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BCC Minutes 02/12/2013 Closed Session (Item #12A-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 '+04`) 5tr:3da ;tell Coort, ute =00 Nripins, FL 34109 Phone: 239.325.4070 L x: 239.325.4080 gwoods@wwmrglaw.com 4.01' tl, t ter Re.''.e?A. yt' AV' PREEMINENT"' ABOTA .W1 n41,i.K.46**• 1 2- MANDATE from ins-I IRI( -I' ('OI.R'I' OF :AI'1'1'..Al. OF 'I'IIE STATE OF F LORI I)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 TI-IAT 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. 2D1G-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 ` .4� 0 . Mary' Elizabeth Kuenzel F . Clerk 0 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. Iruni DISTRICT COURT OF APPEAL OF TILE 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 TI IE 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, ET AL., FEDERATION CFbUia*, 04 ;' _ Ti •, Mary 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. February 12, 2013 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, CLOSED SESSION Item #12A - HUSSEY LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special districts as have been created according to law and having conducted business herein, met on this date at 12: 12 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: Leo Ochs, County Manager Jeffrey A. Klatzkow, County Attorney 1 Page 1 — Item #12A (Hussey) February 12, 2013 Item #12A THE BOARD IN CLOSED EXECUTIVE SESSION WILL DISCUSS: STRATEGY RELATED TO SETTLEMENT NEGOTIATIONS AND LITIGATION EXPENDITURES IN THE PENDING CASES: FRANCIS D. HUSSEY, JR., ET AL. V. COLLIER COUNTY, ET AL., SECOND DISTRICT COURT OF APPEAL CASE NO. 2D11-1224; AND SEAN HUSSEY, ET AL. V. COLLIER COUNTY, ET AL., SECOND DISTRICT COURT OF APPEAL CASE NO. 2D11-1223. — CLOSED SESSION MR. KLATZKOW: Well, let's commence. I'm bringing forward a settlement agreement, a proposed settlement agreement, in the Hussey matter. Commissioner Nance was instrumental in helping the negotiation process. And I learned a lesson doing that, which may be to ask you guys to appoint a point person in future negotiations. COMMISSIONER FIALA: Say that again. I couldn't hear you. MR. KLATZKOW: Yeah. I learned a lesson that I may ask the board to appoint a member to help me in future negotiations of these complex suits, because Commissioner Nance really cut through everything very quickly on this. It's one thing if I say something to a plaintiff. It's another thing if a commissioner says something. CHAIRWOMAN HILLER: That makes sense. COMMISSIONER FIALA: Yeah. If a commissioner from that district disagrees with the other three, then what good does it do? MR. KLATZKOW: You'd be appointed by the board. That's down the line. And we did that with the clerk, too, I believe. You were there, Commissioner Fiala, when we had the clerk litigation. I'm never going to have a better deal than this, ever. And my recommendation to you is if you want to settle this case, now's the 2 Page 2 — Item #12A (Hussey) February 12, 2013 time. And if you prefer to take the case to its end, that's fine, too. We'll likely prevail, but there is an $80 million potential exposure here. But I don't think I'll ever bring back a simpler or a better deal for the board. Basically, what you're doing is, if you go to Exhibit A in the back -- and, Leo, I apologize, but I -- MR. OCHS: That's okay. MR. KLATZKOW: We're dividing the Husseys' land. It used to be all sending, and now the northern portion is going to be redesignated as receiving area. In the future, if they wish to conduct mining operations, that's where they'll be. But they'll have to come forward with a conditional use application so they have -- this is not a development agreement. It does not give them the rights to mine or anything. So when you hear about increased traffic or whatever, that is not -- that is not now. That is five years from now or 10 years from now or 20 years from now, whenever the Husseys or the predecessors come forward -- successors come forward, and say, okay, now is the time you want a conditional use, and that's when the item will be heard. And if you look, one of the things the county's getting is going to be along I-75. We're going to get a mile strip, 180 feet of right-of-way for $2,500 an acre in impact fee credits. So whether or not the Husseys ultimately use them doesn't matter. We will be getting this in fee for the future of Wilson Boulevard extension. COMMISSIONER COYLE: How much property? How wide is it? MR. KLATZKOW: One hundred eighty feet, a mile long. What we're doing is we're taking another property off of Immokalee Road. COMMISSIONER HENNING: Hang on a second. That isn't what it says here. The owner will receive 55,795 road impact fee 3 Page 3 — Item #12A (Hussey) February 12, 2013 credits for this dedication of value of 2,500. These road impact fee credits shall insure the benefit of the Husseys' land and will run in perpetuity. No further considerations will be due to the Husseys for dedication, irrespective of whether the impact fees are or can be utilized in whole or in part. MR. KLATZKOW: So if the board down the line, Florida Legislation down the line, gets rid of impact fees, it doesn't matter. COMMISSIONER HENNING: Well, this agreement -- and this is a question. This agreement, by applying impact fees, you already assume either a conditional use or a land use on the property. MR. KLATZKOW: No. COMMISSIONER HENNING: Absolutely not? MR. KLATZKOW: No. COMMISSIONER HENNING: Because if you're giving them that credit and the board or a future board turns down their application for a mine, what are they going to do with those credits, those impact fee credits? MR. KLATZKOW: Well, they might decide to go residential or COMMISSIONER NANCE: They're going to get receiving lands. COMMISSIONER HENNING: They have to -- in residential don't they have to do it through a petition? COMMISSIONER NANCE: Yes. COMMISSIONER HENNING: Yeah, they have to do a PUD. MR. KLATZKOW: Yes, and they will have whatever credit they have. COMMISSIONER HENNING: So what about if the board turns that down? MR. KLATZKOW: Well, if the board keeps turning down development rights and they can't development anything, you know -- COMMISSIONER HENNING: Well, we're giving them the 4 Page 4 — Item #12A (Hussey) February 12, 2013 development rights through the settlement agreement. MR. KLATZKOW: No, you're not, with all due respect. I mean, you're changing them to receiving lands. COMMISSIONER NANCE: And everything that goes with receiving lands, they have, then, by right. COMMISSIONER HENNING: Okay. CHAIRWOMAN HILLER: Just to clarify for the record, you know, this land that they're giving us for the right-of-way, based on this, is 55,000, $56,000. I mean, we're not talking about a large amount of money here. MR. KLATZKOW: You're not talking any real money. COMMISSIONER HENNING: And I agree. CHAIRWOMAN HILLER: No. COMMISSIONER HENNING: You're going to give it back. CHAIRWOMAN HILLER: The road that they're giving us doesn't have great financial value. It's