Agenda 09/15/2009 Item #12A
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Agenda Item No. 12A
September 15, 2009
Page 1 of 71
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
Item Number:
Item Summary:
12A
This item to be heard at 12:00 noon Notice is hereby given that pursuant to Section 286.011
(8), Fla. Stat., the County Attorney desires advice from the Board of County Commissioners
in closed attorney-client session on TUESDAY, SEPTEMBER 15,2009, at a time certain of
12:00 noon In the Commission conference room, 3rd Floor, W. Harmon Turner Building,
Collier County Government Center. 3301 East Tamiami Trail. Naples, Florida. In addition to
Board members, County Manager James Mudd or Leo OCllS, Deputy County Manager,
County Attorney Jeffrey A. Klatzkow, and Assistant County Attorney Steven T. Williams will
be in attendance The Board in executive session will discuss: Settlement negotiations in the
pending litigation cases of Craig Grider and Amber Gnder 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, Flonda.
Meeting Date:
9/15/2009 90000 AM
Approved By
Steven Williams Assistant County Attorney Date
Attorney's Office Attorney's Office 7(31(2009 12:58 PM
Approved By
_. Jeff Klatzkow County Attorney Date
County Attorney County Attorney Office 8/11/200910:22 AM
Approved By
OMB Coordinator OMB Coordinator Date
County Manager's Office Office of Management & Budget 8/31(200910:18 AM
Approved By
Sherry Pryor Management & Budget Analyst Date
County Manager's Office Office of Management & Budget 8/31/2009 11 :31 AM
Approved By
Leo E. Ochs, Jr. Deputy County Manager Date
Board of County County Manager's Office
Commissioners 8/31/20092:11 PM
.-.
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Agenda Item No. 12A
September 15, 2009
Page 2 of 71
NOTICE OF CLOSED ATTORNEY-CLIENT
SESSION
Notice is hereby given that pursuant to Section 286.011(8), Fla. Stat., the County Attorney
desires advice from the Board of County Commissioners in closed attorney-client session on
TUESDAY, SEPTEMBER 15, 2009, at a time certain of 12:00 noon in the Commission
conference room, 3rd Floor, W. Harmon Turner Building, Collier County Government Center,
3301 East Tamiami Trail, Naples, Florida. In addition to Board members, County Manager
James Mudd or Leo Ochs, Deputy County Manager, County Attorney Jeffrey A. Klatzkow, and
Assistant County Attorney Steven T. Williams will be in attendance. 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.
BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY, FLORIDA
DONNA FIALA, CHAIR
DWIGHT E. BROCK, CLERK
by: /s/ Patricia L. Morgan
Deputy Clerk
(SEAL)
C. ,., ~,.. "F "'"i"".
. ; i', L_ r,:' ~:; . _
IN THE CIRCUIT COURT OF THE 20TH JUDmf tfR~LWt~hL r
IN AND FOR COLLIER COUNTY, FL<2~~ 26 ^H lr. ': l
CASE NO.: 08-7794-CA
Agenda Item No. 12A
September 15, 2009
Page 3 of 71
CRAlG 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 (ItLDCIt) 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 OIde Cypress POO, She defines "preserve" as the Conservation Tract
shown on the plat maps pertaining to OIde Cypress.
The Griders' challenge is two fold:
· First, they assert that Ms. lstenes' 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 Grider and Amber Grider v.s. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 4 of 71
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 Griders submitted the following:
1. Affidavit of Craig Grider 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. Istenes' predecessor in
office. He knew the legislative history, how the LDC changed in 2003/04,
and how the LDC was previously applied to grandfathered PUDs before
Ms. Istenes' new interpretation. He testified that OIde Cypress was
grandfathered under the old rules and earlier interpretation before the
2003/04 amendments.
(b) Ron Nino. He was current Planning Manager in 1999/2000 (and Susan
Istenes' supervisor) when Olde Cypress was approved. He was in charge
of the OIde 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 Westendorff. 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 Griders' house is more than 25 feet from the
wetland preserve line as opposed to the Conservation Tract line.
(e) Karen 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 amendments 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 affmned that
there are at least 30 other PUDs in similar shape.
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Craig Grider and Amber Grider V.i'. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Aqenda Item No. 12A
September 15, 2009
Page 5 of 71
(f) Keith Sowers. He was the builder with Stiles-Sowers Construction, Inc.
who constructed the Griders' home and received setback information from
the County. County staff told him where to place the house on the
Griders' lot and the slab location passed inspection on multiple occasions.
No mistake was made.
(g) James Allen. He is a home designer who works with the architectural frrm
which designed the Griders' 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 Griders' house is in full
compliance with all of the SFWMD rules. He confirmed 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 unrebutted. In response to the motion, the County submitted the
Affidavit of Susan Istenes, who repeats her interpretation and states that the Griders 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.
(Grider Aff. ~2).
2. The side yard of the Griders' lot abuts an area in the Olde Cypress PUD
development designated on the Olde Cypress plat as a "Conservation Tract." (Grider AfI. ~3).
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Craig Grider and Amber Grider VI. Collier County
Case No. 08-7794-CA
Order Granting Gridm' Motion for Summary Judgment
Agenda Item NO.1 LA
September 15, 2009
Page 6 of 71
3. The Conservation Tract consists of wetlands preserves, upland buffering, and
upland preserves. A copy of a plan identifying the Gridersl lot (Lot 28, Tract 5) in relation to the
wetlands preserve and upland buffer is depicted on Exhibit "1.,,)
4. Prior to purchasing their lot in 2006, the Griders sought information from the
Collier County Land Development staff as to applicable construction setbacks. (Grider Aff. 15).
5. The Griders were assured that the lot was a comer 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
(Grider Aff. '6).
6. Prior to purchase, Mr. Grider had an e-mail exchange with County staff. (Ex. 42)
Mr. Grider sent a copy of the OIde 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. Grider also
handwrote on the plat map the word "preserve," further indicating that his lot abutted a preserve.
In his e-mail, Mr. Grider 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 cuI-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 51
on the 2 sides. . .. Also, the rear of the lot is preserve, not golf
course.
Mr. Grider was abundantly clear that his lot abutted a preserve, and that the PUD construction
setback controlled. This was 5 feet because a side yard abutted the preserve.
1 The exhibits reference the Exhibit Package submitted in support of the Griders' Motion for Summary Judgment.
4
Craig Grider and Amber Grider vs. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 7 of 71
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. (Grider Aff. ~7-9) Specifically,
· In July 2006, the builder submitted the construction plans for a building
permit. (Grider Aff. ~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
comer lot, the side yard setbacks were reviewed and approved by two
zoning plan reviewers. (Grider Aff. ~28; Ex. 18)
· A building permit was issued in September 2006. (Grider AfT. ~29)
· 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. (Grider Aff. ~30;
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.
(Grider Aff. ~31; Exs. 19, 20) The Grider lot is further buffered from the preserve by a retaining
wall along the entire rear property line. (Grider Aff. ~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 Kolflat,
and her stepfather, Planning Commissioner Tor Kolflat, made complaints to County staff and the
Board of County Commissioners ("BCC") as to the side yard setbacks, claiming that special
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Craig Grider and Amber Grider liS. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 8 of 71
setbacks were applicable to lots abutting preserves. They complained that the view of the
preserve was now partially blocked. (Grider Aff. '11, Ex. 44).
10. Following the complaints, the County refused to issue a :final Certificate of
Occupancy ("CO"). The County has only issued a temporary CO. (Grider Afr. '39, 40).
11. The complaint was first addressed at a BeC meeting in October 2007, without
notice to the Griders. At this meeting, the Griders were accused of colluding with County staff
to obtain special treatment from code provisions. The Bee appointed a special investigator,
Lawrence A. Farese, Board certified and licensed Florida attorney, to investigate. (Transcript
Ex. 21; Grider Aff. ~41)
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
Grider home violated "preserve setbacks." (Grider Aff. '42)
13. MI. Farese investigated the situation and wrote a report dated December 7, 2007
in which he concluded that there was no collusion by the Griders with staff, 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 Planning 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 disagreement with Mr. Farese and requested an Official Interpretation be
obtained from Ms. Istenes pursuant to LDC Sec. 10.02.02 F. (Ex. 23; Grider Aff. '45-47)
15. Planning Commissioner Kolflat had four meetings with County staff on this issue
commencing in June 2007. (Grider Afr. '38; Commissioner Koltlat's letter, Ex. 46) Planning
Commissioner Kolflat and counsel for Carol Kolflat and Melissa Showalter continued meeting
6
Craig Grider and Amber Grider VS. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summmy Judgment
'Agenda Item No. 12A
September 15. 2009
Page 9 of 71
with BCC members on this issue on multiple occasions thereafter. (Grider Aff. ~38; Ex. 45 _
BCC calendars) Mr. Kolflat's involvement was confirmed by the County's independent
investigator, Lawrence Farese. (Grider Aff. ~38; Farese Report Ex. 22)
16. The Griders were initially not given notice of the Official Interpretation
proceeding before Ms. Istenes. The County deemed this to be a general request for an
interpretation as to the Olde Cypress PUD in general, rather than one directed at a specific piece
of property. After hearing of the matter, the Griders complained, but the County refused to allow
the Griders to appear and participate before Ms. Istenes, (Grider Aff. ~13; 52-57; see also Ex's.
23-27) Instead., they were directed to make any argument in writing to the County Attorney.
17. Susan Istenes 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. (Grider Afr. ~14; Ex. 28, 29)
18. Ms. Istenes refused to consider estoppel as it related to the Griders, as she deemed
the request to be only in general as to OIde Cypress, not specific as to the Griders. (Grider Aff.
