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BCC Minutes 10/14-15/2008 Closed Session (#12A-Hussey)Email From: BradleyNancy To: Patricia L. Morgan CC: Greene, Colleen ; Colli, Marian Subject: RE: Hussey Mandates Sent: 3/1 /2017 3:26:54 PM (a Attachments may contain viruses that are harmful to your computer. Attachments may not displav correctly. #_; image001 Jpg (2Kb) � ] image002.gif (4Kb) 'b1 image003.png (15Kb) ~J image004.png (18Kb) tl image005.jpg (2Kb) Thank you Trish O Nancy Bradley, Legal Assistant/Paralegal Collier County Attorney's Office 3299 East Tamiami Trail, Suite 800 Naples, FL 34112 Telephone: (239) 252-8400 Facsimile: (239) 774-0225 nancykradISy@,OlHergov.net PREPARED IN ANTICIPATION OF LITIGATION, REFLECTS MENTAL IMPRESSIONS, LITIGATION STRATEGIES AND LEGAL THEORIES AND IS EXEMPT FROM PUBLIC RECORDS DISCLOSURE PURSUANT TO § 119.071(1)(d), FLA. STAT. THIS MESSAGE IS INTENDED FOR THE RECIPIENT ONLY. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE SENDER IMMEDIATELY. USE OR DISSEMINATION BY ANY PERSON OTHER THAN THE INTENDED RECIPIENT IS STRICTLY PROHIBITED. From: Patricia L. Morgan [mailto:patricia.morgan@collierclerk.com] Sent: Wednesday, March 01, 2017 3:26 PM To: BradleyNancy Cc: GreeneColleen; ColliMarian Subject: RE: Hussey Mandates Nancy, Per this notification from the Collier County Attorney's Office, the closed session transcripts from the associated Hussey cases will now be placed into the Board's records. Thank you, Trish Morgan, BMR Director Clerk to the Board £t VAB Board Minutes £t Records Dept. 239-252-8399 Phone 239-252-8408 Fax From: BradleyNancy [mailto:NancyBradley-@colliergov.net] Sent: Wednesday, March 01, 2017 3:19 PM To: Patricia L. Morgan <patricia.morgan@ collierclerk.com> Cc: Greene, Colleen <COIIeenGreene@colliergov.net>; Colli, Marian <MarianColli@colliergov.net> Subject: FW: Hussey Mandates Hi Trish — on behalf of Colleen M. Greene, Esq., any BCC closed session transcripts for the Hussey cases can be unsealed now, as attached Mandates have been issued by the 2nd DCA. Nancy Bradley, Legal Assistant/Paralegal Collier County Attorney's Office 3299 East Tamiami Trail, Suite 800 Naples, FL 34112 Telephone: (239) 252-8400 Facsimile: (239) 774-0225 Dan cybradley-@ oc lliergov.net PREPARED IN ANTICIPATION OF LITIGATION, REFLECTS MENTAL IMPRESSIONS, LITIGATION STRATEGIES AND LEGAL THEORIES AND IS EXEMPT FROM PUBLIC RECORDS DISCLOSURE PURSUANT TO g 119.071(l)(d), FLA. STAT. THIS MESSAGE IS INTENDED FOR THE RECIPIENT ONLY. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE SENDER IMMEDIATELY. USE OR DISSEMINATION BY ANY PERSON OTHER THAN THE INTENDED RECIPIENT IS STRICTLY PROHIBITED. From: Gregory N. Woods [mailto:GWoods@wwmrglaw.com] Sent: Wednesday, March 01, 2017 3:11 PM To: GreeneColleen; BradleyNancy Subject: Hussey Mandates For our file. Best regards, Gregory N. Woods Board Certified Civil Trial Lawyer Board Certified Business Litigation Lawyer Woods Weidenmiller Michetti Rudnick & Galbraith, PLLC 9045 Strada Stell Court, Suite 400 Naples, FL 34109 Phone:239.325.4070 Fax: 239.325.4080 gwoods@wwmrglaw.com http://www.goldfarl c cid:image( content/themes/a �cid:Imagei http://www.maryvilleinji superlawyers.gif http://www.gmlaw.com/wp- content/uploads/2013/05/AV- The information contained in this transmission may be attorney/client privileged and confidential. It is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately by e-mail or by telephone collect at 239.325.4070 and delete the original message. Thank you. Under Florida Law, e-mail addresses are public records. If you do not want your e-mail address released in response to a public records request, do not send electronic mail to this entity. Instead, contact this office by telephone or in writing. M A N D A T E from DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA SECOND DISTRICT THIS CAUSE HAVING BEEN BROUGHT TO THIS COURT BY