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HEX Minutes 04/22/2021 4/22/2021 Page 1 of 19 TRANSCRIPT OF THE MEETING OF THE COLLIER COUNTY HEARING EXAMINER Naples, Florida April 22, 2021 LET IT BE REMEMBERED, that the Collier County Hearing Examiner, in and for the County of Collier, having conducted business herein, met on this date at 9:00 a.m., in REGULAR SESSION at 2800 North Horseshoe Drive, Room 609/610, Naples, Florida, with the following people present: HEARING EXAMINER ANDREW W.J. DICKMAN ALSO PRESENT: Raymond V. Bellows, Zoning Manager Tim Finn, Principal Planner Heidi Ashton-Cicko, Managing Assistant County Attorney 4/22/2021 Page 2 of 19 P R O C E E D I N G S HEARING EXAMINER DICKMAN: Good morning, everybody. This is the April 22nd Hearing Examiner Meeting. It is 9:03, according to my clock, and why don't we begin by having the Pledge of Allegiance. All rise, please. (The Pledge of Allegiance recited in union.) HEARING EXAMINER DICKMAN: Okay. Thank you, everyone. As you know this is an in-person and hybrid -- well, a hybrid public hearing. There are folks that are on Zoom or on electronic visuals here that will participate, as well as in-person. The County is doing its diligence to try to keep everybody safe, so I appreciate let's stick with those rules and regulations. My name is Andrew Dickman. I'm an attorney in good standing with the Florida Bar. I was just retained by the Board of County Commission to conduct public hearings for certain petitions listed in the County codes. These hearings are quasi-judicial in nature. I sit as a quasi judge to hear testimony and evidence from the parties and the public, and then to apply the information to the criteria adopted in the Code. The rules of evidence in a quasi-judicial hearing is less formal than in a judicial hearing or judicial proceeding. However, I will rely on relevant evidence. I will ensure that fundamental fairness is given to the parties and the public. I will render a written decision within 30 days from the date of the hearing. At this time I want to -- I have no ex parte communications. It's very important for me to remain as a neutral decisionmaker. What I have read are the documents that were supplied to me by County staff that were submitted to County staff by the applicants and anyone else. So that is all I have in front of me, and everything that is going to -- if anyone is going to testify today they need to do so under oath. So at this time anyone who is going to speak today, I would like the court reporter to administer the oath, and, again, you'll be speaking under penalty of perjury under oath. So madam court reporter, will you, please, administer the oath. (All parties were duly sworn and answered in the affirmative.) HEARING EXAMINER DICKMAN: All right. Awesome. Great. So according to the agenda we have two items here, and the first one is 3A. Now, before we get started on this one, I want to bring up the issue of the neighborhood information meeting, also known as the NIM. It looks as though in January 25th, the applicant or petitioner requested a waiver of the NIM. The County Code for the Hearing Examiner does allow for this in certain circumstances, to waive the requirement of the neighborhood information meeting. When that is requested my -- my procedure is to ask County staff what their recommendation is, and then to also make sure that in granting -- in this case I did grant the neighborhood information meeting waiver -- that the individual or entity requesting the waiver, understands that if in the interim, between the granting of it and today, there is opposition or reason for me to require a neighborhood information, that I reserve that -- that -- that right. Now, the reason, and I want to bring this up, only because it's important that everyone believes and trusts that as a Florida Bar attorney and your Hearing Examiner, that I remain a neutral decisionmaker; that my job is to hear all the testimony and evidence, look at the criteria that's in the adopted code under the County. Also look at, you know, rules of evidence, and things of that nature. This particular situation, whenever I'm asked of a NIM waiver, my hope is that the reason for that waiver is that the issue is so -- so minor that there really isn't a need for the cost of having a neighborhood information meeting. Now, it puts me in an odd situation, I will tell you, that if I were to get a NIM waiver request, it would essentially cause me, if I were to investigate that, I would have to contact the County, find out what's going on, find out where the application is, what type of opposition or support there is. Essentially, I would be making myself somewhat non-partial affected, and I very much want to be here in front of you all today, and the public and anybody here, as a neutral decisionmaker. 4/22/2021 Page 3 of 19 So what I have come up with is that process of requesting staff's recommendation, because they're the ones that have information about the actual application, the neighborhood, any opposition or support. So I want you all to understand that, and why I put that caveat in there about my ability and retain that jurisdiction to be able to say at this hearing whether or not I'm going to require an neighborhood information meeting, or to reverse my prior decision. I hope that's clear to everyone, because I just don't feel it's a -- I don't believe it's fundamentally fair for me to start investigating an application before this hearing, and asking questions on one side of the County, or even going to the applicant and trying to find out whether there's sufficient evidence to grant that particular waiver. So that's a little background. I think it's important for everyone to understand my thought process in waiving a neighborhood information meeting, and so at this point I want to delve into this idea, because I see people here. I'd like to ask a few questions of staff and if I can find out how many people have registered to speak to this item right now? MR. YOUNGBLOOD: Online we have 25 registrants of which about 20 -- I'm sorry -- about half are wishing to speak on the item, and we also have two in person with us today who wish to speak on the item. HEARING EXAMINER DICKMAN: Okay. Do we know anything about whether or not -- and state your name also. MR. YOUNGBLOOD: For the record, Andy Youngblood. HEARING EXAMINER DICKMAN: Okay. Thank you. Do we know whether or not any of these individuals that want to speak are in opposition or proponents for the petition? MR. YOUNGBLOOD: Again, for the record, Andy Youngblood. We have a couple of supporters and the vast majority are in opposition of this. HEARING EXAMINER DICKMAN: Okay. Thank you for that. Part of the neighborhood information meeting is, a big part of it, is vested in due process. In addition to the regular requirements in the County code for mail notices, for sign notices, for other types of notices to the public and anyone else to attend the public hearing, the neighborhood information meeting is also a significant part of that due process, so that the applicant or petitioner in this case can be -- can meet with the neighbors, speak to them in a casual setting, and to perhaps resolve any potential issues that the neighbors have, and that way it reduces any issues that I may have to weed through, or any issues that the County staff have to weed through. So based on the fact that there are a significant amount of people here to speak to this item, and I did grant the neighborhood information meeting; however, I did indicate in writing if any opposition to your application occurs between the granting of this waiver and the public hearing, I reserve the right to reschedule the hearing and require the holding of the neighborhood information meeting. So at this time I'm going to require that the neighborhood information meeting be held. I've put the -- I think it was Ms. Robbins, this was addressed to, and I would -- I'll give Ms. Robbins the opportunity to speak briefly to this issue, but I would -- I think in this situation I've been very clear in trying to maintain my neutrality, but also, this is in the Code. It allows me to -- it allows them to request it, and allows me to grant it, and I've been trying to do that in an objective manner. Is Ms. Robbins here? If you can come up, please. Did you understand everything that I've said? MS. CRESPO: Yes, sir. Good morning. Alexis Crespo with Waldrop Engineering. HEARING EXAMINER DICKMAN: Okay. MS. CRESPO: Leslie Robbins is no longer with the firm. I am taking over the petition. HEARING EXAMINER DICKMAN: Okay. MS. CRESPO: I certainly appreciate your comments and the awkward situation the NIM waiver can place the staff and Hearing Examiner in. We requested it because the petition is for an allowable use, meets all setbacks and below building heights, so this was just to modify some operational characteristics of senior housing to allow the project to be affordable. 