Agenda 09/09-10/2008 Item #16K12
-
-
~
SEP I) 2 ?O[l!-'
~~;;:-! 0 f:3.., cr
~ "'-'."'=""";~~::--.
Recommendation for the Board of County Commissioners to Authorize the Filing of a Declimltory
Relief Action with the Circuit Court of the Twentieth Judicial Circuit relating to the matters involved
in the Bert Harris Act Claim served on the County by the owners of the Hussey Property.
EXECUTIVE SUMMARY
OBJECTIVE:For the Board of County Commissioners to Authorize the Filing of a Declaratory Relief
Action with the Circuit Court of the Twentieth Judicial Circuit in response to the Bert Harris Act Claim
served on the County on July 24, 2008 regarding the Hussey Property [copy attached as Exhibit
“A” ;]. The claim appears untimely and unwarranted. The Office of the County Attorney
advises that the matter should be presented to the Court for a decision.
CONSIDERATIONS:
On July 24, 2008, Dr. and Mrs. Francis and Mary Hussey filed a Bert Harris Act claim allegedly arising out
of the County’s adoption of the Rural Fringe Growth Management Plan Amendments and
implementing regulations adopted in 1999 and 2002. Included with the claim are two appraisal reports,
both by Gillott Appraisal Services, Inc. The first, an appraisal report which utilizes a valuation date of June
19,2002, is dated July 3,2008. The second, which utilizes a valuation date of July 25,2007, is dated July
30,2007. Both appraisal reports purport to establish valuations of the 922 acre vacant tract of property
located in Golden Gate Estates, Collier County, Florida, purportedly owned by Dr. and Mrs. Hussey. The
Husseys claim a compensable diminution in value ranging from $67,300,000.00 to $91,500,000.00, plus
prejudgment interest from June 22, 2002, the date of adoption of Collier County Ordinance No. 2002.32.
[copies of appraisals attached as Composite Exhibit “B” ;]. While these claims are disputed
on both procedural and substantive grounds, the Bert Harris Act at Section 70.001 (4)(c), Fla. Stat.,
provides for the County to make a written settlement offer of one of the following statutory alternatives
within 180 days after receipt of the claim: 1. An adjustment of land development or permit standards or
other provisions controlling the development or use of land. 2. Increases or modifications in the density,
intensity, or use of areas of development. 3. The transfer of developmental rights. 4. Land swaps or
exchanges. 5. Mitigation, including payments in lieu of onsite mitigation. 6. Location on the least sensitive
portion of the property. 7. Conditioning the amount of development or use permitted. 8. A requirement that
issues be addressed on a more comprehensive basis than a single proposed use or development. 9.
Issuance of the development order, a variance, special exception, or other extraordinary relief. 10.
Purchase of the real property, or an interest therein, by an appropriate governmental entity. 11. No
changes to the action of the governmental entity. The 180 day period may be extended by agreement of
the parties. At this time, outside counsel, in conjunction with the Office of the County Attorney, requires
direction from the Board to take all appropriate steps to protect the interests of the County in light of the
purported Bert Harris Act claims and the potentially applicable statutory settlement provisions in Section
70.001 (4}(c), Fla. Stat., as well as other potentially applicable provisions in the Bert Harris Act.
FISCAL IMPACT:The purported claims allegedly exceed $90 million. At this time, how~ver, the
claims are disputed and the ultimate potential fiscal impact to the County of the claims is unknown. The
County has retained outside counsel to assist and has authorized the payment of the principal attorney
assigned to the case, Ted Tripp, Esq., a fee of $363.00 per hour. The associate assigned to assist Mr.
Tripp is being compensated at $200 per hour. The costs of defending against the claims are currently
being paid through Community Development and Environmental Services from Fund 111.
GROWTH MANAGEMENT IMPACT:The growth management impact associated with this
Executive Summary is unknown at this time.
LEGAL CONSIDERATIONS: (;p~\ I
RECOMMENDA TION:For the Board of County Commissioners to Authorize the Filirig~ Jt:g?c-~,f~~'1. ~
Declaratory Relief Action with the Circuit Court of the Twentieth Judicial Circuit relating to the matters - -'_'T~---
involved in the Bert Harris Act Claim served on the County regarding the Hussey Property.
Prepared By:
Department
County Attorney
Date
8/28/200812:03:56 PM
Approved By:
Department
Approval
Date
County Approved
Manager's Office
8/29/2008 2:52 PM
A IT ACHMENTS:
Name:
I) ~xhib a to ex~
&~jrrLhJJs$eY,RoJ
QeJ<:hib_b_to_~xec
sum.hu$$gy,j).df
Cl hussev notice of claim.odf
Description:
Type:
Exhibit A to Executive Summary
Exhibit
Exhibit B to Executive Summary
Exhibit
Hussey's Notice of Claim Served on Collier County
Backup Material
tLp ~ 12
AGENDA I
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND OIt'o~ ~
COLLIER COUNTY FLORIDA CIVIL ACll ON SEe () s 2DiflJ
I Pg~f--z-9
~~.I
BOARD OF COUNTY COMMISSIONERS
OF COLLIER COUNTY, a Political
Subdivision of the State of Florida,
Plaintiff,
v.
