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Agenda 12/10/2024 Item #16K12 (Agreement - Dispose of ligitation with Nples Golf Development, LLC, against Collier County and Commissioner McDaniel (Case Nos. 203-CA-001795 and 2023-CA-2995))12/10/2024 Item # 16.K.12 ID# 2024-2159 Executive Summary Recommendation to approve and authorize the Chairman to execute a Settlement Agreement which will dismiss with prejudice all claims brought by Naples Golf Development, LLC, against Collier County and Commissioner McDaniel (Case Nos. 2023-CA-001795 and 2023-CA-2995), related to a Bert Harris Claim filed pursuant to Florida Statutes §70.001 regarding application of the County’s Golf Course Conversion Ordinance on the Links of Naples Golf Course, and approve all necessary budget amendments. OBJECTIVE: To dispose of litigation with Naples Golf Development, LLC, concerning the application of the County’s Golf Course Conversion Ordinance on the Links of Naples Golf Course. CONSIDERATIONS: On June 24, 2022, Naples Golf Development, LLC (“Claimant”) filed a Bert Harris claim pursuant to Florida Statutes §70.001 against the County. Claimant is the owner of the Links of Naples Golf Course, located along Tamiami Trail East (the “Property”), and alleges that the property has been inordinately burdened by the adoption of Ordinance No. 2017-10, as amended, the County’s Golf Course Conversion Ordinance. On March 28, 2023, the County Attorney’s Office presented a settlement agreement to the Board which would have allowed Claimant to develop the Property at 3 units per acre, not to exceed 247 single family dwelling units. And provided for site-specific development standards. The Board rejected this settlement and on April 14, 2023, Claimant filed a formal lawsuit (Case No. 2023-CA-001795) alleging that the Property had been inordinately burdened by adoption of Ordinance No. 2017-10, as amended, the County’s Golf Course Conversion Ordinance. The County retained outside counsel, Woods, Weidenmiller, Michetti & Rudnick, LLP to litigate this matter. Following unsuccessful attempts to dismiss the case, several depositions, and an imminent trial date, the parties have prepared a proposed Settlement Agreement to resolve this matter and settle both this case, and a separate but related public records lawsuit against Commissioner McDaniel (Case No. 2023-CA-2995). The attached proposed Settlement Agreement allows the Claimant to construct up to four and a half (4.5) multi and/or single family residential dwelling units per acre, not to exceed 369 multi and/or single family residential dwelling units, and provides for site-specific development standards. The Settlement Agreement also provides that the County will pay Claimant the sum of $250,000 towards Claimant’s expert fees and attorneys’ fees incurred in this case. Currently, the property is zoned Rural Agricultural District (A) and is in the Rural Fringe Mixed-Use (RFMU) District, which would allow for a maximum of one (1) residential dwelling unit per acre through the Transfer of Development Rights process. Claimant has agreed to provide an enhanced Type B buffer along the eastern boundary of the Property, which abuts single-family homes. Accordingly, the settlement protects the public’s interest while also preventing the golf course conversion regulations from inordinately burdening the property. The Bert Harris Act authorizes the County to enter into a settlement agreement that provides an exception to local regulations, including the Land Development Code and Growth Management Plan. At its February 14, 2023, meeting, the Board directed Staff to prepare an LDC amendment to Section 5.05.15, Conversion of Golf Courses to minimize future litigation in connection with the County’s golf course conversion process. Clarification of the applicability of the Ordinance to stand-alone golf courses such as the Links of Naples will help to minimize future Bert Harris claims. FISCAL IMPACT: The Settlement Agreement provides that the County will pay Claimant the sum of $250,000 towards Claimant’s expert fees and attorneys’ fees incurred in this case. A budget amendment is required to appropriate reserves within Unincorporated Area General Fund (1011) for payment of this Settlement Agreement. GROWTH MANAGEMENT IMPACT: Comprehensive Planning has reviewed the Settlement Agreement and the proposed settlement is an exception to what is authorized by the Growth Management Plan, as authorized by state statute. Page 9925 of 10663 12/10/2024 Item # 16.K.12 ID# 2024-2159 LEGAL CONSIDERATIONS: This item is approved as to form and legality and requires a majority vote for approval. - JAK RECOMMENDATIONS: To approve and authorize the Chairman to execute a Settlement Agreement which will dismiss with prejudice all claims brought by Naples Golf Development, LLC, against Collier County and Commissioner McDaniel (Case Nos. 2023-CA-001795 and 2023-CA-2995), related to a Bert Harris Claim filed pursuant to Florida Statutes §70.001 regarding application of the County’s Golf Course Conversion Ordinance on the Links of Naples Golf Course, and approve all necessary budget amendments. PREPARED BY: Jeffrey A. Klatzkow, County Attorney ATTACHMENTS: 1. LOCATION_MAP Naples Golf 2. Naples Golf Settlement Agreement Executed with Exhibits 3. Naples Golf Complaint 4. Golf Course BA 1011 Page 9926 of 10663 LOCATION MAP Page 9927 of 10663 1 SETTLEMENT AGREEMENT THIS SETTLEMENT AGREEMENT (hereinafter referred to as the "Agreement") is entered into and made on this _____ day of December, 2024, by and between NAPLES GOLF DEVELOPMENT, LLC, hereinafter referred to as “Claimant,” and COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS, hereinafter referred to as “County,” and hereinafter collectively referred to as the “Parties.” W I T N E S S E T H: WHEREAS, on June 24, 2022, Claimant filed a Bert Harris claim pursuant to Fla. Stat. §70.001 against the County (hereinafter referred to as the "Claim"); and WHEREAS, the Claim alleges that the subject Property has been inordinately burdened by the adoption of Ordinance No. 2017-10, as amended, the County’s Golf Course Conversion Ordinance; and WHEREAS, the Bert Harris Act authorizes the County to make a