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BCC Minutes 09/02/2003 E (Lethal Yellowing)September 2, 2003 COLLIER COUNTY BOARD OF COMMISSIONERS EMERGENCY MEETING Naples, Florida, September 2, 2003 LET IT BE REMEMBERED, that the Board of County Commissioners in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special districts as have been created according to law and having conducted business herein, met on this date at 9:05 a.m. in EMERGENCY SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: TOM HENNING DONNA FIALA JIM COLETTA ALSO PRESENT: Jim Mudd, County Manager David C. Weigel, County Attorney. Page 1 NOTICE OF SPECIAL MEETING OF BOARD OF COUNTY COMMISSIONERS TO CONSIDER DECLARATION OF LETHAL YELLOWING EMERGENCY Notice is hereby given that the Board of County Commissioners of Collier County will hold a special meeting on TUESDAY, SEPTEMBER 2, 2003, at 9:00 A.M. in the Boardroom, 3rd Floor of the W. Harmon Turner (Administration/F) Building, Collier County Government Center, 3301 East Tamiami Trail, Naples, Florida. The Board's agenda will include: Consideration of Recommendation of the Public Services Administrator to Declare a Lethal Yellowing Emergency under Collier County Ordinance No. 2000-23. All interested parties are invited to attend, to register to speak and to submit their objections, if any, in writing, to the Board prior to the special meeting. All registered public speakers will be limited to five (5) minutes unless permission for additional time is granted by the Chairman. Any person who decides to appeal a decision of the 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. 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. 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, FL 34112 (239) 774-8380. BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA Tom Henning, CHAIRMAN Dwight E. Brock, CLERK by: /s/ Maureen Kenyon, DEPUTY CLERK (SEAL) September 2, 2003 Item #2 RESOLUTION 2003-261 DECLARING A STATE OF EMERGENCY REGARDING LETHAL YELLOWING- ADOPTED MR. DUNNUCK: Good morning. For the record, my name is John Dunnuck, Public Services Administrator. Thank you for joining us in this special meeting. Pursuant to ordinance 2000-23 as amended, we are here today requesting that the board approve a declaration of emergency for lethal yellowing in two specific areas that we've identified lethal yellowing in the county, one's up in the Naples Park area, and I believe you have a map with you, and the other is in the Grey Oaks area as well. Under this declaration, we're asking for it to be actually countywide in case other areas pop up so that we can go ahead and administer the ordinance accordingly. Under your present ordinance, what we would do is, we would post it in the newspaper for 15 days for the affected areas and we'd go and post those houses in the affected areas and give them 15 days to follow our inoculation process. Absent them doing that, we would go ahead-- we would inoculate them and you could proceed with code enforcement hearings if they didn't follow our ordinance in that respect. We're asking for up $20,000 be allocated for this declaration. We expect that not all 20,000 would be spent in this fiscal year since we're wrapping up, but that under this declaration over the period of time leaking into next year, we could spend up to $20,000. Are there any questions? CHAIRMAN HENNING: Questions by the members of the board? COMMISSIONER COLETTA: Yes. Are we-- will this Page 2 September 2, 2003 $20,000 allow us to get a handle on it or do we have something that's already a major disaster? MR. DUNNUCK: No, this will more than allow us to get a handle on it. These things pop up from time to time. We still are actually under a previous declaration in the Poinciana Village area and down in Isles of Capri as well that we've had to, from time to time, go ahead and utilize this ordinance under a previous declaration, so I anticipate that this is a relatively minor cost, but that we have to address it to keep it from spreading. MR. MUDD: John, did you tell them which areas were affected? CHAIRMAN HENNING: Commissioner Fiala? COMMISSIONER FIALA: Yes, one question, it's highly contagious and it's -- and it travels by air, it was interesting that you have some way up in North Naples and some in Grey Oaks, but nothing in between and I was wondering, how does something like that happen, do they buy them infected or what happens? MR. DUNNUCK: It can. You know, Mr. Caldwell from extension services can describe lethal yellowing if you'd like. COMMISSIONER FIALA: I was just wondering if there's -- MR. DUNNUCK: It's one of those things. We have pockets similar to how you would have a health situation where you try and contain it in the surrounding area as quickly as possible, but it can be -- it can be a purchased tree that comes in from out of county or it could