text:
OFFICE OF THE HEARING EXAMINER, LEE COUNTY, FLORIDA HEARING EXAMINER RECOMMENDATION REZONING: DR12011-00004 APPLICANT: WCI COMMUNITIES, LLC., in reference to GATEWAY DRI & PUD AMENDMENT HEARING DATE: NOVEMBER 9, 2011 I. APPLICATION: This matter came before the Lee County Hearing Examiner as an Application for a Notice of Propose Change (NOPC) to the Gateway DRI and Amendment to the Gateway PUD pursuant to the Lee County Land Development Code (LDC). Filed by WCI COMMUNITIES, LLC., c/o PAUL ERHARDT, VICE PRESIDENT, 24301 Walden Center Drive, Bonita Springs, Florida 34134 (Applicant/Owner); RWA, INC., c/o PATRICK VANASSE, AICP, 1550 Carson Street, Fort Myers, Florida 33901; RWA, INC., c/o CHRISTOPHER O. SCOTT, AICP, LEED-AP, 1550 Carson Street, Fort Myers, Florida 33901; PAVESE LAW FIRM, c/o NEALE MONTGOMERY, P.O. Box 1507, Fort Myers, Florida 33902; PASSARELLA & ASSOCIATES, 13620 Metropolis Avenue, Suite 200, Fort Myers, Florida 33912; DAVID PLUMMER & ASSOCIATES, 2271 McGregor Boulevard, Suite 200, Fort Myers, Florida 33901 (Agents). Request is for a Notice to Proposed Change (NOPC) to the Gateway DRI (State Number DRI 1-8384-36) AND Amendment to the Gateway PUD (PUD ZAB 85-43 as amended), to amend the boundary of the DRI by removing 185 acres located in the City of Fort Myers. The subject property is located south of Colonial Boulevard and SR 82, east of 1-75 and north of Daniels Parkway, Fort Myers Planning Community, Sections 1 and 2, Township 45 South, Range 25 East, Section 31, Township 44 South, Range 26 East, and Sections 5, 6, 7, 8, 17, 18, and 19, Township 45 South, Range 26 East, Lee County, Florida. (District#5) II. STAFF REPORT AND RECOMMENDATION: APPROVE WITH CONDITIONS The Department of Community Development Staff Report was prepared by Nettie M Richardson. The Staff Report is incorporated herein by this reference. III. RECOMMENDATION OF HEARING EXAMINER: The undersigned Lee County Hearing Examiner recommends that the Lee County Board of County Commissioners APPROVE the Applicant's request for Notice of Proposed Change (NOPC) to the Gateway DRI (State Number DRI 1-8384-36) AND Amendment to the Gateway PUD (PUD ZAB 85-43 as amended), to amend the boundary of the DRI by removing 185 acres for the real estate described in Section IX. Legal Description WITH THE FOLLOWING CONDITIONS: Case DR12011-00004 20-Dec-11 - Page 1 A. CONDITIONS: 1. The development of the Gateway DRI must be consistent with the one page Revised Map H Plan entitled "Gateway - PUD/DRI NOPC," stamped received by Community Development on November 22, 2011 and attached as Exhibit "B," except as modified by the conditions below. 2. The development of the Gateway DRI must be in compliance with the Gateway DRI Development Order#1-8384-36, as amended. All terms and conditions remain in full force and effect except as may be otherwise modified herein. 3. The terms and conditions of the original Gateway PUD Ordinance, Ordinance 85-15, as amended, remain in full force and effect except as may be otherwise modified by this approval. 4. The density of the remaining portion of the Gateway Community DRI may not exceed six units per acre. IV. HEARING EXAMINER DISCUSSION: This is a request to modify the Gateway DRI to remove about 185 acres from the northwest side of the 2,485-acre development located north of Daniels Parkway, east of 1-75 and west of State Road (SR) 82. The DRI is abutted on the north by the now-closed County landfill, on the south by Daniels Parkway, on the east by SR 82 and Lehigh Acres, and on the west by Pelican Preserve and The Plantation residential communities. It is zoned PUD, and is deSignated New Community, Wetlands and Public Facilities in the Lee Plan. Issues There were no outstanding issues between Staff and Applicant in this request. However, several Gateway residents and members of the Gateway Services Community Development District (CDD) raised a couple of concerns about language changes to the DRI Development Order (DO), and the loss of revenue from the transfer of the 185 acres. PLEASE NOTE: Both the Hearing Examiner and County Attorney advised these residents that the Hearing Examiner does not have the authority to determine the rights and obligations of WCI and the CDD, with regard to the DRl's roads. In addition, the Hearing Examiner clearly has no authority to order another legal or governmental entity to reimburse the CDD for its anticipated lost revenue. The discussion was included herein to give the BOCC some background on these issues, as the public was not satisfied with the Hearing Examiner's and County Attorney's explanations, and are expected to attend the BOCC zoning hearing to bring these matters up. 1) The CDD was very concerned about proposed revisions to Section 3.10 in the DRI Development Order (DO), which relates to the ownership, maintenance and operation of Gateway Boulevard, Commerce Lakes Drive and Griffin Boulevard. Section 3.10 in the Ninth DO Amendment was badly revised, and the result was that neither the language nor the intent was clear. Applicant was proposing language that would clarify the intent of that requirement. Case DR12011-00004 20-Dec-11 - Page 2 Sections of Gateway Boulevard, Commerce Lakes Drive and Griffin Boulevard are owned, maintained and operated by both WCI and the COD. At some point in the past, the COD obtained ownership, with maintenance rights and obligations, for specific segments of these three roads, with WCI having ownership and maintenance rights and obligations for the remainder. Both WCI and the COD will be involved in whatever action is taken relating to the future ownership, operation and maintenance of these roads. The COD fears that WCI will dedicate its portions of these roads to Lee County, without providing for the safety of the residents, and are adamant that this not be allowed to happen. They noted that the COD has been negotiating with Lee County DOT (LCDOT) about accepting their portions of these roadways, but with stringent conditions intended to protect the residents and their quality of life. They are trying to get LCDOT to enter into an interlocal agreement about the use and maintenance of these roads, and WCI has not been party to those negotiations. If WCI dedicates their portions of these roads without those conditions, it will undermine the COD's efforts to bring LCDOT around to their way of thinking. The COD is also concerned that WCI will try to give those roads to the COD, without dOing any improvements to them. They would accept WCl's roadways, provided the roads have been brought up to the County's standards. However, they do not want language in the DRI DO that appears to give WCI the right to give the roads, but does not give the COD the right to refuse them. They also wanted the language changed to give the COD the right to enter interlocal agreements with LCDOT for the future maintenance and use of the roads and the ability to stop WCI from giving the roads away, without the COD's consent. The COD also wants the roads reclassified to collector or local, as an effort to reduce some of the traffic flow through this site. In the alternative, they want the ability to install some type of traffic calming devices, on these roads, to slow down the traffic. The residents and COD's concerns relate to the safety of the residents, the destruction of the residential nature of their community, and the cost of the maintenance, which will be borne by the Gateway residents, if the roads are not accepted by the County. They pointed out there is already a lot of non-Gateway traffic using those roadways, which adversely affects their community. They also fear that their roads will become the primary shortcut for Lehigh and other east Lee County residents to get to the Red Sox stadium, when it opens next year. They believe that WCI is almost built out and does not want to have any ties to the community, once the build out happens. They asked the Hearing Examiner to require WCI to work with them and LCDOT about the future ownership and maintenance of those roadways. They also wanted the Hearing Examiner to confirm, in the DRI DO, that the COD has the right to enter into independent interlocal agreements with Lee County about these roads. Applicant had no objections to including a sentence in Section 3.10 that reflected the COD, as a standalone legal entity, has the right to enter into an agreement with Lee County about the COD's roadways. They also had no problems including a sentence that acknowledged that COD has the right to refuse to accept the portions of roadways owned by WCI. However, neither Staff nor the Applicant accepted the rest of the demands being put forth by the COD. They both asserted that the Hearing Examiner has no jurisdiction over private entities with disputes over certain property or contract rights. They argued that neither the Hearing Examiner nor the BOCC could grant the COD's requests. Case DR12011-00004 20-Dec-11 - Page 3 LCOOT advised that they will not accept the roads until the roads are improved to meet the County's standards, and they will not agree to reclassifying those roads to collector or local roadway status. Those roadways were classified arterials when the ORI was approved, and LCOOT will not downgrade that classification. Also, Lee County is not amenable to the use of traffic calming devices on the roads, as it will hinder the flow of traffic, which is not consistent with the intent of arterial roads. 2) The COO also argued that Staff was incorrect when they found that there were no impacts to sewer and water, because the removal of the 185 acres definitely affected the COD's ability to fund the provision of sewer and water to the remainder of the Gateway lands. The COO's second concern related to the loss of revenue the COD would experience, when the 185 acres were transferred into the City of Fort Myers. Once that acreage is transferred into the City's boundaries, the property will no longer be serviced by the COD. The COD stated that the 185 acres were intended for development with residential units, and the COD was to supply the sewer and water services to those units. When the 185 acres are transferred into the City, the COD will "lose" those "customers." According to their calculations, the COD will lose about $650,000 in water and sewer connection fees, as well as about $600,000 in consumption fees - over the 12-year life of the public bonds financing the Gateway water/sewer project - that would have been generated by the number of houses that were to be built on that 185 acres. The COD wants "someone" to compensate them for those monies. They asserted that the loss of $1.2 million is certainly an adverse impact, caused by Applicant's removal of the acreage from the Gateway ORI. Staff responded their finding was that the transfer of the 185 acres did not create new or unaddressed regional demand for or impacts of water and sewer services; any demand for water and sewer services to the 185 acres would be accommodated by the City. The COD initially requested that the Hearing Examiner order the City to pay the monies, which the Hearing Examiner has no authority to do. It was suggested that the COD take its concerns and demands to the City Council. Then, the COD wanted to know if the Hearing Examiner could order WCI to reimburse them, since it is WCI's actions that are going to result in those losses. Again, the Hearing Examiner explained that this matter is not properly before her, and that she has no authority to do what they are requesting. Background The Gateway ORI was originally approved in May 1985, for a mix of residential types and business/commercial/office uses, with support facilities and ancillary non-residential uses. It was zoned PUO at that time, as planned development zoning districts had not been adopted in the County's zoning Ordinance. The ORI Development Order (~O) has been amended nine times, since 1985, to address changes in the plans of development and mix of uses, to establish a conversion ratio between office/commercial and residential units, to extend the build-out and commencement dates, and to amend the legal description for the ORI to remove acreage annexed into the City of Fort Myers. The changes requested herein affect only the ORI DO; no changes are proposed to the PUO approval. This request is to remove the 185-acre parcel, identified as Area 2, Unit 6 in the Gateway Master Site Plan, from the Gateway ORI so that it can be added into the Pelican Case OR12011-00004 20-0ec-11 - Page 4 Preserve DRI, which lies on Gateway's west boundary.' Since Pelican Preserve and the 185 acres are within the City of Fort Myers, the addition of the 185 acres and revision of the Pelican Preserve's boundaries will be handled by the City. It was explained that both Gateway and Pelican Preserve are owned by Applicant, and the 185-acre parcel was developed as part of the Pelican Preserve golf course. That parcel is physically located within the Gateway boundaries, and has been governed by the Gateway DRI DO. Inclusion of that acreage into the Pelican Preserve DRI will place the entire golf course under the terms of the Pelican Preserve DRI DO. This 185 acres was annexed into the City in 2004, as part of a 417 -acre parcel that Applicant had intended to add to the Pelican Preserve property. However, the boundaries (legal descriptions) of the Pelican Preserve and the Gateway DRI's were never adjusted to reflect that annexation. Recently, Applicant decided to de-annex 232 of that 417 acres and "return" them to Gateway, which is in unincorporated Lee County. That is the reason the NOPC filed herein encompasses only the 185 acres, that are being transferred. The de-annexation petition was to be heard by the City during November 2011. Applicant explained that the removal of that 185 acres from the Gateway DRI property will not result in any increase in density, intensity or changes to Gateway's previously approved plan of development. In addition, it will not result in any increase in density, intensity or significant changes to the Preserve's plan of development. Basically, this amendment is to correct the legal description of the Gateway DRI, but Applicant has requested several minor corrections/changes to the DRI DO, as well. For instance, statutory monitoring requirements have changed from annual reporting to biennial reporting, and the DRI DO needs to be updated to reflect a biennial reporting requirement, and a current monitoring report needs to be filed with Southwest Florida Regional Planning Council (RPC), state agency and other local agencies/governments. Also, the DRI Map H needs to be updated to reflect the latest boundaries resulting from the removal of that 185 acres. Applicant was also asking to reduce the setback along the landfill property from 660 to 40 feet. They explained that, when they prepared Map H for the original approval, the landfill was still in operation and they put in the 660-foot setback. That setback was really classified as a "holding area" that would be designed and developed after the landfill finally closed. The landfill has been closed for a number of years now, and Applicant wants to reduce the setback to the 40-foot depth. That way, they can develop that remaining 620-foot-wide strip, instead of having it remain vacant acreage. That 660-foot-wide strip was never used toward meeting any of the DRl's open space, buffer or environmental requirements. Thus, the reduction to a 40-foot width along the north boundary does not trigger any of the DRI substantial deviation criteria. 1 The Pelican Preserve DRI was approved in 2000 by the City of Fort Myers, under the name of "Sun City Fort Myers DRI." It lies on the west side of the Gateway DRI, and the east side of Treeline Boulevard. Although an interconnection is shown on the aerial photographs, the two ORis are separate and independent of each other, and do not share any cross access easements. Case DR12011-00004 20-Dec-11 - Page 5 Applicant asserted that requested changes do not constitute a substantial deviation, under the provisions of Section 380.06(19), Fla. Stat. They advised that the Southwest Florida Regional Planning Council (RPC) reviewed and approved the proposed boundary changes, finding that the proposed changes did not constitute a substantial deviation and would not require any additional regional impact review. They noted that the RPC requested the revisions to Map H and the updating of the monitoring requirements and other language. Staff concurred with Applicant's assertions and arguments, finding that the request, as described herein, is consistent with the intent of the Lee Plan, the Land Development Code and Section 380.06, Fla. Stat., and will still be consistent and compatible with the mix of uses in the area. They also found that the proposed changes will not adversely affect any of the existing or future uses or environmental conditions in the area, or affect the public health, safety and welfare. Staff confirmed that no changes were being made to the PUD approval or approved plan of development. They agreed with Applicant and the RPC that the proposed changes do not constitute a substantial deviation under the provisions of Section 380.06(19), Fla. Stat. As did the RPC, Staff found that the changes would not create nor result in new regional impacts in the area, and that no additional DRI review is necessary. Environmental Staff determined that the reduction of the 185 acres from the Gateway DRI would not reduce open or preserved space, and would not adversely affect any environmentally sensitive areas or protected species. They made the same finding about the inclusion of the 185 acres into the Pelican Preserve DRI. Those findings were consistent with the findings made by the RPC Staff. Public The public's discussion is set out in the Issues section above. Hearing Examiner Analysis The undersigned Hearing Examiner concurs with Staff's analysis, findings and recommendation of approval of the requested changes, finding that the requested changes are consistent with the intent and provisions of the Lee Plan, the Land Development Code, and Section 380.06, Fla. Stat. She also finds that the changes will not adversely impact the persons or properties in the vicinity of the properties, or the public health, safety and welfare. In this case, amendments to the DRI DO do not follow the common amendment process of other ORis, because this DRI was adopted as a PUD - not a planned development. In the customary procedures, the previously adopted or amended DRI DO is used as the foundation document for the new amendments. Any provision not being changed is simply brought forward "as is" into the "new" amendment. Thus, only the provisions relating to the NOPC amendment at issue are changed, making it easy to track all the provisions of the DRI DO from the original approval to the latest amendment. In this case, each DRI DO amendment relates only to the changes being requested in the current NOPC; these amendments do not bring forward the unrevised provisions from the original DRI DO or preceding amendments. This results in numerous DRI DO amendments, which are all applicable to the DRI development. Thus, to understand all the requirements Case DR12011-00004 20-Dec-11 - Page 6 in the ORI ~O, Staff has to pull all the previous amendments and compare them. That was how the language in Section 3.10 got messed up. Applicant realized that the mistakes that had been made in the Fourth and Ninth Amendments were because there had been no comparison with the previous Amendments. They were trying to straighten out the language to achieve the intent of the language in the original ORI ~O, without losing any of the requirements added through those two Amendments. This proposed change gave rise to the objections from the public discussed in the Issues section hereinabove. In addition to the objections discussed above, certain residents argued that the public notice was insufficient to place the public on notice of the ALL the proposed changes to the ORI ~O. They noted that the published notice said nothing about "text changes" and, when discussing the matter with the public before the hearing, Staff never told the public about the text changes, either. They wanted the Hearing Examiner to declare the notice to be insufficient and to continue the hearing until all Gateway residents could be re-noticed of all the proposed changes to the ORI ~O. They asserted that many of the residents were concerned about the future ownership and maintenance of their roads, and would certainly have been at the hearing, if they had known about the proposed text change. The re-notice would give more residents the opportunity to attend the rescheduled hearing to tell the Hearing Examiner how they felt. The Hearing Examiner denied the COD's request to postpone the hearing, so that new notices could be provided to other Gateway residents. She found that the COD was not a party to this case, and was not under the jurisdiction of the County or the Hearing Examiner. As such, the COD has no standing in this proceeding. In addition, she found that the public was not being denied due process, or being prejudiced, in any way, as several