggressive action to make sure that we
can implement and we have the political will to implement the plans
in Collier County.
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October 1 O, 2000
And we're not going to be held hostage, if you please, by a bunch
of hunters, PUD's out there that are lurking to come back and haunt
us all the time. We've got to tighten it up and we've got to do a better
job and assure the public that that's what we're going to do and I look
forward to your comments at the next meeting.
COMMISSIONER BRANDT: Thank you.
CHAIRMAN CARTER: Commissioner Mac'Kie.
COMMISSIONER MAC'KIE: My only question had to do with
-- you mentioned, Mr. Weigel, about Coastal Engineering and that
law suit and the question I'd asked sometime ago about whether or
not we can continue to employ that firm, and I think that we do
continue to employ that firm in several -- in several ways in relation
to the lawsuit that we've filed against them and that troubles me.
I wonder if the board wants to adopt some kind of a policy that we
don't continue to employ a firm that we are currently in litigation
with, at least in regard to the subject of the litigation. I mean, they're
continuing to do beach work as we are suing them over the beach
work.
Am I right about that?
MR. WEIGEL: You are and in fact Mike McNees on behalf of
the County Administrator's office and I had this discussion. He'd
raised the question several weeks ago and my response to him was,
clearly, open no new contracts. We're talking about Coastal
Engineering, Inc.
When you first started, I thought, oh, the law firm. No. It's
Coastal Engineering, Inc. And we do have some contracts with
them. My recommendation was open no new ones, observe,
administer very carefully, and I presume it's already being done.
Those contracts or work orders that we already have them, if there
is breach or violation, we will utilize that which the contract terms
provide to redress those issues.
And in regard to unilateral termination for convenience, that is an
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October 10, 2000
option. I've not explored that on individual contracts that we have
with them.
Depending to some degree on we call it the sophistication and
record of performance that they have, it can be somewhat
problematic. We'll chop them off on other matters that are unrelated
to the kind of performance that we may have and do have with the
matter in litigation.
Nothing new is being contemplated. That's been my
recommendation and I believe that's been -- what's been implemented
with the county.
CHAIRMAN CARTER: Do we have -- do we have current
contracts that relate to the beach with them where we have exit
opportunities where we might cease and desist? MR. WEIGEL: I believe that we do.
COMMISSIONER MAC'KIE: Because we have them -- am I
right? I think that they are currently monitoring the beach project
that we are suing them over. And it seems to me that in one case that
could hurt our litigation posture, if we continue to employ them to
monitor the work that we are asserting is deficient. It just seems kind
of illogical and then whether or not it affects our litigation posture, it
just sounds dumb.
CHAIRMAN CARTER: Could we have an update by the next
board meeting and what our options are under that? Would that be
suitable to you--
COMMISSIONER MAC'KIE: Yes.
CHAIRMAN CARTER: -- Commissioner Mac'Kie, and so that
we've got--
COMMISSIONER BERRY: Our contractual obligations. I
mean, I think we need to know. If we have a contract, we need to
make sure that we follow that to the letter.
MR. WEIGEL: Fine. I'll provide you a memo prior to the board
and then be prepared at the board meeting.
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October 10, 2000
CHAIRMAN CARTER: Sounds good.
COMMISSIONER MAC'KIE: That's all I have.
CHAIRMAN CARTER: All right. Miss Filson, may we be
excused?
MS. FILSON: You may.
COMMISSIONER MAC'KIE: Are we going to adjourn to --
where do we go now; to the board room?
CHAIRMAN CARTER: Adjourn to the board room at 12:45.
Give you 1 $ minutes to powder your nose.
MR. WEIGEL: I'd like to have a letter read into the record at this
point.
CHAIRMAN CARTER: Okay. We've got to reopen this thing.
We're back in session..
MR. WEIGEL: You have a sheet to read into the record there to
some extent?
CHAIRMAN CARTER: I don't know. I probably buried it up
here.
MR. WEIGEL: Okay.
COMMISSIONER BERRY: Yeah, we do.
COMMISSIONER MAC'KIE: I buried mine. I'm sorry.
COMMISSIONER BERRY: Here, Jim.
CHAIRMAN CARTER: Thank you. Thank you, Commissioner
Berry.
MR. WEIGEL: Just start one, two, three.
CHAIRMAN CARTER: Now, what part of this would you like
me to read, Mr. Weigel?
MR. WEIGEL: Thank you. Number one says, read the entirety
to the agenda item, which is --
CHAIRMAN CARTER: Yeah, I can do that.
MR. WEIGEL: -- above there into the record.
CHAIRMAN CARTER: All right. Regards to the Agenda Item
Number 9(a), closed County Attorney session of the settlement
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October 10, 2000
negotiations and/or strategy related to litigation expenditures of the
pending litigation case of Popp versus Collier County, Case Number
99-3286-CA, pending into the Twentieth Judicial Ci~'cuit in and for
Collier County, Florida.
Persons in attendance will be the Board of County
Commissioners, Country Manager, Thomas W. Olliff, County
Attorney, David C. Weigel, Assistant County Attorney, Michael W.
Petit.
Parentheses, this session will commence -- well, we're going to do
it 12:45 p.m.
MR. WEIGEL: Okay. Number two.
CHAIRMAN CARTER: Number two. I'm announcing to the
board, any attending person shall be in closed session for Item 9(a) in
the board's conference room, explain that this is a closed session and
it is estimated to last 15 to 30 minutes after its commencement.
MR. WEIGEL: Okay. I will add -- I will add at this --
CHAIRMAN CARTER: The next thing it says we move to the
board room.
MR. WEIGEL: Right. I will add at this point then -- the rest of
the instruction comes later, but I will add at this point that for the
record that these discussions are limited.
We're talking about -- they apply only to discussions rather than
final action of the board-- and it-- in which the governmental entity,
in this case, the board, is seeking advice on settlement negotiations or
strategy relating to litigation expenditures.
These meetings are not used -- shall not be used to finalize action
or discuss matters outside of those two narrowly prescribed areas and
as assistant at the meeting, chaired by Mr. Carter, I will be kind of
proctoring to make sure that we don't stray and get into comments
outside of those areas. It probably won't be necessary but that's part
of my role.
At this point then, we would move to the board's chambers. The
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October 10, 2000
reason we're moving to chambers is because if we remained here, we
would have to force whatever the public are that are here out into the
hallway and with the PA system, et cetera, we might not get the
closed session that we're looking to have.
So, again, the court reporter records everything. That will be
promptly transcribed and provided to the Clerk of Court and held
until the conclusion of the litigation. At this point we can move.
