Agenda 02/24/2009 Item #16K 3
Agenda Item No. 16K3
February 24,2009
Page 1 of 53
EXECUTIVE SUMMARY
Recommendation to approve Petition CU-2005-AR-8748, to allow a Conditional Use in the
Rural Agricultural (A) zoning district to remove in excess of 12,000 cubic yards of earth
for an aquaculture facility in the Agricultural (A) zoning district, pursuant to Land
Development Code subsection 2.03.01.A.1.a.2. The subject property, consisting of
approximately 15.08 acres, is located at 2060 Tobias Street, in Section 22, Township 49
South, Range 27 East, Collier County, Florida.
OBJECTIVE: To have the Board of Zoning Appeals approve the above referenced Conditional
Use petition so as to be in conformance with the February 2, 2009 ruling of the Collier Circuit
Court.
CONSIDERATIONS: This matter was first heerd by the Board of Zoning Appeals on October
23,2007. In his petition for a conditional use, Mr. Fawzy sought, and still seeks, a conditional
use to remove approximately 300,000 cubic yards of fill within a NRPA sending area.
It was, and remains, Mr. Fawzy's stated intent to utilize the subject property as a fish farm. Mr.
Fawzy's position is that fish farming is a permitted activity on this parcel, which is located in an
Agricultural (A) zoning district In order to commence operations, Mr. Fawzy proposed to
excavate a large pond area. The need for a Conditional Use was not for the stated intended
use of the parcel, or for the excavation, but was for the removal of 300,000 cubic yards of fill, as
the LDC requires a conditional use permit to remove in excess of anything over 4.000 cubic
yards of fill per lot, or 12,000 cubic yards for Mr. Fawzy's 3 lots.
The Planning Commission heard this matter on August 2, 2007 and split 4-4 in its decision. The
BZA then heard the matter and denied the application on the basis that the proposed use was
inconsistent with the sending land designation of the FLUE as well as Policy 3.1.1.3 of the
Conservation and Coastal Management Element of the GMP, which provides that conditional
uses can only be granted in those areas under extraordinary circumstances, which did not exist
here. Mr. Fawzy then appealed the BZA's denial to the Circuit Court
The Court. in finding for Mr. Fawzy, ruled that there was no competent and substantial evidence
to deny the conditional use for fill removal, and sent this matter back to the BZA. Under Florida
law, unless appealed to the District Court of Appeal, the Circuit Court's decision requires the
BZA to now approve the Petition.
It is the opinion of the County Attorney that the Court completely missed the larger issue of this
case, which is that the proposed use itself violates the County's GMP, and that no development
order can be issued which is not consistent with the GMP. It is the further opinion of the County
Attorney that an appeal of this Order to the District Court of Appeals stands a fair chance of
prevailing. Having said that, the question now becomes whether an appeal is worth pursuing,
given the change in circumstances since this matter was heard and the impact pursuing an
appeal would have upon Mr. Fawzy.
-
Mr. Fawzy is proposing to create a new business, the likes of which will be new to Collier
County and to Southwest Florida. One of the underlying concerns of both the Planning
Commission and the BZA was the fear that given the value of fill at the time, if the County were
to allow the use, others might, under the guise of "fish farming", create disguised fill mines in
AgsnJa itsm 1'~o. I Gt<3
Fpry":y" ')4 ')(Fj9
environmentally sensitive areas. That concern has been greatly lessened by the~'stgl1j~~@~3
reduced demand for fill since the BZA last heard this matter.
Another concern of both the Planning Commission and the BZA during the 2007 hearings was
the potential contamination to the surficial aquifer by this proposed operation. The County
Attorney has reviewed the State's extensive regulations for this type of business and believes
that so long as Mr. Fawzy conducts his operation in accordance with these required regulations,
this is not a significant concern.
It is the opinion of the County Attorney that granting this petition will not establish a precedent
for "fish farming" mines being created in that the Court failed to address the merits of Mr.
Fawzy's Right-To-Farm claims. The Court granted Mr. Fawzy relief on grounds related to the
nature of the testimony provided at the October 23, 2007 hearing. Any future attempts to seek a
conditional use similar to Mr. Fawzy's asserting that a precedent has already been set may be
easily dismissed as the BCC is only granting the instant Conditional Use under Order of the
Court.
Additionally, any remaining concern of the Board regarding potential "fish farming" mines could
be more directly addressed by the BCC directing staff to amend the Land Development Code to
ensure that the only aquaculture allowed in environmentally sensitive areas would be in above-
ground pools or by other means that would not result in the removal of large amounts of fill from
environmentally sensitive lands.
FISCAL IMPACT: The approval of this petition will have no fiscal impact on the County. If it is
the direction of the BZA that the County Attorney commence an appeal, all work will be done in-
house, and the fiscal impact to the County will be limited to Court filing fees.
GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with
this Executive Summary.
LEGAL CONSIDERATIONS: This item has been reviewed for legal sufficiency and is legally
sufficient for Board action. This matter is quasi-judicial and such requires ex parte disclosure.
This matter requires super-majority vote.
RECOMMENDATIONS: That the BZA adopt the Resolution for Petition CU-2005-AR-8748, and
authorize the Chairman to execute the Resolution.
PREPARED BY: Jeffrey A. Klatzkow, County Attorney
",...~.
Item Number:
Item Summary:
Meeting Date:
Page I of 1
i~qencJa Item No. 16K3
, esbruary 24,2009
Page 3 of 53
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
1'3K3
This Item requires that ex parte disclosure be provided by Commission Members Should a
hearing be held on this Item, all participants are required to be sworn in, Recommendation to
approve Petition CU-2005-AR-8748, to allow a Conditional Use in the Rural Agricultural (A)
zoning district to excavate In excess of 4,000 cubic yards of earth for an aquaculture facility in
the Agricultural (A) zoning district, pursuant to Land Development Code subsection
2,03,Q1.A.1.3.2. The subject property, consisting of approximately 15,08 acres. is located at
2060 Tobias Street. in Section 22, Township 49 South. Range 27 East, Collier County,
Florida.
2/24/200990000 AM
Prepared By
Jeff Klatzkow
County Attorney
Assistant County Attorney
County Attorney Office
Date
2/13/200912:29:4; PM
Approved By
Wanda Rodriguez
County Attorney
Legal Secretary
County Attorney Office
Date
2/13/20092:37 PM
Approved By
Jeff Klatzkow
County Attorney
Assistant County Attorney
County Attorney Office
Date
2113/20092:43 PM
Approvl'd By
OMS Coordinator
County Manager's Office
OMS Coordinator
Date
Office of Management & Budget
2/13/20094:06 PM
ApprO'\!cd By
John A. Yonkosky
County Manager's Office
Director of the Office of Management
Office of Management & Budget
Date
2/16/20099:21 AM
Appro\-'ed By
James V. Mudd
Board of County
Commissioners
County Manager
Date
County Manager's Office
2/17/20099:14 AM
file://C:\AgendaTest\Export\ 124-Februarv%2024, %202009\ 16,%20CONSENT%20AGEND.., 2/18/2009
,':.gt:nCJCi item :''':0. 1 :)K3
F~bnJarv 24. 2009
Page 4 of 53
RESOLUTION 09-
A RESOLUTION OF THE BOARD OF ZONING APPEALS
OF COLLIER COUNTY, FLORIDA, RELATING TO
PETITION NUMBER CU-2005-AR-8748, GRANTING A
CONDITIONAL USE FOR EARTH MINING IN THE
RURAL AGRICULTURAL "A" ZONING DISTRICT, FOR
PROPERTY LOCATED AT 2060 TOBIAS STREET IN
SECTION 22, TOWNSHIP 49 SOUTH, RANGE 27 EAST,
COLLIER COUNTY, FLORIDA.
WHEREAS, the Legislature of the State of Florida in Chapter 67-1246, Laws of Florida,
and Chapter 125, Florida Statutes, has conferred on Collier County the power to establish,
coordinate and enforce zoning and such business regulations as are necessary for the protection
of the public; and
WHEREAS, the County pursuant thereto has adopted a Land Development Code
(Ordinance No. 2004-41, as amended) which includes a Comprehensive Zoning Ordinance
establishing regulations for the zoning of particular geographic divisions of the County, among
which is the granting of Conditional Uses; and
WHEREAS, the Collier County Planning Commission forwarded the petition to the
Board of Zoning Appeals without a formal recommendation; and
WHEREAS, the Board of Zoning Appeals previously heard and denied this matter on
October 23, 2007 and the Petitioner appealed the decision to the Collier Circuit Court; and
WHEREAS, the Collier Circuit Court has remanded this matter back to the Board of
Zoning Appeals to make findings not inconsistent with the Court's Order.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ZONING APPEALS
OF COLLIER COUNTY, FLORIDA that:
For the reasons set forth in the record, the Petition filed by Alan Roseman of Q. Grady
Minor & Associates, P.A., representing Ashraf Fawzy, with respect to the property hereinafter
described in Exhibit A, be the same is hereby granted for a Conditional Use for earth mining and
excavation in excess of 12,000 cubic yards (4,000 cubic yards per parcel) in the Rural
Agricultural "A" Zoning District.
Page I of2
Agenda Item t~o. 16K3
February 24,2009
Page 5 of 53
BE IT FURTHER RESOLVED that this Resolution be recorded in the minutes of this
Board.
This Resolution adopted after motion, second and majority vote, this _ day of
,2009.
ATTEST:
DWIGHT E BROCK, CLERK
BOARD OF ZONING APPEALS
COLLIER COUNTY, FLORIDA
By:
, Deputy Clerk
By:
DONNA FIALA, CHAIRMAN
Approved as to form and
legal sufficiency:
It::. 7. W.Ql
Steven T. Williams
Assistant County Attorney
Exhibits Attached:
A. Legal description
Page 2 of2
Aqenda ItBm No.1 CK3
- February 24, 2009
Page 6 of 53
EXHIBIT. "A"
FAWZY AQUACULTURE
PROPERTY DESCRIPTION
THE WEST 1/2 OF THE NORTH 1/2. OF THE SOUTH '/2. OF THE NORTH '/2.
OF THE SOUTH 1/2. OF THE NORTHEAST 1/4: LESS THE WEST 35 FEET THEREOF.
-DEDICATED FOR ROAD PURPOSES: AND THE WEST '/2 OF THE SOUTH 1/2. OF THE SOUTH 1/2.
: OF THE NORTH 1/2. OF THE SOUTH 1/2. Of THE NORTHEAST 1/4: LESS THE WEST 35 FEET THEREOf.
DEDICATED fOR ROAO PURPOSES: AND WEST '/2 OF THE NORTH 1/2. OF THE NORTH '/2. Of
THE SOUTH 1/2. Of THE SOUTH 1/2. OF THE NORTHEAST 1/4: LESS THE WEST 35 FEET THEREOf. DEDICTEO
FOR ROAD PURPOSES, AlL LYING AND BEING IN SECTION 22. TOWNSHIP 49 SOUTH. RANGE 27 EAST
. COLLIER COUNTY. FLORDIA.
.