4/22/2021 Page 4 of 19 We certainly respect your decision. We would like to, because this is subject to expedited review, because it is providing bona fide affordable housing per the County program, we would like a date certain. We will schedule this NIM today, and get that advertised appropriately, but time is of the essence to this applicant. HEARING EXAMINER DICKMAN: I understand and I appreciate your remarks, and let's do that. Can you get neighborhood information meeting in place and get back here within a month; is that possible, staff? MR. BELLOWS: Yes, that would be possible. We would look at -- HEARING EXAMINER DICKMAN: I'm sorry. I just cut you off, Ray. I do appreciate date certain. Continuing it to next month would allow for not re-advertising; is that correct? MR. BELLOWS: That is correct. HEARING EXAMINER DICKMAN: Okay. So if you can put together a neighborhood information meeting with staff, I think that would be in the best interest of everyone. Perhaps you can address some of the concerns you've heard. This is a good opportunity for you in an informal setting to not have this sort of opposition type of public hearing to resolve some of those issues. I appreciate your comments in terms of what you're asking for, but I think at this point in all fairness to everybody, including you and your client, I would like to go ahead and reschedule this for the next meeting, and if you could go ahead and hold that neighborhood information meeting, I would -- I would ask that you do that. MR. BELLOWS: Would it be the May 13th meeting or the May 27th, the second meeting? HEARING EXAMINER DICKMAN: Let's ask the representative, how quickly can you put this together? MS. CRESPO: It will be our first priority. May 13th provides us enough time to get the notices out by the end of this week and meet the 15-day requirement. HEARING EXAMINER DICKMAN: Okay. So that puts us on the 6th; is that right? MR. BELLOWS: May 13th. HEARING EXAMINER DICKMAN: May 13th, fair? MS. CRESPO: Yes. Is it appropriate for the applicant to address any of the affordable housing questions that we believe is the bulk, since folks did show up today? HEARING EXAMINER DICKMAN: I would rather keep this procedural at the moment and not delve into substantive issues. I believe it would be better if we just stick with the NIM issue and go ahead and have a full hearing at that time. If after the NIM, we still have 25, 30, 50, 100 people that want to speak, so be it, we'll do it, but no one can claim that they were denied fundamental fairness and due process. I think you would rather have that as well as something that we don't have to argue about that, you know, due process was violated. So let's go for that meeting date, and right now we're just dealing with procedure on the NIM, and when you come back, we'll delve into the substantive issues, of course, all the time that you need to do all that with experts and other people. I prefer to do it that way. Okay? MS. CRESPO: Thank you. HEARING EXAMINER DICKMAN: Are we good? MR. BELLOWS: Yes. HEARING EXAMINER DICKMAN: All right. MR. BELLOWS: I think that's a fair solution, given the number of people that showed up. HEARING EXAMINER DICKMAN: Okay. Great. MR. BELLOWS: We did not receive the exact reasons for their concerns until today, I guess. HEARING EXAMINER DICKMAN: Okay. I do want to encourage the public that wants to participate at that hearing, please, please, get any and all information that you want to use at the public hearing that has just been mentioned that will be held, get it into the County ahead of time. The County will share that with the petitioner. The petitioner will have full knowledge of what types of issues that are being brought up, but, also, go to that neighborhood information meeting and have 4/22/2021 Page 5 of 19 those conversations in a more informal setting, and maybe those things can be resolved. If they can't, at least everybody has the same information when they show up back here in front of me. So, please, send any information through the County and the County will distribute that to the petitioner. The petitioner will have that, and we'll have a completely transparent, open and fair hearing when everybody comes back. I appreciate everybody logging in to this hearing. I appreciate folks being here, and I think that that concludes any further discussion on this matter. So thank you, everyone, for being here. Thank you for everyone to log on. So we'll move on to the next item. UNKNOWN SPEAKER: Sorry, can I ask a question? HEARING EXAMINER DICKMAN: Not from the audience, no. I mean, we can -- UNKNOWN SPEAKER: I don't want to continue. I just want to know the process we just went through. HEARING EXAMINER DICKMAN: Well, I just explained the process that we wen through. UNKNOWN SPEAKER: I understand you did, but it's -- HEARING EXAMINER DICKMAN: No, no, ma'am -- UNKNOWN SPEAKER: I get it. HEARING EXAMINER DICKMAN: This item has been -- no, the item is over with. I've made my decision. Is it possible to get a bottle of water over here? I have one here. MR. BELLOWS: Looks like we just have Tim now. HEARING EXAMINER DICKMAN: Ten? MR. BELLOWS: Tim Finn, he's the sole remaining person. He's here for the second item. HEARING EXAMINER DICKMAN: I know what the second item is, but where is -- oh, there he is. He can't get in the door. Can't get in the door. He's been blocked. MR. WRIGHT: I was in the waiting room. HEARING EXAMINER DICKMAN: All right. Okay. So why we don't take up the next item, which is Item 4A on the agenda. Is everybody ready for this? Ready or not. Okay. So before we get started, let me explain what we are doing. In the County's Land Development Code Administrative Procedures Manual, there is a provision once I have rendered my decision that the -- there can be a motion by a party, the Hearing Examiner may grant a rehearing on the application for three reasons, and the motion for reconsideration by a party shall be made prior to the deadline of the filing of an appeal, which I believe is 30 days. The filing of such a motion tolls the time. This particular -- it appears as though this particular motion for rehearing/reconsideration and I understand the terminology slash is important, because that's what they're referring to as reconsideration of my decision, appears to me to have been filed timely. This is an interesting -- an interesting element of the code, but, nevertheless, I think it's important that in the event that there has been a mistake, inadvertence or excusable neglect, newly-discovered evidence, which by due diligence could not have been discovered in time for the original hearing, or fraud, misrepresentation or other misconduct of an adverse party -- adverse party. Okay. So, Mr. Wright, how are you today, sir? MR. WRIGHT: Just fine, thank you. HEARING EXAMINER DICKMAN: And is his microphone working? MR. WRIGHT: Morning. HEARING EXAMINER DICKMAN: All right. There. We want to make sure the court reporter hears everything. So what we're going to do today, this is -- this is strictly going to be an issue on whether or not I am going to grant the motion or deny the motion. We're not going to hear the substantive part of the hearing. This is really just to argue the points in your motion as to whether or not we do this. If I were to grant this, we'll schedule it for a hearing, and then we'll deal with the substantive issues; is that a fair direction, Mr. Wright? MR. WRIGHT: That's exactly how I envision it, yes. 4/22/2021 Page 6 of 19 HEARING EXAMINER DICKMAN: I envision it that way, too. Great. So I have your motion, but I do want to hear your explanation, and I want to ask you some questions, go back and forth on this, and we'll go from there. So why don't you go ahead and take the lead. MR. WRIGHT: Okay. For the record, I'm Jeff Wright with the Henderson Franklin Law Firm here on behalf of the applicant and movant, I guess, in this matter. Just a couple of big picture things. We are trying to find an alternate site for this tower, and to do that it takes time. So when our 30th day was coming up, we wanted to -- and I talked to the staff, they've been great -- we want to preserve our rights, and those rights would be to an appeal, and to mediate under FLUEDRA, but both require exhaustion of your remedies, so we looked at the rules and we thought, okay. Well, first of all, back up, to find an alternative site and to be comfortable to go forward takes time. We have to deal with care of -- HEARING EXAMINER DICKMAN: Let me stop you, there, Mr. Wright. Can staff or someone please ask the folks to grab another room, or it's really nice outside, they can walk out there? I get distracted easily. Bear with me. All right. I think we've got the folks out there to a different place to talk about things. So sorry for cutting you off, Mr. Wright. Go ahead. MR. WRIGHT: No problem. As I was saying it takes a while to get a site, to get all the parties that are involved comfortable with the