Agenda 02/11/2014 Item # 10B 2/11/2014 10.B.
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EXECUTIVE SUMMARY
Recommendation that the Board of County Commissioners (1) adopts the attached
Resolution which would authorize the use of the uniform method of collecting non-ad
valorem special assessments within the La Peninsula Community to fund the costs of
providing seawall improvements and other waterway improvements for the La Peninsula
community,and (2) to adopt an Ordinance to establish the La Peninsula Seawall Municipal
Service Benefit Unit.
OBJECTIVE: To help provide a financing mechanism through the imposition of special
assessments to fund needed seawall improvements for the La Peninsula community.
CONSIDERATIONS:
This item is a result of an October 8, 2013 Public Petition from attorney Anthony Pires,
representing the La Peninsula Condominium Association. The Public Petition sought the
creation of an MSBU to repair and/or replace the seawall at La Peninsula located on the Isles of
Capri. A copy of the transcript of the Board discussion is attached.
The project requires obtaining appropriate financing. The Finance Committee met on
October 25th to discuss this matter. Representatives of La Peninsula were invited to and did
attend this meeting. It was decided that the firm Nabors, Giblin & Nickerson, who is the
County's primary bond counsel, would draft the necessary legal documents, whose fees would
ultimately be paid by the MSBU.
The first document is a Resolution which would authorize the use of the uniform method
of collecting non-ad valorem special assessments within the La Peninsula Community to fund
the costs of providing seawall improvements and other waterway improvements for the La
Peninsula community. By statute, this Resolution was duly advertised for four consecutive
weeks. Approval of this Resolution would authorize the collection of the special assessments
through the annual ad valorem tax bill. To get this on next year's tax bill, by statute, a copy of
this Resolution must be sent to the property appraiser, the tax collector, and the Department of
Revenue by January 10 (or if the property appraiser, tax collector, and local government agree to
an extension, March 10), so that absent such an extension, this is the final Board meeting which
this can occur.
The proposed Ordinance has no such deadline, however, counsel for the La Peninsula
Condominium Association has requested that both items be heard at this meeting.
It should be noted that as a condition of financing, Collier County may be required to
obtain an ownership interest in the seawall. The likely interest would be an easement
encumbering the seawall over the term of the loan,which our best guess is ten years. Approving
the Resolution and MSBU today will not bind the Board should this issue come up in the future.
FISCAL IMPACT: None to the County. All costs will be borne by the MSBU.
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GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: This proposed Resolution and Ordinance have been reviewed
by the County Attorney, and are approved as to both form and legality. Majority vote is needed
to both adopt the Resolution and the Ordinance. —JAK
RECOMMENDATION: That the Board of County Commissioners (1) adopts the attached
Resolution which would authorize the use of the uniform method of collecting non-ad valorem
special assessments within the La Peninsula Community to fund the costs of providing seawall
improvements and other waterway improvements for the La Peninsula community, and (2) to
adopt an Ordinance to establish the La Peninsula Seawall Municipal Service Benefit Unit.
Prepared by: Jeffrey A. Klatzkow, County Attorney,
Attachments: Proposed Resolution, Proposed Ordinance, Transcript of Public Petition, Proof of
Advertising.
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RESOLUTION 2013 -
A RESOLUTION OF THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA
ELECTING TO USE THE UNIFORM METHOD OF
COLLECTING NON-AD VALOREM SPECIAL
ASSESSMENTS LEVIED WITHIN CERTAIN PORTIONS
OF THE UNINCORPORATED AREA OF THE COUNTY
DESCRIBED HEREIN; STATING A NEED FOR SUCH
LEVY; PROVIDING FOR THE MAILING OF THIS
RESOLUTION; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the Board of County Commissioners (the "Board") of Collier
County, Florida (the "County") is contemplating the imposition of special assessments
over a number of years to fund the cost of providing seawalls and other waterway
improvements; and
WHEREAS, the Board intends to use the uniform method for collecting non-ad
valorem special assessments imposed over a number of years for the cost of providing
such services and facilities to property within the County described herein, as authorized
by Section 197.3632, Florida Statutes, as amended, because this method will allow such
special assessments to be collected annually commencing in November 2014, in the same
manner as provided for ad valorem taxes; and
WHEREAS,the Board held a duly advertised public hearing prior to the adoption
of this resolution ("Resolution"), proof of publication of such hearing being attached
hereto as EXHIBIT A; and
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
COLLIER COUNTY, FLORIDA:
1. Commencing with the Fiscal Year beginning on October 1, 2014, and with
the tax statement mailed for such Fiscal Year, the Board intends to use the uniform
method of collecting non-ad valorem assessments authorized in Section 197.3632,
Florida Statutes, as amended, to collect special assessments imposed over a number of
years to fund the cost of providing seawalls and other waterway improvements. Such
non-ad valorem assessments may be levied within a portion of the unincorporated area of
the County. A legal description of such area that may be subject to the imposition of
such special assessment is attached hereto as EXHIBIT B and incorporated herein by
reference.
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2. The Board hereby determines that the levy of such non-ad valorem
assessments is needed to fund the cost of providing seawalls and other waterway
improvements within the area described in EXHIBIT B hereto.
3. Upon adoption, the Clerk of the Circuit Court as Clerk to the Board, is
hereby directed to send a copy of this Resolution by United States mail to the Florida
Department of Revenue, the Collier County Tax Collector, and the Collier County
Property Appraiser by January 10, 2014.
4. This Resolution shall take effect immediately upon its adoption
THIS RESOLUTION ADOPTED, after motion, second and majority vote on
this the 10th day of December,2013.
ATTEST: BOARD OF COUNTY COMMISSIONERS
DWIGHT E. BROCK, Clerk COLLIER COUNTY, FLORIDA, AS THE
GOVERNING BODY OF COLLIER
COUNTY
By: By:
Deputy Clerk GEORGIA A. HILLER, ESQ.
CHAIRWOMAN
Approved as to form and legality:
Jeffrey A. Klatzkow
County Attorney
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EXHIBIT A
PROOF OF PUBLICATION OF NOTICE OF HEARING
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EXHIBIT B
LEGAL DESCRIPTION
The proposed assessment area would be located in the following potential area
(known locally as "La Peninsula"):
BEGINNING AT THE NORTHEAST CORNER OF SECTION 6, TOWNSHIP
52 SOUTH, RANGE 26 EAST, COLLIER COUNTY, FLORIDA, RUN SOUTH 1
DEGREE 11 MINUTES 25 SECONDS WEST FOR 30.0 FEET; THENCE RUN
NORTH 88 DEGREES 48 MINUTES 27 SECONDS WEST FOR 380.00 FEET;
THENCE RUN SOUTH 1 DEGREE 11 MINUTES 33 SECONDS WEST FOR 90.00
FEET; THENCE RUN SOUTH 20 DEGREES 32 MINUTES 44 SECONDS EAST FOR
272.34 FEET, TO A POINT ON A CERTAIN BULKHEAD LINE AS RECORDED IN
BULKHEAD LINE PLAT BOOK 1, PAGE 8, OF THE PUBLIC RECORDS OF
COLLIER COUNTY, FLORIDA; THENCE RUN THE FOLLOWING COURSES,
ALONG THE SAID BULKHEAD LINE: SOUTH 69 DEGREES 27 MINUTES 16
SECONDS WEST FOR 443.05 FEET; THENCE RUN SOUTH 74 DEGREES 20
MINUTES 53 SECONDS WEST FOR 900.00 FEET, TO A POINT OF CURVATURE;
THENCE RUN 496.98 FEET ALONG THE ARC OF A CURVE, CONCAVE TO THE
NORTHEAST, HAVING A RADIUS OF 185.00 FEET, AND SUBTENDED BY A
CHORD HAVING A BEARING OF NORTH 28 DEGREES 41 MINUTES 32.5
SECONDS WEST AND A LENGTH OF 360.46 FEET, TO A POINT OF TANGENCY;
THENCE NORTH 48 DEGREES 16 MINUTES 02 SECONDS EAST, FOR 712.63
FEET, TO THE END OF THE BULKHEAD LINE; THENCE RUN SOUTH 88
DEGREES 48 MINUTES 27 SECONDS EAST, ALONG THE NORTH LINE OF SAID
SECTION 6, 1209.85 FEET, TO THE POINT OF BEGINNING; CONTAINING 17.81
ACRES, MORE OR LESS.
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ORDINANCE NO.2013-
AND ORDINANCE CREATING THE LA PENINSULA
SEAWALL MUNICIPAL SERVICE BENEFIT UNIT;
PROVIDING A PURPOSE AND GOVERNING BODY;
PROVIDING FOR FUNDING; PROVIDING FOR
CREATION OF THE LA PENINSULA SEAWALL
ADVISORY COMMITTEE; PROVIDING FOR THE
DUTIES OF THE COUNTY MANAGER; PROVIDING FOR
CONFLICT AND SEVERABILITY; AND PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS, recently the Board of County Commissioners (the "Board") of Collier
County. Florida (the "County") was informed that certain property owners in the geographic
area known locally as `La Peninsula" have requested the Board to coordinate the construction
and funding of seawalls and other waterway improvements to benefit the property owners in
such area: and
WHEREAS, the Board has determined that the creation of a municipal service benefit
unit is the best method for implementing and funding seawalls and other waterway
improvements located therein.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF COLLIER COUNTY, FLORIDA:
SECTION 1. AUTHORITY. This Ordinance is adopted pursuant to the
provisions of Chapter 125, Florida Statutes,and other applicable law.
SECTION 2. CREATION OF THE MUNICIPAL SERVICE BENEFIT
UNIT. There is hereby created and established the La Peninsula Seawall Municipal Service
Benefit Unit (the "MSBU"). The boundaries of the MSBU shall initially be as set forth in
1N}11141 1 A attached hereto and incorporated herein by reference.
SECTION 3. PURPOSE AND GOVERNING BODY. The MSBU is created
for the purpose of coordinating the repair/replacement/construction and funding of seawalls
and other waterway improvements to benefit the property owners within the MSBU. The
governing body of the MSBU shall be the Board.
SECTION 4. FUNDING. For the purpose of providing funds to carry out the
purpose of the MSBU, the Board shall consider imposition of special assessments in
accordance with Chapter 122, Article 77, of the Code of Laws and Ordinances of Collier
County. Florida and other applicable law.
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SECTION 5. CREATION OF THE LA PENINSULA SEAWALL ADVISORY
COMMITTEE. •
A. Concurrent with the passage of the Ordinance, a five (5) member advisory board
to he known as the La Peninsula Seawall Municipal Service Benefit Unit Advisory Committee
(the "Advisory Committee) is hereby established in accordance with Collier County Ordinance
2001-55.
B. Members of the Advisory Committee shall be permanent residents owning real
property within the MSBU and electors of Collier County.
C. Advisory Committee shall make recommendations to the Board of County
Commissioners concerning the following matters and subjects:
1. the selection and retention of professional engineer(s) to prepare reports, studies
and analysis concerning the scope, size, nature, design and extent of the seawall repair or
replacement project and assessment methodologies relating to the funding of the
implementation of the project, including the financing thereof.
2. the size, cost and manner of financing the seawall repair or replacement project,
including the assessment methodologies relating to the funding of the implementation of
the project.
3. the preparation of bid documents, the selection of contractors and award of
contract to perform the seawall repair or replacement project.
4. the annual budget of the MSBU.
The Advisory Committee shall report to and advise the Board on matters related to the
MSBU. The Board shall have the final authority as to any recommendation. The Advisory
Committee shall adopt procedures by which it shall operate and elect officers as it deems
necessary. All members of the Advisory Committee shall serve without compensation.
SECTION 6. DUTIES OF THE COUNTY MANAGER. The duties of the
County Manager or his or her designee shall be: (a) to administer the activities of the MSBU
in accordance with established policies of the board and guidelines adopted by the Advisory
Committee; (b) to coordinate the imposition of special assessments to provide funding for the
MSBV in accordance with the guidance provided by the Board and the Advisory Committee;
and (c) to attend all Advisory Committee meetings.
SECTION 7. CONFLICT AND SEVERABILITY. In the event this Ordinance
conflicts with any other Ordinance of the County or other applicable law, the more restrictive
shall apply. If any court of competent jurisdiction holds any phrase or portion of the
Ordinance invalid or unconstitutional, such portion shall be deemed a separate, distinct and
independent provision and such holding shall not affect the validity of the remaining portion.
SECTION 8. EFFECTIVE DATE. This Ordinance shall take effect upon filing
with the Florida Department of State.
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PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier
County. Florida, this day of , 2013.
ATTEST: BOARD OF COUNTY COMMISSIONERS
DWIGHT E. BROCK. Clerk COLLIER COUNTY, FLORIDA
I3\ : By:
, Deputy Clerk GEORGIA A. HILLER, ESQ.
CHAIRWOMAN
Approleo}Ea5 to form and-legality:
Jeffrey A. Klatzkow
County' ttorney
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COLLIER COUNTY
Board of County Commissioners
Item Number: 10.10.8.
Item Summary: Recommendation that the Board of County Commissioners (1) adopts the
attached Resolution which would authorize the use of the uniform method of collecting non-ad
valorem special assessments within the La Peninsula Community to fund the costs of providing
seawall improvements and other waterway improvements for the La Peninsula community, and
(2) to adopt an Ordinance to establish the La Peninsula Seawall Municipal Service Benefit Unit.
This item was approved for reconsideration at the January 14, 2014 BCC Meeting.
Meeting Date: 2/11/2014
Prepared By
Name: BrockMaryJo
Title: Executive Secretary to County Manager, County Managers Office
2/3/2014 1:15:46 PM
Submitted by
Title: Executive Secretary to County Manager, County Managers Office
Name: BrockMaryJo
2/3/2014 1:15:47 PM
Approved By
Name: OchsLeo
Title: County Manager, County Managers Office
Date: 2/4/2014 4:58:58 PM
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OFFICE OF THE COUNTY ATTORNEY
MEMORANDUM
TO: Commissioner Tom Henning, Chairman, District 3
Commissioner Tim Nance,Vice-Chairman,District 5
Commissioner Donna Fiala, District 1
Commissioner Georgia Hiller, District 2
Commissioner Fred W. Coyle, District 4
COPY TO: Leo Ochs, County Manager
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FROM: Jeffrey A. Klatzkow, County Attorney 1 it
DATE: January 30, 2014
RE: La Peninsula
Background
At the January 14, 2014 BCC meeting, Mr. Jared Grifoni, representing the Libertarian
Party of Collier County, petitioned the Board with a request that the Board rescind the recently
enacted Ordinance No. 2013-70, which established the La Peninsula Seawall Municipal Service
Benefit Unit (MSBU), and rescind Resolution No. 2013-292, which established a special
assessment for funding seawall improvements. During the discussion of this Public Petition, the
Board requested that the County Attorney provide a legal memorandum in support of the Board's
legal authority to enact this Ordinance and Resolution. A copy of the transcript of this item is
attached as back-up to this item.
