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BCC Minutes 01/08/2013 Closed Session (#12A-Blocker) Minutes BCC BLOCKER CLOSED SESSION January 8 , 2013 FINAL DISPOSITION FORM 1.998 This form is required for the use of the Clerk of Court for the purpose of reporting judicial workload data pursuant to Florida Statutes § 25.075, and pursuant to Florida Rules of Civil Procedure 1.100(c)(3) IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY,FLORIDA I. CASE STYLE COLLIER COUNTY, Case No.: 09-1281-CA Plaintiff, v. Judge: Frederick R.Hardt JERRY BLOCKER,et al., Defendants. "rr•ORIGINAL FILED II. MEANS OF FINAL DISPOSITION. (Place an"x" in one box only) MAR 1 8 1013 X Dismissed Before Hearing COWER COUNTY CLERK _Dismissed Pursuant to Settlement—Before Hearing X Dismissed Pursuant to Mediated Settlement—Before Hearing _Other—Before Hearing _ Dismissed After Hearing _Dismissed pursuant to Settlement—After Hearing Dismissed Pursuant to Mediated Settlement—After Hearing +Other After Hearing Disposed by Default Disposed by Judge Disposed by Non-Jury Trial Disposed by Jury Trial Other: Signature of Co-Counsel for Plaintiff Collier County: CfN2eA110,24-e '51143 Colleen M.Greene,Esq. ate Assistant County Attorney Florida Bar No:502650 cc: Gregory N.Woods,Esq.,Co-Counsel for Plaintiff Steven Bracci,Esq.,Counsel for Defendants Jerry Blocker and Kimberlea Blocker Wanda Collins,Trustee,Defendant Kenneth Blocker,Sr.,Movant to Intervene IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY,FLORIDA CIVIL ACTION JERRY B. BLOCKER and KIMBERLEA BLOCKER, Plaintiffs, v. Case No.: 08-9355-CA COLLIER COUNTY, a political Judge: Frederick R. Hardt subdivision of the State of Florida, Defendant. FINAL DISPOSITION FORM (Form 1.998) II. MEANS OF FINAL DISPOSITION(Place an"x"in one box only) ❑ Dismissed Before Hearing ❑ Dismissed After Hearing ❑ Disposed by Default ❑ Disposed by Judge ❑ Disposed by Non jury Trial ❑ Disposed by Jury Trial X Other: Disposed by Court-Approved S ent Date: March 15,2013 Stev . Bracci,Esq. Steven J. Bracci,PA Florida Bar#157562 2590 Northbrooke Plaza Drive, Suite 208 Naples, Florida 34119 Ph: (239)596-2635 Fax: (239)431-6045 Email: steve @braccilaw.com Secondary email: service @braccilaw.com Attorney for Jerry Blocker and Kimberlea Blocker CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 15th day of March,2013,a true and correct copy of the above and foregoing has been furnished by Email or U.S.mail (as indicated below)upon: Gregory M. Woods,Esq. Woods, Weidenmiller&Michetti,P.L. 5150 N. Tamiami Trail, Suite 603 Naples, Florida 34103 Email:gwoodsalawfirnmaples.com Jeffrey Klatzkow, Esq. Steven Williams, Esq. Jacqueline Hubbard,Esq. Collier County Attorney's Office Harmon Turner Building 3301 Tamiami Trail E, Floor 8 Naples,FL 34112 Email: JeffKlatzkowacolliergov.net i 7—\\ 1 (‘- -- Steven J. Bracci,Esq. Steven J. Bracci,PA Florida Bar#157562 2590 Northbrooke Plaza Drive, Suite 208 Naples, Florida 34119 Ph: (239)596-2635 Fax: (239)431-6045 Email: steve(a,braccilaw.com Secondary email: service @braccilaw.com Attorney for Jerry Blocker and Kimberlea Blocker • t January 8, 2013 TRANSCRIPT OF THE MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida CLOSED SESSION Item #12A - Blocker LET IT BE REMEMBERED, that the Collier County Commissioners, in and for the County of Collier, having conducted business herein, met on this date at 12:00 p.m. in CLOSED SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: Chairwoman: Georgia Hiller Tom Henning Fred Coyle Donna Fiala Tim Nance ALSO PRESENT: Jeffrey Klatzkow, County Attorney Leo E. Ochs, Jr., County Manager Cherie' Nottingham, Court Reporter Page 1 - Item #12A (Blocker) January 8, 2013 Item #12A THE BOARD N CLOSED EXECUTIVE SESSION WILL DISCUSS: STRATEGY SESSION RELATED TO SETTLEMENT NEGOTIATIONS AND LITIGATION EXPENDITURES IN THE PENDING CASES OF: JERRY BLOCKER, ET AL. V. COLLIER COUNTY, CASE NO. 08-9355-CA, AND COLLIER COUNTY V. JERRY BLOCKER, ET AL., CASE NO. 09-1281-CA, IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT, IN AND FOR COLLIER COUNTY, FLORIDA. — CLOSED SESSION MR. KLATZKOW: I guess we'll talk Blocker first and then Hussey. I've had discussions with the Blockers and their counsel. And it's a two-part settlement proposal. The first part of the settlement proposal would take care of the zoning. It would be an amendment to the Growth Management Plan, an amendment to the current zoning regulations so that their existing use would then become lawful. They've also asked to be able to do other uses without having to go through a rezoning process, but we're going back and forth with staff on that. COMMISSIONER FIALA: Other uses without going through zoning? MR. KLATZKOW: Yeah. They're basically -- right now their zoning is industrial. They're using it as a mobile park. They want to be able to eventually get rid of the mobile park and either put in industrial uses or commercial uses. And so what they want to do is they want closure; they want to be able to be just done with the county and know what they can do with their property afterwards. COMMISSIONER FIALA: What did you mean by they wanted to have other uses and not have to go through zoning? Does that -- I mean, does that set a precedent for other companies and other groups Page 2 - Item #12A (Blocker) January 8, 2013 to also want to go -- to put in companies without going through zoning? MR. KLATZKOW: Not a precedence, no. This would be part of the settlement. It would be unique to the Blockers and it would not establish any precedent. Well, the statutes give us the ability under the Burt Harris Act to mold the settlement. COMMISSIONER HENNING: There is no identification what is allowed under the CCI, commercial commerce industrial, within the Immokalee Area Master Plan that allows for C-1 through C-5 uses. MR. KLATZKOW: Yeah. The proposed settlement would specify exactly what the Blockers can do with this property and would give them some assurance as to moving forward with their business plans. I mean, they don't intend to be a trailer park forever. Eventually they are hopeful that the Immokalee area would change so they'll be able to convert what they have and move it to commercial and industrial. And in part the fight's about we don't think they should be residential, we think they should be industrial. So part of the terms of the settlement would be to delineate exactly what they can do with the property. And we're working with staff to hammer out these details. We hand an offer to them, they counter offer to us, but that's part of it. The second part of it is that they are looking for compensation. The compensation they're looking at is hefty. They are looking for approximately $400,000 in attorneys fees, they are looking for $120,000 in expert costs, and they're claiming basically lost profits of $2 million. We don't believe they have any claim for lost profits, but they're making that claim anyway. And that's what they're seeking. They were adamant in the discussions as to getting all of this. And, you know -- COMMISSIONER FIALA: Have they been renting those trailers out all along? Page 3 - Item #12A (Blocker) January 8, 2013 MR. KLATZKOW: Yes. Their claim is they could have rented them at a higher value. COMMISSIONER FIALA: With the condition they're in? MR. KLATZKOW: Their claim is that they could have rented them at a higher value but for the action that's been going on. And again, we don't think they're entitled to it, but that's what they are asking for. COMMISSIONER COYLE: Well, it certainly seems fair to me. COMMISSIONER FIALA: Was there a little sarcasm there? COMMISSIONER COYLE: A hell of a lot of sarcasm. MR. KLATZKOW: That's where we are. The trial in the case, should there be no settlement, would probably be sometime this summer. Although judges have a tendency to take vacation, which would make it into early fall. You could expect an appeal one way or the other. Appeal would take about a year and a half, so you're looking about two years before you're going to know with certainty what the result is on this case. CHAIRWOMAN HILLER: Commissioner Henning, do you have any position on the damages? COMMISSIONER HENNING: Yeah. You know, I'm really confused about the growth management changes needed. I mean, clearly the Immokalee area master plan allows for transient housing, farmworker housing. COMMISSIONER FIALA: In industrial? COMMISSIONER HENNING: In commercial properties. It's clear that that area is zoned industrial/commercial commerce industrial, CCI. So I'm confused. You know, Leo's staff agreed at the last meeting that it was allowed under the Immokalee Area Master Plan. COMMISSIONER FIALA: Leo? MR. OCHS: Not in the area -- COMMISSIONER HENNING: No, but they don't believe it's Page 4 - Item #12A (Blocker) January 8, 2013 allowed in the urban area of Immokalee because the Land Development Code is contradictory to what it says in the Immokalee Area Master Plan. MR. KLATZKOW: Well, the case has always boiled down to whether or not this was a lawful use. And it's been -- COMMISSIONER COYLE: Whether it was