be that somebody transported it, there's lots of variations in that. COMMISSIONER FIALA: So we have somebody now checking to make sure that it isn't spreading? MR. DUNNUCK: Yes. CHAIRMAN HENNING: Mr. Dunnuck, the action you're asking the board to take today is not only inoculation of the palms, but removal of palms if need be. How does -- in light of the fact of Page 3 September 2, 2003 the citrus canker in the State of Florida and the action that the judge has taken in the recent past, is that setting up Collier County to be drug into the court system? MR. DUNNUCK: That's probably more of a legal question for Mr. Weigel. MR. WEIGEL: Thank you. I'll be happy to respond. David Weigel, County Attorney. Good morning, commissioners. It would seem to me that the parallel that may exist from the court actions relating to citrus canker and the potential declaration of emergency and administration by staff thereafter upon a declaration of emergency concerning lethal yellowing is this, we have -- we have learned from the court cases on citrus canker that a judge has -- has ruled, at least from time to time, different judges, that going on the premises and enforcing the boundary, the significant aerial boundary around where infected trees are found to remove other trees has been problematic. Our ordinance on lethal yellowing, which incidentally is ordinance 72-6 as amended, our ordinance does not provide for an aerial removal, but rather specific removal of infected palms as well as the inoculation of all trees upon -- upon a declaration of emergency, so it should be clear for the board and then ultimately for the public through the public notice process that's required under the ordinance, that if a declaration of emergency is declared for a specific part of Collier County, and it appears that our discussion today is essentially the unincorporated areas of Collier County and the municipalities that may not already have in place a lethal yellowing ordinance of their own, that in all areas so declared is first a requirement to inoculate as well as an accompanying requirement for removal. That requirement for removal is initially upon the property owner. If the property owner does not remove the tree, the county has the authority and certainly the ability and, by authorization, the authorization of expenditure for staff to see to the removal of trees within-- where infection is found Page 4 September 2, 2003 and confirmed. If, however, a property owner, and this gets back to the citrus cancer -- citrus canker question, if a property owner that has a confirmed infected tree does not allow the county to go forward to administer the lethal yellowing actions that are authorized, there would be a code enforcement problem. We have seen recently that Code Enforcement has had to wrestle a bit with questions of being allowed on premise,s for whatever kind of code enforcement issues may purport to exist on the property and staff, through the county manager's office has very carefully and adroitly not subjected the county staff to trespass issues in that regard to this point and they've worked very carefully there, so I would tend to think that if the board authorizes staff to go forward here through a declaration of emergency, that they will continue to work closely with the County Attorney's Office to reduce issues of private property -- both private property specifically relating to trees and private property relating to access onto that property. I've been a little wordy, but I appreciate the opportunity to respond. CHAIRMAN HENNING: Yeah, Mr. Weigel, I hear what you say about what the judge's ruling was on the citrus canker case with the radius of removal of trees, but I think there were some other things that were said in there in his ruling and I'm just trying to go by memory. I'm going to vote on -- based on your recommendations, that the Board of Commissioners is doing everything legal in an emergency for lethal yellowing. Commissioner Fiala? COMMISSIONER FIALA: Yes, last question. I'm sorry. I know that I have trees I was advised a few years back were suspect of lethal yellowing, I was advised I needed to have them inoculated and I find that I have to have them inoculated, I think it's three or four times a year. We're not going to assume that responsibility, are we? Will it be the homeowners who have those trees assuming the responsibility of continuing the inoculations from here on in? Page 5 September 2, 2003 MR. DUNNUCK: Well, that's under your ordinance. What you would do is, you would post the area and the radius under my recommendation to inoculate those areas and we typically do it within 100 yards of an infected tree, and then it is the homeowner's responsibility. Absent the homeowner actually doing it and providing us documentation that they're doing it, we would go in and do it and then they would