Agenda 09/25/2012 Item #12A 9/25/2012 Item 12.A.
EXECUTIVE SUMMARY
This item to be heard immediately preceding the Closed Attorney-Client Session scheduled for
12:00 noon. That the Board consider a Settlement Agreement in the lawsuits entitled,
Francis D. Hussey, Jr., et aL v. Collier County, et aL, Second District Court of Appeal Case
No. 2D11-1224; and Sean Hussey, et aL v. Collier County, et aL, Second District Court of
Appeal Case No. 2D11-1223., and authorize the Chairman to execute the Settlement
Agreement.
OBJECTIVE: To settle lawsuits entitled Francis D. Hussey, Jr., et al. v. Collier County, et al.,
Case No. 2D11-1224, and Sean Hussey, et al. v. Collier County, et al., Case No. 2D11-1223,
currently pending the Second District Court of Appeal.
CONSIDERATIONS: In 2008, Francis D. Hussey, Jr., Mary P. Hussey, and Winchester Lakes
Corporation, a Florida corporation, filed an Inverse Condemnation suit seeking monetary
damages from Collier County, the Honorable Charlie Crist, the Governor of the State of Florida,
and the Florida Department of Community Affairs. The Plaintiffs contended that the designation
of certain real property owned by them pursuant to a 2002 Growth Management Plan
Amendment had the effect of precluding mining activities, thereby resulting in a substantial
diminution in value of the real estate. The Complaint alleges damage claims, as of June 2002, in
the amount of $67,300,000.00, and as of July 2007, in the amount of $91,500,000.00. The
Plaintiffs also presented a claim for "Inverse Condemnation based on a regulatory taking of
Plaintiffs' property," in an unspecified amount. The Florida Wildlife Federation and the Collier
County Audubon Society were granted leave to intervene in the suit by the Court on April 29,
2009, and they thereafter served the Husseys with a Notice of Intent to Sue over Violations of the
Endangered Species Act of 1973, Land Clearing of Primary Panther Habitat, RCW Habitat and
Wood Stork Foraging Habitat. In 2009, Sean Hussey, the son of Francis and Mary Hussey, and
others filed a second lawsuit in this matter. In February 2011, Judge Hayes signed a Final Order
granting the County's motion to dismiss the second amended complaint with prejudice, and by
separate Order dismissed the claims against the State. After a great deal of procedural
maneuvering, this Order dismissing the County is presently on appeal with the Second District
Court of Appeals, where it has been held in abeyance pending the parties attempt to reach a
settlement. There was no appeal on the Order dismissing the State.
There will be a staff presentation and ability for public comment during this item.
At the conclusion of this item, the Board will go into a Closed Attorney-Client Session to discuss
whether to accept the settlement offer.
FISCAL IMPACT: No cost to the County. The County would receive certain future benefits
resulting from this agreement, whose value is speculative at this time.
GROWTH MANAGEMENT IMPACT: The Settlement Agreement contemplates changes
made to the Future Land Use Map.
LEGAL CONSIDERATIONS: This item is legally sufficient for Board action, and requires 4
votes for approval. -JAK
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9/25/2012 Item 12.A.
RECOMMENDATION: That the Board of County Commissioners consider sign the attached
Settlement Agreement relating to lawsuits entitled Francis D. Hussey, Jr., et al. v. Collier %>
County, et al., Case No. 2D11-1224, and Sean Hussey, et al. v. Collier County, et al., Case No.
2D11-1223, currently pending the Second District Court of Appeal.
PREPARED BY: Jeffrey A. Klatzkow, County Attorney
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9/25/2012 Item 12.A.
COLLIER COUNTY
Board of County Commissioners
Item Number: 12.A.
Item Summary: 11:30 a.m. Time Certain.This item to be heard immediately preceding
the Closed Attorney-Client Session.That the Board consider a Settlement Agreement in the
lawsuits entitled, Francis D. Hussey,Jr., et al. v. Collier County, et al., Second District Court of
Appeal Case No. 2D11-1224; and Sean Hussey, et al. v. Collier County, et al., Second District
Court of Appeal Case No. 2D11-1223., and authorize the Chairman to execute the Settlement
Agreement.
Meeting Date: 9/25/2012
Prepared By
Name:NeetVirginia
Title: Legal Assistant/Paralegal,County Attorney
9/19/2012 11:46:03 AM
Submitted by
Title: County Attorney
Name: KlatzkowJeff
9/19/2012 11:46:04 AM
Approved By
Name: KlatzkowJeff
Title: County Attorney
Date: 9/19/2012 11:57:42 AM
Name: GreenwaldRandy
Title: Management/Budget Analyst,Office of Management&B
Date: 9/19/2012 1:13:55 PM
Name: KlatzkowJeff
Title: County Attorney
Date: 9/19/2012 2:21:49 PM
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9/25/2012 Item 12.A.
Name: IsacksonMark Al Ilk
Title: Director-Corp Financial and Mgmt Svs,CMO
Date: 9/19/2012 2:59:11 PM
Auk
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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CASE NO.: 08-6933-CA
FRANCIS D. HUSSEY, JR. and MARY P.
HUSSEY, husband and wife; and
WINCHESTER LAKES CORPORATION, a
Florida corporation,
Plaintiffs,
vs.
COLLIER COUNTY, a political subdivision
of the State of Florida; THE HONORABLE
CHARLIE CRIST, Governor of the State of
Florida; and the FLORIDA DEPARTMENT
OF COMMUNITY AFFAIRS,
Defendants.
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT (hereinafter referred to as the
"Agreement") is made and entered into this of September, 2012, by and between
Francis D. Hussey, Jr., Mary Pat Hussey, Sean Hussey, Trustee, Mike Boran, Co-Trustee
of the SR 846 Land Trust, Ronald L. Brown, Co-Trustee of the SR 846 Land Trust,
Joseph Bonness, President of Winchester Lakes, Inc., and HHH Investments, L.P. (the
"Owner") and Collier County, Florida, a political subdivision of the State Florida(the
"County").
