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BCC Minutes 03/09-10/2004 RMarch 9 & 10, 2004 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, March 9 & 10, 2004 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 district as has been created according to law and having conducted business herein, met on this date at 9:00 a.m., in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Donna Fiala Frank Halas Tom Henning Fred W. Coyle Jim Coletta ALSO PRESENT: Jim Mudd, County Manager; David Weigel, County Attorney; and Jim Mitchell, Office of the Clerk of Court Page 1 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA March 9, 2004 9:00 a.m. Donna Fiala, Chairman, District 1 Fred W. Coyle, Vice-Chairman, District 4 Frank Halas, Commissioner, District 2 Tom Henning, Commissioner, District 3 Jim Coletta, Commissioner, District 5 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. 2003-53, AS AMENDED 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 RECEIVE UP TO FIVE (5) MINUTES UNLESS THE TIME IS ADJUSTED BY THE CHAIRMAN. 1 March 9, 2004 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, (239) 774-8380; ASSISTED LISTENING DEVICES FOR THE HEARING IMPAIRED ARE AVAILABLE IN THE COUNTY COMMISSIONERS' OFFICE. Commissioners will be attending the Know Your County Government Teen Citizenship Luncheon from 12:15 to l:15 p. m. located at the East Naples Methodist Church 1. INVOCATION AND PLEDGE OF ALLEGIANCE A. Father Tim Navin, St. Peter the Apostle Catholic Church 2. AGENDA AND MINUTES A. Approval of today's regular, consent and summary agenda as amended. (Ex Parte Disclosure provided by Commission members for summary agenda.) B. February 10, 2004- BCC Regular C. February 11, 2004 - BCC/LDC Meeting D. February 17, 2004 - Tri-County Meeting E. February 18, 2004 - BCC/District 2 Town Hall Meeting F. February 25, 2004 - BCC/Everglades City Workshop 3. SERVICE AWARDS 4. PROCLAMATIONS A. Proclamation to recognize the Week of March 7-13, 2004 as Know Your County Government Week. To be accepted by Cody Martin, Student at Naples High School and Jose Nunez, Student at St. John Neumann. B. Proclamation to designate the week of March 8-13, 2004 as Habitat for Humanity's Build a Better Future Week. To be accepted by Dr. and Mrs. Sam Durso. 2 March 9, 2004 Proclamation to recognize the month of March 2004 as Invasive Exotic's Control Week. To be accepted by Melissa Hennig, Environmental Specialist for Collier County. De Proclamation to honor the County's achievement, the 500th AED from EMS to be dedicated to the W. Harmon Turner Building in the Collier County Government Complex, the symbolic location of where the program began. To be accepted by Noemi Diaz, Captain of Emergency Medical Services for Collier County. PRESENTATIONS PUBLIC PETITIONS BOARD OF ZONING APPEALS A. This item to be heard at 9:00 a.m. on March 10t 2004. This item requires that all participants be sworn in and ex parte disclosure be provided by Commission members. ADA-2004-AR-5218 Pelican Bay Foundation Inc., represented by Robert D. Pritt of Roetzel and Andress, requesting an appeal to official interpretation INTP-2003-AR-4307 relating to the approval of SDPA-2001-AR-412 for the Cap D'Antibes Condominium Project, Waterpark Place, within the Pelican Bay DRI/PUD. This appeal is pursuant to Collier County Land Development Code (LDC) Section 1.6.6. Be This item to be heard after Item 7A on March 10, 2004. This item requires that all participants be sworn in and ex parte disclosure be provided by Commission members. ADA-2003-AR-4933, Michael J. Volpe of Robins, Kaplan, Miller and Ciresi, LLP, representing Pelican Bay Property Owners Association, requesting an appeal to official interpretation INTP-2003-AR-4306 relative to the approval of SDPA-2001-AR-412, Waterpark Place at Pelican Bay. ADVERTISED PUBLIC HEARINGS Ae Adoption of an Ordinance amending Chapter 74 of the Collier County Code of Law and Ordinances, as amended by Ordinance No. 2001-13 (The Collier County Consolidated Impact Fee Ordinance, as amended) providing for the adoption of a General Government Building Impact Fee with a delayed effective date of April 1, 2004. 3 March 9, 2004 9. BOARD OF COUNTY COMMISSIONERS 10. 11. 12. A. Appointment of member to the Collier County Coastal Advisory Committee. B. Appointment of member to the Tourist Development Council. Ce Discussion regarding FPL Preferred Transmission Line Alignment. (Commissioner Fiala and Joe Schmitt) D. Discussion regarding FEMA Update. (Commissioner Coletta) Discussion regarding Aquaculture Use Zone in Collier County. (Commissioner Coletta) Fe Item continued from the February 24~ 2004 BCC Meeting and is further continued to the March 23~ 2004 BCC Meeting. Approve a Resolution supporting the preservation of the State Transportation Trust Fund. (Norman Feder, Transportation Services Administrator) COUNTY MANAGER'S REPORT Ae This item to be heard at 1:30 p.m. Review the written and oral reports of the advisory boards and committees scheduled for review in 2004 in accordance with Ordinance No. 2001-55, including the Citizens Advisory Task Force, Collier County Code Enforcement Board, Contractors Licensing Board, Golden Gate Parkway Beautification Advisory Committee, Immokalee Beautification Advisory Committee, Isles of Capri Fire Control District Advisory Board, Parks and Recreation Advisory Board, and Collier County Water and Wastewater (Utility) Authority. (Winona Stone, Assistant to the County Manager) Approve a three-year collective bargaining agreement with the International Association of Firefighters Local 1826 (Emergency Medical Services Union). (John Dunnuck, Public Services Administrator) Request for County sponsorship for US Military appearances during July 2- 5, 2004. (John Dunnuck, Public Services Administrator) PUBLIC COMMENTS ON GENERAL TOPICS COUNTY ATTORNEY'S REPORT 4 March 9, 2004 13. 14. 15. Ae Recommendation pursuant to Collier County Resolution No. 95-632, that the Board of County Commissioners consider authorizing the Office of the County Attorney to select and retain outside counsel to represent two (2) individual County employees sued in Dwight E. Brock v. Board of County Commissioners, Linda T. Swisher, and Paul W. Wilson, Case No. 04-941- CA, Twentieth Judicial Circuit in and for Collier County, and waive the purchasing policy to the extent it applies to the selection of outside counsel and/or otherwise exempt the selection of outside counsel from competition pursuant to VII.G. of the Purchasing Policy. OTHER CONSTITUTIONAL OFFICERS AIRPORT AUTHORITY STAFF AND COMMISSION GENERAL 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. Ae COMMUNITY DEVELOPMENT & ENVIRONMENTAL SERVICES 1) Request to grant final approval of the roadway (private), drainage, water and sewer improvements for the final plat of "Eden at the Strand Replat - 1". The roadway and drainage improvements will be privately maintained, the water and sewer improvements will be maintained by Collier County. 2) Approve a budget amendment in the amount of $18,900 to fund temporary seasonal part time staff consistent with past years for conducting sea turtle monitoring for the 2004 nesting season. 3) Request to approve for recording the final plat of "Verona Walk Phase 1B" AR4692, and approval of the standard form construction and maintenance agreement and approval of the amount of the performance security. 5 March 9, 2004 Be Ce 4) Approve a 100% reimbursable Artificial Reef Construction Grant for the amount of $25,000 from the Florida Fish and Wildlife Conservation Commission. TRANSPORTATION SERVICES 1) Board approval to reject bid received under Bid #04-3595 "Clearing, Grubbing, Tree Trimming & Removal Services". 2) Approve a Donation Agreement for the acquisition of a perpetual, non-exclusive easement, which is required for the purpose of constructing and maintaining a sidewalk along the north side of the Cocohatchee Canal, across Tracts "B" and "C" of Carlton Lakes Unit One, accept the conveyance of said easement, and authorize the payment of South Florida Water Management District permit application fees. Estimated fiscal impact $330.00. Project 69081 WBS 1. 3) Approve Supplemental Agreement No. 9 for professional design services by Hole Montes, Inc., for the Immokalee Road Six-Laning Project from U.S. 41 to 1-75, County Project Number 66042, Bid Number 00-3057. Fiscal impact: $224,905. PUBLIC UTILITIES 1) Board approval of a budget amendment to recognize additional revenue from Contract No. ML040284 with the South Florida Water Management District in the amount of $40,000. A Pollution Control Surface Water Sampling Program. 2) Approve an agreement between Calusa Island Village, L.C., a Florida limited liability company and the Board of County Commissioners regarding the proposed upgrades to the Goodland Water Pumping Station. 3) Approve the purchase of a 2.81-acre lot at the northwest comer of Wilson Boulevard and 14th Avenue NW for water supply well sites at a total cost not to exceed $79,735; Project 701581. 4) Authorization to waive the competitive bidding process for technical assistance to perform a post implementation review, workflow 6 March 9, 2004 0 analysis and documentation of operating procedures for the Utility Billing Software System - (at a not-to-exceed cost of $72,300). s) Accept amendments to two grant agreements (Project time extensions) with South Florida Management District. 6) Approve funding and budget amendment for project management process documentation and authorize the Public Utilities Engineering Director to execute Work Order GH-FT-04-02 with Greeley & Hansen in the amount of $31,706, Project 75000. 7) Approve a Work Order under Contract #01-3271, fixed term professional engineering services for coastal zone management projects, with Coastal Planning & Engineering for a public information program, Phase 2, for the County/City of Naples major beach renourishment, Project 90527, in an amount not to exceed $47,870. 8) Accept grant agreement (Grease Control Educational Program) from the South Florida Water Management District in the total amount of $25,000 and approve necessary budget amendments. 9) Accept four grant agreements from the South Florida Water Management District in the total amount of $315,700. PUBLIC SERVICES 1) Approval of the Collier County Health Department Fee Schedule for FY2004. ADMINISTRATIVE SERVICES 1) Recommendation that the Board of County Commissioners repeal Resolutions 2001-294 and 2002-464 and adopt two new resolutions for the sole purpose of removing any language related to authorization to sign grant applications recognizing that such authority is outlined in the County Manager's grant coordination procedure in the Practices and Procedures manual. 2) Recommendation that the Board of County Commissioners approve and ratify a recommendation to file suit for recovery of 7 March 9, 2004 Fe Go repair/replacement costs incurred by the County in connection with property damage caused by a third party. 3) Approval to utilize State contracts for purchase of furniture and floor covering over twenty-five thousand dollars ($25,000). 4) Report and ratify staff-approved change orders and changes to work orders to Board-approved contracts. 5) Approve payments to sub-consultants for the Naples Jail Project in the amount of $112,845. 6) Award annual contract for Underground Utility Contracting Services pursuant to RFP #04-3535, in the estimated annual amount of $6,000,000. 7) Approve contract for Construction Manager at Risk for the proposed Courthouse Annex and Parking Garage, RFP #04-3576 to Kraft Construction Inc. 8) Approve Amendment No. 1, Contract #02-3422, to Disney and Associates, P.A., for architectural services for design of the new County Fleet Facility in the amount of $154,750. COUNTY MANAGER 1) Recognize and approve the FEMA Assistance to Firefighter's Matching (90/10) Grant in the amount of $157,500 and approve the necessary budget amendments. 2) Approval of Cooperative Agreement with the South Florida Water Management District accepting $1,000,000 annual funding contribution to Collier County for the first ten years of the twenty- year agreement. AIRPORT AUTHORITY 1) That the Board of County Commissioners approve a budget amendment increase of $16,000 to fund revised estimated costs to complete powder coating conversion and other improvements to the powder coating facility at the Immokalee Regional Airport. 8 March 9, 2004 17. 2) Approve the search for an Executive Director for the Collier County Airport Authority. H. BOARD OF COUNTY COMMISSIONERS 1) Commissioner Coletta's request for approval for reimbursement for attending a function serving a valid public purpose; the Hispanic Chamber of Commerce of Collier County Annual Awards Banquet in the amount of $65.00 as a "Valid Public Purpose". I. MISCELLANEOUS CORRESPONDENCE 1) Miscellaneous items to file for record with action as directed. J. OTHER CONSTITUTIONAL OFFICERS 1) That the Board of County Commissioners make a determination of whether the purchases of goods and services documented in the Detailed Report of Open Purchase Orders serve a valid public purpose and authorize the expenditure of County funds to satisfy said purchases. A copy of the detailed report is on display in the County Manager's Office, 2nd Floor, W. Harmon Turner Building, 3301 East Tamiami Trail, Naples FL. K. COUNTY ATTORNEY 1) Recommendation for the Board of County Commissioners to approve a revised Retention Agreement with the Law Firm of Carlton, Fields, Ward, Emmanuel and Smith, P.A., and to waive the purchasing policy, to the extent that is necessary, and/or to exempt this request from formal competition pursuant to Section VII.G. of the Purchasing Policy. 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 9 March 9, 2004 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. FOR THOSE ITEMS, WHICH ARE QUASIJUDICAL IN NATURE, ALL PARTICIPANTS MUST BE SWORN IN. Ae This item requires that all participants be sworn in and ex parte disclosure be provided by Commission members. Petition AVPLAT2003-AR4687 to disclaim, renounce and vacate the County's and the Public' s interest in a portion of the 10 foot wide drainage easement located along the rear of Lot 171, according to the plat of"Phase Two Queens Park at Lago Verde" as recorded in Plat Book 14, Pages 94 through 95, Public Records of Collier County, Florida. Located in Section 18, Township 50 south, Range 26 east. Be This item requires that all participants be sworn in and ex parte disclosure be provided by Commission members. Petition: PUDZ-03- AR-4528, Robert Duane of Hole Montes, Inc., representing Kevin Ratterree of GLH Development, L.L.L.P., requesting a rezone from "PUD" to a "PUD" Planned Unit Development to be known as the Terafina PUD. 'The purpose is to eliminate the golf course tracts, reconfigure the land use tracts, updating the Transportation commitments, revise the development standards and to provide for well fields and additional landscaping for property located approximately one mile north of Immokalee Road (C.R. 846) and on the north side of the Olde Cypress PUD in Section 16, Township 48S, Range 26E and consisting of 637 acres. Ce This item requires that all participants be sworn in and ex parte disclosure be provided by Commission members. PUDZ-2003-AR-4648, Florida Conference Association of Seventh-Day Adventists represented by Robert L. Duane of Hole Montes, Inc., and Richard D. Yovanovich, Esq. of Goodlette, Coleman & Johnson, requesting a rezone from "A" Rural Agricultural and "PUD" Planned Unit Development to PUD known as the Loch Ridge PUD by amending the PUD Master Plan to increase acreage from 13.44 acres to 18.05 acres, show a change in ownership, add church, private school, and community center as permitted uses, revise the plant nurseries, florist and vegetable sales uses to be allowed only on a temporary basis for up to three years, eliminate assisted living facility as a permitted use, and add accessory uses related to church and school. Property is located on the south side of Davis Boulevard, approximately 2000 feet east of the 10 March 9, 2004 Kings Way/Davis Boulevard intersection, in Section 7, Township 50 South, Range 26 East, Collier County, Florida. 18. ADJOURN INQUIRIES CONCERNING CHANGES TO THE BOARD'S AGENDA SHOULD BE MADE TO THE COUNTY MANAGER'S OFFICE AT 774-8383. 11 March 9, 2004 March 9 & 10, 2004 Item #2A REGULAR, SUMMARY AND CONSENT AGENDA-APPROVED AND/OR ADOPTED WITH CHANGES MR. OCHS: You have a live mike, Madam Chair. CHAIRMAN FIALA: Oh, thank you. The meeting will come to order. Would you all please stand. We have Father Tim Navin with us this morning. And before Father Tim comes up and gives our morning invocation, I just want to tell him how proud we all are of you, Father Tim. FATHER NAVIN: Thank you. CHAIRMAN FIALA: Twenty-fifth-- 25 years ago he was ordained as a priest. FATHER NAVIN: Yes. (Applause.) CHAIRMAN FIALA: Thank you. I knew you wouldn't come if I told you we were going to do that. FATHER NAVIN: I would have traded it all for a parking spot this morning. CHAIRMAN FIALA: Father Tim is also on my kitchen cabinet with -- as my advisory group for the East Naples area, and we're just so proud of you and we all love you. FATHER NAVIN: Thank you, dear. Thank you. Well, that was unexpected. Let us pray. Lord, you have called all of us to serve one another with humility and truth. Let our prayers for our community leaders, employees, and their efforts to work together. May they use our tax moneys wisely and do their jobs to the best of their ability for the Page 2 March 9 & 1 O, 2004 good of the whole community. Keep our neighborhoods safe and fill us with the courage to follow your will in all things. Amen. CHAIRMAN FIALA: And now we'll say the Pledge of Allegiance. (The Pledge of Allegiance was recited in unison.) CHAIRMAN FIALA: Thank you. FATHER NAVIN: Thank you, thank you. CHAIRMAN FIALA: Oh, hi. How are you? This gentleman here in the front row, Mr. Nunez, is a Key Club member, and Commissioner Henning will know what a Key Club is because the Kiwanis clubs do a lot with the Key Clubs. These guys are just vital in our community. It's good to see you here this morning. MR. NUNEZ: You, too. CHAIRMAN FIALA: Sorry to be on such a personal level. I should sound more business-like; right, kids? Well, this is my style. Now, this morning, we -- I'd like to ask our county attorney-- county attorney, Pat, do you have anything that you'd like to mention for the consent agenda, for the regular agenda? MR. WHITE: Assistant County Attorney Patrick White. There's nothing that I'm aware of, but if there is, we'll get back to you, Madam Chair. CHAIRMAN FIALA: Thank you. Mr. Mudd? MR. MUDD: Madam Chair, good morning. First of all I'd like to welcome the Know Your County Government Teen Citizenship Program and all the participants that are sitting off to your right-hand side in the front that I was talking to prior to the meeting. This is -- this also is their 25th year of doing this particular program, and I think it's a milestone for them, and I'd like them to wel -- I'd like to welcome them to our proceedings this morning. Page 3 March 9 & 10, 2004 (Applause.) MR. MUDD: The agenda changes for the Board of County Commissioners meeting, March 9th, 2004: Additional information regarding item 9(D). The executive summary -- approval of emergency authorization to contract with private sector firms as required to perform studies and other items of work in support of Collier County's restudy of the flood insurance rate map recently rescinded by the Federal Emergency (sic) Agency (FEMA). Mr. Schmitt will help Commissioner Coletta in this particular item, but there's -- but there's an addition. It's just not an update to the FEMA issues as in your agenda, but it's also going to be an approval of an emergency authorization to contract for a private sector firm to continue work until 1, December 4 (sic) as far as data that FEMA needs. The second item is to add item 10(D), and that's to award work order PBS-02-35 in the amount of $66,264 to Professional Building Systems, Inc., for the repair to the Cocohatchee River Park south docks, contract number 02-3349, and Mr. Dunnuck will present. The third item is move item 16(C)7 to 10(E). This item will not be heard earlier than two p.m. Approve a work order under contract 01-3271, fixed term professional engineering services for coastal zone management projects with coastal planning and engineering for a public information meeting, phase 2, for the county/City of Naples major beach renourishment, project 90527, in an amount not to exceed $47,870. And this was moved at Commissioner Henning's request. Notes: Item 16(E) 1 should read: Recommendation that the Board of County Commissioners repeal resolutions 2001-294 and 2002-464 and adopt a new resolution (rather than two new resolutions) for the sole purpose of removing any language related to authorization to sign grant applications recognizing that such authority is outlined in Page 4 March 9 & 1 O, 2004 the county manager's grant coordination procedure in the Practices and Procedures Manual, and that's at staff's request. Next item under notes: Replacement page for item 8(A). Replacement pages have been provided for page 50 of this item. The total square footage for general government buildings impact fee inventory is 582,258. That's at staff's request. Another item that I was getting -- as I -- as somebody was talking in my ear, and this has to do with 17(C), and I'd like to read this -- this particular change into the record. The applicant shall be responsible for the construction of a right turn lane at the project entrance at Davis Boulevard. Construction of this improvement shall be completed prior to the issuance -- issuance of a Certificate of Occupancy. Time certain items for today: Item 7(A) to be heard immediately following 7(B) Wednesday, March 10th, 2004. Again, item 7(A) and 7(B) that have to do with the Cap D'Antibes appeal will be heard tomorrow starting at nine o'clock; however, item 7(A) will be the second item for -- on tomorrow's agenda. And 7(B) will be heard first at nine a.m. Wednesday on March 10th, 2004. And I don't think I need to read the particular items. It has to do the Cap D'Antibes appeals, and everybody's aware of it. It's been published in our agenda. But again, 7(B) will be heard at nine o'clock, followed by 7(A) tomorrow. And the last item is item 10(A) to be heard at 1:30 p.m., and this is your annual advisory board reports. This is to review the written and oral reports of the advisory boards and committees scheduled for review in 2004, in accordance with order number 2001-55, including the Citizens Advisory Task Force, the Collier County Code Development Board, Contractors' Licensing Board, Golden Gate Parkway Beautification Advisory Committee, Immokalee Beautification Advisory Committee, Isles of Capri Fire Control Page 5 March 9 & 1 O, 2004 District Advisory Board, Parks and Recreation's Advisory Board, and the Collier County Water and Wastewater Utility Authority. That's all I have, Madam Chair. CHAIRMAN FIALA: Thank you. Commissioner Halas, do you have any ex parte for the summary agenda or any additions or changes? COMMISSIONER HALAS: Yes, I do. I had one meeting scheduled on the ex parte with Terafina, but it was canceled. CHAIRMAN FIALA: No additions or changes -- COMMISSIONER HALAS: No additions or corrections to the agenda. CHAIRMAN FIALA: Okay. Commissioner Coletta? COMMISSIONER COLETTA: Okay. Of course, we're not covering A and B today, on 17 (sic), summary agenda. I'll do that tomorrow as far as declarations goes. On C, yes, I did have correspondence, and I have them right here in my file for anyone that wishes to see them. CHAIRMAN FIALA: Thank you. Commissioner Henning? COMMISSIONER HENNING: 17(B), I did talk to the petitioner and representatives. I did talk to residents from Olde Cypress, Long Shore, Quail Creek Estates, staff. And other emails that I received are in my file for anybody's review. CHAIRMAN FIALA: Commissioner Coyle? COMMISSIONER COYLE: I have no additional changes to the agenda, and I do have a disclosure on item 17(B) of the summary agenda. I did meet with the petitioner and the petitioner's representative concerning that item, and I also have received some telephone calls. And any other correspondence will be in my file. CHAIRMAN FIALA: David, shall we be declaring our 17(A) Page 6 March 9 & 1 O, 2004 (sic) and (B) tomorrow? Because some of our commissioners were waiting till tomorrow, some were giving them today. MR. WEIGEL: No, it's fine to do it at the initiation of each of those hearing items tomorrow. CHAIRMAN FIALA: Okay. Very good. MR. MUDD: Ma'am, you meant-- you meant 7(A) and (B), correct? CHAIRMAN FIALA: I'm sorry, 7(A) and (B). COMMISSIONER COYLE: Yeah. We're talking about summary agenda. MR. MUDD: We're doing summary agenda right now. CHAIRMAN FIALA: Yeah, I'm sorry. COMMISSIONER COYLE: That's okay. CHAIRMAN FIALA: I'm getting way off base, excuse me. Thank you. I'm sorry. Probably all the kids in the audience make me nervous, right? Okay. Yes, I -- I have some disclosures on the summary agenda. 17(A), I have no disclosures, but 17(B), I have received (sic) a file here, it has all of my phone calls and emails in it. And with 17(C), although I hadn't gotten any emails or anything, I initiated some phone calls, talked with staff about this, just to make sure that I felt comfortable with it before approving it, and I do. Staff has gotten back to me with all the information that I needed, so I am comfortable with that. However, I would like to add one item to our agenda, and that is, I'm not comfortable with what I feel isn't a clear guidance to -- to the -- I'm sorry. We had the listed species, and we wanted to put them on the glitch cycle. And when I went back through the meeting notes, I felt that some of the meeting notes said yes, we need to -- Marti Chumbler said, yes, we need to have this cleared up on the glitch cycle because there's some confusion, and we needed to give clear guidance to our Page 7 March 9 & 10, 2004 staff, yet on the next one we kind of just glossed over it, and what I would like to do is add that conversation to our meeting today so that we commissioners can discuss that. And that's all for me, but we do have some speakers. On 17(A)? MS. FILSON: Yes, ma'am. 17(B) I have three speakers on the summary agenda. Susan Dinino. Susan? UNIDENTIFIED SPEAKER: We can't hear. COMMISSIONER HENNING: Sue, you might want to pull your mike up. MS. FILSON: Susan Dinino. You're registered.as a speaker for 17(B). Would you like to come up? She will be followed by Meggan Davis, who will be followed by Carol Wilsey. MS. DININO: Hi. My name is Susan Dinino, and I am a resident of Santorini section of Olde Cypress. This is the neighborhood on the south border of the GL Homes, Santorini Falls, Terafina PUD. I'm here today because these plans have been outlined for the portion of Terafina that will border our development and it will increase the hardship of the residents along the northern border of Olde Cypress. We are being asked to approve -- what you are being asked to approve today will create a potential for a development that violates our rights to privacy, a potential habitant for those with a peeping tom mentality. The development, we have been told by GL Homes, sits on land that is naturally about three feet higher than Olde Cypress. When the homes are built along the south border, they will be 18 to 24 inches above the crown of the road. This means that the base level of each home will already be at least five feet above ours. GL Homes wants these hom-- GL Homes wants these homes to be only 30 feet from the back property line, and they are proposing Page 8 March 9 & 1 O, 2004 two-story homes to be built there. This tells me -- this tell us it is because -- that we are increas -- because it is to increase the profitability by placing these homes in this area. The problem with this scenario is that the second story of these homes will then be approximately 20 feet above our homes. Even with the wall that has been proposed, we are inviting those residents to look inside our bedrooms and our pool areas. They won't need binoculars to see us either. There will be at least 10 women living on that border with children and grandchildren as well. Our homes were originally proposed to be looking into green space. It was going to be a golf course. We are now telling -- we are not telling GL Homes that they can't build their homes there. We are just asking for our rights to privacy. And we need the -- we need neither -- we either need the two-story homes to be moved to another area of their development or to have these homes landscaped very heavily with 20 feet high bushes. Thank you for your time and consideration, and I urge you to please have them put one-story homes there instead of the two-story homes. Okay. MR. WEIGEL: Madam Chairman? CHAIRMAN FIALA: Yes, sir. MR. WEIGEL: I would suggest -- this appeared to be more than a question for clarification, and so I would respectfully suggest that the item be moved to the regular agenda so that speakers can be sworn in and testify on the matter as opposed to remaining on the summary agenda. CHAIRMAN FIALA: Commissioners? COMMISSIONER COYLE: I agree. CHAIRMAN FIALA: If that's okay with you. Very good. Thank you. Page 9 March 9 & 10, 2004 MS. DIN1NO: Thank you. CHAIRMAN FIALA: Do we hear the rest of the speakers now then or wait till -- MR. WEIGEL: I would suggest that it be heard as called on the regular agenda, and to the extent that the speaker having just spoken, would need to be recognized for what she said or replead, restate what she said under oath at that point briefly and the other speakers allowed to speak as well so that we can actually have the appropriate dialogue as a regular agenda item, and if need be, notification should be done to the parties in interest, such as the petitioner, so that they will know that the matter is coming up on the regular agenda later today. CHAIRMAN FIALA: Very good. Thank you. So then we don't hear the other two speakers then until later? MR. WEIGEL: Not at this point, no. CHAIRMAN FIALA: Thank you. MR. MUDD: And that would be 8(B). CHAIRMAN FIALA: 8(B). And when will the agenda item that I requested be on? MR. MUDD: Ma'am, that item will come under communications and staff, if that's where you want it to be. CHAIRMAN FIALA: Okay, very good. MR. MUDD: So it will go on 15. CHAIRMAN FIALA: And so that will be on 15? MR. MUDD: Yes, ma'am. CHAIRMAN FIALA: Okay. Very good. Okay. Commissioners, may I have a -- COMMISSIONER COLETTA: Motion to approve. COMMISSIONER COYLE: Second. CHAIRMAN FIALA: Okay. We have a motion to approve the regular, consent, and summary agendas as amended. All those in favor, say aye. Page 10 March 9 & 10, 2004 COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: And opposed, like sign. (No response.) CHAIRMAN FIALA: Very good. Page 11 AGENDA CHANGES BOARD OF COUNTY COMMISSIONERS' MEETING March 9, 2004 Additional information reqardin.q Item 9D: Executive Summary - Approval of emergency authorization to contract with private sector firms, as required, to perform studies and other items of work in support of Collier County's restudy of the flood insurance rate maps recently rescinded by the Federal Emergency Management Agency (FEMA). (Joe Schmitt, Administrator, Community Development and Environmental Services) Add Item 10D: Award Work Order PBS-02-35 in the amount of $66,264 to Professional Building Systems, Inc., for the repairs to Cocohatchee River Park south docks, Contract Number 02-3349. (John Dunnuck, Public Services Administrator) Move Item 16C7 to 10E: This item will not be heard earlier than 2:00 p.m. Approve a Work Order under Contract #01-3271, fixed term professional engineering services for coastal zone management projects, with Coastal Planning and Engineering for a public information meeting, Phase 2, for the County/City of Naples major beach renourishment, Project 90527, in an amount not to exceed $47,870. (Commissioner Henning's request) Notes: Item 16E1 should read: Recommendation that the Board of County Commissioners repeal Resolutions 2001-294 and 2002-464 and adopt a new resolution (rather than "two new resolutions") for the sole purpose of removing any language related to authorization to sign grant applications recognizing that such authority is outlined in the County Manager's grant coordination procedure in the Practices and Procedures Manual. (Staff request) Replacement pa.qe for Item 8A: Replacement pages have been provided for Page 50 of this item. The total square footage for general government building impact fee inventory is 582,258. (Staff request) Time Certain Items: Item 7A to be heard immediately followinq Item 7B, Wednesday, March 10, 2004. ADA-2004-AR-5218 Pelican Bay Foundation, Inc., represented by Robert D. Pritt of Roetzel and Andress, request an appeal to official interpretation INTP-2003-AR- 4307 relating to the approval of SDPA-2001-AR-412 for the Cap D'Antibes Condominium Project, Waterpark Place, within the Pelican Bay DRI-PUD. This appeal is pursuant to Collier County Land Development Code (LDC) Section 1.6.6. (Petitioner request.) Item 7B to be heard at 9:00 a.m., Wednesday, March 10, 2004. ADA-2004-AR 5218 Pelican Bay Foundation, Inc., represented by Robert D. Pritt of Roetzel and Andress, requesting an appeal to official interpretation INTP-2003-AR-4307 relating to the approval of SDPA-2001-AR-421 for the Cap D'Antibes Condominium Project, Waterpark Place, within the Pelican Bay DRI-PUD. This appeal is pursuant to Collier County Land Development Code (LDC) Section 1.6.6. Item 10A to be heard at 1:30 p.m. Review the written and oral reports of the advisory boards and committees scheduled for review in 2004 in accordance with Ordinance No. 2001-55, including the Citizens Advisory Task Force, Collier County Code Enforcement Board, Contractors Licensing Board, Golden Gate Parkway Beautification Advisory Committee, Immokalee Beautification Advisory Committee, Isles of Capri Fire Control District Advisory Board, Parks and Recreation Advisory Board, and Collier County Water and Wastewater (Utility) Authority. March 9 & 1 O, 2004 Item #2B through #2F MINUTES OF REGULAR MEETING OF FEBRUARY 10, 2004; LDC SPECIAL MEETING OF FEBRUARY 11, 2004; TRI- COUNTY MEETING OF FEBRUARY 17, 2004; DISTRICT 2 TOWN HALL MEETING OF FEBRUARY 18, 2004; AND EVERGLADES CITY WORKSHOP OF FEBRUARY 25, 2004- APPROVED AS PRFiSF, NTF, D COMMISSIONER HENNING: Make a motion that we approve the February 10th, '04, BCC regular meeting; February 1 lth, '04, BCC/LDC meeting; February 17th, '04, tri-county meeting; February 18th, '04, BCC/District 2 town hall meeting; and February 25th, '04, BCC/Everglades City workshop. COMMISSIONER HALAS: I second that. CHAIRMAN FIALA: Okay. I have a motion on the floor and a second for the approval of the minutes for the five meetings stated. All those in favor, say aye. COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: Opposed, like sign. (No response.) CHAIRMAN FIALA: Very good. Passes, 5-0. Item #4A PROCLAMATION RECOGNIZING THE WEEK OF MARCH 7-13, 2004, AS KNOW YOUR COUNTY GOVERNMENT WEEK- Page 12 March 9 & 10, 2004 ADOPTED Now we go on to our proclamations, and I have the privilege and honor of presenting the first one to be accepted by Cody Martin, student at Naples High School, and Jose Nunez, student at St. John Neumann. Would you please come up and stand here for me. And you can face the audience, as embarrassing as it is. Good morning. Proclamation: Whereas, Collier County government is a complex and multifaceted process which affects the lives of all residents of Collier County; and, Whereas, an increased knowledge of how various aspects of county government work can enhance an individual's quality of life in Collier County; and, Whereas, it is desirable for all county residents to be knowledgeable of the county's government and how it works; and, Whereas, the League of Women Voters of Collier County, Collier County University Extension/4-H Youth Development, and the Collier County Public Schools have co-sponsored the Know Your County Government Teen Citizenship Program for 25 years. Now, therefore, be it proclaimed by the Board of County Commissioners of Collier County, Florida, that the week of March 7th to the 13th, 2004, be designated as the 25th anniversary of the Know Your County Government Week. Done and ordered this 9th day of March, 2004, Board of County Commissioners, Donna Fiala, Chairman. I make a motion to approve. COMMISSIONER HALAS: Second that. COMMISSIONER COYLE: Second. CHAIRMAN FIALA: I have a motion and second. Page 13 March 9 & 1 O, 2004 All those in favor? COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: (No response.) CHAIRMAN FIALA: (Applause.) And opposed, like sign. Thank you very much. CHAIRMAN FIALA: I want to shake your hand. COMMISSIONER COYLE: Congratulations. CHAIRMAN FIALA: You know, it does your heart good to see all these shining nice faces, doesn't it? You read -- you read things in the paper, but you see a whole group of really great kids that represent our community, and we're all proud of you. Thank you. MR. NUNEZ: Good morning, Commissioners. CHAIRMAN FIALA: Good morning. MR. NUNEZ: Jose Nunez, and we wish to thank you, the Commission, County Manager, and all county divisions and department heads, the constitutional officers and staff and volunteers of the Collier County University of Florida, IFAS Extension, 4-H Youth Development Program, Collier County League of Women Voters, and Collier County Public Schools who have made -- who have worked together to make the Know Your County Government Program possible as we celebrate our 25th year. Twenty-nine high school students from throughout the county are participating representing Naples, Barron Collier, Immokalee, Gulf Coast, Lely, St. John Neumann, and home-schoolers as well. During the past three weeks, we have traveled our county and learned about our county government. This is my second year, and Page 14 March 9 & 1 O, 2004 just when I thought I was as knowledgeable as any 17-year-old should be about county government, I learned many new things, as I'm sure you, the commissioners, learn something new about our county and its people every day. We visited the county museum, Domestic Animal Services, the supervisor of elections, Emergency Management Department, the Water Treatment Plant, the landfill, and we've made a special trip to Immokalee. We also met some of our constitutional officers and county heads. My favorites are, as always, Sheriff Hunter and our tax collector, Guy Carlton. Sheriff Hunter gave us a very in-depth look into county government -- into county law enforcement -- excuse me -- task forces and special assignment units, such as SWAT and drug enforcement units. We then toured the 911 Emergency Response Unit. We then visited our tax collector, Guy Carlton, where we learned the Tax Collector's Office does much more than simply manage taxes; it also manages the Department of Motor Vehicles and it issues all sorts of licenses, from boaters to hunting to distribution of disabled parking permits. We also visited the Water Treatment Plant and the landfill. Both of these facilities are very humbling, as we take for granted that our trash is picked up, and every day we have running water for whatever needed. The workers at these facilities are just as instrumental as our county heads, because although we would be a mess without our commissioners, we would literally be a mess without our landfill and without running water. We also met with the public services director, John Dunnuck. Mr. Dunnuck oversees many departments in public services and gives equal attention to each, which is not an easy task. Page 15 March 9 & 10, 2004 One of the goals of the Public Services Division is to make Collier County a great place to visit and an even better place to live. We all agree that the Public Services Division has done just that. This morning we're looking forward to seeing the Commissioners in action, visiting the Clerk of Courts and a courtroom and especially to having lunch with you and celebrating the 25th year of the Know Your County Government Program. During this week, there has been one common factor within all of these departments and divisions that we visited, and that's growth. All the individuals we met work hard and efficiently every day to keep Collier County from being consumed by this growth. Collier County is a great place to grow up, and I'm glad I've had the opportunity to participate in this program and be an active member of this community. MR. MARTIN: My name is Cody Martin. We've learned about some of the challenges facing Collier County. Rapid growth has brought several other important issues that must be dealt with. Simply housing residents is a tremendous task. Also providing the basics, such as water management, electricity, waste management, roads for increased traffic, and health services become increasingly problematic as our county grows. As our county sees more and more development, proper land use and enforcement of building regulations needs to be given more attention. Lastly, care and control of the animal population. As the number of unneutered animals, particularly cats and dogs, rises, so does their abuse and neglect. A program is being instituted to spay and neuter most of Naples in order to decrease the population of stray and unwanted animals in -- excuse me -- Collier County. We're also looking forward to our trip to the courthouse, meeting Page 16 March 9 & 10, 2004 with the Clerk of Courts, and our lunch with you, the county commissioners. In addressing the board, we are able to add another component to our learning process. Again, thank you for the opportunity to take part in this program and for everything you do, Commissioners, constitutional officers, and dedicated county staff. Thank you. CHAIRMAN FIALA: Thank you. Item #4B PROCLAMATION DESIGNATING THE WEEK OF MARCH 8-13, 2004 AS HABITAT FOR HUMANITY'S BUILD A BETTER FI ITl IRFJ WFJFK - ADOPTFD Our next proclamation is to designate the week of March 8th to the 13th as Habitat for Humanities Build a Better Future Week, to be accepted by Dr. and Mrs. Sam Durso and read by -- COMMISSIONER HALAS. Frank Halas. CHAIRMAN FIALA: -- Frank Halas. COMMISSIONER HALAS: Would Dr. Durso and Maryanne Durso please come forward. These two people are very actively involved. In fact, they're the people that basically established Habitat for Humanity here in Collier County. At this time I'd like to read this proclamation. Whereas, it's been identified that within Collier County there is a need for more than 20,000 affordable housing units; and, Whereas, the valued residents of our community who need affordable housing serve its people and the businesses that are the economic backbone of our county; and, Page 17 March 9 & 1 O, 2004 Whereas, the average sale price of a home in Collier County is more than $330,000 (sic); and, Whereas, the Habitat for Humanity International was established in 1976 to guarantee that every individual have the opportunity of owning a decent place to -- in which to live; and, Whereas, the Habitat for Humanity affiliate of Collier County was founded for the purpose of addressing the needs of affordable housing within the borders of our county for the very low-income families; and, Whereas, since its establishment as an independent affiliate in 1978, the community of Collier County, including its people, churches, businesses, government, and philanthropic partners have joined together in constructing 600 homes and providing shelter for more than 3,000 individuals in our county and its communities; and, Whereas, the commitment of our county and the people who reside in it, is to work in a partnership to address all matters of social needs for the betterment of the community for which it has chosen to be part of. Now, therefore, be it proclaimed by the Board of County Commissioners of Collier County, Florida, that March 8th to March 13th, 2004, be designated as Humanity -- Habitat for Humanity Build a Better Future Week within Collier County Florida, for the purpose of recognizing the success and achievements of the internationally-recognized committed to building community infrastructure throughout the world and within the confines of our county. Done on the order of this 9th day of March, 2004, Board of County Commissioners, Collier County, Florida, Donna Fiala, chairperson, and I move that we adopt this proclamation. CHAIRMAN FIALA: Second. All those in favor, say aye. Page 18 March 9 & 10, 2004 COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: (No response.) CHAIRMAN FIALA: And opposed, like sign. Thank you. Congratulations. Congratulations to us for having you, right? (Applause.) COMMISSIONER COYLE: Thank you very much. COMMISSIONER COLETTA: Thank you. CHAIRMAN FIALA: We need you to take a picture with us. COMMISSIONER COLETTA: Need a picture? CHAIRMAN FIALA: Yes. You want to say a couple words? DR. DURSO: Sure. Thank you very, very much. We've been doing this for a long time, and our plan is to be up here for a long time in the furore. Six hundred homes in 26 years sounds great. We did 500 in the last 10 years. We did 110 in the last year. We had a dinner last night for our big donors, and I challenged them last night to help us raise the money to do the next 1,500 homes in Collier County in the next 10 years. That's our goal, so you're going to see a lot of us, and we need lots of cooperation from the county commissioners and staff. And if you guys help us, we think we can do it. And there certainly is a need for those 1,500 homes, so -- that's our challenge now, 1,500 homes in the next 10 years, okay? Thanks very much. (Applause.) Page 19 March 9 & 1 O, 2004 Item #4C PROCLAMATION RECOGNIZING THE MONTH OF MARCH, 2004 AS INVASIVE EXOTIC'S CONTROl, WEEK- ADOPTED CHAIRMAN FIALA: The next proclamation to recognize the month of March, 2004, as Invasive Exotics Control Week, to be accepted by Melissa Hennig, environmental specialist for Collier County. And Jim Coletta will -- will read this proclamation. COMMISSIONER COLETTA: It's my honor, Madam Chair. Whereas, the quality of life and the economic and ecological well-being of Collier County are significantly dependent on the county's natural resources; and, Whereas, invasive exotic plants pose a significant threat to the county's natural resources with certain plants causing safety and health problems to county residents; and, Whereas, the county -- Collier County Parks and Recreation, facilities management, solid waste, transportation, water, wastewater, and museum departments have upcoming and ongoing exotic vegetation removal projects; and, Whereas, the Environmental Service Department will be removing invasive exotic plants from county-owned properties during the week of March 14th, 2004; and, Whereas, during the month of March, 2004, two Collier County libraries will host presentations about invasive exotic plant control. Now, therefore, be it proclaimed by the Board of Collier County Commissioners of Collier County, Florida, that the week of March 14th, 2004, be designated as Invasive Exotic Control Week. Done and ordered this, the 9th day of March 2004, Donna Fiala, chairperson. Thank you. Page 20 March 9 & 1 O, 2004 And I make a motion for approval. COMMISSIONER HALAS: I second it. CHAIRMAN FIALA: Second. Okay. There's a motion on the floor by Commissioner Coletta, second by Commissioner Halas. All those in favor, say aye. COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: And opposed, like sign. (No response.) CHAIRMAN FIALA: Thank you for being here. (Applause.) MS. HENNIG: I would like to thank the board for proclaiming the week as Invasive Exotics Control Week. It is an important environmental issue, and it's always important to raise awareness in the community about invasive exotic plants. I'd also like to thank not only all of the county departments that are doing a wonderful job with their exotics vegetation removal, but also all of the local government agencies and nonprofit organizations, businesses and citizens in Collier County who are also taking the task of treating their invasive exotics. Thank you. CHAIRMAN FIALA: Thank you very much. Item #4D PROCLAMATION TO HONOR THE COUNTY'S ACHIEVEMENT, THE 500TM AED FROM EMS TO BE Page 21 March 9 & 1 O, 2004 DEDICATED TO THE W. HARMON TURNER BUILDING IN THE COLLIER COUNTY GOVERNMENT COMPLEX, THE SYMBOLIC LOCATION OF WHERE THE PROGRAM BEGAN- ADOPTED Our last proclamation this morning is to honor the county's achievement, the 500th AED -- excuse me -- from EMS to be dedicated to the W. Harmon Turner Building in the Collier County Government Complex, the symbolic location of where the program began. To be accepted by Noemi Diaz, captain of Emergency Medical Services for Collier County, and Commissioner Henning will read this proclamation. COMMISSIONER HENNING: Whereas, nearly 700 Americans die each day from sudden cardiac arrest and 250,000 patients die each year; and, Whereas, nationally 95 percent of those who suffer from cardiac arrest die from (sic) their reach-- when they reach the hospital; and, Whereas, the American Heart Association emphasizes that access to quick, quality emergency medical care improves the survival and recovery of cardiac arrest patients dramatically; and, Whereas, recovering (sic) that proactive health care is critical, the board established an Advanced External Defibrillator (sic) (AED) ordinance, May 12th, 1998; and, Whereas, EMS deployed the first AED to the Collier County Sheriff's Office on July 1st, 1989 (sic); and, Whereas, AED machines allow paramedics, firefighters, trained citizens in the community and law enforcement officers to respond quickly to patients in cardiac arrest; and, Whereas, today EMS county personnel (sic) and the communitY -- to effectively use the lifesaving machines at over 230 locations throughout the community; and, Page 22 March 9 & 1 O, 2004 Whereas, Collier County presently has 499 AEDs in operation, making it one of the most successful programs in the United States. Now, therefore, be it proclaimed by the Board of Commissioners of Collier County, Florida, that the honored (sic) -- county's achievements, the 500 (sic) AED from EMS to be dedicated to the Harmon Turner Building in Collier County Government Complex, a symbolic location of where the program began. Done in this order, 9th day of March, 2004. Signed by our chairman, Commissioner Fiala. And Commissioner, I make a motion that we accept this proclamation. COMMISSIONER COYLE: Second. CHAIRMAN FIALA: I have a motion on the floor by Commission Henning, second by Commissioner Coyle. All those in favor, say aye. COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: (No response.) CHAIRMAN FIALA: (Applause.) And opposed, like sign. Thank you very much. MR. AGUILERA: Madam Chair? Go ahead? For the record, George Aguilera, division chief for the Collier County EMS Department. CHAIRMAN FIALA: George, would you like to come up and take a picture with us? MR. AGUILERA: No, go ahead. Good morning. For the record, George Aguilera, division chief Page 23 March 9 & 1 O, 2004 for the Collier County EMS Department. Just a brief-- I thank the board, county commissioners, county manager's office for this proclamation. In 1989 Collier County became the first county in the United States to actually have adopted an ordinance to establish a very aggressive yet coordinated plan to deploy these defibrillators, these lifesaving machines throughout the community. It continues today to be the primary model that's being used by other communities and municipalities in the country as -- what they're using in order to establish their community AED program. So it's something that we're very, very proud of. We're ecstatic to have reached our 500th, which was our benchmark we established in 1998. I'm sorry, I said '89 (sic); '98. We will now retool our benchmark and we'll hopefully be back in front -- when we hit 1,000. We're going to continue this aggressive deployment. It's been a tremendous benefit for the community. And, again, we want to thank you for your support. And with that, we'll do the official hand-off of the 500th AED. (Applause.) CHAIRMAN FIALA: Thank you very much. Item 8(A). MR. MUDD: Ma'am, that's adoption of ordinance amending chapter 74 of the Collier County Code of Law and Ordinances, as amended by ordinance number 2001-13, the Collier County Consolidated Impact Fee Ordinance as amended, providing for the adoption of a general government building impact fee with a delayed effective date of April 1st, 2004. And Mr. Schmitt will present. MR. SCHMITT: Go to the next item. They're not here. MR. MUDD: Mr. Chairman (sic), the -- Mr. Tindale, who's the presenter who is the contractor that did the impact fee isn't here in the Page 24 March 9 & 1 O, 2004 audience today, and Mr. Schmitt has asked that this item -- CHAIRMAN FIALA: Oh, here he is. MR. MUDD: Well, I take everything back that I just said. MR. TINDALE: I was standing out there waiting for you-all to call us. I need to set the computer up. Can I have a minute to do that, or-- COMMISSIONER HENNING: Let's go to the next item. Item #8B ORDINANCE 2004-15 RE PETITION PUDZ-03-AR-4528, ROBERT DUANE OF HOLE, MONTES, INC., REPRESENTING KEVIN RATTERREE OF GLH DEVELOPMENT, L.L.L.P., REQUESTING A REZONE FROM "PUD" TO A "PUD" PLANNED UNIT DEVELOPMENT TO BE KNOWN AS THE TERAFINA PUD LOCATED ONE MILE NORTH OF IMMOKALEE ROAD AND ON THE NORTH SIDE OF THE OLD CYPRESS PUD, CONSISTING OF 637 ACRES- ADOPTED MR. MUDD: Let's go to the next item, and that is 8(B), and that's 17(B), and that item was -- was brought forward off the summary agenda. And this item requires that all participants be sworn in and ex parte disclosure be provided by commission members. It's petition PUDZ-03-AR-4528, Robert Duane of Hole Montes, Inc., representing Kevin Ratterree of GLH development, L.L.L.P., requesting a rezone from PUD to a PUD, Planned Unit Development, to be known as the Terafina PUD. The purpose is to eliminate the golf course tracts, reconfigure the land use tracts, updating the transportation commitments, revise the development standard, and to provide for wellfields and additional landscaping for property located approximately one mile north of Page 25 March 9 & 10, 2004 Immokalee Road, County Road 846, and on the north side of Olde Cypress PUD in section 16, township 48S, range 26E, and consisting of 637 acres. CHAIRMAN FIALA: Who will be presenting? COMMISSIONER HENNING: Why don't we go to the speakers? CHAIRMAN FIALA: Okay. Would you like to go to the speakers first? Very good. MS. FILSON: The first speaker is Susan Dinino. She will be followed by Meggan Davis. COMMISSIONER COYLE: Do you have to swear them in? CHAIRMAN FIALA: Oh. I'm sorry, yes. We do have to swear them in. Thank you. Could you swear these people in. They're way in the back. (The speakers were duly sworn.) MS. FILSON: Susan Dinino. CHAIRMAN FIALA: Well, now, we would have to -- we would have to state -- oh, we've already done on the record -- MR. WEIGEL: We've already done that. CHAIRMAN FIALA: Okay. Very good. MS. FILSON: She will be followed by Meggan Davis, who will be followed by Carol Wilsey. MS. DININO: My name is Susan Dinino, and I'm a resident of Santorini section of the Olde Cypress. This is the community directly to the south of the proposed GL Homes, Santorini, Terafina PUD. I am here today because the plans that have been outlined for the portion of Terafina that will border our development will increase a hardship on all the residents on the north border of Olde Cypress. They are being -- what are -- you are being asked to approve will create a potential for a development that violates our rights to privacy, Page 26 March 9 & 1 O, 2004 a potential habitant for those with a peeping tom mentality. The development, as we have been told by GL Homes, sits on land that is naturally about three feet higher than Olde Cypress. When the homes are built along the south border, they will be 18 to 24 inches above the crown of the road. That means that the base level of each home will already be five feet above ours. GL Homes wants our homes to -- wants those homes to be 30 feet from the property line. They are proposing two-story homes there on the back border of San -- like they have on the back border of Santorini Lakes. This, they tell us, is because that will increase the profitability by placing these homes in this area. The problem with this scenario is that the second story of these homes will then be approximately 20 feet above our homes. Even with the wall that has been proposed, we are inviting those residents to look inside our bedrooms and our pools. They won't need binoculars to see us either. There will be at least 10 women living in these homes along this border with children and grandchildren as well. These homes were originally proposed to be looking into green space, a golf course. We are not telling GL Homes that they can't build their homes there. We are -- or to take their golf course out. We are asking for our rights to privacy. We neither (sic) need the two-story homes to be moved to another area or to be -- have the privacy landscaping along the south border, at least 20 feet minimum in height. Thank you for your time. MS. FILSON: Meggan Davis. She will be followed by Carol Wilsey. MS. DAVIS: Good morning, Commissioners. My name is Meggan Davis. I -- I'm the president of the Longshore Lake Board of Directors, our foundation. Page 27 March 9 & 1 O, 2004 I wanted to come today to speak to you about GL Homes' petition for -- to amend their PUD. We're in support of it in Longshore Lake. The change from golf courses to lake without a change in any of their density is acceptable to us. Also, we've been in negotiations with GL Homes for almost -- almost a year to provide relief for us from the Logan Boulevard Extension, which runs along the eastern side of our community. GL Homes and Longshore Lake have entered into a formal agreement for GL Homes to construct an eight-foot wall, irrigation, landscaping, possible egress. Now, this -- this comes at no cost to our homeowners and will provide the needed relief that the 95 homes on our eastern border need from the traffic on Logan Boulevard Extension. An eight-foot wall will mitigate against sight and sound of that traffic. And this is at no cost to our homeowners, so this is a wonderful benefit to us. We found GL Homes to be responsive. We've had weekly to biweekly telephone calls with them. Just as an aside, when we got to the endpoint where we were just about ready to sign and found out that our dated irrigation system could not -- we couldn't take on the additional irrigation on the other side of the wall, GL Homes also agreed to drill a well for us so that we would be able to take care of our maintenance commitments to the county to maintain that land on the other side of the wall. We will enter into a maintenance agreement with the county to take care of the landscaping that is to be placed on the eastern side of the wall that will front onto the Logan Boulevard Extension. So just as an aside, we found that GL Homes is really interested in building relationships with their neighbors, and we're delighted with our dealings with them so far. And our wall is contingent upon approval from the county. So Page 28 March 9 & 1 O, 2004 their request to you today, if it's approved, that means that we get our wall, and within 30 days they'll be in a design phase. So we ask you to approve their petition. Thank you. MS. FILSON: The next speaker is Carol Wilsey. She will be followed by Brad Comell. MS. WILSEY: I do have some handouts for you. Good morning, thank you. For the record, my name is Carol Wilsey. I am the president of the Olde Cypress Homeowners' Advisory Council. We're here to ask you to continue the same construction traffic stipulations you made at the county commission meeting in September when the Parklands PUD was approved. At that time you asked Mr. Bassinet, the attorney representing Ronto, to build a construction access road from Bonita Beach south to provide for fill trucks to come from the north down to their development, rather than from the south up the already-congested Immokalee Road. As you know, Ronto's Parklands and GL's Terafina abut one another. Mr. Ratterree has told us in numerous meetings with our developer, Brian Stock, that they project the need for approximately 1,200 to 1,250 fill trucks during the course of their development. I have here photos of the Logan Extension now under construction so you can see how inadequate this road will be to the traffic already projected for it, let alone as the major avenue for 1,250 huge dump trucks. The road won't stand up to that beating, and our residents will be endangered, which is what we have argued all along. We have spoken with Kevin Ratterree at length, and he did agree, outside of commission chambers after the Collier County Planning Commission last month, that if the construction access road from Bonita Beach Road were in place by the time his fill is needed, then Page 29 March 9 & 10, 2004 he would at least compare fill prices from sources to the south to those from the north. I would like him to go even further and ask you to make GL Homes comply with the same request stipulation that you have given Ronto. Their fill trucks need to come north from Bonita. It's wider there. This is even more critical when you consider the traffic mess that we have on Immokalee Road now and what it will be in the next two years when six-laning begins. That will coincide when -- with -- that will coincide with when GL's trucks want to come up Immokalee to Logan. We will have such a traffic nightmare that none of us who need to get to work in the morning will even be able to leave our development. And, of course, this doesn't even come close to the noise, dust, and debris problems that are attendant with construction traffic. Also, as you look at these photos, remember that Ronto's Parklands plan calls for a hundred feet of right-of-way for their road to the north. That's where they have the access road requested. We only have 60 feet, and as you can see, that road's only 24 feet wide right now. I've had photographs taken with big trucks on there so you can understand with a 30-mile speed limit and the narrow width of that road and the proximity to the homes that we have there -- we aren't going to get a wall except on one very small portion. The road can't take it. That road, construction access road north would be much better equipped to handle the heavier traffic that construction would dictate than ours will. Safety, security, and inherent right to privacy. That's what we're asking for today. We're not asking that you not approve the density of the development, we're not asking that you not approve the development. We're asking for stipulations on two stories, as Susan Dinino asked, Page 30 March 9 & 1 O, 2004 and we're asking for stipulations on no construction traffic up Logan. That's it. Thank you. MS. FILSON: Your final speaker is Brad Cornell. MR. CORNELL: Good morning, Commissioners. Brad Cornell with Collier County Audubon Society. I'm here to talk about traffic from a little bit different perspective, and that is, that we all understand the traffic is a big issue in Collier County. We've had problems, it seems like, more than ever this season. And I would like to point to one very prominent source for that problem, that is, gated communities where everybody has to come out a single entrance and get onto all -- everybody has to get onto the same roads. And I think that this project, the PUD, while I'm supportive of them losing their golf course -- ! think we have enough golf courses -- I think that should have afforded them the ability to redesign and reconfigure their project in a way such that you would have your commercial area that's a tiny little spot in the middle of that project accessible to the general public on the outside and be a more viable commercial center. The way it's designed now, it's designed to fail. That commercial will not succeed. It will be gone very shortly. And so, you're not going to have any mixed use in that -- in that community, and all those people are going to be going out on Logan Boulevard, down to Immokalee Road and adding to the problem that we already know exists. I think that this PUD, and the whole idea of a PUD affords us the opportunity to encourage good design, good planning for a project, and I don't see it there on that project. So I have to say that I'm very disappointed in that design. I think it's going to exacerbate our road problem, incrementally, but for sure. And just one other point on traffic. I think that this project, Page 31 March 9 & 10, 2004 especially with no golf course now, could have been redesigned to have better internal and external interconnections, because that's another principle of good road and traffic design. And I would encourage us to be looking at -- at that and for those in PUDs that come before you. Thanks very much. MS. FILSON: That was your final speaker. CHAIRMAN FIALA: Okay. Fine. GL Homes is here to talk with us. Yeah, you can come over here to this one. I think they're trying to get that thing in order. MR. RATTERREE: Good morning. For the record, my name is Kevin Ratterree, vice president with GL Homes. I'm going to leave the peeping tom comment for what it is. But let me just address a couple of issues that have come up from the speakers this morning. First and foremost, we have been working very diligently with our adjoining property owners' associations and trying to mitigate, not only the impact of our development, but also the impact of the extension of Logan Boulevard, which was a commitment made by Ronto with their Parklands DRI extension that came before this board. Quail Creek Community Association, Longshore Lake's community association, and Olde Cypress Homeowners' Association, granted still under the control of the developer, have all supported this project. We have agreed to upgrade the landscape buffer along our south property line in the tune of 150 percent above what your code required landscape buffer is. That includes the combination of Olde Cypress' landscape area with our landscape area to create a cumulative total 30-foot berm, a six-foot wall, native trees, and palm trees that are far in excess of what code required buffers are. The elevations of our community are set by South Florida. Page 32 March 9 & 1 O, 2004 They're not set by us. We have no control over where our finished floor elevations are, but the design program that we worked very diligently with Olde Cypress on was to come up with a program that allowed us to maximize the 30 feet in question. Some of the comments that were made are actually factually incorrect, so let me clarify them for the record. Our rear setback for our houses along our south property line are 20 feet. In addition to that 20 feet, there is a designated 15-foot landscape buffer tract. So you have a cumulative total of 35 feet from what is our south property line to our nearest home. On Olde Cypress' side, they have a 15-foot landscape buffer, and then they have their respective setbacks. What is being asked of this commission is to basically make a determination that a single-family residential project abutting a single-family residential project is somehow incompatible with one another. There is no restriction on Olde Cypress as to single-story and two-story houses, yet they're asking you to put that restriction on us for our own houses. We have found that to be extremely damaging in a marketability standpoint, because people want to buy the house that they want to buy and not be told the type of house that they can buy. With regard to construction access, Logan Boulevard is our access. I've tried to make it as clear as I could from day one that if the extension from Bonita Beach is open and the cost of fill coming from the north is cheaper than the cost of fill coming from the south, then we will obviously make a business decision to come from the south. But to restrict our development to say you can only come from the north when the road doesn't exist and we have no idea how the fill or where the fill is going to come from today is an extremely onerous commitment on our part. And on top of that, I totally disagree with what Ronto's commitments were. Ronto agreed that they would come to the south, Page 33 March 9 & 1 O, 2004 but there is no obligation that they come from the north -- exclusively from the north. They still have the ability of making that decision. I wanted to clarify that for the record. Any other questions, I'll be happy to answer. Yes, sir. CHAIRMAN FIALA: Commissioner Henning? COMMISSIONER HALAS: Oh. CHAIRMAN FIALA: Commissioner Henning? COMMISSIONER HENNING: The-- yeah, and I appreciate the ability to clarify some of those issues, you know, the two-story, one-story type thing. But you were willing to landscape on the other side of the wall, and I don't think that's a requirement by our code. Are you willing to take that landscaping and fill in on the north side of the wall, you know, where the two stories might be? And we won't worry about the landscaping on the south side, because the developer is required to have a landscaped buffer. Olde Cypress is required to have a landscaped buffer on their side anyways as part of their PUD. MR. RATTERREE: The design program that we came up with was worked in cooperation with us and the representatives from Olde Cypress, so we've committed to do that improvement. The program that's in the backup material in front of the board includes landscaping on both sides of the wall. What we basically took was a type D landscape buffer, which was one tree every 30 feet on center, went to staggered one tree 20 feet on center on both sides of the wall and put palms on both sides of the wall in 60-foot clusters, so we actually have agreed to put that landscaping on both sides. So, unfortunately, I've made that commitment to Olde Cypress that I will landscape on their side, so -- unless there's a direction from the commission. Otherwise I will fulfill my obligation and commitments to that association. COMMISSIONER HENNING: Okay. The -- the next thing, I Page 34 March 9 & 10, 2004 know that we cannot -- we'd have to do a Growth Management Plan amendment to open that commercial up to the public creating a commercial node over there. That could be very problematic with the Growth Management Plan. The idea of creating commercial within a PUD is try to capture trips. The one thing -- and I talked to Mr. Ratterree about the flow way, the Mirasol flow way. You're committed to be a participate -- participant in that? MR. RATTERREE: Yes, sir. COMMISSIONER HENNING: In what way? MR. RATTERREE: There is an executed tri-party agreement between Mirasol, Olde Cypress, and the developer of Terafina to participate in the construction of the flow way program inclusive of the water channel and all necessary permits. Mirasol has submitted the permit application for the flow way inclusive of those three projects, and we are committed to participate in that program. COMMISSIONER HENNING: If the board is willing to accept the amendment as written, would you be willing to put in part of the stipulations that your commitment, your -- today's commitment to the flow way restoration? MR. RATTERREE: Absolutely. CHAIRMAN FIALA: Commissioner Halas? COMMISSIONER HALAS: Yes. They talked about -- I can't see placing this traffic burden on our neighbors to the north, which is Lee County, since all this property basically is encompassed within Collier County. One of the concerns that was brought up was the heavy construction traffic that would be on the road. If there was any damage to the road, would you make concessions that you would repair the road after the build-out? MR. RATTERREE: Yes, sir. If it's -- if it's our trucks that are Page 35 March 9 & 1 O, 2004 doing damage to the road, we would repair the road. COMMISSIONER HALAS: Okay. Also the landscaping buffering that you're talking about, what's your best guess for how quick that would mature so that it wouldn't be a problem with the neighbors to the south? MR. RATTERREE: We agreed to upgrade the landscape heights initially on the installation anyway. Your code required (sic) 10 feet. We went to 14-foot heights on the native trees. We would install that landscaping as part of the development of the pods along the southern property line. COMMISSIONER HALAS: So you're saying that the -- the trees that you're going to put in place there are going to be of the mature quality, and that's going to be next to your property line, and then we're talking -- you've got a 20-foot buffer from where the landscaping is going to be taking place versus where the first home will be built; is that correct? MR. RATTERREE: That is correct, the rear setback on those houses is 20 feet. COMMISSIONER HALAS: And what do you anticipate that the -- upon maturing of these trees, what the height is going to be? MR. RATTERREE: These are traditionally like a live oak type quality tree, and those can range anywhere from 30 feet to 60 feet in height at maturity. COMMISSIONER HALAS: And we're talking maturity, what's the time frame from the time you place the 14-foot trees in? MR. RATTERREE: If you get a good amount of rainfall during the course, or a normal amount of rainfall, they generally grow about a foot to a half foot a year. COMMISSIONER HALAS: Okay. Thank you. CHAIRMAN FIALA: Okay. Excuse me. May I ask our transportation manager something? Page 36 March 9 & 10, 2004 COMMISSIONER HENNING: Just got promoted, Norm. CHAIRMAN FIALA: No, I think I just demoted him, didn't I? He's really our transportation administrator. MR. FEDER: Madam Chairman, any name. CHAIRMAN FIALA: Mr. Feder? MR. FEDER: Go ahead. CHAIRMAN FIALA: Mr. Feder, do you have any problems with the construction traffic using Logan Boulevard? MR. FEDER: I think the applicant made it clear that they will tend to the roadway for any damage that they cause. I'm not sure, although we might like it, that we can dictate exactly which direction the truck traffic come within. I think you've worked with hours of the day overall in the nature of haul traffic, and I think the critical aspect, that they try to be sensitive to the community and make sure that they make a strong commitment to bringing the roadway back up to condition in any damage that they might create. CHAIRMAN FIALA: Okay. Thank you very much. MR. FEDER: Thank you. CHAIRMAN FIALA: Any further discussions, Commissioners? Commissioner Henning? COMMISSIONER HENNING: Before I make a motion, the canopy trees, is there any way that we can try to locate them, if they are going to be two stories, to buffer those single-family residents on the south side? MR. RATTERREE: The commit -- the trees are going to be spaced 20 feet on center. COMMISSIONER HENNING: Right. MR. RATTERREE: If you get any closer than that, what happens is the tree will start to mature and then the branches are going to grow into each other. Twenty feet on center is a very tight spacing Page 37 March 9 & 1 O, 2004 to begin with, and that's generally -- once you do 20 feet on center, you're going to cover those gaps with the mature trees. COMMISSIONER HENNING: Okay. I understand the concerns from the neighbors to the south. I, Commissioners, have tried to -- tried to find other alternatives for a construction route, not knowing -- knowing that we cannot demand the developer to come in a certain way, I felt it was my obligation to look at alternatives. There are some impacts on the suggested alternatives, not only to environment, but to some other residents, so -- but I appreciate the cooperation of the developer to at least listen to the concerns of the residents. With that, I will make a motion to approve with the additional stipulation that Terafina -- or GL Homes, Saturnia (sic) Lakes, whatever it might be, will participate in the reconstruction of the flow way as committed to by GL Homes of this date, with the additional staff's re -- stipulations and the Planning Commissions' stipulations. COMMISSIONER HALAS: I'll second that. CHAIRMAN FIALA: Okay. I have a motion on the floor and a -- by Commissioner Henning, a second by Commissioner Halas. David, would-- MR. WEIGEL: I'll note that you have actually closed the -- closed the hearing at this point, although I don't believe that we do have -- staff wishes to make a comment, and then you may wish to close the public hearing. CHAIRMAN FIALA: Do you need to be sworn in? MR. BELLOWS: Yes. CHAIRMAN FIALA: Okay. (The speaker was duly sworn.) MR. BELLOWS: For the record, Ray Bellows. I just wanted to add to the record that the project has been found consistent with all the elements of the comprehensive plan and that staff has worked Page 38 March 9 & 1 O, 2004 diligently with the applicant in developing agreements for the flow way and for the extension of Logan Boulevard. The project has also -- the petitioner has also provided additional landscaping above and beyond the code requirements to help mitigate the impacts not only of this project but for the extension of Logan Boulevard. So, therefore, staff is recommending that this petition be approved, and the Planning Commission also unanimously recommended approval. CHAIRMAN FIALA: Thank you. And with that, we will close the public hearing. Thank you. And we have a motion on the floor and a second. Would you read that motion, David? MR. WEIGEL: Well, it's a -- COMMISSIONER HENNING: I can restate the motion. MR. WEIGEL: That would be fine. COMMISSIONER HENNING: Motion to approve with staff and Planning Commission stipulations adding one more, that GL Homes will participate in the flow way restoration reconstruction as agreed on by a tri-party agreement, of those agreements that is set forth today. CHAIRMAN FIALA: Okay. I have a motion on the floor and a second. COMMISSIONER HALAS: I -- CHAIRMAN FIALA: Any further discussion? COMMISSIONER HALAS: No. CHAIRMAN FIALA: Okay. All those in favor, say aye. COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. Page 39 March 9 & 10, 2004 CHAIRMAN FIALA: (No response.) CHAIRMAN FIALA: much. And opposed, like sign. We have a 5-0 on that. Thank you very MR. RATTERREE: Thank you. CHAIRMAN FIALA: And at lunch, Linda, we ought to try and discuss with the students what a flow way is. I bet that's kind of confusing if you've never heard of it before. Thank you. Thanks for being here. Okay. And we go back to 17 -- 7(A) -- I'm sorry. Item #8A ORDINANCE 2004-16 AMENDING CHAPTER 74 OF THE COLLIER COUNTY CODE OF LAWS AND ORDINANCES, AS AMENDED BY ORDINANCE NO. 2001-13, THE COLLIER COUNTY CONSOLIDATED IMPACT FEE ORDINANCE AS AMENDED, PROVIDING FOR THE ADOPTION OF A GENERAL GOVERNMENT BUILDING IMPACT FEE WITH A DELAYED EFFECTIVE DATE OF APRIL 1, 2004 - ADOPTED ON A GRADUATED BASIS OF THREE YEARS (75% FIRST YEAR, 85% SECOND YEAR, AND 100% THEREAFTER) AND TO INCI,I ~DE INDF. X1NG MR. MUDD: Commissioner, this goes back to -- CHAIRMAN FIALA: 8(A). MR. MUDD: -- 8(A). It's adoption of an ordinance amending chapter 74 of the Collier County Code of Law and Ordinances, amended by ordinance number 2001-13, the Collier County Consolidated Impact Fee Ordinance, as amended, providing for the adoption of a general government building impact fee with a delayed Page 40 March 9 & 1 O, 2004 effective date of April 1, 2004. And Amy Patterson will present, MS. PATTERSON: Good morning, Commissioners. I first want to apologize for missing our call to the podium earlier. Sorry about the confusion there. We're back today to re-present the information on our proposed general government building impact fee. We were before you on February 10th, and you asked that we come back and provide a little bit more explanation on some of the key points of this impact fee and the calculations. So I have here with us again Mr. Steve Tindale from Tindale, Oliver, which is a consulting firm that was selected to perform this study. And with that, I will turn it over to Mr. Tindale. MR. TINDALE: Good morning. I'll be much briefer this time than I was last time. I'll hopefully hit the highlights of questions that you had and some things that we've reviewed with you in the process. Basically, I want to just show you the formula again, talk a little bit about the level of service standard, talk about costs very briefly, the demand, the functional population was one you had the most question, and I've got a -- kind of a summary presentation from that. We've reviewed that with each one of you. I want to highlight, again, the need for annual indexing, and actually talk about some alternatives in terms of the implementation. The equation is the same equation you're using on all the other impact fees that you've adopted to deal with the cost per unit of development, and we give credit in terms of tax credit, and the difference is the impact fee. The areas that you're serving is your support buildings, court-related health, and the constitutional offices. The -- I think there was a comment made in a calculation made that about 80 percent of your first five-year program, close to that, is dealing with your constitutional officers, so that's just a note that we Page 41 March 9 & 1 O, 2004 found as we were going through it. I want to briefly talk about level of service because I think, besides it being used as an impact fee, there's been some, I guess, questions about how much service you're delivering and the need for it. The level of service calculation we're using, we've come up with about two -- almost two square foot per person in the county, is the current buildings that you've paid for in terms of general buildings. I had staff briefly look at the other impact fees that we've done and some across the state, and the range is two and a half to four and a half. So in terms of efficiency and the number of square feet that you've got per population, what we're seeing, you're anywhere from about 30 percent below everybody to almost half in terms of square foot per buildings. The other thing we're finding in other communities is about half to two-thirds of their buildings are still bonded. The buildings we're looking at, you've paid as you've gone. The people who are here have paid as you've gone through it. You don't have a major bonding commitment. So in terms of, I guess, a pat on the back, you look to be one of the most efficient, and also have paid for the buildings as you've gone, which I think that is an important issue to understand in terms of what you've done and the efficiency that you've developed over time. So the level of service standard is more than just what we put in the equation. It is a way to measure how you're performing. The next is the actual cost. And I'm not going to go into that in detail. I don't think anybody's had a complaint about the cost. The costs -- we've looked at historical costs, we've looked at your plan, and we looked at what you're getting ready to spend in terms of verifying those costs. We're using $184 per square foot. The master plan a few years Page 42 March 9 & 10, 2004 back was using 186. We're seeing in your five-year CIP, with all the things you're having to build along with the buildings to support them, you're averaging about $244 a square foot. So we don't have any concern at all that we're over-costing in terms of what we've got, at least in the impact fee itself. The -- one other comment I'll make about the buildings is you are leasing some space. When I was asked about level of service, my first reaction is, your level of service seems not to be very high at all in terms of 1.9. You are leasing some space, and this investment is really, in my mind, not getting bigger, it's becoming more efficient. Rather than spending the money on lease space, which is more costly, you'll be spending less money. So you're really not big compared to other people, but you've reached a point now with the requirements of leasing, and I think you've got to plan to try to transition over the next three to five years of not having leased that space. So I think the capital investment is more for efficiency than it is becoming bigger, and that's another comment I'd like to make. I'd like to briefly go over the functional population. That was the one, I think, we had the most questions about. The government building impact fee, basically if your government building provides service to both residential and nonresidential uses and support other departments. The residential side, I don't think there was any -- much of a question. We know how many people are there per home. We assume the people are there half time, and we come up with a number of residents per thousand square feet in a home. And I don't think that was the issue. The one we had the most problem was -- was the nonresidential and how we developed that, and I'm going to very briefly show a little chart here that kind of summarizes the information that we used. Page 43 March 9 & 10, 2004 We used two major sources. One is the Institute of Transportation Engineers, who has done hundreds of thousands of studies of how many cars arrive at every building by size, by type. We also have the National Personal Transportation study that knows how many people are in the car. So we start out with two really solid bases of information that is really used by your traffic engineers and people doing DRIs and studies in the county. The calculate -- we did it for office, retail, and the various uses, just as in the transportation impact fee, and I'm going to briefly go through the office to show -- just to show you the sequence of events. We take the ITE data, which tells us how many cars travel into a -- to a site every day, on a 24-hour basis, we combine that with the data that tells us how many people are in the cars, and we convert that to the number of persons every day that visits every site. We feel very comfortable we understand how many people go into a building every day at each different land use. We have a tremendous amount of data. So we go to persons. We take those persons, and we have to figure out how long they stay, determine how many -- how many average people are there during a day, so we had to convert those to employees and we have to -- to visitors. And, for example, in the office, we know there's 4.7 employees per thousand square feet per office, we subtract that from the total, and we have visitors and employees. We put the employees in there 40 hours a week, we put them -- the visitor in there one hour each day, five days a week, so we multiply it by the five hours. Well, now we're converting these persons to how many people are in there for a whole week. And basically we multiply those numbers, and we come up with 188 hours of employees, 33 hours of visitors. We total those two together, and that's the total hours in a week, the person hours, and we divide by -- we assume seven to six for the Page 44 March 9 & 1 O, 2004 office, and for the retail, it's nine -- excuse me -- 10 to nine at night, so it's a 55-hour week, and we come up with the 3.84, and that's how we do the office. So it's very straightforward. It seems to be a little -- little complicated, but the information's there, and it's very tight in terms of being statistically valid. Really, all we're doing is doing the transportation impact fee and substituting -- instead of having a trip length, we substitute person hours. And it's almost the same exact calculation. Briefly, in terms of just summarizing. The single-family home was very straightforward. We come up with a cost per person, the number of people per 1,000 square foot, and we come up with $159.60 for each 1,000 square feet. I want to highlight that in most communities they talk about a home. If that was a home, it would be about $400. I think that's some of the confusion. Sometimes you'll see a single-family home compared to office or retail, and this is a single-family home and 1,000 square feet. Now, why did we use 1,000 square feet versus per home? I would say of all the counties I've worked in -- and I've worked in many of them -- you're probably the most committed to dealing with affordable housing. I don't think I've seen any county any more committed that you are. And what we actually did for almost every one of your fees, is we converted from a single fee, which is a 2,500 square foot home, and we found data for the -- by size for homes, and that when a person builds 1,000 or 1,200 square feet home, they pay half the impact fee that people are paying all over the State of Florida. So that's the reason we've got -- and it seems a little convoluted compared to most people, but it's a commitment to the homes. As a matter of fact, in the transportation impact fee, we even found that Page 45 March 9 & 10, 2004 lower income people generate less trips, and you can apply for a lower impact fee if you meet a certain standard for income. Between that and your S.H.I.P. Funds, you've really done an outstanding job as far as dealing with affordable housing. This is the -- the end results, the residential fee is $159, which means the average home is about $400, the office is about a dollar a square foot, and the retail is about $1.40 a square foot. I'd like to, very briefly, talk about indexing. We're proposing you do that again. And one reason I want to highlight this is, we've got some alternatives in terms of maybe implementation alternatives. I want to highlight how important it is that you index, if you -- especially if you-- you need to index if you consider adopting a fee schedule and implementing it over time. If you implement over time, you need to be implementing to the index number as -- as the number goes up, and not a constant number. The engineering records showing building construction costs is going up about two percent a year. Your land values we've looked at from '93 to 2003, is about 11 percent a year. Every year you should have an annual index. The third year with a major update. The last thing I want to show is something we've done in multiple counties, and this just came from a feel from talking to the commissioners, and that is, you don't have to adopt 100 percent of the impact fees. You can stage it. You need-- if you do stage it, you need to -- if you say you -- you want to start at 75 percent and not 100 percent, you need to start everybody at 75 percent. You can't pick and choose without supplementing some revenues. So I've just given you some examples for residential, office, and retail. Starting out at 100 percent, if you vote on that today, the numbers you see there would be the dollar-- the 159, the 1,000, and the 1,400. Eighty-five percent, it would be 135, 900, and 1,199. And at 75 percent, it would be 119, 806, and 1,058. Page 46 March 9 & 1 O, 2004 Now, the reason I picked 85 and 75 is -- and I've done this all over the state -- 85 percent could be a three-year implementation. You go to 90, 95, and 100. The 75 percent, which I've seen done, is a five-year implementation. You go to 80, 85, 90, 95 and 100. So over time you actually adjust a fee to the perc -- to a percentage of the total. And, again, I'll remind you that you don't need to be -- you don't need to be inde -- to increasing these fees to your current number. When you get out there five years, you need to be indexing to the new number, the one -- the price that's going up. Because what happens if you don't do that, you propose to do this, and five years from now, you're only charging about 65 percent of what you need to be. So you need to combine the indexing and basically moving from a percentage of each year's amount. The next year -- if you start at 85 percent, next year it'd be 90 percent of a new number, of the index number. So that's an alternative for you to consider today. We've actually got some impact fee -- the, actually, attachment with the fee schedule, so if you decide to pick an alternative, we can simply slide that attachment in and you can adopt that today. That's the -- the summation of my report. Thank you. CHAIRMAN FIALA: Thank you. Do we have any speakers? MS. FILSON: Yes, ma'am. We have two right now. CHAIRMAN FIALA: Two speakers right now? MS. FILSON: David Ellis. He will be followed by Rich Weisberg. MR. ELLIS: Good morning, Commissioners. My name's David Ellis, and I'm with the Collier Building Industry Association. I'm here this morning representing our 1,200-member companies and over 20,000 working families and folks that work in our industry in Collier County. Page 47 March 9 & 1 O, 2004 We oppose the creation and the implementation of this government building impact fee. Although we're really not convinced of the technical merits and the rational nexus that's necessary for this fee, CBIA, we really oppose the implication that the fee's going to have for working families and expanding businesses in Collier County. Since 2000, 2001, when we really started looking at these impact fees and actually increasing them dramatically, a number of things have happened to the economics of our community. One thing, in looking at MLS, the Multiple Listing Service in Naples, homes under $150,000 have gone from 35 percent of our market to 19 percent of our market, and that -- it includes resales, but, again, it shows the effect of what's happening to affordability in our community. Just last year our single-family permits plunged 26 percent. And we're seeing, in the same time, a 37 percent increase in Lee County. We know that's where the people are beginning to go, one of the reasons are these fees. And one of the things that's coincidental in this, it's actually killing the source that we'll get these fees from. The less we build, the less fees we collect. We've also dramatically -- we've dramatically decreased our ability to be effective with our S.H.I.P. Funds. Those are the moneys we use for impact fee deferrals and those types of things. We can help less and less people through our S.H.I.P. program now because of what we've done through our impact fee changes in the past three years. We've basically gone from about 8,000 on a house to 15-, 16-, $17,000 a house in just a three-year period, and we're seeing the economic impact of it now. This unhealthy reliance on impact fees has to stop, and we have to look at the very negative effect these fees are having on business Page 48 March 9 & 1 O, 2004 development. Certainly we conceded that when the EDC and the chamber were before you talking about Immokalee recently. We looked at and we said, these fees absolutely have stigmatized Collier County as a place to come