CHAIRMAN CARTER: Okay. Thank you. We stand adjourned.
(Closed session in the board room.)
Page 109
Maureen A. Ken¥0n
From: Michael Petit
Sent: Friday, March 08, 2002 8:35 AM
To: Maureen A. Kenyon
Cc: David Weigel
Subject: Popp
The Popp case has concluded. Therefore, you may unseal the transcript of the
BCC executive session.
Item #9A
October 10, 2000
CLOSED ATTORNEY-CLIENT SESSION FOR DISCUSSION OF
SETTLEMENT NEGOTIATIONS AND/OR STRATEGY
RELATED TO LITIGATION EXPENDITURES OF THE
PENDING LITIGATION CASE OF POPP V. COLLIER COUNTY,
CASE NO. 99-3286-CA, PENDING IN THE TWENTIETH
JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY,
FIJORIDA
CHAIRMAN CARTER: Okay. I believe we're officially in session.
County Attorney, David Weigel, you are the one that's going to lead
us through this process.
And for the record, do we have to establish everyone, to establish
who is all at this meeting?
MR. WEIGEL: That's right. Yes. We have ourselves identified
for the court reporter.
I'm David Weigel, County Attorney.
MR. PETTIT: Mike Pettit, Assistant County Attorney.
COMMISSIONER MAC'KIE: Pam Mac'Kie, County
Commissioner.
CHAIRMAN CARTER: Jim Carter, County Commissioner.
COMMISSIONER BERRY: Barbara Berry, County
Commissioner.
COMMISSIONER BRANDT: David Brandt, County
Commissioner.
MR. OLLIFF: Tom Olliff, County Manager.
MR. WEIGEL: Okay. The purpose of this closed session, as I
stated in the open meeting, is limited to discuss advice and seek
advice on settlement negotiations or strategy relating to litigation
expenditures.
We're here today for the matter identified as the case of Jeffrey
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October 1 O, 2000
Popp in Popp versus Collier County, Case Number 99-3286-CA,
pending in the Twentieth Judicial Circuit in and for Collier County.
Mr. Pettit, Assistant County Attorney, is going to discuss with the
board some of the considerations which are referenced in the
executive summary, which was Agenda Item 9(a) on the September
26th board agenda.
That agenda item of September 26th was continued over to this
date of October 10th, 2000 with the request of the chairman that it be
heard -- and the request of the County Attorney to the chairman that
it be heard in closed session.
This is pursuant to Section 286.011 Florida Statutes.
MR. PETTIT: The executive summary was brought forward
because previously the board had approved the county making a
proposal for settlement of $5,000.
We did that. And we received a response from Mr. Popp offering
a counteroffer, as it were, for $11,900.
Because of the amount and because we learned we had developed
some complicating factors, which I'll mention in a moment, we
wanted to bring this back and give the board an opportunity to
consider it.
I want to give you what -- and I'm speaking here for myself, as
well as I work typically with the Risk Management Department on
these things -- what the factors are as they developed in the case at
this point that I think would bear on whatever you might want to do
with this proposal.
The case is in its infancy in terms of mutual discovery but we
know a lot about the facts because there has been an unemployment
compensation hearing that actually lasted for a day, and numerous
people testified over telephone to a hearing examiner.
And here's the facts that I think are important for us to keep in
mind and then I'll go to the -- and then there's also some economic
issues.
Page 111
October 10, 2000
Mr. Popp was a county employee. He became involved in an
altercation with a co-employee. We believe that the facts establish
that Mr. Popp was the aggressor. He was suspended or asked not to
come back to work for a period of time while the matter was
investigated.
A decision was reached around June 15th. An oral decision was
made by the Water Department director. I'm going to recommend
that he be fired based on the information he collected about the
assault.
Sometime on the night of June 16th or possibly on June 17th
when the letter was sent to Mr. Popp telling him that the termination
recommendation was going forward, the Water Department director
received a call from the Naples Daily News asking about the acid
spill.
Just by way of background, Mr. Popp is actually the individual
who caused the acid spill back in March. He wasn't to my
knowledge disciplined for that, but obviously he was aware that it
had occurred. Mr. Popp was terminated. He was offered a hearing
like any county employee is before the county manager's designee.
He waived that hearing on advice of counsel. He then switched
lawyers, filed a lawsuit. He sued the county and he sued three
individuals who were, he believes, involved in his termination, the
former public works administrator, Ed Ilschner.
He sued the Water Department director, Paul Matosh and he sued
a fellow employee named Randy Garay.
Just another complicating factor in the case, Mr. Garay has been
charged criminally for actions related to the acid spill and that -- that
proceeding is ongoing.
One of the factors we have to take into account as we think about
the case is that at this point in time Mr. Garay pursuant to the advice
of counsel is going to say if deposed or called to the stand in a civil
trial, that he can't answer questions under the Fifth Amendment right,
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October 1 O, 2000
which is troublesome because in civil litigation, generally that allows
a jury to infer that he's admitting something. It's not like criminal
litigation where it can't be used against you.
Mr. Garay's role in the termination, I think he did some of the
investigation or assisted the Water Department director in collecting
facts, but I don't know this because of the problem with the criminal
charge. I haven't been able to sit down with he and his attorney and
to talk to him.
When he was called in to testify at the unemployment hearing he
took the Fifth. So, the -- we don't know what he will say about the
circumstances of the discharge or the fight, nor anything else. He
wasn't a witness to the fight.
There were two witnesses to the fight. One witness is -- appears
to be very neutral and gives a very strong statement that would
justify what the county did.
There's a second witness who had a personal relationship with Mr.
Popp, who says I didn't actually see the fight, but it really wasn't
much of a fight, and they were yelling at each -- both yelling at each
other, using profanities, and I don't really think anybody was hurt,
and he goes on and on.
He's given several statements, some of which are contradictory
and he gave a statement to county staff and later gave a statement to
Mr. Popp's lawyer. They're contradictory. We use that kind of
effectively in the unemployment area, which is why I filed almost
miraculously the unemployment hearing and the referee said no
unemployment.
It's typically -- and I don't want to spend too much time on a side
issue but typically in an unemployment case, you have to show
misconduct and there are cases that say if you were not the aggressor
or even if you were, if you were provoked in a certain way, and it's
the first time, it's not sufficient to deny you unemployment.
So, anyway--
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October 10, 2000
COMMISSIONER MAC'KIE: I'm sorry, but the outcome of that
case was that the unemployment was denied.
