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Agenda 10/14/2008 Item #12BPage 1 of 1 Agenda Item No. 12B October 14, 2008 Page 1 of 32 COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS Item Number: 126 Item Summary: This item to be heard at 1:00 p.m. For the Board of County Commissioners to provide direction to the County Attorney regarding settlement negotiations and strategy related to litigation expenditures in the pending litigation case of Francis D. Hussey, Jr. and Mary P. Hussey and Winchester Lakes Corporation v. Collier County, The Honorable Charlie Crist, and the Florida Department of Community Affairs, Case No. 08- 6933 -CA, now pending in the Twentieth Judicial Circuit in and for Collier County, Florida. Meeting Date: 10114!2008 9:00:00 AM Approved By Community Development & Joseph K. Schmitt Environmental Scrvices Adminstrator Date Community Development & Community Development & 9129i2008 9:46 AM Environmental Services Environmental Services Admin. Approved By Jacqueline W. Hubbard Assistant County Attorney Date County Attorney County Attorney Office 9/2912008 2:59 PM -'- Approved By Jeff Klatzkow - ssistant County Attorney Date County Attorney County Attorney Office 9/2912008 3:16 PM Approved By OMB Coordinator OMS Coordinator Date County Manager's Office Office of k anagement & Budget 9129120 08 4:35 PM Approved By John A. Yonkosky Director of the Office cf Management Date County Minnager's Office Office of Management & Budget 9!2912008 7:01 Pull Approved By James V. Mudd County Manager Cate Board of County County Nslanager's Office 3;3012038 11:31 AM Commissioners file: / /C:AAgendaTest \Export\114- October %2014,% 202008 \12. %2000UNTY %20ATTORN... 10/8/2008 Agenda Item No. 123 October 14, 2008 Page 2 of 32 CIVIL ACTION SUMMONS IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA FRANCIS D. HUSSEY, JR. and CASE NO.: (�� � �L1 I O MARY P. HUSSEY, husband and wife; and WINCHESTER LAKES ) CORPORATION, a Florida corporation, -9- Q -n -i -rt vs. Plaintiffs, C 0 Py rn COLLIER COUNTY, a political subdivision of the State of Florida; THE HONORABLE QRTINOINVESTIGATIONS CHARLIE CRIST, Governor of the State of Florida; and the FLORIDA DEPARTMENT moiled D*j:l 2--Uk Tin OF COMMUNITY AFFAIRS, Served Date`i'- /s=orTime ,-riZID #< THE STATE OF FLORIDA: To All and Singular the Sheriffs of the State: YOU ARE COMMANDED to serve this Summons and a copy of the Complaint in this action on Defendant: COLLIER COUNTY, a political subdivision of the State of Florida By serving: Tom Henning, Chairman, Board of County Commissioners or James V. Mudd, County Manager 3301 E. Tamiami Trail Naples, FL 34112 Each Defendant is required to serve written defenses to the Complaint on Plaintiffs' attorneys, whose names and addresses are: John G. Vega, Esq. John G. Vega, P.A. 201 - 8th Street South, Suite 207 Naples, FL 34102 -6141 (239) 659 -3251 Margaret L. Cooper, Esquire Jones, Foster, Johnston & Stubbs, P.A. 505 South Flagler Drive, Suite 1100 West Palm Beach, Florida 33401 -3475 (561) 659 -3000 Ronald L. Weaver, Esq. and Barbara L. Wilhite, Esq. Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P.A. Suntrust Financial Centre - Suite 2200 401 East Jackson Street Tampa, FL 33602 (813) 223 -4800 within 20 days after service of this summons on that Defendant, exclusive of the day of service, and to file the original of the defenses with the Clerk o this Court either before service on Plaintiffs' attorneys or immediately thereafter. If a Defendant fails to do so, a def u t will e entered against that Defendant for the relief demanded in the Complaint. DATED this day of 2008. DWIGH E. BROCK Cl e e Circuit Court - Collier County (SEAL) uty Clerk PADOM5008\00001 \PLD\ 13 V4662. DOC summons collier county Agenda here too. `23 October 14, 2008 Fage 3 of 32 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CASE NO.: FRANCIS D. HUSSEY, JR. and MARY P. HUSSEY, husband and wife; and WINCHESTER LAKES CORPORATION, a Florida corporation, Plaintiffs, vs. COLLIER COUNTY, apolitical subdivision of the State of Florida; THE HONORABLE CHARLIE CRIST, Governor of the State of Florida; and the FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, Defendants. COMPLAINT COME NOW Plaintiffs, FRANCIS D. HUSSEY, JR. and MARY P, HUSSEY, husband and wife, and WINCHESTER LAKES, a Florida corporation (collectively "Plaintiffs "), and sue Defendants, COLLIER COUNTY, a political subdivision of the State of Florida (the "County "), THE HONORABLE CHARLIE CRIST, Governor of the State of Florida, and the FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, and state: COUNT This is a claim for damages and compensation pursuant to Florida Statutes § 70.001 in excess of $15,000. 1 Agenda item No. 12B October 14. 2008 Page 4 of 22 2. Plaintiffs, FRANCIS D. HUSSEY, JR., and MARY B. HUSSEY, husband and wife, are the owners of certain real property within Collier County, more particularly described on Exhibit "1." 3. The property described in Exhibit "1" shall be referred to as the "Subject Property." The Subject Property all lies within an area of Collier County which is commonly referred to as "North Belle Meade." 4. Plaintiff, WINCHESTER LAKES CORPORATION ("WINCHESTER LAKES "), holds an option to certain mineral rights in the Subject Property. S. Plaintiffs, FRANCIS D. HUSSEY, JR. and MARY P. HUSSEY, husband and wife, are hereinafter collectively referred to as "the Hussey Family." 6. The Hussey Family began to acquire land in Section 32 in the year 1979. By the year 1981, the Hussey Family had acquired all of Section 32 and the majority of the south half of Section 29. Thereafter, the Hussey Family continued to acquire smaller parcels adjacent to and near the initial acquisition. 7. The Subject Property has been treated as an assemblage of unified ownership throughout the years during its acquisition. 8. At the time of acquisition, the Subject Property was designated Agricultural on the zoning maps of Collier County. This zoning designation allowed agricultural use, rock mining, and low density residential housing development. 9. The majority of land in the vicinity of the Subject Property contains a tremendous quantity of DOT grade limestone rock which is easily accessible. Rock mines bordered the Subject Property to the east at the time of the Hussey Family acquisition. 2 Agenda Item No. 123 October 14. 