settlement offer and enter into a settlement agreement which would have the effect of a modification, variance, special exception, or any other extraordinary relief from the application of a rule, regulation, or ordinance as it would otherwise apply to property in Collier County, provided that the relief granted protects the public interest served by the regulations at issue and is the appropriate relief necessary to prevent the governmental regulations from inordinately burdening the property; and WHEREAS, the County has made a proposed settlement offer pursuant to the Bert Harris Act and Claimant has accepted the County’s offer, subject to approval by the Board of County Commissioners, the terms and conditions of which are reflected in this Agreement; and WHEREAS, the Claimant has determined that this settlement provides the appropriate relief necessary to prevent the governmental regulations from inordinately burdening the property; and WHEREAS, the County has determined that entering into this Agreement to effectuate relief as authorized by the Bert Harris Act protects the public interest; and WHEREAS, the Parties agree that nothing in this Agreement has the effect of contravening the application of a statute as it would otherwise apply to the subject Property; and WHEREAS, pursuant to the Bert Harris Act, the County and Claimant, without either party admitting liability or fault, wish to avoid the expense, delay, risk, and uncertainty of lengthy Page 9928 of 10663 2 litigation, and agree that it is in their respective mutual best interests to do so in accordance with the terms set forth herein; and WHEREAS, Claimant and the County now desire to settle and resolve all disputes between them concerning the Claim and reduce the settlement to writing so that it shall be binding upon both Parties’ respective owners, principals, elected officials, officers, employees, ex- employees, agents, attorneys, representatives, insurers, successors, assigns, heirs, departments, agencies and affiliates. NOW, THEREFORE, in consideration of the mutual covenants, promises and consideration set forth in this Agreement, and with the intent to be legally bound, Claimant and County agree as follows: 1. Recitals. The above recitals are true and correct and are hereby incorporated by reference. 2. The Property. A legal description and sketch of the subject property is attached hereto as Exhibit A (hereinafter, the “Property”). 3. Development Conditions. In consideration of the resolution of all disputes or claims arising from or referring or relating in any way, whether directly or indirectly, to the Claim, the Parties agree to the following: a. Density. The Parties agree that Claimant is entitled to construct a mixed-use residential development, including both multi-family and single-family units, with up to 4.5 residential dwelling units per acre, not to exceed 369 residential dwelling units. The Parties agree that the Property is currently zoned under the Rural Agrigucltural District (A) category with a future land use designation of Rural Fringe Mixed use, and these zoning and land use categories will not need to be altered to effectuate the development approved under this Agreement. The Parties agree that the right to construct 369 residential units shall continue in perpetuity regardless of any amendment to the Comprehensive Plan or Land Development Code, or any future change in ownership of the Property. The Parties expressly acknowledge that Claimant shall not be required to use transfer of development rights (TDR’s) to achieve this density. b. Permitted Use. The Parties agree that no building or structure, or part thereof, shall be erected, altered or used, or land used, in whole or in part other than residential dwelling units. No golf course shall be permitted on the property, except as provided herein. Page 9929 of 10663 3 c. Accessory Use. Accessory uses customarily associated with the permitted use shall be permitted, including but not limited to: i. Recreational facilities including clubhouse, pool, tennis facilities, parks, and playgrounds. ii. Customary accessory uses and structures including carports, garages and utility buildings. iii. Temporary sales trailers and model units. iv. Essential services, including interim and permanent utility, water management and maintenance facilities. v. Walls, berms, signs. vi. Passive open space uses and structures, including but not limited to landscaped areas, gazebos, benches, and walking trails. vii. Any other accessory use that is determined to be comparable to the foregoing by the Board of Zoning Appeals, or Hearing Examiner, pursuant to the process outlined in the Land Development Code (“LDC”). d. Conditional Use. The Parties agree that no conditional uses shall be available on Property, except the existing conditional use for the golf course at the Property (Collier County Resolution 99-62), which shall continue until such time as the Notice of Commencement is filed for construction of the new development. e. Development Standards. Claimant agrees to comply with the site design and development standards contained in the attached Exhibit B (“Residential Development Standards”). Standards not specifically set forth in Exhibit B shall be those specified in the applicable sections of the LDC in effect at the date of application for development order. f. Transportation Concurrency. The County agrees that Claimaint shall not be required to demonstrate transportation concurrency to the County as part of a development order for the Property, and the County expressly waives any such requirement. Claimant shall, however, be required to comply with all other transportation concurrency requirements, payments, and improvements that may be required by the State or its agencies. The County shall not take any action to impede Claimant’s efforts to secure concurrency with the State or any other agency. Page 9930 of 10663 4 g. Water and Sewer Availability and Concurrency. The Property lies within the service area of the Collier County Water-Sewer District (“CCWSD”) and receives CCWSD water and wastewater services. Water/sewer capacity exists as of the date of this Agreement, however, Claimant understands and