MR. PETTIT: Was denied up to this point and there's an appeal
pending to the actual commission now. It's gone through two stages.
It's been denied twice. It's now in another appeal.
Where we are today is that for reasons that I'm not clear on, Mr.
Popp's attorney dismissed the three individuals that were sued civilly
for whom we were paying for counsel.
He has a right to bring them back into the case. His thought
process was that I think we're going to get this settled when we made
the $5,000 offer and he came back with the 11,900 and I'll dismiss
them but I'll bring them -- I'll hold them in my back pocket and bring
them back.
I think you need to understand, I think a key factor in evaluating
this is that Mr. Popp was in Tennessee and his attorney got married
and moved to Virginia, which creates some issues for them
prosecuting a lawsuit in Collier County. Mr. Popp works in
Tennessee now.
I bring that up because if the county -- if the board at some point
decides in the open section to reject the 11,900 proposal and Mr.
Popp's attomey is good to his word and resues these individuals, our
attorney fee meter will begin to tick again for those three individuals.
And that's where there's -- I felt that we needed to bring this to the
board's attention because there could be some significant expense
here. It's not just my time and our staff's time. It's going to be
paying attorney's fees and if it actually would go through a trial, and
I will tell you this is not a case that -- probably something will
survive a Motion for Summary Judgment, because we're in state
court and there's a different set of procedures in state court for
summary judgment, so something will survive.
So, if everybody stays in through the whole trial, we'll have some
substantial attorney's fees to those attomeys.
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October 10, 2000
There is a -- some of the claims that Mr. Popp has brought would
allow him to collect attorney's fees if he's successful, and also if he
collects more money than $11,900, I believe beyond a certain
percentage, I think it's 25 percent in excess of that, he would also get
attorney's fees from the time in which the county rejected this
proposal forward.
So, he has some possibilities of achieving some substantial fees.
Now, I have talked to -- I have not yet done this. It's probably
going be an interesting exercise. I have not talked to the Naples
Daily News yet about when Mr. Popp began contacting them and so
on, because his argument is this was all a setup. I was fired not
because of this fight with this employee. I was fired because
everybody knew I was talking to the Department of Environmental
Protection and talking to the Division of Labor and Safety and
talking to the Naples Daily News.
To date, the Department of Environmental Protection told me the
first contact they had with Mr. Popp was June 17th. Why is that
significant? Mr. Popp's letter of termination went out on June 17.
COMMISSIONER BERRY: Okay.
MR. PETTIT: So, at the time Mr. Matosh made a decision to fire
Mr. Popp, the evidence that I have been able to collect to date, as far
as he knew nothing about any calls to the Department of
Environment Protection regarding the acid spill.
The Division of Labor and Safety has absolutely no record of any
calls from Mr. Popp ever. That's just to make -- explain what -- who
they are. They're kind of a -- they're a mini OSHA. They're like
OSHA for the state, for state and government entities. They have no
records of Mr. Popp contacting them
COMMISSIONER MAC'KIE: And let me get this straight about
on the 17th. What is the record of contact?
MR. PETTIT: My understanding is that Mr. Popp had a
conversation, the first -- the first record of any conversation with the
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October 10, 2000
Department of Environmental Protection is June 17th. That's what
their public relations person told me.
Now, I haven't deposed her. I haven't gone up -- she did send me
the records that she had.
COMMISSIONER BERRY: But that -- coincidentally, that was
the day that he received --
MR. PETTIT: That was the day the letter went out saying he was
terminated. And the investigation that a fight had been going on for
several weeks up to that point.
COMMISSIONER MAC'KIE: What was the date of the fight?
MR. PETTIT: Around June 6th and 7th.
CHAIRMAN CARTER: And the date of the acid spill?
MR. PETTIT: March 7th, I think, somewhere in there.
CHAIRMAN CARTER: And he was the supervisor at that time?
MR. PETTIT: No. He was just on duty, and he was an operator
of some kind. And he was on duty and he mined on the spigot to let
the acid flow and he went away to lunch and forgot about it.
CHAIRMAN CARTER: How did this other gentleman, Garay,
get involved in this?
MR. PETTIT: He was a superintendent, I believe, at the plant at
that point in time and he was the one who took whatever steps were
taken to try to fix the spill that day over that period.
COMMISSIONER MAC'KIE: Do the witnesses say what was the
nature of the argument when the two were fighting? MR. PETTIT: Well, it's interesting.
COMMISSIONER MAC'KIE: I guess my question is, do they
say it had to do with the acid spill and whether or not you're
reporting us and --
MR. PETTIT: The witnesses say the -- the two -- the one witness
says that the -- the dispute had to do -- well, the person who was
assaulted and the one neutral witness indicated that the dispute had to
do with the person who was assaulted complaining that Mr. Popp was
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October 10, 2000
leaving his shift early. COMMISSIONER MAC'KIE: Okay.
MR. PETTIT: Mr. Popp says he walked into the room where they
were located and this man he assaulted -- and he pled no contest to
the assault, by the way. That's not admissible in court but it tells us
something.
He claims that he walked in and this man started yelling you're
narcing us all out to the DEP and using a stream of profanities so
that's why he attacked.
Mr. Popp's other witness, who also was there in the fight, has
signed a statement, which I think can be most fairly read to say that
the fight was over Popp turning him in for going out, you know,
leaving the shift or that Popp was upset because this guy had turned
him in for leaving the shift early.
Are there warts on the county's case? I'm sure there -- there
always are. I mean, there's always something that either side can
find, that the man who was assaulted had had prior discipline.
Somebody's going to come in and say that, you know, he once
came to the plant and made some threats to some people, not other
county employees but was making threats that he was going to do
things to other people off campus.
It's interesting. Mr. Popp is around six two, two twenty. The man
assaulted is five seven, five eight, one seventy. I think that had a lot
to do with the unemployment compensation outcome.
MR. OLLIFF: So, Mike, viewing everything, would you explain
to us what your recommendation is?
MR. PETTIT: Well, my feeling on this thing at this point is that
-- and you need to understand the complicating factor. My hope was
that we could have settled this by saying we will quit fighting you
over your unemployment and we will give you another 1500 or
$2,000, which would have given Popp around $8500.
And the unemployment commission won't allow us to do that.
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October 10, 2000
They say it's out of your hands now once we made our determination
like this.
So, my recommendation, based on my understanding of the facts
at this point, is to stick with our initial proposal of $5,000 and let him
fight for his unemployment and we'll respond to it and one of us will
lose and if he gets it, great, and if he doesn't get it, great. I mean --
but we would only pay him $5,000 out of our pocket.
