Planning Board - Regular Meeting

Call the planning board meeting to order, please. I'm echoing in here.

Hi, Nanette.

Hi.

Hello down there.

Sorry, David. Will you call the meeting to order, please?

Member Finkel? Here. Member Hogan? Member Ferringer? Vice Chair DeVoy? Member Henson? Here. Member Jensen? Here. Chair Bailey?

I am here.

Would everybody please rise and join me for the Pledge of Allegiance? I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation under God, indivisible, with liberty and justice for all. Thank you. Next item, approval of the agenda. Anyone have any comments, changes? I will make a note that I think we are going to have a brief discussion about the timing of some of the items on our agenda, but I was guided by staff and our council that we should have that discussion when we get to those items.

Not everything.

All right. Anyone want to make a motion? Move approval. Second. All those in favor?

Aye.

Opposed? All right, the next item is a time-certain item. We'll come back to that one in a few minutes. Board absences, our next meeting at this time.

13th of July. Or 12th?

10th. 10th of July, maybe?

10th, I'm sorry. Right, 10th. 13th, 10th.

Yeah.

All right, anybody anticipate an absence?

Not here.

Okay.

Apologies.

Oh. We'll call that an excused tardy. Thank you. No need to see the principal. All right, so if you just want to note in the minutes that Hayden's here, so we have five of us. Board absences, next meeting at this moment, Hayden, is July 10th. Do you anticipate being here or not?

I will, unfortunately, not be here.

Okay. I think we talked about that at the last meeting. Yes. Okay. Moving on, approval of the minutes. We have a couple of them to discuss. The April 3rd minutes, everybody have a chance to review those? Any issues, any concerns? I'd entertain a motion if not.

Move to approve. Second.

All those in favor?

Aye.

Opposed? Then the next one is the meeting minutes from the May 1st meeting. Same question. Any comments, changes, issues?

Move approval. Second.

All those in favor? Aye. Opposed? All right, staff communications.

Again, the next meeting is July 10th. Right now we tend to have the Hilton possibly coming forward with a rezone. Also, the level of service traffic study preliminary came in a couple days ago. Myself and Mary met with the engineers. What happened is out of the 20 segments that were – got information on three I believe were cut by something so they're going to do some we're probably going to keep the study moving the way it is and get that information probably within the next month that's going to be a presentation in front of City Council and those three segments we discussed part of this contract is they're going to redo those in February of next year so we're consistent And that's Winterberry. It was Winterberry at South Collier, wasn't it? I'm trying to think the two or three sections. That was one of them that was really important to us because that's where, again, Hilton's coming in and some of that areas. But they said they did get partial data. They can...

Do some stuff there. Do some extrapolating.

Yeah, yeah, through their engineering guru stuff, they can figure something out where they can get some takeoffs based on that. But they're going to redo it for next February.

Do you know the other two locations by chance that were? I mean, I'm just curious.

They were not as critical as.

It was like Bluebird or something. I hate to bag on Bluebird, but Bluebird's not quite as critical as Old Marco, right? So if Old Marco was cut, it would be a little more.

But just so you know, previously when we did a level of service studies back in 2012, we only had 14 segments. We increased that to 20 segments and just three got cut.

And then they're going to add an additional location or two so we can get a little more finite.

Yes, because if you remember, we had a big project going on on North Barfield and Collier. So they're kind of as a bonus going to throw that in there because that all should be done by next February.

Oh, good.

Yeah. Okay. We hope.

So that's all I have.

Oh, and this was an agenda item. I just want to let you know I had to do with the financial disclosures. Those are due July 1st.

Fantastic. Anyone have any questions for staff at the moment?

No, I just want to say the email we got... obligations the planning board I think it caught me in the same way did chair Bailey the one about phishing attempts I thought that was a phishing attempt so whoever whoever did that did a good job disguising it because I would not have known to complete that unless that's not the first time we've had others that have gone out to applicants it's an AI AI can do a lot of great things and it can do a lot of really bad things and this is this is one of them I'm usually good at spotting those but that was so yeah convincing

Well, before we get into the meat of things, why don't we go back to the time-certain item. So let's go back to item 5. This is a time-certain item. It's the section of the agenda where anyone in the public who would like to speak on items not on today's agenda would have the opportunity to do so. If you'd like to, you could get up. State your name. You have four minutes, and you're allowed to speak about basically whatever you want. I do have two registered speakers here, but I believe they're both registered to speak about items that are on today's agenda, so we'll hold off on those for the moment. Anybody in the public that has a desire to get up and speak? Yes, sir?

Good morning. Good morning. My name is Ron Hattendorf. I reside at 1003 Anglers Cove, adjacent to Rose Marina.

Are you speaking about Rose Marina, sir? If you're speaking about Rose Marina. That's correct. Yeah, this is the time on the agenda where you're allowed to speak about items that are not on today's agenda.

Okay. I'll sit off.

Yes, sir. Thank you. Sorry about that. All right. Anybody else in the audience? All right, seeing no one, we'll close public comment. So why don't we move on to these items? We have a handful of resolutions, and I think there's going to be a discussion about changing the date of those. But what I would like to do, if it's okay, I know we do have some registered speakers here for these items, and would it be okay after we discuss these that we have some citizens comment? I know Mr. Hattendorf's here, and we've got somebody else. I mean, is that okay?

No. David Tolstice, City Attorney. If you're going to continue the items, then we're going to continue the entire hearing. And as those hearings are quasi-judicial in nature, we don't want to take any testimony today. So my recommendation would be that you don't allow any testimony or evidence that these items are going to be continued. While we appreciate citizens coming out and wanting to provide their input, we need to do it in accordance with the rules and procedures that we have established. And I'll duck behind the table now. Some people throw tomatoes.

OK. Well, yeah. I don't love that, but yeah. OK.

And just for the record, I asked, I sent an email out, it was for public notice, I sent an email out to the planning board asking that this issue be continued because the information that came in came in late. Normally we send our packet out on a Friday. We didn't get this information until Monday. There is no requirement for it, but staff needs more time to evaluate the new information that came in. That's why I asked the planning board to continue this to another date.

And has the new information even been put on the – I don't think it was attached to the agenda anymore.

No, we didn't get it until – yeah, we – So no one's seen it.

Afterwards. It's hard to have a hearing about it if the public hasn't had a chance to – That's correct.

Yeah, I'm sorry. I'm still stuck in my head about the... So I'm going to say out into the universe, and Mr. Hattendorf, I hope you're listening, if you perhaps would send an email out, if there's any citizens who want to send an email out to the planning board about their comments, and if, you know, we may be moving this meeting, and I hate the thought of inconveniencing people who have come here today, because we would like to hear your comments. We would like to hear the citizens' comments, so... So do we have a discussion that we want to have about this as far as moving it? When to move it, if we're going to continue it, what dates? I think we have a couple of options. And I think we probably want to see how to get as many people as we can here. As far as the planning board, staff, Mr. Tulsis, Martin, the room, citizens, obviously. But there's a possibility, I think, of having a second meeting later this month. There's a possibility of moving our July meeting. There's a possibility of having a second July meeting. I think those are all three options. And I would probably look to the board and everybody else to give me your availability and what your wishes are.

I'm here, but my opinion is that because of the complexity of this issue, that we should do this at a time when the entire planning board is here and not just some of us.

I agree with that. I'm not going to be available at the end of June, so I won't be back until basically through July.

Okay.

I couldn't hear you, Brad.

I won't be available. I'll be back like June 29th, 28th.

I'm going to be out of the country the end of June.

What about the 19th as a possibility? The 19th of June? No. No, you're gone. Okay, you're both gone. Okay, sorry.

Okay, so then let's move into July. You will not be here for the first scheduled July meeting.

If we were to do a second scheduled July meeting... You did it on the... Any of the Fridays after that in the month, I could be here.

Brad? I'm good. Nanette? Joan?

Aye.

So... So we're either looking at moving the July meeting or doing a second one, which

All right.

Apologies, everyone, for the technical difficulties. Call the meeting back to order, please. So we were discussing July meeting possibilities, and we're discussing two meetings possibly, right, because of the amount of information we're probably going to have to discuss in July?

I discussed with the applicant the idea of the 24th. I like the idea of having that week in between the previous meetings. So if you guys are good with the 24th, the applicant and staff is.

How does everybody here feel about the 24th of July?

I'm good with that. I'm good. The only thing that's difficult is, of course, we don't have Jeff and Mike to poll, which I'd feel better if we knew one way or another.

Well, just so you know, Mike and Jeff, they rarely miss a meeting. I mean, this is just the one.

Are we having more? I'm sorry.

No, it's the 24th. No, it's the 24th. Martin was asking for the 23rd, because he's out on the 24th.

What's the matter?

I mean, and we can do it on the 24th. I'm not opposed to it. I'm really not opposed to any date, so. But it sounds like, do we have some issues with the applicant? Let's sort this out too, right? So, Zach, you want to chime in?

The 23rd would actually be preferable to the 24th on our end, I believe. Yes.

Do we have other city meetings on the 23rd?

Yes. Yes. No. We've got one. He just said he did.

Yeah.

Who's that in the back back there? Martin. Martin.

The city calendar on the website shows that the waterways committee is on Thursday, July 23rd at 8.30. All I'm saying.

Well, you know on the TV, they do those crossovers where the two shows get together. I mean, we could have like a joint waterways planning board meeting and just throw it all on there. Yeah.

