Backup Documents 02/14/2023 Item #12A 1 2 A
Kathleen O. Berkey,AICP
Shareholder and Certified Land Planner Becker
Board Certified Attorney,City,County,and
Local Government Law
Phone: 239.628.4919 Fax:239.433.5933
KBerkey@beckerlawyers.com
Becker&Poliakoff
Six Mile Corporate Park
12140 Carissa Commerce Court,Suite 200
Fort Myers,Florida 33966
Northern Trust Building
4001 Tamiami Trail North,Suite 270
Naples,Florida 34103
February 12, 2023
VIA E-MAIL ONLY: rick.locastro@colliercountyfl.gov
amy.patterson@colliercountyfl.gov
Commissioner Rick LoCastro, Chairman Amy Patterson, County Manager
Collier County Board of County Commissioners Collier County Government Center
Re: La Minnesota Riviera,LLC ("Property Owner")
Notice of Bert J. Harris Private Property Rights Act("Act") Claim, dated
February 3, 2023 ("Notice"), related to the Riviera Golf Club Property
Collier County Board of County Commissioners Meeting, February 14, 2023
Agenda Item No. 16.K.8
Dear Chairman LoCastro:
Our office represents Riviera Golf Estates Homeowners Association, Inc. (the"Association"). As
we understand,on February 14,2023 the Board of County Commissioners will be considering the
following as part of the Consent Agenda:
16.K.8.Recommendation to 1)Direct staff to provide written notice of a Bert Harris Claim
received in connection with the Riviera Golf Course Conversion application to owners of
real property contiguous to the owner's property pursuant to Florida Statutes Section
70.001(4)(a), known as the Bert J. Harris, Jr. Private Property Rights Protection Act; 2)
Direct the County Manager to negotiate a settlement of the Bert Harris Claim, which may
include a pre-suit mediation conference, and return to the Board for consideration of the
settlement; 3) Direct staff to issue a written statement of allowable uses identifying the
allowable uses to which the subject property may be put pursuant to Florida Statutes
Section 70.001(5)(a);and 4)Direct staff to prepare an LDC amendment of Section 5.05.15,
Conversion of Golf Courses, to minimize future litigation in connection with the golf course
conversion process. (All Districts)
On behalf of the Association, we respectfully request that this agenda item be pulled from the
Consent Agenda for discussion, and we provide the following comments for consideration by the
Commissioners, County Manager, and County Attorney.
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Commissioner Rick LoCastro, Chairman
February 12, 2023
Page 2
1. Background as to the County's Golf Course Conversion Ordinance
The Golf Course Conversion Ordinance (No. 17-10) referenced in the Notice was unanimously
approved (5-0) by the Commissioners on March 28, 2017, following a long moratorium on golf
course rezonings during which County staff did exhaustive study of the best practices and policies
of golf course rezoning regulations across the State. [See the County's Golf Course Conversion
White Paper entitled "Findings on Golf Course Conversions and Recommended LDC
Amendments" dated September 21, 2016.] Further, multiple public hearings were held with
hundreds of stakeholders all speaking in favor of the golf course conversion requirements,
including the average 100-foot perimeter greenway. In other words, there was essentially
unanimous agreement in the County and among stakeholders,save one attorney,that the greenway
dimensional requirements were an important protection to existing landowners who bought homes
on a golf course and have paid taxes at a premium over time as a result. The value of the Golf
Course Conversion Ordinance was recognized by both, Commissioner Saunders and
Commissioner McDaniel, at the time of adoption.
• "Commissioner Bill McDaniel said the new rules offer a nice balance of protections for
homeowners and rights for landowners." Greg Stanley, Collier Commissioners Approve
New Rules For Developers Hoping To Convert Old Golf Courses,NAPLES NEWS,Mar. 14,
2017,https://www.naplesnews.com/story/news/government/2017/03/14/colliercommissio
ners-approve-new-rules-developers-hoping-convert-old-golf-courses/99186190/.
• Commissioner Saunders stated that,"I've been involved in this kind of business for a long
time, and it's rare that you have the output from staff is so well done that I don't think we
have gotten,maybe one letter in opposition to this....So I just want to congratulate the staff
for—what you obviously did was very thorough, and you obviously spent a lot of time with
the communities involved. And it sounds like there's almost unanimity from these
communities to go forward with this proposal..." Transcript of Collier County
Commission meeting (Mar. 28, 2017).