CHAIRMAN CARTER: What happens to the other three cases?
MR. PETTIT: Well, the risk is -- I will tell you the risk on
liability here without having undergone through full discovery in my
opinion is relatively low.
COMMISSIONER BRANDT: Why?
MR. PETTIT: Because of the reasons I've stated. The witnesses
that I have talked to are not telling me that this fight had anything to
do with DP, only Mr. Popp is saying that. And DP is confirming that
they didn't become aware of-- they have nothing to show that
anybody had made any calls to them about this until June 17th,
which is 11 days or 12 -- or ten or 11 days after the fight depending
on whether it was the 6th or 7th.
COMMISSIONER BRANDT: And coincident with the day of
discharge.
MR. PETTIT: And coincident with the day of discharge.
COMMISSIONER BERRY: Uh-huh.
MR. PETTIT: The negatives are the cost of paying the attorneys
and the fact that we have at least one employee, who I think is a
significant witness, who right now is not in a position to talk.
Now, that -- his criminal situation may be completely over at
some point down the road before the civil litigation is at trial stage.
CHAIRMAN CARTER: Or if Mr. Popp might except $5,000 and
go away.
MR. PETTIT: That's been out -- that's put out there and, you
know, he was quoted in the paper as saying it was a pathetic offer,
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October 10, 2000
which is pretty-- that's the way he talks.
So, I mean my -- my view is we made that offer in part to put
some pressure on Mr. Popp to think about the fact that he could be
held liable for fees if we have to go all the way through this and get a
zero on the verdict.
CHAIRMAN CARTER: What would happen if we said he's got
30 days to make up his mind and we withdraw giving him anything?
MR. PETTIT: Well, that's certainly something we can do.
COMMISSIONER MAC'KIE: I have another question.
MR. PETTIT: In fact, by terms of the law, and I have to go back
and look at it, I think the offer is technically withdrawn at this point,
because I think you have to accept it in 30 days or it's off the table.
Most attorneys and most will take the position we'll not going to fight
over that. If it's out there, it's out there. But I think we could make
that statement. It's possible -- it's a choice we have.
COMMISSIONER MAC'KIE: Do I understand that we need to
be careful in this group, in this closed session not to indicate how we
might be leaning or--
MR. WEIGEL: That's exactly right.
MR. PETTIT: That's right.
MR. WEIGEL: We're not looking to draw out consensus. It's
information.
CHAIRMAN CARTER: We present that as a strategy, one of the
strategies that we could withdraw what's on the table and not offer
anything.
MR. PETTIT: That's right.
And I brought this 11,900 in here primarily because the dollars
are low enough that there may be a business decision to be made. I
usually don't say this. In fact, I'm probably -- I probably often will
advocate if you can get the dollars down, settle it because it's --
there's always risk and it gives you certainty.
I will say this is a case where he assaulted a fellow employee and
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October 10, 2000
I'm pretty firmly convinced of that.
COMMISSIONER BRANDT: Then -- then --
MR., PETTIT: And that's troublesome.
COMMISSIONER BRANDT: Then help me with the 11,900
again.
MR. OLLIFF: That's his counteroffer.
MR. PETTIT: That's his counteroffer to our offer of $5,000. And
one of the problems with that offer--
COMMISSIONER BRANDT: Our offer of $5,000 is off the table
now because of time?
MR. PETTIT: I think it is. I'd have to go back and look at the
statute.
COMMISSIONER BRANDT: So, do we have to reopen
something?
MR. PETTIT: I think-- I think if he comes back later and says he
would accept the five, I mean you're free to -- I have to look at the
statute to be honest with you.
MR. WEIGEL: Mike, the eleven nine figure was offered by him
after our five figure; is that correct? MR. PETTIT: Correct.
MR. WEIGEL: There is an argument that --
MR. PETTIT: It's open because of that.
MR. WEIGEL: That the five is no longer viable because --
COMMISSIONER BRANDT: He's rejected it, in fact.
COMMISSIONER MAC'KIE: Right.
MR. WEIGEL: So, my thought would be that the best -- if the
board were to entertain a figure, whether it's $5,000 or any figure,
that that be another action to be taken at open session.
COMMISSIONER BRANDT: Okay.
CHAIRMAN CARTER: The other thing is though even if we
accept the eleven nine, he still could come back with the other cases
against him.
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October 10, 2000
MR. PETTIT: Yeah. Well, if we accept the eleven nine, it ends
the cases against everybody.
MR. WEIGEL: But, Mike, there's the workmen compensation
claim.
MR. PETTIT: Yeah. Let me clarify the unemployment claim.
He neither -- Popp, nor the county, have any control over that. It's
now often off into their system and their view is we have a referee's
determination. Somebody appealed it and if you guys don't want to
file briefs, that's your choice, but we could come up with any
decision. We're going to look at the record and we may reverse the
referee or we may affirm him.
COMMISSIONER BERRY: What's the most dollar amount they
can come up with?
MR. PETTIT: That's what I wanted to get to. The eleven nine
could theoretically could be eighteen nine because the unemployment
is between 6200 and seven. I calculated more than the 6200 range,
but in that range, if-- if for some reason we settle and the
unemployment just goes forward, and he files his brief and we have
to respond and we lose, he gets that money at some later point,
because what I -- I have -- my legal opinion is that -- that we are
unable to settle that claim. In fact, it's -- it's a misdemeanor to try to
force somebody to waive an unemployment claim.
CHAIRMAN CARTER: So, that will follow and that's been
denied twice.
MR. PETTIT: That's been denied twice.
CHAIRMAN CARTER: Now he goes --
MR. PETTIT: Now he goes to the unemployment appeals
commission and has a full hearing there. And then it can be appealed
again to a court.
COMMISSIONER BERRY: Do we take anything that -- what do
you want at this time other than you're just informing us of this?
MR. PETTIT: I want to inform you and I want to make you
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October 10, 2000
aware of the eleven nine and also make you aware that there are
some -- there is some -- there's always risk in litigation.
There is the factor that depending on what he's allowed to put into
evidence, obviously some of this acid spill will all be rehashed again
at some point in time. And we do have the problem of the one
county employee who we're defending in the civil suit who's been
charged criminally.
Now, what the outcome of his criminal charge will be, we don't
know. In fact, one of the charges was dismissed.
COMMISSIONER BRANDT: Charged criminally by who?
