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BCC Minutes 01/08/2013 Closed Session (#12C-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 - Francis.pdf; Mandate - Sean.pdf From: Gregory N. Woods [mailto:GWoods@wwmrglaw.com] Sent: Wednesday, March 01, 2017 3:11 PM To: GreeneColleen; BradleyNancy Subject: Hussey Mandates For our file. Best regards, Gregory N. Woods Board Certified Civil Trial Lawyer Board Certified Business Litigation Lawyer Woods Weidenmiller Michetti Rudnick&Galbraith, PLLC 9015 Strada Steil Court, Suite 400 Naples, FL 14109 Phone: 2.39.325.4070 r 239 .125 4080 ;woods@wwmrglaw.com ‘.1 • ;-'ee Rev ew R,Y.?tf� :Po j Air PREEMINENT" Al3OTA W..r.,a.N..ab... { nfor o .� ��� ,,y.!, :nn,r .'.t iIt u 0,y fn . ,f 11'0 '41%10 ,m�.� ,�h,,_. i the r, 1c I cf • I ;h. r, _ :4, • (;i,'nt ,au Ilp rm(i_d th.it army�!�;�_r ar:)tron di,trih� :�t!.. .�nit�., ._.�. -',t�.i tb, ,.r,t I ,-,..��, ��, 1•.. , .,� �run� .cu:� �,. i � i�l�asx�r�.rtify u;leiinr�l�.��I �.1�„ . ":310 1o�,, 1 2 t ,, A ,, N D li , 11.0111 DISTRICT C'OLIU OF APPEAL 1. OF TIIE 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. DATE: February 27, 2017 SECOND DCA CASE NO. 2D16-1714 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 V; t�t(LhCI-L; !1' LLwV.vA,,1. 1 .* ,ciOitinc . Mary Elizabeth Kuenzel Clerk OF' 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 'Al. Reese, Esq. M a L .� from DISTRICT COl'R'h OF THE STATE OF H2ORI1)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 'IHE 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. O8-CA-7025 CASE STYLE: FLORIDA WILDLIFE v. SEAN I-IUSSEY, ET AL., FEDERATION 0:111_15PO4; 1 ( ( • '/ t/ � ''t-�titit • '•i .' Mani Elizabeth Kuenzel Clerk . .F1 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. January 8, 2013 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida CLOSED SESSION Item #12C - Hussey LET IT BE REMEMBERED, that the Collier County Commissioners, in and for the County of Collier, having conducted business herein, met on this date at 12:45 p.m. in CLOSED SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRWOMAN: Georgia Hiller Tom Henning Fred Coyle Donna Fiala Tim Nance ALSO PRESENT: Jeffrey Klatzkow, County Attorney Leo E. Ochs, Jr., County Manager Cherie' Nottingham, Court Reporter Page 1 — Item #12C (Hussey) January 8, 2013 Item #12C THE BOARD IN CLOSED EXECUTIVE SESSION WILL DISCUSS: 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. 2D 11-1224; AND SEAN HUSSEY, ET AL. V. COLLIER COUNTY, ET AL., SECOND DISTRICT COURT OF APPEAL CASE NO. 2D11-1223. — CLOSED SESSION MR. KLATZKOW: Hussey. Commissioner Nance, do you want to -- COMMISSIONER NANCE: I asked for the shade session so I could get up to speed as to where we are with negotiations. And I've been a little bit concerned because it's been my understanding but not my knowledge that there's been a lot of negotiation going on, there's been a lot of discussion between attorneys and staff members. You know, I've seen -- I know that I've had meetings at the request of-- COMMISSIONER COYLE: Which item are we on now, Hussey? COMMISSIONER NANCE: Hussey settlement. Yes, sir. Sorry. COMMISSIONER COYLE: That's all right. COMMISSIONER NANCE: You know, they requested to come meet with me. When they came there I said, you know, what is it you're proposing -- CHAIRWOMAN HILLER: Can I ask you a question? We said we were going to reconvene at 1 : 10. I don't believe that's the case. How much more time do we need so I can let people out there know and I'll go tell them that we're still in session? COMMISSIONER NANCE: I don't know, 20 minutes. CHAIRWOMAN HILLER: Do you think we need another 30 Page 2 — Item #12C (Hussey) January 8, 2013 minutes? COMMISSIONER FIALA: Depends on how long everybody talks. COMMISSIONER COYLE: Probably at least that. MR. KLATZKOW: I don't need 20 minutes. I don't know, Commissioner Nance, how much time? COMMISSIONER NANCE: I just want you to bring me up to speed quickly and then I would like to know that we have a negotiation system that somebody's going to take the lead in this and go down the road so we can move forward. Because right now the Planning Commission thinks they've got direction, staff is entertaining discussions with people. I don't think we have -- you know, there's been a lawsuit that's been laid on the table, and I think we have to start coming to grips with it. You know, there's been a lot of friendly discussion, but I'm not sure that's -- is that in our best interest? That's my