not like it's a -- I mean, it's a very insignificant component of this settlement. COMMISSIONER NANCE: It's $2,500 an acre. CHAIRWOMAN HILLER: Right. What I'm saying is $56,000 in total, it's a very insignificant component. MR. KLATZKOW: If you had to condemn this -- CHAIRWOMAN HILLER: Right. MR. KLATZKOW: If you had to condemn this, it would cost substantially more. CHAIRWOMAN HILLER: Well, it couldn't cost that much more because, apparently, we're giving them some sort of fair value for this property. MR. KLATZKOW: Well, we said -- we said what the price was, and they said, sure. CHAIRWOMAN HILLER: Again, it sounds to me like it's not a big deal. MR. KLATZKOW: Okay. 5 Page 5 — Item #12A (Hussey) February 12, 2013 CHAIRWOMAN HILLER: This is not a very significant -- it's not like we're getting a lot. COMMISSIONER HENNING: And you addressed my question. CHAIRWOMAN HILLER: This particular component of the settlement is not material. MR. KLATZKOW: Okay. What we're doing is it's a trade, acre per acre, so that there are a total of 578 acres that we're redesignating in the Hussey property from sending to receiving and then we're developing into another parcel, the 846 parcel, which is off of Immokalee Road, and they're taking their property, and then they're now redesignating that property from receiving to sending. So they've -- so they will have 578 acres of their property go flip the other way. So we haven't changed the balance within the system between receiving and sending. Yes, ma'am. COMMISSIONER FIALA: How then -- the problem I have -- well, I have a number of problems. The first one is the reason lands were dedicated as sending lands was because they had environmentally sensitive things on it, whether it be animals, whether it be trees, whether it be wetlands, many, many reasons. How can receiving land which had no environmental concerns on it miraculously becoming environmentally sensitive land for sending lands? MR. KLATZKOW: I would think that if you asked your staff whether or not the properties of 846 are environmentally significant, they would say yes they are. They're mostly wetlands. COMMISSIONER NANCE: Almost all wetlands. The fact that those got designated receiving land was a shock to me. I don't know how you could possibly do it, because it's a major piece of wetlands adjacent to the Corkscrew Swamp Sanctuary. COMMISSIONER FIALA: Yeah. 6 Page 6 — Item #12A (Hussey) February 12, 2013 COMMISSIONER NANCE: So, you know, there were -- I mean, you can go back and rethink that whole thing, but there was a lot of pretty arbitrary things in my mind, I think, that they were quite political, actually, in how things worked out that way. It's attractive to the people with 846 because it helps them with needed sending credits that they don't have. They've got an extraordinary amount of receiving land on their property, but not a lot of sending land to derive credits from. So it's attractive, and I think there's quite a bit of environmental information about the lands that are switched now. One thing that I will tell you, and you will hear from the environmental community, that the lands down south that are becoming receiving lands were originally considered to affect the panther. And the lands in the 846 to the north, of course, are wood stork habitat and not panther habitat. So they grumble about that a little bit. But I think it's a very fair trade of environmental value. I don't think there's a big gap in environmental value. CHAIRWOMAN HILLER: At your public meeting, the environmentalists disagreed with you. COMMISSIONER NANCE: Hmm? CHAIRWOMAN HILLER: At the public meeting, when this was last discussed, the environmentalists disagreed with the assessment that you just presented. COMMISSIONER NANCE: The environmental people told me in a private meeting that I had with them that the reason they weren't concerned about that wetlands being receiving land up north was they were going to hustle the property owner out of it anyway, because there's no way they could ever develop it because it was wetlands. That was their approach. Just to let you know. MR. KLATZKOW: I will tell you that my office tried to sort of mediate this settlement between the Husseys and the environmentalists for a very long time, and the environmentalists were 7 Page 7 — Item #12A (Hussey) February 12, 2013 intransigent. COMMISSIONER FIALA: Another question I have, not having to do with environmentalists at all, but the people who live there. You've got people in the pathway now up where they're going to be moving their trucks. I heard you say it could be homes. It doesn't have to be trucks. But they're going to go for the most money they can make on their property. And what they had wanted to do before was 30 years of mining, and all those trucks have to go through the Golden Gate community. First of all, you've got those big dump trucks going there, even if it's 300 a day. But first of all, people will never be able to sell their houses and move someplace else to get away from that pathway because nobody else will want to buy them, unless they sell them for a song. Secondly, nobody else will want to move there because they wouldn't want to be in the pathway of trucks. So you've got 30 years of impact on innocent people who have nothing to say in this agreement. And I worry for them. MR. KLATZKOW: I'll defer to Commissioner Nance. It's his district. COMMISSIONER NANCE: Remember, it's a -- the Husseys, throughout this discussion, said that all they wanted was to get the original rights that they had back. COMMISSIONER FIALA: Oh, boy. Don't say that. COMMISSIONER NANCE: Wait a second. They said that their property had the right for them to apply for a conditional use for mining when they started, and that's what they're asking for now. Conditional use. Nothing more than they had when they started. That's the basis for their Bert Harris action; is that not the case? MR. KLATZKOW: Yes, sir. CHAIRWOMAN HILLER: But that doesn't make any sense because, first of all, we've had, I guess, two cases where we have won 8 Page 8 — Item #12A (Hussey) February 12, 2013 supporting the RLSA or -- is this RFMUD -- COMMISSIONER NANCE: RFMUD. CHAIRWOMAN HILLER: -- the RFMUD as established, right? MR. KLATZKOW: Yes. CHAIRWOMAN HILLER: We've won twice. MR. KLATZKOW: We won at the trial court, okay. It's now going to go up -- it's now on appeal. CHAIRWOMAN HILLER: I thought there was another case, okay. So this is the only case. So we won at the trial court. They upheld the RFMUD. If we basically do what you're suggesting, which is put them back to where they were before, you might as well just throw the RFMUD out. Because if you're going to do it for them, you need to do it for everyone else. And the other thing I will add is this whole business of, you know, giving these TDRs as value for people who put their properties in conservation and setting them in at a price of 25,000, that's price fixing, and it's completely illegal. COMMISSIONER NANCE: Commissioner Hiller, that's the