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Agenda 01/11/2011 Item #12A Agenda Item No. 12A January 11, 2011 Page 1 of 72 EXECUTIVE SUMMARY That the Board reviews the Non-Binding Arbitration Decision related to the Rural Lands Stewardship Area Overlay and establishes whether the creation or amendment of a Stewardship Receiving Area requires an affirmative vote of three or four members of the Board of County Commissioners. OBJECTIVE: For the Board to establish the number of affirmative votes needed to create or amend a Stewardship Receiving Area. CONSIDERATION: As part of the first step in accommodating The Jackson Laboratory as the anchor of a large biomedical research park, the owner of a portion of property in the Town of Ave Maria Stewardship Receiving Area ("SRA") filed an application to revise the SRA Master Plan. The owner is requesting approval to divide the "Town Center 2" area into "Town Centers 2a and 2b," relocate "Town Center 2b" to Oil Well Road, and relocate an access point on Oil Well Road. During discussions with staff over this application, the issue arose as to whether Board approyal required simple majority or supermajority vote, as the RLSA Oyerlay Ordinance was silent as to the issue. Both Zoning Staff and the County Attorney's Office maintained the position that supermajority support was required, which position had been held by Zoning Staff and the County Attorney's Office for some time. The property owner disagreed. This dispute drew in the large property owners of Eastern Collier County, who brought the issue to the attention of the Board. At the November 9, 2010 meeting, the Board directed that the County and the Eastern Collier County Property Owners engage in non-binding arbitration of whether three or four affirmative votes are required for the Board to create or amend a Stewardship Receiving Area. (A transcript of the Board's discussion and the arbitration agreement is included as back-up to this item.) The arbitration was conducted over a two-day period, with former Florida Supreme Court Justice Kenneth B. Bell presiding. Mr. Bell essentially agreed with the position of the Eastern Collier County Property Owners, issuing an opinion dated December 24, 2010 (a copy of which is attached), which found as follows: "The creation or amendment of an SRA in a DR! in the RLSA requires an affirmative yote of a simple majority of the Board members. No special act or ordinance requires a four-fifths (4/5s) or four member vote. Ord Sec. 2-36(/)-(g). Section 11 of Chapter 67-1246 mandates a four- fifths (4/55) vote when there is "a change in the (County's) zoning ordinance." But, the creation or amendment of an SRA does not change the County's zoning ordinance. Specifically, the designation (or amendment) of an SRA does not supplement or amend the regulations and districts fixed by the LDC. Instead, as with the designation of a Stewardship Sending Area (SSA), the designation of an SRA simply specifies the areas(s) within the RLSA where already permissible land uses may be enjoyed. The LDC does not independently mandate a four-fifths (4/5s) vote to create or amend an SRA." In brief, Mr. Bell agreed with the position of the Eastern Collier County Property Owners, which is that the zoning of the RLSA was completed on June 16, 2003, when the Board adopted Ordinance 2003-27 which amended the Collier County Land Development Code to create the Agenda Item No. 12A January 11,2011 Page 2 of 72 Rural Land Stewardship Area Oyerlay over much of northeast Collier County, and that the creation or designation of Stewardship Receiving Areas do not constitute a zoning change but simply implements rights established by the Overlay. Since it is not a zoning change, simple majority action by the Board is all that is required. Mr. Bell rej ected the position of the County Attorney's Office and Zoning Staff with respect to this matter that: 1. The creation or amendment of an SRA is, in and of itself, a zoning action; and 2. By virtue of both the 1967 Special Act, as amended, and the Collier County Land Development Code, as a matter of law, all zoning actions in Collier County require four affirmative votes of the Board for approval. (The 1967 Special Act, enacted before home rule, requires all changes to Collier County's zoning ordinance to be by 4/5s yote. This local requirement was later migrated into the LDC. Since the 1967 Special Act is an act by the Florida Legislature, only the Florida Legislature can change this requirement.) FISCAL IMPACT: None. LEGAL CONSIDERATIONS: The RLSA Oyerlay was discussed before the Board of County Commissioners at a workshop, during the transmittal hearings of the RLSA Growth Management Plan, during the adoption hearing of the RLSA Growth Management Plan, and during the adoption of the RLSA Land Development Code amendments. At no point in time, either through staff presentations, public conmlent, in the Executive SWllmaries, or by back-up, was the issue raised as to the number of affirmative votes needed to create or amend a Stewardship Receiving Area. Accordingly, there is no legislative history as to the intent of the Board on this issue. The RLSA Overlay Ordinance is itself silent on this issue. If the arbitrator is correct in his yiew that the 1967 Special Act does not control the issue, then the Board is free to interpret its own ordinance without being constrained by the 1967 Special Act, and since the arbitrator's decision is non-binding, the Board is free to establish whether the creation or amendment of a Stewardship Receiving Area requires an affimlative vote of three or four members of the Board of County Commissioners. Either decision the Board chooses to make will be subject to legal challenge. GROWTH MANAGEMENT IMPACT: None. RECOMMENDATION: None. Prepared by: Jeffi'ey A. Klatzkow, County Attorney Agenda Item No. 12A January 11, 2011 Page 3 of 72 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: Meeting Date: 12A This item to be heard at 1 :00 p.m. That the Board reviews the Non-Binding Arbitration Decision related to the Rural Lands Stewardship Area Overlay and establishes whether the creation or amendment of a Stewardship Receiving Area requires an affirmative vote of three or four members of the Board of County Commissioners. 1/11/2011 9:00:00 AM Prepared By Jeff Klatzkow County Attorney Date 1/4/2011 2:30:57 PM Approved By Jeff Klatzkow County Attorney Date 1/4/20113:53 PM Approved By OMS Coordinator Date County Manager's Office Office of Management & Budget 1/4/2011 4:00 PM Approved By t):J;nrh, (':,.oanu,,,lrf . ~..... ''''''J -. --. ...,,""...... ft.JI~n"':l....O.-^rf....'C,I....l,.......+ ^ ....""'1",..+ UIUII....~.....,I....lt..,_....""~~\, """IIU'1>=11. n......... iJGlLC Office of Management & Budget Office of Management & Budget 1/4/2011 4:27 PM Approved By Leo E. Ochs, Jr. County Manager Date County Managers Office County Managers Office 1/4/2011 4:39 PM Agenda Item No. 12A January 11, 2011 Page 4 of 72 IN AND FOR COLLIER COUNTY, FLORIDA (VOLUNTARY NONBINDNIG ARBITRATION) ARBITRATOR'S DECISION (December 24, 2010) ,.-.J <:~ -- '.:' r-,J ; .'-' '. ' '-" Abstract Issue Presented (restated): Does the creation or amendment of a Stewardship Receiving Arcm (SRA) in a Development of Regional Impact in the Rural Land Stewardship Area (RLSA) require an affirmative vote of three (3) or four (4) members of the Collier County's Board of County Commissioners (tithe Board")? Decided: The creation or amendment of an SRA in a DRl in the RLSA requires an affirmative vote of a simple majority of the Board members. No special act or ordinance requires a four- fifths (4/5s) or four member vote. Ord. Sec. 2-36(j)-(g). Sec. 11 of Chapter 67-1246 mandates a four-fifths (4/5s) vote when there is tla change in the (County's) zoning ordinance." But, the creation or amendment of an SRA does not change the County's zoning ordinance. Specifically, the designation (or amendment) of an SRA does not supplement or amend the regulations and districts fixed by the LDC. Instead, as with the designation of a Stewardship Sending Area (SSA), the designation of an SRA simply specifies the area(s) within the RLSA where already permissible land uses may be enjoyed. The LDC does not independently mandate a four-fifths (4/5s) vote to create or amend an SRA. I. The Pith of the Parties' Positions A. Collier County: The creation or amendment of an SRA is "a zoning action." As a zoning action, both the Special Act, Ch. 67-1246, Laws of Florida, as amended (tiThe 1967 Special Act"), and the Collier County Land Development Code ("the LDC") require a four-fifths affirmative vote of the Board. At a minimum, the establishment of an SRA is a supplement to the existing RLSA Zoning Overlay District, as well as the creation of a new zoning district, thus requiring a four-fifths affirmative vote. B. Eastern Collier Property Owners: The designation or amendment of a Stewardship Receiving Area within a previously created RLSA Zoning District is not "a change in a zoning ordinance." It does not change either (a) the zoning ordinance that created the RLSA Zoning District or (b) the regulations and districts fixed by the LDC. Therefore, the .-......., ?c Z-i" --' -;;:.: -<'rf. ~C --I -r' 0_. ::D-r ~rn Agenda Item No. 12A January 11, 2011 Page 5 of 72 super-majority requirement in The 1967 Special Act is inapplicable. The LDC itself does not require a four-fifths (4/5s) vote. With no applicable law or ordinance specifying a super- majority vote, an affirmative vote of three (3) members ofthe Board is required. II. Relevant Findin!:s of Fact and Law By local ordinance, a majority of the Board constitutes a quorum; and, generally, if there is a quorum, an affIrmative vote of a majority of the Board's members present is required for it to act. A four-fifths (4/5s) vote of the full membership of the Board is only necessary when "a general law, special law, ordinance, or as specifIed by resolution adopted by a majority of the full membership of the Board so requires. Collier County Code of Ordinances Sec. 2-36(/)-(g).1 The County relies upon Section 11 of The 1967 Special Act and the LDC as the special law and the ordinance that require four affirmative votes of the Board to create or amend an SRA. These two enactments will be briefly addressed. A. The 1967 SDecial Act and an SRA Desi!:nation The cornerstone of the County's position is that Section 11 of The 1967 Special Act mandates a four-fifths (4/5s) vote when an SRA is designated within the RLSA Zoning Overlay District. As the County writes, this special law "is the controlling legislation on this issue presented. " J Collier County Code of Ordinances Sections 2-36 (f) and (g) provides: (f) Quorum. A majority of the Board shall constitute a quorum. No resolution, legally binding document or motion shall be adopted by the Board without the affirmative vote ofthe majority of all members present. (g) Super-Majority Exception. Whenever provided by general law, special law, ordinance, or as specified by resolution adopted by a majority of the full membership of the Board, and notwithstanding subsection (f), a motion, ordinance, legally binding document or resolution may be required to be adopted by an affirmative vote of four-fifths (4/5) ofthe full membership of the Board. 2 Ag~nda Item No. 12A January 11, 2011 Page 6 of 72 Section 11 of The 1967 Special Act (as amended) provides: "Section 11. Supplementing and amending the zoning ordinance. The governing body may from time to time amend or supplement the regulations and districts fixed by any zoning ordinance adopted pursuant to this act. Proposed changes may be suggested by the governing body, by the planning commission, by the hearing examiner, or by petition of the owners of fifty per cent (50%) or more of the area involved in the proposed change. In the latter case, the petitioner or petitioners may be required to assume the cost of public notice and other costs incidental to the hearings. The planning commission, regardless of the source of the proposal for change, shall hold a public hearing or hearings thereon, with due public notice, and submit its recommendation on the proposed change to the governing body, except that the county planning commission may onlv render recommendations for those proposed changes which pertain to the county and which would change the actual list of permitted, conditional, or prohibited uses within a zoning category, or otherwise would alter or amend provisions of the county's codified land development regulations. The governing body shall hold a public hearing or hearings thereon, and shall act on the recommendation. No chanJ!e in the zoninfl ordinance shall become effective except by an affirmative vote of four fifths (4/5's) of the full membership of the governing body." (Emphasis added). Lmvs of Fla. Ch. 67-1246, 5C 11; Laws of Fla. Ch. 2001-344, 91. The plain, unambiguous language of this special law provides the following: 1. The Board may from time to time supplement or amend "the regulations and districts fixed by a zoning ordinance adopted pursuant to" the Special Act; 2. The Board, the planning commission or, by petition, at least 50% of the owners in the area involved may propose such an amendment or supplementation; 3. The planning commission must hold public hearings on the proposed changes and submit its recommendations to the Board; 4. The only changes the planning commission may recommend to the Board are those which "would change the actual list of permitted, conditional, or prohibited uses within a zoning category, or otherwise would alter or amend provisions of the county's codified land development regulations; 5. The planning commission's recommendations must be presented to the Board ~or action; and, 3 Agenda Item No. 12A January 11, 2011 Page 7 of 72 6. No change in the zoning ordinance is effective without an affirmative four-fifths (4/5's) vote of the full membership of the Board. Section II's four-fifths (4/5Is) affirmative vote mandate is not directed to "zoning actions," as the County argues. Instead, Section 11 speaks to changes in the zoning ordinance itself. Specifically, this section speaks to supplements or additions to lithe regulations and districts fixed by a zoning ordinance." The act refines its intended scope by defining precisely what changes to the zoning ordinance the planning commission can recommend to the Board. The planning commission can only recommend supplementations or amendments to a zoning ordinance that "change the actual list of permitted, conditional, or prohibited uses within a zoning category or otherwise would alter or amend provisions of the county's codified land development regulations." Because Section 11 speaks to specified changes in the zoning ordinance, not "zoning actions,'l the question that must be answered is whether or not an SRA designation (or amendment) within an existing RLSA Zoning Overlay District constitutes such a change in the LDC itself. The question is not whether the SRA designation (or amendment) is a "zoning action." This distinction between a legislative-type action that changes the zoning ordinance itself and "zoning actions" is pivotal to deciding the issue presented. The County does not argue that the SRA designation actually alters or changes the existing LDC (except for the argument related to changes in the official zoning atlas discussed later). It's position is that "the establishment of an SRA, which resulted in the creation of an entire town., is at the very minimum a supplement to the existing RSLA Overlay District, as well as the creation of a new zoning district," thus requiring a four-fifths (4/5s) vote under The 1967 Special Act. Because Section 11 speaks to changes to the LDC itself and not all "zoning actions," the 4 Agenda Item No. 12A January 11, 2011 Page 8 of 72 County's argument fails. Clearly, the designation of an 8RA within the RLSA does not alter or change a regulation or district fixed by the LDC. Instead, the 8RA designation simply implements the "RL8A Program" regulations within the existing RLSA Zoning Overlay District. The LDC's use of the term "designation" when referencing the establishment of an 8RA (or 88A) is instructive to this distinction between changes to the zoning ordinance itself and implementation of the zoning ordinance (both of which are "zoning actions"). To "designate" simply means "to indicate or specify.,,2 In the context of the RLSA Program, the SRA designation is simply the implementation of the RL8A Program by specifying the particular area within the existing RLSA Zoning Overlay District where the exhaustively detailed, permissive land uses within an 8RA are officially sanctioned. Stated otherwise, no regulation or zoning district fixed by the LDC is supplemented or amended when an 8RA is designated. And, no new zoning district is created. Instead, the 8RA designation sanctions (permits) a land use already allowed within the RSLA Zoning Overlay District. To elaborate, the RSLA Zoning Overlay District regulations encompass two types of land uses. As Sec. 4.08.02 (Establishment ofland uses allowed in the RLSA District) provides: "Land uses allowed within the RLSA District are of two types: those allowed in the baseline standards prior to designation of SSAs and SRAs, and those uses provided in SSAs and SRAs after designation." (Emphasis added). As the LDC states, the 8RA (and SSA) is a type of permissible land use already allowed by the LDC within the unique RLSA Zoning Overlay District. The land uses allowed in an SRA (and SSA) simply must be designated by the Board before they can be enjoyed. This executive- or administrative-type decision implements the existing LDC; it does not change the LDC itself. 