inquiry. COMMISSIONER COYLE: County Attorney can best answer that. MR. KLATZKOW: The process right now has been to have public -- basically public negotiations in front of the Planning Commission. I don't think it's working. There are too many people with too many differing opinions on this. And I also think it's very complicated, the deal they put out with the two separate parcels. COMMISSIONER FIALA: I think they changed that. They were in my office yesterday and I said well, what about Jones Mining, and they said that's off the books. They weren't telling me the truth? COMMISSIONER NANCE: Well, see, that's to my point. I don't even know where we're at. I mean, we need to have this information coming through one point so that all the board members can understand where we're at and consider the information so that we can clearly make a decision. Page 3 — Item #12C (Hussey) January 8, 2013 And what my question is to this board is are we as a board risk adverse over this $93 million lawsuit? Does this board feel like we need to take this to trial on a risk, even if it might be small, losing it or is it considered opinion of the board members that we need to make a settlement? COMMISSIONER COYLE: I take the attorney's advice on that. I'm not offering a legal opinion here today. But going to your larger issue, we can't do that any other way. We can't sit down with the Husseys in a closed session and negotiate something altogether. We do that in an open session so that you get to express opinions and debate issues whenever we go out there and say yes, we're interested in settling with this thing, County Attorney, we direct you to go work on a settlement with somebody. And that's how it works. But they have a right to come in and talk to any one of us. And they have, in fact, I think. COMMISSIONER NANCE: What I'm suggesting and what has been suggested to me is that they go in talking to staff and staffs going, well, why don't we do this or why don't we do that. Or actually there's a number of people that are negotiating this settlement and I'm not aware of-- MR. KLATZKOW: It's been very unstructured. COMMISSIONER NANCE: I would be much more comfortable if it would be much more structured at this point, if indeed we are -- CHAIRWOMAN HILLER: Can I make a suggestion just to simplify it? Because I understand where you're coming from. I think what we do is we direct that the County Attorney take control over these settlement negotiations and that all negotiations be through the County Attorney. And that will centralize who is discussing this and to what degree. MR. KLATZKOW: But I need a client. CHAIRWOMAN HILLER: I'm sorry? Page 4 — Item #12C (Hussey) January 8, 2013 MR. KLATZKOW: I need a client. CHAIRWOMAN HILLER: That's us. MR. KLATZKOW: And I could -- well, that's you for the ultimate decision. But on a day-to-day basis I can't talk to all five of you at the same time. CHAIRWOMAN HILLER: No, you can't. MR. KLATZKOW: I can work with Leo. But my question is, Commissioner Nance, it would be easier if I could work with the commissioner of the district -- CHAIRWOMAN HILLER: Sure. MR. KLATZKOW: -- all right, to get the commissioner's district support on this to get a final settlement proposal and that that settlement proposal would bring to the Planning Commission to vet and then bring it to you. COMMISSIONER FIALA: Sure. May I ask -- MR. KLATZKOW: If that's fine with you, sir. COMMISSIONER NANCE: I'm fine working with it. And if that's acceptable I would tell you where I would start and take direction from you as a starting point. COMMISSIONER FIALA: Okay. Did you have your hand up before I did? I don't know. COMMISSIONER HENNING: I don't know, I was waiting for -- go ahead. COMMISSIONER FIALA: What I had here was possibly we would want to hire Tom Pelham because he's so involved with the Burt Harris Act and we might need his expertise on that. We might even need an expert attorney that deals was mining, if that will help us any. COMMISSIONER HENNING: Okay, may I go? CHAIRWOMAN HILLER: Yes. COMMISSIONER HENNING: Here's what I understand. Nick told the attorney the best way to do that is take the conditional use off Page 5 — Item #12C (Hussey) January 8, 2013 and then come back, come back with a conditional use for mining. CHAIRWOMAN HILLER: That takes 100 million off the table. You understand that. Because they have no right to mine as a matter of law. And so the minute you take the conditional use off, 100 million in damages is gone. COMMISSIONER