BCC Minutes 07/18/1995 R REGULAR MEETING OF JULY 18, 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 9:00 a.m. in REGULAR SESSION in Building
"F" of the Government Complex, East Naples, Florida, with the
following members present:
ALSO PRESENT:
CHAIRPERSON:
VICE-CHAIRMAN:
Bettye J. Hatthews
John C. Norris
Timothy J. Constantine
Pamela S. Hac'Kie
Timothy L. Hancock
W. Neil Dotrill, County Hanager
Kenneth B. Cuyler, County Attorney
Item #2A
AGENDA AND CONSENT AGENDA - APPROVED WITH CHANGES
CHAIRPERSON MATTHEWS: I'm going to call to order the
Board of County Commission meeting for Collier County for July 18,
1995.
Mr. Dotrill, would you lead us in an invocation and
pledge.
MR. DORRILL: Heavenly Father, we give thanks today.
We give thanks, as always, for the opportunity that we have as public
officials and elected leaders to guide Collier County. We thank you
for the brief summer recess that we have had to be able to spend time
with our families on vacation and to regroup. We thank you, as
always, for this great country that we have. We pray for our
commander in chief and other elected officials who guide this country
and this state. And, as always, it is our prayer this morning that
you bless our time here together this morning as the commission makes
these important decisions that affect our community. We would ask
that you bless this time together, and we pray these things in your
son's holy name. Amen.
CHAIRPERSON MATTHEWS: One second. We have a special
treat today.
(A color guard entered the room and presented colors.)
(The pledge of allegiance was recited in unison.)
CHAIRPERSON MATTHEWS: Mr. Dorrill, we have some
changes to the agenda?
MR. DORRILL: Yes, ma'am. Good morning, Commissioners.
We have very few changes this morning. We have just a couple of
add-on items and then one other change. The first add-on item is item
8(F)(1), which will be under emergency services as it pertains to a
request concerning the closure of 1-75 and Alligator Alley crossovers.
That request is in conjunction with a need for the Golden Gate Fire
and Rescue District, 8(F)(1).
We also have under 8(B)(2) under transportation and
budget amendments to correct the funding for Immokalee four-laning.
I would like to delete and withdraw two items. The
first is 16(D)(1), which was a hardship assistance case for an
assessment deferral, and also 16(H)(2), as it was a duplication for an
item that appears on the regular agenda but will be continued for one
week.
I have one item that I would like to move off of the
consent agenda and onto your regular agenda today for presentation.
It was 16(E)(1) -- is moving and will become 8(E)(1) under
administrative services concerning a budgeted position for human
resource affairs for the 1995 budget.
I have two budget -- two agenda notes this morning.
The first is that David Weeks from planning services will be receiving
his 10-year award today. And, in addition, I wanted to remind you
that we had received a request from one of the parties involving the
Hideaway Beach item to determine a time certain for that item at some
point during today's agenda.
Aside from that, it appears that somebody on the staff
has left a smiley face made out of thumbtacks on the bulletin board
behind me during our recess. We'll hope that is a good omen for
things to come today.
all.
COHMISSIONER NORRIS:
CHAIRPERSON MATTHEWS:
COHMISSIONER HANCOCK:
CHAIRPERSON MATTHEWS:
COHMISSIONER MAC'KIE:
CHAIRPERSON MATTHEWS:
Hadam Chairman, that is all that I have.
CHAIRPERSON MATTHEWS: The smiley face isn't too bad at
Commissioner Norris, do you have additional changes?
Nothing further.
Commissioner Hancock.
No, ma'am.
Commissioner Hac'Kie.
No, ma'am.
Commissioner Constantine.
COHMISSIONER CONSTANTINE: One brief item, which will
be 10(B), and that is for ratification and reappointment to the Lee
port authority special management committee.
CHAIRPERSON MATTHEWS: I don't have any further changes
to make.
COHMISSIONER NORRIS: Ms. Chairman, I'll make a motion
that we approve the agenda and consent agenda with the changes as
made.
COHMISSIONER CONSTANTINE: One suggestion. There was a
question about a time certain on the Gibson item. I think there is
only one item after that on the agenda, and I might suggest we -- I
was going to suggest that we take that as last since it will probably
be lengthy, and I don't want anyone to sit for several hours waiting
for their item to come up.
CHAIRPERSON MATTHEWS: There are two -- three or four.
Two of them are requesting extensions of conditional uses which
normally don't take very long.
MR. CUYLER: Those are the only two items. After that
are those two items.
CHAIRPERSON MATTHEWS: Would it interest the board to
move those two items ahead of the Gibson items so that --
COHMISSIONER NORRIS: I'll amend my motion to move
13 (B) and 13 (A) (2) .
CHAIRPERSON MATTHEWS: Okay. So we'll take those ahead
of 13(A). Also we have a request from bond counsel, who are
contracted and paid for by the county government, to have a time
certain on item H(4), and I would suggest that they expect to be here
between 10:30 and 11:00. And since we do pay their salaries on an
hourly rate, we may want to take that when they get here, not before
10:30, but when they arrive or soon thereafter.
Okay. With that we have a motion to accept the agenda
and the consent agenda as altered. Is there a second?
COHMISSIONER CONSTANTINE: I'll second that.
CHAIRPERSON MATTHEWS: We have a motion and a second.
All those in favor please say aye.
Opposed?
There being none, motion passes 5 to 0.
Motion for the minutes.
Item #3
MINUTES OF JUNE 1, 1995 TRI-COUNTY JOINT WORKSHOP; JUNE 6, 1995 REGULAR
MEETING; JUNE 13, 1995 REGULAR MEETING; JUNE 14, 1995 BUDGET MEETING;
JUNE 19, 1995 BUDGET MEETING; JUNE 20, 1995 REGULAR MEETING; AND JUNE
21, 1995 BUDGET MEETING - APPROVED AS PRESENTED
COMMISSIONER CONSTANTINE: Motion to approve the
tri-county joint workshop minutes of June 1; the regular and budget
minutes of June 6, 13, 14, 19, 20, and 21, all in the year 1995.
COMMISSIONER MAC'KIE: Second.
CHAIRPERSON MATTHEWS: We have a motion and a second to
approve various meetings as outlined.
All those in favor please say aye.
Opposed?
There being none, motion passes 5 to 0.
Item #4A
PROCLAMATION RECOGNIZING THE CIVIL AIR PATROL AND THE MARCO ISLAND
SENIOR SQUADRON FOR ITS CONTINUOUS OUTSTANDING SERVICE TO COLLIER
COUNTY - ADOPTED
Under proclamations and service awards, first a
proclamation. Commissioner Norris.
COMMISSIONER NORRIS: Thank you, Madam Chairman. Could
I get Fritz Schaller to come up? Right here, Fritz. You've got to be
on television today, and if you will face the world at large here,
I'll read this proclamation for you.
Whereas, the Civil Air Patrol engages in missions of
importance and value to Collier County; and
Whereas, the Civil Air Patrol, an auxiliary of the
United States Air Force, is composed of volunteer members who devote
their time, energy, and occasionally their lives in service to their
communities; and
Whereas, the Marco Island Senior Squadron of the Civil
Air Patrol has engaged in life-saving search and rescue missions in
Collier County; and
Whereas, the Marco Island Senior Squadron has
continually flown sundown patrols and provided services including
damage assessment flights and aerial video monitoring of Marco Island
Beach; and
Whereas, the Marco Island Senior Squadron has been
designated the outstanding senior squadron of the year by the Florida
wing of the Civil Air Patrol; and
Whereas, it is appropriate that we recognize this
coveted honor and the continuing service of the Civil Air Patrol and
the Marco Island Senior Squadron to the welfare and safety of the
residents of and visitors to Collier County.
Now, therefore, be it proclaimed by the Board of County
Commissioners of Collier County, Florida, that the Civil Air Patrol
and the Marco Island Senior Squadron be recognized for its continuous
outstanding service to Collier County.
Done and ordered this 18th day of July, 1995 by the
Board of County Commissioners of Collier County, Florida.
Ms. Chairman, I'll make a motion that we accept this
proclamation.
COHMISSIONER HAC'KIE: Second.
CHAIRPERSON MATTHEWS: We have a motion and a second to
accept the proclamation. It gives me great pleasure to call the vote.
All those in favor please say aye.
Opposed?
There being none, the proclamation is accepted.
(Applause)
MR. SCHALLER: Commissioners of Collier County, I am
overwhelmed, and thank you so much for recognizing the senior squadron
which worked so hard for the county and, of course, the nation, if we
do have a problem in search and rescue. I don't want to go on too
long about our squadron, because I am very proud of it, as you know.
I just want to thank you people for recognizing us today, and thank
you.
CHAIRPERSON MATTHEWS: You are very welcome.
(Applause)
(The color guard removed flags and retreated.)
Item #4B
EMPLOYEE SERVICE AWARDS - PRESENTED
CHAIRPERSON MATTHEWS: Thank you. Next item on the
agenda are service awards. Commissioner Constantine.
COMMISSIONER CONSTANTINE: We have the pleasure this
week of presenting service awards to six of our employees. Three of
them have been with us for five years, and I would ask as I read your
name to please come on up, and we have the five-year pin and also a
certificate for you. From our code enforcement department, which has
been kept particularly busy as of late, Virginia L. Pack, five years.
(Applause)
From utilities, also five years, Pauline Stringer.
(Applause) And from project plan and review, five years, Glenda
Smith. (Applause)
And we have three employees who have been with us for
ten years; David Weeks with long range planning. We had him written
down as parks and recreation. I don't think that -- (Applause) More
correctly from parks and recreation, Timothy Pettay. (Applause) And
from road and bridge, Lloyd Gift. (Applause)
Item #4C1
JACK HIGHTOWER, ENVIRONMENTAL SERVICES DIVISION RECOGNIZED AS EMPLOYEE
OF THE MONTH FOR JULY, 1995
CHAIRPERSON MATTHEWS: Next item on the agenda are
presentations, and first will be a presentation to our employee of the
month. As most of you know, we make this presentation every month,
and it is to a person nominated and selected by the employee
committee. It gives me great pleasure to say that this month Jack
Hightower from stormwater management -- are you here, Jack? How are
you doing? You want to turn around to tell everybody about the good
things you have been doing?
Jack came to work for Collier County in November of
1984 and after 15 years of heavy equipment as an operator in or local
marine industry, our stormwater management department has capitalized
upon his dedication and experience. He has now achieved the position
of senior equipment operator. A most accomplished equipment operator,
he is consistently assigned to the most difficult and exacting tasks
and accomplishes these assignments on time and with unique skill
evidencing the highest order of perseverance and dedication. He
willingly imparts his knowledge in training less experienced
employees, thus contributing to the collective ability of the
department. He recently performed the lake excavations at the
Government Center and the fairgrounds agricultural complex. He
consistently receives excellent to superior performance appraisals and
contributes well to the morale of his department. He is very loyal to
Collier County, and it is without reservation that he has been
nominated and selected as employee of the month for July of 1995.
Jack, I have for you a letter which I will read. It is
indeed a pleasure for us to announce your selection as Collier
County's employee of the month for July 1995 as well as deserved
recognition for your valuable contribution to the county through your
work in the stormwater management department. This honor includes an
exceptional performance plaque, which I have here, as well as a Fifty
dollars cash award which I am proud to present to you. On behalf of
Collier County Commissioners, I offer you our sincere congratulations
in your earnest endeavors.
This plaque is quite nice, and I'll read it. The Board
of County Commissioners, Collier County, Florida, employee of the
month, official recognition and appreciation is tendered to Jack H.
Hightower for exceptional performance, July of 1995. I really want to
congratulate you. (Applause)
Here is the letter, your plaque and that very spendable
fifty dollars.
Item #4C2
KIH BELL, PORTFOLIO PHOTOGRAPHY, RECOGNIZED FOR SUPPLYING THE COVER
PHOTO FOR THE COMPREHENSIVE ANNUAL FINANCIAL REPORT FOR THE YEAR ENDED
SEPTEMBER 30, 1994
Next item on the agenda is a presentation. Commissioner
Hancock.
COMHISSIONER HANCOCK: Today Ms. Bell was unable to be
here and has communicated with this office and said she will come by
and pick up what we are going to give her. In recognition today was
for her photography supplied -- she supplied the cover photo for the
comprehensive annual financial report, which unfortunately I just gave
to Ms. Filson, but it is a very attractive photo, and we have tendered
recognition thanking her for her efforts. Ms. Bell, if you are out
there watching, thank you very much. There it is. (Indicating)
Item #4C3
TURKEY NECKTIE PRESENTED TO COUNTY MANAGER DORRILL
COHMISSIONER NORRIS: Madam Chairman, with the board's
indulgence, I have one more slight award that I would like -- or
presentation I would like to make.
CHAIRPERSON MATTHEWS: Certainly.
COHMISSIONER NORRIS: Recently we've had some serious
discussions with our county manager on such areas as budgeting and
consolidation departments and the human resources department, and
there has been a lot of concern in -- but to his benefit though he has
responded and has started to make these changes that we have demanded,
and everything seems to be on progress. There was some concern that
there may be a necktie party at some point -- at some point in time.
That does not seem to being forthcoming. But since we're not going to
have the necktie party, I thought it would be appropriate to award Mr.
Dotrill the necktie that we were to use at this time.
MR. DORRILL: Thank you. (Laughter and Applause)
COHMISSIONER HANCOCK: Is this one of yours you didn't
want anymore, John?
CHAIRPERSON MATTHEWS: Let's see what this tie looks
like.
MR. DORRILL: A turkey tie.
COHMISSIONER MAC'KIE: A turkey tie.
MR. DORRILL: Thank you.
COHMISSIONER NORRIS: You're welcome.
Item #5A
BUDGET AMENDMENT 95-384 - ADOPTED
CHAIRPERSON MATTHEWS: Next item on the agenda are
budget amendments. Mr. Smykowski.
MR. SMYKOWSKI: Good morning, Commissioners. For the
record Michael Smykowski, acting budget director. There is just one
budget amendment on the budget amendment report this morning simply
placing funds into a project number.
CHAIRPERSON MATTHEWS: Is there a motion?
COMMISSIONER CONSTANTINE: Motion to approve.
COMMISSIONER HANCOCK: Second.
CHAIRPERSON MATTHEWS: We have a motion and a second to
approve the budget amendment.
All those in favor please say aye.
On the end?
COMMISSIONER MAC'KIE: Aye.
CHAIRPERSON MATTHEWS: Aye. Motion passes 5 to 0.
Thank you, Mr. Smykowski.
Item #7A
GEORGE E. WATSON REGARDING POWERLINE EASEMENTS - STAFF TO MEET WITH
FLORIDA POWER AND LIGHT REPRESENTATIVES AND REPORT BACK IN TWO WEEKS
Next item on the agenda is item 7, public petitions.
We have two today. The first one, Mr. George E. Watson regarding the
power-line easements.
Mr. Watson, you are now under the rules of public
petition. Sir, you are allowed ten minutes. MR. WATSON: I got it in the letter.
CHAIRPERSON MATTHEWS: We don't make any decisions
today. The only decision we would make is to direct staff to bring it
back at a later date.
MR. WATSON: I live at the Riviera Golf Estates, 95
Lemans Drive, and this pertains to a power line that our property
abuts. I have some maps here. I have one color coded here. I only
could get one made. I would like to have that passed around, and then
maybe other people would know better what the heck I am trying to get
done here. Those there are just smaller ones that I've tried to mark
out.
But this land -- we all know about this land out here,
and it's owned by a man by the name of Lee Nichols, as I understand,
and I understand that it is zoned agricultural property. Therefore,
he does not have to cut this property or take care of it in any way.
There is nothing agricultural on that land. There's no fences.
There's no cattle. There's no fruit trees. There's nothing. And I
don't know why we can't get this property cut about four times a year.
We don't care what it is zoned or how it is zoned. We would like to
get it cut so that our property out there would look halfway decent,
and that is all we are asking, and I don't think that is asking too
much.
CHAIRPERSON MATTHEWS: Commissioner Constantine, do you
have questions?
COMMISSIONER CONSTANTINE: Just a comment. I tried to
work a little bit on this with Mr. Watson. This is kind of a strange
stretch. This is where the FPL pole runs through just west of the
ground point and some of the others all the way down, and FPL owns
some of it, and Nichols owns some of it.
MR. WATSON: It's on that map. It's all sketched up.
Who owns what is all color coded. I just couldn't get a bigger map
for everybody.
COMMISSIONER CONSTANTINE: The reason it is
agricultural is just a lot of it used to be and as it filled in, this
was what was left after everything else had be rezoned. Mr. Watson is
right. He is kind of stuck in a strange place. This is his backyard
by default, and I've tried to get a hold of Mr. Nichols with limited
success. I'm not sure legally how we can approach this, but it seems
like -- I know FPL in the past had mowed it a couple of times a year
anyway.
MR. WATSON: There was a man by the name of Bill
Markswell (phonetic), and I used to call him, and how he did it or how
-- I have no idea. But he used to get it done for us out there, and
it was great. We appreciated it. But I don't think asking four times
a year to keep this -- we've got nothing but snakes out there, stray
cats out there, raccoons out there, a lot of mosquitoes, and clear the
site now -- they've built that up a lot, and they're getting a little
tired of looking at it. I've talked to some of the people the other
day over there, and they -- just cut it four times a year. That is
all we are asking. If you can get it done -- if you can't, you can't.
CHAIRPERSON MATTHEWS: I have one question. Mr. Cuyler,
do our ordinances covering tall grasses apply to agricultural
property?
MR. CUYLER: It's not going to be applicable under
these circumstances I don't believe, but we'll be happy to check it
out. As a matter of fact, either the manager's office or my office
could call Florida Power and try to get in touch with the owner and
see what we can do at least cordially to start with approaching it
that way.
CHAIRPERSON MATTHEWS: Commissioner MacKie.
COHMISSIONER MAC'KIE: My question was what zoning
category would there have to be in order for the clearing to be
required.
MR. CUYLER: It is generally residential. They're
generally platted residential unimproved lots that we deal with those.
And then if it is garbage, that falls under another category, but
the weeds and trash are generally under the nuisance ordinance.
COHMISSIONER MAC'KIE: Just zoning it residential,
would we also have to plat it?
MR. CUYLER: They're generally -- they talk about--
I'll tell you what I need to do is look at where this is compared to
what our ordinance is saying and see if it falls under anything. If
it doesn't fall under anything that we can pursue actively -- legally,
then we can make a call and see if we can get a handle on it.
MR. WATSON: Come to my home. I'll be happy to show it
to you. You wouldn't want it in your backyard, and down in Port Royal
they don't want it in their backyard. And we're taxpayers too.
COHMISSIONER MAC'KIE: It seems to me that we could --
I mean the direction I would like to give is to tell us if there is a
way to get it cleared under the existing ordinance. If not, we could
fezone it. Let's fezone it if that is what it takes. MR. WATSON: Good idea.
CHAIRPERSON MATTHEWS: Commissioner Hancock.
COHHISSIONER HANCOCK: I don't disagree with that. But
I think the first step is just as Mr. Cuyler identified. Let's have a
staff member set up a meeting with FPL. When you have an easement on
a property for your use, it is your responsibility to be a good
neighbor, and I think we can just easily ask FPL to get involved in
this and take some responsibility for maintenance of an area that they
use that they charge customers for.
MR. DORRILL: We had done that once probably a year ago
with the cooperation of Commissioner Norris and at the time the
current general manager at FPL I believe is Terry Hall (phonetic), and
we might give him a call. For those of you who aren't aware, FPL has
really undergone some restructuring the last two years especially
concerning their utility line maintenance crews. It is my
understanding that they really -- most of the crews now come out of
Fort Myers and are either contractors, and so the amount of operating
activity that they have here at the Naples substation of Goodlette
Road has really been cut back, but they have helped us once before. I
think the gentleman is looking -- trying to get this on a schedule so
that he doesn't have to call the commissioner.
MR. WATSON: It's a pain in the butt for everybody.
COHMISSIONER CONSTANTINE: Part of the initial contact
could be with Mr. Nichols who is actually the property owner back
there and then at least FPL.
CHAIRPERSON MATTHEWS: That's -- hello.
MR. WATSON: All set?
CHAIRPERSON MATTHEWS: Yes, Mr. Watson. I think we'll
wait to hear what Mr. Cuyler and Mr. Dotrill have to tell us at some
later date as to what efforts are available to us.
COHMISSIONER CONSTANTINE: Do we want to set a time
frame for a couple of weeks?
MR. DORRILL: I think that would be fine.
MR. WATSON: Seven, eight years -- twelve years that I
have been here, I think two weeks we ought to be able to get something
done.
CHAIRPERSON MATTHEWS: Mr. Dorrill, would you be in
contact with Mr. Watson when you have an answer to his question?
MR. DORRILL: Fine. It helped him here today. He and I
had become good friends.
Item #7B
STAFF TO WORK WITH HR. COURTNEY EAGLESTON REGARDING ORDINANCE 92-61,
CONTRACTORS LICENSING ORDINANCE
CHAIRPERSON MATTHEWS: Thank you. Still under public
petition, the second public petition, Mr. Courtney Eagleston regarding
Ordinance 92-61. Mr. Eagleston, you're also aware that there is a
ten-minute limitation.
MR. EAGLESTON: Yes, ma'am. My name is Courtney
Eagleston, and I'm coming before you and asking you to grandfather my
sign license under 94-34.1.6.3.41, which is an amendment to 92-61
which the master ordinance is 90-105. And the reason is because
mainly I have a disability, and I think Ken has just given you a
letter along with an affidavit from an electrician which qualifies my
work. During your vacation I dropped off a letter along with my
license and some other letters as recommendations from the building
departments up north where I had worked for 20 years. So I have been
to the licensing board, and they told me I have to come before the
county commissioners because you have the authority to grandfather a
license. I also called the state electrical licensing board and was
told the same thing, that they do not dictate to the counties on
policy, that it's to the counties, and it is the county commissioners
that I would have to go for approval.
With my qualifications, if you all have had a chance to
read over these, I am well-qualified, more than qualified for doing
the work that I have been doing. I have been doing this work for over
eight years on my own, two years with another company in Collier
County installing electrical signs. 95 percent of my work is
electrical signs, so this -- to take a test which cost $1500 is a
hardship on me, and I am asking you to waive that and to grandfather
my license under this new ordinance, which I was never informed of,
was never invited to any of the workshops or hearings. I knew nothing
about any of this, so this is why I am asking.
CHAIRPERSON MATTHEWS: Questions? Commissioner
Hancock.
COMMISSIONER HANCOCK: Mr. Eagleston, you were at-- I
do recognize you from the last time that we had the discussion
regarding electrical sign contractors. At that point the discussion
centered on the fact that people in the business who saw this coming
had to go out and spend their $1500 and do all the work to complete
the tests, and now they have been certified to do electrical signs
there. They are electrical sign contractors. MR. EAGLESTON: Right.
COMMISSIONER HANCOCK: I don't know that we have any
history or any pattern of $1500 becoming a hardship. I guess I am
looking for the exception. Why are you any different from those
people that took the time and planned ahead for the money to receive
-- to go and take the test and pass the test? I just don't see a true
hardship here, sir.
MR. EAGLESTON: Well, I have a lot of medical bills,
because I have had two total knee replacements, and I'm out of work
quite a bit. From time to time I'm out of work for months at a time,
so I'm not able to actually make a living as normal. I have a lot of
medical bills. My education is ten years with Burrows Electronics,
and most of that was in electronic training, and I earned the status
of computer electronics engineer. I also have a real estate license,
which I have a broker's license, and I've taken the business and law
test, which is part of this test, twice and passed it.
CHAIRPERSON MATTHEWS: Mr. Eagleston.
MR. EAGLESTON: Yes.
CHAIRPERSON MATTHEWS: Historically with public
petitions we don't make decisions on the day they are presented. I
would think -- and I don't want to speak on behalf of my colleagues,
but my thought would be that before I would do anything to grandfather
this, I would want the contracting licensing board to take a look at
what your qualifications are --
MR. EAGLESTON: That would be fine.
CHAIRPERSON MATTHEWS: -- to make sure that you are
indeed qualified. In addition to that, if the problem is financial,
why wouldn't you ask for a waiver of the $1500 fee but still take the
test?
MR. EAGLESTON: That would be fine.
MR. CUYLER: MAdam Chairman, you may in advance of that
want us, us being the county attorney's office, to prepare a memo as
to what you can do under circumstances like this, because Ramiro, who
I don't think he needs to address you, but if you want him to he will,
has come to the conclusion in reviewing all of the ordinances that the
board can establish the grandfathering under the ordinance if it
wishes to provide an equal opportunity for anyone who meets certain
qualifications to be grandfathered, but on a case-by-case basis. It
does not look like the authority is there right now. If you want us
to prepare a memo for you to that effect, then you can decide what you
want to do for that policy.
CHAIRPERSON MATTHEWS: Have we ever done this before?
MR. CUYLER: Not at the board level that I recall.
COMMISSIONER MAC'KIE: My request is that I want to
review this further. Obviously we can't take action in a public
petition, but if there is a procedure available, then let's go through
and see if there are criteria that can be met and see if we can
approve it. And if there's not, then we can't. But let's go through
the procedure and find out what the criteria are.
CHAIRPERSON MATTHEWS: I agree. Commissioner Norris.
COMMISSIONER NORRIS: Who has paid the $1500 fee? Is
that a state function?
MR. CUYLER: That is paid, I believe, to the county for
the administering of the test. It may in part be paid to the test
giver as well.
MR. BARTOE: Excuse me. Tom Bartoe, licensing
compliance officer. That is the approximate cost to take the state
test. However, Collier County now offers the test through Block and
Associates. I would guess the approximate cost through Block and
Associates to be somewhere around $100.
COMMISSIONER NORRIS: That is all?
CHAIRPERSON MATTHEWS: That is all?
MR. BARTOE: Yes.
MR. EAGLESTON: Well, at our workshop, the last
workshop, two of the contractors that have taken the test said that it
cost them $1500 to pass that test.
COMMISSIONER NORRIS: Yes, but I think we have some
later information. Why don't you work with Mr. Eagleston and tell him
the up-to-the-minute facts about this. It doesn't appear that he has
the same information that you have.
MR. BARTOE: Yes, sir. We will work with him.
CHAIRPERSON MATTHEWS: I think that sounds like an
equitable --
COMMISSIONER MAC'KIE: I just have to make a tiny
comment on -- both of those public petitions seem to me to be things
that -- I hope our staff is accessible enough that they could have
contacted them, and the county attorney's staff would have done what
we just directed them to do, and the compliance officers would have
had them do what we just asked them to do.
MR. EAGLESTON: The staff took the position at the last
workshop that anybody that wanted to get their license grandfathered
would have to go on their own to do this. They did not support us,
and they were not against us.
CHAIRPERSON MATTHEWS: We are not talking about
grandfathering at this point. We are talking about what Mr. Bartoe
represents as a $100 fee to take the test, which is certainly in any
endeavor for a professional licensed person is not a hardship.
MR. MANALICH: Good morning, Commissioners. For the
record Ramiro MAnalich, assistant county attorney. I just feel this
needs just a little bit extra background here. This matter came to
you previously, as Mr. Hancock recalled, on an amendment to the
ordinance to grandfather nonelectrical sign contractors. At that time
the board voted 3-2 against that amendment. I think Commissioner
Hancock was one who mentioned, however, to please keep working on this
and see if we can come back to you. We have had meetings -- staff,
county attorney's office -- we've had meetings with both segments of
the industry, individually and also together in a workshop since that
amendment was presented to you. I'm happy to report that progress was
made insofar as one of the basic issues which was whether
nonelectrical sign contractors could erect structural signs. We did
achieve compromise on that, and there is going to be an amendment
coming to you to that effect that both the electrical and
nonelectrical can do structural signs.
The issue that remains, and I think what is the problem
for Mr. Eagleston to visit you here today, is that we were not able to
achieve agreement between the two segments of the industry as to
whether nonelectric sign contractors could install signs with electric
components. That remains the issue that is still there.
COMMISSIONER MAC'KIE: But to become an electrical sign
contractor, it requires passing a test that I am sure requires
expertise, but the cost of it is $100. Have I made the circle
complete?
MR. MANALICH: My understanding is that at the state
level, hen this test was originally available at the state level, the
cost was $1500. Apparently since then, according to Mr. Bartoe, the
county has made it available through Block and Associates at
approximately over $100.
COMMISSIONER MAC'KIE: That makes it a solvable
problem.
CHAIRPERSON MATTHEWS: It sounds probable.
COMMISSIONER HANCOCK: I'm sure, Mr. Eagleston, that
staff will work with you in securing the location of that $100 test.
If there is a problem with that, you can take it to staff.
CHAIRPERSON MATTHEWS: Okay.
MR. EAGLESTON: Okay.
Item #SA1
STAFF AUTHORIZED TO DRAFT AND ADVERTISE AN AMENDMENT TO ORDINANCE NO.
95-20, THE COLLIER COUNTY STRUCTURAL/BUILDING AND HURRICANE CODE
ORDINANCE - APPROVED
CHAIRPERSON MATTHEWS: Thank you. As we move onto the
regular agenda, the county manager's report, item 8(A)(1), a
recommendation that the Board of County Commissioners authorize staff
to draft and advertise an amendment to Ordinance 95-20. Mr. Dotrill.
MR. PERICO: Ed Perico, chief building inspector for
the county. What we are proposing is that the commission take a look
at granting an amendment on Ordinance 95-20. The changes are minimal
and are based on clarification and procedures in some of the graphics.
There is no impact on the industry at all with this ordinance, just
some of the terminology had to be cleared up. That is what we are
asking for.
CHAIRPERSON MATTHEWS: Commissioner Constantine.
COMMISSIONER CONSTANTINE: All you are asking for today
is authorization to advertise it, to draft and advertise it. We are
not actually discussing that item today? MR. PERICO: Yes, sir.
COMMISSIONER NORRIS: Motion to approve.
COMMISSIONER CONSTANTINE: I'll second the motion.
CHAIRPERSON MATTHEWS: Commissioner Hancock. We have a
motion and a second to approve the scheduling and drafting of an
amendment to Ordinance 95-20.
All those in favor please say aye.
Opposed?
Motion passes 5 to 0. Thank you, Mr. Perico.
COMMISSIONER MAC'KIE: I'm sorry. But one more time --
we couldn't have done that without the board voting? We have to vote
to decide to hear an amendment?
CHAIRPERSON MATTHEWS: Is this something that could
have been on the consent agenda?
MR. DORRILL: It could have been on the consent agenda,
yes.
COMMISSIONER MAC'KIE: All that vacation time.
MR. DORRILL: This time last week I was in Jackson
Hole, Wyoming. I wasn't worried about things like that.
CHAIRPERSON MATTHEWS: And future items like this, we
may be expecting to see them on the consent agenda?
MR. DORRILL: We will typically not amend or prepare a
new ordinance unless the board has instructed us to because of the
fact that it requires an advertised public hearing. We need to make
sure that you have some policy interest before we go to the drafting
stage. Yes, this could have been on the consent agenda.
MR. CUYLER: Excuse me. That may have come out of my
office, because that's what we understand your procedures are so the
staff isn't dropping amendments and ordinances on us, and we're
advertising and coming to you, and you say what the heck is this.
COMMISSIONER HANCOCK: I think that makes sense.
MR. CUYLER: But if you want to try to draw a line of
demarcation for amendments to existing ordinances or something, we
will try to do that if you want.
COMMISSIONER MAC'KIE: It seems like a waste of time to
me.
Item #SB1
ROAD IMPACT FEE CREDIT AGREEMENT WITH THE DEVELOPERS OF HUNTINGTON PUD
IN ACCORDANCE WITH ORDINANCE 92-22, AS AMENDED, AND CONSISTENT WITH
PRIOR BOARD ACTION - APPROVED
CHAIRPERSON MATTHEWS: Thank you. Next item on the
agenda is 8(B)(1), a recommendation to approve road impact fee credit
agreement in accordance with Ordinance 92-22. Mr. Archibald.
MR. ARCHIBALD: Good morning, Board Members. For the
record George Archibald, the transportation services administrator.
Item 8(B)(1) is a road impact fee agreement that pertains to the
four-lane construction of a segment of Oakes Boulevard extension. The
roadway that was built, actually designed, permitted, and built by the
developer, intersects with Immokalee Road at Oakes Boulevard. It
extends north and makes a vital connection between Immokalee Road and
the existing roadway that has previously been built which will extend
on up north into both Quail Creek West and on into Bonita Beach Road.
The segment that the agreement pertains to this morning
is that segment, again, that is a requirement of the Huntington PUD.
Again, that project was located in such a parcel that we had to, from
a county perspective, to maintain the alignment of Oakes Boulevard
extension. It required the developer to build the roadway to, in
fact, interconnect with the existing roadway that has been built. Of
course, I have forgotten the name of the older roadway, but it's
Northbrook Drive is what I am trying to recall. But this proposed
roadway, which we're calling Oakes Boulevard extension, will intersect
with Northbrook Drive which in turn will become Oakes Boulevard
extension in the future. That roadway alignment and extension is,
again, driven by the county's comprehensive plan. This is the last
segment of right-of-way that is necessary, and this will assure that
not only will the roadway be available, but the only missing link will
be the construction of that segment within the right-of-way that
already has been provided to the county and located between 1-75 and
Quail Creek West.
I've gone ahead under separate cover and provided
everyone with a financial review of the numbers that went into the
agreement, and, again, it is just strictly a matter of providing that
for the record. But in some returns the value of the improvements,
not counting the design and permitting, is $526,607. The fees that
will ultimately develop from the Huntington PUD, depending upon the
type unit, would range between approximately $400,000 and $549,900.
So, accordingly, since there is some equity between the value received
and the impact fees to be paid, this was prepared as a credit
agreement, and the agreement that is part of the agenda item
specifies, in fact, the controls on the density, the controls that
relate to the Huntington PUD, and, in fact, equates those two --
equates the value received by the county in accordance with Ordinance
92-22. The impact fees would be paid by the developer in the future
if that project builds out.
Accordingly, staff has gone ahead and finalized the
agreement. The attorney's office has reviewed and approved it. It
has been executed by the trustee for the Huntington PUD, and the staff
is recommending that it be approved by the board and the chairman be
authorized to execute it. Again, one of the important elements we
feel in this particular agreement is that it is a credit agreement.
There is no rebate provision or payback provision. So, again,
depending on how fast the project builds out in the future will depend
upon on how quickly the landowner takes advantage of the impact fee
credits.
CHAIRPERSON MATTHEWS: If they fail to put up enough
units to use all of this, the credit is just lost?
MR. ARCHIBALD: Yes, correct. It only pertains to the
Huntington PUD and that parcel only.
CHAIRPERSON MATTHEWS: Commissioner Hancock.
COHMISSIONER HANCOCK: Is this the section that was
originally looked at that met with Oakes Boulevard, and the north side
of Immokalee went north and made an 90 degree bend to the west and
then Ts into --
MR. ARCHIBALD: Yes.
COHMISSIONER HANCOCK: Okay.
MR. ARCHIBALD: On the very last page of the handout,
it gives you -- there is an outline for the four lanes that were
built. And, again, the analysis both from the standpoint of the
construction value and also the land value is outlined to include
copies of the appropriate appraisals.
CHAIRPERSON MATTHEWS: Any questions?
I have one. Mr. Archibald, does this $526,000 include
the resurfacing and re-striping of Immokalee Road? MR. ARCHIBALD: No, it does not.
CHAIRPERSON MATTHEWS: It was recently done, and it
looks very nice.
MR. ARCHIBALD: No, it does not. There is a credit in
here for some of the intersection work, the bridge, and all of that is
being paid for by the developer of what we consider site specific
improvements. He, in fact, reduced his intersection improvements from
the estimate recently approved by the board.
CHAIRPERSON MATTHEWS: Is there a motion?
COHMISSIONER HANCOCK: Motion to approve.
COMMISSIONER MAC'KIE: Second.
COMMISSIONER HANCOCK: We have a motion and a second to
approve the road impact fee credit agreement in accordance with
Ordinance 92-22.
All those in favor please say aye.
Opposed?
There being none, motion passes 5 to 0.
Item #882
BUDGET AMENDHENT TO REALLOCATE FUNDING FOR THE IHMOKALEE FOUR-LANING
PROJECT - APPROVED
Next item on agenda is an add-on item 8(B)(2) dealing
with Immokalee four-laning.
MR. ARCHIBALD: Board Members, again, add-on agenda
8(B)(2) is simply a budget amendment to reallocate monies and to, in
fact, make a payment of what was previously approved as pay estimate
number 25 to the contractor Westwind Construction for the work
completed under the four-laning of Immokalee Road between U.S. 41 and
1-75. The amount that we're allocating under this particular budget
amendment is approximately $199,500. There will be some additional
payments to be made. There will be additional budget amendments.
Staff was attempting to try and make this payment in regards to the
work that has been completed and as a result we had asked for your
indulgence as an add-on agenda item.
CHAIRPERSON MATTHEWS: Questions? There being none, is
there a motion?
COMHISSIONER MAC'KIE: Move approval.
COMHISSIONER HANCOCK: Second.
CHAIRPERSON MATTHEWS: We have a motion and a second to
approve the budget amendment to reallocate funding on the Immokalee
four-laning project.
All those in favor please say aye.
Opposed?
Motion passes 5 to 0.
MR. ARCHIBALD: Thank you.
CHAIRPERSON MATTHEWS: Thank you, Mr. Archibald.
MR. DORRILL: Mr Archibald, if you don't mind I would
like for you to stay a little later into the meeting when we get to
the 1-75 crossover issue. Thank you.
Item #SD1
DEPARTMENT OF ENVIRONMENTAL PROTECTION CONSENT ORDER - APPROVED
CHAIRPERSON MATTHEWS: Next item on the agenda is item
8(D)(1), approval of a Department of Environmental Protection consent
order. Mr. McNees.
MR. MCNEES: Good morning, Commissioners. Mike McNees
of your utilities division. I'm here this morning with the next
chapter in the ongoing saga of our battle with treated waste water
effluent. This is something we have discussed repeatedly over the
last couple of years. So I am here today about something I think I
told you about, I think, a couple of times in the last several months.
Due to some overflows both in our south waste water plant that took
place in last October and November on two separate days and the series
of overflows during what was a very rainy peak season this year in
February and January, the Department of Environmental Protection has
recommended some consent action. Their indication is that we have
been out of compliance with their regulations due to those -- what
were overflows into the perimeter ditches of that plant.
The primary or the meat of the consent order is that we
are committing to engage the services of a registered, professional
engineer, and that would be either an in-house professional engineer
or consulting engineering firm to evaluate and design whatever capital
improvements or plant process changes would be necessary to guarantee
long-term effluent disposal effectiveness. The good news is most of
that we have already done. We are already designing the changes at
the south plant. We are already doing the deep well that you agreed
to. We have already done effluent pumping improvements on the north
plant. Most of this is already underway. What the consumer does is
establish some reporting requirements and some formal process by which
we were ordered by the DEP are completion milestones and all those
kinds of things. So they are keeping track a little more closely than
they normally would if that doesn't improve or are actually taking
place.
The other piece of the consent order is normally they
would impose a civil penalty of some sort. What they have agreed to
in this case is to substitute for a civil penalty an in-kind service.
We have negotiated with them to allow us to take credit for the work
that we are doing and trying to do today. We've been down there the
last couple of weeks to make the residential corrections to the Lee
Cypress utility coop that you directed us to do as part of that
housing urban improvements grant project that is going on down there.
The work that we are already committed to they're going to give us
credit for it. There won't be further penalty or further fine for
that. So what we are asking for today is your approval of the consent
agreement. The DEP proposed this with the utility administrator as
the signatory of the consent agreement, so I would ask from you today
is that you authorize me on your behalf to execute this consent
agreement. I would be happy to answer any questions. CHAIRPERSON MATTHEWS: Questions?
There is no other downside to this consent order?
MR. ARCHIBALD: None that I can think of other than our
commitment to report and actually make those capital improvements
which we would be doing anyway.
CHAIRPERSON MATTHEWS: So everything we are agreeing to
do, we have already agreed to do? MR. ARCHIBALD: Yes, ma'am.
CHAIRPERSON MATTHEWS: This board has already agreed
to.
MR. MCNEES: There may be one or two design issues or
capital issues that we have not yet brought to you yet to come out of
this, but we would be doing them anyway either with or without the
consent order.
COMMISSIONER NORRIS: Move to approve.
COMMISSIONER HANCOCK: Second.
CHAIRPERSON MATTHEWS: Motion and a second to approve
and to give Mr. McNees, I presume --
MR. MCNEES: Yes.
CHAIRPERSON MATTHEWS: -- the motion maker has
authority to sign the agreement. MR. MCNEES: Yes.
COMMISSIONER MAC'KIE: Second.
CHAIRPERSON MATTHEWS: With no further questions, I'll
call it.
All those in favor please say aye.
Opposed?
There being none, motion passes 5 to 0. Thank you.
Item #BE1
BCC AUTHORIZED AN ASSISTANT TO THE COUNTY MANAGER POSITION TO BE ADDED
TO THE 1995 BUDGET
Next item on the agenda under administrative services,
item 8(E)(1), this item was moved from the consent agenda and is an
add-on position.
MR. OCHS: Good morning, Commissioners. Welcome back.
For the record Leo Ochs, your administrative services administrator.
As the board will recall, on June 20th the manager presented a brief
outline of several initiativess that have been taken recently to
improve the agency's employees' relations efforts. One of those
actions involved the establishment of a position in the county
manager's office that would act as an employee ombudsman to hear
employee concerns or grievances and investigate those and render
advice to the county manager and human resources director. In keeping
with our past administrative practice, staff is bringing this item to
the board for approval seeking their approval to add this position. In
the fiscal year '95 budget, it would be funded out of the human
resources operating budget. I would be happy to answer any questions.
MR. DORRILL: We have a speaker. This was pulled,
because we had a request through the commission's office.
CHAIRPERSON MATTHEWS: Commissioner Constantine, you
had a question.
COHMISSIONER CONSTANTINE: I appreciate the fact that
we are trying to pay more attention to our human resource problems as
they occur. I do have a concern, however, in the manner in which we
are doing this. A few years back Mr. Dotrill had two assistants to
the manager and an assistant county manager and a number of support
people with that. That trimmed down, both, through attrition and the
elimination of jobs at one point to Mr. Dotrill, an assistant to the
county manager, and a couple of support people, and it seems we have
in the past two years built that back up again. And with the addition
of this position are back up to the maximum level, as far as I know
anyway, while you have been at that office.
My concern is there are certain things that the
assistant to the county manager has done over the last couple of years
that I think took a great deal of time that will not be carrying the
same burden this year. For example, the cable act, I know that
Jennifer spent a great deal of time trying to decipher what all that
meant as it came out of Washington and how it applied here, how it
applied with our local cable companies and so on. The time she spent
doing that in the past I'm assuming will be diminished somewhat now,
and I'm wondering if the single position wouldn't be able to fill much
of that vacant time dealing with the human resource issues and still
achieve the same end without adding in a $54000-a-year job.
MR. DORRILL: I'll answer the first part of your
question first. I think there will always be a need to have some type
of administrative assistant position in the county manager's office.
And it is really -- the organization and staffing of the county
manager's office is essentially the same today as it was 16 years ago
when I first came here. There has been no growth in the number of
positions. You are correct that previously there were two
administrative assistants to the manager position. We did eliminate
one of those, I'll say two years ago, as part of our reduction in
mid-level management positions.
As it pertains to the cable franchise administration,
which is also an element of this job, we are in the throes of having
to renegotiate all of our cable franchise agreements, and I believe
that process begins next year. And so my initial impression is that
the cable side of that position is going to get worse or become more
involved as we get into renegotiation or some type of competitive
process for cable franchise issues countywide.
We need to appoint from the human resource department.
And maybe this issue is one of semantics. I felt that it was
important to create an additional human resource position but send a
clear message to the employees that that individual reported only and
directly to the county manager outside of the any normal division
structure or division administrator for employees that had any type of
concern or morale-related issue. As you know, I have appointed
Captain Ed Day to that particular position. I had the ability to do
that in the interim. But this is intended to be a housekeeping-type
measure so that your staffing chart adequately reflects the number of
positions that are in the budget. That is a short answer. I wasn't
anticipating this being pulled today, but if you have any questions,
I'll answer them. You do have one speaker.
CHAIRPERSON MATTHEWS: Thank you. Commissioner
Hancock.
COHMISSIONER HANCOCK: Mr. Dorrill, you've seen this
position fall as an assistant-to-the-county-manager type salary range.
Have we looked at this type of position in other counties or other
areas of similar size to find out what salary range they fall into?
I'm just looking for some comparative -- I have to agree that this is
a $50,000 a year position, and I know the range is 36 to 54. But
let's assume 45 or $50,000, that it merits some note here as to
comparative ability to what is being done elsewhere.
MR. DORRILL: Our range is consistent. The answer to
the second part of the question, did I compare this position to
others, no. I would be happy to do that. I don't know how many
agencies have a direct-type access to the chief executive, but I would
be more than happy to do that and share that with you if you would
like to.
COHMISSIONER HANCOCK: The direction as I understood
from this board, and it wasn't an official direction, it more or less
came out of workshops and so forth, was for a person to handle the
human resources and report directly to you. That doesn't necessarily
mean it has to be an assistant to the county manager salary structure.
I am just -- what I am saying is I am trying to look at what the job
description is and the salary and see if the two are commensurate.
MR. DORRILL: I understand your question, and the
answer is I did not compare that. It is consistent internally with
other positions of similar responsibility. But if you are interested
in knowing what other communities -- then we would be happy to provide
that.
COHMISSIONER HANCOCK: I just want to make certain that
the job description and the salary are commensurate. And who they
report to isn't necessarily the single factor that determines that
salary.
MR. DORRILL: If it pertains to salary, you are
correct. I thought it was important for the entire agency to have the
employees recognize that this person is somewhat independent of either
the human resource director or Mr. Ochs' position and that this person
only reports to me.
COMMISSIONER HANCOCK: I agree. And my second question
is do you plan -- Mr. Day, who I have a tremendous amount of
confidence in, has been an interim appointment. Do you plan on open
competition for the position, or do you plan on just appointing Mr.
Day?
MR. DORRILL: Mr. Day is appointed at the moment unless
you were to deny this type of request for next year's funding, and
then I would have to come back with some other alternatives.
CHAIRPERSON MATTHEWS: Any other questions? We have a
speaker?
MR. DORRILL: Mr. Tribble. And is there a Mr. Wilson
here?
MR. TRIBBLE: He isn't here.
Good morning. My name is Henry Tribble. First I will
read Mr. Wilson's letter. I wasn't certain whether or not he would be
here. What I am reading from is a second draft of a letter that never
got to final because his house and his computers were hit by lightning
yesterday. He told me to wait for the fax and to call him if I didn't
get it and then sometime after that he called from his car phone and
indicated that his computer had gone.
COMMISSIONER MAC'KIE: Lost it all.
MR. TRIBBLE: Right. But I do have a draft that is
pretty much what you will get hopefully in a few days. Mr. Wilson was
asked by our board to take the primary responsibility for addressing
the issue of the ombudsman. His letter is basically to the Board of
County Commissioners.
Dear Friends, today we are writing about our belief
expressed at the May luncheon that an ombudsman should be appointed to
receive complaints from county employees of illegal discrimination who
should report directly to the board and be provided direct
professional staff liaison between the Board of County Commissioners
and the community relative to intergroup relations and issues that
pertain to the operations of Collier County government.
Since that time the county manager has announced the
appointment of an assistant to him for the purpose of receiving
complaints from county employees whose mandate is broader than
discrimination. The new appointee -- last Friday we met with Caption
Ed Day, the person named by the county manager to serve as his new
assistant -- actually not a new position, rather filling Jennifer
Edwards old position. We're not certain of that. We are unanimous in
feeling that he brings great personal sensitivity and extraordinary
credentials to this position, but that is not enough to meet the
criteria of independence that a majority of the Board of County
Commissioners and Black Affairs Advisory Board members agree to be
appropriate at our May luncheon as evidenced by the minutes of that
meeting.
The next area is authority and accountability. At this
writing it is not clear whether Captain Day would have the authority
to go the Board of County Commissioners in situations where he and the
county manager are in substantial disagreement. Even if he gets the
authority from the county manager, he still works for the county
manager and that has an inevitable tendency to compromise the
independence of the incumbent in the position. We are confident that
Captain Day would not permit his conscience to be subordinated to the
county manager's interest. But the day will come when someone else is
in that job, and we are concerned.
What we want to see is accountability directly to the
Board of County Commissioners. What we are asking for basically is a
provision of a relief valve from the situation where the man at the
top clamps the lid upon the situation that needs relief. We
perceived, during our Hay luncheon, that several of you agreed on this
part. Yet I -- it says here see the minutes. At least we took from
that discussion you wanted a position which was strictly out of the
chain of command so to assure a fair and independent climate for
investigations and determinations. We suggest that accountablility to
you is the simplest and most effective solution to achieve that.
The next area is manpower commitment. Also we are
concerned that only 25 percent of Captain Day's time will go into this
new function. The rest will go into the functions that Jennifer
Edwards had when she was in the job. We understand that some of those
were developed elsewhere, but that will not relieve our concern that
not enough commitment of manpower will be made to do the job right.
The scope of the function. We realize a number of
details about the function are still to be worked out, but we
understand that initially it will be dealing with only complaints from
county employees. We feel that there is a substantial need for this
function, which we would optimistically refer to as the ombudsman
position for now, to be available to inquiries or concerns for the
minority communities at large regarding other matters of county policy
or plan action. For example, if the county is about to make decisions
on a real estate development which impacts on a minority neighborhood,
the ombudsman could be available to assemble data and report concerns
to the board. Similarly, concerns --
CHAIRPERSON MATTHEWS: Excuse me, Mr. Tribbel. Your
five minutes has expired. Can you wrap it?
MR. TRIBBLE: Well, I can go into my five minutes.
CHAIRPERSON MATTHEWS: No, no. We only allow one five
minutes.
MR. TRIBBLE: Okay. I'll wrap it up.
Similarly, concerns of the lack of county contracting
with minority contractors. Basically what we are saying is that we
feel that Captain Day can be a valuable asset to the county and to the
issues. However, this format and organizational structure does not
meet the independence of the ombudsman including the suggestion from
some of the commissioners that the enforcement code analogy of it and
independent body be involved in that operation.
CHAIRPERSON MATTHEWS: We understand you. Commissioner
Norris.
COHMISSIONER NORRIS: Ms. Chairman, while I think we
understand Mr. Tribble's point about going directly to the Board of
County Commissioners instead of through the county manager -- and this
may have been discussed and at the time it seemed like a good idea at
the Hay 5th meeting, the lunch meeting I believe the fact remains that
the Board of County Commissioners is not legally authorized to delve
into personnel matters. Therefore, while it may seem to be a good
idea to have some county employees reporting directly to the Board of
County Commissioners on personnel matters, it is not a legal matter --
not legally authorized.
CHAIRPERSON MATTHEWS: Any other questions or comments?
COHMISSIONER CONSTANTINE: Just one. Mr. Dorrill, Mr.
Tribbel raised the question if this was filling Ms. Edwards' spot, and
that is not the case; is it?
MR. DORRILL: No, sir. The position that is proposed
would be established and paid for through the human resource
department but as I indicated earlier, it would be independent and
that it would report and investigate those matters directly to me
outside of any other structure.
COMMISSIONER CONSTANTINE: And its primary purpose
would be to do that? So as far as his 25 percent question -- MR. DORRILL: That's incorrect.
COMMISSIONER CONSTANTINE: You can answer that
question. Okay.
MR. TRIBBLE: That was the information that Captain Day
gave to us in terms of what he presently saw and anticipated. Also in
terms of Commissioner Norris' comment, I'm not certain that this board
does not have the authority to create an ombudsman person.
COMMISSIONER NORRIS: You are certainly welcome to ask
Mr. Cuyler, and he will explain the separation to you. In the
meantime, I'll make a motion that we approve the request.
COMMISSIONER HANCOCK: I'll second the motion.
CHAIRPERSON MATTHEWS: We have a motion and a second to
approve the request for the new position. Is there further
discussion?
There being none, I'll call the question.
All those in favor please say aye.
Opposed?
There being none, motion passes 5 to 0.
The one thing I would like to say on the passing of
that motion is that I would expect that if the position created here,
whether Mr. Day is filling that -- or Captain Day is filling or some
other person in the future, if our employees run into difficulty, they
know where five of us are.
COMMISSIONER HANCOCK: That is the other point, Mr.
Tribbel, that may be somewhat encumbered. If we have a personnel
problem, we can ask Mr. Day directly in this format what his feelings
are as far -- so I don't think that resource is necessarily lost by
being under the county manager. Again, I agree with Commissioner
Norris.
MR. DORRILL: As a side point, I believe it may have
been a year ago now when Mr. Tribbel first broached this subject with
the board. The direction and the motion that we had at that time, I
believe, by Commissioner Saunders was to broaden the personnel
policies to give the county manager the ability also to retain an
independent hearing officer in certain instances and have that
individual prepare a report that would be submitted to the county
commission at the same time as the county manager. It gives the
county manager the opportunity to make final decisions involving
personnel matters, but the independent hearing officer's report would
also become public record and would be made available to the county
commission if they chose to have that. And those amendments to the
personnel rules and regulations were made, I believe, over a year ago.
COMMISSIONER MAC'KIE: So the procedure that you just
described is available?
MR. DORRILL: There is an available mechanism to have
the county manager retain an independent hearing officer, probably an
attorney-type individual, to prepare findings and facts and
conclusions of law, to submit an independent recommendation to the
county manager outside of the normal, quote, chain of command,
especially if the county manager has reason to believe or question the
action of management officials under him. And, Mr. Ochs, I'll ask you
to help me, but I believe we made those changes to the personnel rules
and regs. Last year.
MR. OCHS: That is correct. I think probably last
September I did my research.
MR. TRIBBLE: Had those procedures been distributed to
employees? Are they aware of them?
MR. DORRILL: Yes, they are. We have on an annual
basis -- we prepare an employee handbook and an update and
correspondence that goes -- I'll say on or about October 1st which is
the beginning of our fiscal year -- for any changes in the personnel
rules and regulations.
CHAIRPERSON MATTHEWS: Mr. Dotrill, I'm going to ask
you to continue whatever line of questioning you are going to have in
this matter with Mr. Ochs or Mr. Day. We have agreed to add the
position to our chart, and what we work out from there it sounds like
it is going to be done. I would ask you to continue your questioning
with the parties involved in it.
MR. TRIBBLE: At our May meeting, the Board, the County
Commissioners asked that the Black Affairs Advisory Board to get back
to you in writing on our thoughts. We have been working on that.
When this came up it sidetracked us. So are you saying that you no
longer want us to get back to you based on your saying to us at our
luncheon you wanted to hear from us because we have the pulse of the
community and --
CHAIRPERSON MATTHEWS: The Black Affairs Advisory Board
is an advisory board to the Board of County Commission. We are
interested very much in what your thoughts are, and we're interested
in knowing, whatever time period it takes, if the proposal that is
brought forward to handle these questions is not working. And as a
member of the Black Affairs Advisory Board, we would expect this board
to be taking the pulse of that.
MR. TRIBBLE: Okay. We will be getting back to you.
COMMISSIONER MAC'KIE: May I make just one comment on
that too, Mr. Tribbel, is that the way I see this is that it is a step
in the right direction, and it isn't unalterable. If we've got a
recommendation from your board and other employees and others in the
community, this could be a first step in the direction that you
described this morning.
MR. TRIBBLE: I hope you understood that was the tone
of the letter. I didn't get a chance to finish it. Because it is a
step in the right direction, although we have some concerns.
CHAIRPERSON MATTHEWS: It is agreed that it is a step
in the right direction. If it is a final step or not we wouldn't
know, because we haven't tread these waters before.
COMMISSIONER HANCOCK: Correct.
MR. TRIBBLE: Thank you.
CHAIRPERSON MATTHEWS: Thank you.
MR. DORRILL: Madam Chairman, before we begin the next
item, I was told that there were some officials from FDOT who are in
route for the 1-75 crossover. If those individuals are here, could
you identify yourself, please? If not, and you are about to take a
recess, we can call their Fort Myers' office and determine if they are
in route, because they are an important part of this for the next
item.
CHAIRPERSON MATTHEWS: Why don't we take a break until
20 minutes of.
(A short recess was taken at 10:22 a.m.)
Item #SF1
CONSIDERATION OF ACTION RE CLOSURE OF ALLIGATOR ALLEY CROSSROADS -
COUNTY ATTORNEY'S OFFICE TO DRAFT LETTER TO THE FEDERAL HIGHWAY
ADMINISTRATION VOICING SUPPORT OF MAINTAINING THE EXISTING CROSSOVER
AND TO BE BROUGHT BACK WITHIN 60 DAYS
CHAIRPERSON MATTHEWS: Reconvene the Board of County
Commissioners for July 18, 1995. Next on the agenda is the add-on
item for the alley crossovers.
MR. DORRILL: That individual has arrived.
CHAIRPERSON MATTHEWS: 75 -- and we have all parties --
MR. DORRILL: Yes, ma'am.
CHAIRPERSON MATTHEWS: -- currently here. So let's
move forward with that item which is 8(F)(1). Who do we have
presenting that, Mr. Dotrill?
MR. DORRILL: I will let Mr. Archibald introduce the
item. The item was -- my understanding, at the request of the Golden
Gate Fire Control and Rescue District, and the individual from FDOT is
here also.
CHAIRPERSON MATTHEWS: Mr. Archibald.
MR. ARCHIBALD: Good morning, Board Members. I believe
there is a number of speakers on the subject agenda item, but here
from the Florida Department of Transportation is Ms. Debby Tower. And
she wanted to make a short presentation to give the board not only an
update of what the DOT has received in the way of directives from
federal highways, but also outline to the board some of the other
activities that will be occurring that may mitigate some of the
concerns. So I would like to introduce Debby Tower and let her
provide a short overview. I know there is a number of other parties
that would like to speak and, in turn, the staff can provide some
alternatives.
CHAIRPERSON MATTHEWS: Thank you. Ms. Tower.
MS. TOWER: Thank you, first, very much for showing us
consideration in waiting for us to arrive. We appreciate that very
much. Host of you I am sure are familiar with the alley crossover
discussion. Briefly we have -- to date we have removed some
crossovers between the toll plaza and State Road 29 at the direction
of federal highway. We are directed further to remove crossovers from
State Road 29 out to the Broward County line. I have some new
information for you this morning which I think will be helpful for
everyone and that is that within a couple of weeks we will be going
out to work on the alley crossovers, the ones that will remain. We
need to make modifications to those, some widening and adjusting the
sloping. Then the crossovers that need to be removed -- however, we
will delay those removals until construction of rest areas and
recreational access areas nearby have been completed. In other words,
what I am saying is that there are probably -- and I'll need to count
them -- but there are let's say, one, two, three, four, five -- five
crossovers still to be removed, and they will be removed, but not
until the recreational access area or the rest area, that is -- the
proximity is right near those points -- that construction has to be
concluded. When we do remove those crossovers, we'll be tearing out
the asphalt milling. We'll be spreading out the lamp lime rock in
such a fashion that it doesn't impede the water flow, but nonetheless
rests there on the bottom. That is our plan then.
I wanted to bring that to the folks' attention because
this does somewhat change our approach which originally was to go out
and remove these over the next couple of months. This proposal has met
with concurrence from federal highway, our approach to the removal,
both in time frame and in design. So I wanted to bring that to your
attention.
One other thing I do need to mention, I think it is
important, we clearly understand the need for the crossovers for
emergency services. That is very clear. There is a related safety
interest, however, that the department and federal highway must pay
good attention to is as equally important and that is the potential
for accidents that is created by crossovers -- unauthorized use of
crossovers.
Interstate 75 is a limited-access facility. For that
reason, cars may travel 65 miles an hour. They do travel faster.
They will slow down at an interchange, because they anticipate cars
pulling on and off. The last thing a driver expects on an interstate
is to stumble upon a car moving 5 or 10 miles an hour just having
pulled into traffic. Crossovers invite the opportunity for motorists
to travel very slowly across the interstate. They don't provide for
acceleration or deceleration lanes so that cars illegally using
crossovers would be plunging into traffic at a high rate of speed.
That is a very valid, legitimate safety concern, one of federal
highways' and one of the department's. That is something that we have
to balance when we look at the placement and the number of crossovers.
I just wanted to remind you of that and bring that to
your attention, and I would be happy to answer any questions or after
other folks have spoken.
CHAIRPERSON MATTHEWS: Any questions? Commissioner
Hancock.
COMMISSIONER HANCOCK: First of all, it was the FDOT
that installed it and on behalf of our citizens I want to thank you.
It was some tremendous foresight. Unfortunately it didn't work out
the way we all hoped it would. Have you looked at it as part of a, I
guess, mitigative measure putting minimum fine signs at the official
crossovers, or have we done that? All the ones I have ever seen say,
"official use only." If signs are put up stating a minimum fine of
significant value, it may deter people further from using them,
thereby allowing more crossovers. Has that been broached at all?
MS. TOWER: We do intend to sign the official
crossovers with markings that say, "for official use only" and we
have, in fact, corresponded with highway patrol and local sheriff's
departments to ask for their support in enforcing those situations.
So, yes, that is very much a part of what we will do as we sign those
and modify them.
Another item I will mention just briefly too, the rest
areas construction is expected to conclude first quarter of this next
calendar year. So, you know, that is easily six months away. The
recreational access areas are scheduled to be let to construction for
about a year and a half. So we're talking sometime yet that the
crossovers that need to be removed, nonetheless, will be remaining on
the alley for a short period of time while this other construction
gets underway and finishes up. We'll also monitor the situation.
We'll track it. We'll see what is working, what isn't, what looks
dangerous, what's proven to be dangerous. You know, we're truly going
to monitor those situations over the next months as well. CHAIRPERSON MATTHEWS: Other questions?
I have one and that is that you removed the crossovers
between the Naples toll plaza and 29?
MS. TOWER: We've -- we have removed all but one, and
the one that we did not remove is to remain. One that was removed is
also scheduled to remain, so we will rebuild that one.
CHAIRPERSON MATTHEWS: You put it in. You spent the
money to take it out, and now you're going to spend the money to put
it back?
MS. TOWER: That is correct. The costs involved are
not extraordinarily high. I certainly don't want to minimize the cost
by any means. We're talking -- the entire project to build the
crossovers in two counties, Collier and Lee County was about $111,000.
The cost to remove all the crossovers in both counties that were
identified would have come to about $33,000. We're estimating that
that $33,000 to remove will also cover the cost to rebuild and modify
what needs to exist still out there. It has been approved by federal
highway.
CHAIRPERSON MATTHEWS: The crossover between the Naples
tollbooth and 29 that you have to rebuild, what is your time frame on
doing that?
MS. TOWER: At this point, we're anticipating that
we'll be out working within the next several weeks. I don't know
truly how much time it will take to make those modifications and to
rebuild this next one. I don't think it would be months and months.
It may certainly be a month or two. That is a guess in all honesty. I
will be happy to let you know once we get a real firm handle on that.
CHAIRPERSON MATTHEWS: Okay. Thank you. Any other
questions?
Mr. Dotrill, we have some other speakers?
MR. DORRILL: Yes, we do. I know that -- I recognize
Chief Peterson from the Golden Gate Fire and Rescue District. He may
have a fire commissioner, but they had asked for and provided some
correspondence to the board, and I'll ask him to come up. Chief, good morning.
CHIEF PETERSON: Good morning, Commissioners.
CHAIRPERSON MATTHEWS: Good morning, Chief.