MR. PETTIT: He was charged by the state and for -- as I recall,
one was a dumping charge and dumping and littering charge, and the
other was the release of dangerous substances, and I think that
second charge has actually been dismissed.
CHAIRMAN CARTER: What is the time line for the appeals
board to hear his workmen comp. Not workmen comp, but
unemployment.
MR. PETTIT: His appeal brief is going to be due sometime over
the next couple of weeks and then we'll have 20 days, I think, to
respond.
CHAIRMAN CARTER: So, what if we went back and gave the
same -- the same offer with some time line that says we're going to
withdraw that, you know, if you don't accept it in 60 days, which
would take it through this other thing. We'll know where he is with
the unemployment thing and he'll know where our issue is, and then
he would have to make a determination.
MR. PETTIT: That's -- you know, I mean I -- I -- we have
discussed -- I've discussed this with the risk manager and words of
the opinion that it's -- we can't recommend. We need to apprise you
that there's some economic risk because of the attorneys and there's
always a potential of losing and all of that, but we can't recommend
spending more county money to give this individual the $5,000. And
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October 10, 2000
that was done as a token go away and don't bother us settlement
proposal to be honest.
CHAIRMAN CARTER: Now, to make that recommendation
back to you, we have to do that in public or can we do that here?
MR. PETTIT: I think that has to be done in public.
CHAIRMAN CARTER: So, you can bring it back and
strategically we say we recommend that you offer him $5,000, good
for 60 days, then we withdraw our offer and then that would be
appropriate protocol.
MR. PETTIT: And leaves the unemployment. That
unemployment hearing is left hanging. I mean one of us is going to
win it at some point.
CHAIRMAN CARTER: Well, right. We don't know when that's
going to go and it's out of our hands. MR. PETTIT: Right.
COMMISSIONER BERRY: So, we know what we need to
know?
MR. PETTIT: I can't think of anything else.
CHAIRMAN CARTER: When will you bring this back to us,
David?
MR. WEIGEL: Well, as I mentioned, this has been actually
continued over from two weeks ago, so then we come back and open
the session now. We could conceivably have a brief discussion and
entertain a motion and the board take action right now, otherwise we
would bring it back two weeks from now.
COMMISSIONER MAC'KIE: It doesn't matter to me.
COMMISSIONER BERRY: Doesn't matter to me either.
CHAIRMAN CARTER: But we can hear -- bring it back -- you
know, make sure I understand this. We have to do that in the regular
scheduled board meeting. MR. WEIGEL: Yes.
CHAIRMAN CARTER: Okay. So, we could bring it back at the
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October 10, 2000
next board meeting.
MR. WEIGEL: It could be the next board meeting.
MR. OLLIFF: Your choices are go back out there right now.
COMMISSIONER BRANDT: But we have adjourned that
meeting. How do we reopen?
MR. WEIGEL: It will be reopened.
COMMISSIONER BRANDT: So, we were in recess, not
adjournment?
COMMISSIONER MAC'KIE: I think the public perception was
that we were gone for the day.
COMMISSIONER BERRY: I say bring it back in two weeks.
CHAIRMAN CARTER: Yeah. I think we'd be crowding the line
if we --
COMMISSIONER BRANDT: And I think it could have some
other impact on the public perception if we went back in there right
now.
MR. WEIGEL: Fine. But we still --
CHAIRMAN CARTER: Personally, I don't think it's a good
move.
MR. WEIGEL: That's fine. That's fine. It's your choice. And we
do need to under the Sunshine Law exemption that we were just
using here, go back in and we will announce the termination of this
meeting, the reopening of that meeting and then closure of that
meeting.
COMMISSIONER BERRY: Okay.
CHAIRMAN CARTER: Okay. Well, let's go back in.
COMMISSIONER BRANDT: Just say this meeting has been
terminated.
COMMISSIONER MAC'KIE: It will be in just a second.
COMMISSIONER BERRY: We've got to go back out there.
MR. WEIGEL: Mr. Carter has indicated for the record that we
are finished with our discussion, so we move back to the regular
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October 10, 2000
board meeting.
COMMISSIONER BRANDT: Okay.
(In the regular commission room.)
CHAIRMAN CARTER: We are reconvening the Board of
County Commissioners meeting this date of October 10th after being
in executive session to give staff direction in terms of the case of
Popp versus Collier County.
MR. WEIGEL: And, Mr. Chairman, if I may, as you open this
meeting right now, you will be -- you have the opportunity, in fact,
the requirement by law to place on the record the comment that the
closed session has been terminated.
CHAIRMAN CARTER: The closed session has been terminated
and we are directing the County Attorney to bring this case back to
us two weeks from today for public discussion and direction. MR. WEIGEL: Thank you very much.
The meeting -- your meeting is now reopened for any further
action or statement you may wish to make on any other agenda item
whatsoever or foreclosure of the regular meeting at this time.
COMMISSIONER MAC'KIE: I have nothing.
CHAIRMAN CARTER: I have nothing.
COMMISSIONER BRANDT: I have nothing.
COMMISSIONER BERRY: I have nothing.
Item #15A
COUNTY ATTORNEY TO PUT ON 10/24/2000 AGENDA, AN
EXECIITIVE SESSION RE THE FIERNSTEIN CASE
MR. WEIGEL: I have one request and it's a request that comes
back to you, Mr. Chairman, and that is we would request that the
chairman of the board request of the County Attorney to come back
to meet with this board in closed session, similar to what we've just
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October 10, 2000
done, in regard to the Aria Bernstein versus Collier County lawsuit,
and that will take a request from the -- from the chairman acting with
the board to the County Attorney.
We will prepare the appropriate information, agenda item public
notice, and will do so for the next meeting, October 24th, if you and
the board make that request.
COMMISSIONER MAC'KIE: I have a question.
CHAIRMAN CARTER: Question; Commissioner Mac'Kie.
COMMISSIONER MAC'KIE: I'm just trying to understand the
process here. It would seem appropriate to me or the only time that
I'm going to be supportive of a closed session is if we get a
recommendation from you, Mr. Weigel, that you have strategic items
to discuss with us that would be best served to be discussed in the
shade --
MR. WEIGEL: Yes.
COMMISSIONER MAC'KIE: -- Not if this board is asking you
to take something from the shade. I want that to come from you, not
from us.
MR. WEIGEL: Well, curiously, that's why I mentioned it's kind
of a two-way thing here. The law requires that I make the request,
but it also requires that you make the direction or approval, that I can
bring it back that way.
COMMISSIONER MAC'KIE: So, are you saying to us that
there's strategic happening in that lawsuit that we need to discuss in
private?