Yeah, no, thank you.

I would think that if the planning board wanted to have their meeting on the 23rd regarding this item that we can work with staff in the waterways committee to move it.

And waterways meetings are usually two hours, two and a half hours. I mean, what if waterways does it in the morning and we do ours in the afternoon? Is that a possibility? I mean, I hate to start moving other committees' meetings around.

Well, it might be important to first find out when it really is.

Zach, do you guys have any restrictions on time of day for the 23rd of July?

We have nothing on the 23rd. And it turns out we do have an issue on the 24th. So I think the 23rd, my general manager is flying out of the country, and I assume you will want him here. So 23rd. We can do the afternoon.

Does anyone else on the board have a restriction as far as time of day on the 23rd? If we were to do afternoon, that would be a Thursday instead of a Friday. But again, if there is a waterways committee meeting, I would say, why don't we let the waterways committee meet in the morning like they normally would? Because they're doing the same thing we are, right? They're scheduling their summer. They're scheduling their travel plans. Staff is scheduling their time. I mean, to just call them up and be like, hey, we're the planning board. You need to move your meeting. That's kind of lousy. So I'm sure we could do it in the afternoon and they could do it in the morning, right?

Right.

Is that OK for you two?

One o'clock.

Yeah, one o'clock.

One o'clock, yeah.

Would one o'clock be okay? It's fine. Are you on your way out of town at some point then, possibly?

I have another meeting scheduled later that day, but this will take priority, so.

I'll be here.

What's the previous?

So 23rd of July, 1 p.m., going once. Going twice.

We have two people that aren't here.

You have a commitment from five, which is a quorum, so you're okay.

You guys are okay with that, right? So we probably want a motion to continue, and you want to do this for each item, is that correct?

Yes, please. So I would just introduce the item on the agenda and ask for a motion to continue it to July 23rd at 1 p.m.

So do we have somebody on the board who'd like to make that motion for item A on our agenda?

So moved.

Second. Just for reference, that's item 9A under old business. That's the site development plan amendment SDP 24-000139.

Would we make it for all?

You're just going to do each one separately. Oh, okay.

May I comment on this just briefly? Just for record purposes, I just want to make sure this is clear, that because we noticed this meeting and you are continuing this to a date and time certain, that there will not be – and as to this item, I don't think there's a required notice anyway. But as to the subsequent items, there are required mailings and signs. And I just want to confirm what everyone's understanding on the record is since we have a court reporter here. what the notice expectations are. My understanding of the law and the code is that we don't have to re-notice any of these because it's been continued, but I think it's important for you all to ask your city attorney before we move forward. Do you want to chime in, David?

Yes, so under Florida law, if a hearing has been set for a specific date and time, and then that item is going to be continued, if it's continued to another specific date and time, Florida law provides that you do not have to re-notice it. So certainly there will be a notice regarding the meeting, but individual mailings, individual signs will not go out or are not required to go out under the law.

Does our code allow us to require it?

I mean, the city can always do more, but we can't, as we're sitting here today, require the applicant to resend notices because they've already complied with what's required under the code.

So we have a motion and a second. Any other comment? Daisy, would you call the roll, please?

Member Jensen. Yes. Vice-Chair DeVos. Yes. Member Finkel.

Yes.

Member Henson.

Yes.

Chair Bailey.

Yes. All right. So we've continued that item. July 23rd at 1 p.m. Correct. And so we want to replicate the process for B and C on our agenda.

I move item 9B move to the July 23rd 1 p.m. meeting.

Second. Any comment from the board? Daisy, would you call the roll on that, please?

Member Finkel? Yes. Vice Chair DeVluis? Yes. Member Henson? Yes. Member Jensen? Yes. Chair Bailey?

Yes. All right.

And then item C. I move 9C be moved again to the July 23, 1 PM meeting.

I Could make a quick comment after conferring with my client we would voluntarily agree to re notice by We so just and but I just want to make sure so we're required to send out the first-class mailers and post the sign The city runs the newspaper ad so if the city is willing to run the newspaper ad We will send out the mailers and do the sign I don't want to be dinged for not running the newspaper out if the city doesn't run the newspaper because that's not part of our requirement

I think whether or not they do it, it's not required. I think if you go above and beyond, I'm sure there's somebody in the world who would appreciate that.

So basically we're going to notice it the same way we noticed every other one of these hearings, even though it's not required. And just briefly, because this was brought up earlier and the phrase late was used, there were no submittal timeline requirements here and we, if you recall at the last meeting, I said June was going to be hard to hit and we had to do a lot of consultant redrafting. the reason why we're not up here we don't want this to go forward today so I don't want there to be this specter that we were showed up and we wanted to move forward like we will re notice it we will do it at that time we want you to read the information we understood the reconsideration clearly which is that you felt that you didn't understand the information so I just want to put that on the record again with the court reporter here so that we're clear that it was not intentionally late we're not trying to skunk the process so we'll see you in July thank you very much you're politely telling us I told you so no

Thank you for your willingness to do the renoticing so we have a motion anything else from the board on this item see Daisy would you call the roll please member Finkel?

Yes vice chair de Vloys. Yes member Henson. Yes member Jensen. Yes Chair Bailey.

Yes. All right. So those have all been continued All right, so then on to new business I We have a couple of discussion items, no resolutions or anything to read into the record. First one, fence heights on residential lots. Dan?

This agenda item, this was asked by the Planning Board to go in front of the – the Planning Board asked the City Council to discuss this item. This is regarding Section 30-1009, fence heights, and if you were to look at – think I highlighted it yes e6 fence heights can be changed based on information that I get through a administrative variance in this case I think Jason will concur some of the heights of these new single-family homes because of the floodplain map changes are two or three foot higher than the neighbors So what happens is an existing neighbor has a four-foot fence. Now, with a new home going next to it, may only have a one or two-foot high fence. So there has to be some sort of an adjustment for that, and I believe that's what this discussion is about.

Yeah, and so if I could chime in, that's absolutely what the discussion is about. And I guess what I was going to propose was be to be stricken. And so all that does is instead of saying that fence restrictions of four feet in the rear yard of waterfront lots, if that's removed, then all rear lots would have fences on Marco Island that would be allowed to be six feet. And what that does is it sort of creates a process such that people aren't having to email growth management all the time saying, hey, how you guys doing? Hope you had a great weekend. You know, we've got the 78th issue that we're coming across now because we're building houses higher and for life safety reasons, would you guys approve that? And so that's where I was trying to go with this was if you just remove that, you know, again, we've got a four foot height restriction on fences and rear waterfront yards, but we don't have a restriction that someone can't put a 10 foot high hedge in. Your riparian rights are like this, so neighbors can't really view this way, so. That's where I was trying to go with this, but it's a board conversation.

Okay.

Makes sense.

And the building department, I can tell you my experience has been with a couple of these issues, right? I mean, the building department's position, and you know this, right? If we're building a house next door, the neighbor, we've created an issue that it's basically our responsibility to resolve it, right? So I had a house I just finished. I could not CO that house until I came to terms with the neighboring property owner, and we did something to make sure that their pool barrier complied with codes. The building department would not give me a final building inspection until I did that. So if someone's creating the problem, they have to resolve the problem. helps do that without adding additional staff time and oversight and all that stuff. It's a simple process. It doesn't require a lot, and it keeps you guys and it keeps subjectivity out of it is where I'm going.

So Jason, just to explain, again, the FEMA thing I understand completely because the firm maps have been redone since 2024. It's a nightmare. I mean, I look at the language that Dan proposed, the staff proposed. It seems a little broad to me.

They can do anything. That language is in the code already, that highlighted language. So the issue that specifically is happening is when you built your house, right, you have a screen cage, right, for your pool barrier. So if you choose not to have a screen cage and you choose to instead have a fence and your fence goes out to the property line and you put a four foot fence up because you need plus or minus four feet for a pool barrier, right? Right. With a fence. So now your neighbor comes next door and they build a property and that property is higher by virtue of flood maps. Right. Right. And then so their yard is higher. by virtue of their yard being higher, if you had a four foot fence and their yard's six inches higher, your pool barrier is no longer compliant. So this project creates a life safety issue on your property. So there's a couple of solutions to that, right? Like either tell this person don't build their house, or say how can the two neighbors figure out how to solve this problem? Either put a fence on this property, raise this fence. It's sort of a conversation that neighbors could have. But that's what it is. So what I've specifically had to do is I've had to take a neighbor's fence out that was a four-foot fence, remove and replace that with a six-foot fence. And so we've done that. And other builders are doing it too. But we have done that because then it it resolves all the problems for both neighbors, right?

It's the same problem with seawalls and docks. People are putting in seawalls and docks a foot and a half higher than their neighbors, and so then all the water flows into the neighbor's yard. It's the same issue.

Yeah, and so whoever's putting that higher seawall in on that higher property, what they're supposed to do is they're supposed to put a berm or retaining wall, or they're supposed to put something in such that they are not throwing their stormwater on the neighboring property.

Right.

But the fences is sort of.

So in your opinion, this really addresses that issue. This is what this is all about. The FEMA, the grade.

