BCC Minutes 12/17/1997 S (LDC Amendments) SPECIAL MEETING OF DECEMBER 17, 1997
OF THE BOARD OF COUNTY COHMISSIONERS
and
LET IT BE REMEMBERED, that the Collier County Commissioners in
for the County of Collier, having conducted business herein, met on
this date at 5:05 p.m. in SPECIAL SESSION in Building "F" of the
Government Complex, East Naples, Florida, with the following
members
present:
CHAIRMAN:
Timothy L. Hancock
Pamela S. Hac'Kie
John C. Norris
Timothy J. Constantine
Barbara B. Berry
ALSO PRESENT: David C. Weigel, County Attorney
Bob Fernandez, County Administrator
CHAIRMAN HANCOCK: Good evening. I'd like to welcome you to
the
December 17 Board of County Commissioners meeting scheduled for
5:05.
This is for the purpose of a second hearing of Land Development
Code
Amendments, proposed amendments.
In order to get the meeting started, we're going to ask Mr.
Fernandez if you would lead us in the invocation, followed by the
Pledge of Allegiance.
MR. FERNANDEZ: Heavenly Father, we come to you in this
holiday
season as a community, thanking you for the blessings that you have
so
are
generously provided. Today we are especially thankful for the
dedicated staff, elected officials and members of the public who
here to help lead this county as it makes the important decisions
that
will shape our community's future.
We pray that you would guide the decisions made here today so
that your will for our county would always be done. In your name,
we
pray. Amen.
(The Pledge of Allegiance was recited in unison.)
CHAIRMAN HANCOCK: Thank you, Mr. Fernandez.
Item #2A
ORDINANCE 97-83 AMENDING ORDINANCE NUMBER 91-102, THE COLLIER
COUNTY
LAND DEVELOPMENT CODE - ADOPTED WITH CHANGES
Next on our agenda is the advertised public hearing dealing
with several amendments to the Collier County Land Development
Code,
for which we have Mr. Mulhere here to walk us through. For those
individuals here that are or wish to speak on a particular item on
the
in
it
now.
agenda, we ask that you fill out a speaker's form, which is located
the hallway, submit it to Mr. Fernandez, here to our right, to your
left, so that we can get through this in an orderly fashion. Mr. Mulhere.
MR. MULHERE: Thank you, Mr. Chairman.
COMMISSIONER MAC'KIE: Can I just ask you a question first?
CHAIRMAN HANCOCK: Yes.
COMMISSIONER MAC'KIE: On the agenda, there is one item that I
had hoped to add to tonight's agenda, and I don't know if you would
want that to be at the beginning or the end, or if you'd consider
being added at all.
CHAIRMAN HANCOCK: Probably most appropriate to bring it up
COMMISSIONER MAC'KIE: Could I do that? Because, as you know,
because I announced it at Tuesday's board meeting, and you all
received copies of the letter, Mr. Dale Chlumsky has offered to
donate
a two and a half acre piece of property on Bayshore Drive for a
potential park associated with the redevelopment of that area.
What I found out today in correspondence with Mr. Chlumsky, is
that the gift requires its acceptance before year end for his tax
planning purposes. What I have passed out to each of you is a copy
of
not
the tax bill for the two parcels of property, and a short list of
issues of five potential issues to be considered about whether or
we should accept the donation.
And what I'd like to ask you to consider is giving the County
Administrator authority to accept the donation of the property
subject
to clearance of any of these five issues.
The first one is basically --
CHAIRMAN HANCOCK: I'll tell you what, let's do this. Before
putting it on the agenda and then we can go through that, I think
we
better go through the LDC amendments first. Hr. Weigel, the first
question is, obviously putting this on the agenda without having it
advertised in any way, are we in compliance with county codes or
have
we -- I just want to make sure that we can take this action tonight
if
the board desires to put this on the agenda.
MR. WEIGEL: Yes. The answer is yes, that you can take this
action tonight, specifically with the caveat that I think she is
going
to tell you.
CHAIRMAN HANCOCK: Okay. Does anyone object to putting that
after the advertised public hearing for BCC?
Seeing none, let's go ahead and add that under "other", gift
of
the
property by Dale Chlumsky, but we'll go ahead and get through the
advertised public hearings for the Land Development Code first, and
then after everyone has left, the room is empty and it's just the
seven of us left, and the court reporter, we can --
COHMISSIONER CONSTANTINE: Quickly work our way through.
CHAIRMAN HANCOCK: -- discuss that one.
COHMISSIONER HAC'KIE: I promise to be quick.
CHAIRMAN HANCOCK: Okay. Any other additions or changes to
agenda? Happy to see none. Mr. Mulhere?
MR. MULHERE: Thank you, Mr. Chairman. As you will recall, at
the first LDC amendment hearing held on December 2nd, there was
really
only one issue that -- which involved substantial discussion from
the
public, and that was the amendment proposed to the landscape
section
of the code dealing with the requirement for a signature and seal
by a
landscape architect.
are
I do have two relatively small changes on two of the other
amendments that Iwd like to discuss with you first. Stan Kosnowski
from the engineering review staff is present tonight in case there
any questions. One of the minor changes -- if Mr. Arnold will hand
out the changes -- deals with section 3.4.7.1.3 and pre-blast
inspections.
Commissioner Constantine had asked a question at the initial
hearing with regards to the formula that was used. And when we
went
back and looked at it, we agreed that it really wasnwt spelled out
very clearly as we first proposed it. So we did amend that. Itws
the
no
to
and
same formula but I think it reads a lot better. There really are
substantive changes to that amendment, but I did want to bring that
your attention.
CHAIRMAN HANCOCK: Okay. Any questions?
MR. MULHERE: The second -- the second minor changes that --
Commissioner Hancock, you brought up the issue of towers in the
business park district, and whether or not that was appropriate at
this time.
We went back and looked at that. And in fact, we are
proposing
to bring forward as part of the EAR driven amendments, a
comprehensive
set of amendments to the business park district. And based on
that,
staff would suggest that we not add that amendment to allow towers
in
the business park district at this time, that we bring it back with
the EAR driven amendments, and with a more comprehensive review for
your consideration, rather than in a piecemeal fashion.
CHAIRMAN HANCOCK: Thank you, and I appreciate that being
withdrawn. It was kind of isolated all by itself there without a
good
reason. So thank you to you and Mr. Milk for doing that.
MR. MULHERE: Those are really the only two minor changes
between
the initial hearing and this one. I do not know if any one in the
public is here to speak on any other issue, other than the
landscape
section.
CHAIRMAN HANCOCK: Okay. Let me go ahead and ask one question
and make a statement. First of all, is there anyone here from the
public to speak on any item other than the landscape architecture
code
change?
(No response.)
CHAIRMAN HANCOCK: Okay. So everyone who is here is here
either
as an observer or to speak on the amendment to the LDC regarding
the
section on nurserymen and landscape architecture; is that correct?
I see everyone's head saying yes. Okay. Since that is going
to
be the main topic of discussion, or the only topic of discussion
apparently tonight, I'm going to remind everyone -- the reason we
have
two public hearing is not to hear the same things twice. It's to
have
an opportunity to identify concerns and issues at the first
hearing,
an opportunity to address those and to address them in a final form
before the board approval in a second hearing.
So if you have nothing new to present, if you wish to simply
restate your either support or your lack of support for what's
being
proposed, I would appreciate you being concise. Because if you do
go
you
had
on, and I recognize you're making statements and in an area that
were in a couple weeks ago, I'm going to ask you to curtail your
comments and limit yourself to new information the board has not
the opportunity or option to consider.
Again, in the interest of time and process, I would appreciate
your cooperation on that.
If it's okay with you, Mr. Hulhere, why don't we go ahead and
proceed to that section of the Land Development Code?
MR. HULHERE: Just to refresh the board's memory, the proposed
amendments are fairly small in nature, but apparently not minor in
content. The recommendation of the staff was to, based on a
request
by the public, by a member of the public, to amend the code to
reflect
the statutory exemptions, including one for nurserymen. The
County
Attorney's Office reviewed that request and recommended to us that
we
amend the code by adding the words, "prepared by," which we propose
do.
The Planning Commission, however, in their review of the
proposed
amendments, made a slightly different recommendation. And their
recommendation was that we amend the code to go back to the
language
that existed prior to October, 1996, in which the board amended the
code to simply require the seal of a landscape architect, and make
no
reference to the exemptions provided for in the statutes.
So the Planning Commission, by a four to three vote,
recommended
that we go back to the language that was in the code prior to
October
of 1996, which required the signature and seal of a landscape
architect, but also specifically referenced the exemptions provided
for in state statutes.
There was one other thing I wanted to get on the record. It's
been brought to my attention that at the initial hearing, I
indicated
we had counted the Site Plans that were reviewed in 1996 and said
that
approximately 60 percent did not bear the signature and seal of a
landscape architect. The year that we counted was both 1995 and
1996.
And in 1995, the figure was between 50 and 60 percent did not bear
the
seal of a landscape architect.
However, in 1996, when we did for part of the year require the
signature and seal of a landscape architect, the number was much
higher, 70 percent. So I did want to clarify that for the record.
CHAIRMAN HANCOCK: Mr. Weigel, we had this discussion at
length,
but I'll ask for it in a more concise manner here. By the proposed
language by our staff, are we in any way in conflict with state
statute, in your opinion, in this matter? MR. WEIGEL: No, absolutely not.
CHAIRMAN HANCOCK: Okay. Are there questions of staff or of
legal at this point? Seeing none -- I know it's difficult to take
man wearing this kind of hat seriously, but -- COMMISSIONER BERRY: Over here. Can I ask Mr. Weigel a
question?
CHAIRMAN HANCOCK: Please. Go ahead.
COMMISSIONER BERRY: The current language that is on the books
now, does this have any affect on quote, property rights of
individuals?
MR. WEIGEL: I don't think so, no.
COMMISSIONER BERRY: Okay. In the case of doing any work on
one's own property, is there any conflict there in terms of being
able
to do something? If you can meet the code and you're not a
landscape
architect, is there -- there is not a problem in that?
COMMISSIONER MAC'KIE: Can I draw an analogy?
COMMISSIONER BERRY: Yes.
COMMISSIONER MAC'KIE: If I'm not a contractor, well, you can
do
it under builder as a contractor. But if I -- you can't do an
owner-builder on a commercial SDP kind of site.
The same analogy would apply here. You've got to have the
appropriate licenses to do the work for the commercial
construction,
because this is not -- doesn't apply to single family.
COMMISSIONER BERRY: Well, you're right. But it does apply to
what if you own your own piece of property for your own business?
COMMISSIONER MAC'KIE: If you're not a contractor, you can't
build your own commercial structure, either. Am I right about
that?
MR. MULHERE: Yes.
COMMISSIONER CONSTANTINE: Surely, you're not suggesting
planting
flowers and building a building are the same thing.
MS. STUDENT: I think maybe I can answer that question. The
it
statutory exemption just talks about people that own their own
property. It doesn't say what the classification will be, whether
be industrial, commercial or residential.
And our code presently has and has always had an exemption for
mobile home, I believe duplex and single family. We feel that
that's
what -- you know, there's an ambiguity there in the law and the
exemption in the legislation.
But we feel that there is a public health, safety and welfare
concern and that the Legislature had to have intended the single
family property owner or the mobile home owner, as the case may be,
because, when you have multi-family property, you have industrial
property or commercial property, you have a greater intensity of
use.
You have members of the public that come onto that property. You
have
greater impacts on your neighbors.
And we think the county is justified from the public health,
safety and welfare aspect of looking at that exemption and
construing
it to mean that it has to apply to the single family, duplex or
mobile
home property owner for public health, safety and welfare reasons.
COMMISSIONER MAC'KIE: And the point is, that it isn't like
building a house, but neither are we talking about just planting
flowers. I mean, there's so much more to compliance with the SDP
and
landscaping code, than just planting flowers. And that's the
point.
CHAIRMAN HANCOCK: Commissioner Berry, I've heard the "you're
taking my rights away" argument, too. But we heard that argument
when
we adopted architectural standards, that we're taking their rights
away and freedom of doing things the way they wanted to do it. And
are
just think that that's a red herring.