2 American Heritage Dictionary 386 (2nd College Edition 1976) 5 Agenda Item No. 12A January 11, 2011 Page 9 of 72 To summanze, because the land uses allowed within the existing RLSA District expressly include "the uses provided in . . . SRAs after designation," the Board's designation or amendment of an SRA within a previously created RLSA Zoning District is not a change in the zoning ordinance within the meaning of Section 11 of the 1967 Special Act. The SRA (and SSA) designation does not "supplement or add to the regulations and districts fixed by" the LDC. This designation does not (1) change the actual list of permitted, conditional, or prohibited uses ~ithin the RLSA Zoning District, or (2) otherwise alter or amend proyisions of the county's codified land development regulations. Consequently, the four-fifths (4/5'5) affirmative vote requirement in Section 11 of The 1967 Special Act is inapplicable to an SRA designation that is consistent with the extensive regulations within the RLSA portion of the LDC. B. The LDC The County's secondary argument is that the LDC itself requires an affirmatiye vote of four members of the Board. No express provision of the LDC requires a four-fifths (4/5s) affirmative vote of the Board when it designates an SRA in the RLSA Zoning Overlay District. SSAs are expressly designated by a simple majority vote of the Board. But, the LDC is silent on the number of votes required to designate an SRA. With no express proyision mandating a four-fifths (4/5s) affirmative vote to designate an SRA, the County argues that the mandate to reflect the SR...-\ designation on the Official Zoning Atlas is a zoning change that requires a four-fifths vote. Its reasoning is: 1. LDC Sec. 2.7.2, which deals with zoning amendments, provides that "(t)his zoning code and the official zoning atlas may, from time to time, be amended, supplemented, changed or repealed; 6 Agenda Item No. 12A January 11, 2011 Page 10 of 72 2. According to LDC Sec. 2.7.2.10.1, ". . . all proposed changes or amendments. . . shall not be adopted except by the affirmative vote of four members of the "Board. And, this phrase "all proposed changes or amendments" includes all required changes or amendments to the official zoning atlas; 3. When the SRA designation process was first adopted as Sec. 2.2.27.1 O~ subsection F required that "following the approval of the SRA, the county shall update the official zoning atlas to reflect the designation of the SR.J\"; and, 4. Both the SRA and the SSA designations require an amendment to the official zoning atlas. LDC Sec. 47.08.07.F.3. However, the SSA is expressly achieved by a majority vote while the SRA designation is silent on the number of votes required; therefore, 5. "Since the SRA designation expressly provides for the amendment of the official zoning map~ but (unlike the SSA designation) is silent as to the number of votes, ergo Sec. 2.7.2.10.1 applies and the SRA designation requires the affirmative vote of four members of the Board of County Commissioners." This reasoning is not persuasive. The fact that the official zoning atlas is updated after designation to add "SRAn (or SSA or DRI) and the LDC is silent on the number of votes needed to designate an SRA, does not yield a mandate in the LDC that the 8RA designation itself must be by a four-fifths (4/5s) vote.3 As the Eastern Collier Property Owners note, neither "SRA" nor "DRI" are defined in the LDC as distinct zoning districts or zoning categories. The zoning district for an SRA (SSA and DR!) remains RLSA after designation and, in fact, the notation on 3 Indeed, the atlas denotes numerous items unrelated to LDC zoning districts or categories. It denotes wind and flood zones as established by FEMA, Areas of Critical Concern established by the Florida Legislature, Airport Noise Boundaries, Corridor management areas, etc. 7 Agenda Item No. 12A January 11, 2011 Page 11 of 72 the atlas remains RLSA. The SSA, SRA or DR! designations are simply additional notations to the pre-existing RLSA Zoning Overlay District. Finally, the custom and practice of the County belies its own argument. Ordinances rezoning property state in their titles that the rezoning approval requires an amendment to the atlas map reflecting the change in the zoning category. Yet, the two resolutions approving the one SRA designated to date do not have the terms of art used to approve an amendment to a zoning ordinance or a change to the atlas to reflect a rezone. Instead, these two resolutions related to an SRA designation are based on application of the RLSA zoning criteria without referencing any zoning change or atlas amendment. As with Section 11 of The 1967 Special Act, the designation of an SRA is not a change to a zoning ordinance within the plain language ofLDC Sec. 2.7.2.10.1. c. Additional Findin2s Though the above text-based discussion is sufficient to decide the issue presented, additional findings will be noted to provide relevant context for this decision. On October 22, 2002, the County adopted Ordinance 2002-54. This ordinance amended the County's Growth Management Plan ("RLSA GMP Amendment"). Among other things, the RLSA GMP Amendment modified the Future Land Use Element of the Collier County Growth Management Plan to establish the Rural Lands Stewardship Area Overlay and Goals, Objectives and Policies, and provided for the creation of Stewardship Sending Areas (SSA's) and Stewardship Receiving Areas (SRA's). In the summer of 2003, the Board adopted Ordinance 2003-27 which implemented the RLSA GMP Amendment by amending the Collier County Land Development Code (hereinafter referred to as the "RLSA LDC Amendment"). It was this ordinance that created the "Rural Land 8 Agenda Item No. 12A January 11, 2011 Page 12 of 72 Stewardship Area (RLSA) Zoning Overlay District" (the RLSA Zoning Overlay District). This ordinance was a true change in a zoning ordinance as contemplated by The 1967 Special Ac (as well as LDC Sec. 2.7.2.10.1). So, this ordinance was properly adopted by a four-fifths (4/5s) vote of the Board. And, in order to become effective, this ordinance was filed with the Department of State, as required for all zoning ordinances.4 In the 2004 re- codification of the LDC, the Rural Land Stewardship Area Overlay was moved from Section 2.2.27 of the LDC entitled "Zoning" to Section 4.08.00 of the LDC entitled, "Rural Lands Stewardship Area Zoning Overlay District Standards and Procedures." The RLSA GMP Amendment and the RLSA LDC Amendment regulations established a sophisticated mechanism for the creation and transfer of development rights. Simply put, a land owner in the RLSA can strip off layers of development rights from a defined area within the RLSA, leaving only conservation and agricultural uses through the recordation of a restrictive easement. In exchange, the land owner receives stewardship credits. This area stripped of its development rights is known as a Stewardship Sending Area ("SSA"). The stewardship credits created by the SSA designation may be transferred to other properties in the RLSA. This transfer is accomplished when the Board designates a Stewardship Receiving Area ("SRA"). The SRA designation allows for a higher density and intensity of uses, thereby avoiding urban sprawl and protecting the environment, sensitive lands and endangered wildlife. Both the SSA and the SRA designation processes require public hearings and culminate with the Board's designation. And, as noted earlier, the designation of an SSA is expressly achieved by a simple majority vote of the Board. Through an 4 Art. VIII, S 1 ((i), Fla. Const. is implement by 9125.66, Fla. Stat. (2003), which provides that ordinances or resolutions that "change the actual zoning map designation of a parcel of land" must be filed with the Department of State to become effective. 9 Agenda Item No. 12A January 11, 2011 Page 13 of 72 apparent drafting oversight, the vote required by the Board for designation of an SRA is not stated. Those most intimately involved in crafting the RLSA Program never contemplated that the designation of an SRA would be subject to a super-majority vote. Indeed, their testimony was clear that imposing such a requirement would significantly damage the efficacy of this voluntary program. Additional extra-textual evidence supporting the conclusion that the designation of an SRA is not a "change in a zoning ordinance" requiring a four.fifths (4/5s) vote is how the County itself has applied its LDC in designating the only SRA created to date. As described by the County: In a two.step process, the Board unanimously approyed one SRA known as the Town of Ave Maria SRA by Resolution 2004.89. . . and Resolution 2005-234A) . . . . The SRA encompasses 5,027 acres and was assigned 28,658.4 Stewardship Credits. The SRA Development Document and Master Plan define the location of permitted uses and set forth the design standards for the SRA . . . These documents were approved by the Board when the SRA Resolution was adopted. The base density of one residential dwelling unit per five acres plus the Stewardship Credits allows the Town of Ave Maria SRA to develop approximately 11,000 residential dwelling units, 690,000 square feet of retail/service space, 510,000 square feet of office, 400 hotel rooms, a 6,600 student uniyersity, 450 assisted living units, 148,500 square feet of civic/community facilities, 35,000 square feet of medical facilities, a public school (K-8) and private school (K-12) and recreational facilities and parks. The Eastern Collier Property Owner's shed important additional light on this SRA designation: Furthermore, we know from precedent in Collier County that the designation or amendment of an SRA is not deemed to be a zoning ordinance. We know this because zoning ordinances require not only a super-majority vote but must be filed with the Department of State in order to be effective, and the sole existing SRA in Collier County (the Ave Maria SRA) was designated years ago by two separate resolutions, and neither resolution was filed with the Department of State. Moreover, the two resolutions state that they were "adopted after motion, second, and maiority vote." ... This quoted language is not hidden deep within the text of the subject resolutions. Instead, it appears within inches of (and on the same page as) the Board chairman's signature 10 Agenda Item No. 12A January 11, 2011 Page 14 of 72 line, as well as the County Attorney signature line approving the resolution lias to form and legal sufficiency. 11 In sharp contrast, ordinances approving rezones (which do, in fact, require a 4/5 Board vote for approval), contain the following language: "approved after motion, second, and super-maioritv vote. " Without belaboring the point, this extra-textual eyidence supports the textual-based findings made above. To conclude, Collier County always adopts changes to a zoning ordinance by a super- majority vote of the Board. The Board has never made a change to a zoning ordinance by resolution or a simple majority vote. Consistent with this custom, the county adopted the RSLA Zoning Overlay District (a clear change to a zoning ordinance) by ordinance expressly agreed to by a super-majority of the Board. On the other hand, the Board adopted the Ave Maria SRA by resolution that expressly states it was adopted by a majority of the Board. The RLSA LDC Amendment was filed with the State. The A va Maria SRA was not filed with the State. These respective Board actions are consistent with the text of Section 11 of The 1967 Special Act and the LDC. CONCLUSION Based on the above findings of fact and law, this arbitrator respectfully concludes that the creation or amendment of a Stewardship Receiving Area (SRA) in a Development of Regional Impact in the Rural Land Stewardship Area (RLSA) requires a simple majority vote of the Collier County's Board of County Commissioners. Dated: December 24, 2010 7~~.~ Kenneth B. Bell, Arbitrat~ ( A0777948.DOC 11 Agenda Item No. 12A January 11, 2011 November~,g20icc> 72 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY C01\1MISSIONERS Naples, Florida, November 9, 2010 LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board( s) of such special districts as have been created according to law and having conducted business herein, met on this date at 9:00 a.m., in REGULAR SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Fred Coyle Jim Coletta Donna Fiala Frank Halas Tom Henning ALSO PRESENT: Leo Ochs, County Manager Michael Sheffield, Business Operations Manager Jeffrey A. Klatzkow, County Attorney Ian Mitchell, BCC Executive Manager Crystal Kinzel, Office of the Clerk of Courts Page 1 Agenda Item No. 12A January 11, 2011 November ~~~df(Jf 72 COMMISSIONER HALAS: Is there -- there a problem with this, County Attorney? You're frowning over there, so I want to make sure that we've got -- MR. KLATZKOW: No, I'm not frowning. I'm just trying to -- we've never done this before. I'm just calculating in my head the potential issues. But if I find one, rIllet you know before then. CO~ISSIONER HALAS: Please do. CHAIRMAN COYLE: You better hurry, because we're going to have a vote on this motion. All in favor, please signify by saying aye. COMMISSIONER FIALA: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COYLE: Aye. COMMISSIONER COLETTA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COYLE: Any opposed, by like sign? (No response.) I'THAIRl K AN CO'TT p. ~1___.. T4.'