BCC Minutes 09/15/2009 Closed Session (#12A-Grider) MINUTES
Grider
September 15 , 2009
4
• IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY,FLORIDA
CASE NO.: 08-7794-CA
co rr
CRAIG GRIDER and AMBER GRIDER,
Plaintiffs, • =
rr
vs. N
rr.
COLLIER COUNTY,a political
subdivision of the State of Florida,
Defendant.
/
ORDER DENYING DEl
111OTI9N Mit REFEARINO AND/OR CI ARIFICATIQZ
THIS CAUSE came to be heard upon Defendant,Collier County's Motion for Rehearing
and/or Clarification. The Court,having reviewed the papers and being otherwise advised in the
premises,it is
ORDERED AND ADJUDGED that
1. Defendant, Collier County's Motion for Rehearing and/or Clarification is hereby
DENIED for the reasons stated in Plaintiffs' Response to Defendant Collier's Motion for
Rehearing and/or Clarification including,but not limited to,their express acknowledgment that a
Certificate of Occupancy is subject to a potential revocation depending on the outcome of Cog
qty,Case No.09-3164-CA.
DONE AND ORDERED in Chambers, in Naples, Collier County, this day of
The or1:,';,,,3 rye i-;;;$1.
,2009. dr).:vme;;t n;:� ,..,"OCT -
2 2 caw
Hon.Cynthia A.Ellis by C?y! '4 .y. !-r'fir. rFt
Judge of the Circuit Court :r ., ,;.'
copies lfsh'to;
Margaret L.Cooper,Bag.,Jones,Foster,Johnston&Stubbs,P.O.Box 3475,West Palm Beach,FL 33402-3475;and
Steven T.Williams,Bsq.,Mee of the County Attorney,3301 B.Tamiami Tr.,8th FL,Naples,FL 34112.
P uOCS17.3190b000l\PLTI4X0109DoC
aNQ re motion aiming clarification
•r
IN THE CIRCUIT COURT OF THE 20TH JUDEA CIIZUb
IN AND FOR COLLIER COUNTY,FIAT 26 AMP. ':t
CASE NO.: 08-7794-CA
CRAIG GRIDER and AMBER GRIDER,
Plaintiffs,
vs.
COLLIER COUNTY,a political
subdivision of the State of Florida,
Defendant.
ORDER GRANTING GRIDERS',
MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came to be heard upon Plaintiffs, CRAIG GRIDER and AMBER
GRIDER's Motion for Summary Judgment.
In this action, the Griders challenge an Official Interpretation issued under Collier
County Land Development Code("LDC") Sec. 10.02.02 F by Susan Istenes, Zoning and Land
Development Review Director. In her Official Interpretation,Ms. Istenes opines that there is a
construction setback of 25 feet(principal structures)and 10 feet(accessory structures)from any
preserve located in the Olde Cypress PUD. She defines "preserve" as the Conservation Tract
shown on the plat maps pertaining to Olde Cypress.
The Griders'challenge is two fold:
a First, they assert that Ms. Istenes' interpretation is contrary to the clear
reading of the ordinances.
• Second,they assert that if the LDC is ambiguous and her interpretation is
arguably supportable, it amounts to a change of interpretation and the
County is equitably estopped to apply this change to them.
Craig Grlder and Amber Grier vs.Collier County
Case No.0$-7794-CA
Order Granting()riders'Motion for Summary Judgment
Also at issue is the mode of judicial review — whether review should be via a petition for
certiorari or by a de novo action.
In support of the Motion,the Cinders submitted the following
1. Affidavit of Craig (hider attesting to what occurred in the permitting and
construction of his home and in the Official Interpretation proceedings to support
the equitable estoppel claim.
2. Affidavits or testimony transcript of:
(a) D.Wayne Arnold. He was the Collier County Planning Services Director
when the 1991 LDC was implemented and Ms. ist nes' predecessor in
office. He knew the legislative history,how the LDC changed in 2003/04,
and how the LDC was previously applied to grmidfafhered PUDs before
Ms. Wanes' new interpretation. He testified that Olde Cypress was
gran)fathered under the old rules and earlier interpretation before the
2003/04 amt mdments.
(b) Ron Nino. He was current Planting Manager in 1999/2000 (and Susan
Istenes'supervisor)when Olde Cypress was approved. He was in charge
of the Olde Cypress PUD review and knows how the setback rules were
applied. Olde Cypress grandfathered under the old rules and was
administered under the old rules and earlier interpretation.
(c) Terry Cole. He was the engineer whose firm wrote the Olde Cypress PUD
Document and who was in charge of platting and permitting. He knew
how the County previously interpreted the LDC. Olde Cypress was
planned and approved under the old rules and earlier interpretation.
(d) Jay Westendorffi He was an expert engineer who has been working with
the County for many years in PUD and plat approvals. He knows the
LDC legislative history, the 2003/04 changes, and the County standard
procedures regarding preserve setbacks before this new interpretation. He
also demonstrated that the Cinders' house is more than 25 feet from the
wetland preserve line as opposed to the Conservation Tract line.
(e) ICaren Bishop. She is an expert and permit facilitator who has been
involved in PUD permitting and platting. She knows the history of the
2003/04 LDC amend and County policies on PUDs, platting and
preserve setbacks. Ms.Istenes knows the new interpretation is a change in
the rules under which her many projects were approved. She affirmed that
there are at least 30 other PUDs in similar shape.
2
Craig Griller and Amber Crider w.Collier County
Case No.08.7794CA
Order Grunting Odder&Motion for Summery Judgment
(t) Keith Sowers. He was the builder with Stiles-Sowers Construction, Inc.
who constructed the(hiders'home and received setback information from
the County. County staff told him where to place the house on the
Cinders'lot and the slab location passed inspection on multiple occasions.
No mistake was made.
(g) James Allan. He is a home designer who works with the arehltectural firm
which designed the Gliders' home, coordinated other professionals, and
also received setback assurances from the County.
(h) Douglas McLaughlin. He is SFWMD staff who was fully familiar with
SFWMD requirements. Olde Cypress and the ()riders' house is in full
compliance with all of the SFWMD rules. He con5aned that the SFWMD
Conservation Easement covers both the jurisdictional wetland preserve
and a buffer of 25 feet on average as called for under agency rules.
3. An exhibit package of 46 exhibits backing up the affidavits.
The affidavits and exhibits are=rebutted. In response to the motion,the County submitted the
Affidavit of Susan Istenes, who repeats her interpretation and states that the Gliders have not
moved forward on applying for a variance from her interpretation, but otherwise does not
challenge the facts.
Accordingly,it is clear that the facts are not in dispute and this case is ripe for summary
judgment.
UNDISPUTED FACTS
1. The Griders are the owners of the following described property:
Lot 28,Tract 5,Olde Cypress Unit 3,Plat Book 32,
Pages 84 through 86 of the Public Records of
Collier County.
(Cinder Af£¶2).
2. The side yard of the Cinders' lot abuts an area in the Olde Cypress PUD
development designated on the Olde Cypress plat as a"Conservation Tract" (Glider Aff.¶3).
3
Craig Odder and Amber GWder,s.Collier Coraay
• Case No.01-7794-CA
Order(ranting Orkleas'Motion far Summary Judgment
3. The Conservation Tract consists of wetlands preserves, upland buffering, and
upland preserves. A copy of a plan identifying the Griders'lot(Lot 28,Tract 5)in relation to the
wetlands preserve and upland buffer is depicted on Exhibit"VI
4. Prior to purchasing their lot in 2006, the Griders sought information from the !�
Collier County Land Development staff as to applicable construction setbacks. (Golder Aff.¶5).
5. The Graders were assured that the lot was a corner lot and had two "front yards"
and two"side yards." The construction setback for the side yard abutting the Conservation Tract
was 5 feet,as set forth in the development standard table in the Olde Cypress PUD Document.
(Grtlder Afl~¶6).
6. Prior to purchase,Mr.Odder had an e-mail exchange with County staff. (Ex.42)
Mr.Gilder sent a copy of the Olde Cypress plat map showing his lot adjacent to"Tract A." (The
first page of the plat indicates that"Tract A" is a Conservation Tract. Ex. 17) Mr. Glider also
handwrote on the plat map the word"preserve,"further indicating that his lot abutted a preserve.
In his e-mail, Mr. Crider sought setback assurance that the PUD Document controlled setbacks
and stated:
It appears from the Olde Cypress PUD(Ord 99-92)(relevant pages
attached) that the lot is probably designated Single Family
Detached . . . The lot is also located on a cul-de-sac, so it is my
understanding that I have 2 front yards and 2 side yards,instead of
a rear yard. If that is accurate, then the setbacks for a Single
Family Detached designation would be 25' on the 2 fronts and 5'
on the 2 sides. . . . Also, the rear of the lot is preserve,not golf
course.
Mr. Odder was abundantly clear that his lot abutted a preserve, and that the PUD construction
setback controlled. This was 5 feet because a aide yard abutted the preserve.
- I
'The uhibits reference the Exhibit Package submitted in support ofibe°rideas'Motion for Summary Judgment.
4
Craig Grider and Amber Gridsr vs.Collier Como
Case No.08.1194-CA
Order Cog Grideee'Motion for Summary Judgment
7. The Griders thereafter purchased the lot, hired professionals, had plans drawn,
obtained building permits and constructed their home,all in reliance on said assurances from the
County, spending in excess of$1,500,000. The slab and the house location passed all County
inspections during permitting and construction. (Glider Af.¶7-9) Specifically,
• In July 2006,the builder submitted the construction plans for a building
permit. (Grader Aft¶27)
• In August 2006,the construction plans were approved by all departments
of Collier County. The Zoning Department approved the location of the
proposed home on the lot and all setbacks. Due to the odd shape of the
corner lot, the side yard setbacks were reviewed and approved by two
zoning plan reviewers. (Grader Aft¶28;Ex 18)
• A building permit was issued in September 2006. (Glider Aff.1129)
• In October 2006,the builder poured the foundation slab for the home and
submitted a 10-day "tie-in" or"as built" survey indicating the location of
the foundation. The County again passed the slab inspection, including
the slab's location for setbacks, on November 2, 2006. (Golder Aff.1130;
Ex. 19)
8. The house slab is physically located between 10 and 15 feet from the lot
line/Conservation Tract line. The pool accessory structure is located approximately 5 feet from
the line. The house slab is between 30 and 60 feet from the actual wetlands preserve line.
(Grader Aff.¶31;Exs. 19,20) The Gilder lot is further buffered from the preserve by a retaining
wall along the entire rear property line. (Gilder Aft¶32)
9. After the house was substantially constructed, but prior to issuance of a final
Certificate of Occupancy,the next door neighbor Melissa Showalter,her mother Carol Kolfiat,
and her stepfather,Planning Commissioner Tor Kolflat,made complaints to County staff and the
� �g
Board of County Commissioners ("BCC") as to the side yard setbacks, claiming that special
5
Craig Grider and Amber Grider vs.Collier County
Case No.08--7794-CA
Order Grand%Gardens'Motion for Summery Judgment
setbacks were applicable to lots abutting preserves. They complained that the view of the
preserve was now partially blocked. (Odder Aft¶11,Ex.44).
10. Following the complaints, the County refused to issue a final Certificate of
Occupancy("CO"). The County bas only issued a temporary CO. (Gilder Aft¶39,40).
11. The complaint was first addressed at a BCC meeting in October 2007, without
notice to the Griders. At this meeting,the Guiders were accused of colluding with County staff
to obtain special treatment from code provisions. The BCC appointed a special investigator,
Lawrence A. Farese, Board certified and licensed Florida attorney, to investigate. (Transcript
Ex.21;Gilder Aff.141)
12. At this time,the County served the Griders with a Notice of Code Violation for
violating a "preserve setback." Zoning Director Susan Istenes had taken the position that the
Glider home violated"preserve setbacks." (Gilder Ai£¶42)
13. Mr.Farese investigated the situation and wrote a report dated December 7, 2007
in which he concluded that there was no collusion by the Guiders with stafiy and single-family
homes were exempt from preserve setback requirements called for in today's code. He also
opined that there may have been an abuse of position by Planting Commissioner Kolflat. (His
report is Ex.22—see pages 20-23.)
