Resolution 2009-046
RESOLUTION 09- 46
A RESOLUTION OF THE BOARD OF ZONING APPEALS
OF COLLIER COUNTY, FLORIDA, RELATING TO
PETITION NUMBER CU-2005-AR-8748, GRANTING A
CONDITIONAL USE FOR EARTH MINING IN THE
RURAL AGRICULTURAL "A" ZONING DISTRICT, FOR
PROPERTY LOCATED AT 2060 TOBIAS STREET IN
SECTION 22, TOWNSHIP 49 SOUTH, RANGE 27 EAST,
COLLIER COUNTY, FLORIDA.
WHEREAS, the Legislature of the State of Florida in Chapter 67-1246, Laws of Florida,
and Chapter 125, Florida Statutes, has conferred on Collier County the power to establish,
coordinate and enforce zoning and such business regulations as are necessary for the protection
of the public; and
WHEREAS, the County pursuant thereto has adopted a Land Development Code
(Ordinance No. 2004-41, as amended) which includes a Comprehensive Zoning Ordinance
establishing regulations for the zoning of particular geographic divisions of the County, among
which is the granting of Conditional Uses; and
WHEREAS, the Collier County Planning Commission forwarded the petition to the
Board of Zoning Appeals without a formal recommendation; and
WHEREAS, the Board of Zoning Appeals previously heard and denied this matter on
October 23, 2007 and the Petitioner appealed the decision to the Collier Circuit Court; and
WHEREAS, the Collier Circuit Court has remanded this matter back to the Board of
Zoning Appeals to make findings not inconsistent with the Court's Order.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF ZONING APPEALS
OF COLLIER COUNTY, FLORIDA that:
For the reasons set forth in the record, the Petition filed by Alan Roseman of Q. Grady
Minor & Associates, P.A., representing Ashraf Fawzy, with respect to the property hereinafter
described in Exhibit A, and subject to: 1) the Escrow Agreement attached as Exhibit B and
incorporated as if fully set out herein; 2) the agreement attached as Exhibit C between Ashraf
Fawzyand the Frangipani Ag. Community Civic Association, Inc, dated November 1, 2006; and
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3) The Conditions of Approval attached as Exhibit D. The Petition is hereby granted for a
Conditional Use for earth mining and excavation in excess of 12,000 cubic yards (4,000 cubic
yards per parcel) in the Rural Agricultural "A" Zoning District.
BE IT FURTHER RESOLVED that this Resolution be recorded in the minutes of this
Board.
This Resolution adopted after motion, second and majority vote, this ~#tday of
Fe.brOOrlf ' 2009.
ATTEST.: \,yrr, .
DWIG{lT EBROCK., CLERK.
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BOARD OF ZONING APPEALS
COLLIER COUNTY, FLORIDA
By: .
Attest ..(~ Qa.......D
,1Qllatutt Ol,",~' ,;',.>k
Approved as to form and
legal sufficiency:
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By:
DONNA FIALA, CHAIRMAN
!L- 7. WjJ.
Steven T. Williams
Assistant County Attorney
Exhibits Attached:
A. Legal description
B. Escrow Agreement
C. Road Agreement with Neighbors
D. Conditions of Approval
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EXHIBIT' n An
FAWZY AQUACULTURE
PROPERTY DESCRIPTION
THE WEST 1/2 OF THE NORTH 1/2. OF THE SOUTH 1/2. OF THE NORTH 1/2.
OF THE SOUTH 1/2. OF THE NORTHEAST 1/4: LESS THE WEST 35 FEET THEREOF.
- DEDICATED FOR ROAD PURPOSES: AND THE WEST 1/2 OF THE SOUTH 1/2. OF THE SOUTH 1/2.
: OF THE NORTH 1/2. OF THE SOUTH 1/2. OF THE NORTHEAST 1/4: LESS THE WEST .35 FEET THEREOF.
DEDICATED FOR ROAD PURPOSES: AND WEST 1/2 OF THE NORTH 1/2. OF THE NORTH 1/2, OF
THE SOUTH 1/2. OF THE SOUTH 1/2. OF THE NORTHEAST 1/4: LESS THE WEST 35 FEET THEREOF. DEOICTED
FOR ROAD PURPOSES. ALL LYING AND BEING IN SECTION 22. TOWNSHIP 49 SOUTH. RANGE 27 EAST
. COLLIER COUNlY, FLORDIA.
