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BCC Minutes 12/15/2009 Closed Session (#12A-Grider) MINUTES Grider December 15 , 2009 ? r IN THE CIRCUIT COURT OF THE 20TH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY,FLORIDA CRAIG GRIDER and AMBER GRIDER, CASE NO.: 09-3164-CA =- Petitioners Plaintiffs, � . vs. --t COLLIER COUNTY,a political c3 subdivision of the State of Florida, -� Respondent/Defendant, GRANTING PETITION OR WRIT OF CERTIORARI THIS CAUSE came to be heard on Petitioners/Plaimtifl'Motion for a Final Order on the Petition for Writ of Certiorari,and the Court having reviewed the record and heard argument of counsel,it is hereby ORDERED AND ADJUDGED that Petitioners/Plaintiffs' Motion for a Final Order on the Petition for Writ of Certiorari is hereby GRANTED. INTO-WM This is the second case involving a dispute between the Griders and the County over the permitting and constriction of their home. In the first administrative hearing, the County changed long-standing code interpretations, attempting to revoke the Graders' permits and require demolition of their home. The Graders filed a lawsuit and prevailed in the first case,with the Court ruling that their home was properly permitted, that the County was estopped from changing the code interpretation,and that the County was directed to issue a final certificate of occupancy. The instant case involves similar issues. The First Case The Griders' house was permitted and fully constructed,weeks away from issuance of a final Certificate of Occupancy,when a next-door neighbor intervened with staff. The neighbor complained about the rear "preserve" setbacks and urged that staff reinterpret the codes and revoke the permits. After a long procedure,the County planning director changed staff's long- standing interpretation of the LDC "preserve setback" provisions. The Griders appealed to the County Commission, which affirmed the director's reversal of the long-standing interpretation under which permits had been issued. The Griders sued(Case No. 08-7794-CA) . This Court granted summary y judgment for the Graders. In a 38-page Order,the Court made lengthy factual findings holding that staff s long-standing interpretation was correct,the County was estoppel, and a final Certificate of Occupancy should issue. The Instant Case The Griders'house sits on a curved road or cul do sac. The County LDC has a procedure for determining setbacks along curves or cul de sacs, called the "chord" method. This was applied to the Guider home,which was permitted and constructed in conformity therewith. After the neighbor's complaints and the Guiders' first lawsuit, staff changed that interpretation. The new interpretation put the front setback out by a matter of inches. However, staff also granted the Griders a "lot line adjustment" as allowed by the LDC to accommodate the small discrepancy. Thereafter,the neighbors requested a formal "staff interpretation" of the chord setback provisions of the LDC. They then filed an untimely appeal to the County Commission of both the staff interpretation and the lot line adjustment. The Commission reversed staff and, for a second time,ordered the Colder permits to be revoked and their house to be torn down.The new interpretation applied solely to the Cinder property. The County then initiated code enforcement proceedings against the Guiders. The Griders filed a second Complaint/Petition to this Court. 2 2d 475(Fla. 1st DCA 1983);liohyfteargaty.iadm,643 So.2(1 1112(Fla. 1st DCA 1994)). Chi y of Laude l�da a Lakes v.Corn.427 So.2d 239(Fla.4th DCA 1983). Estoppel also applies to a change of interpretation. In Rolinson v.City of Key West.875 So. 2d 659 (Fie. 3d DCA 2004), the Third District Court of Appeal overturned an earlier staff/attorney interpretation that allowed short-term rentals so long as the unit was rented for less than 50%of the The Third District Court of year. Appeal found that the past rental practices in accord with the earlier interpretation were grandfathers against new rules later adopted. Sarasota Ciy Y Nat'L City Bank of Cleveland.Oh. 902 So.2d 233'(Fla 2d DCA 2005). !, m- u: This Court concludes that the County has applied the wrong law, departed from the essential requirements of law, and is unsupported by sabstantiaL competent evidence. The County Commission's decision should be quashed. For the foregoing reasons,the Court hereby quashes the County Commission's decision on the Lot Line Adjustment(LLA 2007 R 12140) and Staff Clarification of the Chord Setback (SC-07-02)and remands