I think what we have to look at is the level of standard we
asking for in commercial, industrial and public use type
properties,
that it is, in fact, higher than that.
property
that you live on, that is your home.
the community is different.
Commissioner Constantine?
That is your personal
I think that the standard for
to
the
COMMISSIONER CONSTANTINE: I promise you I won't spend a great
deal of time tonight, particularly because I don't have the voice
do it.
But I agree with you the standard is different. But I just
repeat from two weeks ago, we ought to base our decisions on that
standard, not on who it is trying to meet that standard.
Regardless of whether they are licensed or not, if they meet
standard, they get a permit. If they don't meet the standard, they
don't.
So I agree with you the standards are different in our
community
and they should be. But trying to decide who can take a shot at
those
standards and who shouldn't, is where I have a problem with it.
COMHISSIONER MAC'KIE: But it's similar to --
COMHISSIONER CONSTANTINE: Similar, but different.
COMHISSIONER MAC'KIE: And it's similar to so many things
where
you're licensed. I mean, you might know how to pull teeth, but you
can't do it without the appropriate license from the state. You
might
know how to appear in a court of law, but can't without it. I
mean,
and the list goes on, and landscape architecture is similarly
professional and has to have that kind of regulation, if you ask
me.
COMMISSIONER CONSTANTINE: Someone used the CPA analogy a
couple
of weeks ago and I would use that to support my argument in that
you
to
can choose what level. You still have to, when you send your stuff
off to the IRS, you have to meet certain standards. But you can
choose whether you want someone that is just labeled an accountant
do that, or you want a CPA to do that. You can choose.
And obviously, the licensed people have taken the effort and
gone
to a certain level and a CPA has taken the effort to go to that
next
level. But I can choose someone that's a bookkeeper, if I want, to
do
it. In that case.
COMMISSIONER MAC'KIE: Almost, except for certain functions.
And
Commissioner Berry does this better than I, but if you want an
opinion
that's acceptable by certain bodies, if you want certain higher
level
activities accountants are not permitted to give those opinions,
only
CPAs.
COMMISSIONER CONSTANTINE: Agreed.
CHAIRMAN HANCOCK: Commissioner Norris?
COMMISSIONER NORRIS: Mr. Mulhere, we're dealing with page
number
31 of our agenda packet; is that correct?
MR. MULHERE: That's correct
COMMISSIONER NORRIS: 2.4.3.17
MR. MULHERE: Yes.
COMMISSIONER NORRIS: This language that is printed in today's
agenda does not appear to be precisely what we discussed at the
last
hearing.
MR. MULHERE: The first amendment that's shown is the staff
recommended amendment and always has been. The second one is the
amendment that was recommended by the Planning Commission at their
second public hearing. It is different from what you had in your
last
package because we did not have that information, because the
Planning
Commission's second public hearing came so late, we were not able
to
get that in your executive summary package.
I did reference it at the public hearing verbally. But that
is
in
the recommendation of the Planning Commission, that second set of
language there.
But you're correct. That is different than exactly what was
the package in the first LDC amendments hearing, your first
hearing.
COMMISSIONER NORRIS:
tonight
is take our pick --
COMMISSIONER MAC'KIE:
COMMISSIONER NORRIS:
Okay. So what we are dealing with
Right.
-- or make a new one?
MR. MULHERE: Commissioner Norris, I only offered them so you
would be able to look at both options. COMMISSIONER NORRIS: Okay.
CHAIRMAN HANCOCK: Further questions of staff?
COMMISSIONER MAC'KIE: Would it be useful for the public
speakers
to know -- I mean, I'm pretty clear where I stand on this, and I
wonder if it might reduce the amount of public speakers if we sort
of
polled the board before we start.
Anyone interested in doing that besides me?
CHAIRMAN HANCOCK: That's fine, I think, in the interest of
time.
Barring any additional information that has not been presented to
me
at
or
to date, I don't see any reason to change from the position I had
our last hearing, which was either the language proposed by staff
the existing language in the LDC.
I have not made a decision between those two. But of those
two,
one, I think, is most acceptable for the community.
COMMISSIONER MAC'KIE: And I like the language proposed by
staff.
COMMISSIONER NORRIS: The language prepared by staff allows
anyone to prepare the plans, but it just simply means that they
have
to be sealed by a landscape architect before submittal.
MR. MULHERE: That's correct.
CHAIRMAN HANCOCK: And under state statute, though --
COMMISSIONER MAC'KIE: Right.
CHAIRMAN HANCOCK: -- that person has to work under that
landscape architect in order to do it. They have to have a formal
agreement. If it's, say, a nurseryman preparing the plans, he has
to
be working, in essence, for the landscape architect. Because
rather
than just seal it, the landscape architect is also required to
review
it, certify it and seal it.
COMMISSIONER NORRIS: I understood sealing it to mean that the
landscape architect is going to review it and put his professional
seal to it, and therefore, he's on the line and liable for any
mistakes.
CHAIRMAN HANCOCK: Right. I just -- I wanted to clarify that
because there was a comment at the last hearing, because it's
encouraging certain things outside the state statute, and I
disagree
with that.
Commissioner Berry?
COMMISSIONER BERRY: I don't know. This is probably one issue
since I've been on the Board of Commissioners I've been lobbied
harder
on this issue than any other issue that I have ever dealt with, and
by
the same people repeatedly, over and over. And I told somebody, I
said, I feel like I've had one person on one arm and one on the
other
and just tugging just as hard as they could, going in opposite
directions.
And I can understand both sides of the issue here. I'm not
really interested in taking anybody's livelihood away from them,
and
I've struggled with that situation.
On the other hand, I certainly understand the landscape
architect
side of it and the complexity of developing plans nowadays, as
compared to what it used to be. Things are a lot different now
than
what they used to be.
I'm going to tell you what I really thought about for a long
time
on this after I had been tugged in two different directions.
Number
one was to return to the original language before 1996, make sure
that
there was a definite committee that could sit down with our staff
and
review this again for about six months, and come back with a better
recommendation than what we have before us.
And in the meantime, the third aspect of it was, that if
anyone
had to have plans re-reviewed by our staff, every time they did,
the
penalty just doubled.
COMMISSIONER MAC'KIE: You mean in price?
COMMISSIONER BERRY: Now, that's going to do one of two
things.
You're either going to get with the program and do what you have to
do, or you're going to get out. And I'm, you know -- it's the
market's going to drive this thing out of here.
aren't
to
If you aren't capable of developing these plans, then you
going to be around. Because it's going to force you, if you're an
incompetent individual to do this, it's going to force you to get
work. And you're going to either -- number one, either go back and
get that certification, whatever length of time it takes, or you're
going to have to hook up with a landscape architect and develop
Some
kind of an agreement where you're going to work with that
individual
and do what's necessary to be done.
So that's exactly where I came off on trying to arrive at some
kind of reasonability on this particular area. I don't know how
that
flies with the rest of you, but that's kind of where I was, and it
may
be wrong.
CHAIRMAN HANCOCK: From experience from the private sector
with
development services --
COMMISSIONER BERRY: Right.
CHAIRMAN HANCOCK: -- let me suggest where that second option
of
the
so
the
an increasing penalty may fall apart. Even a design professional,
whether they be from this area or another area, there are small
details that need to be revised. It can be kicked out or it can be
after -- you can request that they change and bring it back.
But someone who submits something that is wholly inadequate,
review time is far greater, because you can't just say no, I reject
it. You have to state why you reject it, what is insufficient, and
forth.
So the quality of what comes in the door is going to affect
review time, regardless of the second phase penalty.
The other problem is, if you have a second phase higher
penalty,
what's the difference in a minor mistake and a major mistake in
that
penalty? There is somewhat of an inequity in there between red
lining
a plan with three or four details and saying it's wholly
insufficient;
and that's kind of a big gray area.
COMMISSIONER BERRY: You can start with the first review.
and
to
the
I
mean, you can more or less say, okay, I '11 give you one, all right.
I'll just kick the plan back and say, you know, it's inadequate,
here's basically it.
If you're quote the person that's doing this and if you think
you're professional enough to do this, you're going to understand,
be able to read that code and figure it out. If you're not, then
sky
next time you bring that back, and the fee from that point on is
high, it's going to make you think twice before you resubmit that
plan, because the next time you bring it back, it's going to cost
you
a bundle.
COHMISSIONER HAC'KIE:
possibilities
there.
COHMISSIONER BERRY:
I
I can hear a lot of positive
I don't know. I mean, this is just what
tried to come down with, some kind of a solution to this.
COMHISSIONER MAC'KIE: I think that's got a lot of potential.
The one thing that it doesn't address, in addition to what
Commissioner Hancock said, because those are valid points. I mean,
every plan gets kicked back a couple times, maybe three, maybe
five.
But the issue here is broader than that, because if what we
want
is only cookie cutter compliance with the code, then that is what
we
will get if anybody can draw the plans.
But if what we want is some variety, some creativity,
something
more than cookie cutter compliance, then that requires the higher
level of skill.
Our code is not detailed enough to -- I mean, it's the minimum
standard. It's not what we want for the community.
COMHISSIONER BERRY: I think you hit a key right there. If
you're telling us that the code is quote, the minimum standard,
then
__
COMMISSIONER MAC'KIE: And it is, to me.
COMMISSIONER BERRY: -- then, you know, I guess maybe my
reaction
to that is that maybe we ought to change the code. If you want a
higher level and a higher standard, then make that bar a little bit
higher to jump over.
COMMISSIONER MAC'KIE: And that's a balancing act that's
looked
at every time about how expensive are you going to make it to
develop
something. You know, you can't regulate every alternative.
COMMISSIONER BERRY: I understand that. I do. I understand
that.
COMMISSIONER CONSTANTINE: It's been regulated enough.
CHAIRMAN HANCOCK: I think the same -- again, I keep going
back
to architectural standards. There was unanimous support for, in
essence, raising the bar. But what we did is, we left in flexible
design criteria. In other words, you didn't want everything
looking
the same. What you're saying is, we're requiring you to consider
certain elements in your design and for those considerations to be
consistent. And only an architect can do that.
If you look at landscape design and if you're of the opinion
that
landscape design is really nothing more than drawing plants on a
diagram and planting them and maintaining them, then that kind of a
narrow view will probably not lead you to a point of saying that we
need landscape architecture in this community.
I happen to think that landscape architecture is not that
different than building architecture. The material is different,
what
you work with is different. But the product that you're trying to
create and the integration of that product into the physical
landscape, which -- we see it all the time. When a building is
built
and it's landscaped, it's there for 20 years. Like it or not,
you're
stuck with it; it's there.
It's just saying that the tools you bring to the table to try
and
make that a product that fits in with the community, with the
landscape architect, those minimum tools are known, because they've
achieved through a competency exam, and typically through either
education, experience, or combination of both.
The problem, is and you received a letter on it from David Nam
with the Florida chapter of ASLA, to become a nurseryman in the
State
of Florida requires the completion of an application and a $25 fee.
Now I'm sure there are other things that are required. But to
receive
that from the state, that's all there is to it.
So the question again is not a question of is this person or
that
person more qualified than the next, which has been the problem in
this argument, is there are people like Ray Pelletier that seem to
do
a very good job with their work.
The question is, on a broader scale, what is not only the
minimum
standard, but the minimum qualification that this board sees fit to
attach to fulfilling those standards.
Obviously, there's going to be a disagreement, at least, with
you
know, a couple of members of the board as to what that minimum
qualification should be. I can see that already. But I just
happen
to be of the opinion that that qualification should be that of a
landscape architect in these scenarios.
COMMISSIONER CONSTANTINE: See, I agree with you. You've hit
the
do
nail on the head there, except for the fact that I don't think it's
government's place to decide, you know, as to who can and who can't
it.
But I think you're right. That it's easy -- easier for a
nurseryman to go and do what they need to do with the state; the
fee's
smaller and the effort's smaller, and so on.
But the marketplace ought to sort that out. If you happen to
have a great nurseryman, they ought to be able to thrive; if you
have
a horrible nurseryman, that's going to catch up with him. If you
have
somebody that's not doing business well, it's going to catch up
with
him financially and it's going to catch up with him in the
marketplace.
And I just don't know that it's government's place to decide
who
can and who can't participate in that marketplace.