for business, and that stigma is going to continue to have an impact. And every time that a business looking at Collier County hears, hey, they just got their eleventh fee, I just met with the sheriff's office yesterday about our twelfth fee, that is a stigma that our business community can't overcome. And if we want to properly develop economically the base of our community, we have to think about that. In a study a few years ago, it was demonstrated that for every thousand dollars we raised the price of a home in Collier County, 311 families are told no, that they can't live here. They kind of fall off the edge. And one of the things, I think, that's been most difficult for us is, you're telling those people no in this case, because we want to build the buildings for government, and in essence, the sense of government growing on the backs of that working families. Even the Naples Daily News expressed concern over this fee. In Collier County I know we can do better. We need to evaluate our approach. We need -- if we're going to charge a fee, we need to be 100 percent sure that it's correct and that it's supporting the plan that it's been assessed for. Are you convinced that no waste exists in your facilities plan? We really haven't had time, I think, to study that plan that corresponds with this. You remember when we did the roads impact fee. We went road segment by road segment as we evaluated what roads we were going to build and what those fees were going to pay for. I know this plan's been in place, and I know it's been periodically evaluated, but never under the scrutiny of the fact that it was going to be charged in this way. Page 49 March 9 & 1 O, 2004 And are you charging for any increased level of service? Again, I've seen even some new numbers today that help try to explain it, but I don't know that we really bored into what's there. We need to accurately access (sic) the impact on businesses and families in Collier County. Your executive summary actually -- I think actually falls short of what it's being called to do when we talk about that. Through the state, we're actually required to say what effect this will have on our homes and what their costs will be. We actually talked about how it affects us. We don't talk about it's going to affect others. And I think it's time that we stop in Collier County and do an evaluation of the impact of impact fees, that we look at what it's going to do to the long-term economic health of Collier County. Let's take a comprehensive approach, a comprehensive approach that looks at the social and economic impacts on working families and businesses. I'd suggest a workshop or a commission or something that actually evaluates that. Bring your EDC into the process. You worked with them when we looked at Immokalee, and brought them in, and they were a very, very important partner in that evaluation process. I think it's time that we do that now. We shouldn't rush into these fees. We shouldn't tell working families and expanding businesses that we -- that we'd rather have larger government, and that's more important than their ability to own a home or expand their business. The Collier Building Industry Association vigorously opposes this fee, and we ask you not to approve it today. Thank you. MS. FILSON: Your final speaker is Rich Weisberg. MR. WEISBERG: Good morning. My name is Rich Weisberg. I'm just a young business professional in Naples, Florida. Page 50 March 9 & 1 O, 2004 And I just wanted to make a couple points. I think that as far as bringing in new businesses inside -- excuse me -- inside Collier County as well as young middle-class families, I think it will slow that growth. I think if you are trying to bring in new funds, I think it's going to slow tremendously, because I think these individuals, these young businesses, will look at other places to bring their business to. Maybe it's Lee County. I was speaking with an individual yesterday who was deciding where to put their business, whether it was Lee County or Collier County, and they didn't want to bring it to Collier County because of impact fees on new businesses. And I think that if you're trying to raise capital, I think that it's not the best way to do it. So I would urge you to vote against it. And I want to thank you again for allowing me to voice my opinion. CHAIRMAN FIALA: Thank you. Commissioner Coyle? COMMISSIONER COYLE: I have a question of the consultant, and then I'd like to make a statement concerning this. During our conversations yesterday, a very interesting statistic was brought up, and I'd just like to discuss it briefly and make sure I interpreted it properly, and it had to do with the number of workers in Collier County. And it seems that your research has indicated that more people live in Collier County and go outside the county to work than come into the county to work. And I just want to bring that up, because I think we have all been under an entirely different impression, that we don't have places for people to live here, and so, consequently, people live in other places where it's less expensive like Lee County and come into Collier to work. If your data is correct, we -- we need to maybe rethink that Page 51 March 9 & 10, 2004 conclusion. Am I stating this correctly? MR. TINDALE: You need to be very careful with my statement. There is the census data who actually asks people where they work and where they live. The census data information that we -- we looked at showed more people going to work outside the county -- going outside the county than people who live outside the county come into the county to work. That's not -- so that's -- then that's what the census data said. I travel -- my comment was, I travel here, and I've been here, and it seems like there's an awful lot more cars coming into this county in the morning and leaving this county in the afternoon. And I question that, but I found it odd that that was -- you know, that that was what the census data concluded. COMMISSIONER COYLE: But is there a possibility that the census data might be skewed or inaccurate? MR. TINDALE: Yeah, I -- I just -- it's just an odd -- you know, I thought I was going to go find just the opposite, and so we need to be careful with it in terms of doing that. But I can tell you that it's not totally incorrect, because there's some counties that are what we call donor counties and some counties are not. And I gave -- I think I also gave the example that in Hillsborough County, which has a tremendous downtown -- it's got 25,000 people downtown-- it has as many employees as it does people who live there. And you're at, I think, about half or two-thirds. So it kind of matches a little bit. So -- but I still -- it still bothers me to see this common sense traffic coming in. When you go to Hillsborough County and Pinellas County, there's a lot more cars coming into Hillsborough and going to Pinellas County, and the two match. For you they don't match, and it's kind of an odd thing with me. COMMISSIONER COYLE: Okay, good. Thank you very Page 52 March 9 & 1 O, 2004 much. And I'd just like to make a statement concerning my opinion of this. I think that a very good job has been done putting this information together. I've gone through it in some detail. I'm not going to pretend that I understand it as clearly as the people who developed it, but I think it's good data. I think you've -- you're prepared to defend it, and I think it probably could be defended as an impact fee. But I'm philosophically opposed to doing it at this point in time, and let me tell you why. We're still in uncertain economic circumstances here, and I think any action that we take that might discourage economic development in Collier County is going to be an unfortunate action. Secondly, we are going into a budgeting cycle, and this commission and the staff over the past couple of years has done a very good job of prioritizing tasks and utilizing the money that we have in the wisest possible way. We're just going into that process. And I think that to impose an impact fee before we go into the budgeting process where we can determine how we allocate the funds that we've got is premature. And at the very least, I would like to suggest that we postpone a decision on this until after we go through the budgeting process. I know there are -- there are requirements for capital improvements, and I know that shortfalls have been identified, but we also know that we will be getting additional funds just because of the appreciation of property values in Collier County. Not because of an increase in rates, but because of appreciation of the property. And what I would encourage is that we deal with the prioritization of our tasks before we start implementing additional impact fees that might have an unfortunate economic impact on Collier County at a time when we can't really afford to have any more Page 53 March 9 & 10, 2004 adverse impact. So basically, that's where I am with this. I think they've done a very good job, but I think it's a little bit premature. CHAIRMAN FIALA: Okay, thank you. Commissioner Halas? COMMISSIONER HALAS: I just differ totally with Commissioner Coyle there. I feel that -- first of all, I'd like to ask our consultant where we stand right now with the level of service as far as government buildings. And then another question I have for you, sir, is where do we stand with level of service in five years and 10 years? MR. TINDALE: In relationship, I think I made a comment. And I'm always as honest as I can be, because I don't want to use any of these numbers inappropriately. And I had my staff call around. We're doing about five of these right now, and there's about seven or eight of them in the State of Florida. For impact fee, for the number that's going into the impact fee equation, you're at 1.9. The lowest -- that's almost two people -- two square feet for person. The lowest I saw -- we've seen is 2.5 in a range to 4.5. Now, there's two -- it could be two reasons for that. One is -- and I think is truly -- I've seen your buildings and your people. One is, you're -- you are pretty efficient in what you're doing. The other thing is, some of the other counties may not have impact fees for some of the buildings, and so, you know, we're adding some buildings in there. But in general, trying to take all that into consideration from what I've seen, you've got less buildings that you've bought -- you're having to pay bond debt on, you've been paying as you go, you've got less square feet per person, I think, than almost any county that I've -- I Page 54 March 9 & 1 O, 2004 worked in in terms of your level of service. And my general feeling is, you're probably sitting there at the edge trying to deal with the quality of service. And usually these things don't come up. And I worked in government my first 20 years, which is a few years ago, and we never built a building until everybody was just about, you know, to pop and having to make trips around because you had some inefficiencies. So from a level of service perspective, you're right on the lower edge. I've not seen one this low. COMMISSIONER HALAS: The other thing that -- we got ourselves in a real bind a few years ago whereby we didn't take the initiative to make sure that growth paid for growth. And I'm a very -- advocate supporter in regards to -- that growth has to pay for growth. And I feel that we don't want to get ourselves in a pro -- in the situation that we got ourselves into a few years ago where we couldn't meet the demands of growth. And I feel that we need to make sure that the amount of residents that are coming here -- I know there's been some talk about that economic downturn. I think that's over. I think that we're on an upswing, and I think that was proven so far this year by the amount of traffic that's been into our area. I know that the realtors are having a field day in regards to selling new developments. And I really feel that we need to make sure that growth pays for growth. And I think that equation that you came up with -- I believe you said it was $184 a square foot. I know that the developers are charging close to $250 a square foot. So I feel that your assessment of what you've come up with, I think you've done an outstanding job in doing the research in here. And even at $184, I'm sure that's not going to be paying for the total amount of the government buildings that we need here. And of course, we're very proud in Collier County here to make Page 55 March 9 & 1 O, 2004 sure that the people here are well taken care of and that we make sure that when they demand that there's service there, that we are attentive to their concerns. And I feel that we need to go forward and establish these impact fees today. CHAIRMAN FIALA: Okay. Commissioner Coletta? COMMISSIONER COLETTA: Commissioner Henning was before me. CHAIRMAN FIALA: Oh, was he? I'm sorry. The COMMISSIONER HENNING: COMMISSIONER COLETTA: COMMISSIONER HENNING: Age before beauty. Just kidding. In that case, it's my turn. The slide on the viewer and what's in my book differ, and I'd like to kind of straighten that out. MR. TINDALE: This is -- this is me. I talked to the staff. And just in talking with all the commissioners, there was a concern about the amount and the fee and the implementation, and I had made a comment, I'm not sure which one it was to, that one of the tools we've used in other counties is don't -- you don't have to adopt a hundred percent. You adopt the ordinance -- COMMISSIONER HENNING: Right, I understood that. MR. TINDALE: -- you get it on the book. And so I produced this slide last night. COMMISSIONER HENNING: Okay. Let's go at 100 percent. MR. TINDALE: Okay. COMMISSIONER HENNING: Residential, 159.60. What I have for single-family 2,000 is 320, $320. COMMISSIONER HALAS: Per 1,000 square feet. COMMISSIONER HENNING: And what we're showing here now is -- MR. TINDALE: Per 1,000 square feet? Page 56 March 9 & 1 O, 2004 COMMISSIONER HALAS: That's for 1,000 square feet, I think, Commissioner. MR. TINDALE: Yeah. If you take a 2,500 -- I don't know what size home you're looking at. We'll probably put a 2,000 square foot home -- COMMISSIONER HENNING: Right. MR. TINDALE: -- so you double this. COMMISSIONER HENNING: Okay. MR. TINDALE: At 2,500 square foot, it would be about $400. COMMISSIONER HENNING: I just didn't want to confuse people -- MR. TINDALE: Okay. COMMISSIONER HENNING: -- looking at that thinking is -- MR. TINDALE: The main reason I did that -- excuse me. COMMISSIONER HENNING: -- that all residential is going to be, 159.60. MR. TINDALE: Yeah, that's -- no, that's per 1,000 square feet. COMMISSIONER HENNING: Per 1,000 square feet. MR. TINDALE: Correct. COMMISSIONER HENNING: The -- the next column, office, it shows 50,000 square feet. If we adopt a hundred percent, that would be 1,075. MR. TINDALE: That's a bad slide. The slide should say, everything here per 1,000 square feet. In other words, if you build an office space at 20,000, 30- or 40-, the cost per 1,000 square foot would be these numbers. And I did it last night late, and I should have a note here that all these numbers are per 1,000 square feet. COMMISSIONER HENNING: Okay. Now, on the retail, I show per 1,000 square feet. In my book it's 1,697 per square foot. And you're showing -- MR. TINDALE: Maybe I shouldn't do these things late at night. Page 57 March 9 & 1 O, 2004 I thought I pulled this right out of the fee schedule, to be honest with yOtl. COMMISSIONER HENNING: Okay. MR. TINDALE: I may have picked it out of the wrong location. COMMISSIONER HENNING: So if we are going by, on retail COMMISSIONER HALAS: It's 1,075. COMMISSIONER HENNING: Fifty thousand square feet would be $54,000. COMMISSIONER HALAS: Uh-huh. COMMISSIONER HENNING: I guess -- MR. TINDALE: Oh, I picked the very first item off the retail on the spreadsheet, which is specialty retail, and I've been using retail. It's 16 -- it's 16 -- I picked the wrong number off the spreadsheet. COMMISSIONER HENNING: Okay. MR. TINDALE: I picked specialty retail, which is -- the 1,411.20 is perfectly right for the wrong -- for the wrong use. It's 1,696.80 is correct. COMMISSIONER HENNING: And I -- the only reason I wanted to state that, I didn't want to get -- have anybody have the impression that commercial is 1,000, $1,100, or whatever it is. It's per square foot. MR. TINDALE: Correct. COMMISSIONER HENNING: Probably the average is going to be 30,000 for retail. And it depends on how big it is, naturally. MR. TINDALE: Correct. COMMISSIONER HENNING: That's -- I guess that's my concern, because in the business world, the cost of doing business is passed off to the consumer. Whatever -- the items that you purchase is passed off to the consumer with a profit. Whatever fees that are added on to the mortgage is passed off to the consumer. Page 58 March 9 & 1 O, 2004 And then with that, I know most businesses pass off profits from that, whether it be 1.5 or 3 percent, whatever. Your mortgage is, they're going to charge more and pass it off to the consumer. So the statement of growth paying for growth in the commercial world is not true. It's pass-through cost to the residents of Collier County. Looking at -- there's a building on Airport Road and Vanderbilt Beach. They pay $29,000 of property taxes per year, $29,000, where, you know, my house pays -- I think it's 3,000. The -- so I'm not sure if the commercial is demanding -- or retail is demanding that much government service to offset that. It's -- it has to do with homestead exemptions and some other things. So I feel that business is already paying its fair share, and I am very concerned about pass-through cost to the consumer in Collier County. And when we increase -- our assessed values increase each year, as -- it appears to me that if we do our homework and be fiscal conservative, we can still provide for our residents. CHAIRMAN FIALA: Commissioner Coletta? COMMISSIONER COLETTA: Yes, thank you. If I could, please, before you leave. I need to draw some things into comparison. We keep saying that the impact fees are directly impacting affordable housing in Collier County. And I'd like to know, proportionately, do we have the statistical numbers for labor, con -- the construction materials? What is it going one year? I'm just curious to what that would be and how it compares with this present impact fee. MR. TINDALE: You want to talk to this? COMMISSIONER COLETTA: Thank you, Amy. MS. PATTERSON: Hi. Amy Patterson, again, for the record. We just did some preliminary research yesterday on various Page 59 March 9 & 1 O, 2004 things that affect housing costs, and we know that a land component here in Collier County, that we have about an average of 14 or 15 percent of an increase in land value each year. Labor -- and a cost of living adjustment last year was a 2.9 percent increase, and building materials in the form of wood, lumber, and other construction items went up 6.6 percent. So if you add, just roughly, those three numbers together, you see a 24.5 percent increase to the cost of construction; however, if you then take the impact fee, this one that we're speaking about, the general government buildings, for a $200,000 -- say a 2,000 square foot home, it's a $319 fee added on top of the cost of the home. That's a. 16 percent increase to the cost of the home, so it's -- COMMISSIONER COLETTA: Point one -- in other words, a tenth of a percent? MS. PATTERSON: A tenth of a percent, versus about, even conservatively, a 20 percent increase. COMMISSIONER COLETTA: So the driving factor in Collier County, while impact fees do have a determining factor as far as people that are close to the line for getting a mortgage or not getting it is dramatically changing every year by 24 percent or so for -- in the housing market because of forces beyond the control of this commission? MS. PATTERSON: Beyond our control, absolutely. COMMISSIONER COLETTA: Okay. The other question I have is, I think we're all pretty much in agreement that we have to put together the infrastructure as far as government buildings in order to be able to meet the demand. It's just a question of where does that money come from. If we were to opt out and say, okay, that this is going to come from ad valorem, what type of an impact would that have to the average taxpayers as far as their millage rate goes? Page 60 March 9 & 1 O, 2004 MR. MUDD: Commissioner, if you -- if you go to ad valorem-- and there were two fees that Mr. Ellis represented, one was the government building impact fee, and the other one is the law enforcement impact fee that's coming before you sometime, April, May, I hope. MS. PATTERSON: The end of April. MR. MUDD: The end of April. If you take a look at those two impact fees and you -- and you pull those dollars out from the impact fee part and you have to make it up with the millage rate, we're talking about. 17 mills. COMMISSIONER COLETTA: Okay. Let me ask you another question, Mr. Mudd, since you're pretty much up on impact fees and millage rates. Is there any correlation between the fact that we have the lowest millage in the State of Florida and also the highest impact fees? MR. MUDD: Well, Commissioner, you're damned if you do and you're damned if you don't. You know, if you want to have the lowest millage rate in the State -- COMMISSIONER COLETTA: We use the word darn around here. MR. MUDD: Oh, I'm sorry. Well, I didn't -- it wasn't swearing in my statement, okay? I'm just -- COMMISSIONER COLETTA: Oh, that's okay. Remember, Ave Maria's coming. MR. MUDD: Yes, sir. The -- now, you got me on Gregorian chant. I'm sorry. The -- if you're going to have the lowest -- if you're going to have the lowest millage rate -- the lowest tax rate in the State of Florida, okay, and you've tried sales tax issues before in the county and they haven't gone anywhere -- because the residents basically say, deal with it in the tax dollars, so you're pretty well stuck with two funding Page 61 March 9 & 1 O, '2004 sources to look at -- or revenue sources in order to get at increased demands. You've got a county that's increasing by anywhere from 12- to 15,000 residents a year. The whole State of Florida is in a boom as far as that's concerned, and I think we got that -- that information as we did our lobbying efforts up in Tallahassee with Southwest Florida last week. You're going to have to do something in order to get it. Now, the county in the past has done things about renting buildings. Now, we talked about, in one of our strategy meetings in our workshops about stopping the renting side of the house and get into government ownership of those buildings. We moved the property appraiser across the street because -- because we couldn't bring any more folks in because we didn't have parking spaces. So we made a choice to start building parking decks. We've started one with the sheriff's facility, the new -- the new expansion to the jail, and we will continue, as soon as that's over, to start the other parking -- parking deck that's planned so that we can get folks out of rental spaces. I can't do an expansion to the courthouse without having parking spaces, because then we violate our Growth Management Plan, Land Development Code, issues like that, so we're pretty well stuck in increasing that process as far as the footprint. So if we're going to keep our Master Plan, and we're going to do that, we're going to have to build those particular facilities. As you heard our -- the judge, the chief judge, Judge Hayes, come in, they're -- they're looking at two new judges showing up. And I've got Skip overseeing Judge Manalich here at the end of the week trying to figure out where I'm going to put those two judges, and their potential is another two on top of that because the 20th circuit is growing and our need for courthouses are growing. Page 62 March 9 & 10, 2004 You have a responsibility to provide those particular facilities for the constitutionals and the judiciaries. So you've got a -- you've got a courthouse that you have to deal with, you have public defenders that you have to deal with, you've got the State Attorney's Office that you have to deal with, plus you have your constitutional officers that you have to house, and that's part of our responsibility. And I would say today we're talking about everything except for the sheriff as far as their future housing is concerned. And there was an item on page 55 that talked about the particular build -- in your packet -- the particular facilities that we're talking about over the next five years in the packet that equate to some 107 thousand do -- $107 million that are impact-fee eligible under this particular impact fee. You don't get it here on the impact fee, you're going to have to get it out of your millage rate or you're going to have to do something to cut services in order to pull it out. COMMISSIONER COLETTA: I have one more question, and then I'll surrender this mike. CHAIRMAN FIALA: Okay. COMMISSIONER COLETTA: Yes. This would be of Denny Baker, if I may. And I have no idea which way this answer's going to go. Mr. Baker, prior to 2000, before this present commission that's seated here today came and started getting involved, can you make some sort of comparison with how we're meeting our affordable housing needs today in comparison maybe in nUmbers; are we doing better? Are we doing worse? MR. BAKFJR: We're certainly not doing any better, Commissioner. Cormac is here. I'll defer to him. He's my housing expert in that area, if you please. COMMISSIONER COLETTA: Okay. Page 63 March 9 & 1 O, 2004 MR. GIBLIN: Cormac Giblin, your housing development manager, for the record. Commissioner, that's a -- I think that may be a loaded question. We are certainly working a lot harder to meet the ever-growing demands that are placed on affordable housing in this county, as we just heard. For forces beyond our control, housing prices are rising at a minimum of 20, 25 percent a -- every year in this county due to construction and land increase expenses. I can tell you that our Affordable Housing Commission and our newly-formed Collier County Housing Development Corporation, nonprofit group, are vigorously trying to research every possible way that we can mitigate the effects of increased land cost, increased construction prices and increased impact fees in this county, probably more so now than we have in the past five years or so. There happens to be a very strong push right now to address the growing needs of our working residents. COMMISSIONER COLETTA: Okay. But I want-- also too, in the Immokalee area, we've come up with a recent deferral program to be able to try to accommodate not only residents, but business, where we're trying to direct business to. Would you give us a brief recap of that, if you could? Or would that be back to Denny? MR. GIBLIN: Well, the Immokalee program is going forward. And, in fact, we hope to use it as maybe a prototype to address workforce housing needs throughout the county, building on the successful model that we've started in Immokalee. MR. MUDD: Commissioner, if I can interject Cormac and ask Cormac a question on that line. Cormac, do we defer or waive impact fees for affordable housing in other places in Collier County besides Immokalee? Page 64 March 9 & 10, 2004 MR. GIBLIN: We -- we call our Impact Fee Relief Program a deferral program to the homeowner, but at the time that the impact fees are otherwise due, we are actually making payment into those funds with our S.H.I.P. program. Right now we receive just barely $2 million a year from the State of Florida to the S.H.I.P. program. Last year we used 1.3 million of that through our Impact Fee Relief Program. COMMISSIONER COLETTA: And could you address the industry impact fees and how that is affected as far as where we're trying to direct industry to? MR. BAKER: Commissioner, the new incentives for the Immokalee area, the impact fees are deferred and actually are paid back through increases in property values and through other programs. The trust funds are made whole at some point in time at a later date, so the county loses the use of that money early on. But at the end of the day, the county is made whole. COMMISSIONER COLETTA: And I think this commission was in agreement that they wanted to direct the industry east of 951, in previous meetings, was mentioned. So I guess the biggest concern would be like retail establishments that are opening throughout the county, as far as to limit the scope of discussion where we're actually concerned about. Thank you so much. I do appreciate your time. MR. BAKER: Commissioner, I would like to add one thing to that. I should point out that -- we're talking about the impact fees for new construction. For example, in East Naples, if someone wanted to go in and open an establishment in an existing building, of course, there is no impacts fees, even if they remodel, as long as they don't increase the square footage. CHAIRMAN FIALA: Commissioners, we're going to break for 10 minutes to give our stenographer a 1 O-minute break, and then Page 65 March 9 & 1 O, 2004 Commissioner Halas is next, and then Commissioner Coyle. you. Thank (A brief recess was taken.) MR. MUDD: Madam chair, you have a hot mike. CHAIRMAN FIALA: Thank you very much. Commissioner Halas, you're next. MR. MUDD: Ladies and gentlemen, please take your seats. COMMISSIONER HALAS: It's amazing when we talk about how we're going to finance all this. Recently we had a revenue commission that was put together, and we asked the commission to give us ideas of where we could obtain funding sources. And believe it or not, some of the ideas that has (sic) been bounced around up here by the commission at one time was, well, franchise fees. Well, guess what? When the revenue commission came back, they didn't want us to raise ad valorem taxes, they didn't want us to raise revenue -- or franchise fees, and the only thing they really came up with was impact fees. And it's amazing, nobody wants to pay for the services rendered here in this county. They want -- but they want somebody else to pay for it, and -- so we don't have very many options open to us, and we've got a tremendous amount of problems looming in the front. We've got stormwater issues, we've got a new jail that's coming on line, we've also already heard from the sheriffs department that he wants $20 million, that he's going to need $20 million just to run his operation over there and the enhancements that are taking place in the jail. So we're really between a rock and a hard place. It doesn't give us much leverage here on how we're going to address all these issues. And the other thing, I realize the small businessperson that's coming into this area and wants to start a business, there's a lot of Page 66 March 9 & 1 O, 2004 areas still open yet that -- of store frontage, places in residential -- or in, excuse me -- in commercial areas that are available, and he won't be hit with these impact fees. So I think we can come up with something that would fit all cases. So that's where I stand, and that's how I feel about the whole situation at this time. CHAIRMAN FIALA: Commissioner Coyle? COMMISSIONER COYLE: Yeah. I would just like to go back to one of the earlier questions and make -- make sure that we correct some of the statements that were made so that we don't draw the wrong conclusions. When the county manager was asked about the impact of not approving this, the county manager prefaced his statement by saying, well, we have the law enforcement impact fee coming up, and if you don't approve that, and then we drifted into a discussion about increasing ad valorem property taxes. That is not where I'm going here. I will not vote for an increase in ad valorem property taxes, nor am I convinced that it is even necessary. The other -- the other point I would like to correct is that -- is that the cost of things are escalating in Collier County, and much of it is beyond our control, much of it is construction cost and things of that nature. Now, let me -- let me describe for you how that is not beyond our control. If we increase an impact fee and put an impact fee on a 50,000 square foot office building or retail facility of 50- to $80,000 -- let's presume that office is a construction office and the retail is a lumber yard. You pass through those costs to the consumers which increases the cost of construction. That is under our control because we are applying substantially higher impact fees to those kinds of businesses, Page 67 March 9 & 1 O, 2004 and those businesses serve our taxpayers, and our taxpayers pay more money. So don't be too quick to leap to the conclusion that we don't have control over some of these costs, because our actions do, in fact, have a very direct impact on the cost of construction and the cost of everything else in Collier County. But let me get to the real point. I am not saying we don't need to build additional buildings. I'm not even saying we don't need to have this impact fee. What I'm encouraging the commission to do is at least take the time to look at what our revenue is going to be this year and take a look at what the demands are on our revenues and to prioritize those demands before making a final decision on an impact fee implementation. In our private lives, we don't -- we don't just go out and buy a new car without first deciding what our income and expenses are going to be, and then decide, is a new car more important than sending the kid to college. We make those kinds of decisions and we make those kinds of priorities, and that's all I'm asking this commission to do. We are approaching a budget cycle. We know we're going to get additional money from increased valuations of property, but we have not yet sat down to discuss how we're going to prioritize the expenditure of that money. And I think when we sit down and prioritize it, we are going to have to ask ourselves a question, what is more important, building a building, which we really need? Is it hiring more deputies for the prison, which we probably won't need until after the prison is completed? Is it building another road? What is the priority? And then we sit down and we say, okay, here is the priority, then we know how we divide the money up, then we know how much money we need for our capital improvement program, and then we Page 68 March 9 & 10, 2004 make a decision. That's all I'm asking this commission to do is to approach it in a business-like manner, not discard the idea of an impact fee, but at least evaluate these other options first and put it in its proper sequence with respect to the expenditure of taxpayers' money. None of that, none of it, translates into an increase in ad valorem property taxes. Absolutely nothing that I've said would result in that. But what it would result in is a more logical and responsible decision-making process with respect to how we allocate taxpayer funds. CHAIRMAN FIALA: Commissioner Halas? COMMISSIONER HALAS: What Commissioner Coyle said is true to a point, but also -- that we were up in Tallahassee last week and we found out that the state is probably going to mandate quite a bit, a substantial part of the increase that we anticipate from the ad valorem taxes that are going to be mandated for us to provide facilities here in the county that the state provided for. When that takes place, we're probably going to lose maybe somewheres in the area of $3 million that we normally wouldn't have to give up that we could use here in Collier County for our benefit. But with the advent of the 20th district (sic) court, the new judges coming onboard, we're going to have to provide those facilities, and we're also going to have to probably provide facilities for juvenile court. So when we look at everything and we look at what's coming down the road, I think we're going to have a very tight budget year. Maybe we're going to have to stop looking at landscaping the roads. Maybe we'll have to stop building roads. And we'll see where it's going to lead to from there. But I think we went through that scenario once before, and it doesn't work. And there's no way that you're going to stop growth. Page 69 March 9 & 10, 2004 People are coming. Especially with the baby boomers. We hear the development community crying that we're going to put a bind on them as far as people wanting homes. Let me tell you, these people that are going to be coming down here that were born after 1945 to about 1960, these people have garnered quite a wealth, and they're coming down here. And they're not going to build 1,000 foot square (sic) homes, they're going to be building 5,000 square foot homes. They're going to come down here with all their toys, and they're going to demand services, and we better be ready, because if we're not, I'll tell you, it's not going to be fun. And I just don't want to leave a burden on other commissioners that may sit in this -- up here at the dais. We've done that in the past. We've got some serious issues like stormwater retention issues. We know that we're going to probably be mandated by the federal government the next few years. So it's not a pretty picture, and it's a hard decision to make, but we also have to look at what we need to do to take care of it. As we talk about, you need a new car or do you need to send the -- your child to college. You may need a new car because you can't get back and forth to work, but you can buy a used car. But still, you have a problem whereby you have to balance the budget. And we can't-- we don't have the revenue sources anymore. We pretty much bonded everything out. We asked for help by the revenue commission to give us guidance, and the only guidance they gave us was, hey, impact fees as you heard, and I just don't feel it's a rosy picture. Yes, we're going to have an increase in ad valorem taxes, but we've got all the other constitutional officers that also want a piece of the pie. And it's a -- it's a fight every year in regards to how much of that pie is going to be passed out. Page 70 March 9 & 10, 2004 So we have to look down the road. And I think we have to make sure that we plan well in advance of what's in front of us and what's coming down the road. CHAIRMAN FIALA: Okay. With that, I will close the public hearing. Thank you. And I'll also make a comment. I do believe that if we build new government buildings, the reason we would have to build new government buildings is because of new growth, otherwise, if we had no growth, we wouldn't need any more government buildings. I also wanted to comment that 85 percent of this impact fee that we're talking about is not going to our area of the government, but it's going to the constitutional officers and the buildings that they need, and we are required by statute to pay for their buildings. We're also talking about building kind of like satellite offices around the county to -- to decrease the traffic problems, to bring government closer to people's homes. I'm very concerned about the office and retail section of this -- of this impact fee schedule, because I -- as I was mentioning to the people in my office yesterday, I don't want to cripple business. I feel that it's terribly important. And I had a talk with Davis Ellis just before, and we were talking about a day care center, and -- for the children and how much it would cost just -- just for impact fees before they even began to open, and, of course, they pass that on to -- to the families who bring their children there, and people are already complaining about how much it costs to have their children cared for. And what we're talking about in most cases, the children that are in these places are the people that are out-- are -- have parents who are out working two jobs a day in order to keep their family going, and now we're even talking about increasing that. Conversely, I think that this rate is awfully high and we don't Page 71 March 9 & 10, 2004 really know what buildings we're talking about building. We've gotten all the figures, but do we know all the buildings we're building? MR. MUDD: We know what we're going to do the next five years. CHAIRMAN FIALA: Well, the five-year plan, right. MR. MUDD: And then you've got the master plan that goes with it. CHAIRMAN FIALA: And are they -- you know, have we discussed how necessary they really are? MS. PATTERSON: Yes. Amy Patterson, for the record, again. We went through the five-year master plan, which is included in your package. Item by item they're ranked, they're placed on that sheet in the level of priority. So they're necessary and they're -- they're ranked accordingly, or they're placed on the schedule accordingly. And there is a continuing master plan that goes out 20 years, but we just gave the first five years. Again, I need to mention that this impact fee is projected to collect -- or to create revenue of $3.8 million per year, and that would give us somewhere in the neighborhood of $20 million over five years. The total plan is $108 million over five years. So this is only a portion. This is not 100 percent impact-fee funded. CHAIRMAN FIALA: Okay. And you know what, more than anything, I know how much we need like parking, for instance, on this facility. Man, we don't have any parking, and I'm delighted that we're building it. We're not building it soon enough. We should have built it years ago. There are other facilities that we need. People talk about operating efficiently. My goodness, our people are housed in cubicles because there's really no space for them. We've separated offices. We -- I think that we -- we definitely need the space. I'm just wondering if we need it as quickly, wondering if there's a way to Page 72 March 9 & 1 O, 2004 approach this where we-- I like the idea of a graduated increase. I think that's maybe good, and maybe that would be something that we could accept. So I'm kind of leaning toward that. I definitely know we need it, that's for sure. And I truly believe that in this particular instance, growth does pay for growth. And as I said, if you close the gates, then we don't need any more government facilities. COMMISSIONER HALAS: Doubt it. CHAIRMAN FIALA: So, Commissioners, where do you want to go from there? COMMISSIONER HALAS: I make a motion that we approve the impact fee increase for government buildings. CHAIRMAN FIALA: As stated or graduated? COMMISSIONER HALAS: As stated in the manual here. COMMISSIONER COLETTA: I'll second it for discussion purposes. CHAIRMAN FIALA: Okay. I have a motion on the floor to approve the impact fee schedule as stated on our agenda by Commissioner Halas, and seconded by Commissioner Coletta. Now, further discussion, Commissioner Coletta? COMMISSIONER COLETTA: Yes. Could we have a little more background on this graduated fee and how that would work so this would be phased in in such a way that it might not have such an impact, that people can start to brace for it? MR. TINDALE: Sure, I can tell you what I've done -- we've done in other communities. You usually take a time period, either three to five years, to phase it in. And that's the reason I used this 75 and 85 percent. For example, if you decided that you -- you wanted to wait for three years before you implemented 100 percent, you start out at 85 percent. Next year, in 12 months, you would go to the 90 percent, and then 95 and Page 73 March 9 & 1 O, 2004 100. If you wanted to come up to 100 percent in five years, you'd basically start at 75 percent and go 80, 85, 90, 95 and 100. And that way -- a lot of communities do that because they feel like it gives the builders time to absorb it, it gives them time to schedule changes, and change is usually difficult, and this is change over time. Again, I'd like to highlight that probably -- and we did this -- started doing this about 10 years ago, without using the index, it puts you behind. And so I would suggest to you that by phasing it over the three-year or five-year period and making sure you're taking a percentage of the new number each year of this index, that it's an effective way of doing it. When you look at a 20-year period and you take that three-year revenue loss or a five-year revenue loss, it doesn't seem quite so hard to swallow. So I think they're starting to look in terms of the long-term, it's a permanent -- semipermanent impact fee. It can always be voted out. But looking at a 20-year plan, it doesn't have a tremendous impact on it, and yet it still gives you the ability to absorb it. COMMISSIONER COLETTA: I'm not quite through, if I may. My thoughts about the graduated -- and I'll tell you what it is. It's very simple -- is that if we start off with a smaller number, we have to learn to live within that. We're going to have to be very conservative while we work. I know what's been proven, that we need every single dollar of this, we need every single building built on that particular time schedule. But by coming up with a graduated schedule, we're recognizing the fact that the people that have been here before us have already paid for the infrastructure that's supporting them. It's the people that are coming afterwards that have to contribute towards that new infrastructure. And for us to have to pay that have Page 74 March 9 & 1 O, 2004 been here 10, 15, 20 years for the new infrastructure that's going to go in for homes and public build -- for public buildings or whatever, and we already paid our mark, it doesn't seem fair. So I do think that an impact fee can be fair, but I do think that we have to put some sort of restraints on it. Would -- Commissioner Halas is going to be next, and I hope he reconsiders his motion. CHAIRMAN FIALA: No, I'm next then. COMMISSIONER COLETTA: All right. Forgive me. Your light wasn't on, Commissioner Fiala. CHAIRMAN FIALA: I don't have a light. They didn't give me a light. COMMISSIONER COLETTA: Well, you're the light of the life up here, so go ahead. CHAIRMAN FIALA: Yes, thank you. Two things. First of all, I think if we -- if we approach it from a graduated schedule, it will give us an opportunity also to apply for grants. That was a question that I asked in my office. I'm certain there are grants available there, and we're getting better and better at applying for grants that will help offset some of these expenses. And, secondly, another thing, you know, a benefit that we haven't talked about up here yet, but a benefit to this is, with these impact fees in place, yes, it might discourage some businesses, but the good thing is it would encourage them to take up some of these empty spaces that we have sitting around, some of them boarded up, and maybe move into those spaces rather than build new buildings, occupy some of these empty places. And I know that there's a community out there eager to see some new develop -- or redevelopment taking place. So there is a benefit to this. COMMISSIONER HALAS: Madam Chair, I'd like to amend my Page 75 March 9 & 10, 2004 motion and put it on a graduated basis over three years. COMMISSIONER COLETTA: And I amend my second. CHAIRMAN FIALA: Okay. We have the motion amended to -- to include a graduated basis for three years and -- by Commissioner Halas, and seconded by Commissioner Coletta. Do we have any further discussion? COMMISSIONER COLETTA: We might want to state the particular arrangement. I would assume that it has to do with the impact fee schedule option that's in front of us. COMMISSIONER HALAS: I would like to add that we start off with 80 percent, and then go to 90 percent, and then the third year we go to 100 percent. COMMISSIONER COLETTA: Could I suggest that maybe 75, 85 and 100 might be more equitable? It gives a little more breathing space for those people that are coming along. COMMISSIONER HALAS: Commissioner Coletta, I'll let you put that -- add that to that -- COMMISSIONER COLETTA: Okay, thank you. COMMISSIONER COMMISSIONER COMMISSIONER HALAS: -- 75, 85, is that correct? COLETTA: That's correct. HALAS: Okay-- 100. COMMISSIONER COLETTA: Thank you. CHAIRMAN FIALA: Okay. David, do you have this motion in place, and would you like to read it for us? MR. WEIGEL: I believe I do, thank you, and I'll ask Mr. Tindale to stand by to make sure there's no further direction that may be needed here. We have a motion by Mr. Halas, second by Mr. Coletta, to approve the impact fee ordinance -- COMMISSIONER HALAS: Seventy-five -- CHAIRMAN FIALA: Graduated. Page 76 March 9 & 1 O, 2004 MR. WEIGEL: Yes. No, I heard someone. COMMISSIONER HALAS: Oh. MR. WEIGEL: -- to approve the impact fee ordinance amendment relating to government buildings to be implemented with an implementation date of April 1st, 2004, and such fee schedule to be on a graduated basis of 75 percent the first year, 85 percent the second year, and 100 percent after three years, or at three years. Is there any further definition required? MR. BAKER: David, I would suggest -- Denny Baker, for the record -- suggest that we include the indexing that Mr. Tindale mentioned so we -- we're -- COMMISSIONER HALAS: I'll amend my motion to cover that. MR. BAKER: Thank you. MR. WEIGEL: Okay. Does the second so amend? COMMISSIONER COLETTA: Yes. MR. WEIGEL: Okay. So on top of what I have just said, the motion maker and the second have amended their motion to include indexing. And is everybody clear as to what that indexing means and how it is implemented over the years? (No response.) MR. WEIGEL: Any further explanation needed prior to the vote? (No response.) MR. WEIGEL: To the board. CHAIRMAN FIALA: Okay. Commissioners, all those in favor, say aye. COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. Page 77 March 9 & 1 O, 2004 COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: And opposed, like sign. COMMISSIONER HENNING: Aye. COMMISSIONER COYLE: Aye. CHAIRMAN FIALA: Opposed -- that's all right, that's all right. Opposed, Commissioner Coyle and Commissioner Henning. Is that -- is that correct? COMMISSIONER HENNING: Right. CHAIRMAN FIALA: Okay. I wasn't quite sure where the first aye came from. Okay. So we have a 3-2 vote on that. MR. WEIGEL: The motion passes 3-2. CHAIRMAN FIALA: Okay. The three for, or in favor of the motion, are Commissioner Halas, Commissioner Coletta, and Commissioner Fiala. Those opposed are Commissioner Henning and Commissioner Coyle. COMMISSIONER COYLE: Very opposed, put that in there. Item #9A RESOLUTION 2004-69 APPOINTING GRAHAM GINSBERG AND JOHN SOREY III TO THE COLLIER COUNTY COASTAL ADVISORY COMMITTEE- ADOPTED MR. MUDD: Madam Chair, that brings us to our next item. Sorry? Madam Chair, that brings us to our next item, which is 9(A), and that's appointment of a member to the Collier County Coastal Advisory Committee. COMMISSIONER HENNING: I'll make a motion, and it's going to be two motions. I make a motion that we accept John Sorey Page 78 March 9 & 10, 2004 from the city council to represent the city on this board. COMMISSIONER COLETTA: Second. CHAIRMAN FIALA: Okay. This is 9(A), and that's the first motion. So I have a motion to accept John Sorey from the -- representing the City of Naples by Commissioner Henning, and seconded by Commissioner Coletta. Any further discussion? (No response.) CHAIRMAN FIALA: All those in favor, say aye. COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: (No response.) CHAIRMAN FIALA: And opposed, like sign. And that passes, 5-0. COMMISSIONER HENNING: The second motion is to appoint Graham Ginsberg on the CAC. COMMISSIONER COLETTA: Second. COMMISSIONER COYLE: And I would like to nominate Robert E. Dowling as the committee recommendation. CHAIRMAN FIALA: Yes, and I second that. So we have -- COMMISSIONER COLETTA: You've got one motion. CHAIRMAN FIALA: Okay. We have one motion on the floor to accept Graham Ginsberg by Commissioner Henning, and a second by Commissioner Coletta. Oh, my goodness, and we have -- I can't tell which one was the first one. COMMISSIONER COLETTA: Oh, I'm sure I was. CHAIRMAN FIALA: Okay. Commissioner Coletta, then we Page 79 March 9 & 10, 2004 have Commissioner Henning, and then Commissioner Coyle. COMMISSIONER COLETTA: Yeah, I just want to point out a couple of things. First, that Mr. Ginsberg is a civil engineer, number one, number two, no representatives exist on this board from District 3 or 5. We have three from District 1, two from District 2, and three from District 4, zero from 3 and zero from 5. And this man is an advocate for beach access, and I'm backing him. CHAIRMAN FIALA: Okay. Commissioner Henning? COMMISSIONER HENNING: The -- part of my -- other than what Commissioner Coletta said, Mr. Dowling is already serving on two committees for the Board of Commissioners, and I really appreciate that. I think our efforts of trying to bring people -- people in to give us feedback, so that's the reason for my motion. CHAIRMAN FIALA: Okay. Commissioner Coyle? COMMISSIONER COYLE: Yeah. I have a question, and then a comment. How is this vote going to be determined? If we have two potential nominations, are we going to vote on both of them and have the person with the largest number of votes be selected? Or is it just the first person who is voted on? You see, to me it's unfair because if you vote on the first person, they've got three votes. You could vote on the second person and might have four votes. So it's a problem I've always had with the way we approach this process. So I have a question about how we should do this. MR. WEIGEL: Are you looking -- are you ready to -- COMMISSIONER COYLE: Yes. MR. WEIGEL: The answer, or response is, that a motion on the floor is the motion that must be handled before the second motion is Page 80 March 9 & 1 O, 2004 had. There is an opportunity in the discussion portion of any motion that's had prior to the vote to bring out the advantages or disadvantages of the -- of the vote for the motion that was made and the potential for a second motion and vote that could be had thereafter. But the board will be obligated to vote on the first motion. And it's not a question of seeing, ultimately, who -- who in multiple motions garners the most votes. COMMISSIONER COYLE: There is also a possibility of putting more than one person's name in nomination and having a vote on each of them. MR. WEIGEL: Never seen it done here. COMMISSIONER COYLE: Okay. All right. Then I'll wait till I'm chairman, okay? Then I would say that Mr. Dowling is the committee's recommendation. The committee has apparently made a judgment that he has -- is capable of performing well on this committee, and I support Mr. Dowling and support the committee's recommendation. MS. FILSON: And-- and if I may interject just one thing. Mr. Dowling was appointed to a committee in January of this year, and he was appointed to the other committee in February of this year. So if he is elected, you'll need to waive section 5(D) of ordinance 2001-55. COMMISSIONER COYLE: Okay. CHAIRMAN FIALA: (No response.) CHAIRMAN FIALA: Any further comments? All those in favor of the motion to appoint Graham Ginsberg to the Coast Advisory Committee, say aye. COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: I have three votes, Commissioner Henning, Commissioner Coletta, and Commissioner Halas. Page 81 March 9 & 10, 2004 All those opposed, say aye. COMMISSIONER COYLE: Aye. CHAIRMAN FIALA: Aye. And that's Commissioner Coyle and Commissioner Fiala. So we have a 3-2 vote. COMMISSIONER HALAS: So that means that motion passed; is that correct? CHAIRMAN FIALA: Yep. MR. MUDD: Madam Chair, is there a-- is there a second motion, or are we moving on to 9(B)? COMMISSIONER COLETTA: Nope, you can't. CHAIRMAN FIALA: No, sir, there is not. Item #9B RESOLUTION 2004-70 APPOINTING JOHN F. SOREY TO THE TOI JRIST DEVEIDPMENT COl JNCII,- ADOPTED MR. MUDD: Next item is 9(B). It's appointment of members of the Tourist Development Council. CHAIRMAN FIALA: That was a wishful motion, I think. COMMISSIONER HENNING: I'm going to second Commissioner Coyle's motion to appoint Councilman John Sorey. COMMISSIONER COYLE: I make that motion. CHAIRMAN FIALA: I have a motion on the floor from Commissioner Coyle, a second by Commissioner Henning, to appoint Councilman John Sorey to the Tourist Development Council. Any further discussion? (No response.) CHAIRMAN FIALA: All those in favor, say aye. COMMISSIONER HALAS: Aye. Page 82 March 9 & 10, 2004 COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: And opposed, like sign. (No response.) CHAIRMAN FIALA: Very good. That's a 5-0. Item #9C STAFF TO PREPARE A RESOLUTION TO BE BROUGHT BACK ON MARCH 23, 2004 AGENDA REGARDING THE FPL PREFERRFD TRANSMISSION lINE AIJGNMENT MR. MUDD: Commissioner, this next item is 9(C). It's a discussion regarding the FP&L preferred transmission line alignment. And you asked for the particular item to be on the agenda. CHAIRMAN FIALA: Thank you. Yes. I don't know if I should begin or not, but I will. I received a call from Ray Juda asking -- saying that Lee county had sent a resolution to -- to FP&L to say that they were certainly in favor of the alignment that is proposed by FP&L, and he asked if we would send the same resolution. I guess that's needed as we move on to the state. And I said, I didn't want to put anything -- I didn't want to sign any kind of a resolution without talking to the commissioners first, and so here we are. So I'd like to begin the discussion. Do we -- does anybody want to hear from FP&L or from staff members, or shall we just move forward? COMMISSIONER COLETTA: Let's hear from them first. UNIDENTIFIED SPEAKER: We have speakers. Page 83 March 9 & 10, 2004 CHAIRMAN FIALA: Okay. COMMISSIONER COYLE: What's the chain? MS. FILSON: I have four speakers on this issue. CHAIRMAN FIALA: Four speakers on this, okay. Very good. Let's start there. And then -- MS. FILSON: Carol Wilsey. She will be followed by Grover Whidden. MS. WlLSEY: For the record, I'm Carol Wilsey. I'm the president of the Olde Cypress Homeowners' Coun -- Advisory Council. Wasn't sure that I would be allowed to present today, so I haven't prepared anything in particular. But I'm here on behalf of the Olde Cypress Homeowners' Advisory Council to urge you to take a stand to support the proposed FP&L route for the new power lines. We have had a number of discussions with a number of different county officials here as well as in Lee County. We've been very active in attending the meetings and looking at these alternative routes. The one that has been proposed by Collier of late would take power lines westward along Immokalee Road and then head up toward Livingston. And in my discussions with transportation officials, it does not appear that there is enough space along the existing Immokalee Road and the canal to put these kinds of power lines in. So we are opposed to them, and we would hope that the commission would see fit to draft a resolution in support of the FP&L proposed route heading eastward out Immokalee, and send that on to the governor. Thank you. MS. FILSON: Grover Whidden. He will be followed by Meggan Davis. MR. WHIDDEN: Good morning, Commissioners. My name is Page 84 March 9 & 1 O, 2004 Grover Whidden, the manager of external affairs for this region for Florida Power and Light. First I want to personally thank each of you for your participation and support of FPL's proposed transmission line in Collier County. Each one of you has been involved in the siting process, and further, I think, has caused the citizenry of Collier County to also be involved. And that's -- from our perspective, that's always a good thing. So we appreciate that. As you know, we've been involved in this siting of a new transmission line to provide for the growing power needs in Collier County for almost a year now. We've had a great deal of outreach activities with the community, and I think everybody is well informed as to what is being proposed. The new line is needed not only to support the growth that you've been talking about earlier this morning, but also very importantly, to maintain the reliability of your power supply here in Collier County. The FPL preferred route minimizes the impact to Collier residents while protecting our sensitive environment here, specifically the ecosystem of the Corkscrew Swamp. Your staff has reviewed -- spent a great deal of time reviewing our route, and we have resolved all the issues that your staff has had. As you know, the final decision regarding the route of the proposed transmission line rests ultimately with the governor and cabinet. And I think each of you are also aware that the governor and cabinet pay a great deal of attention to what local counties prefer when it comes to siting of these facilities. So for this reason, we are very much appreciative, if you can, lend your support for the route that FPL is proposing. Thank you. MS. FILSON: Meggan Davis. She will be followed by Amy Taylor. MS. DAVIS: Good morning again. Meggan Davis, for the Page 85 March 9 & 1 O, 2004 record, president of the Longshore Lake Board of Directors, the foundation. A new power transmission line is required by Florida Power and Light to meet the growing demands of Collier County. FP&L is in the process of siting that new electric power line transmission known as Collier Orange River, number three, between the existing Orange River substations in -- east of Fort Myers to our Collier substations east of Naples. The transmission lines are needed for a continuous supply of electric to Lee and Collier County with safe, reliable electric service. And reliability is the issue here. FP&L identified a route and -- which appropriately balanced many factors, including community and environmental. A geographical separate right-of-way is vitally important for ensuring reliable electric service in Southwest Florida. I contacted -- I emailed Commissioner Fiala and copied our Commissioner Henning, and requested that the Collier County commissioners take a stand on an official position on this. I think it's important. The governor will be looking, along with his cabinet, to make this decision fairly soon, in the spring, early summer, and I would think that he would be curious as to why Collier County hadn't weighed in one way or the other. Our community supports the FP&L proposed line, and we think it's -- it best serves the reliability issue, and reliability should be the major concern here. So we support it and we hope that you will too. Thank you. MS. FILSON: Your final speaker is Amy Taylor. MS. TAYLOR: Good morning, Amy Taylor, Collier County Public Schools. We are also in support of FP&L's preferred route. We appreciate Page 86 March 9 & 1 O, 2004 that FP&L has done its due diligence in evaluating its effects on public schools, the route that it had finally determined. The alternate route proposed would affect properties that are owned by the Collier County Public Schools, and we would not prefer that. So we are in support of FP&L's proposed route. And that's all. Thank you very much. CHAIRMAN FIALA: Thank you, Amy. That's all of our speakers? MS. FILSON: Yes, ma'am. CHAIRMAN FIALA: Okay. Commissioner Coletta first. COMMISSIONER COLETTA: Yes. Thank you very much. I realize where this is -- where this is going, and I do have to speak up on behalf of the people that live in District 5 that aren't here today. I assume that this will come back to us one more time when we get the resolution drawn up. But in any case, I want to point out a couple of factors on this that we're not considering. One, the people that are supportive of the particular route that FPL is endorsing do not live where the FPL route's going to go. Maybe that's just coincidence, but I want to point that out for one. Number two, this is going to impact thousands of people because of the thoughtlessness of how they're placing it right next to the road. Most transmission lines have been inland slightly. They've had access roads to them. They haven't been the eyesore or presented the danger to traffic that these do on 951 and also on Immokalee Road. I'm not saying that the route coming through from directly across might be the best route to go with in the whole world, but what I'm saying is, I need a little sensitivity to how the people feel in District 5 to this. They're not embracing this with open arms. I don't think you Page 87 March 9 & 10, 2004 have one supporter that lives anywheres near this line that's going to ever show up at one of these meetings and say, yeah, we need to build that line. And we keep going with this issue about the security. We need to have a separate line secure from the other lines because, if at some point in time we may have a terrorist attack, and those terrorists will be able to, very conveniently, take down both lines at the same time. Well, there's points where this is going to cross where other transmission lines are, which means it's still susceptible to terrorist attack. With the modem technology that exists out there with such things as garage door openers that can be manipulated, and timing devices that are numerous out on the market, it wouldn't -- that argument does not hold. I mean, it would be very easy at one point in time for any terrorist that's serious about it to be able to approach these lines, which are unguarded, undefended, and do whatever damage they want, and to synchronize their attacks would be totally effective. I just -- these -- I have an obligation to bring that up. And I want to mention the fact that we have power lines in District 5 now. One of them runs along 39th. It sits back in about, oh, two houses back in, and it goes through the area from one end to the other. It doesn't impact anyone. It's not an unsightly thing, because you're not looking at it unless you drive underneath it like I do twice a day, but the people that built that, which, I believe, was the -- Alico, in Fort Myers, and goes to Marco Island to meet their power needs, were a little more considerate at that point in time in what they did to be able to meet the needs of the neighbors that were coming. Let's just see if I covered everything I wanted to. Yeah, that's basically about it. I know which way you're going with this. I know it's going to happen, but I do want to make sure that when this goes out to the governor and his cabinet that my name is in very bold print, Page 88 March 9 & 1 O, 2004 maybe about a 24 type high -- COMMISSIONER HALAS: About this big (indicating)? COMMISSIONER COLETTA: You better believe it. It's (sic) totally opposed to this and the unfairness to it. I plan, under my own name, to write a letter to the governor and show him some pictures of what it looks like at this point in time and what the furore effect's going to be. I don't know if that's going to have an effect on the cabinet. But in any case, the people in Golden Gate and Immokalee, that live on Immokalee Road along on the agricultural lands, they deserve better. Thank you. CHAIRMAN FIALA: Commissioner Henning? COMMISSIONER HENNING: I guess there was some correspondence that I received-- I'd like to ask Mr. Summers, emergency management director, about-- and Commissioner Coletta brought it up -- about the reliability and safety issues, and I'd also like to say that this FP&L proposed transmission line, I'm going to live closer to it than a lot of citizens in District 5. MR. SUMMERS: Madam Chairman, Commissioners, Dan Summers, director of emergency management. For obvious reasons, the emergency management office was asked to look at a very narrow scope related to the redundancy and reliability and storm planning associated with this second line. We were not involved in any of the siting of such or right-of-way, proposed right-of-way identification. That was done so that our office could make a presentation to the administrative law group who heard that. So our focus was, again, redundancy, storm protection, we did discuss terrorism and those type of things. Our support and the experience that I relayed from the 11 declarations that I had in Coastal North Carolina, was a desire simply in a recommendation based on Page 89 March 9 & 1 O, 2004 good emergency planning to separate risk, or to minimize risk, and we've -- we supported that. I supported that in terms of having those lines that are separate and apart that do develop levels of redundancy. Some of that's engineering, some of that's switching, some of that's separation. And finally, I think the other part of that was, how quickly could we identify the location of failure or damage and how quickly can we gain access for emergency repairs. And as difficult as aerial transmission lines are sometimes from an aesthetic value, they are invaluable in emergency power restoration. So those were the points that emergency management had to convey, and those were the points that we shared. COMMISSIONER HENNING: Well, with that I'd like to make a motion that we direct staff to work with the county attorneys to draft a resolution supporting FP&L's alignment -- CHAIRMAN FIALA: I'll second that. COMMISSIONER HALAS: Second. COMMISSIONER HENNING: -- being on our second -- or next agenda. CHAIRMAN FIALA: Thank you. I second that. And Commissioner Halas, you also seconded it, right? COMMISSIONER HALAS: Yes. CHAIRMAN FIALA: Did you want to say anything further? COMMISSIONER HALAS: No. The question that Commissioner Henning asked, that's where I was going to lead to. And maybe one other additional to that, and that is, the general populous, when we look at the impact that is for District 5, I understand where Commissioner Coletta's coming from, but when we look at the overall picture, we've got to figure out where the general populous is and how fast we can get them back and up and running after a major storm event. Am I correct on my assumption on that? Page 90 March 9 & 1 O, 2004 Thank you. CHAIRMAN FIALA: Okay. I have a motion on the floor by Commissioner Henning and a second by Commissioner Fiala. One question I wanted to ask David. We're voting now to have staff prepare a resolution. Do we then need to come back and vote on that? MR. WEIGEL: Well, the motion that was made was for it to specifically come back at the next board meeting so that we'll create and bring back to you -- if the motion passes, we'll bring back to you at the next meeting as an agenda item a resolution in draft form for your approval. CHAIRMAN FIALA: Okay. COMMISSIONER HENNING: The reason I did that, the resolution in here, I don't think, fits Collier County. So that's the reason I think that's important. CHAIRMAN FIALA: Great. COMMISSIONER COLETTA: It's only fair. I agree. CHAIRMAN FIALA: Okay. motion now? COMMISSIONER HALAS: Yep. MR. WEIGEL: Yes. CHAIRMAN FIALA: Okay, fine. All those in favor, say aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: And opposed, like sign. (No response.) COMMISSIONER COLETTA: Nay. CHAIRMAN FIALA: We have a 4-1 vote; Commissioner Very good. So are we clear on the Page 91 March 9 & 1 O, 2004 Coletta dissenting. Item #9D DISCUSSION REGARDING FEMA UPDATE- STAFF RECOMMENDATIONS APPROVED MR. MUDD: Commissioner, the next item is 9(D), and that's a discussion regarding the FEMA update and approval of an emergency authorization to contract with private sector firms as required to perform studies and other items of work in support of Collier County's restudy of the flood insurance rate maps recently rescinded by the Federal Emergency Management Agency, better known as FEMA. And Mr. Joe Schmitt will present with Commissioner Coletta. COMMISSIONER COLETTA: Thank you. MR. SCHMITT: Commissioners, good morning. For the record, Joe Schmitt, administrator of community development, environmental services division. I'm going to go through a brief power point presentation because I want to highlight -- I'm not going to go through all the detail in the executive summary. That was primarily there for the record because this has been an ongoing issue, and I'm going to highlight kind of where we've been. This all started back in December of 1996, and that's when we were notified that the Federal Emergency Management Agency was going to look at Collier County and update the coastal flood insurance -- update the floOd insurance study and the corresponding flood insurance rate maps. In December, '98, they issued that flood insurance study. We raised concerns regarding the technical aspects of it and partnered with the city. And at that time, we hired -- jointly hired, Tomasello Page 92 March 9 & 1 O, 2004 Consulting Engineers to do the preliminary analysis. There's a long track record in between. I'll bump all the way up to December, 2001. That's when we basically began the formal appeal process. But at that time, we also agreed to try and mutually, at least in a cooperative manner, try and resolve the issue. Between September, 2002, and March just recently, we've been working with FEMA to resolve these issues, to discuss our objections, but, frankly, we also, the more important aspect of this, was to obtain the needed engineering, scientific and topographic data to improve the accuracy of the map, and that was the most overarching and prob -- or the most compelling aspect of staffs involvement in this. In sum, we really wanted to focus to ensure the accuracy of the maps, and to do so, correctly identify those who are in areas that needed to pay the flood insurance and those who are identified as having to pay but shouldn't pay, and that's -- that's pretty much where we were. Total cost to date this county has spent, at least from the county coffers, $356,000. You'll note, $235,000 of that was a joint study between -- where we partnered with the city and the county partnered in pursuit of the dispute in regards to, at that time, primarily having to do with the coastal surge model. That contract is under control of the City of Naples. We have an interlocal agreement with the City of Naples. The contract is controlled by the City of Naples. We amended that contract in January, another $57,000, to allow Mr. Tomasello and Tomasello Consulting Engineers to determine the base flood elevation, which is called the Sheet 2D study, which impacts the Golden Gate Estates. We spent $49,000 certifying the LIDAR, and another $61,000 developing vertical control throughout the Estates. I think the important issue here is to understand that that contract Page 93 March 9 & 1 O, 2004 -- and I'll get -- towards the end, I'll discuss the importance of where we're going now. But that contract was -- the city actually controls that contract. I think our successful accomplishments -- and we truly have some successful accomplishments. This staff diligently took LIDAR data, and with the technological advances that we have made in GIS over the last year, we certified the property appraiser's LIDAR data, and we submitted over 76,000 names to FEMA for what we called a mass letter of map amendment. Fifty-seven miles of vertical control that never existed in the Estates. We now have that. We now are requiring actual flood certificates for every new home being built in the Estates. And we merged the LIDAR data and the base flood maps. And the reason we're on the slide show here -- because I'm going to show you pictures of that. And all that is now on the Web. This is -- in the blue is the first order control around the Estates. Then the magenta or purple color is the second order control. We have second order benchmarks throughout the Estates. There are the points. There is a point now within almost a mile of every home in the Estates, so now homeowners can get legitimate flood certificates. Before we were using local datum. Eighteen inches above the crown of the road was the requirement. Now they have to build to flood elevation. This is a product where we took the LIDAR data, the light detecting and ranging data, and merged it with the FEMA maps. And this is the ongoing dispute. And I'm going to show you examples. These are X zones. X zones mean you do not have to pay flood insurance. You can see there's somewhat of a correlation. They missed this spot. This is in Naples Park, and these are some of the reasons why we've been disputing 'this. Actually, if one were to take this, this probably should have been the X zone. Page 94 March 9 & 10, 2004 Another good example is the next one. You can see this is an X zone. All this area. Interestingly enough, here's -- build a home right here in the middle of the lake and it's an X zone. This is what we've been disputing. We produced these maps, and I -- my hat's off to my staff, and I know Commissioner Coletta's going to give the names, so I'm going to hold off on that because he was with us up in Atlanta. But these are the products we took up to Atlanta a few weeks ago, almost a month ago now, and where we -- we disputed the quality of the product and displayed to them vividly that the maps that were produced inaccurately, at least, depict the flood -- the flood -- the capabili -- or at least the potential for flooding in Collier County. Here's another X zone down here. I'm -- down in this area, but if you look at how this X zone carries all the way through, certainly out into the middle of the lake, and these were examples upon examples of areas that were identified through X zones, meaning, an X zone means you were not required to pay flood insurance. We also successfully provided products to FEMA, and each one of these little red spots are house pads that are throughout the Estates. And you can see, interestingly enough, here's an X zone as well. Very little correlation to what exists. An X zone right here. The blue is a lower grade. The red is a higher grade. Here's another large X zone, and this is what we've been dealing with for the months and months. One of my staff, Kevin, actually merged the base flood elevation data with the LIDAR, and basically geo rectified it, and now produced a product that we had the capability to vividly display this to the folks up in FEMA. What FEMA did was -- with some of this data and these house pads now, they have taken basically the 7,600 names or property owners and properties and are trying to identify those properties that Page 95 March 9 & 1 O, 2004 could be deemed to be out of the flood zone, and we're still waiting for that information. Well, here's where we are. Friday we had a conference call, Commissioner Coletta was on that conference call, and we convinced FEMA to grant us a 16-month extension. Criticality is that Collier County has eight months to provide all the necessary data to update the flood insurance rate maps. We committed to FEMA that we would provide them the analyses, the topographic, scientific, and engineering analyses in order to provide the data they need to update, and they agreed, they will now upgrade the entire Collier County flood insurance rate maps that were produced over eight years ago. The criticality is the time frame. By December 1 st, we have to have to them the information. They will follow up with an additional eight months of editing the maps, and then publicly vetting those maps through the required process that they have to go through. We committed to three things: We would meet the imposed time frame. We were, quite honestly, hoping for six months, and we even pushed for eight. We recognize that if we miss the imposed date of December 1st, that they will probably implement the current maps or the revised maps that exist, and we basically said we would stand behind the results, and what I mean by that is, standing behind the results, we recognize that there are some people who are identified right now in an X zone who may have to pay. But our position, along with the support from Commissioner Coletta, was that all we want to do is do the right thing. Those that need to pay and are deemed in a flood zone should be told and identified and have to pay flood insurance, and certainly those who are not should not. So that's -- that's where we -- that's what we committed to. Page 96 March 9 & 1 O, 2004 Tomasello Engineers, the -- our consultant said he -- he could meet the requirement. He would do five basin wide studies. The five are shown on the slide. And he would, based on that, determine new base flood elevations based on the engineering and scientific data through those studies. The criticality, again, is they have to be done by the first of December. We looked -- this is just a schedule. I won't go into detail. But if you look up here, we're projected we can make that happen. And we have Peter Hayden and Stan Chrzanowski, Peter from Norm's staff, and Stan from my staff, if you want to -- have any questions in regards to some of the details. But the good thing is that these five basin studies will provide some needed information that stormwater management has always needed to begin with. We're asking -- we think we can do this for right now, $160,000. Given the imposed eight-month deadline, the scope of work, and the time needed by the contractor, the fact that the county's been working with TCE, Tomasello Consulting Engineers, since 1988 (sic), we think it's prudent -- MR. MUDD: 1998 or-- MR. SCHMITT: 1998, thank you, Jim. We think it's prudent and far more cost effective that we continue with this contract. We want to enter into contract ourselves, Collier County, not amend the interlocal agreement as we just did, and mod the contract that the city has. We'd like to enter into our own contract, and-- because of that, it's going to be deemed an emergency. Potential savings to the county, to the property owners, could be in the millions of dollars when we're talking about flood insurance. Our recommendation that the Board of County Commissioners declare the situation an emergency, a valid public emergency in accordance with the Florida statute and you approve and authorize the Page 97 March 9 & 1 O, 2004 chairman, or the chair, to sign a standard county -- a standard contract not to exceed $175,000, and that's our recommendation. The critical time element here is the emergency in regards to meeting the time frame that's been imposed upon us by the Federal Emergency Management Agency in regards to me getting that data. And the sooner we get -- we get the recomm -- or the sooner we get this contract executed with TCE, the sooner Dick Tomasello can start the work. And I know Steve is here, Steve Carnell is here, if we need to chat about the Florida statute. But with that, that concludes my presentation. And I know Commissioner Coletta'd like to add his -- his words on this as well, so I'll stand by and await any -- any questions. COMMISSIONER COLETTA: I'm very proud to say that our staff was -- did a remarkable job in bringing this around to successful conclusion. I worked on this particular thing for six years now. I was involved with it back when I was president of the Golden Gate Estates Civic Association, and it was something that didn't seem was ever going to reach resolution. I did quite a bit of research on it, and I can tell you there's never -- I don't think there's ever been a community that's been as successful with their negotiations with FEMA as we have. And the reason for that is very simple. It's because of the fact that we have a tremendous staff that can sit down and negotiate facts. It's pure science, which it should be based on in the first place. We originally started this movement under way with a little bit of saber rattling, as you might say. We involved our congressman who was tremendously helpful, Mario Diaz-Balart. We involved the community through community meetings. We held a mass meeting that consisted of hundreds of people at the Gulf Coast High School. Page 98 March 9 & 10, 2004 We had all these things under way to make it happen. Well, I'll tell you what, it got the attention of FEMA, but it also got their anger up a bit. But I can tell you that in January when we went -- January? No, February, excuse me -- we went for our first face-to-face meeting -- MR. SCHMITT: Yes. COMMISSIONER COLETTA: -- at that point in time, I would probably say that FEMA was not all that receptive when the meeting started. They assumed, from past experience, that the only thing we were going to do was ask for delays. Delays, delays, delays, challenge the data, ask for more delays, and keep it going to that point in time in the future when, I don't know, the world comes to an end or something else takes place. But we went in there, and we just told them the plain facts. The only thing we want is honest representation of what the flood risk is for our residents. And this isn't only Golden Gate Estates. This is all of Collier County. So what we're looking at here today is just the beginning. We're also going to have to take the show on the road and be able to cover the rest of the county to be able to meet the true needs of the citizens there, to make sure that their safety's provided for. But I want you to know that Joe Schmitt, who is our administrator of community development and environmental services, did an admirable job. He helped through the negotiations, and our staff that was there to support him, such as Stan Chrzanowski, our senior engineer with engineering services department, Pat -- Patrick White was tremendous. I mean, Patrick White not-- is only an attorney (sic), but he has, I believe it's a degree in science, and so his background was absolutely tremendous in being able to keep the discussions going forward. Jim Turner, the FEMA coordinator, he was totally up on what Page 99 March 9 & 1 O, 2004 was taking place. Matt Hatcher, environmental service department, was very instrumental in this taking place. And, of course, Kevin Gotfredson, our GIS technician, and CDES operators, they were all absolutely critical to making this come. When we got all through, FEMA started looking at what we were saying and the fact that what we were asking was true science to be applied. And when it got down to the very end -- and Joe, you can correct me if I'm wrong -- they told us to go forward and apply the true science and then bring it back to them. And as long as it falls within their criterias, they'll accept the final outcome. MR. SCHMITT: That's correct. And ifI could add Bob Devlin from the City of Naples as well. COMMISSIONER COLETTA: Forgive me for forgetting Bob. MR. SCHMITT: And I left that off because of the -- this has been a partnership with the City of Naples in regards to the coastal surge model. TCE is going to continue to work the coastal surge model process, and that -- all the coastal maps have been delayed as well, so-- COMMISSIONER COLETTA: One of the things that we're all going to have to realize, that it's not a question of us against them. Now we're partners in this to bring resolution to this, to be able to make it go forward. Now, the ball's in our court to produce. And one of the things that ! asked early on, and Joe Schmitt and his staff was -- came across within a timely fashion -- was a mile marker type of program where we'll be able to measure our results. And with that, we'll be able to make sure that everything falls within the correct time frame so that we can get to the end with the measurable results that's going to have the impact that we need. We're going to have to be -- we're going to have to be realistic and realize that we're not going to ever reach that state of perfection Page 100 March 9 & 10, 2004 where everything is covered to the nth degree. There's going to be such things as places that are going to be in the X zone that we'll be able to eventually mitigate them out through certain types of drainage, through other means that will be available to us. They'll cost money, but they'll also have an impact on what happens. But one of the things that we've got to keep in mind is the fact that, true, we have not had a serious storm since Donna back in '62, was it? MR. WEIGEL: Sixty. COMMISSIONER HALAS: 1960. COMMISSIONER COLETTA: -- '60, 1960. Prior to that point in time, hurricanes were coming and hitting this coast every 10 years on a regular basis, and one year we even had two major storms. We have a tremendous amount of exposure out there, and we need to work that into the science of what we're going to be doing to make sure that we not only provide something that's a fair and equitable way for these people to -- for insurance purposes, but also, that we can plan our future drainage needs and everything to mitigate the dangers that are going to be there. This is the responsible thing the government should be doing on a regular basis. And once again, Joe Schmitt and your staff, I congratulate you for a job well done. MR. SCHMITT: Oh, I'd like to also -- and I'd thank you, Commissioner, but I'd like to also recognize Abe Skinner and Larry Lawrence from the appraiser's office, because without the LIDAR data, we would have been nowhere. And so, with those products, I think we've made tremendous strides. So, again, thank you, Commissioner, but we do have to make -- CHAIRMAN FIALA: Move on. MR. SCHMITT: -- vote as to whether or not we're going to Page 101 March 9 & 1 O, 2004 approve this. COMMISSIONER COLETTA: Well-- CHAIRMAN FIALA: I am so impressed with what all you've done and the cooperative effort with which everybody has worked together and persevered and never let up. COMMISSIONER COLETTA: Could I have the privilege of making the motion for approval? CHAIRMAN FIALA: You bet 'ya. COMMISSIONER COLETTA: I'll make that motion. CHAIRMAN FIALA: I've got two speakers, but -- COMMISSIONER HENNING: I'll second it, and I won't take 10 minutes. CHAIRMAN FIALA: Go ahead. What is your motion? COMMISSIONER COLETTA: I just did. The motion is to approve staff recommendations, and Commissioner Henning just seconded it, and he's going to take less than 10 minutes. CHAIRMAN FIALA: Okay. COMMISSIONER HENNING: I just did. I second it. CHAIRMAN FIALA: I have -- Commissioner Henning, did you want to make any comments or was that it? COMMISSIONER HENNING: That's it. CHAIRMAN FIALA: Okay. Commissioner Coyle? COMMISSIONER COYLE: I'm going to take his 10 minutes. I wholeheartedly support this, and I want to commend the staff and Commissioner Coletta for the fine work that has been done here. I am troubled by one thing, however, and that is that there does not seem to be much information concerning the progress that has been made in challenging these issues along the coastal area to include East Naples, not necessarily the city, but certainly including the city. I think we have done a great job working together on this, and I Page 102 March 9 & 10, 2004 do not think we should lose sight of the fact that it was, in fact, the city that brought this entire issue to our attention. And I came into this room and made the first presentation to our legislators to try to get their support and focus their attention on the Golden Gate thing. So my point in making that statement is, I do not wish to diminish the work that has been done by others, but I don't want to see us begin to focus on one part of Collier County to the exclusion of others. This is a county-wide project. And I believe when we -- when we're dealing with this, we need to keep everybody in Collier County in mind with respect to the impact. It is not an issue of who isn't required to have insurance today and who might be required to have insurance tomorrow. It is who has built a house at 11 feet above the flood elevation who is now going to be put into a situation where they're no longer in compliance. And what effect will that have upon the resale and the ultimate insurance of that particular dwelling? There are some very serious issues associated with that, and I think we need to make sure we focus on it all. MR. SCHMITT: Commissioner, the -- the time frame is to meet all the reports, to include the coastal surge model. We've had tremendous successes with that as well in regards to accepting -- FEMA accepting the data. It impacts Vanderbilt Beach as well as the entire coastal area. So that 1, December, is for all the studies to be to FEMA to update the entire set of maps for Collier County. COMMISSIONER COYLE: Okay. It would be helpful, I think, if we were to issue status reports that cover all of those areas rather than just focusing on one region of the county. That region is important, but so are the other regions, and I think we need to represent the entire county, not just select little geographical areas and focus on those to the exclusion of others, okay? Page 103 March 9 & 1 O, 2004 CHAIRMAN FIALA: Thank you. Any other further -- any further comments? (No response.) CHAIRMAN FIALA: We have a motion on the floor-- MR. WEIGEL: I have some. CHAIRMAN FIALA: Yes, David. MR. WEIGEL: Well, it's just I'm -- in regard to -- although you haven't asked me to restate the motion, the motion on the floor was, in fact, to adopt the recommendation of the executive summary, and if I may summarize it briefly for the record, that the Board of County Commissioners declare this situation to be a valid public emergency in accordance with Florida statute, 287.055, the consultant's competitive negotiation act, section three, but also, I would note that the board, in making the motion and approval, waive the county purchasing policy to the extent necessary. It further goes on to indicate that the board approve and authorize the chairman to sign a standard county attorney approved contract for the stated studies, as indicated in the executive summary, and related activities up to an amount not to exceed $175,000. So that was the motion, and I have added to that the reference to the county's purchasing policy, that it is waived to the extent necessary to make this selection and approval of contract. COMMISSIONER COLETTA: That was my motion. Thank yOU. CHAIRMAN FIALA: Okay. And your second? COMMISSIONER HENNING: (Nods head.) CHAIRMAN FIALA: Okay. We have an amended motion and second on the floor which has been read through by our county attorney. All those in favor, say aye. COMMISSIONER HALAS: Aye. Page 104 March 9 & 1 O, 2004 COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: (No response.) CHAIRMAN FIALA: And opposed, like sign. And with that, we're going to break for lunch. MR. MUDD: Ma'am, and to reconvene at 1:30. You have the -- I'll remind you, Commissioners, we have the lunch with the Know Your County Government Program with the high school over at the Methodist meeting room. That's over here. CHAIRMAN FIALA: Oh, okay. (A luncheon recess was taken.) MR. MUDD: Madam Chair, you have a hot mike. Ladies and gentlemen, please take your seats. CHAIRMAN FIALA: The meeting is back in order. Item #10C COUNTY SPONSORSHIP FOR US MILITARY APPEARANCES DURING JULY 2-5, 2004, INDEPENDENCE DAY CF, I,F, BRATION - APPROVED What I've asked actually to do -- I was asked by somebody to -- actually asked by Leo if we could just quickly address 10(C) first. I realize we have a 1:30 time certain, but Leo had suggested if we could just get in here a little bit early. We're only two minutes early, but -- maybe we-- COMMISSIONER COYLE: Could I make a motion? COMMISSIONER COLETTA: I'll second