Item I1*1:30 P.M. CLOSED SESSION *
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 9/21/11 -MAR Division: County Atto=
Bulk Item: Yes No XX
Staff Contact Person: Bob Shillinger. 292-3470
AGENDA ITEM WORDING:
An Attorney -Client Closed Session of the Board of County Commissioners in the matter of Gregory
Klimock, et al. v. Monroe County and State Board of Trustees of the Internal Improvement Trust Fund
Case No. 2010-CA-979-K.
ITEM BACKGROUND:
Per F.S. 286.011(8), the subject matter of the meeting shall be confined to settlement negotiations or
strategy sessions related to litigation expenditures.
Present at the meeting will be the Commissioners, County Administrator Roman Gastesi, County
Attorney Suzanne Hutton, Chief Assistant County Attorney Bob Shillinger, Assistant County Attorney
Susan Grimsley, Assistant County Attorney Derek Howard and a certified court reporter.
PREVIOUS RELEVANT BOCC ACTION:
5/18/11 BOCC approved Closed Session for 6/15/11 @ 2:30 p.m. in Marathon
6/15/11 BOCC continued to 7/20/11 BOCC @ 1:30 p.m. in Key West
7/20/11 BOCC continued to 8/17/11 BOCC @ 1:30 p.m. in Key Largo
8/17/11 BOCC continued to 9/21/11 BOCC @ 1:30 p.m. in Marathon
CONTRACT/AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATIONS:
N/A
TOTAL COST: Court Reporter costs INDIRECT COST: BUDGETED: Yes No
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY: Court Reporter costs SOURCE OF FUNDS:
REVENUE PRODUCING: Yes _ No xx AMOUNT PER MONTH Year
APPROVED BY: County Atty X 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 121n Street, Suite 408
Key West, FL 33040
(305) 292-3470 — Phone
(305) 292-3516 — Fax
In Re: Klimock, et al. v. Monroe County, et al., Case No.: CA-K-10-979
Dear Mr. Madok:
Please find enclosed herewith the transcript of the September 21, 2011 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
0
0
RE:
nq P N A I
MEETING OF THE ®' 1
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
ATTORNEY -CLIENT CLOSED SESSION
GREGORY KLIMOCK, et al. vs. MONROE COUNTY &
STATE BOARD OF TRUSTEES OF THE INTERNATIONAL
IMPROVEMENT TRUST FUND
CASE NO.: 2010-CA-979-K
HELD AT
COMMISSION CHAMBERS
2798 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
WEDNESDAY, SEPTEMBER 21, 2011
1:31 P.M. - 1:47 P.M.
Commissioners Present:
COMMISSIONER KIM WIGINGTON
MAYOR PRO TEM DAVID RICE
MAYOR HEATHER CARRUTHERS
COMMISSIONER GEORGE NUGENT
COMMISSIONER SYLVIA J. MURPHY
Staff Present:
COUNTY ATTORNEY SUZANNE HUTTON
COUNTY ATTORNEY SUSAN GRIMSLEY
CHIEF ASSISTANT COUNTY ATTORNEY BOB SHILLINGER
COUNTY ADMINISTRATOR ROMAN GASTESI
ALL KEYS REPORTING
Olde Towne Centre 600 Whitehead Street
9701 Overseas Highway Suite 206, 2nd Floor
Marathon, Florida Key West, Florida
305-289-1201 305-294-2601
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(The following proceeding commenced as follows:)
MAYOR CARRUTHERS: The open session is now closed.
If you have not been just named by Miss Hutton, please
vacate the premises. Someone's peeking around the corner
back there.
COMMISSIONER MURPHY: Run them out, Gabe.
MS. HUTTON: Call the closed session to order, Madam
Mayor.
MAYOR CARRUTHERS: Yes. I think I just did.
MS. HUTTON: Okay. For the record, this meeting is
being held upon request of County Attorney Suzanne
Hutton, who announced at a prior County Commission
meeting, held May 18, 2011, that I need advice in the
matter of Gregory Klimock -- Gregory Klimock, et al.
versus Monroe County and State Board of Trustees of the
Internal Improvement Trust Fund, Case Number --
MAYOR CARRUTHERS: Suzanne.
COMMISSIONER WIGINGTON: Wait. If you don't mind
because I just got a call. And last time I got a call,
from home, I was told we were on air, even though we're
in a closed session.
MS. HUTTON: Well, it will show the screen. It
normally does show the screen.
COMMISSIONER WIGINGTON: Are we on air? Okay.
Okay. Thanks.
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MS. HUTTON: They can't hear us.
MAYOR CARRUTHERS: Okay. So let's not revert to
sign language.
MS. HUTTON: Re: Case No -- yes. You might want to
cover your mouths with your hands while you talk so they
can't lip read.