site. Since this hearing we're targeting a particular site, and we're confident we can do it, but all of the moving parts have not yet gotten to where they need to be, so I've been told it could be any minute, but it's taken a while, so we want to preserve our rights. I thought this was the most efficient way to do that. Also what I wanted to point out, like every motion, there's a movant opposition party. In this case the County is the opposition. I haven't heard any opposition from the County. So, hopefully, that will help to make your decision easier. Now, as to the substance of the motion, our real concern and the big picture, was we were a little caught off guard by the opposition, their experts, their submittals, their PowerPoints, and a thick stack of documents, that I don't know even know yet what I've had a chance to look at. I looked at the record online, there's some stuff in there, but I'm not 100 percent sure. So when I look at the standard for this motion to get a rehearing, first of all, you know, from the point your decision today happens or when it is rendered, we have an additional 30-day window to go to the BZA, essentially the Board of County Commissioners, or to go straight to FLUEDRA; that's the kind of time frame we're thinking big picture. As far as the motion itself goes, the grounds we've stated in the motion, we felt and what I've tried to do, is match our circumstances to the standard on the motion, and as I said, we were a little caught off guard. On the first thing is mistake, inadvertence or excusable neglect, the rules aren't very clear, and I'll tell you on the front end, that it's customary to have adverse opposition have an opportunity to speak. HEARING EXAMINER DICKMAN: Uh-huh. MR. WRIGHT: And I'm not saying they shouldn't, but when I look at the rules, and it doesn't really have any provision for the presentation of evidence by these participants -- HEARING EXAMINER DICKMAN: Uh-huh. MR. WRIGHT: -- in the first place, okay, it's customary they're allowed to say something, maybe get three minutes, maybe they can team up their time, get a half hour, whatever it is, but there's nothing really stated, but as a result, we have a transcript and a record that is about, I don't know what the precise math would be, I'd say about 70 percent based on participant testimony. HEARING EXAMINER DICKMAN: Uh-huh. Uh-huh. MR. WRIGHT: So we thought, well, that would probably be inappropriate and excessive under the rules, since there is no provision for them to be able to do that in the first place, and then that ties to kind of our second argument, that this is a lot of new stuff, and we really didn't have a chance to look at it and have a fair chance to respond to it. 4/22/2021 Page 7 of 19 HEARING EXAMINER DICKMAN: Uh-huh. MR. WRIGHT: And when I say newly-discovered evidence, obviously, normally that's a totally different context where you found the smoking gun or something along those lines. Our argument is different, and that is that we were presented with a whole bunch of evidence that we had never seen before, and we still haven't, with comfort, seen all of, and so in that sense it is newly-discovered from our perspective, and we would like to be able to refute it -- HEARING EXAMINER DICKMAN: Uh-huh. MR. WRIGHT: -- in a meaningful way. I think the third argument is the misconduct. Again, the other side was very professional. Doug Lewis and Ralph Brookes were here and they were great and professional, and I would never want to throw shade on their conduct. But under the rules of misconduct, I think, could include overloading the record with exhibits that have never been presented to the applicant, so that's kind of the frame in which I put that misconduct argument, and that's pretty much our request; that's the reason for our request, and we would appreciate your approval of our motion. HEARING EXAMINER DICKMAN: Okay. Thank you for that brief summary of your motion. I think it tracks it very well, and I appreciate the manner in which you presented it. I thought that was very professional. I want to walk through this carefully with you -- MR. WRIGHT: Uh-huh. HEARING EXAMINER DICKMAN: -- and fully understand where we're going with this. A lot of this relies on identifying the parties and identifying the public, and from what I read, I think most of this, even including when you look at all three of your arguments -- it seems as though your primary contention is that, and I hate the word ambush, because I don't think that's appropriate here, I think you said caught off guard because you hadn't seen information or weren't aware or weren't prepared for arguments that you had not heard before. And I do want to -- I want to be, and maybe County can do this, my recollection is that this item had been continued a few times; is that correct? Somebody, Ray, you want to -- MR. BELLOWS: Yes, that is correct. I was checking with the project planner. HEARING EXAMINER DICKMAN: Yeah. Mr. Wright, this item was continued several times; correct? MR. WRIGHT: Yes, multiple. HEARING EXAMINER DICKMAN: It was my understanding that, in part at least, that was to, you know, to speak with the neighbors. I know for a fact, hopefully if my memory serves me correctly, that the opposition or opponents to this had a lawyer, and that lawyer was here at one of the hearings where we continued it, and I believe the statement was made on the record, was, hey, part of the reason for the continuance is for us to be able to get together and try to resolve any issues that are outstanding; is that a fair statement? MR. WRIGHT: Yes. HEARING EXAMINER DICKMAN: And, again, I compliment you for taking that time to meet with the neighbors, meet with their lawyer, especially when you realize they have a lawyer, I think it's prudent for any applicant's representative to try to solve any problems so you're not, you know, you're not getting appealed. In other words, you want this to go through and work, but, apparently, it didn't, but you did take the time to do that, and I appreciate that, I think that was a smart move on your behalf. The other thing was that my recollection was that you had one expert here, and, generally speaking, I think the gentleman had to do with cellular tower expertise, we'll just refer to him as. The opposition had two experts here, one was attorney Mr. Brookes, who essentially just provided information on the law of variances. I mean, that's how I characterized it and looked at it. I'm also very familiar with the law of variances as well, but there was a planner here, and if I recall right, I think you even stipulated to that planner's being an expert. MR. WRIGHT: Uh-huh. 4/22/2021 Page 8 of 19 HEARING EXAMINER DICKMAN: I wasn't familiar with that individual, but you stipulated that individual is an expert; is that correct? MR. WRIGHT: That's correct, Tom Barber. HEARING EXAMINER DICKMAN: Okay. Great. So the -- do you agree -- I mean, of course I have to follow the code. The code is what it is. I will tell you that there's some -- the code meaning the Code of Ordinances, the Land Development Code, and Administrative Procedures Manual, Land Development Code. There appears to be some things that need to be cleaned up, I think, a little bit. I think the County is doing absolutely the right thing by having a Hearing Examiner for those things that would take up a lot of time in front of the Planning Commission, and it allows the Planning Commission to deal with larger issues that they have to work through. So without minimizing my role here, but I think it's to deal with, you know, fairly noncontroversial, fairly minor types of things, but would you agree that, in addition to the codes and the rules that are adopted by the County, that as Hearing Examiner, I also have the ability to look at case law and to take that into consideration as well? MR. WRIGHT: I would 100 percent agree with that. HEARING EXAMINER DICKMAN: Okay. Thank you. So what it comes down to is we know that the -- who the parties are, and in a quasi-judicial setting, the parties are the applicant and the County; is that a fair statement? MR. WRIGHT: Yes. HEARING EXAMINER DICKMAN: Okay. And then we have this whole array of the public, and within the public, there could be parties that are adversely affected, and those that don't -- and somewhere down the line if they appeal, some would have standing and some wouldn't. MR. WRIGHT: Uh-huh. HEARING EXAMINER DICKMAN: In my opinion I don't make a -- I'm not going to make a determination on who has standing and who doesn't have standing. I'm simply trying to ferret out the competent, substantial evidence that would be applied to the criteria, that's it. And if someone from the public is here, even if it's a layperson, would you agree that I'm able to at least use that to the extent that it's presented as a layperson, as long as they have factual-based information to their knowledge? Is that -- is that -- would you agree with