COHMISSIONER BERRY: Well, I think it goes back one step
further,
too. I believe the argument currently is probably going on in
Tallahassee. I don't think they can agree among themselves exactly
who should be doing what, when and where. And I think at some
point
in time, there will be a discussion -- maybe I'm wrong -- but it's
my
to
be
understanding that this is kind of one of those things that's going
be hassled with in Tallahassee. And I suspect that this next
legislative session that some of you will be up there, or you will
in contact with individuals that are, trying to state your
positions
on this.
And personally, I really think that's where a lot of this
ought
to be settled. I think it ought to be settled up there and
certainly
then, you know -- I'm not going to sit up here and tell you that I
want the standard lowered in Collier County. That's the last
thing.
I think the architect standards -- I'm sorry we didn't have them in
Collier County 20 years ago, okay, and I think that should have
happened.
CHAIRMAN HANCOCK: I was only 10.
COHMISSIONER BERRY: Whatever, you know. It should have been
that way and I appreciate the efforts that have gone through and
that
people have gone through to get to that point.
On the other hand, this is one of these areas, you know, that
it's very troubling to me -- and again, partially because there is
such disparity about this whole issue at the state level.
And this is where I have a little problem that, like Tim, I
tend
to agree that I think the marketplace is going to take care of part
of
this, and I'm not so sure how much government should be dictating
at
to
this level. I think if they are going to deal with it, they ought
deal with it up there and get it straightened out. And once it's
dealt with up there, I don't think we'll have any trouble down here
doing what we have to do.
COHMISSIONER NORRIS: Well, I have a divergent view.
COHMISSIONER BERRY: I'm sure you do, Commissioner Norris.
COHMISSIONER NORRIS: I think it is certainly the place of
local
government to decide this type of matter specifically. We do it
all
the time. If we'll remember back, those of us who were on the
board a
couple of years back, there was one gentleman that insisted that he
wanted to be able to -- see if I remember it right -- he wanted to
be
so.
able to install electrically lighted signs without a license to do
COHHISSIONER HAC'KIE: Huge problem.
COHHISSIONER NORRIS: And we denied that request. We don't
allow
somebody to go down and buy a $25 occupational permit and submit
engineering plans. Of course, we don't do that. COHMISSIONER BERRY: Right.
COHMISSIONER NORRIS: We don't allow me -- or we should not
allow
me -- to be able to go down and buy a $25 occupational permit and
submit a landscape plan the next day.
COHMISSIONER CONSTANTINE: We should not allow you, yeah, I
agree
with that.
(Laughter.)
COHMISSIONER NORRIS: Normally we should not do it. What else
we
he
should not do is to amend our land development codes to suit one
individual. I mean, there is one individual that may be completely
qualified, but he's not licensed. So if we make our code so that
can continue his business, how do we exclude all of the other
unqualified boobs like me that would be out there trying to do
landscape plans? You can't do it. You can't tailor your code to
suit
the circumstances of one individual. And that is one of my main
arguments.
And the other is that certainly, it's our job to make sure
that
we have licensed people submitting plans.
CHAIRMAN HANCOCK: Commissioner Berry, one thing that actually
they are in support of, but actually defend the idea that this is
not
an industry-wide blow to the gut, is the letters from Busy Bee
Nursery
and from Davenport Nursery that are supporting changing this,
because
they believe it is inconsistent with state statutes.
Both of them say the exact same thing. It has come to my
attention that the landscape code was changed October 30, 1996.
COMMISSIONER NORRIS: I saw that.
CHAIRMAN HANCOCK: Over a year ago this code was changed. For
over a year they have not been allowed to submit landscape plans,
yet
they are just now realizing it because fellow nurserymen have
called
them.
to
So the idea that this is a blow to the nurseryman industry in
Collier County is not supported even by those individuals that have
contacted us supporting that it be reverted back to the pre-1996
statement.
So, I have to agree with Commissioner Norris. You don't like
pinch one or two people when you start looking at any type of
regulation.
We could probably continue discussing this for 15, 20, 30
minutes
COMHISSIONER CONSTANTINE: Far too long.
CHAIRMAN HANCOCK: -- but we're here to really hear from the
public and then have our debate. So why don't we go ahead.
Mr. Fernandez, how many speakers do we have?
MR. FERNANDEZ: About 14.
CHAIRMAN HANCOCK: Okay. Let's go ahead and go to the
speakers.
Once again, I'm going to ask you, that we've already heard a
certain
amount of information from individual speakers. Please do everyone
a
favor, try not to reintroduce the same information or be
repetitive.
Let's just try and stick to the new information or statements of
support or objection. Thank you.
Mr. Fernandez, if you would call the speakers, please.
MR. FERNANDEZ: The first one is George Fogg; the second is
Earl
Wells.
MR. FOGG: Thank you. I'll be very brief. You've heard the
basic arguments; you've presented them all out here tonight. I
simply
would like to further reiterate just a couple of things that you
may
have missed. It is possible to get a license to practice
landscape architecture without having the degrees. I do, in fact,
assist people in doing -- going through that process, and it has
been
done successfully, as you all know. I don't need to go into that
any
further.
The second item I want to briefly mention is that it was
brought
up at the last meeting, and just to reiterate, there's a lot that
goes
into a landscape plan other than just planting. And you are all
well
aware of that and I don't want to dwell on that too far, other than
to
say that this is an extremely important aspect of the preparation
the county code plans.
And finally I would simply say, since what I hear from the
Board
of Commissioners is, it appears that the simplest course of action
since Commissioner Norris said until recently we hadn't had a
problem
-- I would say take no action and leave it as it is. And maybe, if
it
has to be, revisit it at later time.
If that isn't really possible the one other alternative is to
go
with the staff recommendation. But I think the current situation
works and I wouldn't mess with it.
CHAIRMAN HANCOCK: Thank you, Mr. Fogg.
COHMISSIONER HAC'KIE: Question while the next speaker's
coming
up, is this a three or four vote, Mr. Weigel? MR. WEIGEL: It's a four vote.
CHAIRMAN HANCOCK: Takes four affirmative votes.
MR. FERNANDEZ: Earl Wells and Ray Pelletier.
MR. WELLS: Thank you, Mr. Chairman, members of the
commission.
I'll identify myself. I'm the Executive Vice President, Florida
Nurserymen and Growers Association in Orlando. And obviously, we
would support the planning advisory board's recommendation.
However, let me make a couple other comments, if I could.
Historically, this has not been an issue throughout the state.
Nurserymen don't claim to be landscape architects.
When the law was written, it specifically made note of the
fact
that they could develop these plans, as long as they didn't use
those
terms. And I was part of the sundown or sunset revision in 1989 or
'91, and that was a sticking point as far as the architects were
concerned. They could, within the realm of their expertise, could
prepare plans as long as they didn't use those terms.
And I don't think these people are attempting to let anybody
accept the fact that they are landscape architects. They don't
deal
with fences, sidewalks, drainage, all of those things which are
related to landscape architecture. These people don't have
anything
to do with it; they don't claim to want to have anything to do with
it.
COHMISSIONER HAC'KIE: But our SDP plans require them to be
able
to have something to do with it, to be able to prepare a commercial
SDP site plan. That's the point.
MR. WELLS: But if you went back to the original law before
this
was adopted, they would have been able to prepare these plans, as I
understand it. Perhaps I'm --
COHMISSIONER HAC'KIE: 396, is that what we're talking about?
COHMISSIONER CONSTANTINE: Way back a year ago.
MR. WELLS: Okay. Nurserymen do know a lot about plants and
in
many cases, they know a lot more about plants than landscape
architects do. They, in fact, if you look at the criteria for
landscape architects, plants is a part of it, but it is a small
part
use
use
compared to all of these other things dealing with quote, and I'll
the words health, safety and welfare. The planting plans and the
of plants is a very minor part of the health, safety and welfare as
far as curriculum is concerned.
The lady made reference to the fact that we're putting some
people in jeopardy here. It's not going to put them out of
business.
It's not going to be a big blow, but it's certainly going to have
an
we
impact on their ability to make a living to a certain degree, and
need to recognize that.
Collier County nursery industry has a wholesale production
valued
at in excess of 21 million dollars. Those are not small potatoes,
folks. And all of these people involved in this nursery industry
are
can
in
part of that. That's just the wholesale value. Put an economic
indicator on that and I don't know what you get, 80 million 100
million, whatever. Whoever wants to put that figure on there, they
do that.
But wholesale value of the nursery industry in this county is
excess of 21 million dollars. Those people are important.
Admittedly
they got on the train a little late -- you've had this ordinance on
here for a year -- but in fact, they were not part of the process,
as
I understand it. That's their fault, and they should take the
blame
for it.
But by the same token, an industry of this magnitude should be
part of the process. And I would certainly, you know, concur with
Commissioner Berry's comment over here, maybe you need to go back
to
the drawing board and have involvement and input from the nursery
industry as it relates to how it impacts them.
I'll conclude by making a comment to your attorney here.
There
is an Attorney General's opinion which would certainly indicate
that a
limitation for only a landscape architect to be able to seal these
plans is not enforceable; it's probably illegal.
I'm not an attorney, but at least, my attorney indicates that
perhaps one solution to this problem would be to amend your
ordinance
to allow for an engineer or an architect -- and you alluded to
that,
Mr. Chairman, architects do have great expertise in this area -- to
be
able to sign and seal certain plans.
So I thank you for allowing an outsider to come in and express
few thoughts on this issue. Thank you very much.
CHAIRMAN HANCOCK: Mr. Wells, if I may ask you a question.
MR. WELLS: Certainly.
CHAIRMAN HANCOCK: Have you taken the opportunity to or had
the
opportunity to review Collier County's Land Development Code
relative
to minimum landscaping requirements and site design standards?
MR. WELLS: No, sir, I have not.
CHAIRMAN HANCOCK: Okay. The reason I ask is I think we are a
lot more detailed and a lot more extensive than probably any other
county in the State of Florida, and I think that's a part of the
mix
and
if
overall, and I was curious if you had had a chance to review that,
you have not. Not that I hold that against you. I was just curious
you had.
HR. WELLS: No. But I would probably commend you for that.
CHAIRMAN HANCOCK: I understand.
MR. WELLS: Because it requires the use of probably higher
quality plants, it requires the use of more plants, which is all
advantageous to our industry. I'm not being critical; I'm saying
that's good.
But by the same token, we need to have a practical approach
when
we look at what you're doing here with this ordinance.
And again, as a representative of the industry, these are our
comments.
CHAIRMAN HANCOCK: Commissioner Norris?
COHMISSIONER NORRIS: Let me ask you, talking about the
economics
of the industry here in Collier County, what was the status of the
nursery industry in Collier County? Did they have a good year in
19977
MR. WELLS: I'm going to use the Clinton dodge here. Our
association is not permitted to talk prices with our members. I
don't
know if they had a good year or not. Did you have a good year,
folks?
Up or down?
So-so? Okay. I don't talk price with my members. I'm not
permitted.
COHMISSIONER NORRIS: Well, you were trying to make the case
that
this ordinance was going to kill a 21 million dollar industry, and
it
appears that that has not happened, even though it has been in
place.
So that argument I feel may be a little bit weak, but that's just
my
opinion.
MR. WELLS: May I respond, Mr. Chairman?
CHAIRMAN HANCOCK: Yeah, I didn't hear "kill ....
MR. WELLS: I don't think that I indicated that your ordinance
was going to kill a 21 million dollar industry.
COHMISSIONER NORRIS: You implied.
MR. WELLS: I attempted to say that the industry is worth
that,
and I think I said that it's not going to be a severe blow, but it,
in
fact, is going to have some economic impact to those people.
No, it's not going to kill this industry. I wouldn't want you
to
is
go away believing that.
COHMISSIONER NORRIS: Okay. Thank you.
MR. WELLS: Thank you.
CHAIRMAN HANCOCK: Thank you, Mr. Wells.
MR. WELLS: Thank you very much.
MR. FERNANDEZ: Ray Pelletier and Sidney Showalter.
MR. PELLETIER: I'd like to hand that out.
CHAIRMAN HANCOCK: Thanks, Ray.
MR. PELLETIER: Hello, Commissioners. My name for the record
Ray Pelletier. I'm here today representing myself, my family and
business.
