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BCC Minutes 02/24/2009 R February 24, 2009 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, February 24, 2009 LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special district as has been created according to law and having conducted business herein, met on this date at 9:00 a.m., in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Donna Fiala Fred Coyle Frank Halas Tom Henning Jim Coletta ALSO PRESENT: Jim Mudd, County Manager Sue Filson, Executive Manager to the BCC Jeffrey A. Klatzkow, County Attorney Page 1 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS and COMMUNITY REDEVELOPMENT AGENCY BOARD (CRAB) AGENDA February 24, 2009 9:00 AM Donna Fiala, BCC Chairman Commissioner, District 1; CRAB Chairman Fred W. Coyle, BCC Vice-Chairman Commissioner, District 4 Jim Coletta, BCC Commissioner, District 5; CRAB Vice-Chairman Frank Halas, BCC Commissioner, District 2 Tom Henning, BCC Commissioner, District 3 NOTICE: ALL PERSONS WISHING TO SPEAK ON ANY AGENDA ITEM MUST REGISTER PRIOR TO SPEAKING. SPEAKERS MUST REGISTER WITH THE COUNTY MANAGER PRIOR TO THE PRESENTATION OF THE AGENDA ITEM TO BE ADDRESSED. ALL REGISTERED SPEAKERS WILL RECEIVE UP TO THREE (3) MINUTES UNLESS THE TIME IS ADJUSTED BY THE CHAIRMAN. COLLIER COUNTY ORDINANCE NO. 2003-53, AS AMENDED BY ORDINANCE 2004-05 AND 2007-24, REQUIRES THAT ALL LOBBYISTS SHALL, BEFORE ENGAGING IN ANY LOBBYING ACTIVITIES (INCLUDING, BUT NOT LIMITED TO, ADDRESSING THE BOARD OF COUNTY COMMISSIONERS), REGISTER WITH THE CLERK TO THE BOARD AT THE BOARD MINUTES AND RECORDS DEPARTMENT. REQUESTS TO ADDRESS THE BOARD ON SUBJECTS WHICH ARE NOT ON THIS AGENDA MUST BE SUBMITTED IN WRITING WITH EXPLANATION TO THE COUNTY MANAGER AT LEAST 13 DAYS PRIOR TO THE DATE OF THE MEETING AND WILL BE HEARD UNDER "PUBLIC PETITIONS." February 24, 2009 Page 1 ANY PERSON WHO DECIDES TO APPEAL A DECISION OF THIS BOARD WILL NEED A RECORD OF THE PROCEEDINGS PERTAINING THERETO, AND THEREFORE MAY NEED TO ENSURE THAT A VERBATIM RECORD OF THE PROCEEDINGS IS MADE, WHICH RECORD INCLUDES THE TESTIMONY AND EVIDENCE UPON WHICH THE APPEAL IS TO BE BASED. IF YOU ARE A PERSON WITH A DISABILITY WHO NEEDS ANY ACCOMMODATION IN ORDER TO PARTICIPATE IN THIS PROCEEDING, YOU ARE ENTITLED, AT NO COST TO YOU, TO THE PROVISION OF CERTAIN ASSISTANCE. PLEASE CONTACT THE COLLIER COUNTY FACILITIES MANAGEMENT DEPARTMENT LOCATED AT 3301 EAST TAMIAMI TRAIL, NAPLES, FLORIDA, 34112, (239) 252-8380; ASSISTED LISTENING DEVICES FOR THE HEARING IMP AIRED ARE AVAILABLE IN THE COUNTY COMMISSIONERS' OFFICE. LUNCH RECESS SCHEDULED FOR 12:00 NOON TO 1:00 P.M. 1. INVOCATION AND PLEDGE OF ALLEGIANCE A. Father Tim Navin, San Marco Catholic Church 2. AGENDA AND MINUTES A. Approval of to day's regular, consent and summary agenda as amended. (Ex Parte Disclosure provided by Commission members for consent and summary agenda.) B. January 27,2009 - BCC/Regular Meeting C. January 30,2009 Value Adjustment Board Hearing with Special Magistrate Mark Pelletier 3. SERVICE AWARDS: (EMPLOYEE AND ADVISORY BOARD MEMBERS) 4. PROCLAMATIONS A. Proclamation designating March 1,2009 as World Friendship Day. To be accepted by Liz Lloyd and Darrell Anderson, FFSWFL Club Members. February 24, 2009 Page 2 5. PRESENTATIONS A. Presentation of a Donation in the amount of $1,000.00 from the Disabled Veterans Foundation to the Collier County Veterans Council (to be presented by Bobby Brooks, Operations Manager for Disabled Veterans Foundation; to be accepted by Jim Elson, President of the Collier County Veterans Council). B. Presentation by Wright Construction Group on the construction status of the new Sheriffs Fleet Maintenance Facility. C. This item to be heard at 1 :00 p.m. Presentation by Lampl Herbert Consultants, Inc. on behalf of Miami-Dade Aviation and Parks and Recreation on the Training and Transition (TNT) Airport Lands for potential Off-Highway Vehicle (OHV) use. 6. PUBLIC PETITIONS A. Public petition request by Jennifer Bermudez to discuss a fence variation matter. B. Public petition request by William Poteet to discuss sound invasion on east side of 1-75 between Golden Gate Parkway and Pine Ridge Road. C. Public petition request by Michael Conway to discuss cost of unwarranted calls to Sheriff Department, Code Enforcement, Animal Control and Waste Management. D. Public petition request by Joanie Griffin to discuss a permitting issue at Joanies Blue Crab Cafe. E. Public petition request by Francia Stevens to discuss The Gabriel Project. Item 7 and 8 to be heard no sooner than 1 :00 p.m.. unless otherwise noted. 7. BOARD OF ZONING APPEAL 8. ADVERTISED PUBLIC HEARINGS February 24, 2009 Page 3 A. This item requires that all participants be sworn in and ex parte disclosure be provided by Commission members: PUDZ-A-2006-AR- 10325: Wynn Properties, Inc. and Carbone Properties of Naples, Ltd Liability Co., represented by Robert J. Mulhere, AICP ofRW A, Inc., and R. Bruce Anderson, of Roetzel and Andress LP A, and Carbone Properties of Naples, LLC, represented by R. Bruce Anderson, Esq., are requesting a rezone from Planned Unit Development (PUD) to Commercial Planned Unit Development (CPUD) for the Sungate Center CPUD. The project proposes a maximum of 83,000 square feet of commercial leasable floor area. The subject 10.0 acres are located on the northwest comer of the intersection of Green Boulevard and Collier Boulevard (CR 951) in Section 15, Township 49 South, Range 26 East, Collier County, Florida (CTS). B. CPSP-2008-6: Petition Requesting that the Board of County Commissioners adopts an Ordinance amending the Capital Improvement Element of the Collier County Growth Management Plan, Ordinance 89-05, as amended, to approve their submittal to the Florida Department of Community Affairs, to direct staff to initiate certain GMP amendments which ensue from these amendments to the Capital Improvement Element, and to consider Collier County Planning Commission policy recommendations. 9. BOARD OF COUNTY COMMISSIONERS A. Appointment of member to the Clam Bay Advisory Committee. B. Appointment of member to the Affordable Housing Advisory Committee. C. Appointment of member to the Golden Gate Community Center Advisory Committee. D. This item to be heard at 11 :30 a.m. Presentation by the Clerk of Courts to update the Board of County Commissioners on the County Investment Portfolio. 10. COUNTY MANAGER'S REPORT A. This item was continued from the January 13~ 2009 BCC Meetin2 and the February 1 O~ 2008 BCC Meetin2 and was further continued to the February 24~ 2009 BCC Meetin2. This item requires that all participants be sworn in and ex parte disclosure be provided by February 24, 2009 Page 4 Commission members. Recommendation to deny the Alternative Impact Fee Appeal submitted by Tamiami Square of Naples, LLC (Developer) and authorize the Chairman to execute a notice to the Developer for the collection of the Collier County Water-Sewer District (CCWSD) Alternative Impact Fee calculation of$120,904 for Building 300. (Tom Wides, Director Fiscal Operations, Public Utilities) B. This item to be heard at 10:30 a.m. Recommendation that the Board of County Commissioners provide direction to the County Attorney and the County Manager, or his designee, related to the option to change the requirements for the assessment of impact fees for changes of use in existing buildings. (Amy Patterson, Impact Fee and Economic Development Manager, Business Management and Budget Office, CDES) C. This item continued from the February 10~ 2009 BCC Meetin2. Recommendation that the Board of County Commissioners approves the Wetland Mitigation and Panther Habitat Unit Option Agreement with the Barron Collier Companies and authorizes the Chairman to sign the document. Project #60044. (Norman Feder, Transportation Services Administrator) D. Recommendation to adopt the FY10 Budget Policy and to approve a resolution directing the Sheriff, the Supervisor of Elections and the Clerk to provide their FY10 budget submittals by May 1,2009. (John Yonkosky, Office of Management and Budget Director) 11. PUBLIC COMMENTS ON GENERAL TOPICS 12. COUNTY ATTORNEY'S REPORT 13. OTHER CONSTITUTIONAL OFFICERS 14. AIRPORT AUTHORITY AND/OR COMMUNITY REDEVELOPMENT AGENCY A. Recommendation to the Community Redevelopment Agency (CRA) to approve the 2008 annual performance evaluation for the Immokalee CRA Executive Director and authorize a 4.2 percent cost of living adjustment. February 24, 2009 Page 5 15. STAFF AND COMMISSION GENERAL COMMUNICATIONS ------------------------------------------------------------------------------------------------------------ 16. CONSENT AGENDA - All matters listed under this item are considered to be routine and action will be taken by one motion without separate discussion of each item. If discussion is desired by a member of the Board, that item(s) will be removed from the Consent Agenda and considered separately. ------------------------------------------------------------------------------------------------------------ A. COMMUNITY DEVELOPMENT & ENVIRONMENTAL SERVICES 1) Recommendation to approve a resolution establishing the Horizon Study Oversight Committee as provided for during the January 13, 2009 BCC public hearing. 2) Recommendation to approve final acceptance of the water and sewer utility facilities for Chase Preserve of Lely Resort. 3) Request to increase the time frame associated with the contract to allow for the Van Buskirk, Ryffel & Associates to provide the updating of the baseline parcel data reflecting the land use changes approved from January 2007 through March 2009. 4) This item requires that ex parte disclosure be provided by Commission Members. Should a hearin2 be held on this item~ all participants are required to be sworn in. Recommendation to approve for recording the final plat of Amador at Fiddlers Creek. 5) Recommendation to approve final acceptance of the water and sewer utility facilities for Falls of Porto fino. 6) To accept final and unconditional conveyance of the water utility facility for La Playa Beach Resort. 7) Recommendation to approve final acceptance of the water and sewer utility facilities for Cottesmore. B. TRANSPORTATION SERVICES February 24, 2009 Page 6 1) Recommendation to award Bid #09-5180 for construction of Bayshore Drive and Thomasson Drive Stormwater Improvements, Project No. 51134.1, to Kyle Construction, Inc. in the amount of$59,153.20 plus a ten percent contingency, and to approve the necessary budget amendment. 2) Recommendation to approve the Program Management Plan (PMP) outlining the projects that will be eligible for Federal Transit Administration #5316 & #5317 Program Grants. 3) Recommendation to approve Change Order No.1 to Professional Service Agreement No. 07-4133 in the amount of $120,460.20 with PB America, Inc., for the design ofNorthbrooke Drive improvements from northern terminus of the Bridge to Mill Creek Road and Valewood Drive Extension from Immokalee Road to Autumn Oaks Lane, Project No. 60106. 4) Recommendation that the Board of County Commissioners review and approve an amendment to the 2008 Transportation Disadvantage Service Plan (TDSP) to allow for joint meetings between Collier and Lee County Local Coordinating Boards (LCB). 5) Resolution authorizing the Chairman of the Board of County Commissioners to execute a Transportation Post Project Maintenance Agreement with the Florida Department of Transportation (FDOT), for the maintenance of a pedestrian bridge and guardrail Safe to School project on 20th Place SW between 50th Street SW and 50th Terrace SW. C. PUBLIC UTILITIES 1) Recommendation to approve award of Request for Proposal Number 09-5l5l Fixed Term Instrumentation and Controls Engineering Services. 2) Recommendation to approve Amendment AO 1 to the existing Agreement No. ML070554 between the county and the South Florida Water Management District that will reduce the fiscal year 2009 funding by $43,227, and to approve the associated budget amendment. February 24, 2009 Page 7 D. PUBLIC SERVICES 1) Recommendation for the Board of County Commissioners to adopt a Resolution to declare a public purpose and to allow Collier County Parks and Recreation to create a Donation Fund for the solicitation, receipt and expenditure of donations to Collier County Parks and Recreation to benefit youths, adults and senior citizens. 2) Recommendation to award Bid No. 09-5166, East Naples Community Park Soccer Field, at a cost of $529,364.63 to Professional Building Systems. 3) Recommendation that the Board of County Commissioners approves, and authorizes the Chairman to sign, ten (10) lien agreements for deferral of lOO% of Collier County impact fees for owner-occupied affordable housing dwelling units located in Collier County. 4) Present to the Board of County Commissioners a summary of the Impact Fee Deferral Agreements recommended for approval in FY09, including the total number of Agreements approved, the total dollar amount deferred and the balance remaining for additional deferrals in FY09. 5) Recommendation that the Board of County Commissioners approves and authorizes the Chairman to sign, seven (7) Developer lien agreements for deferral of 100% of Collier County impact fees for owner-occupied affordable housing units located in Collier County. 6) Recommendation that the Board of County Commissioners recognize and approve the expenditure of Housing and Urban Development (HUD) funds in the amount of$84,375.00 for the Golden Gate Senior Meals Program which is administered by the Department of Housing and Human Services (HHS). This program is an expansion to an existing HHS program which provides nutritious meals to low-income seniors in Collier County. 7) Recommendation for the Board of County Commissioners to approve and authorize the Chairman to sign an agreement between Collier County Board of County Commissioners and the Physician Led Access Network (PLAN) in the amount of $50,000 to provide medical February 24, 2009 Page 8 referral services for low-income residents in Collier County. 8) Recommendation for the Board of County Commissioners to Award Request for Quotation #09-PR-GGCP-WS Golden Gate Community Park Water Slide under Contract #06-3971 Annual Contract for General Contractor Services, in the Amount of $296,971 to Professional Building Systems for replacement of existing structure at Golden Gate Community Park Aquatic Center. 9) Recommendation that the Board of County Commissioners approve past expenses for non-ethanol gasoline for County Parks and Marinas. 10) Recommendation for the Board of County Commissioners to waive the formal competitive process and approve and authorize the Chairman to sign an agreement for $160,000 with the Health Planning Council of Southwest Florida as a sole source provider for a health information technology project in conjunction with the Physician Led Access Network (PLAN). E. ADMINISTRATIVE SERVICES 1) Recommendation for the Board of County Commissioners to authorize the Chairman to sign a Safe Harbor Agreement with the U.S. Fish and Wildlife Service for specialized management of the Conservation Collier Nancy Payton Preserve. 2) Recommendation to approve an Agreement for Sale and Purchase with Edward J. Tauber and Mary P. Tauber for 5.0 acres under the Conservation Collier Land Acquisition Program, at a cost not to exceed $80,300. 3) Recommendation to approve an Agreement for Sale and Purchase with Juan Rey for 5.66 acres under the Conservation Collier Land Acquisition Program, at a cost not to exceed $91,lOO. 4) Recommendation to approve an Agreement for Sale and Purchase with Julio C. Ponce for 1.14 acres under the Conservation Collier Land Acquisition Program, at a cost not to exceed $19,300. February 24, 2009 Page 9 5) Recommendation to approve an Agreement for Sale and Purchase with Orlando Pacheco for 2.27 acres under the Conservation Collier Land Acquisition Program, at a cost not to exceed $37,900. 6) Recommendation that the Board of County Commissioners approves an Agreement to provide a maximum expenditure of$28,746 from the GAC Land Trust Fund to the Big Corkscrew Island Fire Control and Rescue District for the purchase of Fire Shelters and Equipment. 7) Recommendation to approve a change in wastewater treatment service for the Collier County Government Complex from the City of Naples to the Collier County Water-Sewer District and to approve the Interlocal Service Agreement and Accord and Satisfaction with the City of Naples to supersede an existing 1977 Interlocal Agreement, as amended. 8) Recommendation to approve a Budget Amendment to the Freedom Memorial Fund (620) in the amount of $70,000 in order to begin construction on the Collier County Freedom Memorial. F. COUNTY MANAGER 1) Approve budget amendments. 2) Recommendation to adopt a resolution approving amendments (appropriating grants, donations, contributions or insurance proceeds) to the Fiscal Year 2008-09 Adopted Budget. 3) Recommendation that the Board of County Commissioners Award Bid #09-5175 for Horticulture Debris Hauling and Disposal to County Waste, Inc. 4) Recommendation to approve the Southwest Florida Consortium 2009 Legislative Priorities which will be presented by participating County Commissioners to Legislative Delegation members in Tallahassee throughout the 2009 Legislative Session. February 24, 2009 Page 10 G. AIRPORT AUTHORITY AND/OR COMMUNITY REDEVELOPMENT AGENCY 1) Recommendation for the CRA Board to reject the sole response received for Request for Proposal (RFP) 08-5112 from Kaye Homes to construct, market and sell moderately priced houses on CRA- owned land; and to approve the CRA staff to release a new RFP at a later date through the Collier Purchasing Department. 2) Recommendation that the Board of County Commissioners approve a budget amendment in the amount of $1,495,000.00 to recognize USDA grant revenue in the amount of $495,000.00 and transfer $l,OOO,OOO.OO from Airport Authority Reserves to the project for the construction of a 20,000 square foot manufacturing facility at the Immokalee Regional Airport. 3) To approve and execute a Site Improvement Grant Agreement(s) between the Collier County Community Redevelopment Agency (CRA) and a Grant Applicant(s) within the Bayshore Gateway Triangle Community Redevelopment area (2255 Davis Boulevard). 4) To approve and execute Shoreline Stabilization Grant Agreement(s) between the Collier County Community Redevelopment Agency and a Grant Applicant(s) within the Bayshore Gateway Triangle Community Redevelopment area. (2772 Riverview Drive) 5) To approve and execute Shoreline Stabilization Grant Agreement(s) between the Collier County Community Redevelopment Agency and a Grant Applicant(s) within the Bayshore Gateway Triangle Community Redevelopment area. (2736 Riverview Drive) 6) Request that the Collier County Redevelopment Agency approve the application and recipient agreement for the Immokalee Community Redevelopment Agency (CRA) Commercial Faade Improvement Grant Program for reimbursement of $20,000 for B&B Cash Grocery Stores, Inc. for improvement to the Handy Food Store #92 located at 401 South First Street in Immokalee, Florida. February 24, 2009 Page 11 H. BOARD OF COUNTY COMMISSIONERS 1) Commissioner Fiala requests Board approval for reimbursement regarding attendance at a function serving a Valid Public Purpose. Will attend the Fourth Annual Fashion Show and Silent Auction on March 20,2009 at The Club at the Strand in Naples, FL. $80.00 to be paid from Commissioner Fiala's travel budget. 2) Commissioner Coletta requests Board approval for payment to attend a function serving a valid public purpose. Commissioner Coletta attending the Italian American Society of South West Florida Reverse Raffle and College Scholarship Fundraiser on February 22, 2009 at the Country Club of Naples. $100 Donation benefits local students for college scholarships and admits two. $50 to be paid from Commissioner Coletta's travel budget. 3) Commissioner Coletta requests Board approval for payment to attend a function serving a valid public purpose. Commissioner Coletta attended the Boy Scouts of America Southwest Florida Council Executive Board (Member) Retreat in Fort Myers on January 24, 2009. $5 luncheon to be paid from Commissioner Coletta's travel budget. I. MISCELLANEOUS CORRESPONDENCE J. OTHER CONSTITUTIONAL OFFICERS 1) To obtain Board approval for disbursements for the period of January 30, 2009 through February 06, 2009 and for submission into the official records of the Board. 2) To obtain Board approval for disbursements for the period of February 7,2009 through February l3, 2009 and for submission into the official records of the Board. K. COUNTY ATTORNEY 1) Recommendation that the Board of County Commissioners ratify a purchase order increase exceeding $50,000 for the Santa Barbara Boulevard Extension project (Project No. 60091) in accordance with February 24, 2009 Page 12 the Collier County Purchasing Policy (Fiscal Impact $50,000). 2) Recommendation that the Board of County Commissioners authorizes application for tax deeds for thirty-two (32) County-held tax certificates and the forwarding of a written notice to proceed with tax deed applications to the Tax Collector. 3) This item requires that ex parte disclosure be provided by Commission Members. Should a hearin2 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 2.03.01.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. 17. SUMMARY AGENDA - THIS SECTION IS FOR ADVERTISED PUBLIC HEARINGS AND MUST MEET THE FOLLOWING CRITERIA: 1) A RECOMMENDATION FOR APPROVAL FROM STAFF; 2) UNANIMOUS RECOMMENDATION FOR APPROVAL BY THE COLLIER COUNTY PLANNING COMMISSION OR OTHER AUTHORIZING AGENCIES OF ALL MEMBERS PRESENT AND VOTING; 3) NO WRITTEN OR ORAL OBJECTIONS TO THE ITEM RECEIVED BY STAFF, THE COLLIER COUNTY PLANNING COMMISSION, OTHER AUTHORIZING AGENCIES OR THE BOARD, PRIOR TO THE COMMENCEMENT OF THE BCC MEETING ON WHICH THE ITEMS ARE SCHEDULED TO BE HEARD; AND 4) NO INDIVIDUALS ARE REGISTERED TO SPEAK IN OPPOSITION TO THE ITEM. FOR THOSE ITEMS, WHICH ARE QUASI- JUDICIAL IN NATURE, ALL PARTICIPANTS MUST BE SWORN IN. A. This item requires that all participants be sworn in and ex parte disclosure be provided by Commission members. V A-2008-AR-13756 Lee Wyatt, represented by Lauren Barber of Turrell and Associates, is requesting a front yard setback Variance for principal structures in the Mobile Home (MH) Zoning District from 25 feet to 16 feet, as required by Land Development Code (LDC) Section 4.02.01, Setbacks for Base Zoning Districts, to permit a nine-foot setback; and a site alteration Variance to impact mangroves, pursuant to LDC Subsection 9.04.02.B.l. The February 24, 2009 Page 13 approximately 0.14-acre subject property is located on Lot 77, Otter Avenue, in Plantation Island, of Section 24, Township 53 South, Range 29 East Collier County, Florida. CTS B. CPSP-2007-6: Petition requesting an amendment to the Potable Water Sub- Element of the Public Facilities Element of the Growth Management Plan (GMP), to add reference in Policy 1.7 to the proposed Ten-Year Water Supply Facilities Work Plan; approve the 10-Year Water Supply Facilities Work Plan as proposed; and direct staff to implement the CCPC's recommendations. (Adoption hearing) C. Recommendation that the Board of County Commissioners adopts an Ordinance amending Ordinance No. 2002-27, as amended, which created the Pelican Bay Municipal Service Taxing and Benefit Unit, by providing for waiver of mail ballot requirements in the event the number of nominees for appointment to the Pelican Bay Services Division Board in a particular category does not exceed the number of open positions for that category. 18. ADJOURN INQUIRIES CONCERNING CHANGES TO THE BOARD'S AGENDA SHOULD BE MADE TO THE COUNTY MANAGER'S OFFICE AT 252-8383. February 24, 2009 Page 14 February 24, 2009 MR. MUDD: Ladies and gentlemen, if you'd please take your seats. Madam Chair, Commissioners, you have a hot mike. CHAIRMAN FIALA: Thank you. Welcome to our Board of County Commissioners' meeting this fine day in February, the 24th. And I ask you all to please rise for the invocation by Father Tim Navin from San Marco Catholic Church, and then we will say the Pledge of Allegiance, which will be led by our own Commissioner Halas. FATHER NAVIN: Let us pray. Dear God, you blessed this nation from the beginning, you blessed us with courageous people who stand up for the idea of freedom, you blessed us with their foundational documents to keep us on the path of freedom, and you blessed us with their children to -- who held fast to the purpose of freedom. Thank you, God, for these blessings. Help us to never forget them and take them for granted. Help us to hold onto our ideals, to cherish them and to fight for them. Help us to never give them up, either to sudden onslaught or incremental compromise. Help us to always remember we were born to freedom and to never surrender it. Amen. (The Pledge of Allegiance was recited in unison.) CHAIRMAN FIALA: Thank you. And Mr. Mudd, will you lead us through the agenda, please. Item #2A TODA Y'S REGULAR, CONSENT AND SUMMARY AGENDA AS AMENDED - APPROVED AND/OR ADOPTED W/CHANGES MR. MUDD: Yes, ma'am. Agenda changes, Board of County Commissioners' meeting, February 24, 2009. Page 2 February 24, 2009 The first item is an add-on Item 10E. It's a recommendation to approve a Memorandum of Agreement between the Florida Department of Environmental Protection through its Office of Coastal and Aquatic Managed Areas, CAMA, which is C-A-M-A, and Collier County for hydraulic restoration improvements on Shell Island Road. That item is being walked on at staffs request. The next item is Item 16B1. In the executive summary under recommendations, first paragraph should read, for a total base bid of $59,153.20 rather than for the total base bid and of$59,153.20. That correction is at Commissioner Fiala's request. The next item is to move Item 16D 1 to 1 OF. It's a recommendation for the Board of County Commissioners to adopt a resolution to declare a public purpose and to allow Collier County Parks and Recreation to create a donation fund for the solicitation, receipt, and expenditure of donations to Collier County Parks and Recreations to benefit youths, adults, and senior citizens. This item is being moved at Commissioner Fiala's request. Note on this particular item, the third whereas clause in the resolution should read, whereas, the board finds it necessary for parks to work with the Office of the Clerk of Courts Department of Finance, and the office of management and budget to create a parks and recreation donation fund for the collection and accounting of parks and recreation monetary donations, and the board directs parks to coordinate with the Clerk of Courts' Department of Finance to establish and maintain said account in compliance with the Florida Statutes. And then in the fourth whereas clause, replace the word spend with and authorizes the expenditure of the donations. In the last paragraph, replace the word spend with expenditure of. That clarification's at staffs request. And that, again, is on Item 16D1, which is now 1 OF. The next item is Item 16D10. The incorrect Attachment B, scope Page 3 February 24, 2009 of services, was entered into this item. The correct Attachment B replacement has been distributed and copies made available for review. Again, this correction was at staffs request. Next item is to move Item 16E8 to lOG. It's a recommendation to approve a budget amendment to the Freedom Memorial Fund, which is fund 620, in the amount of $70,000 in order to begin construction on the Collier County Freedom Memorial. This item is being moved at Commissioner Fiala's request. The next item is to move Item 16G 1 to 14 B. It's a recommendation for the CRA board to reject the sole response received for request for proposal, (RFP) 08-5112 from Kay Homes to construct, market, and sell moderately priced houses on CRA-owned land and to approve the CRA staff to release a new RFP at a later date through the Collier purchasing department. This item is being moved at Commissioner Henning's request. The next item is to move Item 16K3 to 12A. This item requires that ex parte disclosure be provided by commission members. It's a recommendation to approve petition, conditional use 2008-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 agricultural (A) zoning district pursuant to Land Development Code subsection 2.03.0 1.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. This item is being moved at the request of Commissioners Coletta, Fiala, and Coyle. COMMISSIONER COYLE: Mr. Mudd, just to point out that that item is -- has an error in it. It says zero dollars cubic yards. You need to correct that. And I think -- and you also need to add, it was Commissioner Fiala's, Commissioner Coletta's, and Commissioner Coyle's request on the minutes in order to make them -- or this outline in order to make it correct. Page 4 February 24, 2009 Are you working off the same outline we are? Okay. I understand that. But on this Item 12A-- MR. MUDD: Yes, sir. COMMISSIONER COYLE: -- it is in error, right? Are you correcting that or are you merely moving it? MR. MUDD: I'm correcting it, sir. COMMISSIONER COYLE: Okay, all right. Thank you. MR. MUDD: Okay. And I've said that the item is being moved at Commissioner Coletta's, Commissioner Fiala's, and Commissioner Coyle's request. COMMISSIONER COYLE: Okay, all right. MR. MUDD: You have three time-certain items today, which is Item 5C to be heard at one p.m. It's a presentation by Lampl Herbert Consultants, Inc., on behalf of Miami-Dade Aviation and Parks and Recreation on the training and transition airport lands for potential off-highway vehicle (OHV) use. The next item with a time certain is Item 9E to be heard at 11 :30 a.m., and it's a presentation by the Clerk of Courts to update the Board of County Commissioners on the county's investment portfolio. The next time-certain item is Item lOB to be heard at 10:30 a.m., and it's a recommendation that the Board of County Commissioners provide direction to the county attorney and the county manager or his designee related to the option to change the requirements for the ' assessment of impact fees for changes of use in existing buildings. That's all I have, Madam Chair, Commissioners. . CHAIRMAN FIALA: Thank you. COMMISSIONER FIALA: And Commissioners, you need to mark your index. I got the 14B move after I did the updates. CHAIRMAN FIALA: Thank you, Sue. Thank you. Do you have anything for us this morning, County Attorney? MR. KLATZKOW: No, ma'am. CHAIRMAN FIALA: Okay, fine. Page 5 February 24, 2009 Commissioners, do you have anything to declare or any changes or addition to the agenda? We'll start with Commissioner Coyle. COMMISSIONER COYLE: Madam Chair, I have a disclosure for Item 16K3. That item, of course, was previously heard by the Board of County Commissioners, so we have, indeed, discussed it, and I have also received correspondence, emails, and had meeting with various people concerning this item. CHAIRMAN FIALA: Thank you. Commissioner Halas? COMMISSIONER HALAS: Yes. Good morning, Madam Chair. As far as the consent agenda, the only item that I have to bring forward is the 16K3. I met with Rich Y ovanovich October the 2nd, 2007. And as far as the summary agenda, I have no disclosures, and I have no changes on today's agenda. Thank you. CHAIRMAN FIALA: Thank you. And Commissioner Coletta? COMMISSIONER COLETTA: Yeah. Well, 16K3 has been moved to 12A, and I have declarations to make on that, but I'll make them at the time it comes. I have no other declarations to make as far as the consent agenda, the summary agenda, but I do have one request. There's a number of people coming to speak to us on Item 12A, the excavation, aquaculture, and I'd like -- I would like to request, respectfully request, a time certain for that so these people have some certainly of what time it's going to come. CHAIRMAN FIALA: Would you like to set a time for that, Mr. Mudd? COMMISSIONER COLETTA: Well, we have a one o'clock time certain, the land use items, so -- MR. MUDD: Commissioner, if you're going to let those people come and let them know it's coming, then you probably want to have something around 3 :30 or 4:00 this afternoon so you can square it up. Page 6 February 24, 2009 COMMISSIONER COLETTA: Well, the only problem with that is, do you think we might be through by then? MR. MUDD: No. COMMISSIONER COLETTA: Okay, fine. MR. MUDD: Absolutely not. COMMISSIONER COLETTA: Then why don't we aim for three o'clock, if that's agreeable. CHAIRMAN FIALA: Fine. All other commissioners fine with that? (No response.) CHAIRMAN FIALA: Okay, fine. That's all? COMMISSIONER COLETTA: That's all. Thank you very much. CHAIRMAN FIALA: Commissioner Henning? COMMISSIONER HENNING: Nada, nothing, zip. CHAIRMAN FIALA: Okay, that's easy. And same with me, I have no changes or additions on the agenda and nothing to declare at this time on the consent agenda or the summary agenda. Thank you. And now may I have a motion to approve today's agenda? COMMISSIONER HALAS: So moved. COMMISSIONER COYLE: Second. CHAIRMAN FIALA: Okay. I have a motion to approve by Commissioner Halas and a second by Commissioner Coyle. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: You're opposed? COMMISSIONER HENNING: Right. CHAIRMAN FIALA: Could you tell me why? Page 7 February 24, 2009 COMMISSIONER HENNING: Well, there's an item on the consent agenda I've been opposed to prior. There's no sense of pulling it off the agenda because the rest of the commissioners was not opposed it. CHAIRMAN FIALA: Oh. COMMISSIONER HENNING: So instead of beating the same drum over and over and over, I just let my feelings be known. CHAIRMAN FIALA: Okay. Thanks for clearing that up for me. Can you tell me the item number just -- I'm so curious. MR. MUDD: It's 16Al, I believe, sir. CHAIRMAN FIALA: Oh. MR. MUDD: It's the Horizon Study Oversight Committee. CHAIRMAN FIALA: Okay. COMMISSIONER HENNING: Correct. CHAIRMAN FIALA: Okay. Thank you so much. Okay. And then Commissioner Henning, would you like to -- COMMISSIONER HENNING: Could you tell me -- yeah, I'll be happy to. CHAIRMAN FIALA: Would you like to make a motion to approve these minutes? Page 8 AGENDA CHANGES BOARD OF COUNTY COMMISSIONERS' MEETING February 24. 2009 Add On Item 10E: Recommendation to approve a Memorandum of Agreement between the Florida Department of Environmental Protection through its Office of Coastal and Aquatic Managed Areas (CAMA), and Collier County for hydrologic restoration improvements on Shell Island Road. (Staff's request.) Item 16B1: In the Executive Summary under "Recommendation" first paragraph should read: " . . . . for the total Base Bid of $59,153.20. . . ." (rather than "for the total Base Bid and of $59,153.20. . ."). (Commissioner Fiala's request.) Move Item 1601 to 10F: Recommendation for the Board of County Commissioners to adopt a Resolution to declare a public purpose and to allow Collier County Parks and Recreation to create a Donation Fund for the solicitation, receipt and expenditure of donations to Collier County Parks and Recreation to benefit youths, adults and senior citizens. (Commissioner Fiala's request.) NOTE: The third "WHEREAS" clause in the Resolution should read: "Whereas the Board finds it necessary for PARKS to work with the Office of the Clerk of Courts, Department of Finance, and Office of Management and Budget, to create a Parks and Recreation Donation Fund for the collection and accounting of Parks and. Recreation monetary donations, and the Board directs PARKS to coordinate with the Clerk of Courts, Department of Finance to establish and maintain said account in compliance with the Florida Statutes; and". In the fourth "WHEREAS" clause, replace the word "spend" with: "and authorizes the expenditure of the donations". In the last paragraph, replace the word "spend" with "the expenditure of". (Staff's request.) Item 16010: The incorrect Attachment B, Scope of Services, was entered into this item. The correct Attachment B replacement has been distributed and copies made available for review. (Staff's request.) Move Item 16E8 to 10G: Recommendation to approve a Budget Amendment to the Freedom Memorial Fund (620) in the amount of $70,000 in order to begin construction on the Collier County Freedom Memorial. (Commissioner Fiala's request.) Move Item 16G1 to 14B: Recommendation for the CRA Board to reject the sole response received for Request for Proposal (RFP) 08-5112 from Kaye Homes to construct, market and sell moderately priced houses on CRA-owned land; and to approve the CRA staff to release a new RFP at a later date through the Collier Purchasing Department. (Commissioner Henning's request.) Move Item 16K3 to 12A: This item requires that ex parte disclosure be provided by Commission members. 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 2.03.01.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. (Commissioners Coletta's, Fiala's and Coyle's request.) Time Certain Items: Item 5C to be heard at 1 :00 p.m. Presentation by lampl Herbert Consultants, Inc., on behalf of Miami-Dade Aviation and Parks and Recreation on the Training and Transition (TNT) Airport lands for potential Off- Highway Vehicle (OHV) use. Item 90 to be heard at 11 :30 a.m. Presentation by the Clerk of Courts to update the Board of County Commissioners on the County Investment Portfolio. Item 10B to be heard at 10:30 a.m. Recommendation that the Board of County Commissioners provide direction to the County Attorney and the County Manager, or his designee, related to the option to change the requirements for the assessment of impact fees for changes of use in existing buildings. 2/24/2009 8:48 AM February 24, 2009 Item #2B, and #2C MINUTES FROM JANUARY 27, 2009, REGULAR MEETING; AND JANUARY 30, 2009, VALUE ADJUSTMENT BOARD WITH SPECIAL MAGISTRATE MARK PELLETIER - APPROVED AS PRESENTED COMMISSIONER HENNING: I'll make a motion to approve these minutes of January 27, BCC regular meeting, and January 30, 2009, Value Adjustment Board with Special Master Mark Pelletier. CHAIRMAN FIALA: Do I hear a second? (No response.) CHAIRMAN FIALA: Hello? COMMISSIONER HALAS: Second. CHAIRMAN FIALA: Okay. I have a second from Commissioner Halas. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) CHAIRMAN FIALA: Thank you. Let's move on to our proclamations. Item #4A PROCLAMATION DESIGNATING MARCH 1, 2009 AS WORLD FRIENDSHIP DAY. ACCEPTED BY LIZ LLOYD AND DARRELL ANDERSON, FFSWFL CLUB MEMBERS - Page 9 February 24, 2009 ADOPTED MR. MUDD: First and only proclamation is designating March 1,2009, as World Friendship Day, to be accepted by Liz Lloyd and Darrell Anderson from the FFS -- I think -- well, it's FF Southwest Florida club members. I don't know what the two first Fs are for. MS. LLOYD: Friendship Force. MR. MUDD: Okay. Thank you, ma'am. CHAIRMAN FIALA: Okay. Would you like to come up front, please, for us. Thank you. Boy, I'm so glad I get to read this. I like all that friendship stuff. Come on up front. And if you would turn around and face the audience, we would appreciate that. Thank you so much. Proclamation: Whereas, the Friendship Force of Southwest Florida will be celebrating World Friendship Day on March 1, 2009; and, Whereas, Friendship Force International was founded in March, 1977, by President Jimmy Carter at the White House Ceremony and he has earned recognition for its people-to-people diplomacy with a Nobel Prize nomination and has gained the respect of governments around the world for its groundbreaking home hospitality program as an effective means for promoting international understanding; and, Whereas, the Friendship Force is called an exchange because you exchange the way you currently see the world for an entirely new perspective by exploring, which allows people to see a culture up close, through the eyes of local residents taking you straight to the heart of the country and its people, by understanding cultural differences and permanently changing the way you read and watch the news as distant places are no longer vague dots on the map. They are now the home of your new friends; and, Whereas, time spent together at the breakfast table creates the kind of empathy that expands the mind and the heart. You will want to Page 10 February 24, 2009 put friendship into action by supporting your friends in distant places with humanitarian and educational projects showing that working together can build a better and more peaceful world; and, Whereas, the mission of Friendship Forces, bringing global peoples together in friendship throughout -- through understanding and respect. Now, therefore, be it proclaimed by the Board of County Commissioners of Collier County, Florida, that March 1,2009, be designated as World Friendship Day. Done and ordered this 24th day of February, 2009, Board of County Commissioners, Collier County Florida, Donna Fiala, Chairman. And Mr. Commissioners, I make a motion that we approve this proclamation. COMMISSIONER COLETTA: Second. COMMISSIONER COYLE: Second. COMMISSIONER HALAS: Second. CHAIRMAN FIALA: And I have a few seconds right there on the dais. We'll take Mr. Coletta's as the first second. And all those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) CHAIRMAN FIALA: And you gave us this book. Is that as well? (Applause.) CHAIRMAN FIALA: We can't accept a gift, but we will give this to our library. Page 11 February 24, 2009 MR. ANDERSON: I was hoping you would, yes. CHAIRMAN FIALA: Oh, good. And our new library is waiting for a book, so this is it. MS. LLOYD: That's a good book on history. CHAIRMAN FIALA: Oh, great. Thank you so much for being here. Thank you so much. MS. LLOYD: Thank you. COMMISSIONER HALAS: Thank you, sir. Appreciate it. COMMISSIONER COYLE: Congratulations. COMMISSIONER HENNING: My pleasure. COMMISSIONER HALAS: Congratulations. COMMISSIONER COYLE: Thank you. CHAIRMAN FIALA: And would you -- MR. MUDD: Get a picture. CHAIRMAN FIALA: -- stand up here for a picture, please. CHAIRMAN FIALA: If you want to say a couple words. MR. ANDERSON: I can, yes. CHAIRMAN FIALA: Okay, very good. Thank you. MR. ANDERSON: Madam Chairperson, we're indeed honored to receive this proclamation. And Friendship Force is a very important organization, not only in the states, but worldwide. We're going to be -- just for your information we're going to be hosting 23 ambassadors from Russia in Belaruse and Uzbekistan next week. They're coming in on the 28th of this month, and they'll be here for eight days. And we have a real exciting program set up for them not only in Lee County but also in Collier County. They'll be home hosted by different families that are also members of the club, and then from here they'll be going to Sarasota. So we're very excited about that. But . agaIn -- CHAIRMAN FIALA: Oh, where will -- my son -- this is a personal thing. Sorry about that, folks. You get to hear this. My son Page 12 February 24, 2009 Todd does -- his church, he goes as part of his church -- visits orphanages in Bella Ruse once a year, and so I was wondering where these people are meeting. Maybe his church members would like to go and welcome them. MR. ANDERSON: We'll-- the club will be from Minsk, Belaruse. We'll be meeting in various homes. We will have -- again, on the 1 st of March we have the Friendship, of course, Day, and that will be at -- oh, gee. Slipped my mind. Sorry about that. CHAIRMAN FIALA: That's all right. That's all right. Thank you. MR. ANDERSON: Everybody's invited to come, and we're pleased to be here. CHAIRMAN FIALA: Thank you very much. MR. ANDERSON: Thank you. MR. MUDD: That was Darrell Anderson. (Applause.) Item #5A PRESENTATION OF A DONATION IN THE AMOUNT OF $1,000.00 FROM THE DISABLED VETERANS FOUNDATION TO THE COLLIER COUNTY VETERANS COUNCIL (TO BE PRESENTED BY BOBBY BROOKS, OPERATIONS MANAGER FOR DISABLED VETERANS FOUNDATION; TO BE ACCEPTED BY JIM ELSON, PRESIDENT OF THE COLLIER COUNTY VETERANS COUNCIL) - CONTINUED PER COUNTY MANAGER MUDD MR. MUDD: Commissioner, that brings us to the presentation section of our agenda. The first is a presentation of a donation in the amount of a thousand dollars from the Disabled Veterans Foundation to the Collier County Veterans Council to be presented by Bobby Brooks, operations manager of the Disabled Veterans Foundation, to Page 13 February 24, 2009 be accepted by Jim Elson, president of the Collier County Veterans Council. MR. ELSON: Bobby Brooks here? (No response.) MR. MUDD: I hope so. Mr. Brooks? (No response.) COMMISSIONER COLETTA: The check's in the mail. CHAIRMAN FIALA: Jim, do you mind hanging around for a while. Maybe he got-- MR. ELSON: I don't mind waiting a little bit. I do want to report one quick thing though. The money that I gave to you that allowed the new van to be purchased is in operation and is working beautifully and comfortably taking our vets to the medical appointments, so I'm happy for that. CHAIRMAN FIALA: Oh, that's great. Thank you. You've done so much work for the veterans, Jim. We really appreciate all your hard work that's behind the scenes. Nobody even knows that it's going on. MR. ELSON: Thank you very much. Appreciate it. COMMISSIONER COYLE: Except the veterans. The veterans know it's going on. MR. ELSON: They know. (Applause.) Item #5B PRESENTATION BY WRIGHT CONSTRUCTION GROUP ON THE CONSTRUCTION STATUS OF THE NEW SHERIFF'S FLEET MAINTENANCE FACILITY - PRESENTED MR. MUDD: The next presentation is by Wright Construction Group on the construction status of the new sheriffs fleet maintenance facility . Page 14 February 24, 2009 MR. NESBITT: Thank you, Mr. Mudd. Good morning, Commissioner, ladies and gentlemen. For the record, Claude Nesbitt, department of facilities management, and it's my pleasure to introduce Mr. Mark Valin. MR. V ALLEN: Okay. Once again, Mark Valin, project manager for Wright Construction. Tom Stetz, project superintendent for Wright Construction. Both Tom and myselfhave been on the fleet facility since the beginning at Phase I. Quick update of the project. Here's a conceptual view. Recent aerial photography. I guess this is probably about two weeks old. Front elevation of the facility. One of the security gates. All the security gates are installed at this time. Four 10,OOO-gallon fuel tanks for the fuel facility, some of the backup power supply for the fuel facility, the transfer switches. Interior view of the actual maintenance facility itself. The lifts are, at this time, going in. Some interior shots of the administration side, reception area and copy area. Some MEPs, power distribution, waterless urinal, and hand wash and emergency shower facility out in the main work area. One of the skylights in the main work area. It's very, very nice and appealing. Just a quick aerial shot of the last four months or so. You can watch it. And the present shot up there. Skylight's in. The project is currently under budget, and the project is currently scheduled to be completed ahead of schedule. Contract deadline is April 25th. The Wright objective, zero punch list and zero positive change orders. Okay. Questions? CHAIRMAN FIALA: Yes, I have a question, but not for you, for our county manager. Was this built with government impact fees, Mr. Mudd? Page 15 February 24, 2009 MR. MUDD: Yes, ma'am. CHAIRMAN FIALA: Okay. See, again, I just want to point out MR. MUDD: When I said yes, ma'am, it's a mix -- it's a mix, because you've got some sheriff funds, you've got government building funds, and then you do have some general fund funds on this particular facility. CHAIRMAN FIALA: Okay, thank you. MR. V ALLEN: Thank you. COMMISSIONER COYLE: Good job. Thank you. CHAIRMAN FIALA: Yes. Commissioner Henning? COMMISSIONER HENNING: Excuse me. MR. OCHS: Question, yes. COMMISSIONER HENNING: Is the air-conditioning -- is the bays air conditioned? MR. NESBITT: No, sir. COMMISSIONER HENNING: Okay. So providing the skylight, you're actually providing a natural light for less lighting. MR. NESBITT: Correct. COMMISSIONER HENNING: Good design. MR. NESBITT: Thank you. Donald Stacy would appreciate that. Thank you. CHAIRMAN FIALA: Thanks for a great report. MR. V ALLEN: Thank you. MR. MUDD: Commissioner, that brings us to the public petition, and I don't believe we have Mr. Brooks yet. Peter Creely and Jim are out there trying to figure out where he is, but we've made multiple contacts, so I think we're going to schedule this for another meeting. MR. MUDD: And our 5C presentation is a one p.m. time certain, so we go to public petitions. The first public petition is a request by Jennifer Bermudez to discuss a fence variation matter. Ms. Bermudez, if you could come forward, please. This could be Page 16 February 24, 2009 a really quick meeting. Ms. Jennifer Bermudez to discuss a variation matter. It's Item 6A. (No response.) MR. MUDD: Brings us to our next public petition, and if she -- and I'll -- when we get to the end of the public petitions, I'll try her name one more time. Item #6B PUBLIC PETITION REQUEST BY WILLIAM POTEET TO DISCUSS SOUND INVASION ON EAST SIDE OF 1-75 BETWEEN GOLDEN GATE P ARKW A Y AND PINE RIDGE ROAD - MOTION TO HAVE CHAIRMAN CONTACT FDOT TO RESOLVE PROBLEM - APPROVED; MOTION AUTHORIZING COMMISSIONER HENNING TO WORK WITH STAFF AND RESIDENTS - APPROVED Brings us to 6B. It's a public petition request by William Poteet to discuss a sound invasion on the east side of 1-75 between Golden Gate Parkway and Pine Ridge Road. Mr. Poteet? MR. POTEET: Yes. I won't make the meeting go that much faster. Good morning. I thank the commission for the opportunity to come and speak before you. I'm here on behalf of the Golden Gate Area Civic Association who are here on behalf of some citizens and residents that live in between Golden Gate Parkway and Pine Ridge Road between Santa Barbara and 1-75. That little quadrant there. It's approximately -- we estimate someplace around 13- to 1,500 people live in that area. And since the -- since the construction of 1-75, the sound has just become horrendous. There's days where it's only a roar, and there's Page 1 7 February 24, 2009 other days where you think a tornado's coming through your back yard, depending upon which way the wind's blowing. It's not getting better, and we're here to ask the commission to join us on our quest to find a solution. We understand that it's not your job to go out and build sound walls. That's FDOT's position. Now, we've been to FDOT, and FDOT says -- well, first of all, let me give you a little history. I sat on the 1-75 Overchange Ad Hoc Committee for three years. And at one of our meetings, I specifically asked FDOT if there were sound walls needed because it showed one sound wall along the exit ramp to buffer those homes that were just right on top of the highway. And that was the only sound wall that was on the plan. And they said, with a straight face, that, no, there's no problems. They've done sound studies. There will be no need for sound walls. Well, here we are five years later. You have a number of sound walls that are already up along 1-75, so obviously someone determined they needed to take care of this problem. Since then, FDOT has says, yes, we recognize the fact that there is a sound problem. It's impacting the neighborhood, and it's impacting the neighborhood negatively, not only on prices on homes, render the homes, things of that nature, but it's just the quality of life of the residents has been really decimated. So -- but at this point, FDOT says they won't -- will not build the sound wall because our community does not meet the density requirements. Well, we haven't seen what the requirements are, we haven't seen the raw data, et cetera, and even if I did see it; I personally don't know if I'm the type of person that could evaluate it. So what we're here to ask the commission today to do is to kind of join our little neighborhood and to try to come up with some solutions. When they started the highway construction, there was a contract that was let out, and I'm not sure who let it out or who did it, because I haven't been able to track down the source, but it was for Page 18 February 24, 2009 removal of exotics around the highway. So they went in, they removed the exotics, along with every other living tree that was in the area. I mean, they just scraped it. So now I've got highway noise with no sound wall and no vegetation stopping it. It's just filtering right through into the neighborhood. So what we're asking the commission is if they would join us in trying to come up with some type of solution, whether it be creating an MSTU to let the neighborhood create its own solution for it or whether it be to have transportation review the DOT data to ensure that we're getting exactly what we're supposed to be doing. Because, you know, bottom line is, if there's a sound problem and we meet their criteria, they have to put the wall in. Now, I don't know if that's going to happen or not, but I, myself, as an individual, do not have the expertise nor does the civic association have it. And so we're coming to the people that, you know, govern us and try to help us find a solution to this. It could be just a simple thing of buffering with landscaping and creating some type of natural buffer there. But, again, we just want to open a dialogue and have the commission join us and come to some solution for the neighborhood instead of just saying, this neighborhood, you know, is going to be penalized in the name of progress. The civic association was one of the strongest proponents for the 1-75 interchange, but we did not want to do it at the detriment of our neighborhoods, and so we're out there now trying to see if we can find something that's going to make our community whole and sound and a good place to live. And I thank you for the opportunity to speak today. CHAIRMAN FIALA: Oh, I'm sorry. COMMISSIONER HENNING: I've got -- move your glass. CHAIRMAN FIALA: Okay. COMMISSIONER HENNING: There's two of them on. Page 19 February 24, 2009 CHAIRMAN FIALA: Okay. Commissioner Henning? COMMISSIONER HENNING: I would like to seek the board's approval to work with Mr. Poteet in the education, minimal staff time to take a look at the study, and also work with Mr. Poteet to see if there's solutions out there to mitigate the noises along that neighborhood. CHAIRMAN FIALA: So do you want to bring it back then? COMMISSIONER HENNING: I don't think we need to bring it back. CHAIRMAN FIALA: Okay. COMMISSIONER HENNING: Leo, do you think we need to bring it back under that scenario? MR. OCHS: No, sir, not if the board's going to authorize you to work on their behalf with Mr. Poteet. CHAIRMAN FIALA: Fine with me. Commissioner Coletta? COMMISSIONER COLETTA: Yeah. Well, I think Commissioner Henning's heading in the right direction by taking this item and moving it forward. I would further suggest that we direct the chair to write a letter to Florida Department of Transportation asking them to work a little closer with the community to try to bring some sort of resolution to this with Commissioner Henning and the community so that it shows the support of the Board of County Commissioners. The way Bill's talking about this, it sounds like that the Florida Department of Transportation's just dropped out of the picture. There's -- you have a lot more questions than you have answers, and I think you need to get them back into the whole thing. MSTU is -- it's a wonderful idea to talk about but, you know, exhaust all their possibilities first. CHAIRMAN FIALA: Commissioner Coyle? COMMISSIONER COYLE: Yeah, Madam Chair. I -- I think a Page 20 February 24, 2009 motion to study and discuss it is really not something that goes far enough here. We have direct access to the Department of Transportation through the Metropolitan Planning Organization. We meet with them every month. There's absolutely no reason we can't put this on their agenda and ask that they deal with this issue and ask them to conduct the study. They're going to ultimately have to make the decision to spend the money. Let's go directly to the source and get it done rather than studying it for another month or two months. COMMISSIONER HALAS: Yep. CHAIRMAN FIALA: Okay. So what -- you're going to handle this then? You're going to be working with him, and then we're going to be asking the MPO to put this on our agenda; is that -- is that how we summarize it? COMMISSIONER COYLE: Yeah. Since no motion had been made yet -- I don't think I've heard a motion. COMMISSIONER HALAS: I thought you made the motion. COMMISSIONER COYLE: But my motion was to ask the county commission to write a letter to the Metropolitan Planning Organization, ask that it be placed on the agenda for resolution, and then at our next meeting we will deal with it. COMMISSIONER HALAS: Second. COMMISSIONER COLETTA: Well, Commissioner Henning needs to be included in this. CHAIRMAN FIALA: Y es. We have a motion on the floor by Commissioner Coyle and a second by Commissioner Halas. Commissioner Henning? COMMISSIONER HENNING: Well, the motion -- there's already been a study done, okay. I think what Bill is asking is for the staff to take a look at the study and validate the study, so there's no need for asking FDOT to do another study. This was brought up two MPO meetings ago under general Page 21 February 24, 2009 communication off the state staff, okay. And at this point there is no resolution, there is no expertise, whether in the state representative's office for the district for the residents, and I just think it -- you know, the motion really doesn't cover -- addresses any resolution to it. So all I'm asking for is the board's permission to work with Mr. Poteet and staff, a little bit of staff time, to bring some kind of resolution to this. CHAIRMAN FIALA: Okay. Which is fine with me, by the way. Commissioner Coyle? COMMISSIONER COYLE: Well, I guess I don't see how we, that is, the county commission, brings a resolution to it. FDOT built the sound wall on the west side of the highway, they used certain criteria to make that determination, they spent the money and they built the sound wall. If this community's having a noise problem, they should have a sound wall, too. FDOT has to make that determination and build the sound wall. We can't get the sound wall built by consulting with Mr. Poteet and his community. We can't get the sound wall completed by validating the study. We get the sound wall built by going to the people who are responsible to building it -- for building it, and trying to put some pressure on it, the same way we try to deal with the issues that confront other -- other agencies like the City of Naples and their mast arms. It is a struggle sometimes getting it done, but if we -- if we keep going back to FDOT and demanding that they treat people equally and they provide the sound walls that this community needs, then that's what we ought to be doing. Validating a study is not going to get it done. COMMISSIONER COLETTA: I thought I had my light on. CHAIRMAN FIALA: Okay. At least you can see, Bill, everybody wants to work with you and help you. MR. POTEET: No. That's what we're asking for. We're asking Page 22 February 24, 2009 for an overall coordination of this, and I'm not sure the sound wall is going to be the viable option. I mean, it is the ultimate option. There's no question in our mind, that is what the neighborhood would ultimately want. But whether or not we're going to be able to convince FDOT, I don't know. So I want to look at other options also, because the problems are just not going to go away. So you get worse and worse as the traffic -- CHAIRMAN FIALA: I think that Commissioner Henning really had the answer right there. COMMISSIONER COLETTA: I do, too. CHAIRMAN FIALA: He wants to work something out with them, and then come back to us and tell us what their solutions are, and that -- and then we can always bring it before the MPO and put it on their agenda. But I think that that -- you know, he's -- I think he should move this thing forward because he's already got a handle on it. COMMISSIONER COLETTA: I agree. CHAIRMAN FIALA: But that's my opinion. Commissioner Coletta? COMMISSIONER COLETTA: Yeah, I agree. That's exactly the way I feel is that there's several different ways to go at this, and this problem's been ongoing for a little while. We go directly to the MPO without researching a little bit, having our staff step in and take a look to see the complexity of the situation and be able to advise. I think that's the right direction to go to start with, and at that point in time we might be able to take it to the MPO with more information. But I would really appreciate it, in a commissioner's district, if we would let that commissioner take the lead and stay with it. That's the way this should be done. CHAIRMAN FIALA: Commissioner Halas? COMMISSIONER HALAS: Obviously this is the responsibility of FDOT. They made the study in regards to a sound wall prior to Page 23 February 24, 2009 building the first sound wall. The sound wall that's presently there on the opposite side of the highway has -- obviously has turned into a reflective surface, and that's causing the sound to bounce back into the community; so, therefore, FDOT needs to go back and make another study and see if they've created a larger problem than they tried to cure. So whether it's a sound wall, whether it's vegetation, I believe that that's the course of action that should be taken, and that should be FDOT's responsibility. They should go out there and make another sound -- make additional sound measurements to figure out if they've caused a larger problem than they tried to rectified. CHAIRMAN FIALA: Okay. So we have a motion on the floor presently and a second. Any further discussion? COMMISSIONER HENNING: Yes. CHAIRMAN FIALA: Yes, sir. COMMISSIONER HENNING: Just a clarification what the motion is. CHAIRMAN FIALA: Clarification for -- of the motion. MR. MUDD: The motion -- the motion that I heard was to have the chair write to the MPO to get this particular item on their next agenda. COMMISSIONER COYLE: It goes further than that, okay. It is designed to get the people who are responsible for doing the work involved, okay. What I'm trying to do is get it done faster. Ifwe conduct a study and then maybe spend a month or whatever meeting with the community and trying to evaluate alternatives and then we take it to FDOT, FDOT is going to do the same thing. They're going to say, okay, what are our alternatives. They'll go through the same study, look at the same alternatives. If we take it to FDOT, get FDOT involved right upfront working with the community, county staff, and everybody else, then we're Page 24 February 24, 2009 going to get this resolved faster. So that's my intent is to get it resolved faster by getting it on FDOT's radar screen and letting them know that the Board of County Commissioners wants the resolution, okay. CHAIRMAN FIALA: And, Bill, do you have a preference with what you've heard just now? I mean, is this -- this motion is on the floor and we're ready to vote on it. MR. POTEET: I like both suggestions, the one from Commissioner Coyle and from Commissioner Henning, and if they'd run simultaneously with each other, I think that's the best for the neighborhood because then we'd have total communication with the county and, you know, and DOT -- transportation will be able to look at the previous study that was done to see if there was any errors in that, and that's the information that we don't have. Okay. CHAIRMAN FIALA: And while this is taking place, then you'll be working with Commissioner Henning. Go ahead, Commissioner Henning. MR. POTEET: That would be the ultimate, but I like the approach of getting it done faster. I mean, the whole neighborhood would. CHAIRMAN FIALA: Go ahead. COMMISSIONER HENNING: Well, the thing is is nobody said for the county to restudy it. MR. POTEET: Right. COMMISSIONER HENNING: And that's a clearly (sic) misstatement. MR. POTEET: We want to evaluate the existing studies to see if they're accurate, because obviously whatever they did five years ago on a computer -- COMMISSIONER HENNING: And this -- and I'd love to support the motion -- MR. POTEET: -- was in error. COMMISSIONER HENNING: -- but this was already discussed Page 25 February 24, 2009 at the MPO, so it's not resolving anything, but anyways. CHAIRMAN FIALA: Okay. Motion is on the floor, and there is a second. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. Opposed, like sign? COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Okay. We have a 3-2 vote, and the two votes that are against are Commissioners Coletta and Commissioners (sic) Henning -- and Commissioner Henning. Okay? So we'll move forward. Commissioner Henning will be working with you, and by the time we get this on the agenda, you guys will have a plan for us. MR. POTEET: Let me just make sure. Was Commissioner Henning authorized to work with us with that motion, because I didn't CHAIRMAN FIALA: Well, that wasn't-- COMMISSIONER COYLE: Well, he's your commissioner. CHAIRMAN FIALA: -- part of the motion. COMMISSIONER COYLE: He's always authorized to work with you. COMMISSIONER COLETTA: But no. To use staff time, you have to authorize it from the commission. You didn't do it. CHAIRMAN FIALA: Do you need staff time with that? COMMISSIONER HENNING: Sure. CHAIRMAN FIALA: Then make a motion. COMMISSIONER COLETTA: I make a motion that we allow staff to work with Commissioner Henning, a limited amount of staff time, to work with the community to try to see what the options are Page 26 February 24, 2009 that are open. COMMISSIONER HENNING: I'll second it. CHAIRMAN FIALA: Okay. And the motion is on the floor, and you've heard it from Commissioner Coletta, and a second by Commissioner Henning. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Okay. That's a 4-1 vote. MR. POTEET: Thank you very much. CHAIRMAN FIALA: Thank you. Let's hope that we can get through the rest of them a little bit . eaSIer. Item #6A PUBLIC PETITION REQUEST BY JENNIFER BERMUDEZ TO DISCUSS A FENCE VARIATION MATTER - PETITIONER TO SUBMIT ADDITIONAL INFORMATION TO SUPPORT HER REQUEST TO THE ZONING DIRECTOR MR. MUDD: Commissioner, I believe Mr. -- Ms. Jennifer Bermudez is here, so we go to 6A. It's a public petition request by Jennifer Bermudez to discuss a fence variation matter. Please come forward to the podium. MS. BERMUDEZ: Good morning. I'm here for a fence variance. This is a code enforcement issue. It was a gazebo and a fence originally. There was -- it was done with no permit. I'm trying to bring Page 27 February 24, 2009 it up to code on behalf of the homeowner and the contractor. The fence is 6 feet high currently, and apparently to bring it up to code, we need to knock it down to 3 feet. One of my options I was given was to apply for a fence variance, which was a thousand dollars paid by the homeowner. I applied for it, and my biggest argument is that it's an area that is high in crime. And it states for the variance that at least one health, safety, or welfare issue has to be presented, and I feel that it was, and they denied me from that. I don't feel that there was much study done on the area. It says that it might be, but they don't agree with it. And I'm looking for some options to keep the fence up to of 6 feet. It's a chain link fence. It isn't a privacy fence. And I don't -- we just can't understand why it's being such a big issue. CHAIRMAN FIALA: Commissioner Coletta? COMMISSIONER COLETTA: Yeah. We should go right to Susan on this. And it is a concern. I mean, the staff could make a determination. They're capable of doing it under the right circumstances to allow for it, correct? MS. ISTENES: Susan Istenes, zoning director. Yes, Commissioner. In fact -- sorry. I'm going to put this up first. If you'll see in the letter, essentially the code allows the zoning director to waive the height restrictions under unique circumstances. And when we received the application, we felt it was really lacking in an explanation of what was unique to this particular property. We did call Jennifer and ask, before we spent her thousand dollars on this, if she could provide more information because really it -- it really was lacking and we didn't think we could approve it. She called a couple days later, I understand, and said that was all the information she could provide was what she had already given us, and her basic argument was that the property owner has expensive cars on his site and wished to protect them with a fence. COMMISSIONER COLETTA: Question. What's -- the letter's Page 28 February 24, 2009 addressed to Mr. Blocker when the petitioner is Jennifer Bermudez. MR. MUDD: Bermudez. MS. ISTENES: Jennifer will probably have to explain her relationship to -- I believe she may work for Mr. Blocker, I'm not sure. MS. BERMUDEZ: Brian -- yeah, I do work for Mr. Blocker. My argument was more of the safety. COMMISSIONER COLETTA: No, the letter's in question right now. I mean, I can't understand why the letter wasn't addressed to you. It was addressed to Mr. Blocker. . MS. BERMUDEZ: I'm here representing Mr. Blocker. He is the contractor. COMMISSIONER COLETTA: Okay. So this property is -- you live -- and is owned by Mr. Blocker? MS. BERMUDEZ: No, we're the contractor, sir. It's owned by Ray Cantor. We're the contractor applying to get the permit up to code. COMMISSIONER COLETTA: How does Mr. Blocker fit into this? MS. BERMUDEZ: He's the con- -- he's originally the contractor. COMMISSIONER COLETTA: Oh, the original contractor? MS. BERMUDEZ: He's the contractor. We're building a house for him. COMMISSIONER COLETTA: Okay. I understand now. I'm sorry for that line of questioning. MS. BERMUDEZ: That's okay. COMMISSIONER COLETTA: Just trying to understand this whole thing. What I'm hearing staff tell me is that you failed to supply the data as far as the crime data goes -- I guess that's what you're saying; right, Susan? MS. ISTENES: Yeah. Well, let me clarify. I don't necessarily know that it's crime data. I mean, there has to be a unique situation to Page 29 February 24, 2009 this property, this property alone. If there's crime in the area, then that is a broad problem and not a unique situation. COMMISSIONER COLETTA: Explain the unique situation. MS. ISTENES: I'll try to give you an example. First of all, I'll tell you, we -- the fence variance waivers are not given out, like you pay your thousand dollars and you get to have your height type of thing, and I sort of feel like perhaps Jennifer felt that as long as she paid her thousand dollars, she was going to be able to have the 6 foot height. I may be wrong. That's just my perception. COMMISSIONER COLETTA: This was -- this was the determination you made, and that cost a thousand dollars. MS. ISTENES: Correct, yes. It's called an administrative height waiver for a fence. And, for example, Commissioner, we have had people in the past come in like, for example, when they've lived on very busy roads on a corner lot and they've wanted to put up a 6 foot block wall, for example, to buffer some of the noise. That's kind of that -- that was one situation where we found there was a unique circumstance for comer lot properties, because comer lot properties are restricted on the front yards to a fence height of 4 feet in residential districts. Now, she can have the 6- foot on the sides, but on the front it has to be 4 feet, and then within a visibility triangle at the comer, it actually has to be reduced to 3 feet. COMMISSIONER COLETTA: But you would allow a 6-foot masonry structure that would block the view of traffic and -- but not allow a chain link fence. MS. ISTENES: No, Commissioner. The -- I was giving you an example -- COMMISSIONER COLETTA: Oh, I'm sorry. MS. ISTENES: -- of a unique circumstance where an increase in height would help resolve a problem unique to the property because they happen to be on a busy road. Page 30 February 24, 2009 I think there was somebody before you that was concerned over a sexual predator in their neighborhood, for example, and they -- their children played out front. COMMISSIONER COLETTA: Right. I remember that. MS. ISTENES: And we denied them, and I believe they came before you. The proper way to do this -- and I explained to Jennifer her options, so I'm not exactly sure what she's asking you. She said she wanted options. I did speak to her on the phone and told her she could appeal this determination. Now, that has to be done within 30 days, and I think she's probably -- yeah, she is past that time. That letter's dated January 14th. She could also apply for a variance. I did not encourage her to do that. Again, that's not my decision to approve a variance, but I didn't think she had -- met a lot of -- would meet a lot of the criteria for a variance. COMMISSIONER COLETTA: Let me just go through what I just heard. To apply for a variance, which would be an option that would be open, costs like about $4,000? MS. ISTENES: For residential, I think it's about three. COMMISSIONER COLETTA: Three thousand. MS. ISTENES: Plus advertising. COMMISSIONER COLETTA: Three thousand to lower the fence 2 feet. To be able to come up with circumstances, mitigating circumstances, that would allow staff to off-write it, it would have to be something other than a high-crime area, something like noise, and it would have to be a masonry structure. MS. ISTENES: No, it doesn't have to be a masonry structure. I was just using that as an example -- COMMISSIONER COLETTA: Okay. MS. ISTENES: -- as a time when somebody wanted to construct a masonry structure to buffer themselves from noise. I don't know that a chain link fence -- if it had been a chain link fence we would have Page 31 February 24, 2009 approved it because their argument would have been kind of moot. A chain link fence doesn't do anything for noise. COMMISSIONER COLETTA: Exactly. That's the -- I think the biggest mistakes we ever made here was giving your agency the ability to be able to write waivers for these things based upon rules that are less than clear. I mean, right now we're having a discussion that doesn't make any sense at all. I don't understand what the options are that are really available. I don't understand what your ability is to be able to waive these . vanances. MR. MUDD: Okay. Commissioner -- Commissioner, you basically asked Ms. Istenes the difference between a general versus a unique situation. He (sic) tried to provide a unique situation. The petitioner, in order to get an administrative variance, needs to be very specific upon why she and/or Mr. Blocker, her client, needs to have the variance. That information was not provided to Ms. Istenes and to staff, so staff has no alternative -- COMMISSIONER COLETTA: Okay. MR. MUDD: -- in this regard but to deny the administrative . vanance. Now, if Ms. Bermudez and/or Mr. Blocker would like to go through the official variance request to the Board of County Commissioners, that would be fine. But without the information, staff can't do the administrative variance, and that's the problem. COMMISSIONER COLETTA: And forgive me. I'm not going to drag this out any longer. Just one more question to you, Mr. Mudd. Is there a possibility with the thousand-dollar fee that was -- that had already been paid that she might resubmit that application one more time with more just reasons that may exist or not exist to see if it still falls under that rather that have to spend $3,000 on a variance after spending a thousand dollars just to get a determination? Determination was based upon sketchy information. Can she Page 32 February 24, 2009 refile that? Would that be a possibility that we could allow the petitioner to do? MS. ISTENES: Commissioner, I've asked her twice for more information. I'll be real blunt with you. She hasn't given me any. If she has, you know -- I mean, I'm willing to consider it again, but after two times, I've asked -- COMMISSIONER COLETTA: Thank you. That's all I wanted to hear. Now the ball's back in your court. MS. IS TENES: I don't think there are going to be any further down the road. MS. BERMUDEZ: Right. She states that I was under the assumption that just applying for the thousand dollars, that I would be approved just submitting the thousand dollars and the application, that's not -- that is not true. I would have expected a little bit more review on their behalf. And she says, you know, that she's looking for something unique. I mean, what is something unique? Is the chain link-- COMMISSIONER COLETTA: No. I hear you, but the thing is, the burden of proof is upon the petitioner to bring it in, not upon the staff to be able to find it for you. So what I would do if I was you is just do a little more research in this, get some guidance from staff, and then bring it back and see if they'll reconsider it based upon the facts that you present, high crime, whatever the rationale is you use to get that reduction in the height there. MS. BERMUDEZ: She's stating that she's looking for something specific to this home, not just something in the area. So I mean, I have the records of high crime in the area, but it's not on this exact home, and I don't think that it should come down to the crime being directed to this exact home for them to have -- for them to allow the 6 feet (sic) fence up. And if their argument is that it needs to be able -- with it being a comer lot, you need to be able to view the lot, it's a chain link fence. Page 33 February 24, 2009 It's not like it's blocking anything. I don't understand. CHAIRMAN FIALA: Okay. Excuse me, please. Commissioner Halas, did you want to say something? COMMISSIONER HALAS: Yep. CHAIRMAN FIALA: I'm sorry. COMMISSIONER HALAS: First of all, this is a code enforcement case. MS. BERMUDEZ: That's my understanding. COMMISSIONER HALAS: We're not the Code Enforcement Board. So I think what really needs to do ( sic) is this needs to go through the process of going to the Code Enforcement Board, and then maybe possibly coming back to the Board of County Commissioners. CHAIRMAN FIALA: Okay. COMMISSIONER COLETTA: But -- okay, go ahead. COMMISSIONER HENNING: What's the address of the -- MS. BERMUDEZ: 1322 Orange Street. COMMISSIONER HENNING: Orange Street. MS. BERMUDEZ: In Inimokalee. COMMISSIONER HENNING: Okay. You know, my opinion is, if, you know, Susan said she'd give it one more shot, that's being very respectful, and you might be able to resolve this issue. There's still going to be a code enforcement case on this, it sounds like, with the gazebo or something like that. MS. BERMUDEZ: I've taken care of that. I brought that up to code. It's just the fence, the 3 feet down to the sides and then the 3 feet and the 4 feet. He wants to stay at the 6 feet for his own safety and concern of his family. He has small children in the area, and he has small children at home. He feels safer with the 6 feet up. COMMISSIONER HENNING: The -- does that sound reasonable, County Manager? MR. MUDD: She's going to provide specific information to Ms. Istenes. Page 34 February 24, 2009 COMMISSIONER HENNING: Well, if she doesn't -- MR. MUDD: If Ms. Istenes makes -- she needs to lay it out. COMMISSIONER HENNING: Right. MR. MUDD: And that's fine. COMMISSIONER HENNING: And I'm okay with that. CHAIRMAN FIALA: Okay. So do have you clear direction or would you like anything clarified? MS. ISTENES: Thank you for asking. I do have clear direction. I would like to offer one other comment though. I appreciate your comment on recognizing that there really isn't a lot of criteria for staff to go by. That's essentially why we kind of don't just hand these out to whoever asks. I mean, they really have to make their case. And you know, maybe the board should consider making the fence height up to 6 feet in the code in general if -- you know, if they feel that that's warranted. That's another option. But I would be perfectly happy not to have this process in our code or at least to adopt some very specific criteria. I still think it's going to be really subjective though. Food for thought. CHAIRMAN FIALA: Yeah. That is something that we should be talking about possibly, huh? COMMISSIONER HENNING: Yeah. We should give our staff some criteria to go by to do any kind of variance. We do it with setbacks. MS. ISTENES: Correct. COMMISSIONER HENNING: Correct? But there are other cases in there, and that should be on the second LDC, whatever you call it, administrative code. MS. ISTENES: No. This actually would be in the Land Development Code, I believe. But, you know, we could look at it or we could just eliminate the process, and they would have to go through a regular variance and, quite frankly, I would probably Page 35 February 24, 2009 recommend that. At least you get public notice. I mean, people are pretty particular about fences in their neighborhood and the appearance of their neighborhood and, you know, at least that way they would have public notice and be able to show up and discuss it with you. COMMISSIONER COLETTA: Just one last comment, if I may. CHAIRMAN FIALA: Sure. COMMISSIONER COLETTA: Susan, I want you and whoever's listening to understand, it's not staff that I'm finding fault with in any way. These are rules that the commission passes down after a long and lengthy process, and when those rules are passed down to you, you have to interpret it very, very carefully to what the commission's wish was at that time, and you do a very good job in that direction. So if some of those questions seemed to be a little bit pointed, they weren't meant to be. MS. ISTENES: Thank you. No, I didn't take it that way, but I appreciate your comments, Commissioner. CHAIRMAN FIALA: Okay. So maybe we can, at some point in time, bring this back to make it a little more clear for our staff and give them better direction. MS. ISTENES: Is that what you want to do, or do you want me to just eliminate the process from the code? COMMISSIONER COLETTA: Give us both options. CHAIRMAN FIALA: Okay. COMMISSIONER COLETTA: Meanwhile, you've got your marching orders. CHAIRMAN FIALA: Oh. Commissioner Coyle? COMMISSIONER COYLE: Can I make a suggestion to make that more clear, the guidance to staff more clear? Rather than bringing it back, I mean coming back and having another meeting to discuss something, why don't you just submit to us a proposal to change it? It could be included in our agenda package for discussion. And if you Page 36 February 24, 2009 have a better idea on how to deal with situations like this, you know, please give us your specific wording or the proposed action with an assessment of the advantages and disadvantages. CHAIRMAN FIALA: I like that. MS. ISTENES: I can do that, sure. COMMISSIONER COYLE: And that way we can just act on it if comes back. CHAIRMAN FIALA: Absolutely, thank you. Okay. Thank you. Thank you for coming. You will be working with Susan. MS. BERMUDEZ: Okay, that's great. Thank you for your time. CHAIRMAN FIALA: Okay, Mr. Mudd. Item #6C PUBLIC PETITION REQUEST BY MICHAEL CONWAY DISCUSSING THE COST OF UNWARRANTED CALLS TO SHERIFF DEPARTMENT, CODE ENFORCEMENT, ANIMAL CONTROL AND W A8TE MANAGEMENT - COUNTY ATTORNEY TO WORK WITH SHERIFF'S OFFICE TO PREP ARE A FALSE REPORT ORDINANCE MR. MUDD: Commissioner, that brings us to 6C. It's a public petition request by Michael Conway to discuss cost of unwarranted calls to the Sheriffs Department, code enforcement, animal control, and Waste Management. Mr. Conway? MR. CONWAY: Madam Chair, Commissioners. I'm no stranger to the MPO. I did six years as the chairman of the bicycle -- Pathways Advisory Board. Many, many years ago. In fact, I adopted the Pathways Advisory Committee MPO items with county staff, which was Anita Chapman at the time. Now, to come to the issue at hand, because of my county Page 37 February 24, 2009 background, seeing -- and Mr. Mudd asking for department budget cuts, I see at least 133 calls in May of -- no, excuse me -- 33 calls of May of2008 and 21 calls in January of2009 from one individual, and I can assure you there's more individuals in the county that are doing this same thing. My mother passed away on 19 -- or 2000, and she had dementia and she had to call 911 all the time until I took the phone, and it cost me about $200 for each call. If there's any way that the board can instruct staff to look for some kind of an option or some kind of a penalty phase for recouping the cost -- this particular individual calls code enforcement every day, as per Tom Keagan and Patty Patuly (phonetic). He's called animal control numerous times. There is a fiscal responsibility of some sort to try and recoup some of these funds. It costs county staff a lot of money. Estimating the Sheriffs Department can make -- can save $36,000 in one year, and that's figuring -- I talked to Lieutenant Gibbons, and he's not sure exactly what per-call response cost is, but estimating at a hundred dollars, you're looking at, ifhe calls every day, and sometimes two deputies respond -- so that's -- that's, easy, $3,000 a month. And then you add in code enforcement, animal control, calls to Waste Management, and Waste Management, of course, is a contractor to the county . So if there's any way -- I don't have a -- any idea how you can fix it, but if you can ask staff or maybe the county attorney to relook at it, maybe somebody can come up with some kind of a remedy to the situation. CHAIRMAN FIALA: Commissioner Henning? COMMISSIONER HENNING: Well, my preference is to give the county attorney some guidance to look at some ordinance or something like abuse of fee ordinance, and in the interim, direct the county manager that the properties in this area, there'll be no Page 38 February 24, 2009 anonymous complaints of code enforcement or any other complaint department. And we also have the Sheriffs Department here. I'm not sure if they're here for this issue, but it would be nice to hear, if they are here for this issue, to hear their experiences. CHAIRMAN FIALA: Would you mind, Commissioner Coyle, hearing from them first? COMMISSIONER COYLE: No, I think I'd like to do that. CHAIRMAN FIALA: Thank you. Would you like to get up and talk to us? COMMANDER McDONALD: Good morning, Commissioners. I'm Commander Bill McDonald from the Sheriffs Office. This is Sergeant Doug Dever. We're here really just to answer any questions there might on this matter. Sheriffs Office is in a rather unique situation that any call we receive may be life threatening, so we really can't make a decision not to go on calls from certain members of the public, and we really can't get in a position to not accept anonymous calls. So we really -- if we have people who want to call often, as of right now, we pretty much are going to respond to each time unless they are, in fact, filing some sort of a false complaint. But if they truly believe they have an issue, then we will continue to respond. CHAIRMAN FIALA: Thank you. Commissioner Coyle? COMMISSIONER COYLE: You have a different policy with respect to burglar alarm calls, don't you? COMMANDER McDONALD: A different policy than? COMMISSIONER COYLE: Does not the Collier County Sheriffs Agency require that any home or business that has more than one false alarm during a specified period of time has to pay a penalty? COMMANDER McDONALD: Yes, sir. There is an ordinance in which the county has assessed fines for responses to false alarms. Page 39 February 24, 2009 COMMISSIONER COYLE: And wouldn't it make some sense in your mind to have the same kind of ordinance apply for any other calls that are unnecessary? COMMANDER McDONALD: Well, even in the alarm ordinance, if an individual believes that they're in danger and they push a panic alarm, then they -- they have met the reason to press the alarm. They thought they were in danger, they thought they had a problem, they requested services, and we don't mark those as a false alarm per see COMMISSIONER COYLE: And if I were to have 33 panic alarms in one month, you -- COMMANDER McDONALD: We may look at that, yes, sir, and I'm not sure -- that's not a decision that I can make. COMMISSIONER COYLE: Have you -- either of you personally responded to calls by the gentleman involved? SERGEANT DEVER: Yes, sir, I have. COMMISSIONER COYLE: What has been your overall impression of the urgency of these calls and the legitimacy of those calls? SERGEANT DEVER: In his particular mind they've been legitimate and urgent. I know Mr. Conway mentioned 911 earlier, but this particular individual is not calling on 911. He's calling our normal nonemergency number requesting service from the officer or supervisor for what, in his mind, is an issue that he needs our assistance with. CHAIRMAN FIALA: Commissioner Halas? COMMISSIONER HALAS: I understand where you're coming from, Sheriff. I think that this could also relate to code enforcement issues. Sometimes we have individuals out here in the county that continually call code enforcement on issues, and it costs us money also, just as it costs the Sheriffs Department money. And in these times, we need to be more -- do more due diligence in regards to just Page 40 February 24, 2009 how important some of these calls are so that we have the resources available when we really need to act upon issues and emergencies. So I would hope that we can give the guidance to the county attorney hopefully to come up with some ordinance that still protects the people, but people who habitually make calls to either the Sheriffs Department or to Waste Management or to code enforcement, that we can, some way or another, make sure that these habitual callers, some way or another, help fray -- defray the cost of going out to administer complaints. CHAIRMAN FIALA: Commissioner Coletta? COMMISSIONER COLETTA: Yeah. I can understand the problem that exists. I mean, I was a victim of this in the past for quite a few years where I was getting code enforcement violations brought against me on a daily basis that just didn't exist. Back then, I guess there was a little bit of leniency as far as how code enforcement had to handle these things, and they just -- they got to the point they wouldn't respond anymore. Of course, that was under old rules, and we're talking about today's world. So at this time, at this point in time, I do think we've got a serious problem. Mr. Conway, what you're feeling, the wrath of this gentleman's displeasure, for whatever reason, you're not the first one. It's many people before you. I mean, we could start a -- probably a gallery of people that would be more pictures than we have hanging up in the hallway of former commissioners. I do think this is something that deserves something. Possibly the county attorney could be directed to do some research and see how other communities handle it so we don't get in some sort of lawsuit with someone over taking away their civil rights. That's a big issue h~. - You heard the Sheriffs Department state the fact that regardless of what happens, they have to respond. I don't know how -- you know, with the idea being that if they didn't respond and something serious Page 41 February 24, 2009 did happen, then who would be at blame? So -- but I think this is something the county attorney has to handle and come back with. CHAIRMAN FIALA: And if the county attorney, in preparing this ordinance, can identify those calls that might be nuisance calls -- it must be difficult to live in a neighborhood where you have no peace, no friendship, no cooperation. It must just be awful. But anyway, if you could charge them for each one of these calls that's declared a nuisance -- MR. CONWAY: It would stop. CHAIRMAN FIALA: -- and send them a bill once a month, $2,000, $10,000 or whatever it is for each of those different calls that affects us. We're in such a dire strait as it is now financially as far as the county goes, we just cannot waste time on frivolous calls. Calls that have some meaning to them, that's one thing, but somebody who habitually calls for, you know, a hangnail, we need to charge them and let them know that they can pay for the services we provide, in my . . opInIon. COMMISSIONER COYLE: I would support that guidance to the county attorney. I think he might have some guidance for us right now. MR. KLATZKOW: Yeah. Our office has looked into this. Other jurisdictions handle this problem with a false reporting ordinance, and it does involve fining people who are habitual users of false reports on their neighborhoods. What I'd like is permission from the board to work with the Sheriffs Office, come up with an ordinance that they would be comfortable as well. And then once we've got comfort level with the Sheriffs Office, we'll bring back a draft copy for the board for further guidance, and then we'll go on to advertising and bring it back to the board for vote. CHAIRMAN FIALA: Thank you. COMMISSIONER COYLE: I'll support that. Page 42 February 24, 2009 CHAIRMAN FIALA: Okay. COMMISSIONER HALAS: Me, too. CHAIRMAN FIALA: And I've got some nods from board members. Very good. Thank you. COMMANDER McDONALD: Madam Chair? CHAIRMAN FIALA: Yes, sir. COMMANDER McDONALD: We'll be happy to work with the County Attorney's Office, and I also think that it needs to be stated that we prioritize our calls, so it doesn't necessarily mean that an officer is rushing right to one of these calls, and some of these calls are handled by a telephone rather than actually responding, especially with some of the individuals. And this isn't the only one of these that call and -- CHAIRMAN FIALA: Oh, we each -- COMMANDER McDONALD: -- want to discuss issues. CHAIRMAN FIALA: -- have some in our districts, yes, and we pretty well know their names. The sad thing is, when that person who habitually calls actually at some point in time really has a legitimate concern, it's like crying wolf, nobody -- nobody believes them anymore, and so they only hurt themselves and shoot themselves in the foot. But anyway, thank you. Thank you, Mr. Conway, for coming in. I know we can work with you, as you can see, and we'll be coming back to discuss this. MR. CONWAY: Thank you, ma'am. CHAIRMAN FIALA: Thank you, gentlemen. Item #6D PUBLIC PETITION REQUEST BY JOANIE GRIFFIN DISCUSSING THE PERMITTING ISSUE AT JOANIE'S BLUE Page 43 February 24, 2009 CRAB CAFE - PETITIONER TO WORK WITH STAFF TO BRING INTO COMPLIANCE MR. MUDD: Commissioner, that brings us to our next public petition, which is a request by J oanie Griffin to discuss a permitting issue at Joanie's Blue Crab Cafe. MS. GRIFFIN: Good morning, Commissioners. I'd like to thank you for this opportunity to allow me to speak to you today about my cafe. In 2003 I gave the running of my restaurant to my daughter, Terri Rementeria, because I had a major shoulder replacement operation. During this time, I was diagnosed with an eye disease called ICE eye syndrome, which is an off-the-wall strain of glaucoma. It was during this time'she built a deck onto the rear of my store without my knowledge. In 2005 of October (sic), we had a disagreement because of money and the mishandling of store money and keeping everything about the store from me. She threw a tantrum in front of my store that was uncontrollable, and I called the law because I was afraid. She threatened me with all kinds of things, one of which was turning me in for the building of the deck illegally, which I never knew. In January '06 I was served papers that my daughter was suing me and, yes, she did all the horrible things she threatened to do. The code enforcement came out and told me to get a permit, and that is when I went to the county to make the right. I took a sketch of the deck with measurements. When I got -- went to get the permit, they told me I had to have a professional architect to draw up the plan, so I found James E. Hirsch & Associates. I paid them $500 for a professional drawing. I go back to the county with my professional drawing, and they sent me to the next booth, and the lady asked me if I had a site plan. A Page 44 February 24, 2009 site plan? What is that? It's a survey. So, back home I go and I find Florida Surveys Corporation. This cost me $1,200. When I returned they tell me I must get a permit and tear it down. I call my commissioner's office and speak to his secretary, and she tells me she will speak to the commissioner. She agreed it was wrong. I never heard from anyone, and I was so busy running my business, I just prayed it was okay. I was afraid to call. I told myself, no news is good news. I'm sorry for that. I just couldn't face another rejection. My restaurant is located quarter-mile east of the smallest post office in the United States. People love my cafe and even stop and take beautiful pictures of it, and they bring them inside and give them to me. It is Old Florida with porches and paddle fans, a lot of atmosphere. I have postcards from around the world. People come from everywhere. And this has been going on since I opened in 1987. I'm an oasis in the middle of the Everglades, a place that is clean and orderly and you find love and camaraderie in the air. The food is fresh and cooked to order, soup's fresh from my gardens, I have made music on Friday through Mondays. I hope to have music in the future every day as I grow. Once you stop and see for yourself, you will make a point to eat anytime you're in the area, and sometimes you may even plan a day around Joni's. You'll find Joni's all over the Internet, just everywhere. Utube, I've had commercials made there, all kinds of TV recordings. Anyway, I could go on and on, and I don't want to get off the subject. But my deck is the important part of my cafe from which customers can observe the beauty of the Everglades and comfort while enjoying the good-food and good-music atmosphere. I have been there for 21-and-a-half years, and my advertising is word of mouth. I have been written up in newspapers all over Florida, Chicago even. I don't know how they find out about me, through word of mouth and the Internet, I guess. Page 45 February 24, 2009 I've been told I'm a novels (sic). I've had a couple stop, screech the brakes because they saw Joni's Blue Crab Cafe, and they'd just read a book and it talked about my store, and I've had this told me two or three different times, different books I've yet to have the time to read. I'm asking you, County Commissioners, have mercy on me. Let me keep my deck. I'm an important part of Collier County. I have people from all over the world that come through 41, and they make a point of coming back. I just want to thank you for your attention and hope that you will find in your heart to let me keep my deck. CHAIRMAN FIALA: Commissioner Coletta? COMMISSIONER COLETTA: Yes, thank you. One thing I need to correct for the record, a little oversight. Mrs. Griffin mentioned the fact that she called the commissioner's office, and she asked to speak to the commissioner, and she said, I never heard from anyone. That's not correct. The phone call was returned, the public petition was delivered to her, numerous communications back and forth, and that's why Mrs. Griffin's here today. And I'm sure that's nothing more than an oversight, but I don't want anybody out there to think that I don't return my phone calls. I do. MS. GRIFFIN: Oh, no. This was -- you did return this last one. COMMISSIONER COLETTA: But the problem is, that statement was just read into the record and it indicates that I've been -- haven't been -- MS. GRIFFIN: No. You've been a wonderful commissioner. COMMISSIONER COLETTA: Well, thank you very much. I hope you feel like that when you get through today, but -- MS. GRIFFIN: Well, I -- COMMISSIONER COLETTA: Let me go right to Joe Schmitt, ma'am, because Joe is the one that oversees the whole Department of Page 46 February 24, 2009 Community Affairs there -- excuse me -- community development. Joe, give us a briefing on the building that was done without a permit. Is there any way that this could ever pass the muster in the county? What can be done to be able to try to alleviate the -- MR. SCHMITT: Good morning, Commissioner. Joe Schmitt, your community development administrator. I'm putting on the overhead pictures of the deck. I have several pictures, but I guess that's about as good as we can show. I have a few more. This one is a little bit different angle. Jim, will you put that one on? The problem here is this is a commercial establishment. Legally, any addition has to be placed and put in by a licensed contractor. I understand that this was done by high school students or whatever, through self-help. It's -- does not meet any element -- or does not meet the code. In fact, the railings, in specific, do not meet the code. They're supposed to be a 4 -- no greater than 4-inch separation between the railings. They run horizontal. They're supposed to run vertical. I do have -- and Jim, if you want to put -- these are the drawings that I have that were submitted. Interestingly enough, they were stamped and sealed. You can't hardly make out the stamp and seal, but the -- in the lower comer there -- Jim's got his finder on it -- there's an overview of the stamp and seal. But the drawings do not meet code either. Basically it would have to go through permitting. It would have to go through a plan review. In that this is a commercial establishment, it would also go through fire review, would have to go through those type of reviews. This is an area of critical state concern, which is that portion of the county, of course, that has a special treatment for any type of expansion of a business. The business is a legally nonconforming structure. Whether they could expand the deck is still to be determined as well. Page 47 February 24, 2009 And I apologize. Certainly the applicant, in order to go through this, should have had a professional proceed with it. She came in. We told her that she had to have drawings. She got the drawings. The drawings are no problem from the standpoint we have them. Whether they're correct or not would have to be reviewed. The survey I need as well because that would serve as a spot survey, but we would need a Site Improvement Plan or Site Development Plan which shows the location of the deck and whether that would even be allowed because it is, again, expanding, what is termed to be a legally nonconforming structure right now in the area of critical state concern. So I think from the board's point of view, I don't think you have any leeway to approve this, because I believe -- and I would defer to the county attorney -- but it may place you in a position of liability if there was anybody hurt or -- there was any type of situation out there. And I would point out as well this deck certainly puts the owner or the proprietor in a very precarious situation because if anything were to happen, this deck has not been properly permitted, not properly inspected, and an extreme liability issue on the owner itself in regards to anybody even being injured on this property. So I guess from that standpoint, I don't know if you have any questions, but it really needs to go through the proper review and inspection process. It just simply cannot be approved here today. COMMISSIONER COLETTA: Well, one question, Mr. Schmitt. Is there any possibility that the -- while going through this process, the deck could remain where it is, or is this process going to drag out for a year or longer? MR. SCHMITT: I can't answer that specifically, the time frame, because I don't know whether this is increasing the nonconformity, meaning that -- as far as the footprint of the establishment, but we certainly can work with the owner and Ms. Griffin, is it; is that correct? Page 48 February 24, 2009 MS. GRIFFIN: Yes. MR. SCHMITT: Yes. We'll work with Ms. Griffin and help her through the process. Unfortunate she came in, she thought she was doing the right thing. My citizen liaison can work with her and help her get through the process, but it's going to -- she's going to probably have to hire a professional to do the site plan. Now, whether it stays up, it -- again, it puts the county in a situation of exposing itself to liability. And I can't make that recommendation. That's something that -- if you choose to allow, but it's something that we would -- we would red tag it and not allow it for any use until it met the code. MS. GRIFFIN: May I say something? Code enforcement came out and checked that deck and told me what to do to make it right, and I did everything he told me to do. And I thought these people were legal people. If I can't count on the code enforcement to give me the right information and I did everything they told me to do -- I thought I did. I mean, his legal stamp's on these papers and these are legal businesses. How is a layperson to know that somebody's not being honest? CHAIRMAN FIALA: Okay. Now, excuse me. We also have code enforcement here, we have Commissioner Halas waiting. Did you want to hear from code enforcement first, Commissioner Halas? COMMISSIONER HALAS: Well, to start with, this is a code enforcement issue again, and I'm tired of hearing these code enforcement issues, and it sounds to me like it's also a family issue. And I'm sorry, but I just feel that there needs to be some -- this needs to go through code enforcement first and the Code Enforcement Board to make a determination, and then -- instead of us sitting here trying to come up with -- addressing this thing on the fly. Sounds to me is -- if we try to approve something like this, then we're going to be liable. And if this thing doesn't meet the commercial building portion and hasn't gone through commercial review or fire Page 49 February 24, 2009 review, I've got some real concerns of this. Thank you. CHAIRMAN FIALA: Commissioner -- MS. GRIFFIN: No code en--- CHAIRMAN FIALA: Excuse me, please. Excuse me. MS. GRIFFIN: I'm sorry. CHAIRMAN FIALA: Commissioner Coyle? COMMISSIONER COYLE: Joe, would you put up -- on top of this one, I'd like to see this photograph -- maybe slide that up a little higher on the page, and the photograph -- or the drawing, engineering drawing, of the railings. MR. SCHMITT: Yes. The railings do show 4-inch separation. COMMISSIONER COYLE: They're still horizontal. MR. SCHMITT: They're still horizontal. COMMISSIONER COYLE: But would you -- can you show that on this slide, please, so that the other commissioners can see what's happening. No, that's not the one. MR. SCHMITT: Wow, that was quick. You caught that right away. COMMISSIONER COYLE: Yeah. MR. SCHMITT: Yes. COMMISSIONER COYLE: Now, let's slide it down a little bit so you can see that vertical post. That's the railing. Not quite so far. That's the railing, and it shows two-by-fours spaced four inches apart on that railing. You can clearly see that that diagram is not reflecting what actually is there. MR. SCHMITT: That's correct. COMMISSIONER COYLE: So if that -- if that diagram, that stamped diagram is what was supposed to have been built, it wasn't even built in accordance with the drawings that were stamped by an . engIneer. MR. SCHMITT: That's correct. COMMISSIONER COYLE: So when we're talking about truth Page 50 February 24, 2009 and who's telling truths, I think we need to take a look at that. MR. SCHMITT: And the four inches, so you understand, it's so a child can't stick its head in through the posts -- COMMISSIONER COYLE: That's exactly right, yeah. MR. SCHMITT: That's exactly what it's for. COMMISSIONER COYLE: And anyway -- but I would like to ask the county attorney for his advice about whether or not we should insert ourselves into the process that's being considered by the Code Enforcement Board. MR. KLATZKOW: Joe, is this a health, safety, welfare matter? MR. SCHMITT: I would say it is because it's not been inspected and it's not been approved by the building department or the fire -- fire . reVIew. MR. KLA TZKOW: I wouldn't touch this. MR. SCHMITT: I mean, we'll be glad to work with Ms. Griffin. We've got the drawing. I don't even know if that drawing meets code because it hasn't been reviewed. COMMISSIONER COYLE: But you have to take whatever action protects the interests of Collier County -- MR. SCHMITT: That's correct. COMMISSIONER COYLE: -- against liability. MR. SCHMITT: I have to enforce the code. COMMISSIONER COYLE: You must be absolutely certain that that is done, because the last thing we want to do is get hit with a lawsuit if somebody is injured here, particularly a child. MR. SCHMITT: That's right, and they'll go for the deep pockets, absolutely. Anybody gets injured, the deep pockets -- COMMISSIONER COYLE: My motion is to -- that we shouldn't touch this issue. It is a health, safety, and welfare issue and a code enforcement issue and creates substantial liability , and we should not get involved in it. MR. SCHMITT: If it -- and I would answer, Commissioner Page 51 February 24, 2009 Coletta, if it were a private residence, we might be able to work, but you are putting yourself at risk being a commercial establishment. CHAIRMAN FIALA: And did I hear a second to this motion? COMMISSIONER COYLE: I guess not. COMMISSIONER COLETTA: You don't even need a motion. COMMISSIONER HENNING: Yeah, you don't. CHAIRMAN FIALA: Okay. Well, thank you for trying anyway, I appreciate it. I would second it, but as long as I don't need one. Okay, fine. Commissioner Coletta? COMMISSIONER COLETTA: Just one last comment, and then we'll let this go. And I appreciate you being here. You're here as part of a public process that's available to all citizens. I strongly believe in it. I'll never apologize to my fellow commissioners for bringing people in the public on issues such as this. This is where you get to be able to talk directly to commissioners that are up here; however, with that said, Commissioner Coy Ie is right. The laws and ordinances of this county have to be followed, especially on health, safety, welfare. But with that said, your being here today, I'm sure that you're going to be able to have some time with Joe Schmitt to find out what is the quickest path you can get to be where you need to be as far as -- MS. GRIFFIN: I only -- COMMISSIONER COLETTA: -- getting this permitted. MS. GRIFFIN: -- wanted to do what was right from the very beginning. COMMISSIONER COLETTA: I understand. MS. GRIFFIN: And I thought I was doing right. The man, the Hirsch that came out and drew that plan, I don't know if that's what it was supposed to be. CHAIRMAN FIALA: Thank you. Thank you very much. COMMISSIONER COLETTA: Thank you so much for being here today. Page 52 February 24, 2009 CHAIRMAN FIALA: Okay. And with this, we're going to take a ten-minute break before we go to our 10:30 time certain. Thank you very much. (A brief recess was had.) MR. OCHS: Ladies and gentlemen, please take your seats. Madam Chair, you have a live mike. CHAIRMAN FIALA: Thank you. Thank you. And now we're back here for our 10:30 time certain. MR. OCHS: Yes, sir. Go ahead, Jim. lOB. Item #10B COMMISSIONERS PROVIDED DIRECTION TO THE COUNTY ATTORNEY AND THE COUNTY MANAGER, OR HIS DESIGNEE, RELATING TO THE OPTION TO CHANGE THE REQUIREMENTS FOR THE ASSESSMENT OF IMPACT FEES FOR CHANGES OF USE IN EXISTING BUILDINGS - APPROVED W/FOLLOW-UP REPORT IN ONE YEAR MR. MUDD: It's lOB. It's the -- it's a recommendation that the Board of County Commissioners provide direction to the county attorney and the county manager or his designee related to the option to change the requirements for the assessment of impact fees for changes of use in existing buildings. Ms. Amy Patterson, your impact fee and economic development manager, business management office of community development's environmental services, will present. You're sure getting a long title. MS. PATTERSON: Good morning. For the record, Amy Patterson. I'm here on the board's direction with some suggestions for possible changes to our requirements for changes of use. The majority of this is detailed in the executive summary. I can-- I have a brief presentation that just goes through the highlights of that Page 53 February 24, 2009 executive summary, or I can go right to your questions. Whatever the pleasure of the board is. COMMISSIONER COYLE: Motion to approve. CHAIRMAN FIALA: Second. COMMISSIONER HENNING: Second, second. CHAIRMAN FIALA: Okay. That's great. I just wanted to ask one question, Amy. I was the one that proposed this in the first place, and I want to thank you for putting together -- this is great. But it says commercial. Does commercial mean retail also? MS. PATTERSON: (Nods head.) CHAIRMAN FIALA: Okay. I just wanted to ask that on the record because I wanted to make sure it covers all types. And does it also cover like orthodontists' offices or physicians' offices or chiropractors' offices? MS. PATTERSON: It will cover all nonresidential uses, so that will be all offices, retail, general, industrial. It will be all of those categories. CHAIRMAN FIALA: Great. Now, let's see. We have Commissioner Henning first. COMMISSIONER HENNING: Yeah. Amy, you did an excellent job on this. I mean, you recognized concerns of the county manager about people paying the less impact fee and you put a limitation on that. This is a limited program. Once the economy turns around, you know, we can do away with it, and I'm hoping that it's very successful. And I thank you, Commissioner Fiala, for bringing the idea up. CHAIRMAN FIALA: Oh, thank you. Commissioner Coyle? COMMISSIONER COYLE: I don't have any other comments. I think it's a great program. CHAIRMAN FIALA: Okay. Commissioner Halas? COMMISSIONER HALAS: Yes. I would just ask one thing. Page 54 February 24, 2009 What I would be interested in is to see how many people respond to this, and also to report back to us in a year's time in regards to this. And I'd like to know if it's possible from staff to tell me the buildings that were changed from one use to another use and what impacts that had as far as impact fees to the Sheriffs Department and to our transportation requirements, okay. MS. PATTERSON: Certainly. COMMISSIONER HALAS: Just -- that's all I need to know. MS. PATTERSON: Absolutely. COMMISSIONER HALAS: And if you could report back in a year's time to let us know how many took advantage of this. MS. PATTERSON: Okay. COMMISSIONER COYLE: I'll be happy to make that part of my motion, the reporting requirement at a year's -- COMMISSIONER HALAS: Yep. COMMISSIONER COYLE: -- one year intervals. CHAIRMAN FIALA: Okay. And I will include that in my second. And Commissioner Coletta? COMMISSIONER COLETTA: Yes, thank you. Amy, the -- this issue -- let me approach some questions from a little different direction. If -- would this allow somebody that's presently in a building as an owner or a renter that has paid the proper impact fees to allow that person to be in the building, leave that building to go to another building where they haven't paid the impact fees and possibly the cost of the building or the rent may be less? MS. PATTERSON: Yes, it would -- if there was a benefit to them to move to another location, but if they'd already found a location where they were doing business, it would be up to that individual tenant. COMMISSIONER COLETTA: Yeah, but staff doesn't have any oversight on that? Page 55 February 24, 2009 MS. PATTERSON: No, we don't have any oversight on that. The only oversight we have is that the space -- or the building has to fit into the criteria of this program, which is pretty restrictive. COMMISSIONER COLETTA: Okay. So there's the possibility that somebody that has paid the fee up front could lose their tenant to another building that doesn't -- hasn't paid the fee, and that hasn't been addressed in any form or way by this particular move. MS. PATTERSON: No. The movement of tenants has not been addressed by -- COMMISSIONER COLETTA: I know this is a nickel-and-dime item compared to what we're dealing with out there, but I'm concerned about the fairness issue of this whole thing. We're talking about -- and let's get the record straight. I had a personal occurrence happen to me, and I think Commissioner Fiala is familiar with the person that brought it forward. They came to me and wanted to rent a commercial building I had that had been empty for some time, and they wanted to put a more intense use in the place. I believe it was a girls' gymnastic studio, dance studio. And I told them before we could get into discussion on it to make sure that the building was suitable for what they needed it for, to go down and check it out with community development. They came back and they said, well, there's a $30,000 impact fee because it's a more intense use. And I wanted the tenant bad, but after it was explained to me how the more intense use comes into play, I understand the fairness of the whole thing and, of course, I lost a tenant. MS. PATTERSON: Right. COMMISSIONER COLETTA: So I'm having a little bit of problem with, who do we make whole by this whole thing. Now, I understand that the biggest issue out there has to deal with the medical -- the medical practices that are out there, the individual physicians that want to open an office, and the impact fees are just atrocious of Page 56 February 24, 2009 what's being charged. I kind of wonder if we shouldn't address it through a study, an impact fee study as far as a physician's office goes that would justify lowering the cost of it to something that's more realistic, because the way we're approaching it now, it's going to -- it's going to leave all sorts of holes open, and I would be very resentful if I had paid the full impact fees on my building, and now my tenant's going to leave to save another $500 a month because of the fact this commission is going to give them the power to be able to not pay impact fees for two years. CHAIRMAN FIALA: No, that isn't the case at all, Commissioner Coletta. Maybe -- or at least not the way I see it. What I understand-- that same gymnastics group had also wanted to move into the industrial section off Mercantile. They found a building that had been used by trucking -- by a trucking organization that had warehousing and so forth, they had trucks coming and going all the time. They were only going to operate in the evening just as a little dance studio. But, again, they were going to be charged $30,000 as an impact fee. Now, the impact from the trucks coming and going all day was far greater than the dance studio but yet the provision wasn't there for them to move in there. They were now considered a retail store because they didn't have a category for themselves. What I'm saying is, if we've got a building sitting there empty, I don't care what building, the impact fees have already been paid because somebody's been in that building and somebody -- somebody wants to use that spot. Rather than turn them away, let's -- in this economy, let's give everybody an opportunity to move into these things. Once the impact fees have been paid, let them move in. COMMISSIONER COLETTA: And that's very noble, but the problem is, Commissioner Fiala, how would you feel if you got a call from one of your constituents that say, I just lost a tenant in my building in these hard economic times because of the fact I paid my Page 57 February 24, 2009 full impact fees for a more intense use and now they have left to go across the street because they can get the rent for less? They're -- there's going to be fallouts from this that are negative. I mean, no legislation we ever pass here is going to be perfect. . CHAIRMAN FIALA: Right. And do you know -- COMMISSIONER COLETTA: But still, I got a fairness issue about the whole thing, I really do. CHAIRMAN FIALA: We can't -- we can't determine whether somebody charges more rent than another. That isn't our problem. COMMISSIONER COLETTA: No, no, it's the market. The market determines it by the cost of the building, the cost of impact fees, the cost of taxes. Everything relates to the actual cost of rent that comes forward. If you don't pay impact fees, you can charge a lot less rent. So I submit to you that the impact fees have a direct impact on the rent itself. And even though I could benefit myself, I can see the logic that you should have to pay for something that you're receiving. This is my whole thing. I mean, if this commission had oversighting in each one of these where that person would come in and say, okay, so John Joe wants to be able to move into this building, this is the circumstances, brand new start-up business, it's going to get its feet on the ground, it's going to make a big difference, wonderful. But if that John Joe comes in and he's looking to move out of a building just because the rent's higher and the impact fees have been paid, then we would have the discretion. So I mean, if you're willing to twerk it so that it comes back to us for a quick review on consent agenda so we can just look at it, I'd be more than agreeable. CHAIRMAN FIALA: I don't think so. But, you know, we've got a couple more commissioners waiting, and we have two speakers. Let's get to our speakers, and then we'll hear Commissioner Henning and then Commissioner Halas. Page 58 February 24, 2009 MS. FILSON: Debbi Grant? She'll be followed by Bob Murray. MS. GRANT: Good morning. My name's Debbi Grant. I'm a local Realtor. I do both residential and commercial here in Collier County . Last Friday Dr. Hank Fishkind spoke to the NABOR meeting. Dr. Pishkind is a leading economist in Florida. He spoke about many things.. One of the things he spoke about the most was the way Florida had lost its competitive edge for Georgia and North Carolina for growth. Specifically, he said that was because of land costs and impact fees. Five different times during Dr. Fishkind's speech, he mentioned specifically Collier County's impact fees and the way they are a deterrent in our growth in this current economic times. Specifically I want to address this change of use impact fee. So far this year, in the two months of this year, I've represented two sellers of commercial property who've had bona fide buyers of their property. During the due diligence period for these buyers, it was dh;covered that a change-of-use impact fee would be -- needed to be paid. Both of these existing commercial buildings had had impact fees paid for general office use when they were built. They were both zoned for medical and office use. Because of the fact that they were changing from an executive office center with eight different businesses running in it to one doctor's office, the impact fee was going to be $80,000. As we all know, credit's very tight. Very difficult to secure any type of commercial financing. To borrow money for a commercial building is hard. To borrow $80,000 for a change-of-use impact fee, impossible. The deals are gone. No deals, no impact fees. What could have happened if these deals had been able to be saved, direct economic impact for Collier County, was over 21 local companies would have been providing services because of this sale. Everything from inspection companies, surveyors, movers, sign Page 59 February 24, 2009 companies, printing companies, 21 businesses did not get the job. No impact fees were paid. No jobs were gained. Thank you. CHAIRMAN FIALA: Ms. Grant, that's exactly what this is about is to do that. But I want to tell you about impact fees. Just as -- as a side note, you said it's hampering our growth. We've had the highest impact fees in the State of Florida, we've also had the highest rate of growth in the State of Florida, and we've also had the lowest millage rate tax base in the State of Florida. Just to clear that up. Thank you. MS. GRANT: Right. Well, this was Dr. Fishkind's comments on Friday. And it was not -- it was the overall use of impact fees and how it's affecting Florida right now in this economy and the fact that bricks and mortar in South Carolina, North Carolina, and Georgia cost the same as bricks and mortar in Georgia (sic). It's the other things that are making us not competitive right now. CHAIRMAN FIALA: Thank you. COMMISSIONER COYLE: Could I add something to that? CHAIRMAN FIALA: Sure. COMMISSIONER COYLE: That analysis is very badly flawed, and I don't care what economist specified it. The real issue that people take a look at is the total per capita taxation rate, not just for property taxes, but for their employees. Florida ranks about 39th in the nation in per capita taxation of its residents. That puts it pretty low compared to lots of other places. So I would have significant argument with Dr. Fishkind concerning his conclusions. He has made some of those same statements here, and we have -- we have shown him where we felt that his analysis was flawed. So it's an easy target. And I think as you learn how impact fees are calculated, you'll understand why they're high, because it's costly to live here. That's why it's high. Land values are high. So I think we've got to get away from the idea that there are easy fixes to this. All you've got to do is eliminate impact fees, okay. Page 60 February 24, 2009 MS. GRANT: Yeah. No. And I, by no means, am suggesting eliminating impact fees. The specific change-of-use impact fees, if not possible to be eliminated, if we could do something about how they're calculated, because it does seem so grossly unfair to medical offices. CHAIRMAN FIALA: Well, that's what we're doing now. Thank you very much. COMMISSIONER COYLE: Yeah, we're doing all that now, yeah. MS. GRANT: Thank you. MS. FILSON: Your final speaker is Bob Murray. MR. MURRAY: Good morning, Commissioners and staff. There is a motion on the floor to approve. I'm not quite certain what's going to be approved, but I hope it will be, in large measure, what was proj ected. On behalf of all of the young families who, as a result of this action, may very well be able to stay here and retain jobs on behalf of future entrepreneurs who may be able to start a business, I want to thank you, and I want to thank you for your leadership, because while our federal government is doing whatever it is doing to try to deal with this economic problem, we know that self-help, our own growth here, we're in charge of it. We may not feel we're in charge of it, but you folks are making us -- helping us to understand we are in charge of it, and we will get a handle on it. I don't have much more to say because there is no criticism, there is no right answer, but this is certainly a move in the right direction. We thank you very much. CHAIRMAN FIALA: Okay. Now, I think it was Commissioner Henning next. COMMISSIONER HENNING: Yeah, just briefly. I think every building out there, commercial building out there, in Collier County has paid impact fees. You can't get a permit without paying impact fees. Unless it was built in the 70's, unless it hasn't changed uses, Page 61 February 24, 2009 every building has paid impact fees. And I've heard from business owners who shut their doors down because their business is down and they went to their landlord and couldn't get a break of rent out there. So what this ordinance does, it tries to provide spurring business, people opening doors in Collier County to be more competitive with the market out there. It's good for the public. And, you know, if it doesn't work we can always change it or we can always delete it. CHAIRMAN FIALA: Thank you. Commissioner Halas? COMMISSIONER HALAS: Yes. I believe what was put into our agenda package was that the building had to be in existence for at least five years, and so, therefore, the impact fees were paid, and I would hope that this would give Commissioner Coletta a little comfort zone, realizing that impact fees have been paid and that we're hoping that this will help stimulate people who come to this community to look for existing commercial buildings so they can set up their business. CHAIRMAN FIALA: And Commissioner Coyle? COMMISSIONER COYLE: No, I have nothing more. CHAIRMAN FIALA: Okay, fine. I have a -- COMMISSIONER COLETTA: Oh, I'm sorry. My button just does not work. I push it -- I have to push it extra hard. COMMISSIONER HENNING: It's worn out. COMMISSIONER COLETTA: I think Commissioner Henning-- I think Commissioner Henning rigged it in some way. I just want to make it clear. It's not that I'm opposed to not collecting impact fees or the additional impact fees. The only thing I'm concerned about is the idea that -- in fact, we'll be able to tell as the program goes forward what the results were, about the shift of people from places that -- from one building to another where they'll be leaving places that have paid the correct amount of impact fees and it's reflected in the rent. May be totally wrong on it, but no one's answered Page 62 February 24, 2009 those questions to my satisfaction. Other than that, I don't have any problem. I wish we could just put everything aside for seven years for everybody out there. But, meanwhile, I want you to understand where my position is on this. CHAIRMAN FIALA: Thank you. And with that, let me call for the vote. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: Opposed? COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Okay . We have a 4-1 vote with Commissioner Coletta opposed. Thank you very much. Item #6E PUBLIC PETITION REQUEST BY FRANCIA STEVENS DISCUSSING THE GABRIEL PROJECT - STAFF TO WORK WITH PETITIONER REGARDING OPTIONS MR. MUDD: Commissioner, that brings us to our last public petition, which is a request by Francia Stevens to discuss The Gabriel Project. Ms. Stevens? MS. STEVENS: Thank you, Mr. Mudd, for putting me on the agenda, and thank you, Commissioners, for giving me a few moments to tell you about The Gabriel Project and how we need your help. The Gabriel Project works with pregnant teens and young women. They are usually referred to us by the Collier County Pregnancy Crisis Center or the Department of Children and Families or by word of mouth. Page 63 February 24, 2009 There's a group of about 15 volunteers who work with about 15 pregnant women. The idea is that we stay with them during their pregnancy and until the baby is two months old. What often happens is that the relationship becomes so strong and friendly that the relationship goes on indefinitely, and the mentors become adoptive grandparents to the mentees' babies. These people are often in good marriages but on the brink of hitting rock bottom financially, some of them are leaving or trying to escape an abusive relationship, and some of them are just teenagers who get into trouble. We work with them, we take them to and from their obstetrician's appointments, we provide them with cribs and car seats and diapers and rattles. We have some wonderful successful stories, and we have some heartbreakers. . My last client was a 17 -year-old who was the middle child of a mother who had seven children by several different men. She's grown up on Medicaid and food stamps, and I naively was sure that I was going to be able to turn this kid around. While she was pregnant, we were calling the baby Jeremy. At the birth the boyfriend was there. The baby is called Nirale because the boy thought that would make him sound like a stud. This kid is impossible to turn around. I'm brokenhearted. But on the opposite end, we have a young woman who had hit rock bottom who is turning into a wonderful mother who's gotten herself a job, who has qualified for a Habitat for Humanity home, and she's just doing beautifully. Our clients are Haitians, Latins, Caucasians, African Americans, but they are all Collier Countians. Our married women right now are facing evictions. Their husbands have been laid off from their jobs, and they are in desperate straits. So I'm here to ask for your help in giving us passes to the Collier Page 64 February 24, 2009 Area Transit for our girls so that they can get to and from jobs. They have no means of transportation, and bicycles just don't work when you're pregnant or a new mom. We -- you'll find Gabriel Project from coast to coast, and in some states, like Maryland and Texas, they are huge. They cover the whole state. Here we are just in Collier County, and we are totally independent of anyone else. So I'm hoping that you'll see the value of what we're doing and can help us provide passes for about 15 girls for a period of about six months. Being a Pollyanna, I'm sure our economy is going to turn around by then and we won't have to come back and ask you for six more months. Do you have any questions of me? CHAIRMAN FIALA: The first one I have is -- who was it, Commissioner Coletta? COMMISSIONER COLETTA: I came after Commissioner Halas. CHAIRMAN FIALA: You were first, Commissioner Halas? COMMISSIONER HALAS: I appreciate you being here today, and I understand the concerns that you have for these young ladies. We -- this transit system that we have in this county is very heavily subsidized, and I'm afraid if we make an exception to one group, that we will have other groups that are going to be in here with the same idea. MS. STEVENS: I won't tell anybody, sir. COMMISSIONER HALAS: I know, but word gets around. COMMISSIONER COYLE: We'll have a secret vote then. COMMISSIONER HALAS: I would hope that there would be a private individual or possibly a private group or a community organization that would step up and assist your needs. As I said, that our transit system is highly subsidized at the present time. And so I would hope that there would be an organization out Page 65 February 24, 2009 there that would help these 15 young ladies that you have in your organization. MS. STEVENS: We have our volunteers who are already digging into their pockets for the supplies that these young women need. And if the Collier Area Transit isn't standing room only and there are seats available, then these girls would have a hand up on getting to and from jobs or to and from training at Vo-Tech. CHAIRMAN FIALA: Let me interrupt you because we have three more people waiting to ask questions, okay, if I may? All right. Commissioner Coletta? COMMISSIONER COLETTA: Thank you. Marcy, would you come up front, please? There is other funds that are available that-- Commissioner Halas. is absolutely correct. The county doesn't have the ability to go into its general funds or the revenue from transportation and use it in this case; however, Marcy, isn't there funds available through the license plate fund, the "Choose Life" license plates that may be available for this? MS. KRUMBINE: For the record, Marcy Krumbine, director of housing and human services. We do get funding every year from the sale of the "Choose Life" license plates, and my office does administer that, and that is specifically for the care of women who are choosing to continue their pregnancies and choose adoption, and transportation is an allowable cost. And with the board direction, I'd be happy to look in to see if there's a connection there and to get legal opinion to see if the statute would allow it. COMMISSIONER COLETTA: I'm for that particular direction. CHAIRMAN FIALA: Okay. Commissioner, Co- -- were you-- were you next or was Commissioner Coyle? COMMISSIONER HENNING: Well, I was just going to say the same thing about the "Choose Life" license plate. CHAIRMAN FIALA: Oh, okay. Page 66 February 24, 2009 COMMISSIONER COLETTA: And you have one on your car? COMMISSIONER HENNING: Well, I used to have one on my former car. My wife didn't like the car, so I got rid of the car and the li cense plate. CHAIRMAN FIALA: Okay. And Commissioner Coyle? COMMISSIONER COYLE: Yeah. I think that's probably the only way we can go is to use some federal funds as a grant. But I'm going to ask you a question. Do you check to see if any of the recipients of these -- this aid are legal residents of the United States? MS. STEVENS: We do, and most of them are. We do have a couple who are not -- COMMISSIONER COYLE: Yeah, okay. I think we have a very generous community here in Collier County. I've never known a need that does not go fulfilled here in Collier County, particularly for women and children who are in danger in any way. But I've asked that question because I believe that first priority for the expenditure of Collier County tax funds should go to help Collier County residents and not to further the illegal immigration of people to Collier County. But we do not have the ability to apply that kind of restriction to federal funds or grants, so that if we get this money from the federal agency, I would be happy to support it. MS. STEVENS: Thank you. MR. MUDD: The state, sir. COMMISSIONER COYLE: I'm sorry, state. Well, it's the same thing. State doesn't care whether there're illegal immigrants here or not so-- , CHAIRMAN FIALA: Okay. So Marcy, then our direction is that you work through the license plate, "Choose Life" plates, for passes for them on the CAT system. So maybe the two of you can meet and discuss this. MS. KRUMBINE: Absolutely. What we'll do is we'll pull up the Page 67 February 24, 2009 statute, I'll work with the County Attorney's Office to see if that's a legal use of the money and they are a legal recipient, and we'd be happy to do that if all those things check out. CHAIRMAN FIALA: Thank you very much, and thank you for being here today. MS. STEVENS: Thank you very much. CHAIRMAN FIALA: Mr. Mudd, on to Item 9, huh? MR. MUDD: Yes, ma'am. Item #9A RESOLUTION 2009-42: APPOINTING DAVID H. FARMER (W /W AIVING SIMULTANEOUS SERVICE ON MORE THAN TWO COUNTY BOARDS) TO THE CLAM BAY ADVISORY COMMITTEE - ADOPTED MR. MUDD: Brings us to the Board of County Commissioners section. Appoint a member to the Clam Bay Advisory Committee. COMMISSIONER COLETTA: I make a motion to appoint David Farmer. COMMISSIONER COYLE: Second. MS. FILSON: And if you appoint Mr. Farmer, you'll have to waive the two-committee limit. COMMISSIONER COLETTA: Okay. And I include that in my motion. COMMISSIONER COYLE: That's in my second. CHAIRMAN FIALA: Okay. Motion by Commissioner Coletta, second by Commissioner Coyle. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. Page 68 February 24, 2009 COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) Item #9B RESOLUTION 2009-43: APPOINTING PATRICK PECK (FULFILLING THE REMAINDER OF THE VACANT TERM EXPIRING ON OCTOBER 1~ 2011) - ADOPTED MR. MUDD: Commissioner, that brings us to B, which is appointment of a member to the Affordable Housing Advisory Committee. COMMISSIONER COLETTA: Make a motion that we appoint Patrick Peck. COMMISSIONER COYLE: Second. CHAIRMAN FIALA: Motion by Commissioner Coletta, second by Commissioner Coyle. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) Item #9C Page 69 February 24, 2009 RESOLUTION 2009-44: APPOINTING DARRIN S. BROOKS (FULFILLING THE REMAINDER OF THE VACANT TERM EXPIRING ON DECEMBER 11~ 2011) - ADOPTED MR. MUDD: Brings us to our next item, which is C, appointment of a member to the Golden Gate 'Community Center Advisory Committee. COMMISSIONER HENNING: Motion to approve Darrin Brooks. CHAIRMAN FIALA: Second. COMMISSIONER COLETTA: Second. CHAIRMAN FIALA: Okay. Second by Commissioner Coletta. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) CHAIRMAN FIALA: Very good. Item #10A - Discussed and then continued to later in the meeting RESOLUTION 2009-45: DENYING THE ALTERNATIVE IMPACT FEE APPEAL SUBMITTED BY TAMIAMI SQUARE OF NAPLES, LLC (DEVELOPER) AND AUTHORIZE THE CHAIRMAN TO EXECUTE A NOTICE TO THE DEVELOPER FOR THE COLLECTION OF THE COLLIER COUNTY WATER- SEWER DISTRICT (CCWSD) AL TERNA TIVE IMP ACT FEE CALCULATION OF $120,904 FOR BUILDING 300 - MOTION TO APPROVE STAFF'S RECOMMENDATION TO DENY Page 70 February 24, 2009 APPEAL - ADOPTED; MOTION TO APPROVE PAYMENT PLAN OPTION #4 AS AMENDED MR. MUDD: Commissioner, that brings us to lOA. This item was continued from the January 13, 2009, BCC meeting and the February 10, 2008, BCC meeting, and was further continued to the February 24th 2009, BCC meeting. This item requires that all participants be sworn in and ex parte disclosure be provided by commission members. It's a recommendation to deny the alternative impact fee appeal submitted by Tamiami Square of Naples, LLC, developer, and authorize the chairman to execute a notice to the developer for the collection of the Collier County Water-Sewer District alternative impact fee calculation of$120,904 for Building 300. Mr. Tom Wides, your director of fiscal operations for public utilities, will start this presentation. CHAIRMAN FIALA: Very good. Sue, do we have any speakers on this item? MS. FILSON: No, ma'am. CHAIRMAN FIALA: Okay, fine. Thank you. COMMISSIONER HENNING: Question. CHAIRMAN FIALA: Do we really? Have to be sworn in? Okay, very good. I'm sorry. I'm sorry . We all have to declare ex parte. Let me start with Jim Coletta. COMMISSIONER COLETTA: Give me just one second. CHAIRMAN FIALA: Well, then with Commissioner Henning. COMMISSIONER HENNING: I met with staff, I also met with the appellant and the representatives. CHAIRMAN FIALA: Thank you. Commissioner Coyle? COMMISSIONER COYLE: I have met with staff, I received Page 71 February 24, 2009 correspondence, and that correspondence is included in my public file. CHAIRMAN FIALA: Commissioner Halas? COMMISSIONER HALAS: Thank you. I have had meetings with Jim DeLony, Tom Wides, Jennifer White, I believe it is now, and Mr. Gill Monsovias. I'm sorry if I butchered your name. And we've had a couple of discussions in regards to this with staff, and so -- I've had correspondence and meetings. That's the end of it, and I believe it's all listed here in my file. Thank you very much. CHAIRMAN FIALA: Thank you. Commissioner Coletta? COMMISSIONER COLETTA: Yes, thank you. I've had meetings, correspondence, emails, phone calls, and they're all in my file for anybody that wishes to see it. CHAIRMAN FIALA: And I, too, have met with staff and have had meetings and correspondence, and we've had a few things given to us to read thoroughly. And I'll just show for the audience that we have them here and on file. And would you like to swear everybody in, please. (The speakers were duly sworn and indicated in the affirmative.) MR. MUDD: Madam Chair, it's -- I said Tom Wides would start. He's started. He's going to sit down right now. But this is an appeal, and it is brought by Tamiami Square, LLC. Their counsel representing them is a Mr. Douglas A. Lewis, I believe. CHAIRMAN FIALA: Okay. Commissioner Henning has a question. COMMISSIONER HENNING: It's about the proceedings and the material. Do -- and this is -- is this the same as an appeal of an official interpretation? MR. KLATZKOW: Yes. COMMISSIONER HENNING: Okay. Now, is it -- we can only consider items that are in our agenda? Page 72 February 24, 2009 MR. KLA TZKOW: You can consider all items that have been previously submitted to you on this, which are your agenda items, as well as anything that's submitted during the course of this hearing. COMMISSIONER HENNING: Okay. So anything -- anything-- MR. KLATZKOW: Anything. COMMISSIONER HENNING: -- that is submitted. Should we allow a certain amount of time for presentations? MR. KLATZKOW: The recommendation that I talked about with the chair was that -- well, I had a memo on this in January, but this has been continued so many times, it may have gotten lost in the shuffle. My recommendation was that each party get an hour to present their main case and each party have ten minutes to ask questions of the other side, and then each party can have, you know, the ten minutes to wrap it up after that, starting with the petitioner since they are the ones who started the appeal. COMMISSIONER HENNING: Okay. CHAIRMAN FIALA: And if they hurry through it and don't take a full hour, we wouldn't mind that at all. COMMISSIONER HENNING: Well, Commissioner, you want to give the process the route that -- the ample time to do so. CHAIRMAN FIALA: Sure. COMMISSIONER HENNING: I guess my concern is, we're going to get started with this process, we have -- in another 15 minutes we have a time certain, at one o'clock we have a time certain. And is everybody okay with that, I guess? Personally, I don't think it's the correct way to do it. I think we need to hear it, hear both sides, and make a determination or decision all at once. CHAIRMAN FIALA: Well, let me ask --let me ask other commissioners, but first the 11 :30 time certain, we don't have one anymore, do we? MR. MUDD: We have -- we have a letter from the Clerk of Page 73 February 24, 2009 Courts that he -- saying that he will not be here for the 11 :30 time certain. CHAIRMAN FIALA: So that's off the board. COMMISSIONER COLETTA: Not necessarily. We might want to be able to discuss what our -- what actions we can do to make sure we understand what we do have in reserves. CHAIRMAN FIALA: Oh. Okay, fine. Very good. Well, board members? COMMISSIONER HALAS: I'd just as soon that we would go forward with this, and since the clerk isn't going to be here for the time certain, then we can move on with this, and then afterwards or sometime in the afternoon we can pick up the discussion in regards to the clerk. CHAIRMAN FIALA: That sounds like a time saver to me. Commissioner Coyle? COMMISSIONER COYLE: Yeah, I -- I don't know of any way we can hear this all at one time without a break. So, you know, we may as well go after it. Now, I will say that there is absolutely -- in my mind, there is absolutely nothing about this that anybody can talk for an hour on. It's a very, very simple issue. So if people want to talk for an hour, they can talk for an hour, I guess, but that means this whole process is going to be fragmented in little bits throughout the day. So I guess we need to get on with it. I think we need to complete it, it's been postponed so many times. We need to get this thing out of the way today. COMMISSIONER HALAS: Yep. CHAIRMAN FIALA: Okay. We shall move forward, sir. Thank you, Commissioner Henning, for your suggestion. MR. LEWIS: Good morning, Commissioners. Commissioner Coyle, I'll do my best. I understand what you're saying, and we were put on notice that we had an hour to present, and we'll try to be very concise where we can. But we want to make sure that you have the Page 74 February 24, 2009 full light. My name is Doug Lewis, for the record. I'm a partner with the law firm of Roetzel & Andress, and I'm also a registered lobbyist. I'm here today representing Tamiami Square of Naples, LLC, on this appeal item. I'm also here with Jack Crifasi, Jr., who's the president of Crifasi Enterprises, the manager of Tamiami Square. I'm also here with Mr. Gerald Hartman. He's a licensed Florida professional engineer with GAl Consulting, Inc., and they're out of Orlando, Florida. Mr. Hartman obtained his bachelor's degree from Duke University in 1975, his master's from Duke in 1976. He's highly qualified in environmental engineering with special expertise in utility management, facility planning, rate charges, and impact fee studies. Mr. Hartman is a qualified expert witness in the areas of water supply and treatment, wastewater treatment and affluent disposal, rate making service areas, utility system appraisals, and utility creation. He has over 30 years of experience and practice in Florida on impact fee matters and is accepted in civil court mediation as an expert on testimony for such impact fee cases. Mr. Hartman personally appeared -- prepared and certified the alternative impact fee study calculation that was denied by public utilities. Mr. Hartman's complete resume is found in Attachment I to the alternative impact fee study calculation. As an introductory note and in order to establish the record for my client in this quasijudicial proceeding, I would like to confirm that the following documents are in the record and it's part of your board packet for this appeal and that they are now incorporated by reference into the hearing and testimony that's being provided today. The first document is a letter dated August 1, 2008, by Jennifer Belpedio, now Jennifer White, County Attorney's Office, delivering the alternative impact fee study calculation, the alternative impact fee study calculation prepared by and certified by Mr. Hartman, and that's Page 75 February 24, 2009 dated July 23, 2008. That's really the meat of the study that our client did and was really forced to do in order to examine the amount of ERCs that were due the county. There's also a letter dated August 29, 2008, from Mr. Tom Wides of public utilities, and in that letter there are Exhibits 1 through 3 and a letter from public Resource Management Group. In addition, there's an appeal that we filed and there's a letter that we did as well, and it was an appeal of the letter that Mr. Wides wrote, and it was dated August 29, 2008, where we denied the alternative impact fee calculation. With that, there was also memorandum in support of the appeal that we delivered on January 17, 2009, and in that there were Exhibits A through E attached. We also filed a second memorandum in support of the appeal on February 13, 2009, with Exhibits A through E, and these were done to address certain statements that were prepared in your executive summaries and other items that appeared after our initial appeal. Many of these items that we address in these documents are very legal in nature. We understand that, and I wanted to make sure they're in the record. Today I will focus, given our time constraints, on the big-picture items before the board. And I'd ask that while I do that, this initial part at least, if you could hold any questions until after my introductory remarks. Commissioners, I'd like to start by saying that at a very significant legal expense and cost to my client, our client has worked very hard to amicably resolve this appeal with public utilities, and I can tell you that we do not enjoy bringing this item before the board today. We are working very diligently not to do that; however, our client wants to make sure that he's treated fairly in this process, and water and sewer impact fees charged by public utilities must be fair and reasonably related to the demand created by this development. We're not here today to talk about, you know, the dollar amount Page 76 February 24, 2009 that we charge per ERC. We're talking about this project and how ERCs are being assigned to this project. Unlike many alternative impact fee disputes that you may have had come before you or this board before where development has not occurred -- and that's typically how it arises, where development has not occurred -- and disputes involve what estimated future flows might look like or not look like. Tamiami has over 24 months of historical data to support its historical -- or to support its alternative fee calculation. Based on what we will present to you today, our expert's opinion is that public utilities' calculation of the water and sewer ERCs for this project is excessive and does not meet the rational nexus test that our impact fees need to meet for projects. By way of introductory background, I thought I would address the following initial question which you may have, why are we here? Why are we here? Well, we didn't want to be here, but we're here today. And like any -- many other alternative calculation appeals you may have heard, we have a dispute with staff over ERC calculations. That's clear. We do have a dispute. Unlike other petitions you may have had before you, however, property owners in those cases where they have to go through a process -- they have to go through this process before development can occur, our project is developed. And we have from today's -- from today, where we are today, we have almost five-and-a-halfyears from the first time that our client filed its first building application for development known as Building 300. That's significant. It's five-and-a-halfyears later, and we're here today talking about impact fees that were not collected by staff. Again, we're not here to challenge the amount. We appreciate the difficult work that staff does and the county does to provide water and sewer. We need to have a water and sewer. We understand that, and Page 77 February 24, 2009 we need to have the impact fees. We understand that. We're here today to talk about how specifically they're arriving at the calculations for our project. Tamiami filed an application for its initial building permit on September 26, 2003. This date was 16 days after the county substantially changed its impact fees pursuant to resolution 2003-300. I'd like to put on the visualizer a copy of this resolution and enter it into the record as Exhibit 1. Under resolution 2003-300, impact fees are charged based on estimated water and sewer flows. Estimated flows of 350 gallons per day were charged at one ERC, and $2,500 per ERC. Estimated sewer flows of250 gallons per day were charged at one ERC at $2,950 per ERC. And for a 3-inch meter that has an ERC range of eight ERCs on the low end to 54.9 ERCs at the maximum end, you would have an ERC range in that ballpark. Today we don't have a flow range for ERCs. It's just -- there's no flow range tied to a meter. Prior to resolution 2003-300, water impact fees were fixed, that's important. And they were based on meter size. The methodology did not look at flow range within a particular meter size. So, for example -- and this is kind of the illustration. I think it's helpful to see this. On September 9, 2003, total water and sewer impact fees due on a 3-inch meter were $88,000, about. One day later, September 10th, under this resolution, September 10, 2003, the amount of water/sewer impact fees due on a 3-inch meter generating estimated flows of 54.9 ERCs was $300,000. It's a 343 percent impact fee increase for that project if it generates those kinds of flows. Resolution 2003-300 states that staff reviewed -- and I want to put that up on the visualizer -- it's part of the back page -- reviewed over 25 building permits, and the results showed that the application of this new methodology had no negative impact on revenues. What resolution 2003-300 does not say is whether this methodology has a positive impact on revenues. Page 78 February 24, 2009 On October 16, 2003, Tamiami paid public utilities the full amount that was charged for Building 300 based on staffs calculation of ERCs that were due at that time. The amount paid by Tamiami was 19,275 for water, and 22,125 for sewer. Now, we both agree that they underpaid. We're not disputing that, okay, but that's the amount. I think it's helpful to say that's what they were charged and that's what they paid. Over the next four-year period, as future building permits came in for tenant build-out within Building 300, and as Building 300 expanded, an additional ten units, staff repeatedly failed to charge or collect additional impact fees based on resolution 2003-300. Now, that's staffs end. Our client, obviously, didn't pay additional fees. So here we are, you know, five-and-a-halfyears later trying to sort through this. I can list for you all the different tenants going from October 19, 2004; November 4,2004; January 31, 2005; February 15,2005; July 18th, there's awhole series of permits all the way up until June 13th where Harvest Moon came in to do a permit for its build-out. In all of these permit applications, no one was charged, which is consistent with the meter -- the meter approach, which is, you pay one fee for a 3-inch meter. More than four years after the time that Tamiami paid the county in full the amount of water and sewer ERCs originally invoiced by the county, staff contacted Tamiami -- and we're talking four-and-a-half years a little over four years after that date -- and they demanded an additional payment of 46,920. Now, that's not the amount we're talking about today, but that was the initial calculation that we got from staff. This initial calculation was based on the difference between the amount charged and paid by Tamiami on October 16th and the amount of impact fees due under resolution 90 -- 2003-93 using a flat fee based on meter size. Page 79 February 24, 2009 Shortly thereafter -- this is in February, 2008 -- staff recalculated water and sewer impact fees and demanded an additional $288,000. Now, put yourself in a development's position. Four-and-a-halfyears after, banks are gone, some of the tenants are gone, staff comes in and asks for $288,000. Now, we are not disputing that additional monies are owed, okay? What we are trying to say is we need to figure out how much they are and why are we here today. Tamiami disputed this calculation. My laptop went off. Tamiami disputed this calculation -- if you can get someone to help with that -- and we're here today. We entered into an agreement to hire a consultant to evaluate how the county arrived at this number and how many ERCs are owed the county; that's why we're here today. At this point I'd like to walk through with you the power point presentation. I've got a visualizer, and at this point as we go through, if you have any questions, feel free to ask. This is kind of a -- really an aerial of the site. And I did want to point out a couple things because I think you'll see it. First of all, there is a significant conservation area. It's about an acre and a half of wetland native preserve area, and we're required by South Florida Water Management to irrigate that area per district permits. So when we start talking in a minute about where this water is going, think about irrigation and think about Building 300, because staff is going to tell you that we're using X amount of gallons for Unit 300, which is this, and you can see it on the arrows; these red arrows depict building. We're going to -- we're going to show you that the water isn't all going there, that the water is going to irrigate to comply with requirements that the state and the county have imposed on the development, and they're doing that. There are different impact fee charges for irrigation water, and there's different charges for other uses, and we're going to talk about Page 80 February 24, 2009 that as well. By way of background, what is an ERC? Well, one water ERC is equal to 350 gallons per day based on annual average daily flow, water being provided to the site includes Building 300 water and irrigation water. So when we think about water that's going there it's not all going to the building, and we're going to show that. There's water going to irrigate and there's water going to the site. One sewer ERC back in 2003 was equal to 250 gallons per day based on annual average daily flow. Currently and based on ordinance 2007-57 effective January 1,2008, the sewer ERC is equal to 350 gallons per day. That's important. Now, it appears from your ordinance that it's at 350 gallons per day versus the 250 gallons per day. Now, public utilities, what are they saying? Where are we here and how do they get to their amount that's owed? Well, they're getting there by looking at sewer and looking at water. Well, first of all, they really don't specifically talk about sewer. There's no methodology that they've been -- they've provide to me that I can see or that my consultant has seen that supports 32 sewer ERCs on their perspective. They came in at 55 point -- 55.9. Historical flows do not support 32 sewer ERCs for Building 300. We supported 27 ERCs for Building 300, and we'll get to that shortly. With respect to the water is calculation at 55.9, that's one ERC for the 3-and-a-quarter-inch meter, and 54.9 ERCs for the 3-inch meter. Public utilities methodology has a 32.8 -- and we're going to show you today through our consultant, there's a 32.8 variance between what they're asking you to charge us today and what we think, when you look at annual average daily flows for the last 12 months, what we're actually using. We're not talking estimated, and that's what's unique about this project. You have a real opportunity, Commissioners, to see in a real-life project what people in the community are being charged with Page 81 February 24, 2009 respect to -- not amount of ERC, but in terms of the actual ERCs and looking at reconciling that with historical flows. When historical -- the historical data that they're going to show you -- and they're going to come up and show you historical data. We have the data, and we all -- the data is what it is, and we accept that. But that data includes both irrigation and Building 300 flows, and I want you to understand that and remember that. When irrigation flows are removed from this historical data, Building 300 -- for Building 300, when you take out the irrigation and you look solely at water that's going to that building, that we're using in that building, their methodology, when you compare apples to apples, has 128 percent variance between what they're asking for in their charge and what the historical data supports. Let's start with sewer historical data. The first thing is that in our report and our methodology, we provided historical data, and that was the alternative fee calculation methodology, and it's in the letter dated July 23, 2008, by Gerald Hartman. In that we show 4,450 -- 56 gallons per day for a 2007 year at a level of service at 250. Now, now it's 350, which would actually lower that ERCs number from 18 down to about 18 down to about 12, but at the time it was -- it was a level of service of 250. But at that gallons per day, we're at 18 ERCs, 18 ERCs. Now, that's not disputed. I have seen no historical data. My consultant today will be happy to talk to you about how we arrived at the sewer data. It hasn't been challenged by staff. We were invited by Attorney Klatzkow to bring it in. We laid it out and said, here's the data. We're telling you, here's what we're generating on sewer. That's important, because what we're going to show you is, when water comes through that meter, some of it goes to irrigate, some of it goes into the center, and it has to come out through a pressurized gravity sewer system. Well, this number can tell you a lot about how much water we're Page 82 February 24, 2009 using in that center. But remember that number of 4,456 gallons per day historical data. Public utilities calculation of water -- now we're going to turn to water. They're looking at -- at the peak four months. If you look at a 24-month window of data for this site, the very -- starting from the last month in February going all the way back 24 months and you pick out -- you cherry-pick the four largest consecutive months, that's the number staffs using to support their conclusion of 55.9 (sic), this number of 54.9. And there's really only four months when you exclude a month where we had a substantial leak that's documented in the report. Now, when you contrast that with the past four months of use of the site -- and, again, this is for Building 300 use and irrigation, both for the building and to irrigate, 33.9 the last four months. This is January. This is in season. This is also a time where we don't have a lot of rain. Annual average daily flows last 12 months, 42.1, 42.1. That's what -- that's what the data, historical data -- again, this is unique in that we're not -- we're not arguing about what we think in the future will happen. We're looking at actual -- actual numbers that have not been disputed. Annual average daily flows over the last two years. When you look at the historical record for two years, 39.4 percent. Now, think about that when you think about the standard that we're going to -- we're going to have to examine in terms of whether or not these fees are fair and how that 54.9 is generated. And, again, this excludes water that's being -- to be used for irrigation, purely looking at historical flows. The next slide we have is a comparison of the four peak months versus annual average daily flows. And when we met with utility staff, we kept hearing the mantra, it's peak. We built plants to peak. It's peak, peak, peak, peak, peak. Page 83 February 24, 2009 Well, this is a comparison that shows you when you look at the peak four months to annual average daily flows, when you take their calculation of 55.9 and you compare it to historical data at 42.1 ERCs for the last 12-month cycle, there's a 32.8 percent variance in what staff is asking you to impose on this development. When you look at the last 24-month period at a 39.4 ERC count, there's a 41 percent variance in what they're asking to charge for ERCs and what's actually occurring on the site. Now, at this point -- and I want to point out in our memorandum in support of our appeal, there's Exhibit C and E. Exhibit C kind of shows the historical data that I'm talking about. We actually went in month by month and showed you, here are -- based on the water bill that we're paying, here are the numbers. And then we gave you Exhibit E and we said, in your consolidated impact fee ordinance that you did in 2006, you look at annual -- annual average daily flows. You do not look at peak. And we're sitting here, and we've been asking staff, why are you looking at peak? Where are we not -- why are we not talking about annual averages? Here are the annual averages. Why can't we agree on this number? Now, I'm going to ask Mr. Hartman to walk through with you in your ordinance why -- in your consolidated impact fee ordinance, why it is that we look at annual averages and we're not looking at peak and how peak is already built into the price of the ERC. MR. HARTMAN: Thank you, Doug. This is page -- this is Page 18 and shows the footnotes. The same thing -- maybe you can't see that. It's the same thing for both water and wastewater other than the 350 versus 250. Clearly stated that the impact fee study is based on annual average daily flow. It's Exhibit E to the filings. It's repeated throughout the county documents in your ordinances. It's also in your resolutions. COMMISSIONER HENNING: Can we zoom in on that. I mean, Page 84 February 24, 2009 I can't -- MR. MUDD: Commissioner, what I -- have you used this already while I was gone for a second? MR. LEWIS: No. MR. MUDD: Okay. COMMISSIONER HENNING: You can see it? Can you see it? CHAIRMAN FIALA: I can't. No, I can't. MR. HARTMAN: Well, while that's being done, the situation is very simple. It is in your studies. It's the basis of your calculations. It shows up in every table. It shows up in every discounting of capacity, and impact fees are generally set on annual average daily flow. That is different than peak. Two totally different numbers. How you can see -- I can go ad nauseam on this, but we have multiple indications of it. Here's one right there on Table II, how your actual impact fee was calculated. They plan capacity, sure. It's signed for the peak, but it's discounted, that very second line, to average annual daily flow. So the flow applied to your impact fee is annual average daily flow, not the 40. It's a lower number. To give you another feel for this -- it's true for water and wastewater -- the peaking factors are shown in the reports, in all your technical data backing it up. This is not just pRMG, not just Greeley and Hanson, not just every one of your consultants in their actual technical reports. They discount and they show the actual peaking factor to average annual daily flow and then discount the capacity and then divide that capacity into the number. When you do that, you're calculating annual average daily flow. There's nothing wrong with that. In fact, that's the right way to do it. It's just that the staff, while being told by the engineers we design for -- and remember what you design for and how you apply capacity are two different things. You may design for a regulatory requirement, but then you convert that requirement to the effective capacity you can sell. It's that Page 85 February 24, 2009 effective capacity you sell on annual average daily flow basis that your charge is based upon, because not every facility has the same peaking factor. Your pipelines have a four-and-a-half peaking factor. Your storage facilities have tremendous peaking factors in those for different emergency conditions. Your high-service pumps have different peaking factors, your treatment plants have different peaking factors, et cetera. So what is used in the analysis is to bring everything to an average annual daily flow, and that's commonly done. That's the typical practice, if you look at the manuals of practice, and that's how it's done. So the staff is a little confused. Yes, you design to the peaks; yes, you want to make sure your plant works; yes, you want to make sure your plan meets the regulatory conditions; but no, the capacity is being sold on an annual average daily flow basis. If you sell capacity on a peak basis, when you calculate the values, the unit values on an average basis, you're overcharging, and that's the difference. MR. LEWIS: Thank you, Jerry. At the conclusion with that thought, when you look at the historical data and you look at the annual daily average from the last 12 months, you're at 42.1. And so that's what we're asking for you to think about what you think about staffs numbers. Now, the second thing I'd like to discuss here is I'd like to kind of think about, how did staff derive at 55.9? How did that number come about? Where did we get there? And I asked that question of staff, and I'd like to enter this as Exhibit 3, and I'd like to read to you the response, but I have reviewed your ordinance, and I reviewed your ordinance that was amended as recently as 2007 that described specifically how is it -- how is it that we look -- how do we get projected flows, because now we're talking about developments in the typical sense that haven't got a permit and Page 86 February 24, 2009 they're not operating so we don't have actual flows. How do we look at projected flows? And here's the answer that I got. The information we use for the Florida Plumbing Code calculation, and your ordinance, your current ordinance -- this was done as recently as 2007 -- says it's the greater of the Florida Plumbing Code or the Florida Administrative Code, but it talks about in this response, that we use the Florida Plumbing Code calculation, and there's various tables in that. There's not a simple reference point, so it's difficult for people to figure out when you look at your ordinance. And, you know, I'm a lawyer and I had a hard time figuring, okay, well, what does this mean? I mean, how do you -- how do you mechanically -- when I go in and try to calculate flows, how do I get there? Now, with respect to -- and you have to understand, the plumbing code is a fixture base. It's based on, not how much volume or how long the volume's going in. It's looking at fixtures. You know, how many sinks do you have in there? How many toilets? It's a fixture base. With respect to the reference in 2007, this is your -- this is your ordinance 2007-52 for Florida -- Florida Administrative Code, it's a general reference and does not provide a specific reference. It's common practice we use the sewage flows referenced in Florida Administrative Code 64E.6.008. And if you can put up the next part of that exhibit. I want to put up for you so you can see. This is where you actually get into projected flows based on the kind of use. You know, is it a restaurant, is it a -- and so this is the ordinance, and I want you to look at what they're looking at. First of all, you'll notice -- and I want you to see the site again. I don't know if you can see it on the visualizer. It's again, Florida Administrative Code, 64E.6.008, Florida Administrative Code. Page 87 February 24, 2009 Now, I've highlighted here -- these standards are, number one, for on-site -- on-site sewage, okay? That's the first thing. Our development, we're not on-site sewage. We have, you know, central system, gravity system, and also, these guidelines are guidelines, if look at Table I, for system design. So when we start talking about how they got to 55.9, they're applying these ratios, and I want you to see the next page, shows the actual -- for example, we have some restaurants. Their formula that they're using for a -- a restaurant operating 16 hours or less per day or per seat, 40 gallons per day is their standard. We need to think about where they're getting these standards. Now, I can tell you as a lawyer, when a client comes in my office and says, these fees are completely out of whack with the flows or what's going -- they're excessive. What's the remedy? They have to file an appeal. They first of all have got to pay -- they've got to pay the full amount that staff says that's owed based on these numbers for that restaurant. They've got to pay the full freight, which we've shown you is 42.1 percent overstated. They've got to go out and hire a consultant -- and just so you're -- Commissioner Halas, I saw your head go up. When I said that they're overstated, when you look at the historical data, when you look at -- this is the chart I have up here right now, if you can flip over to the laptop. How do we do that? MR. HARTMAN: Can we flip over to the lap top? MR. MUDD: Sure, hang on. MR. LEWIS: That chart I showed you, when you look at annual average daily flows -- I mean, these aren't disputable. These are annual numbers -- 42.1 ERCs based actual -- actual flows. That number, it's actually 32.8 percent overstated, I apologize, and it's 41.9 overstated when you look at the last 24-month period. So if we can flip back. So for this res- -- this person that's going in for a restaurant, they're calculating on 40 gallons. Now, I'm going to have Mr. Hartman explain to you why estimated flows for design Page 88 February 24, 2009 purposes do not equate to flows in operation and actual use. MR. HARTMAN: All right. Thank you, again. I think I talked before how you have a design parameter, you have safety factors. This is for septic tanks being applied to your regional sewage system. Septic tanks are small systems with high peaking factors, okay. And on-site sewage system that your staff is applying these standards to is a septic tank standard. Why is it a higher gallonage per seat? I can tell you why. There's no storage in the system. There's no dispersivity of demand. That means, when that flow hits that -- comes to the septic tank from that unit, it's got to take all the different peaks, okay. But in a central sewage system, you have a gravity collection system that takes peak dampening, your lift station has storage, which has peak dampening, and then your system has dispersivity of flow.' That means multiple users going into the flow system. That's why central systems do not reference that code. That's inappropriate. MR. LEWIS: With respect to the issue of water ERCs, I think it's helpful to understand that, again, we need to think about how staff is getting to the 55.9. And the standards, the flow standards, the estimated flow standards that they're using, they're clearly wrong. And it's supported by the annual daily average for the last 12 months that show a completely different flow. And so the general public, our client, has to hire a consultant, get into the numbers, and try to refute what staff is telling them the projected flows look like. Now we know. We have the flows. So I think that's very helpful. Now, we've talked about the issue of annual daily average versus peak four months, which, again, they've cherry-picked the biggest water months. And we have -- you know there's fluctuation in irrigation. There's fluctuation in use, depending on season. We know that. The standard's annual daily average daily flows. Now, I want to talk now about the concept ofwhere's the water Page 89 February 24, 2009 going? If you think about -- there's a 3-inch meter and a five-eighths meter on the site, and there's no irrigation meter on the site. Where's that water going? The next slide indicates that historical flows that they're going to show you include both irrigation water and Building 300 water. As part of our calculation, we have requested -- and we requested in our letter when we did this, we said, let's look at how we can get to a solution here -- we requested an irrigation meter and we said, we'd like to put an irrigation meter in the proj ect. I don't know why in Collier County, when you see a site plan that has irrigation plans and you know what kind of sprinkler heads are going in there, the type of equipment, where they're located, how many zones, why don't we allow -- why don't we just put in an irrigation meter? Let them pay the tapping fee. I don't understand that. Well, I have some reasons why I think that occurs. But I don't -- I really don't understand that. As part of this calculation, we requested that. Now, we have a letter, and I'd like to put up as Exhibit 4 -- we have a letter from staff confirming that the ERCs assigned to irrigation, and this is -- by the way, this is included in my supplemental memorandum, the second supplemental memorandum, and it's already part of your record, but I'd like to just make sure we get it. But it's an exhibit to my supplemental memorandum. That letter indicates that there's 6.1 ERCs that are attributable to irrigation, and that's because currently we treat irrigation flows differently in terms of calculating the ERCs than we do uses within a development; restaurants, offices. We don't have any disagreement with that amount. We accept that amount. We're willing to do that. It will save us on our water bill, which, by the way, when we get the monthly water bill, we're charged for irrigation on the sewer side, for the water/sewer bill, we're paying for that. So we want to do that, and there's no disagreement with staff. Page 90 February 24, 2009 As part of this, we want to -- we want to have an irrigation meter on site and we want to pay the 6.1 ERCs. Yeah, if we can go back to the laptop. The peak four-month average that they've used is 591 -- 591,000 gallons per month, and these numbers include both irrigation and Building 300 water. Historical flows attributable to irrigation should be excluded from historical data used to support Building 300 ERCs. As such, historical data used by public utilities would need to support 49.8 ERCs for Building 300, and I -- I have a chart that shows you how that works. When you look at the 6.1 ERCs that we all agree on that should be charged -- and that's really at the high end. I mean, if you look at the way it's calculated based on the plumbing code, we're at the very high end ofERCs that you can charge on a 2-inch meter. It doesn't go any higher. 