residents and members of the COD were at the hearing and were provided the opportunity to speak on these matters, even though these matters could not be resolved by the Hearing Examiner or the BOCC. She found that the COD, particularly, had other legal Uudicial) means to resolve their concerns, which did not involve Lee County government or the Hearing Examiner zoning process. She noted that Applicant and Staff had made two changes to Section 3.10 based on the COD's request. In the first change, they recognized that the COD had the right to enter into interlocal agreements with Lee County about the roadway sections owned by the COD. In the second change, Applicant and Staff acknowledged that the COD could refuse to accept the dedication or donation of the roadway segments owned by WCI. Applicant explained, in the hearing, that the COD is a legal entity and WCI was not trying to usurp or disrupt any of the powers and rights of the COD with regard to these matters. Staff, Applicant and the SWFRPC agree that the NOPC is not a substantial deviation, under the provisions of Section 380.06(19), Fla. Stat. The Hearing Examiner concurs with their finding that the changes proposed in this NOPC does not constitute a substantial deviation, so, no additional regional review is necessary. It is the opinion of the Hearing Examiner that the conditions imposed in the ORI DO are rationally related to any impacts associated with the NOPC changes, and, with other regulations, will provide sufficient safeguard to the public interest. Case OR12011-00004 20-0ec-11 - Page 7 V. FINDINGS AND CONCLUSIONS: Based upon the Staff Report, the testimony and exhibits presented in connection with this matter, the undersigned Hearing Examiner makes the following findings and conclusions: A. That the Applicant has proved entitlement to this request, as conditioned in the DRI DO, by demonstrating compliance with the Lee Plan, the Land Development Code, Florida Statutes, and other applicable codes or regulations. B. That the requested changes meet or exceed all performance and locational standards set forth for the potential uses allowed by the request. C. That the requested changes are still consistent with the densities, intensities and general uses set forth in the Lee Plan, and remain compatible with existing or planned uses in the surrounding area. D. That approval of the requested changes, as conditioned in the DRI DO, will not place an undue burden upon existing transportation or planned infrastructure facilities, and the development will be served by streets with the capacity to carry traffic it generates. E. That the request, as conditioned, will not adversely affect environmentally critical areas and natural resources, and the use of the 620-foot-wide strip, of the previously deSignated reserve area, will not result in the loss of any preserve areas, open space or required buffer. F. That the proposed mix of uses, as conditioned, are still appropriate at the subject location. G. That the recommended changes and conditions in the DRI DO are rationally related to the impacts anticipated from the proposed development, and, with other regulations, will provide sufficient safeguard to the public interest. H. That urban services, as defined in the Lee Plan, remain available and adequate to serve the remainder of the DRI, once the 185 acres have been transferred to the Pelican Preserve DRI. I. That the requested changes do not create new or additional unreviewed regional impacts and do not constitute a Substantial Deviation under Section 380.06(19), Fla. Stat. J. That the Hearing Examiner has no authority to require WCI or any other legal or governmental entity to accede to the demands for reimbursement of anticipated loses being made by the Gateway Services Community Development District. Such authority rests solely with the Florida judicial system. VI. LIST OF EXHIBITS: STAFF'S EXHIBITS 1. Two (2) 2011 aerial photograph, prepared by Lee County Department of Community Development, printed November 2011 (8.5"x11 ")[color] Case DR12011-00004 20-Dec-11 - Page 8 Resumes of Lee County Staff are on file with the Hearing Examiner's Office and are incorporated herein. APPLICANT'S EXHIBITS 1. Eleventh Development Order Amendment - Draft - Development of Regional Impact #8384-36 (multiple pages - 8.5"x11 ") 2. Original & ten (10) amended Development Order for Gateway - Development of Regional Impact #1-8384-36 (multiple pages - 8.5"x11") 3. Pelican Preserve Annexation Exhibit, prepared by RWA Consulting, updated by June 16, 2011 (11 "x17")[color] 4. Gateway PUD/DRI aerial photograph depicting the 185 acres to be removed, prepared by RWA Consulting, dated August 5, 2011 (11"x17")[color] 5. Landfill/Residential Separation, prepared by RWA Consulting, dated November 7, 2011 (11 "x17")[color] 6. Aerial of north corner at Landfill (8.5"x11 ")[color] 7. Conservation Areas, prepared by RWA Consulting, dated November 7, 2011 (11 "x17")[color] 8. Memorandum from Nettie Richardson to the Hearing Examiner, dated November 29, 2011, of revised Map H (1 page - 8.5"x 11" & 1 - page 11 "x17" & 1 page - 24"x36"){post hearing submittal} Resumes of Applicant's consultants are on file with the Hearing Examiner's Office and are incorporated herein. OTHER EXHIBITS: 1. Pires letter with attachments, dated November 9, 2011 VII. PRESENTATION SUMMARY: The Hearing Examiner introduced herself and the case, after which the Assistant County Attorney, Michael Jacob, made his opening comments about the public hearing process. He explained that today's hearing was one of two hearings in this matter, and, if they wanted to speak before the Board of County Commissioners (BOCC), they had to speak in this hearing. Their concerns, questions and objections would be addressed by the Hearing Examiner in her Recommendation. Case DR12011-00004 20-Dec-11 - Page 9 He asked that anyone wishing to speak or receive a copy of the Hearing Examiner's Recommendation fill out a Public Participation Form and submit it to the Hearing Examiner before the end of the hearing. At the conclusion of Staff's presentation, the Hearing Examiner would open the floor for public comment and that was the time the public could address the Hearing Examiner on this matter. He asked that they indicate the location of their property on the aerial photographs displayed on the bulletin board, if possible. At the close of those opening remarks, the participants seated at the front table introduced themselves. The County was represented by: Nettie Richardson, Principal Planner with the Lee County Zoning Division, and Mr. Jacob, Assistant County Attorney. The Applicant was represented by: Patrick Vanasse, a Planner with RWA, Inc.; Neale Montgomery, Attorney; and Barry Ernst, the Director of Planning and Permitting with WCI Communities. At that point, the Hearing Examiner explained that cell phones needed to be turned off, and that water was the only beverage allowed in the hearing room. She advised that all comments and concerns raised by the public need to be relevant to the matter before her; neighborhood disputes and personality differences have no bearing on her decision. The Hearing Examiner then placed all of the participants under oath. Ms. Montgomery re-introduced herself, and referenced a letter written by Mr. Pires to Ms. Richardson on November 9,2011. She wanted to discuss the first item in that letter with the Hearing Examiner and Mr. Jacob, but the Hearing Examiner commented that she did not have a copy of that letter. A copy was then handed to her for the record. Ms. Montgomery noted that paragraph one suggested that the hearing could not be held as scheduled. She noted that Mr. Jacob and the Hearing Examiner had a copy of the Administrative Code AC 2-8, which relates to notice, and inquired whether it was the County's opinion that the notice provided in this case was appropriate and sufficient. Mr. Jacob responded that, with regard to DRI Development Orders (DO) and DRI amendments, the only items advertised in the Notice were the substantive matters before the Hearing Examiner. The discussion in Mr. Pires' letter related to proposed changes regarding traffic. In Mr. Jacob's opinion, the proposed changes were not substantive; they were merely clarifications. He pointed out that Mr. Pires would have his own position regarding that. Mr. Jacob explained, in many DOs and DRls, the changes proposed were clarifications and restatements, and some were just to clean up the language. Those types of changes were not advertised, as the County did not try to include everything being amended in the DRI DO. He could not imagine how long those advertisements would be if they did. It was the County's position that it should only be included if it was substantive. For that reason, he was leaving, up to the Hearing Examiner, the decision of whether the proposed changes were substantive or merely clarifications. Ms. Montgomery noted that the language referenced by Mr. Jacob was located on page five of the Administrative Code, under "D," at the top. She then read the following: "a description of the substantive request with sufficient detail so as to advise the public as to what the application may encompass, but it need not describe the proposed plans or details thereof" She did not know if the Hearing Examiner wanted Mr. Pires to address this issue now or wait until public partiCipation was allowed. The Hearing Examiner wanted to know if Mr. Pires meant his letter to be a challenge to jurisdiction, since she had not had an opportunity to read it. Ms. Montgomery stated that it did not say that explicitly. Then, the Hearing Examiner called upon Mr. Pires. Case DR12011-00004 20-Dec-11 - Page 10 Anthony Paul Pires Jr., introduced himself for the record, noting that he was with the Law Firm of Woodward, Pires and Lombardo. He was representing the Gateway Services Community Development District (CDD) at this hearing. The Hearing Examiner commented that she had not had an opportunity to review his letter, and asked Mr. Pires to explain to her the purpose of the letter. Mr. Pires stated there were a number of aspects for the letter, but the initial aspect was as mentioned by Ms. Montgomery and Mr. Jacob. Mr. Pires provided copies and noted that item number one referenced a notice in the Fort Myers News-Press, which he printed from the online version. There was no reference in that notice that there would be any proposed changes to any portion of the text of the DRI DO. It merely stated that the purpose of the DRI and PUD amendment was to amend the boundary of the DRI by removing 185 acres located in the City of Fort Myers. He and his clients believed that the proposed changes could be construed as substantive, rather than a mere clarification. They also had some additional comments that he would make during the course of the hearing as to some other clarification aspects of the language. Mr. Pires thought that the public, as a whole, was not put on notice that there would be any changes to the text of the DRI DO. He pointed out that one of the areas in there was that the CDD did not have zoning or land use powers, but there was also language in the text that addressed setbacks. Mr. Pires did not know if Mr. Jacob would believe that to be non- substantive either. He explained that was not an issue that the CDD gets involved in, but maybe the public as a whole would consider that to be a substantive matter. The Hearing Examiner wanted to confirm that Mr. Pires' objection to the content of the notice was not necessarily on behalf of his client, but was on behalf of the general public. Mr. Pires stated that it was on behalf of his client, adding that one party might think it was a clarification, while another party might think it was substantive. His client believed the transportation issues were substantive - agreeing that some parts of it were clarification. There were other provisions that could be construed to be substantive when they were changing setbacks. Mr. Jacob asked Mr. Pires to go over the portions that he thought to be substantive; specifically he wanted Mr. Pires to clarify to which DRI DO he was referencing, as there is a total of 11 amendments on this DRI. After copies were distributed, Ms. Montgomery indicated to the Hearing Examiner that all of the changes were required to be indicated in Item 13 of the Notice of Proposed Change (NOPC) form. She then advised that she had given the Hearing Examiner the draft of the DRI DO, and referred to page 2, Condition 10, noting there has been an ongoing email dialogue about Condition 10. First, Ms. Montgomery referred to the original language, which she knew the Hearing Examiner was familiar with, and then she referred to the Fourth Amendment, which changed the original language. In the Ninth Amendment, the language was again changed when Worthington came in and took out the residential to become Stoneybrook. Since the Ninth Amendment did not follow the language from the Fourth Amendment, it created a little confusion in future amendments. Ms. Montgomery made some adjustments to what they had put in the NOPC in an attempt to try to clarify that situation and in an attempt to address the concern that Mr. Simmons raised. She thought that she was addressing Mr. Pires' concerns, but she was not sure that she had. Case DR12011-00004 20-Dec-11 - Page 11 Next, she referred to the bottom of page 3 and the top of page 4, which was language being changed by the Applicant. Ms. Montgomery stated that the matter of to whom the roads get dedicated has kind of vacillated for a period of time. They were trying to finally clear up the situation and have all the changes that had happened consolidated into one change. WCI is obligated to turn the roads over to somebody at some point in time. Originally, they were going to turn them over to the County, but instead of clearly saying: "You are going to turn it over to the County," it said: "Exempted from this requirement." Ms. Montgomery said that it was like saying something positive in a negative way, which was not particularly clear. It was made very clear in the Fourth Amendment that they would turn the roads over, but, then, the Ninth Amendment changed that. The thought was that, maybe, they would turn the roads over to the Gateway Services District instead. Then the language vacillated between that and "No, we are going to go back to giving them to the County." Ms. Montgomery stated that she had gotten calls and information that she understood to be that the Gateway Services District wanted to remain as an option for receiving the three arterials. However, she had just learned from Mr. Pires that the District does not want the roads. Therefore, she thought the DRI amendment could just clearly indicate that Griffin Drive, Commerce Lakes Drive, and Gateway Boulevard were to be given to the County. Mr. Simmons wanted to make it clear that the Applicant had to follow the County's Administrative Code, which the Applicant knew they had to do. Therefore, the Applicant did not mind saying that in the amendment. It was a true statement, regardless of whether it was or was not put in the amendment. The Applicant had to follow the rules. Ms. Montgomery stated that the issue was the clarification of that language of substantive change. The Hearing Examiner surmised that Mr. Pires did not want the dedication of the roads to him, but Mr. Pires indicated that was a misunderstanding. At the present time, the policy of the District's Board of Supervisors was for the referenced roads to be turned over to Lee County; the District had no problems with that occurring, however, the problems the District had related to the language changes. He pointed out that what was being handed out at this hearing was different from what was contained in the NOPC and Exhibit "H" to the Staff Report. He thought that, by the nature of the detailed discussion, it showed that it was a substantive matter in this DRI DO. As such, it should have been advertised, so that everybody would have had a clear understanding of the request. Mr. Pires understood that many people had called to ask for information on the NOPC. He conceded they were members of the public, not of the District's Board of Supervisors, per se, and those people were told that it was just to change the boundaries. He indicated the some other members of the community who were present and wanted to speak could confirm his statements. Mr. Pires asserted that, from the standpoint of the public being on notice and the interested parties being involved, the hearing may not have been properly advertised. They had concerns about that. Ms. Montgomery commented that Mr. Pires was correct that the language being handed out was different from that in the NOPC, but she did not mind if they went back to the language in the NOPC. She had been trying to make everybody happy; if she had not done that, and they would be happier with the other language, she was okay going back to it. She just believed the latest language was better. Mr. Pires appreciated Ms. Montgomery handing the changed language to him out in the hall a few minutes earlier, but he had not really had an opportunity to adjust it or discuss it with his client, the District's Board of Supervisors. Case DR12011-00004 20-Dec-11 - Page 12 Then, Mr. Jacob noted that they had a couple of options. If everybody thought the text change was substantive, the option was to strike all the text changes and proceed with just the removal of the property. He believed there were differing opinions on the text changes, but that the hearing was really about the removal of the property lying within the City's limits. That was really the matter before the Hearing Examiner at this time; OR, if the Hearing Examiner thought they were substantive changes that needed to be advertised, then she could remand the case to Staff for additional notice and it would be rescheduled for public hearing. The Hearing Examiner referred to Mr. Jacob's first option, but Ms. Montgomery stated that option was not acceptable, since the Applicant will have to file another NOPC and go through the process all over again. The Hearing Examiner added that the Applicant would need to make this clarification/correction in the DRI DO at some point in time. She thought it would be easier to make it now, since they were already in the system, than it was for them to have to file another NOPC, pay more money and come back to hearing sometime in the future. Ms. Montgomery pOinted out that every time they did a new NOPC, they had to pay a whole new application fee, which was based on the acreage of the DRI. That got really pricey for just a little text amendment. The Hearing Examiner did not want to say that it was not substantive, but this was a public hearing and now was the proper time for the public to bring up any concerns they had with the proposed changes. She did not feel that their rights were going to be abrogated in any way, nor did she feel that the Applicant or Staff were going to be boxed into a corner by allowing the public to speak on this issue. She stated that she did not want to continue the hearing for another day, because she did not know that this particular language change was sufficient to stop the amendment to the DRI Development Order. She thought that this hearing was going to give them all the opportunity to make the arguments that they wanted to make. If the Hearing Examiner had jurisdiction over them, then, she would consider them and render a decision in accordance with her authority. She thought that they needed to go forward with the hearing and they could make whatever presentation they needed to make during the public input. Mr. Pires thanked her for her consideration and indicated he just wanted to make sure it was noted for the record. At that time, Ms. Montgomery indicated she had a copy of all of the DRI DO Amendments, but did not know if anyone was going to be referring to any of the older versions. If the Hearing Examiner wanted a complete set, she had them available. The Hearing Examiner stated she did want a set, as she would go back through and look at them in her review of the case. With that, she advised the Applicant's Draft DRI DO would be Applicant's Exhibit 1. Mr. Pires' letter and attachments were admitted as Pires' Exhibit 1. The compilation of the DRI DO Amendments were admitted as Applicant's Exhibit 2. Ms. Montgomery referred to the aerial photograph, noting that Gateway, in its original form on the County's Future Land Use Map, was just a big blue area extending eastward from 1- 75. Area nine was the conservation area on the west side of 1-75. Looking at the aerial, Ms. Montgomery pOinted out the green area that was originally part of Gateway, but which had been removed to become the Pelican Preserve DRI. She also pOinted out the 417 -acre parcel that had been taken out of the County and adopted into the City of Fort Myers. They had intended to include all of the 417 acres into the Pelican Preserve DRI, but things did not go as planned. Case DR12011-00004 20-Dec-11 - Page 13 Ms. Montgomery had the annexation agreement, in case the Hearing Examiner decided that she needed it. The