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BCC Minutes 04/19/1995 S (LDC Amendments) SPECIAL MEETING OF APRIL 19, 1995, OF THE BOARD OF COUNTY COHMISSIONERS LET IT BE REHEHBERED, that the Board of County Commissioners in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special districts as have been created according to law and having conducted business herein, met on this date at 5:06 p.m. In. SPECIAL SESSION in Building "F" of the Government Complex, East Naples, Florida, with the CHAIRPERSON: VICE CHAIRMAN: following members present: ALSO PRESENT: Bettye J. Hatthews John C. Norris Timothy J. Constantine Timothy L. Hancock Pamela S. Hac'Kie W. Neil Dotrill, County Hanager Kenneth B. Cuyler, County Attorney CHAIRPERSON MATTHEWS: Call to order the 5:05 meeting regarding Land Development Code for Wednesday, April 19. Mr. Dotrill, would you lead us in an invocation and pledge. MR. DORRILL: Father, this evening we -- we give thanks for all that we have, but this evening, Father, we focus on our colleagues and fellow public officials who are in Oklahoma City, and I think in addition to our concern and the concern of the nation of this type of activity but specifically at this moment our prayers and support would go to those individual government officials and employees and their families and specifically individuals who may have lost a loved one today, and our hearts go out to them. We would ask that you touch them this evening and in the days ahead specifically. Father, we ask that you bless our meeting here this evening, that it would be fruitful and beneficial to Collier County, that you bless our time together. We pray these things in your Son's holy name. Amen. (The pledge of allegiance was recited in unison.) Item #3 ORDINANCE 95-31, AMENDING ORDINANCE 91-102, AS AMENDED, THE COLLIER COUNTY LAND DEVELOPMENT CODE - ADOPTED CHAIRPERSON MATTHEWS: We are tonight on the second hearing of advertised public hearings regarding amendments to the Land Development Code. MR. HULHERE: Thank you. For the record, my name is Bob Hulhere with the Development Services Department. At the first hearing, we -- we went through all of the proposed amendments and there were only -- there was really only one amendment that the board directed staff to make some changes to, and that was the political sign amendment which is on page 28 of your agenda package, and it's paragraph three. And if we were successful in following the board's direction, we changed the proposed language to read as underlined, "The number of such signs shall be limited to two signs for each lot or parcel per bulk permit issued for each candidate or issue." And as I understood the direction, we weren't going to deal with whether it was two -- single-faced or double-faced, just simply two signs. And if you happen to get there and put a V sign which counts as only one sign, then you would -- you would have a V sign, but two signs per parcel. That was as I understood the directions. COHMISSIONER CONSTANTINE: Correct. CHAIRPERSON MATTHEWS: So we're going to count a V sign as one sign. So they could have two V's? MR. HULHERE: Yes. If it meets the definition of a V sign or a code, it currently -- the code does say the V sign is only one sign, and I think there's an angle. And if it -- you know, if it's not separated out too far, then it counts as only one sign. CHAIRPERSON MATTHEWS: All right. So what -- what we're specifically dealing here with then is all the little teeny signs that get put out there in -- MR. HULHERE: That's correct. CHAIRPERSON MATTHEWS: -- in multiple numbers? MR. HULHERE: That is correct. CHAIRPERSON MATTHEWS: Okay. Many multiple numbers. COHMISSIONER CONSTANTINE: That's the jab amendment. CHAIRPERSON MATTHEWS: Is that jab? COMMISSIONER CONSTANTINE: That's the jab amendment. MR. MULHERE: Now, there were no other comments on any of the other changes at the last meeting; however, I know there will be some on some of the changes at this meeting. COMMISSIONER HANCOCK: I did have one concern I brought up the last meeting regarding -- and I'll look for the one. It was regarding the requirements in PUDs. I'd ask you instead of -- kind of to clarify the meaning of requiring certain development criteria of clubhouses and facilities, that it be in conjunction with, say, a percentage of or a -- You know, as I read it, this is kind of confusing. It really isn't clear, and I know we probably have some folks here tonight to talk about that. And I would just like to suggest -- This is the second hearing and not the first. If there are significant -- and I'll ask if this is the board's desire. If there are significant language changes being proposed this evening that staff has not either looked at or is not ready to propose specifically this evening, rather than spending two hours over changes tonight, we may be better served by withholding those changes until the next cycle and taking another try at it. I just -- I would be concerned about us doing something tonight that we have to do again in six months. MR. MULHERE: There are some -- I'm sure there are some people here to speak to this issue. I received some phone calls relative to this language and -- both on the dedication of public facilities as well as the amenities, both sections of that. It's on page -- I'm sorry. We're on page 16 of your agenda package, 15 and 16. CHAIRPERSON MATTHEWS: Commissioner Constantine. COMMISSIONER CONSTANTINE: I agree with Commissioner Hancock. That's the purpose of having two public hearings, is the first one we can get into the in-depth needs to change any wording. (Commissioner Mac'Kie entered the meeting room.) COMMISSIONER CONSTANTINE: The second one I think is more -- the purpose is more designed to do the tweaking and so on and so forth. So if there's something -- I agree wholeheartedly. If there's something that we haven't seen before and is a major change, unless we have wording specifically suggested, I think it would be better suited, unless it's something out of the ordinary, to do that in the next cycle. CHAIRPERSON MATTHEWS: Okay. Why don't we -- If you've got other changes that you need to go through -- MR. MULHERE: No. CHAIRPERSON MATTHEWS: Why don't we hear from the public speakers. COMMISSIONER NORRIS: What -- Let me ask, what section of this is causing you a problem with it? The paragraph that's number two on page 16 seems fine to me. I don't know -- Is that the one or is there something else? MR. CUYLER: I think that staff and perhaps the board is aware of some concerns that some members of the development community may express at today's meeting. You may have to listen to those to find out what the -- what the discussion is. I think from staff's perspective, item number one and item number two are separable. I think that both -- in both of those cases, it's an attempt to try to correct some problems that we've had. With regard to two, I think those are the kind of problems the board is probably even more aware of than staff because you're the ones that get the call from the homeowners when the pool doesn't go in or something is late. I think from staff's perspective -- and I'll let Bob say what he wants to say -- item number two can wait as long as you want it to wait. I think item number one, I'm not telling you, you have to do it tonight. Obviously you have the discretion to continue that, but I would suggest that you have some good reasons put on the record as to why that language is not acceptable or if -- if we can tweak that tonight and get that done. Obviously the basis for that, as you can read, is where we get PUD commitments, we've been running into problems. I mean, it's not stopping county government. But, on the other hand, we need to define in the PUDs if somebody has to do something, how they do it, when they do it. I don't think staff is tied exactly to this language. Obviously we're at the hearing. I don't think staff knew about this, that there were any problems with this until yesterday. If we'd known about it a couple of weeks ago, we might have been able to work on this and have it ready for you, but I think you need to hear from your public speakers and find out exactly what they're saying. MR. MULHERE: I would add that one of the issues that -- The citing is incorrect. It's 2.2.20.3.7 and then that's -- COMMISSIONER MAC'KIE: That changes everything. MR. MULHERE: And the other issue is that this -- the direction that we had relative to developing some language for dedication of the public facilities has involved in some circumstances in the past not just PUD fezones or PUD amendments but also straight fezones and conditional uses. Sometimes with the conditional use the board -- the staff will recommend and the board will approve a requirement to dedicate some right-of-way. And so staff in amending this placed some language in there, took out the reference to PUD rezoning and placed in the words rezoning and conditional use fezones or conditional use approvals. And, in fact, that section really deals only with PUD procedures. So we would recommend that we -- we take this exact language or whatever language the board approves, if the board does approve language tonight, and place that language in the appropriate section under conditional use and the appropriate section under fezone as well as within the PUD section. And I have those sections. And, for the record, for a straight fezone, it would be section 2.7.2.8.1. And under conditional use, it would be 2.7.4.5.1. Both of those sections deal with stipulations, conditions, and safeguards. COMMISSIONER HANCOCK: And which language is this specifically that's before us? MR. MULHERE: It would be under -- all of the language under number one currently except that we would take out -- We would put the appropriate reference in, whether it be conditional use, fezone, or PUD under the -- in the appropriate section. COMMISSIONER HANCOCK: Okay. CHAIRPERSON MATTHEWS: Mr. Cuyler, before we go much further on this, this seems to read that within the PUD document, the developer or the builder, whichever, developer I presume, will spell out at what point in time in the progress of the development he's going to have different amenities available. Is the county taking on a burden of becoming -- We're already in the middle between the builder and the buyer, you know, because they come to us when it doesn't happen. But I -- I don't feel good about the possibility that if this is in a PUD ordinance, that we're going to get caught in the middle of an argument between the developer and a difficult dissatisfied buyer, and because we aren't enforcing his perception of what ought to be, that we wind up in a legal battle. MR. CUYLER: There is that potential. I think number two depends on how badly the board wants this. I do have some concerns along that line, and we need to be very careful. I think asking the developer to set out his time frame, there's nothing illegal about asking him to do that. When he doesn't meet the time frame -- we've had a couple Code Enforcement Board cases for things related to this. Now, in those cases, we had more than just a PUD and somebody saying, yeah, this is going to be a golf course community or this -- we're going to have a swimming pool. There, in fact, were some commitments that were a little