what? MR. KLATZKOW: A lawful use, all right. That the GMP was industrial, as was the underlined zoning. COMMISSIONER HENNING: I mean, I could go get the map. MR. KLATZKOW: Commissioner, I'm just -- CHAIRWOMAN HILLER: We're not debating the case. MR. KLATZKOW: It's always been the county -- CHAIRWOMAN HILLER: We're really discussing the settlement. Because we've agreed that we're at the point where we're settling it. COMMISSIONER HENNING: I need to understand as far as in the settlement we need to change the Growth Management Plan. MR. KLATZKOW: I think it's the Blockers' best interest that this issue be put away for all time so that they don't have to worry five years from now or 10 years from now or 20 years from now somebody else coming to -- CHAIRWOMAN HILLER: And how do we do that? MR. KLATZKOW: By changing the GMP and the zoning. COMMISSIONER HENNING: What would we change in the GMP? MR. KLATZKOW: We would specifically put a provision that they are allowed to have the type of residential use that they have. COMMISSIONER FIALA: In their industrial. MR. KLATZKOW: Yes. COMMISSIONER FIALA: But only that. So the GMP would be changed just for the Blockers, right? MR. KLATZKOW: Just for the Blockers. Page 5 - Item #12A (Blocker) January 8, 2013 Now, to be fair, they are the only ones who are running a trailer park in industrial. So this would not affect anybody else; it could not affect anybody else. COMMISSIONER NANCE: When that property was changed to industrial at the time that took place, they had the existing use on it at that time -- MR. KLATZKOW: Some of it. COMMISSIONER NANCE: -- did they not? MR. KLATZKOW: Some if it. COMMISSIONER COYLE: For 10 units, not for 30. MR. KLATZKOW: Some of it. The problem in this case in my mind has always been they were there first and then came the zoning. But whether you argue the zoning change was 1965 or 1970, clearly no later than 1970, in the county's position it was an unlawful use. But they were grandfathered in. But they only had a handful of units then. They've added on since then all that time. And so they were legal nonconforming for five to seven units. They've got like 35 units there now. And that's been the problem. The other problem I've always had with this case is -- COMMISSIONER NANCE: Well, the argument that I've heard is it never was a legal use in any way of any number of units and that's what the whole fight was over to begin with -- CHAIRWOMAN HILLER: They were trying to -- COMMISSIONER NANCE: -- and that was the intensity of the argument. CHAIRWOMAN HILLER: What they were trying to -- what the county was arguing was it was illegally nonconforming. COMMISSIONER NANCE: Right. CHAIRWOMAN HILLER: And they were saying they were legally nonconforming, and as a consequence they should be grandfathered. And so that is the contention. And then what happened was subsequent to that, the county in Page 6 - Item #12A (Blocker) January 8, 2013 addition slapped on this industrial on top of it and they were using the argument if it's illegally nonconforming and now we've made it industrial then you cannot have any of this and you must be industrial. So essentially what we're doing is taking action to recognize them as legally nonconforming and that -- and it should be viewed in totality, not by individual units but the project as a whole, with ultimately what would happen is once the project as a whole is gone, then they continue to have the right to move to industrial, which they do, because it's been rezoned industrial. MR. KLATZKOW: The other piece to this -- when this was started, this was a dangerous area, okay, in that it was adjacent to a junkyard. The junkyard had abandoned cars strewn all over the place. COMMISSIONER FIALA: Piled on top of one another. MR. KLATZKOW: Piled on top. You could literally take your hand out your window and touch the cars. The mobile park itself was in need of upgrading. And to be fair, okay, all that has changed. When you go there now, all right, and look at it now, it doesn't look any better or any worse than anybody else's trailer park in Immokalee, all right. So the reasons why I think staff started this, all right, to clean it up, that's been accomplished. It's been substantially cleaned up. COMMISSIONER FIALA: What about the chemical trucks that are going by that -- MR. KLATZKOW: It's all gone. COMMISSIONER FIALA: That's all gone too? MR. KLATZKOW: Well, I was there. If there are chemical trucks going by, ma'am, it's just -- COMMISSIONER FIALA: Because those were two of the things I was terribly concerned with and that is why I backed the thing in the first place. And let me tell you my second concern. I hear what you're saying, but are we bowing to favoritism? We don't want to be labeled Page 7 - Item #12A (Blocker) January 8, 2013 with that. CHAIRWOMAN HILLER: No, not at all. MR. KLATZKOW: I will tell you this: It has always been this board's policy to get code compliance. All right, that's always where we've been at. And this board waives code fines all the time. We probably had three or four items on this agenda where you were waiving fines. Because the whole point of code enforcement fines is to force people, you know, to get compliant and then you give the reward by waiving the fines. And here they're essentially -- once we tweak the zoning, okay, and they become legal, all right, we've cleaned it up. We have a $1 .2 million code lien on that, and as part of this that would have to be waived. And then we're done. From the county's standpoint. From Blockers standpoint they believe they were unfairly treated. They believe they were singled out and that the county would not allow them to become conforming. And I don't know if that's true, I don't know if that's not true, but that's what they've consistently said throughout the process. CHAIRWOMAN HILLER: And that is true, because the prior owners were given the opportunity to correct through the SIP process, but they were not. So as to the chemicals, that came after. They were there before the chemical trucks came, so that's a problem in our approval. Because we really should have considered there shouldn't be chemical trucks if there were -- COMMISSIONER NANCE: They were probably there before the junkyard too. CHAIRWOMAN HILLER: They were -- not only were they there before the junkyard, but there is a question about the legality of that junkyard and whether that in fact was an illegal nonconforming use. Page 8 - Item #12A (Blocker) January 8, 2013 So you've got -- you know, when you look at the chicken and the egg, I mean, we're clear that they were there before either of those two. And one of those two is questionable as to legality itself. COMMISSIONER FIALA: Well, you're talking about five to seven units that were there, right? CHAIRWOMAN HILLER: More. MR. KLATZKOW: No, they had a relatively small part back in 1970. CHAIRWOMAN HILLER: These came much later. MR. KLATZKOW: They were put in in 1970. MR. OCHS: Our records show, Commissioner, they had seven residential structures and four mobile homes prior to the rezoning to industrial in 1972. COMMISSIONER FIALA: Okay, thank you. That helps a lot. COMMISSIONER NANCE: What are they now? MR. OCHS: And then after that there were 21 additional mobile homes and 10 structures either of wood or block construction. COMMISSIONER COYLE: What years? MR. OCHS: I don't know in what sequence those came -- MR. KLATZKOW: The building permits are terrible -- MR. OCHS: -- but they came after that -- CHAIRWOMAN HILLER: The policy -- COMMISSIONER FIALA: Could I finish hearing what he has to say? I'm sorry. MR. OCHS: The answer was I don't know when all those additional units were added, Commissioner, but they were after the change in the zoning to industrial in 1972. COMMISSIONER COYLE: And everybody knew that. MR. OCHS: Yes. CHAIRWOMAN HILLER: Except here's the issue -- COMMISSIONER COYLE: It was not a surprise to anybody. CHAIRWOMAN HILLER: Okay, but here's the issue: When Page 9 - Item #12A (Blocker) January 8, 2013 you look at the property, it's in total, not by units. So for example, if you look at an apartment building, you don't look at the individual units, you look at the apartment building. The project is the total project, not the individual units that make up that project, so that's false reasoning. I mean, you don't say oh, well, they had seven and then they added five and therefore it's illegal. No, they had the legal right to have as many units as they could have on that property because that whole property was zoned mobile park. I mean, they had the legal right to be there. So it's not that seven units became -- you know, five were legally nonconforming and seven were illegally nonconforming, no, because -- COMMISSIONER NANCE: It was the use -- CHAIRWOMAN HILLER: -- that whole -- the use was legally conforming and that's where the issue is. And this attempt to bifurcate is false. In fact, if the county didn't give them the permits, given that they had the right to use, the county would be denying them what their legal right was, given that they were legally