MR. WEIGEL: Yes. In regard to strategy and/or settlement
negotiations for the lawsuit.
CHAIRMAN CARTER: Would that be more appropriate if you
made that an agenda item for the next board meeting and then we can
give you that direction so that everybody is dutifully notified?
MR. WEIGEL: I can do that.
Mike, do you have any --
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October 10, 2000
COMMISSIONER MAC'KIE: Unless there's some timing reason
that we have to do it now. I would rather do it on an advertised
agenda.
MR. PETTIT: Let me address that. Mike Pettit for the record,
Assistant County Attorney.
We have been ordered by the Eleventh Circuit to mediate that
case and the mediation is scheduled for November 9th. I was hopeful
that it would be brought back, that we could do this on the 7th, but
Mr. Weigel let me know that there's no meeting on the 7th. And
that's why we bring it up today.
COMMISSIONER MAC'KIE: Why is there no meeting on the
7th because we met on the 24th.
MR. WEIGEL: I think we meet on the 14th and on the 28th?
COMMISSIONER BERRY: And then you meet on the 14th of
November.
COMMISSIONER MAC'KIE: Oh, that's right.
CHAIRMAN CARTER: Well, yeah. We do meet on the 24th.
We meet on October 24th and November 14th and the mediation
needs to start what; November 9.
MR. PETTIT: The mediation will be held on November 9th.
CHAIRMAN CARTER: So, if you--
MR. PETTIT: Yeah. As I think about it, perhaps we can go
forward with mediation and have that discussion on the 14th. I think
Mr. Manalich and I were hopeful to get some discussion and
direction but--
COMMISSIONER BERRY: Can't do that.
MR. PETTIT: I don't think that's a critical time period because as
I think about it now, I don't think it's a critical time period to go
forward on the 14th, although our -- I don't know how that -- if the
board would prefer that.
COMMISSIONER BERRY: Why can't you do that on the 24th?
CHAIRMAN CARTER: On the 24th of October?
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October 10, 2000
COMMISSIONER BERRY: We have a meeting on the 24th of
October.
MR. PETTIT: Well, that would be my preference. I thought you
would prefer not to do it on the 24th.
CHAIRMAN CARTER: No. Our point is rather than do it today,
we'd prefer to have it brought back on the 24th as a regular agenda
item of which we could take action.
MR. WEIGEL: I misunderstood. I thought you were telling me
to make any request to you on the 24th, so that we would come back
to the meeting after.
CHAIRMAN CARTER: No, no.
COMMISSIONER MAC'KIE: That is what I meant, but that's
okay.
CHAIRMAN CARTER: Are you comfortable, Commissioner
Mac'Kie that we add it on the agenda that it's publicly noticed that
everybody knows what we're going to do. I would feel more
comfortable that everybody knows that we're bringing that back for a
request to go into the executive session in terms of strategic
application to that case.
COMMISSIONER MAC'KIE: I don't think I think that's what
they're suggesting. I think that what they're suggesting Is that on the
agenda for the 24th, there will an advertised-- if we give direction
today, there will be an advertised public hearing. I mean, there will
be advertised on the agenda that the board is going to have a closed
session on the Bernstein case on the 24th. MR. WEIGEL: That's correct.
COMMISSIONER MAC'KIE: That's what my preference would
have been, but I guess -- I guess it's not possible it's not. Is that
under the County Attorney's agenda on the 24th, there would be
advertised a request that the County Commission direct the County
Attorney to bring a shade session on the Bernstein case?
COMMISSIONER BRANDT: I think we ought to do it on the
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October 10, 2000
24th.
COMMISSIONER BERRY: I do, too, because number one, the
agenda -- I mean, it hasn't been published yet and it will be prior to
that meeting so it's not like anybody's going to come surprised that
it's going to happen.
COMMISSIONER MAC'KIE: I can live with that.
CHAIRMAN CARTER: Okay. So, what we're really saying
we're requesting a new date. They will bring it to us on the 24th.
MR. WEIGEL: That will be just fine. You've created sufficient
records under the law right now. I appreciate that.
CHAIRMAN CARTER: Right. Do you need a motion from us?
MR. WEIGEL: That would be even better.
COMMISSIONER BRANDT: So moved.
CHAIRMAN CARTER: Do I hear a second.
COMMISSIONER BERRY: Second.
CHAIRMAN CARTER: We have a motion by Commissioner
Brandt and second by Commissioner Berry. All in favor, signify by
saying aye.
Opposed by the same sign.
Motion carries four oh.
Commissioner Mac'Kie moved, seconded by
Commissioner Brandt and carried 4/0, that the following
items under the Consent and Summary Agendas be
approved and/or adopted: *****
Item #16Al
CREEKSIDE WEST, INC., TO DELAY COMMITMENT TO
CONSTRUCT EAST/WEST ROAD IN CREEKSIDE COMMERCE
PARK UNTIL COMPLETION OF A COUNTY UTILITY
PROJECT INVOLVING THE CONSTRUCTION OF A 30-INCH
Page 129
October 10, 2000
SFJWF, R FC)RCFJMAIN
Item # 16A2
RESOLUTION 2000-346 RE PETITION VAC-00-007, MICHAEL
D. ROSEN OF ISLANDWALK DEVELOPMENT COMPANY, AS
AGENT FOR OWNER, HARVEY BROS. FARMS, INC.,
REQUESTING TO DISCLAIM, RENOUNCE AND VACATE
THE COUNTY'S AND THE PUBLIC'S INTEREST IN THE
PUBLIC ROAD RIGHT OF WAY LOCATED WITHIN THE
ISI,ANDWAI,K DEVEIJOPMF, NT
Item #16A3
RESOLUTION 2000-347 RE PETITION VAC-00-015, YOUNG,
VAN ASSENDERP, VARNADOE & ANDERSON, P.A., AS
AGENTS FOR THE PETITIONERS, WESTGROUP LA PLAYA,
LLC AND THE HALSTATT PARTNERSHIP, AS TENANTS IN
COMMON, REQUESTING THE VACATION OF A 10'
DRAINAGE EASEMENT, TO ACCOMMODATE
CONSTRUCTION OF A PARKING GARAGE AND HOTEL
EXPANSION LOCATED IN CONNER'S VANDERBILT BEACH
ESTATES. l INIT NO. 1
Item # 16A4
COMMERCIAL EXCAVATION PERMIT NO. 59.760,
"ECKHART LAKF. COMMERCIAL EXCAVATION" LOCATED
IN SECTION 5, TOWNSHIP 48 SOUTH, RANGE 28 EAST;
BOUNDED ON THE NORTH BY VACANT LOT, ON THE
SOUTH BY 52~t) AVENUE N.E. RIGHT-OF-WAY, ON THE
WEST BY VACANT LOT, AND ON THE EAST BY CANAL
Page 130
October 10, 2000
RIGHT-OF-WAY - WITH STIPI JIJATIONS
Item #16A5
FINAL PLAT OF "ISLAND WALK PHASE FIVE A" - SUBJECT
TO CONSTRUCTION AND MAINTENANCE AGREEMENT,
AND PER FORMANCF, SECIIRITY AND STIPI HJATIONS
Item # 16A6
FINAL PLAT OF "COACHMAN GLEN"- SUBJECT TO
CONSTRUCTION AND MAINTENANCE AGREEMENT, AND
PF, RFORMANCE SECI IRITY AND STIPI IIJATIONS
Item #16A7
ACCEPTANCE OF DONATION OF 1,800 SQUARE FEET OF
STORAGE SPACE AS EQUIVALENT TO $11,600 IN
OPERATIONAL EXPENSES AND RELEASE OF $13,900 OF
TDC FI INDS TO THE MARCO ISI,AND HISTORICAl, SOCIETY
Item # 16B 1 - Deleted
Item # 16B2
RESOLUTION 2000-348 AUTHORIZING THE EXECUTION OF
A JOINT PARTICIPATION AGREEMENT (JPA) FOR PUBLIC
TRANSIT EXPENSES WITH THE FLORIDA DEPARTMENT OF
TRANSPORTATION (FDOT)
Item # 16B3
Page 131
October 1 O, 2000
CHANGE ORDER NO. 2 TO THE CONSTRUCTION CONTRACT
NO. 00-3031 WITH HANNULA LANDSCAPING, INC. FOR C.R.