unusual, and those cases gave us the ability to go in and go after those developers that weren't doing what they said. But in the average case, you need to want to do this a lot in order to put this in, because to some extent, it's going to involve you. I know the board's very conscientious about citizens coming in and saying, "Our pool wasn't built. What are you going to do," and I know that nobody likes to say,"Sorry. That's not our bailiwick. We don't do that." And this gives you the ability to at least have the developer set out his time frame and this is a little unusual. CHAIRPERSON MATTHEWS: I saw you both at the same time. Commissioner Mac'Kie. COHMISSIONER MAC'KIE: Just if anybody's counting votes, not only do I not really want to do this, I really want not to do number two. I mean, I think it's a very bad idea. CHAIRPERSON MATTHEWS: I'm concerned about regulating ourselves -- regulating ourselves into a corner that we're not going to be able to escape from without a lot of litigation but -- and that's a question. Commissioner Constantine. COHMISSIONER CONSTANTINE: It seems like there may be a happy medium here. I don't know that you need a calendar as far as, okay, by June of 1997, we'll build X, Y, Z. However, there may be a way or it seems to me we are not being intrusive or obtrusive at all to have trigger mechanisms before you can build certain percentages within that PUD, before you can -- if it's a PUD with -- yesterday, 626 residential units, perhaps the clubhouse should appear by the time -- and I'm picking this number. I don't know what it is. Maybe Bob can help me -- but 50 percent of that is done or something, because we do run into problems frequently, and there is absolutely nothing we can do right now short of some of the unusual -- CHAIRPERSON MATTHEWS: But do we want to get caught up in an enforcement environment like that? I mean, we've all talked in the last two and a half years that this board is completely changed, that more government is bad government and this -- this is regulatory without really knowing what the cost benefit of going into it is going to be and I'm -- I'm very concerned that the cost is much greater than the benefit. That's for us to discuss. COHMISSIONER CONSTANTINE: Well, I just -- It is regulatory. If we're going to have the growth -- I know, Commissioner Hac'Kie, you don't have the growth concern in your district the same, so the concern is probably smaller. But when you have a development with eight or 900 people moving in and -- you know, a big part of that is either the clubhouse facilities or the golf course facilities or what have you. Maybe the majority of the board thinks just leave that up to the court system or what have you, but it seems to me if we are going to have and indeed encourage development, then we take some responsibility with that. CHAIRPERSON MATTHEWS: Commissioner Mac'Kie. I'm sorry. We've all got something to say on this now. COHMISSIONER HANCOCK: COHMISSIONER MAC'KIE: talking here? COHMISSIONER HANCOCK: COHMISSIONER MAC'KIE: COHMISSIONER HANCOCK: Yeah. Just -- I'm sorry. Who's -- Who's I haven't had a shot on this so Okay. I'll hush. The whole reason this came about is a very valid reason, and I think we can point at one particular development and say the residents were promised something, it wasn't delivered, and so the need that this board feels to make everyone play by fair rules to say, when you promise something, you have to deliver, is I think an admirable approach. This particular language, in my opinion, doesn't give us any greater flexibility or increased enforcement, if that's what we're seeking, than we had under the previous situation because if I draw a PUD plan and I put in the center of it clubhouse facility and we pull our last building permit and walk away without a clubhouse facility, I think anyone has a valid case to walk into court and say, "It was promised as a part of a plan that I was shown and it's not there. You're liable." If we put this language in here, that scenario doesn't change in any way. It may change in the form of Code Enforcement action coming at an earlier stage than it would otherwise, but as we realized, some crafty people can switch their assets 72 hours before a Code Enforcement hearing, and you still can't get, you know, blood from a turnip. So I'm concerned that -- I think the intention here is valid. I think it's -- it's -- The intention is well meaning and good, but I'm not so sure that we're really giving ourselves anything here or giving ourselves something that is useful in the way it's presented. So if we can find a way to say when you make that commitment, you have to a make good on it, and the board is going to stand behind and push as best we can, I'm all for that. I just look at this particular language, and I don't think it gets us there. It may be a broader application than what we're really trying to seek because according to this, I mean, throw in -- if they show a little boardwalk and a little island and a lake with a little boardwalk going across to it yet don't mention it in their marketing plan, they're now bound to that boardwalk and that little island. So once you have some artistic planner out there drawing in the middle of a lake, you know -- if they show boats at a dock, you know, does the dock have to be built. I'm just concerned that it's a gross application to a specific problem, and it may create more legal problems for the county to become involved in than we want to. So I share a significant level of concern with Commissioner Matthews and Commissioner Mac'Kie, but I certainly don't fault the reason behind wanting some mechanism. I just don't know that this is the correct wording for it. CHAIRPERSON MATTHEWS: Commissioner Norris. COHMISSIONER NORRIS: Okay. Thank you. There -- Commissioner Hancock's correct, that this is in response to a certain development, but it was more than one. It was maybe -- maybe more in response to one developer with more than one developments, and we've had recurring instances of developers trying to finish a project sales-wise before they completed the amenities with the potential that they would never complete the amenities, and that's not good, and this I see is a fairly simple way to correct that problem in the future. I think Commissioner Constantine's exactly right. We should never try to tie this to a calendar, but other trigger point mechanisms such as numbers of units sold, and then if the amenity is not produced and completed by that time, it's a very simple matter not to issue any more building permits, and so you do have the leverage that you need. I don't see this as being any more onerous to the county from an enforcement aspect than any other of the codes that we have to enforce. We -- When someone brings in a PUD, there's any number of things that we have to enforce on that PUD, of course. And let's -- let's not lose sight of the fact that the developer himself is going to voluntarily put these amenities into his master plan along with the trigger point mechanisms that say when they have to be built. So it's not -- The county is not going to force a developer to -- to any type of schedule that the developer doesn't bring forward himself, and I think that's very important. This is pure consumer protection, and it's certainly something that we can do for our citizens that may turn out to be very valuable in the future. CHAIRPERSON MATTHEWS: Well, let's -- If there's not additional comment, why don't we go to the public comment. MR. DORRILL: Miss Cawley. COMMISSIONER HANCOCK: I do want to ask Mr. Cuyler a question based on something Commissioner Norris just said. Does this language, in your opinion, in fact, have the potential to increase the county's position and involvement in litigation? COMMISSIONER CONSTANTINE: Mr. Cuyler, before you answer, I'm going to agree with you, that this wording doesn't do what I'm looking for it to do, and we can change that accordingly. And I'm pleased to hear you say if we can come up with wording that achieves that, that you're okay with it. But I don't disagree. This wording in and of itself doesn't do exactly what John and I have laid out -- what Commissioner Norris and I have laid out and -- and -- but my hope is we can adjust that and do exactly what he suggested and that is protect the consumer. COMMISSIONER HANCOCK: Okay. MS. CAWLEY: Do you need to answer? MR. CUYLER: I hope not. MS. CAWLEY: I didn't know -- I didn't know if the question had been answered. COMMISSIONER HANCOCK: I think Commissioner MAtthews is right. We'll go ahead and hear the comment and see if we are at a workable position before proceeding. I think that's a good idea. MS. CAWLEY: Good evening. Barbara Cawley with Wilson, Miller, Barton and Peek. First, I'd like to apologize for not being at your first hearing. I had a little surgery and I was sort of laid up so I didn't know this existed until yesterday. I would like to encourage the board to do as the majority of the board has mentioned so far, is to delay this until the next cycle to give everyone a chance to really come up with language that is workable to do the things that you want to do. I think what we've got is a baseball bat hitting a gnat or a monster killing another monster. Part of the reasons that I say that is -- are some of the things that you've said here tonight I agree with. This is generally a civil matter between people that buy in a project and the developer. If a developer has shown in his sales documents that he's going to have a certain size clubhouse or swimming pool or whatever, that is a binding contract with the people that live in the project. A PUD is a generalized document that allows certain uses within a PU -- within the project and not that they have to go in there. We give developers the right to build single-family units all the way to multi-family units within these projects, but we don't require them to have a mix of everything that we give them the use for. And the same thing for, like, a recreational tract. In the PUD document, we could have anything from horse trails to tot lots to boat docks to clubhouses to swimming pools, but that doesn't mean they have to build them all, and it gives him -- them, the developer, the ability to look at the market and look at the people within his project and build them. It's a little bit different than building a golf course. A golf course is an actual use within your PUD. You have a separate section, a golf course district, within your section. If you want to use that property for anything else, you have to come in for a PUD amendment. You can't just not build your golf course and use it for something else. All the PUDs have always been that way. So you're not putting yourself at risk that the developer won't build a golf course without your approval. You have the ability to come back and approve that. I think this language -- you're asking for your phones to ring. If they aren't ringing already, you're putting yourselves in the middle of the civil suit between the property owner and the developer, and you're asking for a lot of phone calls as far as I can see. The other -- The other problem is the issues generally occur when you have a bankrupt developer. We have so many good developers in this community that have