WHEREAS, the Plaintiffs, FRANCIS D. HUSSEY, JR., and MARY P.
HUSSEY, husband and wife, (the "Husseys") are the fee owners of certain real property
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within Collier County within an area of Collier County which is commonly referred to as
"North Belle Meade;"and
WHEREAS, at the time of acquisition, the Hussey Property was designated
Agricultural on the zoning maps of Collier County. This zoning designation allowed
agricultural use, rock mining, and low density residential housing development; and
WHEREAS, the majority of land in the vicinity of the Hussey Property contains a
tremendous quantity of DOT grade limestone rock. Rock mines bordered the Hussey
Property to the east at the time of the Husseys' acquisition; and
WHEREAS, the Plaintiff, WINCHESTER LAKES CORPORATION ("Winchester
Lakes") holds a leasehold interest in the Subject Property and holds contractual rights to
subsurface minerals including the underground rock and a contractual right to share in the
proceeds of this action; and
WHEREAS, on or about April 30, 2003, a Conditional Use Mining Application
(CU-2003-AR-4093) was filed with the County for approval of rock mining use on behalf
of the Husseys and Winchester Lakes, which was filed in a good faith expectation of a
final use designation allowing rock mining on significant portions of the Hussey
Property; and
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WHEREAS, the County failed to process the Conditional Use Mining Application
(CU-2003-AR-4093), notwithstanding that the Application was filed prior to the effective
date of any potential Growth Management Plan amendment which would have prohibited
potential rock mining; and
WHEREAS, as part of obligations imposed by the Department of Community
Affair in the June 22, 1999 Final Order (AC 99-002), the County also adopted certain
Growth Management Plan Amendments on May 9, 2000 mandating that an
environmental assessment for consideration of greater environmental protection was to be
made of the agricultural/rural areas of Collier County by June 22, 2002; and
WHEREAS, after concluding its environmental assessment, the County adopted
Ordinance No. 2002-32 on June 22, 2002. Within the North Belle Meade Area, the
County also created sub-designations for certain lands. "Neutral Lands" retained
substantially the same rights as before the passage of Ordinance No. 2002-32.
"Receiving Lands" were designated to continue rock mining, residential uses, and density
bonuses could be given under certain circumstances. "Sending Lands," were designated
so that that rock mining would no longer be allowed. Any residential development was
reduced to one unit per forty acres rather than one unit per five acres. In addition, the
changes eliminated other rights, such as gated communities, planned unit developments
with density clustering, and accessory uses such as golf and tennis facilities; and
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WHEREAS, due to an administrative challenge to the Florida Department of Community
Affairs, as set forth above, Ordinance No. 2002-32 did not become effective until July 22,
2003; and
WHEREAS, the vast majority of lands designated as "Sending" within the North
Belle Meade by the Rural Fringe Amendments are 5 and 10 acre parcels suitable only for
use as a single-family homesites. The reasonably anticipated uses of these smaller single
family homesites remained essentially unchanged by their designation as "Sending;"and
WHEREAS, the Rural Fringe Amendments within the North Belle Meade, as a
practical matter, affected only the Husseys because theirs was the only parcel in North
Belle Meade which was capable of viable rock mining and which was substantially
affected by the amendments; and
WHEREAS, Ordinance No. 2002-32 also had a provision to afford a hearing to
property owners who were affected by a "Sending Land" designation. This provision
allowed property owners — who were contiguous to Neutral Lands or Receiving Lands —
to bring forth evidence to support a final designation of their properties to "Neutral" or
"Receiving." According to notice sent by the County, the "Sending" designation was
simply "preliminary" at the initial passage of Ordinance No. 2002-32, giving property
owners an opportunity to be heard; and
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WHEREAS, in particular, the Husseys filed a Petition for a final designation on
the Subject Property of "Receiving Lands" by way of a Petition for Amendment to the
GMP as provided in Ordinance No. 2002-32. This was ultimately consolidated with and
included with a separate staff- sponsored Petition to Amend the GMP to make final
designations; and
WHEREAS, Winchester Lakes and the Husseys proffered environmental,
hydrological and geological data, to support that all or a significant portion of the Hussey
Property should be redesignated "Neutral Land" or "Receiving Land" so as to achieve
their mining and development goals; and
WHEREAS, both the Husseys and the staff-sponsored Petition for GMP
Amendment were denied on July 25, 2007.
WHEREAS, thereafter, on August 7, 2007, the County sent notice that the
pending Conditional Use Mining Application (CU-2003-AR-4093), which the County
had held in abeyance four years,was deemed closed; and
WHEREAS, the Husseys and Winchester Lakes have filed a claim against Collier
County under Florida Statutes § 70.001 (the "Bert Harris Act"); and
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WHEREAS, the Husseys and Winchester Lakes have also filed claim challenging
the constitutionality of the Rural Fringe Amendments pursuant to Article X Sec. 6(a) of
the Florida Constitution; and
WHEREAS, the parties wish the settle this dispute on the terms and conditions set forth
below.
NOW, THEREFORE, in consideration of the foregoing premises and the
following mutual promises (the receipt and sufficiency of such consideration being
acknowledged by all parties),
1. Recitals. The foregoing recitals are true and correct and are
incorporated by reference.
2. Denial of Liability. No party is admitting wrongdoing, fault, or liability
of any nature by entering into this Agreement.