Agenda Item No. 16~\3
February 24 2009
'$3ge f!J (3
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND ~R <;:;:;
COLLIER COUNTY, FLORIDA CIVIL ACTii\N '3 G
t -r.
u:J .?; 0
ASHRAFFAWZY, .-I-r
C ~ 0_
OPy -.. S:1~
Petitioner, '" ~
--
vs.
Case No. 07.4570CA
COLLIER COUNTY,
Respondent.
/
ORDER GRANTING PETITION FOR WRIT OF CERTIORARI
THIS CAUSE comes before the Court on Ashraf Fawzy's Petition for Writ of Certiorari
and Appendix, filed November 21, 2007, pursuant to Fla. Stat. ~ 332.2615(13) and Fla. Stat. ~
322.31. Having reviewed the petition with appendix, the response, the entire record, and being
fully advised, the Court finds as follows:
I. Petitioner challenges the Collier County Zoning Board of Appeal's denial of a
conditional use permit to transport fill off of Petitioner's agricultural site. Specifically, Petitioner
asserts that there is no competent, substantial evidence to support the Zoning Board's denial.
2. A brief summary of the facts and procedural history is necessary to understand this
case. Petitioner is the owner of three parcels ofland. The property is zoned for agricultural use,
even though it is situated in an area of relatively great environmental sensitivity. Petitioner
planned on operating a fish farm on his property, which is a permitted use on his land. By law,
Petitioner is allowed to remove up to 4,000 cubic yards per piece of property of fill without a
permit. Thus, he could have removed up to 12,000 cubic yards without having to undergo the
permitting process. As Petitioner sought to remove up to 300,000 cubic yards, he was required to
seek a conditional permit for the removal of the fill, for which he dutifully applied. The
application for the conditional use permit wound its way through many departments and agencies
:\gerlca item ~'Jo. -161<3
February 24, 2009
Page 8 of 53
before finally being sent to the Zoning Board of Appeals. Apparently the application made its
way successfully through most of these until it reached the Collier County Planning Commission.
The Planning Commission deadlocked 4-4 over whether to recommend approval, and instead
declined to make any recommendation at alL The Planning Commission sent it directly to the
Zoning Board of Appeals to consider the issue. It is important to note that the Zoning Board of
Appeals was not acting in its appellate capacity at the hearing; rather it was considering the
application for a conditional use permit for the first time. Given the nature of the proceedings,
there is no written final order denying the permit.
2. A public hearing was held on October 23, 2007, at which time the Board of County
Commissioners sat as the Zoning Board of Appeals and heard testimony.
3. The applicable standard of review by a circuit court of an administrative agency
decision is limited to: (I) whether procedural due process was accorded; (2) whether the essential
requirements of law have been observed; and (3) whether the administrative findings and
judgment are supported by competent substantial evidence. The Court is not entitled to reweigh
the evidence, to reevaluate the credibility of the evidence, or to substitute its judgment for that of
the agency. Haines City Community Development v. Hel!l!s, 658 So. 2d 523 (Fla. 1995).
4. In his petition for writ of certiorari, Petitioner asserts two grounds of error; first, that
there was no record evidence to support the Board's denial of the conditional use permit, and
second, that the Board's denial constituted a departure from the essential requirements of the law.
5. As concerns his claim that there was no competent, substantial evidence to support the
denial, Petitioner argues that he demonstrated to the Board that the conditional use met the
objective standards for approval through expert testimony, the professional staff report, staff
testimony, and neighbor testimony. Initial Brief, p.l2-14. He also asserts that no contrary
2
Agenda Jtem No. 16K3
February 24, 2009
Page 9 of 53
evidence was presented to the Board.
6, The record reflects that much discussion and testimony was devoted to the
pennissibility and desirability of excavation for a fish farm on Petitioner's land. However, as
Petitioner asserts, those issues were not before the Zoning Board of Appeal the day of the
hearing; rather, the sole issue before them was whether or not Petitioner should be granted a
conditional use permit for the removal of the fill in excess of 12,000 cubic yards. Petitioner
alleges that he had met the conditional use requirements for removal. Initial Brief, p.I3. There is
nothing in the record that indicates the Zoning Board of Appeals ever considered the conditional
use criteria for removal and Petitioner's failure to meet them. Rather, the record reflects
Petitioner's repeated attempts to restrict the issue to the removal offill and the Board's apparent
confusion as to the precise nature of the issue before it. T. 5, 15-16,26-27,37.38. As it does not
appear that the Zoning Board of Appeal ever made a finding that Petitioner failed to meet the
conditional use criteria as to the removal of fill, it does not appear to this Court that there was
competent and substantial evidence for the Board's denial. Because it appears that the Board's
denial should be quashed on Petitioner's first ground alone, this Court will not address
Petitioner's second claim. Accordingly, it is
ORDERED AND ADJUDGED that Petitioner's petition for writ of certiorari is
GRANTED. The Zoning Board of Appeal's denial is quashed and this case is REMANDED for
further proceedings.
DONE AND ORDERED in Chambers at Naples, Collier County, Florida, this 1J,f}
day of
~p,v'7
,2009.
~-~
H~D. a
Circuit Judge
3
i\genda Item No. 16K3
February 24. 2009
Page 10 of 53
Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the above order has been furnished
to Richard D. Yovanovich, Esq., Goodlette, Coleman & Johnson, PA, 4001 Tamiami Trail
North, Suite 300, Naples, Florida 34103; David C. Weigel, Esq., Collier County Attorney, 3301
E. Tamiami Trail, Naples, Florida 34112; and Court Administration (X), 3301 E. Tamiami Trail,
Naples, Florida 34112, this day of ,2009.
By:
DWIGHT E. BROCK
Clerk of Court
Deputy Clerk
4
f''.genda Item No. 16K3
February 24 2009
October 2f-'1!ll.; '2'667
County Attorney's Office. My own personal opinion.
MR. WEIGEL: That's fine, of course.
CHAIRMAN COLETTA: That's no -- meant negative or
derogatory against you or your staff.
MR. WEIGEL: Well, I'm -- quite frankly, I'm not concerned
about internal ability to do it. The uncomfortable aspect is the fact
that we work with these people and we work in positions of trust, you
know, on a day-to-day basis for projects and everything else that
works for the -- ultimately under the direction of the board. So it
makes a difficult triangle there.
But I appreciate the clarification today that's come out of this
one, and we can provide what you're looking for, and we'll do it in as
short order as we can, I can assure you that of.
CHAIRMAN COLETTA: Okay. Any other instructions,
questions regarding this?
COMMISSIONER FIALA: I agree.
CHAIRMAN COLETTA: Okay. I think at this point we're
adjourned. Let's make it back here at --let's see. 12:30, 1 :30, a
quarter to.
COMMISSIONER FIALA: Thank you.
COMMISSIONER HENNING: Quarter to two.
COMMISSIONER COYLE: To one or two?
CHAIRMAN COLETTA: If we do it quarter of one, we've got
about seven minutes.
(A luncheon recess was had.)
MR. MUDD: Ladies and gentlemen, if you'd please take your
seats.
Mr. Chairman, Commissioners, you have a hot mike.
CHAIRMAN COLETTA: Welcome back. Mr. Mudd, I believe
our next item is our time certain for one o'clock.
Item #8A
Page 114
.i>"genda :tem hlo. .1 C,K3
February 24, 2UC\9
October 2~~T4;~007
RESOLUTION OF DENIAL 2007-298 FOR PETITION CU-2005-
AR-8748, ASHRAF FAWZY, REPRESENTED BY WAYNE
ARNOLD, AICP, OF Q. GRADY MINOR & ASSOCIATES, P.A.,
REQUESTING A CONDITIONAL USE IN THE RURAL
AGRICULTURAL (A) ZONING DISTRICT TO EXCAVATE IN
EXCESS OF 4,000 CUBIC YARDS OF EARTH FOR AN
AQUACUL TURE FACILITY IN THE AGRICULTURAL (A)
ZONING DISTRICT, PER SECTION 2.04.03 TABLE 2 OF THE
LAND DEVELOPMENT CODE (LDC). THE SUBJECT
PROPERTY, CONSISTING OF APPROXIMATELY 15.08 ACRES,
IS LOCATED AT 2060 TOBIAS STREET, IN SECTION 22,
TOWNSHIP 49 SOUTH, RANGE 27 EAST, COLLIER COUNTY,
FLORIDA - MOTION TO DENY - ADOPTED
MR. MUDD: Yes, sir. This is 8A. This item -- this item is
continued from the October 9, 2007, meeting. This item requires that
all participants be sworn in and ex parte disclosure be provided by
commission members.
It's petition CU-2005-AR-8748, Ashraf Fawzy represented by
Wayne Arnold, AICP, of Q. Grady Minor & Associates, P.A.,
requesting approval of a conditional use in the rural agricultural A
zoning district to excavate in excess of 4,000 cubic yards of earth for
an aquaculture facility in the agricultural A zoning district per section
2.04.03, table 2, ofthe Land Development Code.
The subject property, consisting of approximately 15.08 acres, is
located at 2060 Tobias Street in Section 22, Township 49 south,
Range 27 east, Collier County, Florida.
And for clarification -- as was stated bv Commissioner Covle this
.; ~ J -
morning, for clarification, yes, the excavation is in excess of 4,000
cubic yards, and I believe their total estimated amount is 300,000.
CHAIRMAN COLETTA: Okay. Thank you, Mr. Mudd.
Page 115
Agenda Item No. 16K3
February 24, 2009
October 23~~4~3t607
Would all those wishing to participate on this item, please stand
at this time to be sworn in by the court reporter.
(The speakers were duly sworn.)
CHAIRMAN COLETTA: Thank you. And now for ex parte
disclosures from our fellow commissioners, starting with
Commissioner Henning.
COMMISSIONER HENNING: I received an email from Lisa
Resnick, a phone call from Steve Hackney, and that's it.
CHAIRMAN COLETTA: Commissioner Fiala?
COMMISSIONER FIALA: Yes. I met with the petitioner and
his representatives, and I received an email from Silvia Difalco and
from -- looks like Sharon Bumpinaur. And as I said, I met with the
petitioner and his representatives.
CHAIRMAN COLETTA: Thank you, Commissioner Fiala.
I, myself, have received numerous emails, have had meetings and
phone calls, and way too many to be able to read off to you here.
And with that, we'll go to Commissioner Halas.
COMMISSIONER FIALA: I had one more. I'm so sorry.
CHAIRMAN COLETTA: I'm sorry. Go ahead.
COMMISSIONER FIALA: And I spoke privately to staff a little
bit and also to a couple people in the environmental community.
Thank you.
CHAIRMAN COLETTA: And I also spoke to staff, and my
file's up here for anyone that wishes to see it.
Commissioner Halas?
COMMISSIONER HALAS: Thank you very much, Chairman.
I met with the petitioner and also with the person that owns this
piece of property. I've also talked with staff and I've talked with legal
counsel in regards to this issue. It says I had received some emails,
but I didn't see those emails, so obviously I'll say that there was emails
that were also incorporated in this particular hearing. Thank you.
