Item B** 10:00 A.M. CLOSED SESSION **
BOARD OF COUNTY COMMIS:
AGENDA ITEM SUMMARY
Meeting Date: 12/3/2008 - KW Division: County Attorney
Bulk Item: Yes _ No xx Staff Contact Person: Bob Shillinger x3470
AGENDA ITEM WORDING:
An Attorney -Client closed session of the Board of County Commissioners in the matter of Department
of Community Affairs v. Monroe County, et al, DOAH 08-2035 to be followed by a public hearing on a
compliance agreement and adoption of a County Ordinance on this same matter.
ITEM BACKGROUND:
When the Department of Community Affairs' rejected a portion of the County's proposed amendments
to the comprehensive plan with respect to the working waterfront, a statutorily required administrative
proceeding was automatically triggered. County staff and the Department parties, with the participation
of several intervenors, have been working diligently to resolve their differences in lieu of resolving these
matters through an administrative hearing. That hearing is scheduled to start on December 16, 2008,
prior to the next BOCC meeting.
The parties have crafted a tentative settlement agreement. Florida Statute section 286.011(8) allows the
Board to meet in closed session with the Administration and its attorneys to discuss the proposed
settlement agreement. The subject matter of the closed session shall be confined to settlement
negotiations or strategy sessions related to litigation expenditures.
Florida Statute section 163.3184(16)(c) authorizes the County to enter into a settlement agreement
known as a compliance agreement to resolve this administrative challenge. The statute requires a public
hearing advertised in an appropriate newspaper at least 10 days in advance of that hearing. The
December 3nd date allowed for the ad to be placed and published in time to satisfy the statute. The
public hearing will follow this closed session.
Present at the meeting will be the Commissioners, County Administrator Roman Gastesi, County
Attorney Suzanne Hutton, Chief Assistant County Attorney Bob Shillinger, Assistant County Attorneys
Susan Grimsley and Derek Howard, and a certified court reporter.
PREVIOUS RELEVANT BOCC ACTION:
11/19/08 BOCC approved Special Meeting/Closed Session/Public Hearing for December 3, 2008
beginning at 10:00 a.m, in Key West, FL.
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS:
N/A
TOTAL COST: $200 BUDGETED: Yes X No
COST TO COUNTY: $200 SOURCE OF FUNDS:
REVENUE PRODUCING: Yes _ No xx AMOUNT PER MONTH_ Year _
APPROVED BY: County Atty xx _ OMB/Purchasing _ Risk Management _
DOCUMENTATION: Included Not Required X
DISPOSITION: AGENDA ITEM ##
Revised 2/05
County of Monroe
The Florida Keys
Robert B. Shillinger, County Attorney"
Pedro J. Mercado, Assistant County Attorney **
Cynthia L. Hall, Assistant County Attorney **
Christine Limbert-Barrows, Assistant County Attorney **
Derek V. Howard, Assistant County Attorney**
Steven T. Williams, Assistant County Attorney**
Peter H. Morris, Assistant County Attorney
Patricia Eables, Assistant County Attorney
Chris Ambrosio, Assistant County Attorney
** Board Certified in City, County & Local Govt. Law
May 25, 2017
Kevin Madok, Clerk of the Circuit Court
Sixteenth Judicial Circuit, State of Florida
Monroe County Courthouse
500 Whitehead Street
Key West, FL 33040
BOARD OF COUNTY COMMISSIONERS
Mayor George Neugent, District 2
Mayor Pro Tern David Rice, District 4
Danny L. Kolhage, District 1
Heather Carruthers, District 3
Sylvia J. Murphy, District 5
Office of the County Attorney
1111 12`h Street, Suite 408
Key West, FL 33040
(305) 292-3470 — Phone
(305) 292-3516 — Fax
In Re: Department of Community Affairs v. Monroe County, et al.