2003 Page 5 of 32 10. The Subject Property is situated on the same vein of accessible limestone rock as was being mined by nearby property owners in the 1970's. At all times rock mining was an economically and viable use. The underground mineral rights in the subsurface rock located on the Subject Property are of substantial value. 11. The Subject Property was soil tested for rock deposit prior to its acquisition and it was the intent of the Hussey Family to utilize the Subject Property for rock mining with a residual use of residential development, which was allowed at the time of acquisition. 12. Rock mining, with residual residential development, was a reasonably foreseeable, nonspeculative land use which is suitable for the Subject Property and compatible with adjacent uses and created an existing fair market value in the property greater than the fair market value of the actual present use as vacant agricultural property. 13. At all times before, during and after the acquisition and assemblage of the Subject Property, the Hussey Family had a reasonably foreseeable, nonspeculative, investment - backed 1 expectation to use the property for rock mining, with a residual residential development use. 14. In 1989, Defendant, COLLIER COUNTY, adopted its First Growth Management Plan ( "GMP ") pursuant Florida Statutes § 163.3161 and Rule 95 -5 F.A.C. In the Future Land Use Element of the GMP, the Subject Property was designated Rural Agricultural. Under this designation, the uses allowed included agricultural use, rock mining and residential development. 15. On October 30, 1991, the County adopted Ordinance No. 91 -102, the 1991 Land Development Code ( "LDC "). Under the LDC, the Subject Property could be used for agriculture, rock mining and residential development at one unit per five acres, including Planned Use Development ( "PUD ") zoning, clustering of density, golf course and tennis club amenities, and gated communities. 3 Agenda Ite}i No. 12B October 14, 2008 Page G of 32 16. In furtherance of plans to rock mine the property, the Hussey Family entered into a contract with Florida Rock in the year 2000 for potential rock mining. When this contract expired, the Hussey Family replaced the contract with a Lease Option Agreement on November 13, 2002 with WINCHESTER LAKES for rock mining. 17. Under this Lease Option Agreement, WINCHESTER LAKES has rights to operate the rock mine and the Husseys have rights to royalties. 18. As part of obligations imposed by the Florida Department of Community Affairs and Chapter 163, Florida Statutes, on May 9, 2000, the County adopted certain Growth Management Plan Amendments. Under the GMP Amendment, an environmental assessment was to be made of the rural areas of Collier County by June 22, 2002. The State did not mandate specific requirements of the assessment or the land use designations, but only that the County conduct an assessment of environmentally sensitive lands for potential protection for the good of the public. 19. Thereafter, the County engaged in an environmental assessment of certain areas of Collier County, commonly known as "Urban Fringe," "Rural Fringe" and "Rural Lands." The County then adopted Ordinance No. 2002 -32 on June 22, 2002. This Ordinance continued the designation "Agricultural/Rural" on the Future Land Use Map for the North Belle Meade Area. However, in accordance with its environmental assessment within the North Belle Meade Area, the County also designated certain lands "Sending Lands," "Receiving Lands," and "Neutral Lands." These designations were determined by Collier County based on what it considered to be desirable environmental preservation and to avoid urban sprawl for the good of the public. 4 Agenda liern No. 12B October 14, 2�t)a Page 7 of 32 20. "Receiving Lands" are designated to continue rock mining uses. Residential uses continue to be allowed at one unit per five acres. Density bonuses are given under certain circumstances and rural villages are also allowed. 21. "Sending Lands," on the other hand, are designated so that that rock mining is no longer allowed. Any residential development is reduced to one unit per forty acres rather than one unit per five acres. In addition, the changes eliminate other development rights, such as gated communities, planned unit developments with density clustering, and accessory uses such as golf and tennis facilities. Lastly, these changes eliminate the extension of County utilities such as water and sewer services. These changes render residential development unfeasible. 22. In exchange for the taking of their mining and development rights, property owners were afforded Transfer of Development Rights ( "TDR.s "), which were in theory designed to offset economic hardships. TDRs, however, are of relatively little worth. 23. "Neutral Lands" retain substantially the same rights as before the passage of Ordinance No. 2002 -32. 24. The Subject Property was initially designated "Sending," subject to restrictions as set forth above. 25. Ordinance No. 2002 -32 also had a provision to afford a hearing to property owners who were affected by a "Sending Land" designation. County staff notified Plaintiffs of this provision that allowed property owners — who were contiguous to Neutral Lands or Receiving Lands — to bring forth evidence to support a final designation of their properties to "Neutral" or "Receiving." Accordingly, the "Sending" designation was preliminary at the initial passage of Ordinance No. 2002 -32. Agenda Item No. 12B October 14, 2008 Page 8 of 32 26. Subsequent to the passage of Ordinance No. 2002 -32, the Hussey Family attempted to obtain relief through administrative and judicial activity. This included the following: • The Hussey Family challenged Ordinance No. 2002 -32 before with Defendant, the Florida Department of Community Affairs, and litigated the same through the First District Court of Appeals. The Ordinance was found to be in compliance by the Department on July 22, 2003. The First District Court of Appeals affirmed this decision on September 15, 2004. • The Hussey Family filed a Conditional Use application for rock mining on April 30, 2003. CU- 2003 -AR -4093. This application remained pending through and including August, 2007. It was finally denied in August 2007. • The Hussey Family also filed a Petition for a final designation on April 22, 2005 as allowed under Ordinance No. 2002 -32. This is more thoroughly detailed below. 27. The effective date of Ordinance No. 2002 -32 was supposed to have been July 23, 2002. However, due to the administrative challenge to the Florida Department of Community Affairs, it did not become effective until July 22, 2003. 