CHIEF PETERSON: For the record I'm Don Peterson, fire
chief of the Golden Gate Control and Rescue District. I am here this
morning representing our commissioners who were unable to make it this
morning due to conflicts. Approximately a little over a month ago we
were all made aware of the removal of these crossovers by the Naples
Daily News, unfortunately. The process of the crossovers -- I'll try
to do a little bit of history and not bog it down too much. Primarily
this morning what we are asking the board to do is to assist in
stopping the removal of the crossovers and whatever can be done to
assist in getting the crossovers put back in. Over two and half years
ago our fire district, along with county staff of Ochopee fire
district, EHS, FHP, and county sheriff's department, state agencies,
DOF, all met with DOT -- FDOT to work out these crossovers.
The original plan for the Alley did not include any
crossovers in Collier County. And I'll address strictly Collier
County because that is where we are affected by. Broward County has 5
crossovers within a 20-mile stretch. They are completely paved,
completely sodded, very nice looking. Those are to remain in. Collier
County, however, does not -- is not going to have such a crossover.
We don't need anything fancy. We need something that does support a
vehicle of substantial weight to it. We're not asking for any fancy
signage.
The law enforcement agencies, FHP and SO have committed
in the past to enforcing the improper use of those crossovers. I am
sure as you travel throughout the state and through other states
you'll see that crossovers are common in the interstate system. So
this is nothing new to Collier County. We supplied over the last two
and a half years information to DOT -- FDOT, whoever asked for it,
accident calls, the type of calls, where they were located, and
through that there was a determination made where those crossovers
would best be installed. We did not view the tollbooth as an adequate
crossover. Unless you are within a few hundred feet of the tollbooth,
you would have to go up against traffic to use a tollbooth as a
crossover; same way with 29. In the case of our department, we have
to go 20 miles to get to the intersection of 29 crossover to come
back, and the same way with EMS, FHP, the SO, whoever that may be.
There is one that is existing and remaining at Everglades Boulevard.
Apparently that has not been removed. But it should also be noted
that that is an 8-mile one-way trip. That is a 16-mile round trip, or
if you are at the 1- or 2-mile marker, that is more than 8 miles to
get over to you.
There is a lot of conversation that you can drop
somebody off, let them cross the canal that is in the middle. And
that, by the way, has been told to us that the middle of the Alley was
constructed intentionally as a drainage area. Other parts of the
intersection -- which Lee County or Charlotte County, wherever you go
-- not all areas were intended to be a drainage area. However,
that's what makes Alligator Alley unique to us in our situation.
There are no natural crossovers that can be used because you will find
in some areas natural crossovers are used.
We've -- again, agreements and understandings were made
as far as we knew. We have supplied whatever we can as of this
morning. We were in conversation with FDOT as to what was going to be
resolved and coming down at the courthouse, what appears to be
appearing again as happened in the past. A little over three weeks
ago I met with the folks from FDOT. They had agreed to stop at that
time with -- four crossovers in the area affected by us have been
removed already. And it was the understanding when we left three
weeks ago we were going to be able to resolve this issue. This
morning and last night and the last three weeks, my assistant chief
has been on the phone -- a lot of contact with people in what is
coming down to this point is we're still getting different versions of
what is occurring.
Now, this morning's version, from an emergency services
standpoint, what we are looking at, we have asked for why the
crossovers were removed in the first place in writing which has been
refused. Our attorney has asked for that. We have not received
anything from them. We have asked them and have not received what
standard was used. Our attorneys have filed for freedom of
information act -- information and according to what we've received up
to this point, an intersection -- if you have no crossover or no
intersection in a 5-plus-mile stretch, it is acceptable to put them in
an area of 3-to-5-mile placement crossovers.
Again, Broward County has 5 in a 20-mile stretch. They
were in place. Nobody has committed to us in writing why the removal.
Let's improve what is there. If it needs to be brought up to a
standard, we've pushed -- let's bring it up to a standard, whatever it
takes, but leave what's in place. They were not arbitrarily picked
out on a map where they were originally placed. We had sound reason
for doing that. And, again, we have asked why that is not working.
They are dropping back now saying we're going to give four total.
But, again, I would now look at 29 and the tollbooth as practical,
because you've got a lot of -- you've got 20-plus miles in between.
So what our board of commissioners have looked at twice now -- they
met last week. It's obvious this has gone beyond the fire district
issue. It affects everybody passing through the county. It affects
state agencies as well as county agencies and what the fire commission
was asking for was the assistance of the county.
We've written letters to the congress, senators,
governor, everybody that we can write to, but at the same time things
are still proceeding, and the emergency service end of it is being
overlooked. I share that with you. I've got staff here who can
supply answers for you; whatever you might need. We are here this
morning asking for assistance to come on board. Our attorneys have
indicated that the information they have obtained up to this point, we
will share with you freely. They've indicated to our board that we're
looking at a possible $20,000-plus to get this issue resolved whether
that is getting it stopped or sitting down with them and resolving
that, getting them reinstailed. But, obviously, our fire district
isn't in a position to take on that kind of an expense. CHAIRPERSON MATTHEWS: Questions?
COMHISSIONER CONSTANTINE: Chief Peterson, I know you
have provided this information to DOT, but how many calls does the
Golden Gate Fire District and/or the East Naples or Corkscrew -- how
many calls do we respond to on the Alley annually approximately?
CHIEF PETERSON: Approximately 150.
COMHISSIONER CONSTANTINE: So this is something that
we're dealing with virtually every day or three times a week anyway?
CHIEF PETERSON: Correct. Now that also includes false
calls. We get calls out and then there is nobody out there. So
you're looking at sending a truck to 29. We write them off if we get
a call for a vehicle accident at the 3-mile marker. We write them off
for an hour for them to get to 29 and come back around.
CHAIRPERSON MATTHEWS: Commissioner Hancock.
COMHISSIONER HANCOCK: Question for Mr. Cuyler. It's
ironic -- I just heard this morning on the radio, one of those point
of law things for we curbside lawyers to listen to, and it indicated
that where an injury situation can be shown, a local municipality can,
in fact, restrict traffic on state roads. The reason I bring that up
is I'm looking at a 14-mile separation between crossovers, and I'm
thinking if we have a situation that is potentially injurious to our
citizens, that can be remedied quite easily. Can we, in fact,
intervene in some way and force federal highway to reconsider this?
MR. CUYLER: I missed that report. I'm not aware of
local government being able to take that kind of action on federal
highways.
COMMISSIONER HANCOCK: It was on the radio so it had to
be true.
MR. CUYLER: It had to be true. I'll have to research
that and find out where they got that.
COMMISSIONER HANCOCK: It was an Ohio case, I believe.
That will narrow it down for you.
MR. CUYLER: Obviously, if the board reaches the
conclusion that it is concerned about safety matters and whatever is
being proposed doesn't meet the needs as identified by the board,
obviously, there are mechanisms, not the least of which obviously is
to go into federal court and try and see if we can't get something
done. But you need to make that analysis of whether whatever is being
proposed meets your needs or not. We would, as part of that, look at
anything else we could do and what you mentioned would be one of those
things if it exists.
COHMISSIONER HANCOCK: Thank you.
CHAIRPERSON MATTHEWS: Any other questions?
Any other speakers?
MR. DORRILL: Mr. Perkins.
MR. PERKINS: Good morning, Commissioners. A1 Perkins,
Belle Heade Group and Citizens for Constitutional Property Rights. We
take the position that we're out here to try to save lives, not kill
people. The whole point that I have been bringing up for the last two
years is the evacuation. And I have to address the fact that we will
have a hurricane. If the hurricane hits the Hiami -- Fort Lauderdale
area, the people will be leaving by 95 headed going north and 75
headed west. We will have problems. Now, those problems with the
traffic when they intersect at the Golden Gate interchange, we are
going to have a lot of people, and according to the hurricane
evacuation plans, the traffic will be backed up to Punta Gorda -- from
Punta Gorda.
We are adding to a problem by not having these
interchanges or crossovers. The crossovers need to be put in place
first of all to save lives. Secondly, you're going to have to clean
up the mess. They need dump trucks -- not dump trucks but tow trucks,
what have you, out there in an accident. At the same time the police
have got to be out there to be able to control the traffic flow when
and if we get this hurricane or a hurricane or hurricanes. The time
frame as far as saving lives is critical. I understand that the
response time to save a life you've got to get to them in four
minutes. Now we have an expert in the back here. She sure can fill
us in on the time frame on this thing. The point being we are totally
against the removal of these crossovers for the simple reason that we
need them to save our people's lives. It is just that simple. And if
you have ever been across the Alley and you've ever been behind an
accident, you know exactly what I am talking about. With that in mind,
I want you to think of the Ventura Freeway in California, and you see
the accidents piled up for 60, 70 cars. With that I hope you people
will take an action to stop the removal of these crossovers. Thank
you very much.
CHAIRPERSON MATTHEWS: Thank you, Mr. Perkins.
MR. DORRILL: Lieutenant Addison, also with the
sheriff's department.
LIEUTENANT ADDISON: Thank you, ladies and gentlemen.
For the record I'm Darryl Addison. I'm a lieutenant with the
sheriff's office. I'm here to oppose those removals and not to rehash
what Chief Peterson said, but we had several meetings with Florida
DOT. And I understand they're in the middle. We're not trying to put
this on them. We had several meetings. We came up with some ideas.
We gave them a lot of information. We got the crossovers put in, and
they're taking them out, and we're opposed to that. I'm here on
behalf of the sheriff to say that we are asking you to intervene with
whatever it takes to cease those removals until we can work it out.
I believe that with the information that we have, we
can have some meetings with Florida DOT and the federal people and
come up with a plan without going into some expensive losses, but we
have to have their cooperation. And I think with the assistance of
the board, we can get that. This was not something that was done
overnight. We met with those people for two and a half years before
these occurred, so the federal people were aware of what was going on.
And now they're denying the knowledge of that, and they are putting
our Florida people in the middle. I don't really think that is right.
I think we need to intervene in that. Thank you.
CHAIRPERSON MATTHEWS: Thank you.
MR. DORRILL: The only position that your staff has is
the response time. The helicopter, while it responds to certain
automobile accidents under the protocol, does not always respond and
under certain adverse weather conditions would not respond. But if
you have any other specific questions, I have asked Ms. Flagg to be
here to answer those.
CHAIRPERSON MATTHEWS: Commissioner Norris.
COHMISSIONER NORRIS: Mr. Dorrill, has Representative
Goss' office been involved in this issue for us on our behalf?
MR. DORRILL: I'll look to Chief Peterson. He is
indicating yes.
COHMISSIONER NORRIS: He is indicating yes but still to
no avail.
MR. DORRILL: None to date, I presume.
COHMISSIONER NORRIS: I would suggest that that would
be one avenue that we may want to continue to step up pressure on and
then to go ahead -- and as the county government as well.
CHIEF PETERSON: Excuse me, if I could just clarify
that. The understanding that the federal and state officials we have
contacted Senator Graham, Senator Mack, Senator Dudley, Representative
Goss, Representative Saunders is that this was being worked out and up
to this point everything was okay. Now it comes to the point where it
is not okay. We have attempted to notify these folks to say there is
a problem here. Things aren't okay, and we need to proceed.
COHMISSIONER NORRIS: Thank you.
CHAIRPERSON MATTHEWS: Any other questions?
Commissioner Hancock.
COHMISSIONER HANCOCK: I think it is quite obvious as
we look at this. And, again, I want to thank the FDOT. They may get
made out the enemy at times in this discussion; that simply isn't the
case. I think, in my opinion, this board needs to take a singular
view and a singular approach to our elected representatives, letting
them know of our displeasure with any further removal of these. There
is, and as Chief Peterson mentioned, a standard within the Federal
Highway Administration regarding 5-mile separation or thereabouts.
The standards are there. They are there for a reason. We're just
asking to use them. I don't think that is unreasonable. So for my
two cents, I think we need to take an approach here that says enough
is enough, and let's support what our emergency officials are telling
us needs to be done.
CHAIRPERSON MATTHEWS: I'll give you four cents for
that one. Any other comments?
Do we have a formal direction to the staff of what we
want to do?
COHMISSIONER HANCOCK: Madam Chairman, I would like to
make a motion that the county attorney's office draft a letter for
your signature to the Federal Highway Administration, copying all of
our elected representatives, that we are supportive of the efforts of
our emergency services personnel in effecting the maintaining of the
existing crossovers and no further removal of them.
CHAIRPERSON MATTHEWS: Would you consider including in
that letter that Mr. Cuyler find the citation for the standard
distance between crossovers --
COHMISSIONER HANCOCK: Certainly. I would ask --
CHAIRPERSON MATTHEWS: -- and include that.
COHMISSIONER HANCOCK: -- the county attorney's office
to substantiate that request with whatever evidence may be out there
to help us.
CHAIRPERSON MATTHEWS: Commissioner HacKie.
COHMISSIONER MAC'KIE: Just a question for the county
attorney. Is there anything stronger than a letter that is available
to us?
MR. CUYLER: If I understood the Florida DOT
representative, this is the situation that is not eminent. I mean,
didn't I hear in terms of 18 months or so in terms of crossovers? If
that is the case, I would probably start with the letter and see what
you get and take step two depending on-- we may actually want to set
up some meetings and have some dialogue with the elected
representatives. But it looks as though there is time if that doesn't
work out to pursue other avenues. If that's not the case, I might
suggest other things, but it looks like we have some time.
COHMISSIONER MAC'KIE: Mr. Hancock, I would assume you
would be happy with a letter for now and all appropriate action and
get us back a report that we are giving strong, strong direction to
staff to communicate and take whatever efforts they possibly can to
support --
COHMISSIONER HANCOCK: I will include that statement
within my motion.
MR. CUYLER: I will also put in the letter requesting
written responses from the people that we write to as to what the
status is and what they think they can do.
COHMISSIONER MAC'KIE: I will second that.
CHAIRPERSON MATTHEWS: We have a motion and a second.
Chief Peterson?
CHIEF PETERSON: If I could just share with you-- if
your staff could work with our attorneys, we have gotten some
information already that you've discussed about standards. I requested
some additional information so that part will be done for you. I
think I missed, as well as some others, about the 18 month's time
frame, so if primarily your staff could work with ours, we can share
that information and get you what you need. We greatly appreciate
that.
COHMISSIONER HANCOCK: As part of the request for
support -- for evidence in support of information, I'll include that
in the motion.
CHIEF PETERSON: Thank you very much.
CHAIRPERSON MATTHEWS: Does the second accept that
inclusion?
COHMISSIONER MAC'KIE: Yes. And I just would like to
get some confirmation about the 18 months.
CHAIRPERSON MATTHEWS: You have to come forward, Ms.
Tower.
MR. CUYLER: I may have been mistaken but that is what
I understood it to be.
COHMISSIONER MAC'KIE: I think I heard that too, but it
is critical to them.
MS. TOWER: We have a couple of situations. The rest
area that is presently under construction on the Alley right now at
mile marker approximately 12.5, its construction will conclude
probably by the end of this year, first quarter of the next calendar
year. When that construction has concluded, then the crossovers just
adjacent would be addressed by the department for removal. Then the
recreational access, two of them, two recreational access areas on the
Alley. As those are let to construction, which is about a year and a
half away give or take and then construction on those has concluded,
then we would go back in and address removal of those adjacent
crossovers.
COMHISSIONER HANCOCK: I may then wish to amend my
motion that if a negative response is received from the Federal
Highway Administration or no response within 60 days, that we direct
the county attorney to bring this matter back before the board for
further consideration.
MS. TOWER: I may mention, too, the guidelines you are
receiving for the distancing between crossovers approximately 3 to 4
miles, they are guidelines only, and they are minimal recommendations
for guidelines.
CHAIRPERSON MATTHEWS: They are minimal?
MS. TOWER: Yes. In other words, the recommendation,
given a particular set of circumstance, may be that the spacing should
be greater. They are guidelines only.
CHAIRPERSON MATTHEWS: But if they did it for Broward
County, why not us?
MS. TOWER: Well --
CHAIRPERSON MATTHEWS: I understand. If our facts
support it. Can I ask the motion maker to, regarding this time frame,
ask Mr. Cuyler to bring this back to us with a report within 60 days
regardless of what the response is?
COMHISSIONER HANCOCK: So amended.
COMHISSIONER MAC'KIE: Second.
CHAIRPERSON MATTHEWS: We have a motion and a second.
Is there further discussion?
The motion is to send a letter to the Federal Highway
Association and to copy all of our elected delegation both federal and
state.
MR. CUYLER: I think what I would prefer to do is to go
ahead and write the letter to the federal authorities and copy the
officials but also write a separate letter to all our elected
officials telling them what is going on. The board was in session and
asked for their help and a response from them.
COMHISSIONER HANCOCK: That is agreeable.
CHAIRPERSON MATTHEWS: And to include it in these
letters whatever citation is available for any standards. MR. CUYLER: That is correct.
CHAIRPERSON MATTHEWS: And to bring back a report
either positive or negative within 60 days. We have a motion and a second.
All those in favor please say aye.
Opposed?
There being none, motion passes 5 to 0. Thank you.
Item #8H4
RESOLUTION 95-394 APPROVING, CONFIRMING AND RATIFYING THE COUNTY
ADHINISTRATOR'S ACTIONS RELATING TO THE DETERMINATION OF THE TERMS OF
THE SERIES 1995 ROAD IHPROVEHENT REFUNDING REVENUE BONDS, NOT EXCEEDING
$6,000,000 - ADOPTED
Is everyone currently here associated with the bond
counsel issue?
MR. DORRILL: Yes.
CHAIRPERSON MATTHEWS: Let's move on with that one then
which is item 8(H)(4), a resolution approving, confirming, and
ratifying the county administrator's actions relating to the 1995 road
improvement refunding. Mr. Samet.
MR. SAMET: Good morning. For the record my name is
Marc Samet with Raymond James and Associates, the county's financial
advisor. At the last meeting of the commission, the board authorized
staff and members of the financing team to proceed with the refunding
of the outstanding series 1986 road improvement bond issue. That
issue is backed by the 7 and 9 cent gas tax. The amount of bonds
outstanding in that issue between now and 2010 is $5,515,000 at
interest rates between 6 and 7 percent. The resolution that was
adopted on the 22nd of June also delegated responsibility to the
county manager to accept the bond purchase agreement with certain
requirements, among them coming back for ratification to the board at
this time.
In the pricing booklet that I have here, I'm happy to
report that we were able to work with Kathy Hankins and the
underwriters, Merrill Lynch, and price this refunding bond issue just
last Wednesday, July 12. What I have done in the very first section
-- there is a summary of the financing -- in section one, the size of
this issue is $5,770,000. It produced a gross saving of $630,000.
Those dollars' worth today, present value basis, is $510,000, which
represents 9.26 percent of the outstanding bond issue. The target
savings that we had recommended and that the board authorized is to
proceed with 8 percent. Final maturity remains the year 2010. The
all in-costs or effective interests costs are 5.28, and we anticipate,
with your approval, closing the issue on August 2nd.
On the second page -- I'm sorry. In that section,
sources and uses of funds, just to summarize again the part about the
amount of the bond issue, the $5,770,000, and under uses we show that
we deposit $5,695,000 into an escrow fund held by an escrow agent.
The escrow agent for this transaction is Bank of New York Trust
Company of Florida. We've sent our RFPs for that, the lowest bid.
The cost of issuance, which we'll detail later, was approximatly
$53,000. The bond insurance premium is basis points of total debt
service. That's quite interesting.
In the winter of '94 when interest rates were at
historic lows only one bond insurer wanted to look at a 5 or 6 million
dollar deal. That was the original bond insurer, NBIA. With a volume
much lower this year than in that wonderful year 1994, at least
through February, all four major bond insurers responded and a 35
basis point premium quote from FSA was the lowest. That compares with
60 basis points if it had been the original quote by one loan insurer
in 1994. The underwriter's discount, regardless of which we will
detail later, was $7.59. There is a reserve fund equal to maximum
principal and interest, and that summarizes our sources and uses.
On the very next schedule we show a debt service
schedule. It is simply meant to show you that the interest rates --
we call the interest rates on the outstanding bond -- is 6 percent, 7
percent. When this issue -- the yields will go in 1996 from 3.6
percent to 5.4 percent in the year 2010. We compare that with the
debt service of the existing issue and in the summary analysis it
appears in the next section, which is section 4. In section 4 I just
want to note the very last right-hand columns. We just show that the
savings amount to between $55,000 and $37,000 annually. So the gross
savings are absolute savings of $630,000, but the present value is
$510,000.
In market comparables, that is if we go to section 5,
that week there were no other negotiated Florida deals of similar
size. There were, however, two competitively sold issues in the
market place. The middle issue that appears is a $15 million general
obligation-drawn issue which is insured for Indian River County and a
gorilla size of a deal, $347 million State of Florida, Department of
Transportation.
All these deals were insured and, therefore, rated
triple A. The last two came with underlying ratings of A1 and A-plus.
Our issue had an underlying -- we were insured, and, therefore,
triple A, and with the gas tax issue, with three times coverage, an
underlying rating of A from Hoodys. You may recall last year Hoodys
had given us an A2. We approached Standard and Poors, as we did last
year, and they wanted to give us a triple B-plus, which is an
investment for A-plus. The difference is that they look at the
additional bonds test that we have, 1.33 times, $1.33 for every
dollar. It is a typical additional bonds test for gas tax issue that
was done in the'80s. They wanted to raise that, and we didn't see --
and our recommendation to staff that there was no benefit for the
county having an A, an aggressive insurance premium that was based on
A from Hoodys last year raising the adding bonds test just for S&P to
get up to an A-minus or an A.
What I wanted simply to show, since we had a negotiated
issue of smaller size, was basically that we compare our issue to how
the state competitive issue was sold. We were basically at similar
levels for a number of the middle maturities and in 5 basis points
better for several. The only one where we are at a higher interest
rate was the year 2010. Upon maturity we were at 5.45 percent versus
the 5.4 for the state. For the triple A insured Indian River County,
which is a general obligation issue which was proposed, it was much
more broader based than the sales tax 7 to 9 cents. We had similar
yields for the middle periods, 2004 through 2006, and we were 5 basis
points higher interest rates for those through '07 through 2010, which
I personally feel is being reflected in the good name that Collier has
generally in the market place.
On the next page we list the underwriters' discount
that was paid to Herrill Lynch, to a sole manager, the various cost of
issuance. For your information this issue has-- we felt vanilla
enough. There isn't a management fee paid for the public finance
department -- your average take down or sales commission for the
maturities $5.10 and their total expenses, underwriter expenses, $2.49
per thousand or $14,356. We list how those were broken down
immediately below. The majority of this $14,356 went to underwriter's
counsel, and their fees and expenses to wire same day funds or fed
funds was $1,100, $1,200 for book entry only fees from the DTC, coupon
ID number from CUSIP, et cetera, and their out-of-pockets, which is
travel, mailing, faxes internal advertising was $2,063.
The cost of issuance that the county had are detailed
below. Bond counsel fees and expenses are listed first. Financial
advisor's fees -- our total fee was $7,500. We previously had been
paid on an hourly basis, so we just got the difference of $4,200.
Again, we are RFP'd for printer for the OS. We mapped out the RFP for
the escrow paying agent. And so our total estimated cost of issuance
is $53,350. That is probably a little high, but to that extent the
additional dollars simply go to pay the debt service for a couple
thousand above.
In terms of the market conditions, at the time we sold
-- why did we go out Wednesday last week? Basically you may recall
that on Thursday, July 6th, the Federal Reserve Board cut short-term
interest rates, and there was a big rally. It brought smiles. That
rally continued into the next week, which is why the state came with
its large issue. Our desk had talked to Merrill Lynch and then we
talked to county staff, and our recommendation was to wait until the
Indian River deal was done and the Florida DOT deal was done to see
how their balances were faring, and if they could be done, and there
wasn't huge balances left over in the account, that is if interest
rates didn't swing the other way on Wednesday, we thought that Collier
would have the market to itself. And that is basically what occurred.
The issue was basically oriented for local retail sales here in
Naples; it is the unique nature of Naples and its population. The
issue was supported by the selling group. The local selling group
here was Alex Brown, and they had some local retail orders as well.
On the last page it is simply the historical interest
rates from the bond buyer index as they were at a good point in time.
That is essentially my presentation. Bond counsel neighbors Giblen
and Knickerson (phonetic) is represented by Steve Miller who can
review with you the ratification resolution, which is somewhat
lengthy. And, of course, if you have any questions, we're here.
Scott Wiggins, incidentally, at Merrill Lynch is here as well.
CHAIRPERSON MATTHEWS: Questions?
COHMISSIONER MAC'KIE: I have one.
CHAIRPERSON MATTHEWS: Commissioner Hac'Kie.
COHMISSIONER MAC'KIE: This seems quite obviously
financially the right choice to make. My question just has to do with
the cost of issuance, because I don't have a frame of reference to
what are appropriate costs, and I don't exactly know who on staff --
maybe it was Ms. Hankins. Are we comfortable that we're paying the
standard kinds of costs associated with this issuance?
MS. HANKINS: For the record I'm Kathy Hankins,
director of finance. And the answer is, yes. That is exactly what I
monitored. It was important to me that during that week we weren't
paying a take down that was higher than what other folks were paying,
that our expenses were reasonable. It varies depending on what is
going on in the market, and, yes, yet very comparable rates, and they
did very well. That was a constant searching for documentation. A
lot of phone calls back and forth about why is it this high. Can't
you push harder on the long end? Can't we do better? And, in fact,
as a result of that, we did get some better rates.
COHMISSIONER MAC'KIE: Great. Thank you.
CHAIRPERSON MATTHEWS: Thank you.
MR. DORRILL: You may recall that you authorized me to
do this deal at rates equal or lower than what had previously been
negotiated, and I actually sent a signal to the staff that I wanted
the rates to be lower, and the county attorney prepared a separate
statement for me to sign. And I think between Mr. Hargett, Ms.
Hankins, and Mr. Samet, they did a really good job. And I might also
add that the county attorney's office did a fine job of tracking me
down half way between Driggs and Victor, Idaho.
COMMISSIONER HANCOCK: There are so many towns in that
expanse.
MR. DORRILL: There was a fax sent at 10:01, Rocky
Mountain Time, to the T-Time Valley Lodge, which was the closest fax
machine that I could find. But it consummated the deal. Staff did a
fine job last week.
CHAIRPERSON MATTHEWS: Thank them for doing that.
MR. DORRILL: Mr. Miller will go over the resolution.
MR. MILLER: Just real quickly, as you know on June
20th you passed a resolution delegating certain authority to Mr.
Dotrill if certain parameters were met he could execute a bond
purchase agreement on the county's behalf. All those parameters were
met last week, and he did execute the purchase agreement from Idaho.
Today what we have before you is a resolution which simply ratifies
his actions, approves the purchase contract once and for all, and
because we did get insurance -- and at the time on June 20th we did
not have a commitment from the insurance company -- this resolution
also contains a lot of boiler plate information that the insurance
company requires on every transaction that they insure.
They also required three minor amendments to the bond
resolution which were not significant, and we did discuss those with
staff, the county attorney, the finance director's office. So before
you what you have is basically a ratification of the county
administrator's actions and approval of the insurance requirements. I
would be more than happy to answer any questions.
CHAIRPERSON MATTHEWS: Any other questions?
Commissioner Hancock.
COMMISSIONER HANCOCK: One of the questions, whether it
is appropriate or not, is the general public question of, okay, how in
the end run -- how much is it worth to do this bond issue to the
taxpayers in this county? Is that the $510,000 number I saw? MS. TOWER: Yes.
MR. MILLER: That is the savings.
COMMISSIONER HANCOCK: That is what I was told when I
got the phone call from Mr. Wiggins, and that is what we ended up
with. I am very happy with that.
COMMISSIONER NORRIS: Madam Chairman, I'll make a
motion that we adopt the tax resolution and go ahead and approve this
bond issue.
COMMISSIONER MAC'KIE: Second.
CHAIRPERSON MATTHEWS: We have a motion and a second.
I'm going to assume that the motion maker that we are approving the
resolution that confirms and ratifies the county administrator's
action; is that correct?
COMMISSIONER NORRIS:
CHAIRPERSON MATTHEWS:
COMMISSIONER MAC'KIE:
CHAIRPERSON MATTHEWS:
questions?
That is the motion.
And the second?
Yes.
That is the intent.
Any further
All those in favor please say aye.
Opposed?
There being none, motion passes 5 to 0. Thank you very
much.
COMMISSIONER HANCOCK: I do want to say to especially
Ms. Hankins, thank you for taking that on. You did a terrific job.
COMMISSIONER MAC'KIE: Also, Madam Chairman, do we have
lunch plans?
CHAIRPERSON MATTHEWS: No, we have not made any plans
at this point other than the fact that it is going to be a long day,
so we'll probably take lunch.
COMMISSIONER MAC'KIE: Do you have any idea on whether
we plan to go to 1:00, or are we still going to follow and see how it
goes?
CHAIRPERSON MATTHEWS: I think 12:00 to 1:00 sounds
fine, if everyone else is in agreement.
COMMISSIONER NORRIS: I think we should take lunch from
about noon until Friday.
COMMISSIONER HANCOCK: Ease back from this vacation
thing, shall we.
Item #SG1
REQUEST FOR AUTHORIZATION TO PROCEED WITH THE DEVELOPMENT OF THE TEN
THOUSAND ISLANDS NATURAL RESOURCES PROTECTION AREA (NRPA) - DECLINED.
ITEM TO BE BROUGHT BACK AFTER THE CONCLUSION OF THE EVALUATION AND
APPRAISAL REPORT
CHAIRPERSON MATTHEWS: Next item on the agenda is item
8(G)(1) to receive authorization for development of the Ten Thousand
Islands natural resource protection area. Hi, how are you?
MR. LORENZ: Very good, thank you. For the record Bill
Lorenz, environmental services administrator. Yes, staff is here to
receive board authorization to proceed with the Ten Thousand Islands
NRPA. The action we are requesting today is not to adopt the NRPA or
any management guideline but simply to provide staff authorization to
go through the process, similar to what we went through with Clam Bay,
to develop the management plan and then come back to the board after
public input to present the management plan for the board's approval
or rejection at that particular point or modification as you did in
Clam Bay.
CHAIRPERSON MATTHEWS: Commissioner Constantine.
COMMISSIONER CONSTANTINE: As I was reviewing my old
newspapers when I returned from my vacation I saw on this there are
some other agencies or government entities that are doing some work
with Ten Thousand Islands as well. Should we take that into
consideration now or will that be part of the process when you bring
that back? I just want to make sure somewhere along the line that
fits into the picture.
MR. LORENZ: Yes. That is recognized now and obviously
as we develop the management plan it is the degree that whatever those
agencies are doing, that we compliment those activities but not
duplicate those activities. That will be taken into consideration.
COMMISSIONER CONSTANTINE: Duplication was my main
concern.
COMMISSIONER MAC'KIE:
the item if there --
COMMISSIONER NORRIS:
do that.
CHAIRPERSON MATTHEWS:
COMMISSIONER NORRIS:
I would like to move approval of
I have a few questions before we
Commissioner Norris.
Do we anticipate any ongoing
maintenance expense if we enact an NRPA there?
MR. LORENZ: There is some analysis that was done in
terms of exotic removal. That could be an area that we may want to
look at. It would require some expense or some signage -- additional
signage for manatee zones which could provide some additional expense.
Those would be, again, reviewed and developed through the
development management plan and brought back to the board as a
separate item to the --
COMMISSIONER NORRIS: Okay. Would it be fair to assume
that this proposed area would be very close to 100 percent mangrove
islands?
MR. LORENZ: I think so, yes.
COMMISSIONER NORRIS: That would be a fair assumption?
MR. LORENZ: There are the some problems that are
internal within the mangrove island where we have some of the exotic
problems.
COMMISSIONER NORRIS: The question that I have then
really is if these are mangrove islands and basically mangrove areas
are so highly protected by federal and state law anyway, why do we
need an NRPA to layer upon the other layers of government that already
protect these things? That doesn't seem like a good expenditure of
our county resources to do that.
One other observation here, on page 2 of our agenda
packet, it is talking about the conservation and coastal management
element of our growth management plan. The last part down is
referring to policy 1.3.1, and it mentions something about restoring
and mitigating NRPAs already degraded. My concern here would be that
we are talking about a very large area in square miles depending upon
the tide, of course. But if we designate this as an NRPA, and it is
polluted and disturbed by nature or otherwise degraded somehow, then I
assume from looking at this policy that the county is on the line to
fund the repair or restoration of this area; would that be correct?
MR. LORENZ: I wouldn't take it to that degree. I would
take it to the degree that as we develop the management plan, if we
were to identify areas that should be as priority restoration or
degraded, that is part of the board's policy decision at that point.
To say, yes, we will provide the resources to do it, or if you chose
not to, then that is -- then that would not be part of this particular
NRPA. I think that policy statement says that is the goal that we
would like to see accomplished for each and every NRPA but obviously
-- quite frankly, the goal is not economically feasible. But that is
why each NRPA itself is going to be unique in terms of what we are
going to try to recommend and to what degree we are recommending
certain actions.
COMMISSIONER NORRIS: My main concern is if not taking
some action here that, number one, it duplicates what some other
agencies are already doing or overlapping their responsibility but at
the same time obligating Collier County taxpayers in the future for
something that could be extremely expensive. I think we all saw the
photos when Hurricane Andrew went through there. It ground up
mangroves by the square miles, and if Collier County was on the line
to go in and make a big restoration project, that could be
tremendously expensive, and I'm not sure that I want to see that sort
of thing happen.
MR. LORENZ: Yes. I don't think at all that -- just
simply designating this as an NRPA would be in and of itself
committing the county to do that either, legally or through some sense
of expectation to the public.
CHAIRPERSON MATTHEWS: Commissioner Hancock.
COMMISSIONER HANCOCK: I do share some of Commissioner
Norris' concerns. As we saw with Clam Bay, designating something as a
NRPA almost automatically implies further action at some point. To
designate as a NRPA and then not to do anything there makes no sense.
So I think, in essence, we are opening the checkbook a little bit just
by designating something as a NRPA. The question is how much does it
open and for how long and what is it going to cost the taxpayers.
Those are things we don't know right now.
As we saw with Clam Bay, it's an isolated kind of
smallish system that we can look at almost as an island onto itself.
It does have contributing factors outside of it, but we can deal with
that small an area. Ten Thousand Islands is a project of immensely
different magnitude. And just simple surveying of Ten Thousand
Islands for monitoring of some of these things alone may be well
beyond the reach of our fiscal ability. That is where my concern
comes in with here. To designate a NRPA in an area that we can have
almost no significant impact on seems to be spinning our wheels a
little bit. So that is my caution and my question, because if we are
going to do anything significant in an area of that expanse, it is
going to have a significant burden as we saw just in Clam Bay alone.
Those dollars are not easy to come by.
I guess I have some reservation particularly about the
Ten Thousand Islands because of the magnitude and scope, and because
it does, in fact, obligate us to do something down the road, which in
the end causes us to fund it Iwm a little concerned about the scope
and magnitude of what we may be entering just on this particular item.
CHAIRPERSON MATTHEWS: Commissioner Mac'Kie.
MR. DORRILL: You have two speakers.
CHAIRPERSON MATTHEWS: Two speakers. Okay.
COHMISSIONER MAC'KIE: My response to what -- you guys
are raising valid points, but they are points that we will make those
decisions as we analyze what would be the management plan for this
NRPA. And I think -- I'm guessing, but it makes sense to me that this
is the next proposed NRPA, because it is so obviously an area that
needs to be protected and, frankly, is probably one that isn't going
to be requiring great expense from the county. I think I'm certainly
not going to vote for a management plan that says we have to restore
the mangroves in the event of a hurricane. You know, we will control
what the management plan will be, but this is clearly an area -- if
our comprehensive plan is going to be implemented, this is clearly
logically the next place to go. I like the idea, Commissioner
Hancock, of maybe taking a more challenging area. Maybe there are
areas where we should be spending more money. This NRPA seems to me
is going to be -- I mean in my mind its slam dunk. It needs to be
there, and it's not going to cost us much, and then I hope we will
look at some more challenging type kinds of NRPAs that may cause us to
have to decide whether or not to open our pocketbooks.
CHAIRPERSON MATTHEWS: I have some questions regarding
Ten Thousand Islands. Other than Marco Island and Horrs' Island and
one or two other islands, isn't virtually all of the Ten Thousand
Islands in the federal natural park?
MR. LORENZ: A lot of it is. A lot of it, however, is
part of the lands swap. One of the recommendations we really want the
board to develop is to try to support the land swap with the Colliers
that will put the majority of that area into federal ownership and
that would be a very important part of the management plan of the
NRPA.
CHAIRPERSON MATTHEWS: So I guess what I am trying to
do is get a feel for the Ten Thousand Islands, which covers many, many
square miles. As Commissioner Norris has said, the NRPA that you are
talking about developing a management plan for would encompass all of
the Ten Thousand Islands including Marco Island and Horrs Island --
and what is the other one, Kice Island? Kice Island.
MR. LORENZ: I believe the map on page 14 of your
executive summary would go from Cape Romano south, eastward to-- all
the way to the county line. We would be recognizing that as a total
NRPA. Again, as the NRPA develops there could be certain portions of
it that may be highlighted within that area. That may be more
significant for the county to take certain actions where we wouldn't
necessarily provide that area in the total proposed NRPA. But the
recognition, basically, of that whole area as being environmentally
sensitive and environmentally important and unique is the reason for
showing the boundary the way we show the boundary.
CHAIRPERSON MATTHEWS: Because I would have concern
about developing a management plan that would commit Collier County
funds to be spent on federal property. That would bother me. But if
our management plan were strictly confined to non-federally owned
property and non-privately owned property, then I could look at it
better. But we are not going to know that until the plan is done.
Commissioner Hancock.
COHMISSIONER HANCOCK: I'm going to follow the same
line, probably a little more strictly in that the first five choices
on this list Ten Thousand Islands, CREW, South Golden Gate Estates,
Belle Heade, and Rookery Bay all have some level of state or federal
intervention protection, current programs. There is something going
on from another governmental entity in all five of those. In other
words, we don't exercise -- and I'm probably using the phrase
incorrectly -- total control over any of those areas. Nor do I think
will we have the sole position of having any real impact on them. The
bottom three, Gordon River, Okaloacoochee Slough, and North Golden
Gate Estates, I think are local -- what I would consider local areas
that don't necessarily have that level of intervention. For my -- if
we are going to open a checkbook that is going to have something
coming out of it down the road, I would be more concerned about
hitting an area that already has some level of intervention of other
agencies as opposed to one maybe that we can have the most impact for
our citizens. If we are going to do this, I personally like the
Gordon River or the Okaloacoochee. Those areas to me are those that
are not really being addressed by other governmental levels.
CHAIRPERSON MATTHEWS: Commissioner HacKie.
COHMISSIONER MAC'KIE: Just a question. I like that
idea so much. Is there a reason why -- do we have to do this on
one-at-a-time basis? Can we proceed with a couple at a time?
COHMISSIONER HANCOCK: We can't fund them, but we could
proceed with them.
COHMISSIONER MAC'KIE: Well, we need to look at the
issues and know what funds that are needed and then make the
decisions.
MR. LORENZ: This is an administrative call on my part
in terms of how many we can accomplish with the existing staff we have
as we kind of work through it, try to kind of put them in a pipeline
one at a time. If we can -- one of the areas that we are looking at
here that has been spending a lot of staff time on now is the EAR
process, and if we get over a little bit of a hump, my intent was to
come back very quickly with the next one on the list however that next
one would be. So I would like to get as many in the pipeline as
possible.
The answer to your question about whether we -- when
you look at the list and see the ones that are kind of high on the
list of federal and state agencies for one reason or the other, and
they are tops on our list, there has been basically internal debate.
And I have argued on both sides of the fence, and that is do we start
with NRPAs that are maybe less environmentally important but don't
have as much federal activity versus the ones we know are more
environmentally important and, of course, are being reflected by some
of the federal and state activities in them as well. That has been an
ongoing debate. In fact, EPTAB, in developing this list just recently
as about three months ago when we asked them to re-prioritize it, had
a similar discussion and decided that, no, we will continue with the
list that you see. So I am presenting this as the consensus that
EPTAB has developed, recognizing that the discussion that the board
here has brought up has been similarly waged in both the staff and
EPTAB. I know there is an EPTAB representative here. She may want to
speak a little bit more along those lines. But this is the list that
EPTAB has voted on and has gone with as recommended.
CHAIRPERSON MATTHEWS: Mr. Dotrill, are there speakers?
MR. DORRILL: Yes, ma'am. Ms. Payton. Following her,
Ms. Nichols-Lucy.
MS. PAYTON: Good morning. My name is Nancy Payton.
I'm with Florida Wildlife Federation, and I also am a member of EPTAB
and have been a member for a number of years and have been wrestling
with this issue of the NRPA program and which NRPA proposal comes
forward first or second. I share your concerns about funding a
management program for the Ten Thousand Islands when we have many
other areas that are in more need of that money, and we can have a
direct impact on. But I do point out that in the criteria for
consideration of that NRPA, it is supportive of state preservation
efforts.
It simply can be a resolution that this county supports
the state and federal purchase of the Ten Thousand Islands, and we're
on record that it is an important area, and we want everybody to know
that and go to it, follow it, and do it. And we're going to move on
to our needed NRPAs, which my recommendation is that we think about a
resolution that basically endorses the Ten Thousand Islands as an NRPA
with no commitment of staff time, because I think, basically, the
management program is going to be coming back and say that those
considerations are being done by state or federal officials or are
anticipated. I would prefer to have our money spent on an area that
we can have a direct impact on and a direct control. So my -- I'm not
here as an official representative of EPTAB. That is my personal
opinion as a member of EPTAB. I think that it is worthy of
designation of an NRPA, but I agree that we should be very cautious
about committing any funding to that particular area.
Which brings me to the second step which maybe today is
an appropriate time for us to read this in that list and pull out of
that list one of the areas that you think we should -- EPTAB, and the
staff should be more closely looking at. It would help to move along
things, and we could begin to address a NRPA area that is more within
our control.
COMMISSIONER CONSTANTINE: Question.
CHAIRPERSON MATTHEWS: Commissioner Constantine.
COMMISSIONER CONSTANTINE: You said we should designate
Ten Thousand Islands as an NRPA but not necessarily move ahead with
funding or staff time on that. What then would be the purpose of
declaring an NRPA?
MS. PAYTON: There are various levels or NRPAs, and one
of them is basically -- and this was before the board in MArch of '94
and it was accepted -- this list of criteria, which also appears in
the Growth MAnagement Plan under policy 1.3.1 which the county shall
support state and federal land acquisition programs. And this is a
way of officially, through designating the Ten Thousand Islands as an
NRPA -- just designating it -- we don't develop any management
program. There's nothing that says we have to develop a management
program -- that this area is important to this community; it's quality
of life. We support the state and federal efforts to purchase,
protect, and manage that area. There is nothing in the NRPA program
that says we have to manage it and we have to commit money. This is
the most basic level of the NRPA program, and it moves on up to the
purchase of land which is at the top of the list or the bottom of the
list depending on how you want to look at it. But this is a very
simple gesture on the part of the county to acknowledge that this is
an important area, and we're going to designate it as an NRPA and
leave the management to the state and federal government so that we
can move on and manage and protect our own properties.
As a member of EPTAB, that is basically my position and
that is true for several of the other listings is that it's basically
a resolution without involvement of money or management plan. But
there are ones that are further down the list which maybe we want to
move up today and get working on those.
CHAIRPERSON MATTHEWS: Okay. Thank you.
COHMISSIONER NORRIS: Let me --
CHAIRPERSON MATTHEWS: Commissioner Norris.
COHMISSIONER NORRIS: I believe I heard you say at the
start of your remarks that you're now with the Florida Wildlife
Federation?
MS. PAYTON: Yes. I have been there for a little while
since last year.
COHMISSIONER NORRIS: I'm sorry. Is that a paid
position?
MS. PAYTON: Yes.
COHMISSIONER NORRIS: You're a paid employee?
MS. PAYTON: Yes, I am.
COHMISSIONER NORRIS: Okay. Thank you.
MR. DORRILL: Ms. Nichols-Lucy.
CHAIRPERSON MATTHEWS: Thank you, Ms. Payton.
MS. NICHOLS-LUCY: Good morning. My name is Sue
Nichols-Lucy, and I'm speaking on behalf of the Conservancy. I have
recognized a number of concerns that were brought up, and I felt that
they were very valid. I, too, would like to encourage the board to
authorize to proceed with the development of the NRPA for the Ten
Thousand Island area. I feel that this area offers a great deal of
database information that we can use in other parts of the county. We
are concerned about mangrove die-off. Of all areas in the county,
this is probably the most untouched area that we can study and use for
baseline information, and I feel that is critical. I feel also that
there is probably very little need for any money spent. I do feel
there is a need for some kind of a management plan just to coordinate
what is being done, both on the federal level and the state level. I
think that is a very, I would say, minimal task for the county to
basically identify what is being done and maybe what needs to be done
if anything. But other than that I would just say go ahead, authorize
it and move onto the next one. Thank you.
CHAIRPERSON MATTHEWS: Thank you, Ms. Lucy.
COHMISSIONER NORRIS: Let me ask Mr. Lorenz a question.
How does this impact our requirements, the requirements of our
Growth Management Plan?
MR. LORENZ: The Growth Management Plan requires that
we have an NRPA in place, be completed by August of 1994. We do have a
program in place with the adoption of Clam Bay. I would say that as
an intent from staff and as an intent from when the Growth Management
Plan was developed, is that it envisioned multiple NRPAs. So we are
in the process of the program at this point.
COHMISSIONER NORRIS: Let me ask you, specifically,
does the Clam Bay NRPA satisfy all the requirements of our Growth
Management Plan alone?
MR. LORENZ: I think that would be a policy decision by
the board. If the board looks at this list of NRPAs and understands
what the opportunities are, and what the management -- what you want
to be involved with and says that, gee, after looking at all of
Collier County the only thing that we need to develop is Clam Bay, and
you take that back to the state, I think that is a policy decision for
the board. As a technical staff member, I would recommend that at
this particular point that you don't do that, that you continue with
looking at multiple areas, because there are other areas that need to
be a part of a NRPA program. However, if the board would wish to stop
at that time on this particular point, that is your decision to make
to say that this is as far as we want to go.
COHMISSIONER NORRIS: Well, I have not been a
supporter, if you remember, of the NRPA program all along, because I
find it to be a very redundant-type thing. If it is just something to
satisfy our Growth Management Plan, that to me is almost a make-work
project. Most of the areas that we talk about are so protected by
other laws anyway that it just seems almost nonsensical to me to try
to put on another layer of protection. Is there an opportunity to --
I think I have asked this question before but refresh my memory.
Could we delete the NRPA requirement in full from our Growth
Management Plan?
MR. LORENZ: The 9(J)(5) criteria requires that we have
some program in place to deal with environmentally sensitive lands.
Simply having that -- having said that, we need to have something in
place that would deal with the environmentally sensitive lands, and
the NRPA program is doing that.
COHMISSIONER NORRIS: It is, but doesn't -- don't the
environmental aspects of our Land Development Code address that issue
as well? Would that not qualify?
MR. LORENZ: I think that would be a matter of degree.
My thought is it is looking at broader expanses of land as opposed to
just land development on a project-by-project basis, and, therefore,
the NRPA program is that other foundation other than the Land
Development Code.
COHMISSIONER NORRIS: Thank you.
CHAIRPERSON MATTHEWS: Commissioner Hac'Kie.
COHMISSIONER MAC'KIE: My question for the board is I
don't understand why we couldn't direct staff to designate the first
five areas in this list as NRPAs with minimal to no management plans
if the designation is all that is necessary, and then ask them to
spend their time and efforts on beginning a serious -- a real
management plan for the last three or whichever of those three was
determined to be a priority. That NRPA -- all I am suggesting is that
we have the NRPA designation, not that we add another level of
regulations or spend any money, just that the designation is there as
additional support that this county recognizes, as 9(J)(5) requires us
to, but just because we know it is the right thing to do that we
recognize these as environmentally sensitive areas that deserve
protection. And without adopting a management plan, we acknowledge
that there is adequate protection already in place. For me it is a
rubber stamp of some significance that we acknowledge the importance
of these areas. That is all I really want to do with the first five.
Thereafter, I'd look at some serious management plans.
CHAIRPERSON MATTHEWS: Commissioner Constantine.
COHMISSIONER CONSTANTINE: All we are going to do is
endorse the activities that other regulatory agencies and other
government entities are doing. It seems like it would be a lot
cheaper, a lot less staff time, a lot less commission time, a lot less
taxpayer dollars expended if we simply passed a resolution on some
Tuesday endorsing whatever those government agencies are doing. I
don't know if we need to have some formal designation. I don't know
that we need to do any of that, as long as we endorse -- I think that
still accomplishes what you want, and it shows, yes, we think those
are priority items, and we appreciate the work whatever agencies are
doing, yet it frees up our staff to do other things and spends a lot
less time and money doing it.
CHAIRPERSON MATTHEWS: Commissioner Hancock.
COHMISSIONER HANCOCK: I'm not so sure I want to
endorse everything the state is doing regarding these, so I would stop
short of a blanket endorsement there.
COHMISSIONER CONSTANTINE: I concur. I'm sorry if --
that is not what I wanted to do.
COHMISSIONER HANCOCK: If all we're talking about is
window dressing here, then we've already wasted the time that we've
sat here and discussed it. I understand your intent, Commissioner
Hac'Kie, and I don't disagree with it, but the bottom line is when it
comes to protecting the environment, there are no fewer -- when you do
it there are no fewer than three agencies and many times six and seven
that are out there in the review mode and a lot of other fringe
organizations that become involved. So the Ten Thousand Islands by us
giving it the sign and it becoming a NRPA, really does next to
nothing. If we are going to have NRPAs -- and maybe this board needs
to make a conscious decision as to whether that is in the community's
best interest. But if we were just to window dress endorsements of
what somebody is doing, I think it is nothing more than pandering to a
section of interest. If we're going to have these things, let's look
at things that the community can benefit from in the long term, real
benefit, not just endorsing what someone else is doing.
We have had -- the Gordon River greenway had been
talked about since the Rudat (phonetic) study. It is something that
really has never moved off center, and it requires a lot of time and a
lot of effort and a lot of visioning and thought. And those are the
types of things that if we are going to expend staff time on
environmental issues to benefit the public, then let's really pick one
and let's be meticulous about it. It doesn't mean endorsing it with a
blank checkbook. I'm not saying that. But I am saying let's do what
is really going to have a significant impact. I'm really against just
blanket endorsement of things such as the south Golden Gate Estates or
Belle Heade, even the Rookery Bay thing -- we support all of you, go
ahead and do whatever you want -- because I don't feel that way.
CHAIRPERSON MATTHEWS: We have a motion on the table?
Commissioner Mac'Kie.
COHMISSIONER MAC'KIE: Well, actually what I wanted to
say is that I want to withdraw the motion that I made earlier and
leave open for some other discussion the possibility of -- I
personally would like to see these first five designated as NRPAs
without management plans. If you guys -- if there is not a majority
on the board for that, then there is not. But what I am hearing is
that there is some interest perhaps of a majority of the board in
going forward and looking at what are more Collier County related, and
I would love to spend our efforts on that in that direction.
COMMISSIONER NORRIS: I think we all understand the
environmental importance and the environmental significance of each
one of these areas. My objection and my remarks have been totally
related to the bureaucracy input on these items. I donwt think it is
necessary. My, God, I can write the management plan for the Ten
Thousand Islands here, and it will take four words, leave the area
alone. And that is -- you can spend 25,000 manhours writing a plan
and that is essentially what it is going to say. So tell me what is
the point of expending any staff time on something that you
essentially -- we have no control over that area. It is just too
deeply regulated by all the other agencies. There is just no point in
it, and that is my objection.
CHAIRPERSON MATTHEWS: I think that is what
Commissioner MacwKie is saying, though, that to accept the fact that
it is environmentally sensitive area, an incredibly sensitive area and
that we designate a NRPA without a management plan because, frankly,
the lands donwt even belong to private hands much less the county so
that we could effectuate any control of them at all other than to say,
hey, yeah, it is sensitive. It will help fulfill our comprehensive
plan, but we donwt really need to spend the time to develop a
management plan because, quite frankly, I donwt think there is
anything to manage that the federal government isnwt already doing. I
think that is what I hear her saying.
COMMISSIONER MACwKIE: So I guess I will make a motion.
My motion would be that we direct staff to prepare whatever
resolution is appropriate to give our Growth Management Plan
designation of NRPA to these first five areas without adopting a
management plan at all, the level one NRPA, and then to spend our
efforts beginning on the Gordon River NRPA.
CHAIRPERSON MATTHEWS: I canwt support the first five.
I canwt do that. But the Ten Thousand Islands to me is obvious. But
the first five I canwt support.
COMMISSIONER MACIKIE: Okay. Then Iill withdraw that
and ask them to designate the first one as a NRPA without a management
plan and to spend their efforts toward developing a NRPA for Gordon
River.
COMMISSIONER CONSTANTINE: Would you be willing to
include Commissioner Norrisls management plan?
COMMISSIONER MACIKIE: Absolutely. I love that
management plan. Leave it alone.
CHAIRPERSON MATTHEWS: Leave it alone. Stay out.
We have a motion. Is there a second?
Iill second it to put it on the table so we can vote on
it. The motion is to designate Ten Thousand Islands as a NRPA without
developing any management plan for it other than to say leave it alone
and to direct staff to move forward with a plan on the Gordon River
area. Is that the motion?
COMMISSIONER MACIKIE: That is my motion.
CHAIRPERSON MATTHEWS: I have seconded it. Is there
further discussion? Iill call the question.
All in favor please say aye.
Opposed?
Motion fails 2 to 3.
COMMISSIONER HANCOCK: Let me try to move this in a
direction that I individually havenlt broached regarding NRPAs, and I
guess I'll count on the balance and experience of the board to tell me
if it is a good idea. It seems that we have taken the approach on
NRPAs that it's another regulatory level or that it is a level of
having the county having to go in and do something, make some
expenditure, clear something -- not necessarily the case. In the case
of the Gordon River, and I would say number six, seven, and eight on
this list, my idea of a true natural resource protection area is for
our staff to spend their time finding ways to create incentives for
private property owners to set this land aside or to alter their
actions so that that property is preserved in some nature, not for us
to bring the regulatory hammer down and for us to go and have to start
clearing exotics. I think that is treating the process and not the
problem.
We need to create an incentive program. That incentive
is not necessary in the first five. Someone else is already trying to
do that in some cases in the state by force. Something like the Gordon
River, we have an area where we would like to see set aside for future
use, but it is not our job to dictate that to the property owners.
Our job may be in this case to try and develop -- not necessarily a
management plan that is forced on them, but a list of options to try
to create a way in which the property can be set aside if the private
property owner should choose to do so. We have to make that a viable
option. If we are going to have NRPAs, that is the only way I see us
being proactive in the creation of these areas and complimenting and
aiding everyone.
With that being said, I would like to make a motion
that staff look at creating a NRPA for the Gordon River section and
doing so in the form of providing an incentive for private property
owners to set aside, preserve, or maintain, or improve the existing
conditions within that NRPA.
CHAIRPERSON MATTHEWS: We have a motion. Is there a
second?
Well, I will second that motion to put it on the floor
for discussion. There being none, I'll call the question.
All in the favor please say aye.
Opposed?
Motion fails 2 to 3.
Are we going to try this one more time?
COHMISSIONER HANCOCK: There is no pattern on this
board at all.
COHMISSIONER NORRIS: Not this time. That's okay,
though.
CHAIRPERSON MATTHEWS: I find the upper reaches of the
Gordon River equally important as --
COHMISSIONER NORRIS: Here is my concern. Let me see
if I can voice my concern. Looking at this list, you can see the
first five -- the Hac'Kie five we'll call it. These are already areas
that are under heavy governmental scrutiny and protection by people
outside of Collier County. So there is really -- as a couple of us
board members have said, there really is no point in doing anything in
those areas. The other areas involve a lot of private property and
private property rights and that is something that is going to have to
be approached with extreme caution so that we don't trample on
anybody's rights.
The other thing is when our Growth Management Plan was
designed, there was a tradeoff anticipated and perhaps it wasn't
written as clearly as it should have been, but the urban area was to
be left for development and habitation, and those areas outside of the
urban area were basically to be focussed on through environmental
protection and that sort of thing.
Now here we have our first NRPA. It is on the coast
much less than an urban area, and that is not what their original
intent was. And here we have also number six, the Gordon River. I'm
assuming that is all contained within the urban area, the Gordon
River. And here, once again, we are outside of the original scope of
what was anticipated when the Growth Management Plan was assigned.
I am not in favor at this point of any of these being designated as
NRPAs without some real in-depth look at the impact that it would have
on private property rights.
So at this point I will make a motion that for today
that we decline to proceed with the development of any of the NRPAs on
this list.
CHAIRPERSON MATTHEWS: We have a motion. Is there a
second?
COHMISSIONER CONSTANTINE: I'll second that.
CHAIRPERSON MATTHEWS: We have a motion and a second.
Discussion? Mr. CauterO, I believe you wanted to interject something.
MR. CAUTERO: Yes. Thank you, Madam Chairman, members
of the board, just a quick statement for you. Not being here when
this process took place, but I can tell you that communities of
Florida are undergoing -- there are discussions taking place along the
same lines regardless of what the issue is, whether it is
environmental protection, private property rights, airport planning,
growth planning and similar types of situations. The best
recommendation I believe I can give you now, which would be the
efficient use of the staff time, is to use that evaluation and
appraisal report process to determine what should be the future of the
NRPA program and how you should implement those if you keep that in
your Growth Management Plan, whether you want to use it for properties
that are not under state or federal ownership, a blend, or go the
other route and include all the properties. One of the vehicles to do
that is the technical advisory board for environmental protection. I
believe that that is the best vehicle.
There seems to be a lot of disagreement, based on this
discussion, about what land should be protected, what degree they
should be protected, and which should be left out. I think that is
your best vehicle rather than to pick and choose. Apparently a lot of
time and effort went into preparing this list, but there is still
disagreement as to what areas should be on the list and in what order.
But I think the evaluation and appraisal report is your best
vehicle, and the committee is working on that right now, and there is
a natural resources subcommittee that Bill's staff works with. I just
wanted you to hear that from me before you entertain any motion.
CHAIRPERSON MATTHEWS: Thank you. Commissioner
Hancock.
COHMISSIONER HANCOCK: I appreciate Mr. Cantero's
comments. I find myself agreeing with him. Will the motion maker
amend to include this item coming back to the board after the
conclusion of the EAR for further discussion?
COHMISSIONER NORRIS: I think that is an excellent
suggestion, Mr. Cautero, and I will include as part of my motion that
we -- let me withdraw the motion and restate it as saying for today we
decline to proceed with the NRPA designation and that we hold all of
these discussions in abeyance until we have had a report from the EAR.
COMMISSIONER MAC'KIE: Second.
CHAIRPERSON MATTHEWS: So the motion is essentially to
wait for the results of the EAR before we discuss this further.
We have a motion and a second. Is there further
discussion?
There being none, I'll call the question.
All those in favor please say aye.
Opposed?
There being none, motion passes 5 to 0.
COMMISSIONER HANCOCK: Now, Mr. Cautero, if you had
stepped in at the early part of the conversation --
CHAIRPERSON MATTHEWS: Let's break for lunch. It's
quarter after 12:00. Let's try to return by quarter after 1:00.
(A recess was taken at 12:15 p.m.)
Item #SH1
RECOMMENDATION TO PLACE THE WEEKLY BUDGET AMENDMENT REPORT ON THE
CONSENT AGENDA - APPROVED
CHAIRPERSON MATTHEWS: Call to order -- or I'm sorry,
reconvene the board of county commission meeting for July 18, 1995.
We are at item 8-H-l, a recommendation to place weekly budget
amendment report on the consent agenda.
COHMISSIONER NORRIS: While Mr. Smykowski's coming
forward on that, I'd like to make a motion to approve.
COHMISSIONER CONSTANTINE: I'll second the motion.
CHAIRPERSON MATTHEWS: Good. We have a motion and a
second. If there's no further discussion, all those in favor please
say aye.
Motion passes three to zero, Commissioners Hac'Kie and
Hancock being absent.
Item #8H2
SHORT LIST RANKINGS FOR THE FINAL DESIGN OF THE GORDON RIVER BRIDGE
PROJECT - CONTINUED TWO WEEKS AND COUNTY ATTORNEY TO LOOK INTO LEGAL
RAMIFICATIONS REGARDING CH2H HILL
Next item on the agenda, 8-H-2, a recommendation that
the board approve the short list and authorize staff to negotiate with
the top ranked firm.
MR. CONRECODE: Commissioners, for the record, Tom
Conrecode from your capital projects office. This project dates back
a number of years from 1989 when the city originally solicited a
consultant to do a study back to the interlocal agreement dated in
1992 where the city and county agreed to work together on this.
The results of all that are CH2H Hill was selected by
the city to complete a fatal flaw study and do some preliminary
engineering work towards the location and economic analysis of another
Gordon River bridge project.
The phase 1 report was submitted to the board, actually
a joint session of the board and the city council. And staff has
proceeded with the process to solicit for final design and services to
finish this project.
Those solicitations were sent out in January. A
selection committee comprised of city and county staff short listed
four firms interviewed and has provided the ranking that's in your
agenda item for this package.
Under separate cover you received a memo of Hay 26 from
Dick Gotti of the city where he outlined the rankings and how that
selection process proceeded. Therefore, I didn't re -- reinclude that
with your package.
Subject to any discussions or comments from the public,
staff recommends that the board approve the short list as shown and
direct staff to negotiate a contract with the number one ranked firm
for the balance of services on this project.
CHAIRPERSON MATTHEWS: Are there questions?
Commissioner Norris.
COHMISSIONER NORRIS: Mr. Conrecode, on the -- let's
see, that -- that initial contract was back in 1989 I believe you
said?
MR. CONRECODE: Yes, sir.
COHMISSIONER NORRIS: That was the fatal flaw study and
initial -- oh, there was a little bit of other -- MR. CONRECODE: Yes, sir.
COHMISSIONER NORRIS: -- other work done in that. Seems
to me I recall a provision in there where the firm that was awarded
the initial contract for the fatal flaw and so forth would be
disqualified from the total design project. Is that something I'm
remembering incorrectly or --
MR. CONRECODE: I believe you have that right.
COHMISSIONER NORRIS: I've got that right.
COHMISSIONER CONSTANTINE: Can you say that one more
time?
COHMISSIONER MAC'KIE: Let me read it.
COHMISSIONER NORRIS: You didn't hear it?
CHAIRPERSON MATTHEWS:
Miller, Barton, and Peek.
COHMISSIONER HANCOCK:
CHAIRPERSON MATTHEWS:
We have a letter from Wilson,
Who?
You don ' t know those -- those
years. But it's a letter addressed July 17 of 1995, and Hr. Barton
has asked that we read this letter into the record. And perhaps Mr.
Conrecode would like to do that for us.
But essentially he's saying that they read the RFP when
it was first issued and apparently declined to submit a bid on the
early phase under -- with the understanding that the person who won
the bid on the early phase would not be allowed to compete in a later
design phase. Do you want to read this letter into the record?
MR. CONRECODE: I don't have a copy it, but I'd be happy
to.
CHAIRPERSON MATTHEWS: If you would, I'd appreciate it.
MR. CONRECODE: This item is a letter from Wilson,
Miller to Chairman Bettye Matthews, Collier County Board of County
Commissioners, regarding Gordon River bridge project agenda item
8-H-2.
Dear Chairman Matthews, we write to express a concern
about an aspect of the second Gordon River bridge selection process.
Subject agenda item resulted from a July 19, 1995, request for
proposals. The scope of this project -- I'm sorry, the scope of this
request includes design permit and provide construction services,
hence referenced to as the design phase. The designed phase of the
project is to follow the preliminary report phase solicited in 1989,
hence reference to as the report phase. The report has recently been
completed by CH2H Hill.
