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Agenda 02/24/2009 Item #17C Agenda Item No. 17C February 24, 2009 Page 1 of 10 EXECUTIVE SUMMARY Recommendation that the Board of County Commissioners adopts an Ordinance amending Ordinance No. 2002-27, as amended, which created the Pelican Bay Municipal Service Taxing and Benefit Unit, by providing for waiver of mail ballot requirements in the event the number of nominees for appointment to the Pelican Bay Services Division Board in a particular category does not exceed the number of open positions for that category. OBJECTIVE: That the Board of County Commissioners (Board) adopts the attached Ordinance amending Ordinance No, 2002-27, as amended, as it relates to appointments to the Pelican Bay Services Division Board by providing for waiver of mail ballot requirements when the number of nominees in a particular category does not exceed the number of open positions in that category, CONSIDERATIONS: On May 28, 2002, the Board, working with the Pelican Bay Municipal Service Taxing and Benefit Unit Advisory Committee residential and commercial property owners of Pelican Bay, adopted Collier County Ordinance No, 2002-27, which in part created the Pelican Bay Municipal Service Taxing and Benefit Unit Advisory Committee, Through the adoption of Ordinance No, 2006-05, this committee was renamed the Pelican Bay Services Division Board (the "PBSD Board"), Section Eight (C) of Ordinance No, 2002-27, as amended, provides that nominees for appointment to the PBSD Board shall be included on a mail ballot to be sent to all of the non- government property owners of Pelican Bay, with the nominee(s) receiving a plurality of the ballots cast in each category of membership forwarded to the Board for appointment. The Ordinance, however, is silent as to whether this balloting is necessary when the number of nominees for a particular category of membership does not exceed the number of open positions, The costs for conducting such a mail ballot can exceed $6,000, This issue was discussed at the January 13, 2009 Regular Meeting, and the Board directed the County Attorney to draft an amendment to Ordinance No, 2002-27, as amended, to provide for waiver of mail ballot requirements in the event the number of nominees in a particular category does not exceed the number of open positions in that category, The County Attorney then prepared this proposed amendment which was vetted by both a subcommittee of the PBSD Board, and then the PBSD Board as a whole, There was no objection to this proposed change, FISCAL IMPACT: None, LEGAL CONSIDERATIONS: The proposed Ordinance was drafted by the County Attorney, was duly advertised, and is legally sufficient for Board action, This is a non-quasi judicial matter requiring simple majority vote, JAK GROWTH MANAGEMENT IMPACT: None, RECOMMENDATION: That the Board of County Commissioners adopts the attached Ordinance amending Ordinance No, 2002-27, as amended, as it relates to the Pelican Bay Services Division Board by providing for waiver of mail ballot requirements when the number of nominees in a particular category does not exceed the number of open positions in that category, ,-- Prepared Bv: Jeffrey A. Klatzkow, County Attorney Page 1 of 1 Agenda Ilem No. 17C February 24, 2009 Page 2 of 10 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: Item Summary: 17C Recommendation that the Board of County Commissioners adopts an Ordinance amending Ordinance No, 2002-27, as amended, which created the Pelican Bay Municipal Service Taxing and Benefit Unit, by providing for waiver of mail ballot requirements in the event the number of nominees for appointment to the Pelican Bay Services Division Board in a particular category does not exceed the number of open positions for that category. Meeting Date: 2/24/2009 900:00 AM Prepared By Jeff Klatzkow Assistant County Attorney County Attorney Office Date County Attorney 2/10/20099:23:17 AM Approved By Jeff Klatzkow County Attorney Assistant County Attorney County Attorney Office Date 2/10120099:38 AM Approved By OMB Coordinator County Manager's Office OMS Coordinator Date Office of Management & Budget 2/10120092:35 PM Approved By Mark Isackson County Manager's Office Budget Analyst Office of Management & Budget Date 2/13/20093:47 PM Approved By James V. Mudd County Manager Date Board of County Commissioners County Manager's Office 2/13/2009 5;54 PM file://C :\Agenda Tesl\Export\ 124-F e bruary%2024, %202009\ 17, %20S UMMAR Y%20AGEN.., 2/18/2009 Agenda Item No, 17C February 24, 2009 Page 3 of 10 January 13, 2009 the county. I'm asking the board's permission to go On out there and look at these two or so properties that have availed themselves to see if I can determine if we can get a reasonable substitute -- pay a reasonable amount of money, get something that's suitable for the property appraiser and get out of this -- this very expensive rental agreement that we're in. At the time we did the rental agreement we didn't have any other -- we didn't have any other options. We were basically -- we were captive as far as that agreement is concerned. Well, things have changed with the community and that thing. So I'd just like the board's permission. I'd like to get three nods to go on out there and do that. Again, I won't commit the county to anything until I get the board's -- come back to the board and