annexation agreement stated that up, until the time this property was included in a City Comprehensive Plan Zoning and Development Order, it will remain under and had remained under the Gateway DRI DO. She knew that some of the residents called the City, but was not sure if they called the County. They were concerned about the notices, because the notices said that they were going to take 185 acres out of Gateway. They wanted to know if that meant more land was being added to the City. Ms. Montgomery explained that was not what was happening, but she could understand the confusion, adding that the lands were already in the City, but they were still in the Gateway DRI, not the Pelican Preserve DR!. In short, the Applicant was going to take the salmon colored area out of the Gateway DRI, out of the PUD. Hopefully, it will go into the Pelican Preserve DRI and will go into Special Development Area (SDA) zoning in the City. Under that annexation agreement, the Applicant was allowed to get approvals for the use of that parcel; there were actually four golf holes on this property that were part of the Pelican Preserve DRI golf course. Therefore, it made perfect sense for these golf holes to go with the rest of that community. The Applicant submitted 232 acres of the original 417 -acre parcel for de-annexation from the City, after which it would go back into Gateway and Lee County. The Hearing Examiner wanted to clarify that it was still all part of Gateway, but it was just according to governmental jurisdiction, whether it was in the City or in unincorporated Lee County. That was the difference in the colors; the salmon colored area has been developed under the DR!. In response to the Hearing Examiner's question, Ms. Montgomery stated that once the acreage becomes part of Pelican Preserve, it will no longer be subject to the Gateway DRI provisions. It will become part of the Pelican Preserve DRI and subject to that DRI's provisions. She added that, just like they have filed an NOPC here, they have also filed one with the City. There would be a text amendment, referring to the SDA, which is a special section in the Fort Myers Code for what had originally been known as Sun City, but is now known as Pelican Preserve. When the Applicant amends the legal description for the Sun City / Pelican Preserve DRI, they will include the acreage into that legal, and the 185 acres will become subect to the same regulations as the rest of the Pelican Preserve development. Ms. Montgomery reiterated that Pelican Preserve had also gone through the DRI process, and its DRI DO had a long list of conditions, which will govern the current and future use( s) of the 185 acres. The Hearing Examiner understood that, once the lands were transferred into Pelican Preserve, it would go under their DRI DO rules and regulations, as well as under the City's zoning and Comprehensive Plan. Ms. Montgomery stated the annexation provided for all that. She replied to the Hearing Examiner that the de-annexation of the area colored purple in the aerial photograph, simply took those lands out of the City and returned it to the County. That property was still subject to the terms and conditions of the Gateway DRI DO. Ms. Montgomery explained that, even though the 185 acres had - technically - been within the City limits for a long time, the Applicant was asking to amend the Gateway legal description to actually remove it from the Gateway DR!. The Applicant was also asking to amend Exhibit / Map "H" to reflect the removal of these lands. She explained that, when Mr. Jacob talked about the substantive change, it was a big change, because the Applicant was focused on trying to get those boundaries and approvals straightened out. Case DR12011-00004 20-Dec-11 - Page 14 Ms. Montgomery indicated that she was trying to track the two NOPC applications together for obvious reasons. They have to work on the timing, because, because each had to get into the right jurisdiction when the final decision was made. She believed they were in the correct jurisdiction, and the Hearing Examiner has authority over the matter. The tracking was Ms. Montgomery's concern; it was not something the Hearing Examiner had to worry about in the hearing. Next, she referred to the text amendments. She thought the Hearing Examiner probably remembered that the property to the north, in the original DRI review, had been a landfill. The County kept saying they were going to close it, but nobody knew when that was going to happen. So, the Applicant depicted a 660-foot-wide setback / reserve / buffer area along that north property line to buffer against that landfill use. Now, however, the BOCC has closed the landfill and some of their later exhibits would show that the area is now all grassed over. Mr. Vanasse had done some research about the re-use of lands associated with landfills. He had found that other communities were putting parks and golf courses on landfill territory. Ms. Montgomery reiterated that the area was now all grassy, and the Applicant was seeking to adjust the 660-foot-wide setback / reserve / buffer area down to just a 40-foot-wide buffer setback. The County had already done something similar to that for Stoneybrook, which in some parts of that development, were adjacent to active areas. The subject property was no longer adjacent to any active areas; it was adjacent to the closed landfill. The Hearing Examiner asked if the setback was only for the 185-acre parcel, or if it was for both those parcels that had been annexed or for anything that bordered the landfill property. Ms. Montgomery explained that it was originally for anything in Gateway that was adjacent to the section of land marked Industrial on the FLUM. Therefore, the area will not be subject to that, and when it is in the City, it will apply to the boundary she indicated. The Hearing Examiner inquired about what had been developed in the purple area, and Ms. Montgomery pointed out a construction road that connected to Gateway Boulevard. Originally, the City and the County wanted an east-west road that connected Pelican Preserve to Gateway Boulevard, but that created an issue between the folks in Pelican Preserve and the City. The residents did not want that interconnect, and she pointed out that the construction road would stop at the Gateway boundary, once the approvals are given for these NOPCs. She felt that some of the Pelican Preserve residents would want to talk about why it was an issue for them. Ms. Montgomery explained that, when the project originally went through, certain roads were going to be arterials and would be public roads. All the internal roads would be maintained by the Developer and then would ultimately transfer to the Gateway Services District. The arterial roads were set up so that they could be turned over to the County for operation and maintenance. That was the original language in the first DRI DO. Those roads were: Gateway Boulevard, Commerce Lakes Drive and Griffin Drive. Ms. Montgomery noted that she understood some of the concerns, but, somehow, missed that the residents are not that crazy about those three roads being public roads. They noted that many non-residents cutthrough Gateway, and, apparently, drive faster than the residents like. The Hearing Examiner mentioned speed bumps, to which Ms. Montgomery suggested that was an issue the Hearing Examiner had to take up with the Department of Transportation (DOT), without getting the Applicant in the middle of it. From WCI's standpoint, those roads Case DR12011-00004 20-Dec-11 - Page 15 are public arterials and WCI needed to turn them over for County ownership and maintenance. At one point in time, the language was changed so that those three roads would be turned over to the Gateway Services District, and changed the language so that they would turn it over to Gateway Services District. Then the District said they were not going to take them, and the County expressed strong opinions about whether it was going to take the roads. The situation sort of went along, and the District suggested that the roads be designated collectors, but the County had strong opinions about not making them collectors. The Developer did not want to be in the middle of what seemed to be a dispute between the Services District and the County, and preferred the District and the County carryon that dispute without involving the Developer. Gateway just wanted to turn the roads over to the County, in accordance with the County's Administrative Code. That was what the Applicant was trying to clarify in the text amendments in the NOPC. It was really not any more complicated than that. They did need to have text amendments, and they needed to have the substantive major amendment to make sure they got all of the boundaries correct. At that time, Ms. Montgomery asked for Patrick Vanasse, to be accepted as an expert in planning and zoning forthe hearing. Hearing no objection from the Assistant County Attorney or Staff, the witness was accepted as such by the Hearing Examiner. Mr. Vanasse introduced himself for the record. He indicated he was a certified planner and had been a professional planner for 14 years. He noted that he had previously testified before the Hearing Examiner and his resume should be on file with her office. Mr. Vanasse handed out some exhibits, which the Hearing Examiner accepted as Applicant's Exhibit #3. Ms. Montgomery explained that Exhibit #3 was the document that she had referenced that had the yellow, green, salmon, and purple colorations on it. Mr. Vanasse noted that this Exhibit gave the background and was used to demonstrate the relationship between Gateway, Pelican Preserve, and the annexations that had occurred. The next Exhibit on the board focused on the Applicant's current request for the PUD/DRI amendment for Gateway. The general location of Gateway is south of Colonial Boulevard, north of Daniels Parkway, east of 1-75, and west of State Road 82. The site was initially ±2,485 acres. Referring to the adjacent zoning, Mr. Vanasse noted that to the north was the closed landfill that Ms. Montgomery had discussed. That parcel was zoned AG-2 and CF-3 (Community Facilities). Beyond that were some existing, inactive industrial uses and Stoneybrook RPD. To the west was the Pelican Preserve DRI/SDA that abuts the Gateway DRI. South was the Arborwood IPD and The Plantation, a mixed use development zoned MPD. Along that western boundary, to the south, were some AG lots and conservation areas. Mr. Vanasse indicated the location of Daniels Preserve residential development, to the south. That development contained both residential and commercial uses. Beyond that Daniels Parkway and the Southwest Florida International Airport lands. The other remaining boundary was State Road 82, which was lined by vacant commercial lands in the Lehigh Acres community. There were a mix of residential and agricultural uses beyond the vacant commercial parcels. Mr. Vanasse mentioned that this PUDIDRI was first approved in 1985 and had undergone many amendments, being the 10lh Amendment, in which WCI requested a 4-year time Case DR12011-00004 20-Dec-11 - Page 16 extension, as authorized by the Florida Statutes. Currently, the Applicant was asking for the 11 th Amendment. The first request was for the boundary change to the PUD/DRI boundary, with the removal of the 185 acres shaded in the pink (salmon) color in the exhibit on the board. The Amendment was also asking for some text changes in the DRI DO. He was not going to go into a lot of detailed information because it would simply complicate things, and Ms. Montgomery had already addressed it. The text change related to the turnover of the roads, and which entity should take the maintenance and operation responsibilities for Gateway Boulevard, Griffin Road [sic - Drive] and Commerce Lakes Drive. The Applicant was also asking for a setback change to the reserve area, which had been established because of the active landfill operation when the project was first approved. This area is identified, on Map H, as a general reserve area with a depth of 660 feet. The Applicant was asking for a 40-foot setback in place of the 660-foot feet reserve area and he indicated the boundary where that reserve area was located. He reiterated that the landfill is no longer active, and the only active industrial uses were more than 2,000 feet away - north beyond the landfill. Under the current LDC, the 40-foot setback exceeds buffering requirements between industrial and residential uses. Those buffers were the most stringent buffers in the LDC. Research was conducted on reclamation of landfills and how they could be used, once they are closed, and they found that, in many parts of the country, they were used for parks and golf courses. Therefore, humans could be on the landfill without any negatives effects on their health. Mr. Vanasse noted that, in Charleston, a mixed use project is being built directly on top of an old landfill. Apparently, through mitigation, those property owners were able to ensure public health and safety. The residential uses will be the stories above the ground-level commercial uses, because there was a concern about gas. Mr. Vanasse mentioned that, if the mitigation was addressed properly, there should be no health or public safety impacts. The last text change was to change the annual DRI monitoring reports to biennial reports. Since Florida Statutes allowed for that, the Applicant wanted to take advantage of it. Also, Gateway was mostly built out, so there was not going to be a whole lot of development in the future. For that reason, the Applicant thought that providing the report every two years would be sufficient. Mr. Vanasse wanted to point out that the proposed amendment would not modify currently approved uses and would not change densities or approved intensities. Also, it did not affect open space or conservation areas that are currently required. In his opinion, it would not affect the character of the area, nor will it creates any compatibility issues with surrounding properties. Through their application and as supported by the Staff Report, the Applicant demonstrated compliance with the Lee Plan and the LDC. He noted that, from a substantial deviation standpoint for the NOPC, they reviewed Florida Statutes Section 380.06 (19), which dealt with substantial deviations. It was Mr. Vanasse's opinion that they did not trigger any of that criteria. The Applicant submitted their NOPC and it was reviewed by the RPC, which approved it and determined that it was not a substantial deviation. The RPC also found that the Applicant refuted the presumption of substantial Case DR12011-00004 20-Dec-11 - Page 17 deviation by demonstrating that the abandonment of the 185 acres did not create reviewable impacts to the area. To conclude his presentation, Mr. Vanasse stated that the 185 acres will be part of Pelican Preserve, which is also a DRI and will be subject to those DRI regulations for the future. It will also be subject to Fort Myers Code requirements. Ms. Montgomery then inquired about the reduction in the 660-foot-wide reserve area to a width of 40 feet, wondering if he had a chance to look at any other developed property around the closed landfill to see if they were closer than 660 feet. Mr. Vanasse replied that they created an exhibit about that, and he provided the Hearing Examinerwith a 11 "x17" copy of that exhibit. Referring to the exhibit, he noted the boundary between Gateway and Pelican Preserve, and mentioned that both of the DRI's were identified. To the north was the closed landfill. Then, he explained that the first dimension depicted there was a dimension of 2,385 feet, which was the separation between the Gateway boundary and the closest industrial uses to the north that were currently active. Stoneybrook was to the right of the landfill on the exhibit and they were approximately 1,000 feet from those industrial uses. Therefore, the Applicant's 660-foot separation was much greater than the existing homes in Stoneybrook. Also, the Stonebrook separation from the existing landfill was approximately 170 feet. The Hearing Examiner wanted to clarify that distance was from the rear property line of the residences to the actual property line of the landfill, to which Mr. Vanesse said yes. Mr. Vanesse indicated another exhibit that showed an aerial photograph of the area where the setback would be. It was all vegetative and the vegetation provided a significant buffer. The Hearing Examiner inquired about the clear area asking if it was a service road for the golf course, but Mr. Vanasse was not sure what it was. He thought that it might have been used when they were doing construction on the golf course. Mr. Ernst indicated it was an old haul road that was no longer in use. The Hearing Examiner then inquired if the width of the green area up to the road was the 660 feet. Then, Mr. Vanasse explained that the 660 feet fell south of that road. When she asked for the distance between the haul road and the landfill boundary, the Applicant indicated that it was the 40 feet they were requesting. At that time, Mr. Jacob inquired about the potential for other industrial uses that could be carried on within the subject area. In response, Mr. Vanasse explained that the landfill was closed and was zoned AG-2 and CF-3. Referring to the AG-2 zoned area, he noted that there were no heavy industrial uses, but there was some AG related industrial type of uses. Mr. Jacob wanted to know if that encompassed the whole area abutting the area where the Applicant was requesting the reduction, and Mr. Vanesse said it was correct. The Hearing Examiner noted that Mr. Vanasse was more familiar with the DRI Development Order than she was, and asked if the 660-foot reserve area counted toward the DRI's open space requirement. He said it was not counted toward the DRI buffer requirement, nor toward the open space requirement. The Hearing Examiner explained she was asking about that because of the substantial deviation criteria. Therefore, as long as it was not part of those requirements, the Hearing Examiner did not have any problem with the reduction. Case DR12011-00004 20-Dec-11 - Page 18 Ms. Montgomery added that it was described as a holding area because nobody knew, at that time, when the landfill was going to be closed. It actually got extended one more time that everybody thought it would. It was at that point that the EPC said the landfill had five more years and not to come back for another extension. Now, the landfill is closed and it belongs to Hendry County, but, when they started, nobody knew what was going to happen. Everybody said that it was going to be a holding area and they were going to take a look at this and see what was really going on when the Applicant came through for their final approval. Ms. Montgomery indicated that it had been modified as they have gone along. They had a 660-foot setback when they started to look at it, but there were here now, and they had to tell the Hearing Examiner what was currently there was the green hill. The Hearing Examiner reiterated that she felt better knowing that the reserve area was not counted toward the DRI requirements. She then asked if Mr. Vanasse was familiar with the Bay Colony Gateway case, in reference to Gateway DRI in May 2007 and the hearing regarding the removal of the 417 acres. Mr. Vanasse said he was, that he had worked with Bob Mulhere, a planner with RWA, on that case. The Hearing Examiner mentioned that she had done an analysis on the abandonment issue that arose in that case, and asked if he had a chance to review that analysis. It was contained on pages five and six of her Recommendation to the BOCC. Mr. Vanasse could not recall having gone back and reviewing that analysis, but thought his memory might suffice. The Hearing Examiner recalled that Mr. Vanasse had stated, in this case, the parcel abandonment would not create any impact and also because it was going from a DRI to a DRI, any impacts would have been caught by that second DRI. That was the reasoning set out and argued in the prior (2007) hearing for the removal of the 417 acres. Therefore, the basis of Mr. Vanasse's argument had not changed, which he affirmed. Referring to the impacts, Mr. Vanasse explained that the parameters, other than boundaries, remained the same. They were not creating additional trips, and they were not changing intensities/densities. Ms. Montgomery asked Mr. Vanasse if he was aware of whether a back flow water management system had been put in to control the Gateway Services District. In response, Mr. Vanasse noted that he was familiar that there was portable water and sewer provided for both Gateway and Pelican Preserve projects. However, Ms. Montgomerywanted to know if there was a back flow water management system; Mr. Vanasse's understanding was that there was, but he did not know the details. The Hearing Examiner wanted to know if they were separate and distinct systems, but Ms. Montgomery explained that a lot of the work for this area, in terms of the master drainage and those kinds of things, had already been put in place. Mr. Vanasse noted that he would