Yeah, it's just the grade. And it's helping the neighbors resolve it without, again, you know, I like the notion of having just a real easy process in place and And Dan and Mary have not given me any heartache over any of this. I've sent them an email in the past. I've given them an address. I'm like, for life safety reasons, will you approve this? And they say yes. But again, it's subjective. It inserts them into a process when they have a whole bunch of other things they're working on. And I don't see any negative consequences of allowing a six-foot fence instead of a four-foot fence. And that's why I wanted the board to discuss it. Again, you could put a hedge in. Fair point. Right. Your hedge can be 10, 15 feet high, right? And I think that, you know, just allowing the six-foot fence. Then it's uniform everywhere on the island. People don't need to know, oh, well, on this lot you can do this, but on this lot you can do that. And the simpler we make it, it just makes it easier for everybody to understand, I think. Okay.

Thank you.

Anyone else have any more questions, comments? Anyone want to make a motion or suggestion?

So what would the form be? What are we looking to do? Is it to make a motion that staff bring this to council?

No, I'd have to bring it back to you.

Okay, in the form of revised language.

In an ordinance fashion. And so you'd make a motion that I'd make those changes. You know, there might be more changes coming forward. And at least on this one, I would just bring that forward as making that change, eliminating that section, what, B2?

Yeah, I'd make that motion. Makes sense to me.

We have a motion. We have a second?

Second.

And just for the record, the motion is to direct staff to draft an ordinance to revise section 30-1009, removing B2, and bring that back to you for your review.

Correct.

Perfect. We don't have anyone signed up for citizen comment, but I will ask if there's any citizens in the public that would like to comment on this.

Good afternoon. Excuse me. Good morning. Dwayne Thomas. I kind of agree with everything Jason said. I've had a lot of confusion problems, excuse me, on these permits when you've got to read them, whether it's four foot within that last 25 foot of the seawall, and it would clear up a real confusion factor, especially on corner lots. It would really clear up the ordinance if it was six foot all the way to the property line or to the seawall. Thank you. Thank you.

Anyone else? Daisy, would you call the roll, please?

Vice Chair DeVluis?

Yes.

Member Finkel?

Yes.

Member Henson? Yes. Member Jensen? Yes. Chair Bailey?

Yes. That item is moved forward to staff, right? So we'll look forward to something from you guys on that one. Thank you. Next item is another discussion item, impervious surfaces. Dan, you want to lead us off on this one?

Sure. This is another item that the planning chair brought before the city council. The city council gave direction to discuss. It had to do with... impervious surfacing on single-family lots. Right now, you're allowed to have 67% impervious on lots, and there's some exceptions in there, and it's under 30-435. I highlighted in red, which is E3. Three, impervious surfaces, single family districts, no more than 67% of the total lot area within a single family zoning district shall be covered with impervious surfaces. The use of pervious pavers and synthetic turf will be included in the calculation to the extent that the applicant provides credible evidence of the permeability of the surface. Impervious surfaces may not cover a French drain. If required, except that up to two, four feet wide walkways to the dock facility may be used. So that's the section, and I'll bring that back to Jason for discussion.

Yeah, and I think one of the reasons, if I recall correctly, we thought about talking about this was that we had some people come up and suggest there was an issue with things they were building and there was some back and forth on whether or not things were pervious or impervious. And so my thinking on it was that we were sort of discussing the pervious slash impervious nature of things more than anything else. I don't know if we – I mean, we can certainly get into the weeds on things, but I think that's where it was. I'm sorry. Mary?

Well, also included in the packet are definitions from the various chapters in our code.

Yeah, which those don't seem to all be the same.

No.

no they don't but um the section 18-211 impervious means land surfaces which do not allow or minimally allow the penetration of water and included as examples are building roofs normal concrete paver driveways paper sidewalks and asphalt pavement and some fine grained soils such as clay so um It's minimal allowance.

Does anyone have any comments on this or questions? Dan, do you have a position on this?

We're just chit-chatting here. I mean, you have a position.

My position, well, for information for staff, what is the ultimate goal? Is the goal for water filtration for clean water for? Because if you were to look at some other ordinances Naples or Sanibel Island Their impervious surfaces are more restrictive on some of those areas while we're a little more lenient What are we doing this for are we doing it for aesthetics are we doing it for? Environmental I guess that would be the question and I would ask the board because in staff's position the code has been pretty much the same since I've been here we did allow for the previous pavers and we did allow for the artificial turf but that was there's a lot of discussion on that and the changes were made but again it depends on what your the

Go ahead. Also, just to provide a little more insight, it has been suggested that decks should be counted as pervious. And so.

Let me get into that for just a second, because it are you saying that what's the normal code? So if you come from your to your backyard to your your seawall water, are you saying this would if we made this change, they're looking to be able to deck that entire thing?

I can't speak to what the intent is of the persons, but yes, that is what people are suggesting.

Okay. So I think I remember this, Mr. Chairman, that if there's a space between the impervious boards that would make it impervious to some degree. My concern with it is what's underneath the deck. So once they build these decks, who's going under there to see what's happening? Nobody. So I mean, is there going to be some kind of a drainage field? How do you know it's going to actually drain? How do you know it's not just going to retain water? And then what happens when it retains water and you get another storm and it goes over to somebody's lot? I think I read in there that when the planning board did this, I don't think I was here. I hope I wasn't here, but I don't remember it. When you did the artificial turf, there's a whole thing you have to do because you have artificial turf to make sure that that water doesn't retain and doesn't accumulate and doesn't spill over. Is that correct?

Yeah, you have to have an underground drain system for that water to collect and leave the property.

Okay. All right. That's my question. I just want to see.

Yeah, yeah, yeah. Sorry. I mean, I could blab on for a while about this. I've got a few things to sort of throw in.

Just so I can add, Jason, when he wasn't on the planning board, brought forward the pervious paver concept and actually did demonstrations with a bucket of water and showed exactly how water penetrates and goes through the pervious pavers. So that was pretty neat.

Wasn't that what you were doing after our last meeting, Stan?

Yeah, those papers are actually even better, and they look a lot nicer. They're way more, they allow a lot more water to go through, and they, you know. Yeah, they're pretty cool. All right, so there's a couple of things, like from reading through this, there's a couple things that I would just like to sort of raise the question about, and if it goes somewhere, great. If it doesn't go somewhere, then so be it. I think one thing is, like our impervious definitions in our code, I mean, to me, it seems like if those definitions were consistent, that might be helpful. Because if you look in one section of the code and it says this, and one section of the code doesn't say that. So that's one thing, just sort of broadly. If we want to discuss that, fantastic. Do we try and make those definitions more consistent throughout the code? The other issue, I'll talk about it sort of broadly and then specifically about the docs. I've had to argue in the past when a government entity has argued with licensed professionals. It's sort of a real fine line, right? So we've got a letter in our packet from an engineer stating, in this gentleman's professional opinion, this deck system would be pervious. I so I'm gonna I'm gonna walk a fine line right like we have to acknowledge that the gentleman's a licensed engineer we can also possibly opine I mean I could opine that I I don't know if I agree with him I did talk to another engineer that I've known for a long time and he's not sure he would agree with him either but but I guess what I would say is if we are going to have a discussion about things that we beyond grass and mulch and things that we know are pervious if a contractor or a homeowner or developer wants to come forward and call something pervious or permeable or something to those degrees there should be a process the city has again not subjective there should be a process the city has to say okay you're saying this is pervious you need to give us some data and the data has to advocate for that. And so what would that process look like? And maybe we're going down the rabbit hole, I know, but you know, same thing with pervious pavers or specifically with this dock issue, right? Like if you have an engineer that just writes a letter and says, you know, docks with a quarter inch or pervious, I don't know. I would almost say, listen, you need to have a detail. You need to have some math that says, listen, for, you know, a half inch of rain or an inch of rain, like this is how much this system is going to retain. And the dock has to be built this way. The sub base underneath it has to be built this way. And it all has to be done. And then it has to be put on somebody, right? Because, again, I mean, I don't know. I don't personally think that dock boards are particularly pervious, but I'm not an engineer, and you've got an engineer with a letter. So how do you make the process work better, right?

We have one. It's a variance. We haven't had any variances to the pervious-impervious, but that might be the option.

But do you think that there would be a, do you think it would be beneficial if there was a way that citizens and staff, beyond variances, had a way to define something as pervious and impervious. Even with pervious papers, I mean, there is not, as far as I can tell, there is not a hard and fast rule in our code that if someone wants to use pervious papers, again, it's a little more subjective. You look at it, you look at the engineering detail, and you say, oh yeah, we've got 100 square foot patio. We're going to give you 20% credit. We're going to give you 30% credit. We're going to give you 50% credit. subjective, right? Or is it not?

Well, I would say engineering studies is going to be the hard and true method.

And if you remember the engineered studies, the way the code reads, the exceptions, there is an engineered study that was involved. Again, I believe When you were on the planning board, you actually brought in and did an experiment on how it actually works that actually helped out us moving that forward. Just talking about it is not going to get anything done. Actually, the proof is in the pudding with an engineered study on how that's going to work or demonstration on how that was going to work would probably be the best way to address this.

And then to follow up on what you're saying the pervious pavers in our code also have specific maintenance you have to maintain That pervious nature right and give you guys reports and right if you remember when we were doing I'm trying to think of the shopping center we were

Well, we've done it a few times. We did it a couple times, yeah. We've done it at Publix. We did it for the auto condos over there. Auto condos.

We had a maintenance plan that they had to follow. Because what happens is dirt infiltrates whatever's considered pervious. And I've looked it up, too, even in these situations when you start talking about gravel. A lot of them are impervious until dirt gets involved, and the next thing you know, now it's impervious. I'm getting mixed up. Now it's impervious. After time, it becomes an impervious surface. So that maintenance schedule is very important.