get that resolved. CHAIRMAN FIALA: Looks like you've got everybody nodding. MR. MUDD: Yes, ma'am. Okay. Next issue -- and I'm sorry I'm talking too long, but I've got to get some things resolved here real quick. CHAIRMAN FIALA: No, these are important. MR. MUDD: First of all is Pelican Bay Services Division. And let's go down the talking points real quick. This is n I want to say this is pretty much a no-brainer, but I've got to bring it to the board's attention because it's different than what the ordinance lays out. First of all, we advertised for the Pelican Bay Services Division Board On December 9th. The deadline for the applications were January 6th. Vacancies, four residential, one commercial. We received five residential, one commercial. One of the residentials have dropped. So you now have four residentials and one commercial. The cost for balloting to go on out there is over $6,000, and that's basically an estimate by Mr. Jay Cross from the Clerk's office, as far as the balloting process is concerned. Page 24 ] Agenda Item No, 17C February 24, 2009 Page 4 of 10 January 13, 2009 If the balloting process were to go forth, all five members would be appointed even if they only receive one vote each from the folks in Pelican Bay based on the ordinance that you have. There is currently no provision in the ordinance to waive the balloting process if we receive only the amount of applicants for the vacanCIes. Our recommendation is we request the county attorney to amend the ordinance to include a provision to waive this section of the ordinance if the applicants do not exceed the vacancies. We could send the applicants to the Pelican Bay Services Division Board for a recommendation for appointment. And this is just to save $6,000 for something that's not going to mean much. You've got the exact number of applicants as you have for the vacancies that you have. COMMISSIONER HALAS: I think that we -- hopefully we'll get approval by the board, but I think that's what we need to do is send this to the county attorney to change the ordinance whereby if there is the same amount of applicants as there are positions, then there's no sense wasting taxpayers' money of $6,000. CHAIRMAN FIALA: Now, does the Pelican Bay Services Division know of the recommendation? MS. FILSON: Yes. COMMISSIONER HALAS: Yes, they do. CHAIRMAN FIALA: Okay. MR. MUDD: If that's what the board desires, the county attorney to amend the ordinance in order to give us that provision so that we don't get ourselves in this Catch 22 in the future. What normally goes is you ballot if you've got more candidates than you've got positions to fill. In this particular case you've got the exact number of people that have applied for the vacancies that are out there. CHAIRMAN FIALA: Okay. Yes, Commissioner Henning? Page 242 Agenda Item No. 17C February 24, 2009 Page 5 of 10 January 13,2009 COMMISSIONER HENNING: Well, why don't Ijust make a motion that we direct the county attorney to amend the ordinance for this particular example and declare -- declare that there's not enough applicants and there's no need to go to ballot? COMMISSIONER HALAS: That's the motion. MR. MUDD: And we bring it back to the -- it will come back to the board and it will be advertised -- COMMISSIONER HALAS: Do you have a second on it? MR. MUDD: -- and everything else. CHAIRMAN FIALA: Yeah. Do we have a second? COMMISSIONER HALAS: Sure, whatever. CHAIRMAN FIALA: Okay. I've got a second also. Okay. All those in favor -- MS. FILSON: Who made the motion, Commissioner Halas? CHAIRMAN FIALA: Commissioner Henning made the motion, Commissioner Halas seconded the motion. All those in favor, signify by saying aye. COMMISSIONER COYLE: Aye. COMMISSIONER HALAS: Aye. CHAIRMAN FIALA: Aye. COMMISSIONER HENNING: Aye. COMMISSIONER COLETTA: Aye, CHAIRMAN FIALA: Opposed, like sign? (No response.) MR, MUDD: Commissioner, the next item I need to talk about-- and again, I don't mean to be a Grinch -- and this will be the last thing unless Commissioner Henning wants to talk about sawfish, okay? If you're not going to do it, I'll do it. COMMISSIONER HENNING: I'll do it. MR. MUDD: Okay. Thank you, sir, This has to do with Immokalee sign violations. I got a call from Fred Thomas just before Christmas and said, hey, your sign guy's out Page 243 ''",'''''''_"''''''"''''-.....''',,,<>'"'",_,,"',;c'.''" Agenda Item No. He February 24, 2009 Page 6 of 10 ORDINANCE NO. 2009-_ AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, AMENDING ORDINANCE NO. 2002-27, AS PREVIOUSLY AMENDED AND CODIFIED AS ARTICLE LXI OF CHAPTER 122 OF THE COLLIER COUNTY CODE OF LAWS AND ORDINANCES, PERTAINING TO THE PELICAN BAY SERVICES DIVISION BOARD, BY AMENDING SECTION EIGHT, RELATING TO THE COMPOSITION, NOMINATION AND APPOINTMENT TO THE BOARD BY REVISING THE BALLOTING REQUIREMENTS; PROVIDING FOR INCLUSION IN THE CODE OF LAWS AND ORDINANCES; AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on May 28, 2002, the Collier County Board of County Commissioners, (the "Board") working with the Pelican Bay Municipal Service Taxing and Benefit Unit Advisory Committee residential and commercial property owners of Pelican Bay, adopted Collier County Ordinance No, 2002-27 which in part created the Pelican Bay Municipal Service Taxing and Benefit Unit Advisory Committee; and WHEREAS, Section Eight (C) of this Ordinance provides that nommees