rather leave this issue to the engineers. At that time, Ms. Montgomery asked Barry Ernst to begin his presentation, asking that Mr. Ernst be qualified as an expert in planning and zoning, as he has been in the past. Mr. Ernst introduced himself for the record. He identified himself as the Director of Planning and Permitting at WCI Communities. The Hearing Examiner wanted to know if he was an AICP, to which he replied he was. Since there were no objections from Staff, the Hearing Examiner declared the witness to be an expert in the fields indicated. Case DR12011-00004 20-Dec-11 - Page 19 Mr. Ernst noted that Ms. Montgomery had done a good job going over the road questions, but he wanted to mention a few other things. The roads in Gateway were primarily owned by WCI Communities. Portions of the road were already in the District's ownership and responsibility. Then, the Hearing Examiner wanted to clarify who the District was, and Mr. Ernst indicated that he was referring to the Gateway Services District. Pointing to the approximate location on the map, Mr. Ernst noted that the roadway, from State Road 82 to the entrance to Hampton Park, was currently owned and maintained by the District, but the District does not own all the roads within the community The road situation has a long history. About 10 years ago, Ms. Montgomery and Mr. Ernst met with Margaret Lawsen to discuss the turn over of the roads and how it would be accomplished. That was the start of the process by the Applicant. The arterial roads must remain arterials. For that reason, they probably would not be able to put gates on them, or do other kinds of traffic calming to slow down the traffic. The County usually intended on keeping the traffic moving freely, if the road was an arterial. Since 2001, the Applicant has been working with the District and Lee County to determine the best entity to take over the roads, because WCI would not be the end holder of these roads. Through the years, they had worked with the District and the Gateway traffic committees and tried to understand what their needs were. One of the biggest things that the District wanted to do was to convince the County that the roads in Gateway, primarily, Gateway Boulevard, needed to be reclassified from an arterial to a collector. In doing so, that would allow certain traffic calming situations to be installed, whether it would be roundabouts or other compact sensitive type calming devices. In 2003, the Applicant had a big meeting including Ms Montgomery, WCI Communities, representatives of the District and some of the residents. They met with DOT and the District to discuss the turnover and the potential for these calming devices. At the end of the meeting, Lee DOT said that the road was going to stay an arterial; it would not be reclassified and no calming devices could be installed or used. A couple of years after that, the District made the County aware that they were still interested in the reclassification of these roads. A resolution by the District - specifically, Resolution number 2007-01 - was adopted to continue trying to convince the County that reclassification was a good idea. After that Resolution, the District and their Traffic Committee came before the Board Management and Planning Committee to hear their request for traffic calming. The Hearing Examiner asked about the Board Management Committee, which Mr. Ernst identified as the Lee County BOCC, acting as the Management and Planning Committee. Ms. Montgomery clarified that it was M and P. The Hearing Examiner indicated that she had not understood his use of the term. Mr. Ernst mentioned that Lee DOT reaffirmed that these roads were going to be public roads and could not be gated and would not be reclassified to collector status. In 2008, WCI again met with DOT to discuss what needed to be done to get the roads turned over to the County. There was a two-year period when WCI Communities was in Chapter 11 and certainly nothing was really happening. Their goal was to conserve cash; not to spend it. Therefore, nothing happened with regard to turnover or bringing the roads up to the standard that they needed to be. Case DR12011-00004 20-Dec-11 - Page 20 In 2010, they met with Howard Coachman and the staff, where they developed the punch list of what exactly needed to be done to get the roads up the standards and in conformance with AC-11-7, which was the Administrative Code for road maintenance and acceptance. The Applicant fully understood that they needed to bring the roads up to that standard for turnover to either the District or Lee County Mr. Ernst noted that, in the past eight months, they have spent more than $50,000 re-milling and trying to fix these roads. It was a temporary patch situation, but it was quite a bit of money to get these roads to at least pass with conditions. He was sure that some of the residents were going to say that they still need a lot more work. Mr. Ernst agreed the roads need more work, and they will try to complete that within the next two years, when funding becomes available. The cost to improve the five miles of roads that WCI still owns will be about a million dollars and it was not an easy task to set aside that money. Mr. Ernst stated that he had wanted to provide the Hearing Examiner with a little history of what they had been doing for the last ten years. It had taken a long time and hopefully this hearing and the new wording would resolve a lot of things. Next, Ms. Montgomery questioned if, to the best of his knowledge, there was a master water management system installed for Gateway. Mr. Ernst explained that he was not an engineer, but Gateway, from day one, had a master water management system. Gateway was 5,000 acres at one time and certainly the area indicated by him and Pelican Preserve were included in that system. Referencing the Map H, Ms. Montgomery wanted to know if that area was depicted as a conservation or a preserve type area, and if it was going to be set aside as green space in that map. In response, Mr. Ernst explained that the reserve areas were simply a holding category in the original DRI DO; they were set aside ahead of time, and was never considered a portion of the open space requirement. He added that open space was certainly plentiful on Map H. Mr. Ernst affirmed that the aerial Ms. Montgomery had given him had conservation areas depicted on it in yellow line. In response to her question, Mr. Ernst explained those conservation areas had gone through all their monitoring and were currently under a conservation easement. Then, Ms. Montgomery wanted to know if those conservation easements were depicted in the aerial consistent with the exhibit that was part of the Gateway DRI & PUD conservation areas, and Mr. Ernst said that they were. He said that, because of the scale of the map, it was hard to tell if they were identical. However, all the wetlands were originally set aside, either under conservation easement or were in the process of being put under conservation easement. Ms. Richardson, referring to the Environmental Science Staff Report, noted that some of the conservation areas had been left off Map H. Staff wanted to make sure that, when Map H came in for the revisions, all the conservation areas were correctly shown. She wanted to know if Mr. Ernst was aware about it, and Mr. Ernst explained that one conservation area was such a small sliver that it cannot be seen, given the scale of the Map H. However, he would certainly put them or some indication of them on the revised Map H. The Hearing Examiner questioned when they were going to revise it, because she preferred to have it approved by Environmental Sciences Staff before it went to the SOCC. Ms. Richardson asked for the record to be left open at the end of the hearing for the Applicant to Case DR12011-00004 20-Dec-11 - Page 21 resubmit a revised Map H so it would delineate all the conservation areas and Staff could check them. Mr. Ernst noted that it may need to be an attachment, but they would identify them. Ms. Montgomery indicated that Stephen Leung was present in case there were any transportation questions. The Applicant was not changing the development parameters, and, therefore, there were no changes in the development's external trips. The Hearing Examiner noted that Mr. Leung did not need to do a presentation since they were no changes in the uses and no increases in the denSity or the intensity of the uses that were already approved. Staff indicated that they had no questions for Mr. Leung. Next, Ms. Montgomery wanted to know if Staff had a chance to look at Mr. Pires' letter and item number two. Mr. Pires was asking to add language to the DRI DO, which said: "The County and the Gateway Services District may enter into an interlocal agreement relating to the operation and maintenance of said roadways to allow authorized special features and treatments to maintain and enhance the residential nature of the area." Ms. Montgomery did not know what the County's opinion was relating to that matter. On one hand, she did not know that WCI cared, while, on the other hand, WCI did not want to be in the middle of whatever interlocals the County and the District got into. It was Ms. Montgomery's understanding from the Florida Statutes that the County and District were able to do that at any time; so, it did not need to be in the DRI DO for them to do it. The Applicant did not want to be hindered in any way because of an ongoing dispute about whatever special features and treatments might be. Therefore, the Applicant would like to not have that language in, if it was going to be a "stumbling block." The Hearing Examiner indicated that she was going to let Mr. Pires address his thoughts with regard to the recommended language. Then, she asked for County Staff to begin their presentation. Nettie Richardson re-introduced herself, stating her resume was on file with the Hearing Examiner's Office and she has been declared an expert in land use planning and zoning matters and asked to be accepted again in that capacity. Hearing no objections, the Hearing Examiner accepted the witness as such. Ms. Richardson noted that she did not have a whole lot more to add to what had already been said during the Applicant's presentation. The reason for the public hearing request was to remove the 185 acres, with the text amendments, to the DRI DO. During Staff's review process, after the notices went out to the 4,000 Gateway property owners, Staff received numerous phone calls, because the map on the back of the notice just showed all of Gateway; the 185 acres was not pin pointed. Most of the residents' concerns and the questions were about the possible annexation of Gateway into the City of Fort Myers, because they did not want to be part of the City. Ms. Richardson reassured them that they were still in unincorporated Lee County. They, also, wanted to know about taxes and if they were going to be increased. Ms. Richardson noted that she was not an appraiser and could not say much about the taxes, but, with the economy, it did not seem like anybody's taxes were going up. They had other questions about the "road" between Pelican Preserve and Gateway Boulevard, wondering what was going to happen with that road. Ms. Richardson explained it was a maintenance road to be used only for maintenance vehicles, after which the residents Case DR12011-00004 20-Dec-11 - Page 22 were happy. She did not go into a lot detail about the road issues like the classification or the maintenance and the operation issues. Staff did not believe it was a substantial issue. Nor did they get into the 660-foot setback reduction on the reserved area. The main issue Staff focused on was the removal of the 185 acres. After the notice was sent setting the date and time of the hearing, Ms. Richardson got phone calls from residents who had not called after the first notice. Those residents had mostly the same questions as the original callers, but some had questions about the Red Sox stadium, which was currently under development. The Applicant had left that area out, and it had not been discussed in the hearing. The Red Sox stadium was southwest of the DRI, right off Daniels Parkway. A lot of the residents were curious about what was going on there and if there would be more commercial development, because they want more things out their way. Those were the types of questions that Staff went through during the public notification process. Once Ms. Richardson explained the majority of the information to the property owners, they were satisfied. The property owners within a 500-foot radius around Gateway were notified, as well. Ms. Richardson noted that the Hearing Examinerwas familiar with the property since she had been involved with some of the previous zoning cases. She was not going into a history of the project during this hearing, as the Applicant has already explained the history. The land use category for the site was New Community, and the DRI plan of development was determined a long time ago to be consistent with the Lee Plan. The conservation of the wetland areas was consistent Lee Plan Policy 114.1.1 and Objective 114, which relates to the natural functions of wetlands and wetland systems. Based on the Lee Plan provisions, Staff found the requested amendment to the DRI DO and the PUD to be consistent with the Lee Plan. Ms. Richardson stated that the Environmental Science Staff reviewed the request and had no concerns with the removal of the 185 acres. Other County Staff present at the hearing were: Susie Derheimer, Environmental Science; and Andy Getch and Clay Simmons, Lee County DOT. The amendments the Applicant was proposing had no effect or impacts on utilities, including water or sewer services. Staff was recommending approval of the NOPC to remove the 185 acres and to amend the Gateway PUD, with four Conditions. The first Condition stated that the DRI DO needed to be consistent with Map H. If the record was left open for revisions, the date of the Map H would change from "August 10" to the new date it was received. The DRI development must comply with the DRI DO, as it has been amended throughout the years, as well as all the terms and conditions of the original Gateway PUD Ordinance 85-15, that has also been amended through the years. The DRI's density cannot exceed six units per acre, and they are not to increase the density or the intensity of the development. Ms. Montgomery wanted to know if, at the time Staff did their review, a determination was made as to whether or not this change was or was not a substantial deviation. In response, Ms. Richardson stated that she made the determination that it was not a substantial deviation. Then, the Hearing Examiner indicated that she had a few questions. She indicated that this was the first time she had ever seen an NOPC and an amendment to a zoning document where they had conditions. She wanted to know if the conditions went in the PUD document or the DRI Development Order. She did not think she had ever seen that layout before. Ms. Montgomery explained that it was a different zoning which was its own separate Ordinance, Case DR12011-00004 20-Dec-11 - Page 23 and not a Resolution adopted pursuant to the Lee County Land Development Code. The zoning approval became an adopted Ordinance for the PUD, and so that would have to go to the local planning agency. The Hearing Examiner was still confused, because, normally, in an NOPC request, the DRI DO did not contain any conditions that went with the zoning document. If there were conditions relating to the zoning document, they were in the zoning document. However, what they had done in this case was to put them all together and she was not sure where it was supposed to go. Ms. Montgomery explained that Map H was the same attachment to the PUD. Therefore, the revised Map H would be attached to the DRI DO, which would address Condition 1. Regarding Condition 2, Ms. Montgomery stated that it was okay to add into the 11 TH Amendment that it will remain in compliance with all the existing terms, as well as with the DRI DO. The Hearing Examiner noted that she understood what Ms. Montgomery was saying, but her concern was that she did not know into what document those conditions were to be placed. She wanted to know if the County Attorney understood what she was saying, after which, Mr. Jacob confirmed it. The Hearing Examiner further explained that the DRI had its own set of rules and regulations, and the zoning had its own set of rules, regulations and conditions as well. What they had was sort of something halfway in between and she did not know what document was going to carry these forward and actually be placed in a file somewhere to document that these things were going to happen. Consequently, Mr. Jacob mentioned that, normally, it would be done as a zoning resolution. There would actually be a draft Ordinance that will carry those conditions, which the Hearing Examiner understood. But that was not what would happen in this case. The Hearing Examiner also noted that she received the language for the changes in the DRI, but she did not receive the DRI Draft DO. Mr. Jacob stated that it was a completely different case than the normal case in which the Hearing Examiner would get a draft copy of the 11th DRI DO, which would be a codification of the DRI DO. Gateway had 11 amendments and they were not done the way that other DRI amendments were done. Ms. Montgomery explained that the first one was the original approval, after which they got the first Area Master Plan. Now, there is a big deal about whether they should do the new amendments as a codification of the previous ones, or as its own separate DO. They created a whole set of conditions for the first Area Master Plan, which got derailed when they did the second amendment, because it was adopted by the Florida Division of Administrative Hearings (DOAH) as a final order. That final order was not even a County document. Then, there was the Fourth Amendment, which was for Pelican Preserve. There were one or two that were for time extensions granted by Florida Statutes, and one where they simply corrected the legal description. They tried to go back and codify the DO's. Many hours and thousands of dollars later, it would always be open to dispute and they could never get from "here to there." Therefore, if the Hearing Examiner made them track them, there would be a lot of people that would "cringe." Ms. Montgomery noted that she gave them all to the Hearing Examiner and she could take a look at them, and the Hearing Examiner stated that she would go through them. Case DR12011-00004 20-Dec-11 - Page 24 The Staff Report contained a summary of the 2006 NOPC, which had been withdrawn before they came to public hearing. Brian Kelner was the planner and he had compiled a little of the history in the Staff Report. It was cut out and pasted into the Staff Report for the Hearing Examiner's benefit. Ms. Montgomery referenced the aerial photograph, noting how it was depicted and that there was not much left to be developed within the DRI community. It was essentially going to be the purple area and in the PUD, there was a process, which was kind of a final plan approval process where they allocated densities. They went through that process so the County actually had a document that was more specific than that page, where they had gone through in conformance with the PUD. It was not like they did not know where all the things are going to be; they are in the process of designing what goes in the last purple piece. Ms. Richardson advised that Staff has a very thick Gateway book in the Zoning Division. The Hearing Examiner inquired if Staff had to go all the way back to step one and come forward for every amendment being requested by the Applicant. Ms. Richardson answered no, adding that was why Brian Kelner had prepared that history summary years ago - so that Staff would not have to go through the entire process every time. The Hearing Examiner wanted to know about the terms and conditions in the DRI Development Order. Mr. Jacob noted that they were all stacked together; in some ways it was easier to do the process, but, in other ways, it was difficult - especially if a piece in the middle gets lost. Then, they reviewed and had no idea of what was going on. He mentioned that Ms. Montgomery did a great job on setting out the different trappings. It was possible to do a codification if they could go through all the documents and map it out. However, they have come to realize that codifying these DRI DO's into one document was not worth the energy it would take to do it. Referring back to the Hearing Examiner's questions, Ms. Richardson mentioned that, in the 2006 hearing, they went through the same process, which meant the conditions were placed in the same place in 2006, as in 2011. The Hearing Examiner noted that she was concentrating on the abandonment issue in that case and overlooked this issue. Ms. Richardson noted that Ms. Derheimer wanted to make a clarification regarding the conservation areas that were previously discussed, and the Hearing Examiner stated that would have some questions for DOT Staff