it. Page 105 March 9 & 10, 2004 COMMISSIONER COYLE: To approve. COMMISSIONER COLETTA: Sure. COMMISSIONER COYLE: Okay. I've made that motion, and we've got a second, right? COMMISSIONER COLETTA: Yep. COMMISSIONER COYLE: Madam Chair? CHAIRMAN FIALA: Okay. We have a motion from Commissioner Coyle to approve the agenda item 10(C) to authorize the expenditure of $50,000 for expenses related to the Collier County Independence Day celebration and approve any related budget amendments, and it was seconded by Commissioner Coletta. Any further discussion? (No response.) CHAIRMAN FIALA: All those in favor, say aye. COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: (No response.) CHAIRMAN FIALA: And opposed, like sign. And we're still a minute early. MR. MUDD: Do you have any speakers on that one? MS. FILSON: No. COMMISSIONER COYLE: Tell them forget it. CHAIRMAN FIALA: And we're here with a minute to spare. MR. VEIT: Thanks, guys, so much. Item # 10A WRITTEN AND ORAL REPORTS PRESENTED IN Page 106 March 9 & 1 O, 2004 ACCORDANCE WITH ORDINANCE 2001-55 FOR THE CITIZENS ADVISORY TASK FORCE; COLLIER COUNTY CODE ENFORCEMENT BOARD; CONTRACTORS LICENSING BOARD; GOLDEN GATE PARKWAY BEAUTIFICATION ADVISORY COMMITTEE; IMMOKALEE BEAUTIFICATION ADVISORY COMMITTEE; ISLES OF CAPRI FIRE CONTROL DISTRICT ADVISORY BOARD; PARKS AND RECREATION ADVISORY BOARD; AND COLLIER COUNTY WATER AND WASTEWATER AUTHORITY. ORDINANCES UNDER CEB TO BE CONSOLIDATED INTO ONE AND CHAIRMEN TO WRITE LETTERS TO EACH CHAIRPERSON OF LISTED ADVISORY BOARD MR. MUDD: The next item will be 10(A), time certain 1:30. It's review the written and oral reports of the advisory boards and committees scheduled for review in 2004 in accordance with ordinance number 2001-55, including the Citizens' Advisory Task Force, the Collier County Code Enforcement Board, Contractors' Licensing Board, Golden Gate Parkway Beautification Advisory Committee, Immokalee Beautification Advisory Committee, Isles of Capri Fire Control District Advisory Board, Parks and Recreation Advisory Board, and the Collier County Water and Wastewater Utility Authority. And Ms. Winona Stone will present. COMMISSIONER COYLE: Can we do these all at once? MR. MUDD: No. COMMISSIONER COYLE: You have to do them individually? MR. MUDD: Yes. MS. STONE: Yes, sir. COMMISSIONER COYLE: Well, you know, they're in our packet, we've read them, we've read the report. Page 107 March 9 & 1 O, 2004 Can I make a motion? MR. MUDD: Sir, you have somebody -- Winona's not going to do these. You have representatives from each one of these advisory committees, the chairs, and they know they're going to try to keep it down anywhere between three and five minutes -- CHAIRMAN FIALA: Oh, okay. MR. MUDD: -- to supplement what's in the written package. Winona? MS. STONE: Good afternoon, Chairman Fiala and Commissioners. Winona Stone, assistant to the county manager. I won't read over the list. I think your presenters are prepared to go in the order that Mr. Mudd had just gone through. We do have the majority of them here as far as ! can tell at this point. I just wanted to remind you they're up for review every fourth year based on a rotating basis. This year you have eight that will go over their annual reports for you to determine if they're meeting the needs for which they were created and to determine if anything needs to be changed so that they could operate more efficiently or effectively. If there are no questions, I'll go to your first speaker. The first presenter is David Corban with the Citizens' Advisory Task Force. He is the chairman. MR. CORBAN: Good afternoon, Commissioners. Again, my name is David Corban. I'm the chairman of the Citizens' Advisory Task Force. As you know, we are a five-member group that assists your staff at the -- at the Financial Administration and Housing Department in disbursing the Small Cities Community Block Grant, or CDBG money. I know I speak for my fellow CATF members when I say that it's been a pleasure working with Denny, Jeanine, and all the other Page 108 March 9 & 1 O, 2004 members at FAH in their capacity with the funds for CDBG. CDBG moneys have gone to fund projects that aid our citizens and communities in need. These programs put people to work, help our citizens become homeowners, and fund programs as diverse as streetlighting in Immokalee to housing that helps challenged citizens re-enter society. In 2005, the CDBG money will go directly from the federal government with a mandate for grass-root community involvement in the program. Currently staff works with organizations that provide services to the needy with little contact or input from those who actually benefit from the programs. Under the new program, the FAH staff will actually go in the community, and with input from the citizens, determine the greatest need and best use of the funds. We appreciate your support of the program and the staff that administers it, and I would like to invite the commissioners on our annual tour of CDBG funded products underway and complete. Commissioners Fiala and Coletta have joined us in the past, and this year I hope to see all of you on the bus. Thank you very much. MR. MUDD: Commissioners, do you have any questions? (No response.) MS. STONE: Your next presenter is Clifford Flegal. He's the chairman of the Code Enforcement Board. Mr. Flegal. MR. FLEGAL: Afternoon, Commissioners. As you know, Code Enforcement Board is a seven-member board with two alternates. What we do is hear cases brought forward to us from the Code Enforcement Department, possible violations of your codes and ordinances. We hold hearings, make a determination whether there, in fact, is Page 109 March 9 & 10, 2004 a violation. If there is, we determine what's to be done to correct it. If it's not corrected in a time we set, we assess a fine. All our fines are recorded, they then become liens on property, which then can be foreclosed. We stay busy, but fortunately for us, people are aware of us. The Code Enforcement Department has been very fortunate since people know of the activity. They worked well with the investigators. And we really, I think, have come down in the cases we have heard. There is no other board or agency under your power right now that does what we do. We're all volunteers and we appreciate it. We've turned cases over to the county attorney for foreclosure. We also, during the hearings, if we determine there's a safety factor, we order the county to resolve the problem, and the cost that the county expends is then assessed to the violator. Any questions? I'll be glad to answer them. COMMISSIONER COLETTA: Great job. MR. FLEGAL: Thank you. MS. STONE: I'd like to make a comment on that. There was a recommendation included in the report from the Code Enforcement Board that they consolidate. There's, I think, five ordinances that they're currently acting under, and they would like to consolidate that into one ordinance. CHAIRMAN FIALA: How does staff feel about that? MS. STONE: I -- Michelle Arnold is shaking her ahead affirmatively. I would think -- it would be easier for staff also to operate under one ordinance. CHAIRMAN FIALA: Commissioners, any comments? COMMISSIONER HENNING: I think that's the direction. CHAIRMAN FIALA: Okay. You get five nods from up here. Thank you. Do you need a vote on that? Page 110 March 9 & 1 O, 2004 MR. MUDD: We're okay, Commissioner. CHAIRMAN FIALA: Okay, fine. MS. STONE: It will come back to you. The ordinance will come back to you. CHAIRMAN FIALA: Great. Thank you for the report and the recommendation. MS. STONE: The third speaker is Les Dickson with the Contractors' Licensing Board. He's the chairman of that board. MR. DICKSON: Good afternoon, Commissioners. We are a nine-member board made up of six contractors and three citizens. We are full at the present time, and we handle complaints and disputes with citizens of Collier County and the construction industry trades. Give you an idea of the volume that we see, the office receives over 400 calls in a monthly period. We have an unbelievable staff, or you have an unbelievable staff, because very few of those complaints ever get to our board meeting because they're handled by the staff. But we do control the construction industry. Any complaints that may arise. And, quite honestly, it's running very smoothly. We have no need for any improvements. We have a wonderful board. Mr. Coletta's been very, very supportive of our board in the past, and we appreciate you very much. COMMISSIONER COLETTA: We appreciate you. MR. DICKSON: It is a sincere pleasure to serve you. CHAIRMAN FIALA: Thank you, sir. MS. STONE: Fourth speaker is Ms. Cheryle Newman. She's the chairman of the Golden Gate Parkway Beautification Advisory Committee. MS. NEWMAN: Good afternoon. I'm before you again. Four years, again, since I saw you last on this advisory board. The Golden Gate Beautification Advisory Board has been in existence since the late '80s. And we were one of the first MSTUs put Page 111 March 9 & 1 O, 2004 together for beautification throughout Collier County. We are a five-member board, and I am their chairman. And if you have any questions, I'd be more than happy to answer them for you. I don't really have much to say. Everything is in the report. If you have some questions, I'd be willing to answer them for you. CHAIRMAN FIALA: No. Thank you. But you're doing a great job. It just looks beautiful. MS. NEWMAN: Thank you. We have a few more things we want to do. CHAIRMAN FIALA: Thanks. MS. NEWMAN: Thank you. CHAIRMAN FIALA: Well, we'll look forward to seeing them done. Knowing you, they'll get there. MS. STONE: Okay. Ms. Cheryl (sic) Tims was scheduled to speak on the Immokalee Beautification Advisory Committee. She's the chairperson for that committee. I don't believe she's here, so Diane Flagg will answer any questions you may have on that report. MS. FLAGG: Commissioners, I'm not going to -- Diane Flagg, for the record. I'm not going to read what's in the report other than that the Immokalee Beautification MSTU has made a lot of progress in the projects that they're working on, and I'm open to any questions you have. Okay, thanks. MS. STONE: The next speaker is Mr. Jim Louis. Is Mr. Louis here? MR. LOUIS: Yes. MS. STONE: Oh, great. He is the chairman of the Isles of Fire -- excuse me -~ the Isles of Capri Fire Control District Advisory Board. MR. LOUIS: Good afternoon, Commissioners. Page 112 March 9 & 1 O, 2004 Beyond the written report that was submitted to you already, there really is only one issue that is of major concern between us as a board and yourselves as a board, and that is a rumor that has been circulating around the Isles now for several weeks and coming from some heavy hitters that you as a board would wish to divest yourselves of the Isles of Capri Fire Department, would like to see us either get taken over by East Naples or become an independent district. I would like to be able to tell the people that were circulating that, yes, you're right, and you have to take that into consideration, or tell them, once and for all, where did you get your information? It ain't so. Can you help me with an answer? CHAIRMAN FIALA: Well, I can tell you where I'm coming from on that and from what I understand the board is doing. We've had a few reports that the Isles of Capri Fire Department has been -- has been negotiating -- let me say communicating with the East Naples Fire District as well as Ochopee, and that they're just in discussion stages. We haven't heard -- but so far when we've had anybody -- like Chief Rodriguez was here. He seemed to nod his head thinking that that was something that they were at least talking about in a positive sense. As far as divesting us from you, we haven't ever talked -- MR. LOUIS: I guess what I'm trying -- I'm sorry to interrupt, but I know my time is limited. We have three choices facing us as a board to recommend. One is to go ahead with a merger, two would be to become independent, and three is to be status quo, that is continue our relationship with the county commissioners as it presently is. You have no problem with our accepting either one of those three Page 113 March 9 & 10, 2004 that seems to be best in the needs of our department, needs of our area? MR. MUDD: Commissioner, if you remember how this came up, Chief Schank from East Naples, with the other two dependent fire chiefs, came forward to the board, petitioned the board, asked the board permission to start negotiations to try to consolidate the two dependents into one. We listened to -- we, you, listened to that particular petition and basically said, go ahead and do the nego -- do the negotiations and start the discussion, but at no time did you make a decision one way or the other. You wanted to let them talk and figure out what -- the best thing to do for those particular three fire districts. CHAIRMAN FIALA: And we've never stated that we wanted to get rid of or divest ourselves of you, never. MR. LOUIS: Thank you. That was the answer I was looking for, and I'm very happy to hear it. CHAIRMAN FIALA: Very good, Jim. MR. LOUIS: We will carry on with that in mind. CHAIRMAN FIALA: All righty. MR. LOUIS: Thanks so much. CHAIRMAN FIALA: It's good that you bring things like that up. We can't -- you know, we can't fix a problem if we don't know what's broken. Thank you. MR. LOUIS: Exactly right, thank you. Any questions? MS. STONE: Your next presenter is Mr. John Ribes (phonetic), and he's the chairman of the Parks and Recreation Advisory Board. MR. RIBES: Good afternoon, and thank you for having us here. I'd like to report to you that the PARAB, as we're called, alive and well, seven members. They're very, very strong individuals, very conscientious, and very committed to parks and recreation. Page 114 March 9 & 10, 2004 We have an excellent rapport with the staff of parks and recreation. We think that the parks and recreation is a great, great asset to the county of Collier County. They do a marvelous job, and we are pleased to work with them. Relative to our commitment and participation with the citizens, I would say based on or judging by the number of people that come to us and share their views and concerns, I think we're doing an excellent job. Other than the other things that are reported in the paper that was submitted to you, I would say that we want to continue as a board to consider and focus on three points, one of them being acquisitions of lands. We think that's critical to parks and recreation. We want to continue our participation in the area of beaches as they relate to recreation. And we think it's very important and would like to suggest to you that in the early planning stages of projects, that parks and recreation has an opportunity to look at how places are being developed and whether or not parks and recreations might be a contiguous part of that process. Thank you very much. CHAIRMAN FIALA: Any questions? MS. STONE: And the last presenter today will be Bleu Wallace. He's going to be presenting on behalf Dr. Fay Biles, who, I believe, is working the election polls today, and he'll be presenting on the Collier County Water and Wastewater Utility Authority. MR. WALLACE: Thank you. For the record, Bleu Wallace. I'm the executive director of the Collier County Water and Wastewater Utility Authority. It's a five-member board that was established by the Board of County Commissioners back in 1996 when the board opted to take back jurisdiction from the Public Service Commission over the eight investor-owned utilities at that time. Since then, four of the utilities have come under governmental Page 115 March 9 & 1 O, 2004 control. And right now we have four utilities that we have jurisdiction over; Orange Tree Utilities, Goodland Isles, North Marco Utility, and limited oversight over the Florida Governmental Utility Authority in Golden Gate City. When the Florida Water Utility was purchased by the City of Marco Island -- and that was -- the closing, I think, was in November of 2003 -- our staff lost revenue of about 80 percent of our revenue. So we're looking at lean times right now. But with Ave Maria coming online, they will -- I am informed, they will be an investor-owned utility, and we look forward to -- to having jurisdiction over that utility. Any questions? CHAIRMAN FIALA: Thanks, Bleu. Okay. Now-- MR. MUDD: Commissioner, that-- Madam Chair, that basically completes the list of boards that you are going to hear today and for this year, the review. There's eight. Next year you'll have 20, and we'll do that over several sessions. CHAIRMAN FIALA: Thank you. MR. MUDD: Do you have any -- CHAIRMAN FIALA: Do we need to approve or anything? MR. MUDD: Do you have any additional direction that you would like to give us on these particular eight boards? If not, they will stay in existence and they will stay within their charter and move on. I think the one piece of direction that we did receive was try to consolidate those five ordinances into one so that the Code Enforcement Board can go to one document instead of having to reference five. And Ms. Arnold and Community Development's Environmental Services will start working on that in concert with the County Attorney's Office. Page 116 March 9 & 1 O, 2004 CHAIRMAN FIALA: Commissioner Coletta? COMMISSIONER COLETTA: Yeah. Just one point. I think it's -- these boards really serve a very important process -- purpose in our government process. Possibly we might be able to direct the chair to write letters to the heads of each board that appeared before us today thanking them very much for their time and that we do appreciate their efforts? CHAIRMAN FIALA: Thank you. That's a great suggestion. I'd like to do that. Thank you very much. COMMISSIONER COLETTA: I don't know if you've got enough nods, but -- COMMISSIONER HALAS: Yes. Item #9E DISCUSSION REGARDING AQUACULTURE USE ZONE IN COLLIER COUNTY- CHAIR TO WRITE LETTER EXPRESSING BOARD'S RECOMMF. NDATION OF AI.TERNATIVE ONE CHAIRMAN FIALA: Okay. Then we move on to 9(E). MR. MUDD: 9(E), which is a discussion regarding aquaculture use zone in Collier County, and this was asked to be put on the agenda by Commissioner Coletta. COMMISSIONER COLETTA: Thank you. On this one I'm not going to clam up. I had to get that one in. Actually, this is something that's been in the works for some time, and the person that's the authority on it, well known as the patron saint of clam farming for Collier County, Captain Matt Finn, is going to make a brief presentation on what he would like the letter to include when it goes to the state. The state has sent us a letter telling us they need some sort of action from this commission as to what we want Page 117 March 9 & 10, 2004 done. And go ahead, Matt. You go ahead with that. DR. FINN: Patron saint of clams. That's a great thing. Matt Finn. I work with the Aquaculture Task Force. And just a background, we've been trying to bring clam farming into Collier County for almost four years now. The latest thing we did was a series of two workshops on January 7th, again, to sort of inform people of the whole process and also to sort of gauge the amount of interest that we had from the various fishermen. After that meeting, the director of the department of shellfish, Mark Berrigan, sent a letter to Commissioner Coletta requesting some action from the Board of Commissioners. And he offered two alternatives. One alternative, the one we're not really recommending is for a larger number of people, which, I don't know, the process then seems to take forever. And the sec -- the first of the two alternatives, the one that we're trying to go for now, he recommended as a fast track. So, you know, be that as it may. And he asked for several things from the board to help us along that faster track to allow the leases to be allotted to the various fishermen okay. Now, let me see. Well, we -- what I've looked at here -- first thing from the board we'd like to request, that they have -- hold another workshop, and this is for the Division of Aquaculture to provide assistance in completing the application forms for these submerged land leases, and to inform applicants about the survey requirements. And everyone's underwater lease has to be technically surveyed and marked out according to their standards. And every -- most all -- everyone pretty much knows this process already. They seem to like to reiterate everything along the way. Page 118 March 9 & 1 O, 2004 From these two workshop meetings that were held in January -- you know, we tried to put out the word as best we could. It looks like the interest has actually diminished from the original close to 70 people who expressed interest, to now 15 to 20 people. And that's what it looks like we have now is really like maybe 15 to 20 people who really want to try to get in it and try this experimental endeavor. And if we can ask that the number of leases allotted be limited to 20, that allows us to go into a faster track with less agenda items for the board of trustees to consider, okay? Perhaps, we only have to get onto their agenda one time. So we would ask that you set a limitation of 20 -- of leases in the county waters. However, since now we're trying to limit to just 20 -- we have two different sites -- we would also ask that each applicant be permitted, if they desire, to have one area in each of the two sites, or two parcels, two leases -- actually it be considered as one lease, but two parcel areas, and that sort of improves the chances for success. If one of these, basically, untested areas are not very productive, they could fall back on the second area. In addition to that, I thought -- and other people thought it would be a good idea to include a few parcels for research so that in the future if someone from the county or the state wishes to help in developing techniques or for new products for aquaculture, they have a -- they have a site set aside already. You know, they can feel welcomed into the commercial people's community to go ahead and help us out in that way. Just as a sort of paperwork thing, there's been some of the people with experience in clam farming in other areas of the state, thought it would be a good idea to increase the easement areas between the lease, increase the easement area from 20 feet to, say, 50 or 100 feet. It may help with some of the things that come up later during the farming process. Page 119 March 9 & 1 O, 2004 And the final point is to -- as a clause onto everyone's lease, not allow the leases be transferred or sold for a period of three years. And this is to try to avoid some of the problems that have come up in other areas of the state where the persons who get the leases aren't really interested in going and doing the dirty work. They just want to try to, like, use the government to make money. So if we say, you have to work your lease, you know, that will eliminate that small faction that may actually just be trying to use the system. CHAIRMAN FIALA: Commissioner Henning? COMMISSIONER COLETTA: Oh, I'm sorry. Go ahead. COMMISSIONER HENNING: Is it that we're going to have a workshop or is it, the BOT's going to have a -- DR. FINN: This would be from the State Department of Agriculture. COMMISSIONER HENNING: Okay. Where's the proposed land leases' location? DR. FINN: The two sites that have already been selected and cleared by, you know, the managers of the underwater area of Rookery Bay, one's near Cape Romano and the other one -- they're both in Gullivan Bay. COMMISSIONER HENNING: Okay. DR. FINN: And one is sort of, you know, south and east of Cape Romano, and the other one is out south of Hog Key or-- COMMISSIONER HENNING: Yeah. DR. FINN: It's just generally shallow water. We did a lot of work trying to pick these sites, ones that aren't being used much at the present by recreational fishermen, and also having the proper bottom components that would be good for the clams. COMMISSIONER HENNING: That was my concern of the use of-- where -- the location of and how it's going to potentially interfere with others. I didn't want a bunch of clamoring out there. Page 120 March 9 & 10, 2004 DR. FINN: What's going to happen -- well, the leases are going to be well marked. We're going to ask people not to anchor, you know, where they could disturb some things. But what is going to happen is, it is going to become an area of increased recreational fisheries, and that's like a side bonus of coming -- we're talking an area that is basically sand and mud bottom. It's not much happening for fish. And there's going to be certain structures around, and clams, which are food for these species growing on the bottom, and before long it's going to become similar to these artificial reefs. Much increased population of fish is what we're -- COMMISSIONER HENNING: Well, I'm in favor of alternative number one, limit it. DR. FINN: Limit it. That's the course of action we think's, you know, going to be best for us. And hopefully we can stick with that and get this thing rolling. COMMISSIONER COYLE: Was that a motion? COMMISSIONER HENNING: Do we need a motion, or is it direction? MR. MUDD: Commissioner, you just need to give us some direction to say which alternative you're going to use, but based on cap -- or Dr. Finn's? DR. FINN: Dr. Finn, yeah. MR. MUDD: -- Dr. Finn's comments and the interest, you probably want to start small and then -- and then if it takes off, then you can always get big. If you start big, what's going to happen is you're going to run into so much bureaucracy that it will probably kill the effort before it ever gets started. DR. FINN: That's an important point, and it also goes to the problems they're having in other areas of the state where they did have -- they allotted a lot of leases, and very few of them are being utilized. And so then the board of trustees looks at that, well, why are you Page 121 March 9 & 1 O, 2004 doing that again there, you know, you're just going to run into the same problem. So the direction from the Division of' Aquaculture is try to limit it to this core group, and later, if' we're successful, then we can expand. CHAIRMAN FIALA: Commissioner Coletta? COMMISSIONER COLETTA: Yes. I might add, alternative one, the one we're looking for, that's the one that's 20 or less. But if we could direct the chair to write a letter to -- back to Charles Bronson and Mark Berrigan expressing our recommendations and also including what I have a letter from Mr. Finn on, the recommendations that he made, but to word it in such a way that it doesn't sound that it's a directive from us, you know, using such language as if possible, it would be preferred. That's what I would recommend. Because if we box ourselves in a comer where all of a sudden someone sitting in an office, some bureaucrat takes a look at it and says, hey, Collier County's demanding, and then, send it back to them and tell them we can't do this for some reason. But if we word it in such a way that's a little bit open-ended with suggestions in it, I think it might be more receptive. But I'll take your directive on that, Captain Finn. DR. FINN: They -- one, he always likes to know that the board is still backing this project, which is great. That's part of the -- with the letter, and then also these requests. It's always a request, not a demand. COMMISSIONER COLETTA: That's exactly right. But that would be my suggestion. DR. FINN: The things they want to see, and that will help us along the process. CHAIRMAN FIALA: Okay. COMMISSIONER COYLE: COMMISSIONER HALAS: So do we have five nods? Yep. Yes. Page 122 March 9 & 1 O, 2004 CHAIRMAN FIALA: Very good. We have five nods for number one. DR. FINN: Thanks, number one. CHAIRMAN FIALA: Thank you. draft a letter for us? MR. MUDD: (Nods head.) CHAIRMAN FIALA: Thank you very much. Thanks, Matt. DR. FINN: Thank you. And then Mr. Mudd, you'll Item # 1 OB THREE-YEAR COLLECTIVE BARGAINING AGREEMENT WITH THE INTERNATIONAL ASSOCIATION OF FIREFIGHTERS I.OCAIJ 1826- APPROVED WITH CHANGES MR. MUDD: Commissioner, that brings us to 10(B), and that's to approve a three-year collective bargaining agreement with the International Association of Firefighters Local 1826, Emergency Medical Services Union. Mr. John Dunnuck, the Public Services administrator, will present. MR. DUNNUCK: Good afternoon, Commissioners. For the record, John Dunnuck, Public Services administrator. We set out with a goal through this contract negotiation beginning last June to realign the EMS union with other county practices, and I believe the package we're bringing before you today does that. It calls for the same cost of living increase, it calls for the same type of merit package, and in years two and three, the language states that they will get exactly what county employees get from our standpoint. Page 123 March 9 & 10, 2004 In addition to it, one of our other goals was to improve communication through the -- through the contract. And one of the ways we're tackling that situation, due to all the issues we've had in the past, is to create a labor relations committee that will sit down with both the union and the management side and discuss issues that are pertinent to the EMS department. This is a very positive step in the right direction. From a logistical standpoint, the retro pay doesn't go all the way back to October 1 st, similar to other county employees. It begins on January 1st, and I -- I think it's -- it's a very fair contract and it's consistent with the county's goals. If you have any questions, I'd be happy to answer them. COMMISSIONER COYLE: Motion to approve. COMMISSIONER HALAS: Second. COMMISSIONER HENNING: Second. CHAIRMAN FIALA: Okay. I have a motion -- MR. PETTIT: Before you -- excuse me. I just wanted to make sure you didn't vote so quickly. Go ahead. CHAIRMAN FIALA: Go ahead. MR. PETTIT: I have a couple recommended changes in the language for the agreement which I discussed this morning with the district vice-president of the union, and she was happy with them. I just wanted to get those on the record before you finally vote. CHAIRMAN FIALA: Okay. MR. PETTIT: Want me to go ahead? CHAIRMAN FIALA: Yes. Why don't you go ahead. Do we have any speakers also? MS. FILSON: No, ma'am. CHAIRMAN FIALA: Okay. MR. PETTIT: Mike Pettit, chief assistant county attorney. At page 31 of the agreement, section 11.2(A)(1)(B), we will Page 124 March 9 & 10, 2004 change the agreement and break that section into two sentences. The wording will remain the same. It's just kind of nonsensical now because there's some commas there and no connectors. At section 13.3(B)(3), page 39, I want to add the phrase, subject to the FMLA, comma, before the remainder of that paragraph, which is the Family Medical Leave Act. That's a reference that I think we need there. And finally, in article 17, page 57, on military leave, in the first sentence, under 17.1, third line, we will add after the word, by applicable, state or federal statute, and after section 17.2, final sentence, we will add this final sentence to say, this section is intended to be consistent with the applicable state and federal law. Those are the only changes. And as I said, I discussed these this morning with Mr. Page, Mr. Dunnuck, and also the union representative, and there appears to be no problem with any of that. COMMISSIONER HENNING: It's just scrivener errors basically. COMMISSIONER COYLE: Okay. Are you finished? All right. Oh, the chair is back. CHAIRMAN FIALA: Sorry about that. I have a runny nose. COMMISSIONER COYLE: We have a motion on the floor. CHAIRMAN FIALA: We have a motion on the floor by Commissioner Coyle to approve with the -- with the amendments. COMMISSIONER COYLE: With the amendments as stated by Attorney Pettit. CHAIRMAN FIALA: Okay. Halas. COMMISSIONER HALAS: CHAIRMAN FIALA: (No response.) CHAIRMAN FIALA: And a second by Commissioner Right. And do we have any further discussion? All those in favor, say aye. Page 125 March 9 & 1 O, 2004 COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: (No response.) CHAIRMAN FIALA: Thank you. MR. DUNNUCK: Thank you. Opposed, like sign. And that's a 5-0. MR. MUDD: Commissioner, that brings us to item-- excuse me. That brings us to public comments on general topics. Item #1 OD WORK ORDER PBS-02-35 FOR REPAIRS TO COCOHATCHEE RIVER PARK SOUTH DOCKS - AWARDED TO PROFESSIONAL BUILDING SYSTEMS, INC. IN THE AMOUNT OF ~66,264 CHAIRMAN FIALA: Isn't it 10(D)? MR. DUNNUCK: There's two items. CHAIRMAN FIALA: Are we on 10(D)? COMMISSIONER HENNING: This one's about Cocohatchee. CHAIRMAN FIALA: Oh, okay. COMMISSIONER HENNING: Motion to approve. COMMISSIONER COYLE: Second. CHAIRMAN FIALA: Let's see. 10(D) is -- oh, yeah. MR. MUDD: Work order PBS-0235 in the amount of $66,264 to the Professional Building Systems, Inc., for the repair of the Cocohatchee River Park south docks, contract number 023349. Page 126 March 9 & 1 O, 2004 Mr. John Dunnuck will present. MR. DUNNUCK: Good afternoon, Commissioners. For the record, John Dunnuck, Public Services administrator. We had currently had a project budgeted to do some minor repairs to the park up at Cocohatchee Park. When we took a look at some of the pilings and the dock work up there, we noticed that there was a little bit more significant damage. We went back and we had the opportunity through a work order process to accelerate and actually get the contractor out there sooner rather than later. That's why we walked this item on the agenda so we can have the contractor out there on the 15th. This will help us with our relationship with the lessee out there presently from the standpoint of, we have an obligation to make sure those docks are up and running per our lease agreement up there, and so we wanted to do that sooner rather than later, therefore, we're recommending this project move forward through this work order. CHAIRMAN FIALA: Okay. COMMISSIONER HALAS: Somebody made a motion already, didn't they? COMMISSIONER COYLE: Yes. We have a motion on the floor to approve. CHAIRMAN FIALA: You are the motion? COMMISSIONER COYLE: COMMISSIONER HALAS: COMMISSIONER COYLE: COMMISSIONER HALAS: No, Commissioner Henning -- And I'll second it then. And I seconded. Oh, okay. CHAIRMAN FIALA: Oh, okay. I'm sorry. We have a motion from Commissioner Henning to approve as -- as recommended by staff. COMMISSIONER COYLE: Staff. CHAIRMAN FIALA: And a second by Commissioner Coyle. Page 127 March 9 & 10, 2004 COMMISSIONER COYLE: CHAIRMAN FIALA: (No response.) CHAIRMAN FIALA: Coyle. Okay. Any discussion? All those in favor, say aye. COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: (No response.) CHAIRMAN FIALA: And opposed, like sign. And that give us a 5-0. MR. DUNNUCK: Thank you. CHAIRMAN FIALA: Then we move on to- Item # 10E WORK ORDER UNDER CONTRACT 01-3271, FIXED TERM PROFESSIONAL ENGINEERING SERVICES FOR COASTAL ZONE MANAGEMENT PROJECTS WITH COASTAL PLANNING AND ENGINEERING FOR A PUBLIC INFORMATION PROGRAM, PHASE 2, FOR THE COUNTY/CITY OF NAPLES MAJOR BEACH RENOURISHMENT, IN AN AMOUNT NOT TO EXCEED $477870 MR. MUDD: Next item is 10(E), which used to be 16(C)7. This was pulled from the consent agenda by Commissioner Henning, and it's to approve a work order under contract 01-3271, fixed term professional engineering services for the coastal zone management projects with Coastal Planning and Engineering for a public information meeting (sic), phase 2, for the county/City of Naples Page 128 March 9 & 1 O, 2004 major beach renourishment, Project 90527, in an amount not to exceed $47,870. And again, Commissioner Henning pulled this off the consent agenda. And Mr. Ron Hovell will present or ask any questions -- or answer any questions. MR. HOVELL: For the record, my name is Ron Hovell, special projects manager for the public utilities engineering department. The public information program phase 2 for the county and City of Naples beach renourishment project. The overall project is to renourish Vanderbilt, Park Shore, Naples beaches. And as you may recall, we're expanding the scope to provide a better project life for the future. The work is planned to start in November of 2004. As you'll recall, we've now submitted a permit application. And one of the major hurdles to get our permit application complete is easements from the beachfront property owners. And this public information program is in support of both the permitting and easement efforts. Kind of an eye chart here, but the project location, just going back again to Vanderbilt, Park Shore and main Naples beaches, and the sand sources, both near shore one, about five miles offshore, and the off-- and the way offshore one, about 33 miles offshore. That's just a quick, you know, overall project view. The overall project cost, this phase 2 of public information program is proposed to be a time and materials work order not to exceed $47,870. But the overall construction cost estimate is $13.7 million for putting the sand on the beach, with another $750,000 in engineering services for environmental and construction monitoring, post construction surveys, and reports. The construction funding is to be addressed later this week at the Page 129 March 9 & 10, 2004 March 11 th Coastal Advisory Committee meeting, the March 22nd Tourist Development Council, and then should come to you on April 13th for final approval. Phase 1 of the public information program was approved back in the October, November time frame for about $8,500, and the idea was to develop a program as well as a website design, and that's all ready to go. We're ready to mm on the switch assuming phase 2 gets approved. Phase 2 covers up to 10 updates of that website between now and when construction actually starts, because our vision is once construction starts, then we'll bring the construction contractor into the process of providing better public information of exactly where they are on the beach and whatnot; to help with up to seven public meetings, including Board of County Commissioner Meetings, if required, and to do some media coordination for up to 10 press releases. This is a high-visibility project with some historical issues from the '95, '96 time frame. Trying not to use that word that we used to use a lot. And the idea is that we want to leverage our in-house resources with out-sourced services for these peak requirements to handle the public relations aspect -- or public information aspect of the project. We're not typically staffed for this type of work in-house. And also the consultant and sub-consultant have specific expertise in dealing with these coastal issues. This work order has gone through the Coastal Advisory Committee and the Tourist Development Council, and Mr. Roellig, the acting chair of the Coastal Advisory Committee is here. So both the Coastal Advisory Committee, the Tourist Development Council, and staff recommend to approve this work order for phase 2 with coastal planning and engineering not to exceed the $47,870. MR. ROLIG: Thank you. I'm David Rolig. I am acting chair of Page 130 March 9 & 1 O, 2004 the Coastal Advisory Committee. My actual title is vice-chair. I just want to give you a little bit of the history. You know, I've been here for many years. And prior to the initial nourishment, the beaches were very narrow. A lot of folks have come into the county in the last five, 10 years, aren't aware of what it was like in the past, what we have planned for the future, and how we're going to avoid the problems we've had with the last renourishment. We feel this is a very important part of this project that will come to this county about once every 10 years, and I strongly recommend that we -- what will happen with this -- this is -- the firm that will be handling this is based in Southwest Florida. They have extensive experience in coastal information meetings and projects. They are the -- they handle work for the Florida Shore and Beach Association, so they're very well experienced in this type of endeavor. And I would hope that we would be able to proceed as soon as possible on this -- with this work order. If there's any questions I can answer, I'd be glad to try. CHAIRMAN FIALA: Any questions? (No response.) CHAIRMAN FIALA: Okay. MR. ROLIG: Thank you. CHAIRMAN FIALA: Comments? COMMISSIONER HENNING: I would like to know, as far as the permit, what is required under this work order. MR. DeLONY: Okay. COMMISSIONER HENNING: Under the -- per this work order, what is required from the -- for the permit? MR. DeLONY: Specific -- for the record, Jim DeLony, public utilities administrator. I always get frustrated when I don't do that quickly. Page 131 March 9 & 1 O, 2004 The permit for the beach renourishment project, what FDEP is requiring us to do; is that your question -- COMMISSIONER HENNING: Yes. MR. DeLONY: -- Commissioner? COMMISSIONER HENNING: With this work order on public information. MR. DeLONY: Okay, okay. Do we have a specific permit, that I'm aw -- there is not a specific permit requirement associated with the delivery of public information one on one, but you and I both know, in vetting it through the public process, associated with the permit, we want to make sure that accurate picture's out there about what we're doing. This is one means we will use to do that. So, to say there's a nexus directly, no, but you and I both know that the public are going to demand and want to be informed up to and including the construction activities associated with this project, and this is part of that process in my view. COMMISSIONER HENNING: The -- in my understanding, that almost $9,000 was to create a website. And I thought that was going to take care of the whole thing. And it seems like we can inform the public, the ones that are being affected, through other sources, maybe City of Naples utility billing or Collier County utility billing. You send out notices that way. It just seems like, you know, we talk about shortage of beach renourishment funding, and then we turn around and use funds for creating websites and so on and so forth. And I'm not trying to negate the need for public information. It just seems like we can accomplish both for a lot less. MR. DeLONY: Well -- and we're always going to look for those economies, sir. And I think the board's been right -- hard with us ensuring we are doing that. Public utilities, for example, derives its funding from user fees Page 132 March 9 & 1 O, 2004 and impact fees. User fees -- impact fees associated with delivering public utilities. Ad valorem taxes have another category of a funding source for the kinds of things that the other house in the county does. This project, fully funded by TDC funds, it appears to me that there ought to be some crossover in terms of TDC funds to do some of those outreach activities. You're right. We'll -- we're going to take advantage of all the means available within the county manager's agency to assimilate information only about this project or anything else that the public demands that we have information to them on a needed basis. But I think that this provides, as Ron outlined in his presentation, a good leverage of those resources and some expert out-house resources that we can bring to bear to even prepare the public and inform the public for this high-visibility, high-impacted project. COMMISSIONER HENNING: Mr. DeLony, I don't want you to misunderstand my comments. I wasn't asking to use utility funds to inform the public about beach renourishment. I'm just saying, there's a vehicle. Why can't we use it? That's all. MR. DeLONY: Yes, sir. And I -- and where it's appropriate we will, I can assure you of that. The public information function within the county is, quite -- I think I'd be quite enabled with these funds and with other funds that you provide us in assets to get the information to the public, and that's our recommendation. But I understand your guidance as well, sir. CHAIRMAN FIALA: Commissioner Coyle? COMMISSIONER COYLE: I just want to clarify a couple of things. The -- some of the tasks in here are, develop content for commissioner briefings, editorial board meeting preparation, and CAC/TDC county commission meeting attendance. Is this an attempt to make sure that the staff time, or somebody's Page 133 March 9 & 1 O, 2004 time, that goes into doing this is charged to the appropriate fund, or is this something that the staff could do itself?. Because after all, you prepare for Collier County Commission meetings now and you prepare for CAC meetings now. My question is, why couldn't the staff do this? And if your answer is, the staff has to have some source of funding to do it, then I understand it. But if I'm -- if you're saying, we're just going to hire somebody to do it rather than staff doing it, I'm not sure I understand it. MR. DeLONY: Yes, sir. And let me make sure you're clear. We wrote a scope of work for these folks anticipating the wide variety of things we might ask them to do to assist us to do all the things that you outlined. Our first default function is, use existing staff. When that existing staff is either overwhelmed or under -- or not available or we just can't get to it to the level of detail of level of sufficiency we feel to put it before you and the public, then we're going to go to this consulting agency as help as we need it on an as-needed basis. This has nothing to do with funding staff support of this or any other project. This is -- essentially allows us to set up a work order process with this firm to provide deliverables to us as we -- on an as-needed basis and paid for on a time and material basis. COMMISSIONER COYLE: Okay. Let's presume you didn't have access to an out-house source. MR. DeLONY: Okay. COMMISSIONER COYLE: I usually use that term only when we're hiring attorneys from other agencies. But if you didn't have an out-house source, how would you do this? MR. DeLONY: Tough, I'll be frank with you. I mean, the assets that we have available and the assets that Jack has available, Jack Page 134 March 9 & 1 O, 2004 Wert, TDC chairman has -- I mean, TDC coordinator, has for him are pretty limited in our ability to doing them on a day-to-day basis. And that's the reason we wanted these services available for this activity -- this peak activity period. COMMISSIONER COYLE: If you did it, though -- I mean, if you had to do it, how would you charge out the staff time and expenses for doing that? MR. DeLONY: What we've done up to now in terms of TDC support in the public utilities division is I've been funded certain full-time equivalent positions within the firm for folks to work on TDC work, and we've worked off of those -- those allocations of effort and time and money to fund the kinds of things we're doing for the TDC projects. COMMISSIONER COYLE: And do you get TDC funds -- MR. DeLONY: Yes, sir, I do. COMMISSIONER COYLE: -- to reimburse you? MR. DeLONY: Yes, sir, I do. COMMISSIONER COYLE: Okay. So what I see here, I think, is that you're going to spend these funds one way or the other. If you're made to do it yourself, you're going to have to charge TDC funds for the staff time; is that -- is that a correct statement? MR. DeLONY: It's appropriate to fund those TDC expenses against the TDC. COMMISSIONER COYLE: Okay. So if you were forced to do all these things yourself with existing staff, you would still have to charge this money to TDC, charge that time and expense to TDC funds? MR. DeLONY: Yes, sir, I believe that's true. We would -- we would look to try to make it a cash and carry basis for the TDC. COMMISSIONER COYLE: Okay. So that's the point I'm trying to get at, is that I believe -- and please correct me if I'm wrong -- I Page 135 March 9 & 10, 2004 believe this is a funding mechanism more than anything else. Not all of this money would be saved if we were to disapprove this particular project. You would still have to prepare for BCC meetings and you'd still have to prepare for CAC meetings and get the briefing material together, and that's time and that's money, and you would charge that to TDC funds? MR. DeLONY: To the extent that we had staff available to do it, yes, sir. COMMISSIONER COYLE: That's right. Okay. MR. DeLONY: If I could, Mr. Coyle, you know, this would give us a level of service much high than that. COMMISSIONER COYLE: I understand, I understand. But I'm just trying to make sure that I understand what you're -- what you're doing, because a disapproval of this project would not save these funds, because many of the funds -- I mean, many of the things have to be done anyway. You would have to do them some way and you would have to charge TDC for that -- that work. MR. DeLONY: That would be a -- we would either not do them as well, or to some degree, would have to do them to a much lower standard than what the market would demand in terms of service to the customer, in my view. COMMISSIONER COYLE: Now, how about the business of hosting the services and links from the county public page? Why do we need to pay a consultant to do that? MR. DeLONY: Not necessarily. When you set up these scopes of work, you try to imagine as best you can what level of service you'll need from this consultant and you'll pick those tasks off and you will pay them accordingly. To the extent that we need that, we'll pay for it. Extent, we won't (sic). The key is -- and this is where I need to make sure I'm clear. This is a time and materials arrangements if we don't need them to do Page 136 March 9 & 10, 2004 it, they don't get the money. But if they need to do it, they'll get paid according to the schedule that's outlined within the submittal package that you have. COMMISSIONER COYLE: Okay. Thank you. CHAIRMAN FIALA: Commissioner Halas? COMMISSIONER HALAS: So basically all -- these funds were basically allocated before. All we want to do now is just approve it; is that correct? MR. DeLONY: The earlier phase was. At this stage of the game now, we're waiting for your approval now so we can proceed with the outreach effort as outlined in your packet, sir. COMMISSIONER HALAS: Okay. I make a motion that we approve this agenda item. CHAIRMAN FIALA: I second it. Any further discussion? (No response.) CHAIRMAN FIALA: All those in favor, say aye. COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. CHAIRMAN FIALA: Opposed, like sign. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: Okay. We have four in favor with one, Commissioner Henning, opposed. Thank you. Now go to 12(A)? Item #1 lA KEITH REED AND DONOHUE SILVIS REGARDING THE SANTA BARBARA ROAD PROJECT Page 137 March 9 & 1 O, 2004 MR. MUDD: No, public comments on general topics, ma'am. Number 11. CHAIRMAN FIALA: Oh, I'm sorry. MR. MUDD: Ms. Filson? MS. FILSON: Yes, ma'am. We have two speakers. Bella Patel. MR. REED: I don't believe she's here. MS. FILSON: Keith Reed. MR. REED: Yes, ma'am. Good afternoon, distinguished Commissioners. I appreciate the time and opportunity. What I'd like to -- CHAIRMAN FIALA: Your name for the record, sir? MR. REED: Keith Reed. I'm a property owner along Santa Barbara Boulevard. I'd like to -- the issue I want to speak on is the Santa Barbara project, which has been an ongoing diamond in the rough with this dis -- public discussion and everything. I own a parcel of property along Santa Barbara that I received a letter from the county over a year ago of their intent to purchase it for part of the improvements along Santa Barbara. So at that time, we chose -- we decided not to develop it like our original intent was and sell it. Our intent was to wait and go -- you know, deal with the county accordingly and be fair about it and appropriate. It's been over 15 months from the initial contact. I had a meeting yesterday, a settlement towards the property, and -- excuse me -- the results were very discouraging instead of encouraging from my perspective as a property owner. And I know Commissioner Henning is in -- lives in that area. So as we all are in Collier County, we're aware of the property values and how they escalate yearly. I just don't think that -- I just want you guys aware, I guess, of the length of time involved already Page 13 8 March 9 & 10, 2004 on just my individual parcel of property that I've dealt with the county in good faith on up till now, and the fact that the longer the process draws out, the more expensive it becomes for the county to do the escalation of the property values. I'm not wanting an arm and a leg. I just want to be fair to both sides. And as I said earlier, I've already held up on plans for that piece of-- parcel of property for over a year expecting to reconcile this with the county to everybody's amicable agreement. After yesterday's meeting, as I said, I'm very discouraged with the approach the county has taken on the property. And by prolonging the agree -- settlements on any parcel of property, as you all are aware, it just becomes more costly to the county. When there -- the difference in money is not -- it's less than 10 percent, I would think that you would be more than willing to reconcile it with the individual in good faith. That's all I have to say. Thank you. COMMISSIONER HENNING: Mr. Reed, did you get an estimate? Did you get an appraisal? MR. REED: Yes. From day one when I received the county's letter, they required me to go out and get an appraisal that -- they wouldn't accept anything over the phone or any -- they required me to get an appraisal, as well as they did an appraisal. COMMISSIONER HENNING: So what you're saying is your appraisal and the county's appraisal is different? MR. REED: Greatly so. I mean, after five hours yesterday, we do come much closer. And like I said, it's a matter of less than 10 percent basically between the two sides. And when you figure up, if this drags on another year at the county's own appraisal's -- appraiser's numbers, property values are going up 20 to 24 percent on other properties that they have settled on in the last year, that the county has purchased, such as Tree Source, Page 139 March 9 & 1 O, 2004 and there's three or four other pieces of property that the county appraisers themselves offered-- recognized the 20 percent increase in property value. So like I said, it -- for the amount of money that's involved not only with my parcel, but just for everyone, I would think that it would behoove the county to become more cooperative, if you will. Thank you. CHAIRMAN FIALA: Have you talked with Norm Feder back there about it? MR. REED: No. Yesterday Kevin Hendricks was at the meeting. And I apologize, I know Ellen -- and I apologize, Ellen, I don't know your last name. MR. MUDD: Chadwell. MS. CHADWELL: Chadwell. MR. REED: And Gregg-- CHAIRMAN FIALA: Strakaluse. MR. REED: Yes -- were the three involved from the county. CHAIRMAN FIALA: Well, maybe -- maybe you could meet with them outside here and just discuss it. COMMISSIONER HALAS: We've got -- CHAIRMAN FIALA: Oh, okay. COMMISSIONER HALAS: -- Norm Feder coming up. MR. FEDER: Madam Chairman, Norman Feder, transportation administrator. I can tell you the staff has met with the gentleman. We have made a good faith offer, a very good offer. He obviously has a better feel for what he wants for the property than necessarily the appraisal level. And his presentation to you is his concern that we're not offering even more. But, again, we'll continue to try and negotiate the property purchase. We have two other parcels we have already purchased in the area. We're being very, very consistent with those that have Page 140 March 9 & 1 O, 2004 already been fully negotiated. CHAIRMAN FIALA: Thank you. Thank you. MR. REED: Thank you. CHAIRMAN FIALA: Do we have any other speakers? MS. FILSON: No, ma'am. CHAIRMAN FIALA: Okay. MR. MUDD: Commissioners, some background with Norman's issue and with Mr. Reed-- and we'll continue, as Norman said, to work the process. But let me try to get it so that you do know. Mr. Reed's property is a little less than four acres. Our appraisal came in at around 80K per acre, and our price was $236. Mr. Reed had an appraisal, and his appraisal came in at 105 an acres, $105,000 an acre, okay? So they're trying to work in the difference. And Mr. Reed's final was -- at the table yesterday, was 315, and then added attorney's fees, expert witnesses' fees, our offer on the table was 290 inclusive of attorney's and-- fees. So we're in the ballpark. I think -- I think both sides will go back out there and work through that process a little bit more. We got a lot closer. But again, we're working off two appraised values, and there's -- there's some significant issues between the appraised values of both, and we'll work through that process to -- for both parties, the taxpayers of Collier County and for Mr. Reed. CHAIRMAN FIALA: Thank you. MS. FILSON: And Madam Chairman, I just had one additional speaker. CHAIRMAN FIALA: Okay. MS. FILSON: Donahue Silvis. MR. SILVIS: Yes, I'm Donahue Silvis. I reside at 3770 25th Avenue Southwest in Golden Gate. And on the same subject, I own the property at 1600 Santa Barbara. Page 141 March 9 & 1 O, 2004 I was approached by -- some time ago about selling my property. I have seven acres. Three two-and-a-quarter-acre-plus lots. I've gone to the meetings. In fact, I agreed way back almost two years ago to -- in the widening. I wasn't against it. I said I'm fine with it. I went to the meetings. In fact, I walked out of one meeting that Tom Henning was there, and the people were quite rude to him, and I thought that was out of line, so I left and I contacted the county, sent a letter to Mr. Coletta and Mr. Henning that I was willing to negotiate -- that was a year and a half ago -- and they told me I would be number one on the list. I've been waiting all this time. They keep putting me off. Not only am I going to -- do they want my back two-and-a-half-acre property for water retention ponds, but at the time I went deep in debt building a modular home on one of the front lots, opened a business and was going to develop the back two lots with modular homes, of which I was stopped from doing. At the present time I'm out of business because even though I have over $600,000 tied up in the property, I can't sell the property. I can't build on it. I can't sell modular homes to the people because I don't have the finances to do it, and banks won't finance 100 percent of modular homes in this area. So I'm having my meeting tomorrow morning. I just wanted you-all to be aware that this has been a hardship on me. I'm making large bank payments, and I'm out of business, and I want -- I want -- what I've heard about Keith Reed, that he didn't get a fair shake, I have been very cooperative. I just want to be treated fairly. CHAIRMAN FIALA: And we want you to be treated fairly, too. MR. SILVIS: Thank you very much. CHAIRMAN FIALA: Thank you, sir. That's it for public speakers? MS. FILSON: Yes, ma'am. Page 142 March 9 & 10, 2004 CHAIRMAN FIALA: Okay, fine. Item # 12A REQUEST FOR AUTHORIZATION FOR THE COUNTY ATTORNEY TO SELECT AN RETAIN OUTSIDE COUNSEL TO REPRESENT TWO INDIVIDUAL COUNTY EMPLOYEES SUED IN DWIGHT E. BROCK VV. BCC, LINDA T. SWISHER AND PAUL W. WILSON AND WAIVE THE PURCHASING POLICY TO THE EXTENT IT APPLIES TO THE SELECTION OF OUTSIDE COUNSEL- COUNTY ATTORNEY TO PROVIDE LEGAL REPRESENTATION SUBJECT TO CONDUCT OF IMMEDIATE AUDIT BY COUNTY STAFF OR PREFERABLY Ol ~TSIDE ACCOI INTING FIRM - APPROVED 12(A), county attorney's report. MR. WEIGEL: Thank you, Madam Chairman. 12(A) brings back to consideration from the board the fact that the Board of County Commissioners, sitting as ex officio, the governing body of the Ochopee Fire and Rescue District, and two employees of the Ochopee Fire District, Paul Wilson, Fire Chief, and Linda Swisher, employee, were also included in a lawsuit filed by the clerk in court just two weeks ago. And as I indicated to you when I informed you last board meeting, by virtue of the fact that Board of County Commissioners is a party defendant and, therefore, a response and defense will be tendered by the county attorney on behalf of the board, there will be a need for the individual employee defendants to retain counsel, at least have the ability to retain counsel, in their defense and response to the -- to the complaint. It is inappropriate for the Board of County Commissioners -- I Page 143 March 9 & 1 O, 2004 should say for the County Attorney Office to represent both the Board of County Commissioners and the employees. And so included in your agenda packet on this item is a copy of the policy resolution of the Board of County Commissioners which addresses those times and instances where an employee or a board member or an advisory committee member, to name a few, may find themselves on the tail end of a lawsuit. And I would -- the recommendation before you today is to consider, but thereupon to apply the policy relating to the potential of either board authorization for the county attorney to retain counsel for each of these two defendants, and/or you have other parameters available, 'such as for these individuals to retain counsel and seek payment, reasonable payment, of their fees and costs in the response to the lawsuit by the Board of County Commissioners. I have spoken with -- and been informed that both of the individual employees that are sued have not retained counsel at present time, and it appears that they would appreciate or consider certainly the assistance of the county attorney at the direction of the board in the hiring and retention of counsel at a rate not to exceed what the board would approve. I would ask you, if you'd like, to turn in your agenda to the policy resolution, but you don't have to because I'm going to refer to it directly itself. But most importantly in the resolution relating to lawsuits where county employees, board members, or advisory committee members may be involved, is that this policy the board adopted in 1995 is broken out into two major parts, and one is civil prosecutions, civil litigation, and then criminal prosecutions or litigation. In the present case, this is a civil case, not a criminal case, and it takes us then, looking at, if you wish, on page five of the executive summary and page seven thereafter, it specifically indicates what the Page 144 March 9 & 1 O, 2004 policy is. And it indicates that the board hereby resolves to provide legal representation to county persons in civil actions and in civil rights actions subject to the limitations set forth herein. The reason I'm reading this is not so much for you who are probably familiar with the agenda item in preparation for today, but for the public as well. It then provides the parameter with limitations. The first one involves legal representation which is what I'm talking with you about today. And it says, legal representation shall be provided in civil actions and in civil rights lawsuits only if the litigation involving of the county person to be represented arises out of or in connection with the performance of official duties and while said county person was serving a valid public purpose, so there are some parameters there. There are also some limitations that follow thereafter that talk about, no representation should be provided by the county if the person was acting with malice and bad faith or intent to harm, things of that nature. Now, it would appear from the knowledge that we have, which is small in this regard, that it would be, I would suggest, difficult for the board to make the adverse determinations that are limitations here, but we do know that the lawsuit purports to involve these persons as individuals but also related to their employment with the fire district. After all the fire district itself is sued by you being sued directly as the governing body. The -- on page seven thereafter is the second part of the equation, which isn't before you today, and that is, it relates to the board responsibility in regard to final judgments, settlements, and/or costs. Well, this case has just started, so there are no final judgments, settlements, or costs that have been assessed by the court. No matter what you do at this point in time, that would be a subject for another day. Page 145 March 9 & 1 O, 2004 So before you today -- and I look forward to any questions you may have -- would be the issue of, will the Board of County Commissioners, pursuant to the policy, make a finding that it is appropriate at this time to either authorize the defendants/employees to seek counsel and be subject to reasonable reimbursement or to direct the county attorney to assist and retain counsel for each of these two individuals. And I'm ready for any questions. CHAIRMAN FIALA: Commissioner Coyle? COMMISSIONER COYLE: Yeah. I would like to emphasize that the policy calls for us to provide such representation absent any evidence of willful or wanton behavior or criminal activity. But we -- we have an obligation to make sure that there is no such bad activity or behavior associated with this particular case. So I would suggest that we -- that we provide the legal representation in accordance with our policy. But as a condition of that, also immediately, conduct an audit of that particular account, account in question, with the purpose of determining whether or not there has been any bad faith, malicious conduct, or criminal intent. I think-- my overall impression of this whole thing is it is absolutely ridiculous to try to solve this through a civil suit. We should conduct an audit immediately. Taking the time and the expense to go through a civil suit to determine if this is an improper account and if it was handled improperly is, in my estimation, a blatant waste of taxpayer funds. So I would hope that either we would conduct an immediate audit, or if necessary, to assure that there is no conflict of interest, hire an auditing firm to go in and audit this account immediately, and that way it gives us an opportunity to determine if there was any unlawful behavior or bad faith or malice associated with this, and if so, we then can terminate the legal representation. Page 146 March 9 & 1 O, 2004 So on the one hand, we are permitted to -- to apply the legal representation as permitted under our statutes, and on the other hand, by conducting the audit, we are limiting our exposure in the event something really is wrong here. So I would like to proceed on that basis. CHAIRMAN FIALA: Would you like to make a motion to that effect? COMMISSIONER COYLE: Yes. I'll make a motion that we provide legal representation subject to the conduct of an immediate audit by county staff or some outside accounting firm that we would hire to do this. And I guess I would prefer an outside accounting firm to assure there's no -- no possibility of a conflict of interest here. CHAIRMAN FIALA: Okay. I have a motion on the floor. MR. WEIGEL: Could I respond for clarification? CHAIRMAN FIALA: Certainly. MR. WEIGEL: Thank you. In essence, reading back the motion, the motion then would include the county attorney making appropriate efforts to retain counsel for each of the two defendants, Linda Swisher and Paul Wilson, and -- at a cost not-to-exceed figure of $200 an hour, which we believe is reasonable in the marketplace in the type of matter that is in the court here, and additionally, that the board is authorizing, pursuant to its powers and duties, authorizing the utilization or employment, the implementation of an audit, which may be done either in-house, or if appropriate to -- and preferably by outside independent auditor, and to the extent appropriate, pursuant to the -- that the purchasing policy be waived to the extent necessary so that any retention may be -- may be accomplished of the outside auditor. I don't know how to give you a cost not to exceed figure on that, but it would seem to me that if need be, I can come back at the next board meeting with something in that regard. Page 147 March 9 & 1 O, 2004 COMMISSIONER COYLE: You said it so much better than I. MR. WEIGEL: Well, I'm sorry. I was a little -- little wordy there, but I appreciate that. CHAIRMAN FIALA: Okay. So we have a motion on the floor by Commissioner Coyle. It has been repeated by our county attorney, David Weigel. Do I have a second? COMMISSIONER HENNING: Second. CHAIRMAN FIALA: Second by Commissioner Henning. Any discussion on the motion? Yes, Commissioner Coletta. COMMISSIONER COLETTA: Yes. I'd like to hear from staff to find out if we have already done something as far as an audit goes. I want to know what we're spending this money on and why and if it's justified. MR. SUMMERS: I'm close. It's Dan Summers, emergency management. I will tell you that we have done a -- not done a formal audit, but I have looked personally at the check register for the activities that were in there, and those activities were well within concert of a volunteer fund. Those type of funds for community outreach, fire safety and Halloween parties, those types of things that were done as a community activity, well within the scope of public outreach, as well as some of the equipment that was purchased in there. I have not done a line-by-line, dollar-for-dollar compilation or accounting of that, but what I have seen recorded in the register is well within the scope of those activities. COMMISSIONER COLETTA: So what we're trying to prove by doing the audit is to have an outside firm verify what you just said, I would take it? MR. SUMMERS: I think what it would do, would make sure -- Page 148 March 9 & 1 O, 2004 would look very closely at the balance. There is a -- an accounting system that is used, a software system that Linda Swisher does use to enter every account -- or I'm sorry -- to enter every transaction and make additional records as well as -- all those additional records are, in fact, done with her Quicken software. The issue here is how far back, and I think this account has been around -- Chief Wilson will have to help me with that timeline of this account -- before they became a dependent district. So how far back we go -- which I think the clerk has only asked that we go back two years, if I'm not mistaken. So, again, it -- part of that discussion would have to be how far back, and even the fact that county staff inherited these records and took positions down there within Collier County when this process and this account was already in existence. COMMISSIONER COLETTA: My other question-- and this will be my last one -- are these -- these records are considered public records where anyone that would like to see a copy of them could? MR. SUMMERS: I don't know how that -- I assume it would be just because of the nature of the fire department business. COMMISSIONER COLETTA: Well, the fact that it came before the commission and is part of our determination that we're going to be doing in the future. MR. SUMMERS: Oh, absolutely. COMMISSIONER COLETTA: I assume it's public record. MR. WEIGEL: Well-- COMMISSIONER COLETTA: There's nothing there that we're holding back on. Anyone that wants it can have a copy of it? MR. SUMMERS: No, sir, no, sir. We took several large boxes immediately to the clerk. They made copies. Those boxes of records are now, I believe, in the county attorney's possession. And some bank statements came in today from fax. So we have very promptly Page 149 March 9 & 1 O, 2004 provided the materials requested. COMMISSIONER COLETTA: Thank you, Mr. Summers. MR. WEIGEL: And if I can add to that, in regard to public records, we are talking about an account that is not a Collier County Government account. But to the extent that records have been provided, received by the clerk, received by the county, whether it's emergency operations or now in the custody of the county attorney, I think a good argument could be made that, yes, those certainly are public records. To the extent that, as an internal review or an external auditor's task of attempting to do a total review of records, there may be -- there may be some issues as to the public -- the publicness of the records that have not been provided at this point. As I mentioned two weeks ago, it seemed to me that much of this could be taken care of by a professional courtesy administrative request, and that's what we would be attempting to do ourselves with the assistance, potentially, of an outside auditor. And to the extent that the two individuals as defendants in this lawsuit may have some question or concern upon their advice of counsel in regard to any other records that they may have pertinent to those accounts, that's something that they'll have to, I'll say, interface with us with their counsel a little bit later on. I think it's a little broad to say that all records are necessarily public records, although there are certainly arguments that could be made toward that end. CHAIRMAN FIALA: Commissioner Halas? COMMISSIONER HALAS: I was led to believe that this was a 501C account too; is that correct? MR. WEIGEL: Do you have any independent knowledge yourself?. MR. SUMMERS: We are still researching that. We do know that Page 150 March 9 & 1 O, 2004 before the county took over the dependent fire district, that there was, in fact, an articles of incorporation for the Ochopee Fire District. COMMISSIONER HALAS: Okay. MR. SUMMERS: The bank that held those records has been through several mergers, and there has to be a hand archive of that, so we are attempting to locate the nonprofit nature of the dependent fire district, its articles of incorporation that tie to this account. COMMISSIONER HALAS: Okay. And how will this affect -- maybe the county attorney -- if we find out this is a 501C account, then how -- what kind of light does this cast on the whole scenario here? MR. WEIGEL: Well, I don't want to get too far -- COMMISSIONER HALAS: Okay. MR. WEIGEL: -- into what might be some case discussion, but, you know, the fact is, part of the audit examination would be the source of funds, the identity of funds, and how they happen to exist within the account and/or left the account at a point later on. COMMISSIONER HALAS: I've got one last question. MR. WEIGEL: Okay. COMMISSIONER HALAS: So this was taxpayers' money that was in this account, or was this money that was basically donated to the fire -- Ochopee Fire District? MR. WEIGEL: Well, I think that's -- that's what we're going to determine. There may be some questions as to the character of the money. There may be very few questions, things may be very clear that the source or origin of some of the moneys that went into the account came from what I've heard anecdotally, over a period of years, such things as Annual Ochopee Fish Fry and other events or solicitations. I do not know right now -- and again, it would be inappropriate for me to comment with any assurance -- that, in fact, there will be Page 151 March 9 & 1 O, 2004 questions raised in the case -- in the case in the court that money that was solicited, no matter how it came, was, you might say, converted or became county money by virtue of coming into the possession of the -- of the individuals and/or the account. These are some things we'll be looking at in the future. COMMISSIONER HALAS: Thank you very much. CHAIRMAN FIALA: Commissioner Coyle? COMMISSIONER COYLE: Yeah. I just wanted to address the issue of cost. Please remember that if we're going to provide legal costs for these people -- legal representation for them -- that the costs associated with the -- an audit are going to be paid one way or the other, because an attorney will have to get that information, and he's going to charge you $200 an hour. It would be better in my mind, I think, to have an auditor do it at maybe 75 or $100 an hour, because it's going to be needed by an attorney to perform an appropriate defense in the lawsuit, which I still consider to be unnecessary and irrelevant here. The important thing is the audit to find out what went into the account, why did it go into the account, what came out of the account and why, and then we'll have an answer to all those questions. And so that's the reason I've tied this motion to an audit. MR. WEIGEL: This is fine. CHAIRMAN FIALA: Okay. We have a motion on the floor by Commissioner Coyle, a second by Commissioner Halas. COMMISSIONER HALAS: By -- CHAIRMAN FIALA: Oh, by Commissioner Henning. I'm so sorry. Any further discussion? (No response.) All -- do we have any speakers? MS. FILSON: No, ma'am. Page 152 March 9 & 10, 2004 CHAIRMAN FIALA: All those in favor, say aye. COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: (No response.) CHAIRMAN FIALA: MR. WEIGEL: Opposed, like sign. It's approved, 5-0. Thank you. Item #15A COMMISSIONER FIALA RE LISTED SPECIES IN THE GLITCH CYCIJE- TO lalE PI JT ON NEXT AGENDA CHAIRMAN FIALA: Okay. Now we're on to staff and commission general communications. MR. MUDD: Commissioner, I would -- I would bring up the one item that you brought up earlier at the beginning of the agenda, and you wanted to talk about listed species and the glitch cycle. CHAIRMAN FIALA: Yes. MR. MUDD: So I think that would probably be appropriate to get after, and then we can do the general nature of this particular-- CHAIRMAN FIALA: Great. I didn't know if I had to wait my turn, so I'm glad you advised me. Thanks. All righty. MR. WEIGEL: Okay. Just a minute. Me? CHAIRMAN FIALA: Oh, do you need a break? Okay. COMMISSIONER COLETTA: Do you need a break? COMMISSIONER COYLE: I need a break. Page 153 March 9 & 1 O, 2004 CHAIRMAN FIALA: Okay. COMMISSIONER HENNING: What are we going to do here? COMMISSIONER HALAS: Let's have a break. CHAIRMAN FIALA: Oh, okay, fine. We'll break for 10 minutes. Okay. We'll be back in 10. (A brief recess was had.) CHAIRMAN FIALA: The meeting is back in order. MR. MUDD: Madam Chair, you have a hot mike. CHAIRMAN FIALA: Thank you very much. Well, I called this because I found some confusion with regard to listed species. And I had written to you, Mr. Mudd, about it, and then I'd gotten a comment back from Mr. Schmitt. But I still had some confusion on it, because as I looked back through the record, I found that Marti Chumbler had said in a couple places here -- and I have them here at my disposal in case you would like me to read them -- at the January 29th first LDC meeting, that she felt that it was really important for staff-- the initial problem that your staff is trying to tackle and trying to deal with on a daily basis is, how do we apply this comp. plan provision. We don't know what it means. And so I thought maybe we could discuss that today, because what I'd like to do is get this on to the glitch cycle rather than put it on till the end of the year. Marti Chumbler here in another spot says that she feels that this would be important to have on the glitch cycle. I'm paraphrasing for her, but I could read this. And also we had talked about it as commissioners and felt that we wanted it on the glitch cycle as well -- COMMISSIONER HALAS: Yes. CHAIRMAN FIALA: -- so that we could -- so that we could address it. We didn't feel we were ready to do it at the time, but we needed to get it on the glitch cycle, and somehow I understand it's not going to be on the glitch cycle now. And what I'd like to do is just see Page 154 March 9 & 10, 2004 if-- MR. MUDD: Yes, ma'am. Let me -- let me try to help you just a little bit. The board directed, after the glitch cycle discussions were ongoing, that they prefer to have a task force together to work through a more robust listed species plan in the Growth Management Plan in order to do it. I will tell you, from what I've been briefed, we can fix it in the glitch cycle. I can take out one sentence, and the environmental community just loves it and the development community just hates it. And then I could take out another letter, or another line, and leave the line in, and I'll tell you, the environmental community hates it and the development community loves it, okay. So the glitch cycle isn't so glitchy -- it's not so easy, okay? Because you just expect it to be a one-line change or whatever, or a small paragraph to put in. But what we've got ourselves into is a battle, and the lines are drawn. And it became less obvious to staff, and I think to the commissioners in general as they heard some of the comments from some of the speakers, that isn't going to be an easy fix, that this needs to be a more robust plan that basically states that if we have species that need to be listed for our particular county that aren't covered by some state or fish and wildlife list, that they could add it and figure out a plan to protect those particular issues so that it necessarily isn't a state average or a federal average of species, and, you know, a taking of one won't necessarily affect. But in Collier County, that one might be the only -- might be the only bird or animal of that type in that entire species. So taking it from this particular community might be very traumatic. And I think that's where folks want it to go. And that's where we are with the staff, based on what I received -- what I think I heard -- and I think Mr. Schmitt and I have talked Page 155 March 9 & 1 O, 2004 about it a little bit -- what we heard from the board was, they wanted to come back with a plan, almost like the manatee protection plan, where the listed species issues were covered in total and that both sides of the issue had plenty of ample opportunity to craft that particular language in that plan. CHAIRMAN FIALA: So in other words, it's the developers against the environmentalists, and what we're saying is we want this group, this steering committee, to give us recommendations; is that what you're saying? MR. MUDD: Yeah. And to come up with a plan that everybody can live with. Because if not, Commissioner, then you're going to become the battleground, okay, and you're going to handle -- and you're going to handle every tortoise, you're going to handle every eagle, you're going to handle every chick, and that's where we are on this one. I mean, the glitch cycle, I understand it. I've been briefed on it, and I've also been briefed on, well, if you take out that line everybody's happy on this side, everybody hates it. If you do the other side, then it does just the opposite, flip the coin. CHAIRMAN FIALA: Well, apparently, no matter what this committee recommends, we're still going to come out with one side or the other, take in the sentence or leave out the sentence, and so we're still going to have the same result. So is it something that -- Commissioners, would you like to discuss it during the glitch cycle? COMMISSIONER COYLE: Whoops. CHAIRMAN FIALA: Go ahead, go ahead. COMMISSIONER COYLE: Okay. Yeah, I think we should discuss it, but let me ask a question. If we change this to make it clear that the Board of County Commissioners had the option of accepting the federal or state interpretations or making an interpretation of their Page 156 March 9 & 1 O, 2004 own, how would that hurt anyone? If it appeared that we didn't have sufficient information to make the decision, we could continue to defer to the federal and state agencies who had hopefully issued some kind of an opinion, and if we felt that there was an egregious error there, we would have the right and the ability to override that decision, and it would be clear. I would like to hear from both sides on that issue to see whether that would be a reasonable compromise. But I need to say that I have looked at the guidelines we have currently, and they clearly are not sufficient in my mind to permit me to make a good decision about the protection of those species, nor do we have the staff to do independent evaluations and monitoring, and that's what we hope to develop during this process that I think we're proceeding toward. But I think it would take us -- if we got into the business of trying to make a decision about these on our own, it's going to take us into some very shaky ground. But as long as we have the option to look at one or the other, based upon our understanding of the issue and the information available, then we could say, hey, we don't have enough information to overrule the federal and state, or on the other hand we can say, the federal and state decision is absolutely ridiculous and we're not going to accept it. And so I'd just like to have an understanding of how that might be interpreted. CHAIRMAN FIALA: Bill? COMMISSIONER COYLE: And that's just -- that's just an interim solution, okay? I'm really looking for the long-term study to be done. MR. SCHMITT: For the record, again, Joe Schmitt, administrator of community development and environmental services. And I'm going to let Bill talk, but just so you know, we have met and we've been looking at this glitch -- glitch cycle amendment, and Page 157 March 9 & 10, 2004 I'm going to put this on the visualizer, so Jim can -- the visualizer. There you go. What we had was -- that just gives you -- and I don't intend for you to read that, but-- CHAIRMAN FIALA: Oh. MR. SCHMITT: -- what was four sentences has now turned out to be a page, and we still aren't there yet. And this was just to take the ambiguity out of the Growth Management Plan language that says we will defer to state and federal agencies for letters of technical assistance. And Jim is right. I mean, he put it pretty succinctly. There is a divergence of views. And I've got to admit, it's not adversarial in any way. It's just a divergence of views. We have met. We are meeting with both communities and it is a -- I wouldn't call it an amicable relationship, but it isn't adversarial. It's just trying to reach an understanding so that staff-- the language in the GMP will allow staff to do what it needs to do to provide you the wherewithal to make the proper decision. But what started out as three lines, as you can see, is now a paragraph, almoSt a page, and we still aren't there. But -- and that was only to resolve the quick fix, because we still have to come back to you for, what is the staff going to do in the future in regards to dealing with listed species within the county, will we manage it ourselves or those type of things that you have also asked us to do, which is what the task force will -- or the -- I guess, the -- call it the task force or what do you want to call -- stakeholders' group will help us do in regards to bringing back to you some kind of a proposal with regards to how we're going to deal with listed species in general. Bill, I don't know if I kind of clarified it, but you can talk to specifics. MR. LORENZ: For the record, Bill Lorenz, environmental Page 158 March 9 & 10, 2004 services director. In terms of my perspective, one of the problems is, is that -- is that trying to go through the glitch amendment, which is -- right now has a very short time frame. I believe the documents I've already seen from Carlton Fields as they go through the public hearing process -- I think it's scheduled for your -- on your agenda for April 13th. So we're looking at a very short period of time to try to make a fix that I think the county manager had indicated early is, that it's somewhat difficult to make that fix from a policy perspective. What you have on the visualizer there, as Joe Schmitt indicated, was our attempt to try to provide some degree of clarification to those two sentences that are currently the policy. And it worked us through that whole -- that whole page, and this was working through the stakeholders' group. This is actually the notes that we put up on the screen that worked through the language. And we still weren't at any point of any answers. There's still a lot of holes and a lot of questions to ask. So I believe the discussion that we heard -- certainly I'll speak for myself-- in terms of coming back to the board with that -- that longer term effort where we can really put a lot of time and effort into it and come up with a -- with a product at least that we have considered all of the perspectives and all the angles, to come back to the board was preferable in staffs mind, because if we come back to you with a -- quote, a quick fix on the glitch, it's still not going to cover those -- those answers, and so we've just -- we've just taken a poor product and, I think, maybe substituting another poor product with it. At least I don't have confidence that I can come back to you in this short a time frame to be able to make those fixes. CHAIRMAN FIALA: Okay. Commissioner Halas? COMMISSIONER HALAS: Bill, set me straight here. Are we Page 159 March 9 & 10, 2004 trying to address -- is there a problem with the Growth Management Plan, or is it just a problem with the LDC, or is it a combination of the two? MR. LORENZ: No, it's the Growth Management Plan. It's the particular policy in the Growth Management Plan. Of course, the LDC had to be consistent with the Growth Management Plan. COMMISSIONER HALAS: Okay. So what do we -- we have to address the Growth Management Plan? MR. LORENZ: That's correct. COMMISSIONER HALAS: Okay. And when do you think that will take place? MR. LORENZ: Well, the schedule, in'the absence of the glitch, would be -- would be within, let's say, nine to 12 months. COMMISSIONER HALAS: Nine to 12 months. MR. MUDD: And, Commissioner, let me tell you what the glitch -- what the glitch is, okay, in the Growth Management Plan, because you need to -- you need to understand that. In one particular section it says that we will avoid all areas that have listed species on it and we will push growth away from that particular area. And then in the next breath it says that we will defer to -- to the Corps of Engineers, the Fish and Wildlife Service, and their particular opinions, and that their opinions will be consistent with our Growth Management Plan. So here you have one instance, you're saying, hey, if you have any listed species, you get growth away from it, and in the next issue you say, well, if somebody comes in with a biological opinion, okay, from one of those federal agencies, state or federal, and you defer to that particular opinion. And so that's kind of where the issue is, and that's the way it's written. And now you can see -- now you can see by striking the language -- you strike the language that says you're going to defer Page 160 March 9 & 1 O, 2004 growth from listed species habitat, you strike it, and then the developers say, well, I'll go do a biological opinion, and that's fine. And if you strike the other issue that says, you defer to state and federal opinions, and you cross that thing and you say that they don't necessarily need to be consistent with your Growth Management Plan, then you're into -- you're pushing growth away from habitat. And so -- and that-- and that's kind of where they sit in the process. And so we were hoping to come up with a more -- a better plan than two lines to figure that particular issue out. COMMISSIONER HALAS: Okay. The other question I have, has this always been a problem, or has there -- has there been a change at some point in time where this all of a sudden came about? MR. SCHMITT: This became a problem-- COMMISSIONER HALAS: Well, was there some -- MR. SCHMITT: This became a problem with the amendments that we passed in -- to comply with the governor's order, so this was part of the rural fringe and eastern lands amendments. And then when we developed the-- COMMISSIONER HALAS: And what time frame was that? MR. SCHMITT: Year, year and a half ago, almost -- MR. LORENZ: 2002. MR. SCHMITT: Yeah, 2002, yeah. COMMISSIONER HALAS: Okay. MR. SCHMITT: When we passed that finally in June of 2002. COMMISSIONER HALAS: Why didn't we look at that at the time to see how that was going to affect the Growth Management Plan MR. SCHMITT: Commissioner, we have-- COMMISSIONER HALAS: -- or the LDC? MR. SCHMITT: We have. But we also -- in the developing of that Growth Management Plan and all the implementing guidance to Page 161 March 9 & 1 O, 2004 cover that-- the entire aspect of the rural fringe and eastern lands, that's why we were coming back in this glitch cycle. I think we're somewhere around the neighborhood of 50 something amendments that we have to come back to fix inconsistencies that were developed as we formulated the language in the Growth Management Plan. This was just one of those. It's certainly the most contentious issue. The others are -- they were oil and gas issues and other type of things, mineral rights. We're coming back in April with that entire list of glitches that we have to fix. We're also -- this issue with coastal construction in regards to densities and those kind of things that we have found that have errors, or at least inconsistencies in the plan, this was one of them. This is the one that's the hottest button right now, of course. We really were looking at May for advertising again, meeting with the stakeholders and bringing back to you in December a recommendation. So if-- like Bill said, if we were to try and put it in this cycle, we can do it, it's just -- I honestly don't think we can get there from here that's going to make everyone happy. We can bring it in and lay it all out to you during the GMP cycle -- during the GMP hearings. COMMISSIONER HALAS: Okay. The other question -- I got a couple more questions, then I'll be finished here. Is it the fact that maybe we rush these things through that we overlooked some -- some of the fine points as we were changing these amendments that caused us to get into this position where we are today? MR. SCHMITT: I -- it's a good question, but I can't put my finger on it. I mean, we spent over two -- two years through committee meetings and developing these -- the proposal to comply with the governor's order and developing both the rural fringe Page 162 March 9 & 10, 2004 amendment and the eastern lands amendments. It's when we begin to implement and had to go back and began to apply what we thought was right, that's where we've begun to kind of find inconsistencies. Some of them, what I said about the 50 or so, some are strike out of single words, but others are a little bit more complex. I don't know-- Bill, do you-- COMMISSIONER HALAS: So like this particular one is very complex and so -- MR. SCHMITT: What we thought we wrote was -- we thought, was pretty clear. And it -- in fact, it was written because -- it was written to make sure that staff did defer to state and federal agencies for technical assistance. And in some instances now that has created what is termed an unintended consequence. Maybe some people, they would prefer that it not be deferred to the state and federal agencies, that you, the county commissioners, make the decision and not defer or pass that off to the state or feds. COMMISSIONER HALAS: My feeling is -- I feel that we -- we, the county commissioners, and the residents of this particular county, know what we feel is best for the interest of not only developing -- development, but also of wildlife protection. And so I'd like to see us try to address this issue as soon as possible, and maybe we're going to put undue pressure on the -- on the task force that's looking into this, but we