I believe the reason we are all here is due to a lack of
proper
review by your County Attorney, and I've given you the documents
that
indicate that there was supposedly a review and then it didn't get
reviewed.
It is important to note that everything you would see on my
SDP
plan that is not plant material-related would be done by an
engineer.
Engineers are charged by the citizens of the State of Florida with
safeguarding the life, health or property of the citizens of the
State
of Florida. Landscape architects are not. Their purpose is, and I
quote, "an enhancement of the quality of life in a safe and healthy
environment."
Now, that's an interesting play on words, but it's the
absolute
truth. You have the House of Florida Representatives report that
clearly states that we are not a health, safety and welfare issue.
The property owner will have the ultimate responsibility of
maintaining his property and, of course, he'll have to have the
appropriate insurances.
If you would please look at the exemptions, and this is what
this
matter is all about, the answer to Commissioner Hac'Kie's original
question, "Who are we eliminating," and that's exactly who they
are.
We are not just anybody off the street. We're the general
contractors; we're the building architects, engineers, property
owners, nurserymen and the people exempt under number 7 who do this
work not for compensation. A lot of churches in our communities get
done this way.
Last, but not least, number 8, land planners. And Mr.
Chairman,
if I could, you are a land planner and you are not a landscape
architect; correct?
CHAIRMAN HANCOCK: A certified land planner, yes.
MR. PELLETIER: And it would seem that if you are not a
landscape
architect and you are a land planner, there may be a conflict. And
my
request today would protect your profession from being precluded in
doing land planning without the county's recognition of the
exemption
COHMISSIONER HAC'KIE: What? Say that again. It would do
what?
It would prohibit him from practicing his --
MR. PELLETIER: If you would allow me to finish.
COHMISSIONER HAC'KIE: I honestly didn't hear you. It would
prohibit him from practicing his profession?
MR. PELLETIER: I did not say that, no.
COHMISSIONER HAC'KIE: I'm sorry. That's why --
MR. PELLETIER: I'll go slower and --
COHMISSIONER HAC'KIE: Thank you.
MR. PELLETIER: -- I know it's a technical thing; I had to
read
it three times myself.
COHMISSIONER HAC'KIE: Give me it one more time.
MR. PELLETIER: Sure. It would seem that if you are not a
landscape architect and you are a land planner, there may be a
conflict, and my request today would protect your profession from
being precluded in doing land planning.
Without the county's recognition of these exemptions, you
could
possibly leave your profession vulnerable to the landscape
architects.
Thus, sir, you may have a conflict.
Anyway, I'm not -- your integrity is beyond reproach as far as
I'm concerned. I just -- I didn't find out about that one until I
read it two or three times.
COHMISSIONER HAC'KIE: Still don't get it.
MR. PELLETIER: Okay.
CHAIRMAN HANCOCK: It's a slight misapplication, but I can
clear
that up. Go ahead, Ray.
MR. PELLETIER: Right. Well, I was ready to welcome you to
the
the
lowest possible common denominator club, but I guess I'll hold that
off for later.
The definition of landscape architect shall not be deemed to
include the preparation of plans by nurserymen. This would answer
question raised last meeting as to what exactly landscape
architecture
is and what it isn't. These people that wrote this law were pretty
smart. They not only told you what landscape architecture is; they
told you what it isn't. And you have that document in a letter
that I
sent to you.
Clearly, we're not trying to practice landscape architecture.
You have the Attorney General's opinion upholding the exemptions
and
you have my position concerning the devaluation of my plans for
commercial property owners, thus restricting my ability to
merchandize
my product.
The argument made by your attorney was, as long as the county
code does not conflict with state law, the two can co-exist. The
county code was in conflict with state law when staff refused to
allow
me to prepare a landscape plan for my own nursery on my own
property.
All I'm asking you to do is bring your code into full
compliance
with state law, allowing for fair and equitable trade practice with
regards to this issue. The questions I have raised are valid and
backed by state law.
And I would just ask the commissioners, you're asking if
staff's
recommendation is legal, why don't one of you ask if my
recommendation
is legal?
The County Attorney has not addressed my exemption as a
property
owner. With regards to that issue, I would like to quote from an
article from Hillsdale College.
"Social justice has spawned an aberration called group rights.
Group rights are the negation of individual rights. You cannot
have a
right as an individual, only as a member of a certain group. The
Constitution knows nothing about groups. Groups have no standing
in
of
the eyes of the law. Among our individual rights, the right to
acquire and hold property has a special place. This right protects
the weak against the strong and balances inborn gifts with fruits
sheer diligence and industry.
John Locke, Thomas Jefferson and James Madison held that
civilized society is predicated upon the sanctity of private
property
and that you guarantee it is government's primary function.
Without
absolute property, there is no incentive, no security, no liberty.
The freedom to enter into contracts, to keep what's yours, the
freedom
to dispose of yours, is what underlines all liberties."
COHMISSIONER CONSTANTINE: Ray, I think I'm with you on the
ordinance part, but you're losing me on this part here. MR. PELLETIER: Okay.
COHMISSIONER CONSTANTINE: When we get into Madison and
Jefferson.
CHAIRMAN HANCOCK: You mean the removal of individual
liberties?
COHMISSIONER CONSTANTINE: Yeah; yes.
MR. PELLETIER: Restraint of trade, restraining, restriction
of
liberties, and that's what's happening to me now.
CHAIRMAN HANCOCK: You have about 20 seconds, Mr. Pelletier.
it
was
MR. PELLETIER: Twenty seconds? I had a joke and considering
was the holiday season, I thought you might enjoy it after that.
CHAIRMAN HANCOCK: You can tell by my hat I'm a real Grinch.
hate Christmas.
(Laughter.)
MR. PELLETIER:
With your permission, sir.
An elderly farmer
sitting at his breakfast table when he heard a pounding at the
screen
door. He got up and was met at the door by a county official
brandishing the proper license and demanding to inspect his bull.
He invited the man in for coffee and offered to assist the man
after he had finished his breakfast, to which the man replied,
"This
is my license and it allows me, without notice, to inspect your
entire
herd upon demand. Now, you can assist me now or I'll do it
myself,"
to which the old farmer said, "Have it your way."
The old farmer returned to his breakfast and after a while, he
heard some noise coming from the corral, and it was, "Help me;
please
help me." At first, the farmer paid no attention. But again he
heard,
"Help me; oh God, please help me."
The farmer got up, opened the screen door, saw the bull
chasing
this county official around the corral with this come hither look
in
his eye. The farmer then replied to the man, "Show him your
license;
show him your license."
(Laughter.)
MR. PELLETIER: Thank you very much.
CHAIRMAN HANCOCK: If that was supposed to win us over, Ray,
your
timing was bad.
(Laughter.)
MR. FERNANDEZ: Sidney Showalter, and then Wayne Hook.
MR. SHOWALTER: After hearing all this conversation here, I'm
kind of confused about what's going on.
COMHISSIONER MAC'KIE: Thank you so much.
MR. SHOWALTER: I guess what I see is the ultimate objective
is
to have plans presented to the county that will pass the first
time,
ideally.
The second thing is who does these plans. By the time I get
done, I'll probably step on everybody's toes and have everybody
angry,
so '-
CHAIRMAN HANCOCK: At least, you'll be evenhanded --
MR. SHOWALTER: What did you say.
CHAIRMAN HANCOCK: At least, you'll be evenhanded by ticking
everyone off.
yO~l
tO
Of
HR. SHOWALTER: I think the way the code's written now, it's
basically painting by the numbers. And I remember back in third
grade, you know, you got number one, you put green here, and two,
put red there. I think I could probably teach an eighth grader how
multiply and divide and come out and do this thing.
I think the landscape architects, with their five years of
education, are obviously overqualified for this, and that is part
their job to do this; they do a good job at it. I think that there
are a lot of landscape contractors and nurserymen, that simply
because
they've got the license, don't have the right to do this.
There is a middle road, I think, and that is probably some
kind
of certification for people that present plans to the county. I
don't
know whether you're aware of the Association of Professional
Landscape
Designers, which is a national association, which you have to pass
is
test and you have to get certified to be a certified member.
There is also the Florida Landscape Design Association, which
the local or the state chapter of this. They are now working --
because there was a lot of people that are landscape designers that
are good, but they are out, you know. They are not contractors and
they're not nurserymen, but they do landscape design. They are
working to get this as a state registration. I think that's what
maybe people were talking about.
But I would say that, you know, to allow every landscape
contractor or nurseryman to submit plans would not be in the best
interests of the county, of the staff and for the people. I think
that if you could look at this Florida Landscape Designers
Association, and if that certification there, if they pass that,
they
obviously have the ability to present plans because these are
reviewed
by other landscape designers. And one of the members, or the
vice-president of the association, is Joy Doors who is a professor
up
at Florida A&H in landscape design.
I guess if we're going to fight a battle, I think there's a
middle ground, and I think some kind of certification is what we
need,
so we can get the plans through, because I know Nancy has a
difficult
time.
Do you have any questions for me?
COHMISSIONER CONSTANTINE: Just a comment. And I guess, if
we're
going to have some sort of certification or level of education
required, whether that be formal or otherwise, I don't know that
local
government needs to create yet another level to do that. I mean,
if
we're going to say you need to be certified or you need to have
attained some level of something to do it, then that already
exists.
And I think that's what the landscape architects are saying.
I don't happen to agree with it, but if the majority does and
we
are going to have some requirement, I don't want to create yet
another
mechanism and another test that people have to take. And that
seems
like more government adding more difficulty for people, rather than
do
I appreciate you trying to reach a middle ground, trying to find a
compromise. I just, I don't hear that as being an effective way to
it.
CHAIRMAN HANCOCK: What Sid mentioned kind of got to what I
told
Ray when I first met with him, which is, yet there are some sites
that
when the building pad is done, there is nothing left but a 10-foot
strip around it. Now, there is not much you can do with your
landscape architect or the landscape designer or the average Joe.
I
mean, you're going to put a hedge in it and you're going to put a
tree
every 30 feet, and there is no room to do anything else.
The problem was, there is no real certification or requirement
that says if you're going to address those situations, you at least
need to be proficient in these areas. So there is no minimum
standard.
I think what Sid's saying is, if the state wants to adopt
that,
we can then apply it here, but to date that hasn't happened.
The report that Ray refers to was never accepted by the
Legislature. It was performed but not accepted. So what's in that
report is not a directive or information from the state
Legislature.
It was prepared and not accepted. So they even avoided trying to
find
a middle ground.
So I understand what you're saying, Sid. It's just not out
there, as I understand it.
MR. SHOWALTER: Well, I think what we've done to increase the
requirements on the landscape requirements in the last -- last time
we
raised them, we are setting the standard, and this is an
opportunity
to set the standard.
COMMISSIONER MAC'KIE: Good point.
CHAIRMAN HANCOCK: Thanks, Sid.
MR. FERNANDEZ: Mr. Wayne Hook, and then Michael McGee.
MR. HOOK: For the record, my name is Wayne Hook. I'm a
landscape architect of only a year.
COMMISSIONER MAC'KIE: Got a snappy jacket there, Wayne.
like
that.
me.
MR. HOOK: Well, thank you very much; I appreciate that. I'd
rather be out using it on the golf course.
CHAIRMAN HANCOCK: You're just missing a good hat, if you ask
(Laughter.)
MR. HOOK: Two things; the last time I spoke I brought up my
concern about whether or not we were in jeopardy, or the language
change might be in jeopardy with state law, and you folks have
cleared
that up. Either going back or the present code, both would fit.
One thing I'd like to clear up was something that Ray
mentioned
about taking rights away. Landscape architects, by the state law
says
we can do, we can perform site plans. Collier County elected to
give
that only to engineers. So we are in the same boat.
Collier County has elected to do certain things; you're
setting
the rules. And you can elect to set certain standards. Certain
communities are setting their own standards, and it's your choice
as
to
out
to how you want the county to go. Thank you for your time.
CHAIRMAN HANCOCK: Thank you, Mr. Hook.
MR. FERNANDEZ: Michael McGee, and then George Botner.
MR. MCGEE: Good evening. My name's Michael McGee. I'm a
landscape architect. And I would just like to request of the board
really take no action on it, and leave the language as it is. I've
been practicing in the county since 1981 as a landscape designer
of college, and then as a landscape contractor and nursery
business,
and then became licensed after I passed the test. And I feel that
the
code you've got now is very good. It protects the public, and, in
my
point of view, the health safety and welfare of the county.