28. The Hussey Family first served a Bert Harris Notice with regard to the adoption of Ordinance No. 2002 -32 on the County on July 21, 2004. This was then served upon the Florida Department of Community Affairs by the County shortly thereafter. This notice contained a good faith appraisal showing a diminution in value of the surface rights and preliminary valuation of subsurface mineral rights as of July 22, 2003. 29. On January 18, 2005, the County served notice that it was of the opinion that the Florida Department of Community Affairs and the Office of the Governor of the State of Florida were required to be active participants in a Florida Statutes § 70.001 process and should bear a on Agenda !tam No. 125 October i4, 20_,3 Page 9 cf 32 proportionate share of liability for the inordinate burden imposed, contending that its actions were mandated by the State of Florida. 30. The Hussey Family continued to pursue relief as set forth above and petitioned the County for a final designation of its property, as allowed in Ordinance No. 2002 -32. 31. In particular, the Hussey Family filed a Petition for a final designation on the Subject Property of 'Receiving Lands" by way of a Petition for Amendment to the GMP as provided in Ordinance No. 2002 -32. This was ultimately consolidated with and included with a separate staff- sponsored Petition to Amend the GMP. 32. Both the Hussey Family and the staff - sponsored Petition for GMP Amendment were denied on July 25, 2007. 33. This denial of the Petition constituted the final designation for the Subject Property and the application of Ordinance No. 2002 -32 to the Subject Property within the meaning of Florida Statute § 70.001. 34. Following the denial of the GMP Amendment application, updated appraisals of the diminution in value of the loss in value of the Subject Property based on more accurate assessments of mineable rock were obtained. These good faith appraisals were exclusive of the loss of value of the residual residential development use. These appraisals were addressed as of the date of passage of Ordinance No. 2002 -32 (June 2002) and the date of the final designation of the Subject Property (July 25, 2007). 35. An amended Bert Harris Notice was served on the Defendants, Collier County, the Florida Department of Community Affairs and the Honorable Charlie Crist, Governor of the State of Florida on July 24, 2008. The updated appraisals were attached to the Notice. 7 Aaenda Item No. 12B October 14, 2003 Page 10 of 32 36. Prior to the passage and application of Ordinance No. 2002 -32, Plaintiffs had a "vested right" and/or "an existing use" in the Subject Property for rock mining and for a residual residential development use as defined in Florida Statutes § 70.001. 37. The County's actions have "inordinately burdened" the Subject Property as defined in Florida Statutes § 70.001. 38. In the alternative, the County's action in conjunction with the action of the Office of the Governor and the Florida Department of Community Affairs have inordinately burdened the Subject Property as defined in Florida Statutes § 70.001. 39. Plaintiffs are entitled to compensation for the actual loss of the fair market value of the Subject Property, including the loss of the value of the underlying rock and mineral rights and of the residual residential development use. 40. As of June 2002, the before -value is $76,500,000 — exclusive of residual use of a residential development use value. The after -value as Agricultural Land is $9,200,000. The diminution in value as of June 2002 is $67,300,000, exclusive of the loss of residual residential development use value. 41. As of July 2007, the before -value is $112,400,000 — exclusive of residual residential development use value. The after -value as Agricultural Land is $21,000,000. The diminution in value as of July 25, 2007, therefore, is $91,500,000, exclusive of the loss of residual residential development use value. 42. In addition, Plaintiffs have suffered a substantial diminution in value of the residual use as a residential development due to reduction of density to one unit per 40 acres, elimination of PUD zoning and clustering opportunities, elimination of golf course and tennis court accession, uses, and elimination of extension of county utilities. 8 Agenda Item No. ,-H3 October 14, 2c]03 age 11 of :2 43. Plaintiffs are obligated to pay the undersigned a reasonable fee. WHEREFORE, Plaintiffs request that this Honorable Court: (a) Grant Plaintiffs a bench trial to determine liability pursuant to F.S. § 70.001 on an expedited basis; (b) Determine that an existing use of the Subject Property or a vested right to a specific use existed and that Collier County, or in the alternative that Defendants either jointly and /or severally have inordinately burdened the property and determine the date of the imposition of such burden; (c) Following such determination, convene a jury to determine the total amount of compensation to Plaintiffs to be apportioned among Defendants, as applicable; (d) Enter judgment against Defendants in their proportionate shares, as applicable, for the compensation awarded, plus costs, attorney's fees and applicable interest; and (e) Grant such other and further relief as this Honorable Court determines to be equitable, just, proper and necessary under the circumstances. COUNT II 44. This is a claim for inverse condemnation based on a regulatory taking of Plaintiffs' property pursuant to Article X Sec. 6(a) of the Florida Constitution. 45. Plaintiffs reallege paragraphs 2 -27, 30 -34, and 39 -43 of Count 1. 46. Article X, Sec. 6(a) of the Florida Constitution provides: No private property shall be taken except for a public purpose and with full compensation therefore paid to each owner or secured by deposit in the registry of the court and available to the owner. 47. The decision of Collier County to designate the Subject Property "Sending Lands" and to apply the standards set forth in Ordinance No. 2003 -32 is final and ripe for adjudication: 7 Agenda Item No. 12B October 14, 2008 Page 12 of 32 (a) The validity of Ordinance No. 2003 -32 was upheld by the Florida Department of Community Affairs on July 22,'2003 and the decision was affirmed by the First District Court of Appeals on September 15, 2004; (b) The Hussey Family Conditional Use application for rock mining was denied by the Board of County Commissioners in August 2007; and (c) The Staff Sponsored and Hussey Family Petition for GMP Amendment for a final designation of the Subject Property as "Receiving Lands" or "Neutral Lands" was denied by the Board of County Commissioners on July 25, 2007. (d) There are no more administrative procedures that are available to Plaintiffs to obtain relief and/or any such procedures are futile, as the County has made a final determination of the use allowed for the Subject Property. 