Based on the discussion, it is my understanding that the Libertarian Party's primary
concern centers on Art. VII, Sec. 10 of the Florida Constitution. This is an entirely fair issue for
discussion.
To assist the Board and further the public discussion, I have attached as back-up Art. VII,
Sec. 10 with annotations to all relevant case law and AGO decisions as reported by Lexis. I have
also attached a copy of Nabors & Giblin's opinion on this matter, together with an e-mail stream
I had with them on the subject of a bond validation proceeding. Nabors & Giblin is recognized
throughout Florida for their expertise in local government law and public financing and have
served for many years as the County's primary bond counsel. For the sake of brevity, I will not
repeat the arguments set forth in their memo but instead supplement their memo with my
additional thoughts on this matter.
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Discussion
Fla. Const. Art. VII, § 10(2013)provides as follows:
§ 10. Pledging credit
Neither the state nor any county, school district, municipality, special district, or agency of any
of them, shall become a joint owner with, or stockholder of, or give, lend or use its taxing power
or credit to aid any corporation, association, partnership or person; but this shall not prohibit
laws authorizing:
(a) the investment of public trust funds;
(b) the investment of other public funds in obligations of, or insured by, the United States or
any of its instrumentalities;
(c) the issuance and sale by any county, municipality, special district or other local
governmental body of (1) revenue bonds to finance or refinance the cost of capital
projects for airports or port facilities, or(2) revenue bonds to finance or refinance the cost
of capital projects for industrial or manufacturing plants to the extent that the interest
thereon is exempt from income taxes under the then existing laws of the United States,
when, in either case, the revenue bonds are payable solely from revenue derived from the
sale, operation or leasing of the projects. If any project so financed, or any part thereof, is
occupied or operated by any private corporation, association, partnership or person
pursuant to contract or lease with the issuing body, the property interest created by such
contract or lease shall be subject to taxation to the same extent as other privately owned
property.
(d) a municipality, county, special district, or agency of any of them, being a joint owner of,
giving, or lending or using its taxing power or credit for the joint ownership, construction
and operation of electrical energy generating or transmission facilities with any
corporation, association, partnership or person.
*********************************************************************
Article VII, Sec. 10, Florida Constitution, prohibits the state and its subdivisions from
using their taxing power or pledging public credit to aid any private person or entity. The
purpose of this constitutional provision is "to protect public funds and resources from being
exploited in assisting or promoting private ventures when the public would be at most only
incidentally benefitted." Bannon v. Port of Palm Beach District, 246 So. 2d 737, 741 (Fla. 1971).
However, if the expenditure primarily or substantially serves a public purpose, the fact that the
expenditure may also incidentally benefit private individuals does not violate Article VII,
Sec. 10. See Poe v. Hillsborough County, 695 So. 2d 672 (1997)
The central issue then is whether the proposed project is for a public purpose. There is
both a legal and a factual component to this analysis.
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The legal component rests with Florida Statutes Sec. 170.01, which provides as follows:
170.01 Authority for providing improvements and levying and collecting special assessments
against property benefited.—
(1) Any municipality of this state may, by its governing authority:
(f) Provide for the construction or reconstruction of seawalls.
Implicit in this statute is the Legislative finding that"the construction or reconstruction of
seawalls" in and of itself serves a public purpose, which is a prerequisite for the expenditure of
public funds. Although the statute is limited to municipalities, it strikes me that a public purpose
is a public purpose, no matter whom the governing body is. The engineering reports previously
submitted to the Board would support that finding that the work required falls within the
"reconstruction" of a seawall, rather than routine repairs and maintenance. This matter could be
further explored during the reconsideration hearing, and is a factual issue for the engineers to
opine on and for the Board to make a determination.
A separate and factual component of this analysis is whether the Board finds that the
contemplated work serves a public purpose (and better yet, that the benefit to La Peninsula is
"incidental"). The Attorney General, in AGO 1990-37, opined that the "City of West Palm
Beach may lawfully expend municipal funds to construct a seawall on private property if the city
commission determines that such a project satisfies a public purpose." This does not mean that
the Board's decision can be based on thin air; if challenged, there must be something in the
record that supports the finding. If anything in the record supports the determination, Courts are
loath to second guess the legislative determination.
The fact that this is an MSBU, with the local residents paying for this benefit, is also
relevant to this issue. The Attorney General opined, in AGO 2002-48, that although county
funds may not be used to maintain or repair privately-owned roads and related infrastructure or
privately-owned water and sewer systems in private communities, the county, however, may
furnish such services if provision is made for payment of all actual costs by the owner or owners
of the private road or water or sewer system to the county, and it is determined that such a
program serves a public purpose.
Accordingly, for the reasons set forth above and in the accompanying Nabors Giblin
opinion, I believe that the Board was within its legislative authority in establishing the La
Peninsula Seawall Municipal Service Benefit Unit. With that said, this particular MSBU has
raised sufficient opposition to warrant a bond validation proceeding. The proceeding is
specifically designed to determine the very issues raised here and would bring the matter to
finality, as the judicial determination as to whether the bond is lawful forever resolves the issue.
See Lipford v. Harris, 212 So. 2d 766 (Fla. 1968) It is the County Attorney's belief that since
the estimated costs of the bond validation proceeding is approximately one-half of one percent of
the estimated costs of the project, such a proceeding, viewed as a form of insurance, is the
prudent course of action. The proceeding would be ripe to commence if and when financing is
secured.
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CONSTITUTION OF THE STATE OF FLORIDA
REVISED IN 1968 AND SUBSEQUENTLY AMENDED
ARTICLE VII. FINANCE AND TAXATION
Fla. Const. Art. VII, § 10(2013)
§ 10. Pledging credit
Neither the state nor any county, school district,municipality, special district,or agency of any of them,
shall become a joint owner with,or stockholder of,or give, lend or use its taxing power or credit to aid
any corporation, association,partnership or person;but this shall not prohibit laws authorizing:
(a)the investment of public trust funds;
(b)the investment of other public funds in obligations of,or insured by,the United States or any of its
instrumentalities;
(c)the issuance and sale by any county, municipality, special district or other local governmental body
of(1)revenue bonds to finance or refinance the cost of capital projects for airports or port facilities, or(2)
revenue bonds to finance or refinance the cost of capital projects for industrial or manufacturing plants to
the extent that the interest thereon is exempt from income taxes under the then existing laws of the United
States,when, in either case,the revenue bonds are payable solely from revenue derived from the sale,
operation or leasing of the projects. If any project so financed, or any part thereof, is occupied or operated
by any private corporation,association,partnership or person pursuant to contract or lease with the
issuing body,the property interest created by such contract or lease shall be subject to taxation to the
same extent as other privately owned property.
(d)a municipality,county, special district, or agency of any of them,being a joint owner of,giving,or
lending or using its taxing power or credit for the joint ownership,construction and operation of electrical
energy generating or transmission facilities with any corporation, association,partnership or person.
Caselaw:
1. An agreement for a private commercial development company's long-term use of vacant land owned by
an airport authority did not violate the constitutional prohibition against joint ownership.Although an
option to ground lease required the authority to construct a road extension, it had already been planned
and budgeted, so the authority was not using public funds to create a prohibited joint ownership;the
authority's obligation to provide land for wetlands mitigation did not make the parties to the agreement
joint owners; and the agreement did not meet all of the elements of the test for a joint venture,such as
sharing losses or having the ability to bind each other.Jackson-Shaw Co. v.Jacksonville Aviation Auth.,
8 So. 3d 1076, 2008 Fla.LEXIS 2398(Fla. 2008).
2. Supreme Court of Florida does not agree that the term "joint owner" in Fla. Const.art.VII, § 10
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necessarily equates to the term "joint venturer" or the term "partner."Jackson-Shaw Co.v.Jacksonville
Aviation Auth., 8 So. 3d 1076,2008 Fla. LEXIS 2398(Fla.2008).
3.Where plaintiff developer sued defendant local aviation authority, alleging the authority's development
agreement/lease with the developer's competitor violated Fla. Const.art.VII, § 10,because the authority
would become a"joint owner"and would require a pledge of public credit to aid the competitor, because
the issues depended on unsettled state law, it was prudent to certify the questions presented to the Florida
Supreme Court under Fla. Const.art. V, § 3(b)(6).Jackson-Shaw Co. v.Jacksonville Aviation Auth., 508
F.3d 653, 2007 U.S. App.LEXIS 27240(11th Cir.2007).
4.The purchase of the property by a water management district from the purpose of Everglades
restoration serves the public purposes of furthering Everglades restoration and the management of water
resources and,therefore, satisfies the requirements of Art. VII, § 10,Fla.Const.Miccosukee Tribe v. S.
Fla. Water Mgmt. Dist.,48 So. 3d 811,2010 Fla. LEXIS 1975 (Fla. 2010).
5. Because revenue bonds issued pursuant to the Florida Development Finance Corporation Act of 1993,
Fla. Stat. § 288.9602 et seq., did not pledge public credit or taxing power,the bonds did not violate Fla.
Const. art. VII, § 10. State v.Florida Dev. Fin. Corp.,650 So. 2d 14, 1995 Fla.LEXIS 205 (Fla. 1995).
6. Florida Const. art.VII, § 10 provides that the prohibition on the pledge of public credit shall not apply
to the investment of public trust funds. State v. Florida Dev. Fin.Corp., 650 So. 2d 14, 1995 Fla. LEXIS
205 (Fla. 1995).
7.The use of bond funds to complete secondary road projects, the bond issue having been validated and
no appeal having been prosecuted from the validation,was for a public purpose even though the
properties to be benefited by the roads were owned and held by private persons;the expenditure,
therefore, was not a violation of the state constitution.Lipford v.Harris,212 So.2d 766, 1968 Fla. LEXIS
2182(Fla. 1968).
8. Purchase of all of the capital stock of private transportation corporations was not in the nature of a
pledge or loan of the credit of the state which was condemned by Fla. Const.(1885)art. IX, § 10 (now
Fla. Const.art. VII, § 10), because after the sale the county was the sole owner of the transportation
system. State v. Dade County, 142 So.2d 79, 1962 Fla. LEXIS 2892 (Fla. 1962).
9. Lease by a public entity to a private entity is not per se invalid under Fla. Const.art. VII, § 10. Because
such arrangements are not per se invalid,a public entity thus does not become a joint owner with a private
entity merely by entering into a lease. Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So. 3d 1076,
2008 Fla. LEXIS 2398(Fla.2008).
10. Fla. Const. (1885)art. IX, § 10(now Fla. Const.art. VII, § 10)does not prevent a county board of
public instruction from accepting a bid for liability insurance from a mutual insurance company, where
the insured becomes a member of the company and is entitled to vote at all meetings, but where the only
interest obtained by the insured other than protection is the availability of any rebates, and where the
insurance contract prohibits assessment if a deficit occurs. Dade County,Bd.of Public Instruction v.
Michigan Mut.Liability Co., 174 So. 2d 3, 1965 Fla. LEXIS 3412(Fla. 1965).
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11. Leases involving properties financed by revenue bonds, which were created prior to the effective date
of Fla.Const. art.VII, § 10(c),were not subject to ad valorem taxes under that provision because it was
prospective in its application, as spelled out in the schedule found at Fla. Const. art.XII, § 7. Dade
County v. Pan American World Airways, Inc., 275 So. 2d 505, 1973 Fla.LEXIS 4695 (Fla. 1973).
12. Citizens'group challenged a 99-year lease of public land by a municipality to a nonprofit corporation,
contending it was prohibited by Fla. Const.(1885)art. IX, § 10(now Fla. Const. art.VII, § 10);the city's
lease of public land to establish a public horticultural library was proper because the group received no
pecuniary gain from its activities and because the lease contained restrictions prohibiting private gain.
Raney v.Lakeland, 88 So.2d 148, 1956 Fla. LEXIS 3779(Fla. 1956).
13.Neither Fla. Const. art.VII, § 10 nor Fla.Const.art.VIII, §2(c)prohibits the legislature from
enacting the Industrial Development Financing Act,Fla. Stat. § 159.25 et seq.,which authorizes any
municipality to issue revenue bonds to finance a manufacturing plant located within or without the
municipal limits or without regard to municipal boundaries. State v. Riviera Beach,397 So.2d 685, 1981
Fla. LEXIS 2637 (Fla. 1981).
14. Citizens'group challenged a 99-year lease of public land by a municipality to a nonprofit corporation,
contending it was prohibited by Fla.Const. (1885)art. IX, § 10(now Fla. Const. art. VII, § 10); the city's
lease of public land to establish a public horticultural library was proper because the group received no
pecuniary gain from its activities and because the lease contained restrictions prohibiting private gain.
Raney v.Lakeland, 88 So. 2d 148, 1956 Fla. LEXIS 3779(Fla. 1956).
15. Order validating bonds relating to an underlying beach restoration project was proper because, inter
alia,the county was authorized by law to issue bonds to fund a project to restore and renourish the state's
beaches,and the bonds were funded by revenue from the tourist development tax and special assessments
on the properties within the Municipal Service Benefit Unit(MSBU); in turn,the property subject to the
assessment derived a"special benefit" and the assessment was properly apportioned among the specially
benefitting properties.The proposed beach renourishment project served the necessary governmental
responsibility of addressing a serious menace to the economy and general welfare of the people of the
state. The proposed beach renourishment project served the necessary governmental responsibility of
addressing a serious menace to the economy and general welfare of the people of the state. Donovan v.
Okaloosa County, 82 So. 3d 801, 2012 Fla.LEXIS 20 (Fla.2012).
16. An agreement for a private commercial development company's long-term use of vacant land owned
by an airport authority did not violate the constitutional prohibition against joint ownership.Although an
option to ground lease required the authority to construct a road extension, it had already been planned
and budgeted, so the authority was not using public funds to create a prohibited joint ownership;the
authority's obligation to provide land for wetlands mitigation did not make the parties to the agreement
joint owners;and the agreement did not meet all of the elements of the test for a joint venture,such as
sharing losses or having the ability to bind each other.Jackson-Shaw Co.v.Jacksonville Aviation Auth.,
8 So. 3d 1076, 2008 Fla. LEXIS 2398(Fla. 2008).
17. Supreme Court of Florida does not agree that the term "joint owner" in Fla. Const. art.VII, § 10
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necessarily equates to the term "joint venturer" or the term "partner."Jackson-Shaw Co. v. Jacksonville
Aviation Auth., 8 So. 3d 1076, 2008 Fla.LEXIS 2398 (Fla.2008).
18. Lease by a public entity to a private entity is not per se invalid under Fla.Const. art.VII, § 10.
Because such arrangements are not per se invalid,a public entity thus does not become a joint owner with
a private entity merely by entering into a lease. Jackson-Shaw Co. v.Jacksonville Aviation Auth., 8 So.
3d 1076, 2008 Fla. LEXIS 2398(Fla. 2008).
19. When an airport authority agreed to lease vacant land to a private commercial development company,
the authority was not impermissibly pledging its credit to aid the company. The authority had not given,
lent, or used its credit to aid the company;accordingly, the transaction needed only to serve a public
purpose,which was fulfilled to the extent that the revenue might ultimately provide tax relief.Jackson-
Shaw Co. v. Jacksonville Aviation Auth.,8 So.3d 1076,2008 Fla. LEXIS 2398 (Fla. 2008).