I think the code, in preparing an LDC permitting plan, is
really
a legal document. It is not the same thing as preparation of a
planting plan, which a nurseryman or a landscape contractor can do.
So I think there's two different things; there are legal issues
there,
in my opinion.
And I just request that you take no action on the language.
CHAIRMAN HANCOCK: Thank you, Mr. McGee.
MR. FERNANDEZ: George Botner, and then Joanne Smallwood.
MR. BOTNER: Thank you. For the record, George Botner. I
practice as a landscape architect here in Collier County. I've
been
licensed by exam and education and all that stuff for almost 25
years
now.
And perhaps to respond to something that Mr. Showalter said,
perhaps landscape architects are overqualified. I've been in this
business for that many number of years, and I can tell you I've
never
felt overqualified. In fact, every day I go to work I feel
somewhat
humbled by the task before me and what I have to practice, and the
standards that the state expects of me to uphold.
And I don't want to take much of your time. You might recall
October, '96, we all got together here, we had this same discussion
and the question starts to come to mind, you know, last year it was
an
architect or two that had a concern. This year, it's a nurseryman
landscape contractor. What's it going to be next year?
You know, not, certainly, to withhold the public's right to
stand
forward and revisit the codes that we all operate by. But by the
same
token, we can study this thing to death, and we all have. And it
is
being studied, as was mentioned earlier, at the state level again,
and
it
we will participate in that discussion, as well as here locally.
Now, here locally, you all know what this community expects of
with regard to environmental quality. I've had the opportunity,
privilege, to sit on a couple of different groups, Collier
Naplescape
for one, and of course, the FoCuS activities, as has Commissioner
Hancock. And the tenor that you see very clearly, unmistakably
throughout this whole community is an insistence on a very high
level
of environmental quality.
And that was the main issue that we discussed here a year ago
and
to
our
that you all have apparently, by your early deliberations, seen fit
keep up with in terms of our going forward, rather than reversing
track. And we think that you should go ahead and continue the
course
that you've already struck a year ago.
There have been no negative repercussions as a result of
upholding a higher standard and certainly, the community, to my
mind
in what I've seen, is in total support of what you're doing.
with
that, thank you.
CHAIRMAN HANCOCK: Thank you, Mr. Botner.
MR. FERNANDEZ: Joanne Smallwood, and then Robert Davenport.
MS. SHALLWOOD: Thank you. For the record, Joanne Smallwood,
president of Smallwood Design Group and Smallwood Landscape.
We've been practicing in Collier County for the past 25 years
and
and
there are two things that I realized as we left the last meeting,
again in this meeting, that I felt that could clear up some of the
confusion. And I feel like there is confusion here.
It's really important to understand, the reason -- our firm is
three entities: Landscape architects, landscape contractors and
horticultural managers providing maintenance services -- is that
all
those parts are connected and each one is equally important, and
what
we're lacking here is respect. I really feel strongly that there
is a
lack of partnering and respect within our own profession between
all
these entities; because for 25 years, our firm has been all three
entities.
Our landscape architects do different functions than our
landscape contractors; our landscape contractors do different
functions than horticultural managers. They all have three
different
degrees. And then we were nurserymen for 10 years, and that
required
a different degree. Each one is technically very, very different
and
yet they are all equally important and the real key that we talked
about last time and missed on, I felt, were two things: one, about
putting someone out of business or not providing them business
opportunities; and two, was that they could do just the planting
plan.
The missing piece here is that site drainage, site analysis,
site
preservation, all those things are interconnected. They are an
integral part of what a landscape architect does. If we do 10
sheets
of drawings and one of those 10 sheets is planting design, those
other
nine sheets are all related to that tenth sheet. They all
interconnect; they are not independent of each other. You don't
just
come in and apply the planting on top of the other nine entities.
They all connect. And I think that we missed that in the last
meeting.
And I think that the second part is that, the part about
putting
someone out of business. Nineteen years ago, I quickly realized
that
Collier County was changing. It was no longer just a residential
community. It became a growing community with a commercial
component;
and that component required along with the change, along with
computerization and everything else that has changed in our world,
it
required the change of professional licensure to provide that
greater
knowledge of the other entities.
And yes, maybe 8 percent of what we do only relates to this
issue, because we said the other percent relates to the signing and
sealing of plans. So we're talking about a small percent, but that
small percent is a big visual component in Collier County.
And so what Ray and the other firms that don't have landscape
architects on staff, have the ability to do, just as our
organization
to
did 19 years ago, and that is to partner up, to hire a landscape
architect, just as a number of people in this room have done, and
be able to provide those functions. Again, each one, respect its
entity and its technical components and functions and provide both
functions, not just one or the other.
So I wanted to bring that out and to let you know that our
vote
is to leave that language as it exists in the LDC code.
And I thank you.
CHAIRMAN HANCOCK: Thank you, Mrs. Smallwood.
MR. FERNANDEZ: Robert Davenport and then Greg Davenport.
ROBERT DAVENPORT: Good afternoon. For the record, my name is
Robert Davenport, and I've been in Collier County for 37 years.
I've
worked for 27 of those years in the horticulture industry. Of
those
27 years, I've owned a landscape contractor's license, I have had a
retail sales license, I have a wholesale license, I had an
irrigation
license, I had a sign business license. I've had all of the
licenses.
And the exemption under 487, I've worked under it from time to
time. My last project under there was for a church that I attend.
The
to.
you
church was designed and installed with no fees to the church.
But my biggest problem is without this exemption, if the
wholesale nursery end of my business falters, I cannot market my
product through designs of commercial projects.
I think the bottom line is the landscape code should be your
benchmark and not select a few individuals to give all of the work
COHHISSIONER HAC'KIE: Sir, I need to ask staff or you or
somebody, but I don't think that what the code says would prohibit
from doing a marketing plan, submitting it to a commercial
developer
who falls in love with it and wants your plan. But before it's
submitted for permit, it requires this technical certification by
the
get
landscape architect.
You can still market yours, but you have to
that seal.
ROBERT DAVENPORT: But once you go to a landscape architect
and I
supply about every architect in this business in this room tonight,
I'm not against the architects, and I think you're trying to put us
together as fighting. No, we're not.
My idea is that I should have my rights under the Florida
Statute
to be able to submit plans. Once it goes to an architect, most of
the
time the thing is bid out. I promise you, when most architects,
except for a few that has all three phases, it goes to an
architect,
it's bid out. And you lose your ability to -- my recommendation to
you
is to change the code back and let the individuals work on it
through
a committee.
This problem is way bigger than I anticipated two weeks ago.
I
But
12
to
thought it was a nickel and dime issue when I got involved in it.
it's a way bigger issue and it's taken a lot of people's livelihood
that don't use it every day away from them, a chance for it.
My sons will have a big problem if the wholesale industry, my
part of the wholesale, goes down.
COMMISSIONER MAC'KIE: Has it been a big problem in the past
months?
ROBERT DAVENPORT: Ha'am, I don't even have to work in the
nursery industry to make a living.
COMMISSIONER HAC'KIE: Well, I thought that was a good thing
do, work in the nursery industry.
MR. FERNANDEZ: Greg Davenport, and then Paul Polomsky.
GREG DAVENPORT: Hi. Hy name is Greg Davenport. I'm with
Davenport's Nursery, also. I find it hard to understand the
county's
position against this matter, when Mr. Mulhere states in a Planning
Commission meeting, quote, "So the question is again, can we
legally
take a more stringent position, and apparently we can."
And then Ms. Student replies, "Well, I'm saying, you know, if
we
are challenged on it, I cannot tell you that we would prevail."
So my question is, why take away my rights when the county
staff
is not even 100 percent sure what it's recommending to the
commissioners will even stand if challenged?
CHAIRMAN HANCOCK: Hr. Davenport, take away your right to do
what?
GREG DAVENPORT: Take away my right --
COMMISSIONER MAC'KIE: To do what?
CHAIRMAN HANCOCK: Take away your right to do what? What are
we
taking away?
GREG DAVENPORT: Hy right to merchandise my product.
COMMISSIONER MAC'KIE: No.
CHAIRMAN HANCOCK: There is a difference, and this is
something
that we seem to keep getting caught on. There's a difference
between
putting a plan or design together to merchandise a product and
preparing, in essence, construction drawings, which is really what
the
the
submittal requirements for landscape designs, landscape plans are,
when our staff people have to review them.
It's not a landscape design or landscape plan. In essence,
detail is far, far greater than that.
GREG DAVENPORT: I feel that if I am qualified and have enough
sense to read your code, and to supply a plan that meets that code,
feel, under the exemption given to me by the State of Florida, I
should be able to submit that plan to Collier County.
COMHISSIONER NORRIS: Not like that.
CHAIRMAN HANCOCK: That exemption does not apply to a
submittal
to government entities for the purpose of reviewing in parallel
with
construction documents.
That exemption applies to merchandising your product.
COMMISSIONER NORRIS: Let me read the exemption.
CHAIRMAN HANCOCK: And the last time I checked, our staff is
not
not
buying your product based on that plan.
COMMISSIONER NORRIS: Let me read the exemption.
"It shall
prohibit any nurseryman, stock dealer, so forth, who does hold a
valid
license to engage in the business of selling nursery stock in this
area insofar as he engages in the preparation .... preparation now -
"of plans or drawings as an adjunct to merchandising his product."
long as you don't use the term, "landscape architect."
That's exactly what it says.
COMMISSIONER HAC'KIE: And you can still do that. You just
can't
submit.
COMMISSIONER NORRIS: You can't submit.
COMMISSIONER HAC'KIE: -- SDP plans to a government agency.
That's not merchandising. They are not buying.
CHAIRMAN HANCOCK: The problem is, Mr. Davenport, you've been
allowed to do it to date, or until October of 1996, and I think --
GREG DAVENPORT: Well, I see, you know, Collier County has not
become a more beautiful city in the last year, in my opinion.
Collier
County is never going to become --
CHAIRMAN HANCOCK: Is that because you weren't submitting
plans
or --
GREG DAVENPORT: I'm just saying, you know, Naples was a
decent
area to live and was very beautiful before October of 1996, and I
don't see why we can't continue to submit these plans.
CHAIRMAN HANCOCK: Thank you, Mr. Davenport.
COMMISSIONER NORRIS: I have no objection if he ever prepares
the
plans, that doesn't matter to me, as long as they are sealed when
they
are submitted.
MR. FERNANDEZ: Paul Polomsky and Glen Dunavan.
MR. POLOHSKY: Good evening. My name is Paul Polomsky; I'm a
resident of Collier County. I'm also the president of Tree Source
Palm Tech Nursery, which is a wholesale nursery on Immokalee Road,
and
I'm also -- I live in North Naples. So I'm a resident of Collier
County.
I'd like to voice my opinion just basically to say that I'd
like
for you to consider changing back the landscape code to once again
being in accord with the Florida State Statute, 481, which gives us
the exemption as nurserymen to submit plans.
It may only take $25 to get a license to be a nurseryman, but
we
work our butts off. And if you don't do what you're supposed to do
the nursery business, you're not going to make it, and we know
plants.
Now, I'm not a landscape architect and I'm not going to claim
to
be one, but you did ask what kind of year we had in the last year.
Well, on January 18th this past, 1997, I lost 20 percent of my
nursery.
COHMISSIONER NORRIS: Was that due to the fact that you're not
landscape architect or are not allowed to submit plans?
MR. POLOHSKY: No. It only has to do with the fact that I
lost
that much and if necessary, down the line, I may have to look -- I
was
going to look at submitting plans and doing for commercial
purposes.
Now, I can't do that now, and I haven't done it in the past
year,
so I'll admit that. But I am no longer able to do that, as well,
because it changed in October of '96. You asked why I haven't done
it
in the last year, well, I haven't had to, but now I can't do it,
even
if I wanted to.
So that is my position. I'd like for you to change it back.
CHAIRMAN HANCOCK: Thank you.
MR. FERNANDEZ: Glen Dunavan, then Michael Ford.
MR. DUNAVAN: My name is Glen Dunavan. I'm president of the
Citizens for Constitutional Property Rights of Collier County.