need to address this as soon as possible and get it taken care of. CHAIRMAN FIALA: Commissioner Coletta? COMMISSIONER COLETTA: Thank you. I'm starting to have some concerns. We've got a task force who obviously has been working together, at least I thought they were. Suddenly this comes up, and I thought it was a pretty benign item to Page 163 March 9 & 1 O, 2004 begin with. Then we have a number of the people from the task force come running in there from the other end very concerned about the fact that this is taking place outside of the task force, which is, again, outside the sunshine, but we won't go there today. Did I go there? I'm sorry. COMMISSIONER HENNING: If you don't, I will. COMMISSIONER COLETTA: But here we've got a problem. What I'd like to do -- I think the only way I'm going to be able to come up with some sort of definite idea where we're going is to be able to listen to the stakeholders and be able to have them speak to us about what their concerns are. I'm starting to become very concerned about this. I thought we were dealing with an item that was pretty cut and dry when this day started, when Donna brought it up, Commissioner Fiala -- CHAIRMAN FIALA: No, it's Donna. COMMISSIONER COLETTA: Donna. Donna, Commissioner Fiala. But obviously there's more than meets the eye here. Could we possibly go to the speakers that would like to speak on this? MR. MUDD: Commissioner, if you want to do that, I'd suggest that you advertise this particular item -- CHAIRMAN FIALA: We don't have any speakers. MR. MUDD: -- and you get all the stakeholders here, because you're going to get yourselves into-- COMMISSIONER COLETTA: And I suggest that we do this. If we're not going to have -- if we've got a task force that isn't working together and can't come to a definite understanding where it is, let's bring it here under the sunshine in front of us and have everybody address it. And I make a motion at this time that we continue this at the next meeting. Page 164 March 9 & 1 O, 2004 COMMISSIONER HALAS: Well, not the next meeting. Might be the meeting after. COMMISSIONER COLETTA: I don't care, in a coming meeting, let me put it that way. CHAIRMAN FIALA: Okay. There's a motion on the floor to continue this, or to put this on -- COMMISSIONER COLETTA: Future agenda. CHAIRMAN FIALA: -- the next agenda. COMMISSIONER COLETTA: Or a future agenda. CHAIRMAN FIALA: Or future. COMMISSIONER COLETTA: I'm not too sure how it works out for the task force or staff or anyone else. I hate to -- CHAIRMAN FIALA: I'm looking to second that, but I first want to see what staff is discussing. MR. MUDD: No. Commissioner, what Joe's basically talking about, the evidence side to get ready for the next meeting, and that's not a problem. You basically want to hear both sides of this particular issue. CHAIRMAN FIALA: Yeah. MR. MUDD: Okay. And I just relayed to Mr. Schmitt, you know, that you would make an executive summary, basically outline what you have. You've got this particular item that's sitting on the visualizer right now, and you basically want to make sure that you hear both sides of the particular issue so that you understand it better, so that you can make a determination if you want to put this in a glitch cycle and move rather rapidly on it, or maybe have special hearings or whatever in order to get that done outside of what's already there, or if you want to continue this until the fall and come up with a plan. I don't see a problem. CHAIRMAN FIALA: Okay. There's a motion on the floor by Commissioner Halas -- Page 165 March 9 & 1 O, 2004 COMMISSIONER COLETTA: No, Coletta. CHAIRMAN FIALA: Oh, Coletta. I'm sorry -- to -- COMMISSIONER COLETTA: The good looking one. CHAIRMAN FIALA: The good looking one -- to put it on the next agenda, and I'll second that motion. Commissioner Henning? COMMISSIONER HENNING: I guess that's the proper way that we go, because we did give direction for staff, and I'm trying to find it. And I think we gave -- no, I don't think, I'm sure -- we gave direction to Joe Schmitt to deal with it holistically and bring it back with GMP and Land Development Code amendments. And if we're going to change our mind or reconsider it, then it -- then it should come back in a public forum, advertised public forum. And my concern is, the correspondence that you received, and seeing the people out here today, the stakeholders committee works behind closed doors, and this is the result of it. CHAIRMAN FIALA: They've never met? COMMISSIONER HENNING: Let me finish now. We've had the environmental community and the people in North Bay that want to protect an eagle, and obviously -- these are the people on the stakeholders' committee. They're here today to see what kind of action that we're going to do today. Now, how they communicated, I don't know. The only thing I can do is guess since they didn't have a meeting. CHAIRMAN FIALA: Commissioner Coyle? COMMISSIONER COYLE: Yeah, I would like to make sure that if we schedule this for the next meeting, that we plan on spending a little time on this issue. CHAIRMAN FIALA: We can't miss on that. COMMISSIONER COYLE: Because I think there are people on this board who need to understand a little better about what is going Page 166 March 9 & 1 O, 2004 on, and I think we need to spend some time making sure that happens. MR. MUDD: Yes, sir. COMMISSIONER COYLE: And I don't want to take the time today to do that. MR. MUDD: No, I will make sure that we block this for a time certain and that we have -- we have about two hours that are dedicated to it. CHAIRMAN FIALA: Great, great. COMMISSIONER COYLE: Good. CHAIRMAN FIALA: Okay, fine. So we're all -- we have a motion on the floor. Oh -- and a second. David, would you read the motion back. MR. WEIGEL: Well, I would -- and I was looking for a little clarification on the motion, and that is, there's a motion to bring this matter back, this matter of discussion, back at next board meeting, March 23rd. And I wanted to make sure we're clear. The discussion seemed to initially start here in regard to more of a procedural question, that is, do we include this -- this issue concerning species in the glitch amendment cycle or in a separate cycle. I am a little concern about the legislative sausage that we make not being -- not being part of the advertised legislative process that we typically have. And so I think it would be appropriate for you to bring something back for discussion at the next board meeting, but you -- even at this point, perhaps, you're looking to limit the discussion to learn more about the issues but that your ultimate decision is going to be to include it in the glitch cycle or not. CHAIRMAN FIALA: Right, that's what we're -- that's what we're going to be talking about. MR. WEIGEL: Okay. So that's kind of the motion, is to bring something back for discussion as to whether to include this issue, Growth Management Plan issue, for species in the glitch cycle process Page 167 March 9 & 1 O, 2004 or in a later GMP amendment. CHAIRMAN FIALA: Very good. So we have a motion on the floor by Commissioner Coletta and a second by Commissioner Fiala. Do we have any further discussion? (No response.) CHAIRMAN FIALA: All those in favor, say aye. COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: (No response.) CHAIRMAN FIALA: CHAIRMAN FIALA: Opposed, like sign. And we have a 5-0 on that. Thank you. Now, let's see. We have staff and general commission communications. Item #15B CLOSED SESSION REGARDING HEALTHCARE A/K/A MERRILL GARDENS AND SETTLEMENT NEGOTIATIONS ON AQIIAPORT TO BF, PIIT ON NF, XT AGF~NDA IF NF, CF, SSARY Do have you something, David? MR. WEIGEL: Yes, I do. Thank you. Pursuant to 286.011, the government in the sunshine law, I bring to your attention the county attorney request for a potential closed session, that is, executive session out of sunshine, relating to negotiations and/or settlement and strategy for one or two lawsuits, one is related to Health Care REIT, comma, Inc., also known as Merrill Gardens, case number 02-5002, and also case number 03-231. Page 168 March 9 & 10, 2004 These are related to our adult living facility im -- school impact fee cases. And I expect there's a very real possibility that I'll wish to bring that back on the agenda for an executive session, and then come out from executive session to a very brief discussion and direction from the board. The second case which is, perhaps, less -- has less potential to be heard next week would be -- next meeting, would be relating to settlement negotiations on the Aquaport-related cases. And again, based on additional information that we may rec -- be receiving, it may not be necessary to go forward. But as a courtesy to the public and the board, I have always provided an advanced indication of this. And that's my message. Thanks. CHAIRMAN FIALA: Thank you. Item #15C ITEMS 7B AND THEN 7A TO BE HEARD ON MARCH 10, 2004 AT 9:00 A.M. RF, GARD CAP D'ANTIBFiS ' Mr. Mudd? MR. MUDD: Commissioner, the first thing I want to make sure that we take a look at this agenda -- and I want to make sure that everybody understands that this meeting is going to be continued tomorrow and that we are going to hear two items for the Board of Zoning Appeals, both of which deal with the Cap D'Antibes issue as far as these appeals are concerned. And for public record, it will start at nine o'clock tomorrow in these chambers, and we will start with item 7(B). And 7(B) is, this item is heard on the 10th of March, this -- that item requires that all participants be sworn in and ex parte disclosure be provided by Page 169 March 9 & 1 O, 2004 commission members. It's ADA number 2003-AR-4933, Michael V. Volpe of Robins, Kaplan, Miller and Ciresi, L.L.P. representing Pelican Bay Property Owners' Association, requesting an appeal to official interpretation INTP 2003-AR-4306 relative to the approval of SDPA-2001-AR-412, Waterpark Place at Pelican Bay. And then that item, 7(B), will be followed by 7(A), which is ADA-2003-AR-5218, Pelican Bay Foundation, Inc., represented by Robert D. Pritt of Roetzel and Andress, requesting an appeal of official interpretation INTP-2003-AR-4307, relating to the approval of SDPA-2001-AR-412 for the Cap D'Antibes condominium project, Waterpark Place, within the Pelican Bay DRI/PUD. This appeal is pursuant to Collier County Land Development Code section 1.6.6. So, again, this meeting will be continued tomorrow to discuss those two items. Sir? COMMISSIONER HALAS: Why are we going to item B before going to item A? CHAIRMAN FIALA: The chairman requested that B be taken before item A. COMMISSIONER HALAS: Okay. CHAIRMAN FIALA: I was just -- I was -- I was approached to change them, and I talked with Leo. I asked if there was any problem. He said, they're both being presented by the -- you know, one, one group, one another, but it's both addressing the same issue, and he doesn't see a problem with it. So I phoned a message back. I did not speak to the individual -- and phoned a message back and said we didn't have a problem changing A and B. COMMISSIONER HALAS: Okay. Page 170 March 9 & 10, 2004 Item #15D MARCH 19 & MARCH 20, 2004 IS BEST BUY COLLECTION ACTIVITIES FROM 10:00 A.M. TO 5 P.M. TO TURN IN ALL l JNWANTFD COMPI ~TF. RS, PR1NTF. RS, PHONF, S, F. TC. MR. MUDD: Next item, Commissioners, I would say that -- and this is just an item of public awareness. (Dais telephone rang.) MR. MUDD: Can you hear me now? CHAIRMAN FIALA: I think that's our telephone here. MR. MUDD: Just mm the -- just mm the ringer off, ma'am, off to the phone. COMMISSIONER HALAS: to you. COMMISSIONER COYLE: you? Find out who it is. They're talking This is Donna Fiala, can I help MR. MUDD: This is an item of public awareness. On Friday and Saturday, March 19th and 20th, 2004, we're going to have a -- we call it a Best Buy. electronics collection -- collection activity. It will be at Best Buy's, Naples, at 6325 Naples Boulevard. Basically what will happen at that particular event for those two days, that we will take, free of charge, any old monitors, CPUs, cell phones, televisions, phones, terminals, printers, keyboards, copiers, scanners, mice from your computer, fax machines, at no cost to the people that turn them in. If they're broken, instead of getting them out in the landfill and having any risk of lead seeping out of those particular items, turn them in at Best Buy on the 19th to the 20th of March from 10 a.m. to 5 p.m., and it will be at no cost to the people that turn those items in. Best Buy is working with us, and we're trying to stretch those Page 171 March 9 & 10, 2004 dollars to make sure that we take it and it doesn't cost the taxpayers of Collier County anything to dispose of those particular items properly. That's all I have, Madam Chair. CHAIRMAN FIALA: Thank you. Item # 15E COMMISSIONER HENN1NG REGARDING GOVERNOR'S PRESS CONFERENCE CONCERNING THE HIGH SPEED RAIL ISSUE. STAFF TO WORK WITH BCC TO EDUCATE THE PUBLIC ON A PETITION INCENTIVE FOR THE VOTERS TO SIGN REGARDING THE HIGH SPEED RAIL AND THAT IT SERVES A VALID PUBLIC PURPOSE FOR THE TAXPAYERS OF COIJJlF, R COl JNTY Commissioner Henning? COMMISSIONER HENNING: Two things. The -- I think it was very productive when we were in Tallahassee, when the Board of Commissioners went up there to lobby the -- our legislators not to hurt us during the budgeting process for Tallahassee. I had an opportunity to go to the governor's press conference. The press conference was on the constitutional amendment of the high speed rail. The governor is wishing to, through a petition method of the residents, or the voters of Col -- or the State of Florida -- has put back on the ballot to reconsider a high speed rail in the State of Florida. One example that he gave to link in between Orlando and Tampa, the cost estimate is going to be over $2 billion, and no partnership with any of the independent rail companies or any money coming from the feds. So, Commissioners, those items are going to come from our Page 172 March 9 & 1 O, 2004 transportation dollars, or gas taxes and the transportation fund and so on and so forth. The reason I wanted to bring this up is, I would hope that the county and the Board of Commissioners would be proactive and encouraging the citizens to sign a petition to put this back on the ballot. Request them to work with staff to do a press release and have means on our website to -- for citizens to access the petition, fill it out, and what to do with it after that. The -- I also want to talk to the party chairs, chair people, and possibly do a press conference and encouraging, through the media, to get that out. CHAIRMAN FIALA: Thanks very much for your proactive stance on this. That's wonderful. Anything I can do to support you, and I'm sure the other commissioners feel the same way. Thank you. COMMISSIONER HENNING: I'll send you the petition. And let's see. I know I'm out at a speaking engagement, and I've got a lot of petitions that I'm trying to fill out. So I ask you, when you're out, to -- I'll get you the information, and ask the voters to sign a petition. MR. MUDD: From a staff perspective, we'll help work on the press release, we'll work the website so we get the petition and the instructions on it in order to make is user-friendly for the folks that want to access it through our website. COMMISSIONER HENNING: And I'll send the letter to the chairman of the board of Lee County and Charlotte County asking them to participate in that. CHAIRMAN FIALA: Could we do a little interview on our government channel as well so that people can tune in and see what the issue is and what we need them to do? COMMISSIONER HENNING: Yes. CHAIRMAN FIALA: Great, great. Would you -- would you be Page 173 March 9 & 10, 2004 our key person there? COMMISSIONER HENNING: Sure. MR. WEIGEL: If the staff is taking some direction at this point to go forward on this, notwithstanding that this is board communication, I would appreciate if the record -- that record could reflect at least a consensus, a majority of the board approving that direction and that it is serving a valid public purpose, because it will take some human resource and expenditure in making some of these things available to the public. So if you would want to put something on the record along that line, I think that that would assist the process a bit. COMMISSIONER COYLE: Do it now? MR. WEIGEL: Well, you could do it now. COMMISSIONER HENNING: I make a motion that we direct staff to work with the Board of Commissioners to educate the public on a petition incentive, for the voters to sign the petition. MR. WEIGEL: And that this serves a valid public service. COMMISSIONER HENNING: And it serves valid public person (sic) for the residents and taxpayers of Collier County. CHAIRMAN FIALA: Okay. And I'll second that. So we have a motion on the floor. David, would you like to read the motion back to us just to make sure we all hear it. MR. WEIGEL: Okay. It appears to be a motion to direct staff to assist commission and the commissioners in creating a press release and other information for the public relating to the governor's initiative pertaining to a constitutional ballot initiative to derail the high speed rail. COMMISSIONER HENNING: There you go. MR. WEIGEL: And that the board is finding in its motion that this serves a valid public purpose in the public interest of the taxpayers Page 174 March 9 & 1 O, 2004 and residents of Collier County. Amen. CHAIRMAN FIALA: We have a motion on the floor by Commissioner Henning, a second by Commissioner Fiala. All those in favor, say aye. COMMISSIONER HALAS: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COYLE: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: And opposed, like sign. (No response.) CHAIRMAN FIALA: And we have a 5-0 on that. Item #15F COMMISSIONER HENNING REGARDING ZERO LOT LINES WlTH SWIMMING POOIJS IN A Pl ID COMMISSIONER HENNING: One other thing. CHAIRMAN FIALA: Uh-huh. COMMISSIONER HENNING: It was brought to my attention by a resident that's assisting to build some townhouses from a previous approved PUD with zero lot lines, and they -- finding out that the residents want swimming pools, and the code doesn't provide it in our Land Development Code. Is -- that's what-- staff's interpretation. I looked at it and I seen ways that it could, but there are a lot of issues similar to that that I see on a day-to-day basis, and it goes back to the days when -- when some of our staff did some legislation things that we felt that was inappropriate and we took action. It's gone all the way around the other way now, and nobody really wants to make a -- anything in the gray area, making any of the Page 175 March 9 & 1 O, 2004 decisions. Therefore, that PUD is coming back for an amendment to add an accessory use, such as swimming pools. I think it's inappropriate (sic) and good for the day-to-day business to empower the community development administrator to rule on such things when there is conflict on small items like this. I just thought I'd bring that up for discussion and see what the other board members think. CHAIRMAN FIALA: Boy, I certainly agree. You know, I've been thinking the same thing. It seems like they're afraid to make any decisions at all, especially something simple like that that should be just, you know, common sense thing. And I don't know how we get there, but I totally agree with you. COMMISSIONER HALAS: Well, just so long as we don't run into a situation that we're going to be addressing tomorrow. That's what's happened in the past. So there's some good and bad on all cases here. So I really think that we need to make sure that the process is followed through so we don't run into any problems like we have in the past. COMMISSIONER HENNING: Well, the reason I bring it up, if we take it out of the hands of the planning person, those gray areas, and if there is any gray areas, go to the administrator. COMMISSIONER HALAS: No, I think it should go back to the Planning Commission again. COMMISSIONER HENNING: Okay. COMMISSIONER HALAS: Yeah, I really think so, because I -- if you -- you know, we had -- we went through the whole scenario with the administrator making some decisions, and that's why we're going to be meeting tomorrow, because -- MR. MUDD: Commissioner, if I -- COMMISSIONER HENN1NG: -- that was a planning director. COMMISSIONER HALAS: Well -- Page 176 March 9 & 1 O, 2004 MR. MUDD: If I can help just a little bit, and I think it will get you where you both want to go, okay? Why don't we, in those gray areas where we -- if-- when we identify them, have the administrator make a decision, okay, take that decision to the Planning Commission COMMISSIONER HALAS: Exactly. MR. MUDD: -- tell them why he made the decision. And then -- and if the Planning Commission has no objection, then it stands, and then we move out with it? COMMISSIONER HALAS: I think it's a great idea. CHAIRMAN FIALA: Commissioner Henning? COMMISSIONER HENNING: Well, let's try it. MR. MUDD: Sure. COMMISSIONER HENNING: I just -- COMMISSIONER HALAS: I know where you're going, but -- MR. MUDD: What you don't want -- right now people in community development are a little bit shell shocked, and I'll -- I'll be honest with you, okay, and rightfully so. And so -- because they saw some people removed from their particular -- from their particular jobs. And I don't want to overstate it, but what I will say is, if there's an area that's got some controversy to it and it's a gray area, I would prefer that the community development's administrator make that decision, okay, and then take that decision to the Planning Commission to air it, to vet it in the public, to let them know what's there, and if they don't have a problem with what -- the decision he made, then it -- then it will stand, and then we'll move on. And this will preclude an amendment to a PUD and those kind of things that cost money for that particular person when it probably doesn't have to cost them money. CHAIRMAN FIALA: Commissioner Coyle? Page 177 March 9 & 1 O, 2004 COMMISSIONER COYLE: How do you determine what gray areas are? What items are you going to handle in that way? I'll tell you, I think the intent is really good, but I'm very uneasy about making these kinds of decisions on the fly and using terms like gray areas, you know. I think if we're going to make a policy change like that, we ought at least spend some time defining it a little more clearly. COMMISSIONER HALAS: Yep. I think we're on the right track. COMMISSIONER COYLE: Yeah. COMMISSIONER HALAS: I think we're in the right direction though. COMMISSIONER HENNING: Joe, you could give us some examples, can't you? MR. SCHMITT: Yeah. This was an example, Commissioner Henning was correct, but it's a little more in-depth than that. It was a PUD language that specified setbacks for single-family homes and multi-family homes. It just so happens in this PUD, they were platted single-family, adjoined single-family homes, town homes. There was no definitive language in the PUD that described the side yard setbacks, so we deferred to the LDC. There was some ambiguity in the LDC. It depends on which way you read the LDC whether or not you could legitimize, considering that they could have an accessory structure, a pool. I make these kind of decisions every day, or at least most every day of the week, in regards to trying -- of the 150 or so SDPs that we're reviewing at any given time, and probably 100 or so land use items in the building at any given time. This one, where it becomes difficult is, are you making a decision that doesn't violate, or at least -- that I'm creating policy or Page 178 March 9 & 1 O, 2004 that I'm creating something that is -- you're only empowered to do, and that's where I'm careful. Because as they say, discretion lies in the hands of the Board of County Commissioners. In this case here, I'm offering -- they have to come back and amend the PUD because the PUD needs to specify the language for the accessory structures, and they recognize that. It's something they omitted. I was going to issue a conditional -- a building permit -- a conditional CO and a conditional building permit, which will be then lifted. And once the pool is constructed, or once -- once you-all -- if, in fact, you approve the PUD amendment. That's where the issue is a struggle because you've got to make a determination, is this something that really requires the language to be amended or is it something you could say, okay, make a decision and say, this is what -- how I interpreted it, this is what I believe this product was, and then justify it from there. But, Commissioner Coyle, you asked the right question. There are times when, in fact, you could end up down the other road. And, you know, as they say -- we used to say, you bet your bars, you know, that's kind of where we're at. But we're into, you know, similar situations. I'll bring up the bad word, the Bellagio, where a decision was made based on what we thought was going to happen in a future legislation, and it never happened. And as a result-- so that's -- it's one of those situations. As -- this situation is a no-brainer, it really is not (sic). It's just, how do you make that decision so you do it legally. COMMISSIONER COYLE: And how do you decide upon setbacks if you're going to permit a pool? What do you consider to be an acceptable setback under that particular circumstance? MR. SCHMITT: We defer to the LDC. The LDC for multi-family structures does not allow -- this is a zero -- zero lot line, Page 179 March 9 & 1 O, 2004 and I have to -- I have to defer to Susan, because she's my expert in that. MS. MURRAY: In this case, due to the definition in the LDC, you would apply the single-family dwelling unit setback -- or, I'm sorry. You would apply the multi-family dwelling unit setback. And the way it's structured and the way the lots are laid out, you could not fit a pool on those narrow lots if you applied that setback. COMMISSIONER COYLE: So you have to -- you have to come up with different setbacks? MS. MURRAY: Exactly. COMMISSIONER COYLE: You have to make some judgmental decision-- MS. MURRAY: Well-- COMMISSIONER COYLE: And my point is, that no good deed goes unpunished. MS. MURRAY: In this case-- COMMISSIONER COYLE: Once you try to make a decision to make somebody happy, somebody else is going to be unhappy that you did that, and that's the problem that we always run into. MS. MURRAY: Right. And in this case, there was an omission on behalf of the petitioner from putting the setbacks in. And when that happens, then the law says we revert to the provisions of the LDC. And so the provisions of the LDC didn't work in this case because they should have put in the correct setback when the PUD was first established. They have an application in to amend the PUD. It's been in for a little while. We're on track to bring it forward to you. And as Joe mentioned, he made the decision to issue a conditional building permit with a conditional CO and a bond in case the revised setbacks do not pass with the Board of County Commissioners. I think probably what staff would appreciate, and you point out, Page 180 March 9 & 1 O, 2004 Commissioner Coyle, the very difficulty of all the decisions we have to make every day. I mean, we have a front counter staff that handles probably close to 100 inquiries a day. Each one is -- has an individual circumstance, each piece of property has individual unique circumstances, and they have to try to apply the code to those circumstances, so they are making those types of decisions every day when the code is not black and white. I think the staff would really appreciate an endorsement from you-all to be able to feel comfortable making decisions in gray areas of the code on their own with your support. They have my support as their supervisor, and I know they have Joe's support as well. But as you point out, some folks in the past have been, you know, punished for things that people objected to, and that does have a bearing on the way you conduct business in the future. COMMISSIONER COYLE: It is a difficult problem. I do sympathize with you in that. I've seen it. I know exactly what you're talking about, and I wish -- I hope we can find a solution to it, and I'm more than willing to do that. But you understand the minute that you make a decision that upsets a constituent who comes to a commissioner who then complains about what you did, there's going to be a commissioner who's asking questions about what you did and why you did it. MS. MURRAY: Right. COMMISSIONER COYLE: It's a very difficult problem. And to the extent that we can identify some of the more common of these issues up front and then let us make a decision, a blanket decision that, yes, you can do those kinds of things. If you can define them, I'd feel fairly comfortable saying, okay, I'd be willing to defend your decision with any constituents who found fault with it, but -- MR. MURRAY: I think-- COMMISSIONER COYLE: -- without having them defined -- Page 181 March 9 & 1 O, 2004 MS. MURRAY: It will-- COMMISSIONER COYLE: -- is the problem. MS. MURRAY: And I agree with you. It will be really challenging to try to define those decisions, but we can certainly try. I think the flip side of that, that you have to consider is, that when we make a decision or we opt not to make a de -- I don't want to say not make a decision, because we make decisions every day, and nobody's afraid to make a decision in my shop. I don't hire people that are afraid to make decisions. The problem is, if we go against what somebody is requesting, then it's kind of the flip side of what you're saying. COMMISSIONER COYLE: That's right. MS. MURRAY: So it's kind of two sides of the same issue. Either somebody doesn't like the decision that we made, or somebody objects because we didn't make a decision in their favor. So we work both sides of it. COMMISSIONER COYLE: And you've never made a decision that doesn't fall into that category. MS. MURRAY: Correct. COMMISSIONER COYLE: Nor have we. CHAIRMAN FIALA: Yeah. MR. SCHMITT: But I do appreciate Commissioner Henning's objective analysis of this, and he's correct that there are times when certainly it's something that we can do. It's just a matter of, in the letter of the law, it may conflict with -- well, it will conflict with the language in the PUD. And I think that in those -- in those instances probably another way to notify you through memorandum is that, here's what we've done, because, frankly, the sad part about this situation right now, the people who are going to be disadvantaged are the people waiting to purchase the home, because either they will not -- they will -- they Page 182 March 9 & 1 O, 2004 will have to delay the closing or they close and then they have the pool constructed afterwards. And, you know, that's -- that's what we're dealing with. COMMISSIONER HENNING: Well, I appreciate the healthy discussion. It's clearly no -- there's no silver bullet in this case, but thank you. CHAIRMAN FIALA: Commissioner Halas? COMMISSIONER HALAS: Yes. I just -- I think that when it comes to where we get into a real big gray area, I think instead of putting the responsibility on the shoulders of one individual, I believe that we should use the -- all sources that we have available in the county, and I think maybe what we ought to do is address that back to the Planning Commission. They seem to know the Land Development Code pretty well there, or they can figure it out, and then give us guidance what to do on a situation of this nature. I just want to make sure that we don't get ourselves involved in other possible litigation and that we try to do the thing right. That's the most important thing. Let's get the thing done right. And I trust your staff. I think they do an outstanding job, but I think there's some areas that, you know, if you -- if it's questionable, don't bet your bars, as you said. CHAIRMAN FIALA: Okay. Commissioner Coyle? COMMISSIONER COYLE: Nothing from me. CHAIRMAN FIALA: Commissioner Halas? COMMISSIONER HALAS: I'm finished for the day. CHAIRMAN FIALA: Commissioner Coletta? COMMISSIONER COLETTA: I had a little bit of an oversight. When we mentioned the people we were giving credit to for bringing the FEMA to a final solution-- COMMISSIONER HALAS: Commissioner Coyle here -- I Page 183 March 9 & 10, 2004 mean, Commissioner Coletta. CHAIRMAN FIALA: Yes. COMMISSIONER COLETTA: No. Actually Representative Dudley Goodlette was most instrumental from day one in being involved with it, and also Mike Davis played a part in it, and I'd be miffed if I didn't mention their names at this time. MR. MUDD: Commissioner, I would also add Congressman Goss also wrote letters -- COMMISSIONER COLETTA: You're absolutely correct. MR. MUDD: And I think-- now I've covered-- you've covered them all. COMMISSIONER COLETTA: I hope we covered it all now. I feel bad about the fact that I missed those names in the beginning. COMMISSIONER HENNING: What about Mario Diaz-Balart? COMMISSIONER COYLE: You covered Diaz-Balart. MR. MUDD: He got-- COMMISSIONER COLETTA: Yes, I sure did. MR. MUDD: You got that one in the beginning. CHAIRMAN FIALA: Wow, that's a -- what a team effort. That's really great. I appreciate all of that. And I go last. I want to tell you, we had a great -- a great meeting in Tallahassee. We did a lot of lobbying, and I think we were effective. I hope we can see it in dollars coming back to Collier County. I also wanted to give my sincerest sympathies to Cheryl -- to the Cheryl Reinertsen family, who just died on Friday, and she leaves behind little children. She and her husband took in a lot of foster children, and they just adopted two of them two years ago. I think they're four and six years old right now. And so, my sincerest sympathies to their family. And with that -- COMMISSIONER HALAS: Make a motion we adjourn. Page 184 March 9 & 1 O, 2004 CHAIRMAN FIALA: No, no, no. We just want to continue the meeting till tomorrow. COMMISSIONER HALAS: Oh, oh, that's right. CHAIRMAN FIALA: And with that, we'll continue the meeting till tomorrow. COMMISSIONER HALAS: Shoot. There being no further business for the good of the County, the meeting was recessed by order of the Chair at 3:53 p.m. and reconvened on March 10, 2004, at 9:00 a.m. in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Donna Fiala Frank Halas Tom Henning Fred W. Coyle Jim Coletta ALSO PRESENT: Jim Mudd, County Manager; and David Weigel, County Attorney. CHAIRMAN FIALA: The meeting will come to order. We never finished our meeting yesterday. This is a continuation of the Page 185 March 9 & 1 O, 2004 meeting from Tuesday. And today we're going to be addressing just one subject, and before we begin I would like to set the rules of the road straight. We -- I understand that staff has already talked with the presenters on both sides and they both have their rules as far as how much time they have and so forth. But what I'm going to do, in my capacity, number one, is limit all the speakers to three minutes, so everybody understands that. And I also want to point out that this hearing isn't about whether we like the building or don't like the building. And I'm going to ask David to succinctly tell us exactly what we're here for today. COMMISSIONER HALAS: Before we proceed, could I make one announcement? CHAIRMAN FIALA: Yes. COMMISSIONER HALAS: I'll be leaving the dais about 1:00. We have -- I'm on the Canvassing Board for the election committee; and we're going to go -- be going through a recount of the election results of the city council on Marco Island, and-- so I'll be -- that starts at 1:00, and I'll try to get back here as soon as possible after we complete the recount. CHAIRMAN FIALA: Commissioner, how about this. I understand that Commissioner Henning has a noon engagement. I do too. I have a commitment that I -- that I promised to be at a month ago yet. So how about if we break for lunch at noon and return at 2:00, and that way it should cover everybody's schedule. Would that be all right with everyone? COMMISSIONER HALAS: Fine with me. CHAIRMAN FIALA: Okay. COMMISSIONER HENNING: Commissioner, I don't have to be anywhere. I'm here for the day. CHAIRMAN FIALA: Oh, okay. I had understood -- somebody Page 186 March 9 & 1 O, 2004 told me that you were leaving at noon. COMMISSIONER HENNING: No. I -- the concern that I have that I relayed to our office staff was, can we rearrange our schedule so that we can be here, all of us be here at once, and I just recommended that somebody talk to the county attorney to make sure, as far as legality, whether we can just, you know, pop in and out like that or, like your suggestion is, just break for two hours. CHAIRMAN FIALA: Yeah. I think that would be good because we definitely want Commissioner Halas here, and he has no control over -- over that board. He must be there by law, and we need to break for lunch, and I had al -- now, I had already planned on being here. But we all want to be here for this entire event so -- COMMISSIONER HALAS: Right. CHAIRMAN FIALA: -- discussion, excuse me, not event, discussion. And so we will break then at noon and we'll be back at 2:00 and that way we'll cover everybody's schedule. COMMISSIONER HALAS: Thank you very much. CHAIRMAN FIALA: Very good. And thank you for bringing that up. Now, can we go on to -- oh, and you wanted to say a prayer before begin, didn't you? Let's do that. MR. MUDD: Yes, ma'am. Sure. CHAIRMAN FIALA: Would you please stand, and then we'll -- after the prayer, we'll say the pledge. MR. MUDD: Ladies and gentlemen, let us pray. Our Heavenly Father, we ask your blessings on these proceedings and all who are gathered here. We ask a special blessing on this Board of County Commissioners, guide them in their deliberations. Grant them the wisdom and vision to meet the trials of this day and the days to come. Bless us now as we undertake the business of Collier County and its citizens, that our actions will serve the greater good of all Page 187 March 9 & 1 O, 2004 citizens and be acceptable in your sight. Your will be done, amen. (The Pledge of Allegiance was recited in unison.) MR. WHITE: Madam Chair, just as a procedural matter. Assistant County Attorney Patrick White. I just would like to put on the record that there were two app -- publications of legal notice. I've reviewed each of the affidavits of publication for both of the items, 7(A) and 7(B) continued from yesterday's agenda, and I find that they're legally sufficient, and at the break I'm going to mm them over to our stenographer for recordkeeping. CHAIRMAN FIALA: Good. MR. WHITE: Thank you. CHAIRMAN FIALA: Thank you, Patrick. And David, would you please outline what we're doing here today, what the issue is. MR. SCHMITT: Madam Chair, can I start first -- CHAIRMAN FIALA: Sure. MR. SCHMITT: -- and then I'll -- so I can describe where we're going with this and then turn it over to the county attorney -- CHAIRMAN FIALA: Okay. MR. SCHMITT: -- for the legal description of what's going on, if I could, please. CHAIRMAN FIALA: Okay. MR. SCHMITT: All right. Good morning, Commissioners, for the record, I'm Joe Schmitt, the Administrator for community development and environmental services. I'm joined today by Ms. Susan Murray, who is to my left, the director of Department of Zoning and Land Development Review. And also with us today County Attorney David Weigel and Assistant County Attorney Patrick White. We're here to discuss, of course, the agenda items 7(A) and 7(B). I won't read those. They're already in the record. But I'd like to take a few minutes to clearly define the objectives of today's proceedings. After my brief introduction I'll be followed by Page 188 March 9 & 10, 2004 Mr. Weigel who will take a few moments to lay the legal framework for today's proceedings. CHAIRMAN FIALA: May I stop you for just a moment, Joe? MR. SCHMITT: Yes. CHAIRMAN FIALA: I've been told, because of fire concerns we have to keep everybody away from the doors, so if I might ask you to just bunch up a little bit or -- MR. MUDD: And I'd also like to mention to the folks that are in the audience that we have overflow seating in the hallway, and we also have the HR room over in -- over in Building B that has a whole room with television set with remote control so everybody can see it and hear it, and then you can come back up in order to speak or whatever you'd like to do. So for your comfort, those -- those other amenities are available. CHAIRMAN FIALA: And there are also a few scattered seats around in the audience in case anybody would like to -- to -- COMMISSIONER HALAS: Buddy up. CHAIRMAN FIALA: Yeah, buddy up. There you go. I'm sorry, Joe, excuse me. MR. SCHMITT: After a brief introduction -- after my introduction, Mr. Weigel will follow by describing the legal framework for today's proceedings, and I'll also ask that David describe -- because we've had, since this morning, a proposal to combine the two presentations into one presentation, so we'll need your concurrence. After David, Ms. Murray will present a brief synopsis of the request for interpretation and the subsequent related appeals that were submitted by the respective appellants. Each appellant will then be allowed to present their case, followed by any statements for the record by the attorneys representing Parcel J Joint Venture, the registered property owners of Page 189 March 9 & 1 O, 2004 the impacted properties. Then with your approval, we'll proceed to the public comments and registered speakers. And then we would like to close -- staff, we'd like close in summarizing the proceedings, summarizing the comments that were made, so that we can -- we can allow you to at least proceed to your vote. The objective of each of the appeals is to seek a reversal of the Collier County Board of Zoning Appeals of interpretations issued by the director of the Department of Zoning and Land Development Review. And just to clarify for today, you are sitting as the Board of Zoning Appeals and not the Board of County Commissioners. Without going into great details on appeals themselves, the underpinnings of the appeals claim that the director has incorrectly interpreted language as specified in section 7.04.03 of the Pelican -- Pelican Bay Planned Unit Development. The objective of the Board of County Commissioners, sitting today, again, as the Board of Zoning Appeals, is to review the current director's interpretation of the then existing facts and laws related to the approval of the subject Site Development Plan and to determine if any part of what staff did is inconsistent with the then existing Land Development Code regulation, which include the Pelican Bay PUD and the Growth Management Plan. CHAIRMAN FIALA: Could you read that one more time -- COMMISSIONER HALAS: Yes. CHAIRMAN FIALA: -- just to make sure we all understand. MR. SCHMITT: The objective of the Board of County Commissioners, sitting today as the Board of Zoning Appeals, is to review the current director's interpretation of the then existing facts and law related to the approval of the subject Site Development Plan, which is the Site Development Plan for Waterpark Place, actually Cap d'Antibes, and to determine if any part of what the staff did was Page 190 March 9 & 1 O, 2004 inconsistent with the then existing Land Development Code, which includes -- the Pelican Bay PUD is inclusive of the Land Development Code -- and the Growth Management Plan. The appeals process is not, and I stress, is not one in which the board or staff conducts a rereview of the already approved site plan. It is not one in which the board has the authority to revoke or amend the site plan. This hearing is focussed specifically on questions raised by the applicant and the decisions rendered by the director of Zoning and Land Development Review previously referred to as the Planning Services director. In sum, and I'll stress again, the approval or disapproval of the SDP is not the issue. The issue is whether the interpretation as rendered by the director regarding the then rules as applied during the SDP Amendment approval process was applied consistent with the then existing codes and regulations. The board is required to uphold the determination of the director unless you as a board determine that the official interpretation is not supported by substantial competent evidence or that the interpretation is somehow contrary to the Land Development Code. Should you decide to reject staff's interpretation, the staff, given your guidance and direction, would then be required to reevaluate how the now existing SDP -- and in addition, evaluate the impact of such rulings on previous decisions regarding the applications of the code on projects previously approved in the PUD. So with that, Madam Chair, I'll be followed by Mr. Weigel, the county attorney, who will take a few moments to lay out the framework for today's proceedings. David? MR. WEIGEL: Thank you, Joe. Commissioners and the interested public, I'm going to try -- CHAIRMAN FIALA: David, could you speak into the Page 191 March 9 & 1 O, 2004 microphone a little bit more, please. MR. WEIGEL: Yes, I'll get it closer here. CHAIRMAN FIALA: Thank you. MR. WEIGEL: I'm going to be foll -- as you see, I'm following Mr. Schmitt to talk to you about the legal considerations as you sit to make a -- an ultimate determination or two today, and some of this will follow right in line with what Mr. Schmitt has already told you. The official interpretation appeal hearing process, the appeal before you today, is quasi-judicial in nature and is subject to the provisions of Resolution 95-376, requiring proper disclosure of any commissioners' ex parte contacts or communications outside of the board meeting today, as -- and additionally, the procedural rules of the county Resolution 98-167 applying to ex parte hearings applies. For each appeal, of which there are two today, the ultimate issues to be determined are: A, whether the Planning Services director, now known as the Zoning and Land Development Review director, relied on competent substantial evidence to render the now challenged opinion. B, whether the written opinion rendered was consistent with the Land Development Code, which includes, by incorporation, the appropriate PUD ordinance, in this particular case the Pelican Bay PUD. Three, the appeal provisions of the LDC do not contemplate or provide for you, sitting as the Board of Zoning Appeals, revocation of any existing development approval. And because that is not the subject of either appeal, the approved Site Development Plan Amendment, known as SDPA-2001-AR-412 ought not be revoked as a part of this hearing. Number four, each appeal is limited to the Board of Zoning Appeal, this board's review of the record as originally submitted by that appellant, thus no new evidence should be considered by the Page 192 March 9 & 1 O, 2004 board as part of either appeal, beyond that originally submitted by each appellant as part of its filed written appeal. CHAIRMAN FIALA: Will you now be monitoring that, David, so that, in case we're -- in case new evidence is submitted, you would then call that to our attention? MR. WEIGEL: Absolutely. CHAIRMAN FIALA: Okay. Thank you. MR. WEIGEL: This is not a new trial. This is not a procedure in which new issues and new arguments are to be sprung upon this board or upon the staff in the response time that it has. There is an appeal process to a written interpretation. A written interpretation was created pursuant to the provisions of our Land Development Code where a question can be asked, an interpretation is provided, and then there is a provision that allows for appeal also with, in fact, time limitations as to procedure for submittal of question or complaint or issues related to that interpretation. CHAIRMAN FIALA: Thank you. MR. WEIGEL: So I repeat, this is not a new trial, and from that standpoint, the county attorney will endeavor mightily to keep this board within the parameters of its review process and also note to the board when and if, to the extent that we can so note, that there are issues or evidence purported to be brought before you which would be inappropriate under the procedure today. I will continue. Number five, although the appeal provisions do contemplate public testimony, the Board of Zoning Appeals, which is you, should only give consideration to sworn testimony that is, A, relevant to the issue being considered, and B, those facts which could not have been discovered by the time each appellant filed its appeal. I repeat that. COMMISSIONER HALAS: Yes. MR. WEIGEL: Related to those facts which could not have been Page 193 March 9 & 10, 2004 discovered by the time each appellant filed its appeal. I will submit right now, apart from my outline here, that those facts probably are very rare, about like hen's teeth in this case, because we're talking about an academic esoteric interpretation based upon facts that were in place over a considerable period of time and the application of our Land Development Code and a PUD, which are not amorphous and multi-changing on a daily basis. So that's a point well taken. Thus, new evidence should be measured as to whether the facts sought to be brought into the hearing could or could not have been discovered prior to submission of each appellant's written appeal. Number six, at the outset of the appeal process all procedural matters should be considered and decided to the maximum extent possible and ought to include, A, whether each appeal will be heard separately or together as a consolidated case, B, the order of presentation of each case, i.e., which party goes first, second, et cetera, and when the public testimony will be considered, C, what the time limits for testimony are to be -- are to be, and D, when rights of cross examine -- cross-examination are to be afforded each party. Continuing, I'll state this: Once the public hearing is closed, the Board of Zoning Appeals, meaning this board, may approve any motion by a simple majority vote. It does not require a super majority vote in today's proceedings. The board's action is to be limited to approving the director's opinion, meaning the county director of the Land Use Zoning Office -- the director's opinion, on each separate item raised by each appellant, or, again, the board's approval or determination should with specificity individually modify and reject one or more of the items only when the board finds that the director's determination of that item was not supported by substantial competent evidence or that the interpretation is contrary to the code. The specificity required is that which is sufficient to allow the Page 194 March 9 & 1 O, 2004 director to properly apply the challenged PUD or LDC provision. Again, to restate, the challenge and burden and role you have is to review the interpretation that has been written, provided, and to determine if it is sustainable, based upon competent substantial evidence, and that it follows the -- an interpretation and application of the Land Development Code and the PUD. And if you should determine that it does not, you will be charged with, as a board, specifying how it does not and how it should be interpreted. CHAIRMAN FIALA: Okay. Thank you, David. MR. WEIGEL: Okay. Now I see some questions coming to the chair or however you may wish to do. CHAIRMAN FIALA: Okay. COMMISSIONER HALAS: As the proceedings unfold, are you going to make sure that we follow the strict guidelines, and so that if information is brought forth, it's either relevant to the case or irrelevant to the case? MR. WEIGEL: We will attempt to do that to the extent practicable. COMMISSIONER HALAS: Okay. MR. WEIGEL: Again, as I've stated, it's hard to know what's going to be said before it's said, but as it is said, it may provide an opportunity for comment. My hope is that this will not resemble more closely a trial in court in the sense that we have -- in the sense that we have objections springing from the floor and things of that nature. And if that should occur, we will advise you how to proceed at that point in time. But it seems to me that that is not -- not the preferred procedure here and that we will be explaining in just a very few moments the order of presentation. And with that order of presentation will come the opportunity for any party of interest, appellant, stakeholder, landowner and/or the county, to instruct you, advise you, and make Page 195 March 9 & 1 O, 2004 requests of you. And again, as your attorneys, we will advise you as to the appropriateness of the request that's made. CHAIRMAN FIALA: Okay. Thank you. Now, just a couple other things, Commissioners. Number one, I think it would be more efficient if we would all hold our questions until after the presentations and the speakers, that way we can continue to move forward, number one. If you have any questions that are absolutely necessary at the time -- because we get carried away on questions. If they -- if they're absolutely necessary at the time, then we can ask them, otherwise we're going to hold them till the end of the presentation and the speakers, and then we can move forward. And now we -- we need to disclose our ex parte, starting with you -- MR. MUDD: Commissioner, if we can -- if we could just state what item we're going to do first, so if we can do -- CHAIRMAN FIALA: Certainly. We're going to start with -- MR. MUDD: 7(B) and that's -- CHAIRMAN FIALA: -- 7(B), as requested by Jim Carter, and then we will move on to 7(A). MR. MUDD: And that's ADA-2004-AR-5218, Pelican Bay Foundation, Inc, represented by Robert D. Pritt of Roetzel and Andress requesting an appeal of official interpretation INTP-2003-AR-4307 relating to the approval of SDPA-2001-AR-421 of the Cap d'Antibes condominium project, Waterpark Place, within the Pelican Bay DRI/PUD. This appeal is pursuant to Collier County Land Development Code, LDC section 1.6.6. CHAIRMAN FIALA: Now, we still have to declare our ex parte before we move on, okay. Yes? MR. WEIGEL: That's exactly right. It would be appropriate at this time, Madam Chairman and the board, to provide your ex parte Page 196 March 9 & 1 O, 2004 communications relating to this appeal. And additionally, for purposes of procedure, we may wish to discuss and tentatively agree upon the orders of presentation and purported time limitations of presentation. I note from prior -- the occasional prior hearings that we have had of this kind, for the record, that, in fact, the stakeholder, landowner whose property is involved, has traditionally had the opportunity to participate essentially equally in time and ability to address the board as the appellants, and would note that for you. Additionally, we'll want to -- I'm going to suggest that, in fact, after I finish with you on some of these procedural matters, that Susan Murray, on behalf of the county, would have the opportunity to provide kind of the frontispiece, the initial discussion of the executive summary and information that is provided to you on the appeal, and then afford the opportunity to the appellant, and then afford the opportunity to the land -- stakeholder, landowner, their representatives, and then opportunity to the county for response and rebuttal, if need be. Additionally, we need to determine, to the extent practicable, the amount of time that will be allowed for presentation by the appellant and the landowner. The executive summary discussion, which Susan Murray will be providing, I can fairly assure you will be short, limited to a period of, perhaps, 10 minutes or maybe less. In regard to the appellant and the landowner representatives, I would suggest that they have the opportunity, looking toward due process and communication, the desires, to have 20 minutes or something beyond 20 minutes but not less than 20 minutes. And again, Patrick may have some additional comment for you in that regard if you have a question. You may want to go more than that. And so those are the things for you to consider in regard to Page 197 March 9 & 1 O, 2004 procedure so that everyone knows pretty much the ground rule as we go forward. COMMISSIONER HALAS: I have one question. CHAIRMAN FIALA: Yes, Commissioner Halas. COMMISSIONER HALAS: Do you think that we ought to have a discussion in regards to whether we should combine both of these or do we want to keep them separate? MR. WEIGEL: Well, you're welcome to have that discussion. I note that on the record-- COMMISSIONER HALAS: Because basically it covers the same two -- the same item on both areas. MR. WEIGEL: Well, that's -- that may be one person's opinion, but not all persons' opinions in that regard. COMMISSIONER HALAS: Okay. MR. WEIGEL: I do note that on the record at the board meeting yesterday, continued over to today's meeting, that the board had indicated, upon request, that 7(B) would be heard first, and that was sort of the clarion call that went out. If-- if there is a desire for the board to consolidate, I would respectfully ask that both the appellant and the landowner representative have opportunity to express their desire pro or con in that regard before the board would make a decision, if there is that desire of the board to even consider to consolidate. CHAIRMAN FIALA: Board members, it might be -- being that this is such a legal matter, maybe it would be better to take each one separately just so that we address each issue. COMMISSIONER HALAS: Might well want to have this for open discussion so everyone has an input into this. CHAIRMAN FIALA: Yes, right. That way then we haven't -- we haven't turned our back on anybody. If that would be okay? Yes, sir? Page 198 March 9 & 10, 2004 MR. VOLPE: Madam Chair, could we be heard on the -- CHAIRMAN FIALA: No, would you let us do this. Thank you. Go ahead. MR. MUDD: Commissioner, I need to read 7(B), which will be the first item. What I read before was 7(A). CHAIRMAN FIALA: Oh, okay. MR. MUDD: So I need to have a clarification -- so 7(B), this item to be heard after 7(A) on March 10th, 2004. This item requires that all participants be sworn in and ex parte disclosure be provided by commission members. It's ADA-2003-AR-4933, Michael J. Volpe, of Robins, Kaplan, Miller, and Ciresi, LLP, representing Pelican Bay Property Owners Association requesting an appeal to official interpretation INTP-2003-AR-4306 relative to the approval of SDPA-2001-AR-412, Waterpark Place at Pelican Bay. I'm sorry for any confusion that I caused the first time I read the wrong one. COMMISSIONER HALAS: I would say the general consensus of the board is that we start with 7(B) then. CHAIRMAN FIALA: Yes. COMMISSIONER HALAS: Okay. CHAIRMAN FIALA: And you asked about time constraints. And is our-- is our practice and we're-- have -- we have started to adhere to it this year, each -- each presenter will have 20 minutes, not each speaker, but the staff, the appellant -- appellant, and there was some -- and the property owner. So each one will have 20 minutes to present their-- their case. I realize our staff might not need 20 minutes, but you have 20 minutes, so that we will be fair to everyone. And we still have not disclosed our ex parte. So we'll start again. Commissioner Halas? Page 199 March 9 & 1 O, 2004 COMMISSIONER HALAS: Okay. I started off with December, 2002, with Ted Raia, had a meeting with him at that point in time. I had another meeting with him in January. David and Mr. Ramiro, I had a meeting with them, also in March of last year. Ted Raia again in February. Joe Schmitt, Susan Murray numerous times, and had a meeting with Aubrey Ferrero (phonetic) in December of 2003, and had many meetings with the county attorney's staff on numerous times in regards to this issue. And that's -- and I also have other ex parte over here of all the emails and of all the correspondence that I received through the mail. CHAIRMAN FIALA: Thank you. Commissioner Coletta? COMMISSIONER COLETTA: Yeah, thank you. I'm in possession of a letter dated September 29th, from Collier County government to Mr. Volpe, and in that they cover many details of what they were going to be covering. I'm also in possession of email from Mr. Hardt and -- to Joe Schmitt, and have used that for a reference in what I have, and all other emails and phone calls can be found within my file. CHAIRMAN FIALA: Thank you. Commissioner Henning? COMMISSIONER HENNING: The -- I got a pamphlet on Pelican Bay, a detailed site plan that's in our packet, but that one's just colored. Dr. Raia came before the board under public petition in the past. I have a packet from Robin (sic), Kaplan, Miller, and Ciresi, and another correspondence from that law firm. Talked to Jim Carter over the weekend. Let's see, an email from "pappyd" in florida, aol.com (sic), Michael Lissack, G.H. Werner, Joe Schmitt, other staff members, a Ms. Fogg, more correspondence from the law firm of Robin (sic), Kaplan, Miller, and Ciresi, Roetzel Anderson (sic), Michael Volpe, Page 200 March 9 & 1 O, 2004 Fred Hardt, Alice Potter, and a correspondence from the County Attorney's office. CHAIRMAN FIALA: Thank you. Commissioner Coyle? COMMISSIONER COYLE: I have spoken with Mr. Carter and Mr. Pritt. I've met with Mr. Raia, Mr. Strain, Mr. Yovanovich. I have also met with staff, Mr. White, Mr. Weigel, Marjorie Student from our legal department, Joe Schmitt and Mrs. Murray, and, of course, the county manager, Jim Mudd. I have a file of correspondence and email that is available for public review if anybody's interested in seeing those. CHAIRMAN FIALA: Thank you. I have also met with County Attorney Patrick White, David Weigel. I've met with Mark Strain, Rich Yovanovich, Susan Murray, Marjorie Student, Joe Schmitt. I've spoken with our county manager, Jim Mudd. I don't know that I've met with Mr. Pritt. I don't think so. I didn't think you'd been in my office nor Mr. Volpe nor Mr. Carter. But I do have much correspondence here, and if you'd like, I can go through them, but they just more or less echo what Mr. -- what Commissioner Henning's just mentioned, and they're all here on file, plus a correspondence from Ross Obley and -- that he hadn't mentioned, and I've met with Mr. Raia. He came into my office. And I believe that that's it. I have everything written down here in my file for review. Oh, and I got the same maps and brochures. Thank you. Now, we need to swear in the audience. Anybody who is going to be presenting or wanting to speak needs to be sworn in. Speakers too. (All speakers were duly sworn.) MR. VOLPE: Madam Chairman, may we have the opportunity to just comment on procedures that may assist the board before it Page 201 March 9 & 10, 2004 makes its decision-- CHAIRMAN FIALA: Sure. MR. VOLPE: -- Not a substantive. The problem, of course -- for the record, my name is Michael Volpe. I'm with the law firm of Robins, Kaplan, Miller, and Ciresi. We are one of the appellants. There are two separate appeals. Mr. Pritt, on behalf of the Pelican Bay Foundation, represents the second appellant. We've discussed and we would like for the board to hear both appeals at the same time and consolidate the record. We would expect though at the conclusion of the public hearing that the board will have to make specific findings as it relates to each of the separate official interpretations that have been rendered by your staff. We don't want to have us present our appeal and whatever might be presented by your staff and then have Mr. Pritt present his appeal. So with the permission of the board, we would just consolidate the record. CHAIRMAN FIALA: Absolutely. That would make it so much easier for all of us. MR. VOLPE: The second-- CHAIRMAN FIALA: Is that okay with the five board members? COMMISSIONER HALAS: Yes. MR. WEIGEL: Well, Madam Chairman-- CHAIRMAN FIALA: Yes, sir. MR. WEIGEL: Madam Chairman. I think it's appropriate for you to have the discussion, and I appreciate Mr. Volpe having the opp -- and should have, as he is -- the opportunity to bring this to your attention. In like manner, I would offer to the representative of the landowner to also make any comment or request of you in regard to procedure. So that, again, as we start out and get into the operational Page 202 March 9 & 1 O, 2004 aspects of this hearing, that the questions of procedure have been answered earlier rather than later and don't come up midstream here. Again, I note -- and it's at the board's prerogative at the request to make its determinations as to how to go forward, either consolidated or bifurcated, separate hearings -- is that, in fact, these happen to be scheduled the same day, but they do have a different life and genesis. They -- they started apart and -- but they happen to have some similarity and certainly relation to the same property of interest. But they could very easily, of course, have been scheduled for different days. They happened to be this day -- and on this day. And so to the extent that there is facility and expedience that's -- that you may determine toward your procedural determinations here, that's -- that's an appropriate thing to consider. And if Mr. Volpe has any further comment, I would welcome that he make that comment. He has made his request, and I think you're considering it on the record right now. I would also ask then that if there is any comment from the landowner representative, that they have the opportunity to also make any request or notation to you at this time. MR. VOLPE: Madam Chairman? CHAIRMAN FIALA: Yes. MR. VOLPE: I just -- you know, we want to get past the procedure so we can get to the substantive part of our agenda. In this instance, certainly you will take public input from the stakeholder, but they're not parties to this appeal. The parties to this appeal are the appellants, the Pelican Bay Property Owners' Association and the Pelican Bay Foundation. Your county attorney has suggested, in copy of his memorandum that I received late yesterday, that we actually consolidate the hearings. So we're the appellants. We're the people. So we would -- we Page 203 March 9 & 1 O, 2004 think it will expedite the process for you and not prejudice the stakeholder in any way. Of course, you're going to hear their comments. But that would be our request, because it -- frankly, in terms of time sensitive, the testimony is going to be repetitive. There are different issues, but -- and the other part I might comment is that there is a lot of public interest, of course, in this appeal, but what we've tried to do in being sensitive, the board was kind enough to set aside a full day for these matters because we believe they are important and to give us a full and fair opportunity to be heard. The point there is, that we've orchestrated our presentation so that you're not going to have 122 people speaking for three minutes. What you're going to have is yours truly who's going to take, hopefully, somewhere in the neighborhood of maybe 20 minutes; a spokesperson for the Pelican Bay Property Owners' Association, Dr. Raia; one other person; and then there may be two or three people from the public who may be speaking. So we don't anticipate, from our perspective, that we're going to take a lot of time. So in that regard -- although, Madam Chairman, you had indicated that you're going to limit us to three minutes. Normally it's five-- CHAIRMAN FIALA: Well, not you. MR. VOLPE: No, I understand. But normally -- I mean, what we filled out said that we would be entitled to five minutes, and I assume that what you're reacting to -- and I'm -- only an assumption, that you were anticipating we were going to have lots of people and you wanted to keep everything within a seven-hour time frame. I'm telling you, we're not going to have that problem, and so we would respectfully request that, subject to the chair's saying we've overstayed our welcome, that you kind of have a little bit of flexibility in terms of our presentation, because I have -- and so has Mr. Pritt -- Page 204 March 9 & 1 O, 2004 instructed everyone, short, concise and to the point. CHAIRMAN FIALA: Yes, and I appreciate that. What my -- my rule has been, since I started as chair, if we have 10 speakers or over, we have three minutes. If we have under 10 speakers, then we have five minutes. And so -- and if we have -- I will ask as we go along how many speakers we have. Commissioner Coyle has been waiting on deck to ask a question. COMMISSIONER COYLE: Not so much a question but, perhaps, an observation. I think the terms combining or bifurcating this discussion are a little confusing. Each petition has its own representative. And I will presume that you and Mr. Pritt will be making independent presentations and not combining the two of them, which is perfectly fine. I presume that the people who will speak on behalf of each of your presentations, in support of your presentations, will also speak primarily about your petition and not confuse the two. This is going to be difficult enough for the commissioners to separate in their minds the issues on which we must make a decision. So I'm somewhat confused as to what the request is to consolidate. We can't consolidate the vote. We can't consolidate your presentations. We can't consolidate the presentations of individuals who support your presentation. So -- so I'd like for you to clarify for me what it is you want to have consolidated, and then I'd like to propose a solution to the other issue about the time. As the chair has indicated, if you have just a few -- few speakers, five minutes probably would be acceptable. But what happens if there are 100 additional speakers who wish to speak that -- over which have you no control? I think we must then apply the three-minute rule to those speakers under those circumstances. So that would be my Page 205 March 9 & 10, 2004 suggestion. MR. VOLPE: Commissioner Coyle, the goal here -- and your county attorney in a private -- not-- in a meeting with the county attorney, and then in his memo yesterday, he indicated that it would be one public hearing, a consolidated record, so at the end of the day there would be -- all of what public testimony is heard by the board today would be a part of the same record. At the conclusion of the hearing, there are separate opinions, and then you'll have to go through and say we reject, we modify, we agree each one of those. So you -- a consolidated hearing, but then separate findings on the separate appeals. Our presentation, you'll see the number of registered speakers. I don't think you're going to be surprised by 100 people. And the other is, although they are separate appeals, there are -- there are some overlaps. We're dealing with the same provisions of the Land Development Code. We're dealing with the same provisions of the PUD. We've come at it a little bit differently. I've raised a couple of questions that they've not raised in the interpretation. So I don't think there'll be any confusion. The residents who are here to speak or the public that's here to speak, you know, their comments are going to be generic in nature that will address that, so it's not going to be specifically as to, this only relates to. What we're involved in, as your staff has indicated, we're talking about a couple of issues, interpretation of provisions of the Land Development Code and the PUD for Pelican Bay. That's one of the issues. And the comments from the public will relate to those. So I hope there would be no confusion, and their statements would be appropriate for either appeal. Is that responsive to your question, Commissioner Coyle? COMMISSIONER COYLE: Yes, I think it is. I just don't -- I Page 206 March 9 & 10, 2004 don't see the distinction from what we had originally planned. Certainly the proceedings of this meeting will be considered in total and will be part of an overall record. MR. VOLPE: Let me -- let me just suggest to you what we -- what we would prefer not have is for myself, as the attorney representing the appellant, Pelican Bay Property Owners' Association, present my appeal on behalf of my client, close the public hearing, have the board vote on those an&say, fine. Now we have ruled on this question of whether cluster buildings and cluster development should be read together, and now I turn the dais over to Mr. Pritt for his presentation. COMMISSIONER COYLE: Yeah. MR. VOLPE: I mean, that's what we're trying to avoid. COMMISSIONER COYLE: Okay. That's-- MR. VOLPE: We want to have you look at those issues which are the same and those that may be a little different, but reserve your findings until you've heard everything from everyone. COMMISSIONER COYLE: Okay. So if that's the crux of the matter, I would agree with you. MR. VOLPE: That is the crux of the matter -- COMMISSIONER COYLE: Okay. MR. VOLPE: -- Commissioner Coyle. We just don't -- I mean, it just -- it will render the second part of this whole proceeding kind of academic in certain respects. COMMISSIONER COYLE: Okay. MR. PRITT: May I add one thing, Madam Chair? This is Robert Pritt, Roetzel and Andress -- rhymes with pretzel -- Roetzel and Andress law firm here on behalf of the Pelican Bay Foundation. Yes, and the other practical aspect of all of this is that we have at least one, and maybe a couple, of witnesses who would speak on both matters. It just seems to be very inefficient to have them speak on one Page 207 March 9 & 10, 2004 -- on the one petition and sit down, and then have to get up again and speak on the other petition. So we don't want to be forced to do that. So having a common record would take care of that, and we're fine with that. And would look forward to it. COMMISSIONER COYLE: Would you specify when you have a witness who's going to do that? MR. PRITT: Yes, we could do that, sure. COMMISSIONER HALAS: Let's do that. CHAIRMAN FIALA: Commissioner Henning? COMMISSIONER HENNING: Not to twist this issue into a pretzel -- the -- this item was advertised as two separate things on the agenda and there are two separate things that we're addressing. And I agree, there's similarity and things that will be repetitive, but like I said, I'm here all day. To me, I'd rather hear the items separate. MR. VOLPE: Commissioner Henning, I'd just analogize it to the situation where you've got a rezone petition and a conditional use petition at the same time relating to the same piece of property. You hold one public hearing on both and then you make separate findings as it relates to the rezone and the conditional use. Really no different than the procedures than would normally be followed. CHAIRMAN FIALA: Okay. Any further comments on this? Yes, sir. MR. CRITCHLOW: Madam Chairman and members of the board, my name is Richard Critchlow. I'm here on behalf of Parcel J, the affected property owner. We have concerns about any effort on the part of both of the appellants to combine the record. The primary reason for that is that we believe that the appeal which was filed in this case by the Pelican Bay Property Owners' Association is untimely and a nullity. The rules specifically provide under 1.6.6 that the appeal shall be filed, it's mandatory, within 30 days of the Letter of Interpretation. Page 208 March 9 & 1 O, 2004 The rules further provide that any evidence or all of the issues to be raised by the appeal shall be set forth in the Notice of Appeal within 30 days. The rule further provides that and any pertinent evidence that is to be considered as of the appeal shall be filed within 30 days-- CHAIRMAN FIALA: Yes, sir. But we're just talking about what order. MR. CRITCHLOW: And what I -- the point of this is that there's been some suggestion that by the combination of the two records that are going to be presented before this panel, that there could be an end run around our concern that the entirety of the record, which was -- which was submitted to this board well beyond the time period provided for filing a Notice of Appeal will somehow be given credibility when it otherwise is absolutely inadmissible by reason of a clear reading of the rules. This record, on behalf of the Pelican Bay Property Owners' Association, was not filed until almost 90 days after the Letter of Interpretation. CHAIRMAN FIALA: Yes, sir. But -- we have -- you're not addressing what we're trying -- I'd like to hear from our county manager, please. MR. CRITCHLOW: .Right. As far as -- CHAIRMAN FIALA: County attorney, please. MR. CRITCHLOW: Okay. If I may say on the procedure, as far as having one vote at the end of the day, that makes sense. My concern is limited to the procedural issue of somehow combining the records of both of the appellants, which will cure the deficiency which we believe exists in the Pelican Bay Property Owners' Association, and we not believe that that would be appropriate. That's my procedural concern and my due process concern. Page 209 March 9 & 1 O, 2004 CHAIRMAN FIALA: Commissioner Coyle? COMMISSIONER COYLE: It's my understanding based upon Mr. Volpe's description at the end that they will have independent presentations and that we will then, after both presentations are made, we will then have independent votes on each of the petitions. The term combining the record is still confusing, I think. But if we have independent presentations, we're not going to be combining them into one petition, nor will we be combining them into one petition if we have two different votes on those petitions. So it appears to me from a legal standpoint, and the county manager can correct -- or county attorney -- MR. MUDD: County Attorney. COMMISSIONER COYLE: -- can correct me here, that your concerns would certainly be taken into consideration with the separate votes on the petitions. And that way if you wish to appeal our vote for some reason, such as the untimely submittal of the petition, then you'd still be entitled to do. MR. CRITCHLOW: With that understanding, we would agree with you, Commissioner. COMMISSIONER COYLE: And that's my understanding of your -- your description of what you wanted to do; is that correct? MR. VOLPE: Yes, sir. COMMISSIONER COYLE: That you don't want us to lump them together into a single vote. You want us to have separate votes and you want to present your cases independently, but there will be some overlap because the issues overlap to some degree -- MR. VOLPE: Right. COMMISSIONER COYLE: -- but they will still be independent petitions. MR. VOLPE: Yeah, they don't lose that character, that's correct, because there are, Commissioner Coyle, some issues that we have Page 210 March 9 & 1 O, 2004 raised on our -- in our request that were not raised by -- and vice versa. COMMISSIONER COYLE: Okay. CHAIRMAN FIALA: Okay, fine. Commissioner Coletta? COMMISSIONER COLETTA: Yes. I'm still waiting to hear from our county attorney, Mr. Weigel. MR. WEIGEL: I'd rather you talk with the County Manager on some of these. But be that as it may, I can deflect slightly, and I'm going to have Assistant County Attorney Patrick White comment in regard to Mr. Volpe's comments of going forward, but also the property owners' representative's comments about timing and admissibility of the -- of the material that has come forward. Patrick? MR. WHITE: Assistant County Attorney Patrick White. Commissioners, the property owners have raised a question as to whether the appeal submitted by Mr. Volpe was, quote, timely. And that has, from our office's perspective at least, two components to it that need to be considered. One is the technical compliance with the rule. The rule in 1.6.6 that you've been provided copies of from our office's memorandum, specifies that there's 30 days after the appeal is essentially rendered -- or, excuse me, that the interpretation's rendered, that there's a 30-day window to file all of the written materials. And it is factually correct and technically correct for the property owners' attorneys to say that the time frame by which all of the materials that are in your appeal package were submitted to you was beyond that 30-day window. There was essentially an initial letter, Notice of Appeal, if you want to call it that, and some preliminary documents provided within the 30 days, and that was supplemented at the 90-day period of time. So technically, the bulk of the materials provided to you fall outside Page 211 March 9 & 10, 2004 the 30-day window. The second part of the analysis, I think, has to do with how much prejudice would be suffered by those property owners because of the untimeliness of the appeal by Mr. Volpe. That is something that I'm going to leave to you to determine as to whether you're going to ultimately hear his appeal or not. I think that the legal issues still remain. The objection has been raised by the property owner and will be part of this record when it's considered by a reviewing court. So there's a balancing that has to occur between technical compliance with the rule and whether there's any actual prejudice that is suffered by the property owner because of the delay. And some of the things I think that are relevant in finding the balance here would be how much time was afforded to the property owner to respond to that late submittal. In other words, were they given enough time to actually understand what the issues were that were raised by the appeal and be able to respond to them appropriately today. I want to caution you that I don't want to create a gray zone here because of the more recent submittals, and including articles that may attempt to come in today, where I think that there's no doubt that there's a technical noncompliance with the 30-day window, certainly there's true. But more so, I think that it's a question that we now start to look to that new evidence rule that Mr. Weigel mentioned earlier that there's a strong concern on our part that there might be prejudice suffered by the property owners as a result of these late submittals, along with the fact that they're technically not complying with bringing the materials for your review within 30 days. And I think that adequately should at least get you to the point of a discussion. CHAIRMAN FIALA: Go ahead. COMMISSIONER COYLE: I'm reluctant to prolong this, but this raises a new issue. Are we the ones who are supposed to make a Page 212 March 9 & 1 O, 2004 ruling on the timeliness of this submittal? Or are -- is that something that has to be done outside these proceedings in a court of law? MR. WHITE: Well, I believe that you can certainly make that ruling. And let's assume for the sake of argument that you rule that there is a technical default of the -- of the time requirement, but that you don't believe that there was sufficient prejudice or any prejudice suffered by the property owner, and that you want to hear it regardless. There's still a remedy afforded to the property owner in any subsequent litigation so long as their objection has been put on the record and they've been fully able to explain to you why it is they think that it's inappropriate. And I'm not sure that Mr. Critchlow has fully done that yet or not. He's only, at least initially, advised you of his concern as the property owners' representative that there is this technical noncompliance and that he believes that it should not move forward. Although we don't want to turn these into courtlike proceedings, they are quasi-judicial. At times -- and at times there are going to be legal issues that ultimately you, the Board of Zoning Appeals, have to act to decide on some of these issues. COMMISSIONER COYLE: I presume your advice then to us is to hear the appeals and then make any decisions concerning the timeliness of an appeal at the point in time when we are to vote on that issue? Is that essentially what you're saying? MR. WEIGEL: No, it's not quite that essential. What it is, is you do have the decision, responsibility to determine upon what you may determine to be a valid question as to whether evidence received beyond the -- when we say technical time frame, we're talking about the time frame that exists by our own law, the LDC, for these kinds of appeals. And so you're faced with the, once again, difficult question as to the admissibility for purposes, call it the broader purpose of hearing Page 213 March 9 & 1 O, 2004 information, that -- that has not met the time frame requirement, which an argument could be made, is a substantive or jurisdictional requirement for you to hear the material that has -- that was not tendered within the -- within the time frame provided by law. If you determine -- as Patrick has indicated, if you determine that in the broader picture an objection has been noted for the record and you wish to hear it anyway and then make a decision on that either at the end of your contemplating process today or not -- not make a decision relating to, call it the -- not considering this. It's hard not to consider information once you've heard it. CHAIRMAN FIALA: Right. COMMISSIONER COYLE: Let me ask another question and hopefully bring this to a conclusion. MR. WEIGEL: Okay. COMMISSIONER COYLE: During the course of these proceedings, can you alert us to any information which was presented outside the required time frames so that we at least understand that there might be some dispute about the consideration of that information? MR. WEIGEL: That's a very good question. I think that may assist the process, and we will do so, and I would expect that the parties of interest here, when I say party, I mean the people that are here of interest, meaning the landowner representative as well -- as well as the appellants, will take advantage of that opportunity to indicate what they think are improprieties of the record that's being placed before you. MR. VOLPE: Madam Chairman? COMMISSIONER HALAS: That was the question that I asked originally. Are you going to alert us to what's relevant or irrelevant to this (sic) proceedings? MR. WEIGEL: Well, as you can tell, the alert bell went off Page 214 March 9 & 10, 2004 rather early here. COMMISSIONER HALAS: Well, we've got -- we've got to get the ground rules established here. MR. WEIGEL: Right. COMMISSIONER HALAS: And we need your guidance. We're not judges by the court of law, so we need some guidance as much as possible from our legal staff here also. MR. WEIGEL: Yes, sir. MR. VOLPE: Madam Chairman, we are trying to determine in terms of a consolidated record -- Mr. Critchlow's raised a new argument, raised an issue about timeliness of the appeal. I mean, I think he's reserved that right. We would ask that we could proceed with the hearing. And I would just simply, for the record, state that the Notice of Appeal was timely filed from the response to our request for an interpretation. It was filed and served within 30 days -- CHAIRMAN FIALA: Okay. Mr. Volpe -- MR. VOLPE: -- period. CHAIRMAN FIALA: -- what we're going to do is we're going to hear these two subjects together, B and A. We'll hear from you first for 20 minutes, then we'll hear from Mr. Pritt for 20 minutes. We'll hear from staff, and we'll hear from the -- from the landowner. Each one has 20 minutes. If-- if there are more than 10 speakers, they will be limited to three minutes. How many speakers do we have? MS. FILSON: For Waterpark, Madam Chairman, we have four, for the foundation I have six, for Pelican Bay in general, I have 16. CHAIRMAN FIALA: Okay. So-- MS. FILSON: I think some of those speakers include the attorneys. CHAIRMAN FIALA: I see. So shall we -- Commissioners, I'm Page 215 March 9 & 1 O, 2004 tending to think that we'll give the first 10 speakers -- and we'll let the petitioners decide which 10 speakers they are -- to have five minutes each rather than limit everybody to three minutes, because I'm sure they have some things in mind. After that everybody will be limited to three minutes, and we're going -- I'm going to be rather firm in keeping this on course and directed. We've discussed this for an hour now. We're done discussing it. And this is how we will move forward. Okay. MR. CRITCHLOW: Madam Chair, may I have one procedure? CHAIRMAN FIALA: Sir, we're done, we're done. MR. CRITCHLOW: It deals with the amount of time that we have. CHAIRMAN FIALA: No, sir, we're done. Okay. So let's move forward then. We have everybody sworn in, we, have our ex parte's declared, and we will begin. At 10:30 we will break for our stenographers for 10 minutes, then we will be back. Thank you. Mr. Volpe? MR. WEIGEL: No, Ms. Murray. CHAIRMAN FIALA: Oh, okay. Very good. MS. MURRAY: Good morning. Susan Murray. I'm the director of the Department of Zoning and Land Development Review. Madam Chair, I'm probably going to need 20 minutes, but not all at once, so I'm going to try to keep my first overview to 10, and then I do need to follow up after the last speaker with respect to the appellants and the property owners. CHAIRMAN FIALA: Sure. However you want your 20 minutes. MS. MURRAY: Thank you very much. Item #7B Page 216 March 9 & 1 O, 2004 ADA-2003-AR-4933, MICHAEL J. VOLPE OF ROBINS, KAPLAN, MILLER AND CIRESI, LLP, REPRESENTING PELICAN BAY PROPERTY OWNERS ASSOCIATION, REQUESTING AN APPEAL TO OFFICIAL INTERPRETATION INTP-2003-AR-4306 RELATIVE TO THE APPROVAL OF SDPA-2001-AR-412, WATERPARK PIJACF, AT PEIJCAN BAY- DISMISSED This is ADA-2003-AR-4933, a request from an appeal from an official interpretation which was filed on behalf of the Pelican Bay Property Owners' Association. I'm going to make a brief introductory statement. I'm going to call your attention to some exhibits that I extracted from your executive summary, that will assist you throughout this hearing. I'm going to give you a brief summary of important dates and a brief overview of the request for interpretation. I'm going to try to summarize as much as I possibly can the interpretation. It is lengthy, and I will try keep it brief, knowing that I will able to follow up later with some more detailed facts after we hear from the appellants. The interpretation filed relevant -- was filed relevant to the approval of an original Site Development Plan within the Pelican Bay PUD. The name of that Site Development Plan is Waterpark Place. It was approved in 1990. And then there was a subsequent amendment to that plan, which is -- was approved by staff in 2001. As you know, Site Development Plans are approved administratively. There is no public hearing required. And your staff has the authority to approve those as submitted. I'm going to go ahead and introduce you to the exhibits so you can use them throughout your hearing and just give you a brief overview of their content so that you can refer back to them when the speakers are speaking to you. Page 217 March 9 & 1 O, 2004 Okay. The first exhibit labeled Page 1 shows the original Site Development Plan approved in 1990, known as Waterpark Place, and let me just point out some important features here. This is colored for your ease of use. As you'll note, the original Site Development Plan was comprised of one parcel, and that is outlined in blue. Within this parcel of land, the original Site Development Plan was approved for four structures, and they are highlighted in yellow. Underneath those four structures I have just initialed the names of the structures because only two are developed at this time. The first one is the St. Pierre. Over here there's a small SP underneath. You're going to hear these names throughout the hearing, I'm sure. The second is the St. Laurent. And I've labeled the two buildings here as F1 and F2, meaning future buildings. Again, this was the original Site Development Plan. The structures in green are parking structures. The highlights in orange just give you an idea of the access, site circulation. The second page is actually the amended Site Development Plan. Again, the outline of the parcel in blue. The outlines in pink indicate that the original parcel was fractionalized into tracts, and those pink boundaries more or less represent the tracts that it was fractionalized in. And I say that because tracts C and D, which are right in this area are combined, so the line doesn't show up on this drawing. Let me go ahead and orient you again. Again, the existing St. Pierre with the parking structure, the existing St. Laurent, with their parking structure, and the proposed Cap d'Antibes. Another piece of information you're going to need to know about is the fact that the Waterpark Place at Pelican Bay, again, as I mentioned, was originally platted as a -- one tract, and the Site Development Plan that came in as the original Site Development Plan came in utilizing that entire tract with four different buildings, but it Page 218 March 9 & 1 O, 2004 later was replatted. And these pink lines indicate the tract boundaries of the replat. And the tracts are all labeled on there. It's pretty self-explanatory. And then this is just the same as the original one I showed you with respect to the amended site plan. It shows the amended site plan with your tract boundaries and the tracts labeled. This is almost a duplicate of what I showed you. The appeal filed, both appeals really, but the one I'm talking -- speaking to right now, claims that the director incorrectly interpreted section 7.04.03 of the Pelican Bay PUD, and that's another item that's going to be discussed quite a bit. I have that as an exhibit. It was placed in your packet. 