20.Jacksonville Aviation Authority's(JAA)transaction with a commercial developer did not run afoul of
Fla. Const.art.VII, § 10. While JAA and the developer might have had a community of interest in the
performance of a common purpose--the success of a commercial development--they did not have a joint
proprietary interest in the subject matter such that they had joint control or right of control in the
development; further,the extension of a road into the development served a public purpose:JAA had
previously budgeted the road improvement as a planned capital project, in accordance with its powers,
and it would retain ownership of the public road.Jackson-Shaw Co. v.Jacksonville Aviation Auth.,510
F. Supp.2d 691,2007 U.S. Dist. LEXIS 844 (M.D. Fla. 2007),affirmed by 562 F.3d 1166,2009 U.S.
App. LEXIS 6163,21 Fla.L.Weekly Fed. C 1647(11th Cir. Fla.2009).
21. Fla. Stat. § 159.01 et seq. contains a legislative determination that private economic development
serves a public purpose and that it is in the public interest to facilitate the financing of capital projects
such as a headquarters facility by the issuance of non-recourse revenue bonds;this legislative
determination is entitled to great weight,particularly since it is consistent with the implicit recognition in
Fla. Const. art. VII, § 10(c),that the public interest is served by facilitating private economic
development. Linscott v.Orange County Industrial Dev. Authority,443 So. 2d 97, 1983 Fla.LEXIS 3204
(Fla. 1983).
22. Where a project was defined in the bond inducement resolution as a capital project for an industrial or
manufacturing plant,within the meaning of Fla.Const. art.VII, § 10(c),and a"project" within the
meaning of Fla. Stat. § 159.27(5), Fla. Stat. ch. 159,part II(as amended by 1980 Fla. Laws ch. 80-287),
and the project served a paramount public purpose and there was no direct or indirect undertaking by the
state or any other public body to pay the bonds from public funds,even if the project was not an industrial
or manufacturing plant within the meaning of art.VII, § 10(c),the legislature was authorized by the
Florida Constitution to provide for the financing of the project by the issuance of industrial development
revenue bonds. State v. Orange County Industrial Development Authority, 417 So.2d 959, 1982 Fla.
LEXIS 2474(Fla. 1982).
23. Revenue bonds for the construction of a nursing home health care facility were properly validated
because the facility served a paramount public purpose and provided only an incidental benefit to a
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private corporation under Fla. Const. art. VII, § 10(c). State v. Leon County, 400 So.2d 949, 1981 Fla.
LEXIS 2738(Fla. 1981).
24.Neither Fla. Const. art. VII, § 10 nor Fla. Const.art. VIII, §2(c)prohibits the legislature from
enacting the Industrial Development Financing Act,Fla. Stat. § 159.25 et seq.,which authorizes any
municipality to issue revenue bonds to finance a manufacturing plant located within or without the
municipal Iimits or without regard to municipal boundaries. State v. Riviera Beach,397 So. 2d 685, 1981
Fla. LEXIS 2637(Fla. 1981).
25.Fla.Const. (1885)art. IX, § 10(now Fla. Const.art. VII, § 10)precluded a county from issuing
revenue anticipation bonds to finance the construction of an industrial plant on public land to be leased to
a private corporation,although the income from the lease was the identical amount needed to pay all the
principal and interest on the bonds. State v. Clay County Development Authority, 140 So. 2d 576, 1962
Fla. LEXIS 2866(Fla. 1962).
26. Trial court properly refused to validate a municipal civic center special obligation bond issue to erect
on one site in the general neighborhood of the city's main business district a combined recreation center,
civic auditorium, parking facility, and marina,where a portion of the issue was to be used to erect marine
shops at the slipside of the marina; such use of bond funds violated the restriction under Fla. Const.
(1885)art. IX, § 10 (now Fla. Const. art.VII, § 10)on a municipality subsidizing private enterprise with
public money. West Palm Beach v. State, 113 So. 2d 374, 1959 Fla. LEXIS 1503 (Fla. 1959).
27.Agreement for the equal exchange of properties between a city and a railroad under the doctrine of
"compensation by substitution" did not violate the constitutional provision of Fla.Const. (1885)art. IX, §
10(now Fla. Const. art. VII, § 10)prohibiting any city from pledging credit to any corporation,
association,partnership or person.Herr v. St. Petersburg, 114 So. 2d 171, 1959 Fla. LEXIS 1592(Fla.
1959).
28.Jacksonville Aviation Authority's(JAA)transaction with a commercial developer did not run afoul of
Fla. Const. art.VII, § 10. While JAA and the developer might have had a community of interest in the
performance of a common purpose--the success of a commercial development--they did not have a joint
proprietary interest in the subject matter such that they had joint control or right of control in the
development; further,the extension of a road into the development served a public purpose: JAA had
previously budgeted the road improvement as a planned capital project, in accordance with its powers,
and it would retain ownership of the public road.Jackson-Shaw Co. v.Jacksonville Aviation Auth., 510
F. Supp.2d 691,2007 U.S.Dist. LEXIS 844 (M.D. Fla. 2007),affirmed by 562 F.3d 1166, 2009 U.S.
App. LEXIS 6163,21 Fla. L. Weekly Fed. C 1647(11th Cir. Fla.2009).
29. A municipality's lease of public lands to a private corporation,for which the primary purpose was to
permit high-rise construction and multi-family dwellings,resulted in benefits to private interests that were
more than incidental, and was therefore invalid pursuant to Fla. Const. art. VII, § 10. Williams v.
Turrentine, 266 So. 2d 81, 1972 Fla.App. LEXIS 6245 (Fla. 4th DCA 1972),reversed by 291 So.2d 572,
1974 Fla.LEXIS 4370(Fla. 1974).
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30. Certificates proposed to be issued by the Suwannee County Development Authority should not have
been validated by the trial court because the proposed use of the certificates violated Fla. Const. (1885)
art. IX, § 10(now Fla.Const. art.VII, § 10) in that the only plan or program envisioned by the authority
at the time of the proceedings in the trial court was the purchase of land and construction thereon of a
building or buildings for lease to a private industry,which the authority hoped to bring into the county.
State v. Suwannee County Development Authority, 122 So.2d 190, 1960 Fla. LEXIS 2196(Fla. 1960),
dismissed by 132 So. 2d 289, 1961 Fla. LEXIS 2282(Fla. 1961).
31. Leases involving properties financed by revenue bonds,which were created prior to the effective date
of Fla. Const.art. VII, § 10(c),were not subject to ad valorem taxes under that provision because it was
prospective in its application,as spelled out in the schedule found at Fla. Const. art. XII, § 7.Dade
County v. Pan American World Airways,Inc.,275 So. 2d 505, 1973 Fla.LEXIS 4695 (Fla. 1973).
32. Order validating bonds relating to an underlying beach restoration project was proper because, inter
alia,the county was authorized by law to issue bonds to fund a project to restore and renourish the state's
beaches,and the bonds were funded by revenue from the tourist development tax and special assessments
on the properties within the Municipal Service Benefit Unit(MSBU); in turn,the property subject to the
assessment derived a "special benefit"and the assessment was properly apportioned among the specially
benefitting properties.The proposed beach renourishment project served the necessary governmental
responsibility of addressing a serious menace to the economy and general welfare of the people of the
state. The proposed beach renourishment project served the necessary governmental responsibility of
addressing a serious menace to the economy and general welfare of the people of the state.Donovan v.
Okaloosa County, 82 So.3d 801,2012 Fla,LEXIS 20 (Fla.2012).
33. Because the construction and improvements at a county hospital did not fall within the specifically
enumerated exceptions contained in Fla. Const.art.VII, § 10(c), the tax-exempt status of the bonds was
irrelevant to the issue of their validity. Wald v. Sarasota County Health Facilities Authority, 360 So.2d
763, 1978 Fla. LEXIS 4893 (Fla. 1978).
34. Florida Industrial Development Financing Act, Fla. Stat. § 159.25 to Fla. Stat. § 159.43,was enacted
pursuant to Fla. Const. art. VII, § 10,which created an exception to prior case law invalidating bonds that
were secured in part by a mortgage on a project.As set out in Fla. Stat. § 159.30(1),the Act permitted a
project mortgage where the direct beneficiary of the project was a private institution or individual; under
Fla. Stat. § 159.33 and Fla. Stat. § 159.35,the mortgaging provisions do not directly or indirectly pledge
the credit of the State of Florida or its political subdivisions. State v. Putnam County Dev. Authority, 249
So. 2d 6, 1971 Fla. LEXIS 3581 (Fla. 1971).
35. State agency's construction of a cultural trade center did not violate Fla. Const. (1885)art. IX, § 10
(now Fla. Const. art. VII, § 10)because the trade center was intended to strengthen cultural relations
among the countries of the Western Hemisphere and provide means to display the industrial, commercial,
agricultural,and other products of the state,which was in all respects for the benefit of the people of the
state and could not be said to amount to a pledge or loan of the credit of the state to any individual,
company, corporation or association. State v.Inter-American Center Authority, 84 So.2d 9, 1955 Fla.
LEXIS 4080(Fla. 1955).
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36. Water control and improvement bonds proposed by the Northern Palm Beach Water Control District
which included roadway improvements to provide access to water management facilities and aid in the
development of reclaimed land did not violate Fla. Const.art.VII, § 10,because the proposed bond issue
did not involve the district using its taxing power or pledging public credit to aid a private person or entity
and a public purpose was involved.Northern Palm Beach County Water Control Dist.v. State,604 So.2d
440, 1992 Fla. LEXIS 1112(Fla. 1992).
37. The purchase of the property by a water management district from the purpose of Everglades
restoration serves the public purposes of furthering Everglades restoration and the management of water
resources and,therefore,satisfies the requirements of Art.VII, § 10,Fla.Const.Miccosukee Tribe v. S.
Fla. Water Mgmt.Dist.,48 So. 3d 811,2010 Fla.LEXIS 1975 (Fla. 2010).
38. Trial court erred in invalidating the bond ordinance levying a surtax that would finance a new stadium
because the bond issue did not violate Fla.Const. art.VII, § 10(c)as the two million dollar private benefit
to the football team was incidental to the greater public purpose of increased trade and recreation to the
citizens of the district. Poe v. Hillsborough County, 695 So.2d 672, 1997 Fla.LEXIS 686(Fla. 1997).
39. If an undertaking is for public purposes, Fla. Const. (1885)art. IX, § 10(now Fla.Const. art. VII, §
10)is not violated even though some private parties may incidentally benefit.Poe v.Hillsborough
County, 695 So. 2d 672, 1997 Fla.LEXIS 686(Fla. 1997).
40. Because revenue bonds issued pursuant to the Florida Development Finance Corporation Act of 1993,
Fla. Stat. § 288.9602 et seq., did not pledge public credit or taxing power,the bonds did not violate Fla.
Const. art. VII, § 10. State v. Florida Dev. Fin. Corp., 650 So. 2d 14, 1995 Fla.LEXIS 205 (Fla. 1995).
41. Florida Const. art.VII, § 10 provides that the prohibition on the pledge of public credit shall not apply
to the investment of public trust funds. State v. Florida Dev. Fin. Corp., 650 So.2d 14, 1995 Fla.LEXIS
205 (Fla. 1995).
42. Because the construction and improvements at a county hospital did not fall within the specifically
enumerated exceptions contained in Fla. Const.art. VII, § 10(c),the tax-exempt status of the bonds was
irrelevant to the issue of their validity. Wald v. Sarasota County Health Facilities Authority, 360 So.2d
763, 1978 Fla. LEXIS 4893 (Fla. 1978).
43. Food distribution center and a laundry facility were both "industrial plants" within the meaning of Fla.
Const. art. VII, § 10(c)and Fla. Stat. § 159.27(5),thus they qualified for the issuance of Industrial
Development Revenue Bonds. State v.Jacksonville Port Authority,305 So. 2d 166, 1974 Fla. LEXIS
4038 (Fla. 1974).
44. Agreement by state agency to issue bonds to enable a railroad company to construct railroad facilities
did not violate Fla. Const.(1885)art. IX, § 10 (now Fla.Const.art.VII, § 10)because the bonds were
issued for a public purpose;the issuance facilitated the acquisition of railroad right of ways in order to
construct a public expressway. State v.Tampa-Hillsborough County Expressway Authority,216 So.2d
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455, 1968 Fla.LEXIS 2040(Fla. 1968).
45. Florida municipal port authority was authorized under Fla. Const.(1885)art.IX, § 10(now Fla.
Const. art. VII, § 10)to issue special fund certificates to fund the construction and rent of facilities to be
used to improve the service of a local airport because the facilities would primarily serve a public
purpose. State v. Okaloosa County Airport&Industrial Authority, 168 So. 2d 745, 1964 Fla.LEXIS 2450
(Fla. 1964).
46. Purchase of all of the capital stock of private transportation corporations was not in the nature of a
pledge or loan of the credit of the state which was condemned by Fla. Const. (1885)art. IX, § 10(now
Fla. Const. art.VII, § 10), because after the sale the county was the sole owner of the transportation
system. State v. Dade County, 142 So. 2d 79, 1962 Fla. LEXIS 2892 (Fla. 1962).
47. City's exchange of land agreement with a property owner did not violate Fla.Const.(1885)art. IX, §
10(now Fla. Const.art.VII, § 10),which prohibited any city to obtain money for or to loan its credit to
any corporation,association,or individual,because the compensation by substitution was for a recognized
public purpose and did not amount to a gratuitous aiding of a private entity. State v.Tampa, 113 So. 2d
844, 1959 Fla. LEXIS 1549(Fla. 1959).
48. Issuance of the$2,900,000 revenue bonds was in aid of a valid public purpose and did not violate Fla.
Const. (1885)art. IX, § 10(now Fla. Const. art.VII, § 10). State v. Daytona Beach Racing&
Recreational Facilities Dist., 89 So. 2d 34, 1956 Fla.LEXIS 4075 (Fla. 1956).
49. City's plan to acquire and establish off-street parking facilities and to issue bonds payable solely from
a pledge of net revenues to be derived from such facilities,as well as the pledge of the gross revenues to
be derived from its on-street parking meters as additional security,did not violate Fla. Const.(1885)art.
IX, § 10(now Fla. Const.art.VII, § 10)because the plan was for a valid public purpose,the exercise of
the city's police power in regulating and controlling traffic. Gate City Garage,Inc.v.Jacksonville, 66 So.
2d 653, 1953 Fla. LEXIS 1585 (Fla. 1953).
50. State universities were not in the same taxable category as companies, and therefore an appropriation
of funds to students enrolled in the first approved and accredited medical school established in the state
did not violate Fla.Const.(1885)art. IX, § 7(now Fla. Const. art.VII, § 10)which prohibited the levy of
a tax for any chartered company in the state or the pledging or loaning of the credit of the state to any
individual company, corporation or association. Overman v. State Board of Control, 62 So. 2d 696, 1952
Fla. LEXIS 1928 (Fla. 1952).