Case No.: 08-2035, Div. of Administrative Hearings (DOAH)
Dear Mr. Madok:
Please find enclosed herewith the transcript of the December 3, 2008 closed attorney/client
session of the Monroe County Board of County Commissioners regarding the above -
referenced matter. Under F.S. 286.011(8), the transcript may be part of the public record
because the litigation has concluded.
Thank you for your assistance with this matter. Please contact me should you have any
questions.
Sincerely,
Robert B. Shillinger
Monroe County Attorney
Enclosure
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BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY
ATTORNEY -CLIENT CLOSED SESSION
WEDNESDAY, DECEMBER 3, 2008
Re: Working Waterfront
COUNTY COMMISSIONERS:
George Neugent, Mayor
Heather Carruthers, County Commissioner
Mario Di Gennaro, County Commissioner
Sylvia Murphy, County Commissioner
Kim Wigginton, County Commissioner
COUNTY STAFF:
Roman Gastesi, Jr., County Administrator
Suzanne Hutton, County Attorney
Robert Shillinger, Assistant County Attorney
Susan Grimsley, Assistant County Attorney
TRANSCRIPT OF PROCEEDINGS
Proceedings of the Board of County Commissioners
of Monroe County Attorney -Client Closed Session, at the
Harvey Government Center, 1200 Truman Avenue, Key West,
Florida on the 3rd day of December, 2008, commencing
at approximately 10:05 a.m. and concluding at approximately
10:35 a.m., as reported by Lisa Roeser, Registered
Professional Reporter and Notary Public, State of Florida
at Large.
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(305) 289-1201 / Fax 289-1642
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MS. HUTTON: A closed attorney -client session
pursuant to Section 286. 011 (8), Florida Statutes
will now be held. This is in the matter of the
Department of Community Affairs versus Monroe County,
DOAH 08-2035.
The persons attending the meeting will be the
County Commissioners, the County Administrator, Roman
Gastesi, County Attorney Suzanne Hutton, Chief Assistant
County Attorney Bob Shillinger, Assistant County
Attorney Susan Grimsley and a certified court reporter.
Since the law prohibits any other person from
being present at the closed session, the commissioners,
the County Administrator, the attorneys for the County
and the court reporter will now remain in this meeting
room, and all other persons are required to leave the
room. When the closed session is over, we will
re -convene and re -open the public meeting. This public
meeting is now closed.
MAYOR NEUGENT: Okay.
MS. HUTTON: If you want to bring the closed
session to order I'll read the rest of the information
that we have to read into the record.
MAYOR NEUGENT: Okay.
MS. HUTTON: For the record, this meeting
is being held upon the request of the County Attorney
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Suzanne Hutton, who announced at a prior public meeting
-- actually I think that was Bob Shillinger,
Assistant County Attorney who was asked at a prior
public meeting held on November 19th that he needed
advice concerning the pending lawsuit, DCA versus
Monroe County, DOAH 08-2035. At that meeting, the
Board approved holding today's closed session, and
public notice was given at the November 19th, 2008
BOCC meeting, through publication of the agenda for the
12-3-08 BOCC Special Meeting and through publication as
a display ad in the Key West citizen on November 16th
and November 23rd. The Keynoter on November 15th and
November 22nd and the Reporter -- I'm not sure if
that was on the 14th but certainly on November 21st.
For the record, and the benefit of the court
reporter, each of us will state our name and position
starting with the county commission.
COMMISSIONER CARRUTHERS: Heather Carruthers,
County Commission, District 3.
COMMISSIONER DI GENNARO: Mario Di Gennaro,
County Commission, District 4.
MAYOR NEUGENT: George Neugent, County Commission,
District 2.
COMMISSIONER MURPHY: Sylvia Murphy, County
Commission, District 5.
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COMMISSIONER WIGGINGTON: Kim Wigginton,
County Commission, District 1.
ADMINISTRATOR GASTESI: Roman Gastesi,
County Administrator.
MS. HUTTON: Suzanne Hutton, county attorney.