nonconforming. COMMISSIONER FIALA: Did we give them permits to put those things in when they kept building them after the zoning changed? COMMISSIONER COYLE: Probably. CHAIRWOMAN HILLER: I don't know. MR. KLATZKOW: Permitting history is terrible. CHAIRWOMAN HILLER: We have a problem, because a lot of the files were -- MR. KLATZKOW: I'm sure we issued the permits. And we clearly knew that they were done, you know. But we did nothing for 30 years. That was my problem with this case. The county did nothing for 30 years. Then there was a board direction to clean up Immokalee. We started cleaning up these trailer parks and, you know, this one just didn't get resolved. Page 10 - Item #12A (Blocker) January 8, 2013 COMMISSIONER HENNING: Well, let me ask a question: Can you somehow substantiate their potential or their loss of income? MR. KLATZKOW: Substantiate. They claim they had a contract to rent out the entire park. COMMISSIONER HENNING: Have you seen that contract? MR. KLATZKOW: No. But I'm sure it exists, okay. And they claim it was for a certain rental, which is higher than what they're getting now, for 216 people, all right. And they claim that it's higher revenues than what they're getting now. What I'm saying is that it's not a legal claim. They're not entitled to it. CHAIRWOMAN HILLER: Well, but here's the thing: In a takings claim what you're dealing with is investment back expectations. And so to the extent there's a loss of investment backed expectations, that has to be factored. But I don't know the -- COMMISSIONER HENNING: Well, let me just finish what I was saying. There's a value. There's a value of the zoning and GMP, okay. There's a value to the owner when that's done. You have to hire a land use planner, professionals. You have to hire that. CHAIRWOMAN HILLER: So we would have to pay for that? COMMISSIONER HENNING: So if we're going to do that in the settlement, that should be deducted from any kind of offer. And the second part is we need to find out how many units are rented, okay? Deduct what the true value of the rent was. Deduct that from that and make an offer from there. COMMISSIONER NANCE: I'll tell you how you arrive at that. Excuse me, Commissioner Henning. These people have a lot of units. I would think that the burden that they've lost income should be on them. If they had other units in their system at the time that they were somehow able to get more money for and they can substantiate that, I would think they would Page 11 - Item #12A (Blocker) January 8, 2013 have to do that in order to prove that they've lost money. MR. KLATZKOW: I don't think they'll be able to substantiate it. COMMISSIONER NANCE: I don't think they will either. MR. KLATZKOW: And they're not entitled to it as -- COMMISSIONER NANCE: Do you understand what I'm saying, Commissioner Hiller? CHAIRWOMAN HILLER: No, can you clarify that? COMMISSIONER NANCE: The Blocker family has many, many other units that they rent. CHAIRWOMAN HILLER: You can't look at that. COMMISSIONER NANCE: Well, you can arrive at what the prevailing rate of rentals would be. CHAIRWOMAN HILLER: Oh, the pre-- yes, yes, that's easy. COMMISSIONER NANCE: And if they had -- I can't imagine that they actually received less than what the prevailing rate -- CHAIRWOMAN HILLER: And what you're basically saying is the only part that's compensable is the delta, that if they would have received a higher rate -- in other words, and then the question is what was the vacancy in that park for that period of time. I mean, if they remained fully occupied or, you know, I mean, I don't know. And then how much of that is attributable to the loss of the one contract. It becomes a difficult calculation. COMMISSIONER FIALA: Right, especially when you talk about vacancy rates. And let's face it, a lot of the farmworkers have left town going to other places, the farms have been reduced in their output and so you can't really base a vacancy on the problem that we didn't give them the zoning, because they might not -- and of course before that also there was the downturn in economy. So that all affects their vacancy rate. CHAIRWOMAN HILLER: So basically -- MR. KLATZKOW: And the rezoning of the property under the terms of the settlement will give them substantial benefit. That Page 12 - Item #12A (Blocker) January 8, 2013 property will be worth far more now than it was when he bought it. And he bought it in a distressed situation because the former property owner had code enforcement problems. CHAIRWOMAN HILLER: Right. So basically we have it boiled down to several issues. The first one is to confirm that they're legally nonconforming and that once the totality of the project is no longer treated as a mobile home park that the -- they move up to the industrial, which is what we have it zoned as now, right? MR. KLATZKOW: The -- CHAIRWOMAN HILLER: I'm going to summarize it, then we'll come back. MR. KLATZKOW: The way it would be is we're legalizing what they're doing now and we will let them put in industrial uses whenever they choose, as well as commercial uses whenever they choose. CHAIRWOMAN HILLER: Now, when we say they're legalized now, what's the maximum density for mobile homes on that property? MR. KLATZKOW: Well, that's part of the fight by the county. Because we want to keep it at the current density, they're looking for unlimited density. CHAIRWOMAN HILLER: How much? MR. KLATZKOW: Unlimited. CHAIRWOMAN HILLER: No. There's no such thing. Unlimited? We never give anyone unlimited density. That's absolutely not acceptable. I mean, there has to be some reasonable limit on the density. I don't know what's the typical density for mobile home parks -- COMMISSIONER HENNING: Well, what you have to do, you have to do all your site planning, you have to put in your stormwater, you have to -- your landscaping buffers, there has to be separation between structures. So there is a limit. CHAIRWOMAN HILLER: Right. And so we must have other Page 13 - Item #12A (Blocker) January 8, 2013 mobile home parks. There has to be -- MR. KLATZKOW: Your highest density I believe is 16 units per acre. COMMISSIONER HENNING: Here's what you do. CHAIRWOMAN HILLER: How much? COMMISSIONER HENNING: Whatever is on the ground -- MR. KLATZKOW: Sixteen. CHAIRWOMAN HILLER: Per acre? COMMISSIONER NANCE: -- let it alone. Just let it alone. COMMISSIONER HENNING: Whatever's on the ground is on the ground. No more. Period. I mean, I went there -- CHAIRWOMAN HILLER: But what is -- is 16 -- how many acres is that parcel? MR. KLATZKOW: Two and a half. It's not a big parcel. CHAIRWOMAN HILLER: So 16 times two and a half is what? MR. KLATZKOW: I don't have the number off my head. COMMISSIONER COYLE: Forty, I believe. CHAIRWOMAN HILLER: What? MR. KLATZKOW: I don't have the number off the top of my head. CHAIRWOMAN HILLER: Forty? So, I mean, they should -- the maximum they should be allowed to develop on that property -- MR. KLATZKOW: It's 2.74. CHAIRWOMAN HILLER: -- is what the density per acre is that we allow for mobile home parks. And if that 16 units -- and whatever is there is there. And if we allow 16 units per acre -- COMMISSIONER NANCE: Well, if they're currently exceeding it, Commissioner. CHAIRWOMAN HILLER: Well, we'll allow what's there. Okay, we will give them the latitude of the 35. We're not going to take anything that they've got. But we're not going to allow anymore than what anyone else that's similarly situated would receive. Page 14 - Item #12A (Blocker) January 8, 2013 MR. KLATZKOW: Well, that's 12 units per acre. CHAIRWOMAN HILLER: How much? MR. KLATZKOW: Twelve units per acre. CHAIRWOMAN HILLER: And how many acres is it? MR. KLATZKOW: 2.74. CHAIRWOMAN HILLER: So what's 2.74 times 12? MR. KLATZKOW: Twenty-four and nine, so it's 33. CHAIRWOMAN HILLER: Okay. So quite frankly, it looks like it's break even, that what they've got is what they're entitled to. But we should work it in that manner, we'll allow the 35 and whatever the standard is per acre is the maximum. Because we wouldn't give it to anybody else. We're not going to give density bonuses out, are we? COMMISSIONER FIALA: And how much does it cost to do a COMMISSIONER COYLE: Leo, what can you tell us would be helpful? CHAIRWOMAN HILLER: Yeah, Leo. MR. OCHS: I mean, I'm kind of going back to the reason we're sitting around this table and that is to discuss a settlement proposal on a lawsuit. From my experience, the first thing you do as a board is you try to figure out what your legal position is and how strong it is and what's your probability of prevailing if you go to trial. CHAIRWOMAN HILLER: I think we're going to lose. MR. OCHS: If you believe your probability of losing is high, then you try to make some settlement. If you believe your probability of winning is strong then you have a stronger position. I'm not the attorney, but from what I've seen of the record, you've prevailed so far. Now the question is -- MR. KLATZKOW: I believe the likelihood is the county prevails. I believe that the likelihood is the county gets to foreclose on the park. What I am saying is it has