agrees that this does not guarantee capacity at a future date. Claimant agrees to, and shall be required to, demonstrate water/sewer concurrency at the time of development order and shall comply with all water/sewer concurrency requirements, payments, and improvements that may be required by the County and state for approval of a development order on the Property. Subject to the foregoing, the County will exercise good faith in approving other aspects of the Property’s water/sewer concurrency requirements.. h. Buffering. Claimant agrees to provide a Type A buffer around the entire perimeter of the property, however, Claimant agrees to provide a Type B buffer along the entire eastern boundary of the Property. i. No Future Applications. Claimant agrees that it will not request or apply for any expansion of uses, density increases or bonuses, or conditional uses. Claimant also agrees that it will not request or apply for any variances, deviations, or changes to the development standards provided for in Exhibit B Claimant may, however, apply for variances from applicable sections of the LDC not specifically set forth in Exhibit B, and must comply with the regulations set forth in the LDC, Collier County Administrative Code and any other relevant local rule or regulation governing variances, including, but not limited to, regulations regarding application and public hearing requirements, variance criteria, and standards for approval. j. Applicability of Land Development Code. The Parties agree that this Agreement does not exempt the Claimant from applying for and obtaining the relevant development orders (except any rezoning) required by the LDC, including, but not limited to any plats/plans. Claimant agrees to comply with all other relevant provisions of the LDC, including all applicable County development regulations. k. Impact Fees. Claimant understands and agrees that this Agreement does not exempt the Claimant from paying impact fees. Nothing in this Agreement shall constitute a waiver of any impact fees. Page 9931 of 10663 5 l. Permits. Claimant agrees that all applicable local, state and federal permits must be obtained before commencement of development on the Property. 4. Pending Litigations and Claims. Upon approval of this Agreement by the Collier County Board of County Commissioners, Claimant agrees to withdraw the Claim and agrees that it will not seek further administrative or judicial review of the Claim. Claimant will further file a dismissal with prejudice of Case no. 2023-CA-001795. Claimant will further voluntarily dismiss its public records lawsuit against Commissioner McDaniel, Case no. 2023-CA-2995.. 5. Attorney’s Fees and Costs. The County will pay Claimant the sum of $250,000 towards Claimant’s expert fees and attorneys’ fees. The parties are responsible for their own expert and attorney’s fees and costs incurred up to and throughout the approval of this Agreement by the Collier County Board of County Commissioners. The prevailing party in any suit to construe or enforce this Settlement Agreement shall be entitled to its attorneys’ fees. 6. Conformity with the Land Development Code. The terms of this Agreement shall not be construed as making the Property in any way non-conforming with the Land Development Code. 7. Golf Course Conversion Ordinance. The parties expressly acknowledge that the Property is not required to comply with Ordinance No. 2017-10, as amended, the County’s Golf Course Conversion Ordinance. 8. Approval of Agreement. The Parties agree that nothing in this Agreement has the effect of contravening the application of a statute as it would otherwise apply to the Property, and therefore no action in circuit court for approval of this Agreement is required pursuant to Section 70.001(4)(d), Florida Statutes. Neither Party may attempt to invalidate this Agreement on the basis that a circuit court did not approve this Agreement pursuant to Section 70.001(4)(d), Florida Statutes. 9. Release. In consideration of the resolution of the Claim, and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, Claimant, on behalf of themselves, their attorney, agents, representatives, heirs, successors and assigns, hereby expressly releases and forever discharges the County, as well as its owners, principals, elected officials, officers, employees, ex-employees, agents, attorneys, contractors, representatives, successors, assigns, insurers, heirs, departments, agencies and affiliates, from any and all claims, demands, causes of action, damages, costs, liens, attorney’s fees, expenses, and obligations of any kind or nature whatsoever, that Claimant has asserted or could have asserted in the Claim or that arise Page 9932 of 10663 6 from or relate or refer in any way, whether directly or indirectly, accrued or unaccrued, known or unknown, to the Claim or any incident, event or allegation referred to in the Claim. 10. Binding Effect. Claimant and the County acknowledge and agree that this Agreement is intended to and shall be binding upon their respective owners, principals, elected officials, officers, employees, ex-employees, agents, attorneys, representatives, insurers, successors, assigns, heirs, and affiliates. 11. Agreement Runs With The Land. The Parties acknowledge and agree that the rights, covenants, restrictions, terms and conditions set forth in this Agreement touch and concern the Property and run with the land. The Parties intend the Agreement to be binding upon and inure to the benefit of any future owner of the Property. 12. No Admission. The terms and conditions set forth above are in compromise of a disputed Bert Harris Act claim pursuant to Section 70.001(4)(c), Florida Statutes, and shall not be construed as an admission of liability or fault by either party, which is expressly denied. Provided, however, that this Agreement shall be admissible in order to enforce its terms. 13. Waiver. The waiver by any Party of a breach of any provision of this Agreement by any other Party shall not operate or be interpreted as a waiver of any later breach of that provision or any other provision. 14. Authority. The signatories to this Agreement have the authority and are expressly authorized to resolve all matters as set forth herein and by their signatures here represent and affirm their authority to execute this Agreement. 