Commissioner Hall Ex Parte Items - Commissioner Chris Hall
COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS AGENDA
January 9, 2024
ADVERTISED PUBLIC HEARINGS
CONSENT AGENDA
16.A.10 27417: This item requires that Commission members provide ex-parte disclosure.
Should a hearing be held on this item, all participants are required to be sworn in.
Recommendation to approve for recording the final plat of Esplanade at Rivergrass -
Phase 1 (Application Number PL20220005479), approval of the standard form
Construction and Maintenance Agreement, and approval of the performance security in
the amount of$18,535,108.54. (District 1)
X NO DISCLOSURE FOR THIS ITEM
SUMMARY AGENDA
17.A. 27294: This item requires that Commission members provide ex-parte disclosure.
Should a hearing be held on this item, all participants are required to be sworn in.
Recommendation to approve Petition VAC-PL20220006722, to disclaim, renounce, and
vacate the County and the public interest in the northern 30 feet of the easterly 140 feet
of Coconut River, located along the southerly border of Lot 27 of Coconut River Unit No.
1, according to the plat thereof as recorded in Plat Book 3, Page 58, of the Public
Records of Collier County, Florida, located at 1480 Airport-Pulling Road North, Naples,
FL 34104, at the southwest quadrant of Airport-Pulling Road North and Longboat Drive,
in Section 35, Township 49 South, Range 25 East, Collier County, Florida, and to accept
Petitioner's grant of replacement easements. (District 4)
X NO DISCLOSURE FOR THIS ITEM
17.B. 27354: This item requires that Commission members provide ex-parte disclosure.
Should a hearing be held on this item, all participants are required to be sworn in.
Recommendation to approve a rezoning Ordinance for the 12425 Union Road RPUD to
allow up to 109 residential dwelling units on 51.5± acres of property located in Port of
the Islands, approximately 1/2 mile north of Tamiami Trail East(US 41)at 12400 and 12425
Union Road, in Section 4, Township 52, Range 28, Collier County, Florida.
(PL20220004175) (District 1)
}X NO DISCLOSURE FOR THIS ITEM
4(6142 //
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
January 8, 2024
VIA E-MAIL ONLY: chris.hall@colliercountyfl.gov
amy.patterson@colliercountyfl.gov
Commissioner Chris Hall, Incoming Chairman Amy Patterson, County Manager
Collier County Board of County Commissioners Collier County Government Center
Re: Update Regarding Results of Riviera Golf Estates Straw Poll Survey
Collier County Board of County Commissioners Meeting,January 9, 2024
Agenda Item No. 11.E
Dear Incoming Chairman Hall:
Our office represents Riviera Golf Estates Homeowners Association, Inc. (the"Association"). As
we understand, on January 9, 2024 the Board of County Commissioners will be accepting an
update regarding the results of the Riviera Golf Estates straw poll survey distributed and tabulated
by the Collier County Supervisor of Elections as part of the County Manager's Report, and the
Board will be asked to provide direction as to how to proceed.
The straw poll survey asked property owners within Riviera Golf Estates whether they wished to
create a Special District and subject themselves to assessments to entirely fund, without
contribution from the County or other funding partners like Conservation Collier, the acquisition
of the Riviera Golf Club property (the "Subject Property"). The straw poll survey was conducted
in relation to a Notice of Bert Harris Claim (the"Notice") received by the county Attorney from
counsel for La Minnesota Riviera, LLC (the owner of the Subject Property, herein referred to as
the"Property Owner") on February 3, 2023 and the subsequent mediated settlement of same. The
results of the straw poll survey were overwhelmingly unfavorable.
In light of the straw poll survey results, the Association wishes to reiterate its desire for the
Board to explore alternative options to purchase of Subject Property as a partnership
between the County and the Association (see the second bullet point under "Option 2" as
outlined in the Executive Summary for BCC Agenda Item No. 11.E). In the alternative, the
Association would object to the Board settling the Bert Harris Claim in any manner which
would circumvent or modify the requirements of the Collier County Land Development
,vww beckerlawyers corn Florida I New Jersey I New York I Washington, D C
Commissioner Chris Hall,Incoming Chairman
January 8, 2024
Page 2
Code ("LDC") and/or Growth Management Plan, as briefly discussed under "Option 1" in
the Executive Summary for BCC Agenda Item No. 11.E.