always been the board's policy to only take these code cases so far. And then once you've reached a Page 15 - Item #12A (Blocker) January 8, 2013 point where the place has been cleaned up, okay, you end it. I think they're at a point this point in time where they're essentially cleaned up. All I need to do is get the zoning straightened out. MR. OCHS: I was going to say -- MR. KLATZKOW: I've got to get the zoning straightened out. MR. OCHS: -- this is not a code issue from a life issue any longer. The real issue in the lawsuit is -- MR. KLATZKOW: It's not a life safety issue now. It's a -- MR. OCHS: -- is a land use -- MR. KLATZKOW: It's essentially a land use issue now that I can clean up. CHAIRWOMAN HILLER: And Leo, you are 100 percent correct, and that is a big deal. Because all the cases that flowed through up till now were all based on code enforcement. And that is where the problem lies. Because in code enforcement the way you remedy a situation is where you have the independent ability as a property owner to self correct. When you move away from code enforcement and you become dependent on the board to correct the situation, that changes the character of the dispute and that has not been settled by the court. That's the lawsuit before us today. That is very different. What we prevailed on before has nothing to do with this zoning issue. And I do not believe, based on everything I have heard and everything I have seen, that we will prevail on the zoning. And that's the issue of whether we have legally or illegally nonconforming properties. MR. OCHS: Yeah. I'd have to defer to Jeff on this. MR. KLATZKOW: Every person who has seen this, whether it's a special magistrate or a judge, believes that they are unlawful, it's an unlawful use. COMMISSIONER FIALA: Okay, so here's an idea -- Page 16 - Item #12A (Blocker) January 8, 2013 MR. KLATZKOW: But what I'm saying is this, and I've been saying this very consistently over the years for all cases: Once you get to the point where there's no longer any life safety issues, okay, at that point in time you've satisfied your code enforcement. The only issue here is you've got a technical violation of your zoning code. The Code Enforcement Board gave Blockers a year to come back to rezone to get into compliance. The problem is the Blockers wanted to maintain the current zoning. It's one of the reasons why we continue to have this fight. But if the essence of the day is that the public policy is to clean it up, we've cleaned it up. So I'm okay with the settlement as far as changing the GMP and tweaking the rezoning. The piece that I'm a little more concerned about is when they're asking for $2.6 million on top of that. COMMISSIONER FIALA: Okay, so let me say, now, if we do the GMP amendment, how much does that cost? Just a rough guess. MR. KLATZKOW: It's not going to cost you anything, because it will be by order of the board. And then I'll take it to the court. There's no public process. COMMISSIONER FIALA: Okay, fine. So if we give them -- MR. OCHS: -- it's a settlement of the Burt Harris claim without having to go through the process. COMMISSIONER FIALA: And if we give them that and then we release their code fines and we give them -- what was the other thing that they wanted? There was another thing. CHAIRWOMAN HILLER: Legal fees? COMMISSIONER FIALA: No, no, no, I'm not talking about money. Because I don't think we should be giving them that at all. They wanted zoning and they wanted -- MR. KLATZKOW: That's basically -- MR. OCHS: Density. COMMISSIONER FIALA: Density. But they've already got that. Page 17 - Item #12A (Blocker) January 8, 2013 So I think that by just saying that we'll fix the GMP and they can have the zoning that they want in place and they will now be legal rather than nonconforming. I think that that should be all that we give forward. To ask for $2 million I think is outrageous, and I could never vote for that. CHAIRWOMAN HILLER: I mean, I couldn't support giving them $2 million either. COMMISSIONER COYLE: I couldn't support giving them a penny. I think it's outrageous to even consider that. CHAIRWOMAN HILLER: Well, I do have a concern about the legal fees. Because it goes to the issue of how far this has gone and what happened. And I really do think from everything that I have seen -- and here's what's different with respect to how these cases were won and where we are today. As a consequence of what you brought forward, Commissioner Henning, what we know now is different than what was presented to the courts, you know, on appeal. And it goes to the, you know, that extrinsic fraud on the court where they basically were denied the right to a second hearing in front of the Code Enforcement Board. And had that evidence been brought forward what would the outcome have been at that point? COMMISSIONER FIALA: Were they really truly denied? CHAIRWOMAN HILLER: Yes, really truly. They -- COMMISSIONER FIALA: Jeff? CHAIRWOMAN HILLER: -- went one hearing and then straight to -- MR. KLATZKOW: There was no -- in my opinion there was no strength for it on the court -- CHAIRWOMAN HILLER: But they were denied. They were denied the second appeal. MR. KLATZKOW: Commissioner, with all due respect, I believe it's unlawful use. And it doesn't matter what they say or who Page 18 - Item #12A (Blocker) January 8, 2013 they say it to. The use is the use. And that's what the fight's going to be this summer. COMMISSIONER COYLE: It seems to me that what the argument is is that we changed the zoning on their zoning. MR. KLATZKOW: In 1970. COMMISSIONER COYLE: In 1970 to industrial, okay. And we held them in violation because they continued to operate it as a residential community. And now they're saying what we want you to do is give me the zoning I need to make my residential unit legal -- CHAIRWOMAN HILLER: No. COMMISSIONER COYLE: -- legally nonconforming, and I want to keep the industrial zoning that you've plopped on top of it because that is far more valuable. CHAIRWOMAN HILLER: No. COMMISSIONER COYLE: Yes, that's exactly what it is. CHAIRWOMAN HILLER: No, they're not -- COMMISSIONER COYLE: Now, wait a minute, let me finish. So if we want to be fair, if you're going to consider a settlement, then say fine, we'll downgrade your property, downzone your property to what it was before and you keep your little mobile home park. But we won't let you keep industrial because that establishes a precedent we don't want to continue doing. COMMISSIONER NANCE: That's exactly why community redevelopment agencies are created, to create an up-zoned area like that and encourage people to move those uses, which everybody claims they don't want, out of that area. You got exactly what you wanted to do. CHAIRWOMAN HILLER: Right, that's -- COMMISSIONER NANCE: That's why in fact they acquired the property. They acquired the property because it had an existing use as a mobile home park, which gave them income, and they looked and they said look, this property has been zoned industrial. At some Page 19 - Item #12A (Blocker) January 8, 2013 time in the future we're going to move it out of this use to industrial. That's why they brought the property. Everybody should have been happy that's what happened. CHAIRWOMAN HILLER: Exactly. And you're -- yes, you're in part absolutely correct, Fred, but in part Tim is correct. Because essentially they were legally nonconforming. We alleged -- the county alleged that they were illegally nonconforming. The county tried to force them into industrial use ahead of when they legitimately had to move into an industrial use. And that's really where the problem lies. I mean, ultimately -- COMMISSIONER COYLE: But they want to keep the industrial use. CHAIRWOMAN HILLER: Because that's what the county -- that's a good thing. COMMISSIONER NANCE: Don't you want them to have it? CHAIRWOMAN HILLER: That's what the county -- because that's what the county wants. COMMISSIONER COYLE: I'm not willing to sign a settlement agreement and pay them money when they are making a ton of money on this transaction settlement agreement. That is the dumbest thing I've ever heard in my life. CHAIRWOMAN HILLER: But that's what we're addressing. I think we all agree that compensation for these lost profits is not something anyone here agrees with. COMMISSIONER COYLE: Compensation for anything, end of story. CHAIRWOMAN HILLER: I question the legal fees. The legal fees is something that's a problem. Because again, you cannot sue on a zoning matter through code enforcement. You can't use code enforcement to go after zoning, all right. And that's what we did and that's wrong. MR. KLATZKOW: We do that all the time. Page 20 - Item #12A (Blocker) January 8, 2013 CHAIRWOMAN HILLER: Well, it's wrong. COMMISSIONER FIALA: All the time. I just got another -- CHAIRWOMAN HILLER: We're not -- but you can't, that's not possible. COMMISSIONER FIALA: Georgia, right around the corner here we've got a disgusting trailer park. And it's just a trailer park, not a mobile home park. I mean, it is so disgusting. And code enforcement has all the things out