COMMISSIONER NUGENT: Got a baseball glove?
MR. SHILLINGER: Catcher's mask?
MS. HUTTON: Case Number 2010 CA 979 K. At that
meeting the Board approved holding a closed session on
June 28th, 2011, at 2:30 p.m. Public notice was given to
the public through announcement at a closed session, at
the May 18th BOCC meeting, and through publication of the
June 15th, 2011 BOCC meeting. At each meeting after
that, for July 20th. At the June 15th meeting we
postponed it to July 20th with the same notice. On July
20th we moved it to the August 17th, 2011, BOCC meeting
with the same notice. And at the August 17th, 2011
meeting, the BOCC continued the closed session to
September 21st, with the same notice. Public
announcement at the meeting and for publication of the
September 213t meeting agenda on the Website.
For the record, and benefit of the court reporter,
each of us will state our name and position, starting
with the Commission.
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COMMISSIONER WIGINGTON: County Commissioner Kim
Wigington, district one.
COMMISSIONER RICE: David Rice, county commissioner,
district three.
MAYOR CARRUTHERS: Four.
COMMISSIONER RICE: Whatever. Monroe County.
MAYOR CARRUTHERS: Heather Carruthers, county
commissioner, district three. For sure. George.
COMMISSIONER NUGENT: County Commissioner George
Nugent, district two.
COMMISSIONER MURPHY: Direct five, Commissioner
Sylvia Murphy.
MS. HUTTON: County Attorney Suzanne Hutton.
MR. GASTESI: Roman Gastesi, county administrator.
MS. GRIMSLEY: Assistant County Attorney Susan
Grimsley.
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. You cannot take decisive
action at this meeting. We can only provide information
and you can provide direction to the attorneys. Any
decisions the board makes will be done in an open
meeting.
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And I'm going to turn it over to Bob Shillinger.
MR. SHILLINGER: Good afternoon. I E-mailed you
earlier this afternoon some photographs. I was going to
attempt to put them up on the board but we're having
iPhone and iPad technical challenges.
MAYOR CARRUTHERS: Got them.
MR. SHILLINGER: You got them?
COMMISSIONER WIGINGTON: Yes.
COMMISSIONER RICE: Got them.
MR. SHILLINGER: Pictures make it easy to understand
what we're talking about. I mailed them, E-mailed them
to the court reporter, for the record, so she can make
them part of the transcript, as well as everybody else.
What we're talking about today, you'll see these
three photographs. There is a rock jetty at the end of
4th Street.
If you space down to the next picture it shows you a
larger picture, which tells you it's on Summerland Key.
And then there's a land view picture looking straight
out.
That pile of rocks, the rock jetty has been there
since the 1950's. Mr. Klimock is the owner of the
property that's immediately adjacent to that, inside that
fence line of the photograph.
He has been trying to exercise dominion and control
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over that for a couple of years. His latest attempt was
a quiet title action, which he filed against the County
and the State Board of Internal Truman Trust Funds, the
folks that have jurisdiction over the sovereign submerged
lands. And what he was seeking was a declaration or
quiet title action, which declared that he is the owner
of the dirt underlying the pile of rocks, the rock jetty.
The state --
door.
MAYOR CARRUTHERS: Would somebody put a note on that
MR. SHILLINGER: There is a sign over there.
MAYOR CARRUTHERS: Oh, is there.
MR. SHILLINGER: The State has asserted ownership of
the bay bottom, underneath the pile of rocks. Our
ownership interest only goes to the end of 4th Street.
And our interest really is just an easement, for the
benefit of access.
We don't own the fee simple title to it. We just
have a dedicated easement. The right-of-way has been
dedicated when the subdivision was platted back in the
'50s. So we don't actually own any of the dirt. We just
have so much of an interest that allows for vehicle
access, pedestrian access, down to the edge of the water.
The State has -- well, Mr. Klimock filed a motion
for summary judgment against the State because they were
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the one, primarily, that he thought had a real claim to a
dispute in ownership. And the State fought that. And,
actually, the court has ruled in the State's favor.
Saying that the shoreline protection structure, even
though he may have built it, or his predecessor in titles
may have built it, does not qualify him, under the
statute to, by operation of law, be transferred to his
ownership because it happened prior to July 1st of 1975.
So the court has pretty much ruled the dirt underneath
the pile of rocks belongs to the State.
Mr. Klimock is attempting for rehearing. Then he
has indicated he will appeal that. But he's approached
us and asked us -- he gave us a settlement offer which
I'm obligated to convey to you. I'm not necessarily
going to recommend it, in light of what the court's
ruling.