1[68) She stated at p. I of Ex. 29:
Because the official interpretation request is not exclusive to the
single property which is the subject of Ms. Cooper's letter (Grider
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
Craig Grider and Amber Grider VS. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 10 of 71
19. Ms. Istenes' Official Interpretation was a change from the way that the LDC had
been historically interpreted and applied. (Grider Aff. '15; Affidavits of Nino, Bishop,
Westendorf) 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 Griders requested infonnation 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; Grider Aff. ~69)
22. According to the new interpretation, the Griders' house and accessory pool
structure would be in violation of the special preserve setback requirements and would have to
be tom down. (Grider Aff. '70)
23. The Griders 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. (Grider Aft. 172; Ex. 31)
24. The Griders exhausted administrative remedies by appealing the Official
Interpretation under procedures set forth in LDC Sec. 10.02.02. However, in their papers, the
Griders reserved all objections to the proceedings including estoppel arguments and
constitutional claims. (Grider Aff. 173)
25. At the hearing before the BCe, the Chair ruled that the issues to be heard were as
to OIde Cypress setbacks in general and that site specifics as to the Grider home and estoppel
8
Craig Grider and Amber Grider liS. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 11 of 71
issues would not be heard. (Grider Afr. ~84) At the BCC hearing, the following ruling was
made by the BCC Chair during opening statement:
MS. COOPER: . . .The third reason that I'd like to address is that
the Griders, when staff approved the Griders' house, you're going
to see that the Griders' 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 three has nothing to do with
the official interpretation.
MS. COOPER: Well, I'd 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)
. . .
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 lO-day tie-in survey. After the
fOWldation is poured, they have a lO-day tie-in survey that goes
back to the COWlty 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.
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Craig Grider and Amber Grider liS. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
. Agenda Item No. 12A
September 15, 2009
Page 12 of 71
CHAIRMAN HENNING: 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 Griders' opening statement and nine
witnesses 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 OIde 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 COWlty Preservation Standards (Division 3.9) simply required that a certain
percentage of native vegetation be retained or "preserved" during the development process. See
1991 LDC Div. 3.9, in pertinent part:
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Craig Grider and Amber Grider VS. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 13 of 71
Division 3.9 Vegetation Removal, Protection and Preservation
... . .
3.9.5.5.
Preservation standards.
... ... ...
3.9.5.5.3.
All new residential or mixed use developments
greater than two ~ acres . , . shall retain 25 percent
of the viable naturally functioning native vegetation
on-site . . . .
Under the County's Growth Management Plan, the County's 25 percent requirement
would be satisfied by meeting the South Florida Water Management District ("SFWMD") and
Army Corps of Engineers ("ACOE") preservation requirements where there was agency
jurisdiction over the wetlands. (Aff. Karen Bishop)
As to buffering of native vegetation preservation or setbacks from preserve area, the
County Subdivision and Platting Standards (Division 3.2) only required that lot lines be platted a
minimum of 25 feet from any native vegetation preservation. However, when there was agency
jurisdiction, the 1991 LDe 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 improvements. . . Any required
improvements shall be designed and constructed in
accordance witb the design requirements and
specifications of the entity having responsibility
for approval, including all federal, state, and
local agencies. ...
... ... ...
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Craig Grider and Amber Grider VS. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A-
September 15, 2009
Page 14 of 71
3.2.8.3.4.
3.2.8.3.12.
3.2.8.4.7.
Buffer areas. Subdivisions or developments shall
be buffered for the protection of property owners
from smrounding 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.
BufJen adjacent to protected/preserve areas
shall conform to the requirements established by
the agency requiring such butTer.
* '" '"
Parks, protected areas, preservation areas,
conservation areas, recreational 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.
Easements /Platting}.
'" '" '"
3. Protected/preserve area and easements. A
nonexclusive easement 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
parcel subject to or abutting a
protected/preserve area required to be
designated on the preliminary and final
subdivision plats shall have a minimum
2S-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
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Craig Grider and Amber Grider VS. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 15 of 71
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 punuaot
to section 3.2.8.3.4.
In both her Official Interpretation and in her Affidavit, Ms. Istenes cites Sec. 3.2.8.4.7 as support
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 '7, where she omits the critical language by supplying the notation II ..."
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.
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Craig Grider and Amber Grider \IS. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 16 of 71
(See Affidavits of Bishop, Westendorf, Nino) Ms. Istenes 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 ("PUD") 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 consti~d its own separate and
non-conventional zoning district with its own development standards. See, in particular, 1991
LDC Sec. 2.2.20.2.2.
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.
2.2.20.2.1. The OIde Cypress PUD has such a table of construction setbacks.
Olde Cypress PUD Zoning Approvals and
Grandfathering of Olde Cypress
The OIde 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 SFWIvID and ACOE
exercise jurisdiction. The SFWMD and ACOE permits delineated both the jurisdictional
wetlands preserve boundaries and the surrounding buffer ar~ and a conservation easement
exists over both. See Exhibit "16."
14
Craig Grider and Amber Grider vs. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 17 of 71
In accordance with the 1991 LDC requirements. the Olde Cypress PUD Document
confmned that the County's 25% native vegetation requirement was satisfied by the larger
SFWMD wetlands preservation. The PUD Document reads:
01: * *
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. IS).
The PUD Document required that both the preserve and the uplands buffer be platted as a
Conservation area in accordance with agency permits. The Olde Cypress PUD Document also
defers to agency rules (like 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
Craig Grider and A.mber Grider vs, Collier CotuUy
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 18 of 71
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. 11-012328.
D. Development shall be punuant 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 shaD be
punuant to South Florida Water Management District Permit
No. 11-01232S.
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 jwisdiction8.J. 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 1) distinguish between the wetlands
preserve and the buffer are~ the plat itself does not show the distinction. It is unrebutted that the
16
Craig Grider and Amber Grider liS. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 19 of 71
Grider lot is more than 25 feet from the actual wetlands preserve. The plat, however, only shows
the residential parcel (lots) 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, COWlty 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 2S-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.
* * *
3.9.5.5.6 Native Preserve criteria
4. Required Setbacks to Preserves. All principal structures shall
have a minimum 25- foot setback from the boundary of any
preserve. Accessory structures and all other site alterations shall
have a minimum lO-foot setback from the boundary of any
preserve. There shall be no site alterations within the fIrst 10 feet
adiacent to any preserve unless it can be demonstrated that it will
not adversely impact the integrity of that preserve. (i.e.. Fill may
be approved to be placed within 10 feet of the upland preserve but
17
Craig Grider and Amber Grider vs. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 20 of 71
may not be approved to be placed within 10 feet of a wetland
preserve. unless it can be demonstrated that it will not neeatively
impact that wetland.)
. . .
6. ExemDtions, Applications for development orders authori7.ing
site improvements. Le.. an SDP or FSP andoD a case by case basis
a PSP. that are submitted and deemed sufficient prior to June 16.
2003 are not required to comply with the new regulations in
section 3.9.5.5.6 adopted on June 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 amendment did not apply to Olde Cypress, which was previously
platted consistent with its own zoning district containing its own specific construction setback
chart.
2004 LDC Amendments and
Removal of Deference to Agency Buffering
In 2004, the LDC was again amended as it relates to preserves. Ibis amendment
(Ordinance No. 04-08) dealt with both Division 3.9 (Native Vegetation Preservation) and
Division 3.2 (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)
3.2.8.4.7 Easements.
3. Protected/preserve area and easements. A nonexclusive
easement 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 Grider and Amber Grider vs. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 21 of 71
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 structure may be
constructed. ... unless the above setbaeks are! aeeomplished
through bufferiBg pursuant to seetiofl 3.2.8.3.4, Additional
re2Ulations regarding preserve setbacks and buffers are located in
Division 3.9. and shall be applicable for all preserves. regardless if
they are platted or simplY identified by recorded conservation
easement.
[Strikethrough and underlining indicates changes for the 1991 LDC].
The 2004 amendment also mandated for the first time an easement over preserve areas in
favor ofCoIlier County (Ex. II, Sec. 3.9.7.0,) The OIde 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 unchanged 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.
. . .
This provision [3.2.8.4.7] 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
Craig Grider and Amber Grider liS. Collier County
Case No, 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A -
September 15, 2009
Page 22 of 71
. . .
Because this 2003 amendment did not modify the setback
requirement which as been in the LDC since 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 aIde Cypress PUD and plats, however, were grandfathered
. from the 2003/04 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 grandfathered 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 of3.05.07H.
Single family residences are exempt from Sec.
3.05.07.K
20
Craig Grider and Amber Grider VS. Collier CounJy
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 23 of 71
H. Preserve Standards
. . .
3. Required setbacks
. . .
a. ...25 feet for principal 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 3.05.07H.
This language is clear and unambiguous, as Mr. Farese 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 grandfathered, but all single
family residences are exempt from the new 2003/04 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 Grider and Amber Grider \IS. Collier County
Case No. 08-7794-CA
Order Granting Grident Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 24 of 71
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 Griders 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. ISTENES'
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 grandfathered PUD's like Olde Cypress which were approved
prior to June 2003. The LOC 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 COTj). v. City of North Miami. 286 So. 2d 552, 554 (Fla. 1973); Hoffinan v.
Brevard County Bd. of Com'rs. 390 So. 2d 445 (Fla. 5th DCA 1980) ("zoning regulations are in
22
Craig Grider and Amber Grider VS. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 25 of 71
derogation of private ownership and should be interpreted in favor of the property owner"); City
of Miami v. 100 Lincoln Road. Inc.. 214 So. 2d 39 (Fla. 3d DCA 1968) (same); Colonial
Apartments. L.P. v. City 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 governments' attempt to level the playing filed by taking 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. See PW Ventures. Inc. 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 AP A - 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(1)(c).
A municipality or county that has not been expressly been made subject to the AP A by general
or special law or existing judicial decision cannot claim agency status, nor can it claim a right to
a presumption of correctness. See Cherokee Crushed Stone. Inc. v. City of Miramar. 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
Craig Grider and Amber Grider VS. Collier County
Case No, 08- 7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 26 of 71
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 actio~ judicial deference will only go so far. Osorio v. Board of
Professional Surveyors and Mappers. 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 meaning of the statute cannot be upheld.