CHAIRMAN COLETTA: Thank you, sir.
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Aoenja item No. "15K3
" February 24, 2009
Ra"o 144~
October 2j-z4, Lvu7
Commissioner Coyle?
COMMISSIONER COYLE: I feel left out. Nobody's talked with
me, and I don't have any record of any emails.ldid talk with staff
about the issue. But other than that, that's the extent of my discussion.
CHAIRMAN COLETTA: Okay. Thank you.
Mr. Mudd?
MR. MUDD: Mr. Yovanovich, are you representing the
petitioner?
MR. YOV ANOVICH: Yes, sir. Good afternoon. For the record,
Rich Y ovanovich on behalf of the petitioner. With me today is the
petitioner, Ashraf Fawzy; Wayne Arnold, of Grady Minor &
Associates; Mike Delate from Grady Minor & Associates; and Jeremy
Sterk from Davidson Engineering, right?
Before you today is a request to remove dirt from a piece of
property. Mr. Fawzy owns a I5-acre parcel out in the North Belle
Meade overlay area and is planning on building a fish farn1, and
aquaculture is a permitted using on the property today.
And there's -- I think there's been some confusion about whether
or not we're asking for the ability to do the fish farm today, which
we're not because it's already a permitted use. We can dig the hole.
What we can't do is we cannot remove the dirt -- because it's greater
than 4,000 cubic yards per parcel -- without going through the
conditional use process.
And so we're here before you for a conditional use to remove dirt
from the ground to implement the fish farm.
The property, as I said, is in the North Belle Meade overlay. Mr.
Fawzy already has the required license he needs to construct and
operate the fish farm.
We have gone to the Environmental Advisory Council, and they
have recommended approval of the conditional use. We have met
with the Frangipani Association, which is the neighborhood that we
will be impacting while we remove the dirt from the land, and we
Page 117
Agenda Item ~Io. 16K3
February 24,2009
October 23~!,1f165'7
have entered into an agreement -- and it's dated November 1,2006--
for the use of their private roads because where this property is
located, it's not on public roads.
And I'll take you through briefly where it is, but -- and I spoke to
Mr. Greg Bower yesterday, who was the person who signed this
document on behalf of the association. He says the association still
supports this.
And what I told him, to give the association additional comfort, I
would recommend that we attach this agreement to the conditional use
so not only do they as an association have the ability to enforce the
agreement, but the county would also have the ability to enforce the
agreement as well because it would become a condition of the
conditional use.
The request is to remove 300,000 cubic yards of dirt from this
property. And the way you get to the property -- do we have an
exhibit that shows the -- all right, here we go.
You would go down Golden Gate Boulevard to 10th Street
Southwest, and then you would head south on 10th Street. And for a
very brief period, you would get on Frangipani, and then you would
take Dove Street to what has been called Fawzy, but I guess Bautista
(phonetic) Agricultural Avenue, to another unnamed road that would
take you directly to the property.
Originally we had talked about using Tobias, which is -- it's a
private road, but it's much -- it's been improved by your county staffto
access utility well sites. But the neighbors didn't like the idea of us
using Tobias because there were more residences on Tobias, more
children on Tobias. So we worked out more access through the
Frangipani Association, and they are -- again, we entered into an
agreement with them for access.
We have not heard any objections from our neighbors. There
was -- recently Mr. Fawzy was out 011 site. The site is already cleared.
The 15 acres was cleared pursuant to an ago clearing permit.
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i\geilda item NO.1 '3K3
~"br"ary 24, 2009
October 23~14;f1607
He was out there -- since he's allowed to remove 4,000 cubic
yards from the three individual parcels, he was in the process of trying
to get started. He -- because 4,000 cubic yards isn't very deep, he
never did actually hit any rocks to stabilize the roads. So he tried to
stabilize the roads through another means. That didn't work.
Some of the neighbors became upset by that. He has gone out
there and he has rectified that situation. He has stabilized the roads. I
think we've addressed the neighbors' concerns, and that's why I spoke
to Mr. Bower because he says we have an agreement. I said, Mr.
Bower, I want to make sure that that agreement is part of the
conditions so you'd never have to worry about having to enforce it
yourself. You'll have -- you'll have the county behind you to enforce
that agreement.
So I think we have rectified that -- that situation. I'm not aware
of any objections, other than one of the environmental representatives,
Nancy Payton, attended the Planning Commission and objected. I
don't think she's objecting to the aquaculture itself.
I know Nancy can speak for herself, but it's the removal of the
fill. I think she'd like to have the fill stay there in case the aquiculture
operation ever ceases.
There was some discussion about, were we going to be
improving the roads beyond what's already there. We're not
improving the roads beyond what's already there. We will stabilize
them for the people who are living on those roads anyway.
So the only objections I've heard really are, is the concern that we
were somehow going to expand the roads that are already out there
beyond what they currently are, and the removal of the dirt.
We have met all of the conditions of the conditional use
application. Your staff is recommending approval ofthe conditional
use. We deadlocked at the Planning Commission. We spent a lot of
time at the Planning Commission discussing the actual fish operations,
the digging of the lake. We spent very little time on the actual removal
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Agenda Item No. 16K3
February 24, 2009
October 23~~41,7t067
of the dirt.
I think we persuaded the Planning Commission that Mr. Fawzy
knows what he's doing. He does intend to operate this as a fish farm.
We have offered -- and I see it as one of your staff conditions --
that Mr. Fawzy not be allowed to withdraw any of the revenue from
the removal of the fill other than to reimburse himself for expenses
incurred in constructing the fish farm to show you all in good faith
that he really does want to be a fish fam1.
I think there were some people on the Planning Commission and
there's some people in the general public that think this is a ruse. I've
heard people say to me, this is nothing but another Jesse Hardy
situation. This is nothing -- this isn't anything further from a Jesse
Hardy situation.
And when Wayne and I got involved in this, I said to Mr. Fawzy
-- because that was fresh in my mind -- how do I prove to the
commission that this is not just a fill pit? And we came to the thought
that if we put all the money in escrow, we reimburse him for expenses,
we get up and running, and then if there's any money left over at the
end of the day, he can have the money.
If there's not any money left over at the day (sic), then he's
covered his expenses to build the fish farm, which is originally what
he intended to do anyway.
So I think we were able to persuade the Planning Commission
that this is really a fish farm and not a fill operation. Our neighbors
are not objecting to this. Fish farming is a use on the property.
We believe we've met all the criteria to be granted the conditional
use, and we're requesting that you follow your EAC's
recommendation, which was to recommend approval of the fish -- of
the conditional use.
And with that, I'll end my presentation. We're available to answer
any questions you may have regarding the operations of the removal
of the dirt for the fish farm, if the commission feels like we need to get
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Aqenda item No. 16f<'3
, February 24. 2009
October 2J~2J.;~e3t
into those discussion.
CHAIRMAN COLETTA: Okay. Before we go to the
commissioners, I just want to remind anyone that hasn't been through
this process before with us, if you wish to speak on the subject, there's
speaker slips out in the hallway. Normally we require you to have
them filled out to turn in before the subject is brought up, but I'll allow
you, if you still want to talk about the subject before the commission,
you have three minutes to do so.
If you go out and fill out one of those slips there and turn it in to
Sue Filson over here at the desk -- Sue, please raise your hand way up
so they can see you -- we'll be more than happy to put you on the
speaking agenda.
COMMISSIONER HALAS: Chairman, you also have to have
them sworn in, too.
CHAIRMAN COLETTA: That's correct, if you haven't been
sworn in yet and you want to speak, just before that time that we call
up the speakers, we'll give you an opportunity to stand at that time and
be sworn in.
Thank you very much, Commissioner Halas.
And with that, we're going to go to Commissioner Henning, then
Commissioner Coyle for questions ofMr. Yovanovich.
COMMISSIONER HENNING: Mr. Y ovanovich, what has taken
place on the property now? I'm unclear.
MR. YOV ANOVICH: That's closer in view. This is not -- this
is January '07. Since January of'07, we've gotten the ago clearing
permit for the property, so the 15 acres has, in fact, been cleared
pursuant to the ag. clearing permit.
COMMISSIONER HENNING: Was those -- that was vegetation
hauled off site?
MR. YOV ANOVICH: No, it was left on site, and it will be
burned.
COMMISSIONER HENNING: Okay. You know, I'm confused.
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Agenda Item No. 16K3
February 24, 2009
October 2Ji1~;'2'603j
Some of the residents down there seen a lot of extensive truck traffic
going in and out of the property. Is it going to this site for activities?
MR. YOV ANOVICH: I don't know what you're referring to as
far as extensive. We have had trucks going to the site to do the
clearing. We have also had the -- an excavator come out to the site
and remove a little bit of fill but also do some digging on site but not
removing beyond the legal limit of the 4,000 cubic yards.
There's three parcels, and we actually haven't removed all of
what we could because we realized we were having problems
stabilizing the road. So we stopped, we have since stabilized the road,
and will not remove anything further until we get through this process.
COMMISSIONER HENNING: Okay. Thank you.
CHAIRMAN COLETTA: Okay. Commissioner Coyle?
COMMISSIONER COYLE: Mr. Y ovanovich, you said
something about taking all the revenues and escrowing them.
MR. YOV ANOVICH: Yes, sir.
COMMISSIONER COYLE: The staff has mentioned the profits
from the excavation would be escrowed. Are we talking about
revenues or are we talking about profits?
MR. YOV ANOVICH: We were going to put all of it, every
dime we received, all the revenue, in an escrow account; whoever the
escrow agent would be would then pay the bills.
COMMISSIONER COYLE: I'll volunteer.
MR. YOV ANOVICH: I was hoping you would because I didn't
want it. But they would then pay the costs for permitting to date from
those revenues and the costs to excavate the ponds to buy the cages
needed for the operation, and all the other operations out of that, we
would get up and running, and if there was any money left at the end
of the day, then that money could be released to Mr. Fawzy.
We didn't want people to think that he was just going to go ahead
and, you know, dig a hole and run away with the money and never
build the fish farm.
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i'\genja item No. lor,3
F sbruary 24 2009
October 23'~~Zl~~LOb-7
COMMISSIONER COYLE: What happens if we get to that
point and all of the rock, or the excavation material, has been removed
from this site --
MR. YOV ANOVICH: Yes, sir.
COMMISSIONER COYLE: -- and the escrow agent is holding
all of the money associated with that and then something happens
beyond Mr. Fawzy's control that says, you know, you can't do this, or
you can't make a go of it, it's a failure, or there's no market or
something of that nature; what happens under those circumstances?
We've got a big hole in the ground, and we've got an escrow
agent holding Mr. Fawzy's money. How do you solve problems like
that?
MR. YOV ANOVICH: Well, presumably, ifhe's up and running,
he's got a business plan that shows he's going to make money. You're
right, it may happen that for whatever reason he doesn't make money,
but that's the same situation whether he removes the fill or not. You're
still going to have the hole in the ground.
It makes no sense to then pay someone else to come onto the dirt
and fill that hole in. That's just another expense that you would have
to pay to fill in the hole. Why would Mr. Fawzy then spend the
money to fill in the hole?