on it. It's unsafe for people to live in. They don't even have running water in some of them. Right next door to where the old Barnett Bank was. Drive through there, you'll see it. Anyway, we're trying to close them down. And so this, as we're talking, is setting a precedent for that. CHAIRWOMAN HILLER: No, no, because -- COMMISSIONER FIALA: It's not decent living. CHAIRWOMAN HILLER: No, no, but here's the thing: There are separate issues. The first thing that you're describing are code enforcement violations. Public health, safety and welfare. And they're -- what we do is we put fines on them until they self correct. And they have the ability to do that on their own without board action. COMMISSIONER FIALA: But they won't do it. I'm just worried about setting a precedent. We should go back to your subject, but -- CHAIRWOMAN HILLER: No, no, but you're making a good point. The second issue is that it's an unsightly yucky property. COMMISSIONER FIALA: Dangerous. CHAIRWOMAN HILLER: And what -- if it's like a blighted property, one thing we cannot do statutorily is take property to eliminate blight. Okay, so those two things are very different. And then the third issue we have is a zoning issue. And that zoning issue is what Fred was describing, and that cannot be addressed Page 21 - Item #12A (Blocker) January 8, 2013 through the code enforcement. Because code enforcement addresses the code. And zoning is -- COMMISSIONER FIALA: Well, we should be getting onto this subject because we're very late now. COMMISSIONER HENNING: I can throw some direction out there, and let's see if it flies. You know, it is what it is and it has been since 2006 when the county wanted to foreclose on it. There are certain people that still want to foreclose on it, okay. That's not going to change. There's always going to be objections. So the direction should be there's a value for the settlement agreement up-zoning and recognizing the units on there. That value should be recognized for that lost income, and direct the County Attorney to look at reasonable attorneys fees and costs and make that offer. COMMISSIONER FIALA: But aren't they trying to keep the zoning but now put residential homes on that zoning? CHAIRWOMAN HILLER: No. COMMISSIONER FIALA: How could there be a loss if they've already got it and they still want to keep it? COMMISSIONER HENNING: You need to go back to the presentation that was on the last agenda. It's allowed under the Immokalee Area Master Plan. It's allowed. COMMISSIONER FIALA: What, the mobile homes on a -- COMMISSIONER HENNING: Transient housing. COMMISSIONER FIALA: Transient housing on industrial property? COMMISSIONER COYLE: No. COMMISSIONER FIALA: No, I didn't think so. COMMISSIONER COYLE: That isn't the definition of transient housing. COMMISSIONER FIALA: But what we're doing is giving them Page 22 - Item #12A (Blocker) January 8, 2013 the right as we talk -- COMMISSIONER HENNING: If you look at the future land use map, it has commercial subdistrict on the industrial properties. All those properties -- COMMISSIONER FIALA: What I'm saying is -- COMMISSIONER HENNING: -- are in commercial uses. COMMISSIONER FIALA: -- as much as I don't agree with it, we're going to give them -- I mean, we might anyway, I don't know how everybody else feels, we're going to give them the privilege of keeping the residential units, even though there's more than they should be allowed per acre, on the industrial property, because they don't want to change them because they want to build industrial sometime. So we're going to give them that privilege. I don't see why we should pay them for that. They've already been continuing to take in income anyway. And I do not see giving them money for what they think they might have had. I just don't see that at all. COMMISSIONER HENNING: And I didn't say that. COMMISSIONER FIALA: Okay. COMMISSIONER NANCE: The county changed the zoning to industrial, right? MR. OCHS: Well, the property was rezoned in 1972 from industrial -- excuse me, commercial light industrial, IC-3, to I, industrial. COMMISSIONER NANCE: And that was a land use effort -- MR. OCHS: So that was the change. COMMISSIONER NANCE: -- we wanted to do. We wanted to make that area industrial. So that should encourage them to get rid of the mobile home park, right? CHAIRWOMAN HILLER: Down the road. COMMISSIONER NANCE: That's the idea. So you create industrial district, you get rid of the mobile home parks. Once they're gone, they're gone and forever after -- Page 23 - Item #12A (Blocker) January 8, 2013 CHAIRWOMAN HILLER: It's industrial. COMMISSIONER NANCE: -- it's industrial. CHAIRWOMAN HILLER: Correct. And that's how it should be stated. COMMISSIONER NANCE: And that's a benefit and that's -- CHAIRWOMAN HILLER: And that's exactly what -- COMMISSIONER NANCE: -- what community redevelopment is. CHAIRWOMAN HILLER: And that's exactly what you would have if you had legally nonconforming properly applied. COMMISSIONER NANCE: Right. CHAIRWOMAN HILLER: And so let me just say this: They have 35 units. The maximum would be 33, so they get two bonus units. So basically you're looking only at a difference of two units based on this density analysis here. I don't know if this is correct, but it's 12 units per acre. So basically we allow them the two extra units. So that's -- so you allow them -- so basically you do what's necessary to confirm that they're legally nonconforming and that it be looked at in total that the 35 units on there are acceptable but no more, and that once they decide to no longer use it as a mobile home park, it then converts to industrial. But because you have to look at it as a whole, if one unit needs to be replaced or two units needs to be replaced because -- COMMISSIONER NANCE: Let them continue to use it for that previous -- CHAIRWOMAN HILLER: They can continue to use it for -- COMMISSIONER NANCE: -- legal nonconforming use. CHAIRWOMAN HILLER: -- that previous legal nonconforming use, but they have to -- and they have up to 35 units maximum they could have on that property. And once they decide to get rid of all the units, they become industrial. And the only reason I say that is because what happens if there's Page 24 - Item #12A (Blocker) January 8, 2013 CHAIRWOMAN HILLER: It's industrial. COMMISSIONER NANCE: -- it's industrial. CHAIRWOMAN HILLER: Correct. And that's how it should be stated. COMMISSIONER NANCE: And that's a benefit and that's -- CHAIRWOMAN HILLER: And that's exactly what -- COMMISSIONER NANCE: -- what community redevelopment is. CHAIRWOMAN HILLER: And that's exactly what you would have if you had legally nonconforming properly applied. COMMISSIONER NANCE: Right. CHAIRWOMAN HILLER: And so let me just say this: They have 35 units. The maximum would be 33, so they get two bonus units. So basically you're looking only at a difference of two units based on this density analysis here. I don't know if this is correct, but it's 12 units per acre. So basically we allow them the two extra units. So that's -- so you allow them -- so basically you do what's necessary to confirm that they're legally nonconforming and that it be looked at in total that the 35 units on there are acceptable but no more, and that once they decide to no longer use it as a mobile home park, it then converts to industrial. But because you have to look at it as a whole, if one unit needs to be replaced or two units needs to be replaced because -- COMMISSIONER NANCE: Let them continue to use it for that previous -- CHAIRWOMAN HILLER: They can continue to use it for -- COMMISSIONER NANCE: -- legal nonconforming use. CHAIRWOMAN HILLER: -- that previous legal nonconforming use, but they have to -- and they have up to 35 units maximum they could have on that property. And once they decide to get rid of all the units, they become industrial. And the only reason I say that is because what happens if there's Page 24 - Item #12A (Blocker) January 8, 2013 a hurricane and two units are blown down? They should have the right to rebuild those two units, again because their maximum is 35 and they have that legal right -- COMMISSIONER NANCE: That's the way everybody functions out there. CHAIRWOMAN HILLER: It is. I mean, it's like an apartment unit. I mean, you don't lose the entire -- you don't lose two apartments. You can replace those two apartments within the complex. It's a complex. COMMISSIONER HENNING: Well, that's a part of the counteroffer is, you know, their density. CHAIRWOMAN HILLER: Well, that should be the offer. COMMISSIONER HENNING: Yeah, the -- CHAIRWOMAN HILLER: Right. COMMISSIONER HENNING: -- the legal use, you know, no compensation for lost income. CHAIRWOMAN HILLER: Lost profits. Yeah, absolutely not. And legal fees. And a reasonable -- according to Jeff what would be reasonable legal fees and costs. COMMISSIONER HENNING: Reasonable legal fees. And he has to go through each and every one of the -- MR. KLATZKOW: Well, by reasonable we can do an accounting, all right. And they've got $400,000 in claimed legal fees and they have $120,000 in expert costs. COMMISSIONER