that? MR. WRIGHT: Yes, I would. I know there is some case law that spells out the nuances of what that would mean, but generally speaking, yes, I would agree with that. If a layperson can provide competent, substantial evidence to support a position either way -- HEARING EXAMINER DICKMAN: Right. MR. WRIGHT: -- assuming they have the underlying factual knowledge and basis for it and it's pertinent to the criteria, of course. HEARING EXAMINER DICKMAN: Okay. Great. And so my role here isn't to just rely on the parties, the applicant and the County, that to me would be counterintuitive to the whole point of advertising this and noticing this and allowing the public to speak. If the public speaks and it's just gratuitous, and they can't present any information, then that doesn't make any sense. So I think we're all in agreement here that I can listen to the public, and as a decisionmaker I can weigh what they're saying, as whether it's competent and substantial evidence versus just things that I respect their opinion, but it may not be germane to the criteria that I have to judge this to. Forgive me for going slowly about this. I think it's important. Did you agree with that? MR. WRIGHT: Yes, I do. As I said in the beginning, of course they have an opportunity to speak and be part of the whole process. HEARING EXAMINER DICKMAN: Right. MR. WRIGHT: To me it's the quantity in our case. HEARING EXAMINER DICKMAN: Fair enough. I understand that part. So the hearing -- so I think what you're saying is that the information -- even though I think you knew that there was -- they had an attorney, there was opposition. I suspect you knew some of the issues that they were 4/22/2021 Page 9 of 19 going to raise. I'm not sure you knew that they were going to bring experts in. You may or may not have, you know, I listened to those experts to the extent that I felt like it was important. As the Hearing Examiner, I do want to be fair and open to everyone, and if somebody in the public realm feels they are more of an interested party, not a party, but an interested party, as opposed to the general public, and has a substantial interest in the decision that's being made, if somebody goes to the extent of hiring a lawyer and hiring experts, I believe that I have that latitude, if you will, or discretion, to give them the more than the general three minutes or five minutes, instead of cutting them off at the knees. I mean, do you think that's a fair statement? MR. WRIGHT: Absolutely, yes. Yes. HEARING EXAMINER DICKMAN: I just don't -- I find it to be almost a shame that somebody would take up an appeal and win on an argument that they didn't get an opportunity to speak, or make their full argument, because chances are it would be remanded down and here we are again. But at the same time I think you are stating that maybe there are things that were presented that you were caught off guard with, and that you really weren't able to address those. However, I do also want to put on the record that the procedure -- the sequence that I like to follow in a quasi-judicial hearing that makes a lot of sense if for the County, the party, to present the item. They've already developed the staff report and it lays out their analysis and recommendation, put that in the record, allow the applicant then an opportunity to state whether they agree or disagree with the staff report, go into more detail as the criteria, present their evidence to support that, because they -- the burden is on the applicant, I believe. Do you agree with that? MR. WRIGHT: Yes. HEARING EXAMINER DICKMAN: The burden is on the applicant to say, I'm asking for this, the criteria is there, I meet the criteria, and then we open it up to the public. We hear the public, because the public is here because they've been noticed, mailed notices and signs and things like that, and allow the public to speak. Usually, again, as if the public -- part of the public at least has gone through the opportunity or the expense of hiring a lawyer and that you knew about, and experts, I don't want them to make an argument that they were -- they were denied the opportunity to make their argument. But then more importantly, I flip it back to the applicant for any rebuttal, and, you know, the parties and the applicants will be able to do that. So to the extent that anything that was presented by the public, some of which might be interested parties, because I believe, if I recall correctly in the criteria for a variance, there is that element of, is it going to create adverse effects on any adjoining properties, things like that. So if you notice in the hearing I was trying to ferret out where people live, how it will impact them, things of that nature, so when I go back, I'm not making rulings here at the hearings, at least on the substantive items, I'm thinking about this, taking the record with me, looking at it. I took a lot of time on this one, frankly, because I wanted to get it right. At the core of a variance, I hope you agree, is the concept of hardship. So I do appreciate your comment about, hey, we're looking for another site. You know, that shows to me you have a good social conscience about the neighbors and where you want to be, but if you read my decision, I was really looking for more information directed -- more competent, substantial evidence directed towards that First Responder issue. The reason for that is the applicant's application was asking for a larger tower than I think -- the size of the tower, the height of the tower is what ultimately forced the need for variances; correct, so then -- MR. WRIGHT: Or one could argue the code forced it, and the code is outdated. HEARING EXAMINER DICKMAN: True. So the code is the standard, performance standard. You have setbacks that are written. So a smaller tower would have maybe not required the need for a variance, but a higher tower, it seemed to me, that participation in this FirstNet Program was the one that 4/22/2021 Page 10 of 19 triggered that type of tower, and first responders, which I very much respect, and if there was a need for the first responders out there, I wanted to know about that, because if there was evidence that, you know, first responders, said, yeah, that is the perfect location, it's going to fill the gaps. So I was hearing a lot of, you know, more like retail service, generalized wireless service versus the FirstNet stuff. Just so you understand, this is for your understanding, I think I put it in the decision, I was really trying to look for that, because that would have told me this is the best site for that first responder network, which is part of a federal program to get first responders on their own link or their own wave link in the event that during a hurricane and whatnot, everybody is on the same system and it crashes and public health and safety issues come into play. So that being said, I hope you appreciate my position about the public speaking, and that I do believe that there is a role for -- while it doesn't spell it out, but there is case law that talks to interested parties who would be able to take up an appeal and succeed potentially. I'm sure you're very aware of third parties taking up an appeal and winning, that happens quite a bit in circuit court and there on up. I'm not making a decision about who has standing and who doesn't, but I also want to be respectful to the people that I believe could be adversely affected, because -- and I don't have that criteria in front of me, and I don't want to go into that, but there is a process I have to look at, in terms of whether or not somebody is adversely affected by this, and we talked about the fall circumference and things of that nature. That being said, I do want to -- I don't want you to feel, or your client to feel, that they were caught off guard. I'm really using that because it's hard for me to find a better word for it. I know you guys have a lot of dialogue, and, yes, there may have been a lot of testimony from the public, and also testimony that came in from the two experts, and also the attorney and argument and me trying to figure that out, but I don't really think it's a matter of the stopwatch trying to, you know, calculate who had the most time. I was trying to give everybody the procedure. But that being said I want to make a fair decision. I want to have that ability, and I know in the appellate world, rules of appellate procedure, which I'm kind of trying to work in that realm, that if there was an element of law or information that was misinterpreted or misunderstood on my part, I think that, in the rules of appellate procedure, and I'm sure you practice in that area as well, I'm trying to sort of square that with what the code says here. To that extent, I certainly don't want you to feel that my decision was based on a lack of information, because a lot of stuff came in at the last minute that you weren't privy to, and then I made that decision without you