with instructions that the adders'home is in conformity with the LDC, all code enforcement proceedings against the Griders should be dropped, and a final Certificate of Occupancy should be issued forthwith. DONE AND ORDERED in Chambers, in Naples, Collier County, this day of ,2011. Hon. A.Pivacek Judge of the Circuit Court Cqpies ors: Margaret L.Cooper,Esq.,Jones,Foster,Jolnaten&Stubbs,P.O.Box 3475,West Pala Beach,FL 33402-3473;and Steven T.Willlaa>a,Esq.,Office of the County Attorney,3301 E.'Bantam'Tr.,8th FL,Naples,FL 34112. PADOCS\23190100002\PLDUA421 O6.DOCX order math*peddon callow) 5 December 15, 2009 TRANSCRIPT OF THE SHADE SESSION MEETING OF THE BOARD OF COUNTY COMMISSIONERS Naples, Florida, December 15, 2009 CLOSED SESSION Item #12A — Craig and Amber Grider LET IT BE REMEMBERED, that the Board of County Commissioners, in and for the County of Collier, and also acting as the Board of Zoning Appeals and as the governing board(s) of such special district as has been created according to law and having conducted business herein, met on this date at 12:28 p.m., in CLOSED SESSION in Building "F" of the Government Complex, East Naples, Florida, with the following members present: CHAIRMAN: Donna Fiala Fred Coyle Jim Coletta Frank Halas Tom Henning ALSO PRESENT: Leo Ochs, County Manager Jeffrey A. Klatzkow, County Attorney Steven Williams, Assistant County Attorney Page 1 — Item #12A (Grider) December 15, 2009 Item #12A THE BOARD IN EXECUTIVE SESSION DISCUSSED: SETTLEMENT NEGOTIATIONS IN THE PENDING LITIGATION CASES OF CRAIG GRIDER AND AMBER GRIDER V. COLLIER COUNTY, CASE NO. 08-7794-CA AND CRAIG GRIDER AND AMBER GRIDER V. COLLIER COUNTY, CASE NO. 09-3164-CA, BOTH WHICH ARE NOW PENDING IN THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA. — CLOSED SESSION MR. KLATZKOW: Call this shade session to talk about the Grider case. Steve, I'll let you start the discussion since you're litigating it. COMMISSIONER HALAS: Speak up a little bit. I'm sorry. MR. KLATZKOW: I'm just calling the session together, sir. I'm deferring to Steve. MR. WILLIAMS: All righty. Again, Steve Williams. Last saw you guys in September. We're back at the Grider situation, and we've asked for a shade session because when we left you in September, this matter had been on the judge's desk for a period of some time regarding our motion to reconsider her previous order of July. As with all things, she must have had ears in the room because shortly after that in October, she did sign a new order, and it came to us in October. We had a 30-day window in which to either abide by that order, which called for us to give a Certificate of Occupancy to the Griders, and that would have effectively ended most of what we had to discuss and everything we had to discuss in terms of the 25-foot preserve setback issue; however, following the board's direction at our September meeting, we carried on with the status quo. I believe that was the directive at the time when we did file a timely Notice of Page 2 — Item #12A (Grider) December 15, 2009 Appeal. We filed that in November. Now we've come to you because we have yet to put significant time, energy, resources, otherwise into completing that appeal, as all we had to do was get the notice in. We are free at this time to continue drafting our briefs, moving forward and prepare for oral argument, if that's the board's direction, or we're perfectly within our bounds to say, let's cut our losses on that particular appeal and file a Notice of Dismissal of that appeal. Why would we do that? We still also have -- untouched is the litigation regarding the lot line adjustments on the other side of the case. The only thing under appeal is the 25-foot setback preserve issue. That is, again, due to board direction. At this time, Ms. Cooper, in the appeal case, Margaret Cooper, counsel for the Griders, has asserted over $75,000 in attorney's costs, and otherwise. That will only get uglier with the appeal proceeding forward. Personal basis, I'm not too convinced there are either statutory or contractual grounds for those attorney's fees. They're -- in all honestly, I can't call them weak, but they're not very strong. If we take up the appeal and the appeals court agrees that we're not strong, we're not good, her chances of getting attorney's fees and costs only increase, I guess, is the most honest way I can put that. So do we want both fights? Do we want one fight? Where would you like to go from here? Because my appeal brief is due in January, wouldn't have time to come to you again