Public advertisement for the report phase is enclosed.
Scope was described in the advertisement as you will read includes a
provision that the consultant selected for the report phase would not
be eligible for further work on this project. This provision is not
uncommon in phased projects.
Wilson, Miller in 1989 reviewed the advertised project
and the aforementioned provision. We chose not to submit. We felt
that -- we felt we could best serve by providing the design phase
services and did not want to be precluded from the future work.
The agenda item contains a recommendation to hire CH2M
Hill for design services. This is contrary to the terms of the
original report phase or appeal. We don't understand the legal
ramifications of including CH2M Hill. And even if they are selected,
we have absolutely no thought of raising further questions.
We do believe, however, that it is highly unfair and
improper to this firm and others that relied on the terms of the 1989
RFP. These are the kinds of inconsistencies that lower confidence in
government. We sincerely hope that the Collier County commission will
right this potential wrong. Sincerely, signed, William L. Barton,
P. E., president and CEO of Wilson, Miller. And attached to it is a
copy of the public advertisement from the original 1999 (sic) RFP and
a copy of today's executive summary.
CHAIRPERSON MATTHEWS: Mr. Cuyler, is there a problem
based on what's just been read into the record in that the person
winning the bid for the early phase would not be allowed to compete
for the later phases and now they've been selected or they're in the
number one position?
MR. CUYLER: I have become aware of this rather recently
as the board has. I had understood that in the initial phases with
regard to the advertisement, I'm not sure whether the RFP included
it. I understand in the later phases, the contract phase, it was not
included in the contract.
I think Wilson, Miller is raising a fairness issue.
They've indicated that they would not pursue it any further I believe
regardless what the board does. I have not heard CH2H Hill say that
they would not pursue it any further if the board were to remove them
from the number one ranking.
I think this is something that I'm going to have to
actually go back and go through the paper trail and look at the
paperwork that was done originally to give you any kind of a legal
answer with any foundation at all.
COHMISSIONER MAC'KIE: Commissioner Matthews?
CHAIRPERSON MATTHEWS: Commissioner Hac'Kie.
COHMISSIONER MAC'KIE: My -- my thought about this is --
is frankly while the legal restrictions are important, they aren't
controlling. Common sense, I mean, we have it. It says the
consultant selected for this part of the project will not be
eligible. That's pretty clear. Whether there's some legal loophole
or not, that's just plain old common sense. It says it. We don't
need to be legal about it. We can just be sensible about it.
CHAIRPERSON MATTHEWS: Sensibility, my Lord, new
concept. I -- I don't know what the ramifications of doing whichever
we do today, and I -- and I think I would like Mr. Cuyler to look in
to what the ramifications are. And if this board doesn't mind, I
would like to have a motion to continue.
COHMISSIONER CONSTANTINE: I'll do that. I'll make that
motion. I want to make one comment with that as long as we're talking
common sense. The -- I don't know how much staff time -- and maybe
it's not a lot, but I don't know how much staff time we spend
negotiating these contracts and such. But I hope that we won't spend
too much time or effort negotiating something that the voters haven't
yet approved because I'd hate to have us go spend 40 hours' staff time
and then have this fail at the polls at the end of September so --
MR. CONRECODE: I can assure you in terms of negotiating
a contract, we haven't done one on this, and I haven't spent more than
ten minutes on the phone, and I'm the designated county representative
at this point talking about a contract on this particular project.
Just by way of information, I believe that this same
subject, this same clause, was approached by the city attorney, and
I'm not sure what discussions Ken and the city attorney have had. But
maybe that's something we can pursue a little bit further in the next
two weeks.
COMHISSIONER CONSTANTINE: I will make that motion to
continue.
MR. CUYLER: Just for the -- you may want to take a
second. Just for the record, that was a city process originally as
opposed to a county process, so I need to go into the city and talk to
the city people about what happened.
CHAIRPERSON MATTHEWS: I'm sorry, Mr. Cuyler. I missed
that.
MR. CUYLER: I was just making it clear for the record
that that was a city process originally, not a county process, and I'd
have to go into the city records and go look at it over there.
CHAIRPERSON MATTHEWS: But it's on our agenda to concur
with them.
MR. CUYLER: Correct, now it is a -- yeah, now it
becomes a county process now.
CHAIRPERSON MATTHEWS: We have a motion to continue this
item. Do you want to put a time frame on that, Mr. -- Commissioner
Constantine? Two weeks? Three weeks? What will it take?
COHMISSIONER CONSTANTINE: Two weeks is fine.
CHAIRPERSON MATTHEWS: Two weeks? Do we have a second
for the motion?
COHMISSIONER NORRIS: Second.
CHAIRPERSON MATTHEWS: We have a motion and a second to
continue this item for two weeks. All those in favor please say aye.
Opposed?
There being none, motion passes five to zero.
Item #8H3
PROFESSIONAL SERVICES AGREEMENT WITH CAMP, DRESSER, & MCKEE FOR
ENGINEERING SERVICES RELATED TO THE WATER MASTER PLAN UPDATED (RFP
95-2319) - APPROVED
Next item is 8-H-3, to approve a professional services
agreement with Camp, Dresser, and McKee for engineering services. Mr.
Conrecode.
MR. CONRECODE: Yes, commissioners. Again, Tom
Conrecode from your capital projects office. Staff is recommending
award of a contract under RFP 95-2319 which is to update the water
system master plan. It was last developed and updated in 1985, '86.
This was budgeted in the utilities division annual capital project
budget. And on February 1 an RFP was advertised. A number of firms
responded.
And as a result, the selection committee has ranked the
top three firms as shown in your executive summary and in accordance
with the purchasing policy negotiated a contract and we're presenting
a recommendation to award to the top ranked firm. The fiscal impact
is $257,700 which will require a budget amendment. Staff is
recommending approval of the agreement, authorization for the chairman
to sign, and approval of the budget amendment.
COHMISSIONER NORRIS: Motion to approve.
COHMISSIONER HANCOCK: Second.
CHAIRPERSON MATTHEWS: We have a motion and a second to
approve the professional services agreement. Is there further
discussion?
All those in favor please say aye.
Opposed?
Motion passes five to zero.
MR. CONRECODE: Thank you.
CHAIRPERSON MATTHEWS: Thank you.
Item #9A
RESOLUTION 95-395 URGING THE PROHIBITION OF OFF SHORE DRILLING IN THE
COASTAL WATERS OF COLLIER COUNTY AND SUPPORTING HOUSE OF
REPRESENTATIVES' BILLS, H.R. 72 AND H.R. 73 WHICH PROVIDE FOR A 10 YEAR
MORATORIUM ON ALL OUTER CONTINENTAL SHELF LEASING AND DRILLING OFF THE
COASTAL WATERS OF FLORIDA - ADOPTED
Next item on the agenda is -- let's see, we've done 4 --
under the county attorney's report, a resolution urging the
prohibition of offshore drilling.
MR. CUYLER: Madam Chairman, very briefly, you will
recall, those of us that remember pre-vacation, that Harjorie Ward was
here and she had a resolution, asked that we finalize it, put it back
on the board agenda. This is the resolution.
COHMISSIONER HAC'KIE: Move approval.
COHMISSIONER HANCOCK: Second.
CHAIRPERSON MATTHEWS: We have a motion and a second to
approve the resolution concerning offshore drilling. Is there further
discussion?
All those in favor please say aye.
Opposed?
There being none, motion passes five to zero.
Item #9B
SETTLEMENT IN THE CASE OF JEAN DEHMERAND DONALD E. DEHMER VS. COLLIER
COUNTY, AND EAST NAPLES FIRE CONTROL AND RESCUE DISTRICT, CASE NO.
92-4237-CA-01-CTC - APPROVED
Next item on the agenda is 9-B, a recommendation that
the county -- Collier County board of commissioners approve a
settlement in the case of Jean Dehmer, Donald Dehmer versus Collier
County and East Naples Fire Control District.
MR. BRYANT: Good afternoon, Madam Chairman,
Commissioners. May it please the board. This is a matter we've put
on to ask your approval, and we recommend this settlement with the
county. We believe that this is not only a very fair settlement to
the county but it's appropriate for what we identify the liability in
this matter to be.
COMMISSIONER NORRIS: Motion to approve.
COMMISSIONER HANCOCK: Second.
CHAIRPERSON MATTHEWS: We have a motion and a second to
approve the settlement agreement. Is there further discussion?
There being none, all those in favor please say aye.
Motion passes five to zero.
Thank you.
MR. BRYANT: Thank you, Madam Chairman.
Item #10A
RESOLUTION 95-396 APPOINTING HENRY TRIBBLE TO THE BLACK AFFAIRS
ADVISORY BOARD - ADOPTED
CHAIRPERSON MATTHEWS: Next item -- next item on the
agenda is item 10-A, appointment of a member to the Black Affairs
Advisory Board.
COMMISSIONER CONSTANTINE: There's one vacancy and one
applicant.
CHAIRPERSON MATTHEWS: And one applicant.
COMMISSIONER CONSTANTINE: I'll make a motion we appoint
Mr. Tribble.
COMMISSIONER MAC'KIE: Second.
CHAIRPERSON MATTHEWS: We have a motion and a second to
appoint Henry Tribble to the Black Affairs Advisory Board. All those
in favor please say aye.
Opposed?
Motion passes five to zero.
Item #10B
REAPPOINTING COHMISSIONER CONSTANTINE TO THE PORT AUTHORITY SPECIAL
MANAGEMENT COHMITTEE - APPROVED
Commissioner Constantine, you have an add-on for a
reappointment to port authority?
COMHISSIONER CONSTANTINE: Yeah. As you know, I've
served for the past year on the special management committee of the
port authority as Collier's representative. Mayor Putzell of Port
Charlotte has served as the Charlotte County representative. Lee
County left an option when they created those two positions that they
could reappoint for one additional term the same person, but they did
ask that we ratify that with our respective bodies in our county. So
I would like to continue and do that the additional year, and -- and
Lee County's comfortable with that, but we just need to ratify that if
that's okay with you.
COMMISSIONER HANCOCK: Basically does anyone else want
the job?
COMHISSIONER MAC'KIE: My -- my only comment is I think
-- I'm -- I'm happy as punch for you to continue doing it. I think
it's sort of a courtesy that we should offer the chair the option of
-- of taking that seat if she chooses, that it would be a seat that
would roll with the chair unless she deferred it. That would be my
choice.
COMMISSIONER CONSTANTINE: It's open to discussion.
Actually the reason I was originally appointed wasn't because I was
chair but because I have a background in aviation. COMMISSIONER MAC'KIE: I see.
COMMISSIONER HANCOCK: How long have you served on it?
COMMISSIONER CONSTANTINE: One year.
CHAIRPERSON MATTHEWS: It was just -- just created last
year, wasn't it?
COMHISSIONER CONSTANTINE: Yeah. What I'd like to do is
the main reason I'd like to continue is we are in the midst of our FTZ
talks and have worked with that up until this point. I'd just as soon
try to conclude that.
COMMISSIONER HANCOCK: I appreciate your comments,
Commissioner Mac'Kie, but for the sake of continuity, I would make a
motion that we reappointment Commissioner Constantine for one year.
COMHISSIONER NORRIS: Second.
COMHISSIONER MAC'KIE: Second.
CHAIRPERSON MATTHEWS: We got a second second. We have
a motion and a second to reappointment Commissioner Constantine to the
port authority committee -- what's the rest of the name of it?
COMMISSIONER CONSTANTINE: Special management committee.
CHAIRPERSON MATTHEWS: -- special management
committee --
COHMISSIONER MAC'KIE: Just get us that FTZ, Tim.
CHAIRPERSON MATTHEWS: -- for the next year, and he has
promised us an FTZ.
COHMISSIONER MAC'KIE: We're counting on it.
CHAIRPERSON MATTHEWS: All those in favor please say
aye.
Opposed?
There being none, motion passes five to zero.
COMMISSIONER CONSTANTINE: No quid pro quo there,
trading the FTZ for -- no, no.
CHAIRPERSON MATTHEWS: No, you promised. You promised.
That concludes the morning agenda. Mr. Dotrill, do we
have any public comment?
MR. CUYLER: Apparently not. There was someone here at
the beginning of the meeting Mr. Cuyler indicated, but he's no longer
here.
Item #12C1
ORDINANCE 95-44 AMENDING ORDINANCE 86-37 WHICH CREATED THE NAPLES PARK
AREA DRAINAGE IMPROVEMENT MUNICIPAL SERVICE TAXING AND BENEFIT UNIT -
ADOPTED
CHAIRPERSON MATTHEWS: Okay. Thank you. We'll move to
the afternoon agenda. The first item is 12-C-1, an ordinance amending
ordinance 86-37. Mr. Lorenz.
MR. LORENZ: Yes. If I -- if I may, if you have
specific questions, John Boldt unfortunately is not here right at the
moment. John would be the one prepared for the presentation. If we
could defer this to the next item --
CHAIRPERSON MATTHEWS: This is the Naples Park
drainage?
MR. LORENZ: Yes, yes.
COHMISSIONER NORRIS: There's no difference.
CHAIRPERSON MATTHEWS: Is there anything that's
different?
COHMISSIONER HANCOCK: I do have one question along that
line, and that is we see a cost of 3,832,000 total project cost. Is
that consistent with the projected cost the last time we looked at
this, Mr. Lorenz?
MR. LORENZ: I'd have to have John to speak to the
details. I haven't been working on this particular item in the detail
that John has.
COHMISSIONER HANCOCK: To me that's the only key item in
this. This is otherwise a procedural move, just basically doing what
we had been talked to before, but I need to know that that 3.8 million
is consistent with what the public heard and saw the last time the
board discussed this and had an extensive amount of public input.
MR. LORENZ: It would only be fair if I could have John
answer that question specifically for you.
CHAIRPERSON MATTHEWS: Why don't we -- why don't we pass
over this item. And -- and how long are you anticipating it taking
John to get here?
MR. LORENZ: Five or ten minutes.
CHAIRPERSON MATTHEWS: Five or ten minutes. Let's pass
over this item. And we'll take it up when John gets here.
Item #13A1
RESOLUTION 95-398 RE PETITION OSP-95-1, ANTHONY PIRES, JR. OF WOODWARD,
PIRES, ANDERSON 7 LOHBARDO, P.A., REPRESENTING MARCO ASSOCIATES, L.C.,
REQUESTING APPROVAL OF 17 OFF-SITE PARKING SPACES ON LOT 18 IN SUPPORT
OF THE MARCO ISLAND EXECUTIVE BUILDING LOCATED ON LOT 19 AT THE
SOUTHEAST INTERSECTION OF NORTH COLLIER BOULEVARD (S.R. 951) AND SATURN
COURT - ADOPTED
Next item is 12 -- I'm sorry, 13-A-l, petition OSP95-1,
off-street parking.
MR. MILK: Good afternoon, Commissioners. For the
record, my name is Bryan Milk. I am presenting petition OSP95-1.
The applicant is requesting approval of 17 off-site
parking spaces in support of the Marco Island Executive Building lot
19 located at 207 North Collier Boulevard. The requested off-site
parking spaces are located on lot 18 which is presently undeveloped
and zoned RSF4. The Marco Island Executive Building is zoned C3.
Since the property intended to contain the off-site parking is zoned
residential, the applicant is required to obtain approval from the
board of zoning appeals.
The subject property is located at the southeast
intersection of North Collier Boulevard and Saturn Court. The
property is 80 by 110 feet, and the petitioner proposes to pave 17
parking spaces on site with ingress, egress provided through the
existing parking lot located on lot 19. A landscape buffer is
provided around the perimeter of the site, and a six-foot wooden fence
is proposed adjacent to the residential land uses.
To the east of the subject property is the Wilkie
residence. This property is zoned RSF4 as is the adjacent property
further east of her. This is a residential single-family neighborhood
and is partially developed, again, with single-family homes.
To the south is the Aquarius condominium complex. It's
zoned RHF16 and is developed totally. To the west is the Marco Island
Executive Center. It's zoned C3, and it's developed. Further west is
the North Collier Boulevard right-of-way. To the north is Saturn
Court, and further north is undeveloped RSF4 and C3 property.
The Marco Island Executive Building was built in 1975.
It's -- it's on lot 19, and it is two stories in heighth. The
building has 9,180 square feet of leasable area, and it was designed
and constructed with 30 parking spaces. The first story was approved
for retail type uses, and the second story was approved for
professional office.
In 1986 the entire second floor was remodeled to provide
for 17 executive office suites. The uses remained the same as did the
parking space requirements. However, the building permit indicated
that 48 parking spaces existed and only 30 existed on lot 19.
In 1992, 2,226 square feet of the first floor was
remodeled for a beauty parlor with 6 haircutting chairs. The permit
indicated that 18 spaces were available.
On October the 31st, 1994, a notice of ordinance
violation was issued to the Marco Associates for an improper land use
of lot 18 for off-site parking. Upon reviewing the existing land uses
within the Marco Island Executive Building, 6,954 square feet of the
building is currently being occupied by office-type uses. The land
development code requires one parking space per 300 square feet.
Three hundred and the sixty-nine fifty-four is the twenty-three spaces
required for the office portion of that building.
Two thousand two hundred and twenty-six square feet is
being utilized for the beauty parlor. There's a caveat for beauty
parlors and haircutting places that require 1 space per 200 square
feet or 3 parking places per chair. In this case there's 6 chairs
which would require 18 parking spaces.
If we took one space per two hundred square feet divided
by twenty-two twenty-six, that would require eleven. It says more
restrictive shall apply in this case. In other words, 23 spaces
required for the office and 18 for the beauty salon requires 41
parking places for the immediate users of the Marco Island Executive
Center requiring 11 spaces additional.
On December the 21st, 1994, Mr. Hulhere wrote to the
Marco Associates confirming the illegal use of lot 18 as a parking
lot. Based on evidence provided over the two months by Mr. Pires, it
had been -- based on evidence and historic use, it was understood that
this lot had been and was being used for parking by aerial
photographs.
Based on this, staff issued a temporary approval of lot
18 for a parking lot until Mr. Pires, the agent for the owner, could
submit a off-site parking petition before this board. Mr. Pires in
April -- on April 18 of this year submitted OSP95-1.
The Collier County Planning Commission reviewed this
petition on June the 15th and by a vote of four to two recommended
approval. Staff received approximately six letters opposing the use,
a couple of letters in favor of it, and a couple letters, just
inquiry. What I'd like to do is pass out that correspondence because
I'm not sure since June the 15th if this board received each and every
one of that correspondence, so I'd like to do that.
Mrs. Wilkie, Mr. Amato, Mr. Ross, a neighboring property
owner spoke in opposition to the petition. During the motion for
approval, the planning commission deleted the following staff
recommendations contained within the agreement sheet, Exhibit B:
Construction of a four-foot high architecturally finished fence or
wall adjacent to Saturn Court; continuation of the existing sidewalk
from the terminus of lot 17 to North Collier Boulevard right-of-way;
and the erection of a card-activated gate to entrance of lot 18.
All lots proposed for off-site parking shall meet the
locational requirements for commercial uses identified in the future
land use element of the growth management plan. The board must find
the proposed use consistent with the C1T zoning district and find the
subject property bounded on one side by improved commercial property.
Automobile parking, SIC code 7521 is a permitted use in
the C1T district and is bounded by improved commercial zoning on lot
19. Historically the board has consistently found this criterion
consistent with the growth management plan.
This concludes my presentation, and I'd be happy to
answer any questions.
CHAIRPERSON MATTHEWS: Questions?
Commissioner Mac'Kie?
COHMISSIONER MAC'KIE: Just a summary because I -- I was
listening but sort of lost track of a lot of what you were saying
there at the end, Bryan. As you went through the criteria, what you
told us is that it's staff's opinion that all the criteria are met.
MR. MILK: That's correct, and more importantly, that is
-- a criteria is that the use is consistent with the C1T district and
that it's bounded by commercial zoning which in this case both occur.
COHMISSIONER MAC'KIE: Okay.
MR. MILK: And both are evident.
CHAIRPERSON MATTHEWS: Okay. Any other questions?
Commissioner Hancock?
COHMISSIONER HANCOCK: If this is not granted, would the
building on lot 19 then become a non-conforming use by not having
enough parking?
MR. MILK: It wouldn't become a non-conforming use, but
there would be a need for additional parking for those users of the
building.
COMHISSIONER HANCOCK: And is there any other possible
avenue by which they can have parking other than on lot 19 if this
were not approved?
MR. MILK: The existing lot on lot 19 has -- has 30
existing parking places. Without going off site either to lot 18 or
across the street -- and we -- the petitioner will tell you that
across the street, that property is not for sale. Therefore, he
hasn't pursued that avenue. Again, there's only 30 spaces available
if lot 18 were not to become available.
COMHISSIONER MAC'KIE: That would mean they could have
some use but extremely restricted based upon the parking
requirements.
MR. MILK: I think historically what's happened to this
property is through the change of owners the property was improved, it
was painted, it became leased. You have a situation today where it
appears to be 100 percent occupied. You have a beauty parlor
downstairs. The rest -- the entire second story appears to be leased
as is the opposite ends of the building next to the beauty parlor
itself. In '92 and '90, I'm not sure if the building was 100 percent
occupied, so I don't know if he had that need for the 41 spaces as
there are today.
COMHISSIONER MAC'KIE: Okay.
CHAIRPERSON MATTHEWS: And they've been there since how
long?
MR. MILK: 1992.
CHAIRPERSON MATTHEWS: Other questions?
Petitioner is here?
COMMISSIONER NORRIS: Yeah. I have one -- just a
follow-up. I --
CHAIRPERSON MATTHEWS: Commissioner Norris.
COHMISSIONER NORRIS: I don't think I got a clear --
clear answer to Commissioner Hancock's question which I believe was is
there a way to legalize the operation of the building with 30 parking
spots? How can we do that?
MR. MILK: The building is not non-conforming because
it's -- it's in the C3 zoning district. The building has been
overintensified. What typically happens is the tenants of the
building, if they can't park on site, will have to park in a
right-of-way or out in the street or somewhere else.
Through that situation I would think they'd become
disgruntled and the lease that they had would be terminated and there
would be -- become some vacancies until some users of that building
through continuation of uses would bring that building to provide for
30 parking spaces and the uses would become less intense. Or there
would be vacancies in the building.
I'll tell you what else happened here, too, just for the
record. Almost two years ago we implemented the zoning certificate
process wherein all new businesses for commercial and industrial
businesses, change of address or new businesses, go through the
occupational license people and through the zoning department to check
the use, location, and the on-site parking and ingress and egress and
landscaping and furthermore.
That was not instituted in '92. Therefore, the uses
became more intense. Therefore, the need for additional parking
increased on the site.
MR. HULHERE: Also -- I'm, for the record, Bob Hulhere
with current planning. Bryan's correct, and I just wanted to add,
maybe clarify the answer to your question. If the off-site parking is
not approved, over a period of time presumably some of those uses will
vacate the building.
When new uses come in, the app -- the business owners
will be required to come to us for a zoning certificate. We'll review
the parking on site. Since they only have 30 parking spaces, we will
only be able to allow uses which don't generate more than 30 spaces.
So, you know, maybe if -- if one or two of those
businesses leave, we may actually not be able to allow the tenant to
-- to lease those spaces or occupy those spaces if there's not
sufficient parking. And we'll be able to monitor that through the
zoning certificate process. I hope that clears up --
COHMISSIONER NORRIS: Okay. No, it doesn't.
MR. HULHERE: Okay.
COHMISSIONER NORRIS: Not quite. Close but not quite.
My question is if we -- if the board does not approve the off-site
parking that's requested here today and they're left with 30 parking
spaces, can they still operate -- do we have a mechanism by where they
can still legally operate their building?
MR. HULHERE: Oh, absolutely. They could continue to
operate. It would be a non-conforming -- basically a non-conforming
-- not non-conforming use but non -- they're non-conforming in terms
of not meeting the required amount of parking. They would be able to
continue to operate until such time as some of those uses vacated the
building. When new uses came in, we would limit them to uses that --
COHMISSIONER NORRIS: Okay. That's -- that's where my
concern is. I mean, what -- what do we do about that in the future if
they come up and -- and they have to go through a new zoning
evaluation and we say, you don't have enough parking, and they'll say,
yes, but back on July 18, 1995, you said we could operate this
building with 30 parking spaces?
MR. HULHERE: The only way that -- I mean, this happens
a lot throughout the county where there's an intense use and we change
parking requirements or we come up with new parking requirements, and
many buildings don't have sufficient parking. There are thousands of
them around the county that don't have sufficient parking to meet the
code. When those uses cease to operate, cease to exist, any new use
must meet the code.
And I -- I know of no -- no mechanism to change that
except for what the applicant is requesting which is the off-site
parking which will give them sufficient parking in the future to be
able to operate, you know, to the full capacity that -- that they can
-- you know, I mean, the same thing. They couldn't come in with any
other use that required additional parking beyond the 41 even if this
is approved.
COMMISSIONER MAC'KIE: I think '-
CHAIRPERSON MATTHEWS: Commissioner Mac'Kie?
COMMISSIONER MAC'KIE: See if I have this right. The
short -- the answer to the question as I am hearing it, Commissioner
Norris, because I'm trying to get it too is can they operate the way
they presently are forever. And the answer is if not one single
tenant changed, as long as no tenants changed, they could stay just
like they are with 30 spaces. But as soon as one tenant changes, the
parking is reevaluated and their use of the building would have to
change.
MR. MILK: No. The next tenant would be reevaluated.
MR. HULHERE: Right.
MR. MILK: The next tenant. The building -- building's
set up as a professional office building. It's 9,180 square feet.
You take that and divide it by 300 -- or -- 300 is basically 30
parking spaces. Okay. If you take the existing offices of the
building which is 6,954 square feet divided by 300 is 23.1 spaces.
The area of the beauty parlor is 2,226. If you took that and divided
it by 300, it would give you the 7 remaining professional office
spaces available on site. That's not the case. We have a beauty
parlor in there requiring 18 spaces instead of 7 which there's 11 more
spaces somewhere we need.
COHMISSIONER HAC'KIE: And if that beauty parlor cancels
their lease and goes away, the next use that comes in there can only
be approved if it only needs seven spaces.
MR. MILK: Well, it would be approved for office-related
type uses.
COHMISSIONER HAC'KIE: Because that would be seven
spaces.
MR. MILK: That's correct.
MR. HULHERE: Hay I just add except that our LDC
requires that that use cease to operate. As you may recall, we
recently made a change in the land development code where we changed
it to 180 days except for parking and landscaping which remained at 90
days. So 90 days is the question. If a use ceases to operate for 90
days or more, yes, then they must meet the code.
The only other issue I want to bring up before I let
Bryan come back up is that another important consideration is if the
off-site parking is not approved and the use continues as it is today,
we still have to deal with the problem of not enough parking for the
uses that are in the building and people parking within the
right-of-way which is how this problem got to us in the first place.
I just wanted to add that.
CHAIRPERSON MATTHEWS: I -- I had a question regarding
the -- the -- the potential if we fail to approve this, and -- and
that is that there would only be 30 parking spaces available for
businesses that our own code says need forty -- forty some. MR. MILK: Right.
CHAIRPERSON MATTHEWS: If we fail to approve this, are
we not making it difficult for those businesses to operate? If they
don't have available parking for their customers, their customers may
very well go away.
MR. MILK: I think it's difficult for the patrons of the
building to find a parking space. Therefore, they're parking on the
right-of-way. They get ticketed. They get hauled off. I think that
becomes a difficulty in the tenancy of the building.
CHAIRPERSON MATTHEWS: Or they go away, and the tenants
of the building have to find some other place -- MR. MILK: Some other place.
CHAIRPERSON MATTHEWS: -- to locate. And then we set
into action then this other scenario of just not enough parking,
period.
MR. MILK: That's correct.
CHAIRPERSON MATTHEWS: Petitioner here?
MR. PIRES: Yes, ma'am. If I may, for the record,
Anthony P. Pires Junior with the law firm of Woodward, Pires,
Anderson, and Lombardo.
I have a brief presentation I'd like to make to the
board, but initially as to the questions as to what will happen if
these parking spaces are limited only to the 30, I think we need to
look no further than one of the greatest complaints that was generated
was in December of '94. As part of this process when the notice of
violation was issued, my clients voluntarily roped off a portion of
this site while we worked with county staff to come up with this
temporary approval process.
In that time is when parking in the swales occurred.
That's when my client received a letter from Mr. Patrick Neale who is
attorney for the hair salon telling my client that because lot 18 was
no longer available for parking that people were parking in the swale
and the sheriff's department was being called.
That's what will happen, and Mr. Neale and Mr. Popoff,
the owner of the hair salon, are here today to advise you of that and
other matters.
But additionally, the county is in a position of making
market determinations as to who should be the proper tenants for this
building.
If I could briefly go through some of the history of the
building with the board's indulgence, reserving a time at the end for
some rebuttal and for many other parties that may have an opportunity
to come before the board.
And I have a serial of aerial -- series of aerial
photographs, and I believe the board has had the opportunity to review
these aerials. And I'd like to introduce all of these and make all of
these part of the record.
The building on lot 19 which is the Marco Island
Executive Center, if I could get untangled here, was constructed in
1975. And this first aerial depicts that. And located next to it is
lot 18 which is a vacant, unimproved site. And right next to that is
lot 19. Here is the Marco Island Executive Office Building. This is
North Collier. This is Saturn Court. And the Aquarius condominium
project is right there. That's multi-family. And that's 1975, this
aerial photograph, from November of 1975.
Then we have another aerial photograph from February
1981. And in this aerial photograph -- once again denoted in red,
zooms in on that area -- is the commercial office building on lot 19.
Adjacent to it, as you can see, there's a flared driveway entrance.
Cars are parked, and there's a gravel or white-washed type surface on
lot 18. Note also lot 17 is vacant. But 17 is to the east of lot 18,
and that's where the Wilkies reside at the present time. That lot is
vacant.
Next photograph is an aerial photograph from 1985. This
aerial photograph was taken in February of 1985. Once again, the
commercial structure on lot 19 to the east or right of that is the
parking area. And you can see cars, a couple cars, parked at that
time. Once again, note lot 17 is vacant and unimproved. That was
taken February 1985.
The next aerial photograph is 1989, and that was taken
in April of 1989 per the photograph. There is now a single-family
house on lot 17. But once again, you can see the parking area on lot
18.
And the last photograph is 1993 which, once again, shows
the commercial structure on lot 19, the parking area on lot 18, and
the single-family home on lot 17.
And what these aerial photographs show is that in 1975
that building was built. In at least 1981 by virtue of the aerial
photographs, it's clear that lot 18 was being utilized for parking as
an adjunct for lot 19.
I have also provided -- and I have additional documents
I'd like to introduce in the record -- affidavits from various
knowledgeable parties. I received just one just late yesterday
afternoon, an affidavit of Janet Allen who stated that she is a
licensed real estate broker in the state of Florida. She was employed
by Marco Beach Realty beginning November 1, 1979; that from the period
of her initial employment with Marco Beach Realty in November of 1979,
she began working at the Marco Beach Realty office building located at
207 North Collier Boulevard which is this commercial office building
and the aforesaid 207 North Collier Boulevard as is depicted on
Exhibit A; that from November 1, 1979, through the departure of Marco
Beach Realty from said location at 207 North Collier Boulevard, the
residential lot adjacent to said Marco Beach Realty office building
was continuously utilized in an open and obvious manner for parking
for Marco Beach Realty and other tenants and guests of tenants in the
office building located on lot 19. Said residential lot is depicted
as lot 18 on the attached Exhibit A.
We have furthermore an affidavit from Ken Sanford that
I'd like to make part of the record and that -- his affidavit is that
his office is ERA Seacoast Realty, and for a period of five years
beginning November of '86 he was a tenant in the Marco Island
Executive Center at 207 North Collier Boulevard; that in addition to
the parking provided on said site at 207 North Collier Boulevard being
lot 19, parking by customers and employees and agents and brokers of
ERA Seacoast Realty and others routinely and frequently took place on
the adjacent lot. Said adjacent lot is described and depicted as lot
18. The parking area on said lot 18 has consisted of a gravel stone
surface and was used in an open, obvious, and continuous manner during
the period of 1986 to 1991. Prior to my renting of said premises,
that said parking area on lot 18 had been used continuously as a
parking area for years prior to 1986.
One other aspect with regards to this project is that we
believe there has been this continuous open and obvious use for -- we
can document at least 16 years and maybe more and from the aerials and
from these affidavits. Furthermore, we'll have some testimony from
Mr. Popoff and his familiarity with it.
We have worked hard with the county staff to try to
formalize this. We don't give up any and we are preserving and -- any
rights we may have, but we want to work with them to upgrade this
facility to formalize the use of this for parking.
As part of the approval process in the past -- and I
believe I also included that as part of the packet and would like to
make it part of the record is when Mr. Popoff and the hair salon
applied for his building permit in 1992 he was required to show that
he had adequate parking. The building permit application is part of
the petition. It's building permit application 92-14334. It's
Exhibit 1 to my off-site parking petition.
In there there's a notation by staff that parking is
available for 18 spaces. Mr. Popoff was required to provide and did
provide a lease for lot 18 that said that Rick Popoff and Lisa Popoff
are hereby extended the right to park 18 automobiles on lot 18, block
223 for operation of the Island Salon Beauty Parlor on adjoining
property at 207B. I'd like to make that part of the record.
Found in the county files, found in the building permit
file for the hair salon interior alterations was the resolution
required by Mr. Popoff to show that he could park on lot 18 by the
property owners.
Furthermore, the building permit application that is in
the petition, building permit 86-03553 stated -- when interior
alterations were requested in 1986, it said 48 spaces existing. So
back in '86 the county recognized 48 spaces existed. That's Exhibit G
to the off-site parking petition.
COMMISSIONER NORRIS: Excuse me, Mr. Pires.
MR. PIRES: Yes, sir.
COMHISSIONER NORRIS: Going just back to the letter that
authorized the parking on the 18 -- MR. PIRES: Yes, sir.
COMHISSIONER NORRIS: -- that was from whom to whom?
MR. PIRES: This was from -- it was signed by National
Oil and Gas Company and -- who at that time was the owner of lot 18 in
favor of Mr. Popoff, and this was required -- he was required to
provide this to the county that he had authority of the lot owner to
park on lot 18 in 1992.
COMHISSIONER NORRIS: Okay. But -- all right. We'll go
forward, and I'll make another question later.
MR. PIRES: Yes, sir.
COMMISSIONER NORRIS: You seem to be going to great
lengths to point out to us that this lot has been used in the past on
a continuous open and obvious manner as a parking lot. There must be
-- because you're making such a point of it, there must be some
obvious significance to that in your mind. What is that?
MR. PIRES: Part of it is -- part of the complaints from
the adjacent neighbors, as I understand it -- and Mr. Ross and Mr. --
Mrs. Wilkie who lives next on lot 17 and Mr. Ross who is her father --
part of their argument before the planning commission was that parking
never really occurred until 1994 on this lot 18.
And I have information and I can submit that as part of
the record -- I may wait for rebuttal purposes -- that Mr. Ross
acquired that lot 17 in March of 1985. He built his house on it in
April -- he got the building permit in April of '85 while this lot 18
was a parking lot and that it was known at the time. And, in fact,
some photographs I have introduced or will introduce as part of the
record show how the house was constructed with really only a garage
window and one small upstairs window facing it. That's part of the
significance is the historical use, open and obvious use, that it was
known to that. It's part of that community and part of that
neighborhood in that area.
COMHISSIONER NORRIS: Okay. Yeah. I understand that.
I thought maybe you were going to get into something like a
prescriptive easement argument. Are you going to try to get into some
of that kind of argument?
MR. PIRES: No, sir, I'm not going to get into those
kinds of legal arguments. I'm -- we're preserving all legal arguments
for the record in case there is any difficulty. But no, I'm not going
to argue any -- any case law before this board at this time. Thank
you.
But once again, part of it is that the county
recognized, knew, and acknowledged the use of these back in '86,
recognizing 48 existing spaces in '92, required proof that he could
use it. And once again, you may hear from the owner of lot 17
objecting to the use of this particular property.
We have worked hard with the staff, as I indicated
before, to revise the site plan. And part of the revised site plan
provides for the fact that ingress and egress to this parking is
through the existing driveway. This is lot 19, and the commercial
building is over here to the west. There is no direct ingress, egress
off of Saturn Court to lot 18. There is a six-foot high fence along
the border here, vegetation as required, and low level ground
lighting. So there is no ingress and egress.
If a single-family home was to be located on this site,
they could, in fact, have a driveway located in this area which could
have cars backing out into the driveway of lot 17 which is right next
door.
COHMISSIONER HAC'KIE: Tony, could I ask you a
question?
Madam Chairman?
MR. PIRES: Yes, ma'am.
CHAIRPERSON MATTHEWS: Yeah. I'm sorry. Commissioner
Hac'Kie.
COHMISSIONER MAC'KIE: Thank you. Just that perhaps
because you have -- you're so involved in this case and you can
anticipate what the objectors are going to say and you're -- you're
making part of your rebuttal case now I guess because I'm confused why
this isn't pretty simple that it's an off-site parking agreement, it
meets the criteria and -- and unless it is -- I can see how what
you're saying is that the historical pattern shows that it's not a
problem or it wouldn't create a new impact on the community, on the
neighborhood. Are there --
MR. PIRES: That's our position.
COHMISSIONER MAC'KIE: Okay.
MR. PIRES: I'll be glad to wrap up saving the
opportunity for rebuttal and provide some evidence and testimony, but
I just want to get these items on the record and help the board
possibly understand the historical use of this site from these aerial
photographs.
And we do have the recommendation of staff and the
planning commission. And I believe that Mr. Milk can provide this
board evidence and state that in his opinion that this off-site
parking is 100 percent compatible with the surrounding uses with these
stipulations. And we'd ask a favorable recommendation and reserve
opportunity for rebuttal and rebuttal witnesses.
CHAIRPERSON MATTHEWS: Thank you. I don't have anybody
to tell me if there's speakers or not.
COHMISSIONER MAC'KIE: Anybody want to talk?
MR. WEIGEL: Okay. We've got first Mr. Rick Popoff
followed by Patrick Neale.
CHAIRPERSON MATTHEWS: Mr. Popoff.
MR. POPOFF: My name is Rick Popoff, and I own the
beauty salon in question right now.
I obtained all my -- all the legal documents in
question, did everything by the book, was offered through the owner of
the lot the use of 18 spots, thought everything was fine until my
business started to increase. And then the problems started.
Evidently the use of that lot was never used as much as
I used it. In other words, there were never 18 spots utilized at one
time before. Ever since I've known that property to have the use of
that lot in my -- my 12 years on the island, there's always been 1 or
2 or maybe a handful of cars in that lot, maybe not 18.
I have 12 employees, 12 full-time employees. And it's
my recommendation to them to use that lot so that our clients have
better access to the building, closer parking. So right away there's
12 cars in that lot that probably weren't there before.
It was also my recommendation to the building owner that
the other business owners in the building utilize that lot for their
staff. In other words, my idea was to fill that lot with the people
who work in the building and allow the clientele to utilize the more
accessible area, then again, not realizing or feeling as though I've
done anything wrong, still doing everything by the book.
In retrospect, business is business on Marco Island.
For four months out of the year we get extremely busy, and thank God
for that. That's all I can say.
With the overflow and the problems with the neighbors,
we had to chain that lot off, and that was a difficult time of the
year for us. We had the Collier County Sheriff's Department over
there daily trying to not only satisfy the -- the neighborhood but
also my upset tenant -- I mean my upset clientele wondering if they
were going to be ticketed for parking in an area that wasn't
designated a parking lot.
I think the fact of the matter is -- that I want to
express is I feel as though I have use of that lot. I've never been
told otherwise that I don't. The fact that people who work in that
building still constantly park in the front and back lots irritate
me. And one of the people in question here works for an office in the
building and still continues to park out in front; when I am trying to
rectify the situation, still park in the back. In fact, most of the
time I have my wife drop me off because I know how bad the parking
situation is.
I want to clarify this problem because I don't plan on
going anywhere. I have a -- a good ten-year lease which I hope to
elongate after the end of this term, and I've sunk a tremendous amount
of money into the interior of this building, and I plan on at least
breaking even. And that's going to take at least ten years to do so.
So I'm just hoping for a good situation to evolve here.
And like I said, as far as I'm concerned, there's only one situation
to do that, and that's by allowing that lot to stay open as a parking
lot as it has been since I've been on the island. Any questions?
CHAIRPERSON MATTHEWS: Any questions?
(Chairperson shook head.)
Thank you. Mr. Neale.
MR. NEALE: Yeah. I would just like to reserve my time
in rebuttal if -- if necessary because I don't need to take any more
of the board's time. I think Mr. Pires is doing an adequate job of
presenting the case, so I'd just like to reserve rebuttal time if
necessary.
COMHISSIONER HANCOCK: Just adequate, Pat?
MR. NEALE: You never say great.
CHAIRPERSON MATTHEWS: Are there other speakers, Mr.
Cuyler?
MR. CUYLER: There are two. And by the way, the manager
asked me to call them. So if somebody wasn't here, it was me.
Lynn Wilkie is the next one followed by Mr. Ross.
CHAIRPERSON MATTHEWS: Miss Wilkie.
MS. WILKIE: Good afternoon. I live at 765 Saturn
Court, and we've lived there since 1985. I never would have thought
that I would be before you now --
COMHISSIONER CONSTANTINE: Can you pull that mike down
just a little bit? Thank you.
MS. WILKIE: I never would have thought I would be here
today fighting for what I feel is right. I've lived on -- you know, a
resident of Marco Island for 20 years, lived in the home for 10. I
have four small children. This has never been -- I mean, I would
never have built my home if I knew that I was going to sit right
beside this. We have overnight parking.
You know, when the county allowed them to use temporary
permit, you know, for the time being, not only was it just Rick's
Island Salon, but everybody else was going in there. And I was in the
backyard one day, and I asked -- asked a paint -- a paint truck was in
there. And I asked him, you know, you're not supposed to be back
here. It's right now zoned -- only supposed to be for the tenants.
And, you know, he just outright told me, call the cops, Lady.
And I don't -- I don't let my kids play in the front
yard anymore. It's dangerous. I just think it's wrong. Why should
I, you know, as the abutter pay for everybody's greed because they've
-- what's in that building, you know, like Rick's, they're so large
that they really -- they never should have even been allowed to be
there. You know, if I wanted to build my home on that lot and sit
right on top of the parking lot, I would have built my home there.
I mean, an occasional, an occasional vehicle, was there,
but that's not my job. That's -- that's the county's job to come by
and say, move the car. That's not my job. My job is to raise my
children and make sure that my neighborhood and where I live is a safe
and happy environment, and I hate -- I don't even enjoy my backyard.
I mean, how can you enjoy your backyard when you look at that every
day? And it never was.
And I just -- I'm sickening by the abuse that's gone
on. It's never historically been used. An occasional -- once in a
while there's been a car or two. Now I get to look at -- I don't know
-- 40 cars on a daily basis. My kids don't ride their bikes around
the neighborhood anymore. I don't -- people leave their cars there
overnight. The dirt, the appearance, the devaluation of -- my home
depreciated 30 grand. I -- I just don't know what to do.
COMHISSIONER CONSTANTINE: Do you have tax appraisal
records --
MS. WILKIE: Uh-huh.
COMHISSIONER CONSTANTINE: -- that will show the $30,000
reduction?
MS. WILKIE: We sure do. I'll let my father speak in a
moment. But I just wanted to just let you know that, you know, we
don't know what to do. That's why we're here. You know, I -- I feel
that I should fight for what is right. And it's zoned residential.
It should stay residential. And the people that own and rent in that
building need to find an alternative parking spot or move.
CHAIRPERSON MATTHEWS: Commissioner Hancock, do you have
a question?
COMHISSIONER HANCOCK: Miss Wilkie, some of the things
that you have -- have brought up -- and I'll tell you, first of all,
you have a very valid point. I don't -- if I had to look at this
everyday, I'd be unhappy too. MS. WILKIE: Very.
COMHISSIONER HANCOCK: No question, no qualms. Some of
the things that the petitioner has proposed would in effect answer
some of your concerns. One, visually, if there's a six-foot wall that
is maintained along that line, along the property line, you no longer
see the parking area, nor can your kids accidentally wander into it.
Some things such as I know you have some pictures of some --
MS. WILKIE: Well, yeah. I mean, how long does it take
for these -- for the buffer to grow? I mean --
COMMISSIONER HANCOCK: Well -- and those are -- those
are things that -- that can be addressed. What I'm -- I'm saying is
some of the things you've brought up, this would actually improve over
what you're dealing with now. The flip side is should it be there at
all. And we're going to have to deal with that.
MS. WILKIE: I mean, what's right? What's --
COMMISSIONER HANCOCK: Well, depends on where you stand
sometimes. But I agree. What you have there should not be
happening. But if there is some mix of the two that can happen that
you are protected visually, that your children are safer and so forth,
that may be a solution. But I guess I just wanted to say that there
are some of your concerns that can be answered and appear to have been
addressed here and some that have not such as overnight parking. That
shouldn't be happening, and those are things we can address. So I
just ask you --
MS. WILKIE: I mean, like -- like that truck there, that
sat there for two weeks. It just sat there.
COMMISSIONER HANCOCK: This is -- your comments are
important because this is a stage at which if there is going to be any
parking there, limitations have to be placed on them to protect the
local people who -- who live next to or around it. So your comments
are important.
MS. WILKIE: I mean, we've got several letters also from
the neighborhood objecting.
COMMISSIONER HANCOCK: Okay. Thank you.
CHAIRPERSON MATTHEWS: Commissioner Constantine, you had
another question.
COMMISSIONER CONSTANTINE: When was the house built?
MS. WILKIE: 1985.
COMMISSIONER CONSTANTINE: How long have you lived
there?
MS. WILKIE: Since '85.
COMMISSIONER CONSTANTINE: Since '85? So you've been
there ten years. I guess -- you made the comment that there has been
little or no parking there during that time. And I'm just wondering
because we have these aerial photos that clearly show a dozen cars in
there.
MS. WILKIE: Yeah, right, an occasional -- occasional
vehicle. I mean, it's never been on an everyday occurrence, you know,
day-to-day. It was really never even a concern because it was -- it
just was -- you know, it was never a concern because it was never
abused.
COMMISSIONER HANCOCK: How many were there when you came
today? When you left your house this morning, about how many cars
were --
MS. WILKIE: Well, right now they're pretty much staying
away from my wall --
COMMISSIONER HANCOCK: Uh-huh.
MS. WILKIE: -- and just staying along the whole strip,
so I don't know. Eight, right around eight plus, you know -- you
know, but when -- you know, when we started fighting, they roped off
the entrance. And then they -- they also took the swales, but they
even took the swales when that lot was filled, so it wasn't only when
-- I mean, there just never seems to be enough parking. You know, I
-- I -- I was told that before they took that lot that they were
parking in Aquarius which is the condominium behind until they started
saying we're going to tow your vehicles away.
COMMISSIONER CONSTANTINE: I -- I -- why I ask that
question is that we have a photo here from 1985. And these aerial
photos are of the entire vicinity. They're not simply of that lot, so
I don't think an airplane went up specifically -- MS. WILKIE: No.
COMMISSIONER CONSTANTINE: -- to take pictures on the
date --
MS. WILKIE: Right.
COMMISSIONER CONSTANTINE: -- that cars were in the
lot.
MS. WILKIE: You know, but what they --
COMMISSIONER CONSTANTINE: But in 1985 before your home
was built -- there's a vacant lot where your home now is -- there are
four or five cars. 1989 there's a couple. 1981 there's like a
dozen. And they all show a -- fairly well worn. It's dirt, dusty
area. So I guess my question is when -- you've said several times
it's just occasional use, but it appears on these that it is a regular
use.
MS. WILKIE: I never really gave it much concern because
I never thought it was a big issue. I still don't feel that it was
done abusively before I guess is what I'm saying.
COMMISSIONER CONSTANTINE: Okay.
CHAIRPERSON MATTHEWS: The next speaker.
MR. MULHERE: Madam Chairman, I just wanted to add --
for the record, I just wanted to let you know that your staff worked
-- we also shared the concerns of the residential abutting property
owner, and I think that's reflected in the agreement sheet. And, in
fact, for example, I think we tried to as we have in the past with
these off-site parking petitions mitigate the impacts on the adjacent
residential property.
We probably didn't succeed from the viewpoint of the
residential property owner to the extent they would have liked, and we
probably oversucceeded from the viewpoint of the business owner.
For example, we did require the elimination of that
access directly from Saturn Court to that off-site parking we made
them put an access internal. And that cost them a few parking spaces,
but that we did to minimize the impact on the adjacent residential
property.
And we also -- I'm sure you looked at the conditions.
But, for example, we've required the construction of the wall and the
landscaping, and we've required that all that be done within 120
days. Our suggestion is that if it's not done in 120 days, then this
petition becomes null and void because we want it to be done quickly
during the off season.
And the other thing is we recommended a gate with a --
the suggestion came from the property owner. It was a suggestion
because we want this to be strictly used by employees and not
customers, and that becomes a policing action. I do feel that our
code enforcement can adequately police that should there be
violations, but I understand the residential property owner's
concern. Why should they have to be concerned about having to make
phone calls if there are violations? That -- that requirement was
pulled out by the planning commission, but I just wanted to put that
on the record.
CHAIRPERSON MATTHEWS: What requirement was pulled out?
MR. MULHERE: To put a -- a card-operated gate so that
only employees would be issued cards and they would be the only people
that could get in and out. But recognizing the expense of that, that
was a recommendation of your staff.
CHAIRPERSON MATTHEWS: Well, I -- I note that on the
agreement page, item C limits the parking hours from 7 a.m. to 9 p.m.
stating that customer parking, valet parking, overnight parking of
motorized vehicles or trailers or storage is prohibited.
MR. MULHERE: Right. That was our intent.
CHAIRPERSON MATTHEWS: Yes.
MR. ROSS: Good afternoon.
CHAIRPERSON MATTHEWS: Excuse me. Mr. Cuyler.
MR. CUYLER: Madam Chairman, before Mr. Ross starts --
this is my fault -- we need to get in the habit of the disclosure on
quasi-judicial matters. We need to do it on this one, and we do it on
the next one when we get to that. The -- the resolution says and the
statute provides do it in sufficient time so that anyone that has a
response has a right to get up and rebut anything that they want to
that may have been disclosed ex parte. You can either do that now, or
you can do it after Mrs. -- Mr. Ross's presentation and then ask if
anybody out there wants to make any comments. Either way you want to
handle that would be fine.
CHAIRPERSON MATTHEWS: Why don't we hear from Mr. Ross,
and then we'll handle that.
MR. ROSS: Good afternoon. My name is Donald Ross. I
am Lynn's father. I'm the fellow that built the house. I've been a
real estate broker on Marco Island for 21 years.
I'm very well aware of the aerial photographs. Over a
span of some 7,300 days, we see scattered cars and scattered parking.
And I don't disagree or -- that periodically when they had an overflow
they'd park on the vacant lot. I -- if that's the answer and the
criteria to say, okay, now we're going to make that a parking lot,
then 90 percent of the vacant lots on Marco Island that are illegally
parked on would fall under the same scenario. I don't agree with
that.
I would like to touch on really why -- why we're here,
why we're before you. The building on lot 19 that has 13 parking
spaces conforms to yesterday's rules and regulations and today's rules
and regulations. It was built for certain usage, and it's fine.
The misuse and the misuse of issuing of permits to allow
tenants to occupy that building has created this problem. I don't say
misuse. It's been mistakes on behalf of the staff, on behalf of the
people here in the county who have said, okay, you can go ahead and
you can occupy that building under certain assumptions that, A, a
building is going to be this size. We heard 6 haircutting stations
equating to 18 necessary parking spaces.
I just heard the young man say he employs 12 people.
The truism -- and this was given to me by Bill Bolgar who went down to
the property. There's six haircutting stations for ladies, one for a
man, four fingernail stations, one hair dying station, and a body wax
treatment or whatever. All of those other stations unfortunately are
not covered or recognized in your growth management -- we're being
sort of cross-victimized here. The growth management plan states
beauty parlor, six hair -- haircutting stations, quote, unquote.
So in reality, the beauty salon could have 200
fingernail stations and doing a grandiose business there and not have
to give one parking space. That's not right.
You know, I took the list that I got from Bill Bolgar
and spent $400, went up to American Engineering, Darryl Harsh. I
said, forget what the book says. Let's look at the -- let's enter
some common sense into this thing. If -- if everybody got fair and
equal treatment here, how many spaces do we need to really have this
thing run smoothly and get the cars off the street?
The 17 efficiency little offices upstairs would require
one each. There's also a reception station, so there's really 18
upstairs. If we looked at the 18 spaces that were given away
downstairs for the -- you know, if all he had was six stations, we're
up to 36. If I calculate in the two other offices that are on either
side of the beauty salon on the first floor, that necessitates another
nine.
If I looked at, let's say, the mysterious that nobody
sees seven other stations, that's 21. If I allow for another 6, you
know, beauticians, say 12 employees instead of 6, it doesn't take 2
people per station, but we come up with 72 spaces. That's on the
outside. That's a fact.
Now, if we -- if we back off of that, if you take away
-- you know, eliminate what you will, all I'm -- the point I'm trying
to make is that by adding 16 or 17 more spaces, you can't make the
problem go away.
The -- I was reading one -- one point here on the
original draft that came in on -- for this request. I highlighted a
paragraph in the middle which states the proposed off-site parking
will provide 17 parking spaces which will help provide parking. It
doesn't say eliminate the problem because we can't eliminate the
problem on one lot. It can't be done.
The -- when I brought up to the -- to the planning board
the fact that there were more stations in the building than -- than
your code, your written code, really addresses, all I got was, jeez,
I'm sorry, Don, but looks like we gotta rewrite that. Yes, they're
there, but we can't enforce it.
The fact that permits were issued in error by the county
assuming, you know, that, you know, these spaces were available,
that's not my fault. You know, there was a lot of assumptions here,
but they all fall back that the scapegoat here is going to be my
daughter and my son-in-law who's been a police officer here in this --
in the county for 15 years.
CHAIRPERSON MATTHEWS: Mr. Ross, your time is expired.
Can you wrap it up?
MR. ROSS: I can wrap it up. I had that property
appraised with six months in between, and there has been a devaluation
of $32,000, you know, specifically stressing the fact because of the
-- because of the parking.
COHMISSIONER CONSTANTINE: Has that been changed on the
tax assessor's rolls, or that's a private appraisal?
MR. ROSS: That -- that -- that was two -- I hired two
different appraisers. I find myself right up here now trying to help
my daughter who's a taxpayer -- they work in the county. They live on
the island. They do everything -- competing with a tenant. And I
sympathize with the tenant. It's not his fault, and it's not our
fault. He has a contract with the owner who said, hey, go ahead. You
can park there. That's not my fault. He didn't have the right to do
that. His problem is in a court of law and sue the guy that gave him
the lease.
I'd just like a little protection to -- to do what's
right here. If an overflow parking situation -- periodically one or
two or three cars were good neighbors. Nobody was complaining. When
all of a sudden that lot is full and they're in the streets, there's a
serious problem.
And when the planning board says, we want to vote for
it, we're not even going to make them put a sidewalk from -- from your
house, Lynn, to the corner, there's a lot of consideration there for
four of my grandkids. We don't know where the guy's gonna go. We
don't need a sidewalk.
CHAIRPERSON MATTHEWS: Okay. Thank you.
MR. ROSS: Thank you.
COMHISSIONER MAC'KIE: Could I ask a question before you
leave? The sidewalk, that's the first mention I've heard of that. I
-- I find myself, as you described, feeling bad for the tenant,
feeling bad for the property owner, and I'm looking for a way to split
the baby here.
MR. ROSS: I think the building should be brought back
into conformity. If that young man got a permit for six haircutting
stations, darn it, let him have six haircutting stations, not seven
other miscellaneous things that's going to overload that parking lot
and ruin the place.
COMHISSIONER MAC'KIE: Well, what I -- what I was going
to ask you because I do want to ask staff about that, but -- but what
I was going to ask you is if any of the -- if any of the requirements
that staff or planning commission has imposed, are any of those
helpful? You mentioned something about a sidewalk. Is that what
would address the problem?
MR. ROSS: I'm not -- I'm not looking for a -- I'm
saying you got a -- you got a problem there that was created by your
people, not me.
COMHISSIONER MAC'KIE: I understand that.
MR. ROSS: Then your people should correct it. Your
people should make it go away. We had a problem on MArco Island with
the Snook Inn. They didn't have enough parking. They made them tear
down the motel or close down, one or the other. I mean, it's not easy
to correct a mistake, but it's not fair to -- to damage the value of
the kids' property either.
COHMISSIONER MAC'KIE:
CHAIRPERSON MATTHEWS:
COHMISSIONER MAC'KIE:
staff too.
CHAIRPERSON MATTHEWS:
COHMISSIONER MAC'KIE:
I appreciate it.
Thank you.
Thank you.
If I could just ask a question of
Sure, Commissioner Hac'Kie.
Thank you. Is it true we don't
require any parking for manicure stations? I mean, you could have a
whole salon that's a manicure salon.
MR. MILK: That's correct. In other words, if you're --
if you're a beauty parlor and you have X amount of square feet, we're
going to look at that criteria and see if that's the more
restrictive. We're going to take the one space per -- or three spaces
per seat and use that criteria.
COMHISSIONER MAC'KIE: But you don't count --
MR. MILK: If it was a nail salon --
COMMISSIONER MAC'KIE: You only count hair seats?
MR. MILK: I'm sorry?
COHHISSIONER HAC'KIE: You only count hair seats? You
don't count nail seats?
MR. MILK: That's correct.
CHAIRPERSON MATTHEWS: You don't count the body waxing
station either?
MR. MILK: At this point we do not.
COHMISSIONER HANCOCK: That's -- that's not a decision
that our planning staff makes.
COHMISSIONER MAC'KIE: No, no.
CHAIRPERSON MATTHEWS: I understand.
COHMISSIONER HANCOCK: That is -- what they've done is
taken averages of parking demands generated by beauty salons all over
the U.S., and I don't know the number of examples they used for this
particular one. But that's an ITE industry standard that does most of
the time take into effect ancillary uses. Now, there may be more here
than maybe the sample pool took into consideration. But again, that's
not something our -- our staff sets.
MR. MILK: I know you will see an amendment to the code
as a response to this in the forthcoming LDC amendment. We are going
to put in provisions for nail stations, waxing, suntanning, whatever
as a additional parking requirement over and above the spaces per
chair and the spaces per square footage to all encompass everything
that could possible be involved in a beauty parlor. That is
forthcoming.
But as Commissioner said, that was a standard. We've
used that for several years. And in this particular case, it's being
utilized for more than just a beauty parlor.
CHAIRPERSON MATTHEWS: Commissioner Hancock.
COHMISSIONER HANCOCK: And, Mr. Milk, if you don't know
this, the petitioner may have to -- to answer this. Currently is lot
18 under the same ownership as lot 197
MR. MILK: Yes, it is.
MR. ROSS: Yes.
COHMISSIONER HANCOCK: Okay. When we have two lots
under the same ownership providing parking, why are we -- why do we
have the five-foot setback from the property line on both pieces? Can
they not abut -- can they not cross the property line and abut thereby
pulling the parking further away from the -- the home? MR. MILK: Yes, sir, they could.
COHMISSIONER HANCOCK: So there's nothing to keep us
from taking that parking and sliding it ten feet towards the
commercial building.
MR. MILK: The reason they typically do that is to
provide the buffer and the green space for water management
conveyance. If there's impervious surface on one side and a green
area in between that uses a collective swale system, typically that's
where the ten foot was implemented. We could use five foot for
landscaping, five foot for conveyance.
I think from an engineering standpoint -- and the
petitioner prepared it -- I think it was an engineer that prepared
it. We tried to do so in compliance with the site development plan
process and those regulations. That's why we left that conveyance
area available. You'll see the need for in the land development code
the 15-foot buffer, of course, adjacent to -- COHMISSIONER HANCOCK: Right.
MR. MILK: -- and contiguous to residential properties.
COHMISSIONER HANCOCK: Well, I'll leave that question
for the petitioner as to whether or not there is, in fact, an
engineering reason why we can't do that. And believe me, I understand
those reasons. But, you know, water flows downhill. I don't care
where it comes from or goes to.
MR. MILK: Sure.
COMMISSIONER HANCOCK: So we're going to end up with the
same amount of open space either way. MR. MILK: Right.
COMMISSIONER HANCOCK: In fact, you're actually going to
reduce impervious by reducing the aisle paved between the two, so it
may be beneficial. It may be able to be done. My question was can it
be done per our requirements.
MR. MILK: I think if you make that determination it
can. I think also there's a telephone pole in that easement also of
that ten foot. I think that's one of the requirements. CHAIRPERSON MATTHEWS: A place for a compact car.
MR. ROSS: Just one point I'd like to make before I sit
down and stay down.
CHAIRPERSON MATTHEWS: Mr. Ross, you've -- you've had
your five minutes.
MR. ROSS: Could I have one second? It's very
important. Please.
CHAIRPERSON MATTHEWS: Quickly, very quickly.
MR. ROSS: Over the seven months they've operated under
the temporary use permit, I'd like you to ask Bryan and Bob Mulhere if
we have had full cooperation on behalf of the petitioners. The answer
is we have not. Everything that they've promised to do has been a rip
roaring fight to get it done. I've been with both of these men when
they've made numerous phone calls to the attorney saying, please, will
you please have your client --
CHAIRPERSON MATTHEWS: Okay.
MR. ROSS: -- do what he said he was going to do under
the temporary. And we got nothing until we were ready to come up here
in front of the various boards. And if they're not going to cooperate
under a temporary, it scares me what they'll do under a permanent.
Thank you.
CHAIRPERSON MATTHEWS: Okay. Thank you. Mr. Cuyler, I
presume now would be a reasonable time --
MR. CUYLER: It -- it would be, Madam Chairman.
CHAIRPERSON MATTHEWS: -- to poll the board.
MR. CUYLER: And just so everyone will know what we're
doing, the legislature has now deemed it appropriate for people, if
they wish to, to talk to their elected public officials whether
they're petitioners or not. And we've passed a resolution pursuant to
legislation that says you simply need to disclose those. And if
anybody wants to stand up and say anything about that, anyone being
someone who registered to speak, then -- then they have the ability to
do that.
In terms of disclosure, just any written or oral
communications that you may have had this -- either presentations by
petitioner or anybody else that may be interested in --
CHAIRPERSON MATTHEWS: Okay. I'm going to poll the
members of the board as to whether they have had -- had any
correspondence or conversations with people involving this issue prior
to today.
COMMISSIONER CONSTANTINE: I've had both written and
verbal correspondence on these. However, I -- how do we need -- I'm
assuming the qualification is just as it was before.
MR. CUYLER: Correct. The only difference is you need
to give the general subject matter. In other words, if it was a
letter from the petitioner, you say, well, I received a letter from
the petitioner, basically the same presentation that was made today if
it was and --
COMMISSIONER CONSTANTINE: Sure. I received some
written and verbal information from the petitioner. I also received
information from Marco Island Civic Association.
CHAIRPERSON MATTHEWS: Commissioner Mac'Kie?
COMMISSIONER MAC'KIE: I got the packet from the
petitioner. I had a probably two-minute conversation with a
representative of the petitioner and got the stack of letters that we
got today but am certainly basing my decision on what's going to be
discussed in the hearing today.
CHAIRPERSON MATTHEWS: Commissioner Norris?
COHMISSIONER NORRIS: I've had very brief oral
discussion with the petitioner's representative as well as written
communication from the Marco Island Civic Association. I will base my
decision on what I hear and see and read today.
CHAIRPERSON MATTHEWS: Commissioner Hancock.