CASE NO.
FRANCIS D. HUSSEY, JR., and MARY P.
HUSSEY; and WINCHESTER LAKES
CORPORATION, a Florida corporation.
Defendants.
/
DRAFT
COMPLAINT
Plaintiff, BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY,
FLORIDA ("COLLIER COUNTY"), sues Defendants, FRANCIS D. HUSSEY, JR., MARY P.
HUSSEY, and WINCHESTER LAKES CORPORATION, and alleges:
THE PARTIES
1. COLLIER COUNTY is a duly incorporated county in the State of Florida, with
the right to sue and be sued pursuant to Florida Statutes 9 125.15.
2. FRANCIS D. HUSSEY, JR., and MARY P. HUSSEY, (together, the
"HUSSEYS"), are Florida residents who claim to own approximately 912 acres ofland located
within Collier County.
3. The WINCHESTER LAKES CORPORATION is a for-profit Florida corporation
which claims to hold an option to certain mineral rights on the land owned by the HUSSEYS.
II
CLE - 1082045.1
JURISDICTION
,I Pg
SEP
t..f
n )wr:
of:.z...c:;
I
,
,
~.~..",.....-".~~-
~_._-"'_._--
4. This Court has jurisdiction over this matter because this complaint seeks
declaratory relief regarding a dispute which involves claims in excess of $15,000 exclusive of
interest, costs, and attorneys' fees.
FACTS
5. Florida law empowers COLLIER COUNTY to "prepare and enforce
comprehensive plans for the development of the county," and to "establish and administer
programs of. . . conservation." Florida Statutes S 125.01.
6. Florida law requires incorporated COLLIER COUNTY, and all counties, to plan
for their future by adopting, and appropriately amending, a comprehensive plan to guide future
growth and development. Florida Statutes SS 163.3167, 163.3191.
7. As authorized by Florida law, COLLIER COUNTY adopted Ordinance 99-82
[the "Moratorium"] which substantially precluded a number of uses on the properties claimed to
be owned by the HUSSEYS, and imposed significant restrictions on the development of that
property. The Moratorium became effective on march 6, 2001.
8. As required by Florida law, in June 2002 COLLIER COUNTY adopted
Ordinance No. 2002-32 (the "Ordinance"), which amended COLLIER COUNTY'S Growth
Management Plan.
9. The Ordinance became effective on July 22, 2003, and applied to the property
owned by the HUSSEYS, and the rights claimed by WINCHESTER LAKES CORPORATION.
10. The Bert J. Harris, Jr. Private Property Rights Protection Act ("The Bert Harris
Act"), Florida Statutes S 70.001, allows property owners to recover damages when the damages
CLE .1082045,1
AGENDA ITEM
Nl
6~, u . ,fIR
. Pg )of-L9
result from a new governmental law, rule, regulation or ordinance that "inordinately Durdens'~me~--
property, under certain statutorily defined circumstances, if the procedural requirements of the
statute are met.
11. On July 25, 2008, COLLIER COUNTY received a Notice of Claim and Request
for Settlement Proceedings and/or Request for Written Ripeness Determination (the "Notice")
served on behalf of the HUSSEYS and WINCHESTER LAKES (together, "CLAIMANTS").
12. CLAIMANTS assert that COLLIER COUNTY (along with co-defendants
Governor Charlie Crist and the Florida Department of Community Affairs) is liable to
CLAIMANTS for a $67,300,000 to $91,500,000 diminution in the value of their property, under
the provisions of the Bert Harris Act.
13. COLLIER COUNTY is required, by the Bert Harris Act, to "make a written
settlement offer" in response to any valid claim for compensation presented by a property owner
such as the Defendants.
14. CLAIMANTS claim a compensable diminution in the value of their property
which, they assert, was caused by COLLIER COUNTY'S passage of the Ordinance, and its
application to the HUSSEY property.
COUNT I
DECLARATORY RELIEF AS TO THE HUSSEY'S CLAIMS
15. Florida Statutes S 86.011, empowers this Court to render declaratory judgment
determining the existence or nonexistence of rights, and the legal or factual issue upon which
such dispute rights may depend.
16. COLLIER COUNTY is in doubt as to its rights, duties and obligations under the
Bert Harris Act, and the claim presented by the Defendants. COLLIER COUNTY seeks this
CLE. 1082045.1
M
. SEP 2 r; 2nD"
Court's determination of the validity and sufficiency of any notice provided bhh~"1'l_.f .1-:::-_2'
=-..--
under ~70.00 I, Florida Statutes. Section 86.021, Florida Statutes, authorizes this Court to enter a
declaration of the rights, status or other equitable or legal relations between the Plaintiff and the
Defendants.