APPEAL, AND AFTER DUE CONSIDERATION THE COURT HAVING ISSUED ITS OPINION; YOU ARE HEREBY COMMANDED THAT SUCH FURTHER PROCEEDINGS BE HAD IN SAID CAUSE, IF REQUIRED, IN ACCORDANCE WITH THE OPINION OF THIS COURT ATTACHED HERETO AND INCORPORATED AS PART OF THIS ORDER, AND WITH THE RULES OF PROCEDURE AND LAWS OF THE STATE OF FLORIDA. WITNESS THE HONORABLE CRAIG C. VILLANTI CHIEF JUDGE OF THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, SECOND DISTRICT, AND THE SEAL OF THE SAID COURT AT LAKELAND, FLORIDA ON THIS DAY, DATE: February 27, 2017 SECOND DCA CASE NO. 2D16-1714 COUNTY OF ORIGIN: Collier LOWER TRIBUNAL CASE NO. 08-CA-6933 CASE STYLE: FLORIDA WILDLIFE v. FRANCIS D. HUSSEY, JR., ET FEDERATION, ET AL AL Ma Elizabeth Kuenzel Clerk cc: (Without Attached Opinion) Margaret L. Cooper, Esq. John G. Vega, Esq. Rachel A. Kerlek, Esq. Gregory N. Woods, Esq. Colleen M. Greene, Esq. Thomas W. Reese, Esq. M A N D A T E from DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA SECOND DISTRICT THIS CAUSE HAVING BEEN BROUGHT TO THIS COURT BY APPEAL, AND AFTER DUE CONSIDERATION THE COURT HAVING ISSUED ITS OPINION; YOU ARE HEREBY COMMANDED THAT SUCH FURTHER PROCEEDINGS BE HAD IN SAID CAUSE, IF REQUIRED, IN ACCORDANCE WITH THE OPINION OF THIS COURT ATTACHED HERETO AND INCORPORATED AS PART OF THIS ORDER, AND WITH THE RULES OF PROCEDURE AND LAWS OF THE STATE OF FLORIDA. WITNESS THE HONORABLE CRAIG C. VILLANTI CHIEF JUDGE OF THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, SECOND DISTRICT, AND THE SEAL OF THE SAID COURT AT LAKELAND, FLORIDA ON THIS DAY. DATE: February 27, 2017 SECOND DCA CASE NO. 2D16-1869 COUNTY OF ORIGIN: Collier LOWER TRIBUNAL CASE NO. 08-CA-7025 CASE STYLE: FLORIDA WILDLIFE v. SEAN HUSSEY, ET AL., FEDERATION Ma Elizabeth Kuenzel Clerk cc: (Without Attached Opinion) John G. Vega, Esq. Rachel A. Kerlek, Esq. Margaret L. Cooper, Esq. Thomas W. Reese, Esq. Colleen M. Greene, Esq. Gregory N. Woods, Esq. October 14, 2008 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, October 14, 2008 CLOSED SESSION Item # 12A - Hussey 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 district as has been created according to law and having conducted business herein, met on this date at 12:00 p.m., in CLOSED ATTORNEY -CLIENT SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Tom Henning Donna Fiala Jim Coletta Fred Coyle Frank Halas ALSO PRESENT: Jim Mudd, County Manager Jeffrey A. Klatzkow, County Attorney Jacqueline Hubbard, Assistant County Attorney Page 1 — Item # 12A (Hussey) October 14, 2008 Item # 12A THE BOARD IN EXECUTIVE SESSION DISCUSSED: SETTLEMENT NEGOTIATIONS AND STRATEGY RELATED TO LITIGATION EXPENDITURES IN THE PENDING LITIGATION CASE OF FRANCIS D. HUSSEY, JR. AND MARY P. HUSSEY AND WINCHESTER LAKES CORPORATION V. COLLIER COUNTY, THE HONORABLE CHARLIE GRIST, AND THE FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, CASE NO. 08-6933-CA, NOW PENDING IN THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA. — CLOSED SESSION CHAIRMAN HENNING: Okay. You guys ready to go? We're here today to listen to our county attorney to discuss the Hussey lawsuit. MR. KLATZKOW: Yeah. The Husseys have brought a Bert Harris suit against the county. Under the statute we're required to respond to them within a statutory period of time, which we're still in as far as an offer of settlement. The claim that it's wide as (sic) this for $90 million. What they're basically saying is that when they bought the property, they had the ability at that time to mine rock. Because of the changes in the Comp. Plan and the Land Development Code, they no longer have the legal ability to mine rock and that there's rock in the ground, after costs, which is valued in excess of $90 million. We have already filed a -- papers with the court basically trying to get this thrown out. The arguments we're making is that they don't make the statute of limitations