done everything and more than they have said that they're going to do within their PUDs. We have some marvelous projects in this county that have tremendous numbers of amenities, and they're put up -- up front or at the time when it's necessary for the residents of their PUDs. To have language put in that will -- that will really hurt all the good developers because we have one problem developer I think is sort of a bad way to run -- to do it. It needs to be a really real problem from a large standpoint before we -- we start amending the code for new regulations. And the one other point that I'd just like to make is the idea about not issuing building permits when -- if somebody hasn't done what they're supposed to do. That will actually hurt an individual property owner within the project who may want to build a house, and now the project has a moratorium on it basically because the developer is gone and he hasn't built a clubhouse or a swimming pool or a tot lot, and I can't pull my building permit to build my house because of him, and I think that doesn't really solve the problem that you're looking for as well. So I just suggest let's delay this. COMMISSIONER MAC'KIE: Barbara, one of the things that you and I -- Just jump in there, Pam. I'm sorry. CHAIRPERSON MATTHEWS: Yes, Pam. COMMISSIONER MAC'KIE: -- Is flexibility. You know, what about if in the PUD you've got a tot lot and it turns out you need a racquetball court? That's one that I'm worried about. MS. CAWLEY: Well, you know -- and one of the things we have in our language that we write inside our amenities for projects, we do -- we give this broad range, and they can put in a tot lot or a racquetball court, but they aren't bound to put in either one unless the people in their community really want it and it serves their needs. Now, I think a golf course and a clubhouse are issues that maybe those are the two that need some looks, but that's something that you even get problems with in terms of a bankrupt developer or an agreement between two big companies like Breckenridge, I'll even say, and Lely -- they had a battle between them, and to force the county in the middle of their lawsuit because Breckenridge hadn't built what it was supposed to build, I think you're putting yourselves into an uncomfortable situation so -- CHAIRPERSON MATTHEWS: Thank you. Commissioner Hancock. COMMISSIONER HANCOCK: That last comment was along the lines of what I was thinking and for some -- I was thinking of Lely where they have single-family. And a developer typically will come in and purchase a tract of land and then will do their internal development on that tract. And if the main developer or main property owner does not provide a facility after someone else has purchased the tract for development, to tie the two in a sense that this one can't build because this one failed is -- is -- actually, in effect, the county would be acting in a way that would eventually bankrupt everyone who's purchased something in there. So we could probably go around this all day and actually all end up agreeing that, okay, maybe this doesn't do what we want to do. I guess the question for me is, I don't want the situation we've had before where the half-completed pool sits for nine or ten months, and I want to find a way that if we can build into the front end, whether it is a PUD or whether it's a fezone or whether it's -- MS. CAWLEY: I think that's really a code violation of a building permit, and it's very simple. You have that authority right now. It's a safety issue. If somebody hasn't built their -- finished building their swimming pool and it's sitting there half built and in violation of their building permit, you have ability to remedy that right now, and I think the same thing with the clubhouse. You're giving -- You're talking about a code violation. You're not talking about a PUD violation. CHAIRPERSON MATTHEWS: Okay. Thank you, Miss Cawley. MS. CAWLEY: Thank you. CHAIRPERSON MATTHEWS: Commissioner Constantine. COMMISSIONER CONSTANTINE: That's true if we're talking about a half-built facility, but that's not our only concern is that which is half built. I guess I see this as a miniature version of the responsibility we have countywide. When a particular area of the county gets "X" number of people, then we provide library services or we provide park services or we provide the different recreational amenities that we have promised all our citizens, and I see that we need to hold developers to the same standard. When they get to a certain level, they need to provide those activities which they have committed to do. It's almost a parallel idea there. I think the place to do that -- and this wording, again I agree, is inappropriate, and we will likely have to bring this back; however, I do not want it to die in that six-month period. This isn't going to go away. But it may be in the planning process. We keep talking about building permits, and you may have within a development several different plats, and those are where you're going to get -- where you're going to get the developer to pay attention, is if he can't do anything with the remaining empty property unless he fulfills his obligations on that which has already been developed. I think that's where you're going to get their attention more than individual building permits. that may be an angle we'll want to look at in the six-month period. COHMISSIONER HANCOCK: If I may follow up, we -- we may be arriving to a consensus that today is not the appropriate time to either approve or to squash this completely, but it may be more appropriate to direct staff and those in the industry to work together on this and to come back with something understanding that this board does want more of a commitment regarding facilities, specific facilities such as clubhouses and pools on the front end instead of on the back end, and the best way to do that I don't think has been arrived at in this -- in this document. In other words, there's probably a better way to build this mousetrap, and this may just be the first step. So, again, rather than talking around it for an extended period of time, I'd be more than happy to make a motion that we -- on number two specifically that we remove number two from the LDC amendments and that we direct staff to work with people in the industry so that during the next LDC amendment cycle we see language that achieves the desired result that you've heard here today but that has a correct and fair application. COHMISSIONER NORRIS: I'll second that. CHAIRPERSON MATTHEWS: Okay. We have a motion and a second. Is there further discussion on the motion? There being none, I'll call the question. All those in favor say aye. Opposed? There being none, motion passes 5-0 for deleting item two of -- located on page 16. Mr. Hulhere, one other concern that's come up -- COHMISSIONER CONSTANTINE: And the motion was also to work it and revisit it in six months. COHMISSIONER HANCOCK: Thank you. The motion included directing staff to bring this back in the next cycle after working with the industry. CHAIRPERSON MATTHEWS: COHMISSIONER HANCOCK: CHAIRPERSON MATTHEWS: COHMISSIONER HANCOCK: CHAIRPERSON MATTHEWS: That's what I was going to -- Is that your next move? Yeah. Okay. When -- When -- When you're reworking this thing, one of the -- one of the comments that's come up -- and Hiss Cawley was correct in saying that building permits may not be the appropriate handle, because in the instance of the subdivision I live in, we buy our lots from the developer, and then we go and secure a builder to build our homes, and the builder pulls the permit after we've already paid our "X" numbers of dollars for the lot. And in our covenants, we have up to four years to do that. The development could go haywire sometime after I've bought my lot, and it would be unfair to -- MR. HULHERE: I understand. CHAIRPERSON MATTHEWS: -- preclude someone from building if they've already paid their money for their lot -- MR. HULHERE: We certainly don't want to -- CHAIRPERSON MATTHEWS: -- if they choose to. MR. HULHERE: -- punish the citizen. CHAIRPERSON MATTHEWS: Yeah. So that's -- that's -- that's another point that needs to be worked into this. Okay. Are there any other changes that we're looking at on this? MR. DORRILL: One -- One additional speaker on this on point one is Mr. -- MR. HULHERE: I think item one is a whole 'nother ball of wax. MR. DORRILL: Mr. Anderson. COHMISSIONER CONSTANTINE: Ladies and gentlemen, Bruce Anderson. MR. ANDERSON: Good evening. For the record, my name is Bruce Anderson. I'm here on behalf of Barton Collier Companies. We'd like to speak with regard to paragraph one of this same section that you were discussing, and our preference would be that you either deny approval of paragraph one changes or likewise as you did with two, defer them, for us to work with the staff and try to achieve a consensus on that. I would note that you do seem to have a bit of a notice problem on this one because this section of the LDC addresses PUDs only, but within the body of this language here you also are attempting to address any kind of rezoning or conditional use. COHMISSIONER HAC'KIE: So maybe we want to get Ken's advice. CHAIRPERSON MATTHEWS: Mr. Cuyler, you want to address that. MR. CUYLER: That's a matter that Mr. Hulhere had talked about at the beginning of the meeting. I think that because of the broad notice with regard to the title of this item, Mr. Hulhere was talking about figuring out whatever you finally want to do with this language and inserting it into the appropriate sections as opposed to having the reference to straight fezones and conditional use in the PUD section. MR. HULHERE: We generally try to advertise, I think as Ken said, with a more -- a little bit more broad because we don't know necessarily what the board direction is going to be and if we have to change something -- So when we advertise, we advertise really by article and not by specific section. But Mr. Anderson is correct, that the citing -- If we're talking about 2.2.20.3.6, that's incorrect, and it should be .7 or -- or were we talking about -- COHMISSIONER MAC'KIE: The conditional use fezones. MR. ANDERSON: No. I was talking about the fact you're trying to address conditional uses -- MR. HULHERE: Oh. The conditional uses. Yeah. Yeah. MR. ANDERSON: -- of fezones in a section of the Land Development Code. MR. HULHERE: No. We -- We addressed that one earlier. COHMISSIONER MAC'KIE: Bruce, what's wrong with this? What -- What's -- What's wrong with the concept on this one? MR. ANDERSON: The problem is that the county is -- is -- is, in effect, trying to bank land for future use which is clearly prohibited by case law. What you're doing right -- with -- with this proposal is for the county to, in effect, take the land, not title to it yet, but take all use of it now and pay later. COHMISSIONER MAC'KIE: But it doesn't say that. It says that -- that we're going to -- we're acknowledging that we're going to take it, that you have given it, and as of effective date sometime in the future. So it's not taken until the future date. MR. ANDERSON: But we're not allowed to use it, are we? COHMISSIONER HAC'KIE: You can use it until that date you're ready to rip up whatever you put down there. Go put -- you