15. Recorded. Claimant, at its sole cost and expense, shall record this Agreement in the public records of Collier County, Florida, within thirty (30) days of approval by the Board of County Commissioners. 16. Notices. All notices required or permitted to be given hereunder shall be in writing and shall be deemed given when (a) hand delivered, or (b) delivered via Federal Express, UPS or other nationally recognized overnight courier service, receipt required, or (c) transmitted via email or facsimile, provided a copy is sent the next business day by method (a) or (b). Notices shall be deemed delivered on the date hand delivered or on the date shown on the receipt. All notices shall be addressed as follows: County: Collier County Office of the County Manager 3299 Tamiami Trail East, Suite 202 Naples, FL 34112 Page 9933 of 10663 7 With a Copy to: Collier County Office of the County Attorney 3299 Tamiami Trail East, Suite 800 Naples, FL 34112 Claimant: Naples Golf Development, LLC 12455 S Access Rd Port Charlotte, FL 33981 17. Entire Agreement. This is the entire agreement by and between Claimant and the County, and no verbal or written assurance or promise by any party hereto is effective or binding unless included in this Agreement. This Agreement may not be amended without a written instrument signed by both parties and approved by the Collier County Board of County Commissioners. 18. Breach. For breach of any provision of this Agreement, the non-breaching Party shall provide written notice via certified mail and 30 days to cure, unless mutually extended by the Parties within 30 days of delivery of said notice to cure. If no solution can be reached within 30 days of delivery of said notice, the Parties agree that all underlying causes of action or claims of Claimant have been extinguished by this Agreement and that the sole remedy for breach of this Agreement shall be for specific performance of the terms and conditions of this Agreement. 19. Invalidation. The Parties agree that if any provision of this Agreement is held to be invalid, illegal or unenforceable, either legislatively or judicially, that provision will be severed from the Agreement and the remainder of this Agreement shall not be affected thereby and will continue to be valid and enforceable to the fullest extent permitted by law. 20. Applicable Law. The Parties agree that the sole venue for any such action shall be in the Twentieth Judicial Circuit in and for Collier County, Florida in Naples, Florida. Page 9934 of 10663 Page 9935 of 10663 Page 9936 of 10663 Page 9937 of 10663 Page 9938 of 10663 {00064648:3} 1 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL DIVISION NAPLES GOLF DEVELOPMENT, LLC, a Michigan Limited Liability Company, Plaintiff, CASE NO.: v. COLLIER COUNTY, a political subdivision of the State of Florida, Defendant. __________________________________/ COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiff, Naples Golf Development, LLC (“Naples Golf”), and hereby sues Collier County (the “County”), a political subdivision of the State of Florida, and further alleges: The Parties, Jurisdiction, & Venue 1. Naples Golf is a Michigan limited liability company authorized to conduct business in the State of Florida, with its principal place of business in Collier County, Florida. Naples Golf is beneficially interested in, and aggrieved by, the acts, decisions, and conduct of the County, as alleged herein. 2. The County is a political subdivision of the State of Florida subject to the jurisdiction of this Court, and with the capacity to sue and be sued. The County’s acts and omissions, as alleged herein, were performed under color of law. 3. This Court has jurisdiction pursuant to section 26.012 of the Florida Statutes because the amount in controversy exceeds $50,000 and it seeks to invoke the equitable jurisdiction of this Court seeking injunctive relief. Filing # 171052828 E-Filed 04/14/2023 04:06:11 PM Page 9939 of 10663 {00064648:3} 2 4. Venue in this Court is proper, pursuant to section 41.011 of the Florida Statutes, in that Naples Golf and the County reside and conduct business in this Circuit, the claims arose in this Circuit, and the real property that is at issue in this action is located in this Circuit. 5. All conditions precedent to bringing this action have occurred. The Property 6. Since 1999, Naples Golf has owned real property located in unincorporated Collier County (the “Property”). The Property consists of approximately 82.49 acres bearing the physical address of 16161 Tamiami Trail E., Naples, Florida, and is more fully described in the legal description attached hereto and incorporated herein as Exhibit A. 7. Since the time of its purchase, the Property was, and still is, zoned Rural Agricultural District (A) pursuant to Section 2.2.2.3 of the County’s Land Development Code (“LDC”), and bears the land use designation of Rural Fringe Mixed-Use—Receiving Lands. 8. Within the Property’s zoning district and land use designations, residential uses are a permitted use. Golf courses, and golf driving ranges, are a conditional use. 9. Concurrent with Naples Golf’s purchase of the Property, the County enacted Resolution 99-62, approving, as a conditional use, the development and operation of the Property as a golf course. The conditional use authorization did not amend or otherwise modify the Property’s zoning or land use designations, nor extinguish any use permissible under these designations. 10. In 2000, Naples Golf, pursuant to this conditional use authorization, built a golf course known as “The Links at Naples” on the Property. Page 9940 of 10663 {00064648:3} 3 The Golf Course Ordinance 11. On March 28, 2017 (and only after the imposition of a development moratorium), the County enacted Ordinance No. 17-10, later codified as Section 5.05.15 of the LDC (the “Golf Course Ordinance”). Subsection 3.D (pages 8 through 16) of Ordinance no. 17-10 contained the addition of the Golf Course Ordinance. A copy of the Golf Course Ordinance (as amended) is attached hereto and incorporated herein as Composite Exhibit B. 12. County committees and boards that have reviewed the Golf Course Ordinance have publicly concluded that, despite its passage, this law is burdensome, an onerous imposition on private property rights, and an overreach by local government. 