3. Hussey Lands.
A. Collier County will change the Future Land Use Map designation
of the 526.12 acres listed on Exhibit A from Rural Fringe Mixed Use District(RFMUD)
Sending Lands to Receiving Lands. Said Lands may be used for the purposes of quarry
(earth mining), asphalt, and concrete batch-making plants, and the recycling of concrete
and construction debris (facilities for the collection, transfer, processing and reduction of
Amik
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solid waste) without the necessity of a conditional use permit. Collier County will
support and not oppose any related applications to appropriate State and Federal
Agencies.
B. The Owner's property may be developed with uses, densities and
intensities as allowed on other Receiving Lands within the North Belle Meade, and shall
be subject to the same requirements and limitations as other Receiving Lands within the
North Belle Meade, except that conditional use approval shall not be required for earth
mining and asphalt and concrete batch-making plants. No other commercial or industrial
uses will be allowed. The Owner waives the right to a Rural Village.
C. The Owner shall entitle the Receiving Lands portion of the
property as a Planned Unit Development(s) (PUD) and be subject to the public hearing
and approval process set forth in the Collier County Land Development Code for a PUD
rezone, notwithstanding that the residential density would be established by right using
the Sending and Receiving criteria.
D. Collier County will change the Future Land Use Map designation
of the approximately 440 acres listed on Exhibit B to apply special regulations to those
Sending Lands. Those special regulations will permit earth mining on those lands without
the necessity of a conditional use permit, although an excavation permit will still be
required. Excavation on the Exhibit B lands will not exceed 115 acres. TDRs from any
excavated Exhibit B lands will be forfeited.
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E. Those special regulations will also prohibit residences within those
lands, but allow for essential services allowed within agricultural zoned districts as
identified in sections 2.01.03 A., D., and E. of the Land Development Code and all other
Sending Lands uses.
F. The Owner agrees to coordinate the development of its mining
lakes and development lakes consistent with the Big Cypress Basin, County Stormwater
and the Water Management District long range plans to ensure that they fulfill regional
water supply, flooding and rehydration objectives.
i. The Owner will allow pass through water through its lakes
so long as it does not reduce the aesthetic appearance or water quality.
G. Within 180 days following the court approval of the Settlement
Agreement, the Owner shall dedicate to the County the one hundred and eighty(180) feet
of right-of-way for the future Wilson Boulevard Extension (Blackburn Road) along the
Owner's southern property line as depicted in Exhibit A. This will be at no cost to the
County and the Owner will receive no impact fee credits for this dedication. The right of
way will be transferred fee simple, subject to easements and reservations of record.
Owner will be permitted access onto the future Wilson Boulevard Extension for
residential and agricultural uses, with at least two tie-in locations that permit left turns in.
Subject to the conditions of the commercial excavation permit, Owner will be permitted
access onto the future Wilson Boulevard Extension for the hauling of excavated
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materials. County staff will have no objection to at least two tie-in locations that permit
left turns in.
H. For all other planned roadways and planned corridors currently
shown on the Metropolitan Planning Organization's (MPO) 2035 Long Range
Transportation Plan(LRTP)needs plan that are within or adjacent to Owner's property,
the Owner shall commit to the following:
i. The Owner shall reserve within its property, the right of way necessary to
construct these roadways.
a. The Owner agrees to donate right of way within its
property for these roadways within 180 days of the County including
these roadways in the 5 year Capital Improvement Plan(CIP/CIE)
b. The transfer will be at no cost to the County and the Owner
will receive no impact fee credits.
c. The right of way will be transferred fee simple, subject to
easements and reservations of record.
ii. The Owner shall reserve within its property, the necessary water quality
and water quantity treatment and attenuation for the planned roadways and
corridors adjacent to their property.
a. The Owner agrees to have the treatment and attenuation
available within 3 years of the County including these roadways in
the 5 year Capital Improvement Plan(CIP/CIE), so long as
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excavation has been permitted by all necessary governmental
authorities.
b. The County may extend the treatment and attenuation an
additional 1,000 linear feet from the Owner's boundaries. The
County will notify the Owner of the addition upon the completion of
30% design plans.
c. The right to use these lakes for water management will be
at no cost to the County and the Owner will receive no impact fee
credits. However, any other water management costs, such as
engineering fees, pipes, pumps, weirs and the like will be at the
expense of the County and at no cost to the Owner.
iii. The Owner shall provide fill at no cost to the County, for those
portions of all roadways and corridors within or that abut its property.
a. The Owner agrees to have the fill available within 3 years
of the County including these roadways in the 5 year Capital
Improvement Plan(CIP/CIE), so long as excavation has been
permitted by all necessary governmental authorities.
b. The Owner will be responsible to stockpile the fill and the
County will be responsible to pick up and transport the fill at its sole
cost and expense
c. Excavation and the operation of the excavation facility for
the stockpiling of fill and other materials may commence prior to the
completion of the future Wilson Boulevard Extension.
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d. It is understood that a third party will be providing the road
base for the future Wilson Boulevard Extension, and the fill for the
future Wilson Boulevard Extension will only be that which is needed
to complete that roadway, as currently designed,beyond what is has
been pledged or is provided by third parties.
iv. The Owner shall provide fill at a"base cost" to the County for
those portions of roadways and corridors that are not adjacent to its property
but are currently shown on the MPO's 2035 LRTP needs network and that the
Owner is required, as a condition of its commercial excavation permit to use -
whether now or in the future - as haul roads for access to the County's arterial
network.
a. The portions of these roads subject to the contribution of
fill at base cost requirement will be limited geographically to Collier
Boulevard on the west, Golden Gate Boulevard on the north,
Everglades Boulevard on the east and I-75 on the south. The roads
themselves do not include any portion of the aforementioned Collier
Boulevard, Golden Gate Boulevard, Everglades Boulevard, I-75, or
any portion of Wilson/Blackburn that lies to the east of the
North/South alignment of the future Wilson Boulevard Extension.
b. The Owner agrees to have the fill available within 3 years
of the County including these roadways in the 5 year Capital
Improvement Plan(CIP/CIE), so long as excavation has been
permitted by all necessary governmental authorities.