because of these Comp. Plan changes we made so many years ago and that their notice of claim is legally sufficient (sic). We also have a couple of other arguments in there. We think we have a chance to get this beat on procedural grounds Page 2 — Item # 12A (Hussey) October 14, 2008 so it never gets tried. What I will tell you is that sometimes courts are reluctant to grant summary judgment on procedural grounds. They'll often want to try a case, get it up to the second circuit and let the second circuit worry about the legal niceties. That's not uncommon. If that happens and we lose the procedural ability to get this knocked out, prevent a trial, I will be coming back to you and it will be my recommendation to settle this case because it's not, in my opinion, worth it for the county to be fighting over this when at the end of the day it was the state that required these changes to be made. This was -- this change in the Comp. Plan, the Land Development Code, is mandated to us by the State of Florida. It wasn't a decision of the Board of County Commissioners. We have two approaches here. If you just want to get rid of the entire claim right now, you can instruct me and I will get ahold of the opposing counsel on this, which is Margaret Cooper, ask her to extend the period of settlement negotiations and see if we can settle it out. The end result would be that the county would say, okay, you can mine rock here. Now the state may want to get involved in this and the environmentalists may want to get involved in this, but we may be able to get out. The other approach to take is to tell me to tell them that at this point we have no interest in settling this matter and see how we go on the procedural moves that we've made, see if we can't get this knocked out without a trial. I've already been contacted by -- MS. HUBBARD: Thomas Reese, the wildlife -- the Florida Wildlife Federation and the Collier County Audubon Society. MR. KLATZKOW: Yeah. And they want to join this suit and the fight. I'm not entirely sure that our best interests and their best interests entirely match all the time on this, but they want to join in on this suit. It is my intention to lay this all at the feet at the state in any event and to claim that any monies that we might owe on this should be that Page 3 — Item # 12A (Hussey) October 14, 2008 of the State of Florida and not us. This was their idea to put this stuff into the preservation status. COMMISSIONER COYLE: How do we do that? How do we lay it at the state? MR. KLATZKOW: They're already a party. We will file a counterclaim against the state. MS. HUBBARD: Well -- correct. MR. KLATZKOW: Yeah. I don't see any point in being buddy -buddy with the state on this one at all. I mean, I'd just as soon put a little pressure on them so that they're amenable to settling it. I want their dollars at risk. CHAIRMAN HENNING: Any other questions, comments? MR. KLATZKOW: And that's just an overview. Jackie's got more particulars on this one, but that's just a broad overview, if you have any questions. CHAIRMAN HENNING: Jacqueline? MS. HUBBARD: We have to make a decision whether you wish to make an offer to the property owner. I'll tell you that thus far we have filed a motion to dismiss the complaint on some procedural grounds. The Department of Community Affairs has filed a motion to dismiss the complaint -- they're also a party -- for failure to state a cause of action against them, and Governor Charlie Crist has also filed a motion to dismiss for failure to state a cause of action. The most immediate thing for your input at this time is whether or not you wish to make any kind of offer to the property owner, and I think Jeff set that out. Either you do at this point or you don't. We think the $90 million is probably high. We have an appraiser looking at that issue. We haven't had an opportunity to investigate exactly what is going on