Ordinance 2010-42
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AN ORDINANCE OF THE BOARD OF COUNTV,'}
COMMISSIONERS OF COLLIER COUNTY, FLORIDA:-~;:
AMENDING ORDINANCE NO. 88-93, THE CITY GATE;:2'
COMMERCE PARK PLANNED UNIT DEVELOPMENT, BYg~. ~~
DELETING SECTION VII CONTAINING THE REDS;'.,:, cO
COCKADED WOODPECKER MANAGEMENT PLAN;""
PROVIDING FOR CONFLICT AND SEVERABILITY; AND
PROVIDING AN EFFECTIVE DATE.
ORDINANCE NO. 10 - 42
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WHEREAS, on December 13, 1988, the Board of County Commissioners adopted (I)
Ordinance No. 88-93, the City Gate Commerce Park Planned Unit Development (the "PUD") and
(2) Development Order 88-02 (the "Development Order"), which approved a Development of
Regional Impact (DRI) known as Citygate Commerce Park Development Order; and
WHEREAS, as a result of an appeal by the Florida Department of Community Affairs
(DCA), a Settlement Agreement between Collier County and DCA resulted in Development Order 90-
4, Resolution No. 90-431 dated August 28, 1990 (1990 DOA), which amended Section One:
Conclusions of Law, Section 4, Vegetation and Wildlife/Wetlands, including paragraphs c and d
(which were entitled "Off-Site Mitigation" and "Red Cockaded Woodpecker Management Plan",
respectively) of the Development Order; and
WHEREAS, the provisions of the 1990 DOA are the currently effective provisions relating to
Red Cockaded Woodpecker Management and mitigation; and
WHEREAS, 850 NWN, LLC, a Florida limited liability company, and CG II, LLC, a Florida
limited liability company, (collectively "Petitioner") owns the PUD property east of the FPL Easement;
and
WHEREAS, the Petitioner, after formal consultation with the United States Fish and Wildlife
Service (USFWS), developed the City Gate Habitat Conservation Plan (City Gate HCP), which
incorporates the latest Red-Cockaded Woodpecker CRCW") management methods; and
WHEREAS, the City Gate HCP was approved by the USFWS on March 30, 2009 and issued a
Federal Fish & Wildlife Permit (City Gate Federal Permit) to the Petitioner on July I, 2009; and
Underlined text is added; Stnoel< throu!;h text is deleted.
Ci'y Gate PUDA,PL20 10.845
Rev. 11/09/10
Page 1 of 5
WHEREAS, the City Gate Federal Permit incorporates the most current RCW mitigation
strategies; and
WHEREAS, the RCW Management Plan in the 1988 PUD varies from the RCW management
plan and mitigation strategies required by the City Gate HCP and City Gate Federal Permit; and
WHEREAS, Roger B. Rice, of Roger B. Rice, P.A., representing the Petitioner, petitioned the
Board of County Commissioners of Collier County, Florida, to amend the PUD; and
WHEREAS, Petitioner, simultaneously with Petitioner's petition to amend the PUD in the
manner set forth herein, has petitioned to amend the 1990 DOA to conform the RCW Management
Plan and mitigation strategies of the Development Order to the RCW management and mitigation
requirements of the City Gate HCP and Federal Permit respectively; and
WHEREAS, upon the approval of Petition Ntunber DOA-PL2010-843 and the adoption ofa
resolution amending the 1990 DOA (the 2010 DOA), the operative RCW management and
mitigations requirements for the City Gate DRIlPUD will be the requirements of the 2010 DOA; and
WHEREAS, for clarity and administrative efficiency, both the County and Petitioner agree
that: (I) the RCW management and mitigations requirements for the City Gate DRIlPUD will be the
requirements of the City Gate HCP and Federal Permit respectively which shall be required by the
2010 DOA, and (2) that any actual or potential conflicts between the DR! and PUD with respect the
RCW management and mitigation should be eliminated by deleting all provisions regarding RCW
management and mitigation from the PUD, so that the requirements shall be only as set forth in the
2010 DOA; and
WHEREAS, the Collier County Planning Commission held a public hearing on the petition
on September 16,2010; and
WHEREAS, the Petitioner and the Board of County Commissioners desire to amend the
PUD to conform to the City Gate HCP and the City Gate Federal Permit.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA that:
Underlined text is added; Struel, threugh text is deleted.
City Gate PUDA-PL201O.845
Rev. 11109/10
Page 2 01'5
SECTION ONE:
AMENDMENTS TO SECTION VII OF THE PUD DOCUMENT IN
ORDINANCE NO. 88-93, THE CITY GATE COMMERCE PARK
PUD.