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c. The"base cost" shall be defined as the Owner's cost to
excavate and stockpile the fill. This will not include permitting and
mitigation.
i. The County reserves the right to pay the"base cost"with
either impact fee credits or cash, so long as Owner has the
current ability to utilize the impact fees credits.
d. The County will be responsible to pick up and transport
the fill at its sole cost and expense.
I. The Owner's entitlements to density shall include the area
calculated prior to any right of way donations.
J. Collier County will have option to purchase rock and fill at from
these excavations at 10% less than market rate.
K. For lands within the Hussey Property that were cleared of native
vegetation since the date of the adoption of the RFA, the requirement of CCME Policy
6.1.5 relating to the native vegetation requirements within Policies 6.1.1 and 6.1.2 shall
be deemed satisfied through the designation of the 945 acres within the SR 846 Land
Trust as Sending land, as well as the Native Vegetation Restoration and Management
Plan attached as Exhibit C to this Agreement.
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L. The Owner shall provide to the County two (2) well site easements
within its property and adjacent to the roadways shown on the MPO's 2035 LRTP needs
plan.
i. The easements shall be provided at no cost to the County.
4. SR 846 SUBDISTRICT
A. Legal Description. All of Section 35 & 36, Township 47 South,
Range 27 East, and all of Sections 1 and 2 in Township 48 South, Range 27 East (less
road right-of-way for County Road 846 Immokalee Road), Collier County, Florida.
B. The foregoing described property consists of an approximate
combination of Rural Fringe Mixed Use District (RFMUD) Receiving Lands (1,631.5
acres) and Sending Lands (945 acres) as depicted on the attached map. The property may
be developed in accord with the criteria for this specific subdistrict or criteria for the
RFMUD generally, and as may be amended, or a combination thereof. All existing
native vegetation in the Sending Lands will be preserved, except as provided below. The
native vegetation retention standards for the Receiving Lands, including all requirements
in Section 3.05.07 of the Collier County Land Development Code, are deemed to have
been met by preservation of the existing native vegetation in the Sending Lands portion
of this subdistrict.
C. Any native vegetation to be cleared in the Sending Lands (e.g.
roads, utilities, passive recreational facilities, and/or other essential services), must be
replaced by restoration of agricultural land in the Sending Lands portion of this
subdistrict at a 1:1 ratio." The restoration will occur per the attached "Native Vegetation
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Restoration and Management Plan" (Exhibit C, SR 846 Subdistrict), as may be amended,
or an alternative plan requested by the property owner and approved by Collier County.
The attached Native Vegetation Restoration and Management Plan is deemed approved
as a TDR restoration management plan if applicant severs TDR's from the Sending lands.
D. Lands eligible for the Environmental Restoration and Maintenance
Bonus TDR Credit will include preserved native vegetation and restored land. If
agricultural lands in the Sending Lands are proposed for restoration, the restoration plan
will include the design of short hydroperiod wetlands that could be utilized by wood
storks for foraging habitat. The applicant will seek input from staff at the National
Audubon Society's Corkscrew Swamp Sanctuary for the design of the short hydroperiod
wetlands and that input will be incorporated, provided the design input is compatible with
ASINW
surrounding land use, is economically viable, and does not conflict with permit
requirements of state, federal, or local agencies.
E. A Rural Village of up to 1,631.5 acres may be developed on the
Receiving Lands. If the Receiving Lands are developed as a Rural Village, the Sending
Lands portion of the subdistrict shall be deemed to satisfy the requirement for a
greenbelt. Through use of Planned Unit Development (PUD) zoning and utilization of
TDR Credits, a density of up to three dwelling (3) units per gross acre of Receiving
Lands may be approved on the Receiving Lands. Sending Lands may be included in the
PUD but shall not be counted for residential density. The Receiving Lands may be
developed as a Mixed Use PUD (MPUD) which allows office and retail commercial uses,
Assisted Living Facilities/Continuing Care Retirement Communities or similar use at an
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FAR of up to .60, and hotel, motel or other transient lodging facility with customary
accessory uses at a density of up to 26 units per acre.
F. If the property is developed as a Residential Planned Unit
Development (RPUD) or an MPUD, a minimum density of one dwelling unit per acre is
required.
G. If developed as an MPUD commercial uses shall not exceed 10%
of the total acreage of any MPUD. If a Rural Village is proposed, the maximum
percentages for neighborhood centers, village centers, and research and technology parks
shall be as permitted per the LDC.
H. The early entry TDR bonus density credit shall be extended for
three (3) years for the Sending Lands after the effective date of this subdistrict or such
other date as may be extended generally for other RFMUD Sending Lands, whichever is
the later date.
I. Should Collier County adopt provisions that enable the transfer
and use of RLSA Stewardship Credits in the RFMUD, such provisions may be used
within the SR 846 Subdistrict.
J. The boundary of the SR 846 Sending Lands as depicted on the
attached SR 846 Subdistrict Map is approximate. The final boundary will be delineated
based on field surveys at the time of application for TDR approval to reflect native
vegetation, wetland and other site conditions at that time, however boundary adjustments
shall ensure that the total acreage of SR 846 Sending lands shall be no less than 945
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acres. Sending and Receiving area boundary adjustments shall not require a GMP Map itow
amendment.
K. A Conditional Use for earthmining and extraction was previously
approved for this property (Resolution No. 2012-15), a portion of which has been
subsequently changed from Receiving to Sending Lands. Earthmining and extraction
remain as permitted Conditional Uses on the Receiving Lands, but are no longer
permitted on these Sending Lands. No amendment of the Conditional Use approval is
necessary to enforce this prohibition on earthmining and extraction on the Sending
Lands.