What he was suggesting was that the County issue a
quitclaim deed to him for whatever interest we have
underneath the pile of rocks. We really don't have any
interest in the dirt, under the pile of rocks. But in
light of the court's ruling -- yes.
COMMISSIONER NUGENT: Is there any liability to
issuing the quitclaim deed?
MR. SHILLINGER: No. What you're saying when you
give a quitclaim deed is, whatever ownership interest,
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whatever portion of the bundle of sticks that I hold, I
give them to you.
COMMISSIONER NUGENT: Or I don't own anything?
MR. SHILLINGER: That's a little different thing
called a disclaimer.
COMMISSIONER NUGENT: Oh, okay.
MR. SHILLINGER: And that's where we're going to
differ a little bit from Mr. Klimock's original
settlement offer.
Since the court's ruled that it belongs to the State
and likely will get affirmed on appeal, I don't feel it's
probably appropriate for us to quitclaim any interest we
might have to him and bolster his claim against the
State.
MAYOR CARRUTHERS: Did you mean the State?
MR. SHILLINGER: Or just allow the court to enter a
judgment saying the County has no interest in the dirt
underneath the pile of rocks.
MAYOR CARRUTHERS: What is it he wants to do with
the dirt under the pile of rock?
MR. SHILLINGER: Well, he -- his real interest is,
he wants to put a fence up, down the pile of rocks. This
was back in front of you, back in 2007. Well, not all of
you.
MAYOR CARRUTHERS: Yeah.
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MR. SHILLINGER: But at least two of you.
COMMISSIONER WIGINGTON: Can I have --
MR. SHILLINGER: On a road abandonment. And he was
looking to abandon a portion of 4th Street. Well, that
went over like the pile of rocks. It was a 5-0 vote not
to do it. The community came out. People as far south
as Key West came out to speak against it. This is a more
narrowed approach of who owns the actual underlying dirt.
His stated principle then and today -- I'll get to
you in a second -- is that he's fearful that -- he wants
to be able to fence it because he's fearful that if
someone slips and falls on it, he will get sued. Well,
now that it's not his land, he may not have that.
MAYOR CARRUTHERS: What about people who climb the
fence and slip and fall that way?
MR. SHILLINGER: Then they have a little -- they
have a tougher case against him, but -- yes.
COMMISSIONER WIGINGTON: Which side of the street
does he live on, the side with the rocks, or the one
across --
MR. SHILLINGER: The side with the rocks.
MS. HUTTON: He's that big --
MR. GASTESI: The white house.
MS. HUTTON: -- white house.
MAYOR CARRUTHERS: Okay. This is familiar to me for
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some reason and I think I've heard it as a commissioner,
or you at least briefed us when we came --
MR. SHILLINGER: Right.
MAYOR CARRUTHERS: -- on board.
MR. SHILLINGER: It was this side over here.
COMMISSIONER WIGINGTON: He wanted to put a fence.
COMMISSIONER NUGENT: Which side does he own, the
right side, looking at it?
MS. HUTTON: Right.
MAYOR CARRUTHERS: He wanted --
MR. SHILLINGER: The rock side.
COMMISSIONER WIGINGTON: He wanted to put a fence
down the side of the rocks. And he was concerned with
liability of someone being on the rocks, his liability?
MR. SHILLINGER: Yes.
COMMISSIONER WIGINGTON: Okay. I got it.
MR. SHILLINGER: So my recommendation, I'm more
comfortable just agreeing for the court to enter judgment
saying, we have no interest in the dirt underneath the
pile of rocks and then letting him duke it out with the
State. Certainly, we don't want to assert any ownership
over the pile of rock and take on any liability
ourselves. So --
COMMISSIONER NUGENT: But, Bob, that is within the
jurisdiction of Monroe County?
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MR. SHILLINGER: I'm not sure I understand your
statement. Within the jurisdiction, yes. It's within
Monroe County.
COMMISSIONER NUGENT: So -- and -- and we don't own
the water column. The State has said that they own the
bay bottoms. The court has agreed with that.
MR. SHILLINGER: Right.
COMMISSIONER NUGENT: And --
MR. SHILLINGER: The State owns up to the mean high
water line.
COMMISSIONER NUGENT: And he put -- he or his
predecessor, or somebody, just put the rocks in. And
because of that, he's claiming ownership?
MR. SHILLINGER: Right.
COMMISSIONER NUGENT: Which has been denied to him?
MR. SHILLINGER: Yes.
COMMISSIONER NUGENT: So --
MAYOR CARRUTHERS: Well, he might own the rocks;
right?
COMMISSIONER NUGENT: Well, so -- did he then -- can
we, de facto, violate code by putting those rocks in?
MR. SHILLINGER: Well, it was done in the 1950s.
You have limitations. You have --
COMMISSIONER NUGENT: Oh, it was that far back?