RFMUD. That's got nothing to do with this. CHAIRWOMAN HILLER: It has everything to do with it, because you cannot single out one property and say, oh, we will carve them out of the pool and treat them differently when they're similarly situated to all the other properties. This program was deemed to be legal by the courts. The designations were done in a way that the courts have said is valid and do not constitute a taking. You don't have -- you know, this mining as a conditional use is not a matter of right. They didn't -- you know, to make the argument you made, I don't see it at all. Not only that -- COMMISSIONER NANCE: Well, all the people that have receiving land have that same option to mine in there with a conditional use application. They're not getting treated any different 9 Page 9 — Item #12A (Hussey) February 12, 2013 than anybody in the -- CHAIRWOMAN HILLER: But reversing them back to their pre-RFMUD status, in my opinion, requires you to do the same for all the other properties in the RFMUD. MR. KLATZKOW: That's not what we're doing. COMMISSIONER NANCE: That's not what we're doing. CHAIRWOMAN HILLER: But it is. And here's the other problem. Number one, like I said, with respect to those TDRs that you're claiming -- you know, not you, but that the board has, in the past, set a value of$25,000 to, that -- you can't legally do that. I mean, the Florida Statute is clear. I mean, federal law is clear. And, secondly -- secondly, or thirdly, where is the value in this mining? Okay. We're sitting here negotiating a settlement where we won at the lower court and where there has been no evidence presented to this board that these people have $99 million in mining value in that land. Where is the evidence? I sat down with Jeff, okay, when this was in open discussion. And one of the first things I asked is, where's the proof? And he said, well, we didn't get the proof on it because it never got to discovery before the courts ruled in our favor. So then I said, well, have they given you anything to show you as evidence? And he said no. And then he showed me some map that Stan put together which shows no evidence whatsoever that the mining value that they're claiming is there. So we are entering into a settlement without even any proof from the other party that they have some damages. I mean, it just doesn't make any sense. COMMISSIONER FIALA: Hear, hear. COMMISSIONER COYLE: We have been giving Jeff direction to proceed with a settlement -- CHAIRWOMAN HILLER: Oh, I understand. 10 Page 10 — Item #12A (Hussey) February 12, 2013 COMMISSIONER COYLE: -- for months and months and months. Why are we now raising a question about whether or not the suit itself was justified? CHAIRWOMAN HILLER: Because -- here's why. Because we didn't give him direction strictly to pursue settlement. We gave him direction to prepare the response for the appellate hearing and have it ready to deliver on the courthouse steps. We always prefer -- I mean, in any litigation you would rather be able to settle and settle fairly in litigation. COMMISSIONER COYLE: Look at it this way -- CHAIRWOMAN HILLER: But here's my point. COMMISSIONER COYLE: Well, wait a minute. Let me address that issue of the value. CHAIRWOMAN HILLER: This is an excessive settlement, because we don't have proof that they have damages. MR. KLATZKOW: You're not paying a dime. COMMISSIONER COYLE: Wait a minute. CHAIRWOMAN HILLER: It's not about money. It's not -- COMMISSIONER COYLE: It's not costing us a penny. Secondly, and who cares if it's $99 million or $29 million? I don't care. I don't care how much rock value they have out there. CHAIRWOMAN HILLER: They might have no value. COMMISSIONER COYLE: Well, the land has value. CHAIRWOMAN HILLER: But no one is denying them the right to use their land without compensation. They received TDRs. COMMISSIONER NANCE: That's the whole basis for their argument. Now, Commissioner Hiller, I think you're misunderstanding. We're not taking them out of the RFMUD program. All we're doing is taking one parcel that they own up here and changing the designation to another parcel they own over here. CHAIRWOMAN HILLER: But they don't own the other parcel. 11 Page 11 —Item #12A (Hussey) February 12, 2013 COMMISSIONER NANCE: Yes, they do. CHAIRWOMAN HILLER: No. They're part owners. COMMISSIONER NANCE: Okay. That's basically what's happening. We're just switching things around. CHAIRWOMAN HILLER: Yeah. But then what's to say we shouldn't be switching it around for all the other properties on there? COMMISSIONER HENNING: Okay. It's my turn. Commissioner Coyle has somewhat of a point. We directed staff to negotiate a settlement. As far as whether they have a claim or not is saying, okay, prove to us that you have a value, and then we'll decide whether we're going to, you know, go through the court proceedings to see if you're going to win, and then you'd still need to prove your value. The issue is that we directed the county attorney and Commissioner Nance to bring a settlement agreement. I don't -- personally, I don't think we should mix one property. We have one property that we're suing over rights, but we're bringing in another property. CHAIRWOMAN HILLER: Right. I agree. COMMISSIONER HENNING: I don't think that we need to bring in another property. CHAIRWOMAN HILLER: I agree. COMMISSIONER HENNING: I mean, I think we ought to just deal with the issue, and that's the Hussey property. And if they want to do mining, say that they can do an application for a conditional use on this particular property because of whatever the circumstances are, and tell us how big you want it -- negotiate how big you want it, put the rest of it in preserves, you know, get the haul road down there and be done with it. You know, as far as I -- the 846 property -- and I looked at this map. They still have to have -- and now, if it's the wetlands, you know, the chances of them -- it's going to be very costly to build on it, 12 Page 12 — Item #12A (Hussey) February 12, 2013 and it's way out there, and besides the fact they have to have native vegetation retention anyways, 25 percent. So you're really not gaining that much more. And I don't know where this issue is we have to have a balance of the TDRs. I don't think we do. I think we ought to just stick to the issue that is the Husseys' property and what they want to do with it, how big of a footprint, come back to us on the detail through the conditional use. That's where I'm at. COMMISSIONER NANCE: Actually, the balance is one of the biggest issues, Commissioner Henning. COMMISSIONER HENNING: Who's bringing up the issue of balance? COMMISSIONER NANCE: The sending people. When we -- we had some very early talks years ago about trying to update the RFMUD to allow there to be some more uses within the receiving land to drive the equation forward, because when they went in and they assigned an arbitrary value at $25,000 per sending credit, the numbers wouldn't work for anybody. The receiving land people didn't have enough uses. The sending land