7.04.03 is basically the minimum yard requirements for this group of housing. It's known as Group 4 in the Pelican Bay PUD. Specifically, the appeal states that the measurement of the minimum yards and the point at which these measurements were taken, meaning the parcel, overall parcel, versus the tract boundaries, the appellant claims that because the parcel was replatted that the minimum yard should be measured from the tract boundaries and not the parcel boundaries. So your tract boundaries were the internal pink lines I showed you and your parcel boundary was the external blue line. It's the director's opinion that subsection 7.04.03 of the Pelican Bay PUD specifically states that minimum yards may be measured from tract or development parcel lines and that the measurement taken from the parcel lines by previous staff was appropriate and lawful. Again, when I follow up, I'm going to expand on that a little bit, after the appellants speak. And I am diving into basically the heart of the appeal. I just wanted to give you a little bit of overview in that there was five or six questions asked with this first appeal, so there are responses to each one, and I'm going to just briefly touch on each one. Page 219 March 9 & 1 O, 2004 In the second request, the appellant asked whether or not the provisions of section 7.04.03(C) of the Pelican Bay PUD are limited to the distance between principal structures as provided in 7.04.03(B), or does the administrative authority also allow staff to vary the minimum side yard setbacks as provided in that section with respect to adjoining properties not depicted on the site plan. The word distances in that provision is intended to apply to either or both of the requirements set forth in Paragraphs A and B, depending on the facts that exist. And under the facts that existed, or that were presented by the referenced Site Development Plan amendment and Site Development Plan, both the minimum yard requirements and the building separation distances may be reduced so long as the further condition of Paragraph C was met. Paragraph C stated that in the case of clustered buildings with a common architectural theme, these distances, meaning the distances between structures and the distance from tract or development parcel lines, provided the clustered buildings had a common architectural theme, the distances could be less, and that determination would be made during the Site Development Plan process. And that is stated in Item C, which says, that provided a Site Development Plan is approved in accordance with section 2.05 of the PUD. There is a second part to the second request, and it asks that if the provisions of section 7.04.03 of the PUD, again, which are the minimum yard requirements of the -- of this group of housing, and the provisions of section 2.6.27 of the Land Development Code -- 2.6.27 are the clustering provisions which are outlined in our Land Development Code, and I have included those in your packet as well -- should they be read together -- this is the question being asked again -- should they be read together to require a petitioner who requests an exception variance or an amendment to the development standards set forth in 7.04, those being the yard requirements, to use the conditional Page 220 March 9 & 10, 2004 use process to satisfy the development standards set forth in 7 -- or criteria set forth later in that section. So what they are basically asking is, if you wish to vary or deviate from the development standards set forth in the PUD, should you be required to do that through the conditional use process? Then is asked, if not, if you're not required to do that, what are the objective standards and criteria to be used by the director to determine whether a petitioner-- excuse me -- is entitled to an exception variance and/or amendment to the development standards set forth in that section for clustered buildings with a common architectural theme. And then lastly is asked, does anyone agree by the decision of the director granting or denying an exception or variance or amendment to the development standards have the right to take an appeal from this decision. It was my opinion as the director that the provisions of section 7.04.03 of the Pelican Bay PUD and section 2.6.27 of the LDC, that being the clustering provisions, were never intended to be applied together, thus the petitioner is not required to submit a Site Development Plan with a conditional use petition in order to reduce the minimum yard requirements pursuant to section 7.04.03(C) of the PUD. At this point I also need to make a correction on the record, because the interpretation that was rendered had some misinformation in that, and unfortunately we didn't catch that until after you had received the appeal. And we had stated that, in response to this question, that the Group 4 areas or Group 4 uses of the PUD only permitted multi-family and did not permit single-family, and that is incorrect. They permit both single-family and multi-family. MR. WHITE: That's as to the PUD? Page 221 March 9 & 1 O, 2004 MS. MURRAY: That is as to the PUD. MR. WHITE: And as to the SDP, though, I think there's a distinction. I think Ms. Murray would agree with that. MS. MURRAY: Yes. So I wanted to put that -- make that correction on the record. That is going to become important. That does not change our opinion or my opinion by any means, but I did want to go ahead and put that on the record. In response to the second question for clust -- it's my opinion that for clustered opinions (sic) with a common architectural theme, so long as the Site Development Plan was approved in accordance with section 2.05 of the PUD, then it was approved appropriately. And it is my opinion that it was. The third question asked was whether or not, under the rules of construction in the LDC, section 6.1.1, are the provisions of section 2.05 and 7.04.03 of the Pelican Bay PUD and section 2.75 of the LDC -- 2.75 refers to the variance provisions of the LDC -- are to be read in para materia, which means be read together, meaning you would have to apply all those sections together, and therefore, do the more restrictive provisions of section 2.7.5 of the LDC control the petitioner's petition to amend the SDP for Waterpark Place in order to reduce the minimum yard and distance structures for Group 4 parcels within the Pelican Bay PUD. My understanding is that question was asking whether or not you needed to apply for a variance to reduce the minimum yard and building separation requirements within the PUD. And my opinion is that under the prior and existing more specific provisions of section 7.04.03(C) of the PUD, for reduction of distances imposed for minimum yards, a property owner is not required to obtain a variance from the minimum yard and distance between structure standards pursuant to the variance section of the LDC, section 2.75, so long as Page 222 March 9 & 1 O, 2004 the requir-- so long as the requirement of being a case where there is a clustered buildings with common architectural theme is met. Section 7.04.03 of the PUD clearly states that the minimum yard and distance between structure standards for clustered buildings, which are listed in paragraphs A and B of the same section, may be less subject to site plan approval in accordance with 2.05 of the PUD. And it is my professional opinion that this procedure was incorporated in the Pelican Bay PUD in order to allow flexibility in determining the appropriate minimum yard and distance requirements between structures based on a site plan that is approved in accordance with the requirements contained in that section. But that is a little bit different than what you normally are accustomed to when somebody is requesting a variance or deviation from the yard standards in that it was specifically spelled out as to the procedure to be followed within the PUD, and that did not include requesting a variance or a conditional use. A variance would only be required under 2.75 if the building did not qualify as a clustered building or have a common architectural theme or otherwise did not meet the distance requirements of 7.04.03, paragraphs A and B of the PUD. None of these facts were considered to exist in the case of this referenced SDP Amendment, so therefore it's my opinion they followed the correct proceed -- the staff followed the correct procedure when they reviewed the site plan. And lastly, request four, the question was asked as to whether or not the Pelican Bay service division is required to review and approve a Site Development Plan and must there be formal action by the board of the Pelican Bay services division or does the administrator of the Pelican Bay services division have the authority to approve the Site Development Plan on behalf of the board. My opinion is that the Collier County Land Development Code Page 223 March 9 & 10, 2004 does not authorize an approval by the Pelican Bay services division of an SDP, a portion of an SDP, or SDP -- or an SDP Amendment. Instead, under division-- LDC Division 3.3 and various subsections, the approval authority is afforded to the planning or Development Services director, or now the zoning director in this case, or under section 6.1.5 to their delegate, meaning my staff. And this is the person that renders the official approval of the SDP or SDP Amendment. In other words, what it's saying is the code does not require that the Pelican Bay services division or the administrator of the services division approve the site plan before -- as a condition of approval in order for the county to approve the site plan. The county has the administrative authority to approve the site plan without the -- without waiting for the approval of the administrator. I believe that summarizes the appeal filed by Mr. Volpe. I would give the same, only a briefer presentatio.n for Mr. Pritt's if desired at that time. And at this time I suppose you'd probably want to turn it over to Mr. Volpe. CHAIRMAN FIALA: Yes. Thank you. MR. VOLPE: Madam Chairman, may I request, since it's 20 after, maybe you take your break now -- CHAIRMAN FIALA: Okay. MR. VOLPE: CHAIRMAN MR. VOLPE: CHAIRMAN (A recess was MR. MUDD: seats and we'll get this proceeding started again. -- and then we won't interrupt the presentation. FIALA: We can do that. Thank you. FIALA: Very good. Thank you. Ten minutes. taken.) Ladies and gentlemen, if you'd please take your Again, could you Page 224 March 9 & 10, 2004 please take your seats. Thank you very much. Madam Chair, have you a hot mike. CHAIRMAN FIALA: Thank you very much. Now, I understand, Susan, you have to give your-- another 10 minutes with regard to the other side, is that it, the other issue? MS. MURRAY: Yes. For the record, Susan Murray. It won't take 10 minutes on this one, but as you know there was two appeals filed, and I've been asked to give a summary of the interpretation for the second appeal, which was ADA-2004 -- MR. WHITE: Madam-- Madam Chair. If we're going to proceed to consider, quote, evidence on what essentially is item 7(A), then, I think, procedurally we have the same need for ex parte disclosures and swearing of witnesses as to that matter. CHAIRMAN FIALA: Oh, I thought when we did that we did that for both items. COMMISSIONER COLETTA: No, just one. MR. WHITE: My understanding is we were doing it for 7(B). CHAIRMAN FIALA: Very good. I'm glad you're keeping us straight, Patrick. Okay. Commissioners, it's ex parte for-- this is now 7(A), right? Okay, for 7(A). Commissioner Halas, we'll begin with you. COMMISSIONER HALAS: Start off, December, 2002, I had a meeting with Ted Raia, and then I had meetings with Ted Raia back in June of 2003; David Ramir -- David Weigel and other attorneys in March of 2003; again, with Ted Raia, 2004, which was February; and numerous meetings with the county attorney, staff, and numerous meetings with Joe Schmitt. Also met with Aubrey Ferrero, December, 2003, and got numerous correspondence, both by mail and email on this topic, and all of my ex parte is over here, and it's open for public -- for the public to look at. Page 225 March 9 & 10, 2004 CHAIRMAN FIALA: Commissioner Coletta? COMMISSIONER COLETTA: Very similar to Commissioner Coyle's. I've also received numerous communications. I've had, recently, a request for a phone call from Mr. Robert Raia -- is that how you pronounce it? COMMISSIONER HALAS: Ted. CHAIRMAN FIALA: Ted. COMMISSIONER COLETTA: But any case, I've had a request for a phone call, which I tried to return two times just in the past day. I've talked to staff on numerous occasions on this; received some emails, some correspondence from within the county; and I have everything here within my file for anyone that wishes to see it. CHAIRMAN FIALA: Very good. I have met with staff, with the county attorneys, and I don't know if I need to mention staff members, but let me say staff right now, they're sitting here in the audience. I've met with the landowner representatives, Rich Yovanovich, Mark Strain, and others. I've spoken with Mr. Raia. I don't know if that's how you pronounce your name, but close enough, right? At least you know who I am -- or who you are. And I've also received much correspondence, and I've tried to read most of it, and -- including from Roetzel and Andress and from Mr. Raia and from Ross Obley, and I've gotten newspaper articles also sent to me, and I've even received a telephone call. Thank you. COMMISSIONER COYLE: My disclosures for this item are the same as the one before. There's no distinction between the two, and so the disclosures I read into the record at the beginning are still applicable for both items. CHAIRMAN FIALA: Commissioner Henning? COMMISSIONER HENNING: Mine is the same as Commissioner Coyle's -- I read mine into the record, ex parte Page 226 March 9 & 1 O, 2004 communication -- as the last. Let's see. This is not a petition. This is an interpretation. MR. MUDD: Appeal. CHAIRMAN FIALA: Thank you. And now we need to swear in all of the audience members who will be participating and speaking. (All speakers were duly sworn.) CHAIRMAN FIALA: Thank you. MS. MURRAY: Thank you, Madam Chair. Again, this is ADA-2004-AR-5218, the Pelican Bay Foundation represented by Robert D. Pritt of Roetzel and Andress, requesting an appeal to official interpretation INTP-2003-AR-4307. In this appeal and request for interpretation, Madam Chair, the -- in the official interpretation the applicant asked the following: Does the Site Development Plan Amendment qualify for a reduction from the minimum yard requirements under section 7.04.03 of the PUD as a development consisting of clustered buildings with a common architectural theme. It is the director's opinion that subsection 7.04.03(A) and (B) of the Pelican Bay PUD specifically provide the criteria for determining the dimensions of the minimum yards and standards for determining the distance between structures for principal and accessory uses. Section 7 of the Pelican Bay PUD allows the development of multi-family residential buildings as permitted residential use in Group 4. From my review of then applicable facts derived from the county's records for this Site Development Plan Amendment, the application for Site Development Plan Amendment would qualify for a reduction from the minimum yard requirements for construction of multi-family buildings under the express terms of the conditions stated in subsection 7.04.03(C). As a little background, I just want to go ahead and point to the Page 227 March 9 & 1 O, 2004 amended Site Development Plan that I placed on the visualizer to give you an idea of what -- or at least show you what yards were reduced as a result of the approval of the Site Development Plan. During the application process, the applicant requested a reduction. And let me just orient you again. We're looking at the amended site plan, this is the one approved in 2001, where you see the cap d'Antibes structures, as of yet unbuilt, and they requested an amendment from -- or excuse me, a reduction from the minimum yard requirement along the northerly boundary of Tract D from the requirement of 100 feet to 50 feet, and that's this dimension right here on your plan. The other request was to reduce the required distance from the Cap d'Antibes structure to the St. Laurent structure. And the requirement was for a 200-foot distance, and they requested a reduction to 150 feet, and that's this dimension right here. Again, this individual asked five questions, two of which were responded to. Questions two, three, and five were not responded to. It was staffs opinions that the requests made were not consistent with the LDC Division 1.6 as to form of the request because they did not set forth a set of existing or proposed facts applicable to the text of the then approved or now proposed regulations to allow an interpretation to be rendered. So those questions were not answered. They are not addressed as part of this appeal, at least from the staffs perspective. The fourth and final question, the applicant asked, may the county staff determine whether or not the Site Development Plan Amendment qualifies as a, quote, common architectural theme project without conducting an architectural review under section 2.8 of the Collier County Land Development Code. That was the question asked, and the opinion rendered was that section 2.8.2 of the Collier County Land Development Code expressly Page 228' March 9 & 1 O, 2004 limits the applicability of division 2.8, which are the architectural and site design guideline standards, to commercial zoning districts, commercial and non-residential components of PUD districts. It's really important that 2.8 has no applicability here whatsoever. It is strictly related to commercial or non-residential projects as defined in that section. And that concludes the summary of this appeal. I did, real quickly, just want to stick up on the visualizer section 7.04.03 of the Pelican Bay PUD. It is in your packet. It's just important because it's going to be a reference, and I just want -- that you recognize. These are -- again, section 7.04.03. This is the page taken from the Pelican Bay PUD. These are the yard and building separation requirements that are required to be applied for approval of a Site Development Plan for projects within this group category, which is Group 4. I won't go over them, but I'll just point out A, B and C. A describes the required separation or distance from tract or development parcel lines, and the regulation is under there. B describes the required distance between structures. And then C is the provision that ties into A and B and says that in the case of clustered buildings with a common architectural theme, the distances, these distances, A and B, may be less provided that a site plan is approved in accordance with section 2.05. And those -- that gets to the heart of a lot of the discussion there, so I want to make -- make you aware of that. Thank you. CHAIRMAN FIALA: Thank you. Thank you, Susan. Mr. Volpe. Oh, I'm sorry, I thought -- MR. SCHMITT: No, it's Mr. Volpe, but I'm just-- CHAIRMAN FIALA: Oh. MR. SCHMITT: -- going to get the presentation, so go ahead. Page 229 March 9 & 10, 2004 MR. VOLPE: Okay. Madam Chairman, members of the board. For the record my name is Michael Volpe. I'm with the law firm of Robins, Kaplan, Miller, and Ciresi. I'm here this morning representing the Pelican Bay Property Owners' Association in connection with the appeal which the Pelican Bay Property Owners' Association filed on September -- I'm sorry -- on October 27th from the opinion rendered by Ms. Murray, which was rendered on September 29th. We are, as you know, appealing Ms. Murray, as your Planning Services director, interpretation of various provisions of the Land Development Code and also of the Pelican Bay Planned -- Pelican Bay PUD. I won't -- all of you have had the opportunity to review the submittals and you've talked with your staff, so for the record, I'm not going to go into a statement of the facts. I simply would refer and ask you to look at executive summary, which was presented by your staff, which I think concisely sets forth the factual background of where we are in this process. Just a couple of procedural footnotes. I would like to make sure that for the record there is entered into the record a copy of your resolution number 98-167, which simply sets forth your procedures for how you are to conduct quasi-judicial proceedings. The other is -- and Mr. White, on behalf of the staff, has entered the public notice that was published in the Naples Daily News with respect to this appeal. One other item, and that would be that we have designated, the Pelican Bay Property Owners' Association, have designated Dr. Raia as the spokesperson for the Pelican Bay Property Owners' Association, the petitioner. I'm the attorney, and Dr. Raia would like and respectfully request 10 minutes for his presentation in lieu of the presentation or other speakers presenting to the board. Page 230 March 9 & 1 O, 2004 On behalf of the Pelican Bay Property Owners' Association, we did request that various provisions of the Pelican Bay PUD and the LDC -- we questioned the interpretation of your staff in interpreting the procedures set forth in those documents as it relates to the amendment of the original Site Development Plan for Waterpark Place at Pelican Bay. What Ms. Murray had on -- and I had asked her if she would put back on the visualizer, Ms. Murray -- I think it would be helpful for an understanding of the issues that are raised on this appeal. That one's fine, Mr. Schmitt. The first issue was whether the provisions of the Pelican Bay PUD, and in particular those provisions that Ms. Murray just brought to your attention that establish minimum yard requirements for the development within Group 4, are to be measured from the separate platted tracts on the replat of parcel B or from the original plat of Parcel B. Now, on that issue, what is outlined in blue was the original plat of parcel B, and that was what was presented and available to your staff in 1990 when the staff originally approved the Site Development Plan for Waterpark Place at Pelican Bay. Fractionalized tracts on the southern portion of that property, what was developed was St. Pierre. St. Pierre condominium, it was developed around 1994, I believe, and 106 units, 22 stories, single tower, declaration of condominium recorded, and in that declaration of condominium, metes and bounds description of that portion of parcel B that was being deeded to the unit owners who were buying within St. Pierre. After that portion of parcel B was developed, the developer came in and asked to replat parcel B and to create four separate tracts: A, which is on the south side, B, a little bit to the north, C and D. On parcel B the developer proceeded to develop St. Laurent. St. Page 231 March 9 & 1 O, 2004 Laurent, 22-story, 106 unit condominium, developed, sold to end users. And in this instance, the -- a declaration of condominium for St. Laurent has that tract B description as the property, which is submitted to the condominium form of ownership. The developer came in in 2000 and asked for an amendment to the original Site Development Plan, and on the application itself, which is all a part of what your staff has presented to you, of the legal descriptions are C and D. Those are the two remaining undeveloped tracts on the replat of Pelican Bay. And in this instance said, we'd like to amend this Site Development Plan, and what we'd like to do is we feel that we want to, some adjustments in the minimum yard requirements, and staff told them that what they needed to do in order to accomplish that was they needed to show that there was a common architectural theme, which would then allow, under 7.03, which was the section she put up, to make certain reductions, provided further, though, that this amendment to the Site Development Plan was approved under 2.05 of the Pelican Bay PUD. 2.05 simply says -- is a site development procedure, interestingly enough, in the Pelican Bay PUD. There's a site development procedure as well in your LDC. The staff is using both now. They're saying we're going to follow the procedures over here in your Land Development Code and we're also going to look to the Pelican Bay PUD because it has them, and you've got to comply with both. They read them together as it relates to the approval process for the amendment to this Site Development Plan. 2.05, which is a part of the record, the materials that are submitted, essentially says you can go ahead and approve this Site Development Plan if there are materials that are presented to the staff which will demonstrate that this Site Development Plan is in harmony with the PUD and it is not injurious to the neighborhood, adjoining Page 232 March 9 & 10, 2004 properties, or it's not detrimental to the general welfare of the community. So staff, in the process, went through and concluded that those -- they satisfied the LDC they satisfied the PUD, there was a common architectural theme, and as Ms. Murray pointed out, they reduced the side yards. What they did, though, was, rather than measuring the side yards from the separately-platted tracts, they went back to the original blue outline of what was parcel B, which no longer exists because it was a replat. And when you replat, the original plat goes away. So it's our contention, as it relates to this first point, that what your staff should have done, that it incorrectly interpreted how we measure minimum yard requirements. How we measure, what are the points? The points were, we should be measuring minimum yard requirements are not from the original development parcel, which is what Ms. Murray's opinion is, that is what is outlined in blue. We say that it should be measured from the pink lines, and those are tract C and D, and that the staff doesn't have the authority under this interpretation to completely ignore and reduce to zero the minimum yard requirements between tract C and tract D. There's absolutely -- in her opinion, in all due respect, there's nothing that she can point to in the Land Development Code or in the Pelican Bay PUD that says, well, this is how we're going to -- development tract, development parcel, for purposes of the PUD, mean the original property that was a part of the original Site Development Plan. And we think that it was an error for her to have used those boundary lines for measuring minimum yard requirements. We think that was error, and we submit that you will find that there is no basis in the LDC for that interpretation. Page 233 March 9 & 10, 2004 There are definitions within the LDC that talk about lots, parcels, tracts, and all that. And if-- your staff will tell you that the definitions, that measuring is off of platted tracts, and these are platted tracts. And to measure from the original parcel boundaries just because that was used the first time, we believe, was in error. The next most important issue on this subject is this: When this petition -- when are this developer came in in 2000 and wanted to amend the Site Development Plan, it didn't own all of the property that was covered by the Site Development Plan. It only -- it had sold off St. Pierre, it had sold off St. Laurent. All it owned was C and D. That was the undeveloped portion. So now you've got the developer coming in and saying, I want to amend this Site Development Plan, but he doesn't join the owners of tract A and B. And this amendment is going to affect those people. They don't join in the amendment process, they're not given any notice of it. And we submit that under your LDC, unity of ownership is required in order for an amendment to occur. And again, these two parcels were sold off to third parties and -- in this instance without them joining in, without them consenting. We feel that it was flawed under your LDC. The interpretation of unity of ownership would require all of the people. And especially if you go back and adopt Ms. Murray's interpretation where she says, well, we're using the original boundary lines of parcel B, then you ought to get everybody who has an ownership interest in parcel B as a part of this amendment process. Your staff concluded that this was a substantial change and required the developer and his representatives to go through the site development process just like it was a first time. That's what your LDC says. It says if your developer/director says it's substantial, then you go Page 234 March 9 & 1 O, 2004 back to the beginning. You look like it's just a brand new process going back to day one. So there are two points there, the measurements, and also the fact that the application itself was defective even under her interpretation. The second issue has to do with the issue of clustering. The -- the basis upon which the staff administratively proceeded to reduce the minimum yard requirements set forth in the Pelican Bay PUD was that we found that there is a -- these are cluster buildings, common architectural theme, and further, we find that this amendment is in harmony with the Pelican Bay PUD and it's not injurious to the neighborhood or the adjoining property owners. That's how they came to the conclusion to reduce the side yards. On the issue of clustering, you all know that there's a provision in the Pelican Bay PUD. It was -- Pelican Bay was adopted, the ordinance, 1978. Build out, 28 to 34 years. The LDC didn't come into existence until, I think, 1989, when I was sitting there. And at that time, it was recognized, both in the Pelican Bay PUD and in the LDC, that things are going to change over time. We want to make sure that what changes there are in development we're cognizant of them and we apply the most recent standards. So we've asserted that your staff incorrectly, did not read the provisions of the LDC about cluster development with the provisions of the PUD for Pelican Bay that talk about clustering of buildings. I'm not a land planner, but the definitional section of your LDC and in the definitional section of the City of Naples it talks about the concept of clustering. Why do you cluster buildings? What's the purpose? Why do you have this innovative planning technique. Well, the reason why you do it is you want to provide open space, create open space. And the definition says that. That's what cluster is all about. So in this instance, what was the purpose of clustering these two Page 235 March 9 & 1 O, 2004 buildings? It certainly wasn't to increase open space. You know, we've reduced side yards, we've reduced minimum yard requirements, no more open space. Essentially, it was a business decision, which I don't fault, by the developer, who said, well, if I make a bigger building and I position it a little different way, I'm going to provide bigger units and better vistas for my purchasers. But that's not what cluster development or cluster building is all about. I submit to you that these provisions have to be read together. They have to be read together. If your staff picks and chooses and says, well, we're going to read the site development procedures in the LDC and the site development procedures in the Pelican Bay PUD together, we're going to make them comply with both, that's the way it's got to be, we submit that they should, as well, read cluster provisions together and that it was an incorrect interpretation on their part to conclude that they shouldn't be read together. Ms. Murray corrected herself after I filed the appeal, and said, whoops, well, I said that Group 4 housing only applies to multi-family. That's not right. It isn't. It's not right. Group 4 allows single-family residences. Indeed, the original plan for Waterpark Place at Pelican Bay included a single-family residence. It was one of the original -- if you look at it, it's there as part of the record. So she was wrong. She based her interpretation on that part of it. She said, they don't apply because Group 4 doesn't allow single-family residences. Simply not true. She acknowledged that. The other part of the LDC is that, not only does the LDC apply to single-family residences, but it also expressly applies to PUDs. There's no question about it. You look in the applicability section, it says it applies to PUDs. So even if it didn't apply to single-family -- only applies to single-family residences, it does apply to PUDs. Page 236 March 9 & 1 O, 2004 We believe that that was an error in her interpretation as it relates to clustering. You simply read them together, 78, 89, City of Naples, the model code had all these provisions about clustering, and we believe that they should be interpreted together. Now, the concept of clustering. Now we have to talk about common architectural theme. And your standard of review, as your legal counsel has aptly tried to advise is, well, you're going to be limited to everything that was before the staff. But if we've got some other public testimony, no, you really shouldn't consider that. Well, I submit that there was no evidence before your staff. Evidence is defined as proof through a proceeding like we're having today. That's what evidence is. I submit there is no evidence in this record. You've got three letters from three architects engaged by the developer, submitted to your staff, that say, in our opinion there is a common architectural theme. That's not evidence. It's a letter. It is not evidence. That was the basis upon which your staff concluded there was a common architectural theme. We submit that that was not evidence. You'll see on the visualizer later this issue about common architectural theme. And we do have an expert from the University of Florida who is an architect, who would offer public testimony on the issue of common architectural theme. The next issue is this issue about, it is in harmony and not injurious to the adjoining property owners, the neighborhood, or detriment for the general welfare. What's the basis for the staffs conclusion that it is in harmony and not injurious to the adjoining property owners, the neighborhood, and the like? The only thing -- and we've looked at the record, which is what, even if you're confined to the record-- MR. WHITE: Madam Chair, I'd -- we've been asked to let you Page 237 March 9 & 10, 2004 know if we thought there were an issue that were not part of was it was that had been originally presented as an appeal, and we've forborne until now, but I do not recall that as being any part of the original request for interpretation nor is it anything that I think arises except through Mr. Volpe's supplement that was filed, as we've indicated, untimely, in the sense that it was beyond the 30-day window. So regrettably we're, I guess, going to have to have a discussion about it at this point in time and try to advise you appropriately. But at this point I'm concerned that we're straying into an issue that wasn't previously raised in any way. CHAIRMAN FIALA: Thank you. COMMISSIONER HALAS: Okay. How far back do we need to go then where this discussion started taking place? MR. WHITE: Well, you're essentially at a place where there's two sources from which Mr. Volpe's arguments can come. One of them certainly is his original interpretation, and he'll stand before you today and tell you that, as to the supplement that was provided -- assuming it's not going to be included as part of the, quote, consideration of the BZA today -- he's not arguing from that. He is arguing before you today essentially on the response -- as a response to the interpretation that was issued. And I don't recall it being within the scope of the original interpretation. So I have to caution the board that we're getting into that gray area and we may need to have some discussion about it. CHAIRMAN FIALA: Okay. So if it's nothing that we have to vote on, nothing that pertains to the issue -- we want to make sure that we stay legally within our bounds. Okay, Mr. Volpe? MR. VOLPE: And all I'm suggesting is, I'm commenting on what Ms. Murray's comments were about section 2.05. That was Page 238 March 9 & 1 O, 2004 applied. That's what the staff used. In my request for an official interpretation and in her response, we talked about harmony, we talked about injurious to the neighborhood, surrounding property owner. That's a part of the PUD. My comments are simply, your record, what you have before you, I'm submitting to you that there is nothing in the record that addresses that issue to support that conclusion, period. There's nothing. And I will comment -- it's a part of the public record, not a part of my submittal necessarily. The only time that issue is addressed, there is a February 6th, 2003, memo from Mr. Bellows. It's the only piece of public -- in your file that will we have found, and Mr. Bellows says, harmony is what -- in the professional opinion of the planner who's assigned to this project. Mr. Nino was the planner in this project, so it was his professional opinion, this amendment, with this new building MR. WHITE: Madam Chair, it's at that point where I believe we're starting to offend, perhaps, one of the other rules that we'd suggest to you about, quote, new evidence, because remember, this is not a review of the staff's -- COMMISSIONER HALAS: So it's irrelevant. MR. WHITE: -- approval of the SDP or not. CHAIRMAN FIALA: And not only that, but we have now finished with your 20 minutes, so -- MR. VOLPE: I have -- Madam Chairman, please, I mean this is -- if you would just accord me another five minutes. I've tried to be brief, concise, and the point. I'll finish very promptly. CHAIRMAN FIALA: I'm going to give you the five minutes -- MR. VOLPE: Thank you. CHAIRMAN FIALA: -- but you've asked for an extra five minutes for Mr. Raia. I don't know where I'm going to take these five Page 239 March 9 & 1 O, 2004 minutes from. But would you get to the point and avoid getting into any areas that don't pertain to this item, please. MR. VOLPE: I will submit for the record the signatures of as many as 1,900 residents of Pelican Bay who, in their opinion, do not believe that this proposed amendment is in harmony and that it's not injurious to the surrounding neighborhoods. (Applause.) CHAIRMAN FIALA: But, again, you're getting onto the other subject; is that correct? MR. VOLPE: On that subject. MR. WHITE: That's fine. MR. VOLPE: The only other issue, Madam Chairman, that I wanted to comment. There are other issues that were raised. Ms. Murray has addressed them. I have submitted them to you. I think it's proper for you to consider my arguments that are a part of what I submitted because written materials could be submitted to you any day up to seven days prior to. That's my argument on behalf of the Pelican Bay Property Owners' Association. The standard of review that you have, and it's set forth in your Land Development Code, is staft~s determination, their interpretation, has to be supported by competent, substantial evidence, and it can't be contrary to the Growth Management Plan, Land Development Code. I submit that there was no evidence before the staff. And secondly, that in terms of interpretations, that they were improper interpretations as it relates to who was the proper applicant on the amendment to the site plan. They should have joined all the property owner that own parcel B. Cluster development, cluster building, we believe that that was an incorrect interpretation, that the two, LDC and PUD; do not apply and should not be read together. We believe that they should and that the developer should have gone through the procedures under the Page 240 March 9 & 1 O, 2004 Land Development Code. The more restrictive apply. That's what the interpretations under your LDC said. The relief that we request is that what you do is you require this P -- this Site Development Plan, this amendment to the Site Development Plan, to go back to your staff and be rereviewed based upon what is a proper interpretation of the Land Development Code. This is an interpretation by you, you're the Board of County Commissioners sitting as the Board of Zoning Appeals, but this is your law. It's your interpretation, it's not your staffs interpretation. And we think that we have demonstrated and will demonstrate that it was -- their interpretation was in error, single-family PUD as it relates to clustering, and the concept. Appreciate your indulgence. In terms of our presentation, Dr. Raia is going to present 10 minutes on behalf of the Pelican Bay Property Owners' Association, and most of the other speakers -- there may be just a few -- have actually waived their right to speak, so we won't be taking up too much more of your time. CHAIRMAN FIALA: Okay. Commissioner Henning had a -- MR. VOLPE: Madam Chairman, I just have -- I had one other question, I'm sorry, because it wasn't answered before, and that is, to what extent will we be allowed to ask your staff questions? Mr. Weigel, at the outset, had indicated about -- I hate to -- I'm a lawyer, but I hate to -- cross-examination. But would we be accorded the privilege of asking questions of the staff?. Because we're the appellant, you're the appellee. You're -- you're the person who's, you know -- so I guess I just need to know from Mr. Weigel and from the Chair whether we will be able to -- and this will be for the foundation as well. CHAIRMAN FIALA: Mr. Weigel? MR. WEIGEL: Yes. I'm happy to respond to that question. I think that they can be afforded limited -- and I stress the word limited Page 241 March 9 & 1 O, 2004 -- form of examination or cross-examination, and, in fact, all parties will have that to the extent that the Chair so allows. But I think that it that may be appropriate -- may well be appropriate for -- upon request, to have limited examination or cross-examination. Another point I'd like to raise to the board is that with the submittal of, purportedly, a packet of hundreds of signatures of a petition of some sort, I note for the record that that is not part of the review process before you today. And, in fact, if it is to be recognized at all, it's just to be recognized as an unswom submittal to which you have had no opportunity to review in the normal process of your quasi-judicial review here. So if it shall -- shall be affixed to the materials that become record today, I would hope that the board would go on the record with the answer to a few questions that I'll ask you right now. Have you, in fact, seen and read the petition? CHAIRMAN FIALA: No. MR. WEIGEL: Any of you? COMMISSIONER COLETTA: No. MR. WEIGEL: Okay. Was it a part of the packet that came up to you for today's hearing? CHAIRMAN FIALA: No. MR. WEIGEL: Okay. And do you have any knowledge that the statements therein have been sworn to by the persons making the -- purportedly making the statements in those documents? CHAIRMAN FIALA: No. COMMISSIONER HALAS: No. COMMISSIONER COYLE: No. MR. WEIGEL: Okay. I thank you for that direction. CHAIRMAN FIALA: Okay. Commissioner Henning, you had a question? Page 242 March 9 & 1 O, 2004 COMMISSIONER HENNING: I guess just the procedure. We're only hearing the issue around the planning director's interpretation? MR. WEIGEL: That is correct. COMMISSIONER HENNING: Okay. MR. WEIGEL: You are not, as Patrick has indicated a couple times -- Mr. Schmitt and Ms. Murray as well -- you are not reviewing the actual process of approval of the amended SDP occurring several years ago. You are reviewing the appropriateness of the interpretation provided pursuant to questions raised, and the -- upon the application to the facts that were there for the director, zoning director to utilize. And I would take issue that there are no facts until today. I think that the facts are limited to that which is created before today and that today's discussion is based upon those facts and those law that existed at a point in time prior to today. CHAIRMAN FIALA: Okay. MR. VOLPE: I didn't say there weren't any facts, I said there was no evidence. MR. WEIGEL: That's true. MR. VOLPE: Isn't that correct? MR. WEIGEL: That's right. CHAIRMAN FIALA: Okay. Commissioner Halas? COMMISSIONER HALAS: I would hope that our legal staff would jump in immediately when there's something that's not relevant to the hearings so that we stay on track and don't get into this gray area so that it clouds what we have to do here today. MR. WEIGEL: Yes. CHAIRMAN FIALA: Thank you. Okay. Next speaker? Page 243 March 9 & 10, 2004 MR. VOLPE: May I ask Ms. Murray a question now, or would it -- I just have one question to ask her. That would be it right now. CHAIRMAN FIALA: Okay. MR. VOLPE: I just have to -- CHAIRMAN FIALA: Okay. As long as our county attorney said this is in order. MR. WHITE: I would think so long as it was solely pertaining to what she's already put into today's record-- CHAIRMAN FIALA: Okay. MR. WHITE: -- or as part of her interpretation. MR. VOLPE: It will be so limited, Mr. White. Ms. Murray, on the question of your interpretation with respect to clustering, in your interpretation you said the opinion that these should not be read together, that is the clustering of the LDC and the clustering of the Pelican Bay PUD, the above opinion is based on the fact that the LDC section for clustering is limited in its application to the clustering of single-family dwellings. Furthermore, in the subject development request and underlying Site Development Plan, only multi-family buildings are on the plan. Two questions. You said that that was an error, that that's not true. Is that -- is that -- the clustering provisions of the LDC, do they apply to single-family? MS. MURRAY: Let me make sure I understand your question, Mr. Volpe. You're asking me if the clustering provisions of the LDC apply to single-family; is that correct? MR. VOLPE: That's correct. MS. MURRAY: Yes, they do. MR. VOLPE: Do they apply to multi-family? MS. MURRAY: Yes, they do. MR. VOLPE: They do? Was that -- your interpretation was that they did not apply to multi-family; is that correct? Page 244 March 9 & 1 O, 2004 MS. MURRAY: You're asking me if my interpretation said -- MR. VOLPE: When you rendered your opinion before today -- MS. MURRAY: Well, can I ask the question so I understand what your question is? MR. VOLPE: Sorry. Yes, ma'am. MS. MURRAY: Thank you. You're asking me if section 2.6.27, regarding cluster development of the LDC -- MR. VOLPE: Right. MS. MURRAY: -- applies to multi-family? MR. VOLPE: Correct. MS. MURRAY: Okay. And I said yes. Okay? MR. VOLPE: My next question was, was that your opinion at the time you responded to my request for an official interpretation? MS. MURRAY: Yes, it was. VOLPE: Okay. And do the LDC provisions apply, with clustering, also apply to PUDs? MURRAY: You're asking if the LDC provisions for-- VOLPE: For clustering. MURRAY: -- for clustering apply also to PUDs; is that MR. respect to MS. MR. MS. correct? MR. VOLPE: Right. So the opinion above is based on the fact that the LDC section with clustering is limited in its application to the clustering of single-family dwellings; is that a correct statement? MS. MURRAY: According to the provisions of the code under the clustering section, there are zoning districts which are enumerated in the clustering section in terms of applicability that include multi-family as a permitted use. MR. VOLPE: So I've just asked if that's a correct statement. MS. MURRAY: So, correct, the clustering provisions would apply to multi-family. MR. VOLPE: No. I'm just -- I'm not trying to -- it just -- it says, Page 245 March 9 & 1 O, 2004 MR. VOLPE: the only question I CHAIRMAN Next speaker. MR. VOLPE: the opinion above is based on the fact that clustering provisions of the LDC are limited to -- in its application to the clustering of single-family residences; is that true? MS. MURRAY: That's not true. Yeah. And then -- the only other -- I think that's wanted to ask you. Thank you. FIALA: Thank you. Thank you, Madam Chairman. And I -- presumably if there are any questions, and they would have been asked by now, but I'll sit down. CHAIRMAN FIALA: Yes, we're going to ask questions later. Okay. Dr. Ted Raia. Are you going to allow him 10 MR. VOLPE: MS. FILSON: minutes? CHAIRMAN FIALA: Yes. We'll allow Mr. Raia 10 minutes. MS. FILSON: He will be followed by Susan Tate. CHAIRMAN FIALA: Now these are all with 7(B), right, these speakers? Okay. MR. WEIGEL: Yes. MR. RAIA: Honorable Commissioners, my name is Ted Raia-- CHAIRMAN FIALA: Mr. Raia, would you pull the microphone closer to you, please. Well, just pull it down. There you go. MR. WHITE: Madam Chair, I think there's a procedural issue, and I don't know that this board's made a determination about this yet or not, and I apologize to Mr. Raia. But is public testimony going to occur after the presentations? Because I'm not sure if Mr. Raia's testifying under the notion of public testimony or as part of the time pertaining to this appellant? And I'm just trying to get that clarified -- CHAIRMAN FIALA: Oh, I see. Page 246 March 9 & 1 O, 2004 MR. WHITE: -- so that-- CHAIRMAN FIALA: Yes. You know, I had personally thought we would be doing first 7(B) and then 7(A), and then Mr. Raia, and then the speakers, is what I had thought we would be doing. Is that okay? Maybe Mr. Raia can come up, and he will then start the public speakers, but he's going to have -- on the public speakers side, he's going to have 10 minutes. I'm glad you brought that to my attention. Yes, Mr. Pritt. MR. MUDD: Commissioner, I want to -- I've been pretty quiet over here, and I just need one point of explanation from the County Attorney's Office, and I want to make sure. On 2 March, Mr. Raia provided a packet to me to be put into the public record, okay, and I'm not too sure it was part of the appeal or the -- or the information that was provided for the appeal, but he handed me this packet in the morning as I came in. And it basically says, I'm requesting that the following attached material will be made part of the official records of the Camp (sic) d'Antibes hearing before the Zoning Board of Appeals scheduled for March 10th. My submittal containing information is referenced to the approval of the site, the submittal containing the opinion of Professor Susan Tate of the University of Florida in Gainesville in reference to the approval of the site plan. I just want to know from the county attorney's side of the house what I do with this particular request. MR. WEIGEL: Okay. Jim, as I told you on that day -- and I'm glad you brought it up for the record today -- is that it was submitted to you, and you are not a submitter to the Board of County Commissioners on behalf of any public person or on behalf of the appellant or the stakeholder, and that you were to hold on to that. Page 247 March 9 & 1 O, 2004 And that document has not been submitted to the board through you, you are so indicating, and as I so advised you. And, in fact, that document, to my knowledge, has not been presented to the Board of County Commissioners prior to this meeting and is not subject to be presented to the Commissioners in the course of this meeting. MR. RAIA: May I make a correction? On March 2nd I did give a copy to each Commissioner that very morning. CHAIRMAN FIALA: Of the same -- of the same item? MR. RAIA: Exact -- exactly. They had the exact copy of all the information. So they are in receipt of it. Now, I don't know what the determination is going to be, but I want to correct that. MR. WEIGEL: Okay. Well, I appreciate the correction. COMMISSIONER HALAS: I found this -- I found this on my desk on the date that it came in, March the 2nd. MR. WEIGEL: Okay. But the fact is, as -- COMMISSIONER HALAS: So is it relevant or irrelevant? MR. WEIGEL: Irrelevant. COMMISSIONER HALAS: Okay. MR. WEIGEL: And my communication with Mr. Mudd was for him not to distribute. So if it came in some other way -- CHAIRMAN FIALA: No, Mr. Raia came in 'cause he was in my office that day, and he handed me a copy and he asked if he could give copies to the rest of the members, and I said yes. So if there's any fault to be had for allowing distribution, it's mine. MR. WEIGEL: I'm not using the word fault, I'm just saying irrelevant. CHAIRMAN FIALA: Oh, that's all right. MR. WEIGEL: Irrelevant, that's all we need to describe it. MR. VOLPE: Madam Chairman, I just need to say that in accordance with your public notice, we had the absolute right to Page 248 March 9 & 10, 2004 submit materials to the board not later than seven days prior to the hearing. That was submitted to the board in accordance with the advertisement that appeared in the Naples Daily News seven days prior to. So I respectfully disagree with Mr. Weigel's statement that this material is irrelevant. We could submit any materials to you under your resolution governing quasi-judicial proceedings in the advertised public hearing -- at least it was seven days. You've said my petitions are not acceptable. I'll accept that because they weren't seven days before, I submitted them. But materials submitted prior to seven days before are part of the public record. CHAIRMAN FIALA: You have a question, Commissioner Coyle? COMMISSIONER COYLE: No, it's been answered. CHAIRMAN FIALA: Okay. Very good. So, Mr. Weigel? MR. WEIGEL: Okay. What I'm saying is that to the extent that new evidence -- using the word evidence, not facts -- is attempting to being -- be submitted, that's inappropriate. Because although this is a quasi-judicial decision-making proceeding, and we're operating generally under the quasi-judicial procedures that we have by resolution 98-167, the specific will control here and there are specific rules for the board's review of an appeal to an interpretation. And so, therefore, new evidence submitted at any point prior to the hearing, whether it's within seven days, but after 30 days under the specific rule for an appeal, has problems in being submitted to you, and yet, I know that you've had significant information which you've communicated rather fully in your ex parte communications, in the meantime, and we're working through these things obviously the best we can. Page 249 March 9 & 1 O, 2004 The concept is to avoid prehearing prejudice of you so that you, as Commissioners, sitting collectively, can hear the matter today, sitting collectively, and come to your decision today, sitting collectively, and it's very problematic if evidence that is not before -- competent and substantial evidence that is not before the zoning director is being submitted to you sidebar. MR. VOLPE: Just a clarification, Madam Chairman, that's not evidence. It's a -- your county manager said you've got some materials that were submitted. Is it relevant? It's relevant. I mean, how you're going to treat it -- it's not evidence. We don't -- Dr. Raia is going to offer public testimony which will be evidence. That's not evidence. It's just a submittal. You can look at it, you can read it, however you treat it your county attorney will tell you, but it's not irrelevant. CHAIRMAN FIALA: Well, David, we've all received it, and so is there -- is there a point to this discussion that you want to make? MR. WEIGEL: Well, the point-- CHAIRMAN FIALA: I'm sorry -- and please, folks. MR. WEIGEL: The point to the discussion came from the question from Mr. Mudd about further submittal at this point in time of something that was given to him with an instruction from Dr. Raia to submit on the record today, and so that's how we entered this. And as I told Jim before and on the record tell him again, it's not -- it's not appropriate for him to submit it to you or on behalf of anyone else. So it's as simple as that in regard to that document. CHAIRMAN FIALA: Oh, okay. But-- and we already have it and Mr. Mudd did not submit it to us. We got it from Mr. Raia. Now, Mr. Raia, I hate to do this to you because you're already standing there, but we're going to follow the order that we had -- we had begun with, and that will be Mr. Pritt for 20 minutes. Yes, Commissioner? Page 250 March 9 & 1 O, 2004 COMMISSIONER COYLE: Can I make an observation for the benefit of the attorney when we get to Mr. Raia's presentation? There are elements contained in Mr. Raia's submittal to us that clearly are not part of the petition or the appeal. COMMISSIONER HALAS: Yeah. COMMISSIONER COYLE: And I think it is important that we recognize that and anticipate it so that we can instruct Mr. Raia not to venture into those areas. There are portions of the information he has provided us that are almost identical in nature to what -- what Mr. Volpe has stated in his appeal. But there are areas that have nothing to do with this appeal, and I think Mr. Raia should be -- should be advised of that at the point in time when that presentation is made. CHAIRMAN FIALA: Thank you. MR. WEIGEL: I appreciate that. We'll endeavor to do that. CHAIRMAN FIALA: Mr. Pritt? MR. PRITT: Thank you, Madam Chair, members of the board. My name is Robert Pritt with the law firm of Roetzel and Andress. We represent the Pelican Bay Foundation. I would like to save some time for rebuttal and closing. I'm here also with my partner, John Blakely. If you would raise your hand, John. John would like to do some cross-examination, reasonable cross-examination, and perhaps, assist in the closing. Mark Hewling, also from our office, is here. Raise your hand, Mark. He's working with us on this matter. The -- a lot of what I would want to say has been said by Mr. Volpe, and I endorse his comments and his analysis to you. Some of it I will have to go over in my own way. Maybe it will be a little bit repetitive, but we are, again, trying to economize as much as possible. I would like to indicate that we also had a submittal, sent a submittal to this board on March 2nd in accordance with your Page 251 March 9 & 1 O, 2004 resolution that allows for that, and in accordance with notice of this hearing that we received. As a matter of fact, one of our submittals is a copy of the notice of this hearing. And we respectfully request and urge the board to accept those submittals because we think that is part of your record. I would like to point out that as far as we can tell the -- for lack of a term, so-called record that you have with the agenda item numbers consisting of some 200 plus pages, we never found until we got it off the Internet. It was never given to us. The county attorney's opinion was dated yesterday, and it was never given to us either. So we ask that the board be flexible in both ways for both the applicants and the staff and consider all of the evidence here in front of you. I would like to indicate to you also that we have David Trecker, who's in the front row. He's the chair of the board of the foundation. And then I'd like -- and he'll be one of the speakers. We did try to limit the number of speakers. I'm a little concerned about this thing about the petition. One of the purposes for the petition was to make it unnecessary for a whole lot of people, more people even, to come down and personally testify. However, be that as it may, you do know that there are many, many signatures on petitions that have been at least proffered to this board. This is an appeal of an interpretation of the director of the Department of Zoning and Land Development Review dated November 24th, 2003, by a legal counsel -- and received, rather, by legal counsel on December 8th, 2003. In summary, our client disagrees with the interpretations of staff that the Site Development Plan at Waterpark Place in Pelican Bay, that you've already heard of, can be amended without notice to property owners from two buildings that are 200 feet apart and 100 feet from the property line to one building with two towers -- one Page 252 March 9 & 10, 2004 gigantic building with two towers that are only 50 feet from the other property line. I'd like to point out there -- it's still on the visualizer -- there is nothing that shows the St. Raphael, which is on the left-hand side, on the north side, there's -- in this application. So there was little or no consideration that was given to the effect on the St. Raphael. And you'll hear more about that from the speakers. The applicant is the Pelican Bay Foundation, Inc. The foundation is the master homeowners' association for Pelican Bay. It includes over 13,000 members, many of whom are owners of property in the same development area, that's Waterpark Place, and adjacent to the property to be developed, and that's the St. Pierre, the St. Laurent, and, of course, on the other side is the St. Raphael, as I said. Some of the foundation members own property immediately to the north, again, the St. Raphael, and also to the east. Additionally, the foundation owns an easement on the berm of the property -- of the property in question -- owns the berm immediately adjacent to the property in fee simple, owns the boardwalk property and the Sandpiper parking lot property, all within 300 feet of the Cap d'Antibes property. And we've alleged that in the Notice of Appeal. In the supplemental notice, we just put in copies of the deeds that show that. But Dr. Trecker can take a -- again, fill you in on that, if permitted. The foundation meets all of the requirements of 1.6.6 of the county Land Development Code. It's an applicant, it's an affected property owner, and it's an aggrieved or adversely affected party. Those -- those are the ones that have the right to appeal. We intend to provide a presentation by several members of the foundation. We're not going to encourage all members who are present to speak, as long as they can have their cards put into the record. Page 253 March 9 & 1 O, 2004 Again, I'm a little bit concerned because the cross-examination that we had concerning -- from -- or the opinion from the county attorney concerning you not considering any unswom testimony may encourage people to actually come up and say something. I know I would if I were them. But we'll try -- we do have some speakers that are part of our presentation, and we'll try to keep that succinct. Now, let's go to the request for the interpretation. What was actually said and what actually happened? On June 10th of 2003, Frederick R. Hardt, who was formerly with our law firm, submitted to the director a request for formal interpretation of the development standards under SDPA-2001-AR-12, and that's the development of the Cap d'Antibes as the final phase. This was submitted under division 1.6 of the Collier County code, and that's in Exhibit 1 on to our Notice of Appeal. It was a six-page request outlining the facts, outlining -- giving a summary of the foundation's position, and even made a request for a formal interpretation on four items. And I won't go into the four. They're in your record attached to the Notice of Appeal. I think they're on Page 20 through 24, 43 through 46. For reasons unknown to us the -- our Notice of Appeal was bifurcated, Page 3 and 4, and 5 and 6 were separated. I'm not sure why the staff did it that way, but we do have that in our Notice of Appeal as exhibits. The director did not respond to the request until September 29th of 2003. That's 111 days later. So if you're wondering why this is here today and it wasn't here 111 days ago, that's the reason. The code requires a response within 45 days, and that's in Appeal Exhibit 2. Now-- and I'll get into that in a minute. Put a little asterisk by that. What happened then, the director declined to respond, contending that the request did not read -- meet the form established by the Page 254 March 9 & 10, 2004 director because it did not, quote, set forth a set of existing or proposed facts arising from a proposed pending or approved development request, which would be or is applicable to the text of then approved or now proposed regulations. And further, that the request was not, quote, cast in the form of questions. In other words, there was not a question mark at the end of the sentence, so that was the reason for turning it down. Now, we submit that this insufficiency response was actually given because it was way past the 45-day limitation for the director to have actually made a response to the request. As I said, it was 111 days, and then we get the sufficiency response. In any event, Mr. Hardt revised the request for interpretation, and that's in Exhibit 3 to the Notice of Appeal. He referred to the request of June 10th that had already been made. He did not reiterate all of the facts, but -- that were provided in the request, but he put the request in the form of five questions. One, does the SDP Amendment qualify for a reduction from the minimum yard requirements under 7.04.03 of the PUD as a development consisting of clustered buildings with a common architectural theme? That's one of the issues. Two, if your answer to question 1 is in the affirmative in determining whether the SDP Amendment consists of clustered buildings, what other standards, if any, imposed by the LDC, the Pelican Bay PUD, or any other regulations, as defined in section 3.3.510 of the LDC, were applied or considered by the county staff for purposes of the SDP review? The answer was, I'm not going to answer that question. We think that that question should have been answered. Question three, very similar. If the answer to question one above is in the affirmative concerning common architectural themes, what other standards, if any, imposed by the LDC, the Pelican Bay, or any Page 255 March 9 & 1 O, 2004 other regulations were applied or considered by county staff for purposes of LD -- of SDP review? So clustered buildings and common architectural theme, those two questions were asked. Those two questions were not answered. Four was, may the county staff determine whether or not the SDP Amendment qualifies as a common architectural theme project without conducting an architectural review under section 2.8 of the LDC. Ms. Murray did mention that she did answer that question, and she did, and she said no. And five, did the application for the SDP Amendment demonstrate that the approval of the site plan will not be, quote, injurious to the neighborhood or adjoining properties as required by section 2.05 of the LDC, and that question was not answered. So we're standing here in front of you asking for determinations on three really -- essentially three substantive issues. A friend of mine who was a judge, very fine judge, I really respect him, one time said that the key to the ability for good judging is to be able to focus in on what the merits of the case are. And all we're doing today, this morning, is wrangling about whether or not we're going to be allowed in the public hearing, that is allowed under 1.6.6, the only public hearing that has ever been allowed on this matter, we're wrangling about whether or not we're allowed to actually bring in any evidence. Now, I'll talk about 1.6.6 in a second. Oh, by the way, the -- the rules concerning form, the -- having to do with the -- the question not being in the right form. That's a rule that's made up by the director. The -- it says in a form -- the statute or the ordinance says, in a form provided by the director, but it does not give any guidance as to what that form is. So this is a rule that was being made up by the directors. As I submit, the rules are continuing to be made up even to this day by the Page 256 March 9 & 1 O, 2004 legal staff, and I oppose that. So what happened is the director's saying, hey, you're not-- you're not -- you didn't meet our rules. And the second time it was restated and the director said, well, you didn't meet our rules again. And I think in just a cursory review you'd find that the rules were met and the questions should have been answered. Now, on question one, she did render an interpretation only in part. She refused to analyze the effect of section 2.05 of the PUD, as I said, saying that the request for interpretation does not pertain to that condition. Of course, question 5 asks just that, referring to section 2.05 by number and description, and she refused to answer question number five. So what are we asking you to do? Well, we're asking you to cut to the chase, decide three issues. Common architectural theme, does the Waterpark Pla -- does the Cap d'Antibes project at Waterpark Place share a common architectural theme with the rest of Waterpark Place and the rest -- and the -- the properties next door? We say the answer is no, and we have experts here to testify to that point. Both a -- a land planner and an architect. Was this a clustered -- does this qualify as clustered buildings. And the staff said, yeah, it's clustered. And the reason they said it's clustered is because -- best I can tell, because it's many units in one building. That constitutes a clustered building. Of course it not. And you heard a little bit from Mr. Volpe about what a clustered -- what clustered buildings are. This is a cluster in a building, one big, gigantic building with two towers. That's what we have here, and so it does not qualify. The -- the legal framework for this hearing has been discussed and rediscussed, and I think that you're getting bad advice, frankly, and respectfully, from your county attorney staff. I think that this is the public hearing. It's not my fault and it's not Page 257 March 9 & 1 O, 2004 the county attorney's staffs fault, probably, that -- that this procedure's a little bit backwards. But the only time anybody got any notice was of this hearing. There was never any notice -- as Mr. Volpe said, there was never any notice of the SDP Amendment process -- in the SDP Amendment process. There is no record -- there was no record that anybody can point to as being the record of the SDP Amendment process. This isn't one. Now, one was made up for you recently. I don't know when or by whom. We've had at least three public records requests. There was no record of what happened at that time. Substantial competent evidence. It's -- it's very clear in the law that -- that the substantial competent evidence that is adduced at a hearing is evidence, first of all, that is brought in at a hearing. Like today, we have a hearing in which you are going to hear evidence. There was none at the SDPA process. There just wasn't. There was no swearing of witnesses, there was -- and the most important thing, due process. I heard-- I heard the attorney for the -- for the property owner get up and talk about due process. That's -- that's all we're talking about, practically all we're talking about. Due process was never given at the time that the SDP, Site Development Plan, was approved. MR. WEIGEL: And I'm going to interrupt right now just to let you know that that isn't the issue before you today. The process of the SDP review and approval, or the amendment to the SDP, is not the issue before you today, although Mr. Pritt would purport to make it such. And I would suggest that you disregard this discussion and direct it elsewhere. MR. PRITT: Is that what -- is that the board's -- CHAIRMAN FIALA: Yes. We're trying to stay on track, sir. MR. PRITT: Well, your attorney is taking you very far off track. Page 258 March 9 & 1 O, 2004 We're entitled to due process just like everybody else is entitled to due process. Your procedures do not provide for that at the local level. Let me try to say it in a way that -- I don't mean to be offensive, Mr. Weigel, so don't take offense. But the problem is is your procedures do not provide for notice, opportunity to be heard, and a hearing; however, when you get to your own review process, it says that you are limited, you, the board, are limited in your analysis if there was -- unless there was -- excuse me -- competent substantial evidence. If there was competent substantial evidence, then you are limited in your review. That never occurred. So that is very relevant to what you are doing today. It's right here in 1.6.6. CHAIRMAN FIALA: Okay. Well, you -- Commissioner Henning? COMMISSIONER HENNING: Mr, Pritt? Mr. Pritt? MR. PRITT: Let me just read one point -- COMMISSIONER HENNING: Mr. Pritt, we are listening to go you -- MR. PRITT: Okay. Thank you. COMMISSIONER HENNING: -- okay? And we -- what we want to hear is the argument on the planning director's interpretation. The question that -- well, I was looking at the rendering of opinion, and I find it hard to see where the questions are. So if we could just stay to those materials, I think that's what we're here for. MR. PRITT: Well, the three issues before you, I've said, common architectural theme. There was no evidence of that. I have to -- I have to put it in that way because that's what you are looking at, and this is what this hearing is all about. There was none then. Yet, the director relied on documents that supposedly were in the so-called record, even though the record didn't exist, pertaining to Page 259 March 9 & 1 O, 2004 architects -- letters from architects that were not sworn, were -- there was no notice, opportunity to be heard, or anything like that, for those letters. She relied on that for her opinion. So that is not competent substantial evidence to be relied on. And the other thing is, if you're actually going to look at those letters, which I say you should not and she should not have considered, if you're going to look at the letters, the letters did not claim that there was a common architectural theme. There's -- it's a common architectural style. There's a difference between the two, and we have architects who are prepared here today to show you the difference and tell you the difference. As a matter of fact, they have already submitted affidavits indicating that -- to that effect, that this is not a common architectural theme. So on that issue, there was no evidence to the contrary, and we're pre -- we are prepared here at our hearing to present that evidence that will show the common architectural theme. And on the -- on the point of clustering that was considered. It was considered wrong, as I explained to you a minute ago. And there was no evidence to support that there was any decision or any -- any decision made in the application pertaining to whether or not this would be injurious to the neighborhood or to adjoining properties, and certainly nothing having to do to the St. Raphael to the north. There was no submissions or evidence that was placed in the record, because there was no record, as to whether or not this was injurious to the neighborhood. So for those -- I do have some other arguments, but for those primary reasons, we think that this -- that you cannot divorce the two issues because that is the issue of what happened at the SDP level because that was what she has testified that she has relied upon, the record from that, and we claim that there is no record whatsoever. So those are our primary arguments. Page 260 March 9 & 1 O, 2004 I would like to ask that, while we're at it, that all of the PUD pertaining to Pelican Bay be introduced into evidence. We've had parts that have gone in. You do have the ability to take judicial notice of your own ordinances, and we ask that you consider the PUD from Pelican Bay. Probably the best -- it has been amended a couple of times, but 89-35 probably is the ordinance that shows that the best, and we would ask you to consider that. CHAIRMAN FIALA: Thank you, Mr. Pritt. Appreciate it. Mr. Raia? MR. RAIA: Madam Commissioner, Commissioners, I was under the impression that I would have been given more time to talk as opposed to having over a hundred of the -- my fellow residents requesting three to five minutes each, and that I would have saved time. I honestly feel that 10 minutes would -- would not do justice, and if I knew this before, I would have had everybody in the room speak. But since -- since I am going to be limited, I'm going to have to narrow this down to points that I really feel important. CHAIRMAN FIALA: If you can. COMMISSIONER COYLE: Mr. Raia? MR. RAIA: Yes, sir. COMMISSIONER COYLE: If you want to have everybody in the room speak, I'd be happy to have you stay here for -- for the time to do it. And if that's what you'd like to do, I'll be here to listen to them, and I imagine the rest of us will be, too. MR. RAIA: I'd appreciate that, if the board would condescend to that, I -- Madam Chairman, is that acceptable? CHAIRMAN FIALA: You mean, and then everybody limited to three minutes, including yourself-- MR. RAIA: I will call them back, yes. Page 261 March 9 & 1 O, 2004 CHAIRMAN FIALA: But Mr. Raia, what we have to do, in all fairness, is we have to make sure that every side gets the same amount of time. And so what I'm trying to do is -- MR. RAIA: And I appreciate that. CHAIRMAN FIALA: -- is bring this together in -- and so if you would -- as -- I appreciate that you agreed to do it for 10 minutes, and that's great. And we'll break for a lunch, and then we'll move on. MR. RAIA: Are you saying I'm limited to 10 minutes? COMMISSIONER HALAS: Yes. CHAIRMAN FIALA: Yes. MR. RAIA: Well, I thought I heard other than that from the other commissioners, but if I'm limited to 10 minutes -- COMMISSIONER HALAS: Ten minutes. MR. RAIA: I don't think I can deliver everything in 10 minutes. And I would have to open up the floor to anybody that wants to speak to try to get the rest of the information in, but -- CHAIRMAN FIALA: Commissioners, do any comments? COMMISSIONER COLETTA: The only comment I got-- I got no problem with him having 10 minutes and opening the floor. We're here for the people. MR. WHITE: Madam Chair? CHAIRMAN FIALA: Yes. MR. WHITE: Perhaps this will help. I recognize we're operating somewhere in the world of a consolidated type of a case here, and I think it's fair to say that as to 7(A), there's an entitlement to 10 minutes for a speaker, and an entitlement under 7(B) for 10 minutes for a speaker. And I don't know how we divide between the two in terms of the facts and the concepts and the arguments that Mr. Raia wants to make. But it seems to me that it's at least some way to be able to afford some greater amount of time under our rules. Page 262 March 9 & 1 O, 2004 COMMISSIONER HENNING: Total of 20 minutes, combine it. CHAIRMAN FIALA: Do you want to do that, Commissioners? COMMISSIONER HENNING: Well, I -- my opinion is, we're here to hear this case today, and you have a representative for the community. Let him speak, and-- CHAIRMAN FIALA: For 20 minutes, you want to give him? COMMISSIONER HENNING: -- and-- yeah-- CHAIRMAN FIALA: Okay. COMMISSIONER HENNING: Whatever, half an hour. CHAIRMAN FIALA: Commissioners? COMMISSIONER COLETTA: Well-- COMMISSIONER HENNING: But -- and also let the public speak. CHAIRMAN FIALA: Oh, well, we're going to let the public speak. We always do. I just have to make sure that we have some time limitations onto this -- on this, because if everybody wants to get up like Mr. Raia, now the -- now the opposing side is going to say, well, he's had 20 minutes, now we want 20 minutes, and we're going to be here far into the evening, and so -- let's get back on track, please. COMMISSIONER HENNING: Well, Madam Chair, Madam -- COMMISSIONER COYLE: Can I make a-- COMMISSIONER HENNING: Just one minute. CHAIRMAN FIALA: Wait, I've got three, one, two, three, okay? Commissioner Coletta? COMMISSIONER COLETTA: Thank you very much. I -- I have no problem with the gentleman speaking for 10 minutes. I don't think that we should restrict the rest of the audience because he's going to speak for 10 or 20 minutes and not be able to hear their opinions. Page 263 March 9 & 1 O, 2004 CHAIRMAN FIALA: He restricted them. COMMISSIONER COLETTA: And I don't think that's right. I resent that. I want to hear from each individual person what they have to say. I think 10 minutes is fair for you, and then we can go to the rest of the audience for three minutes. And even if they repeat the same message over and over again, that's fine. We're here to hear the public, not one or two individuals. If we grant you 20 minutes, I want to have 20 minutes for everybody, including the audience. CHAIRMAN FIALA: Okay. Please, folks. MR. RAIA: No, please. COMMISSIONER COYLE: anything at all. Commissioner Coyle? After that, I'm not going to say CHAIRMAN FIALA: Commissioner Henning? COMMISSIONER HENNING: Madam Chair, you are the chair CHAIRMAN FIALA: Yes. COMMISSIONER HENNING: -- of this, and in -- I appreciate your asking the colleagues, but the bottom line is, you're conducting the meeting. You're setting the rules for the meeting, and I will support you, whatever you decide. CHAIRMAN FIALA: Thank you so much. you, than Go on with 10 minutes, sir. MR. RAIA: Just 10 minutes? CHAIRMAN FIALA: Yes, please. MR. RAIA: I will have to try to cut this down. All right, thank thank you. CHAIRMAN FIALA: And start the meeting (sic) now rather when he -- Page 264 March 9 & 1 O, 2004 COMMISSIONER HALAS: I'd like to say that I'd like to hear -- anybody that wants to speak has the right to get up and speak -- CHAIRMAN FIALA: Certainly. COMMISSIONER HALAS: -- and I think we ought to limit to three minutes. But I hope that everybody can accommodate the needs (sic) that they need to say in that time frame. Thank you. MR. RAIA: The only reason for my request for more time is that these people have made me their spokesman -- (Applause.) MR. RAIA: -- and they wanted me to speak on their behalf, and it has been prepared accordingly. But they are very willing to fill in, if I'm denied that privilege. I don't consider it a right. It would be a privilege. CHAIRMAN FIALA: Okay. MR. RAIA: You want-- CHAIRMAN FIALA: Are you addressing 7(A) or 7(B), or both? MR. RAIA: You know, I really don't care. I'm a member of the foundation and a member of the Pelican Bay Property Owners' Association, so whichever one you want. COMMISSIONER HALAS: Madam Chair, can I request that he be given 20 minutes? CHAIRMAN FIALA: Well, I was just going to -- I was going on to -- if he was addressing 7(B) well, then maybe he would also want to address another 10 minutes to 7(A) -- I can't do that for everybody else, though, Mr. Halas. COMMISSIONER HALAS: I understand that. CHAIRMAN FIALA: I have to just -- you know, if we're going to do this once, that's all we're going to do, and then we're going to limit everybody else to -- COMMISSIONER HALAS: Can I ask one question to the presenter? Page 265 March 9 & 1 O, 2004 MR. RAIA: Yes. COMMISSIONER HALAS: Are -- you're to cover both areas, 7(A) and 7(B)? MR. RAIA: I presume I'm going to cover everything. COMMISSIONER HALAS: Is 20 minutes going to be sufficient to cover both of these? CHAIRMAN FIALA: You betcha it is. COMMISSIONER HALAS: I guess you got -- I guess we got -- MR. RAIA: I got the message. COMMISSIONER HALAS: -- our marching orders. MR. RAIA: I got the message. CHAIRMAN FIALA: Well, now we're at five to 12:00, and -- and if you want to continue on, you can. MR. RAIA: If you want to break at 12:00, I would just as soon we break now. I mean, and that's your call. CHAIRMAN FIALA: Let's do that, because, I'll tell you, I -- I had committed myself to -- MR. RAIA: Sure. CHAIRMAN FIALA: -- conducting something at noon. They know that I'm going to be running a little bit late, but I had done this a month ago. And I didn't realize we were going to have this -- this issue as a holdover to the -- MR. RAIA: On a Wednesday. CHAIRMAN FIALA: -- next day. So, if you don't mind -- and I would prefer to hear everything you have to say. MR. RAIA: So we-- CHAIRMAN FIALA: Okay? MR. RAIA: -- adjourn until 2:00 then, you say? CHAIRMAN FIALA: Until 2:00, and then we'll be back. MR. RAIA: I accept that. That's fine. Page 266 March 9 & 10, 2004 CHAIRMAN FIALA: Very good. Thank you, sir. MR. RAIA: Thank you. (A luncheon recess was taken.) CHAIRMAN FIALA: 2:00 p.m. and we're back in session. And, Mr. Raia, you're up to bat. MR. WEIGEL: And as he starts we'll note, I think from the discussion just before the noon adjournment, that Mr. Raia indicated that he was speaking in regard to both petitions, representing a significant factor of the public and that, if allowed to speak, that a significant factor of the public, number of the public would, I believe his assurance was, would not be getting up to speak. Ultimately they have their own opportunity or not to sign up and speak. But that was my understanding and what we heard before that time. CHAIRMAN FIALA: And that he would have 20 minutes. MR. WEIGEL: Is that correct, Dr. Raia? MR. RAIA: That's correct. CHAIRMAN FIALA: Twenty minutes. That's correct. Yes, we've given him 20 minutes and he said he want -- many people wanted him to speak for them. MS. FILSON: Okay. CHAIRMAN FIALA: Mr. Raia. MR. RAIA: Good afternoon. Honorable Commissioners, my name is Ted Raia. I am here speaking on behalf of the Pelican Bay Property Owners Association and the Pelican Bay Foundation pursuant to the notice of appeal filed and served on October 27th, 2003. I'm not an attorney and what follows is my opinion, and facts presented are, in my opinion, facts. However I do have some experience. I served the town of Harvard, Massachusetts for 16 years. Three years on the Conservation Commission, ten years on the Planning Board and three years on the Zoning Board of Appeals. Over the entrance to the City Hall in Page 267 March 9 & 10, 2004 Cambridge is inscribed "if laws are not enforced the people are not well governed." It is a year since we appeared before and we were advised how to address our grievance with the Cap d'Antibes. You told us that we must find an opening, an error in the process. We found that opening. Now you are the quasi-judicial body that will publicly hear for the first time how the county staff made errors in interpretation, did not seek and was not provided necessary material, but was provided inaccurate information. Therefore we are requesting the rejection of the interpretation and resubmission of the site plan. I will go through the approval process of Cap d'Antibes step by step so that we all have a clear understanding of it. To expedite side plan approval process, approvals are made without public notification. Joe, you said page up. UNIDENTIFIED SPEAKER: Page down. MR. RAIA: Page down. UNIDENTIFIED SPEAKER: Sorry. MR. RAIA: Thank you. The Land Development Code is like a box in which the Commissioners place their requirements at a public meeting. A planned unit development is a box within a box, also placed at a public meeting, the rationale being if the developer uses only what is in the box for a site plan approval, there is no need for a public hearing. Therefore, the onus must be on the developer and the staff to act in good faith and strictly adhere to the code. If not the public has no say and no protection, which appears to have happened with the Cap D'Antibes. As a result of conducting public hearings, discovery. As a result of not conducting public hearings, discovery of the existence of the Cap d'Antibes was delayed, even though the plans were on file since at least 1999. During the interval, purchases in Pelican Bay were Page 268 March 9 & 10, 2004 based on the knowledge there would be two additional high-rise buildings similar to the St. Pierre at Waterpark Place. All foundation and realtors' maps show two separate lots. The Collier County Appraiser's map shows two lots with different folio numbers and different street numbers. MR. WHITE: Madam Chair, I apologize for having to interrupt, but at your request you had asked us to have -- help you to draw a line of relevance. I don't recall any of this being a part of the official interpretational requests of the staffs response and I'm not sure what -- in what way it can help you with your ultimate decisions today. So if there's some way that the speaker could focus on those issues today I think -- MR. RAIA: Madam Chairman, I -- in contrary to what Mr. White is saying, I do feel I'm focusing on the issue because this the only time the public has a chance to tell you anything. CHAIRMAN FIALA: Okay. MR. RAIA: And I think we ought to be given a little leeway -- CHAIRMAN FIALA: Absolutely, that's fine. MR. RAIA: -- to present this. CHAIRMAN FIALA: You pick your 20 -- MR. RAIA: Now, if I'm fully out of line or presenting erroneous material, by all means, correct me. CHAIRMAN FIALA: You have got your 20 minutes. As long as you're focusing on the issue, you use it. MR. RAIA: He's made me lose five minutes already. CHAIRMAN FIALA: No, two minutes. MS. FILSON: No, I turned it off while the attorney was speaking. CHAIRMAN FIALA: Oh, did you? Great. Did you hear that, Mr. Raia? MR. RAIA: That's okay. I'm just joking. In fact the notice for Page 269 March 9 & 1 O, 2004 the Waterside Shops public hearing mailed on December 22, 2003 has a site map showing the two lots, and I believe this -- whoops, pressed the wrong button here. This -- here you can see -- well, you can't see but I can see it. But there -- on that site plan map that was just mailed in December the four lots are showing. How is the public to know that the St. Margot and the St. Armand are replaced by the Cap d'Antibes when the county still shows the lots on a site map? This may not be important to the staff but we want you to know how the process affects your constituents. However, Pelican Bay should have been an exception because the approval process does require that plans be first referred to the Pelican Bay services division. The County Planning Director requested of the developer please submit for our records evidence that the site plan has been reviewed and approved by the Pelican Bay improvement district. The letter of approval signed by the administrator was sent on July 18th, 2001. Two days later the county staff approved the site plan. However, the plans were never reviewed and approved at a duly publicized meeting of the Pelican Bay services division. In fact, the Board never knew about the approval and the residents who attend these public meetings were denied the opportunity to voice their concern. This violation of the Sunshine Law proved detrimental to the community of Pelican Bay. We considered a letter requested by the Planning Director to be invalid and a reason for rejection of the interpretation. On Page 3 of the notice of official interpretation the planning staff claims that only high-rise building are permitted. She already corrected herself, but I have two points to make. You know, since this -- and I'll ask this in the form of a question. Since this correction is just made now and I'm just learning about it now, does the 30 days start all over from this moment7 Page 270 March 9 & 10, 2004 The second-- the second point I would like to make is that, since they relied on the fact that only high-rise buildings were permitted in Group 4 and that is why the cluster provision applied to them, now that she knows that single family units are allowed, on what grounds does the cluster provision still apply to high-rise buildings? On the same page they also admitted that clustered high-rise buildings are not permitted in the Land Development Code. The staff should have stopped the approval process here. If something is not permitted in the Land Development Code it should not be approved. Section 2.15 of the planned unit development states definitions shall be as contained in the zoning ordinance of Collier County. There is no reference to using a dictionary, yet the staff decides to use a dictionary and concludes that a cluster is just having more than one building as long as they are the same sort of things gathered together. The dictionary definition of cluster is more specific than that. It is having a number of things of the same kind brought closely together. The bringing of like things together creates space. In the case of Waterpark Place, you do not have like things brought together to create space. The Cap d'Antibes is not a like thing. At 650 feet it is unlike anything else in Pelican Bay or in the county. It is simply and oversized building that is taking more space, including the required setbacks, and has nothing in common with cluster. The planning staff errs in interpretation of 7.04.03. Once the staff redefined cluster to mean just having more than one building setback requirements applied only if you had one building on a parcel. When you have more than one building that are the same sort of thing, and you have the developer's architect claim there is a common architectural theme, setback requirements no longer apply. And this became a matter of right. I will graphically demonstrate this section. And the -- Section 7 deals with Group 4. Page 271 March 9 & 1 O, 2004 In Group 4 of Pelican Bay only high-rise and single family and multi-family units are permitted. No hotels or commercial buildings are allowed. Now here we have two buildings on two parcels. These are 200-foot buildings. The Section 7.04.03, Paragraph A, defines setback distances between buildings very clearly. It says the setback distance between two buildings shall be one-half the sum of the buildings. So we have -- two 200-foot buildings equals 400 feet, half of that is 200 feet. And, as you can see, the distance between these two buildings is 200 feet. Very simple, very easy to understand. Section B has to do with property lines. It states that the distance from a property line should be one-half the height of the building. And, as you can see, it's 100 feet. This is the way Pelican Bay was developed and existed up until the end of the '80s. Now, we had two different buildings -- let's call it the St. Pierre and the St. Laurent. And now you have an architect come in from the developer to say that these two buildings are now similar in design. Paragraph C is where the problem comes in for the staff and everyone else in this room. In the case of clustered buildings with a common architectural theme, these distances may be less. Well, it doesn't say how much less they can be. They can be zero. Now, if the staff was to apply the cluster section of the Land Development Code, they could end up with this. Here you have the two high-rise buildings brought closely together, still on the same two parcels of land, creating a decent amount of space. However, that cluster section does not apply to high-rise buildings, only to single units. So the staff goes one step further. They redefine cluster to mean all we have -- all that happens for our cluster when you have the common architectural theme is that you just reduce the setbacks. It has nothing to do with space. So you end up with this. You end up Page 272 March 9 & 1 O, 2004 with a building that fills any space that you could create with -- with the reduction of setbacks. Here we have the building with 50-foot setbacks. This is as a matter of right. Right now, if you accept the staff's interpretation of 7.04.03, Paragraph C, this is a legal right of, of a developer. But he needn't stop there because, since the setbacks can be reduced to zero, the building can grow to this size. But wait a minute. We really don't have to stop there, because, if right next door to it the developer had another building that staff defined as being clustered building and the architect said it was a common architectural theme, you can add another building to it. And you can add another building to it, and you can add -- that Cap d'Antibes could extend from the Cap d'Antibes all the way down here to government center as a matter of right. The PUD section of the Land Development Code states, the development plan for a PUD district shall provide harmonious grouping of structures and for appropriate relation of space. Waterpark Place is not a harmonious grouping of structures and there simply is no space. MR. WHITE: Madam Chair, I apologize. This is the point where, with respect to Mr. Volpe's testimony, we drew the line. And I just want to ask you at this point if you think the discussion about this harmonious and injurious, which was never the subject of any interpretations, ought to be brought into the record now or not? And I apologize to the gentleman for interrupting. CHAIRMAN FIALA: Commissioner Henning. COMMISSIONER HENNING: I -- I agree. But I think it's our duty to let him speak-- MR. WHITE: That's fine. It's your decision, I'm just trying to do what you had asked. COMMISSIONER HENNING: -- it doesn't pertain to the -- the appeal of the Planning Director's interpretation of the code but I think Page 273 March 9 & 1 O, 2004 that we need to -- COMMISSIONER COYLE: If I could add to that? I would ask that you continue to notify us if you feel that there's someplace we're getting off point. My personal position is that I'm willing to listen. I may disregard anything he has to say about this, because much of it, as I said at the very beginning, is clearly not related to the issue