14. At the next BCC meeting of January 15,2008,without notice to the Griders,the
BCC announced diet with Mr. Farese and requested an Official Interpretation be
obtained from Ms.Istenes pursuant to LDC Sec. 10.02.02 F. (Ex.23;Grider AfE¶45-47)
15. Flaming Commissioner Kolflat had four meetings with County staff on this issue
commencing in June 2007. (Crider Aft¶38; Commissioner Koitat's letter,Ex. 46) Planing
Commissioner Kolfat and counsel for Carol Kolflat and Melissa Showalter continued meeting
6
Craig Grider and4mber Gilder vs.Collier County
Case No.08-77944CA
Order Granting girlies'Motion nor Summary Judgment
with BCC members on this issue on multiple occasions thereafter. (Crider Aft 138;Ex. 45—
BCC calendars) Mr. Kolflat's involvement was confirmed by the County's independent
investigator,Lawrence Farese. (adder Aff.138;Farese Report Ex.22)
16. The adders were initially not given notice of the Official Interpretation
proceeding before Ms. Isles. The County deemed this to be a general request for an
interpretaticar as to the Olde Cypress MD in general,rather than one directed at a specific piece 1�
of property. After hearing of the matter,the Gliders complained,but the County refined to allow
the Guiders to appear and participate before Ms.Intones. (Guider Aft 113;52-57;see also Ex's.
23-27) Instead,they were directed to make any argument in writing to the County Attorney.
17. Susan Iatenes issued an Official Interpretation opining that there was a special
setback of 25 feet for construction of principal structures and 10 feet for accessory structures
from the boundary of any "preserve," which applied to Olde Cypress. She also stated that the
setback was to be measured from the platted Conservation Tract line rather than the jurisdictional
wetland preserve line. (Crider Aft 114;Ex.28,29)
18. Ms.'stones refused to consider estoppel as it related to the(hiders,as she deemed
the request to be only in general as to Olde Cypress,not specific as to the Crriders. (Glider Aft
1(68) She stated at p. l of Ex.29:
Because the official interpretation request is not exclusive to the
single property which is the subject of Ms. Cooper's letter(Glider
Residence) nor did Ms. Cooper ask for an official interpretation
pursuant to Land Development Code (LDC) sections 1.06.00 and
10.02.00 in the required manner, it is my opinion that I am
constrained from specifically evaluating the contents of Ms.
Cooper's letter as part of an official position with respect to her
client's property as part of this interpretation.
7
CraigGrider caul Amber Odder vs.Collier County
Case No.08-7794-CA
Order Creating eiders'Motion far Summary Judgment
19. Ms. Istenes'Official Interpretation was a change front the way that the LDC had
been historically iateprebed and applied. (Cirider Aff. ¶15; Affidavits of Nina, Bishop,
Westcndorf) Ms.Istenes also admitted in a side memo to the BCC that her predecessors did not
interpret the LDC in the same manner as she does. (Ex.30)
20. The Gliders requested infoammation as to when Ms. Istenes had informed staff or
gave staff training in the alleged new interpretation. They were advised that this had never
occurred. (Ex.41)
21. There are 17 other homes in Olde Cypress which were permitted and constructed,
which violate the setbacks as now interpreted by Ms. Istenes. There are 29 other PUD
subdivisions in Collier County which also have similar problems. (Ex.41,43;Guider Aft¶69)
22. According to the new interpretation, the Gliders' house and accessory pool
structure would be in violation of the special preserve setback requirements and would have to
be torn down. (Glider Aff.¶70)
23. The Gliders were served ultimately with notice of the Official Interpretation as
the County deemed the Interpretation affected their property. They were given an opportunity to
appeal. (Glider Aff.172;Ex.31)
24. The Gliders exhausted administrative remedies by appealing the Official
Interpretation under procedures set forth in LDC Sec. 10.02.02. However,in their papers,the
Gliders reserved all objections to the proceedings including estoppel arguments and
constitutional claims. (Gilder AlE¶73)
25. At the hearing before the BCC,the Chair ruled that the issues to be heard were as
to Olde Cypress setbacks in general and that site specifics as to the Glider home and estoppel
8
Craig Grids and Amber Grlder vs.Collier County
Cove No.08-7794CA
Order Granting OTIder'Motion for Summary Judgment
issues would not be heard. (Odder A 184) At the BCC hearing, the following ruling was
made by the BCC Chair during opening statement
MS. COOPER: . . .The third reason that rd hike to address is that
the Gliders, when staff approved the Gridera'house,you're going
to see that the Gliders'house was approved in the building permit
stage,the site plans were submitted,it was this—the location of the
house on the site plan and the setbacks were approved by zoning
staff no less than four times specifically. The plan—
CHAIRMAN HENNING: May I stop you there,please.
MS.COOPER: Yes.
CHAIRMAN HENNING: Number throe has nothing to do with
the official interpretation.
MS. COOPER: Well, rd like to preserve that argument for the
record, and—so we'll just sort of throw it in there for the record.
And I understand your position,but I'd like to perverse that for the
record.
But I also think it's important because what it demonstrates,
in addition to an estoppel argument, I think was what you were
talking about,Commissioner Henning—but what it demonstrates is
that this is how staff interpreted it, and so—and there had never
been any training on any change of interpretation.
(Transcript p.272)
r e •
MS.COOPER ...
Keith Sowers and Jim Allen will come up. Keith Sowers
was the builder. He will testify how may different times this site
was approved, particularly the 10-day tie-in survey. After the
foundation is poured, they have a 10-day tie-in survey that goes
back to the county and they actually circle all of— the zoning
department circles all the measurements and they okay it,and they
—before you go vertical, and so that was the last approval on the
setbacks before it went vertical.
9
Craig Grier and Amber Gridvs.Collier County
Case No.08-7794CA
Order Granting Oddest Motion for Summary Judgment
CHAIRMAN H NNINK}: Again,Ms. Cooper,this has nothing to
do with the official interpretation.
MS.COOPER: Yes,sir. All right.
(Transcript p.275)
26. There was a one-hour time limitation for the Gliders' opening statement and nine
wig to testify.
27. On September 10, 2008, the BCC, sitting as the Board of Zoning Appeals,
affirmed the Official Interpretation issued by Ms. Istenes. The BCC ruling did not address the
estoppel issues. (Ex.40)
28. The Official Interpretation, although purportedly limited to Olde Cypress, may
affect a large number of residents in Collier County.
APPLICABLE PROVISIONS
OF LAND DEVELOPMENT CODE
Native Vegetation Protection and the 1991 LDC Provisions
In 1991, Collier County adopted a Unified Land Development Code ("1991 LDC") by
Ordinance No. 91-102. The 1991 LDC had two divisions dealing with native vegetation
preservation found in separate parts of the LDC — Division 3.9 (Preservation Standards) and
Division 3.2(Subdivision and Platting Standards). (Ex."6"and"7")
The County Preservation Standards (Division 3.9) simply required that a certain
percentage of native vegetation be retained or` served"during the development process. See
1991 LDC Div.3.9,in perdnent part•.
10
Craig Grlder and Amber Grtdtr va.Collis Courtly
Case No.08-7794-CA
Order Granting Gliders'Motion for Summary Judgment
Division 3.9 Vegetation Removal,Protection and Preservation
• • •
3.9.5.5. Preservation standards.
• • •
3.95.53. All new residential or mixed use developments
greater than two Ya acres. . .shall retain 25 percent
of the viable naturally functioning native vegetation
on-site....
Under the County's Growth Management Plan, the Comkty's 25 percent requirement
would be satisfied by meeting the South Florida Water Management District("SFWMD") and
Army Corps of Engineers ("ALOE") preservation requirements where there was agency
jurisdiction over the wetlands. (Af Karen Bishop)
As to buffering of native vegetation preservation or setbacks from preserve area, the
County Subdivision and Platting Standards(Division 32)only required that let lines be platted a
minimum of 25 feet from any native vegetation preservation. However,when there was agency
jurisdiction, the 1991 LDC deferred to the agency buffering rules. The 1991 LDC Div. 3.2
contained multiple provisions deferring to agency rules:
Division 3.2 Subdivisions
• • •
3.2.8.3. Required improvement% . Any required
improvements shall be designed and constructed in
accordance with the design requirements and
specifications of the entity having responsibility
for approval, including all federal, state, and
local agencies. ..
• • •
11
Crag°rider and Amber Odder w.Collier County
Casa No.084 794-CA
Order Gig(hiders'Motion for Stmmnary Judgment
3.2.8.3.4. Buffer areas. Subdivisions or developments shall
be buffered for the protection of property owners
fiom surrounding land uses as required pursuant to
division 2.4.
* * *
Separation shall be created with a landscape buffer
strip which is designed and constructed in
compliance with the provisions of division 2.4.
Buffers adjacent to protected/preserve areas
shall conform to the requirements established by
the agency requiring such buffer.
* * *
3.2.8.3.12. Parma ,protected areas, preservation areas,
conservation areas,recreadonal areas,and school
sites.
1. Parks, protected areas, preservation
areas,conservation areas. Parks,protected
areas,preservation areas,and conservation
areas shall be dedicated and/or conveyed
in accordance with applicable mandatory
dedication requirements and regulations
of federal,state and local agencies.
3.2.8.4.7. Easements(Platting].
✓ * •
3. Protected/preserve area and easements. A
nonexclusive easement or tract in liver of
Collier County, without any maintenance
obligation, shall be provided for all
"protected/preserve" areas required to be
designated on the preliminary and final
subdivision plats. Any buildable lot or
parcel subject to or abutting a
protected/preserve area required to be
designated on the preliminary and final
subdivision plats shall have a minimum
25-foot setback from the boundary of
such protected/preserve area In which no
principle [sic] structure may be
constructed. Further, the preliminary and
final subdivision plats shall require that no
12
Craig Crider and Amber Under ve.Collier Cosa*
Case No.08-7794-CA
Order Granting(3riders'Motion for Summary Judgment
alteration,including accessory structures,fill
placement, grading, plant alteration or
removal, or similar activity shall be
permitted within such setback area without
the prior written consent of the development
services director;provided,in no event shall
these activities be permitted in such setback
area within ten feet of the protected/preserve
boundary unless the above setbacks are
accomplished through buffering pursuant
to section 3.2.8.3.4.
In both her Official Interpretation and in her Affidavit,Ms.lstones cites Sec.3.2.8.4.7 as support �I
for her contention that there is a 25-foot construction setback in the 1991 LDC. However,this is
a lot line setback--not a construction setback. She also omits the key words"unless the above
setbacks are accomplished through buffering pursuant to Section 3.2.8.3.4." Subsection 3.2.8.3.4
refers to agency buffers to jurisdictional preserves. See Istenes Affidavit in Opposition to
Summary Judgment 17,where she omits the critical language by supplying the notation" . . ."
See also p. 3 of her Official Interpretation(Ex.29)where the same omission occurs. SFWMD
requires that its jurisdictional wetlands be set back or buffered from development by 25 feet on
average,which could also be less if buffered by structures such as retaining walls. (Affidavits of
McLaughlin,Bishop)
The 1991 LDC was administered by County staff to require that lot lines be drawn on a
plat at least 25 feet from preserve areas unless there was state and federal wetland jurisdiction.
In that case, the County deferred to the required SFWMD/ACOE buffer to act as the lot line
setback. In the 1991 LDC, there were no additional provisions for construction setbacks to
preserve areas after platting. Construction setbacks to the platted property lines were governed
by the development regulations and "yard" requirements found either in the LDC generally(for
non-PUD plats)or in the PUD Document specifically(for PUD plats),whichever was applicable.
13
&g Griller and Amber Crider vs.Collar County
Cue No.05-7794-CA
Order Granting Ganders'Motion A r Summary Judgment
(See Affidavits of Bishop,Westendorf Nino) Ms.Istemes admits that her predecessors in office
did not interpret or administer the 1991 LDC as she now interprets it. (Ex.30)
Effect of Planned Unit Development(SPUD")Approvals
The 1991 LDC also contains provisions for Planned Unit Development("PUD")Zoning
under Sec. 2.2.20. (Ex. "8") Approved PUDs were deemed special zoning districts.
Development regulations pertaining to the particular PUD plan of development were generally
written in the PUD Document. Upon approval, a PUD district constituted its own separate and
non-conventional zoning district with its own development standards. See, in particular, 1991
LDC Sec.22.2022.