51. City's plan to acquire and establish off-street parking facilities and to issue bonds payable solely from
a pledge of net revenues to be derived from such facilities,as well as the pledge of the gross revenues to
be derived from its on-street parking meters as additional security,did not violate Fla. Const.(1885)art.
IX, § 10(now Fla. Const. art.VII, § 10)because the plan was for a valid public purpose,the exercise of
the city's police power in regulating and controlling traffic. Gate City Garage, Inc. v. Jacksonville, 66 So.
2d 653, 1953 Fla. LEXIS 1585 (Fla. 1953).
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52. Redevelopment authority with a stated public purpose of acting to plan and develop a county was
given the power to purchase and lease land and that power extended to private enterprises without
violating Fla. Const.(1885)art.IX, § 10(now Fla. Const.art. VII, § 10). State ex rel. Ervin v.Cotney,
104 So. 2d 346, 1958 Fla.LEXIS 1463 (Fla. 1958),limited by State v. Clay County Development
Authority, 140 So. 2d 576, 1962 Fla. LEXIS 2866(Fla. 1962).
53. Certificates proposed to be issued by the Suwannee County Development Authority should not have
been validated by the trial court because the proposed use of the certificates violated Fla. Const.(1885)
art. IX, § 10(now Fla.Const.art. VII, § 10)in that the only plan or program envisioned by the authority
at the time of the proceedings in the trial court was the purchase of land and construction thereon of a
building or buildings for lease to a private industry,which the authority hoped to bring into the county.
State v. Suwannee County Development Authority, 122 So. 2d 190, 1960 Fla.LEXIS 2196(Fla. 1960),
dismissed by 132 So. 2d 289, 1961 Fla. LEXIS 2282(Fla. 1961).
54. State universities were not in the same taxable category as companies,and therefore an appropriation
of funds to students enrolled in the first approved and accredited medical school established in the state
did not violate Fla. Const. (1885)art. IX, § 7(now Fla. Const. art.VII, § 10)which prohibited the levy of
a tax for any chartered company in the state or the pledging or loaning of the credit of the state to any
individual company, corporation or association.Overman v. State Board of Control,62 So. 2d 696, 1952
Fla. LEXIS 1928(Fla. 1952).
If Opinions Of Attorney General:
1. The partnership between a wholly-owned,not-for-profit subsidiary of a hospital district and a private
for-profit medical provider would appear to constitute a joint ownership in violation of Fla. Const.Art.
VII§ 10,thereby precluding the leasing of district property to such partnership.AGO 2010-08,2010 Fla.
AG Lexis 8.
2. Within the limits prescribed by the Florida Constitution,a hospital district has broad authority to enter
into business arrangements with other business entities and to provide support for other business entities
which provide health care services.However,this broad authority may only be exercised within the scope
of the provisions of the Florida Constitution. AGO 2010-08,2010 Fla. AG Lexis 8.
3. A lease by a public entity to.a private entity is not per se invalid under Fla. Const.Art.VII§ 10.AGO
2010-08, 2010 Fla.AG Lexis 8.
4. The applicability of the prohibitions contained in Fla. Const. Art. VII § 10 are dependent in part on
whether a valid public purpose is involved.AGO 2009-32,2009 Fla. AG Lexis 45.
5. The Brevard County Board of County Commissioners may advance funds to the Odyssey Charter
School for the construction of school facilities with the condition that the funds be repaid from
educational impact fees collected from a development that will create educational impacts mitigated by
the charter school.AGO 2006-48, 2006 Fla.AG Lexis 51.
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6.A town may use municipal funds to pay for special events insurance coverage for the town and for
organizations and others using municipal property following a determination that this expenditure serves
a municipal purpose.AGO 2006-12,2006 Fla.AG Lexis 8.
7. In order to satisfy Article VII,section 10,the expenditure of county funds must be for a public purpose.
Ultimately,however,the determination of whether the expenditure of county funds fulfills a county
purpose is one that the board of county commissioners, as the legislative body of the county,must make.
AGO 2005-02,2005 Fla. AG LEXIS 3.
8. Donations, regardless of the source,received by the county and deposited into the county general
revenue account are considered to be county funds,the expenditure of which must serve a public purpose.
Such funds may be disbursed to the family of a deputy sheriff killed in the line of duty provided the
county commission makes an appropriate legislative determination that such an expenditure serves a
public purpose and the funds have been appropriately budgeted therefor. AGO 2004-37,2004 Fla. AG
LEXIS 34.
9. Donations,regardless of the source,received by the county and deposited into the county general
revenue account are county funds,the expenditure of which must serve a public purpose. Such funds may
be disbursed to the family of a deputy sheriff killed in the line of duty provided the county commission
makes an appropriate legislative determination that such an expenditure serves a public purpose and the
funds have been appropriately budgeted therefor.AGO 2004-37,2004 Fla.AG LEXIS 83.
10. The Santa Rosa Island Authority possesses no inherent or home rule powers. Created by special law
for a specific, limited purpose,the authority may exercise only those powers and authority as have been
granted by law. In light of the nature of the authority and the specific powers granted by Chapter 24500,
1947 Laws of Florida, as amended,the Santa Rosa Island Authority has no authority to commit funds to
assist a charter school providing educational services within the district.AGO 2004-26,2004 Fla. AG
LEXIS 37.
11. Generally, county funds may not be used to maintain or repair privately-owned roads and related
infrastructure or privately-owned water and sewer systems in private communities.The county,however,
may furnish such services if provision is made for payment of all actual costs by the owner or owners of
the private road or water or sewer system to the county and it is determined that such a program serves a
county purpose. AGO 2002-48, 2002 Fla. AG LEXIS 93.
12.The Bradford County Board of County Commissioners may expend public funds to assist a county
volunteer fire department that provides services within Bradford County in making payments on the
purchase of a new fire truck.AGO 2002-18,2002 Fla. AG LEXIS 31.
13. The Bradford County Board of County Commissioners may donate money to a nonprofit corporation
to help maintain a former school building that will be used by various community organizations,private
parties,and governmental entities,provided the county commission determines that a county purpose is
served by such donation and proper safeguards are implemented to assure the accomplishment of that
purpose. AGO 2002-18,2002 Fla.AG LEXIS 31.
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14. While the City of Belleview may operate and maintain its own gas distribution system, enter into a
franchise agreement, or contract with a private entity to purchase natural gas which it would then sell to
the city's residents, it may not enter into a partnership with a private corporation for the delivery of natural
gas service without violating Article VII, section 10,Florida Constitution,which forbids the use of the
state's taxing power for a private purpose.AGO 2002-07,2002 Fla.AG LEXIS 24.
15. A county,upon making the appropriate legislative finding that an expenditure serves a county
purpose,may loan monies to a special district for the construction of a water and sewer system serving
the special district and the neighboring unincorporated area of the county. AGO 2000-55,2000 Fla. AG
Lexis 71.
16. Payment of bonuses to existing employees for services they have already performed and been
compensated for would violate Fla. Stat. § 215.425 unless there is a preexisting employment contract
making such bonuses a part of their salary or the city council has adopted a lump-sum bonus payment
program to reward outstanding employees whose performance exceeds standards,provided the bonus
payment is not included in the employee's regular base rate of pay or carried forward in subsequent years.
AGO 2000-48,2000 Fla. AG Lexis 51.
17. It would not be a violation of Fla. Const. Art.VII § 10 for a school district to serve as a charter
member of a nonprofit corporation formed in accordance with 26 U.S.C. § 501(c)(3)when the school
district has no ownership interest or shareholder interest in the corporation and no school district funds are
being committed to the operation of the corporation.AGO 1999-29, 1999 Fla.AG Lexis 29.
18. County funds may be paid to a nonprofit corporation to be used for the stated purpose of educating the
electorate as to a proposed constitutional amendment affecting the county if the county commission
makes the requisite legislative findings as to the purpose of the expenditure and the benefits accruing to
the county, and if sufficient safeguards are adopted to ensure that such funds are being used for the
purpose for which they are intended.AGO 1998-33, 1998 Fla.AG Lexis 33.
19. A county may expend county funds to support or oppose an issue before the electorate, provided that
the county commission makes the requisite legislative findings as to the purpose of the expenditure and
the benefits accruing to the county from such expenditure. Such a determination is one that the board of
county commissioners, as the legislative and governing body of the county,must make; it cannot be
delegated to this, or any other, office. AGO 1998-33, 1998 Fla. AG Lexis 33.
20. Water management district may purchase real property by buying a private, for-profit corporation and
immediately dissolving the corporation in order to transfer fee title to the property to the district without
violating Fla. Const. Art. VII § 10, if the transaction is structured such that the district assumes no
liabilities of the corporation. AGO 1998-20, 1998 Fla. AG Lexis 12.
21. If the governing board of trustees of the hospital district determines the lease to be in the best interests
of the district,the board may lease its unimproved real property on a long-term basis for nominal
consideration to a not-for-profit corporation to be used by the corporation to construct and operate a
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hospice house for the benefit of district residents.AGO 1996-90, 1996 Fla.AG Lexis 90.
22. The Technology Development Board may provide funding to private,for-profit corporations,where
the investment of such funds fulfills the legislatively prescribed purpose of the board and is carried out in
the manner provided by law. AGO 1996-50, 1996 Fla. AG Lexis 43.
23. Accordingly,while a hospital district may enter into contracts with other not-for-profit and for-profit
corporations for the provision of certain health care facilities and expend public funds therefor subject to
the conditions and limitations set forth in its enabling legislation,the district would be precluded from
loaning or extending its credit to a private for-profit corporation.AGO 1996-12, 1996 Fla.AG Lexis 8.
24.The determination of whether the expenditure of county funds serves a county purpose is one that the
board of county commissioners,as the legislative body for the county,must make; however, granting a
temporary easement of thirty days to the county would not appear to satisfy the public purpose
requirement for the expenditure of public funds if the expenditure of such funds is not otherwise
permissible.AGO 1994-89, 1994 Fla. AG Lexis 116.
25. The city may make industrial and economic development grants to privately owned businesses if it
makes the appropriate legislative determination that such grants serve a municipal purpose.AGO 1994-
53, 1994 Fla. AG Lexis 71.
26. City of Sebastian is authorized to advance sick leave hours to city employees through utilization of an
employee sick leave pool.AGO 1994-23, 1994 Fla.AG Lexis 43.
27. Port authority may enter into a land purchase contract in which funding is derived from future
proceeds from the property and from non-ad valorem tax revenues without violating Fla. Const.Art.VII§
10 and Fla. Const.Art.VII § 12 since the property would be transferred to the authority with no mortgage
and the authority's only obligation would be the payment of a promissory note from non-ad valorem tax
revenues and profits from the operation of the property. AGO 1993-44, 1993 Fla.AG Lexis 42.
28. The acquisition of additional port facilities by port authority would fulfill a public purpose.AGO
1993-44, 1993 Fla.AG Lexis 42.
29. While a municipality would not be precluded from taking back a mortgage on surplus municipal
property,the subordination of that mortgage to a mortgage secured by the purchaser for the construction
of improvements would appear to be precluded by Fla. Const. Art.VII § 10 when the primary beneficiary
of such a subordination would be the purchaser,a private for profit corporation.AGO 1992-71, 1992 Fla.
AG Lexis 71.
30. The expenditure by the City of Fort Myers of the proceeds of a special assessment bond issue under
Ch. 170, F.S.,to reimburse the private developer of an area specifically benefited by the improvements
for the cost of obtaining Development of Regional Impact approval is not authorized. AGO 1992-22,
1992 Fla.AG Lexis 9.
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31. While the private party is liable for the payment of the excise tax on documents transferring property the county,the county, if it determines that such payment serves an identifiable county purpose,may
pay, on behalf of the private party,such excise taxes;determination of whether such payment constitutes
a county purpose in any given instance is one which must be made by the county commission.AGO
1992-07, 1992 Fla.AG Lexis 13.
32. Braden River Fire Control and Rescue District may create a system of impact fee credits for impact
fees collected in advance but must collect the entire fee prior to issuing a building permit or issuing
construction plan approval;District's Board of Commissioners possesses no authority to amend the
district's enabling legislation by ordinance,resolution, agreement,or other document.AGO 1992-04,
1992 Fla. AG Lexis 2.
33. City of Bartow pursuant to its home rule powers may authorize the use of the municipal golf course
by private persons and require payment of the charges for the greens fees for such persons at the end of
each month without violating Fla. Const. Art. VII§ 10. AGO 1990-41, 1990 Fla.AG Lexis 41.
34. In Florida, a riparian property owner possessed a qualified common law right to build a dock or wharf
out to navigable waters in the absence of a statute;this matter requires resolution of mixed questions of
law and fact which is the province of the courts.AGO 1990-37, 1990 Fla. AG Lexis 37.
35. City of West Palm Beach is authorized by Ch. 166, Fla. Stat.,and Fla.Const. Art.VII § 2(b)to enact
regulations relating to dock location and construction; however,any such regulation which results in a
limitation of or complete prohibition of the exercise of the riparian right to "wharf out"to navigable
waters may subject the city to liability for just compensation for the taking of such a right.AGO 1990-37,
1990 Fla.AG Lexis 37.
36. I cannot conclude that the building of a seawall by the City of West Palm Beach to facilitate the
construction and maintenance of a public thoroughfare would defeat the riparian rights of an upland
owner who has specifically reserved such rights in lands encumbered by a dedicated easement for such
thoroughfare; City of West Palm Beach may lawfully expend municipal funds to construct a seawall on
private property if the city commission determines that such a project satisfies a public purpose. AGO
1990-37, 1990 Fla. AG Lexis 37.
37. While the collection of waste,thereby eliminating a source of pollution,may well constitute a
substantial benefit to the incorporated areas, such a determination involves questions of fact and mixed
questions of law and fact which the county commission must address; similarly,while the provision of
waste collection services constitutes a public purpose for which public funds may be expended,the
legislative findings and determination as to the propriety of a particular expenditure is one which the
county commission must make,and cannot be delegated to this office. AGO 1990-30, 1990 Fla.AG
Lexis 30.
38. The adoption of a plan whereby customers pay impact fees in several payments,rather than one
payment,with interest added does not violate Fla. Const. Art. VII § 10.AGO 1990-16, 1990 Fla.AG
Lexis 5.
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39. On-duty police officers may not be pre-authorized to act as the agents of a private landowner for the
purpose of communicating to an alleged trespasser an order to leave the private property pursuant to Fla.
Stat. § 810.09(2)(b).AGO 1990-08, 1990 Fla. AG Lexis 13.
40.A municipality may enter into a contract which requires payments from non-ad valorem taxation
sources beyond the end of the fiscal year without approval by referendum and subject to the appropriation
of funds, if such action is not prohibited by an ordinance or charter provision;however,obligations for a
term in excess of one year and funded from ad valorem sources are subject to approval by eligible voters.
AGO 1989-58, 1989 Fla.AG Lexis 67.