See also Palm Beach County Canvassing Bd. v. Harris. 772 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); Holly v. Auld 450 So. 2d 217, 219 (Fla. 1984)
(same); City of Coral Gables Enforcement Bd. v. Tien. 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. Killeam Properties. Inc. v. Dept of Cmty. Affairs.
623 So. 2d 771 (Fla. 1st DCA 1993), citing Boynton 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. Rinker Materials Corp. v. City
of North Miami, 286 So. 2d 552 (Fla. 1973); Starr Tyme. Inc. v. Cohen, 659 So. 2d 1064, 1067
(Fla. 1995); Levine v. Levine. 734 So. 2d 1191, 1194 (Fla. 2d DCA 1999) (holding that the
meaning of a statute is to be gleaned from its plain language.); In re LeVY's Estate, 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 Grider and Amber Grider vs. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 27 of 71
Lastly. rules of statutory construction require that various provisions of ordinances be
read inpari materia and construed together. giving meaning to all provisions. Maggio v. Florida
Dep't of Labor and Employment Sec.. 899 So. 2d 1074. 1078 (Fla. 2005); Ortiz v. Dep't of
Health. Bd. of Medicine. 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
York. 840 So. 2d 993.996 (Fla. 2003); In re A.W. v. Dep't of Children and Family Serv.. 816
So. 2d 1261, 1263 (Fla. 2d DCA 2002); CRC v. Portesy. 731 So. 2d 770, 772 (Fla. 2d DCA
1999). Statutory interpretations that render statutory provisions superfluous are disfavored.
Allen v. Tyrone Square 6 AMC Theaters. 731 So. 2d 699, 701 (FIa. 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 Document.
In applying those rules, this Court fmds 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
grandfathered 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 Grider and Amber Grider liS. Collier County
Case No. 08- 7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 28 of 71
the time of plat that the clock stopped in this case; is that a fair
statement?
MS. COOPER: I'm waiting to hear the context that you're putting
it in.
CHAIRMAN HENNING: Well, at long of your presentation 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 I'm 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. Istenes 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 Griders supplied. It is clear that the Grider 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 against
local governments, Florida courts have frequently applied the doctrine to protect property owners
who have relied upon the permitting actions of local authorities. See, ~ Hollywood Beach
Hotel Co. v. City of Hollvwood. 329 So. 2d 10 (Fla. 1976); Sakolsky v. City of Coral Gables,
151 So. 2d 433 (Fla. 1963); Franklin County v. Leisure Properties. Ltd.. 430 So. 2d 475 (Fla. 1st
DCA 1983); Town of Largo v. Imperial Homes Corp.. 309 So. 2d 571 (Fla. 2d DCA 1975); City
26
Craig Grider and Amber Grider VS. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 29 of 71
of North Miami v. Margulies. 289 So. 2d 424 (Fla. 3d DCA 1974); City of Lauderdale Lakes v.
Com, 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. Equity Resources.
Inc. v. County of Leon. 643 So. 2d 1112 (Fla 1st DCA 1994); City of Lauderdale Lakes v. Com,
427 So. 2d 239 (pIa 4th DCA 1983). As held by the Second District Court of Appeal in Town
of Lanzo v. Imperial Homes Corp.. 309 So. 2d 571, 573 (Fla. 2d DCA 1975):
Stripped of the legal jargon which lawyers and judges have
obfuscated it with, the theory of estoppel amounts to nothing more
than an application of the rules of fair play. One party will not be
pennitted to invite another onto a welcome mat and then 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 he
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 faith;
(b) relies upon some act or omission of the government; and
(c) has made such a substantial change in position or has incurred such extensive
obligations and expense that it would be highly inequitable and unjust to destroy
the right acquired."
Id. (citing Hollywood v. Hollvwood Beach Hotel Co.. 283 So. 2d 867, 869 (Fla. 4th DCA 1973);
rev'd in part on other grounds, Hollywood Beach Hotel Co. 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. Hough v. Amato, 212 So. 2d 622 (Fla. Ist DCA 1968); Town of Largo v.
27
Craig Grider and Amber Grider VI. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 30 of 71
Imperial Homes Corp.. supr!l; Bregar v. Britton. 75 So. 2d 753 (Fla. 1954); Jones v. U.S. Steel
Credit Corp., 382 So. 2d 48 (Fla. 2d DCA 1979); Franklin County v. Leisure Properties. Ltd..
430 So. 2d 475 (Fla. 1st DCA 1983); Equity Resources. Inc. v. County of Leon. 643 So. 2d 1112
(Fla. Ist DCA 1994)). City of Lauderdale Lakes v. Com. 427 So. 2d 239 (Fla. 4th DCA 1983).
On point is City of Lauderdale Lakes, 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 then.
existing zoning ordinance, as well as the statements and actions of the City's departmental staff,
the developer had acquired a vested right to develop the property consistent with the commercial
site plan. Id. 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 Margate v. Amoco Oil
company. 546 So. 2d 1091 (Fla. 4th DCA 1989); Aiken v. E.B. Davis. Inc.. 143 So. 658 (Fla.
1932). In Margate. 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 Grider and Amber Grider VS. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 31 of 71
on the part of the city and created a vested right to develop the property consistent with the
permit application. Id. TIlls 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 pennittee. Dade County v. Bengis Associates. 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. Puhzgros, 418 So. 2d 367 (Fla. 3d DCA 1982); Hollvwood
Beach Hotel Co. v. City of Hollvwood, 329 So. 2d 10 (Fla. 1976). That principle would clearly
apply.
More importantly, in this case, there was no mistake in the issuance of the Griders'
permits. They were approved by no less than four separate County staff employees. What is
involved here is a change of interpretation - not a mistake.
Estoppel applies to a change of interpretation. In Rolinson v. City of Key West. 875 So.
2d 659 (Fla. 3d DCA 2004), the Third District Court of Appeal overturned an earlier
staff/attorney 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 agaiDst new rules later adopted.
See Sarasota Cty. V. Nat'l. City Bank of Cleveland. Oh.. 902 So. 2d 233 (Fla. 2d DCA 2005).
29
Craig Grider and Amber Grider \IS. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 32 of 71
Accardingly, the Caurt finds that even if Ms. Istenes' interpretatian was plausible, the
Caunty wauld be estapped fram applying this interpretatian an a retraactive basis to. Mr. Grider
ar athers who. are similarly situated.
ALLEGED RIGHTS
OF THE NEIGHBORS
As to. the neighbor's camplaint that the view af the preserve has been abstructed, the
fallawing cases are relevant: Messert v. Cahen. 741 So.. 2d 619 (Fla 5th DCA 1999) (held that a
landawner has no. right to. an unabstructed view af beach frant aver the neighbar's vacant
praperty, and, therefare, had no. right to. prevent canstructian af a hause an it); Tawn af
Indialantic v. Nance. 400 Sa. 2d 37 (Fla. 3d DCA 1991) (held that a landhalder has no. absolute
legal right to. an unabstructed air and light fram the adjaining land sa as to. prevent canstructio.n).
The neighbo.r's desire to. have an uno.bstructed view af the nature preserve is simply nat an
interest pro.tected under the law.
EXHAUSTION OF
ADMINISTRATIVE REMEDIES
The Co.unty argues that no.twithstanding their appeal o.f the Official Interpretatian, the
Griders shauld have co.mpleted a variance pro.cedure (at a filing fee cost af $4,000 nat to. mentio.n
legal fees invalved) to. o.btain a variance fram the interpretatio.n.
To. the cantrary, this expensive and time canswning pracedure wauld nat pravide relief
from the setback decisian- but wauld anly carve cut an exceptian far the hause as built. The
Griders' lat wauld still have a 25 fcat setback that applies to any additio.nal or new constructian.
They wauld be unable to. rebuild in the event of hurricane damage, fire and the like. Variance is
nat a remedy far Ms. Istenes' Official Interpretatio.n decisian; it is anly what the name implies-
a variance fram the decisian applicable anly in limited circumstances. Exhaustian, an the ather
30
Craig Grider and Amber Grider liS. Collier County
Case No. 08- 7794-CA
Order Granting Griders'Motion for Summary Judgment
Agenda Item No. 12A'
September 15, 2009
Page 33 of 71
hand, deals with correcting errors. See FHSAA v. Melbourne Central Catholic High School, 867
So. 2d 1281 (Doctrine of exhaustion 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 Griders a variance. The likelihood
is that proceeding with a variance application would have been futile. See Hillsborough County
v. Twin Lakes Mobile Homes Village, Inc., 153 So. 2d 64 (Fla. 2d DCA 1963) (law does not
require exhaustion where remedy would be of no avail); Patsy v. Florida Intern. University. 634
F.2d 900 (5th Cir. 1981) (Exhaustion not required where futile).
PROCEDURAL VEmCLE
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 SUDlIIUlI}' judgment or by
certiorari review.
(a) Nature of Hearing - Quasi-Judicial v. Quasi-Legislative. Actions of local
government agencies are commonly broken down into two subgroups, quasi-judicial actions and
legislative actions. Broward County v. G.B.V. In1'I. Ltd., 787 So. 2d 838, 843 (pIa 2001); Coral
Reef Nurseries. Inc. v. Babcock Co.. 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 Grider and Amber Grider vs. Co1/ier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 34 of 71
Legislative action results in the formulation of a general rule or policy. Bd. of County
Comm'rs of Brevard County v. Snyder. 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 Griders, but was a change in policy as to Olde
Cypress in general. Thus, review should be de novo.
Hernando County v. Leisure 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. lbis 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 Board of
County Commissioners of Brevard County v. Snyder. 627 So. 2d
469 (pia. 1993), for this proposition. Even if Snyder 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 Snyder to apply to a case
filed some eight years before it was...
... . .
. . . 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 aU of the
"developing community" and to numerous other properties.
32
Craig Grider and Amber Grider VS. Collier County
Case No, 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 35 of 71
We find, 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 tbe 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. Miami-Dade County v. Omnipoint Holdings. Inc.. 863 So. 2d 195, 199 (Fla. 2003).