after Ms. Derheimer's presentation. Ms. Derheimer introduced herself and was sworn in, after which she asked to be accepted as an expert witness in environmental planning, as she has been in the past. Hearing no objections from the Applicant, the Hearing Examiner accepted the witness as such. Ms. Derheimer advised that she did not really have a presentation; she just wanted to make a clarification. From what she heard, Staff was saying the conservation areas needed to be amended on the Map H. However, she believed that it had been done, and referenced the August 10th Map H that was attached to the Staff Report. During the review process, Environmental Sciences requested that Map H include all the conservation areas that had been depicted in earlier approvals, as well as the existing conservation easements required by South Florida Water Management to be put on Map H, which the Applicant did. In terms of the location of the conservation areas, it did not need to be amended as it looked the same. The Environmental Sciences' Staff Report was addressing the actual acreage, and it did not have to be determined until the time the Applicant comes in for final plan approval. Consequently, the Hearing Examiner inquired about the two "slivers," after which Case DR12011-00004 20-Dec-11 - Page 25 Ms. Derheimer asked if they could be pointed out to her since she did not see them earlier. After they were pointed out, Ms. Derheimer said that she did not see them as a requirement in any of the approvals. Ms. Montgomery mentioned that Map H originally showed all the same conservation areas that were in the original Map H, but what Ms. Derheimer wanted the Applicant to do was to add in the areas set aside by the WMD that were not originally on the Map H. Ms. Derheimer stated that she just wanted the Applicant to label them correctly; they were actually drawn in, but were not labeled as conservation areas, and that was what she wanted. The Hearing Examiner wanted to know if they were labeled correctly, to which Ms. Derheimer replied yes, but she was not sure about the ones the Applicant was identifying there. The Hearing Examiner noted that if one was missing, it needed to be documented, and she would leave the record open for the revision of Map H. With regard to the open space, Ms. Derheimer said she was not going to claim to be an expert in Gateway's open space, because it was very confusing. However, regarding the 660-foot-wide reserved area, the interpretation of the Code is that the reserved area was not specifically set aside for open space. Based on her knowledge and communications with her supervisor and other Staff members - all of whom have more information or experience with Gateway that she has, there are some limited areas. The Hearing Examiner clarified that it was not designated to meet any of the requirements for open space or buffer area. Ms. Derheimer confirmed that, adding that its ultimate use was to be determined at the time of the final plan approval. If the Applicant could not provide open space in the 660 feet, it could be provided elsewhere within the development area that had been brought in for approval. The Hearing Examiner mentioned that it was one of the criteria that she had to evaluate. If there was a reduction in open space or buffer, it could change the upcoming DRI. Ms. Derheimer explained that she had a concern with that but it will have to be provided elsewhere on the DRI site, if it was not going to be provided there. Andy Getch, with Lee County DOT, introduced himself, noting that he is a registered Professional Engineer in the State of Florida. He then asked to be accepted as an expert witness in transportation engineering and transportation planning. Since there were no objections from the Applicant, the Hearing Examiner accepted the witness as such. The Hearing Examiner inquired about the road, adding that Mr. Ernst had given a short history of what had been happening between the County, WCI and Gateway Services District. She wanted to know what County's current position was regarding the roadways out there, and whether the County was looking as some but not others, She knew that some of the communities were gated and, therefore, their roads will be taken care of by the community itself. She guessed she was asking about the "back bone" roads, and whether they had any more discussions on what to do and how to do it. Mr. Getch indicated the main roads, especially Gateway Boulevard, Griffin Drive and Commerce Lakes Drive, were the ones being discussed by the entities. However, in terms of the actual package submitted to the County for acceptance of road maintenance, that was just Gateway Boulevard, which was in for the "punch list." The other two roads were under consideration, but not the same as Gateway Boulevard. He was not sure if the other side streets were still under WCI, or have been taken over by the Gateway Services District, but they were not an issue for the County. Case DR12011-00004 20-Dec-11 - Page 26 The Hearing Examiner recalled that the Applicant had indicated they owned a 5-mile stretch of Gateway Boulevard from SR-82 down to Commerce Lakes Drive. Mr. Ernst clarified that a portion of Gateway Boulevard is owned by the District; the remainder of that road, Commerce Lakes Drive and Griffin Drive are owned by WCI, which was approximately five miles. Therefore, the Hearing Examiner noted that the portion that was still owned by WCI was the bulk of the roadway out there, which was confirmed by Mr. Ernst. The Hearing Examiner inquired if the County cared who had ultimate control, whether it was the District or WCI, and whether the roads were collectors or arterials. In response, Mr. Getch explained that the ownership did not matter. The classification of whether the roads were classified as arterials or collectors was determined pursuant to the criteria set out in the County's Administrative Code. Mr. Ernst had indicated earlier that Lee County DOT was against the roads being classified as collectors, and the Hearing Examiner asked why. Mr. Getch responded that the DRI DO had specified that these would be arterial roadways, and that language could be found in the copies of the DRI DO's given to the Hearing Examiner by Ms. Montgomery. Mr. Getch referred to Administrative Code 11-1, which set out the provisions for the functional classification of highways. Administrative Code 11-14, which established traffic calming, contained a prohibition against traffic calming on arterials and collectors. Over the next year or so, the County was going through amendments to the LDC and the Lee Plan, relating to complete streets as part of a lot of changes in transportation. Those were some of the things that would look at. The Hearing Examiner asked if Mr. Getch foresaw Gateway Boulevard being gated at either end, and Mr. Getch understood that it was a public road and had been since the beginning of the project. In response to the Hearing Examiner's question if he had reviewed Ms. Montgomery's alternative language in the draft DO, Mr. Getch said yes. The Hearing Examiner inquired about his position regarding that particular language, and he responded DOT's main concern was that an understanding was reached and the subsequent process had to be followed. The BOCC had the ultimate decision on acceptance of the roadways, as part of the Administrative Code process. Staff would make a recommendation to the BOCC on that matter, which was a different process than the DRI NOPC process. The Hearing Examiner inquired if DOT would accept those roadways from WCI now, if they met Administrative Code 11-1. Mr. Getch stated that they would take them to the BOCC for their consideration; however, it was a discretionary decision by the BOCC. Mr. Jacob asked Mr. Getch if the language in the text amendment was in the form of clarification as to the requirements on the County or the Applicant, to which Mr. Getch replied that had been the intent of the language. Since there were no other County witnesses, the Hearing Examiner opened the floor for public participation and asked William Fish to proceed. Mr. Fish introduced himself, noting that he resides in the Pelican Preserve area. He mentioned that the residents of Pelican Preserve were not involved in the "texted amendments," which was mainly the balance of Gateway, and didn't really have any position on that. However, they do have a position on the extraction of the 185 acres and addition into the Pelican Preserve. They were in support of the request. They have spent three years, gone through11 public hearings, and spent $130,000 or $140,000 of their own money to reach the point where they were assured that the construction road would not become a permanent road, and would end at the boundaries Case DR12011-00004 20-Dec-11 - Page 27 of the Pelican Preserve. Their interest was that their golf course remains in its current location with its natural boundary. They did not want the road running through their community because they are a 55 and older community. There are pedestrians, pedestrians with walkers and golf carts on their roadways. A "thru" street would enable public access on their roads and would endanger their residents. Furthermore, he mentioned that this was established through a long process with the City, and therefore, they strongly support the boundaries created between the Pelican Preserve and the Gateway DRI, and the road not going through their community. Tamara Sendewicz was the next witness. She introduced herself and stated that she is an 8-year resident of Gateway, and is also the Chairman of the Gateway Traffic Committee. She did not oppose the 185-acre de-annexation property; what she wanted to talk about were the roads being handed over to Lee County. She was not in favor of that, explaining that their community is unique, in that, they have a rather wide road (Gateway Boulevard) running through it, and their homes are not set back far from it. They also have walking and biking paths that people use on a regular basis, as well as three elementary schools. Therefore, the safety of their residents is their primary concern. They have entered into discussions with Lee County, about an Interlocal Agreement to turn over a portion of the roads currently owned by the District, but the two have not come to any consensus. She mentioned that they were negotiating separate and apart from WCI and had not participated in any of WCI's negotiation or discussions with Lee County. She mentioned there is a long history, as previously discussed, about this matter. Recently, however, there has been no discussion of gating Gateway Boulevard nor would they consider the suggestion that they install speed bumps. However, their goal remains the safety of their residents and the people who travel through their community and they expect that will increase with the Red Sox Stadium opening in March. They were told by Lee County that the stadium will be available for use 365 days a year; that will bring traffic through their community to get to the stadium. Her concern - as a resident - is that turning the roads over to the County will limit the District's ability to keep the residents safe. That will also keep them from asking for traffic calming devices - even at their own expense - which was something that had been recommended and suggested in their Interlocal Agreement, so it strips them of that right. The Hearing Examiner then inquired if Ms. Sendewicz thought the District would be better able or more focused on the rights and concerns of the residents, if the District was responsible for the maintenance and operations of these roadways. Ms. Sendewicz confirmed that was her feeling, adding that the County's objective, as has been repeatedly stated to the Traffic Committee, was to move as much traffic as they can from point "A" to point "B." The objective of the residents is to maintain the safety and integrity of their community. Ms. Montgomery wanted to verify if Ms. Sendewicz, the Traffic Committee and the District were working with the County to turn over the roads owned by the District - particularly their portion of Gateway Boulevard - to the County. Ms. Sendewicz mentioned that there were conditions and stipulations they were looking for and concessions that they wanted the County to make before doing that. Then, Ms. Montgomery wanted to know if Ms. Sendewicz was saying that it was okay for the District to turn them over to the County, but it was not okay for WCI to turn their roads over to the County. Ms. Sendewicz said that was not her Case DR12011-00004 20-Dec-11 - Page 28 position; her position was that WCI intended to turn over the roads with no stipulations and conditions intended to safeguard the residents of Gateway. Ms. Montgomery inquired if the County had indicated that their agreement with respect to the District's and residents' conditions and stipulations, and Ms. Sendewicz stated they were still in negotiations on that. Ms. Montgomery asked if the County had indicated they were going to agree, and Ms. Sendewicz responded that the County never said they would or would not agree; the parties were still in negotiations on the matter. Mr. Jacob clarified that the turnover of the roads had nothing to do with the subject case. The turnover of the road, by either the District, WCI or anyone in the County, was not addressed in the subject case. As Mr. Getch had indicated, it was in a separate proceeding before the SOCC. The Hearing Examiner had no authorization to do that, and, therefore, all this testimony was irrelevant to the case and what was happening in this proceeding today. Ms. Sendewicz only brought it up because she was objecting to the language change in the DRI; her discussion was based on her objection to that change. Mr. Jacob stated, for clarification purposes, the language, as he asked Mr. Getch, was stating specifically what Mr. Jacob had just said; it was a separate process, regardless of whether it was WCI or the District. Mr. Jacob mentioned that it was why he hated changing language and provisions just to restate the obvious, because people think the County is dOing something they aren't. Ms. Sendewicz stated that it was not clear to her. She just found out about it this Sunday, so with a short notice and with minimal time to investigate in any depth, the language, as it appeared, did not seem to suggest what Mr. Jacob was saying. The Hearing Examiner thanked her and asked if she had any other comments, to which Ms. Sendewicz indicated she did not. At that time, the Hearing Examiner called upon Rod Senior, who introduced himself. He noted that he is an active member of the Gateway community and has attended most of the Gateway Services Community Development District (CDO)meetings. He tries to stay in close touch with the main issues facing the residents there. It was his opinion that the current hearing involves five stakeholders: Lee County; the City of Fort Myers; WCI; Gateway Services COO; and the Gateway residents. In a situation like this, some stakeholders lose and some gain. He clarified that Pelican Preserve (colored green on the aerial) had water services supplied by the City of Fort Myers. The orange and purple area was the 417 acres in the Gateway ORI, which was slated to have water provided to the homes there by the COD. Once this is adopted, the orange area will become green (part of Pelican Preserve), and will fall under the City's Codes. He was at the hearing because when that happens, the COD will not be supplying water services to the homes that will be built in the orange/green area. Their COD was created in 1986, under Statute 190, to build infrastructure for the Gateway community by low-cost bond financing. At that time, the Gateway ORI included the 417 acres. The COD has already invested bond proceeds in building its capital structure, like pumping stations and force mains, and has based its economics on a certain EIU buildout plan, including the 417 acres. Their current EIU count in the COO is around 9,000, and the 417 acres, on the basis of 2.25 homes per acre, represent around the 1,000 more EIU's. Case OR12011-00004 20-Oec-11 - Page 29 This application was proposing to remove 185 acres from the 417 acres, which represented a 44 percent reduction - to 232 acres remaining in Gateway, which he identified as the purple area on the map. The 185 acres being added to the Pelican Preserve ORI represented approximately 325 EIU's, which is 325 homes, according to the COO engineer. These 325 homes represent 325 connections for portable water and sewer service. Their COO receives the connection fee or impact fee of approximately $2,000 per connection. Therefore, the loss of that 185 acres means a loss of about $650,000 to the COO, because their COO does not supply Pelican Preserve Community with water services. That loss is the City's gain. That was the reason he believed this hearing was the proper forum to raise his objections, since all the stakeholders are being considered in this discussion. The COO needed to be compensated accordingly and he would prefer the City do the compensating, instead ofWCI, since the City was gaining the connections. WCI was the prime mover in this proposed de-annexation. Mr. Senior understood that WCI stands to gain, because the 232 acres remaining in Gateway ORI will be completely isolated from the Pelican Preserve community to the west. In that way, WCI can build homes more profitably on that acreage and not be restricted to the over 55 age groups demographic. If WCI was to compensate the COO, as opposed to the City, then Mr. Senior wanted that compensation to be in the form of cash. The new WCI entity has recently emerged from the ashes of the Chapter 11 bankruptcy of the old WCI. Given the current economy, Mr. Senior was not sure of WCl's capacity to make a cash settlement with the COO. The COO, per its management firm ( OMS), owes approximately $1.5 Million in prepaid connections to the old WCI - as a result of the 2003 bond arrangement. It was unclear to him whether the COO was in debt to the new WCI entity for these prepaid connections, as the COO had not been listed as a debtor in the WCI bankruptcy documents. Given all this uncertainty, Mr. Senior opposed any arrangement where the COO is compensated by WCI by way of trading in prepaid connections rather than cash. Therefore, Mr. Senior was asking that the Hearing Examiner to consider, firstly, if the COO will be compensated for damages and how much. Secondly, which party will be dOing the compensating, and, thirdly, whether the compensation would be made in cash. With regard to the last part of their submission, if the Application was approved, the COO was expected under each Charter to provide portable irrigation and sewer water services to the future homes on the 232 acres in the purple area, which will be part of unincorporated Lee County. The COO had already invested in infrastructure capacity to service the 417 acres in its 2003 Bond issue. The COD obtains its return on this investment and provisions for future replacement by way of connection fees, already mentioned, and the incremental contribution from water usage charges. Therefore, by removing the 185 acres, the COO enterprise fund revenue from the sale of water was reduced by 44 percent or 325 homes, and was also losing 44 percent of future water usage charges. Thus, the incremental loss in contributions from 325 homes needed to be factored into the COO compensation on a OCF basis for a 20-year life expectancy. Therefore, Mr. Senior was asking the Hearing Examinerto take into consideration the COO's loss of water usages charges, which would be a direct gain by the City. He wanted the City to directly compensate the COO in that matter. He understood that the turnover matter was outside the scope of this hearing, but he fully supports the turnover of the roads to Lee County. Case OR12011-00004 20-0ec-11 - Page 30 Ms. Montgomery wanted to clarify that the presentation was outside the scope of the issues before the Hearing Examiner. The Hearing Examiner explained to Mr. Senior that she had no authority over the City and, because the CDD and WCI were two independent organizations, she had no authority over either of them. Therefore, she could not require the CDD to do something or require the Applicant to do anything, and she certainly could not tell the SOCC that they have to do something. She understood what he was asking, but it was the wrong forum to be asking that. Then, Mr. Senior inquired about the correct forum, however, the Hearing Examiner was not able to tell him. She mentioned that he may need to talk to the City first, because, if he wanted the City to pay for the losses that the CDD was going to incur, they would need to talk to the City. The Hearing Examiner further explained, that neither she nor the County could make the City or WCI give the CDD the money. If an agreement was not reached between the CDD and WCI, that dispute would end up in the Florida judicial system - not before the County Hearing Examiner. She reiterated that he needed to address the City directly on these issues. Mr. Senior wanted to know if the agreement or approval of the