13. These conclusions are well-founded. The Golf Course Ordinance disproportionally burdens golf course properties in the County, and the owners thereof, with requirements and restrictions not imposed on other properties or owners in the County. 14. The County’s decision makers have nevertheless ignored the concerns of its advisory boards and committees and continued to keep the Golf Course Ordinance as a law. 15. Under the Golf Course Ordinance, an owner of land improved with a golf course seeking another use of his or her property—even one expressly permitted by the property’s zoning and land use designations—must submit an “Intent to Convert” application to the County. 16. The Golf Course Ordinance also requires, as a condition of approving the “Intent to Convert” application, that the property owner must first grant the County an exclusive option to purchase the property, in lieu of approval. 17. The County is not obligated under the Golf Course Ordinance to pay or otherwise compensate the landowner to obtain such an option. Rather, the County has utilized its regulatory authority to require that any landowner bear the costs and burden to perform studies, create reports, Page 9941 of 10663 {00064648:3} 4 and hire professional experts to opine about the suitability of the property for golf course purposes, and then, based on the conclusions of such reports and studies, present the County with the right to purchase the property. 18. The time, expense, and associated burden for the preparation of the necessary studies under the Golf Course Ordinance is only applicable to landowners who use their property as a golf course. 19. Further, the County does not reimburse or otherwise compensate the landowner for the expenses associated with the studies and work product required by the Golf Course Ordinance. 20. The County’s use of its regulations is tantamount to the acquisition of an option for the purchase of real property without the payment of compensation and requires owners of a golf course to risk losing their private property to the County if they seek approval to convert the property to another use. 21. If the County declines to exercise its purchase option, as a further condition of approval, a golf course owner must agree to open space and greenway requirements, not required of other types of properties, that dramatically limit the practical ability of such properties to be subject to other uses, including residential uses. Naples Golf inquires of the County’s Golf Course Ordinance 22. In or about 2021, Naples Golf began the process of seeking the County’s approval to develop the Property as a residential subdivision, under the Property’s existing zoning and land use designations. 23. On May 18, 2021, Naples Golf submitted a request for a zoning verification letter requesting that the County formally confirm which portions of the County’s LDC applied to the Property. A copy of Plaintiff’s May 19, 2021, request for the zoning verification letter is attached Page 9942 of 10663 {00064648:3} 5 hereto and incorporated herein as Exhibit C. In its verification letter request, Naples Golf inquired of the County “Please confirm that section 5.05.15 of the Land Development Code, relating to golf course conversions, does not apply at the Property.” 24. On June 28, 2021, the County issued its zoning verification letter, a copy of which is attached hereto and incorporated herein as Exhibit D. In the zoning verification letter, the County responded: LDC section 5.05.15 does apply. These properties are zoned Rural Agricultural District (A) and golf courses and/or driving ranges are listed as a conditional use. Resolution 1999-062 (attached) confirms this conditional use for these. As this use is established, a pre-application meeting will be required for any addition of residential use, followed by the “Intent to Convert” application with the Planning & Zoning Division. 25. The County also indicated throughout other sections of the zoning verification letter that Naples Golf was obligated to complete the golf course conversion process and that it would not be allowed to make a use of the Property for anything other than a golf course unless and until the Golf Course Ordinance was completed. 26. The ostensible basis for the County’s position is that when the Property was granted the conditional use authorization as a golf course in 1999, all other uses allowable under the LDC—including residential uses—were somehow forfeited or extinguished. 27. The County’s position had no basis anywhere in the LDC; instead, it is contradicted by the text of the Golf Course Ordinance itself, which states that it applies only “to a golf course constructed in any zoning district where the proposed use is not permitted, accessory, or conditional in the zoning district for which a zoning change is sought.” 28. Despite this plain language, and the other express dictates of the LDC, the County formally expressed that for Naples Golf to develop the Property as a residential subdivision, it would be required to seek a change to the Property’s zoning and land use designations—that is, to Page 9943 of 10663 {00064648:3} 6 apply to the County to “change” the Property’s zoning and land use to their already-existing designations under the land development code. Naples Golf seeks to obtain a Subdivision Approval from the County 29. At the County’s insistence, and to ensure that the County’s staff was not mistaken in the interpretation and application of the Golf Course Ordinance, Naples Golf sought a development order to establish a residential subdivision. Because the entitlements for the Property already allowed for residential development as a matter of right, Naples Golf prepared the necessary documentation to submit a preliminary subdivision plat petition. (the “Subdivision Application”). 30. Before filing the Subdivision Application, Naples Golf sought a pre-application meeting with the County. To attend this meeting, the County required that Naples Golf pay a fee to access, and discuss the Subdivision Application with, the County staff. 