being able to contradict that, but, again, I think that's really the heart -- I know there's a lot of steps in the code for that type of variance, but at the heart of it was the hardship related to the property, not caused by the need or the want of the applicant, but because it was that FirstNet issue I was really struggling with that, and I really wanted to hear more about that, and it was difficult. I could see that the expert you brought in, had you been able to get more information on that FirstNet into the record, I think that that would have probably helped me more in understanding that. I've pontificated for a long time, but it's okay. I want everyone to understand where we're going with this, because I'm not sure this happens a lot where someone asks for a rehearing. I'm glad you have that ability, frankly. So -- and there has been discussion about parties and participants and the public, but I also know case law, and within the public there are certain members that have greater interest, and I believe if you look at the Renard case, it speaks to that, and they have standing. I am not going to decide who has standing. I will decide, you know, on whose an expert and who is not, because I'm going to listen to an expert and give greater weight to an expert's testimony and evidence, rather than the general public, but if a layperson comes forward and provides factual, fact-based information related to the issue at hand, I do want to listen to that, but I also listen to anybody that wants to speak. They're allowed to in Florida; right? MR. WRIGHT: Right. HEARING EXAMINER DICKMAN: That's the law and that's fairness, and that's a good thing. So one of the things we need to -- I'm kind of speaking to staff here right now, is that I know my office 4/22/2021 Page 11 of 19 has tried at every length to make sure that if something is submitted, that both sides or everyone has that availability. A lot of times the public, you know, the only way they would get it, the general public, is by doing a public records request, but if we know that we have an attorney that's here, and we knew that, you know, I wanted to make sure that happens, but you do have a rule, a ten-day rule, which I think makes public hearings a little bit difficult, because people do want to come up and say here I have this, I have this, and when that happens, I want to slow down and give that, but, you know, I don't -- I feel uncomfortable when someone brings something in and they hadn't submitted it within ten days. So you at the County, as a party, needs to be able to review that and refute it or not refute it, or take it into consideration and make some kind of adaptation to their staff report, or give the parties, the two parties, the ability to review it. So that may not have happened, the ten-day rule, where you've got a hard line, and you say, if you don't get it in prior to ten days, you know, I'm going to have to ask that question, and say did you submit this within ten days? They say no, I'm going to say, well, I can't take it. I'm trying to get as much information as I can as a neutral decisionmaker, but I can see how you may have not felt comfortable, or been able to address some of the issues that were coming forward. I think you looked at my decision, and, hopefully, I feel I took a lot of time with it, and I really tried to justify what evidence I was looking at, and what testimony I was looking at versus not looking at and -- but I do want to be fundamentally fair and I do -- I am more inclined to grant the rehearing; is that what's it's called, rehearing? MR. BELLOWS: Reconsideration. HEARING EXAMINER DICKMAN: Reconsideration, but let's go through that. Let's say I do grant that, in your opinion, in fundamental fairness, should that be done here in this, or should I do that in an ex parte manner? MR. WRIGHT: Well, the way I read it, and this is what I've thought -- HEARING EXAMINER DICKMAN: Talking through this. MR. WRIGHT: Sure. Sure. I always thought when I hear the word hearing, a rehearing means the same thing again. Just one thing I want to clarify, and this goes to your question, because I think you have the authority to maybe taper the scope of a rehearing, and what I wanted to just make really clear, we're not complaining about the arguments that they've made. We're not complaining about the public saying what they said. It's the evidence. It's the evidence. HEARING EXAMINER DICKMAN: Uh-huh. MR. WRIGHT: Obviously, the public, that's evidence, too, but the expert is evidence, and the expert's PowerPoint is really, really evidence, and the attorney's stack of documents is really evidence. HEARING EXAMINER DICKMAN: Uh-huh. MR. WRIGHT: Anyway, not that I want to make that argument, I like the direction this is going. If a rehearing were to take place, to your point, I think you can limit the scope to presentation of refuting evidence and testimony from the applicant in response to what was to submitted at the hearing, just for an example. HEARING EXAMINER DICKMAN: Okay. So I'm inclined to do everything in the sunshine. I prefer to do that. I know I rule on NIM waivers on my own, but I try to think that is as far as possible, but I feel that I would be very uncomfortable on my own just accepting new information or newly-discovered evidence or anything like that. I don't think there was any fraud here at all -- MR. WRIGHT: I don't think so either. HEARING EXAMINER DICKMAN: -- whatsoever. In fact, I think everyone conducted themselves, you know, really well, but I do tend to think that I like to have due process, and, you know, follow the state guidelines about having public hearings and things of that nature, but I agree with you. It needs to be narrowed to the issue at hand, and I do think that you should be able to have the benefit of everything that I had, which was really just everything that was submitted. I mean, I didn't go out and do anymore investigations. I didn't drive out there, look at the 4/22/2021 Page 12 of 19 property. I didn't take phones calls from anybody. I didn't call staff or anybody else. I don't do that. I don't do that, and if I do do that, I think the cure is to disclose that at a public hearing, but I do everything that I can to remain a neutral decisionmaker. So what I think we need to do is, No.1, this needs to be done here. If we -- you know, by having that, you know, addressing the issues that were in the decision, narrowing it to that, the decision, so we can look at the decision, and you can tell me what specifically things, based on the criteria, that maybe I misunderstood or overlooked, and if there is any newly-discovered evidence that I need to understand, because I know in the record there was a discussion about FirstNet -- am I saying that right, FirstNet? MR. WRIGHT: Yes. HEARING EXAMINER DICKMAN: FirstNet. I know there was discussion about that and you brought in somebody, but it wasn't a first responder, and I know that there was comments on your side about FirstNet, that you had spoken with some responder. I'm going to refer to them as first responders, okay, fireman, police, things like that, but I didn't have that information, and to me that was critical, and I think that would be relevant information to bring in and help me understand that. So I think that that's the scope of it right here, these three items, and specifically giving me guidance as to your arguments, based on my written decision that I've rendered, because you've basically addressed that decision. I also want you to have everything that I had based on that, and everything that was submitted in the record, and everything that was submitted in the record the County has, and, hopefully, has given to you. I didn't look at anything else, just so you know. Like, I know I had Mr. Brookes' resume. I had the gentleman, their planner, that person's resume. Mr. Brookes submitted some case law on variances. There were other things that I know was submitted. So I want to make sure you have everything that I have, and that the County has, because you two are parties, and I want to keep it to that. I am going to have to allow the public to speak, but I will keep -- I promise you I will keep that to a minimum. I'm not going to have a full-blown hearing. I'm going to focus on the parties, you know, I'm not going to stop somebody from speaking, you know, but we do have time limits to that, and I think under Florida law, in fact, I know under Florida law, I'm required to give people a reasonable opportunity to participate in a public meeting. So is that a fair parameter so far? MR. WRIGHT: Yes, and I think as a practical matter, I think Doug Lewis, the attorney for the other side, he'll want to put on his whole show. He's very professional, and he probably would need more than just three minutes. HEARING EXAMINER DICKMAN: How do you want me to deal with that? MR. WRIGHT: Well, I think that -- you know, if I want to be consistent with my arguments, I would say