17. Before expending significant taxpayer funds in responding to CLAIMANTS'
Notice of Claim and Request for Settlement, extending a statutory settlement offer pursuant to
~70.001(4)(c), Florida Statutes, for defending any litigation brought by the Defendants,
COLLIER COUNTY requires at determination of the validity, sufficiency, and existence ofa
valid claim by the Defendants under the Bert Harris Act.
18. Florida law imposes three statutory requirements as a condition precedent to the
maintenance of a valid Bert Harris Act claim. Any property owner seeking relief under that
statute must:
A. "Present the claim in writing to the head of the governmental entity," and
"submit, along with the claim, a bona fide, valid appraisal that supports the claim and
demonstrates the loss in fair market value to the real property" not less than 90 days before filing
an action in Circuit Court. ~ 70.001 (4)(a), Florida Statutes.
B. A property owner may not commence a claim for compensation under the
Bert Harris Act "if the claim is presented more than one year after a law or regulation is first
applied by the governmental entity to the property at issue." g70.001(11), Florida Statutes.
19. In any event, litigation seeking compensation under the Bert Harris Act must be
filed within four years of the imposition of the regulation giving rise to the claim. g95.11(3)(f),
Florida Statutes.
CLE . 1082045.1
. SEP 0 ') 2[1(:(1
ll'g.3_C:>-t-?.9
~ - ~~~;.:;:-~~~
COLLIER COUNTY'S POSITION
20. The HUSSEYS claim to have ftrst served a Bert Harris Act Notice on COLLIER
COUNTY on July 21, 2004. (See "Claim for Compensation or Other Lawful Relief', attached as
Ex. A).
21. The July 2004 Notice is insufficient because:
(a) The HUSSEYS, as property owners, did not submit the claim; and
(b) The valuation submitted with the claim was not a valid, bona ftde
appraisal as required by ~70.001(4)(1), Florida Statutes.
22. The HUSSEYS served a Bert Harris Act Notice on July 24, 2008. (See Notice of
Claim and Request for Settlement Proceedings and/or Request for Written Ripeness
Determination," attached as Ex. B).
23. 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 ftrst applied by the governmental entity to the property at issue." Florida
Statutes ~ 70.001(11).
24. Ordinance 2002-32 was ftrst applied to the HUSSEY property on July 22,2003.
25. Because the HUSSEYS base their claim on an ordinance that became effective on
July 22, 2003, notice was required to be served on or before July 22, 2004.
26. Any claim by the property owner based on the application of Ordinance 99-82 to
the property must measure the claimed diminution in value based upon uses available for the
property prior to July 22, 2003. As of that date, the property was subject to the terms and
conditions of the Moratorium, Ordinance 99-82, and any use of the property proscribed by that
ordinance would be considered in determining an "inordinate burden" on the property since
CLE . 1082045.1
rights proscribed by that ordinance were not an "existing use" of the property as that term is
NtGEND
,)Er' !) .... 2f!nq
'L Py_ ?5.:>{. 7.'1
~,".>.,--~,.
..~.~-::::~:-
defined by ~70.001(3)(b), Florida Statutes.
27. The HUSSEY'S July 2008 Notice-served approximately 5 years after the
Ordinance became effective-is untimely.
28. The HUSSEYS cannot commence a Bert Harris Act action against COLLIER
COUNTY because the HUSSEYS failed to comply with Florida Statute ~ 70.001(11).
29. The July 2004 "notice" is invalid and insufficient, and the July 2008 notice is
untimely.
30. The HUSSEYS have no Bert Harris Act claims based on Ordinance 2002-32.
THE HUSSEYS' POSITION
31. The HUS SEYS contend that they are entitled to now pursue a claim in Circuit
Court seeking damages under ~70.001 in an amount which they claim exceeds $50,000,000.00
for which the taxpayers should pay them.
32. The HUSSEYS also contend that they are entitled to pursue a claim for
diminution in value, based on the application of Ordinance 2002-32 to their property. However,
the HUSSEYS assert that they had a "vested right" to pursue mining activities on the property at
the time of the adoption of Ordinance 2002-32, when such use was not a permitted use under
Ordinance 99-82 and, therefore, the HUSSEYS were not deprived of any right to an "existing
use" for mining by the adoption of the 2002 Ordinance.
WHEREFORE, and by reason of the foregoing, the Plaintiff, COLLIER COUNTY, prays
this Honorable Court will:
1. Take jurisdiction of this cause;
2. Determine whether the Defendants' Notice of Claim is legally sufficient under the
CLE . 1082045.1
~
PlI SEP 1 ~oo~
---.......~
,.~=..~.~'".";:,~~--
applicable provisions of the Bert Harris Act;
3. Determine whether the Defendants have timely served a claim to satisfY the
requirements of the Bert Harris Act;
4. Determine whether any claim for compensation under 970.001, Florida Statutes,
is barred by the provisions of Chapter 70, Florida Statutes, and 995.11, Florida Statutes.