And in fact, the hole serves a purpose. It actually will help from
-- with water management out in the area because it will be another
place to hold water that you're having flooding issues out in that area
anyway. So that hole will actually serve a water management purpose
even if the fill is removed.
COMMISSIONER COYLE: Okay. Thank you.
CHAIRMAN COLETTA: Commissioner Halas?
COMMISSIONER HALAS: I have the same concerns as
Commissioner Coyle does if somebody's holding the proceeds for the
selling of this dirt and that's what's going to take place here, and the
fish fann fails, then are \ve going to take those proceeds and fill the
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Agenda Item No. 16K3
February 24. 2009
October 23'~Vl~126ff7
hole back up? Because this is sending lands, is what we have here.
MR. YOV ANOVICH: Right. You see -- and we keep -- we're
getting back into the issue of, is the fish farm an allowed use under the
Comprehensive Plan and the Land Development Code, and the
answer's yes, okay.
So the digging of the hole can occur. We don't have enough area
to store the fill on site to make this a profitable venture. He's going to
have -- he needs enough lake area to have enough fish to make it
work, so he's got to remove the fill.
If he could store the fill on site, he could still dig the hole, so
you're still going to have the fish farm there regardless. And whether
it fails or not, there's no guarantees that anybody's going to come
along and just push that dirt back into the hole.
COMMISSIONER HALAS: How many fish farms do we have
like this in South Florida that are out in the middle of nowhere and
somebody has an aquaculture where it's a gravel pit?
MR. YOV ANOVICH: I have no idea.
COMMISSIONER HALAS: No? Okay.
MR. YOV ANOVICH: I have no idea. And what I'm trying to
do and what Mr. Fawzy's trying to do is provide assurance that you're
not getting a gravel pit. You're getting a fish farm, and that's why he's
willing to put all the money in an escrow account.
COMMISSIONER HALAS: It's interesting. I did some research
over the weekend, and it's kind of unusual that I do any research over
the weekend. But basically this is from the Southern Regional
Aquicultural Center, and they're basically saying that because ofthe
small size of five to 20 acres, many catfish farms, these businesses
have high production costs compared to the more efficient farms of 50
acres or greater located in leading catfish producing states.
The large efficient farms are in Mississippi, Alabama, Arkansas,
and Louisiana. It doesn't say anything about being in Florida. And
yet they're saying that anything under 20 acres is basically an area
Page ] 24
/..-genda item ~~o. 1 GK3
Febrcary 24, 2009
October 23~:r4~~D67
where there's high production costs, and I don't think he's got a market
that he can sell these to immediately, a clearinghouse or a fishing
place to sell his product.
The other thing that I'm concerned about is, this parcel is
basically located in a water area. It's a W3 groundwater protection
zone. And I think under policy 3.1.1.3, Conservation/Coastal
Management Element, states that such zones conditional uses shall be
granted only in extraordinary circumstances and where impacts of the
development will be isolated from the aquifers. I can't find where this
is an extraordinary circumstance here.
MR. ARNOLD: Hi. I'm Wayne Arnold. I'll try to take a shot at
answering that. That was brought up at the Planning Commission
hearing, and I think your executive summary mentions that as well in
the findings, and your staff concluded that, one, that the extraordinary
circumstances are for those uses that require conditional use under
your wellfield protection zone standards in the LDC, not general
conditional uses in the agricultural zoning district.
The other thing I would offer to that is that the other earth mines
that you have authorized in this area are within the same wellfield
protection zone, and those are much, much deeper and much larger
operations than we're proposing.
COMMISSIONER HALAS: But my concern is, the -- as you
raise fish in here, the effluent effect of what the fish leave behind may
have effect with our water -- with the groundwater table in this area,
and I have some real concerns about that, plus this is basically being
located in a NRP A area. And why do we want to dig another hole,
and if something fails, then all we have is a big open hole in a NRP A
area?
MR. ARNOLD: Well, I guess the short answer to that is, your
Comprehensive Plan allows the farming operation to be there, and you
don't regulate -- if this were a cattle pond or some sort, you wouldn't
be regulating that.
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Agenda Item No. 16K3
February 24,2009
October 23~!'4~'L6f}7
The real issue -- and this is something we've struggled with from
day one. The real issue is hauling more than 4,000 cubic yards of dirt
off ofthe property. It's a very unique conditional use that you have in
your code because you're allowed by right to take, in this case, 12,000
cubic yards off of the entire site. To do more than that, we need to ask
your permission to do that, and look at the impacts of the dirt removal
related to the criteria for conditional uses. And we believe we've
satisfied those.
I think the EAC had a very healthy and lengthy debate about the
same issues of water quality, et cetera, and they found there to be no
concerns due to the operational characteristics of the facility.
And I think, as Rich pointed out, we got into a lot of operational
discussions that really aren't germane to the conditional use request. I
understand they're obviously related, but the real request is the
removal of more than 4,000 cubic yards of dirt off the site.
MR. YOV ANOVICH: And to get to water quality issues, there
are best management practices that we must follow that have been
adopted by the state that address every one of those concerns. There's
a limitation on the amount of fish we can have in the lake to make sure
that the quality is appropriate, it doesn't hurt the groundwater.
So all of that is regulated by the state through best management
practices, and we'll have to meet all of those, and we spent a lot of
time with the EAC addressing that, and they were all comfortable we
didn't pose any threat to the groundwater or anybody else.
CHAIRMAN COLETTA: Let's go to Commissioner Fiala, then
we'll come back to you, sir, if you should have more.
COMMISSIONER HALAS: All done.
COMMISSIONER FIALA: Well, I had a number of questions,
one of them was in direct relationship to Commissioner Halas's. I
wanted to know how this would affect the wells in the area being that
everybody's on a well.
MR. YOV ANOVICH: Well, we don't -- the closest residence to
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~ Feb'uary 24, 2009
October 23'~12j.;'2'601
us is 3,000 feet, so --
COMMISSIONER FIALA: Yeah, I know that.
MR. YOV ANOVICH: -- we're not going to have any impact on
their wells and we're not going to have any issues.
COMMISSIONER FIALA: No impact on the aquifer, you're
saying?
MR. YOVANOVICH: No, nope.
COMMISSIONER FIALA: It said in here that we were
supposed to get a report about the Big Cypress fox squirrel, and we
never saw a report, but now they've already cleared the land without a
report even coming here to us. Where is that report?
MR. YOV ANOVICH: We cleared pursuant to the ago clearing
permit that was issued by your staff, so we got --
COMMISSIONER FIALA: Where is the report?
MR. YOV ANOVICH: It was given to staff. Jeremy prepared it,
and he can tell you. He can address that.
MR. STERK: Jeremy Sterk, Davidson Engineering. Yes, a
preconstruction or pre-clearing fox squirrel survey was done, and the
results of that were given to the staff.
COMMISSIONER FIALA: What were the results?
MR. STERK: None were found.
COMMISSIONER FIALA: Okay. There were -- it also
mentioned panthers and listed species, and we'll get into that later on,
I'm sure. But how deep are you digging?
MR. YOV ANOVICH: Twenty feet.
COMMISSIONER FIALA: Twenty feet. How deep does the
lake need to be to grow native fish?
MR. YOV ANOVICH: Well, we're doing it in cages, and we're--
COMMISSIONER FIALA: Yes, I know, and a thousand fish per
cage, right?
MR. YOVANOVICH: Yeah, the cage is 10 feet, okay. So with
the fluxation of the water during the dry season and the wet season,
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Agenda Item No. 16K3
February 24, 2009
October 23'~~'4~'1Ob7
during the dry season we'd have about 12 feet of water in that 20-foot
lake. So we need -- that's why we need to go 20 feet because of the
la-foot cage, to have adequate water within the -- within the cages for
the fish to grow and flourish.
COMMISSIONER FIALA: Now, all of the stipulations that I
find in here, including the roads and no dust on them, et cetera, et
cetera, say, for instance, Mr. Fawzy decides he wants to sell the
property, whether it be halfway through or tomorrow, I would like to
state on the record that all of these stipulations must follow with the
land.
MR. YOV ANOVICH: And that's why I suggested adding those
stipulations to the conditional use so there could be no questions that
someone says, well, that was Mr. Fawzy's agreement. I bought the
land and I don't have to live up to that. It's going to be part of the
conditional use so that nobody -- no successor can hide from those
obligations.
CHAIRMAN COLETTA: Okay. And now -- thank you. I do
have some questions myself.
We've heard numerous discussions -- and I know the Planning
Commission, especially Mark Strain, was very, very concerned about
the possibility of fish feces -- I said that right -- contaminating --
COMMISSIONER HENNING: It's fish poo.
CHAIRMAN COLETTA: Okay. I'll use the -- Commissioner
Henning's description.
COMMISSIONER FIALA: No, no, no.
CHAIRMAN COLETTA: No, fish feces. Okay, Commissioner
Fiala overruled him, which is good.
Going back to that, I know this has been really a bone of
contention, and I know that at some point in time in the past we talked
about a related subject, human waste and how it's handled and what
the impact was to the canals and also eventually Naples Bay.
I remember the discussions many times, and at that point in time
A.genda Item No. 161<3
February 24, 2009
October 23'!!2'42'16!}'7
,
I remember we called on Dr. Colfer to be able to offer some opinions
on this. And I know you've already got a finding from water
management, but I was wondering -- I don't know if you were here for
this reason or not, Dr. Colfer.
DR. COLFER: No, but I'm happy to help you ifI can.
CHAIRMAN COLETTA: Would you mind talking about this or
testifying on this.
COMMISSIONER FIALA: She's not sworn in.
CHAIRMAN COLETTA: Y es. You heard the discussion.
There's considerable concern over this farming operation -- and we'll
have to swear you in if you haven't been at this time. I don't think you
have been.
But before you do, is there anybody else in the audience that's
come in since we started that wants to participate in this by giving
public testimony, I'll need you to also stand.
(The speakers were duly sworn.)
CHAIRMAN COLETTA: Okay, thank you.
MS. FILSON: That gentleman's not registered to speak, so he
may want to register.
CHAIRMAN COLETTA: That's okay. It was good practice.
Dr. Colfer, what is your particular spin on this? In other words,
you're going to have a lake that's 20 feet deep, the confining layer is
probably another, what, 20 feet down below that. You're going to
have a commercial operation that's going to probably generate a
sufficient amount of fish feces.
COMMISSIONER HENNING: Poo.
CHAIRMAN COLETTA: Is there any -- is there a possibility
that this could be detrimental to the aquifer?
DR. COLFER: Well, we'd have to kI10W which aquifer he's--
you know, would be -- where the confining layer was and which
aquifer he was going into. So you're concerned about the fish feces,
not any human feces associated with the project --
Page 129
Agenda Item No. 16K3
February 24, 2009
October 2:f.9l~;2:oe=r
CHAIRMAN COLETTA: That's correct.
DR. COLFER: -- is that correct? We don't build septic systems
for fish feces. So I mean, it would go where it was going to go, which
is, you know, seep into the land.