Doug can get an opportunity to say what he's saying. I don't want to strangle people's sides at all. I just don't want to be surprised by a pile of evidence. HEARING EXAMINER DICKMAN: Okay. MR. WRIGHT: So I don't think there should be any -- I think it should follow the same exact structure as the previous hearing without any limits. I don't have any problem with limits on the public speaking. They can go. It's the evidence that's a problem. HEARING EXAMINER DICKMAN: So if I tell the public and including interested parties who have hired attorneys, look, don't repeat yourself. If you've already given me information, don't give it to me again, just tell me why I shouldn't, you know, not have a rehearing, because we're deciding whether or not to have a rehearing on this, in order for me to reconsider. So we're having a rehearing in order for me to reconsider the decision, but I'm choosing that I think that -- that that needs to be done publicly. I don't want -- the parties have to be recognized, but then you have the public, and I think there are interested parties there. Give instructions to them not to repeat anything else. Maybe they need to have legal argument, instruct -- I'm going to give strict instructions on that ten-day rule and share information with each other. You know, they need to -- people need to submit things to the County. The County is a party. 4/22/2021 Page 13 of 19 The County needs to share it with the petitioner so the petitioner's fully able to -- to address those issues. So I'm talking to the County now. Do you understand what I'm saying? MR. BELLOWS: Yes, we do. HEARING EXAMINER DICKMAN: Okay. We're going to follow that ten-day rule here so we can make sure that the County has the ability to look at it, review it, respond to it, Mr. Wright has the ability to review it, respond to it, and go along those lines. Then I want to ask this other question, is I believe that based on that, which would be very narrowly tailored to my decision and addressing specific issues in my decision, I think what would ultimately come out of that would be an amended decision. I would title it an amended decision; does that sound fair to you, Mr. Wright? MR. WRIGHT: Yes. I suppose whatever the caption is on the top, if it says this hereby supersedes and replaces the prior one, it would have the same effect. I leave that to you and wouldn't have a problem with the format. HEARING EXAMINER DICKMAN: Right. I think it's really important that folks understand there was a decision rendered, rendered timely, but a new decision is superseding that one. If they're both called decision, it could be confusing. So I'm going to caption it as amended decision, and to what extent things are amended will be described in there. Okay? MR. WRIGHT: Yes. HEARING EXAMINER DICKMAN: I'm trying to think of anything else. I am going to let the public speak here, but I do want to keep it shorter in terms of -- because we're just dealing with whether or not to grant this issue. It's -- we're not talking about substantive issues here. We're talking about procedural under the code that allows for reconsideration and a rehearing on this in order for me reconsider it. So first of all, County, do you all have any objections or are you -- what's your position on this? MR. BELLOWS: For the record, Ray Bellows, Zoning Manager. I believe the reconsideration and rehearing process is vital for the Hearing Examiner. It's been my experience when the same type of petition is presented to the Collier County Planning Commission, before they take a vote and motion, they open it up for discussion and dialogue before the members so the applicant can hear their thought process and could ask for a continuance. In a situation like this, the Hearing Examiner renders a decision after the meeting is closed, so it's harder for them to determine whether they should ask for a continuance to address that new information, and since it was so much in this case, I think this process is designed for this kind of situation. HEARING EXAMINER DICKMAN: Okay. That's -- I think that's a good characterization of the difference between having one person sitting here as examiner, quasi-judge, versus having a board, and a board reviewing and going through the quasi-judicial procedure, then the applicant had the benefit of all the dialogue and discourse among board members and things like that. There is good and bad in both processes, and to the extent that I've read the code and the ordinances, you know, again, I think it's a smart move on the County's -- the County's side to be able to, you know, introduce a Hearing Examiner in their ordinances. I want to make it clear in the record that I'm not an employee of the County. I don't have an office here at the County. I don't sit here in the planning department and review the staff report with them, or write the staff report, or have meetings with people at all. I don't. I just don't do that. So there's no way for me to, you know, kind of ferret through and guide these things so that when I get here, I've already made up my mind. I just don't think that's fair. I don't think that's what the intent of the codes are. I'm trying to put them together with what I know as an attorney, and in all fairness. So I think you are absolutely right, the venue is different in front of a board or a commission, rather than one person sitting as a Hearing Examiner. Hearing examiners are all over the place, lots of local governments use hearing examiners for certain jurisdictional issues, and they work quite well. 4/22/2021 Page 14 of 19 So I do think that it's appropriate to have a rehearing on this, but not a complete full-blown rehearing on this issue, but keep it on point to what I put in my written decision and guide me along in terms of the three -- the section, and I'm referring to Chapter 9, just for the public's understanding. I'm referring to Chapter 9 of the Land Development Code/Administrative Procedures Manual, just so the public understands that the County has codes and ordinances, and it has Land Development Codes, but it has also utilized its authority and powers to develop what are called administrative procedures, which really sort of unpacks a lot of how they -- how the Land Development Code and ordinances are going to be administered, so in that on Page 239, I'm looking at No. 1, which is entitled public hearing reconsideration of matter by Hearing Examiner, so there it is right there. I want to focus on that at the -- at the hearing, but before I do that, I want to open it up to any members of the public, if anyone's here, and I want to keep it very short, and very short only to the procedures for this reconsideration. So is anyone here in the audience as a -- that wants to speak to this? MR. YOUNGBLOOD: We have one speaker in the audience and we also have two speakers online. HEARING EXAMINER DICKMAN: Okay. Very good. So let's keep it brief, please. The gentleman in the audience if you want to come up to the gray podium, and we'll give you three minutes. MR. HOLDEN: All right to remove the mask? HEARING EXAMINER DICKMAN: Yeah, that's fine. Make sure you put it back on when you leave. MR. HOLDEN: John Holden. I have to agree with everything he says, but you also got to consider the same things that -- HEARING EXAMINER DICKMAN: If you can address to me. MR. HOLDEN: -- he was saying the same thing also happened to us as well. We were unprepared for some of the things they presented. HEARING EXAMINER DICKMAN: Okay. MR. HOLDEN: We didn't have some of the evidence that we wished that we had. We had the same issues, but I don't think we need to have another rehearing to just keep dragging this out and out. I mean, I had several days of my own already wasted on this issue. We've got more evidence as well. We've got more evidence to debunk the first responder aspect of it we've presented. We can have this rehearing, and after this rehearing, then there will be another appeal, it will be drug out again. There will be more evidence that's presented at the next hearing and they're going to want to have an appeal for that one and discuss that one. It's just going to keep going on and on and on. You made a decision, and like you said the -- you know, the code is the standard, and the variance is part of the code. We need to stick with what's there, and not continue this thing out for the next two years. If they've already got another site that they're going to possibly do, I don't know what they need a variance now for anyway, if you're going to put it up for a couple months, take it back down and put it somewhere else; that has nothing to do with the rehearing, but, again, I'm opposed to the rehearing. HEARING EXAMINER DICKMAN: I understand. Thank you. Thank you. Online? MR. YOUNGBLOOD: Our first speaker is Doug Lewis. Mr. Lewis, if you want to unmute your microphone. I also have Melanie Penner right after Mr. Lewis. MR. LEWIS: Good morning. Thank you, Mr. Wright. Thank