As a matter of routine development practice after a PUD subdivision was platted, the
construction setbacks would be those set forth in the development standards in the PUD
Document These specific construction setback provisions found in PUD Document are
modifications of and override construction setbacks otherwise found in the LDC. See LDC Sec. ,
2.220.2.1. The Olde Cypress PUD has such a table of construction setbacks.
Olde Cypress PUD Zoning Approvals and
Grandfathering of Old.Cypress
The Olde Cypress PUD was initially approved in 1999 by Ordinance No. 99-92 and
thereafter replaced by Ordinance No. 2000-37 and Ordinance No. 2000-53 (to correct a
scrivener's error). (Exhibit"15")
Olde Cypress contains native wetlands and uplands over which SFWMD and ACOE
exercise jurisdiction. The SFWMD and ACOE permits delineated both the jurisdictional
wetlands preserve boundaries and the surrounding buffer area, and a conservation easement
exists over both. See Exhibit 96."
14
Craig Grtdor and Amber Grtder vs.Collier Comrry
Case No.08-7794-CA
Order Gran d%Glides'Motion for Summitry Judgment
In accordance with the 1991 LDC requirements, the Olde Cypress PUD Document
confirmed that the County's 25% native vegetation requirement was satisfied by the larger
SFWMD wetlands preservation. The PUD Document reads:
• * •
4.06 NATIVE VEGETATION RETENTION
Pursuant to Policy 6:4.7 of the Conservation and Coastal
Management Element [of the Collier County GMP], the native
vegetation retention requirements for the project, which are
twenty-five (25) percent of the gross land area [naturally
functioning native vegetation], are deemed to be satisfied by the
176.2 acre preserve, park and wildlife sanctuary [the SFWMD
jurisdictional wetlands and uplands preserve], depicted on Exhibit
"A"of the general plan of development for OLDE CYPRESS.
* • •
(Ex. 15).
The PUD Document required that both the preserve and the uplands buffer be platted as a
Conservation area in accordance dance with agency permits. The Olde Cypress PUD Document also
defers to agency rules(lime the LDC)and specifically states that the SFWMD and ACOE permit
requirements control how development takes place. The PUD Document expressly distinguishes
between wetlands and buffer zones — both of which are to be dedicated in a conservation
easement. See,in particular,the PUD Document(Ex. 15):
9.11 ENVIRONMENTAL STIPULATIONS
* • •
B. Prior to commencement of construction, the
perimeter of the protected wetlands and buffer zones shall be
staked and roped to prevent encroachment into the preserve areas
identified in the South Florida Water Management District Permit,
subject to the approval of the South Florida Water Management
District (SFWMD) and Collier County Development Services
staff. The staking and roping shall remain in place until all
adjacent construction activities are complete.
15
1
Craig Golder and Amber Crider vs.Collier County
Case No.08-7794-CA
Order Granting Glides'Motion for Summary Judgment
C. Wetland preservation/mitigation areas, upland
buffer zones, and/or upland preservation areas shall be
dedicated as conservation and common areas in conservation
easements, as well as on the plat, with protective covenants per
or similar to Section 704.06 of the Florida Statutes,provided that
said covenants shall not conflict with South Florida Water
Management District Permit No. 11-01232S.
a Development shall be pursuant to the existing
South Florida Water Management District Permit No. 11-
01232S, and U.S. Army Corps of Engineers Permit No.
1989909601PMN. Any amendments to these Permits shall be
subject to review and approval by Current Planning Environmental
Staff.
E. Buffer zones adjacent to the preserve areas shall be
pursuant to South Florida Water Management District Permit
No.11-012325.
The setbacks for construction of single family homes and other structures inside the
platted lot lines are set forth in a table in the PUD Document The sideyard setbacks for single
family detached homes are 5 feet. See Sec.7.05 and Table II of the PUD Document (Ex. 15)
Olde Cypress Plats
At the time of platting, the County was provided SFWMD permits and other plans
delineating the boundary lines of both the buffer area and wetland preserve. Exhibit "1" is an
example of the type of plans required by the County indicating the agencies preserve and buffer
areas.
Both the jurisdictional wetland preserve and the uplands buffer were contained in the area
of the plat designated as a Conservation Tract The lot lines or residential parcel lines were
drawn on the plats abutting,but not protruding into,the Conservation Tract. (Ex. 17) Although
other plans approved by the County (such as Exhibit I) distinguish between the wetlands
preserve and the buffer area,the plat itself does not show the distinction. It is=rebutted that the
16
1
Craig Grader and Amber Grader vs.Collier Comfy
Cue No.08-7794-CA
Order Granting Gliders'Motion for Summary Judgment
Odder lot is more than 25 feet from the actual wetlands preserve. The plat,however,only shows
the residential parcel pots)lot and Conservation Tract lines. The LDC did not require that the
wetland preservation lines inside the Conservation Tract be indicated on a plat.
After Olde Cypress was platted, the project was developed first with infrastructure
improvements(site plan approvals)and thereafter individual home construction(building permit
approvals). The lot line location had already been setback from the wetlands preserve by the
required agency buffer in the platting stage. Accordingly,County staff reviewed only the PUD
Document development chart for construction setbacks during the building permitting process.
2003 LDC Amendments and New
Construction Setbacks to Preserves
In the year 2003, Division 3.9 of the 1991 LDC (Vegetation Removal, Protection, and
Preservation) was amended to require an absolute 25-foot construction setback to preserves.
Ordinance No. 03-37. (Ex. 9) This requirement was in addition to a lot line setback required
during the platting stage. There were, however, exemptions built into the Ordinance for
grandfathered developments. Ordinance No.03-37,in pertinent part,reads:
DIVISION 3.9. VEGETATION REMOVAL, PROTECTION
AND PRESERVATION
Sec. 3.9.5. Vegetation removal, protection and preservation
standards.
Ce .
3.9.55.6 NativcPrve o
4 Rendred Sstbac'.t to Prrmes All W 'fines s ailh
hi a minimum 2S-foot from_ the tun o any
preserve. Accary all other site alterations shall
r a minimum 10-foot setlk born ► of am►
pg�grv� Tie shall bs no sits alterations within the first 10 feet
iaoertt to env tmeservs�unle�it can be demongd'ated
not adversely t e inks ,of preserve►. (i-e.Pill may
b�,a, rgygd p w tI in 1Qfeet of p gye but
17
•
Craig Grader and Amber Grid w.Collier County
Case No.08-7794-CA
Order Granting Crider,'Motion for Summary Judgment
may,not be v m be nl within 10 feet of a wetland
pave.unless it Can be demonstrated that ,not n ptively
ci nnaet. g wetlandl
S t A
6. Minns. ,�,pp € velnnrnent orders authoaizlna
site i i.e..as SDP or FSP and,on a case by Caen basis
a PSP,that are submitted sad deems dent p$or do J�q 16.
02 03. 8rat to comely with the new �+agale�ons
legion 3.9.5.5.6 3.9.5.5.6 onJune 16.2003.
[Underline indicates additions to the 1991 LDC].
Because there was an exemption created for FSP—Final Subdivision Plats--submitted
prior to June 16, 2003, this amender did not apply to Olde Cypress, which was previously
platted consistent with its own zoning district containing its own specific construction setback
2004 LDC Amendments and
Removal of Deference to Agency Buffering
In 2004, the LDC was again amended as it relates to preserves. This amendment
(Ordinance No. 04-08) dealt with both Division 3.9 (Native Vegetation Preservation) and
Division 32(Subdivision and Platting). (Ex, 10,11) In Division 3.2(Subdivision and Platting),
the deference to agency requirements was eliminated and the platting requirements were
amended to remove the provision that agency buffering(25 feet on average)could substitute for
the 25-foot lot location setback. See the following pertinent part of Ordinance No. 04-08.
(Ex.10)
32.8.4.7 Easements.
3. Pratected/f vrererve area and easements. A nonexclusive
casement or tract in favor of Collier County, without any
maintenance obligation, shall be provided for all
"protected/preserve" areas required to be designated on the
preliminary and final subdivision plats . . . Any buildable lot or
18
Craig Grier and Anther Grfdir vs.CoJller County
Case No.08-7794-CA
Order Granting Orders'Motion for Summary Judgment
parcel subject to or abutting a protected/preserve area required to
be designated on the preliminary and final subdivision plats, . . .
shall have a minimum 25-foot setback from the boundary of such
protected/preserve area in which no principle struadue may be
constructed. . .
regulations re .udiaa; ►e setlhsekc and buffers are located in
�9 and shall be emplicable for all if
they p or simply identified by recorded oonservatkm
moat
[Strlkcthrough and underlining indicates changes for the 1991 LDC].
The 2004 amendment also mandated for the first time an easement over preserve areas in
favor of Collier County(Ex. 11,Sec.35.7.0.) The Olde Cypress Conservation Tract(containing
both preserve and buffer) is dedicated to the homeowners association. It is subject to a
conservation easement in favor of SFWMD,not Collier County.
In her Official Interpretation, Ms. Istenes fails to note that the deference to agency
buffering(instead of a 25 foot lot line back)was removed and replaced with language mandating
that agency buffers were in addition to the 25 foot setback. Rather, Ms.Istenes was under the
mistaken belief that Section 3.2.8.4.7 remained=changed in the LDC since 1991. She stated in
her Official Interpretation(Ex.29) that
First to provide some background, in 2004, Ordinance No. 04-41
effectively "reorganized" the entire LDC without changing its
content.
s • i
This provision [32.8.4.7] was originally found only within the
subdivision standards (Division 3.2, Subdivisions, Ordinance No.
91-102) but was later (2003) copies and moved to a separate
'preserve area standards' section of the LDC, specifically
subsection 3.9.9.5.6.(4), as an amendment to Ordinance No,. 91-
102,adopted on June 16,2003. This text relocation did not alter
the same preserve setback requirements of 25 feet and 10 feet
adopted in 1991.
19
CYdg Grader and Amber Grider vs.Collier County
Case No 08.7794-CA
Order Granting()rides'Motion for Snmmnly Judgment
* • •
Because this 2003 amendment did not modify the setback
requirement which as been in the LDC slice 1991, the
exemption language set forth in the 2003 amendment does not
apply to the preserve setback requirements, which still apply to
Olde Cypress today.
To the contrary, the 2003/2004 amendments were a significant change which eliminated the
deference to agency buffering in lieu of a 25-foot absolute setback at the platting stage and added
a 25 foot construction setback. The Olde Cypress PUD and plats,however,were grandfathered
from the 2003104 LDC amendment.
2004 Single Family Exemptions
Ordinance No.04-08 also amended Division 3.9(Native Vegetation Preservation)adding
many provisions dealing with mitigation and details for preservation. The amendment also
clarified that not only grandfathetvd platted subdivisions were exempt from the new
requirements, but all single family residences were exempt. The LDC was also recodified by
Ordinance No.04-41. (Ex. 11,Sec.3.9.7.4 A and B.) Division 3.2 is now located in Chapter 10,
Section 10.02.04. Division 3.9 is now renumbered and located in Chapter 3, Section 3.05.07.
(Ex. 12)
The recodified version(Section 3.05.07)(Ex. 13)reads in part:
3.05.07 Preservation Standards.
All development not specifically exempted by this ordinance shall
incorporate the preservation standards...
A. General
2. ...native vegetation. ..shall be set aside as
preserve areas,subject to requirements of 3.05.07H.
Single family residences are exempt from See.
3.05.07.8
20
Craig Griller and Amber Grader vs.Collier County
Gee No.08-7794-CA
Order Gauging' adders'Motion for Summary Judgment
H. Preserve Standards
* * *
3. Required setbacks
* * *
a. ...25 feet for principal structure structure...
* * *
4. Exceptions
a. Single family residences are
subject only to applicable
vegetation retention standard in
3.05.07.
b. Application for development
orders authorizing site
improvements...such as a FSP..
. prior to June 19, 2003 are not
required to comply with the
provisions of section 3.05.075.
This language is clear and unambiguous, as Mr. Farrar noted in his report. Single family
residences and previously platted subdivisions are exempt from the 25-foot preserve setback.
In addressing the single family exemption in her Official Interpretation, Ms. Istenes
simply opines that the "intent"was that single family residences did not have to comply with
preserve easement requirements,but there was no intent to exempt single family residences from
the 25 foot construction setback. However, the Court must look to the language of the
ordinance. There is a clear, unambiguous exemption for all of Subsection H for single family
residences. Accordingly, not only is the Olde Cypress PUD plat grandf , but all single
family residences are exempt from the new 2003104 construction setbacks.