6.1 is about the highest you can charge. And again, we have an acre and a half of preserve area. So when you back that 6.1 out from irrigation, what you're left with is 49.8 ERCs for water that's going into Building 300. So they have to demonstrate by historical flows that we're using water in Building 300 that equates to 49.8 ERCs. We're going to show you, based on the historical data, that we're using about 21.8 when you look at annual daily average for Building 300 ERCs. And there's a slide here that's very telling. This slide breaks down irrigation flows from -- when you look at historical data, and then water flows for Building 300. In 2007, sewer flows were approximately 136 gallons per month, which equates to approximately 159 gallons per month for water. Now, I'm going to ask Mr. Hartman at this point to explain to you how we can derive, when you have water going out through the meter, into the proj ect, coming back through the sewer, how is -- when we know those sewer numbers, how is it we can derive the approximate flow for the center? MR. HARTMAN: For nonmanufacturing, nonindustrial uses, this Page 91 February 24, 2009 does not apply to those uses, but for general commercial and restaurant use, there is a factor of approximately 17 percent or 20 percent. Right in that range is the manual practice for -- to differentiate the amount of flow in the building that may be lost and not coming back through the sewer system. Around the trade, many people see 85 percent to 80 percent, numbers like that, and how you gross up sewer flows for usage flows. There's nowhere else for it to go in this type of building. It has to go back down the drain. You gross it up, if you will, by that percentage, and it's not that big of a percentage, so, therefore, it does not induce very much air. MR. LEWIS: So in terms of the analysis, what we've done is we've said, look, in 2007 the water flows are clear, 375,000 gallons. That's not -- there's no dispute between staff and applicant. That's the flow that occurred per month on average in 2007. We took that number and we deducted the estimated irrigation flows, and we ended up with the percentage of irrigation flows and flows that are going to -- for the building. And you can see here in 2007, when you reduce the flows -- when you take the 375, take out the 159, which is -- which is used by the building, you're left with irrigation flows of about 216,000 gallons, the sum of 159 and 216 is 375. That's the water. And so that's very helpful. And so when you compare the 49.8 ERCs that they're ascribing to what we're using actually in the building, we're really at 21.8 ERCs. And the way we get there is we look at annual average daily flows for the last 12 months, which is 448 gallons per month, we reduce from that irrigation flows of 216 gallons per month in thousands, and then we're left with the flows for the building, which are about 232 gallons per month for 21.8 ERCs. Now, when you look at those numbers and you compare apples to apples, water going into Unit 300 and the ERCs that are being assessed for that, the deviation is 128 percent between what they're Page 92 February 24, 2009 charging for ERCs for Unit 300 and what's actually occurring on an historical data side. That's significant. It's extremely significant. Our calculation on irrigation, there's no disagreement. We agree with staff. With respect to irrigation, per your ordinance, per your code, it's 6.1 ERCs. We're okay with that. We'd like to, as part of this, install an irrigation meter, separate out the systems, and then, you know, have an opportunity to look at the flows. Our consultant's telling you it's going to be 27 ERCs based on his unit county methodology, 27 ERCs total. On the sewer side, we have historical data that shows 18 ERCs. There are 27 units in that building. There's a nine ERC differential. In other words, we've offered nine ERCs more than historical data shows. That's to account for vacancies during the study period, 18 ERCs. That's what the data shows. And we're prepared to pay 27 based on the unit count method to account for the vacancies during the study period. On the water side, we've calculated 27, 27 units based on the unit count. Historical data, as I showed you, when you look at apples to apples, unit -- water going into Unit 300 and historical data for that, 21.8 ERCs. There's a variance of5.2 ERCs. It's higher. We're offering more than there. We're doing that because of the vacancies. And essentially, I think that's really our summary of what we're offering and where we are and how we've dealt with staff. I did want to remind the board that when you look at their numbers, on the water side, there's a32.8 variance when you look at the annual average daily flows. On the -- on the irrigation, when you separate out irrigation, that's 128 percent variance. I think it's fairly significant. Again, we have tried very diligently to try to get this resolved. It's been very time-consuming and expensive. You can put yourself in my client's position, you know, four years after the initial permit, now it's five-and-a-half years later, we're in this dispute with the county. Page 93 February 24, 2009 This is a very difficult economic climate. We'd like to get a deferral on any fees. We agreed that there's going to be some monies that are owed. We're willing to pay the impact fees that are due on 27 water and sewer ERCs. We've paid for 21.8. We'll pay the different. We'll put an irrigation meter in, we'll get that irrigation meter separated, we'll pay the fees for that. We understand that there's moneys that are owed and we want to pay those and we appreciate the work the county does to provide quality water and sewer to its citizens. Appreciate your time. If you have any questions, we're happy to take those. CHAIRMAN FIALA: You did a fine job, Mr. Lewis. Look at that. You've got that in 45 minutes, and we're ready for lunch. Did you want to ask a question before we leave, Commissioner Henning? COMMISSIONER HENNING: I can -- I can wait, but yeah, I do have questions. CHAIRMAN FIALA: If they're not involved, go ahead. COMMISSIONER HENNING: Well, I don't know if they are or not, but we can also -- you can stop me and we can continue. CHAIRMAN FIALA: Well, usually I like to ask questions at the end, as you all know, you know, just write your questions down, and then we all ask them at that time. COMMISSIONER HENNING: We have to build to capacity. MR. LEWIS: Correct. COMMISSIONER HENNING: We have to build to peak capacity because our seasonal -- we are seasonable. MR. LEWIS: No disagreement. COMMISSIONER HENNING: And we have to charge for that peak capacity. And I don't know why you're disputing charging for those months of the peak time. MR. HARTMAN: Let me help you there. You already are. You're already charging for the peak capacity because you've taken Page 94 February 24, 2009 the peak, the design peak, which is a peak that you do not hit, it's a design peak that is never reached, hopefully, or you're under moratorium. It's a design peak. And then what you've done already is taken that peak and converted it to average annual daily flow. So you are -- that factor is in the $3,515 impact fee. That's already in there. You're paying for the peak. COMMISSIONER HENNING: Show it to me. How did they calculate it? When we went -- I know we were doing meter charge or per meter size charge, and now we're going to this new methodology, ERCs for building. MR. LEWIS: On the cost side, you have a total cost for the system. That's the cost side, okay. Now the question, how do you allocate the cost to the actual use? COMMISSIONER HENNING: Right. MR. LEWIS: How do you marry it? On the use side, they look at capacity and they discount that and they say, okay, we may have -- we have 40 -- what's the term, 40 -- it's a big number, 40-something, in terms of the amount, and they discounted it. They said, we're not going to -- we're going to only allow 30 on the adjusted. COMMISSIONER HENNING: Thirty what? What's 30? MR. LEWIS: What's the term? MR. HARTMAN: It's millions of gallons per day. It's your total treatment plant capacity. Let's look at Table II. You can see it. The cost numbers are not -- COMMISSIONER HENNING: Use your microphone so I can hear you. MR. HARTMAN: I'm sorry. The peak capacities up on the very top, the first line, it is then adjusted to an annual average daily flow. The cost numbers are for the peak capacity. So when you divide into the peak capacity cost numbers your average annual daily flow, the peak factor's already in your impact Page 95 February 24, 2009 fee. COMMISSIONER HENNING: Okay. How does it -- maybe staff could answer the question if you can't. How does that -- how do you break it down to each ERC? MR. HARTMAN : Well then you take your level of service, which is an average annual daily flow basis, and you divide -- let's say you have 35 million gallons per day, and you would divide that by 350 gallons per day per unit, okay, and that division goes into the 30, not to the 40. So your number ofERCs that you're selling is on an annual average daily flow basis. COMMISSIONER HENNING: Okay. MR. HARTMAN: If it was 3,500 gallons, to make the math easy, and 350 LOS, you'd be selling ten ERCs. CHAIRMAN FIALA: Did you get your answer? COMMISSIONER HENNING: Yeah. I have that answer. I do have some more notes down here. That did answer that question. CHAIRMAN FIALA: Okay, fine, thank you. We will all take a one-hour lunch break. When we come back, I believe we continue on with this; is that correct? MR. MUDD: Nope. You have a one o'clock time-certain presentation from the Miami-Dade folks about the jetport and off-road vehicles. CHAIRMAN FIALA: Okay, fine. MR. MUDD: That shouldn't take but about 10,15 minutes. COMMISSIONER COLETTA: It's one minute after the hour. You going to give us that time? CHAIRMAN FIALA: Oh, Commissioner Coletta has requested an extra minute. And by the time we get up, it will be two, so we'll see you back here at 1 :02. COMMISSIONER COLETTA: Thank you. (A luncheon recess was had.) MR. MUDD: Ladies and gentlemen, if you'd please take your Page 96 February 24, 2009 seats. Madam Chair, Commissioners, you have a hot mike. Item #5C PRESENTATION BY LAMPL HERBERT CONSULTANTS, INC. ON BEHALF OF MIAMI-DADE AVIATION AND PARKS AND RECREATION ON THE TRAINING AND TRANSITION (TNT) AIRPORT LANDS FOR POTENTIAL OFF-HIGHWAY VEHICLE (OHV) USE - MOTION DIRECTING STAFF TO OPEN CYCLE FOR NEW APPLICATION (BY END OF APRIL) WITH THE STIPULATION TO MEET WITH SFWMD FOR DISCUSSION, WITH THE OPTION OF INCLUDING THE LAND IN HENDRY COUNTY IN A JOINT EFFORT WITH HENDRY AND LEE COUNTY AND IT NOT TO COST THE COUNTY ANY MONEY - APPROVED MR. MUDD: The next item on your agenda is a time-certain item for one p.m. This -- it's a presentation by Lampl Herbert Consultants, Inc., on behalf of the Miami-Dade Aviation Parks and Recreation on the training and transition, TNT, airport lands for potential off-highway vehicle use. State your name for the record. MR. HERNANDEZ: Good afternoon, Commissioners. My name is Pedro Hernandez. I'm the division director for Miami-Dade Aviation Department. And to my left -- to my right here is Dr. Herbert from Lampl and Herbert. I'm actually going to be doing the presentation, and Dr. Herbert is going to assist me with any technical questions that go right over my head. First of all, thank you for listening to us on this idea that we have. We've prepared a short presentation. I promise to be brief. But first of all, I'd like to say that Commissioner Peppy Diaz wanted to express Page 97 February 24, 2009 apologies for not being able to be here. His days in the Washington-- he's up in Washington with a series of commissioners on behalf of Dade County so -- otherwise, he would have been here to talk to you directly. So his apologies on that. First of all, this idea came to us through our parks department, and it talks about the necessity of addressing OHV s and A TV s out in the tri-county area, but basically right now between Dade and Collier Counties. And I'd like to go into -- we have -- we have a property which is -- we call it a transition and training airport. It's out -- it's the old jetport property that Dade County owns. It is partially -- or mostly in Collier County, and a portion of it is in Dade County. It is near the -- I don't know if you -- if it's better -- do you see this or you want me to point some other way? CHAIRMAN FIALA: We can see that. MR. HERNANDEZ: This is fine? Okay. So it is just north of U.S. 41 and right on the Dade/Collier boundary, all right. The airport basically has a 13,000- foot runway, and there were some borrow pits that were dug up in the '60s and '70s to build the runway, and those borrow pits can be seen here. These are shallow lakes at about 25 feet deep and with very sharp steep walls, and they've been there some time. They're surrounded by fill, and we will go through that. And this site was actually identified -- and we will go through there -- identified and a planning study done by the county, Dade County Parks Department. And in this area we can see all of the different options that we have available. We can build 20-plus miles of trails and highways for vehicles, especially A TV s. We can actually do camping grounds for veterans at this point in time on the -- and I'll go back -- veterans camp grounds in this area here. We can have A TV ers, we can have the parking spaces. The idea of why this property has been selected is basically Page 98 February 24, 2009 because we already have the sheet flow that comes -- the water's already being impacted by the runway and it's also isolated by U.S. 41. So this area here is already used currently by some of the legacy campers, the Everglade Mens (sic) and to the north. Where -- we basically are looking at taking this area and turning it into a park, and -- go back this way. Some of the lakes will be improved to do fishing. This fishing would be aided to -- to have ADA accessibility to the lake. We have some ideas for floating islands and improving the environment around each one of the lakes. We would flatten the slopes on the lakes so that it would not be vertical so we can get back the fauna and the flora around the lakes and we can have an ecological better impact. We have ideas of having an archery ranch in the area. There's not too many of those around,' and this would be a good idea. We want to try to restore the distressed lands and mitigate in the area that we're building, and especially the -- our commissioners are very much interested, and I believe your commissioners are too, to make this facility accessible to veterans. Not a lot of facilities for veterans for parks and camping sites for them. And we want to also incorporate safety and security within the A TV community that wants to be doing this. The need for the project spans from trespassers issues concerning the ATVs. The ATVs have been infringing on private property and in other park areas, and they've been impacting environmental lines as well as private lines with this type of -- their use. We have had -- we have had a lot of incidents in our county, and I believe there have been a lot of incidents in your county; and therefore, this is an area where they can be sent and directed to operate. We have a bill that is about 54,000 vehicles registered within a hundred miles of this park. You have about -- a population, you can Page 99 February 24, 2009 see there, about 6.5 million people within a hundred miles of this park. And this would provide a park where these people can actually go and do what they like to do in these areas without trying to reduce the impact on other more sensitive land. Why TNT? As I explained before, this was select- -- already this site was identified in 2007 in the planning study by the parks department. Other sites in Miami-Dade County were too close to the neighborhood, so we're infringing on other properties. The acquisition of property was through the roof, so we couldn't even begin to touch it. South Florida Water Management District, as you well know, have grown out of basically sites and lands that they can offer. The same thing applies to the Fish and Wildlife, the FPL, the National Park Service, and a lot of other entities out there just simply do not have the area to do this. You -- I know for a fact that Collier County has been searching for an OHV site, and they haven't been able to find one that is suitable and amenable to everybody, and the county -- the Collier County staff has also been interested in this site. It happens to be the park. The entirety of the park will be ow the Collier County side of our property, which is the most accessible site and will be the least amount of impact to the area. These pictures -- these four pictures show you three of the -- it's actually three of the borrow pits that were dug up. This is their current condition. As you can see, there are trails from buggies and users in the area. These are the areas that we would go in and try to excavate the side slopes and create shallow areas where birds and fish can populate, create the recreational area. These are areas that are already impacted so we're not im- -- we're not having a great impact into the environment surrounding it. And we have -- if you look into a couple of these, right here -- if you look here, there are trails that leave out this particular quarry lake and Page 100 February 24, 2009 go onto the following quarry lakes, and you can see those trails as they come in and out of the quarries that are being used somewhat in that manner. So we would be doing this. What is next? Next for us is, we're here presenting this idea to you, and we're considering whether we actually need an inter-county agreement to proceed within the two governments to work on this. We've been told that we need to amend the land use designation for TNT and to proceed with a Compo Plan to allow the project to go forward. And then we have been aware that the last weekend, or the last weekend of April is the last deadline for submitting your -- in your Compo Plan to submit the amendments in there, and there -- that's basically our presentation. And I'll open it up for whatever questions you have for Lampl and myself. CHAIRMAN FIALA: Commissioner Halas? COMMISSIONER HALAS: First off, how many acres are we talking here? MR. HERNANDEZ: Right now -- COMMISSIONER HALAS: Yes. MR. HERNANDEZ: -- we're talking -- COMMISSIONER HALAS: Total acreage. MR. HARTMAN: -- we have 2,500 acres-- COMMISSIONER HALAS: Okay. MR. HERNANDEZ: -- available for this. COMMISSIONER HALAS: Will this meet the criteria of the South Florida Water Management or any other governmental agencies as far as getting permitting to permit this land for this particular use? MR. HERNANDEZ: We have met -- we have met -- we have had meetings with -- by the way, we have had meetings with both the National Park and the Big Cypress. COMMISSIONER HALAS: And? Page 101 February 24, 2009 MR. HERNANDEZ: And we have met with the Army Corps, the Southwest Florida Water Management District, both the State and Federal Fish and Wildlife. COMMISSIONER HALAS: And? MR. HERNANDEZ: Their permitting process is, this is doable. It will require an EIS and it will require -- so far, we have not heard any of the agencies tell us it's doable. COMMISSIONER HALAS: Okay. MR. HERNANDEZ: They just have to follow the procedures. COMMISSIONER HALAS: Do the lakes -- since you're going to knock down the banks and everything, will that pose a problem of A TV s actually entering into the lakes unexpectedly? MR. HERNANDEZ: I'll let Dr. Lampl -- Dr. Herbert answer that one. DR. HERBERT: Commissioner, the situation is that the lake-- the side walls of the lake are vertical right now. If there's -- if there's an issue, the issue is now where the buggies and people are around it because it goes directly into 25 feet of water. The plan is, is to lay the slopes back, leave enough room around the perimeter, but come back with like a one-in-ten or one-in-12 slope and slope it down. This would create a larger, much larger -- doubling the littoral fringe around it. That would be wading bird habitat -- COMMISSIONER HALAS: Okay. DR. HERBERT: -- much better fishery habitat, and the oxygen regime in the pond -- or in the lakes would be much better for propagation of fish and wildlife. COMMISSIONER HALAS: Okay. My concern was with those borrow pits out there, being that it may be a problem with A TV s happening to get into those lakes and drowning. MR. HERNANDEZ: Yeah. I believe the slope will be shallowing off -- COMMISSIONER HALAS: Okay. Page 102 February 24, 2009 MR. HERNANDEZ: -- that they would be into the water and stop before they get to a 25-foot drop. COMMISSIONER HALAS: Okay. Thank you. CHAIRMAN FIALA: Commissioner Coyle? COMMISSIONER COYLE: Is there any interest in creating a shooting range out there, or is there any prohibition against it? MR. HERNANDEZ: The idea has been thrown around, has been thought of. It is not in this current plan. There's sufficient acreage out there to do that. But at this point in time, as -- it will be part of what we would present as an option in the CDMP plan that we will be asking for, but it's not something we're planning to do right now. I failed to mention that I have a representative from the Miami-Dade Parks Department to support me on this, too. Don't think it's only me. Behind me is a whole host of people. So if you have any questions about the park, Howard is assistant director from our parks department, and he would help me answer any other questions. COMMISSIONER COYLE: Could you show me on the slide, this slide, exactly which areas are going to be available for recreational opportunities and which areas would be retained for the use of the airstrip? Are you going to continue to use the airstrip for training purposes? MR. HERNANDEZ: Yes. Let me point out this to you. COMMISSIONER COYLE: Okay. MR. HERNANDEZ: Right now -- right now this yellow line you see here is an active -- is an existing fence line that surrounds the airport -- COMMISSIONER COYLE: Okay. MR. HERNANDEZ: -- property. That fence line will still be there, and that will be the airport itself. COMMISSIONER COYLE: Okay. MR. HERNANDEZ: Okay. This -- this whole area here would be Page 103 February 24, 2009 the area that will be used for the A TV ers and camping in this area. This particular lake -- lake is too close to the runway, so this would be the lake where we would create the park, where there will be the fishing and more passive-type recreation, okay. We haven't yet thought of where we would be putting the archery range that we talk about or any rifle range. This whole -- we own all this property. This is all happening just right here on the southernmost portion of this. So we still have all this acreage to the north, and we are going to retain the use of the airport. It is a very vital piece of property for the FAA and for the county in terms of aviation uses. COMMISSIONER COYLE: Tell me about the area north of the airport. How much of that area is -- is owned or used for airport functions and activities? MR. HERNANDEZ: The area to the north is not used for aviation. COMMISSIONER COYLE: But it's still owned or operated -- MR. HERNANDEZ: We own it. COMMISSIONER COYLE: You own it. MR. HERNANDEZ: We own the surface and we own a portion of the mineral rights. The area to the north right now is only being used by the Everglades -- Evergladesmens and legacy people who are -- have camps in the area, and they actively operate out of -- out of a club they have here, and they follow their own trails into the -- into our property to where they have hunting camps and station camps. COMMISSIONER COYLE: Okay. MR. HERNANDEZ: Some of those camps predate us buying the property and they go back to -- as long as their aerial photograph, we've been seeing camps out there. COMMISSIONER COYLE: So this particular slide shows the northern extent of your property, or does it extend even further? MR. HERNANDEZ: Which -- the one that's up, no. That one just concentrates on the southern portion of our property. Page 104 . February 24, 2009 COMMISSIONER COYLE: Oh, okay. So it extends quite a ways further north? MR. HERNANDEZ: Yeah. If you look at the first slide, the yellow line that you see there, that's our property, okay. What you're looking in the first slide, it would be only like this little square here. COMMISSIONER COYLE: Oh, really, okay. MR. HERNANDEZ: Only that area there. COMMISSIONER COYLE: Okay. Good, good. Thank you very much. CHAIRMAN FIALA: And Commissioner Henning? MR. HERNANDEZ: I'm sorry. The whole -- the whole area is about 37 -- this whole yellow square is about 37 square miles. COMMISSIONER HENNING: Who owns the land? MR. HERNANDEZ: Who owns the land? Dade County. Miami-Dade County Aviation Department owns the land. COMMISSIONER HENNING: Okay. And that is a -- that is an authority? MR. HERNANDEZ: It's a county department. COMMISSIONER HENNING: Okay. That is that -- referring to TNT land? MR. HERNANDEZ: When we refer to the TNT land, yes, we refer to the entire property. COMMISSIONER HENNING: Okay. And that's how it's titled? MR. HERNANDEZ: Well, the title -- the titleship is owned -- Port Authority? The original title is named in Port Authority, Miami-Dade Port Authority. COMMISSIONER HENNING: Port Authority? MR. HERNANDEZ: Because that was in the 1960s and '70s. Seems then the Port Authority was abolished and replaced by the Dade County Board of County Commissioners. COMMISSIONER HENNING: I see, okay. Now, out of the 2,500 acres, how much of that is in wetlands? Page 105 February 24, 2009 MR. HERNANDEZ: All of it, except for the runway and -- the 2,500 acres is in wetlands. COMMISSIONER HENNING: And you feel that the state and federal agencies would allow A TV use in wetlands? MR. HERNANDEZ: I believe so, Commissioner. The reason -- we have had discussions with the agencies, and your own commissioner has been at some of those -- some of those meetings. The reason they're contemplating this use is because the idea is that they will be removing the illegal impact that's taking place and other sensi- -- environmentally sensitive lands. And the idea is that these lands, these wetlands, are less valuable to them than the wetlands that are being impacted right now by the A TV ers in other areas. COMMISSIONER HENNING: And who's going to be doing that restoration of the wetlands? MR. HERNANDEZ: Outside of our property? COMMISSIONER HENNING: Yeah. What I'm hearing is there's impacts to wetlands somewhere on that piece of property that the agency would like to have restored. And correct me if I'm wrong, that will be your mitigation for the impacts of more heavier intensive recreational uses on the 2,500 acres. MR. HERNANDEZ: Let me -- let me go back a -- take a step back -- COMMISSIONER HENNING: Okay. MR. HERNANDEZ: -- and try to explain the concept. The concept comes from the idea that there are other lands, not this area here that we're talking about, other areas in Collier, Miami-Dade, and in Lee County. COMMISSIONER HENNING: Okay. MR. HERNANDEZ: That are being impacted, okay, by ATVers. The problem is there's no park where to direct these ATVers to and tell them, this is the park you're supposed to be off (sic). Get off these Page 106 February 24, 2009 other sensitive lands, included the Big Cypress, okay. So everybody's looking for a site where to direct these ATVers to. So the plan is that, if we would take this southern portion of the TNT property and sacrifice those wetlands in order to direct the A TV ers in that area in the spaces that are around the lakes, mitigate the lakes themselves, and create a situation where the A TV ers can be directed there, then there will be less incentive for them and enforcement can then begin to be applied to those who are trespassing on those more sensitive lands in your county, in our county, and in neighboring counties. COMMISSIONER HENNING: I understand that. MR. HERNANDEZ: Okay. COMMISSIONER HENNING: Do you have any written correspondence from the Corps of Engineers and South Florida Water Management, DEP, stating that impacting these wetlands in this 2,500 acres would be no cost? MR. HERNANDEZ: Okay. I don't have any written correspondence. The first -- we are at the very early stages. We have had maybe a few meetings with them, and we thought we'd -- the idea was to bring this to your commission here so that we can hear what the problems would be before we take the first step of applying for EIS as I'm moving forward in the Army Corps process to obtain the dredge field permits, and those would trigger the EIS, and that would trigger the valuation of everybody's comments. COMMISSIONER HENNING: Okay. Thank you very much. MR. HERNANDEZ: Thank you for your time. CHAIRMAN FIALA: Okay. Commissioner Coletta, and then we do have a speaker. COMMISSIONER COLETTA: Yeah. One of the things we do is you have to recognize a couple of facts. One, this is the initiative of Commissioner Peppy Diaz from Miami. He's the one that came up with this brain child, and nothing more than just initial discoveries Page 107 February 24, 2009 have been taken at this point in time to be able to gather enough information to be able to get this commission to be able to give the green light to proceed or not to proceed with it with the next phase. I was getting a little uncomfortable at the last meeting. It got pretty involved. We had representatives from Fish and Wildlife; from -- well, our own sheriff went, Kevin Rambosk; we had the sheriff from Miami-Dade; we had numerous other law enforcement offices. There was about 60-some people. It was quite impressive who showed up. It was at that point in time I realized this was taking on a life of its own, and I didn't think it should proceed until the commission had been totally briefed on it and could weigh in to which direction they'd like to see it go. I think it's got tremendous possibilities. What's been missing -- the element that's been missing at this point in time and was pointed out by Fish and Wildlife who seem to be somewhat supportive of the whole thing -- of course, they've been the key point that has brought these things to their knees several times in the past, these types of projects -- was the fact that we didn't have representation from the environmental groups. And we all agreed that we would -- before we held another meeting or -- we'd make sure that the invitation went out to all the environmental groups and also other user groups who weren't there at the last meeting we held; however, with that said, there is some involved on the part of our staff to get to this point. You've been briefly -- you've been briefed to some extent from Jim Mudd in the past about, this effort is underway and being looked at. But at this point in time, you need to know all the particulars that we know and to be able to give it the blessing to proceed to whatever the next step would be. And I'd like to have Barry come up and just share a little bit too from his perspective at parks and rec.,which would be helpful, too, in some of your decision making that will take place today~ MR. WILLIAMS: Commissioner, for the record, Barry Williams, Page 108 February 24, 2009 parks and rec. director. I don't know that I have a lot more to add. I just would say that, you know, we've been following this issue, certainly, in trying to find a location. And this is a unique property in the sense that it is mostly in Collier County. There's a question of the distance it takes for people to get to a site to ride. But, you know, anyplace that we select is going to have that issue. So it's certainly been something that we've had some interest in and have been working with the Miami-Dade Parks Department and Miami-Dade Aviation just to understand how this is going forward. So I agree with Commissioner Coletta. We're just looking to see whether this seems like a plausible idea for us to continue to pursue or not. So we wanted to work with the commissioner in getting the group here to give you this briefing. So with that, that's all I would add. COMMISSIONER COLETTA: Thank you. CHAIRMAN FIALA: Thank you. And we have one speaker. MS. FILSON: Yes, ma'am. Nancy Payton. MS. PAYTON: Thank you. Nancy Payton, representing the Florida Wildlife Federation. We don't have a position whether this is good or bad. We're in a learning mode and collecting information, but we certainly do have a lot of questions. And the first question is, how do we know the ORVers (sic), ATVers, whatever the correct term is, are really going to use this site? I don't see any in the audience today stepping forward. Maybe I'm wrong -- that this is something that should be pursued, so I think we have to establish that. If we're going to be sacrificing wetlands and wildlife habitat to supposedly save lands elsewhere, we have to know that it's going to work or some sort of indication that those that are causing the harm now will truly go and use this site. There are wetland issues, there are wildlife issues, there are transportation issues. I saw a slide that said that there are 54,000 of these vehiclese Page 109 February 24, 2009 within a hundred miles of this site. That potentially could put a lot of cars and trucks and other vehicles on 41. Can 41 safely handle that? And lastly, I was seeking confirmation that if this moves forward it does require a Comprehensive Plan amendment, and thought that process, we would find out a lot of -- more information about the impacts on it. And those are my comments, and thank you very much for allowing me to speak. CHAIRMAN FIALA: Yes, Barry? MR. WILLIAMS: Commissioner, if I'd just -- if I may add. And I appreciate Ms. Payton's comment about the Comprehensive Plan amendment. That is one of the items that we were seeking some direction today, whether or not with the current cycle, if this could be considered. And the time frame is such -- I know staff is working on a deadline of this April, but if it could be considered and that direction provided, that would be very helpful. CHAIRMAN FIALA: Okay. Commissioner Coletta? COMMISSIONER COLETTA: Barry, do you think there's a possibility we might get water management to step up to the plate and pay the cost for the comprehensive amendment and the staff cost? They're obligated to us bigtime on this one. MR. WILLIAMS: Commissioner, I'm not sure how to answer that. I know that there is a commitment to us. Certainly they could be approached with that. I don't believe Clarence is in the room today, but we could certainly approach them if you so desire. COMMISSIONER COLETTA: Okay. So what direction would you like this commission to go to reach the next step, and what level of involvement are we going to have at this point in time, or commitment? MR. WILLIAMS: I think at this point, you know, the direction for the Growth Management Plan amendment, getting into this current Page 110 February 24, 2009 cycle, I think as Ms. Payton indicates, a lot of the questions that need to be answered would be answered through that process. I would ask as well if we could get direction for parks and rec. staff to continue to work with Miami-Dade staff to -- as far as this will take us. The interlocal agreement -- or interlocal agreement, we could begin to work on that and craft that, that would be helpful as well, if there was a desire for an interlocal agreement between the two counties. So those three things in particular. COMMISSIONER COLETTA: Yeah. I'm in agreement. I'm not too sure -- CHAIRMAN FIALA: Sounds great. COMMISSIONER COLETTA: I don't think we can do a motion because we haven't advertised it as an action item, have we? COMMISSIONER COYLE: We can provide guidance to staff. MR. MUDD: Sure, you can give guidance to staff. Barry's looking for guidance for staff. If you want us to go forward -- if you want us to go forward with the Growth Management Plan amendment, we'll do so. We'll meet with the folks from the South Florida Water Management District and see if they can defray the cost of that particular plan amendment and get us moving in that particular regard. As far as the EIS is concerned, we're going to have to talk to the folks from Miami-Dade a little bit to figure out how they want to go with the EIS because the EIS is going to be a big portion in this process in order to get it approved or not and get your permits that you need so-- , CHAIRMAN FIALA: Commissioner Halas? COMMISSIONER HALAS: I just wanted to add a little to the conversation here. I recently talked with Clarence Tears about this. And Clarence felt that there was going to be some difficulties in getting this permitted. He said that he was also working on a large piece of land that was going to be in Hendry County just north, and he found some land there that might be more advantageous to something Page 111 February 24, 2009 of this nature, because he had concerns that it might be a problem getting all the necessary permits for this particular piece of property. So just -- that was the conversation I had with him. MR. MUDD: Yes, sir. And I understand the particular piece of property because I've seen the particular piece of property. Somebody came through Commissioner Coletta's office with some photos and whatnot, and I passed them over. Yesterday, as late as yesterday, Mr. Dunnuck and Mr. Ochs had conversations about that particular parcel. And what they want to know, and rightfully so, if they go out and purchase this piece of property for 3.5 or $4 million, will it satisfy the 640-acre agreement, and that's what they want to know. They're not interested in -- if you say, yes, they'll go out and buy it and then that's it. It's over. They're not going to -- they're not going to -- COMMISSIONER HALAS: Are you talking about the piece of property up in Hendry County? MR. MUDD: Yes, sir. You're going to have the same problem though in Hendry County because you're going to have to get -- you might have to get a GMP amendment in Hendry County in order to get that particular property to be used as an OR V park, plus you're going to have to go through the permitting with another county, too. So I don't believe any of these particular ideas, concepts, places, are going to go without having some issues with them. CHAIRMAN FIALA: What a wonderful thing to be discussing. Before we couldn't find anyplace at all for ORVs, and now we've got two places. I just love it. Commissioner Henning? COMMISSIONER HENNING: I'm in favor of moving forward under some conditions. We already know that South Florida Water Management owes us 640 acres. COMMISSIONER COLETTA: Correct. COMMISSIONER HENNING: I don't -- I don't want to have to Page 112 February 24, 2009 spend monies to go through the process. That should be South Florida Water Management's to do so. At the end of the day, if we fail here and take the districts out of their commitment, we're even in worse shape. And also I would like to have some kind of indication from the Collier residents whether this is suitable. But, yeah, I would like to proceed forward in the interlocal agreement understanding the recognition of South Florida Water Management's commitment. So it's going to have to be, yeah, three people and three entities involved in that. Three hundred sixty (sic )acres is very costly in Collier County. It was supposed to be in Collier County, correct? That's what the interlocal agreement said. MR. MUDD: Six hundred forty. COMMISSIONER HENNING: Six hundred forty acres. MR. MUDD: Yes, sir. It's one section. COMMISSIONER HENNING: One section of land, supposed to be in Collier County? MR. MUDD: Yes, sir. COMMISSIONER HENNING: Okay. So that's -- it's a very costly piece of property. And. You know, hey, if it works, it works. I'm fine with it. CHAIRMAN FIALA: Commissioner Coyle? COMMISSIONER COYLE: Yeah. I think we'd be foolish not to at least proceed with Miami-Dade County to evaluate this. We don't know how this alternative or the one in Hendry County will actually work out. And I think it's important that we try to select the alternative that will provide us the best facility for the amount of money that we're spending. And so let's find out which -- which facility is going to do the best job for us. CHAIRMAN FIALA: Well, Commissioner Coletta, you're the last one. Do you want to wind this up? Page 113 February 24, 2009 COMMISSIONER COLETTA: I would love to. I hope we wind it up. First I'd like to thank the delegation that came here from Miami-Dade for coming all the way over and taking the time to meet with us, and hopefully we get to see you many more times in the future. I think we've got a wonderful opportunity that we're going to be proceeding with and going forward with. If we can get by Fish and Wildlife, that's going to be the big one. Of course, this part of discovery and what has to be done and what has to be given up, it's going to be a big factor. The item of the Hendry County land, I was going to bring that up at the -- under comments, but I'm going to bring it up now since the subject's been broached. There's nothing wrong with looking to see if there's dual possibilities. This land up in Hendry County probably has more problems to it than the land would have out there at the airport where the land has been impacted; however, with that said, why don't we see -- and I'm pretty sure there's some interest. Both Lee County and Hendry County have had grants for off-road vehicle parks, and they've been considerable, over a million dollars. And Lee County could not find a location, so they gave up their grant, but I understand if they reapplied they could get it. Hendry County put in for a grant for a place called Pioneer Acres, and everything was fine. The only problem is is within a couple -- well, about 500 yards or so, there was a house, and that person got other people to agree it was a bad idea and they actually killed the whole idea, which is pretty common anymore. We've seen that happen many times in the past. So that went away. They're looking at a temporary site. Forgive me if I'm going on, but you need to be briefed on the whole thing. Down where the state will be building a massive reservoir to capture the runoff from the lake and be able to store it, it's going to be Page 114 February 24, 2009 quite a while. So in the meantime they're talking about a temporary site for around Hendry County for them to use there, but that grant money can't be used at a water management site. That grant money's still good for Lee County, still good for Hendry County. From what I understand, they only have to reapply. So there's a possibility there might be a chance if we could direct staff just to look at the possibilities and see if there's a partnership. In the best of all worlds, we can end up with two parks at different locations, one that would serve Collier County, Miami-Dade, and Palm Beach, and another one that would serve Lee, Hendry, and Collier. And so I would also like to see if we could direct staff just to look into that possibility with a minimum amount of time spent. CHAIRMAN FIALA: Do we need a motion on this, by the way? COMMISSIONER COLETTA: No, we're just directing staff. We can't. We didn't advertise it. COMMISSIONER COYLE: Three nods. CHAIRMAN FIALA: Commissioner Henning? COMMISSIONER HENNING: Well, not that there's no pork in the stimulus package, but there are a heck of a lot of money for A TV trails. Yeah. That's not pork. COMMISSIONER COLETTA: How about limerock driveways? COMMISSIONER HENNING: I think there would be something in there. COMMISSIONER COYLE: That's definitely pork. CHAIRMAN FIALA: Okay. Well, it looks like -- yes, Mr. Mudd? MR. MUDD: I do need a motion. CHAIRMAN FIALA: Okay. MR. MUDD: You need to direct Mr. Schmitt to open up the cycle to accept this application. COMMISSIONER COLETTA: I so move. Page 115 February 24, 2009 MR. MUDD: And by the way -- and I want to make sure everybody in Miami-Dade and Collier County staff understand, by opening up the cycle doesn't mean you're going to delay the cycle. You're just going to open it up for a new application. This is it. So we've got a time constraint that they've got to get this thing in by the end of April in order to not delay everybody else that's been waiting in that cycle, because this is the 07/08 cycle. COMMISSIONER COLETTA: And I make that motion with the stipulation that we get together with water management and they recognize this as part of their overall agreement that they had with us. Just the carryforward interest on it would -- would even cover this, what they've owed us and what they haven't been able to produce, and I include that in the motion. What else? COMMISSIONER HENNING: I'll second the motion. Maybe we could just give Joe Schmitt an IOU. CHAIRMAN FIALA: Okay. COMMISSIONER COLETTA: But that was a maybe. CHAIRMAN FIALA: Okay. I have a motion on the floor by Commissioner Coletta and a second. Any confusion on the motion? Everybody understand the motion? MR. MUDD: Yes, ma'am. CHAIRMAN FIALA: Okay. Any further discussion? (No response.) CHAIRMAN FIALA: All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) Page 116 February 24, 2009 CHAIRMAN FIALA: Very good. COMMISSIONER COLETTA: Okay. Now, just a clarification to it. We did direct staff to look into the possibilities of the Lee, Hendry, Collier County joint effort? CHAIRMAN FIALA: Yes, we did. COMMISSIONER COLETTA: Okay, good. COMMISSIONER HALAS: As long as it doesn't -- does not cost the county money. COMMISSIONER COLETTA: Money? COMMISSIONER HALAS: Yeah, money, M-O-N-E-Y. CHAIRMAN FIALA: Thank you very much for being here today. MR. HERNANDEZ: Thank you, Commissioners. CHAIRMAN FIALA: Have a good day. Thank you. MR. MUDD: Madam Chair, Commissioners, your pleasure. We can continue the item that we started before lunch, which was Item -- which item was that? I'm sorry -- which was 10A, or based on the way it's been advertised, you have advertised public hearings. You have two items under 8; 8A and 8B. Your pleasure. You want to start with 8A? CHAIRMAN FIALA: That should be pretty simple actually, I would think. So why don't we just do 8A. Would that be, okay, and then we'll go back? COMMISSIONER COLETTA: Whatever the chair would like. CHAIRMAN FIALA: Okay. Let me see. Well, if I do 8A-- MR. MUDD: Here we go. CHAIRMAN FIALA: Okay. Item #8A ORDINANCE 2009-06: PUDZ-A-2006-AR-I0325: WYNN PROPERTIES, INC. AND CARBONE PROPERTIES OF NAPLES, Page 11 7 February 24, 2009 LTD LIABILITY CO., REPRESENTED BY ROBERT J. MULHERE, AICP OF RW A, INC., AND R. BRUCE ANDERSON, OF ROETZEL AND ANDRESS LP A, AND CARBONE PROPERTIES OF NAPLES, LLC, REPRESENTED BY R. BRUCE ANDERSON, ESQ., ARE REQUESTING A REZONE FROM PLANNED UNIT DEVELOPMENT (PUD) TO COMMERCIAL PLANNED UNIT DEVELOPMENT (CPUD) FOR THE SUNGATE CENTER CPUD. THE PROJECT PROPOSES A MAXIMUM OF 83,000 SQUARE FEET OF COMMERCIAL LEASABLE FLOOR AREA. THE SUBJECT 10.0 ACRES ARE LOCATED ON THE NORTHWEST CORNER OF THE INTERSECTION OF GREEN BOULEVARD AND COLLIER BOULEVARD (CR 951) IN SECTION 15, TOWNSHIP 49 SOUTH, RANGE 26 EAST, COLLIER COUNTY, FLORIDA - ADOPTED CCPC RECOMMENDATIONS & TRANSPORTATION IMPROVEMENTS MR. MUDD: This item requires that all participants be sworn in and ex parte disclosure be provided by commission members. It's PUDZ-A-2006-AR-I0325; Wynn Properties, Inc., and Carbone Properties of Naples, Limited Liability Company, represented by Robert J. Mulhere, AICP, ofRW A, Inc., and R. Bruce Anderson of Roetzel Andress, LP A, and Carbone Properties of Naples, LLC, represented by R. Bruce Anderson, Esquire, as requested -- are requesting a rezone from the planned unit development, PUD, to a commercial planned unit development, CPUD, for the Sungate Center CPUD. The project proposes a maximum of 83,000 square feet of commercial leasable floor area. The subject 10 acres are located on the northwest corner of the intersection of Green Boulevard and Collier Boulevard in Section 15, Township 49 south, Range 26 east, Collier County, Florida. Page 118 February 24, 2009 CHAIRMAN FIALA: Okay. Commissioner Halas has a question before you're -- before you even begin. COMMISSIONER HALAS: And the question is, what are the transportation commitments that are to be met by this PUD? Just to make sure that we meet the transportation commitments. MR. ANDERSON: There are right-of-way donations and an agreement to accept water management from the expanded Green Boulevard, whenever that happens, and those are the -- those are the commitments. COMMISSIONER HALAS: Good. MR. ANDERSON: And that's without any impact fee credits. COMMISSIONER HALAS: Okay, good. CHAIRMAN FIALA: Okay. Would you like to continue, Bruce? MR. ANDERSON: Thank you. Yes, ma'am. COMMISSIONER COYLE: Can I make a motion to approve? MR. ANDERSON: Please interrupt me. COMMISSIONER COLETTA: Don't we have disclosure, and we haven't sworn anybody in. CHAIRMAN FIALA: Oh, oh, I'm sorry. We have to disclose? MR. MUDD: Yes, ma'am. CHAIRMAN FIALA: Oh, sorry about that, everyone. Okay. First of all, disclosures by commissioners. Let's start with you, Commissioner Coletta. COMMISSIONER COLETTA: Thank you. I had a meeting with Bruce Anderson on 2/23. I talked to TJ Wynn on the phone on 2/24. I chaired the Golden Gate Master Plan in 1992 when this issue first came up and they received their first commercial designation. And I want to clarify with the county attorney that there's not a conflict of interest, but I own a commercial property in the adjoining block that -- I can't see where there would be any benefit one way or the other, that property that I own as far as this item goes, but I'd like to hear it from you, sir. Page 119 February 24, 2009 MR. KLATZKOW: Yeah. We discussed it yesterday, and it was your opinion this would not enure to your financial gain. As far as, you know, you're of that opinion you can vote on this. COMMISSIONER COLETTA: Yeah. Okay. Thank you. CHAIRMAN FIALA: Commissioner Halas -- Henning? COMMISSIONER HENNING: The other H? CHAIRMAN FIALA: Yeah, the other H. COMMISSIONER HENNING: I don't believe I've spoken to anybody on this one. Correct me if I'm wrong? Nobody's going to correct me. CHAIRMAN FIALA: Okay. Commissioner Coyle? COMMISSIONER COYLE: I have met with Mr. Bruce Anderson. CHAIRMAN FIALA: Okay. Commissioner Halas? COMMISSIONER HALAS: And I have no disclosure on this. CHAIRMAN FIALA: And I have met with Mr. Anderson, and I've spoken to staff about this. And so would you please swear anybody in who wants to speak on this subject. (The speakers were duly sworn and indicated in the affirmative.) CHAIRMAN FIALA: Did you say I do, Nick? MR. CASALANGUIDA: Yes. CHAIRMAN FIALA: I didn't see your mouth move. Sorry, just a little levity. Go ahead, Bruce. MR. ANDERSON: Quite all right. I believe Commissioner Coyle had been interrupted. COMMISSIONER COYLE: Yeah. Do we have any speakers? MS. FILSON: No, sir. COMMISSIONER COYLE: Yeah. I was going to make a motion for approval. It was approved by a vote of 7 -1 by the Collier County Planning Commission. You've accepted all of their conditions. The Page 120 February 24, 2009 LDC doc- -- or the document has been modified to incorporate those, and you have recognized your contributions for transportation improvements that Commissioner Halas has brought up. I incorporate those also in my motion for approval. COMMISSIONER HALAS: Second. CHAIRMAN FIALA: Okay. And I have-- MR. ANDERSON: Thank you. CHAIRMAN FIALA: -- a second by Commissioner Halas. Just a minute, Kay. Commissioner Henning has something, and then I'll let you put whatever you need on the record. Commissioner Henning? COMMISSIONER HENNING: Well, actually I'm glad Kay's up there. MS. DESELEM: No, no. I'm kidding. CHAIRMAN FIALA: No, come. Now you have to stay. MS. DESELEM: Yeah, I see. COMMISSIONER HENNING: On Page 80 of our executive summary -- it's the last page of the ordinance. MS. DESELEM: Okay. Let me go get it. I'll be right back. COMMISSIONER HENNING: Just bring the whole ordinance up. MS. DESELEM: Yes. For the record, Kay Deselem, Collier County Zoning, yes. COMMISSIONER HENNING: It says that the attached herein to Exhibit A, which is incorporated into the reference made in part thereof. That is the only exhibit that's attached to this PUD ordinance. Is the other attachments not a part of -- MS. DESELEM: I'm trying to follow where you are. I'm sorry. I'm not following where you are. You're reading from the ordinance itself? COMMISSIONER HENNING: Yeah. There's only two pages to Page 121 February 24, 2009 the ordinance, right? MS. DESELEM: Okay. Exhibit A. Okay. The PUD document itself is ordinance -- is Attachment A. COMMISSIONER HENNING: Okay. MS. DESELEM: Yes. And everything that goes with it, that's all part of the PUD document. COMMISSIONER HENNING: Well, let's clarify what everything else that goes with it is, or that is -- that is -- is is is ( sic) all the exhibits? MS. DESELEM: Yes. If you go to the list of exhibits within the PUD document, small letter i, you will see all of the exhibits listed, A through F, which are attached to the PUD document itself. COMMISSIONER HENNING: So those cannot be changed unless there is a PUD amendment, those exhibits? MS. DESELEM: With the exception of those allowances within the LDC that allow for insignificant small changes to be done throughout the process. COMMISSIONER HENNING: Okay. Page 2 of the ordinance, or the PUD exhibit, which is on Page 80 -- 184 -- MS. DESELEM: I apologize. I don't have your page numbers, so I have to have a little bit more information to know what you're looking at. Okay. He's got it. COMMISSIONER HENNING: It's Page 2 of the PUD document. Starts out with, in bold, Sungate Centers CPUD. MS. DESELEM: Okay. Statement of Compliance. Are we looking at the same thing? COMMISSIONER HENNING: Paragraph 2, it tells me that these are going to comply with the C 1, C2, and C3 districts adopted by ordinance 91-102 as adopted in October 30, 1991. Is that how I'm reading that? MS. DESELEM: That's how that reads. That's a quote from that Page 122 February 24, 2009 subdistrict of the GMP. COMMISSIONER HENNING: So any changes to the new ordinance, which is 91-102, correct me if I'm wrong, that's the old Land Development Code? MS. DESELEM: I believe you're correct, yes, sir. COMMISSIONER HENNING: So we're going by the old Land Development Code and not the new one? MS. DESELEM: The citation sites that, but it does talk about, shall be similar to, and normally when we do things like this, unless it's specifically prohibited, it goes to the amended ordinance, or it will say something to the effect of, that ordinance, as amended. As you see at the top of the ordinance on the first page, it talks about ordinance number 04-41, as amended. That's the next ordinance in line after 91-102. This was basically a reference to compliance with the Growth Management Plan, and that's where that citation comes from. COMMISSIONER HENNING: Well, that was in the old PUD ordinance. MS. DESELEM: Yes. COMMISSIONER HENNING: Mr. Klatzkow, is this correct to form? MR. KLATZKOW: It's confusing. It is correct as to form, but it is confusing. I mean, Kay, is the intent to use the current code -- MS. DESELEM: Yes, sir. MR. KLATZKOW: -- for this? MS. DESELEM: The current code as amended. That's wherein the condition comes where -- MR. KLA TZKO W: Right. The reason for this language is, is that how the GMP reads? MS. DESELEM: Correct. That is a quotation from the GMP. MR. KLATZKOW: So we never updated the GMP, correct? MS. DESELEM: It's not been updated, that's correct. Page 123 February 24, 2009 MR. KLATZKOW: Okay. But you are applying the current Land Development Code? MS. DESELEM: Yes, sir. And that was the intention of the CCPC when they made their motion on the mini-warehouse 'use, because they stated specifically that that use would be allowed if the LDC were to be amended to allow it. COMMISSIONER HENNING: Okay. And just two more things. It's your understanding that self-storage will be allowed if the 04-41 is amended to allow it in the C3 district? MS. DESELEM: That's my understanding, sir. COMMISSIONER HENNING: Okay. And then one more thing. Is there anything in the ordinance -- if the motion passes, is there anything in this ordinance that you can see that might be added to the ordinance after we pass it? MS. DESELEM: I'm not sure I follow your question. COMMISSIONER HENNING: In other words, are you okay with this ordinance as it stands if the board passes it? MS. DESELEM: Yes, sir. COMMISSIONER HENNING: Won't be any other changes? MS. DESELEM: Not to my knowledge, sir, no. This is -- this is the way it's proposed to be acted upon today. This reflects staffs position, the applicant's position and all the changes from the CCPC. COMMISSIONER HENNING: Because I just seen one that we passed recently that was changed after we passed it, so we have to deal with that. CHAIRMAN FIALA: Okay. Kay, did you want to put anything on the record? MS. DESELEM: Yes, thank you. I'd almost forgotten. I just wanted to put on the record that staff is recommending that this petition be found consistent with all elements of the Growth Management Plan as applicable, and we are recommending approval with the ordinance that you see in front of you today. Page 124 February 24, 2009 CHAIRMAN FIALA: Okay. And Bruce, did you want to say anything else on the record? We have Commissioner Coletta waiting, but -- ' COMMISSIONER COLETTA: No. I -- same questions that Commissioner Henning had. CHAIRMAN FIALA: Okay. Kay, I know you had said in my office something about they weren't even considering self-storage anymore; is that correct? MR. ANDERSON: That's correct. There was an interest at one time. Maybe there will be again in the future, but we can't have that use unless the code is amended to specifically allow it in the C3 zoning district. CHAIRMAN FIALA: Okay. So that's on the record. All right, folks. We have a motion to approve by Commissioner Coyle, a second by Commissioner Halas. Any further discussion? (No response.) CHAIRMAN FIALA: AU those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) CHAIRMAN FIALA: It's a 5-0. MR. ANDERSON: Thank you very much. CHAIRMAN FIALA: And we're going back to water. Item #8B ORDINANCE 2009-07: CPSP-2008-6: PETITION REQUESTING Page 125 February 24, 2009 THAT THE BOARD OF COUNTY COMMISSIONERS ADOPTS AN ORDINANCE AMENDING THE CAPITAL IMPROVEMENT ELEMENT OF THE COLLIER COUNTY GROWTH MANAGEMENT PLAN, ORDINANCE 89-05, AS AMENDED, TO APPROVE THEIR SUBMITTAL TO THE FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, TO DIRECT STAFF TO INITIATE CERTAIN GMP AMENDMENTS WHICH ENSUE FROM THESE AMENDMENTS TO THE CAPITAL IMPROVEMENT ELEMENT, AND TO CONSIDER COLLIER COUNTY PLANNING COMMISSION POLICY RECOMMENDATIONS - ADOPTED MR. MUDD: No, that brings you to 8B. This is the one o'clock business as it's advertised. This is -- CHAIRMAN FIALA: Oh. MR. MUDD: This is CPSP-2008-6. It's a petition requesting that the Board of County Commissioners adopts an ordinance amending the Capital Improvement Element of the Collier County Growth Management Plan ordinance 89-05, as amended, to approve their submittal to the Florida Department of Community Affairs, to direct staff to initiate certain GMP amendments which ensue from these amendments to the capital improvement element, and to consider Collier County Planning Commission policy recommendations. CHAIRMAN FIALA: Mr. Mudd, isn't this all just our own staff? Could we just wait and finish the other where we have a lot of speakers if it's only just staff? COMMISSIONER HENNING: It will only take a few minutes. CHAIRMAN FIALA: Oh, will it? Never mind. Okay. Commissioner Henning says this should go quickly, all right. MR. MUDD: Going to hold him to that. Corby? MR. SCHMITT: Good afternoon, Commissioners. In front of you, and part of your packets, the staff has included materials, your Page 126 . February 24, 2009 executive summary, the adoption ordinance for the Capital Improvement Element updates, Exhibit A, which is that Capital Improvements Element, including the schedule of capital improvements, and Appendix H, and that is the schedule of capital improvements for the out-years or the second five years of ten, and a copy of the Planning Commission's staff report, including its two appendices, A and B. Participating and working together to prepare the capital improvement element for you with the comprehensive planning department were the transportation division, public utilities, public facilities, as well as the management and budget office. The last Capital Improvement Element was adopted or amended in January of2008. What's recommended to you now is a schedule of capital improvements and some text updates that covers the five-year planning period from fiscal year 2009 through 2013, and it follows from the AUIR, which was adopted by you in November of last year. From the time of the AUIR to now, there have been some changes with project scheduling, saw additional adjustments resulting from decreased demand, reduced costs and other factors. I have one of those with me now as a handout that was not part of your packets, that was more recent than the provision -- or to you of the packets that I'll share with you now. If you'd please go to Exhibit A and that schedule of capital improvements, which is about 16 pages back, and I'll point out the change to the page you'll be receiving now. This is a change to the stormwater management proj ect page in the capital improvement schedule. And based on a very recent agreement with the South Florida Water Management District, the numbers in this fiscal year, '09, have been adjusted according to that agreement. That agreement is about one month old. So new information was vested where we could bring you a financially Page 127 February 24,2009 feasible CIE. If you look at the handout, the changes were in the column for fiscal year '09, and those numbers were adjusted to show a reduction from what were projected figures in the AUIR for $2.2 million of funding from grants and other reimbursements to be reduced down to the 1.5 million found 'in that agreement with South Florida Water Management District. The numbers have been adjusted accordingly; the staff from stormwater management and transportation have taken a look at this and agree with what you have in your hands. This is the only change from what you were provided in your uploads and that are in your booklet. The AUIR is different or was different from the CIE. I said that backwards. The CIE is different than the AUIR for this reason, our very recent change, and some others. Certainly, we've tried to provide as much information as we could about the differences between the AUIR and the CIE, and those were explained in the Planning Commission's staff report in both Appendix A and B. A listing there provides for projects that were completed ahead of time, costs coming in lower than they had been previously, and a number of other things that we've tried to show you there. The total amount of spending in this Capital Improvement Element is, with the change that was shown to you just now, 6.77 million -- I'm sorry -- 677 million, and that was 97.9 percent of the AUIR figure, so very close, and the figure in the AUIR projections was for 691 million. Both staff and the Planning Commission recommended only minimal changes to the text of the Capital Improvement Element, and those also are reflected in your Exhibit A. For future consideration but not related to the document, the Capital Improvement Element itself, the planning commissioners also recommended that in the future, in an effort to reduce costs, consider studying once-a-week refuse pickup as Page 128 February 24, 2009 a schedule alternate to the current twice-a-week arrangement. A second recommendation from the Planning Commission, also in an effort to reduce and localize costs associated with landscape improvements on county roadways, that you consider utilizing municipal taxing -- municipal services taxing units for targeting those people benefiting most directly from those improvements as alternative to the current municipal services taxing district arrangement. And pursuant to Florida Statutes, we bring the Capital Improvement Element to you with only a single public hearing necessary, and that is for this adoption hearing. And as allowed by Florida Administrative Code, the Capital Improvement Element is exempt from the twice-a-year limitation on Compo Plan amendment . . reVISIons. So the staff recommendation at this time, that you adopt by the ordinance in front of you, with the change to the single sheet with the stormwater management page and the schedule of capital improvements, these updates to the Capital Improvement Element, approve the submittal of the materials to the Department of Community Affairs, direct staff to initiate those changes, and to consider the policy direction recommended by the Planning Commission. CHAIRMAN FIALA: Commissioner -- let me ask you what you consider the policy direction offered by the CCPC means. I mean, do we -- do we have to do that? That's just -- that's just something that they want us to do, but is that worthy of putting into this motion? MR. MUDD: You don't have to do it, ma'am. You're just considering the fact that they wanted to talk about once-a-week refuge pickup and to use municipal services taxing units versus the district for landscaping. And I believe you heard -- CHAIRMAN FIALA: But that's -- to consider does not mean it's anything -- anything other than just consider? Page 129 February 24, 2009 MR. MUDD: That's right. MR. SCHMIDT: That's right. Not part of your motion, but agreement to consider in the future. CHAIRMAN FIALA: Okay. Commissioner Halas? COMMISSIONER HALAS: Yes. I had spoke with Norm Feder yesterday, and I think there's also some CIE proposed changes for transportation that I'm not sure is on here. I realize that this is going to be a moving target and we'll probably be seeing a CIE probably another three, four months from now because of what's taking place in the real world here. So maybe, Norm, you can kind of enlighten us here. MR. FEDER: Commissioner, yes. What we reviewed yesterday and what we have in the CIE is included in what you have in your documents. COMMISSIONER HALAS: Okay. MR. FEDER: The only thing I showed you -- and I'll put it up on the graphic. COMMISSIONER HALAS: Yeah. I think you ought to show that so everybody's well aware of what we're -- the changes are. MR. FEDER: For others, it's a quicker illustration of what is already included in the document you have in front of you for transportation. Basically because when we did the AUIR, we already saw that in fiscal year '08, 72 million from the prior year and impact fees were going down, we had estimated about 35 million and carried that over into the '09 when we came into budget with the AUIR. What we experienced in '08 was about 28 million in collections. Right now we're projecting 25. So coming from 35 to 25 necessitated some of these moves, and in outer years, reduction in the impact fees as well. And so that's what's reflected here. You had some projects that moved to the right. One that, unfortunately, went out of the five years, and we moved all of the Oil Well money into '09 awaiting the completion of those permits and the Page 130 February 24, 2009 ability to move on that, at least to that level of funding here in '09. So it is all in your documents there. What I was providing you is just an easier graphic to see what exactly changed from AUIR to CIE in transportation. COMMISSIONER HALAS: The other -- the other thing that I'd like to comment on is the proposal that the Planning Commission came forward with in regards to maybe garbage pickup once a week. You have to take into consideration there's a lot of homeowner groups whereby people have to store garbage cans in their garage, and that may pose a real problem. So for those people, it might get pretty ripe. That's all I have. CHAIRMAN FIALA: Thank you. Commissioner Coyle. COMMISSIONER COYLE: Just so there's no misunderstanding, I'm going to ask you to explain the comments in the summary portion of the executive summary pertaining to concurrency management and the fact that no project is subject to proportionate share, okay. That will be on Page 3 of77 in the packet, bottom of the page. We don't have any takers? MR. SCHMIDT: I'm sorry. I just don't have the same page numbering as-- MR. MUDD: You do now, Corby. Right there. COMMISSIONER COYLE: Well, it's -- last paragraph on Page 3 of the executive summary. MR. SCHMIDT: I'm there. The state requires certain financial feasibility and concurrency as well as locally adopted provisions so that those first five years are those portions of the Capital Improvement Element to meet those requirements. Last year was the first year that the Department of Community Affairs required us to show them a second five years for a schedule of improvements for the out-years. And this statement is the -- appears the same on every page of the schedule of capital improvements to Page131 February 24, 2009 denote that -- and clarify for DCA and any other reader that those out-years, the years six through ten where we're only projecting and estimating what our proj ects will be and what our revenues and expenditures will be associated with them, that in no way constitute concurrency management, and to distinguish that from those first five years that are. COMMISSIONER COYLE: Okay. I'll ask my question again. Can anybody explain to me what that means? MR. COHEN: For the record, Randy Cohen, comprehensive planning director. If you recall, you adopted, according to statute, a proportionate fair-share ordinance. None of the projects that are enumerated and listed in the CIE are subj ect to that ordinance at this time. So you have the opportunity under that ordinance, okay, to say, build roads or other capital infrastructure by entering into a proportionate fair-share arrangement with a developer or a builder or whatever the case may be, but at this point in time there are none and therefore none reflected in the CIE. COMMISSIONER COYLE: Okay. We're going to try this one more time. It says that we do not have a long-term concurrency management system. MR. COHEN: Okay. I'll do that one, too, sir. By statute, a governmental entity can establish concurrency management systems beyond five years. We do a five-year Capital Improvement Plan, and by board policy, you have a two-year concurrency management process in place. The statute allows for you to also choose to, if you would like, to go to a 10-year or 15-year concurrency management system. The reason we have that footnote on years six through ten is to make sure that DCA clearly understands that this Board of County Commissioners has not elected to go to any long-term concurrency management system and is staying with its adopted concurrency Page 132 February 24, 2009 management system as well as the policy direction that you've given us with respect to capital improvements. COMMISSIONER COYLE: Now, in your mind, is this a rolling two-year concurrency management system? MR. COHEN: From our perspective and the direction of this board, we are not supposed to put any projects in the first two years unless they're either under construction, funded, or will be completed within those two years. COMMISSIONER COYLE: Unless the infrastructure for those projects is completed? MR. COHEN: That's correct, sir. COMMISSIONER COYLE: What happens for a project that falls into the third year? MR. COHEN: For projects years three, four, and five, our instructions from DCA and the instructions as part of our process, unless we have either guaranteed funding or an alternative funding resource, we shouldn't put those in years three, four, and five. So many times you'll see projects in years six and seven that won't roll into year five, or you'll see a project, like Norm just said, that he moved out of the five ye,ars into year six because he couldn't guarantee funding. COMMISSIONER COYLE: That is a very convoluted description of what our concurrency management system is, in my opinion, and I think it leads to great misunderstanding. You're approaching it from the standpoint of placing capital improvement projects or distributing capital improvement projects over the five-year period of the Capital Improvement Plan. I approach concurrency management from the standpoint of construction projects that come to us for approval, and we then make decisions on approval based upon whether there is adequate infrastructure available for the time when they are expected to have the impact. The phrasing that you have here essentially says to most readers, Page 133 February 24, 2009 I believe, that as long as you want to build something in years three, four, and five, there is no concurrency requirement. That's what it says when it says there is no long-term concurrency management system, nor does the county commission intend to establish a concurrency management system beyond two years. Now, I have to presume that the reason you've done this is to meet some technical requirement from DCA. But I want to be very clear about what our concurrency management system is. Does everybody understand that? MR. MUDD: Yes, sir. And I believe what Randy put in there about the long-term piece and the proportionate share is because there have been some changes to Senate Bill 360 that basically said, if you have a long-term plan to ten or 15 years, then there have been instances where they're saying that development can go forward and not pay certain proportionate fair share and pay at the end of the 15-year period. So staff has been very, very specific by putting that in there so that we don't get caught in that Catch 22 because that would be -- that would be contrary to anything that this board has ever done with concurrency since you've been there and I've been your county manager. And it's been, you've got a two-year concurrency issue with your infrastructure, and that's where staffs going. And more definitively, this board said, not only is it going to be two-year concurrent, but it's got to be two-year concurrent with guaranteed funding. CHAIRMAN FIALA: Do you have your questions answered, Commissioner? COMMISSIONER COYLE: I'm not at all sure that we really have a meeting of the minds on this issue. I find this very, very confusing. First time I've heard this language. I've -- I have never heard it used in this way. MR. COHEN: One of the reasons, Commissioner, that we put the Page 134 February 24,2009 language in there, is we're required to provide, as part of the CIE, years six through ten for them to view. Under no circumstances by providing years six through ten do we want them to have a misunderstanding that this board is giving them years six through ten as part of a concurrency management system. So you see that footnote that's there. The other concern that we have is that this board, by policy, has set up the two-year concurrency management system, but the statute allows now for -- if, for instance, you did not finish something in year two, what you said you were going to finish in year two, the statute allows you all the way up to the end of that five-year period to finish it, and that's not the direction of this board. So we want -- we don't want to confuse what the statute allows and what this board has directed. And same thing with DCA. We don't want them to confuse what this board has actually directed by what the statute could permit. COMMISSIONER COYLE: Okay. I'm not going to debate it any longer. But let me say to you that concurrency -- the term concurrency means nothing if it's used only in reference to a Capital Improvement Element of a Growth Management Plan. It means absolutely nothing. Concurrency has relevance only when you take the Capital Improvement Element and relate it to proposed development orders. That's not what this does. So when you're saying we don't have a long-term concurrency management plan, most people, I believe, would interpret that as saying, we don't really care what happens after year two. You can go ahead and start building if you want to. We don't have any basis for disapproving it. MR. COHEN: Commissioner, it may work better if we clarify the footnote to state that Collier County has not adopted a long-term concurrency management pursuant to that appropriate section of the Florida Statutes, and that way maybe they'll understand -- and it's using a specific type of concurrency methodology, and that way it Page 135 February 24, 2009 would be very clear and straightforward for DCA. COMMISSIONER COYLE: That would make me feel better. But it does appear to me that you're trying to respond to some DCA technical requirement which does not recognize concurrency as we . recognIze concurrency. And I see nothing wrong with that, if that's what you're doing, but we need to have a clear understanding that concurrency means not permitting development to proceed until such time as we have adequate infrastructure to support it. MR. COHEN: And we'll modify that footnote accordingly throughout the document if that's the consensus of the board. COMMISSIONER COYLE: Well -- CHAIRMAN FIALA: I agree. COMMISSIONER COYLE: Okay. COMMISSIONER HALAS: Yeah. I think we've had this discussion in one of our workshops when 360 was upon us a couple of years ago, and I know that at that point in time we did some -- trying to hash out the verbiage so that we were protected to make sure that our concurrency was upheld in this county. And I realize where you're going, Randy, is the fact that the people up there in Tallahassee play games, and so we've got to figure out how to play games in accordance with them so that we match them move for move as they address other growth management issues that may be coming down the pike here. MR. COHEN: That's correct, sir. We're trying to provide this board and the residents of this county with ultimate protection in the CIE. CHAIRMAN FIALA: Commissioner Coletta? COMMISSIONER COLETTA: Yeah, and I'm going to take you a little different route. I was looking at the Planning Commission's recommendations, and one of them that was in here was concerning the once-a-week refuge pickup schedule, and I'd like to call Mr. Page 136 February 24, 2009 DeLony up, if he's still in the building. COMMISSIONER COYLE: We're not even discussing that. COMMISSIONER COLETTA: What, did he step out for just a moment? Just to be able to clarify this. COMMISSIONER HENNING: Well, if I could just say something. That's not on the agenda right now. CHAIRMAN FIALA: Right. COMMISSIONER HENNING: That's not a part of this submittal COMMISSIONER COLETTA: Okay, I-- COMMISSIONER HENNING: -- to DCA. COMMISSIONER COLETTA: I understand, but it was in there, and I just wanted to be able to have it addressed. If it's something -- it would just take just a minute to do it, because I think there's some misconceptions about where we're going with the -- CHAIRMAN FIALA: That's just something to consider at a future time, isn't it though? That doesn't have anything to do with this submittal. COMMISSIONER HENNING: Right. COMMISSIONER COLETTA: Okay. I just seen it in there and I wanted to share it with the commission. Thanks anyways, Mr. DeLony. COMMISSIONER HENNING: Thank you, Mr. DeLony. COMMISSIONER COLETTA: Your presentation was wonderful. MR. DeLONY: Thank you, sir. COMMISSIONER HENNING: With that, I'll make a motion to approve the submittal of the CIE/ A UIR. COMMISSIONER COLETTA: I'll second that. MR. SCHMIDT: And is that understood it's with the page as amended and the handout and with the suggestion from Commissioner Coyle? Page 137 February 24, 2009 COMMISSIONER HENNING: That's part of the motion. COMMISSIONER COLETTA: And the second. CHAIRMAN FIALA: Okay. Any further discussion? (No response.) CHAIRMAN FIALA: I have a motion on the floor by Commissioner Henning and a second by Commissioner Coletta. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) Item #10A - Continued from earlier in the meeting RESOLUTION 2009-45: DENYING THE ALTERNATIVE IMPACT FEE APPEAL SUBMITTED BY TAMIAMI SQUARE OF NAPLES, LLC (DEVELOPER) AND AUTHORIZE THE CHAIRMAN TO EXECUTE A NOTICE TO THE DEVELOPER FOR THE COLLECTION OF THE COLLIER COUNTY WATER- SEWER DISTRICT (CCWSD) AL TERNA TIVE IMP ACT FEE CALCULATION OF $120,904 FOR BUILDING 300 - MOTION TO APPROVE STAFF'S RECOMMENDATION TO DENY APPEAL - ADOPTED; MOTION TO APPROVE PAYMENT PLAN OPTION #4 AS AMENDED MR. MUDD: Commissioner, I think that brings us back to lOA, which is -- was started at 11 o'clock this morning, and we continue now. And this item requires, again, that all participants be sworn in and Page 138 February 24, 2009 ex parte disclosure be provided by commission members. Commissioners have already done the ex parte. If any member of this discussion have come late and if you're going to speak, then when you go to speak, let the court reporter know -- oh, by the way, that was Corby Schmitt from comprehensive planning that presented the last item for the court reporter because he didn't identify his name. If there's anybody that hasn't been sworn in, before you get up and speak, please state so to the court reporter, and we will do a quick . . swearIng In. This is a recommendation to deny the alternative impact fee appeal submitted by Tamiami Square of Naples LLC, the developer, and authorize the chairman to execute a notice to the developer for the collection of the Collier County Water/Sewer District alternative impact fee collection of $120,904 for Building 300. You previously have heard the petitioner's presentation, and I believe at this time Mr. Tom Widis, your director of financial operations for public utilities, will present. MR. WIDES: Commissioners, good afternoon. As Mr. Mudd said, I'm Tom Wides, the operations director for public utilities. I'm joined today by Jennifer White from the -- the assistant county attorney, also by Robert Orry, the principal for PRMG, which is the Public Resources Management Group. That is the group that does our rate studies and impact fee studies for the last -- at least for the last eight years I have been here. Finally, I'm also joined by one of my staff members who is very involved in the impact fees, which is Gilbert Moncivaiz. To reset, as Mr. Mudd said, you can -- you can view the recommendation up on the board, which is to deny the alternative impact fee request submitted by the developer. And what we've found is that over time -- let me get this back up. The buildings, again, to remind you from what you saw this morning, the buildings at Tamiami Square are -- there's actually three buildings. One, Building Page 139 February 24, 2009 100, is proposed; Building 200 is constructed with no occupancy at this point; and Building 300 is constructed with occupancy. You saw a discussion this morning, the chart that looked very similar to this, and I wanted to readdress some things we talked about this morning. First off, there is a consolidated impact fee reference to average daily flow. And to bring back a very -- I think a very important question that Commissioner Henning asked this morning, the ordinance, in fact, addresses average daily flow, not annual average daily flow. And let me just put this up on the visualizer for you for a moment. As you read -- as you read this part of the ordinance, it specifically states projected average daily flows for nonresidential uses. There is no reference to annual average, and that will become important as we go a little farther in this discussion. Further, within that same ordinance, Section 74-504, again, we reference average daily flow, ADF, not annual average. And if you'll bear with me, we'll bring that to -- we'll bring that back to you in a moment. And as you'll see, our calculation, using historical data, was 54.9 ERCs for water. It was questioned this morning as to how we came to 54.5. In fact, included in your packets is a document that shows what the usage was from an ERC basis throughout the period from approximately March of'07 through August of'08. And if you'll remember from the time lines we talked about this morning, there was a lot of activity in terms of letters being written and the actual alternative fees being calculated right at the end of August, and that's the period of time we looked at. And, again, if I can go back to the visualizer for you. It's a little hard to read, but we might be able to pull it in a little bit. What you're going to see on this record is our calculation using the four months of 54.- -- excuse me -- 54.9 ERCs. And if you look Page 140 February 24, 2009 down the right-hand side of this column, what you'll see is, again, starting in March of '07, you'll see on the very far right-hand side the number of ERCs on an average-month basis, consistent with the ordinance. And what you'll see is, we had a period of time in the early part -- late part of '07 and the early part of '08 where the developer's representative stated to us unequivocally that they had problems with the irrigation system, that they had line breaks, et cetera. And you'll see at one point in time the actual peak flow was 63.8 ERCs. We avoided that period. We instead waited tell the period, April, May -- excuse me -- April, May, June, and July, till actually after all their work was completed, after all the damage had been repaired. We selected the period after that, and that period averages out -- the monthly averages average out to 54.9. That is actual usage. There was a discussion this morning that talked about that -- we spent a lot of time talking about separating irrigation from the actual indoor use. In our case for impact fee assessment, there's no difference. We originally received a request from the developer in March of2008 for an irrigation meter. Nothing was ever done with that. The 6.1 ERCs that we calculated was based on data provided by the developer. So these were not staff numbers. And all I'm trying to say to you is, whether the water was used as irrigation use or indoor use, it was 54.9 ERCs, which is what we calculated our water impact fees based on. Further, what I'd like to do is ask our consultant to spend just a few moments with you talking about that whole concept of the average daily flows versus the annual impact of it. MR. ORRY: Good afternoon. For the record, my name is Robert Orry, principal with Public Resources Management Group and was the principal in charge for the impact fee calculation that was adopted a year or so ago, I'd say now. What I'd like to do is talk a little bit about that report, Page 141 February 24, 2009 calculations, and then talk about the property in particular. In the development of the impact fee study, that report which was adopted by you all had a lot of scrutiny in terms of utility staff, their consultant engineers; it went -- had to stand before the Development Advisory Services Committee and the Productivity Committee to not only review the results of the calculation but also the methodology involved and determination of the fee. And there's really two parts to that fee that need to be looked at. One is the capital side or the dollar side. I think, Commissioner, you mentioned or talked about the capital earlier today, and the other is the capacity allocation. I don't think there's any dispute on the calculation itself, how it was done. The question is -- is some of the theory behind it. In terms of the capital dollars, all the capital costs that were assigned to service the Collier County Water and Sewer Service District for the next ten years or so was recognized. That would include the peak demand for that capacity. The key is your level of service that you've adopted is an average daily demand, I think 350 gallons a day for water, 250 gallons a day for wastewater. And in our calculation, as correctly pointed out by Mr. Lewis and Mr. Hartman, we made adjustments on an annual average daily flow basis to get to an average-day type of flow in an attempt to link the capacity of the facilities with the adopted level of service, which is an average day capacity. We talked that -- as we did that assumption, we talked with your engineers, et cetera, was that a reasonable assumption to use, and we all figured it was a reasonable assumption to use. Brings that down to an average daily flow. If you really look at the calculation, it really is a daily-type calculation, because what -- there's two other issues here. One's availability of capacity and one's an applicability issue here. We've assumed in our analysis that capacity, I think it was like Page 142 February 24, 2009 30.4 MGD, I believe, average daily flow, is available 365 days a year. It's not available one day. It's available every day, and that links to your capacity; however, when you turn around and apply an impact fee to a consumer, we don't care how they use capacity. It's the capacity reserved for that property. They may use it one day, they may use it 50 days, they may use it 300 days, but you have to have the capacity to serve you. That's the applicable provision. And I've kind of done a very simple presentation of how this kind of works. I've got customer one and customer two. Obviously it's a little bit more difficult than this. But customer one. Customer one is the blue here. That customer on an average daily-flow basis uses 350 gallons per day every day for 365 days. What's his capacity? Three hundred sixty-five -- 350 gallons a day. Excuse me. If I said 365, I meant 350. What's his annual average daily flow? Three hundred fifty gallons a day. Customer B. He uses 350 gallons for about three months, 91 days, and uses no capacity for the other nine months. It's kind of hypothetical. We doubt that would really happen, but to show you this. What is his demand on the system, average daily flow during that period of time? Three hundred fifty gallons a day. What's his average annual daily flow? Eighty-seven, because you take this capacity, divide it by -- this use, excuse me -- divide it by 365 days, would give you 87 gallons per capita -- for annual average daily flow. And if you think about that, that just doesn't really make a lot of sense that we charge somebody less than the amount that their capacity demand on the system would be relative to the level of service. And that's the intent of the ordinance. I believe that's what the ordinance is trying to say, and that's why you adopted an average daily flow in the ordinance. Again, this is a very simplistic diagram. I wanted to show you that's how I think it works. This capacity here is just unused, and many people use less than their allocated capacity. Some use more. For example, myself, I've been out -- I live Page 143 February 24, 2009 in Winter Springs, Florida. I've been allocated 350 gallons a day of capacity, like you, about 10,000 gallons a month. I use about six. I don't use all my capacity, but the reservation of capacity allocated to me is 10,000 gallons. And with that, I'll turn it back over to you, unless you have any questions. MR. WIDES: Thank you, Rob. Commissioners, any questions for Mr. Orry? Okay, then -- sir? COMMISSIONER HENNING: The -- is it true that that peak capacity is already calculated into the -- each ERC? MR. ORRY: Technically I'd say yes. The total capital cost to meet the peak demand is in the fee calculation. In other words, if my wastewater plant or water plant was $40 million to construct that facility, $40 million in the calculation. Because your level of service is an average daily flow, a daily-flow basis, I adjusted the -- that peak capacity for that plant down to an average day, as was pointed out earlier to you in the previous presentation. So the rate itself would recover those capital costs. COMMISSIONER HENNING: We were previously charged by meter size on what your impact fees were. Would it be a correct assumption -- and you were involved in that fees back then. Would it be a correct assumption that the larger the meter, the more impact fee that you paid? MR. ORRY: Under the meter-based approach? COMMISSIONER HENNING: Yes. MR. ORRY: I would say it really depends on the capacity of the customer itself. I've seen some -- 6-inch meter, they -- I think the 6-inch meter has an equivalent meter factor -- I believe it's 50. I have to write that down and check -- but I've had -- seen some, like a mobile -- multi-family unit or a large commercial customer have capacity and uses well in excess of 50 ERCs, and that's why -- that's Page 144 February 24, 2009 why you -- MR. WIDES: I'm sorry, Commissioner. I think, I -- if I may? Back when we were using the meter size in Collier County, yes, in fact, the bigger the meter, the larger the impact fee. Is that your question? COMMISSIONER HENNING: Yes. Is that a true statement -- MR. ORRY: Yes. COMMISSIONER HENNING: -- what Mr. Wides just said? MR. ORRY: I'm sorry. 1 thought you were talking about the customers within that meter size. Yes, as the meter size increased by size of a meter, 6-inch versus 2-inch versus five-eighths, the fee was greater for the higher the meter size, that's correct. COMMISSIONER HENNING: Now, you charge by ERC per the use category; is that correct? MR. WIDES: Commissioner, we charge by ERC. We do not look to the size of the meter. Now, there's a very important-- COMMISSIONER HENNING: No, I know that. That wasn't the question. MR. WIDES: Okay. We do charge by use. COMMISSIONER HENNING: Hang on. You have different uses out there. Give you a parable. Transportation impact fees. You have different-size houses, you have different-size transportation impact fees. You have different businesses, you have different transportation impact fees. How do you do your impact fees for each of the uses? MR. WIDES: Commissioner, we, in fact, use the Florida Administrative Code or the Florida Plumbing Code, whichever is greater, to assess the types of fixtures and usages within the unit. And the attempt is, in fact, where you have a restaurant side by side with a real estate office, you assess a more appropriate use to the restaurant rather than charging everybody the same. COMMISSIONER HENNING: But it was pointed out to us Page 145 February 24, 2009 earlier, that's with an on-site sewer plant. MR. WIDES: Yes, sir. And first off, I'm speaking to water. And then to answer your question on, there is no exact code that we can find that would give you an exact reading of sewer. As we are very well aware, sewer is not under pressure as water is as it moves through the pipes. Meters are generally less than 100 percent accurate in -- COMMISSIONER HENNING: If you have an on-site sewer plant, you shouldn't be charging sewer impact fees anyways because they're already provided. What I got out of the appellant is you're tying the rate studies according to what administrative code -- was that 64 or something like that? MR. WIDES: Yeah, 64E.6.00008 (sic). COMMISSIONER HENNING: So we're charging impact fees, water impact fees, based upon that part of the administrative code? MR. WIDES: Not water for -- not -- we don't base water on sewer, first off, okay . We're basing water on fixture counts and flows. It's the sewer side that has less -- less accuracy to it because -- COMMISSIONER HENNING: Can you show me the administrative code that shows you where you're charging the different user categories for -- for water? MR. WIDES: Commissioner, I'm going to ask Gilbert Moncivaiz, who works with this every day, to give you a little insight on exactly how he makes these calculations, if that is okay. COMMISSIONER HENNING: Is that a part of the impact fee calculations? Wouldn't your consultant know that? MR. WIDES: Well, this is -- this is actually -- this is actually application of the impact fee process, which is done by our staff. COMMISSIONER HENNING: Okay, that's fine. MR. MONCIV AIZ: Yes, sir. Commissioner, you were correct that we are using a table of sewer flows for the calculation. This is actually to the advantage of the customer. There is a water table in the -- a level of service water table that is available that actually has Page 146 February 24, 2009 higher rates. So we decided in order to keep a uniform, and one calculation, that we would use the lower value, which in this case was sewer flow rates. COMMISSIONER HENNING: Is that the Florida Administrative Code? MR. MONCIV AIZ: This is an example of the excerpt of the Florida Administrative Code. As you can see, that they have different categories for the different type of business use and allocate difference usage in gallons per day for the different type of business. So this is what we use as a guide in order to do the calculations. Originally for the development, if we just look at Building 300, using Florida Administrative Code, we came to 55.9 ERCs with Florida Administrative Code. When we looked at historical data from the time that it was relevant, we came to 54.9, a variance of around 2 percent. So we feel that this is a very accurate representation. COMMISSIONER HENNING: Okay. Now, Mr. Wides, do you -- are you aware of -- in the impact fee ordinance, about the definitions of average flows? MR. WIDES: I believe I am, sir. Is there a further question you want to elaborate on? COMMISSIONER HENNING: Yeah. Can you show that to us, what that says in the ordinance? But that's not a definition though. MR. WIDES: An average def- -- an average daily flow would be, by definition, literally the amount of water going through a use on an average day. COMMISSIONER HENNING: So how would you calculate -- I mean, you're calculating it -- the calculations that you showed and the appellate showed was by month, not daily. MR. WIDES: Yes, sir. COMMISSIONER HENNING: So I need to know why you're picking out certain months out of a year when we're dealing with Page 147 February 24, 2009 average daily flows. MR. WIDES: Yes. Commissioner, this -- I'll put this chart back up again. That chart shows -- about the third, fourth column over actually shows the total usage during a month. We take that number, divide it by the 350 gallons for ERC, divided by the number of days in a month to get an average flow. So we get the total flow for the month and bring it to back to a day. And oh, by the way, those are not peak days. Those are average. And I believe you asked me in your question as to why we picked the certain months we did. The months we picked were May, June, July, and August. They had irrigation piping issues at Tamiami Square, as told to us by the developer, prior to that period of time, and so we excluded that period of time. And we tried to work forward and give them a reasonable estimate based on what they actually used after they resolved their issues. We didn't -- I heard a term this morning that really wasn't accurate. We didn't pick a period of time. We chose it based on after all their irrigation and piping issues were resolved. It would have been unfair on our part to go back into a period of time when they had the irrigation issues. We tried to -- we tried to eliminate that. But, quite frankly, that water was still used, and we could have chosen to go back there. That -- and 63.8, I believe, was the ERC at its peak. That water was used. That had an impact on the water plants, but we chose to try to be reasonable here, to ignore that period and move forward and stay within the confines of the ordinance. COMMISSIONER HENNING: Thank you. CHAIRMAN FIALA: Okay. Commissioner Halas? MR. WIDES: You're welcome. COMMISSIONER HALAS: There was something that was brought up that we use septic tank calculations. Can you clarify that? MR. WIDES: Yes. And I'll ask Gilbert to help us here a little bit Page 148 February 24, 2009 also. COMMISSIONER HALAS: Sure. MR. WIDES: But most importantly, the Florida Administrative Code speaks to the on-site septic situation, okay, but it's a -- it's a good benchmark for data, because we don't have real solid, accurate ways to measure sewage flow because it's not under pressure. But it's a good benchmark. It's used -- as a understand from talking to our consultant, it's used by other communities. COMMISSIONER HALAS: Okay. Because we -- they are hooked up to the Collier County sewer system. We're not talking about a septic system at all. MR. WIDES: That is correct. COMMISSIONER HALAS: But they brought that in. Was that a red herring or was this -- how do we come to this conclusion with the septic system? MR. WIDES: I'd be speculating, sir. COMMISSIONER HALAS: Okay. I think maybe -- MR. DeLONY: I got it. Tom, I got it. Excuse me. For the record, Jim DeLony, public utilities administrator. We have to have a benchmark, a standard of understanding to apply these forward-looking fees of what is the impact of a facility's usage of wastewater on the system. COMMISSIONER HALAS: Okay. MR. DeLONY: And so what this code provides is, say, by usage, you know, how much flow you can expect for this usage. Now, I understand today that the developer's representatives thought that that was somehow, you know, only applies to sewage-- septic tanks. It's at the point of service. Ifwe were a septic tank system, we'd have it flow into the septic tank. This is no different, just because we pick it up at a gravity pipe, maybe move it for pressure eventually to the plants. It's point of service calculation that we're trying to find or seek or establish in establishing the allocation of Page 149 February 24, 2009 impact. So I don't know if it's a red hearing or not. I mean, it's a point-of-service calculation. Whether it's a septic tank or whether it's a sewage plant, you're still getting a certain amount of gallonages or flows -- COMMISSIONER HALAS: Okay. MR. DeLONY: -- and that's the purpose of having that benchmark, sir. Did I answer your question? COMMISSIONER HALAS: You sure did. MR. DeLONY: Thank you. COMMISSIONER HALAS: Thank you. CHAIRMAN FIALA: Do you want to continue, Tom? MR. WIDES: Commissioners, that really -- you know, we've talked about water; we've talked about irrigation, which are important points this morning; we've talked about the sewer flows, the -- and we've talked about the consolidated impact fee ordinance and how, in fact, it speaks to average daily flow. At that point, I really moved back to our recommendation. CHAIRMAN FIALA: Are you now summing up, Tom? MR. WIDES: Yes, I am, Commissioner. CHAIRMAN FIALA: I mean, Mr. Wides. MR. WIDES: And, again, this takes us back to our recommendation. It is to deny the alternative impact fee submitted by the Tamiami Square of Naples and to -- and to authorize the chairman to execute a notice to the developer for the collection of the Collier County Water/Sewer District alternative impact fee calculation of $120,904 for Building 300 within Tamiami Square. That's all I have unless you have any further questions. CHAIRMAN FIALA: I think Commissioner Halas has one. COMMISSIONER HALAS: Yes. This is for the attorney on this. CHAIRMAN FIALA: Our attorney? COMMISSIONER HALAS: Our attorney, yes. Page 150 February 24, 2009 Do you believe that the system that we currently have in place in Collier County for commercial hookup for water and sewer meets a dual rational nexus and -- in regards to the impact fees that are charged? MS. WHITE: Jennifer White, assistant county attorney. That is not a question for me as the legal adviser; however, what I can tell you is that the ordinance was proof for legal sufficiency brought before this board heavily relied upon by a methodology report. And so based on all the past history, yes, the answer is yes. COMMISSIONER HALAS: Okay. Do you have anything to offer? MR. KLATZKOW: No, the answer is yes. The question though is whether or not it's fair in the context of this particular use that we're talking about. CHAIRMAN FIALA: Okay. I have Commissioner -- oh, did you have more? COMMISSIONER HALAS: I just -- CHAIRMAN FIALA: I'm sorry. COMMISSIONER HALAS: And I'm trying to get a clarification on that. So maybe somebody from staff can tell me that this is a proven -- a way of addressing impact fees that -- in the county here and that it meets a dual national nexus in regards to making sure that we treat -- whether it's residential or in this case, it's commercial. We treat these people in a fair and honest manner. MR. WIDES: Commissioner, Tom Wides for the record, again. Yes, I believe it is a fair method, and I can also tell you that over the years, as Commissioner Henning spoke to, we've moved along a path of trying to get closer and closer and better at the way we assess our impact fees. And one step further is, yes, we used to use meter size, which means everybody was treated the same; there was no differentiation. We worked to try to separate the fact that a meter has a very wide Page 151 February 24, 2009 range of flow, and folks at the lower end of a meter range would pay differently and lower than folks that were using at a higher end of the range. So we're trying to differentiate our customers by the types of use. Did I respond to your question? COMMISSIONER HALAS: Yes, you did. My final question is, the chart that you presented as evidence in regards to the flow rate, this was the actual water that flowed through the meter? MR. WIDES: This is the actual water that flowed through the meter on -- and what was actually on the utility bills. COMMISSIONER HALAS: Okay. Thank you very much. MR. WIDES: You're welcome. CHAIRMAN FIALA: Okay. Commissioner Coyle, and then we also will have a summation by the appealing party. COMMISSIONER COYLE: Would you put up that table of average -- average monthly flows, I guess it was. MR. MUDD: This one, sir? COMMISSIONER COYLE: Yeah, that's the one. Thank you. Now, the petitioner's agent has represented that you used peak daily flows to calculate the water charges. Is that what you understood him to say? MR. WIDES: Well, I understood -- I heard the word peak a lot this morning. COMMISSIONER COYLE: Yeah, a lot of peak. MR. WIDES: I heard a lot of peak this morning, and I've tried to differentiate this afternoon that, in fact, I looked at a month utility bill, and I divided it down to get to an average daily flow within that month, month after month after month. Now, I did select the four months that were after the irrigation damage, et cetera, right up to the point we were meeting and moving forward. So yes, I did select a short -- you know, a fourth-month Page 152 February 24, 2009 period, but you also saw a chart from Mr. Orry just a few minutes ago that showed a three-month period and what happens. I'll stop. COMMISSIONER COYLE: Okay. Now, this is an actual measure of water usage. There's no dispute about this. This is -- is this correct? MR. WIDES: Sir, there's no dispute. It's a utility bill and the actual usage on the utility bill going through the meter. COMMISSIONER COYLE: Now, I also heard Mr. Lewis say if you remove the irrigation amounts from these, they would be substantially lower. Well, of course. Why would you remove irrigation? Aren't they using the water? MR. WIDES: Well, they -- they being the developer -- had the option when they built Tamiami Square to separate the irrigation use if they so choose. Now, by leaving the irrigation use on the one single meter, they are being charged for sewer. By removing and setting up a separate flow for irrigation, there's no charge for sewer. I mean, that's fine. But there's also been a year period now where there's been inaction, no action, on trying to get that irrigation meter, up until literally about a week ago, or maybe two weeks ago. COMMISSIONER COYLE: Okay. So the only relevance of that point is that it has an impact on the sewer rates? MR. WIDES: Yes, it does. COMMISSIONER COYLE: All right. Now, do I, as a homeowner, have the option of making that separation? MR. WIDES: There are a couple options as a homeowner. In some cases you may be serving your community to dual piped with literally reclaimed irrigation water. COMMISSIONER COYLE: Well, I'm not talking about reclaimed. This is not a reclaimed water system we're talking about. MR. WIDES: Just want to cover the landscape. Or we have had people come in and ask to have their irrigation separated, okay, but Page 153 February 24, 2009 they pay an impact fee for that use, okay, and then they are separately metered if they so choose. COMMISSIONER COYLE: Okay. CHAIRMAN FIALA: Okay. Now-- COMMISSIONER COYLE: I -- okay. Yeah, I'm finished. I can hold my other questions till later. CHAIRMAN FIALA: Good. Because now we have cross-examination by the appealing party. Please. MR. LEWIS: Thank you, Commissioner Fiala. Just a few questions. In calculating the 55.9 water ERCs for the project, did you base your calculations when you looked at the site on Florida Administrative Code 64E.6.008? MR. MONCIV AIZ: That's correct. The original calculation was taking that into account. MR. LEWIS: Okay, thank you. How does the 40 gallons per day seek requirement of the Florida Administrative Code compared to the gallons per day standard in other jurisdictions? MR. MONCIV AIZ: We want to know -- I'm sorry. MR. WIDES: Excuse me. We don't know. And -- quite frankly, we don't know. CHAIRMAN FIALA: Could you ask the question again? MR. LEWIS: Sure. I wanted to ask how the 40 gallons per day that's out of the Florida Administrative Code provision that you recall we put the slide up that dealt with when you're building projecting capacity for an on-site system, the 40-gallon per day, my question is, how does that 40-gallon per day flow estimate compare to other jurisdictions in estimating flow for a restaurant? And his answer was, I don't know; is that correct? MR. MONCIV AIZ: The answer to that is that the Florida Administrative Code, which is by the State of Florida, is what we use as a guide. So specific county use or different other entities using that Page 154 February 24, 2009 different basis we wouldn't have the knowledge of, but we use Florida Administrative Code as a reference, and Florida Administrative Code designated 40 gallons per day. MR. LEWIS: Okay. And did you use the Florida Administrative Code reference or were you required to use the Florida Administrative Code before 2007 and the 2007 ordinance that tied projected flows to the Florida Administrative Code provision? Did you use other standards before 2007? MR. MONCIV AIZ: What happened with -- the change happened in 2003, which changed to evaluation from strictly meter side to ERC calculations, and use ofERC calculations in 2003, we had to put something in place that allowed us to look at flows of particular establishments. So Florida Administrative Code was used and the evaluation of ERC value from 2003 forward -- actually it was August of 2003 forward. MR. LEWIS: Okay. Because I'm looking at ordinance 2007-52, and I have reviewed all of your ordinances. And in that ordinance it says, the projected flows is based on the then-current edition of the Florida Plumbing Code and the then-current editions of the administrative code, and it's whichever's greater. Before that ordinance, did you have a requirement that you had to use the Florida Plumbing Code or the Florida Administrative Code in determining projected flows for a project, before 2007 -52? MR. WIDES: We'd have to go back and review that. MR. LEWIS: Okay. Did you -- as a utility department, did you accept applications from another applicant who presented an alternative flow of 15 gallons per day supported by another jurisdiction as a standard to calculate ERCs on restaurants? MR. WIDES: Do you have a specific in mind? MR. LEWIS: I'm ask- -- I do, that's why I'm asking. I'm asking you to corroborate. Page 155 February 24, 2009 MR. WIDES: Well, I guess the point being is, we get many types of -- MR. LEWIS: Okay. MR. WIDES: -- forms and questions coming through and-- MR. LEWIS: Do you recall an ice cream store that was turned into a 50-seat restaurant at the corner of Vanderbilt and Airport-Pulling, the shopping center where they provided you with a different flow basis for seating? MR. WIDES: If you don't recall, you don't recall. MR. MONCIV AIZ: I don't recall that specifically. MR. WIDES: We don't recall that. MR. LEWIS: Okay, that's fine. Okay. Does the county charge ERCs differently when you're looking at water being used for irrigation under an irrigation meter versus water being used for a specific purpose within a particular development, like a restaurant use or retail? Do you use a different formula to do that? MR. MONCIV AIZ: Yes, and that goes into a totally different calculation, because the information that's applied to us for irrigation meters is applied in gallons per minute. What we deal with for ERC calculations is gallons per day, so that is supported by the Florida Administrative Code. So, yes, there is a different calculation that's undertaken, but we always translate it into the lowest common denominator, which is the value -- the unit value of an ERC, equivalent residential connection. MR. LEWIS: Okay. And for an irrigation meter, your largest meter size is a 2- inch meter; is that correct? MR. MONCIVAIZ: No. You have the option to install a larger meter if you wish. The county can only install up to a 2-inch meter. MR. LEWIS: And what's the maximum ERC that you're able to charge on a 2-inch meter for irrigation purposes? MR. MONCIV AIZ: I don't have that calculation in front of me because, once again, that calculation's done in gallons per minute. I Page 156 February 24, 2009 believe the top range for a 2-inch meter is 144 gallons per minute. MR. LEWIS: Could it be 136? MR. MONCIV AIZ: I have -- MR. LEWIS: While you're looking that up, is -- the question is, do you -- when you look at that, are you looking at run times, how long the sprinkler systems are running, how long they're irrigating, are you looking at the size of the head and the number of heads in a zone? MR. MONCIV AIZ: There's an application form that you would have to fill out. So based on the information that you give to us, that's what we look at. MR. LEWIS: So -- MR. MONCIV AIZ: So all of those details would have to be done by your development or your -- whoever you're representing. I just checked with the current range that we have in existence for the 2-inch meter. It is 144 gallons per minute. MR. LEWIS: Okay. And is that based on flow, or is it based on the -- again, the type of sprinkler and the number of heads? MR. MONCIV AIZ: Once again, it's gallons per minute, which is a totally different calculation than what we've been talking about with Florida Administrative Code and flows. MR. LEWIS: So it's not a flow-based; is that correct? MR. MONCIV AIZ: What happens is the gallons per minute is converted, so the only thing that we have to go on is gallons per minute, which is a flow that goes through. MR. LEWIS: For example, in your application do you ask the applicant how long are they going to run their sprinklers, or do you ask how many zones and what type of equipment are in the zones? Do you ask or do you limit how long they can water, when they can water, how long those zones can operate for in your application? MR. MONCIV AIZ: Once again, you're giving us the information or a potential customer is giving us the information. We take that information and then we convert it into an ERC value. Page 157 February 24, 2009 MR. LEWIS: I'm asking about your form. MR. MONCIV AIZ: The form does not ask for a specific type of a question. The form asks for the number of zones that you'll have operating, and the form also has the calculation on it so that someone could determine what their ERC value is before they turn in the application. MR. LEWIS: The LOS water table that you refer to -- when you mentioned that you felt that the standard -- the 64E.6.008 was a fairer standard to use than others, what specific LOS water table were you referring to in the Florida Administrative Code? Is it 25-30.055? MR. MONCIV AIZ: I don't know the exact reference of that since it's not used on a consistent basis. That's why we used the sewer flows as the only means for Florida Administrative Code. MR. LEWIS: Okay. So that -- you used 64E.6.008; is that correct? MR. MONCIV AIZ: (No verbal response.) MR. LEWIS: Okay. And are you familiar with Florida Administrative Code 25-30.055 that deals with systems with capacity or proposed capacity to serve 100 or fewer persons and the ERCs that that would provide? MR. MONCIV AIZ: I'm not familiar with that. MR. LEWIS: Okay. Based on Florida Administrative Code and the FDEP requirements, do they look at annual average daily flows, or do they look at peak or average daily? That's my last question. MR. WIDES: Let me ask our water department director to make comments to that. We cannot answer that from this position. , MR. MATT AUSCH: For the record, Paul Mattausch, water department director. Counselor, again, what is your question? MR. LEWIS: My question is that when you look at 64E.6.008 to determine water/sewer flows, projected flows, do they take into account annual average daily flows in those flow numbers? Page 158 February 24, 2009 MR. MATTAUSCH: What we are talking about here, I believe, is the Collier County ordinance that was vetted and passed by this Board of County Commissioners that we are basing billing on, and that talks about average flow. MR. LEWIS: Okay. But my question was, does the Florida Administrative Code, which you've used, and I go in and apply for a project and I rely -- and we're looking at the Florida Administrative Code, is that expressed in annual daily average or annual average flows? MR. DeLONY: For the record, Jim DeLony. Counselor, I believe that it's an apples-and-oranges things you're asking us here, if I may. And I don't mean to be confrontational. But we look at what you use or what you demand and we make the calculation based on the ordinances at hand; the Florida Administrative Code, as I said earlier, with regard to it as an indicator and a guide as to what those projected demands would be. And I don't really know if I could answer a question nor is my staff prepared to answer the question with regard to average actual daily flow or daily actual flow. I think I've kind of been as clear, and we've been as clear as we possibly can for you and everyone else to ensure that we are working very hard to ascribe the impact commensurate with the ordinance and that this leveling of service that we prescribe by the ordinance is what you pay for. And so I don't know if I can really get into the nuances of the FAC with you today, sir. MR. LEWIS: I appreciate that. The reason for the question was, I asked specifically, when you calculated 55.9 on our project, did you use 64E.6.008 to determine projected flows, and the answer was yes. MR. DeLONY: The answer's yes, but more importantly, Counselor, if I may, what we have prescribed in this agreement or in this situation is observed flows, the metered flows that went across the meter, and we selected fourth -- a four-month period of time with Page 159 February 24, 2009 regard to that impact of that water. We've expressed -- we've laid that out very carefully today. And it was not the most highest time that you impact. I think we've established clearly that the ordinance is clear that we have to charge your impact on the system, what you actually use in the way of capacity on that system to service your development. MR. LEWIS: I appreciate that and I respect what you're doing, and my question to you -- I'm just trying to get an answer here. Again, when we look at 64E.6.008 and when you see a restaurant use and you see 40 gallons for a restaurant per seat, my question is, is that 40 gallons expressed as an annual average daily flow, yes or no? That's all I'm -- and I understand everything else you're trying to tell me, and we're going to talk in a minute about the actual data and historical flows. That's my question. MR. WIDES: Gallons per day? MR. LEWIS: Florida Administrative Code, okay. MR. WIDES: Gallons per day. CHAIRMAN FIALA: Okay. Now, we'll have cross-examination by staff. Then we'll take a break and we'll come back and each side can do a summary, and then we'll vote. Okay. Yes? MR. WIDES: Commissioners, in the interest of moving this along and with the effort we've put into this, trying to get these numbers right, we're very confident in the validity of these numbers. And as such, I have no further questions for the developer. We stand by our numbers. We're confident in what we've calculated, and we feel it's fair and very, very reasonable. CHAIRMAN FIALA: Okay. Then at this point we'll take a ten-minute break, we'll come back, and each side can summarize, and then we'll close the public hearing. (A brief recess was had.) MR. MUDD: Ladies and gentlemen, if you'd please take your seats. Page 160 February 24, 2009 Madam Chair, Commissioners, you have a hot mike. CHAIRMAN FIALA: Very good. Thank you. N ow we will have a summation, first by the appealing party, and then by staff. That would be ten minutes for each. MR. LEWIS: Good afternoon, Commissioners. It's been a long afternoon. We appreciate your time and, Commissioner Coyle, we've tried to accommodate your request. I know it's tedious at times, but we do appreciate your time. It's very important to my client that he feel that he's treated fairly and we have an accurate assessment of the fees that are due. There were a couple questions I'd like to address that came out from staffs report preliminarily, and then I have my concluding remarks. The first topic is this concept of average daily flows versus annual average daily flows. And I'd like to put up for us on the overhead visor language from your impact fee ordinance. And if I can point out to your attention, the language that reads that the LOS expressed as 250 gallons per day. This is from the report, not the ordinance. I understand that. This is how you came up with the ERC calculation, is based on average annual daily flow. In other words, when we look at a one-ERC charge -- there's $3,000 per ERC -- that is derived based on the annual average daily flows. It's not -- it's not disputed. What we're asking you to do is compare apples to apples. If in your calculation, you're deriving the fee based on annual average daily flow, we would like the benefit of looking at annual average daily flow. And in fact, that's exactly how Florida Administrative Code calculates these gallons per -- is based on an annual average basis -- annual average daily flow. In addition, there's other language in the ordinance that was done as well to kind of buttress what we're talking about in terms of how we arrive at the ERC charge. There's an example. This is for wastewater, Page 161 February 24, 2009 and it's dealing -- expressed in annual average daily flow, AADF. For purposes of water, annual average daily flow. Again, this is how you in Collier County determine your impact fees in terms of the dollar that we charge. It's accounted for, annual average. We'd like to be able to be treated that way when we look at our actual flows. In terms of flows, there was discussion about peak versus annual average. And I'd like to, first of all, show you your staffs own exhibit. And you can see there where I highlighted in yellow, they're acknowledging that annual average is 41.6. Now, they've taken, as I've told you, the four peak months. And if we can show the other exhibit. And if you look, I've numbered them. Those are the months that they're looking at. There are months, for example, as recent as February, 30 ERCs, 41, 49. Look at November and October, 16 and 14 ERCs. That's an operating center. I suspect the water (sic) was turned off, but that's 16, 14 ERCs that came through that meter. We're telling you -- I'm sorry -- irrigation was turned off, irrigation was off. That's a center that we've asked -- that is generating those kinds ofERCs. Again, the peak months that are there for the 55.9 are the highest four months. That's not been denied. The irrigation meter, Commissioner Coyle asked a very, very good question, and his question was, does everybody have the opportunity to get an irrigation meter? And my question is, why aren't we getting the irrigation meters when we have a site plan process that allows us to look at things like landscaping and irrigation when we know what's there? The answer to that is, yeah, you can get an irrigation meter, but you need to pay for that meter. You need to pay ERCs in addition to the ERCs that you're charged when you go in for your development based on your use, based on that Florida Administrative Code use in addition. . And so that's -- that's the impediment here, because, again, at Page 162 February 24, 2009 $40,000, when we get a -- when we're at a -- when we're looking at a single meter and we're asked to pay $40,000 based on a 3-inch meter, there's no need for an irrigation meter. When we get a bill for $288,000, it makes sense to get an irrigation meter, and that's exactly what we're trying to do here. Again, we're trying to separate out the irrigation, obtain a meter. Staff and applicant are in agreement, 6.1 ERCs for that irrigation water. We're willing to pay that as part of the agreement. We'd like to defer that and pay that on a three-year deferral, but we'd like to separate out the systems so that we can do that. On the water side, I think you've seen some very strong testimony that the Florida Administrative Code provision that we've been talking about that utility staff used to calculate ERCs on this project, that those numbers are based on estimated flows for project design and for an on-site sewer system. And you've heard testimony from our consultant that these numbers are inflated. And so we think that those numbers are overstated. That's the number your staff used to get the 55.9. You've had testimony that the Florida Administrative Code provision the public utility used to calculate ERCs for this project overstates flows as it's based on a 40-gallon per day seat requirement, for example, for the restaurants. In the past public utilities staff has accepted lower thresholds. You've had testimony that public utility's methodology has a 32.8 percent variance when compared to annual average daily flow for the past 12 months. That has not been disputed. In fact, it's shown on their own slide. You've had testimony that when we establish for purposes of irrigation flows of 216,000 gallons per month, because we have a one-and-a-half acre preserve area on site that we have to irrigate, when those irrigation numbers are removed, you've had evidence that historical data shows that their methodology of 55.4 ERCs or 9 ERCs Page 163 February 24, 2009 for our site, 300, has 128 percent variance. It's that far off when you remove that irrigation number of 216 gallons per month. You've had testimony that annual average daily flow is 42.1 ERCs. And when you look at the past two years, it's 39.4 ERCs, not 54.9 ERCs. This includes both water for Building 300 use and for irrigation use. And when irrigation use is removed, you've had testimony from our consultant that has not been refuted, that historical data supports 21.8 ERCs. That's what we're using, folks, with respect to Building 300 use. On the sewer side, historical data shows 18 ERCs, and Tamiami's calculation at 27 ERCs for Building 300 accounts for vacancies, it allows us to have nine other units. Unit count methodology, one ERC per unit. The data shows 18 ERCs. That's what we're doing on sewer. On the irrigation side, we agree with staff that we'll pay an additional 6.1 ERCs for irrigation, separate out the irrigation. We'll allow that. I think it's very significant that out of the only four months -- and you saw the chart that I showed you -- the last 24 months, only four months exceed 54.9 ERCs, and staff has picked the four consecutive months with the highest monthly ERC averages. Now, you can call that peak, you can call it whatever you want, but those numbers don't lie. And you look at those numbers, and the four highest months, that's what they've picked. There's only one person with something to lose in this petition, that's my client. On the other hand, our consultant is telling you that after irrigation and potable water are separated, that Building 300 will not exceed 27 ERCs for water and sewer flows. If during the next 12 months it turns out that our consultant is wrong, you can come back to Tamiami, and we can -- we'll agree to add that amount to the deferral amount that we're requesting. We're that confident that our numbers are correct. Today we've paid 21.8 ERCs for Building 300. We've proposed Page 164 February 24, 2009 to pay an additional 5.2 water ERCs, 5.2 ERCs, and that includes all the historical data for the historical uses that we would vest, 6.1 ERCs to be paid for irrigation, Tamiami would pay the tapping fee, we'd agree to do that, and a 2- inch meter. Once the system is separated, we could verify our findings. And we appreciate your time. And we would like to get this resolved. Again, we really are trying hard to really get at the real numbers, and we feel very confident that if we separate out the systems, get the irrigation meter in place, that for the retail in the back, for water and sewer, we're not going to exceed 27 ERCs. Thank you for your time. MR. WIDES: Commissioners, Tom Wides, for the record. I think the -- probably the most important thing here, as I've stated to you earlier, that we've gone through these numbers, we've looked at actual usage. You just heard testimony that said we picked the highest four months. I've, in fact, showed you the document that showed you prior periods in 2007 that were at 63.8 ERCs. We tried to be reasonable and look at a reasonable period after all the reconciliations. There was, in fact, lower usage in two months late in 2008. You also heard testimony just now that basically said they turned off the irrigation flow because they knew we were getting close -- my words -- we knew we were getting close to a settlement. Those numbers jumped back up again in November, December, and January. Also, what we've done, we've followed the ordinance and we've tried to still be reasonable with the -- with the development here. We've used actual flows. We've just heard testimony again on irrigation meters, separating the flows, paying later. We've spent a year waiting for them to come in and make an effort to separate the flows. And