Annette, you've been patiently waiting.

Oh, no, it's no big deal. I think, though, that one of the things that's pretty basic that you mentioned first was the consistency of the definitions. And so I think it would be appropriate to ask staff to, similar to the last issue, to bring forward to us some consistent definitions. That's a pretty basic step.

And just so you know, there's a definition in 5266, a definition in 18-63, a definition in 18-211. There's not one in our land development code. So usually what happens is when I do an interpretation of any kind, once I read the language, I look for that section's definition, which doesn't have one. So now I'm kind of veering off course to stormwater's definition or environmental's definition, which has two different ones. So it might be important to think about putting a definition together. And we're just here to take notes.

Just piggybacking on that and Nanette's point, looking at the three definitions we have, and I'm no expert on this, but the definition in 18.211 seems to be the most precise, perhaps, in that the other two definitions I mean, 1863 says means constructed surface. It kind of just lists examples as a definition. And 18 or section 5266 means any surfaces that do not allow penetration of water and then goes on to list some examples. 18211 says means land surfaces that do not allow or minimally allow the penetration of water. It seems to me there might be merit in taking 211 and applying that to the other definitions. And maybe to your point, Dan, would it be helpful to construct a definition for the land development code, chapter 32, that could be this 18.211 definition?

Is that what you're saying? Our planner to Josh, he uses tool 18-211 when he does. That's the definition he uses. Because that was the closest thing he thought would be applicable for when we do – because Josh ultimately is the one that does the review on most of these decks, single-family homes, and that's the definition he does use. If we need to tweak this definition, that would probably – and put that in Section 30, that would probably be great.

So, yeah, my two cents would be take the 18 to 11 definition and – replace the 1863 52-66 definitions with the 18 to 11 definition and then explicitly take that 18 to 11 definition and define it in chapter 30 as well.

That would be great. And could we make a motion to recommend that to you but then also because sometimes we have a conversation about 18 and 52 sort of being out of the purview of the planning board could we make a recommendation to council to suggest that they do that to provide consistency with the definitions? I mean, there's two parts of this, right?

Absolutely. So the same thing across the board.

So I would make a motion that staff produce suggested changes that reflect the application of 18.211 to the other areas of the code and explicitly include that definition in Chapter 30.

Second.

Are you okay with that? Yeah, we'll do the motion in a second, and then we usually have public comment. I got you, Dwayne.

I'm not understanding what all of these rules are.

You've got to come up here and speak, though. If you want to come up here and speak, that's fine.

I'm not understanding our copy of the rules of the ordinances that you guys are passing back and forth. All right, just state your name for the record, sorry. Dwayne Thomas. I'm not understanding the two differences of the rules that you're passing back and forth that you're reconsidering. Can you read them to us?

they're in the agenda I think we probably have packets as you come in the front door perhaps but they were they were they were hyperlinked I apologize so yeah so I can I can read them whether they're in the code we're not taking any action today sir so you'll have an opportunity to see the ordinance when it's drafted anyone else All right. So we've talked about that. So we've got that item. So why don't we go ahead and vote on that if that's okay. So, Daisy, would you call the roll on that, please?

Vice Chair DeVos? Yes. Member Finkel? Yes. Member Henson? Yes. Member Jensen? Yes. Chair Bailey?

Yes. All right. So thank you for helping to keep us on track, Annette. Do we want to have additional conversations about you know, pervious and impervious as it relates to the letter from this engineer?

MR. Not really. MS. Someone's opinion, and no offense to attorneys, but it's like a legal opinion. It's an opinion. And so we take that into consideration, but I don't know that I would have anything else to say.

MR. OK. Well, it seems like the consensus of the board is that we don't have much else to say about this. So I do still like the thought of sort of having more of a process in place for things like this. But I'm certainly not going to jump over a cliff for it.

We've got to start. I mean, we're making some progress and baby steps and maybe there'll be a point that we can continue the process and do what you're asking for and come up with something a little more, excuse the expression, concrete.

Yeah, absolutely.

Impervious.

Sorry.

Okay, all right. Well then, let's go ahead and move on to the third discussion item then, please. This was one of the suggestions I think you had made, Hayden, was we've already had citizen comment.

I didn't get a chance to comment on anything. I was just asking a question, but I didn't get a comment. May I comment, please? Thank you. Duane Thomas. The letter that was given to you also explains explicitly this is basically a French drain that's in your seawall. You lay down a layer of filter cloth, and basically you put four inches of 57 stone on top of it. So it really works like a French drain in your backyard. Furthermore, in your backyards, we're all worrying about water quality here in Michael Island. By allowing this, you will solve a water quality problem on Michael Island. We're not going to be fertilizing the grass in the back lawns. We're going to be having a French drain on our entire back lawn.

May I put a picture up, please?

These are all present docks and decks that are allowed in our system now. This meets the criteria. Underneath that deck is an entire French drain.

It solves two problems. No fertilizer in the backyard. Here's another legal one here.

No fertilizer in the backyard that's running out the weep holes and getting into our canals. We're all worried about water quality. This solves part of that problem. All of this that I'm showing you now, we can do under our present code. These are all legal docs. The only thing that I'm trying to get changed is the impervious calculation from the 67%. The houses are so big now, and everything takes up so much space, that some people don't have the calculations that they can do this. This solves a problem, and it solves a pollution problem. Also, in the Florida-friendly guidelines that we have, and we don't practice, we're not allowed to have sod within 10 feet of the seawall. We're not practicing that. That's an applauded friendly landscaping booklet. So again, this solves a lot of water quality issues too. Again, all of these we're doing now, the only thing I'm running into situations where some people, I can't meet the calculations so they can do their backyard. I can't do the entire thing. I can maybe only do 5% of it because of the impervious calculations, but all of these docs are legal now, and this is happening. This isn't something new. So basically what I'm trying to just recognize is to have the system that my engineer has designed and put forward recognized as a pervious system so we don't get into the calculations of building. When we get into building these decks, it comes into a 67% calculation. That's what I'm looking for. And again, water quality is a big issue here, and this is what we really need. We shouldn't be having grass and fertilizer in the backyard. Thank you very much.

Thank you. Okay. Based on that, does anybody else have anything to add to that? If not, we'll move on to the next item. I think, Hayden, this was something you had suggested. I think a couple of us have talked about in the past.

Yeah, and I'm actually trying to find, and maybe I'm just not seeing it in here, that could be me, the section of the code that deals with the formal petitioning of a code change process by an applicant. Does staff have that code?

I have in section 30-62 the amendment procedures. And you're talking about land development code changes, correct?

Correct.

And then I also have section 30-8 with fees. And then I actually have the resolution for land development code fees, which it shows, I think on page 3 I have it in red, in $2,000.00.

Which one was that amendment to the land development code Isn't there somewhere where it specifically mentions who can do it right?

Yeah, it's right in a 30-62 a

Okay. It can be city council, planning board. Planning board, any affected property owner, and it could be an authorized agent or attorney as long as they have to own the property is the last item on there.

Right. So my suggestion in bringing this up was there have been a number of property owners since I've been on the board who have gone through the process of working with an attorney to draft a code change. They pay the application fee, and it gets put on our agenda, and we consider that code change. And then there are other instances in which individuals either raise ideas before us or, more commonly, raise ideas for city council. Those get conveyed to staff, and then staff raises them on our agenda. That seems to me to create kind of two processes, one by individuals who are formally applying for code change and paying a $2,000 fee as an amendment to the land development code, and one where individuals can just, not that there's anything wrong with this, call up a counselor and say, hey, you guys should consider this. I would feel very strongly about it, and then it gets put on our agenda anyway. My suggestion is if that's happening, then Does it make moot the existing process of charging people $2,000 in addition to whatever they're paying an attorney to construct a change to our codes? Because again, it seems odd to me that we would have some people, and I've seen it happen since I've been on here, go through this process, which is fairly rigorous, of an application, of code rewrite, of paying the fees. And they have to do that. And then in other instances, it just bypasses that process completely. So if we're going to bypass the process, then why are we charging some people a fee? It strikes me as unusual. suggestion would be we just get rid of that since it's it's not utilized a ton and there's always going to be ways for individuals to convey their feelings to the planning board whether that's directly through a public comment on an agenda item or via city council or via city staff why do we need a separate process i mean if we have a separate process we should follow it all the time but we don't so that's my two cents yep brad

I agree with Hayden. My question, David, is to you. I mean, obviously, the code says that the city council can direct it, the planning board can direct it, or any individual who owns the property can direct it, so they're allowed to do it. The bigger question I have is, what's the two grand for? That's our notice and administrative time Okay, and the other thing is when you do an amended when you change the code or you amend the code you're gonna change it It's not just limited to the district you're looking at when you're looking at a true amendment to the LDC to our comprehensive plan to our Zoning code you got to look at it in terms of the neighboring zone the other zones You're changing the use in one zone doesn't necessarily mean you don't have to look as a planner at the impact and scope for the entire City Isn't that true?

Well, we do look at the entire city when we make these changes because we have a pyramidal zoning for, let's say, for commercial. If we allow something in C3, it's also allowed in C5.