48. The County's actions, either alone or in conjunction with the other Defendants, constitute a categorical or per se regulatory taking of Plaintiffs' property as defined in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), because such regulations deny Plaintiffs of all economically beneficial use of the Subject Property and have, for all intents and purposes, taken all subsurface mineral rights. 49. Alternatively, the County's actions, either alone or in conjunction with the other Defendants, constitute a taking under the standard enumerated in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), because: (a) Such regulations have had an extraordinary adverse economic impact by way of a diminution in value; 10 Agenda !tern iJo. 123 October 14; 2003 r aae . 3 of 32 (b) Such regulations have totally and completely interfered with Plaintiffs' investment backed expectation of rock mining on the Subject Property and a residual use for residential development; and (c) The character of the governmental action has been for a public purpose of creating a wildlife and nature preserve on all of the Subject Property consisting of approximately 979.53 acres of acres of land. 50. Neither Collier County nor the State of Florida provided just compensation as is required by the Florida Constitution, Article X, Section 6(a). 51. Plaintiffs are entitled to recover reasonable attorney's fees under F.S. § 73.092. WHEREFORE, Plaintiffs request that this Honorable Court. (a) Grant Plaintiffs a bench trial on the taking issue on an expedited basis; (b) Declare that Collier County, or in the alternative Defendants, has taken the Subject Property without just compensation; (c) Declare the date of such taking; (d) Enter an order of taking as to the Subject Property pursuant to Chapters 73 and 74 of the Florida Statutes; (e) Require Collier County, or in the alternative Defendants, to deposit a good faith estimate of value, plus interest from the date of taking into the Registry of the Court to secure Plaintiffs during the pendency of this case for the property taken; (f) Impanel a jury of twelve (12) persons to determine the amount of compensation which Plaintiffs should be awarded for the taking of the Subject of Property by Collier County, or in the alternative Defendants; I Agenda Item No. 123 October 14, 2008 Page 14 of 32 (g) Award Plaintiffs pre - judgment interest as appropriate, and reasonable attorney's fees and costs in accordance with Chapters 73 and 74 of the Florida Statutes; and (h) Grant such other and further relief as this Honorable Court determines to be equitable, just, proper and necessary under the circumstances. RESERVATION Plaintiffs hereby give notice that they expressly reserve the right to assert any and all Federal Constitutional claims after exhaustion of state avenues to obtain just compensation. -r�F- DATED: c�C�-C. \ L , 2008. JONES, FOSTER, JOHNSTON & STUBBS, P.A. Margaret L. Cooper, Esq. Florida Bar No. 217948 E -mail: mcooper6a),jones- foster.com 505 South Flagler Drive, Suite 1100 P.O. Box 3475 West Palm Beach FL 33402 -3475 561- 659 -3000 (phone) 561 -650 -0422 (fax) Co- Counsel for Plaintiffs ?AD0CS%25008100001'TLD\ 13V 4644. DOC complaint revised 4 STEARNS, WEAVER, MILLER, WEISSLER, ALHADEFF & SITTERSON, P.A. Ronald L. Weaver, Esq. Florida Bar No. 185157 E -mail: rweaver�l7swiriwas.com Barbara L. Wilhite, Esq. Florida Bar No. 0985058 E -mail: bwilhiteCswrnwas.com Suntrust Financial Centre — Suite 2200 401 East Jackson Street Tampa, FL 33602 813 - 223 -4800 (phone) 813- 222 -5089 (fax) Co- Counsel for Plaintiffs JOHN G. VEGA, P.A. 201 8th Street, South, Suite 207 Naples, FL 34102 -6141 239- 659 -3251 (phone) 239 - 659 -3417 (fax) Attorneys for Plaintiffs By: Lj;: j -�,, 12 Jo ' Vega, Esq. Fl ida Bar No. 93626 IV Parcel Description Agenda I ern No. 12B October 14, 2003 Page 15 of 32 Parcel 1 The West 1/2 of Section 32, Township 49 South, Range 27 East, CoiIier 00342040003 County, Florida, less and except the following: a) property previously 313.94 acres condemned or conveyed to Collier County or the Department of Transportation for the State of Florida for road right-of-way purposes and b) all existing rights to and from State Road 84 for 1 -75 previously condemned by Department of Transportation for the State of Florida. Parcel 2 The East 112 of Section 32, Township 49 South, Range 27 East, Collier 00341960003 County, Florida, less and except the following: a) property previously 313.94 acres condemned or conveyed to Collier County or the Department of Transportation for the State of Florida for road right -of -way purposes, b) all existing rights to and from State Road 84 or 1 -75 previously condemned by Department of Transportation for the State of Florida. Parcel3 The South 1/2 of Section 29, Township 49 South, Range 27 East, Collier 00328560002 County, Florida, less and except the Northeast 1/4 of the Southwest 1/4 of the 260.00 acres Southwest 1/4 (Parcel 00329880008), the East 1/2 of the Southeast 1/4 of the Southeast 1/4 of the Southwest 1/4 (parce100330840008), and the West 1/2 of the Southwest 1/4 of the Southwest 114 of the Southeast 114 (Parcel 000329240004), Section 29, Township 49 South, Range 27 East, Collier County, Florida. Parcel 4 The East 1/2 of the Southeast 114 of tine Southeast 1/4 of the Southeast 1/4 of 003.38240008 the Southeast 114 of Section 31, Township 49 South, Range 27 East, Collier 4.24 acres County, Floiida. Parcel 5 The West 1/2 of the Southwest 114 of the Southwest 1/4 of the Northeast 1/4 00328640003 and the East 1/2 of the Southeast 1/4 of the Southeast 1/4 of the Noithwest 1 /4, 10.00 acres Section 29, Township 49 South, Range 27 East, Collier County, Florida. Parcel 6 00331320006 10.00 acres Parcel 7 00330480002 5.00 acres Parcel S 00.329760005 5.00 acres The Southeast 1/4 of the Southeast 1/4 of the Northeast 1/4 of Section 29, Township 49 South, Range 27 East, Collier County, Florida. The East 1/2 of the Southwest 1/4 of the Southwest 1/4 of the Northeast 1/4 of Section 29, Township 49 South, Range 27 East, Collier County, Florida. The East 1/2 of the Northeast 1/4 of the Southwest 1/4 of the Southwest 1/4 of Section 29, Township 49 South, Range 27 East, Collier County, Florida. EXHIBIT � Kiln FRANCIS D. HUSSEY, JR. and MARY P. HUSSEY, his wife; and WINCHESTER LAKES CORPORATION, a Florida corporation, Claimants, vs. COLLIER COUNTY, a political subdivision of the State of Florida; THE HONORABLE CHARLIE CRIST; and the FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, Respondents. J Agenda Item No. 12B October 14. 