L. For all planned roadways and planned corridors shown on the
Metropolitan Planning Organization's (MPO) 2035 Long Range Transportation Plan
(LRTP) needs plan as of the date of approval of this Subdistrict and which are adjacent to
Subdistrict property boundaries, the Owner shall commit to the following:
i. To reserve within its property, the right of way necessary to
construct these roadways.
a. To convey the right of way within 180 days of the
date that the County adds these roadways to the 5 year Capital Improvement Plan
(CIP/CIE).
b. The conveyance will be at no cost to the County and
the Owner will not receive transportation impact fee credits.
c. The right of way will be conveyed in fee simple
subject to easements and reservations of record.
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ii. The Owner shall reserve within its property, the necessary
water quality and water quantity treatment and attenuation for the above-
referenced roadways and corridors adjacent to the property.
iii. The County may extend the treatment and attenuation an
additional 1000 linear feet from the property boundaries. The County will notify
the Owner of the addition upon the completion of 30% design plans.
iv. The County's right to the use of these lands for water
management will not result in a cost to the Owner, nor will the Owner receive
impact fee credits.
M. The Owner's entitlements to density shall include the area
calculated prior to any right of way conveyance.
N. For residential density in excess of one (1) dwelling unit per acre
(the maximum density allowed by right via use of transfer of development rights credits),
the Owner shall entitle the property as a Planned Unit Development(s) (PUD) and be
subject to the public hearing and approval process set forth in the Collier County Land
Development Code for a PUD rezone, notwithstanding any residential density that would
be established by right using the Sending and Receiving criteria.
5. The terms and condition may only be modified by mutual consent. The
Owner and the County acknowledge that the terms of this settlement contain
proposed land use entitlements and infrastructure improvements that are
contemplated in 25-year planning horizon. The Owner and the County agree to work
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cooperatively to modify these terms as needed to reflect actual conditions as the
Owner and the County execute their development and infrastructure plans
6. Upon approval by the court and the expiration of the time within which for
any third parties to appeal, or the upholding of this settlement with finality, if so
appealed, this action will be dismissed with prejudice.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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9/25/2012 Item 12.A.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their appropriate officials, as of the date first above written.
Attest: BOARD OF COUNTY COMMISSIONERS
DWIGHT E. BROCK, Clerk COLLIER COUNTY, FLORIDA
By: By:
, Deputy Clerk Fred W. Coyle, Chairman
Mary Pat Hussey Francis D. Hussey, Jr.
Sean Hussey, Trustee Michael J. Boran, Co-Trustee
SR 846 Land Trust
Ronald L. Brown, Co-Trustee Winchester Lakes, Inc.
SR 846 Land Trust Joseph Bonness, President
HHH Investments, LP
By: HHH Investments Corp. I., GP
Francis D. Hussey, Jr., President
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this day of
September, 2012, by Mary Pat Hussey, who is personally known to me or who has
produced as identification.
Notary Public
Print Name:
My Commission Expires:
Aomok
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9/25/2012 Item 12.A.
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this day of
September, 2012, by Francis D. Hussey, Jr., who is personally known to me or who
has produced as identification.
Notary Public
Print Name:
My Commission Expires:
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this day of
September, 2012, by Sean Hussey, as Trustee, who is personally known to me or
who has produced as identification.
Notary Public
Print Name:
My Commission Expires:
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of
September, 2012,by Michael J. Boran, as Co-Trustee of the SR 846 Land Trust, on
behalf of such trust, who is personally known to me or who has produced
as identification.
Notary Public
Print Name:
My Commission Expires:
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9/25/2012 Item 12.A.
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of
September, 2012, by Ronald L. Brown, as Co-Trustee of the SR 846 Land Trust, on
behalf of such trust, who is personally known to me or who has produced
as identification.
Notary Public
Print Name:
My Commission Expires:
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this day of
September, 2012, by Joseph Bonness, as President of Winchester Lakes, Inc., a Florida
corporation, on behalf of such corporation, who is personally known to me or who
has produced as identification.
Notary Public
Print Name:
My Commission Expires:
STATE OF FLORIDA
COUNTY OF COLLIER
The foregoing instrument was acknowledged before me this day of
September, 2012, by Francis D. Hussey, Jr., President of HHH Investments Corp.I, a
Delaware corporation, authorized to do business in the state of Florida, which is the
General Partner of HHH Investments L.P., a Delaware limited partnership authorized to
do business in the state of Florida, on behalf of such limited partnership, who is
personally known to me or who has produced
as identification.
Notary Public
Print Name:
My Commission Expires:
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9/25/2012 Item 12.A.
Approved as to form
and legal sufficiency:
Jeffrey A. Klatzkow
Collier County Attorney
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9/25/2012 Item 12.A.
EXHIBIT A mow.
1. Within Section 29, Township 49, Range 27; parcels:
00328560002
00331320006
00330480002
00328640003
00329240004
00330840008
2. The Northern 9/32nds of Section 32, Township 49 South, Range 27 East;
3. Within Section 33, Township 49 South, Range 27 East; parcels:
00344240005
00343760007
00345280006
00343080004
00342840009
00344040001
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9/25/2012 Item 12.A.
EXHIBIT B
The Southern 23/32nds of Section 32, Township 49 South, Range 27 East, less and
except any lands that were previously taken for highway right of way.
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9/25/2012 Item 12.A.
EXHIBIT C
SR 846 SUB-DISTRICT
NATIVE VEGETATION RESTORATION AND MANAGEMENT PLAN
Revised September 2012
INTRODUCTION
The following outlines the native vegetation restoration and management plan for the SR
846 Sub-District (Sub-District). The Sub-District is located in Sections 35 and 36,
Township 47 South, Range 27 East; and Sections 1 and 2, Township 48 South, Range 27
East, Collier County.