Right. See, and that's what I'm trying to get to. So I understand the $2,000, that's actually probably a fairly cheap date for an amended entire zone. That's a real cheap date. My other concern is, does council know that, and that when they give these assignments to the planning board, you know, basically for free, and if it is going to be for free, as Hayden suggested, do you anticipate having a floodgate of change in zoning requests? Because we don't have use variances here in Marco Island, unfortunately. I mean, we certainly get around it with the use variance, but we don't have that mechanism, do we? No. So this is going to turn into basically a use variance procedure, the way I see it, if they can come in and do that, at no fee, at no cost.

And my point would be, I totally hear you. They're already doing it, which is not a problem. It's already happening. So if it's already happening... It seems to be an inconsistent application if we're charging some people and saying it's a burden on staff's time, so we're going to charge you, but then other folks are able to do it, not pay a fee, and it's taking up just as much staff resources. Or more. Or more, because it could be more complex.

Actually, it's more, and I'll tell you the reason why is because they don't go through the application process. I'm doing the application.

You're drafting it from scratch.

I'm the one that's drafting all the reasons why this individual person wants it, and I really don't know their business plan, so I'm just throwing it out there based on... where I sit, not where the person who's asking for it sits. So most of the time, I don't even know why they're even asking for it. And I'm bringing things forward to the planning board and city council, and I have no idea why they're bringing it forward, unless they have a issue internally with their own business, or they have a code violation. If you remember, boat canopies. That was one person who had a code violation who didn't want to pay for it. That was it. I can't say it any differently. He didn't want to pay for the fine, and he didn't want to get rid of his boat canopy. So we went through roughly a year of city time to allow for it.

And this is the unfortunate unintended consequence of this is... I would strongly prefer more people go through the formal process that we have established and pay the fee now, but it's just not going to happen. Like, I don't see if anyone has a better idea to direct people and shepherd them through this process 100% of the time, I'm all for that, because I'd much prefer that than placing a greater burden on staff, than eliminating a fee, especially at a time when we're talking about revenue crunches. But it seems to me to be patently unfair that some people pay it and others don't. And that unfairness is striking me as a problem that I don't have a solution to other than, well, then we just need to get rid of the process that some people follow.

Could I let Nanette speak real quick, Mary?

I don't have anything to say because Dan said what I was going to say was about the concern of the floodgates opening, staff time. And as Dan pointed out, the example that I got to experience and went through with the boat canopy, that would be my concern.

Yeah. Sorry. Go for it, Mary.

Also in our LDC section 30-9 deals with amendments to the code and specifically only allows it four times a year. In the case of emergency, you can go beyond that, but it's only allowed four times a year. So that's something we need to take into consideration, and I just wholeheartedly agree and support with what Dan said. I mean, it's a lot of time.

That's an excellent point. If you're captive four times a year to actually amend a zoning area like that, it's a very serious thing. And I can't speak to what, there's some counselors here today, I can't speak to how they look at this, but when one person comes in and says, I'd like to change the zoning, and it really sounds like a use variance in another community, Maybe they say, well, maybe this is a specific thing you want, and it may not be the best thing for the entire zone or the city. And maybe they could say, we'll refer it to the planning board, and they'll look at it and see if it's a specific or a bigger scope project, and then maybe take guidance that way. But there needs to be a procedure. I agree with Hayden 100%. You know, some people are getting away with no money and some are paying the money. But from a city standpoint and a planning standpoint, you know, we need to be careful with that. And maybe the city council through, you know, consulting with Alan Gabriel can understand that process is not just a quick process when you're limited to four in a year in terms of amending it.

I just want to let you know there's two land development code changes I remember that I remember vividly because it was so positive on how the process worked. One of them was McDonald's. They needed a changeable or a digital board for their drive-through. Technology had changed over the last 20 years. They had a new way of providing a service. They saw these weren't allowed. They came in through the land development code change to allow for these digital sign boards. And it was so easy. Everything, the information they had, they had done their research. I brought it in front of the planning board and city council, and we probably, it was maybe two months tops for them to get their approval. The other one was the, how can I call them, car condos. It was something that had just kind of started about 15, 20 years ago. We didn't look at these condos at all in our land development code. We looked at it as warehousing and storage of some kind. uh... they're pretty neat uh... they're very good looking others there's hardly any impact on the neighboring community uh... we had a applicant come forward because he thought it would be something that would move forward i believe is about a year or two ago and since then he's It was an easy change. The planning board listened to it. He did all his research, went in front of city council. I believe it was unanimous. He's done one and possibly two. And just yesterday, I got an application to do one possibly in the Marco Lake area, which is an area that really needs redevelopment. And it's a neat-looking building. So these are things that I look positively on because I think these are the things we need to talk about. And because it goes through the application process, that person is actually doing the homework They're doing the research. They want to make sure the planning board's prepared with their information and the city council to make sure it moves forward. The other way, it's more or less, it's all over the map. And sometimes it takes a year and a half for this process to go through, if not through the application process.

And to provide another example of... confusion and not to pick on anyone in particular, but we recently kind of went through this with the proposals in relation to the sort of older buildings we have on the island and whether we were going to exempt buildings that were pre-incorporation for purposes of office space. And there was so much confusion versus had it gone through the code change process. So there is, I think, another way to do this. But I don't think anyone's going to like it, which is... I'll say it. Well, I'll say it, and you tell me if it's the same thing you're thinking of, which is when you get... It would be Dan when... People come to city council and city council say, oh, that's an interesting idea. Dan, can you look into that? It would be Dan or our city manager saying, the applicant needs to submit a code change request and we will look at it. And that be the response. Like, that's the other way to do this is just to say, no, staff is not going to take the time and prepare this, even though council wants us to. We are going to say, if you have a specific individual requesting a code change, they need to follow the process. That's the other way. I just don't think... that council would go along with that. Is that the same thing you were thinking of, or did you have a different? I actually have something different, and it's probably even worse.

So I would make a suggestion. We don't pick winners and losers, right? Council shouldn't pick winners and losers. And what's happening is, right, Mr. Palladino, you know, He got a code change, right? But at the end of the day, there was broad support for that. And he did not follow the process.

Which one is this?

Vote Canopy. Oh, yeah. So what if we lower the fee to $1,000? But what if we say, listen, a private individual is going to come forward. They're going to pay the $1,000. It's a cost of doing business. If someone comes forward and wants to make a code change, they're going to get petitions. And they're going to pay the fee, too. It's not free. That way, maybe you ensure that there are at least enough people who are willing to dance the dance with the person who comes forward and say, you know what? We could legitimately see this as something good for the island. How many boat canopies are there on the island now?

A lot.

More than 100. So you get 100 people together. They each ship in $10. and they go through the process. And we say, listen, we do that because we have to follow the process. We can't just have somebody who's, you know, there might be an exception to every rule, right? Like someone comes in and they've been adversely impacted by something and they want to change the code for that reason. But if somebody comes in and says, hey, I've got this great idea, let's do boat canopies, there's got to be 100 people that want to do boat canopies. Chip in $10, pay the $1,000, do the code change. And I don't know that that's unreasonable, is it? I mean, you can get 4,000 people to say they don't like shark fishing. Can't you get 100 people to say that we want boat canopies? And $10?

And I think in that circumstance...

But zero's not covering you now, right, Mary? I mean, if people are getting away with doing it for nothing, it's not covering you now. So, I mean, if you want to keep it at 2,000, keep it at 2,000, but just make it reasonable enough so that citizens have some skin in the game, but you don't want to make it such that the process is an insane process, right? You want it to be sort of here's where you start, here's where you go, here's where you end, and that's it. But there's some skin in the game instead of just... saying, hey, I want help with this because, I don't know.

I think that's an excellent, just to jump on the back of that point, if you've got 100 people, a lot of people want a change like that, right? And they get together and they start, they email council and say, we need to have you look at this zone, we need it changed, we want both canopies, right? You get a lot of emails. Council gets that, gets a lot of emails, a lot of concern, a lot of people coming out. They have the right, the council has the right under the code to order that investigation into that code change for no cost. Is that right, Dan? The city council doesn't pay the two grand.

That's correct. They give direction to the city manager, which gives direction to me.

Right. That's an excellent way to do it. It's a boat canopy thing with 100 people really wanting those boat canopies. Just email the council, get a mouthpiece, come in, and let the council make that decision because they can. Or we can, I think. Can the planning board actually do that as well under the code change? Do we have the authority to initiate that?

Well, you would have the authority to initiate that. The problem is if the city council really doesn't want it. It's not going to happen. When it gets to the city council. So usually that's why it's really important to go through the city council ahead of time. Right. If they're open to making those changes. And that's usually where I come in. If the planning board wants anything changed, that's something I can bring through to the city council and ask, kind of give a consensus that they thought this was a really good idea.

I mean, go back to Hayden's point. One person, you know, that's a problem. You know, one person wants a change, and then another person pays, one person doesn't pay. But when you get an overwhelming group of people saying, we need to change this, and I think it's an important thing, then I can see the council ordering that because there's so many people involved in wanting it.

Well, the other thing that it does, in theory... is it reduces the burden on council, planning board, staff, everything. Think about how many meetings, how many people got up and spoke about, and I hate to keep beating the dead horse of boat canopies, but think about how much time that took, how much staff time that took before it even went to the point of like, hey, maybe we should actually start crafting an ordinance. Think about how many multiples of $1,000 that had to cost the people at that table and that table right there before it even went anywhere. So you know what?