I wish to address the commissioners in favor of allowing
property
owners and nursery stock dealers to submit landscape designs
without
the expensive cost of a licensed landscape architect, as long as
they
do not claim to be one.
It's kind of like you work on your Model T Ford for 20 years
and
at
you know where to get the parts and how to install them. But all
once, you're required to get a certified mechanic to do it. This
certified mechanic would have quite a time adjusting the coils on a
Model T Ford. I'm probably one of the few people in the audience
that
could adjust the coil and the bands to pull the thing.
But a certified mechanic, unless he's done this, would have
quite
a time doing it.
COHMISSIONER NORRIS: You bought one new, didn't you, Glen?
(Laughter.)
MR. DUNAVAN: No. It was quite used, but I run it for a
while.
CHAIRMAN HANCOCK: He's not as old as you are, John.
MR. DUNAVAN: As a matter of fact, I finally got aggravated
with
trying to keep adjusting these coils, and a guy come by and I sold
it
to him; got rid of it.
But these people have been doing and there is 12, 15, as I
understand, doing this business for 15 years or more with no
problem.
But now they can't do it.
Presumably, the education and licensing requirement were to
save
staff time. However, this has not been the case. Landscape
architects' plans have had to be resubmitted time and time again.
The
Why
county has codes that must be abided by. The nursery people are
capable of reading these codes and have been doing so for years.
take away from one business to give to another business?
This is a giant step in over-restrictive regulations and
robbing
people and businesses of their own right to commercial landscape
planning.
The Florida House of Representatives I read, although nursery
stock dealers as defined in Chapter 581 Florida Statutes, can sell
design plans, they are exempt from the landscape architect
licensure
requirements.
The county staff includes registered landscape architecture,
architects, Joe Delate and Nancy Siemion. I don't know how to say
those words, but their name.
CHAIRMAN HANCOCK: We only hire people whose names you can't
pronounce. That's kind of a rule.
MR. DUNAVAN: Okay. We have monitored the county commission
meeting for two years. We have heard time and time again the
County
Commissioners would take the county staff recommendations.
On November 25, 1997, the Planning Commission voted in favor
four
to three recommending the current language to read prior to the
change
made last year. But you've chosen to go against the staff, as I
understand.
We recommend that you go by staff recommendation and go by the
report language prior to the year ago, allowing these nurserymen
and
it
business owners to submit landscape plans to the county staff, as
presents no danger to the public. If they don't present a plan
suitable to you, you can turn them down. Thank you very much.
CHAIRMAN HANCOCK: One point, Glen, that I think makes your
analogy of a Model T bad, if you want to fix the coils on your
Model T
and drive it, that's your business. But if you want to fix the
coils
on someone else's Model T, I think we need to make sure you know
how
to do it properly before we let them get in that car.
And I think that's what we're dealing with. You know, on the
thing about it being their property, that's kind of a gray area,
and I
think there is some room for discussion there. But as far as doing
someone else's property that the community has to live with, I
think
there's a difference between the two.
COHMISSIONER HAC'KIE: And the problem with their own property
is
that the general public, you know, it's a commercial establishment;
the public is coming in and out. And their own property doesn't
have
a big wall around it that nobody in the whole county can see, we
all
have to look at it, so --
COHMISSIONER CONSTANTINE: Does anybody have a statistic on
how
is
and
many Hodel Ts will be affected by the ordinance?
(Laughter.)
CHAIRMAN HANCOCK: Glen sold his.
MR. DUNAVAN: Right, I got aggravated with it.
Ray Pelletier
planning on doing a building, and he's quite capable of doing it
it is his own property, but it is a commercial property.
Maybe this Model T might have been a commercial vehicle, I
don't
know. There's not too many of them in commercial use. COHMISSIONER CONSTANTINE: Truly Nolen, apparently.
MR. DUNAVAN: There are not too many of them right now in
commercial use, but there are nurseries that are commercial. Ray
Pelletier plans on building a nursery, but he can't submit his own
plans. So there goes your Model T deal there.
CHAIRMAN HANCOCK: Thank you, Glen.
MR. DUNAVAN: Thank you.
MR. FERNANDEZ: Michael Ford, and then David Nam.
CHAIRMAN HANCOCK: Mr. County Administrator, how many more
speakers do we have?
MR. FERNANDEZ: Two more, after Michael Ford?
CHAIRMAN HANCOCK: Thank you.
MR. FORD: I'm Michael Ford. I've been a landscape contractor
in
Naples for 15 years. We need to get back to what we originally
were
talking about here with Ray Pelletier. We've gone in a lot of
different areas and passed over a lot of different things. And I'm
also on the Board of Directors for the Florida Landscape Designers
Association. They are based out of Tallahassee, but they are
opening
up offices all over the state.
I
to
We were pursuing this regulation for landscape designers and,
contrary to your statement, that there is a need for it. There are
lot of landscape designers here in Florida that don't have any
recognition at all. We don't want to practice what landscape
architects do; we want to practice conceptual landscape design for
hire.
But that's another fish in the pond; that's a long ways away.
really didn't want to bring that up, but since they did, I wanted
clear that up. I have some pamphlets for you that's going to state
everything that we're trying to do.
But back to Ray Pelletier, I do believe, and FLDA does, also,
that this is a personal property rights issue as far as he is
concerned. I think the state statute is clear on that. It is a
gray
area, but I think as far as Ray being able to design conceptual
landscape drawings for his property, that he should be able to do,
it
according to the state law.
I know that a lot of landscape architects that do the
engineering
part or they have to submit the commercial plans they probably
submit
it to the engineers themselves. I know some of them that do. I'm
not
saying that all of them do. So and that's what Ray did, he
submitted
it to an engineer and it cost him what, $12,000 or something.
MR. PELLETIER: Five thousand.
MR. FORD: Five thousand. Excuse me. All he's talking about
is
being able to submit a commercial landscape design for his
property.
Everything else s taken care of by the appropriate people. And
what
he would like to do is just be able to submit that on his own,
promote
what he can do.
I don't believe it's a health and safety issue. That's been
bandied back and forth. But again, if it is his property, he will
have the required insurances. If you're talking about ingress-
egress
problems, that's taken care of by codes. If you have a problem
with
codes, go ahead and increase the resubmittal fees, like we talked
about, or Commissioner Berry talked about.
But let's not raise the bar in exclusion of somebody who might
be
capable of doing it. Thank you.
COMMISSIONER NORRIS: Excuse me.
MR. FORD: Yes, sir.
COMMISSIONER NORRIS: You said that Mr. Pelletier's issue is
limited solely to his own property? That's not the way I
understood
it.
MR. FORD: No. To his piece of commercial property, he wants
to
submit a commercial landscape design.
COHMISSIONER NORRIS: That's all? He doesn't want anything
else
just that, just to be able to submit plans on his own property?
MR. FORD: No. That's not all it is, no. But that's what
he's
trying to do; he's trying to submit this plan. All the other plans
will be included with it. I don't know exactly what he'll have
with
it, but I'm sure he could tell you more, if you need that.
CHAIRMAN HANCOCK: Thank you.
MR. FORD: Thank you.
MR. FERNANDEZ: David Nam and Bruce Tyson.
MR. NAM: Mr. Chairman, members of the Commission, my name is
David Nam, and I'm the general counsel to the Florida Chapter of
the
my
American Society of Landscape Architects, and I'll be very brief in
comments here this evening.
I represented the Florida chapter in Tallahassee and I know
these
issues pretty well. I agree completely with your staff's legal
opinion as to the 481 exemptions. These exemptions do not serve as
any prohibition as to the establishment of a standard for the
submittal of landscape plans in this community. And if this
community
chooses to establish a standard, it is free to do so.
I am free to answer any questions, and I'm here for
informational
purposes.
CHAIRMAN HANCOCK: Mr. Nam, again, because you deal with it
regularly, in your legal opinion, the way that the code addresses
or
fails to address specifically individual property ownership, does
that
create any inconsistency between our code and the state statute?
MR. NAM: I do not believe that the exemption that is
established
for property owners can reasonably be extended to commercial
situations.
Your code does provide for limited residential properties,
which
I feel is certainly a reasonable interpretation of that exemption,
and
one that does not implicate the public health, safety, welfare
concerns to the extent that a more broad-reaching interpretation of
that provision would.
CHAIRMAN HANCOCK: Okay. Thank you.
MR. NAM: Thank you.
CHAIRMAN HANCOCK: Questions of Mr. Nam? Thank you, Mr. Nam.
MR. FERNANDEZ: The final speaker this evening is Bruce Tyson.
COHMISSIONER NORRIS: Clean-up.
MR. TYSON: Good evening. My name is Bruce Tyson. I'm a
registered landscape architect in the State of Florida. I just
wanted
to -- first of all, let me see if I can't clear up a couple of
comments that were made, just to make sure that everybody is
consistent.
The point about number of permits and people's businesses
being
wrecked, I think we pointed out last time that we were here that
there
were 2,400 permits that are pulled in the county for housing this
year
and 170 of those, approximately, for all types of permits for
landscape, approximately 170 of those, or about 7 percent, are
those
that fit into the category of site plan or subdivision plan that
need
to come in front of the county. That's just the plan; that's not
the
implementation of that plan. So my guess is that maybe we account
for, in this process, one to two percent of all that activity that
takes place in the county.
In terms of some information that was passed out to you, and I
think you've received it, but I just wanted to put it on the record
this is information that was given to you last time and there are
Some
points here about letters or comments to the effect that there was
standing by the nurserymen and a number of challenges being made to
the Florida House.
I have a letter from Mark Ogles, the chairman of the Business
Regulation and Consumer Affairs Division, that I'd like to give you
and right along with that is a letter from David Nam to Marjorie
Student that somewhat outlines what the process is for a nurseryman
to
gain stature in the state.
COHHISSIONER HAC'KIE: Actually, we all have copies of that.
Maybe you want to give one to the court reporter, but we have them.
MR. TYSON: Finally, I think it's just as a general overall
wrapup, as we look at all of this, we have had significant approval
from the standpoint we've had a 50 percent increase in first time
approvals for plans that have gone through the system in this last
year.
Certainly, that indicates that landscape architects do have a
positive impact on, if nothing else, the speed at which plans go
through the system. I think there are other many benefits to that,
but nonetheless, that's a big plus.
In terms of some other comments, let me just make one closing
comment, and I think it's been raised before. I think the
landscape
architects have a primary mission here, and that's simply to
provide
their clients with an objective, comprehensive plan. And in that
process the independent landscape architect has no monetary
interest
or anything else to be gained through the construction process.
Conversely, a contractor's motivation is to sell materials,
and
in that process their suggestions are not necessarily --I'm not
saying
the
the
always -- but certainly not necessarily, in the best interest of
client or of the community, and this could easily be considered a
conflict.
And specifically as it applies to this case, the nurseryman's
right to merchandise his products has no connection with meeting
county's minimum code.
Thank you.
CHAIRMAN HANCOCK: Thank you, Mr. Tyson. That concludes our
speakers.
MR. FERNANDEZ: Mr. Chairman, I received another request to
speak. Judy Leinweber.
CHAIRMAN HANCOCK: Mrs. Leinweber, I asked for everyone to
fill
out forms and submit them so we could call them in an orderly
fashion.
MS. LEINWEBER: I didn't know I was going to get up and speak.
CHAIRMAN HANCOCK: Okay. What I'm not going to accept is
rebuttal comment to what somebody said. If you have a point to
make,
then please make that point. But we're not going to have rebuttal
to
what somebody said.
HS. LEINWEBER: I understand that --
CHAIRMAN HANCOCK: Okay.
MS. LEINWEBER: -- and I'm not going to be doing the rebuttal.
CHAIRMAN HANCOCK: Thank you.
MS. LEINWEBER: This is my first time up here. I am Judy
Leinweber. And Bay West Nursery sells to every one of these people;
don't think there's a bad person here in the bunch.
them
to
you
Every one of
are very good in their field.
I think Collier County has very high standards when it comes
the plant industry. Joanne Smallwood has gathered some especially
talented people that work for her as landscape architects.
I think we all realize just because you went to college and
got that degree as being a lawyer, are you the best lawyer in your
profession?
COHMISSIONER HAC'KIE: I personally am, yes.
(Laughter.)