Change of Interpretation as to the Preserve Lines
vs.Conservation Tract Lines
Under Ms. Istenes' interpretation, the County is to measure lot line and construction
setbacks to preserves from the Conservation Tract lines,as opposed to the jurisdictional wetlands
21
Craig aridar and Amber Gilder vs.Cellist County
Case No.08-7794-CA
Order Granting Oriders'Motion fir Spy Judgment
preserve lines. Ms.Istenes failed to address or reconcile that the County had approved the Olde
Cypress lot line location to be abutting the Conservation Tract on the plats—and set back only
from the actual preserve. As noted in the affidavits,this was the standard way of doing business
in Collier County at that time. Further,the clear language of the LDC requires setbacks from a
preserve—not the Conservation Tract line.
The Gliders have submitted numerous Affidavits explaining how the development
approval process worked under the old 1991 LDC when Olde Cypress was approved. The
25-foot lot line setback was measured from the jurisdictional wetland preserve line and was
subject to further adjustment if governed by agency buffering rules(25 feet on average).
WHETHER MS.ISTENF.S'
INTERPRETATION WAS CORRECT
For the reasons stated above, the Court finds that Ms. Istenes' new interpretation is
incorrect under the clear and'unambiguous language of the LDC. Although under today's LDC
there is an absolute 25 foot construction setback from any preserve over which the County has an
easement,this does not apply to grandfatheed PUD's like Olds Cypress which were approved
prior to June 2003. The LDC has a clear, unambiguous and unequivocal exemption for
grandfathered developments and single family residences. Also,it is clear that setbacks are to be
measure from the agency wetland preservation lines,not conservation tract lines.
The Court's interpretation is supported by rules of statutory construction. As held by our
Supreme Court consistently since 1973, "[z]oning regulations are in derogation of private
property rights of ownership . . . and should be interpreted in favor of the property owner."
Rinker Materials Cam. v. City of North Miami. 286 So. 2d 552, 554 (Fla. 1973); iligtIMILY.,
Brevard County Bd.of Cam's 390 So.2d 445(Fla.5th DCA 1980)("zoning regulations are in
22
Craig Guider and Antbsr Grids vs,Collier County
Case No.08-1794-CA
Order Greg°riders'Motion for Summary Judgment
derogation of private ownership and should be interpreted in favor of the property owner");QV
of Iurami v. 100 L.inoaln Road. Inc,, 214 So. 2d 39 (Fla. 3d DCA 1968) (same); Colonial
A , L_P. verity of Deland. 577 So. 2d 593 (Fla. 5th DCA 1991) (where a city's
interpretation of its zoning and architectural guideline ordinances were adverse to the
interpretation of the land owner seeking to develop the property, "any doubts should be
construed in favor of the property owner"). Since Ms. Istenes' new interpretation essentially
takes away 20 feet of buildable land,her interpretation violates this rule.
Often, local gove ' attempt to level the playing filed by taidng the legal position
that local government is entitled to an alleged presumption of correctness concerning its
interpretation and application of local land use ordinances, citing to authorities involving the
Administrative Procedures Act ("APA"). Under the APA, a state agency's
construction/application of an ordinance by the agency charged with its administration is entitled
to great weight, and the courts will not overturn an agency's interpretation unless it is clearly
erroneous. PW Veulwcsjnc.v.Nichols.533 So.2d 281 (Fla. 1988)(Florida Public Service
Commission's ruling entitled to a"presumption of correctness.") However, Florida Statutes §
120.52(1)specifically provides that the APA—and therefore the"presumption of correctness"—
does not apply to municipalities or counties unless "they are expressly made subject to [the
APA] by general or special law or existing judicial decisions." Florida Statutes § 120.52(lXc).
A municipality or county that has not been expressly been made subject to the APA by general
or special law or existing judicial decision cannot claim agency status,nor can it claim a right to
a presumption of corm. Sys IMackaSkwilwilftnaaasiatxsainum 421 So.2d
684 (Fla. 4th DCA 1982) (holding that the City of Miramar could not claim "agency" status
because no law or judicial decision designated that city as such).
23
rag o,ider and Amber Odder vs.Collier County
Case No.05-7794-CA
Order Granting adders'Motion for Summary Judgment
This Court likens the situation to an appeal where an appellate court reviews an
interpretation of a statute made by a circuit court judge. Rulings of law are reviewed de novo.
Even when it comes to agency action,judicial deference will only go so far. Ososdo v.Boar&of
898 So. 2d 188 (Fla. 5th DCA 2005) reminds us that a
court is not required to defer to a construction that is unreasonable or is clearly erroneous.
Agency interpretations that fly in the face of the plain maiming of the statute cannot be upheld
lg„gg Palm Beach County Canvas ing By,? Harris, m So. 2d 1273, 1282 (Fla. 2000)
(holding that it is only if statutory language is ambiguous that a court must resort to rules of
construction to determine legislative intent); FIolly v. A144, 450 So. 2d 217, 219 (Fla. 1984)
(same); pity off,Corsi Gables Enf n ncnt B L v,, . 967 So. 2d 963 (Fla. 3d DCA 2007)
(plain language or an ordinance prevails).
Where the language of a development order or ordinance is plain and unambiguous,there
is no room for construction or interpretation. I' ga Pup ea off 1y.Affairs.
623 So. 2d 771 (Fla. 1st DCA 1993), au Boyntop v. Canal Auth.. 311 So. 2d 412 (Fla. 1st
DCA 1975). A reviewing body must not insert words or phrases into municipal ordinances to
express intentions that do not appear in the text of the ordinance. Nnkff_Mogieleaga,Sk
gf North Miami.2B6 So.2d 552(Fla. 1973);Sag TymeJnc. v.Cobem. 659 So.2d 1064, 1067
(Fla. 1995); Levin v 734 So. 2d 1191, 1194 (Fla. 2d DCA 1999) (holding that the
meaning of a statute is to be gleaned from its plain language.);hueidwalsio, 141 So. 2d
803, 806 (Fla. 2d DCA 1962)(where language of statute is clear,reasonable and logical,courts
should not search for excuses to give words a different meaning.) Thus,the Court need not defer
to Ms.Istenes'unsupported statement as to the County's Intent"as it relates to the single family
exemption.
24
Craig Grids,and Amber OMderva.Collier County
Cue No.08-7794-CA
Order Granting Gridera'Motion for Summary Judgment
Lastly, rules of statutory construction require that various provisions of ordinances be
read in pwl materla and construed together,giving meaning to all provisions. Qv.Florida
D ep't of Labor and F.mplovment Sao,, 899 So. 2d 1074, 1078 (Fla. 2005); Ortiz v. Dep't of
Health.Bd.of Meeiae.882 So.2d 402,406(Fla.4th DCA 2004). Wilensky v.Fields,267 So.
2d 1, 4 (Fla 1972). Significance and effect must, if possible, be accorded every word,phrase
and sentence of a statute. Words are not to be construed as surplusage if there is a reasonable
construction which will given them force and meaning. Hechtman v.Nations Title Is. Of New
Xerk, 840 So. 2d 993, 996(Fla. 2003);in A.W. v.Dept of Children and Fpmily Serv., 816
So. 2d 1261, 1263 (Fla. 24 DCA 2002); CRC v. Porte y. 731 So. 2d 770, 772 (Fla. 2d DCA
1999). Statutory interpretations that render statutory provisions superfluous are disfavored.
aggialmgagiggrAAKIlligert 731 So.2d 699,701 (Fla. 1st DCA 1999). Ms.Istenes
ignores the deference to agency buffering found in the 1991 LDC as well as the difference
between "preserve"versus"buffer"versus "conservation tract"—which are replete throughout
the 1991 LDC and the PUD Doctmnent.
In applying those rules,this Court finds that the historical interpretation of the 1991 LDC
applies—not Ms. Istenes'change of interpretation in 2008. The 1991 LDC deferred to agency
buffering for lot line placement on the plats and distinguished between preserves and
conservation tracts. After platting, the PUD construction setbacks govern. PUD's approved
prior to June 2003 are governed under the County's long standing interpretation under the clear
gr-'dfathered clauses in the 2003/04 amendment. As noted by the Chair at the BCC meeting,
Olde Cypress is controlled by the 1991 LDC and not the 2003/04 amendments.
CHAIRMAN HENNING: You're up there, so might as well ask
you. Ms. Cooper,I think you're absolutely correct about the 2003
amendment. It has nothing to do with this PUD,because it was at
25
•
Craig Gridsr and Amber(rider vs.Collier County
Case No 08-7794-CA
Order Cog Grider&Motion for Snaimury Judgment
the time of plat that the clock stopped in this case; is that a fair
statement'?
MS. COOPER: Fm waiting to hear the context that you're putting
it in.
CHAIRMAN HENNING: Well, at long of your pion was
about the'03 amendment to the development standards in our Land
Development Code,but Olde Cypress was platted in'99,2000?
MS.COOPER: Correct.
CHAIRMAN HENNING: So Fm just saying you're absolutely
correct on that
MS.COOPER: Thank you.
(Transcript p.303-04)
WHETHER THE COUNTY IS
ESTOPPED FROM
CHANGING ITS INTERPRETATION
Assuming that there was some ambiguity,Ms. Iatenea admitted in her separate memo to
the BCC that her interpretation is a change from the historical manner in which the County
interpreted and applied its ordinances. (Ex. 30). This admission is bolstered by the many
unrebutted affidavits that the Gliders supplied. It is clear that the Glider residence was approved
under the old interpretation—as 17 other homes in Olde Cypress and 29 other PUDs in Collier
County were handled.
Although courts indicate that the doctrine of equitable estoppel is used rarely avian
local governments,Florida courts have frequently applied the doctrine to protect property owners
who have relied upon the permitting actions of local authorities. fig, &IL, Hollyw
l Co. v. City of Hollywood. 329 So. 2d 10(Fla. 1976); 4akolskv v. City of Coral Gables,
151 So.2d 433(Fla. 1963);Franklin County v.I.msume g .Ltd..430 So.2d 475(Fla. 1 st
DCA 1983);Town of Lama m al Home(om..309 So.2d 571 (Fla.2d DCA 1975);gly
26
Craig Grider and Amber&tar vs.Collier County
Cam No O8-7794CA
Order Granting Gridare'Motion lbr Summary ary Judge not
dliggdarieralyabeguiles,289 So.2d 424(Fla. 3d DCA 1974);faly.pnaufled0ALskev.
G,427 So.2d 239(Fla.4th DCA 1983).
A vested right is created when a litigant has reasonably and detrimentally relied upon
existing law or an interpretation thereof,creating the conditions of estoppel. gswity Ressources.
hma,Sammonon,643 So.2d 1112(Fla. 1st DCA 1994);gitunefindele.Lakemcgm,
427 So.2d 239(Fla.4th DCA 1983). As held by the Second District Court of Appeal in Tp gw
gf g9 v.Inmcrrial Hom1r 309 So.2d 571,573(Fla.2d DCA 1975):
jargon Stripped of the judges
it with,�tery of estoppel to nothing more
than an application of the rules of fair play. One party will not be
permitted to invite another onto a welcome mat and than be
permitted to snatch the mat away to the detriment of the party
induced or permitted to stand thereon. A citizen is entitled to rely
on the assurances or commitments of a zoning authority and if be
does,the zoning authority is bound by its representations, whether
they be in the form of words or deeds.
The doctrine of equitable estoppel will be invoked against a municipality when a property
owner:
(a) in good'kith;
(b) relies upon some act or omission of the government and
(c) has made such a substantial change in position or has incuned such extensive
obligations and expense that it would be highly inequitable and ugjust to destroy
the right acquired."
a(citing Hollywood v.Hollywood Beach Hotel Co..283 So.2d 867,869(Fla.4th DCA 1973);
rev'd in part on other grounds,Hollywood Beach Hotel „o v. City►of Hollywood.329 So.2d 10
(Fla. 1976)). Florida courts have been especially willing to apply equitable estoppel in cases
where the landowner acquired property and spent substantial sums of money in reliance on
zoning regulations. liongtualnatg,212 So. 2d 622 (Fla. 1st DCA 1968); Town of Largo v.