_..J --- ~ v.u-\..l I L.L..I. VKa.Y. 1l:S uUW::. MR. OCHS: Thank you. Item #9B SOLICIT UNDERSTANDING OF COUNTY COMMISSIONER INTENT IN CREATING RURAL LANDS STEWARDSHIP AREA (RLSA) AS AN INCENTIVE BASED PROGRAM TO FRONT LOAD PUBLIC BENEFITS WITH THE EXPECTATION OF FINDING A MAR..KET TO SELL CREDITS RECEIVED IN EXCHANGE FOR STRIPPING DEVELOPMENT RIGHTS FROM THE LAND UPON WHICH PUBLIC BENEFITS ARE CREATED - MOTION FOR THE COUNTY ATTORNEY TO WORK WITH THE ATTORNEY FOR THE PROPERTY OWNERS TO CONTRACT A JUDGE FOR A LEGAL DETERMINATION WITH Page 101 Agenda Item No. 12A January 11, 2011 November ~a~1f(ff 72 , COST SPLIT BETWEEN BOTH PARTIES - APPROVED MR OCHS: Commissioners, that takes us back to Item 9 on your agenda, Board of County Commissioners 9B. It's solicit understanding of the County Commission intent in creating Rural Land Stewardship Area as an incentive-based program to front load public benefits with the expectation of fmding a market to sell credits received in exchange for stripping development rights from land upon which public benefits are created. Commissioner Coletta asked for this item to be placed on the agenda. COMMISSIONER COLETTA: And I thank you for that. What I'd like to do, Leo, with the Chair's permission, is proceed right to the speakers and then make a suggestion how we can handle this. CHAIRMAN COYLE: Okay. It's okay with me. MR. MITCHELL: The first speaker is Nicole Ryan, and she'll be followed by Brad Cornell. CO~v1:r-vllSSIOl"ffiR FIALA: How many speakers do \ve have? CHAIRMAN COYLE: Ian? COMMISSIONER HALAS: Ian? CHAIRMAN COYLE: I think: he's counting. MR. MITCHELL: Fourteen. We have 14 speakers. MS. RYAN: Good afternoon. For the record, Nicole Ryan, here on behalf of the Conservancy of Southwest Florida. I had hoped to hear some of your discussion and get feedback, but I'll just jump right into this. There's been a lot of dialogue on this issue based around Jackson Labs; however, this issue really is, at its core, a procedural question, and that's why the Conservancy is here today, for that long-term procedural implication. The county has a process for rezoning and amending PUDs, which is in place. It requires a supermajority vote to approve, and it's Page 102 Agenda Item No. 12A January ~.1, 2011 November 'rG&Jll3(}>f 72 something that's contained in state statutes. And the importance of this provision really needs to be reiterated. Matters of rezoning can have tremendous and broad-based impacts to a community both for the existing and the future residents. Changing uses of land in most cases, intensification of land uses, is a matter of serious consideration, and as such, Collier County determined that the supermaj ority requirement was important to protect the health, safety, welfare and quality of life of its existing and future residents. .._.. At the time of the RLSA design, discussion occurred about the . need to apply the supermajority or just the majority provision for the Stewardship Sending Areas, and it was determined that a simple majority would work for these SSAs because the landowners were voluntarily reducing the land uses on those properties. But what we're talking about today are the Stewardship Sending Areas, the SRAs, the new towns, villages, and hamlets. There's no policy in the GMP or the LDC that states that SRAs will be allowed to diverge from the COli..T1ty-\vide rezoning approval st~ndards. I certainly attended a lot of the RLSA meetings, and I don't recall, and my colleagues at the Conservancy don't recall, that these SRAs were intended to be exempted from the supermajority requirement. Landowners have a different perspective; however, there's a process in place that provides for this in-depth assessment. It's set out in LDC Sections 1.06.01 and 10.02.02F. It's an official request for interpretation. This is the proper and legal process for individuals, landowners, and organizations to receive a determination on matters such as this. We ask that this matter go to that official interpretation requirement. We believe that this is something that is going to impact many -- tens of thousands of acres of SRAs well into the future, and we believe that staff has done some research on this. I have not seen that. The only thing in the agenda packet was a four-page memo from Page 103 I _I Agenda Item No. 12A January 11, 2011 November~g~61~72 Alan Reynolds. . I'd like to see what staff has put together, put that in the form of the official interpretation, let that background research be out there, vet that, and then bring it back to you for a decision. Thank you. CHAIRMAN COYLE: Want to get two going at a time. MR. MITCHELL: The next speaker will be Nancy Payton. If we could use both podiums, please. Thank you. MR. CORNELL: I'm Brad Cornell, and I'm here on behalf of Collier County Audubon Society and Audubon of Florida. And I wa.~.. a participant in the discussions and planning efforts that resulted in the 2002 adoption of the Rural Land Stewardship Area program, as were all of us here. And I have some very vivid recollections. Some things not so vivid. But this is -- I agree with Nicole, this is a narrow issue, to distinguish it from any of the Jackson Lab discussion. We're talking about a very specific issue about whether or not a supermaj ority or simple majority is required for approval of development, this -- the Qt~nTI'1~r1C'h';'" Q.ondm. g Area'" UL.\.I "" UJ.u.;,.L.L.lP U\.I.I. ~. The main issue is that providing public good through incentivizing private landowners to do something in the public's behalf is what the foundation of this program is all about. We want to incentivize these landowners to do something for our benefit. Already over 50,000 acres of wetlands and habitat have been protected under the Rural Land Steward program, which has generated development credits to be used for sustainable Steward Receiving Area developments in areas that were already zoned for such projects. Ave Maria is the only approved SRA currently. Without the incentives that work, the public does not get the protections of wetland habitat and farms, and that's why I'm here. Conservation -- the two conservation organizations I represent, Audubon entities, we want to see these wetlands and habitat protected. The other half of that deal is, we have to make it an incentivized Page 104 Agenda Item No. 12A January 11, 2011 November ~92e~ (j 72 process to get these SRAs. It's different from PUDs. That's the distinction I'm drawing. And that's how we get these 50,OOO-plus acres protected already. That's why they have been participating. My recollection is that the adoption of the RLSA in 2002 is that we were all afraid that there weren't going to be enough incentives and that this new program may not work. And so I view requiring a supermajority board vote to approve an SRA as a disincentive. Such a requirement would be in conflict with the whole incentive-based foundation of Collier's fIrst-ever Rural Land Stewardship Program,~;p.d I hope that you would agree with that and confirm that intent. ..' . Thank you. CHAIR1\1AN COYLE: Thank you, Brad. MR. MITCHELL: Nancy Payton will be followed by Alan Reynolds. MS. PAYTON: Nancy Payton, Florida Wildlife representative. Could I speak after the formal presentation that brought about this coming before you today? ~,d I think it would be helpfhl for a number of folks if we could proceed that way. CHAIRMAN COYLE: Okay. I don't see any reason why we couldn't switch places. MS. PAYTON: Thank you. It's all set up for him. CHAIR1\1AN COYLE: Commissioner Coletta has sponsored this hearing, so if -- do you have a presentation of some kind to make? COMMISSIONER COLETTA: Alan Reynolds will make the presentation. MR. REYNOLDS: Thank you, Mr. Chairman, members of the commission. Alan Reynolds with WilsonMiller Stantec. And I do appreciate the board's indulgence, perhaps, in giving us a little time to give you a -- an overview of the issue that's before you. I think it will help put the comments that you will hear from public speakers into context. Page 105 Agenda Item No. 12A January 11, 2011 November '9:gioI ff 72 So -- and first -- and I also want to thank you for giving us the time today. Ilmow that this was -- this was a special opportunity to give you a presentation. And what ECPO has done is asked me to go back and give you a brief overview of how this program was put together, what the basis was, and I think it will be helpful, as we go through this, to set the issues in their proper context. And if I may, I'd like to take you back to 1999 and, if you can recall, the very contentious issues that we had in Eastern Collier County. What we had was almost 195,000 acres of privately owned land. It was all zoned agriculture. We ha4..no effective strategy for protecting natural resources, and we had a very difficult relationship between property owners, the COWlty, environmental organizations, and other folks who were very interested in making sure that we -- that we did things right in Eastern Collier County. And we had really three tools at our disposal to get things right. We had -- we had regulatory process, we had litigation, and we had publicly funded acquisition, and those were the tools that we had. And that led to a study that took about two-and-a-half years to complete, the Eastern Collier study. And I want you to look at this map. This was a map that was prepared by the University of Florida, and what they did is they did this statewide; they projected what would happen in the State of Florida by the year 2060 if the current trends for land use and land use conversion were let to go forward. And this is what they came up with for the Eastern Collier rural lands area. This is without the rural lands program in place. And what they projected is by the year 2060, you would have had the potential conversion of the vast maj ority of Eastern Collier County development. That is not a pretty picture, and certainly that was the concern that many people' had about not having a plan for Eastern Collier County. I think it's -- it's good to know that in Eastern Collier County you Page 106 Agenda Item No. 12A January 11, 2011 November ~,g20) 572 have a diversity of ownership. We have small property owners. We have large property owners. There are about 126 that have ten or more acres, so you do have a well-defmed audience, if you will, for participation in your rural lands program, and they range all over the spectrum. And those are the folks that will be impacted positively by this program if it continues to do what it has been doing for the last six to seven years. I'm going to very briefly go through just a couple of slides that deal with how the program was set up. And on each one of these slides you're going to see the language in blue is directlY.Qut of the comprehensive plan, and this is the goals and objectives that the county adopted in 2002 to make this pr~gram work. And I think fITst is that this program was a result of a collaborative effort. This was something that property owners, environmental groups, other stakeholders, citizens, spent an enormous amount of time trying to put together a better plan fot the future of Eastern Collier County. By the end of the process, we had gone from a very contentious and litigious situation to great harmony. We had -- and most of you, I think, were at the [mal hearings. It was a great day in Collier County when we adopted this program and we had all sides saying, we have a program that we believe in, and we think this is going to work. And since that time, I will tell you that this program has won all kinds of awards across the state and even at the national level for an example of how to do something innovative and creative in dealing with some very, very large and difficult issues of balancing private property rights and environmental protection. So you should be very proud of the fact that you have a program that has been recognized across the United States as a potential trend-setting new type of program. So this is the goal, and the whole goal of the program was embodied in this one statement. And I think it's important just to Page 107 Agenda Item No. 12A January 11, 2011 Page 23 of 72 November 9, 2010 highlight a couple things, starting with the very fITst sentence, which is that the goal of this program was to address the long-term needs of the residents of -- and property owners within the study area. So right off the bat we were focused on trying to address a specific group of owners that were in the eastern part of the county. The second is that the hallmark of this program is balance. The idea was, we have to protect natural resources, we want to promote agriculture, and we are going to have development, and how do we get all of those things to work together harmoniously and balance each other? And so you're going to see a lot of language in the RLS that you do not see in any other kind of program that the county has, and it's incentive- based language, things like, converting land to other uses is encouraged, development that uses creative techniques is encouraged. Those are words that you use when you're trying to create an incentive-based program rather than a regulatory program. And I think it's really important to put the whole context of this program in that kind of a framework. Mixed-use development is promoted as an alternative to sprawl. And in the eastern part of Collier COllllty in the RLS, we have a whole different framework where we actually encourage development to occur, not in piecemeal fashion, but in well-planned and coordinated towns and villages, and those are the SRAs that we're going to be talking about today. And to make this whole system work, we have to have some kind of a currency that allows property owners who own natural resources to be compensated for protecting those natural resources, and that -- and a stewardship credit is the compensation, and that's a very fundamental part oftrus program is that we have to create what's -- what amounts to a market-based program to encourage property owners to protect resources and then be able to be compensated for that without the public having to spend the money to do so. Page 108 .,.-~ Agenda Item No. 12A January 11, 2011 November ~g~81 rJ72 So this -- this program is very unique in the State of Florida. There's nothing else like it. It's not -- it's not the traditional planning and zoning kind of a program. It was actually created here in Collier County, and it's, at this point, a one-of-a-kind program. I think what you'll hear from some of the property owners is the issue of equity. And there were a number of steps in the process of creating this program. We created a comprehensive plan overlay, we created a zoning overlay, and now we have been implementing the program. But you need to understand that at the very front end of this process, when the comprehensive plan overlay was put in place, property owners in Eastern Collier County gave up the ability to use the traditional rezoning process to change the density/intensity on their land. That was given up right up front. And instead, they agreed to utilize this incentive-based credit system. So, unlike property owners in any other part of Collier County, right now if you are a property owner and you're going to do anything other than utilize your existing agricultural rights, you use your rights under the zoning, the RLS zoning, and that is your opportunity to do something different with your property. So the credit is really a fundamental part of this issue that's being discussed today. If you are a property owner and you agree to come to the county and give up your development rights on your property and designate your property as a Stewardship Sending Area, you are given credits. And the basis for the value of those credits is that you can sell those credits to somebody else that wants to put a Stewardship Receiving Area in place, or if you have property that is allowed to be a Stewardship Receiving Area, you can exchange them within your own property . So it's a credit transfer from a sending area to a receiving area. And the market value for those credits is solely based on the right for the person on the receiving side to get that designation for Page 109 Agenda Item No. 12A January 11, 2011 November 9~~aj 6f 72 Stewardship Receiving Area, because if they can't, through a predictable and reliable process, the credit has no value. And if the credit has no value, you're not going to find property owners on the . sending side of the equation coming forward and giving up their development rights on the hope that somebody will pay them for something that may not have value. So what we had to create in the rural lands is a different process than the way you approach the rezoning of property, because the rezoning process works to disincentivize changes in the zoning ordinance. If you have property that is zoned, you have the right to use it under its current zoning, but if you want to change the zoning, you have to go through a very exhaustive process and meet a whole series of criteria, and it's -- and there's a disincentive, frankly, to changing the zoning on the property that you have. So that's -- and I'll get to in a minute how. we overcame that challenge. The other thing I want to mention is that I think we -- we sometimes get the TDR program confused with the RLS program. There are two different programs in EastemCollier County. The RLS program applies specifically to the 195,000 acres that we're talking about. You have the rural fringe that has a TDR program. Two separate programs. You CalIDot use a TDR in the steward area, you cannot use a stewardship credit in the TDR area, and they were designed to be -- to work in entirely separate ways. So sometimes folks kind of get these confused and say, well, this is just a TDR. It's not. It's a different kind of a program, and you cannot have any exchange between those two progran1S. So what has happened since we put this program in place? I think that's -- that's pretty instructive. And one of our objectives in putting our plan together -- and Brad mentioned it -- is if we're really trying to get the natural resource protection to happen first, how do we make that happen? How do we encourage property owners to buy into Page 110 Agenda Item No. 12A January 11, 2011 November 9:9tUr 6f 72 an innovative new program and protect natural resources in advance ofa demand for those credits? And what you'll fmd is that the combination of incentives and policies that we put in place did just that, because we now, as we sit here today, have gotten over halfvvay to a 25-year goal for protecting natural resources. Fifty-five thousand, seven hundred acres of privately owned land have been put into Stewardship Sending Areas by the property owners voluntarily, and they have all given up their development rights in return for getting stewardship credits. ... Most of those credits are still owned by those property