2008 Page 16 of 32 �coPY In Re: Notice of Claim Under Bert J. Harris, Jr. Private Property Rights ProtectixV Acb Florida Statute § 70.001 QC) r C -rti ra NOTICE OF CLAIM AND REQUEST FOR SETTLEMENT PROCEEDINGS �. AND /OR REQUEST FOR WRITTEN RIPENESS DETERMINATION TO: COLLIER COUNTY, a political subdivision of the State of Florida Attention: James V. Mudd, County Manager Tom Henning, Chairman, Board of County Commissioners Jeffrey A. Klatzkow, County Attorney TO: FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS Attention: Thomas G. Pelham, Secretary TO: THE HONORABLE CHARLIE CRIST, GOVERNOR OF THE STATE OF FLORIDA COME NOW Claimants, FRANCIS D. HUSSEY, JR., and MARY P, HUSSEY, his wife, and WINCHESTER LAKES CORPORATION, a Florida corporation, (collectively, "Claimants "), and give notice of a claim pursuant to F.S_ § 70.001, and state: FRANCIS D. HUSSEY, JR_, and MARY B. HUSSEY, his wife, are the owners of certain real property within Collier County, more particularly described on Exhibit '41 " hereto. Aaen�a Item t!o. 1 %B October 14. 2003 Hussey i,, Collier County rage 17 of 32 Notice of Claim Under F. S. d 70.001 2. WINCHESTER LAKES CORPORATION holds an option to certain mineral rights in the property described on Exhibit "I" - 3. The property described in Exhibit "1" shall be referred to as the "Subject Property." The Subject Property all lies within an area of Collier County which is commonly referred to as "North Belle Meade." 4. FRANCIS D. HUSSEY, JR. and MARY P_ HUSSEY, his wife are hereinafter referred to as "the Hussey Family "_ 5. The Subject Property has been treated as an assemblage of unified ownership throughout the years. 6_ The Hussey Family began to acquire land in Section 32 in the year 1979. By the year 198I, the Hussey Family had acquired all of Section 32 and the majority of the south half of Section 29. T At the time of acquisition, the Subject Property was designated Agricultural on the zoning maps of Collier County. This zoning designation allowed agricultural use, rock mining, and low density residential_ 8. The majority of land in Sections 29 and 32 contains a tremendous amount of DOT grade Iimestone rock; as indicated in the appraisals attached hereto. 9_ Rock mines surrounded the Subject Property to the east at the time of the Hussey Family acquisition_ The Subject Property is situated on the same vein of Iimestone rock as was being mined by nearby property owners in the 1970's and has been economically and practically viable for use as a rock mine_ The highest and best use of the Subject Property is and has been for rock mining. 2 Agenda Item No. 125 October 14, 2008 Page 18 of 32 Hussey v. Collier County Nonce of Claim Under F. S. § 70.001 10. It has been the intent of the Hussey Family to utilize the Subject Property for rock mining to meet the need for road expansion in Collier County. 11. In 1989, Collier County adopted its First Growth Management Plan ( "GMP ") pursuant Florida Statutes § 163.3161 and Rule 95 -5 F.A.C. In the Future Land Use Element of the GMP, the Subject Property was designated Rural Agricultural. Under this designation, the uses allowed included agricultural, rock mining and Iow density residential. 12. On October 30, 1991, Collier County adopted Ordinance 91 -102, the 1991 Land Development Code ( "LDC "). Under the LDC, the Subject Property could be used for agricultural, rock mining, and residential development at one unit per five acres. 13. At all times before, during, and after the acquisition and assemblage of the - Subject Property, the Hussey Family had a reasonable, non speculative, investment - backed expectation to use the property for rock mining — which has an estimated depletion time of 20 years — to ultimately be followed by a residual use of residential development after the rock was depleted and residential development expanded eastwardly in Collier County. 14. In furtherance of plans to rock mine the property, the Hussey Family entered into a mining contract with Florida Rock in the year 2000_ When this contract expired, the Hussey Family replaced the contract with a Lease Option Agreement on November 13, 2002 with WINCHESTER LAKES CORPORATION_ Under this Lease Option Agreement, WINCHESTER LAKES CORPORATION has rights to operate the rock mine and the Husseys have rights to royalties. 91 Agenda 'Teni No. 12 Oct" er 14 2003 Hussey v. Collier County Page 19 of 32 Notice of Claim Under F S. g 70. 001 15. On May 9, 2000, Collier County adopted certain Growth Management Plan Amendments. Under the GMP Amendment, an environmental assessment was to be made of the rural areas of Collier County by June 22, 2002. 16. Collier County engaged in an environmental assessment of the rural areas of the County and thereafter adopted Ordinance 2002 -32 on June 22, 2002. This Ordinance continued the designation "Agri cultural /Rural" on the Future Land Use Map for the North Belle Meade Area. However, within the North Belle Meade Area, the County also designated certain lands "Sending Lands," "Receiving Lands," and "Neutral Lands." 17. `Receiving Lands" could continue to have rock mining uses. Residential uses continued to be allowed at one unit per five acres. Density bonuses were given under certain circumstances and rural villages were also allowed. 18. "Sending Lands," other the other hand, could no longer have rock mining uses. Any residential development was reduced to one unit per forty acres, which rendered residual uses after rock mine depletion an economic impossibility. In exchange for reduction of their rights. property owners were afforded Transfer of Development Rights ( "TDR's "). TDR's, however, are of relatively Iittle worth. 19. "Neutral Lands" retained substantially the same rights as before the passage of Ordinance 2002 -32. 20- The Subject Property was initially designated "Sending," subject to further proceedings as set forth in the next paragraph. 