at hand. And -- but he certainly has the right to speak and use his time however he wishes to use his time. MR. WHITE: My true intent, Commissioners, is to help him to be able to more productively use his time. COMMISSIONER COLETTA: I understand. MR. RAIA: Well, I do appreciate the help, but I feel due process is not served if I talk and nobody listens. I think the purpose of a public hearing is for people to talk and listen. And then they can make a decision. (Applause.) MR. RAIA: Excuse me. I wish -- please don't clap or boo or anything. Thank you. CHAIRMAN FIALA: Turn his light off again, would you; would you, Sue? MS. FILSON: I did. CHAIRMAN FIALA: Just-- MS. FILSON: Oh, right now? CHAIRMAN FIALA: Yeah. It's back on. Yeah. Commissioner Coletta had something. COMMISSIONER COLETTA: Yeah. I just want to say I agree with Commissioner Coyle. I don't have any problem separating what we're supposed to be dealing with and other matters that he wants to bring forward. It's his 20 minutes to spend as he wishes. Although, however, I do want to be notified because I may miss something and Page 274 March 9 & 1 O, 2004 believe that it's part of it. Somehow we have to come up with some sort of way, if it's nothing more than just raising your hand and allow him to continue to speak. We'll know at that point in time that there is an objection from you and that that doesn't quite fit into what you're talking about. Does that sound agreeable so that we don't have to be interrupting continuously? MR. WHITE: As long as my arm doesn't get tired. COMMISSIONER COLETTA: Okay. We'll be watching every minute. COMMISSIONER HENNING: As long as the court reporter writes it down. MR. RAIA: Well, you know, it really shouldn't because, as far as I'm concerned -- I'm just a lay person here -- I think the staff is supposed use the entire Land Development Code in reviewing a site plan and I'm only bringing up things that they may have overlooked or they looked at and didn't want to use. COMMISSIONER COLETTA: And that's fine. Continue, sir, and I -- I'm sure that we've found a way to be able to make this flow. MR. RAIA: Thank you. The staff also errs in interpretation of common architectural theme. The Land Development Code, Section 2.6 -- and I want to, you know, the -- Mr. Hardt made a typo and said 2.8, which deals with commercial. Obviously he meant to deal with -- with residential. And we're talking about the Land Development Code, Section 2.6.27.46, states that the architectural style of dwelling units shall be similar in design. It states other things but we'll focus on similar design. The staff never visited the site to see the existing buildings nor were they provided views of the buildings, including the Cap d'Antibes, which would have been material necessary under Section 2.05, which they frequently reported on. The staff relied solely on Page 275 March 9 & 1 O, 2004 letters from the developer's architects. COMMISSIONER HENNING: Let the record reflect that Patrick White raised his hand twice. MR. WHITE: And I just want to point out that there's no way otherwise that the record would know that my arm was up or down. COMMISSIONER COLETTA: Good point. MR. RAIA: I don't know how to interpret that. What part of that, that-- if the staff was allowed to make the decision without looking at it or knowing about it, then, is that -- MR. WHITE: I'm not here to answer Mr. Raia's questions but if any of the Board members would like to -- MR. RAIA: Hopefully, at the end, if there's a question that could be clarified. Thank you. Here -- here are two of the existing buildings. These are side views. On the left is the St. Pierre, on the right is the St. Laurent. The St. Pierre is a modem building with definite horizontal lines to it, predominantly glass with a lot of curves. The St. Laurent is a stucco classical building with straight lines. All vertical lines are accentuated. Here are rear views on the left and frontal views on the right. On the rear views you can see that the terraces extend out from the St. Laurent and the rails are painted white. The balconies on the St. Pierre are recessed, painted black. And you can see on the frontal view how glass dominates the St. Pierre with more modem lines than the more classical lines of the St. Laurent. These are aerial views taken from the County Appraiser's. On the left you see the St. Pierre having a modified H configuration. It is about 215 feet in width. On the right is the St. Laurent, having a more modified U configuration and is 225 feet in width. COMMISSIONER HENNING: Let the record reflect that Mr. White raised his hand. MR. WHITE: This information is not in the record. Page 276 March 9 & 1 O, 2004 MR. PRITT: We want to be on the record also. About four times now Mr. Yovanovich has walked over there, talked to the County Attorney's office, they've raised their hand and they're playing a game now. Now if Mr. Yovanovich wants to testify, I'm sure he'll have a chance to do that. We don't have the ability to be on the record, Mr. White does, and we would like to have -- CHAIRMAN FIALA: That's fair. MR. PRITT: -- the same consideration. THE COURT REPORTER: Sir, would you identify yourself, please? MR. PRITT: My name is Robert Pritt. MR. WHITE: My point, Commissioner, solely was that there have been a number of times that certainly I would have raised my hand sooner. I'm trying not to interrupt the gentleman's presentation. But any information that's being presented to you that wasn't part of the appellate record when it was timely supposed to be filed, is essentially what we've advised you could be considered as new evidence. And there's no testimony by anyone that this was not discoverable before the time period to have filed an appeal. Now the information may be a matter of public record in the property appraiser's and all of those things may be true, but for the purposes of this appellate proceeding it is truly not appropriate, so -- and it has nothing to do with Mr. Yovanovich's approving us or not. CHAIRMAN FIALA: Well, he's not -- he's not going to be doing that anymore. MR. WHITE: There probably would be a -- there would probably be a continuing objection, at least on my part. MR. RAIA: Madam Chairman, I want to stress to Mr. White that I am doing this because I expect due process. This is the only public hearing I am afforded. I want to be heard. CHAIRMAN FIALA: And we want you to be heard. Page 277 March 9 & 1 O, 2004 MR. WHITE: I'm not trying to stifle that, sir. CHAIRMAN FIALA: Right. MR. RAIA: We do know that the Cap d'Antibes is composed of two towers, one measuring 328 feet, the second 265 feet, and connected at the base by a 57-foot wide, 4-story structure, giving an overall dimension of 650 feet. The footprint of this building measures 61,000 square feet. The footprint of the St. Pierre is just 13,000 square feet. Now, to give you some idea of the St. -- of the Cap d'Antibes, the Cap d'Antibes would extend from the southern margin of the St. Pierre and it will extend clear up to the northern margin of the St. Laurent and would fill in all of this space, this -- the distance between these two buildings which, by the way, is 230 feet, at -- would -- at -- over at -- once over 40 stories there would be a 57 feet separation between these two towers. And those buildings are much more massive than these buildings. As I mentioned, it's 61,000 square feet. How are these three buildings similar in design? Do we really need an architect to tell that they are or are not a similar design? Did the Board of Planning Commissioners make this determination? How did letters from the developer's architects come to be used? This is not authorized in the PUD nor in the Land Development Code. Again, the staff reached outside the box when they decided to have the developer's architects interpret the Land Development Code to the benefit of the developer. If the staff was not able to make this decision it should have been made by a completely independent architect, preferably with academic standing. An alternative was to have the foundation or the Pelican Bay Property Owners Association provide the opinions of disinterested architects at a public hearing. Two identical letters are from architects involved in the design of Waterpark Place. The third architect avoids saying similar in design. He states: The architectural style of the Page 278 March 9 & 1 O, 2004 proposed last building in Waterpark Place is similar in nature. The nature of a building and a tent is that they both provide shelter but that is hardly similar in design. How could this letter be accepted? This is the original site plan that was approved back in 1991 showing the location of four buildings, one, two, three, and four. This is the revised site plan showing the replacement with the Cap d'Antibes. Section 2.05 of the PUD states the request shall include materials necessary to demonstrate that the approval of the site plan will be in harmony with the general intent and purpose of this document, will not be injurious to the neighborhood or to adjoining properties or otherwise detrimental to the public welfare. The developer failed to comply with this section for two reasons. First, a 650-foot building is not in harmony with Pelican Bay. Second, the location of the St. Raphael was not provided and the staff made no effort to determine it, which is material necessary for approval. Why include the Sandpiper parking lot and exclude the location of the St. Raphael? Surely if you can show the staff a parking lot location you could show a location of a building. The only time the St. Raphael is shown is on a schematic plan that is inaccurate as to location of buildings and setbacks. This is part of the large plan, but I'm just including the part that has the St. Raphael. The St. Raphael shows that there are 100-foot setbacks as required between the property line. Again, 100-foot setback between the property line. And all these 100-foot setbacks are equally measured between -- when you look at other buildings. It is strange that the setback between the Cap d'Antibes and the property line is not shown. Not only is it not shown, it's not scaled properly. This should be just 50 feet. This should be half of what this distance is here. Instead it is demonstrated to be more than 100 feet. I consider this submission of inaccurate information. Furthermore, the Page 279 March 9 & 1 O, 2004 alignment of these buildings generally reflect that they are in a north-south alignment when in reality they are east-west. Is that my bell? CHAIRMAN FIALA: That's your bell. MR. RAIA: Suppose I had three people stand up and say they will not speak. Can I finish? CHAIRMAN FIALA: No, sir. You know what -- I really stress this. MR. RAIA: Oh, okay. I feel I have more important information and I will leave this here. The next party that comes up, I'll stay here, you do the speaking and I'll show you where to read from. Well, this is going -- we're going to do it. CHAIRMAN FIALA: But I just have to be fair. I hope you understand that. MR. RAIA: I'm trying to be fair. CHAIRMAN FIALA: Thank you. Okay. Now, do we hear the speakers for this side or shall we hear all of the presenters first? I would guess that the next presenter would be -- yes. I think we should hear all of the presenters first and then we will go from there. MR. WHITE: I thought we were, Madam Chair, already into public testimony, public speakers. CHAIRMAN FIALA: Okay. Pardon me? MR. VOLPE: We would like to have Dr. Trecker speak next. CHAIRMAN FIALA: Okay. So then do you want to hear all of your speakers -- MS. FILSON: Do I have a speaker slip for him? CHAIRMAN FIALA: -- first on this side and then go to the other side. Is that what you are saying? MR. VOLPE: Madam Chairman, I thought -- and correct me if I'm mistaken -- I thought the procedure -- I was going to present from a legal perspective as the attorney. Page 280 March 9 & 10, 2004 CHAIRMAN FIALA: You already did that. MR. VOLPE: I did. You're right. We had a team. And Dr. Raja was accorded some additional time speaking overall for 20 minutes. We have an expert and I thought that was a part of the time as a part of the petitioner's presentation. And then we were going to take public testimony from all of the other registered speakers. And that -- that's the procedure. CHAIRMAN FIALA: You're part of the team. You've got-- now you just have public speakers; is that correct? MR. VOLPE: Well, we had one other member. CHAIRMAN FIALA: We are not doing another 20 minutes. MR. VOLPE: No. This was ten minutes. CHAIRMAN FIALA: No, no, no. We are not doing ten more minutes. We gave Mr. Raja 20 minutes. We've got to start put -- pulling in here, we can't just -- you know, we've got to start confirming this, condensing this, right? I'm happy to hear your next speakers, five minutes each. I've given you that rather than the three minutes, up to ten speakers. I've given you that. But, you know, Mr. Volpe, as much as I want to support everything that you're doing, I can only support so far, please. MR. VOLPE: We're sensitive to that and I guess -- you are the Chair. I would just point out that under your ordinance our experts are provided with ten minutes. We probably won't use the entire ten minutes but that is the ordinance under which your quasi-judicial proceedings are to be held, and it specifically says that we're entitled to 10 minutes per expert. CHAIRMAN FIALA: So that means this side also gets their ten minutes, ten minutes, ten minutes for each of your ten minutes, right? MR. VOLPE: I don't know who the other side is, ma'am. We are -- we are the appellant. You are the appellee. As far as I'm concerned those are the only parties to this appeal. The developer is here. He's Page 281 March 9 & 10, 2004 part of the public. He has an interest and he can speak, but I assume he's going to be confined to three minutes. He is not, in my opinion, a party to this appeal. This is our appeal. It is the Pelican Bay Property Owners Association Appeal and the Foundation's appeal, from our interpretation. It is your staffs interpretation that we are saying was contrary and so they are not parties to this appeal. CHAIRMAN FIALA: Do you feel we should be listening to the testimonies? COMMISSIONER COYLE: May I? CHAIRMAN FIALA: Sure, please. COMMISSIONER COYLE: Yeah. Mr. Volpe, I don't think any of us want to limit anyone's ability to speak to an issue. The problem is I don't think that any of us need to be told 15 or 20 times that the setbacks are not correct in your opinion, and that there is no greenspace created as a result of clustering, and that, in your opinion, the architectural consistency doesn't exist. I've got the point, okay? And what I'm looking for is evidence to support your contentions, not just a repetition of the same -- same contentions throughout this process. And I know that the people in this audience want us to make a decision here and I would like to get to the point where we can begin to deliberate on the key issues. And, quite frankly, the issues are not complex. There are essentially three points, and you've pounded on them consistently. And what I would ask is that, if you're going to have other people speak, let's not repeat the same thing over and over and over. MR. VOLPE: And I think, Commissioner Coyle, that's what we're trying to do. We understand the points. Dr. Raia is the spokesperson for the group. He's spent more time than all of the rest in putting forth a presentation. The other people are simply members of the public. All they are going to do is express their Page 282 March 9 & 1 O, 2004 concerns about what's happened here. We're trying to avoid that repetition but Dr. Raia has a few more minutes of his presentation that -- he's offered to say that there will be three or four other people from the public who will waive, who won't speak. So we're sensitive to that but we need to make a record. We don't know what the record is that you have, so -- we understand you have -- you have framed the issues, but we need to be able, under our due process, to be able to give you additional information, what information there is, so that you can deliberate and make your decision. And that's all we are trying to do. But we're not going to repeat ourselves over and over again. CHAIRMAN FIALA: So we can't introduce new information either, right? I mean, we have to, in -- we have to be addressing the subject at the hand; is that correct? I mean, this is what we were outlined by the attorneys and when we first began. We cannot introduce any new information or evidence. We have to address what we're here to address, and that is the interpretation by the -- by the Director of-- what department are you any more? By Community Development Department. COMMISSIONER COYLE: Could I ask one more question? MR. VOLPE: Certainly. COMMISSIONER COYLE: And I would like to -- I'd ask the audience this question. You know, I would like anyone to please stand up or hold up your hand if you believe the staff made an error in determining the setbacks, if you believe the staff made an error in using the clustering concept, and whether you believe that using the clustering in this particular case actually reduced the amount of open space in this development. Would you please hold up your hand if you believe that? (A show of hands.) COMMISSIONER COYLE: Now, okay, I got the point. Okay. Page 283 March 9 & 1 O, 2004 MR. WHITE: I would just like to let the record reflect that everyone in the room that I could see raised their hand. COMMISSIONER COYLE: Except Rich Yovanovich. MR. YOVANOVICH: Thank you. MR. WHITE: I wasn't looking. UNIDENTIFIED SPEAKER: And some out there. COMMISSIONER COYLE: Okay. And some out there. So you see, you've just communicated to all of us that most everybody in this room thinks an error was made and you don't want this -- this development. We understand. And we have certain legal requirements with respect to the evidence to be able to reach a conclusion concerning that. So, at least from my standpoint, I don't need to be told a hundred times today that you disagree with those issues. I don't need to be quoted from the Land Development Code or the Growth Management Plan that it should have been done a different way. I've got that point. I know what you believe. I know what you're saying. So. I -- I'm just asking you, if you have additional speakers, in the interest of letting us -- these people don't want to stay here all night. In the interest of helping us reach a decision here, let's cut out the repetition. We understand you don't like it. And if you have any additional substantiating information we haven't heard yet, I want to hear it. Okay? MR. VOLPE: We have -- Commissioner Coyle, members of the Board, we do have an expert who is an architect who we would like to have address the Board to speak professionally and -- in a professional opinion on the questions about common architectural theme. CHAIRMAN FIALA: And you want to give him ten minutes? MR. VOLPE: And under your ordinance, Madam Chairman, expert witnesses are entitled to ten minutes. We'll try to confine -- I'm Page 284 March 9 & 1 O, 2004 saying at the outset, we don't want to use up additional time or waste your -- CHAIRMAN FIALA: Maybe it's just because, as Commissioner Coyle said, it's been so repetitious. MR. VOLPE: Sure. CHAIRMAN FIALA: After you hear it, you know, so many times, you don't want to lose site of what -- MR. VOLPE: And we don't want you to. CHAIRMAN FIALA: Well, rather than argue any more, let's get the guy up here. Thank you. MR. VOLPE: It happens to be a woman and her name is Susan Tate. CHAIRMAN FIALA: Oh, geez. COMMISSIONER HENNING: Madam Chair? CHAIRMAN FIALA: Sorry about that, ma'am. COMMISSIONER HENNING: Madam Chair? MR. VOLPE: Madam Chair, if I may? COMMISSIONER HENNING: Madam Chair. CHAIRMAN FIALA: Yeah. COMMISSIONER HENNING: I would hope that we deal with the issue of the appeal of the Director's interpretation and nothing more. CHAIRMAN FIALA: Right, right. I think you've got that message, right? COMMISSIONER HENNING: Nothing more. CHAIRMAN FIALA: Thank you. MR. WEIGEL: Madam Chair, County Attorney speaking. While the other attorneys are bolting to the podiums, I'd just indicate that we view again that the standard of review has to do with the limitation of material and statement and argument and issue that has been provided within the 30-day period of the appeal. And so if Ms. Page 285 March 9 & 1 O, 2004 Tate was not part of the submission of the material or the argument that she's making part of the material of the appeal, then I want you to consider that in terms of limitation. That's what I wanted to say. CHAIRMAN FIALA: Then maybe you can state that for the record, Ms. Tate, when you -- when you begin. Okay? MR. YOVANOVICH: May I ask a question? CHAIRMAN FIALA: Yes. MR. YOVANOVICH: And I'll -- and I'll sit right down. I don't want to get up and continue to make objections. CHAIRMAN FIALA: Please. MR. YOVANOVICH: And I won't. CHAIRMAN FIALA: You're going to have your time. MR. YOVANOVICH: But -- we will -- but I also don't want to use up our time pointing out the many, many points that your staff is supposed to tell you of is what is and is not in the record because it really wouldn't be fair to us to have to continue to point that out. Suffice it to say that what Dr. Raid (sic) talked about was not on the record, and she was not, she provided no information regarding -- CHAIRMAN FIALA: We just asked her to put that on the record. Okay? MR. YOVANOVICH: And I just want to continue to raise that objection and I'll sit down. CHAIRMAN FIALA: Thank you. MR. MUDD: Madam -- Madam Chair? If you could get that -- Madam Chair, this is-- CHAIRMAN FIALA: I just -- I have to stop you for just a second. MR. MUDD: This is the County Manager. All you have to do is -- for the record, because these people are typing, that person was not, didn't state for the record who his name was, who he represents, and they are having problems with voices. Page 286 March 9 & 1 O, 2004 This voice is the County Manager, Jim Mudd. Okay. MR. YOVANOVICH: And in the future, my voice is Rich Yovanovich representing the affected property owner. CHAIRMAN FIALA: And what I wanted to state for the record is in the beginning when we were giving our ex parte I forgot to mention that I've also spoken with Tony Pires. I just noticed him in the audience and I thought, oh, my goodness, I -- so I wanted to make sure that I right that record. MS. FILSON: And, Madam Chairman, just so that I am clear on my direction, Ms. Tate will have ten minutes? CHAIRMAN FIALA: Ms. Take will have ten minutes, as long as you state now, you know, what we've asked you to state, please. MS. TATE: I'm Susan Tate and I'm here to speak on the appeal filed on October 27th, 2003 on behalf of the Pelican Bay Property Association. And my report was submitted, as I understand, in the deadline that was prescribed, and that is what you have in hand. And you may be happy to know that I have condensed my statements to what I believe to be five minutes. I'm a registered architect in the State of Florida, a faculty at the University of Florida since 1972, consultant specialized in compatible design, context and guidelines for designated districts. In academia and in practice we may use standards and principles to develop specific theses or opinions. In that regard I want to comment on the interpretation of the three design features specified in the code regarding clusters. Number one from the code, architectural style shall be similar in design and in use of materials and color. Architectural style may be distinguished by special characteristics of structure and ornament. Style is essentially visual and has no necessary relationship to the function of a building. Architectural styles are recognized by character defining features such as scale, shape and detail. Page 287 March 9 & 1 O, 2004 Regarding scale. The scale of the proposed buildings creates a visual imbalance rather than continuity of a style. Moreover, the extensive size of the proposed Cap d'Antibes structures would obscure lines of sight within the parcel from neighboring sites and from public byways. This nonconforming scale would create a visual impact that would be injurious to the context and to the community at large. Regarding shape as a feature of architectural style. The overall shapes of the St. Pierre, St. Laurent and Cap d'Antibes are not similar. This is apparent in the footprints and elevation profiles. Likewise, the proportion of height to width of the Cap d'Antibes building is not in harmony with the existing buildings. Regarding symmetry as an element of architectural style. The St. Pierre and St. Laurent have facades that are primarily symmetrical. The facade designed for each Cap d'Antibes structure is asymmetrical with a domed tower. One structure has three projecting bays, the other has two. Regarding pattern and material. The St. Pierre visually emphasizes horizontal bands of glass. Expressed in the glass and rounded edges, the texture of the St. Pierre material is decidedly smooth. While the visual rhythm of the St. Pierre is smooth, that of the St. Laurent is staccato and dominated by solid materials. The design for the Cap d'Antibes is not in harmony with either. Regarding detail. The most obvious element of architectural style is often the detail. The absence of ornament on the St. Pierre suggests a relationship to the international modernism. In contrast, the St. Laurent is detailed with vertical elements, this feature recalling early skyscraper expression of the skeleton frame as we might see in the Chicago style. Yet a third architectural style is suggested in the design for the Cap d'Antibes structures. The domes, arched windows, parapet balustrade are classical in origin. Therefore, the existing and the proposed buildings do not incorporate the required criterion based Page 288 March 9 & 1 O, 2004 on elements that constitute architectural style. From the code, regarding Number 2, signature entranceway which serves to identify the development as having a common architectural theme. Theme is defined as a unifying or dominant element or motif. Whether in music, literature, art or architecture, the theme continues throughout the work. The existing and proposed buildings of Waterpark Place lack a similar design feature or architectural style that would establish such a theme. Thus, no elements were found that would comprise architectural style that is similar in design, and therefore, no common architectural theme can be established. Number 3 from the code, street materials, signage and lighting shall be complementary. Based on the analysis regarding design features one and two, that there is no architectural style that is similar in design and that there is no common architectural theme, therefore there is no common pattern or style or theme with which to be complementary, and the project could not meet, thus, the required criterion to include the listed complementary features. Finally, regarding clustered development. The Collier County Land Development Code, in conformance with the universal concept of cluster development, states that the intent is to cluster buildings in return for more common open space intended for recreation or public use, less urban sprawl, preservation of natural features and conservation of environmental resources. Legislation allowing cluster development which originated in single family neighborhoods is based on improved conditions for society, such as those identified in the Collier County Land Development Code. Compatible and harmonious scale is an essential feature of visual context of neighborhoods and districts and communities. The proposed scale would be a deviation from well conceived land development regulations, from the spirit of cluster development, from Page 289 March 9 & 10, 2004 visual harmony within the community, and from the three design requirements of the code. Thank you. CHAIRMAN FIALA: Thank you. (Applause.) CHAIRMAN FIALA: Commissioner Henning? Oh, I'm sorry, excuse me. Now we should probably listen to the rest of the testimony first and then hear our speakers. That's the way we usually do it anyway. Okay. So we've heard from staff. We've heard from the appellant -- appellate -- appellant. Yes. Did you have -- Sue? MS. FILSON: I have another speaker after Susan Tate and I don't know if this is an expert witness but it's James Weaver. It was in their same group. COMMISSIONER COYLE: Apparently isn't. CHAIRMAN FIALA: Apparently isn't. Okay. So then we go on to the property owner? MR. PRITT: Madam Chair, we haven't finished our presentation. We have -- on behalf of the foundation we have David Trecker, who is the chair of the foundation, who I believe will only be a minute or two. CHAIRMAN FIALA: Oh, okay. I'm sorry. MR. PRITT: We do have an architect, the foundation's architect, and we have a land planner, Mr. Fenton and Mr. Depew. Both of them I think can be beaten into keeping their comments less than the ten minutes. CHAIRMAN FIALA: Very good. MR. PRITT: Well, Depew is not -- he's not answering yet. They will try very hard to do that. CHAIRMAN FIALA: Very good. Thank you so much. I'm sorry, I did not realize you weren't finished. Excuse me. Go ahead. Page 290 March 9 & 1 O, 2004 MR. PRITT: Dr. Trecker. MS. FILSON: So I'm to give these other gentlemen ten minutes as well? CHAIRMAN FIALA: Yes. MR. CRITCHLOW: Madam Chair, Richard Critchlow on behalf of the property owner. So that Mr. Yovanovich doesn't have to stand up all the time, let me take his place for this. This is outside of any directed on appeal. It is filed untimely. It is not new evidence and it shouldn't be considered and -- CHAIRMAN FIALA: Well, I don't even know if it isn't new evidence. He hasn't come up to speak yet. MR. CRITCHLOW: We, we -- you will see. We've seen the affidavit which he submitted in the materials which was furnished you-all on March 2nd. So, based upon those and in anticipation, like Ms. Tate, who pretty much read from the same opinion that she provided you-all on March 2, I'm going to assume it's going to be the same type of information. CHAIRMAN FIALA: I have to give them the courtesy of giving their presentation. MR. CRITCHLOW: Okay. I'm sorry. COMMISSIONER HALAS: And at that time will the County Attorney let us know whether this information is relevant or irrelevant to the discussion here at hand? MR. WHITE: Certainly. At this point I can tell you what is going to be testified to is what was in the materials that were submitted. COMMISSIONER HALAS: Okay. MR. WHITE: That would be the case for the entirety of it because of the fact that his evidence is essentially, quote, new and there has been nothing put on the record that indicates it couldn't have been previously discovered at the time the appeal materials were Page 291 March 9 & 10, 2004 submitted. CHAIRMAN FIALA: You know, it's really helping me, though. I mean, some of this is explanation. It's helping me to understand what it is, and maybe, you know -- MR. WHITE: And it may have some, quote, relevance in that regard and it may not be correct to say that it's relevant or irrelevant. But I think the nature of the objection you are hearing from the property owner's representatives and that you've -- has been indicated in our office's memorandum is that this is an appeal process not a new hearing and that information was something that -- CHAIRMAN FIALA: Right. And they are appealing but what they are trying to do is explain their appeal. I think many times we seem to be stopping them and all they are trying to do is explain the appeal. And I would like to just continue to move forward and get this taken care-- MR. WHITE: Commissioner Halas had asked and I'm just trying to give him a complete answer, okay? CHAIRMAN FIALA: Okay. Thank you. MR. WHITE: Thank you. CHAIRMAN FIALA: Go ahead, sir. MR. TRECKER: Good afternoon, Commissioners. As Mr. Pritt indicated, my name is Dave Trecker. I'm chairman of the board of directors of the Pelican Bay Foundation. This is the master homeowner association in Pelican Bay. We represent all of the homeowners, some 13,000 residents, about 4,900 of whom are registered voters. In addition we own, operate and maintain all of the common areas in Pelican Bay, including property adjacent to the Cap d'Antibes site. And this includes a section of the boardwalk leading to the beach, it includes a tram parking area and it includes a portion of the berm. Ownership information on this is contained in written material Page 292 March 9 & 10, 2004 we submitted under Tab Number 9. Now, I have a single message to deliver to you today and I'm going to be very brief. And Commissioner Coyle preempted some of this, but what I want to do is go beyond the members who are here today, all of whom, I think it's very clear, oppose this. The community, the entire community opposes building this structure. Thousands have signed petitions opposing it. A survey conducted last year indicated that an overwhelming majority of the residents object to this 650-foot wide monolith. The community is unified in its opposition to this, and that's a message that I want to deliver to you today. A cross-sectional group of folks from the community are here to indicate their solidarity but the opposition is deeper than that, goes beyond just the attendees today. Now, the community has no problem with the two towers indicated in the original site development plan and you've seen these from a number of the presenters. We strongly, on the other hand, object to the massive structure now planned. There's widespread belief that Cap d'Antibes, if constructed in its current form, would severely damage the character of Pelican Bay and could have a devastating effect on property values. This is a widely held belief in the community. And I would urge you not to underestimate the bitterness and the anger over this. There's anger about the proposed building, and there's anger about the process. And, again, I won't be repetitious. You've heard the details of this previously, the fact there was no public hearing on what amounted to be what we consider a very large deviation from the Land Development Code. We feel this is a serious matter for Pelican Bay and, in turn, a serious matter for the county. Again, my message to you, and I'll conclude with this, the community is unified in its opposition, the community does not want this building. Thank you. CHAIRMAN FIALA: Thank you, sir. Page 293 March 9 & 1 O, 2004 MR. PRITT: I believe we wanted to have an opportunity to cross examine Susan Murray, and my partner John Blakely would like to ask just a couple questions. We're not -- COMMISSIONER HENNING: Are we done with the presentation? CHAIRMAN FIALA: They have two speakers. MR. PRITT: I have two more. CHAIRMAN FIALA: Is this -- is this the one of the two speakers? MR. PRITT: No. I have two expert witnesses but we also want the opportunity -- we have not had the opportunity to cross examine Susan Murray and we would like to do that. CHAIRMAN FIALA: What about your other two speakers? You want to do that -- MR. PRITT: We'd be glad to put them on next. MR. BLAKELY: Madam Chairman, this is part of our presentation, is cross examination of Susan Murray, whose decision it was that made -- brings us all here today. So, Susan, will you please put on the visualizer Section 7.04.03? COMMISSIONER HENNING: Madam Chair, are you comfortable with this? It's your-- your call on the proceedings here, on whether-- COMMISSIONER HALAS: I didn't think we were in a court of law as such. Are we? CHAIRMAN FIALA: That's how I feel, too. MR. WEIGEL: We're getting closer. COMMISSIONER HALAS: Well, it's about time somebody takes -- guides us here. And I'm looking for guidance from you. MR. WEIGEL: Commissioner? Commissioner, we have been speaking up and guiding. And the fact is, we set the grounds rule earlier, and that was that they would make their presentations. And I Page 294 March 9 & 1 O, 2004 indicated that there would be an opportunity for examination and cross examination. He's, you know, attempting to go forward at this point, but the question was, and that's why I'm speaking up, is to say the understanding was not -- we're getting to a point where the presentation is being broken up by attempts to come back across the aisle, so to speak, to staff. I think that that opportunity should be there but I think that you're looking for and I'm looking for, and my understanding as we discussed the proceedings earlier today was, within a 20 or so minute time period they would make their presentations. And, as it turns out, we don't even know, or maybe we know now, this afternoon, whom all they have to present. But we didn't know that all this morning. Did we? CHAIRMAN FIALA: No, no, we sure didn't. And I didn't realize we were going to -- I think -- you know, to me it would flow pretty smoothly if everybody just got up and made their presentations instead of stopping and starting and cross examining. I'm certainly happy to have you ask questions, but now, you know, you kind of lose the thrust if you stop and start. If that's the way you want to do it, you've got ten minutes, sir, and then we'll give the -- MR. BLAKELY: Okay. I don't need ten minutes. I would be finished if I had just been able to ask my few questions. CHAIRMAN FIALA: Very good. Thank you. MR. BLAKELY: Susan, have you put the -- on the visualizer, please. MR. MUDD: State your name, please. MR. BLAKELY: My name is John Blakely. I'm an attorney with the Roetzel & Andress. I represent Pelican Bay Foundation with Mr. Pritt. Thank you. Now, Susan, we're here today, aren't we, because of Subsection C of the 7.04.03, in that your staff made a determination that the Cap Page 295 March 9 & 1 O, 2004 d'Antibes project on the amended -- amendment to the site plan fell within the exception under Subsection C; is that correct? MS. MURRAY: I didn't understand your question. You had two questions there. What -- what exactly are you asking? MR. BLAKELY: All right. I'm asking you if the amendment to the site plan that was granted to the developer was granted pursuant to Subsection C of 7.04.03 of the PUD. MS. MURRAY: With respect to the reductions in setbacks, yes. MR. BLAKELY: Okay. And, as I understand your response, that you sent to us, to our request for an official interpretation, you have inter-- interpreted the first clause of Subsection C where it says: In the case of clustered buildings, you have interpreted that to also include a single building that has dwelling units within that building, clustered. MS. MURRAY: You're asking me if I've interpreted that to mean a multi-family dwelling unit, as in-- MR. BLAKELY: A single -- I'm asking you if you've interpreted the first clause to include just a single building that has dwelling units clustered within it. MS. MURRAY: Okay. You're referring to C, then. MR. BLAKELY: Yes. MS. MURRAY: Okay. And the case of clustered buildings. Then I would answer yes. MR. BLAKELY: Okay. Now, and you-- and that is -- and that is important here because in fact there are no separate buildings that are being clustered but rather your interpretation that dwelling units within one building are being clustered, which allows it to qualify for Subparagraph C. MS. MURRAY: Dwelling units within one building and buildings themselves. The other thing you have to think about also is that single dwelling units are permitted as a permitted use in this Page 296 March 9 & 1 O, 2004 group. So one might also opine that, rather than building single family homes, the developer has chosen to group them all into one building. (Laughter.) CHAIRMAN FIALA: Please. MR. BLAKELY: Are you saying then -- I want to understand. You're saying that dwelling units within a high-rise condominium are separate buildings themselves within a master building? MS. MURRAY: No, I didn't say that. MR. BLAKELY: Okay. I thought -- well, isn't it true that in this particular case there is one building that you have considered, this proposed Cap d'Antibes building and you have determined that, that your -- as I understood your response, your written response, that you are considering clustering individual dwelling units within that building to satisfy this requirement? MS. MURRAY: I am opining on the facts of the approval of the site development plan and what staff did when they reviewed and approved the site development plan. MR. BLAKELY: I understand that -- you weren't there at the time; is that correct? MS. MURRAY: MR. BLAKELY: I did not approve the plan. I was not there. Okay. So you're -- but you recognize that there are not two buildings here under consideration. It's one building, and you have decided or you've given the opinion to the Commission that that one building satisfies the requirement that there be clustered buildings? MS. MURRAY: I don't believe that's what I'm saying. I'm not -- I'm still, again, not sure of your question. MR. BLAKELY: Okay. Well, what buildings are being clustered? MS. MURRAY: The unified plan together is being clustered. Page 297 March 9 & 10, 2004 There's several buildings within that entire unified plan that have been -- have enjoyed the reduction and reduced setbacks, the St. Pierre and the St. Laurent. MR. BLAKELY: So you're saying that those three buildings in a row are clustered now, or would be clustered? MS. MURRAY: No. All I'm saying is that several buildings within the unified plan of development have enjoyed reduced setbacks as a result of the application of 7.04.03(C). MR. BLAKELY: Okay. As ! understood your testimony this morning, you initially said that the definition of cluster under the Land Development Code in Section 2.6.27 was not applicable, but now you've changed your mind and you've determined that it -- MS. MURRAY: No. And I need to make a correction or actually expand my statement on the record, and if now is the appropriate time to do so, that's fine. I really wanted to kind of save that to the end. ! didn't realize we were going to rehash this again, but I can do that now if you wish. I just need to get my notes. Okay. If I understand correctly you want me to discuss again the MR. BLAKELY: Well, my question is that, do you agree today that the definition of clustering in the Land Development Code under Section 2.6.27 would be applicable in interpreting the word clustering in the planned unit development? MS. MURRAY: Again, I'm sorry. I'm still not following your question. What -- could you say it again? Okay. The term clustered is used here in the MR. BLAKELY: PUD, correct? MS. MURRAY: MR. BLAKELY: Correct. All right. Land Development Code, isn't it? The term cluster is also used in the Page 298 March 9 & 10, 2004 MS. MURRAY: That's correct. MR. BLAKELY: And doesn't the PUD say in Section 2.15 that if the PUD does not define a word that you should therefore go to the definition of that word in the Land Development Code, if it's existing? MS. MURRAY: I would have to look that up. MR. BLAKELY: All right. 2.15 of the PUD. Just read the very last two lines of that for me, please. MS. MURRAY: All other definitions shall be as contained in the zoning ordinance of Collier County. MR. BLAKELY: And that refers to the Land Development Code? MS. MURRAY: MR. BLAKELY: Correct. And the Land Development Code does talk about clustering in Section 2.6.27; isn't that true? MS. MURRAY: That's correct. MR. BLAKELY: Okay. And in that section, where it talks about clustering, does it not say that the purpose of clustering is to create more usa -- a more usable pattern of open space. MS. MURRAY: It says, by creating another varied, efficient, attractive and economical residential development containing a more usable pattern of open space. MR. BLAKELY: The purpose of clustering is to create more open space, isn't it? MS. MURRAY: purposes. MR. BLAKELY: your -- MS. MURRAY: MR. BLAKELY: It can be. That's one purpose. There's many All right. And it -- but that -- it says that in It says that in the code, yes. Okay. And in this case the amended site plan in fact goes the opposite direction; doesn't it reduce the amount of open space from eight acres to seven-and-a-half acres? Page 299 March 9 & 10, 2004 MS. MURRAY: That is not a calculation I did. That is information that I know is -- has been presented, but I can't speak to that in an official opinion. MR. BLAKELY: Okay. All right. Okay. I have no other questions. MR. PRITT: We would have David Depew testify next. He's a planner. MR. WHITE: Madam Chair, I'd just caution you and the Board members that, based upon my prior review, again, of what was submitted on March 2nd, Mr. Depew's affidavit, that there be a continuing objection from the perspective of it being, quote, new evidence that could have been discovered at the point in time that the appeal was filed. In that sense I think that it's inappropriate, but I certainly also caution that you could try to distinguish between those comments he may make that are planning opinions and ones that are not. MR. YOVANOVICH: Just for the record, we'll join in the same objection, that this information was not part of the appeal, could have been discovered and was not presented timely. MR. MUDD: Could I please have the name of the voice again, please, for the clerk? MR. YOVANOVICH: Again, Rich Yovanovich. I apologize. MR. DEPEW: For the record, David Depew representing Pelican Bay Foundation, Inc. And thank you again for the opportunity to come and speak to you today. I'm here in my guise as a planner and, speaking to you from that area of expertise, I can tell you that I was asked to review the documents associated with this case and, in doing so, I reached a number of conclusions. First off, in terms of clustering, I believe that the explanation produced by staff with regard to clustering is insufficient and Page 300 March 9 & 1 O, 2004 inconsistent with the generally accepted standards of the planning discipline. The concentration of buildings on a portion of this site, as you've already seen here, does nothing to increase open space, recreation areas or protecting environmentally sensitive areas. In fact, it decreases the amount of open space on the site, which is one of the principal elements of the concept of clustering. The parcel in question, I believe, does not qualify for a determination as clustered if you compare it with the prior site plan. You're not getting larger buildings with larger footprints and then able to consider that as clustered. Everything about the proposed site plan really moves against the concept of clustering. And the idea that, that you can cluster something and end up with a larger building and less open space is really turning the concept on its head. Staff determined that the project has a common architectural theme, it appears, based on some conclusionary letters that were provided by architects. The record does not reflect that the staff had any real description of the current architectural theme or any -- any drawings or elevations that would really reflect whether or not a common architectural theme existed within the project. And I would submit to you that the authority to delegate that kind of determination, I was unable to find anywhere in your code, to these letters from these outside architects. I believe the staff has to engage in their own analysis and their own discovery to make that determination. There was no record that any such determination or study or research was done and presented at any point during that determination. And indeed it doesn't appear that -- that really the adjoining structures were ever adequately considered in terms of a common architectural theme. The adjoining properties, I believe, are ones that need to be reviewed. We took a look at the overall process. I understand that there's a continuing objection with regard to bringing in any additional Page 301 March 9 & 1 O, 2004 material, but I think what's physically on the ground is something that needs to be considered and what should have been part of the overall process when it was undertaken. If you take look at the actual proposed footprint, compare it to the prior footprint and the exhibits, I believe, were already before you, you can see the rather distinctive difference in terms of the mass and the structure that has been proposed on the Cap d'Antibes project. If you take a look at that structure with regard to the adjoining property to the north, the St. Raphael development, you will see that the Cap d'Antibes project and building is much more obtrusive in terms of mass and scale. I did an analysis on this. I have an exhibit over there that demonstrates that and I believe you've been provided with -- through my affidavit on the -- that was submitted, I believe, on the second, with the evidence with regard to that. Your Growth Management Plan requires that development has to be compatible with and complementary to surrounding land uses. And I believe that the question of whether or not the Cap d'Antibes project is in harmony with its surrounding land uses is the real question of compatibility. And whether or not there has been a communication of negative or deleterious effects from the proposed project or will be from the proposed project to the existing development in the area, I believe that the proposed project clearly is not going to be compatible because there are going to be deleterious effects. And a review of the exhibits that you've seen already from this morning showing the footprints and how those footprints align vis a vis the existing development in the area demonstrates that lack of compatibility. Finally I would submit to you that the nature of the decision that was made by staff I believe is outside and beyond the scope of what, what they were able to do as -- in terms of administration. Rather than moving the building envelopes or changing an access point or moving Page 302 March 9 & 10, 2004 the internal rights-of-way, what happened as part of the approval was that an entirely new building envelope of much greater extent and a building of much larger mass and scope was approved. I believe that is not what was intended in terms of what your code describes in its provisions with regard to making kind of these kinds of adjustments administratively. So I think from that standpoint that goes beyond the scope of what -- what the staff would normally have been expected to be involved in in terms of any kind of administrative amendment. That concludes my analysis in terms of the overall general detail or overall general provisions of the proposal and my analysis of the documents. I'll be happy to answer any questions the Board might have. MR. PRITT: Next would be Raymond Fenton, architect. MR. WHITE: While Mr. Fenton is coming up, Madam Chair and Commissioners, I'd merely add to my comments before that, although I have not to my knowledge seen any information from this gentleman going back at least to Mr. Depew's testimony, not only are comments about it not being in the record but I think that much of what he testified to, as Commissioner Halas has indicated, is not relevant in the sense that it pertains more so to the SDP review process and not to this official interpretation of the PUD. And I will have to play it by ear as to Mr. Fenton as well as Mr. Weigel and I imagining the property owner's representative because I do not know what he's, he's going to say nor if he's testifying as an expert or not. MR. FENTON: Thank you. My name is Raymond Fenton. I'm an architect in the State of Florida. I've been in practice in Southwest Florida for 30 years. I have been employed by the foundation to examine the plans for the Cap d'Antibes and whether they meet the standards for clustering, whether they meet the standards for a common architectural theme. I'm going to be very brief because I Page 303 March 9 & 1 O, 2004 could not possibly be as articulate as Professor Tate and most of my testimony would be duplicate to her testimony and you have my affidavit in the file. There's just a couple of things that I think need to be emphasized in addition to the issues of open space. The definition in your code of open space includes the open space between buildings and around buildings, and in this particular case the reduction of side yard setback has significantly reduced that open space between buildings, by definition. And of course by definition the Cap d'Antibes project reduces open space and therefore does not meet the standards for clustering. An important area not particularly visited, and I noticed in the exhibits that are a part of the file, is that the site plans do not include the adjacent property, whereas your code requires that, in plan review, that the activities are not injurious to the neighbors and adjacent property owners. To the north side is a condominium called St. Raphael. The addition -- or the reduction, excuse me, of side yard setback by 50 feet significantly reduces the view to the southwest from that existing building of St. Laurent-- St. Raphael. The increased shadowing on their property, which will be right over their recreational area, is injurious to them. In the first case, when view is removed you're not only losing your personal rights and privileges and assumptions based on what was planned to be there when you bought, you're also injured in the form of real estate values. The increase in the reduction of setbacks between two structures that face the water -- during a storm event it's quite logical that water and wave action between two buildings closer together is going to be more damaging to the adjacent structures than if the buildings were further apart. I would like to just reinforce the area of there being -- there not Page 304 March 9 & 1 O, 2004 MR. PRITT: MR. MUDD: are signed up. being a common architectural theme. In my affidavit you'll see that I came to the same conclusions as Professor Tate. The Cap d'Antibes building of course is so huge, and its predominant features are different than the other two. And even more important there is no common architectural theme among the existing two buildings, if they are indeed to be considered as a part of the clustering proposal. What is most important is the issue of harmony. In our vocabulary we use rhythm and harmony. And .what was expected in the original PUD was there be a rhythm and a pattern of certain sized buildings and certain separations between those buildings, and that that would continue on down the beach. And in fact that has continued on down the beach with the now exception of the application of Cap d'Antibes. Thank you. CHAIRMAN FIALA: Let's see if we're finished here, please. Okay? Are we finished now, sir? MR. PRITT: Madam Chair, we do not have any other official presenters. I think the others have waived. We had four or five, but I don't see anybody wanting to jump up, and that would be fine. At some point we would like -- before the day is over we would like to make sure that we move our exhibits into the record to be made part of the record. I know that there's going to be a dispute over that. We would be glad to wait until the end of all the testimony and handle all of that at once if that's acceptable to the Chair and to the Commission. CHAIRMAN FIALA: Thank you. Okay, fine. The Board. Madam Chair, you have 19 public speakers that CHAIRMAN FIALA: Nineteen public speakers. Okay, fine. You're next, sir. Oh, I'm sorry. Page 305 March 9 & 1 O, 2004 Commissioner Coyle? COMMISSIONER COYLE: I would just like to make a clarifying statement about something. The staff has been fairly severely criticized during this process, and I want to make sure that everyone in the audience and anyone who is listening understands that there is no member of staff here who participated in granting approval of the Cap d'Antibes in the year 2000. CHAIRMAN FIALA: I'm glad you -- say that one more time, please. COMMISSIONER COYLE: That there's no person on the staff, from the County Manager all the way down to all the people that have been criticized today, who participated in approving or reviewing the Cap d'Antibes project four years ago. It did not come before the County Commissioners, so none of the County Commissioners here have ever ruled on this issue. The staff was given a very difficult task by you and their task was to go back four years in their mind and look at the way things were at that point in time, what the Land Development Code required, and give an interpretation as to whether or not that particular decision was supportable. And that's what they tried to do. And I'll submit to you that it's very difficult and requires a lot of interpretation and, despite the anger and frustration, I just want you to know that you shouldn't blame this staff because this got approved initially. They have had a very difficult task. There are things wrong with the procedure, apparently, that I know you're frustrated about. There's nothing we can do about it. We can't go back and solve that problem. UNIDENTIFIED SPEAKER: They supported it. CHAIRMAN FIALA: Sir, please. COMMISSIONER COYLE: You can sign up and speak if you want to. Okay? I've signed up. And the -- the important thing here is that there are things we Page 306 March 9 & 10, 2004 cannot go back and undo as far as procedures are concerned. There are certainly things we can do in the future to keep things like that from happening before -- or again. But there are only certain things we can consider and we've gone over those things earlier, that's why we've been talking about what the relevant issues are. And those are the relevant issues we've got to consider. But I felt it was necessary that I make this point on behalf of the staff. We have a good staff and it's a difficult task. MR. VOLPE: Commissioner Coyle, this appeal is not intended to be critical of your staff, and if we have in any way, shape or form implied that-- we are simply availing ourselves of a procedure that asks for an official interpretation we are trying to present in an Orderly way our belief that the staff, not that they're -- did anything wrong, we're just saying that their interpretation is contrary to our interpretation of the Land Development Code. So again, I mean, we're not here to criticize anyone, neither the Board of County Commissioners, nor the staff. So I've -- if we've done that in our process, we apologize. We're simply availing ourselves of an appellate process. We think that what we've said is that the staff at the time incorrectly interpreted provisions in your Land Development Code. You are the final arbiter of what the -- what was meant. You are the final arbiter. So I just wanted to -- and since you felt the need to say that, felt maybe we criticized. We certainly don't intend and didn't intend -- and this appeal process isn't a part of criticizing your staff. COMMISSIONER COYLE: Good. I'm glad to hear that. Thank you. CHAIRMAN FIALA: Commissioner Henning. COMMISSIONER HENNING: I guess a question for Mr. Pritt. The last architect that got up and gave testimony made reference to property values. Does he have a degree in appraising property? Page 307 March 9 & 10, 2004 MR. PRITT: Actually, you'd have to ask him, I don't know. No, he does not. COMMISSIONER HENNING: Okay. MR. CRITCHLOW: Madam Chair? CHAIRMAN FIALA: Yes. MR. CRITCHLOW: There were some brief questions on cross. CHAIRMAN FIALA: Well, it's your turn. Now you -- you're on your own 20 minutes. MR. CRITCHLOW: Actually, they're going to continue. It was just cross examination of Mr.-- CHAIRMAN FIALA: No, they are not going to continue. They're finished. MR. CRITCHLOW: They said they have 19 public witnesses. CHAIRMAN FIALA: Well, we're going to hear you first. We're going to hear everything you have to say, and then we'll hear the public. MR. WHITE: Madam Chair, I'm -- I'm at this point frankly not sure I recall what the order of proceedings were. But I'm not sure that Mr. Critchlow has actually asked his question or made his statement. MR. CRITCHLOW: I have not. Mr. Fenton made some statements that -- that I would like to ask him a couple questions about. I would like to object. It's a two part procedure. CHAIRMAN FIALA: Well, why don't you do that on your 20 minutes? I mean, you know, what I'm saying here is, I would like to move on here. And every time you jump up, then you interrupt this. If we -- as long as you've got 20 minutes coming, use your 20 minutes however you want. MR. CRITCHLOW: I believe we have 40. CHAIRMAN FIALA: Well, I'm saying your 20 minutes and then Rich wants 20 minutes. Oh, you're a team? Okay, fine. You're on for your 40 minutes, Page 308 March 9 & 1 O, 2004 sir. Go ahead. MR. VOLPE: Madam Chairman, I just -- for the record, and I apologize, but we need to -- since the rules of procedure seem to be -- we're trying to develop them in an orderly way -- I'm not sure why they are being accorded 40 minutes and who they are. This is our appeal. Your staff has made its presentation in 20 minutes. This is the affected property owner. CHAIRMAN FIALA: Right. MR. VOLPE: But in terms of your -- and your County Attorney is going to have to advise us in this regard. Under procedural due process in terms of how they -- under your ordinance, how do they get 20 minutes, number one, or 40 minutes? Number two is, they are members of the public. There aren't any special rights accorded to the others. The cross examination of the witnesses. If you're not a party to the proceeding, how can you cross examine witnesses? So I guess Mr. Weigel will have to advise you in that regard. CHAIRMAN FIALA: Here's what I'm going to tell you. I told them they could have -- you had two -- two attorneys come up to speak. I told them they could have two. Twenty minutes. Twenty minutes. It didn't afford them any more of the expert witness things that you have presented, and you have 19 speakers waiting out there to speak on your behalf. So it isn't like you're being shorted anything. MR. VOLPE: Oh, I'm not saying that. Madam Chairman -- CHAIRMAN FIALA: But I'm giving -- I'm giving them time to also rebut. MR. VOLPE: I got 20 minutes because I represent the appellant. CHAIRMAN FIALA: Right. And they represent the person who is being accused, if you will. MR. VOLPE: No. They are not a party to this proceeding. The reason why you accorded me the privilege -- Page 309 March 9 & 1 O, 2004 CHAIRMAN FIALA: They are representing the landowner, right? Do they not have a right to speak? MR. VOLPE: As a part of the public they certainly do. MR. WEIGEL: Madam Chair, we're getting back to what I already talked about this morning, and that was, traditionally in these infrequent but periodic hearings of this nature, we have afforded the affected landowner the opportunity, similar to a party, to make a presentation and to examine and cross examine. This is what I said this morning and I'll say it again now, so it's not new news now. CHAIRMAN FIALA: Right. MR. WEIGEL: And I think the question that's being raised -- CHAIRMAN FIALA: And I stated it as we began the meeting as well. MR. WEIGEL: Yes. And part of what -- I think the question that's being raised right now is, we've talked about 20 minutes' presentation and that's 20 minutes per appeal. Mr. Volpe got 20 minutes. In fact, Mr. Volpe, plus the additional presenters he had, I think have had significantly more than 20 minutes, if we were to check the clock. The same with Mr. Pritt and his additional presenters, have gotten significantly probably more than 20 minutes. I don't know if we are going to consider the cross examination as part of the 20 minutes since it was already reached by Mr. Volpe earlier or not. But I did say earlier that, that both entities, including the County Attorney on behalf of its staff, would avail itself of an opportunity to examine or cross examine. And myself, I really don't care if we call that within the 20 minute or not, but I just observed that we've gone well beyond 20 minutes and had the opportunity as part of, quote, the presentation to have cross examination. Cross examination is-- CHAIRMAN FIALA: And we've already had their cross examination; is that correct? Page 310 March 9 & 1 O, 2004 You've cross examined our Susan Murray here. So we've done that and you did it on a time limit. And so I think that that's where we've moved. And now we're at 3:30 and we've got these ladies who must get up for ten minutes and just stretch their fingers. So -- MR. PRITT: Madam Chair, Bob Pritt. I join in the objection of Mr. Volpe. That's all I wanted to say. CHAIRMAN FIALA: Ten minutes. (A recess was taken.) MR. MUDD: Ladies and gentlemen, if you'd please take your seats. Madam Chair, you have a hot mic. CHAIRMAN FIALA: Thank you very much. Now, sir, would you like to begin? MR. CRITCHLOW: Madam Chair, may it please the Board, we were going to start our presentation with a brief cross-examination of Mr. Fenton, just so that you'll have that in some level of timing that he just went. So we're going to ask him a couple of questions, if Mr. Fenton -- MR. PRITT: On behalf of the foundation, and I'm looking for Mr. Volpe, we would object to the property owner any -- doing any presentation or any cross-examination. I want to get that on the record once so that I don't have to keep popping up and Mr. Volpe does not have to. We will look for Mr. Fenton, by the way. MR. MUDD: State your name, sir. MR. CRITCHLOW: I was just going to do that, and I do apologize. Richard Critchlow on behalf of Parcel J, the property owner. Mr. Fenton, my name's Rich Critchlow, I represent Parcel J. You were sworn to tell the truth before you provided your testimony up here a few minutes ago, weren't you, sir? MR. FENTON: Yes, sir. Page 311 March 9 & 1 O, 2004 MR. CRITCHLOW: Isn't it true, sir, that Pelican Bay as a project, as a PUD in its entirety, was approved as a cluster concept? MR. FENTON: That's correct. MR. CRITCHLOW: So that when the PUD that was ultimately approved, back in 1977, it was believed that this was going to be clustered buildings, clustered houses? MR. FENTON: Well, I come to a different conclusion. It seems illogical to me that -- when you do a cluster you create a series of bubbles, and in those bubbles, they had a set of standards that are -- that are different than you find in other zoning regulations. MR. CRITCHLOW: But sir, it's your testimony, and you provided that to the Board already, that Pelican Bay was a cluster concept development. MR. FENTON: That's correct. MR. CRITCHLOW: And at the time the PUD was approved, the LDC was not in existence. MR. FENTON: I couldn't testify to that. MR. CRITCHLOW: And in fact, the only provisions dealing with cluster development that now appear in the LDC did not come into existence for at least 15 years until after the PUD was approved. MR. FENTON: I couldn't testify to that either. MR. CRITCHLOW: So anything that you've told this Board relative to the use of the LDC, relative to what was intended in the PUD 15 years before the LDC was approved, is not anything that you have an expertise to deal with. MR. FENTON: No, my testimony clearly was that the LDC had to be applied to the clustering concept as it was being used for Cap d'Antibes. MR. CRITCHLOW: My question is different, sir. The LDC wasn't in existence, therefore, the PUD, when it was created in 1977, had no intention to rely upon anything in a non-existent document; Page 312 March 9 & 1 O, 2004 isn't that true ? MR. FENTON: I thought I heard testimony that referred to whenever it wasn't stated in the PUD, it referred to the Collier County zoning code. MR. CRITCHLOW: Well, was there any provision in the Collier County zoning ordinances or codes in 1977 that had anything to do with clusters, cluster developments? MR. FENTON: I have no knowledge of that. MR. CRITCHLOW: Isn't it true, sir, that you also have said that the development regulations which were established within the Pelican Bay PUD are different than those provided for in other aspects of the county? MR. FENTON: That's correct. MR. CRITCHLOW: And the reason for that is, is because the PUD in its creation established a contribution of hundreds of acres of open land and environmentally protected areas; isn't that true? MR. FENTON: Yes, sir. MR. CRITCHLOW: Sir, are you aware that at a minimum 16 other projects in Pelican Bay of high-rise buildings had been granted reduction in the minimum yardage under 7.04.03 prior to the Cap d'Antibes application? MR. FENTON: Yes. MR. CRITCHLOW: Is your testimony today the same, that the wind and the wave currents that are created with the reduction here is the same with all the other reductions that have been granted in the history of the PUD? MR. FENTON: No, sir, my testimony was that the wave velocity would be increased between Cap d'Antibes and St. Raphael. MR. CRITCHLOW: My question is different, sir. In any instance where the buildings are moved closer together, I believe you said that wave velocity would have an effect? Page 313 March 9 & 10, 2004 MR. FENTON: That's correct. MR. CRITCHLOW: So that all of the other 16 projects would have the same issues that you're addressing here with Cap d'Antibes? MR. FENTON: Perhaps. I have not seen them. MR. CRITCHLOW: How far away is the ocean from Cap d'Antibes? MR. FENTON: Quarter of a mile. MR. CRITCHLOW: So you're saying to this Board that a quarter of a mile distance is still going to have a wave effect? MR. FENTON: Yes, sir. MR. CRITCHLOW: Did you do any wind tunnel tests, sir? MR. FENTON: No, sir. MR. CRITCHLOW: I've got nothing further of this witness. MR. YOVANOVICH: Commissioner, Rich Yovanovich on behalf of Parcel J. What I wanted to do, and I'm just going to briefly go back to the original objection we had regarding the appeal filed by the Pelican Bay Property Owners Association. And Commissioner Coyle specifically requested that we let you know where it was that Mr. Volpe strayed from the original information set forth in his notice of appeal. And if I can put up on the visualizer the original notice of appeal and information submitted by Mr. Volpe when he filed his appeal. And you'll see it's a two-page document. And there was no basis for the appeal set forth, nor was there any listing of the information that he would be relying upon. And specifically Section 1.6.6 of the code -- and we need to blow that up a little bit better for everybody to see. If you'll look at the second paragraph, and it specifically says, a request for appeal shall be filed in writing, shall -- such request shall state the basis for the appeal, and shall include any pertinent information, exhibits and other Page 314 March 9 & 1 O, 2004 backup information in support of the appeal. Now, it's important that we look at the dates. The original interpretation is issued on September 29th. The document I showed you, which was the notice of appeal, was filed on October 27th, 2003. We then did file a letter of objection saying that the notice of appeal was insufficient, based upon the requirements in your ordinance, which are mandatory requirements. 1.6.6 says "shall" state the basis for the appeal, "shall" include any pertinent information and exhibits and other backup information. Those are mandatory. CHAIRMAN FIALA: But you've mentioned two dates, but you haven't told us what, you know, what's legal there. MR. YOVANOVICH: Right. And the bottom line is this: He was required within 30 days of September 29th, 2003, to file a complete appeal, including the basis for the appeal and all the information on which he's relying. That information did not come about until -- and we filed an objection on December 17th, 2003. He then filed his supplemental information. In reality his supplemental information was his entire case, because he never told us what his case was within the 30-day time period. That information is 60 days late, or pretty close to 60 days late from when he was supposed to -- when he was supposed to file it. We believe that this is a jurisdictional requirement, meaning that he is -- he had to provide all that information to preserve his rights and his ability to go forward with this appeal. He did not provide that information and, therefore, the appeal filed by the Pelican Bay Property Owners Association should not and could not and cannot be heard by this Board, based on the very terms of 1.6.6. Now, we objected to that before the hearing went forward. You asked us to point out where they strayed from 1.6.6 and when it was that they started to introduce information. They did not start to introduce information until December 23rd, 2003. Page 315 March 9 & 10, 2004 They then further -- and this is -- I'm just dealing with the Pelican Bay Property Owners Association. Dr. Raia then further submitted additional information on May 2nd -- I'm sorry, March 2nd, again in an attempt to further supplement the record. I believe that you should not have and cannot rely on any of the information Mr. Volpe was talking about or relying upon in his appeal and, therefore, that appeal should be dismissed and not considered. And we renew that request and we ask that the Board not consider that appeal, based on it not being timely and not being complete, as required by Section 1.6.6. We have a right, as the property owner who obtains the SDP -- and that SDP is a very valuable property right -- to know that there is finality in obtaining that SDP. And there's a process to file this request for interpretation. They followed the process, they got their interpretation. They know what the rules were. Mr. Pritt knew the rules. He filed a notice of appeal with exhibits. Mr. Volpe did not. We believe that it would be improper to go forward, and we would request at this time that you consider the dismissal of that appeal. And if you have any questions, I'm happy to answer that. Otherwise, I'll turn it over to Rick and let him handle the rest of the presentation. CHAIRMAN FIALA: Commissioner Coletta? COMMISSIONER COLETTA: All right, this question is not directed to Mr. Yovanovich, it's directed to David Weigel, our County Attorney or to Patrick White, our Assistant County Attorney. What we just heard from Mr. Yovanovich, does it have something that we should considering at this point in time? I know there's always two sides to this issue. MR. WEIGEL: I'll speak first, Patrick. Yes, it does have something that you should consider. And this was something that we brought to your attention this morning as well, Page 316 March 9 & 1 O, 2004 is that there was some, if not significant, material that was submitted beyond the required time frame for the appeal and that this material could be problematic in your hearing today, and that it -- an objection was placed on record early on, and Mr. Yovanovich has indicated that he believes it's jurisdictional. Using that as a parlance of court term means that if that requirement, if that prerequisite is not met, does that mean that you cannot in fact hear the matter in chief that is submitted thereafter? And Patrick, chime in, but I would submit that the statement by Mr. Yovanovich is correct and that the procedure has not been followed and the language of the procedure is mandatory. It says "shall", and it did not occur, and the facts are now on the record for you to be able to make that determination that in fact it did not occur. And you are in a position to make further determination, either now or later on in this proceeding, as to the -- I would advise you that it appears that the prerequisites have not been met barring any further information or testimony to the contrary, and that you could make a decision that the appeal must fail. COMMISSIONER COLETTA: Question, if I may go one step further. If we were to ignore that suggestion and go forward and fina -- and finally come up to a determination at the end, that determination could be challenged, based upon our neglect as far as removing this part of the element from consideration? MR. WEIGEL: Well, if you're talking about a challenge in a court to review the decision that you make today, I think the answer is yes. But challenge can be filed, rightly or wrongly, and sometimes a challenge is filed not knowing what is right or wrong and you look to the other forum, a court, to help determine, subsequent to the quasi-judicial proceeding that you have today. I'm not sure if there's some more to your question to answer. COMMISSIONER COLETTA: Well, just one more part, if I Page 317 March 9 & 1 O, 2004 may. If we were to do as has been suggested and to eliminate this particular agenda item, find it to be incompatible, incomplete or whatever the terminology is, this wouldn't in any way affect the other agenda item, we could continue with that? MR. WEIGEL: Yes, you may continue with the other item. There are two separate appeals. They, for convenience, have been rolled together to some extent, but they have a separate identity. COMMISSIONER COLETTA: Would it be inappropriate at this point in time if I asked Mr. Volpe to respond? MR. WHITE: I'd just like to add, Commissioners, one other, I think, helpful piece of, hopefully, information involving a resolution that we mentioned in our memorandum, and Mr. Weigel has mentioned earlier and certainly has been referred to by Mr. Volpe, and that's 98-167. And therein there's a portion about pre-hearing submittals. And it says that they should -- that an applicant -- in this case it would be the appellant -- shall make those applications as provided in the procedures established for the individual decision being requested. What I read that to mean is that here the decision that's being requested is an appeal hearing of the official interpretation, and thus the rules in 1.6.6 would trump and apply, rather than those particular to 98-167. If that helps. CHAIRMAN FIALA: Commissioner Halas? COMMISSIONER HALAS: I'm going to throw another wrench in the gear box here. What codes do we use to come up with a decision on this? Do we use the Pelican Bay PUD at the time of its inception, or do we use the Land Development codes that were in existence in 1991 ? MR. WHITE: Well, it depends upon what question you're asking. If you're asking about today's appeal procedure, certainly the Page 318 March 9 & 1 O, 2004 rules of today's Land Development Code control. If you're asking about something else, then I have to better understand your question. COMMISSIONER HALAS: Well, were there guidelines-- when the PUD for Pelican Bay established, since that was one of the first PUDs in Collier County, were there guidelines that were set that were predominantly for the Pelican Bay PUD and they did not have to conform to the Land Development Code that was set forth in 1991 ? MR. WEIGEL: I think I can answer that. I'll certainly start the answer. And that is the Pelican Bay PUD was adopted on or about the year 1977. The Land Development Code, the code before you today, which of course has been amended since originally approved, it came into being in 1991. Before the Land Development Code was a zoning code of ordinances. The previous one prior to our Land Development Code was, I think, Ordinance No. 82-2 or something like that. It was a 1982 ordinance which was the comprehensive zoning code. Prior to the 1982 ordinance, there was another group of ordinances or rules that affected zoning. There was not an absolute gap in zoning rules whatsoever. But the LDC did not come into existence until 1991 itself. COMMISSIONER HALAS: So -- MR. WEIGEL: That's the history behind it. COMMISSIONER HALAS: But -- okay. And I believe that the landowner purchased this property in 1991 or thereabouts, am I right or am I wrong? And maybe somebody could give me some guidance on that. MR. WEIGEL: I have no independent knowledge as to the ownership of the parcel or area involved. COMMISSIONER HALAS: Well, we got-- I think we have to make a determination of what set of rules we're going to go by. Are we going to go by the rules that were set up strictly for the Pelican Bay PUD, or do we go by the Land Development Code that was Page 319 March 9 & 10, 2004 established -- the Land Development Code as we know it today with all the changes that are currently going on, but that code that was established in 1991, is that what we're looking at and using as a guideline? MR. WHITE: I think your staffs interpretation clearly indicates, and the requests for the interpretation themselves similarly are limited solely to the PUD. That's certainly true for the staff. And I know that there were questions that seemed to desire to strain the LDC as to its applicability or not. But your staffs answer to that, and they can correct me if I'm wrong, is that this interpretation process, and hence the appeal, ought to be limited solely to the PUD. COMMISSIONER HALAS: So are we saying then it's the laws of the PUD and not the Land Development Code? MR. WHITE: I have to go back to the initial comment I made -- COMMISSIONER HALAS: Staff, if you have some input into this, we need to use this as -- I think this is very important. MR. WEIGEL: Well, the PUD is the controlling document, and I think perhaps part of the thought process here is it was mentioned by Mr. Critchlow in his cross-examination of Mr. Fenton -- and I'm sorry if I'm on the wrong type of response here, but I'm attempting, trying to try to reach a response for you -- I think that there was a thread of discussion there, question and answer, that had to do with the fact that there was a clustering concept that had come into play from 1977 and onward and did not come to exist purely from the 1991 Land Development Code and later on, that there was a clustering concept that was envisioned for all of Pelican Bay, and they also had some discussion about open space in the big concept of Pelican Bay itself. And that -- that, of course, that type of thought or discussion or argument, has nothing to do with the Land Development Code in the sense that the Land Development Code did not exist at that time. The Page 320 March 9 & 1 O, 2004 Land Development Code comes into play typically where there's an absence of definition or description or delineation in the PUD itself. The PUD is a hybrid zoning document. And the Land Development Codes are really general rules of zoning regulation. And the hybrid document typically controls, meaning in this case that -- the Pelican Bay PUD. And the point that was made, I believe, and I think this is where your questioning leads in to, was that long before our Land Development Code came into being there was a clustering concept and big picture concept of clustering of buildings and open space within Pelican Bay. Now, I'm not making that argument myself, I'm trying to restate to, I think, how the question -- part of an answer to this question may be realized. MR. WHITE: And can I apologize if I was going down the other thread that was the procedural part relating to what the LDC says about today's hearing, because that was essentially the discussion that was being held initially when we were talking with folks at the podium. COMMISSIONER HALAS: So what you're tell -- I think what you're telling me then, that we go -- we're going to go by the guidelines of the LDC that was established in 1991 ? MS. MURRAY: No, what he's -- MR. WHITE: I'm not sure I'm saying that. What I'm saying is that for the purposes of today's hearing and procedural matters pertaining thereto with respect to the party, whether someone's a party or not, you should look to 1.6.6 -- COMMISSIONER HALAS: Okay. MR. WHITE: 1.6. It's not specifically .6. But that I thought was the original discussion when the Board started asking our office questions. MR. WEIGEL: Well, what Patrick was indicating, there was in Page 321 March 9 & 10, 2004 terms of what process controls, relative to the submission of material. The resolution, 98-167 about quasi-judicial hearings does say fairly specifically that ultimately the specific procedure will apply. And there is a specific procedure for appeals of interpretations. And that specific procedure was what Mr. Yovanovich put on our view screens, which has some mandatory requirements for an appeal to go forward. CHAIRMAN FIALA: Actually what we're doing now is discussing whether we're going to accept the appeal or not, right; basically? MR. WHITE: Madam Chairman? CHAIRMAN FIALA: This is the question Rich raised, right? COMMISSIONER HALAS: My question, basically, whether we accept this information that's been given to us today or whether we address B or A of 7, what I'm trying to do is get a handle on, in regards to the establishment of the Land Development Code -- which it seems that we're basically encompassed with in the interpretation that was come -- that staff came up with at the time that this PUD was approved or this -- this building or the site development plan was changed, we were using -- were we using the PUD that was established by Pelican Bay rules or were we using the Land Development Code that was established in 1991 ? MR. WHITE: Although I probably -- COMMISSIONER HALAS: All I want is a yes or no. MR. WHITE: The answer is I think the PUD. COMMISSIONER HALAS: Okay. CHAIRMAN FIALA: The Pelican Bay PUD. COMMISSIONER HALAS: And so the Land Development Code didn't play a part, really a big part into this? MR. WHITE: From the staff's perspective, and again, we're probably again beyond the record, that is true. There was only an analysis based upon the PUD. Page 322 March 9 & 10, 2004 MR. VOLPE: Madam Chairman, members of the Board, on the last issue, if I may. Very quickly, three points. One, the Pelican Bay PUD specifically provides in statement of compliance, the project shall comply with the applicable zoning and subdivision regulations and all other county and state laws dealing with platting and subdivision of property at the time the improvements and plat approvals are sought. Secondly, under Section 2.13, amendment of ordinance, this is in the Pelican Bay PUD, the last sentence says all petitions or requests for exceptions, variances or amendments -- now, this was an amendment seeking a modification of minimum yard requirements -- shall conform with the procedures existing at the time of the application for the exception or the amendment. So the Pelican Bay PUD anticipates that the LDC is going to be brought into. And thirdly, the third point I make is simply this: When your staff rendered its interpretation, it was interpreting the LDC and the Pelican Bay PUD. And you heard Ms. Murray testify that as it relates to clustering, these two provisions shouldn't be read together. But the staff does look to the LDC, and so I submit that in your consideration, contrary to what I thought your County Attorney is advising you, is that you have to look at the law that was in existence at the time that this application was submitted. In 2000. And at that time, the LDC was adopted in 1988 (sic) or 1999, and it clearly says that you've got to conform to what the law is at the time. That's -- you don't pass legislation in 1978 and say that's the way it is and we're going to ignore it. You know, in changes in law, every time you adopt an ordinance you -- and in fact, the other thing I might comment is that these people have requested an extension in the site development plan and they've agreed to bring themselves into conformance with whatever the changes in the law may be from the time it was approved in 2000 to the time it is now. So that the law anticipates there will be Page 323 March 9 & 1 O, 2004 changes and you need to look at what the changes are at the time. So on that issue I respectfully disagree that in your interpretation you are confined solely to the Pelican Bay PUD. But the whole interpretation, all we're here telling you is that the staff incorrectly interpreted the provisions of the LDC as they applied to the PUD for Pelican Bay. For the record, my name is Michael Volpe. I'm sorry. So on that issue, maybe we can -- that's your standard of review. And there is, in the -- in your ordinances, there's a statement of the standard of review to be used, and you're to be looking at the evidence in light of the growth management plan, the future land use map, the zoning atlas and other related matters. So that's the standard of review that you're applying so that the standard of review requires that you look at these, because that's what it says, standard of review. We're looking for competent substantial evidence or we're looking for whether the interpretation is contrary to law in -- heard in light of the growth management plan. The growth management plan wasn't in effect in 1977. CHAIRMAN FIALA: Have you -- have you gotten the answer you were looking for? COMMISSIONER HALAS: Yeah, I hope so. CHAIRMAN FIALA: Thank you. Rich, go ahead. MR. VOLPE: On the issue -- Madam Chairman, on the issue of the timeliness of the appeal, we filed within 30 days of the rendition our notice of appeal. It was timely filed, with the appropriate filing fee. It was filed and served as it was required to. In the notice itself, the basis of the appeal is that the official interpretation is contrary'to law. That's what we're saying, it's contrary to law. And specifically said that in support of the contention that it's contrary to law, we'll submit a memorandum. What was submitted later was simply my arguments fleshing out why. I could -- Page 324 March 9 & 1 O, 2004 I felt it would be materials which I could have submitted seven days before or 30 days before. So the timeliness of the appeal, it was timely appealed. CHAIRMAN FIALA: Mike, you know what I have to do, I have to give these people their time now, okay? MR. VOLPE: Yeah, I'm just responding to the question about the timeliness of the -- CHAIRMAN FIALA: I know, but if each time they raise a question you come, then we're going to drag this out for hours and hours. So I'd like to kind of move it forward, okay? Some of these people have a bus leaving at 5:30, please. MR. VOLPE: I just wanted to clarify the issue, Madam Chairman, about the timeliness of the appeal. And you do have jurisdiction of this appeal. CHAIRMAN FIALA: You know what? As I've asked the Commissioners, write the rest of your comments down, and when they're finished then we'll start this again, okay? Thank you. MR. YOVANOVICH: ! would ask quickly that you resolve that issue, because it could shorten our presentation. And when he talks about what he submitted after his notice of appeal, this is it. I mean, this is everything. It's his argument, it's his documents to support his argument, all of which the code required that he submit within 30 days. He didn't do it. The appeal was not timely. We would hope that the Commission will vote at this time not to consider that appeal, and we'll go on and we'll address the other appeal, which is 7(A). And regarding the PUD comment, Mr. Volpe was referring to a PUD provision that talks about amending the PUD ordinance. We're not asking to amend the PUD ordinance, we're asking to apply for a reduction in yards pursuant to the very provision in the PUD that allows us to do that, 7.0 -- Page 325 March 9 & 1 O, 2004 MR. VOLPE: That says exceptions and variances, Mr. Yovanovich. MR. YOVANOVICH: You know, Mr. Volpe, I did not interrupt you when you spoke -- MR. VOLPE: I apologize. MR. YOVANOVICH: -- and I would appreciate it if you would not do that to me. The ordinance Section 2.1.3 says amendments to ordinance. That's what it talks about. We're not amending the ordinance, we're applying 7.04.03, and it's the PUD that controls. But let's get back to the -- I guess original motion which -- or request, was for the dismissal of the appeal, so we know how to go forward with our presentation. CHAIRMAN FIALA: Commissioner Halas, go ahead. COMMISSIONER HALAS: Question I have for staff. This was presented to us. Is this in error then, or is this a legal document that we can base some of our decisions on? MR. WHITE: I'm assuming what you have there is the supplement filed by Mr. Volpe? That looks like Roetzel and Andress's, which I think is Mr. Pritt's. COMMISSIONER HALAS: Okay. MR. WHITE: But your question is whether Mr. Volpe's supplement -- COMMISSIONER HALAS: Yes. MR. WHITE: -- is untimely. The answer is it was. COMMISSIONER HALAS: Okay. All right. Thank you. MR. WHITE: Under 1.6.6. MR. VOLPE: The supplement, Madam Chairman, since that's being -- the materials that were submitted are all materials that were a part of the staff's file, your record, letters and the like, the official interpretation. The appeal was filed within 30 days. If you choose-- Page 326 March 9 & 1 O, 2004 your County Attomey has advised you that everything that you're hearing today is not relevant. The only thing you can consider is what was before the staff at the time. That's been the theme here. These are procedural issues that they're trying -- that they've raised, and very legitimately. But all of those materials, anything that came in later than the action of staff, they're saying to you that you can't supplement the record. So that's a broader question about whether those things that came in on March 2nd that were part of the supplement. The appeal was timely filed within 30 days. And whether it's jurisdictional or not -- I don't believe it's jurisdictional -- it was timely filed. And even if it were, you're going to deprive these people of the opportunity to have their appeal heard. And I submit to you that there's nothing in the provisions of the Land Development Code that divest you of jurisdiction of this matter that you can consider. Your staff had 45 days to render their opinion. I think someone mentioned that the staff didn't render their opinion for longer than that. And so that doesn't make their official interpretation invalid. These are time limitations but not jurisdictional. The appeal was timely filed. CHAIRMAN FIALA: Commissioner Henning? COMMISSIONER HENNING: Thank you. We were told at the beginning that this information was filed late. And I know how important it is for the Board of Commissioners to hear the public and their representation. We heard that, and at this time I think it is appropriate to dismiss the first petition -- or the first appeal and address the other one, and the public still has the opportunity to address the other one. We have 19 speakers at this time, so Madam Chair, at this time -- is it a motion? MR. WEIGEL: You may make a motion. Page 327 March 9 & 1 O, 2004 COMMISSIONER HENNING: Motion to dismiss Mr. Volpe's appeal. MR. WEIGEL: If you could refer to the petitioner appeal number, and provide some reason. COMMISSIONER HENNING: The petition number is ADA-2000-AR-4933, and the reason is for the appeal process, the evidence wasn't submitted on time -- or the appeal wasn't submitted on time. MR. WHITE: I'm assuming that would be pursuant to LDC 1.6.6? COMMISSIONER HENNING: Yes. MR. WHITE: And just to correct, it's ADA-2003-AR. COMMISSIONER HENNING: Oh, I thought I -- okay. MR. WEIGEL: As the County Attorney, I've been asked