application could not be conditioned upon a party that had been damaged to get reasonable compensation. The Hearing Examiner clarified that she did not have the authority to impose that kind of condition. It was not a factor that went into her consideration on whether to approve or deny the Applicant's request. The issue that Mr. Senior was referring to was private property rights between the two entities. At that time, the Hearing Examiner called upon Ed Tinkle, a retired professional engineer who lived in Gateway. His address is 11180 Sent Pine Drive, approximately 1.5 miles south of the subject area. Mr. Tinkle mentioned he wanted to clarify an issue brought by Staff. Staff stated this change would not have any impacts on water and sewer, and he believed Mr. Senior just described a negative financial impact. He would echo everything that Mr. Senior said, in the interest of time, and agreed with Mr. Senior's estimated $650,000 loss of connection fees and another $600,000 revenue loss over the 12-year life of the bonds taken out to finance the provision of sewer and water to the 417 acres. Therefore, the total financial impact against the CDD and the residents was a little over 1.2 million dollars. Additionally, Mr. Tinkle noted that, if it was not the right forum, they would look at another place, but he did not understand Staff's position that there was no ramification, because a financial ramification was significant in the CD D's opinion. Ms. Richardson clarified that the reduction in the acreage would not impact the availability of water and sewer in either DRI; that was what she meant by her general statement. She then confirmed that her statement did not include any financial ramifications to the CDD. The Hearing Examiner added that they were looking at two different entities, which were the CDD and WCI. She reiterated that she does not have the authority to make the CDD supply water; if they decided not to supply water to anybody in that purple area, she could not make them do it. The matter that they are describing is actually a determination of property rights. Monetary loss or gain was also a form of property, and property rights can only be determined in the Florida judicial system. Mr. Tinkle then mentioned that there were negotiations going on between WCI and the CDD on a dollar value exchange. He heard that it was not instituted by this group and he wanted to know if it was perhaps done by the City of Fort Myers. The Hearing Examiner did not know Case DR12011-00004 20-Dec-11 - Page 31 and told him that whatever negotiations WCI had going on with the CDD were outside the scope of this hearing and her authority. At that time, a 10-minute recess was taken, and when the hearing reconvened, Anthony Pires, Counsel for the Gateway Services Community Development District, introduced himself. He noted that a copy of his letter, with attachments, had been provided earlier to the Hearing Examiner and the County Staff, and he provided a copy to the Court Reporter. Mr. Pires reiterated their objection and explained that it was the District's position that there was not adequate notice; therefore, the Hearing Examiner did not have jurisdiction over the case. Based on the presentation that had occurred during the hearing, their chaos and confusion appeared to be a prevailing order. By way of example, Ms. Montgomery had a document that she was discussing in reference to the 11Th Development Order Amendment. His understanding was that they were here under the 10T Development Order Amendment, " and the Staff Report, in their chronology, talked about nine prior amendments. It talked about the 2006-2007 hearing process that went to a hearing before the Hearing Examiner, but was withdrawn before it went to the BOCC; therefore, there was no 10T Amendment. " Furthermore, Ms. Montgomery had introduced during the hearing, and he was given a copy ten minutes ago, of a 6-page document that had language changes substantially different from what was proposed in the application, and attached as Exhibit H to the Staff Report. No notice of any text changes were referenced in any of the legal advertisement, so his client was still objecting to having this hearing. At this time, Mr. Pires wanted Staff to clarify if this was the 10lh Development Order Amendment - not the 111h, and Mr. Jacob responded that it was the 111h The 10lh Amendment was recently approved / adopted by the BOCC for a time extension, based on House Bill 7207. That was about three weeks ago. The State Legislature gave automatic extensions to DRls and WCI incorporated those extensions under the House Bill as a separate Amendment to the DRI Development Order. Therefore, this was the 11 T " Amendment. Mr. Pires questioned if a notice had been provided to the Gateway residents about the 10lh Amendment, because he, as counsel for the District, was not aware of it. Mr. Jacob advised that the matter had been brought before the BOCC on a Blue Sheet, which provided the required notice of hearing. He was trying to find the actual adoption date for Mr. Pires, to which the Hearing Examiner stated that it appeared Staff received the request to extend on July 111h, and that request was duly passed and adopted by the BOCC on October 111h Mr. Pires mentioned that it was appropriate to have an addendum or adjustment to the Staff Report to reflect the 10T Amendment; otherwise, it just created additional confusion. Mr. " Jacob clarified that the Staff Report was prepared before the 10lh Amendment was actually adopted, and Mr. Pires indicated his understanding. With regard to what was being proposed during the hearing, there were a number of additional comments that the District would like to make. In doing so, it was also important to clarify the roadway segment. Mr. Pires noted that Mr. Ernst was incorrect as to the roadways owned by the District. The District owned the one side pOinted out by Mr. Pires on SR-82 to the FPL easement. That area was outside the boundaries of the DRI. There was another segment about 2,170 feet long, around the general area of Gateway Boulevard, which was owned by the District. Mr. Pires' materials included those segments. He pointed out other sections of Griffin Drive that are owned by the District. When it was platted and Case DR12011-00004 20-Dec-11 - Page 32 conveyed in 1994, it was known as (partially) Griffin Drive and (partially) Commerce Lake Drive. Therefore, the District has three roadway segments; two of which are within the boundaries of the DR!. That was why the District felt it had a substantial interest in this particular proceeding. The District's Board had taken the position that both roadways - the segments owned by the CDD and by WCI - should be turned over to Lee County. He felt Mr. Ernst and Ms. Montgomery were trying to go back in time to paint the District as a bad actor. There has been no discussion about gates, since it was discussed in 2003. The issue of road turnover has been a long, fruitful discussion between Staff and District personnel over the last two years. The District thought they needed some Interlocal Agreements that would recognize the unique character of Gateway and the substantial residential character of the communities that use these roads. Those Agreements should recognize that Gateway Boulevard and Griffin Drive traverse the Gateway communities and should contain provisions to protect the integrity of those communities, while maintaining the roadways in the functional category that Lee County wants. In his letter, Mr. Pires suggested language to be added to the DRI DO and the inclusion of which he believed was critical for the District. Others may say that Lee County could always enter into an agreement with them, as nothing precluded them from entering into an agreement. However, Mr. Pires believed that adding the language supported by the Applicant would create an opportunity for dispute, which would hold up WCI from conveying . the roadways to Lee County. Mr. Pires thought that it was a fiction. Referring to his letter, he noted that paragraph two about the proposed language, changes in the transportation section did not reflect the extensive interaction between the District and Lee County over the last several years. Therefore, Mr. Pires was requesting that the following language be added to Section 3.10 of the Gateway DRI Development Order and be recommended to the Lee County BOCC: "The County and GSO may enter into inter/ocal agreements relating to the operation and maintenance of said roadways to allow and authorize special features and treatments to maintain and enhance the residential nature of the area." Mr. Pires reiterated that language did not have any adverse consequences for WCI, but it would have substantial benefits to the District and the residents of the District. Then, referring to Paragraph 2.B in his letter, he noted that it was about the proposed changes as were set out in the Staff Report and the NOPC application Exhibit H. It did not correlate to the Applicant's proposed changes handed to him at this hearing. Those changes were radically different, and he was not even able to comment on those, as he has not had time to really review them. The proposed language that was suggested in Section 3.10 and Section 8, paragraph 3, of the DRI DO stated that the language was intended to revert back to the existing language. Ms. Montgomery, in her 6-page document, tried to go through the history of how the language in the 9th DRI DO came into being. However, in Mr. Pires' opinion, upon a closer reading and comparison of the language in the 9TH DO, with what she was proposing in the 11th DO, showed that was not totally correct. Under the current DO, there was language that needed to be clarified. There was proposed language making the County responsible for the operations and maintenance for arterial and collector roads that were built as a result of the Lee County Official Traffic Ways Map. He Case DR12011-00004 20-Dec-11 - Page 33 noted that the two sentences that immediately preceded that could be construed as being inconsistent with the new language. Mr. Pires read as follows: All roads, regardless of whether or not they are local, collector, arterial or freeway, excluding interstate highways, build by the developer within the community, shall be considered internal roads. All internal roads shall be constructed to Lee County standards, operated and maintained by the developer or/and the community development district. Mr. Pires interpreted the paragraph to state that the local, collector and arterial roads were all internal roads, which were to be maintained by the developer or the District. However, the sentence proposed makes the County responsible for the operation and maintenance of arterial and collector roads. Then going further down in that proposed paragraph, the roads "build as a result of the Lee County Official Traffic Ways Map" were to be maintained by the developer. For that reason, Mr. Pires thought the paragraph needed some clarification. He suggested that the phrase "except that the County is responsible" or something along those lines be added, if the language was going to be maintained in Section 3,10. It was key, from the District's perspective, to have language in there making it clear that the County and the District may enter into Interlocal Agreements relating to those roads. There has been some testimony about Lee County taking the maintenance and operational responsibility for roads that are not roads within a gated community. As an example, Mr. Pires mentioned that The Brooks have an Interlocal Agreement in which Lee County is to maintain certain roadways that had an enhanced level of vegetation, landscaping that provided an opportunity to recognize unique character of the community, and unique characteristics that may exist, whether at signage, landscaping or otherwise. Mr. Pires wanted to make sure the issue about gating was long gone; they needed to refocus on what has happened in the last two years. While the District has had extensive discussions with Lee County about turning over the roads, they have not had the same discussions with WCI. That was part of their source of irritation; nothing had been brought to the District's Board. The only discussions with WCI had been about Pelican Preserve and what would happen with the City. As far as the District was concerned, this lack of discussion gave rise to the public notice issue. In Mr. Pires' opinion, the notice was deficient. Neither the District nor the community, as a whole, were adequately apprised of this request and its ramifications. Mr. Pires wanted the opportunity to provide additional documentation if the record was left open or the hearing was continued. Then, he mentioned the 11TH Amendment DO, commenting that the DO left a lot of language from the prior DO's, but added limiting language. The language that Ms. Montgomery indicated at the top of page four said: "The developer has the option of dedicating the arterial roads under the Developer's ownership that serve a County-wide function of the County or the GSD." It did not reference whether the GSD had the ability to dedicate or convey its roads to Lee County. Therefore, he thought that substantial work needed to be done and the hearing needed to be continued for the public to have their opportunity to comment, and the District to have its opportunity to participate. At that time, the Hearing Examiner understood that WCI had no control over sections of roadways owned and maintained by the District. Referencing the section quoted by Mr. Pires, the Hearing Examiner inquired about WCl's ownership of those roads. In response, Ms. Case DR12011-00004 20-Dec-11 - Page 34 Montgomery explained that WCI owned certain segments, and that, at some point in the near future, WCI needs to turn those road segments over to an operating entity for maintenance, etc. Once WClleaves the community, they are not supposed to be owning any of the roads. The Hearing Examiner wanted to know if the statement in the DRI was intended to say that WCI was going to turn over all the roads, even the portions that were owned by GSD. Ms. Montgomery answered no, as that could not happen since WCI did not have control of those roads. It was why she used the big "D" in Developer, because that represented WCI and not GSD. Mr. Pires stated that his comments were directed more toward it being a limiting sentence, which did not address whether the District could turn over the roads to Lee County. The Hearing Examiner explained that WCI did not have any authority over the District's roads, but Mr. Pires wanted the sentence to read "Developer or the District" have the option. Ms. Montgomery stated that she was fine with that change if Mr. Pires felt it was necessary to add that language to clarify that both entities could turn over their roads. Mr. Pires noted that the difficulty was due to the revised 11th DO draft being handed to him that morning. The Hearing Examiner indicated her understanding. The Hearing Examinerwanted know if Mr. Pires' concern was that, in that paragraph, in some way or another, WCI was trying to limit the rights that the District had over the segments they owned. Mr. Pires noted that it appeared to say just that. Also, he stated that, on page three, he had written in words that had been deleted, but now references were being deleted in that area, too. If the 9th DO Amendment was supposed to go back to the language in the 4th DO Amendment, then they needed to have more deletions and strike throughs. The Hearing Examiner indicated that she would look through all of the previous DO Amendments. Ms. Montgomery explained that was the reason she provided the chronology explaining what she was doing. Mr. Pires stated that the chronology would not help the Hearing Examiner because when the document was looked at, it was assumed that he put back in the deleted language, and it should have been in strike through format. The Hearing Examiner indicated that she would do comparison of the documents, but explained what the District and WCI did with their respective roadway segments will have no bearing on whether she recommends approval of the removal of the 185 acres. This matter was more of a neighborhood dispute, which needed to be worked out between themselves, since she did not have the authority to resolve it. She reiterated that she understood the concerns raised by Mr. Pires, however, the matter was beyond the scope of her authority. The issue before the Hearing Examiner was whether or not there was a reason to keep that 185 acres from being removed from the DR!. Who owns the roads in the Gateway DRI, and who ultimately gives the roads to the County, is a side issue. It was not a substantial issue requiring the denial of the removal of the 185 acres. The Hearing Examiner noted that, if they were trying to do a codification, then, she might have been a little more amenable to doing this. The Hearing Examiner told Mr. Pires that he may go to the SOCC or City of Fort Myers Council about this matter, but, for the purposes of this particular hearing, she does not have the authority to resolve the matter. She pointed out that Ms. Montgomery had said she had no problem with them adding a statement that WCI or GSD could dedicate the roads to Lee County. Case DR12011-00004 20-Dec-11 - Page 35 Mr. Pires mentioned that this dispute was brought to the Hearing Examiner when the Applicant proposed text changes in their application. In Mr. Pires' opinion, it was not just a matter of removing the acreage from the DRI; it also included changing the terms of the DO. He was asking for two things: first, the clarification of the language in Section 3.10, which he believed was within the Hearing Examiner's jurisdiction, so that the SOCC can say that the County and the District can enter into an interlocal agreement for the operation and maintenance of the roads. At that moment, Mr. Jacob explained that the County had no "dog" in this fight. Trying to avoid any more angst over Section 10, Mr. Jacob referred to the 9th DO Amendment and the language adopted by the SOCC in 2002-2003. He suggested that language be reviewed and rewritten, as necessary. Consequently, the Hearing Examiner mentioned that she would have the secretaries put the full language and then do the normal strike through and underline. Then, Mr. Pires stated that the language was not acceptable to the District since it had been added without their knowledge. Mr. Jacob explained that what had already been adopted in prior Amendments was over. He was suggesting that the Hearing Examiner go back to the 9th Amendment and recommended she not make any text changes to Section 10 in these proceedings. The County was okay with that. He added that he was not sure how much Ms. Montgomery wanted to fight in the SOCC for these clarifications. Ms. Montgomery stated that, if they went back to the language in the 9th Amendment, the Applicant would not have the ability to dedicate the roads to the County. The Applicant needs to be able to dedicate them to the County. If there was a complaint about her proposed language, she had no problem with using the language that was contained in the NOPC. She was merely trying to fix some bad language from the 9th Amendment; that was why she had given the Hearing Examiner copies of the different Amendments, so that the Hearing Examiner could track the language. At this point in time, Ms. Montgomery was thinking about striking through completely what happened in the 9th Amendment and starting fresh to have it make sense, even though she did not do it earlier so that everyone would not be hesitant about accepting the change. The Hearing Examiner stated that she has found that the easiest way, when they are making multiple changes in one paragraph, was to strike the entire paragraph and re-write it. Ms. Montgomery explained when they made changes in the 9th Amendment to resolve other issues, they left parts of the paragraph out, but added in other parts. The part that they took out helped explain that transition from the part that was there, so something was "missing." The Hearing Examiner asked Ms. Montgomery to look at page two of Mr. Pires' letter at the language he wanted added. That language was specifically to allow both the District and WCI to enter into interlocal agreements. She inquired if Ms. Montgomery had any objections to the District entering into interlocal agreements with the County, and Ms. Montgomery replied that the District could enter into any agreements they wanted for the District's property, but not for WCl's property. Mr. Jacob asked about using some generic language like: "The owners of the roads may choose to enter into Interlocal Agreements or Development Orders." Ms. Montgomery was okay with that, and Mr. Jacob asked about the possibility of leaving the record open. Case DR12011-00004 20-Dec-11 - Page 36 The Hearing Examiner reiterated that Ms. Montgomery did not have a problem with GSD doing whatever they wanted to do on their segments of the roads. However, Ms. Montgomery did not want the District entering into Interlocal Agreements binding her client to certain actions and