adjacent to the property, but we understand that there may be some mining nearby. So if you don't wish to make an offer, that's up to you. If you decide not to, we are going to proceed to set the motions to dismiss Page 4 — Item # 12A (Hussey) October 14, 2008 before the trial judge and get some kind of ruling. And if it is dismissed, it may not be dismissed with prejudice, as you know. It may be dismissed to allow them to re -file it. We don't really know. In any event, prior to proceeding any further, I need to get directions from the board whether you wish to make any kind of offer to them. COMMISSIONER COYLE: I vote no for an offer of settlement. COMMISSIONER HALAS: Me too. COMMISSIONER FIALA: Me too. MR. KLATZKOW: We understand. We're just discussing it. COMMISSIONER COYLE: It's just an expression of intent. MS. HUBBARD: The actual -- that will be out when you go back into session. COMMISSIONER COLETTA: Okay. So of the two, settlement or to be able to go to court and say, okay, they didn't comply with what they were supposed to do as far as due process. MS. HUBBARD: Right. We're going to try that first, and we still have the motion for summary judgment later on if -- after discovery. MR. KLATZKOW: You can direct us that at this point in time you have no desire to settle this matter and that we could proceed to defend it vigorously. CHAIRMAN HENNING: Can we -- when we go back in there, can we say, defend this action vigorously, but if there's any -- not saying this on the dais -- but if the judge says -- dismisses our motion to dismiss, can -- will you come back to us and say -- MR. KLATZKOW: Yes. This is going to be, along with the clerk's case, the major case in this office. CHAIRMAN HENNING: Okay. MR. KLATZKOW: But -- although the clerk's case has a lot of aggravation involved in it, this case is a potential for a lot of dollars. I mean a lot of dollars. I mean, I know Jacqueline doesn't think it's a Page 5 — Item # 12A (Hussey) October 14, 2008 $90-million case. I keep telling her, well, okay. It's a $40-million case. It's a lot of dollars, I mean, however you cut it. MS. HUBBARD: Right. CHAIRMAN HENNING: Okay. MR. KLATZKOW: So, you know. CHAIRMAN HENNING: And furthermore, I don't want the environmentalists involved in this. This is a decision that the board made. You know, they're just going to muddy the waters and drag us into it even more. MS. HUBBARD: Okay. That is not a decision that we're asking the board to make at this closed session, although that does deal with our -- the way we proceed. We have been asked whether or not two environmental groups may join the lawsuit, intervene in the lawsuit, without our objection. And we did convey to Attorney Thomas Reese that we had no objection to Florida -- the Florida Wildlife Federation and the Collier County Audubon Society coming into the lawsuit. MR. KLATZKOW: Yeah. And the reasons there's no objection is, one, they were going to get it anyway, and you don't fight over something that you know you're going to lose. And then two, at the end of the day, I may want to extract a couple of shekels out of their hides. COMMISSIONER COLETTA: Say again. MR. KLATZKOW: I may want to see if they might -- if at the end of the day we're going to settle this case, okay, I want to see if I can get some monetary compensation from them. I mean, if they want this preserved so badly, maybe they'll kick in some money for it. COMMISSIONER COLETTA: They were the driving forces that got us to this point. MR. KLATZKOW: That's right. CHAIRMAN HENNING: You might as well forget that. I mean, they always want everything -- Page 6 — Item # 12A (Hussey) October 14, 2008 MR. KLATZKOW: And they'll never give anything. CHAIRMAN HENNING: -- and they never want to give up anything. MR. KLATZKOW: That's right. MS. HUBBARD: Well, at least they're coming in on -- you know, they're intervening and they are opposing the plaintiffs. So