You know, now usually there's some filtration that goes on when
it does that. But we haven't had a chance to really look at this. I'd
have to take it back to staff. Can't help you today.
CHAIRMAN COLETTA: I just thought I'd ask because I always
consider you the expert on all these things.
Meanwhile, going back to Mr. Y ovanovich. Who was it that
made a determination on this? What agency ruled on this already on
this particular issue? Because this is a big issue for the people that
live out there, and also the people inland, too, that depend on this for
their water source.
MR. YOV ANOVICH: We go to the Florida Department of
agriculture, and they are the ones who issue the license, and they also
are the ones who issue this nice thick document entitled "Aquaculture,
Best Management Practices and Rules." So they have adopted very
specific guidelines as to how you dig the lake, how many fish can be
in the lake, to make sure that there is not overabundance of feces or
poop.
COMMISSIONER HENNING: Poo.
MR. YOV ANOVICH: Poo?
COMMISSIONER HENNING: Poo.
MR. YOV ANOVICH: Poo -- in the water to find its way into the
groundwater. So there are very specific regulations. And we spoke
about that in great detail at both the Planning Commission and the
EAC, and I don't think any ofthem at the end of the day -- well, the
EAC certainly wouldn't have recommended approval if they had
concerns about that.
CHAIRMAN COLETTA: Well, in getting right down to it, the
thing you're before us for today is not to dig the ponds and not the
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;:,gaw::a ;tem [\10. '1 Cf<.3
rs!xuary ~i4. 20U9
October 23~2';:(i6(;7
clearing of the land and not the ability to be able to do what the law
allows you to do, which is guaranteed to you under the Right to Farm
Act. You're here today to get a permit to be able to transport the fill
off site.
MR. YOY ANOYICH: Correct.
CHAIRMAN COLETTA: And you met with, I hope, all the
local neonle that were there. You've seeked out the advice and
. .
reached an agreement with the Frangipani Property Owners
Association, and that's all good -- all well and good, but there's some
things that still concern me.
When you're going to transport the fill off site, you're going to be
affecting people as far as the wear and tear on the roads.
Now, I know you pay a gas tax and all that type of stuff, and I
know we're kind of limited what we can do as far as fees and all that,
but there's a couple of things. One, the fill you're going to take off the
road -- now, you say stabilize the road. Now, you know, you say not
improve it, stabilize it. Now I'm really confused because I thought the
people out there that were going to own property along these roads
were going to get a direct benefit from your operation with a better
road than they started off with.
MR. YOV ANOVICH: And they are. If you've driven out there
-- and I don't know if you have. I've only been out there once, and it's
very sandy. The rains come, those roads wash out. What we'll be
doing is putting a -- basically putting the limerock base out there so
that there won't be wash-outs.
CHAIRMAN COLETTA: Okay. So you are improving the
roads?
MR. YOV ANOYICH: Yes. We are not widening the road. We
are improving the quality of the road as it currently exists in its
configuration.
CHAIRMAN COLETTA: Now, let's go back to the width of the
road. Generally these roads that go through the properties out there __
Page 13]
Agenda Item No. 16K3
February 24, 2009
pan~.20"'6Q;3
October 23-T4:LI u7
and they just go through the sand -- and they're various widths. I
mean, I've seen before they tried to avoid a pothole in the road and
they'll -- suddenly the road will grow on the right or the left to a
tremendous width.
Now, when you get all done, is the road you're going to build
going to be of sufficient size to be able to accommodate these trucks
going one direction and private vehicles or trucks going in the other
direction?
MR. YOV ANOVICH: We will have to coordinate our own
trucks to make sure there -- it will be -- the answer to your question is,
we're going to have to coordinate those efforts, and we've worked with
the neighbors on that. It's not going to be two-lanes width -- in width
to allow trucks to go by. We're going to have to -- one truck's going to
have to stop, wait for another truck to pass by, and then come forward.
CHAIRMAN COLETTA: Is there sufficient space there to put in
two lanes? Are you kind -- are you prohibited by some law?
MR. YOV ANOVICH: One of the objections we've heard loud
and clear from the environmental groups is, we don't want you to
make this wider. Is there space to make it wider? Yes. But in
deference to their concerns, we have agreed to leave it --
CHAIRMAN COLETTA: So what we're going to have is a
situation that will hold one truck at a time with some pull-offs along
the way for trucks coming in, going out --
MR. YOV ANOVICH: Right.
CHAIRMAN COLETTA: n to be able to move to one side or
the other. How is this situation compared to what already exists?
MR. YOV ANOVICH: They probably deal with that now, you
know, with what's out there. They're not very wide roads.
CHAIRMAN COLETTA: I'm just trying to see what the benefit
is, and I'm having -- I'm sorry.
COMMISSIONER FIALA: Nick Casalanguida might have
something to add.
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Kgenda item No. 15K3
Febrcary 24, 2009
October i3~2:f,oi6D7
CHAIRMAN COLETTA: Yes, Nick. I'm sorry I wasn't -- I
wish I noticed you back there.
MR. YOV ANOVICH: We're talking about the private roads
now, correct, Conunissioner?
CHAIRMAN COLETTA: I'm talking about private roads.
MR. YOV ANOVICH: Okay.
MR. CASALANGUIDA: How you are? For the record, Nick
Casalanguida, Transportation.
On the monitor you can see that down to the site there isn't any
homes for a certain amount. A recommendation might be where the
first residential house is, out to the private roads, that they maintain it
approximately 20 feet wide with about six inches of limerock base
rock, and that way there is sufficient width for people who live in that
area to benefit from that road, but you wouldn't be expanding the road
farther south to the project.
CHAIRMAN COLETTA: I hear what you're saying, but I also
hear the underlying current here that we're not going to do anything to
encourage anyone else to be able to build in that area whether they
have property or not. And this has been an attitude that I've never
agreed with the conservation movement. They've basically bankrupt a
lot of people and drove them out of the southern Estates with the
particular attitude of steath (sic) of land.
Through denial of the services, the property went down to
nothing in value, and people were able to pick it up on the tax sale,
and I'll never be a part of that. I never was and I never will be again.
So if we're going to do anything to benefit these people, I don't
care what the conservationists say in this particular thing. I'm here for
the dam people that live out there and own the land. I want to see
some sort of benefit that's going to benefit these people. Yau can play
footsies with them all day long, but you still have to deal with me. I'm
sorry. Did I get a little rambunctious there?
MR. YOV ANOVICH: No, no, and we certainly--
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Agenda Item ,"0. 'loK3
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Da;w.31.of ~
October 23-L'4, 20u7
COMMISSIONER FIALA: Yes.
MR. YOV ANOVICH: We don't have any objections to what
you're saying. What we are trying to do is balance the concerns we
were hearing from the environmental groups. We don't have an
objection to doing exactly what Nick said, 20 feet in width, making
sure the roads are stabilized, and if that -- if that's what it takes to
benefit the property owners -- because remember, this is a temporary
use.
CHAIRMAN COLETTA: Right.
MR. YOV ANOVICH: In 18 months we're done. I mean, we're
in and out and you'll have a fish farm, you know. And that's -- and
there'll be no -- virtually no traffic related to the fish farm, a car or two
a day.
So we don't have any objections to doing what you're requesting,
but I'm having a little trouble balancing, you know, what others are
saying or are reasons for you to tell us no.
CHAIRMAN COLETTA: I understand, Mr. Y ovanovich. Now,
there's another question, too. I realize this is a limited operation and I
realize also the intent is just to be able to move the dirt offthe
property, that it is going to generate a profit, which is fine. I mean,
that's the American way, you know; you benefit from the use of your
land in some way.
However, with that said, we've had a couple of instances now
where we've had actual pits go into place, and in order to compensate
the county for the county roads that they're on, there was a certain fee
that the developer agreed to pay per load. I'm not too sure what it
was. Four dollars?
MS. ZONE: One.
CHAIRMAN COLETTA: Well, I thought I'd give it a try.
Okay. You already know the answer.
MR. YOV ANOVICH: I don't know the exact answer. I know
it's not that.
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A.genGa item No. 16f<3
February 24,2009
October 23~!4:;2i6b7
CHAIRMAN COLETTA: You gave some thought to this, you
know, that you are going to -- you are going to take and you're going
to impact some of those rural roads that are in pretty dismal condition
the way it is. What can we do to be able to come up with something
that would help to compensate us? We're going through a very tough
time budget-wise trying to cover our backside on these roads.
MR. YOV ANOVICH: Didn't Florida Rock give like 50 cents a
truck or something?
CHAIRMAN COLETTA: That was the old dollar, the old
money. Now inflation's taken place since __
MR. YOY ANOVICH: So you already knew the answer to the
question.
CHAIRMAN COLETTA: I don't know. Mr. -- Nick, you got a
MR. YOY ANOYICH: Is it a dollar a truck, Nick?
MR. CASALANGUIDA: It was a dollar a truck.
COMMISSIONER FIALA: It was a buck a truck.
MR. YOY ANOYICH: A dollar a truck?
CHAIRMAN COLETTA: A dollar a truck?
COMMISSIONER FIALA: Buck a truck.
MR. YOY ANOYICH: I actually wasn't prepared for that
question, but I was just told a dollar a truck. If that's what Florida
Rock did --
MR. CASALANGUIDA: Ten dollars a truck.
MR. YOY ANOYICH: No.
COMMISSIONER FIALA: The theme is a buck a truck.
MR. YOY ANOYICH: Buck a truck.
MR. CASALANGUIDA: And we've spoken to Tindale Oliver,
our impact fee consultant. He said there is justification of that because
they don't pay impact fees, and we'll be bringing that to the board in
the next six months, so we'll have an actual impact fee ordinance that
applies to that heavy vehicle surcharge that comes forward.
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October i3':'Z4',3Zb'th
CHAIRMAN COLETTA: Yeah. But in lieu of the fact that we
haven't approved of that yet, can we have something that would be
able to weigh in if we don't approve it?
MR. YOV ANOVICH: Yeah. And if you come up with another
fee, can I have a credit for the dollar a truck that I'm paying?
CHAIRMAN COLETTA: Sure, I don't have a problem. Of
course it's got to be a decision made by more than one commissioner,
but at least we got the subject -- we broached the subject and we can
go forward from there.
So, you know, I'm going to have to listen to everybody's
testimony out there, the people that own land, the people that already
have residence out there. I'm going to be listening very carefully to
what they have to say. I've got a feeling that if this is done right,
there's going to be a net benefit with the fact that this only is going to
go for how many months again?
COMMISSIONER FIALA: Eighteen.
CHAIRMAN COLETTA: Eighteen months?
MR. YOV ANOVICH: You've capped us at 18 months.
CHAIRMAN COLETTA: Yeah. So I mean the --if they can get
a benefit in relation to the amount of time they have to endure what's
going to take place, there may be something here that can be offered.
I've taken enough time. I'm going to go to Commissioner __
who's next? You've been watching, haven't you? Commissioner
Fiala, then Commissioner --
COMMISSIONER FIALA: No, I went before.