people are now frozen where they can't get anything. To date, there hasn't been a single sending credit that's been sold in the free market from one to another. Now, people have talked about transferring within their own ownership. But the concept of keeping the receiving parcels balanced with the sending parcels is something that the environmental people have argued from day one. They don't want to see anybody go in and change it because it throws it out of balance. That's been a -- that's been a big thing for a long time. The reason that the 846 parcel -- excuse me just one second. Let me finish. The reason that the 846 parcels are attractive as a settlement tool is it helps them a little bit with their future plans within the RFMUD rules up above. It's attractive to them. It's not anything 13 Page 13 — Item #12A (Hussey) February 12, 2013 other than that. It keeps the balance, it answers that issue, and it's attractive for them. It's a stimulus for them to settle without a bunch of other benefits. That's why the county attorney and I were able to strip out all these other benefits over there and get it down to the basic, just trade one for one. They actually wanted to give up 900 acres of receiving land up above in exchange for the 500 acres of receiving land down below. They actually want to give away more because then they would have got more sending credits up above. It would have helped them. But had we done that, we would have thrown that balance out, and it would have hurt all of the other sending and receiving owners throughout the RFMUD, which is much bigger than what we're talking about. So I see it as very -- COMMISSIONER HENNING: Is this your opinion or somebody else's? COMMISSIONER NANCE: That's my opinion. COMMISSIONER HENNING: Okay. Well -- COMMISSIONER NANCE: I think it's very benign. It's the most benign thing we can do just to switch the designation on an equal number of acres. I think it's the most benign thing we can do. We don't have to give them special rights. They don't get any other rights other than what comes with the RFMUD on that switch. The only thing that I thought was controversial at all was Paragraph 8, which was just an application that the county attorney says is absolutely no concern. So I thought this was the most conservative thing for the RFMUD, because I anticipate that all of the commissioners here are going to want to revisit the RFMUD and make it a workable solution. So I didn't want to start changing it so that it would treat everybody fairly, so that everybody within that RFMUD system then gets the benefit of what we do to make that system more workable. And I'm 14 Page 14 — Item #12A (Hussey) February 12, 2013 sure that's going to be coming up very soon. I'm sure you'll be getting communicas (phonetic) about that. So I thought this was the most benign thing we could possibly do to put this to rest so that everybody gets -- you know, they get what they had to begin with on their property. If it was receiving land, then they would have had the conditional use, no more, no less. Doesn't give them anything by right. We get a road right-of-way. It switches some acres of property that you can environmentally argue should have been done anyway. COMMISSIONER COYLE: So you're in favor of approving this settlement rather than playing around with it with another iteration; is that essentially where you are? COMMISSIONER NANCE: Commissioner Coyle, I felt like, you know, that I did the best I could, and then I wanted to bring it to you. I mean, I will comment further on that, but I wanted to give -- I wanted to stop talking about what I -- you know, what I thought and let you examine what you thought the settlement was like and give you a chance to opine on which features of it you liked or didn't like or didn't like any of it or -- but, you know, if you want a settlement, this is, I think, the very best I could cut it down to -- CHAIRWOMAN HILLER: Jeff, why did we win at the trial court? COMMISSIONER FIALA: Say that again. CHAIRWOMAN HILLER: Why did we win at the trial court? MR. KLATZKOW: Judge Hayes upheld the designations, essentially. CHAIRWOMAN HILLER: Why? Why? MR. KLATZKOW: He simply upheld them. CHAIRWOMAN HILLER: On what basis? Why did he say it was acceptable? MR. KLATZKOW: It did not constitute a taking. CHAIRWOMAN HILLER: It wasn't a taking? 15 Page 15 — Item #12A (Hussey) February 12, 2013 MR. KLATZKOW: Commissioner, I am comfortable continuing with this lawsuit. CHAIRWOMAN HILLER: Okay. MR. KLATZKOW: Okay. I started the conversation, if you want to settle this thing -- and it's an $80 million contingent liability. All right. CHAIRWOMAN HILLER: But we have no proof. MR. KLATZKOW: You will never get a better deal than this. CHAIRWOMAN HILLER: But that's where I don't agree, because we don't have proof of the liability. We have a clear ruling that the RFMUD is okay. MR. KLATZKOW: And I'm not disagreeing with you. What I'm telling you is -- CHAIRWOMAN HILLER: I just don't see it. MR. KLATZKOW: -- if we get an adverse decision from the Second DCA and they kick this back, we will -- CHAIRWOMAN HILLER: Settle at that point. MR. KLATZKOW: -- we will try to settle this again. It will not be on these terms. CHAIRWOMAN HILLER: But, again, I just don't see -- you know, I don't see -- when you negotiate a settlement, it -- you know, you consider your probability of winning and losing. MR. KLATZKOW: Commissioner, they have a contract with a mining company, all right. I doubt very much that mining company's not fully aware of what the value of the rock is there. And this whole -- that whole area is full of rock. Stan Chrzanowski did that demonstration for the board years ago. CHAIRWOMAN HILLER: I cannot rely on any contract with any mining company. I can't be sure how they entered into that agreement, what the relationship with that vendor is -- MR. KLATZKOW: That's fine. CHAIRWOMAN HILLER: You know, the extent of reliance on 16 Page 16 — Item #12A (Hussey) February 12, 2013 that, to me, is a nonissue. The only thing that I could possibly rely on is an independent formal appraisal that tells me the value of the mineable rock in there. And until you have borings that support an appraisal that gives you the valuation, it's not there. COMMISSIONER FIALA: I have to agree with Commissioner Hiller. COMMISSIONER COYLE: Well, I'll support your proposal. COMMISSIONER NANCE: They're in the cat bird's seat, Commissioner Hiller, because they know and we don't. COMMISSIONER HENNING: Tell us -- CHAIRWOMAN HILLER: No. The fact that they have -- COMMISSIONER HENNING: -- other things that you like about this. COMMISSIONER NANCE: Excuse me? COMMISSIONER HENNING: Tell us other things that you like or dislike about this whole agreement. Tell us -- I mean, there's concerns about other things. COMMISSIONER NANCE: You know, my concern here -- in all due respect to Commissioner Hiller, I realize what you say. Everything you said is true, I realize 100 percent. CHAIRWOMAN HILLER: Thank you. COMMISSIONER NANCE: But when we