MS. GRIMSLEY: Susan Grimsley, Assistant
County Attorney.
MR. SHILLINGER: Bob Shillinger, Chief Assistant
County Attorney.
MS. HUTTON: Just as a reminder, we will only
be discussing settlement negotiations and strategy
relating to litigation expenditures. We cannot take any
decisive action at this meeting. We can only provide
information and the commission can provide direction
to the attorneys. Any decisions that the Board makes
has to be made in an open session.
I am going to turn the discussion, initially, over
to Bob Shillinger.
MR. SHILLINGER: Good morning. Obviously the
reason we are holding this hearing today, this
meeting today, instead of at a regular meeting
is this contemplates a lengthy process. The other
complicating factor is we have a trial scheduled for
December 16th and we wanted to get direction on
whether you wanted us to resolve the matter,
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withdraw the amendment or proceed to trial. And so that
is why we here today in a closed session. Again,
we can't take definitive action, but we can certainly
discuss the options that are at our door step.
To give you some back ground, you have gotten a
lot of background so I will summarize. The comprehensive
plan amendment was several years in the making. We
transmitted the final adopted version in February
of 2008 and that is when it was adopted.
DCA found it was not compliant with a variety
of state laws including principles of guiding
development consistency so they filed a notice of
intent to declare it wasn't consistent and wasn't
compliant and that triggered an automatic administrative
hearing when local government sent up a comp plan
a DCA rejected comp plan amendment. DCA rejected, and it
triggers an automatic administrative hearing.
We have, pursuant to the board's direction,
we have been engaged in negotiations to try to
resolve that.
Those negotiations produced what you have in front
of you in terms of a compliance agreement and the back
up second part of that would have been the adoption.
In theory today's proceeding would be in three
parts. We have our closed session where we have our
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discussion. We would then go to an open session to vote
on compliance agreement. We get beyond that, we'll have
to deal with the adoption hearing but I think
there is a couple of issues there so we'll talk
about that in a minute.
At the closed session, one of the limits of a
closed session are we are only allowed to have certain
people in the room.
The client
which is
the board,
the lawyers and chief
operating
officer,
executive
officer for the county, county administrator.
We are not allowed to have in our chief expert,
expert staff person who knows this stuff better then
anybody and that is Drew. That is one of the limits
of a closed session but it's a statutory created
exception to the sunshine law. The court interpreted
it very narrowly and so we don't want to try and tread
anywhere over the line that has been clearly defined
so that hampers us sometimes in closed session and
especially for two new commissioners. That is
set forth in the statute. There is no wav
around it so it's just what we have to live with
when we have these closed sessions.
So having said that we have again the agreement,
the compliance agreement is basically a boiler plate
agreement that sets forth the frame work for adopting
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legislatively remedial amendments which would
solve DCA's objections to the originally
transmitted amendment.
If we don't adopt the compliance agreement
and we proceed to hearing, we will not proceed on this
document. We will proceed on the original February,
2008 adopted amendment which candidly I can be as
candid as I can because we are in closed session wasn't
a very good work product and we don't have a very
defensible position.
We would in summary that going to hearing would
be a waste of time. We don't think we would have
much chance of success. You have a question?
COMMISSIONER DI GENNARO: Well, basically my
question to you is this. I don't know what is going
to be resolved today or not but is there any way to
postpone it in case we do have to continue to go into
a workshop or whatever we have to do, not make the
decision to drop it or not drop it but --
MR. SHILLINGER: Yes, we can attempt
to do that. There are no guarantees that one, the
administrative law Judge would grant a continuance
but if the parties are in agreement they likely
would.
Number two, you would have -- we would have to
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get the agreement specifically DCA and probably the
concurrence of the other parties. Now I think
folks have shown -- the folks involved in negotiations
have shown an interest in trying to resolve this
through negotiations because litigation is just a
completely different approach to how we have gone
about this. Nobody has taken any depos. Nobody has
done any discovery. Nobody has taken the steps necessary
to get ready for trial.