for appointment of members to the Pelican Bay Services Division Board (the "PBSD Board"), as renamed by Ordinance No, 2006-05, shall be included on a mail ballot to be sent to all of the non-government property owners of Pelican Bay, with the nominee(s) receiving a plurality of the ballots cast in each category of membership forwarded to the Board for appointment; and WHEREAS, the Ordinance is silent as to whether it is necessary to conduct balloting when the number of nominees for a particular category of membership does not exceed the number of open positions; and WHEREAS, the Board desires to amend the Ordinance to clarify that there is no need to conduct an election when the number of nominees for a particular category does not exceed the number of open positions for that category, NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY, FLORIDA, that: Words Underlined are added; Words StFli€l: Thnmgll are deleted. Page I of5 Agenda Item No. 17C February 24, 2009 Page 7 of 10 SECTION ONE. Amendment to Section Eight of Collier County Ordinance No. 2002- 27, as amended: Section Eight is hereby amended to read as follows: SECTION EIGHT: Composition, nomination and appointment. A) The PBSD Board shall be representative of the residential, business and commercial interests and landowners in Pelican Bay, To that end, nine (9) of the PBSD Board members shall be representative of the residential interests within the Unit and two (2) of the PBSD Board members shall be representative of the commercial and business interests within the Unit. Members of the PBSD Board shall be appointed by and serve at the pleasure of the Board of County Commissioners pursuant to the procedure outlined herein, The nine (9) PBSD Board members representative of the residential interests within the Unit shall be residents of and qualified electors within the Unit. The two PBSD Board members representative of the commerciallbusiness/other interests shall be residents of and qualified electors in Collier County, Appointment of members to the PBSD Board shall be by resolution of the Board of County Commissioners, which resolution shall set forth the date of appointment and the term of office, Any member of the PBSD Board who ceases to meet the requisite qualifications during his or her term of office shall immediately advise the Board of County Commissioners in writing of such change in status, Upon the Board of County Commissioners receiving such notice, otherwise becoming aware of such vacancy, or if a vacancy occurs by any other process, the Board of County Commissioners shall declare the position to be vacant and shall promptly consider filling the vacant position with a pcrson from among the unsuccessful candidatc(s) vying for the position from the immediately preceding recommendatory balloting that receives recommendation from the PBSD Board, In the event the PBSD Board should fail to provide its recommendation to the Board of County Commissioners within twenty (20) days of the Board of County Commissioners being informed of "member's change in status," the Board of County Commissioners shall appoint the recent unsuccessful candidate that received the greatest number of votes among those unsuccessful candidates, In the event that there are no prior unsuccessful candidates available for appointment to the PBSD Board as provided herein, the vacant position shall be filled pursuant to the procedures of Collier County Ordinance No, 2001-55 including as may be amended or its successor ordinance, B) The terms and provisions of Section Six of Collier County Ordinance No, 2001-55, titled "PROCESS OF APPOINTMENT" shall not be applicable to appointment of members to the Unit. Words Underlined are added; Words ,aue" Through are deleted. Page 2 of5 ~"-""=-,..,""'~,;"""",,,,,' ,-.," '".'~,'''-, .~",",'- Agenda Item No. 17e February 24, 2009 Page 8 of 10 C) Upon adoption of this Ordinance, all of the members of the PBSD Board shall be appointed by, and all vacancies shall be filled by, the Board of County Commissioners, in the manner outlined herein, beginning with appointment to the PBSD Board of members to fill expiring memberships, All appointments of members to the PBSD Board shall be at the sole and complete discretion of the Board of County Commissioners, Provided however, that the Board of County Commissioners will take into consideration and give great weight to the recornmendations of the property owners within the Unit, utilizing the process outlined herein, Beginning with the second Tuesday in December, 2002, and each second Tuesday in December thereafter, the Board of County Commissioners shall publicly announce and advertise all current vacancy(ies) on the PBSD Board as of that date and shall request that applications be submitted to the Board of County Commissioners to fill the expiring term(s), All such applications shall be submitted in writing to the Board of County Commissioners no later than 28 days after said announcement as determined by the postmark on mailed applications and the time stamp on hand delivered applications, The name(s) of all appropriately qualified individuals timely submitted to the Board of County Commissioners shall be considered nominees for appointment to fill said expiring term(s), The Board of County Commissioners shall then publish said list of nominees and the positions on the PBSO Board for