This management plan will provide direct benefit to listed wildlife species with the
potential to utilize habitats within the Sub-District including gopher tortoise (Gopherus
polyphemus), Eastern indigo snake (Drymarchon corais couperi), American alligator
(Alligator mississippiensis), little blue heron (Egretta caerulea), snowy egret (Egretta
thula), tri-colored heron (Egretta tricolor), white ibis (Eudocimus albus), burrowing owl
(Athene cunicularia floridana), bald eagle (Haliaeetus leucocephalus), wood stork
(Mycteria americana), Florida panther (Puma concolor coryii), and Florida black bear
(Ursus americanus floridanus).
The preserve management plan will provide direct protection of habitats that may contain
Collier County Less Rare plant species including butterfly orchid (Encyclia tampensis),
inflated wild pine (Tillandsia balbisiana), stiff-leaved wild pine (T fasciculata), twisted
air plant(T.flexuosa), and giant wild pine(T utriculata).
EXOTIC REMOVAL AND MAINTENANCE
Exotic vegetation will be eradicated from all native preserves. Exotic vegetation includes
Category I exotics as defined by the Florida Exotic Pest Plant Council list of invasive
species at the time of preserve management plan approval. Nuisance and non-native
ornamental vegetation shall be eradicated from all native preserves. Enhancement
activities in the preserves will include hand removal of exotic and nuisance vegetation.
Exotic removal work within the preserve areas will begin in conjunction with initial site
clearing activities and be completed in accordance with the South Florida Water
Management District (SFWMD) Environmental Resource Permit Work Schedule. All
exotics within the first 75 feet of the outer edge of every preserve shall be physically
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9/25/2012 Item 12.A.
removed or the trees cut down to grade, cut debris removed, and the stumps treated.
Exotic vegetation within the interior of the preserve will be treated in place if physical
removal will cause more damage to the native vegetation within the preserve.
Exotic vegetation shall be removed by hand within the preserve area. The exotic
vegetation will be cut down to grade and the stump treated with a U.S. Environmental
Protection Agency approved herbicide with visual trace dye included. The hand removal
of exotic and nuisance vegetation will include one or more of the following methods: 1)
cut exotics within 12 inches of ground elevation, hand remove cut vegetation, and treat
remaining stump with approved herbicide; 2) girdle standing melaleuca (Melaleuca
quinquenervia) and Australian pine (Casuarina equisetifolia) with diameter at breast
(DBH)ht greater than four inches and apply approved herbicide to cambium; 3)
g ( ) g
foliar application of approved herbicide to melaleuca saplings, Brazilian pepper (Schinus
terebinthifolius), Australian pine, and downy rose myrtle (Rhodomyrtus tomentosus); and
4) foliar application of approved herbicide or hand pulling of exotic seedlings and cattails
(Typha sp.).
In areas where the density of melaleuca trees exceeds 50 percent, cuttings will either be
removed from the site or stacked in piles at approximately 100 foot intervals. If left on
the site, smaller cuttings will be stacked butt end to the ground into a nearly vertical
position (i.e., teepee method). Larger cuttings will be cut and stacked side by side into an
area approximately six feet per side. Cuttings will be stacked perpendicular to the
previous layer,up to a height of approximately four feet(i.e., log cabin method).
LONG-TERM MAINTENANCE AND MONITORING
The wetland and upland preserve areas shall remain in a natural state in perpetuity and
not be disturbed by dredging, filling, land clearing, or construction related activities.
Exceptions for disturbance are allowed for management activities described in this
management plan and passive recreational uses and pathways as may be approved by the
County. The preserve area shall be kept free of refuse and debris. Maintenance will be
conducted in perpetuity to ensure that the preserves are free of exotic vegetation and
nuisance vegetation. Inspections of the preserve area shall occur annually by the
Preserve Manager or more frequently if necessary. The annual inspections shall
document with photographs the coverage and types of vegetation to be cleared for fuel
management or safety concerns, prior to clearing. The annual reports will include results
of the inspections and recommendations of the Preserve Manager, including specific
techniques to prevent reinvasion by prohibited exotic vegetation. Changes in the Preserve
Manager hired to manage the preserve shall be documented in the annual reports. The
property owner shall retain the five most recent years of monitoring reports and make
them available to Collier County upon request.
Additional monitoring will be implemented for preserves that receive treated stormwater.
The additional monitoring program will include protocols to conduct vegetation surveys
and monitoring for ground and surface water levels. Monitoring for stormwater in the
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preserves will include baseline followed by five annual monitoring reports. Reports Amok
submitted to the SFWMD may be used to satisfy this reporting requirement as long as
they conform to the requirements of Land Development Code (LDC) 3.05.07.H.l.g.viii.
Compatible vegetation must be planted to replace upland vegetation that may be lost as a
direct result of the introduction of stormwater into the preserve.
FIRE MANAGEMENT AND VEGETATION REMOVAL
Prescribed burning is an available management technique that may be permitted, as
applicable, within the upland and wetland preservation areas. Fire management
prescriptions will be prepared by a certified prescribed burn manager for the purpose of
improving forest health, maintaining species diversity, and minimizing the risk of
uncontrolled wildfire. Fire management prescriptions must be appropriate for the habitat
type and surrounding land uses. The feasibility of conducting prescribed burns will take
into consideration the ability to obtain local and state authorizations, the ability to create
adequate firebreaks at the burn site, and impacts to listed wildlife species.