COHMISSIONER HANCOCK: Likewise, I also read
correspondence from the Marco Island Civic Association and had a brief
discussion with the petitioner's representative pretty much all of
which has already been contained here today. So I also will make my
decision based on the information presented today.
CHAIRPERSON MATTHEWS: Well, I had a brief discussion
with the representative for the petitioner. I probably have all these
letters somewhere in three weeks' worth of mail, but I haven't read
it, so -- but my -- my decision certainly will be made on -- on the
public issue today.
MR. CUYLER: And if any of the -- I assume the
discussions were along the same lines as what was presented today. If
any of the members of the public that had registered wanted to mention
anything about that, they have the right to do that. If not, we need
to proceed with the hearing.
CHAIRPERSON MATTHEWS: Are there members of the public?
MR. ROSS: Do we want to discuss Marco Island Civic
Association's stand against this, or is that out of line? You said
you got the letters.
CHAIRPERSON MATTHEWS: I presume we've all been -- we've
all been given letters of their position. It appears that everybody
has read that letter --
MR. ROSS: Okay.
CHAIRPERSON MATTHEWS: -- except for myself.
MR. ROSS: Thank you.
CHAIRPERSON MATTHEWS: I've not read it.
MR. CUYLER: And that will become part of the record as
well.
CHAIRPERSON MATTHEWS: I can't read that fast. Are
there any other public speakers, Mr. Cuyler? MR. CUYLER: No, ma'am.
CHAIRPERSON MATTHEWS: Mr. Pires, do you have any
rebuttal?
MR. PIRES: Yes, ma'am, just briefly if I could. In
response to the question as to the sidewalk, why that was deleted from
the requirement, there's a survey that was part of the packet -- and
I'll make this part of the record -- that indicates that the
continuation of the sidewalk that's in front of lot 17, across lot 18,
will lead into a valve box, wet well, electrical panel boxes, and
above-ground risers. I believe those were in the photographs that
were previously submitted as part of the packet and are also submitted
today as part of the record.
There are some SSU utilities risers that are in this
area here. You can see the valve box, wet well, electric box. And
that was a difficulty in accommodating a sidewalk along lot 18.
And furthermore, there is no sidewalk along North
Collier. When you get to North Collier -- and some of the photographs
in the packet indicate no -- no sidewalks on the south side or going
south or going north on North Collier.
COHMISSIONER HANCOCK: But there is one on the north
side, Mr. Pires; correct?
MR. PIRES: I'm sorry, sir?
COHMISSIONER HANCOCK: There is one on the north side of
that road, though; is that correct?
MR. PIRES: Of Collier?
MR. MILK: That's correct.
COHMISSIONER HANCOCK: Yes.
MR. PIRES: That's correct. As to Commissioner
Hancock's inquiry with regards to whether we -- the parking lot could
be moved further west, shifted further away from the residential lot,
I've briefly conferred with the engineers. And they've indicated yes,
it can be.
And we were trying to achieve the separations as the --
as the staff in doing their good job had indicated between the lots
even though it was under the same ownership. And we had discussed
that, and we have no difficulty and can accommodate that from an
engineering standpoint.
COHMISSIONER HANCOCK: Okay.
MR. PIRES: Furthermore, as -- just quickly as to these
photographs, the photograph in the bottom left shows the state of the
sea grapes that were first -- that's part of the temporary approval.
They were first planted. They went into a little bit of a shock, had
some problems with them. The photographs which were introduced as
part of the packet indicate that they're healthy. In fact, at one
point they're about six feet high. They're over the three-foot high
wall along the front.
You go to the second tab of that packet of material and
the -- in fact, the third photograph in shows the house looking
southeast towards that house as of June 13 of 1995. And you can see
the sea grape are over the wall. The wall at that location is three
feet high. There's a blow-up in the next photograph showing that.
And then the fifth photograph in shows two photographs
of June 14 looking east towards the home. You can see they're doing
well and doing healthy.
The taxicab that's in the lower right-hand side, we had
problems with them as a tenant. He is -- the lease is up. They're
out, thank goodness. They were issued an occupational license.
Unfortunately, they never should have been. And they are now gone and
never to return.
The blue van is no longer parking on there. We had,
once again, repeated contacts with them to get them to move it. And
it is no longer -- and that's, once again, back way back in March.
And the bumper arrangements have been much more
organized since the approval process, 15 feet off the property line.
The staff has indicated that it meets the criteria. The
staff's opinion is that it's 100 percent compatible with surrounding
properties based upon the stipulations. Planning commission
recommended approval, and we would graciously respectfully request
approval.
COMMISSIONER MAC'KIE: Just one question.
CHAIRPERSON MATTHEWS: Commissioner Mac'Kie.
COMMISSIONER MAC'KIE: The business about the card
access, did anybody evaluate the cost of that?
MR. PIRES: Rough estimate was an expensive proposition
to do that. We didn't get a real hard number. But after doing all
the installation, that would be a difficult process.
COMMISSIONER MAC'KIE: Oh, now it would be harder?
MR. PIRES: It would be difficult to install that and
maintain the traffic flow just cost-wise and maintenance and
installation.
COMMISSIONER CONSTANTINE: You said rough estimate.
Rough estimate is -- MR. PIRES: If I can get a real quick conference with my
client.
COMMISSIONER MAC'KIE: Please.
CHAIRPERSON MATTHEWS: Mr. Milk, is -- is it within our
ability to -- if we were to approve this off-street parking to require
a combination locked cable between two posts to eliminate or restrict
entirely the parking at night?
MR. MILK: Yes, it is. It's -- it's -- it's within your
realm of jurisdiction, and it says so in section 23411 of the land
development code. You can impose any conditions that you think are
warranted based upon compatibility and safety of this particular lot.
CHAIRPERSON MATTHEWS: I mean, I admit the -- the card
proposition may be expensive, but a cable with a combination lock is
-- and employees have the combination --
MR. MILK: What we definitely didn't want to happen is
for overnight parking, period.
CHAIRPERSON MATTHEWS: Mr. Pires, have --
MR. PIRES: According to the engineer, the estimate for
installation of the electronic gating device is about $2,000.
CHAIRPERSON MATTHEWS: Commissioner Hancock.
COMMISSIONER HANCOCK: And I'm glad to see we aren't
going in the direction of getting mired in the legal details of this
because the important question is obviously the nature of the use and
compatibility. There is a very similar situation to this on the south
side of Solana Road near 41. There was a residential structure there
that was eliminated, and a parking lot was put in its place
immediately adjacent to a single-family home.
When I saw that happening, I wasn't sure what the result
would be. And after the neighbors got the landscape plans and so
forth, they actually became supportive of the idea. I've driven by
several times. And there's some things that they've done there that
have not been proposed here that I think would be beneficial.
It appears to me to be compatible in that location
because of one very important reason, and that is that the parking lot
is full during business hours, a nine-to-five type situation or nine
to seven, and not so much on weekends. That may not be the case
here. I don't know. It depends on what your -- your use is -- is
going to be.
The second thing is they moved it as far away from the
residential structure as possible which begged my -- my earlier
question.
Third is that there is, in fact, a gate that is closed
after business hours so that the lot cannot be used for, you know,
kids parking in there and drinking all night and leaving beer bottles
and that kind of stuff or adults for that matter. That -- that to me
is important also.
Their buffer requirement was far in excess of the
minimum set forth, and I know that we are a little bit in excess of
the minimum here but -- so we've taken a step in that direction.
Employee parking only is another one on that, and they
also did require sidewalks, and they even had to locate -- relocate
some utilities. Whether that's an option here or not, that's for your
engineer to -- to determine.
All of those things together created what I would
consider a compatible situation. But if you remove many of those, you
have what I would consider incompatible because, you know, you're
going to have opposing uses.
I am concerned for the neighbor and that the children
don't wander into a parking lot. I know that they're talking about a
six-foot high wooden fence, and I'm concerned about the sidewalk issue
and all those other things. So I've kind of thrown out a laundry list
of things that if -- if those types of things are included, I think we
have enjoined in a compatible approach. But I -- again, what the
pleasure of the board is or what the petitioner's comments on those I
think would be valuable.
CHAIRPERSON MATTHEWS: Let's hear comments from the
petitioner, and then I need to close the public hearing while we craft
whatever we're going to do.
MR. PIRES: As mentioned previously, the idea of moving
the parking lot further to the west away from the residential -- the
existing single-family home, be happy to do that if that's the board's
pleasure.
As far as enhanced vegetation and buffering, we have the
existing vegetation, the sea grape that was installed on an interim
basis. We have the requirement to do a six-foot high fence. I don't
believe there'd be any difficulty for an additional if I could have a
moment to discuss it with them.
The difficulty with the sidewalk, once again, is in the
packet of photographs, the last photograph shows the above-ground
risers, wet well, and all the stuff that SSU has. That's the
utilities company. That's right in front of lot 19.
COHMISSIONER HANCOCK: And, Mr. -- Mr. Pires, we -- we
put curbs and sidewalks all the time, and my question is, is there
enough room within the right-of-way to get around those utilities
without disrupting them?
MR. PIRES: I don't believe so. The engineer could best
answer that because to relocate it would cost about $50,000 I
understand. Chris Hagan from Johnson Engineering if it's the board's
pleasure could address that issue.
COHMISSIONER HANCOCK: Just simple question.
MR. HAGAN: Sure.
COHMISSIONER HANCOCK: Can we put a sidewalk in without
disrupting the utilities or with minimal disruption to the utilities?
MR. HAGAN: Yes, but - I hate to add a "but", but it's
going to put the sidewalk extremely close to the edge of pavement and,
therefore, endanger possibly the users of that sidewalk.
COMMISSIONER HANCOCK: The users which now have to go
into the road because there is no sidewalk.
MR. HAGAN: They're in the road or they walk next to the
utility. The utilities can be walked around, but a sidewalk can't be
manipulated through them. It's just extremely tight.
COMMISSIONER NORRIS: Would you identify yourself --
identify yourself, please.
MR. HAGAN: I'm sorry. This is Chris Hagan from Johnson
Engineering.
CHAIRPERSON MATTHEWS: Thank you.
MR. PIRES: And if I could just have a moment for an
enhanced buffering, that's along the residential single-family site.
CHAIRPERSON MATTHEWS: Good. I'm going to close --
MR. MILK: Just for the record -- I'm sorry.
CHAIRPERSON MATTHEWS: Mr. Milk.
MR. MILK: Just for the record, that enhanced buffering
already consists of trees that are 10 foot in heighth, a 4-foot -- a
4-foot span, and an inch and three quarters in diameter breast heighth
every 20 linear feet around the entire property along with a double
hedge row of cocoa plum adjacent to and contiguous to Saturn Court.
With the fence, with the buffer, with the landscaping, you're going to
have a 6-foot fence and an upper story canopy, hopefully another 15,
20 feet. That should provide an opacity from the Wilkie residence and
the Aquarius condominium complex.
CHAIRPERSON MATTHEWS: Mr. Pires.
MR. PIRES: In response to that inquiry, with regards --
since we have possibly additional area in there, enhanced buffering
along the single-family site is -- is acceptable to the petitioner.
CHAIRPERSON MATTHEWS: Okay. I'm going to close the
public hearing. What is the pleasure of the board? Commissioner Norris.
COHMISSIONER NORRIS: In listening to Mr. Popoff's
discussion, it's -- it's very easy to sympathize with him and to
understand that he's done everything in good faith and is -- is being
caught in the middle of this discussion. He's -- he's not responsible
for any of this but just merely a bystanding party that it is being
affected by -- by the discussion.
It's not easy to sympathize with anyone who -- who comes
to build a house near an undesirable use and then starts to complain
about the undesirable use, airport, landfill, a parking lot. It's --
it's difficult to generate any sympathy for that.
But to me the overriding concern here is that we have --
COHMISSIONER CONSTANTINE: Waste water plant.
COHMISSIONER NORRIS: -- a residentially zoned property
that's being used for commercial uses. That's something that since
I've been on the board I've resisted and that I don't think is proper,
and I especially don't think it's proper on Marco Island, and I'm
going to make a motion to deny this petition.
CHAIRPERSON MATTHEWS: We have a motion. Is there a
second?
Motion fails for lack of a second.
Is there another motion?
COHMISSIONER MAC'KIE: I wish Commissioner Hancock would
put one together based on that laundry list he made before.
COHMISSIONER HANCOCK: If I -- and I have to be honest.
If I hadn't seen this done elsewhere where I could step up and take a
look at it and actually drive by it dozens of times, I -- I would have
a tough time being supportive. But I am convinced that with the
proper controls a small-scale parking area -- we're not talking about
a shopping mall but a small-scale parking area next to a single-family
home can be compatible.
I would move approval of the item with staff
stipulations in addition to the proposed parking area being moved as
close to the existing parking area as possible providing for only the
existing utility poles that -- you know, maybe 12 inches in diameter.
But again, if it can be butted up against it and that utility pole
exists, fine. If it has to be 12 inches away, fine. I want it moved
away from the residential property to the greatest extent possible.
Second, to install a gate with a locking facility at the
access to this area to be closed and locked after the hours of -- and
again, this time may be negotiable but 7 p.m. on weekdays and --
CHAIRPERSON MATTHEWS: Stip -- stipulation allows 7 a.m.
to 9 p.m.
COMMISSIONER HANCOCK: I understand that. I think 9
p.m.'s a little excessive. Your business offices --
MR. MILK: Can I -- can I just speak to that?
COMMISSIONER HANCOCK: Please.
MR. MILK: There was concern about that because staff
originally went seven to seven -- COMMISSIONER HANCOCK: Uh-huh.
MR. MILK: -- but there's maintenance folks that clean
and -- and clean up, the janitorial staff.
COMMISSIONER MAC'KIE: Can't they park in the regular
lot?
MR. MILK: That was just some of the comment, and that's
why we extended it two hours.
COMMISSIONER HANCOCK: I agree. But unless the -- the
building -- the owner of the building can show me that they have
specific uses in there that operate on a second shift, 30 spaces would
accommodate any cleaning crews and residual business for the -- in my
opinion for the beautician, so the gate to be closed at 7 p.m. 7 days
a week.
I would also like to require and include in the motion
that a sidewalk be provided along lot 18, even if it has to go around
the utilities and lot 19 if that can be done as a part of this motion
to terminate at Collier, South Collier, I believe.
And the last addition that I would like to see -- and
this is where I have the toughest problem because I'm not a landscape
architect -- the canopy that -- that is to be provided I think is
good, but I think we can go one step better. Let's put those on
15-foot centers instead of 20. Then at maturity they will almost grow
together.
MR. MILK: They will grow together.
COMMISSIONER HANCOCK: Okay. They will grow together.
Even better.
MR. MILK: Right.
COMMISSIONER HANCOCK: I'd like to bring those to
15-foot centers instead of 20 just based on the canopy heights I've
seen proposed here.
COMMISSIONER MAC'KIE: Second.
MR. MILK: Can I -- can I ask one question? Are we
going to do anything with the fence that staff proposed along Saturn
Court, the four-foot fence?
COMMISSIONER HANCOCK: I've included in my motion,
unless they conflict, Exhibit B, the stipulation that staff has
proposed.
MR. MILK: Yeah, but that was a planning commission --
COMMISSIONER HANCOCK: Okay. They removed a fence along
Saturn Court?
MR. MILK: That's correct. They removed the sidewalk,
the fence, and the gate.
COMMISSIONER MAC'KIE: But we're putting those back in.
COMMISSIONER HANCOCK: I've put the sidewalk back in.
MR. MILK: And a gate, a locked gate you put back in.
COMMISSIONER HANCOCK: A locked gate we put back in.
MR. MILK: And you talked about the hours.
COMMISSIONER HANCOCK: A fence along Saturn Court, I
really don't see a -- a significant reason for that, the fact that
you've increased the buffer to -- the cocoa plum hedge being
consistent.
MR. MILK: Can we call that a double staggered row of
cocoa plums?
COMMISSIONER HANCOCK: That's fine with me.
COMMISSIONER MAC'KIE: But not the fence.
MR. MILK: But not the fence.
COMMISSIONER MAC'KIE: Okay. Second agrees.
CHAIRPERSON MATTHEWS: Is that all the motion?
COMMISSIONER HANCOCK: That's everything I can think of.
CHAIRPERSON MATTHEWS: Mr. Pires.
MR. PIRES: Madam Chairman, if it's possible, just one
point of inquiry or clarification. The original stipulation called
for completion of all the improvements within 120 days. And I'm not
sure with the addition of particularly the sidewalk issue along lot 19
-- that's where the utilities are, and I'm trying to get a sense of
the -- was it intended the sidewalk be constructed along lot 19 and
then go around the utilities or if it can't be done because of
utilities that it not need to be constructed? I'm just trying to get
a sense of that because it may -- it may add time to the planning and
designing and approval process also.
COMMISSIONER HANCOCK: If it can't be done or its
construction you can show to be injurious or harmful to the general
public and our staff agrees with that, then -- then that -- that's
fine. But what I'm saying is let's try and figure out a way to get it
done because I think it's important to the residents on that street
because the sidewalk right now just terminates at lot 18. I'd like to
see them get a way -- them to have a way to get to the intersection
without getting in the street.
MR. PIRES: Because lot 18 is clear in front. It's lot
teen -- 19 that has that wet well and everything else. That's why I
wanted -- if it can't be done, if that's a sense that it need not be
done because of engineering --
COMMISSIONER HANCOCK: If it can't be done, let's get it
as far as we can get it.
MR. PIRES: Okay. As far as the time frame, the 120
days is tight to begin with, but it might be tighter now with this
additional requirement, especially working on the utilities. If
that's condition G, if it could be 150.
CHAIRPERSON MATTHEWS: Give them 180 days for the
sidewalk then.
COHMISSIONER HANCOCK: Is 180 days sufficient?
MR. PIRES: That'd be absolutely -- that'd be fine.
CHAIRPERSON MATTHEWS: Only for the sidewalk, though.
MR. MILK: Can I -- can I comment on that?
CHAIRPERSON MATTHEWS: Mr. Milk.
MR. MILK: The purpose for the 120 days was to get all
these improvements done before peak season. Another 60 days would put
you into March.
COHMISSIONER MAC'KIE: They can do it in 120 days.
COHMISSIONER HANCOCK: If the petitioner can't do it in
120 days, we'll expect to see you back.
MR. PIRES: Well, the difficulty is this terminates then
if we're not done within 120 days per the approval.
COHMISSIONER CONSTANTINE: That's pretty strong
encouragement to do it in 120 days.
MR. PIRES: Absolutely is and has been from the
inception.
COHMISSIONER HANCOCK: I -- I -- I -- I sense that we're
going to leave it at 120 days.
MR. PIRES: Yes, sir, I sense that also. Thank you very
kindly.
CHAIRPERSON MATTHEWS: We have a motion and a second,
and I'm not going to try to repeat the motion. It's quite lengthy.
Commissioner Norris.
COHMISSIONER NORRIS: Mr. Milk, what happens to this
land usage if the -- if conditions change in the office building? MR. MILK: In the office building, if --
COHMISSIONER NORRIS: Or is this permanent is what I'm
saying.
MR. MILK: This is permanent unless the requirements of
the off-site restrictive covenant aren't upheld. Then this board has
the ability to make it null and void. That's one aspect of it.
The other aspect is if there become some vacancies in
the building, there may not be the need for 41 spaces.
COHMISSIONER NORRIS: Okay. Let me ask one more
clarification before you go. The -- the requirement and the chain --
or the cable and lock are going to be internal?
MR. MILK: That would be internal between lots 18 and
19.
COHMISSIONER NORRIS: There is not an exit to Saturn
Court on lot 187
MR. MILK: That's correct.
COHMISSIONER NORRIS: Okay. I still don't support the
motion, but we might as well go ahead and call it.
COHMISSIONER HANCOCK: To further clarify that, if we
find that is not locked after 7 p.m., it is then a zoning violation;
am I correct?
MR. MILK: That's correct.
COHMISSIONER HANCOCK: And which the county then can
assess a fine?
MR. MILK: They can take away this ability to park on
lot 18.
COHMISSIONER HANCOCK: Okay. That's an important thing
to -- to note is that if any of these are not met, that comes back to
this board and this board as the board of zoning appeals --
MR. MILK: What happens is in the agreement sheet that's
an exhibit to the restrictive off-site parking covenant which is
signed by the board and filed with the clerk and it's an exhibit to
this petition, if any of those restrictions aren't provided for, it
can be rescinded and no more parking on lot 18.
CHAIRPERSON MATTHEWS: Okay. We have a motion, and we
have a second. I'm going to call the question if there's no further
discussion. All in favor please say aye. Opposed?
Motion passes four to one with Commissioner Norris being
in the opposition.
Next item on the agenda, can we -- is John Boldt here
now?
COMMISSIONER MAC'KIE: Yes.
Item #12C1
CONTINUATION OF ITEM #12C1
CHAIRPERSON MATTHEWS: Why don't we drop back to 12-C-1.
COHMISSIONER HANCOCK: Mr. Boldt --
MR. BOLDT: For the record, John Boldt, storm water
management director, and I apologize for not being here earlier.
COHMISSIONER HANCOCK: That's okay. My question that
held this up was that the -- the staff report listed a project cost of
three point, I think, eight two three million dollars. MR. BOLDT: Yes, sir.
COHMISSIONER HANCOCK: Is that, in fact, consistent with
the initial estimates that this board approved moving ahead the
project?
MR. BOLDT: Yes, that's all the table scenarios we've
used up to date. That's the total cost figure we've been using.
COHMISSIONER HANCOCK: Okay. So that -- that has not
changed. This does not represent in any way any increase -- MR. BOLDT: No, sir.
COHMISSIONER HANCOCK: -- beyond what this board has
approved.
MR. BOLDT: We're still dealing, though, with
estimates. We won't know the exact cost until we open the bids.
COHMISSIONER HANCOCK: Okay.
MR. BOLDT: We're further evaluating the financing
costs. The finance committee is going to be approached soon. This is
the cost as the best we know it today.
COHMISSIONER HANCOCK: So if we get an estimate back
that is higher than this, our lowest estimate is higher than this,
will the board see this item again?
MR. BOLDT: Most definitely. As a matter of fact,
you're going to see this item again about three more times between now
and the first of the year.
COHMISSIONER HANCOCK:
approve.
COHMISSIONER MAC'KIE:
CHAIRPERSON MATTHEWS:
COHMISSIONER NORRIS:
COHMISSIONER MAC'KIE:
CHAIRPERSON MATTHEWS:
The next one's going to be August 18.
John, enough said. Motion to
Don't tell us.
Just a minute.
Second. Second.
Hold it. I have to close the
public hearing. First, do we have any speakers?
COHMISSIONER MAC'KIE: Sorry.
MR. DORRILL: No, ma'am.
COHMISSIONER MAC'KIE:
CHAIRPERSON MATTHEWS:
Is there a motion?
COHMISSIONER HANCOCK:
COHMISSIONER MAC'KIE:
CHAIRPERSON MATTHEWS:
Meow.
I'll close the public hearing.
Motion to approve.
Second.
Do we have to go through the ex
parte on this as a public hearing?
HR. WEIGEL: No, absolutely not. This is -- this is
just an advertised hearing for an ordinance amendment.
CHAIRPERSON MATTHEWS: Okay. Fine.
MR. WEIGEL: It's not quasi-judicial.
CHAIRPERSON MATTHEWS: If there's no further discussion,
all those in favor please say aye. Opposed?
There being no opposition, motion passes five to zero.
COHMISSIONER CONSTANTINE: I opposed.
COHMISSIONER HAC'KIE: There was one --
CHAIRPERSON MATTHEWS: Oh, you opposed. I'm sorry. I
thought it was a late aye. Motion --
COHMISSIONER CONSTANTINE: No, that was the other end of
the board.
CHAIRPERSON MATTHEWS: Motion passes four to one,
Commissioner Constantine in the opposition.
Item #13B1
RESOLUTION 95-399 RE PETITION CU-92-6 CRAIG J. PAJER OF HOLE, HONTES
AND ASSOCIATES REPRESENTING FAITH LUTHERAN CHURCH OF NAPLES, FLORIDA,
INC., REQUESTING AN EXTENSION OF A CONDITIONAL USE FOR ACCESORY USES
AND STRUCTURES TO AN EXISTING CHURCH FACILITY THAT HAS PREVIOUSLY
RECEIVED CONDITIONAL USE APPROVAL FOR PROPERTY LOCATED WITHIN THE
NORTHEAST QUADRANT OF GOODLETTE-FRANK ROAD AND SOLANA ROAD - ADOPTED
Next item on the agenda, we are going to skip over
13-A-2 temporarily and take care of 13-B-1 and 2, and then we'll take
a short break and come back and do 13-A-2.
MR. HULHERE: Thank you. Bob Hulhere for the record.
These -- these are two --
COHMISSIONER CONSTANTINE: I'm sorry to interrupt,
but --
MR. HULHERE: Sure.
COHMISSIONER HANCOCK: -- each one of these -- the first
one is an extension of a conditional use for accessory uses to an
existing church. We already approved the conditional use; strictly an
extension?
MR. HULHERE: Staff is recommending approval for both.
COMMISSIONER MAC'KIE: Second.
CHAIRPERSON MATTHEWS: Are there -- are there speakers?
MR. DORRILL: Dr. -- Dr. Spagna is here, and Miss
Johnson is here. And I can assure you that she's going to speak
against it, so I don't know whether you want to hear a presentation or
not.
COMMISSIONER CONSTANTINE: In fairness, if we're going
to hear both sides of the issue -- COMMISSIONER NORRIS: I'll support it if -- oh, there --
there's both sides of the issue? Okay.
MR. MULHERE: Which one because we have two?
CHAIRPERSON MATTHEWS: It's the first one, 13-B-l,
CU92-6.
COHMISSIONER MAC'KIE: Faith Lutheran.
MR. HULHERE: Okay. Is that --
CHAIRPERSON MATTHEWS: Faith Lutheran.
MR. DORRILL: I don't believe, Miss Johnson, you're
not --
MS. JOHNSON: No.
MR. DORRILL: She's not on that one.
CHAIRPERSON MATTHEWS: Okay. All right. I'll close the
public hearing. Is there a motion?
COHMISSIONER CONSTANTINE: I'll make a motion to approve
that item.
COMMISSIONER MAC'KIE: Second.
CHAIRPERSON MATTHEWS: We have a motion and a second.
Is there further discussion?
All in favor please say aye.
Motion passes five to zero.
Item #1382
PETITION CU-94-5, NINO SPAGNA OF FLORIDA URBAN INSTITUTE, INC.,
REPRESENTING BETHEL A.H.E. CHURCH OF NAPLES, FLORIDA, INC., REQUESTING
AN EXTENSION OF A CONDITIONAL USE "1" IN THE "E" ESTATES ZONING
DISTRICT TO ALLOW THE EXPANSION OF AN EXITING CHURCH FACILITY THAT HAS
PREVIOUSLY RECEIVED CONDITIONAL USE APPROVAL FOR PROPERTY LOCATED ON
THE NORTH SIDE OF GOLDEN GATE PARKWAY AND WEST OF 66TH STREET S.W. - TO
BE BROUGHT BACK ON JULY 25, 1995
Next item is 13-B-2, petition CU94-5.
HR. HULHERE: Just to give you a little bit of
background on it since we have some people ready to speak on it, in
this petition Dr. Spagna of the Florida Urban Institute is requesting
the first of three allowable one-year extensions from a conditional
use for Bethel A. H. E. Church of Naples, Florida. And the existing
church is zoned estates and first received provisional use approval in
1980.
On July 26, 1994, petition CU94-5 was approved by the
board of zoning appeals to allow for a 7,650 square foot increase in
the size of the sanctuary for a new fellowship hall -- and for a new
fellowship hall of 5,340 square feet. And it is for those items that
the petitioner's requesting a one-year extension from previously
approved conditional use.
Your staff has reviewed this petition, has done a site
visit, sees that -- is of the opinion that none of the conditions have
changed which would warrant a recommendation to not approve this for a
one-year extension. Therefore, we recommend a one-year extension.
Thank you.
CHAIRPERSON MATTHEWS: Thank you. Mr. Spagna,
petitioner.
MR. SPAGNA: For -- for the record, my name is Nino
Spagna, and I represent the petitioner, and we're in the process of
going forward with the conditional use that was approved.
As a matter of fact, I was at first of the impression
that possibly we would be able to just go ahead and come in for the
preliminary site development plan approval. We've been working on
that. We have most of all the engineering drawings and the
architectural drawings complete.
However, just to be on the safe side we did want -- we
did want to ask for the extension of the conditional use just in case
we were not able to come in before today which we couldn't. But I can
assure the board that we will be coming in for the site development
plan approval within a very short time, possibly weeks or maybe a
month or so, just a matter of tying up all the loose ends and getting
everything that's required. We do want to proceed with the expansion
as we have asked for in the conditional use and hope that the board
will authorize us to do so. I'll answer any questions that you have.
CHAIRPERSON MATTHEWS: Are there questions?
So what has held your getting this accomplished in the
first year is really it appears a logistical problem of just managing
to get it together.
MR. SPAGNA: Just a matter of getting all the plan
requirements ready for submission for the preliminary and final site
development plan.
CHAIRPERSON MATTHEWS: Okay. Commissioner Constantine?
COHHISSIONER CONSTANTINE: All the plan requirements
you've assembled to this point adhere to the terms of the -- of the
original conditional use?
MR. SPAGNA: Yes, they do.
CHAIRPERSON MATTHEWS: We have a public speaker.
MR. DORRILL: Ms. Johnson.
CHAIRPERSON MATTHEWS: Thank you, Dr. Spagna.
MS. JOHNSON: Good afternoon, Commissioners. My name is
Dorothy Johnson. I live on the corner of 66th Street and Golden Gate
Parkway.
I have owned -- I've lived there for over 20 years, and
I've owned the land for over 30 years. I'm very well acquainted with
everything about Golden Gate from the time it was first established.
I have all the original maps and everything about it.
My area is zoned single-family residential, and I have
been fighting lo these many years through many, many commissions until
there's no one left here that knows all we've been through except Mr.
Dotrill and your lawyer here, and that's the reason he said, I'm sure
Mrs. Johnson's going to say something.
I keep -- keep very close tabs on the agenda. It came
out on Sunday. I called the newspaper because you are not in your
offices on that day. They said that's exactly the way they got it. I
read it back to them. They checked it out. They said that's what
they received. I couldn't believe it because I've gone through this
so many times. All these mistakes I have to correct on my five
minutes of time.
And it says, extension of conditional use one. They
were on a provisional use. They got a conditional use after -- when
it was changed, formerly known as the provisional use. Approval for
property located on the north side of Golden Gate Parkway, and that's
the only truth there.
And many people mix up the parkway with the boulevard.
And it says, and 100 feet west of Sixth Street Southwest. There's a
Fifth Street and a Seventh Street Southwest which is just this side of
Wilson Boulevard out across the boulevard and in section 30. It is
not 100 feet west of any Sixth Street Southwest. It is 330 feet west
of 64th Street Southwest. It's not section 30. Section 30 or unit
30, as they call it, is from 1-75 to Santa Barbara. This is in unit
29. I know. I live there. And every time we go through this.
Now, they say they -- consisted of 2.16 acres. I guess
you really understand that residents have to have two and a quarter to
build a house because we are on septic tanks. They already have a
church on 2.16 acres with a public septic tank.
Now, when they said it was in 1980 when they applied for
this, that's true. But they got -- every year they had to come up and
get it extended for six years before they ever built anything, and we
had no idea what they were building.
Now, I've been coming up here a very long time. Now,
the conditional use was put in right after Grace Bible Church came to
you and asked to expand. It was provisional use then. They could not
expand under the laws of provisional use, and it was denied.
But lo within six weeks they had the provisional use law
changed to conditional one. And we now have a building twice the size
of the original building. But even it's on five acres. Now, this
group was here when I was arguing with that point.
I don't see that the residents have much choice in
anything now, and I -- I just can't believe that public facilities can
come in to a residential area and change their laws so they can get
whatever they want. But every one of them come up to you, and each
one of them preached to you.
Now, I called my commissioner all day on Monday to
please respond to me so I could check out all these mistakes that were
made by somebody up here. I got no response whatsoever. I knew it
was the place. I don't know how many others in the public knew it was
the place. But I've been through this all along, and I don't want it
expanded. They already have a public septic tank on 2.16 acres, and I
have to have two and a quarter for a house. You won't let me build
another house on that lot. Now, how can they build another public
expansion on that size of a lot? I'm sorry. I ask that you reject
it.
CHAIRPERSON MATTHEWS: Thank you. Are there other
speakers, Mr. Dotrill?
MR. DORRILL: No, ma'am.
CHAIRPERSON MATTHEWS: Mr. Spagna, do you have a
rebuttal?
MR. DORRILL: We -- we probably need a response to her
first question, that the -- the legal description is -- is incorrect
from her perspective.
MR. HULHERE: To the best of my knowledge, the legal
description is correct. The -- the -- the citing of the section,
township, and range is -- is the correct section. We don't cite the
unit number. We could have used that as part of the legal
description, but we cited the section, township, and range.
MR. DORRILL: And her contention that there is no Sixth
Street, that there is a Fifth Street and a Seventh Street but there is
no such thing as a Sixth Street?
MR. HULHERE: I -- I don't have the file with me, the
full file. I'd have to look at the full file to find out whether or
not there was a Sixth Street, but to my knowledge that legal -- MS. JOHNSON: I live there.
MR. HULHERE: That legal description is exactly as it
was advertised in the original approval, so, I mean, I can certainly
take a look at it.
COHMISSIONER MAC'KIE: And, Mr. Cuyler, if that address
is wrong, would that affect our ability to hear this today?
MR. CUYLER: If it's wrong --
COHMISSIONER MAC'KIE: Afraid it would.
MR. CUYLER: -- it's generally ruled those are bad
advertisements. They don't give reasonable notice as to where the
property is that you're dealing with if it isn't correct. CHAIRPERSON MATTHEWS: I would say so too.
MR. HULHERE: I can certainly get -- you'll be here for
a while yet. I can go back to my office, pull the file, and check it
out.
CHAIRPERSON MATTHEWS: We'll -- we'll be here for a
while.
COHMISSIONER MAC'KIE: Afraid we will.
MR. HULHERE: I'll be happy to do that.
MR. SPAGNA: Madam Chairman, I have no rebuttal other --
other than to say that all we're asking to be able to do here today is
what we've asked for before, and everyone concurred with it. We had
no objections other than Hrs. Johnson. She was here and objected it
-- objected to it the last time I believe and generally objects to
anything that happens along that street. Seems to think that she owns
it and nobody else can do anything along there.
So I hope that you'll always -- that you'll also
recognize the needs of the congregation as well as the other people
that live in the area and let us continue to do what we've asked to do
and which we have been granted permission to do in the past.
CHAIRPERSON MATTHEWS: Commissioner Constantine.
MR. HULHERE: If -- if this --
COHMISSIONER CONSTANTINE: Madam Chairman, before you
close the public hearing, why don't I make a motion that we continue
the public hearing pending the appropriate address.
CHAIRPERSON MATTHEWS: The clarification of the
address.
MR. HULHERE: If it is the incorrect address, we'll have
to readvertise it anyway. If it's not, we can bring it back to you
next week if -- if that is --
COHMISSIONER CONSTANTINE: Or you can bring it back
later today --
COMMISSIONER MAC'KIE: Even today.
COMMISSIONER CONSTANTINE: -- for that matter. I'm just
suggesting you can -- you'll have an opportunity to verify that. I'm
sure it will be at least 30 minutes on the next item.
MR. MULHERE: Okay. We'll do that right now.
COMMISSIONER CONSTANTINE: It'll be a little while.
MR. MULHERE: Thank you.
CHAIRPERSON MATTHEWS: Mr. Cuyler.
MR. CUYLER: You need to either table it till the end of
your meeting, do something, or continue it to a date certain in the
future.
COMMISSIONER CONSTANTINE: I'll make a motion to table
it to the end of the meeting. Then if we need to continue it at that
time --
COMMISSIONER NORRIS: Second.
CHAIRPERSON MATTHEWS: Excuse me. We can't table when
we don't have a motion.
MR. CUYLER: It would be a motion to table.
CHAIRPERSON MATTHEWS: A motion to table. Okay.
COMMISSIONER HANCOCK: And the second was down here.
COMMISSIONER NORRIS: Second was down here.
CHAIRPERSON MATTHEWS: A second, okay. We have a motion
and second to table this until the end of the day. Is there further
discussion?
There being none, all in favor please say aye.
Motion -- opposition?
Motion passes five to zero. We'll discuss this
further.
COMMISSIONER NORRIS: We may as well take a little
break.
CHAIRPERSON MATTHEWS: Yeah. Let's take a break until
quarter to four, and then we will come back with the final item.
(A short break was held.)
CHAIRPERSON MATTHEWS: Let's reconvene the board of
county commission meeting for July 18. We have a couple housekeeping
items that we're going to take care of. Number one, Mr. Mulhere has
the answer to the conditional use item. And the public comment that
we had earlier in the day has now made himself present not
understanding exactly what the rules are. And one or two minutes and
we'll do it.
Mr. Hulhere.
MR. HULHERE: Yeah, I just wanted -- while there's no --
there's no requirement these conditional use extensions be advertised,
so technically I don't think it's -- we would need to come back and
have another hearing. However, it's correct that instead of 6th
Street that should have been 64th Street. The legal description
within the body of the resolution, both the previously approved
conditional use and the request for extension, is correct.
CHAIRPERSON MATTHEWS: Okay.
MR. HULHERE: However, you know, when the agenda was
advertised, it does say Sixth Street. So, you know, we -- we'd be
happy to correct that and bring it back to you.
CHAIRPERSON MATTHEWS: It's -- it's your recommendation
that we correct it and bring it back next week.
HR. HULHERE: Right.
CHAIRPERSON MATTHEWS:
that effect?
COHMISSIONER HANCOCK:
COHMISSIONER NORRIS:
CHAIRPERSON MATTHEWS:
Okay. Can I have a motion to
So moved.
Second.
Second. We have a motion and --
we have a motion and a second to correct the typographical error on
the conditional use extension and bring it back next week. If there's
no further discussion, all in favor please say aye.
Opposed?
There being none, motion passes four to zero,
Commissioner Constantine being absent.
Item #11
PUBLIC COMMENT
We -- we have a -- a public petition speaker who wanted
to speak earlier today but had to run back to work to take care of
something.
MR. DORRILL: Just give your name.
MR. SAMPSON: My name's Corwin Sampson. I live in
Collier County and have for about ten years. There are just some
items I've read about in the paper over the past few months, and I
thought that I might have some other ideas on -- to benefit the
community there.
Number one was the dump. It seems to be a problem
that's bothering everybody, and now they're going to spend a lot of
money to do a lot of research to try to find another place to do it.
My idea was that maybe we ought to go offshore eight to ten miles and
burn it and make energy out of it like on an offshore drilling
platform maybe.
CHAIRPERSON MATTHEWS: Best thing for you to do is to
contact Commissioner Constantine. He's heading up a committee -- MR. SAMPSON: Right.
CHAIRPERSON MATTHEWS: -- on the relocation of our --
our landfill.
MR. SAMPSON: Okay.
CHAIRPERSON MATTHEWS: Contact him and talk with him
about that.
MR. SAMPSON: We're buying a bunch of land to
right-of-way on 41 somewhere to -- to Highway 417 That was in the
paper nine months ago or so.
CHAIRPERSON MATTHEWS: I think the state is, isn't it?
MR. SAMPSON: Oh, okay. Public transportation.
CHAIRPERSON MATTHEWS: Yeah.
MR. SAMPSON: And could the -- could the tourist --
tourism tax pay for a disc golf course in one of the public parks?
CHAIRPERSON MATTHEWS: We would need to --
COMMISSIONER NORRIS: No.
CHAIRPERSON MATTHEWS: -- change our -- it can't right
now as the way it -- the way our tourist tax ordinance is currently
established it cannot.
MR. SAMPSON: All right. Unemployed people, people that
have a run-in with the law, so to speak, that owe the county money,
would it -- could -- could a person walk -- work off that money for
the county in their -- on their regular -- with their regular job
skill versus paying -- going and working for somebody else and then
pay the money to the county?
COMMISSIONER HANCOCK: I believe that the judge orders
that it can. Unfortunately, this board can't order it. That would be
a legal decision.
MR. SAMPSON: Okay. Well, I --
CHAIRPERSON MATTHEWS: That's a legal decision.
COMMISSIONER HANCOCK: No. You've already taken a step
that most people never dream of, and that is coming here and asking
questions.
MR. SAMPSON: Well, I --
COMMISSIONER HANCOCK: I commend you for it.
MR. SAMPSON: I read a lot in the paper about it, but I
just happened to be in the courthouse today paying child support but
thought I might say a few things about other things.
I know some people that have been on unemployment draw
employment and work for cash jobs, you know, not that you're going to
pay any unemployment. But those people that are supposed to be
unemployed and are getting paid, can't they give their services to the
county in some respect, maybe a few hours a day like I drive around
just on Marco the other day. I saw eight or ten pieces of concrete
that are cut out, formed up, ready to pour. And I know some people
that bid those jobs on a regular basis. Is it too expensive for the
county to do that themselves?
CHAIRPERSON MATTHEWS: Hmm. Again, that might be
something that we should encourage the probation department or court
administration. And I know we're in some changes.
MR. SAMPSON: I don't know who to talk to about it.
CHAIRPERSON MATTHEWS: Yeah. But it's possibly
something that, Mr. Dorrill, you could -- you could see if that's
available even. I -- I don't know whether it is.
MR. SAMPSON: I'm just a little nervous. This is my
first time for this.
CHAIRPERSON MATTHEWS: You're doing fine.
MR. SAMPSON: The bridge too, the bridge is -- over the
Gordon River, most of the people that are going to use that bridge
today, what is it? To work and back? Or why can't they like put --
like in the big cities, they put another highway on top of one such as
Highway 41. Instead of building another bridge that's going to cost
quite a bit, can they just do that with a bypass or something down the
median?
COMMISSIONER HANCOCK: Well, the problem is if you have
four lanes and you put four on top of it, now you have eight lanes.
Well, those eight lanes have to come together eventually somewhere,
and I --
MR. SAMPSON: Like a crosstown expressway, so to speak.
In downtown Naples you can get on it and go from there to 951 and 41 I
suppose non-stop or somewhere in between.
CHAIRPERSON MATTHEWS: Yeah. We do have eventual plans
in our -- MR. SAMPSON: All right. Well, growth management and
all those --
CHAIRPERSON MATTHEWS: In our road construction plan we
do have eventual plans that Immokalee Road and 951 will become a
bypass over time.
MR. SAMPSON: All right.
CHAIRPERSON MATTHEWS: But it requires money.
MR. SAMPSON: Yeah. Well, there's a lot going to that
bridge I suppose.
CHAIRPERSON MATTHEWS: Yeah.
MR. SAMPSON: And -- oh, yeah. By the way, the sand
that they're -- there's a place in -- I don't know if this is in
Naples a lot, but on Marco Island there's a couple of condominiums
that have problems with the sand washing up against their building.
They can't even use their docks. And that's all beach -- sand that's
washed in off the beach. Why can't they take that sand and put it
back on the beach instead of going out there and dredging up more?
CHAIRPERSON MATTHEWS: Probably because we need 1 -- 1.3
million cubic yards.
MR. SAMPSON: Well, just a question.
COHMISSIONER HANCOCK: That's a good idea. There just
isn't enough of it in one place.
CHAIRPERSON MATTHEWS: Good idea. There's not enough of
it.
MR. SAMPSON: Well, there's no reason why -- like
someone -- I think there was an article in the paper, some man saying
that they could barge it there in some instances, but I don't know the
details on that.
CHAIRPERSON MATTHEWS: Okay.
MR. SAMPSON: I guess that's it.
CHAIRPERSON MATTHEWS: Well, thank you very much.
COHMISSIONER HANCOCK: Well, thank you.
CHAIRPERSON MATTHEWS: Good ideas.
Item #13A2
PETITION A-95-3, JOHN D. HUHPHREVILLE OF QUARLES & BRADY REPRESENTING
MR. 7 MRS. WILLIAM GIBSON REQUESTING AN ADMINISTRATIVE APPEAL OF THE
PLANNING SERVICE DIRECTOR'S ADMINISTRATIVE INTERPRETTATION 1-94-4
REGARDING THE REQUIRED BUILDING SETBACKS FOR BEACHFRONT PROPERTIES
WITHIN THE HIDEAWAY BEACH PUD FOR PROPERTY DESCRIBED AS LOT 14, BLOCK
1, HIDEAWAY BEACH, MARCO ISLAND, FLORIDA - APPEAL DENIED
Hr. Cuyler.
HR. CUYLER: On the next item --
CHAIRPERSON MATTHEWS: Yes.
MR. CUYLER: -- whenever you get to it.
CHAIRPERSON MATTHEWS: I'm sorry?
MR. CUYLER: Are we at the --
CHAIRPERSON MATTHEWS: We are at the next item which is
13 -- what is it? It's so bad I -- 12 -- 12-B.
COMMISSIONER MAC'KIE: 2.
CHAIRPERSON MATTHEWS: C. What is it? 13-A-2, petition
A95-3.
MR. CUYLER: Correct. Madam Chairman, the way that I
would expect this to go is we will swear everyone at the same time.
In an abundance of caution, anyone that is contemplating any testimony
in this will be sworn one time by the court reporter. We will go
through our disclosure process. Obviously we're going to either need
all the commissioners here or all the commissioners to do that.
Staff will then make its presentation. The appellant,
Mr. Gibson's representatives, will make an opening and then present
their case. I believe then that the Vasey representatives will make
an opening and will make their case. Other members of the public will
speak at that time. And then I assume both staff and the appellant
will reserve time for rebuttal if necessary.
CHAIRPERSON MATTHEWS: Okay. Ready to go?
MR. CUYLER: So if we can start, probably the first best
step would be to have the court reporter swear everyone in at one
time.
CHAIRPERSON MATTHEWS: Okay. If all those people who
are going to give testimony today will stand, and the court reporter
will swear you in.
THEREUPON,
ALL PROSPECTIVE WITNESSES,
having been first duly sworn, upon their oaths, testified as follows:
MR. CUYLER: Then we go through the disclosure process
according to the resolution which will include any oral communications
or written communications that have been made to the Board of County
Commissioners regarding this matter. And this is not the PUD
hearing. This is the --
CHAIRPERSON MATTHEWS: The appeal.
MR. CUYLER: This is the appeal.
CHAIRPERSON MATTHEWS: Okay. Why don't we start with
Commissioner Mac'Kie. Disclosure.
COMMISSIONER MAC'KIE: I have gotten correspondence from
a multitude of people who live on Marco Island, all of which I've
responded to saying that I'd make my decision based on what I hear at
the public hearing. And other than cocktail party conversation about
that Hideaway Beach problem, I've had no discussions with anybody
about this matter.
CHAIRPERSON MATTHEWS: Commissioner Constantine?
COMHISSIONER CONSTANTINE: Don't know the first thing
about it. No. Like all of you, I've -- I've got a little bit of
correspondence. But I suspect also like all of you, I will base my
decision solely on what's gone on here today and anything that we may
have taken up in this forum in the past.
MR. CUYLER: And I understand from Miss Filson that the
correspondence is going into a central file. Any member of the public
or any other person that wants to see that, that's available to them.
CHAIRPERSON MATTHEWS: Commissioner Norris.
COHMISSIONER NORRIS: I've had several written as well
as oral communications from both sides of this issue. I intend to
make my decision based on the evidence that's presented to me today.
CHAIRPERSON MATTHEWS: Commissioner Hancock.
COHMISSIONER HANCOCK: I have received, other than the
eight today, around six pieces of correspondence in addition to this
all against the matter from residents of Hideaway Beach.
In addition, I've had two conversations with
representatives of the Gibson and one conversation with
representatives of the Vaseys, all general in nature lacking
specifics, and I will base my decision on what is aired here today.
CHAIRPERSON MATTHEWS: Okay. I, too, have received a
number of letters, some of which in their early going. I've read --
most I've -- have come in in the last three weeks, and I've been out
of town and not read them at all. But I, too, will be basing my
decision on what I hear today in the public presentation and the
public hearing. I don't think I've had any conversations with anybody
about this.
MR. CUYLER: At this point I think we should also
provide an opportunity, anybody that wants to make any objection to
the disclosure to the Board of County Commissioners can do so now at
the podium. If not, then we can proceed.
CHAIRPERSON MATTHEWS: Is there -- anybody have an
objection to the disclosure?
There are none. Then we'll proceed.
Mr. -- Mr. Arnold.
MR. ARNOLD: For the record, Wayne Arnold of your
planning services staff. This petition was originally to come to you
on MAy 2 of this year. It is now coming back to you. And again, I'd
like to teenforce that this is not the advertised PUD amendment that
you will be hearing August 8 or it's advertised for August 8. This is
solely to determine whether or not an interpretation that I made
regarding lot 14, block 1, Hideaway Beach has a required 50-foot rear
yard setback to the beach or a zero-foot setback to the beach.
And what I'd like to do is go through some information
for the record and maybe help frame the entire situation. There's
going to be a lot of testimony from both sides that I think additional
information will be brought out at its appropriate time. And in that
I can be fairly brief. We can get the other experts up, and we can
have rebuttal which I'm sure I will be asked numerous questions.
To start I'd like to -- to state that county in
rendering its interpretation on February 23, 1995, determined that a
50-foot building setback is required from the erosion control line
along Hideaway Beach. And the erosion control line is a -- is a
controlling line that I'd like to explain in a little bit more
detail.
But for the purposes of the present, I'd like to just
state that our interpretation that the erosion control line, which is
also the property boundary, shall require a 50-foot setback from that
line. The subject lot has a building structure partially completed
that when completed would be at the property line or zero foot from
that erosion control line.
I'd like to read for the record the PUD language that
frames the setback requirements for beach-front lots in Hideaway
Beach. It's one small paragraph but certainly says a lot. It says a
beach setback line and/or coastal construction setback line has been
established for the protection of the homeowner as located on the
record plat. This line marks the principal building setback line.
Accessory structures except where setback -- except where the coastal
setback line is already established can extend a maximum of 50 feet
toward the water except where such extension shall bring such
structures except for boardwalks leading to the beach closer than 50
feet from the rear lot line.
In framing our interpretation, this specifically would
reference accessory structures being no closer than 50 feet to the
rear property line. It was our determination that the intent was
clearly that no other structure be within 50 feet from that rear
property boundary, not just accessory structures would include --
which would include things such as pools, screen enclosures, and the
like.
In coming to that conclusion, we looked also at our land
development code and find no other reference that allows a principal
structure to be located closer to a property line than it would
normally be for an accessory structure. Typically accessory
structures are permitted closer to a property line.
We also then have to get to the determination of where
that property boundary is. When the state established an erosion
control line as part of the beach renourishment project for Hideaway
Beach, that new erosion control line became the property line rather
than the previous property line which would have been a mean high
water line determination.
And I believe that information is well established on
the plat of record which was recorded in 1979 with Collier County.
And on that I would refer to the language that sets out the distances
shown on these varying control lines stating that the dimensions are
to the approximate shoreline as of September 1978. The actual rear
lot boundary is determined as the mean high water line. And in that
the mean high water line for beach-front properties would be the
controlling point between upland owners and the state of Florida.
I'd like to go over to our exhibit and maybe explain
some of these lines where the structure currently sits and go ahead
and frame that if I could.
Again, I'm not sure if you can see over the exhibit
that's posted there, but what I have displayed is the entire 29 lots
that are fronting on Big Marco Pass or Hideaway Beach. Those 29 lots
are controlled by a series of lines which the two most important are
the erosion control line which is now the property boundary for all
those lots. The other controlling line is called the building control
line, and that line is shown as the -- the dashed bold green line. I
don't think you have a color exhibit with your agenda packet. But on
page 2 or 3, depending on which packet you have, that should show a
smaller exhibit of the northern five or six lots on Hideaway Beach. I
think it may be a little easier to see.
But what we have is the green dashed line representing
the building control line. That line was used in lieu of a coastal
construction setback line which is used for Gulf-front properties.
The blue line that I have shows the erosion control line that was
established during beach renourishment. The bold red line that I have
reflects a 50-foot setback requirement from that erosion control
line.
A couple things need to be pointed out relative to this
part of Hideaway Beach, and that -- that involves the original
building control line that was part of the original plat for Hideaway
Beach. And that is it varies between 50 feet and 100 feet, depending
on where you are on the beach. The northern five lots have less than
a 100-foot setback at that time to the then mean high water line. The
northern 4 lots reflected a 50-foot setback from that mean high water
line. On lot 13 that line went from 50 to 70 feet beginning on lot 12
and running south along Hideaway Beach. That original building
control line was established at 100 feet from the then mean high water
line.
COHHISSIONER HAC'KIE: While -- while you're changing
mikes I want to ask you a question. The -- which is the line that our
code measure -- measures setbacks from?
MR. ARNOLD: I think that's part of the debate that will
take place today. It's my opinion that the Hideaway Beach PUD, since
the original contemplation there was for mean high water line, that
was the original property line. The new property line that governs
all upland property owners there is the state's erosion control line.
State statute says that a landowner shall not retain any rights from
that point seaward.
COHMISSIONER HAC'KIE: The erosion control line.
MR. ARNOLD: That's correct. So that's where we would
apply our setback. That also is evidenced in our land development
code. When you read the definition of setback, it lists a series of
applicable lines such as shoreline, bulkhead line, access easements,
shoreline, things of that nature. But it always says the more
restrictive line shall be the point of measurement. COHMISSIONER HAC'KIE: Okay. Thank you.
MR. ARNOLD: In this particular case we have --
CHAIRPERSON MATTHEWS: I have one more question --
MR. ARNOLD: I'm sorry.
CHAIRPERSON MATTHEWS: -- on -- on this same thing. Is
the state who defined the erosion control line?
MR. ARNOLD: Yes.
CHAIRPERSON MATTHEWS: State of Florida?
MR. ARNOLD: That was adopted locally by resolution by
the Board of County Commissioners at the time, but the state's
internal improvement trust fund I believe is the entity that's
responsible for establishing that line. And it's made up of -- that
line, I should tell you, is representative of the approximate eroded
shoreline in Hideaway Beach in about 1988 which was the height of
beach erosion. That new erosion control line roughly approximates
that line.
MR. CUYLER: I'm not going to interject myself in these
proceedings too much, but it's important you understand what the
erosion control line is. As the shoreline eroded and eroded, there
came a point in time when there was going to be beach renourishment.
At that point in time when beach renourishment occurred
-- and I'm sure both sides may address this -- the -- the state comes
in and establishes a line called the erosion control line. All of the
sand that they put on the beach seaward of that is state property. In
other words, that doesn't accrue to the property owner. His property
line is then defined as the erosion control line. And every -- if
there's any sand put on the landward side of it, that goes to the
property owner. But that erosion control line, as -- as Wayne has
interpreted, became the new property line for the owners that did not
exist prior to that time.
COHMISSIONER MAC'KIE: And the property line's what we
always measure setbacks from.
MR. CUYLER: That will be the subject of the
interpretation. But I thought it was important for you to understand
exactly what that erosion control line is.
CHAIRPERSON MATTHEWS: What was the date that the beach
was renourished in this area?
MR. ARNOLD: The date --
CHAIRPERSON MATTHEWS: Was it 19907
MR. ARNOLD: I can find the specific date. It was
roughly 1990.
CHAIRPERSON MATTHEWS: 19907
MR. ARNOLD: (Mr. Arnold nodded head.)
CHAIRPERSON MATTHEWS: Okay.
MR. ARNOLD: If I can I'll go back to the exhibit and
point out a couple of things that are unique to this portion of
Hideaway Beach because of the establishment of the erosion control
line which frames the appellant's argument but I think also puts into
perspective part of the staff's argument.
If you look at the northern five lots, the situation
that we have once the erosion control line was established, it
essentially shifted the property line landward of the old point to
which structures could be placed. And that line varies from lot to
lot in a sense because that erosion control line isn't exactly
parallel to the old line. But roughly ten feet landward of the old
building control line is now the property line. You could use the
argument had this property owner constructed their home in 1979, they
could have been built forward of their current location some ten
additional feet.
And I think that's important because these -- these five
northern lots are unique in that respect that the two lines cross, and
now the new property line is landward not only of the old land -- not
only of the old property line by some 60 feet, but it's also landward
of the old building control line which was their setback line until
1990 when the erosion control line was established.
CHAIRPERSON MATTHEWS: Commissioner Hancock.
COHMISSIONER HANCOCK: Wayne, I'm going to ask two
rather simple questions. We have a PUD that says you must be 50 feet
from the property line; is that correct?
MR. ARNOLD: It says that you -- it says that the
setback for accessory structures specifically should be -- no -- no
accessory structure should be closer than 50 feet to the rear property
line.
COHMISSIONER HANCOCK: Okay.
MR. ARNOLD: Part of our interpretation then said if no
accessory structure can be located within 50 feet of the rear property
line, then no principal structure should surely be located within 50
feet of that property line.
COHMISSIONER HANCOCK: Okay. And that property line as
identified here or as identified in the PUD was the mean high water
line.
MR. ARNOLD: The original --
COHMISSIONER HANCOCK: The original.
MR. ARNOLD: -- PUD -- there was no erosion control
line --
COHMISSIONER HANCOCK: Right.
MR. ARNOLD: -- in effect until 1990. The original PUD
was developed in 1979. We now had -- at that point in time for every
beach-front property owner, the mean high water line was the property
line. That line obviously shifts, and it shifted almost 60 feet at
one point because of the erosion. The state comes and says the
highest point of wave and erosion action was at this location. They
averaged. They did many mean high water line surveys and said, you
now have an erosion control line.
COHMISSIONER HANCOCK: So now we then -- okay. That's
kind of the PUD side, and I'm sure we'll talk about that more.
The second question is the erosion control line, the
state set that line in '88, and is it the state that says you have to
be 50 feet back from the erosion control line?
MR. ARNOLD: The state statute, chapter 161, does have a
provision requiring a 50-foot setback from the erosion control line.
In the following paragraphs in that part of the chapter, it gives
exemptions for properties that are on inlets, passes, and the like.
This is on Big Marco Pass. This is not fronting the Gulf of Mexico.
They would qualify for an exemption. That would be our opinion.
COMMISSIONER HANCOCK: Okay.
MR. ARNOLD: Further in that same chapter there's
another exception granted to communities who have adopted local
coastal construction standards. We have a CCSL line. It's not
applicable in this case. On the subject lot we're some thousand feet
away from and landward of the coastal construction line. It runs
parallel to the Gulf of Mexico, does not come into the pass but runs
directly up to Keewaydin Island, so it never comes into the pass.
In lieu of that we have -- in 1979 we had a building
control line. Today we have an erosion control line that satisfies
that purpose for establishing beach-front. COMMISSIONER HANCOCK: Okay.
COMMISSIONER MAC'KIE: My -- my question was the date
the permit was pulled for the house, just the year.
MR. ARNOLD: 1994, roughly -- September 20 I believe was
the actual issue date. It was applied for the prior month.
CHAIRPERSON MATTHEWS: Any other questions at this
point?
Do you want to continue?
MR. ARNOLD: I can wrap up briefly. I don't have that
many more points to make for the record at this point, but I would
like to summarize that we have taken and our interpretation would
require a 50-foot setback from the erosion control line. We know from
that number that of the 13 structures that are either built or under
construction on Hideaway Beach, 11 of those structures do not meet the
50-foot setback requirement.
COMMISSIONER MAC'KIE: Of how many?
MR. ARNOLD: Eleven of thirteen.
MR. ARNOLD: Some ever so slightly; some don't meet it
by many feet. That, again, can go back to the requirement prior to
1990 where you had to be back a certain distance from mean high water
line. That line changed on a regular basis because of the erosion,
and the erosion occurred at different rates at different parts of
Hideaway Beach. So we have structures that don't all approximate the
50-foot setback line.
COMMISSIONER CONSTANTINE: Mr. Arnold, you said some are
by a few inches, some are by several feet. What would be the maximum
number of feet on any of these? Do you know that?
MR. ARNOLD: If you'll indulge me for a moment, I can --
I can get that. I do know we have one structure that's within eight
feet of the erosion control line. So I can safely say we have a
42-foot encroachment on one structure.
COMMISSIONER CONSTANTINE: Okay. That's fine. Thank
you.
COMMISSIONER HANCOCK: That's a completed structure?
MR. ARNOLD: That is a pool and pool deck on a lot on
the south end of Hideaway Beach, yes.
CHAIRPERSON MATTHEWS: So it's a -- it's a pool. It's
not a foundation of a home.
MR. ARNOLD: None of these affect -- other than the
Gibson house under construction today, that setback issue does not
violate the actual principal structure, but they all would be in
violation of any 50-foot encroachment within the property line.
CHAIRPERSON MATTHEWS: Okay. Commissioner Hac'Kie, you
had another question?
COHMISSIONER MAC'KIE: That was my question, house or
accessory.
CHAIRPERSON MATTHEWS: I -- I want to try to recap what
you've said because I want to make sure that I understand this. The
erosion control line was established by the state and adopted by the
county?
MR. ARNOLD: That's correct.
CHAIRPERSON MATTHEWS: Is that correct? And that in
1979 the mean high water line was the property line. MR. ARNOLD: That's correct.
CHAIRPERSON MATTHEWS: And that over the subsequent 11
or 12 years, 60 feet of beach eroded away? MR. ARNOLD: (Mr. Arnold nodded head.)
CHAIRPERSON MATTHEWS: And beach renourishment occurred,
and the state came and established the erosion control line as the
eroded mean high water line. They're one in the same.
MR. ARNOLD: That would be a correct summary.
CHAIRPERSON MATTHEWS: Okay. That's what I want to make
sure of. Okay.
MR. ARNOLD: A couple of other points I might make
related to that would be that the erosion was so extensive which my
executive summary goes into this in more detail, but the erosion was
so critical at a point in time that staff came to you or the Board of
County Commissioners at that time concerned about the issuance of
building permits along Hideaway Beach. A moratorium was placed into
effect for Hideaway Beach properties until staff could come back with
an assessment of how to handle the situation, at which time they
directed staff to go forward and amend the Hideaway Beach PUD to
establish a 50-foot setback from the eroded shoreline of Hideaway
Beach. That PUD amendment was never effected.
CHAIRPERSON MATTHEWS: It was never effected?
MR. ARNOLD: No PUD amendment was brought forward to
change that setback.
CHAIRPERSON MATTHEWS: Okay. So it was directed to be
done, but for one reason or another it didn't get done. MR. ARNOLD: (Mr. Arnold nodded head.)
CHAIRPERSON MATTHEWS: Okay. Commissioner Hac'Kie?
COHMISSIONER MAC'KIE: I just wondered if you could tell
us between 1990 when the erosion control line was adopted and the --
in '94 when the Gibson permit was pulled, were -- were other principal
structure permits pulled in that PUD?
MR. ARNOLD: The records that I have would indicate
three other structures, including the Gibsons', constructed between
1990 and 1994. I will tell you --
COHMISSIONER MAC'KIE: And their setbacks were measured
from --
MR. ARNOLD: One setback is appropriate. It's some 60
feet from the -- from the control line.
COHMISSIONER MAC'KIE: Okay.
MR. ARNOLD: One structure is in violation. The number
-- I have these numbers in my file, but it's roughly 13 feet. It's
roughly 37 feet from the erosion control line.
COHMISSIONER HAC'KIE: And -- and I would want to know
when that permit was issued roughly if that's something you can find
out eventually.
MR. ARNOLD: Sure, I can do that.
COHMISSIONER HAC'KIE: And then this one. Those are the
three?