951 PART "B" LANDSCAPE IMPROVEMENTS - IN THE
AMOI JNT OF $11~856
Item #16B4
RESOLUTION 2000-349 AUTHORIZING THE EXECUTION OF
A JOINT PARTICIPATION AGREEMENT (JPA) FOR PUBLIC
TRANSIT VEHICLES WITH THE FLORIDA DEPARTMENT OF
TRANSPORTATION (FDOT)
Item #16B5
BID #00-3144, "SR 951 AT FIDDLER'S CREEK MSTD
ROADWAY GROUNDS MAINTENANCE"- AWARDED TO
COMMERCIAL LAND MAINTENANCE, INC. - FOR THE BASE
BID AMOIJNT OF $65,952.50
Item # 16B6
CHANGE ORDER NO. 4 WITH APAC-FLORIDA, INC. FOR
ADDITIONAL CONSTRUCTION SERVICES FOR THE
WIDENING OF IMMOKALEE ROAD FROM 1-75 TO COLLIER
lqOl HJF, VARD (CR-951) - 1N THE AMOI INT OF $323,115.90
Item # 16B7
AMENDMENT TO WORK ORDER TS-BL-9908 WITH BOTNER
LAND DESIGN, INC. FOR THE BAYSHORE DRIVE
BEAUTIFICATION MUNICIPAL SERVICES TAXING UNIT
(MSTU) LANDSCAPING PROJECT - IN THE AMOUNT OF
Page 132
October 1 O, 2000
$2:780
Item #16C 1
CERTIFICATIONS OF FINANCIAL RESPONSIBILITY
REQUIRED TO BE SUBMITTED WITH THE SOUTH COUNTY
REGIONAL WATER TREATMENT PLANT REVERSE OSMOSIS
EXPANSION DEEP INJECTION WEIJ,S
Item # 16C2
APPROVAL OF CONSENT AGREEMENT AND $500 PENALTY
ASSESSED BY THE FLORIDA DEPARTMENT OF
ENVIRONMENTAL PROTECTION (FDEP) FOR FAILURE TO
OBTAIN DUST COLLECTION SYSTEM CONSTRUCTION
PERMITS FOR THE $OIJTH WATER TREATMENT FACII,ITY
Item # 16D 1
RESOLUTION 2000-350, TO CONVEY A GRANT OF UTILITY
EASEMENT TO SPRINT-FLORIDA, INCORPORATED, FOR
COMMUNICATION FACILITIES TO BE LOCATED AT
GOLDEN GATE COMMI JNITY PARK
Item #16D2
RESOLUTION 2000-351, TO CONVEY A GRANT OF UTILITY
EASEMENT TO SPRINT-FLORIDA, INCORPORATED, FOR
COMMUNICATION FACILITIES TO BE LOCATED NEAR THE
INTERSECTION OF TAHITI STREET AND CAPRI
BOULEVARD (A/K/A "GRIFFIS HIGHWAY") IN ISLE OF
CAPRI
Page 133
October 10, 2000
Item # 16E 1
CARRY FORWARD IN COUNTY WIDE CAPITAL PROJECTS
FIJND (301)- IN THE AMOIJNT OF $17927;215
Item #16E2
BUDGET AMENDMENT FOR THE FISCAL YEAR 2001 PC
REPIJACEMENT PROGRAM
Item # 16G 1
BI IDGET AMENDMENT #00-512
Item # 16J 1
MISCELLANEOUS CORRESPONDENCE- FILED AND/OR
REFERRED
The following miscellaneous correspondence, as presented by
the Board of County Commissioners, has been directed to the various
departments as indicated:
Page 134
FOR BOARD ACTION:
BOARD OF COUNTY COMMISSIONERS
MISCELLANEOUS CORRESPONDENCE
October 10, 2000
MISCELLANEOUS ITEMS TO FILE EOR RECORD_WITH ACTION AS DIR$C~D:
Clerk of.Courts: Submitted for public record, pursuant to Florida Statutes, Chapter
136.06(1), the disbursements for the Board of County Commissioners for the period:
A. August I6, 2000 - August 22, 2000
B. August 23, 2000 - August 29, 2000
C. August 30, 2000 - September 5, 2000
D. September 6, 2000 - September 12, 2000
ho
Fiddler's Creek Community Development District- Minutes of June 28, 2000 with
attached Proposed Budget for the Fiscal Year of 2001 and Minutes of July 26,
2000 with attached Adopted Final Budget for the Fiscal Year of 2001
Collier Soil & Water Conservation District - Agenda for August 2, 2000 meeting
and minutes of July 13 2000 meeting, Proposed Budget for 2000-2001, District
Map, Public Facilities Report Letter Stating No Changes Have Been Made, Letter
on Description of Outstanding Bonds, Letter Advising of the Board of
Supervisors Schedule of Regular Meetings, and Copy of Special District Update
Form Changing Registered Agent
The Big Cypress Basin Board of the South Florida Water Management District -
Agenda for August 25, 2000 meeting
Miditerra South Community Development District - Minutes of July 26, 2000
Board of Supervisors meeting with attached copy of Operation Budget for 2001
and Resolution Adopting this Final Budget for Fiscal Year 2001
Minutes:
Rural Fringe Area Assessment Oversight Committee - Agenda for August 9,
2000 and September I3, 2000 meetings and minutes of July 12, 2000, July 26,
2000 and August 23, 2000 meetings, and summary minutes of August 9, 2000
meeting
H:Data/Format
B. Pelican Bay MSTBU Advisory Committee - Agenda for May 23, 2000 and
September 6, 2000 meetings and minutes for May 3, 2000 and July 13 meetings
C. City of Naples Airport Authority - Agenda for May 18, 2000 meeting, and