41.A county may expend tourist development tax revenues to finance beach cleaning and maintenance
without the necessity of establishing the mean high-water line so long as such expenditure paramountly
serves a public purpose,and there is compliance with the requirements of Ch. 161,F.S.,and Fla. Stat. §
253.77, where applicable.AGO 1986-68, 1986 Fla. AG LEXIS 42; 1986 Op.Atty Gen. Fla. 161.
42. The Board of County Commissioners of Lafayette County is authorized to donate revenue sharing
monies(as restricted by Fla. Stat. § 218.25,)to a nonprofit senior citizens organization so that county
residents who are members of the club may take field trips provided that the program is open to the public
and is determined by the board of county commissioners to serve a valid public purpose and provided that
proper safeguards are implemented to assure accomplishment of the public purpose. AGO 1986-44, 1986
Fla.AG LEXIS 66; 1986 Op. Atty Gen. Fla. 102.
43. Unless and until legislatively amended,the Division of Communications is not authorized to permit
the cooperative use of the communications facilities by a private for profit corporation on a reciprocal,
nonprofit basis; additionally,the state or any of its agencies would appear to be constitutionally
prohibited by § 10,Art.VII, State Const., from entering into a joint venture with a private corporation for
the joint ownership, construction and operation of communications facilities and systems.AGO 1985-49,
1985 Fla. AG LEXIS 55; 1985 Op.Atty Gen. Fla. 140.
44. Although the operations of the Parole and Probation Commission may be somewhat benefited
thereby,the renting of permanent automobile parking spaces by the commission for certain employees
thereof who drive their automobiles to work is primarily of personal benefit to the employees involved
and is an unauthorized expenditure of public funds.AGO 1974-305, 1974 Fla.AG LEXIS 60.
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TAMPA FORT MYERS
2502 Rocky Point Drive 12731 World Plaza Lane
Suite 1060 Suite 2
Tampa,Florida 33607 Nabors Fort Myers,Florida 33907
(813)(813)281-0129 Tel Giblin (239)288-4027 Tel
(813}281-0129 Fax (239)288-4057 Fax
FORT LAUDERDALE Nickerson TALLAHASSEE
p,q. 1
110 East Broward Boulevard 1500 Mahan Drive
Suite 1700 Suite 200
Fort Lauderdale,Florida 33301 ATTORNEYS AT LAW Tallahassee,Florida 32308
(954)315-3852 Tel (850)224-4070 Tel
(850)224-4073 Fax
January 23, 2014
VIA E-MAIL
TO: Jeffrey A. Klatzkow, Esq., Collier County Attorney
FROM: Nabors, Giblin&Nickerson, P.A.
RE: Creation of MSBU for the purpose of financing seawall improvements
You requested a memo regarding the legal issues associated with the
establishment by the County of a municipal service benefit unit and the levy of special
assessments within the MSBU to finance certain seawall capital improvements. We have
been informed that the proposed improvements will be financed with the proceeds of a
taxable loan or other indebtedness that will be issued by the County and secured solely by
the proceeds of the special assessments. It is our understanding that the seawall abuts a
navigable waterway within the County and currently is located on private property. We
have been informed that prior to the County commencing any work associated with the
improvements the private owners will grant an easement to the County to allow for the
improvements to be made by the County and for ongoing maintenance.
Pursuant to Section 125.01(1)(q), Florida Statutes, the County may establish a
municipal service benefit unit or MSBU to provide a variety of enumerated services and
facilities including "other essential facilities." Such services and facilities are authorized
under this statutory provision to be funded with special assessments levied within the
MSBU.
It is well settled in Florida that a valid special assessment is not a tax. See Klemm
v. Davenport, 129 So. 904, 907 (Fla. 1930) and Sarasota County v. Sarasota Church of
Christ, Inc., 667 So. 2d 180 (Fla 1995). A county may impose a special assessment by
ordinance utilizing its home rule powers as an alternative to utilizing the provisions of
Chapter 170, Florida Statutes. See City of Boca Raton v. State, 595 So. 2d 25 (Fla.
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Jeffrey A. Klatzkow, Esq., County Attorney
January 23, 2014
Page 2
1992). The Florida Supreme Court in City of Boca Raton v. State also articulated the
now well established "two-prong test" to determine the validity of a special assessment.
In sum, the test provides that to be a valid special assessment the property assessed must
derive a special benefit from the improvement or service provided and the special
assessment must be fairly and reasonably apportioned among the property owners
consistent with the special benefit provided. In imposing any special assessment the
County must ensure that it satisfies both prongs of the test. Under current Florida law,
the findings of special benefit and proper apportionment of costs among assessed
properties are considered legislative in nature and presumed correct unless the
determinations are found to be arbitrary. See Donovan v. Okaloosa County, 83 So. 3d
801 (Fla. 2012).
As noted, it is our understanding that the County intends to issue taxable debt to
fund the seawall improvements, such debt to be payable from and secured by the special
assessments to be levied. Under Florida law, when debt is issued by a governmental
entity and public funds are to be used to secure and repay such debt it must be determined
that the project to be financed serves a valid public purpose. See Poe v. Hillsborough
County, 695 So. 2d 672 (Fla. 1997) and Donovan v. Okaloosa County. As is the case
with the special assessment analysis, great deference is given to the legislative bodies in
making these determinations. However, whether a particular debt issuance meets this
standard depends upon the unique facts and circumstances associated with the financing.
From the limited facts presented to us, it appears that there are a variety of
significant County public purposes in providing seawall improvements (i.e., safety,
environmental, recreational, aesthetic, and others). The facts also support the proposition
that the seawall facilities constitute "essential facilities." However, we have found no
debt-related Florida cases addressing these types of improvements or with facts
substantially similar to those in the County's current situation. It is not possible to predict
with any certainty whether a court would find that the proposed improvements meet the
public purpose and essential facilities requirements in light of the current facts.
Accordingly, if the County determines to move forward with these transactions we
strongly advise that the County avail itself of the provisions of Chapter 75, Florida
Statutes, and seek a validation of the proposed debt issue. A successful validation of the
debt would provide the County with a judicial determination that the debt, the underlying
special assessments and the creation of the MSBU are valid and lawful. We will be more
than happy to discuss the particulars of this expedited judicial proceeding with you.
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KlatzkowJeff
From: Miller, Steve[smiller @ngn-tampa.com]
Sent: Thursday, January 09, 2014 5:03 PM
To: KlatzkowJeff
Cc: IsacksonMark; Traber, Chris
Subject: RE: La Peninsula MSBU
Jeff—Chris and I had a chance to speak with Greg this afternoon. For a straightforward, uncontested validation that
doesn't get appealed we usually bill between$20,000 and $25,000. We just completed one for the City of North Port
that was uncontested and I believe our bill was approximately$22,000. Greg indicated that if it were to be contested
the bill could easily approach$40,000. If either the County or any intervener were to appeal the Circuit Court decision
(which is directly to the State Supreme Court)there would obviously be additional cost.
As far as timing goes,the validation process itself largely depends upon how quickly a hearing can be set. You can
expect it to take at least 3—4 months. If the Circuit Court ruling it is appealed it could take between 12-18 months to
get before the Florida Supreme Court. In addition, prior to validation the Board would have to adopt all assessment
legislation and the debt instruments and have the easement in place prior to filing a complaint.
I think we should probably get on the phone and discuss this at your convenience. I was always a little unsure of the
cost-benefit analysis for this transaction with regard to the HOA and with these additional costs,delays and unknowns I
think the analysis gets even trickier.
Nabors
�ll11&
NIC rson,.
•
Steven E. Miller,Esq.
Nabors,Giblin&Nickerson, P.A.
2502 Rocky Point Drive, Suite 1060
Tampa, Florida 33607
Phone 813/281-2222
Fax 813/281-0129
smi ller @ngn-tampa.com
From: KlatzkowJeff[mailto:JeffKlatzkow @colliergov.net]
Sent: Wednesday,January 08, 2014 11:15 AM
To: Miller, Steve
Cc: IsacksonMark;Traber, Chris
Subject: FW: La Peninsula MSBU
Steve:
There is growing opposition to this MSBU. Would a bond validation proceeding be in order prior to the
imposition of the assessments? If so,please provide me with your best estimate of the legal fees the County
would likely incur, as well as the length these proceedings typically take. I won't hold you to them, as I
understand how these things can mushroom. I need an answer no later than COB Monday, and preferably
sooner, as there is.a Public Petition on this(attached below) set for next Tuesday's BCC meeting.
Jeffrey A. Klatzkow
County Attorney
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1fCo er County
Office of the County Manager
MEMO
Date: February 3, 2014
To: Leo E. Ochs, Jr., County Manager
From: Tim Durham, Executive Manager Corporate Business Operations
Subject: Proposed La Peninsula MSBU — Public Purpose Query
At the January 14, 2014, BCC meeting (Item 6A), the County Manager was
directed to provide the "primary public purpose" for the County's participation in the
seawall repair at La Peninsula. The contemplated action by the County would include
the creation of a MSBU at La Peninsula and the validation of a debt issuance to repair
the seawall there.
Based on research specific to La Peninsula and other similarly situated Florida
communities,there are at least two possible "public" concerns arising from the failure of
the seawall at La Peninsula:
1. Loss of Tax Revenue — The condominiums at La Peninsula are very close to
seawall. For example, the condominiums in the 400 block are only 20 feet or so
from the seawall at its closest point. The taxable value of that same block of
condominiums is approximately $6.3 million. A failure of the seawall in the
vicinity of the 400 block could cause structural damage devaluing those
properties and thereby reducing tax revenue.
2. Public Relations Impact — If a failure like the one described above were to occur
and if it were to become widely publicized or known, there could be an adverse
impact on those contemplating Collier County as a place to visit, reside or
conduct business. With so many attractive alternatives to choose from for those
wishing to enjoy Florida, our community could be eliminated if there is a concern
over the soundness and safety of our basic infrastructure.
Notes: It should be noted that there appears to be no immediate public safety concern at this time.
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January 14, 2014
CHAIRMAN HENNING: And maybe we can provide public
access to that for fishing --
COMMISSIONER HILLER: Well, let the County Manager
come back and tell us what is -- based on the facts as they exist, what
is the primary public purpose, not the primary private purpose but the
primary public purpose of doing this.
And listening to the discussion, which I think was very Nil, I
would like to add one thing to the County Attorney and% at is, you
know, one thing that we do whenever we issue public dettjs we have
a bond validation or essentially a debt validationparing with the
courts. And -- .
d it would be it would be mformatrve4he Board if we
could find out how that process could be applied here,before any debt
would be issued through the county.
MR. KLATZKOW: I've had that;- iiscussion with outside counsel
previously and it will be part of my executive summary.
COMMISSIONER HILLER: I'm stir ?
MR. KLATZKOW: It will be part ofmy executive summary.
COMMISSIONER HILLER: Fantastic. That's really great.
:
So I've made my moon 3And if I could have a second?
CHAIRMAN-HENNING: Yeah, you already have a second by
Commissioner Nanbe
COMMISSIONER HILLER: Okay, thank you.
CHAIN HENNING: Okay, let's -- since this is
reconsideration, it's going to come back, why don't we hold any other
questions or comments 'til later. Is that okay'?
COMMISSIONER FIALA: Just a fast one, though.
I would suggest to the La Pen people, if this seawall is providing
silt into the pass, you might want to investigate that as you go forward,
because that is definitely a public purpose. Thank you.
CHAIRMAN HENNING: All in --
MR. OCHS: Mr. Chairman, I'm sorry, I don't want to the belabor
this, but just procedurally for the public's edification, and I'd ask the
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UUN"�
Board of Collier County Commissioners
Donna Fiala Georgia A. Hiller, Esq. Tom Henning Fred W. Coyle Tim Nance
District 1 District 2 District 3 District 4 District 5
MEMORANDUM
Date: January 14, 2014
To: Leo E. Ochs,Jr., County Manager
From: Commissioner Georgia Hiller, District 2
RE: Reconsideration of Item 6A-January 14, 2014 BCC Meeting
Please consider this a request for reconsideration for the January 28, 2014 BCC Meeting
agenda.
Request for Reconsideration of Item#6A from the January 14,2014 BCC Meeting titled:
Public Petition request from Jared Grifoni representing the Libertarian Party of Collier County,
requesting that the Board of County Commissioners rescind Ordinance 2013-70 which
established the La Peninsula Seawall Municipal Service Benefit Unit (MSBU)and rescind
Resolution 2013-292 which established a special assessment for funding the seawall
improvements. Both Ordinance 2013-70 and Resolution 2013-292 were adopted by the
Board of County Commissions on December 10, 2013.
Thank you. 7-
t
y
3299 Tamiami Trail East,Suite 303•Naples,Florida 34112-5746.239-252-8097•FAX 239-252-3602
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January 14, 2014
to go. Great night club, by the way, Dusk? Love it. Very nice.
CHAIRMAN HENNING: Next item?
Item #6A
PUBLIC PETITION FROM JARED GRIFONI REPRESENTVG
THE LIBERTARIAN PARTY OF COLLIER COUNTY,
REQUESTING THAT THE BOARD OF COUNTY w;
COMMISSIONERS RESCIND ORDINANCE 2013- " a:; ICH
ESTABLISHED THE LA PENINSULA SEAWALL, MUNICIPAL
SERVICE BENEFIT UNIT (MSBU) AND REST 1
RESOLUTION 2013-292 WHICH EST agtLISHE I SPECIAL
ASSESSMENT FOR FUNDING SEAWAhVIPROVEMENTS.
BOTH ORDINANCE 2013-70 AND:;RESO LUTION 2013-292
WERE ADOPTED BY THE BOARD OF COUNTY
COMMISSIONS ON DECEMBL 2013 - MOTION TO BRING
E
BACK, STAFF TO PROVII .A LEGAL OPINION AND
RECOMMENDATIONS FOR FURTHER ACTION AT A FUTURE
MEETING — APPROV ; RE OONSIDERATION WILL BE
PROVIDED ON FEBRIIARY 11, 2014 BCC CO NSENT AGENDA
MR. OCHS:: Yes, sir. We move to Item 6 on your agenda this
morning, Puc Petitions. Item 6.A is a public petition request from
Jared Grifoni representing the Libertarian Party of Collier County,
requestig'that the Board of County Commissioners rescind
Ordinance 2013-70 which established the La Peninsula Seawall
Municipal Service Benefit Unit, and rescind Resolution 2013-292,
which established a special assessment for funding the seawall
improvements.
Both ordinances were adopted by the Board of County
Commissioners on December 10th, 2013.
CHAIRMAN HENNING: Mr. Grifoni?
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January 14, 2014
MR. GRIFONI: Good morning, Commissioners. Thank you for
the opportunity to speak to you regarding this creation of the MSBU
for La Peninsula, a private gated community for the purpose of
repairing and replacing their seawall, their existing seawall for the
benefit of the property owners in that development.
Itin
I know I only have 10 minutes today, so I I'm going to t nd
make all this brief There's a lot of issues here. So excuse, me'`i
concise.
First and foremost, though, we need to touch oe Constitution.
