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Item K1* 1:3 0 p.m. Closed Session * BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 3/20/13 — MAR Division: County Attorney Bulk Item: Yes No XX Staff Contact Person: Bob Shillinger. 292-3470 AGENDA ITEM WORDING: An Attorney -Client Closed Session in the matter of Reynolds v. Utility Bd of the City of KW, dba Keys Energy Services, PSC Docket No. 120054-EM. 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 Bob Shillinger, Assistant County Attorney Derek Howard, Assistant County Attorney Susan Grimsley, Assistant County Attorney Steve Williams, special litigation counsel Jay LaVia and Robert "Schef'Wright and a certified court reporter. PREVIOUS RELEVANT BOCC ACTION: 2/26/13 BOCC Special Meeting — BOCC approved Closed Session for 1:30 p.m. on 3/20/13 in Marathon, FL or as soon thereafter as may be heard 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 DISPOSITION: Revised 2/05 Not Required X AGENDA ITEM # 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 I I 1112`h Street, Suite 408 Key West, FL 33040 (305) 292-3470 — Phone (305) 292-3516 — Fax In Re: Reynolds v. Utility Board of the City of K.W., d/b/a Keys Energy Services, PSC Docket No. 120054-EM Dear Mr. Madok: Please find enclosed herewith the transcript of the March 20, 2013 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, V Robert B. Shillinger Monroe County Attorney Enclosure C AUNTY SO�MONROE KEY WESTLORIDA 33040 (305)294-4641 Suzanne A. Hutton, County Attorney" Robert B. Shillinger, Chief Assistant County Attorney ** Pedro J. Mercado, Assistant County Attorney ** Susan M. Grimsley, Assistant County Attorney ** Natileene W. Cassel, Assistant County Attorney** Cynthia L. Hall, Assistant County Attorney ** Christine Limbert-Barrows, Assistant County Attorney** Derek V. Howard, Assistant County Attorney Lisa Granger, Assistant County Attorney Steven T. Williams, Assistant County Attorney ** Board Certified in City, County & Local Govt. Law August 2, 2013 Amy Heavilin, Clerk of the Court Sixteenth Judicial Circuit, State of Florida Monroe County Courthouse, Suite 101 Key West, Florida 33040 Attn.: Vitia Fernandez, Deputy Clerk BOARD OF COUNTY COMMISSIONERS Mayor George Neugent, District 4 Mayor Pro Tem Danny Kolhage, District 1 David Rice, District 4 Heather Carruthers, District 3 Sylvia J. Murphy, District 5 Office of the County Attorney I I 1112`h Street, Suite 408 Key West, FL 33040 (305) 292-3470 — Phone (305) 292-3516 — Fax Re: Florida Public Service Commission Docket No.: 120054 Complaint of Robert D. Reynolds and Julianne Reynolds against Utility Board of the City of Key West, Florida, d/b/a Keys Energy Services Dear Vitia: Please find enclosed herewith a transcript of a closed session of the Monroe County Board of County Commissioners on the above -referenced matter. The closed session took place at the March 20, 2013 BOCC meeting in Marathon, Florida. The above -referenced litigation has concluded, and this transcript can be added to the public records on the BOCC meeting of March 20, 2013. Very truly Laurie Daiftigue Paralegal, Litigation Enclosure: Transcript of Closed Session on March 20, 2013 c MEETING OF THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS ATTORNEY -CLIENT CLOSED SESSION RE: REYNOLDS v. UTILITY BOARD OF THE CITY OF K.W., d/b/a KEYS ENERGY SERVICES, PSC Docket No. 120054-EM HELD AT THE COMMISSION CHAMBERS 2798 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 WEDNESDAY, MARCH 20, 2013 1:34 P.M. - 2:22 P.M. Commissioners Present: COMMISSIONER DANNY KOLHAGE MAYOR PRO TEM HEATHER CARRUTHERS MAYOR GEORGE NUGENT COMMISSIONER DAVID R. PRICE COMMISSIONER SYLVIA J. MURPHY County Staff Present: CERTIFIED COPY COUNTY ATTORNEY BOB SHILLINGER, ESQ. ASSISTANT COUNTY ATTORNEYS SUSAN GRIMSLEY, ESQ. and STEVE WILLIAMS, ESQ. COUNTY ADMINISTRATOR ROMAN GASTESI SPECIAL LITIGATION COUNSEL ROBERT "SCHEF" WRIGHT, ESQ. 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 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MAYOR NUGENT: We will now call the closed session to order. MR. SHILLINGER: For the record, this meeting is being held at my request, when I announced, at a prior BOCC Special Meeting, held on February 26, 2013, that I needed your advice in the matter of Reynolds versus Utility Board of the City Of Key West, doing business as Keys Energy Services, PSC Docket No. 120054-EM. At that meeting, the Board approved holding a closed session today, March 20th, 2013, and public notice was given through public announcement on the 26th of February, as well as the publication of today's agenda on the County's website. For the benefit of the record and the court reporter, each of us will state our name and position, starting with the Commission. MAYOR NUGENT: Time out. Are we off the air? COMMISSIONER CARRUTHERS: I don't know if we are, because we can still see ourselves. MR. SHILLINGER: We can do the process of identifying ourselves MAYOR NUGENT: Okay. MR. SHILLINGER: -- at this point. COMMISSIONER KOLHAGE: Danny Kolhage, Commissioner, district one. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 3 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER CARRUTHERS: Heather Carruthers, Commissioner, district three. MAYOR NUGENT: George Nugent, Commissioner, district two. COMMISSIONER RICE: David Rice, Commissioner, district four. COMMISSIONER MURPHY: Sylvia Murphy, Commissioner, district five. MR. GASTESI: Roman Gastesi, County Administrator. MR. SHILLINGER: Bob Shillinger, County Attorney. MS. GRIMSLEY: Susan Grimsley, Assistant County Attorney. MR. WILLIAMS: Steve Williams, Assistant County Attorney. MR. WRIGHT: I'm Robert Scheffel Wright, Special Utility Counsel for the County. MR. SHILLINGER: All right. 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 direction to the attorneys. Any decisions that this Board makes concerning this case must be done at a meeting open to the public. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 4 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And I will start us off with a little background. At our last closed session you had given me direction to attend a PSC status conference, three or four days after our last closed session, and said, "Come back and tell us what they said and we'll make a decision on where we're going further, in that regard." So, we went to that meeting. I attended by telephone. Mr. Wright was there in person. And, essentially, what was decided was that the complaint needed to be revised because it was outdated. Mr. Smith, Mark Smith had filed this back before Keys Energy had run the lines. And he was still attempting to force Keys Energy, or get the PSC to order Keys Energy to run the lines. And, we all know that the lines have already been run. So, they -- it.was agreed that he had to repackage his complaint and amend it. And, then, we would have a further discussion on the jurisdictional issues. Mr. Smith, eventually, did that. We got a copy of it last week. Mr. Wright is here to talk about the complaint. The proposed strategy that he is recommending, and, you know, the larger picture issues of what's at stake in going forward, the benefits of going forward, and the -- before the PSC. So, I will All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 turn it over to Schef, as he is known. And if you want to present from the podium, the microphones help everybody hear, because the acoustics are a little tough. MR. WRIGHT: Good afternoon, Mayor, Commissioners. Thanks for having me down here. Actually, I lived for about a year, when I was a little teeny person, in Key West, when my dad was stationed there for a brief time. So, it's good to be back. I've been back a number of times. I'm happy to take your questions at any time in my remarks. I do have a few things that I can address and I'll just start, and you can jump in anytime. As I think you know, the circuit court case was dismissed with prejudice. That decision was upheld by the Third District Court Of Appeal. However, in its decision, the DCA said, the appellant -- the appellant adds, Ms. Putney and the County are free to raise their issues and claims before the Florida Public Service Commission. We are simply not telling the PSC they are done ab initio. The appellants can raise their claims to PSC and we expressed no views, no opinion as to the merits of those claims. So, as far as the DCA is concerned, we are free to go forward to the PSC. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 If the outcome of that case is adverse to either party, either party, that would be the Reynoldses and the property owners association on the one hand, County, and Ms. Putney on the other hand. Any appeal of that order would go directly to the Florida Supreme Court by Constitution and Statutory law. So, we have the PSC Docket. And that docket was initiated on -- yes, ma'am. COMMISSIONER CARRUTHERS: I have a question. You said, if the outcome is adverse to either side, it -- MR. WRIGHT: Sure. COMMISSIONER CARRUTHERS: -- goes to the Supreme Court? MR. WRIGHT: Yes, ma'am. COMMISSIONER CARRUTHERS: How can the decision not be adverse to one side or another? MR. WRIGHT: Well, it's probably inartful wording. The losing party at PSC could either -- either side could appeal to the PSC. That's all I meant. MR. SHILLINGER: To the Supreme Court. MR. WRIGHT: That the PSC could appeal to the Florida Supreme Court. COMMISSIONER CARRUTHERS: But it's not automatic. It's only if they choose to do so, right? All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WRIGHT: Correct. COMMISSIONER CARRUTHERS: Okay. COMMISSIONER KOLHAGE: Has the standing issue been settled by the PSC? MR. WRIGHT: No, sir. And, I was going to get to that because there are multiple standing issues here. The initial complaint was filed March 5th of last year. Informally, there was no order issued. Clarifying, it's been informally. Everybody agreed to hold everything in abeyance while the DCA process ran its course. The opinion was rendered last month by the DCA. The PSC Docket has been reactivated. As Mr. Shillinger mentioned, we have an issue ID conference on March 1. At the PSC, we have another issue ID conference scheduled at the PSC. It's at the staff level, not -- there are