know, have a street dance, but be ready to have a street. MR. CUYLER: And I don't want to interrupt Mr. Anderson's presentation -- I won't after this -- until he -- until he gets through. But, I mean, these are commitments that the developer is committing to as part of the PUD process as -- what are referred to as exactions or whatever as a result of impact, and I'll make any comments after Bruce finishes. CHAIRPERSON MATTHEWS: Okay. Commissioner Hancock. COHMISSIONER HANCOCK: Mr. Anderson, correct me if I'm wrong, but the way things are currently done, if I write a PUD and say that as a part of the fezone -- PUD -- regardless of whether it's a PUD or not, as a part of the fezone action, I'm going to dedicate to Collier County a 60-foot right-of-way and give the legal in exchange for impact fee credits. Okay. That's currently the way things are done. At the time that I actually dedicate and convey that land to the county, I go out and get an appraisal of the land at that time, and that becomes the impact fee credit. Is that the way things are done right now? MR. ANDERSON: That is correct. COHMISSIONER MAC'KIE: I'd like to hear from Mr. Archibald on that because I'm not sure that's exactly correct. So if that's on the -- COHMISSIONER HANCOCK: Okay. Yeah. Because I need to clarify that because I'm trying to walk through this. COHMISSIONER MAC'KIE: If that's the premise. MR. ARCHIBALD: I might be supporting Bruce but at the same time trying to get the price down. What we're looking at in terms of -- Well, let me answer -- COHMISSIONER HANCOCK: We don't care who you support as long as you get the price down. MR. ARCHIBALD: Right now in each PUD document, depending upon the benefits to the public and the benefits to the public, we sometimes use either the market price, or in many, many of the board's actions, the board has put into the language of the development document that the value that that developer paid for that property is the property value that the government should pay for it. That value that's in a lot of the documents is much less than the value of an appraisal of fair market prior to rezoning. So contrary to what Bruce is commenting on, there may be some language that could be provided here that would give the county a better leverage to get at least the price of the land before rezoning or even less. That's not in that language. And I think that since the board has approved many PUDs where the language relates directly to the county buying the property based upon the value that the developer just bought the property from a prior owner at, then those kinds of conditions, if reflected in here, may result in a lower price to the county but obviously no higher than what's shown here in terms of the value of the property immediately prior to the land use action. CHAIRPERSON MATTHEWS: Let me -- MR. ARCHIBALD: Thoroughly confused everyone. CHAIRPERSON MATTHEWS: Let me see if I can figure this out, in my mind, what you've said compared to what this says. John Doe owns a piece of property and he fezones it to a PUD, and in that PUD he includes public facilities, that he's going to dedicate land for a library or a fire station, you know, what have you. It doesn't matter. He completes the zoning process, and then he sells the land to a developer. The developer has -- is required to make the actual deed transfer. COHMISSIONER HAC'KIE: Yes. CHAIRPERSON MATTHEWS: And based on this wording, the value assessed will be on the day or the market value at the time he transfers the land, not the time he bought the land. Is that -- Is that what I'm hearing? MR. CUYLER: No. I think -- What -- What this language is supposed to do -- and George has raised a wrinkle. But what this language is supposed to do is to make sure that the value for the impact fee credit does not take into account the fact that you are increasing the value through your own rezoning action and that the credit is set two or three years from now. I think George indicated that sometimes he can get a deal that is better than the market value at the time of rezoning. I think he's suggesting that you put something in effect that it shall not be in excess of the value of the land prior to the fezone. CHAIRPERSON MATTHEWS: That's what -- what -- my question. He's -- He's raised a scenario that he tries to go through now where he tries to work with the property owner and develop the price that's agreeable to both, often less than whatever the market value was. But what I've read here is that said credit shall be based on the market value of the set-aside land prior to the rezoning action as determined by an accredited appraiser. Now, that fixes the value at the property owner's price when he fezones. Is that -- MR. CUYLER: Just -- Just prior to the fezone. And you're correct. We -- That might be good to put something"no higher than. " COHMISSIONER MAC'KIE: "An amount not to exceed." MR. CUYLER: I think staff was looking at it from the perspective we don't want to pay the inflated price at some"X" days, you know, after the fezone, and George is indicating, well, sometimes we can even get a lower price than this. I think if you put "not higher than," then that will allow George to do the -- CHAIRPERSON MATTHEWS: Yeah. "An amount not to exceed COHMISSIONER MAC'KIE: Right. CHAIRPERSON MATTHEWS: .... the market value." COHMISSIONER NORRIS: Some language -- Let me suggest that we just make it, "a negotiated price not to exceed the market value prior to fezone," something to that effect. COHMISSIONER MAC'KIE: Sounds good. COHMISSIONER HANCOCK: You're not jumping in on this, Bruce. Is there a reason? MR. ANDERSON: I don't want to be rude. COHMISSIONER HANCOCK: I meant in agreement. MR. ANDERSON: I don't want to be rude. Under -- MR. DORRILL: Don't be argumentative either. MR. ANDERSON: Well, under -- under case law today, if you were to go condemn someone's property, the jury is permitted to consider the reasonable probability of a change in the zoning in determining what the value that should be paid is. And my question is, is it your intention by this language to get rid -- you know, avoid that case law requirement. COHMISSIONER NORRIS: Mr. Anderson, what we're talking about here today is not going to condemnation. These will be voluntary agreements. If we have to go to condemnation, then we've got a whole new scenario, and none of this is going to apply obviously. MR. ANDERSON: Well -- I'm sorry. Your point is well taken but this -- this relates to the issue of just compensation. And because a jury would be allowed to consider that in a condemnation action in determining what just compensation is, you are precluding that from being factored in in arriving at just compensation under these circumstances. COHMISSIONER HAC'KIE: We're permitting -- We're suggesting that we'll permit the property owner and the county to negotiate a price that does not take that into account. That's all we're saying. MR. CUYLER: That is exactly what we're trying to avoid. You know, it's double-dipping to have, you know, a speculative inflated price as opposed -- as a result of nothing but a PUD fezone and then to have the credits given on that inflated price. I mean, that's the staff's position as I understand it and it's logical. MR. ANDERSON: That -- That might work if you went ahead and took the land at the time of rezoning. But the problem is, when you don't take it at the time of rezoning, the property owner still winds up paying the ad valorem taxes on the property that's going to be dedicated to the county. He doesn't pay his ad valorem assessments on the basis of the value of the land before it got rezoned. He's going to pay higher ad valorem taxes and it would be -- you know, if you want the land, go ahead and take it and pay for it at the time of rezoning, but it's all cut and dried. COHMISSIONER CONSTANTINE: Bruce, if he buys a PUD, isn't he aware -- I mean, that property -- he's aware of the use or lack of use of that property from day one. I mean it's -- MR. ANDERSON: Right. That's correct. CHAIRPERSON MATTHEWS: So it's the property -- the initial property owner who went through the fezone and sold the property to a developer subject to the PUD ordinance. MR. ANDERSON: Or he may have held onto it after he got it rezoned. CHAIRPERSON MATTHEWS: He may have. Either way the property owner knows what he bargained for, and certainly a developer who purchases that property knows he's buying it subject to. So I can't see what the concern is. COHMISSIONER CONSTANTINE: You're asking the county to create a greater value through that PUD fezone and then to pay for that greater value that they have just created. COHMISSIONER MAC'KIE: That's right. COHMISSIONER CONSTANTINE: And that doesn't -- That seems inappropriate. MR. ANDERSON: Not -- Not necessarily. No. No. Let me give you some examples where this is not going to fit nicely and neatly. You've got a situation where you've got ten acres that are supposed to be dedicated to a school site. The location will be determined later. How in the world -- Another example is future road right-of-way. If we want you to reserve 100 feet, we may not need that much when it comes time for the actual road construction. We only may need 60. We may only need 80. Under those circumstances, how do you get an appraisal done at the time of fezone when you're not sure either where the location of the property is going to be or how wide you're really going to need. That's the practical problem. COHMISSIONER HAC'KIE: George looks like he's got a response. COHMISSIONER HANCOCK: I think we have a practical answer coming. CHAIRPERSON MATTHEWS: Yeah. MR. ARCHIBALD: Keep in mind what we're trying to do here is cap or control the cost of impact fee credits. COHMISSIONER MAC'KIE: Nobody's writing a check. MR. ARCHIBALD: So, in fact, in most cases that value is going to be turned into an immediate impact fee credit. So in most cases, whether it's school impact fees or road impact fees or park impact fees, that impact fee credit is going to materialize for the benefit of that landowner fairly quickly, and the provision that we're looking for here is within some time frame so that if the county immediately needs that for a park or for a roadway, we have the mechanism to be able to gain that quickly or hopefully have some method so that we can, in fact, contain the value of it and also be able to have that for use, but in the meantime that credit is like a check that can be used by a developer. MR. ANDERSON: That's fine when you're going ahead and acquiring -- taking title to the property in a timely fashion. But when you are not taking title to the property in a timely fashion, we do not get the impact fee credit made available until the -- until the actual time of conveyance. MR. CUYLER: Aren't we always willing to take the property in advance if we can get the property in advance? I mean, are there reasons why we wouldn't want the property? COHMISSIONER MAC'KIE: Pay taxes. CHAIRPERSON MATTHEWS: Take those off the tax roll. MR. ARCHIBALD: There's a few cases out there, but I believe the majority of the cases will be if we're going to identify properties that are needed and we're going to give that value in terms of impact fee credit and obtain that property. Yes, there's cases out there where the