requirements for their sections of the roads. Maybe, the roads were all going to be turned over to the County at some point in the far future. Therefore, the language that Mr. Pires had proposed included the recognition that the District had the right to do that for the roads owned by them. Mr. Pires inquired about the proposed language in the application in Section 10 would add: "The County is responsible for the operation and maintenance cost for arterial and collector roads that are built as result of the Lee County Official Trafficways Map." It mentioned three roads and the majority of those roads were owned by WCI, but portions of those roads were owned by the District. The next sentence would be: "The County and GSD may enter into Interlocal Agreements relating to the operation and maintenance of said roadways." It went back to the County being responsible for these roads. The Hearing Examiner understood what they were saying and asked for them to work on it, recognizing that each had ownership and each had certain responsibilities. Mr. Jacob explained to Mr. Pires that one of the main reasons, as they go through these proceedings with DRI DO's, that the conditions or situations change and the people want to make changes in the text to clarify "things." With the prior changes, pieces got taken out and other pieces were dropped in and the provisions no longer made sense; that was why they were revising the text in this NOPC request. The process is fluid, in a lot of ways, as Ms. Montgomery did two drafts coming up to this hearing. It was all designed to get it out here in this forum and then get the final document / language to the BOCC. Mr. Pires mentioned that there are a number of documents associated with this DRI, and to try to redo all of them creates the opportunity to miss something substantial. He felt WCI was asking for the changes to help them further their development scheme to remove the 185 acres and have a different development scheme. He believes WCI needs to bear the cost of this action, because, at the end of the day, WCI will be gone and the residents, the District and the County will be left with whatever document WCI created. Keeping things straight is not a fun task, and it does not get any better with age. This case is a classic example of that. Therefore, Mr. Pires was encouraging that it be one of the conditions. He stated they discussed this matter in 2007 and the District was told that it had to be re-codified, but, four years later, nothing has been done. Mr. Pires thought that it needed to be done and he was requesting that it be made a requirement. Mr. Jacob mentioned that DRI DOs go away, after the project is found to have been substantially built-out. The Hearing Examiner pOinted out that some provisions, like buffering and water management, will still carry forward, and Mr. Jacob stated the continuation of the DRI DO depends on the conditions in the DRI DO. Mr. Jacob indicated that the zoning conditions will remain the same. In addition, Mr. Jacob stated that, once adopting a procedure for determination for substantial build out, that will take Applicants through the process and explain Chapter 380 and the requirements. Ultimately, however, everything· that they were arguing over today, was going away in the future. The Hearing Examiner wanted to know if there were any other questions of Mr. Pires. Mr. Jacob mentioned, for clarification purposes, that the County, the Applicant, and Mr. Pires, as Case DR12011-00004 20-Dec-11 - Page 37 far as his revision to the provision, will get together within the time frame that the Hearing Examiner gave them to work it out. It was going to be a simple provision. Peter Doragh was the next witness. After being sworn in, Mr. Doragh introduced himself, noting that he has been a resident of Gateway for about 20 years. He has also been a member of the Board of Supervisors, on and off, for the last decade. For a considerable portion of the time period in which these events were occurring, he was the chairman of that Board. He advised that he was present at this hearing for a couple of reasons. He did not think there was any basis for objection to the removal of the 185 acres, but he did have serious objections to the notice provided. Mr. Doragh heard the previous discussion and understood the Hearing Examiner did not agree with them. However, he believed she would have seen a lot more residents, if that notice had said the DO amendments would impact the operation, maintenance and ownership of the roads within Gateway. The Notice said that the PUD and the DRI were being amended for the purpose of changing the boundary to exclude property, which was already in the City of Fort Myers. A well educated, thoughtful person reading that notice would be very surprised to hear that the ownerShip, the operation or the maintenance of their roads was at issue today. He did not think that it was too much to ask that a correct notice be given and that the hearing be continued so that anyone that wanted the opportunity to come and say so, can say what they think about those proposals. Mr. Doragh thought that the Hearing Examiner would find that this was a very active subject of conversation in Gateway, and has been since at least 2002. He mentioned that Mr. Ernst had given the Hearing Examiner a description, from his point of view, of what happened, but there was two sides to every story. From Mr. Doragh's side, going back to about 2006 or so, there has been effectively no communication between the District and WCI about this, because they had been essentially at an impasse for a long time. What they had been told, whenever they inquired, was that WCI was not in a position to deal with the maintenance needs of the roads and that was, ultimately, reflected in some sort of a punch list, which he had never seen. However, Mr. Doragh understood that the decision was essentially made not to pursue it, and the consequence was that the whole topic was kind of on hold. It has been stuck on hold for a very long time. If the residents had understood that WCI was proposing to take it off hold, then, there would be a lot more input in this hearing. The Hearing Examiner was given some information regarding gating and entrances to Gateway as an issue. He mentioned that the topic about reclassifying the roads was a red herring; there have been efforts over time by the residents seeking assurance that the roads in Gateway will be properly classified. The residents did not want to be put in the position of paying the District to maintain the roads, only to be told later that the District had no control over the roads. In 2002, they were "shocked" to find that an amendment to the DO had been adopted, through a process in which they had no participation, that stated the District was going to take over ownership and control Gateway Boulevard and Commerce Lake Drive (aka Griffin Drive). A provision was added to that DRI DO that said that those roads would be public roadways, which would not be gated. As a practical matter, gating these roads had never been feasible from an engineering point of view or from a public funding standpoint. Case DR12011-00004 20-Dec-11 - Page 38 Substantial portions of these roads were built with public bonds, restricting them (by gating the entrances) was probably illegal. Mr. Doragh indicated that gating had not been a real issue. What had been the real issue was the residents having to pay to maintain the roads that are open and used by everybody in the County, but not having the ability to control what happens on the roads. Therefore, the 2006 or 2007 Resolution basically stated that the position of maintenance and operation of these road was unclear, probably because the residents did not want to be put in the position of having to pay for the roads, while having no control over them. It was saying, either they will pay for it and would have control or they would not pay for it and would have no control. Therefore, these other topics came up in conjunction with trying to achieve one of those two goals. They had no success over time in getting to a point where they thought they could get any kind of reasonable control; DOT had been very persistent and very consistent about that view. The BOCC told them that they would work with them on traffic calming, and that was their view of the result of the management planning meeting. Because the process ended, from WCI's point of view, and they were the primary driver, nothing has really happened beyond that. Mr. Doragh noted that it was a long-standing issue and it was on the Hearing Examiner's plate because she was being asked to make modifications to the language. The residents agree with some of the modifications. For instance, the Applicant was proposing to delete the language that drove them crazy from 2002, but some of the other modifications were not as clear, in Mr. Doragh's opinion. With regard to Ms. Montgomery's effort to give the history during the hearing and make some further changes, Mr. Doragh noted that he rather be in the position where they could look at the real changes before they commented. Also, he mentioned that they would not have been at this quite so late if they had any idea that this issue was on the table. They had no idea; he just found out this morning. At this point, the Hearing Examiner wanted to know who was he referring to by "we." He responded that it was the residents. Once the notice came out about this hearing, there was a lot of email traffic and phone calls asking what it was about. Mr. Doragh's understanding was that people were told that the point of the hearing was to handle the release of the acreage from the DO. He was sure that there were other kinds of conversations, but that was what people were basically told it was about. That was essentially what the notice said, too. The residents never received any information from WCI or any other source that operation, ownership and maintenance of the roads was at issue or any condition relating to those terms. That was the language that the Hearing Examiner was being asked to modify. It had to do with who owns it, who operates it, and who maintains it. Mr. Doragh thought that there had to be a fair chance for people to review what was being proposed on those topics, and then give her comment on the ultimate proposal. He only had a brief chance to see the language that was submitted today, and he shared the concerns that Mr. Pires had expressed. Also, he objected to there being any language in the DO, which stated that the District was supposed to take ownership or maintenance of roads, which were the main roads in Gateway. Ms. Montgomery mentioned that she added that in because that was what she thought they wanted from her telephone conversations and from Mr. Pires letter. She was happy to take Case DR12011-00004 20-Dec-11 - Page 39 that out, since she had misunderstood what their problems were. Then, Mr. Doragh explained that the relationship with WCI had been cooperative, in the past, but of late it has not been. Hopefully, they would get back to that kind of relationship. The residents had taken some segments since starting down a path that no longer seemed to apply. He agreed with Mr. Pires that it should be clear that there was expectation or an intention that the segments of these roads that the District controlled, ultimately were going to be dedicated to the County, as well. The Hearing Examiner indicated that Mr. Jacob, Mr. Pires and Ms. Montgomery were going to work on language for that. If Mr. Pires wanted to involve him into his end of the loop, then, Mr. Pires and Mr. Doragh could talk about it in another room. Mr. Doragh understood about the Hearing Examiner being reluctant to deal with this, but he thought that, as long as it was going to end up in her Recommendation, there needed to be a chance for people to see the language and to come to testify about it, if they had testimony to give. They were facing a time where WCI was nearing the end of the development of the community. As a practical matter, the amount of property that they had left to sell in a market, as a company, was relatively small compared to what it was in the beginning. The roads have not been well maintained for a period of time. Just looking at the punch list, which was prepared to show the work that needed to be done for Gateway Boulevard, it was extensive and expensive. As a practical matter, the Applicant may be obligated under the DO, but the County's practical ability to cause them to live up to those obligations, and their own ability to finance those obligations when they start having no product to sell, obviously there was a diminishing return there. Mr. Doragh thought that it was an important issue and he thought that the Hearing Examiner would find that there was a lot of interest in the community. At that time, the Hearing Examiner stated that she was going to have her ruling stand as far as the notice was required, whether or not this was going to be a problem. She did not need 50 people saying the same thing to get the point, and really did not need to see the room filled up with people that all want to make the same statement. However, Mr. Doragh thought that the Hearing Examiner will find it to be an important topic that should have been in the notice. The Hearing Examiner understood Mr. Doragh's concern, but with the people that had spoken there today, the whole issue had come out adequately and the point had been made. Therefore, the Hearing Examiner did not think that the hearing should be left open for Mr. Doragh to bring in all his neighbors to sit in the hearing room and stand up and say the same thing. At this point, Mr. Jacob wanted to clarify, once again, that the Amendment to the DRI DO with regard to Transportation Section 10 was not going to change anyone's maintenance responsibility, ownership's responsibility, or anyone's ability to do whatever they wish with the County as far as the roads are concerned. He was just clarifying that each party or stakeholders have certain rights with regard to the roads. He did not believe that statement needed to be said, but they were going to say it in a generic way, so that everybody would be okay with it. He advised that it could be removed (stricken) completely, and it would not change the relative responsibility of the parties. Mr. Jacob asked for Mr. Pires to share the information with anyone, but as Mr. Doragh said, if people had known this had something to do with the roads and the changes of responsibilities, they would have been here. Unfortunately, this was not about the roads and Case DR12011-00004 20-Dec-11 - Page 40 so with that statement said, they would not have been here anyway. Therefore, holding the hearing open to tell more people about a provision that had nothing to do with the actual responsibility or maintenance of the road, will be a waste of everyone's time and energy because they would not show up anyway, if they get the right information. At that moment, Margaret Fineberg was called upon. Before Ms. Fineberg introduced herself for the record, the Hearing Examiner inquired about any other Public Participation Forms from members of the public that wanted to speak and had not given her the form. Since there were no others, the Hearing Examiner indicated that Ms. Fineberg was the last member of the public that was going to be speaking. Next, Ms. Fineberg introduced herself for the record, and indicated she had been sworn in. She was on the Board of Supervisors for the Gateway Services COD. However, she wanted to speak as a member of the public, and not as a representative of the COD. She lives in Stoneybrook at Gateway and she was on the Board there, also. She noted that she was probably going to throw a "little monkey wrench" into the words because she had many phone calls and many emails with residents that were concerned. Starting Monday, the residents realized this was happening and they started reading the language. The residents were the ones that funded and were represented by the COD. Up until the language changed in this, the residents always had the option of being able to take over the ownership of all of the roads, but, once this language got changed, that option was taken away. The roads that WCI owned can only revert to Lee County. There were a lot of people, even the ones that had to leave earlier, were glad that she was going to speak to that item. The language needed to be clear that the Services District did maintain the right to take over those roads, if they chose. They can revert to either Lee County or the Services District, as the operating entity into the future. Then, Mr. Jacob noted that it was going to be clear in his revisions. Ms. Fineberg stated that the way that this language read, it sounded like Lee County was the only choice; that there was no other choice. The Services District, and many of the residents that were there, wanted to keep that option. The Hearing Examiner reiterated that it was going to be cleared up and wanted to know if there were any other concerns. Consequently, Ms. Fineberg mentioned that there were two other things. As far as the 185 acres, she did not think that anybody was disputing the relocation of the boundary line. She wanted to say that the email blast that went out to the residents from Ms. Richardson said just the boundary line was being relocated. Nobody was notified of any other language changes in the DRI, which she thought was unfortunate. Ms. Fineberg would like for the Hearing Examiner to reconsider allowing people to speak, once the language changes are finalized. Ms. Fineberg thought that the Hearing Examiner would hear what she had heard today from the few people that did show up; that it was okay because they did not want to own the roads. However, she would also hear a lot from the other side that wants to retain the right to own the roads. Mr. Jacob reiterated that ownership and the right to control the roads had nothing to do with the subject case or the provisions that they were changing. Ms. Fineberg responded that, if the only thing the Hearing Examiner could hear and rule on was the 185 acres, why were they even talking about the other language. It should go Case DR12011-00004 20-Dec-11 - Page 41 through the proper channels, and if this hearing was not the proper channel, then it should not even be a part of this hearing. Mr. Jacob wished it was not, but, unfortunately, somebody tried to clean up previous provisions that had not been clear when adopted. As Montgomery had indicated, there were only two cases in which the amendments had to be done this way- Gateway and Gulf Harbour. Because of this unique process, some changes in the past were not properly done, and the Applicant was trying to clarify those matters by simply making whole sentences out of partial sentences. Those minor changes have resulted in people believing the County was changing the rights, responsibilities and ownerships of roads. However, Mr. Jacob indicated that was not in the language, was not intended to be in the language, and, after he was done with it, there would be nothing to give rise to that suspicion. Everybody was talking about opening the hearing back up for more residents to come in, just like the majority of the members of the public had done, to talk about something that had nothing to do with what the County and the Applicant were doing in this case. The Hearing Examiner told the members of the public that she understood why they brought it up, because they thought certain rights were going to be determined, and this would be the only time they could talk about it. However, she indicated that the Applicant and County were simply revising the language to restate the obvious; they were revising it to be clear that "nobody's toes were being stepped on." This was the appropriate time to make the revision to the provision, unless the Applicant wanted to withdraw it and bring it back later as a new NOPC. Ms. Montgomery stated they would not do that. Ms. Fineberg stated that the concerns held by the other group was that the language had to say the roads owned by WCI can convert either to Lee County or to the District. Ms. Montgomery indicated that was the language she had distributed. Mr. Jacob reiterated that they tried to over clarify, and asked the Hearing Examiner to have her office send him the email addresses of the public. He would send them a copy of the revised language, so the people could see exactly what was intended and how it was being cleared up. Hopefully, by his office doing that, the public will not inundate the BOCC with this matter. He understood their concerns, but assured them that was not what the Applicant or the County was trying to do. Maybe the emails will alleviate their concerns. Ms. Fineberg advised that her last concern would not affect her personally, but she was looking at the setback change to 40 feet at the landfill property line. If a person did not live there now, they could not understand that the landfill is a 1OO-foot tall mountain. She thought it was crazy to place somebody's private property 40 feet from the landfill boundary. She reiterated