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EXHIBIT
ESCROW AGREEMENT
THIS AGREEMENT entered into this d,Li/4 day of PebrUMY . 2009 by and among ASHRAF
FAWZY (hereinafter "Developer"), THE BOARD OF COUNTY COMMISSiONERS OF COLLIER
COUNTY, FLORIDA, (hereinafter "County") and GOODLETTE, COLEMAN, JOHNSON,
YOVANOVICH & KOESTER, P.A. (hereinafter "Escrow Agent").
RECITALS:
A. Developer is constructing a fish farm on approximately 15.08 acres of land in an
Agricultural (A) zoning district, located at 2060 Tobias Street, in Section 22, Township 49 South,
Range 27 East, Collier County, Florida.
B. In order to commence operations, Developer has proposed to excavate a large pond
area, which would necessitate the removal of 300,000+/- cubic yards of fill. Developer filed
Petition CU-2005-AR-8748 seeking approval of a conditional use for the removal of the fill.
C. The Board of County Commissioners, at its regular meeting on February 24, 2009, in
accordance with the February 2, 2009 ruling of the Collier Circuit Court in Ashraf Fawzy v. Collier
County, Case No. 07-4570-CA, agreed to approve the conditional use sought in Petition CU-
2005-AR-8748, provided Developer enters into this Escrow Agreement.
D. Developer has agreed to place all proceeds from the sale of fill removed as part of the
construction of the fish farm in escrow in Escrow Agent's trust account to insure the completion of
the construction of the fish farm and the establishment of aquaculture operations at the site
(hereinafter "Required Improvements" ) in accordance with the terms of this Agreement.
AGREE~ENTS:
NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants
hereinafter set forth, Developer, the County and the Escrow Agent do hereby covenant and agree
as follows:
1. Developer will cause the Required Improvements to be constructed pursuant to
specifications that have been approved by the County Manager or his designee.
2. Developer hereby authorizes Escrow Agent to hold all proceeds from the sale of the
excavated fill in escrow in Escrow Agent's trust account, pursuant to the terms of this Agreement.
3. Escrow Agent agrees to hold the Escrowed Funds in its trust account, to be disbursed
only pursuant to this Agreement.
4. The escrowed funds shall be released to the Developer to pay the contractor or other
professionals for work performed by the contractor or other professionals to construct the fish
farm only upon written approval of the County Manager or his designee who shall approve the
release of the funds on deposit not more than once a month to the Developer. Upon completion
of the Required Improvements any proceeds remaining in the Escrow agent's trust account shall
be released to the developer.
However, in the event that Developer shall fail to comply with the requirements of this Agreement,
then the Escrow Agent agrees to pay to the County immediately upon demand the balance of the
funds held in escrow by the Escrow Agent, as of the date of the demand, provided that upon
payment of such balance to the County, the County will have executed and delivered to the
Escrow Agent in exchange for such funds a statement to be signed by the County Manager or his
designee to the effect that:
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(a) Developer has failed to complete the Required Improvements in a timely fashion,
(b) The escrow funds drawn down by the County shall be used for restoration of the
excavated area to the extent of the funds then held in escrow, engineering, legal and
contingent costs and expenses. and to offset any damages, either direct or
consequential, which the County may sustain on account of the failure of the Developer
to carry out and execute the above-mentioned development work; and
(c) The County will promptly repay to the Escrow Agent any portion of the funds
drawn down and not expended as stated above.
5. Written notice to the Escrow Agent by the County specifying what amounts are to be paid
to the Developer shall constitute authorization by the County to the Escrow Agent for release of
the specified funds to the Developer. Payment by the Escrow Agent to the Developer of the
amounts specified in a letter of authorization by the County to the Escrow Agent shall constitute a
release by the County and Developer of the Escrow Agent for the funds disbursed in accordance
with the letter of authorization from the County.
6. Should the funds heid in escrow be insufficient to complete the Required Improvements,
the Board, after duly considering the public interest, may at its option complete the Required
Improvements and resort to any and all iegal remedies against the Developer.
7. Nothing in this Agreement shall make the Escrow Agent liable for any funds other than
those placed in deposit by the Developer in accordance with the foregoing provision: provided,
that the Escrow Agent does not release any monies to the Developer or to any other person
except as stated in this Escrow Agreement
8. All of the terms, covenants and conditions herein contained are and shall be binding upon
the respective successors and assigns of the Developer.
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IN WITNESS WHEREOF, the County, the Escrow Agent and the Developer ave cause IS
Agreement to be executed by their duly authorized officers or representatives the day and year
first written above.
SIGNED, SEALED AND DELIVERED IN
THE PRESENCE OF:
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ASHRAF FAWZY
J T
Witne signature
S'1lX'tA Olf'Ok.CC>'
Printed or Typed Name
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It ess signature
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Pr d or Typed Name
GOODLETTE, COLEMAN, JOHNSON,
YOVANOVICH & KOESTER, P.A.