The Florida Constitution is definitive -- it's a foundatn for our source
,t
of government, it's the foundation for the F1orida.Statntes, and even
our county ordinances.
Article 7, Section 10 deals with finance anJ taxation. And in
Section 10 it specifically states that neither the state-nor the county or
other entities can lend or use or give its sing power for the credit to
aid any private entity. Now again, it c�aro use the taxing power to
aid any private entity. `
Now, we know that tle are some exceptions to that particular
portion of the constitution: Thy deal with public trust funds,
obligations backedy the United States and so forth.
Seawall repair: d replacement is nowhere to be found. But is
the county Really usingits taxing power here? Because we're talking
about MSB . Well, MSBUs are special assessments that are p aid
back from the property owners within the boundaries of the created
MSBUV--x
Now, in AGO 85-90, Marion County faced a similar issue.
They'rea non-charted county,just like Collier County is And in that
AGO it" vas written that special assessments are distinguishable from
taxes but they are levied under the taxing power.
So again, we do need to fall back to that Constitutional provision.
We are talking about the taxing power here.
Now, if we are the constitutionalists that we say we are, that
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January 14, 2014
really should be the end-all and be-all of this discussion. But really
there's a lot more to go over. And some people say that the
Constitution's a living document, Florida Constitution or the Federal
Constitution. Some people say that it's eroded over time. But the fact
is, we all are here to stand up for the principles of the Constitutn.
Now, the Florida Statutes are the same. Statute 125 -- Section
125, that was the authority under which the MSBU ordinv'efi was
created. Now, in 125.O1.Q, that's the relevant portion. It sits that
MSBUs can be created, they can be utilized, but ontfor certain
teams: For things like fire protection, law enforcemeht street
sidewalks, garbage and trash collection. Aga' awal1 repair and
replacement is nowhere to be found in that: e; There's no seawall
repair or replacement there. mom. s
;:* '''''
And the Statute's very specific. It.deals with public utilities in a
sense, public things that are unrelad to private seawall construction.
Now, 125 is the authors h.slthe ordinance itself And I
received an email from the Ccmytcty Attorney as well, and
Commissioner Hiller, we've •" .c . sed it as well, regarding Florida
Statute 170.
ei
Now, 170, the em that I received from the County Attorney
g
noted it wasn't a legal brf , and I think for good reason. Because 170
doesn't apply tounties at all 170 applies to municipalities. Title 12
is for municipalities, Title 11 is for counties. So 170 doesn't apply
here at ally low -- and it certainly doesn't apply for Isles of Capri,
because Isles'of Capri is an unincorporated area of Collier County, it's
not amunicipality. Collier County isn't a municipality.
Municipalities are charted cities in the State of Florida.
So-we can see whether it's under the constitution or the Florida
Statutes, whether it's 125 or 170, the authority just doesn't exist.
Well, what about the county ordinances? We can look at those
too. 122.2043 of Collier County Ordinances deals with MSBUs.
Well, in that ordinance it says that MSBUs can be created to provide
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January 14, 2014
for water, sewer, streets and other essential facilities.
Now, this piggybacks on 125, we're dealing with the same thing:
Water, sewer, streets and other essential facilities. Essential facilities
are most frequently defined as natural monopolies, things like utilities,
transportation facilities, things of that nature. Again, not seawalls.
Essential facilities are public facilities, not private facilities. ,
So we don't have the authority under the Constitution, tlrida
Statute or the county ordinances anywhere for repair anlitreplacement
of seawalls.
4§..-
K ,a
Now, there's a variety of AGOs out there, • I E ' not going to go
into all of them today, but Flagler County, City o - e Isle, they've
done these things as well -- they've tried tklito these 4f' ngs as well and
they've all been rejected on the grounds th re's no public purpose.
Now, we know that when county funds` :re expended it has to be
done for a public purpose. And at the December meeting Attorney
�i�
Klatzkow mentioned that at the en' oe day public money must be
spent for a public purpose.
So what's the public i ll•ose9 Well, AGO 90.37 is actually even
a little stricter. It's not jus ` • •lie purpose, it's a paramount public
purpose.
Now, like I mentioned, Flagler County had a similar issue. City
of Belle Isle tried to cfeate an MSTU, slightly different but the same
thing, it's jus how they're taxed.
But an MSTU just cover the costs associated with private
commonMareas. That was rejected because there wasn't a public
purpose. It was again the benefit of a private agency. They fell back
on the Constitution, Article 7, Section 10, same thing that we're
talking about here today.
Escambia County, now they're unrelated to Collier County but
they are a non-chartered county in Florida, they have a very clear and
concise policy on MSBUs. Their MSBU book states, quote, the funds
raised are public funds and must be collected, accounted for and spent
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January 14, 2014
in accordance with applicable laws regarding public funds. Only
public property, only public property can be maintained and improved
by an MSBU. Access must be open to all members of the public
equally. In addition, adequate easements are property dedications
must be provided.
So again, what does Escambia County know that for some reason
it seems like we don't know here in Collier County so far? 4:
Code Enforcement as well. We've seen this, what hailed to
Code Enforcement? Have they been, you know, got gg to sleep for
five or 10 years? No, actually not. Code Enforcement has been called
out They have looked at the La Peninsula sel. , 1 back in 2009.
They found that there were minor cracks of no ,o em, normal wear
and tear, and the seawall wasn't in any failure.
Well 2009, that was four, five yews ago now. Well, what about
more recently? 2013, same thing. Tent out to La Peninsula to
e.
inspect the seawall. August ohO 13, ju ` a couple of months before
this issue was even brought beforethe Boar. Well, County Engineer
Jack McKenna, he made a:determination that it's not a health and
safety situation, that the sews needs some minor repairs, that there's
no violation at this time, and that a permit wasn't even required to
make these repairs bause they're so minor.
So what ecactly is going on here? Well, we know in August of
2012 La Peninsuhaoted down 4-3 spending $4,000 for an engineer's
report for.13 .P, $18,000 for a building permit that would have been
good for five years. We know that they had approximately $200,000
it seaall reserves at that time. We know that there was an ongoing
legal dispute between La Peninsula and the former owners of the
seawall`over whether or not the seawall was turned over in proper
condition. That lawsuit happened to be voluntarily dismissed in 2013.
And I don't want to speculate, but again, do we really have all the
facts?
Now, the issue here too is precedent. Precedent's a big one.
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January 14, 2014
Precedent that's going to be set here is very dangerous. We have over
500 homeowners associations in Collier County. And if they all came
looking for the same bailout, because that's what this is, it's a bailout
for mismanagement, you're looking at $2 billion added to coty debt.
Because this money does get added to county debt, even though it's
paid back by the MSBU. .,
Does Collier County really want to get into that situation?
Again, never happened before in the State of Florida, it's new
happened before in Collier County.
Now, we don't even know how it's going to_ ,- financed. It's like
Nancy Pelosi came down to the Collier County B 6 d d and said well,
you've which got to pass this ordinance toViod out w'it's in it We
don't know what's in it.
Commissioner Hiller, even at the December meeting you asked,
you know, how is this going to be financed, who's incurring this debt?
And the answer from Attorney.Klkow is we don't have financing
plans in place yet and I cannQ WRswer that question.
Well, that doesn't really le with a lot of confidence, to be
honest. And I think really it's jusa lack of having the information in
front of us.
The ordinance itself;*gain it says that hey, if there are conflicting
ordinances in etence, if there's conflicting laws, the more strict law
shall apply. So again, we see this -- if you look at the whole picture,
there's a lot f issues here.
Now,I Lippe I've been able to express a lot of these issues in a
clear and concise manner in the short amount of time that we had here.
And I believe that the Commission here is a good one and I believe
that you've all been proceeding in a manner that you believe to be
best, not only for the Board of County Commissioners but for La
Peninsula, as well as Collier County residents, and I think that this
new information really deserves more than 10 minutes of, you know,
rushed conversation here to really be delved into and to look at
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properly,just so it has the proper justice here.
Now, we can argue back and forth about the condition of the
seawall, whether or not this Board owner said this or that Board owner
said that. But it's secondary to the legal and Constitutional authority
that simply doesn't exist.
Now, in summary, the county ordinances don't support WI Code
Enforcement doesn't support this, the AGOs don't support thisrida
Statutes don't support it, and ultimately and most impotly, the
Florida Constitution doesn't support this either. t :
Now, we have a variety of unanswered que dos here. And it's
incumbent upon this Board to exercise the propert li ence on this
MSBU going forward. We certainly don't want to,: into another
situation where there's another lawsuit that is unnecessary that doesn't
need to happen. We need to review al these facts before we go
forward and make sure that this is on 'the proper legal and
constitutional authority.
Now we all are here because bell Fe in fiscal conservatism.
We believe in the proper role_of government. And I think this Board
wishes to continue to folio* those principles, to abide by those
principles, and fra iy those`/Principles unite virtually all of us here in
this room today.
I believe that the only appropriate action that can be had today is
that this Board moves to rescind the ordinance and resolution and it's
brought back up.at the next meeting. I think that this needs to be
done. :There's sob many issues here and it was very difficult to the get
them all into the 10-minute time span here without properly
explaining`them all.
But as you can see, there's a lot to discuss here and I think it's
incumbent that we do look at this again. Thank you.
CHAIRMAN HENNING: You actually have time left.
(Bell sounds.)
CHAIRMAN HENNING: That's the one-minute warning. You
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still have one minute.
MR. MILLER: Actually, that's it.
CHAIRMAN HENNING: That's it?
MR. MILLER: That's it.
CHAIRMAN HENNING: What happened to our yellowutton?
MR. MILLER: I don't know why we did not get a warning n
that, sir. I'll figure that out
CHAIRMAN HENNING: Yeah, fix that. 4
Commissioner Nance?
COMMISSIONER HILLER: It's actually Conic ssioner Hiller.
CHAIRMAN HENNING: Oh, CommissOmer Hiller. I'm sorry.
COMMISSIONER HILLER: But I'll goy name.
CHAIRMAN HENNING: We'll change that need to
change that.
COMMISSIONER COYLE: You look so much alike.
COMMISSIONER HIKER Yea 'Know.
COMMISSIONER N Commssioner Coyle, please.
COMMISSIONER HILEE So first of all, George, you've
presented very well IrtIe 10 min'
inutes you brought a lot of issues
forward.
i,4-. ..
At this stage where ve put forward a request to have this
matter brought.back, I don't believe that this Board has the ability to
rescind the ordinance right here and now, so I don't think that can be
part of any motion.
But I feel that there are enough questions being raised that this
should be brought back. And I think we do need to get definitive
answerson everything that you have put forward. Because we do
want to act legally and we do want to respect the constitution.
And so I would like to make a motion to approve your request to
bring this matter back. And I don't think it should be brought back at
the next meeting, because I think the County Attorney should be given
time to review your questions and do the appropriate level of research
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necessary to come back and inform us as to -- in a formal legal brief
what his position is on all the legal points that you have raised. I
mean, they're important questions.
So I make a motion that we bring this back for a future hearing
and that it be the first hearing in February.
CHAIRMAN HENNING: I'll second that motion. Hoer, the
proper forum would be to write a memo to the County Mana `g+cr�
.
asking for reconsideration. I'm assuming that you're g a 2_� yto do that
COMMISSIONER HILLER: Well, is it really a r- ��A .ideration?
Because it's not really a reconsideration of this. -.an, we approved
it I mean, I can, because I did vote in the majori - t I can do a
request for reconsideration. But in this c
q aikahs is a petition to
review legal questions related to an ordin. -,--„ d if the finding is
that the law doesn't support what is being pr :posed that that ordinance
be rescinded.
So do we need a recons�idera! an can we just move forward in
the following manner? Whichon�t-care. I'll do it whichever way.
MR. KLATZKOW: Mrpreerence is to limit the number of
issues. And I concur w the Chair on this, if you would draft a letter
to the County Managerder the reconsideration ordinance, you are
removing a potential issuer
COMMISSIONER HILLER: Okay. Is that your pleasure,
Commissioner Henning? Would you prefer I do it like that way?
CHAIRMAN HENNING: I'm just saying the process that we set
out in t te.. County`Commissioner meeting ordinance under
reconsi ation a memo should --
e� o u d be sent to
COMMISSIONER HILLER: Wait, a memo is not a problem.
County Manager, would you kindly draft a memo that I'm going
to sign and send back to you? I would really appreciate it. And we
can get that done today and that way we don't fall short of what our
reconsideration ordinance requires.
Is that okay, County Attorney?
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MR. KLATZKOW: Thank you.
COMMISSIONER HILLER: Is that okay with you,
Commissioner Henning?
CHAIRMAN HENNING: That's fine.
Commissioner Fiala, Commissioner Coyle and then
Commissioner Nance.
COMMISSIONER FIALA: Thank you
It looks like this is going to pass, so I wanted to ask the County
Attorney number one, it seems like a lot of this is interpretation, and
everybody interprets everything from their own poinkf view. So as
we're doing this, we have many, many, many, STUs, MSBUs and so
forth.
And so while we're taking this into consideration, I want to know
that -- like for instance, Forest Lakes Rc adway and Drainage, we
never had that before,just as we didn't hake seawalls. Does that then
say that they cannot continue With theihiISTU or MSBU, whatever it
is? `
And what about Peliczi n Bay, they've taken their MSBUs out for
landscaping. And that's wry ndezful and they want to do that and I
support that Butean, is that interpretation? I think that when it
comes back, we beer find out who all can do it or is it just La Pen
that can't do it but everybody else can I think that needs to be decided
here for us
We also have Radio Road East that's funding landscaping
improvements. We also have Pine Ridge, Naples Production Park.
Tese..are,all things that I think again we have to address. If we're
going to',interpret one thing one way, then we better interpret all of
them that way and find out who is getting it and who is not, who's
allowed to keep theirs and who is not.
And also, I would like to know, the County Attorney, do you
have anything to add to some of this stuff?
MR. KLATZKOW: No, I believe this was a lawful ordinance, it
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was lawfully enacted and it falls within what the Board has done in the
past with the MSTUs, MSBUs and --
COMMISSIONER FIALA: Can you talk into your mic?
COMMISSIONER HILLER: Yeah, it's hard to heard.
COMMISSIONER FIALA: I believe that the ordinance*
lawful. It was lawfully enacted. I worked with Nabors-Giblin ois
one. They're the state's leading authority in this area.
Because I did know that we're pushing the boundaries'a hit on
this one, to put it mildly. But I do believe that the al" • had the
authority to do what it did. And if this thing's broug aback, we'll fully
articulate this in executive summary, as requesad by Commissioner
Hiller. '
CHAIRMAN HENNING: Commissi „ yle?
COMMISSIONER COYLE: Yeah, I disagree with the County
Attorney's advice that it has to be reconsidered. I don't think it's a
reconsideration, but I won't belabor toint.
This is a question of factr And`you have your interpretation and
e
we have ours. I think we need;to`trave a discussion concerning that,
and we have to have the5proof presented. I don't think it's necessary
that we go through the reconsideration of this entire process.