MR. ARNOLD: I believe the date was 1992 on that
particular permit. I can certainly clarify that. But we -- of the
three permits, this one is certainly the one that it's closest. And
again, our interpretation would establish the structure to be 50 feet
or the minimum setback to be 50 feet. Again, the structure under
consideration today and the subject of this interpretation has no rear
setback which, again, staff's argument there is that in no way did the
PUD ever contemplate a zero setback from the property line. It always
had a minimum of 50 feet from the rear property line.
COHMISSIONER HAC'KIE: And -- and my last question, on
that '92 permit that was issued in 37 -- that's 37 feet, do you know
if -- I understand -- okay. No, I think I've got it. The erosion
control line doesn't -- hasn't moved at all since 1990. MR. ARNOLD: That's correct.
COHMISSIONER HAC'KIE: So the measuring line is the same
for that one as for this one.
MR. ARNOLD: That's correct.
COHMISSIONER HAC'KIE: Okay.
CHAIRPERSON MATTHEWS: Other questions?
Do you want to proceed?
COHMISSIONER MAC'KIE: I'm ready.
MR. ARNOLD: I believe that's all the points I had to
make at least to open the record. Mr. Cuyler looks like he needs to
interject something here.
MR. CUYLER: Madam Chairman, Mr. Arnold's documentation
will go into the record. And I think the attorneys -- any attorney
that is representing a client and is producing information for the
board, you should probably say whether that information is going into
the record or not so we'll have that as part of the transcript.
COHMISSIONER MAC'KIE: Boxes and boxes.
MR. CUYLER: Well, I'm not sure how slides and such are
going to fit into this, so everyone needs to be specific on their
materials.
MR. ARNOLD: If you have any other questions, I'll be
happy to answer those now. You may want to go ahead and hear from the
appellant and --
CHAIRPERSON MATTHEWS: Okay. Now, the -- the appellant
in this case is Mr. Gibson?
MR. CUYLER: Correct.
MR. ARNOLD: That's correct, representing Mr. Gibson.
CHAIRPERSON MATTHEWS: Okay. Commissioner Hancock.
COHMISSIONER HANCOCK: Again, just for my benefit trying
to encapsulate this so I can understand it, was it your interpretation
then that since this is a -- an inlet or a pass, this particular
structure was exempt from the 50-foot setback requirement from the
erosion control line?
MR. ARNOLD: From the state's required 50 feet.
COHMISSIONER HANCOCK: Okay.
MR. ARNOLD: It's my interpretation that the language
that currently exists in the PUD would also require a 50-foot setback
from that property line regardless of that being an erosion control
line or some other means of determining a property line. In this
particular case, it happens to be the erosion control line that
governs the property boundary.
COMHISSIONER HANCOCK: Okay. But the property is not
set back 50 feet from that.
MR. ARNOLD: That's correct. The building permit was
issued for it to be zero feet from that line. The home, as you've
probably seen photographs in your exhibit books that were provided, is
partially under construction. It has a floating slab on pilings.
Some of the pilings are up. Elevator shafts have been installed. I
think there's an exhibit that lists an approximate construction value
to date.
COMHISSIONER HANCOCK: Okay.
CHAIRPERSON MATTHEWS: Thank you. The -- the
appellant.
MR. DOYLE: Good afternoon. Madam Chairman, members of
the board of zoning appeals, I'm Robin Doyle of Quarles and Brady.
I'd like to begin if I could with just a couple of introductions so
that you will know who is here and who will be appearing before you.
Mr. --
CHAIRPERSON MATTHEWS: Mr. Doyle, before you get
started, can you give me some idea of how -- what length of time
you're anticipating?
MR. DOYLE: We have, Madam Chairman, I believe six
witnesses including Mr. Arnold who's -- a portion of the questions we
would ask him certainly have already been covered in his
presentation. We do have a few additional questions to ask him. I
would suspect that we -- that the presentation of those witnesses will
take substantially in excess of an hour, perhaps closer to two hours.
CHAIRPERSON MATTHEWS: For six witnesses, two hours.
COMMISSIONER MAC'KIE: I guess the five-minute limit
doesn't apply to witnesses? Wishful -- CHAIRPERSON MATTHEWS: Is -- is that correct, Mr.
Cuyler?
MR. CUYLER: Was that a question for counsel?
COMMISSIONER MAC'KIE: That was a question.
CHAIRPERSON MATTHEWS: That's a question for counsel.
COMHISSIONER MAC'KIE: Think carefully, Counsel.
MR. CUYLER: No, your five minute doesn't apply, but the
chair does have the discretion to run the meeting and to run it
efficiently. I think you need to give them a reasonable -- quote,
reasonable opportunity to present their evidence. You're the judge of
that.
CHAIRPERSON MATTHEWS: Okay. I'm going to try not to
interfere, but if I see that you're getting bogged down, I'm going
to.
MR. DOYLE: I would be happy to be rescued from being
bogged down.
CHAIRPERSON MATTHEWS: Okay.
COHMISSIONER CONSTANTINE: I under --
CHAIRPERSON MATTHEWS: Commissioner Constantine.
COHMISSIONER CONSTANTINE: I was just going to say I
understand you need to get certain things on the record and so on, as
do any number of the attorneys sitting in the room. But I don't
relish the thought of sitting for six hours for that purpose. So
hopefully we can get to that point.
COHMISSIONER HAC'KIE: Make a written record.
COHMISSIONER CONSTANTINE: Yeah.
MR. DOYLE: We understand that. And, in fact, we had
listed some 14 witnesses. We have pared that down. Many of them,
although they are here, we do not intend to call unless there is some
rebuttal testimony necessary. We --
CHAIRPERSON MATTHEWS: And we -- and we are going to
limit all of the testimony from witnesses today to only the appeal.
MR. DOYLE: That is -- that is certainly our intention.
CHAIRPERSON MATTHEWS: Okay.
COHMISSIONER CONSTANTINE: And, Mr. Cuyler, a little --
a little something I learned while watching our friends in Washington
last week how many times people have written things that they'll turn
in and just kind of give a little verbal summary but the written
record is accepted into the record. Perhaps we could do that in the
interest of time today as well.
MR. CUYLER: I suspect you may see some of that today.
CHAIRPERSON MATTHEWS: Okay. Mr. Doyle.
MR. DOYLE: If I could introduce Mr. William Gibson who
is here who's the appellant, also presenting to you today John
Humphreville of our firm. He's here and will be talking to some of
the witnesses as will Bruce Anderson of Young, van Assenderp, and
Varnadoe. The witnesses we will introduce to you as they -- as they
testify.
Your attorney has indicated to you the procedures that
he would like to follow. We certainly have no problem with that. We
would expect to offer possibly some rebuttal evidence after the other
parties and general public have had an opportunity to present matters
to you. And then we would make our closing remarks at that time.
Madam Chairman, it is our intention as you suggested to
limit ourselves to the appeal today. We are here to appeal both the
interpretation of the ordinance as described to you by Mr. Arnold and
the resulting stop work order that was issued by the county.
We're going to present evidence to you of -- of what the
setbacks for Hideaway Beach are today and what they were at the time
Mr. and Mrs. Gibson's building permit was issued.
We do not intend to put on any evidence of what the
setbacks ought to be or should be. That is a matter for this board to
consider only after you receive a recommendation from the Collier
County Planning Commission.
The evidence that we're going to present to you will be
relatively simple and straightforward. First, we believe that the
present interpretation described to you by Mr. Arnold is simply wrong
and it cannot be sustained without amending the PUD.
Second, we believe that the staff interpretation cannot
be enforced against Mr. and Mrs. Gibson because of the legal doctrine
of estoppel. That is, the county took action which the Gibsons relied
upon. They spent substantial amounts of money only to be told later
that the county had made a mistake and that they would have to suffer
because of that mistake.
Mr. Arnold spent some time with you going over the
jurisdictional lines. Mr. Cuyler mentioned them. We do agree with
Mr. Cuyler. These are extremely important lines. So without
belaboring the point, I would like to talk just a little bit about the
jurisdictional lines.
MR. CUYLER: Mr. Doyle, there's a handheld mike that Mr.
Arnold can hand to you over there if you'd like to use that.
MR. DOYLE: This is Exhibit 8 that we will -- in the
exhibits that we'll be presenting to you. And, Mr. Cuyler, we do have
a notebook of exhibits for each of the commissioners. If we might
give them to them at this time, that might facilitate matters. And we
would ask that the record include our Exhibits 1 through 26.
CHAIRPERSON MATTHEWS: Okay.
COHMISSIONER NORRIS: We have those.
CHAIRPERSON MATTHEWS: We have those books already.
MR. DOYLE: All right. If we look -- now, your Exhibit
8 unfortunately does not have this exhibit because it's large. But
this exhibit shows a mean high water line. It also shows a building
control line, the erosion control line, and the 50-foot setback that
Mr. Arnold talked about.
First let's talk about the mean high water line. The
mean high water line in common law was always the boundary of the
property. The landowner owned to the mean high water line and not
behind -- not beyond that. And that is, in fact, the law today except
where there has been some change such as the establishment of the
erosion control line that you heard about. The problem with that
being a property boundary is that it fluctuates. So if you have a
storm that piles up sand on the beach, the landowner has more
property. If you have a storm that removes sand from the beach, the
landowner has less property.
When Hideaway Beach was platted in 1979, it was decided
that it was a good idea to establish the building control line.
That's the green line that you see here. The building control line
was a set line beyond which the property owners were not allowed to
build in accordance with the PUD.
Now, this line was -- was established originally by
measuring approximately from the mean high water line. The mean high
water line that is shown on this chart in pink is not the mean high
water line that existed in 1978 and 1979 when they established the
building control line, but that mean high water line was at this end
of the beach about 50 feet out from the building control line and at
this end of the beach about 100 feet out from the building control
line. So this was established as the line beyond which no one could
build. At the same time, no one could build closer than 50 feet to
the water.
So there was -- there were two restrictions. One, you
had to be behind the building control line, and according to the PUD
you also could not be closer than 50 feet to the then existing mean
high water line.
Of course, then came beach renourishment, and the -- the
erosion control line was set and, as you've been told, was set as the
new property boundary set in accordance with the statute.
Now, the PUD has been amended many times over the years,
but the setback requirements that are in the Hideaway Beach PUD have
never been amended. They are the same today that they were when this
PUD was established in 1979.
As Mr. Arnold told you, in -- in 1986 there was a
recommendation that the setback requirements be changed. The board
considered that at that time, gave some instructions to staff to
return with an amendment. But it was not done, and the PUD was not
amended, and the setback was not changed. So they have not changed at
all since 1979.
What has changed since 1979 is an additional line has
been added. That's the erosion control line that you've been told
about. In '79 when the plat was established, the mean high water line
was the property owner's rear boundary. And that fluctuated almost
literally with the tides.
But when the state decided that we could do the
renourishment, they said, okay, we'll do renourishment with tax
dollars, but we will not allow that nourishment of the beach to
operate to the benefit of the landowner by increasing the landowner's
land. So we'll establish a line here at approximately where the mean
high water mark is at the time of renourishment. We'll call it the
erosion control line. And despite the fact that the mean high water
line then will move to a different location after the renourishment of
the beach, the property line will not change. So the ECL, the erosion
control line, the new property boundary, was established.
Now, common sense tells us and it is the law that an
owner cannot build on property that does not belong to him. The owner
of land at Hideaway Beach cannot build on state lands. So the ECL,
when it was established, established a new restriction. Regardless of
whether it was 100 feet to the water, you still could not build beyond
the erosion control line.
So at the end of the beach where the erosion control
line is landward of the building control line, even though the
building control line would have allowed -- allowed you to build out
further, in doing so the landowner would be building on state lands.
They are not allowed to do that and cannot build beyond the ECL.
COHHISSIONER HAC'KIE: Mr. Doyle, I'm going to try not
to interrupt, but I'm just wondering if you can refer me to the
section in the PUD that says that the setback is measured from mean
high water.
MR. DOYLE: The section in the code is 4.04.04.
COHMISSIONER HAC'KIE: I see that that's the setbacks.
I'm trying to find where it says measured from.
MR. DOYLE: If we look at the minimum setback section
there, we have to look down to section D under special lots, and we
find that it is lots abutting the beach -- COMMISSIONER MAC'KIE: Uh-huh.
MR. DOYLE: -- which obviously applies to the lot that
we're discussing here. It does not say that there is to be a setback
measured from any location. In fact, what this PUD does is it
establishes a setback line. We don't have to measure from it because
it is the line beyond which you cannot build, and that is the building
control line, the green line on Exhibit 8 here.
COMMISSIONER MAC'KIE: Can I just read it? It says --
it's in D2. It says lots abutting the beach. I just want to make
sure I'm looking at what you are.
MR. DOYLE: Right.
COMMISSIONER MAC'KIE: A beach setback line and/or
coastal construction setback line has been established for the
protection of the homeowner. This line marks the principal building
setback line. And nobody has shown me a line that says it's beach
setback line or coastal construction setback line.
MR. DOYLE: All right. You will hear testimony today
that in the PUD when they refer to the coastal construction setback
line they are referring to the building control line. COMMISSIONER MAC'KIE: The erosion control line.
MR. DOYLE: No, the building control line. Remember
this PUD was done in 1979, long before there was --
COHHISSIONER HAC'KIE: Before an erosion control line.
MR. DOYLE: -- beach renourishment. So what they did
was they established a building control line. The way they arrived at
that line was they set it either 100 feet or 50 feet from the then
existing mean high water.
COHMISSIONER HAC'KIE: Mean high water.
MR. DOYLE: And that was the setback line. We didn't
have to measure it from anything.
COMMISSIONER MAC'KIE: I see.
MR. DOYLE: That was the line beyond which the owners
could not build.
COMMISSIONER MAC'KIE: And is that line -- was it
adopted by the county in any formal action?
MR. DOYLE: Yes, it is in the ordinance.
COMMISSIONER MAC'KIE: That -- that line itself.
MR. DOYLE: Yes, that line is on the plat.
COMMISSIONER MAC'KIE: Okay.
MR. DOYLE: It was adopted as part of the PUD.
COMMISSIONER MAC'KIE: Okay.
MR. DOYLE: Now, beyond this ordinance that I've told
you about and the requirements that are there, in 1992 Bill Lewis from
whom you will hear testimony and who is Mr. Gibson's architect asked
the county staff for clarification of the setback requirements after
beach renourishment and the establishment of the erosion control
line. And you will see today a letter in evidence that says the
setback for Hideaway Beach is the more restrictive of the building
control line, the erosion control line, or 50 feet from the mean high
water line.
So the staff then began requiring -- actually as of 1986
began requiring a current survey to be provided by anyone seeking a
building permit. From the survey the staff could determine that the
proposed construction was more than 50 feet from the mean high water
line. They could see on that survey where the building control line
was and determined that it was behind that. And they could also see
then after 1990 when the erosion control line was established where
that was located to make sure that the construction was landward of
the erosion control line.
So these three lines were taken into consideration by
staff. And there is a letter interpreting this particular PUD by your
county staff and setting those requirements.
In March of 1994 based upon the county ruling on the
setback interpretation, based upon the footprint of the building that
he knew he would be able to build, Mr. Gibson bought lot 14 in block 1
on Hideaway Beach. And you're going to hear testimony today about how
in August of that year he applied for a building permit with a rear
yard setback of zero feet from the property line.
In fact, the cover of your exhibit booklet is a copy of
one of the exhibits which is the application for building permit. And
if we look on the right side near the bottom, you'll see setback from
property line, front, 25 feet, rear, zero feet. That was what was
applied for to the building department. And you'll hear testimony
that that was approved.
In October construction began on this residence. A
neighbor noticed this construction and complained to the county. And
in December of 1994 a stop work order was issued. It was issued for
survey reasons.
There was a resurvey done of the property to make sure
that it complied with the three requirements that I just told you
about. The survey showed that the property did comply, and the county
allowed the work to begin again within days.
The neighbor then tried again to stop the construction,
this time with the state. But he learned that the state had no
jurisdiction of this property because the -- all of the construction
was landward of state lands. It was inside of the erosion control
line.
So he tried again with the county and with the
homeowners' association, received no success with the association.
But this time -- and you're going to hear testimony about this today
-- the neighbor obtained the assistance of a law firm to write a
lengthy letter to the county. The county upon receipt of that issued
a yellow tag or a proceed-with-caution order while they considered the
matter. The reason, it was ostensibly for survey concerns. There was
no indication to the Gibsons that there was any consideration of
reinterpreting the PUD setback requirements or the ordinance
requirements.
But in -- in February of this year, the neighbor got
what he wanted. There was a new interpretation that Mr. Arnold
described to you where he said that construction had to be set back 50
feet from the property line.
Now, I realize that there's been a lot written and said
about this case. There's been a lot in the newspaper. There's been a
lot of talk about violations of the law and terms like unclean hands
and the misleading information that has been attributed to the
Gibsons. The result has been a lot of notoriety for this case. I
appreciate the board's desire to have this matter decided on the facts
that are presented here. We don't want to try this matter in the
newspaper. And since it is a quasi-judicial proceeding, we must
present facts to you in your role as the judges.
As a matter of fact, the only interpretations that the
county ever issued regarding a setback for Hideaway Beach were in
accordance with the Gibsons' position until the interpretation issued
by Mr. Arnold in February of this year. No landowner has ever been
required to build 50 feet behind the erosion control line. That has
never been a requirement of the county.
I think that what the board will see and what the
evidence will show is that the houses that are built along Big Marco
Pass here are oriented across the pass with the exception of one. The
house that is adjacent to the Gibsons' property is oriented so a
portion of their view is across the Gibsons' land.
That landowner has filed a suit against the Gibsons and
against others in an attempt to protect his rights, whatever they may
be, to view across the Gibsons' property. But that is a matter for
the courts and not for this board.
The issue for this board is what is the rear yard
setback line for the Hideaway Beach homes according to the PUD. What
is required by law? And the facts will show -- that we will show to
you today show that the county previously interpreted the ordinance
without requiring a 50-foot setback from the erosion control line,
that no building permit has been issued since renourishment requiring
a 50-foot setback, and that a number of lots have been built upon and
if this ordinance or if this interpretation of the ordinance is
allowed to stand as Mr. Arnold indicated to you, 11 of 13 and perhaps
even more -- perhaps even 13 lots there will be non-conforming. And,
therefore, if they were destroyed by fire or storm, they could not be
rebuilt in their present configuration.
In conclusion, I would point out to the board that we
believe that the testimony and the documents will show the court that
Mr. Arnold's interpretation is incorrect; that if the setback should
be 50 feet from the erosion control line, then the board must change
the zoning to make it so after receiving a recommendation from the
planning commission but that there is no such setback at this time.
We also believe that the testimony and the documents
will show that even if Mr. Arnold were correct in his interpretation,
that interpretation is new, it is a change from what has happened
previously, and it occurred after the Gibsons obtained their permit,
after they began construction. They relied on the county opinion.
They relied on the county permit. They relied on the county's lifting
of the stop work order in December of 1994. They have spent
substantial sums. And, therefore, the county is estopped from
stopping work at this time.
Now, at this time we would like to present a number of
witnesses to you --
COMHISSIONER MAC'KIE: Mr. Doyle, could I -- could I ask
a question of Mr. Cuyler? MR. DOYLE: Yes.
COMMISSIONER MAC'KIE: Is the estoppel argument an
argument for this board or for the court?
MR. CUYLER: Normally an estoppel argument can only be
brought -- it's normally brought as a defense to an action. In this
case if we were to say, Mr. Gibson, you may not proceed, then the
action could possibly come from that side with a claim of estoppel.
It is normally something that is found by the court.
I will tell you that I have always advised the board
that if you feel something is clear enough in terms of a claim, then
it may not be the subject of this proceeding in terms of your answer.
But if you find that some claim is out there and you find that it has
substantial merit, I've never indicated to the board you have to go to
court and -- and let a judge tell you something is right or wrong.
You have the ability as a client, just like any client does, to make a
business decision along that vein.
COMMISSIONER MAC'KIE: But the appeal is based on what's
the setback.
MR. CUYLER: Correct.
COMMISSIONER MAC'KIE: I mean, I understand the first
question, and that seems clearly our -- our bailiwick. And then what
your answer is, if I understand it on the estoppel question, is it's a
legal argument, but like any other client or anybody, if you think
that they're estopped, you have the right to say they are estopped, we
are estopped.
MR. CUYLER: Correct. You could either say, if you
think that's an argument, go to court and argue it, or you could
say --
COMMISSIONER MAC'KIE: Makes sense.
MR. CUYLER: -- we think you've proven that to us, and
we really don't want to go to court, but we need to make a decision on
that of some sort.
COMHISSIONER MAC'KIE: Okay.
MR. DOYLE: Commissioner Mac'Kie, if I may add to that
and point out to the board that we did file actually two separate
appeals in this matter. One was the appeal of the interpretation.
But the second was the appeal of the stop work order or the red tag
that was issued. They were filed separately, and they have been
consolidated for this hearing today.
And it is the latter appeal, the appeal of the stop work
order, that causes us to say, but you as an appellate board for your
building department must make the final decision. And we believe that
we probably must bring it to you first before taking it to the court.
We are giving this board an opportunity to correct what we believe was
an incorrect decision.
COMMISSIONER MAC'KIE: Okay.
MR. DOYLE: I think that the witnesses we'll bring
forward now will put all of this evidence in proper perspective for
the board as I've outlined to you. Our first witness that we will
call at this time is --
CHAIRPERSON MATTHEWS: Excuse me, Mr. Doyle.
Commissioner Hancock has a question. MR. DOYLE: Yes, sir.
COMMISSIONER HANCOCK: Mr. Doyle, a quick question.
Your Exhibit A which is the Hideaway Beach existing conditions map --
MR. DOYLE: I'm sorry. Which exhibit?
COMMISSIONER HANCOCK: Exhibit A, Alpha.
MR. DOYLE: That is -- there is a numbered tab.
COMMISSIONER HANCOCK: I'm sorry. It would be 17.
MR. DOYLE: 17-A?
COMMISSIONER HANCOCK: -- shows a 50-foot -- 50-foot
setback which is staff's interpretation regarding Gibson residence.
And if your lines are correct, sir, that 50-foot -- foot setback line
transects the principal structure of at least 3 what I assume are
homes, lots 12 and 11, lot 8, and lot 5; is that correct?
MR. DOYLE: Commissioner Hancock, Mr. Duane who prepared
this exhibit is going to be here to testify. And I'm going -- without
me trying to testify for him, I would prefer to let him answer that
question.
COMMISSIONER HANCOCK: Let me ask a question you
probably can answer. Were all of these structures built after the
erosion control line was established in '88?
MR. DOYLE: Not all of the structures shown here are
built. At least one that I know of, number 17, lot 17 in block 1, is
permitted but not built or the permit has been applied for but is not
built.
COMMISSIONER HANCOCK: What I'm asking is those
structures that appear to encroach on this area that is -- that is --
could be impacted by Mr. Arnold's decision, were they built after
19887
MR. DOYLE: I don't know the answer. But either Mr.
Duane or Mr. Lewis will be able to testify to that.
COMMISSIONER HANCOCK: As you go through your testimony,
if you could have that answered for me, please.
MR. DOYLE: Our first witness, we'll call Mr. David
Pettrow, a former employee of Collier County who will be questioned by
Bruce Anderson.
MR. PETTROW: Good afternoon.
MR. CUYLER: Yes. Madam Chairman, we've had a request
that the speakers not only state their name but spell their name as
well for the record since we don't have speaker slips.
MR. PETTROW: Good afternoon. David Pettrow,
P-e-t-t-r-o-w. I'm at 6460 North Hampton Drive, Northeast Atlanta,
Georgia.
COMMISSIONER MAC'KIE: Nice to have you in town, Dave.
MR. PETTROW: Thank you.
MR. ANDERSON: Mr. Pettrow, could you please state for
the record the various positions that you held here at Collier County
and the approximate time frames, please?
MR. PETTROW: I was hired in Collier County in 1985 in
June as a planning and zoning director. In October of 19 -- and that
lasted until 1986. I was promoted to the community development
administrator's position. I got four or five of these to go through.
In March of 1989 with the new development services department taking
shape and reorganization, I was appointed to head that up as
development services director. And in March of 1991 in
reorganization, I took the title of site development review director.
And then in March 1993 through February '94, I became the long range
planning director. After I left due to a downsizing.
MR. ANDERSON: During your service with Collier County,
did you have occasion to become involved with concerns that arose
during the first three months of 1986 concerning required setbacks for
beach-front lots at Hideaway Beach?
MR. PETTROW: Yes, I did. It was a builder early in
January, I believe, 1986 that was building a structure on Hideaway
Beach in blocks 1 or 2. And he had some concern after he had started
that the water -- he was very close to the mean high water or the --
the shoreline and asked if staff could take a look at that to ensure
that his setbacks were indeed properly set.
So I asked Dr. Ed Profitt who was with our Department of
Natural Resources to accompany me. And with a plat map we went out to
Hideaway Beach. And sure enough, the water was -- based upon the
original plat map had apparently -- had severely eroded at least
visually what we had seen compared with the plat map those properties,
a number of the properties on blocks 1 and 2.
Subsequent to that then I put together a executive
summary requesting the board hear about this concern. And I think it
was in February where I presented to the Board of County Commissioners
at that time the nature of the problem and that there was a health,
safety, welfare issue here regarding future residents on the beach
building, two, that a potential liability of the county to continue
permitting under such circumstances and the nature of or the degree of
the amount of erosion that occurred on some of these lots and asked
them if we could halt the building permit process for blocks 1 and 2
for a short period of time to enable us to come back with
recommendations on it.
As a result of that, the board directed the engineering
department, which met the survey crew, go out and look at a mean high
water line since that was referenced in the PUD and in the plat, the
original plat of 1979. And they put a two-week moratorium on building
permits.
We -- we came back in -- in two weeks, and there were
still some things that we had not yet prepared for a recommendation.
It ultimately led to our finding or striking a new line based upon the
survey department where that mean high water line was showing
extensive erosion, particularly in the northern sections of that
property.
And I prepared a map, which I believe Bruce has, that is
a generalized map showing the extent of erosion on those properties.
And the county lifted the two-week moratorium. Of course, it expired
at that time.
We were to meet again with formal and final
recommendations I believe in early March, March 4, I believe, at which
time the board heard again from me with recommendations that we allow
the construction of homes in there based upon permits being submitted
and using the mean high water line -- and this was particularly
important because this was a recommendation of the board that they
acted on -- using the mean high water line by a current survey for
affected lots. In other words, where there was erosion we would use a
survey --
CHAIRPERSON MATTHEWS: Mr. Pettrow, how does this apply
to the -- the case at hand? I mean, you're talking about things that
happened in 1986, beach renourishment occurred in 1990, and this
erosion control line came into being.
MR. PETTROW: Okay. I'm setting up the basis for how we
applied this methodology because in -- Wayne's interpretation runs
counter to that methodology, and I'll respond to that in a -- in a few
minutes. I'm just trying to get you a little bit more background.
And some of it will be a rehash, and I'll try to keep it as brief as
possible.
Anyways, presented to the board that our recommendation
was -- is to take each property on a case-by-case basis, in other
words, having a survey submitted to us, certified survey, showing the
mean high water at the time the building permit application was
applied for. And that would then tell us the amount of adjusted
setback needed on any one of those lots.
So it was a case-by-case basis, on an individual basis,
and using the mean high water line as the -- as the point to measure
back 50 feet. And the reason we chose 50 feet was not for all of
them, but it was the least we could go back. When -- when originally
the PUD was created, the least lot depth was 50 feet, and that was in
the northern end.
And after discussing this with the attorney's office
prior to coming to the board on March 4, we concluded that it was fair
and reasonable to keep it at least at a minimum of 50 feet and still
be -- still consider the safety issue of being far enough away as the
original plat had shown.
So the board approved our recommendations and directed
us to come back with a PUD showing that methodology put in that PUD.
MR. ANDERSON: Do you recall why that PUD amendment was
never accomplished?
MR. PETTROW: No, it wasn't. As far as I'm aware it
wasn't.
COHMISSIONER MAC'KIE: Did you say why or whether?
CHAIRPERSON MATTHEWS: I think his question was why.
MR. ANDERSON: Do you recall why?
MR. PETTROW: I'm sorry. Immediately following that
March 4 meeting when the board approved this methodology, I had
approached the attorney's office on I'm almost certain at least two
occasions. And the purpose of that was to get some legal guidance,
some advice as far as how and what to structure the language in a PUD
amendment. I didn't have any follow-through. I just -- I can't
explain why. Perhaps someone else can.
My successor in planning and zoning that took over in
the fall, I asked her to pursue this further and push for the PUD
amendment. It wasn't until March of 1987 that an executive summary
asking the Board of County Commissioners to redirect staff to initiate
a PUD amendment came up. That went before the board, and they -- they
-- they asked them to do that. I can't explain or tell you why that
was never done. You would have to talk with the parties involved in
it at that time.
MR. ANDERSON: Mr. Pettrow, I show you what has been
marked -- CHAIRPERSON MATTHEWS: Mr. Anderson, you have to be on
the microphone.
COHMISSIONER MAC'KIE: I'm not -- I'm not sure this is
particularly relevant. But while you're at a break, I'm going to ask
it anyway. You came all the way from Atlanta today. Are you -- are
you -- you're not being offered as an expert witness. You're just
being offered as a witness.
MR. PETTROW: I'm being --
COHMISSIONER MAC'KIE: Were you subpoenaed to be here?
MR. PETTROW: No.
COHMISSIONER MAC'KIE: Did you have to be here?
MR. PETTROW: I've been retained --
COHMISSIONER MAC'KIE: Did you come willingly? Who paid
your way?
MR. PETTROW: I've been retained by Young, van
Assenderp, and Varnadoe as a fact and an expert witness.
COHMISSIONER MAC'KIE: And -- and who paid your way?
MR. PETTROW: The client I think through --
COHMISSIONER MAC'KIE: Your client, Bruce's client.
MR. ANDERSON: (Attorney nodded head.)
COHMISSIONER MAC'KIE: Just curious.
MR. ANDERSON: I assume you'll ask that question of any
other witnesses as well.
COHMISSIONER MAC'KIE: Absolutely.
MR. ANDERSON: Mr. Pettrow, I show you what has been
marked as Petitioner's Exhibit 27. Would you please identify it for
me and for the commission.
MR. PETTROW: This is a letter dated April 10, 1992, and
a response letter, April 29, '92. The request letter is from Bill
Lewis who's a registered architect representing the Hideaway Beach
Homeowners' Association asking me for clarification or an explanation
of how we fix these setbacks and structures on the Hideaway Beach PUD
on the beach-front lots. And I prepared a short two-page response
outlining our methodology. Would you like me to --
MR. ANDERSON: Could you summarize -- summarize --
MR. PETTROW: Sure.
MR. ANDERSON: -- what you told him in that letter?
MR. PETTROW: Yeah. Basically I went back over and
indicated to him due to the severe erosion on many of those lots in
there and our approach to the board concerning that the action taken
was to administer this on a case-by-case basis and brief -- similarly,
we would use a survey on all affected lots to determine an adjusted
lot setback showing the mean high water and measuring back 50 feet
where there was severe erosion. Where there was little or no erosion
and an applicant or a homeowner could meet automatically 50 foot, he
could build at the original platted line. He made that very clear.
And thirdly also that's -- at the time of this letter in
'92, it was after the erosion control line came in. I pointed out
that no structure could be located seaward of the erosion control
line. That was the main things I was trying to get across.
But I outlined the process that we had used since 1986,
and that was on a case by case using individual surveys showing a mean
high water line as our reference point because that was a variable.
And in discussions with Mr. Lewis when he had come into
the office and subsequent to that is that that line varied. It varied
-- it could have varied month to month, year to year certainly. And
that's why we used the surveys because that would show where it was
just prior -- a current survey would show where it was just prior to a
permit building application being applied for.
MR. ANDERSON: Mr. Pettrow, have you reviewed the
surveys that were submitted by American Engineering and Treego and
Associates for construction of the Gibson home on lot 147 MR. PETTROW: Yes, I have.
MR. ANDERSON: Would the county have issued a building
permit for the Gibson home in its present location as depicted on
those surveys according to the interpretation that you had rendered?
MR. PETTROW: Yes.
MR. ANDERSON: As a professional planner and based on
the county commission's action in 1986, do you believe Mr. Arnold's
interpretation of the PUD setback is correct or not, and would you
please explain the basis for your conclusion?
MR. PETTROW: I don't think it is. I can't agree with
the interpretation mainly because when the board authorized staff,
directed staff, in 1986, they did so with the understanding that each
of these would be applied on a case-by-case basis. That in itself
shows the variability of it using a -- and we explained to them we
would use surveys for that type of thing and measure back where there
was erosion 50 feet from the mean high water.
Wayne's interpretation is a completely different
methodology. It -- it uses a fixed line, the erosion control line,
and I don't -- I feel that that's -- goes way beyond the intent of
what the board had or even quite different than what the board had
directed staff to do. And on that basis I feel that Mr. Arnold's
interpretation is not correct.
COMMISSIONER MAC'KIE: And just an interpretation for
me, the 1986 direction from the board that we're referring to is this
resolution that's in your -- your packet under tab 4 that talks about
the moratorium?
MR. ANDERSON: That was before their direction. The
moratorium was while they were trying to figure out what to do.
COMMISSIONER MAC'KIE: So do we have a copy of -- I'd
like to see the direction from the board that Mr. Pettrow was relying
on.
MR. ANDERSON: If you'll look in there, it's in the
board minutes. That's all there is.
COMMISSIONER MAC'KIE: In the minutes.
MR. ANDERSON: March 4, 1986.
CHAIRPERSON MATTHEWS: Mr. Anderson, we're -- we're
going to take a short five-minute break. The court stenographer has
to change out.
MR. ANDERSON: Oh. Could I ask two quick questions and
wrap him up? Thank you.
Mr. Pettrow, at the time you issued your letter to Mr.
Lewis, your title was development services director; is that correct?
MR. PETTROW: '92 it was the site development review
director, I believe, yeah.
MR. ANDERSON: And you were authorized under the land
development code to issue interpretations; is that not correct?
MR. PETTROW: Yes, sir.
MR. ANDERSON: And was it your interpretation that Mr.
Lewis as architect for the Hideaway Beach association and the agent
for the Hideaway Beach association and for the property owners out
there would rely on your letter? MR. PETTROW: Yes, sir.
MR. ANDERSON: Thank you. I have no further questions.
CHAIRPERSON MATTHEWS: Okay. We're going to take a
short five-minute break.
MR. CUYLER: Madam Chairman, could I get something on
the record? I don't want to be a fact witness in this, but there was
something that had to do with the office. While Mr. Pettrow's still
here -- still here, I just want to make it clear I don't remember
anything about any request from development services for ordinances
back at that time, just kind of an office type of thing. I just don't
recall what Mr. Pettrow's saying there.
CHAIRPERSON MATTHEWS: You mean the -- the request for
health and adjustment PUD?
MR. CUYLER: It's not relevant -- it's not really
relevant to the issues. He just indicated that he had approached the
county attorney's office and had asked several times about the PUD. I
don't have any recollection of it.
COHMISSIONER MAC'KIE: Nobody's offered any written
memoranda or anything like -- to that effect.
CHAIRPERSON MATTHEWS: No. Haven't seen anything.
Okay. Five-minute break.
(A short break was held.)
CHAIRPERSON MATTHEWS: I want to reconvene the board of
commissioners' meeting, July 18th, 1995. We are discussing an appeal
to Mr. Arnold's interpretation of Land Development Code. Mr. Arnold,
Mr. Pettrow was just a witness with Mr. Anderson. Did you have any
questions for him?
MR. ARNOLD: I do have a couple of questions for Mr.
Pettrow. I'm not sure what the format will be. I don't know if you
choose to also ask questions of each witness as you go along.
CHAIRPERSON MATTHEWS: I think the best way to move
through this as quickly as we can is that as each witness is brought
up, all participating parties will ask questions of that witness.
That way we don't have a reinventing of the same witness at a later
date.
COHMISSIONER MAC'KIE: Madam Chairman, who is -- I'm
afraid I know the answer to this question, but I'm going to say it on
the record anyway. Who is the legal representative of the county?
Who cross-examines everyone's witnesses on behalf of the county?
CHAIRPERSON MATTHEWS: Mr. Arnold.
COHMISSIONER MAC'KIE: Mr. Arnold as pro se?
CHAIRPERSON MATTHEWS: Mr. Arnold will be, and
presumably Mr. Cuyler will keep us within the legal realms of what we
need to do.
COHMISSIONER MAC'KIE: So everybody has a lawyer here
except the county staff who made the interpretation?
CHAIRPERSON MATTHEWS: Mr. Cuyler is here.
MR. CUYLER: That's correct.
COHMISSIONER MAC'KIE: But are you going to
cross-examine on behalf of the county?
MR. CUYLER: Staff is going to be cross-examining on
behalf of the county. Any board member that wants to ask a question
can ask a question.
MR. ARNOLD: I might ask Mr. Pettrow if we're ready to
go --
CHAIRPERSON MATTHEWS: We're ready to go, Mr. Pettrow.
MR. CUYLER: And the reasons for that, Commissioners,
obviously if I take an adversary position, then there's going to be a
claim that I'm on staff's side, and I can't impartially advise the
board on legal matters that come up.
MR. ARNOLD: Mr. Pettrow, in the record of board of
commissioners' minutes as were provided in the agenda packet, there's
reference to a 50-foot setback from the eroded shoreline of Hideaway
Beach that's reflected in those minutes. Could you please explain how
the 50-foot setback from the eroded shoreline became synonymous with a
measurement of 50 feet from the mean high waterline for determining
setback?
MR. PETTROW: The original plat of 1979 had a shoreline
which is synonymous with the mean high waterline which was synonymous
with the property line, the rear property line. They are used
interchangeably. The erosion that we discussed with the Board of
County Commissioners was excessive in many areas. And, again, to --
the decision was made and a recommendation before we came to the board
to talk about -- to get a final okay on this was that I had to look at
the original plat map and decide what would be fair and reasonable and
yet provide a certain modicum of safety. And the lots on the north
had the least rear setback of 50 feet. Many of those were eroded
severely and up to and perhaps even, if I recall, some of them beyond
the construction control line. The basis upon which we used the mean
high waterline was that it was -- it was something that was in a state
of -- it was variable, and it was -- it was what was already the rear
property line. And on that basis we felt it was safe. Well, if
you're going to measure, use that 50 foot at a minimum, because that's
what the Hideaway PUD had nothing less than was a 50-foot minimum.
we used that 50 foot that we originally had at the north end as a
minimum and the mean high water based upon a current survey. 50 foot
from that back we felt was a safe and a reasonable distance to make
that adjustment to.
MR. ARNOLD: Thank you.
COHMISSIONER MAC'KIE: But, Mike, what was your question
again? I didn't think that addressed the question. You're asking --
MR. ARNOLD: My question was how did we move from the
eroded shoreline setback issue which was discussed at that particular
board meeting to the interpretation that was written to Mr. -- or the
informal interpretation to the letter written to Mr. Lewis which said
you measure from mean high waterline. That specifically would be
because after 1990 when the platted erosion control line came into
effect we had a new property line. So if the eroded shoreline was the
property line, we now had a new property line.
COHMISSIONER MAC'KIE: I had this same question. Do you
mind if I ask a little bit while you're at it?
MR. ARNOLD: Please.
COHMISSIONER MAC'KIE: Just that as I'm looking through
these minutes that you're referring to us in March of '86, I see the
same thing, eroded shoreline. I don't see anything that says mean
high waterline. So I think there was a leap that was made from the
board's direction. Well, first I think there's a leap from -- from a
reading of these minutes, I see where Commissioner Pistor stated that
the board should take it on a case-by-case basis. I see where the
motion was you can issue building permits and bring us back a PUD
amendment. But I don't see where in these minutes it says staff
interpret this on a case-by-case basis, and so I'm asking both Mr.
Arnold's question about the leap on which line were we talking about
and also where -- I don't see where it says, staff, use your
discretion.
MR. PETTROW: In the discussion with the board over
several meetings on that, the mean high waterline was referenced. I
do not know what those actual minutes -- there are things in there
that I feel perhaps could have been left out. There was also a letter
of March 3rd, a memo to the county attorney's office and addressed to
Ken Cuyler with my formal recommendations on there that I believe that
we discussed a number of those at that last meeting that do mention
the mean high water. The mean high water and shoreline and, again,
rear property line were all the same thing on the original plat.
COMMISSIONER MAC'KIE: And I guess the document speaks
for itself, but I don't think the minutes say, staff, go and interpret
this on a case-by-case basis. And if I -- if you see something that
says that, I was asking you to point it out to me. That's it for me.
MR. ARNOLD: One other question. Did you ever render an
official interpretation on the setback issue outside your letter to
Mr. Lewis?
MR. PETTROW: No.
MR. ARNOLD: And as planning and zoning director in your
previous position with the county, do you recall any situation where
principal structures could be located closer to property lines than
accessory structures?
MR. PETTROW: I can't recall any.
MR. ARNOLD: Thank you.
COMMISSIONER MAC'KIE: This is a question for Mike. Can
I ask this?
CHAIRPERSON MATTHEWS: Sure.
COMMISSIONER MAC'KIE: I'm trying to get this straight
in my head about --
CHAIRPERSON MATTHEWS: For Mike? For Wayne.
COMMISSIONER MAC'KIE: For Wayne. I've said that
twice. I apologize. From 1990 when the erosion control line was
adopted to 1994, there were three permits including the Gibson house
issued. One is 50 feet from the erosion control line for the
principal structure. One is 37 from the erosion control line for
principal structure, and Gibson is zero. I want to be sure I've got
that straight.
MR. ARNOLD: That's correct. And, again, I haven't had
a chance to go back and look at all the permits. We do have a survey
that was prepared by -- I'm not sure at this point if it was prepared
by the appellant or Mr. Vasey's representatives but, nonetheless, a
survey was commissioned. I do have all the permit information with
their distance.
COMMISSIONER MAC'KIE: Were those three issued when you
were in charge or when Mr. Pettrow was in charge?
MR. ARNOLD: Probably -- well, actually to be honest,
neither Mr. Pettrow nor myself issue building permits.
COMMISSIONER MAC'KIE: No, but who was in charge?
MR. PETTROW: Of what? I'm sorry.
COMMISSIONER MAC'KIE: When the other two besides Gibson
were issued, I don't know what they were, but one's 50 feet back, and
one's 37 feet back from the erosion control line. I was wondering if
that was something that the property owner voluntarily did. They just
came in and said we want to build ours 37 feet back, and another guy
said we want to build 50 feet back, or if the staff told them thou
shalt be 50 and 37 feet back.
MR. PETTROW: Whenever -- I don't know who did that
review in permitting in every case after 1992 because in mid-1992 I
turned these reviews for the setbacks over to project review section,
and they handled them. But we never indicated or told individuals
that they had to build greater than 50 feet back. We told them you
could build up -- that construction lot line is where you could build
to. It was -- if they built 15 foot landward of that at their own
discretion, that's fine. But they couldn't exceed or go seaward of
the either originally platted line if they weren't eroded upon or the
adjusted line based upon a mean high water being up based on the
survey.
CHAIRPERSON MATTHEWS: Okay. Commissioner Hancock.
COMMISSIONER HANCOCK: Mr. Arnold, you said something
that conflicts something Mr. Doyle said earlier, and I want to -- to
ask you about that. You said that when the erosion control line was
established, it then became the property line. Is that what you're
saying?
MR. ARNOLD: That's correct.
COMMISSIONER HANCOCK: So the old property line you're
saying is abolished. It doesn't exist anymore. In 1988 when the
erosion control line was established, it then became the property
line. Is that your position?
MR. ARNOLD: Once the erosion control line was platted
and adopted line of record, it superseded all other controlling lines,
and according to state statute that line now becomes the demarcation
between upland property owners and the State of Florida. It's in the
State Statute, Chapter 161.
COMMISSIONER HANCOCK: Okay.
MR. DOYLE: We don't disagree with that, Mr. Hancock.
COMMISSIONER HANCOCK: Okay.
MR. ARNOLD: If this might be an appropriate point, I
had one point raised by Mr. Doyle that I'd like to clarify for the
record. He indicated that they -- they asked for two
interpretations. Should I not? Should I wait? I'm finished with Mr.
Pettrow, if that's --
CHAIRPERSON MATTHEWS: If you would wait to do that.
We've got another party that wants to cross-examine.
MR. ANDERSON: Before we get to that I want to --
CHAIRPERSON MATTHEWS: Mr. Anderson, you have to be on
the record.
MR. ANDERSON: Miss Mac'Kie, you were asking where in
the record the references to the case-by-case basis and the mean high
waterline are. It is the minutes from March 4, 1986. It's in the
first full paragraph where planning zoning director Pettrow is giving
the staff recommendation, which was subsequently adopted in that
meeting, and he uses the term case-by-case basis and also mean high
waterline.
COMMISSIONER MAC'KIE: I guess --
MR. ANDERSON: This is in Exhibit 4.
COMMISSIONER MAC'KIE: I see that, Mr. Anderson. My
question, I guess, one could interpret that his request was what the
board approved. But the motion says -- the motion does not say case
by case. Mr. Pettrow asked for case by case, but the motion maker
didn't include those words, and it's surmised, you know, that that was
in the mind of the board members at the time. I think it is.
MR. KOBZA: Mr. Pettrow, for the purposes of the record
my name is Kim Kobza. I'm a representative of the adjacent property
owner, Mr. and Mrs. Vasey.
CHAIRPERSON MATTHEWS: Mr. Kobza, how long do you think
your cross-examination --
MR. KOBZA: This will take me 5 minutes or less. I'm
very concerned about the time constraints --
CHAIRPERSON MATTHEWS: I'd prefer less.
MR. KOBZA: -- because I'm looking at my case as well,
and that's going to be time consuming.
Mr. Pettrow, I'd like to show you two exhibits and --
okay. In fact, Mr. Pettrow, in 1986 you were extremely concerned
about the erosion in the north end of Hideaway Beach, were you not,
throughout not only block 1 but block 2 as well? MR. PETTROW: Yes, sir.
MR. KOBZA: Okay. And in that capacity, in fact, you
had the county surveyor go out and survey that line which fell 50 feet
from the then mean high waterline; is that not correct?
MR. PETTROW: No, that's not correct. We had the
surveyor go out to show us where the mean high waterline was at a
certain contour interval, and we drew a line on this plat map showing
where that mean high waterline was at the date they surveyed.
MR. KOBZA: And, in fact, the setback line which you
applied was 50 feet from the mean high waterline; is that correct?
MR. PETTROW: No. I don't -- let me put it -- I don't
understand the question. Is it I applied when? Forever?
MR. KOBZA: When you applied the board's direction in
1986.
MR. PETTROW: I applied the 50-foot setback from the
surveys that were provided.
MR. KOBZA: Mean high -- from the mean high waterline;
is that correct?
MR. PETTROW: That was --
MR. KOBZA: The then existing mean high waterline.
MR. PETTROW: No. After the board had given us
direction on March 4th, we used surveys. Those surveys showed where
the mean high waterline was, and it was from that point they had to be
50 foot back to their building construction line.
COMHISSIONER MAC'KIE: That's what he just said, I
think. MR. KOBZA:
MR. PETTROW:
MR. KOBZA:
MR. PETTROW:
HR. KOBZA:
Mr. Pettrow, do you recognize Exhibit A -- Yes, I do.
-- as being a county prepared exhibit?
Yes.
And, in fact, you prepared that, and you
were operating under that exhibit showing the setback line 50 feet
from the then existing mean high waterline?
MR. PETTROW: I was using that to demonstrate where the
erosion had gone to or the mean high waterline was at the date the
staff engineers or the staff surveyors went out, and it was on the
basis of this that we -- MR. KOBZA: Okay.
MR. PETTROW: -- came about using the surveys.
MR. KOBZA: I'd like to show you another exhibit, Mr.
Pettrow, Exhibit Number B. Is this not also a county prepared exhibit
where, in fact, you calculated for each and every lot which was
affected by 50 feet from the mean high waterline, you calculated the
dimensions, buildable dimensions for those lots; is that not correct?
MR. PETTROW: That's correct.
MR. KOBZA: Okay.
MR. PETTROW: I can explain.
MR. KOBZA: That's enough. Just answer the question,
please. Okay. And you applied those dimensions for every property
that came in thereafter in the interval of your -- your position with
the county?
MR. PETTROW: No.
MR. KOBZA: Okay. You're saying that you did not apply
the setback that you had established 50 feet from the then mean high
water in 19867
MR. PETTROW: No.
MR. KOBZA: Okay. When Mr. Vasey -- Mr. and Mrs. Vasey
came in in 1987, in fact, you did not apply the 50-foot setback to the
then mean high water to the Vasey permit?
MR. PETTROW: I can't recall the specific survey or the
application.
MR. KOBZA: Okay.
COMMISSIONER MAC'KIE: Before you leave that exhibit --
MR. KOBZA: Sure.
COMHISSIONER MAC'KIE: -- I just -- this was an exhibit
that you prepared for this '86 discussion with the board?
MR. PETTROW: I believe the -- one of the -- I think
Bruce or Robin had pulled this out. I have -- I can explain it to you
if you wish how I used it. I made this up after -- on the basis of
using this original plat map with this -- with this line running
through it showing the current mean high waterline as opposed to the
original mean high waterline. And because I was getting telephone
calls in from buildings, contractors, prospective lot buyers and some
architects, I wanted a ready sheet to give them some idea of, first of
all, what was the original lot depth based upon the original plat on
the north and south side, the lot lines running out, and then based
upon this line, what that erosion based upon this surveyor's map had
shown us how much they effectively have to build in general. We never
-- I never used that as an exact. In other words, I didn't say
here's all you have on the north side of number 17, for instance, 67
feet left and on the south side at 78. We would have said, here, get
a survey. This is giving you pretty much -- COMHISSIONER MAC'KIE: A ballpark.
MR. PETTROW: Close what it's going to be, because the
width of this line of the previous display item could have been many
feet as far as how far in you have to be, and there's an error built
with any line you use on graphics, and so this was my little list of
quickies. Rather than every time someone called or come in and have
to figure out approximately how much, because a lot of these people
would say can you give me some idea what I lost or what I can get back
or whatever, so I used this as a reference sheet. COMHISSIONER MAC'KIE: Okay, thank you.
MR. KOBZA: Mr. Pettrow, going further, please. When
you rendered your opinion or your -- your letter, let's call it, to
Mr. Lewis, was that done on behalf of any specific client of his; do
you remember? Do you have notes of your meeting? You refer to a
meeting in your letter of April 29, 1992.
MR. PETTROW: Uh-huh.
MR. KOBZA: There's no indication that Mr. Lewis asked
for that letter on behalf of a specific client.
MR. PETTROW: No. Apparently, and what I understood is
he represented the Hideaway Beach Association, or he was doing work,
and because there was some reviews, maybe architectural reviews by the
association, he needed a better understanding.
MR. KOBZA: At that point did you seek guidance from the
county attorney's office as to the legal effect of an erosion control
line?
MR. PETTROW: At this point?
MR. KOBZA: At the point --
MR. PETTROW: I can't recall doing that, no.
MR. KOBZA: You did not seek guidance from the county
attorney's office with respect to the legal effect of the
establishment of the erosion control line?
MR. PETTROW: No.
MR. KOBZA: Okay. And you're not an attorney?
MR. PETTROW: No.
MR. KOBZA: Now --
CHAIRPERSON MATTHEWS: Mr. Kobza, can you move it
along? You said five minutes.
MR. KOBZA: I've got two questions that are fairly
critical here.
COHMISSIONER MAC'KIE: Two to start with, Kim.
MR. KOBZA: Cut me off. Stop me.
So if, for instance, as a coastal expert I was able to
demonstrate to you that that's a sacrificial beach renourished in
front of the erosion control line, you wouldn't have -- MR. ANDERSON: I object.
MR. KOBZA: -- any ability -- you wouldn't have any
ability or any background --
CHAIRPERSON MATTHEWS: This isn't a court of law. I
mean I wouldn't even begin to know how to handle an objection so --
you know. We're just trying to take in the information.
MR. KOBZA: In other words, if I showed you that the ECL
was not simply a property boundary, but a boundary which also imports
a safety concern and that the beach, in fact, was designed to erode or
designed as it would erode or with the understanding, you would have
no basis or professional background to make that assessment; is that
correct?
MR. DOYLE: Prior to his answer --
CHAIRPERSON MATTHEWS: Mr. Doyle, you've got to be on
the -- on the microphone.
MR. KOBZA: You're not a coastal engineer?
MR. PETTROW: I'm not a coastal engineer, no.
MR. DOYLE: If I might enter an objection for the
record, the basis of our objection is that the witness has been asked
a hypothetical question based upon facts which are not before this
board, and we believe that that makes it an improper question.
MR. KOBZA: As was your hypothetical question as to
whether Mr. --
COHMISSIONER CONSTANTINE: How about if we just note the
objection and allow the question, because this isn't a court of law.
MR. KOBZA: In other words, you don't have the
background, do you, Mr. Pettrow?
MR. PETTROW: Technical coastal engineering questions,
no.
MR. KOBZA: Okay. Now, have you reviewed Section 4.04
as -- with respect to the setbacks on -- within this PUD?
MR. PETTROW: Being the Hideaway Beach PUD --
MR. KOBZA: Yes.
MR. PETTROW: -- ordinance?
MR. KOBZA: Yes.
MR. PETTROW: Yes.
MR. KOBZA: Okay. Would you not agree as a professional
planner that typically accessory structures such as pools are forward,
or their setbacks are less restrictive than those for principal
structures?
MR. PETTROW: Yes.
MR. KOBZA: Okay. And isn't the logical conclusion from
your statement that the principal structure could be located to the
principal -- or to the erosion control line, that the accessory
structure would be by -- under the PUD 50 feet back of that ECL?
Wouldn't that be a logical conclusion? Mr. Arnold has made his
determination on the basis in part that that setback for accessory
structures is 50 feet, and a principal structure can't be forward.
Now, isn't your conclusion, your logical conclusion of what you've
said to this board, directly in opposition to that?
MR. PETTROW: I've never accepted the ECL as a property
line that had that restriction that the county enforced.
MR. KOBZA: But if we --
MR. ANDERSON: Let him answer the question.
MR. KOBZA: If we accept your conclusion, then you have
the principal structure at zero to the ECL and the accessory -- the --
the accessory structure 50 feet from the erosion control line?
MR. PETTROW: If you're zero at the principal structure,
you're not building an accessory structure.
MR. KOBZA: Okay. But the setbacks would be 50 feet
from the erosion control line for the accessory structure. That's a
wholly illogical planning solution, Mr. Pettrow.
CHAIRPERSON MATTHEWS: Are there other questions for Mr.
Pettrow?
I -- I have one question, Mr. Pettrow. You just said
you never accepted the ELC (sic) as a property line, and yet Mr.
Arnold was earlier telling us that the state established that line,
the county confirmed that line, and that is the property line, and the
sand seaward of that line belongs to the state.
MR. PETTROW: I'm sorry for saying I accepted. I
understood when the beach renourishment took place and that erosion
control line was struck that that was state property seaward of that.
I agree.
CHAIRPERSON MATTHEWS: Okay. I just wanted to clarify
what you said.
MR. PETTROW: We didn't use that as a state -- I mean, a
county setback.
CHAIRPERSON MATTHEWS: Okay.
MR. ANDERSON: Two -- two questions to clear up some
confusion.
Mr. Pettrow, were the building permits that were issued
after 1986 on a case-by-case basis? Was that with the concurrence of
legal counsel that they were done on that basis?
MR. PETTROW: I don't understand the question in the
sense were they consulted at each time.
MR. ANDERSON: No. But was the process of handling it
on a case-by-case basis done with the concurrence of legal counsel?
MR. PETTROW: From the directions given to this board in
leaving it and employing it, I would say yes.
MR. ANDERSON: Okay. Was the map that Mr. Kobza
referred -- had on display just a little earlier, the one that you had
helped participate in the preparation of, was it intended to be used
in perpetuity?
MR. PETTROW: No.
MR. ANDERSON: Thank you.
CHAIRPERSON MATTHEWS: I believe we are complete.
Mr. Doyle, you have another witness?
MR. HUHPHREVILLE: My name is John Humphreville, and
Bill Lewis is our next witness.
CHAIRPERSON MATTHEWS: I'm going to limit questions to
direct and cross and then cross-examination by each of the sides,
because if we get into redirect, then there's going to be recross and
so forth. So I want to get -- I want you to get your questions out
the first time around.
MR. HUHPHREVILLE: Well, there's no way first time --
Madam Chairman, there's no way the first time around to know what the
cross-examination questions are going to be and what new information
might be brought before this body, and we --
CHAIRPERSON MATTHEWS: Let's try to --
MR. HUHPHREVILLE: We need an opportunity to --
CHAIRPERSON MATTHEWS: I'm asking you to get the
pertinent information on the record as early as you can.
MR. HUHPHREVILLE: Certainly.
CHAIRPERSON MATTHEWS: Okay.
MR. HUHPHREVILLE: We will endeavor to do that.
Mr. Lewis, would you state your name and address for the
record, please.
MR. LEWIS: Yes, William Hunter Lewis. It's spelled
L-e-w-i-s, 950 North Collier, Number 407, Marco Island, Florida. I'm
a Florida registered architect, number 13587.
MR. HUHPHREVILLE: And you're affiliated with Hideaway
Beach Association?
MR. LEWIS: Yes, I've been a reviewing architect for the
Hideaway Beach Association since 1987. During that course I was with
Cunningham and Lewis Architects and Associates from 1987 till the fall
of 1990, and with W. H. L. Architects from the fall of 1990 to present
day.
MR. HUHPHREVILLE: Could you describe your duties as
reviewing architect for the association, please.
MR. LEWIS: Yes, I directly advise the association.
Anytime for the single family -- strictly for single-family
residential --
CHAIRPERSON MATTHEWS: Excuse me. How is this pertinent
to this appeal? I mean I don't want to be here until midnight.
MR. HUHPHREVILLE: Mr. Lewis was reviewing architect for
Hideaway Beach from 1987 to the present and has probably a greater
familiarity with the approval process and the setbacks applied for
properties along Big Marco Pass than anybody. Mr. Lewis was also the
personal architect --
COHMISSIONER NORRIS: Mr. Humphreville, excuse me. How
about if we just stipulate that he's an expert on Hideaway Beach, and
you ask him the pertinent questions. Can you do that?
MR. HUHPHREVILLE: We've asked him to be here as a fact
witness and not as an expert witness but, yes, we can certainly do
that.
In your capacity then, Mr. Lewis, as reviewing architect
for Hideaway Beach, you have personal knowledge of the setback
requirements used by both the county and the Hideaway Beach
Association?
MR. LEWIS: Yes.
MR. HUMPHREVILLE: And you're familiar with the -- I'm
going to refer you to what is referred to in petitioner's exhibit book
as Exhibit Number 1. If you would please refer to Exhibit Number 1,
Mr. Lewis, and there is a microphone behind --
COMMISSIONER HANCOCK: Mr. Humphreville, can you direct
us to Exhibit Number 1 in our -- MR. HUMPHREVILLE: Yes. In our book it is the plat.
Exhibit 1 --
COMMISSIONER MAC'KIE: It's Exhibit 1 in our book.
COMMISSIONER HANCOCK: Okay.
MR. HUMPHREVILLE: Foldout exhibit.
COMMISSIONER HANCOCK: I understand. Thank you.
MR. LEWIS: This is the plat map as originally platted,
and it shows the construction, original construction boundary, that is
the dividing line between the brown and the green that you see. That
was the building control line as stated for the principal structure.
What you see that is the variable, if you saw the rest of the
beachfront, there was a consistent hundred-foot setback for the
building control line. On Mr. Vasey's property of 12 and 13, on his
property it went from 100 to 70, 70 to 50, so there is a shift in the
principal structure building control line of 50 feet that was in the
original plat from 1978. That has never changed. It was always
intended that any structure that would be built on lots 14, 15, 16, or
17 would extend possibly 50 feet beyond the limit of all the other
beachfront lots, okay. That has not changed. That is still in effect
today, and that was as originally platted. You heard the setbacks
referred to principal structure and accessory structure. Where that
applies on these lots as they were platted, the building control line
was 50 feet from mean high water. Therefore, any construction cannot
extend beyond that limit.
On the plat for the balance of the lots there was a
distance of a hundred feet for mean high water to the building control
line at that time, which meant in your accessory structures such as
the pool and deck, it could extend up to 50 feet beyond that original
platted control line. So, in essence, the limit of construction was
virtually the same. The difference was principal structures could
extend the full distance on 14, 15, 16, 17. The balance of the -- the
other beachfront lots, the principal structure would stop a hundred
feet from mean high water. The pool could extend the 50 feet.
MR. HUMPHREVILLE: And that's -- you're referring to
section 4.04 of the PUD as amended for Hideaway Beach? MR. LEWIS: That's correct.
MR. HUMPHREVILLE: Could you describe how the Hideaway
Beach Association and the county interpreted the appropriate setback
prior to renourishment along Big Marco Pass?
MR. LEWIS: Yes. It's always the most restrictive of,
always a minimum setback of 50 feet for mean high water, and the
building control line was your limit of construction. Again, on lots
14, 15, 16, 17, it was a permanent limit. On the balance of these
lots it was a limit for the principal structure, and then the pool
could have extended up to 50 feet or no closer than 50 feet for mean
high water, whichever was more restrictive. So there's never been one
line you designed to. It's always been the more restrictive of the
conditions on the lot.
MR. HUHPHREVILLE: Could you describe, please, Mr.
Lewis, the appropriate setback after beach renourishment?
MR. LEWIS: After renourishment there was a new line
which was the erosion control line. It had been set in 1988. It was
the measurement of the mean high water in 1988. The state DNR set
that line as part of the process to establish the renourishment.
Again, now there were three lines, three rules. No closer than 50
feet to mean high water, you could not extend beyond the building
control line seaward. You could not extend seaward over the erosion
control line. In the -- always the most restrictive would reply --
would apply, and I would never even discuss construction on a lot to
any client or the association without a current survey. A current
survey is always a requirement, because you do not know what you're
dealing with without a survey.
MR. HUHPHREVILLE: And that survey would show the then
mean high waterline --
MR. LEWIS: That's correct.
MR. HUHPHREVILLE: As well as the erosion control line
and building control line?
MR. LEWIS: That's correct. And when you file for a
permit, the permit process requires a survey no older than 30 days
which would locate the mean high water within 30 days of the time
you're permitting your structure.
MR. HUHPHREVILLE: In 1992 we have heard you met with
Mr. Pettrow and -- and subsequently requested a letter of
interpretation. Mr. -- which is now Exhibit 27 to the petitioner's
exhibit list. Is Mr. Pettrow's interpretation consistent with what
you've just described as the post renourishment interpretation setback
for the county?
MR. LEWIS: Yes, it is. The purpose of my contacting
Mr. Pettrow was to properly advise the association. I was concerned
about construction after the renourishment. I wanted an absolute
clarification just for this particular reason, because I did not want
to advise a client on any personal interpretation I had. I wanted an
absolute interpretation from the county officials as to the applicable
setbacks, and that became a record then for the association to also
use. And that was the recommendation I gave the association based on
the meeting with Mr. Pettrow and then the follow-up letter. And I
felt at the time that he was certainly in the capacity at the county
to provide me with such a letter.
MR. HUHPHREVILLE: You were not retained by Mr. Gibson
at the time?
MR. LEWIS: No. I did not know Mr. Gibson at the time.
MR. HUHPHREVILLE: And you submitted the request as
reviewing architect for the association?
MR. LEWIS: Yes, I did, and that's how the letters are
addressed.
MR. HUHPHREVILLE: You can return to the podium for now,
and I think we'll -- well, actually what we're going to do is switch
-- switch exhibits.
Commissioner Hancock, you had a question earlier about
some of the individual properties along Big Marco Pass and when they
were permitted and how they relate to the various setback lines. Mr.