31. On October 13, 2021, Naples Golf attended a pre-application meeting with the County staff to discuss the Subdivision Application. 32. At the meeting, the County’s representatives confirmed the County’s prior position regarding the Golf Course Ordinance and informed Naples Golf that the County would not approve the Subdivision Application or any other application for a development order unless, and until, Naples Golf first proceeded through the process outlined in the Golf Course Ordinance, including giving the County a free option to purchase the Property. 33. On October 15, 2021, the County posted pre-application meeting notes reflecting its official position that “Conversion of Golf Course Application must be approved prior to PSP/PPL submittals.” Page 9944 of 10663 {00064648:3} 7 34. On October 20, 2021, the County informed Naples Golf that it would refuse to accept or process the Subdivision Application unless Naples Golf first followed, and completed the process under, the Golf Course Ordinance. The County took this position even though the Property’s zoning entitlements and land use classification already allowed for residential uses as a matter of right. The Bert Harris Claims Process 35. Immediately after the County’s denial of the Subdivision Application, Naples Golf retained an appraiser to determine the financial impact of the County’s denial and impairment of the vested rights to utilize the Property for a residential purpose. 36. On June 24, 2022, Naples Golf transmitted to the County a demand under the Bert J. Harris Private Property Rights Protection Act (the “Harris Act”). (Exhibit E, the “Harris Demand”). 37. Shortly after its receipt of the Harris Demand, the County, through the County Attorney’s office, contacted Naples Golf representatives and indicated that the County “would like to get the [Bert Harris Claim] quickly resolved.” 38. Between September 2022 and March 28, 2023, the County and Naples Golf worked collaboratively to resolve the claim under the Harris Act. Indeed, the County’s staff, including its qualified zoning professionals and attorneys, all recognized the improprieties in the application of the Golf Course Ordinance to the Property. 39. Given the significant financial harm the County had already inflicted on Naples Golf and fearing that Naples Golf was prepared to invalidate the Golf Course Ordinance, the County offered to (i) rescind its prior application of the Golf Course Ordinance to the Property; (ii) permit Naples Golf to develop the Property with a density of 3 units per acre; and (iii) establish Page 9945 of 10663 {00064648:3} 8 reasonable development standards for the improvement of the Property as a single-family residential development. 40. On March 28, 2023, the County’s Board of County Commissioners considered the settlement between Naples Golf and the County. The County staff and attorney’s office recommended approval of the settlement agreement that Naples Golf and the attorneys for the County had worked so hard to prepare over the prior six months. 41. The settlement was placed on the County’s consent agenda so that it could be readily approved. 42. Rather than resolve the matter, and follow the advice of its qualified zoning staff and attorneys, the Board of County Commissioners elected to pull the settlement agreement from the consent agenda. 43. After discussion, the County Commission rejected the settlement that Naples Golf, the County staff, and their respective attorneys proposed for County Commission approval. The County reveals its desire to acquire the Property 44. Shortly after the rejection, Naples Golf contacted County Commissioner Bill McDaniel—the elected official who moved to deny the settlement agreement. Naples Golf asked that Commissioner McDaniel move the Board of County Commissioners to reconsider its decision and settle the Harris Act claims. 45. Commissioner McDaniel rejected Naples Golf’s efforts, and, instead, indicated that the County wished to purchase the Property so that it could be used for residential development. The County is not a developer of land and is not in the business of improving private property for single family residential purposes. The only basis for refusing to accept a settlement that all Page 9946 of 10663 {00064648:3} 9 qualified parties believed to be in the best interests of the public is to artificially depress the value of the Property so that the County can seek to acquire it for less money. 46. Naples Golf wrote a confirmatory email to Commissioner McDaniel about the County’s desire to purchase the Property. 47. In response, Commissioner McDaniel left a voicemail for Naples Golf representatives and indicated, “I’m not responding to your email. I’m waiting on confirmation on what I can say.” 48. On April 13, 2023, the County Attorney confronted a Naples Golf representative and confirmed Commissioner McDaniel’s prior statements—the County coveted the Property. The County attorney suggested that Naples Golf initiate negotiations for sale of the Property. 49. This offer has never been reduced to writing. The County has never performed any studies or otherwise examined whether the acquisition of the Property would be in the best interest of the public. In fact, the County has never officially responded to the Harris Demand other than to reject the settlement that Naples Golf and the County staff/attorneys recommended that the County Commission approve. 50. The County’s failure to respond in writing to the Harris Demand is a violation of the Harris Act’s requirements that the government actually respond in writing to a demand within the applicable time frames proscribed by law. 51. As a result of the foregoing, it is clear that the County intends to prohibit and preclude Naples Golf from improving the Property for residential purposes and that it will continue to impose and obligate Naples Golf to follow the requirements of the Golf Course Ordinance so it can force Naples Golf to pay for the studies and evaluations required by the Golf Course Ordinance and provide the County the free option to purchase the Property. Page 9947 of 10663 {00064648:3} 10 52. Meanwhile, Naples Golf is precluded from using the Property free from onerous and unconstitutional regulations (i.e., the Golf Course Ordinance). 