no commissioners present. We have another issue ID conference scheduled for 1:30 p.m. tomorrow afternoon. The Reynoldses filed an amended complaint, as was discussed at the March 1 issue ID conference, after hours on Monday, March lath, nine days ago. Technically, that can count as being filed on Tuesday, March 12. Operationally, that doesn't matter and I'll get to that in a minute. Well, mind if I talk now? Let me -- there are a All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 8 in 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 number of issues that could be addressed at the PSC, but -- and I'm happy to go into as much detail or as little as you all want. But, the three basic issues, I think, are these first, as Commissioner Kolhage asked, what about standing. There are standing issues. I don't believe that either the Reynoldses or the property owners have standing to maintain their action at the PSC because their action grounds in the territorial agreement between Keys Electric Service and Florida Keys Electric Co -Op. That agreement only applies, in my opinion, to KES and FKEC, by its own terms. That agreement expressly states that it creates no third -party benefits and no third -party beneficiaries. I don't think they have standing to bring that action. Additionally, I think there's a jurisdictional -- I think that the pro -electrification folks have other problems, in that there is no PSC statute that provides that the PSC has the authority to order KES or any municipal or cooperative utility to provide service. And, similarly, there is no statute that says any municipal or cooperative utility has an affirmative statutory obligation to provide service. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 9 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 On the contrary, for public utilities, it's a defined term under the statute. Such as, Power -- Florida Power & Light, there is an affirmative statutory obligation to provide service. So, absent formal jurisdiction and absent standing under the territorial agreement, I think that the pro -electrification folks have serious standing problems at the PSC. I will mention, in passing, that I think Ms. Putney also has a very serious standing problem at the Public Service Commission. The two more meaningful issues, if -- assuming we get past the standing issues, are these. Does the PSC have jurisdiction to order Keys Electric Service to provide service as requested by the Reynoldses, and the Newtons and others who want it on No Name Key? And, secondly, if the Public Service Commission does have such jurisdiction, should they exercise it, in this case, to require service. So -- COMMISSIONER KOLHAGE: Can I stop you there? MR. WRIGHT: Yes, sir. COMMISSIONER KOLHAGE: If the service is already out there, why isn't that question moot now? MR. WRIGHT: I think the answer to that, Mayor, Commissioner Kolhage, is because no service is being All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 provided. And, as I understand it, no service is being provided because the County has not and, presently, does not intend to issue building permits for the final connection of the -- what we call the service laterals, from the lines that are out there, to the houses that are out there. COMMISSIONER CARRUTHERS: Is there juice in those lines now? MR. WRIGHT: I don't know that for a fact. I believe the answer is, yes, but I do not know that for a fact. If I were KES I would have left the switch open so that they would not be energized, but to get juice to it would be a simple matter of closing the switch. COMMISSIONER KOLHAGE: Okay. So, I'm trying to get this clear in my mind. So, is our issue whether or not, and how far the Public Service Commission's authority extends? In other words, from the pole -- the poles are already there. The lines are not energized. Is the issue between the pole and the residence, or, I mean, is there a -- I'm trying to see whether or not it would also afford us going any further, here's my one vote, are there any bigger issues? What is the big issue for Monroe County, in terms of, is it a jurisdiction issue, is it a question All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of infringing on Keys Power? What is the issue? What's the big issue? MR. WRIGHT: Mr. Mayor, Commissioners, I think there are several answers to that. I think Mr. Shillinger has a more comprehensive handle on those issues. But, the answer to your specific question is, yes. The issue posed here does raise a question of infringement or impairment on the County's jurisdiction to enforce its ordinances, more generally than just for these 43 houses on No Name Key. And, additionally, there's also the issue of the County's potential vulnerability. And, I don't know how important this is to you all, in any event. But to a citizen lawsuit, under section 403412 Florida Statute, by Ms. Putney, demand that could -- hypothetically, demand that the County enforce its existing ordinance, Comp Plan and Land Development Regulations to prohibit, as required under those regulations, the extension of these lines. COMMISSIONER