Prescribed burning may only be conducted by a certified prescribed burn manager and in
accordance with the applicable rules and regulations of the Division of Forestry. The use
of prescribed burning may necessitate the creation of adequate firebreaks resulting in the
removal of native vegetation within the preserve areas. The removal of native vegetation
in the preserve areas for the purpose of creating fire breaks will be coordinated with the
Division of Forestry
Vegetation removal permits from the County shall not be required to implement clearing
or thinning vegetation for fuel management or fire lines in accordance with normal
forestry practices. Vegetation removal permits shall not be required to remove dead,
dying, or leaning trees which pose a safety concern unless they contain a nest or cavity of
a listed animal species or bald eagle. Where listed species may be affected by vegetation
clearing practices, surveys for listed species must be conducted no more than six months
prior to clearing.
PRESERVE SIGNAGE
Signage shall be placed around preserve areas to identify and protect the preserve during
and after construction. The signage will note the posted area is a protected area. The
signs shall be no closer than ten feet from residential property lines, be limited to a
maximum height of four feet and a maximum size of two square feet, and otherwise
comply with Section 3.05.04 of the LDC. Maximum sign spacing shall be 300 feet.
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9/25/2012 Item 12.A.
RESTORATION
During development activities, it may be necessary to perform certain construction
activities (i.e., roads and other uses) within the Sending Land native vegetation. Any
native vegetation cleared in the Sending Lands must be replaced by restoration of
agricultural land in the Sending Lands portion of this Sub-District at a 1:1 ratio.
Restoration plantings will include the tree, shrub, and ground cover plantings listed in
Tables 1 or 2. Tree plantings will include a minimum of three species, shrub plantings
will include a minimum of two species, and ground cover plantings will include a
minimum of three species. Agency permitted restoration requirements for native
vegetation cleared in the Sub-District will be deemed satisfactory replacement and will
supersede the restoration requirements of this section.
Table 1. Wetland Planting List
Minimum Planting
Common Minimum Instruction
Hei g ht
Scientific Name Container (On Center)
Name Size
Freshwater Forested Wetland Plantings
Cypress 15 ft.
Taxodium 6 ft. 3 gal.
ascendens
Dahoon holly Ilex cassine 6 ft. 3 gal. 15 ft.
Pop ash Fraxinus caroliniana 6 ft. 3 gal. 15 ft.
Red maple Acer rubrum 6 ft. 3 gal. 15 ft.
Slash pine Pinus elliottii 6 ft. 3 gal. 15 ft.
Wax myrtle 3 ft. 1 al. 8 ft.
Myrica cerifera g
Gallberry 3 ft. 1 gal.
8 ft.
Ilex glabra g
Buttonbush 8 ft.
Cephalanthus 3 ft. 1 gal.
occidentalis
Cordgrass Spartina bakeri 12 in. 4 in. 3 ft.
Wiregrass Aristida stricta 12 in. 4 in. 3 ft.
Gulfdune Paspalum 12 in. 4 in. 3 ft.
paspalum monostachyum
Fakahatcheegrass Tripsacum dactyloides 12 in. 4 in. 3 ft.
Sawgrass Cladium jamaicense 12 in. 4 in. 3 ft.
Freshwater Marsh Plantings
Maidencane 3 ft.
12 in. 4 in.
Panicum
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9/25/2012 Item 12.A.
hemitomon 406,,
Pickerelweed Pontederia cordata 12 in. 4 in. 3 ft.
Duck potato Sagittaria lancifolia 12 in. 4 in. 3 ft.
Soft-stem Scirpus validus 3 ft.
bulrush 12 in. 4 in.
Spikerush Eleocharis interstincta 12 in. 4 in. 3 ft.
Bacopa Bacopa caroliniana -- Liner --
Table 2. Upland Planting List
Minimum Planting
Common Scientific Name Minimum Container Instruction
Name Height (On Center)
Size
Live oak Quercus virginiana 6 ft. 3 gal. 15 ft.
Slash pine Pinus elliottii 6 ft. 3 gal. 15 ft.
Cabbage palm Sabal palmetto 6 ft. 3 gal. 15 ft.
Myrtle oak Quercus myrtifolia 3 ft. 1 gal. 8 ft.
Chapman's oak Quercus chapmanii 3 ft. 1 gal. 8 ft.
Coco plum Chrysobalanus icaco 3 ft. 1 gal. 8 ft.
Myrsine 8 ft.
Rapanea punctata 3 ft. 1 gal.
.,:rgwp6.
Wax myrtle 8 ft.
Myrica cerifera 3 ft. 1 gal.
Muhly grass 3 ft.
Muhlenbergia 12 in. 4 in.
capillaris
Sand cordgrass Spartina bakeri 12 in. 4 in. 3 ft.
Broomsedge Andropogon virginicus 12 in. 4 in. 3 ft.
Table 2. (Continued)
Minimum Planting
Common
Minimum Container Instruction
Scientific Name
Name ! Height Size (On Center)
Lovegrass Eragrostis spectabilis 12 in. 2 in. 3 ft.
Saw palmetto Serenoa repens 12 in. 4 in. 3 ft.
Wiregrass Aristida stricta 12 in. 4 in. 3 ft.
oak
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9/25/2012 Item 12.A.
SPECIES SPECIFIC MANAGEMENT ACTIONS
Specific management actions for gopher tortoise, Eastern indigo snake, American
alligator, and burrowing owl are as follows:
Gopher Tortoise
The Sub-District will provide for on-site preservation areas that provide suitable gopher
tortoise habitat. Gopher tortoises located in habitats proposed for development will be
relocated to the on-site preservation area in accordance with Florida Fish and Wildlife
Conservation Commission (FWCC) permits. The on-site gopher tortoise preserves will
remain fenced to prevent the relocated gopher tortoises from entering the construction
area and to protect vegetation during the clearing and construction period. The gopher
tortoise preserves will be managed by hand removal of exotic vegetation and controlled
burning.