Lewis is going to testify to that now.
Mr. Lewis, we're referring to Petitioner's Exhibit 17 in
your exhibit books. Mr. Lewis, in your capacity as reviewing
architect for Hideaway Beach Association, have you reviewed the plans
and specifications for homes permitted since 1987 along Big Marco
Pass, and if so, how many?
MR. LEWIS: Yes, I have. Since 1987 I have reviewed
and/or designed nine residences on the beach. They include the
Bellestri residence, lots 12 and 11. They include the Glime residence
on lot 8. It includes Mr. Fish's residence, lot 5 and 6; Mr.
Horhing's residence on lot 4; Mr. Quisenberry's residence on lot 3;
the Canning residence on lot 3 --
CHAIRPERSON MATTHEWS: Excuse me. We're willing to
admit that you've worked with all these places. We don't need to have
MR. LEWIS: What I would like to clarify for you,
because there was a question earlier what's been done after
renourishment and what was done before renourishment.
CHAIRPERSON MATTHEWS: That's my question next. And
what have you done since 19907
MR. LEWIS: Since 1990, the Bellestri residence --
CHAIRPERSON MATTHEWS: Okay.
MR. LEWIS: -- was approved. The Bellestri residence
has not been constructed unfortunately due to a divorce. The plan was
approved by the county, and it -- this particular site also went
through the coastal construction permitting process through the
state. It was approved by the governor and his cabinet at that time.
MR. HUHPHREVILLE: That's lots 12 and 11 of block 27
MR. LEWIS: That's correct. And as you can see, the
50-foot setback would pass right through the middle of the home.
Lot 8, Mr. Glime's residence, was the first lot -- first
house built after renourishment. The plans were drawn the late '90's
early, and it was permitted in '91 and constructed immediately.
Again, you can see the 50-foot setback from the erosion control line
which would fall into the residence, and it would take in the entire
pool. I can't give you the exact numbers, but I believe the accessory
structures there are within 8 or 10 feet within the erosion control
line. Okay. That was a part of the permit process. It was part of
the survey documentation. And it was part of the known building
requirements at that time. 50 foot for mean high water, principal
structure behind your building control line, all construction,
alignment with the erosion control line or the more restrictive of
that. And that's the way the Glime residence was permitted and
designed. The Quisenberry residence was the next constructed on lot
3. That was in 1992. I was not the architect for that structure. I
was the architect for Glime, and I was the architect for Bellestri.
MR. HUHPHREVILLE: You were the reviewing architect for
that structure, though, for the association?
MR. LEWIS: Yes. I was the reviewing architect for the
Quisenberry residence, and again the 50-foot setback clips the corner
of the principal structure and cuts through the middle of the pool.
Again, it was permitted based on 50 foot for mean high water,
principal structure, alignment of the building control line, and all
construction alignment of the erosion control line. And that's the
way it was documented in survey form, and that's the way it was
permitted, and it was approved that way.
Shields' residence I designed which occurred next, and
that was built in 1993. In that particular instance the Shields' lot
is probably the -- if you look at the entire beachfront, it's the
deepest lot on the beachfront. They constructed a large home, 5,600
square feet, and in that particular case neither the pool nor the home
would fall within the 50-foot distance from the erosion control line
simply because it was not necessary to build the home they desired
that close to the beach. But, again, it was permitted in this same
process. The guidelines were 50 feet for mean high water, principal
structure alignment of the building control line, and pool landward of
the erosion control line.
And then the next residence in the history is the Gibson
residence. The Gibson residence was submitted for permit in August of
'94. It was approved in September. Construction began in September,
and actually in October of '94 the pilings were driven, and in
November of '94 the slab was poured, okay. Again, we took six weeks
in processing the permit. We did not apply for any variances. We
didn't apply for any special considerations. We had a survey that was
no more than 30 days old at the time of permitting, and it completely
depicted that the entire structure, both pool and principal structure,
was more than 50 feet from mean high water. It was landward of the
erosion control line, and all construction was landward of the erosion
control line. I didn't say that right. It was more than 50 feet for
mean high water. All construction was landward of the building
control line and was landward of the erosion control line, and that
was the method it was permitted and processed. There was no questions
from any of the county staff about applying a 50-foot setback from the
erosion control line. There was never any discussion of that or any
suggestion of that.
MR. HUHPHREVILLE: If you could go back to the podium.
And we're going to use the exhibit book for a couple of other
questions, and we'll try to wrap this up. If you'll refer to Exhibit
9 in the petitioner's book, Exhibit 9 is an application for a building
permit to the county to construct the petitioner's home. Is that a
true and correct copy of the application --
MR. LEWIS: Yes, it is.
MR. HUHPHREVILLE: -- Mr. Lewis? And that application
states that the home will have zero setback from the rear property
line?
MR. LEWIS: That's correct.
MR. HUHPHREVILLE: And that zero setback meets the
county's setback requirements as set forth in the Pettrow
interpretation letter?
MR. LEWIS: Yes, it does. That's the same
interpretation that was applied on all four residences that have been
constructed since renourishment.
CHAIRPERSON MATTHEWS: I have a question. I want to
interject right here, because we keep talking about the Pettrow
interpretation letter. Mr. Cuyler, if that is not an official
interpretation, how are we to interpret that ourselves?
MR. CUYLER: The petitioners would argue -- it's
probably best to explain from that point of view. With regard to
estoppel there are several elements. One is something upon which your
reliance is based, either an act or wording on the part of the
county. They're going to say that that is something that was issued
by the county upon which they relied. Even though it wasn't an
official interpretation under the interpretation process, they're
going to say the senior governmental official issued an opinion that
they relied on.
CHAIRPERSON MATTHEWS: Okay.
MR. LEWIS: I would like to say, if I may, you know, you
have to consider yourself if you're an architect and you're doing work
in an area such as Hideaway Beach, and you have a question about the
setbacks and how they would be interpreted and would be applied by the
local building department, okay. If you have a scheduled meeting with
the head official that would have any kind of responsibility,
jurisdiction, interpretation toward that area of expertise, you have a
meeting, you have the discussions, and he sends you a letter on county
letterhead, okay, documenting that, I think you would understand that
as an architect you would feel that would be a legitimate letter to
use as a reference and as a design guide to follow. I don't know who
else to talk to to do so.
CHAIRPERSON MATTHEWS: I understand. I'm just
questioning the difference between an official interpretation -- MR. LEWIS: Sure.
CHAIRPERSON MATTHEWS: -- and Mr. Pettrow's letter.
MR. HUHPHREVILLE: Mr. Lewis, after the Gibson building
permit application had been submitted to the county, but prior to the
county's granting of that building permit, did you meet with county
officials concerning the application?
MR. LEWIS: Yes, we did, approximately three times.
There was a span of six weeks between the time we applied for the
permit and the time that the application was approved. There were
various meetings. Host of them were concerning the structure. They
were concerning FEMA guidelines, breakaway, velocity design,
et cetera. Again, all those issues we addressed. Specifically the
concern was over the design and location of the swimming pool, the
original design having the swimming pool elevated to the main living
level which would be, you know, 9 feet above the existing grade. And
between many discussions, and I understand the county had discussions
with DCA, we made phone calls to FEMA in Atlanta. We came to the
conclusion that to comply with FEMA standards, the pool should be
dropped in the ground, and we did that revision to facilitate that.
And after those concerns were resolved, the permit was approved, but
there were -- again, none of the discussions during permitting were
regarding a 50-foot setback from the erosion control line at all.
MR. HUHPHREVILLE: So after fully exhausting the various
issues affecting the granting of the building permit, including the
appropriate setback, the building permit was granted on September 24,
19947
MR. LEWIS: That's correct.
MR. HUHPHREVILLE: And there is a copy of that building
permit found in petitioner's exhibit book as Exhibit 10. Mr. Lewis,
is Exhibit 10 a true and correct copy of the building permit? MR. LEWIS: Yes, it is.
MR. HUHPHREVILLE: As personal architect for the
Gibsons, were you on the job site to monitor -- regularly on the job
site to monitor the progress of construction?
MR. LEWIS: Yes, I was. During the -- this time period
I had designed the renovation to the sport center at Hideaway Beach,
and I was on a daily basis inspecting that construction. So while I
was on the property, I would typically go by the Gibson property to
see if construction had started to see what the current situation was.
MR. HUHPHREVILLE: And construction began approximately
when?
MR. LEWIS: October the 6th through the 12th, I believe,
is when the --
MR. HUMPHREVILLE: When the slab was poured?
MR. LEWIS: No. That's when the pilings were installed;
they were driven. And then the slab was poured November the 12th, I
believe.
MR. HUHPHREVILLE: During your regular visits to the
site, did you observe any beach maintenance by the association?
MR. LEWIS: Yes. And I'm sorry. I said November the
12th. It was November the 21st when the slab was actually poured.
And, yes, I did notice walking the job site the surveyors had put
stakes at the points on the parking lines, the two parking lines for
locating the erosion control line. And all our construction was
landward of the erosion control line. It wasn't a problem. But I was
surprised in walking around the beach that I'm -- if you stood on Mr.
Gibson's property and looked in both directions, there was raking of
the beach occurring, and that raking was angling in into Mr. Gibson's
property on both sides, and I was surprised that the raking, cleaning
of the beach, which would be removing any vegetation that was there,
was occurring approximately 18 to 20 feet landward of the erosion
control line. And I didn't understand why they would be raking that
far in, especially in toward Mr. Gibson's lot. And I did talk to the
association about that, and they could not tell me why that was being
done in that manner.
MR. HUHPHREVILLE: But the raking has caused some
destruction of the vegetation? MR. LEWIS: Yes, it has.
MR. HUHPHREVILLE: On or about December 9th the county
issued a red tag order on the building permit because of questions
raised by the attorney representing the adjacent property owner
concerning the setbacks. Are you familiar with the red tag? MR. LEWIS: Yes, I am.
MR. HUHPHREVILLE: What action in response to the red
tag did you take as architect for the petitioner?
MR. LEWIS: Well, when I first found out about the red
tag, the verbiage was possible setback violation, and I was very
surprised that a red tag would be issued with that type of verbiage.
My understanding, that a red tag would be done on known violations,
and the verbiage was possible setback violations, so I immediately
called the county to discuss that. We set up a meeting. The red tag
was issued on a Friday. We had a meeting on Monday. During that
meeting the discussions were, again, we've been informed that the
construction is seaward of the erosion control line. We said, no, the
plans have not changed. The construction is landward of the erosion
control line based on the permit documentation, based on the survey
documentation. They said the request was made, if you can -- if you
will produce a survey, even though it's not normal procedure, bring us
this documented survey which will locate the construction that's
occurring on that lot, and it is landward of the erosion control line,
then we will release the red tag order. Two days later the survey was
produced. It was submitted, which was on Wednesday, and that Friday
the red tag was lifted based on the fact that the survey documented
all construction was landward of the erosion control line. That was
-- that was the only concern at that time spoken to me that referred
to that red tag.
COHMISSIONER HAC'KIE: Just for me to get clarified,
this isn't the yellow tag we're talking about?
MR. LEWIS: No, ma'am. This was a red tag that was
issued in mid-December. The yellow tag was issued in February.
MR. HUMPHREVILLE: Mr. Lewis, there's a copy of that red
tag in the petitioner's exhibit book as Exhibit 11. Is that a true
and correct copy of the picture of that red tag?
MR. LEWIS: Yes, it is, except you cannot distinguish it
in this small picture.
MR. HUMPHREVILLE: But there will be another witness who
will be shown a blown-up version of that red tag. We don't have the
original red tag itself. The county records do not contain the
original red tag, but we have a photograph of the red tag showing --
CHAIRPERSON MATTHEWS: Okay. We accept that it was red
tagged.
MR. HUMPHREVILLE: And the survey was found, Exhibit 12
that was submitted, Petitioner's Exhibit 127 MR. LEWIS: That's correct.
MR. HUMPHREVILLE: And the red tag was lifted. Did the
county notify you or the petitioner that they had any further concerns
regarding the appropriate setback for lot 14 until February 17th? MR. LEWIS: No, they did not.
MR. HUMPHREVILLE: And on February 17th the county
issued a yellow tag letter to the petitioners informing them that
pending final determination, that the survey on record with the county
accurately depicts the mean high waterline and reproperty line -- rear
property line and that the future work should proceed at the
petitioner's risk. Are you familiar with that yellow tag? MR. LEWIS: Yes.
COMMISSIONER MAC'KIE: May I interject just for a
second, please, because this seems to me to be an example of something
we could submit for the record.
MR. HUMPHREVILLE: Well, it's important in that it
establishes from our perspective that the county has looked at this
issue of setbacks over and over again.
COMMISSIONER MAC'KIE: But you've submitted that in
written form, so if you want his comment --
MR. HUMPHREVILLE: Yellow tags, not red tags. Mr. Lewis
is a fact witness. We have an obligation to have that reflected on
the record, and I'm about ready to wrap it up.
COMMISSIONER MAC'KIE: I'm asking the chair if she might
suggest that to the extent that this is written evidence that you've
already submitted, the factual part of it could be -- the written
submission would be enough, and we don't have to go through all of
this.
CHAIRPERSON MATTHEWS: I -- I would ask that because,
frankly, I'm not hearing anything different than what I haven't seen
in here.
MR. HUMPHREVILLE: We would certainly ask that you
carefully examine the petitioner's memorandum and that be reflected in
the record. A couple questions, and we'll wrap -- wrap up, two or
three more.
CHAIRPERSON MATTHEWS: Please.
MR. HUMPHREVILLE: Thank you. Did the county after they
issued the yellow tag ever give an interpretation under that yellow
tag? Did they take any further action under the yellow tag? MR. LEWIS: No, they did not.
MR. HUMPHREVILLE: But they did on February 23rd issue
interpretation 94-4 stating that the 50-foot setback from the erosion
control line was required?
MR. LEWIS: Yes, they did.
MR. HUMPHREVILLE: You're familiar with that
interpretation letter?
MR. LEWIS: Yes. I was very surprised that that
interpretation came out as it had no reference to the yellow tag or
the previous issues. Again, we've been through red tags. We've been
through yellow tags, and never had this 50-foot issue come up, and all
of a sudden in February, five months after the permit, four months
after construction and two months after a red tag, a new issue comes
up. And I do appreciate the board's indulgence, and this is one
afternoon, but honestly, my life has been on hold since this
interpretation letter. And it's been an absolute nightmare. It has
not been fun, and I really do appreciate your indulgence today and
patience here.
MR. HUHPHREVILLE: Madam Chairman, I have no further
questions.
CHAIRPERSON MATTHEWS: You have no further questions.
Mr. Arnold, do you have any questions? Mr. Arnold,
do you have questions?
MR. ARNOLD: I have a couple questions of Mr. Gibson if
I could, very brief questions just to clarify --
CHAIRPERSON MATTHEWS: Mr. Lewis this is.
MR. ARNOLD: I'm sorry, Mr. Lewis.
Was the survey provided for this subject lot and other
subject lots that you've been involved with a certified survey by the
State of Florida for mean high waterline surveys?
MR. LEWIS: I'm sorry. I don't understand the
question. All I can tell you, every survey has been done by a Florida
registered surveyor. There -- I think all the surveys on Hideaway
Beach have been done by three or four surveys.
MR. ARNOLD: As far as you know, they were not approved
by the State of Florida prior to being turned in as the official
survey for these particular lots referencing a mean high waterline?
MR. LEWIS: No. I don't know that that was a standard
procedure for any permitting.
MR. ARNOLD: And that leads to my next question. Could
you please tell me what documentation that you referred to or used in
your determination that there were three distinct methods for
measuring setbacks on Hideaway Beach which you had stated were 50 feet
landward of the mean high waterline or the erosion control line or
landward of the building control line, the more restrictive of those
three lines? Where is there documentation to that effect?
MR. LEWIS: That's strictly based on the written PUD
which gives a documented building control line as a reference line.
It states a 50-foot setback for mean high water, which is in reference
there. Mean high water is referenced on the original plat map at the
bottom there and, of course, the third line is referenced from the
erosion control line established in 1988.
MR. ARNOLD: But the PUD does not specifically reference
the erosion control line?
MR. LEWIS: No. The PUD has never been amended to refer
to the erosion control line.
MR. ARNOLD: And in your understanding and reference to
the specific language of the PUD, Section 4.04, does it specifically
mention that the building control line is 50 feet landward of the mean
high waterline?
MR. LEWIS: No. It defines the building control line as
the platted line. In reviewing the plat you can see the dimensions of
50 feet and a hundred feet, and then the additional 50-foot limit for
the accessory structure adds up to 50 feet.
MR. ARNOLD: Thank you. And as a professional
development representative for property owners on Hideaway Beach and
part of their review committee, were you aware that there was a formal
procedure for determining the appropriate setbacks through the
division 1.6 Collier County Land Development Code in 19927
MR. LEWIS: No, I'm not really familiar with that.
MR. ARNOLD: Thank you.
MR. CUYLER: Madam Chairman, could I ask one question of
Mr. Arnold? Did you check out -- there was a statement made earlier
about the consolidation of two appeals. Did you have an opportunity
to check that?
MR. ARNOLD: I did check. My record reflects that the
second appeal referenced by Mr. Doyle was, in fact, sent to the
building board of adjustments for a request for them to hear the
setback issue relative to this particular lot. The building official
at that time returned their check and determined that this was not an
appropriate issue for the building board of adjustments to hear and
that the setback issue was one that the board of adjustments should
then proceed with. I have no record of further interpretation, a
appeal being filed with Collier County to that effect. MR. DOYLE: May I address that?
MR. CUYLER: Madam Chairman, if Mr. Doyle wants to
address that. Then I'd like to address the board real quickly.
CHAIRPERSON MATTHEWS: Okay.
MR. DOYLE: It is my understanding that I was incorrect
when I told the board that they had been consolidated for appeal.
What we were told was that it was not necessary to proceed with the
building appeals, because this matter would take care of what we had
appealed in two different forums. The question has now arisen from
Mr. Cuyler as to whether we should be raising here the issues of
estoppel.
MR. CUYLER: Well, the way that I was going to address
that is -- and, Commissioner Mac'Kie, specifically since you brought
it up early on in the hearing, and I think the last witness has
brought it a little more to light for me, the last witness's
testimony, you can correct me if I'm wrong, was almost exclusively as
to the estoppel argument. It really didn't go to the current
interpretations, really past interpretations and past procedures.
As far as I'm concerned, I think the board can approach
this from the perspective that you can consider the estoppel evidence
to the extent that you want to, and it's relevant to the extent that
you think it is relevant. If you want to say today we understand
there may be an estoppel argument, we don't want to hear anything
about it, go to another venue and get a decision from court, you have
the ability to do that. If -- if you want to say, no, we need to hear
this, we need to really understand what the situation is so that we
will be able to make an informed decision, then this type of testimony
is as relevant as you deem it to be. And the reason I say that is
that if we're here at 10:30 at night or ten o'clock at night, I want
you to understand that there are two issues. One is the
interpretation itself, and the other is all of this estoppel
argument. I'm not saying that it's not relevant. I'm saying you can
consider it relevant, but if you don't want to hear it, I don't think
you have to hear it.
CHAIRPERSON MATTHEWS: Commissioner Hancock.
COHHISSIONER HANCOCK: For my 2 cents, I don't think I'm
an adequate judge of whether something's adequate for an estoppel
argument or not. I would have to agree --
CHAIRPERSON MATTHEWS: I hardly even know what the word
means.
COHMISSIONER HANCOCK: I have trouble spelling it, much
less deciding what it means. You know, I just don't think this is the
venue for that. I don't feel comfortable making that kind of decision
myself.
CHAIRPERSON MATTHEWS: Commissioner Hac'Kie.
COHMISSIONER MAC'KIE: As anxious as I am to get home to
my kids, even though we aren't judges and can't make a decision about
whether something rises legally to estoppel or not, this is our chance
to tell our attorney, go fight them on this or don't go fight them on
this. If we don't hear the estoppel part of this discussion tonight,
when will we hear it so that we can tell Mr. Cuyler go defend us in
court or, nah, they're right, we really are estopped?
MR. CUYLER: Yes, and that is the downside. If you
don't know what's going on, then you can't make an informed decision
as to --
COMMISSIONER MAC'KIE: You don't know.
MR. CUYLER: -- whether they have some sort of case or
not.
COMMISSIONER NORRIS: Excuse me. Excuse me. Here we go
once again. We pay Mr. Cuyler to make our legal decisions, because
we're not qualified to do it ourselves. So if he tells us you need to
go to court and fight this estoppel, he'll tell us. If he thinks that
we can't win that, then he should say so. If he thinks we have no
chance in the estoppel arguments -- he knows what they are. We don't
need to know them, because we're not qualified to make the decision
anyway. You may be --
COMMISSIONER MAC'KIE: No.
COMMISSIONER NORRIS: -- but the other four members are
not.
COMMISSIONER MAC'KIE: And I'm not either. And I'm not
a judge, and I'm not qualified to make it. But it's a critical
distinction, and I know we're not going to have this debate tonight,
but it is important that we know. He does not make our legal
decisions for us. He gives us advice, and we make the decisions. How
are we going to make a decision about estoppel if we don't hear the
facts? How can we tell -- we're just a client. We go say, lawyer,
sue him for us or don't. When are we going to decide whether or not
how to advise our lawyer? We make the decision. He gives us advice.
MR. CUYLER: That's correct. I didn't intend to raise a
controversy. I just wanted to make sure you understood exactly what
was going on.
MR. DOYLE: If I might respond very briefly, and I may
help clear this up, I think that the testimony that you will hear
regarding estoppel is relatively small in terms of the time that it
will take. With all due respect to Mr. Cuyler's opinion, I would
point out to the board that in the opinion provided for us by Mr.
Arnold and addressed to Mr. Kobza -- and, I guess, Mr. Cuyler, I would
ask, is this opinion a part of the record, 94-4?
MR. CUYLER: If it's Mr. Arnold's opinion, yes, it is.
MR. DOYLE: The official interpretation then is a part
of the record. I would point out to the court that -- or to the board
that in the reference its interpretation 94-4, lot 14, block 1,
Hideaway Beach. So this interpretation applies directly to my
client's property. If this interpretation cannot be applied to that
property because of the doctrine of estoppel and we are not allowed to
present evidence to you, we would submit that we are being denied our
due process rights. And, therefore, I believe that we need to be able
to go forward with and present that evidence to you as a part of this
proceeding.
COMHISSIONER HANCOCK: I think the question has been
answered. If you feel the need to present it, then you're going to
have to present it, because I can't go against the advice of our
county attorney.
CHAIRPERSON MATTHEWS: Our county attorney says we need
to become informed so that we can --
COMMISSIONER HANCOCK: I hate it when that happens.
CHAIRPERSON MATTHEWS: -- listen to his advice more
intelligently.
Mr. Kobza, can you wrap up your cross-examination very
quick, because I understand our dinner is here?
COHMISSIONER MAC'KIE: We're not sharing.
MR. KOBZA: You'll have dinner.
CHAIRPERSON MATTHEWS: How -- how long do you think this
is going to take?
MR. KOBZA: About 2 minutes.
CHAIRPERSON MATTHEWS: Good. The clock is on.
MR. KOBZA: Mr. Lewis, you testified just now that the
erosion which you saw on the Gibson residence was the product of beach
raking?
MR. LEWIS: No, I did not.
MR. KOBZA: I'd like to show you a picture that was
taken of a -- you designed the Gibson residence; correct? MR. LEWIS: Yes, I did.
MR. KOBZA: And you designed the location of the slab;
is that correct?
MR. LEWIS: Yes, I did.
MR. KOBZA: Okay. The picture of the slab and its
location in January of 1995, you designed that?
MR. LEWIS: Yes, I did.
MR. KOBZA: And you --
MR. DOYLE: If I may object at this point, Madam
Chairman, where the slab is is a question of fact. And if it's
forward of where the setback line is, then it's in violation.
MR. KOBZA: He specifically --
MR. DOYLE: Excuse me. If I can finish my objection.
MR. KOBZA: He specifically testified --
CHAIRPERSON MATTHEWS: Mr. Kobza, hold on a second.
MR. DOYLE: My point is that nothing about this
photograph or anything about erosion is relevant to the issue of
interpretation of the ordinance and, therefore, we do not believe that
the board's time should be wasted with this.
MR. KOBZA: Mr. Doyle, your co-counsel specifically
asked this witness whether beach raking was the cause of the
renourishment -- or was the cause of the erosion in the vicinity --
MR. LEWIS: Could we read the record, please? I don't
believe that was the question.
MR. KOBZA: That was the question.
MR. LEWIS: Well, could we read the record, please?
MR. KOBZA: Let me just ask you this question. You're
not contending, are you, that the erosion of this slab as it existed
in 1995 was the product of beach raking, are you?
MR. LEWIS: I'm not suggesting anything about erosion
currently.
MR. KOBZA: Thank you. No further questions.
CHAIRPERSON MATTHEWS: Thank you. We're going to take
about a 15-minute break and have some dinner, because I think we're
going to be here a while yet. Thank you.
MR. CUYLER: How long?
CHAIRPERSON MATTHEWS: 15, 20 minutes, that's all.
COHMISSIONER MAC'KIE: Where are we in the two-hour
case?
CHAIRPERSON MATTHEWS: There are six witnesses, and
we've had two.
(A short break was held.)
CHAIRPERSON MATTHEWS: Let's reconvene the board of
commissioners' meeting for July 18, 1995. And we are in the midst of
listening to the appeal on Hideaway Beach. Mr. Doyle, you want to continue?
MR. DOYLE: Yes, if we could, Madam Chairman.
CHAIRPERSON MATTHEWS: I would appreciate if we can find
a way in the next couple of hours to speed this along and, you know,
we have this book that has excellent information in it, and most of us
have already reviewed it, if not all of us, I hope. Mr. Anderson.
MR. ANDERSON: Good evening, Madam Chairman. In an
effort to speed things along, I'd like to distribute a full-color
reproduction of Exhibit 11 in your booklet for you to insert in
there. It's a copy of the red stop work order that was issued in
December. We would call --
MR. DOYLE: Are we substituting that for the other paper
that's in there?
MR. ANDERSON: Yes, yes.
COHMISSIONER HANCOCK: Oh, to be substituted?
MR. ANDERSON: This is to substitute.
CHAIRPERSON MATTHEWS: Thank you.
MR. ANDERSON: We would now call Wayne Arnold as a
witness.
CHAIRPERSON MATTHEWS: Mr. Arnold.
MR. ANDERSON: Mr. Arnold, I want to take care of a
couple of preliminary matters that were covered in your introductory
remarks, and I would refer the commission to page 9 of our memorandum
of law.
COHMISSIONER MAC'KIE: I'm there. Page 97
CHAIRPERSON MATTHEWS: Yeah.
MR. ANDERSON: Okay. I was waiting for Mr. Arnold to
get there too. Mr. Arnold, in your opening remarks you stated that
the definition of setback in the Land Development Code required that
the setbacks be measured from the property line. And when the
building permits were issued for the Gibson lot -- structure, the Land
Development Code definition of setback does not read -- did not read
then the same as it did today, does it?
MR. ARNOLD: I'm not sure of the specific date of the
amendment or the date of the application which you may have relied
on. Do you have those dates?
MR. ANDERSON: The application for the building permit
was August 18th -- 17th. The Land Development Code was amended in
April of 1985 to specify that amongst the choices of a shoreline, a
property line, and easement that setbacks were to be measured from the
most restrictive point. That was not a part of the Land Development
Code when the Gibson building permit was issued, nor when your
interpretation was issued.
COMHISSIONER MAC'KIE: What -- may I ask if -- while
it's being looked up, will somebody tell us what it did say then at
the time, I mean, assuming what you said is correct?
MR. ANDERSON: It's set forth in my memorandum of law.
COMHISSIONER MAC'KIE: That's what is page 9.
MR. ANDERSON: Thank you, '95 Land Development Code was
amended.
MR. ARNOLD: Yes. My quotation earlier did cite the
current reading of the Land Development Code.
COMMISSIONER MAC'KIE: Which was not in place at the
time the permit was pulled?
MR. ANDERSON: That's correct, yes. I just wanted to
clear that up.
Mr. Arnold, the structures on lot 12 and 13 that are
next to the Gibson lot, do they meet the 50-foot setback requirement
from the erosion control line which you have interpreted?
MR. ARNOLD: Lots 12 and 13, block 17
Yes.
According to my survey information, they
MR. ANDERSON:
MR. ARNOLD:
would not.
MR. ANDERSON:
correct?
MR. ARNOLD:
And those are Mr. Vasey's lots; is that
My records show the owner of that property
being Mr. Vasey, permit number 874753, with a setback from the erosion
control line for pool and accessory structures of 47.7 feet.
MR. ANDERSON: So they're arguing for a setback
requirement that they themselves do not meet?
COMMISSIONER MAC'KIE: What's the principal structure
setback on that property?
MR. ARNOLD: I don't have that information. I can
certainly scale off the drawing, but it's going to be somewhere
between 50 and a hundred feet. That's --
COMMISSIONER MAC'KIE: I bet we'll hear it somewhere
tonight.
MR. ANDERSON: Mr. Arnold, would you say that the
current setback requirements in the Hideaway Beach PUD are clear or
ambiguous?
MR. ARNOLD: With respect to which area?
MR. ANDERSON: The Section 404 dealing with special
lots, beachfront lots.
MR. ARNOLD: I think, in my opinion, they're somewhat
ambiguous, but I think they're also clear with reference to property
lines.
MR. ANDERSON: Are the setback requirements capable of
more than one interpretation?
MR. ARNOLD: I think that may be a hard question for me
to answer, but I would have to say yes, it is possible you can reach
other determinations, but that would probably go for other portions of
our Land Development Code as well. MR. ANDERSON: Excuse me?
MR. ARNOLD: I said that would also go for other
provisions of adopted ordinances such as our Land Development Code.
MR. ANDERSON: Isn't Mr. Pettrow's earlier
interpretation more favorable or beneficial to the owner of lot 14
than your interpretation?
MR. ARNOLD: Lot 14 being Gibson's --
MR. ANDERSON: Yes, sir.
MR. ARNOLD: -- subject property? His determination of
a measurement from mean high waterline?
Yes.
Prior to or after the erosion control line
HR. ANDERSON:
HR. ARNOLD:
was established?
HR. ANDERSON:
established.
MR. ARNOLD:
After the erosion control line was
It's my understanding -- maybe someone more
familiar with state statute can tell me, but the erosion control line
also constitutes a mean high waterline.
COHMISSIONER HAC'KIE: In which case your interpretation
of Mr. Pettrow's would have the same effect?
MR. ARNOLD: That's what I'm not sure. I don't have
enough understanding of the state statute to interpret that provision,
but it does state that the erosion control line is a mean high
waterline.
MR. ANDERSON: We do have someone who can later explain
that.
COHMISSIONER HAC'KIE: Thank you.
MR. ANDERSON: Were you aware of Mr. Pettrow's
interpretation letter when you issued your own?
MR. ARNOLD: First, if I might clarify that, I would not
consider Mr. Pettrow's letter to be an interpretation, but as far as
me being aware of his letter at the time I rendered the
interpretation, I was not.
MR. ANDERSON: Yet your own initial interpretation was
very much like Mr. Pettrow's, that the setbacks were not measured from
the erosion control line; isn't that correct?
MR. ARNOLD: I only rendered one interpretation. I'm
not sure what you're referring to.
MR. ANDERSON: Permit me to refresh your recollection.
I show you what has been marked as Petitioner's Exhibit 28. This is a
public record that was obtained from your office under a public
records request. Do you recognize this document as a draft of your
interpretation of how PUD setbacks are applied to the Gibson lot? MR. ARNOLD: I would, yes.
MR. ANDERSON: What is the date of that document?
MR. ARNOLD: January 19, 1994, which I believe probably
should be correctly stated as '95.
MR. ANDERSON: Would you please read aloud the paragraph
that begins at the bottom of page 2 of this document?
MR. ARNOLD: It says, Your statement concerning the use
of erosion control line for application of setbacks is not applicable
in this instance. The building setbacks for the property are
established within the Hideaway Beach PUD ordinance. Construction
requests that have been permitted are consistent with those
provision. Further, the structure is landward of the control line
placing the structure fully on property under the control of property
owner.
MR. ANDERSON: And would you also please read the third
full paragraph on that page, page 3.
MR. ARNOLD: That which has been highlighted?
MR. ANDERSON: Yes, sir.
MR. ARNOLD: Based on the above analysis, it is staff's
finding that the single-family home under construction on lot 14,
block 1, Hideaway Beach subdivision is in full compliance with the
applicable building setbacks and construction standards.
MR. ANDERSON: Isn't it true that you flip-flopped from
this position only after you received a lot of pressure from Mr.
Vasey's attorneys, including a very long letter from Holland and
Knight, the largest law firm in the state?
MR. ARNOLD: I would not say that to be true.
MR. ANDERSON: The date of the Holland and Knight letter
is February 16, 1995, and the date of your final interpretation is
February 23rd. Is that just a coincidence, or weren't you, in fact,
greatly influenced by that letter?
MR. ARNOLD: I wouldn't use the same adjective of
greatly, but I do believe -- adverb, whatever the case may be.
COHMISSIONER HAC'KIE: Adverb.
MR. ARNOLD: Adverb, excuse me. But I would say that
certainly that and additional information that became available to us
was certainly an influence in our interpretation that we formally
rendered.
MR. ANDERSON: Did you consider that your new
interpretation would result in so many nonconformities before you
issued the interpretation?
MR. ARNOLD: It's my recollection that we were aware of
the status of the nonconforming structures at the time we issued the
interpretation.
MR. ANDERSON: Under Mr. Pettrow's interpretation all of
the existing development is in conformance with setback requirements;
isn't that true?
MR. ARNOLD: I don't have any information that would
tell me that that is correct. I have survey information provided
regarding distances from erosion control line and not from mean high
waterlines.
MR. ANDERSON: Have you considered how your
interpretation affects undeveloped lots 15, 16, and 17 next to Mr.
Gibson's?
MR. ARNOLD: Yes, we have.
MR. ANDERSON: Does your interpretation permit the
owners of these vacant lots to build the same type and size of home as
other beachfront homes in Hideaway?
MR. ARNOLD: Our opinion is that it would not
necessarily allow people to build similarly sized homes, which has
been discussed at approximately 6,000 square feet, as the average
square footage of homes built on Hideaway Beach. MR. ANDERSON: I have no further questions.
CHAIRPERSON MATTHEWS: Thank you. Mr. Arnold, I presume
you're not going to cross-examine yourself. Mr. Kobza.
MR. KOBZA: In the interest of time, Madam Chairman, I'm
going to pass on that cross-examination.
CHAIRPERSON MATTHEWS: Thank you. Mr. Doyle, do you
have --
COHMISSIONER CONSTANTINE: That was your best question
so far, Kim.
COHMISSIONER MAC'KIE: Well, while they're switching
witnesses, expect to hear from me again about a hearing officer in the
near future, and remember this when the subject comes up.
CHAIRPERSON MATTHEWS: Yes, ma'am.
Mr. Anderson.
MR. ANDERSON: Which I have also advocated as well, I
might add.
MR. DUANE: I spent six days giving testimony in the
last -- two months ago in one zoning case in front of a hearing
examiner, six days.
COHMISSIONER MAC'KIE: Paid by the hour too, I might
add.
MR. DUANE: It was long days.
COHMISSIONER HANCOCK: Moving right along.
MR. ANDERSON: Would you accept Mr. Duane as an expert
in the field of land use, planning, and zoning?
COHMISSIONER CONSTANTINE: Motion to accept Mr. Duane as
an expert.
COMMISSIONER MAC'KIE: Second.
CHAIRPERSON MATTHEWS: Motion and a second to accept Mr.
Duane as an expert. All in favor please say aye. You're an expert.
MR. DUANE: Thank you.
MR. ANDERSON: Mr. Duane, would you please explain why
you were retained for that project?
MR. DUANE: I was retained to review Mr. Arnold's or the
staff's new interpretation as it applies to rear setback requirements
on Hideaway Beach and to determine, further, whether there was a sound
planning basis for that interpretation that he rendered.
MR. ANDERSON: What did you do as part of your review?
MR. DUANE: I reviewed a number of documents; building
permit files, PUD ordinances, the growth management plan, the coastal
zone element. Those were the principal subjects of my investigation.
MR. ANDERSON: What are your conclusions?
MR. DUANE: My conclusion is that Mr. Arnold's
interpretation is not supported by either the documentation contained
in the PUD ordinance, nor is it, in my opinion, supported by sound
principles and practices of planning as I have practiced them over a
20-year period.
MR. ANDERSON: What is your conclusion that the correct
setback is?
MR. DUANE: My conclusion is that the setback should be
50 feet from the mean high waterline for principal structures as it
was set forth in the PUD document as it was originally adopted. Now,
that is for the subject property lot 14.
Could I have the microphone, Mr. Cuyler?
Commissioners, I know it's a long evening, but I think
in a couple of minutes I can distill the essence of my argument, so if
I could -- if you could bear with me for half a dozen points I want to
make, I think I can hopefully make this very clear to you. Let me
begin first with this --
MR. KOBZA: I object. I think this is beyond the scope
of anything the board's going to consider. You know, we're here to
discuss whether or not this PUD interpretation is correct on the issue
of setbacks. The planning as to what's appropriate in terms of some
future planning or planning principles or whatever, what's that got to
do with the interpretation of the setback issue? I thought we were
going to try to limit this.
CHAIRPERSON MATTHEWS: We are -- we are listening to an
appeal.
MR. KOBZA: This is a PUD discussion right here.
CHAIRPERSON MATTHEWS: We are listening to an appeal of
Mr. Arnold's interpretation. Mr. Duane, I'd like you to confine
whatever you have to say to that appeal.
MR. DUANE: And I'm going to do precisely that.
There are three facts that I need to try to convey to
the board, and I think there's still a misunderstanding here based on
some of the information that you've -- you've heard particularly from
the staff. The building control line, which is this green line here
(indicated) -- and I believe it is Exhibit Number 17, is that correct,
Mr. Anderson?
MR. ANDERSON: Yes.
MR. DUANE: This line meanders for a purpose. It began
55 feet here. It goes to a hundred on the Vasey property, and it
actually goes more than a hundred as you go further down the beach.
There was a reason for that line meandering.
COHMISSIONER MAC'KIE: Which lot is Vasey or whatever
you just said?
CHAIRPERSON MATTHEWS: Vasey.
COHMISSIONER MAC'KIE: Lot numbers?
MR. DUANE: 12 and 13 are Mr. Vasey's property. I
believe it's 70 feet on 13, and it goes to about a hundred on lot 12.
COHMISSIONER MAC'KIE: Thank you.
MR. DUANE: But please understand, Commissioners, that
this line was varied for two reasons; one, to insure the safety of the
owners and, two, because of the configuration of the shoreline, and
the configuration of these lots didn't make it practical to draw a
straight line across them. It was for that reason that the line
meandered. That's fact number one.
Fact number two is the Gibson structure is more than 60
feet from the existing mean high waterline. When we take the staff
interpretation and add 50 feet beyond the -- the erosion control line,
we now are requiring that structure to set back 110 feet from the mean
high waterline. That was never contemplated when this PUD was
adopted, because the building -- principal building setback line was
only 50 feet. And I think that's an important distinction to make.
With regard -- with regard to some other factors here,
the extent of nonconformities are substantial as have been alluded to
on two or three occasions previously today. As you can see, almost
every structure on this existing conditions map is made nonconforming
as a result of the staff interpretation. I would ask you in looking
at this Exhibit Number 17 to recognize that the principal structures
have one color, and the accessory structures have another color. You
can see --
COHMISSIONER MAC'KIE: A concern I have is that when we
first had this brought to our attention, somebody said that this is
its existing conditions which leads me to believe that these are
constructed residences, structures.
MR. DUANE: There are two lots that were permitted but
not constructed.
COHMISSIONER MAC'KIE: That's important. To be fair,
that's -- I don't -- I think that's misleading not to point those out,
so maybe you would tell us which ones those are.
MR. DUANE: This map does just that. The red lots are
the ones that are nonconforming with the district regulations. The
yellow lots are the ones that I consider to be highly impacted. By
highly impacted, they can put substantially less square footage than
was ever contemplated by the development regulations. Again, the
purpose of these regulations and the building control line was to try
to establish a reasonable use of every one of these properties.
COMMISSIONER MAC'KIE: But, Bob, before you go past it,
which -- on the prior exhibit which of those are -- you said there
were two unconstructed.
MR. DUANE: There are two that were permitted. 11 and
12 at this end of the beach were permitted, and number 17 was also
permitted and is, I guess, waiting for this interpretation to be
made.
COMMISSIONER MAC'KIE: So the two ends we could -- as
far as if I want to know what is constructed, take them off.
MR. DUANE: That is correct. You may take those two
off. And I didn't reflect those on the nonconforming use document
here.
The next point I would like to make is that the setback
requirements were always presumed to be different for principal
structures as opposed to the accessory structures. All the accessory
structures -- as you can see from Exhibit Number 17, they all jut out
forward of this building control line. That was the purpose that, I
believe, these regulations tried to accomplish, and -- and the reason
for that was because -- going back to the configuration of these
individual lots here. These lots -- take the middle lots, 4 or 3 or
2. You could not put a principal and accessory structure behind the
building control line, so the author or the developer of this project
allowed a provision for those to extend forward of the building
control line but, again, provided they were at least 50 feet from the
mean high waterline, a very important distinction to make. The staff
is trying to tell us just the opposite if you think about it. They're
saying that because an accessory structure had a setback 50 feet from
the mean high waterline, then it would follow suit that the principal
structure has to be set back the same difference, but that's not the
way the regulations were crafted. The accessory structures could go
forward of the principal structures.
COMMISSIONER MAC'KIE: But you just made the opposite of
your point. You just made the opposite of your point. I mean if, in
fact -- the fact that accessory structures can go forward does not
then indicate that, so can principal structures go forward?
MR. DUANE: No. Because the principal structures were
always presumed to be behind the building control line, but the
accessory structures could go forward of that line to enhance the
utility of those lots to allow a reasonable use of them.
COMMISSIONER MAC'KIE: On lot 14 I don't see a different
color that tells me what part of his property is accessory.
MR. DUANE: On lot 14 the setback requirement for
accessory and principal structures would be the same. COMMISSIONER MAC'KIE: Why?
MR. DUANE: Because -- because the principal structure
had to be 50 feet from the mean high waterline, and it is, and the
accessory structure could be no closer than 50 feet from the mean high
waterline. So on 14 the setback requirement for the accessory and the
principal structures was one and the same. As you get further down
the beach, that distinction became much more critical in order to
allow flexibility for siting these development envelopes.
COMMISSIONER MAC'KIE: And you're the planning expert,
and I'm not, but I know that there -- a pool is an accessory
structure. A pool's not a principal structure, so why on this exhibit
don't you show us what part of 14 is accessory and what part is
principal? I mean an accessory structure is a pool, so where is the
pool on 147
MR. DUANE: Well, the -- I didn't distinguish the two --
I didn't distinguish it for number 14 because, for one, the structure
is not -- could I have that exhibit, John, that shows the Gibson lot,
please? It's right there, but the point being that the accessory
structure had to be set back the same as the principal structure on
this lot. I don't believe that this exhibit distinguishes the -- the
pool area from the balance of the structure.
COHMISSIONER HAC'KIE: Do you have any idea?
MR. DUANE: I'm sure Mr. Lewis, the architect, can tell
us.
COHMISSIONER HAC'KIE: I don't want to waste -- if I'm
the only person this is relevant to -- if nobody else --
COHMISSIONER CONSTANTINE: No, you're doing good.
CHAIRPERSON MATTHEWS: You're doing fine. Mr. Lewis,
you've got to come forward and tell us about it.
MR. LEWIS: On this particular situation the Fool is in
this area (indicated).
COHMISSIONER MAC'KIE: The Fool is in green?
MR. LEWIS: Well, the Fool is not shown. This is the
principal structure that you see.
COHMISSIONER MAC'KIE: All of the orange is principal?
MR. LEWIS: All of it. All of it is.
COHMISSIONER MAC'KIE: Okay.
MR. LEWIS: The pool is actually adjacent to the
principal structure.
COHMISSIONER MAC'KIE: It comes out as far as the
principal structure?
MR. LEWIS: Yes, it does.
COMMISSIONER MAC'KIE: I see.
MR. LEWIS: Yes, it does.
COMMISSIONER MAC'KIE: So there -- so I --
MR. LEWIS: That is the difference between lots 14, 15,
16, 17, and the other lots.
COMMISSIONER MAC'KIE: See then that causes me more
trouble with this exhibit then, because you showed me accessory
structures on every other lot, but you didn't show me yours on 14.
And -- okay, now, at least I understand it goes out as far, but I
don't understand why you would do that.
MR. DUANE: Well, the reason for that was because the
accessory structure can go no closer than the principal structure on
lot 14, because they have to be set back a minimum, both of them 50
feet, from the mean high waterline. That was a very different
situation for many of these other lots, and that's why I colored them
differently, to show that in virtually every one of those cases --
CHAIRPERSON MATTHEWS: It's the next one down, Mr.
Duane.
MR. DUANE: -- the accessory --
CHAIRPERSON MATTHEWS: That one on the easel.
MR. DUANE: Thank you. In virtually every one of the
development envelopes the accessory structure was permitted forward of
the building control line, but as long as it was 50 feet from the mean
high waterline. Now, under the staff interpretation, as you can see,
with -- with this 50-foot setback here, virtually all of these
structures were nonconforming.
COHMISSIONER HAC'KIE: And I'm going to stop, but I'm
surprised by this point, so I want to be sure that I'm not
misunderstanding it, and I'm genuinely trying to get information
here. What you're showing us is that on these other lots the
accessory structures were -- and this clearly shows -- were permitted
to be seaward of the building control line, but in this case it's the
principal structure that's at issue, not the accessory structure. MR. DUANE: The principal --
COHMISSIONER HAC'KIE: So the case -- I mean, I
understand that you're saying that the principal structure -- no, I
don't understand it.
COHMISSIONER HANCOCK: I think I -- if you'll notice,
lots 14 through 17 are the only ones in which the building control
line is seaward of the erosion control line. Therefore, it's out of
play as far as regarding accessory or principal structures. The only
one that you pay attention to now is the erosion control line,
according to what Mr. Duane is saying, okay.
COHMISSIONER HAC'KIE: That happens on the other end,
too, though, Tim.
COHMISSIONER HANCOCK: It does on 11 and 12, but that's
not built yet. That's a battle yet to be fought yet I'm assuming.
COHMISSIONER HAC'KIE: 8 and 4, 3. 8 and 4.
COHMISSIONER HANCOCK: But the accessory structures go
past the building control -- building control line but not past the
erosion control line. It's the same situation. It's just that in 14
through 17 that building construction line is seaward of the erosion
control. Therefore, it's out of play as far as what can or can't be
located up to it.
MR. DUANE: Thank you. It was just a critical
distinction made in this ordinance, and I wonder whether the staff
fully appreciates that, because we have an interpretation that now
says because an accessory structure has to be set back 50 feet, now
all principal structures have to be set back 50 feet. They're
equating the setback requirements for the two uses when the ordinance
always presumed that there would be somewhat more flexibility for the
siting of these accessory structures. That's why they're all jutting
out forward of the building control line.
COHMISSIONER HAC'KIE: But you're wanting flexibility
for a principal structure, and typically principal structures are set
back farther than accessory structures.
MR. DUANE: That cannot apply the way that these
development regulations are structured. COHMISSIONER HAC'KIE: Okay.
MR. DUANE: That's the point I'm trying to make. Throw
the book out with regard to that. These regulations were specifically
crafted to -- to overlay the existing conditions of that property.
They were designed specifically to try -- to try to provide a
reasonable use for each lot. That's why my client was allowed to
build 50 feet from the mean high waterline. But look how much more
depth there is on lot 13. That's why the building control line went
from 50 to a hundred feet. Yeah, it was done for a very specific
purpose.
COHMISSIONER HAC'KIE: Lot specific.
MR. DUANE: Very lot specific. I struggled to get that
point across, but I think you understand that. It's an important
distinction. That's principally why I disagree with Mr. Arnold's
conclusion. It forgets all the planning history that went into
crafting these land development regulations. And I believe there were
three structures issued after 1990, and those -- those are just right
at the building control line. They are not 50 feet beyond the erosion
control line.
Mr. Anderson, would you like to continue with the
questioning?
MR. ANDERSON: Yes. Since you're talking about where
the accessory structures are located and oriented and such, are -- on
these beachfront lots along Hideaway, are the -- is the accessory
structure always located behind the home, or is it oriented
differently on any of the lots?
MR. DUANE: No, there -- they all have the same -- the
same pattern of development, the accessory structure located in front
of the principal structure, which could not be more than 50 feet from
the mean high waterline.
COMMISSIONER MAC'KIE: In front of seaward -- in front
of means seaward of? I'm trying to define the front and the back.
Close to the water or close to the road?
MR. ANDERSON: Close to water. Close to water.
Are they all oriented the same? All the homes oriented
the same then?
MR. DUANE: Yes, they are, Mr. Anderson.
MR. ANDERSON: In your professional opinion, is it
consistent with sound and established planning principles to change an
interpretation or make an interpretation or amend the zoning
regulation that renders existing structures nonconforming?
MR. DUANE: No. My experience has been you -- you --
you bend over backwards not to create nonconforming structures. You
do everything that you can, you know, short of -- of creating a public
health and safety welfare problem to make your structures conform.
There's a reason for that, because if they're damaged in excess of 50
percent, then you have to tear the whole structure down. You pose a
significant hardship on the existing property. And in almost every
case here, if we were to have some kind of an unforeseen event over
the weekend, all these people might have to tear their houses down.
They didn't have to before this interpretation, but I'm, of course,
arguing that it's the wrong interpretation. Mr. Anderson.
MR. ANDERSON: Mr. Duane, come look at this exhibit. Do
you notice any difference in the orientation of the accessory
structures on -- on any of these lots?
COMHISSIONER MAC'KIE: Which are you pointing to?
COMHISSIONER HANCOCK: 5 and 6.
MR. ANDERSON: Turn to --
MR. DOYLE: Exhibit 6.
MR. ANDERSON: -- Exhibit 6, please, in your -- in the
booklet, particularly the second photograph.
MR. DUANE: Yes, there is a difference. Most of the
houses will front directly onto the pass, if I can call it that. The
Vasey lot has a little different orientation. Rather than, you know,
being a straight line, the orientation of his property is somewhat to
the -- somewhat to the north. So it does have a different orientation
than other lots.
MR. ANDERSON: Would you say it's oriented towards the
pass or towards lot 147
MR. DUANE: It's oriented more towards lot 14.
MR. ANDERSON: Okay. I have no further questions for
this witness.
CHAIRPERSON MATTHEWS: Mr. Arnold, do you have
cross-examination?
COHMISSIONER MAC'KIE: Mr. Arnold, can I ask you a
question?
MR ARNOLD: Yes.
COHMISSIONER MAC'KIE: Do you agree with the statement
that under your interpretation, if -- if we had a hurricane this
weekend and these houses all blew down and they were destroyed more
than 50 percent, because the accessory structures are seaward of the
erosion control line, they couldn't be rebuilt?
MR ARNOLD: My argument would be that any structure
demolished by more than 50 percent in any event could only be rebuilt
in conformance with the interpreted line of 50 feet from the erosion
control line.
COHMISSIONER MAC'KIE: But the effect of that would be
that all of these houses that they've --
MR ARNOLD: All the pool structures and other
accessories. And I think the distinction here is with the exception
of Mr. Gibson's property, the erosion control line and 50-foot setback
issue we're discussing affects accessory structures. And you did
state that point very clearly, that the Gibson property is the only
one where the principal structure is also affected by the 50-foot
setback
COHMISSIONER MAC'KIE: And that's why -- that's why my
question. If accessory structures seaward of the erosion control line
are destroyed more than 50 percent, is it the accessory structure that
is then nonconforming and can't be reconstructed, or is it -- does the
house have to be torn down?
MR ARNOLD: It would be my opinion that only the
accessory structure.
COHMISSIONER MAC'KIE: Okay.
CHAIRPERSON MATTHEWS: Commissioner Constantine.
COHMISSIONER CONSTANTINE: Mr. Cuyler, is it appropriate
for us to recognize Mr. Arnold as an expert?
MR CUYLER: Mr. Arnold, I'm sure at some point in the
proceeding, is going to request you recognize him as an expert in
planning.
MR. ARNOLD: I can certainly do that now.
COHMISSIONER CONSTANTINE: I make a motion we recognize
Mr. Arnold as an expert. COMMISSIONER MAC'KIE: Second.
CHAIRPERSON MATTHEWS: We have a motion and a second to
recognize Mr. Arnold as an expert in all -- COMMISSIONER MAC'KIE: In planning?
MR. ARNOLD: Yes, planning. If you need a statement of
qualification, et cetera, I'd be happy to provide that. COMMISSIONER MAC'KIE: A resume or something.
MR. CUYLER: I think -- I think the board is familiar
with your qualifications. And if the board acknowledges that, that
should be fine.
COMMISSIONER HANCOCK: He's been recognized before.
MR. ARNOLD: Thank you.
CHAIRPERSON MATTHEWS: I'll call the question. All in
favor please say aye.
Opposed?
There being none, Mr. Arnold, you are an expert.
Commissioner Hancock.
COMMISSIONER HANCOCK: Mr. Arnold, before we get to
that, you said that the Gibson residence would be the only principal
structure affected in a catastrophic event; all others would be
accessory. I'm looking at lot number 8 in block 2, which is, I
believe, an existing structure and Lots 11 and 12 in block 2 which is
a permitted but not yet built structure, and I see a 50-foot setback
line crossing through the principal structure on both of those. Block
2, lot 8, I see a -- the 50-foot setback from the erosion control line
crossing through the principal structure. I understand this is not a
survey --
MR. ARNOLD: Uh-huh.
COMHISSIONER HANCOCK: -- but the proposed structure on
11 and 12 I see the line bisecting the principal structure.
MR. ARNOLD: Right. That permit is basically invalid.
It was a 1990 permit. It is expired. There's no construction on that
lot.
COMHISSIONER HANCOCK: Okay, 11 and 127
MR. ARNOLD: Lots 11 and 12 --
COMMISSIONER MAC'KIE: This seems to be a real valid
point we haven't heard before. It's not a valid permit?
MR. ARNOLD: That's correct. It's an expired building
permit.
COMHISSIONER HANCOCK: Okay. Then lot 8 --
MR. ARNOLD: Lot 8 is one that I can't give you a
specific answer without looking at the survey for that property. It
would appear from this diagram as well --
COMMISSIONER HANCOCK: But I understand it's not a
survey. But that's why I was begging the question. I have an exhibit
that differs from the testimony you've given, and I'm just -- I don't
know that we can --
MR. DUANE: This is Exhibit Number 20.
MR. CUYLER: Mr. Duane, you need to be on a mike, and
you need to be recognized. Was there a question asked?
CHAIRPERSON MATTHEWS: Mr. Arnold, did you have
additional cross-examination?
MR. ARNOLD: Yes. I did have a question for Mr. Duane.
And that would be you stated as fact, Mr. Duane, that the
configuration of the building control line was due to the shoreline
configuration, and other points during your testimony you also cited
that you knew for a fact the basis for the establishment of this
line. I have reviewed the original PUD file. I have reviewed the
environmental documents in effect at the time. I've reviewed the
environmental impact statement. I cannot conclusively determine the
basis for determining a 50-foot setback for part of this and a hundred
feet on the other. How can you arrive at that conclusion?
MR. DUANE: First of all, I didn't limit my response to
only the contour of the shoreline. I said it had to do with the
configuration of the lots and the depth of the lots and the
configuration of the shoreline. And, again, I used the example, if
you -- if you drew a straight line across all these properties, you
couldn't put much of anything on 17, 16 --
MR. CUYLER: Mr. Duane, but the question was, do you
know as a fact how the PUD was put together and what the basis for the
PUD was.
MR. DUANE: It is the only logical conclusion I can draw
from all the information that I have.
MR. ARNOLD: So that is your opinion?
MR. DUANE: That is my opinion.
MR. ARNOLD: Thank you.
MR. DUANE: I would also just like to make one more
point to the commissioners. If Mr. --
CHAIRPERSON MATTHEWS: Mr. Duane, I'm sorry. Mr. Arnold
is cross-examining, and he's apparently finished.
Mr. Kobza.
MR. GOODLETTE: Madam Chairman, I was going to ask only
a couple of questions, but the lawyer who proceeded me, Mr. Arnold,
did a better job than I did, so I'm going to pass.
CHAIRPERSON MATTHEWS: Thank you. Mr. Doyle, next
witness.
MR. DOYLE: We would now call Mr. Bill Gibson.
CHAIRPERSON MATTHEWS: Mr. Gibson. Is this your last
witness, sir?
MR. DOYLE: We are going to have one additional but very
short witness in response to a statement that was just made by Mr.
Arnold during his testimony.
COMHISSIONER MAC'KIE: Questioning.
MR. DOYLE: During his fourth opportunity to testify.
MR. GIBSON: I am Wayne Gibson, last name is Gibson,
G-i-b-s-o-n, the co-owner of lot 14.
MR. DOYLE: When did you purchase lot 14, Mr. Gibson?
MR. GIBSON: I purchased lot 14 in -- it seems like a
lifetime ago, Mr. Doyle. In March of 1994.
MR. DOYLE: And what was the purpose for your purchase?
MR. GIBSON: The purpose was to build a home for -- for
my mother and for my family to share.
MR. DOYLE: How did you go about selecting lot 147
MR. GIBSON: I -- a long answer, but I originally
attempted to purchase jointly Lots 16 and 17. The cost of those twos
lots was -- was exceptionally high considering the footprint at the
time I thought was available in 16 and 17. Based on what's happened
to date, I'm -- I'm even more thrilled I didn't choose 16 -- 16 or
17. But not having been able to afford them, I then sat down with the
-- with the salesperson, the real estate salesperson, and reviewed
every other lot on the beachfront in Hideaway, specifically focused on
those that were potentially for sale and chose lot 14 because it -- it
had, as best we were able to understand, the largest -- or the
footprint which would most effectively accommodate the size home we
were interested in building.
MR. DOYLE: After your purchase what did you do in
preparation for building your home?
MR. GIBSON: If you wouldn't mind my adding one other
thing, which is one of the things that bothers me greatly. Before I
made an offer to purchase the home, I very specifically wanted to
validate that what I thought and what my real estate person thought
would be the envelope that would be available to build the home on was
correct. And we went to the Hideaway association and asked them to
verify that our interpretation of this -- of the area which we could
build within was the correct interpretation. We were referred to the
architectural review committee, Mr. Lewis. And Mr. Lewis very
specifically indicated that he had had an opinion from the County of
Collier which verified our interpretation of this -- of the -- of the
footprint we had to work with was the correct amount of space for us
to build the home. And it was only then based on that knowledge of
what the Collier County position was as well as the Hideaway position
was that we went ahead and negotiated and purchased the lot.
MR. DOYLE: After your purchase what did you do in
preparation for building your home?
MR. GIBSON: We -- I -- I had been -- become doubly
impressed with Mr. Lewis's knowledge of -- of -- of what the -- what
the appropriate rules were within Hideaway, and I'd been impressed
with some of the architecture he had showed me of other works he had
been involved with, that we selected him as the architect feeling
comfortable that here was the person most effectively able to execute
within the confines of the restrictions that were available to us.
MR. DOYLE: Did he prepare plans that you then used in
applying for a building permit? MR. GIBSON: Yes, he did.
MR. DOYLE: After you received your building permit,
then you began construction on the lot? MR. GIBSON: As soon as we could.
MR. DOYLE: Are you aware that the work was stopped in
December of 19947
MR. GIBSON: Yes, I am.
MR. DOYLE: Were you made aware of the reason for that?
MR. GIBSON: I was -- I was told there were questions
involving the survey. My neighbor had challenged the accuracy of the
survey and said I was not acting within I think what are called the
building control lines or the erosion control lines and, therefore, we
asked that another survey take place.
MR. DOYLE: In keeping with the board's request that we
make this as short as possible, you have previously signed an
affidavit which is Exhibit 24 in our packet. Does that affidavit
correctly reflect the cost you have incurred for your construction
project in Exhibit A?
MR. GIBSON: It did project the cost --
COMHISSIONER MAC'KIE: Before tonight.
MR. GIBSON: At the time there have been incremental
expenses both in the architectural fees as well as in the legal area.
MR. DOYLE: And the Exhibit B to your affidavit has to
do with potential future cost. Is that accurate to the best of your
knowledge?
To the best of my knowledge, yes, it is
MR. GIBSON:
accurate.
MR. DOYLE:
MR. GIBSON:
MR. DOYLE:
But it is an estimate; is that correct?
That is correct.
Prior to February of this year, did any
Collier County official ever tell you that there was a requirement
that you build with a setback of 50 feet or any other distance from
the erosion control line?
MR. GIBSON: No, there was not.
MR. DOYLE: Did anyone ever suggest that you needed to
comply with any setback from the erosion control line?
MR. GIBSON: One of my phone calls I received in
December from my neighbor, he told me that I wasn't allowed to build
in that area, that the opinions I had received from the county at that
time which had approved -- had reviewed the red tag and said, no,
you're fine, you can go ahead. He said the county's wrong and the
Hideaway architectural review is wrong, and others are wrong. But
that's the only person I heard from.
MR. DOYLE: Prior to February of this year when the
yellow tag was issued, were you informed that the county was
considering an interpretation of the setback requirements for your
lot?
MR. GIBSON: No. I wasn't informed that had anything to
do with setback.
MR. DOYLE: I don't have any additional questions.
COMMISSIONER MAC'KIE: I guess I have one.
CHAIRPERSON MATTHEWS: Commissioner Mac'Kie.
COMMISSIONER MAC'KIE: Just as -- as a professional who
gets asked to give opinions from time to time, I know you have -- I am
very, very careful about giving an opinion that Collier County said
this. You know, as much as I don't want to point a finger, you know,
you have -- you will make your estoppel case, and I'm not discussing
that one at this point. But my question is, did your architect tell
you that he had gone through the procedures for formally determining
what was the opinion of Collier County or what was the interpretation
of Collier County, or did he tell you that he had talked with some
people, and they told him that he thought that the proposal was okay?
MR. GIBSON: You're talking about two different -- two
different occasions. I'm saying before I purchased the home, he
indicated to me then as representing the architectural review
committee, not my architect at the time -- COMMISSIONER MAC'KIE: I see.
MR. GIBSON: -- that that was the -- the interpretation
of the Hideaway review -- architectural review committee based upon a
precedent and said beyond that he had a written opinion after the
beach renourishment from the County of Collier that indicated it -- it
was within the appropriate envelope.
COMHISSIONER MAC'KIE: I mean as much as I sympathize
with your position -- but from what you know now, you know that he
didn't have an opinion of Collier County, because now you know what
that officially is. It's going through the request for an official
administrative review and --
MR. DOYLE: Commissioner Mac'Kie, if I could interrupt
at this time, we certainly believe that, in fact, he did have an
opinion of Collier County. While it did not go through the official
interpretation process where he paid his hundred-dollar filing fee, we
believe that he had a legally binding opinion of this county.
MR. GIBSON: Ma'am, and if you wouldn't mind, I would
like to add, I am very sensitive of the challenge and job you have.
It's a thankless job. I've served in that job. I sat in your seat as
a councilperson. I sat in your seat, Madam Chairman, as president of
a -- of a town council and city council earlier in my career. But I
would also say to you I have never hidden behind a lack of opinion.
When someone who has the title that represented me gave a written
statement to others, I would expect -- it's my responsibility to stand
behind it, and I did. I'd like to think I did when I had that same
job you have.
CHAIRPERSON MATTHEWS: Other questions?