before then, so that's why we called for the shade session here today. The lot line adjustment case is just getting started. The very first hearing in that case is not scheduled until January, 2010, and that is on our motion to dismiss it, asserting that the board engaged in all the correct activities, which I've said. So we come here. Do I file a brief'? Do I dismiss the appeal? Do I proceed with the lot line adjustment case only? Page 3 — Item #12A (Grider) December 15, 2009 And if I missed anything, Jeff, let me know. MR. KLATZKOW: No, that's about it. COMMISSIONER HENNING: Do we have insurance that will cover us in case we lose the appeal? MR. WILLIAMS: I don't believe risk has us on this one. MR. KLATZKOW: No, we do not. This is an uncovered case. COMMISSIONER HENNING: So by going to the appeals, most likely -- and if we lose, we're going to pick up the costs? MR. WILLIAMS: It only increases that chance, yes. COMMISSIONER HENNING: Right. And any experts, other experts? MR. WILLIAMS: Correct, yeah. COMMISSIONER HENNING: The -- now, keeping it in the local courts, the other issue with the lot line adjustment, now she is appealing -- are we appealing to the judge? No, she's appealing our decision. MR. WILLIAMS: Yes. COMMISSIONER HENNING: Okay. So -- all right. So financial -- there's no financial risk to keep that lot line -- lot line adjustment going, only your time? MR. WILLIAMS: Correct. COMMISSIONER HENNING: Okay. Well, I mean, that's my concern is about financial costs in this even though I think the judge was wrong. MR. WILLIAMS: I agree with you, I think the judge was wrong. COMMISSIONER HENNING: The -- yeah. And really, if-- like it was said before, if the two neighbors were to get together, then we would probably not be in this fight. MR. WILLIAMS: And if you guys recall from September, direction to me was to get those two parties together and tell them that this is their fight and this is the Hatfields fighting the McCoys. And you all remember the story, the Hatfields and the Joneses didn't fight. Page 4 — Item #12A (Grider) December 15, 2009 It was just the Hatfields and the McCoys. They're not talking to each other. They're not working together. They've got no interest from my perspective of doing anything amicable between the two of them. I tried. I spoke to Ms. Cooper. I spoke to counsel for the other homeowner. I don't know enough of the story other than to know they're not doing it together. So the judge's ruling, what you guys tell us to do, is all that's ever going to fix it. So -- multiple phone calls, multiple conversations with both sides. They won't come together. COMMISSIONER HENNING: Well, I'm okay to keep it local so -- decreasing the risk of the taxpayers. CHAIRMAN FIALA: And Tom would be most familiar with this. COMMISSIONER HENNING: No, I think we all are. CHAIRMAN FIALA: Well, yeah, we all are. MR. WILLIAMS: You guys have been at this for a while. CHAIRMAN FIALA: We all know pretty well. The only thing, that you would be more closer in touch with it. Do you think there's any chance of winning anything? MR. WILLIAMS: Well, it depends on how you frame that question. Short-term arguments and decisions, yes, we can win some of those. Long-term, long-range, I spoke to you last time, about my belief that judges are hesitant to knock down existing buildings, and that is the ultimate answer in this question, is the judge ever going to make the Griders remove a brick from their house? I don't believe so. I just haven't seen that out of judges in the past. It's not human nature. If we'd come into this or if staff had caught this at the foundation level or laying the pad level, I would have a different answer for you. But where we are today, human nature is you don't tear things down that people spent millions of dollars to build. So the long-term answer is, we're not going to win. The short-term answer is, can we at least try to get them to follow Collier County codes and the rules? Yes, we can try. Do I believe they Page 5 — Item #12A (Grider) December 15, 2009 should have come in at some point in time and asked you for a variance? Yes, I do. Their attorney, and he is an attorney, they chose not to, and so far their illegal decisions are working. They haven't had to. The judge has agreed with them. COMMISSIONER HALAS: The end result is he doesn't have to come in at all? If we drop this case, they won't have to come in for a variance? MR. WILLIAMS: Well, not on the preserve issue. If you drop the appeal, they're not going to have to on the preserve issue. We