CHAIRMAN COLETTA: Okay. Commissioner Halas?
COMMISSIONER HALAS: Yeah, just to cut to the chase here.
I have some real concerns where this mine is n where you want to put
this fish farm. And I think it's located in the \wong area. It's in a
sending area. It's in a NRP A sending area. And I have some concerns
about our groundwater in regards to contamination offish feces, okay,
if this thing continues on, and I feel that water is a very precious
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>::;a"" ~4"1h'N
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resource for this county.
So and -- that's under policy 3.1.1.3 Conservation/Coastal
Management Element. A.nd I don't believe, as I said earlier, that this
is an extraordinary circumstance whereby this needs to go any further
as far as a conditional use, so that's where I stand on this.
CHAIRMAN COLETTA: And since I don't have another light
on, I'm going to take it next.
Mr. Weigel?
MR. WEIGEL: No, I'm just looking your way.
CHAIRMAN COLETTA: No, I know you are, sir, but I'm
looking at you.
MR. WEIGEL: Okay.
CHAIRMAN COLETTA: You just heard Commissioner Halas
and his concern and his reason why, for rejection. Being that we have
no authority over farn1ing, would that be -- have legal justifications?
Are we leaving ourselves open for some legal action afterwards, if we
refused it based upon an element that was not up for consideration
today?
MR. KLA TZKOW: There's a distinction to be made between the
farming and the excavation. I think they're two separate things.
The petitioner keeps saying that what we're doing here is farming
and we need the excavation to get there, but you can look at it as, no,
what you're doing is you're asking us -- you need to excavate first, and
then when you're done with the excavation, you can farn1.
And if this area is such that it's located in a place that you cannot
excavate, all right, then you cannot get the fish farm. Do you follow
me?
CHAIRMAN COLETTA: No.
MR. KLA TZKOW: Okay. He's allowed to do agriculp..rre. He
can put up row crops if he wants, he can put up __
CHAIRMAN COLETTA: Right.
MR. KLA TZKOW: -- whatever he wants here.
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October ir-sr4',5zb'07
CHAIRMAN COLETTA: Right.
MR. KLATZKOW: What he's saying though, what I want to do
is I want to dig a hole and put fish in there.
CHAIRMAN COLETT A: Yep.
MR. KLATZKOW: Okay. But there's an argument to be made
that under the Comprehensive Plan, you cannot put -- you cannot
excavate in this area, so he can't get to his fish fam1 because he can't
excavate.
CHAIRMAN COLETTA: But is that what we have for
consideration today, the excavation or the --
MR. KLATZKOW: That's part of it, yes.
CHAIRMAN COLETTA: Okay, fine. That was my
misunderstanding. I thought the only thing we were able to consider
was the transporting of fill off site.
MR. KLATZKOW: No. I think -- I think you need to look at the
whole thing.
CHAIRMAN COLETTA: Okay, thank you. That's what I
needed. Okay.
Okay. We--
MR. YOV ANOVICH: Well, if! may. I find it -- it's interesting.
Sorry, I got distracted. What I find interesting is the county attorney
is saying that I need to move the dirt to get my excavation. Well, I
need to move the trees as well, and there's no regulation at all in the
county. If I wanted to -- if I wanted to remove the trees off site and
take them somewhere else, I don't need any approval from the county
to prep the land for the fish farm.
So if I want to remove the trees, I dig the hole and I stockpile all
the fill. I can dig the hole, stockpile the fill, and I'm not regulated by
the countv.
-
It's only because the county won't let me -- they'll let me remove
trees by truck, but they won't let me remove the dirt by truck that now
I am stuck in this situation. And it's not a Compo Plan issue; it's a
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L.genda I~em ~~o. 'j 6K3
F8br<-;ary 24. 2009
October 23"-'24,62oth
Land Development Code. Because the Compo Plan doesn't -- isn't
sending me here. It's the Land Development Code that's sending me
here.
So under the Compo Plan, we have every right to dig the fish
pond. It's the removal of the fill and it's the county's regulation on the
removal of the fill that's prohibiting the farming operation, because he
cannot dig the aquiculturallake without the county's blessing, and
quite honestly, I'm not even sure the county can do that under the
Right to Farm Act.
But we're so far along in the process that we may as well take it
to the end to see if the county will address that situation and grant him
the right to remove the fill. So I think the issue today is, it's not
whether we can dig the hole. We clearly can do that. County can't
stop us from digging the hole. It's, can we remove the dirt? And
we've met the criteria for the removal of the dirt.
And I think we should focus on that because there's no testimony
to the contrary about the removal of the dirt, and we seem to be
getting into the operations of the hole, because we can dig the -- we
can dig the lake.
CHAIRMAN COLETTA: Okay. Thank you. I don't see any
other lights, so why don't we do this, we'll have staff make their
presentation and then go to the speakers. And we'll probably call you
back later, Mr. Y ovanovich.
MR. MOSS: Good afternoon, Commissioners. John David Moss,
Department of Zoning and Land Development Review.
The proposed excavation as conditioned is consistent with the
GMP and the LDC. The NRP A overlay area does permit excavation
as an accessory use if it's a conditional use. They're also allowed to
remove 4,000 cubic yards of fi!l from the site. It's going over that
threshold that is requiring them to get this conditional use. So if they
wanted to stockpile it on the site, they wouldn't need this CU to do
that.
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Aoenda Item No. 16K3
~ February 24, 2009
October ir-'2'4',72mh
I would also like to mention that the Environmental Advisory
Council heard this petition on June 6, 2007, and unanimously
recommended approval subject to the conditions which have been
incorporated into the conditions of approval attached to your
resolution in the executive summary.
The CCPC heard this petition on August 7th -- excuse me --
August 2, 2007, and voted 4-4 to forward the petition without any
recommendation of approval, and the commission members who were
opposed to the application denied it for six reasons.
First they asserted that the sending lands do not permit
excavation; however, it's staffs opinion that the sending lands do
permit aquaculture and the excavation is necessary for the creation of
the proposed aquaculture facility.
Number two, that it was inconsistent with policy 3.1.1.3 of the
Conservation and Coastal Management Element of the GMP, which
states that continual uses should only be granted in extraordinary
circumstances. The CCP (sic) felt that this was not an extraordinary
circumstance; however, it's staffs position that this provision was
inaccurately applied since the policy does not concem all conditional
uses, only these conditional uses that are referred to in policy 3.1.1 G
and H, of which excavation is not mentioned.
Number three, inconsistency with policies 1.2 and 2.3 of the
natural groundwater aquifer recharge subelement -- of the public
facilities element which require the protection of recharge areas from
activities that could degrade the quality of groundwater as provided in
policy 3.1.1. Again, the proposed conditional uses for an excavation
which, as mentioned, was not a use cited in po I icy 3.1.1. Furthermore,
the excavation is necessary to enable the permitted aquiculturaI use.
The fourth reason was its inconsistency with the North Belle
Meade overlay requirements of the future land use element, which
require that any new roads within the sending lands be designated -- or
excuse me -- be designed with aquatic species crossings, small
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October 25'-'24', :2007
terrestrial animal crossings, and large terrestrial animal crossings
pursuant to Florida Fish and Wildlife Conservation Commission
criteria.
And staff has addressed that issue by including a development
condition in the development condition attachment to the resolution
requiring that they provide the requisite wildlife crossings.
The fifth one was the location of the project within the panther
primary merit zone, and the Florida Fish and Wildlife Conservation
Commission has stated that the project is not likely to affect the
Florida panther; nevertheless, staff has included the condition that the
applicant be required to seek consultation for mitigation from wildlife
agencies before the first development order.
And finally, there was uncertainty about the applicant's degree of
commitment to actually construct an aquaculture facility, and as
previously mentioned, the applicant at the Planning Commission
hearing offered to escrow the funds generated from the excavation into
an escrow account. They didn't specify who would be the holder of
the funds and, of course, because the details haven't been worked out,
this hasn't been incorporated into the development conditions before
you. It's -- at this point it's still just an idea.
And that's all I have. Thank you.
CHAIRMAN COLETTA: Thank you. Stand by for questions in
the near future. At this point in time we're going to go to the speakers.
How many do we have, Ms. Filson?
MS. FILSON: I have three speakers, sir. First is Nancy Payton.
She'll be followed by Brad Cornell.
MS. PAYTON: Good afternoon. Nancy Payton, representing
the Florida Wildlife Federation. We're opposed to the conditional use
permit that's under discussion today.
There are only two aquaculture operations that I've been able to
determine have been proposed in Collier County. One was Jesse
Hardy's, that was in sending land; and now the petition that you have
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Agenda Item No. 16K3
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""<11',;)0 of co
October 2j-~4,'2007
before you today that is sending land, which I find a coincidence that
these aquaculture operations only seem to be able to make a go of it in
sending lands.
I say once a philosopher, twice a fool. I agreed to allow Jesse
Hardy to go forward under certain circumstance. He didn't honor
them. I'm not going to do that again today.
Mr. Fawzy bought this property in 2005 after the rural fringe
overlay was adopted. He knew what was allowed or should not be
allowed in that area. Yes, aquaculture is allowed, but you don't have to
be an enabler. You don't have to approve the mining operation that's
going to take place for 18 months.
And he can store -- he can dig a pit and store on site or remove
4,000 cubic yards, I guess it is, and he can operate his operation in that
manner. He doesn't have to have a lake that's almost nine acres.
That's the issue here is the size of the lake, because he needs to haul it
off site to get the size lake that he wants or the fill that he wants.
Today is about a conditional use to haul up to 20,000 truckloads
offill through Northem Golden Gate Estates, or that's 40,000 trips
through sending land, NRP A land, designated for panther and other
listed species habitat protection. That was a result of a challenge to
your Comprehensive Plan that said, Collier County, you are not doing
enough to protect the Florida panther and other wildlife habitat.
I urge you to deny the conditional use on compatibility issues.
This is sending land, NRP A land. Building a new road to
accommodate 40,000 trucks is not compatible, and we worry about the
cumulative and secondary impacts of building that road and what it
should bring. And I think you do have to take that into consideration
in a compatibility issue.
If denied, Mr. Fawzy can still dig his pond, but he will just have
to store on site, and that's the way it is. And it's sending land. It
should be protected, and I think you have to be strong about sending
the message that NRP A and sending land, they're not ways toa
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- February ::24, 2009
October 23':"14,02007
circumvented those protections.
Thank you.
CHAIRMAN COLETTA: Thank you.
MS. FILSON: The next speaker is Brad Cornell. He'll be
followed by Greg Bower.
MR. CORNELL: Good afternoon, Commissioners. I'm Brad
Cornell, and I'm here on behalf of Collier County Audubon Society.
I want to raise the issue that the county has a strong obligation to
protect listed species under the Federal Endangered Species Act. It's
an obligation that we also share with the state rules of protecting listed
speCIes.
Weare concerned about impacts to Red-cockaded woodpeckers,
Big Cypress fox squirrel, wood storks, and panthers and gopher
tortoises.
I know the site has now been cleared, and I think that's
unfortunate. It was predominantly slash pine, flat woods, and
certainly was feasible to restore to usage by many of these species.