you, Hearing Examiner Dickman. I'm Doug Lewis with the Thompson Lewis Law Firm. HEARING EXAMINER DICKMAN: Mr. Lewis, could you speak a little louder? We have a court reporter that needs to capture your statement. MR. LEWIS: Thank you, Hearing Examiner Dickman. I am Doug Lewis. I'm with the Thompson Lewis Law Firm appearing today on behalf of Mr. Smith and Mr. Sherf. I would ask for today's purposes under Renard with the County that we be recognized for the record that we are, I agree, adversely affected parties and -- (A court reporter interruption was had. The proceedings continued as follows:) 4/22/2021 Page 15 of 19 HEARING EXAMINER DICKMAN: Mr. Lewis, time out. One second. Is there a -- is this an issue here where the volume needs to go up here? This needs to captured. One second, please. All right. Let's try that. Continue, please. MR. LEWIS: Can you hear me now? Is this better? HEARING EXAMINER DICKMAN: Much better. Thank you. MR. LEWIS: Thank you. Thank you, Mr. Wright. Thank you, Hearing Examiner Dickman. I'm Doug Lewis for the record with the Thompson Lewis Law Firm. I'm appearing today on behalf of Richard Smith and David Sherf. They are affected property business owners, and they are adjacent to that proposed tower, and their rights are uniquely affected. I just wanted to say that for purposes of this motion this would be an item that they would, in my view and opinion, would be a party that would be very adversely affected. We need to be able to, on procedural grounds, I agree we need to be able to make the procedural arguments, preserve our appeal rights. I do think you made some good observations. There is a need, I think, to balance the distinction between parties who are agrieved or parties who are affected, and essentially have a right to file an appeal in court, and those who don't have standing to pursue, I think that's what you articulated. I think that's why counties and municipalities and hearing examiners are wise not to limit the ability of individuals to get the completed record, so thank you for doing that. I sent yesterday -- I just was retained -- just learned about the rehearing. I sent a request to staff, and the request was dated April 21st. I said in reviewing the agenda for the item, the only document I can find in the backup was an item under -- it was a one-page, Page 159 in the packet. It was under Item 4A. I'd asked staff if there was any additional documentation as a part of the motion for reconsideration. I'd asked that if you have that, please provide that. I would presume that should have been in the packet that was disclosed to the public. I also asked whether they could confirm when the motion was filed. The one that I can see was a document dated April 13th, which is the County's processing of the motion or agreeing to rehearing; that's beyond the 30-day requirement. I'm a little bit perplexed. I do agree we need to be substantively fair, and there needs to be fundamental fairness, and so on those grounds, I am objecting. I think at a minimum in order to adequately prepare, I really had no idea what Mr. Wright was going to be discussing today. So I would request a continuance on this motion and discuss with you his reasonings. Now, going to the issue of the reasons, I think it's interesting, the dichotomy, because your ruling was pretty clear. It says there was simply not enough information, and I'm quoting from Page 6 of 7. The irony, as I understand it, I haven't read his motion, but essentially he's saying that we presented too much information, and I think you were astute and correct in your analysis that there was not enough information, and I think the code is -- if you look at your code, there are three items that you outlined to grant an appeal. The third I think is not applicable here, as you discussed. The first two are the ones that were deciding. The second one is newly-discovered evidence which by due diligence could have been discovered in time for the original hearing. I think your code clearly does not allow for do-overs when not enough information was provided by the applicant as it relates to hardship, and irrespective of other issues, your ruling was very -- centered very squarely on the issue of hardship. You cited the case law, which you said you independently reviewed, and I concur with your review of the case law, and part of the decision you indicated the hardship necessary to obtain a variance may not be found unless there's a showing that under the existing zoning, no reasonable use can be made of the property, and you said there was no evidence in the record that the property -- you said there is evidence that it's irregular -- or you said nothing suggested a wireless cell tower is the only permitted use of the property in the zoning district. You also indicated that the focus shouldn't be on what the applicant wants. It should be focussed 4/22/2021 Page 16 of 19 on the property, and the particular uses of the property, and whether or not no reasonable use can be made of the property, and particularly as you cited the property owner purchased this property in this case under contract and knowingly acknowledges the restrictions and imputedly disregarded those restrictions and claimed a hardship. (A court reporter interruption was had. The proceedings continued as follows:) HEARING EXAMINER DICKMAN: Mr. Lewis -- MR. LEWIS: So I think your ruling centered on the law. It was centered on the fact that they just didn't address the evidence that they could have provided on the appeal. HEARING EXAMINER DICKMAN: Mr. Lewis -- Mr. Lewis. MR. LEWIS: I think for those reasons, I would ask that you deny -- HEARING EXAMINER DICKMAN: Mr. Lewis, can you hear me at all? MR. LEWIS: Hello? HEARING EXAMINER DICKMAN: Can you hear me at all? MR. LEWIS: I can hear you now. HEARING EXAMINER DICKMAN: You are speaking so fast that our court reporter cannot hear what you're saying, and with all due respect, I'm here to decide whether or not to grant the reconsideration rehearing. I think you're going off the rails a bit into substantive issues. So, you know, why don't you wrap it up with regard to the criteria that I have in Chapter 9 of the Administrative Procedures Manual about whether to grant or deny the rehearing? So I'll give you -- MR. LEWIS: I apologize for speaking quickly. I just was conscious that you mentioned I needed to be quick. I needed to get that into the record. HEARING EXAMINER DICKMAN: True. I did say that. MR. LEWIS: In terms of the substance, these are procedural objections. They're tied to the criteria under Chapter 9, Article 9 of the Administrative Procedures. As I mentioned, the code says that newly-discovered evidence which by due diligence could not have been discovered in time for the original hearing is the standard. The code does not encourage a do-over. The code does not allow information that could have been presented, and, again, your decision, and I'm quoting your decision, indicated that there is no evidence in the record that the property is irregular, substandard or -- I'm sorry, there is evidence, but nothing to suggest that a wireless cellular tower is the only permitted use of the property, and I think that's the issue here, is that you found there is no hardship, and that information was based squarely on information provided at the hearing, provided by the applicant, by myself and our experts. We had two experts. Tom Barber appeared, he was with me when we came in October -- HEARING EXAMINER DICKMAN: Okay. You need to -- I need you to wrap it up. MR. LEWIS: -- when the original, and then it was rescheduled to November 12th. It was rescheduled to December 10th. It was rescheduled to January 15th. It was rescheduled to February 11th. HEARING EXAMINER DICKMAN: I need you to hurry up and please wrap it up, please. Please. MR. LEWIS: We used the PowerPoint which was delivered to staff on November -- in the November hearing. So that PowerPoint was available, and, you know, Tom was there, everybody knew Tom was involved. He was the planner that provided that testimony on the hardship, so I think clearly -- HEARING EXAMINER DICKMAN: If I can just summarize your -- what I'm hearing from you. It goes to the newly-discovered evidence, which by due diligence could have been discovered in time for the original hearing. I think that's what you're telling me. Okay. MR. LEWIS: Yes. I'm -- I hear nothing that -- HEARING EXAMINER DICKMAN: Stop, please. MR. LEWIS: Correct. Correct. Nothing that I've heard today addresses newly-discovered evidence of a hardship. HEARING EXAMINER DICKMAN: Mr. Lewis, you're about to be cut off. I mean, I've let 4/22/2021 Page 17 of 19 you go on and on but you're starting to repeat yourself. I understand your point. Thank you. Anybody else? MR. YOUNGBLOOD: Yes, we have two speakers, Melanie Penner followed by Mitchell Penner. One moment here. Ms. Penner, are you with us? MS. PENNER: This is Melanie Penner. Can you hear