owners. The only credits that have actually been used to date were used for the Town of Ave Maria. So today -- and you're going to hear from some of the property owners who have essentially banked a large volume of stewardship credits based on their understanding and their reliance upon a program as they thought that it was intended to work. And who has benefited from that? Everybody in Collier County has benefited, because you can probably do the math of what it would have cost Collier County if we had tried to acquire 55,000 acres of land, and it's an enormous amount of money, and we don't have those resources in Collier County. So it's really important on the natural resource side to make sure that this program not only survives, but thrives. So how did we -- how did we deal with this incentive issue? And the way it was dealt with is that there are specific procedures that were set forth in the Comprehensive Plan and then adopted in your Land Development Code that deal with the process of designating an SSA and an SRA, and they are completely separate and apart from the way that you deal with the rezoning process. How did we do that? Well, the first thing that happened is that through the study, the county actually determined through data and analysis everyplace where you could have a receiving area. Not only I J Page 111 ~ Agenda Item No. 12A January 11, 2011 November ~~~aI {}f 72 that, but they preestablished the uses that would be allowed, the development standards that would be allowed, the road cross-sections, the ratios of uses. All of that stuff was put into the program up front. And by doing so, the county then adopted a zoning overlay in your Land Development Code. So you actually put a Camp. Plan in place, and then you rezoned. this entire area, and you rezoned it to RLSAO, and that zoning classification gives property owners in Eastern Collier County the . right, the right, to have those uses on their property if they meet the ._, criteria of the credit system. So there is a process you go through, but their zoning is in place, and those uses are already established by right and have to be implemented through a special process. Let me just go back to -- skipped over this one. This is the map that's in your Land Development Code, and that shows the boundaries of the RLS privately owned land, and that is the zoning overlay that was put in place in your Land Development Code, and that created the zoning classification on the property. So the property has been rezoned. That rezoning process was subject to the standard requirements that Collier County has. You had to go through a process. It required a supermajority vote. It was put in place, and it's done. And now to use the program, you dontt have to go back and rezone property if you're using the credit system. It's already in place. So then how do you designate areas? And the SSA designation process and the SRA designation process follow the same kind of approach. A property owner decides they want to designate, they put together an application that meets the requirements of your code, they bring it to the county, it comes to the County Commission after a review process, and the county then is evaluating that petition on the basis of the factual data and information that is provided in the application. Page 112 Agenda Item No. 12A January 11, 2011 Page 28 of 72 November 9,2010 Now in the SSA, you have, 16 times, had a property owner bring a -- an application to you, and you have approved every one of those, which put the 55,000 acres in place. Every time you did that, you did it by resolution. Every time you did that, you took away existing rights that were on the property, existing rights under the agricultural zoning, and each one was done by a resolution of the Board of County Commissioners. And this is -- this is actually the most recent resolution that you approved. It was back in February. This is Russell Priddy's SSA. Almost 4,8~Q..acres were protected. He was granted credits. He's going to talk to you a little bit about his perspective on it, but that's the resolution that approved that SSA. . So let's talk about an SRA. Same language in the Land Development Code. An SRA is designated by the adoption of a resolution by the Board of County Commissioners. You have to put together specific information. That information is spelled out in the Land Development Code. It is not the same petition that you put together for a PUD or a rezone. It's objective. It's factual. It's voluminous, but there is -- but it is a different process that you -- that you go through. And to date, Collier County has adopteq and approved one SRA, which is the Town of Ave Maria. Twenty-eight thousand-plus credits were assigned to that piece of property, and those credits were exchanged for the right on that property to develop 11,000 dwelling units and alnlost 1.3 million square feet of commercial uses all within the context of the Land Development Code. You did not rezone the Town of ..~ve Maria. You designated an SRA under the zoning that existed, that RLS zoning. And there is the resolution that was adopted by the board in 2005, and it goes through and it sets out the acreage, the number of credits, the fact that you have a credit agreement, and that that resolution was approved by the county commissioners, okay, just like Page 113 Agenda Item No. 12A January 11, 2011 Pa~ 2~ .Qf 72 November 9, LULU you do with the SSAs. Different package of information, same process, same result. So let's, you mow, I guess maybe just step back and try to close this up. We put something together here in Collier County that all of you I know felt very proud of that we had done something different to resolve a very, very challenging set of issues in Eastern Collier County . How do we protect natural resources without buying the land? How do we make sure that people who have property rights don't give them out -- give them up 'Yithout being compensated? You created a very unique program. It's a program that has exceeded expectations. And that was the -- this map that you're looking at, that's the vision for the year 2025, 92,000 acres protected, and we're already at 55,000 acres seven years into the program. I mean, that's extraordinary . So you have -- the property owners of Eastem Collier County, they have stepped up to the plate, they have said, we believe in this program, we're going to give up our rights in advance ofa market for these credits, and you're well on your way towards achieving a 25-year vision ahead of schedule on the conservation side. So let me just wrap up. The RLS is a unique program. It's based on incentives. It is not a regulatory program. A property owner can either choose to participate or not, and if they do not participate, they still have their agricultural rights, they still have their one-unit-per-five-acre rights, and they can use them. . So we want to make sure the property owners choose to use the program that we created rather than using those existing rights that they have. The participation has exceeded expectations, and resource protection has outpaced demand for credits, which means you have a lot of property owners out there that acted in reliance upon the program as they thought that it was intended to work. Page 114 ..- Agenda Item No. 12A January 11, 2011 November '9:g2d~ rJ 72 The process for designating an SSA and the process for designating an SRA are essentially the same. You have different submittal requirements. An SRA goes through a more vigorous public hearing process. But at the end of the day, they're both approved by resolution by the Board of County Commissioners with a simple majority vote. The zoning is already in place, and the traditional zoning process is not available to property owners in Eastern Collier County. So it's not like they have the right to go do it the way we do it in the coastal area, which was to incrementally bring re,.?.oning petitions before the county commission. .. So I'll stop right there because I think it's really important that you hear from the folks who have the vested interest out there. I happen to have been the planner that's worked with them for ten years, but they're the ones that have actually put their property in the program. So I'll stop there, and if there are any questions at the end of the public speakers, I'd be happy to come back up and address questions. Thank you very much. CHAIRMAN COYLE: Thank you. MR. MITCHELL: Sir, the next speaker will be Russell Priddy, and he'll be followed by Dane Scofield. COMMISSIONER COLETTA: Don't forget Nancy Payton. MR. MITCHELL: I put her at the end. CHAIRMAN COYLE: You want to go after the property owners; is that what you had in mind? MS. PAYTON: Yes, please. CHAIRMAN COYLE: Okay. MR. PRIDDY: Good afternoon, now, Commissioners. I had good morning when I brought my speech. But I'm Russell Priddy, and I'm here today representing myself, my wife Lisa, and our two children. Page 115 -- Agenda Item No. 12A January 11, 2011 November 9~~ai 6f 72 We own 9,OOO-plus acres in Eastern Collier County. My children represent the fourth generation of ownership on this land, and that has spanned over 60 years. I'll stop here and do something I can't ever remember doing, I'm going to agree with Nicole. This is not about Jackson Lab. For the next minute-and-a-half, two minutes, this is about Russell Priddy and his family. I've been involved in this program from the very beginning, so I -- I have a thorough nnderstanding of the contents of the program. My family brought in SSA 12 in February of this year. We did so well ahead of the possibility of selling any credits. In fact, we brought it in at probably the worst, worst time to even expect that we would be able to do that. We did so in good faith to let the public know where development would not take place. My family would have never done this if we had any indication or any thoughts that a rezone would be needed for someone to be in a position to come purchase our credits down the road. Why would we gamble? We do ga.1J1ble, but \ve go to Vegas. The rezone took place where the RLSA overlay was approved back in 2004. The zoning's been done. .And I'm not arguing that it took a supermajority to do it. The SSAs and SRAs are simply tools in the Land Development Code that shape the landscape. They're not rezones. If we were going to have to go through a rezone, why bother with this program? We would have -- would have never gotten involved with this program if we were going to have to go the rezone route. At this point we have two options. We can rely on the information that we've been relying on for the past number of years, or we can develop, one-to-five, our ranchettes. And I have to tell you, as I stand here today, that looks pretty good to me. Thank you. CHAIRMAN COYLE: Thank you. Page 116 Agenda Item No. 12A January 11, 2011 November g>~!oY6'f 72 MR. SCOFIELD: Afternoon, Commissioners. My name's Dane Scofield. I'm a managing partner with Half Circle L Ranch, LLP, and we were a property owner in Eastern Collier as well as Hendry COlll1ty. We have 5,300 acres in Collier County, which comprises Stewardship Sending Area number eight. We entered into this program based upon the information presented to us that was adopted by the board with the understanding that in developing an SSA, we would have the assured opportunity that our credits would be able to go to an SRA at some point in the future. Based upon that information, we submitted our application, it was approved, and we banked those credits. My concern here today is over the controversy of approving an SRA. If that process is complicated, if a person or organization seeking an SRA designation has increased costs, increased resource allocation, et cetera, that is going to negatively impact me in being able to negotiate in a market-value scenario, a fair price for my Cr~rl~tc< And that ~s ';) I"onc~m that T ha'tT~ ;t's a conc~rn ofan...r"ne ~"'T1-..0 J.\oI~..U.l....:J. .L~.l l..J. .l {.4 \01 '-'.1.1. ~ J.J. V\oI, J. \oiL 1.1. l)'V.1 W11 holds SSA credits, will have. We're asking you to clarify your intent. I believe the way that I understand the adopted program, that there was supposed to be a . streamline process in pursuing an SSA or an SRA. And I encourage you to bring equity to that process in both cases. Thank you. CHAIRMAN COYLE: Thank you. MR. MITCHELL: The next speaker with be Tom Jones, and he'll be followed by Mike Rosen. MR. JONES: Good afternoon, Commissioners. My name is Tom Jones, and I'm an employee of the Barron Collier Companies, and I've been employed by Barron Collier since 1989. And as I look around this room today, I am certainly one of the few people that were here in 2002 when this rural lands program was Page 11 7 Agenda Item No. 12A January 11, 2011 November 9~~dl Bf 72 adopted. And if you want to take it back a little bit further, there were (sic) even fewer of us here today that were here in 1999. And in 1999 is when this planning concept was thrown on the table that eventually grew into what we now know as the Rural Land Stewardship Program. And we've heard about incentives and what landowners thought. And I think from our perspective, I !mow what I thought the program was, and I think I know what other people's intentions were with this program. When this program was taken to Tallahassee, the Department of Community Affairs said, this really looks good. We need to make sure people participate into this program. And the Department of Community Affairs says, let's put some early bonus credits in here. And what are credits? That's the currency. We not only created a program. We created a currency to make that program work, and that currency were the credits that we're all talking about today. .tAJ1d we had the big leap of faith. \Ve also had Ave Mfu-ia at t.1.e time come into play. But today, our company has put over 30,000 acres in permanent preservation in order to correct -- to collect these credits in this currency that we have. Over 30,000 acres of land are in preservation because we bought into this program under a set of terms and conditions that we thought existed. And what were those tenns and conditions that we thought existed at the time? We thought that the process that was in place to create these credits would be the same process in place to utilize these credits. We didn't get into a program that somebody slipped something past us and made it very easy to generate credits, and now when you want to come use those credits, you've got all kinds of hoops to jump through. And we've even referred to this process as banking credits, and we've banked a lot. It took 17,000 acres to entitle Ave Maria, so Page 118 Agenda Item No. 12A January 11, 2011 November ~~d1 (j 72 we have over almost 14,000 acres sitting out there with banked credits on them. And if I go to the bank tomorrow and deposit $100, I'm reasonably sure -- well, not reasonably sure, but I can go back in a few weeks and I can ask them to give me my $100 back. And they're going to look at the ledger and say, yep, Tom, you got a hundred bucks. You're Tom, here's your hundred bucks. Now what we're hearing about is, I don't know, revision is history to an extent. You can come in and create these credits easily, but if you want to use them, oh, wait a minute, Tom, you need to fill out all this paperwork, and then you need to come back in a few weeks, and we're going to let you know if we're going to give you your hundred bucks back. That's what we're talking about now. We're talking about equity and we're talking about why we entered into a program to bring this kind of preservation at no cost to the taxpayers of Collier County. Thank you. CHAIRMAN COYLE: Thank you. 1-AR. ROSEN: Good afternoon, Commissioners. 