left here last time, we looked at each other and we said, look, we're risk adverse to this. If we can make a settlement that doesn't cost us anything, doesn't cause a great deal of harm, why wouldn't we settle? Why wouldn't we settle? Because we're really not giving anything that they didn't have to begin with. We're changing the designation of a few acres of property that makes sense. CHAIRWOMAN HILLER: Well, because -- I'll tell you why it's very risky. Unless you want to set aside the RFMUD, based on what you're doing here, I see a whole stream of lawsuits from other RFMUD property owners coming forward alleging the same. 17 Page 17 — Item #12A (Hussey) February 12, 2013 So what are we going to do? Settle with everybody? And in that case -- then I say turn it over. Get rid of the RFMUD. Revert everyone back to where they were. And, secondarily, you've got an issue with TDCs (sic). You cannot attribute a $25,000 minimum market value to these TDRs. COMMISSIONER NANCE: That's already done. I agree with you -- COMMISSIONER COYLE: Is there a statute of limitations on this? When does it expire? COMMISSIONER NANCE: And I believe -- I believe that the real liability is that the sending landowners are likely to come forward and say -- MR. KLATZKOW: You've got a program there that doesn't give people economic value for their property. CHAIRWOMAN HILLER: We can't have two people talking. Go ahead, Jeff. MR. KLATZKOW: Your problem -- your essential problem here is that, due to state pressure -- and this was state pressure. This was not a board initiative. You have a program here that has taken away people's rights to develop and giving them back worthless TDRs. CHAIRWOMAN HILLER: Absolutely. MR. KLATZKOW: All right. COMMISSIONER NANCE: That's what it is. MR. KLATZKOW: That's your real problem here is the program. CHAIRWOMAN HILLER: The problem is -- MR. KLATZKOW: But that's not this litigation. CHAIRWOMAN HILLER: Well, they need to sue the state. If this was state mandated, they need to sue the state. COMMISSIONER HENNING: I want to hear about this settlement. I think that's what we're here for, and I want to hear from 18 Page 18 — Item #12A (Hussey) February 12, 2013 you, since you were there, what you like about this and what you don't like. Just tell me -- COMMISSIONER NANCE: There is not a like -- a lot that I don't like about it, because I believe that in this proposal the lands that are going from receiving to sending justifiably we do that. And, you know, the environmental people could argue that. I know the property very well, because the company I used to work for used to own the property. I have walked every acre of that property. I know what it's like. I know what all the 846 properties are like. I live just north of this Hussey property. I have actually trespassed -- public record -- on all that property back in the day when you used to just walk across the countryside. I have walked all of this property. So I do have a certain amount of familiarity. Does not make me an environmental expert, okay. I'm not holding myself out as one. But what I'm saying is to turn the Hussey property in question into receiving land is probably a very good idea. It's adjacent to other receiving lands. It kind of keeps that receiving land together. The current receiving land up in the 846 properties adjoins the Big Corkscrew Sanctuary. It should justifiably be sending land. In fact, some of the suggestions for the 846 properties actually move Immokalee Road through their future development and away from the sanctuary. I think that is something that everybody would support; the environmental people would support. It would make sense. It's just -- you can look at an aerial, and you can just see how that road should be moved away from the sanctuary. So I believe that that switch in and of itself has merit. I think the switch as a settlement methodology is the simplest thing because it doesn't change the RFMUD. It doesn't pull a piece out and give them separate treatment. What it does is it reallocates the land but allows them only to do what they could do anyway if they had that 19 Page 19 — Item #12A (Hussey) February 12, 2013 designation. And they had their lands under the same designations. COMMISSIONER HENNING: Let me ask you another question. The 846 property doesn't give them any rights in the settlement. I mean, it's talking about the -- earth mining -- previously approved -- resolution. THE COURT REPORTER: I can't understand you. COMMISSIONER HENNING: Well, it's saying on the conditional use of the existing earth mining -- what is it doing different? What it this settlement doing different? COMMISSIONER FIALA: What page are you talking about? COMMISSIONER HENNING: This is Page 8 -- or actually 5, Paragraph 8. CHAIRWOMAN HILLER: I like what Commissioner Henning is saying. His point is very -- COMMISSIONER NANCE: Paragraph 8 is the one controversial paragraph in this settlement in my view. COMMISSIONER HENNING: Okay. COMMISSIONER NANCE: And the reason is is it discusses PUD zoning. The first sentence -- it says 846 lands may develop in accordance with the criteria to subdistrict for the RFMUD, no changes. One road may be provided in the sending lands to facilitate a connection to Immokalee Road. That's the road that they contemplate actually moving Immokalee Road. Now, the next two sentences, through the use of PUD, et cetera -- COMMISSIONER COYLE: Then it says PUD zoning shall be discretionary with the board. COMMISSIONER NANCE: Yes. It says it shall not be as of right -- COMMISSIONER COYLE: That's right. COMMISSIONER NANCE: -- which the county attorney says gives us protection and allows a board -- COMMISSIONER COYLE: Make that decision. 20 Page 20 — Item #12A (Hussey) February 12, 2013 COMMISSIONER NANCE: -- by supermajority vote, Commissioner Coyle, you're correctly observed (sic) to do that. So he says that gives us protection. COMMISSIONER COYLE: And the same thing is true of conditional use -- COMMISSIONER NANCE: Yes, sir. COMMISSIONER COYLE: -- for earth mining? COMMISSIONER NANCE: Yes. The last sentences describe extending the TDR bonus credit. And basically what that does is only gives them what they would have had to begin with had they owned that property at an earlier date, because the clock has ticked. CHAIRWOMAN HILLER: I have solution. Can I talk? COMMISSIONER NANCE: Yes, ma'am. CHAIRWOMAN HILLER: I think Commissioner Henning is absolutely on the right track. And if I take what Commissioner Coyle said and what Commissioner Henning said, I think this is all irrelevant. I think all you need to do is leave everything as is and allow them to apply for a conditional use permit to mine on that property, which is discretionary to the board, which we can deny. If all they want is that conditional use -- the right to apply for a conditional use permit, forget everything, settle it by giving them just the right to apply for the conditional use permit for mining. COMMISSIONER FIALA: Let me -- you mean on the Hussey property -- CHAIRWOMAN