Agenda 03/11/2014 Item #16K3 Proposed Agenda Changes
Board of County Commissioners Meeting
March 11,2014
Continue Item 16A6 to the March 25, 2014 BCC Meeting: Recommendation to adopt a Resolution
granting a design variance that authorizes a speed limit increase from forty-five miles per hour(45
mph) to fifty miles per hour (50 mph) on Collier Boulevard from Davis Boulevard to US4I. (Staff's
request)
Continue Item 16A7 to the April 8,2014 BCC Meeting: Recommendation to approve the
prioritization of live limerock roads for the purpose of limerock road conversion, from the Road
Maintenance Limerock Road Conversion Program (LRCP), Project 60128, in FY2014.
(Commissioner Nance's request)
Move Item 16K3 to Item 12A: Recommendation that the Board of
County Commissioners rescinds its direction that the County
Attorney work with the Clerk to obtain an Attorney General
Opinion as to the legality of the La Peninsula MSBU Ordinance and
instead directs the following: (1) That the La Peninsula
Condominium Association pays the County in advance for the
estimated costs to be incurred; (2) That these funds be held in Trust
for La Peninsula Condominium Association in a separate fund and
not be considered public moneys; (3) That until there is a judicial
decision on the bond validation proceeding, all expenditures in
connection with this MSBU be made out of these private funds; ( 1)
That if additional moneys are needed, they come from the same
source and be deposited in the same account; and (5) That if, and
only if there is a judicial decision arising out of a bond validation
proceeding which upholds the legality of the ordinance and the
financing, then at that point the moneys previously paid could be
reimbursed to the Condominium Association as part of the
financing. (Commissioner Fiala's request)
Continue Item 171) to the April 8, 2014 13CC Meeting: Recommendation to adopt an
Ordinance to be known as the Natural Gas Franchise Ordinance. (Staffs request)
Time Certain Items:
Item 13A to be heard at 10:0(1 a.m.
Item 11A to be heard at 10:45 a.m.
S/b,2.314 9:39 AM
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3/11/2014 16.K.3.
EXECUTIVE SUMMARY
Recommendation that the Board of County Commissioners rescinds its direction that the
County Attorney work with the Clerk to obtain an Attorney General Opinion as to the
legality of the La Peninsula MSBU Ordinance and instead directs the following: (1) That
the La Peninsula Condominium Association pays the County in advance for the estimated
costs to be incurred; (2) That these funds be held in Trust for La Peninsula Condominium
Association in a separate fund and not be considered public moneys; (3) That until there is
a judicial decision on the bond validation proceeding, all expenditures in connection with
this MSBU be made out of these private funds; (4) That if additional moneys are needed,
they come from. the same source and be deposited in the same account; and (5) That if, and
only if, there is a judicial decision arising out of a bond validation proceeding which
upholds the legality of the ordinance and the financing, then at that point the moneys
previously paid could be reimbursed to the Condominium Association as part of the
financing.
OBJECTIVE: To move the La Peninsula project forward until a judicial determination can be
made on the bond validation proceeding.
CONSIDERATIONS: La Peninsula is a private, gated community located on the Isles of Capri,
across from Marco Island, on the Southwest Gulf Coast of .Florida. On October 8, 2013, upon
Public Petition to the Board, the La Peninsula Condominium Association, Inc. requested that the
Board of County Commissioners adopt an ordinance to establish a municipal services benefit
unit (MSBU) to fund seawall repairs and/or replacements. Preliminary engineering reports
estimated the work in the $4 million range.
On December 10, 2013, the Board adopted a resolution to authorize the use of the
uniform method of collecting non -ad valorem special assessments within the La Peninsula
community and adopted an ordinance to establish the La Peninsula Seawall Municipal Services
Benefit Unit.
On January 2, 2014, by Public Petition, the Collier County Libertarian, Party requested
that the Board rescind both the resolution and the ordinance on the grounds that since La
Peninsula is a private community, the Board's actions in establishing this MSBU was in
violation of Article VII, Section 10 of the Florida Constitution, which -prohibits the state and its
subdivisions from using the taxing power to aid any private persons or entities.
The matter was then brought back for a full public rehearing of the matter. Given the
issues raised by the opposition, the Board decided to resolve the issue of the legality of any
financing in the form- of a Chapter 75 bond validation proceeding. Concerned that the Clerk
would be uncomfortable approving any payments prior to the Court's ruling on a bond validation
proceeding, the Board directed that the County Attorney work with the Clerk to seek an Attorney
General Opinion that this MSBU was lawfully created.
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3/11/2014 16. K.3.