COMMISSION DI GENNARO: Nobody is going to
be prepared.
MR. SHILLINGER: Right. So I don't think we are
going to have anybody yelling no, we are going the
16th come hell or high water but there is no guarantees
COMMISSIONER CARRUTHERS: But on the 16th, we
would be talking about the February agreement not this
new compliance.
MR. SHILLINGER: Right. So there is nobody that
has taken steps to really prep it for trial so I think
there would be -- there would be strong consideration
given to a request that we continue that and we engage
in further discussions and negotiations.
COMMISSIONER DI GENNARO: How fast can you
find out what DCA is probably the main party. They
wouldn't object.
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MR. SHILLINGER: The lawyer for DCA who I am
in contact with is unfortunately out of town at a
family funeral this week so I have very limited
ability to get ahold of him.
COMMISSIONER DI GENNARO: Have you had any
previous discussion?
MR. SHILLINGER: We have had some discussion
and he has indicated that they would not be pushing
that hard for us to go to trial so the other options
you have and the options are withdraw the amendment
completely, start the process over and start the
legislative process.
That would allow a couple of things. One, the
developer instead of trying to pursue what they think
they need to develop the project they want, through the
comprehensive plan process, they could attempt to
negotiate a development, a 380 agreement which would
allow, if there are contradicting comp plan LDR
provisions to be amended or modified through a
negotiated process to get them what they need to build
it, it would also allow Growth Management staff to go
back and develop legislative -- they would resume
the development legislatively, a comprehensive working
waterfront amendment. This planned amendment, proposed
settlement agreement only applies to new Stock Island
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LM
area. Leaves for another day the issue of working
waterfront throughout the rest of the county.
MAYOR NEUGENT: So, Bob, in my discussions with
Drew there was and also some of the principles who were
involved in the development on Stock Island, the
development agreement which will be discussed in our
open meeting is something that allows that Drew feels
that might be the most expeditious way to deal with
through the 380 process to deal with the new Stock
Island project.
MR. SHILLINGER: Right.
MAYOR NEUGENT: The other thing that was discussed
with him is that we could also work on the settlement
agreement, delay the trial, work on the settlement
agreement, find out which elements contained within
that the Commissioners have heartburn over and we
could address that also. We would be working on
parallel --
MR. SHILLINGER: Parallel tracks.
MAYOR NEUGENT: Parallel tracks working on the
development agreement for New Stock Island project and
then while we are also modifying dealing with the
settlement agreement and open discussions with
Commissioners and trying to find something that we can
all agree on through a consensus building process.
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COMMISSIONER MURPHY: Excuse me. On both of
those are you referring to the new Stock Island project
or is the second one the working waterfront?
MAYOR NEUGENT: The development agreement would
be with new Stock Island and then we would address
that separately from working on modification because
everyone else -- the other developers out there
Robbies which is the one that sticks out in my
mind would be set aside from moving forward until we --
if we could arrive at modifying the settlement agreement
and Drew would also be working on the development
agreement with -- that would later come back to the
county Commission for approval with the new Stock
Island folks.
COMMISSIONER MURPHY: But neither one of these
is referring to a working waterfront county wide.
COMMISSIONER CARRUTHERS: We're all just talking
about Stock Island.
MAYOR NEUGENT: Yes, this is pretty much a focus
on the new zoning proposal by DCA and the settlement
agreement.
MR. SHILLINGER: Right, the settlement agreement
originally was set up as a county wide comprehensive
plan for all working waterfronts.
The settlement agreement at the first settlement
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conference DCA floated the idea of carving out a
unique district for the Safe Harbor area and incorporate
more then just new Stock Island. It would incorporate
Robbies and Joe O'Connell's property and the sewer
utility and making it its own future land use category.
COMMISSIONER DI GENNARO: What piece of
property, piece of the whole.
MR. SHILLINGER: Bernstein, when you say the
Bernstein property it's a little specific.