1-..1ike Rosen, senior vice-president, Collier Enterprises. I'm not going to repeat everything that you heard Al Reyno Ids say and Tom Jones and Brad Cornell and everybody. I certainly agree with everything they've said. But representing Collier Enterprises, we've moved fOf\.Vard based on everything they have said and based on everything that's in the law here in Collier County. With the Town of Big Cypress approximately four years ago, we have spent tens of millions of dollars in time by moving forward with the Big Cypress. We have had great meetings with the county staff. We've met with Nick Casalanguida and talked about transportation issues that you've never seen before here in Collier County. Alternative transportation, alternative modes of transportation, fuel, solar lighting, things that you would not normally see in normal J Page 119 Agenda Item No. 12A January 11, 2011 November~,g~b1CO 72 developments, but that's the paradigm shift in Rural Land Stewardship. That's what you want, and that's what we've agreed to do. The surprise that we're getting is, is this issue today, and it's a very big swprise to us. We did not anticipate this was going to happen, and that's not the way the SSAs went. Those were pretty easy. Three-to-two vote, and we've put in thousands of acres, as my colleagues have done and said, and now we're talking about an SRA looking for a supermajority. And it doesn't seem to me that that's what we all bargained for years ago. You know, if there's an issue, you know, with a particular project, you know, whether it be my project, Town of Big Cypress, or any other project, you have the time and the ability to review those projects individually. But the issue that I have is taking this very good program, which Al said is the only program so far that he knows in Florida -- and he's correct. It was used as a model though to try to get other counties to adnnt ;t ;n th~ st<:lt~ <:IS UT~l1 T'h~ ;ss"e's bAC""~.o n DC ^ but that'.... up'" .1'" .1 .1'-' LUoI.'-' U. VY '-'.1.1. J. .1.1'-'.1 U. '-' V.lU.\..I a rl.., .L I:) going to change within weeks hopefully, but it's also through our meetings with the ULI it's being tested in other states as well, so we're far ahead of everybody. I would hate to see it jeopardized, you know, by a simple issue as we're talking about today. I ask you to consider that very carefully in everything that we've done and all the commitments we've made. Thank you for your time. CHAIRMAN COYLE: Thank you. MR. MITCHELL: The next speaker is Mitch Hutchcraft, and he'll be followed by Robert Mulhere. MR. HUTCHCRAF.T: Good afternoon. My name is Mitch Hutchcraft, and I'm here on behalf of King Ranch and Consolidated Citrus. Our family-owned company has a 1 50-year legacy of agriculture, Page 120 Agenda Item No. 12A January 11, 2011 November '9:g20~ B 72 cattle, and land stewardship. I've been personally involved with this program since about 2001 in one form or another. I have been monitoring this program and how and when it would be appropriate for our company to participate. To date, CCLP, Consolidated Citrus, has not participated. We are the future of this program. But in order for us, our company, to be in a position to make that very long-term commitment, we expect to see a number of things; predictability, equitability, we expect active support by the county and, most importantly, a meaningful ._" incentive-based progranl that's sufficient for us to risk our economic .' future in the program. . Consolidated Citrus, along with all of the other landowners, have already participated in several long-year -- multi-year evaluations, we've worked collaboratively with the environmental organizations on how to proactively address these environmental issues, and we've ultimately surrendered rights from our property. We did this in exchange for the opportunity to know that when UTP rlo p'.:Irtl'CI'p'.:ltp m' thp 1"\'-o~1'n the'-p uTou1r1 hp a .t:'.al1''- prerl,r-tabl13 .... ~ v "~~ '""~v ~ ~ y~ ~".L.u., J.~"" .LV U'~ Ii, \,..u."" J.~, non-political outcome. Based on the recent suggestions that we're talking about today, I believe that that requires an extra burden upon the landowners and extra zoning process on top of the multi-year studies, the Compo Plan amendments, the zoning overlay, the Land Development Code changes that have already been put in place, and that, for our perspective, provided the predictability, the fairness, and the active support by the county. I think if you go forward with the new interpretation, those will all have been dramatically eroded. The result of this is that our organization is very cautious about participating and, moreover, we're concerned that our rights have been taken without the county following through on their end of the bargain, which is the incentive of predictability and equitability. Page 121 Agenda Item No. 12A January 11, 2011 November '9:92(H fJ 72 We also feel that unless the county recognizes the environmental benefits of this program can only be achieved through the participation of the landowners and the landowners can only participate as a result of equity fairness, the only result of going fonvard with this new interpretation is the erosion of rights and property value, and the landowners will have the -- will be put in a position where we have no alternative except to ask that you reaffirm your commitment or that you return us back to the situation that we started with, which was our full rights. And ~.Q with that, I would ask that you demonstrate your support for the'Rural Land Stewardship program by reaffrrming the simple majority vote. If you have any questions, I'd be happy to answer them. MR. MULHERE: Good afternoon. For the record, Bob Mulhere. I'm not here on behalf of any of the property owners. I'm here to provide my recollection with professional interest, since I was the director of planning for Collier County during the Comprehensive Plan adoption during that process, and then subsequent to that, the county hired me as the lead planning consultant through the culmination of the Comp. Plan adoption process and the LDC amendment process. And my recollection is that there was never any intent for this -- for the creation of an SRA to be considered a rezone. And to me, it's very, very clear. If it -- if it had been the intent to require a rezone different from an SSA, for an SRA, we would have simply stated that in the regulation. We have criteria for rezones. And if this was a rezone, that criteria would apply. It doesn't apply. We have very objective criteria that you review when an SRA comes before you, not the subject of criteria that you have when you look at a rezone, for example, compatibility with adjacent lands. Those issues don't apply here, because you rezoned the land when you adopted the overlay and Page 122 Agenda Item No. 12A January 11, 2011 ~g~:i8 oj 72 November ':I, LulU created the open land designation that could be then designated, not rezoned, but designated as an SRA. So I think there are some other factors to consider. I remember that we hired an expert, Jim Nicholas, who, you lmow, came to town; He's a world renowned expert on transferable development rights or transferable credits. And one of the key components that he recommended was that you not require an entitlement process for the landowners, that they had to have certainty in this process. And that is another ~eason why we never intended this to be a rezone. Because if you think about it, if these landowners have to go through a rezone on top of purchasing the credits, it actually functions as a disincentive and not an incentive. And it seems very logical to understand that. I guess one last thing I'd like to say is, even within the -- even though they're separate programs, even within the rural fringe mixed-use district. we Dut criteria into the code. You can develoD . ... i using TDRs without even having to go through a rezone simply by going through a Site Development Plan. It's only when you want to vary from that development criteria that you then have to go through a PUD rezone. So a separate issue. I don't want to confuse issues, but I heard said, you know, there is no requirement even in that area to go through a rezone. You can develop by right using TDRs. And in this case, there never was any intent, at least to my recollection. Thank you. MR. MITCHELL: The next speaker will be Doug Fee, and he'll be followed by Duane Billington. MR. FEE: Good afternoon. For the record, my name is Doug Fee. I'd like to echo what Nicole Ryan put on the record here. I just have one quick question, which is, why and how did we get here? Is it Page 123 Agenda Item No. 12A January 11, 2011 PrPgf" ~9 W 72 November ':1, 2u 1 U that the property owners in the RLSA were told that they did need a supermajority on these matters? Is there something from the county, someone from staff, someone from the County Attorney's Office that . has actually opined that they do need to have four votes instead of three votes? I haven't seen any documents coming from the county's side. I feel like as a public member, that I've heard one side, and I understand their side, and I might even agree with their side, but I haven't heard the county's side. Further, what I want to do is just r,~ad a few things into the record. 2.02.01, establishment of official zoning outlets. The location and boundaries of zoning districts established in this LDC shall be forth (sic) and shown on the official zoning atlas of Collier County, which is incorporated by reference into this Land Development Code and as fully described and set forth herein. The district symbol or symbols as set forth in the LDC shall be used to designate each district. Under D of2.02.01, no cha..lges of any nature shall be made in the official zoning atlas or any matters shown thereon or in the zoning districts or regulations contained herein except in conformity with the procedures established in this Land Development Code and consistent with the Collier County GMP. Any authorized change of whatever kind by any person shall be considered a violation of Land Development Code. I've got another one here. In 10.03.05(N)(2), it reads, in the case of all proposed changes or amendments, such changes or amendments shall not be adopted except by the affirmative vote of four members of the Board of County Commission. The last one I have is, under 4.08.07(F)(3), update of the official zoning atlas and the RLSA overlay map following the effective date of the approval of the SRA, the county shall update the official zoning atlas to reflect the designation of the SRA, blah-blah-blah, okay. Page 124 Agenda Item No. 12A January 11, 2011 November ~926~ Bf 72 All I'm pointing out here is, I'm not a land expert, land planning expert, or an attorney, but what I am is a citizen who does follow the Land Development Code, the Growth Management Plan. I respect it. It's law. I don't lmow whether this is a rezoning matter or not, but if it is, there is a process to go through that. And as a citizen, I'd want it to be equal. There's only Collier County. There's not an eastern Collier and there's not a western Collier. It's our Land Development Code and Growth Management Plan. Thank you. , MR. BILLINGTON: For the record, Duane Billington. I, too, am a little bit confused as to what everybody's so upset about. We're not talking about the denial of property rights to form an SRA. We're talking about what's required vote-wise by the County Commission in rezoning part of an SRA. I'd like to read in part a quote from Mark Strain who is on our zoning board. He has been intimately familiar with the goings-on with the formation of all of this. And I'll quote as follows; Th~ requirement for supermajority vote is already law. There is no reason to restate the obvious within the RLSA regulations. There's one clarification to the four-fifth vote, one clarification, only one clarification, and it was pwposely added where existing zoning was accepted on lands already in use. The same exception was not added to the Stewardship Sending Areas, SRAs, where all the new zoning takes place for towns such as Ave Maria and the proposed Big Cypress. Again, we're not talking about whether or not they can form an SRA.W e're talking about the quality of the zoning. If everything is adopted as planned, as projected, in the SRA, we're going to over double the population of Collier County. To suggest that that should be done under a system that doesn't require both four-fifths of a vote, to me, is ludicrous, and it's also contrary to Page 125 Agenda Item No. 12A January 11, 2011 November 9;~6i(}f 72 the law. The law was put in place in 2002 after the SRA and SLA program was set in place. And I'd like to submit the following in the record. They're copies of the law. So, again, with all the population increase, requirement for roadways and everything else involved, it should require a four-fifths vote. Nobody's rights are being denied. It's a matter of having a determination over the quality of the development, and that should not be waived by this board. MR. MITCHELL: The next speaker is Nancy Payton, and sh~.'.U be followed by John Passidomo. MS. PAYTON: Thank you. Nancy Payton representing the Florida Wildlife Federation. The Rural Land Stewardship Program is a settlement of a growth management lawsuit brought by the State of Florida and Florida Wildlife and Collier Audubon; we're interveners. And one of the motivating factors for prevailing in that lawsuit \vas that the county '...'....sn't. prope7"ly pr.n.....on....II.ng on...7~7"ommon........lly '"'on,...~....~"rTa. la.....ds vva 1.J. Vl,.v\,.lL \,.I VJ.11 l\,.<J.l,.Q.U .ct\"<J..ctJ.LJ.VvlJ.1 . The RLSA addressed that issue and healed a number of very deep wounds within the county between landowners, developers, and conservationists. It's an incentive program that rewards landowners who protect wildlife habitat and wetlands. To sever or produce Rural Land Stewardship credits, and from our perspective, the earlier the better, requires a 3-2 vote. That's not in dispute. It's a 3-2 simple majority vote to protect and create conservation lands. Logic says that the other half of the equation is that to use those credits also requires a simple 3-2 vote. But because we're not dealing with logic today -- this is a legal issue -- we asked our attorney, Florida Wildlife Federation and Collier County Audubon's attorney, Tom Reese, to opine; were we thinking correctly and had our understanding of the program been correct, that it's a simple majority Page 126 Agenda Item No. 12A January 11, 2011 November 9~~61af 72 that doesn't require a supermajority? And Tom Reese was our attorney through the Compo Plan challenge, ten, 12 years ago, and continues to be our attorney through various other issues relating to the Rural Land Stewardship Program. This is his opinion. It is my opinion and understanding that approval of an SRA, Stewardship Sending Area designation, or an amendment to an SRA does not constitute rezoning action or a conditional use approval. The RLSA overlay has been adopted in the Comprehensive Plan's Future Land Use Map, and that's by a majority -- supermajority vote, and on the county's zoning map and, therefore, constitutes the zoning of the land. It is proper for Plorida Wildlife and Collier Audubon, as well, to state the understanding that supermaj ority vote is not required and has not been required in prior SRA actions by the Board of County Commissioners. Again, that was the opinion of our land use attorney, Tom Reese, who has worked with Collier Audubon and Florida Wildlife for many years to do what's right by nature. And there does have to be that balance in the RLSA that what's right by nature has to be right by the landowners. And we urge you to affmn that a simple majority is needed to designate an SRA. Thank you. MR. P ASSIDOMO: Good afternoon, Mr. Chairman, members of the commission. My name is John Passidomo. My address is 821 5th Avenue South. Our fmn represents the Eastern Collier Property Owners. I indicated in my sign-up sheet that I'd be happy to respond to any questions of a legal nature and that otherwise I'd defer my comments unless and until a question of a legal nature were to arise. So with that, I respect your time, be happy to respond to any Page 127 Agenda Item No. 12A January 11, 2011 November ~~dl (f 72 questions, but I'll otherwise defer. Thank you. CHAIRMAN COYLE: Thank you very much. MR. MITCHELL: Sir, that was your last speaker. CHAIRMAN COYLE: Okay. Commissioner Coletta, and then Commissioner Henning. COMMISSIONER COLETTA: Thank you, sir. This has got a long history. And I'm not too sure, but I think every one of us, except for possibly Commissioner Halas, was here for most of it. Were you here Commissioner Halas when we took the final -- COMMISSIONER HALAS: At the tail end. COMMISSIONER COLETTA: The very end? I was involved with it ever since '97 before I was a commissioner and going to the meetings and following the whole process. And to be honest with you, when it fITst started oft: it seemed like one of these pipe dreams that would never reach the end of the road. Vou la....o.n:r to be "lbla. to ""'~e "..... Hr~th ~ ~1~.... +1-.",t '..:ronl~ h~ .I. ! vv, \.. U. '-" \.. ,-"VU.! up Vy!