which they have been nominated (i,e" for the "residential interests" or for the "commerciallbusiness/other interests") and deliver a conformed copy thereof to the Clerk of Courts (the "Clerk"), The Clerk shall cause the name of each nominee as reported and published by the Board of County Commissioners to be included on the mail ballot, which ballot shall be mailed to all of the non-governmental property owners of the class (i.e, "Residential or Commercial/Business/Other") corresponding with the class for which the balloting is occurring ("Residential or Cornmercial/Business/Other") within the Unit no less than thirty (30) days prior to the balloting date, Said balloting date being set by the Board of County Commissioners, D) i, One (I) indivisible vote may be cast for each parcel in the Unit regardless of the number of persons who have an ownership interest in the property or the manner in which title is held by them, with each discrete parcel being those as listed by the Property Appraiser of Collier County and as approved by resolution of the Board of County Commissioners, Commercial/Business/Other owners cast ballots only for "Commercial/ Business/Other interest" positions and Residential owners cast ballots only for "Residential interest" positions, Only one ballot shall be counted for each parcel. If multiple ballots are cast for the same parcel by owners ofrecord, all ballots for that parcel will be deemed invalid, It is not the responsibility of the Clerk or the County Attorney to determine or select the ballot to be counted wherein multiple ballots for a parcel are cast as described herein, ii. For purposes of determining record title owners of property entitled to cast ballots, the listed record title owners of property as evidenced by the Collier County Property Appraiser's tax rolls as of sixty (60) days prior to the balloting date shall be utilized and deemed conclusive, Not less than forty-five (45) days prior to the balloting date, the Words Underlined are added; Words Struek Thfsligh are deleted. Page 3 of 5 Agenda Item No. 17C February 24, 2009 Page 9 of 10 Property Appraiser shall provide the Clerk and the Board of County Commissioners with the list of all parcels within the Unit, each parcel's identification number, the names of the property owners and their addresses, with said list designating each parcel as either residential/commercial/other (based upon the Property Appraiser's classification system), 111. The mail ballots shall be cast directly with the Clerk. At the plaee and time stated in the notice of the balloting published by the Board of County Commissioners, the Clerk, with the assistance of the County Attorney's Office, shall open and count the ballots, which have been returned to the Clerk as of the date and time stated in such notice of balloting, in a manner which the Clerk deems advisable and not inconsistent with the provisions of this Ordinance, Any member of the public shall be entitled to attend and observe, The determination of the Clerk and the County Attorney of validity of any ballot shall be final. iv, The nominee(s) receiving a plurality of the ballots cast in each category of membership shall be deemed the successful nominee(s) and their name(s) shall be reported and forwarded to the Board of County Commissioners, The Board of County Commissioners shall then, at their next regularly scheduled meeting, make the necessary appointments to fill said positions, E) The cost of the nomination and balloting process shall be borne by the Board of County Commissioners, F) Notwithstanding the foregoing. if the number of nominees for the position which thev have been nominated (i,e.. for the "residential interests" or for the "commerciallbusiness/other interests") does not exceed the number of open members for that position. then there shall be no balloting for such position, Instead. the list of nominees for the position shall simplv be forwarded to the Board of Countv Commissioners. who. following public hearing on the matter. will make the necessary appointments to fill said positions, SECTION TWO: INCLUSION IN THE CODE OF LAWS AND ORDINANCES. The provisions of this Ordinance shall become and be made a part of the Code of Laws and Ordinances of Collier County, Florida, The sections of the Ordinances may be renumbered or re-lettered to accomplish such, and the word "ordinance" may be changed to "section," "article," or any other appropriate word, SECTION THREE: CONFLICT AND SEVERABILITY. In the event this Ordinance conflicts with any other Ordinance of Collier County or other applicable law. the more restrictive shall apply, If any phrase or portion of this Ordinance is held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be Words Underlined are added; Words 8truel, Threubh are deleted. Page 4 of 5 Agenda Item No. He February 24, 2009 Page 10 of 10 deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portion, SECTION FOUR: EFFECTIVE DATE. This Ordinance shall take effect upon filing with the Department of State, PASSED AND DULY ADOPTED by the Board of County Commissioners of Collier County, Florida, this _ day of ,2009, ATTEST: DWIGHT E, BROCK, Clerk BOARD OF COUNTY COMMISSIONERS COLLIER COUNTY, FLORIDA , Deputy Clerk By: DONNA FIALA, Chairman By: Approved as to form and Ie I suffi 'ency: Words Underlined are added; Words Simek ThreHgh are deteted, Page 5 of 5