See also Nastimo. Inc. v. City of Clearwater. 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); Board of County Comm'rs of Brevard
County v, Snyder, 627 So. 2d 469, 474 (Fla. 1993) (same); Galaxv Fireworks. Inc. v. City of
Orlando, 842 So. 2d 160 (Fla. 5th DCA 2003) (No need to exhaust administrative remedies
where claim is that the code is void ab initio; city council had no jurisdiction to make decisions
as to the constitutionality.)
In Miami-Dade County v. Omnipoint Holdings. 863 So, 2d 195 (Fla 2003), the Court
clearly held that review of the constitutionality of a local regulation is inappropriate through
certiorari review. See also. Nannie Lee's Strawberry Mansion v. Melbourne, 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 of a zoning code
section, but also its very validity or constitutionality''); Everett v. City of Tallahassee. 840 F.
33
Craig Grider and Amber Grider vs. Collier County
Case No. 08-1794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 36 of 71
Supp. 1528 (N.D. Fla. 1993) (42 V.S.C. ~ 1983 is an appropriate method of challenging quasi-
judicial action in Florida); Scott v. Polk County, 793 So. 2d 85 (Fla. 2d DCA 2001) (holding that
a 42 V.S.C. S 1983 claim is a proper cause of action to challenge a quasiiudicial denial of a
zoning request); Bannum. Inc. v. City ofFt. Lauderdale. 901 F.2d 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.
See for example. Citrus County v. Florida Rock Indus.. 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 estoppe1.) See also,
Sakolsky v. City of Coral Gables. 151 So. 2d 433 (Fla. 1963); Reserve. Ltd. v. Tovrn of
Longboat Kev, 17 F.3d 1374, 1379 (11th Cir. 1994).
Palazzo Las Olas Group, LLC v. City of Ft. Lauderdale. 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 case, the
34
Craig Grider and Amber Grider \IS. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 37 of 71
developer asserted collateral estoppel and other equitable claims that could not have been
addressed in the certiorari review process.
In Sundstrom v. Collier County, 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 filing 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 relief, or an injunction." See also. Florida Rock Industries. 726
So. 2d at 383, Town of Largo v. Imperial Homes Corp.. 309 So. 2d at 571, and Town of
Longboat Key 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 andlor an
injunction, asserting that the governmental entities' prior conduct was such that it was estopped
from taking the complained-of action).
Here, neither Ms. Istenes nor the BCe 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.I provides:
Initiation. An interpretation may be requested by any affected
person, resident, developer, land owner, government agency or
35
Craig Grider and Amber Grider vs. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 38 of 71
department, or any person having a contractual interest in land in
Collier COWlty.
(Ex. 2) The BCe is a body of elected officials - not a governmental agency.2 In addition. the
Bee was not "affected" - rather one of the planning commissioners 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 Bec
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 Omcial Interpretation Procedure Was Appellate - Not Quasi-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:
1. 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 concerning their property.
2 Collier County, created by Act dated 1923, remains a non-chartered county. Non-charter counties only have "such
power ofself-govemment as is provided by general or special law." Fla. Const. art. vrn, ~l(t). 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' bomepage recognizes its status as the "chie! legislative body" of the county, as
follows:
The Board of County Commissioners consists of 5 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 http://www.colliergov.netl)
36
Craig Grider and Amber Grider VS. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 39 of 71
(Ex. 2). Clearly, the proceeding was not quasi-judicial as to the Griders at the beginning.
The County thereafter claimed the Griders were a proper party and served "parcel
specific" notice to the Griders. 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 preswnption of
correctness and the Griders had 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, shaU Dot be authorized to
modify or reject the County Manager or his designee's or chief
building official's interpretation unless such board rmds 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 hearing, the COlUlty Attorney sent the Griders 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 County'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
Kolflat. Moreover, the Court does not believe that the BeC can act as the complaining party, the
investigative party, the initiating party and the appellate panel. This matter is ripe for de novo
37
Craig Grider and A.mber Grider vs. Collier County
Case No. 08-7794-CA
Order Granting Griders' Motion for Summary Judgment
Agenda Item No. 12A
September 15, 2009
Page 40 of 71
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 ~y of
, 2009.
l~1J~CO
Hql Cynthia A. Pivacek
Judge of the Circuit Court
l
I
eODies fumlshed to:
Margaret L. Cooper, Esq" Jones, Foster, Johnston & Stubbs, P.O. Box 3475, West Palm Beach. FL 33402-3475; and
Steven T. Williams, Esq., Office of the County Attorney, 3301 E. Tamiami Tr., 8th Fl., Naples. FL 34112.
P:\IX>CS\25190\OOOOl\PLD\1 S72827.DOC
order granting motion summary judgment
38
Agenda Item No. 12A
September 15, 2009
Page 41 of 71
JONES
FOSTER
JOHNSTON
& STUBBS, P A
Attorneys and Counselors
Ragler Center Tower. Suite 1100
50S SOUlh Flagler Drive
West Palm Beach, Florida 33-lUl
Telephone 156J ) 659-3000
Mailing Address
Pust Office Box .~475
West P<llm Beach, Hurida 33402-34.1'
Margaret L. Cooper, Esquire
Direct Dial: 561-650-0464
Direct Fax; 561-650-0422
E-Mail: mcooper@jones-foster.com
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July 22, 2009
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Steven T. Williams, Esq.
Office of the County Attorney
3301 East Tamiami Trail, 8th Floor
Naples, FL 34112
c,,)
Re: Grider vs. Collier County; Cases No. 08-7794-CA and 09-3164-CA
Our File No. 25190-1 and 25190-2
Dear Mr. Williams:
Enclosed please find our Motion for Sanctions pursuant to Florida Statute S 57.105. I am serving
a copy of this Motion on you, but I am not filing it at this time. Under Florida Statute S 57.1 05,
this Motion may be served, but not filed with or presented to the Court unless twenty-one days
after service of the Motion we challenge paper, claim, defense, contention, allegation, or denial
is not withdrawn or appropriately corrected.
Thank you for your attention to this matter.
Sincerely,
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
Byl&~ ---
arga t~~oper
MLC/lsm
Enclosure
cc: Mr. and Mrs. Craig D, Grider (w/enc1osure via e-mail)
P:\OOCS\25 1 90\00001 \LTR\1656638.DOC
williams resolution grider matters
www.jones-joster.conl
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Agenda Item No. 12A
September 15, 2009
Page 42 of 71
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
.....,
CRAIG GRIDER and AMBER GRIDER,
CASE NO.: 08-7794-CA
" ::J
\....,
Plaintiffs.
I ..
1'\,'
-.I
vs.
:~~
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I'..,
COLLIER COUNTY, a political
subdivision of the State of Florida,
c..)
Defendant.
/
PLAINTIFFS' MQTION FOR SANCTIONS
PURSUANT TO FLORIDA STATUTE & 57.105(1)
Plaintiffs, CRAIG GRIDER and AMBER GRIDER (the "Griders"), by and through
undersigned counsel and pursuant to Florida Statute S 57.105(1), hereby files this their Motion
for Sanctions against Defendant, COLLIER COUNTY (the "County), and as grounds therefore
states:
1. On October 7, 2008, the Griders filed their Complaint an action for declaratory
judgment, injunctive relief, and other appropriate relief or, in the alternative, a petition for writ of
certiorari to review a quasi judicial action of Collier County. The Griders challenged an Official
Interpretation made by Collier County with respect to construction setbacks to "preserves" or
"native vegetation retainage" within the meaning of the Collier County Land Development Code
("LDC"), which substantially affected the Griders' real property. The Griders sought the
following relief:
(a)
A declaratory judgment that the Official Interpretation procedures set forth
in LDC Sec. 10.02,02 F do not apply to this situation, the procedure was
not a quasi judicial proceeding, and/or the procedure is unconstitutional as
applied to this situation;
(b)
A declaratory judgment that the pertinent LDC provisions pertaining to
setbacks are not ambiguous, do not need "interpretation," and that the
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Agenda Item No. 12A
September 15, 2009
Page 43 of 71
.j
construction setbacks for the Olde Cypress PUD are controlled by the
construction setback chart in the PUD Document;
(c) A declaratory judgment that the Olde Cypress PUD is grand fathered and
exempt from amendments to the LDC adopted in 2003/04 pertaining to
"preserve setbacks;"
(d) A declaratory judgment that the County is equitably estopped from
enforcing any new interpretation as to the OIde Cypress PUD; and
(e) An injunction enjoining further administrative proceedings and directing
Collier County to issue the Griders a Certificate of Occupancy;
(f) In the alternative, if the Court determines that LDC Sec. 10,02.02 F
(Official Interpretation) does apply and that it was a quasi judicial
proceeding, then that the Court issue a writ of certiorari and quash the new
"interpretation" issued by Collier County.
2. On June 24, 2009, an Order was entered granting declaratory judgment in favor of
the Griders and directing the County to issue the Griders a final certificate of occupancy with
regard to their real property.
3. There is no justiciable issue ofIaw or fact that rebuts the trial court's findings and
rulings.
4. Sanctions should be imposed by way of attorneys' fees and costs in favor of the
Griders if the County appeals or further defends this action.
FLORIDA STATUTE ~ 57.105 IS APPLICABLE
Florida Statute 9 57.105 provides:
(1) Upon the court's initiative or motion of any party, the court
shall award a reasonable attorney's fee to be paid to the prevailing
party in equal amounts by the losing party and the losing party's
attorney on any claim or defense at any time during a civil
proceeding or action in which the court finds that the losing party
or the losing party's attorney knew or should have known that a
claim or defense when initially presented to the court or at any
time before trial:
(a) Was not supported by the material facts necessary to establish
the claim or defense; or
2
Agenda Item No. 12A
September 15, 2009
Page 44 of 71
(b) Would not be supported by the application of then-existing law
to those material facts.