53. Naples Golf has retained the undersigned law firm and is obligated to pay it a reasonable attorney’s fee. COUNT I Bert J. Harris Private Property Rights Protection Act 54. Naples Golf re-alleges and incorporates paragraphs 1 through 53 as if fully stated herein. 55. This cause of action seeks compensation from the County pursuant to the Harris Act in excess of $50,000 exclusive of attorney’s fees, interest, and costs. 56. Naples Golf is a “property owner” of “real property” under the Harris Act. 57. The County is a “governmental entity” under the Harris Act. 58. The County’s actions, as alleged herein, constitute an “action of a governmental entity” pursuant to the Harris Act, which specifically includes “enforcing any ordinance, resolution, regulation, rule, or policy.” 59. The County’s actions, as alleged herein, have inordinately burdened Naples Golf’s specific existing right to use, and its vested rights in, the Property. 60. Naples Golf submitted an offer of settlement and the County has rejected it. WHEREFORE, Naples Golf demands the following relief: (a) Judgment that the County’s actions have inordinately burdened Naples Golf’s existing use of, and vested rights in, the Property; (b) An award of compensation, by the County to Naples Golf, for the loss of the Property’s fair market value resulting from the County’s actions; (c) An award of attorneys’ fees and costs as allowed by statute; and Page 9948 of 10663 {00064648:3} 11 (d) Such other relief as allowed by statute or deemed just by this Court. COUNT II Taking of Private Property, Without Payment of Just and Full Compensation, in Violation of Florida Constitution 61. Naples Golf re-alleges and incorporates paragraphs 1 through 53 as if fully stated herein. 62. This is an action for compensation under the Florida Constitution in excess of $50,000 exclusive of attorney’s fees, interest, and costs. 63. The Golf Course Ordinance conditions Naples Golf’s use of the Property to which it is already entitled, under the LDC, on Naples Golf providing the County benefits (chiefly, expensive studies, the purchase option and the open space / greenway requirements) to which it is not otherwise entitled. 64. The unconstitutional conditions doctrine forbids governmental entities from burdening a property owner’s rights by coercively withholding benefits from the owner in return for the forfeiture of other rights. 65. The County’s actions, as described herein, violate the unconstitutional conditions doctrine. 66. The County’s violation of the unconstitutional conditions doctrine constitutes a taking of Naples Golf’s private property without payment of just compensation, in violation of Article X, Section 6 of the Florida Constitution. 67. The County’s actions, in conditioning Naples Golf’s use of the Property already allowed under the County’s Land Development Code on demands bearing no nexus or proportionality to the impacts of the permitted use, further constitutes a taking of the Property by violating the “dual rational nexus” test applied in such contexts by the Florida Supreme Court. Page 9949 of 10663 {00064648:3} 12 68. Naples Golf is entitled to compensation as a result of the County’s actions. WHEREFORE, Naples Golf demands the following relief: (a) Judgment that the County’s actions constitute a taking of private property, without the payment of just compensation, in violation of Article X, Section 6 of the Florida Constitution; (b) An award of just compensation for Naples Golf’s loss occasioned by the taking of its private property; (c) An award of attorneys’ fees and costs as allowed by statute; and (c) Such other relief as allowed by statute or deemed just by this Court. COUNT III Injunctive Relief (Facial and As-Applied Challenge to the Golf Course Ordinance) 69. Naples Golf re-alleges and incorporates paragraphs 1 through 53 as if fully stated herein. 70. The Golf Course Ordinance, as applied to the Property by the County, violates Naples Golf’s right to pursue development of the Property without such development being subject to unconstitutional conditions, or contingent on payment of unconstitutional exactions. 71. Moreover, the provisions of the Golf Course Ordinance, as described herein, render it incapable on its face of being applied in a manner that does not violate the unconstitutional conditions doctrine and the prohibition against unconstitutional exactions. 72. As such, the County should be permanently enjoined from continuing to enforce the Golf Course Ordinance. 73. Naples Golf has a clear legal right to develop its Property free of the County’s enforcement of the Golf Course Ordinance. Page 9950 of 10663 {00064648:3} 13 74. In the absence of a permanent injunction, Naples Golf has no adequate remedy at law to protect its right to develop the Property without being unconstitutionally burdened by the Golf Course Ordinance. 75. Absent a permanent injunction prohibiting enforcement of the Golf Course Ordinance, Naples Golf will suffer irreparable harm in the form of continued County requirements that development of the Property be subject to unconstitutional conditions, or contingent on payment of unconstitutional exactions. 