5. Determine the extent to which the adoption of Ordinance 2002-32 by COLLIER
COUNTY can be determined to have "inordinately burdened" the HUSSEY property, in light of
the prior application of Ordinance 99-82 to that property.
6. Grant such other and further relief as the Court deems just and equitable.
COUNT II
DECLARATORY RELIEF AS TO WINCHESTER LAKES' CLAIMS
33. COLLIER COUNTY incorporates by reference the contents of paragraphs I
through 32 as if fully restated herein.
34. WINCHESTER LAKES joined the HUSSEYS III serving the July 24, 2008
Notice.
35. Because the Ordinance on which WINCHESTER LAKES bases its Bert Harris
Act claims became effective on July 22,2003, WINCHESTER LAKES had until July 22,2004
to serve timely notice.
36. WINCHESTER LAKES asserts absolutely no grounds for tolling the one-year
time limit on filing Bert Harris Act claim.
37. WINCHESTER LAKES cannot assert any grounds for tolling the one-year time
limit on filing a Bert Harris Act claim.
38. WINCHESTER LAKES'S July 24, 2008 Notice is untimely based on the Bert
Harris Act's one-year period for serving notice of claim. Florida Statutes 9 70.001(11).
CLE - 1082045.1
N~GEN~A ITEM
l ~ (Ks- 2boY
Pf} 10 uf-- 7 ~
---"';:"-.-.~. .-. ~~-:,-;:::,::-',:-;;1
39. WINCHESTER LAKES cannot commence a Bert Harris Act action against --
COLLIER COUNTY because WINCHSTER LAKES failed to comply with Florida Statute 9
70.001(11).
WHEREFORE, and by reason of the foregoing, the Plaintiff, COLLIER COUNTY, prays
this Honorable Court will:
I. Take jurisdiction of this cause;
2. Determine whether the Defendants' Notice of Claim is legally sufficient lUlder the
applicable provisions of the Bert Harris Act;
3. Determine whether the Defendants have timely served a claim to satisfy the
requirements of the Bert Harris Act;
4. Determine whether any claim for compensation under 970.001, Florida Statutes,
is barred by the provisions of Chapter 70, Florida Statutes, and 995.11, Florida Statutes.
5. Determine the extent to which the adoption of Ordinance 2002-32 by COLLIER
COUNTY can be determined to have "inordinately burdened" the HUSSEY property, in light of
the prior application of Ordinance 99-82 to that property.
6. Grant such other and further relief as the Court deems just and equitable.
Respectfully Submitted,
Theodore L. Tripp, Jr.
Florida Bar #221856
Hahn Loeser & Parks LLP
2532 East First Street
Fort Myers, FL 33901-2431
Telephone: (239)337-6700
Facsimile: (239)337-6701
CLE. 1082045.1
and
Jacqueline W. Hubbard
Florida Bar #
Collier County Attorney's Office
3301 Tamiami Trail East
Naples, FL 34112
Telephone: (239)252-8842
Facsimile: (239)774-0225
Attorneys for Plaintiff, Board of County Commissioners for Collier County, Florida
CLE - 1082045.1
~lY
NAGENDA ITEM
0._
SEP {) S 200R
~..!'g-1Lj) -F?Cj
......--'-~-~."...
~\;
,; ,~
:-,~
li:
It'
'~t
~i{
1/
~
AUG'28-2008 10:30
P.04/11
ij pg~i~!{~~J .
AN APPRAISAL REPORT
THE HUSSEY PROPERTY
A 922-ACRE VACANT TRACT
GOLDEN GATE ESTATES, COLL.IER COUNTY, FLORIDA
DATE OF VALUATION
JUNE 19, 2002
EXIIIBIT .,
EXHIBIT
1-:6
AUG-28-2008 10:30
P.GS/li
Giliott Appraisal &rvices, Inc.
Real Property . Special Purpose Properties . Counseling . Utlgation Valuation
No.
DORElTA R. GILLOlT. MA~ 8RA
State-Certified General Appraiser
RZ 1B72 .
20GB
JOHN A. GILL .]~ JL iI-t
State.Certified General AppialSeFc,-" C - '"""c C
RZ 212
July 3, 2008
Ms. Margaret L. Cooper
Attorney at Law
JoneS Foster Johnston & Stubbs, PA
505 S. Flagler Drive, Suite 1100 .
West Palm Beach, Florida 33401
Re: The Hussey Properly
A 922-Acre Tract
. Golden Gate Estates
Collier County, Florida
F:
~l
i
!r'
\'
ji,
3136 Wind moor Drive North' Palm Harbor, Florida 34685-1741 . (727) 787-2213 ' Fax (727) 7B7.3B99
2095 Buffalo Creek Road . Lake lure, North Carolina 28746 ' (82B) 625-4370 ' Fax (828) 625.5291
AUG-2B-200B 10:30
I AGENDA ITEM
~ No. _, "..."~-.'_'....,.C__~._'_a,'~".'...'~
I
'I '"!