MS. LEINWEBER: Of course. But that's the way everyone feels.
But it's gathering those talented people that know what they do and
how they're doing it that makes a difference. In my opinion
landscape
architect, just because you have that title, does not give you the
seal of approval.
There are bad landscape architects and there are extremely
good
ones, and I think Collier County is very lucky to have the good
ones
we do have in this county. But they've all gone to the same
college
for basics in the plant industry.
And as far as the American standards are -- I know the
European
standards are a lot higher; that's where my husband got his degree
and
he can do landscape architecture, but he chose the nursery
business.
But they all learn the basics in plants. What you're doing is
really cutting hairs here. And it is going to cost people in the
long
run on who they choose in the commercial business of -- it's going
to
cost them price-wise to get that seal of approval of landscape
architect when nurserymen, people who are raised in this field for
25,
30 years, have just as much knowledge, if not more, than someone
coming out of college as a landscape architect. Because they all
have
to learn the basics. You're cutting hairs. We're all members of
the
same group, the FNGAA. All of them are members. And even Joanne
Smallwood said you're cutting hairs. It takes a group of people to
do
has
and
the job, not just a seal of approval of a landscape architect.
I'm not against any of them, but I think the nurseryman that
been in the business for 30 years ought to have the same chance
because he's got the same expertise, he's got the same experience,
he knows what the codes are. Especially when people come from
other
countries, like my husband who -- and he's got the degree, he's got
the experience -- and with what he does, he's got the licenses,
he's
got the permits.
And the same way with Alex Hermosa from American Farms. He's
from South America, but he's got the experience. And he is the
best,
as far as I'm concerned, when it comes to outside plants in this
area
because he's got the experience, he knows what he's doing. And the
people that are fly by nights and that aren't going to be doing the
public the right service, they are not going to be in business too
long in Collier County.
CHAIRMAN HANCOCK: You know Judy, I've heard that about four
times tonight. In the meantime, before they go out of business,
they
screw up everything they touch. And the concern is that you're
right,
this isn't about people, it's not about Ray Pelletier, it's not
about
your husband. It's about a minimum level of qualifications required
to
submit technical plans.
It's not about what college you went to. Wayne Hook didn't
get a
landscape architect degree. He earned his experience in the field
and
studied and got his degree or his certification, as did many
others.
It's not excluding anyone from going and doing that. But it's
saying -- it's requesting a minimum specification achieved by a
method
of testing, which is the ASLA, before you can submit technical
drawings. That's all it's saying. It's not saying this person's
good
or this person's not good. That's not our business.
MRS. LEINWEBER: But they have to get the seal of approval
from a
landscape architect which could cost someone $5,000.
CHAIRMAN HANCOCK: Try $500 for a minimum landscape design for
the
the
us.
on
half acre outparcel. I mean --
MS. LEINWEBER: Well, I'm talking commercial.
CHAIRMAN HANCOCK: I am, too.
MRS. LEINWEBER: And I think, in my opinion, you're cutting
hairs. And all these people are experts in their field and they are
just as good as each other. They've all got the basics.
COMMISSIONER NORRIS: Mrs. Leinweber, I think you've expressed
your opinion very well.
MRS. LEINWEBER: Okay.
CHAIRMAN HANCOCK: That concludes our public speakers. Do we
have any additional registered speakers on any other items before
amendments before us?
So just from the discussion that we had before, listening to
public comment on this, I think we really have two issues before
The balance of the amendments being requested, I don't hear any
concern or divisiveness on those. However, there may very well be
the issue of LDC Section 2.4.3.1 dealing with landscape
architecture.
Because it requires four affirmative votes, if we do not have
four votes successful on a motion, the language will remain as
currently it is in the Land Development Code.
COMMISSIONER NORRIS: And that will mean that the nurserymen
cannot even prepare plans.
CHAIRMAN HANCOCK: Correct. It will just simply read the
landscape plans shall be prepared by and bear the seal of a
landscape
architect, as opposed to what is being proposed, which is the
landscape plan shall bear the seal of a landscape architect.
We're not exempting the landscape architect from the legal
obligations under the Florida Statute, but the staff requested us
to
strike "be prepared by and".
COMMISSIONER NORRIS: Well, let's do it this way, Mr.
Chairman.
I'll make a motion that we adopt section 2.4.3.1 as proposed by the
staff.
COMMISSIONER MAC'KIE: Second.
CHAIRMAN HANCOCK: Motion and second --
COMMISSIONER CONSTANTINE: Allowing preparation, requiring
seal?
COMMISSIONER NORRIS: Right; correct.
CHAIRMAN HANCOCK: Any discussion on the motion? Seeing none,
I'll call the question. All those in favor signify by saying aye.
COMMISSIONER MAC'KIE: Aye.
COMMISSIONER NORRIS: Aye.
CHAIRMAN HANCOCK: Aye.
COMMISSIONER BERRY: Aye.
CHAIRMAN HANCOCK: Oppose?
COMMISSIONER CONSTANTINE: Aye.
COMMISSIONER NORRIS: Mr. Chairman, I'll make a motion that we
adopt the balance of the Land Development Code as presented.
COMMISSIONER MAC'KIE: Second.
CHAIRMAN HANCOCK: Motion and second. Any discussion on the
motion?
Seeing none, all those in favor signify by saying aye.
Opposed?
(No response)
CHAIRMAN HANCOCK: Motion carries, five-zero.
Mr. Weigel, is there any additional action necessary to
complete
by
if
the Land Development Code Element of our agenda? MR. WEIGEL: No, there is not.
CHAIRMAN HANCOCK: There is not. So as a result, ladies and
gentlemen, all amendments are adopted as presented and recommended
our staff, which includes the Landscape Development Code Section,
staff recommendation was accepted. We have one item left on the
agenda. I assume you folks don't want to stay here for sport. But
you would do us a favor and as you exit, do so quietly so we can
focus
on the item at hand.
Item #4A
DONATION BY MR. CLUMSKY OF LAND ON BAYSHORE DRIVE FOR A POTENTIAL
PARK
- ACCEPTED WITH STIPULATIONS
not
is
that
Commissioner Hac'Kie?
COMMISSIONER HAC'KIE: The very straightforward question is we
have the offer of the property, 2.44 acres on Bayshore Drive. I'm
going to remind you of all the facts that you have already.
COMMISSIONER CONSTANTINE: Can I just ask a question.
COMMISSIONER MAC'KIE: Yes, sir.
COMMISSIONER CONSTANTINE: I don't care if there is, but what
the urgency if --
COMMISSIONER HAC'KIE: Taxes. Plain old taxes.
CHAIRMAN HANCOCK: For the property owner.
COMMISSIONER CONSTANTINE: I'm just thinking --
COMMISSIONER HAC'KIE: It's take it or leave it.
COMMISSIONER CONSTANTINE: I don't know, I'm just thinking
and
tax
I'd be much more comfortable -- I agree with all your points here,
maybe you can explain how we're going to do it, and I won't ask any
more questions.
COHMISSIONER HAC'KIE: My proposal is this. Because of the
repercussions to him, if the gift is not made by the end of the
year
he won't be able to offer the gift.
COHMISSIONER CONSTANTINE: Soon the giving season will be
over.
COHMISSIONER HAC'KIE: The giving season will have closed.
But
the good news here is, what I'm suggesting is, based on this list
of
five items, the first one has been answered, because I gave you a
copy
of the tax bill. The value of the property we would be taking off
the
tax rolls would result in about $2,000 a year being lost, so not a
terrible loss --
COHMISSIONER NORRIS: That includes a sewer assessment of
738.20.
COHMISSIONER HAC'KIE: You're right. And so after that's
paid,
it's significantly less than that. Where is it?
COHMISSIONER NORRIS: I'm sorry. Right there.
COHMISSIONER HAC'KIE: There you go, 369 twice; that's right.
So
we're talking about $700 total a year of lost tax revenue. So I
would
hope that that's not a significant number.
Then what I'm asking is that we agree to accept this gift of
property subject to four investigations, if staff can complete them
successfully before the end of the year. One is to get the title
reviewed, be sure you have marketable title.
The other is to have the Pollution Control Department do what
they always do, which is walk the property to do a phase
environmental
audit.
Third, have Natural Resources check to see, you know, what
kind
of protected species, if there is some negative to ownership as it
relates to natural resources.
COHMISSIONER NORRIS: I saw some peccaries down there.
COHMISSIONER HAC'KIE: I'm afraid there's a couple of those.
And then the other one, I can tell you I've had a conversation
with Tom Olliff about whether or not this is appropriate property
to
become a park. As you're all familiar, this is not a big enough
piece
of property for the kinds of parks the county builds.
COHMISSIONER CONSTANTINE: How big is this piece of property?
COHMISSIONER HAC'KIE: 2.6 acres -- I'm sorry, 2.44 acres.
COHMISSIONER BERRY: What about a passive type park?
COHMISSIONER HAC'KIE: But it is the kind of park that a
neighborhood in particular this HSTU, would be interested in
it.
any
developing. As with Bluebill, for example, the property in north
Naples that the county has owned for some time without utilizing
My request is that we consider accepting ownership of this piece of
property if our staff finds that there is no negatives.
COHMISSIONER BERRY: It's not, it's not on water, is it, Pam?
COHMISSIONER HAC'KIE: It's actually, you know what, it's on
Kelly Lake.
CHAIRMAN HANCOCK: It is that piece on Kelly Lake.
COHMISSIONER BERRY: It is on Kelly Lake, then.
CHAIRMAN HANCOCK: I have two concerns that would need to be
addressed before I could agree to that.
First is that there be a clause in the purchase contract that
contamination on-site that is discovered within a reasonable period
would cause the property to revert to Mr. Chlumsky, because I don't
want the county accepting subsurface contamination if it has
occurred.
COHMISSIONER HAC'KIE: And that is what I'm intending by the
environmental check, number four.
COHMISSIONER NORRIS: Take title with a reverter.
COHMISSIONER HAC'KIE: Title with a reverter.
CHAIRMAN HANCOCK: Okay. The second thing is that any future
maintenance, including mowing, be borne by the HSTU of the Bayshore
area. So we are not accepting a maintenance responsibility.
Because
the only reason I would accept this is because of the recent action
on
the
us
the Bayshore Area HSTU, and that HSTU should take ownership of and
responsibility for the maintenance and planting and development of
site. It's not the county park's --
COHHISSIONER CONSTANTINE: Maybe we could go to some of the
commercial property owners, like Larry Ingram and just take up a
collection to pay for maintenance.
(Laughter.)
COHMISSIONER HAC'KIE: He's not in this district.
CHAIRMAN HANCOCK: Is it true that there's going to be a Larry
Ingram park?
COHMISSIONER HAC'KIE: Memorial.
CHAIRMAN HANCOCK: All right. With those conditions you've
stated, I think we are looking for the people in that area to give
an amount, something that we have assurances the balance of the
county
will not have to bear additional costs to, with the exception of a
whopping $2,000 coming off the tax roll, which I think we can
handle.
COHMISSIONER NORRIS: It's too bad we don't have Councilman
Tarrant here to accuse Mr. Chlumsky of --
CHAIRMAN HANCOCK: Will Mr. Chlumsky be leaving town, now that
he's donated property.
COHMISSIONER HAC'KIE: No.
CHAIRMAN HANCOCK: So there is no John Pulling Association,
then.
COHMISSIONER HAC'KIE: No. So, do you have what you need, Mr.
Weigel?
by
MR. WEIGEL: Almost, and I've taken notes here on everything.
The title review, we understand about the parts on that list.
Number 4 and number 5, environmental check, the natural resource
check, will be done rather quickly.
The idea, of course, for Mr. Chlumsky, is that title exchange
a deed of conveyance prior to December 31st, and hopefully be
recorded
prior to the new year. And for his purposes, we do note, and I
think
in part of the handouts you got here at the meeting, was that a
very
quick check that we did this afternoon shows that these parcels do
remain, of course, in the East and South Water Management District
excuse me -- MSTU, that had the capital project with an assessment
against it.
It does have an annual assessment, but outstanding on each
parcel
are assessments for $4,956. And I'd appreciate some direction from
the board in regard to how that would be taken care of. It runs
with
the land. It's an ongoing obligation of someone; it cannot just be
waved away for these taxes.