Yeah, but to your point, Jason, that was because of one individual who didn't want to pay the cost.

Well, but there are other situations where people do want to legitimately change the code, and again, I would say, listen, they could reach out to their friends and say, hey, I think we should do this, and And you get 100 people that say, you know what, I agree with you. Or you get 20 people, and those 20 people put up $50. Or you get five guys that put up $200. And it's all relative, right? Five people come forward and say, here's the $1,000 for the petition. We're not going to spend three meetings of time, 45 minutes each meeting, all this stuff going back and forth, five bajillion emails. We're hopefully trying to make things a little more efficient by creating the necessity for paying the fee and filling out the application.

MR. So, Jason, how would you – from just a practical and logistical standpoint, how would you prevent the instances of – and maybe I'm just not understanding – of individuals doing what they've been doing and going to counsel saying, we want this to be done, and counsel saying, that's a great idea? Casey, can you have Dan look into this and give some ideas to the planning board? How do you prevent that?

It's like your kid asking you if they can stay out late on Friday night. You've just got to say no.

But who's got to say no? The city council. Well, no, but the city council is the one requesting it. So if it gets through the city council, which is under lack of a better word, they're under political pressure to be responsive to their constituents, then the no has to come from city staff in the form of a reminder, you know, by either you or Dr. Lucius saying, listen, counselors, we appreciate your eagerness to look into this. But we would encourage you to direct the individual who brought this to your attention to the process we have established and the fees. Or group. Or the group, right. And do it that way. I mean, that's the other way to do this. And I would prefer to do that, but I realize what that's basically asking Dan to do is tell his boss's boss what to do. That's the problem I have.

And to some degree, we have to have faith that Marco Island is full of reasonable people. And although there are some unreasonable people, most of us are reasonable. And if you frame it in a way that, listen, we try to treat everybody the same way. We don't want to give you a special benefit. We don't want to give this person a special benefit. We really try to do this for the benefit of everybody. And hopefully, after having a few moments to breathe and reflect on that, they'll say, you know what? You're right.

Well, so then I guess my question to Dan would be, not to put you on the spot, but in those city council meetings where you're getting those ideas because someone or a group of individuals has brought something forth, would you be comfortable reminding council, like, hey, guys, we got a process. Whether it's one individual or a group of individuals, they got to go through the process. And we're not going to just – I'm not going to just try to draft a code based on what I think is in someone's mind and waste my department's time in doing that. So, Counselor so-and-so, I would strongly say you go back to the individual who – or group that requested this and encourage them to follow the process.

Well, I always encourage everybody, even the city council and staff, even our own staff and the public, that we follow the law, the code. And right now the law allows these four, the city council, the planning board, the city manager, and any person. As long as that... Those four things are in the code. It's allowed. But would there be a better way for it to go through? Yes. But that's really up to the leadership to make that decision. But I think they've heard you loud and clear. If you remember, we spent three years on staging lots. I had not one application for that, but we spent three years on that. That was a nightmare. I had all kinds of people email me one way or the other, especially the people who lived next door to some of these staging lots. And for me to try to make a recommendation to move forward with allowing them as long as they were, it was really tough, especially when you hear some of these heartbroken people who live next door to them. But there was no application. It was hearsay innuendo. I had to listen to a bunch of people, and that lasted three years. So just imagine that time. And things are going to change pretty soon, because if taxes, Edward Worm taxes are removed, I'm going to start having to charge fees for what it actually cost me to do the work here.

I was just going to say, to that point, I can't imagine that you would consider recommending lessening the fee, because I'm sure the $2,000 does not cover the staff costs at this point, let alone whatever's coming down the pike in the future.

You're probably going to find out an attorney or a planner is going to charge probably $10,000 to $15,000 to bring that application forward.

Wow. I agree with Nanette.

I mean, another way we could do this, honestly, is we could be more vigilant. And we could, when we see, and I've probably raised them until I'm red in the face, but when we see instances where this has been happening where someone or a few people Find a counselor who's sympathetic to a position and then it gets raised in a council meeting and then Dan has to guess What that person may want to see in a code change and it comes before us and it's a whole mess We could just say enough. No, we're not gonna do this So and so you need to submit a formal application and pay the fee and that's the solution that could be the solution is we just need to be more vigilant and I don't know if that's the right way to do it. But I'm just very frustrated by the sort of two sets of rules we have. Two pathways to do the same thing, and some people go through a painstaking process and others don't, and it's purely based on candidly political connection and pressure applied at the level of council and then filtered down to staff. And the irony is, as you said, Dan, it results in more, I don't want to use the word sloppy, but more guesswork on your part, more frustration in the drafting because you're shooting blind rather than someone coming in with something that they've given contemplation to. So maybe the solution is we just need to, those of us up here just need to be more vigilant about saying no to things that come before us, even if it's in the form of a council directive that haven't gone through the process. And that might be an unpopular position, but.

I agree with that and you know it comes down to a process of you know how does council handle it and there's a some counselors here today they're out there how do they handle someone coming in one person wanting a change in the in the zoning code because they can't get a use variance I would think, since you can only amend it four times a year, council should be looking for like a mandate situation. They really have a lot of people. There's a big concern. It's a safety concern. It's some of the use concern. We've had all kind of uses pop up here on Marco Island that had to be considered in a a global way. So I think really, and that would be up to the council and their chairman, how to handle that, like more of a mandate situation where they say, OK, we need to look at this. Instead of what's happening and what Hayden has pointed out, one person comes up and says, I want to change the code because it's going to help me do A, B, and C. And then he doesn't pay. So, I mean, I'm not going to tell counsel what to do. That's for them to decide with their attorney. But I would think the attorney would caution them to say, you know, that's a mandate situation or something we see, right, as a mandate situation. And then the other stuff that comes up, I mean, I could just hear a mayor saying, what do you want to do? You're the only one that's brought it up. Okay, I'm not going to order staff to go do this analysis because you're the only one that's brought this issue up. But the other side of that is a lot of people bring it up, then it's something that I think the council should direct or the planning board should direct. So it's the scope of it that's bothering me. I don't really think the code is the problem. I think the application of the code and how it's being done is really the issue that they need to look at.

And the mandate, Nate, like it is not only a mandate, it's an unfunded mandate. There you go.

And that's...

In the dark cloud that is looming over us about revenues, I would only underscore that point.

That's all I have.

Clear as mud? Yep. That was fun.

Well, it was worthwhile, all of them. Yes?

Yeah, I think you put your name in. Is that correct, if you want to get up and speak real quick?

Thank you for having this discussion Zack Lombardo 606 Baldy will drive and I agree with how it the discussion and I think which is that I don't think there's a code change that can happen here that works because I wanted to kind of back up a little bit this the code is inside the land development code but if we look at Florida statute and we look at chapter 166 you can remove this code City Council can still enact ordinances right so it's it's not Something that is that easy to use and I wanted to bring forward another example that would help talk this through a little bit the City Council directed Beach and Coast Beach and Coastal to go look at the kiosk and the chairs on the beach that came from a City Council person and It's not the land development code, but the case law in the state, like Lee County versus Lippy, for example, holds that if it's regulating land uses, it is a land development regulation. And so it didn't come to you all, because it's not in the land development code, but it was this process. Council sent something back down to go be looked at. There were three meetings that were extremely long, I mean, I think a really good ordinance came out of that process, but my understanding of where that started was not this broad-based mandate thing. And so my suggestion... What was that, sir?

It didn't start because of city staff. I mean, there were some issues on the beach, and city staff was saying, like, how do we enforce this stuff? There's stuff all over the beach.

That was a discussion between myself and city council that started that forward.

Sure, but that's city council initiating the amendment is what I'm saying. My point is that I'm just underscoring this idea of the code shouldn't be changed because the council has to be able to originate this sort of stuff, and I think they can do it even if you do change the code. I think what's important is what you were all discussing, which I think city council has to be just extremely mindful of what this means. Because in that one, for example, that was a huge amount of staff time. That was three hour meetings. Before it came back to council, there was nine hours spent in a public setting, and I don't know how many hours you all spent in the background drafting that. No application, no fee, nothing. So I do think it makes sense, the direction that you were giving, which is they should be reminded the what this looks like and if there can be people that can come together and file the application I agree that they should I just I was staying and listening because I wasn't sure if you were gonna push for removing this and the language and I just think that practically I don't know how you how you do that but I do I would actually encourage that you allow for a private amendment process for the balance of the ordinances because, for example, there is no way to file as a private citizen for the beaches and coastal issue. So to really underscore that example, the beach vendors who I represented in that situation, they did not ask me to come here and comment on this, but another way that could have gone is they could have filed an amendment, the changes, and that was discussed and we had a pre-app meeting. But as pointed out, that was not in the land development code. So could, you know, would I have stood here and argued that anyway? Probably. But the, because Lee County versus Lippy land development regulations. But regardless, the point is, if you want people to do this on the private side, I think you actually sort of counterfactually here should consider moving this into the code of ordinances generally. then it coming with this clear direction that council needs to just be very mindful that you have a small planning department compared to the size of the city and the volume of applications and obviously time is is expensive and so I just wanted to put that out there that I think that I agree with everything not that it matters what I think but I agree that the that this is what there is real time here and there are inconsistencies here sometimes things though are they really only affect one parcel and sometimes they are bigger island wide issues but in almost all circumstances there's someone who can usually pay a filing fee so I don't think that's I don't think that's really a concern here I would just suggest that Maybe there would be a process even beyond the land development code and that council should very strongly consider the budgetary impacts of this because beyond budget, I think it's a massive confusion issue. And I would agree certainly on the one that I was most recently in front of you on. It was a massive confusion issue and it didn't need to be that way. So that's my three minutes. I thank you very much for your consideration.