, ;Jh .j f I'
. . PlI J:L~~_~~~ [ \ &. ~L ( Y
Market value IS defined as the most probable price which a property should bring in a
competitive and open market under all conditions requisite to a fair sale, the buyer and seller
each acting prudently and knowledgeably, and assuming the price Is not affected by undue
stimulus. Implicit in this definition is the. consummation of a sale as of a specified date and the
passing of title from seller to buyer under conditions whereby:
P.06/11
Buyer and seller are typically motivated;
Both parties are well informed orwell advised. and acting in what they consider their own
best interests; .
A reasonable time Is allowed for exposure In the open market;
Payment is made in terms of cash In U.S. dollars or in terms of financial arrangements
comparable thereto; and
The price represents the normal consideration for the property sold unaffected by special
or creative financing or sales concessions granted by anyone associated with the sale.
Our report Consists of:
This letter, identifying the property appraised, summarizing th.e nature and extent of our
Investigation, and presenting the conclusion reached;
An executive summary;
A narrative report, containing an Introduction section. a description of the area and
neighborhood, a description of the property apprelsed, a description of the property type
appraised, a presentation of the valuation method(s) used. and the conclusion of values
and;
Exhibits Including:
Photographs
Certificate of Appralsers
Quallflcetions of Appraisers
Assumptions and Umiting Conditions
Related Documents
The following factors were considered in developing our opinion of value:
Location, size, zoning and utility of the land
Highest and best use of the land and of the property as vacant
Prevailing trends In the neighborhood, general conditions and the relative desirability of
the property in the marketplace.
The appraisers have no knowledge of the existence of hazardous material on the property,
. however, the appraisers are not qualified to detect the presence of contaminants.. The
presence of potentially hazardous materials may affect the value of the property. The value
estimate is predicated on the assumption that there is no such material on or under the
property that would cause a loss In value.
SEP!l ifilI' \ f..e V-/4
LP.tL IS- 0 f"!A "
Our work. effort was designed to meet the requirements of 't1W-~:of. i8~ ~",d~tall Financial
Institutions, Reform, Recovery, and Enforcement Act (FIRREA) of 1989. ifleappralsal
analyses and opinions were developed and this appraisal report was prepared In conformance
with the requirements of the Code of Professional Ethics and Standards of professional
Practice of the Appraisal Institute, the Uniform Standards of Professional Appraisal Practice of
the Appraisal Foundation, and the State of Florida.
This letter of transmittal precedes the narrative appraisal further describing the property and
containing the reasoning and most pertinent data leading to the final value estimate. The
opinions expressed in this letter can only be completely understood by reading the narrative
report, exhibits, and other data that follow. Your attention is' directed to the Assumptions and
limiting Conditions and Certificate of Appraiser, which are located in the Addenda of this report.
We have not investigated the title to or any liabilities against the property appraised.
We were not given an engineer's estimate of the reserves on the subject property. We have
made the extraordinary assumption that our estimate of 67 -million tons of rock, sand and fill
reserves is more or less correct and that the operation will produce one-million tons of material
per year until the reserves are depleted. Our estimate of market value with reserves in place,
which assumes that a valid mining permit is in force, and the going-concern value, whIch.
assumes an operating mine, are hypothetical values.
Based on the investigation and premise outlined above, our opinion of the market values and
the going-concern value associated with the subject property, as of June 19, 2002, a
retrospective date, Is presented below.
N~GENDA ITEM
P.07/11
AUG-28-2008 10:30
BEFORE VALUE - MARKET VALUE OF LAND WITH RESERVES
$58,500,000
BEFORE VALUE - GOING-CONCERN VALUE
(Does Not Include Value of Unmlned Land)
$76,500,000
AFTER VALUE. MARKET VALUE OF AGRICULTURAL LAND
$9,200,000
We appreciate your business. If you have any questions, please contact us.
Sincerely,
"
"
J hn A. Gillott, MAl, SRA
t. Cert. Gen. REA 212
(Dj' p;;7:C _~..e-~
Dorette Gillott, MAl, SRA
St Cart. Gen. REA 1872
AUG-28-2008 10:30
P . 08/11
I (p ~l ((
NAGENDA ITEM -I
r " O~f~~ ~~ J
AN APPRAISAL REPORT
THE HUSSEY PROPERTY
A 922-ACRE VACANT TRACT
GOLDEN GATE ESTATES, COLLIER COUNTY, FLORIDA
DATE OF VALUATION
JULY 25, 2007
,
('
.~
.,~.