Gopher Tortoise Relocation and Management
Prior to the relocation of any gopher tortoises, an updated gopher tortoise survey will be
conducted within the limits of construction no more than 90 days prior to excavating the
gopher tortoise burrows. Within the limits of construction, all potentially occupied
gopher tortoise burrows will be excavated. Removal of the vegetation and heavier
overburden material will occur by backhoe. The finer digging around the burrow will be
done by hand. Excavation activities will be supervised by a qualified biologist. Any
gopher tortoises and their commensals found will be relocated to the on-site preserve
area. Following the completion of the relocation activities, County Environmental
Services staff will be notified in writing regarding the number of burrows excavated and
the number of tortoises relocated to each on-site preserve.
To reduce the threat of wildfires and maintain quality gopher tortoise habitat within the
preserve area, prescribed burns may be utilized to remove excess vegetative growth and
nuisance vegetation, such as vines. Burning in the preserves may occur on a one to three
year rotation or as conditions permit. Any controlled burning shall be conducted by a
state certified burn manager and will be at the discretion of the developer or homeowners
association. Roller-chopping and hand clearing are alternative methods for removing
excess vegetation growth and nuisance vegetation. All burning, roller-chopping, or hand
clearing activities shall be reviewed by County Environmental Services staff.
Three years post-relocation, an assessment of the gopher tortoise recipient sites shall be
conducted to evaluate habitat conditions and the status of the gopher tortoise population.
County Environmental Services staff shall be notified if corrective actions are required.
The gopher tortoise recipient site will be inspected as needed every three years to insure
that the preserve is suitable for supporting gopher tortoises in perpetuity.
Eastern Indigo Snake
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During clearing operations, informational posters will be placed in conspicuous locations
at the construction office and construction entrances. The posters will provide
background information on identification, habits, and protection of the Eastern indigo
snake. The posters will state actions to take if an Eastern indigo snake is sighted and the
names and telephone numbers of contact persons.
Informational pamphlets will be made available to individuals in charge of the clearing
operation for distribution to all construction crew. The pamphlets will provide
background information on identification, habits, and protection of the Eastern indigo
snake. The pamphlets will state actions to take if an Eastern indigo snake is sighted, and
the names and telephone numbers of contact persons.
Actions to take if a live or injured Eastern indigo snake is sighted during construction
activity:
1. Cease construction activity.
2. Promptly notify the project's qualified biologist:
Passarella &Associates, Inc.
Phone: (239) 274-0067
3. Allow the snake sufficient time to move away from construction activity or
allow the qualified biologist to promptly relocate the Eastern indigo snake
before resuming construction. Only the qualified biologist is permitted to come
in contact with, or relocate an Eastern indigo snake.
Actions to take if a dead Eastern indigo snake is sighted during construction activity:
1. Promptly notify the project's qualified biologist:
Passarella&Associates, Inc.
Phone: (239) 274-0067
2. Seal the remains in an airtight plastic bag and place on ice.
3. The qualified biologist will contact the following agency personnel for proper
disposal:
Conservation Planning Section Dr. Joe Walsh
U.S. Fish and Wildlife Service Florida Fish and Wildlife Conservation
South Florida Ecological Services Field Office Commission
1339 20`h Street 255 154th Avenue
Vero Beach, Florida 32960 Vero Beach, Florida 32968
Phone: (772) 562-3909 Phone: (772) 778-5094
Amok
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American Alligator
Signs will be posted on the subject property to instruct on-site workers not to feed or
harass the American alligator or disturb nesting sites. The signs will indicate that the
offense is punishable by law. Construction personnel will be instructed that in the event
there is a problem with a persistent nuisance alligator, they will need to contact the
FWCC, as that is the only agency empowered to handle nuisance alligators.
Burrowing Owl
The burrowing owl is a pint-sized bird that lives in open, treeless areas. The burrowing
owl spends most of its time on the ground, where its sandy brown plumage provides
camouflage from potential predators. One of Florida's smallest owls, it averages 9 inches
in height with a wingspan of 21 inches. The burrowing owl lacks the ear tufts of the more
familiar woodland owls. Bright yellow eyes and a white chin accent the face. Unusually
long legs provide additional height for a better view from its typical ground-level perch.
Burrowing owls nest and inhabit underground burrows that they excavate or adopt from
other burrowing animals, such as gopher tortoises. Culverts, PVC pipes, and spaces
underneath sidewalks and roofs also serve as nesting locations for the burrowing owl.
They are mostly monogamous and territorial around their burrows. During the nesting
season, burrows are adorned with various materials such as grasses and palm fronds
before egg-laying. Subsequent to the laying of eggs, the entrance to the burrow is
decorated with highly visible non-natural objects, such as tinfoil and plastics.
The low pasture areas in preserves may be maintained by cattle grazing. If cattle are
removed from the site, the low pasture may be mowed or burned. Mowing will only be
conducted during the non-nesting season (July 10 through February 15). The appropriate
FWCC permit will be obtained before any burrowing owl burrow is taken.
Wood Stork
If agricultural lands in the Sending Lands are proposed for restoration, the restoration
plan will include the design of short hydroperiod wetlands that could be utilized by wood
storks for foraging habitat. The applicant will seek input from staff at the National
Audubon Society's Corkscrew Swamp Sanctuary for the design of the short hydroperiod
wetlands and that input will be incorporated, provided the design input is compatible with
surrounding land use, is economically viable, and does not conflict with permit
requirements of state, federal, or local agencies.
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9/25/2012 Item 12.A.
CONTACTS
The contact information for the preserve manager and the developer are as follows:
Preserve Manager Developer
Andrew Woodruff To Be Determined
Passarella&Associates, Inc.
13620 Metropolis Avenue, Suite 200
Fort Myers, Florida 33912
(239) 274-0067
The preserve manager and developer are responsible for overseeing the implementation
of the preserve management plan.
Asw
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