HENNING: Right. CHAIRWOMAN HILLER: And now the only question that remains is what is the value of the 500 homes that they claim they legally can build on that property. That changes the damages calculation materially. COMMISSIONER HENNING: Well, let me say, because Commissioner Fiala said something about a discussion with the Husseys. The separation -- there are two different parcels. I told them I think if you would take the 846 property off the table, go back to the original application under the GMP and bring that forward, it doesn't confuse it. Because once you start getting different parcels in there, at some point we need to at least explain to everybody what that really is doing. And I'm not sure that we really have the expertise in growth management. Now, if they are in agreement to take the conditional use off, there's no sense of going back to the Planning Commission. Because sooner or later they're going to be at the Planning Commission with their conditional use. CHAIRWOMAN HILLER: Which the Planning Commission has denied, will deny again more likely than not and then it comes to the board. COMMISSIONER HENNING: No, it was only a GMP amendment. It was only a GMP amendment. So to me the real issue is go back to the original one. There wasn't any housing on that, if I recall the original -- COMMISSIONER FIALA: Yeah, you're right. MR. KLATZKOW: They were -- before the GMP they were Page 6 — Item #12C (Hussey) January 8, 2013 rural ag. So they could do mining by conditional use and one unit for every five -- COMMISSIONER NANCE: Their argument is that they had mining by right before the RFMUD was passed. And that's -- CHAIRWOMAN HILLER: Is that true? MR. KLATZKOW: No, they had the right to do a conditional use. CHAIRWOMAN HILLER: That's not mining by right. MR. KLATZKOW: Well, it's part of litigation, I mean, to be blunt. But to go on from what Commissioner Henning said, if you take the 846 property off the table, and really I think the only reason for that was because of the environmentalists. If you take that off the table, I think you could probably get a pretty decent deal very quickly. CHAIRWOMAN HILLER: If you take 846 off the table, you're taking the conditional use off the table. MR. KLATZKOW: No, go back -- what we can do is we can go back to what they had before the GMP amendment. CHAIRWOMAN HILLER: Which was what? MR. KLATZKOW: Which was rural ag., all right. And, you know, they've talked before about giving like panther corridor on the lower half of the piece. COMMISSIONER NANCE: That's what the engineers want. MR. KLATZKOW: So if they can get that on the piece there and they get all their prior rights, they got the conditional use, and the county can get the right-of-way that they've offered -- COMMISSIONER NANCE: Let me tell you how you solve it, in my view, real easy. Take the piece of property that they want to mine and do something. And here's my concern: If you go into the RFMUD and you don't keep the balance that you've got, you throw your sending and receiving credits all out of whack. You just take -- the reason that it's got appeal to me is you take the piece from the 846, Page 7 — Item #12C (Hussey) January 8, 2013 take that receiving up there, make it sending, take this piece down here that's sending, make it receiving. You just flip it. And give them no other rights than the rights they would have had if that's the way it would have -- the RFMUD would have been restructured to begin with. So they've got a piece of receiving land. You just switched them out. They like that for two reasons: Number one, it lets them apply for their conditional use on the mine. Up above they actually need sending land. It will have an appeal to them because they're out of balance up there between their sending and receiving land for something that they want to do in the RFMUD. And then if we consider the RFMUD in the future they would share or, you know, they would gain or lose as we develop that plan. I don't think it has any utility at all to give them all these punch lists of additional uses that they've asked for. And let me tell you why. It throws the whole RFMUD out of balance and it also impacts all the other commercial properties and land use decisions we've made and neighboring properties, and it's going to make all those business people crazy if we do something funny for them specially on their property. It's going to make everybody nuts. It's going to throw everything out of balance. COMMISSIONER FIALA: I agree. This