"~ '
.t;;
,~;
;.;'
"
EXIIlBrr#3
1
AUG-2B-2008 10:30
P. 09/11
A IT
Gillott Appraisal ~ervices, Inc. NOSEP II:; ?OO8-
Real Property , Special Purpose Properties . Counseling . Utigation Valuatio~ Pg (1- '" + "Z>7
- ~~~ ~I
DORETTA R. GILLOTT, MAl. SRA
Stale-Certified General Appraiser
RZ lB72
JOHN A. GILLOTT, MAl, SRA
Slale-Certified General Appraiser
RZ212
July 30, 2007
Ms. Margaret L. Cooper
Attorney at Law
Jones Foster Johnston & Stubbs, PA.
505 South Flagler Drive, Suite 1100
West Palm Beach, Florida 33401
Re: The Hussey Property
A 922-Acre Tract
Golden Gate Estates
Collier County, Florida
Dear Ms. Cooper:
In accordance with your request and authorization, we have made an appraisal on a 922-acre
proposed mining tract, known as the Hussey Property. It is located east of C. R. 951 on the
north side of Interstate-75In the North Belle Meade special use area subdistriCt near the Golden
Gate Estates area of rural west central Collier County.
The date of this self-contained report and the date ofthe value opinion is July 25, 2007. the date
that the Collier CountY Commission denied the Comprehensive Plan Amendment The property
was inspected on several occasions in the spring and summer of 2007. Fieldwork and our
analysis were completed in 2007 and the value represents year 2007 dollars. We estimated
the reserves on the subject property at 67 -million tons using drilling report information prepared
by MACTEC Engineering and Consulting of Georgia, Inc., dated March 4, 2003, and the
assumption that the mining footprint Is 553 acreS and the depth of the excavation averages 60
feet.
,'~
The purpose of this appralsalls to provide an opinion of the market value of the property under
two scenarios. The first, a before value, is an estimate of the market value of the subject
property as vacant agrioultural.land with no mining permit in place. The second, the after value,
. is an estimate of the market value ofthe reserves in place and of the going-concern value as
an operating excavation with a mining permit in place. The fee simple Interest and. the
applicable surface, sub-surfac:e, and mineral rights in the property described herein have been
considered in our value estimates. We used all applicable approaches to provide an opinion
ofvlilues for this property type. Liens and encumbrances have been disregarded and the
property has been ana~ as free and clear. The user of the report is Ms. Margaret L.
Cooper, Attorney at Law, West Palm Beach. Florida. Our opinion of values will be used for a
Bert Harris filing on the sL!bject property.
3136 Windmoor Drive Norlh . Palm Harbor, Florida 34685-1741 . (727) 787-2213 . Fax (727) 787.3B99
2095 Buffalo Creek Road . Lake Lure, Norlh Carolina 28746 . (B2B) 625-4370 . Fax (828) 625-5291
AUG-28-2008 to:31
P .10/11
. SEF ',,"r,
Market value is defined as the most probable price which a property !>lll1.uld bring in' \1:-
competitive and open market under all conditions requisite to a fair sale, the'alrr- and.seIIe:r...! 11 of.-
each acting prudently and knowledgeably, and assuming the price is not affected by undue . ~
stimulus. Implicit In this definition is the consummation of a sale as of a specified date and the
passing of title from seller to buyer under conditions whereby:
Buyer and seller are typically motivated;
Both parties are well informed or well advised, and acting in what they consider their own
best interests;
A reasonable time is allowed for exposure in the open market;
Payment is made in terms of cashin U.S. dollars or in terms of financial arrangements
comparable thereto; and
The price represents the normal consideration for the property sold unaffected by special
or creative financing or sales concessions granted by anyone associated with the sale.
Our report consists of:
This letter, identifying the property appraised, summarizing the nature and extent of our
investigation, and presenting the conclusion reached;
An executive summary;
A narretive report, containing an introduction section, a description of the area and
neighborhood, a description of the property appraised, a description ofthe property type
appraised, a presentation of the valuation methodes) used, and the conclusion of values
and;
Exhibits Including:
Photographs
CertiflCllte of Appraisers
Qualifications of Appraisers
Assumptions and Umiting Conditions
Related Documents
The following factors were considered In developing our opinion of value:
Location, size, zoning and utility of the land
~:,.
'"
I
Highest and best use of the land and of the property as vacant
Prevailing trends In the neighborhood, general conditions and the relative desirability of
the property in the marketplace.
The appraisers have no knowledge of the existence of hazardous material on the property,
however, the appraisers are not qualified to detect the presence of contaminants. The
presence of potentially hazardous materials may affect the value of the property. The value
estimate is predicated on the assumption that there is no such material on or under the
property that would cause a loss in valuB.