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By:
Richard D. Yovanovich, Esq.
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ATTEST:
DWIGHT E. BROCK, CLERK
Deputy Clerk
BOARD OF COUNTY COMMISSIONERS
COLLIER. C~NTY, FLORIDA
If / / -
By: ~. /)"'...:v;n"c- ~~
Donna Fiala, Chairman
Approved as to form and legal
sufficiency:
~7,W'~
Steven T. Williams
Assistant County Attorney
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EXHIBIT
07-4570-CA/33
40f4
Frangipani Ag. Community
Civic Association, Inc.
512 Frangipani Avenue
Naples, FL 34117
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November I, 2006
Collier County Board of County Commissioners, Staff; Regulatory Agencies, Interested Parties;
This letter is written in support of Mr. AshrafFawzy and the Fawzy Aquaculture project proposed for
construction in Section 22, Twp49S, Rng27E.
Over the last several months Mr. Fawzy has met with the Board of Directors and members of the
Frangipani Ag Community Civic Association and residents throughout our community. After a thorough review
of the Fawzy Aquaculture project all parties feel this business will be fully compatible, and in fact, a benefit to
our community. A detailed proposal, here attached, outlines guidelines and details of construction that have
':en worked out together with residents to minimize disruption of local neighborhoods during the construction
J-'hase of this business.
As all roads in our community are privately owned and privately maintained, we are pleased that Mr.
Fawzy has agreed to assist with the stabilization and ongoing maintenance of Dove Tree 51. in conjunction with
the construction and operation of his Fish Farm. As this road is the sole access and egress for many residents
and small businesses, clear and safe access is a primary concern for all. The F ACCA Board of Directors and
resident members feel this project will be a win / win situation where business and private residents work
together for a common benefit.
In conclusion, the Board and resident members of the Frangipani Ag Community Civic Association fully
support the Fawzy Aquaculture project and urge approval of this business throughout the pennitting process.
If we can provide any additional jnformation or be of further assistance, please contact us or call me on
my cell at 564-1813.
Sincerely;
~~~
Greg Bower - President F ACCA
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Fawzy Aquaculture
2224 Heritage Greens Dr.
Naples, FL 34119
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EXHIBIT
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October 25, 2006
Dove Tree St. Community Residents;
· Ashraf Fawzy / Fawzy Aquaculture (FA) wishes to utilize the road right-of-way along Dove Tree St -
Sec. 14 Twp 49S Range 27E as a temporary haul route for the removal offill dirt for the
construction of a fish farming facility and reasonable light business traffic thereafter,
for operation of his fish farming business.
· In consideration for agreement and support to do so by Dove Tree St. residents, FA agrees to
improve Dove Tree St. and proposes to conduct project operations as follows:
· FA agrees to donate 2,000 cubic yards of road stabilizing grade fill material for the
improvement of Dove Tree St.
· FA agrees to apply this fill material along the legal and recorded right-of-way of Dove Tree St.
at the commencement of excavation to establish a safe and efficient temporary haul route
and an improved roadway for future use.
· During the period of pond construction and fill removal, FA will maintain Dove Tree St. in a
safe and passable condition for residents at all times.
· FA will work closely with excavation contractors during construction to establish safe
transport procedures, regulate truck speed, control dust, and conduct reasonable hours of
operation to minimize disruption of the Dove Tree neighborhood.
· FA will work with excavation contractors to restricttruck traffic during the time periods when
children are loading and unloading from school buses at the 10th St. SE bus stop. This
means there will be an AM and a PM shutdown period when school is in session.
· FA agrees to set up a contact system with residents prior to commencement of excavation, so
that during work any haul route related problems can be quickly addressed. This contact
group will be composed of several Dove Tree St. residents and other members of the
Board of Directors of the Frangipani Ag Community Civic Association.
· FA proposes to begin excavation and hauling on approximately November 1, 2006
permitting pending. It is estimated that excavation and hauling will be completed in 6 to 9
months after commencement.
· FA pledges that excavation for the proposed FA fish farming business is the complete extent of
proposed fill hauling, and that no additional fill will be transported down Dove Tree St.
without further discussion with Dove Tree residents.
· FA asserts that following completion of construction of the fish farming facility, normal FA
business traffic down Dove Tree St. will be reasonable and consistent with the Frangipani
Ag Community.