improvements that we need are so many years away, that we may want to handle that very specifically in specific language in the PUD or the DRI, but I would think that would be more of an exception to the rule. The rule in most cases will be, we identify the need. The developer gets the value in terms of credits. MR. CUYLER: I will agree with Mr. Anderson on one thing, and that is there are unique situations that pop up, but that's what the PUD is for. I've never seen a developer that wasn't able to solve a problem that the developer had in a PUD document, and I think that this -- you know, the county generally is able to solve its problems in the PUD document. As long as we have some underlying ability to require that, then I don't have any doubts that the parties, like they always do, will work out the appropriate language. CHAIRPERSON MATTHEWS: Commissioner Hancock. COHMISSIONER HANCOCK: As someone who has sat across the table from George on a project and George wanted something and I -- and I as a representative of a property owner thought, "Well, wait a second. You know, you don't know if you need it but you're asking for it. Where is the compensation." I mean, I've sat on the other side of this argument, and there is a valid point here, and that point is that if you are going to tell me I can't use this for anything, then, okay, go ahead and take it. Now, if every time you're going to take it, then we don't have a problem here as far as I'm concerned, you know, because if you want a 60-foot right-of-way and you're going to give me that impact fee credit right away, great, take it and let's go. But in those unique situations where there's a time delay between the approval of the fezone and the period in which the county is willing to accept that property into its inventory, I think we do have -- in general sense, is a land rights issue there. You're saying I can't use it subject to an approval or because of an approval yet you won't take it off my tax responsibility. That's the one point I'm hearing that I don't -- I don't have a real clear answer as to an issue of fairness. So I'm -- I agree. I like this because it says if we're going to set it aside, the county is going to pay prerezone prices for it which, you know, is going to be cheaper than ten years down the road after the property is rezoned and we come in and say now we need it. But those situations where we don't take it at that instance but tell them as a condition of their approval that you can't use it and they continue to pay taxes on it, I do have an equity question there. CHAIRPERSON MATTHEWS: Commissioner Hac'Kie. COHMISSIONER MAC'KIE: My question was just for George in trying to understand how the process works. I fezone a PUD and you tell me that you might need some roadway and so you identify the potential acreage and the price is set under this scenario as the prerezone price and I get a half a million dollars worth of impact fee credits under this financial analysis. Tomorrow I want to go build my clubhouse, and when I go to pick up my building permit, I have to pay my impact fees. You haven't taken my road yet. Do I get to use my credits? MR. ARCHIBALD: In most cases, the project that you're talking about is going to be near term, and if the developer is going to proceed with that project, then, in fact, I'm going to want that right-of-way, and I'm going to want that right-of-way immediately, and I'm going to want to enter into an agreement to give the developer the impact fee credits so that the scenario here that we're dealing with in time really is a land use question of are we rezoning property ahead of its time. Now, in most cases if we're talking about properties within the urban area in a developing zone, then we've already identified the infrastructure we need. We've already identified the time frame in our Comprehensive Plan and our Growth Management Plan when it's going to be needed. In terms of right-of-way, that's easy to answer. I want that right-of-way as soon as I can obtain it. In the case of parks and school sites, that's not the case. That park site and school site may end up being something on a -- COHMISSIONER MAC'KIE: Well, look at Pelican Marsh. They traded. You know, what used to be a school site is now a development and Pelican Bay and -- you know, and those things change. I'm getting confused the more we talk about it. I thought this was simple we know we need streets. We want them. We want to know when we're going to get them, and we're willing to give you a reasonable value for them. Now I'm getting more confused about it. MR. CUYLER: I think the language in the document -- the reason that it's structured the way it is, is because the county wants to make sure that the credit isn't given and used and building permits taken out and the project -- along the lines of what you were talking about before with the amenities. The project moves along its merry way and we don't need the right-of-way yet. Then it comes time for us to get our right-of-way and there's no hammer left to get the right-of-way. COHHISSIONER HAC'KIE: Is this a problem? Are there cases where this -- I mean, we all know what we were talking about in the section two problem. Have we had a problem with these issues? MR. CUYLER: Yes. Generally. I'm not saying that they're overwhelming but I think that -- I thought, frankly, it was in everybody's best interest to tighten the thing up. I would think -- developers don't like us coming to them and say it's time for the dedication. They say, "Well, our project's not far enough along. We don't want to do it right now." You know, then everybody is in a bad spot. MR. ARCHIBALD: If I could comment, in most cases, again from the process standpoint, if, in fact, there's something the county needs and there's something that we recognize being a different time frame or time table where it's not appropriate for one reason or another, I think either the county's going to see that or the developer is going to see that, and he's going to address that very specifically in his PUD document. So I think in those exceptions to the rule when you're dealing with a park site or a library site that may be many years off and the county doesn't want to maintain a vacant piece of property for ten years, in those cases I believe the DRIs and the PUDs that are on the books, they've already addressed those concerns. They already have stipulations where, in fact, we come to terms with how those are going to be addressed. What we're doing here is, of course, making sure that we don't provide a windfall for a landowner or a developer. CHAIRPERSON MATTHEWS: Commissioner Norris. COHMISSIONER NORRIS: Mr. Cuyler, I think the -- one of the valid points that's been discussed here is that if we ask for dedications but we're not ready to take the dedications at this point, then the property owner is going to be left paying taxes on something he knows he's not going to be able to use in the future, and that I agree is not fair. Is there a simple mechanism that we -- if we require dedications of a park site or a school site or any kind of site that we may or may not use for some time period, can -- is there a simple enough mechanism where we could just remove that set amount of acreage from the property tax roll? MR. CUYLER: It needs to transfer out of the developer's name on the tax rolls in order to get it off the taxes. COHMISSIONER CONSTANTINE: We might as well just take the property if we're going to do that. COHMISSIONER MAC'KIE: Absolutely. MR. CUYLER: Right. COHMISSIONER MAC'KIE: At least own it. MR. CUYLER: Right. COHMISSIONER CONSTANTINE: I would think that would be the least cumbersome. MR. CUYLER: And, to tell you the truth, I'm probably a little less concerned with -- The thing that keeps popping up is right-of-way. I mean, that seems to be the crux of a lot of the -- a lot of the issues and roadways. COHMISSIONER HANCOCK: Yet George has always been very effective in this, and what I'm hearing from him is, on the average, we are probably paying less for right-of-way now on the average than we may of this requirement. Did I pick that up from one of your earlier statements? MR. ARCHIBALD: Yes. COMHISSIONER HANCOCK: I have to commend George. I know from dealing with him, he's very effective at getting right-of-ways. MR. ARCHIBALD: The board has developed over time an informal policy to the staff that, in fact, we're looking to pay what the landowner paid for the raw property. So staff has its direction to try and negotiate based on that value. That value many times would be much lower than the value represented here although the value represented in item one here is still a small percentage of what the land is worth after the fezone occurs. COMMISSIONER NORRIS: Mr. Archibald, does it settle your concerns to add the language that I suggested earlier, that the price would be negotiated but limited to that market value, the land set aside before fezone not to exceed that -- negotiated but not to exceed that market value before fezone? MR. ARCHIBALD: I think that's the direction that we should be going in. The remaining language under item one may need to be changed accordingly or modified. But, yes, that's the direction that's going to result in a big dollar savings for the county. COMHISSIONER HANCOCK: I think I have Commissioner Norris' language. In the fourth line of the area that's underlined where it says, "Said credit shall be based on," if we insert, "an amount no greater than the market value of the set-aside land prior to the rezoning action," that would -- that would mean that if George can get it cheaper, by God, do it. If you can't, then we've set a limit. Now, this does not address what Mr. Anderson has brought up regarding COMMISSIONER MAC'KIE: There's a couple of places where that language could go, not just -- COMHISSIONER HANCOCK: Is there? Okay. Other than that? COMMISSIONER MAC'KIE: (Nodded head.) COMHISSIONER HANCOCK: Okay. I was just looking for a smooth transition there to try and get -- if George can get it for less than that because the board has set a policy to say at the time the property was purchased, then he should continue going ahead and trying to do that. I don't want to handcuff him. But we still haven't addressed Mr. Anderson's concern regarding, if you tell us we can't use it yet you're not going to take it -- CHAIRPERSON MATTHEWS: What do we do? COMHISSIONER HANCOCK: -- where do we go from there, because that is a fairness issue, and I think it happens regularly. MR. ANDERSON: I have two more good fairness points too. CHAIRPERSON MATTHEWS: This might be something that we really can't resolve tonight. I'm serious. It sounds like we've got some wordsmithing to get where we want to go. COMHISSIONER CONSTANTINE: I don't know if I'd go that far. I don't know if I agree wholeheartedly that it's a fairness issue because this -- unlike other government takings, it's not like the south blocks where the government shows up, says, well, we want the property, and we're not quite prepared to pay for it now, but, geez, we're going to make permitting difficult and such. This is -- COMHISSIONER MAC'KIE: I'm here to tell you, from the outside it's a lot like that. COMHISSIONER CONSTANTINE: You don't mind if I -- well, if I finish my sentences. I don't