27
•
Craig Grids.and Amber Grid r vs.Codliw County
Case No.08-7194CA
Order Gracdag(hiders'Motion for Summary Judgment
Imperial Homes Corp..18 Rresar v. Britton. 75 So. 2d 753 (Fla. 1954);Jones v. U.S. Steel
Credit Coro.. 382 So. 2d 48 (Fla. 2d DCA 1979); Frnklin County v. Leisure Proportiea_Ltd..
430 So.2d 475(Fla. 1st DCA 1983);F lyliceouroes.Inc.v.C v of Leon.643 So.2d 1112
(Fla. 1st DCA 1994)). C of Lauderdale Lakes v.Corny 427 So.2d 239(Fla.4th DCA 1983).
On point is ailyst 1,Anderdeelaksi, 427 So. 2d 239. There, a developer purchased
property and developed portions of it consistent with zoning regulations. After various city
departments and officials processed site plans for commercial development of the remaining
land, and indicated that they were consistent with the commercial zoning present on the
remaining property, the developer then expended significant time and money to prepare the
property for development Subsequently,the City refused to approve the developer's site plan
and further enacted ordinances designed to prevent the commercial development—primarily in
response to the demands of nearby residents. The Fourth District Court of Appeal ruled that
because the developer had relied in good faith (and to his substantial detriment)upon the thew
es well as the statements and actions of the City's departmental staff,
exhsdng zoning ordinance, ty e
the developer had acquired a vested right to develop the property consistent with the commercial
site plan. ,at 239.
Vested rights may also arise in Florida, even in the absence of a showing of equitable
estoppel,when a defendant municipality has acted in bad faith in taking deliberate measures to
deny a permit,license or other approval to develop real property. City of Marsate v.Amoco Oil
X, 546 So. 2d 1091 (Fla 4th DCA 1989);Allen v2 F.B. Davis.Inc. 143 So. 658 (Fla.
1932). In fie, 546 So.2d 1091,the district court of appeal ruled that where a city denied a
development permit that appeared on its face to satisfy the required criteria, and then attempted
to pass ordinances that would authorize a denial of the permit, such actions evidenced bad faith
28
Craig Crider annd4mber Ord vs.Collier County
Case No.08-7794-CA
Order Granting Gliders'Motion for Summery Judgment
on the part of the city and created a vested right to develop the property consistent with the
permit application. It This also seems to apply here.
A government entity is not estopped from enforcement of its ordinances by an illegally
issued permit that is issued as a result of mutual mistake of fact This applies generally where
the original mistake was made by the applicant and the revocation does not result in great
economic hardship to the pesmittee. Dade Cotner v. ngiikmdatek_Inc.. 257 So. 2d 291
(Fla. 3d DCA 1972). However,where a city's original grant of a permit is equally the result of
conduct of the city's representatives, the city may be equitably estopped from revoking the
building permit. Mistakes of fact which are in part the city's own responsibility still give rise to
an estoppel. City of Coral Gables v.Puiggns,418 So.2d 367(Fla.3d DCA 1982);Holy
Beach Hoba1 Cow City of Hollywood.329 So.2d 10(Fla. 1974 That principle would clearly
apply.
More importantly, in this case, there was no mistake in the issuance of the (hiders'
permits. They were approved by no less than Four separate County staff employees. What is
involved here is a change of iatatpretatlon—not a mistake.
Estoppel applies to a change of interpretation. In Ftolinson v. City of Key Weft,875 So.
2d 659 (Fla. 3d DCA 2004), the Third District Court of Appeal overturned an earlier
staftattorney interpretation that allowed short-term rentals so long as the unit was rented for
less than 50%of the year. The Third District Court of Appeal found that the past rental practices
in accord with the earlier interpretation were grandfathered against new rules later adopted.
Ns Sarasota Cty.V.Nat'l.City Bank of Cleveland.Oh.,902 So.2d 233(Fla.2d DCA 2005).
29
Cnrtg Gridrr and Amber Gilder vs.Collier COWU,
Case No.0$4794-CA
Order tag Gridma'Motion for Summary Judgment
Accordingly, the Court finds that even if Ms. Istenes' Interpretation was plausible, the
County would be estopped from applying this interpretation on a retractive basis to Mr.Glider
or others who are similarly situated.
ALLEGED RIGHTS
OF THE NEIGHBORS
As to the neighbor's complaint that the view of the preserve has been obstructed, the
following cases are relevant Menertmgato,741 So.2d 619(Fla.5th DCA 1999)(held that a
landowner has no right to an unobstructed view of beach font over the neighbor's vacant
property, and, therefore, had no right to prevent construction of a house on it); Top of
ingagialtra.Nth 400 So.2d 37(Fla. 3d DCA 1991)(held that a landholder has no absolute
legal right to an unobstructed air and light from the adjoining land so as to prevent construction).
The neighbor's desire to have an unobstructed view of the nature preserve is simply not an
interest protected under the law.
EXHAUSTION OF
ADMINISTRATIVE REMEDIES
The County argues that notwithstanding their appeal of the Official Interpretation, the
(hiders should have completed a variance procedure(at a filing fee cost of$4,000 not to mention
legal fees involved)to obtain a variance from the interpretation.
To the contrary, this expensive and time consuming procedure would not provide relief
from the setback decision—but would only carve out an exception for the house as built. The
Griders'lot would still have a 25 foot setback that applies to any additional or new construction.
They would be unable to rebuild in the event of hurricane damage,fire and the h'ke. Variance is
not a remedy for Ms.Istenes' Official Interpretation decision;it is only what the name implies—
a variance from the decision applicable only in limited circumstances. Exhaustion, on the other
30
Craig Crider and Amber Crider vs.Collier County
Case No.08-7794CA
Order Granting Grid Motion tlbr Summery Judgment
hand,deals with correcting errors. R =AMaig,) ,M&81bigkirtglikibaCIL 867
So. 2d 1281 (Doctrine of a draustion is to allow an agency an opportunity to correct its own
mistakes). Also,variances may be denied if there is a negative impact on the adjoining property
owner. It is doubtful that the County would have granted the Grriders a variance. The likelihood
is that proceeding with a variance application would have been futile,. 1-,MW:oughlatiat
y, Twin t ekes Mo 1e Homes .. 153 So. 2d 64 (Fla. 2d DCA 1963) (law does not
require exhaustion where remedy would be of no avail);btsv v Floe 634
F.2d 900(5th Cir. 1981)(Exhaustion not required where futile).
PROCEDURAL VEHICLE
FOR JUDICIAL REVIEW
The County argues next that the procedural vehicle for judicial review is by petition for
certiorari. The Court disagrees for reasons set forth below. However,the Court also notes that it
has before it the same record that it would have had on certiorari review--to wit,the transcript of
the BCC hearing,the exhibits that were submitted,and the same affidavits earlier submitted to
the BCC. Thus, the Court's rulings would be the same whether on summary judgment or by
certiorari review.
(a) Nature of Hearing — Quasi-Judicial v. Quasi--Legisladve. Actions of local
government agencies are commonly broken down into two subgroups,quasi-judicial actions and
legislative actions. BEoward Casmity v.G.B.V.Int'L Ltd..787 So.2d 838,843(Fla.2001);Qrsi
gigNizsti In olailmicr46 410 So. 2d 648(Fla. 3d DCA 1982). Traditionally,quasi-
judicial actions are reviewable via a petition for certiorari,whereas legislative action is reviewed
de novo.
31
Craig Oridw and Amber Grider re Collier Cody
Case No.O$-7794-CA
Order(handing°ridmro'Motion for Summary Judgment
Legislative action results in the formulation of a general rule or policy. Bd.of County
Comm'rs of Brevard County v. Snvde .627 So.2d 469(Fla. 1993). A change of interpretation
on a forward going basis is akin to a quasi-legislative act. This is what is involved here. The
Official Interpretation was not specific to the Cinders, but was a change in policy as to Olde
Cypress in general. Thus,review should be de novo.
Hernando County v. Ukase Hills. Inc., 689 So. 2d 1103 (Fla. 5th DCA 1997) is
controlling. There, a developer filed action challenging the zoning commission's rejection of
plat — which ordinarily would be quasi-judicial. The District Court of Appeal held that the
commission's rejection of plat was the result of formulation of new policy or an interpretation
rather than application of existing policy to particular property. The commission changed its
policy--after an election of new commissioners—in order to disqualify the subject property and
all other similar property from plat approval in the future. This was deemed to be quasi-
legislative. Therefore, the Court ruled that the developer did not have to proceed by way of
certiorari in seeking relief under equitable estoppel,stating:
. . . The County's argument is that since the Commission's action
in refusing to accept the plat was quasi-judicial,then certiorari
was the only available remedy. The County relies on
County mi 'oncers of Brevard y v. 627 So.2d
469 (Fla. 1993), for this proposition. Even if andder always
precludes an independent action for equitable relief(estoppel) if
plat approval is denied—an issue we do not here consider—we are
not convinced that fairness would permit finger to apply to a case
filed some eight years before it was...
S. .
. . . In our case,we are not merely facing an amendment to a
separate ordinance by implication,we are faced with a change
of policy directly related to the requirements of platting. And
the changed policy was intended to apply to all of the
"developing community"and to numerous other properties.
32
Craig Crider andAmber Gilder va.Collier Coway
Case No.08-7794-CA
Order Griming Glides'Motion for Summer Judgment
We fed, therefore, that the nature of the Commission's
rejection of the plat — because it failed to meet a new policy
formulated simultaneously with the rejection of the plat and not
because the plat failed to comply with the plans approved by the
County or failed to comply with the County's ordinances as
theretofore applied—was not the application of existing policy to
a particular property but rather was the formulation of a new
policy which would apply to all similar property and was thus
quasi-legislative and not quasi-judicial.
That same principle applies to the instant case.
(b) Constitutional issues. A facial constitutional challenge to an ordinance is a
challenge to a legislative act and is usually made by a declaratory judgment action in an original
proceeding. Miggliaffk—CalgtY—k.ftlgRgintlialftglareas 863 So.2d 195, 199(Fla• 2003).
Ist N2 3mo.Ina.v.City of C1 594 So.2d 779(Fla.2d DCA 1992) (substantive
due process arguments and a facial attack on an ordinance should be raised by way of a
declaratory judgment action rather than certiorari); of
v. Sny,dag, 627 So. 2d 469,474 (Fla. 1993) (same); Galax Fir+ew rks. Inc. v. City of
Orlando, 842 So. 24 160 (Fla. 5th DCA 2003) (No need to exhaust administrative remedies
where claim is that the code is void ab inifio;city council had no jurisdiction to make decisions
as to the constitutionality.)
In Mond-Dade County v. W o_3 oII_. 863 So. 2d 195 (Fla. 2003),the Court
clearly held that review of the constitutionality of a local regulation is inappropriate through
certiorari review. i, Nannialcelatitiansins, 877 So. 2d 793
(Fla. 5th DCA 2004) (citing Nostimo, 594 So. 2d at 779) (recognizing "review of denial of
zoning variance was properly brought as a declaratory judgment action in circuit court rather
than by certiorari, where action was challenging not only the application ion of a zoning code
section, but also its very validity or constitutionality"); v i DIMaamo, 840 F.
33
Craig Odder ands Odder‘a.Collier County
Case No.08-7794-CA
Order Granting(hiders'Motion for Summary Judgment
Supp. 1528 (ND.Fla. 1993)(42 U.S.C. § 1983 is an appropriate method of challenging quasi-
judiciel action in Florida);Scott v.PA County,793 So.2d 85(Fla.2d DCA 2001)(holding that
a 42 U.S.C. § 1983 claim is a proper canes of action to challenge a quasi-judicial denial of a
seeing request);AfilEMJIM.L.-CALATILLARdtatialgi 901 F2d 989(11th Cir. 1990)(same).
Here, the Griders have asserted that a retroactive application of the new interpretation
violates constitutional due process requirements. They have also challenged the procedure of the
BCC initiating the Official Interpretation procedure—especially in these circumstances involving
a planning commissioner and abuse of ex-parte communications. The Court agrees.
Accordingly,this would also be a facial attack on the legislation as now interpreted as well as on
the Official Interpretation ordinance itself;
(c) Equitable Remedies. Not all executive or administrative actions are quasi-
judicial. Florida courts have traditionally allowed lawsuits de novo addressing injunctive relief
under theories of equitable estoppel or suits establishing vested rights in administrative settings.