HILLER: Just on the Hussey property. COMMISSIONER FIALA: -- not transferring property or anything? CHAIRWOMAN HILLER: Forget all the TDRs, forget everything. Just do that and be done with it. Then it comes before the board, and we have a hearing, and we decide whether we give them the right to mine or not. We can choose to deny it. If we denied it, they don't get it and we're done, or they get it. 21 Page 21 — Item #12A (Hussey) February 12, 2013 COMMISSIONER HENNING: I'm beyond that because Commissioner Nance said you need to balance the program. So I'm beyond -- CHAIRWOMAN HILLER: The program is balanced. By doing exactly what I described, the program remains unchanged. COMMISSIONER HENNING: I'm not sure it does. CHAIRWOMAN HILLER: Yeah, it does. COMMISSIONER NANCE: Well, no, you're giving them something you're not giving anyone else. You're going against your own advise. CHAIRWOMAN HILLER: No, no. There's a fundamental difference. What I'm going against is changing the designation of sending and receiving lands. What we're saying here is you leave sending where it is, they continue to have whatever TDRs they received in compensation. They want the right to apply for a conditional use permit. All we do is give them the right to apply for the conditional use permit, and then it's up to our discretion to accept or deny as they present. COMMISSIONER NANCE: What happens to everybody else that had the same thing happen to them? CHAIRWOMAN HILLER: That's the settlement on this. That's the only thing that settles this case, okay. What -- the other cases, all right, are different, because the other cases will argue, we don't want to be sending. We want to be receiving. The difference here is they just want the right to have the option to appeal to get a permit to mine. That's it. The other property owners don't want to have the right to mine. That is the narrow issue. That is what distinguishes this from all the other property owners and what takes out -- that takes the debate off the table with respect to, you know, unwinding the RFMUD. You don't touch the TDRs, you don't touch the sending and 22 Page 22 — Item #12A (Hussey) February 12, 2013 receiving, and all you do is give them the right to come before the board to apply for this permit, which we reserve the right to accept or deny based on whatever our position is. No? I wouldn't do this. COMMISSIONER HENNING: Well, it doesn't give anybody -- nobody else can -- the statute of limitations is already gone on the whole program, unless we change it. I mean, nobody can sue us. So we can just stick to the property. But I'm willing to support you. I just want to understand. I know there is a lot of concerns about traffic and roads. CHAIRWOMAN HILLER: There's a lot of concerns about all of that stuff COMMISSIONER HENNING: So how does this settlement address or when is it going to be settled? Or when is it going to be addressed? COMMISSIONER NANCE: The concerns about roads? COMMISSIONER HENNING: Yes. COMMISSIONER NANCE: Well, they exist with the other six sections of receiving lands you've already got there now. CHAIRWOMAN HILLER: No, no, no. This is different. COMMISSIONER NANCE: There's no difference. CHAIRWOMAN HILLER: Yeah, there is. COMMISSIONER NANCE: Every one of those -- a half of dozen of them have got the right to mine up there and, in fact, it's being mined now. You know, a couple sections of it are being mined. The mining in this area is not going away. Nobody should believe that this settlement is going to impact whether there's mining in that area. There's rock all over the area. It was my understanding long before this was ever an issue contested in court that the best rock in that area was in these sections. That is why they purchased the land. They didn't just go out there in the middle of nowhere and come up and say why -- you know, the Bonness family got involved with Mr. Hussey because they went out 23 Page 23 —Item #12A (Hussey) February 12, 2013 -- they've been doing, you know, seismic blasting looking for rock out there for a long, long time. If Joe Bonness tells me that there's real good rock there, I would have no reason to believe (sic) him, because those conversations were had, Commissioner Coyle, long before this ever came up, long before the RFMUD was conceived. And, you know, I've known him for years and years and years. So I believe that there's a good reason to understand that there's hard rock assets there. Now, whether they'll accept a settlement like what Commissioner Hiller is proposing, I don't know. CHAIRWOMAN HILLER: It's really simple. That's what they're asking for. That's all they want. All they want is the right to apply for a conditional use permit. And if the settlement is you have the right to apply with the understanding that you may be denied, that settles the case, we're done. All -- there shouldn't be any swaps of land between sending and receiving. There should be no awards of, you know, TDRs or taking away TDRs. Just keep it simple, be done with it. COMMISSIONER COYLE: That should have been guidance provided to the county attorney in the beginning. COMMISSIONER NANCE: That was -- the thinking of not bringing the RFMUD is the reason for this. CHAIRWOMAN HILLER: And you're right. That should have been the guidance. But you know what, for all the discussions we've had, sometimes it takes ongoing debate to boil things down to syrup. And I think that where we are right now with the understanding and all the public debate that we've had and input from the community and the perspective for the different commissioners, we are able to simplify, and that's what you were doing. I mean, you were simplifying progressively more and more and more, and I think that we're down to the common denominator. COMMISSIONER COYLE: Yeah. But if you keep doing this -- 24 Page 24 — Item #12A (Hussey) February 12, 2013 how many times have we been going through this and how long have we been trying to resolve this issue? It's been a long time. And if you go back, are you likely to get as good a deal now as you will later, or are they going to say, okay, I'm willing to bet that I can get some portion of that $90 million -- COMMISSIONER NANCE: Mr. Weeks said in the public record that it was clear that we took those people's rights away. He didn't do us any favors when that happened but, unfortunately, that did happen. CHAIRWOMAN HILLER: What did he do? COMMISSIONER NANCE: He said that -- CHAIRWOMAN HILLER: That's bullshit. It doesn't matter what he said. Pardon my French. Strike that again. MR. KLATZKOW: It doesn't get scratched. COMMISSIONER COYLE: Underline that and bold it. CHAIRWOMAN HILLER: Erase the record. It doesn't matter what we said, okay. First of all, all of that was pursuant to settlement negotiations, which means none of it is admissible in court because it was clear it was pursuant to settlement negotiations. So it's inadmissible evidence. It doesn't matter. So that has not hurt us in any way. We have a court ruling that says we were right. They have presented