MR. SHILLINGER: Yes. It was that far back.
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COMMISSIONER NUGENT: Okay.
MR. SHILLINGER: And it was before a lot of these
laws went into play, and filling sovereign submerged land
laws went into play. So back in the day that's what you
did, to protect the shore.
COMMISSIONER NUGENT: So why would we issue a
disclaimer and --
MR. SHILLINGER: Yes. Just --
COMMISSIONER NUGENT: -- let them have it?
MR. SHILLINGER: Or allow the court to enter
judgment against us saying we have no interest. That's
my recommendation. It's the cleanest. It gets us out.
Before I do that though, I want to make sure I have the
consent of my client to make sure I do that, so.
COMMISSIONER MURPHY: Yes.
COMMISSIONER WIGINGTON: Looking at this picture,
not only does he have his own canal and boat ramp, and a
large property -- I'm not saying anything about the
amount of land that he owns, and what he does own. I'm
just wondering what is the real fight over these rocks?
Certainly, it can't be what he's saying, in that there
was liability. What purpose could he have, if you played
this out, in wanting to bring the suit and do what he's
doing?
MR. SHILLINGER: I think he wants to exclude people
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from being able to come around that and walk on his
beach, perhaps. I mean, that's clearly his beach.
COMMISSIONER WIGINGTON: Okay. Okay.
MR. SHILLINGER: Yes. There are -- and I don't have
a good picture of it in the set that I sent, but there
are -- maybe the bigger picture shows that there are
three or four fingers that stick out. They're like
shoreline protection structures, either jetties or
fingers that he's put out, or the -- again, the
predecessor, Mr. Hutchins (Ph.), back in 1959, when it
was built, what they put out to kind of protect the
shoreline there. And it is a large piece of property.
So he's trying to maintain his beach --
COMMISSIONER WIGINGTON: Understood.
MR. SHILLINGER: -- in some respects. He's applied
to DEP for permits in the past. He's been fighting this
issue for -- Suzanne?
MS. HUTTON: I'm going to say, 12 to 15 years. At
some point he actually had the County Commission declare
that property a historic structure, against my advice to
him, not to do it because he would have to make it open
to the public, to get the exemption. You get -- you get
a small historical, if your property is declared
historical, some exemption, tax exemption. It's a modest
amount, but he wanted it.
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MAYOR CARRUTHERS: For the property or the jetty?
MS. HUTTON: For the house. The house was built by
the engineer to Flagler, for Flagler's railroad.
COMMISSIONER RICE: Right.
MS. HUTTON: Or something like that.
COMMISSIONER RICE: Then he realized that it didn't
work so well.
MS. HUTTON: It didn't work so well. So he had the
County Commission undeclare it a historical property.
COMMISSIONER RICE: And at some version of this, the
fight was really over whether his neighbor behind the
white picketed fence, he was trying to keep his neighbor
from parking his boat trailer there, parallel or at the
end of those rocks, which is just past his gate, over
here. So it was a neighborhood dispute, at one point.
Not sure whatever happened there.
MAYOR CARRUTHERS: Well, he seems pretty intent on
keeping people out.
COMMISSIONER MURPHY: Well, if he's that worried
about the rocks and the liability, why doesn't he just
remove the rocks?
COMMISSIONER NUGENT: Because he wants to fence off
his beach.
COMMISSIONER MURPHY: Well, yeah. But, I mean --
COMMISSIONER NUGENT: And what's wrong with that?
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COMMISSIONER MURPHY: Gee, nothing. If I had a
beach I would fence it off too.
COMMISSIONER NUGENT: There you go.
COMMISSIONER MURPHY: See.
COMMISSIONER WIGINGTON: It's obvious he needs
something to do, when he played with the State.
MR. SHILLINGER: All right. So that's the direction
I intend to take.
COMMISSIONER MURPHY: For the next 15 years.
MR. SHILLINGER: I don't think we're going to need a
vote on the actual item, since you have just given me
direction to take in the litigation, as opposed to a
settlement agreement. So I will take steps to allow a
judgment to be entered against us, in this case, saying
we have no interest in the underlying dirt. And we'll go
forward.
MAYOR CARRUTHERS: Okay.
MS. HUTTON: So we can close this particular closed
session.
MAYOR CARRUTHERS: All right.
MS. HUTTON: We'll go back into open session, in the
fashion we just went.
Do we really need to have Bell back in?
(Attorney/client closed session was concluded at 1:47 p.m.)
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CERTIFICATE
STATE OF FLORIDA,
COUNTY OF MONROE
I, Patricia A. Zischka, certify that I was
authorized to and did stenographically report the
foregoing proceedings and the transcript is a true
record.
Dated this 16th day of October, 2011.
Patricia A. Zischka
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