MR. DOYLE: I have no further questions.
CHAIRPERSON MATTHEWS: Mr. Arnold, do you have
questions?
MR. ARNOLD: I do not.
CHAIRPERSON MATTHEWS: Mr. Kobza.
MR. KOBZA: In the interest of time, again, I'm going to
forego questions here. CHAIRPERSON MATTHEWS: Okay.
MR. DOYLE: We have just one additional witness. We
would call Nancy Linnan.
MS. LINNAN: I'm Nancy Linnan, L-i-n-n-a-n. I'm an
attorney with Carlton, Fields in Tallahassee, Florida.
MR. DOYLE: Mrs. Linnan's resume is listed as one of the
resumes under Exhibit 26 that we have presented to the commission.
Miss Linnan, it was stated earlier by Mr. Arnold that
the erosion control line and the mean high waterline are the same.
You practice in the area that deals with administrative law, and that
deals with these lines. Is that your understanding?
MS. LINNAN: Yes and no. If it's any consolation to
you, you folks have fallen into the black hole of dealing with coastal
control lines and erosion control lines or whatever.
COMMISSIONER MAC'KIE: Thank you.
CHAIRPERSON MATTHEWS: I'll buy that.
MS. LINNAN: There is one mean high waterline, okay, for
this segment of beach. However, it is located in two separate places
on the beach, so let me try and explain that. If you look at what the
governor and cabinet adopted in 1990, what they do is adopt -- after
they deal with the surveyors and go through the methodology in Chapter
177, they adopt a mean high waterline. That is not always a line on
the beach. It is a vertical datum. It is up and down, and then you
project that onto the beach, because the beach is going to go up and
down and has sinuosities and whatever. In 1990 it was located, and
there was a metes and bounds description of the erosion control line.
That's where it was at that point of time, and that is set solely for
purposes of ownership.
COMMISSIONER MAC'KIE: It was located -- the mean high
waterline --
MS. LINNAN: In 1990.
COMMISSIONER MAC'KIE: It was then called the erosion
control line?
MS. LINNAN: Yes. It then becomes under the statutes
the erosion control line. But there's still -- the mean high
waterline doesn't change. It is still the vertical datum 1.67 MGVD
for this segment of beach. You then pile the sand up after you
renourish the beach, and when you project that line, it's going to
change. It's going to be farther out in the water. So it's one
line. At that time it was set it was the erosion control line.
That's all it does, just boundary. There is still a mean high
waterline. It is now farther out in the water.
MR. DOYLE: Thank you, Miss Linnan. If we may have just
one moment, Madam Chairman.
MR. ARNOLD: You're finished?
CHAIRPERSON MATTHEWS: Mr. Arnold, do you have
questions?
MR. ARNOLD: I'm not sure if this question is
appropriately directed at Hiss Linnan, but I would like to ask if you
could possibly explain the methodology by which mean high waterline is
determined. I've heard two numbers here tonight, 1.67 vertical datum
item, which you cited, which is in the resolution regarding the
erosion control line establishment. The survey provided by Mr.
Gibson's representative shows a mean high waterline of 1.5 feet. Can
you please explain to me the distinctions between those and how they
might have arrived at that being the mean high waterline?
MS. LINNAN: Mr. Walther is here. I believe he would be
the most -- the best person to explain that.
COHMISSIONER MAC'KIE: Are we going to hear from him
later?
MR. DOYLE: We would be glad to have him answer that.
We did not intend to call him, but we would be glad to have him answer
that question.
CHAIRPERSON MATTHEWS: Okay. Can we hear from him?
MR. CUYLER: Do you want to hear from that witness, or
do you want further cross-examination?
CHAIRPERSON MATTHEWS: Well, let's finish with this
witness first, and then we can have him.
MR. ARNOLD: If I could go back, I think I misstated
something there which -- the distinction would have been, I think,
going back to Mr. Lewis's testimony, that the 1.5 feet was used in his
so-called interpretation rendered by Mr. Pettrow's determining these
mean high waterlines. The petitioner did use the 1.67 established
through beach renourishment. I'm trying to clarify how he then
determined to use the 1.67 versus the 1.5 that Mr. Pettrow stated he
should use.
MS. LINNAN: I just can't speak to that.
MR. ARNOLD: I'll ask Mr. Lewis that question.
CHAIRPERSON MATTHEWS: Okay. Mr. Kobza.
MR. KOBZA: Ms. Linnan, really two questions. You're
familiar with the Beach Renourishment Act, Chapter 1617 MS. LINNAN: Yes, sir.
MR. KOBZA: So you're familiar with 161.1417
MS. LINNAN: Yes, sir.
MR. KOBZA: Okay. And you're -- you understand that
under that section, 161.141, beach renourishment is not to be used as
a predicate to increase the density or intensity of development; is
that a correct statement?
MS. LINNAN: That's --
MR. KOBZA: That's exactly what the statute says; is
that correct?
MS. LINNAN: That is correct.
MR. KOBZA: So to move building setback lines forward is
specifically prohibited under 161.141, where your position is that
beach renourishment, because of beach renourishment and in theory a
mean high waterline established under your approach by elevation on a
renourished beach, that that somehow allows the building control line
to go forward or a setback line to go forward? You're not saying
that, are you?
MS. LINNAN: No, I'm not, but I also don't necessarily
agree with your interpretation of the statutes.
MR. KOBZA: I understand that, but I want to be clear
here. 141 specifically prohibits the increase in intensity of
development on lots under that beach renourishment act as a product of
beach renourishment; correct statement? MS. LINNAN: Correct.
MR. KOBZA: Thank you. Okay. Now, it's also true, is
it not, that 161 -- I believe it's 152 -- do we have that overhead?
MS. LINNAN: 052?
MR. KOBZA: The --
MR. DOYLE: Would you like to see the statute?
MR. KOBZA: 161.052. Yeah, 161.052, that under that
statute, once an ECL is established not -- let's not -- not passes,
okay, let's not deal with the exemption for a second.
MS. LINNAN: Right.
MR. KOBZA: But the specific language of that statute
provides that once an ECL is established, it's the state policy --
it's the state statutory requirement that setbacks be measured from
the ECL in those -- I'm -- exclusive of passes -- here, let's pull the
language here, and I think we can --
MS. LINNAN: I think I know what you're trying to ask,
and I think I can explain this, and I think it started with some
unintentional misinformation that Mr. Arnold put early on. MR. KOBZA: Okay.
MS. LINNAN: You have 161.052. Legislature passed that
in 1970, 50 feet from the mean high waterline. If you already have an
erosion control line, it's 50 feet from that. That was 50 feet for
the State of Florida. 1971 property owners, everybody running to the
governor and cabinet and legislature going this is arbitrary, 50
feet. You know, actually at the time they were complaining. Now 50
feet they love. It's a lot more than that. But everybody pointed out
to them that this is very arbitrary. They all agreed to that.
what they did was directed the then Department of Natural Resources to
go out and on a county-by-county basis survey based on a hundred-year
storm surge. That's a simplistic way of saying it, but where the
water is going to go to on the land, figure out where it was, and set
that as a coastal construction control line. The minute that line was
set, 052 no longer applies. It goes away. So there's no exemption.
There is no 052 line anywhere in Collier County right now the minute
that coastal construction control line was set.
MR. KOBZA: So if the setbacks prior to beach
renourishment were 50 feet from the then mean high waterline under 041
-- Catherine, could you have the other set -- 141, that's where the
setbacks are today?
MS. LINNAN: No. That's a state setback. That has
nothing to do with local government, and the state setback is gone.
MR. KOBZA: Thank you.
COHMISSIONER HAC'KIE: But, Kim, I really wish you'd let
her answer, because I want to hear this. If there's not a state
setback, because 052 would be the applicable setback, 052 went away
when we got a coastal construction control line, so there is no state
setback line?
MS. LINNAN: And they have said that in two letters, one
to the county and one, I believe, one to the applicant.
COMMISSIONER MAC'KIE: So what is the '-
MR. KOBZA: But the point is -- but the point is -- two
points; one, under 141 as a product of beach renourishment, you cannot
move your setback lines forward. You cannot increase the density or
intensity of development. The state does not allow you as a product
of beach renourishment to move your construction lines forward. Beach
renourishment is not to be used as a predicate to move your setback
lines forward. If that were the case, then throughout Collier County
we would have that issue, that every time you undertook a beach
renourishment project, that would allow -- exclusive of the gulf,
okay, that would allow construction to go forward. And that's what
that statute tells you you don't do -- okay -- and she said that.
MS. LINNAN: I disagree.
MR. KOBZA: Okay. Well, that -- we can have opinions.
052, the importance of 052 is even though it strictly doesn't apply,
because it's not in the gulf, isn't it true that the state considers
the ECL the equivalent of the mean high waterline for the purposes of
establishing those setbacks on the gulf?
COMMISSIONER MAC'KIE: I don't care what the state line
is. I don't care about the state line. We don't have any
jurisdiction over it.
MR. KOBZA: Okay.
COHMISSIONER HANCOCK: The fact that we're not in the
gulf, that should matter, shouldn't it?
MS. LINNAN: Right. If you were right on the gulf, you
would have the coastal construction and control line.
MR. KOBZA: This is not a protected pass. Those were my
two questions. Thank you.
CHAIRPERSON MATTHEWS: Thank you. Mr. Doyle.
MR. DOYLE: If I may, I will be very brief with a couple
of redirect.
Hiss Linnan, I would like for you to explain to the
board why it is that you disagree with counsel's interpretation of the
statute.
MS. LINNAN: When you're talking about using that
property to increase the density and intensity, it's as though you
have wetlands, and some counties allow you to use that in your
calculation of density and transfer that to the uplands. Some
counties do not, and that's what the state was saying. When we own
it, you can't use that when you're calculating how many units you can
put on that property.
COHMISSIONER MAC'KIE: For -- like for transfer
development rights, for example, you can't use it for that purpose?
MS. LINNAN: Right. Yeah, pretty simple.
CHAIRPERSON MATTHEWS: Pretty simple.
COMMISSIONER MAC'KIE: Sounds it to me.
MR. DOYLE: You have indicated to the board that there
is no state setback applicable to this property?
MS. LINNAN: That is correct, and it's not just me
saying that; it's also the state.
MR. DOYLE: You got an opinion from the state with
regard to that?
MS. LINNAN: Correct.
MR. DOYLE: I would point out to the board that that is
Exhibit 14 in your packet, the opinion from the state.
MS. LINNAN: There had been an earlier letter that had
raised some question about it if you weren't familiar with this area,
so we asked them to straighten it out.
MR. DOYLE: Thank you. I have nothing further.
COMMISSIONER HANCOCK: I do have a question. Are you
tendering Miss Linnan as an expert in this particular area? In other
words, I'm back to the question I have, two attorneys, two opinions.
Has she been tendered as an expert in this area, and are you
proffering that?
MR. DOYLE: We would proffer her as an expert in the
area of state regulation regarding the coastal construction.
COMMISSIONER MAC'KIE: Anybody object?
CHAIRPERSON MATTHEWS: Anybody objecting to her being
accepted as an expert?
COMMISSIONER CONSTANTINE: Not in that area.
CHAIRPERSON MATTHEWS: Not in that area.
COMMISSIONER MAC'KIE: I move we accept her.
COMMISSIONER HANCOCK: Second.
CHAIRPERSON MATTHEWS: Motion to accept Miss Linnan as
an expert in state regulation; is that correct? MR. DOYLE: Of coastal construction.
CHAIRPERSON MATTHEWS: Of coastal construction. All
those in favor, please say aye.
Opposed?
You're an expert. Thank you.
Does that conclude your presentation?
MR. DOYLE: One moment, Madam Chairman. I -- we had
offered all of the exhibits --
COHMISSIONER CONSTANTINE: Microphone.
MR. DOYLE: We had offered all of the exhibits which are
in the booklet. I just want to make sure that they have been accepted
by the board.
COHMISSIONER CONSTANTINE: No objection.
CHAIRPERSON MATTHEWS: I don't think any of us object to
that. Certainly we've all read it through.
COHMISSIONER MAC'KIE: All we have to do is submit it as
part of the record.
MR. CUYLER: They're not acknowledged is correct, but if
you tender them into the record, then they're accepted into the
record.
MR. DOYLE: And we have tendered some additional
exhibits in addition to the booklet. They are tendered also.
CHAIRPERSON MATTHEWS: Okay.
MR. DOYLE: With that we would rest our case.
CHAIRPERSON MATTHEWS: Thanks.
COHMISSIONER HANCOCK: We're homebound.
MR. CUYLER: At this point, according to what we
discussed to begin with, Mr. Vasey's representatives will have an
opportunity to make a brief opening statement as to what they intend
to show and then to put on whatever case they have. CHAIRPERSON MATTHEWS: Okay. Fine.
MR. CUYLER: Then if there's any member of the general
public, then we wrap up, and I believe the appellant reserved, as well
as Mr. Arnold reserved some rebuttal time.
CHAIRPERSON MATTHEWS: Okay, fine. Mr. Kobza.
COHMISSIONER MAC'KIE: You guys are going to do like the
O.J. defense; right? You've got a few witnesses you want to pop in
there. You're not going to drag this out?
CHAIRPERSON MATTHEWS: He's smiling. I don't think
that's true.
COHMISSIONER MAC'KIE: It's working for them.
MR. KOBZA: Commissioner Hac'Kie, actually I am going to
take a much different approach to the presentation of the case than
has been taken by the appellant here and much more along the lines of
what you suggest.
Back on Hay 8th or Hay -- I think it was Hay 12th, we
provided each commissioner with a very detailed set of records. We
provided each commissioner with reports --
COHMISSIONER MAC'KIE: I'm having trouble hearing you
over that.
MR. KOBZA: Turn this light projector off.
COHMISSIONER MAC'KIE: It's just hard to hear.
MR. KOBZA: Okay.
CHAIRPERSON MATTHEWS: Okay. Let's go.
MR. KOBZA: We -- we provided you with a very detailed
set of reports of documentation, of copies of permits, of
interpretation letters and so on. What I would intend to do in our
case is to -- we're -- you know, we're in support of the staff's
position. We feel the staff has very -- very thoroughly considered
this matter, very properly considered this matter. We'd like to offer
into evidence our various exhibits, the -- the expert reports that are
contained in this book. The -- we have curriculum vitaes for each of
the experts, and then I would -- I'm going to presume -- I'm going to
make reference to the report, but I'm going to presume that each of
the commissioners has, you know, carefully considered all of the
materials in the book. And then what I would do in our case is very
-- just go through principally the legal issues, and we do see this
as a very narrow set of legal issues through attorney presentation;
myself, Hiss Delegal on the equitable estoppel argument, Mr. Goodlette
on some of the procedural issues if necessary, and then probably only
have one or two witnesses at that point. So that would be how I would
intend to proceed with our argument.
CHAIRPERSON MATTHEWS: Let's move forward. It's getting
late.
MR. DOYLE: If I -- if I may for the record simply
object to the board considering all of these exhibits that are here.
The basis for our objection is that most, if not all of them, are not
relevant to the interpretation of the code. Some of them, we believe,
are not only incorrect but inflammatory, and a number of them pertain
to the Vasey appeal which was dismissed.
MR. KOBZA: Oh. They've issued the -- or excuse me.
They've argued the issue of equitable estoppel. And equitable
estoppel is just what it says; it's an equitable remedy. So the
question is there whether the building permit follows all laws of the
county, and does equity present them with the ability to rely upon
their actions in going forward with this construction. So that is an
equitable estoppel argument, and they are in violation of numerous
county ordinances as we will show you.
CHAIRPERSON MATTHEWS: Let's go. Come on.
MR. KOBZA: Okay.
CHAIRPERSON MATTHEWS: I want to go home.
COHMISSIONER HANCOCK: This week.
MR. KOBZA: The standard of proof for your review is set
forth in Section 1.6.6 of the ULDC. Under that section the ruling of
Mr. Arnold as to the required 50-foot setback is to be upheld unless
there is substantial competent evidence to the contrary, so that's a
fairly high standard that has to be met. As evidenced by the
photographs you have before you, all of the documentation in our
books, all of the documentation that you have reviewed, there is
substantial competent evidence that, in fact, the 50-foot setback is
required. Okay.
The actual PUD language which we've gotten away from,
but the actual PUD language says 50 foot for accessory structures.
It's totally illogical to apply any other setback for principal
structures to that mean high waterline and to the boundary line. The
plat notation specifically described the building control line as
being referenced to the mean high waterline. There was an
understanding that that would change over time. So the 50-foot
setback is again noted on the plat notation which Mr. Arnold has
relied upon. He's right.
COHMISSIONER MAC'KIE: Is Mr. Cuyler in here, because I
have a question for him?
CHAIRPERSON MATTHEWS: Mr. Cuyler?
COHMISSIONER MAC'KIE: Harjorie, if he's not here '-
MS. STUDENT: I'll try --
COMMISSIONER MAC'KIE: Well, I'm just confused about --
in this case they presented factual witnesses who were sworn and
provided testimony, and -- and Mr. Kobza is doing a more traditional
kind of a board presentation, but not a quasi-judicial. I don't
believe you were sworn, and I'm trying to determine if I'm supposed to
give this -- is this an introductory remark or -- you know, I don't
know how to weigh the two different kinds of evidence that are being
presented.
MS. STUDENT: I believe, Commissioner Mac'Kie, that Mr.
Kobza was to do some opening remarks and then, you know, go forward
with his case. And I might add I'm not entirely clear. It seems this
is sort of opening remarks and --
MR. KOBZA: Actually I was sworn by the --
COMMISSIONER MAC'KIE: You were sworn? So we're taking
you as factual testimony at this point?
MR. KOBZA: As to research, but I'm just the same -- I
mean I'm not in a different position than the other attorneys here
are. They've testified to factual issues throughout this whole --
COMMISSIONER MAC'KIE: Mr. Doyle made an opening, but
then he put experts-- or he put witnesses on who gave factual
statements.
MR. KOBZA: I intend to do that. I intend to do that as
well.
CHAIRPERSON MATTHEWS: Let's move on.
MR. KOBZA: I'm trying to be sensitive to the board's
time. I mean I can go through each and every one of our experts and
have them testify if that would be more appropriate. I don't think
this is strictly a court of law.
CHAIRPERSON MATTHEWS: Mr. Kobza, can we move forward?
MR. KOBZA: Sure. The plat notation tells us that the
50-foot setback applies. Mr. Arnold, again, was correct in that
assessment. We reviewed the environmental impact statement which was
-- which was considered and incorporated into the permit at the time
of the original approval of the PUD. And I would like to show you
what that environmental impact statement says.
In accordance with the recommendations of the
professional engineer, development will take place a safe distance
from the shoreline to have reduced potential erosion damage. A
100-foot building setback line will be maintained for dwelling units,
50 feet for the first 400 feet along the northern boundary of the
site. That's the environmental impact statement that was considered
at the time the PUD was approved in 1979.
The practice of the county board itself in the period
1986 -- '87 forward establishing the 50 feet from the mean high
waterline, and applying that with the survey which you have seen
exhibit of -- can you put the survey up there, please? With the
survey and the actual attachments showing lot dimensions based on that
50 foot from the mean high waterline, it itself is evidence that the
county interpreted this PUD as requiring the 50-foot setback. All of
those things tell you that the 50-foot setback was appropriate.
Petitioner's position is that the ECL is not the mean
high waterline for the application of setbacks because of beach
renourishment, that somehow because of beach renourishment they can
take a mean high waterline or a mean high waterline based on a
elevation on a renourished beach, which is a sacrificial beach,
designed, as our expert has said in his report, Tom Missimer, and as
he will testify, a sacrificial beach which is designed knowing it's
going to erode. There is no guarantee of beach renourishment. We all
know that. Okay. There's no guarantee of funding. There's no
guarantee of permitting, and the likelihood is that -- as our expert
will testify, is that that beach will erode to what was the mean high
waterline. And there are some very specific dynamics of this system
which militate towards its erosion. And you have in your book
profiles of this pass area. Okay? And what our expert's going to
tell you is that whereas on the gulf there is a gradual slope which
supports a renourished beach, in a pass there is no gradual slope.
There's a very steep dropoff which is reflected in the profiles, and
that because of that, this area, as your comp. plan recognizes -- and
we have your comp. plan provisions in our book here -- as it
recognizes, you have some of the highest erosion rates historically in
Collier County right here on this northern end of Marco Island.
COHMISSIONER HAC'KIE: But, Kim, assuming that the beach
is sacrificial, what's the relevance to where the line is to the
setback line?
MR. KOBZA: Because that underlies, again, why you apply
-- why that ECL is treated as the mean high water for purposes of
establishing setbacks.
COHMISSIONER HAC'KIE: Your point is use the ECL, not
the mean high water?
MR. KOBZA: Absolutely, or not a mean high water based
on an elevation on a renourished beach.
COHMISSIONER HANCOCK: Following that same line, if it's
anticipated that it will erode to the ECL and the structure is behind
the ECL, where is the erosion caused by the structure? I don't follow
that.
COHMISSIONER HAC'KIE: Me either.
COHMISSIONER HANCOCK: In other words, the structure
itself is not supposed to contribute to or exacerbate erosion. I
understand that much.
MR. KOBZA: Right.
COHMISSIONER HANCOCK: But if it's behind the line at
which the state has said this is how far we will expect this to erode,
then where is the relationship?
MR. KOBZA: It's not -- okay. The state hasn't said it
expects it --
COHMISSIONER HANCOCK: That's the sacrificial part,
though, where you expect it to go away -- MR. KOBZA: Right. This structure will be at the
waterline, okay, at the line of mean high water.
COHMISSIONER HANCOCK: Some day maybe.
CHAIRPERSON MATTHEWS: Some day.
MR. KOBZA: In a small -- in a fairly mild cold front in
February your -- you're seeing the scouring already.
COHMISSIONER HANCOCK: But when the hurricane -- we'll
be underwater. What I'm saying is, you said that's a sacrificial
area. I'm just asking for the correlation of a structure behind that
line to eroding -- I just -- I don't want -- I'm missing that
connection.
COHMISSIONER MAC'KIE: He too.
MR. KOBZA: What I would like to do is have Mr. Hissimer
speak to that for you. COHMISSIONER HANCOCK: Okay.
MR. KOBZA: 2.7.6 of your Land Development Code requires
that every applicant present all relevant information in its
application for building permits with compliances with all
ordinances. The building permit application itself -- can we have
that? That's very hard to read, but -- okay, get it blown up -- of
this application says in part that the application is correct. All
construction will conform to regulations in the building code, the
Land Development Code, and provisions of other applicable codes of
Collier County. If any information changes, it's their obligation to
notify immediately the county, okay. But that permittee specifically
acknowledges that they have to comply with all of your ordinances, not
-- not simply setbacks, coastal construction, sea turtle, every --
protection, everything. Okay.
CHAIRPERSON MATTHEWS: Mr. Kobza, how is this relating
to the -- to the appeal that we're hearing today?
MR. KOBZA: They are -- are arguing equitable estoppel,
that they have some vested right to -- or -- or you're estopped from
suspending or revoking their permit.
CHAIRPERSON MATTHEWS: And you're trying to say that
they don't have a vested right?
MR. KOBZA: That's correct.
CHAIRPERSON MATTHEWS: Okay.
MR. KOBZA: Section 1.9.7.2 of your Land Development
Code provides that there shall be a revocation of the permit where
there has been any misrepresentation made. Section 1.9.7 also
provides that there shall be a suspension of the permit where there's
been an error or omission upon the part of either the applicant or the
governmental agency in the issuance of the permit. So those are your
code provisions that give you authority here, okay.
COHMISSIONER MAC'KIE: But if we make a mistake or they
do --
MR. KOBZA: Either way. Even if -- even if they say
there's zero setback to the rear lot line on a permit application, you
don't catch it, you still, given more knowledge, have the ability to
suspend or revoke the permit.
The Gibson application permit showed the mean high water
elevation forward of the ECL for their purpose of establishing a
setback. Where the ECL is the only appropriate mean high water
elevation, this is what your reviewer saw, mean high waterline
established out in front of the ECL. Now, under Chapter 177 -- do you
have those provisions, 1777
COHMISSIONER MAC'KIE: Mr. Kobza, are you saying that
there was a misrepresentation in that drawing?
MR. KOBZA: In order to show a mean high waterline,
there has to be a certification under Chapter 177 of Florida Statutes
certifying the methodology that was used before this can be given to a
state agency to rely upon.
COHMISSIONER HANCOCK: I'm sorry. You said given to a
state agency --
MR. KOBZA: Yeah, in other words, the Bureau of Survey
and Management to make sure that it correctly depicts the mean high
waterline.
COHMISSIONER MAC'KIE: So are you saying that line is
wrong or that they didn't provide an appropriate stamp of approval at
that time?
MR. KOBZA: We're saying they did not follow appropriate
procedure for establishing that that was the correct mean high
waterline.
COHMISSIONER MAC'KIE: But do your experts tell you that
that is not the mean high waterline or that -- are we talking
technicalities here?
CHAIRPERSON MATTHEWS: Excuse me, Miss MAc'Kie. Can we
keep it quiet over here?
MR. KOBZA: I'll have Mr. Boggs testify as to the exact
methodology they would use. But, yes, that is not appropriate. That
survey -- you will see other applications in your -- your package
there. We have a copy of every application for building permit that
was issued subsequent -- both slightly before and subsequent to the
adoption of the ECL. And you will see in those applications the
difference in the detail of the application materials. The other
things that your staff didn't have, for instance, vegetation. They
didn't have a location of a dune ridge or some kind of a dune line, a
vegetation line, all those things.
COMMISSIONER MAC'KIE: I'm -- I'm -- I'm sorry, but are
you telling us -- I mean is this like a trial? You're telling us what
the evidence is that you're going to put it on, and then you're going
to put it on, or are you telling us it's in the book you've already
given us?
MR. KOBZA: The supporting documentation is in the
book.
COMHISSIONER MAC'KIE: Uh-huh.
MR. KOBZA: As to the expert testimony, we are going to
offer that, but in a more limited format. Again, I'm trying to be
sensitive to the board's time and just have two or three experts.
COMHISSIONER MAC'KIE: I guess what I wish is instead of
you telling us what they're going to say, you just let them say it.
MR. KOBZA: Okay. In other words -- I'll wrap this
portion up.
COMHISSIONER MAC'KIE: I'm sorry.
MR. KOBZA: That's fine. It's getting late, and we've
all been here a long time.
The point is that this application did not have all the
material on which your reviewers could have made an informed judgement
as to the proper location of both the setback and compliance with your
other ordinances.
At this time I think what I'd like to do is offer Mr.
Missimer. Mr. Missimer's credentials are in the book. He would be
testifying on issues of coastal geology, application of the ECL, beach
renourishment questions.
COMMISSIONER HANCOCK: Motion to recognize Mr. Missimer
as an expert.
COMHISSIONER NORRIS: Second.
CHAIRPERSON MATTHEWS: We have a motion and a second to
recognize Mr. Missimer as an expert. All those in favor, please say
aye.
Opposed?
Mr. Missimer, you're an expert.
Mr. Kobza, do you have a copy of this book to give to
the court reporter for the record?
MR. KOBZA: Yes, I do.
CHAIRPERSON MATTHEWS: Okay.
MR. KOBZA: Mr. Missimer, would you please provide the
board with a description of what you've done in terms of looking at
this particular area in the beach renourishment files and so on as it
affects the establishment of the ECL and the nature of the beach
forward of the ECL?
MR. HISSIHER: Yes. First, for the record my name is
Tom Missimer, M-i-s-s-i-m-e-r. What I was asked to do was to take a
look at this area of the beach and collaborate my opinions and work
with other experts in the field with my staff, Dr. Charles Walker, who
is an expert in sedimentology, and Dr. Orrin Pilkey with Duke
University, who is one of the foremost authorities in the field of
coastal geology. The opinions that we have placed are in your book.
What we did -- and initially we looked at the field
site. We reviewed aerial photographs, historical aerial photographs.
Based on all the erosion investigations of that area conducted by the
county's coastal consultant, which is Michael Stephen who worked on
that project extensively. We basically took his information, the
aerial photographs, our observations, and formulated an opinion about
how that system works in the area from -- actually to the landward
side of -- of development out to the edge of the pass, looked at the
profiles and the data that Mr. Stephen has compiled by monitoring that
beach beginning just after the erosion. The material was placed on
the beach in terms of renourishment to the point in time of the last
measurement, I believe, that was made out there in February. We've
also been out there today making additional observations on what
happened during the minor storm we had a few weeks ago, the low
pressure that rained for a week, and looked at where the veg -- the
lines of debris were on that beach, so we could look at the
relationship of the line and the structure as it stands today with
what's happening there today.
COMHISSIONER MAC'KIE: Mr. Missimer, I'll be able to
understand your testimony better if I know the relevance, and so the
point that you're testifying on is that you're going to tell us what
the appropriate line is based on scientific data, something? I don't
know what it is. I'm asking.
MR. MISSIMER: The idea of what I want to relate to you
is that the construction setback line or -- or that line is there for
a reason. That was where the mean high water was prior to the
placement of the sacrificial beach. It truly is a sacrificial beach
COMHISSIONER MAC'KIE: Construction setback line is
erosion control line?
MR. MISSIMER: Erosion control line, excuse me. My
mistake. Got to be more concise. The erosion control line is there
for a reason. That is an extraordinarily unstable beach, and it has
-- the full intent -- it was put there for the full intent of it
eroding back to that area in some length of time which on that beach
has already occurred in certain areas, and some of it has been
renourished again as little as three or four months ago. So this is
an extraordinarily unstable portion of the beach.
COMHISSIONER MAC'KIE: And assuming we acknowledge that
it's -- going back to sort of the same question I was asking Mr.
Kobza. Assuming it's a sacrificial beach and it's going to erode to
there, the relevance to help me see how that applies to the situation
at hand when the question I have is, what is the line by which the
county measures setbacks for this property?
MR. MISSIMER: Okay. I mean the facts support that that
line is an appropriate setback simply because already the runup of
waves in storms is already reaching the construction now today.
COMMISSIONER MAC'KIE: So the county couldn't have met
anything else, because they would have been scientifically stupid if
they did anything different.
MR. HISSIHER: I wouldn't frame it in that terminology.
COHMISSIONER HAC'KIE: But that's the point? Is that
the point?
MR. KOBZA: Right.
MR. DOYLE: Madam Chairman, if I might object to the
entire line of testimony based on what Mr. Hissimer has just said,
because he's testified about what is an appropriate line and not what
the line is, and what was said at the outset was this appeal is about
where the line is.
MR. KOBZA: The inference from the scientific -- the
scientific reality of what is there as to what is the appropriate
setback, and it is an inference.
CHAIRPERSON MATTHEWS: Mr. -- Mr. Kobza, you had said
that you were going to establish argument about the estoppel, and now
we're hearing something about an appropriate -- an appropriate line
versus where the line really is. Can I get you to come back to center
to what it is that we really need to address? I'm not sure --
COHMISSIONER MAC'KIE: I'm getting lost.
CHAIRPERSON MATTHEWS: -- Mr. Hissimer telling us what
the appropriate line is has any bearing on this at all.
MR. KOBZA: Well, the issue is what is the appropriate
setback.
COHMISSIONER MAC'KIE: No. The issue is what was the
setback line at the time the permit was pulled, not what should it
have been.
MR. KOBZA: Right, right, exactly.
COHMISSIONER MAC'KIE: Okay.
MR. KOBZA: And inferring -- exactly, Commissioner
Hac'Kie. Inferring -- he's reviewed all of your beach renourishment
files, your project files from Dr. Stephen as to the establishment of
the ECL, and he is telling you from that science that that ECL was
intended as a setback line for these; that's his testimony.
COHMISSIONER MAC'KIE: Is that your testimony?
MR. HISSIHER: Yes.
CHAIRPERSON MATTHEWS: Okay.
MR. KOBZA: Mr. Doyle, do you want to cross-examine?
COHMISSIONER HANCOCK: I'll infer even further that
anyone that builds this close to the beach is taking their chances
anyway.
MR. ARNOLD: If I could, I don't have any specific
questions for Mr. Hissimer. I must admit I feel that the county staff
is at a severe disadvantage on this particular point of law. If we're
arguing estoppel, we too admit not to have the basis for coastal
engineering or coastal dynamics in our planning department and our own
environmental staff. We have commissioned an expert on our behalf as
well to be here, but not tonight. It was our understanding that the
issues relative to environmental coastal issues would not be
discussed. We're saving those for our PUD amendment hearings of which
you would hear additional testimony on staff's behalf relative to
beach dynamics, issues relative to erosion rates, sediment, dispersal,
vegetation lines, all other issues that have been discussed.
CHAIRPERSON MATTHEWS: That was my understanding too,
that we -- we are not here to discuss the PUD amendment. We are here
to discuss the appeal of Mr. Arnold's interpretation, and that's what
we -- I want to confine this to.
MR. KOBZA: I'm trying very hard to do that.
CHAIRPERSON MATTHEWS: Mr. Cuyler.
MR. CUYLER: I think the only variation to that -- I
believe I told both parties this before we started, and that is if the
board is going to consider an estoppel argument, what you're basically
going to say is we think the slab should stay where it is right now,
then the health, safety, welfare considerations of whether, I guess,
to use Mr. -- part of what Mr. Hissimer is saying, whether the water
is going to be lapping at that slab or not becomes relevant from that
context. If you're not going to be considering the estoppel argument,
if you're only going to be saying either the interpretation is correct
or it's not correct, then this doesn't become relevant. And I think I
told both the parties if we start to get into the estoppel argument,
then this kind of thing is probably going to be least -- the parties
are going to try to bring this type of thing up to show that there is
an overriding health, safety, welfare consideration, that a court is
not going to allow the slab to stay there regardless of whether they
got a fairly good estoppel argument. The Court may make somebody pay
to have it moved, but the Court wouldn't leave it to that extent.
Whether that's the answer or not, I don't know, but those kind of
issues are what you're going to be hearing, I believe.
CHAIRPERSON MATTHEWS: Okay. Commissioner Hancock.
COHMISSIONER HANCOCK: Mr. Hissimer, your testimony is
then that this slab is and will be in jeopardy? MR. HISSIHER: Yes.
COHMISSIONER HANCOCK: And are there any others in
Hideaway Beach that also are or will be in jeopardy that are --
MR. HISSIHER: Host of the other structures in Hideaway
Beach, the home isn't right down at the edge of the -- of the erosion
control line. In this particular case right now, based on direct
observation and measurements that we made in -- in February -- in
April and looking at where the runup lines are from the waves along
that area, the wave runups have already reached the -- the
construction area, and there's evidence that sand was pushed up on
there just in the last few weeks. So, I mean, it -- the sacrificial
beach is truly a sacrificial beach, and at times as that beach goes
back and erodes back to the erosion control line, the wave runup will
go above that area. In that particular case the issue is as sediment
is removed along there, any obstruction in the coastal zone causes an
accelerated rate of erosion on the downgrading side. And Mr. Vasey's
property is, in fact, in jeopardy once that critical runup reaches
that area. And some of it you can see on the beach today. So I mean
this is not a thing that we're talking about five and six and seven
years from now. We're already looking at this in frontal systems now
and even in low-pressure areas.
CHAIRPERSON MATTHEWS: I've got one question that I
think might help me figure this out in the end. This erosion control
line that we keep talking about was previous to the beach
renourishment, the mean high waterline?
MR. HISSIHER: Very close to it, yes, according to the
records.
CHAIRPERSON MATTHEWS: And it's expected that at some
time in the future -- we don't know when -- the mean high waterline
will once again be at that erosion control line? MR. HISSIHER: Correct.
CHAIRPERSON MATTHEWS: And when that happens, whenever
it be, Mr. Gibson's property, his primary residence, will be lapping
in water?
MR. HISSIHER: Yes. And see, this is the thing. If the
erosion control line is very close to that -- in other words, that is
approximately the beachface area or at the top of the beach face,
close to it, not exactly. It's in -- it's a little bit of
difference. But the wave run-up at that point in time will be
touching the structure. That's the point.
CHAIRPERSON MATTHEWS: Yeah. I think I get it now. Ms.
Hac'Kie.
COHMISSIONER MAC'KIE: Two questions, one just to query
about the theory. Isn't it -- I mean don't we expect that Marco is
going to continue to renourish and maintain their beaches, and they're
not going to let them go back to where they were before they
renourished them, I mean, but for a storm, a hurricane, some horrible
event? I think that would be a reasonable assumption. I expect that
they will maintain their beaches as -- to the extent they possibly
can. That's one point.
But the other one is -- and I'm relying on this Exhibit
17 in the appellant's book, because it's the clearest picture and that
there's nothing on lot 14 that's seaward of the erosion control line.
It comes to it, but there's nothing to fall off into the ocean if you
go to the erosion -- I mean even if what you said, it erodes back to
what it was when Marco was so dissatisfied with their beaches that
they spent millions of dollars to put this sand out there. Even if
they let that happen again, this whole structure is still behind that
line, so what's the point?
MR. HISSIHER: The point is the -- the issue is the wave
run-up is already able to reach the structure now and has, as you can
see the slides and the photographs in the book. And what that ends up
doing is, again, that accelerates -- when you have any kind of
obstruction at any point in the run-up area or zone, it accelerates
erosion and removal of the sediment in the point.
COHMISSIONER MAC'KIE: My question --
MR. HISSIHER: Textbook type -- and, you know, this
could -- process will continue. If the structure was set back
further, there would be no obstruction there. And if you look where
the vegetation line is, even the turtles' nests are back and marked
back in the vegetation just on the upside of that beach. They're
further back than this structure protrudes right now onto that beach.
COHMISSIONER MAC'KIE: See, if what you were telling me
was that this house -- it's not fair for the house to be there,
because it's going to cause the beach to erode faster. Like you said,
that's pretty textbook that it is probably going to cause it to erode
faster. But if what you're telling me is the important issue is that
the beach will go back to the erosion control line some day in the
future, and at that point this house may fall off into the ocean, this
picture doesn't show that. It shows that the house is landward of the
erosion control line.
MR. HISSIHER: The house will become a buttress for
waves and cause erosion on the downgrading inside, which is the Vasey
side of the property, and will --
COMMISSIONER MAC'KIE: See, I don't know whose '-
MR. MISSIMER: -- provide that as a shadow -- it's
called a shadow effect.
COMMISSIONER MAC'KIE: 13 -- what's Vasey's? 137
MR. GOODLETTE: 12 and 13.
COMMISSIONER MAC'KIE: 12 and 13. Thank you.
MR. GOODLETTE: May I just clarify? I'm Dudley
Goodlette with Cummings and Lockwood, also counsel for Mr. and Mrs.
Vasey. I think just one important question. Mr. Missimer has been
retained by Mr. Vasey to -- to represent him in these proceedings, and
I think the important question for him to answer is how will the
structure where it is currently located adversely impact the
neighboring properties.
COHMISSIONER HAC'KIE: I can see that.
MR. GOODLETTE: And if you'd answer that just again
clearly, please.
MR. HISSIHER: By the placement of a hardened structure
this far out on the beach face, the adjacent properties towards the
gulf will be impacted. You know, early on -- and Dr. Pilkey thinks
they've already been impacted. And what I've observed this morning,
there's sand removed already on the opposite side that you can see as
a shadow effect from -- from the obstructions in -- in there now.
COHMISSIONER HAC'KIE: And that's -- that's real
relevant to where the line ought to be when we get to the PUD. MR. HISSIHER: Yes.
COHMISSIONER HAC'KIE: But I don't think it's relevant
to where was the line the day this decision was made.
MR. GOODLETTE: Other -- I don't have any other
questions of -- of Mr. Hissimer except I think that the impact on the
neighboring properties for the structure being where it is gave rise
to the whole reason why these interpretations -- this interpretation
was sought in the first place.
MR. KOBZA: Tom, you can sit down, please.
MR. DOYLE: Excuse me. I would like to cross-examine
your witness.
MR. KOBZA: I'm sorry.
CHAIRPERSON MATTHEWS: I'm sorry, Mr. Doyle. We were --
we were moving to that. Mr. Arnold, would -- you had said you don't
have any questions for Mr. Hissimer? MR. ARNOLD: No.
CHAIRPERSON MATTHEWS: Mr. Doyle.
MR. DOYLE: Mr. Hissimer, a couple questions I'd like to
ask you. You talked about this being a sacrificial beach. It's true
that this beach, like most beaches, fluctuates, isn't it?
MR. HISSIHER: Yes, all beaches fluctuate.
MR. DOYLE: And you've looked at the historical data for
this beach?
MR. HISSIHER: Yes, I have.
MR. DOYLE: Then you know this beach has fluctuated
dramatically over the years, hasn't it?
MR. HISSIHER: It's fluctuated dramatically over the
periods of measurement since the design work was done. The
information prior to that can only be surmised from aerial
photographs.
MR. DOYLE: And if you look at the aerial photographs,
you'll learn that this beach has fluctuated where it has both grown
and decreased; isn't that correct? MR. HISSIHER: Correct.
MR. DOYLE: Now, do I understand from your testimony
that you don't have any knowledge regarding the community's commitment
to renourish this beach?
MR. HISSIHER: It was my understanding reading the
documents that at some particular point in time if permits could be
obtained when the sacrificial beach was fully sacrificed, that it
would be replaced. The issue comes down of the location of the Vaseys
being so far seaward of the others that just that structure would
require to be -- to be replaced earlier.
MR. DOYLE: Well, now, did you do a survey on Mr.
Gibson's property?
MR. MISSIMER: Mr. Gibson's property, I looked at Mr.
Gibson's property, yes.
MR. DOYLE: Did you do a survey?
MR. MISSIMER: A survey, no, I did not.
MR. DOYLE: If you'd done a survey, you would have
noticed that it is actually landward. His construction is landward of
the erosion control line.
MR. MISSIMER: That's what the documents state, yes.
MR. DOYLE: Right. And so this beach would have to
erode all the way beyond the erosion control line before it reaches
his structure, would it not?
MR. MISSIMER: No, it wouldn't. The impact would be
before that, because the wave run-up goes beyond the actual line.
COMMISSIONER MAC'KIE: Could I ask a question, just --
the significance of wave runoff?
MR. MISSIMER: Run-up.
COMMISSIONER MAC'KIE: Run-up?
MR. MISSIMER: Yes.
COMMISSIONER MAC'KIE: If it does extend beyond the
erosion control line, what its impact on the structure would be.
MR. MISSIMER: Okay. Essentially then the wave begins
attacking the structural buttress itself. You know, the wave runs
in. For example, if you look at some beaches, the -- the location of
that erosion control line is some imaginary line drawn along that
thing, and it's on the beach profile itself. It's seaward of the
vegetation line on the profile of the beach, okay. At the time of
erosion when -- when you match up the two profiles when you -- you
know, when it erodes back exactly, you'll find that same type of
profile. But the run-up of the waves in certain storm conditions,
particularly when the wind is out of the northeast and we get enough
across there, the waves will run up above that area, and that's where
the sand will move. That's where you actually will get contact with
the structure, you know, even prior to the actual erosion back to that
point.
COMMISSIONER MAC'KIE: So the waves are going to push
sand up to the house?
MR. MISSIMER: No. The waves come up to the house.
They move the sand around. It can go either direction, but the
critical thing is when you have high waves in that channel, a normal
beach, you have a fairly low slope that goes out in along here. When
you get a lot of turbulence and turbulent movement and the sand comes
back down, some of it will wash over into that channel, and that's
where you lose a lot of sand. It's very steep off of there.
COMMISSIONER MAC'KIE: Okay. Thank you.
MR. DOYLE: So, Mr. Missimer, what you're telling us is
about wave run-up, but that doesn't have anything to do with where the
beach setback line is under the PUD, does it? MR. MISSIMER: No, it doesn't.
MR. DOYLE: You know what a 20-year storm is, don't
you?
MR. MISSIMER: There's some definitions of 20-year
storms.
MR. DOYLE: Isn't it true that a 20-year storm would
cover all of these lots at Hideaway Beach all the way up to the
landward property line?
MR. HISSIHER: I'd have to research that. I did not
look at that.
MR. DOYLE: No further questions.
CHAIRPERSON MATTHEWS: Mr. Kobza.
MR. VASEY: Good evening. I'm Roger Vasey, and we own
the property at Hideaway Beach, block 1, Lots 12 and 13.
COHMISSIONER MAC'KIE: The court reporter wanted you to
spell your name.
MR. VASEY: Pardon me?
COHMISSIONER MAC'KIE: Could you spell your last name?
MR. VASEY: V as in Victor, a-s-e-y. And what I've
tried to do obviously in the interest of time here is shorten my
statement considerably.
Some ten years ago Mrs. Vasey and I searched southwest
Florida for a place to vacation and eventually build a retirement
home. We settled on Hideaway Beach because of its beauty and because
of its commitment to a high quality of life. And now we find
ourselves spending thousands and thousands of dollars, as is Mr.
Gibson, spending hours and hours of our time and effort at trying to
resolve this situation. We are -- are not unreasonable people. We
are not enjoying this. We have worked hard for eight months to try to
come up with a solution. In fact, we've commissioned some planners,
community planners here in Naples, to look at the entire beach at
Hideaway to try to come up with a solution, an objective review, and
they've done that. And we have presented proposals to Mr. Gibson and
his attorneys. We've described our solutions at various times and had
virtually no response, but we will keep trying.
COHMISSIONER MAC'KIE: At some point is it relevant for
us to know what those were? I find myself curious.
CHAIRPERSON MATTHEWS: Curious? If it's not related to
the appeal or not related to an argument against estoppel, I'm not
that curious.
COHMISSIONER HANCOCK: While they're discussing, Mr.
Vasey, I guess you can continue.
MR. VASEY: Okay. There are eight homeowners in
Hideaway Beach in block 1 of Hideaway Beach where there are 17 lots
ranging to the north of the clubhouse. Mr. Gibson, as you know, is
lot 14. We are 12 and 13. Every one of those homeowners at Hideaway
is adamantly opposed to the construction that Mr. Gibson has planned.
I'm sure each one of you has heard from every one of them many times,
and you've heard from hundreds of people at Hideaway with respect to
this situation.
The question we would ask -- and as I said, I'm going to
shorten this and skip right to my final point. The question we would
ask is, given the following packets, every other home on our beach is
at least 50 feet from the erosion control line. Every home in this
block 1 segment, 17 lots, is at least 50 feet behind the erosion
control line. Somebody asked where mine was earlier. My principal
structure is 75 feet from the erosion control line. My pool railing,
the front of the pool, is 48 feet from the erosion control line at one
point, 52 feet from the erosion control line at the other. It was
built before the ECL existed. We couldn't measure it precisely, but
it came out pretty closely.
Given the fact that the homes are all back behind the
setback line, given the fact that the beach is eroding rapidly in many
areas, given the fact that using a 50-foot setback line -- the setback
line that we're discussing tonight, a house of high quality in excess
of 7,000 square feet under air could be constructed by Mr. Gibson on
lot 14. And using the 50-foot setback line, Mr. Gibson would have the
same wonderful view that everybody else has on the beach at Hideaway.
And given the fact that using the 50-foot setback line the owners of
Lots 15, 16, and 17 could each build homes of at least the average
size on the beach at Hideaway or greater, and given the fact that if
the Gibson construction is allowed to proceed on the beach on the
erosion control line, it means that every other unbuilt lot owner on
Hideaway Beach will be able to move to the erosion control line with
their home, and even the existing homeowners will be allowed to move
accessory structures forward almost as far as they'd like to.
CHAIRPERSON MATTHEWS: Mr. Vasey, I -- I dislike
interrupting you but, you know, our purpose here today is to hear an
appeal. And what you're telling me seems to fit fine if we were doing
the PUD amendment, but that's not what we're doing today.
MR. VASEY: All right. Well, I just -- my only point
was given those facts, why should anyone build or be allowed to build
forward of where the rest of us are.
There was some comments earlier about whether we're on a
pass or the gulf. We look directly at the Gulf of Mexico. And our
position is simply that a 50-foot buffer between a huge home and the
Gulf of Mexico doesn't seem unusual under the circumstances.
COMMISSIONER MAC'KIE: Mr. Vasey --
MR. VASEY: Yeah.
COMMISSIONER MAC'KIE: -- may I ask you a question? As
you said, your property -- even the accessory structures are set --
are set back -- let me just make sure I'm saying it right, yeah -- 50
feet from the erosion control line, even your accessory structures
are.
MR. VASEY: Right, approximately.
COMMISSIONER MAC'KIE: Did the county require that? Did
your architect advise it, or was it just the way your plan -- the way
you wanted it?
MR. VASEY: No. In the late '80s when we moved ahead to
build our home, we were ordered by the county, asked by the county,
told by the county, to construct our home -- what, Kim, correct me if
I'm wrong, from a technical perspective -- but in my mind it was a
50-foot setback from what was to become the erosion control line once
the planned renourishment took place.
CHAIRPERSON MATTHEWS: But that was the mean high
waterline at that time?
COMMISSIONER MAC'KIE: At that time?
MR. VASEY: It was the mean high waterline at that
time. It was to become the erosion control line.
COMMISSIONER MAC'KIE: And I don't know who would know.
Who -- was this -- was Mr. Pettrow in charge of things at that time
when Mr. Vasey's permit was pulled? I mean I'd like to know who
required it and who said thou shalt be 50 feet back from what was then
the mean high waterline and what is now the erosion control line, and
what changed in between your application and his application?
MR. VASEY: Well, I was -- I was assured by the county,
again, through my architects and contractor, that the county had made
provisions for the other lots extending to the north of my lots, that
is 14, 15, 16, and 17, that we were shown diagrams. You saw the table
earlier. We were assured by the county that that line would -- would
hold on a permanent basis into the future for the people that owned
those lots.
COMMISSIONER MAC'KIE: So you too have an estoppel
argument.
CHAIRPERSON MATTHEWS: Yes, he has one too.
COMMISSIONER MAC'KIE: Do you know the answer to that
question? When was this permit pulled, and -- and was the
interpretation at the time thou shalt be 50 feet back from what was
then the mean high waterline and what became the erosion control
line?
MR. CUYLER: Again, I don't want to interject myself as
a fact witness into this situation, but I will tell you what I
recall. I didn't know it was Mr. Vasey's house, to tell you the
truth. But I do recall back at that time staff indicated to a
homeowner -- and as I've later come to understand recently, it was Mr.
Vasey -- and said you can't build up to the building control line,
because the water's landward of that. You've got to get back off the
water. We're not permitting any houses there. So I'm sure that's
what led to that house being 50 foot from the waterline, because all
of the -- all of the other lines at that point were sort of thrown out
the window. Nothing was relevant.
What happened after that, I don't have a clear
recollection -- a clear recollection. Mr. Pettrow never came and
asked me three times for something I didn't do, but other than that, I
don't have a clear recollection.
COMMISSIONER MAC'KIE: One more second. I want to get
this clear, that your recollection at the time is that the county was
requiring a 50-foot setback from mean high waterline?
MR. CUYLER: I think Mr. Vasey's was sort of the first
to occur, and staff said you'll only be a few feet from the water if
you -- if you -- if you build up to where the PUD says you can build,
and that stopped everything. There were a series of crisis-type
meetings. That's when everybody came to the Board of County
Commissioners and looked for some direction. And the decision was if
you want to build, we'll give you a permit, but you've got to be 50
foot off the mean high water at that time, which subsequently about --
became the erosion control.
COMMISSIONER MAC'KIE: So at the time of Mr. Vasey's
permit, the county went through a whole lot of machinations but was
very definite in his restriction to him; you can't be -- if you want a
building permit, you've got to be 50 feet back from this line?
MR. VASEY: Well, we -- let me just clarify one thing.
We never intended to build on the waterline. We found out how much
erosion had occurred after a survey was done, and that's when we went
to the county to clarify what the issues might be, what was happening
with respect to renourishment, and we were given the 50-foot setback
line to the forthcoming ECL, as I see it.
COMMISSIONER MAC'KIE: The part I don't understand in
this whole thing, because I know we're talking about what Mr. Gibson's
right is legally, but I mean if -- I didn't hear science from your
side that said you're not worried your house is going to fall off into
the ocean. They're telling you your house is going to fall off into
the ocean. Mr. Missimer is a pretty smart guy. I don't know why you
want to build a house there if it's going to fall into the gulf.
MR. VASEY: Commissioner Mac'Kie, we, in fact -- when we
bought lot 13, we bought lot 12 almost the same time as an investment
we thought we'd hold for the future. When we found out about the
erosion problem at Hideaway Beach, we backed up essentially as far as
we could go, and we used lot 12 to move back, so we now have the house
crossing lot 12 and lot 13. We wanted no part of being close to the
-- the water's edge. We've talked a lot about the mean high
waterline here today, and it's -- it's a term that seems to be used as
if it's the high waterline on the beach, the high tide line and --
CHAIRPERSON MATTHEWS: It's not.
MR. VASEY: -- believe me, that's what I thought as a
layman eight months ago. Now I can site chapter and verse as to what
it is. The high tide line at Hideaway Beach is 50 feet higher day in
and day out than the mean high waterline essentially, 45 to 50 feet.
And if you're on the erosion control line at Hideaway Beach on that
particular beach -- I don't know about any other beaches -- you are at
a point where the high tide line will reach you many days during the
normal weather cycle during the year. That's -- that's a fact. So,
you know, to talk about the mean high waterline may be a pertinent
legal issue, but what we're concerned about at Hideaway, we've got a
beautiful situation there, and we're concerned about the fact that
somebody or many people, not just Mr. Gibson, but many people will
drop homes right on that erosion control line and destroy the entire
beach for everybody.
MR. KOBZA: Could you describe to Commissioner MAc'Kie
the fact that you, in fact, had architectural done just for lot 13 and
the process that you went through in moving your house to use two
lots?
MR. VASEY: Well, we did design a house for lot 13, and
during that process the survey was accomplished, and that's when we
found that about 60 feet of the back end of the lot the beach was
gone. And I think --
COMMISSIONER MAC'KIE: Mr. Vasey, when you had that
house designed just for lot 13, did the county say you can't permit
it, the county said we will not give you a building permit for that
house?
MR. VASEY: I don't recall that happening, no, because
when I found out that that much of the beach was gone, I made the
assessment that we were not going to move ahead. I had coastal
engineers out there as consultants advising me on what was appropriate
and what wasn't.
COMMISSIONER MAC'KIE: But see, I agree. If I were
making these decisions -- God, how I would love to get to make these
decisions, you -- I would agree that you're more prudent, but that's
different from did the county -- you know, I don't get to tell Mr.
Gibson how to spend his money. He can throw it in the gulf if he
wants to, but I -- I only can tell him what the county rules are, and
he can go to the limit of the rules, even though you might be more
prudent and choose not to do that. MR. VASEY: Well, yes.
MR. KOBZA: In fact, Mr. Vasey, could you please
describe for Commissioner MAc'Kie how you got the frontyard variance
so that you could meet the 50-foot setback?
MR. VASEY: Well, we requested -- in order to move back
beyond --
CHAIRPERSON MATTHEWS: Can I interrupt this just a
second? Commissioner Norris, you've been trying to get something in
for awhile.
COMMISSIONER NORRIS: Well, I -- seems like we were
going a little far afield here anyway --
CHAIRPERSON MATTHEWS: Yeah.
COHMISSIONER NORRIS: -- with this. I'm trying to stick
with the issue at hand. I just wanted to ask Mr. Vasey something,
kind of clarification of something he said a little earlier back at
the beginning. You said that you had earlier tried to reach some sort
of agreement to -- to make a settlement here where everybody could go
forward. I know this has been a contentious issue. I'm sure Mr.
Gibson and you are both probably tired of this, and I'm sure we are
too, but if there was a reasonable compromise brought forward in this,
would you be a reasonable person and go along with the compromise?
MR. VASEY: Well, I think it depends on what --
COHMISSIONER NORRIS: I'm sure it does.
MR. VASEY: -- you mean by reasonable. Obviously, as I
said earlier, every principal structure on that beach from lot 1 to 17
is at least 50 feet behind the corrosion control line. Now, we have
talked with the Gibson group about some sort of compromise allowing
the home to be somewhat forward of the 50-foot line. But, you know,
it's very difficult to be specific when we have no response. We have
offered, in fact, to finance the elimination of the slab to pull up
the slab --
COHMISSIONER NORRIS: I'm not trying to be specific just
at the moment. I'm just asking you --
MR. DOYLE: Madam Chairman, excuse me. I need to object
at this point. Settlement negotiations are not to be brought before
this board sitting in a quasi-judicial capacity. Mr. Vasey's
representations to this board of what has been brought forward to my
client are in opposite to what we believe actually has occurred. We
don't want to get into that argument here. We simply want to go
forward with the hearing on where the line ought to be. And I think
it is legally inappropriate, and I would ask your counsel to advise
you that it is legally inappropriate for you to consider and discuss
any settlement discussions.
COHMISSIONER MAC'KIE: Mr. Cuyler, I've never been in a
courtroom, but I've seen it on TV.
CHAIRPERSON MATTHEWS: I think we all have lately.
COHMISSIONER MAC'KIE: And the judge says, you guys go
away and try to settle this and come back.
MR. CUYLER: Well, I've always taken the position you
can ask unless there are objections from the other side if -- if in
this proceeding the other side is going to object to it, obviously
they're going to be half of the settlement, or there's not going to be
a settlement so --
MR. VASEY: I'd like to suggest something, if I could.
We have a proposed solution which -- and I realize this is not the
time to go into it perhaps --
CHAIRPERSON MATTHEWS: This is not the time.
MR. VASEY: -- but I would encourage the board to review
the proposed solution that we've come up with, as I say, a
commissioned -- some well-known highly reliable architectural
community planning people, and we'd like nothing more than to have the
board of commissioners review that solution.
COHMISSIONER MAC'KIE: Mr. Cuyler, do we have a forum
appropriate to do that? I mean how could we do that?
COHMISSIONER HANCOCK: If I may, if the plaintiff
doesn't agree to this, it's a moot point. I'm sorry. If the
appellate doesn't agree to this, it's a moot point.
CHAIRPERSON MATTHEWS: Yeah.
COHHISSIONER HANCOCK: You know, if we're being forced
to answer the appeal today, we're going to have to answer the appeal.
And, Mr. Vasey, I understand. I've heard the same thing from both
sides. And to be honest, I feel like I'm holding two school kids
apart. I hear one side saying we've offered and the other side saying
we've offered, and both of you say the other doesn't respond. And,
you know, If we're going to sit here for four hours and then say let's
go away and sit down over a table and talk about this, I'm a little
perturbed. Are we here to hear an appeal, Mr. Cuyler, or are we here
to settle this?
MR. CUYLER: The purpose of this hearing is to determine
whether the interpretation that was rendered by Mr. Arnold is correct
or not, whether his interpretation is supported by competent,
substantial evidence.
COHMISSIONER NORRIS: Okay. Before I was interrupted by
Mr. Doyle, once again, I was not about to enter into any specific
agreement, but just try to find out if the parties are amenable to
some sort of settlement sometime in the future. We are going to
settle this appeal business tonight, but there's more. I mean that's
not going to be the end of it. So I just want to know if all parties
are willing to sit down and work it out once this appeal is finished,
which is going to be here fairly quick.
COHMISSIONER HAC'KIE: And while we're sort of paused,
I'm worried about all these jokes we've been making on the record
about, oh, God, we all want to go home, we all want to go home. I am
confident that everybody on this board is willing to sit till dawn if
that's what it takes to do the right thing and that we are not trying
to rush your side of the case, and I mean we're committed to hearing
it and trying to do the best thing we can.
CHAIRPERSON MATTHEWS: At the same time we're trying to
confine it to the appeal and not get too far astray, and that's --
MR. CUYLER: If both parties were saying give us some
time, we want to talk, continue it a week, I'd tell you that's fine,
you could go ahead and do that, but I don't hear that.
CHAIRPERSON MATTHEWS: I don't hear that either.
COHMISSIONER HANCOCK: I'd just hate to see all this
money and time being spent here today. I mean it really --
CHAIRPERSON MATTHEWS: Mr. Kobza, do you have more
information that you would like Mr. Vasey to get on the record?
MR. KOBZA: I have no other questions of Mr. Vasey.
COHMISSIONER MAC'KIE: Mr. Doyle.
MR. KOBZA: Do you have cross?
CHAIRPERSON MATTHEWS: Mr. Vasey, we still need you.
MR. DOYLE: Actually, Madam Chairman, I do not have any
questions for Mr. Vasey, but since he has not testified about anything
that has -- that is pertinent or relevant to this board's
interpretation of appropriate setback lines, we would ask that his
testimony be stricken from the record.
COHMISSIONER HANCOCK: Actually I do have a question for
Mr. Vasey. You -- you made -- you talked about the 50-foot setback
from what was going to be an erosion control line or something along
that line?
MR. VASEY: Right.
COHMISSIONER HANCOCK: Okay. This may be stretching
your memory, but do you remember having anything in writing that said
we ask you to be 50 feet from X, because if it was a -- a future line
or if it was a building control line, they're different. You just --
you recalled it being something that was going to become the erosion
control line?
MR. VASEY: That's right.
COMMISSIONER HANCOCK: I'm just curious if you remember
there was anything in writing on that particular -- MR. VASEY: Well, I know my contractor had specific
measurements from a line.
COMMISSIONER HANCOCK: A line. I'm just curious what
that line was called, something that firms up what that line was
called.
MR. VASEY: To me it was a setback line, and to me it
was a 50-foot setback line. I didn't know what an erosion control
line was at that time. It was a line that was intended to be the
erosion control line as far as I know, but our lot dimensions -- Mr.
Pettrow put his chart up there -- when we put the chart up there that
he referred to, our lot setback measurements were right there on that
chart for lot 12 and lot 13, so there were precise measurements but --
CHAIRPERSON MATTHEWS: Thank you. Mr. Kobza.
MR. KOBZA: Very good. And at this time I'll provide
our book to the court reporter. I'd like to also introduce into
evidence the environmental impact statement that was considered in
1979, and then I'd like to have Sue Delegal conclude our argument with
a presentation on the equitable estoppel argument. Okay?
CHAIRPERSON MATTHEWS: With a --
MR. KOBZA: Presentation on the equitable estoppel
argument.
CHAIRPERSON MATTHEWS: Okay.
MS. DELEGAL: Good evening. My name is Susan Delegal.
I am an attorney with the law firm of Holland and Knight.
CHAIRPERSON MATTHEWS: Would you spell your last name
for the reporter?
MS. DELEGAL: Yes, ma'am, D-e-l-e-g-a-1.
You've heard a lot of testimony this evening, and what
I'd like to do is, again, focus us back, I think, to the several
points that really are truly before you this evening, that being the
issue of whether or not your staff properly interpreted your code in
determining the interpretation request that had been filed by the
Vaseys on this property. We relied strongly and heavily on the
testimony that has been given to you by Mr. Arnold. He has indicated
to you that he determined that a 50-foot setback from the ECL was the
appropriate interpretation to be given under your code of ordinances,
and he specifically oriented you to section 4.04 2-D, I believe, of
your PUD regulations, which does provide that the setback for
accessory structures must be no less than 50 feet.
Much has been made about an argument that the original
building control line was established anywhere from 50 to 100 feet
from the existing shoreline at the time and that the accessory
structure provision was included in the PUD ordinance for the purpose
of dealing only with that. But what I think needs to be strongly said
to you is that that building control line was established based on a
setback from the property line, from the mean high waterline at that
time, the shoreline. It was the property line, and a setback was
established from the property line of somewhere between 50 and 100
feet that contemplated the additional section that states that
accessory structures may be closer to the water but no -- certainly no
closer than 50 feet from the rear lot line. The rear lot line is the
property line. Today the rear lot line is the ECL as a matter of
law. That law -- that line is the property line. And your staff has
said to you that it was never contemplated that -- and I will use his
word, that there should be a zero setback line from the property
line.
COHMISSIONER HAC'KIE: You said as a matter of law.