Ordinance 88-93 is hereby amended as follows:
Section VII of the PUD document is hereby deleted in its entirety:
RED COCKf.DED WOODPECKER IVL\NACEMENT PL\N
Tile Red Cockaded 'NeeElpecker (RCW), Pieioees Borealis, is a proteeteEl species of piae forest
dwelliag wilEllife. Duriag plaaaiag of tile Citygate project, several Rcd Cec!laded
Wooepecker Best trees 'liere ideatified on tile site, and determiaatioa was maee that a Bamber
of ReEl Cockaded Woodpeckers atilize some of the Best trees aHd femge oa the piae forestee
portio as of the Citygate site, as well as oa adjoiaiag off site piae f-erested laaEls. !. Red
Cockaded Woodpecker Maaagcmeat Plan was prepared, iaeorporated in, and approved as part of
the Developmeat of Regional Impact applieatioa. Tile elemeats of the plaa have beea
incorporated in the Citygate Master Developmcat Plaa aad this PUD doeameat. The eeatral
featare of the Management Plan is an agreemeHt to deter deyelopmc:mt of a 72+ acre area 'lIhieh
embraces the nest trees, a buffer of pine forest aroune the Best trees, aHd a eorridor of piae forest
which connects the Best trees to each other aad to existing off site pine forested lands oa which
the birds HOW forage, so leag as tHe birds cOlltiHue their eldstiag Ilestiag pattern. The 72+ acre
illterim preserve area is iadieated oa the Master Developmellt Plaa, as are the Best tree loeatieas
aad 400 foot diameter circles aroulld eaeh Best tree. .".fter planning of the Citygate project was
initiated, a forest fire se'.'erely bUfIled a large portioa of the Citygate site, iaeluding apprmdmately
half of the interim preserve area. Many of the piaes in the Burned area have died, and the Florida Forest
Service advises that pille death will continue for seveml years. The IOllg term impaet of the forest fire Oil
utilizatioll of the area by Red Ceekaded '.Voodpeckers cannot Be foreeast witH aecur-aey, but arJftlal
mOllitorillg of the birds will provide the aeeded iaformation,
The follo'.viag maaagemenUmonitoriag activities are an iHtegml part of the Red Coelcaded Weodpeelcer
Management Plan and of this PUD docllmeHt:
L Prior to issuance of construction approval fer the streets, draiaage faeilities, utilities,
ete. in a project deyelopmelll/phase, a Red Ceclffided \lloodpec!lor survey utilizillg appr-oved
methodology will Be conducted to illsure that the birds ha'.'e HOt established nest cavities ill tile
plaaaed constructieH area. The survey shall oceur within 60 days of the start of
cOllstructiea, and if it is determined that Red Cockaded Woodpeckerne31 c!l'iities Rave been
established ia tile eoastructioa area, determillation shall be made by tHe ageHeies respollsible
for Red Cockaded Woodpeclccr protectioa laws as to the aecessity of modifying the Red
Coekaded Woodpecker M(lIlagemeHt PlaH.
2. .^u-.f!UaJ Red Cockaded 'Noodpecker SUf\'eys utiIiziHg appreved methedology will be undertakell
until five years after final build out of the Citygate prejeet, with results of the annual surveys
to be furnished to the Florida Game aHd Fresh Water Fish Commission, the Southwest Florida
Underlined text is added; Struck threugh text is deleted.
City Gate PUDA.PL2010.845
Rev. 11109/10
Page 30[5
Regisllal Plar.aiag Ceuacil, alld Cellier CllUllty ',',itllia 30 days of sUf'iey cSFIlflletien.
3. MelaleHea and other 6)wtie vegetatioa witllia the Red Cockades Woodpecker ll'eserv6 area and
el5e'.\Rere oa tHe Citygate site will Be eradicates, thus sigllificantly eHhaneiag tile 'lluHity ef
RCW forage area Oil site.
4. e)(eessi'ie UHdergro'Nth will be ceBtfllllee BY bumiag aREliorBY use ofmeelulIlieal e'luipmeat.
5. Pille trees having a DBH of g iaclles or more, leeated eatside the R-C\l/ preserve BlIt '.vitllin
the required yard aad buffer areas ia tHe remaiader of tHe site, 'sill Be eoaservee to
provide additioaal R-CW forage areas.
6. Lands V/ithia the RCW preserve area may be utilized for limited recreatiolllll pUfjlOGes SUCH as
,....alkways, jogging trails, picaie faeilities, etc., so loag as disturballce to native 'iegetatiea is
minimal and the recreatiollal activities avoid the RC'.V Ilest trees.
7. Ulldergroood utilities aRd sllifaee draiaage swales may cross the RC\V preserve area.
8. The preserve area will be posted witH siglls which illdicate that it is aH RC'.V preserve aHd
tllat distarbaRee of the Birds is prohibited aHd llIllll'.vful.
9. Propesals to modify tile Citygate Red Cockaded Woodpecker MaaagemeHl Plaa may be
suemitted at aH)' time. SHeh proposals shall Be supported by a currellt survey of oa site Red
Cockaded \1/ oodpecker Besting aIld romgmg patterns, and such additieaal iaformatioll as is
required to e'ialuate the propesed MaaagemeHl PlaIl medificatioll. The mtioaale for
autHorizing lands to Be removed from the RCW preserve area ma)' illelue6 abandonmeat efthe
Best trees by tHe birds ana/or a chaRge in tHe ehaFaeter llftHe pine rorest fomge area, resultiag
ill a lllss of the habitat cllaracteristics re'luired by the RCW.