HENNING: Take a look at those. COMMISSIONER NANCE: Have they paid those? MR. KLATZKOW: They say they have. CHAIRWOMAN HILLER: Well, you have to verify that -- MR. KLATZKOW: But we can verify that. CHAIRWOMAN HILLER: Everything has to be verified. MR. KLATZKOW: And so what you're saying is verify that they actually spent the attorneys fees and actually spent the expert Page 25 - Item #12A (Blocker) January 8, 2013 cost. Assuming that's right, that's $520,000. Then you've got the lost profits; that's off the table, I understand. CHAIRWOMAN HILLER: Right. MR. KLATZKOW: Okay. But then to get to your earlier thing, there's a value to this change in zoning. COMMISSIONER HENNING: Right. And that's why the loss of potential income is off the table. MR. KLATZKOW: And that's off the table. CHAIRWOMAN HILLER: Definitely. COMMISSIONER COYLE: Well, let me ask a question. They come out with an outrageous number to settle and we go back to them and say well, send us your bills so that we can verify them. Are we going to specify some floor that we're going to give them? Are we going to telegraph that here we're going to pay you some of this if you give me enough justification for those figures, or would you rather just go back and say we'll deal with the zoning issue but we're not paying you anything? And if that doesn't work, can you work up? That's what negotiation is about. It's not about caving in the first time you see the -- CHAIRWOMAN HILLER: We're not caving in. I mean, we just took -- COMMISSIONER FIALA: Yes, we are. CHAIRWOMAN HILLER: No, we're not. We took two million off the table. I mean, we went from two and a half million -- COMMISSIONER NANCE: We're not going to pay them a dime for any supposed lost profits. CHAIRWOMAN HILLER: No, none. COMMISSIONER NANCE: That's just nonsense. CHAIRWOMAN HILLER: None. None. MR. KLATZKOW: The direction I'm hearing just, okay, is I'm going to have to come back, but I'll ask them to get them to itemize their attorneys fees, to itemize their costs. Page 26 - Item #12A (Blocker) January 8, 2013 Do you have somebody in your shop, Leo, that can go through this and verify that from the county's standpoint? MR. OCHS: Their legal fees? MR. KLATZKOW: Yeah, just because -- these are the bills, this is my check that I paid. CHAIRWOMAN HILLER: But let me make one -- MR. KLATZKOW: I need some sort of audit. CHAIRWOMAN HILLER: The Clerk could do that. Get the Clerk to do it. Just get the Clerk to audit it. Because he's an impartial third party. But let me -- COMMISSIONER COYLE: You're looking at a report two years from now. CHAIRWOMAN HILLER: Let me make a suggestion. We should look -- I mean, you've got legal fees and you have legal fees. I don't know what rates they can charge you. We should, you know, have in our mind, like what do we pay our lawyer? MR. KLATZKOW: What I'll do is this, ma'am -- CHAIRWOMAN HILLER: But whatever we pay our lawyer is what we would pay his lawyer. So if our rate is 130 an hour, that's what we should give his lawyer. I mean, we're not going to pay a different rate. I mean, if he hires some high-powered $500 an hour lawyer, we're not going to pay that. COMMISSIONER NANCE: I agree. COMMISSIONER FIALA: And he stacks the hours. COMMISSIONER NANCE: His lawyer will have to accept that. CHAIRWOMAN HILLER: Yeah, but here's the thing too: This litigation has been going on since 2006. So you're basically looking at six years worth of hours and a lot of stuff. But I think it needs to be very narrowly construed, and it should not be any more than what we pay our lawyers. MR. KLATZKOW: Okay. MR. OCHS: You want us to verify that the billings -- Page 27 - Item #12A (Blocker) January 8, 2013 CHAIRWOMAN HILLER: Get the Clerk to audit -- MR. OCHS: -- are accurate or do you want to assess the -- CHAIRWOMAN HILLER: Get the Clerk -- COMMISSIONER FIALA: I'd like to verify it, because if he says I paid Joe Smolts so much and I pay so-and-so, how do we know they paid just on this particular lawsuit? It could be other lawsuits -- CHAIRWOMAN HILLER: No, he can't do that. You can't -- THE COURT REPORTER: I'm sorry, I have a lot of you at one time talking. CHAIRWOMAN HILLER: They can't submit fraudulent invoices. You know, we can demand it at the table from them. MR. KLATZKOW: I'll ask Crystal that they do an audit. CHAIRWOMAN HILLER: Yes. MR. KLATZKOW: Okay. And assuming they do that, I'll ask Crystal to calculate the attorneys fees at whatever rate we're paying our counsel. CHAIRWOMAN HILLER: Yes. MR. KLATZKOW: And come back with a figure. And then I'll come back to the board. I don't think I'm going to be able to do it in two weeks. CHAIRWOMAN HILLER: That doesn't matter. MR. KLATZKOW: I'm going to have to look at it in February. Okay. MR. OCHS: So the existing uses would be considered nonconforming -- CHAIRWOMAN HILLER: Legally nonconforming. MR. KLATZKOW: No, the existing use is going to be legal. When we're done with this, everything on there is going to be legal. CHAIRWOMAN HILLER: You're going to make it just legal. You're not going to make it legally nonconforming, just legal. MR. OCHS: And maintain the current zoning and the attorneys' fees. Page 28 - Item #12A (Blocker) January 8, 2013 COMMISSIONER NANCE: Well, they were going to -- COMMISSIONER HENNING: They want the zoning that's allowed under the Immokalee Area Master Plan, the C-1 through C-5. CHAIRWOMAN HILLER: So basically -- COMMISSIONER NANCE: That's what they had to begin with. MR. OCHS: Is that different from I? MR. KLATZKOW: In essence what they're going to get is any uses allowed under our code they'll be able to put on that property. That's essentially what they're going to get. CHAIRWOMAN HILLER: Which is C-1 through 5. COMMISSIONER NANCE: What they had to begin with. COMMISSIONER FIALA: I think we've gone a long way just offering them that. I don't see any reason to give any money. MR. KLATZKOW: Okay, Hussey? CHAIRWOMAN HILLER: So are we all in agreement on that? COMMISSIONER HENNING: No, we're not in agreement. MR. KLATZKOW: No, but I got direction. CHAIRWOMAN HILLER: Well, no, I just mean just general consensus on the direction. COMMISSIONER HENNING: Yes. CHAIRWOMAN HILLER: Okay. And then we'll come back in February. MR. KLATZKOW: I'll try to come back in February with this, yes. COMMISSIONER FIALA: So we're not going to discuss it today at the meeting, right? MR. KLATZKOW: No, you're just going to tell me to continue negotiations. COMMISSIONER FIALA: Okay. (At which time, this closed session concluded at 12:40 p.m.) ***** Page 29 - Item #12A (Blocker) January 8, 2013 COMMISSIONER NANCE: Well, they were going to -- COMMISSIONER HENNING: They want the zoning that's allowed under the Immokalee Area Master Plan, the C-1 through C-5. CHAIRWOMAN HILLER: So basically -- COMMISSIONER NANCE: That's what they had to begin with. MR. OCHS: Is that different from I? MR. KLATZKOW: In essence what they're going to get is any uses allowed under our code they'll be able to put on that property. That's essentially what they're going to get. CHAIRWOMAN HILLER: Which is C-1 through 5. COMMISSIONER NANCE: What they had to begin with. COMMISSIONER FIALA: I think we've gone a long way just offering them that. I don't see any reason to give any money. MR. KLATZKOW: Okay, Hussey? CHAIRWOMAN HILLER: So are we all in agreement on that? COMMISSIONER HENNING: No, we're not in agreement. MR. KLATZKOW: No, but I got direction. CHAIRWOMAN HILLER: Well, no, I just mean just general consensus on the direction. COMMISSIONER HENNING: Yes. CHAIRWOMAN HILLER: Okay. And then we'll come back in February. MR. KLATZKOW: I'll try to come back in February with this, yes. COMMISSIONER FIALA: So we're not going to discuss it today at the meeting, right? MR. KLATZKOW: No, you're just going to tell me to continue negotiations. COMMISSIONER FIALA: Okay. (At which time, this closed session concluded at 12:40 p.m.) ***** Page 29 - Item #12A (Blocker) January 8, 2013 CERTIFICATE OF REPORTER State of Florida ) County of Collier ) I, CHERIE' NOTTINGHAM, Notary Public, in and for the State of Florida at Large, certify that I was authorized to and did stenographically report the foregoing proceedings. I further certify that I am not a relative, employee, attorney or counsel of any of the parties, nor am I financially interested in the action. Dated this 12th day of January, 2013. CHERIE' NOTTINGHAM Gregory Court Reporting 2650 Airport Road South Naples, Florida 34112 My Commission No. EE 008093 Expires: July 12, 2014 Page 30 - Item #12A (Blocker) MINUTES Blocker January 8 , 2013 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY,FLORIDA CIVIL ACTION BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY,a political subdivision of the State of Florida, nicpy Plaintiff v. Case No.: 09-1281-CA JERRY BLOCKER,KIMBERLEA BLOCKER;and WANDA M.COLLINS TRUSTEE„OF THE LARRY AND WANDA COLLINS LIVING TRUST DATED DECEMBER 26,1997;and any tenants/persons in possession,and any unknown heirs,successors, assigns,devisees,grantees,creditors,and other COPY•ORIGINAi.FIL80 unknown persons or unknown spouses claiming by,through and under the above-named Defendants, 14AR 13 2013 con sitcorutreteRK PLAINTIFF COLLIER COUNTY'S NOTICE OF VOLUNTARY DISMISSAL OF FORECLOSURE ACTION WITH PREJUDICE COMES NOW, Plaintiff BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY ("COUNTY"), and hereby notices this Honorable Court and all parties of its Voluntary Dismissal of Foreclosure Action With Prejudice and states as follows: 1. On February 8,2013,counsel and representadves for Plaintiff COUNTY and Defbndants JERRY BLOCKER and KIMBERLEA BLOCKER participated in Court Ordered Mediation and reached agreement pending approval by the COUNTY Board of County Commissioners ("Board"). 