COMHISSIONER CONSTANTINE: How much is that total?
COMHISSIONER MAC'KIE: Total 10 grand.
MR. WEIGEL: About 10,000.
COMHISSIONER CONSTANTINE: How much is the property estimated
to
be worth?
MR. WEIGEL: It's 25,000 apiece.
COHMISSIONER HAC'KIE: It's 50 for tax purposes; 25 each.
CHAIRMAN HANCOCK: Would it be possible if the annual
assessment
would be paid by the HSTU.
COHMISSIONER HAC'KIE: I think going forward that's possible.
MR. WEIGEL: Yes. On clearly acquisition costs, as
distinguishable from the appropriate HSTU costs of maintenance and
beautification.
COHMISSIONER CONSTANTINE: Is it possible that this property
would be owned by that HSTU?
MR. WEIGEL: No. The HSTU does not have the ability to
outright
own property itself. Of course, the Board of County Commissioners
is
the governing body of HSTU. The property will be in the name of
the
county and the county will have any liabilities that ensue with
that
property, also, it being waterfront property.
And I want you to be aware of that, that depending on its
configuration and use in the future, there is a potential on any
property that the county owns for a liability of a kind based on
how
we
it's used and accessed.
COHMISSIONER HAC'KIE: If somebody falls in the lake, because
didn't -- MR. WEIGEL:
nature.
the
If they fall in the lake, or things of that
COHMISSIONER CONSTANTINE: How did this $10,000 of assessments
pile up?
COHMISSIONER HAC'KIE: Sewer. It's a sewer assessment.
MR. WEIGEL: It's a long time obligation, since about 1989.
CHAIRMAN HANCOCK: Bayshore frontage that was assessed when
sewer was installed.
HR. WEIGEL: That's right.
CHAIRMAN HANCOCK: I'm not willing to accept $10,000 liability
for the general fund for the county to pay, for the taxpayer to
pick
up.
When I heard "gift", a gift usually means little or no strings
attached.
COHMISSIONER HAC'KIE: But his letter did say, underlined, at
no
cost or expense to county taxpayers. I'm going to hope that he
meant
with assessments paid.
CHAIRMAN HANCOCK: Okay.
can't
support it.
COMHISSIONER CONSTANTINE:
Without the assessments paid, I
Yeah, if we can clean that up, then
it's a great idea. But I'm really uncomfortable giving us here,
here's a $10,000 debt, free of charge.
COHMISSIONER HAC'KIE: Yeah, well, we -- I understand that.
CHAIRMAN HANCOCK: With the concerns that have been stated, in
order to authorize the County Administrator to move forward under
certain conditions on this property, we need a motion crafted to
include all of those conditions very concisely, so that no one can
come back and say Mr. Fernandez, that's not what we said. We don't
want to put him in that position.
COHMISSIONER CONSTANTINE: Oh, sure, we can.
CHAIRMAN HANCOCK: Well, we can. We do it as a matter of
record,
but what the heck.
COHMISSIONER HAC'KIE: I'd like to make a motion that the
county
authorize the County Administrator to accept, on behalf of the
County
Commission, title to the subject property, subject to satisfactory
title review for marketable title, subject to an environmental and
natural resources check by county staff, and subject to
acceptability
by Parks and Recreation for use as a Bayshore HSTU park.
COHMISSIONER CONSTANTINE: And subject to the --
CHAIRMAN HANCOCK: Subject to the resolving of the water and
sewer special assessment lien by the current property owner.
COHMISSIONER HAC'KIE: Subject to payment of the outstanding
assessment by the current property owner, or others who might want
to
come forward -- just subject to the payment.
CHAIRMAN HANCOCK: What about, did that include the
requirement
of a reverter clause should contamination be found on the site
within
a reasonable period of time?
COMMISSIONER MAC'KIE: I guess. Why don't we -- what I am
hopeful is that the environmental and pollution control department,
they do this every day. They walk property every day, they do the
assessment every day to decide; that's what we always do. We don't
have environment audits of any particular expertise. We have our
environmental staff do that walk.
COMMISSIONER CONSTANTINE: Unfortunately, a walk of the
property
doesn't always find everything, particularly when we're under a gun
for two weeks. I would hope we would have a reverter clause, just
so
tax
if we had a surprise two months from now, or three months from now,
that we'd have some way of handling that.
COMMISSIONER MAC'KIE: I don't know if that's sufficient for
purposes is my only hesitation.
MR. WEIGEL: Okay. Or another alternative to that would be
that
he indemnify us for all appropriate remediation or mitigation of
the
problem.
COMMISSIONER CONSTANTINE: And I realize his gift has got to
be
to his own benefit, and I don't anticipate a problem, but just, we
want to make sure we protect the taxpayers.
CHAIRMAN HANCOCK: My concern is that whether it's to Mr.
Chlumsky's knowledge or not, somebody had a drum of something
sitting
on the property, we go in to dig a footer for a picnic pavilion,
and
then all of a sudden, the smell of gas shows up; we're stuck with a
clean-up site. That's my concern.
Without the time to do a proper due diligence on the property,
don't think we can expose the taxpayers --
COMMISSIONER NORRIS: Well, let me tell you a little secret.
CHAIRMAN HANCOCK: Tell me a little secret, John.
COMMISSIONER NORRIS: My little secret here. If that scenario
should happen, the reverter clause ain't going to do you any good
with
the federal EPA.
COMMISSIONER HAC'KIE: You're so right.
COMMISSIONER NORRIS: They're going to the deep pocket
anywhere
down the chain of title from day one.
CHAIRMAN HANCOCK: What's your recommendation on that?
it's
a concern that really can't be answered?
That
you
COMMISSIONER NORRIS: Well, every time you take title to
property, you run that risk.
COMMISSIONER HAC'KIE: You take that risk.
COMMISSIONER CONSTANTINE: I don't know whether that's true,
though. I mean, that was a sticking point on the Marco Airport, if
was
recall.
COHMISSIONER HAC'KIE:
some appropriate mitigation.
Now, we can require indemnification or
And I think that's what Mr. Weigel
saying, is that we would have some sort of an indemnification
agreement from Mr. Chlumsky that if, in fact, there is some serious
hazard there.
CHAIRMAN HANCOCK: I guess I'm just asking it be addressed to
the
extent practical. Not that everything under the sun be covered. I
understand that's unreasonable and Mr. Chlumsky is not going to
agree
to that. I wouldn't either. But to the extent practical --
COHMISSIONER CONSTANTINE: But keeping in mind our
responsibility
is to the general taxpayer --
COMMISSIONER MAC'KIE: Absolutely.
COMMISSIONER CONSTANTINE: -- not to Mr. Chlumsky. So while
we'd
love to have the property, we can't expose people more than is
reasonable in any transaction.
COMMISSIONER MAC'KIE: What I understand is that what I've
proposed on this little memo I gave you, is that the same
procedures
be undergone for environmental review of this property as are
always
undergone.
In other words, the first step is the walk and the site review
by
our staff, but if they see anything that makes them warrant further
review, they can review it and solve that problem --
CHAIRMAN HANCOCK: Like big towers of belching material.
COMMISSIONER MAC'KIE: Then we can't take title.
COMMISSIONER CONSTANTINE: Again, what you see on a walk
doesn't
-- I mean, unless you do soil borings and those things, you're not
going to know.
COMMISSIONER MAC'KIE: But this is what they always do. I
want
them to do on this piece of property what they always do.
COMMISSIONER CONSTANTINE: In 10 days.
CHAIRMAN HANCOCK: I think we have to remember that this isn't
the kind of property that's going to have some subsurface
exploration.
You know, we're not going to go in there and be digging stuff out.
If
it's going to be a park, it's going to be a park, and the type of
improvements to a park are fairly noninvasive.
So Mr. Fernandez, did you have something?
MR. FERNANDEZ: Well, I was just going to suggest that for the
kind of assurances you're looking for, we might only be able to
address those by some contracted work, having an engineering firm
come
on the site, the kind of exploration that you were just talking may
not be necessary. I was just thinking for that level of assurance,
that's what you're going to need.
COHHISSIONER HAC'KIE: But did I misunderstand? I think you
told
me you're going to request staff to do what they always do for any
piece of property we buy or receive by gift, and that we can do
that
or we can try to do that within the period of time. If we can't do
it, we don't take title. It's a condition of accepting the title
is
to
that they do the same level of scrutiny that they do for any piece
property we buy.
COHMISSIONER CONSTANTINE: Do you oppose having some sort of
indemnification or reverter clause?
COHMISSIONER HAC'KIE: No, not if Mr. Chlumsky will go forward
with the gift, I don't think it's necessary, so I don't oppose it
either way.
COHMISSIONER CONSTANTINE: I just -- all -- again, I just want
stress all I'm trying to do is I don't want to put a damper on the
gift, but I want to make sure that the taxpayer is protected as
part
of it.
We don't want any surprises three months from now.
You're right. I mean, DEP can come after us, but there is
nothing to prohibit us from turning around, if we have some sort of
indemnity, to turn around and go after Mr. Chlumsky, should there
be a
problem. Hopefully, there never is.
CHAIRMAN HANCOCK: Isn't the litmus test the same, whether
there's a reverter or not? And that is if Mr. Chlumsky gave us the
property with the knowledge --
COHMISSIONER HAC'KIE: Right.
CHAIRMAN HANCOCK: -- that there was some type of issue or
problem with the property without disclosure, then he can be held
liable for passing that on?
MR. WEIGEL: Yes. But Mr. Norris is correct, that anyone in
the
you
chain of title is subject to the arm of the DEP, et cetera. Then
bring in the other to attempt to assist.
I think that whether we have an indemnification or reverter or
both, conceivably an insurance policy can be purchased by the donor
that may take care of that very easily and that meets the kind of
satisfaction Risk Management and our office would look at.
And also, Mrs. Hac'Kie was talking about, what the county does
for properties generally, whether it's by acquisition of any kind,
purchase or gift, is what's called a test one environmental audit.
Pollution Control does that, and I had assurances this afternoon
that
they absolutely could get that done within the kind of time frames
we're talking about here.
COHMISSIONER NORRIS: I'm completely comfortable with doing
that,
as long as that's the procedure that we do on any other piece of
property.
CHAIRMAN HANCOCK: Likewise, I would agree with that, along
with
the additional conditions stated in the motion, which we do not
have a
second for.
COMMISSIONER NORRIS: What was the additional that you
referred
to.
COMMISSIONER MAC'KIE:
title would include --
COMMISSIONER NORRIS:
COMMISSIONER MAC'KIE:
Natural
Resources.
COMMISSIONER NORRIS:
any
CHAIRMAN HANCOCK: Commissioner Mac'Kie?
COMMISSIONER HAC'KIE: Clear title.
COMMISSIONER CONSTANTINE: Clear up the outstanding $10,000.
Clear title, which is one of -- clear
No, the additional one.
Parks and Rec, Environmental and
And make sure that we get it clear of
encumbrances.
COMMISSIONER MAC'KIE: Yes, sir.
COMMISSIONER NORRIS: Well then, I'll second that.
CHAIRMAN HANCOCK: We have a motion and a second. Further
discussion on the motion?
Seeing none, call the question. All those in favor signify by
saying aye.
Opposed?
(No response).
CHAIRMAN HANCOCK: Motion carries five-zero.
That brings us to the lovely little part of our agenda that
states, "adjourn." Mr. Weigel, Mr. Fernandez, anything additional?
MR. FERNANDEZ: Nothing here.
MR. WEIGEL: No.
CHAIRMAN HANCOCK: With that, ladies and gentlemen, Happy
Hanukkah, Merry Christmas, and have a wonderful New Year.
COMMISSIONER MAC'KIE: Ho, ho, ho.
the
There being no further business for the good of the County,
meeting was adjourned by order of the Chair at 7:03 p.m.
BOARD OF COUNTY COMMISSIONERS
BOARD OF ZONING APPEALS/EX
OFFICIO GOVERNING BOARD(S) OF
SPECIAL DISTRICTS UNDER ITS
CONTROL
TIMOTHY L. HANCOCK, CHAIRMAN
ATTEST:
DWIGHT E. BROCK, CLERK
These minutes approved by the Board on
presented or as corrected
as
TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING
BY: Kaye Gray, RPR