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BCC Minutes 09/25-26/2012 Closed Session (#12B-Hussey) Patricia L. Morgan From: BradleyNancy <NancyBradley@colliergov.net> Sent: Wednesday, March 01, 2017 3:19 PM To: Patricia L. Morgan Cc: Greene, Colleen; Colli, Marian Subject: FW: Hussey Mandates Attachments: Mandate Frands.pdtMandatp - Sean.pdf ' ! From: N. VVonds [nnaiko� ng�w.coml Gregory Sent: WedMarch 01, 2017 3:11 PM To: GreeneColleen; BradleyNancy Subject: Hussey Mandates For our file. Best regards, /7 N. �� Jv ~y�g0�V 0.. Board Certified Civil Trial Lawyer Board Certified Business Litigation Lawyer Woods Weidenmiller Michetti Rudnick&Galbraith, PLLC 9045 c,irada ()te|| Cow/i (-,uite4OU Naples, FL 34109 Phone ]39 ]Z5 4070 ax. 7]932S4O80 gwoods@wwmrglaw.com �` � ��� �, ( ' . k. zYxr�Rome 4,Rated'\ .5"--) Ave PREEMmNENx— A- BOT�A .fol Ada•^~�••, 2 from i)IS I'RI('T ('OI:Ri' OF A1'1'1'::\L OF THE STATE OF FLORIDA SECOND DISTRICT THIS CAUSE HAVING BEEN BROUGHT TO THIS COURT BY APPEAL, AND AFTER DUE CONSIDERATION THE COURT HAVING ISSUED ITS OPINION; YOU ARE HEREBY COMMANDED THAT SUCH FURTHER PROCEEDINGS BE HAD IN SAID CAUSE. IF REQUIRED, IN ACCORDANCE WITH THE OPINION OF THIS COURT ATTACHED HERETO AND INCORPORATED AS PART OF THIS ORDER, AND WITH THE RULES OF PROCEDURE AND LAWS OF THE STATE OF FLORIDA. WITNESS THE HONORABLE CRAIG C. VILLANTI CHIEF JUDGE OF THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, SECOND DISTRICT, AND THE SEAL OF THE SAID COURT AT LAKELAND, FLORIDA ON THIS DAY. DA FE: February 27, 2.017 SECOND DCA CASE NO. 2016-1714 COUNTY OF ORIGIN: Collier LOWER TRIBUNAL CASE NO. 08-CA-6933 CASE STYLE: FLORIDA WILDLIFE v. FRANCIS D. HUSSEY, JR., ET FEDERATION. ET AL AL `��'CVV4- tiL . . ;h LLuw,n,ci • Mary Elizabeth Kuenzel Clerk o p cc: (Without Attached Opinion) Margaret L. Cooper, Esq. John G. Vega, Esq. Rachel A. Kerlek, Esq. Gregory N. Woods, Esq. Colleen M. Greene, Esq. Thomas W. Reese, Esq. Aus, Cruni I)IS'FRIC I' Cot:Ri' OF APPI':.\I, OF TUE STATE OF EL0IZ11)A SECOND DISTRICT THIS CAUSE HAVING BEEN BROUGHT TO THIS COURT BY APPEAL, AND AFTER DUE CONSIDERATION THE COURT HAVING ISSUED ITS OPINION: YOU ARE HEREBY COMMANDED THAT SUCH FURTHER PROCEEDINGS BE HAD IN SAID CAUSE. IF REQUIRED, IN ACCORDANCE WITH THE OPINION OF THIS COURT ATTACHED HERETO AND INCORPORATED AS PART OF THIS ORDER, AND WITH THE RULES OF PROCEDURE AND LAWS OF THE STATE OF FLORIDA. WITNESS THE HONORABLE CRAIG C. VILLANTI CHIEF JUDGE OF THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, SECOND DISTRICT, AND THE SEAL OF THE SAID COURT AT LAKELAND. FLORIDA ON THIS DAY. DATE: February 27, 2017 SECOND DCA CASE NO. 2D16-1869 COUNTY OF ORIGIN: Collier LOWER TRIBUNAL CASE NO. 08-CA-7025 CASE STYLE: FLORIDA WILDLIFE v. SEAN HUSSEY, E1- AL., FEDERATION tit ...' , Tk ., Man/ Elizabeth Kuenzel Clerk OF F1Q cc: (Without Attached Opinion) John G. Vega, Esq. Rachel A. Kerlek, Esq. Margaret L. Cooper, Esq. Thomas W. Reese, Esq. Colleen M. Greene, Esq. Gregory N. Woods, Esq. September 25, 2012 TRANSCRIPT OF THE CLOSED SESSION OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida CLOSED SESSION Item #12B - Hussey The following is a Closed Session meeting held before the Board of Collier County Commissioners, who met on this date at 1 : 15 p.m. in Building "F" of the Government Complex, East Naples, Florida, with the following members present: Chairman: Fred Coyle Jim Coletta Donna Fiala Tom Henning Georgia Hiller ALSO PRESENT: Jeffrey Klatzkow, County Attorney Leo E. Ochs, Jr., County Manager Page 1 — Item #12B (Hussey) September 25, 2012 Item #12B THE BOARD IN CLOSED EXECUTIVE SESSION DISCUSSED: STRATEGY SESSION RELATED TO SETTLEMENT NEGOTIATIONS AND LITIGATION EXPENDITURES IN THE PENDING CASES OF: FRANCIS D. HUSSEY, JR., ET AL. V. COLLIER COUNTY, ET AL., SECOND DISTRICT COURT OF APPEAL CASE NO. 2D11- 1224; SEAN HUSSEY, ET AL. V. COLLIER COUNTY, ET AL., SECOND DISTRICT COURT OF APPEAL CASE NO. 2D11-1223 — CLOSED SESSION MR. KLATZKOW: We're ready. Just as a reminder, Commissioners, that we are on the record and at the conclusion of the litigation that these minutes will be available to the public. This is a very complicated settlement. Usually when we have shade sessions the issues are fairly easy. But this is one is a very complicated exchange of land use rights from one property to another. And the properties are some distance between each other. It raises transportation issues, it raises water issues, it raises, as you've heard, a lot of environmental issues. I mean, if you -- CHAIRMAN COYLE: Speak a little louder; it's hard for me for hear you. MR. KLATZKOW: I'm