21. The designations in Ordinances 2003 -32 were made without individual owner input_ Ordinance 2002 -32 also had a provision to afford due process to property ovvners who 4 Agenda Item No. 12B October 14, 2003 Page 20 of '2 Hussey v. Collier County Notice of Claim Under F S. f '0.001 were affected by a "Sending Land" designation. This provision allowed property owners — who were contiguous to Neutral Lands or Receiving Lands — to bring forth evidence to have their lands redesignated. Accordingly, the "Sending" designation was preliminary at the initial passage of Ordinance 2002 -32. 22. Subsequent to the passage of Ordinance 2002 -32, the Hussey Family attempted to obtain relief through administrative and judicial activity. This included the following: • The Hussey Family challenged Ordinance 2002 -32 before with the Department of Community Affairs and litigated the same through the First District Court of Appeals. The Ordinance was found to be in compliance by the Department on July 22, 2003, The First District Court of Appeals affirmed this decision on September 15, 2004. • The Hussey Family filed a Conditional Use application for rock mining on April 30, 2003. CU- 2003 -AR- 4093. This application remained pending through and including August, 2007. It was finally denied in August 2007. 23. The effective date of Ordinance 2002 -32 was supposed to have been July 23, 2002. However, due to the above administrative challenge, it did not become effective until July 22, 2003. 24. The Hussey family first filed a Bert Harris Notice with regard to the adoption of Ordinance 2002.32 on July 21, 2004_ 25. The County asserts that the Office of the Governor and the Florida Department of Community Affairs are necessary parties, are proportionately responsible for damages, and should be given notice_ Claimants are of the opinion that the inordinate burden on the Subject Property has been caused by the actions of the County, but in the alternative hereby serve the 5 Hussey V. Collier County A"otice of Claim Under FS § ?0.001 Aaend4a !fem No. 1 =E3 October 14, 21008 page 21 of 02 Governor and the Florida Department of Community Affairs notice of the County's assertion of their proportionate responsibility. 2b. The Hussey Family continued to pursue relief and filed a petition for a final designation as allowed in Ordinance 2002 -32. 27. In particular, the Hussey Family filed a Petition to redesignate the Subject Property "Receiving Lands" by way of a Petition for Amendment to the GMP as provided in Ordinance 2002 -32. This was ultimately included in a separate staff - sponsored Petition to Amend the GMP. This Petition could also have allowed for a re- designation to "Neutral Lands." 28. Both the Hussey Family and the staff - sponsored Petition for GMP Amendment were denied on July 25, 2007. 29. This denial constituted the final designation for the Subject Property and the application of Ordinance 2002 -32 to the Subject Property within the meaning of Florida Statute § 70.001. 30_ Prior to the passage of Ordinance 2002 -32, Claimants had a "vested right" and/or "an existing use" in the Subject Property as defined in Florida Statutes § 70.001. 31_ The actions of the County — or alternatively, the County's actions in conjunction with the Office of the Governor and the Florida Department of Community Affairs — have "inordinately burdened" the Subject Property as defined in Florida Statute § 70.001. 32_ Claimants are entitled to compensation for the actual loss of the fair market value of the Subject Property. R Agenda Item No. 12B October 14, 2003 Pane 22 of 32 Hussey v. Collier County Notice of Claim Under F. S, § 70.001 33. The diminution in the value of the Subject Property as of June 2002 when Ordinance 2002 -32 was adopted is demonstrated in the good faith appraisal attached as Exhibit "2" hereto. The value for the highest and best use as a Rock Mine Going Concern is $76,500,000 exclusive of any residual use after depletion of the rock. The after -value as Agricultural Land is $9,200,000. The diminution in value, therefore, is $67,300,000 plus the loss of residual use value. 34. The diminution in value as of July 25, 2007, when the County conclusively and finally applied Ordinance 2002 -32 to Claimants' property by denying the Petition to Redesignate and finalizing the designation as "Sending" Land, is demonstrated in the good faith appraisal attached as Exhibit "3" hereto. The value for the highest and best use as a -.. Rock Mine Going Concern is $112,400,000 exclusive of residual use after depletion of the rock. The after -value as Agricultural Land is $21,000,000. The diminution in value, therefore, is $91,500,000 plus the loss of residual use value_ W JF,REFORE, Claimants request the following relief: (a) That the Respondents meet with Claimants within one hundred eighty (1$0) days from the date hereof to discuss resolution and to make a settlement offer as required under Florida Statute § 70.001(4)(c), or (b) If a settlement is not reached, that the County issue a written ripeness decision pursuant to Florida Statute § 70.001(5)(a) advising how the Subject Property may be used, and (c) That the Respondents pay Claimants for diminution in value, plus interest in their proportionate amounts. 7 Nussey et al v Collier County Notice of Claim Under FS. § 70 001 Respectfully submitted, this .,- r day of �� % , 2008. JOHN G. VEGA, P.A. Counsel for Claimants 201 8th Street, South, Suite 207 Naples, FL 34102 -6141 239- 659 -3251 239 -659 -3417 (fax) r r , By: Jo G. Vega, Esq. FI ida Bar No. 9.3626 Agenda I *em No. ^2B October 14. ?QOS Page 23 Of 317 JONES, FOSTER, JOHNSTON & STUBBS, P.A. Co- Counsel for Claimants 505 South Flagler Drive, Suite 1100 P.O. Box 3475 West Palm Beach FL 33402 -3475 561- 659 -3000 561 -650 -0422 (fax) By Margaret L. rooper, Esq_ Florida Bar No: 217948 nicooper@iones-foster.com Hussey v. Collier County Notice of Claim Under F. S. , 70.001 SERVICE LIST Jeffrey A. Klatzkow, Esq. Collier County Attorney 3301 E. Tamiami Trail Naples, FL 33112 James V. Mudd Collier County Manager 3301 E. Tamiami Trail Naples, FL 34112 Tom Henning, Chairman Board of County Commissioners 3301 E. Tamiami Trail Naples, FL 34112 The Honorable Charlie Crist, Governor of the State of Florida The Capitol 400 South Monroe Street Tallahassee, FL 32399 -0001 Florida Department of Community Affairs Attn: Thomas G. Pelham, AICP, Secretary 2555 Shumard Oak Blvd_ Tallahassee, FL 32399 -2100 PADOCS12 5 00 810 00 0 1TLD113H0431 DOC notice bert hams claim 01 Agenda Item No. 123 October 14, 2008 Page 24 of 32 Parcel Description