I for one have simplan't reconcile the refusal to let residents
tax themselves`to' do what they want to do. I can't think of anything
more democratic Than that process. It doesn't create an obligation for
the rest ofp taxpayers.
Any ibpriis that are to be issued concerning this are secured by a
In on..a the property of the people in La Peninsula, not by any other
taxpayer,
-Sol can't think of anything more democratic than allowing
residents to collect additional funds from themselves to do things they
want to do. But I think those questions have to be answered and I
think it should come back for those specific issues but not for
reconsideration of the entire ordinance. But you can do them both at
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the same time.
CHAIRMAN HENNING: Okay, Commissioner Nance?
COMMISSIONER NANCE: I agree 100 percent with
Commissioner Coyle. I don't want to reconsider the resolution and the
ordinance. I believe all we've done, and it was agreed at the time, to
take the first step to allow people to start to gather facts. Ancrukleed
we need to decide if this is legal action of the Board. And I thi ' 's
the role of the County Attorney to do so. r.
So I see no reason, as Commissioner Coyle discusseto go back
and reconsider the resolution and the ordinance. ` ,, ather address the
issues as the citizens of La Peninsula are addressi , :weir issues and
bringing their proposal forward to the Bo „ At an ime in there the
Board does not find it to be a lawful public- wJ•'-t'ose, then it's certainly
not going to proceed.
So I think we need to answer iimestions, I think a full and open
discussion is in order, but I will n:°i; ilsport a reconsideration.
COMMISSIONER HILLER: A' d, you know, from my
perspective, I don't see tl rocedure of the reconsideration versus
accepting this petition and' utg this -- these issues back on the
agenda I think is s446,f one, a" if a dozen of the other. And if we go
back to have the discussion and the discussion proves that the
ordinance is in fact invalid, then we can make a motion to revoke the
-- to revoke the ordinance --
COMMISSIONER NANCE: At that time
COMMISSIONER HILLER: -- at that time
COMMISSIONER NANCE: Yes, ma'am.
COMMISSIONER HILLER: So it doesn't really matter.
Because really, it's just the procedure I don't think is going to make a
big difference. But I will amend my motion not to make it a
reconsideration and merely to accept the public petitioner's request to
have this matter brought before the Board and explore all the
questions that have been raised in this presentation.
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I would like to further amend my motion by adding one more
thing and that is the primary public purpose. I think staff on the
County Manager's side needs to come back and tell us what is the
primary public purpose of the decision that we made. And I think that
has to be defined. Because that is an important threshold ques t' n.
There are a lot of the issues that are raised by this For example,
we use -- going to the issue of seawalls not being addressee to give
you an example, our CRA which collects ad valorem tax do° Iars from
residents within the CRA uses those tax dollars to r air private
seawalls. We have all voted on that. So that's a ques'$fin -- which is
very different than the question here. Because e question here is can
we allow for a public financing mechanism repaidhrough special
assessments for the repair -- and it's not really theepair, but it really
would be the enhancement of this seawall since, as you properly
pointed out, it's not a repair issue, it's g �. ss a height issue or it's not
high enough or something? '4"
MR. GRIFONI: Yeah, there s a lot of issues. And it's going to
need to be done in 10 or 15.7years again anyway. We'll be back in the
same situation. '
COMMISSIO R HILLER: So again, you know, you've got
the issue of, you knew, the seawall versus the debt versus, you know,
what vehicle and so faith. There are a lot of-- and, you know, what is
the primary public<purpose.
So it's a discussion that should be had because it touches on an
whole hosfdissues that we need to make sure that we're acting
properly on
So"I'll just amend my motion, since I don't think that the majority
wants i ''as a reconsideration, and to me it has the same effect either
way, it brings it back for the questions to be asked and answered.
CHAIRMAN HENNING: Okay, so you're amending yours
motion contrary to what the recommendation of the County Attorney
said; however, you want the County Attorney to come back with a
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legal finding.
COMMISSIONER HILLER: County Attorney, do you have a
problem if we don't do it as a reconsideration? I think it can be done
either way. I'm not disagreeing, I'm just thinking that it can be done
either way.
MR. KLATZKOW: Your issue is that if ultimately you resod
this ordinance you're opening up an argument from La Penii sula that
you did so contrary to your reconsideration ordinance. 4 ,,,
Y ry Y �� s��ply --
it's sort of wearing above the suspenders. By simply bi h g this
back and asking for reconsideration, you've remold.that potential
issue from the table.
COMMISSIONER HILLER: That's important consideration.
COMMISSIONER NANCE: Doesn't "atop the whole
process, though, sir?
MR. KLATZKOW: No.
COMMISSIONER NAVE ' W can they form an advisory
committee if they don't have ajul,
MR. KLATZKOW: Oh;4ye it will stop that process. But if it's
ultimately your desire torehear this thing, it's ultimately your desire to
rescind this thing. By casting this in a dual purpose that was
suggested earlier, you are eliminating one of the potential issues that
could be raised.
COMMISSIC TER HILLER: I see.
MR. KLATZKOW: I'm not saying it's a viable argument, I'm
just saying'' an issue that doesn't --
COMMISSIONER HILLER: I understand. It's not that -- I
understand your point. It's not that it is improper to do it the way I'm
suggesting or can't be done the way I'm suggesting. What you're
saying is to do it by request for reconsideration we are properly
addressing that statute so it can't be alleged that it wasn't brought back
under -- I'm sorry, that ordinance, that it wasn't brought back under
that ordinance.
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MR. KLATZKOW: Correct.
COMMISSIONER HILLER: I understand.
MR. KLATZKOW: So it's really you bring it back for a twofold
purpose.
COMMISSIONER HILLER: But the advisory board can
continue until that hearing, can't it? I mean, it's not going to stop the
advisory board from being formed just because we're asking fore`-,
reconsideration. It doesn't stop the process.
go-
MR. KLATZKOW: If they want to bring it to you tl LL 're the
ones who form the advisory board. ,,
COMMISSIONER NANCE: The basis for a
rporsideration is
contemplating that it's going to be voided. So where are we going
with that?
MR. KLATZKOW: Exactly.
COMMISSIONER HILLER: But not necessarily.
CHAIRMAN HENNING it's a ni i to reconsider, rehear the
motion defined what we're going 'torehea(and basically it's a legal
argument. You're going tort a written legal opinion on this.
MR. KLATZKOW: 'ou: ?vill get a -- my understanding from the
discussions, I will provide yob an expanded legal consideration, and
the County Manager will be providing you with the public purpose.
CHAIRMAN HFNNING: Well, we already did the public
purpose thrash the ordinance in the whereas. And it says: Funding
for the seawall'and other waterway improvements is to benefit the
proper owners in such area. That's a finding, the whereas part.
MR KLATZKOW: I'm just -- this is the discussion,
Commissioner.
CHAIRMAN HENNING: I know. I know it's -- there's a lot of
argument up here by the Board of Commissioners, so I think if staff
wants to participate in that, that's fine.
But anyways, I know it's a public petition, we can't take an action
on a public petition, all we can do is give direction.
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Commissioner Fiala, and then I want to speak.
COMMISSIONER FIALA: Okay, I have two things: The first
thing is as we're addressing this, again we all agree it's interpretation.
So are we just going to target La Peninsula and let everybody,else out
of this, or is this going to affect all the others'?
Like for instance when Vanderbilt Beach came in and they .
wanted to establish one so that they could bury their lines.and we all
voted on that And we felt that they would be allowed to ciShat.
Now each of these things that come forward, des this mean
we're never going to accept one or only from La Pen4I think that that
ought to be -- you know, because if we're just targeting one
community, I think that that's illegal.
But anyway, the second thing is Tony Pires,vould you come up
for just a moment'?
CHAIRMAN HENNING: No;pi bl 1speakers under a public
petition. That's the rules anduwe,,alwa j le by those. Mr. Pires can
Y Y
definitely, you know, send correspondence to the commissioners.
This is going to be reheard if motion passes. So that would be the
time that the public in general can speak on the item.
Okay, I want to address some things.
Commissioner Fiala, you stated about these other --
COMMISSIONER FIALA: I was also --
CHAIRMAIIENNING: Yeah, I said I was going to speak
after you.
Forest Lake MSTU, their roadways, anybody can drive on their
roadways.
Pelican Bay, we have an ownership within the Clam Bay system,
including stormwater. And again, the general public can enjoy driving
down Pelican Bay Boulevard.
Radio Road east was formed as an MSTU, taxing the people in
the area to make improvements on county property, okay.
And Pine Ridge is not a gated community. The people can go
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down there. There's been many improvements, including street
repaving, configuration and drainage for that road.
And again, the public purpose was stated in the ordinance of
benefiting the residents in La Peninsula.
And in fact, back in that meeting the County Attorney stated this
is the first that this has ever happened, not only in the countyt in
the State of Florida. So it is setting precedence, all right? ' ° -*my
And the precedence, the other precedence is what ha ens with --
S�F'.
in our -- one of our ordinances it says about nuisance a- e ent and
seawalls. What are we going to do for all these - , citizens that
county staff has gone out there due to public com a t and said your
seawall has not been -- it's in disrepair, yofneed to -ix it Are we
going to create a taxing mechanism to fix all"use seawalls? Okay,
that's one consideration.
Besides the fact that we have so many homeowners associations
in Collier County and what a w- = a! ng to the ones that have
collected assessments and doh a
fight thing by fixing their roofs,
fixing their drainage, fixing their sidewalks.
Are we going to say don't
do that anymore, you can.petitiori us, as long as the majority of your
residents (sic), that we cad provide that funding mechanism? I mean,
"we
it's a real slippery slope i go down here. Besides the fact this legal
challenge.
And quite frankly, we create this, we get a loan or bond, we
deposit the funds, the Board approves the contract to replace this
seawall. Is the Clerk of the Court going to pay the contractor to do
that? That will delay what is the assumption, assumption, that this
seawall needs to be replaced, contrary to some of the residents within
La Peninsula because it was a residence (sic) who called in for an a
anonymous complaint that the HOA said the seawall needs to be
replaced.
And again, our own engineer says it only needs to be repaired.
So it's more than a global issue about legal issues. It's an issue is how
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much we want to increase our debt that we committed to lowering our
debt. That is another issue you need to really consider. And with that,
I'll turn it over to --
COMMISSIONER FIALA: Could you tell me how that affects
our debt? I don't understand that. I mean, being that we don't have to
hold any money up or give them any money, how does it affe ,our
debt? .
CHAIRMAN HENNING: Okay, there's a misconception that
this is their money. It's not And in fact it says the MSBU is
controlled under the governing body of the Board of Commissioners.
This money will be a part of our budgeting process. If we borrow
money it is the county's debt. It would be rec zed throughout.
If it was just a matter of loaning them moneyand let them fix it,
we wouldn't have to involve the Clerl ve wouldn'tlhave to -- the
Chairman wouldn't have to si n, or . ce Chair in this case, if it
goes through, wouldn't have to sigl t V?he an or the bond. It's the
public's money. %_,
So it's recognized and-it will - you can ask Mark Isackson if it's
going to be part of the county debt.
COMMISSIONER FIALA: I think we're not allowed to hear
from people, you said
CHAIRMAN HENNING: County staff has responded to public
petitions in � past. But you can ask the budget director in the future
or you can askFhim, he's standing right up there. It's yours privilege.
COMMISSIONER FIALA: Go ahead.
MTV. ISACKSON: Commissioners, Mark Isackson, your
Director of Corporate Finance.
Every -- we have debt issued for Forest Lakes, we have debt
issued for Radio Road, we have CRA debt. It's all part of our
portfolio. The only thing that's not part of our portfolio is what we call
is conduit debt. That's debt issued through one of the Health Facilities
Authority or the Industrial Development Authority, things of those
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natures.
The -- what I get concerned about is simply the repayment
source. What's their source of repayment. And in the bond
documents or in the loan documents is the county a back stop.to the
debt.
And those are key issues when you start looking at these little,
nuances that are out there within these MSTUs.
Now, every one of the MSTUs that we have, or MSTs the debt
is secured either by referendum or not either throu: I ;e taxing
authority or through the proceeds of the CRA, and thounty is not a
back stop to that debt. Period.
So those -- that's the nuances, is it p w ui ortfolio? The
answer is yeah, it is, but -- ,_
CHAIRMAN HENNING: We have to.approve that every year?
MR. ISACKSON: Every ye in your budget process you
approve not only the operatin funks W thin the MSTUs, but if there's
debt service associated with it the debt service funds.
COMMISSIONER FIALA ould I just ask you, does that mean
we're responsible for t debt?
MR. ISACKSON n
.,� Vh� you say responsible, we're talking
about what's the specificfYdge and is the county a back stop to that
debt.
COMMI.SSfl NI R FIALA: Tell me what back stop is.
MR. ISACKSON: That means if they default, we step in and pay
for it. The answer is no, we don't step in and pay for it. And that's
specific in the bond covenants. We make sure that you make those
decisions every time you form those MSTUs or MSBUs.
CHAIRMAN HENNING: Commissioner Coyle. Who was next
after Commissioner Coyle?
COMMISSIONER HILLER: I think then Commissioner Nance
and then me.
COMMISSIONER COYLE: So it's not county debt.
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January 14, 2014
MR. ISACKSON: Commissioner, it's part of our debt portfolio.
We report on it as part of our debt portfolio, we're asked about it in
terms of our debt portfolio from Moody's and the investor services.
So it is part of our debt portfolio.
COMMISSIONER COYLE: Just like the CRA purchased the
land in the mini triangle, right?
MR. ISACKSON: Yeah.
COMMISSIONER COYLE: They got bond and abank loan.
MR. ISACKSON: That was a bank loan. -
COMMISSIONER COYLE: And there was recourse to
county or other taxpayers outside of that CRA. ;
MR. ISACKSON: It's very specific 110e loan document, right,
as to what you're talking about. .`
COMMISSIONER COYLE: It's very t ecific in the loan
document here also. r
MR. ISACKSON: That's right, *
COMMISSIONER COYLE: Okay, I'll get back to the point.
We were discussing we would get this issue resolved,
reconsideration or something Vie.
It's my belie artd the County Attorney can comment on this, that
if we have created an-Illegal ordinance, we have to act on it to resolve
it, no, matter what the reconsideration policy says.
So in my opinion, rather than confusing a lot of issues here, we
should take the first step of addressing the factual issues. Is it really a
debt for other taxpayers or is it a debt only for La Peninsula?
Weanswer those questions and any other questions that would
determine the legality of the ordinance. And if we come to the
conclusion that the ordinance is illegal, then we can schedule the
hearing on the ordinance itself and to withdraw it. And I think we will
have pursued the proper legal process in both meetings.
CHAIRMAN HENNING: Well, the problem with that is in our
ordinance you have up to two meetings to reconsider an item. The
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County Attorney has opined the proper way to do that. That's what the
motion is. So unless the motion maker changes it, we're going to
move to Mr. Nance.
COMMISSIONER COYLE: Well, wait, you've just said
something that isn't true. We have an obligation to reverse an jega1
ordinance at any time we find out it is illegal. You cannot imposbe. .a.,.
two meeting limit on doing that. ,,
COMMISSIONER NANCE: On illegality.