2. On February 26, 2013, the Board, at its regularly scheduled meeting, approved the Settlement Agreement,attached hereto as Ezh1bit"A". Pap I oft 3. Pursuant to Paragraph 9 of the Settlement Agreement and subject to the continuing jurisdiction of this Court, Plaintiff COUNTY hereby Voluntary Dismisses With Prejudice all parties to this Foreclosure Action. Respecabily submitted, By: N.WOODS,ESQ. • Bar No. 175500 Woods,Woidenmilier&Micheal,P.L. 5 150 N.Tamiami Trail,Suite 603 Naples,FL 34103 Telephone: (239)325-4070 Facsimile: (239)3254080 JEFFREY A.KLATZICOW,ESQ. Florida Bar No.644625 COLLEEN M.GREENE,ESQ. Florida Bar No.502650 Collier County Attorney's Office 3299 B.Tamiami Trail,Suite 800 Naples,FL 34112-5749 Telephone (239)252-8400 Facsimile: (239)774-0225 llier MM CO-COUNSEL FOR PLA NTIFF CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the County's Notice of Voluntary Dismissal With Prejudice was served via email upon Counsel for Defendants Jerry Blocker and Klmberlea Blocker, Steven J. Bracci, Esq., Steven J. Brawl, P.A., Senalbleagzgew • and via U.S. mail,postage prepaid, to Defendant Wanda M. Collins, Trustee, 101 HIghview Ave. Lehigh Acres, FL 33936, and Movent to Intervene Kenneth J. Blocker,Sr.,1303 W.New Market Road,Innnolralee,FL 34142,on this.day of March,2013. BY: 034\` •RY N.WOODS,ESQ. Page 2 of 2 • • IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY,FLORIDA KIMBERLEA BLOCKER, Plaindffi, • v. Case No.: 08-9355-CA COLLIER COUNTY,a political subdivision of the State of Florida, Defendant. BOARD OF COUNTY COMMISSIONERS OF COLLIER.COUNTY,a political subdivision of the State of Florida, Plaintiff v Cie No.: 09.1281-CA JERRY BLOCKER,KIMBERLEA BLOCICER:and WANDA M.COLLINS TRUSTEE„OF TAE LARRY AND WANDA COLLINS LIVING TRUST DATED DECEMBER 26, 1997;and any tenants/persons in possession,and any unlmown heirs,successors, assigns,devisees,grantees,creditors,and other unknown persons or unknown spouses claiming by,through and under the above-named Dew, Defendants. This Agreement is made this 8a day of Feb any,2013. WHEREAS, the Parties are involved is two lawsuits beibre the Twentieth Judicial Circuit, Collier County, Florida, styled: (1)Jerry Blocher and Kbnbarlaa Block& v Collier County, Florida, Case No. 06-9333-CA; and (2) Board of Cowry' Conenissionera, Collier Exhibit°A" 1!a�I of 2 P1al tIWs Notice of Voluntary Dismissal of Foreclosure Action With Prejudice Comity,Florida v.Jerry Blocker, Kimberlea Blocker, and Wanda it Colin* Frru rtee,Case No. 09.1281-CA(collectively,these lawsuits shall be refemcd to as the'L.awauitf) and WHEREAS, pursuant to egreeuio t of the parries and all applicable court orders and procedures,mediation was conducted in the above-styled matter before Civil Mediator,Leonard Reins,Esq.,on Friday,February 8,2013;and. WHEREAS,the parties have agreed to the leans and conditions as set forth in Exhibit A. NOW,THEREFORE,it is mutually agreed that the County Attorney will bring forth and recommend to the Board the Agreement attached as Exhibit A no later than the second Board meeting of March. Should the Board approve this Agreement as attached,this matter shall be deemed concluded on the terms and conditions therein. IN WITNESS WHEREOF,the undersigned hereby execute this Agreement on the date(s) set forth below. d'%"-- iiiii- it BLOCKER` :' •, -.di rr,'Ll .....a .. 3.., _ 1�,r':1 :w Leomrd Rehm,I34q..Civil Mediator Paso 2of2 . . . -------mimmor "-.--, r lam° Y rAs Gu'L04 ';.r-r, TA:,u..lor ,, 1 per- �C,_ ,—t� Si 5 el On I'� f•�,i-ct _ 1 C.' �-I erect;cfi�"f c a-, . / - ► IN THE CIRCUIT COURT OF THE TWENTIFTS JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY,FLORIDA JERRY B.BLOCKER and KIMBERLEA BLOCKER, v. Case No.: 08-9355-CA COLLIER COUNTY,a political subdivision of the State ofFlodda, Defendant. r BOARD OF COUNTY COMMISSIONERS OF COLLIER COUNTY,a political subdivision of the State of Flodda, Plaintiff, v Case No.: 09-1281-CA JERRY BLOCKER,KIMBERLEA BLOCKER;and WANDA M.COLLINS TRUSTEE,OF TIC LARRY AND WANDA COLLINS LIVING TRUST DATED DUMMER 26,1997;and any tenantripersons in possession,and any unknown mss,mss, assigns,devisees,gneateea,creditors,and other unknown persons or unknown spasm claiming by,through and under the abovvnamed Defendants, Defendants. 1 This Settlement t A mrt aad.Mutual Release("Agreement")is made and entered into this 71i day of 2013, between the BOARD OF COUNTY COMMISSIONERS OF COLLIER VNTY, FLORIDA mod to as the "County"and JERRY BLOCKER AND KIMBERLEA BLOCKER reined to as the"Blockci Page l of? f • 3 • WHEREAS, the Parties are involved in two lawsuits before the Twentieth Judicial Circuit, Collier County, Florida, styled: (1)Jerry Blocker and lamberisa Blacker v, Collier Conroy, Florida, Case No. 08-9355-CA; and (2) Board of County Coenrlesdoners, Collier Corny,Florida v.Jerry Blocker,Kbnberlea Blocker,and Wanda M Coll Thatee,Case No. 09-1281-CA(may,these lawsuits shall be referred to as the"Lawsuits");and WHEREAS, the Lawsuits resulted fiom certain code enthaement cases between the County and the Mockers, Cue No. 2006-16, 2006.17 and 2006-18 (the "Code Enforcement Cases");and WI S, the Parties' claims against one another in these Lawsuits arise from the Blochrs' operation of a mobile home park located at 1101, 1121 and 1123 Alachua Street, Immokalce, Florida, which property consists of three separate parcels with three separate tax folio numbers (63864720000, 6386468001, and 638647600020) (hereinafter referred to as the "Property"),and whether or not the operation of this mobile horn park constitutes an illegal and tut-contbrmiag use, under both the Immoicaloe Area Master Plan, the applicable zoning regulations,and the Land Development Code;and WHEREAS, the Parties deny liability to one another for any and all claims and coumterolaims alleged in the Lawsuits and in connection with the Property;and WHEREAS, following a Comb ordered mediation held by the paroles on February 8, 2013,the Parties to this Agreement wish to My settle and resolve all adding and potential figure disputes pataining to the cl aims,counterclaims and allegations made in the Lawsuits or with respect to the Mochas current or potential finme use of the Property. NOW,1IiEREPORB,in consideration of each and all of the mutual covenants,promises and consideradons set ibrth herein,the Panay of which Is hereby acknowledged by the Parties,the Parties do hereby agree as 8rllowa 1. Incorporadon by reference. The Parties agree to adopt and incorporate the foregoing recitals by reference into this Agnawt as though folly rewritten herein. 2. Non-admission of liability.It is understood and agreed that this Agreement is the compromise of disputed claims,and that any payment made hereunder is not to be construed as an admission of liability,huh or responsibility as to any claims or allegations on the part of any party,which liability is and has been expressly denied. 3. Form of Settlement. This Setdeme t consists of two components. The first component is deflidng the mess the Blocks= may lawt11lly engage upon the Property. The second component addresses providing the Blockage a liquidated settlement amount equal to Page 2of7 4- 9' 0 their actual out of pocket costs incurred in colmeatlw with these Lawsuits and the Code Enforadxst Cases. • nadltikassusisst 4. The Immoludee Area Master Plan(Growth Mourned Plan). The Com aesoe Center-Industrial Subdistrict of**Urban—Industrial District of tiro lmmokdee Area Master Plan Element dike Growth Management Plan is hereby mended to add the following text: In addition to the already allowed Trended Housing or Migrant Labor Camps under Policy 1.5.2,the existing 2.74 acre mobile home psddmigrm t transket housing property located at 1101, 1121 and 1123 Alachua Street and father described below is allowed to continue as a legal cornering use, with a mix of housing types. As such, the owner may alter, repIacc relocate,upgrade and add dwelling units. In addition,the 2.74 acre site is eligible for residential redevelopment at a ma,hnu m duty of 12 units per gross acre,but in no event less than 33 units,and the permitted resideatda l uses are those uses permitted by the Commerce Center—Mixed Use Subdistrict of the Urban•Mixed Use District of the Imatolalee Area Master Plan. In calculating such density,the arcs legally described below that was previously wed as an allleyway/dght-of-way(described is O.R.Book 4324,Pages 960 and 961,and O.R.Book 434, Pages 962 and 963)shall be utilized in such calculation as to the remainder pared,irrespective of any figure change in ownecahip. The property is Author described as Lots 6, 7, 8, 9 and 10, Block 48,Newmarket Subdivision, as recorded in Plat Book 1,Pages 104 and 105,Public Records of Collier County,Florida.