Agenda Item No. 112B October 14, 2008 Page 25 of 32 Parcel The West 1/2 of Section 32, Township 49 South, Range 27 East, Collier 00342040003 County, Florida, less and except the following: a) property previously 313.94 acres condemned or conveyed to Collier County or the Department of Transportation for the State of Florida for road right -of -way purposes and b) all existing rights to and from State Road 84 for I -75 previously condemned by Department of Transportation for the State of Florida. Parcel The East 1/2 of Section 32, Township 49 South, Range 27 East, Collier 00341960003 County, Florida, less and except the following: a) property previously 31 3.94 acres condemned or conveyed to Collier County or the Department of Transportation for the State of Florida for road right -of -way purposes, b) all existing rights to and from State Road 84 or 1 -75 previously condemned by Department of Transportation for the State of Florida, Parcel The South 1/2 of Section 29, Township 49 South, Range 27 East, Collier 00328560002 County, Florida, less and except the Northeast 1/4 of the Southwest 1/4 of the 260.00 acres Southwest 1/4 (Parcel 00329880008), the East 1/2 of the Southeast 1/4 of the Southeast 1/4 of the Southwest 1/4 (parcel 00330840008), and the West 1/2 of the Southwest 1/4 of the Southwest 1/4 of the Southeast 1/4 (Parcel 000329240004), Section 29, Township 49 South, Range 27 East, Collier County, Florida. Parcel 4 The East 1/2 of the Southeast 1/4 of the Southeast 1/4 of the Southeast 1/4 of 00338240008 the Southeast 1/4 of Section 31, Township 49 South, Range 27 East, Collier 4.24 acres County, Florida. Parcel 5 The West 1/2 of the Southwest l!4 of the Southwest 1/4 of the Northeast I/4 00328640003 and the East 1/2 of the Southeast 1/4 of the Southeast 1/4 of the Northwest 1/4, 10.00 acres Section 29, Township 49 South, Range 27 East, Collier County, Florida, Parcel 6 The Southeast 1/4 of the Southeast 1/4 of the Northeast 1/4 of Section 29. 00331320006 Township 49 South, Range 27 East, Collier County, Florida. 10.00 acres Parcel 7 The East 1/2 of the Southwest 1/4 of the Southwest 1/4 of the Northeast 1/4 of 00330480002 Section 29, To Amship 49 South, Range 27 East, Collier County, Florida. 5.00 acres Parcel 8 The East 1/2 of the Northeast 1/4 of the Southwest 1/4 of the Southwest 1/4 of 00329760005 Section 29, Township 49 South, Range 27 East; Collier County, Florida. 5.00 acres EXHIBIT #1 Agenda Item No. 128 October 14, 2608 Page 26 o'122 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL ACTION FRANCIS D. HUSSEY, JR. and MARY P. HUSSEY, husband and wife; and WINCHESTER LAKES CORPORATION, a Florida corporation, Plaintiffs, V. COLLIER COUNTY, a political subdivision of the State of Florida; THE HONORABLE CHARLIE CRIST, Governor of the State of Florida; and the FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS, Defendants. COPY Case No.: 08- 6933 -CA COLLIER COUNTY'S MOTION TO DISMISS BERT HARRIS ACT COMPLAINT COMES NOW, COLLIER COUNTY, by and through its undersigned counsel, pursuant to Rules 1.140 and 1.130 of the Florida Rules of Civil Procedure, and moves this Court to dismiss the complaint in the above referenced case. As grounds therefore, COLLIER COUNTY states the following: I. The HUSSEYS Have Failed to Attach Necessary Exhibits as Required Under Rule 1.130 of the Florida Rules of Civil Procedure: 1. In paragraph 28 of the complaint, the HUSSEYS claim to have first served a Bert Harris Act Notice on COLLIER COUNTY on July 21, 2004, however, no such notice was attached to the complaint and this notice is an operative fact necessary to sustain the Plaintiffs' cause of action. 2. In paragraph 16 of the complaint, the HUSSEYS claim they entered into a contract with Florida Rock in the year 2000. No such contract was attached to the 1 o o r— m I o C7 C cn COLLIER COUNTY'S MOTION TO DISMISS BERT HARRIS ACT COMPLAINT COMES NOW, COLLIER COUNTY, by and through its undersigned counsel, pursuant to Rules 1.140 and 1.130 of the Florida Rules of Civil Procedure, and moves this Court to dismiss the complaint in the above referenced case. As grounds therefore, COLLIER COUNTY states the following: I. The HUSSEYS Have Failed to Attach Necessary Exhibits as Required Under Rule 1.130 of the Florida Rules of Civil Procedure: 1. In paragraph 28 of the complaint, the HUSSEYS claim to have first served a Bert Harris Act Notice on COLLIER COUNTY on July 21, 2004, however, no such notice was attached to the complaint and this notice is an operative fact necessary to sustain the Plaintiffs' cause of action. 2. In paragraph 16 of the complaint, the HUSSEYS claim they entered into a contract with Florida Rock in the year 2000. No such contract was attached to the 1 Agenda Item No. 12E3 October 14, 2008 Page 27 of 32 complaint and the terms of this contract are operative facts necessary to sustain the Plaintiffs' cause of action. 3. In paragraph 16 of the complaint, the HUSSEYS claim they entered into a lease option agreement on November 13, 2002 with WINCHESTER LAKES. This agreement and its terms are operative facts necessary to sustain the Plaintiffs' cause of action, yet no such agreement was attached to the Complaint. 4. The Plaintiffs' Bert Harris claim is based upon Ordinance 2002- 32 that was adopted in July 2002 and first affected their property in July 2003. In paragraph 26 of the complaint, the HUSSEYS claim they filed a conditional use application for Rock Mining on April 30, 2003. No such application was attached to the complaint and the existence of this application and its terms are operative facts necessary to sustain the Plaintiffs' cause of action. 5. In paragraphs 26, 30, and 36 of the complaint, the HUSSEYS claim they filed a petition for a final designation on April 22, 2005. No such petition was attached to the complaint and this petition is an operative fact necessary to sustain the Plaintiffs' cause of action. 6. In paragraph 29 of the complaint, the HUSSEYS allege COLLIER COUNTY served notice on January 18, 2005, that it was of the opinion that the Florida Department of Community Affairs and the Office of the Governor of the State of Florida were required to be active participants in a Florida Statutes § 70.001 process. No document evidencing such notice was attached to the complaint and this notice is an operative fact necessary to sustain the Plaintiffs' cause of action. 