Would you repeat what you said right before that, as a matter of law
what?
MS. DELEGAL: As a matter of law the erosion control
line is now the property line separating the ownership of the State of
Florida from that of the upland owner.
COHMISSIONER HAC'KIE: And you're telling us that our
PUD -- we're only permitted to measure from that line by state law?
Our PUD '-
MS. DELEGAL: Not by state law, but by your own county
ordinance which provides that an accessory structure may be no -- must
be set back 50 feet from the rear property line. As a corollary to
that, if your accessory structure must be 50 feet back from the
property line, certainly the principal structure could be no closer
than that, and that is a primary point that your staff utilized in
coming up with a decision that they have come up with. There's been a
lot of testimony about what they think it means, what it was
originally intended to mean back in '79, but there's certainly been no
testimony that what he has indicated is incorrect as a matter of law
in his interpretation. With that I would like to address the estoppel
argument a little bit, because you've heard a lot of --
COHMISSIONER HAC'KIE: I have a question before you go.
CHAIRPERSON MATTHEWS: Hiss Hac'Kie.
COHMISSIONER MAC'KIE: I'm looking at the PUD document
for Hideaway Beach, February 18, 1992. It says it's a consolidated
document. And on page 14 I think it's the same section you mentioned
that Mr. Kobza refers to. It's in 4.04.04, and it's special lots
under D there.
MS. DELEGAL: Right.
COHMISSIONER MAC'KIE: And one of the kinds of special
lots are lots abutting the beach, and this -- so far I'm in the right
section, Mr. Cuyler?
MR. CUYLER: Correct.
COHMISSIONER MAC'KIE: And it says, a beach setback line
and our coastal construction setback line has been established for the
protection of the homeowner. This line marks the principal building
setback line.
MS. DELEGAL: Right.
COMMISSIONER MAC'KIE: Can you tell me on that map which
one is the coastal construction setback line? Is that the erosion
control line? Is that -- I mean, isn't that the whole point?
MR. ARNOLD: Can I please clarify a couple of points for
the record? It is my opinion that in reading that paragraph it
references a beach setback line and a coastal construction setback
line. In my opinion, the coastal construction setback line is not
applicable to those lots abutting the pass. That is in reference to
the other lots on the further south end of Hideaway Beach that
directly front on the Gulf of Mexico that are under the jurisdiction
of the CCSL line if you will, the coastal construction setback line.
COMHISSIONER MAC'KIE: And let me just go with you,
because even -- I've forgot her name, but the expert for Mr. Doyle's
side of the case said that there is no construction control line
affecting this particular property since it's not gulf front. So
throw out construction control line in D-2, and now we're just talking
about a beach setback line has been established for the protection,
and this line marks the principal building setback line. Where is
that line?
MR. ARNOLD: That line was denoted as the bold green
line that is now seaward of the original --
COHMISSIONER HAC'KIE: Can you tell me on any of their
maps?
MR. ARNOLD: Sure.
MR. CUYLER: That's called the building control line.
MR. ARNOLD: That was referenced as building control
line in the records.
COHMISSIONER HANCOCK: Green line on Exhibit 17.
COHMISSIONER HAC'KIE: Okay. Gosh. I mean it says what
it says.
MR. ARNOLD: Based on the exhibit, this is an aerial
photograph provided by the appellant. But what they've highlighted is
the building control line as platted as the bold green line. You can
see beginning on the subject lot these two lines again cross, and now
the building control line is seaward of the now building line or I
should say property line.
COHMISSIONER HAC'KIE: But this -- this property, this
proposed structure on lot 14 is landward, is set back from the beach
setback line that the PUD says this line marks the principal building
setback line.
MR. ARNOLD: It is, but that line is no longer
applicable on this particular lot, because it is no longer on their
property. It is now ownership of the state.
MR. CUYLER: The position that Mr. Arnold has taken is
that that provision you read that says 50 foot from the property line,
there is a new property line that has been injected into this
situation.
COHMISSIONER HAC'KIE: True, but that's not the one.
That's the one that applies to accessory structures. That's in sub
A.
CHAIRPERSON MATTHEWS: No, no, no, no.
COHMISSIONER MAC'KIE: It says beach setback line has
been established for the protection of the homeowner. This line marks
the principal building setback line. And then it goes on to talk
about accessory structure setbacks. But for principal building
setback line it says there's a line on the plat called the beach
setback line, and that's the line.
MR. ARNOLD: But our interpretation was based on a
couple of facts. One is the PUD language, the other being the plat of
record. And the other, if you will, was based on how other building
permits have been issued. I would tell you that for us to determine
that you can't have an accessory structure within 50 feet of this rear
property line, but you can go ahead and build your principal dwelling
from a planner's standpoint is not logical, which I realize logic
isn't always -- I work here. We deal with the facts and words. But
our interpretation is based partly on that premise. But if we go back
to the plat of record, it originally stated that the actual rear
property boundary is determined to be mean high waterlines which
anticipated that that line would fluctuate as the beach fluctuated.
So those lines were approximately set at 50 feet and 100 feet to show
that building control line based on the approximate shoreline in
1978.
By the time 1986 rolls around, that new shoreline is
where the new erosion control line is. Mr. Vasey's property was built
in 1987 right on the heels of a lot of heated discussion about how we
apply setbacks. In my review of his variance file, my review of his
building permit file, I would come to the conclusion his setback was
applied based on the eroded shoreline at that time, which now is the
erosion control line. It was not based on a mean high waterline, so
to speak. The mean high waterline functioned a dual purpose at one
point in time. And I hope I didn't --
COMHISSIONER MAC'KIE: I didn't follow it.
MR. ARNOLD: Okay. I'm sorry.
COMMISSIONER MAC'KIE: See, I'm -- I'm holding on to --
I want this house not to be where it started to be. It's a shame this
house is where it is. It's a shame, and maybe it won't end up. I
hope it won't. But if I'm supposed to say do I think there's
substantial competent evidence -- and I realize I'm out of order --
substantial competent evidence to disagree with Mr. Arnold, this line
on the plat and these words in the PUD are pretty substantial and
competent. So I'm saying that at this point in the hearing so you can
tell me where I'm wrong and before the hearing's closed.
MR. ARNOLD: Can I interject one more point that I think
I stated earlier? And let me reinforce it for the record to state
that the structure in question can be built at the erosion control
line is the same as arguing that there is no setback line from the
rear property boundary. Historically from the inception of this PUD
there was a minimum of 50-foot setback for any structure from the
shoreline.
MS. DELEGAL: Which is the property line -- which was
the property line established in 1979. There has always been since
the inception of this PUD regulation a setback measured from the
property line which was the mean high waterline, the shoreline in
1979, of no less than 50 feet.
COMMISSIONER MAC'KIE: For accessory structures it says
that.
MS. DELEGAL: True. But that's what was contemplated.
That's why the language here indicates the building control line is
the -- is the line which is demarcated for building the principal
structure, because it was created under the plat no less than 50 and
no more than 100 feet back from the property line at that time. The
accessory structure provision just builds on that and indicates that
you're still dealing with -- instead of having a line on a plat which
was established knowing that you were going to build back fifty to a
hundred feet from the property line, A allows an accessory structure
to go closer towards the water where you might have had the setback
say a hundred feet. The accessory structure can go forward, but in no
case, in no case closer than 50 feet to the rear lot line. You -- you
never have allowed an accessory structure, and by virtue of the
creation of your building control line in 1979, you never allowed the
construction of a structure of any sort, accessory or principal
building, within 50 feet of the rear property line. Today that rear
property line is the ECL.
COMMISSIONER MAC'KIE: Because it's totally illogical
for principal structures to be seaward of -- MS. DELEGAL: Right.
COMHISSIONER CONSTANTINE: Unless you want the pool in
the front yard.
MS. DELEGAL: Right. And that's why, Commissioner, we
would say that your staff would not interpret this in an illogical
manner. You have to interpret these matters with logic. And to say
that an accessory structure can -- could be -- has a -- has a
restriction which is more than a principal building just makes
absolutely no sense at all. The principal building certainly is the
primary structure that you're -- that you're dealing with. And to
allow the principal building to be on the lot line, whereas the
accessory structure could be further away -- must be further away just
does not make sense in an interpretation.
CHAIRPERSON MATTHEWS: Ms. Delegal, would you move on to
the estoppel argument?
MS. DELEGAL: Yes, I sure will. On the estoppel
argument I have not had the benefit of hearing the comments of my
opposing counsel. Certainly we have heard the testimony that has been
delivered, but I'm sure there's going to be a legal argument tying the
factual evidence that has been presented to the case law. And so what
I would like to do is probably anticipate their argument a little bit
and just very briefly advise you regarding that.
What they're attempting to do is to create an equitable
estoppel argument under the case law that's been evolved in the State
of Florida, and I know Mr. Cuyler is very aware of it. And
essentially what it provides is that equitable estoppel provides that
a governmental entity is estopped from taking a certain action when a
property owner has in good faith upon some act or omission that is
authorized by a government made substantial change in position or has
incurred extensive obligations or expenses that would be -- where it
would be highly inequitable to undo what has been done. In fact, the
cases that I reviewed that were submitted in the -- I believe in the
appeal to you all based on the equitable estoppel argument do say just
that.
However, there is an exception to that. There are
several exceptions to that. But the primary exception to that that we
want to commend to you this evening is that equitable estoppel does
not lie to prevent the revocation of a permit where the permit is
issued in violation of law or upon mistake of fact. And there are
cases to that effect. The Godson versus Town of Surfside case -- I'm
not going to go through all the citations. It's a supreme court
case
very similar to ours. A permit was issued in violation of a setback.
And there the Court supported the revocation of the permit based on in
this particular case a mistake of fact in reviewing the -- the permit
by the -- the local government, but the Court did acknowledge that the
local government officials had in their files information which would
have led to an acknowledgment of the discrepancy had they -- had they
so reviewed it. But in any event, even though the building permit had
been issued, the equitable estoppel argument did not lie because of
that mistake. Another case -- I'm just going to run through a couple
__
COHMISSIONER HANCOCK: Are these things you have in
writing you could submit for the record that don't require verbal
placement on the record?
COHMISSIONER MAC'KIE: Because I think that this board
is going -- is going to be on your side, that we're not going to say
that the county is estopped.
MS. DELEGAL: Okay. I don't know that, so I wanted to
make the arguments that there is -- there is case law out there which
says if there is a mistake of law, that you -- that the equitable
estoppel argument does not apply, and that applies to whether or not
you have issued permits, whether or not the -- a building has been
built. The courts have required buildings to be torn down, and there
are numerous cases to that effect.
In one case I just want to mention briefly, the Corona
Properties case, there was actually a letter, a vested rights
determination, which was made by an official of the city saying that
they could build 58 units. A building permit was issued. The Court
found that that official that wrote that letter did not have the
authority to write that letter. Therefore, the letter was ultravirus
and illegal, the building permit was illegal. And although the
property owner had spent over $82,000 to put a foundation in the
ground, that the permit was properly rescinded, and that's the point I
wanted to make to you about that. Thank you. CHAIRPERSON MATTHEWS: Thank you.
MR. GOODLETTE: Madam Chairman, may I just close with
one final procedural issue, and this will take just a second. This is
important, because it's from -- from your Land Development Code. It's
from the interpretations, and it's the burden of proof issue that
you've alluded to earlier, Commissioner Hac'Kie. And I want to read
this -- and if you'll just bear with me.
The board of zoning appeals -- I'm reading to you the
authority that you -- that you have sitting in the capacity that
you're sitting in this evening. And I'm reading from 1.6.6, the last
sentence, and it says, the board of zoning appeals or the building
board of adjustment and appeals, which is applicable in this case, of
course the board of zoning appeals shall not be authorized to modify
or reject the development services director's interpretation unless
such board finds that the determination is not supported by
substantial competent evidence.
COHMISSIONER MAC'KIE: It's the flip side of what I was
saying.
MR. GOODLETTE: Exactly right. And I think it's
important for you to understand who has the burden here. The
substantial competent evidence in this record for it to support the
interpretation and you -- you, therefore, may not modify or disapprove
it. And that's -- I just wanted to make that procedural point,
because I think it's very important to your deliberations. And that's
all I have, Madam Chairman.
CHAIRPERSON MATTHEWS: Thank you. I believe we're at a
point now where we're looking for summing up. Mr. Arnold, do you have
anything that you wish to sum up with?
MR. ARNOLD: I think for the record my summary has
already been given a few moments ago. I can certainly answer any
additional questions you might have when you are contemplating a
decision on this issue.
CHAIRPERSON MATTHEWS: Thank you. Mr. Doyle?
MR. CUYLER: Madam Chairman, for the record we don't
have any other registered speakers either. CHAIRPERSON MATTHEWS: Okay. Thank you.
MR. DOYLE: If it please the board, a few comments, if I
might, in summary. I'd like to look first at our position that
regardless of the correctness of this interpretation, whether it
should be interpreted in the manner which it is being interpreted
today, that that interpretation is made by Mr. Arnold cannot be
applied to the Gibsons.
As you will recall, the testimony is clear. There was
an opinion by an official, an official who had authority to give that
opinion. The only testimony before you is that Mr. Pettrow was
authorized to give such opinions. There is no testimony to the
contrary, not even from Mr. Arnold. He had the authority to give such
an opinion, and he did so. Mr. Gibson based his decision to purchase
this lot at a substantial sum of money, which is in the record, based
in part on the opinion of the county official. Then he set about to
design a home for the lot, and he applied for a building permit. And
his building permit application very clearly said that there would --
that he was required to have a rear yard setback of zero feet. The
county accepted that permit application and issued a permit, not
because they were in error, but because that was the practice of this
county at that time. Never had there been an opinion or
interpretation in this county that required anything other than a zero
yard setback from the erosion control line, never.
COHMISSIONER HAC'KIE: But are there any homes -- there
aren't -- but likewise, there are no principal structures anywhere on
here constructed seaward of the erosion control line.
COHMISSIONER CONSTANTINE: I would suggest we let Mr.
Doyle complete, and I think we'll probably all have questions, but let
him complete his comments.
COMMISSIONER MAC'KIE: Maybe.
MR. DOYLE: After he received his building permit, he
proceeded to build in reliance on the building permit that this county
issued. He spent a substantial sum of money, which is in the record.
That's not been disputed whatsoever. And then the county stopped him,
said, oops, we think there may have been a mistake, red tagged the job
December 9th of '84 (sic). Mr. Gibson then provided a new survey.
The county looked at it, said, oh, you are behind -- you are landward
of the erosion control line. Okay, sorry, our mistake, lift the red
tag, continue with construction again.
Now, counsel has cited to you the Godson case, and I
realize the last thing this board likes to hear is legal argument.
But I think it's very important to listen to what the Court said in
that case, because it is a Florida supreme court case. The court held
that based upon the record the equitable estoppel doctrine was not
applicable because of the specific factual circumstances involved in
that case. It was a very different case from the one with which you
are presented today. In that case the Court said the permit was
properly revoked, because about a month before the building permit was
issued and approximately eight months after the first survey, a new
survey was made by the owner's engineers preparatory to the
construction of a seawall and groins. The survey and the accompanying
plans showed that the shoreline had eroded, and the proposed building
would not fit on the lot without encroaching in the setback. So that
owner knew there was a problem before he ever began construction.
That is not the situation you have today. The case that
they have cited for you simply does not apply. All of the facts are
that the Gibsons relied -- reasonably relied on what this county did
to their detriment. And if you say today that they're to be set back
50 feet from the erosion control line, then they are being severely
damaged by that. Because of that we believe this interpretation
should not apply to lot 14.
But even if the interpretation were to apply to lot 14,
we want to point out to you that we believe that it is simply
incorrect. There's been a lot of talk about the lines and about the
problems. I don't know that I'm the one that can clear them up, but
I'm going to have to try. And if you'll bear with me for a couple of
minutes, I'd like to talk about the reasons that Commissioner Hac'Kie
-- that Mr. Vasey was required to sit back 50 feet from the mean high
waterline and the reason that Mr. Gibson can build out to the erosion
control line. The reason is relatively simple. They are two
different lines. If we look at Exhibit 8, we start by looking at the
building control line --
COHMISSIONER HAC'KIE: What color is it?
MR. DOYLE: The building control line is green on this
exhibit, and I apologize that this one is the one that has not been
reduced in your record.
MR. CUYLER: Mr. Doyle, could you repeat the exhibit
number or letter?
MR. DOYLE: This is Exhibit 8.
MR. CUYLER: 8.
MR. DOYLE: The appellant's Exhibit Number 8.
The building control line was established in the plat.
That's where that line came from. It came from the plat. How did
they arrive at that line? The testimony is that it was approximately
50 feet from the mean high waterline at the north end angling back
across Mr. Vasey's property until it became approximately a hundred
feet from mean high water at the south end of the beach. Now, it's
important that we note the distinction between the 50 feet and the
hundred feet, because that's what Section 4.04.04 is talking about
when it talks about the 50-foot encroachment of accessory structures.
That section of the code only applies -- get this right -- only
applies to the southern portion of the beach. This is the portion of
the beach where when it was originally drawn, the building control
line was a hundred feet from the water.
COHMISSIONER HAC'KIE: Are you talking about the beach
setback line?
MR. DOYLE: The building construction line or -- which
is referred to as the beach setback line in 4.04.04. COHMISSIONER HAC'KIE: Okay.
MR. DOYLE: This building control line was a hundred
feet from the water. Now, if we want to know what they were trying to
do when they established this line, all we need to do is to look at
the environmental impact statement that Mr. Kobza was kind enough to
put in the record for us. If we look at that environmental impact
statement, it says the purpose of the setback is to -- is to protect
the owners at a safe distance from the water. So these accessory
structures down here had to be a safe distance from the water. They
had to be 50 feet. But because they had established a building
control line, that was the principal structure setback. They couldn't
build their principal structure forward of the building control line,
but they allowed accessory structures to go forward of that so they
would not be -- but not any closer than 50 feet.
When we look down at Mr. Gibson's end of the beach,
there the -- as Mr. Duane testified, the lots are narrower. To
provide any real useful benefit from these lots whatsoever, they had
to move the building control out and let the -- the principal
structures move out to within a safe distance from the water, which
was 50 feet.
Now, the erosion control line that is present today and
to which Mr. Gibson can build under this -- under this code is not the
shoreline. The shoreline remains the mean high waterline. And so Mr.
Pettrow told you, here's how we look at it. Before beach
renourishment we looked first to make sure that the structure was
inside of the building control line except for accessory structures.
And, second, we had to make sure that both the principal and the
accessory structures were at least 50 feet from mean high water.
Those were the two things we had to look at, and that was all we had
to look at.
So when Mr. Vasey came along to build his house, he had
to be 50 feet from the mean high waterline and, in fact, that's where
he built. He built in 1987. If we look on Exhibit 8, we see the
erosion control line. It was adopted by ordinance in 1990, but please
note the date on Exhibit 8 for the erosion control line. It's 1988.
That's because the data that established -- from which the erosion
control line was established was gathered in 1988 -- COMHISSIONER MAC'KIE: Okay.
MR. DOYLE: -- not in 1990 when it was adopted by
ordinance. Therefore, Mr. Vasey, who built in 1987, built 50 feet in
from the mean high waterline, and that mean high waterline later is
approximately where later we established erosion control line, because
the erosion control line was established at the location of the mean
high water mark in 1988. Then we renourished the beach.
Then we have a new line that we have to deal with, and
Mr. Pettrow was clear about that. The erosion control line is the
property boundary. And as I said before, common sense tells you that
we cannot build seaward of the erosion control line, because we would
be building on state property. So not only do we have to be behind
the building control line, not only do we have to be 50 feet from the
mean high waterline, but we also have to be landward of the erosion
control line.
When Mr. Vasey built there were only two requirements.
He met those requirements. Now, when Mr. Gibson builds, there are
three requirements, and he meets all three of those requirements. If
we read the code section in the manner in which Mr. Vasey's counsel
would have us read it, it is illogical. It is illogical to suggest
that you have to have your accessory structures 50 feet back, but your
principal structure can be right up on the line. The problem is that
they're mixing apples and oranges here. What do we have? We have the
building control line, which was in effect when this ordinance was
passed. And the building control line was the line for the principal
structures, and you couldn't build forward of that. But you could put
your accessory structures forward of that principal structure line,
the building control line, if -- if you didn't put them closer than 50
feet to the water.
Now, if we look at 4.04.04, and I'd like to ask you to
turn to it for just a minute. It's under Exhibit 3, I believe, on
page 14. We now begin to realize that what we are doing is protecting
these structures from the water. We are not setting these structures
back from a property line. We are protecting them from the water.
So we read in subsection D-2-A, accessory structures
except where a coastal setback line is already established can extend
a maximum of 50 feet toward the water. And remember, the rear lot
line when this was drafted was the mean high waterline. So if we read
this together with the environmental impact statement, we realize that
what the board was doing was making sure that we don't build too close
to the water.
The building department has continued to do that. The
building department says build behind the building control line.
Build 50 feet from the mean high waterline. Build behind the erosion
control line. That is the logical interpretation of your own code.
And, in fact, it is an axiom of the law that an interpretation of the
code which would result in an absurd result should be discarded. I
would suggest to you that the result that they suggest is absurd. So
when we look to see what this PUD requires with regard to setbacks, we
see that it is really relatively simple. It requires these three
things, and we meet all of those things.
And so when Mr. Arnold says that we have to be 50 feet
back from the erosion control line, and he also tells you that the
erosion control line is the same as the mean high waterline, we
understood -- stand how he became confused. But from the testimony
and from what Miss Linnan told you today, it is clear that the erosion
control line and the mean high waterline are not the same. At one
time the mean high waterline had moved all the way up to where the
erosion control line is today, but that no longer exists.
And so because of the fact that we have shown you that
the interpretation is incorrect and that this interpretation, even if
correct, should not be applied to Mr. and Mrs. Gibson's residence, we
would ask that you overturn the interpretation rendered by county
staff.
CHAIRPERSON MATTHEWS: Commissioner Constantine.
COMMISSIONER CONSTANTINE: I just need to make sure I
understand a couple of comments you said, Mr. Doyle. You're
acknowledging that in this case the erosion control line marks the
boundary between state property and private property? MR. DOYLE: Yes.
COMMISSIONER CONSTANTINE: You are suggesting that there
is zero setback required on private property in this case?
MR. DOYLE: In this case unless the beach had eroded to
something within 50 feet of the erosion control line. It would still
have to be set back -- still has to be at least 50 feet from the
water. And the survey that is in the record shows that when the
building permit for the Gibsons was applied for, they were clearly
over 50 feet back from the mean high waterline.
COMHISSIONER CONSTANTINE: Okay. I just wanted to make
sure that's what you said. And the only other thing, at the beginning
of your comments you said Mr. Gibson had based his purchase upon the
written word of county employee at that time, David Pettrow. Perhaps
I misunderstood, or perhaps I'm remembering incorrectly. It seemed to
me when Mr. Gibson was at the podium, he said his purchase was based
on conversations with the architect for Hideaway, Mr. Lewis, that then
the design and work thereafter -- I had it written down -- design and
eventual permit work was done based on communication more directly
with the county including the written word, and I wanted to clarify.
MR. DOYLE: I did not mean to imply that Mr. Gibson had
any conversations with Mr. Pettrow. The testimony has to be taken
from all three of them. Mr. Pettrow rendered the opinion to Mr.
Lewis. Mr. Lewis said he gave Mr. Gibson advice based upon that
opinion, and Mr. Gibson relied on the advice that he received.
COMMISSIONER CONSTANTINE: My question is on the dates
or the order in which all that took place. Again, maybe I'm
remembering improperly, but it seemed to me that what was testified to
was not in that exact order, not that all the contact was made
including the written word prior to the purchase. Maybe I'm
mistaken.
MR. DOYLE: The written opinion from Mr. Pettrow was in
1992. The evaluation of the property was in the spring of '94 and
purchased in March of '94.
COHMISSIONER CONSTANTINE: Thank you.
CHAIRPERSON MATTHEWS: Commissioner Hac'Kie.
COHMISSIONER MAC'KIE: I agree with everything you
said. I think that everything you said is exactly correct and is --
it's as plain as the nose on your face that that's what the PUD says.
The thing that I haven't heard you address is what Mr. Goodlette read
to us a moment ago, and that is the jurisdiction, if you will, of this
board only extends -- let me get it right -- that we cannot overrule
the interpretation unless we find that there's no substantial
competent evidence to support Mr. Arnold's interpretation. And I
haven't heard you say that there is no substantial competent
evidence. I've heard you said something like on the weight of the
evidence --
MR. DOYLE: I would say to you that there is not
substantial competent evidence to support this opinion. The reason is
the misunderstanding of the equation between the erosion control line
and the mean high waterline. They are not the same. At one point in
time they were the same. That was in 1988. They have not been the
same since. And it was upon that basis that Mr. Arnold rendered his
opinion. He is equating a setback from the water, which is required
by the PUD, and a setback from the -- from the property line which he
says is required but is not found anywhere in the PUD. So I would
suggest to you that there is not substantial competent evidence to
support his opinion. That does not mean that he did not have a reason
for giving that opinion, and -- and I think his opinion was rendered
certainly in good faith, but I believe that it was incorrect.
CHAIRPERSON MATTHEWS: Commissioner Hancock.
COHMISSIONER HANCOCK: I don't question that a strict
interpretation solely of this section of the PUD gives merit to your
argument. My difficulty comes in -- and I -- for me a pivotal element
is in paragraph A under D-2 on page 14 where it references the rear
lot line. When Hideaway Beach was initially planned, the construction
line was landward from the rear lot line initially. With the
establishment of the erosion control line, that rear lot line was
effectively moved. Do you agree with me there?
MR. DOYLE: The rear lot line prior to the erosion
control line actually was in a constant state of flux, because the
mean high waterline moves constantly. COHMISSIONER HANCOCK: Correct.
MR. DOYLE: And when the erosion control line was
established, then it was established as a permanent line and, yes,
that line is landward of where the lot -- the boundary had been
previously.
COHMISSIONER HANCOCK: So for all practical purposes,
Mr. Arnold is not incorrect in assuming that the erosion control line
is, in fact, the rear lot line?
MR. DOYLE: No. We have never questioned that the
erosion control line is, in fact, the rear lot line. COHMISSIONER HANCOCK: Okay.
MR. DOYLE: That is as a matter of law, and there is no
dispute regarding that.
COHMISSIONER HANCOCK: Okay. In a situation in which we
have an old document before us -- and let's -- by all practical
purposes for Naples, Florida, this is old -- and we have changes in
our Land Development Code, and the two are conflicting, the stricter
of the two apply. Do you agree with that?
MR. DOYLE: I'm sorry. Would you repeat that again?
COHMISSIONER HANCOCK: Where we have a discrepancy
between a definition in a PUD and a definition or an application in
the Land Development Code, the stricter of the two will apply?
MR. DOYLE: Under your current Land Development Code,
that is correct.
COHMISSIONER HANCOCK: And under the code at the time
the building permit on the Gibson residence was pulled, that was
correct, was it not?
MR. DOYLE: I don't know the answer to that,
Commissioner, and I would not presume to give my opinion without --
COHMISSIONER HANCOCK: And the reason I set those steps
is because I'm getting to something I can't get away from, okay.
Because, as I said, you have some extremely valid points, and I don't
refute them. But we have a code that says a setback is measured from
a rear property line. We can't get away from that. It's in the
code. We have --
MR. DOYLE: I don't want to interrupt, but I would have
to disagree with that.
COHMISSIONER HANCOCK: You have.
MR. DOYLE: Yeah, I have. I don't find that in the PUD
it says that we are to measure a setback from the rear lot line or
from the rear property line.
CHAIRPERSON MATTHEWS: It says it right here.
COHMISSIONER HANCOCK: It says -- it references in
measuring the setback for accessory structures the rear lot line.
Page 14, section D, paragraph 2-A, it states in the last two lines
leading to the beach closer than 50 feet from the rear lot line. I'm
-- we've talked about logic all night tonight, and I'm trying to walk
through this and tell you where there's a sticking point that I can't
get past. We've established that the erosion control line is, in
fact, the rear lot line. We have a Land Development Code that unless
I hear otherwise or someone can prove to me otherwise I have to assume
at the time this building permit was pulled said the stricter of the
two will apply. Okay, I've only -- I've practiced planning from '90,
and that's as far back as I can go. So we have a problem in
definitions. And, in my opinion, Mr. Arnold took the stricter of the
two approaches.
MR. DOYLE: That would be true if this provision applied
to Mr. Gibson's lot. It does not. If we read it very carefully in
light of the location of the building control line, it would only
apply to those lots at the south end of Hideaway Beach where the
building control line was originally established a hundred feet back
from the mean high waterline. You can build up -- your principal
structure up to the building control line, and then you can build your
accessory structures even closer to the beach providing you don't get
closer than 50 feet to the water. At our end of the beach --
COHMISSIONER NORRIS: No, rear lot line. It says rear
lot line.
MR. DOYLE: Well, no. If you look up in -- let me just
read it to you. A beach setback line and/or -- I'm sorry, down in A,
accessory structures can extend a maximum of 50 feet toward the
water. That is toward the water from the building control line --
COHMISSIONER CONSTANTINE: No. Keep reading what it
says here.
MR. DOYLE: -- except where such extension shall bring
such structures except for boardwalks leading to the beach --
COHMISSIONER CONSTANTINE: -- closer than 50 feet from
the rear lot line.
MR. DOYLE: -- from the rear lot line.
Now, you can't build an accessory structure closer than
50 feet to the mean high waterline, which at that time was the rear
lot line.
COHMISSIONER HANCOCK: But it isn't anymore, nor was it
when your permit was pulled, sir.
COHMISSIONER CONSTANTINE: So just to follow up on your
point, your original point was the stricter of the two. I don't
believe there is -- maybe I'm mistaken, but I don't believe there is
any residential permit in our Land Development Code that allows for a
zero setback. Mr. Arnold, is that correct?
COHMISSIONER HANCOCK: Side yard only.
CHAIRPERSON MATTHEWS: Side yard.
COHMISSIONER CONSTANTINE: Yeah, on the rear.
COHMISSIONER MAC'KIE: But, guys, you know, all this
business --
COHMISSIONER CONSTANTINE: No, wait a minute. Let me
get my question answered.
MR. DOYLE: There is nothing in the -- in the code that
would prohibit a zero setback for zoning.
COHMISSIONER CONSTANTINE: Mr. Arnold? Mr. Arnold.
MR. ARNOLD: For the record, to my knowledge, the
current Collier County Land Development Code does not contemplate any
accessory structure or I should say any principal structure as well to
be zero feet except for the exceptions we currently have in that
through the PUD zoning standard, which we will look at cjustering
standards, we will look at development proposals and then render that
as either appropriate or not appropriate based on surrounding land
use.
COMMISSIONER CONSTANTINE: And, in your opinion, that's
not what has happened here in this?
MR. ARNOLD: It's my opinion that a zero-foot setback
was never ever contemplated for beachfront properties on Hideaway
Beach which is the situation we would be arising to tonight if the
interpretation is held invalid.
COMMISSIONER NORRIS: As a matter of fact, Mr. Arnold,
that is why back in -- I don't know the year now. Let's see, yeah,
1976 they established this building control line was to get it 50
feet, 70 feet, and a hundred feet back from the rear lot line; is that
not correct?
MR. ARNOLD: That's staff's opinion that that was
addressed from the shoreline, the mean high waterline or, if you will,
the property line in effect at that time, because those terms are not
used specifically under the principal structures. We then had to
interpret that this has to apply as well, not only to accessories, but
to principal structures as well.
COMMISSIONER MAC'KIE: Can I ask a question of Mr.
Arnold on that point?
CHAIRPERSON MATTHEWS: Yeah. We want to get on, though,
to the other summary, Commissioner Mac'Kie, so if you would quickly.
COMMISSIONER MAC'KIE: Well, it seems like we're making
a lot of to do about -- that when there are conflicting ordinances in
the county, that the stricter controls. But, in fact, Mr. Arnold,
isn't it true that the -- when you have a PUD ordinance, it controls
unless it's silent on a point at which -- and in its silence you turn
to the general county ordinances? But this PUD is not silent with
regard to rear setbacks, so we don't get into this question.
COMMISSIONER HANCOCK: In essence -- and I'm sorry. I
just want to interrupt. In essence, I'm reading this, and what I get
from it is the principal structure can be at the erosion control line,
but the accessory can't. I mean when I read it, that's what I'm
getting from it.
MR. ARNOLD: That's what the appellant is asking you to
agree to -- COMMISSIONER MAC'KIE: That's what it says. I don't
like it.
MR. ARNOLD: That would only be the case because we had
the introduction of a new line which was the erosion control line.
COMMISSIONER HANCOCK: And at that time this PUD should
have been amended. It wasn't, and we're sitting here discussing this
today because those lines have, in essence, evened up instead of
staying where they were.
MR. ARNOLD: Well, I think that's partly true. And I
think a lot of this goes back to the previous letter that Mr. Pettrow
rendered. It would be my opinion that there was still a formal
procedure, albeit one we would encourage every property owner to have
to go through to make a determination of where they can and can't
build. We would like the language to be very, very clear as to where
that could happen. Because we have a new controlling line, the
erosion control line that was not contemplated in 1979, that can't
happen, so we've had to interpret that line based on the best evidence
we have of how the original lines might have been established. We
know that that original building control line was 50 feet from the
shoreline, the property line, and the mean high waterline at the time
it was established. When I go back to the PUD today and I say I have
a new property line, it also was a mean high waterline at one time,
and you start looking at other factors relative to beach renourishment
and other county ordinances that may have come into effect, that's the
opinion we rendered.
CHAIRPERSON MATTHEWS: Okay. Mr. Doyle, are you
finished with your summary?
MR. DOYLE: Just -- just one other item. We have --
there has been some discussion about the more restrictive applying,
and Commissioner Hancock seemed to indicate that he was aware of
that. We do not find that in the code prior to that being passed this
year. I will not tell you I just finished now reading every word of
the code, but we do not find that.
One other item, and I bring this up only because there
were questions raised by the commission during -- during the hearing.
We have argued the Gibsons' legal rights with regard to this piece of
property. We are not suggesting to you that the Gibsons will not
consider moving this property back. In fact, I think you know by
things that were presented to you previously that that remains a
possibility. So we are not suggesting to you that this home must be
built all the way to the erosion control line, but we believe that you
must rule that it is our right to do so. Thank you very much.
CHAIRPERSON MATTHEWS: Mr. Goodlette.
MR. GOODLETTE: Madam Chairman, I'm going to be very
brief, because most of what I was going to point out the members of
the commission have pointed out in their questions. But I think there
are just two important issues here. First is and was acknowledged
that there are two possible interpretations. I'm suggesting to you
that where there are two possible interpretations, the substantial
competent evidence here supports the interpretation that your planning
services administrator has provided, and you should support and
approve that interpretation.
The second thing is that all of these -- and,
Commissioner MacIKie, I think maybe youlre focusing on the 4.04.04
that I want to come back to. But I think the more important
overriding issue is you have to look at the interpretation, and itls
found in pages 7, 8, and 9 of your agenda materials. You have to read
that altogether in para materia. You have to read that altogether.
And thatls what youlre -- thatls what Mr. Arnold did when he rendered
that interpretation. Itls a valid interpretation. Itls a supportable
interpretation. Itls an interpretation that doesnlt permit a property
owner to gain by virtue of the establishment of the ECL, which I think
Mr. Gibsonls counsells argument would have me believe that -- that
somehow with the establishment of the ECL where it was, therels going
to be some benefit to that property owner. I think thatls not what
was intended when this PUD document was approved. And I just want to
-- to come back in closing and point out that 4.04.04, which is what
they keep coming back to, clearly does contemplate -- if it were to
read, as Mr. Doyle would have suggested that it read, it would have
said at the end of subparagraph D-2-A on page 14 or at page 83 of your
agenda materials, the words from the rear lot line would have said
toward the water, and it doesnlt say that. It simply doesnlt say
that. I mean itls clearly designed, and it describes the rear
property line, and it describes 50 feet forward of it, and it
describes accessory structures. And I think itls indeed consistent
and supported by the evidence before you this evening that the
interpretation placed upon this by Mr. Arnold is clear that he -- and
I think itls consistent, frankly, and logical that a principal
structure canlt be built where an accessory structure cannot be
built. And thatls just clear, and thatls all we have this evening.
And we appreciate your time and your attention.
CHAIRPERSON MATTHEWS: Mr. Cuyler, you said there were
no speakers on this.
MR. CUYLER: No members of the public, correct.
CHAIRPERSON MATTHEWS: Iim going to close the public
hearing. Commissioner Hancock?
COMMISSIONER HANCOCK: It seems very clear to me that to
deny this appeal is not the end of this issue for this board but the
beginning of an amendment process, because to do so is going to create
nonconforming lots for principal -- possibly principal structures and
accessory structures. It seems clear to me also that the Gibson
residence canlt stay where it is.
CHAIRPERSON MATTHEWS: Mr. Cuyler.
MR. CUYLER: Let me encourage you to make findings
whichever way you go on this.
CHAIRPERSON MATTHEWS: Yes, fine. Commissioner Norris.
COMMISSIONER NORRIS: Iim going to wrap it up -- and try
to wrap it up and make a motion. I think Commissioner Constantine
wants to get a comment in.
CHAIRPERSON MATTHEWS: Do you want to get a comment in
before the motion?
COMMISSIONER CONSTANTINE: I was going to make a motion
to go ahead and -- probably when I second the motion, Iill make a
comment.
COMMISSIONER NORRIS: Well, I disagree with my colleague
here. I think there's not very much too clear about this whole deal,
and that's the problem, that the two things that are clear is that we
need to make a determination of what we're going to do here with the
appeal, and we need to clear up the PUD, because it's not clear, and
that is our problem.
This is an issue that's gone on way too long, especially
tonight, and we need to go ahead and move forward so that everybody
can get back to their lives. If we deny this appeal today, it's going
to cause real problems with Lots 14, 15, 16, and 17, because they
become too small to -- to be effective. We need to -- to go into this
PUD amendment and, number one, clarify it, get everything back on the
record as it should have been done before; and, number two, see -- see
what we can do to work out that -- that northern end of that beach.
As far as findings go to the appeal, it seems to me that
while there are points on both sides, that there is not a predominant
substantial competent evidence supporting the appeal. That
predominant competence substantial evidence appears to be on the side
of denial. So I'm going to make a motion that we do deny the appeal
based on those findings, and I'm going to further move that we direct
the staff to bring back to us as soon as practical the ability to
amend this PUD and to go forward with that process.
CHAIRPERSON MATTHEWS: Commissioner Constantine.
COHMISSIONER CONSTANTINE: I'll second the motion to
deny the appeal and uphold Mr. Arnold's opinion. And I'm basing that
comment and I will base my vote on obviously the testimony and
evidence provided but particularly the comments -- the 50-foot setback
in my mind, as Mr. Goodlette said in his final comment, is from the
property line. It is not from the water. To have a zero setback I
think is contrary to what we do virtually anywhere in the county. And
I don't think it is an appropriate argument. I don't think -- I think
it's fairly obvious if you cannot have an accessory use within 50
feet, it's not intended that you would have your principal use there.
I made the joke earlier, but I think it clarifies the absurdity of
it. You're not going to have your swimming pool in your front yard.
And if you can't have the accessory use, clearly the principal use was
not intended either. I think taking into consideration Mr. Arnold and
Mr. Hissimer's comments and Ms. Denigal (phonetic) -- is that correct
-- she had a couple of comments that I think helped. We were talking
about whether things were clear or not, and I think her comments in
particular helped clarify for me some of the issues we're dealing with
here. So I will second the motion.
CHAIRPERSON MATTHEWS: The motion has a second. Is
there further discussion? Commissioner Hac'Kie.
COHMISSIONER MAC'KIE: This -- this morning when we
first started this when we were talking about NRPAs, everybody was so
hot on private property rights that we wouldn't talk about doing a
NRPA, and now we -- we have plain language in the PUD that I hate,
that I wish it didn't say what it says, and I wish that this house
couldn't be built where it can be. But the question is not what did
the board intend when they adopted the ordinance. The question is not
what did we mean it to say. The question is what does it say.
CHAIRPERSON MATTHEWS: Uh-huh.
COHMISSIONER MAC'KIE: And it says what the appellant
says it says. I wish it didn't, but it does. And we're -- we're
playing a game of not being honest, because we don't like the result
if -- if we overturn -- unless we overturn the appeal -- unless we
overturn the interpretation, because it -- there's no logic. We can
wish it said something else, but it doesn't.
COHMISSIONER NORRIS: I think a couple of us board
members probably just don't agree with your reading of the PUD
language, that's all.
COHMISSIONER CONSTANTINE: I take a little umbrage at
not being honest.
COHMISSIONER HAC'KIE: I didn't mean for any bad
purpose. I just meant I am tempted to say -- I'm tempted to go along
with the motion, because I like that result, but I don't think it's
the true interpretation.
COHMISSIONER HANCOCK: Commissioner Mac'Kie, I'm
inclined to -- if I were to look solely at the typed words in these
two paragraphs in front of me, I am inclined to agree with you. But
when you look at the determination made by the development services
administrator or his designee in these types of areas, what occurs
within two paragraphs is not all the information necessary to make a
valid and comprehensive decision, because as I said, I agree with
you. This says you can build it up to that line, but yet your
accessory structure has to be 50 feet away.
It appears to me what we have here is language that is
not valid for the situation. I can't support language that is not
valid for the current existing conditions. What we can do is change
that language.
COHMISSIONER HAC'KIE: I want to change it.
CHAIRPERSON MATTHEWS: I believe that's what the motion
is, is to deny the appeal, but to give direction to staff to bring a
PUD amendment back to us so that we can change the language and have
it more suitable to what is really going on in today's world. I -- I,
for one, am not having any difficulty with the motion. And the reason
I'm not having any difficulty with the motion is that we -- we have
these references in here of all kinds of different lines which were
established in 1979. We've been through a beach erosion process and
the establishment of new state-owned boundaries. And half of these
lines have gone away, because they're on state-owned property now.
And -- and unfortunately that does affect lot 14, that the -- the
building control line is on the beach, and -- and the state owns that
property. So that -- that's where I'm coming from on it.
Commissioner Hancock.
COHMISSIONER HANCOCK: I would like to request the
motion maker, if the motion should pass, I would like to see the PUD
amendment expedited, because we have the finances of at least one
individual.
COHMISSIONER NORRIS: The motion was to do it as soon as
practical.
COHMISSIONER HANCOCK: Okay.
MR. CUYLER: It's on track. The Planning Commission is
hearing it Thursday.
CHAIRPERSON MATTHEWS: Thursday they're hearing it?
MR. ARNOLD: The Planning Commission will be hearing the
proposed PUD amendment this Thursday, July 20th. This commission is
scheduled to hear the item August 8th.
CHAIRPERSON MATTHEWS: On the following Tuesday?
COHMISSIONER CONSTANTINE: August 8.
CHAIRPERSON MATTHEWS: Oh, August the 8th, two weeks,
three weeks, okay.
I'm going to call the -- call the question. All those
in favor please say aye.
Opposed?
COMHISSIONER MAC'KIE:
CHAIRPERSON MATTHEWS:
is denied.
Aye.
Motion passes 4 to 1.
The appeal
Item #14
BOARD OF COUNTY COMMISSIONERS' COMMUNICATIONS
Okay. Let's move forward. We are at the end of the
agenda for today at communications. I presume we don't have a great
deal. Commissioner Norris, do you have anything? COHMISSIONER NORRIS: Nothing.
CHAIRPERSON MATTHEWS: Commissioner Hancock.
COHMISSIONER HANCOCK: Just quickly, the FAC Conference.
I was elected to the directorship for the next two years. At the
annual conference for FAC on Marco, I've taken the place of
Commissioner Matthews. I was elected as a director of FAC for the
next two years, so hopefully I'll be bringing all their information to
you and giving you reports on that. And since we made a budgetary
item for FAC, I thought it would be important for you to know I was in
that position.
CHAIRPERSON MATTHEWS: One less chore. Commissioner
Hac'Kie.
COHMISSIONER MAC'KIE: Nothing.
CHAIRPERSON MATTHEWS: Commissioner Constantine.
COHMISSIONER CONSTANTINE: Along the lines with FAC, I'm
happy to tell you the new chairman and president has asked me to chair
the finance and taxation committee for them, so I'll see you at the
meetings on occasion, I guess.
CHAIRPERSON MATTHEWS: Good, fine. I believe we are
finished. Ready to adjourn?
COHMISSIONER NORRIS: Miss Filson said we could go.
CHAIRPERSON MATTHEWS: We're adjourned.
***** Commissioner Norris moved, seconded by Commissioner
Constantine, and carried unanimously, that the following items under
the Consent Agenda be approved and/or adopted: *****
Item #16A1
ACCEPTANCE OF REPLACEMENT MAINTENANCE SECURITY FOR THE INFRASTRUCTURE
WITHIN "HEERS SUBDIVISION"
See Pages
Item #16A2
RESOLUTION 95-386, GRANTING FINAL ACCEPTANCE OF THE ROADWAY AND
DRAINAGE IMPROVEMENTS FOR THE FINAL PLAT OF "COLLINS SUBDIVISION"
See Pages
Item #16A3
RESOLUTION 95-387, GRANTING FINAL ACCEPTANCE OF THE ROADWAY, DRAINAGE,
WATER AND SEWER IMPROVEMENTS FOR THE FINAL PLAT OF "SPINNAKER POINTE AT
WINDSTAR"
See Pages
Item #16A7a
Item #16A7e
SATISFACTION OF LIEN FOR RESOLUTION 92-36 RE FERNAND LESSARD AND
PAULINE LESSARD, LOT 1, BLOCK 63, MARCO BEACH UNIT 2
See Pages
Item #16A7b
SATISFACTION OF LIEN FOR RESOLUTION 91-318 RE SORAYA GONZALEZ, GOLDEN
GATE UNIT 4, BLOCK 145 LOT 6
See Pages
Item #16A7c
SATISFACTION OF LIEN FOR RESOLUTION 95-314 RE JUAN AND ANA VAZQUEZ,
GOLDEN GATE UNIT 5, BLOCK 161 LOT 4
See Pages
Item #16A7d
SATISFACTION OF LIEN FOR RESOLUTION 95-120 RE STEVEN BRAY, WILLOW WEST,
LOT 40
See Pages
SATISFACTION OF LIEN FOR RESOLUTION 95-86 RE GEORGE AND KAREN SEIBERT,
MARCO BEACH UNIT 6, BLOCK 226 LOT 5
See Pages
Item #16A7f
Item #16A4
AUTHORIZATION FOR RECORDING THE FINAL PLAT OF "THE SHOPS AT EAGLE
CREEK, UNIT ONE"
Item #16A5
AUTHORIZATION FOR RECORDING THE FINAL PLAT OF "AIRPORT ROAD PLAZA"
Item #16A6
RESOLUTION 95-388, GRANTING FINAL ACCEPTANCE OF THE ROADWAY, DRAINAGE,
WATER AND SEWER IMPROVEMENTS FOR THE FINAL PLAT OF "LELY RESORT, PHASE
SIX"
See Pages
SATISFACTION OF LIEN FOR RESOLUTION 95-93 RE RONALD AND ROSE MARIE
WALLIN, CONNOR'S VANDERBILT BEACH ESTATES UNIT 1, BLOCK D LOT 22
See Pages
Item #16A7g
SATISFACTION OF LIEN FOR RESOLUTION 95-87 RE JOHN AND ELIZABETH BOYLE,
NAPLES VILLAS BLOCK E, LOTS 17, 18, 19, & 20
See Pages
Item #16A7h
SATISFACTION OF LIEN FOR RESOLUTION 95-166 RE EDNA MITCHELL, MARCO
BEACH UNIT 13, BLOCK 417 LOT 14
See Pages
Item #16A7i
SATISFACTION OF LIEN FOR RESOLUTION 95-125 RE RONALD AND ROSE WALLIN,
CONNOR'S VANDERBILT BEACH ESTATES UNIT 1, BLOCK D LOT 23
See Pages
Item #16A7j
SATISFACTION OF LIEN FOR RESOLUTION 94-450 RE KEITH AND BARBARA HC CAIN
- PORT-AU-PRINCE LOT 97
See Pages
Item #16B1
REPORT TO THE BOARD ON COLLIER COUNTY SCHOOL TRAFFIC CONDITIONS ALONG
SCHOOL ROUTES, ANALYSIS OF EXISTING CONDITIONS AND RECOHMENDATIONS FOR
IMPROVEMENTS AT SCHOOL ZONES ONN COUNTY ROADWAYS
Item #1682
REQUEST THE BOARD REVIEW REQUEST FOR ROAD IMPACT FEE CREDITS FOR CASA
DEL VIDA (AKA PARSON'S GREEN) AND AUTHORIZE THE CHAIRMAN TO SIGN ROAD
IMPACT FEE AGREEMENT
See Pages
Item #1683
INTERAGENCY AGREEMENT BETWEEN COLLIER COUNTY AND THE STATE OF FLORIDA
DEPARTMENT OF CORRECTIONS FOR CONTINUED USE OF INMATE LABOR IN ROAD
MAINTENANCE ACTIVITIES
See Pages
Item #16C1
CONTINUATION CONTRACT FOR GROUP RESPITE CARE WITH THE CARE CLUB OF
COLLIER COUNTY, INC.
See Pages
Item #16D1 - Deleted
Item #16D2
ENFORCEMENT OF THE NOTICE TO CONNECT TO COLLIER COUNTY WATERAND/OR
SEWER FACILITIES AND NOTICE OF IMPACT FEE STATEMENT - PINE RIDGE
INDUSTRIAL PARK HSTU AND NAPLES PRODUCTION PARK HSTU
See Pages
Item #16D3
SUBORDINATION AGREEMENT FOR JAMES AND BRENDA HOUSERAND THE BOARD OF
COUNTY COHMISSIONERS OF COLLIER COUNTY, FLORIDA, AS THE GOVERNING BODY
OF THE COLLIER COUNTY WATER-SEWER DISTRICT
See Pages
Item #16D4
SATISFACTIONS OF NOTICE OF PROMISE TO PAY AND AGREEMENT TO EXTEND
PAYMENT OF SEWER IMPACT FEES FOR BARBARA WICKS BALLARD,, DIANA B. CLUB,
JAMES EDWARDS, FRYER CHUCK INC., TRACI F. HERNANDEZ, CLYDE AND LORINE
SULLEN, TERRY AND NADENE TICKNOR, ABBIE WASSERHAN TRUSTEE, AND JOHN AND
HELANIE WILSON
See Pages
Item #16D5
SATISFACTION OF CLAIH OF LIENS FOR TRACY AND DAISY DETWEILER, CALVIN
AND KIHBERLY KELCHNER, AND RICK LOVE
See Pages
Item #16D6
CORRECTED SATISFACTION OF NOTICE OF PROMISE TO PAY AND AGREEMENT TO
EXTEND PAYMENT OF SEWER IMPACT FEES FOR PETER E. PRUE, SR.
See Pages
Item #16D7
SATISFACTIONS OF NOTICE OF PROMISE TO PAY AND AGREEMENT TO EXTEND
PAYMENT OF SEWER IMPACT FEES FOR JEROME J. CLAUSEN, CHARLES AND ABBIE
GRIFFITH, CHRISTOPHER NEAL, AND ROBERT AND ELEANOR NICKERSON AND
DOROTHY DALTON
See Pages
Item #16El - Moved to Item #BE1
Item #16H1
COMPETITIVE BID PROCESS WAIVED; STAFF TO NEGOTIATE A CONTRACT TO BE
BROUGHT BACK TO THE BOARD FOR THE PURCHASE OF AN INTEGRATED SPECIAL
ASSESSMENT MANAGEMENT SOFTWARE AND HARDWARE PACKAGE FROM THE MAINLINE
CORPORATION FOR THE SOLID WASTE COLLECTION AND DISPOSAL SPECIAL
ASSESSMENT
Item #16H2- Deleted
Item #16H3
AUTHORIZATION FOR REIMBURSEMENT TO THE CHAIRMAN OF THE MARCO ISLAND
BEACH RENOURISHHENT ADVISORY COHMITTEE FOR EXPENSES TO BE INCURRED
DURING ATTENDANCE AT THE 40TH ANNUAL MEETING OF THE FLORIDA SHORE AND
BEACH PRESERVATION ASSOCIATION TO BE HELD SEPTEMBER 6-8, 1995 IN PALM
BEACH, FLORIDA - IN THE ESTIMATED AMOUNT OF $574.00
Item #16H4
CHANGE ORDER NUMBER ONE IN THE AMOUNT OF $41,478.00 FOR CONTRACT NO.
95-2347 (PROJECT 1-94-1 & 1-94-2) TO THE AMERICAN UNDERGROUND
UTILITIES, INC. CONTRACT FOR THE IHMOKALEE REGIONAL AIRPORT INDUSTRIAL
PARK ENTRANCE ROAD & UTILITIES CONSTRUCTION PROJECT
See Pages
Item #16H5
UTILITY EASEMENT WITH IHMOKALEE WATER & SEWER DISTRICT FOR WATER LINE
AT THE IHMOKALEE REGIONAL AIRPORT
See Pages
Item #16H6
CERTIFICATES OF CORRECTION TO THE 1994 AND 1995 SOLID WASTE COLLECTION
SPECIAL ASSESSMENT ROLLS AND AUTHORIZATION FOR REFUNDS AS APPROPRIATE
See Pages
Item #16H7
SUPPLEMENTAL AGREEMENT NO. 4 TO THE CONSULTING LANDSCAPE ARCHITECT
SERVICES AGREEMENT WITH HC GEE & ASSOCIATES, INC. TO PROVIDE ADDITIONAL
SERVICES RELATIVE TO OBTAINING PERMITS FOR CONSTRUCTION OF IMPROVEMENTS
IN PHASE TWO OF THE IHMOKALEE MEDIAN BEAUTIFICATION PROJECT - IN A LUMP
SUM FEE NOT TO EXCEED $3,500.00
See Pages
Item #16H8 - CONTINUED TO JULY 25, 1995
Item #16H9
The Following Items Were Approved During The Board's Absence By The
County Manager As Authorized:
Item #16H9a
TWO TOWER USE AGREEMENTS PREVIOUSLY SUBMITTED BETWEEN THE STATE OF
FLORIDA DEPARTMENT OF TRANSPORTATION AND COLLIER COUNTY AS PART OF THE
800 HHZ RADIO SYSTEM
See Pages
Item #16H9b
ACCEPTANCE DOCUMENT FOR THE $450,000 COPS AHEAD GRANT #95CCWX0265 AND
RELATED BUDGET AMENDMENT
See Pages
Item #16H9c
LEGAL FEES RELATED TO LITIGATION OVER CONSTRUCTION OF THE NORTH COUNTY
REGIONAL WATER TREATMENT PLANT, INCREASING THE PURCHASE ORDER FOR
OUTSIDE LEGAL COUNSEL BY $100,000
Item #16H9d
WORK ORDER WITH WILKISON & ASSOCIATES, INC. TO PROVIDE PROFESSIONAL
ENGINEERING/SURVEYING SERVICES FOR THE HANATEE SCHOOL OUTFALL DITCH -
IN THE ESTIMATED AMOUNT OF $9,860.00
See Pages
Item #16H9e
RESOLUTION 95-389 RELATING TO THE STATE HOUSING INITIATIVES PARTNERSHIP
(SHIP) PROGRAM AMENDING THE LOCAL HOUSING ASSISTANCE PLAN FOR FISCAL
YEARS 1995-96, 1996-97, AND 1997-98
See Pages
Item #16H9f
RESOLUTION 95-390 CANCELING CURRENT TAXES UPON LAND ACQUIRED FOR PUBLIC
USE ON A PORTION OF PROPERTY KNOWN AS BERKSHIRE LAKES PUD CONTAINING
APPROXIMATELY 1.043 ACRES OF LAND, MORE OR LESS
See Pages
Item #16H9g
CHANGE ORDER NO. 2 FOR CONSTRUCTION OF THE COURTHOUSE SECURITY WALL,
CONTRACT NUMBER 95-2344 - IN THE AMOUNT OF $5,497.00
See Pages
Item #16H9h
RECOHMENDATION TO ESTABLISH A BUDGET FOR EXPENDITURES RELATING TO
ACCESSIBILITY ISSUES - FUNDS TO BE APPROPRIATED WITHIN FUND 190
Item #16H9i
VARIOUS COUNTY-OWNED PROPERTY DECLARED SURPLUS AND AUTHORIZATION OF
SALE AND DISPOSAL OF SAME - AS LISTED IN THE EXECUTIVE SUMMARY
Item #16H9j
TIPPING FEES WAIVED FOR CLIENT OF THE COUNTY'S AGING PROGRAM FOR A
SPECIAL CLEAN-UP
Item #16H9k
CONSENT ORDER AGREEMENT WITH THE FLORIDA DEPARTMENT OF ENVIRONMENTAL
PROTECTION
See Pages
Item #16H91
AGREEHENTS BETWEEN HC GINLEY MAINTENANCE, INC. AND COLLIER COUNTY TO
PAY THE CONTRACTOR 100e OF THE REVENUE FROM RECYCLED MATERIAL COLLECTED
AT COLLIER COUNTY GOVERNMENT BUILDINGS
See Pages
Item #16H9m
RESOLUTION 95-391 AND RESOLUTION 95-392, TO ENTER INTO TWO URBAN AND
COHMUNITY FORESTRY GRANT MEMORANDA OF AGREEMENT BETWEEN COLLIER COUNTY
AND THE FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
See Pages
Item #16H9n
CONTRACT BETWEEN UNITED TELEPHONE COMPANY OF FLORIDA D/B/A SPRINT
UNITED TELEPHONE OF FLORIDA AND THE BOARD OF COUNTY COHMISSIONERS
See Pages
Item #16H9o
EMERGENCY MANAGEMENT PREPAREDNESS AND ASSISTANCE TRUST FUND GRANT
APPLICATION FOR THE FUNDING OF A DISASTER RESPONSE TEAM
See Pages
Item #16H9p
BUDGET AMENDMENT 95-376 RE FUNDS BUDGETED IN CAPITAL OUTLAY
REAPPROPRIATED TO OPERATING EXPENSES FOR LEASE PURCHASE ITEMS
Item #16H9q
BID #95-2382 RE CONSTRUCTION OF THE COLLIER COUNTY JUVENILE DRILL
ACADEMY SANITARY SEWER IMPROVEMENTS PROJECT - AWARDED TO GUYMANN
CONSTRUCTION OF FLORIDA, INC. IN THE A_MOUNT OF $168,679.00
Item #16H9r
BUDGET AMENDMENTS 95-353; 95-364 AND 95-367
Item #16H9s
AGREEMENT FOR PURPOSES OF PROVIDING A HAXIHUH EXPENDITURE OF $50,000
FROM THE GAC LAND TRUST FOR THE DESIGN AND ENGINEERING OF AN EMERGENCY
MEDICAL SERVICES SUBSTATION TO BE CONSTRUCTED ON COUNTY OWNED PROPERTY
LOCATED WITHIN NORTH GOLDEN GATE
See Pages
Item #16H9t
BID #95-2379 FOR THE CONSTRUCTION OF A SCRUB FENCE ON THE WESTCLOX
PARCEL, LOCATED IN IHMOKALEE, FLORIDA - AWARDED TO CARTER FENCE CO. IN
THE A_MOUNT OF $20,398.00
Item #16H9u
WORK ORDER WA-3S WITH WILKISON AND ASSOCIATES, INC. IN THE A_MOUNT OF
$10,500.00 TO PERFORM LAND SURVEYING OF FIVE PARCELS IN SECTIONS 30 AND
31, TOWNSHIP 50 SOUTH, RANGE 27 EAST, SABLE PALM ROAD AREA, FOR THE
MASTER MITIGATION LAND PURCHASE
See Pages
Item #16H9v
ACCESS EASEMENT AGREEMENT TO PURCHASE AN ACCESS EASEMENT FROM ROBERT H.
JAEGER AND RICHARD L. JAEGER FOR $3,550 PLUS CLOSING COSTS NOT TO
EXCEED $600 ON LAND SITUATED IN SECTION 29, TOWNSHIP 50 SOUTH, RANGE 27
EAST
See Pages
Item #16H9w
BUDGET AMENDMENTS 95-383 AND 95-389
Item #16H9x
BUDGET AMENDMENT FROM FACILITIES CONSTRUCTION FUND 301 RESERVES FOR
INFORMATION TECHNOLOGY DEPARTMENT OPERATING EQUIPMENT - IN THE A_MOUNT
OF $33,000.00
Item #16H9y
BUDGET AMENDMENT TRANSFERRING FUNDS INTO THE COHMUNITY DEVELOPMENT
SERVICES ADMINISTRATION BUDGET - IN THE A_MOUNT OF $27,200.00
Item #16H9z
RESOLUTION 95-393 AUTHORIZING THE DEFERRALS OF IMPACT FEES FOR JOSE A.
BORJAS AND MARIA LUISA BORJAS, ON LOT 3, BLOCK 245, GOLDEN GATE, UNIT
7, COLLIER COUNTY, FLORIDA, ALSO KNOWN AS 5072 28TH AVENUE S.W.
See Pages
Item #16H9aa
RECOHMENDATION TO PURCHASE (3) 1995 S-10 PICK UP TRUCKS AS A LEASE
PURCHASE WITH LEASE RESOURCE, IN THE AMOUNT OF $32,290.77
Item #16j
MISCELLANEOUS CORRESPONDENCE - FILED AND/OR REFERRED
The following miscellaneous correspondence as presented by the
Board of County Commissioners has been directed to the various
departments as indicated:
Item #16J1
CERTIFICATES OF CORRECTION TO THE TAX ROLLS AS PRESENTED BY THE
PROPERTY APPRAISER'S OFFICE
1991
No. Dated
282 6/22/95
1992
200 6/22/95
1993
219 6/22/95
1994
168/169 6/8/95
171/172 6/15/95 - 6/22/95
Item #16J2
SATISFACTION OF LIENS FOR SERVICES OF THE PUBLIC DEFENDER
See Pages
Item #16K1
BUDGET AMENDMENT IN THE A_MOUNT OF $428,500.00 TRANSFERRING FUNDS FROM
RESERVES TO REDEMPTION OF LONG TERM DEBT
Item #16K2
SATISFACTION OF LIEN DOCUMENTS FOR LIENS FILED AGAINST REAL PROPERTY
FOR ABATEMENT OF NUISANCE
See Pages
Item #16K3
REQUEST THAT THE BOARD OF COUNTY COHMISSIONERS RECOGNIZE A FIVE DOLLAR
($5.00) INCREASE IN THE COST OF STANDARD SUPERVISION, PER PERSON, PER
MONTH, AS ASSESSED FOR SERVICES PROVIDED TO DESIGNATED COURT ORDERED
DEFENDANTS BY THE COLLIER COUNTY PROBATION DEPARTMENT AND PROVIDED FOR
BY FLORIDA STATUTE, CHAPTER 948
Item #16L1
CONTRACT WITH THE EAST NAPLES CIVIC ASSOCIATION FOR $30,000 TOURIST
DEVELOPMENT REVENUE
See Pages
There being no further business for the Good of the County, the
meeting was adjourned by Order of the Chair at 9:50 p.m.
BOARD OF COUNTY COMMISSIONERS
BOARD OF ZONING APPEALS/EX
OFFICIO GOVERNING BOARD(S) OF
SPECIAL DISTRICTS UNDER ITS
CONTROL
ATTEST:
DWIGHT E. BROCK, CLERK
BETTYE J. MATTHEWS, CHAIRPERSON
These minutes approved by the Board on
as presented or as corrected
TRANSCRIPT PREPARED ON BEHALF OF DONOVAN COURT REPORTING
BY: Catherine Hoffman, Shelly Semmler, and Barbara A. Donovan