think it is in that as you assemble the entire PUD, there is give and take on any number of fronts, and I think this is part of that. You are making that give in order to make the rest of that PUD possible. So this is not identical to one parcel being the government threatening to take or whatever. This is part of a PUD. This is part of that trade-off. I don't see it as black and white as perhaps Bruce does. CHAIRPERSON MATTHEWS: Commissioner MAc'Kie. COMMISSIONER MAC'KIE: Two cautions and an apology for interrupting you. It isn't just -- As drafted, it isn't just PUDs. It's any fezones and any conditional use. So that is a little danger zone there about whether or not the opportunity to negotiate exists. And mine -- mine is for Ken. I'm just feeling troubled by -- I don't want somebody in an eminent domain case against the county to come up and say, see, here's the board's policy, by God. They don't give a dang what the law is. They say we're going to -- we're putting it in our ordinance that we're going to take it and get it as cheap as we possibly can and, you know, case law be damned. That makes me a little nervous to adopt that as an official policy. Yeah, MArge. CHAIRPERSON MATTHEWS: He says, yeah, MArge. I've got it. COMHISSIONER MAC'KIE: I think I've got it. MR. CUYLER: I think the -- the difference in this case, and somebody spoke to it a little earlier, is you're talking about rights and obligations, and I understand there is a -- you know, to some extent a fairness consideration, but, you know, it's a cost of doing business. A developer comes in. He wants certain rights. He explains to the board why he should have those rights, why he's consistent with the comp plan, why he wants the density that he wants, and a part of his cost of doing business is to, you know, account for his impact. And, you know, whether the county takes the property tomorrow or takes it in five years, he knows that he's got to give that land. And I think all the staff is trying to do -- I mean, staff is not trying to be unfair in this. They're just trying to set some time frames, when are you going to do it, what are you going to do, how are you going to do it, what are we going to base it on, so we don't -- you know, George -- if we could put in there the developer pays what George says, I'd be the first one to think that's the best language we could do, but, you know, there comes times when George loses his ability to negotiate something, and somebody says, it's not in the PUD. I'm not doing it, or, I'm not paying "X" amount of money. I'm only going to -- or I'm not going to do it for "X" amount of money. I'll only do it for this. And I think if you have some basis in there for staff to work with -- and, you know, George does an excellent job, and he's saved the county tons of money over the years, and we hope he continues to do that, but if that falls through, there's some basis in there for staff to act on. CHAIRPERSON MATTHEWS: Is there some reason that we might want to consider putting language in this, that -- Mr. Cuyler, that, in effect, says in the event the public need for that land is delayed, thus and so could be negotiated, or something so that there is a negotiated arena? COMMISSIONER MAC'KIE: I don't understand what you mean by "arena." CHAIRPERSON MATTHEWS: Well, if the -- COMHISSIONER CONSTANTINE: A big stadium full of seats. CHAIRPERSON MATTHEWS: Yeah. A big stadium. You know, we bring -- COHHISSIONER HAC'KIE: Baseball is back. CHAIRPERSON MATTHEWS: We bring 150,000 people there to talk about it. No. No. What I'm talking about is if the use for that public land for a library or a park is going to be delayed for ten years or so before the county actually has a need and wants title to it and the county in -- when the developer does his site plan or whatever it is, the county makes it known that I don't need that land right now, that we provide some avenue where we can address this problem when it comes up. It doesn't sound to me like it's in every instance, but it's often enough that we need to address it, but I don't know how to do it. I mean, I'm not a land attorney. MR. CUYLER: You may want to -- Maybe this will satisfy Bruce's concerns, but when it talks about the impact fee credits only being effective after the conveyance, I would not object to, "unless otherwise approved by the Board of County Commissioners," or some general language to give you the ability because ultimately you're the one that has to look at these conveyance anyway. I mean, I think staff wants the board to be aware of these things and look at these things and just make decisions on them and have something to tie the developer when the time comes. But if you decide that, you know, we're going to give the impact fee credits in "X" PUD, we understand we're not yet going to ask for that conveyance for six or seven years or whatever it may be, I don't have any objection to that as long as that's an informed decision on the part of the board. COHMISSIONER CONSTANTINE: Could I just suggest that if Mr. Anderson has any final comments so we can see if there are any other public speakers and then try to decide where we're going to head with this. MR. ANDERSON: I do have a couple of more points. CHAIRPERSON MATTHEWS: Can you do it very -- We've spent a lot of time on this, I know, but if you can do it quickly, I would appreciate it. MR. ANDERSON: The proposal ignores the fact that even unzoned agricultural land is going to increase in value over time, and it does not take that into account when you have the delayed conveyance because you're tying it -- There needs to be some factoring in in this formula to account for an increase in ag in the value of similarly situated ag land. CHAIRPERSON MATTHEWS: I.e., infill land. COHMISSIONER NORRIS: Once again, Mr. Anderson, I don't mean to interrupt your presentation, but I just don't agree with you. What we're dealing with here is the negotiation process between the county and the developer on the PUD. This is all voluntary. If it comes to a point where nobody can agree, then we're going to go to court and settle it that way if it comes to that. So I don't think your concerns are valid here. MR. ANDERSON: I respect your position. COHMISSIONER NORRIS: You just don't agree with it. MR. ANDERSON: Reasonable men and women can disagree. CHAIRPERSON MATTHEWS: Can you get to the second point? MR. ANDERSON: My second point is there is a -- CHAIRPERSON MATTHEWS: Or you had a question. I'm sorry. COHMISSIONER HANCOCK: I did. I'm sorry. I did have a quick question on the last thing. Quick. Quick. I promise. What? Do you have dinner plans? CHAIRPERSON MATTHEWS: What? Do you have a dinner date? COMHISSIONER MAC'KIE: Have you got a date? CHAIRPERSON MATTHEWS: He's got a date. COMHISSIONER CONSTANTINE: Yeah. I just flew in from Tennessee today. COMHISSIONER HANCOCK: Well, it worked. I forgot my question. Good job. COMHISSIONER CONSTANTINE: Thanks. Sorry about that. COMHISSIONER HANCOCK: Oh. Remembered it. Sorry. You said on unzoned ag land, the value may go up. I don't see how that applies because we're talking about this only applies at the time of a fezone. In other words, the fact that it's part of a PUD or part of a fezone action, if unimproved or non-zoned ag land goes up, well, that's not what we're talking about. We're talking about decisions -- MR. ANDERSON: But you're not paying just compensation at the time you make the taking, at the time you take the property. COMHISSIONER HANCOCK: Okay. You're right. Reasonable men and women will disagree, and I disagree with you on that. MR. ANDERSON: Okay. CHAIRPERSON MATTHEWS: Can you move on to the second point, Mr. Anderson? MR. ANDERSON: Please. Thank you. My last point is -- and Mr. Cuyler may be able to address this in what he was talking about -- is that when you give impact fee credits -- I'll give you an example. The value of land in 1995 prior to its multi-family rezoning is $950,000. In 1995, $950,000 would buy you 100 multi-family units worth of road impact fee credits. Five years from now road impact fees are not likely to be the same as they are today. Let's say, for instance, they've doubled. If they have doubled by the year 2000, then the value of the impact fee credits that are based on your 1995 valuation have been cut in half so -- CHAIRPERSON MATTHEWS: Let me interrupt you right there because we have Mr. Hargett who's been doing our impact fee reviews, and he's telling us some of them ought to be reduced, not increased. So it goes up and down. It's going to go both ways. COHMISSIONER HANCOCK: And, again, as I was sitting here thinking earlier, one of the reasons when I went through writing and working on PUDs -- one of the reasons that we were so amenable to writing in, you know, impact fee credits at the time of development -- you know, that we'll get a credit for impact at the time of development was because, yes, the property value goes up, but it's kind of like rolling the dice. We had assumed impact fees would go up also. So you're hoping that you see a joint rise. And, Bruce, I don't know if there's anything we can do to ever guarantee that that would be consistent. And, again, Mr. Cuyler made a comment about the cost of doing business and I -- it's kind of a general term. I don't really like to use it too much, but there may be some concessions that are required at that point, and I just don't know that we can guarantee that impact fee credits will equal in ten years what they equal today for the same number of units. That's -- That -- I think that's too cumbersome to actually even broach. I don't know if you could define language that would provide for that, but it would be very difficult. MR. ANDERSON: We'd certainly like to have the opportunity to try. COHMISSIONER HANCOCK: I take that back. You will find language that you think does it but -- MR. ANDERSON: And, lastly, that 90-day period within which to comply with the county's demands to deed the property may not be sufficient. I would recommend that you build a little flexibility in there. You don't always have control over third parties. COHMISSIONER HANCOCK: I had a problem with that also because it stated that failure to complete the dedication within a 90-day period may result in recommendation to the board of reconsideration of the conditional use approval or rezoning the subject parcel from a -- That sounds good except that what if they've already started building? How can we reconsider their conditional use or fezone if they've already begun building because the dedication didn't work out down the road? MR. HULHERE: I think that was one option whereas, otherwise, it's provided for in 1.9.2. COHMISSIONER HANCOCK: Okay. MR. CUYLER: What is 1.9.27 Prosecution? MR. HULHERE: Yeah. CHAIRPERSON MATTHEWS: I '- MS. CAWLEY: Can I -- Can I make one -- Oh, I'm sorry. CHAIRPERSON MATTHEWS: I just want to comment on the difference in impact fees from one year to another, whatever they might be. I mean, Mr. Archibald had just brought up the case that sometimes the fezones and the PUD agreements are done so far ahead of time that it's unreasonable to do them when they're done and they've just been done too soon. That's -- That's the roll of the dice. I mean, I can't -- I don't see how we could possibly deal with that. MR. ANDERSON: You have control over when the dedication is made. CHAIRPERSON MATTHEWS: You have to be on the -- COHMISSIONER CONSTANTINE: Can you say it with the same enthusiasm again. MR. ANDERSON: You have the control over when the dedication is made and the impact fee credits are given. CHAIRPERSON MATTHEWS: I understand. Yes, Hiss Cawley? MS. CAWLEY: Could I -- Could I make one -- I've been sitting here listening and I -- I -- CHAIRPERSON MATTHEWS: Let's try and wrap this up. MS. CAWLEY: I can't help it. One of the things that I see in here is that you're also talking about schools, and I think we've really been focusing on roads quite a bit and my feeling -- my question is, have -- I don't believe this has been run by the school board to see if they're interested in taking possession of a piece of property within 90 days after they give notice or if they're -- you know, if they have a different procedure under state law in how they take control of property, and it seems to me that we're -- I mean, we may want to exclude schools from this, if nothing else. I mean, we're kind of putting ourselves in the middle of a whole different group. CHAIRPERSON MATTHEWS: Are you trying to delay his death tactic now? MS. CAWLEY: I'm -- I'm really not but I -- it just occurred to me that they do have their own procedures in terms of how they obtain property, and here we are putting another procedure on top of it, and I don't know that we want to do that. I mean, it may get real complicated, because that's a whole different agency that we're dealing with. CHAIRPERSON MATTHEWS: Fine. Mr. Cuyler, is it appropriate right now to close the public hearing? I think that was the last speaker. MR. CUYLER: It would be, yes. No one else is registered. CHAIRPERSON MATTHEWS: Close the public hearing. Do we have a discussion? COMMISSIONER CONSTANTINE: I'll make a motion we approve the changes to the Land Development Code as we have in front of us with the note we had agreed 5-0 to delete item two of the two we were speaking of, item two as it appears on page 16, period. COMMISSIONER HANCOCK: I have two -- CHAIRPERSON MATTHEWS: Do you want to amend it? COMMISSIONER HANCOCK: Yeah. I have two requests in that regard. The first is Mr. Archibald had mentioned that he is sometimes able to go below what this provides for, and I would ask that it be inserted that the -- in paragraph one that where it states, "said credit shall be based on," we insert, "an amount no greater than," and then it continues, "the market value of set-aside land prior." That's the first part. COMMISSIONER CONSTANTINE: I'll amend my motion. COMMISSIONER HANCOCK: The second part is do -- does this board feel the need to deal with what I've termed for no -- for lack of better words, the fairness issue of if they want to set the land aside or we ask them to set it aside, yet we don't need it for a period of time, the fact that the property owner continues to pay taxes on that land or that that land may increase in value and there's no specific compensation for it -- I recognize that that's a part of this. If we approve this, that may very well happen and I -- COMMISSIONER CONSTANTINE: I have no objection to us exploring that in the next cycle and seeing what we come up with, but I'm not going to amend my motion to reflect that. I think it's -- as has been stated, this is all part of a negotiation we're trying to come '- COMMISSIONER NORRIS: I'll second the motion as amended. COMMISSIONER CONSTANTINE: -- to some sort of an agreement. I will amend to include your first point. MR. CUYLER: There may be some bugs, and staff will be back to you in the next cycle or whatever cycle is appropriate if there's some bugs in this that the Development Community lets us know about or whatever. CHAIRPERSON MATTHEWS: Commissioner Norris, you have amended the motion as -- You seconded the motion as amended? COMMISSIONER NORRIS: Yes. CHAIRPERSON MATTHEWS: Okay. Discussion? Commissioner Mac'Kie. COMMISSIONER MAC'KIE: Just I -- If we are even contemplating that there are gnats, much less bugs, you know, we're talking about people's property. We can't -- MR. CUYLER: Well, only in the sense -- COMMISSIONER MAC'KIE: -- spend six months -- MR. CUYLER: Excuse me. COMMISSIONER MAC'KIE: But we can't fezone this. We can't do this again for six months. So in six -- For the next six months, people are just going to have to live with it who -- you know, that's just wrong. MR. CUYLER: Well, I meant bugs in the sense that even if you tell us to go work on this language for a year, there's going to be bugs in it. We always have bugs in all the language that we do in one way or another that affects people's property. I think that this language, you know, is where we want to be, and if Bruce comes to me and says, "I've got a PUD and here's something you guys didn't see. Would you take it into account," staff and I will be the first ones to say, yeah, we'll get it in front of the board and do that. COMMISSIONER MAC'KIE: My last comment just -- COMMISSIONER NORRIS: Let's me ask a question. Let me ask a question that may alleviate your concerns. COMMISSIONER MAC'KIE: Okay. COMMISSIONER NORRIS: Mr. Cuyler, if we find something that is unexpected in a PUD application that causes some harm to the applicant, does the board have the ability to waive that requirement and to approve this PUD with an amended -- MR. CUYLER: Yes. COMMISSIONER NORRIS: -- language in it? MR. CUYLER: Yes. There's -- There's a provision in the Land Development Code that's -- COMMISSIONER MAC'KIE: But we're talking about more than PUDs here. If you guys want to make this just PUDs, then I'll be more seriously thinking about supporting it. MR. MULHERE: We could put -- I was just going to offer, we could put the .... whereas otherwise approved by the BCC" in the second paragraph. We're talking about the 90 days of notification by the county that the property is needed for certain pending improvements. I mean, we could put some flexible language in, "or as otherwise approved by the BCC during the fezone." I mean, that would address -- That would give the board the opportunity to look at those issues. CHAIRPERSON MATTHEWS: Is the motion maker willing to consider that? If he's not -- COMMISSIONER CONSTANTINE: I'm sorry. I wasn't paying attention, Bob. MR. MULHERE: You were thinking about Tennessee. COMMISSIONER MAC'KIE: A little moment of honesty. COMMISSIONER CONSTANTINE: No. I was looking -- COMMISSIONER MAC'KIE: The 90 days. MR. MULHERE: What I was suggesting is that we could provide some language in there that states, "whereas otherwise approved by the BCC during the fezone action -- COMMISSIONER CONSTANTINE: Yeah. MR. MULHERE: -- or PUD action -- COMMISSIONER CONSTANTINE: That's fine. MR. MULHERE: -- or conditional use action." COMMISSIONER MAC'KIE: But that's only with regard to the 90 days how quick they have to give it to us, not -- not the other issues. How -- It's all as otherwise approved if it's -- MR. MULHERE: Right. COMMISSIONER CONSTANTINE: I mean, that doesn't seem to give us anything extra, but if that will make people happy, I'll be happy to include that as part of the motion. COMMISSIONER NORRIS: I'll amend. CHAIRPERSON MATTHEWS: Okay. We have another amendment to the motion, and that is to include in -- and I'm not sure exactly where, Mr. Mulhere. You'll have to tell us where. MR. MULHERE: I was talking about the second paragraph, shall be deeded -- the fourth line, "or dedicated to Collier County within 90 days of receipt of notification by the county that the property is needed for certain pending public improvements or as otherwise approved by the Board of County Commissioners during the rezoning conditional use or PUD zoning action .... CHAIRPERSON MATTHEWS: So we can make allowances -- MR. MULHERE: -- as the case may be. CHAIRPERSON MATTHEWS: - in that process. MR. MULHERE: What I was suggesting. CHAIRPERSON MATTHEWS: The motion maker has accepted that as an amendment. The second has accepted it? COHMISSIONER NORRIS: CHAIRPERSON MATTHEWS: COHMISSIONER HANCOCK: attorney. CHAIRPERSON MATTHEWS: COHMISSIONER HANCOCK: Yes. If there's no further discussion Just a question of the county Commissioner Hancock. In your opinion, the language -- if this is adopted as such, do we have any legal problems concerning not taking the dedicated area at the time of fezone? In other words, for us saying that this is the price -- the price is prior to the fezone but we don't want it for four or five more years, if we wait that time frame, do we have a legal problem in doing that? COMHISSIONER MAC'KIE: The lands banking issue is basically the question. MR. CUYLER: In my opinion, we do not because of the nature of the process. If this were an outside governmental action of some sort where you were either through a regulatory taking or a physical taking taking their property, that would be one thing, but through the nature of the PUD process, no, I think that they have a commitment to you to account for their impacts and whether -- you know, whether you build the road tomorrow or whether you build it in four years because that's when they're going to impact, and I think you're allowed to do that. COMMISSIONER HANCOCK: Because I don't mind keeping Mr. Anderson in business. I just don't want to be in court with him. COMHISSIONER CONSTANTINE: The landowner, the builder, whomever, has the opportunity to decline the agreement at any time which is the difference, I think, between a taking -- MR. CUYLER: Or to prove that he doesn't have the impact that the county says he has. COMMISSIONER MAC'KIE: One more question. CHAIRPERSON MATTHEWS: Commissioner MAc'Kie. COMHISSIONER MAC'KIE: I just have to ask to see if I can find a way to vote for it. Are you willing to make this to apply only to roads and not to parks and schools and other dedications? COMHISSIONER CONSTANTINE: No. MR. CUYLER: Bob, this language -- it says, "where the term Collier County is used in this section shall be construed to include Collier County water sewer district, any other agency, or dependent district of Collier County government." You have read this to include the school because the schools are included in the PUD section in terms of impact-related dedication? MR. MULHERE: That's correct. And, actually, that language was in there prior to us making any changes, schools. Schools was -- has been in the code. COMMISSIONER MAC'KIE: But it didn't relate to these same issues. MR. MULHERE: No. It did not -- It did not relate to these same issues. COMMISSIONER MAC'KIE: And that's the significance. MR. MULHERE: One other very brief item. Mr. Anderson asked me to put on the record and I just think it's appropriate that obviously this language would not apply to existing PUDs unless they came in and went through a PUD amendment in which case then we could apply this part of the section. MR. CUYLER: But this language will go in the straight fezone and the conditional use sections -- COMMISSIONER CONSTANTINE: Just for my own clarification MR. CUYLER: -- if it passes. COMMISSIONER CONSTANTINE: -- I'll repeat my motion. This is to approve the LDC as amended with the exception of -- we'll delete item two. We'll have the amendment as suggested by Commissioner Hancock initially and also the Mulhere amendment included. CHAIRPERSON MATTHEWS: Okay. We have a motion. We have a second. Is there further discussion? There being none, I'll call the question. All those in favor please say aye. Opposed? Motion fails. Is there another motion? COMMISSIONER HANCOCK: I just -- I don't want to throw the baby out with the bath water because I think there's a real benefit to the county here. I think it's -- it set things-- sets things on solid ground. COMMISSIONER CONSTANTINE: What is your objection, Commissioner Hancock? COMMISSIONER HANCOCK: My objection is just the time frame in which requiring land being set aside but it could be ten or 15 years before the county requires a dedication, yet it maintains and stays on the tax roll. If we could tell him at the time of bringing in the fezone or the PUD to say it's going to be five years so that they know at that time that they have five years of taxes to pay on that land, they are then making a value judgment as to whether or not they want to enter that agreement. But if we give them an unspecified time frame before we ask that the land be dedicated, they really don't know how long they're going to have to pay taxes on it before it's given to the county before the county asks for it. And, in fact, it could be never. It could be 20 or 25 years before it's removed. So I feel like we're not asking them to step into an agreement. We're asking them to leave it open-ended. And this may apply to more -- I know we're thinking big developers, but I think this has some smaller application to five- and ten-acre parcels that are now required to come in and do PUDs because of the overlay they're within and so forth and I just -- I just think they're entering something that they don't know the full fiscal effect of. COMMISSIONER CONSTANTINE: Well, I think just by the nature of a development, you're going -- you take some risks. You don't know what the market will be. We had one here yesterday where they hadn't developed it and they wanted a change more to residential because the market had changed since the PUD was approved originally in 1987. The market changes, and I think the whole process is speculative. And so to suggest that we need to make this one tiny area of their PUD be -- or fezone, what have you, be absolute I think is putting a cumbersome task on the county that none of the rest of their project has in mind. As far as a small thing, you reference this could have an impact on small projects as well an individual with five acres. I'm guessing that would be with some future road need we might have a taking, but the amount of money you're talking there is going to be '- I'm sure that owner -- It's a worthwhile amount, but it's going to be next to nothing. If you have a five-acre parcel that they want to build a home on and have rezoned to allow for that and we know we're going to take 60 feet off the front lawn, when you start doing the math on 60 feet times 200 feet and how much that adds up to in taxes over five years -- CHAIRPERSON MATTHEWS: Why don't we consider this, that within the PUD document, assuming that we're talking about a PUD -- COHMISSIONER HANCOCK: But it applies to fezones also. CHAIRPERSON MATTHEWS: Okay. But most of these I believe -- and correct me if I'm wrong. You guys do the land planning. Most of this affects PUDs where we're looking at land that's being rezoned as a PUD right now, and at some future point in time the county is going to want land for whatever reason they want it for. What if we were to include a request in the PUD that the county take the property within a specified period of time. COHMISSIONER MAC'KIE: I can agree with that. CHAIRPERSON MATTHEWS: And at least then the property owner knows that within whatever the agreed upon time is -- and I would assume that they should be able to agree upon that time -- that the county has to take ownership of that property within that time. COHMISSIONER CONSTANTINE: Your suggestion is that that would be negotiated during the PUD process -- CHAIRPERSON MATTHEWS: Uh-huh. COHMISSIONER CONSTANTINE: -- at the property owner's request? COHMISSIONER HANCOCK: Or fezone or conditional use process since they're all similar steps. CHAIRPERSON MATTHEWS: They're all related. Commissioner Hac'Kie. COHMISSIONER MAC'KIE: For my money that just -- it's got -- it gets -- you know, it's an improvement, but it's one example of the problem that indicates to me we haven't thought this one out carefully enough, and I don't know why the right thing to do isn't to let this one wait for the next cycle. COHMISSIONER CONSTANTINE: Commissioner Hancock, are you comfortable with Commissioner Matthews' suggestion? COHMISSIONER HANCOCK: It goes -- It really goes the better part of the way to solving my concern for the simple reason that I want the petitioner to know what it is they're agreeing to, and if that time frame cannot be agreed upon, then the -- then -- you know __ CHAIRPERSON MATTHEWS: They don't have a PUD. They don't have -- COHMISSIONER MAC'KIE: Mr. Cuyler, are we going to have a temporary taking at that point? COHMISSIONER HANCOCK: Does the fact that sacrifice the fezone -- COHMISSIONER MAC'KIE: I mean, we haven't done anything __ COHMISSIONER HANCOCK: Can you not fezone then? COHMISSIONER CONSTANTINE: One speaker at a time. COHMISSIONER MAC'KIE: Sorry. There's no court reporter. COHMISSIONER CONSTANTINE: Yes, there is. COHMISSIONER HAC'KIE: She's invisible. COHMISSIONER HANCOCK: In other words, if we say the agreed time frame is five years and the petitioner says, no, we want you to take it now because that's fair, you know, that's their point, does the fezone then go away? In other words, is it not approved because of that point? COHMISSIONER NORRIS: That's up to this board. COHMISSIONER CONSTANTINE: I guess that's part of the negotiation. CHAIRPERSON MATTHEWS: It's a negotiated settlement. I mean, I'm certain most -- most developers will want the county to take it right now, and we're going to have George saying, gee, I don't need it for six years, but I'll agree -- but I'll agree to get this going to take it in four. I mean, that's a negotiated process. COHMISSIONER CONSTANTINE: I think it does what you -- and when I asked initially five minutes ago, what is your concern with that motion and you indicated that they don't know, there's a variable there of unknown, and that will give them a known. They may not be happy that it's four years instead of within the year, but they will know, and I think it answers that question. CHAIRPERSON MATTHEWS: Commissioner Hac'Kie. COHMISSIONER MAC'KIE: Do we want to make this change without having anybody advise us on what the financial repercussions of this are to the county? I mean, now we've just said we're going to right up front decide when we take the property off tax rolls whether we need it or not. I just think it's another indication that this process, this concept needs more thought. CHAIRPERSON MATTHEWS: Let me call Mr. Archibald back up. Mr. Archibald, when we have people going through a fezone or a PUD or conditional use and they're talking with you about what the county's needs are going to be at some future point in time, do you generally at that time in all of your vast experience -- and I know you have a lot of it -- have a real good conceptual idea of when you're actually going to need that property? MR. ARCHIBALD: Yes. CHAIRPERSON MATTHEWS: Yeah. I thought you would say yes. And if the property owner were to say, I want you to take this property now so I can get my PUD or get the fezone done now, if you were to refuse to take that property, would you not be able to negotiate some sort of an agreeable time frame at which you would take it? MR. ARCHIBALD: Yes, I could, if we had language like this to back up those negotiations. COHMISSIONER CONSTANTINE: Commissioner Hancock, if you're comfortable -- if that does, indeed, answer your main concern, I'll make a motion we approve the LDC with the amendments as described earlier with -- including the Hancock and Hulhere amendments and including what now we'll refer to as the Matthews amendment, this amendment as well. COHMISSIONER NORRIS: I'll second that. COHMISSIONER HANCOCK: I have a question for Mr. Cuyler. I keep getting caught in playing attorney, and I'm not one, so I'm just going to ask this one more time, and then I'm either going to be comfortable or I'm not with this. It's always been my opinion that when you tell someone you can't use your land, well, then, by God, write a check for it. I used "by God." That's the eighth time tonight. COHMISSIONER CONSTANTINE: That's the phrase of the night. COHMISSIONER HAC'KIE: Phrase of the night. COHMISSIONER HANCOCK: You know, write a check for it. It's my opinion on the Belle Head. It's my opinion on just about every land acquisition program that ever came to man. Don't put it on a list. Don't tell us you're going to take it unless you have a checkbook in hand. Okay. Is that -- obviously that's not written in stone legally somewhere because it's going on in other ways, but I guess I keep feeling like this -- that, again, saying five years, you know, then everybody knows. We know what we're entering, and it becomes a negotiated deal, in my opinion, but please set me at ease here. Are we within a considerably reasonable -- Can you use those words together -- legal position to do that? MR. CUYLER: Yes. In most -- In many cases -- and I don't want to tie myself in either. But in many cases you're correct in your general statement. But when you have a petitioner who comes to you and says, "Here's land. Here's how I propose to use it. I'm within certain rules and regulations. I'm going to have 'X' impact on the roads. I'm going to need to dedicate something," and Mr. Archibald says, "You need to dedicate so much. We're not going to need it for four years. Do you understand that? Yes, I do. Here's your 600 units or whatever it is," that is not a taking. That is a right and an obligation that co-exists under the development agreement between the county and the -- COHMISSIONER HANCOCK: Provided it's tied to the impacts created by the development itself. MR. CUYLER: Correct. COHMISSIONER HANCOCK: Okay. And if this should prove ineffective or prove problematic at some point, do we have the ability as a board to make an emergency amendment to the LDC? MR. CUYLER: Yes. COHMISSIONER NORRIS: All set. COHMISSIONER HAC'KIE: There's right and then there's legal. CHAIRPERSON MATTHEWS: We have a motion, and we have a second to that motion. If there's no further discussion, then we'll call the question. All those in favor please say aye. All those opposed? Motion passes 4-1. COHMISSIONER NORRIS: Miss Filson. CHAIRPERSON MATTHEWS: Does that finish with us for this evening? Hiss Filson, you have changed. Are we finished for tonight? MR. CUYLER: We are finished. CHAIRPERSON MATTHEWS: We're adjourned. There being no further business for the Good of the County, the meeting was adjourned by Order of the Chair at 6:36 p.m. BOARD OF COUNTY COHMISSIONERS BOARD OF ZONING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL DISTRICTS UNDER ITS CONTROL BETTYE J. MATTHEWS, CHAIRPERSON ATTEST: DWIGHT E. BROCK, CLERK These minutes approved by the Board on as presented or as corrected TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING BY: Christine E. Whitfield, RPR