It is clear that F.S. ~ 57,105 is applicable.
WHEREFORE, Plaintiffs, CRAIG GRIDER and AMBER GRIDER, respectfully request
that this Court enter an order granting them an award of attorneys' fees and costs in their favor
and specifically awarding attorneys' fees in the amount of $14,445.15, paralegal fees in the
amount of $3,738.00, costs in the amount of $13,547.62, and granting such further relief as
deemed just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via first
class U.S. Mail, addressed to: Steven T. Williams, Esq., Office of the County Attorney, 3301 E.
Tamiami Tr., 8th Fl., Naples, FL 34112, this
day of July, 2009.
Respectfully submitted,
JONES, FOSTER, JOHNSTON & STUBBS
Attorneys for Plaintiffs
505 South Flagler Drive
Suite 1100; P.O. Box 3475
West Palm Beach FL 33402-3475
Telephone: (561) 659-3000
Facsimile: (561) 650-0422
ByJ1 (/;---
Margare . Cooper. Esq.
Florida Bar No: 217948
mcooper@iones-foster,com
P:\DOCS\25 1 90\00001 \PLD\1636803.DOC
motion sanctions tlorida statute 57.105
3
Agenda Item No. 12A
September 15, 2009
-, Page 45 of 71
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Agenda Item No. 12A
September 15, 2009
Page 47 of 71
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
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CRAIG GRIDER and AMBER GRIDER,
CASE NO.: 09-3164-CA
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Plaintiffs,
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vs.
COLLIER COUNTY, a political
subdivision of the State of Florida,
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Defendant.
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PLAINTIFF. CRAIG GRIDER'S OFFER OF SETTLEMENT
TO DEFENDANT. COLLIER COUNTY
PURSUANT TO FLA. STAT. & 768.79 AND FLA. R. CN. PROC.1.442
Plaintiff, CRAIG GRIDER, makes this good-faith offer of settlement pursuant to Fla.
Stat. S 768.79 and Fla. R. Civ. Proc, 1.442 as follows:
1. Applicable Law Governing this Offer of Settlement: Fla. Stat. ~ 768.79 and
Fla. R. Civ. Proc. 1.442.
2. Party Making Offer of Settlement: Plaintiff, Craig Grider,
3. Party to Whom Offer of Settlement is Being Made: Defendant, Collier County
("the County"").
4. Claims to be Resolved: This Offer of Settlement seeks settlement of all claims
instituted, or that could have been instituted, by Plaintiff Craig Grider against the County in this
action,
5. Total Amount of the Offer of Settlement: Plaintiff Craig Grider shall pay the
County nothing.
6. Non-Monetary Terms of this Offer of Settlement: Plaintiff shall be issued a
final certificate of occupancy. The County shaIl be estopped from applying the new
.
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Agenda Item No. 12A
September 15, 2009
Page 48 of 71
interpretations (under appeal in the above case) of the Land Development Code to the property
of Plaintiffs Craig Grider and Amber Grider. The Griders' home shall be deemed in full
compliance with all applicable codes of Collier County.
7, Relevant Conditions: The parties shall jointly agree to dismiss this action under
the tenns of this settlement.
8, The Amount Offered to Settle a Claim for Punitive Damages, If Any: There
is no claim for punitive damages asserted.
9, Whether the Offer of Settlement Includes Attorney's Fees and Whether
Attorney's Fees are Part of the Legal Claim: This Proposal includes attorneys' fees claimed
by Plaintiff Craig Grider against the County and by the County against Plaintiff Craig Grider.
This Offer of Settlement includes waiving any claim for attorney's fees and costs either party
may have.
10. Withdrawal: This Offer of Settlement may be withdrawn in writing provided
that such written withdrawal is delivered before a written acceptance is delivered. Once
withdrawn, the offer is void.
11. Acceptance: This Offer of Settlement is deemed rejected unless accepted by
delivery of a written notice of acceptance within THIRTY (30) days after service of the Offer of
Settlement.
12. Inadmissible Settlement Communication: This Offer of Settlement is
inadmissible pursuant to Fla. Stat. S 90.408 in any proceeding against Plaintiffs and Defendant,
other than as provided by Fla, Stat. S 768.79.
13. Service: This Offer of Settlement is being served via Facsimile and First Class
u.s. Mail, and no oral communications shall constitute an acceptance, rejection or counter-offer.
2
"
Agenda Item No. 12A
September 15, 2009
Page 49 of 71
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via
Facsimile and First Class U.S. Mail, addressed to: Steven T. Williams, Esq., Office of the
County Attorney, 3301 E. Tamiami Tr., 8th Fl., Naples, FL 34112, this /~ ~day of July,
2009,
Respectfully submitted,
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
Attorneys for Plaintiffs
505 South Flagler Drive
Suite 1100; P.O. Box 3475
West Palm Beach FL 33402-3475
Telephone: (561) 659-3000
Facsimile: (5 1) 650-0422
By
Margaret ,Cooper, Esq.
Florida Bar 0: 217948
mcooper(a'd ones- foster. com
P:\DOCS\25190\OOOO2\PLD\I609036.DOC
offer settlement craig grider
3
!
Agenda Item No. 12A
September 15, 2009
Page 50 of 71
~
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CRAIG GRIDER and AMBER GRIDER,
CASE NO.: 08.7794-CA
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vs.
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COLLIER COUNTY, a political
subdivision of the State of Florida,
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Defendant.
I
PLAINTIFF. CRAIG GRIDER'S OFFER OF SETTLEMENT
TO DEFENDANT. COLLIER COUNTY
PURSUANT TO FLA. STAT. ~ 768.79 AND FLA. R. eN. PROC. 1.442
Plaintiff, CRAIG GRIDER, makes this good.faith offer of settlement pmsuant to Fla.
Stat. ~ 768.79 and Fla. R. Civ, Proe. 1.442 as follows:
1. Applicable Law Governing this Offer of Settlement: Fla. Stat. S 768.79 and
Fla. R. Civ. Proe. 1.442.
2. Party Making Offer of Settlement: Plaintiff, Craig Grider.
3. Party to Whom Offer of Settlement is Being Made: Defendant, Collier County
("the County"").
4. Claims to be Resolved: This Offer of Settlement seeks settlement of all claims
instituted, or that could have been instituted, by Plaintiff Craig Grider against the County in this
action.
5. Total Amount of the Offer of Settlement: Plaintiff Craig Grider shall pay the
County nothing.
6. Non-Monetary Terms of this Offer of Settlement: Plaintiff shall be issued a
final certificate of occupancy. The COW1ty shall be estopped from applying the new
!
Agenda Item No. 12A
September 15, 2009
Page 51 of 71
interpretations (under appeal in the above case) of the Land Development Code to the property
of Plaintiffs Craig Grider and Amber Grider. The Griders' home shall be deemed in full
compliance with all applicable codes of Collier County.
7. Relevant Conditions: The parties shall jointly agree to dismiss this action under
the tenns of this settlement.
8. The Amount Offered to Settle a Claim for Punitive Damages, If Any: There
is no claim for punitive damages asserted,
9. Whether the Offer of Settlement Includes Attorney's Fees and Whether
Attorney's Fees are Part of the Legal Claim: This Proposal includes attorneys' fees claimed
by Plaintiff Craig Grider against the County and by the County against Plaintiff Craig Grider.
This Offer of Settlement includes waiving any claim for attorney's fees and costs either party
may have.
10. Withdrawal: This Offer of Settlement may be withdrawn in writing provided
that such written withdrawal is delivered before a written acceptance is delivered, Once
withdrawn, the offer is void.
11. Acceptance: This Offer of Settlement is deemed rejected unless accepted by
delivery of a written notice of acceptance within THIRTY (30) days after service of the Offer of
Settlement.
12. Inadmissible Settlement Communication: This Offer of Settlement is
inadmissible pursuant to Fla. Stat. S 90.408 in any proceeding against Plaintiffs and Defendant,
other than as provided by Fla. Stat. ~ 768.79.
13. Service: This Offer of Settlement is being served via Facsimile and First Class
u.s. Mail, and no oral communications shall constitute an acceptance, rejection or counter-offer.
2
..
Agenda Item No. 12A
September 15. 2009
Page 52 of 71
CERTIFICATE OF SERVICE
I HEREBY CERTJFY that a true and correct copy of the foregoing was sent via first
class U.s. Mail, addressed to: Steven T, Williams, Esq., Office of the County Attorney, 3301 E.
Tamiami Tr., 8th Fl., Naples, FL 34112, thisd2! ~ day of July, 2009.
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
Attorneys for Plaintiffs
505 South Flagler Drive, Suite 1100 (33401)
Post Office. Box 3475
West Palm Beach FL 33402-3475
Telephone: (561) 659-3000
Facsimile: (561) 650-0422
BY~
Margaret
Florida B No: 217948
mcooper@iones-foster.com
P:\DOCS\25190\OOOOl \PLD\1636720.DOC
offer settlement craig grider
3
Agenda Item No. 12A
September 15, 2009
Page 53 of 71
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
C~1\IG GRIDER and AJ..1BER GRIDER,
CASE NO.: 09-3164-CA
Plaintiffs,
vs,
COLLIER COUNTY, a political
subdivision of the State of Florida,
~.
~,
Defendant.
C)
/
PLAINTIFF. AMBER GRIDER'S OFFER OF SETTLEMENT
TO DEFENDANT. COLLIER COUNTY
PURSUANT TO FLA. STAT. 6768.79 AND FLA. R. CIV. PROC. 1.442
Plaintiff, AMBER GRIDER, makes this good-faith offer of settlement pursuant to Fla.
Stat. S 768.79 and Fla. R. Civ. Proc. ] .442 as follows:
1. Applicable Law Governing this Offer of Settlement: Fla. Stat. 9 768.79 and
Fla. R. Civ. Proc. 1.442.
2. Party Making Offer of Settlement: Plaintiff, Amber Grider.
3. Party to Whom Offer of Settlement is Being Made: Defendant, Collier County
("the County"").