MAYOR NEUGENT: I am going to make a statement
just so we can all know where we stand on this. I think
based upon some quotes that have been attributed to
the Commissioners in the paper I think we all recognize
and feel that there are elements of Stock Island
especially this deep port harbor area that need to be
redeveloped. They are big contributors to near shore
water pollution from the standpoint of the mess that has
been out there. Some of it has been cleaned up and I
really feel that we need to have an open discussion
amongst ourselves to try to determine what we feel like
is something that we should be moving forward on and
that we can agree upon.
The other thing in light of the economic times
that we're dealing with, I think anything that we can do
to facilitate employment and new jobs and do something
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that will help our economy is also a good thing so
I would just like to hear what the other commissioners
have to say.
MR. SHILLINGER: We got to keep this discussion
limited to the litigation and the settlement strategies
and expenditures so I mean as long as we keep that in
the mind that, you know, is that something that we
would want to try to resolve this lawsuit through is
negotiating some sort of redevelopment process
for the Safe Harbor area. I think we're safely within
the act.
COMMISSIONER DI GENNARO: He want this discussion
so that we can move on and find out what we can do with
the settlement agreement so that gives us then the
right that we can discuss it. Am I right or wrong?
MR. SHILLINGER: You're correct.
COMMISSIONER WIGGINTON: I have a question.
Are there clear lines between a development agreement
the comprehensive plan amendment and what is now what I
am calling a zoning issue or do they all have to be
blurred together?
MR. SHILLINGER: A 380 development agreement
which is distinct from a non 380, chapter 380
area of critical state concern statute has a
provision in there that allows us to adopt a three
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part developmental agreement between the county and
the state through DCA and the landowner developer
which would allow us to avoid or bend or modify
specific LDRs and comp plan provisions that might
otherwise stop that agreement. That is different
then a rezoning or a comprehensive plan amendment that
would address that particular area.
COMMISSIONER WIGGINGTON: 380 agreement would
make it unnecessary to have a comp plan amended or
a zoning change.
MR. SHILLINGER: Right. Now the 380 agreement
obviously has to get approved by DCA.
MAYOR NEUGENT: And DCA is not a big fan of the
380 agreement.
MR. SHILLINGER: No, they are not. They have in
the past said they were not going to consider any
more 380 agreements, but given their posture and they
are the ones who raised the issue of creating the zoning
category. Future land use category for the deep port
harbor and also have the governor issuing a
mandate to state agencies to not stand in the way of
development that would spur the economy. That attitude
may have changed. We don't know that though.
MAYOR NEUGENT: Bob, what direction do you need
from the Commission right now?
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MR. SHILLINGER: Right now when we come back
I would like for your direction -- when we come back
to open session I would like a formal vote and give me
a head nod now, but for a formal vote on whether we're
going to accept the compliance agreement and proceed
to an adoption hearing. Option B would be withdraw
the amendment and start over completely or
option C, would be to give directions to staff to go
back to the negotiating table and try and craft a
better agreement that would be more tolerable
and acceptable to the commission and give us some
direction as to what you would like.
MR. GASTESI: Is that called a postponement?
MS. HUTTON: A continuance.
COMMISSIONER MURPHY: Okay. Just so I don't
spin my wheels, number one, I would like to say that
anything we decide or anything we talk about today
-- yes, the economy is important, putting people to
work is important, etc. but what we do had better
stand the test of ten years from now when the economy
is a hell of a lot better, we hope.
With that said, this is what I would like to see.
Now tell me if I am spinning my wheels. Separate these
two. Separate the working waterfront that the state
wants, the working waterfront plan in part of the
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comp plan, do that separately. Do the Stock Island
Safe Harbor whatever you --
MR. SHILLINGER: Through a 380 agreement.