· At the conclusion of fill excavation and hauling, FA agrees to participate, along with other
Dove Tree residents and businesses, in the ongoing, periodic general maintenance of
Dove Tree St
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I have appreciated the opportunity to meet will the residents of the Dove Tree and Frangipani
neighborhoods over the last several months and establishing this protocol to your satisfaction. I look
forward to working together with the community on the improvement of Dove Tree St. for all the
residents and the Aquaculture project.
Sincerely,
0s
AshrafFawzy - Owner / Fawzy Aquaculture
Agenda Item No. SA
October 23, 2007
Page 90 of 91
CONDITIONS OF APPROVAL
CU-2005-AR-8748
August 13, 2007
I. TIle use is limited to that depicted on the conceptual site plan identified as "Fawzy
Aquaculture Master Site Plan" prepared by Q. Grady Minor and Associates, P.A.,
dated January 2005, as revised through June 30, 2006, except as further conditioned
below.
2. Approval of this Conditional Use shall not be construcd as approval of the attached
conceptual site plan; the site plan shall be formally reviewed and approved as part of
the Site Development Plan (SDP) process. No variances from any LDC requirements
have been granted as part of the acceptance of the subject site plan. Ifit is determined
that the site plan is not in compliance with any LDC requirement, the site plan must
be brought into compliance prior to the issuance of any site development plan
approval. No excavation pennit shall be issued until the SDP has been approved.
3. The amount of excavated material is limited to 300,000 cubic yards.
4. Excavation activities, including removal of material from the subject site, are limited
to 18 months from the beginning date of excavation, as reported in the "Annual Status
Report for Lake Excavation," required to be submitted to the County Manager or
designee.
5. All sections of roads impacted by truck traffic generated by the excavation activity
shall be maintained by the owner of the subject site in a dust-free 'condition for the
length of excavation time, as repOlted in the "Annual Status Report for Lake
Excavation" to be submitted to the County Manager or designee. Maintenance of the
roads shall also consist of all material or components of the roads, which include a
stabilized subgrade, base and wearing surface. The sections of road to be maintained
include the section on Ashraf Battisha Road, from the entry to the project site to
fawzy Battisha Aquaculture A venue; the section' on Fawzy Battisha Aquaculture
Avenue, from the intersection of Ashraf Battisha Road to Dove Street; the section on
Dove Street, from the intersection of Fawzy Battisha Aquaculture Avenue to
Frangipani Street; the section on Frangipani Street, fi'om the intersection of Dove
Street to 10lh Street SE; the section on lOth street SE, fi'om the intersection of
Frangipani Street to Golden Gate Boulevard; and the section on Golden Gate
Boulevard, from the intersection of 10lh Street SE to Collier Boulevard. The County
Manager or his designee may add sections of road to the above list, at his/her
discretion.
EXHIBIT D
Agenda Item No. 8A
October 23, 2007
Page 91 of 91
6. The pelmitted aquacuitw'e facility shall be limited to native species within the orders
of Ictaluridae and Palaemonidae. If a modification to the products allowed by
Aquaculture Certificate Number AQ5421037 is made, it will require approval from
Collier County Environmental Staff.
7. This project is within the Panther Primary Merit Zone. Consultation must be sought
from the wildlife agencies for any mitigation required. Staff will ask the agencies to
sign off before work on the site commences with the first Development Order.
8. The results of a Big Cypress Fox Squirrel survey and listed plant species relocation
shall be provided within 60 days of the Agricultural Clearing Notification approval.
9. Copies of all required agency permits shall be submitted prior to commencement of
any work on the site.
10. On-site water weUs shall not to be used to fill, replenish, or cycle water through the
proposed aquaculture lake.
11. The applicant shall provide wildlife crossings per the North Belle Meade Overlay
requirements of the GMP, with the number and design to be determined at the lime of
site development plan approval, subject to review and approval by the County
Environmental Services Department.
EXHIBIT D
ESCROW AGREEMENT
THIS AGREEMENT entered into this d,Li/4 day of PebNIJ.iY ,2009 by and among ASHRAF
FAWZY (hereinafter "Developer"), THE BOARD OF COUNTY COMMISSIONERS OF COLLIER
COUNTY, FLORIDA, (hereinafter "County") and GOODLETTE, COLEMAN, JOHNSON,
YOVANOVICH & KOESTER, P.A. (hereinafter "Escrow Agent").
RECITALS:
A. Developer is constructing a fish farm on approximately 15.08 acres of land in an
Agricultural (A) zoning district, located at 2060 Tobias Street, in Section 22, Township 49 South,
Range 27 East, Collier County, Florida.
B. In order to commence operations, Developer has proposed to excavate a large pond
area, which would necessitate the removal of 300,000+/- cubic yards of fill. Developer filed
Petition CU-2005-AR-8748 seeking approval of a conditional use for the removal of the fill.