4. Claims to be Resolved: This Offer of Settlement seeks settlement of all claims
instituted, or that could have been instituted, by Plaintiff Amber Grider against the County in this
action.
5, Total Amount of the Offer of Settlement: Plaintiff Amber Grider shaH pay the
County nothing,
6. Non-Monetary Terms of this Offer of Settlement: Plaintiff shall be issued a
final certificate of occupancy. The County shall be estopped from applying the new
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Agenda Item No. 12A
September 15, 2009
Page 54 of 71
interpretations (under appeal in the above case) of the Land Development Code to the property
of Plaintiffs Craig Grider and Amber Grider. The Griders' home shall be deemed in full
compliance with all applicable codes of Collier County.
7. Relevant Conditions: The parties shall jointly agree to dismiss this action under
the terms of this settlement.
8. The Amount Offered to Settle a Claim for Punitive Damages, If Any: There
is no claim for punitive damages asserted.
9. Whether the Offer of Settlement Includes Attorney's Fees and Whether
Attorney's Fees are Part of the Legal Claim: This Proposal includes attorneys' fees claimed
by Plaintiff Amber Grider against the County and by the County against Plaintiff Amber Grider.
This Offer of Settlement includes waiving any claim for attorney's fees and costs either party
may have.
10. Withdrawal: This Offer of Settlement may be withdrawn in writing provided
that such written withdrawal is delivered before a written acceptance is delivered. Once
withdrawn, the offer is void,
11. Acceptance: This Offer of Settlement is deemed rejected unless accepted by
delivery of a written notice of acceptance within THlRTY (30) days after service of the Offer of
Settlement.
12. Inadmissible Settlement Communication: This Offer of Settlement is
inadmissible pursuant to Fla. Stat. ~ 90.408 in any proceeding against Plaintiffs and Defendant,
other than as provided by Fla. Stat. ~ 768.79.
13. Service: This Offer of Settlement is being served via Facsimile and First Class
U.S. Mail, and no oral communications shall constitute an acceptance, rejection or counter-offer.
2
Agenda Item No. 12A
September 15, 2009
Page 55 of 71
CERTIFICATE OF SERVICE.
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via
Facsimile and First Class U.S. Mail, addressed to: Steven T. Williams, Esq., Office of the
County Attorney, 3301 E. Tamiami Tr., 8th Fl., Naples, FL 34112, this /~#l day of July,
2009.
Respectfully submitted,
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
Attorneys for Plaintiffs
505 South Flagler Drive
Suite 1100; P.O. Box 3475
West Palm Beach FL 33402-3475
Telephone: (561) 659-3000
Facsimile: (5 1) 650-0422
By
Margaret . Cooper, Esq.
Florida B 0: 217948
mcooper@iones-foster.com
P:\DOCS\25190\OOOO2\PLD\I609179.DOC
offer settlement amber glider
3
Agenda Item No. 12A
September 15, 2009
Page 56 of 71
IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY, FLORIDA
CRAIG GRIDER and AMBER GRIDER,
CASE NO,: 08-7794-CA
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Plaintiffs,
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vs.
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COLLIER COUNTY, a political
subdivision of the State of Florida,
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Defendant.
I
PLAINTIFF. AMBER GRIDER'S OFFER OF SETTLEMENT
TO DEFENDANT. COLLIER COUNTY
PURSUANT TO FLA. STAT. S 768.79 AND FLA. R. CIV. PROC. 1.442
Plaintiff, AMBER GRIDER, makes this good-faith offer of settlement pursuant to Fla.
Stat. S 768.79 and Fla. R. Civ. Proc. 1.442 as follows:
1, Applicable Law Governing this Offer of Settlement: Fla. Stat. S 768.79 and
Fla, R. Civ. Froe. 1.442.
2. Party Making Offer of Settlement: Plaintiff, Amber Grider.
3. Party to Whom Offer of Settlement is Being Made: Defendant, Collier County
(''the County"").
4. Claims to be Resolved: This Offer of Settlement seeks settlement of all claims
instituted, or that could have been instituted, by Plaintiff Amber Grider against the County in this
action,
5. Total Amount of the Offer of Settlement: Plaintiff Amber Grider shall pay the
County nothing.
6. Non-Monetary Terms of this Offer of Settlement: Plaintiff shall be issued a
final certificate of occupancy. The County shall be estopped from applying the new
Agenda Item No. 12A
September 15, 2009
Page 57 of 71
interpretations (under appeal in the above case) of the Land Development Code to the property
of Plaintiffs Craig Grider and Amber Grider. The Griders' home shall be deemed in full
compliance with all applicable codes of Collier COWlty.
7, Relevant Conditions: The parties shall jointly agree to dismiss this action under
the terms of this settlement.
8. The Amount Offered to Settle a Claim for Punitive Damages~ If Any: There
is no claim for punitive damages asserted,
9, Whether the Offer of Settlement Includes Attorney's Fees and Whether
Attorney's Fees are Part of the Legal Claim: This Proposal includes attorneys' fees claimed
by Plaintiff Amber Grider against the COWlty and by the County against Plaintiff Amber Grider.
This Offer of Settlement includes waiving any claim for attorney's fees and costs either party
may have.
10. Withdrawal: This Offer of Settlement may be withdrawn in writing provided
that such written withdrawal is delivered before a written acceptance is delivered. Once
withdrawn, the offer is void.
1] . Acceptance: This Offer of Settlement is deemed rejected unless accepted by
delivery of a written notice of acceptance within THIRTY (30) days after service of the Offer of
Settlement.
12. Inadmissible Settlement Communication: This Offer of Settlement is
inadmissible pursuant to Fla. Stat. 9 90.408 in any proceeding against Plaintiffs and Defendant,
other than as provided by Fla. Stat. 9 768.79.
13. Service: This Offer of Settlement is being served via Facsimile and First Class
U.S. Mail, and no oral communications shall constitute an acceptance, rejection or counter-offer,
2
Agenda Item No. 12A
September 15, 2009
Page 58 of 71
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via first
class U.S. Mail, addressed to: Steven T. Williams, Esq., Office of the County Attorney, 3301 E.
Tamiami Tr" 8th Fl., Naples, FL 34112, this e::J;P'day of July, 2009,
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
Attorneys for Plaintiffs
505 South Flagler Drive, Suite 1100 (33401)
Post Office. Box 3475
West Palm Beach FL 33402.3475
Telephone: (561) 659.3000
Facsimile: (561) 650-0422
B~~k-
Florida Bar No: 217948
mcooper(a).i ones- foster. com
P:\DOCS\25190\OOOOI \PLD\1636727 .DOC
offer settlement amber grider
3
JUL. 30. 2009 3:57PM
JONES FOSTER JOHNSTON 8< STUBBS
Agenda Item No. 12A
September 15, 2009
Page 59 of 71
NO. 611 P.1/5
JONES
FOSTER
JOHNSTON
& STUBBS, P.A.
Attorneys and Counselors
Fax Cover Sheet
PLEASE DELIVER AS SOON AS POSSfBLE TO:
Rocipient Company Fax No.
Steven T. Williams, Esq. County Attorney's Office 239-252-6300
Phone No.
239-262-2939 direct
239-252-8400 main
From: Margaret L. Cooper, Esq. Data:
Phono: 561-650-0464 Cllant-Matt&r.
RE: Grider v. Collier County
Case ND. 09-3184-CA, Circuit Court. Cotnsr County
Total number of pages Including cover:. ~
If you do not receive all pages. please call 561.050.0414.
July 3D, 2009
25190-2
From the desk of:
Margaret I.. Cooper, ESQ.
Jones, Foster. Johnston &. Stubbs. PA
505 Soutl1 Flagler Drive, SuIte 1100
West Palm aeacn, FL 33401
Direct Dial: 561-650-0464
DIrect Fax; 561-65()'0422
THe INFORMATION CONTAlNalIN THJS FACSIMI~ MeSSAGe 15 ATTORN~ Pf'MLEGEO AND IAL :noN
ONI. Y FOR THE USI3 OF 'rHIi INDIVIDUAl. OR ENTrrY I'lAMI::t> Aaove. IF THE! I'tEAtlI!f'l OF "'118 MESSAGE IS NOT T11e INTl:;NDal RECIPIENT.
YOU AR! HEReSY NOTIF1!O TliAT fW'( DISSi;MINI\l10N. CISTRlBUTlON OR COPY OF TI-IIS ~MUNlCATION IS STRICTl.Y PROHIBITED. IF
YOU HAve RiCEIV!D TI-lIS COMM~ICAnON IN EAAOR, PLeASE IMMEDIATeLY NOTIFY us S'r TELEPHONE (IF lONG DISTANCE. Pl.t;ASE
CAll COLLIiCT) ANO R5TlJ~N THE ORlGlNAl MESSAlJe TO US AT THI! MOV! ADORESS VIA THE! u.s. POSTAl.. SE/MOE.. WE WILL
REIMBURSE YOU FOR ,"OSTAGe. T~K YOU
JlL. 30. 200'3 3: 57PM
JONES FOSTER JOHNSTON 8< STUBBS
TONES
FOSTER
IOrINS1DN
&SIUBBS,PA
AU01"1IDP and COURsIIDp8
PtagJer CenrsTower, Suite 1100
50S South FlAgler Drive
West Palln Beach, Florida 33401
'Ie1=phODC (561) 659-3000
Margaret L. Cooper, Esquire
Direct Dial: 561-650..0464-
OUcct Fu: S6l-6S0..0422
B-Majl: mcooptsr@jol1Cs-foslcr.com
July 30, 2009
Via Faeslmile and U.S. MaD
Steven T. Williams. Esq.