COMMISSIONER MURPHY: With a 380 totally
separate from that and craft that to suit the area,
suit the commissioners, suit the developers. I think
it can be done if we separate those two. It's the
coming together of those two, I think and going
back in all this paper work you can just see where
the two began to come together and suddenly they
were just one animal. Can we do that. Can we
separate, if the commission agrees, could we just
totally separate those two?
MR. SHILLINGER: Sure.
COMMISSIONER MURPHY: And do the 380 with Stock
Island.
MR. SHILLINGER: I can see a couple of different
ways we can do that within the frame work of the 3
options and that obviously would not be option one
which is adopt it, adopt it, adopt it and you're
done. That would not be -- you could do it under
option two which is reject it with all the amendments
and start the process over or you could do that under
option three which is continue the December 16th
hearing and direct staff to try and negotiate with
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and correct me if I am misinterpretating what you
are saying, direct staff to negotiate with DCA and
the affected parties in the context of the litigation
in trying to come up with a more comprehensive
working waterfront throughout the state at the same
time bringing up the 380 agreement to go through the
process so under option B or C I could see that process
going forward.
COMMISSIONER CARRUTHERS: I have a bunch of
questions here. The new Stock Island development
the 380 agreement that we are talking about only
refers to two parcels or two sort of sections within
the entire deep port harbor of Stock Island.
MR. SHILLINGER: Yeah, whatever would be owned
by the developers party.
COMMISSIONER CARRUTHERS: Who have come to you.
MR. SHILLINGER: Right.
COMMISSIONER CARRUTHERS: If we go ahead with a
380 agreement for them, are we in any way opening
ourselves up to the possibility that whatever concessions
we grant there we have to grant to anyone else
in this area?
MR. SHILLINGER: Possibly.
COMMISSIONER CARRUTHERS: So if we pursue --
MR. SHILLINGER: I'll give you the lawyer's
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punt. There may be expectation. Is there a necessary
requirement. They would have to be similarly
situated before they could raise some sort of
equal protection and if you have a valid reason
they are not a protected class suit. It would be looked
under a rational basis test. You have to have a
valid non discriminatory reason why you picked this
guy over that guy.
COMMISSIONER CARRUTHERS: Well, I mean if I
were an attorney for anybody else there I would say
well, the state and the county have already recognized
that this whole thing is one unit so whatever applies to
one parcel should apply to every parcel.
COMMISSION DI GENNARO: Also another problem
that could come up in that one section that you
accomplish what they can they might not be enough
infrastructure for the other sections to get it. That
is why we have to look at it. I am concerned basically
about the infrastructure and that is why we have to
look at that Stock Island as a picture. I personally
think and another question I have is the 380 agreement
versus trying to settle this now what is the time
frame on the 380 agreement?
MR. SHILLINGER: I'll defer to Suzanne. I
mean that is probably a six to 8 month process.
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MAYOR NEUGENT: I will share with you that
Drew feels like we ought to do a 380 agreement
i.e. a development agreement with new Stock Island
while moving forward on these settlement agreements
that we have here that we all have heartburn over.
but maybe we can arrive at something that we can all
work with from the standpoint of the Deep Port
Harbor zoning.
COMMISSIONER WIGGINGTON: One would be
unnecessary if you worked out the other one.
COMMISSIONER CARRUTHERS: Exactly. You wouldn't
need a 380.
COMMISSIONER WIGGINGTON: This is a unique
piece of property. Unique area. They are all
different pieces and parts of it you wouldn't have a
need for deep port harbor if you worked out -- I mean
zoning if you worked out a 380 agreement. You may not
even have to have a working waterfront.
MR. SHILLINGER: You may have working waterfront
issues apart from the deep port harbor elements of
it in other parts of the county.
COMMISSIONER WIGGINGTON: Different things.
MR. SHILLINGER: Right and to get back to
Commissioner Carruthers question in terms of the
expectations of other property owners, because my
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understanding is that the new Stock Island group
assembled the largest ownership there, there aren't
going to be others who are similarly situated that
they are going to have a compelling case to say we
have got a deep port harbor or we have, you know,
the ability to do the same things that they have
done there.