sorry, sir. It raises a large number of issues: Transportation, water, environmental. And it's rather complicated. One of the reasons I like the thought of going to a Planning Commission is that in essence with the Burt Harris claim we'd have to do a forced comprehensive plan amendment to allow them to do what they're doing. Page 2 — Item #12B (Hussey) September 25, 2012 This gets the public comment back into the process. So in essence we could substantially do through this process what we would normally do through a comp. plan amendment anyway. I think that's important. What I'd like today is, you know, some direction of whether or not you're amenable to the general idea of this swap for property rights, and then direct the Planning Commission to vet out all the issues that will be attendant, and not to come back with a settlement agreement but just a recommended proposal to the Board. COMMISSIONER HENNING: Yes, I am. MR. KLATZKOW: I think at the end of the day that you'll find that you'll get a better deal at the end of this process that is currently being presented to you. If memory serves me right, we did this process a number of years ago in Cocohatchee and it worked out well, I thought. COMMISSIONER HENNING: Now, the only issue outside of land use issues would be the access road. MR. KLATZKOW: Yes. COMMISSIONER HENNING: And that -- if I recall, Florida Rock is going to bring that road in anyways; is that correct? MR. KLATZKOW: That's my understanding, yes. COMMISSIONER HENNING: Okay. We need to find out from staff if Florida Rock is going to pay for that roadway or if this settlement agreement is going to be a part of their participation. And there might be other ways to -- if they're not going to participate in it, then there may be some proposals to interconnect the Big Cyp -- no, it's not Big Cypress. What is that big preserve up there to the north to get that interconnectivity? CREW. CREW lands. Page 3 — Item #12B (Hussey) September 25, 2012 MR. KLATZKOW: CREW lands, yeah. CHAIRMAN COYLE: Well, if we got to that point -- I mean, well, if we do this, wouldn't that become part of the review and approval of the mining permit itself, the transportation network? What roads would be used, what levels of traffic would be tolerated. COMMISSIONER HENNING: No, there's only one haul road and that is the east Wilson Boulevard extension that is going to terminate prior to Wilson Boulevard and direct all that traffic down into through the Hussey property and to the west into the landfill road, okay? That -- CHAIRMAN COYLE: Well, I understood that part of the settlement was to create a second exit for the trucks so that the truck volume would be shared over two different routes rather than just using that one route. That's what I was told. COMMISSIONER HENNING: Maybe that was -- I think that was mentioned by David Weeks. MR. OCHS: He did mention that. There's still excavation. If you end up doing this or some variation of it, there's excavation allowed at both sites as part of the proposed settlement. One of the advantages to that potentially is that instead of having all of the traffic going to just one location, it could be somewhat disbursed. MR. KLATZKOW: Yeah, but that's an advantage of being on the Planning Commission. That whole road network issue could be -- CHAIRMAN COYLE: Well, that's right. Those details could be worked out. But the thing that bothers me is that this has been going on for a long time. Long, long, long, long time. The court is now waiting and has been waiting since January for our response, and Page 4 — Item #12B (Hussey) September 25, 2012 we haven't really provided a response. And I -- lawyers tell me that our chances of winning this are pretty good. But what if we don't win it and we've got to pay $100 million? MR. KLATZKOW: Yeah, that's the problem with this case. I've always -- my knowledge with this case is rolling dice. And, you know, you get snake eyes three percent of the time. But here we get nothing if we win, and we get nothing if we win. And if we lose, it's $100 million. And that's the problem with this case from my mind. COMMISSIONER HILLER: But that's not really true, because if you lose on appeal it gets remanded to the lower court. So you're not -- if you lose the appeal you're not losing and you're not going to -- MR. KLATZKOW: No, I mean lose the case. I mean, at the end of the day if it gets remanded by the Second DCA back to the trial court and then we go through a trial and then you get a jury verdict on this, at the end of the day, and I think it's a remote possibility, but at the end of the day you're looking at a