So fat amok,Citrus County v.Florida Rock. ndus..Inc..726 So.2d 383,387(Fla.5th DCA
1999) (Administrative vested rights procedures do not appear to supplant ability to bring an
action in circuit court to determine common law rights on equitable estoppel.)
Sakolsky v. city of Coral Gables, 151 So. 2d 433 (Fla. 1963); Reserve. Ltd. v. Town_of
Lauslgtsm,17 F.3d 1374, 1379(11th Cir.1994).
polar O LLC v City of Ft Last . 966 So. 2d 497 (Fla 4th DCA
2007) involved a circuit court's dismissal of a lawsuit filed by a frustrated developer over the
City's denial of a site plan. The circuit court ruled that the developer's only remedy was
certiorari review. The Fourth District disagreed, holding that under the facts of the rase, the
34
Crag Grder and Amber Grier vs.Collier County
Case No.08-7794-CA
•
Order Greeting°riders'Mod=fvr Summary Judgment
developer asserted collateral estoppel and other equitable claims that could not have been
addressed in the certiorari review process.
In agjakommfalliorSseat,385 So.2d 1158(Fla. 2d DCA 1980),the owner of real
property obtained a building permit and spent money to commence work on the project.
Thereafter,the zoning board issued a stop-work order. The property owner failed to timely seek
certiorari review and, instead, filed a petition for writ of mandamus. The trial court dismissed
the petition with prejudice as a consequence of the owner's failure to timely seek review of the
order via the fling of a petition for writ of certiorari. The appellate court agreed that mandamus
was not the appropriate remedy,but nonetheless reversed the dismissal with prejudice because
the owner should have been afforded the opportunity to "state a cause of action in equity for
equitable estoppel,declaratory relish, or an injunction." %VIM Elsgitilie 726
So. 2d at 383, Town of Largo v lmt> ' 1,Homers Con 309 So. 2d at 571, and
Lw ev v._Mezrah. 467 So.2d 488 (Fla. 2d DCA 1985)(each involved the circumstance
where a property owner/applicant brought a civil action for declaratory relief and/or an
injunction,asserting that the governmental entities' prior conduct was such that it was estopped
from taking the complained-of action).
Isere, neither Ms. Istenes nor the BCC considered equitable estoppeL This Court may
consider it de novo.
(d) Whether the Official Interpretation Procedure Applies At All. It is
questionable whether the BCC can initiate the Official Interpretation process in the first place.
LDC Sec. 10.02.02 F.1 provides:
Initiation. An interpretation may be requested by any affected
person, resident, developer, land owner, government agency or
35
Craig Odder and Amber Grier vs.Collier Crimp
Case No.08-7794-CA
Order Granting(hiders'Motion for Summary Judgment
department,or any person having a contractual interest in land in
Collier County.
(Ex. 2) The BCC is a body of elected officials—not a governmental agency? In addition,the
BCC was not "affected" —rather one of the planing commissions was. The BCC had no
authority to request an Official Interpretation in the first place, under the clear remedy of the
ordinance.
In addition, under the LDC any appeal from an Official Interpretation goes to the BCC
sitting as the Board of Zoning Appeals. (Ex. 2) Here the BCC acted as an independent
investigative body, an affected party initiating the Official Interpretation process, and the
appellate panel to where an appeal from the Official Interpretation would be taken. This clearly
offends the notion of procedural due process.
(e) The Official Interpretation Procedure Was Appellate—Not Quad-Judicial.
Further, the County deemed that the Griders were not a party to the proceeding and that the
request was not site specific, but pertained only to Olde Cypress in general. Specifically, the
Official Interpretation procedure(LDC Sec.10.02.02)provides for notice only as follows:
i.
Notification of affected property owner. Where a site
specific interpretation has been requested by a party other
than the affected property owner, Collier County shall
notify the property owner that an interpretation has been
requested y
2 Collier County,created by Act dated 1923,reams a nun-chartered county. Non-cluster counties only have"such
power of self-government as is provided by general or special law." Fla.Coat art.VIII,§1(f). There is no general
or special law granting the BCC agency status. They are the legislative body of the County—unless acting in other
capacities(such as a Zoning Board of Appeal)designated by statute or ordinance.
The Collier County Commissioners'homepap recognises its status as the°chief legislative body"ofthe county,as
Sallows:
The Board of County Contrainionsrs consists of S elected officials who,as the
chief legislative body of the County are responsible for providing services to
protect the health,safety,welfare,and quality of life of the citizens of Collier
County. (available at bttpolwww.collltrgov.netl)
36
Craig Gridar and Amber Grlder vs.Collier County
Case No.0t-7794-CA
Order Granting Griders'Motion for Sammy Judgment
(Ex.2). Clearly,the proceeding was not quasi-judicial as to the(riders at the beginning.
The County thereafter claimed the Graders were a proper party and served "parcel
specific" notice to the Gridera. The Griders thereafter exhausted administrative remedies by
taking an appeal of the Official Interpretation.
The codified standards for the appeal in LDC Sec. 10.02.02 F do not allow for a quasi-
judicial de novo proceeding. Rather, the Official Interpretation is accorded a presumption of
correctness and the Cinders bad to demonstrate that the interpretation was not supported by
evidence and was contrary to the local ordinances. See LDC Sec. 10.02.02 F:
The board of zoning appeals or the building board of adjustments
and appeals, whichever is applicable, shall not be authorized to
modify or reject the County Manager or his designee's or chief
building official's interpretation unless such board finds that
the determination is not supported by substantial competent
evidence or that the interpretation is contrary to the growth
management plan, the future land use map, the Code or the
official zoning atlas,or building code,whichever is applicable.
Accordingly,the appeal procedure—by Code—is not quasi-judicial,but is appellate in nature.
Shortly before the appeal bearing, the County Attorney sent the (riders notice that he
was recommending that the hearing before the BCC now be treated as a "quasi-judicial"
proceeding,setting forth certain time limits and an order of proceeding. (Ex. 38) The Comity's ';
last minute attempt to turn the appeal into a quasi-judicial proceeding is unavailing.
Procedural due process was hardly afforded the Griders under the circumstances
presented with multiple ex-parte appearances by the neighbors and Planning Commissioner
Kolsat. Moreover,the Court does not believe that the BCC can act as the complaining party,the
investigative party, the initiating party and the appellate panel. This matter is ripe for de nave
37
Craig Oriels'and Amber Gridar vs.Collier Cowry
Case No.08-7794-CA
Order Granting(hiders'Motion for Summary Judgment
judicial review — not certiorari review with a presumption of correctness as to what occurred ,
below.
CONCLUSION
For the reasons set forth above, declaratory judgment is entered in favor of the Griders
consistent with this opinion. The County is directed to issue the Griders a final certificate of
occupancy. ,
DONE AND ORDERED in Chambers, in Naples, Collier County, this day of
,r JA( ,2009. 41 ' 0 C .'_ ..1.410.___/ id,0_ ,/
Judge Circuit 1
1
Malang L.Cooper,Esq.,Jonas,Foy,Johnston&Stubbs,P.O.Box 3475,West Palm Beach,FL 33402-3475;and
Steven T.Williams,Esq.,Office of the County Attorney,3301 E.Tamland Tr.,8th Fl.,Naples,FL 34112.
PA DOC8125190100001P1.DU37IR27.DOC I
order mating motion s anmmy d6 1
I
38
September 15, 2009
TRANSCRIPT OF THE MEETING OF THE
BOARD OF COUNTY COMMISSIONERS
Naples, Florida, September 15, 2009
CLOSED SESSION
Item #12A - GRIDER VS. COLLIER COUNTY
LET IT BE REMEMBERED, that the Board of County
Commissioners, in and for the County of Collier, and also acting as
the Board of Zoning Appeals and as the governing board(s) of such
special district as has been created according to law and having
conducted business herein, met on this date at 12:00 p.m., in CLOSED
SESSION in Building "F" of the Government Complex, East Naples,
Florida, with the following members present:
CHAIRMAN: Donna Fiala
Fred Coyle
Jim Coletta
Frank Halas
Tom Henning
ALSO PRESENT:
Jim Mudd, County Manager
Leo Ochs, Deputy County Manager
Jeffrey A. Klatzkow, County Attorney
Steven T. Williams, Assistant County Attorney
Page 1 — Item #12A (Grider)
September 15, 2009
Item #12A
THE BOARD IN EXECUTIVE SESSION WILL DISCUSS:
SETTLEMENT NEGOTIATIONS IN THE PENDING
LITIGATION CASES OF CRAIG GRIDER AND AMBER
GRIDER V. COLLIER COUNTY, CASE NO. 08-7794-CA AND
CRAIG GRIDER AND AMBER GRIDER V. COLLIER COUNTY,
CASE NO. 09-3164-CA, BOTH WHICH ARE NOW PENDING IN
THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER
COUNTY, FLORIDA. — CLOSED SESSION
MR. KLATZKOW: We'll start with Grider because that's going
to be the easier of the two discussions. This is Steve T. Williams. He
comes to us from Marathon where he had a small practice while he
was a member of the Planning Commission there. Steve's been
handling the Grider litigation, and I'll just toss this to them to discuss
it.
MR. WILLIAMS: As you may know, the judge this summer
issued a summary judgment saying that the Griders' house within Olde
Cypress does not violate the 25-foot preserve setback issue. Judge
Pivacek, formerly Judge Ellis, signed an order directing the county to
give the Griders a Certificate of Occupancy. That is a problem,
because as you may recall, we had a subsequent hearing this April
where it is also alleged, and you as the BZA found, that there were lot
line issues as well in addition to the 25-foot preserve setback.
We cannot comply with the judge's order, and we have pointed
that out to the judge and filed paperwork with the judge stating that.
In the interim we have received a settlement demand from the
Griders to resolve both pieces of litigation at the same time. The
Griders have asked for their fees and costs to be paid, and they would
drop the pieces of litigation.
This is, at a penny, running to $75,000 what they've asked for
Page 2 — Item #12A (Grider)
September 15, 2009
from us. You haven't asked me, but I'll tell you anyway. Frankly that
is very high for court costs and court fees. It is a substantial reach
above and beyond having copies made, filing fees at the courthouse,
process serving fees and everything. I believe there would be some
degree of profit in there, but that is her demand. We received that on
August 31st this summer, and so this meeting came up very timely for
us.
We came to the issue of what do we do with regard to the
litigation currently. In the first case on the 25-foot preserve setback
issue, we have asked the judge to reconsider her opinion. She has not
ruled. She has not acted. It has sat on her desk since roughly July of
this summer. Actually since July 6th. So whether the judge is looking
to see what we do here today or the judge is just extremely busy this
summer, I don't know which.
So our choices are to, A, you could -- according to their demand,
we could give them $75,000 and the cases are over. The discussion
they have not mentioned is to appeal the judge's decision, and that
would be to the Second DCA as to whether the judge's opinion merits
appeal. Is the 25-foot preserve setback issue correct? Did the Griders
follow proper county procedure is a question that Jeff and I have had
in our office. They've gone through this entire process. They've
received Judge Pivacek's order yet despite building their house right
up on a preserve, they never once filed for a variance.
That's somewhat different and unique. We don't see that
throughout the county very often. We told them they ought to file for a
variance, and they -- have just like everybody else does. They haven't.
To their credit, they won without having to do so. Judge Pivacek
gave them an order without them ever filing for a variance. So either
they're unique, novel, or just lucky. I don't know which.
So I seek your guidance as to how to proceed with Ms. Margaret
Cooper and the Griders, where we go forward from here. I can't settle.
I can't do anything without your approval.
Page 3 — Item #12A (Grider)
September 15, 2009
COMMISSIONER COYLE: File the appeal.
MR. KLATZKOW: There are really two ways to approach this,
okay. The first way is that we get back into session, you can direct me
to continue the litigation. And what we'll do at that point in time is
you can file the appeal, and we will proceed with the litigation on the
lot line adjustment.
The second approach you can direct me to do is to try to settle
this case. My recommendation, not to pay them a nickel. If they want
to get this settled, we could take care of the setback issue, take care of
the cord line measurement issue and just be done with it as far as the
Griders go, and that's really the two approaches. To press the
litigation, in which case we'd file the appeal and move on with the lot
line adjustment, or we can seek a settlement. But my settlement
authority would be, you know, we stop pressing this code enforcement
issue but we're not going to pay you a dime on it, and that's the
direction I'd like to see it go, one or the other.