she lived in Stoneybrook, where they were lucky enough to have a visual buffer. Otherwise, they would be staring at that 100-foot-high mound of wastes. Despite what they were saying about the landfill possibly ending up as a park, that land was never going to be used for anything recreational. Ms. Montgomery responded that people were recapturing and using old landfills. Ms. Fineberg thought that it would be very difficult to do that with this landfill, because no lime had been used on the wastes. The owner was still capturing the gases from it now, and burning them off, because the gases were so dirty that they could not be used to create energy. She reiterated that, in her opinion, nobody was every going to take that mount of garbage and make it into something pretty. At best, it will be a green hill. Case DR12011-00004 20-Dec-11 - Page 42 She was thinking of the people that might move into housing that would be constructed next to that landfill property line. There would be less buffer between those properties than there was between the Stonebrook properties and the landfill, and she was concerned about protecting those people. In response to Mr. Jacob's question, Ms. Fineberg indicated that she lived on the other side of the lake in Stoneybrook. When she first bought in that community, she lived nearer the landfill and had the "pleasure" of smelling the landfill on more than one occasion. Mr. Jacob wanted to know how often she smells it now, and she stated not very often, unless they were having problems with the flare. The owner has done a better job containing the smell, since it has been capped. At that time, the Hearing Examiner inquired if there were other members of the public who desired to speak; there were none. She then inquired if Staff or the Applicant had any closing comments they wanted to make; there were none. The Hearing Examiner announced that she would hold the record open until Wednesday, November 30th , at 4:30 p.m. to allow Staff, the Applicant and Mr. Pires to work on the language for the DRI DO. Ms. Montgomery wanted to know if Mr. Jacob could send it to the Hearing Examiner, then she would not need to submit it downstairs, if an email would be accepted. The Hearing Examiner explained that if there was a situation where Staff and Applicant were working together with a member of the public on this and there was any disagreement, the Hearing Examiner always gave the different groups the opportunity to file their own language, if they could not agree with what Staff was recommending. Ms. Montgomery understood. It was reiterated that the record was left open for clarification of the language in Section 3.10 and Map H to show the conservation labels. The hearing was then closed. VIII. OTHER PARTICIPANTS AND SUBMITTALS: ADDITIONAL APPLICANT'S REPRESENTATIVES: 1. Barry Ernst, clo WCI Communities, Inc., 24301 Walden Circle Drive, Bonita Springs, Florida 34134 2. Stephen Leung, clo David Plummer & Associates, 2149 McGregor Boulevard, Fort Myers, Florida 33901 ADDITIONAL COUNTY STAFF: 1. Susie Derheimer, Lee County Environmental Sciences, P.O. Box 398, Fort Myers, Florida 33902 2. Andy Getch, Lee County Department of Transportation, P.O. Box 398, Fort Myers, Florida 33902 3. Michael Jacob, Assistant County Attorney, P. O. Box 398, Fort Myers, Florida 33902 Case DR12011-00004 20-Dec-11 - Page 43 4. Clay Simmons, Lee County Department of Transportation, P. O. Box 398, Fort Myers, Florida 33902 PUBLIC PARTICIPATION: A. THE FOLLOWING PERSONS TESTIFIED OR SUBMITTED EVIDENCE FOR THE RECORD AT THE HEARING (SEE SECTION VI!.): 1. Margaret Fineberg, P.O. Box 60274, Fort Myers, Florida 33906 (Boundary Change) 2. William Fish, 10511 Bella Vista Drive, Fort Myers, Florida 33913 Against: 1. Pete Doragh, 12071 Wedge Drive, Fort Myers, Florida 33913 2. Margaret Fineberg, P.O. Box 60274, Fort Myers, Florida 33906 (Road Language Change) 3. Anthony P. Pires, Jr., 3200 North Tamiami Trail #200, Naples, Florida 34103 4. Tamara Sendewicz, 12779 Stone Tower Loop, Fort Myers, Florida 33913 5. Rod Senior, 11190 Bent Pine Drive, Fort Myers, Florida 33913 6. Ed Tinkle, 11180 Bent Pine Drive, Fort Myers, Florida 33913 General: NONE B. THE FOLLOWING PERSONS SUBMITTED A LETTER/COMMENT CARD, OR OTHERWISE REQUESTED ACOPY OF THE HEARING EXAMINER RECOMMENDATION: NONE Against: NONE General: 1. Albert Abdo, 13240 Griffin Drive, Fort Myers, Florida 33913 2. Silvio Di Folco, 11760 Pinewood Lake Drive, Fort Myers, Florida 33913 3. Richard Owens, 11730 Pinewood Lakes Drive, Fort Myers, Florida 33913 4. Ed Sichel, 12898 Vista Pine Circle, Fort Myers, Florida 33913 5. Richard Steiaman, 11711 Pinewood Lakes Drive, Fort Myers, Florida 33913 Case DR12011-00004 20-Dec-11 - Page 44 IX. LEGAL DESCRIPTION: See Exhibit A (scanned legal description). X. UNAUTHORIZED COMMUNICATIONS: Unauthorized communications shall include any direct or indirect communication in any form, whether written, verbal or graphic, with the Hearing Examiner, or the Hearing Examiner's staff, any individual County Commissioner or their executive assistant, by any person outside of a public hearing and not on the record concerning substantive issues in any proposed or pending matter relating to appeals, variances, rezonings, special exceptions, or any other matter assigned by statute, ordinance or administrative code to the Hearing Examiner for decision or recommendation. . . . [Administrative Code AC-2-5] No person shall knowingly have or attempt to initiate an unauthorized communication with the Hearing Examiner or any county commissioner [or their staff] .... [LDC Section 34-52(a)(1), emphasis added] Any person who knowingly makes or attempts to initiate an unauthorized communication ... [may] be subject to civil or criminal penalties which may include: [Section 34-52(b)(1), emphasis added] Revocation, suspension or amendment of any permit variance, special exception or rezoning granted as a result of the Hearing Examiner action which is the subject of the unauthorized communication. [LDC Section 34-52(b)(1 )b.2.]; OR A fine not exceeding $500.00 per offense, by imprisonment in the county jail for a term not exceeding 60 days, or by both such fine and imprisonment. [LDC Section 1-5(c)] XI. HEARING BEFORE LEE COUNTY BOARD OF COUNTY COMMISSIONERS: A. This recommendation is made this 21'( day of December, 2011. Notice or copies will be forwarded to the offices of the Lee County Board of County Commissioners. B. The original file and documents used at the hearing will remain in the care and custody of the Department of Community Development. The documents are available for examination and copying by all interested parties during normal business hours. C. The Board of County Commissioners will hold a hearing at which they will consider the record made before the Hearing Examiner. The Department of Community Development will send written notice to all hearing participants of the date of this hearing before the Board of County Commissioners. Only participants, or their representatives, will be allowed to address the Board. The content of all statements by persons addressing the Board shall be strictly limited to the correctness of Findings of Fact or Conclusions of Law contained in the recommendation, or to allege the discovery of relevant new evidence which was not known by the speaker at the time of the earlier hearing before the Hearing Examiner and not otherwise disclosed in the record. D. The original file containing the original documents used in the hearing before the Hearing Examiner will be brought by the Staff to the hearing before the Board of County Case DR12011-00004 20-Dec-11 - Page 45 Commissioners. Any or all of the documents in the file are available on request at any time to any County Commissioner. XII. COPIES OF TESTIMONY AND TRANSCRIPTS: A verbatim transcript of the testimony presented at the hearing can be purchased from the court reporting service under contract to the Hearing Examiner's Office. The original documents and file in connection with this matter are located at the Lee County Department of Community Development, 1500 Monroe Street, Fort Myers, Florida. DIANA M. PARKER LEE COUNTY CHIEF HEARING EXAMINER 1500 Monroe Street, Suite 218 Post Office Box 398 Fort Myers, Florida 33902-0398 Telephone: 239/533-8100 Facsimile: 239/485-8406 Case DR12011-00004 20-Dec-11 - Page 46 LEGAL DESCRIPTION (GATEWAY DRI) A TRACT OR PARCEL OF LAND LYING IN SECTIONS 1 AND 2, TOWNSHIP 45 SOUTH, RANGE 25 EAST, SECTION 31, TOWNSHIP 44 SOUTH, RANGE 26 EAST, AND SECTIONS 5,6,7,8, 17, 18, AND 19, TOWNSHIP 45 SOUTH, RANGE 26 EAST, LEE COUNTY, FLORIDA, BEING FURTHER BOUNDED AND DESCRIBED AS FOLLOWS: BEGINNING AT THE 4" CONCRETE MONUMENT MARKING THE SOUTH ONE QUARTER CORNER OF SECTION 1, TOWNSHIP 45 SOUTH, RANGE 25 EAST, LEE COUNTY, FLORIDA; THENCE S,89'56'14'W" ALONG THE SOUTH LINE OF SAID SECTION 1, FOR 84,66 FEET; THENCE N26"43'12"E, FOR 22,55 FEET; THENCE N36'03'29"E., FOR 110,'17 FEET THENCE N29'37'59"E, FOR 74,56 FEET; THENCE NA1"39'23"E" FOR 58,11 FEET; THENCE N,33'20'13"E" FOR 100,09 FEET; THENCE N,84"28'07"E" FOR 96,88 FEET; THENCE N62'18'41"E" FOR 75,66 FEET; THENCE NA1"3T12"E" FOR 113,91 FEET; THENCE N.28"38'02"E" FOR 52,58 FEET; THENCE N,Q6"28'39"E" FOR 89,64 FEET; THENCE N,01 "06'25"E" FOR 72,22 FEET; THENCE N,01 '51'58'W, FOR 84,51 FEET; TelENCE N,04'OO'45"E" FOR 156,87 FEET; THENCE N,08'10'35"E" FOR 59,60 FEET; THENCE N,QO"41'27"E" FOR 100,52 FEET; THENCE N,03'51'37"E" FOR 50,88 FEET; THENCE N,89'30'23"w', FOR 21.48 FEET; THENCE N.70'11'58'W" FOR 36,91 FEET; THENCE N,30'38'29"W" FOR 33,49 FEET; THENCE N,21 "13'45"W" FOR 45,96 FEET; THENCE N,09"33'45'W" FOR 57,83 FEET; THENCE N,00"20'33"E" FOR 62,72 FEET; THENCE N23'32'36"E" FOR 41,70 FEET; THENCE N,22"16'47"E" FOR 71.77 FEET; THENCE N,14'23'40"E, FOR 41,24 FEET; THENCE N,19"02'35"E" FOR 14,16 FEET; THENCE N05"30'03'W" FOR 66,59 FEET; THENCE N,02'26'40"E, FOR 67,89 FEET; THENCE N,44"18'16"E" FOR 18,67 FEET; THENCE N,20"19'56"E" FOR 15,12 FEET; THENCE N.42"35'01"E" FOR 53,52 FEET TO A POINT ON A CURVE; THENCE NORTHERLY 39.03 FEET ALONG THE ARC OF A NON-TANGENTIAL CURVE TO THE LEFT HAVING A RADIUS OF 200.D2 FEET THROUGH A CENTRAL ANGLE OF 11°10'44" AND BEING SUBTENDED BY A CHORD WHICH BEARS N.19'57'29"E, FOR 38,96 FEET: THENCE N,14'22'0T'E., FOR 40,14 FEET; THENCE 1'139"37'09"[, FOR 51.21 FEET; THENCE N,60"34'25"E" FOR 60.78 FEET: THENCE NA9'37'19"E" FOR 30,84 FEET; THENCE N35"Ol'01"E" FOR 139,86 FEET; THENCE N.33°17'48'E" FOR 79.04 FEET; THENCE N1TOO'34'W, FOR 21,29 FEET: THENCE N05'58'51"VIJ, FOR 95.82 FEET; THENCE N25'45'44'W" FOR 33,77 FEET, THENCE N 11'06'54'W" FOR 92.16 FEET; THENCE N.05'53'01'W, FOR 101.70 FEET: THENCE N.OO"'22'30"E., FOR 1 09, 12 FEET; THENCE N,OO'46'03'W. FOR 56.29 FEET; THENCE N 20'25'22''E., FOR 51.68 FEET: THENCE N06°14'49"E, FOR 51,84 FEET; THENCE N02"26'14'W" FOR 36.59 FEET: THENCE N03"43'04"E, FOR 94.21 FEET, THENCE N 11"54'08"E, FOR 37,50 FEET: THENCE N,08'44'40"E" FOR 13408 FEET PAGE j OF (!.(!0~;:-"i)~0L)iF;) (,3I'd,~,1Il PI~"'J'<C' SD:\ DRl &. (ja(~\>:,,'!' iD',mi'_' SliP EXHIBIT A ([\'."'\'DRI U:(j,\i. THENCE N.01 "49'49"E., FOR 38.11 FEET; THENCE N.16'36'49"W .. FOR 29.35 FEET; THENCE N.2r02'49'W., FOR 37.12 FEET; THENCE N.29"44'39"W., FOR 32.04 FEET; THENCE N.18"12'26"W., FOR 32.71 FEET; THENCE N.07"32'51'W, FOR 52.30 FEET; THENCE N.02'05'57"E., FOR 97.03 FEET; THENCE N.03'15'37"E., FOR 70.14 FEET; THENCE N.14"11'30"E, FOR 96.75 FEET; THENCE N.06"54·3'1"E, FOR 1'16.34 FEET; THENCE N.00"38'31"W .. FOR 29.36 FEET; THENCE N.05"47'10"E .. FOR 70.71 FEET THENCE N.81"06'27"E., FOR 46.60 FEET; THENCE N.14'30'22"E, FOR 48.91 FEET; THENCE N12"47'54"E, FOR 24047 FEET; THENCE N05"46'11"W. FOR 71.32 FEET; THENCE N.12'09'56"W., FOR 77.36 FEET; THENCE NOW23'56"E., FOR 60.08 FEET; THENCE N.03'30'57"E .. FOR 57.81 FEET; THENCE N.10"28'55"E., FOR 221.23 FEET; THENCE N.05"55'39"E., FOR 100.64 FEET; THENCE N.08"30'29"W., FOR 77.08 FEET; THENCE N.04"11'20"W., FOR 341.65 FEET; THENCE N.17"51'57"W., FOR 72.48 FEET; THENCE N.25"44'31"W .. FOR 10840 FEET; THENCE N.17"42'01'W, FOR 68.03 FEET; THENCE N.06'06'37"W .. FOR 26.74 FEET; THENCE N.03'34'02"E., FOR 47.09 FEET; THENCE N.02"45'49"W., FOR 27.98 FEET; THENCE N.04"20'55"W .. FOR 56.38 FEET; THENCE N.OO"02'40"E., FOR 32.13 FEET TO A POINT ON THE NORTH LINE OF THE NORTHEAST ONE QUARTER OF SAID SECTION 1; THENCE S.89"57'20"E., ALONG SAID NORTH LINE. FOR 1,797.69 FEET TO THE COMMON CORNER OF SAID SECTIONS 1, 6. AND 31; THENCE N.OO'56'23'W. ALONG THE WEST LINE OF SAID SECTION 31. FOR 73.83 FEET TO A POINT ON THE WESTERLY LINE OF THE LANDS DESCRIBED IN OFFICIAL RECORD BOOK 2472, PAGE 1361, OF THE PUBLIC RECORDS OF LEE COUNTY, FLORIDA; THENCE ALONG SAID WESTERLY LINE THE FOLLOWING TWO (2) COURSES' 1. THENCE S.37'57'04"E .. FOR 2.37090 FEET; 2. THENCE S.33"59'OO"E., FOR 833.70 FEET TO A POINT ON THE NORTHERLY LINE OF THE LIINDS DESCRIBED IN OFFICIAL RECORD BOOK 2509, PAGE 656, OF SAID PUBLIC RECORDS; THENCE NA3"52'31"E., ALONG SAID NORTHERLY LINE, FOR 3,55212 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF STATE ROAD 82 (200 FOOT WIDE), ALSO KNOWN AS IMMOKALEE ROAD. THENCE ALONG SAID WESTERLY LINE THE FOLLOWING TWO (2) COURSES: 1. THENCE S.46'06'51"E., FOR 2,810.39 FEET TO A POINT ON II CURVE: 2 THENCE SOUTHEASTERLY 1,874.78 FEET IILONG THE ARC OF II NON- TANGENTIAL CURVE TO THE LEFT HAVING A RADIUS OF 5,827.22 FEET THFWUGH A CENTRAL ANGLE OF 18"26'01" AND BEING SUBTENDED BY A CHORD WHICH BEARS S.55'20'03"E. FOR 1,866.70 FEET TO A POINT ON THE Ei'.ST LI NE OF THE WEST ONE HALF OF SAID SECTION 5 THENCE SOQ'05'53"E,. {,LONG SAID EIIST LINE. FOR 2.271.81 FEET TO THE COMMON ONE QUARTER CORNER FOR SAID SECTIONS 5 AND 8; THENCE S.01'01'22"E,. P.LONG THE EAST LINE OF THE WEST ONE HALF OF SAID SECTiON 8, FOR 3,028 35 FEET: THENCE N89'34'"14T. FOR 605 03 FEET. THENCE SOl'01'22"E, FOR 1.800 10 FEET; THENCE S.89'34'14'W .. FOR 605.03 FEET TO A POINT ON THE EAST LINE OF THE WEST ONE HAlle OF SAID SECTION 8: THENCE S01"01'22"E .. ALONG SAID EAST LINE, FOR 500.03 FEET TO THE COMMON ONE QUARTER CORNER OF SAID SECTIONS 8 AND 17; THENCE S89'34'35"l!V P,LONG THE COMMON LINE OF SAID SECTIONS 8 AND 17, FOR 702.29 FEET TO A POINT ON THE SOUTHVlJESTERL Y LINE OF THE LANDS DESCRIBED IN OFFICIAL RECORD BOOK 1606. PAGE 1275, OF SAID PUBLIC RECORDS: THENCE N37'56'26"VIJ ALONG SAID SOUTHWESTERLY LINE, FOR 486.13 FEET; THENCE S88'49'36'W FOR 140.73 FEET; THENCE S.6n S'53'W. FOR 145.49 FEET: PAGE ~ or 7 (:.'':ibS'05!H '" 'II 'n !-cb':m 1""';~iY~ SDA I mJ .':: '-iat~,\~yP;!D\()(I(j:; S[;j'\,':YIil~ S~I\ 1~~"n""";lip,i('l1"'(Jate,\"a) DR, ',;,!:i(:(} U! 0_\ ow.; (,,,VY:)R,' U:(;J\!..<l<x.\ THENCE S.48'08'38"W" FOR 154,13 FEET; THENCE S,56'44'43"W" FOR 897.10 FEET; THENCE N.35°59'17"W .. FOR 858,81 FEET; THENCE S.54°00'43"W., FOR 2,533.72 FEET: THENCE S.00'53'33"E, FOR 955.84 FEET: THENCE N,89'21'52"W., FOR 316,92 FEET: THENCE S.OO"53'33"E, FOR 310,37 FEET; THENCE S,35'59'18"E., FOR 1.803.06 FEET TO A POINT ON THE NORTHERLY RIGHT OF WAY LINE OF DANIELS PARKWAY AS DESCRIBED IN OFFICAL RECORD BOOK 3029, PAGE 1888 OF SAID PUBLIC RECORDS; THENCE S.54"00'43"W.. ALONG SAID NORTHERLY LINE, FOR 4,727.17 FEET TO A POINT ON THE WEST LINE OF THE NORTHWEST ONE QUARTER OF SAID SECTION 19; THENCE N,OO"54'58'W, ALONG SAID WEST LINE, FOR 1,233.06 FEET TO THE COMMON CORNER OF SAID SECTIONS 18 AND 19; THENCE N.00"53'35'W .. ALONG THE WEST LINE OF THE SOUTHWEST ONE QUARTER OF SAID SECTION 18, FOR 2,643.95 FEET TO THE WEST ONE QUARTER CORNER OF SAID SECTION 18; THENCE N.00"39'01'W .. ALONG THE WEST LINE OF THE NORTHWEST ONE QUARTER OF SAID SECTION 18. FOR 2,647,35 FEET, TO THE COMMON CORNER OF SAID SECTIONS 7, 12, AND 18; THENCE N,00"56'48"W" ALONG THE COMMON LINE OF SAID SECTIONS 7 AND 12. FOR 2,645,34 FEET TO THE COMMON ONE QUARTER CORNER OF SAID SECTIONS 7 AND 12; THENCE S,89'55'12'VI/., ALONG THE NORTH LINE OF THE SOUTHEAST ONE QUARTER OF SAID SECTION 12, FOR 2,523,17 FEET TO A 4" CONCRETE MONUMENT STAMPED LB F642 (SAID MONUMENT LiES N.89'55'12"E, A DISTANCE OF 75.31 FEET FROM A 4' CONCRETE MONUMENT STAMPED LB 642 MARKING THE CENTER OF SAID SECTION 12); THENCE N,01'05'54'W .. FOR 2,646.28 FEET TO A 4" CONCRETE MONUMENT STAMPED LB F642; THENCE S.89'38'30"W .. FOR 69.19 FEET TO THE POINT OF BEGINNING OF THE PARCEL DESCRIBED HEREIN; CONTAINING 108,248,420 SQUARE FEET OR 2,485.04 ACRES, MORE OR LESS. BEARINGS ARE BASED ON THE SOUTH LiNE OF THE SOUTHWEST ONE QUARTER OF SECTION 1, TOWNSHIP 45 SOUTH, RANGE 25 EAST, AS HAVING AN ASSUMED BEARING OF S,89'56'14"W. PREPARED BY RWAINC, FLORIDA CERTIFICATE OF AUTHORIZATION No L86952 DENNIS A MILLER DATE PROFESSIONAL SURVEYOR AND MAPPER FLORIDA CERTIFICP,TE No, LS 5626 ('" \ i..; l' PAGE 3 OF -: THIS IS NOT A SURVEY L>1.Z L.41 lDO.OS' -1 :"4' 3.3.77' ~ ___!:2_____ l--,-N~'8=4~-2~S~'O:7~-:E_~-,-9~5.~S:8_'--! ,---.:L~,.:2'---l_.:.:Nl ,'06'54'\'1' 92.16' i-_~La=-_-I-,--N::.::'6Z 1 I..~i:'E'--'----.:7~5.:.:,6~6~·_' i-,--L~':3'---l_::N:C:5'~5:3~'O~1_":W_~ Ef 101.70' L36 ~;_:9_ _i-~N~'4:'~'O~-7~'~1~2'~'E,--+,--t1:3.91' L'~4 NCO'22'.30~E 109,12' UO N2S\38'CZ"E 5258', I L45 ~OO'46'03"W 56.29' i--=---i--'-~=-:::'''- ._l-. _ _ _ _ ~ f-_L~-~'1-'--l_~N~'O~6~'2~8~'3~,9~":C_~!-~B:9,~6=4----!i f---.:L~4~6:""-l_~N~'2~O~-2:5~'2~2~"~E_+-..::.5~"~6=8_·--! L47 ~06'14'49"E 5L84' [..28 -1.27 L26 L25 'l24 /-:"2 L23 V a,~ 12'-';, II " i...20 .1: '...19 '_"""_1_~r'~'7~O~'1~'_'5:8:"~'/f___ '_'_,9_,_-_. :..1"/---- :..Hi L15- - .' ",_+.1 " , c ~. L~4-- 4- .70' s I .2'- . NH32'36'E LU o \-'>0' 300' ~"'-'---I--~ "22'10'4/"'[ 7'.77' :".12- ,........--~ GRAPH:C SCALE ~~~(}_ ~ 1 ;·;3:~J-"~E--I-'--,-~·~,~,-·--! SOVTH LINE SO;,,',dW;:S" lit.. I'~ )00' s::cr:or, L27 ;'<"-;;'02'35-::: -:"()\'i"lSHiP .1.5 SO\.,Tf.', , - RA,,::;E 25 ::.457 , ... 7 Li ________ l.l __ _ MATCH LINE LEGEND: SEE SHEET 6 ~\ c.i',E I 3£[ ;"';~E :,:,2:.E ". ': ~lJRVE 1 SEE: C.u':';'/i: 7.\9:.1: WCI COMMUNITIES, LLC = 3vO' NOR;d LINE THIS IS NOT A SURVEY WEST _1~t::.......1 I ~O;?Tf-,EAST 1/4 SEC~'ON 3'~ ~ I SECTION :~ SB9'ST20"E '797.6S' L83 36 ~ ,6 I 1----- LINE T,18LE I I UNE BEAR,,<G I I LENGTH L7C- L~9 N03'43'04"[ 942;' I ~75 L50 Nl1'54'08"<: 37.50' I I 1 L51 NOS'44'"C"E ',34.08' I L52 NO','A9'49"E 38., j' L53 i ;-i1tY36'49''W 29.35' , ~~--- l N2T02'49"\V 3r, ,2' !...73 i L55 N29' 44'39 '\'{ 32:.04' 1 L56 N1S'12'26'\v 32_71 ' , [ L57 NOT32'Sl 'W 52,30' , LS8 N02'CS'S7"E 97.03' i I L59 NCY,S',37"C 7C.l~· L7C l50 N14'11';;O~£ 96.75' L59----- Lai NOB"54'31"E 1 i 5,,34' l..68 L62 NOO'38'31"W 2936(lHl L63 N05'47'10"£ 70.71' L64 N81'CS'27"[ _-,==-=--=--+-,':.:6:.:.60 ........ j Las N14'30'22"[ 48,9~ . L56 N:2'47'S4'"E l67 ;":05'46'11'"\11 ~,"53 -i..02 L5B ;-':'t2'09'58"W 77,36' N L59 NOo'23'5B"E 60.08' L70 L 71 L72 N03'JO'57"£ N~O'2a'55.·'[ N05'55'39"[ !----+--.:.:-=--------+I'-7~7~_O-,8. ----, ....i.I · 57.81' 22'-2.3' 100.6.l,' W -t--c s L73 NOS' 30'29"W I) ;.:.0- ,ISO ! ;74 ;\04'; "20"'Ii , 341.55' l ..=,,= GRAPHIC SCoI,lE '-'T5~'57"W I--:;;-~_' _ ! 7V1S' ;>. 3CC' _" V'S 1 ,"'25'4t;31~'N ,·::to.'"{)" L77 ; Nl7"42'Ol"'W oB.eS I LIE ~06·.?~?_:~_~: ___ _ 1- L79 \(;3'34'02-"[ 47 :=:9' L.._- 83 1 - LEGEND; C': : ~~f~,:~ ~E~E~I;ZU~~~l_~"B'-~ DlXTAlNC~=~oo CO:--<SULTING CivuEnP=ing ""n: 9/;3/';) 300' WCI COMMUNITIES, LLC A. "" f V.J... A Survej-1n.g & MEpping ;~5(: ~'t$ :ivoo: ",," HL£ GATEWAY DRI Fort Ml~'~_ F¢:'.l;)3~~: (rn)Z's-"~.; FAX: ,"S) :iTo-".-<'~ -"m:zc".~,,!·",\'J.= bc~~"D~"'--. -I PTN SKETCH OF DESCRIPTION F:;{mC<:<1~W~o: /l;.t:ra,.:a,.". ::515'03 L.S&'<: THiS is NOT A SURVEY~ s ~~,(!. GR,;P,.;,C SCALE 1"" 12CC' OR :ZS0S. PC 656 i j - - . . ____ - ____ 1-- _____ - _. ___ , _ - . - - - - - ! CURVE TABLE I cuRVE LENGTH RADiuS DELTA CHORD SEARING CHORD ! _:"",-"-+-..:'S:.'''4=-.'.:.S'-·+-S''.''''''.''2::.'_'-.J-+c.-_-_-_-,:.8.:'~2::.6"'~O~"~~~j~~.:.S.:.55.:'-20::'~03~·~E~~~~~18~6~6~.7=O=,j ~AST UNE. W::S-: 1/2 SECTION 5 COMMON 1/4 CORNER: SECTIONS 5 & 8-~ -- - ---- - - ~,.-- - - 1500.10' [AS' .J~E WES" HALF L37 ;..88 .; ~ -----. 605.0.3' S:::CT:ON 8____ " COMMON liNE S.'::(TI0',5 S & • 7 "; S;}V'HI'/E:STERL. Y i.L\j~ JR 1\)05, FG i 275 --; LEGEND: '-, '" _i~';::: 1 SE::- :..:'E :AB_E GR ~ GCF:CIA'_ ~c.C{)R:: 800-< ::: '" CUR' S;:[ C;RVE 7"2~: PC -~ .=>,V::;:: WCI COMMUNiTIES, LLC 004 NOT A SURVEY ,----- T \.I~E 31C . .17' ;23.3.05" 4" CQ:>!GRETE ~,m·~;J.v,E!..JT LB 542 C;;:t\,ER SEC:ION 1/. CQI,;MQN L;N[ SEC7'ONS 7 & 12 COMMON CORNER <t:I SECTIONS ~ I 7.12, & '8~g , 12" 7 _ _ _ _ _ _ _ _ _ _ " - ] - - - - - - - - - - -13 16 ..........-L9 7 ,,,+1,1,_= " --- ,~ ,-. '" o Z \l"RTl-'''''::"$T 1 / 4 "SEC'TiG~ 1 d Lse. ·-.........-L99 s ():~ ~ 2.c>:ClI'L ;';:-::;CRD 8-:)0" PC PAGE WCI COMMUNITIES, LLC . 200' T'L' GATEWAY DRI SKETCH OF DESCRIPTION ~'~f~SER: 0003 GWYDRj m >< :I: ijj ::; OJ :~~ "i .~ 3- JQ ~: '" " ~ :~ !;.: 1" ' , , c" ( ",' " li" ," II!!!! if!! ;, 1 ~ ,1"" ,, j; l , i"}. ~" g~ "I ,I , !;.- ji, g~ ~~I~ , , 'I , I , t;'" i ~~, ,, , i " c ~ . :?%: !j ~~~ .~" ,1 '0 1'" " J'; 1;;; i"~ ,,I, , , ~I~ ,;, Ii~ 11 ~I::~i;~ 'J; ,I,,~ ~::::~ ~" " :l '" ." '" " " ., ,. :0:: a. < , , '" N :- <0 z ~ • o , , r:W.'I/~tcIS<..r."'>I: WCI COMMUNITIES, INC GA TEWA Y PUDIDRI REVISIED MAP H I EXHIBIT "8.2" Nope
Pages to are hidden for
"OFFICE OF THE HEARING EXAMINER_ LEE COUNTY_ FLORIDA "Please download to view full document