KOLHAGE: From the pole to the house? MR. WRIGHT: Yes. MAYOR NUGENT: That's the ordinance. COMMISSIONER KOLHAGE: Right. COMMISSIONER CARRUTHERS: That's the ordinance All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because -- MAYOR NUGENT: That obstructs. MR. SHILLINGER: Right. Because, under State law, the utility is allowed to run the lines in the rights -of -way. COMMISSIONER CARRUTHERS: On rights -of -way. COMMISSIONER KOLHAGE: Okay. MR. SHILLINGER: So -- COMMISSIONER KOLHAGE: So, can we require a permit for a person to connect to utilities, the power? MR. SHILLINGER: Yes. COMMISSIONER KOLHAGE: And we're not issuing that permit? MAYOR NUGENT: Right. Because of the ordinance. MR. WRIGHT: Right. MR. SHILLINGER: We require -- and it's even a little more technical than this. And, unfortunately, in a closed session I can't have the technical staff in here to explain it, but I'll explain it as best as I can understand it. We require a permit for us to inspect the connection. And utility doesn't want to energize it without that inspection. Because they don't want to, obviously, power up and they're not -- you know, there All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 be a problem. So, it's -- the permit is required to get the inspection. The inspection is required to do the energization. COMMISSIONER CARRUTHERS: Energize it. MR. SHILLINGER: To energize it. So, yes, we require a permit. COMMISSIONER KOLHAGE: Okay. And, they -- is the -- the plaintiffs in this, are they trying to say that the PSC should order Monroe County to issue the permits? MR. WRIGHT: That is their claim. I will tell you that, in my very, very strong opinion, the Public Service Commission does not have jurisdiction over Monroe County. They cannot order you to provide service. Their best case is, the PSC says -- and, again, I don't agree with this. But, their best case scenario is, the PSC says, we have jurisdiction to order KES to provide service. Our jurisdiction is superior in every respect to Monroe County. We can talk about preemption laws, if you want to. And, therefore, we considered whatever we're going to consider. And, at the conclusion, we ordered KES to provide service. There KES sits with an order from the PSC, claiming that it has exclusive All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 jurisdiction to require service, and having done so. Mr. Smith, the plaintiffs, the Reynolds, the Newtons and the pro -electrification folks would then take that PSC order to the -- back to the circuit court down here, and say, Your Honor, we have this PSC order asserting that KES is now required, as a matter of utility regulatory law, to provide service. We now ask you for a Writ of Mandamus to Monroe County, to issue these building permits. That's how it goes. MAYOR NUGENT: Okay. MR. SHILLINGER: In short, what we're fighting over is, where is the line drawn between the County's jurisdiction and the PSC's jurisdiction. MAYOR NUGENT: That being the case, for me, it then comes to, are we, and I go along with the jurisdictional dispute, you saying that PSC is not going to order us, in conflict with our existing ordinance, to hook up. We -- we're -- we're at an impasse right there, as I see it. PSC is not going to tell us, contrary to our ordinance, to issue a permit to hook up. Is that what I'm hearing? MR. WRIGHT: I -- two things. One; yes, sir. I believe that to be true. I believe that whatever else they may say, they will recognize that they do not All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 15 Im 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have jurisdiction over Monroe County. MAYOR NUGENT: That being said -- Bob, you're looking at me like I'm not making any sense. MR. SHILLINGER: I'm waiting for the next part of the question. COMMISSIONER CARRUTHERS: I know what the next part of the question is. The next part is going to be, if they're going to say that anyway, why don't we just step aside, right? MAYOR NUGENT: No. That's not what I'm getting COMMISSIONER CARRUTHERS: Okay. MAYOR NUGENT: I just want to make sure that we're all on the same page. And you're there, I think. With the impasse that we're at right now, is, however, without the Comp Plan amendment change, LDR change, which DEO is requiring, our Growth Management director is saying that they need, then we're going to have to go through that process, which is the lengthiest of the processes. COMMISSIONER CARRUTHERS: I don't know if it was the lengthiest. COMMISSIONER KOLHAGE: Unless -- MAYOR NUGENT: No, because we thought that -- correct me where we are not communicating here. But, All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 at the last commission meeting we thought that the PSC might step in here and say, hook them up. We've got -- we've got jurisdiction here. COMMISSIONER KOLHAGE: No, I never thought that. MAYOR NUGENT: No? MR. SHILLINGER: No. COMMISSIONER MURPHY: No. COMMISSIONER KOLHAGE: Heaven forbid that they would do that. But what this attorney is saying is that, okay. They get a ruling that says, yes, Keys Energy has a positive duty to provide the power. They go back in