is the map they gave me yesterday. COMMISSIONER NANCE: So if we just do a simple swap and just say okay, here's what we're doing, we're doing a simple swap, that's what you're going to get. Done. They've agreed to keep the bottom part a corridor, the NGO's are off our necks, the panthers can go down through there. COMMISSIONER FIALA: Could I ask, what's going to happen to all of these homes with all of these trucks going in? I always worry about the residents. COMMISSIONER HENNING: That has to be a conditional use. COMMISSIONER NANCE: Well, that's going to have to come Page 8 — Item #12C (Hussey) January 8, 2013 up into the conditional use consideration. COMMISSIONER FIALA: Yeah, and that's what they said. And they would have to come back each time for a conditional use. COMMISSIONER NANCE: Yes. CHAIRWOMAN HILLER: Which we have the legal right to deny. COMMISSIONER FIALA: But you know what? They didn't give me anything in writing to tell me what their new proposal was. This was brand new yesterday. COMMISSIONER HENNING: Well, that's the part of it. I think what Commissioner Nance is saying and the direction that I hear my colleagues is let the County Attorney work with -- you know, try to settle, work it through Commissioner Nance. CHAIRWOMAN HILLER: I like what Fiala said about Pelham. MR. KLATZKOW: I don't think that's a good idea. Because I met with Tom Pelham about a year and a half ago, and Tom Pelham is no longer Tom Pelham. COMMISSIONER FIALA: What do you mean? CHAIRWOMAN HILLER: What do you mean? MR. KLATZKOW: He just -- he got older. COMMISSIONER FIALA: Luckily I don't. CHAIRWOMAN HILLER: Donna, I'm following in your footsteps, I'm telling you right now. COMMISSIONER NANCE: We all follow in each other's footsteps. CHAIRWOMAN HILLER: Make no mistake about it. MR. OCHS: Question procedurally. My understanding where we are right now, the prior direction was to treat the settlement proposal as essentially a GMP amendment application, take it through the Planning Commission. So my staff is in the process of doing a sufficiency review like they normally would on the submission from the plaintiff. And they're due to report back Page 9 — Item #12C (Hussey) January 8, 2013 out to the Planning Commission the 17th of this month. So whatever direction the board decides, obviously that's fine. I just need to know if I should suspend that or short-circuit that at this point or let that run in parallel with whatever negotiations -- MR. KLATZKOW: The direction -- MR. OCHS: -- we're going to have. MR. KLATZKOW: The direction I'm hearing from the board is I'll take point, I'll work with Commissioner Nance and see if we can't just bang something out. It may not need to go before the Planning Commission, depending on what we're doing. MR. OCHS: They have an expectation that you still want them to do this. So when we go back out on the record maybe we need to clarify that -- CHAIRWOMAN HILLER: Well, don't go out on the record till MR. OCHS: -- before the staff and the Planning Commissioner. CHAIRWOMAN HILLER: I think what we need is for Nance and Jeff to work together and for us to have another closed session and you bring back what you see as a reasonable proposal, and that we hold off on staff doing anything until we hear what the proposal is. And then let staff continue, based on what that proposal might be. COMMISSIONER HENNING: Yeah. The sooner the better. Because everybody is spending money in the courts. CHAIRWOMAN HILLER: Yeah, we want to get it done. But how long do you need to work with Nance to work out -- MR. KLATZKOW: Honestly, if I don't have to worry about the environmental groups I think this can get hammered out very quickly. CHAIRWOMAN HILLER: Well, you have to incorporate them so we don't have problems with them. MR. KLATZKOW: That's -- you'll never -- you will never ever ever please them. CHAIRWOMAN HILLER: Well, that's up to you to do. Page 10 — Item #12C (Hussey) January 8, 2013 MR. KLATZKOW: I'm just telling you right now. CHAIRWOMAN HILLER: But Tim, that's your responsibility to negotiate with them to bring about a settlement that is acceptable to all parties. I mean, that's part of the job. COMMISSIONER NANCE: Well, you know, they have so objected to any settlement that they've actually walked away. And in my conversations with them, this is exactly what I told them. I said, ladies and gentlemen -- I talked to Ms. Payton, I talked to Brad Cornell. I said, do you really want to walk away? I said, should this board decide