to that extent, it's not a negative at this point. MR. KLATZKOW: We're not going to necessarily work hand -in -glove with them. COMMISSIONER COYLE: At what point do we lose the right to just let them mine the property rather than pay them any money, other than the legal fees? MR. KLATZKOW: If you don't settle this right -- right now we have that right to sit down and negotiate a deal with them where we change our Comp. Plan, we change our LDRs, and we let them mine, okay, but that -- that point is over in two weeks. COMMISSIONER COYLE: So you're telling me that if we get deeper into this case and we see that we might lose, we can't propose to them -- MR. KLATZKOW: We can propose to them. They don't have to accept it. COMMISSIONER COYLE: All right. So they can demand money. MR. KLATZKOW: That's right. COMMISSIONER COYLE: And we can say to them -- we can say to them, well, we're not going to pay that kind of money so we'll keep fighting. So it's likely to come out less than what they want anyway. MS. HUBBARD: If at all, right. MR. KLATZKOW: And obviously it depends on the economy, because right now those mining rights are worth nothing. COMMISSIONER COYLE: Not that much, yeah. Page 7 — Item # 12A (Hussey) October 14, 2008 MR. KLATZKOW: All right. Ten years from now those mining rights might be considerable because as you know, they may be shutting down the mine in Miami -Dade. COMMISSIONER COYLE: Can they increase the value of theirs as the years go by? MR. KLATZKOW: As the years go by, they will increase -- it depends on the market. They may be able to increase the value of their claim, yes. MS. HUBBARD: We are taking the position -- that's one of the differences that we have with them. We are taking the position that the date of -- that their property was affected was the date the ordinance went into effect, which was 2003. MR. KLATZKOW: See, they have one year to file a notice of claim under Bert Harris after their property was negatively affected. COMMISSIONER HALAS: And they didn't do it? MR. KLATZKOW: They didn't do it. COMMISSIONER HALAS: They didn't take any initiative whatsoever? MR. KLATZKOW: They didn't do it, all right. Now, you've got four years after you file your notice of claim to file the actual Bert Harris claim. What they did was they waited until three months ago to file their notice of claim, and then they filed a complaint within the 90-day statutory period of time. Now, I don't know why they waited. But from a procedural standpoint, they have a problem. COMMISSIONER COYLE: But we can't allow them -- we can't settle now and allow them to mine because DCA has said we can't do that. MR. KLATZKOW: Well, we might be able to get ourselves out of this saying, okay, we will initiate the changes to the Comp. Plan and the LDC and then let DCA say, no, you can't do that and then throw it at their feet. Page 8 — Item # 12A (Hussey) October 14, 2008 COMMISSIONER COYLE: Now, when do we lose the options to do that? MS. HUBBARD: We don't lose the option. MR. KLATZKOW: We never lose the option to do that. We lose the right to do it now. Right now we have the ability to sit down with them and change our Comp. Plan and our LDRs. COMMISSIONER COYLE: We can't do that six months -- MR. KLATZKOW: We can do that, we can do that, but at that point in time they can say, no, we're not interested. We just want money. I mean, if the market's that -- it could get to the -- look, it could get to the point where the market's so bad, all right, that they are figuring out that they've got a bigger value in the lawsuit than they do with the rock. Assuming the market turns around, you know, they'll want to mine the rock. COMMISSIONER COLETTA: If we take the Conservancy and the Audubon in, they'll probably -- if they're partners of ours, they're never going to agree to something like that. MR. KLATZKOW: Well, they're not going to be partners of ours. COMMISSIONER