what we've told the developer's representatives, at this point in time, freeze the facts. The facts are, you've used the water. If you choose to get an irrigation meter later, that will be fine. It will be a Page 165 February 24, 2009 deduction, a credit from the impact fees you've paid. Why make this any more complicated at the last minute? Also, one thing that we also have done, when you saw the prior version of the executive summary, we had a higher number in there, 196. We worked with the developer, we realized the sewer flows that we were charging were high, and we worked with the developer and brought it down to 120,000, the developer's representatives. We've already come down, in essence, $70,000. I believe at this point in time, as I said a few minutes earlier, it's time for us to come to conclusion. We've given you our recommendation of$120,904, and we believe at this point in time all that really remains is to determine the final basis for payment. And we believe -- and I'll ask our attorneys here to step up for just a moment. We believe that the ordinance does not allow for a deferral of impact fees for this type of a development. If I may , Jennifer? MS. WHITE: Jennifer White, assistant county attorney. I'm just going to put the provision from the consolidated impact fee ordinance, provision 47-203, on the overhead for you to read. This is verbatim from the ordinance. It specifically contemplates deferrals being allowed only for charitable organizations and charitable trusts. And I'll place this here for record purposes. So, therefore, it's my opinion that we cannot, under the consolidated impact fee ordinance, enter into an impact deferral agreement for this matter. MR. KLA TZKOW: But there could be a payment plan. MR. MUDD: Yes. MR. KLATZKOW: Is that correct? Okay. MR. MUDD: Yes, there could be a payment plan. MR. WIDES: And we do have some options there if you wish to see those. CHAIRMAN FIALA: Is that the end of your summary? Page 166 February 24, 2009 MR. WIDES: That is the end of my summary, thank you. CHAIRMAN FIALA: Mr. Lewis, did you -- we're going to close the public hearing now. MR. LEWIS: I appreciate that. CHAIRMAN FIALA: Okay. MR. LEWIS: If I may? CHAIRMAN FIALA: Okay. And with that, I will close the public hearing. Thank you. MR. LEWIS: On the deferral question, I just wanted to point out a few provisions. I'm not sure that's the case. CHAIRMAN FIALA: Okay. Give you one minute, please. MR. LEWIS: Okay, sure. 74.202 indicates that unless deferred or waived by written agreement by the county, fees are due at building permit. Here, four-and-a-half years later, we get notice that we didn't pay enough and we owe $288,000. I think you're able to defer. The section she refers to says it needs to be a not-for-profit charity, not just any charity that -- when you're talking about charities, we're dealing with not- for-profit charities with respect to deferrals. I think you're able to do that, and we'd like -- we'd like the ability to defer the fees. CHAIRMAN FIALA: Okay. MR. LEWIS: It would greatly help our client who has spent a lot of time and energy trying to work through this with the county. MS. WHITE: When I came to this conclusion, I did not look specifically at the provision that I gave you in isolation, as Mr. Lewis is doing with the provision that he brought you. I've looked at the aggregate of the ordinance provisions, and there is no provision in the consolidated impact fee ordinance that contemplates a deferral for a developer who is, you know, dealing with whether it's economic hardship, whether it's miscalculation in advance at the time of building permit. In fact, the agreement that we had reached that authorized this Page 167 February 24, 2009 process specifically contemplates that there be -- let me see if I can find the provision for you -- this would be paragraph six of the agreement -- that once this board makes its decision, that there is the opportunity for the developer to enter into a three-year payment plan with statutory interest. So even if you wanted to take what the developer's representative is saying as being true, he's waived that opportunity and entered into the agreement with the county allowing for a three-year payment plan with statutory interest. CHAIRMAN FIALA: Okay. Thank you. And with that, I will close the public hearing. And now, I have a -- Commissioner Henning? COMMISSIONER HENNING: Well, the impact fees have already been waived or deferred, because they should have been collected at building permit. And it's -- obviously this building has been in, at least, in existence for a year. The problem that I have with average daily flow -- and I guess the example of what our staff has provided us -- you can pick and choose what average flows that you want. And, in fact, where it says in our ordinance, annual average daily flows. So you have to take the average of the -- of the year and come out to your calculations. , The -- and I also find that the ordinance is flawed, and it needs to be corrected. The administrative code, 64E-6.008 (sic) does pertain to a sewer system, and it does apply numbers for different uses. I think there's many a flaws in here that needs to be corrected, but I think the appeal is correct in the application of our code and the study of an annual average daily flow, but they -- but they -- the impact fees do need to be paid. So I don't know if I agree with the appellate ( sic) in total, but I agree that the calculations that they did is correct according to our code. CHAIRMAN FIALA: You mean the appealing party, the Page 168 February 24, 2009 calculations the appealing party made? COMMISSIONER HENNING: Correct. CHAIRMAN FIALA: Okay. Commissioner Coyle? COMMISSIONER COYLE: Well, I take an entirely opposite viewpoint here. But I'll preface my statement here saying I have absolutely no intention of putting the petitioner in financial jeopardy because of late collection of the impact fees. I'm very amenable to working out a payment plan. We've made mistakes early on, we admit those, but we as a Board of County Commissioners has an obligation to correct those mistakes. We don't have the option of just waiving it and saying, okay, staff made a mistake and it didn't get all the impact fees, so you get a free ride. We can't do that. As a matter of fact, we have a long history of going back and getting impact fees whenever people were not assessed properly or failed to pay them. So I -- I believe that the staff has been reasonable in their calculations. And if you don't like the four months or so that the staff collected, I went back and did six months, and it comes out to almost exactly the same number. So if you go for an entire year, you probably are down in the 47, 48 range or maybe 49 range. So it's -- I don't know of anything that is more accurate than taking actual flows that can be documented with a water meter. We can play around with interpretations of the ordinance, but the point is, our obligation is to try to reach the most accurate calculation we can reach, and I think the staff, in agreeing to a $120,000 -- $120,940 settlement is good, but I don't want to apply that in a way that places an unreasonable financial burden on the petitioner. I think we should accept whatever payment option is fair, and we would have to protect the county's interest with respect to this. But I think that I would be quite flexible in agreeing to a payment option going forward. Page 169 February 24, 2009 CHAIRMAN FIALA: Commissioner Halas? COMMISSIONER HALAS: I agree with Commissioner Coyle in the area that we need to go, but also that the petitioner, since this has been an ongoing thing, we don't want to jeopardize them not being able to have the business there, or businesses. But I think they need to also pay the interest in regards on that, because we're trying to work with them. And obviously we've worked with them from where the initial costs were. So if it's a three-year program, that's fine. And if no one will make a motion, I make a motion that the people are charged the going rate of what the staff has come up with, and that's $120,940 that is owed, and that it's paid over a three-year program or three-year period and that interest is applied to that, a fair and just interest. That's my motion. COMMISSIONER COYLE: I'll second the motion. CHAIRMAN FIALA: I personally have a problem with applying interest. I think that there have been so many -- so many problems along the way, I don't want to charge them interest. As it is, this is a lot more than they think they can pay. I -- it's just like somebody having their electricity turned off and then you charge them interest when you turn it back on. They couldn't afford it in the first place, and now you're charging them a penalty. So I don't care for the interest part of it. COMMISSIONER HALAS: Well, we've made some -- we've come a long ways from what -- the original impact fee that was supposed to be charged to them. I think that staff and our county attorneys have worked with them over a period of time, and that's-- and today we're here, and I think that everything that I saw that was presented to us by staff because -- that they measured the flows that justifies the impact fee that they need to pay. And I can assure you that it's taken a lot of effort and time to have staff get where we are today, and I'm not sure what the interest rate would be. Page 170 February 24, 2009 MR. KLATZKOW: Well, we can do this two ways. We can just take care of the appeal issue right now -- and we have staffs recommendation -- take a vote on that. COMMISSIONER HALAS: Okay. MR. KLATZKOW: And depending upon the outcome of the vote, then discuss what are the payment options there might be, . assumIng -- COMMISSIONER HALAS: So you need another motion then? MR. KLATZKOW: Well, that's one approach is to bifurcate this into two motions. One is just based on the appeal, and you have a staff recommendation. CHAIRMAN FIALA: Okay. Now, Commissioner Coletta's waiting here to speak. COMMISSIONER COLETTA: Okay. But there's still a motion on the floor and a second? CHAIRMAN FIALA: There is. COMMISSIONER HALAS: There's a motion on the floor. I'll rephrase the motion that we take staffs recommendation, and that is to deny this appeal. CHAIRMAN FIALA: And the second? COMMISSIONER COYLE: I'll second it with the expectation we'll have a follow-on motion that will provide a time payment plan that's reasonable to the petitioner. CHAIRMAN FIALA: Okay. And will that be okay with your motion that it includes that? COMMISSIONER HALAS: Yes. CHAIRMAN FIALA: Okay. COMMISSIONER HALAS: Anything that you want to add -- staff wants to add? MR. WIDES: Commissioner, just to support that position, I have four options for payment plans here. CHAIRMAN FIALA: Okay . We'll discuss that after the vote. Page 171 February 24, 2009 COMMISSIONER COLETTA: And my comments are going to be on the payment plan, what takes place afterwards. So if we could take that vote and I can speak afterwards. CHAIRMAN FIALA: And Commissioner Coyle, are you finished? COMMISSIONER COYLE: I'm okay. CHAIRMAN FIALA: Okay, fine. I have a motion on the floor by Commissioner Halas, to deny the motion per staffs recommendation, and with the provision that we will discuss a payment plan, and a second by Commissioner Coyle. Any further discussions? (No response.) CHAIRMAN FIALA: All those in favor, signify-- COMMISSIONER HALAS: Are we clear on the motion? MR. MUDD: It's denial of the appeal. CHAIRMAN FIALA: Right. COMMISSIONER HALAS: Denial of the appeal, yes. Okay. Go ahead. CHAIRMAN FIALA: Thank you. All those in favor, signify by . saYIng aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed? COMMISSIONER HENNING: Aye. CHAIRMAN FIALA: Okay. That's a 4-1 vote. Commissioner Henning opposed. Now to discuss the payment plan. COMMiSSIONER COLETTA: Yes. I'm still in line. That's where I wanted to go. CHAIRMAN FIALA: Okay, you first. Page 1 72 February 24, 2009 COMMISSIONER COLETTA: Question. Was there fees paid up front by the applicant or the petitioner to be able to cover our staff cost, or is that something that we're carrying? MR. WIDES: Commissioner, there is a $2,500 fee that was paid up front for the alternative impact fee calculation. COMMISSIONER COLETTA: And allowing for everything, did that cover the costs that we incurred? MR. WIDES: Commissioner, I did a -- just a quick number. Today's effort alone, since about nine o'clock this morning, has been over $1,400 of staff time, assuming a very low rate, not to include our consultant who's also here today. So, you know, if you just look at it from that point of view, just today we've burned up probably the whole $2,500. COMMISSIONER COLETTA: Okay. And that tells me something, but it doesn't tell me everything. To prepare for today, what did you spend, what do you think? MR. WIDES: We spent over a year, probably 14 months, four staff members, my personal involvement during a great deal of that time. I'd be estimating somewhere in the range of 20- to $30,000 of staff time and consultant time. COMMISSIONER COLETTA: Okay. That might be guidance to us as we move forward with additional questions to come up with a direction. CHAIRMAN FIALA: Commissioners Coyle? I thought you had your hand on the button. COMMISSIONER COYLE: I've got my hand on the button, I just haven't pressed it yet. I'm afraid it might detonate. You know, just for everybody's benefit here, I was ready to make this a settlement and vote this way six months ago when this thing first came to our attention. We've both wasted a lot of time dealing with that. And I have never felt we should do anything that would harm a Page 1 73 February 24, 2009 businessman from pursuing his business, and we should make this as easy as possible. If the -- if the commissioners feel they have to charge interest, I would suggest it be something like the interest on a three-month treasury bill. MR. KLATZKOW: That's like no interest at all. COMMISSIONER COYLE: That's my point. But you've got some ideas, Tom? MR. WIDES: Yes, Commissioner. Maybe if I could help this along a little bit, if Mr. Mudd would put something up on the visualizer here today. I see four options, or something close to them. Pay the full balance within the 30 days, obvious option. Level monthly payments for three years at an initial interest rate of 1 percent -- and I'll explain why at 1 -- an initial interest rate of 1 percent adjusted annually with a recognition of a lien. This is what was contemplated in the alternative impact fee agreement. The next option which I have presented to the developer's representatives before, before we met here today, was 25 percent, 25 percent, 50 percent payments at the beginning of each year at an initial interest rate adjusted annually of 1 percent with the lien. Last alternative, which is closer to what the developer's representatives had requested, was $500 a month for the three years with a balloon payment at the end of the amount that's left over. Again, 1 percent interest of -- with an annual adjustment. And the only thing I would reserve there -- and, of course, the lien. And the only thing I would reserve there is something else that was contemplated in the alternative impact fee agreement that was approved by both parties, was that staff would monitor the monthly usage for two years to make sure that the impact fees did not exceed what has been paid out. Those are four options that I present to you as ways to think about this. The 1 percent -- if I may? The 1 percent, we've checked with the Page 174 February 24, 2009 finance department, and that approximates very closely our opportunity costs on not having that money today, a reflection of the market. COMMISSIONER COYLE: Okay, then. Let me ask you a question. If you monitor the flows, are you going to reduce the impact fees if the flows are less than anticipated? MR. WIDES: No, sir, that is not our intent. In following the ordinance, we don't reduce impact fees. COMMISSIONER COYLE: It only goes one way, huh? MR. WIDES: It only goes one way. Commissioner, again, if I may -- if I may, remember the usage, the flows that I showed you. COMMISSIONER COYLE: You're right, Tom. I was getting usage and impact fees mixed up in my logic here. So I understand. Thank you very much. And then I would recommend the last alternative, the $500 a month for the balloon payment at the end of three years, initial 1 percent interest adjusted annually with a lien, and staff will monitor the flows for two years to determine if there are additional impact fees. COMMISSIONER COLETTA: I'll second it for discussion, because I do have a -- CHAIRMAN FIALA: Okay. A motion on the floor to select the last of the four options for payment by. Commissioner Coyle and a second by Commissioner Coletta. And you have the floor, Commissioner. COMMISSIONER COLETTA: Thank you, ma'am. Question regarding the monitoring of the flow to see if there's additional impact fees. Are we at this point of no return where possibly we go in there, and staff time and everything be involved over a period of time back and forth on it that we might not even be able to cover our costs with what the additional impact fees would be? Page 175 February 24, 2009 MR. WIDES: Commissioner, there's really two answers to that, and I think they both run the same direction. Number one, we did contemplate this when we -- way back in May of '08, that we would monitor for two years. We agreed on that. The other thing is to monitor our water bill for two years to calculate the ERC. If it's as -- if it's allowed to be as clean as it is, here's what you used, it's up two consecutive months over what you paid for, a bill is due and payable. COMMISSIONER COLETTA: Okay. MR. WIDES: Now, if we get into issues of, you know, can I defer it or can I stretch it out, that's a whole 'nother question. COMMISSIONER COLETTA: Well, we've got a -- hopefully be able to put together an agreement that both sides could fully understand so when that day of reckoning comes, whichever way it goes, there isn't going to be a lot of discussion and it doesn't have to come back before this commission. MR.WIDES: I understand. CHAIRMAN FIALA: Okay. I have a motion on the floor and a second. Commissioner Henning? COMMISSIONER HENNING: Which option is it? CHAIRMAN FIALA: Four, $500 a month with a balloon payment at the end of three years, at initial 1 percent interest adjusted annually with a lien, and staff will monitor monthly flows for two years for possible additional impact fees as contemplated in the alternative impact fee agreement. Yes. MR. KLATZKOW: Just for clarification. When we say adjusted annually, how are we adjusting it? What's your basis? MR. WIDES: We have, from the state comptroller's office, we have a statement on an annual basis of what the interest rate is, the opportunity costs on the money each year, and that's readily available Page 176 February 24, 2009 through the financial department. CHAIRMAN FIALA: Thank you for that clarification, okay. Commissioner Henning? COMMISSIONER HENNING: I wasn't done. You know, looking at what the motion and second is, if I was a business owner and a resident, and that last sentence pretty much states, I'll never get out of this predicament with government; therefore, I have no option but to take -- to appeal this to a higher court, and it's going to cost the ratepayers -- I mean, not ratepayers, in this case it would be impact fees -- more. I mean, this is not -- this is not the end of it. I mean, if you want finality, my opinion, I would remove the last sentence. CHAIRMAN FIALA: So the motion maker and the second? COMMISSIONER COYLE: I'm okay with the way it is. CHAIRMAN FIALA: And you are, too, second? COMMISSIONER HALAS: Second was down there. CHAIRMAN FIALA: Oh. COMMISSIONER COLETTA: I'm the second. Yeah. I mean, considering the fact that there's been a considerable amount of money already spent on this, and like Commissioner Coyle said earlier, this could have been settled a lot sooner, probably with the same results and a lot less legal fees, I can only see this as a fair way to be able to try to recoup some of the money that we've spent of the taxpayers' money. CHAIRMAN FIALA: County Attorney? MR. KLATZKOW: In keeping with Commissioner Henning's concern there may be litigation here, one approach that you do not have to take this would be to condition this payment plan on the fact that this is the finality, that there is no appeal and this should be -- if there be an appeal, that this offer comes off the table, and then whatever a court would rule, the court would rule. There would be no payment plan. Something to consider. You don't have to do that. CHAIRMAN FIALA: We haven't voted. Motion maker's still Page 1 77 February 24, 2009 here. COMMISSIONER COYLE: Well, you know, I think I like it the way it is, and I'll tell you why. Tying the petitioner's hand when we have the opportunity to adjust impact fees, trying to tie their hands with reference to an appeal, I think, is unfair. Ifwe try to adjust impact fees and the petitioner feels they're unreasonable, I think they have a right to pursue it. CHAIRMAN FIALA: Okay. Mr. DeLony, is there something that you wanted to say on the record? MR. DeLONY: For the record, Jim DeLony. I was just asking the board's indulgence for about five minutes here with regard -- that with the petitioner, given advice from Mr. Klatzkow. If I could have that before we take the final vote and ask Mr. Mudd if we could just give us just a minute, Madam Chair. CHAIRMAN FIALA: Surely. MR. DeLONY: Could we do that -- CHAIRMAN FIALA: Yes. MR. DeLONY: -- and adjourn to the hallway? CHAIRMAN FIALA: Okay. MR. DeLONY: Thank you. CHAIRMAN FIALA: You've got five minutes. COMMISSIONER HENNING: We can do another thing? Just table this one. CHAIRMAN FIALA: I don't know that there's anything else we can do in five minutes. MR. MUDD: Well, we're waiting for -- let's do the next item. What do you think? I think we can get to it. I think this is doable. Item #10C WETLAND MITIGATION AND PANTHER HABITAT UNIT OPTION AGREEMENT WITH BARRON COLLIER Page 178 February 24, 2009 COMPANIES AND AUTHORIZE THE CHAIRMAN TO SIGN THE DOCUMENT - APPROVED MR. MUDD: And it's 10C. This item is continued from the February 10, 2009, BCC meeting. It's a recommendation that the Board of County Commissioners approves theW etland .Mitigation and Panther Habitat Unit Option Agreement with the Barron Collier Companies and authorizes the chairman to sign the document, project number 60044. Mr. Norman Feder, your transportation services administrator, will present. COMMISSIONER COYLE: Motion to approve. COMMISSIONER HALAS: Second. CHAIRMAN FIALA: You were right about that, hmm? I have a motion on the floor and second. Commissioner Henning? COMMISSIONER HENNING: To get my question answered, when was the evaluation of mitigation credits performed? MR. FEDER: The evaluation was done as part of the biological opinion for Federal Wildlife Federation. It established a number of required PHU s and wetland credits. COMMISSIONER HENNING: No. You're basing it -- we're 20 percent below what market is. MR. FEDER: 2007, when we started working with Barron Collier and Ave Maria on this. At that time they offered 20 percent below the then-going rates. Actually those rates have gone up higher today for us for the wetlands and the PHUs. So actually it's more than a 20-percent reduction that they're offering, although we are looking to the PHU s, as you note in here, to come from the Starnes property rather than from them. COMMISSIONER HENNING: Thanks for the answer. CHAIRMAN FIALA: Okay. I have a motion on the floor by Page 1 79 February 24, 2009 Commissioner Coy Ie to approve this item, and this is 10C, and a second by Commissioner Halas. Any further discussion? (No response.) CHAIRMAN FIALA: All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) CHAIRMAN FIALA: We could do 14A, too, couldn't we? That's Penny Phillippi. MR. MUDD: I think we can, ma'am. Item #14A COMMUNITY REDEVELOPMENT AGENCY (CRA) APPROVE THE 2008 ANNUAL PERFORMANCE EVALUATION FOR THE IMMOKALEE CRA EXECUTIVE DIRECTOR AND AUTHORIZE A 4.2 PERCENT COST OF LIVING ADJUSTMENT - APPROVED MR. MUDD: Okay. 14A is a recommendation of the Community Redevelopment Agency, CRA, to approve the 2008 annual performance evaluation for the Immokalee CRA executive director and authorize a 4.2 percent COLA adjustment. COMMISSIONER COYLE: Motion to disapprove. COMMISSIONER COLETTA: Motion to approve. CHAIRMAN FIALA: I have a motion -- COMMISSIONER COYLE: I'll second. Page 180 February 24, 2009 CHAIRMAN FIALA: -- on the floor by Commissioner Coletta to approve and a second by Commissioner Coyle. Penny, would you like to say anything on the record? MS. PHILLIPPI: No, I don't. My name is Penny Phillippi. I'm the executive director of the Immokalee CRA, and I just want to say, this has been one of the most interesting years of my entire life in Collier County. And -- COMMISSIONER COYLE: You ain't seen nothing yet. CHAIRMAN FIALA: Penny, I enjoyed reading all of the evaluations from all of your members. They were just glowing. MS. PHILLIPPI: They were. CHAIRMAN FIALA: So it says that you're doing an outstanding job, and we all enjoy working with you, I'll tell you. MS. PHILLIPPI: Thank you very much. CHAIRMAN FIALA: Thank you. And with that, I have a motion on the floor by Commissioner Coletta to approve and a second by Commissioner Coyle. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) MS. PHILLIPPI: Thank you. CHAIRMAN FIALA: Thank you. Well, is there anything else? COMMISSIONER COLETTA: What about lOG? Item #10E Page 181 February 24, 2009 MEMORANDUM OF AGREEMENT BETWEEN THE FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION THROUGH ITS OFFICE OF COASTAL AND AQUATIC MANAGED AREAS (CAMA), AND COLLIER COUNTY, FOR HYDROLOGIC RESTORATION IMPROVEMENTS ON SHELL ISLAND ROAD - APPROVED MR. MUDD: Well, let's do -- let's do 10E, which is the Shell Island Road agreement, and that was a walk-on, of course. It's a recommendation to approve a memorandum of agreement between the Florida Department of Environmental Protection through its Office of Coastal and Aquatic Managed Areas and Collier County for hydraulic restoration improvements on Shell Island Road. This is -- and we can go -- Shell Island Road has been a thorn in this board's side for at least a decade, and it's been a thorn in the side for Rookery Bay, because during the wet season, that limerock road potholes pretty heavily, and they put in for a grant to put in nine culverts and to restore the borrow pit area originally used probably for Shell Island Road in order to get that done. The dilemma that the Rookery Bay folks have is the fact that their grant for this restoration and this -- and this culvert project runs out in the end of March, and they came -- and the -- Gary came to see me in February, kind of late in the process, but he got to the point in time when he was getting -- he was getting to the dead-end where he knew he wasn't going to get it. And he says, is there anything you can do to help us? And then I've engaged our staff in order to do that. Staffs not going to get any money to do this. We're going to be this middle man to try to get this project done. This will save us transportation money in the long run, because there isn't a year that goes by that Norman doesn't have the road crew out there grading or something trying to help them so it becomes a passible road. Page 182 February 24, 2009 So that money will be a savings to us on an annual basis, just to get this fixed. COMMISSIONER HALAS: Motion to approve. COMMISSIONER COYLE: Motion to approve. COMMISSIONER COLETTA: Second. CHAIRMAN FIALA: I have a motion to approve by Commissioner Halas and a second by Commissioner Coy Ie and Coletta. Any discussion? Commissioner Henning? COMMISSIONER HENNING: Is this paving, including paving? MR. MUDD: No. This is culvert and remediation. I believe there's a paving grant that comes forward later, and it will be a pervious surface, but that's another grant, sir. We're working on culverts and restoration of the borrow pit area in this particular contract. CHAIRMAN FIALA: Oh, that's just great. That road is so awful. COMMISSIONER HENNING: I'm not finished. CHAIRMAN FIALA: Oh, I'm sorry. COMMISSIONER HENNING: I would think the environmentalists would be very concerned about paving Shell Island Road. MR. MUDD: Oh. Shell Island Road is paved, per se, it's Shell Island Road, and it's impervious in its state. So I understand your issue, sir. This is a contract for Rookery Bay for the Florida Department of Environmental Protection. CHAIRMAN FIALA: Something they requested. MR. MUDD: Yes, sir, and the road connects with the Conservancy. CHAIRMAN FIALA: Thank you. Any further comments? COMMISSIONER HENNING: Nope. CHAIRMAN FIALA: All those in favor, signify by saying aye. Page 183 February 24, 2009 COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) CHAIRMAN FIALA: Okay. That is a 5-0. All right. It looks like we have -- MR. MUDD: We're back to lOA. CHAIRMAN FIALA: -- Jim DeLony back up at our podium here. MR. KLATZKOW: We made some sausage. MR. DeLONY: Commissioners, I have a recommendation with regard to the payment plan. We agreed earlier on the amount in the previous motion that was made, and now here's a recommendation that I believe has been agreed to by our client here, our customer here, and it is expressed here in this document, by reaching out, that we're going to do the relook. And what this provides him is certainty. What he's got, he's paid for. Now, if there's a change of use down the road or there's areas in your building, sir, that doesn't have any occupant and you come in for permits, we're going to recalculate the impact. But where he is today, we'll essentially accept that as proposing a position, and with this amount, it buys into -- it allows that to proceed and -- with regard to that certainty. Is that in agreement with you, sir? MR. CRIFASI: Yes. There's a couple other items. We need to make sure we have them covered. MR. DeLONY: We'll work it out. But that's essentially it. We leave him where he is, and go forward, you'll apply -- we will apply any impact fees per the current ordinance about any change in use or Page 184 February 24, 2009 additional development associated with Building 300. And we would not do a relook with regard to the situation now. And the payment plan as outlined here is option four, which is the one that appeared to be the one that you all were most favorable -- disposed to support. And that is our recommendation. MR. KLATZKOW: And just for the record, if I could get the developer to say whether or not he agrees with this. MR. MUDD: Sir, on the record, just state your name and your agreement or disagreement. MR. CRIFASI: Jack Crifasi. I do agree. COMMISSIONER COYLE: I'd modify my motion to reflect this change, and it will read a motion that the petitioner will pay $500 a month with a balloon payment at the end of three years, an initial 1 percent interest adjusted annually with a lien. CHAIRMAN FIALA: And the second? COMMISSIONER COLETTA: My motion agrees. CHAIRMAN FIALA: Okay, fine. COMMISSIONER COLETTA: My second. CHAIRMAN FIALA: Motion on the floor has been -- what do they call it, adjusted -- MR. MUDD: Modified. CHAIRMAN FIALA: -- amended, and the second has agreed. Any further discussion? (No response.) CHAIRMAN FIALA: All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) Page 185 February 24, 2009 COMMISSIONER HENNING: With that, I have a question about what takes place now. The lien will be signed by the chairperson. Will that come -- that lien come back to the Board of Commissioners for ratification? MR. DeLONY: Counselor, with regard to disposition of lien -- COMMISSIONER HENNING: Will the lien document come back to the Board of Commissioners or -- MR. KLA TZKOW: There will be a resolution that comes back to you outlining this, as well as a lien document. COMMISSIONER HENNING: Thank you. MR. DeLONY: Okay. Anything else? CHAIRMAN FIALA: No, sir, that's plenty. MR. DeLONY: Thank you. Thank you very much. CHAIRMAN FIALA: Thank you. Item #12A RESOLUTION 2009-46: PETITION CU-2005-AR-8748; ALLOWING A CONDITIONAL USE IN THE RURAL AGRICUL TURAL (A) ZONING DISTRICT TO EXCA V ATE 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 2.03.01.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 - MOTION TO APPROVE THE 12 CONDITIONS IN THE ORIGINAL CONDITIONAL USE PETITION - VOTE COUNT 3/2 - NO SUPERMAJORITY; MOTION TO RECONSIDER THE MOTION - APPROVED; MOTION TO APPROVE THE PETITION REQUIRING ALL FUNDS FROM Page 186 February 24, 2009 THE SALE OF THE FILL BE HELD ESCROW AND INCLUDING THE 12 CONDITIONS IN THE ORIGINAL CONDITIONAL USE PETITION - ADOPTED MR. MUDD: Commissioner, that brings us to our time-certain item at three p.m., and it is basically -- used to be 16K3, which is now 12A. It requires that ex parte disclosure be provided by commission members. It's a recommendation to approve petition for conditional use 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 2.03.01.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. This item was moved at Commissioner Coletta's, Fiala's, and Coyle's request. You have to do ex parte, ma'am. CHAIRMAN FIALA: Okay, thank you. And we will start ex parte with Commissioner Coyle. COMMISSIONER COYLE: Madam Chair, since this item was heard by the Board of County Commissioners before, of course we've all talked about this and we've received -- I've received correspondence, emails that were revealed at that point in time. Since that point, I have only received some emails concerning this particular item. CHAIRMAN FIALA: Commission Coyle? COMMISSIONER COYLE: That's Halas. CHAIRMAN FIALA: Oh, yeah. I'm looking at you and saying Coyle. It's getting late, I guess. COMMISSIONER HALAS: Yes. We've had this up for discussion once before, and I've had meetings and emails and I met Page 187 February 24, 2009 with Rich Y ovanovich on October the 2nd, 2007, and I don't recall any emails in the present in regards to this item. CHAIRMAN FIALA: Okay. And we have six speakers on this. Commissioner Coletta? COMMISSIONER COLETTA: Yes, thank you. Yes, I have had meetings, correspondence, emails, phone calls. Of course, this goes back into ancient history. And we've got a number of residents from the area that are interacting today. CHAIRMAN FIALA: Okay. Commissioner Henning? COMMISSIONER HENNING: I've had only one correspondence with this settlement agreement, and that's from Nancy Payton. CHAIRMAN FIALA: Okay. And I have spoken to staff. Of course, we heard this before. I don't remember if I've met with you, Rich. I didn't think so. But I did get an email from Nancy Payton as well, and I've received -- I think I've received a couple other emails, and I have them in my folder for public display. And with that, would we swear in anybody who wants to speak. We have six speakers signed up. (The speakers were duly sworn and indicated in the affirmative.) CHAIRMAN FIALA: And with that, Rich, would you like to begin, or should we have -- yeah, why don't you just begin. MR. YOV ANOVICH: Let me, if I can, and I'm sure the county attorney will jump in, since it's his agenda item. As you know, there was originally a conditional use application request for the removal of dirt related to a fish farm. It was denied. We took an appeal to the Circuit Court, and the Circuit Court issued an order essentially saying that there was no competent substantial evidence to support the denial, and that's what the agenda item today is, is to approve the conditional use. I think there's some confusion because there were a couple of items that were not included as backup in your agenda item, and I Page 188 February 24, 2009 have copies for each of the commissioners as well as -- and I provided Nancy Payton a copy. When I spoke to her, she said her concern was, okay, Rich, we understand what the Court said, but what is it that's being approved today? And it was the conditional use and the original resolution which -- I don't know if the best way to do this is to just give you each a copy. And there's more than enough. And these are from the agenda that -- of that day, and there was condition -- there was a resolution for approval, and attached to that was an Exhibit D that had 11 conditions for approval, and I think Ms. Payton wanted to confirm that those 11 conditions were part of the action that was being taken today. And also, if you will recall, I committed -- there was an agreement between the residents and the owner of the property. There was an agreement that I committed during that hearing would also become a condition of the approval, and I've provided a copy of that to you all as well. So should you -- should you agree with the recommendation of your staff, the conditional use would be approved with those 11 conditions plus the 12th condition, which would be the agreement that was reached with the neighbors regarding the access to and from the site while they were removing the dirt. We're hoping at this point that the commission will approve the conditional use. Mr. Fawzy would like to go forward with his fish farm. If there's any question that he really wants to do a fish farm in today's economy, I think that that's been resolved. There was some concern that perhaps he was really an earth mine disguised as a fish farm because of the price of fill at the time. I can assure you at the price of fill today that he is really a fish farm and not a fill farm, as people might have been concerned. So I would hope at this point we can approve the conditional use. I hope I've clarified the record as to what the conditions related to that Page 189 February 24, 2009 are, and I think that summarizes the agenda item. And Mr. Klatzkow, if I've missed anything, I'm sure you'll correct me. MR. KLATZKOW: I would like to hear the speakers before I say anything. CHAIRMAN FIALA: Yes, I would, too. So will you call them, please. MS. FILSON: The first speaker's Rich. MR. YOV ANOVICH: I wasn't sure how it was going to go today, so I signed up in. an abundance of caution. MS. FILSON: Okay. Second speaker is Timothy Nance. He'll be followed by Greg Bower. MR. NANCE: Good afternoon, Commissioners. My name is Tim Nance. I'm a member of the -- of the Frangipani ago community civic association. When Mr. Fawzy first proposed to dig his fish farm, he spent quite a bit of time talking with the residents of the area. He met with our little local civic association and many of the residents on Dove's (sic) Tree Street. And the main concern was the use of Dove Tree Street as it is a privately owned and maintained road and the only access and egress for all the residents and small businesses in that area. Subsequent to talking over many months, Mr. Fawzy sent us a letter of understanding. Mr. Bob Matherly can give you a copy of that. I think Rich may also have given it to you. I'm not certain about that. But it outlines his letter of understanding with the Dove's Tree Street community residents over how he would handle maintaining the road and several of the basic agreements, whether he was going to maintain Dove Tree Street in a safe and passible condition. He was going to have some transport procedures to regulate truck speed, control dust, and reasonable hours of operation. He agreed to time periods when he wouldn't have truck traffic Page 190 February 24, 2009 when children were going to and from the schools, and basically would have a contact system with the residents to make sure that the road was handled properly. Subsequently, the civic association sent a letter of endorsement to the county commission, which I believe was delivered to you under the earlier activity. Basically, if these provisions are followed by Mr. Fawzy, the community residents on Dove Tree Street think that a fish farm would be a good addition to our neighborhood. It's very compatible with the other nurseries, small businesses, landscaping companies, et cetera. And we're looking forward to contacting Mr. Fawzy when he begins and making sure that these provisions are followed. We would hope that you would adopt these provisions as part of the conditional use. Thank you very much. MS. FILSON: Next speaker is Greg Bower. He'll be followed by J ames Matherly. MR. BOWER: Good afternoon, again. I was here last time we did this. I was president of the Frangipani Association and was part of this letter that we submitted to you and agreed to. I heard some things mentioned after I sat back down and I had a very hard time understanding. Number one was regarding storks up in the Corkscrew area and how this pond was going to affect them. I have a 150-by-a-100-foot pond, and the only thing that has shown up that might interest the environmental people is a bald eagle that appears to seem to be making a home on my property, which we look forward to. And another one relating to the type of subsoil. And I think all they need to do is look at the pit, which is less than a mile away, to find out what type of subsoil exists in that general area, and -- or they can come out to my house and look at the rocks that's left over from the digging. But I think this is a win-win situation for our community. And as they mention, and as you all are, I'm sure, very well Page 191 February 24, 2009 aware, there's not a lot of demand for fill right now. And so it's going to be sitting for a while before somebody's making money off of it. And I don't think that that was the original intent. And with that, I thank you, and I hope that you all agree to this. Thank you. MS. FILSON: James Matherly. He'll be followed by Nancy Payton. MR. MATHERLY: Hi. James Matherly, 1220 Dove Tree Street. My only concern is the road. I've worked on that road for the past ten years, along with a few other neighbors, put a lot of money, a lot of time in it, cleaned it up. It won't support trucks. It barely supports cars. It's mostly spoil from the banks of our canals, wherever we could get it at the time they were removing it. Little -- very little base rock unit. We grade it. We grade it with anything we can get ahold of, tractors, backhoes, loaders. These people want to run up and down the road, that's fine. We just have a problem getting in and out the way it is. We just graded it a couple weeks ago. We used Jack Queens out of Immokalee to grade it. It cost us $500. We do this whenever we can scrape up the money, which is very hard to come by right now. The amount of material it's going to take to stabilize the road -- and a stabilizer is just basically sand and usually lime dust, which, if it's not watered all the time, it just softens up like talcum powder. It makes a mess. It would need actually some gravel put on it. And I don't know exactly how much. They're offering 2,000 cubic yards. That's about 20 dump-truck loads. I don't know. It's just a big concern for us out there how we're going to get in and out after the trucks come up and down the road, even though they're agreeing to it. We just hope that it does get maintained. And if we have any problems, who do we call? Mr. Coletta. That's who we'll call. COMMISSIONER COLETTA: That's right. Page 192 February 24, 2009 MR. MA THERL Y: Thank you. MS. FILSON: Next speaker is Nancy Payton. She'll be followed by Brad Cornell. MS. PAYTON: Nancy Payton representing the Florida Wildlife Federation. In an ideal world, we'd like you to appeal this, but I'm going to spend my time talking about the specifics of the conditional use permit, specifically three of the stipulations. Number seven talks about the wildlife agencies, and we want to make sure that, indeed, it's more than talking, that, indeed, it will be consultation and that agencies will have to sign off, provide a letter or appropriate documentation that it is acceptable to move ahead based on Fish and Wildlife Service and the Army Corps of Engineers. On number nine it says, copies of all required agency permits. Fish and Wildlife Service doesn't issue permits. That's done through the Army Corps of Engineers. If there are no wetland impacts, there will be no federal permitting nexus; therefore, it would have to be a separate consultation under Section 10 under the Endangered Species Act, and I'm just concerned that there's not this loophole that exists that Mr. Fawzy will not consult with the Fish and Wildlife Service and produce documentation to the county that he has met their obligations. And lastly, under the wildlife crossings issues, if that is a factor in the road, that Fish and Wildlife Service and the Florida Wildlife Commission should be consulted about the design of the crossings and the appropriate fencing. I don't know if there is staff currently that would have that expertise, so I would seek that clarification. Question: Can the conditional use be amended? Some additional stipulations and time frame. For instance, Jesse Hardy had three years to fully establish his aquaculture operation, so I'm suggesting three years from approval, and that includes the 18 months to haul the dirt off. And if it's not done within that time frame, then the land has to be restored. Page 193 February 24, 2009 And most importantly, I would urge you to have staff and interested stakeholders pursue LDC standards to regulate aquaculture in all sending lands, not just North Belle Meade, but throughout the rural ~ending lands and also the rural land steward sending lands. And in fact, the RLSA committee, in their report which you will be reviewing next month, has a recommendation to do just this because they identified this issue of aquaculture and sending lands is to be somewhat incompatible, is there a way that they can be compatible and pursue that. So that is a very important goal for us in this discussion, that looking forward we establish some standards on how aquaculture is conducted, if it is allowed to be conducted, in sending lands. Thank you. MS. FILSON: And your final speaker is Brad Cornell. MR. CORNELL: Good afternoon, Commissioners. I'm Brad Cornell and I'm here on behalf of Collier County Audubon Society. We believe that this conflicts with the rural fringe mixed use district, the North Belle Meade overlay in that district and those Growth Management Plan policies, which were established -- which established this area as a sending area and protected it for its listed species and natural resource value. That was supported by a three-year rural study, as you all know, and provided substantial evidence in support of that designation. The county, the Department of Community Affairs, Collier County Audubon Society, and the Florida Wildlife Federation subsequently defended those policies against a Chapter 120 challenge in 2003, and we successfully defended those. We agree with the county attorney's opinion that excavating and removing 300,000 cubic yards of earth is mining and that that is prohibited in sending lands, regardless of the aquacultural use that would come afterwards. The county has a legal obligation to not issue development Page 194 February 24, 2009 approvals in conflict with federal listed species protection, such as Endangered Species Act. This site is mapped as primary panther habitat, and this was a significant part of the reason for its county designation as sending lands. The county should request Section 10 consultation from the U.S. Fish and Wildlife Service for the Florida panther and any other species that would be involved. That's what Nancy Payton was referring to just before me. Collier County Audubon Society recommends denial to be reaffirmed based on substantial evidence which does support this property's sending designation in the Future Land Use Map. It is clear the Circuit Court missed this overriding question and, therefore, Collier County Audubon Society also recommends appeal of the Circuit Court decision. Thank you. CHAIRMAN FIALA: Okay. Commissioner Coletta? COMMISSIONER COLETTA: Yes, thank you. Mr. Y ovanovich, I know where the people from Dove Tree are coming from. This has been an issue going way back in ancient times regarding the road and the lack of service to it. You may -- they made some pretty bold statements in here and promises of how the road will be maintained. The problem is, is what kinds of, what kind of leverage is there for us to make sure this takes place? MR. YOVANOVICH: Well, first of all, as I suggested -- and I handed out the same document, I think, that Mr. Nance handed out. I suggested that this document, which is the agreement with the residents, become condition number 12 of the conditional use. So now it would be that -- you would not only have the agreement between the residents and Mr. Fawzy, but you would have it as a condition of the conditional use, and you would have the county's ability to also enforce the commitments that are in this agreement else you terminate the conditional use or you find him in Page 195 February 24, 2009 violation of the conditional use. So there are enforcement mechanisms to back up -- back up what was committed to. COMMISSIONER COLETTA: Well, I want to concentrate a little bit more on the road, too. Nick, can you help me on this? I hope you had a chance to read this agenda and what they're promising to do as far as the road itself. Now, the road is of primary importance. I mean, the only reason the residents would ever agree to it in this area would be that they would benefit from a road surface that would be stable for way into the future. What's missing from this or what's in this that -- does it meet the needs for what this area's going to need or -- MR. CASALANGUIDA: Sure. COMMISSIONER COLETTA: -- does this fall short? MR. CASALANGUIDA: For the record, Nick Casalanguida with transportation. Our initial stipulation is that they grade and maintain the roads. The fact that they're agreeing to do additional work on the roads and provide 2,000 cubic yards, if the residents are happy, that was above what our recommendation was. So the fact that they've coordinated with the residents, the residents seem to support it, and if you make that a condition of the conditional use, as Mr. Y ovanovich has stated, I'm pretty comfortable that they've gone above and beyond what the county's comments were when we originally reviewed this. COMMISSIONER COLETTA: Okay. And Rich, I noticed the Planning Commission was evenly divided on this, 4-4 split. I -- what was the bone of contention with them? Was that the environmental issue? MR. YOV ANOVICH: The issue in my mind and -- and I still believe this -- is that there was confusion as to what was actually being considered. I -- we were requesting a conditional use to remove dirt. The whole debate in front of the Planning Commission and I Page 196 February 24, 2009 think in front of the Board of County Commissioners was, can we even have a fish farm. So that's why I think there was a deadlock. There was so much discussion as to, you can even have a fish farm out there under the current rules. And so that's why I think it was split. Some of them said you shouldn't be allowed to have the fish farm and some of them said, yes, you should. So that's why I think there was the even debate. COMMISSIONER COLETTA: Okay. Now, what you're hearing and what brought this to an end before was the environmental concern. And you heard Nancy Payton's recommendation for different steps that should be taken if this was to go forward. Could you be able to incorporate most, if not all of those recommendations? MR. YOV ANOVICH: I think that my client should be required to follow the law, and we have agreed to follow the law regarding environmental permit. My client -- we came to this board back in October of 2007 with those 11 conditions, which included several environmental conditions, and we can live with those 11 conditions, plus the 12th one being the agreement. To require my client to now enter into a new permitting process through this Section 10, you're adding a couple more years of permitting. He's already been delayed from moving forward. We're happy to do what we're required to do, which is get consultation, and we'll follow that process. We'll follow the environmental permitting rules that are applicable to the process. COMMISSIONER COLETTA: Thank you, Mr. Y ovanovich. CHAIRMAN FIALA: I'm sorry. Commissioner Halas? COMMISSIONER HALAS: I've got some real concerns here. As I said, when this came before the Board of County Commissioners, did research on fish farms; and fish farms in this nature, this size, is really not profitable. My concern is, if he's really avidly involved in this idea of a fish Page 197 February 24, 2009 farm, when's he plan to start excavating? MR. YOV ANOVICH: When he -- you know, he doesn't have the right to go forward. He's got to get a Site Development Plan. He can't do any of that -- COMMISSIONER HALAS: So it would be five years from now, right? MR. YOV ANOVICH: No, sir. He can't move forward on doing any of that until the conditional use is approved. COMMISSIONER HALAS: But this could be five years from now? MR. YOV ANOVICH: Or it could be as soon as possible. He's got to hire an engineer to do the engin- -- the Site Development Plan work. And then once he does that, he can then start -- he gets that through the county's process, he can then begin the excavation process. The county's Site Development Plan process takes six to nine months, and then he's got to do the design work before he can submit that. COMMISSIONER HALAS: From what I read, that the -- what the county attorney has suggested, it is the opinion of the county attorney that the Court completely missed the larger issue of this case, which is the proposed use, self violate (sic) -- 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 further goes on to say, 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 chance in circumstances, since the matter was heard and the impact pursuing an appeal would have upon Mr. Fawzy. Page 198 February 24, 2009 And then it says, the approval of this petition will have no further financial fiscal impact to the county. It is the direction of the BZA that the county attorney commence an appeal, and all work will be done in-house, and the fiscal impact to the county will be limited to court filing fees. So my feeling is that there's a possibility that the judge misinterpreted exactly what the intent is here and -- in regards to the area where this supposedly (sic) fish farm is located. CHAIRMAN FIALA: Yes, county attorney? MR. KLATZKOW: Yes. And just so I'm not -- to get the full understanding of this. I think Judge Hayes missed the larger issue. And yes, I think we can appeal this, and yes, I think we have a fair chance of prevailing in this. The question is, if you want to eliminate this issue forever, the way to do it is not through an appeal, which only affects Mr. Fawzy and this 15 acres. The way to do that is to direct staff to come back either with a change in the LDC or the Compo Plan that does -- eliminates this issue for all of the county's environmentally sensitive areas. And by legislative act, we end this issue so that, yes, I can go through the appellate process, okay, and that's going to be a devastating effect on Mr. Fawzy, all right, or we can just end the issue right now by directing staff to come back with a legislative solution. CHAIRMAN FIALA: Which I would like to see done, by the way. Next we have Commissioner Henning. COMMISSIONER HENNING: I'm going to make a motion to approve and include the 12 conditions of the original conditional use petition, and I'd like to put this into the record so there's no mistake of what the 12 conditions are. MR. YOV ANOVICH: That's the 12th condition right there, Commissioner? COMMISSIONER HENNING: It is. It's the Frangipani Page 199 February 24, 2009 Community Civic Association Incorporated. MR. YOV ANOVICH: Right. COMMISSIONER HENNING: And you just put the cover sheet MR. YOV ANOVICH: I think the agreement should be right behind it. COMMISSIONER HENNING: Right. MR. YOV ANOVICH: That would be condition number 12, and we reference this as an exhibit, or however you want to do it. I understand. CHAIRMAN FIALA: Commissioner Henning, does this -- do these 12 -- I'm sorry, but I didn't read it. Do they include grading the road and keeping it -- keeping it drivable all through this procedure? COMMISSIONER HENNING: Correct. CHAIRMAN FIALA: Okay. Good, thank you. That's all? COMMISSIONER HENNING: That's it. CHAIRMAN FIALA: Commissioner Coyle? COMMISSIONER COLETTA: I'm sorry. He's got a motion on the floor. CHAIRMAN FIALA: Oh, wait a minute. He has a motion to the floor. COMMISSIONER COLETTA: Yeah, and I'll be -- I'll be happy to second it, see where we can go with it. CHAIRMAN FIALA: Okay, thank you, Commissioner Coletta. Commissioner Coyle? COMMISSIONER COYLE: My problem was in the past, and still is now, what happens after we exca- -- Mr. Fawzy excavates this area and the fish farm is not feasible or it's not profitable and it's deserted? How can we make sure it's restored? Is there any opportunity for negotiation about protections to do that, the posting of some bond to make sure that we can restore the property if, in fact, the plans for a fish farm are scrapped? Page 200 February 24, 2009 We've probably got several years before a fish farm will become operational at that site. I, quite frankly, like the idea of -- I think if we can attract something like this here and it's successful, it's going to be beneficial to Collier County, but I can't ignore the fact that we've had people in the past attempt the same kind of thing and it turned out to be a hole in the ground. So I need to resolve that problem somehow. And I don't want to be unfair, but I can't support the current motion for that reason. We have no protection whatsoever, and we could very well be left with a big hole in the ground. MR. YOV ANOVICH: Commissioner, I don't know how to give you -- we have to go through a Site Development Plan process and the lake has to be properly constructed. It will be properly constructed. At the end of the day, let's just say the fish farm doesn't work. It will serve as a man-made lake, if you will. There will be some value from a water management standpoint because it will hold some water when there's storms, but it will function as if that lake had been there forever. There'll be fish in that lake, it will attract wildlife, wildlife will use that lake. So I think there will be value to it even if it turns out to just be a lake that, you know, turned out to not work as a fish farm. I mean, because you'll have -- we'll have had to get this lake properly permitted through the SDP process. We're in an unfortunate situation that had -- you know, had we not lost two years, I might be able to offer you something in the way of a bond or something like that. But we're two years further down the road. You know, Mr. Fawzy has had two more years of interest carrying on the land and lost opportunities, not to mention the -- you know, the -- it may even cost him money now to remove the fill in order to get into further operation. I'd love to get there for you, but I think worst-scenario, you're going to have a very nice man-made lake that will serve a function, Page 201 February 24, 2009 you know, for the environment, and it will be a positive thing even if it fails. But I don't think I could post a bond to bring those 300,000 cubic yards of dirt back. Is there something short of that that -- you know, that would help you get there? COMMISSIONER COYLE: I can't think of anything right now. We've got a motion on the -- on the table, so see where it goes. CHAIRMAN FIALA: Motion is on the floor, and the second. The motion does not state that we would like the county attorney to put together some type of an ordinance or LDC amendment. COMMISSIONER HALAS: That's separate. CHAIRMAN FIALA: That would be a separate one? Okay. Also it doesn't say anything at all -- but I was just handed this thing, so I'm afraid I didn't look through it. One of the things I'm worried about is our aquifer is right there if he's just seeking a fish farm. Mines, they have to watch how deep they dig and what they do, but there's -- is there any protection that he's not going to permeate the aquifer and then contaminate the water? MR. YOV ANOVICH: We still have to go through the county site development review process to get the permits. And I believe that there are -- those are issues that are reviewed as part of the Site Development Plan process. Plus we're required to follow the best management practices. I'm trying not to reargue the hearing we had a couple of years ago, but there are best management practices in place for the digging of these lakes and making sure that they're operated properly. And, you know, we did go through -- we went through the conditional use process, we went through -- at least one judge in an appellate capacity agreed with us. If you kick it up to the next level, the burden is even more difficult for the county to overcome. You may win, you may lose. We've already won at one level. Mr. Fawzy truly wants to be a fish farmer. I think he's shown you that by staying in this process as long as he has. Page 202 February 24, 2009 I would hope that since the community around him has said this is an acceptable -- an acceptable practice in their community and that the true fix is, as your county attorney is saying, change your code. A 15 -acre fish farm in this vast area that's known as the sending areas is not going to hurt. It's not going to hurt. The only one that will be hurt if this isn't resolved today, will be Mr. Fawzy. And I hope we can get past that because, you know, he wants to be a business, and I think it can prove to be a very good business for Collier County. CHAIRMAN FIALA: Okay. Commissioner Coletta? COMMISSIONER COLETTA: Yeah. I just want to let you know, I don't see a problem with the fish farm as far as what the waste will be in it. If it ever got to a toxic level, the whole operation would come to an end. They can't dig it too deep, because if they do, there's no way they can get oxygen in down much below 40 feet, so it has to be dug in a way that's going to be self-sustaining to the fish that are going to run through it. And if this does pass, I'd be more than willing to support the next motion which wants to limit this to the last one that would happen within the area, coming up with a methodology for fish farms that they be aboveground and whatever. MR. KLATZKOW: He's limited to how far he's going to dig anyway because he's asking for 3,000 cubic yards offill over 15 acres. So somewhere in the record there's a limitation how deep they're . gOIng. MR. YOV ANOVICH: There was. And I want to say it's around 20 feet was the number. I'd have to go back and read the minutes again, but I want to say it's about that, was the depth. COMMISSIONER COLETTA: But you can't in any way breach the aquifer because you're going to have -- who is it, water management monitoring everything you do through the whole process. Page 203 February 24, 2009 MR. YOV ANOVICH: I believe you're correct, Commissioner Coletta. CHAIRMAN FIALA: Okay. I have a motion on the floor. Did you make that motion, Commissioner Coletta? COMMISSIONER COLETTA: No, I seconded it. CHAIRMAN FIALA: Who made the motion? COMMISSIONER COLETTA: Commissioner Henning made it. CHAIRMAN FIALA: Okay. I have a motion on the floor by Commissioner Henning to approve it with the 12 stipulations that were written and submitted to us, and a second by Commissioner Coletta. Any further discussion on this item? (No response.) CHAIRMAN FIALA: All those in favor, signify by saying aye. Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: So that's a 3-2, and it fails. MR. YOV ANOVICH: Settlement. CHAIRMAN FIALA: Does that have to be a supermajority? MR. KLA TZKOW: No, it's not a settlement. This is not a settlement. The choice is either to approve this or I go on appeal. And so at this point in time, unless there's a motion for a reconsideration, I'm going on appeal. MR. YOV ANOVICH: I don't think there's been a motion to do an appeal. There's been a motion -- MR. KLATZKOW: There's no alternative. MR. YOV ANOVICH: You don't have to appeal. MR. KLATZKOW: Yeah, I do. MR. YOV ANOVICH: You can lose -- you can lose the time Page 204 February 24, 2009 frame to appeal. COMMISSIONER HENNING: May I say something, Madam Chair? CHAIRMAN FIALA: Sure. COMMISSIONER HENNING: At this point if the dissenting commissioners on settlement is not going to change their mind, I think that the county attorney should call a closed-door session so we can cost -- so we can talk about the cost of the litigation. MR. KLATZKOW: If you want to talk about it, I can do that. CHAIRMAN FIALA: Okay. Yes, Commissioner Coyle? COMMISSIONER COYLE: As I understood the county attorney, he says he's got to appeal because he feels that we'll be in violation of the Growth Management Plan if we let it go forward. Now, again, I would like to vote in favor of this project if we can find some way to protect the interests of the county and the environment so that we're not left with a big earth mine out there on that 15 acres of property. MR. YOV ANOVICH: Remember -- and let me -- maybe we should -- maybe we should do this. Remember I offered originally all the proceeds from -- that he's paid for the removal of the dirt would be placed in escrow and it would be within the use to pay to construct the earth -- to construct the fish farm. Once the fish farm is there and operating, you will see it has been properly constructed. So the worst case you have is a nice lake at the end of the day, which I would hope would not be an environmental hazard at the end of the day. So if we put the proceeds into the escrow account and then we just use it to pay for the construction of the fish farm, then you know, Commissioner Coyle, at that point you're not going to have this -- you know, you won't have a completed lake that will serve for some natural function at the end of the day should the fish farm go out of existence, and then you know he's not running off with the money related to the fill. Page 205 February 24, 2009 Does that -- does that help with providing adequate assurance that you come up with -- COMMISSIONER COYLE: I still need for the county attorney to get over the issue of the Growth Management Plan. MR. KLATZKOW: I have a court order on this. My opinion is that the judge missed the issue, but I may have appellate judges who disagree with that. Judge Hayes could be absolutely right in his decision at the end of the day. So that as we stand now in the litigation, there is no violation of the Growth Management Plan by going forward on this. This is on court order. COMMISSIONER COYLE: So the Court gives us the authority to do whatever it is necessary? MR. KLATZKOW: Absolutely. COMMISSIONER COYLE: So we're not going to be charged with violating the Growth Management Plan? MR. KLATZKOW: No, sir. You have a court order on this. COMMISSIONER COYLE: Then let me ask Nancy Payton to come up here. Do you see any environmental -- irreparable environmental damage if we proceed as Mr. Y ovanovich has suggested? MS. PAYTON: Well, I'm not a hydrologist. I cannot weigh in there, but I can say this, that holes in the ground are not natural. They're -- they are not a natural phenomena, lakes, in Southwest Florida -- COMMISSIONER COYLE: Sink holes are natural. MS. PAYTON: -- in Southwest Florida. We have Lake Trafford, that's about it. All the rest of the lakes you see are a borrow pit, and there are environmental issues that are associated with them. I'm -- that's not my area of having a lot of knowledge. But having a hole in the ground in the middle of a sending land is not a good thing. If you want a hole in the ground, you should be in a receiving Page 206 February 24, 2009 area because there will be fewer, if any, environmental issues in that area as opposed to the sending land where we're trying to preserve the environmental values. COMMISSIONER COYLE: And under the current plans, are fish farms not permitted in sending lands? MR. KLATZKOW: Pursuant to Judge Hayes at this point in time, fish farms are permitted in sending lands. I would have to convince an appellate court otherwise. COMMISSIONER COYLE: Okay. So it seems to me that our-- our responsibility is to minimize the environmental impact to the extent that we can do so? MS. PAYTON: Yes. COMMISSIONER COYLE: And I guess if we approve the creation of a fish farm and it becomes a fish farm, then it is exactly what Judge Hayes wanted us to do, right, to approve a fish farm? MR. KLATZKOW: Correct. COMMISSIONER COYLE: If it turns out to be a bust, we're left with a hole in the ground that shouldn't be there. MR. YOV ANOVICH: And that's my proposal, let's put the money in escrow and make sure we're truly building a fish farm and not a hole in the ground to take dirt out. COMMISSIONER COYLE: And how would we go about accounting for all this, County Attorney? MR. KLATZKOW: We could set up an escrow account. That's-- MR. YOV ANOVICH: We've got a boilerplate between us that we've used. MR. KLATZKOW: We've done other projects where we've come up with escrow accounts. COMMISSIONER COYLE: I'll vote in favor of it under those circumstances, because otherwise we're -- MR. MUDD: Sir, are you making a motion to reconsider? COMMISSIONER COYLE: I'm making a motion to reconsider. Page 207 February 24, 2009 CHAIRMAN FIALA: And do I hear a second on that motion? COMMISSIONER HENNING: Well, it's -- the person who voted in the majority can reconsider any item? MR. KLATZKOW: Commissioner Coyle is one of the two people who voted -- who did not vote for it can vote for this reconsideration. COMMISSIONER HENNING: Okay. He can -- MR. KLATZKOW: He can. COMMISSIONER HENNING: -- make a motion? MR. KLATZKOW: Yes. CHAIRMAN FIALA: Okay. Is that your second? COMMISSIONER HENNING: And I'll second -- I'll second your motion. CHAIRMAN FIALA: Okay. And I have a motion and a second -- I'll call on you in a second. Motion and a second to reconsider. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) CHAIRMAN FIALA: Very good. That is a 5-0. Now, Commissioner Henning? COMMISSIONER HENNING: What? CHAIRMAN FIALA: You have your button on. COMMISSIONER COLETTA: That's my button. COMMISSIONER HENNING: That's his button. CHAIRMAN FIALA: No, it isn't. I can read. COMMISSIONER COYLE: Since when? CHAIRMAN FIALA: I learned this morning. Page 208 February 24, 2009 Okay. Now, would you like to make that motion, sir? COMMISSIONER COYLE: Yes. And I would like to explain, I think it's a lesser of two evils. I'm not convinced that we have a sure winner by appealing it, and if we pass up the opportunity to negotiate this settlement, then we won't have any options whatsoever to protect ourselves. So I would make a motion that we approve this petition and that we require that all of the funds received from the sale or disposal of fill from this site will be placed in escrow and will be used specifically for the purpose of building the fish farm itself. And if no fish farm is built, those funds will be used to restore the site to the extent possible. CHAIRMAN FIALA: Okay. Do I have a second? MR. YOV ANOVICH: Now, Mr. Coyle, you volunteered the last time at this hearing to be the escrow agent. COMMISSIONER COYLE: Yes. MR. YOV ANOVICH: You did say that? COMMISSIONER COYLE: I will handle the money. I'll be glad to do that. CHAIRMAN FIALA: I have a second by Commissioner Coletta. Any further discussion? MS. FILSON: Just for my notes. CHAIRMAN FIALA: Yes, ma'am. MS. FILSON: Does that includes the 12 conditions? COMMISSIONER COYLE: Yes, it does; yes. CHAIRMAN FIALA: All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Okay. That is a 4-1 vote, and it passes. Page 209 February 24, 2009 MR. YOV ANOVICH: Thank you. CHAIRMAN FIALA: Thank you. Item #14B CRA BOARD TO REJECT THE SOLE RESPONSE RECEIVED FOR REQUEST FOR PROPOSAL (RFP) #08-5112 FROM KA YE HOMES TO CONSTRUCT, MARKET AND SELL MODERATELY PRICED HOUSES ON CRA-OWNED LAND; AND TO APPROVE THE CRA STAFF TO RELEASE A NEW RFP AT A LATER DATE THROUGH THE COLLIER PURCHASING DEPARTMENT - MOTION TO ACCEPT STAFF DIRECTION AND DENY PROPOSAL - APPROVED CHAIRMAN FIALA: Let's move on. We have a couple people in our audience, about four of them, for an item. It's -- what is it, 16G1, which is now 14B. MS. FILSON: I have one speaker for that item. I have two speakers under public comment, Ms. Chairman. CHAIRMAN FIALA: Oh, okay. MR. MUDD: This is a -- 16G1, 14B, goes -- and it's a recommendation for the CRA board, okay. So I guess we don't have to move the gavel-- yes, we do -- for the CRA board to reject the sole response received for request for proposal 08-5112, from Kay Homes, to construct, market, and sell moderately priced homes on CRA-owned land and to approve the CRA staff to release a new RFP at a later date through the Collier Purchasing Department. This item was moved from the consent agenda to the regular at Commissioner Henning's request. CHAIRMAN FIALA: And let me just stop you for a moment. County Attorney, being that I'm chairman of both, do I have to wrap gavel or anything, or change my hat? Page 210 February 24, 2009 MR. KLATZKOW: You could if you'd like, but I think we're okay. CHAIRMAN FIALA: Okay, very good. We can move forward. David? MR. JACKSON: Good evening, Commissioners. David Jackson, executive director for the Bayshore Gateway Triangle CRA component. I believe that is brought -- was brought from the consent agenda to the regular agenda at a request of Mr. Stuart Kaye. And since that is -- seems to be the genesis of this. I think, Madam Chairman, it would be appropriate for you to hear what his concerns are, and then I would like to reserve the opportunity to follow up and respond. CHAIRMAN FIALA: Very good. COMMISSIONER HENNING: Yeah, that's not -- that's not a true statement whatsoever. CHAIRMAN FIALA: What would you like to say then? COMMISSIONER HENNING: Sure. Mr. Jackson received an email with myself. It was copied to -- actually it was copied to Mr. Jackson, sent to the county manager, and I asked for it to be put on the regular agenda. If you received an email from Mr. Kaye asking it to come off the consent agenda to the regular agenda, you had the opportunity to put it on the regular agenda, not Mr. Kaye, unless he petitions the board or CRA board, when it -- before the agenda was approved. Did you receive an email from Mr.-- correspondence from Mr. Kaye to put it the regular agenda? MR. JACKSON: No, sir. And I don't want to challenge your statement. If you wanted to bring it from consent to regular agenda, then I'm here to answer any of your questions. COMMISSIONER HENNING: Okay. There was -- Kaye Homes responded to the RFP? Page 211 February 24, 2009 MR. JACKSON: They did. COMMISSIONER HENNING: Was it not in compliance of the requirements under the RFP? MR. JACKSON: In our opinion from staff, yes, it did not -- or no, it did not meet all the requirements. COMMISSIONER HENNING: What conditions of the RFP did it not meet? MR. JACKSON: If I may then, in response. In the RFP there are several conditions that have to be met by the respondent and also there are certain things for the CRA and the county in responsibilities. In there I've checked two of the six items that are on the board there that have respect -- that, respectfully, we don't have -- we have a problem with. The negotiated buy-down price of the CRA land to achieve acceptable sales price in the specific terms and conditions of proper distribution -- disposition, excuse me, will be negotiated. We could not come to terms on those two items, along with a series of other miscellaneous low-level items that are -- don't have the merit to be discussed at this point, but if you wanted to, we could get into them. Of those two things, we could not come to an agreement that was acceptable to the CRA staff that met the CRA RFP, sir. COMMISSIONER HENNING: Okay. That wasn't -- I didn't see that in the executive summary. What I seen in the executive summary is because of -- there was only one respondence to the RFP and the concern of the housing prices or the market conditions. MR. JACKSON: Correct. Ones that were just pointed out there. Housing prices. The sale and disposition of the land is part of the housing prices. COMMISSIONER HENNING: Okay. They're building houses on our land, right? MR. JACKSON: Yes, sir. COMMISSIONER HENNING: Okay. What was -- what was -- Page 212 February 24, 2009 what's the acceptable square footage prices that the CRA was looking for, and was that in the RFP? MR. JACKSON: The acceptable square foot -- well, we didn't put a square foot price. We a price value per house, not to exceed $200,000. COMMISSIONER HENNING: Okay. I -- can you show me that within the RFP? Because I went over the information that you sent me, and I just -- I couldn't understand why you were objecting to it except for, it was only one bid, which is not a condition under the RFP. What page? MR. JACKSON: It would be number -- paragraph number 3. COMMISSIONER HENNING: Of? MR. JACKSON: I don't have the page; paragraph number 3 of the RFP. And I've got it up on the visualizer for you. Constraints upon the contractor. COMMISSIONER HENNING: Okay. Well, I'll look for it, but I'm not going to hold up the process. CHAIRMAN FIALA: Okay. Commissioner Coyle? COMMISSIONER COYLE: Yeah. The reasons for taking this action, recommending this action, are very clearly laid out in the executive summary. Under considerations it tells us that the homes that were proposed are too large to fit on the small40-foot lots and the two-story plan exceeded the maximum cost of construction. They tried to reach an agreement with Kaye Homes. Kaye Homes' proposal relied on the CRA absorbing a loss which equated to $380,000 in addition to possible buy-downs above and beyond the $380,000 that will be unknown until the houses are built. It's very clear why Mr. Jackson is recommending this action, and I -- do we have a speaker? MS. FILSON: Yes, sir. CHAIRMAN FIALA: Would you like to call that speaker now? Page 213 February 24, 2009 COMMISSIONER COYLE: Yes. MS. FILSON: Stuart Kaye. COMMISSIONER HENNING: Can you leave that up, please, Mr. Jackson. Thank you. MR. KA YE: Thank you, and good afternoon. I'm not sure whether I address you as commissioners or CRA chairs. COMMISSIONER COYLE: Hey you. MR. KA YE: You guys. My name is Stuart Kaye, and for many of you, this is the first time you're going to be hearing about this issue. I am the only petitioner, and my presentation will take about five minutes, and so I'm requesting your permission to proceed accordingly. CHAIRMAN FIALA: Well, you only have three, so see what you can do. MR. KA YE: Okay. And I think I'll be able to answer very clearly, Mr. Coyle, questions that -- the statements that you made. The Bayshore Triangle was created nearly a decade ago, and one of the primary goals is to make the neighborhood a place where families want to live, work, and play. Numerous attempts have been made to attract large-scale developments that included new housing, but for various reasons they have yet to get off the ground. This past summer the CRA Advisory Committee decided to scale down their vision with the goal of jump-starting single-family housing, and this RFP was created. The RFP was downloaded 99 times by interested parties. The RFP required the applicant to perform a market study, design two styles of homes, bid on specific home sites, build the homes, market the homes, and ultimately sell the homes. Kaye Homes was the only applicant to submit a complete application. On September 21 st we were interviewed by various members of county staff and the chair of the CRA Advisory Committee. And by a Page 214 February 24, 2009 unanimous vote, we thought we had the job. In December Mr. Jackson advised me that the CRA Advisory Committee was concerned about market conditions since issuing the RFP and wanted to understand more about the housing market. At the next advisory board meeting, data from the Naples Board of Realtors was presented for the market area known as South Naples. The South Naples area includes the Bayshore neighborhood as well as a larger area. And data showed that in every month since the RFP was issued, pending sales increased each and every month as well as in the under 300,000 price category, which is, of course, the target market of our homes. It's no secret that prices skyrocketed and now they're beginning to return to levels that make sense for a normalized market. The committee then requested housing information specifically for the Bayshore neighborhood. You should know that prior to being a builder, I worked for Dr. Hank Fishkind at the Bureau of Economic Business Research, was a principal in a real estate research company performing micro research and feasibility studies. Every sale was analyzed in the Bayshore area from January 1, 2008 through January 29, 2009, as was every listing in the area as of January 29, 2009. The information was summarized in the 9-page summary included in your package and presented at the next advisory meeting. The data clearly showed that given the conditions and the age of the homes, their actual selling prices, the current listing prices, that the homes could be marketed at a price that made sense with a minimum amount of risk. Yesterday I received a letter from Mr. Jackson stating the RFP was rejected because it was thought the price was too high. This issue had never, never been brought up in any of the dozens upon dozens of interactions with staff or the advisory committee, with one exception, which I'll discuss in a moment. The advisory committee never Page 215 February 24, 2009 questioned the cost, since that was a requirement of the RFP. I mentioned earlier the RFP was downloaded 99 times according to staff. I'd suggest the reason it was downloaded so much but there was only (sic) response was because it was very hard to meet the cost requirements. And only from being here as long as we've been here, working with our trade partners, working, including financial assistance with a CRA-friendly financial institution were we able to meet the strict criteria of the RFP. Regarding the issue of pricing -- CHAIRMAN FIALA: Mr. Kaye, will you wind it up, please? You're already past. MR. KA YE: Yes. At some point -- and there are no others. And there's so much information and you're just receiving it. And I appreciate your indulgence, whatever you can do. It's about two more minutes, as I said. And I think it's important for our citizens. But thank you, I appreciate and respect that. Regarding the issue of pricing. At some point during November, Mr. Jackson called me to his office, and I was told that someone had offered to build my homes for a lot less money. I looked Mr. Jackson in the eye and suggested that he call a meeting with that person, and if that person was licensed and legitimate and could do the job for that amount, I would donate the entire cost of construction to the CRA. That was the last I heard about pricing. That was the last I heard about pricing, and that was the end of my cordial relationship with Mr. Jackson. CHAIRMAN FIALA: Thank you, Mr. Kaye, I appreciate it. And now Mr. Henning ~- or Commissioner Henning. COMMISSIONER HENNING: Mr. Kaye, do you see what's on the visualizer? MR. KA YE: Yes, sir, uh-huh. COMMISSIONER HENNING: Provide four homes not to exceed $800,000? Page 216 February 24, 2009 MR. KA YE: Correct. COMMISSIONER HENNING: Did you match that? MR. KA YE: Absolutely. COMMISSIONER HENNING: Option 2, to provide the cost to the construction of three homes not to exceed $600,000, 6 -- yeah, $600,000, including -- inclusive of the builder's profit? MR. KA YE: And to help you, the answer is yes. Our first presentation was for the four homes not to exceed 800-. Based on requests from the staff, we then came back with three homes not to exceed $600,000. CHAIRMAN FIALA: Commissioner Henning, I happened to sit in on that meeting. I dropped by that day. And that evening -- like nothing better to do with my time, I guess. Anyway, I sat in on the meeting, and what happened was, the board, the entire advisory board was sitting there, and they were discussing the fact that they felt that this is not time to be building anything on Bayshore, and they felt that they would like to put this off for a while and not build this. And they voted unanimously to put this on hold and at a future time, not now, but at a future time, put it out for RFP. COMMISSIONER HENNING: Well -- and that's fine, Commissioner, I understand that. But you don't ask somebody to do a whole bunch of work and just say, oh, I changed my mind. I don't want to do it now. CHAIRMAN FIALA: But in the -- you know, I think that things changed as far as the market and so forth went. COMMISSIONER HENNING: Well, the -- again, it takes a lot of time to put -- when you do a request for a proposal and somebody submits it, it takes a lot of time to put that package together. And, you know, I'm very disappointed if -- and I understand their concern, but I'm very disappointed that that's what it resolved to is says, eh, we changed our mind. Page 217 February 24, 2009 CHAIRMAN FIALA: Well, I think that the board -- it wasn't just haphazardly. I think they deliberated. Jean, would you like to say something? MS. JORDAN: Hi. Jean Jordan, for the record. Project manager for the Bayshore Gateway Redevelopment Area. First of all, when we were in the selection committee meeting, when the vote was approved, originally there was concerns voiced by everyone -- and it's on record. I even went through the minutes to verify that, that it's on record -- that, first of all, the home he submitted cannot fit on our lot so, therefore, it did not meet the RFP, the intent of the RFP, the single-family home that he submitted. He submitted a two-story home which exceeded the cost of the RFP; however, after much discussion and deliberation, the committee agreed to go ahead and try to negotiated with Mr. Kaye in order for him to come up with a house that fit on those lots. The house plan that he came up with that -- in order to try to fit on the lot never did. We never got a single-family house that fit on the lot. The two-story houses does (sic), but the single-family houses do not fit on the lot, so that's why we made the lots 53 foot instead of 40 foot was in order to try to work with him to get those houses to fit on the lots. They still did not. Another issue was that the houses didn't meet the BMUD regulations of the overlay. The houses he submitted did not have stem walls. The BMUD regulations states that the house has to have stem walls. That's also in the RFP. So the changes he made in order to try to accommodate and put a house on the lots was because originally that house didn't fit on the lots. And we have gone back and forth. And originally the CRA with his first submittal that we were trying to work on, the CRA would have had to give up about $138,000 in costs. That cost that the CRA has to give up, over -- through these negotiations with Mr. Kaye is in excess of 400,000 now. Page 218 February 24, 2009 So it may be a good price for a house, $150 a square foot, but the CRA paid $250 a square foot for that house because it -- his calculations do not include the land in values like that. There's many things in the RFP that was not met. We tried to work and work with Kaye Homes in order to arrive at something. It's been almost six months now. And the CRA didn't think that it was prudent or economically sensible to go and contribute $400-and-some thousand to build this home when no one else is giving up anything. It's just the CRA. And those were a lot of the reasons. COMMISSIONER HENNING: Just one question. That $400,000, is that land cost? MS. JORDAN: That's the land. In addition, the RFP stated that the impact fees were to be calculated in the 200,000. It was to be calculated as if no impacts fees were available. Well, we have impact fees on the property that are paid because we removed mobile homes. That's about 30,000 on each lot. That's in a different -- that's in addition of almost $90,000 in impact fees that the builder is absorbing and getting the benefit of and the CRA is not. So his costs did not take up impact fees. So there are so many things that did not meet the RFP. COMMISSIONER HENNING: So it didn't include removal of the impact fees that are already on the land? MS. JORDAN: Right. So the Kaye Homes winded up with that additional money instead of it coming as a buy -down for the property to owner. And there's just so many issues that we've gone through. COMMISSIONER HENNING: Is there anything else in that $400,000 besides land costs? MS. JORDAN: No. It's land, impact fees. In addition, Mr. Kaye wanted us to pay for the marketing and commission. Originally the RFP stated that we would pay 6 percent commission. Then in the -- in another RFP -- well, another stipulation Page 219 February 24, 2009 that he gave to us, it said it increased to eight. So the prices for the CRA has gone up and up and up. So it appears on the surface that you're meeting the $200,000 because he can build three houses for 600,000, but really those three houses are costing over a million dollars to the CRA. COMMISSIONER HENNING: Okay. MR. KA YE: May I respond? CHAIRMAN FIALA: Commissioner Coy Ie, this is your district. Would you like to weigh in on this first? COMMISSIONER COYLE: Yeah. I would like to clarify a couple of things. It is an unfortunate characteristic of government that when they issue RFPs, they always reserve the right to cancel them for any reason whatsoever at any point in time. I didn't like it when I was bidding on government programs, and I know that you don't like it. Nobody else does either. But that's the way it works. And that's what the term of the RFP really is. The government, the county, reserves the right to withdraw this RFP at any time and for any reason. And the receipt of your proposal does not obligate the county in any way. So I have no choice, quite frankly, but to make a motion to accept staffs recommendations concerning this issue. COMMISSIONER HALAS: Second. CHAIRMAN FIALA: I have a motion on the floor by Commissioner Coy Ie to accept the staff recommendation, and a second by Commissioner Halas. Any further discussion? (No response.) CHAIRMAN FIALA: All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. Page 220 February 24, 2009 COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) CHAIRMAN FIALA: It's a 5-0. And we are going to -- MR. JACKSON: Madam, may I make one comment? Commissioner Henning, I apologize for all the terseness, but it's been a rollercoaster ride for six months. I didn't mean to -- no disrespect. COMMISSIONER HENNING: Are you feeling okay? MR. JACKSON: Slightly. COMMISSIONER HENNING: You're not sick, are you? CHAIRMAN FIALA: With that, we'll take a break. We'll be back in ten minutes. Thank you. (A brief recess was had.) CHAIRMAN FIALA: Okay. We're back in session, and I would like to tell you right now that we plan on walking out of here at six o'clock, even if we're not finished. We can come back in the morning to finish the meeting. But we'd like to try and finish as much as we can by six o'clock. COMMISSIONER COLETTA: Well, let's hurry before Commissioner Coy Ie gets here. We can get it done real quick. Item #10D RESOLUTION 2009-47: FY10 BUDGET POLICY AND TO APPROVE A RESOLUTION DIRECTING THE SHERIFF, THE SUPERVISOR OF ELECTIONS AND THE CLERK TO PROVIDE THEIR FY10 BUDGET SUBMITTALS BY MAY 1, 2009 - MOTION TO APPROVE BUDGET GUIDANCE - APPROVED MR. MUDD: Commissioner, next item on the agenda would go to 10D, and that's a recommendation to adopt the FY10 budget policy Page 221 February 24, 2009 and to approve a resolution directing the sheriff and the Supervisor of Elections and the clerk to provide their FY10 budget submittals by May 1, 2009. And Mark Isackson from the office of management and budget, will help and present, okay, and I will help him, and we'll kind of tag team it the best we can. MR. ISACKSON: Thank you, County Manager. For the record, Mark Isackson with the office of management and budget. I'm here presenting on behalf of my boss, John Y onkosky, who is the budget director. Each year staff presents for your consideration a series of budget policies which are designed to guide the development of the budget document which you first see in June, your budget workshops. This year, as in previous years, the policies were presented to the subcommittee of the Productivity Committee and the Productivity Committee, and I believe you received under separate cover a commentary from the Productivity Committee providing input on their thoughts and commentary on the budget policy document. As County Manager Mudd mentioned, there are two actions requested. The first is approval of the budget policy recommendations and the second deals with the resolution directing the sheriff, Supervisor of Elections, and the clerk to submit their respective budget by May 1 of2009. Let me take a moment to discuss the aspects of the budget policy. Pages 1 through 6 are essentially policies that evolved from one year to the next. And we sit down and talk about those at a staff level, develop those policies, submit them to the Productivity Committee, and they're before you this evening for your consideration. Pages -- MR. MUDD: Hang on. Commissioners, just for clarification. He's mentioned 1 through 6. Their page -- it starts on your Page 5 of 20, and at the bottom you'll notice it's 1, and that's where it basically Page 222 February 24, 2009 would be, 5, 6, 7, 8, 9 and 10. MR. ISACKSON: Thank you, County Manager. Second covering -- the pages are covering 7 and 9, and those are existing policies that are proposed to be continued for the current -- or for the FY10 fiscal year. And the third component, beginning on Page 10, is a three-year discussion of ad valorem budget projections from FYI 0 to FY12. Mr. Mudd, if it's your pleasure, we can begin to go through the body of the document beginning on Page 1 with millage rates, if that's your pleasure. MR. MUDD: Okay. Commissioners, we're on Page 5 of20 at this particular juncture. Title of the page, FY10 Proposed Budget Policies, and we'll start right in. We have talked prior that I would come forward with two proposals from staff that would basically align with a millage-neutral and a tax-neutral position, so basically two budgets. So, again, I'm on Page 1 in the middle, and it says, millage targets for the countywide general fund. If -- and it lays out in the second paragraph what majority vote means, what supermajority vote is, and what unanimous vote is, but it's really the third paragraph there that lays out the ramifications of what a millage-neutral position would be in the general fund. That would equate -- now, this is based on the estimates for reduced property values that we received from the Department of Revenue on the middle of December from the state. And they basically talked about a 13.9 percent decrease in the taxable property values of Collier County. Millage -- millage neutral against that decrease would represent a $34.4 million reduction in our revenues that -- from what we received last year, which was close to $247 million. That's very difficult, and that's a very difficult cut to make. And I asked Mark earlier today to just -- to just lay that out for Page 223 February 24, 2009 me and talk about -- and talk about why it's so difficult. If you take a look at the budget, the '01 budget from last year, and you layout how much that was in the entire general fund -- and that's with revenues from parks and rec, that's with the sales tax proceeds from the state, that's with revenue sharing from the state including our ad valorem. If you take a look at that entire pot of money in which we call it the general fund, that would be $369 million. Of that $369 million, 51.9 percent is in the health, safety, and welfare category, and that's everything from mental health, public health department, Isles of Capri Fire, EMS, medical examiner, helicopter operations, emergency management, the 800-megahertz system that we have that basically works our emergency calls throughout the county, state attorney, public defender, circuit judges, county judges, reserves that are mandated by the state, the sheriff and sheriff pay. That health and welfare pot of the $369 million is $192 million; 52 percent, thereabouts. Your debt service is 9.6 percent. What does that equate to in millions? 35.6 million. Your mandates from the state equate to $34.8 million, and that's everything from BCC salaries -- because the board is -- and your salaries are directed by the state, the Naples CRA payment, the juvenile justice payments, watershed management requirements from the state, facilities campus utilities, Regulation Planning Council, Immokalee redevelopment, Gateway Triangle, and it goes on, and the constitutional salaries and their office budgets. So that's another 9.3 percent. What you're left with is 29.02 percent, which equates to $107 million, and that's what operates everything you've got, the rest of the county as far as libraries, roads, and it goes on, and I have a whole list of that particular item in the process. So when you take that $34 million cut from the general fund, Page 224 February 24, 2009 you're taking it basically from the $107 million that you've got in what I'll call discretionary, that 29.02 percent. Makes it very difficult. This will be a very difficult budget process for staff and for this community because there will be some great dialogue with the community about what things are really important for them and what things aren't. So millage neutral, it is a $34 million cut. It basically equates to revenues of $213 million versus the 247 that we received last year. And if you decided to do a tax-neutral position, the millage rate would increase from 3.1469 mills to 3.6549 mills, and that would make it tax neutral as far as ad valorem taxes are concerned. It does not take into account the reductions that we're seeing in sales tax and revenue sharing from the state, and that would have to be made up with additional cuts in that, what I call, the discretionary aspect, and our estimate would be that it would be a 3 percent reduction as far as the ad valorem budgets are for FY09. Now, the allocations that we've done in the past, in 2004 this board basically created at my recommendation and with your approval -- and it has been a good benchmark for this county and for everybody that basically uses ad valorem dollars to do their jobs within this county, and we've called it the allocation, and it's on Page 60f20. And it basically talks about -- that's what we call the pie, and I guess we finally talk about it being the pie. And it was those percentages that the board said that folks would not exceed. And I bring the budgets every year, and we basically talk about anyone that has exceeded the pie, and that is still there. Our recommendation is that we still use that particular policy decision that the board used and started back in FY04. CHAIRMAN FIALA: Which was what again? Please say that. MR. MUDD: Ma'am, it's on Page 6 of 20, okay, and it's the general fund budget allocation by agency, and it's right there on that table, ma'am. CHAIRMAN FIALA: Okay. Page 225 February 24, 2009 MR. MUDD: The next item is millage targets for the unincorporated area general fund. We have what we call the 001 fund and we have the 111 fund. And what I'm talking about now is the municipal services taxing district which we call the unincorporated area general fund. In the scenario where it's millage neutral, your millage neutral rate late year was .6912. What that would represent as far as a cut would be, would be a decrease of $4,887,000. The board decided to go the tax-neutral position, there would be some decrements in the 111 fund because of shortages -- not everyone pays their tax bill every year, and it's become more and more apparent as -- from last year's experience and this year's experience. You will have some folks that will not pay their tax bill, and the tax deed sales will not be able to supplant that lack of bill paying for their taxes. So you'll have some cuts to make up for that shortage in the 111 fund. Again, present two budgets. We will present a millage-neutral and a tax-neutral position as far as this fund is concerned. Our recommendation in the MSTUs and MSTDs, the board can -- we will show you both millage neutral and tax neutral. Our recommendation is you do the rollback rate, which is -- it will be a tax-neutral position as far as that is concerned. And that will-- if you don't have any questions on the first two pages, 5 and 6, we will move to Page 7 of20. CHAIRMAN FIALA: There are questions. Commissioner Halas, Coletta, and Henning. COMMISSIONER HALAS: You stated that the property tax appraiser came up with -- and this was in mid December, a 13.9 percent decrease in revenues that are going to be collected. Are we going to have an update? Because there was something I read this morning out of Bloomberg that the price of housing throughout the United States dropped at its highest level in the month of December. So do you anticipate that there will be an update -- Page 226 February 24, 2009 MR. MUDD: Commissioner, on 1 June by Florida Statute, your property appraiser is to tell you what the decrease or increase in property rates will be, and at that particular juncture you'll know exactly how it relates to Collier County. The Department of Revenue -- and just to make a correction to your statement. The Department of Revenue from the state gave us the December prediction of the 13.9 percent. They will do another update the middle of March to the end of March for the House and the Senate in Tallahassee. We'll take a look at that as soon as we get it and we'll see how well it starts. Commissioner, we have to start someplace on this particular issue. We're basically coming up with a budget, or two budgets, one at a 15 -percent cut and the other one at a 3 -percent cut. COMMISSIONER HALAS: The other question I have, you made a statement that people are not paying their taxes, whether it's foreclosure, whether they just don't want to pay them. At this point, do you have an idea of the revenue shortfall from the Tax Collector? MR. MUDD: Sir, I can tell you, based on what I've seen on his monthly reports, the county is $50 million -- $53 million light as far as where we were last year in tax collections. What does that equate to Collier County? To you, in particular, and to me? Our -- if they stop collecting taxes tomorrow, we would be responsible for $27 million of that 53-. COMMISSIONER HALAS: That's on the county manager's side and the other elected officials? MR. MUDD: It's the county's piece, and it would be all the constitutional officers -- COMMISSIONER HALAS: Constitutional officers. MR. MUDD: -- and the county manager's agency. The reason I say it's in half, because the school would have to absorb the other shortfall. COMMISSIONER HALAS: Other thing I have, if we go in the Page 227 February 24, 2009 direction of millage neutral, how can we get the other constitutional officers to abide by those rules and also, how can we get them to abide by the fact that there has to be copay in insurance? MR. MUDD: Sir, are you -- when you say -- COMMISSIONER HALAS: I'm just -- I'm just -- MR. MUDD: What rules, sir, is the question? COMMISSIONER HALAS: Yeah. Is there a rule that they have to abide by, the -- if we came up with something where we'd have a huge revenue shortfall greater than we can handle? MR. MUDD: Sir, the Tax Collector and the Property Appraiser's budgets are approved by the state. The -- again, you get to see the Supervisor of Elections and the sheriffs, making a determination on the clerk's if he decides to be a budget officer versus a fee officer. I'm not going to argue that right now, but you have some semblance of approval power with those three that are left that are basically on the budget side. The sheriff always has a right to appeal his particular budget and your decisions to the state if he so chooses. COMMISSIONER HALAS: So my final question is, I think where -- what you've told me is that we really don't have any strong jurisdiction over them other than the idea of approving their budgets? And if we make some drastic cuts and they don't go along with it, then the end result is that you pick up the shortfall; County Manager and the Board of County Commissioners pick up the shortfall? MR. MUDD: That could be. And one of the -- one of the reasons that I led with the particular pie chart on opening this discussion with the board is the fact that if the health, safety, and welfare side of the Board of County Commissioners -- I mentioned before that that was -- that represented $192 million. The sheriff has the largest portion of that 192, which is 151 plus board paid, which is 3.8. Let's say it's 155 for just this discussion for simplification. If the health, welfare, and safety portion of your budget becomes Page 228 February 24, 2009 a hands-off aspect, that will be funded no matter what, and the board decides to go to millage neutral, then the $34 million will be -- will be found within your discretionary fund, and it won't be a 15-percent cut there. It will be a 30-percent cut, and so that's why this is going to be an interesting discussion with the board because it has some dire ramifications to the services that this board provides to the taxpayers and visitors of this community. COMMISSIONER HALAS: I just want to -- my last -- this is just my opinion. I've had discussions with my District 2 group, and we had the sheriff deputy there, we also had fire, we had EMS, and this discussion came up because I felt it was important and I wanted to get a read on what the people who represent homeowner groups, where they stood on this thing, and they said that they felt that an increase in their taxes, whether it be raising the millage, they were in favor of that, basically a tax-neutral position. They felt that it was important to make sure that the quality of life did not deteriorate. They were also very adamant about their landscaping and also very adamant about having their libraries open. And they were also concerned that they didn't want the service from the sheriff to be decreased because they felt that we're in a time frame here where the sheriff has worked very diligently to make sure we have a low crime rate. But obviously, under the economic times, we could be saddled with some additional problems in the community. So that's my two cents. CHAIRMAN FIALA: Thank you, Commissioner Halas. I, too, have been doing the same thing. I've been working with my community trying to find out how they feel about taxes, how they feel ~bout -- I told them if we -- you know, our taxes will drop because our property values have dropped, so will our services, and would they prefer that lower tax rate or would they prefer to pay what they paid last year, same thing as last year, which was still lower than the year before, but their services would continue. Page 229 February 24, 2009 And without exception -- and I've probably talked to 250 people so far. Without exception everybody said they'd rather pay the same taxes as they paid last year rather than have their services decreased. And I live in East Naples. So -- and now you get the North Naples and you get the East Naples. Commissioner Coletta, I think you're next. COMMISSIONER COLETTA: Thank you. I appreciate that. Of course, there's great concern within my district, too. You know, we're the one that's been the last one in line because our development has taken place at an expeditious rate over a number of years, and we're still trying to get caught up in everything out there, including libraries, recreational areas, and roads. But Mr. Mudd, just for a little history lesson, to be able to put everybody in proper perspective. Over the last three years, due to the state mandates, due to the voters' initiative, due to initiative of this commission, how much money have we removed from the budget? I believe it's $84 million. I shouldn't ask a question I know the answer for. Forgive me for doing that. But it's probably in excess of $84 million. Am I about right? MR. MUDD: Yes, sir. COMMISSIONER COLETTA: Now, we're up against another budget year where we're looking at two possibilities, one of them is millage neutral, which would put us in a tremendously disadvantaged position for maintaining all the things that your residents want and things that my residents want. Now, decisions aren't going to have to be made 100 percent today. The other option, of course, is the one that everybody's got on the floor right now, and that's the tax neutral, which would bring us back to where we were last year. There's one more option, and I'm going to ask the question, how that would work, and that would be where we'd be revenue neutral. What would that be as far as an increase over what we are now if we Page 230 February 24, 2009 wanted it to go revenue neutral and maintain all the services that Commissioner Halas and Commissioner Fiala were talking about? What would be the difference in dollars and what would be the difference in millage? MR. MUDD: It's about $10 million, okay. But you'll know that information if I provide you the two budget scenarios, one that's millage neutral and one that's tax neutral. COMMISSIONER COLETTA: Well, here's the problem, Mr. Mudd. If you provide two scenarios, it's going to be broken down with those two. Ifwe provide three, not saying that we'd ever take the first one or the last ones, at least it gives us a perspective to know what we're going to be down as compared to what it was in the past. MR. MUDD: Yes, sir. That minus 3 percent -- when I say tax neutral, the minus 3 percent is because of the shortages to sales tax, revenue sharing, and whatever we don't get in tax -- where people don't pay their taxes at all, to make up that process. That 3 percent equates to around $9.5 million. COMMISSIONER COLETTA: But what I am saying is the fact that decisions aren't made today, we don't know what the numbers are, but if we had that come back with a third option so we could take a look at it and see where we stood, then we could start making the adjustment backwards from there. That's what I would suggest, so we have three options instead of the two. COMMISSIONER COYLE: Can I just jump in just to clarify something? CHAIRMAN FIALA: Sure. COMMISSIONER COYLE: I don't want to stay -- Commissioner Coletta is using two terms that mean the same thing. He's talking about revenue neutral and tax neutral. COMMISSIONER COLETTA: No, they don't. They don't mean the same. MR. MUDD: No. Let's -- Page 231 February 24, 2009 COMMISSIONER COYLE: Wait a minute. Tax is revenue. MR. MUDD: It's. one portion of the revenue. It's the biggest portion of that $369 million, okay. It would be 200 this year. It was 247. You still have additional revenues that come in, i.e., from parks and rec fees and late library books and whatever. Those are also part, and that's the next part that we'll talk about, revenue centric. But what he's basically saying -- and you'll get it, you'll have the information that he's wanting the two scenarios, millage neutral and tax neutral. Why? Because tax neutral is still a 3-percent cut. And what the commissioner is saying, with revenue neutral, it would be a O-percent cut, and you'll be able to see exactly what that is as far as dollars is concerned and the effect that it would be in every operation. COMMISSIONER COLETTA: And then make your decisions from there. MR. MUDD: And I'll just have to kind of calculate the millage in order to do that. I can do that. That's not difficult. Well, Mark can do that. CHAIRMAN FIALA: Oh, Commissioner -- I'm sorry, Commissioner Henning. You're next. COMMISSIONER HENNING: Okay. Well, the revenue neutral would require probably a unanimous vote, and you probably won't get that. The millage neutral takes a simple majority. So what you're proposing is two scenarios, and then the third one over here, I don't think you're going to get. I don't know how much effort it is to prepare the budget for that third option. COMMISSIONER COLETTA: Could you-- MR. MUDD: Is it -- it's just doing a separate sheet in order to show you what the ramifications of that would be, but you'll see it in the document already with the two that we're basically proposing. COMMISSIONER HENNING: But the reason I turned my light on is I think the -- I mean, the MS TU s the last two or three years have enjoyed a revenue neutral, correct? They haven't really received a Page 232 February 24, 2009 rollback like we have in the 111 fund or the 0001 fund -- double 01. And I think that they should enjoy the same thing that the 111 fund-- both general funds should. And if you're going to provide a scenario, provide the same scenario for those MSTUs. That's my opinion. MR. MUDD: I will. I'll provide-- CHAIRMAN FIALA: The question is, don't -- if -- I'm just thinking Bayshore now, because that's the one -- the MSTU I'm most familiar with. So when our taxes drop and when we get less in, doesn't -- don't their -- doesn't their millage drop as well? I mean -- MR. MUDD: Depends on what the millage rate is. It will-- CHAIRMAN FIALA: TIF funds? MR. MUDD: Nope. Depends on what the board sets for the millage rate. If the -- if the properties devalue, okay, and you want to adjust the millage rate to make the proceeds that come into the MSTU -- because they might have debt service that they have to pay for or whatever, you want to adjust that, you can. I believe the two scenarios we're going to provide, even with the MSTUs, will be millage neutral and a tax-neutral position so you can see. COMMISSIONER HENNING: I'm fine with that. CHAIRMAN FIALA: Thank you. Thank you. Commissioner Halas? COMMISSIONER HALAS: I believe last year we discussed this, and if I recall, we had to roll back the millage rate on MSTUs. There was a cut in the MSTUs that we could collect the monies. MR. MUDD: The board decided, because of Amendment I, to make sure that every taxing district, including your general fund and your 111 and all the MS TU s that they were affected because of the Amendment I item, because you basically, as a board, set a policy that said the voters came out in a very strong manner that basically said they wanted Amendment I, and you wanted to make sure that the impact of the cuts from Amendment I were felt in every taxing element that you had in the county. And yes, sir, that did happen. Page 233 February 24, 2009 COMMISSIONER HALAS: Okay, that's exactly right. So there was a relief. Now, because of the economic situation, it's amazing that the people are concerned about libraries and a lot of other things. CHAIRMAN FIALA: I don't know if you were next, Commissioner Coyle, so I'll just go with you. COMMISSIONER COYLE: Okay. Look, I don't think we're trying to solve the tax problem right now. We're here to approve the tax -- the county manager's proposal to give us two and, if necessary, three alternatives. I've read the executive summary. I've read the recommendations of the Productivity Committee. I think the budgeting policy is sound, and I make a motion that we approve it. COMMISSIONER HALAS: Second. CHAIRMAN FIALA: Okay. I have a motion on the floor by Commissioner Coyle to approve the budget guidance that we've received so far, and a second by Commissioner Halas, and then I have Commissioner Coletta on deck with -- followed by Commissioner Henning. COMMISSIONER COLETTA: This is going a lot smoother than I thought it would, but there's one thing that I need to clarify is, I thought I had an understanding from both the county attorney and the county manager that it only took three votes to approve a revenue-neutral budget. Maybe I'm wrong on that. Anybody comment on that, or is that something you have to check out and come back on? MR. MUDD: Commissioner, Commissioner Henning made a statement that said revenue neutral might need a supermajority vote. I can't say that definitively until I go over the numbers. CHAIRMAN FIALA: He said a unanimous. He didn't say supermajority . COMMISSIONER HENNING: Unanimous. MR. MUDD: No, it would have -- it could go with a supermajority vote. It will not have to be unanimous. Page 234 February 24, 2009 CHAIRMAN FIALA: Oh, he said unanimous. MR. MUDD: And I -- well, lookit, I will find out specifically what vote requirement the board will have to have based on the millage rates that they layout and the process. I just can't say Commissioner Henning was dead right or dead wrong. I will tell you I believe you're pretty close to having a majority vote on the process. Why do I say -- why do I say this? Because the zoo won't have any collection this time. So the .15, we pretty much paid the zoo off. So you have a millage rate and you had taxes for the zoo that won't be collected this year. So you have some space. So if you went revenue neutral, I really believe with majority vote you could do that because of the nonpayment or the noncollection on the millage rate for the zoo and the referendum that the voters did a couple years ago. Three-and-a-half years, we're paid for the zoo. That's good news. CHAIRMAN FIALA: Commissioner Henning? COMMISSIONER HENNING: And I forgot that piece. We talked about it. That's very important. The other thing, are you feeling okay, Sue? MS. FILSON: Uh-huh. COMMISSIONER HENNING: Because you look tired or sick or angry or something. The other thing that the Productivity Committee said, they would like to be engaged in the process. I'm asking the motion maker if they would include that into the motion. COMMISSIONER COYLE: Absolutely. In fact, they're always engaged in the process. We run that through them every time. They come in with recommendations concerning the final budget and everything else every year. I don't see any change there. COMMISSIONER HENNING: Okay. CHAIRMAN FIALA: Great. And I'm sorry, Commissioner Coyle. I didn't mean to -- Page 235 February 24, 2009 COMMISSIONER COYLE: No, it's okay. The vote is more important. I just had an observation -- CHAIRMAN FIALA: Go ahead. Make your observation. COMMISSIONER COYLE: -- that should be of interest to most of the listeners, and the other commissioners brought this up earlier. We've cut $85 million out of the budget in the past two or three years. How many people out there have experienced a big tax reduction? Where did that $85 million go? COMMISSIONER HENNING: Impact fees. COMMISSIONER COYLE: No. It means that we were living off of the revenues of new construction and the growth in Collier County. That -- so we've cut $85 million and our existing taxpayers haven't noticed the difference, and you're probably not likely to notice the difference, particularly the homesteaders. Your taxes will probably go up. But if any taxes -- if you experience any tax reductions whatsoever, it's probably because your property has lost value, okay. So the business about taxes dropping like a rock -- CHAIRMAN FIALA: That everybody thought was going to happen. COMMISSIONER COYLE: Yeah, don't listen to that stuff anymore, okay. CHAIRMAN FIALA: Okay. We have a motion on the floor by Commissioner Coyle and a second by Commissioner Halas. Any further discussion? (No response.) CHAIRMAN FIALA: All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. Page 236 February 24, 2009 CHAIRMAN FIALA: Opposed, like sign? (No response.) CHAIRMAN FIALA: We have four minutes left, and we have two speakers for public -- COMMISSIONER HENNING: Resolution. MR. MUDD: Ma'am, I need one more-- CHAIRMAN FIALA: Oh. MR. MUDD: I want to make -- clarification to the motion. Because the motion, just for the first six pages, 5 through 10, you have some existing budget policies for FY10 on your Page 11 and 12, and it says 7 and 8 at the bottom, and it's important that we get those -- did the first motion include your existing budget policies that you've been normally doing every year? COMMISSIONER COYLE: Yep. MR. MUDD: Okay. So it's the whole thing. I just wanted it for clarification. So 7 and 8 is in there. I don't have any more questions. Thank you very much, Commissioners. COMMISSIONER HENNING: Don't we have to do the resolutions also? MR. MUDD: Yes. You have to -- the second part to this has to do with the approval of the resolution going out to your budget officers basically telling them their budgets need to be submitted by 1 May. MR. ISACKSON: Correct. COMMISSIONER HENNING: Move to approve. COMMISSIONER COYLE: Second. CHAIRMAN FIALA: Motion to approve the resolutions to be sent out to the officers, to the constitutional officer, and second -- that was by Commissioner Henning, second by Commissioner Coyle. Any discussion? (No response.) Page 237 February 24, 2009 CHAIRMAN FIALA: All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) CHAIRMAN FIALA: And we have two public speakers. Thank you, everyone, for being here. MS. FILSON: I have three now. COMMISSIONER HALAS: Hold on. Don't we have to approve the workshops? CHAIRMAN FIALA: Yes, I'm sorry. I'm-- MR. MUDD: No. You did that with the budget guidance, and that includes -- with the workshop dates. COMMISSIONER COYLE: The dates and everything. COMMISSIONER HALAS: The dates, all right. Okay. Wasn't-- I didn't hear it, so that's why I asked. CHAIRMAN FIALA: And you're right. I didn't hear it. Okay . We're going to hear our two public speakers, and then we're going to come back tomorrow morning and just finish this up, okay? Sorry to bring anybody back. I know he -- well, do you want to stay? We can stay. There's -- COMMISSIONER COYLE: Let's get it done. CHAIRMAN FIALA: Okay. That's great. COMMISSIONER COYLE: We have to bring staff back and everything. CHAIRMAN FIALA: Okay. Does anyone mind just staying on? COMMISSIONER COLETTA: I'm for it. COMMISSIONER HENNING: I'll just leave. CHAIRMAN FIALA: No. Okay. Page 238 February 24, 2009 Item #11 PUBLIC COMMENTS ON GENERAL TOPICS MR. MUDD: Commissioner, the next item is 10F. It used to be 16D 1. CHAIRMAN FIALA: Well, why don't we call the speakers first, okay? MR. MUDD: Okay. MS. FILSON: Actually I have three speakers. The first one, I believe, has left. Ken Thompson. CHAIRMAN FIALA: Yes. MS. FILSON: Fred Thomas. He'll be followed by Nancy Payton. MR. THOMAS: Good afternoon. I mean good evening, Commissioners. COMMISSIONER COYLE: Did you notice what happened there? When you walked by, he grabbed his microphone to interview you. He scrambled for it like it was going to get away. MR. THOMAS: Don't start the clock yet, okay? The reason why I'm coming here to you, because things are getting ready to happen and they're going to happen very quick. And I'm going to let you know, some crazy things that this man did in the last three meeting, about last week. We heard last week that the Seminole tribe was trying to negotiate some exclusivity, especially in Collier County, by providing $3.1 million to the county. They're not going to go vertical with the highrise hotel until they do that, and they're ready. And if you have not been to the casino in the last two weeks, you would not recognize it, folks. There's a First Street Deli in there that I guarantee you, if you've ever been to New York for any length of time, you sit in there five minutes, you think you had moved to New Page 239 February 24, 2009 York. Gave pickles out to you in the front and what have you. I mean, they've got nice entertainment, and it's just the real thing. You know, when they opened up -- before they opened up, we didn't know we could be a tourist destination zone. We could be a major tourist destination zone now, going from the casino around to the Roberts Ranch, but they're not going to go vertical till they get that resolution where they get nonexclusivity, because it wouldn't make sense to go vertical with a hotel, and then five years later we decide to have a referendum like they had in Broward County where you can have casino gambling at la Playa in the Naples Beach Hotel. So I called an emergency meeting at the Enterprise Zone Development Agency, which I chair, because we wanted to put together a petition to come to you for you to go to the state to support a compact with the Indians so that we can have exclusivity and Immokalee become a major tourist destination point. Let's talk about that tourist destination point, and I'm not going to take too long doing this. I've gone to Venezuela, Costa Rica, and other places around to try to enjoy myself. Here's what you can do in Immokalee, folks, a location that's less than a three-hour drive to five different TV markets. You like going saltwater fishing? Yes or no? COMMISSIONER COYLE: Sure. MR. THOMAS: You like turkey hunting? COMMISSIONER HALAS: Yeah, I like boar hogs. COMMISSIONER COLETTA: I do. MR. THOMAS: Turkey hunting, okay. COMMISSIONER HALAS: Boar hogs. MR. THOMAS: We going to take you flats fishing or salt-- deepwater, saltwater fishing all within an hour from our location. We're going to take you turkey hunting. After you get your fish, we will take you by a farm where you can pick some fresh vegetables, come back to your lodge and cook those fresh vegetables and eat from God's hand. Page 240 February 24, 2009 Oh, what am I going to do this evening? Go over to the casino. I'm not a gambler. Well, just go over here and we'll dance, have a good cigar, drink great liquor. I'm a casino person. I want to play -- I want to play cards. I want to play -- there's more table games there than I've ever seen anyplace in the world because that have two gigs I've never seen before; one of them is Asian poker, okay? CHAIRMAN FIALA: Fred, what is your message? MR. THOMAS: My message is, we want you to support the compact for nonexclusivity so -- we going to get some money, best we did our part, but we need to do that so that we can vertical with the casino in Immokalee and become your tourist destination, the major tourist destination zone in this country, because when I take you fishing, we're going to see gators, we're going to see wild turkeys, we're going to see deer. These are things you can't do noplace else in this country. CHAIRMAN FIALA: Are we going to see the agreement, Fred? MR. THOMAS: Huh? CHAIRMAN FIALA: Are we going to see the agreement before we -- MR. THOMAS: I don't know. I'm hoping -- because Chris says he's working with Joe, although I'm hoping -- what I want you all to do is pass a resolution that says we want to send a letter of support that we work with the tribe so that we can get that money and go vertical. CHAIRMAN FIALA: But -- MR. THOMAS: And see, now when we do that, some of that money can be used to make the roads well to get access to Immokalee better, but that will also help our economic development, our trade port, and all the rest of the stuff that we have going out there. There's a lot of good things that can happen to make us the economic engine of Collier County and bring money back to the county for which you will not have to give a lot of services. Page 241 February 24, 2009 CHAIRMAN FIALA: Commissioner Henning? COMMISSIONER HENNING: I think we dealt with this the last meeting. Didn't we have a resolution? MR. MUDD: Yeah. I asked the board .,.