Thank you.

Can I ask a second question?

Sure, sure, sure. Zach? You cite that case again. You were talking about land development regulation and land development.

Yeah, Lee County versus Lippy.

I've reviewed that. And so we do have a lot of things that are not in the land development code. One of them, seawalls, out of the land development code. But if it's a land development regulation, it's within the jurisdiction of the planning board according to that case. Is that correct?

That's essentially what it's saying.

That's what I thought. I'm not a Florida lawyer, but I did a little bit of zoning and planning in my career. So basically the way I've explained it to people, you can take a pig from the pig pen, stick them in the sheep pen. It's not going to make them a sheep. It's still going to be within our jurisdiction, right?

For not being a true southerner, that was a wildly southern analogy.

I am a true southerner from Georgia, raised pigs, sheep, cows, dug in the dirt, my whole family before we became professionals.

I would agree as a fellow member of the guild, as a lawyer, that it doesn't matter where you put it. It is what it is.

If it touches land development, it's within our jurisdiction.

There's some standards put forward in that case about what is a land development regulation. Because at the state level, and this is an unfortunate reality for local governments, is that there's not enough standardization across the 460-something of all of you that do this, other than Chapter 163. Chapter 163 is very clear about what a land development regulation is. There's a definition section. It has sub-definitions. It's very lawyer-friendly. But oftentimes local government codes don't exactly line up with that, and there is a lot of litigation in this space.

Okay. Thank you. That's all I have. Thank you.

Worthwhile discussion. Yes.

And that brings up an interesting point, and I don't know if – Is there any merit to the suggestion that some of the stuff that's in our land development code now should be moved to somewhere else in our code of ordinances so that it applies to chapter 18, chapter 54, chapter 52, chapter I don't know the answer to that question, so I'm just asking it.

If I may, usually what happens, and this is what I'm accustomed to, is the code changes, certain code changes, when it gets to the city council, the city council will direct them to the appropriate committee or the planning board for the review just to do a review. So they have a comprehensive review for them so they can get a recommendation by the time it gets to the city council. For instance, boat canopies – or not boat canopies.

Beach kiosks?

Yes. That was directed toward the Beach and Coastal Committee because they thought they were probably the best – group because it really had to do with the beaches and these structures were temporary structures. They were just something you bring in on a skid and you can easily pull them off. So I didn't think the planning board necessarily needed to have that much input on it. But there's other sections that are in the code of ordinances that the city council has directed me to have the planning board look at. Even though it really doesn't go in front of them, that's kind of what you're here for. So we've We've done it all over the map, which is good. My concern is just to make sure that we follow the same process with everybody so everybody feels like they get a fair shake when they're brought forward for a change of any kind. And the ones that go through the application process are so much easier to review because, again, they've done their research. I know why they're doing what they're doing. They have all the backup. They spent a lot of time on it, to be honest with you, before they've brought it to the city council or city staff. So we don't have to figure out what they're trying to do.

Makes your job a whole lot easier.

It makes my job a whole lot easier.

And hey, if we can get some revenue in the process.

Absolutely.

We'll take it. OK. Well, so anything else on that? All right. So we'll move on. Board communications, anything?

Yeah, I have an issue I want to raise that has just been on my mind for a little while now. It's a bit of a personal one, but I think it applies to all of us. So we had a reminder at the last meeting from our city clerk with respect to attendance policies for boards and commissions. And the interpretation is if you hit the, I think it's a 30% of meetings missed threshold, your seat is effectively vacant. For us, we have 12 meetings a year. So if you miss more than two, it's a vacancy was the interpretation.

I think I thought if you missed more than three. Three, yes.

In a rolling. It's a rolling 12 months?

In a rolling 12 months, I'm 99% sure it is if you miss more than two. I could be wrong on that, but I'm fairly certain. Putting that aside for a minute, there's a disparate nature with which the planning board has unfortunately been pigeonholed in because all of our meetings are quasi-judicial in nature, effectively. And the city's remote attendance policies do not allow remote attendance for a quasi-judicial matter. What that means is every other advisory board member on every other advisory board can attend a meeting remotely and have it count towards their attendance requirements. It means city council can attend a meeting remotely, as we've seen city councilors do, and it counts towards their attendance requirements. But it means the planning board is the only board in this day and age where we can't do that because of the one line in a resolution that says the meeting if it's quasi-digital in nature you can't remote in. I'll just say from a personal perspective as someone who I'm a working professional it is A challenge enough sometimes for me to carve out time. I love it for these meetings in the middle of a work day, especially when we have had, as we have had over the last several meetings, lengthy agenda items, lengthy discussions. One dragged on until like 2 or 3 in the afternoon. I'm sure we can all remember. I've got work looking at me like, what are you doing? That in and of itself is a challenge, not to mention the idea in the back of my mind of, are there working class folk who just can't get time off from work to attend our meetings? Put that aside. I travel a lot for work. I'm up in DC often. I've literally had to. postpone or cancel meetings at the White House because I've said now I have a planning board that meeting that day I can't go and if I miss too many I'm gonna be off the planning board it's incredibly frustrating so I did some research on this and a number of other municipalities and localities do allow their plant their advisory boards even planning boards to have quasi judicial meetings and allow remote attendance for those meetings I am inclined to personally send a letter, email to council encouraging that. But I would also like to get the perspective of other board members just to see, is this a feeling I alone share? Is it a feeling that's shared by other members that I think if Collier County can do it, which their planning commission has remote meetings and they just do quasi-judicial matters remotely. City of Naples has a provision for that. A number of other localities throughout the state have that. If all of them in this day and age of Zoom and teleconferencing can do that, and if every other advisory board and the city of council on Markle Island can do that, then it seems like we're really pigeonholed, and I would like to see that change. So I just put that out there.

Brad, go ahead and chime in first.

Okay. I agree with Hayden. I think it would be an option, if we could have it, to have the ability to participate if David says we can do that by video in a quasi-judicial setting. We may have a situation where we need a quorum. We need to get something done. And other cities and municipalities are doing that. I'd also point out, Hayden, that in our, and I know you guys don't like it when I refer to our little handbook. But in our actual rules that were promulgated in 2014, if you go to section 3-304 regarding attendance, there seems to be, there was consideration of exactly what Hayden's talking about. Quasi-judicial, we're on a timeframe, we gotta get things done. And planning board could miss five meetings in a calendar year. Five. And other advisory people, three meetings. Now, I did email Joan about this issue. I certainly believe it should be the five. But there's some confusion in what some city manager may have done at some other point in time. And then we end up with this rolling thing, 12-month thing. So from my point of view, I agree with everything you're saying. And I really think that they should at least revisit Section 3-304 and at least give us five if we have a 12-month period. We're working January to December. We really don't get a down time, so to speak. We're busy. So I think that five meetings is fair, that you could mess up the five meetings in that period of time. And I think that would solve a lot of problems. And I wish they would just... Stick to the book where it says 3-304 attendance and says that. It's in our actual rules that have not been amended that I'm aware of. Was it you that chimed in or David?

Me.

David Tolstice, Assistant City Attorney. So my first comment is that you can't compare yourself to City Council with respect to attendance because they don't necessarily have attendance requirements and they can't be removed from office just because they missed meetings. There's a whole recall process. So we can put City Council aside. With respect to remote participation, I mean, prior to COVID, remote participation by individuals on municipal or county boards was only utilized in emergency situations. You basically, and there's some attorney general opinions out there regarding it. that you basically had to have some type of sudden medical emergency or some type of emergency travel plan that would allow you to not be at a meeting and to participate remotely. And prior to COVID, that remote participation was mainly by telephone because we didn't have Zoom. So things changed in COVID where the governor specifically issued an emergency order to allow for meetings to be held via Zoom. And so it's kind of expanded a bit as far as the ability to participate remotely. And boards, city councils, planning boards, have gotten used to being able to participate remotely without having to make that request due to some type of emergency. And I don't know of any pushback that's come from anywhere with respect to that in light of the prior Attorney General opinions. I think everybody's pretty comfortable these days with folks participating remotely. But certainly that would be a city council policy decision to make with respect to your ability to participate remotely. Certainly, from my perspective, I always like to see you guys here in person. I always feel you get a better feel for the witnesses, the individuals who are coming to testify. And then, as you saw this morning, we did have a brief breakdown in the technology. And so you're always risking that as well. So I just provide those comments for some context.

Yeah, thank you. Thank you, David. You're welcome. Yeah, and I totally agree with what Brad said, and I think irrespective of the remote change, we ought to look back at that five attendance policy because I've seen that too, but then it's not replicated in the letters we get about reminders of attendance. And so what is the rule here for us? It's very murky. City Council passed a resolution during COVID, and I'm just going to read briefly from a section. It's Resolution 20-2021. And it says the city council hereby allows the participation in any public meeting via telephone, video conference, or other CMT, which is communications media technology, to the extent the city has the ability to establish and approve appearance by such CMT by city council members or any appointed city board or committee members at all public meetings of the Marco Island City Council or at any of the city's appointed board or committee meetings. Due to the evidentiary nature of quasi-judicial meetings, City declared quasi-judicial matter shall not be held for the use of CMT. It's really that line that's the issue. Now, the way Collier County Planning Commission has dealt with it is they require a majority of board members to be physically present so that there's at least an in-person majority.