\...u u. p!a.u 1..J.J.a vv UJ.U LJ'-" incentive-based upon a person using his own land to secure the remaining land to be put into conservation; in other words, taxpayers' money was not going to be used. We were asking them to put their own land up as collateral to be able to take the next step. It did -- it seemed like an impossible dream, you lmow, but everyone was sold on the program one at a time, some people changed their minds going into it later then came back in. And the amazing part was, is that when the environmental groups came aboard and bought into the program. And it wasn't in the beginning, Nancy. I can remember how contentious it was for the first t\vo, two-and-a-halfyears. I mean, you and Nicole and Brad were just at odds with everybody that was on that committee and the direction it was going. MS. PAYTON; No. The Conservancy was on the committee. Page 128 Agenda Item No. 12A January 11, 2011 November ~~~()>f 72 COMMISSIONER COLETTA: Oh, they were? MS. PAYTON: Yes. COMMISSIONER COLETTA: Okay. So if anything went wrong, we'll blame the Conservancy. But if I can, I'd like to address my questions probably to Bob Mulhere, because you were directly involved at the time. Now, I'm going to repeat back some things that I heard today, and you tell me if I got it right and maybe embellish upon it, okay? At this point in time the only thing that we have used that activated this process has been Ave Maria? MR. MULHERE: That's correct. COMMISSIONER COLETTA: And Ave Maria was not a rezone, it was a -- what was it called -- approved by resolution. MR. MULHERE: It was approved by resolution. It was a designation of an SRA, yes, sir. COMMISSIONER COLETTA: Okay. And Ave Maria, however, was approved by 5-0 vote. MR. MTJLHERE: Correct. COMMISSIONER COLETTA: So no one ever challenged what took place at that time; however, I can remember all the conversations, and I never heard anybody mention the fact it was going to be a supermajority that was going to have to cany the day at the time, and I'm sure about this point in time that anyone that's anyone in this audience that was going to do his own research would have done due diligence to find out if there was anything in the transcripts that were out there. However, at this point in time, it never came up, so obviously nothing took place. We know that there is -- there is a requirement, and it's $tated vel)' well within enabling documents, that it requires a simple majority to be able to work with the sending lands; is that correct?rMR. MULHERE: That's correct. Page 129 Agenda Item No. 12A January 11, 2011 November 9:~()>f 72 COMMISSIONER COLETTA: Okay. However, it was basically silent when it came to the receiving lands, and that's where the discussion really gets interesting. However, with that said, why would anyone want to be able to be able to allow only three votes at one end and require four at the other? It makes absolutely no sense. It doesn't follow pure logic that you would get from A to B by increasing the nwnber. And I'm sure very much so that there would have been other concessions put into place if there was a supermajority vote required at either end of this process that would have been more favorable for the landowners who, at this point in time, still haven't received anything really in compensation. Is there something I'm missing from what I'm telling you right now? MR. MULHERE: I don't think so. If I could, I mean, I would liken it to other kinds of approvals that you make on developments. If you think about a plat, you have a plat that comes before you. There's ... ,..1-.o.ckl~""+ The staffs ~ovl'e'lwed ~t TF ~+ ........o.o+s +1-.e "'~l.+e"";a 'IT".... a \.IU\.I J.i:)&.. J. \.I U.. J.J..lL lU\.I\.I&. 1.11 \.11 &. .1.1 , J vu. approve it with a simple majority. Same thing with an SRA. There's exhaustive criteria. There's pages and pages of criteria in the Land Development Code. Now, on a typical rezone you don't have that. You don't have that because it's subjective criteria versus the objective criteria that you have before you when you look at an SRA. It's just logic. COMMISSIONER COLETTA: Mr. Passidomo, you offered your legal services to us as far as the way you understand this situation. If I can, I do have a question for you because one of the -- I'm sorry? COMMISSIONER HENNING: You know, I don't want to receive any free legal advice. COMMISSIONER COLETTA: Well, don't wony. We'll make him pay some way down the road. Page 130 j' Agenda Item No. 12A January 11,2011 J;>age ~6 Rf 72 November~, LOlv Mr. Passidomo, if you would, please. This is still a contentious issue for reasons that aren't even related to what we're here today about. Can you tell me, judging by what you've seen of the political climate out there, do you think this will go unchallenged in the court system if we were to rule in favor of the three versus the four votes? :MR. P ASSIDOMO: Mr. Coletta, I don't think that's a legal question. I think you're in a better position to assess the political implications of what you do than I am. COMMISSIONER COLETTA: So -- okay. Well, that's a polite way to say -- CHAIRMAN COYLE: That's a legal reply. COMMISSIONER COLETTA: I understand. I mean, whenever you don't understand it, it comes under the definition of a legal reply. MR. P ASSIDOMO: To elaborate, Mr. -- Commissioner Coletta, this is a legal issue, and ultimately the question of whether or not effecting an SRA creates a change in a zoning ordinance is a legal issue, and it's a legal issue that requires a timely, a deliberate, and an authoritative resolution based only on the relative merits of the legal Issue. And it's -- there is no process in the county to interpret a special act, and I think Mr. Klatzkow was very clear about that two weeks ago. He said that the process that you're accustomed to looking at the county is limited to an interpretation of your Land Development Code, your Growth Management Plan for the boundaries of your zoning map or your Future Land Use Map. That's all the planning director can opine about. And the fact is, I think what we clearly agree about is the operative question here is, one, under the special act in 1967, and that is, does an SRA constitute a change in a loca- -- in the zoning ordinance? We've submitted a very large memorandum that unequivocally Page 131 Agenda Item No. 12A January 11, 2011 November ~~~dl ~f 72 says, no, it does not, for a lot of different reasons. The general rule, of course, is that in a democracy, fundamental to that concept is a majority rule controls. And that concept is embodied in your code, with specific exceptions in your code, but there is none in your code. The only exception that could be written in is the 1967 Special Act. And that's something that, with all du.e respect, you don't have the ability to interpret, your planning director doesn't have the ability to interpret, and I guess getting to Commissioner Coletta's question, only a court of law or anoth~r.judicial tribunal that could do this on a timely, deliberative;' and authoritative basis would have the ability to' decide. COMMISSIONER COLETTA: Well, Chairman Coyle, I yield to my fellow commissioners. I see the lights are all up, and I'll come back with some questions in a minute. CHAIRMAN COYLE: Commissioner Henning is next. COMMISSIONER HENNING: Ava Maria was adopted as a nDU co.,.....~,...t? .LJ.1., .1..1.vv; MR. KLATZKOW: It was a combination. It was a DR!. It was also an SRA. COMMISSIONER HENNING: And right. So a DR!, you approved a development order, right? MR. KLATZKOW: Yes. COMMISSIONER HENNING: You do that by resolution or you do that by ordinance? MR. KLATZKOW: I believe it's resolution. COI\1MISSIONER HENNING: You do that by resolution for all DRls? MR. KLATZKOW: (Nods head.) COMMISSIONER HENNING: And that is the only zoning action that we have done within the RLSA except for removing development rights from properties, correct? Page 132 Agenda Item No. 12A January 11, 2011 Pag~ 48 of 72 November 9, LulO MR. KLATZKOW: You have established a number ofSSAs where development rights, to some different extents, have been stripped off. COMMISSIONER HENNING: And how do we -- that's -- yeah. MR. KLATZKOW: The.ordinance specifically says when you do that, it is by resolution by three votes. COMMISSIONER HENNING: Right. How do we do it in the fringe? How's that done in the fringe? I'm asking our staff some questions. MR. BELLOWS: Good aftemqon, Commissioner. My name's Ray Bellows for the record. What was the question again? COMMISSIONER HENNING: Well, how do we -- how does -- how do we approve stripping credits off sending lands within the fringe? MR. BELLOWS: Within the Rural Land Stewardship Area or the rural fringe? COMMISSIONER HENNING: No, rural fringe. IvIR. BELLOWS: A transfer of development rights. COMMISSIONER HENNING: Correct. MR. BELLOWS: Yep. COMMISSIONER HENNING: Does the board do that? MR. BELLOWS: I'm not -- COMMISSIONER HENNING: Mr. Lorenz, your department does that. I'm surprised you're still sitting back there. MR. LORENZ: For the record, Bill Lorenz, Land Development Services director. With -- the Transfer of Development Rights within the Rural Fringe mixed-use district, is an administrative process. COMMISSIONER HENNING: So we set a higher standard within the rural stewardship where it has to come to the Board of Commissioners? MR. LORENZ: The SSA credits have to come to the board, Page 133 Agenda Item No. 12A January 11, 2011 P.G!ge 4.9 0172 November~, 2ulu correct. . COMMISSIONER HENNING: Okay. Has your staff had communications with the owners of Ave Maria or the owners of rural stewardship about this issue of simple majority versus supermajority? MR. LORENZ: Yes, sir. Ray Bellows has. COMMISSIONER HENNING: Okay. It is an interpretation of our Comprehensive Plan which the RLSA resides in and the Land Development Code; is that correct? MR. LORENZ: That would be correct. COMMISSIONER HENNING: And so ifthi~js not about Ave Maria, what's the rush? Is it the thousand-dollai' application fee, correct me if I'm wrong, for an official interpretation? Is that the issue? Do we need to waive a thousand-dollar fee for the landowners to get an opinion to bring this process up correctly to the board if you don't agree with staffs opinion, to be properly advertised so that the public can participate in this, or is it about Jackson Labs? You Imow, the law is very clear, our ordinance on rezones calls for a supenllajority. Special act of'67 and 2001 defines a zoning act, a definition of an ordinance can be a resolution. I don't know why welre doing this. Y oulre circumventing the process. It just gives a lot of questions to the public out there what this is really about. If it's not about Jackson Labs, let's do it right. Get an official interpretation. Bring it back to the board if you don't agree with that official interpretation. Let's change law if we need to change law. But I want to give everybody the right. If we're going to require a simple majority, I think all the landowners, including a church, which is asking for a conditional use -- it's done on a resolution -- requires a four-fifths vote. So -- but I also would like to make it a supermajority to raise taxes or fees. I don't think this is a proper venue, and it will be challenged Page 134 Agenda Item No. 12A January 11, 2011 ~gE}" ~O of 72 November~, 2ul0 . either way. Everybody said it's not going -- it's not about Jackson Labs. It's not about their zoning map. So if it's not about that, that's the only action that's coming, let's do it properly. That's all I have. MR. P ASSIDOMO: Mr. Chairman, I think Commissioner Henning raised three points. The fIrst one, does a DR! development order constitute a change in zoning? Clearly it does not. A DR! is intended just to mitigate regional impacts on infrastructure. It's -- it doesn't -- it's not zoning. The second is, is there an existing process? Well, don't take my word for it. Take your own county attorney's word for it. Let me,.._.. quote verbatim two weeks ago in response to your question, ." . Commissioner Henning. Now, the board has the power -- I'm quoting from Mr. Klatzkow. Now, the board has the power to interpret its own ordinances. And Mr. Henning is right, there is a procedure for that. That's a public procedure, but this is just more than your own ordinance. This is a special act, and that you don't have the authority to interpret. That came out of Tallahassee. And in illY opinion, that's that special act. It's what's going to control this issue. Finally, if the question is a change in the zoning ordinance, I'd suggest to you that there are different kinds of changes in the zoning ordinance. If -- an SRA, which would be considered under that analogy, an upzoning, then an SSA would be considered a downzoning, and both would be considered a change in the zoning ordinance. And the fact is, there was a preexisting 1967 Special Act, and if the LDC says you needed three votes to effect an SSA, that couldn't trump the preexisting 1967 Special Act because it would have constituted a change in the zoning ordinance, albeit a down zoning in the change in the zoning ordinance. We think, as Commissioner Henning is suggesting, there are legal issues here. They should be resolved in the proper forum, but Page 135 Agenda Item No. 12A January 11, 2011 November ~g261 rj 72 there is a sense of urgency because a cloud has been created over an award-winning program that will have irreparable impacts on the viability of that program. We think it calls out for a timely and authoritative and an absolutely certain resolution, and it would be done. And we agree, this isn't the forum to do it, and no one here has asked you to do it. CHAIRMAN COYLE: Commissioner Halas? COMMISSIONER HALAS: County Attorney, what's your take on all this? MR. KLATZKO\V: The item before the board, brought by Commissioner Coletta, is to ascertain the board's intent. If you had a specific intent at that time, okay, that it was supposed to be three votes, that's fine. I can't fmd anywhere in the record that says that. I don't think the issue was ever discussed, to be perfectly blunt with you. This process took at least two-and-a-half years of hearings to get through. I can't fmd one sentence on one transcript that ever raised the 1C'C'ne all right ~o>o>u., J. J..L ""I.. I asked Mr. Passidomo months ago if they would consider putting in a request for an official interpretation so we can get this done before the board in a public hearing. The developer at this point in time hasn't chosen to do that. You're going to get a -- you're going to get an application before you relatively soon. It's going to be for a map change. At that point in time, you know, as things are going now, it's going to be the opinion of both staff and this office that it's going to be four votes to make that change. And at that point in time, I suppose if there are only three votes, there will be litigation. Perhaps .there will be four votes, and this issue will go away. I don't know. But what I can say is that this is all about Jackson today in my opinion. There is no other SRA coming down the road in the immediate future. It's Jackson. And unfortunately it's hard Page 136 Agenda Item No. 12A January 11, 2011 November~,g2Mtl72 to get a rational legal discussion on this because emotions are running high in this particular application. COMMISSIONER HALAS: Is there a possibility, is there a possibility, of a legal opinion that could be addressed by an outside individual? MR. KLATZKOW: The only legal opinion at the end of the day that's going to matter is a judge's legal opinion. You can get 500 private attorneys give you different opinions here. They don't matter, okay. Sooner or later a circuit court judge will rule on this. It mayor may not be appealed. You'll get an appellate court ruling on that. That mayor may not get appealed. You will eventually get finality on the Issue. COMMISSIONER HALAS: Okay. Would it be -- would it be possible to have someone from the legal profession other than a lawyer, such as a judge, that would look this whole -- all the evidence over, what we would be presenting them, along with the landowners? l\1R. KL..A.TZKOW: I don't think -- if this -- Jackson Labs is going to be challenged -- and I don't know that it is -- I don't know that you're going to get them to agree to some sort of binding arbitration or binding mediation. I don't think that's possible, sir. Now, you also have legislative -- you have the ability to change this by legislation. The '67 act is not carved in stone. You can amend that if you wish. The RLSA is not carved in stone. You can amend that, if you wish. There are processes for this. You don't necessarily have to go through a judicial mechanism in order to get finality . You as a legislative body can legislate, and you can ask for a special act to be modified to either take the RLSA out of the 1967 Special Act, in which case we don't have to worry about appeal upon appeal, or you can keep it in. You can make the determination that, yes, you want this. -' Page 137 I. Agenda Item No. 12A January 11, 2011 NovemberP9;~m'() 72 You don't have a single land use change in this county that doesn't require four votes, all right? Get -- what Commissioner Henning was saying. You want to put a daycare center in the basement of a. church, it's four votes. They're saying you can put an entire town out there, industrial, commercial, residential, 10,000 people living out there on three votes. I don't lmow that that was the intent. COMMISSIONER HALAS: Well, I'm not sure where we can go today because this thing is very emotionally and politically charged, and I'm not sure the direction that we can go on this thing, because it's going to be damned if you do and damned if you don't. I'm really not sure what options are open to us as board members, and realizing that this is my last day here, I'm not sure that I'm in a position, after hearing you opine on it, exactly what direction we can go here. So I've tried to come up with some options where somebody other than -- and we can't send it -- you know, when I look at, well, ""lre'll c.e.....ri ~+ l...ack +0 th~ Dla~~~T'lrr rOT'V\ml'S"~O"" tho "'h,.,~~,..,.," n.