COMMISSIONER COYLE: Well, aren't you essentially
conceding that they did not violate our Land Development Code?
MR. KLATZKOW: No. What I'm essentially doing is, you
know, everything is cost and benefit. The question is, do we want to
spend the time and the effort fighting this issue given that it only
affects one house, or do we want to just, at this point in time, just let it
go? And that's the idea, really, is sort of, is it worth the resources in
fighting it at this point in time?
COMMISSIONER COYLE: But we can't -- we cannot do what
the Court has told us to do?
MR. KLATZKOW: No, not right -- not as long as we have this
open issue with the corner lot going on.
CHAIRMAN FIALA: Commissioner Henning?
COMMISSIONER HENNING: It was my understanding that
reimbursement for attorney's fees is if you appeal the decision, you
have to -- you could be subject to their attorney's fees. And what
Page 4 — Item #12A (Grider)
September 15, 2009
they're asking for is their attorney's fees based upon the filing and the
judge's ruling.
But are we obligated to pay those fees?
MR. WILLIAMS: Okay. We need to keep clear the concepts of
attorney's fees versus costs. Currently, Ms. Cooper has sent us
documentation their attorney's fees are over $143,000. She has no
legal basis for her attorney's fees. The costs she's seeking for us are
such things as we had to pay for the mediator, process servers, she
filed -- a $1,000 fee to appeal the decision to the BZA. It's those level
of fees that she's asserting, not her time spent on the matter, which she
still claims in both pieces of litigation will come to $75,000, a pie in
the sky that no one agrees with.
But she does have hard fixed costs. I mean, she did spend 1,300
in filing fees both to you and the courthouse. And she did spend the
mediation fees. She did have to pay a process server. In all frankness,
the judge will give her those, will give her costs; hard, fixed costs.
Now, 75,000 is not hard and fixed. That's very fluffy. That is
completely up to you. I mean, they may be very happy to get their
CO, as Jeff suggested, not a nickel, here's your house, and we're done
with you in both cases. But please don't confuse attorney's fees with
fixed costs.
COMMISSIONER HENNING: Oh, I appreciate that analysis.
Straightened it out on the issue.
Now, if we appeal Judge Pivacek's ruling -- which, my opinion,
she didn't write that. Marcia Cooper did.
MR. WILLIAMS: I promise you Ms. Cooper wrote it. I
received a copy of mine. We both submitted them to the judge. And
the one that she had given me was the one the judge signed.
COMMISSIONER HENNING: Right. I mean, it was -- I don't
understand. But anyways, if we appeal it, then we can get into her
legal costs.
MR. WILLIAMS: Yes.
Page 5 — Item #12A (Grider)
September 15, 2009
COMMISSIONER HENNING: I guess that's a concern on my
part when this lot line adjustment is something that never was
considered in the courts, and Judge Pivacek should -- would -- my
opinion, what I'd like to see is that we ask Judge Pivacek to reconsider
her order striking -- giving a CO and uphold the BCCs ordinance by
having the Griders come to the BCC for a variance on those setback
issues.
MR. WILLIAMS: On July 6th I asked Judge Pivacek to
reconsider her order. She responded ten days later on July 16th, and
what she said is, Ms. Cooper, Mr. Williams, you two discuss this and
see if you can modify the order, or, Ms. Cooper, you have to submit a
written memo to me why I should not do it, and I will consider oral
argument again in this matter.
Ms. Cooper and I can reach no agreement because Ms. Cooper
didn't engage me. She simply submitted a written response. It has
then sat on Judge Pivacek's desk since she received Ms. Cooper's. The
judge has to decide whether she wants to hear from Ms. Cooper and I
again in her courtroom.
So we have done what you've asked already, and I don't know
what the judge will do. We've asked her to reconsider the order.
Now, whether we will or not -- and that's what will trigger -- that's
why you still have time to appeal. Our appeal period will not
commence until Judge Pivacek decides what she's going to do, so
we've got time to appeal this case.
COMMISSIONER COYLE: Well -- did you finish?
COMMISSIONER HENNING: Yes, I did. Thank you.
COMMISSIONER COYLE: Go ahead.
COMMISSIONER HALAS: My concern is that it's not only the
setback to the preserve, but there's also some other issues that need to
be addressed, and that is in regards to the lot being a corner lot, the
setbacks of the corner lot, and all that other stuff which, I think,
violates our LDC.
Page 6 — Item #12A (Grider)
September 15, 2009
So I believe that in order to get this cleared up, the Griders have
to come forth and put down whatever it takes to come before the board
to see if those variances will -- if we'll accept those variances.
If the judge looked at this as saying you don't have to abide by
the LDC codes, I'm surprised that the judge would take that stand.
So I think that we, some way or another, have to get to the judge
and have that person fully understand exactly what they ruled on, and
it's in violation of the county's codes.
MR. WILLIAMS: We spent three days arguing in front of the
judge the first time on three separate hearings. Ms. Cooper is so
loquacious that we had a little difficulty keeping it confined into the
first hour we had reserved. The judge has come back a couple more
times.
I share your concern that no matter how hard we argue this in
front of the judge, this judge has no real land use experience. We
began the hearing explaining to her the difference between a PUD and
a traditional subdivision, and that's how basically we began the
hearing on this.
And I'm not sure to this date that by signing Ms. Cooper's order
without changing a word in it that she truly understands what we're
there to discuss, and that's a hazard in any case before any other judge.
I mean, judges come from various backgrounds and some come from
criminal and some come from big law.
COMMISSIONER HALAS: I would think when it's -- a subject
matter of this nature would come up that the judge would try to
educate themselves to get a full understanding of the implications
when they make a ruling on a case.
MR. WILLIAMS: I would hope so, yeah. I would hope so.
COMMISSIONER HALAS: So do we have an option of trying
to get another judge?
MR. WILLIAMS: No.
COMMISSIONER HALAS: No?
Page 7 — Item #12A (Grider)
September 15, 2009
MR. WILLIAMS: There's no basis to try to -- unless there is a
conflict or a basis for recusal. I've got none in the statutes. And to
follow your lead is, the judge just doesn't know enough, no, I can't get
enough. And there's only two choices to start with. You have Judge
Hayes and Judge Pivacek who handle all these matters for the whole
county. You'll see all of your cases that come before us, we get one of
those two judges. If the judge has a conflict, I can get a new one, but
MR. MUDD: If you're looking for a different judge that knows,
the option to appeal is the correct option. You go to another judge
when you appeal the decision that was made at the lower court.
MR. WILLIAMS: Yeah. Mr. Mudd's entirely correct, yeah.
And that's what the Second DCA is for. If the lower judge doesn't
know enough and is wrong on the law, that's where we get a second
judge.
COMMISSIONER HALAS: Okay.
MR. WILLIAMS: And then there is a chance that if the Second
DCA were to reverse the first judge, that she may voluntarily let the
other judge have it when it comes back down so she doesn't have to
face her own error. But it's -- in all likelihood it stays with Judge
Pivacek.
COMMISSIONER HALAS: The other underlying thing is that
the designer, builder, whatever you want to call it, this -- this is like an
ongoing soap opera that's been taking place in the county for a number
of years. The particular person, I think, basically pushes the envelope
to see how far they can -- how much they can extract, and then when
we go to court we end up folding our tent, and I'm tired of folding our
tent.
I think that we need to hopefully address this so that we don't
continually throw away taxpayers' money because of the fact that we
don't do what I think is right, and that is to assert ourselves to get the
right judgment.
Page 8 — Item #12A (Grider)
September 15, 2009
MR. KLATZKOW: Yeah. I understand what you're saying,
Commissioner. I don't disagree. I will tell you the biggest problem
we had in this case was that staff kept saying one thing to them the
Griders relied on, put their house up, and at the end of the day when
the house was up, they said, whoops, there's a problem here. Tor was
the one who found the problem. And it's kind of hard going to a court
and saying somebody's not in compliance with your LDC when your
staff from day one said, yes, this is fine, yes, this is fine, yes, this is
fine, and when they're about to get their CO, says, wait a second, we
made a mistake. None of this is -- and that's the biggest problem
we've had in this case. It just strikes -- it strikes an average person as
not fair that somebody did everything they should have done working
with staff, and it's still not enough.
COMMISSIONER COYLE: Well, you indicated that the
opposing counsel had sent something to the judge and it's sitting on
the judge's desk. Have you sent something to the judge that represents
our position?
MR. WILLIAMS: I did first, yes.
COMMISSIONER COYLE: You sent something?
MR. WILLIAMS: I sent ours first saying, Judge, please consider
this. Your opinion doesn't take into account this other situation with
lot lines. Your ruling is impossible to comply with. Please reconsider
it.
The judge then sent a memo saying that -- you two fix this order
or Ms. Cooper has to respond to what you told me, and that's what
you're referring to is that second piece. Ms. Cooper's came in last. I
sent first.
COMMISSIONER COYLE: Okay. And so now we have
responses from both sides sitting before the judge?
MR. WILLIAMS: Yes.
COMMISSIONER COYLE: And her option really is to make
the decision herself and try to right an amended order or to uphold her
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September 15, 2009
first order and tell us we're wrong, and then we have no option but to
appeal.
MR. WILLIAMS: Correct.
COMMISSIONER COYLE: Now, how long can the judge sit on
that?
MR. WILLIAMS: Wonderful question. There is, in the old law,
something called a lazy judge rule, but that usually won't kick in until
you've seen a year come and go. In the interim the Griders keep living
in the house and we still have this matter open and it still sits there.
But the answer is, whenever the judge darn well feels like it.
COMMISSIONER COYLE: Yep.
MR. WILLIAMS: And we have another thing to face and
consider to go with what Jeff said. Judges are loath to take bricks out
of existing buildings. I mean, this house is up. It is functioning.
People are living in it. And at the end of the day, whether it goes to
the appeals court or whether it comes to this judge or whether it goes
over to Judge Hayes, I don't envision any of them at the end of this
litigation tearing down that house or ordering it to be torn down.
COMMISSIONER COYLE: Yeah, that's my concern, too. And
what I'm wondering is, what would be an acceptable outcome for us is
irrelevant in my opinion. What is an acceptable outcome for the
owners of the house next door because they are the party that has been
mostly harmed by our failure to act appropriately at the staff level.
So is there any possibility of getting monetary damages paid to
the property owner next door? They're arguing that the value of their
house has been diminished as a result of the violations of the Griders'
house. So their concerns could be mitigated by payment of some kind
from the Griders, which might very well be less than their legal costs
to continue to fight this thing. So how do we get that kind of result
serviced?
MR. KLATZKOW: I was told they had those negotiations early
on and that their neighbors wanted too much.
Page 10 — Item #12A (Grider)
September 15, 2009
COMMISSIONER COYLE: Do we know how much too much
is?
MR. KLATZKOW: No, that's all I was told.
COMMISSIONER HALAS: I think we need to find that out.
COMMISSIONER COYLE: Yeah. Now that -- now that we
have supposedly lost, is there any interest for the neighbors to accept
something less than what they might have originally claimed, and are
we properly empowered to even enter into that kind of discussion with
them?
MR. KLATZKOW: That would be a discussion between the two
neighbors, not with us.
COMMISSIONER COYLE: Okay.
MR. KLATZKOW: We're just here to uphold the law.
COMMISSIONER COYLE: Do they have an attorney?
MR. KLATZKOW: Clay Brooker.
COMMISSIONER COYLE: Oh, that's right, Clay. Well, can we
talk with Clay and see if-- Clay, is there something you want done
here? Can you work this out --
MR. KLATZKOW: Yeah, that's who I spoke with, and Clay told
me that they were negotiating the -- sort of like a buy down of the
problem and couldn't reach --
COMMISSIONER COYLE: Have we talked with him recently
though?
MR. KLATZKOW: No, not since the decision came down.
COMMISSIONER COYLE: Okay. I wonder if that wouldn't be
the appropriate thing to do here because, quite frankly, if it were not
for the damage to the neighbor next door, I couldn't care less. I mean,
staff made judgments that were wrong, but these people relied upon
those judgments and they built their house. I can't, in good
conscience, demand that they tear down their house if there is a
solution that would make the next-door neighbor happy, because that
is the person who is really harmed here.
Page 11 — Item #12A (Grider)
September 15, 2009
COMMISSIONER HENNING: May I say, the solution really is
to get a variance. Those --
MR. WILLIAMS: You're 100 percent correct.