Office of the County Attorney
3301 East Tamiami Trail, 8th Floor
Napl~ FL 34112
Re: Grider vs. Collier County - Case No. 09~3164-CA
Our File No. 25190-1
Dear Mr. Williams:
Agenda Item No. 12A
September 15, 2009
Page 60 of 71
1'10.611 P.275
Mallin: Address
Pos~OfficeBox 347S
West Palm Beach, Florida 33402-:1,475
Enclosed please find the Griders' Amended Motion for Sanctions Pursuant to F.S. ~ 57.105 in
the above-referenced. case. This Amended Motion is not being filed at this time Ilnd will not be
presented to the Court if the challenged.a11egations are withdrawn within 21 days, as provided in
Fla. Stat. ~ 57.105(4).
Thank you for your attention in this matter.
Sincerely,
JONES, FOS~ JOHNSTON & SruBBS, P.A.
BY~
argar . Cooper
MLCIsmm
Enclosure
P:\DOCS\25190\OOOO2\I.1'R\1676\ 62. DOC
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JUL. 30.2009 3:57PM
Jffi~S FOSTER JOHNSTON & STUBBS
Agenda Item No. 12A
September 15, 2009
Page 61 of71
NO. 611 P.3/5
IN THE CIRCUIT COURT OF THE 20m JUDICIAL CIRCUIT
IN AND FOR COLLlER COUNTY, FLORIDA
CRAIG GRIDER and AMBER GRIDER.
CASE NO.: 09-3164-CA
Plaintiffs.
VB.
COLLIER COUNTY, a political
subdivision of the State of Florida,
Defendant.
/
f\.MENDED
PLA.INTIFFS'MOTION FOR SANCTIONS
PURSUANf TO FLORIDA STATUTE 657.105(})
Plaintiffs, CRAIG GRIDER and AMBER GRIDER (the 'IGriders''), by lind through
undersigned counsel and pursuant to Florida Statute ~ 57.105(1), hereby file this their Amended
Motion for Sanctions against Defendant, COLLIER COUNTY (the "County). and as grounds
therefore state:
1. On April 9, 2009, the Griders moo their Complaint ohallenging an Official
Interpretation issued under the Collier County Land Development Code ("LDC'1 Sec. 10.02.02
F by Susan lstenes, Zoning and Land Developmc::nt Review Director. Tbe Griderst challenge
was two-fold:
· First, they asserted that Ms. Istenes' intexprctation was contrary to
the clear reading of the pertinent ordinances.
· Second, they asserted that if the LDC was ambiguous and Ms.
Istenes' interpretation was arguably supportable. it amounted to a
change of interpretation ~ accordingly, the County should be
equitably estopped to apply Ms. Istenes' intetpretatioD to them.
JLL. 30. 2009 3: 57PM
JONES FOSTER JOI-NSTON & STUBBS
Agenda Item No. 12A
September 15, 2009
Page 62 of 71
NO. 611 P.4/5
2. On June 24, 2009, an Order was entered granting declaratory judgment in favor of
the Griders in the case of Grider v. Collter County, Case No. 08-7794-CA" and directing the
County to issue the Gridcrs a final certificate of occupancy with regard to their real property.
3. 'The same principle of equitable estoppel and change of long standing
interpretation apply to the instant case.
4. Further, one of the issues appealed against the Orlders was untimely,
5. There is no justiciable issue of law or fact.
6. Sanctions should be imposed by way of attorney's fees and costs in favor of the
Griders.
FLORIDA STATUTE i 57.10S IS APPLICABLE
Florida Sutute ~ 57.105 provides:
(1) Upon the court's initiative or motion of any party, the court
shall award a reasonable attorneys fee to be paid to the prevailing
party in equal amounts by the losing party and the losing party's
attorney on any claim or defense at 811Y time during 2. civil
proceeding or action in whioh the oourt finds that the losing party
or the losing party's attorney knew or should have known that a
claim or defense when initially presented to the court or at any
time before trial:
(a) Was not supported by the material facts necessary to establish
the claim or defe:uae; or
(b) Would not be supported by the application ofth.en...existing law
to tbose material facts.
It is clear that F.S. ~ 57.105 is applicable.
WHEREFORE, Plaintiffs, CRAIG GRIDER and AMBER GRIDE~ respectfully request
that this Court enter 2m order granting them an award of' attorneys. fees and costS in their favor I
and granting such further relief as deemed just and proper.
2
JUL. 30 . 2009 3: 57PM
JONES FOSTER JOHNSTON & STUBBS
Agenda Item No. 12A
September 15, 2009
Paqe 63 of 71
NO. 611 P. 5"/5
CERTQITCATEOFSER~CE
I HEREBY CERTIFY that a true and oorrect copy of the foregoing was sent by First
Class U.S. Mail and Facsimile, addressed to: Steven T. Williams. Esq.. Office of the County
Attorney, 3301 E. Tamiami Tr., 8th Fl., Naples, FL 34112, this ~ 0 day of July. 2009.
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
Attorneys for Plaintiffs
505 South Flagler Drive, Suite 1100 (33401)
Post Office Box 3475
West Palm Beach FL 33402~347S
Telephone: (561) 659-3000
Facsimile: (561) 650-0422
Br ~_____
Margaret L. Cooper, Esq.
Florida BarNo: 217948
mcoo,pcr@jones-foster.com
---
P:\DOCS\2S1 !lO'.OOOO2\I'LD\HS76144.POC
ITll;Jtlon .-.eti0l'l~ amended Ollriclll BtI\U1a 57,1 os
3
J~_.30.2009 3:58PM
JONES FOSTER JOHNSTON & STUBBS
Agenda Item No. 12A
September 15, 2009
Page 64 of 71
NO.612 P.1/5
JONES
FOSTER
JOHNSTON
& STUBBS, P A.
Attorneys and Counselors
Fax Cover Sheet
PUWSE PELIWR AS SOON AS pOssraLE TO:
Recipient Campilny Fax No.
Steven T. Wlllfamst Esq. County Attorney's Offlce 239-252-6300
Phone No.
239-252-2939 direct
239-252-8400 main
From: Margaret L. Cooper, Esq. Date:
Phone: 561-650-0464 Cllent-Mettec':
RE: Grider v. Collier County
Case No. 08.7794-CA. Circuit Court, Collier County
Total number of pages inctuding cover: . S'"'
If you do not receive all pages. please call 5610G50.Q48.4.
July 30, 2009
25190-1
From the deSk of:
Margaret L Cooper, Esq.
Jones, Foster. Johnston & Stubbs. P.A.
505 South Flagler Olive, Suite 1100
West Palm Beac:h. FL 33401
Direct Dial: 551-650-0464
Direct Fax: 561..Q60..04.22
i!-IE INFOIU.l^TlON N I~ THIS FACSIMlU: M63SAa& IS R/VILiG 0 AND cc:ll'lFlDE1!.NTW. INFO~l1ON IN
ON\. Y FOR THI! use OF 'tHE INDIVIDUAL OR ENrITY !'lAMS) MOVE. IF THE READER OF THIS MeSSAGE IS NOT THE tNTeI)a) RECPlENT.
YOU ME tfE!REBY NarlFIEO THAT ANY DlSSSMINATlON. OISTR18UTION OR CCF\' OF n-nS COMMUNICATION IS STRICTI. Y PFlOHIIT!O. III
YOU HAVE RECEIVED THIS COMMUNICATION IN ;MOA. PlEASE I~EOIATELV NOTIFY US fJ'( TS-EP'HONI! (IF LONQ OISTA/IIC!. PLl!A8E
CAll. cou.ECT) AND ~ THli ORIGINAl. MeSSAGE TO US AT TH~ AaOVE AO~S VIA TJia U.S, POSTAl. SeRVICE. wE WIU.
REIMBURSE YOU FOR POST AGi. THANK YOU
JUL.30.2009 3:58PM
JONES FOSTER JOHNSTON & STUBBS
Agenda Item No. 12A
September 15, 2009
Page 65 of 71
NO.612 P.2/5
JONES
FOSTER
JOHNSTON
& STIJBBS, PA
AttorJleys and COn.eltrs
Flagler Ccnla Thwe:., Suite 1100
50S South F1a::ler Drive
West Palm Beach.. Florida 33401
Telephone (561) 659-3000
Mailillg Addrns
Post Office Box 3475
West Palm Beach, Florida 33402.3475
Margaret L. Cooper, Esquire
Direct Dial: 561-650-0464-
Direct F~: 561-650-0422
E"MAil; mcooper@joncs.fOllter,com
July 30. 2009
Via Facsimile and U.S. Mail
Steven T. Williams, Esq.
Office of the County Attorney
3301 East Tamiami Trail, 8th Floor
Naples, FL 34112
Re: Grider VB. Collier COMty; Case No. 08-7794-CA
Our File No. 25190-1
Dear Mr. Williams:
Enclosed please find our Amended Motion for Sanctions pursuant to F1a. Stat. ~ 57.105 in the
above-referenced case. This Amended Motion is not being filed at this time and will not be
presented to the Court if the challenged allegations are withdrawn within 21 days, as provided in
Fla. Stat. ~ 57.105(4).
Thank you for your attention to this matter.
Sincerely,
JONES, FOSTER, JOHNSTON & STUBBS, P.A.
By ~~~-
MLCIsmm
Enclosure
cc: Mr. and Mrs. Craig D. Grider (w/enclosure via e-mail)
P:\OOCS\2S 190\OOOOI\I.TR\l6762~.DOC
wil1iams te motion aanetion.e ~r:d
"''''''711. ;j')fl"~_"t'Jt:+p,. ,.,..,.,.,
JUL. 30.2009 3; 58PM
JONES FOSTER JOHNSTON &. STUBBS
Agenda Item No. 12A
September 15, 2009
Page 66 of 71
NO.612 P.3/S
IN THE cm.CUIT COURT OF THE 20TH nmrCIAL CIRCUIT
IN AND FOR. COLLrBR. COUNTY, FLORIDA
CRAIG GRIDER and AMBER GRIDER.
Plaintiffs.
CASB NO.: 08-7794-CA
Ys.
COLLIER COUNTY. a political
subdivision of the State of Florida.