Propesals to modify tHe Maaagemellt Plan shall Be sHbmitted to Cellier Comly as an
ameaamellt to tHe Cit)'gate PUD, with copies to the Southwest FIsrida Regiollal Plar.nillg
Ceuacil aad Flerida Game alld FreSH '.Vater Fish Commission, THe Southwest Flllrida
RegioBal Planlliag Ceullcil aHdier the Fleriaa Game aRd Fr-esh Water fiSH Cllrnmissioa may
pro'iide cemmeHts and reeommeHdations to Collier COllllty regarding the preposed ManagemeHt
Plaa medification.
The PlanHing'Zolling Director shall prepare a recommendatioa regardiag tHe proposed
ManagemeHl PlaH modifieatioll; an ad'ieftised public Hearing shall Be held BY tile Board of
CoUHty Commissiollem; aHd Hpsa a fiadillg of sHitability tile Board of Ceunty
Commissiellers may, by a maj ority vote, autHorize tHe requested Management Plan
medificatioll.
The Florida Game and Fresh \Vater Fish Csmmissioa has reeommcllded to the Southwest
Flerida Regieaal Plar.llillg Ceooeil that a regioaal plaH be de'ieloped v.hich will result ill the
public acquisition ef geegrapllieally suitable wildlife habitat whieh is comparable ia amount
and cllaracter to ,....ilalif-e habitat wHicl1. is lost to tile process of urbaRizatiea withia the
regieR. Commissioa wilalife biologists ha'ie stated that appro)dmately 233 aeres of the 2g7
acrc Citygate site have the ellaraeteristics efRed Cockaded Woodpeeker habitat THe
Commission wildlife biologists have stated their e)(pectatioa that, upoa developmeHl of tile
Citygate site and surrolHldiag laRds, the Cldstiflg Red Cock-aded Woodpeck-erpepulatiell'Nill
abandon the area, in spite of the establishmellt of the Citygate Red Coekaded Weedpeeker
preserve area and associated Red Coclcaded W-eodpeck-er managemeHt commitmeHls. In tile eveHl
aregiollal wildlife habitat aequisitioa plaa is adopted, the purpose of which is to mitigate
Underlined text is added; Struel, threugh text is deleted.
City Gate PUDA.PL2010.8.15
Rev. 11109/10
Page 4 01'5
'.vildlife habitat loss 10 urbaR developmellt in the regioa, the Citygate project sHall be subjeet
to such impaet fees or other implementatioll measures as are lawfully eaaeted for the purpBse
of implemefltiflg the regiollal plaR.
SECTION TWO:
CONFLICT AND SEVERABILITY.
In the event this Ordinance conflicts with any other ordinance of Collier County or other
applicable law, the more restrictive shall apply. If any phrase or portion of this Ordinance is held
invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a
separate, distinct, and independent provision and such holding shall not affect the validity of the
remaining portion.
SECTION THREE: EFFECTIVE DATE.
This Ordinance shall become effective upon filing with the Department of State.
. PASSED AND. DUL Y ADO~TED .bY. sur,er-majorit~ vote by the
CommiSSIOners ofColher County, Flonda, thiS ~ day of J~CJv'(dl btr
Board of County
,2010.
ATTEST: .' .
DWIGHTE.'BRdck,CLERK
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
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By:
Attest .. .. 0&
.t9nature OIW'.
By:
FRED W. COYLE, Chairman
Approved as to form and
legal ufficiency:
{, L A Clo
H idi Ashton-Cicko
Assistant County Attorney
This ordinance filed with the
Secretory of State's Office the
J!e day of~, 20lD
and acknowledgement of that
filin\l received this ..2L day
OftiO\l~~
By~ e
CPll O-CPS-01034\ 19
Underlined text is added; Struek threu!;h text is deleted.
City Gate P\JDA-PL2010-845
Rev. 11/09/10
Page 5 of 5
STATE OF FLORIDA)
COUNTY OF COLLIER)
I, DWIGHT E. BROCK, Clerk af Caurts in and far the
Twentieth Judicial Circuit, Callier Caunty, Flarida, do.
hereby certify that the faregaing is a true and carrect
capy af:
ORDINANCE 2010-42
Which was adapted by the Baard af Caunty Cammissianers
an the 9th day af Navember, 2010, during Regular Sessian.
WITNESS my hand and the afficial seal af the Baard af
Caunty Cammissianers af Callier Caunty, Flarida, this 15th
day af Navember, 2010.
DWIGHT E. BROCK
Clerk af Caurtsa,ndClerk
Ex-afficia to'13aard cii.
Caunty Cammi$si~riers
3~'\~'l~
By: Martha versaTi:J.
Deputy Clerk