MAYOR NEUGENT: I think that we need to because
what we are discussing right now would seem to me like
we are going to rediscuss this when we have the
open hearing.
MR. SHILLINGER: Absolutely.
MAYOR NEUGENT: What direction do you need
from the commission in closed session?
MR. SHILLINGER: I would like to know is just a
head nod, give me a formal direction whether or not
you want us to accept the compliance agreement as
proposed and proceed to an adoption hearing.
No, okay.
Do you want us to withdraw the working waterfront
amendment completely, run up the white flag, call off
the hearing and start the legislative process over
completely?
MAYOR NEUGENT: I don't think I know the answer
to that right now.
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MR. SHILLINGER; The third one would be do you want
us to move to continue the December 16th hearing.
COMMISSIONER WIGGINGTON: Yes.
MR. SHILLINGER: And go back to the negotiating
table with DCF and the affected parties and on the
legislative aspect of this which is a comprehensive
plan amendment to make it go away from this -- go back
to a county wide process and give us direction to
pursue a development agreement, 380 agreement
with new Stock Island to resolve those things.
MAYOR NEUGENT: I think the answer to the third
part is going to come out of the whole new discussion
that we have in the next meeting.
MR. SHILLINGER: Right, and that is why we
would have that discussion openly.
COMMISSIONER DI GENNARO: I would say that
we postpone it. We go forward today and see what
happens and we can always go back into their --
MAYOR NEUGENT: The question that DCA are
going to have to answer here. First of all will
they accept us going the 380 route. The other thing
are they going to accept our request for the continuance?
the postponement and then the others we are going to
have to discuss concerning the settlement agreement
what we can modify in here and that is going to take
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place in the open discussion.
MR. SHILLINGER: Absolutely.
MAYOR NEUGENT: If we reach an agreement
in the settlement we don't need a 380 agreement.
We just need a development agreement.
MR. SHILLINGER: Right if you restate
comprehensive.
COMMISSIONER CARRUTHERS: You mean the deep
port harbor.
MR. SHILLINGER: It incorporated the EPA
elements but that is what is causing the heartburn
for others is the mixing of the two.
MR. GASTESI: It just seems that you're all
in agreement with the third option. You just don't
have the details to move forward but for this purpose
and for this closed session that's it. Let's just see
where the decisions are later.
MS. HUTTON: Let me bring one item up and that
is that if you choose option number 3 and DOAH has not
concluded the hearing we have a hearing scheduled on
December 16th. What do you want us to do?
COMMISSIONER CARRUTHERS: We want to postpone it.
MS. HUTTON: If they deny the postponement, my
question is we need a back up plan if DOAH denies the
postponement.
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MAYOR NEUGENT: What can we work out in two weeks.
MR. SHILLINGER: We can talk to DCA
Monday morning. We can add this on to the special
meeting we have Monday and after we get those
questions answered by DCA on Monday we'll know
how to --
MS. HUTTON: Bring it up in the open session.
COMMISSIONER DI GENNARO: George Neugent is not
just a pretty face, you know.
COMMISSIONER CARRUTHERS: Can I ask one question.
When we are talking about the settlement agreements,
do we have any idea about whether it is more expeditious
to try to correct all of the perceived flaws in what
we are looking at or start from scratch.
What is the best way?
MAYOR NEUGENT: That is a legal process I was
talking about. If we could be working on that and if
Drew and new Stock Island want to go with their own
separate 380 agreement with those developments
we can do both of those.
COMMISSIONER CARRUTHERS: What gets us to
the finish line quicker and if they say withdraw and
start from scratch is quicker then we don't have to
go through this process.
MR. SHILLINGER: I would say withdrawing and
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going from scratch is the longest process.
COMMISSIONER CARRUTHERS: Okay.
MR. SHILLINGER: You have to go back to the
planning commission. They have a lot of work product
so they are not reinventing the wheel.