potential $100 million verdict. CHAIRMAN COYLE: So the question is do we want to settle it. MR. KLATZKOW: Yeah, I don't think you have enough information now. You don't have an agreement now that you can say yes, let's settle on this agreement. You know, what you might have is a concept of the switch of development rights from one property to another. CHAIRMAN COYLE: Well, that to me is an easy decision. We do that every time we mitigate something. Every time we take some environmentally sensitive land to enlarge a road or provide for stormwater collection, we mitigate it. We do exactly what they're doing. And that part to me is real, real easy. It makes a hell of a lot of sense. Page 5 — Item #12B (Hussey) September 25, 2012 The other details are what, you know, require a lot more review. But are there circumstances where we would be -- is there a framework that we would be willing to settle under? MR. KLATZKOW: Yeah, that's the framework. The framework is transfer of development rights from the Hussey property to this other property. And then come back to us with a firm deal. COMMISSIONER HILLER: Why can't they mine the property they've got? MR. KLATZKOW: They can. CHAIRMAN COYLE: They could have. COMMISSIONER HILLER: So why don't they? MR. KLATZKOW: They can't. COMMISSIONER HILLER: No, the property that they're proposing to switch. MR. KLATZKOW: They can mine that. COMMISSIONER HILLER: So why don't they? COMMISSIONER HENNING: Down in the North Belle Meade there's a high concentration of lime rock. And I mean, Stan has -- Chrzanowski, when he worked for the county has kind of mapped it all out. COMMISSIONER HILLER: So what's in the mine that they're giving up? COMMISSIONER HENNING: Bodies, probably. COMMISSIONER HILLER: What? COMMISSIONER HENNING: Bodies. COMMISSIONER HILLER: Bodies. COMMISSIONER FIALA: How many people and how many residential units are going to be affected by this? This is going to be a lot of truck traffic through that area. And then as I ask that question, I also think it says nothing at all about how many years. It says by right they can do Page 6 — Item #12B (Hussey) September 25, 2012 anything they please and without even a conditional permit or anything. So there's no way to protect those people in that area if say for instance 10 years down the road and they've got -- they've got 700 trucks a day going by their property, there's no relief. MR. KLATZKOW: Another advantage of dealing to the Planning Commission is that you don't have the Sunshine concern, Commissioner Fiala, so you can talk to members of the Planning Commission separately with these concerns and ask them to vet those out so you can get those answers. COMMISSIONER HILLER: So what are you proposing? We're not going to accept this settlement -- MR. KLATZKOW: We do not accept it today. COMMISSIONER HILLER: We just remand it to the Planning Commission -- MR. KLATZKOW: With direction. COMMISSIONER HILLER: To do what? MR. KLATZKOW: Well, that's why we're here. I mean, you know, the direction is that you would investigate this land swap. COMMISSIONER COLETTA: Come back with a recommendation. MR. KLATZKOW: This land swap proposal -- COMMISSIONER HILLER: Well, why can't they come back with recommendations of alternative settlement proposals. MR. KLATZKOW: That's fine too. COMMISSIONER HILLER: They might have other ideas that no one has thought about that could be brought back to settle this case. COMMISSIONER COLETTA: I got a question too. The concern that I have is I listened to Nancy Payton and Nicole, and it doesn't sound like that they're going to be accepting just about Page 7 — Item #12B (Hussey) September 25, 2012 anything that comes down. Can they intervene in this if we -- MR. KLATZKOW: They already have. And they walked away from the table. One of the reasons this settlement took so long was because Florida Wildlife was trying to hash this out. Vega thought he had a settlement with them but then they said no, on second thought we don't like this. They're still free to bring action. But the difference is if I fight with environmentalists, I don't write a check at the end of the day, I just tell the Husseys they can't develop. If I fight with the Husseys and lose, I write a check. So I don't mind fighting with the environmentalists on this. I mean, in essence they started this by going up to the state and having them shut down those lands back in the late Nineties. CHAIRMAN COYLE: Well, I don't think any of us can fully evaluate all of the details associated with this settlement agreement. But we've got to have the Planning Commission get involved. But I am really leery of