And that's, sorry to interrupt, and that's required under Florida Sunshine Law? Yes, right. You still have to have a physical quorum president?

So that's, that, I get it. Like, that totally makes sense. But what, you know, and David, you gave some illustrations to sort of the pre-COVID era. We're in the post-COVID era now, and we have new technology. Things have changed. It, you know, I'm glad, I'm thrilled I'm going to be able to be here for the, you know, conversation about the Rosemarina, I'm upset I'm going to miss the rezoning one. I don't know what Mike and Jeff's schedules are. We just scheduled a meeting without their benefit of knowing their schedules. I'd hate that they would have to miss a meeting. I personally think both of these issues, the remote participation issue for planning board that I think unfairly squeezes us out and the question of the attendance threshold that Brad has raised are both issues that I feel council ought to look into.

I'll chime in on it. Specifically, I like having you here, Hayden. I like having you on the board in general. The first thing that sort of came to my mind is, who are the citizens of Marco Island that cannot participate on this board because they are not here enough? I mean, are there seven people that are better than the seven people that are here now? I mean, it's entirely possible, right? And maybe they don't serve on the planning board. Maybe they don't put their name in the hat because they're like, you know what, I know that I'm gone a few months every year. I guess you'd have to look at do the pros outweigh the cons. I do like, to David's point, being able to sit here and be in person and just sort of feel the vibe of the room and get everybody's sense and all that. But I mean, I certainly wouldn't be opposed if you sent an email to council sort of putting your concerns out there. I'm not opposed to it. And again, just for the benefit of this board going forward, could this board be a better board if that was allowed? I certainly wouldn't want it to be a worse board. If it could be better.

I'd rather have seven people here if one or two are remote in the summer than have only four or five in person. That's one way I look at it. And another thing, which is a question, David, When counsel is hearing quasi-judicial matters that we've passed along to them, and they, let's say, have a member participating remotely, how does their member participating remotely deal with that? Can they vote? They can't.

I think they can vote. Yeah. I think they're able to, you know, I believe there may be a motion made to authorize their participation, or if not, they are typically allowed to participate and vote.

Yeah, see, I thought they could participate but not vote, but I could be wrong on that.

That's what I thought, Jason, and I didn't think they could vote. I think if they're electronic, I don't think they can vote. And I've only seen a couple of meetings where that even occurred, and that was because Eric was sick.

I just pulled up the quasi-judicial procedures.

It's certainly a rarity, but there are instances where I know that's happened. I haven't had the chance to go back and look. But my point being, if council members can remote in and deliberate on and potentially vote on the same quasi-judicial matters that we don't have the ability to remote in on, what's the difference? That strikes me as unusual.

I don't know if there's any action needed by this board necessarily.

I'll send something. The only thing I was going to suggest is if other people feel this way, if there was a consensus, we maybe wanted to ask Dan if he wanted to mention it at a city council meeting under an update. If it's just better me sending an email, I can just send an email, if that's easier.

And I'm not opposed to either way. Brad, your thoughts on it?

I think I'm in favor of it, certainly, that the council look at it. And so investigate. Can we participate via video? Can we vote in a quasi-judicial hearing? And if so, then the council will consider a couple other things. How many times can you appear by video? as a member. Is it unlimited? Can you be on a cruise ship around the world? I don't know. They'll have to consider those issues. But I would also suggest that they look at the purpose behind the 2014 five absences for the planning board specific. And that has to do with the level of work we have and that it's year round. So I think they should just, I would hope they would look at it and reinstitute it and give us those five days so we wouldn't have to run into automatically losing an appointed member before the next meeting.

So that's, I would agree with both those. I think we need clarity on that because And as you said, like reinstituted, has it even been removed? Like, I don't, it's murky.

It's debatable, but I think what David is going to say and what Alan Gabriel will probably say, since I've watched him say it a million times, it's in the preference of the council to do what they want to do. So they can look at the section and say, yes, we want that to apply to the planning board. Tell us what to do, David, you know, and then that'll end that debate. and we'll get the five days for the calendar year, which I think is extremely important for us. The other side of it is the video part. I think we should say to the extent it's legal and to investigate it, and then they can tell us how many we can actually chime in for remotely if that's a concern of theirs. We just not ever be here. They may not like that, but I'm certainly on board with that.

When was somebody ever removed for not attending? Never.

I don't think that's going to happen. But I think one of the reasons it's happened is because we're all mindful of the repercussions of non-attendance. First of all, again, all the other advisory boards can zoom in. So they can easily avoid not being present. If they're on vacation in Hawaii, they can zoom in. So they don't have to worry about it. We have to worry about it. And that way, we've got to be way more mindful of our schedules. And I'll just say as someone who works full time, it's really hard sometimes. And I don't want to, again, I don't want to personalize it too much, but it's a challenge enough some days. And when we impose a requirement that's more stringent on the planning board than any other board, it makes it even more challenging.

But we are different from others. We are.

But we, again, if counsel can deliberate on the same quasi-judicial matters remotely that we're deliberating on,

But as I said, that I've only seen because of an emergency situation when someone was in the hospital.

I've seen it when, not to pick on anyone, but I remember when Greg Folley was on a cruise ship once somewhere. Yeah, I think so. It's happened. If they can do that and consider quasi-judicial matters, come on.

And in our case, we can certainly remotely participate, but we can't vote.

Yeah, even if it counted towards the attendance requirement but we couldn't vote.

Well, I really wasn't concerned about the attendance requirement.

Right, but deliberate.

Hearing the information and participating, and sometimes then it's carried over. So I think on the time that I've been here, there have been other full-time working people that owned a business and so on. I think in your case, because of the travel aspect, it makes it more challenging. I agree also with the sentiment that it's always better to be in person. I have other boards that I'm on that I'm allowed to via Zoom attend. It's not the same. It's not the same, especially when you're serving the public. So there needs to be some balance. I don't think we'd want anybody that's going to be Zooming in every meeting.

Maybe Brad's idea of a minimum number per year. Some reason.

And I agree 100% with Nanette. Every board I've ever served on where I've had to attend the meeting by Zoom, you lose the whole feeling of the room and you're talking over somebody because you can't see what people are saying. It's just not, it doesn't work.

I agree. Just the collaboration of us, too.

Yeah, we have a very free-flowing board. And I'm not saying make it the rule. I'm saying allow it as an exception to the rule on occasion.

In case of an emergency.

David, you didn't happen to find anything on what you were looking at, did you?

Well, I was just looking at resolution 20-21, which is entitled allowing city council members, city appointed board and committee members to appear using communications and media technology. And the paragraph related to In Section 3, it says consistent with Section 3.062 of the Charter, to the extent the council or board committee member requests to appear by CMT due to extraordinary circumstances, and that's where they reference COVID-19, medical, health-related issues, the council's board committee members who are physically present and voting must, by a majority vote, authorize the appearance via CMT. So to the extent that your fellow board members want to allow you to participate, via CMT for items. I haven't found that quasi...

It's right above it, in the bottom of Section 2.

It says, yes, city-declared quasi-judicial matters shall not be held through the use of CMT. There you go. So you can participate in items that aren't necessarily quasi-judicial, like this discussion today, but unless, you know, I confer with the city attorney, but unless this resolution is amended, then that would prohibit you from doing that. But you still have to have a physical quorum present in the room.

Why don't you send an email? Start there. I'll start it there.

I just want to throw this out. The planning board is probably the best committee board or whatever that I've ever been on. At one time I had all the committees except the audit committee when I first got here. So it's really important. I think you being here personally is really important as far as from a staff's perspective because the language, your body language, how you react to certain things helps us tremendously on us making decisions and recommendations. We also have the opportunity to, we can change, we're doing that right now on the fly. If for some reason we have too many people off or someone's off, there's no reason why you can't bring forward to staff and say, hey, I'm going to be out of the country for two weeks. Could we change it from the first Friday to the second or third Friday? Some of you probably don't remember. At one point in time, we had planning board meetings twice a month when I first got here. If you remember, we had the glitch list. We had all kinds of stuff that everybody wanted to talk about, which I really don't want to think of those days anymore. But, for instance, Hayden, if there's something that you feel important or you would like to be here, don't hesitate to let us know, and we can change that meeting.

The challenge, Dan, is there are certain... commitments that we can project in advance with enough time to change a meeting and then others that come up last minute whether it's a work obligation or we just get sick or something and that is unavoidable. We've had things posted for the public and heard and notices have gone out. We can't do it and unfortunately For me personally, and again, I don't want to make this just about me, a lot of them fall into that category.

Well, I'll be honest with you. It's not just you. There's other planning board members that, for whatever reason, they have things that they have to do, and they'll let me know ahead of time. And I'll be more than happy to accommodate whatever issue you have, because I really want you here.

But again, it's not always knowing it. Right. That's the problem. Life happens.

It does.

Today's attendance is the worst I can remember where we actually have two people missing. It doesn't happen hardly ever.

It's pretty rare. Because they think we're all vigilant. We try to do a good job of that.

Yeah. Okay. Anything else from the board? If not, I'd entertain a motion to adjourn. So moved.

Second. All those in favor? Aye.

All right. We're adjourned.