AUG-2B-200B 10:31
N~~:ND~ ITEM_
P.11/t1
. SF'
:i'!J-1~~of-UJ I lle. ~/r
"-. .:;;~.. ,"""""-~,,,_..,,,-~,-=
Our work effort was designed to meet the requirements of Title XI of the Federal Financial
Institutions, Reform, Recovery, and Enforcement Act (FIRREA) of 1989. The appraisal
analyses and opinions were developed and this appraisal report was prepared in conformance
with the requirements of the Code of Professional Ethics and Standards of Professional
Practice ofthe Appraisal Institute, the Uniform Standards of Professional Appraisal Practice of
the Appraisal Foundation, and the State of Florida.
This letter of transmittal precedes the narrative appraisal further describing the property and
containing the reasoning and most pertinent data leading to the final value estimate. The
opinions expressed in this letter can only be completely understood by reading the narrative
report, exhibits, and other data that follow. Your attention is directed to the Assumptions and
Limiting Conditions and Certificate of Appraiser, which are located in the Addenda of this report.
We have not investigated the title to or any liabilities against the property appraised.
We were not given an engineer's estimate of the reserves on the subject property. We have
made the extraordinary assumption that our estimate of 67-million tons of rock, sand and fill
reserves Is more or less correct and that the operation will produce one-million tons of material
per year until the reserves are depleted. Our estimate of market value with reserves in place,
which assumes that a valid mining permit is In force, and the going-concem value, which
assumes an operating mine, are hypothetical values.
Based on the investigation and premise outlined above, our opinion of the market values and
the going-concem value associated with the subject property, as of July 25, 2007, is presented
below.
BEFORE VALUE - MARKET VALUE OF AGRICUL rURAL LAND
$21,000,000
AFTER VALue - MARKET VALUE OF ENTITLED RESERVES
$92,000,000
AFTER VALUE - GOING-CONCERN VALUE'
(Does Not Include Value of 369 Acres of Unmlned Land)
$112,500,000
We appreciate your business. If you have any questions, please contact us.
Sincerely,
J hn A. Gillott, MAl, SRA .
1. Cert Gen. REA 212
{DLn~_~#~d.
Doretta Gillott, MAl, SRA
. S1. Cert Gen. REA 1872
\ .
-'
@co
i;)EP !f!II"
> W"~7-o o+'~
~~~,=...--..-....--"'--.,..
FRANCIS D. HUSSEY, JR. and MARY P.
HUSSEY, his wife; and WINCHESTER LAKES
CORPORATION, a Florida corporation,
In Re:
Notice of Claim Under
Bert J. Harris, Jr. Private
Property Rights Protecti~ ACh
Flonda Statute 9 70.00 I? 0 0
<_ C-n
c~ :z:; :::!l
.-- ::::;.10
N -rn
~ >0
-n :::{.."
:J: 0 .
::0........
z::L
~rn
cO
Claimants,
VS.
COLLIER COUNTY, a political subdivision of
the State of Florida; THE HONORABLE
CHARLIE CRIST; and the FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS,
Respondents.
/
NOTICE OF CLAIM AND REOUEST FOR SETTLEMENT PROCEEDINGS
AND/OR
REOUEST FOR WRITTEN RIPENESS DETERMINA nON
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 ofa claim pursuant to F.S. 9 70.001, and state:
I, 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
"I" hereto.
Hussey v. CoLlier C OlJnty
NOlice Of Claim Under FS. j 70.001
SEP ')', 'J[I'!';'
_ v j ,.,: ;
'i PlI 02 t >;>-f ?,..~
~~~..;.;:;::~;:'-,= -
2. WINCHESTER LAKES CORPORATION holds an option to certain mineral
rights in the property described on Exhibit .. 1 ".
3. The property described in Exhibit "I" shaH be referred to as the "Subject
I
Property... The Subject Property all lies within an area of Collier County whic~ 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 198 [, the Hussey Family had acquired all of Section 32 and the majority of the south
half of Section 29.
7. At the time of acquisition, the Subject Property was designated Agricultural on
the z.oning 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 limestone 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 limestone
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
AGEN
No
(?J
Hussey v. Co/lier County
Notice olC/aim Under FS f 7000/
~E'-'
v I-' iDrp;
'l..~!I_~d--.oi?PJ
--"-~':7~_ _Y
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.
II. In 1989, Collier County adopted its First Growth Management Plan ("GMP")
pursuant Florida Statutes g /63.3161 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 low 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 CORPORA nON. Under this Lease Option Agreement,
WINCHESTER LAKES CORPORA nON has rights to operate the rock mine and the
Husseys have rights to royalties.
3
Hussey v, CoWe,. CounTy
/oiorice ofC/aim Under F S. f 70.00/
SEt: (1" ')or'\l
0/' '-,~, { ".)
. pg~'3,.tf~~
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 "Agricultural/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 ("TOR's"). TOR's,
however, are of relatively linle 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 owners who
4
NA
o.
Hussey v. Collier County
NOliee ofC/aim Under F Sf lOrlO!