just throwing it at the Planning Commission and say what should we do. COMMISSIONER HENNING: No, here's what I'm going to make a motion with, that we reprimand (sic) this down to the Planning Commission for them to take a look at it, ask it was a application of zoning (sic), take a look at all the issues associated with the zoning, including but not limited to traffic -- COMMISSIONER HILLER: I think that's a great idea. COMMISSIONER HENNING: -- traffic impacts, and bring it back to the Board of Commissioners. COMMISSIONER FIALA: And how deep and how long, right, how deep they want to go? COMMISSIONER HENNING: Well, that's a part of the application. MR. KLATZKOW: That's what they do. Page 8 — Item #12B (Hussey) September 25, 2012 COMMISSIONER HILLER: And alternatives. And I think what you say is absolutely right, but add alternatives. I mean, if they come up with, you know, alternative settlement proposals, to present those as well. COMMISSIONER FIALA: Well, let me ask: If it's part of the application, then what does by right mean? I mean, what are the limitations to by right and what are the limitations to being able to do this without a conditional use? MR. KLATZKOW: They want to mine. At the end of the day they want to walk away knowing that they can mine. COMMISSIONER FIALA: For as long as they please and however they please? MR. KLATZKOW: No, no, you've got -- this is a heavily regulated field. You can only go down so far before you start hitting the aquifer and -- you know. COMMISSIONER COLETTA: There's only certain areas that they can do it in too. And they have to have others set aside in preserve. But most of the land there has been disturbed. After they lost out the last time they went under the Right to Farm and they cleared a lot of the land. COMMISSIONER FIALA: Right. They tore down all the red-cockaded woodpecker trees. MR. KLATZKOW: And at the end of the day you may get something back from the Planning Commission. Just vote no if you don't like it. I mean, a supermajority vote. You don't have to take it. And then we'll just proceed with the litigation. I mean, you're a couple of years away from a final litigation resolution on this case. I'm just saying that the damages are so horrifyingly large from that standpoint that, you know, it's worth every shot to see if we can't reach some resolution. COMMISSIONER HILLER: Have you validated these Page 9 — Item #12B (Hussey) September 25, 2012 damages to ensure that they're realistic? MR. KLATZKOW: They have an -- to be blunt, they have an appraiser that will testify that these are the damages. I think they're hooey, all right. But we get this all the time in eminent domain where you get a guy up there who testifies, you know, as to some outrageous -- COMMISSIONER HILLER: And then you have your expert who gives -- MR. KLATZKOW: And we have our experts -- COMMISSIONER HILLER: -- a different opinion. MR. KLATZKOW: -- who's here. And then I got 12 people on a jury who just want to go home, they don't know what's going on. Sometimes they split the baby, sometimes they go with one, sometimes they go with the other. It's a crap shoot. CHAIRMAN COYLE: The jury, that's right, they're just totally -- you know, it really is a crap shoot with the jury. Because you're going to get people on the jury, particularly in Collier County, who think it is terrible that the government should be restricting a private property owner from using his property. MR. KLATZKOW: Which is exactly what the government did. I mean, the government said for this particular land you don't get any economically viable uses, you get to farm it. And one house for every 20 acres. COMMISSIONER HILLER: But we did that with all sending lands. COMMISSIONER HENNING: Yeah. MR. KLATZKOW: Right. COMMISSIONER HILLER: And then we have an ordinance that provides if you clear that land, that you -- I mean, so -- MR. KLATZKOW: Right. But if you want to get down to Page 10 — Item #12B (Hussey) September 25, 2012 the kernel of it, this is government taking away people's property rights. Now, we're arguing that it's lawful, you know, but at the end of the day, Commissioner Coyle is right, that's what government did. COMMISSIONER HENNING: And the -- there was no ground truthing. COMMISSIONER FIALA: No ground for what? COMMISSIONER HENNING: Ground truthing designation of sending, receiving or neutral. It was arbitrary and capricious, in my opinion. MR. KLATZKOW: Yeah, they just drew lines. They had people that sat at a table -- COMMISSIONER HILLER: For the whole RLSA? MR. KLATZKOW: The people who were at the table got the good end of the stick, and the people