76. It is in the public interest to enjoin the County’s use and implementation of laws that are contrary to law and unconstitutional. WHEREFORE, Naples Golf demands the following relief: (a) Final judgment, in favor of Naples Golf and against the County, permanently enjoining the County from enforcing the Golf Course Ordinance; (b) Declaring the Golf Course Ordinance facially unconstitutional; (c) An award of costs incurred in pursuing this remedy; and (d) Such other relief as allowed by statute or deemed just by this Court. DEMAND FOR JURY TRIAL Naples Golf demands trial by jury on all its claims. DATED: April 14, 2023 /s/ Ethan J. Loeb ETHAN J. LOEB Florida Bar No. 0668338 EthanL@BLHTLaw.com LoisF@BLHTLaw.com HeatherW@BLHTlaw.com STEVEN GIESELER Florida Bar No. 880981 StevenG@BLHTLaw.com MelissaW@BLHTLaw.com NICHOLAS M. GIESELER Page 9951 of 10663 {00064648:3} 14 Florida Bar No. 43979 NicholasG@BLHTLaw.com MelissaW@BLHTLaw.com KATHRYN E. SAIENNI Florida Bar No. 1039676 KathrynS@BLHTLaw.com LynseyH@BLHTLaw.com BARTLETT, LOEB, HINDS & THOMPSON, PLLC 100 North Tampa Street, Suite 2050 Tampa, Florida 33602 Telephone: (813) 223-3888 Facsimile: (813) 228-6422 Attorneys for Plaintiffs Page 9952 of 10663 (;+,%,7$ Page 9953 of 10663 Page 9954 of 10663 &20326,7((;+,%,7% Page 9955 of 10663 Page 9956 of 10663 Page 9957 of 10663 Page 9958 of 10663 Page 9959 of 10663 Page 9960 of 10663 Page 9961 of 10663 Page 9962 of 10663 Page 9963 of 10663 Page 9964 of 10663 Page 9965 of 10663 Page 9966 of 10663 Page 9967 of 10663 Page 9968 of 10663 Page 9969 of 10663 Page 9970 of 10663 Page 9971 of 10663 Page 9972 of 10663 Page 9973 of 10663 Page 9974 of 10663 Page 9975 of 10663 Page 9976 of 10663 Page 9977 of 10663 Page 9978 of 10663 Page 9979 of 10663 Page 9980 of 10663 Page 9981 of 10663 Page 9982 of 10663 Page 9983 of 10663 Page 9984 of 10663 Page 9985 of 10663 Page 9986 of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elican Bay Financial Center 8889 Pelican Bay Boulevard, Suite 400 Naples, Florida 34108 Tel: 239.344.1100• Fax: 239.498.6225• www.henlaw.com Naples • Fort Myers • Bonita Springs (;+,%,7& Page 9987 of 10663 (;+,%,7' Page 9988 of 10663 Page 9989 of 10663 Page 9990 of 10663 Page 9991 of 10663 Page 9992 of 10663 Page 9993 of 10663 Page 9994 of 10663 Page 9995 of 10663 Page 9996 of 10663 Page 9997 of 10663 Page 9998 of 10663 Page 9999 of 10663 Page 10000 of 10663 Page 10001 of 10663 Page 10002 of 10663 Page 10003 of 10663 Page 10004 of 10663 Page 10005 of 10663 Page 10006 of 10663 ^` P:813-223-3888 F:813-228-6422 E:NicholasG@BLHTLaw.com -XQH VIA SERVICE OF PROCESS &RPPLVVLRQHU%XUW/6DXQGHUV&KDLUPDQ &ROOLHU&RXQW\%RDUGRI&RXQW\&RPPLVVLRQHUV 7DPLDPL7UDLO(DVW6XLWH 1DSOHV)ORULGD 5HClaim Pursuant to Fla. Stat. §70.001 (Harris Act) Naples Golf Development, LLC, 16161 Tamiami Trail E., Naples, FL 34114 &KDLUPDQ6DXQGHUV 2QEHKDOIRIRXUFOLHQW1DSOHV *ROI'HYHORSPHQW//&WKH ³&ODLPDQW´WKLVOHWWHU FRQVWLWXWHVSUHVHQWDWLRQRIDFODLPDJDLQVW&ROOLHU&RXQW\SXUVXDQWWRWKH%HUW-+DUULV3ULYDWH 3URSHUW\5LJKWV3URWHFWLRQ$FW)OD6WDWHWVHTWKH³+DUULV$FW´ 7KHUHDOSURSHUW\RZQHGE\WKH&ODLPDQW³6XEMHFW3URSHUW\´FRQVLVWVRIDSSUR[LPDWHO\ DFUHVDQGLVORFDWHGDORQJWKHQRUWKVLGHRI7DPLDPL7UDLO(DQGDORQJWKHZHVWDQGHDVW VLGHVRI+DPLOWRQ5RDG7KH6XEMHFW3URSHUW\LVPRUHIXOO\GHVFULEHGLQWKHDSSUDLVDOVXSSRUWLQJ WKLV+DUULV$FWFODLPDWWDFKHGDV([KLELW³$´WRWKLVFODLPOHWWHU7KH6XEMHFW3URSHUW\LV]RQHG XQGHUWKH5XUDO$JULFXOWXUDO'LVWULFW$FDWHJRU\ZLWKDODQGXVHGHVLJQDWLRQRI5)085XUDO )ULQJH0L[HG8VH 3XUVXDQWWRWKH&RXQW\¶V/DQG'HYHORSPHQW&RGH³/'&´SDUFHOVRIODQGZLWKWKH ]RQLQJDQGODQGXVHGHVLJQDWLRQVJRYHUQLQJWKH6XEMHFW3URSHUW\DUHSHUPLWWHGWRXWLOL]HWKHODQG IRUUHVLGHQWLDOXVHZLWKDPD[LPXPDOORZDEOHGHQVLW\RIRQHXQLWSHUDFUH'HVSLWHWKLVWKH&RXQW\ KDVSURKLELWHGWKH&ODLPDQWIURPGHYHORSLQJWKH6XEMHFW3URSHUW\DVDUHVLGHQWLDOVXEGLYLVLRQ PHHWLQJWKHVHFULWHULD$VDEDVLVIRUWKHGHQLDOWKH&RXQW\KDVUHOLHGRQ/'&6HFWLRQWKH ³*ROI&RXUVH&RQYHUVLRQ´ 7KLVDSSOLFDWLRQRIWKH*ROI&RXUVH&RQYHUVLRQSURYLVLRQWRSURKLELWDXVHDOORZHGXQGHU WKH&RXQW\¶V]RQLQJDQGODQGXVHUHJXODWLRQVLQRUGLQDWHO\EXUGHQVDQH[LVWLQJXVHRIWKH6XEMHFW 3URSHUW\RUDYHVWHGULJKWWRDVSHFLILFXVHRIWKH6XEMHFW3URSHUW\DVWKRVHWHUPVDUHGHILQHGDQG XVHGLQWKH+DUULV$FW7KH&RXQW\¶VDFWLRQVKDYHGLUHFWO\OLPLWHGRUUHVWULFWHGWKHXVHRIWKH 6XEMHFW3URSHUW\VXFKWKDWWKH&ODLPDQWLVHLWKHUSHUPDQHQWO\XQDEOHWRDWWDLQLWVUHDVRQDEOH LQYHVWPHQWEDFNHGH[SHFWDWLRQRULVOHIWZLWKH[LVWLQJXVHVWKDWDUHXQUHDVRQDEOHVXFKWKDWWKH &ODLPDQWEHDUVSHUPDQHQWO\DGLVSURSRUWLRQDWHVKDUHRIDEXUGHQLPSRVHGIRUWKHJRRGRIWKH SXEOLFZKLFKLQIDLUQHVVVKRXOGEHERUQHE\WKHSXEOLFDWODUJH)OD6WDWH (;+,%,7( Page 10007 of 10663 /HWWHUWR&RPPLVVLRQHU%XUW/6DXQGHUV&KDLUPDQ -XQH 3DJH ^` 7KHDSSOLFDWLRQRIWKH*ROI&RXUVH&RQYHUVLRQSURYLVLRQRIWKH/'&LVDQ³DFWLRQRID JRYHUQPHQWDOHQWLW\´ZLWKLQWKDWWHUP¶VPHDQLQJDVGHILQHGE\)OD6WDWG7KH &RXQW\¶VDFWLRQVUHVWULFWWKH&ODLPDQW¶VXVHRILWVSURSHUW\DQGHOLPLQDWHRWKHUZLVHUHDVRQDEO\ IRUHVHHDEOH QRQVSHFXODWLYH ODQG XVHV $V VXFK WKH &ODLPDQW VHHNV 6L[ 0LOOLRQ 'ROODUV DVFRPSHQVDWLRQIRUWKH&RXQW\¶VDFWLRQV7KHDPRXQWRIFRPSHQVDWLRQLQWKLV FODLPUHIOHFWVWKHUHGXFWLRQLQIDLUPDUNHWYDOXHWRWKH6XEMHFW3URSHUW\DQGLVVXSSRUWHGE\WKH ERQDILGHYDOLGDSSUDLVDODWWDFKHGDV([KLELW³$´DQGLQFRUSRUDWHGKHUHLQE\UHIHUHQFH 5HVSHFWIXOO\ BARTLETT LOEB HINDS & THOMPSON, PLLC %\s/Nicholas M. Gieseler 1LFKRODV*LHVHOHU 1*KZ (QFORVXUHV Page 10008 of 10663 (;+,%,7$ Page 10009 of 10663 Page 10010 of 10663 Page 10011 of 10663 Page 10012 of 10663 Page 10013 of 10663 Page 10014 of 10663 Page 10015 of 10663 Page 10016 of 10663 Page 10017 of 10663 Page 10018 of 10663 Page 10019 of 10663 Page 10020 of 10663 Page 10021 of 10663 Page 10022 of 10663 Page 10023 of 10663 Page 10024 of 10663 Page 10025 of 10663 Page 10026 of 10663 Page 10027 of 10663 Page 10028 of 10663 Page 10029 of 10663 Page 10030 of 10663 Page 10031 of 10663 Page 10032 of 10663 Page 10033 of 10663 Page 10034 of 10663 Page 10035 of 10663 Page 10036 of 10663 Page 10037 of 10663 Page 10038 of 10663 Page 10039 of 10663 Page 10040 of 10663 Page 10041 of 10663 Page 10042 of 10663 Page 10043 of 10663 Page 10044 of 10663 Page 10045 of 10663 Page 10046 of 10663 Page 10047 of 10663 Page 10048 of 10663 Page 10049 of 10663 Page 10050 of 10663 Page 10051 of 10663 Page 10052 of 10663 Page 10053 of 10663 Page 10054 of 10663 Page 10055 of 10663 Page 10056 of 10663 Page 10057 of 10663 Page 10058 of 10663 Page 10059 of 10663 Page 10060 of 10663 Page 10061 of 10663 Page 10062 of 10663 Page 10063 of 10663 Page 10064 of 10663 Page 10065 of 10663 Page 10066 of 10663 Page 10067 of 10663 Page 10068 of 10663 Page 10069 of 10663 Page 10070 of 10663 Page 10071 of 10663 Page 10072 of 10663 Page 10073 of 10663 Page 10074 of 10663 Page 10075 of 10663 Page 10076 of 10663 Page 10077 of 10663 Page 10078 of 10663 Page 10079 of 10663 Page 10080 of 10663 Page 10081 of 10663 Page 10082 of 10663 Page 10083 of 10663 Page 10084 of 10663 Page 10085 of 10663 Page 10086 of 10663 Page 10087 of 10663 Page 10088 of 10663 Page 10089 of 10663 Page 10090 of 10663 Page 10091 of 10663 Page 10092 of 10663 Page 10093 of 10663 Page 10094 of 10663 Page 10095 of 10663 Page 10096 of 10663 Page 10097 of 10663 Page 10098 of 10663 Page 10099 of 10663 Page 10100 of 10663 Page 10101 of 10663 Page 10102 of 10663