to repeat motions that are made, and I'll do so here. There's a motion by Mr. Henning, waiting for a second, to dismiss the Petition No. -- Patrick? Or appeal number. MR. WHITE: ADA-2003-AR-4933. MR. WEIGEL: Upon a basis of failure to conform to the requirements of Section 1.6.6 of the Land Development Code pertaining to appeal to Board of Zoning Appeals, or Building Board of Adjustments and Appeals. Specifically that the request failed to state the basis for the appeal with any specificity and did not include any pertinent information, exhibits and other backup information in support of the appeal. So I -- CHAIRMAN FIALA: There's a motion on the floor. MR. WEIGEL: -- would state it that way. COMMISSIONER COLETTA: I'll second it. CHAIRMAN FIALA: I have a second from Commissioner Coletta. Commissioner Coyle? COMMISSIONER COYLE: I would just like to ask a question. Page 328 March 9 & 1 O, 2004 Is there any relief sought by this petition that is not also sought by the next petition? MR. VOLPE: The answer to that question is yes, Commissioner Coyle. The clustering issue is an issue that's common to both, but your staff did not answer the clustering issue as it relates to -- correct me if I'm wrong, Mr. Pritt -- the official interpretation. They didn't answer it. So this process that we're involved in is going to take the clustering issue out, number one. Number two, the arguments that we've made as it relates to how do you measure minimum yard requirements, that's not an issue that was addressed. Mr. Pritt addressed how the staff responded to his five questions, and several of them were not answered. Part of the reason why they didn't answer them was because they had previously rendered an interpretation. And if you look at your Land Development Code again, these are very important issues that cannot be dismissed lightly. Frankly, once the staff has rendered its interpretation, the Land Development Code provides that that interpretation stands until you reject it, modify it. So they rendered an interpretation as it relates to clustering in connection with our request. When Mr. Pritt asked the question -- Mr. Hardt did -- staff said we're not going to answer that question. And they probably shouldn't have because it said you've already got it out there, we've already told you our interpretation. These procedural tactics that are being engaged in are to deprive the property owners of their opportunity to have you review these interpretations. And, you know, you have the discretion, I've heard the motion, I've heard the second. The basis of the appeal is it was timely filed, it was filed within 30 days. It says the basis was contrary to law, the interpretation was attached to it and our request was attached to it. If you told me you can't consider all of those Page 329 March 9 & 1 O, 2004 supplemental materials, letters and the like, that would be fine. But to say that you lost jurisdiction on the basis of timeliness is, in my opinion, going to deprive these people of that issue. And Commissioner Coyle has said that, you know, we heard the clustering issue, we've heard the clustering issue. Well, the other part of what you're going to hear over here on the other side from the property owner is that when it comes to the presentation of clustering, he's going to say that that interpretation -- and he'll speak for himself, but he's going to say that that interpretation wasn't made and so there's no question there. So they're going to take that away from the property owners and you're not going to be able to interpret it. You can interpret it and say staff was correct, that they properly interpreted the clustering provisions of the PUD, and you can do that in the context of this appeal. You can't do it -- in my opinion you're probably not going to be able to do it in the context of Mr. Pritt's appeal. And that's significant in the whole scheme of things. So in answer to your question, Commissioner Coyle I think asked the question, are there some issues that if we go ahead and dismiss this appeal as being untimely, are there some issues -- the answer is yes. And those are critical. And again, the notice of appeal was filed within 30 days. Supplement -- it said -- and at the end it said we're going to supplement it not later than 30 days prior to with a memorandum. The memorandum is my argument. The appeal was timely. And if you look at the section that says that -- what's required, it says -- give me just one moment, because it's so important here. COMMISSIONER COYLE: Mr. Volpe, let me just finalize my statement concerning this. I have just scanned the response to Mr. Hardt from our staff. They very clearly mentioned both the common architectural theme and the clustering issue here. The issue of Page 330 March 9 & 1 O, 2004 greenspace is imbedded in that argument, since it is a condition for clustering. I see no difference whatsoever in the issues to be -- to be decided between your petition and the second petition. So I would support this motion. COMMISSIONER COLETTA: Let's call for the motion. CHAIRMAN FIALA: Commissioner Henning? COMMISSIONER HENNING: I'll let it lie. CHAIRMAN FIALA: Okay, fine. MR. WEIGEL: Do you close the public hearing at this amount -- at this time to discuss and vote on the motion? CHAIRMAN FIALA: We close the public hearing for -- MR. WEIGEL: This is actually an advertised public hearing, so CHAIRMAN FIALA: For 7(B)? MR. WEIGEL: That's correct, yes. CHAIRMAN FIALA: So at this time I will close the public hearing for 7(B). MR. WEIGEL: You have a motion and second on the floor. I'm stating ahead what you'll be probably saying. And if you have any further discussion prior to the vote. CHAIRMAN FIALA: Thank you. You've said it all. Okay, Commissioner Halas? COMMISSIONER HALAS: I want to make it -- I want to get it on the record, I want to make it clear that everyone here has the opportunity to speak on behalf of the issues that we're talking here, about clustering, about greenspace, that this will be brought up in the next presentation, which is going to be 7(A). I feel it's very important that the people there in Pelican Bay are heard, and I want to make sure that if they have anything that pertains to clustering, greenspace, that this is all going to be heard on 7(A). And that is -- it's pertinent to what we're trying to accomplish here Page 331 March 9 & 10, 2004 today. CHAIRMAN FIALA: I just have one more question. I could see that the appeal was filed. It wasn't filed completely. With it said they were going to file the rest of it later. And I'm having a problem deciding -- I mean, I'm having a problem judging, if an appeal was filed and dated properly, but it wasn't complete, does that mean it's not acceptable? MR. WHITE: I think that Mr. Volpe's argument was that because he had attempted to advise, I guess at that point, the Planning Services Director he was going to supplement and provide some substance to his appeal, that it's timely. And I think that -- that he cannot cure the untimeliness and change the rule just by asking -- CHAIRMAN FIALA: Patrick, try and just answer my question. When he -- MR. WHITE: I don't think it cures him, Madam Chair. CHAIRMAN FIALA: Pardon me? MR. WHITE: I don't think that -- CHAIRMAN FIALA: So in other words, filing the appeal as it was, but it wasn't complete does not make it acceptable; is that what you're saying? MR. WHITE: Yes, ma'am. CHAIRMAN FIALA: Okay, thank you. I'm sorry, it's hard for me to -- so I just have to ask it in basic terms. MR. WEIGEL: Madam Chair, one other thought comes to mind, before you close the public hearing. Commissioner Halas was talking about the desire for those who wish to speak to certainly have the opportunity to speak on the other petition, which is 7(A). It wouldn't be inappropriate with the speakers that are on file right now, if they wish to speak on this one and then close the public hearing and have your motion invoked. That way no one can say who had signed up to speak they didn't get to sign up and speak on this -- Page 332 March 9 & 10, 2004 COMMISSIONER HALAS: That's what I'm concerned about, I want these people to be heard. MR. WEIGEL: -- on this particular one. And then there'll be other opportunity to speak on -- CHAIRMAN FIALA: Okay. So if'we have anybody wanting to speak on this particular -- do we have any -- anybody signed up? MS. FILSON: Thirteen. CHAIRMAN FIALA: Pardon me. 13 for this particular subject before-- well, we have -- MS. FILSON: A lot of' them say 7(A) and B. But for Commissioner Volpe's side, I believe I have 13 speakers. CHAIRMAN FIALA: Okay. Commissioner Halas? COMMISSIONER HALAS: That's what I want to make sure, that these people are heard. That's what they're here for today, that's what they've been sitting out here for today, and I want to hear from them. CHAIRMAN FIALA: But we want to hear them on the legality of the appeal, right? COMMISSIONER HALAS: I don't think that should even enter into it-- CHAIRMAN FIALA: That's what we're talking about right now COMMISSIONER HALAS: -- we should have -- let these people that are here, because they did not know-- CHAIRMAN FIALA: Well, yeah, we do want to hear that -- COMMISSIONER HALAS: -- they did not know that this was -- that we're to this point in the deliberations of what we're going to do. And I still feel that they should be listened to. CHAIRMAN FIALA: Absolutely. Do you want to have them -- COMMISSIONER HALAS: I think we ought to reopen this -- CHAIRMAN FIALA: I would. I would, Commissioner Halas. Page 3 3 3 March 9 & 10, 2004 Let me just -- just so that I understand, okay? COMMISSIONER HALAS: Sure. CHAIRMAN FIALA: Okay. Right now we have a motion on the floor and a second for the appeal, whether it's acceptable or not. Not about all of the other things, right? COMMISSIONER HALAS: Okay, then when are we going to let the -- CHAIRMAN FI^IJA: Well, next. This -- I under -- let me just make sure, because I want to make sure nobody is left out of this equation. By voting on this, does this mean that nobody can talk about the rest of their concerns? MR. WEIGEL: No, of course they can talk about -- in their three minutes they can talk about anything they want to. But you did have speakers signed up and Ms. Filson's indicated that some were for 7(A) and 7(B) and some were for 7(B). So any of those that at least signed up for 7(B), whether it was a combination or singularly, can still speak. And this isn't untoward or different from general Board meetings where from time to time the Board will put a motion on the floor and then allow speakers to come -- CHAIRMAN FIALA: Right. I'd be happy to open the meeting back up -- MR. WEIGEL: You actually haven't closed it yet. I suggested to you that you could, but when we got into this discussion -- CHAIRMAN FIALA: But I really did close it, so I have to open it back up again. MR. WEIGEL: All right. CHAIRMAN FIALA: Yes. Commissioner Coyle, then Commissioner Coletta. COMMISSIONER COYLE: Let me see if I can propose a solution that I think will work to the best advantage of the public here. Page 334 March 9 & 10, 2004 The public is interested in challenging the legality of these interpretations by staff, okay? I don't think the public is interested in trying to debate the LDC requirement that requires something to be in in 30 days and be complete. Now, if the public were to come up now and speak at a time when we are debating an LDC requirement that governs the timing of submission of a petition, they're going to want to talk about setbacks and additional open space and that sort of thing. But that's not what we're considering now. If we -- once we consider this issue, we will then go into the other petition which addresses all of the things the people here are interested in. And that's when I would encourage the public to speak, because I think it's at that time that your opinions would have the greatest impact on the decision. Otherwise, it appears to me you'd have to do it twice: Speak now about something that really has nothing to do with setbacks or clustering or open space, or let this particular motion play out and then we have to go right back into the process of considering the issues that you are sitting here to try to resolve. So that would be my recommendation. CHAIRMAN FIALA: Well, I just -- that's exactly what I was trying to say before was, you know, we should finish this subject before we get on to the next. But I wanted to make sure that by voting on this subject we did not then deprive them of speaking on the next subject. We wanted to make sure -- now, this doesn't null and void the next subject; is that correct? MR. WEIGEL: Oh, absolutely not. This is -- CHAIRMAN FIALA: Okay, fine. MR. WEIGEL: -- totally separate from 7(A). CHAIRMAN FIALA: Okay, Commissioner Halas -- oh, and Coletta. I'm sorry, you were first. COMMISSIONER COLETTA: Yes, I was. I just wanted to say that you and Commissioner Coyle have it right. But one of the things Page 335 March 9 & 10, 2004 that they have a right to do is you have to speak twice. And if you want to vary from the subject a little bit and be able to do it twice, that's your option also. Of course, you also have the option to waive and then we can move on to the next item which will have more merit to what we're trying to deal with. COMMISSIONER HALAS: But also -- also I think there's some people here that said they had to catch a bus or transportation back. So I feel that why -- they're here today, they spent all day today, let's give them the opportunity to speak out. And then that way they can catch a bus, go home, and then we can go on with the deliberations on this thing and make a determination. I'm sure that these people, once they speak, that they'll get the point across and I don't think they'll come back and want to speak again a second time. CHAIRMAN FIALA: Right. Do we have anybody who has signed up to be a speaker, anybody in the audience who wanted to speak on this particular item, which is the appeal? (No response.) CHAIRMAN FIALA: Okay, fine. Everybody wants to speak on the -- MR. PRITT: Madam Chair, you're talking about 7(B) now, which is the Property Owners Association. COMMISSIONER HALAS: Right. MR. PRITT: Okay. COMMISSIONER HALAS: That's who is out there, the Property Owners Association. CHAIRMAN FIALA: Right. And so what we're talking about right here is whether-- we have a motion on the floor and a second with regard to accept the appeal or deny. That's pretty well basic, right? And so -- COMMISSIONER HALAS: The point I'm trying to make, it's 4:30. These people want-- would like to speak because they represent Page 336 March 9 & 1 O, 2004 the Property Owners Association, and some of them have got to catch transportation. MR. VOLPE: The transportation can be adjusted, Madam Chairman, I've just been told that. There are a number of people who have registered to speak. Probably won't take very long. They've registered to -- CHAIRMAN FIALA: If you want to have them all up now, that's -- MR. VOLPE: Yeah, I think that's what we're talking about in connection with the appeal that was filed on behalf of the Pelican Bay Property Owners Association. It's unfortunate that the issue on the procedures that have just come up and on which there is a motion didn't come up at 9:00 this morning. And again, I object to the action that is occurring -- CHAIRMAN FIALA:' Well, they never had a chance to, because I gave you the option first of presenting -- MR. VOLPE: No, no, the staff-- CHAIRMAN FIALA: That's my fault. I don't want to -- COMMISSIONER HENNING: Madam Chair, I want to correct that. It was brought up in the beginning of the meeting, okay? So -- but knowing that the Board of Commissioners wants to hear the public and the public's representation, Mr. Volpe, we went ahead with it, okay? MR. VOLPE: But on that basis then maybe we should have the rest of the people who have registered to vote -- to speak to come up and address the Board. MR. YOVANOVICH: Madam Chair, if I might, first of all, there's a limited motion in front of you. It's on the procedure of whether or not 7(B) should go forward. We haven't even presented a case yet. If they're going to come up and just speak on whether or not you should dismiss 7 -- no, it's 7(B) that we're talking about, 7(B). If Page 337 March 9 & 1 O, 2004 they're going to come up and speak about dismissing 7(B), fine, but, you know, we haven't even presented our case. We'd like you to tell us whether or not there's going to be a hearing on 7(B). I think there's a motion, and if it's appropriate, if we could just vote on the motion we'll know. They're still here and able to speak on 7(A), which -- and I'm sorry we took it down. Commissioner Coyle is absolutely correct, the central issue in this dispute, which is clustering and common architectural theme, was raised in the appeal on 7(A). So these people will have an opportunity to speak on that issue in 7(A). CHAIRMAN FIALA: Well, that's kind of what I thought we were saying all along. And we're not trying to stop anybody from talking. They've rearranged some transportation issues. And as soon as we can stop beating this one to death and vote on it, then we can move on to letting everybody speak. Is that all right with everybody, Commissioners? COMMISSIONER COLETTA: CHAIRMAN FIALA: All right. And all in favor, say aye -- COMMISSIONER HENNING: COMMISSIONER COLETTA: Madam Chair, it's your call. Call for the question. No, no, no. Hold it, hold it, hold it. CHAIRMAN FIALA: Oh, I have to close the public hearing, right? COMMISSIONER COLETTA: No, more than that. I'm sorry, I got a real problem here. I don't see why we want to take away the right to speak. CHAIRMAN FIALA: Jim, we're-- I mean, Commissioner Coletta, we're not trying to stop them from speaking. COMMISSIONER COLETTA: No, I know that, I know that. But, I mean, we got two different items: We got one up before us now we're going to do finality to it, and I did make the second for it. We have people out there that may have to catch a bus, they may be able Page 3 3 8 March 9 & 1 O, 2004 to stay, they may just want to leave. But in any case, even if they spoke twice, I don't have a problem with it. I imagine a number of them are probably going to want to wait. CHAIRMAN FIALA: But don't you want them to be addressing the subject at hand? I mean, you don't want them to talk about something else when we're focusing on this, right? COMMISSIONER COLETTA: It's just-- the way -- I feel it's their vested three-minute time period, to be able to use it -- CHAIRMAN FIALA: Yes, but we're going to give them all that after we stop beating this to death. MR. VOLPE: Madam Chairman, the only comment that I would have, and I apologize again, but you're about to move on a motion to say that the appeal was untimely -- MR. YOVANOVICH: Madam Chairman? MR. VOLPE: If there's a further appeal -- ! just need to say, if there's a further appeal, we would like to have a record so that all of our case is before the Board in terms of its interpretation. So I'd ask you just to defer a final vote on that motion until you've heard these people speak, then you've got whatever information, your County Attorney, whether you can consider it or not, then you can make that determination. But that's all I'm saying. MR. YOVANOVICH: Can I offer a compromise? COMMISSIONER COYLE: Then you're then going to have to give the other side the opportunity to speak also. CHAIRMAN FIALA: Absolmely. MR. YOVANOVICH: Why don't we do this -- COMMISSIONER COYLE: So you're talking about at least another hour -- no, another two hours before we ever get to the point of considering this particular motion. Because you not only are going to have 13 people come up and speak, but in all fairness, you've got to have the other party present their position concerning this particular Page 339 March 9 & 10, 2004 motion and why it should be approved. So we're talking about probably at least another two hours -- CHAIRMAN FIALA: And just for the record, I'm leaving at 6:30. COMMISSIONER COYLE: -- before we ever get to vote on this particular item. So we won't get to the central issue of the validity of the staffs interpretation of Cap d'Antibes until sometime around 8:00 tonight. And that's assuming we don't break for dinner. Now, I understand that -- the intense interest by some of our Commissioners to make sure the public is heard, and I think we should do that. COMMISSIONER HENNING: We do. COMMISSIONER COYLE: But I think the public should be heard on the subject at hand. And if we're going to have the public be heard, then they must discuss, in my opinion, the question of timeliness of submission and the code that requires this to be submitted in that period of time, and they would have to address why it wasn't submitted or why it was submitted and provide competent evidence to suggest that it does meet the requirements. Now, if you have speakers who are qualified to make those kinds of statements, I'm happy to listen to them, but I think it's a waste of your time and the public's time to come up here and speak about something that has no relevance to what we're talking about, and then when we get into the relevant portion, they might be gone. And I don't want to see them get gone at that point in time. I want to be able to hear them when we get into the revelant -- revelant (sic) discussions. MR. VOLPE: Commissioner Coyle, the issue that is being addressed now is a legal issue, question of timeliness of appeal, whether it was complete or not complete. Your County Attorney has given you some guidance in that regard. It's a question of an Page 340 March 9 & 1 O, 2004 interpretation of another provision of the LDC. At the outset, the procedure was we've got a consolidated hearing on both. So I think that we're going to get to this question of proper interpretation, clustering and the like. And it may be whether you vote on this motion now or you defer, that same testimony I'm sure is going to be offered. You've already assured yourself of the fact that the staff, they've cross-examined witnesses, that you're going to have them develop their record on those issues, so we're going to have the same record. So it's still going to be -- COMMISSIONER COYLE: Is it your intent to present that evidence twice? MR. VOLPE: No, it's under the consolidated hearing. We presented -- COMMISSIONER COYLE: No, no, no. There's no consolidated hearing. We're voting separately on these two issues. So don't try to confuse those two points. Now we are considering these issues separately. We adopted a procedure for convenience for all involved. But my question to you is, are your public speakers, the people you want to speak, are they going to speak twice on this subject, on the issue? Or are they only going to speak one time? And if they're only going to speak one time, don't you want them to speak at the point in time when we're considering that issue? MR. VOLPE: Well, the issue -- I guess I'm confused. But I can only tell you, I don't know what the public is going -- I don't know what each one of these speakers are going to say. I don't know that they can in their own minds sort out between 7(A) and 7(B). I think you should just hear them speak on the issues that are important -- CHAIRMAN FIALA: Let me interrupt you, please. Commissioner Halas, who is the Commissioner for this district would like to hear everybody speak; is that correct? Page 341 March 9 & 1 O, 2004 COMMISSIONER HALAS: That's correct. CHAIRMAN FIALA: Let's go on. We'll hear them. MS. FILSON: And I received two late speakers. Shall I include those as well? CHAIRMAN FIALA: Yes. MS. FILSON: And it's three minutes? CHAIRMAN FIALA: Yes. COMMISSIONER HALAS: I have one other question -- MS. FILSON: And then I have one other question so that I have clear direction. Mr. Yovanovich's group had 40 minutes, they're down to 30. Shall I give them 30 when we return? CHAIRMAN FIALA: Yes. MS. FILSON: Okay. The first speak-- COMMISSIONER HALAS: Question. I have one question, and I'm going to give this -- I'm going to direct this to the legal staff. Why did we -- if this was the case, why didn't we address this issue first thing this morning so we didn't have to go through this ordeal of eight hours here? COMMISSIONER HENNING: We did. COMMISSIONER HALAS: Well, then we should have voted at that time. Somebody should have given us the guidance to vote on it at that time and get rid of it. COMMISSIONER COLETTA: We got it. MS. FILSON: Are you ready for the speakers? CHAIRMAN FIALA: Ready for the speakers. MS. FILSON: James-- MR. RAIA: I just want to ask a question. And -- to save time. If you have everybody come up now, is it going to make any difference? I don't -- I have to agree with Commissioner Coyle. CHAIRMAN FIALA: I do too, but -- MR. RAIA: I mean, you know, it's one thing to talk, it's another Page 342 March 9 & 10, 2004 thing to be heard. They have to be done together. If they're not going to be done together, let's not waste time, let's move on. But if we're going to be heard the second time around and it's going to help you make your decision, then let's go in that direction. I'd like to know, since I've wasted a lot of time talking, does that mean that everything I said has been thrown out and you're not -- CHAIRMAN FIALA: Of course not. MR. RAIA: All right. CHAIRMAN FIALA: And what I'd like -- what we've asked for, but it seems that it's not going in that direction, what we've asked for is any of the speakers who want to speak on this particular subject. But I understand that other people might want to speak. So we're not saying that we're confining -- MR. RAIA: I think I can speak for just about everybody here that they would not want to speak and not be heard. They would prefer to wait and -- CHAIRMAN FIALA: Oh, we'd listen to them, but you know -- MR. RAIA: Yeah, but I mean it's not going to affect the ruling and so let's not waste everybody's time. COMMISSIONER COLETTA: They can waive. They can waive. Each person can waive and we can go right through the whole list. But someone may wish to speak now. MR. RAIA: Ask them right now. COMMISSIONER COLETTA: No, one at a time, that's the -- we have to do by it the way we always do it. CHAIRMAN FIALA: One at a time -- and if they waive, then they have the opportunity to speak when the next subject comes up, okay? So we need to make that clear. MS. FILSON: So I'm going to call their names twice? CHAIRMAN FIALA: Yes, ma'am. MS. FILSON: Okay, James Weaver? Page 343 March 9 & 1 O, 2004 MR. MS. MR. MS. MR. MS. MS. MS. MR. MS. MR. MS. (No MS. MR. MS. MR. MS. MR. MS. podium? WEAVER: FILSON: HULING: FILSON: HOBIN: FILSON: Waive. Marc Huling? I'll speak later. Jim Hobin? Waive. Jacqueline Mendelsohn? MENDELSOHN: Waive. FILSON: Baron Herman? HERMAN: Waive. FILSON: Merlin Lickhalter? LICKHALTER: Waive. FILSON: Dorsey Baldwin? response.) FILSON: OBLEY: FILSON: BRAMSON: Waive. FILSON: Richard McGahren? Dorsey Baldwin? Ross Obley? Yes. He will be followed by David Bramson. McGAHREN: I think I'll speak. FILSON: Okay. Would you like to come up, sir, to the You'll be next. Right. You're on. MR. OBLEY: Madam Chairman, my name is Ross Obley. From 1978 until 1985, I was the senior Westinghouse community development official for Collier and Lee counties. My staff and I started Pelican Bay. I've always been proud of Pelican Bay and the many awards it has received for quality development. Unfortunately this proposed building, Cap d'Antibes, will be a blight on this distinguished community and much of my pride will be extinguished. The concept of clustering is a key issue in this erroneous county approval. As we developed Pelican Bay, clustering revolved around Page 344 March 9 & 10, 2004 single-family houses and villas. Four issues are involved in clustering: Property line setbacks, building separations, greenspace, and view corridors. When a restriction on one of these is relaxed, such as building separation, the other issues, such as greenspace and view corridors benefit. In this proposed building, all four issues are lost. I have heard county officials state that building separations have been relaxed in Bay Colony for high-rise or Group 4 buildings. As this area is an unseen gated community, I don't know whether they're right or wrong. But I do know that the string of high-rise buildings along Pelican Bay Boulevard where this building is proposed have consistently adhered to the original concept. Add the heights of the two buildings, two adjoining buildings, divide by two, and the result is the obliged separation. For example, if one building is 200 feet high and the next one is 150, you divide 350 by two and that requires 175-foot separation. That separation, which we have along Pelican Bay Boulevard, continues down Crayton Road in Pelican Bay. A building of this size does not belong along Pelican Bay Boulevard where all can see it. Nor do ! believe it belongs anywhere within Collier County. Thank you. MS. FILSON: 'David Bramson. He will be followed by Richard McGahren. MR. McGAHREN: Ladies and gentlemen, I'm a resident of the St. Raphael. When I was attending college, I took a course in legal institutions. And one of the first concepts that was discussed by the professor was the concept of procedural due process, and he also discussed the concept of substantive due process. Procedural probably deals with things like notice of people. Substantive due process deals with the correct application of the law to the particular matter. I believe that the determination in this appeal represents an Page 345 March 9 & 10, 2004 appalling denial of both procedural due process and substantive due process. And it represents a gross violation of the rights of Pelican Bay and St. Raphael residents. And I feel that myself in particular, because when my wife and I were first viewing Pelican Bay and considering purchasing a unit, we were impressed by the spacing between the condos and the similarity in size and height and the placing of those buildings on the lots. And I believe we would not have purchased if we knew that there was going to be a monstrosity hovering next door to the St. Raphael, throwing the area out of proportion. Thank you very much. MS. FILSON: Richard McGahren (sic). Libbie Bramson? MS. BRAMSON: Waive. MS. FILSON: David Bramson? MR. BRAMSON: Waive. MS. FILSON: Henry Price. Henry Price? He will be followed by Aldo Magistrelli. Did he waive? MR. PRICE: Madam Chairman, Henry Price. ! live in the St. Laurent. I would only like to speak to the procedural issue at this time. I've been a trial lawyer for 40 years. I am absolutely shocked that a recommendation is made by your County Attorneys to dismiss this appeal as jurisdictional -- based on a jurisdictional requirement with no citation of authority, with no basis that they've given you to dismiss this appeal and deny these people the right to have their decision made on the merits. And I urge you not to accept that recommendation from your County Attorney. MS. FILSON: Partee. MR. PARTEE: speak on part B. MS. FILSON: Aldo Magistrelli? He'll be followed by Frank I'll waive, but I'd like to reserve the right to Okay. Richard Laughlin? Page 346 March 9 & 10, 2004 MR. MAGISTRELLI: My name is Aldo Magistrelli. I've been in commercial real estate for 35 years, in very big projects in another state. I've never seen anything like this. I -- you've made a statement earlier today that you were hoping that the people in this room did not hold you responsible for what happened in the past. We are not. I don't think there's a person among us that looks at you people and says that you're guilty for what's happened here. All we're asking you to do, all we're asking you to do is take the advice of 13,000 people that live here, that invested in this county, that invested in this state, bought properties here, were led to believe, and I was one of them, that because I live in the St. Raphael -- and where I live in my -- in the building is at the opposite end, so I don't even see this project, or hardly see it. However, it's such an injustice, that it can be corrected. You know, and to go on whether or not everything was put in here at the proper time or not is very irrelevant to the facts here. This is not going to end here. People here are not going to give up. You don't want to become a part of this. You're too good for that. You can correct this. And you can put it back to -- what you have to do is take your shoes off, try and put the 13,000 residents in this county's shoes on that live in Pelican Bay and see what you would do. Thank you. MS. FILSON: Richard Laughlin. And he will be followed by your final speaker, James Weaver. MR. LAUGHLIN: My name is Richard Laughlin, and I'm on the board of directors of the Pelican Property Owners Association. I've been a trial lawyer most of my professional career, and I want to point out to this Board that this appeal was taken on the basis of interpretation of the legal issues. It requires absolutely no exhibits. It requires nothing other than legal arguments to make a conclusion. And for the county attorney to say that it should be dismissed based on something that he says is missing without detailing what he thinks is Page 347 March 9 & 1 O, 2004 missing I think is absolutely wrong. And thank you very much for your time. MS. FILSON: James Weaver? MR. WEAVER: Thank you for the opportunity to appear before you today. My name is Jim Weaver, and I am a resident of St. Raphael. St. Raphael is the building just north to the planned Cap d'Antibes. My wife and I purchased our home primarily for the panoramic view of gulf bay--of Gulf of Mexico and the beautiful and natural setting. Clearly, many of us who purchased high-rise homes do so because of panoramic views that it provides. The current site plan and positioning of Cap d'Antibes without a doubt will cut off a good portion of our beautiful view to the southwest. It is absolutely mind boggling to me to think that this project was approved by staff without notice whatsoever to neighborhood homeowners. By the sheer size of the proposed building, any reasonable person would have rightfully assumed that the immediate neighborhood homeowners would find the proposed project to be overwhelming and certainly injurious to the neighborhood. The fact that so many people here are upset about the building shows that the consensus is that this huge building is going to be injurious to the neighborhood. Homeowners immediately adjacent to Cap d'Antibes project are so concerned that many of them are considering selling their homes before further devaluation sets in. The fact that no materials were ever submitted that would demonstrate that Cap d'Antibes was not injurious was due to the fact that it would be impossible to prove that it wasn't injurious. From what I understand, a lone individual on the county staff made the approval decision without even viewing a simple artistic rendition of the project and without fully understanding its location Page 348 March 9 & 1 O, 2004 and the effect on the neighbors, particularly to the north at St. Raphael. We ask that you give this information serious consideration as you make your decision today. Thank you for your time and your due consideration. MS. FILSON: That was your final speaker, Madam Chairman. CHAIRMAN FIALA: The last of our speakers. We have a motion on the floor to -- COMMISSIONER COLETTA: Close the public meeting? CHAIRMAN FIALA: Oh, yes. First I need to close the public meeting for 7(B) with regard to the appeal. And now we have a motion on the floor to disregard the appeal; isn't that the way it went? And was that motion made by you, Commissioner Coyle? COMMISSIONER COYLE: Henning. CHAIRMAN FIALA: By Commissioner Henning. COMMISSIONER COYLE: Seconded by Commissioner Coletta. CHAIRMAN FIALA: And seconded by Commissioner Coletta. Any further discussion on this particular item? COMMISSIONER COLETTA: You may wish to have the County Attorney restate it. CHAIRMAN FIALA: Okay. Would you restate that, the motion, please? MR. WEIGEL: Yes. It's a motion to dismiss the appeal pursuant to Section -- pardon me, let me get my mic. -- pursuant to Section 1.6.6 of the Land Development Code which specifically requires that such request, meaning for appeal, shall state the basis for the appeal and include any pertinent information, exhibits and other backup information in support of the appeal. And that the information, backup and other materials were submitted beyond the submittal Page 349 March 9 & 1 O, 2004 period, and therefore, not admissible for review by this Board sitting as a Board of Zoning Appeal. That's close to a restatement of what I said the first time. CHAIRMAN FIALA: Well, I -- I'm still -- as far as discussion goes, I'm still having a problem with, you know, being that they filed an appeal-- MR. WEIGEL: Yes. CHAIRMAN FIALA: -- within the time, but it did not contain all of the information. MR. WEIGEL: It didn't contain any of the information, other than the assertion that the interpretation was illegal, or contrary to law. CHAIRMAN FIALA: But we're talking about just the appeal. Did they file it or not? Or are we trying to determine whether it was a legal appeal that was filed; is that what it is? COMMISSIONER HENNING: Commissioner Fiala, like Mr. Weigel said, there was no backup with the appeal. CHAIRMAN FIALA: Right. But legally was there supposed to be backup? That's what I'm asking. MR. WEIGEL: Absolutely, legally, pursuant to one -- CHAIRMAN FIALA: Legally there was supposed to be backup with the appeal? MR. WEIGEL: That is correct. CHAIRMAN FIALA: All right. That's, that's what I need-- MR. WEIGEL: And part of that is related to the due process -- this is not part of the motion, it's part of my explanation-- as part of the due process requirements is that you don't have an appeal hearing by ambush or by surprise with materials and experts being submitted significantly subsequent to the submittal period and close to or at the hearing. CHAIRMAN FIALA: Okay. We have a motion on the floor and a second. It's been repeated by our County Attorney. Any further Page 350 March 9 & 1 O, 2004 discussion? (No response.) CHAIRMAN FIALA: All those in favor, say aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COYLE: Aye. CHAIRMAN FIALA: Opposed? COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Opposed, Commissioner Halas. 4-1 vote. Thank you. That's a Item #7A ADA-2004-AR-5218 PELICAN BAY FOUNDATION, 1NC., REPRESENTING BY ROBERT D. PRITT OF ROETZEL AND ANDRESS, REQUESTING AN APPEAL TO OFFICIAL INTERPRETATION INTO-2003-AR-4307 RELATING TO THE APPROVAL OF SDPA-2001-AR-412 FOR THE CAP D'ANTIBES CONDOMINIUM PROJECT, WATER PARK PLACE, WITHIN THE PELICAN BAY DRI/PUD- MOTION TO DENY FAILED AND MOTION TO APPROVE FAII,ED Okay, moving on to the next. Are you next? You still have 30 minutes on the floor. MR. CRITCHLOW: Would it be appropriate to take five minutes? CHAIRMAN FIALA: Yes, in fact, our gals need about 10 minutes. So please do. (A recess was taken.) MR. WHITE: Ladies and gentlemen, if you could please be Page 351 March 9 & 1 O, 2004 seated, we're about to resume. Ladies and gentlemen? COMMISSIONER COYLE: I think they've gotten to the point where they don't really care. CHAIRMAN FIALA: Let me say before we proceed, I just wanted to say that back in January, I agreed to give a speech to the power squadron at 7:00 on Marco Island. And of course I never knew that I was going to be scheduled to do this today, nor did I realize it was going to last so long. So at 6:30 at the latest I must leave here. Commissioner Coyle will take over. But I just wanted to announce that so everybody understands. And who knows, maybe we'll get through with this faster and we'll be done by 6:30. That's wishful thinking. Okay. Rich, you're on. Oh, I'm sorry. MR. CRITCHLOW: That is Rick, so -- Madam Chairman, members of the Board, again Richard Critchlow on behalf the property owner Parcel J Joint Venture. We begin today with trying to focus on what is before this panel and what the legal standard is that the Board is faced with. We cite you to the Second District opinion, which is the district within which this county sits, which quotes from our Florida Supreme Court about what is the standard before you. And again, the question is not whether upon review of the evidence in the record there exists substantial competent evidence to support a position contrary to that reached by the agency. Instead the circuit court should review the factual determination made by the agency and determine whether there is substantial competent evidence to support the agency's conclusions. What that means is, and I think it's self apparent, is that people may bring in, and the appellant or appellants may bring in five or six different architects, all of who might say something different. That's not the test. The test was at the time was there substantial competent Page 352 March 9 & 1 O, 2004 evidence at the time that the director issued this letter of interpretation to support the legal and factual determination which she made in issuing her letter of interpretation. I cite to you as well another Second District decision for your consideration, the case of Hillsborough County Board of County Commissioners versus Longa (phonetic), which says that the opinion of the zoning experts from the county department of development and coordination and the city/county planning commission's opinions are sufficient substantial competent evidence to support the determination which it has made. What appears -- and we're going to try to confine this to the simple legal issues which are covered by the second letter of interpretation. There's only two questions which are raised within that which are the subject of this appeal. What's clear here is that the nature of this objection is that the appellants do not like the PUD, the appellants do not like the building, and the appellants are trying to overturn the approval process that occurred in connection with the SDP back in 2001. Those are not issues before this panel. The issues before this panel are to test by substantial competent evidence whether this director had substantial competent evidence to issue the opinions that she did. I also bring to your attention that this is an opinion, a letter of interpretation, which the County Attorney has reviewed and determined to be appropriate. This is an opinion about interpretations and procedures which have been consistently applied in connection with the same PUD in over 16 projects dealing simply with high-rises. I add, however, this PUD does not deal simply with 7.04.03 relating to high-rises in Group 4. The identical provision in determining for clustering -- and we've heard some comment that the clustering was intended to apply to single family or perhaps duplex type complexes -- the very same provisions exist within this PUD in Page 353 March 9 & 10, 2004 Sections 4.04, 5.04, 6.04, as well as 7.04 that provide the identical procedures for reducing the minimum yardage that exists to a lesser amount. And the provisions within those, as well as 7.04.03, which I'll put up on -- for the Board, for you again, are perfectly clear that the procedure is set forth in 7.04.03(C), which requires an administrative process. It does not require a process covered by the Land Development Code. As we spoke about earlier today, this planned urban development came into existence in 1977, 14 years before the Land Development Code ever came into existence, 15 years before there was a hint of any words dealing with cluster in the Land Development Code. What the creators of the PUD had in mind had nothing to do with what the Land Development Code subsequently said 14 or 15 years later. And that's important, because the PUD does control. The law of the State of Florida, the law in land development is that the PUD is a specific site zoning ordinance. It controls for all the property owners that exist within that planned urban development. The LDC or a later ordinance cannot change, cannot alter the terms of the PUD unless the PUD itself is amended. It is the controlling and guiding light in the interpretation of the provisions that exist within it. Unless it is silent. And that's not the case here. I would also bring to the panel's attention that this is the last of the parcels within Pelican Bay. Throughout Pelican Bay, whether it's Bay Colony, whether it's Crown Colony, whether it's any numbers of others, as is attached within the record here, 16 or 17 other high-rises, hundreds of single-family residences have all been clustered, moved closer together by the same procedure. At this point in time, and as Mr. Schmitt said first thing this morning is, if for some reason this letter of interpretation is modified or changed, part of the task is going to be to go back to see how that change would affect every other procedure which is applied to every Page 354 March 9 & 1 O, 2004 other building in Pelican Bay where this very same procedure has been applied. If it's used strictly under 7.04.03, and I think that's too limited in its guidance, it's going to affect a minimum of 16 or 17 high-rises. Indeed, it will affect St. Laurent, because St. Laurent, by the, by the -- MR. PRITT: I object. This is totally irrelevant. This has nothing to do with anything that is front of this Board. This is absolutely irrelevant to your decision. What the staff might have to do some day, depending upon your decision today, is not relevant. They've spent the whole day talking about how nothing in the past was relevant. Well, I assure you, nothing in the future is relevant concerning this issue. They're just trying to scare you into saying, well, we must make the wrong decision because there -- this would have to be reviewed. And this does not have to be reviewed. You don't have to go -- staff doesn't have to do another thing. And Mr. White has had a memo on that, he's done a memo on that before. What has happens as a result of you making the decision is irrelevant. The consequences of your decision is irrelevant. The issue is what is the correct interpretation, so we object to that. MR. CRITCHLOW: I make that comment only because it's a comment which Mr. Schmitt made this morning, and I wished to address that comment in that context. I'll proceed. That-- this is a procedure which has -- MR. PRITT: Are you allowing him to proceed with that? I strenuously object. MR. CRITCHLOW: I'm past that point. CHAIRMAN FIALA: You're past that point? MR. CRITCHLOW: I'm past that point. MR. PRITT: It doesn't matter. COMMISSIONER COYLE: You can't take it all back. MR. CRITCHLOW: I'm not taking it back. But I'm past it. Page 355 March 9 & 1 O, 2004 CHAIRMAN FIALA: We'll, we'll note that, though. Thank you. Please. MR. CRITCHLOW: The procedures that were applied here again are the ones that have been universally employed. Indeed, as a matter of persuasion, there is precedent within this county by a circuit court. A similar process was instituted not by way of a letter of interpretation, but by a lawsuit by the people who lived in Crown Colony, asserting that common architectural theme was not appropriate, that the procedures employed by the county were inappropriate in determining common architectural theme. And Judge Hayes, in adopting an arbitration award, as a matter of precedent and persuasion said the procedures that were used by the county, which are the identical ones -- MR. WHITE: Madam Chair? MR. PRITT: Same objection. MR. WHITE: Commissioner Halas, I think, had asked us to kind of keep a line with respect to things that are, quote, relevant to the interpretation. COMMISSIONER HALAS: Exactly right. MR. WHITE: And this prior proceeding, I don't know that it is relevant, but I'm at least trying to follow your direction to draw that line. CHAIRMAN FIALA: Thank you. MR. WHITE: And perhaps Mr. Pritt has some additional comments about it, I don't know. CHAIRMAN FIALA: You're hurting your own case, sir. I think that you better move on to something that's maybe more relevant, please. MR. CRITCHLOW: I'll take your guidance. CHAIRMAN FIALA: Thank you. MR. CRITCHLOW: The test then is, is there substantial Page 356 March 9 & 10, 2004 competent evidence to support what this director did in her opinion of November 24 in connection with appeal 7(A? The records upon which she relied, her interpretation of the simple -- of the two simple questions is beyond reproach the only legal conclusion that can be reached from the questions that were posed and legally before her. The first question is: Does the SDP amendment qualify for a reduction from the minimum yard requirements under 7.04.03 of the PUD as a development consisting of clustered buildings with a common architectural theme? The director said we can't rereview the process of the PUD, so I'm going to -- of the SDP, excuse me -- so I have to take a look at the legal issue which you opposed, which is, does procedure set forth in the PUD provide for the determination that a reduction in the minimum yards can be accomplished by 7.04.03(C), if there's clustered buildings with a common architectural theme? As a matter of law she analyzed that. And as a matter of law, that is the only conclusion that can be reached. Because the PUD that is at issue here and the provision of the PUD is the only one that is applicable. The PUD has a very specific provision which says how it must be done. It says it must be done administratively under 2.05. There is no other procedure that is available to the county, based upon the restrictions and specific restrictions of the POD (sic) of how it was to be done. She then answers the question, was there -- ! will -- from my review of the then applicable facts derived from the county records for this SDP, this application would qualify for a reduction from the minimum yard requirements for construction of multi-family buildings over the express terms stated in subsection 7.04.03(C). So the test here is did she have substantial competent evidence to arrive at that conclusion? And she cites what she said -- how she Page 357 March 9 & 1 O, 2004 viewed clustered and she cites what she says about common architectural theme. So we have to resort to what was in the records that she reviewed to determine. Was there substantial competent evidence to review -- or to support what she says? The record that she reviewed and the record that's before this panel is replete, is filled, with substantial competent evidence to support the conclusions that were reached by Ms. Murray in her letter of interpretation. This process began in 1999. The process continued with the submission of three letters of architects which addressed the very issue which was posed by 7.04.03(C). It included a submission. And we've heard that there was no submission relative to the schematic of Cap d'Antibes. Well, it was filed, it was reviewed, and it's in the county records. There were visits to the site to review the project. In December of-- December 20 of 1999, there were revised plans which were filed. Again, addressing engineering, addressing the issues of common architectural theme. On January 18, 2000, there were further revisions to the site plan with the same support -- or with additional support and backup. On February 4 -- 14th -- MR. WHITE: Madam Chair, I apologize for interrupting, and I'm not trying to take the gentleman's time, but I'm not certain that these are indeed things that are in the record itself. Nor do I know whether this is anything that Ms. Murray had relied upon in her review. So-- COMMISSIONER HENNING: MR. WHITE: Okay. being overly conservative. CHAIRMAN FIALA: you be conservative. I believe they are in the record. Then I apologize. I apologize also for That's all right, Patrick. I'd much rather Page 358 March 9 & 10, 2004 MR. CRITCHLOW: Apology accepted. On February 14, the first conceptual site plan approval was issued by the Planning Department. And contrary to what has been said by those who have come before you, there was a deliberate analysis of the requirements of what is a common architectural theme. The Planning Department, in approving a conceptual, not the final, the conceptual site plan development in February of 2000, says the element of common architectural theme consistently applied by this office -- consistently applied by this office means that the buildings are clustered within a unified plan of development-- have a signature unified entryway, which is unquestionable in Waterpark. There is a signature unified entryway for all of the neighborhood. Common landscaping, streetscape and building of similar intensity and volume. The subject site could accommodate two completely separate towers. The towers by themselves are similar in intensity and volume to the existing buildings. Indeed, orientation of Waterpark Towers to St. Laurent and St. Raphael -- again, we've heard today that there was no consideration of St. Raphael to the north; in February of 2000 there was consideration given to it -- are at angles to one another, diminishing the effect of the reduced separation. Development option of one large building could have met the separation requirement from St. Laurent. The developer didn't do that. He created two towers of similar types of size that could have been built on each of the lots. If either one of those was built on each of the lots, each one of them would have been entitled to the same reduction in minimum yards, as was applied in this case. Indeed, because there were two tracts that were put together, one constant building without the separation of the towers could have been built. But that's not what was developed. And the Planning Department considered that. This office acknowledges receipt of written opinions from four architects -- in fact Page 359 March 9 & 10, 2004 it was three, that was a mistake -- representing the work of existing buildings at Waterpark Place who further opine the proposed Waterpark Towers complement and are consistent with the goals of common architectural theme. Citing back to the Hillsborough decision, the Hillsborough-Longo, that opinion of planning was sufficient substantial competent evidence to support what ultimately happened. The process, however, didn't end in February of 2000. And indeed, more submittals were required. Submittals were filed again-- apologize -- in February of 2001, again addressing those issues because of a constant inquiry and a continued inquiry by Planning. On March 30 of 2001, a further submission was made to the county. And in that one, the analysis of the 16 other buildings in Pelican Bay was given to show that this same procedure had permitted 16 other high-rises -- MR. PRITT: Object again. We went through this once before. MR. CRITCHLOW: It's part of the record. It's part of the record. CHAIRMAN FIALA: Sir, could-- Patrick, would you please advise? MR. WHITE: MR. PRITT: I'll do my best. I'll object. In the first place, there is no -- there was no record, was no competent substantial evidence, and we already objected concerning 16 other projects, or -- you have no idea whether those projects were the same or similar. What they're trying to do is, once again, scare you into thinking that you only have one way to go because this is how they always did it. That's -- that might be how they always did it, but that's not relevant to this decision. CHAIRMAN FIALA: And I thought we were just discussing whether -- we were discussing the Planning Director's interpretation. And I don't know how we got on to all these other buildings. MR. CRITCHLOW: The reason is because -- Page 360 March 9 & 1 O, 2004 COMMISSIONER HENNING: But this evidence is in our packet. CHAIRMAN FIALA: Yes, right, but-- COMMISSIONER HENNING: And we're addressing the evidence. MR. CRITCHLOW: And what she said was -- and she said this in her letter. And that's why we resort to it. In her letter dealing specifically with the opinion that is the subject of this appeal. From my review of the then applicable facts derived from county records for this SDP amendment, those are all documents that were within the record of the county's office relative to this SDP amendment. And a part of this record, just to simply show that she reviewed the record to determine that there was substantial competent evidence to support what she said in her interpretation. That's why I go back to MR. PRITT: There was no record until these documents showed up for you for this hearing. So you do not know and she does not know, nobody knows what was in the record. He's talking about what was -- what might have been in files, but we've done a lot of public records requests -- we've done lot of public records requests, and it was not clear at all what was in what file. We found -- we found some of these documents in different files, not even in that file. So all this talk about a record and all this talk about competent substantial evidence is just to fool you. I object. MR. WHITE: Madam Chair, I so far have done my best to keep up with the individual documents Mr. Critchlow has provided to you. And up until this one, I have noted that they were in materials that were presented as exhibits by Mr. Pritt. I do not know as to this particular document whether it was or was not. And if it is not, then I would, under the -- MR. CRITCHLOW: It is. Page 361 March 9 & 10, 2004 MR. MR. MR. MR. WHITE: I don't see it. CRITCHLOW: Which one are you referring to? WHITE: The March 30, 2001. PRITT: I'm talking about the record of the SDP. MR. WHITE: I understand what you're speaking about. And I'm just trying to advise my client that as to this particular document, it wasn't something that's in the record for their consideration brought either by you or the staff. So to that extent, it's, I would guess, something you might want to think of as being new evidence. CHAIRMAN FIALA: New evidence, okay. MR. CRITCHLOW: And it was my mistake. It was in the county files. I was relying upon the exhibit list that Mr. Pritt had prepared, and it was my belief, in error, I might add, that this March 30 letter was part of it. It was not. CHAIRMAN FIALA: Okay. Thank you. MR. WHITE: Thankyou. MR. CRITCHLOW: Okay. CHAIRMAN FIALA: Thank you. MR. CRITCHLOW: What is in the-- what is in the file, however, is the ultimate determination or the ultimate granting by the director of the Division of Planning Services on April 4, 2001. And again, the question is asked, was there a deliberate conscious review of the standards that exist? And there are numerous things that have to be considered at arriving at the common architectural theme. Mr. Mulhere determined that 7.04.03(C), the first bullet point, if you can pull it up -- allows -- the Pelican Bay PUD allows for administrative reduction of the building setbacks where buildings are clustered and a common architectural theme is employed. Two, you have submitted documentation that the project does in fact employ a common architectural theme, as set forth in the PUD document, including similar architectural design theme, the use of Page 362 March 9 & 1 O, 2004 common materials and colors. And that's part of the record, the submittal that showed the palettes, that the colors and the materials were going to be the same on this building as they existed on the other two buildings within. That a gated signature entrance with a landscape theme that includes signage and a decorative pavement treatment. Well, that's all part of the Waterpark Place. It was the same entrance. It was the same gated entrance into the neighborhood. Common treatments throughout the project, the landscaping, wall, street design, materials, signage and lighting. To suggest that he didn't review information is belied by the very letter that he'signs that says I'm going to approve it. That letter alone, again, according to Hillsborough County versus Longo, is sufficient substantial evidence that the process that was used and the opinion was derived by the expert within the Planning Division that this process was satisfied and was appropriate. He went on to say a number of other developments in Pelican Bay have employed a common architectural theme and have been administratively granted a reduction in building setbacks, based upon that provision in the PUD. And again, he refers to how this has been applied consistently as the standards that have been applied. The nature of your request for building setback reduction does not exceed the amount of reduction granted to other similar projects within the PUD under the common architectural theme. Based upon this information and the consistent use of common architectural theme provision set forth in the Pelican Bay PUD, it is my opinion that you may reduce the required separation between structures to a minimum distance of 150 feet and that a 50-yard -- 50-foot yard setback on the north property line is acceptable. Within it he said he asked for and re -- and obtained. And every -- each of these appellants have said the requesting and reviewing certificates or certifications from other architects licensed by this state Page 363 March 9 & 10, 2004 who practice within this community was not fair. Was not right. Well, it was. It was an additional certification. And there's nothing that could be said that would have suggested that that procedure or that practice was inappropriate other than, in fact, the better practice to make sure that the opinion that he had arrived at by himself was supported by somebody else and somebody else's opinions. That's what he did. That's substantial competent evidence. That's sufficient to support Ms. Murray's interpretation. Quite frankly, I do not believe, however, that you need to get there based upon the limited question that's posed under that request for interpretation, because it can only be applied in requesting a legal interpretation, which is, is 7.04.03(C) available to provide a reduction in the minimum yard setbacks if there's a common architectural theme in clustered buildings? Now, I know you've talked about clustered buildings, you've wanted to hear about it. The PUD itself, and we heard their own expert admit to that, was created as a clustered development itself. A clustered concept. The basis of creating the PUD as a clustered concept contemplated and required -- and if we look at the PUD itself, we will see that under 2.03 of the PUD there are specific requirements that open space must be contributed. Must be contributed. If we look to the schedule of land use, that's Page 2~6 of the PUD, we see that the open space and recreation requires 700 -- close to 800 acres of already open space. As Mr. Fenton said to you, that this PUD reduced the open space requirements because by its own creation it already set aside the open space for recreation, it already set aside the open space for the environmental protection. It, in its own specific provisions, when it says that you may obtain a reduction in the minimum yardage does not require, in the definition or the procedure of clustered buildings, that there be a creation of any more open space than the open space that the PUD itself provided for when it was created and Page 364 March 9 & 1 O, 2004 approved by this very panel. That's why the open space question which has been raised is a red herring. 2.6.27 upon which the appellant relies was not in existence when this PUD was created. The concept of the clustered development, which Judge Hayes in his opinion also said is different from clustered buildings -- MR. PRITT: Object again. MR. CRITCHLOW: It's a legal opinion. And Pat, I'll go with you. If you say that's inappropriate, I'll back off. MR. WHITE: Well, I'm not -- MR. PRITT: Object again. We went through this. It was rejected and it's not relevant. MR. WHITE: I'm not sure whether he's bringing it in as a citation of authority as part of his legal argument or as part of the factual testimony, so ask Mr. -- COMMISSIONER HALAS' Can I ask a question at this point? MR. WHITE' Sure. COMMISSIONER HALAS: The PUD that this gentleman is referring to is all of Pelican Bay PUD. Is this particular item that we're discussing today, Waterpark, is that a separate PUD within the PUD of Pelican Bay? MR. WHITE: No, sir, it's all part of the same zoning district. And you may be thinking of the SDP, the site development plan for Waterpark. COMMISSIONER HALAS: Okay. All right. So when this individual, the landowner, bought this land, he was still buying within the PUD and was not creating another PUD within a PUD, that was just considered a site development plan? MR. WHITE: Correct. COMMISSIONER HALAS: Okay, thank you. MR. WHITE: That's my understanding. MR. WEIGEL: You're right. Page 365 March 9 & 10, 2004 MR. CRITCHLOW: Yes, Commissioner, he was buying within the Pelican Bay PUD, subject to the terms and provisions and guidance of that PUD, which included the provisions under 7.04.03(C). When the appellants tried to seek resort to the LDC, consistent with what the director has said, that is simply not applicable. Because specific procedures that exist within the PUD must control. The PUD was created with those special procedures, which included the determination by the director, administratively under 2.05, of what was a common architectural theme and was it clustered. It's the sole procedure provided. To say that any other procedure should be in existence in this case would say that the PUD has been modified, it has been altered, because that's not what the PUD said, that's not what was intended when it was approved, and that's not the process by which these provisions in the PUD have been administratively ruled upon. When I cite to Judge Hayes -- I don't cite to Judge Hayes because it's evidence. I cite to Judge Hayes because it's legal precedent. I cite to Judge Hayes because he and an arbitrator who was appointed in that case -- MR. PRITT: Object. MR. CRITCHLOW: If you don't want me to go there, I won't. MR. PRITT: Three times now. CHAIRMAN FIALA: Yes, please. MR. CRITCHLOW: All right. Accordingly, the common architectural theme issue, to the extent that it's relevant here -- and I don't believe it is because of the limited scope of the request for interpretation; I believe the limited scope of the request for interpretation, based on the way it was framed is, is the appropriate procedure for obtaining this result set forth in 7.04.03(C). The answer to that is unquestionably yes, because that's the only Page 366 March 9 & 1 O, 2004 procedure that would be applicable. Even if you go beyond it. As Ms. Murray said, there's substantial competent evidence by reason of what Mr. Mulhere did, and he's here today, in reviewing all of the submittals, including asking for outside architects to support what his opinion was, so that he had something else to support what he was doing. In addition to which, the issue of the clustered buildings, a clustered building was something that had been passed upon time and time again within Pelican Bay. It was a clustered concept project. It's no different than any other clustered determination -- clustered building determination that had been made since 1977. It was clustered. There was no need to go find additional open space, because the PUD said in its creation, you have to contribute it before we'll even consider this PUD being accepted. That's why open space is not relevant to that determination, nor should it be considered by this panel. The last issue which is raised in the letter of interpretation is should this have been subjected to an architectural review by the procedures of the LDC under Sections 2. -- under Section 2.8 of the LDC. Number one, the answer is clearly no, because a simple reading of 2.8 of the LDC says that it applies exclusively to commercial projects. That's exactly what the director said, that's exactly what the provision is. It could not be. And even if somebody were to stretch to say that commercial doesn't mean commercial, to apply it again would fly in the face of the specific provisions that are set forth in 7.04.03(C) that says it's an administrative determination, it is not to be guided by the procedures set forth in the LDC. The LDC didn't amend it. The LDC could not. You'd have to amend the PUD to accomplish that goal. Accordingly, there is substantial competent evidence throughout the records reviewed by the director, there's substantial competent Page 367 March 9 & 10, 2004 evidence at the arrival of the legal opinions which she provided to support her letter of interpretation. That is the sole issue before you, not whether somebody else will say I can determine that there wasn't a common architectural, I have different opinions, that's not the test. We have people who will come up and tell you what their opinions are, if you want to hear them. And there are opinions of consistency. The test is was there substantial competent evidence which she looked at in the record, and according to Hillsborough versus Longo, relying upon Mr. Mulhere and what he did in relying upon the filings of the architects was sufficient, was substantial competent evidence, which is all this panel is supposed to be listening to. We hope and we request that the letter of interpretation that has been provided to you by the director is affirmed without modification. It is the right decision, it's the only decision. Size, by the way, does not matter. Size, which is the -- size, which is the argument which has been made, is what controls in some significant regard. As a matter of legal precedent, not facts. That issue has been determined by this county in a circuit court proceeding. MR. PRITT: I'm sorry, I forgot to object for the fourth time. MR. WHITE: I'd ask if Mr. Pritt's going to comment, just so we get him on the microphone, that he approach the podium. CHAIRMAN FIALA: Right. And we've been asked by our court reporters to not interrupt anybody, but always get to a microphone, because they've been having trouble making a clear record, which is what everybody wants when they leave here is a clear record. So please, make sure you get up to a microphone and make sure you don't speak over one another. MR. PRITT: I apologize, I was trying not to pop up all the time. CHAIRMAN FIALA: Your name? MR. PRITT: Bob Pritt. And I would object for the fourth time Page 368 March 9 & 1 O, 2004 to the continuing attempt to get other collateral matters into the record. I'll stand closer to the podium. MR. CRITCHLOW: Mr. Pritt, I apologize. One other thing that I forgot to mention is that the process of this application was much broader-- CHAIRMAN FIALA: Not on. MR. CRITCHLOW: Now? CHAIRMAN FIALA: Yes, yes. MR. CRITCHLOW: -- was much broader, as the final SDP approval reflects. Not only were there submissions made, based upon the common architectural and cluster, as has been said, but also, it went to engineering, and the right-of-way -- CHAIRMAN FIALA: Speak into the microphone, sir. There you go. MR. CRITCHLOW: I'm not used to having a microphone like this in my hand. I apologize. MR. PRITT: While he's doing that, I'll object again. I don't think that's part of the record. MR. CRITCHLOW: It's been sitting up here all day. And it is part of the record. MR. PRITT: Well, sitting up there all day doesn't make it part of the record. I have a lot of things over here sitting here all day -- MR. CRITCHLOW: That's a good point. MR. PRITT: -- but that doesn't make it part of the record, and I think we'll be talking about that. MR. CRITCHLOW: You're absolutely correct. The final SDP approval-- COMMISSIONER HENNING: Mr. White? Mr. White? MR. WHITE: I -- if you need a legal opinion on it, I have -- COMMISSIONER HALAS: Yes. MR. WHITE: It wasn't included as part of the appellant record. Page 369 March 9 & 1 O, 2004 CHAIRMAN FIALA: Okay. Thank you. MR. CRITCHLOW: Again, we urge affirmance, we urge adoption. We urge that this appeal under 7(A) be rejected, and the interpretive letter be adopted as provided by Ms. Murray. Thank you all. Oh, we have some other witnesses to come up as either both experts and public witnesses. CHAIRMAN FIALA: Well, they can sign up to be speakers. MR. YOVANOVICH: I thought, Commissioner Fiala, that we would be afforded the same process that the appellant was, so we do have a couple of experts that we would like to speak. And they were provided-- each of their experts was provided 10 minutes and we would -- we would request that we be provided the same process that the appellants were provided. And we'll bring them up here, they'll speak quickly and we'll move on. CHAIRMAN FIALA: I guess what's fair is fair, right? MR. YOVANOVICH: That's all we're asking, is for the same process. COMMISSIONER HENNING: Madam Chair, it's the -- MR. PRITT: I'll object. They're not a party. CHAIRMAN FIALA: Look, we -- COMMISSIONER HENNING: They -- Mr. Pritt is appealing the process, so it's actually Mr. Pritt's meeting. But you're conducting the meeting again. If it's -- I would say if it's relevant to making a decision, we ought to hear it. There is some authority to that. MR. YOVANOVICH: And I disagree with Mr. Pritt. We are a party. We are the affected property owner. You're saying that if they can attack-- MR. WHITE: Mr. Yovanovich-- MR. YOVANOVICH: I'm sorry? MR. WHITE: -- do you yield? Page 370 March 9 & 1 O, 2004 MR. YOVANOVICH: I will if-- I thought it was my mm. MR. WHITE: Following up on Commissioner Henning's point, Madam Chair, the resolution we mentioned in our memorandum 98-167 does afford the Board the opportunity to modify the procedures here in 167 -- 98-167 to effectuate the effective presentation, it says, of evidence. Now, I read that to mean that if there's a circumstance where the direct rules may need to be varied, that there is some authority to do so, so long as that evidence is otherwise permissible. And so I'm going to caution Mr. Yovanovich the same way we cautioned and made mention to you earlier, that if there is going to be testimony brought forward, expert of otherwise, that is essentially new evidence, that that is something we don't believe is appropriate for the record. You may hear it and there may be other objections and concerns about the relevance of that testimony, and we'll have to unfortunately wait till we hear it before we'll ~cnow whether it was relevant or not. But I just wanted to remind the Board of those points and point out the additional authority that's given by the resolution to slightly modify the procedure. CHAIRMAN FIALA: And Commissioner Henning is right, this is Mr. Pritt's meeting and we're hearing it, but-- COMMISSIONER COYLE: No, it's not. CHAIRMAN FIALA: No? COMMISSIONER COYLE: It's our meeting. COMMISSIONER HENNING: It's the Commissioner meeting. CHAIRMAN FIALA: Okay. Then let's move forward. I'd like to be fair with both sides. MR. YOVANOVICH: Okay, thank you. Do you have the list of names? MS. FILSON: Okay-- CHAIRMAN FIALA: We don't have -- we don't have five or Page 3 71 March 9 & 1 O, 2004 six, right? MR. YOVANOVICH: Four. MS. FILSON: I have five. MR. YOVANOVICH: Five, sorry. It will be quick, we don't take the full time. CHAIRMAN FIALA: Okay. MS. FILSON: All five of these get 10 minutes? CHAIRMAN FIALA: Yes, but he said they'd be quicker. MS. FILSON: The first one is Wayne Arnold. He will be followed by Larry Cohan. MR. WHITE: The traditional procedure, Madam Chair, is that experts would get 10. So I don't know whether these witnesses are going to -- MR. PRITT: Yes, could we have a standing objection to the witnesses on the basis that this is not in the record? That way that will save me from having to jump back up on these issues. I may jump back up -- CHAIRMAN FIALA: And your name, sir? Your name? MR. PRITT: Robert Pritt. P-R-I-T-T. CHAIRMAN FIALA: Thank you. Yes, you sure may. Okay. MR. WHITE: And I just want to complete my thought, ifI may, Madam Chair, that as to the time period that these individuals are going to be given, if they're going to be testifying as experts and are qualified, then I assume that under practice before, they'll get the 10 minutes; otherwise, it will be five minutes. CHAIRMAN FIALA: Are these all expert witnesses? MR. WHITE: We might just take them one at a time. MR. YOVANOVICH: Yeah, I think you're all familiar with Mr. Arnold's credentials and Mr. Mulhere's credentials. We did not go through the process of forcing them to qualify their witnesses as Page 3 72 March 9 & 1 O, 2004 experts. We -- I would request that -- if you want us to, we'll go ahead and have them tell you their complete pedigree, or you can just allow us to have the amount of time that their witnesses had. We'll go either way you want to go. COMMISSIONER HENNING: Your name for the record, sir? MR. YOVANOVICH: I'm sorry. My name, for the record, is Rich Yovanovich. MR. PRITT: Madam Chair, I'm Bob Pritt. We would not object to Mr. Arnold's credentials, as long as he's talking about planning. MR. WHITE: I think that seals it. CHAIRMAN FIALA: Very good. Thank you. MR. ARNOLD: Good evening, I'm Wayne Arnold. I'm Director of Planning with the firm Q Grady Minor and Associates. And I'm a professional certified planner. I've been certified as a planner since, I believe, 1990. I have a master's degree in city planning, I have a bachelor's degree in urban planning. MR. PRITT: No, when we agreed to that, we -- that means you don't have to testify to that. MR. ARNOLD: Okay. As background, I was formerly your Planning Services Director from 1993 to 1998, and I'm very familiar with both the Pelican Bay PUD, your LDC provisions and procedures for interpretation. I've been through a few of those myself in my day. One of the roles that I played in this particular project of Cap d'Antibes was to help with the SDP amendment process for our firm, and that was simply one of, in many respects, the site development plan as a function of engineering. But in this particular case, because of the Pelican Bay PUD and its specific requirements for architectural theme and reduced setbacks, I helped this -- I helped our firm prepare the analysis for reduction of setbacks that have occurred in other locations within Pelican Bay and we helped establish the process, with Page 373 March 9 & 10, 2004 Mr. Mulhere's input at the time as the Planning Director, to help with documenting how we met the theme requirements. And that went to the extraordinary, I guess, effort of obtaining opinions from other architects to demonstrate that we were in fact an architecturally themed project, which was part of an enclave known as Waterpark Place in Pelican Bay, which was a clustered grouping of buildings owned and developed by one developer with commonality that we've all heard about, signage, gated entries, landscape features and so on, which qualified us then to seek the reductions in setbacks and building separations, which we eventually did receive through that process. Today you've heard a lot about clustering, and we've talked a lot about open space, but the provisions that are in the Pelican Bay PUD that you've heard about do not take you back to the Land Development Code provisions for clustered buildings, which require additional open space, et cetera. Those provisions that are -- that are in the Pelican Bay PUD are very specific to the Pelican Bay PUD. And if the Pelican Bay PUD were silent to clustering buildings and how you deal with that situation, then the appellant would be right, you go back to the LDC for that specific guidance of how you do that. But in this particular case you didn't. You have those procedures in place in the Pelican Bay PUD. We followed those and qualified for those under the architectural theme process. Part of the other component of this that you've heard about was that clustering should only be used and we should gain additional open space. Well, as you already heard from testimony, the entire Pelican Bay PUD in essence is a clustered project. You have huge and vast amounts of common open space that aren't found in many other communities, especially coastal communities in Collier County. But in addition to that entire process of the PUD, which had these very Page 374 March 9 & 10, 2004 specific standards that were applicable to it, we could then go back and modify those standards. Because the whole PUD process was supposed to be flexible. And this process was meant to implement that flexibility. That's what a PUD was supposed to have been. And again, you heard that these procedures for the clustering that the appellant would have us believe that we should have used, they didn't come into effect until nearly 15 years after the adoption of the Pelican Bay PUD. So the clustering that was contemplated was exactly what we were doing. We were grouping buildings on a unified site under common ownership at the time by the same developer, which resulted in a grouping of buildings that could be reduced for setbacks because of their unique character and theming that was taking effect in this particular piece of the project that had like signage, like entry features, landscape treatments, et cetera. In addition to the fact that we went above and beyond demonstrating that while the buildings may not look identical, there are certain theme components of this project that warrant the reductions. One of the other things that I just wanted to touch on was really why we have the PUD process that we have for Pelican Bay, because it was a very unique process for its time, 1977. And in many ways, it was ahead of its time. And what we had were administrative procedures in place that were not in place currently in the Land Development Code or zoning code at that point in time. Much of what we have in Pelican Bay was in fact many years before its time in how we treat it as a master planned community. And in my opinion, it's one of the best examples of a master planned community that we have. We've blended a mixture of land uses that all seem to work. And I understand that we have many residents who don't like this building because of its bulk and massing, but that's not the subject of the interpretation and that's not something that you can go to under the architectural theming and then attack. Page 375 March 9 & 10, 2004 So the procedures that were followed to meet the architectural theme to get the building separation and setback reductions was appropriate. Your staff did the right thing. And I think Ms. Murray, having not been involved in that immediate process, looked at that process and said, my staff did the right thing, three years, four years ago, whatever the case may be. That's really all I had for the record. And if-- I guess I would close with that and yield the four and a half minutes. Thank you. MS. FILSON: Next speaker is Larry Cohan. MR. WHITE: If there's no cross-examination, then I just want to remind you Commissioners that, consistent With Mr. Pritt's objection, much of what Mr. Arnold testified to were matters pertaining to the actual SDP review process and are not in fact part of the record pertaining to this appeal of the official interpretation. I know there's a fine line between the two, but we've been trying to draw it all day, and I want to continue to do so. MR. COHAN: Good evening. My name is Larry Cohan. I'm a principal with Brito, Cohan and Associates. We're the architects for Cap d'Antibes. I've been a practicing architect since 1981. Our architectural firm was formed in 1991. We predominantly design high-rise and mid-rise condominiums. We have projects up in Palm Coast, which is just north of Daytona, in Lee County and Collier County, Coral Gables, Florida, Miami, Miami Beach, Boca Raton, West Palm Beach. We're not new to the design of condominium projects. In fact, we're also the architect for Cap Ferratt, which is in Crown Colony. So we're not even new to architectural theme. And that's what I'd like to talk to you about tonight is, we were not new to common architectural theme. We had experience with it and we had your documents and we relied on them in the design of this project. So the first thing we did is we went out and looked at St. Pierre Page 376 March 9 & 1 O, 2004 and we looked at St. Laurent and we found common elements between the two buildings. The St. Pierre has ribbon windows and it's more of a deco modem look. It's reminiscent of the Fountainbleau Hotel, in Miami Beach. And from that we looked over at St. Laurent. Well, I did study architecture and I am testifying to this. I then looked at St. Laurent and found that it was deco, but deco in what was more of the skyscraper era, the Rockefeller Center type buildings, the buildings that are more with punched windows. And then we looked at the roofs of both of these buildings and noticed that the roofs of both of these buildings are parapet buildings. They are flat roofs with a parapet, unlike the Mediterranean style where there are hip roofs with barrel tile. And so we designed Cap d'Antibes to extract elements from both of these. The idea was to actually make the buildings in harmony, to make them more uniform. And I think we've done that. I think they are very similar, which is the term that we used in these books -- in the design of these buildings. I think the designs are proper, because we're talking about a zoning that is flexible, not rigid. When we design in a community that has a zoning code that tells us we have to have a pedestal of six stories and that there is a maximum amount of window and defining shapes, that is a rigid zoning. This was not. This was meant to be just what it is, to let expression be there. And I think, again, these are fine buildings, they are a complement to the community. And I hope that you do in fact let us construct these buildings. MR. WHITE: I would simply note again for the record that much of the testimony pertained to the SDP review process, and I think you've heard these comments before. CHAIRMAN FIALA: Thank you. Mr. Yovanovich, can you -- can you have anybody that -- any of your expert witnesses actually address the subject? That would be great. I mean, because you're Page 377 March 9 & 1 O, 2004 wasting your time and it's very valuable. I'd prefer to see somebody just address the subject. MR. YOVANOVICH: If I can, these are the architects that actually wrote the letters. They're explaining the letters that they wrote to Bob -- actually to the county, on which Bob Mulhere relied in issuing his opinion. But these are architects that I -- MR. PRITT: I'll object to that. They didn't say that. He didn't say that. CHAIRMAN FIALA: And your name, sir? MR. PRITT: Bob Pritt. MR. YOVANOVICH: Bob, would you -- when the next person comes up, if you would like me to have him show you the letter he wrote, I'll be happy to do that, but he did in fact write the letter. COMMISSIONER HENNING: And it's a part of our record? MR. YOVANOVICH: Yes, it is part of your record. MR. PRITT: And I continue to object on the basis of relevance. MS. FILSON: Joseph Barany. MR. BARANY: It's Barany. Madam Chairman, members of the Board, for the record, my name is Joe Barany. I'm retired from active practice. However, I practiced architecture for 29 years, 21 here in Southwest Florida. A large portion of that as president and founding partner for Barany, Schmitt, Summers, Weaver Architects. We were the architects and I was the architect of record for St. Pierre, which is the initial building in Waterpark Place that ostensibly established the character that we're going to -- has been discussed today that, you know, is carried throughout the process. In November of 1999, I issued a professional opinion, and that opinion was provided in the form of a letter, which is a part of the public records under discussion. In that letter, based on materials that were provided to me, I opined the following: The architectural style Page 378 March 9 & 1 O, 2004 of the proposed building is similar in design in the use of materials and color. Waterpark Place does have a signature entryway -- we were responsible for designing that initial signature entryway -- which serves to identify the development as having a common architectural theme, landscaping, paving surfaces and common wall along Pelican Bay Boulevard, which is common to the entire Waterpark Place development. And then I was advised, and I so state in my letter, that the streets -- the street materials, signage and lighting, which was going to be provided, but which I had no specific information on, was going to be similar in design to everything else that we had done throughout the project. That was in November of 1999 when I issued that professional opinion. I -- I'm here today to stand behind that opinion and to elaborate on how I can say that if in fact that's open for discussion. How I arrived at my opinion. It's up to you. If you would like to hear how I approached the professional opinion that led to the creation of this letter, I would be happy to review that with you. CHAIRMAN FIALA: Do you have any problem with that, Mr. Pritt? MR. PRITT: Yes, we do. Bob Pritt, for the record. We object to the testimony. It's not relevant. Furthermore, the letter was -- is not competent substantial evidence, as we have said all day long. Thank you. CHAIRMAN FIALA: Do you want to move on to another subject? MR. BARANY: The -- I -- let's just say that I stand behind my opinion. There was testimony that was offered earlier today by both Ms. Tate and Mr. Fenton with respect to architectural criteria as they would apply it to reach their own conclusions. I would respectfully Page 379 March 9 & 10, 2004 request an opportunity to address a couple of the points that they made in their testimony, which at this point I assume is up for grabs. Their criteria and their critique, really, as eloquent as it was, was based on generalizations. And I'm not faulting them for that, but when I rendered my opinion, I felt I needed to be much more objective than that. And any time you're discussing issues of subjectivity with respect to style and taste, it's a very slippery slope. What I did was to look at what our original design intent was with Pierre and that was an art deco, modem feel to it. Now, art deco modem is only one flavor or one style of art deco. And the second building that was designed, which was not our project-- MR. PRITT: Excuse me, Bob Pritt, once again. He's doing just exactly what I objected to a moment ago. MR. BARANY: At this point, I'm -- with all due respect, I was responding just to testimony that was given earlier as opposed to how I arrived at my opinion. MR. WHITE: Madam Chair, I'm not trying to make this any more difficult than it is, but we did hear fully, essentially all of the testimony of the experts of the appellants. I'm simply going to, at the end of each of these presentations, remind you that largely what we're hearing, again, are matters of fact pertaining to the SDP review process, and it may be in response to other comments heard earlier, but essentially it's still fundamentally a problem in terms of it's not being part of the appellate record and further concerned that it's not related to the actual official interpretation process. But be that as it may, it's his 10 minutes. MR. BARANY: Madam Chairman, I defer to you. If you do not want to hear this, please say so and I -- I'll will sit down. CHAIRMAN FIALA: If you want to continue, but if it doesn't pertain to what we're discussing, I would think that -- MR. BARANY: Yeah, I would rather not, not waste the Board's Page 380 March 9 & 1 O, 2004 time. Thank you. CHAIRMAN FIALA: Thank you, sir. MS. FILSON: Robert Mulhere? MR. MULHERE: Good evening. I -- at the outset, I guess I'd like to state I wish I was not part of the record. But I think I am. MR. PRITT: We agree with that, and we'll object to your testimony. Bob Pritt once again. MR. MULHERE: And now, I'm not sure if I have to be qualified. I guess it depends on whether Mr. Pritt will waive my quali -- will accept my qualifications as an expert. MR. WEIGEL: Who are you? MR. MULHERE: My name is Bob Mulhere, and I was the Planning Director at the time that this was approved. CHAIRMAN FIALA: Were you the guy that approved it? MR. MULHERE: Well, I'm going to get to that. CHAIRMAN FIALA: Oh. MR. WHITE: I don't know that there's been an answer from Mr. Pritt. I assume by his silence that he does not accept -- CHAIRMAN FIALA: Yes, I'm looking to you, Mr. Pritt. MR. PRITT: Again, I object to any of the testimony, so -- MR. MULHERE: Well, you have discussion -- CHAIRMAN FIALA: Do you expect him -- accep -- I'm sorry, accept him as an expert witness? MR. PRITT: Yeah, I'll accept him as an expert. CHAIRMAN FIALA: Thank you. MR. MULHERE: Again, for the record, Bob Mulhere, currently with RWA, Incorporated, and formerly with Collier County. And I was the planning director at the time. Actually, I was not the planning director at the time that the final SDP was approved, but I was the planning director who issued the letter approving the application of Page 381 March 9 & 1 O, 2004 common architectural theme. And let me just say at the outset that I think there's been a lot of comments about the approval, it being made in a vacuum or being made by one individual. Nothing could be further from the truth. First of all, no SDP in Collier County is approved by one individual. There is a very substantial review that occurs. And there was a very substantial review that occurred in this case as well. And as was already put on the record, that process started largely in 1999 and continued through 2001, after which time I left the county in April, and then further review occurred after I left. Couple of comments. You know, I believe that the -- that we did follow the appropriate process in approving the Cap d'Antibes SDP, including the reduced development standards permitted through the common architectural theme provisions of the PUD. I did not do so -- I did not review the request lightly and I did not approve it lightly. I reviewed the plan against the provisions, the applicable provisions of the PUD. And in fact, there were a number-- as has previously been stated, there were a number of SDPs approved under these very same provisions. In fact, I believe there are other PUDs in Collier County -- MR. PRITT: Okay. I'm going to object again. I think it's five times now, maybe six. We're talking about other PUDs and what we used to do. That's our entire point, Board, members of the Board. Our entire point is the way they may have done it and the way they did it in this case is incorrect, and we would like that not to be part of his record, because it isn't. MR. MULHERE: Well, actually-- CHAIRMAN FIALA: And your name, sir? MR. PRITT: Robert Pritt. MR. MULHERE: Actually, that's not my point. My point is that we actually did it differently this time than the way that it was done previously. Page 382 March 9 & 1 O, 2004 In fact, we did it differently because we took the time to fully review the application. In fact, we asked for and received opinions. Because I am not an architect, although I did visit the site, although I did