still have the lot line issue. COMMISSIONER COLETTA: Can we force a variance on them? MR. KLATZKOW: No. MR. WILLIAMS: I have all -- well, sat through mediation for the better course of a day and everything else and threatened them that you guys need to be here, you need to come in for the variance, you need to do it. All the lawsuits, your attorney's fees, stop. All you have is the cost for plan permit, and they won't do it. So that was their choice. To their credit, they're working so far. COMMISSIONER COYLE: If-- and this is sort of off track here. But is it true that if the staff had not given them initial approval, we wouldn't be in this mess in the first place? MR. KLATZKOW: Well, I'll answer that. It's my opinion, sir, that had staffs decision been -- before they started construction, you're into the preserve, okay, that would have been upheld. Staffs decision was, you're not a corner lot. You're a regular lot. That would have been upheld. The problem we're facing is staff gave a decision, the owners acted on that decision, built a house, and only when they were just ready to open did we realize that there was a problem. And so, in essence, the horse was out of the barn at that point. COMMISSIONER COYLE: Well, the problem was that the staff Page 6 — Item #12A (Grider) December 15, 2009 made the decision that was incorrect. MR. KLATZKOW: That's correct. COMMISSIONER COYLE: Okay. COMMISSIONER HENNING: And let me -- the way I look at that is, my opinion, they wasn't given enough information to make that determination about the preserves. Submittal of the site plan, or actually the plat, did not show the preserve. So I think where the failure was is trying to correct a mistake. And just at the end of the day, in my opinion, you couldn't correct it without some sort of a variance. Yeah, there's some errors there. That's my opinion in the way I seen it. MR. KLATZKOW: Yeah, I'm not knocking staff. I mean, you know, things happen in the course of business. It`s just, the reality is, once you have this decision by staff and somebody relies on it, you know, it's kind of hard afterwards to say, well, sorry, we were wrong, but now you've got to take off half your house. It's just -- COMMISSIONER COYLE: I understand that. I would feel the same thing way. You know, we really -- when we make a decision to do something, it's done. That's just the way it is. That's why we've got to be very careful about it. COMMISSIONER COLETTA: I guess the question is, what's the easiest course of action to bring this whole thing to an end? MR. KLATZKOW: To bring this thing to an end, we dismiss all cases. That brings it to an end. MR. WILLIAMS: Just give them a CO ends it all. COMMISSIONER HENNING: Yeah. MR. WILLIAMS: Walk away and that ends both pieces of litigation. COMMISSIONER HALAS: Without them having to come before the board to get a variance too, right? MR. KLATZKOW: That's correct. Page 7 — Item #12A (Grider) December 15, 2009 COMMISSIONER COLETTA: Give them a CO. COMMISSIONER COYLE: So let me make sure I understand what you said. On the lot line areas, aren't they really going to have the same argument that they had on the preserve setback? MR. KLATZKOW: Yep. COMMISSIONER COYLE: That, yeah, you approved it, so now you're trying to take it away from me after I've already built the house? You're out of your mind. MR. KLATZKOW: Correct. COMMISSIONER COYLE: So we're going to be facing probably the same logic and probably the same decision by a judge. All that we will accomplish, which is not a bad goal, is maybe in the process move them closer to a settlement of some kind if-- who is the -- well, you know who the attorney is for the -- MR. WILLIAMS: Mr. Brooker. It's Margaret Copper against Clay Brooker. Well, versus us. COMMISSIONER COYLE: Mr. Brooker should understand that a judge is likely to rule in favor of the Griders even on the lot line issue. MR. WILLIAMS: I think Mr. Brooker would. I've spoken with him as recently as Friday. And complete disclosure to all of you. When this first came up, we didn't have time for a board meeting. I reached out to Mr. Brooker, said, the opportunity is there for you to file a brief on behalf of your clients, the opportunity is there for you to assist the county in drawing the appeals and the briefs. He did get back with me. They did want it known that he has offered to assist us with a brief, which -- but the cost of this isn't the issue to us, because whether Mr. Brooker helps me with the brief or not, it's still the same attorney's fees from Ms. Cooper that