that it's risk adverse and we don't want to go to trial, do you really want to not give us your advice? I said, please think about that and give us your best -- you know, I want to hear it. I don't want you to get mad and take your ball and go home and then you complain about the results. Honestly, you know, that's what I told them. And they looked at me like, oh, okay. I said, well, you know, please consider it. CHAIRWOMAN HILLER: Well, then I think our direction is clear, that Jeff and Tim will work on developing an alternative or a counteroffer, if you will, that you will work with the NGO's to have their buy-in, that you will consider swapping the properties as part of that settlement. And -- MR. OCHS: Ma'am, if I may, then I'll suspend any further staff action with the Planning Commission. CHAIRWOMAN HILLER: Yeah, and that staff action is suspended. MR. KLATZKOW: I'll just ask my direction -- that the board's direction is that if I take the lead on getting a counter offer working with Commissioner Nance and nothing else -- CHAIRWOMAN HILLER: Right. MR. KLATZKOW: -- and then Commissioner Nance behind the scenes could -- COMMISSIONER NANCE: Shouldn't we direct staff to cease Page 11 —Item #12C (Hussey) January 8, 2013 all discussions with the plaintiff? MR. OCHS: Yes. MR. KLATZKOW: Yes. CHAIRWOMAN HILLER: And really on all settlement issues everything should strictly go through you, Jeff, so we have some centralized control. MR. KLATZKOW: Yes, just make an appointment. CHAIRWOMAN HILLER: For all settlement dis -- MR. KLATZKOW: Well, for this one anyway. CHAIRWOMAN HILLER: No, for all of them. I think -- MR. KLATZKOW: But that's fine. CHAIRWOMAN HILLER: -- this just makes it easier for this one, for -- MR. KLATZKOW: And I'll work with your staff on this. MR. OCHS: Sure. CHAIRWOMAN HILLER: And then the last part of the direction is that you will bring this back to the board in another closed session -- MR. KLATZKOW: There will be another closed session. CHAIRWOMAN HILLER: -- so that we can review it before it's presented. That nothing will be presented before -- MR. KLATZKOW: That's correct. CHAIRWOMAN HILLER: -- the board reviews it in closed session. COMMISSIONER FIALA: Could I throw something on the side of that? I agree with everything everybody's saying. One of the things Nicole suggested, and she said they had said the reason the money that they want is so high is because they have tremendous quality rock on this site. But she says nobody's actually gone to prove that they have great rock or anything. What is the analysis? What is the data? COMMISSIONER NANCE: Well, Commissioner Fiala, that Page 12 — Item #12C (Hussey) January 8, 2013 goes right back to their conditional use. They're going to have to -- CHAIRWOMAN HILLER: It's not part of the takings. COMMISSIONER FIALA: Yeah, and the suit, I mean, the money they want. COMMISSIONER NANCE: Well, we're hoping we're not going to give them any money. All we're going to do is give them the right to their piece of land, whatever it was, whether good land, bad land, good rock, bad rock, and then they have to come back to us with an application. COMMISSIONER COYLE: They can change their name to Blocker and come back and -- COMMISSIONER NANCE: You just had to throw that in. COMMISSIONER COYLE: You're never going to live this down. MR. KLATZKOW: Okay, I understand. COMMISSIONER HENNING: So we'll give you direction once we get on the dais. COMMISSIONER NANCE: I'll do my best. I'm an old poker player. (At which time, the closed session concluded at 1:20 p.m.) ***** — I m Page 13 to #12C (Husse y) January 8, 2013 BOARD OF COUNTY COMMISSIONERS BOARD OF ZONING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL DISTRICTS UNDER ITS CONTROL GEORGIA A. HILLER, ESQ., CHAIRWOMAN ATTEST DWIGHT E. BROCK, CLERK These minutes approved by the Board on as presented or as corrected CERTIFICATE OF REPORTER State of Florida ) County of Collier ) I, CHERIE' NOTTINGHAM, Notary Public, in and for the State of Florida at Large, certify that I was authorized to and did stenographically report the foregoing proceedings. I further certify that I am not a relative, employee, attorney or counsel of any of the parties, nor am I financially interested in the action. Page 14 —Item #12C (Hussey) January 8, 2013 Dated this 12th day of January, 2013. CHERIE' NOTTINGHAM Gregory Court Reporting 2650 Airport Road South Naples, Florida 34112 My Commission No. EE 008093 Expires: July 12, 2014 Page 15 — Item #12C (Hussey)