2. The Property Owner is not entitled to relief under the Act, as the County's Golf
Course Conversion Ordinance does not inordinately burden the existing use of the property
or a vested right to a specific use of the property.
Contrary to the statements made by the Property Owner in the Notice,the Property Owner has no
vested right, as defined under the Act, or entitlement to rezone the property from Golf Course
(GC) to a Planned Unit Development (PUD) to allow for as many as 346 residential units. The
Property Owner's desire for this many units in no way constitutes an entitlement. At best,the golf
course owner has a future, speculative interest for residential use of the property, should the
requirements of the LDC be satisfied as part of a complete application for rezoning.
The appraisal provided with the Notice also does not demonstrate an actual loss of fair market
value as required under the Act,as it assumes the property is fully developable with 346 residential
units despite numerous existing encumbrances that limit the developable area of the property and
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Commissioner Rick LoCastro, Chairman
February 12, 2023
Page 3
the need for rezoning approval. Page 20 of the appraisal, also at Agenda Packet Page 1429,
provides that"[n]o [drainage]problems reported or observed."However,there is an open County
code enforcement case currently that relates to the drainage swales on the golf course (Case No.
CENA2022-00096834), as well as an unaddressed non-compliance letter dated June 3,2022 from
South Florida Water Management District to the Property Owner that identifies non-compliance
with respect to the golf course perimeter swales, culverts from the perimeter golf course swales
to the lake interconnects, lake interconnects,and lake banks.These deficiencies are not accounted
for in the appraisal from the Property Owner.
The Riviera Golf Course is comprised of Tracts A-11.7 acres, B-18.60 acres, C-45.70 acres, and
D-18.57 acres for a total of 93.94 acres, and is substantially encumbered in a way that may not
allow for the development of up to 346 residential units, notwithstanding any application of the
County's Golf Course Conversion Ordinance to the property. As detailed in the Executive
Summary dated April 26, 2022 for County Commission Agenda Item No. 11.D (Agenda Packet
Page 407 et seq.), the existing Riviera Colony Golf Estates-Tract Map, recorded in Plat Book 10
at Pages 104 to 108 and dated March 20, 1973, dedicates a number of easements for the perpetual
use of the public for proper purposes and uses thereon shown. In general, a review of the Tract
Map shows the following dedicated easements:
• A 15-foot access easement, upland from and along the indicated lake edges is hereby
provided for use by the County maintenance work crew.
• 8.63 acres in Tract D and 5.88 acres in Tract C as a Drainage Easement for Lakes.
• A 20-foot drainage easement running within and along Tract A.
• A 20-foot drainage easement running over Tract C and between Tracts G and Tract F
• A 10-foot-wide drainage easement within and along Tracts B, C, D and G.
• An additional 10-foot drainage and golf course easement on various Tracts abutting Tracts
B, C, and D (making for a total 20-foot-wide drainage easement).
There was also a deed restriction on the property to keep it as a golf course and related uses,which
was in effect at the time the Golf Course Conversion Ordinance was approved unanimously by the
Commission in 2017.At the time the Ordinance was adopted,the Property Owner was fully aware
of the deed restriction's existence, since it had sued and recovered a financial settlement from its
title company in relation to the deed restriction (La Minnesota Riviera, LLC v. Lawyers Title Ins.
Corp., 207-CV-77-FTM-29DNF, 2007 WL 3024242, (M.D. Fla. Oct. 15, 2007)). The Property
Owner waited until after 2020 to file its Intent to Convert application,because it believed that the
deed restriction was in effect until at least that time. Further, the Property Owner stated its belief
that the deed restriction was in place until 2020 in documents filed in the on-going Declaratory
Judgment action filed by the Association regarding the deed restriction (Case No. 11-2022-CA-
001330-0001).
The resolution to these many encumbrances will influence the amount of area eligible for
redevelopment beyond the authority of the Commissioners, and is not accounted for in the Notice
or appraisal enclosed therein. Therefore, we conclude that there is no present, actual devaluation
of the property as a result of the Golf Course Conversion Ordinance,as there is currently no vested
i2A
Commissioner Rick LoCastro, Chairman
February 12, 2023
Page 4
right to redevelop for residential use and such a right may never be granted for several good
reasons, given the characteristics of the property in question.