DefendanL
I
AMENDED
PLAINTIFFS' MOTION FOR SANCTIONS
PURSUANt TO ILORIDA STATUTE S ~7.1~(1}
Plaintiffs. CRAIG GRIDER and AMBER GRIDER (the 61Oriderslt), by and through
undc:rsisned counsel and pursWlJlt to Florida Statute ~ 57.105(1), hereby files. this their Motion
for Sanctions against Defendant, COLLIBR COUNTY (the "County). and as grounds therefore
!:tates:
1 . On October 7. 2008, the Griders tiled their Complaint an action for declaratory
judgment. injunctive relief'. and other appropriate reliefor, in the a1tcmative. a petition for writ of
certiorari to review a quasi judicial action of Collier County. The Grlci.eJll challenged an Official
Interpretation made by Collier Col.lllty with respect to construction setbacks to "preserves" or
"native vegetation retainage" within the meaning of the Collier C01U1ty Land Development Code
("LDC"), which substantially affected the Griders' real property. Tbe Griders sought tho
following relief:
(a) A declaratory judgment that the Official Interpretation procedures set forth
in LDC Sec. 10.02.02 F do not apply to this situation, the procedure was
not a quasi judicial proceeding, and/or tho procedure is unconstitutional as
applied tn this situation;
.._,,-,.-,,-_.,.,~"_. --- -,~,,",,-","-,,,--,,,"'"'-"---
JUL. 30.2009 3:58PM
JONES FOSTER JOHNSTON & STUBBS
Agenda Item No. 12A
September 15, 2009
Paqe 67 of 71
NO.612 PA/5
(b) A declaratory judgment that the pertinent !..DC provisions pertaining to
setbacks are not ambiguous, do not need "intexpretatio~ II and that the
construction setbacks for the Oide Cypress PUD are controlled by the
constrnct:ion setback chart in the PUD Document;
(c) A doclaratory judgment that the OIde Cypress PUD is grandfathered and
exempt from amendment! to the LDC adopted in 2003/04 pertaining to
"preserve setbacks;"
(d) A declaratory judgment that the County is equitably estopped from
enforcing any new interpretation as to the OIde Cypress PUn; and
(e) An injunction enjoining further administrative proceedings and directing
Collier County to issue the Griders a Certificate of Occupancy;
(f) In the alternative, if the Court determines that LDC Sec. 10.02.02 F
(Official Interpretation) does apply and that it was a quasi judicial
proceeding, then that the Court issue a writ of certiorari and quash the new
"interpretation" issued by Collier County.
2, On lune 24, 2009, an Order was entered granting declaratory judgment in favor of
the Griders and direc:ung the County to issue the Griders a final certificate of occupancy with
regard to their real property.
3. There is no justiciable issue of law or fact that rebuts the trial court's findings and
nilings.
4. Sanctions should be imposed by way of attorneys' fees and costs in favor of the
Griders if the County appeals or further defends this action.
FLORIDA STATUTE ~ 57.103 IS APPLICABLE
Florida Statute 9 57.105 provides:
(1) Upon the court's initiative or motion of any part)'t the court
shall award a reasonable attorney's fee to be paid to the prevailing
party in equal amounts by the losing party and the losing party's
attorney on any claim or defense at any time during a civil
proceeding or action in which the court finds that the losing party
or the losing party's attorney knew or should have known that a
claim or defense when initially presented to the court or at any
time before trial:
2
JtL 3el. 2009 3: 58PM JOl'ES FOSTER JOI-f'lSTON 8c STUBBS
Agenda Item No. 12A
September 15, 2009
Paqe 68 of 71
NO.612 P.5I'S
(a) Was not supported by the materla.l facts necessary to establish
the claim or defeose; or
(b) Would not be supported by the application of then --existing law
to tho~e material facts.
It is clear tha.t F,S. ~ 57.105 is applicable,
WHEREFORB. Plaintiffs. CRAIG GRIDER and AMBER GRIDER. respectfully request
that this Court enter an order granting them. an 8WlU'a of attorneys' fees and costs in their favor.
and granting such further relief as deemed just and proper.
CERTIFlCA~ 01' SJ,BVlQI
I HEREBY CERTIFY that a ttue and correct copy of the foregoing was sent via first
class U.S. Mail and facsimile addressed to: Steven T. Williams, Bsq., Office of the County
Attorney. 3301 E. TlUl'1iami Tr., 8th Fl., Naples, FL 34112, this ..E Q day of July, 2009.
Respectfully submitted,
JONES, FOSTER.. JOHNSTON &. STUBBS
Attorney.r 101' Plainriffi
50S South Flagler Drive
Suite 1100; P.O. Box 3475
West Palm Beach FL 33402-3475
Telephone: (561) 659-3000
Facsimile; (561) 650-0422
By /fJ~~
Margaret L. Cooper, Esq.
Florida Bar No: 217948
mcooper@jones-fos~.com
P:IDOCS\2SI90\CIOOOl \PLO\l67~.DOC
modcn RlClicms UI1l:mIcd f10rlda IlBtutc S7.1 OS
3
Agenda Item No. 12A
September 15, 2009
Page 69 of 71
AUG.10.2009 5:06PM JONES FOSTER JOHNSTOH & STUBBS
1'10.646 P.2/4
IN THE CIRCUIT COURT OF THE 20TH IDDICIAL CIRCUIT
m AND FOR COLLIER COUNTY. FLORIDA
CASE NO.: 08-7794-CA
CRAlO GRIDER and AMBER GRIDER.
Plaintiffs,
vs,
COLLIER COUNTY, Il political
subdivision of the State of Florida,
Defendant,
I
NOTICE OF FILING CQST AFFII>A VJT
Plaintiffs, CRAIG GRIDER and AMBER GRIDER. by md through Wldersigned counsel,
hereby give notice of filing the atta.ched original Cost Affidavit.
CERTlFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via
Facsimile and First Class U.S. Mail, addressed to: Steven T. Wr.lliam.s.. Esq., Office of the
County Attorney, 3301 East Tamiami Trail., 8th Fl., Naples, FL 34112, this IOn:. day of
August,2009.
JONES, FOSTER.I0HNSTON &. STUBBS
Attorneys for Plain.djfs
505 South Flagler Drive
Suite 1100: P.O. Box 3475
West Palm Beach FL 33402-3475
Telephone: (561) 659-3000
Facsimile: (561) 650-0422
BY~~~
Margaret . Cooper, Esq.
Florida B No: 217948
mc.oo,pertiWones-foste:r.com
P:\D0CS\2S19O\OOOO1\P1..O'.1666566. DOC
notice fililtll;cmt afficlovil
Agenda Item No. 12A
September 15, 2009
Page 70 of 71
AUG. Hl. 2009 5: 06PM .JONES FOSTER JClH'/STON & STUBBS
NO. 646 P.3/4
IN TIm Cm.curr COURT OF'THE 20m JUDICIAL CIRCUIT
IN A.'ID FOR COI.LIER COUNTY, FLORIDA
CASE NO.: 08-7794-CA
CRAIG GRIDER-1Dd AMBER GRIDER.
Plaintiffs,
VS.
COLLIER COUNTY, a political
subdivisjem oftbe State of Florlda,
Defeudant.
I
COST AFFIDA VJT
BEFORE .ME, the under5igned authority, this day penona.Ily appeared MARGARET L.
COOPER. who, first being duly sworn. deposes and says:
1. My name is Margaret L. Cooper; and I am an aUOrncy employed with tho Jaw
firm of Jones. Fostc::r. Jolmston &. Stubbs, P.A., 50s South Flagler Drive, Suite 1100, West Palm
Beach, Florida 33401, representing the Plaintiffs in this action.
2. I have penonaJ knowledge of the facts contained in this Affidavit.
3. The costs and other legal expenses that have bOlm il1currecl in the prosecution of
this action to date arc as follows:
(a) PhGtGcop.eB:
Payment of photocopies outside the offico
(b) Ji::;r:pert Fees/R.euorts:
Ron Nino's Report
PMS Inc. of Naples
Omega Consulting Group
Hole Montes
Vanasse & Daylor
Architectural Edge
Stiles Sowers
StoiR Cooney Architects
$ 4,957,39
$ 187.50
$ 7A41.09
$ 3,704.67
$ 3,762.03
$ 687.50
$ 2,000.00
$ 1,200.00
$ 5,283.00
AUG. 10. 2009 5: 06A'1 JONES FOSTER JOI-f'ISTON & STUBBS
GrUJe Y. Collier COIlrrt)'
CMc No.: 08-7794-cA
Coil Affidavit
(c) Fi.Ii.D.!! Fees:
Grider Appeal to Bee
Filing Fee/Summons Issuance
1'0: filing of Complaint in Circuit COUlt
Bce VariBncc Pre-App filing fee
(d) Service DfPJ:o~1 Fees:
Ortino Process Servers
(e) Mediation F~:
Mediator" s professional ~rvices
(1) Other:
BCe Legal Advertising Fees
re: Appeal Hearing
TOTAL COSTS:
FORlHER, AFFIANT SAYliTH NAUGHT.
-:!!0. "
FIOri~~c;:~
81' ATE OF FLORIDA
COUNTY OF PALM BEACH
Agenda Item No. 12A
September 15, 2009
Page 71 of 71
1'10.645 P.4/4
S 1,000.00
$ 310.00
$ 500.00
$ 45.00
$ 875.00
$ 31$.lQ
S32.1(j&~
~ f....going Aflidl<vit .... SWOrD to, "'-'-bed awl ackDow1odgcd bef.". me !llis ~ doy
of d- . 2009. by MlU'gB1'et L. Cooper. She is personally known to me.
N TJ\R.YPUBUC ~
. Nome: '/IJ:A ~!-
My Commission Expires: Ii,
[NOTAltY SEAL]
~~ SlJvl~ ~uno%
~: ~- Conlllll5SlOn , DD477S6~
5Jcpires Nowmber 1:1, 2009
If. 8oIIIIOf..""..... ......._ ....."'.
2