MAYOR NEUGENT: And that is Drew's position
also.
COMMISSIONER MURPHY: May I ask one question.
What is in question and when is it going to be heard
if nothing else happens on the 16th and what we are
talking about here today in both closed and open
sessions. Does this pertain only to new Stock
Island or does it pertain to all of the people who
were involved at that huge long planning commission
meeting when they were discussing all of the property.
MR. SHILLINGER: The December 16th hearing would
be limited to DCA's findings that the document that
the commission transmitted on February 4th 2008 which
we adopted on February 4th, 2008 whether that complied
with the applicable provisions of state law and
consistency, the concurrency issues and everything
else there. That is what we would be litigating.
COMMISSIONER MURPHY: But which of these parties
was involved in that. Who did it involve.
MR. SHILLINGER: The participants in the
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litigation would be the five interveners. Actually the
Navy didn't intervene. South Florida Regional Planning
Commission was denied intervention.
COMMISSIONER MURPHY: What I am getting at is
the landowners.
MR. SHILLINGER: The landowners, you have
new Stock Island would be there. You would have the Key
West Resort Utilities. You would have Robbies. Last
Stand did intervene but that is not what she is asking
and I believe Joe O'Connell intervened as well so
there would be the landowners.
MAYOR NEUGENT: The only thing I think we need
to know at this point in time, is that we are all
in agreement that we are going to ask for a postponement
of the trial.
MR. SHILLINGER: Yes.
MS. HUTTON: Do you want to close the closed
session.
COMMISSIONER WIGGINGTON; I have a question
before we do that. Starting from scratch as it was
explained to me starting back in February starting with
the agreement before --
MR. SHILLINGER: Picking up the process, the
work product that was rejected in February and
substituted for what was actually adopted.
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COMMISSIONER WIGGINGTON: Yes.
MR. SHILLINGER: Yes, but I think you have to go
back through the original, you know, DRC, planning
commission process as well.
MR. GASTESI: And you use up one of your
applications next year.
MR. SHILLINGER: That is the other consideration.
MR. GASTESI: We only have two a year so we
would be using one of those up.
MR. SHILLINGER: Thank you for bringing that up.
That is one consideration is that anything done to a
compliance agreement doesn't count on our two comp
plan submissions every year. We are allowed to
transmit two major comp plan amendments every
year and so if we go through the agreement process
the compliance agreement process it doesn't count
on our two submissions.
COMMISSIONER CARRUTHERS: So what we are going
to do is ask for a continuance and go down the path of
the 380 agreement and revisit this deep port harbor.
COMMISSIONER DI GENNARO: And find out next
week.
MAYOR NEUGENT: Rediscussing all this.
MR. SHILLINGER: With Drew in the room and
everybody else.
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COMMISSIONER WIGGINGTON: As junior commissioners
this is a little more difficult to grasp then those with
gray hair on the commission.
MAYOR NEUGENT: That's all right. I am asking
that you listen to us.
COMMISSIONER CARRUTHERS: If we end up at the
end of this process with a deep port harbor
designation that we are all happy with then do we need
a 380 agreement?
MAYOR NEUGENT: That is up to the developer.
They may not want to pursue the 380.
MR. GASTESI: Probably not. Do you want a
continuance or a postponement?
COMMISSIONER CARRUTHERS: What is the
difference?
MR. SHILLINGER: They are the same unless
you have a different understanding.
MS. HUTTON: Closed session is now terminated and
we will reconvene in the public meeting.
(End of proceedings).
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CERTIFICATE
STATE OF FLORIDA
COUNTY OF MONROE
I, Lisa Roeser, certify that I was authorized to and did
stenographically report the foregoing proceedings and that the
transcript is a true and complete record of my stenographic
notes.
DATED this 9th day of December, 2008.
Lisa Roeser
Registered Professional Reporter
All Keys Reporting - Court Reporters - (305) 289-1201
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