me? HEARING EXAMINER DICKMAN: Yes. MS. PENNER: Hi. My name is Melanie Penner and I reside at 1235 Sugarberry Street. I have two -- two points that I'd like to make. One is I felt that at the original hearing for this that you were very, very good at making sure that everyone involved felt that they were able to present the information they wanted to present, and that everyone felt they had a fair chance to refute during that hearing. We took a lot of time, and I felt that you -- you know, during that hearing, you said, hey, is everybody happy with what's been presented, their chance to refute, and I thought that everybody really agreed to that. So because -- because of that, I oppose a rehearing of this. The second point that I'd like to make is that as an average citizen of the county, it's quite difficult to stay up to current in what's going on in this case. I was told that I would be e-mailed the decision. I never heard anything from the County, and then last week I asked for an update on this case from the planner, Tim Finn, and the only thing that I got back from him was your original decision. I got nothing about the fact that this was going to be reheard. It's just scanning the agendas that I found out that this was on the agenda today for the appeal -- or for the request for rehearing. So it's very difficult to find information on this, and I just wanted to bring that up. But to wrap up, I oppose the rehearing. I felt that the first hearing, I thought everybody was represented, and everyone agreed that it was fair. So I'm just in opposition. Thank you. HEARING EXAMINER DICKMAN: Thank you for your comments. We have one more? MR. YOUNGBLOOD: Yes, Mitchell Penner is our final speaker on this item. MR. MITCHELL: Good morning, guys. It's Mitchell Penner. I reside at 1235 Sugarberry Street also. I agree with the speakers who've spoken earlier, the first, second and third speakers. Kind of surprised at the decision to potentially rehear this and it's -- you -- yeah. I want to -- I have a question about the ten days and what exactly has to be presented ten days before. Are we going to see Mr. Wright's PowerPoint presentation and a list of his witnesses ten days before the hearing that's going to be in the City View at our -- is the public expected the same -- to have the same -- because I don't remember seeing his PowerPoint presentation in City View ten days before, a list of his experts? How far are we going to go with this ten days and -- HEARING EXAMINER DICKMAN: Thank you. Thank you. MR. PENNER: That's what I have. HEARING EXAMINER DICKMAN: Thank you. Normally -- normally comments by the public are what they are, comments, and I don't need to respond to questions from the public, but for fundamental fairness the -- you know, at least on the agenda itself, it speaks to ten days. Again, the public is different than the parties, but I would ask that everyone observe that ten-day rule. We already know that the neighbors, or at least some of the neighbors, have a lawyer. Mr. Wright, if you would at least make sure that the County shares, or you directly share and share with the County. Let's keep in mind who the parties are and who the public is, and I'm not going to make a decision on whether or not somebody's adversely -- an adverse party or a member of the public, but I'm going to, as you know, I have the discretion to give flexibility where I see fit, and I do that for a reason. So, Ray, do you have any other comments? MR. BELLOWS: In regards to the ten-day public notice, the applicant's information is always uploaded into Accela and the agenda creator, so the public has the ability to access all those documents. HEARING EXAMINER DICKMAN: Okay. MR. BELLOWS: We will also provide, if they feel that they can't access that information from the web page, we can provide that on request, and we typically do that all the time. 4/22/2021 Page 18 of 19 HEARING EXAMINER DICKMAN: Okay. All right. So in this case let's make doubly sure that the system that the county uses called Accela has -- right? Am I saying that correctly? MR. BELLOWS: Accela. HEARING EXAMINER DICKMAN: -- has all of the documents that are going to be used at the hearing that will be part of the record. I don't -- and make sure that if someone, I guess Mr. Finn, or you, or somebody at the County, has an e-mail will respond to that, and if everybody on the subject line will actually put what this is, and not say, hey, what's going on. You know, I think it's really easy to overlook the amount of hundreds of e-mails the County gets, and if you can make sure that you make it clear that this is directed at this item. I think that we can get this information out. So I'm going to go ahead and grant the motion for rehearing/reconsideration, with the understanding that it is going -- it is not going to be a full, brand new whole hearing. I want it to be focused on the issues that are laid out in -- in the rehearing, whether mistake was made, whether newly-discovered evidence, things of that nature. I don't think we need to have a full-blown new hearing. I will take public testimony. I will give some lenience to folks that have, you know, participated with lawyers. I get the gist of this, obviously. I took my time writing the decision, but what I want to hear is any newly-discovered evidence that I need to hear or things that, Mr. Wright, your client as a party didn't have privy to and was not able to adequately respond to that, and that ultimately what I'm looking for is the ability to render a decision that is completely on point with the criteria, and I wouldn't want to render something that is missing some piece of competent substantial evidence. I think I've satisfied due process probably more than most, so that's what I'm looking for is the competent, substantial evidence piece as to the criteria. Is that a fair -- is that fair, Mr. Wright? MR. WRIGHT: That's very clear, yes. I appreciate that. It's fair. HEARING EXAMINER DICKMAN: If for some reason you guys have decided to move on to a different location, notify the County. Now we need to decide on the date. Do we have -- I mean, is the next agenda full? What are we looking at? The 13th is the next one, May 13th? I'm not expecting this one to be the amount of time that we took last time. So can we put it on the 13th? MR. BELLOWS: One second. May 13th we have three items. HEARING EXAMINER DICKMAN: Okay. So why don't we put it on the 13th. Is that okay with you? MR. WRIGHT: Yes, sir, it is. HEARING EXAMINER DICKMAN: All right. So that's what we'll do, and it will be listed as a -- please reference in the notice where it's coming from in the Administrative Procedures Manual, so that it's understood this is a rehearing on a motion for reconsideration. So today was simply to decide whether or not to rehear it. I have not heard or considered any substantive issues whatsoever; that will be done on the hearing on the 13th. Any other questions? Have we covered everything? MR. WRIGHT: I think so. I just wanted to say thanks for getting into the detail today, and the reasoning behind it, and I don't want to burden you. I don't want to burden staff, but this is something that we have to do to preserve our rights. My last comment is, our Plan A, like I said at the beginning, is to find another site and not come back, and as soon as we've confirmed that, I'll call staff and call off everything; that's our Plan A. We'll strive towards that. HEARING EXAMINER DICKMAN: And I appreciate that, but you have a right to file a motion for reconsideration, and you exercised that right; that's why we're here. This is not me acting beyond the scope of my ability or jurisdiction. You have that ability, you've exercised it, and here we are. Okay. Unless there is anything else to be said, we're going to close this hearing and schedule the rehearing of this item, which will ultimately end up with I'm going to title an amended -- amended decision. 4/22/2021 Page 19 of 19 Whether it goes your way, not your way, whether I change my mind, I don't know, okay, but I'm going to be looking for something related to that rehearing criteria. Okay? MR. WRIGHT: Understood, yes. Thank you. HEARING EXAMINER DICKMAN: Thank you, everyone, appreciate your indulgence. And I believe unless we have anything else on the agenda we're going to adjourn. Anything else? Okay. I see a lot of head nodding in the negative. Nothing else to talk about. I'm done then. So we're adjourning this meeting. Thank you. * * * * * * There being no further business for the good of the County, the meeting was adjourned by order of the Hearing Examiner at 10:33 a.m. COLLIER COUNTY HEARING EXAMINER ___________________________________________ ANDREW W.J. DICKMAN, HEARING EXAMINER These minutes approved by the Hearing Examiner on _______, as presented _______ or as corrected _________. TRANSCRIPT PREPARED ON BEHALF OF U.S. LEGAL SUPPORT, INC., BY JANICE R. MALINE, COURT REPORTER AND NOTARY PUBLIC. 45/26/21