I'm also concerned -- Collier County Audubon Society is
concerned that this is mining masquerading as agriculture. It just
doesn't make sense, and I agree with Ms. Payton's comments
regarding that.
I also do believe that this undoes the purposes of the North Belle
Meade overlay and the sending category that it's in. It just doesn't
make sense to be digging holes in natural resource protection areas
and sending lands.
And I want to point out something about groundwaters. When
you dig a hole in the ground, you expose the groundwater. That
increases your evaporation rate. I think it makes logical sense, and
there's actually a St. Johns River Water Management District
document that points out that there is a 10 -- at least in that water
management district, there's a IO-inch loss of recharge when you
expose groundwater to air because of evaporation. It's hot, it's sunny,
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Agenda Item r,o. 16K3
February 24, 2009
October 23~~~12'b07
there aren't any n obviously any more trees on this lot, and that's
going to be a big impact to groundwater levels. They're going to be
lowered correspondingly.
I believe that actually the impact's greater here in South Florida
than it is in S1. Johns River Water Management District, but I don't
know what those figures are.
Also, I want to point out the 20-foot deep lakes pose the risk of
off-site wetland impact due to buried shell beds. This is a feature of
our former being under the sea. There are shell beds throughout the
landscape buried, and no one knows where they are until you dig
through them, and that -- if they're connected to wetlands, which
typically they are, you can drain a wetland because you're lowing
groundwater levels in the hole that you're digging, and that would
impact wetland dependent species like wood storks, which are in the
area.
Collier County Audubon Society recommends denial of this
conditional use pennit. We certainly agree -- if you are going to
consider approval, we certainly agree with the condition that you
require consultation with the Florida Fish and Wildlife Conservation
Commission and the Fish and Wildlife Service, the Federal Fish and
Wildlife Service, before any approvals for digging go forward. Thank
you.
CHAIRMAN COLETTA: Mr. Cornell?
MR. CORNELL: Yeah.
CHAIRMAN COLETTA: Forgive me. Something new that I
never heard before was about the shell beds.
MR. CORNELL: Yeah.
CHAIRMAN COLETTA: Is there examples around here where
people have made excavation pits and drained the wetlands? I mean,
is it something that's common to this area or is it just one of those
things throughout Florida and --
MR. CORNELL: I'm basing my comment on some studies that
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Agenda 11em !'~o. 1 GK3
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;;;a.o12 h'N
October 2.)-'2'4, luu7
were done around Corkscrew Swamp Sanctuary that actually
discovered shell beds when they were digging draining ditches for
agricultural uses in that area, Southeast Lee County, Northern Collier
County.
And it's a -- it's kind of like a porosity issue that the ground is
connected to these wetlands off site. And you can also see it when
you dig a ditch, like the Southern Golden Gate Estates has the six-foot
ditches. The effects can be felt as far as two miles away, and that's
one way that those effects are transmitted is through these shell beds,
but also just through the porosity of the soil itself.
But, yes, those are a feature. I don't know where they are
specifically; I don't think anybody does. But when you dig, you can
find them. And if you hit them, that connects to -- often connects to
wetlands, and --
CHAIRMAN COLETTA: Interesting fact. I appreciate you
sharing it with us.
MR. CORNELL: Sure, sure.
MR. YOV ANOVICH: Can I ask Mr. Cornell a question? Just
one question?
CHAIRMAN COLETTA: One question.
MR. YOV ANOVICH: Because you're the second public speaker
to say this is an earth mine masking as a fish farn1.
MR. CORNELL: Yes.
MR. YOV ANOVICH: What will it take for us to prove to you
that this is not an earth mine?
MR. CORNELL: Dig it in the receiving area.
MR. YOV ANOVICH: Well, that's not -- that's not -- tell me
what it will take to prove to you that this is not an earth mine?
Because a fish farm is an allowed use in sending.
MR. CORNELL: Leave all the fill on the site.
CHAIRMAN COLETTA: Okay. I think we got enough here
now, okay. Very interesting conversation.
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Agenda Ilem ~jo. 16K3
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October 23'~21t.~'1607
MS. FILSON: The next speaker is Greg Bower.
MR. BOWER: Good afternoon, Commissioners. My name is
Greg Bower. I'm the one that signed the letter that I think is part of
the application you have from the Frangipani Ag. Association.
I've talked with the applicant on many occasions. I live on the
comer of Dove Tree -- and I'm not sure what that road is called at this
point in time, the dirt road. But I have 1,320 feet that borders where
this truck -- these trucks will be passing. They have to stop right at the
comer of my property in order to head up Dove Tree and Fawshady
(phonetic) Agricultural A venue, and I'm right there in the comer of
Dove Tree on the left side -- on the west side, southwest comer.
I personally don't have a problem ifthe agreement that we
reached with the applicant is adhered to and is part of the application
that you have as far as fixing the roads. There's many places where
two cars pass very easily.
There was a home built across from me where we had a major
problem with trucking going up and down, 60 loads, shut the road
down completely. And the guy building the house had to spend
$5,000 to fill the holes in. So we have a concern about that, and we
thought we met that very well in the letter that I signed.
Most of the people that I spoke with on Dove Tree are in
agreement that if that is adhered to and there is someone on a daily
basis that can be contacted should there be a problem with the road
itself, then we would not have a problem with having the truck traffic
go up and down there.
Our interest is probably a little bit more selfish in the fact that we
would like an improved road there. I don't know about Mr. Fawzy's
fish farn1 or anything else other than that, other than the document that
I signed and that you all have in front of you.
CHAIRMAN COLETTA: We thank you for being here today.
MR. BOWER: Thank you.
CHAIR.MAN COLETTA: Okay, Commissioners? Close the
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Agenda item ~,jo. -; ;31<3
February 24, 2009
October 23~14;4f6b7
public portion of the meeting.
I don't see any lights going off. I guess there's got to be some
items for discussion here. Commissioner Henning?
COMMISSIONER HENNING: I have to get this clear. We've
got two different opinions about whether somebody that wants to do
fish farming can dig a hole in the ground or not without getting a
conditional use, and that needs to be straightened out.
MR. YOV ANOVICH: In my -- again, my humble opinion --
COMMISSIONER HENNING: I heard it.
MR. YOV ANOVICH: -- is we don't need any approval to dig
the hole. It's to remove the dirt.
COMMISSIONER FIALA: Here comes Susan.
MR. KLATZKOW: To answer your question, the Planning
Commission did go 4-4 on this, so that there was a disagreement of
opinion on this issue.
That are in a wellfield area. It's a special overlay. And under the
Growth Management Plan, you have to have extraordinary
circumstances before you can excavate there. That's the issue, not that
you need the conditional use to excavate, but the issue is whether or
not you can even do that -- whether or not you can dig there even to
begin with.
And the Planning Commission was 4-4 on that issue. Staff--
staff believes that you can do that, and I respect staffs opinion on this.
They're professionals in this area, but there is a difference of opinion.
COMMISSIONER HENNING: Did anybody swear in here?
MS. ISTENES: I swore.
COMMISSIONER FIALA: No, not swear at her. Have her
sworn In, you mean.
MS. ISTENES: I mean I was sworn in.
Susan Istenes. I just want to answer your question real quickly.
The conditional use is required to haul the excess material in excess of
4,000 cubic yards off the site. That's the only reason it's needed. I
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Agenda l1em No. 16K3
February 24,2009
October 2~~r,r,5tbo7
hope that answers it.
COMMISSIONER HENNING: Okay.
CHAIRMAN COLETTA: I'm sorry. I didn't know if you were
through or not.
COMMISSIONER HENNING: Yeah, no. We got that
straightened out. I mean, I just would have a problem for a bona fide
farming operation to have to get government permission under this
application. So that cleared it up for me.
CHAIRMAN COLETTA: Well, that's also the fly in the whole
ointment. You know, we have -- there's a Catch 22 -- 21, excuse me--
to the rural lands management areas when it comes down to it. You
know, you can say, no, we want your land to stay pristine. They come
back, they get a permit from the county for clearing and they clear the
whole thing for agriculture, and if we don't give them what they want,
they clear it for grazing. So we're kind of at one of these issues where
-- what (sic) are you supposed to go from here?
COMMISSIONER HENNING: Well, you have a hire law that
says you're allowed to farm your property.
CHAIRMAN COLETTA: That's correct.
COMMISSIONER HENNING: And it shouldn't be an
inordinate burden upon any government to stop you in that process. I
mean, that's an inherent right on everybody's property. I mean, I could
do that on my property.
CHAIRMAN COLETTA: The whole catch though,
Conunissioner Henning, is that that right is misused on a continuous
basis. We see people avoid paying taxes by rent-a-cows, putting cows
on their property for no other reason than to be able to say, yes, it's an
agricultural use and avoid paying what the actual appraised value is
for the land.
We have all sorts of issues like that. I mean, that's just the way
the system is. It's less than perfect, and people are always going to
take advantage of whatever little element they can.
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Agenda Item No. i 6K3
rebruary 24,2009
October 23':~4,ftbD7
So we're down to push or shove on this. In other words, the
land's already been cleared. It would have been cleared anyways,
even if we could have interceded ahead of time. I know I've been told
before that it's being cleared illegally, but everything I'm hearing, they
can do it.
Where do we go from here? Do we tell them they can't excavate
the dirt off the property? We have the attorney come up and say that
we can say you can't excavate. We have staff come back and so, no,
that's not a thing for -- a decision to be made by this commission. So I
guess it's within our own conscience.
COMMISSIONER HENNING: Okay. What I heard Mr.
Klatzkow say is, we depend upon the expert, being the zoning
director, to give us the skinny on that.
So, I mean, in my opinion I'd have to approve the conditional use
in order to allow him to do his fish farm, but if that's not the case, you
already have that right. The right, as what Susan Istenes says, the
conditional use, or what's on our agenda, is to take the dirt and move it
off site.
So the question is, why can't you do the fish operation by
berming it and creating the depth that you need?
MR. YOV ANOVICH: Okay. A couple of -- if we were to dig
the depth we need to have this be freshwater, because what we don't
want to do is to have a lined lake where we have to continually pump
the water n you push freshwater in, it becomes dirty because it's --
you know, it's lined, over time, then we have to dump that water, refill
it with freshwater.
This will be a naturally occurring process where we have the
right amount of fish in there so the water is always clean so we won't
be wasting water. For us to dig deep enough, Commissioner, for us to
have freshwater, we're probably talking well over 40-foot berms
around this piece ofpropeliy, if we can even get there. That, I don't
think, is in the best interest of the public to have -- am I right, Mike, at
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Agenda Item No. 16K3
February 24, 2009
October 2~':'2'4,7 2007
least -- about 40-foot berms to get the proper depth for a freshwater
lake?
We don't think that makes any sense to try to do that to have a
viable fish farm. You know, people are saying, well, just dig a
two-acre lake. Well, you can't make any money on the two-acre lake.
You have to have a big enough lake to generate enough fish for this to
be profit oriented.