HALAS: They're not going to be partners. They'll be separate. MR. KLATZKOW: Yeah, they're separate. COMMISSIONER FIALA: What did you say before about Miami -Dade shutting down their mines? MR. KLATZKOW: A lot of the rock that DOT uses comes out of Miami -Dade. And my understanding is those mines are going to be shutting down because they're so close to the Everglades, which is going to make our rock that much more valuable. CHAIRMAN HENNING: Any further discussion before we recess this closed -- shade session? COMMISSIONER FIALA: Just one more. Along that same line, if that does happen and that makes mining here more valuable, Page 9 — Item # 12A (Hussey) October 14, 2008 can he bring this back up again? I mean -- MS. HUBBARD: It's a claim that's going to be continuing until the lawsuit is filed. MR. KLATZKOW: I think this lawsuit's going to go on years, and I mean years. I mean, this smells like one of those, you know, lawsuits that lasts seven to 10 years and just has no end. MR. MUDD: Now, the Husseys, ma'am, just so you know, based on the statutes, can mine -- can farm that particular land for 25 years, and at the end of 25 years, they can mine their particular property, okay. But they've got a long time before they get the opportunity to do that. MR. KLATZKOW: So their grandchildren will reap the benefit of the rock, but not them. COMMISSIONER FIALA: If there's houses all built up around there, then can they still mine? MR. MUDD: Yes, ma'am. COMMISSIONER FIALA: After 25 years? COMMISSIONER COLETTA: It's very unlikely they will build up around there. Most of it's conservation lands. CHAIRMAN HENNING: Okay. Any further discussion? COMMISSIONER HALAS: So what we're going to do basically is, when we come out of the sunshine (sic) then is give you direction to go ahead and file that they've exceeded the time frame and so that it ought to be dismissed? MR. KLATZKOW: We've already filed that. What I'm asking for you, if that's what you want to do, is to ask us to vigorously defend this lawsuit and that you have no interest in settling at this time. COMMISSIONER HALAS: Okay. CHAIRMAN HENNING: Okay? All right. Well, this session is adjourned, and we're going to reconvene in the sunshine at one o'clock MR. KLATZKOW: One o'clock. Page 10 — Item # 12A (Hussey) October 14, 2008 CHAIRMAN HENNING: -- to give the county staff direction -- county attorney staff. MS. HUBBARD: Thank you. MR. KLATZKOW: Thank you. COMMISSIONER COLETTA: One question that goes past where we are with this now. Can they make an unsolicited proposal to the County Attorney's Office that might encompass a whole bunch of factors? MS. HUBBARD: Sure. MR. KLATZKOW: Yes. The way these things usually work, sir, is as the years go on, the parties get closer and closer and closer, and ultimately -- 95 percent of all cases settle. COMMISSIONER COLETTA: Ninety-five percent assurance that a bunch of attorneys will be well taken care of. MR. KLATZKOW: Well, no. People get so tired of getting beaten by the process that they just wind up settling it. MR. KLATZKOW: Okay. We're done. (The closed attorney -client session concluded at 12:22 p.m.) Page 11 — Item 412A (Hussey) October 14, 2008 BOARD OF COUNTY COMMISSIONERS BOARD OF ZONING APPEALS/EX OFFICIO GOVERNING BOARD(S) OF SPECIAL DISTRICTS UNDER ITS CONTROL TOM HENNING, Chairman ATTEST DWIGHT E. BROCK, CLERK These minutes approved by the Board on as presented STATE OF FLORIDA) COUNTY OF COLLIER) or as corrected I, Terri L. Lewis, Notary Public, do hereby certify that the foregoing proceedings were taken before me at the date and place as stated in the caption hereto on Page 1 hereof, that the foregoing computer -assisted transcription is a true record of my Stenograph notes taken at said proceedings. Dated this 27th day of October, 2008. TERRI L. LEWIS, Notary Public, State of Florida; My Commission No. DD 447012 Page 12 — Item # 12A (Hussey)