Further, the Property Owner has not applied for a rezoning to change the use of its property and
the County has not yet taken any action that directly restricts or limits the existing use or any vested
right to a specific use of the property by the Property Owner. As a result, the Property Owner is
not aggrieved and has not yet exhausted its administrative remedies necessary to proceed with a
claim under the Act. The issue of ripeness was also the subject of discussion in the inverse
condemnation and exaction complaint filed by the Property Owner against the County in 2019 and
was related to this same property and the County's adoption of the Golf Course Conversion
Ordinance in 2017 (Case No. 2019-CA-004758). In that case, following the County's thoughtful
Motion to Dismiss outlining the many reasons for why the claim was not yet ripe, the Property
Owner filed a Notice to Withdraw the Complaint. Nothing has changed since that time. The
Property Owner has made no application for a rezoning to the County and the County has not made
a ruling on same.Accordingly,any threat of a claim under the Act is still not ripe for consideration.
3. Settlement Negotiations Under the Act Are Not Warranted
It is understood that pre-suit settlement discussions between the County and the Property Owner
are required pursuant to the Act. Fundamentally,no settlement should be reached since this matter
is not ripe for a claim under the Act in the first place, and the Notice did not include an appraisal
demonstrating an actual loss of fair market value as required under the Act. Said differently, any
settlement offer should be "no changes to the action of the County," as the County has not yet
made a land use ruling and the Property Owner is not aggrieved. Further, it is unnecessary for the
County to allow for exceptions from the Ordinance as a part of any settlement. The legislative
history of the Act further indicates that if a deviation from the LDC Section 5.05.15.G.2.b
requirements were to be endorsed by the Commission as a form of relief to the Property Owner, it
"...shall protect the public interest served by the regulation at issue..." Ref. CS/SB 295, March
26, 1995,Page 5; see also § 70.001(4)(d)1 of the Act.How could such a concession to the benefit
of the Property Owner to avoid the greenway dimensional standards of the LDC be protective of
the public interest, not only for this specific golf course conversion but for all those that will
inevitably be filed in the future?
In conclusion, we respectfully ask the Commission and County staff to see the Notice for
what it is-a deficient threat of a premature claim made in an audacious effort to circumvent
the County's thoughtfully researched and well-vetted golf course conversion requirements
or induce the County to purchase the property at an inflated price that assumes an
unjustified maximum redevelopment potential. We respectfully request that the
Commissioners pull this item from the Consent Agenda for discussion, and ultimately deny
or defer any direction: (a)to the County Manager to negotiate a settlement with the Property
Owner to allow adequate time to review the insufficient Notice received from the Property
Owner and the issues raised herein;and(b)to staff to prepare an amendment to LDC Section
5.05.15 pertaining to the conversion of golf courses. The fact that there are one or more
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Commissioner Rick LoCastro, Chairman
February 12, 2023
Page 5
threatened lawsuits is not a fault of the LDC, but is instead an indication that developers
want to maximize their profits without consideration of the impact on abutting landowners.
Thank you for your time and careful consideration of this issue, among the many others related to
this property.
Very truly yours,
Kathleen . Berkey
For the Firm
KOB/ma
cc: Mike Bosi, Collier County Zoning Division Director (via e-mail only:
Michael.Bosi@colliercountyfl.gov)
Jeffrey A. Klatzkow, Esquire, Collier County Attorney (via e-mail only:
JeffKlatzkow@colliergov.net)
Chris Hall, Collier County Commissioner (District 2) (via e-mail only:
chris.hall@colliercountyfl.gov)
Burt L. Saunders, Collier County Commissioner (District 3) (via e-mail only:
burt.saunders@co lliercountyfl.gov)
Dan Kowal, Collier County Commissioner (District 4) (via e-mail only:
dan.kowal@colliercountyfl.gov)
William L. McDaniel, Jr., Collier County Commissioner (District 5) (via e-mail only:
bill.mcdaniel@colliercountyfl.gov)
Board of Directors, Riviera Golf Estates Homeowners Association, Inc.
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