["Trustee's Deed(O.R.Book 3170,Page 1547)] AND The Easterly mod twenty abet of the Easterly forty feet of the froward Street right-of-way lying adjuvant to Lute 6 through 10 of Block 40 of the Nowmadcet Subdivision,as recorded in P1t Book 1,Pages 104&105,of the Public Records of Collier County, Florida. [Quitclaim Deed (O.R. Book 4324, Pages 960 and 961)) AND The Westerly most twenty abet of the Easterly forty beet of the Breward Street rigid—of—way lying diluent to Lots 6 through 10 of Block 4$of the Newmarket Subdivision,as recorded Plat Book 1,Pages 104&105 of the Public Record' of Collier County, Florida. [Quitclaim Deed(O.R. Book 4324, Pages 962 and 963)] S. Zoning. This rezone shall be known as the Blocker Rezone. The zoning boa of the property described in Section I is luaoby clanged as provided herein and the Papa oil ;?f° appropriate zoning atlas map,as described in Ordinance Number 04-41,as amended,is hereby amended may. A. List of Permitted uses: All uses currendy permitted by the Commerce Center- Industrial Subdistrict of the dial District of the Immmolaalee Area Master Plan ffiemmeat of the Growth Management Plan,as amended above,except that there can be no mixed use udetial develop, B. Development Standards All development and redevelopment shall comply with the then-Gwent Collier County Land Development Code, using the standards of the most similar zoning district, and including without limitation the County's SIP Program for Nonconforming Mobile Home Parks. 6. Site Improvement Plan Approval. The Board hereby approves the site plan of edging mobile home park and/or migrant transient housing uses attached hereto as Exhibit"A", which shall be the site development plan ix all cabling 2.74 acre mobile houmigrant housing use on the property. The owner may replace,alter or upgrade edging saddensial units,and add up to two additional residential units bridging the total permitted number of residential units to a merriment of 33 residential units (or whatever greater density the Lend Development Code allows at the time of application), with an approved building permit under the currant Site Development Plan,and subct to the following: 1. Unless shown on the attached site plan,no landscaping is required. 2. Owner shall maintain a driveway or private road leading to and serving the 2.74 acme tract as shown on Exhibit we which tell be a dust free surthee. 3. Owner shall provide for =site water management as to the a$boted area to prevent flooding and shall direct stammer to the adjacent public roadways. 4. Owner shall maintain the perimeter fencing shown an Exhibit"A". niliklEkbalakiddigaramen 7. Payment. The County and the Blacken have agreed to a liquidated settlement amount equal to the Molars' actual out-of-pocket costs insured in connection with the Law5441s and the Code Enlbrceuaeit Cases. The Block=are in the praxes of confirming their Pap 4of 7 961 invoices,which shall in no event exceed$540,000 in costs and legal fem in connection with the per,and debase,including appeal,of these Lawsuits and the Coda Enforcement Cases. Within 10 business days of approval of this Agreement by all pantos,the Stockers will submit to the Clerk of Courts invoices and proof of payment in support of this claimed expenditure. The Cleric will review these invoices and proof of payment,and shall pay their actual,out.offpookoet costs and legal foes directly incurred in the Lawsuits and the Code Enforcement Cases. The decision of the Cleric shall be final. 8. Edema. a. County. County,on behalf of its Board of Commissioners,and its past,present and cane Commissioners, attorneys, employees, tamer employees, agents, servants, contractors, subcontractors, suppliers, representatives, insurers, successors in interest, and assigns of all of them, releases and brava discharges Jerry Blocker and Kimberley Blocker, their predecessors, successors andfor assigns, affiliates, employees, former employees, agents, attorneys,ofltcas,directors,principals,shareholders,and mmnbe:s from any and all claims of whatever nature or description whether arising from any violation of any statutes, contract, indenudty,warmly,cypress or implied,in contract or tort,alleged in,relating soy or arising from the Lawsuits or the Property. b. Jerry Blocker and Kimberlea Blodrr. leery Blocker and Kisberlea Blocker, on behalf of themselves, their predecessors, successors ardlor assigns, affiliates, employees, former employees,agents,attorneys,aim,drakes,principals,shareholders,members,and all who claim through them, hereby releases and'bower discharges the County, its Board of Conunisolones, and its past,present and Allure Commissioners, attorneys,employees, tinnier employ as, agents, servants, contractors, mom, suppliers, representatives, Warm suceasaors in interest,and assigns of all of them,tam any and all claims of whatever nature or description,whether now known or arising in the fly and whether arising from any violation of any statutes,contact,indemnity,wammty,express or implied,in contract or tort,alleged In, relating to or arising toes the Lawsuits or the Property. 9. D>smbeel of Lltigatlen With Prejudice. The Parties shall stipulate to the dismissal of the Lawsuits dismissing with prejudice all claims and counterclaims in the Lawsuits. The dismissals shall be filed by each party's oatmeal of avoid within duty(30)business days of the execution of this Ate. The Parties farther acknowledge that this Agreement is subject to the coat slag jurisdiction of the Corot Page$of7 ig Q44 • 10. Release of Liao. The Comity will prompty release any and all existing code enforcement liens on the Property,and will cooperate with the Blocks=to remove any and all other liens,judgments or other cbouds on tide arising from the Lawsuits and Code Enibnament Cues. 11. Voluntary Exeartion/Role of Legal Counsel. The Parties acknowledge that this Agreement Is freely and voluntarily executed after they have been apprised of all relevant information concerning the Agreement and that they have had the opportunity to consult with and receive the advice of counsel In entering into this Agreement. In executing this Agreement, the Parties acknowledge that they do not rely on any inducements,promises,or rqprosentations other than those contained herein. In this regard,the Parties acknowledge that this Agreement is the product of mutual negotiation and no doubtigl or ambiguous provision that may exist in this Agreement is to be construed against any of the Parties based upon a claim that one of the Parties dratted the Agreement,or that the language of the Agreement was intended to favor one of the Parties. 12. Governing law. This shall be deemed to have been made and to be per,and shall be GAtnrpr+oted,construed and enibreed,in accordance with the laws of the State of Florida. 13. Multiple Counberparts. This Agreement may be executed by the Parties is identical counterparts,which,taken together,shall oanstftute a complete original. 14. Complete Agreement. The Parties acknowledge that in deciding to execute this Agreement and then in executing this Ageement, they have not relied upon any statement or won that is not specifically set lath herein,that this Agreement contains the entire agreement between the Parties hereto regarding the resolution of their disputes,and that the terms of the Agreement are contractual and not more recitals. 13. Modillations. This Agreement cannot be amended, modified or amplified except by agreement and written document, widish is signed by all Parties hereto. No and statement made by any person shall operate to modify this Agreement in any mama or otherwise affect its temps and provisions. 16. Severabillty. In the event that any term or provision oft Agreement is deemed unenforceable or udawfid for any reason, the remainda of the Agreement shad be deemed enforceable and in effect. Pyo6oil Q410 • II 17. Eafonabflhty. This Ammon amt ft eftbodve apes the date it is approved by the Board of County Commission= of Collin Comity, Radek This Agreement is =hien to by the Cow 18. Non-waiver. The Mum of either party to enforce at any time any of the Pons ofdds Agreement shall not constitute a waiver deny suchprovidons. 19. Authority to mod. The hereto each warrant and represent have the requisite authority to Mar�this Agreement on behalf of the respective party. . they IN WITNESS WHEREOF,the vndaedped hereby execute this Agreement on the date(s) . set ibrth below. A BOARD OF • .• , STONERS • r ,� OF COLA t a i iJIV'I'Y • •RIDA :, .,fr�, S . IIL/ • Ic:.., ' r !I tl ri. Ai EQ.,cmA1R JERRY BLOC 1ERLBA BL,OCiaR °TliemiLbet._„Eget/m.4,- mild, legal finin end sufficiency: eOy J County Attorney • Pap Tos'7 ^/ ��-7iG/l�Ij i • • 1 I p • marir‘M . i 0 I : iilii mi. 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