minutes of April 20, 2000 meeting
D. Environmental Advisory Council - Agenda for September 6, 2000 meeting and
minutes of July 12, 2000 and August 2, 2000 meetings
E. Bayshore Beautification Advisory Committee - Minutes of August 3, 2000
meeting
F. Golden Gate Beautification Advisory Committee - Agenda for August g, 2000
and September 12, 2000 meetings and minutes of July 11, 2000 and August 8,
2000 meetings
G. Immokaiee Enterprise Zone Development Agency Board - Minutes of February
10, 2000 and May 4, 2000 meetings
H. Parks and Recreation Advisory Board - Agenda of May 24, 2000 and August 23,
2000 meetings and minutes of April 26, 2000 and June 28, 2000 meetings
I. Golden Gate Land Trust Committee - Minutes of March 27 and May 22, 2000
meetings
$. Historic & Archaeological Preservation Board - Agenda for August 18, 2000
meeting and minutes of Suly 21, 2000 meeting
K. Collier County Airport Authority - Agenda for August 21, 2000 and September
11, 2000 meetings and minutes of July 1 g, 2000 and August 21, 2000 meeting
L. Collier County Planning Commission - Agenda for September 7, 2000 meeting
M__.~ Collier County Water & Wastewater Authority - Minutes of July 24, 2000
meeting
N__~. Southwest Florida Work. force Development Board - Agenda for September 8,
2000 meeting and minutes of Suly 12, 2000 meeting
O__~. Lely Golf Estates Beautification Advisory Committee - Agenda of September 7,
2000 meeting and minutes of August 10, 2000 meeting
P_.,. Immokalee Beautificraion M.S.T.U. Advisory Committee - Agenda for
September 20, 2000 meeting and minutes of July 19, 2000 and August 16, 2000
meetings
O. Pathway Advisory Committee to the Collier County metropolilan Planning
Organization - Agenda for August 25, 2000 meeting
H:Data/Format
October 10, 2000
Item # 16L 1
AGREED ORDER REGARDING APPRAISAL FEES IN THE
EMINENT DOMAIN CASE ENTITLED COLLIER COUNTY V.
JOHN B. FASSETT, TRUSTEE OF THE ANNE M. FASSETT
TRUST DATED 06/05/86 ET AL., CASE NO. 99-3040-CA-
STAFF TO DEPOSIT AN ADDITIONAL $3,300 INTO THE
REGlSTRY OF THE COl IRT
Item #16L2
LEGAL REPRESENTATION TO CURRENT AND FORMER
COUNTY STAFF MEMBERS IN CRIMINAL INVESTIGATION
PROCEEDINGS STEMMING FROM THE WAJERSKI V.
COLLIER COUNTY, ET. AL., CASE NO. 95-3067-CA; AND
APPROVAL OF AGREEMENT WITH DAVID E. BRYANT, ESQ.,
TO PROVIDE SAID REPRESENTATION AT THE RATE OF $120
PFiR HOI IR
Item # 17A
RESOLUTION 2000-352, RE PETITION CU-2000-07, WILLIAM
L. HOOVER, HOOVER PLANNING & DEVELOPMENT,
REPRESENTING PASTOR JAIME ESPINOZA OF THE IGLESIA
HEREDEROS DE DIOS (LAKE TRAFFORD CHRISTIAN
CHURCH), REQUESTING A CONDITIONAL USE FOR A
CHURCH, PRIVATE SCHOOL, AND A CHILD CARE FACILITY
FOR PROPERTY LOCATED ON THE SOUTH SIDE OF LAKE
TRAFFORD ROAD, APPROXIMATELY 2.5 MILES WEST OF
SR. 29_ CONSISTING OF 19.15+/- ACRES
Item # 17B
Page 135
October 10, 2000
RESOLUTION 2000-353, RE PETITION V-2000-18, STEPHEN J.
TRUDNAK, P.A., REPRESENTING DAVID AND DIANE
BAUTSCH, REQUESTING A 4'-8" VARIANCE FROM THE
REQUIRE 10' REAR YARD SETBACK FOR ACCESSORY
STRUCTURES IN ORDER TO RENOVATE AND EXPAND A
POOL AND A DECK FOR PROPERTY LOCATED AT 297 3Rr)
ST. WEST IN I,ITTIJF, HICKORY SHORES SII[tDIVISION
Page 136
October 10, 2000
Item ~17C
RESOLUTION 2000-354, RE VAC-00-003, C. LANE WOOD, ESQ., AS
AGENT FOR THE PETITIONERS, RSH OF NAPLES, INC. AND THE
AMERICAN RED CROSS, REQUESTING THE VACATION OF THE 15
FOOT DRAINAGE EASEMENT ALONG THE COMMON TRACT LINES
OF TRACTS 'T" AND 'S" ACCORDING TO THE PLAT OF
"NORTHBROOKE PLAZA"
Item #17D
BUDGET AMENDMENT RESOLUTION 2000-04, AMENDING THE
BUDGET FOR THE 1999/00 FISCAL YEAR
Any other further business in front of the Board of County
Commissioners this date of October 107
Seeing none, we stand adjourned.
There being no further business for the good of the County,
the meeting was adjourned by order of the Chair at 1:20 p.m.
BOARD OF COUNTY COMMISSIONERS
BOARD OF ZONING APPEALS/EX
OFFICIO GOVERNING BOARD(S) OF
SPECIAL DI/~TRI~NDER ITS CONTROL
These minutes approved by the Board on
presented ~ or as corrected
, as
Page'137