A settlement resulting in one or more of the following would be extremely detrimental to the
Association: (1) an adjustment of land development or permit standards or other provisions
controlling the development or use of the Subject Property; (2) increases or modification in the
density, intensity, or use of areas of development on the Subject Property; or (3) issuance of a
rezoning,variance, special exception, development order, or any other extraordinary relief. Such
radical settlement options would substantially diminish the Association residents'property values,
and are not warranted given the deficient nature of the underlying Notice. As discussed in more
detail in the Association's earlier letter to the Board dated February 12, 2023 (enclosed herein for
ease of reference)the Association wishes to also remind the Board that the Property Owner is not
entitled to relief under the Bert J. Harris Private Property Rights Act (the "Act") for several
reasons.
• Contrary to the statements made by the Property Owner in the Notice dated February 3,
2023, the Property Owner has no vested right, as defined under the Act, or entitlement to rezone
the Subject 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 a rezoning to allow for the
development of this many units in no way constitutes an entitlement.At best,the Property Owner
has a future,speculative interest in residential use of the Subject Property,should the requirements
of the Land Development Code be satisfied as part of an application for rezoning. No such
application has been filed to date.
• The County's Golf Course Conversion Ordinance does not inordinately burden the
existing use of the Subject Property as a golf course or related uses as defined by the LDC.
• The Property Owner has not applied for a rezoning to change the use of the Subject
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 Subject Property under the current GC zoning. 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
judicial review in the inverse condemnation and exaction complaint filed by the Property Owner
against the County in 2019 (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.
• 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 Subject Property is fully developable
with 346 residential units despite numerous existing encumbrances that limit the developable area
of the Subject Property and the need for rezoning approval.Page 20 of the appraisal,found at Page
Commissioner Chris Hall,Incoming Chairman
January 8, 2024
Page 3
1429 of the Agenda Packet from the February 14, 2023 Board meeting, provides that "[n]o
[drainage] problems reported or observed." However, there remains an open County code
enforcement case related to the drainage swales on the golf course(Case No.CENA20220009683),
as well as an unaddressed non-compliance letter dated June 3,2022 from the 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,
the lake interconnects, and lake banks. These deficiencies are not accounted for in the appraisal
from the Property Owner.
• The Subject Property is substantially encumbered, which the appraisal provided with the
Notice fails to consider. The Riviera Colony Golf Estates-Tract Map,recorded in Plat Book 10 at
Pages 104 to 108, dedicates a number of easements for the perpetual use of the public for proper
purposes and uses thereon shown (e.g., access easements along the indicated lake banks for
maintenance,lakes,drainage easements, and golf course easements)in a way that would preclude
the development of up to 346 residential units, notwithstanding any application of the County's
Golf Course Conversion Ordinance to the Subject Property. There is also a deed restriction on the
Subject Property to keep the Subject Property as a golf course and related uses,which was at least
in effect at the time the Golf Course Conversion Ordinance was approved unanimously by the
Board in 2017. These encumbrances substantially affect the developable area on the Subject
Property and the Subject Property's appraisal value.
Before the County is a deficient Notice and incomplete corresponding real estate appraisal that
fails to consider the many existing encumbrances on the Subject Property or outstanding
noncompliance matters.Any rezoning or other form of extraordinary relief which would allow for
higher density or other intensive development on the Subject Property will substantially reduce
the collective property values of surrounding Riviera Golf Estates homeowners. Such
extraordinary relief is also not warranted to settle an unripe, invalid Bert Harris claim.
Thank you for your time and careful consideration of the options before the Board.
Very truly yours,
/Irr{J�f(Il l `114-9
Kathleen O. Berkey
For the Firm
KOB/ma
Enclosure
cc: Jeffrey A. Klatzkow, Esquire, Collier County Attorney (via e-mail only:
Jeffrey.Klatzkow@CollierCountyFL.gov)
Sally Ashkar, Esquire, Collier County Assistant Attorney (via e-mail only:
sally.ahkar@colliercountyfl.gov)
Ed Finn,Deputy County Manager(via e-mail only: ed.finn@colliercountyfl.gov)
Commissioner Chris Hall,Incoming Chairman
January 8, 2024
Page 4
Rick LoCastro, Collier County Commissioner (District 1) (via e-mail only:
rick.locastro@colliercountyfl.gov)
Burt L. Saunders, Collier County Commissioner (District 3) (via e-mail only:
burt.Saunders@colliercountyfl.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.
24468666v.2
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.
www beckerlawyers corn Florida I New Jersey I New York I Washington. D C
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
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 l0, 1973,t n shown number
In general easements
a review of themT act
etual
use of the public for proper purposes and uses hereo
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
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
Property
Motion to Dismiss outlining the many reasons for why the claim was not yet ripe,
theOwner 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; of and h)to ff to prepare
The fact that therent to are one C oremore
5.05.15 pertaining to the conversiongolf courses.
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,&
%>sidefitti
Kathleen O. 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@col liergov.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@colliercountyfl.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.
22964981v.8