review renderings, although I have several meetings with my senior level staff, one of whom had 30 years professional planning experience and a great deal of experience in reviewing Pelican Bay applications. Having done all of that, I still felt, you know, I think we need to get some additional opinions relative to the common architectural theme provisions. MR. WEIGEL: Madam Chairman, and Bob, if you'd wait a minute. Thank you. Bob has come ostensibly to testify as an expert in relation to -- either in support of or some other comment of the zoning director, Susan Murray's interpretation. I do not believe he has come before the Board, at least at the outset, to testify in some other capacity such as former employee, former person in the process. Mr. Pritt has also raised concern along that line. But the fact is, is the SDP approval is not before you today. And so if Bob wishes to testify as an expert, being acknowledged as such by Mr. Pritt, in relation to the interpretation written by Susan Murray, I think that that can be done probably rather succinctly and then we're done. MR. MULHERE: Understood and accepted. Let me just say this then very succinctly and summarily: The fact that during my tenure with the county as the planning director I signed the letter that approved the provisions of the planning common architectural theme in this -- in this instance. And that I stand by that approval I think is further supported by the independent and subsequent review of the professional staff that is currently in place who were not involved in that process, I think as Commissioner Coyle aptly raised that issue Page 383 March 9 & 1 O, 2004 earlier. The fact that Susan Murray, as well as the legal s.taff, have reviewed the request, the appeal and have reviewed the interpretation as it was rendered and have determined that the interpretation was properly rendered I think further supports that the appropriate action was taken during that period of time. And I'm happy to answer any questions that you have. Thank you. MS. FILSON: Final speaker is Grady Minor. MR. YOVANOVICH: We're not going to -- MR. CRITCHLOW: The only other witness that we had was Grady Minor, limitation on what he would say, and I would proffer to, and you can tell us whether you want it or not, is that the SDP development has been completed. And I don't know whether you want to hear that or not. CHAIRMAN FIALA: No, sir. MR. CRITCHLOW: Then there's no need to call Mr. Minor. CHAIRMAN FIALA: Very good. Thank you. Thank you. Now, I'd like to hear from our speakers. MS. FILSON: Okay. MR. RAIA: We had an agreement. I would like to have -- how many speakers would like me to represent them and not speak? Are you all registered speakers? Who's a registered speaker? CHAIRMAN FIALA: But you said you only wanted five minutes, Mr. Raia, right? MR. RAIA: Well, then they will come up and finish reading what I'm going to read, but, you know, we've given -- CHAIRMAN FIALA: Well, you told me five minutes before. MR. RAIA: Madam, I am also a property owner-- CHAIRMAN FIALA: I know, but -- MR. RAIA: -- significantly affected. CHAIRMAN FIALA: -- we have given you 25 minutes before -- Page 384 March 9 & 10, 2004 MR. RAIA: okay? else. I'm hoping that I would be finished in five minutes, CHAIRMAN FIALA: Sir, five minutes. MR. RAIA: I'm hoping. CHAIRMAN FIALA: No, no, no. You have five minutes. MR. RAIA: Then I will surrender some of the time to someone CHAIRMAN FIALA: And everybody else -- MR. RAIA: And everybody-- CHAIRMAN FIALA: Just a minute, Mr. Raia. How many -- how many other speakers do we have? MS. FILSON: I believe 16. We've only just called -- CHAIRMAN FIALA: Sixteen. We have three minutes each. That's it. MS. FILSON: Including Dr. -- MR. RAIA: Okay. Thank you. I just want to -- it was -- CHAIRMAN FIALA: No, I've given him five because he told me five. I'm sorry I was misled. MR. RAIA: I'm sorry. I will not go over cluster again. I think I've demonstrated with graphics what the staff says, by right, developers can do, no limit to the size of the building. And I will not go over common architectural theme. I showed you actual pictures of what the buildings look like. I will address, though, a reference was made that the cluster provision is in Section 4, Section 5, Section 6, Section 7. I want to call to your attention that in all those sections, single-family units are permitted uses, and again, that's why the cluster provision is there. The cluster provision, as in the Pelican Bay PUD issued in 1977, I was on a planning board in 1972, cluster provision was available and out there in the public, it had a definite meaning then, it has a meaning now. There is a relationship between the PUD and the LDC. There's a Page 385 March 9 & 1 O, 2004 statement of compliance, which one of the attorneys already read. And again, I want to call to your attention that the definition section, 2.15, again refers you to the Land Development Code for the definition, so there definitely a selection -- a connection there. I want to get to finish my statement that I started. Okay. Sorry. Why and how did we get here? If you have a 2,000-foot parcel that requires 200-foot setback between each of your 200-foot buildings, you can only build five buildings. Depending on how much you can reduce the setback distances will determine how many more square feet of building can be added. At some time in the past there was a site development plan submitted for clustered high-rise buildings within Group 4. Now, I want to call your attention, it did not start out that way. If you look south of Gulf Park Drive, all those buildings are at least 200 feet apart. Some time after that, I would say in the late Eighties, early Nineties, something happened. The planning manager at that time, by intent or error, but not by right, determined the clustering provisions of Section 7.04.03(C) of Pelican PUD -- Pelican Bay PUD applied to high-rise buildings. Now the staff claims that since that first approval many of the projects in Group 4 have been also deemed cluster projects and have been approved. As demonstrated above, the staff erred in their interpretation then and continue to do so now. The planning staff has had ample time and opportunity to include clustering of high-rise buildings language into the Land Development Code. There have been a multitude of amendment cycles, but the proposal for change remains conspicuously absent. If developers wanted to reduce setbacks between high-rise buildings, all they had to do was open a PUD at a public hearing. However, it was easier, faster and safer to have the staff claim that setbacks were not required. I did not write Paragraph A of 7.04.03 and Paragraph B saying Page 386 March 9 & 1 O, 2004 that the setbacks had to be 200 feet between buildings. The people who had the unified control that signed the agreement with the County Commissioners, they wrote that. They made the rules. And they can change it anytime they want. They can reduce it to one-fourth height or one-tenth height. They were the ones who had an opportunity to do it. The staff maintains that since similar approvals were granted in the past, the developer is entitled to the approval now. There is a reason why setback distances were reduced in the past with no public attention. The developer owned both sides of the property line. The case -- this case is not similar. This is the first time that a reduction in sideline setback has been attempted where the developer did not own both sides of the property line. We are here to protect our rights, and that is what the staff should have done the first time this was attempted. Now, that schematic plan that I showed you, they really presented this to try to argue that setbacks had been reduced in the past. But I can show you, wherever setbacks were reduced between buildings in the past, it was only when the developer owned both sides of the property line. Property line setbacks are for the benefit and protection of the adjacent property owner. When a developer reduced a sideline setback from his own property, who was to complain if the staff did not enforce the code? Certainly not the developer who benefited from the reduction. Pelican Bay was planned to have high-rise buildings 200 feet in height with at least 200 feet between them. This gave all 14,000 residents of Pelican Bay the benefits of living close to the Gulf, namely the Gulf breeze, sunsets and open sky. Although there was no limitation on the width of buildings, only the last four buildings, the Montenero, the Cap Ferratt, and the St. Raphael and-- CHAIRMAN FIALA: Thank you, Mr. Raia. I have to stop you. Page 387 March 9 & 1 O, 2004 MR. RAIA: -- now they want to double it. Thank you. CHAIRMAN FIALA: Thank you. Now, the rest of our speakers will all have three minutes. We're going to break at 6:30. MS. FILSON: Jim Hobin? He will be followed by Jacqueline Mendelsohn. What did she say? COMMISSIONER HENNING: She said she'd waive. MS. FILSON: Okay, then Baron Herman. MR. HOBIN: My name is Jim Hobin. I'm vice president of the Pelican Bay Property Owners Association and a homeowner in Pelican Bay. I'm not an architect, I'm not an expert on common architectural theme, but I do want to say a few words on common architectural theme. Pelican Bay is a community of many neighborhoods. Each neighborhood has its own unique character. While there are many facets that contribute to this character, none is more important than the existence of a common thread or a common architectural theme. This theme acts as a linchpin to give a particular neighborhood its identity. In addition to style, size and dimension of a building to me would appear to have to be in proportion to the neighborhood that it's in. If we don't have some degree of controls, what becomes of our neighborhoods? What becomes of their identity? Whether it's in Pelican Bay or elsewhere, that to me is a primary question. I close by saying that one can reasonably ask, if a building is disproportionately larger than the neighboring buildings, does this negate common architectural theme? I'm not an architect, but I think as a halfway intelligent person, it certainly would, in my estimation. If common architectural theme is absent, does this in fact impact the neighborhood? If it does, what are the results of that impact; positive or negative? You be the judge of that. I thank you for your time and your consideration. Page 388 March 9 & 1 O, 2004 MS. FILSON: Baron Herman? MR. WHITE: Madam Chair, consistent with our comments, I note that much of the testimony was facts specific and not part of the appellate record. MS. FILSON: Merlin. Merlin Lickhalter. CHAIRMAN FIALA: I'm sorry, I couldn't -- I couldn't understand you. Would you say that again, please? MR. WHITE: Essentially making the same comment with respect what you're been asking us to do, that largely his testimony was fact specific and not part of the appellate record, and in that regard, you should give it, I believe, lesser weight. CHAIRMAN FIALA: Sir. MR. LICKHALTER: My name is Merlin Lickhalter. I live in Waterpark Place. My wife and I are among the almost 2,000 people who signed the petition. I am a licensed architect in Florida, California and other states, with more than 30 years of experience. I'm also a Fellow in the American Institute of Architects. I was going to talk about clustered buildings and harmony and architectural themes, but I think others before me have done that quite adequately. I just have to say, in response to the comments that I heard from the property owners' independent architects and planners, that architecture is more than the stylistic archibabble (sic) that I heard this afternoon. It's more than cotton candy, it's more than entrances and fountains. Professor Tate is an expert and she defined it for you and you should listen carefully to what she said. There's been a lot of emphasis on process here today. An awful lot of the emphasis has been on the process of doing things, but there's very little discussion about the results. And I think the residents and the owner of Pelican Bay are interested in the results. The issue of competent evidence is beyond my competence. Page 389 March 9 & 1 O, 2004 That's a legal issue. But I can tell you that the end result isn't very good. I don't think it's consistent with the Commissioners' vision of serving the public interest with good planning and design practices. There's no doubt in my mind that if this project is approved you, and you're our representatives, and allowed to be built as it's presently designed, the result will destroy the character of Waterpark Place where I live, and perhaps even a broader swath of Pelican Bay, due to its vastly different appearance. And appearance is very important. I urge you to reject this opinion as you've gotten from your staff, and remm the project to your new staff for rigorous review. In that context, earlier one of the Commissioners said that none of the people on duty now had responsibility for this. And I as a resident accept that. But I think you're accountable. I think you're accountable to the owners and to the residents, and I would urge that instead of focusing on doing things right, you focus on doing the right thing. MS. FILSON: Merlin Lickhalter? MR. LICKHALTER: That was me. MS. FILSON: Oh, okay. Dorsey Baldwin. CHAIRMAN FIALA: Sue, after this then we'll take a break. MS. FILSON: Dorsey Baldwin? Ross Obiey? COMMISSIONER HALAS: He spoke before. MS. FILSON: I know, but she told me to call him. CHAIRMAN FIALA: Yes, I did. MS. FILSON: Mr. Obley? CHAIRMAN FIALA: He's not here any longer. MS. FILSON: David Bramson? Richard McGahren? Libbie Bramson? David Bramson? CHAIRMAN FIALA: Looks like -- here -- this is David Bramson. Page 390 March 9 & 1 O, 2004 MS. FILSON: Okay. MR. BRAMSON: I was going to say good afternoon, but it's good evening. My name is David Bramson, I am a registered voter in Collier County and a resident of Pelican Bay. It's my hope that you find that Cap d'Antibes is a project contrary to anything that we all stand for. It's either the result of gross ignorance or incompetence, whatever, but it was -- it's gross. And you cannot let a gross error stand that benefits only one developer to the disadvantage and harm to so many in Pelican Bay and the entire county. I plead with you, as our representatives, to not let this thing happen. MS. FILSON: Henry Price? CHAIRMAN FIALA: Sue, we're going to -- MS. FILSON: Oh, I'm sorry. CHAIRMAN FIALA: That's all right. We're going to need to take just a 1 O-minute break for our court reporters to rest their fingers. I just wanted to mention something that -- a couple of things that --just so it's on the record. Although I have no education in anything, so I'm reduced to common sense and logic. But I have a problem with wondering how cluster involves just one building. If you had zoning for a number of houses and then you clustered them all together to make one building, maybe that's what it is. But one building to me just doesn't seem like it's clustered, it's a building. And there's my first problem. The second thing is, we're talking about architectural theme, and we're talking about all of the buildings in Pelican Bay being the same, 20-foot high and so many stories and so forth, and the width, and this seems to not fall into that same category, so I'm having problems getting my arms around architectural theme. Page 391 March 9 & 1 O, 2004 And with that, we'll break for 10 minutes. Thank you. I just thought I'd better say something. MR. VOLPE: You won't be returning and voting on the -- CHAIRMAN FIALA: No, unless you're still meeting for a couple hours. MR. WHITE: Madam Chair, I'm taking us off the record. (A recess was taken.) MR. MUDD: Mr. Chairman, you have a hot mic. Ladies and gentlemen, will you please take your seats. COMMISSIONER COYLE: Ms. Filson, who is the next speaker? MS. FILSON: Henry Price. COMMISSIONER COYLE: Mr. Price? MS. FILSON: He will be followed by -- COMMISSIONER COYLE: Mr. Price waives. Who's the next speaker? MS. FILSON: Baron Herman. COMMISSIONER COYLE: Mr. Herman. MS. FILSON: And he will be followed by Aldo Magistrelli. Did he waive? COMMISSIONER COYLE: He already spoke. Okay, he wants to speak again. MR. HERMAN: Honorable Commissioners -- are we awaiting for the Commission lady, Chairman? COMMISSIONER COYLE: No, we're ready to go. Go ahead. MR. HERMAN: Okay. Thank you very much. My name is Baron Herman. I live in Pelican Bay. I've been a real estate developer all my life, from Dade County to Lee County and in the last 16 years in Atlanta. I've developed over 20 subdivisions. And moving here, I'm seeing something that is radically disgusting happening in Pelican Bay with Cap d'Antibes. Something that I didn't know when I moved Page 392 March 9 & 1 O, 2004 in here, and I think is pretty pathetic and I think is sad. And I know all the Commissioners here, nobody was involved in this program when it started. But to see Cap d'Antibes -- and I know this is a little bit repetition, but I really need to say this -- as having cluster approval when there was one building involved that was really considered for cluster, I think is a total mockery of fairness and justice. And I think it's a total error on the executive staff. I think they absolutely violently erred, and I see that all the time in developing. In -- wherever I've been, people make mistakes, and that's the way it is. They make mistakes as a human being, or they get -- they think they're doing right or whatever have you. I think they make mistakes all the time. But now we have a big mistake, and I think everybody here can help right that wrong. I think if you can wear our shoes, as somebody else said that, you could feel the same way. As far as having commonality, well, commonality, you can say that a mouse and an elephant have commonality, too. I'll prove that, just like the architect I heard say that there was commonality just about 10 minutes ago. Well, an elephant has two eyes, two ears, and a tail, and so does a mouse. And that's how much commonality I think Cap d'Antibes has with the original two sites, that kind of commonality. To say that paint, paint colors defines a common architectural theme I think is ridiculous. I think -- I think you people here are in a wonderful position to right a wrong, and I'm hoping you do. I think you're all intelligent. You are not the executive staff, you are the Commissioners. I hope you do the right thing, I really do. And I thank you very much. COMMISSIONER COYLE: Mr. Magistroni (sic), are you the next speaker? Mr. Magistroni? If we could get the second speaker lined up here so we won't have to wait for people to walk back and forth, we might move along a little faster. Who's the -- Page 393 March 9 & 10, 2004 MS. FILSON: He will be followed by Frank Partee. COMMISSIONER COYLE: Is Frank Partee here? MR. MAGISTRELLI: I just want to say, what this gentleman just said is totally correct, that you gentlemen are very intelligent and I'm sure that you can right this wrong. None of you were here when this happened. Understand this: I'm 71 years old. I've been -- I own a lot of commercial property, big property, millions of dollars worth, and I came down here to sort of semi-retire. I go into a building called the St. Raphael, and there's 173 units available in that building, and we are told when we buy and everybody buys, look at the beautiful panoramic view you have of the Gulf. That's what we were told. So we bought. And we all bought and we were told -- we saw this empty lot next door and we asked what is that lot, what's going in that lot? Well, there's going to be a building right next to yours, back, just like yours is in line with everything else. There was a sign posted at the end of the tram ride that -- showing where the building was, and there was a sign out in front right on Pelican Bay Boulevard there, showing what was going next door. And all of a sudden, after we bought, and after these people that want to slow down -- most of them are retirees, want to enjoy the Gulf there in front of them, we find out that there's a building coming up. When we find out the building's coming up, not only is it coming up, it blocks 40 percent of the view of the people in the 0 l's, and gradually 50 percent of our building is losing as much as from zero to 35, 40 percent of their view. Okay? Besides that, when the sun -- at certain times of the year where that building's going to be situated, we're not going to have any sun in our pool. Now, like I said, I've been in the building business for 50 years, and I've been in -- owning commercial properties for 35. And what I was always told was you can't hurt your neighbor. You can't do that. Page 394 March 9 & 10, 2004 Now, what are we supposed to do when the sun's behind the building and there's no sun in the pool and all the grandchildren are down and want to go in the water? All we're asking you for here today is fair. We believe you're honest, we know you have a tough job, we know you're intelligent or you wouldn't be in those chairs. Please come down with the right thing, because this is not going to go away. I'll tell you, it is not going to go away. If it doesn't end here, it will go on. As far as I'm concerned, I'd go -- I've been to federal court. I would go wherever it took to get this thing rectified. Thank you. MS. FILSON: Frank Partee. He will be followed by Richard Laughlin. COMMISSIONER COYLE: Would you say that name again, who was it, Potee? MS. FILSON: Frank Partee. COMMISSIONER COYLE: Frank Partee. Is Frank Partee here? MS. FILSON: I think that's this gentleman. He will be followed by Richard Laughlin. Does he want to speak again? James Weaver. MR. PARTEE: Good evening. My name is Frank Partee, and my wife and I reside at 6040 Pelican Bay Boulevard. We canvassed the City of Naples for three years looking for a retirement haven, and we finally selected Pelican Bay because of its unique combination of beach, greenbelts and the understated elegance of the surrounding environment. I hope your action here tonight doesn't prove that decision wrong. I would have waived my right to speak. We were admonished before coming here today to act with restraint and not show emotion. And I really have to compliment the residents of Pelican Bay for doing that. Page 395 March 9 & 1 O, 2004 But right now, I am angry. I find it absolutely outrageous that the Chairman of this Commission would leave this meeting to speak to a power squadron group instead of putting her vote on the public record that's going to affect 14,000 residents of this community. I'm outraged with the mind-numbing quagmire of procedural and technicality objections that have been thrown at us all day long, and what appears to me to be an obvious deference of your legal staff to the developer. I'm angry about the audacity of this developer who thinks they can come in here and run roughshod over our community. Now, I've sat here for eight-and-a-half hours, this is what I've gotten out of it. The developer applied and got approval of an SDP for four buildings that any commonsense person could understand comported with the existing and anticipated Pelican Bay development. Subsequently, the developer applied for an amendment to the approved SDP that proposed a monstrous building that any commonsense person could understand was a gross departure from that original plan. The county staff then proceeded to approve that amendment, without public notice and by making interpretations of zoning regulations that appear ludicrous on their face, which to me reflects either incompetence or misfeasance, at best, or at worst, malfeasance in the execution of their duty. Now, the Pelican Bay community has tried all day to provide reasonable and factual information that would demonstrate that the amendment approval was improper and attempting to introduce evidence, but even so -- even this has been objected to. So I would request that you do two things: That your decision be to overturn the previous decision and that you remand this back to your staff, and when they have reconsidered the proposal, that it be -- that its decision be done pursuant to public notice and public hearing. Thank you. Page 396 March 9 & 10, 2004 COMMISSIONER COYLE: Thank you very much. MS. FILSON: Clifford Landers? Mr. Landers will be followed by Leslie Zell. She will be your final speaker. MR. LANDERS: I'm a very unusual person in this room. I am a native Floridian and proud of the fact. And I love Pelican Bay, I love the Naples area, and I want to see it preserved. I don't want to see its character change. And we feel that this megalith, as it's been called, will indeed change the character of Pelican Bay, much for the worse. I want to speak for a group that hasn't been considered yet and that is a neighbor of the proposed Cap d'Antibes, but on the other side of the Boulevard, on the east of the Boulevard. I am a resident of San Marino, and we will fall into the shadow area of this giant 20-story, two-tower megalith. Probably from 3:00 in the afternoon during part of the year, we too will be in shadow. But that -- even that is not the worst of it. There is another consideration that hasn't been mentioned yet. I am not a physicist, but anyone with a rudimentary knowledge of aerodynamics will realize that the configuration of the building, two 20-story towers, joined by a four-story bridge is such that it will create a venturi effect, a wind tunnel effect. And if, heaven forbid, we get a hurricane in the Gulf, it will come right between those two buildings, accelerating as it does, and end up right on San Marino. We then are really very much the target of that kind of potential meteorological disaster. I think that you people have demonstrated your understanding and your willingness to listen to us. As others have said, you are intelligent, you're on top of the issues. You have a chance here to give us relief; relief in the sense of substantive due process. We've heard a lot about procedure today, but I'm sure that the fairness of this is something that you will keep uppermost in your minds. We hope then that you'll consider this, send it back for review and we will take the process from there in the open daylight of public Page 397 March 9 & 1 O, 2004 knowledge. Thank you. MS. FILSON: Your final speaker is Leslie Zell. MS. ZELL: Yes, thank you very much. I did not realize that Mr. Landers was going to speak. I live in the San Marino also. COMMISSIONER HENNING: Your name, please? MS. ZELL: Leslie Zell. I bought my property in May, 2002, and closed in August, 2002. During this time, the information available for the site opposite was that plans had been passed for two additional towers in Waterpark Place of a size comparable with the existing St. Pierre and St. Laurent. These towers would be approximately 2,000 feet tall (sic), with spaces 200 feet in between. It's these spaces that would give light, sun and sky to the area, in keeping with the rest of Pelican Bay. These buildings were shown on the Pelican Bay Foundation plan at the time. And that's how I purchased. Apparently during this time, this plan had already been changed without letting anyone know, and without any public notification. Much to my dismay, we now have plans for a huge monstrosity, 650 feet long, across the whole site, with only 50 feet between the adjacent plots. With these changes, there will be a considerable loss of light, sky and sun. Properties in this area and in the area of Pelican Bay Boulevard itself will be overshadowed by and in the shadow of this massive new structure. These changes could be a detriment to the use and enjoyment of the properties. This is not a small upgrade, but a vast deviation and alteration from these plans. Clearly, this is injurious to the nature of the neighborhood. I feel that the public and residents should have been notified about these plan changes at the time. I would like to thank you for listening to these points, and I urge you to reconsider the changes made today back to the original plans, Page 398 March 9 & 1 O, 2004 as do the many people here today. Everyone should take a responsibility for the character and nature of Pelican Bay for now and in the future. Better now than having to say in the future, if only. Thank you. COMMISSIONER COYLE: That was the last public speaker? MS. FILSON: Yes, Mr. Chairman. COMMISSIONER COYLE: County Attorney, I would like to close the public hearing, but I know that the Commissioners have questions of a number of people who have spoken. If we close the public hearing, would that prohibit them from asking those questions? MR. WEIGEL: No, not at all. You have your choice to leave the public hearing open. There are no more spea-- there are no more speakers to be had, and you can -- as Vice Chair sitting as Chair, with calling Commissioners, ask questions of anyone. Or you may in fact close the public hearing and still ask questions of anyone that you may wish to question. COMMISSIONER COYLE: Then I will close the public hearing. MR. PRITT: Mr. Chairman? Bob Pritt. Just a minor -- well, not a minor, but a housekeeping item. This morning I had asked that before we finished we be able to move our documents into evidence into the record, and I would like to do that at this time. I had referred to the notice of appeal and the exhibits that we attached to that. I think those are actually in your record, but they're jumbled in different -- in different order, so I would like to have a clean copy of that moved into evidence. COMMISSIONER COYLE: Mr. Pritt, can you specify for me whether all of those items are in our packet and have met the requirements for prior submission? MR. PRITT: I believe they -- I believe that all of ours are in there. It was a little bit of a problem because, for example, the Page 399 March 9 & 1 O, 2004 question that Mr. Hardt had asked appears on a page -- two pages in the 30s and then somewhere else in the 50s, so they're out of order. They're very jumbled. You'd probably know that if you looked at your packets. But it's my belief and understanding that all of our documents in the first submittal are. And that's what I'd like to have in the record. COMMISSIONER COYLE: Mr. Weigel, do you have any objections? MR. WEIGEL: Mr. Pritt, when you say the first submittal, you mean the submittal that came with the -- MR. PRITT: Yes. MR. WEIGEL: -- written notice of appeal? MR. PRITT: With the notice of appeal, right. MR. WEIGEL: If that's the case, I should think that there would be no objection to that. By the way, Mr. Chairman, staff reminds me that in the procedure we talked about this morning, staff did reserve its -- and the Board approved its having an ability to respond at the end before you went to the closed discussion. COMMISSIONER COYLE: Okay, that's not a problem. MR. WEIGEL: Okay. Thank you. MR. PRITT: Mr. Chairman, I'm not done yet. Mr. Chairman, the second submittal, the submittal that we made on March 2, 2004, I think all of you have that. It's our position that that also should be admitted into the record. That was sent to this Board within -- or beyond the seven-day requirement. We did not violate the seven-day requirement, so that was sent to the Board. We do request that that be admitted into evidence also. MR. WEIGEL: Okay. Looking to respond. In keeping with the previous advice and discussion that we provided earlier and you heard from others, the fact is that we believe, that we object to and would Page 400 March 9 & 1 O, 2004 advise the Board to not accept the proffers of written information that were tendered as recently as March 7th. There's been, again, a reference to submitting -- March 2nd -- there's been references to submitting something seven days prior to this hearing, but as Mr. White noted and I noted, there is -- a specific rule governs the general rule, and the general rule of quasi-governmental decision-making is in fact trumped, to use Patrick's word, by the appeal process of 1.6.6. So we would suggest to the Board not to accept this proffer of evidence that's been received recently. COMMISSIONER COYLE: Okay. Mr. Pritt, motion is denied. MR. PRITT: Okay, I would like to make a proffer of this. The procedure is, as the Chair may know, is we put that in the record as a proffered exhibit, but not accepted. And for the record, Mr. Chairman, it's a letter dated March 2, 2004 to Donna Fiala, Chair, and it consists of nine exhibits, and Exhibit 9 is A, B, C, D and E. COMMISSIONER COYLE: Good. MR. PRITT: And there was one other one. I believe two other matters. I had -- some time during this day, I asked if-- I recommended and asked that if the ordinance itself, the entire PUD ordinance could be put into the record. The best copy we have of the PUD ordinance is the 89-35, which made most of the changes. But there were several areas other than 7.03 that were discussed during the day, and I would ask that that be put into the record. I have no objection if the staff wants to have all of the iterations of the PUD ordinances in the record, but I think that that would be something -- COMMISSIONER COYLE: This is a document which existed prior to your submission of the appeal? MR. PRITT: Yes. This is -- this is the ordinance, 89-35. I'll give you my opinion. I think that this Board can accept -- can take Page 401 March 9 & 1 O, 2004 judicial notice of all of its ordinances and code sections, and we would ask that you do that. There are a lot of code sections that were referred to and ordinances -- sections that were referred to during this day that were not actually in front of the Board. And my recommendation would be that for purposes of the record that be complete. MS. MURRAY: Mr. Chairman, it's already in the record. I'm confused by the request, because all the ordinance iterations in the current ordinance are in there. MR. PRITT: No, I don't think so. Section -- I think just a couple of the sections are in there. I don't think the ordinance is -- the entire ordinance is in there. MS. MURRAY: The -- that-- well, yeah, it is in there. It's part of the executive summary. MR. PRITT: No, not-- MS. MURRAY: The ordinance was amended through the amendment process. It was not repealed and readopted, it was -- COMMISSIONER COYLE: Okay, let's cut through this. This is a document that is the county's own document, it existed prior to the time this decision was ever made, it existed prior to the time any appeal was ever lodged. I see no reason why it cannot be entered into the record. MR. WHITE: On that basis, Mr. Chairman, I'd ask that the Board accept it under the notion that Mr. Pritt had indicated, to take judicial notice of it. COMMISSIONER COYLE: Okay. MR. PRITT: Okay. And then -- I'm sorry? COMMISSIONER COYLE: Let him-- do you mind if we let him finish? Are you through? COMMISSIONER COLETTA: Well, yeah, it seems like this is all taking place with -- just between you and the attorney here -- Page 402 March 9 & 1 O, 2004 COMMISSIONER COYLE: Well, if you have a question, go ahead and ask the question. COMMISSIONER COLETTA: -- and I'd like to comment along the way someplace. COMMISSIONER COYLE: All right, go ahead. COMMISSIONER COLETTA: Yeah, I'm very concerned about the fact that these weren't handed in at the very beginning of the meeting, where somebody could critique what you actually got in those packages. I don't know what's in there. MR. PRITT: I did mention it at the very beginning of the meeting. COMMISSIONER COLETTA: But you didn't offer them into the record at that time. I'll tell you one of the problems I've got. In the past we've had people come up here during the meeting and hand us paperwork so they could say we had it in our hands, and that our decision was based upon actually the paperwork we had, and we had no chance to review it. MR. PRITT: I'd be glad to put it in your hands, if you'd like. COMMISSIONER COLETTA: Well, if you want to give me a couple of hours to go and review it and everything, that might be one thing. But I'm having a -- maybe I'm wrong on this. And now, you tell me, is this different that what we've dealt with in the past where people have brought information in at the last minute and handed us packages of information, and then we were responsible for what was in those packages, even though we never had a chance to read it? MR. WEIGEL: Well, I've always tried to keep you from being responsible in the improper way in that regard by noting for the record when something's been dumped to the record or given to the court reporter that it is something that this Board has not had the opportunity to review or read, either prior to or at the meeting. Page 403 March 9 & 1 O, 2004 In this particular case, Commissioner, I think that the material that was accepted was the material that was part of the appeal package that was submitted by Mr. Pritt on behalf of his clients. And that I believe is included within the agenda package itself. And the second materials that he wished to submit, which I suggested and Mr. Coyle indicated would not be acceptable, were the materials that were tendered on March 2nd to the Board directly, I think, and not through this process here today. And I indicated that for this -- for the record here, we objected and Mr. Coyle indicated an objection, and those have not been accepted here. The third thing was the -- that we take quote, judicial -- quasi-judicial notice of the Pelican Bay PUD. And he's referring to the 89 iteration, which captures many of the changes that occurred. There have been far fewer changes, that I believe the thought is none pertinent to the issues before the Board today. And you've taken judicial notice of the Pelican Bay PUD -- ostensibly, I think-- ordinance in its entirety. So there shouldn't be an issue in regard to the ordinance. I hope that answers the question there. COMMISSIONER COYLE: Commissioner Halas, you had a question? COMMISSIONER HALAS: Yes, I'm-- this is directed to Susan Murray or to anybody from staff. There was discussion, there was some items that were brought up for discussion in regards to a former employee saying they went through a process where a number of people looked at this documentation. Is there a paper trail that exists showing what people signed off on this document and why wasn't that presented as evidence today, if it does exist? MS. MURRAY: Yes, it does. And it is in your evidence packet. I believe in Item 7(A), as a matter of fact. COMMISSIONER HALAS: I didn't see it. Page 404 March 9 & 1 O, 2004 MS. MURRAY: I'm going to try and find it for you. COMMISSIONER HALAS: All I -- all I seen was just -- all that was there was just letters. MS. MURRAY: It might be -- 50? Okay. MR. WHITE: Thirty-one were the letters. COMMISSIONER HALAS: That's all I saw was the letters. But if there was a process where each person checked off on this -- MS. MURRAY: Yes, sir, that would be on Page 56 and 57. And it might not be evident by looking at that, but I can assure you, that is our -- that is a screen shot of all the required department reviewers and the status of their review relative to this site development plan amendment. MR. WHITE: That was the SDPA approval. MS. MURRAY: SDPA approval. COMMISSIONER HALAS: Okay. COMMISSIONER COYLE: Okay. Now, Mr. Pritt has not -- MR. PRITT: Mr. Chairman-- oh, I'm sorry. COMMISSIONER COYLE: Go ahead, Mr. Pritt. MR. PRITT: Yes, lastly, Mr. Volpe has asked that I bring to your attention his notice of appeal does not appear to be in your packet, in your record, and we would -- I think it's kind of a no-brainer, but I would ask that that -- be sure that that be in your record, his original notice of appeal. MS. MURRAY: We've copied everything that the petitioners gave us in the order that they gave it to us. It is all -- should all be in the record. We've copied everything that they gave to us as part of their submittal package. COMMISSIONER COYLE: Just so the other Commissioners understand, these are procedural issues, not issues to be voted on. COMMISSIONER HALAS: Right. COMMISSIONER COYLE: Now, the question is, can you tell Page 405 March 9 & 1 O, 2004 us, Susan, if it is in fact in the packet? MS. MURRAY: You don't have the original? MR. WHITE: I am looking through it now, Mr. Chairman. COMMISSIONER COYLE: Is there any objection-- legal objection to it being placed-- MR. WHITE: No, it can be included. COMMISSIONER COYLE: So let's admit it. MR. VOLPE: Mr. Chairman, just some housekeeping. It was not part of your agenda package, that's the reason for it. I would just like clarification. Ms. Murray on several occasions has referred to your agenda package. Is that then part of the evidence that is before this body in connection with this hearing? COMMISSIONER COYLE: Yes. MR. VOLPE: So the agenda package as submitted is. COMMISSIONER COYLE: Yes. MR. VOLPE: Thank you. COMMISSIONER COYLE: Okay, Ms. Murray, can you continue? MS. MURRAY: Yeah, I just need five minutes and I need to do some housekeeping items. I need to put a clarification on the record, and I just need to provide you some brief information and then summarize. First I want to just make a clarification for the record. In my response to Mr. Volpe under cross-examination, I attempted to respond to him. And if you remember, that was regarding clustering housing. I attempted to respond to him precisely within the limits of his question. And that makes me uncomfortable, and because the entirety of the question in the issue is not revealed when you do that. So for the record, I would just like to go ahead and state that the provisions of the Land Development Code, specifically Section 2.6.27 regarding clustering in the LDC, and that talks to the requirement for Page 406 March 9 & 1 O, 2004 the conditional use, does not factually apply to the multi-family within Pelican Bay PUD, because the PUD makes specific reference to the -- MR. PRITT: Mr. Chairman, we'd have to object to this. You closed the public hearing. COMMISSIONER COYLE: Mr. Pritt, we have asked and we reserve some time for our staff to provide a quick summary. I will take note of the fact that you have objected. Will you proceed? MR. PRITT: Staff-- staff is testifying again. And this -- you're taking more evidence after the public hearing. COMMISSIONER COYLE: Mr. Pritt, thank you very much. Will -- MS. MURRAY: It's for clarification. COMMISSIONER COYLE: -- you please sit down? MR. WHITE: Mr. Chairman, I'm not sure whether you officially have closed the public hearing or not. MR. WEIGEL: He did not. COMMISSIONER COYLE: I did close the public hearing. And I also specified that we would have questions of staff and other people, and we wanted them to talk at our pleasure, and that's what we're doing. MS. MURRAY: May I continue, Mr. Chair? COMMISSIONER COYLE: Yes, please continue. MS. MURRAY: Because the PUD makes specific reference to the site development plan process and approval thereof as the means by which you obtain a reduction in setbacks when you cluster buildings and apply a common architectural theme, I need to make that clear, that the provisions of clustering in the LDC do not apply. That's all I wanted to put on the record with respect to that. And that has been the common application for reducing setbacks within the Pelican Bay PUD for multi-family structures. Page 407 March 9 & 1 O, 2004 COMMISSIONER COYLE: Okay. Thank you very much. MS. MURRAY: The second part I wanted to clarify was I heard somebody put on the record about clustering and how because single-family land use was permitted in the Group 4 zoning -- or the Group 4 category of land uses within the Pelican Bay PUD, that the clustering provisions must only apply -- within the PUD must only apply to the single-family because under the Group 1 provisions, or Group 2 1 believe it is, excuse me, where single-family is permitted, that the clustering provisions again repeat themselves in there. And I wanted to let you know, or at least make you aware of the fact that the clustering provisions also apply within the commercial component of the PUD, and that has to do with building separation under 9.06, and it provides that all buildings shall been separated by 25 feet or one-half the sum of their heights, whichever is greater, except that in the case of clustered buildings with a common architectural theme, these distances may be less, provided that a site plan is approved in accordance with Section 2.05. So that -- that is not exclusive to single-family within the Pelican Bay PUD. I wanted to bring that to your attention. The other thing I wanted to bring to your attention -- COMMISSIONER COYLE: How many other things are we going to have, Ms. Murray? MS. MURRAY: I'm sorry, just -- just one. And then I need to summarize. Is that acceptable? COMMISSIONER COYLE: If you make it brief. MS. MURRAY: I will. On open space, we talked a lot about the reduction of open space as the result of the approval of the site development plan amendment. It's important to remember that open space is calculated on a PUD-wide basis. It is not calculated on an individual building basis. Page 408 March 9 & 1 O, 2004 In summary, Mr. Chairman, I just want to remind you, we are not here to debate a site development review process. We are not here to rework the approval of the site plan. Hearing opinions from architects, while that might be nice, if you line 10 architects up here, they'll all have an opinion. That really has no relevance to what we are here for. You're here to review the director's interpretation of the then existing facts and law related to the approval of the subject site development plan and to determine if any part of what staff did was inconsistent with the then existing LDC, which is inclusive of the PUD and the Growth Management Plan. Due to the dismissal of Item 7(B), you are now left with 7(A) and two questions. The two questions that were asked, and I'll hit the easiest one first, has to deal with the relevance of Section 2.8, which are the architectural and site design guideline standards of the Land Development Code and their applicability to this site development plan amendment. There is no applicability. As I stated earlier, the provisions of the code, Section 2.8 are only applicable to commercial and non-residential buildings as defined by the code. That leaves one remaining question to be answered. The question was, does the site development plan amendment qualify for a reduction from the minimum yard requirements under Section 7.04 -- COMMISSIONER COYLE: Ms. Murray, I'm going to ask you to wrap it up. The time is up. We've been very careful to try to keep to the appropriate time here. And I know you have some questions. But let me -- let me make a minute and just say something for the people who are waiting for a decision out there. I don't think any of us doubt the fact that you're upset and concerned and frustrated with this process. But I want to make sure you understand the basis on which we have to make a decision, and I'd Page 409 March 9 & 10, 2004 like to read this to you. The Board of Zoning Appeals, and that's us, shall not be authorized to modify or reject the Planning Services Director's interpretation, unless such Board finds the determination is not supported by substantial competent evidence, or that the interpretation is contrary to the code. Whether we like the building unfortunately doesn't enter into this decision-making process. It could be the ugliest building in the world, and we're not permitted under law to consider that. We are a government of laws, and we have to abide by the laws. And that's why we've been talking about procedure today. And if we are to reject the interpretation of the Planning Department, we must do so by citing clear violations of the code, our law, and not by using personal opinions about the quality of the construction or the size of the construction, unless that violates the code. So I want you to understand that although you've suggested that we should do the right thing, we are constrained to some extent by the law as to what action we can in fact take. So now comes the most time-consuming and frustrating part of this entire proceeding and that's listening to us talk. So we're -- MR. PRITT: Mr. Coyle? COMMISSIONER COYLE: Yes. MR. PRITT: We have not been given our opportunity to close, make our closing argument. Mr. Blakely has been waiting all day long to do -- COMMISSIONER COYLE: Mr. Pritt, it's all over, okay? We finished with this. We're going into deliberations. If you wish to object, please object, sir, we'll deal with it in court. But we are not going to keep going around in circles with this, okay? MR. PRITT: I -- okay, let me put my objection on the record, then. I object because I -- early this morning I reserved time for Page 410 March 9 & 1 O, 2004 rebuttal and closing. My partner has a very short closing for this Board. And Ms. Murray, under the guise of answering questions, gave her closing. We must be given our right to close, also. That is my objection. COMMISSIONER COYLE: Put it on the record. We note your objection. Gentlemen, do you have any questions? COMMISSIONER HENNING: Yes. COMMISSIONER COYLE: I'm sorry. Commissioner Henning. COMMISSIONER HENNING: No, don't be sorry. COMMISSIONER COYLE: Go ahead. COMMISSIONER HENNING: Ms. Murray, thank you for some of your statements, because it answered some of my questions. I really appreciate that. But I still have more questions. And reading Mr. Hardt's official interpretation, I seen a lot of language in there would -- would guide that the previous SDB (sic) approval was wrong. And I didn't see a lot of questions. So can you guide me through those, what we need to deliberate in that -- those questions? MS. MURRAY: Sure. You have specific questions you're going to ask me? COMMISSIONER HENNING: The issues of the architectural review. The architectural you've already addressed, but there is still one more -- MS. MURRAY: Okay. COMMISSIONER HENNING: -- that you were going to address? MS. MURRAY: Oh. Thank you. The question asked by the appellant was does the site development plan amendment qualify for a reduction from the minimum yard requirements under Section 7.04.03 of the PUD as a Page 411 March 9 & 1 O, 2004 development consisting of clustered buildings with a common architectural theme. My opinion is that Section 7 of the Pelican Bay PUD allows the development of multi-family residential buildings as a permitted residential use in Group 4. And from my review of the facts derived from the county of records for the SDP amendment, that the -- this application would qualify for a reduction from the minimum yard requirements for construction of multi-family buildings under the expressed terms of the conditions stated in Subsection 7.04.03(C) of the Pelican Bay PUD, which says that in the case of clustered buildings with a common architectural theme, these distances may be less, provided that a site plan is approved in accordance with Section 2.05. COMMISSIONER HENNING: The documents that you used to come to the interpretation -- or your conclusion was based on the Land Development Code and the planned unit development? MS. MURRAY: Well, for this question -- well, yes. Yes. For this question, you would refer to Section 7.04.03, a part of which I just read. When you get to the issue of common architectural theme, the PUD does not state what common architectural theme is, what elements of common architectural theme need to be present in order to allow for the reduction. When that is the case, staff goes to the LDC for regulation that either states that or is very similar to that. In this case, it happens to be under 2.6.27, which is the clustering provisions of the LDC. And the clustering provisions of the LDC, when it talks about common architectural theme, provides that for additional reduction to development standards for common architectural theme, and that's just the heading of the section there, the subsection, but underneath one, two and three, it provides some specific criteria upon which you would evaluate for a further reduction in this case. And that was the criteria that was -- that was relied upon Page 412 March 9 & 1 O, 2004 by staff. COMMISSIONER HENNING: Okay. The PUD document, it's my understanding -- well, no, I'll let you tell me. Is it the governing document when you review site plans, or is it the Land Development Code? MS. MURRAY: It's -- it's the PUD -- in the case of what we're talking about here, it's the PUD that's going to govern. And I'm talking about the development regulations. Where the PUD is silent on things, then you would turn to the Land Development Code. COMMISSIONER HENNING: The -- there was one part in here, and maybe what I'll do, I'll just go to the other CommisSioners and I'll ask you, but I need to find it. You reviewed staff's review of the site development plan and came to a conclusion that they reviewed the PUD and the Land Development Code and it (sic) to be within harmony? MS. MURRAY: Well, I did not review the site development plan. This -- this process is one in which I respond to questions that are asked through the official interpretation process. So to the extent that I need to review the record or elements of the record to respond to those questions, that's what I did. This is not a rereview of the SDP to determine if staff did it right. It's simply a review of the elements of the record necessary to answer the questions of the interpretation. COMMISSIONER HENNING: Okay, thanks. COMMISSIONER COYLE: Commissioner Halas? COMMISSIONER HALAS: I was under the impression that we were also in this interpretation to determine whether staff had made the correct assumptions in regards to a following, adhering to the LDC that was present for the site development plan. Am I correct in that? MR. WHITE: Just have one minute. COMMISSIONER COYLE: You want to break for dinner? COMMISSIONER HALAS: I didn't mean to ask such a hard Page 413 March 9 & 1 O, 2004 question. MS. MURRAY: I'm sorry, Mr. Chairman. COMMISSIONER COYLE: Okay. MR. WHITE: Mr. Halas, you had a question. I think that's where we left off. COMMISSIONER HALAS: Okay. The question was, when the site development plan was submitted, was the LDC, that used for the site development plan? If it was, then that's what we're here for, to see if the people who were on watch at that time interpreted the LDC correctly. Is that right? MR. WHITE: Commissioner Halas, I don't believe that's the scope of what these proceedings pertain to. And in fact, we did not hear from any of the county staff about what prior -- COMMISSIONER HALAS: Well -- MR. WHITE: -- staff did. COMMISSIONER HALAS: -- we're looking at if the -- if everybody -- if everything was done in accordance with the LDC that was presently -- that was present at the time of the site development plan; is that correct? MR. WHITE: The only thing that is the scope of this hearing today were the questions that were asked as part of the official interpretation that Susan has just identified. And as to any rereview of prior staff action, that is not the subject of either the interpretations, as we read them, or of this appeal. MR. WEIGEL: I think, Commissioner, the question is, where appropriate the LDC was utilized, and if not necessary, because the PUD is the primary document the PUD was utilized, maybe that is your question, or words to that effect. COMMISSIONER HALAS: Exactly. My understanding, and what I may be -- correct me if I'm wrong, but in the site development plan, as it was submitted, that what was used at that point in time was Page 414 March 9 & 1 O, 2004 the current Land Development Codes that were put in place; is that correct? And that's-- MS. MURRAY: Well, let me clarify. And I hope maybe my answer to Commissioner Henning didn't confuse the issue. Because the -- COMMISSIONER HALAS: Because that's where I picked up on it. MS. MURRAY: Okay. Where you have -- you've got your Pelican Bay PUD, which controls the process in this case. However, the Pel-- COMMISSIONER HALAS: To a point. MS. MURRAY: Right. The Pelican Bay PUD was silent on some issues with respect to common architectural theme. Where the PUD is silent, generally what you look for is some set of similar criteria in the code that you might apply to meet that requirement. It's not to say that you go and then you extract the section of 2.6.27 that applies and yes, you have to use that. We rely on the LDC as a resource for similar information or similar regulations where the PUD is silent, where the PUD does not provide very specific guidelines. If there are guidelines provided in the LDC that are similar, then we would use that as a resource. And that's what the staff-- that's what the staff did in this case. And I guess my opinion is that is not -- that's not wrong. Does that help clarify? COMMISSIONER HALAS: That helps. MS. MURRAY: Okay. COMMISSIONER HALAS: Can I ask a question? In the case of the site development plan and the Land Development Code, is there a point in time when common sense enters into the equation? COMMISSIONER COYLE: No. MS. MURRAY: I really don't know how to answer that. Common sense is not defined in the Land Development Code. Page 415 March 9 & 1 O, 2004 COMMISSIONER HALAS: Well, I know that, but you would think that if you looked at something and you -- MS. MURRAY: Let me clarify it this way. Yes, you -- as a professional planner, okay, trained and'educated in the application of land development regulations and the review of the Growth Management Plan, of the creation of Growth Management Plan and the creation of Land Development Code regulations, you would use your best professional judgment to evaluate what would be the most appropriate provision to assist you where the PUD is a silent -- is silent. COMMISSIONER HALAS: Okay. When I look at the whole PUD and I look at the way the buildings are laid out and the architectural theme, it seems that we have something maybe lacking here in one area, because it didn't -- it didn't show up any other time except for this last piece of property. Am I right or wrong? MS. MURRAY: If you're asking did other buildings within this development not avail themselves of the same provisions regarding the reductions, I would have to answer no. The St. Pierre had a reduction, and they applied the same provision. They would have to apply the same provision. COMMISSIONER HALAS: But I'm talking about the size in regards to the way that the buildings were situated on this whole PUD. MS. MURRAY: Provided they meet the minimum standards that are within the document, they are considered to be legal. COMMISSIONER HALAS: I just have a -- I understand why these people are so upset, because I live in a neighborhood also where there's a lot of high-rises, and the way that it's created a problem and it's -- everything was legal, but the problem is that when you start to look at a community, an upscale community such as Pelican Bay, and then we look at what transpired over the period of time, over the period of years as Pelican Bay was being developed, and then we Page 416 March 9 & 10, 2004 come down to this last piece of property and we see what took place here, even though the Land Development Code was used to the utmost, it looks like there was some liberties taking -- taken that maybe didn't lead to good common sense. MS. MURRAY: I don't know how that opinion would factor into the requirements -- required findings that you're required to make relative to this application, but that certainly is your opinion. COMMISSIONER HALAS: I mean, that would be where that -- there would be the possibility of looking at this and saying does it really work here for this particular piece of development. MS. MURRAY: I hear what you're saying. I think unfortunately the staff is constrained by what's in the codes and their interpretation thereof. COMMISSIONER HALAS: And that's what bothers me is that the codes may be to a point where they're so liberal that we stretch the envelope maybe a little too far and then we lose the compatibility and the theme of what was trying to be encompassed in this whole PUD. That's what concerns me -- MS. MURRAY: I understand. COMMISSIONER HALAS: -- and it concerns me greatly. And I just hope that whatever the outcome is here, that we address this so that it never happens in any other communities. MR. WHITE: Mr. Chairman, there's just one question that seems to be still in my mind, and I'm likely the fellow who's going to have to address the subsequent litigation in this matter, and I'm just looking to create a clear record for that purpose. And as to Ms. Murray's comment about -- in response to Commissioner Halas's question, I thought I heard her say that she was responding to what she believed prior staff had done with respect to its review. And I just want to make sure that that's indeed what you intended to say, because I don't know that Susan's talked to those Page 417 March 9 & 1 O, 2004 individuals and I don't know that it was part of the official interpretation process at all, or if her answer was intended to say that as part of her consideration of the official interpretation request she looked at those items -- MS. MURRAY: Oh, yeah. MR. WHITE: -- that were both in the SDP record in terms of the letters that are in the appeal file, et cetera, and whether she considered the provisions of the LDC for guidance. And if I could ask her to clarify that, then I think it will help with our record. MS. MURRAY: As to the first part of your question, if I believe I heard you correctly, I did not speak with any staff members that were involved in the review or approved the project. I -- again, my review is limited to the questions asked and to the extent that I need to pull records, paper records and review them and able to respond to the questions, that's the extent of my research and involvement with that. MR. WHITE: And I think I heard you say that you looked into 2.6.27 for a consideration of some of the elements of a common architectural theme? MS. MURRAY: Yes. MR. WHITE: And is that -- but you don't know that the staff did that previously? MR. PRITT: Mr. Chairman, may I please object to this. We're starting a new public hearing. MR. WHITE: I'm just trying -- MR. PRITT: Now -- now Mr. White is asking the questions, answering the questions, rehabilitating his own witness. You closed the public hearing, and you told me to sit down and not to say anything more, but I can't resist. COMMISSIONER COYLE: I asked you to sit down, I didn't tell you to. Page 418 March 9 & 1 O, 2004 MR. PRITT: I just have to object to this whole thing. COMMISSIONER COYLE: I understand. Thank you very much. MR. WHITE: I'm just trying to be clear, and both in answer to Commissioner Halas's question. COMMISSIONER COYLE: All right. Commissioner Halas, have you gotten an answer to your question? COMMISSIONER HALAS: Vague. You said that now you had to pull out some additional paperwork? MS. MURRAY: No, I -- let me try one more time to clarify. COMMISSIONER HALAS: All right. MS. MURRAY: The -- what I'm relying on from the record is a letter from the approving planner outlining the elements of common architectural theme that they applied and identified that were consistently applied by this office, meaning the planning office. And those are similar to the provisions in 2.6.27. So I made an assumption that he applied those. Right or wrong, that was the basis of my response. COMMISSIONER HALAS: COMMISSIONER COYLE: COMMISSIONER HALAS: COMMISSIONER COYLE: Thank you. Commissioner Halas, you okay? Yes. Commissioner Coletta? COMMISSIONER COLETTA: I'm fine. COMMISSIONER COYLE: You're fine? Commissioner Henning? COMMISSIONER HENNING: Ms. Murray, one of the attorneys on this side has referenced to 2.05 of the PUD. And I don't know if this is relevant or not or whether you even should answer the question, but it's referring to a director, but it -- and I'm assuming that that's the planning director? I mean, I know they have a -- the Page 419 March 9 & 1 O, 2004 Foundation has employees that could be directors. MS. MURRAY: Yes, that -- that is the planning director, in my opinion that's -- COMMISSIONER HENNING: Okay. Thank you. COMMISSIONER COYLE: Any other questions? I guess it's up to me. Ms. Murray, will you put that chart up on the projector, please? MS. MURRAY: Which page, Commissioner? COMMISSIONER COYLE: Well, it looks like Page 2. MS. MURRAY: Two? COMMISSIONER COYLE: Yeah. Let's go to Page 4, I'm sorry, because that has some additional information on it that will make it easier to refer to the chart. Now, in both Tract A and Tract B, there are zero lot lines, apparently for the parking garages and the tennis courts. Now, how did that come about? MS. MURRAY: Well, as I put on the record earlier, the original site development plan approved in 1990 was actually -- the parcel was platted as one complete tract with four separate buildings on there. COMMISSIONER COYLE: Right. MS. MURRAY: When they fractionalized the tract into these various tracts, these were the lines that were drawn. That's how they were fractionalized. So I guess to answer your question, it really in our opinion isn't zero lot line if you're measuring from the parcel boundary. And that was how the original SDP was reviewed and approved. And same with the amendments. COMMISSIONER COYLE: But then they treated -- they created tract boundaries which redefined the ownership boundaries between the property; did it not? MS. MURRAY: Well, I can't speak to the ownership or the Page 420 March 9 & 1 O, 2004 transference of ownership thereto in terms of when that happened or who it went to. I don't have those details. But I believe that was the purpose of actually drawing those lines, was to have the ability to transfer to different owners. COMMISSIONER COYLE: Now, would those two structures, the two parking buildings, have been in conformance to the PUD had they been built on a property line at zero setback in the beginning? MS. MURRAY: Well, if you took the measurement from the tract line, then no, they would not comply. COMMISSIONER COYLE: Okay. The proposed building in Tracts C and D that we call now Cap d'Antibes, tell me why the appropriate setback for that building was not measured from the parking structure and why it was measured from the St. Laurent? MS. MURRAY: The requirement is for a building separation for principal structures. COMMISSIONER COYLE: So the separation requirement does not apply to accessory structures? MS. MURRAY: The -- let me pull it out so I make Sure I tell you the right thing. The regulation says that from minimum yards from tract or development parcel lines, right-of-way lines and/or the edge of gutter of a private road, 50 feet or one-half the height of the structure, whichever is greater, except that detached accessory structures shall be set back 20 feet or one-half the height, whichever is greater. So there's a different regulation for -- COMMISSIONER COYLE: But you mentioned the setback from a tract line would be 50 feet or one-half of the height. Not, it's -- refresh my memory, it was determined that the Cap d'Antibes did not have to meet that because it was a clustered development, a clustered unit; is that essentially the case? MS. MURRAY: Could you restate your question for me, Page 421 March 9 & 1 O, 2004 because I think we're -- I'm crossing over two different issues, and I just want to be sure I'm clear. COMMISSIONER COYLE: Yeah, you stated that the setback from a tract line would be 50 feet or one-half the height of the proposed building. MS. MURRAY: Well, the code -- the way it reads says from tract or development parcel lines. So you could measure from either. And in this case, the original site plan was submitted, measuring from the parcel or the overall line. COMMISSIONER COYLE: The -- help me with the term parcel. The -- it was my understanding that the blue lines identify the parcel lines, the parcel itself. MS. MURRAY: That's -- yeah, that's my opinion, yes. COMMISSIONER COYLE: So we didn't really measure from a parcel line when we tried to determine the setback, we measured from a tract line. But in fact you measure from a building. MS. MURRAY: I think we're maybe mixing up a little bit. There's two different regulations: There's a regulation that says you have to have a building separation distance, and there's a regulation that says the building has to be set back from the parcel line in this case, how it was applied. So both regulations would be -- would come into effect here. COMMISSIONER COYLE: But in this case, we didn't use the parcel line for that particular boundary. We used the building, the next closest building? MS. MURRAY: Right, between the St. Laurent and Cap d'Antibes? COMMISSIONER COYLE: Yes. MS. MURRAY: Yes, that would be the -- COMMISSIONER COYLE: Now, there's a one-unit building between those structures. What is that one-unit building? Page 422 March 9 & 1 O, 2004 MS. MURRAY: I don't know for a fact. COMMISSIONER COYLE: Can somebody tell me? Yes, sir. Yes, I'm sorry, Mr. Raia -- MR. WHITE: Could you come up to the microphone, please. MR. RAIA: The reason why the developer does that, it makes him subject to the homeowners' association rather than a condominium association. This gives the developer more authority in administering the entire Waterpark Place. COMMISSIONER COYLE: Is that a habitable building? MS. MURRAY: What is it? MR. RAIA: It's not there, it's only on paper. But as long as it's on paper and they are really developing four, or in this case three buildings, as long as he shows the intent of having one private residence, it's no longer subject to condominium association law. It becomes homeowner association law. COMMISSIONER HENNING: What's that guy's name? COMMISSIONER COYLE: Yeah. Okay. COMMISSIONER HENNING: We need his name for the record. COMMISSIONER COYLE: No, he gave it. It was Ted Raia. MS. MURRAY: I assume that means it's a single-family home? I still don't think you have the answer to your question. COMMISSIONER COYLE: Yeah, that's right. My point was, would it have been appropriate to measure from that building site as the closest building site to the Cap d'Antibes, even if it is not yet constructed? MS. MURRAY: Well, a couple of things. If you define it as a principal structure, yes. COMMISSIONER COYLE: Okay. The -- let's talk a little bit about compatible architectural style, or common architectural theme I think is the appropriate term. Page 423 March 9 & 1 O, 2004 If-- in reaching that particular conclusion, is it fair to say that only the Cap d'Antibes property itself was evaluated for common architectural theme? Or is it the position that the proposed Cap d'Antibes is also compatible with the St. Laurent and the St. Pierre? MS. MURRAY: Commissioner, I'd have to rely on the elements of the record. Again, I did not review or approve the plan. I can only repeat what's in the record. And I think I have something here that might answer your question. This was a letter dated February 14th, 2000 from the planner who eventually approved the project. And he states that: We have reviewed the architectural plan for Waterpark Towers, a twin tower building complex with a common first story, and its relationship to the remainder of Waterpark, a unified plan of development, and have concluded that Waterpark Towers -- I assume he's talking about Cap d'Antibes -- qualifies and contributes to the common architectural theme for all Waterpark. Then he goes on to say -- he goes on to describe the elements of common architectural theme that he utilized in his evaluation, and says that the towers by themselves are of similar intensity and volume to existing buildings; the orientation of Waterpark Towers to the St. Laurent and St. Raphael are at angles to one another, diminishing the effect of the reduced separation. I believe that answers -- COMMISSIONER HALAS: Who was the -- who is the planner's name there? MS. MURRAY: Ron Nino. COMMISSIONER COYLE: Okay, the issue of common architectural theme and clustering and open space seems to have been tied fairly closely together. It seems there's almost a chain linking those three considerations. I want to make sure I understand the issue with respect to open space. As I understand the argument, the Pelican Bay PUD itself specified open space based upon the assumption that there would be Page 424 March 9 & 1 O, 2004 clustering throughout the Pelican Bay PUD. And that open space was essentially established in the PUD at what, a little over 600, 700 acres? Is that -- MS. MURRAY: More or less, yeah. COMMISSIONER COYLE: -- about where we were with that? MS. MURRAY: There was some conservation as well, so, again, you can include that in the calculation of open space. COMMISSIONER COYLE: Okay. And so that open space was established at the time the PUD was established; is that a fair statement? MS. MURRAY: That's my understanding. COMMISSIONER COYLE: Okay. Is it your understanding that two buildings, and these were originally proposed as two buildings, could be clustered, essentially moved closer together, if they themselves had a common architectural theme, without regard to any neighboring structures? MS. MURRAY: Yes. COMMISSIONER COYLE: Okay. All right, thank you very much. COMMISSIONER HENNING: Commissioner, the problem that I see is, why we're here, at one time this is all one tract or one parcel, and then they were subdivided off into what we see here as four. And then the present owner of Tract J, I guess it is, then joined the two together, creating this large building. And so one or the other, if the Land -- or the PUD did not allow any subdividing or -- at the beginning, or what we have here today, we wouldn't be sitting up here. That's the whole issue. And I know that we can -- I could buy my neighbor's property next door and join them together, because the Land Development Code provides it. I don't live in a PUD, and I didn't see anywhere in this PUD that says you cannot do what's been done here today. And that's a shame. Page 425 March 9 & 1 O, 2004 And that's what I see is a whole issue is why we have this such big building here, because there was nothing there to prevent it. Mr. Chairman, I -- at this time, listening to all the evidence today, I find that our planning director interpretation is correct. And I feel that at this point, if it's appropriate, I'll go ahead and make a motion. COMMISSIONER COYLE: It's appropriate. Go ahead. COMMISSIONER HENNING: I make a motion that we find the interpretation of our planning director correct; therefore, denying the appeal. COMMISSIONER COYLE: Is there a second? COMMISSIONER COLETTA: I'll make a second to that. COMMISSIONER COYLE: Okay. We have a motion by Commissioner Henning, a second by Commissioner Coletta. There will be -- now be discussion. Gentlemen, any discussion concerning this? COMMISSIONER HENNING: Could you state the motion? COMMISSIONER COYLE: The motion, as I understand it, is that we find that our planning director did in fact issue an appropriate interpretation. MR. WHITE: And that would be on both of the issues that were identified in the-- COMMISSIONER COYLE: Let's -- MR. WHITE: -- interpretation? COMMISSIONER HENNING: Mr. Hardt's letter? COMMISSIONER COYLE: We've already disqualified one appeal, so I don't know if we're going to vote -- MR. WHITE: I was going to give you the reference to this. They were questions one and four in that interpretation, the other three being essentially fact questions that couldn't be answered. But the correct, I think, item for the purposes of the motion is that it's -- finding the interpretation that is essentially AR-4307, is supported and Page 426 March 9 & 1 O, 2004 that the appeal, ADA-2004-AR-5218, is denied. COMMISSIONER HENNING: That's part of my motion. MR. WHITE: I just have one other piece of housekeeping, and it's in terms again of the record, and that is to indicate to all that the CD that Dr. Raia had included as part of his presentation has been given to our stenographer and is part of the record in this case. MR. WEIGEL: I have a question for the motion maker and that is that with the motion made and restated -- COMMISSIONER COYLE: Before you do that, let me raise an issue concerning the motion, please, with Commissioner Henning's patience here. What we have before us is a petition, an application to overturn the staff's interpretation. The motion, as it is currently stated, does not directly address the petition itself. So would it not be better to rephrase the motion to deny the petition? MR. WEIGEL: I think Mr. Henning actually mentioned that. COMMISSIONER HENNING: The appeal. COMMISSIONER COYLE: The appeal, I'm sorry. MR. WEIGEL: It's the appeal, yes. And I think it appears that what you have stated at this point encapsulizes a motion to deny the appeal for agenda Item 7(A), referencing ADA-2004-AR-5218, and adopt the interpretation of the Zoning Director without modification, noting that the interpretation is supported by substantial competent evidence. COMMISSIONER HENNING: That's part of my motion. MR. WHITE: And I would only add to that for the purposes of clarity that the interpretation citation is in all caps, INTP-2003-AR-, as I indicated earlier, 4307. COMMISSIONER COYLE: Okay, gentlemen, any discussion? COMMISSIONER COLETTA: Add that to my second. COMMISSIONER COYLE: Okay. Commissioner Halas? Page 427 March 9 & 1 O, 2004 COMMISSIONER HALAS' I just -- yes, again, I disagree. I feel that this building is out of character. And it's sure not compatible with the community there. And I'd just like to put that on the record. COMMISSIONER COYLE: (No response.) COMMISSIONER COYLE: All in favor, say aye. COMMISSIONER COLETTA: Okay. Any other comments? I'll call the question. Aye. COMMISSIONER COMMISSIONER COMMISSIONER HENNING: Aye. COYLE: All opposed? HALAS: Aye. COMMISSIONER COYLE: Aye. So the vote is 2 to 2. Motion fails. Is there another motion? COMMISSIONER HALAS: I make a motion that we approve this appeal. COMMISSIONER COYLE: And I'll second the motion. MR. WHITE: In that case, Mr. Chairman, I think we would need to have what the grounds are for rejecting or in what way you would seek to modify the Planning Services Director's interpretation. That's what 1.6.6 requires. COMMISSIONER COYLE: Okay, I'll give you my reasons. I find that the -- the three issues, the one of creating additional greenspace by consolidating buildings in a single -- or in closer proximity, and the reduction of the side yard setbacks was not done in conformance with our code. And with specific reference to the fact that the side yard setback was not determined from the closest building structure to the -- I guess it would be to the south, that is the St. Laurent. And secondly, that the clustering process is to be done primarily to create additional common space, encouraging the conservation of Page 428 March 9 & 1 O, 2004 environmental resources. The -- there is no evidence that the clustering of these buildings in any way created any more common space or resulted in the conservation of environmental resources. I find the argument that such open space was provided at the beginning of the PUD to be unconvincing, because there was no way at the beginning of the PUD anyone could have anticipated this particular clustering concept. And this clustering concept did in fact not result in any additional common space or conservation of environmental resources anywhere in Pelican Bay. At least there's no evidence to that fact. So for the reason that clustering is done to achieve, among other things, the conservation of environmental resources and the creation of common open space, and the fact that clustering and the common architectural theme are essential in order to grant reductions of setback, those are the reasons that I would vote in favor of the appeal. COMMISSIONER HALAS: I concur. COMMISSIONER HENNING: May I? COMMISSIONER COYLE: Sure, go ahead. COMMISSIONER HENNING: The evidence that was before us was the PUD and the Land Development Code, with the PUD being a higher document. And it doesn't say in 7.04(C) anything about greenspace or environment in that. It says in the case of clustering buildings with common architectural theme, these distances may be . less provided that the site plan is approved in accordance to Section 2.05 of the PUD. And there's nothing in here, in 2.05, that says anything about increased greenspace or environment. COMMISSIONER COYLE: The -- the definition of cluster development is contained in our code, Paragraph 6.3. And that clearly says that one of the reasons is a reduction in standard lot requirements of the applicable zoning district with a difference being the reduced lot size and standard lot requirement being placed in common open space. Page 429 March 9 & 10, 2004 And in code Section 2.6.27.1 it further identifies encouraging conservation of environmental resources and containing a more usable pattern of open space as a requirement. Now, all this is of course hindsight. And under no circumstances am I criticizing that the -- the staff's conclusion here, I am merely saying that my evaluation of the process, having the benefit of all of the information that has been assembled and presented, has led me to this particular conclusion. COMMISSIONER HENNING: Commissioner, the -- and I'm not -- I know you're not attacking our staff and I know you wouldn't do anything like that. The only point that I'm bringing out is the PUD is a higher document than the Land Development Code, and whatever the PUD doesn't say, you go back to the Land Development Code. COMMISSIONER HALAS: That's exactly what we're doing. COMMISSIONER HENN1NG: So you're saying -- okay, well -- COMMISSIONER HALAS: Exactly going back to the Land Development Code, the interpretation. COMMISSIONER HENNING: Okay. I'm done. Let's vote. COMMISSIONER COYLE: Okay, we've got a motion. MR. WEIGEL: The motion I think was made by Commissioner Halas -- COMMISSIONER COYLE: Halas, and seconded by me. MR. WEIGEL: And Mr. Coyle iterated it in quite some detail. Mr. Halas, if I missed it, do you go on the record to adopt that as your motion? COMMISSIONER HALAS: Yes, I do. MR. WEIGEL: And the second by Mr. Coyle? COMMISSIONER COYLE: I do. MR. WEIGEL: Thank you. COMMISSIONER COYLE: Then I'll call the motion. All in favor, please signify by saying aye. COMMISSIONER HALAS: Aye. Page 430 March 9 & 1 O, 2004 COMMISSIONER COYLE: Aye. All opposed? COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. COMMISSIONER COYLE: Still a tie vote. Commissioner Halas and Commissioner Coyle aye, and Commissioner Coletta and Commissioner Henning nay. And the motion fails. And we are finished. I'm closing the meeting. We are adjourned. *****Commissioner Coletta moved, seconded by Commissioner Coyle and carried unanimously, that the following items under the Consent and Summary Agendas be approved and/or adopted: ***** Item # 16A 1 RESOLUTION 2004-65 AUTHORIZING F1NAL ACCEPTANCE OF THE ROADWAY, DRAINAGE, WATER AND SEWER IMPROVEMENTS FOR THE FINAL PLAT OF "EDEN AT THE STRAND REPLAT- 1". ROADWAY AND DRAINAGE IMPROVEMENTS WILL BE PRIVATELY MAINTAINED, AND WATER AND SEWER IMPROVEMENTS WILL BE MAINTAINED BY COIJ~IF.R COl INTY Item #16A2 BUDGET AMENDMENT IN THE AMOUNT OF $18,900 TO FUND TEMPORARY SEASONAL PART TIME STAFF CONSISTENT WITH PAST YEARS FOR CONDUCTING SEA TI IRTI.E MONITORING FOR THE 2004 NESTING SEASON Page 431 March 9 & 1 O, 2004 Item # 16A3 FINAL PLAT OF "VERONAWALK PHASE lB" AR4692, AND APPROVAL OF THE STANDARD FORM CONSTRUCTION AND MAINTENANCE AGREEMENT AND THE PF. RFORMANCFi SF. CI ~RITY Item # 16A4 100% REIMBURSABLE ARTIFICIAL REEF CONSTRUCTION GRANT FOR THE AMOUNT OF $25,000 FROM THE FLORIDA FISH AND WII.DI,IFF, CONSFRVATION COMMISSION Item #16B 1 BID REJECTED UNDER BID #04-3595 "CLEARING, GRI JBPlING, TRF,F, TRIMMING & RF. MOVAIJ SF. RVICF, S" Item # 16B2 DONATION AGREEMENT FOR THE ACQUISITION OF A PERPETUAL, NON-EXCLUSIVE EASEMENT, WHICH IS REQUIRED FOR THE PURPOSE OF CONSTRUCTING AND MAINTAINING A SIDEWALK ALONG THE NORTH SIDE OF THE COCOHATCHEE CANAL, ACROSS TRACTS "B" AND "C" OF CARLTON LAKES UNIT ONE, ACCEPT THE CONVEYANCE OF SAID EASEMENT, AND AUTHORIZE THE PAYMENT OF SOUTH FLORIDA WATER MANAGEMENT DISTRICT PFRMIT APPI.ICATION FF.F.S Item #16B3 Page 432 March 9 & 1 O, 2004 SUPPLEMENTAL AGREEMENT NO. 9 FOR PROFESSIONAL DESIGN SERVICES BY HOLE MONTES, INC., FOR THE IMMOKALEE ROAD SIX-LANING PROJECT FROM U.S. 41 TO 1-75, 11NDER BID NI~MBF, R 00-3057 Item # 16C 1 APPROVAL OF A BUDGET AMENDMENT TO RECOGNIZE ADDITIONAL REVENUE FROM CONTRACT NO. ML040284 WITH THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT, A POLLUTION CONTROL SURFACE WATER SAMPI JNG PROGRAM Item #16C2 AGREEMENT BETWEEN CALUSA ISLAND VILLAGE, L.C., A FLORIDA LIMITED LIABILITY COMPANY AND THE BOARD OF COUNTY COMMISSIONERS REGARDING THE PROPOSED UPGRADES TO THE GOODLAND WATER PUMPING STATION Item #16C3 PURCHASE OF A 2.8 I-ACRE LOT AT THE NORTHWEST CORNER OF WILSON BOULEVARD AND 14TM AVENUE NW FOR WATER SUPPLY WELL SITES AT A TOTAL COST NOT TO EXCEED $79,735.00 Item #16C4 Page 433 March 9 & 10, 2004 COMPETITIVE BIDDING PROCESS WAIVED FOR TECHNICAL ASSISTANCE TO PERFORM A POST IMPLEMENTATION REVIEW, WORKFLOW ANALYSIS AND DOCUMENTATION OF OPERATING PROCEDURF. S FOR THE UTILITY BILLING SOFTWARE SYSTEM AT A NOT-TO- EXCEED COST OF $72,300 WITH VACCARO CONSULTiNG, INC. Item #16C5 ACCEPTANCE OF AMENDMENTS TO TWO GRANT AGREEMENTS (PROJECT TIME EXTENSIONS) WITH SOUTH FI.ORIDA MANAGF, MF, NT DISTRICT Item # 16C6 FUNDING AND BUDGET AMENDMENT FOR PROJECT MANAGEMENT PROCESS DOCUMENTATION AND AUTHORIZATION OF THE PUBLIC UTILITIES ENGINEERING DIRECTOR TO EXECUTE WORK ORDER GH-FT-04-02 WITH GREELEY & HANSEN IN THE AMOUNT OF $31,706, PROJECT 75000 Item #16C7 - Moved to Item #10E Item # 16C8 GRANT AGREEMENT (GREASE CONTROL EDUCATIONAL PROGRAM) FROM THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT IN THE TOTAL AMOUNT OF $25:000 Page 434 March 9 & 1 O, 2004 Item #16C9 FOUR GRANT AGREEMENTS FROM THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT IN THE TOTAL AMOUNT OF $315,700 Item # 16D 1 RESOLUTION 2004-66 ESTABLISHING THE COLLIER COUNTY HEALTH DEPARTMENT FEE SCHEDULE FOR FY2004 Item # 16E 1 RESOLUTIONS 2001-294 AND 2002-464 REPEALED AND RESOLUTION 2004-67 ADOPTED FOR THE SOLE PURPOSE OF REMOVING ANY LANGUAGE RELATED TO AUTHORIZATION TO SIGN GRANT APPLICATIONS RECOGNIZING THAT SUCH AUTHORITY IS OUTLINED IN THE COUNTY MANAGER'S GRANT COORDINATION PROCEDURE IN THE PRACTICES AND PROCEDURES MANIIAIJ Item # 16E2 APPROVAL AND RATIFICATION OF A RECOMMENDATION TO FILE SUIT FOR RECOVERY OF REPAIR/REPLACEMENT COSTS INCURRED BY THE COUNTY IN CONNECTION WITH PROPERTY DAMAGE CAIISF, D BY A THIRD PARTY Page 435 March 9 & 10, 2004 Item #16E3 APPROVAL TO UTILIZE STATE CONTRACTS FOR PURCHASE OF FURNITURE AND FLOOR COVERING OVER TWFNTY-FIVFJ THOIISAND DOIJI.ARS ($25:000) Item #16E4 REPORT AND RATIFICATION OF STAFF-APPROVED CHANGE ORDERS AND CHANGES TO WORK ORDERS TO BOARD-APPROVED CONTRACTS Item # 16E5 APPROVAL OF PAYMENTS TO SUB-CONSULTANTS FOR THE NAPLES JAIL PROJECT 1N THE AMOUNT OF $112,845. TO TLC ENGINEERING, TKW ENGINEERING AND WALKING PARKING CONSI II~TANTS Item # 16E6 ANNUAL CONTRACT FOR UNDERGROUND UTILITY CONTRACTING SERVICES PURSUANT TO RFP #04-3535, IN THE ESTIMATED ANNUAL AMOUNT OF $6,000,000 TO SIX FIRMS AS Ol JTI.INFD IN THF. F. XF. CI JTIVF, SI JMMARY Item # 16E7 CONTRACT FOR CONSTRUCTION MANAGER AT RISK FOR THE PROPOSED COURTHOUSE ANNEX AND PARKING Page 436 March 9 & 10, 2004 GARAGE, RFP #04-3576 - AWARDED TO KRAFT CONSTRI ICTION 1NC. Item #16E8 AMENDMENT NO. 1, CONTRACT #02-3422, TO DISNEY AND ASSOCIATES, P.A., FOR ARCHITECTURAL SERVICES FOR DESIGN OF THE NEW COUNTY FLEET FACILITY 1N THE AMOI JNT OF $154~750 Item # 16F 1 RECOGNITION AND APPROVAL OF THE FEMA ASSISTANCE TO FIREFIGHTER'S MATCHING (90/10) GRANT IN THE AMOI JNT OF $157:500 Item #16F2 APPROVAL OF COOPERATIVE AGREEMENT WITH THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT ACCEPTING $1,000,000 ANNUAL FUNDING CONTRIBUTION TO COLLIER COUNTY FOR THE FIRST TEN YEARS OF THE TWENTY-YEAR A GR F.F, MF, NT Item # 16G 1 BUDGET AMENDMENT INCREASE OF $16,000 TO FUND REVISED ESTIMATED COSTS TO COMPLETE POWDER COATING CONVERSION AND OTHER IMPROVEMENTS TO THE POWDER COATING FACILITY AT THE IMMOKALEE RF, GIONAI. AIRPORT Page 437 March 9 & 10, 2004 Item # 16G2 APPROVAL OF THE SEARCH FOR AN EXECUTIVE DIRECTOR FOR THE COLLIER COUNTY AIRPORT Al JTHORITY Item # 16H 1 COMMISSIONER COLETTA'S REQUEST FOR APPROVAL FOR REIMBURSEMENT FOR ATTENDING A FUNCTION SERVING A VALID PUBLIC PURPOSE FOR THE HISPANIC CHAMBER OF COMMERCE OF COLLIER COUNTY ANNUAL AWARDS BANQUET ON MARCH 13, 2004 FROM 6:00 P.M. TO MIDNIGHT AT THE El,KS CIJlJB IN THE AMOIJNT OF $65_00 Item # 1611 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 438 BOARD OF COUNTY COMMISSIONERS MISCELLANEOUS CORRESPONDENCE March 9, 2004 FOR BOARD ACTION: A. Minutes: Pelican Bay Services Division - Agenda for January 21, 2004; February 4, 2004, Minutes of January 7, 2004, and Minutes for January 21, 2004 for both the 1:00 special meeting and the 2:00 special meeting; Budget Sub-Committee Agenda for January 28, and February 18, 2004, Sub- Committee Minutes for December 10, 2003; January 28, 2004 and February 18, 2004 and Minutes of February 7, 2004. Collier County Planning Commission - Agenda for February 5 and 19, 2004; Minutes of July 18, 2003, December 18, 2003, and January 15, 2004. Parks and Recreation Advisory Board - Agenda for February 18, 2004; Minutes of January 21, 2004. Citizen Corps Advisory Committee - Agenda for November 20, 2003 and January 15, 2004; Minutes of November 20, 2003 and January 15, 2004. Golden Gate Estates Land Trust Committee - Minutes of November 24, 2003. 6. Coastal Advisory Committee - Minutes of January 8, 2004. o Immokalee Area Master Plan Ad Hoc Committee - Agenda for February 18, 2004, Minutes of February 4, 2004. o Ochopee Fire Control District Advisory_ Committee - Minutes of November 12, 2003, and January 13, 2004. Vanderbilt Beach M.S.T.U. - _Agenda for February 5, 2004 and March 4, 2004; Minutes of January 8 and February 5, 2004. 10. Conservation Land Acquisition Advisory Committee - Agenda for December 5, 2003, December 15, 2003, January 12, 2004 and February 9, 2004; Minutes of November 10, 2003; December 15, 2003 and January 12, 2004; Voting Conflict for County Municipal and other Local Published Officers. 11. Development Services Advisory Sub-Committee (Budget and Operations Sub-Committee) Agenda and Minutes for February 10, 2004. Regular Agenda for February 4, 2004; Minutes of December 3, 2003 and January 7, 2004. H:Data/Format 12. 13. 14. 15. Collier County Historical Archaeological Preservation Board - Agenda for January 21, 2004 and February 18, 2004; Minutes of December 17, 2003 and January 21, 2004. Collier County Hispanic Affairs Advisory Board - Agenda for November 20, 2003; January 22, 2004; January 22, 2004; Minutes of November 20, 2003 December 18, 2003. Collier County Revenue Commission - Minutes for October 8, 2003. Collier County Library Advisory Board - Agenda for January 28, 2004; Minutes of December 10, 2003. ~ 16. Bayshore Beautification M.S.T.U. - Agenda for February 11, 2004; Minutes of January 14, 2004. 17. Tourist Development Council - Minutes of January 27, 2003, February 24, 2003, March 24, 2003, April 28, 2003, May 28, 2003, June 23, 2003, August 21, 2003 (Sub Committee), September 22, 2003, October 27, 2003, November 24, 2003 and December 22, 2003. There are no minutes for July, 2003. 18. Forest Lakes Roadway and Drainage M.S.T.U. - Agenda for February 18, 2004; Minutes for Special Meeting on January 12, and Regular meeting minutes for 21, 2004. 19. Environmental Advisory Council - Agenda for February 4, 2004; Minutes of January 7, 2004. 20. Collier County Coastal Advisory Committee - Agenda for February 12, 2004. 21. Radio Road Beautification M.S.T.U. - Agenda for January 20, 2004; Minutes of January 20, 2003. 22. Collier County Contractor's Licensing Board - Agenda for February 18, 2004. 23. Black Affairs Advisory Board - Minutes of December 15, 2003. 24. Lely Golf Estates Beautification M.S.T.U. - Agenda for February 19, 2004; Minutes of January 15, 2004. 25. Immokalee Beautification M.S.T.U. Advisory Committee - Agenda for January 21, 2004, and February 18, 2004; Minutes of January 21, 2004. 26. Productivity Committee - Minutes of January 21,. 2004. H:Data/Format March 9 & 10, 2004 Item #16J1 THAT THE BOARD OF COUNTY COMMISSIONERS MAKE A DETERMINATION OF WHETHER THE PURCHASES OF GOODS AND SERVICES DOCUMENTED IN THE DETAILED REPORT OF OPEN PURCHASE ORDERS SERVE A VALID PUBLIC PURPOSE AND AUTHORIZE THE EXPENDITURE OF COUNTY FUNDS TO SATISFY SAID PURCHASES. A COPY OF THE DETAILED REPORT IS ON DISPLAY IN THE COUNTY MANAGER'S OFFICE, 2N° FLOOR, W. HARMON TURNER BI JII,DING~ 3301 FiAST TAMIAMI TRAIIJ~ NAPIJF, S FIJ. Item #16K1 APPROVAL OF A REVISED RETENTION AGREEMENT WITH THE LAW FIRM OF CARLTON, FIELDS, WARD, EMMANUEL AND SMITH, P.A.; WAIVE THE PURCHASING POLICY TO THE EXTENT THAT IS NECESSARY, AND/OR EXEMPT THIS REQUEST FROM FORMAL COMPETITION PURSUANT TO SF, CTION VII.G_ OF THF, Pl IRCHAS1NG POI~ICY Item #17A RESOLUTION 2004-68 RE PETITION AVPLAT2003-AR4687 TO DISCLAIM, RENOUNCE AND VACATE THE COUNTY'S AND THE PUBLIC'S INTEREST IN A PORTION OF THE 10 FOOT WIDE DRAINAGE EASEMENT LOCATED ALONG THE REAR OF LOT 171, ACCORDING TO THE PLAT OF "PHASE TWO QUEENS PARK AT LAGO VERDE" LOCATED IN SF, CTION 18:TOWNSHIP 50 SOI ITH, RANGF, 26 F, AST Page 439 March 9 & 10, 2004 Item #17B - Moved to Item #8B Item # 17C ORDINANCE 2004-14 RE PUDZ-2003-AR-4648, FLORIDA CONFERENCE ASSOCIATION OF SEVENTH-DAY ADVENTISTS REPRESENTED BY ROBERT L. DUANE OF HOLE MONTES, INC., AND RICHARD D. YOVANOVICH, ESQ. OF GOODLETTE, COLEMAN & JOHNSON, REQUESTING A REZONE FROM "A" RURAL AGRICULTURAL AND "PUD" PLANNED UNIT DEVELOPMENT TO PUD KNOWN AS THE LOCH RIDGE PUD BY AMEND1NG THE PUD MASTER PLAN TO INCRF~ASE ACREAGE FROM 13.44 ACRES TO 18.05 ACRES, SHOW A CHANGE IN OWNERSHIP, ADD CHURCH, PRIVATE SCHOOL, AND COMMUNITY CENTER AS PERMITTED USES, REVISE THE PLANT NURSERIES,FLORIST AND VEGETABLE SALES USES TO BE ALLOWED ONLY ON A TEMPORARY BASIS FOR UP TO THREE YEARS, ELIMINATE ASSISTED LIVING FACILITY AS A PERMITTED USE, AND ADD ACCESSORY USES RELATED TO CHURCH AND SCHOOL, PROPERTY IS LOCATED ON THE SOUTH SIDE OF DAVIS BOULEVARD, APPROXIMATELY 2000 FEET EAST OF THE KINGS WAY/DAVIS BOULEVARD INTERSECTION, IN SECTION 7, TOWNSHIP 50 SOUTH, RANGF, 26 FJAST~ COIJJIFJR COl JNTY, FI,ORIDA Page 440 March 9 & 1 O, 2004 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 8'00 p.m. BOARD OF COUNTY COMMISSIONERS BOARD OF ZONING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL DISTRICTS UNDER ITS CONTR L )ONNA FIALA, Chairman ATTEST: DWIGHT E. BROCK, CLERK as presehte'd'' ~ or as co:ected TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC. BY TERRI LEWIS, ELIZABETH BROOKS AND CHERIE NOTTINGHAM Page 441