2 Agenda Item No. 12B October 14, 2008 Page 28 of 32 7. In paragraph 31 of the complaint, the HUSSEYS claim they filed a petition for an amendment to the GMP. No such petition was attached to the complaint and this petition and its terms notice are operative facts necessary to sustain the Plaintiffs' cause of action. 8. In paragraph 32 of the complaint, the HUSSEYS claim they filed a petition for a final designation on April 22, 2005. No such petition was attached to the complaint and this petition and its terms notice are operative facts necessary to sustain the Plaintiffs' cause of action. II. The HUSSEYS Claim is Barred by the Statute of Limitations: 9. The HUSSEYS served a Bert Harris Act Notice on COLLIER COUNTY on July 24, 2008, 10. The July 24, 2008 notice is untimely. The Bert Harris Act provides that "a cause of action may not be commenced under [the Act] if the claim is presented more than 1 year after a law or regulation is first applied by the governmental entity to the property at issue." Florida Statutes § 70.001(11). [Emphasis added]. 11. COLLIER COUNTY Ordinance 2002 -32 was first applied to the HUSSEY property on July 22, 2003. 12. Because the HUSSEYS base their claim in paragraph 27 of their complaint on an ordinance that became effective on July 22, 2003, notice was required to be served on or before July 22, 2004. 13. The HUSSEYS' July 2008 Notice, served approximately 5 years after the Ordinance became effective, is untimely. 3 Agenda Itern No. 123 October 14. 20Q8 Page 29 of 32 IIl. Pursuant to Rule 1.140(b)(1) and (6), the HUSSEYS' Bert Harris Claim is Premature; They Lack Standing; They Have Failed to State a Cause of Action; Therefore, The Court Lacks Subject Matter Jurisdiction: 14. The HUSSEYS cannot commence a Bert Harris Act action against COLLIER COUNTY until 90 days after the filing of the notice of the claim; thus, the HUSSEYS have failed to comply with the prerequisites to suit under Florida Statutes § 70.001(4)(a). 15, The HUSSEYS filed their notice of claim on COLLIER COUNTY on July 24, 2008. 16. The HUSSEYS did not file and serve their final or "corrected" appraisal report until September 22, 2008; therefore, the HUSSEYS have no standing to file their cause of action against COLLIER COUNTY until ninety (90) days after receipt, or until December 22, 2008. 17. Further, the HUSSEYS filed and served their action against COLLIER COUNTY on September 11, 2008, less than 90 days after the notice and without the required final and completed appraisal report. IV. The HUSSEYS Have Alleged Insufficient Facts for a Claim of a Vested Right: 18. The allegations in paragraph 16 are insufficient to meet the prerequisites for a finding under Fla. Stat. § 70.001(6) (a), which requires the circuit court to determine whether there was an existing use of the real property or an existing vested right to a specific use of the real property. The claim of the "potential" for rock mining is not a claim of a "vested right ". 19. Since the Plaintiffs have not attached either agreement as exhibits to the complaint; they have failed to set forth sufficient facts that demonstrate that the Florida Rock agreement was entered into before COLLIER COUNTY began the very public rd Agenda Item No. 112B October 14, 2008 Page 30 of 32 process of adopting Growth Management Plan Amendments affecting their property, that were finalized on May 9, 2000, as alleged in paragraph 18 of the complaint. 20. Purchasers are deemed to purchase property with constructive knowledge of the applicable land use regulations. A subjective expectation that the land could be developed is no more than an expectancy and does not translate into a vested right to develop the subject property. 21. For purpose of determining whether land use regulations constitute inverse condemnation, the HUSSEYS' subjective expectation that their land can be developed is no more than expectancy and does not translate into vested right to develop the property. Namon v Florida Department of Environmental Regulation, 558 So. 2d 504 (Fla. 3`d DCA 1990). - V. The HUSSEYS Have Failed to Allege Sufficient Facts to Show a Pre - Existing Use: 22. The allegation in paragraph 16 of the complaint that the HUSSEYS replaced the Florida Rock agreement with a "Lease Option Agreement" in November 13, 2002, which occurred after COLLIER COUNTY adopted the ordinance at issue, is not an allegation of either a vested right or an existing use. VI. The HUSSEYS. Appraisal Valuation Dates are Incorrect and Insufficient: 23. The use of the denial of a petition date of July 25, 2007 in paragraphs 31 - 34 of the complaint is of no legal consequence, since the effective date of valuation is July 2003. 24. The test for assessing the economic impact of a regulatory action is perhaps the most settled aspect of the Penn Central analysis. In conducting this analysis, the court must compare "the value that has been taken from the property with the value that 5 Agenda Item ND. 12B 07to '-er 14, ; r�8 Page 31 of 32 remains in the property.'" Walcek v. United States 49 Fed Cl 248 258 (2001), affd 303 F.3d 1349 (Fed.Cir.2002) (quoting Keystone, 480 U.S. at 497, 107 S.Ct. 1232) Respectfully submitted, BY: A QUELINE WILLIAMS HUBBARD Florida Bar No. 468126 Litigation Section Chief Office of the County Attorney 3301 East Tamiami Trail, 8h Floor Naples, Florida 34112 (239) 252 -8400 — Telephone (239) 774 -0225 — Facsimile COI, SE �j O IfLLIER COUNTY 1 % an d wilt . KLATZKOW Tamiami Bar No. 644625 ounty Attorney Offic ounty Attorney 3301 East Trail, 8h Floor Naples, Florida 34112 (239) 252 -8400 — Telephone (23 9) 774 -0225 — Facsimile CO- COUNSEL FOR COLLIER COUNTY and THEODORE L. TRIPP, JR. Florida Bar No. 221856 Hahn Loeser & Parks LLP 2532 East First Street Fort Myers, FL 33901 (23 9) 337 -6700 — Telephone (239) 337 -6701 — Facsimile CO- COUNSEL FOR COLLIER COUNTY N Agenda Item No. 12B October 14, 2008 Page 32 of 32 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of Collier County's Motion to Dismiss has been furnished via regular U.S. Mail to John G. Vega, Esq., 201 8th Street South, Suite 207, Naples, FL 34102 -6141; Ronald L. Weaver, Esq. and Barbara L. Wilhite, Esq., Stearns, Weaver et al., Suntrust Financial Centre, Suite 2200, 401 East Jackson Street, Tampa, FL 33602; Margaret L. Cooper, Esq., Jones, Foster, Johnson & Stubbs, P.A., 505 South Flagler Drive, Suite 1100, West Palm Beach, FL 33401 -3475; and Theodore L. Tripp, Esq., Hahn & Loeser, 2532 East First Street, Fort Myers, FL 33902 -2040 on this 2nd day of October, 2008. BY; �� J 4�LL�z y uelineVWilliams HubbAd squire 08- 6933CA123 7