- I kind of showed you the draft, and I asked the board if anyone on the board would object to getting 5 percent of the gross revenues from the Seminole tribe in Immokalee Casino to have those dollars come back in the general fund in order to do things for Collier County. And it was unanimous as far as this board's agreement to that. MR. THOMAS: And your Enterprise Zone Development Agency voted to ask for your support. CHAIRMAN FIALA: I just wanted to know at that time if there were strings attached. MR. MUDD: These bills -- these bills -- it's gone from draft to a bill in the House and the Senate. And what the governor is trying to do is to get it voted in by the legislature so he's not out there hanging out there all by himself. And exclusivity is in that particular piece of legislation. This is a -- this is a deal with the Seminole tribe, not with Miccosukee. CHAIRMAN FIALA: Miccosukee. MR. MUDD: Okay. It's for the Seminole tribe wherever the Seminole tribe has casinos in the state. COMMISSIONER HENNING: So we already did it? MR. THOMAS: Huh? COMMISSIONER HENNING: We already did it. MR. THOMAS: Okay. But I just want to make sure we understand we lobbied the folks. Because let me say something else to you. Immokalee High School, 60 percent of the students are bilingual, 20 percent are trilingual. We have hooked up a relationship between the Seminole tribe of Florida and Florida Gulf Coast hospitality program. We've been given two $2,000 -- $3,000 scholarships a year to Immokalee High School students that want to go into hospitality. Page 242 February 24, 2009 CHAIRMAN FIALA: Fred, you're trying to talk us into something we already were into. MR. THOMAS: Well, I thought there was some question. That's why I came all the way over here. CHAIRMAN FIALA: We've already -- we've already approved this. COMMISSIONER COLETTA: Good work. COMMISSIONER HALAS: Bye. Thank you. CHAIRMAN FIALA: Thank you, Fred. COMMISSIONER HENNING: Have a nice trip. CHAIRMAN FIALA: Thank you, Fred. MS. FILSON: Your final speaker is Nancy Payton. MS. PAYTON: Nancy Payton, Florida Wildlife Federation. There was no action taken when you were discussing the fish farm to direct staff to develop LDC standards to regulate aquaculture in sending lands, so this is my second appeal to ask you to give direction to staff and work with stakeholders to do that. CHAIRMAN FIALA: Commissioner Coyle? COMMISSIONER COYLE: So moved. COMMISSIONER HALAS: Yes, second. CHAIRMAN FIALA: Okay. COMMISSIONER HENNING: Can we -- can we get an opinion if aquaculture is part of agriculture? COMMISSIONER COLETTA: Aquaculture. MR. KLATZKOW: Aquaculture is part of agriculture. COMMISSIONER HENNING: So you have a right to farm? MR. KLATZKOW: That's a different question, all right. My interpretation of right to farm is it deals with existing farms. Mr. Yovanovich's interpretation would be that it would deal with any farm, past, present, or future. And that's an open issue, quite frankly. COMMISSIONER HENNING: Is (sic) the courts, any of the courts ruled on that? Page 243 February 24, 2009 MR. KLATZKOW: That's an open issue. COMMISSIONER HENNING: So no courts have ruled on it? MR. KLATZKOW: Not to my knowledge. COMMISSIONER HENNING: Okay. Thank you. MS. PAYTON: The federal government does not consider aquaculture agriculture. COMMISSIONER HENNING: He does. MR. KLATZKOW: Not me. MS. PAYTON: No, no, no. MR. KLATZKOW: I think your Land Development Code does. MS. PAYTON: Thank you. CHAIRMAN FIALA: Thank you. We have a motion on the floor and a second. Would you like to repeat the motion one more time? COMMISSIONER COYLE: The motion is to have the staff bring back to us recommendations concerning the regulation of aquaculture in sending lands. CHAIRMAN FIALA: Okay. I have a motion and second. Commissioner Coletta? COMMISSIONER COLETTA: This is for everything from that date forward that we passed then? COMMISSIONER COYLE: Yeah. I don't think we can make things retroactive. COMMISSIONER COLETTA: Thank you. I support it. CHAIRMAN FIALA: Okay. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) Page 244 February 24, 2009 CHAIRMAN FIALA: Very good. Thank you. Item #10F RESOLUTION 2009-48: RESOLUTION DECLARING A PUBLIC PURPOSE AND TO ALLOW COLLIER COUNTY PARKS AND RECREATION TO CREATE A DONATION FUND FOR THE SOLICITATION, RECEIPT AND EXPENDITURE OF DONATIONS TO COLLIER COUNTY PARKS AND RECREATION TO BENEFIT YOUTHS, ADULTS AND SENIOR CITIZENS - SETTING UP A TRUST FUND SO THAT INTEREST EARNED WILL STAY WITHIN THAT ACCOUNT - ADOPTED MR. MUDD: Commissioner, that would bring us -- this would bring us to 1 OF, which is 16D 1. CHAIRMAN FIALA: I'll make this short and sweet and simple, right? MR. MUDD: Yes, ma'am. It was a recommendation for the Board of County Commissioners to adopt a resolution to declare a public purpose and to allow Collier County Parks and Recreation to create a donation fund for the solicitation, receipt, and expenditure of donations to Collier County Parks and Recreation's benefit youths -- to benefit the youth, adults and senior citizens. COMMISSIONER COYLE: Motion to approve. COMMISSIONER COLETTA: Second. CHAIRMAN FIALA: I just had a question. My question is, when we create this, can we create this fund -- I think it's a wonderful idea. People love to have their little bake sales and everything to help the parks, and that's great. But the interest that's earned on that, I would like to see stay there rather than go to the -- be lost someplace else. COMMISSIONER COYLE: It goes to the clerk. It's his. CHAIRMAN FIALA: Well, this is -- why can't you create a trust Page 245 February 24, 2009 fund? MR. KLATZKOW: If -- in my opinion, if you create a trust fund so that the interest earned on that fund goes right back into that fund and you don't have any ability to use that as far as general revenues go, where general funds go, then it's my opinion that, no, the clerk would not be entitled to the income earned on that through interest. CHAIRMAN FIALA: And so my question to you, Commissioners, would be, would that be acceptable to you to create a trust fund so that the interest earned on these little donations would stay with that account? COMMISSIONER COYLE: Would be fine with me. COMMISSIONER HALAS: Fine with me. CHAIRMAN FIALA: Would that be included in your motion? COMMISSIONER COYLE: It will be. COMMISSIONER COLETTA: My second too. CHAIRMAN FIALA: Your second also. Commissioner Henning? COMMISSIONER HENNING: Okay. Is this the department that appealed to the Supreme Court? MR. KLATZKOW: No, not at all. This is not an issue to that. CHAIRMAN FIALA: What's appealed? COMMISSIONER HALAS: State Supreme Court. MR. KLATZKOW: The issue was, what constitutes surplus funds, is not on appeal. COMMISSIONER HENNING: Okay. CHAIRMAN FIALA: Okay. That was my question. Thank you, Barry. Motion is on the floor and a second. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. Page 246 February 24, 2009 COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) CHAIRMAN FIALA: Very good. And then - Item #10G BUDGET AMENDMENT TO THE FREEDOM MEMORIAL FUND (620) IN THE AMOUNT OF $70,000 IN ORDER TO BEGIN CONSTRUCTION ON THE COLLIER COUNTY FREEDOM MEMORIAL - APPROVED MR. MUDD: Commissioner, brings us to lOG. Used to be 16E8. It's a recommendation to approve a budget amendment to the Freedom Memorial funds, 620, in the amount of $70,000 in order to begin construction on the Collier County Freedom Memorial. The item was asked to be moved to the regular agenda by Commissioner Fiala, and I believe it's the same kind of question -- CHAIRMAN FIALA: Same question, yes. Thank you for sitting here all day. Bless your heart. UNIDENTIFIED SPEAKER: Absolutely. CHAIRMAN FIALA: Same question. Is this going to be a trust fund so -- COMMISSIONER COLETTA: Motion to approve with a trust-- with an interest -- the interest being contributed back to this account. COMMISSIONER COYLE: I'll support that, of course, but I have a question. The fund is already established. MR. KLATZKOW: That's correct. COMMISSIONER COYLE: And so I'm not sure what we do with that. Do we change the fund? Do we transfer all the money from the fund into a trust fund? MR. MUDD: Trust fund. Go ahead. Page 247 February 24, 2009 MS. DAVIDSON: If I may, Laura Davidson with the office of management and budget. This -- these funds are in the trust fund. It's currently a trust fund, and the interest retained -- is retained in that fund. CHAIRMAN FIALA: Okay, fine. Then we have it on the record that it is, and so we have a motion to approve by Commissioner Coletta and a second by Commissioner Coy Ie. COMMISSIONER COYLE: I think it was Commissioner Halas seconded. MS. FILSON: It was Commissioner Coyle. COMMISSIONER COYLE: And I thirded. CHAIRMAN FIALA: All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) MS. FILSON: So who are we putting down, Coyle or Halas? CHAIRMAN FIALA: Halas. COMMISSIONER COYLE: Halas seconded. Item #9D PRESENTATION BY THE CLERK OF COURTS TO UPDATE THE BOARD OF COUNTY COMMISSIONERS ON THE COUNTY INVESTMENT PORTFOLIO - MOTION TO BRING BACK A STAFF REPORT REGARDING HIRING AN INVESTMENT ADVISOR AND TO LOOK AT REVISING THE INVESTMENT POLICY - APPROVED Page 248 February 24, 2009 MR. MUDD: Commissioner, the next item, at least on my agenda, you moved it forward to this afternoon, which was 9D, and it was basically the presentation by the Clerk of Courts, and I mentioned that he had provided a letter earlier that basically said he was not going to attend. He stated the reasons why with the board in that particular case, and there was some discussion from the dais that said, well, wait a minute. We want to talk about options or something, Commissioner Coletta basically said. That's what I remember. That's the only item that I don't have crossed off. COMMISSIONER COLETTA: May I? CHAIRMAN FIALA: Yes, certainly. COMMISSIONER COLETTA: Yeah. Well, it's obvious to me that the clerk will not answer our questions regarding the budget and the money that he's holding for us. What's the possibilities of, like the City of Naples does, having an investment adviser to handle our funds in the future? Does anybody COMMISSIONER HALAS: Second that. COMMISSIONER COLETTA: -- have any answer to that? Did I say something wrong? CHAIRMAN FIALA: No. He said, second that. COMMISSIONER ,HALAS: I second that. COMMISSIONER COLETTA: Oh. COMMISSIONER HALAS: Sounds to me like you made a motion. COMMISSIONER COLETTA: Yeah, I did. It was more of a question than a motion. But if it's possible to do that, I would like to have somebody come back and make a report to us. CHAIRMAN FIALA: Is that like they just did with the City of Naples? COMMISSIONER COLETTA: Uh-huh. Well, then again, too, I don't know what's what because the City of Naples is a different entity Page 249 February 24, 2009 than the county government. They're a charter. We're not. So I'm not too sure where we stand, but I'd sure like to hear from staff on it. MR. MUDD: Commissioner, I believe you can have an investment adviser. You will have to change your investment policy in order to enable that particular action to transpire. COMMISSIONER COLETTA: Okay. Then consider it a motion to have it brought back. CHAIRMAN FIALA: Okay. And the second agrees? COMMISSIONER HALAS: Second, yep. CHAIRMAN FIALA: Okay. COMMISSIONER HALAS: The sooner the better. CHAIRMAN FIALA: So we have a motion -- oh. And Commissioner Henning? COMMISSIONER HENNING: I believe the Constitution says twice that the clerk shall be the one holding the funds. But I have another question on the correspondence from the clerk. Did you read that correspondence -- MR. KLATZKOW: Yes, sir. COMMISSIONER HENNING: -- Mr. Klatzkow? And the question is -- well, let me find it. Well, let me read it. It's a -- it's correspondence to the commissioner, chairman, person, should be Fiala, thank you for your letter of February 18,2009, and your invitation to appear before the board on February 24th. With all due respect, after discussing it with counsel, I believe it would not be productive for me to appear and would be a waste of additional taxpayers' source. And in addition to the invitation followed for (sic) your recent decision to spend even more money pursuant to litigation opposing transparency and accountability in government, and forcing my office to do more of the same, in light of the time -- timing of the matters, it is clear that your invitation is part of your trial strategy and such (sic), I will decline. Page 250 February 24, 2009 On the other hand, please remember that it has been less than a year that you wanted to review the investment portfolio. My employee, an expert, at a (sic) great tax expense to review the portfolio and provide you thorough and comprehensive analysis, my investment policy is -- are unchanged since the prior expense presentation with no valid purpose existing for justifying the occurring (sic) that the expense again, especially during the current economic difficult times, which I do not consider the board's litigation and strategy to be a public purpose. We post the entire portfolio makeup on our website monthly for everyone to review, in addition to your hiring an accounting firm, review the portfolio that cost 25,000. The board required my staff to copy, pursuant to public records request, 16,998 copies of the document made, which you had previous (sic) received multiple occasions through litigation, not only from us, but Fifth-Third Bank, and you refuse to pay the statutory costs of the copies. And I'm again making that demand for payment. Well, let me just finish. And I made an offer to resolve the investment issue request with the county attorney's opinion. On April 4, 2007, the board was (sic) refused out of hand. The board, again, had an opportunity at the last Board of Commissioners' meeting to bring the litigation to close once and for all, but the decision (sic) to continue at taxpayers' expense dollars pressing the litigation. I will, therefore, continue to proceed in that content. I have been willing in the past to continue to remain agreeable and amuted (sic) to the aspects of the litigation case as long as it has been done in a public forum. In your desire to discuss the mediation with your counsel, you can contact Mr. Grady at this time. Of course, the board decided different. But the question is, what about this bill for the public records request? I don't remember the board saying not to pay it. Page 251 February 24, 2009 MR. KLATZKOW: I don't remember directing anybody not to, to be honest. I don't know. COMMISSIONER HENNING: Well, obviously we received a bill. He sent it to all the commissioners. Who does he need to have to send it to to get it paid? CHAIRMAN FIALA: Do we know anything about that? MR. MUDD: Well, I think he -- I think -- MR. KLATZKOW: I'll look into it, sir. I mean, it's -- MR. MUDD: I don't think I saw a bill, but I believe it had to do with the records request from your auditor that you asked to do an external audit as far as -- it was the $25,000 contract you had, and I can't -- I'll have to go back and take a look at the particular issues. CHAIRMAN FIALA: The only thing I saw was something where he was charging us $7 for every check that he writes out for payroll for each and every one of our employees twice a month. MR. MUDD: And those are -- and those are being analyzed by a subcommittee of the Productivity -- CHAIRMAN FIALA: And $7 for every telephone call he receives and $7 for every copy that he makes for us and $7 for absolutely everything he does. That's the only thing I've seen. MR. KLATZKOW: Commissioner, I'll write it down for you. I just don't remember the issue, to be blunt. CHAIRMAN FIALA: Yep. Commissioner Halas? COMMISSIONER HALAS: I was just going to bring this up, that of the -- this is in regards to all these pages that he just quoted here of 16,998 copies, at $7 a copy? I don't believe so, okay? The normal charge for that should be no more than a nickel or 50 cents. MR. KLATZKOW: We'll look into it. I just don't know. COMMISSIONER HALAS: Okay. CHAIRMAN FIALA: You'll come back to us at the next meeting? MR. KLATZKOW: I'll give you an em ail before then. Page 252 February 24, 2009 CHAIRMAN FIALA: Great. Thank you. Okay. So now we have-- MR. MUDD: You have a motion and a second. CHAIRMAN FIALA: Oh, I'm so sorry. Yes, we certainly do. We have a -- would you -- would you repeat the motion? MR. MUDD: The motion, I believe, was for staff to come back and layout for the board its ability to get an investment adviser for the Board of County Commissioners. CHAIRMAN FIALA: That was made by Commissioner Coletta. MR. MUDD: Coletta, and I believe it was seconded by Commissioner Halas. COMMISSIONER HALAS: That's correct. CHAIRMAN FIALA: Okay. Commissioner Henning? COMMISSIONER HENNING: What does an investment adviser do? Tells us where to put the investments? MR. MUDD: Yes, sir. COMMISSIONER HENNING: Okay. And do you have something to say, Commissioner Halas? COMMISSIONER HALAS: Yeah, I sure do, as soon as you get done. COMMISSIONER HENNING: Okay. So we're not going to invest the monies; we're just going to tell the clerk where to invest the monies? MR. MUDD: An investment adviser would make a recommendation where the Board of County Commissioners should invest their money once that's done, based on your investment policy that you would have to change. Right now in your investment policy, your investor is the Clerk of Courts. If the board is going to get an outside investment adviser, they would have to change the investment policy in order to make that happen. COMMISSIONER HENNING: Okay. MR. MUDD: And to answer your question, that investment Page 253 February 24, 2009 adviser would then tell the clerk where he needs to put that money. COMMISSIONER HENNING: Okay. COMMISSIONER HALAS: And hopefully we would get an accounting when we ask for it at a reasonable time without a lot of flack so that the citizens understand where their tax dollars is going and where it's being invested at, and if there is a gain or a loss, and I think that's the most important thing. Obviously where we're going right now, we're not getting anywheres, and I'm very disappointed, because this is taxpayers' money, and they need to know what's going on with it. CHAIRMAN FIALA: Okay. So we voted on that, correct? MR. MUDD: No, ma'am. CHAIRMAN FIALA: Okay. So we have a motion on the floor and a second. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Opposed, like sign? (No response.) CHAIRMAN FIALA: Okay. We have a 5-0 on that. Item #15 STAFF AND COMMISSION GENERAL COMMUNICATIONS And now, let us hear from the county attorney. Do you have anything, any words of wisdom? MR. KLATZKOW: No, not at this time. CHAIRMAN FIALA: Okay. County Manager? Page 254 February 24, 2009 MR. MUDD: No, and I won't do what I've done in the past before at the end, basically talk about four different things. I just have a piece of good news, and I'm looking for the piece of paper. But it looks like the committee on appropriations has finally come up with what they're going to pass as far as -- their zero -- the '09 budget for the federal government. The good news is, we have four of your priority items from '09 with money in them, okay, and I expect that particular vote from the House and Senate to transpire sometime the middle of March and make it final. This is what we just got out of the omnibus appropriations bill filed from our Ferguson lobbyist that's up in -- up in Washington D.C. I just bring it to your attention. Five hundred seventy thousand dollars for I-75/Collier Boulevard, which is State Road 84, and that's basically interchange improvements; tech support for your emergency services center, 350,000; Gordon Pass dredging of 597,000. We received 130,000 before. We are about -- we are just a little less than a million dollars short, and you have that in your -- in your 10 appropriation, and that would close it out. Your healthcare access for $143,000. That's good news. That's all I have. CHAIRMAN FIALA: That's it, huh? Gee, this is usually an exciting time of the meeting when we hear all of the things that you have to tell us. Commissioner Coletta, do you have anything to talk about? COMMISSIONER COLETTA: I've got a couple, and I'll be very quick. The Environmental Advisory Council. We talked about redundancy within our system. I'd like to see if we can bring it back and to have it for a discussion at the next meeting regarding the suspension of the Environmental Advisory Council and putting their duties into the Planning Commission. COMMISSIONER HENNING: For what reason? Page 255 February 24, 2009 COMMISSIONER COLETTA: Just to -- for the sake of expediency. There's such -- there's so much redundancy, and there is quite a cost with the carrying costs for our staff having to monitor that particular function. COMMISSIONER HENNING: Yeah. COMMISSIONER COLETTA: It's been a recommendation I've got from quite a few different people. COMMISSIONER HENNING: And I agree, I mean, if we could save money, but we just created a new committee. We have to be aware of -- if we're taking away, we should be consistent, try to save money. So I go along with your support of you putting it back on the agenda for discussion. COMMISSIONER COLETTA: We still need three people to do it. CHAIRMAN FIALA: Well, I'll go along to put it back on the agenda. My fear is that I -- you know, I had somebody call me on that as well, probably the same one that called you. But -- and that's fine, but the thing is, how much more can the Planning Commission volunteer group handle? Right now they have -- you know, they focus on one thing and the other focuses on another, and I think each lends its expertise to that particular subject. That's like rolling the Productivity Committee in with the Environmental Advisory Board. COMMISSIONER COLETTA: I didn't suggest that. CHAIRMAN FIALA: No, I know that. But I mean, you know -- COMMISSIONER COLETTA: I want to make sure. CHAIRMAN FIALA: Two different subjects altogether. And so -- but I'm willing to discuss it. COMMISSIONER COLETTA: I appreciate that. CHAIRMAN FIALA: Commissioners? Oh, Coyle? COMMISSIONER COYLE: I don't even want to discuss it. You know, the point is that the people involved in the environmental Page 256 February 24, 2009 advisory functions have special areas of expertise. Our Planning Commission does not have specific slots for specific skills. So if you're going to combine the functions of the environmental advice and the Planning Commission, you're going to have to change the content of the Planning Commission so you've got the expert people on the Planning Commission to make the kinds of environmental decisions and recommendations that we would expect, and I think we can't do that right now. I think it's far better to let the environmental people specialize in that issue, deal with it separately, and let the Planning Commission do what they've been doing wonderfully well, and let's not complicate things too much. I think we've got more important things to talk about. CHAIRMAN FIALA: You know, it's nice to save money, but just like it's so hot in here that -- we've turned up all of our heat so that it's hot in the offices and everything, you can go -- you could save money so much that you, you know, kind of cut your nose off to spite your face. COMMISSIONER COLETTA: They're trying to get you to leave. CHAIRMAN FIALA: I think so. Commissioner Halas? COMMISSIONER HALAS: I have the same concerns that Commissioner Coyle has. I feel that the reason that they put this environmental committee together was to address issues, and we're here to represent all of the people in Collier County. And there are groups that are interested in making sure that the environment is taken care of, and I don't believe that the Planning Commission has all that expertise. So I think that the way that we have it lined at the present time, I think, is very protective of making sure that all points of view are brought forth. I have concerns that some day when we're going to get back on Page 257 February 24, 2009 our feet again, that we're going to have some serious issues, and they need to be addressed by the appropriate people who have that expertise. CHAIRMAN FIALA: Commissioner Coletta? COMMISSIONER COLETTA: Just briefly. The person that originally suggested it to me -- and I've been fielding the question out there -- is a very, very strong adequate of the environmental . community. I'm not going to go into detail. The person isn't here at this time. But I'm sure if the subject came up, they and some of the other people that are within the environmental community expressed their concerns about the way this committee's been going. CHAIRMAN FIALA: Maybe it just needs to -- the composition needs to be changed rather than obliterated. COMMISSIONER COLETTA: I don't know. I mean -- CHAIRMAN FIALA: We'll discuss it at a meeting. So we'll be bringing it back. Okay. Commissioner Henning? COMMISSIONER HENNING: I don't know ifhe's done. COMMISSIONER COLETTA: No, I am, I'm sorry. COMMISSIONER HENNING: Oh, are you done? COMMISSIONER COLETTA: Yes. Whenever I pause for five seconds, I'm done. CHAIRMAN FIALA: I quickly jump in. COMMISSIONER COLETTA: But I forget what I was saying. COMMISSIONER HENNING: Yeah. I had -- I brought those concerns about what the Environmental Advisory Board is addressing, and I think they're overreaching still at this time on land use issues versus environmental issues, and they just don't get it. But anyways, one -- actually, a couple things. The Board of Commissioners approved amending the Land Development Code not to expire SDPs or plats, to extend them out for a period of time. But the question for staff is, did that include -- well, in the sunsetting Page 258 February 24, 2009 provisions, you have two sunset periods. You come back and appeal to the Board of Commissioners and say, okay, I think there might be something out there. Does that include those, that they don't sunset? Okay. MR. MUDD: Your sunset on your PUDs is either three-year or five-year, depending on when they became effective -- I call it an old one versus a new one -- that the board directed -- I believe you directed -- and I'll go back and check -- not to sunset SDPs and whatnot for a period of time because of the economic condition. And I believe it was at the last meeting that you gave us direction to do so. It was either last meeting or the meeting before that. MR. SCHMITT: I can correct the record. Joe Schmitt, for the record. Yes, there was an LDC amendment to extend SDPs and plats. We had an LDC amendment that changed the life cycle of a PUD, and it's five years with one two-year extension. There are still some out there that had -- that were under the two different rules, but it's now five years with one two-year extension. There are several PUDs out there that are ready to expire, and -- COMMISSIONER HENNING: Without any extensions. MR. SCHMITT: Without any -- well, they either have -- they're going to exceed the time period where they can get an extension. The only way they can revive the PUD -- it stays, but there can be no local development order. They would have to come back in and do a PUD-to-PUD amendment to update the PUD to bring it back to life, for lack of better terminology or lack of a better description. So there is nothing other than the five-year -- five-year for a PUD and a two-year window. They can keep that PUD open for 20 years if they have then maintain and sustain a certain level of development. That's the issue. There are several out there that haven't done much. COMMISSIONER HENNING: And I wonder why. MR. SCHMITT: Well -- yeah, we all know why. COMMISSIONER HENNING: Right. So I think it's going to be Page 259 February 24, 2009 fair of these ones to be sunsetted, these PUDs, that we need to have some kind of provision so they don't sunset. The reason that they're sunsetting, because there's no stimulus plan for them. There's no earmarks in the stimulus plan, and it's going to be a while, Commissioners, before we get these -- all the units -- COMMISSIONER COLETTA: I agree. I like what you're . saYIng. COMMISSIONER HENNING: Yeah. We need some kind of provisions to -- COMMISSIONER COLETTA: To extend it-- COMMISSIONER HENNING: -- to extend those that don't have any provisions to come back to ask for further extensions. MR. SCHMITT: Understand. There was -- the purpose for the PUD sunsetting was to make those PUDs come back in front of the board to be reviewed, to update, to look at any developer commitments and, of course, now things have changed. And certainly, it isn't certainly in the developer's best interest to have some kind of a program that would further extend those. It would include having to come back and go through the PUD amendment process. And if that's your desire, we'll look at it and come back with a recommendation. COMMISSIONER HENNING: I'd like that. MR. SCHMITT: It would probably require some kind of an LDC amendment, because the last cycle we changed that and we changed that -- two different provisions, and I don't have the exact dates. It was something like before 1998, you had so many -- but now it's a five-year, two-year window. That's five years, and then a two-year renewal, and that's it. So we'll come back with a recommendation. CHAIRMAN FIALA: Okay. COMMISSIONER HENNING: I'm sorry, Commissioner Fiala. CHAIRMAN FIALA: Sure. COMMISSIONER COLETTA: When Commissioner Henning finished -- I was through with that one item, I did have a couple really Page 260 February 24, 2009 short ones. COMMISSIONER HENNING: I knew -- I knew he wasn't finished. CHAIRMAN FIALA: Did you -- COMMISSIONER COLETTA: No. I was done with that item. I just wanted to give you a chance to respond to it. I thought that's what you wanted to do. Go ahead, though. Finish, since you've got the floor. COMMISSIONER HENNING: Oh, I yield my time to you. COMMISSIONER COLETTA: Oh, thank you. I've got twice as much time as I had at the beginning. Before we had a discussion back about a month or so ago, remember John Barlow and Productivity Committee? And I guess the direct -- I misunderstood what the directions were that were given to the county attorney, but I would like to revisit that idea of how many votes it takes to -- we put a person back on after three terms. Is there any interest by any other commissioners in that? I see Fred Coyle nodding his head and I see Donna nodding hers. We've got four commissioners that are telling you to go ahead and bring it back. MR. KLATZKOW: We'd have to change the ordinance. If that's what you want, we'd have to change the ordinance. COMMISSIONER COLETTA: Whatever's the easiest way to be able to get this done so we can be able to have responsible people on these boards. MR. KLATZKOW: You're asking me to change the ordinance. Do you want majority or supermajority for these, extension of more than two terms, or do you want to get rid of the two-term drop-dead date entirely? COMMISSIONER COLETTA: Personally, I don't see what the advantage is of having them limited to terms. If anybody's willing to volunteer their time and we get to vote on them every time when they come up, I would just -- that would be the easiest, but maybe you can Page 261 February 24, 2009 give us a couple options rather than delay this. Yes, Sue? MS. FILSON: I have appointments for that committee on the agenda for March the 10th, and Mr. Barlow did submit his application; however, he's withdrawn due to the provision in the ordinance. You may want to direct me to wait till he brings the ordinance back to bring those appointments. COMMISSIONER COLETTA: I'd like to include that direction in this motion, or is it just direction to staff, not making a motion? MR. MUDD: All you have to do is direct staff, sir. I need three nods. COMMISSIONER COLETTA: Okay. CHAIRMAN FIALA: I think you've got four. MR. MUDD: Yeah, four nods. COMMISSIONER COLETTA: No. I'm concerned. I heard Commissioner Fiala also express some of her concerns over developmental services, how we're stripping these people. I mean, I realize that everything is tied into a revenue stream that's coming in to keep them in place. Is there some way we might be able to make adjustments as far as how we take some people from there if we have to move them, move them to other departments? Also, too -- and I know this is going to be probably considered a mortal sin to say, but I'm going to say it anyway. Lee County pays 30 percent of their developmental services fees right out of the general fund. Not that we'd ever go to that point. Calm down, Commissioner Henning. But I'm very concerned about the institutional knowledge that we're losing. When this thing starts to ramp up again and we're hoping -- we know there's going to be a recovery. We know it's not going to be that far off. We're going to have a hard time putting everything back together again with the personnel we're losing. Any -- are my concerns well-founded or is this the wrong Page 262 February 24, 2009 direction to be going at this point in time? Do you even want to discuss it? MR. MUDD: Commissioner, the one thing that I didn't tell you during the budget preparation -- because we're talking about next year's budget. I need to come back to this board with a budget amendment for this year. We're $7.2 million upside-down this year on sales tax revenue sharing and our estimate of what people aren't -- we kind of hit upon it, about $53 million shy. Our estimates are going to be about $4 million shy. We've got 'er down to $7.2 million. I've gone out to the constitutional officers based on the pie formula, you know, the '04 issue, and I've also gone to our staff and basically told them, we need to find those dollars to make up the $7.2 million. That's out there right now, and staff is working on that particular request so I can bring that board -- back to the Board of County Commissioners to adjust the budget this year. So we're working on that. CHAIRMAN FIALA: Let me jump in for a minute and tell you that the Supervisor of Elections office called me last night actually on every phone I had to tell you that she's already working on that. She's got your budget guidance, and she is -- she is working on reducing her budget. So -- and I promised her I would say that on the record. MR. MUDD: They're all-- everybody's trying in this regard. Everybody understands we're not getting the sales tax that we're -- that we used to get from the state. The really depressing part on that is when we came up with our estimates, we went 18 percent below what the state told us they were going to get. They've exceeded my expectations about not giving us sales tax. And I believe that's the problem that the governor's having, along with the state legislators right now, trying to figure out how they're going to make it through the rest of this year, even though as Page 263 February 24, 2009 they start session, they're still going to have to make a budget cut to get through the first of July. But in the -- in regard to what Commissioner Coletta talked about, one of the things that I've asked Mr. Schmitt to do when we come forward with our budget guidance this year is to -- is to identify what the fee structures need to be. We haven't raised the fee structures from -- through '03, from FY03. That needs to be done. You've seen some communi cas from different folks that say, hey, the fee structures with the amount of inspections you do for the project doesn't cover what you want to do, and I can show you that em ail if you didn't get it. I've told him to do that, and he will come forward as part of the budget process to talk about what those fees need to be. If the board wants us to take a look at ad valorem -- an ad valorem subsidy or a 111 subsidy for that particular organization, we can talk about that also as far as the budget -- as far as the budget process is concerned, and we can take a look at that, too. COMMISSIONER COLETTA: Mr. Mudd, is there any possibility there will be turnback money that we could all just forego and just put it back into the budget and keep our employees in place? MR. MUDD: We're long gone with turnback money, sir. . CHAIRMAN FIALA: How about Indian money? When is that supposed to come through? MR. MUDD: Ma'am, we don't -- it's got to get passed first. As soon as we get it -- as soon as we get it passed, then we'll start counting our chickens, okay. But right now, we don't -- we don't have a thing yet. So -- and oh, by the way, the governor's very, very particular about how much they're going to give him up front as far as his initial shot's going to be, and they're going to have to make up through that $250-million mark before you ever get to see a dime of that. CHAIRMAN FIALA: I see. Page 264 February 24, 2009 Commissioner Halas? COMMISSIONER HALAS: Yeah. I would think that -- it seems that our governor is pretty tight with the President of the United States and that he might be able to get some additional revenues down here to the State of Florida. I know he's up there trying to make sure that he's got -- he's shoring up his budget. It would be nice if he would shore up some of the counties down here in the State of Florida. COMMISSIONER COLETTA: Commissioner Fiala, thanks for the time you allotted me. I really do appreciate it. Believe it or not, I'm through this time. CHAIRMAN FIALA: Okay. Anything else, Commissioner Henning? COMMISSIONER HENNING: No. CHAIRMAN FIALA: Okay. Commissioner Coyle? COMMISSIONER COYLE: Nothing. CHAIRMAN FIALA: Commissioner Halas? COMMISSIONER HALAS: Nothing. CHAIRMAN FIALA: Okay. I just have something little, and this is also for Joe Schmitt and all. I've already talked to Joe about it, and that is, I was wondering if we could possibly relax the three public hearing rule possibly, somehow to -- on our agendas we keep them to a minimum -- or a maximum of three, and if there's -- if there's anybody that's wanting to build out there and has an opportunity and we can help them to save a little bit of money, maybe we could relax that. And I spoke to Joe about that already. And so I was wondering if we could bring that back, you know -- COMMISSIONER COLETTA: I don't understand. CHAIRMAN FIALA: We're only -- we're only allowed three public hearings. Not allowed. Let me just say that we limit it to three public hearings on an agenda in order to keep things under control so Page 265 February 24, 2009 we don't have too much to discuss at any meeting, but sometimes there are others to discuss and -- I mean, we don't mind lopping it over to the next day if that is going to save somebody a few thousand dollars and get people working. COMMISSIONER COLETTA: I'm willing to meet for as long as it takes to get everybody through. CHAIRMAN FIALA: I know. Sue? MR. MUDD: I don't know -- we still have -- you still have the advertisement costs and everything else that you have to do for the particular requirement, okay. And I haven't constrained yet -- and, oh, by the way, Mr. Klatzkow goes to those meetings, and the only constraint I've got is I don't like to see five on the regular agenda for you, and we try to see how that's going to work out, just so it doesn't tie it up. I believe this has to do with a requirement that you have for public hearings for prior to the PUD. You have two right now that are going in front of the Planning Commission, plus you have -- so if I have a PUD that's got an environmental consequence to it, you've got the EAC public hearing, you've got two in the PU- -- in the Planning Commission, one is regular. If there's any changes, they ask it to come back at the consent, and then you've got one that comes here for -- there's a total of four. MR. KLATZKOW: I've got to tell you, I mean, I sit on the -- I sit with the Planning Commission, and the only thing I'm seeing these days there are conditional uses with churches. We're not backed up on development. CHAIRMAN FIALA: Oh, okay. MR. KLA TZKOW: That's just not happening, ma'am. And you're not seeing a lot of land use, because the Planning Commission's being unanimous on these. CHAIRMAN FIALA: Oh, okay, fine. I had just gotten this request from somebody in the development community, and so I Page 266 February 24, 2009 brought it forth. Thank you. All right. And with that, gentlemen. COMMISSIONER HENNING: Motion to adjourn. COMMISSIONER COLETTA: Second. CHAIRMAN FIALA: We have a motion and a second to adjourn. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye. CHAIRMAN FIALA: Meeting's adjourned. ***** * * * *Commissioner Halas moved, seconded by Commissioner Coyle and carried 4/1 (Commissioner Henning opposing), that the following items under the Consent and Summary Agendas be approved and/or adopted * * * * Item #16A1 RESOLUTION 2009-38: ESTABLISHING THE HORIZON STUDY OVERSIGHT COMMITTEE AS PROVIDED FOR DURING THE JANUARY 13. 2009 BCC PUBLIC HEARING Item #16A2 FINAL ACCEPTANCE OF THE WATER AND SEWER UTILITY Page 267 February 24, 2009 FACILITIES FOR CHASE PRESERVE OF LEL Y RESORT - W/RELEASE OF ANY UTILITIES PERFORMANCE SECURITY Item #16A3 INCREASE THE TIME FRAME ASSOCIATED WITH THE CONTRACT TO ALLOW FOR THE VAN BUSKIRK, RYFFEL & ASSOCIATES TO PROVIDE THE UPDATING OF THE BASELINE PARCEL DATA REFLECTING THE LAND USE CHANGES APPROVED FROM JANUARY 2007 THROUGH MARCH 2009 - CHANGE ORDER #4 TO CONTRACT #45-88581 IS FOR A TIME FRAME INCREASED FROM FEBRUARY 27, 2009 TO JANUARY 1. 2010 Item #16A4 RECORDING THE FINAL PLAT OF AMADOR AT FIDDLERS CREEK - DEVELOPER MUST RECEIVE A CERTIFICATE OF ADEQUATE PUBLIC FACILITIES PRIOR TO THE ISSUANCE OF THE FINAL APPROVAL LETTER Item # 16A5 FINAL ACCEPTANCE OF THE WATER AND SEWER UTILITY FACILITIES FOR FALLS OF PORTOFINO - W/RELEASE OF ANY UTILITIES PERFORMANCE SECURITY Item #16A6 FINAL AND UNCONDITIONAL CONVEYANCE OF THE WATER UTILITY FACILITY FOR LA PLAYA BEACH RESORT - W/RELEASE OF ANY UTILITIES PERFORMANCE SECURITY Page 268 February 24, 2009 Item #16A7 FINAL ACCEPTANCE OF THE WATER AND SEWER UTILITY FACILITIES FOR COTTESMORE - W/RELEASE OF ANY UTILITIES PERFORMANCE SECURITY Item #16B1 AWARDING BID #09-5180 FOR CONSTRUCTION OF BA YSHORE DRIVE AND THOMASSON DRIVE STORMWATER IMPROVEMENTS, PROJECT NO. 51134.1, TO KYLE CONSTRUCTION, INC. IN THE AMOUNT OF $59,153.20 PLUS A TEN PERCENT CONTINGENCY, AND TO APPROVE THE NECESSARY BUDGET AMENDMENT - FOR CLEARING AND GRUBBING, DITCH REALIGNMENT AND CONSTRUCTION OF AN ACCESS MAINTENANCE PATHWAY Item #16B2 PROGRAM MANAGEMENT PLAN (PMP) OUTLINING THE PROJECTS THAT WILL BE ELIGIBLE FOR FEDERAL TRANSIT ADMINISTRATION #5316 & #5317 PROGRAM GRANTS - FOR THE FOLLOWING PROJECTS: EXTENDED SERVICE HOURS, INCREASED ROUTES, GEOGRAPHICAL SERVICE CONNECTIONS, INCREASED FREQUENCY IN TRANSIT SERVICE AND ADDITIONAL BUS SHEL TERS/BENCHES Item #16B3 CHANGE ORDER NO.1 TO PROFESSIONAL SERVICE Page 269 February 24, 2009 AGREEMENT NO. 07-4133 IN THE AMOUNT OF $120,460.20 WITH PB AMERICA, INC., FOR THE DESIGN OF NORTHBROOKE DRIVE IMPROVEMENTS FROM NORTHERN TERMINUS OF THE BRIDGE TO MILL CREEK ROAD AND V ALEWOOD DRIVE EXTENSION FROM IMMOKALEE ROAD TO AUTUMN OAKS LANE, PROJECT NO. 60106 - CHANGES WILL ADD SIDEWALK CONTINUITY WITHIN THE EXISTING RESIDENTIAL AND COMMERCIAL COMMUNITY AS WELL AS INCREASING TURN LANE CAPACITY Item #16B4 AMENDMENT TO THE 2008 TRANSPORTATION DISADVANTAGE SERVICE PLAN (TDSP) TO ALLOW FOR JOINT MEETINGS BETWEEN COLLIER AND LEE COUNTY LOCAL COORDINATING BOARDS (LCB) - THIS MULTI- YEAR PLAN IS REQUIRED IN ORDER TO MAINTAIN ELIGIBILITY FOR STATE FUNDING AND WILL BE USED TO DEVELOP INTRA-COUNTY POLICIES Item #16B5 RESOLUTION 2009-39: TRANSPORTATION POST PROJECT MAINTENANCE AGREEMENT WITH THE FLORIDA DEPARTMENT OF TRANSPORTATION (FDOT), FOR THE MAINTENANCE OF A PEDESTRIAN BRIDGE AND GUARDRAIL "SAFE TO SCHOOL PROJECT" ON 20TH PLACE SW BETWEEN 50TH STREET SW AND 50TH TERRACE SW Item #16Cl PROPOSAL NUMBER 09-5151 FIXED TERM Page 270 February 24, 2009 INSTRUMENTATION AND CONTROLS ENGINEERING SERVICES - TERMS WILL BE FOR ONE YEAR WITH THE OPTION OF THREE ADDITIONAL ONE YEAR PERIODS; FOUR FIRMS WERE RECOMMENDED: CAMP DRESSER & MCKEE, INC., HAZEN AND SAWYER, P.C., RKS CONSULTING ENGINEERS. INC.. AND EMA. INC. Item # 16C2 AMENDMENT #A01 TO THE EXISTING AGREEMENT NO. ML070554 BETWEEN THE COUNTY AND THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT THAT WILL REDUCE THE FISCAL YEAR 2009 FUNDING BY $43,227, AND TO APPROVE THE ASSOCIATED BUDGET AMENDMENT- THE REDUCTION INCLUDES REMOVING THE PARAMETERS (FLUORIDE, TOTAL COLIFORM AND TOTAL DISSOLVED SOLIDS) FROM THE CURRENT MONITORING PLAN Item #16D1 - Moved to Item #10F (Per Agenda Change Sheet) Item # 16D2 AWARD BID NO. 09-5166, EAST NAPLES COMMUNITY PARK SOCCER FIELD, AT A COST OF $529,364.63 TO PROFESSIONAL BUILDING SYSTEMS - PLUS A 10% CONTINGENCY Item #16D3 TEN (10) LIEN AGREEMENTS FOR DEFERRAL OF 100% OF COLLIER COUNTY IMPACT FEES FOR OWNER-OCCUPIED AFFORDABLE HOUSING DWELLING UNITS LOCATED IN Page 271 February 24, 2009 COLLIER COUNTY - TOTALING $196,767.84 IN IMPACT FEES, ALL AGREEMENTS ARE WITH HABITAT FOR HUMANITY FOR PROPERTY LOCATED IN THE LIBERTY LANDING SUBDIVISION IN IMMOKALEE AND TRAIL RIDGE SUBDIVISION IN NAPLES - THE FOLLOWING RECEIVED IMPACT DEFERRAL FEES: MARIA Del CARMEN SANCHEZ HERNANDEZ $22,325.96; MIREILLE MELLIEN $19,372.46; MARICELA TREJO MENDIETA $19,372.46; FLORISELVA D. ZELAYA $19,372.46; MAX JULMISTE $19,372.46; CARNICIEN & ANNE PRUSSIEN $22,325.96; CHRISTINA V. HERNANDEZ $22,325.96; CARLA S. VIACA V A $22,325.96; JAVIER ALVAREZ $14,987.08; LEONARDO HERNANDEZ ORTIZ & BlANEY HERNANDEZ $14.987.08 Item #16D4 SUMMARY OF THE IMPACT FEE DEFERRAL AGREEMENTS RECOMMENDED FOR APPROVAL IN FY09, INCLUDING THE TOTAL NUMBER OF AGREEMENTS APPROVED, THE TOTAL DOLLAR AMOUNT DEFERRED AND THE BALANCE REMAINING FOR ADDITIONAL DEFERRALS IN FY09 - AS DETAILED IN THE EXECUTIVE SUMMARY Item #16D5 SEVEN (7) DEVELOPER LIEN AGREEMENTS FOR DEFERRAL OF 100% OF COLLIER COUNTY IMPACT FEES FOR OWNER- OCCUPIED AFFORDABLE HOUSING UNITS LOCATED IN COLLIER COUNTY - DEFERRING $192,834.88 IN IMPACT FEES, ALL AGREEMENTS ARE WITH HABITAT OF HUMANITY SUBDIVISIONS; NAPLES MANOR LAKES AND LIBERTY LANDING - THE FOLLOWING LOTS AND BLOCKS Page 272 February 24, 2009 RECEIVED IMPACT DEFERRALS: NAPLES MANOR LAKES LOT 14, BLOCK 14 $29,641.30; NAPLES MANOR LAKES LOT 15, BLOCK 14 $29,641.30; NAPLES MANOR LAKES LOT 16, BLOCK 14 $29,641.30; NAPLES MANOR LAKES LOT 26, BLOCK 3 $29,641.30; NAPLES MANOR LAKES LOT 25, BLOCK 3 $29,641.30; NAPLES MANOR ADDITION LOT 18, BLOCK 6 $29.641.30: LIBERTY LANDING LOT 64 $14.987.08 Item #16D6 EXPENDITURE OF HOUSING AND URBAN DEVELOPMENT (HUD) FUNDS IN THE AMOUNT OF $84,375.00 FOR THE GOLDEN GATE SENIOR MEALS PROGRAM WHICH IS ADMINISTERED BY THE DEPARTMENT OF HOUSING AND HUMAN SERVICES (HHS). THIS PROGRAM IS AN EXPANSION TO AN EXISTING HHS PROGRAM WHICH PROVIDES NUTRITIOUS MEALS TO LOW-INCOME SENIORS IN COLLIER COUNTY - FUNDING TO BE USED TO PAY SALARY AND BENEFITS FOR A SITE COORDINATOR AND FOR A PROGRAM ASSISTANT HIRED FOR 32 HOURS PER WEEK WITH NO HEALTH BENEFITS Item #16D7 AGREEMENT BETWEEN COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS AND THE PHYSICIAN LED ACCESS NETWORK (PLAN) IN THE AMOUNT OF $50,000 TO PROVIDE MEDICAL REFERRAL SERVICES FOR LOW- INCOME RESIDENTS IN COLLIER COUNTY - TO BE FUNDED FROM THE LOW INCOME POOL PROGRAM (LIP) FROM JANUARY 1. 2009 THROUGH DECEMBER 31. 2009 Page 273 February 24, 2009 Item #16D8 AWARD REQUEST FOR QUOTATION #09-PR-GGCP-WS GOLDEN GATE COMMUNITY PARK WATER SLIDE UNDER CONTRACT #06-3971 ANNUAL CONTRACT FOR GENERAL CONTRACTOR SERVICES, IN THE AMOUNT OF $296,971 TO PROFESSIONAL BUILDING SYSTEMS FOR REPLACEMENT OF EXISTING STRUCTURE AT GOLDEN GATE COMMUNITY P ARK AQUA TIC CENTER - TO REPLACE THE WATER SLIDE DUE TO AGE. TO ENSURE PUBLIC SAFETY Item #16D9 PAST EXPENSES FOR NON-ETHANOL GASOLINE FOR COUNTY PARKS AND MARINAS, FOR OUTSTANDING INVOICES TO EVAN'S OIL COMPANY TOTALING $62,826.60 THA T NEED TO BE PAID BEFORE THE ADDITION OF NON- ETHANOL - FOR FUEL THAT PARKS AND RECREATION RECEIVED AND SOLD Item #16DI0 WAIVE THE FORMAL COMPETITIVE PROCESS AND APPROVE AND AUTHORIZE THE CHAIRMAN TO SIGN AN AGREEMENT FOR $160,000 WITH THE HEALTH PLANNING COUNCIL OF SOUTHWEST FLORIDA AS A SOLE SOURCE PROVIDER FOR A HEALTH INFORMATION TECHNOLOGY PROJECT IN CONJUNCTION WITH THE PHYSICIAN LED ACCESS NETWORK (PLAN) - TO PROCURE THE NECESSARY CONTRACTORS TO IMPLEMENT THE TECHNICAL SCOPE OF THE INFORMATION NETWORK PROVIDING AN EFFICIENT METHOD OF HEALTH CARE SERVICES FOR THE Page 274 February 24, 2009 COUNTY'S UNINSURED POPULATION ENDING FEBRUARY 23.2010 Item #16E1 SAFE HARBOR AGREEMENT WITH THE U.S. FISH AND WILDLIFE SERVICE FOR SPECIALIZED MANAGEMENT OF THE CONSERVATION COLLIER NANCY PAYTON PRESERVE - TO IMPLEMENT SPECIFIC MANAGEMENT ACTIVITIES THAT WOULD PROVIDE A NET CONSERVATION BENEFIT TO THE ENDANGERED RED COCKADED WOODPECKER AND MAY ALSO BECOME A RELOCATION SITE FOR ANY OTHER BIRDS THAT NEED RELOCATING FROM OTHER COUNTY PROPERTIES Item #16E2 AGREEMENT FOR SALE AND PURCHASE WITH EDWARD J. TAUBER AND MARY P. TAUBER FOR 5.0 ACRES UNDER THE CONSERVATION COLLIER LAND ACQUISITION PROGRAM, AT A COST NOT TO EXCEED $80,300 - FOR PROPERTY LOCATED WITHIN THE RED MAPLE SWAMP PRESERVE MULTI PARCEL PROJECT IN GOLDEN GATE ESTATES. UNIT 53 Item #16E3 SALE AND PURCHASE WITH JUAN REY FOR 5.66 ACRES UNDER THE CONSERVATION COLLIER LAND ACQUISITION PROGRAM, AT A COST NOT TO EXCEED $91,100 - FOR PROPERTY LOCATED WITHIN THE RED MAPLE SWAMP PRESERVE MULTI PARCEL PROJECT IN GOLDEN GATE Page 275 February 24, 2009 ESTATES. UNIT 53 Item #16E4 SALE AND PURCHASE WITH JULIO C. PONCE FOR 1.14 ACRES UNDER THE CONSERVATION COLLIER LAND ACQUISITION PROGRAM, AT A COST NOT TO EXCEED $19,300 - FOR PROPERTY LOCATED WITHIN THE WINCHESTER HEAD MULTI PARCEL PROJECT IN GOLDEN GATE ESTATES. UNIT 65 Item #16E5 SALE AND PURCHASE WITH ORLANDO PACHECO FOR 2.27 ACRES UNDER THE CONSERVATION COLLIER LAND ACQUISITION PROGRAM, AT A COST NOT TO EXCEED $37,900 - FOR PROPERTY LOCATED WITHIN THE WINCHESTER HEAD MULTI PARCEL PROJECT IN GOLDEN GATE ESTATES. UNIT 65 Item #16E6 AGREEMENT TO PROVIDE A MAXIMUM EXPENDITURE OF $28,746 FROM THE GAC LAND TRUST FUND TO THE BIG CORKSCREW ISLAND FIRE CONTROL AND RESCUE DISTRICT FOR THE PURCHASE OF FIRE SHELTERS AND EQUIPMENT - SERVING THE RESIDENTS OF GOLDEN GATE ESTATES Item #16E7 CHANGE IN WASTEWATER TREATMENT SERVICE FOR THE Page 276 February 24, 2009 COLLIER COUNTY GOVERNMENT COMPLEX FROM THE CITY OF NAPLES TO THE COLLIER COUNTY W A TER- SEWER DISTRICT AND TO APPROVE THE INTERLOCAL SERVICE AGREEMENT AND ACCORD AND SATISFACTION WITH THE CITY OF NAPLES TO SUPERSEDE AN EXISTING 1977 INTERLOCAL AGREEMENT, AS AMENDED - THE COUNTY GOVERNMENT COMPLEX DIDN'T HAVE W ASTEW A TER SERVICE WHEN THE INTERLOCAL WAS SIGNED, AND SHADOWLAWN ELEMENTARY ALSO RECEIVES CITY WASTEWATER SERVICE Item #16E8 - Moved to Item #10G (Per Agenda Change Sheet) Item #16F1 BUDGET AMENDMENTS - #309-178 FOR OPERATING EXPENSES Item #16F2 RESOLUTION 2009-40: APPROVING AMENDMENTS (APPROPRIATING GRANTS, DONATIONS, CONTRIBUTIONS OR INSURANCE PROCEEDS) TO THE FISCAL YEAR 2008-09 ADOPTED BUDGET Item # 16F3 AWARD BID #09-5175 FOR HORTICULTURE DEBRIS HAULING AND DISPOSAL TO COUNTY WASTE. INC Item #16F4 Page 277 February 24, 2009 SOUTHWEST FLORIDA CONSORTIUM 2009 LEGISLATIVE PRIORITIES WHICH WILL BE PRESENTED BY PARTICIPATING COUNTY COMMISSIONERS TO LEGISLATIVE DELEGATION MEMBERS IN TALLAHASSEE THROUGHOUT THE 2009 LEGISLATIVE SESSION - THE TOPICS WERE AS FOLLOWS: ECONOMIC STIMULUS/DEVELOPMENT, SUPPORTING COMMUNITY BASED GOVERNANCE/HOME RULE. OPPOSE NEW REVENUE AND EXPENDITURE CAPS, SUPPORTING AMENDING CONSULTANTS COMPETITIVE NEGOTIATION ACT. AND SUPPORTING REVENUE ENHANCEMENTS Item #16G1 - Moved to Item #14B (Per Agenda Change Sheet) Item # 16G2 BUDGET AMENDMENT IN THE AMOUNT OF $1,495,000.00 TO RECOGNIZE USDA GRANT REVENUE IN THE AMOUNT OF $495,000.00 AND TRANSFER $1,000,000.00 FROM AIRPORT AUTHORITY RESERVES TO THE PROJECT FOR THE CONSTRUCTION OF A 20,000 SQUARE FOOT MANUFACTURING FACILITY AT THE IMMOKALEE REGIONAL AIRPORT Item #16G3 SITE IMPROVEMENT GRANT AGREEMENT(S) BETWEEN THE COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY (CRA) AND A GRANT APPLICANT(S) WITHIN THE BA YSHORE GA TEW A Y TRIANGLE COMMUNITY REDEVELOPMENT AREA (2255 DAVIS BOULEVARD) - COMMITTING $17,500 DUE TO PREVIOUSLY APPROVED Page 278 February 24, 2009 APPLICANTS AFTER THE SATISFACTION OF ALL GRANT STIPULATIONS. THE SITE IMPROVEMENT GRANT WAS SUBMITTED BY THE OWNER. THE SALVATION ARMY Item #16G4 SHORELINE STABILIZATION GRANT AGREEMENT(S) BETWEEN THE COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY AND A GRANT APPLICANT(S) WITHIN THE BA YSHORE GA TEW A Y TRIANGLE COMMUNITY REDEVELOPMENT AREA (2772 RIVERVIEW DRIVE) - SUBMITTED BY WILLIAM C. KING OWNER OF THE PROPERTY ($5.000.00) Item #16G5 SHORELINE STABILIZATION GRANT AGREEMENT(S) BETWEEN THE COLLIER COUNTY COMMUNITY REDEVELOPMENT AGENCY AND A GRANT APPLICANT(S) WITHIN THE BA YSHORE GA TEW A Y TRIANGLE COMMUNITY REDEVELOPMENT AREA (2736 RIVERVIEW DRIVE) - SUBMITTED BY WILLIAM C. KING OWNER OF THE PROPERTY ($5.000.00) Item #16G6 APPLICATION AND RECIPIENT AGREEMENT FOR THE IMMOKALEE COMMUNITY REDEVELOPMENT AGENCY (CRA) COMMERCIAL FACADE IMPROVEMENT GRANT PROGRAM FOR REIMBURSEMENT OF $20,000 FOR B&B CASH GROCERY STORES, INC. FOR IMPROVEMENT TO THE HANDY FOOD STORE #92 LOCATED AT 401 SOUTH FIRST Page 279 February 24, 2009 STREET IN IMMOKALEE. FLORIDA Item #16H1 COMMISSIONER FIALA'S REIMBURSEMENT FOR ATTENDING A FUNCTION SERVING A VALID PUBLIC PURPOSE. SHE WILL ATTEND THE FOURTH ANNUAL FASHION SHOW AND SILENT AUCTION ON MARCH 20, 2009 AT THE CLUB AT THE STRAND IN NAPLES, FL. $80.00 TO BE P AID FROM COMMISSIONER FIALA'S TRAVEL BUDGET - LOCATED AT 5840 STRAND BOULEVARD. NAPLES Item #16H2 COMMISSIONER COLETTA'S REIMBURSEMENT FOR ATTENDING A FUNCTION SERVING A VALID PUBLIC PURPOSE. COMMISSIONER COLETTA ATTENDED THE ITALIAN AMERICAN SOCIETY OF SOUTH WEST FLORIDA REVERSE RAFFLE AND COLLEGE SCHOLARSHIP FUNDRAISER ON FEBRUARY 22,2009 AT THE COUNTRY CLUB OF NAPLES. $100 DONATION BENEFITS LOCAL STUDENTS FOR COLLEGE SCHOLARSHIPS AND ADMITS TWO. $50 TO BE PAID FROM COMMISSIONER COLETTA'S TRAVEL BUDGET - LOCATED AT 185 BURNING TREE DR, NAPLES Item #16H3 COMMISSIONER COLETTA'S REIMBURSEMENT FOR ATTENDING A FUNCTION SERVING A VALID PUBLIC PURPOSE. COMMISSIONER COLETTA ATTENDED THE BOY SCOUTS OF AMERICA SOUTHWEST FLORIDA COUNCIL Page 280 February 24, 2009 EXECUTIVE BOARD (MEMBER) RETREAT IN FORT MYERS ON JANUARY 24,2009, $5 LUNCHEON TO BE PAID FROM COMMISSIONER COLETTA'S TRAVEL BUDGET - LOCATED AT 1801 BOY SCOUT DRIVE. FT. MYERS Item #1611 MISCELLANEOUS ITEMS TO FILE FOR RECORD WITH ACTION AS DIRECTED The following miscellaneous correspondence, as presented by the Board of County Commissioners, has been directed to the various departments as indicated: None Submitted for the BCC Meeting of February 24, 2009 per Agenda Page 281 February 24, 2009 Item #16J1 DISBURSEMENTS FOR THE PERIOD OF JANUARY 30, 2009 THROUGH FEBRUARY 06, 2009 AND FOR SUBMISSION INTO THE OFFICIAL RECORDS OF THE BOARD Item # 16J2 DISBURSEMENTS FOR THE PERIOD OF FEBRUARY 7, 2009 THROUGH FEBRUARY 13, 2009 AND FOR SUBMISSION INTO THE OFFICIAL RECORDS OF THE BOARD Item #16K1 PURCHASE ORDER INCREASE EXCEEDING $50,000 FOR THE SANTA BARBARA BOULEVARD EXTENSION PROJECT (PROJECT NO. 60091) W/RWA CONSULTING, INC. IN ACCORDANCE WITH THE COLLIER COUNTY PURCHASING POLICY (FISCAL IMPACT $50,000) - CURRENTLY THERE ARE 12 PARCELS IN DISPUTE AND THE COUNTY'S ANTICIPATING THEM GOING TO TRIAL Item #16K2 APPLICATION FOR TAX DEEDS FOR THIRTY-TWO (32) COUNTY-HELD TAX CERTIFICATES AND THE FORWARDING OF A WRITTEN NOTICE TO PROCEED WITH TAX DEED APPLICATIONS TO THE TAX COLLECTOR - AS DETAILED IN THE EXECUTIVE SUMMARY Item #16K3 - Moved to Item #12A (Per Agenda Change Sheet) Page 282 February 24, 2009 Item # 1 7 A RESOLUTION 2009-41: VA-2008-AR-13756, LEE WYATT, REPRESENTED BY LAUREN BARBER OF TURRELL AND ASSOCIATES, IS REQUESTING A FRONT YARD SETBACK VARIANCE FOR PRINCIPAL STRUCTURES IN THE MOBILE HOME (MH) ZONING DISTRICT FROM 25 FEET TO 16 FEET, AS REQUIRED BY LAND DEVELOPMENT CODE (LDC) SECTION 4.02.01, SETBACKS FOR BASE ZONING DISTRICTS, TO PERMIT A NINE-FOOT SETBACK; AND A SITE AL TERA TION VARIANCE TO IMP ACT MANGROVES, PURSUANT TO LDC SUBSECTION 9.04.02.B.1. THE APPROXIMATELY 0.14-ACRE SUBJECT PROPERTY IS LOCATED ON LOT 77, OTTER AVENUE, IN PLANTATION ISLAND, OF SECTION 24, TOWNSHIP 53 SOUTH, RANGE 29 EAST. COLLIER COUNTY. FLORIDA. CTS Item #17B ORDINANCE 2009-04: (CPSP-2007-6) PETITION REQUESTING AN AMENDMENT TO THE POTABLE WATER SUB-ELEMENT OF THE PUBLIC FACILITIES ELEMENT OF THE GROWTH MANAGEMENT PLAN (GMP), TO ADD REFERENCE IN POLICY 1.7 TO THE PROPOSED TEN-YEAR WATER SUPPLY FACILITIES WORK PLAN; APPROVE THE 10-YEAR WATER SUPPL Y FACILITIES WORK PLAN AS PROPOSED; AND DIRECT STAFF TO IMPLEMENT THE CCPC'S RECOMMENDATIONS (ADOPTION HEARING) Item #17C ORDINANCE 2009-05; AN ORDINANCE AMENDING Page 283 February 24, 2009 ORDINANCE NO. 2002-27, AS AMENDED, WHICH CREATED THE PELICAN BAY MUNICIPAL SERVICE TAXING AND BENEFIT UNIT, BY PROVIDING FOR WAIVER OF MAIL BALLOT REQUIREMENTS IN THE EVENT THE NUMBER OF NOMINEES FOR APPOINTMENT TO THE PELICAN BAY SERVICES DIVISION BOARD IN A PARTICULAR CATEGORY DOES NOT EXCEED THE NUMBER OF OPEN POSITIONS FOR THAT CATEGORY Page 284 - February 24, 2009 There being no further business for the good of the County, the meeting was adjourned by order of the Chair at 6:42 p.m. BOARD OF COUNTY COMMISSIONERS BOARD OF ZONING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL DISTRICTS UNDER ITS CONTROL @.~" ~~ DONNA! FIALA, Chairman At. st..~s toi~~;" ,191latu"t On".. ... These minutes approved by the Board on presented V or as corrected , as TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICES, INC., BY TERRI LEWIS. Page 285