who weren't at the table got the bad end of the stick, and the Husseys were not at the table. COMMISSIONER FIALA: What about -- back to the roads one more time. Maybe this comes in the mining permit, I don't know. So I'm going to ask this question and that is: With the roads, normally we ask that every truck that uses the road pays a dollar per load, or I can't remember if it's a dollar per load or dollar per truck traffic on that to and from the mine. Anyway, to help maintain the roads, repair the roads and so forth. Is that what happens during the Planning Commission meeting or in the permitting? MR. KLATZKOW: Usually happens during the PUD process, is my recollection. We haven't done one in so long. COMMISSIONER HENNING: That's arbitrary and capricious. Or maybe that's not the right word. I drive on the roads and I take -- I'm an impact on the roads. However, I pay a gas tax to fix the roads, so -- Page 11 — Item #12B (Hussey) September 25, 2012 MR. KLATZKOW: But you're not 20 tons is the argument. COMMISSIONER HENNING: I am gaining weight. COMMISSIONER HILLER: You know what? You just look good, because it's spread out evenly. Kind of like Commissioner Coyle, it's evenly distributed. CHAIRMAN COYLE: What? COMMISSIONER HILLER: No comment. COMMISSIONER HENNING: Okay, I'm ready. MR. KLATZKOW: So we're ready? Okay, so we'll come back out of the shade -- COMMISSIONER HILLER: Wait, wait, whoa, whoa, whoa, whoa, whoa. Re-summarize where we are and what's -- MR. KLATZKOW: My understanding is Commissioner Henning is going to make a motion, and we'll see if we have three votes for it. COMMISSIONER HILLER: And the motion is? COMMISSIONER HENNING: Well, the motion is going to be to reprimand (sic) -- MR. KLATZKOW: Remand. COMMISSIONER HILLER: Remand. COMMISSIONER HENNING: Remand this to the Planning Commission to review it as they would a land use petition and make recommendations to the Board on that land use. And if there's any other recommendations on the settlement, we're not limiting them to that, just the land use. MR. KLATZKOW: And I don't want the other commissioners to say yes or no to that, because that's what coming out of the shade means. But that's my understanding of what the motion will be. CHAIRMAN COYLE: Let me ask a question. So there's Page 12 — Item #12B (Hussey) September 25, 2012 nothing we need to do today about expressing an intent to settle or not to settle? MR. KLATZKOW: You don't have to do that. CHAIRMAN COYLE: Okay. MR. KLATZKOW: You can if you want, but you don't have to do that. CHAIRMAN COYLE: Is there an advantage of doing that? COMMISSIONER HENNING: I think there is an advantage. I think there's a large advantage of everything being put on the table at the Planning Commission. CHAIRMAN COYLE: What does that mean? COMMISSIONER HENNING: Well, if they know -- is this a supermajority or -- MR. KLATZKOW: Supermajority. COMMISSIONER HENNING: If they know that this is a supermaj ority wish of the board, they're going to do whatever they can at the Planning Commission -- as you know, that a land use application, they always leave something for the Board. When it leaves the Planning Commission they always leave something -- MR. KLATZKOW: Extra. COMMISSIONER HENNING: -- extra for the Board to grab. If they know that there's a supermajority, everything's going to be laid out at the Planning Commission. MR. KLATZKOW: AND they're aware that this is a supermajority vote. I've talked with Vega many times on that. MR. OCHS: So back to the Chairman's question, if I hear you correctly, would the Board be expressing an intent not to settle when you go back out there with the current arrangement, or are we going to give any indication -- CHAIRMAN COYLE: Or express an intent to settle, subject to the recommendations of the Planning Commission, or Page 13 — Item #12B (Hussey) September 25, 2012 the analysis of the Planning Commission. COMMISSIONER FIALA: Why do we express an intent to settle? Is this an important thing? MR. KLATZKOW: That will be up to the motion maker. COMMISSIONER HENNING: Express an interest, a strong interest. In settlement. MR. KLATZKOW: That's safer. Okay, thank you. Thank you very much, Commissioners, I appreciate this very much. (The Closed Session concluded). BOARD OF COUNTY COMMISSIONERS BOARD OF ZONING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL DISTRICTS UNDER ITS CONTROL FRED COYLE, CHAIRMAN ATTEST DWIGHT E. BROCK, CLERK These minutes approved by the Board on , as presented or as corrected Transcript prepared on behalf of Gregory Court Reporting, Incorporated by Cherie' R. Nottingham, CSR. Page 14 — Item #12B (Hussey)