The County Attorney then drafted a proposed question for the Attorney General and
forwarded it to the Clerk for his review. The County Attorney and the Clerk then had an in-
depth discussion, and both parties concluded there were two difficulties with this approach
. The first difficulty is that not only has the Board directed that this matter go to a bond
validation proceeding when financing is secured, the opposition is based on the constitutionality
of the La Peninsula MSBU Ordinance. As set forth by the Attorney General on her official
website, "In order not to intrude upon the constitutional prerogative of the judicial branch,
opinions generally are not rendered on questions pending before the courts or on questions
requiring a determination of the constitutionality of an existing statute or ordinance."
Accordingly, it is doubtful that the Attorney General would rule on this matter at this time.
The second difficulty is that if an opinion is issued, both the Clerk and I expect it to say
that the ordinance is valid provided that the Board makes the appropriate legislative findings.
Since a Court will not be bound by such findings as part of the bond validation proceeding, such
a ruling would not give the Clerk any comfort.
The central issue is whether the County can spend public funds with respect to this
seawall. In order to avoid this issue until a final determination can be made in a bond validation
proceeding, the County Attorney and the Clerk recommend that the Board directs the following:
1. That the La Peninsula Condominium Association pays the County in advance for the
estimated costs to be incurred.
2. That these funds be held in Trust for La Peninsula Condominium Association in a
separate fund and not be considered public moneys.
3. That until there is a judicial decision on the bond validation proceeding, all
expenditures in connection with this MSBU will be made out of these private funds.
4. That if additional moneys are needed, they come from the same source and be
deposited in the same account.
5. That if, and only if, there is .a judicial decision arising out of a bond validation
proceeding which upholds the legality of the ordinance and the financing, then at that point the
moneys previously paid could be reimbursed to the Condominium Association as part of the
financing.
This approach eliminates the issue as to whether the County can spend public funds with
respect to this seawall, as only private funds would be utilized. The County would simply be a
conduit in which the private funds are used for various payments.
There may be a remaining issue with respect to the constitutional question regarding
using the taxing power of the government for a private purpose. This issue will become ripe
when the assessments are collected as part of the tax roll. It is the County Attorney's
recommendation that the bond validation proceeding be completed before this happens. Should
the bond validation be upheld, this issue would then be moot.
FISCAL IWACT: None to the County. All costs will be borne by the Condominium
Association.
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3/11/2014 16.K.3.
^ GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: This item is approved as to both form and legality, and
requires majority vote. —JAK
RECOMMENDATION: That the Board of County Commissioners rescinds its direction that
the County Attorney work with the Clerk to obtain an Attorney General Opinion as to the
legality of the La Peninsula MSBU Ordinance and instead directs the following:
1. That the La Peninsula Condominium Association pays the County in advance for the
estimated costs to be incurred.
2. That these funds be held in Trust for La Peninsula Condominium Association in a
separate fund and not be considered public moneys.
3. That until there is a judicial decision on the bond validation proceeding, all
expenditures in connection with this MSBU be made out of these private funds.
4. That if additional moneys are needed, they come from the same source and be
deposited in the same account.
5. That if, and only if, there is a judicial decision arising out of a bond validation
proceeding which upholds the legality of the ordinance and the financing, then at that point the
moneys previously paid could be reimbursed to the Condominium Association as part of the
financing.
PREPARED BY: Jeffrey A. Klatzkow, County Attorney
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3/11/2014 16.K.3
COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.3.
Item Summary: Recommendation that the Board of County Commissioners rescinds its direction
that the County Attorney work with the Clerk to obtain an Attorney General Opinion as to the legality of
the La Peninsula MSBU Ordinance and instead directs the following: (1) That the La Peninsula
Condominium Association pays the County in advance for the estimated costs to be incurred; (2) That
these funds be held in Trust for La Peninsula Condominium Association in a separate fund and not be
considered public moneys; (3) That until there is a judicial decision on the bond validation proceeding, all
expenditures in connection with this MSBU be made out of these private funds; (4) That if additional
moneys are needed, they come from the same source and be deposited in the same account; and (5) That
if, and only if, there is a judicial decision arising out of a bond validation proceeding which upholds the
legality of the ordinance and the financing, then at that point the moneys previously paid could be
reimbursed to the Condominium Association as part of the financing.
Meeting Date: 3/11/2014
Prepared By
Name: klatzkowjeff
Title: County Attorney
Date: Click here to enter text.
Approved By
Name: klatzkowjeff
Title: County Attorney
Date: 03/03/2014 03:28:41 PM
Name: markisackson
Title: Director -Corp Financial and Mngmt Svs, Office of Management & Budget
Date: 03/04/2014 09:18:20 AM
Name: ochs_l
Title: County Manager, County Managers Office
Date: 03/04/2014 09:43:18 AM
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