be subject to code enforcement actions against them, similar to like if somebody owned a property and they weren't cutting their grass and we went and cut their grass for them, that's the type of process we'd utilize. COMMISSIONER FIALA: So we don't assume the financial responsibility of the dollars. Thank you. MR. DUNNUCK: No, ma'am. COMMISSIONER COLETTA: I'd like to make a motion for approval. I believe this is a quality of life issue. COMMISSIONER FIALA: And I second the motion. CHAIRMAN HENNING: With staff's recommendations, Mr. -- COMMISSIONER COLETTA: I'll say it, that's correct. CHAIRMAN HENNING: Mr. Weigel? MR. WEIGEL: Thank you, Mr. Chairman. Just for clarification, it appears that the board is being asked for a declaration of emergency for-- under the lethal yellowing ordinance 72-6 as amended and I want to be very clear about the areas to be affected. Mr. Dunnuck has talked about a radius around known infected trees and I think the board has the power to craft the designation very expressly and specifically if they wish to, but I want to be very clear that if we're talking countywide or something countywide, unless we're clearly limiting-- providing some limitation language, then all properties with a tree in question will have, as Miss Fiala indicated, a requirement to inoculate and I'm not sure that I heard that -- that that's the request that's coming from staff to the board, that all trees of the kind that are affected here be inoculated or merely trees within Page 6 September 2, 2003 a radius of where -- where infection has been determined and I'd appreciate if that could be cleared up on the record. CHAIRMAN HENNING: Mr. Dunnuck? MR. DUNNUCK: Absolutely. We have two known areas at this time. Our recommendation is that in the areas that are designated and if we do identify that there are infected trees, then again, we would go ahead and enforce that infected tree with the removal and that we would require within 100 yards of that area that they inoculate as well. CHAIRMAN HENNING: But Mr. Dunnuck, it's a countywide declaration, but we're only handling these two infected areas? MR. DUNNUCK: That -- no, that's what we have for the infected areas presently. What we're requesting is that you declare it countywide excluding municipalities that already have an ordinance in place, so that if another area does pop up, you can go ahead and -- CHAIRMAN HENNING: Mr. Weigel? MR. WEIGEL: Well, I'm still a little unclear about the area of inoculation because the ordinance says upon a declaration of emergency, it is -- it is required that the owners in an area designated as a -- under emergency, inoculate the trees. CHAIRMAN HENNING: Correct, and the area could be countywide. MR. WEIGEL: So I hear so far. I'm a little unclear about that. COMMISSIONER COLETTA: I think we're looking for an area as far as feet, inches, miles. I assume that this is all -- MR. DUNNUCK: My recommendation would be within 100 yards of the -- of an infected tree as identified. COMMISSIONER COLETTA: And that is included in the ordinance that you have written? MR. DUNNUCK: The 100 yards designation? I do not believe it is, but that is -- that has been the protocol in the past. That's what we feel comfortable with. Page 7 September 2, 2003 COMMISSIONER COLETTA: And this is based upon science that you have received from -- MR. DUNNUCK: That's correct. COMMISSIONER COLETTA: Tell you what, I feel a little uncomfortable at this point bringing forward -- or going forward. Could we possibly get a more definitive answer as to what the science is behind this? CHAIRMAN HENNING: Do you have somebody here, Mr. Dunnuck, that-- MR. DUNNUCK: Sure, Doug Caldwell is here from extension services. MR. CALDWELL: Okay. I'm not sure what the specific question is, but typically we monitor -- we do a couple of helicopter surveys, aerials, and if we see a suspect tree, we go and take a closer look at it and some symptoms are just classic. Other symptoms, we send in samples to the University of Florida, Fort Lauderdale. All lethal yellowing experts throughout the world and Dr. Nigil Harris have a process where they can analyze the tissue, send it in and confirm if it is the disease. MR. DUNNUCK: I think the question is, why do we do it within 100 yard radius? MR. CALDWELL: That's based on Dr. Nigil Harris' recommendation, so it's spread by a plant hopper and I guess it can't fly more than 100 yards. I can't tell you specifically. COMMISSIONER COLETTA: Do we want to increase that range or is 100 yards sufficient? MR. DUNNUCK: A hundred yards is sufficient. COMMISSIONER COLETTA: Then I'll include that in my motion. COMMISSIONER FIALA: And I'll include that in my second. CHAIRMAN HENNING: Just to clarify, staff is recommending to remove the infected trees and inoculate within 100 yards or feet? Page 8 September 2, 2003 MR. DUNNUCK: Yards. CHAIRMAN