COMMISSIONER COYLE: That's right. . e
So the rehearing, reconsideration process is smy not relevant if
we have done something illegal. It is incumbent,upon us to resolve
that illegality as quickly as we can And if it faflls j tside of the two
meeting specifications included in our reconsider. lon ordinance, then
we have to act anyway. w
CHAIRMAN HENNING: It on ) omes illegal when a judge
finds that it's illegal. :.
COMMISSIONER COYE:' r if v ydecide it's illegal.
CHAIRMAN HENNG: Well, yeah, and we will through the
reconsideration process. . -4,,,,, 4
Commissioner j ance9 ''.
COMMISSIO R NANCE: I think the more important thing
here, and the only reason I'm interested in this particular issue and that
I voted to allow they to come forth with a proposal, is I think there's
great value in the government providing an administrative mechanism
to allow citizens to self-finance projects that have tremendous cost.
I think t e government should be very happy when citizens come
forward and say I will pay for something. Because if citizens don't
agree to-pay for things, oftentimes it does fall to the government in the
end. So I don't want to find a bunch of reasons back to the
constitution unless there is a clear illegality to disallow what I think is
a very good mechanism and one that quite likely in the years to come
we're going to find has great utility in areas where there are
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infrastructure issues of great cost that do indeed benefit private groups
of citizens more than the public in general. I think our waterfront is a
tremendous example of that. I think we can see that across the nation
and the world.
So when people come up and say we want to pay for something,
I don't want to go out of my way if it is indeed legal for us to do 1*
to gin up some reason to deny them the opportunity to pay, r
something themselves. T .
So, you know, I will support the reconsideration. 1 't really
care what the mechanism is You know, we're g ,'to have to judge
on its legality. Let's just move ahead and determ _ it s legal. Then
we're going to have to decide as a Board i e think - as a valid
public purpose or not and go forward. Andes' . don't, they don't have
an opportunity.
So I don't see any big cataclysic risk where life's going to end
as we know it either way. :
COMMISSIONER HILL o to be clear, my motion will be
for a reconsideration of what ke tproved and to ask the County
Attorney to come backo,us wi -- I think it needs to be more than an
expanded legal consideia' ion. I think it really should be a legal
opinion. If we have to golb outside counsel to get that, we probably
should. And to..4sk even though it does state in the ordinance that we
approved that the public purpose is the reconstruction of the seawall,
for the benefit of the citizens of La Peninsula I still would like to see
that validate by county staff as in fact -- you know, as really defining
what is the primary public purpose of this project. The primary
public, public purpose of this project.
CHAIRMAN HENNING: We can always change the ordinance.
COMMISSIONER HILLER: Right.
CHAIRMAN HENNING: Instead of, you know, saying it's the
benefit of the community, you can say it's a benefit to all.
COMMISSIONER HILLER: And --
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2/11/2014 10.B.
January 14, 2014
CHAIRMAN HENNING: And maybe we can provide public
access to that for fishing --
COMMISSIONER HILLER: Well, let the County Manager
come back and tell us what is -- based on the facts as they exist, what
is the primary public purpose, not the primary private purpose but the
primary public purpose of doing this u
And listening to the discussion, which I think was very mil, I
would like to add one thing to the County Attorney antat is, you
know, one thing that we do whenever we issue public debts we have
a bond validation or essentially a debt validation ring with the
courts. And it would be -- it would be informative o; he Board if we
could find out how that process could be applied herebefore any debt
would be issued through the county.
MR. KLATZKOW: I've had thatiscussion with outside counsel
previously and it will be part of my executive summary.
COMMISSIONER HILLER: I'm go-my-
orry?
MR. KLATZKOW: It will be part of-my executive summary.
COMMISSIONER HLLER: Fantastic. That's really great.
So I've made my moon And if I could have a second?
CHAIRMAN'HENNING: Yeah, you already have a second by
Commissioner Nark '`
COMMISSIONER HILLER: Okay, thank you.
CHAI RMAN HENNING: Okay, let's -- since this is
reconsideration, it's going to come back, why don't we hold any other
questions or comments 'til later. Is that okay?
COMMISSIONER FIALA: Just a fast one, though.
I would suggest to the La Pen people, if this seawall is providing
silt into the pass, you might want to investigate that as you go forward,
because that is definitely a public purpose. Thank you.
CHAIRMAN HENNING: All in --
MR. OCHS: Mr. Chairman, Pm sorry, I don't want to the belabor
this, but just procedurally for the public's edification, and I'd ask the
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January 14, 2014
County Attorney perhaps to weigh in here, but my understanding of
your reconsideration ordinance relating to non land use and zoning
matters is that it's a two-step process.
So if there's an expectation that the Board will make a decision at
the next meeting, I'm not sure that your ordinance allows for tiiat.
Jeff, I don't know --
m
MR. KLATZKOW: You would have to advertise archange in-the
ordinance anyway, so the discussion could center on whet ii rpr not
we want this change in the ordinance, which is in esce should we
reconsider.
CHAIRMAN HENNING: What would e change to the
ordinance?
MR. KLATZKOW: If you want to rescind ` it needs an
ordinance. g'iL
CHAIRMAN HENNING: You'sa.i uit has to be a change
anyways within the ordinance." � ' "W
MR. KLATZKOW: I'mxYif I saki that I misspoke.
What I'm saying, if it's t hoard's desire to rescind or to amend
the ordinance, I have tovertise it. So this is going to be a two-step
process, if the Board wis =,e4to go forward.
MR. OCHS: Becau `typically the first step is just a decision on
whether or not you want to reconsider. And then if you do, we come
back at a subsequent Board meeting with the actual --
CHAIRMAN HENNING: Yeah, put that on the consent, if the
majority of the.Board wants to reconsider this
'''MR. OCHS: Well, I think I'm hearing the County Attorney say
you care have more discussion in this case. But we'll --
Mk. KLATZKOW: We'll work this out.
MR. OCHS: Okay.
COMMISSIONER HILLER: Well, can I make a suggestion?
Because otherwise this is going to drag on. If you could draft that
letter for me this morning, let's amend the agenda to add a vote on the
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2/11/2014 10.B.
January 14, 2014
reconsideration at this meeting so it can be brought forward in the time
frame that we suggested and get it done.
CHAIRMAN HENNING: That isn't how our ordinances --
MR. KLATZKOW: You wanted to bring this back the first
meeting in February. That means we can do the reconsideration at
your next meeting on consent and then have it brought back Own you
want it brought back.
COMMISSIONER HILLER: Okay, that's fine tocz 'hat works
just as well That's fine.
CHAIRMAN HENNING: No further discu i n, all in favor of
the motion, signify by saying aye
COMMISSIONER FIALA: Aye. 'F,;x .N
CHAIRMAN HENNING: Aye. At;
COMMISSIONER HILLER: Aye.
COMMISSIONER NANCE: ye.
CHAIRMAN HENNING: Any`opposed?
(No response.)
COMMISSIONER COY{,44Aye.
CHAIRMAN HEWING: 'Motion carries 4-1, Commissioner
Coyle dissenting. ' 1,,
We have a time certln at 10:00.
Item #11A
RECO11MENDATION TO ISSUE BIG CORKSCREW ISLAND
FIRE AND RESCUE DISTRICT A CERTIFICATE OF PUBLIC
CONVENIENCE AND NECESSITY FOR ADVANCED LIFE
SUPPORT NON-TRANSPORT SERVICES FOR ONE YEAR AND
AUTHORIZE THE CHAIR TO EXECUTE THE PERMIT AND
CERTIFICATE - MOTION TO APPROVE — FAILED; MOTION
FOR THE COUNTY ATTORNEY, COUNTY MANAGER AND
THE FIRE DISTRICTS TO BRING BACK AN ANALYSIS OF
Page 45
Packet Page-206-
21111201410.B.
,, Office of the County Manager
Leo E. Ochs, Jr.
SUN'S 3299 Tamiami Trail East,Suite 202•Naples Florida 34112-5746•(239)252-8383•FAX:(239)252-4010
January 2,2014
Mr.Jared Grifoni
141 Leland Way
Marco Island FL 34145
Re: Public Petition request from Jared Grifoni representing the Libertarian Party of Collier County,
requesting that the Board of County Commissioners rescind Ordinance 2013-70 which
established the La Peninsula Seawall Municipal Service Benefit Unit(MSBU)and rescind
Resolution 2013-292 which established a special assessment for funding the seawall
improvements. Both Ordinance 2013-70 and Resolution 2013-292 were adopted by the Board
of County Commissions on December 10,2013.
Dear Mr.Grifoni,
Please be advised that you are scheduled to appear before the Collier County Board of Commissioners at
the meeting of January 14,2014, regarding the above referenced subject.
Your petition to the Board of County Commissioners will be limited to ten minutes. Please be advised
that the Board will take no action on your petition at this meeting. However,your petition may be
placed on a future agenda for consideration at the Board's discretion. If the subject matter is currently
under litigation or is an on-going Code Enforcement case,the Board will hear the item but will not
discuss the item after it has been presented.Therefore,your petition to the Board should be to advise
them of your concern and the need for action by the Board at a future meeting.
The meeting will begin at 9:00 a.m. in the Board's Chambers on the Third Floor of the W. Harmon Turner
Building(Building"F")of the government complex. Please arrange to be present at this meeting and to
respond to inquiries by Board members.
If you require any further information or assistance, please do not hesitate to contact this office.
Sind/4'
d
Mike Sheffield
Communications and Customer Relations Manager
MJS:m jb
cc: Jeffrey Klatzkow,County Attorney
Steve Carnell, Public Services Administrator
Mark lsackson,Corporate Financial and Management Services Director
Packet Page-207-
2/11/2014 10.B.
BrockMaryJo
From: SheffieldMichael
Sent: Thursday, January 02, 2014 11:16 AM
To: BrockMaryJo
Cc: OchsLeo
Subject: FW: Petition to rescind Ordinance 2013-70
Attachments: 2013-12-30 Submitted Petition.pdf
Hi Mary-3o,
Please place this public petition on the agenda for the 1/14 BCC meeting:
Public petition request from Jared Grifoni representing the Libertarian Party of Collier
County, requesting that the Board of County Commissioners rescind Ordinance 2013-70 which
established the La Peninsula Seawall Municipal Service Benefit Unit (MSBU) and rescind
Resolution 2013-292 which established a special assessment for funding the seawall
improvements. Both Ordinance 2013-70 and Resolution 2013-292 were adopted by the Board of
County Commissioners on December 10, 2013.
Please prepare a letter to be sent to the petitioner and Cc Jeff K, Mark I, and Steve C.
Thanks,
Mike
From: OchsLeo
Sent: Thursday, January 02, 2014 8:54 AM
To: SheffieldMichael
Cc: Klatzkow3eff; BrockMary3o
Subject: FW: Petition to rescind Ordinance 2013-70
Mike,
FYA please
Leo E. Ochs, Jr.
Collier County Manager
239.252.8383
Original Message
From: HenningTom
Sent: Wednesday, January 01, 2014 6:48 PM
To: OchsLeo
Subject: FW: Petition to rescind Ordinance 2013-70
please place on the 14th agenda
From: tsl?.ve4 . { maiiLco,r [tslave484@gmail.com] On Behalf Of Elsa Martinez
[secretary @collierlp.com]
Sent: Tuesday, December 31, 2013 2:36 PM
To: SheffieldMichael
Cc: HenningTom; Jared Grifoni; vicechai ' olli.erlp.com; a_ctivismfa co]ljeerap com; Libertarian
Party of Collier County
1
Packet Page-208-
2/11/2014 10.B.
Subject: Petition to rescind Ordinance 2013-70
Good Afternoon,
Attached, please find our request for public petition on the January 14th BCC meeting.
If you have any questions, or need additional information, don't hesitate to email me at
s Cretary(2'coi .ier1 ?.com<mai lto_e retar"y(aic .lie `cofl>.
Thank you and have a great day.
-Elsa Martinez
Libertarian Party of Collier County
Individual Liberty
Limited Government
Economic Freedom
PO Box# 2452
Marco Island, FL 34146
Phone# (239) 777-0730
Web: htt.p://www_cofliF_,r'ip_c:oni
Facebook: I tt "//ww,i.facebook..corm collier p
"When the government's boot is on your throat, whether it is a left boot or a right boot is
of no consequence"
-Gary Lloyd
Under Florida Law, e-mail addresses are public records. If you do not want your e-mail
address released in response to a public records request, do not send electronic mail to this
entity. Instead, contact this office by telephone or in writing.
Under Florida Law, e-mail addresses are public records. If you do not want your e-mail
address released in response to a public records request, do not send electronic mail to this
entity. Instead, contact this office by telephone or in writing.
Under Florida Law, e-mail addresses are public records. If you do not want your e-mail
address released in response to a public records request, do not send electronic mail to this
entity. Instead, contact this office by telephone or in writing.
2
Packet Page-209-
2/11/21014 10.B.
Request to Speak under Public Petition
Please print
Name: Jared Grifoni
Address: 141 Leland Way
Marco Island, FL 34145
Phone: 239-682-6682
Date of the Board Meeting you wish to speak: January 14, 2013
Must circle yes or no:
Is this subject matter under litigation at this time? Yes /(Iso,
Is this subject matter an ongoing Code Enforcement case? Yes Oslo]
Note: If either answer is "yes", the Board will hear the item but will have no
discussion regarding the item after it is presented.
Please explain in detail the reason you are requesting to speak (attach additional
page if necessary):
see attached
Please explain in detail the action you are asking the Commission to take (attach
additional page if necessary):
see attached
H:\DATA\FORMS\Public Petition Request Form-2013.doc
Packet Page-210-
2/11/2014 10.B.
Please explain in detail the reason you are requesting to speak:
We, as the Libertarian Party of Collier County, speaking on behalf of
the citizens of Collier County, wish to petition against Ordinance
No. 2013-70 creating the La Peninsula Seawall Municipal Service
Benefit Unit, and against the associated funding.
There is no Constitutional authority for such funding (which is
essentially a guaranteed loan from the Collier County taxpayers for
this project) .
La Peninsula is a private community, and this seawall and associated
waterway improvements have no determinate public benefit or county
use. Article VII, section 10 of the Florida Constitution prohibits
the state and its subdivisions from using their taxing power or
pledging public credit to aid any private persons or entities.
The very language of the ordinance in Section 3 indicates that the
waterway improvements only benefit "the property owners within the
MSBU", making it unconstitutional and an overreach of government. The
Collier County government is not a bank with which to loan monies for
private projects. This ordinance sets a terrible precedent for the
entire state of Florida and must not be allowed to move forward.
Please explain in detail the action you are asking the Commission to take:
We request that the Board of County Commissioners rescind the
ordinance creating the MSBU and the resolution to fund it via special
assessment, and that the Board vote not to fund the project, because
it is unconstitutional and not the proper role of county government.
Unless this project has public use and benefits, the expenditure of
public funds is invalid.
Packet Page-211-