no evidence even though they could repeatedly -- they've never given us more -- COMMISSIONER COYLE: Now we're going to litigate it again. COMMISSIONER NANCE: Commissioner Hiller, getting -- in all due respect to everybody concerned, getting a positive ruling from Judge Hayes in Collier County is like waking up and seeing the sun. CHAIRWOMAN HILLER: No, it isn't. COMMISSIONER NANCE: It most certainly is. CHAIRWOMAN HILLER: It most certainly is not. 25 Page 25 — Item #12A (Hussey) February 12, 2013 COMMISSIONER NANCE: Well, I'm sorry. CHAIRWOMAN HILLER: I personally lost in front of him on a case involving my husband's death, okay. So please don't talk like that. It is not so. COMMISSIONER NANCE: Okay. COMMISSIONER HENNING: You know, Commissioner, you can either do two things. COMMISSIONER NANCE: Not me now. COMMISSIONER HENNING: No, no, no. We asked you to sit down as representative of the board -- COMMISSIONER NANCE: Yes. COMMISSIONER HENNING: -- because it's your district; basically, that's what it is. I can support what we've got here, or I don't think there's an urgency to settle this, quite frankly, I mean, correct me if I'm wrong, or you can try it one more time. COMMISSIONER NANCE: Well, you -- like I say, I think -- I believe the county attorney and I went into the discussion after -- like I say, after we talked to everybody, and everybody said, look, we are risk adverse to this. If we can come up with a fairly benign settlement, it would be good if we could settle this, get it off our plate, and everybody quit spending money, everybody is relatively happy, everybody's got something to be pleased about, and we're done and down the road. I truthfully believe that this settlement does not do harm to the environmentalists. I don't think it does harm to the other people in the RFMUD because it keeps it in balance. It basically is switching their property in and between themselves. It's not -- you know, I don't think it's a big stretch. I think we could go forward, and I think everybody would be reasonably happy. And that's hard to do. It's hard to get, you know, something that everybody's a little -- if everybody's a little bit 26 Page 26 — Item #12A (Hussey) February 12, 2013 dissatisfied, you probably hit it right on the head. That's what my dad used to say. He said, if you go in, you get a settlement and somebody's happy and somebody's sad, you screwed up. But if everybody's a little bit grumpy, you probably hit the nail right on the head. And I think that's kind of where we are on this. But, you know, I'm working with your guidelines. I didn't want to do something that was what I thought you didn't direct us to do. I thought that that's what we were shooting for. And I did the best I could. I mean, we took pages and pages and pages of what I thought were nonsense out of there by just saying, look -- you know, I told them, the other commissioners are not going to support this. This has got to be a pretty benign thing and, you know, let's get down to basics. So I believe on the first pass we did the best we could. COMMISSIONER COYLE: Well, I think you've got three votes to do it. COMMISSIONER NANCE: I honestly believe that we did. If you want to go back -- if you were to tell me, go in and tell them to forget the PUD portion, I would say -- if I was a poker player I'd say we could get it. I'd say if we went in and said, look, if you take these two middle sentences and took all this PUD stuff out that the board -- you'll get a 5-0 vote, do it today and don't think about it too long, I think this thing will be done. COMMISSIONER HENNING: Well, the county attorney said they still need to go through a PUD process. COMMISSIONER NANCE: Right, I mean, but if that annoyed you -- COMMISSIONER HENNING: No. COMMISSIONER NANCE: If it doesn't annoy you, then -- COMMISSIONER FIALA: I'd just like to ask a question. COMMISSIONER HENNING: And, by the way, BS is a form of an opinion, and we're trying to refrain from that. COMMISSIONER FIALA: Did you ever ask them in your 27 Page 27 — Item #12A (Hussey) February 12, 2013 negotiations with them if they just wanted the right to ask for a conditional use? I mean, if it could be that simple -- COMMISSIONER NANCE: Well, they had asked for it by right. They had asked for mining by right. COMMISSIONER FIALA: Not by right. COMMISSIONER NANCE: No, we didn't strip it down that far, no, ma'am. COMMISSIONER FIALA: Oh, okay. COMMISSIONER NANCE: I didn't. I didn't think we could get that. You know, we said, basically, no to 90 percent of what they asked for. I figured we had to leave something on the table. And, frankly, I wanted to bring this back to you and -- like I said, when we started this conversation -- COMMISSIONER COYLE: Wait a minute. I'm not sure you're answering her question. Maybe I misunderstood it. COMMISSIONER NANCE: Did we ask them if that's all they wanted and if we gave them that? COMMISSIONER HENNING: Can I take a break? COMMISSIONER COYLE: No. What I want to make clear, at least my understanding of the settlement is, the post settlement, is that you're taking them back to the rights they had at the time before they were supposedly stripped of their rights. (Commissioner Henning left the conference room.) COMMISSIONER NANCE: Yes, sir. COMMISSIONER COYLE: And that, essentially, was that in order to mine they had to come in and get a conditional use approval from the Board of County Commissioners. COMMISSIONER NANCE: Conditional use, yes, sir. COMMISSIONER COYLE: And in order to get a PUD approved they would have to do the same thing. So we're taking them back to where they were at that point in time. They get no rights for mining or PUD development -- 28 Page 28 — Item #12A (Hussey) February 12, 2013 COMMISSIONER NANCE: That's correct. COMMISSIONER COYLE: -- in this settlement that would give it to them as a matter of right. COMMISSIONER NANCE: And, Commissioner Coyle, my mechanism for doing that, rather than giving them the exception that Commissioner Hiller's proposing, rather than doing that, my thinking was the mechanism would be to simply give them receiving lands, just change the designation a little bit, and that would accomplish everything without ruffling the feathers of all the other receiving landowners and all the other sending landowners. CHAIRWOMAN HILLER: The opposite. You're ruffling all of them. By switching it, you're ruffling it. The fact that you're swapping properties is where you're creating a problem. If you don't swap the properties and you simply say, okay, we will let you come forward and apply, as a matter of right. I mean, the property -- the character of the property is not changing by way of changing the label. To suggest that changing the label somehow changes the characteristics of that property is not so. COMMISSIONER FIALA: See, that's the way I see it as well. CHAIRWOMAN HILLER: So you just -- COMMISSIONER FIALA: Something so simple. CHAIRWOMAN HILLER: Right. You just keep it simple and say, okay, if you want -- COMMISSIONER COYLE: You've got three. CHAIRWOMAN