I keep coming back -- and I wasn't trying to put Brad in a hard
place, but I was, because I want to know, what will it take to prove
that we're going to be a fish farm? And fish farms are allowed in
sending lands.
I mean, the Comprehensive Plan clearly says that, and he just
doesn't want it there. He doesn't want a fish farm there even thought
we have the right to do it. So he wants to stop us by not letting us take
the fill off. He just doesn't want the fish farm there.
So, you know, if there's another mechanism -- we offered up the
escrow to show you that we're really going to be a fish faml -- and
that's why I asked the question. Is there something else you all could
think about that will show you that we really are going to be a fish
farm operation?
We're willing to a pay a dollar a truck, you know, for the overall
public road impacts. We're going to fix the private roads for Mr.
Bower and his neighbors. I mean, we think that we're giving back in
return for the ability to go ahead and try to be a fish farm and, you
know, make a profit doing that. I mean, I don't think he should have to
apologize to do what he's trained to do.
COMMISSIONER HENNING: Can I follow up, please?
CHAIRMAN COLETTA: Of course, go ahead.
COMMISSIONER HENNING: The -- so if you haul off site
without berming, as I asked, you said there would be a normal filling
of the hole?
MR. YOV ANOVICH: You mean the water?
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COMMISSIONER HENNING: Yes.
MR. YOV ANOVICH: The water will be a natural filling. It will
flow with the high -- you know, the groundwater.
COMMISSIONER HENNING: The aquifer? The groundwater
MR. YOV ANOVICH: Right. During dry season, the water will
go down, that's why we need to be 20 feet, and during the wet season,
the water will come up.
So it will be natural, the amount of fish to where it continually
flushes and is always fresh, so we won't be wasting water. You know,
we could -- another alternative, which I think is environmentally the
wrong alternative, is to line the lake, dig down to a certain depth, line
the lake, and then keep wasting water. We can waste that -- we can
waste that resource. Still got a hole.
COMMISSIONER HENNING: Okay. I understand. Thank you.
CHAIRMAN COLETTA: Commissioner Coyle, then
Commissioner Fiala?
COMMISSIONER COYLE: Here is, I think, the problem. You
can't view any elements of this proposal independently because a
decision that's made to excavate and haul off the fill is a decision that
cannot be corrected if something doesn't work right, particularly if
you're doing it in a sending area where we are obligated to protect the
environmentally sensitive lands.
Yes, you can fann in the sending area, but I don't believe you
have the right to dig in the sending area unless there is a very strong
justification for doing so.
You're asking us to approve a petition that includes in it an as yet
unspecified escrow arrangement. Y ou're offering that as proof that
you really intend to do the fish farn1ing operation yet the elements of
that escrow agreement are not present. There's been no agreement on
what that element is.
There are very, very many accounting procedures which can be
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o February 24, 2009
October 2j~!'.f,~m
utilized for the purpose of reimbursing expenses. Is somebody going
to be drawing a salary as a result of this operation? I don't know.
That hasn't been specified. It certainly can't be based upon profit
because there's no way we can control the profit calculations of this
venture. So there are too many unanswered questions.
I'll tell you what would make me feel more comfortable is a
business plan which specifies the types of fish that are being raised,
how many are going to be placed there, what the source of sale is
likely to be, what is the anticipated revenue, what is the costs
associated with this, how many fish must be sold in order to break
even and make a profit, and also, any evidence that the people who are
operating this fish farm have ever done fish farnling before and, if so,
where and to what level of effectiveness.
Because once the hole is dug and the material is gone, what we
now have in a NRP A area is a hole in the ground, and because we
have exposed the groundwater to evaporation, we have done
permanent harm to the process of recharging our aquifers.
So you can't just take this one step at a time and say, yeah,
somebody has the right to dig a hole. It's what happens later that is my
concern, and I think we have an obligation to evaluate the
consequences of our decisions. So based upon what I have heard, I
don't think I would support this proposal.
MR. YOV ANOVICH: And, Commissioner Coyle, thank you for
expressing what your concerns are. What I would like to do, now that
I've heard your concerns, is provide you with all of that information. I
can't do it today. I don't think it would be fair to put Mr. Fawzy up
here to -- if I could prepare for you a business report that we will
submit to aJ! of you to show you we have a business plan, how it will
work, how it will function, we'll provide that to you for your review.
And, again, if you -- I welcome your input on the escrow. I don't
want to hold the money. We never intended that it would pay a salary.
It would be -- it would have to be actual invoices for the permitting
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process as well as the construction, and that's what would be
reimbursed from the escrow account.
After that, you know, the business plan would then kick in for the
ongoing time to assure you it's generating enough revenue to cover the
costs of operation and the continued viability of the business.
We can bring all of that to you probably -- give us, you know, a
month, because I don't think we can get it to you in time for the next
meeting, and if it needs to be a little bit longer, well -- we'd like to
have the opportunity to present that information to you and hopefully
persuade you that this is not, as it's being portrayed, a fly-by-night
mining operations.
COMMISSIONER COYLE: Well, you know, I don't want to
leave that impression. I don't want to make it sound like we have --
we're dealing with unscrupulous people because I don't think we are,
okay, but I -- I think that we have an obligation to make sure that the
person with the purest of intentions will succeed in this situation rather
than fail because it serves no one's interest to have the natural resource
protection area damaged permanently to let someone try their hand at
something that is -- that might fail. We don't want it to fail.
If we're going to go that -- take that step, we want to make sure
that it is very, very successful, and we have been presented no
evidence to suggest that there is the possibility that it will be
successful.
MR. YOV ANOVICH: And what I'm requesting is an
opportunity to get you that information. It's not something that's been
requested of staff. It's not the normal process for the conditional use.
We can get that information to you and your colleagues to hopefully
address your concerns.
I can -- I agree with your concerns. We need to. Show you that
there's a backup -- that this is, one, going to be a success so you don't
have the issues you're worried about, and that perhaps we can have a
backup plan if -- what happens if it's unsuccessful.
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Aoenda item No. 16K3
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October 2~~'l4;-'2'6b7
COMMISSIONER COYLE: I have no concern about continuing
it if the other commissioners wish to do so, but that's not my call.
CHAIRMAN COLETTA: Commissioner Fiala?
COMMISSIONER FIALA: Yes. It all boils down to, these are
NRP A lands. These are -- this is a sending area. There is a panther
corridor, and there are no extraordinary circumstances involved. We
vote this in and we're going to prompt everyone who wants to ever dig
a big hole in the sending lands or in the NRP A area to go ahead and
do that, and I don't believe we should do this.
So I make a motion to deny.
COMMISSIONER HALAS: Second.
CHAIRMAN COLETTA: Okay. We have a motion to deny by
Commissioner Fiala, a second by Commissioner Halas.
I'd like to ask the county attorney that -- should we state the
reasons for denial that might have legal sufficiency? I'm looking to
what may happen down the road if we end this by trying to bring
reasons into it that don't quite tit the mold of what it's supposed to be,
what the item is before us. Your advice would be most appreciated.
MR. KLATZKOW: Well, my advice is always to state your
reasons for the record why you're voting to disapprove, all your
reasons.
COMMISSIONER FIALA: I just did.
CHAIRMAN COLETTA: Fine, we just did, okay, tine.
COMMISSIONER HENNING: Well, she's saying that, number
one, it is inconsistent with the sending land designation of the Future
Land Use Element.
COMMISSIONER FIALA: Thank you. Yes, I am.
COMMISSIONER HENNING: I don't agree with it, but n
COMMISSIONER FIALA: But that's what I'm saying, it is.
COMMISSIONER HALAS: Also policy 3.1.1.3 in regards to
conservation coastal management element in regard --
COMMISSIONER FIALA: Also extraordinary circumstances.
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October 23~~'4~'2()07
It isn't an extraordinary circumstance.
COMMISSIONER HALAS: And I believe this wellhead is -- it's
a protection -- it's a wellhead that needs to be protected for -- and I
believe that's also identified in our Future Land Use Element.
CHAIRMAN COLETTA: Okay. Think that covers it?
MR. KLATZKOW: I'm comfortable.
CHAIRMAN COLFTT A: Okay. That's all that counts. That's
why we got you sitting there.
Okay. With that, any other comments?
(No response.)
CHAIRMAN COLETTA: Seeing none, all those in favor in the
motion -- favor ofthe motion to deny, indicate by saying aye.
COMMISSIONER COYLE: Aye.
COMMISSIONER HALAS: Aye.
COMMISSIONER FIALA: Aye.
CHAIRMAN COLETTA: Opposed?
COMMISSIONER HENNING: Aye.
CHAIRMAN COLETTA: Aye. Let the record show that the
motion for denial passed 3-2 with Commissioner Henning and
Commissioner Coletta --
MR. YOV ANOVICH: Takes four Yotes, I believe.
CHAIRMAN COLETTA: To approve?
MR. YOV ANOVICH: To take any action on a conditional use;
isn't that correct?
CHAIRMAN COLETTA: No.
COMMISSIONER COYLE: Four votes for approval, I think.
MR. KLA TZKOW: Need four to approve.
MR. WEIGEL: That's correct. It takes four votes to approve.
For example, if you have a 2-2 vote to approve, it would not be -- it
would not be approved either, and it would go into limbo or failure.
So three votes to deny will pass.
CHAIRMAN COLETTA: Okay. Thank you.
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Agenda Item r~o. 16K3
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October 2~~2'<f,3tbb7
Commissioner Fiala?
COMMISSIONER FIALA: Yes. You know, I think that
something else we ought to do is take some action on maybe
proposing something to go into the Land Development Code that
specifically addresses our sending lands and NRP A areas about fish
famling in general and mining in general in these very sensitive areas.
..And I think that is -- I'm sure that's for a future discussion, but I
think we ought to address that quickly. Thank you.
COMMISSIONER HALAS: I agree with you, Commissioner.
COMMISSIONER FIALA: Thank you.
CHAIRMAN COLETTA: Okay. Let's move on to the next
item, Mr. Mudd.
Item #8B
PETITION HD-2007-AR-11828, THE COLLIER COUNTY
HISTORICAL AND ARCHAEOLOGICAL PRESERVATION
BOARD, REQUESTS A HISTORICAL DESIGNATION FOR THE
DR. NEHRLING TROPICAL GARDEN LOCATED ON COLLIER
COUNTY PROPERTY AND LEASED BY THE NAPLES ZOO.
THE SUBJECT PROPERTY CURRENT ZONING OF THE
PARCEL IS C-3 AND "A" RURAL AGRICULTURAL, CONSIST
OF 13.35 ACRE AND IS LOCATED AT 1590 GOODLETTE
ROAD NORTH, SECTION 27, TOWNSHIP 49 SOUTH, RANGE
25 EAST, COLLIER COUNTY, FLORIDA - MOTION TO
RETURN TO THE BOARD AT A FUTURE MEETING
W /RECOMMENDA TIONS WITH A REVISED RESOLUTION -
APPROVED
MR. MUDD: Commissioner, the next item is 8B. This item
requires that all participants be sworn in and ex parte disclosure be
provided by commission members.
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