HENNING: Yards, and also any other infected areas within Collier County are to be proactive and inoculate those trees or remove, if necessary? MR. DUNNUCK: That's correct. MR. MUDD: Commissioner, if there are any other places outside of 102nd and Grey Paw -- or Gray Oaks. I've got Bear's Paw and Grey Oaks in my mind. If we have any other areas besides those two, we'll give you the designations when we notify you so that you'll know where those areas are if it has any effect on your district. CHAIRMAN HENN1NG: Does our legal staff feel comfortable with the direction? MR. WEIGEL: Okay. Well, what I will do is assist with a slight redraft of the declaration that's before you. There will also be a resolution for tracking with the clerk's office. It appears that we have identified two specific areas here. It sounds as if staff is talking about that there may be additional areas that are found. I'll work very closely with them because notice requirements are very important if we're going to have any kind of a code enforcement follow-up for failure to inoculate or failure to remove. It appears, and I want the record to be clear for me, that we are not looking for, quote, countywide inoculation at this time and I think it should be very clear on the record so that the notice that we put out that must go in the newspaper or general circulation 15 days before enforcement, that it indicates specifically what areas we're concerned with at this time and if there are additional areas that crop up later, that we stay in conference on this and keep the board apprised so that the board can act conceivably at a regular meeting at that point to do any further crafting or adjustment of the area of emergency. It does not appear that the board is enacting a countywide emergency right now because under the ordinance, that requires Page 9 September 2, 2003 inoculation wherever the area of emergency is declared, so it looks like we're going for potentially enlarging it with further information that comes over-- that comes -- becomes apparent about infection, but staff has done a very good thing to come forward with a notice of infection to try to nip it early and we can -- we can assist with the document that helps do that. CHAIRMAN HENNING: Any further questions? Any other discussion on the motion? COMMISSIONER COLETTA: Just one thing I want to make sure I'm clear on. My belief is that we're giving you the authorization, because this thing can spread if the wind comes up, any number of conditions can happen that will move it forward, if we're only limiting this to two areas, I don't think we're doing justice to the process itself. We're going to have to come back to the commission every -- the next area and the next area have to wait for a commission meeting and in two weeks, it could be disastrous, the area could expand greatly, that cost could be prohibitive for a number of people out there to act in a timely manner. My understanding of what we're putting together here is giving you the authority to be able to declare these emergencies as they pop up so they can be treated in a timely fashion. Am I wrong on that? MR. DUNNUCK: No, I think you're correct. I think what Mr. Weigel's saying is that he needs to craft the language that will be consistent with the ordinance to help you get where you need to go and -- COMMISSIONER COLETTA: Now, my question would be, are we going to have to delay the implementation of this ordinance while we recraft it or are we going to be able to start -- MR. WEIGEL: No, Commissioner, but we will have a requirement under the ordinance to get a notice out in a paper, probably the Naples Daily News, a paper of general circulation which indicates those areas to be affected, and it appears from our Page 10 September 2, 2003 discussion that the board is not looking necessarily to require all owners throughout essentially all of the county to have to inoculate at this point and that's why we're kind of doing this surgical honing in CHAIRMAN HENNING: I think we're all clear on the direction of the motion by the Board of Commissioners. Any further discussion? All in favor of the motion, signify by saying aye. COMMISSIONER FIALA: Aye CHAIRMAN HENNING: Aye. COMMISSIONER COLETTA: Aye CHAIRMAN HENNING: Opposed? (No response.) CHAIRMAN HENNING: Motion carries unanimously. Thank you. Any further business? Great. See everybody next Tuesday. We're adjourned. There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 9:20 a.m. BOARD OF COUNTY COMMISSIONERS BOARD OF ZOINING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL DISTRICTS UNDER ITS CONTROL TOM HENNING, ClelAIRMAN Page 11 September 2, 2003 ATTEST:--~,~3~'~% ',.,,, : WlOI-}-W~'."I)~} CLERK These m~nute'S approved by the Board on as presented ~ or as coxected TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING BY: Heather L. Casassa Page 12