! SEP I);~ lllii)
~tifJlJ
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
\
EM
Hussey v. Collier County
Notice of Claim Under F S. f 70. DO!
. SEP I) ;;; 'JQnq
. at [,.
!.!~~,. [zt.~~ }
Governor and the Florida Department of Community Affairs notice of the County's assertion
of their proportionate responsibility.
26. 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 ~ 70.00 I.
3 L The actions of the County - or alternatively, the County's actions III
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
9 70.001.
32. Claimants are entitled to compensation for the actual loss of the fair market
value of the Subject Property.
6
NAGENDA ITE
o. ______.~.~.__
\u~
Hussey v. Col!ier County
Notice of Claim Under FS f 70.001
Q~." ,....
U ,'~.' <'11'1"./
I ",J fr.':."
': !"ilc-=={"c.f '1--"\
~~~-~. ::':':_:'~~~=",-~
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 ofresidual 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 fmalizing 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 $91,500,000 plus the loss of residual use value.
WHEREFORE, Claimants request the following relief:
(a) That the Respondents meet with Claimants within one hundred eighty
(180) days from the date hereof to discuss resolution and to make a settlement offer as
required under Florida Statute ~ 70.001(4)(c), or
(b) If a settlement is not reached, that the County issue a written ripeness
decision pursuant to Florida Statute 9 70.001(5)(a) advising how the Subject Property may be
used, and
(c) That the Respondents pay Claimants for diminution in value, plus
interest in their proportionate amounts.
7
f(eKJo
HIIS$f!)' el ol v Callie, COUIlty
Noliee oj Claim Under F S f 70 OO!
N~~~NDA ITEM
--
. SEP,,.
~,
Respectfully submitted, this 21 day of JlL III ,2008.
/
JONES, FOSTER, JOHNSTON & STIJBBS, PA
Co-CoulIselfor Claimmzls
505 South Flagler Drive, Suite 1100
P.O. Box 3475
West Palm Beach FL 33402-3475
561-659-3000
56\-650-0422 (fax)
JOHN G. VEGA, PA
COllnselfor Cia/maills
201 8th Street, South, Suite 207
Naples, FL 34102-6141
239-659-3251
239-659-3417 (fax)
/
~//---)
By ~~~
Margaret 1. ooper, Esq.
Florida Bar No: 217948
mcoooerrali ones-foster. com
8
HlISsey v. Collier County
Notice of Claim Under F.5. S iO.OOI
ILp~I7J
SERVICE LIST
A.GE..NDA ITEM --,/
No.
SEF .. .
'Pll ~g- of z91 ,
.,..~----_._- -, I
Jeffrey A. Klatzkow, Esq.
Collier County Attorney
3301 E. Tamiarni 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. Tarniami 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 ofCoffimunity Affairs
Attn: Thomas G. Pelham, AICP, Secretary
2555 Shumard Oak Blvd.
Tallahassee, FL 32399-2100
P.\DOCS\2S00B\OOOOIIPLDl13H043100C
notice bert hams dalm
9
Parcel
Parcell
00342040003
313.94 acres
Parcel 2
00341960003
313.94 acres
Parcel 3
00328560002
260.00 acres
Parcel 4
00338240008
4.24 acres
ParcelS
00328640003
10.00 acres
Parcel 6
00331320006
10.00 acres
Parcel 7
00330480002
5.00 acres
Parcel 8
00329760005
5.00 acres
.~ A;r
.---..
--
i Sfl-..;",
,
~~:l,of~Q(
~~)
Description
The West 1/2 of Section 32, Township 49 South, Range 27 East, Collier
County, Florida, less and except the following: a) property previously
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.
The East 1/2 of Section 32, Township 49 South, Range 27 East, Collier
County, Florida, less and except the following; a) property previously
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.
The South 1/2 of Section 29, Township 49 South, Range 27 East, Collier
County, Florida, less and except the Northeast 1/4 of the Southwest 1/4 of the
Southwest 1/4 (Parcel 00329880008), the East l/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.
The East 1/2 of the Southeast 1/4 of the Southeast l/4 of the Southeast 114 of
the Southeast 114 of Section 31, Township 49 South, Range 27 East, Collier
County, Florida.
The West 1/2 of the Southwest l/4 of the Southwest 114 of the Northeast 114
and the East l/2 of the Southeast l/4 of the Southeast 1/4 ofthe Northwest l/4,
Section 29, Township 49 South, Range 27 East, Collier County, Florida,
The Southeast 1/4 of the Southeast l/4 of the Northeast l/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 114 of the Northeast l/4 of
Section 29, Township 49 South, Range 27 East, Collier County, Florida.
The East l/2 of the Northeast I/4 of the Southwest 1/4 of the Southwest 114 of
Section 29, Township 49 South, Range 27 East, Collier County, Florida.
EXHIBIT #1