C. The Board of County Commissioners, at its regular meeting on February 24, 2009, in
accordance with the February 2, 2009 ruling of the Collier Circuit Court in Ashraf Fawzy v. Collier
County, Case No. 07 -4570-CA, agreed to approve the conditional use sought in Petition CU-
2005-AR-8748, provided Developer enters into this Escrow Agreement.
D. Developer has agreed to place all proceeds from the sale of fill removed as part of the
construction of the fish farm in escrow in Escrow Agent's trust account to insure the completion of
the construction of the fish farm and the establishment of aquaculture operations at the site
(hereinafter "Required Improvements" ) in accordance with the terms of this Agreement.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing premises and mutual covenants
hereinafter set forth, Developer, the County and the Escrow Agent do hereby covenant and agree
as follows:
1. Developer will cause the Required Improvements to be constructed pursuant to
specifications that have been approved by the County Manager or his designee.
2. Developer hereby authorizes Escrow Agent to hold all proceeds from the sale of the
excavated fill in escrow in Escrow Agent's trust account, pursuant to the terms of this Agreement.
3. Escrow Agent agrees to hoid the Escrowed Funds in its trust account, to be disbursed
only pursuant to this Agreement.
4. The escrowed funds shall be released to the Developer to pay the contractor or other
professionals for work pertormed by the contractor or other professionals to construct the fish
farm only upon written approval of the County Manager or his designee who shall approve the
release of the funds on deposit not more than once a month to the Developer. Upon completion
of the Required Improvements any proceeds remaining in the Escrow agent's trust account shall
be released to the developer.
However, in the event that Developer shall fail to comply with the requirements of this Agreement,
then the Escrow Agent agrees to pay to the County immediately upon demand the balance of the
funds held in escrow by the Escrow Agent, as of the date of the demand, provided that upon
payment of such balance to the County, the County will have executed and delivered to the
Escrow Agent in exchange for such funds a statement to be signed by the County Manager or his
designee to the effect that:
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(a) Developer has failed to complete the Required Improvements in a timely fashion,
(b) The escrow funds drawn down by the County shall be used for restoration of the
excavated area to the extent of the funds then held in escrow, engineering, legal and
contingent costs and expenses, and to offset any damages, either direct or
consequential, which the County may sustain on account of the failure of the Developer
to carry out and execute the above-mentioned development work; and
(c) The County will promptly repay to the Escrow Agent any portion of the funds
drawn down and not expended as stated above.
5. Written notice to the Escrow Agent by the County specifying what amounts are to be paid
to the Developer shall constitute authorization by the County to the Escrow Agent for release of
the specified funds to the Developer. Payment by the Escrow Agent to the Developer of the
amounts specified in a letter of authorization by the County to the Escrow Agent shall constitute a
release by the County and Developer of the Escrow Agent for the funds disbursed in accordance
with the letter of authorization from the County.
6. Should the funds held in escrow be insufficient to complete the Required Improvements,
the Board, after duly considering the public interest, may at its option complete the Required
Improvements and resort to any and all legal remedies against the Developer.
7. Nothing in this Agreement shall make the Escrow Agent liable for any funds other than
those piaced in deposit by the Developer in accordance with the foregoing provision; provided,
that the Escrow Agent does not release any monies to the Developer or to any other person
except as stated in this Escrow Agreement
8. All of the terms, covenants and conditions herein contained are and shall be binding upon
the respective successors and assigns of the Developer.
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IN WITNESS WHEREOF, the County, the Escrow Agent and the Developer have caused this
Agreement to be executed by their duly authorized officers or representatives the day and year
first written above.
SIGNED, SEALED AND DELIVERED IN
THE PRESENCE OF:
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ASHRAF FAWZY
S'1WIA 01 FOl...Cc--
Printed or Typed Name
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It ess signature
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Pr d or Typed Name
GOODLETTE, COLEMAN, JOHNSON,
YOVANOVICH & KOESTER, P.A.
S u.ToQco-
Witnes Ignature
'S'1 Io..U I 1'\ .vI FOLCo-
Printed or Typed Name
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~~t ss Sign~re. ~ ')~ /( tf\
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Pnnt d qr iyped Nl;ime
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By:
Richard D. Yovanovich, Esq.
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ATT~~T: .;",.
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Approved as to form and legal
sufficiency:
BOARD OF COUNTY COMMISSIONERS
COLLIE OUNTY, FLORID!
By: / ~'^-' 67';..4. ~
Donna Fiala, Chairman
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Steven T. Williams
Assistant County Attorney
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07-4570-CA/33
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