HILLER: Well, you have three, and you don't have the community, okay. So you can pick your poison because there is no one I know that supports what you're advocating. COMMISSIONER COYLE: Let the record show I am gone. (Commissioner Coyle left the conference room.) CHAIRWOMAN HILLER: See you. So, you know, yeah. I mean, if you have three votes, if Commissioner Henning and Commissioner Coyle support it -- 29 Page 29 —Item #12A (Hussey) February 12, 2013 COMMISSIONER NANCE: Commissioner Hiller, I'm not trying to force this down everybody's throat. CHAIRWOMAN HILLER: Oh, I respect that. I understand. COMMISSIONER NANCE: I did what I was asked to do, and I don't think -- CHAIRWOMAN HILLER: I don't think that it accomplishes anything. My point is is to get where you want to go, you can accomplish it by eliminating all the extraneous steps. If what we want to do is give them the right to come before the board and apply for a conditional use permit to mine, then we've accomplished what they claim they have been denied, and their suit goes away, and then, as a matter of discretion, the board can review the evidence and whether or not they want to accept mining on that property. That is the only thing that they are claiming in their suit, and that is that they do not have the right to come before this board to ask for a conditional use permit. So give that one thing to them and nothing more and be done with it. Let them proceed with a conditional use hearing, let them present the evidence to show how they won't hurt the environment, that they won't hurt their neighbors, that, you know, they can justifiably do the business they want to do, and let the board use their discretion to decide, and you're done. Because that is the only claim that they have. COMMISSIONER NANCE: I understand. I'm just trying to -- CHAIRWOMAN HILLER: So eliminate everything else, keep it simple. COMMISSIONER NANCE: I'm just trying to get something that they will accept. CHAIRWOMAN HILLER: Well, that -- they should accept that. That's the basis of their cause of action. COMMISSIONER FIALA: That's what they wanted in the first place, isn't it? 30 Page 30 — Item #12A (Hussey) February 12, 2013 CHAIRWOMAN HILLER: That's their cause of action. Their cause of action is not that they want to change from sending to receiving and blah-blah-blah. Their cause of action is they can't mine because they have not had the right to apply for a permit to allow for that mining, and you're done. (Commissioner Henning returned to the conference room.) COMMISSIONER HENNING: Do we have to give the court reporter a break before we go back? COMMISSIONER FIALA: We sure do. MR. OCHS: You've got a 1:30 time-certain also, and you have to finish the red light. COMMISSIONER HENNING: Are we done? COMMISSIONER NANCE: I don't know where we are. COMMISSIONER HENNING: We're done. CHAIRWOMAN HILLER: I mean, we need to decide. I mean, do you want to -- COMMISSIONER HENNING: You've got enough support on this if you want it. MR. KLATZKOW: The item that's going to come up is this agreement. If any commissioner wants to put a different idea on the table, that's their prerogative. I don't know if the Husseys are interested in the proposal or not. I do not know. CHAIRWOMAN HILLER: Okay. And I'll tell you one thing, if we settle like this, I guarantee you we're going to have a lot more lawsuits coming down on this issue. And I will tell you this is opening up Pandora's box to claim after claim after claim. COMMISSIONER HENNING: But there's a statute of limitations. CHAIRWOMAN HILLER: Obviously not. We've got one sitting right here. MR. KLATZKOW: But that was filed years ago, ma'am. COMMISSIONER HENNING: What do you want? 31 Page 31 — Item #12A (Hussey) February 12, 2013 COMMISSIONER NANCE: It's not me. COMMISSIONER HENNING: Are you ready to go out there and make a motion? COMMISSIONER FIALA: Well, let me ask you this: Can we go out -- COMMISSIONER HENNING: After he answers my question. COMMISSIONER FIALA: Oh. COMMISSIONER NANCE: I think it's an easy -- nobody's going to be happy with it, and that's a good thing. COMMISSIONER HENNING: Are you ready to go out there and make a motion? COMMISSIONER NANCE: Yeah. I think it's a reasonable settlement. MR. KLATZKOW: Then you'll have public speakers. COMMISSIONER HENNING: Hmm? MR. KLATZKOW: You'll have public speakers on this. COMMISSIONER FIALA: Did you ever think of asking them the simple question, is all they want really just the right to be able to apply for a conditional use? COMMISSIONER NANCE: No, ma'am, I did not. CHAIRWOMAN HILLER: So let's go back and ask them that. COMMISSIONER NANCE: I did not because, like I say, when you strip 90 percent of something down -- I was trying to reach something -- like I say, I went in there with the thinking that the Board of County Commissioners is risk adverse. That's what everybody at this table told me. We don't want to go to trial. CHAIRWOMAN HILLER: Not really; totally the opposite. We said very clearly we believe we have a very high chance of prevailing. We wanted the lower court -- COMMISSIONER NANCE: Then why did we go into a settlement? CHAIRWOMAN HILLER: Because you always want to settle 32 Page 32 — Item #12A (Hussey) February 12, 2013 instead of litigate. But when you settle, you settle based on probability of winning and losing. In other words, if I have a stronger -- they probably have a desire to settle because they have a high likelihood of losing. COMMISSIONER NANCE: And we're thinking the same thing. CHAIRWOMAN HILLER: No, we're not. MR. KLATZKOW: No, we have a low outcome of losing -- CHAIRWOMAN HILLER: We have a low outcome of losing. MR. KLATZKOW: -- but we have an $80 million claim. COMMISSIONER NANCE: We have an $80 million claim. CHAIRWOMAN HILLER: Which has not been substantiated. COMMISSIONER FIALA: But if we don't lose -- CHAIRWOMAN HILLER: There's no proof. MR. KLATZKOW: That's fine. CHAIRWOMAN HILLER: For years and years this has been litigated without proof of damages. MR. KLATZKOW: Commissioner, I have no doubt in my heart of hearts they're sitting on tons of rock. CHAIRWOMAN HILLER: I have no idea. COMMISSIONER NANCE: I would -- CHAIRWOMAN HILLER: If I was them, I'd certainly show it. COMMISSIONER NANCE: I would bet a sizable amount of money that they are. COMMISSIONER HENNING: Let me give you -- as long as we're talking dirt, my prediction is if you go out there and make a motion, you're going to have a majority support, and in the meantime, the court reporter can take a break so we can continue our business. COMMISSIONER NANCE: Okay. Let's do that. MR. KLATZKOW: We're officially ended. (The closed session concluded at 1 :05 p.m.) ******* 33 Page 33 —Item #12A (Hussey) February 12, 2013 There being no further business for the closed session, the closed session was adjourned at 1 :05 p.m. 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 . TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICE, INC., BY TERRI LEWIS, COURT REPORTER AND NOTARY PUBLIC. 34 Page 34 — Item #12A (Hussey)