+ +1-.0 vY ~ .;) .uu H. V "" Lv .1. 1 LllLUJ.5 '--' .1.J.J.J. .;)J. LJ., L.l.Lv \.IJ.J.a.U.J.J.J.CUJ. V.1. LoJ.I\,; Planning Commission has already stated his case in the paper. And I've got some. concerns about -- in the manner in which he opines on things that are still being discussed, and I think that that weighs heavily on the direction -- it's not an open policy and it's not in the sunshine. And now you tell me that we have a problem here -- well, because if somebody is a -- ends up using his position as a bully pulpit, I've got a real problem with that. CHAIRMAN COYLE: Commissioner Fiala? COMMISSIONER FIALA: Yeah. I think we should just cut to the chase here. Obviously we're not going to be making a decision, nor do we have a right to make a decision today. I heard somebody say it probably isn't a good idea to hire attorneys, because they're not going to be able to make that decision. There's still going to be Page 138 Agenda Item No. 12A January 11,2011 PA9~~ q( 72 November ':1, Lulu problems with that. Why don't we just get a legal determination from a judge? Why don't we have -- you mentioned judge, you mentioned judge, we've heard judges mentioned a few times. Why don't we hire a legal judge, a judge who maybe has been retired? But we've used judges in the past, a judge mediator; we've used a judge arbitrator. We can hire them to come in and make this determination. And we have -- we have nothing to do. Yau hire the judge, and our people can \vark \vith you to hire a judge so that the judge works with the landowners as well as with the county so that they have both coming in -- but you guys can pay for it. And then it will take it out of the political realm and put it in a judge's realm, because -- especially if we've got somebody that's retired. He doesn't even work in the system. You know, he's going to just come in from a completely unbiased point of view, and let him make the determination. What do you say about that? COMMISSIONER COLETTA: I think that's a great idea. MR. KLATZKOW: You can't do that, ma'am. It's a great idea, ma'am, it really is, but unfortunately this comes down to Jackson. And at the end of the day, if there's opposition to Jackson, they take it to court. The fact that we've hired a retired judge to opine on this is not going to -- it's not going to bind the court that actually has the dispute before them. COMMISSIONER FIALA: You mean to tell me that ajudge cannot make a determination as to the interpretation of four votes or three votes? MR. KLATZKOW: They can if you want to start a declaratory judgment action right now, go to court and just ask. That's the mechanism to do that. But there may not be that need, ma'am. I mean, the Jackson Lab issue may be five-nothing. It may always be five-nothing. I don't know. I mean, we could be worried about nothing here. I mean, it Page 139 Agenda Item No. 12A January 11, 2011 November ~,g2015 72 didn't come up for Ave Maria because it had such wonderful support. COMMISSIONER FIALA: Let me hear from the landowners, okay? I'd like to hear from the landowners. MR. P ASSIDOMO: Thank you, Commissioner. With your indulgence, Mr. Chairman. The fact is -- and I think Mr. -- there are several people who are going to challenge the Jackson Lab premise here. They have nothing to do with Jackson Labs. They don't give a hoot about Jackson Lab. Let me respond to the question about why we're here. You've alr~ady-been told that an official interpretation doesn't work: That's what you were told last week. There is no other alternative available to get a resolution. If there is a 5-0 vote on any of these issues that are coming up with Jackson Lab, that doesn't do anything to remove the cloud that's been placed on this process. And everyone who has walked into the process and imposed easements on their property will not know now or at any time in the fhture whether those are marketable credits if they've received an exchange for imposing those easements on their property. There is no way to get to that issue. And there is a way to get to the question of arbitration. And we wouldn't appoint an arbitrator (sic). It's done all the time where two parties agree on an arbitrator, and they share in the cost of the arbitrator, and the arbitrator takes testin10ny and fmdings of fact and receives legal memoranda and takes legal issues. We had -- part of our frustration is we've submitted a legal brief this thick. We haven't got back a sentence of contrary legal authority to our opinion. We want to be accountable for our legal opinion, but there is no process to be accountable in a timely and deliberate and authoritative way Qther than appointing an arbitrator. It works. COMMISSIONER FIALA: I think that's great. I think it takes it out of this realm -- COMMISSIONER HALAS: Yep. Page 140 Agenda Item No. 12A January 11, 2011 November ~~~1 eJ 72 COMMISSIONER FIALA: -- and puts it in a completely unbiased realm. I can't see a better solution in my opinion. MR. P ASSIDOMO: We could get it done in 30 days. So by the time the issue came up on December 14th before you, it's resolved and it's resolved in perpetuity. Then you can go to court if you want to and have that actually approved in a court and made into a court order. But what it does is it removes the cloud of uncertainty and the question of undue political influence over a legal decision, and it gets a decision made by the highest possible authority. There are former justices of the Florida.Supreme Court who do this now for a living. COMMISSIONER FIALA: And we had them do that once for us, didn't we, up in the Clerk's Office or something? I remember us meeting with some former judge from, what was it, the supreme -- CHAIRMAN COYLE: That was a mediation. COMMISSIONER FIALA: Mediation, yeah. That's right. COMMISSIONER HALAS: That's what they're talking about here. COM1vlISSIOl\i~R FIALA: Yeah, okay. MR. P ASSIDOMO: It's the surest, simplest, and least expensive way to get justice, and that's all we're asking for. COMMISSIONER HALAS: I have to go along with Commissioner Fiala on that. I think that's. -- we've got to take it out of the political realm. COMMISSIONER FIALA: I think so, too. COMMISSIONER HALAS: Yep. COMMISSIONER FIALA: Okay. So can I make a motion to do that? COMMISSIONER HALAS: Sure. CHAIRMAN COYLE: If you'd like. I've got Commissioner Henning and Coletta waiting to make some comments, but -- COMMISSIONER FIALA: Oh, okay. COMMISSIONER COLETTA: No. Go ahead. We can always Page 141 I I I J Agenda Item No. 12A January 11, 2011 November~,g~e1V 72 follow up. COMMISSIONER FIALA: Okay. I'd like to make a motion then that we have the county manager work with the attorney for the landowners to hire a judge, a retired judge -- COMMISSIONER HALAS: From the supreme court. COMMISSIONER FIALA: -- and take it out of the political realm and into -- into the court system ~- well, it's not really the court system -- but the legal system so that we can get a legal determination on this once and for all. COMMISSIONER COLETTA: I'll second that. But who pays for it? CHAIRMAN COYLE: You better split the cost, otherwise you're going to fmd that they'll be -- COMMISSIONER FIALA: That's right, that's right. COMMISSIONER COLETTA: Yeah, to be unbiased. CHAIRMAN COYLE: -- somebody sees favorable to one person or the other. C01'vllv1ISSIOl'"ffiR P~AS: It's got to be -- COMMISSIONER FIALA: Yeah, you're right, absolutely. . COMMISSIONER COLETTA: Okay. I second that. COMMISSIONER FIALA: Okay. CHAIRMAN COYLE: Okay. We have a motion by Commissioner Fiala to select an arbitrator, seconded by Commissioner Coletta. Commissioner Henning, go ahead. COMMISSIONER HENNING: Well, most judges don't have land use experience, so good luck with that. The -- you know, it's still circumventing our process. You're saying that the landowners, the big landowners out east, doesn't have to go through our process. We can do it -- a simple process, and if it comes back that we do a simple majority versus a supermajority and that is challenged into the courts, it goes into the courts, you can delay Page 142 Agenda Item No. 12A January 11, 2011 November ~,g~M. 'd 72 Jackson Labs. You see, I think -- and Mr. Passidomo put it bluntly. We can get this done before the 14th before that comes up. It's all about Jackson Labs now. So -- and I can tell you I can separate issues of 130 million without very little public process and changing a zoning map. I can do that. COMMISSIONER FIALA: Yes, but what about all of these landowners that own land that have to make these decisions to? COMMISSIONER HENNING: See, there is..not a rush to do this. I'm encouraging you to do it right. The process that we have set others have used, other landowners have used in Collier County. Now you want to shorten the process -- COMMISSIONER FIALA: No. COMMISSIONER HENNING: -- and get it into -- COMMISSIONER FIALA: All I want to do is do it right by having somebody completely tmbiased come in, Commissioner HenrJing, and make this detem1ination for us. Take it out of our hands entirely. To me, that -- you know, give it to somebody, I don't care, a retired judge up in Tallahassee, I don't care where he is, but let them make the decision, then we don't have to worry about that anymore. Whatever the decision is, then we abide by it. COMMISSIONER HENNING: Then we should do it for everybody. COMMISSIONER FIALA: Well, not everybody has an RLSA. COMMISSIONER HENNING: All right. COMMISSIONER FIALA: I don't -- . CHAIRMAN COYLE: Well, you know, this issue isn't as simple as anyone has presented it to be, either those who are for simple majority or those who are for a supermajority. It is, in my estimation, absolutely ludicrous that we should have a different voting requirement for an SSA than for an SRA. Makes Page 143 Agenda Item No. 12A January 11, 2011 Novemberf9l,g2ffi. (172 absolutely no sense at all. Couldn't possibly justify that. Had it been brought up at the time, I'm sure that people would have said they've got to be the same. You can't have them different -- So if they were established as the same when we approved the RLSA, didn't that supersede the 1967 law? So it makes no sense to me, quite frankly. And if we go through the process internally, we will be no further along than we are right now, because the county attorney has told us in absolutely no uncertain terms, he believes it should be a four-fifths. The staffhas essentially said the same thing, or at least they've been somewhat neutral on the issue. .' . So we ask for an official determination, and we spend another month or so, and what do we have? We have the county attorney saying the same thing; the staff saying the same thing. We're left in the same position trying to make sense of a set of circumstances that are nonsensical. So if you don't go to some method of resolving it, we're not going t k "'(... n-ro~~ ~""" ~t r"t.l,.........,. ,-0 ma e any PLOSH....:)., HI I , UA.ay. COMMISSIONER FIALA: Right. CHAIRMAN COYLE: But I don't know whether that's the best way to do it or not, quite frankly. And honestly, for the people who are concerned that this might do something to help Jackson Labs along, there is no chance on earth that Jackson Labs is going to proceed without an extensive legal battle. It's not going to happen. So this is not going to cut any comers with respect to that particular issue. So -- well, that's all I've got to say about it. Commissioner Coletta? COMMISSIONER COLETTA: Yes, briefly. Ijustwantto clarify one point that I think everybody's missing. There's this comparison everybody's trying to make with Jackson Lab and what we're doing here today with the RLSA. Page 144 Agenda Item No. 12A January 11, 2011 November ~,g28~ 572 Well, there is a connection, but the connection is just the opposite of what everybody thinks. These people here today are environmental groups, a lot of the landowners. They have nothing to do with Jackson Lab. They have everything to do with the RLSA. If Jackson Lab went forward and we went with the idea that it's four votes, we effect the whole outcome of the RSLA (sic) with that. So, you know, there's some motives here, but they're not devious motives. They're up front and they're honest. Ifit wasn't for Jackson Lab coming forward, probably the landowners at this point in time would have no reason to come forward, because there would be no challenge to the RSLA (sic), beginning and end. MR. P ASSIDOMO: Mr. Chairman, can I make just one observation. I think that -- a couple of interesting points to make. I'll do it in 30 seconds. CHAIRMAN COYLE: Okay. MR. P ASSIDOMO: The frrst is, there is no existing progress. If there was, we'd employ it. The county attorney has told you, you can't have an official interpretation of state law. You can't do it. Second is, I thought Commissioner Henning was right on the button. . He said, most judges don't have land use experience. Bingo. They do probate, they do criminal law, they do tort law, they do everything, but Mr. Klatzkow and I could fmd the finest land use former judge who's an ex- -- has a statewide expertise in that area. You can actually shop collectively to get the best expertise you can possibly conceive that you would never fmd going into a courtroom. And that's exactly why I think Commissioner Fiala's recommendation makes so much sense. Thank you. CHAIRMAN COYLE: Okay, thank you. Okay. We have a motion by Commissioner Fiala, second by Commissioner Coletta. Any further discussion on the motion? Yes, County Manager. I I I -! Page 145 __.__.1 Agenda Item No. 12A January 11, 2011 November 9':~a15f 72 MR.OCHS: May I just have some clarification on the motion. Initially I thought the motion was for the county manager to work with the attorneys for the Eastern Collier Property Owners -- COMMISSIONER FIALA: That's what I said~ MR.OCHS: -- but Mr. Passidomo just suggested, and I think more correctly, frankly, that he work with the county attorney to try to identify someone with legal expertise in land use. That frankly is not my area of expertise. I'll be happy to do it, if the board directs. COMMISSIONER FIALA: Leo, I thought you were an expert in everything. MR.OCHS: No, ma'am. Jack of all trades. Master of none. But whatever the board's pleasure is, but I think that argument make -- COMMISSIONER FIALA: Okay. That's the way it should be then, yeah. Let's just do that, okay. COMMISSIONER COLETTA: The second agrees. MR. OCHS: Is it binding arbitration; is that what we're talking about? "01\.n'1TSSTONER rT A T A- 117-11 ..1-._..'