COMMISSIONER HENNING: And those issues -- and I agree.
And like I told another neighbor is, look, on those side yard variance
issues, if your neighbors don't have an issue with it, I don't have an
issue with it.
COMMISSIONER COYLE: That's right.
COMMISSIONER HENNING: But if the neighbor down the
street has an issue with it, I'm not going to consider that neighbor
because they're not impacted by it. It's the people who are impacted
by it.
So to answer the question is, how do we get this done, resolved
with the neighbor? Get it in for a variance. And that's what I'm
saying is, ask Judge Pivacek to put aside the issue of a CO and
demand that the Griders come to the BCC for the variance of the lot
line adjustment, with the lot line adjustment created.
MR. WILLIAMS: I argued that to Judge Pivacek.
COMMISSIONER HENNING: She signed a response.
MR. WILLIAMS: She signed Ms. Cooper's orders. I argued that,
and she signed Ms. Cooper's order.
COMMISSIONER HENNING: Oh, you did?
MR. WILLIAMS: Yes. I said it was premature to be at the
courthouse. They failed to exhaust their administrative remedies, they
never asked for a variance, and the judge signed Ms. Cooper's order
anyway.
MR. KLATZKOW: That's the reason we went through this
whole process because they never would come to us with a variance.
They were out of compliance, so to force the issue, we went to the
interpretation by Susan just to get it to the board level to be done with
it.
COMMISSIONER HENNING: All right. Well, let me see if I
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September 15, 2009
can understand what the appeal of the Board of Commissioners was.
It was the interpretation; it was the appeal.
MR. WILLIAMS: Yes, sir.
COMMISSIONER HENNING: Now, did Cooper ever appeal
the lot line adjustment --
MR. WILLIAMS: Yes.
COMMISSIONER HENNING: -- in writing?
MR. WILLIAMS: Yes, with the court, filed at the courthouse
April 9, 2009. April 22nd, I moved to dismiss it, and nothing else has
happened in that case since April 22nd. It's sitting there, other than
her August 31st letter last -- two weeks ago, agreed to dismiss that,
because part of a lump sum settlement is she would loss out the lot
line case if we paid her costs. So it has sat there without any activity
since I moved to dismiss it in April.
COMMISSIONER HENNING: So she hasn't acted upon it?
MR. WILLIAMS: We've just been moving on the 25-foot
setback.
COMMISSIONER HENNING: I guess you understand my
concerns, so what are your recommendations of proceeding on this?
MR. WILLIAMS: If we had the mechanism, Commissioner
Coyle has the exact correct approach is, this is a dispute between two
neighbors. The county has been brought in to be the heavy hand in
the dispute between the two neighbors. We need the neighbors happy
for you guys to be happy.
I mean, at that, it becomes moot. You have one house affected
throughout this entire county. It is not an entire rewriting of the LDC
is -- I don't have a personal investment in this issue. But if I used to
stay in my bedroom in peace and quiet and now the neighbor's
bedroom looking down into it and building their house here, I would
be concerned as well.
But Jeff is right. They have negotiated this in the past. If you
direct us to tell them that they need to rethink their negotiations, we
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September 15, 2009
could pass that word along, but it's not an official action of this board.
MR. KLATZKOW: Yeah. And again, what I'm looking for is
either direction of the board to try to settle this case or to just continue
the litigation. If I continue the litigation, I'll talk with Clay and see if,
perhaps, they can reach a resolution. Knowing Margaret Cooper, I
don't have great hopes for that, but --
COMMISSIONER COYLE: What firm is she?
MR. WILLIAMS: She owns Foster and Stubbs out of West
Palm.
COMMISSIONER HENNING: You know, to narrow it down,
it's been said by some people in knowledge and participation of the
rewrite of the Land Development Code from the LDC to the LDRs,
and Margie Cooper's -- no, who's the attorney helping us?
MR. WILLIAMS: Clay Brooker.
COMMISSIONER HENNING: No, no, no. To write it to the
LDRs, when we did a rewrite in 2004? Anyways, it was a convoluted
misrepresentation about setbacks, and some had said that was involved
in this process that it's too convoluted for a judge to come to the
conclusion that it's a setback issue from the preserves.
To me, the issue of the lot line adjustment is clear. With the fact
that, the staff giving them approvals, it's clear that that is a violation of
the setbacks. Can we narrow it down just to that and don't even go
there with the preserves?
MR. WILLIAMS: No. You have two separate pieces of
litigation with two case numbers at the courthouse tracking very
differently. It's -- a victory on loss on one could render the other one
moot. I mean, it's -- they need both to get their CO, but it's -- if we
win both they don't get their CO.
COMMISSIONER HENNING: If we win one they don't get
their CO.
MR. WILLIAMS: If we win one they don't get their CO.
MR. KLATZKOW: Of course then, what's the remedy going to
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September 15, 2009
be?
COMMISSIONER HENNING: The variance.
COMMISSIONER HALAS: Variance.
COMMISSIONER HENNING: And then the variance --
COMMISSIONER HALAS: A variance.
COMMISSIONER HENNING: -- would get at my concern and
Commissioner Coyle's concern is, what is the -- what are we going to
have to do to satisfy the neighbor?
MR. WILLIAMS: Quite frankly, and I'll tell you is, the reason
they have not come to their variance is they are convinced mentally
that they won't get it. But I mean, that's -- I've asked. I said, why
won't you come in? I've asked their attorney. Why won't you do it?
Well, you denied this, you've denied this. Staff has changed their
mind. The staff has done this. We just don't think we would get it,
and it's an extra layer on top of-- and I said, well, I can't share that
concern with you. You don't know until you come in here and ask for
it. So far we haven't been able to force them to do it, and they have
gotten this far without it. That's where they should go; if they were
everyone else but Margaret Cooper, they would have been here for it.
COMMISSIONER COYLE: What legal action will put the
greatest pressure on the Griders to settle? An appeal?
MR. WILLIAMS: It would have to be an appeal.
MR. KLATZKOW: Appeal.
MR. WILLIAMS: But it's also your greatest exposure. I mean,
it cuts both ways. It's your greatest exposure fiscally, and it's their
greatest hammer hanging over their head.
COMMISSIONER COYLE: And what does our insurance do
for us; anything at all? Nothing. We're going to pay everything, right?
MR. KLATZKOW: Yep. This is on us.
COMMISSIONER COYLE: All right.
COMMISSIONER HENNING: And that's my greatest fear.
MR. WILLIAMS: Because right now, I mean, you don't face
Page 15 — Item #12A (Grider)
September 15, 2009
attorney's fees. I mean, none of this has been frivolous. The judge
took extreme care in hearing this matter, and there is no contractual
basis or nothing in the Florida Statutes that say you have to pay her
attorney's fees.
Now, if we go forward with an appeal, she has sent us notice that
she'll be seeking attorney's fees if she wins, so that's -- it's really only
in play as we move forward from here.
COMMISSIONER COYLE: Well, okay. Let me try another
shot. Let's suppose we just wait out the judge.
COMMISSIONER HALAS: Yeah.
COMMISSIONER COYLE: You've got two -- two courses of
action, two separate cases. Sooner or later she's got to get to both of
them.
MR. WILLIAMS: Yes.
COMMISSIONER COYLE: If she fails to rule consistently with
this particular case, the first case, then it seems to me that she's going
to find herself in a bind with the second case. And if she loses -- or
the Griders lose the second case, then the first case, I believe, is moot.
MR. WILLIAMS: Yep.
COMMISSIONER COYLE: Is that not true?
MR. WILLIAMS: Correct.
COMMISSIONER COYLE: Okay. Now -- so the judge will
have to find both cases against us in order to make her decisions
consistent; is that right?
MR. WILLIAMS: Yes.
COMMISSIONER COYLE: Okay. So if we just let this thing
trail along and you promise not to come to work, okay, and he doesn't
call you to come to work -- and let's suppose it takes a year, then she's
going to have to -- the judge is going to have to do something.
MR. WILLIAMS: Yes.
COMMISSIONER COYLE: And if she doesn't do something
after a year, then we do something, right?
Page 16 — Item #12A (Grider)
September 15, 2009
MR. WILLIAMS: Yes.
COMMISSIONER COYLE: And that seems to be our best
option. And then if we don't like the outcome of the two cases, then
we can decide to appeal if we want to. But in the interim we've spent
no money whatsoever.
Now, the people -- the lady who's living in the house, of course,
has to endure some discomfort over that period of time, but who
knows when those -- both those cases are going to be solved anyway.
It can take another six months, I would presume, for the judge to rule
not only the rewriting of her opinion this time but also on the second
case.
MR. WILLIAMS: What will happen from there is when the
judge does sign that order, the day she signs it I'm under a time
guideline to file a notice of appeal with the Second DCA. I've got 30
days.
COMMISSIONER COYLE: Thirty days. Only 30 days.
MR. WILLIAMS: Now, granted, the worst thing that could
happened is what almost happened to us this summer, if she comes
while you're on a vacation, or if she comes to us at Christmas holidays
is, we'll need your approval to file an appeal. And that's -- so we'll be
glad to let it sit there. I have no problem letting it sit there. It's like
you said, Jeff can give me some vacation days here. But when it does
come in, my clock starts ticking.
COMMISSIONER COLETTA: Give appeal prior approval that
if certain circumstances come together, that we, it -- automatically our
vote or our discussion carry forward to the appeal so we don't have to
worry about the problem of vacations or Christmas?
MR. KLATZKOW: If you're going to tell me to continue with
the litigation, all right -- because you either settle or you continue with
the litigation -- then what I will do is, if an order comes through, I will
notify you by email of what happened, I will presume to file the
appeal, and if any of the commissioners want to discuss it further, let
Page 17 — Item #12A (Grider)
September 15, 2009
them know, and I'll call another shade session.
COMMISSIONER COYLE: And we can do that by telephone if
we have to.
COMMISSIONER COLETTA: That sounds -- that way we can
get past that point. So the way I understand it now, the reason that this
is before the judge is because we asked for them to reconsider, while
this is reconsidering, everything is put on hold; they can't force us into
doing something?
MR. WILLIAMS: Correct.
COMMISSIONER COLETTA: Okay. I think Commissioner
Coyle's right, you know, we run the clock. Who knows. A lot of
circumstances can change between now and the time everything
happens. And if a full year goes by, are we required at that point in
time to do something, or can we just let it go saying that it's still the
judge we're waiting for?
MR. WILLIAMS: That's up to you guys. We can continue to
say that the judge still hasn't signed it.
COMMISSIONER COLETTA: And then meanwhile you stop
the meter from running until that point in time everything kicks in.
MR. WILLIAMS: Ultimately what they're going to want from us
is for Joe's shop to sign a Certificate of Occupancy, and that's what
we're not giving them as long as the judge doesn't sign this or do
anything. So we will withhold the CO until judges tell us differently,
again.
COMMISSIONER COLETTA: Sounds like a course of action.
Do we have to frame it any different way, Commissioner Coyle?
COMMISSIONER COYLE: It doesn't cost us any more, I don't
think.
MR. KLATZKOW: Okay. So you'll just direct -- if that's what
you want to do, direct me just to maintain status quo.
COMMISSIONER COYLE: And reject their offer of--
COMMISSIONER HALAS: 75,000.
Page 18 — Item #12A (Grider)
September 15, 2009
COMMISSIONER COYLE: -- settlement. Just reject it and let
them know we're not playing the game.
MR. WILLIAMS: If I were to speak with counsel involved in
the matter, I may want to suggest to counsel that they need to be
speaking with the neighbors?
COMMISSIONER COYLE: Yes.
MR. WILLIAMS: Okay. That's the course of action I will take
from this meeting.
MR. KLATZKOW: Thank you, Steve.
MR. WILLIAMS: Thank you.
(The proceedings concluded at 12:45 p.m.)
*****
STATE OF FLORIDA )
COUNTY OF COLLIER)
I, Terri L. Lewis, Notary Public, do hereby certify that the foregoing
proceedings were taken before me at the date and place as stated in the
caption hereto on Page 1 hereof; that the foregoing computer-assisted
transcription is a true record of my Stenograph notes taken at said
proceedings.
Dated this September day of 28, 2009.
TERRI L. LEWIS, Notary Public,
State of Florida;
My Commission No. DD 909558
Page 19 — Item #12A (Grider)