is our financial downfall at the end. So -- but I want you to know that they did offer that. We have been in touch with Mr. Brooker and we have been in touch with Ms. Page 8 — Item #12A (Grider) December 15, 2009 Copper, and it continues. What I can't get is those two to agree to call today Tuesday, and -- well, and it's not them. It's their clients. I mean, the two resident homeowners are not agreeing on anything. And despite clear direction from this board, that I was very clear with them, that the board wants you guys to work together because, much like a judge, if the board has to reach a decision, someone's going to be very unhappy at the end of the day. But that's just the way it's going to happen. So I tried to be clear. COMMISSIONER COYLE: I agree with the decision to go ahead with the lot line adjustment thing and drop out of the other one. Is that where you were going, Commissioner Henning? COMMISSIONER HENNING: Well, I think it's -- oh, you talking to me? Yeah, yeah. It's -- boy, we really need to be careful what we do as far as our money goes, and it's going to be an embarrassment if we lose on something that somebody told us you're wrong. COMMISSIONER COYLE: Yeah. COMMISSIONER HENNING: So yeah. Yeah, I would like to -- I would personally like to stay on the lot line adjustment and forget the rest. MR. WILLIAMS: I've got that hearing January 10th. Pardon me, January 25th, so -- and for Jeff and I, it's no work to dismiss the appeal. It's a one-page letter to the clerk of the Circuit Court, or pardon me, to the Court of Appeals. COMMISSIONER COYLE: And we're dismissing it because we don't think our chances of winning are good, but our risks of increasing our costs -- MR. KLATZKOW: Your best case result on this point is that the appellate division says, you know what, you didn't exhaust your administrative remedies, you've got to go back to get a variance, which you'll really have to give them to avoid all our liability. That's our best-case scenario. Our worst-case scenario and probable result Page 9 — Item #12A (Grider) December 15, 2009 will be that the Court will affirm the trial court and assess attorney's fees. It will be close to six figures. So that's the range. I mean, I don't think you have much of a benefit here, and you've got a big downside here. COMMISSIONER HENNING: Now, I think -- I'm hearing there's going to be public speakers on this item before we -- CHAIRMAN FIALA: There are; did you say? COMMISSIONER HENNING: Yes. I'm hearing that there's going to be. You know, the Griders, not the -- the Kolflats. Do we take public speakers? MR. KLATZKOW: No, no, not on this. If they want to sign up at the end for public comment, they're entitled to say whatever they want to say. COMMISSIONER HENNING: Even though our agenda says that if you wish to speak on any item on the agenda, you may do so by MR. KLATZKOW: Not on a shade session matter. COMMISSIONER HENNING: On the vote. Prior to the vote, they can't? Okay. Well, at least you know. CHAIRMAN FIALA: Well, I'm glad you clarified that, because I wouldn't have known that. So in a shade session, we don't accept speakers? MR. KLATZKOW: We're not expecting speakers, no. COMMISSIONER HENNING: Wasn't there on the clerk's -- MR. KLATZKOW: Here's the reason, because you can't have a public discussion on this now. I mean, you know, we've had our discussion here, we've laid everything out. The purpose of public comment is so that you can get additional facts and information and then have discussions amongst yourselves. It just destroys the whole idea of a shade session. Once you take the public comment, at that point in time you'd want a discussion amongst yourselves on it. COMMISSIONER COYLE: Yeah, you can't do that. Page 10 — Item #12A (Grider) December 15, 2009 MR. WILLIAMS: That's like the public walking into my office and telling Jeff and I how to try the case. We might as well have them in here. COMMISSIONER COYLE: So for all intents and purposes, we just made the decision. MR. WILLIAMS: You will at one o'clock. COMMISSIONER COYLE: Right. Well, no, but we decided what we're going to do already without the public input. MR. WILLIAMS: You've given counsel direction. COMMISSIONER COYLE: And so all we're going to do really is ratify it when we get in there. MR. KLATZKOW: Right. COMMISSIONER COYLE: Public comment would be troublesome under those comments. (The shade session concluded at 12:56 p.m.) ***** TRANSCRIPT PREPARED ON BEHALF OF GREGORY COURT REPORTING SERVICES, INC., BY TERRI LEWIS. Page 11 — Item #12A (Grider)