_ -wi-at I sal'd Lut v IV.uV l.l r lJ-\L : vvell, lHdl ~ r , u -- MR. P ASSIDOMO: If I might observe. I think you really want nonbinding arbitration. COMMISSIONER FIALA: Do you? MR. P ASSIDOMO: It's impossible to ascertain who could conceivably assert an interest, and if you had binding arbitration, you'd have to have everybody in front of you. I think what you're really looking for is removing the cloud of uncertainty from this process. You can go to court after that, that you have to have nonbinding arbitration. Go to court and reduce that to a court order, and then you've got law established. But the important thing right now, and I think that the landowners who don't have a dog in this fight were very clear about this, they need this cloud to be removed as quickly as possible, and that's -- we would ask that that be done on an expedited basis so that Page 146 Agenda Item No. 12A January 11, 2011 November ~gi815f 72 you know when you're going forward, and all the landowners lmow what the rules of the road are. COMMISSIONER FIALA: Okay. Thank you for clarifying that, because I don't understand too, too much about binding, nonbinding. So then I'll make sure that on the record it says that it will be nonbinding. COMMISSIONER HENNING: I have a question. CHAIRMAN COYLE: Okay. Commissioner Henning, go ahead. COMMISSIONER HENNING: Why aren't you asking our county attorney instead of-- COMMISSIONER FIALA: I didn't ask anything. He just -- he just offered his opinion, and I'm agreeing with him. COMMISSIONER HENNING: Okay. COMMISSIONER FIALA: Or was I -- I don't think I asked him a question, did I? COMMISSIONER HENNING: You asked a question. CO!illvlISSIONER FIALA: Dh, okay. COMMISSIONER HENNING: You got a response from the landowner's attorney. And you're okay with that, and I'm just asking, why aren't you getting an opinion from the county attorney that is -- that is the attorney for the Board of Commissioners? COMMISSIONER FIALA: Okay. Would you like to give me your opinion? MR. KLATZKOW: Well, I did. I don't think it came off -- I don't think I was -- it was an opinion that you really wanted at the end of the day. I asked Mr. Passidomo months ago to get a legal -- request for legal interpretation to get this issue to the board so we can get into a courtroom. That never happened, okay. Now, yes, you don't have the power to interpret a special act, but you do have the power to establish -- to interpret the RLSA. All right. Page 147 Agenda Item No. 12A January 11, 2011 November ~~~6fGf72 That didn't happen, so now we're left with a time crunch. I would prefer a declaratory judgment. Go right to court. Anybody who wants to join in can join in and you're right there. You want to go find a land use lawyer somewhere and put it to him, we can go that route. I don't think it's going to stretch out though, because I think that's getting challenged anyway. But that's fme. COMMISSIONER FIALA: You know, it's okay. I just fee that MR. KLA TZKOW: I'm okay with that motion, ma'am. COMMISSIONER FIALA: I just feel that -- okay. I just feel that I'm heading in the right direction, and I've got a couple other nods here that feel so too, so that's the way I want to go, but thank you for your comments. MR. KLATZKOW: Yeah. COMMISSIONER COLETTA: Call the question. CHAIRMAN COYLE: You have another question? C01\1MISSIONER COLETTA: I said call it. COlvll'vlISSIONER HEt.JNING: \Vhat is the motion? CHAIRMAN COYLE: The motion is to approve the selection of an arbitrator to consider the legal issues related to this voting requirement, and that's it. COMMISSIONER HENNING: Is it a non-declaratory or -- CHAIRMAN COYLE: Nonbinding. COMMISSIONER FIALA: Nonbinding. COMMISSIONER HENNING: -- or a declaratory? COMMISSIONER FIALA: I said legal determination. COMMISSIONER HENNING: Okay. Well, we want to give staff direction, and I think the issue is official interpretation, non -declaratory opinion or declaratory? CHAIRMAN COYLE: Well, that's -- county attorney? MR. KLATZKOW: As I understand it, you're asking for an opinion declaring respective rights of the parties. Page 148 Agenda Item No. 12A January 11, 2011 November ~9161 f172 COMMISSIONER HALAS: Exactly. MR. KLATZKOW: All right. And we will be bound by that. I don't know that the property owners are necessarily going to be bound by that, but we will be bound by that opinion. COMMISSIONER FIALA: But the determination is whether it's a majority vote-- MR. KLATZKOW: That's right, ma'am. COMMISSIONER FIALA: -- or a supermajority. MR. KLATZKOW: Yes, ma'am. ..COMMISSIONER FIALA: Okay, okay. C01\1M:ISSIONER HALAS: Bottom line. CHAIRMAN COYLE: Okay. All in favor, please signify by . saYIng aye. COMMISSIONER FIALA: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COYLE: Aye. COMMISSIONER COLETTA: Aye. CP.,AIRI\.1i\N COYLE: .tAJ1Y opposed, by like sign? COMMISSIONER HENNING: Aye. CHAIRMAN COYLE: Okay. It passes 4-1, with Commissioner Henning dissenting. Yeah. We're going to take a break now for ten minutes. We'll be back at 2:59. COMMISSIONER HENNING: What do we have left? What do we have left? MR; OCHS: We have 12A, sir, and then public comment and then communications from staff and commission. COMMISSIONER HENNING: Thank you. e A brief recess was had.) CHAIRMAN COYLE: Ladies and gentlemen, the Board of County Commissioner meeting is back in session. Where do we go from here, County'Manager? .J Page 149 Agenda Item No. 12A January 11, 2011 November '9:9201 f172 CHAIRMAN COYLE: Very well. Is there a motion? COMMISSIONER HALAS: Motion to approve. CHAIRMAN COYLE: Okay. Motion to approve continuing the legal action that you've specified -- COMMISSIONER FIALA: Second. CHAIRMAN COYLE: -- by Commissioner Halas, and seconded by Commissioner Fiala. Any further discussion? (No response.) CHAIRMAN. COYLE: All in favor, please signify by saying aye. COMMISSIONER FIALA: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN COYLE: Aye. COMMISSIONER COLETTA: Aye. COMMISSIONER HENNING: Aye. CHAIRMAN COYLE: Any opposed, by like sign? (No response.) CHAIRMAN COYLE: It passes unanimously. MR. WILLIAMS: Thank you, Commissioners. CHAIRMAN COYLE: Okay. Item #15 STAFF AND COMMISSION GENERAL COMMUNICATIONS MR.OCHS: Commissioners, that takes us to Item 15, staff and commission general communications. CHAIRMAN COYLE: All right, what do you have, Leo? MR. OCHS: Two brief items, Commissioners. First one has to do with the November 23rd legislative delegation hearing. We have one item as a staff that we're advised we need to Page 158 Agenda Item No. 12A January 11, 2011 November ~,g~6' fJ 72 than later. It's a very, very exciting organization to be able to belong to. And of course, not to mention the Florida Association of Counties where you made the meetings, I think, from the year one right on through, and you've been the director for the last how many years? COMMISSIONER HALAS: Four years. COMMISSIONER COLETTA: Four years, which is pretty remarkable. Thank you very much for your service, sir. I hope that in the future' I'll be able to call you up and have you mentor me as I move forward tP..rough this maze. COMMISSIONER HALAS:.._..Well, thank you. CHAIRMAN COYLE: Just remember to keep calling him sir. COMMISSIONER COLETTA: Well, I have to. He's a taxpayer. CHAIRMAN COYLE: Yes, I know. Commissioner Henning? COMMISSIONER HENNING: This process to figure out a supermajority versus simple majority, some -- through a judge or mediator or whatever you 'wcu,t to call it, is the public going to be able to participate in that, or is it going to be -- is it going to be open to the sunshine? Do you have a problem with that? MR. KLATZKOW: I'll take board direction on that. COMMISSIONER FIALA: It depends. If they get a -- I mean, you know, off the cuff -- and I would have no idea. But if they find a judge that's in Tallahassee, a Supreme Court -- Florida Supreme Court judge who's in Tallahassee, then it would be a little -- and I don't know that they will. You know, maybe the judge they'll find in Collier, or maybe they'll find it in Charlotte County. I don't know where they're going to find this judge that has land use experience, but -- you know, I don't know if the public can go there, but, you know -- I don't even -- I don't know what the parameters are, so I would hate to comment on it one way or another. I think we should know where it's going to be first. I -I Page 169 - Agenda Item No. 12A January 11, 2011 N ovember ~9!{jl (J 72 CHAIRMAN COYLE: If I could have ask a question, maybe we might get a clearer answer. To what extent will this vary from a certiorari hearing? MR. KLATZKOW: !tIS more akin to a -- this is more akin to a private arbitration. We have these all the time on the eminent domains. They're not really public. I could make this public if that's the will of the board and the public could participate, but itls -- CHAIRMAN COYLE: Well, I guess what I'm -- what I'm trying to determine is, is the judge going to base this decision on an examination of the legal record, the ordinances ,Of resolutions, the statutes that exist and try to make some interpretation after listening to arguments from you and Mr. Passidomo, or is he likely to take testimony from individuals? MR. KLA TZKOW: I would guess that one of the issues is going to be what the intent was, and there may very well be testimony. I donlt know. This is a process, sir, I've never participated in before. CHAIRMAN COYLE: Okay. I havenlt either. I donlt want to participate in this one either, but nevertheless. Why don't we -- when we get to the point of selecting somebody, can you inquire as to the manner in which this could be conducted to achieve the most impartial decision and then inform the board about that, and then we could make some decisions? MR. KLATZKOW: I could do that, sir. My only question is time. You don't meet again until -- CHAIRMAN COYLE: The 14th, yeah. MR. KLATZKOW: -- the 14th. COMMISSIONER FIALA: And they expect to have an answer by then, don't they? MR. KLATZKOW: Well, they're hopeful. COMMISSIONER HENNING: Yeah. They want to get this settled before Jackson Lab gets voted on. MR. KLATZKOW: They're hoping for that. If you direct me to Page 170 Agenda Item No. 12A January 11, 2011 November ~g~fi\ ~ 72 make this public -- COMMISSIONER HENNING: That's what it's all about. MR. KLATZKOW: -- I'll make sure that it's open to the public. CHAIRMAN COYLE: Well, if you make it public so that the public can at least see what's going on would be -- would be an improvement. Doesn't necessarily mean the public gets to participate in the process -- MR. KLATZKOW: That's right. CHAIRMAN COYLE: -- by providing testimony. But there should be no reason that they couldn't conduct the hearing and.listen to the testimony from the principals involved and doing that in the public. I don't see why that wouldn't work. MR. KLATZKOW: Okay. We'll put out a notice and we'll conduct it in the sunshine. CHAIRMAN COYLE: Yeah. CO:M1vfISSIONER FIALA: Say, for instance, they do it up in Talla.hassee, for instance -- and I'm just choosing that because the Florida Supreme Court, would they then televise it like to our local television something or anothers or-- MR. KLATZKOW: We're going to have it held here, ma'am. CHAIRMAN COYLE: Yeah, you have to do that. It would just be his travel expenses. MR. KLATZKOW: We'd have it held here. !t's a lot cheaper for us to. fly one person down here than everybody to fly up there. COMMISSIONER COLETTA: Well, that or we could also request that they go to a facility that they have the ability to be able to ,do video streaming so everybody could receive it on their computers. And another thing we could do is that we could have our staff go there from public relations and video it. Commissioner Coyle's saying no. They can use his travel budget to do it. MR. KLATZKOW: I mean, my thought was, I've got a very Page 171 i ! .j Agenda Item No. 12A January 11, 2011 NovemberP9;2ij1CO 72 large conference room up there upstairs. It holds quite a few people, and I can do it upstairs, and the public will be welcome. CO:MMISSIONER COLETTA: Why not right here? MR. KLATZKOW: You could do it here if you want, sir. This IS -- , COMl\1ISSIONER COLETTA: Then you could put it over the government channel. CHAIRMAN COYLE: It depends upon the availability of this room. COMMISSIONER COLETTA: And whether the judge is willing to come here. CHAIRMAN COYLE: That's right. But I think a judge, if you're going to pay the judgels travel expense, then he ought to come here, right? COMMISSIONER FIALA: Well, I have a question also, as long as we're talking about this. Would the judge then -- say, for instance, you select a judge tomorrow, do you then send up all of our infoll11ation and then it's his obligation to read all of this stuff or then -- or does he meet with you and with them and you talk about it and then bring backup work; how does that work? MR. KLATZKOW: We're going to have to set up a procedure and parameters on this. COMMISSIONER FIALA: Okay. MR. KLATZKOW: I guess my question is, do we want this televised if possible, or just open to the public? CHAIRMAN COYLE: I think it should be open to the public. If people want to come in and sit down and watch it from the audience, they can. And we'll televise it while it's in progress, and broadcast it on our television, just like we do with the Planning Commission and __ MR. KLATZKOW: Okay. CHAIRMAN COYLE: -- Board of County Commissioners meetings and everything else. Page 1 72 Agenda Item No. 12A January 11, 2011 Novembet9;2ijf672 MR. KLATZKOW: Okay. CHAIRMAN COYLE: Right? Does that make everybody happy? COMMISSIONER HALAS: Yep. COMMISSIONER HENNING: Yeah, I'm not quite done. So you're going to allow the public to view but not allow the landowners to participate? MR. KLA TZKOW: You know, the judge is -- whoever we retain, the judge is going to have to make these decisions. And as far as -- COMrvIISSIONER HENNING: Because you got -- I mean, you got -- you got 400,000 landowners in Collier County. MR. KLATZKOW: The judge ultimately is going to have to make the determination what he deems relevant testimony and what he doesnlt deem relevant testimony. Again, sir, I haven't been down this rodeo before. COMMISSIONER FIALA: I think we're asking questions kind of prematurely before we even know what this judge requires or -- COMMISSIONER HENNING: Well, that's the whole declaratory and non-declaratory. I was trying to get that -- that answered, but nobody wanted to answer that on whether they wanted a public process or a private process. Now, the attorney for the landowners wanted a private process, obviously. So I was just wondering what the board's wishes were. MR. KLATZKOW: Well, my understanding, it will be a public process, televised if possible. COMMISSIONER FIALA: Why don't we find out what the judge wants. CHAIRMAN COYLE: Yeah. We will have to do that, but I don't know why a judge would be opposed to -- MR. KLATZKOW: You don't see a lot of televised hearings before judges, sir. They hate that. I -' Page 173 Agenda Item No, 12A January 11, 2011 PRge 71 of. 72 November 'J, 201 u CHAIRMAN COYLE: Really? Well, letls talk with the judge, and then talk with each of the commissioners individually. MR KLATZKOW: Yes, sir. CHAIRMAN COYLE: Okay. And keep all the commissioners informed. And if there's an important issue, we'll call an emergency meeting and see if we can't deal with it. MR. KLATZKOW: Yes, sir. CHAIRMAN COYLE: Okay. Okay. Anybody have anything else? COMM:ISSIONER HALAS: I have one other item I'd like to -- COMMISSIONER FIALA: But Fred hasn't -- I mean Commissioner Coyle hasn't -- CHAIRMAN COYLE: Well, I was just going to make an announcement that we're going to be roasting Commissioner Halas on Friday of this week, aren't we? COMMISSIONER HALAS: I don't mow. CHAIRMAN COYLE: I don't know either. Iv1R. OCHS: Yep. MR. MITCHELL: Yes, sir, we are. CHAIRMAN COYLE: Is that -- was that supposed to be a surprise? No? MR. MITCHELL: No. Roasting's the operative word. CHAIRMAN COYLE: Oh, he wasn't told it was a roast? COMMISSIONER HALAS: It's getting pretty close to Thanksgiving. CHAIRMAN COYLE: Oh, I see. Okay. Well, no. There will be a party for -- MR. MITCHELL: No, because I've already arranged for separate transport for Mrs. Halas should he be concerned about some of the information she's supplied us with. CHAIRMAN COYLE: I see, I see. Okay. \Vhat time is it? COMMISSIONER HALAS: Two. Page 174 Agenda Item No. 12A , A Page 72 of 72 In Re: Collier County Arbitration I....... ,= ., - .~ f?~: "_-:) .,- ...- --. .0 STIPULATION AND ORDER ~,1. r: ..j";'" ." j ( The issue of "whether three or four votes are required to create or ~mend.:~J '~ . , ,fJ :.~ .-._~ a Stewardship Receiving Area in a Development of Regional Impact in the RurabLandf1 f; '::.~ ......~ 1. Stewardship AreaD will be arbitrated on Saturday, December 11. 2010 beginning at 9:00 Kenneth B. Bell a a.m. at the Chambers of the Collier County Commissioners with J:ormer Supreme Court. ..t..o former circuit: judge 'antl. justice on Florida' 5 Supreme Court who has returned to the. 'Vr'Ju.dge.Kenoeth-BetI presiding as Arbitrator. If a second day is needed, the arbitration private practice of la.wt .' ' will resume on Monday, December 13, 2010, at 9:00 a.m. 2. WItness and exhibit lists are due on or before November 30,2010. 3. Arbitration memoranda are due on or before December 6, 2010. 4. The Arbitrator will issue.a written ruling on or before December 14, 2010. (as well as per diem travel expenses) 5. The Arbitrator's fees of $350.00 per hou'rlshall be split equally. with the Board of Collier County Commissioners paying 50% and the Eastern Collier Property Owners paying 50%. JJ~ L. ~.=-' Edward K. Cheffy, Cheffy Passidomo, P.A ' for the Eastern Collier Property Owners ORDER The Stipulations set forth above are adopted as an Order of the A.rbit~ ~/).~ Arbitrator . 862-0006 "141