the circuit court in this mandamus action. MR. SHILLINGER: And order us to do it. COMMISSIONER KOLHAGE: Wave that in front of the judge and say, okay. Now, order them to issue permits. But -- and I'll say one other thing. On the other hand, if none of these people have standing, this case goes away? MR. WRIGHT: Yes, sir. MAYOR NUGENT: It can't go away. The case may go away, but the situation can't go away. COMMISSIONER KOLHAGE: Where we -- COMMISSIONER CARRUTHERS: Wait. Then we are left with dealing with our Comp Plan to cure the situation. MR. SHILLINGER: As well as the remaining issues All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 17 im 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in circuit court. Because we're not talking about today, on the validity of our ordinance adoption, that type of writing. MR. WRIGHT: And I would say, my opinion, as it should be. It should be back to the commission. Deal with your Comp Plan and back in circuit court. I think that the underlying decision was wrong, personally, you know, but, DCA held otherwise. But, I think Judge -- I forget his name. MR. SHILLINGER: Audlin? MR. WRIGHT: No, the other judge. MR. SHILLINGER: Payne? MR. WRIGHT: Payne. You know, I think he had it right. I think this is a matter for the court. You got this interesting conflict between a validly promulgated environmental ordinance, your Comp Plan, your LDRs and the PSC's jurisdiction over territorial agreement. Even if we're FPL, the most they can say is that FPL has to provide service. But, PSC doesn't resolve environmental statutes. And we're not attempting to regulate service territories. We, the County -- MAYOR NUGENT: This is not an environmental type of situation. MR. WRIGHT: I'm sorry. It's a Growth Management All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 situation. But, I think the analysis is essentially the same, you have a valid Growth Management ordinance. And the PSC doesn't regulate Growth Management. We don't regulate territorial agreements. There is no territorial dispute here. There's no argument as to who's going to provide service. There's no issue of potential uneconomic duplication at distribution facilities. MR. SHILLINGER: But is there -- MR. WRIGHT: This issue -- MR. SHILLINGER: All right. It's not a fight between Keys Energy and the Co -Op. If -- that's what a territorial dispute would be. And that's not what this case is about. If it was a fight between Keys Energy and Florida Keys Electric Co -Op, PSC would clearly have jurisdiction. COMMISSIONER KOLHAGE: How long do you think it would take the PSC to rule on these standing issues? MR. WRIGHT: My best estimate -- Mr. Mayor and Commissioner, my best estimate is that we could get a vote from the Public Service Commission on June 18th. And I'll tell you how I get there. They've got an agenda conference scheduled on that date. The next earlier agenda conference is scheduled for May 14th. I don't think they have time All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for the parties to adequately brief the issues, and for the Public Service Commission staff to write their recommendation on the issues, in time to get on the May 14th agenda. That's why I think it's going to -- to June 18th, to get a vote, or it would come out about 20 days thereafter. That's my best estimate and I will also tell you I know that that's the date that lead staff attorney on the case is looking at, too. So, three months. MAYOR NUGENT: And -- COMMISSIONER MURPHY: Not bad. MAYOR NUGENT: So, it's pretty clear to me, that the only way through this, and that's if there's majority support of the commission, to move this forward through the process that was described to us by the Growth Management director, of which we took a vote. Then what are we talking about? COMMISSIONER KOLHAGE: Right. The only -- I understand what the Mayor is saying. And I'm trying to -- and I'm struggling with that. The only thing we're here to protect against is an adverse ruling by the Public Service Commission that's going to enhance their case in the local circuit court. Is that it? MR. SHILLINGER: And to defend your ability to legislate in the issues of Growth Management, and All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 20 IN 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 whether you can regulate the connection to the utilities that they have the right to run. This is the same issue with respect to the 905 folks in Key Largo. So, it's where do you draw the line? COMMISSIONER KOLHAGE: Okay. MR. SHILLINGER: And, so, do you want to participate in that discussion or do you want to take a pass and roll and let -- COMMISSIONER KOLHAGE: Okay. I hear you. I don't like what you're saying, but -- MAYOR NUGENT: Well, what I'm hearing, and I'm -- I want to hear from my attorney. If -- so, we're looking at, and I don't see a problem with 905 because there's a construction issue, and then we're going through a process that was excluding all the appeals and efforts, that they'll probably be finishing construction about the time that we could have the amendment changed, if there's not a -- MR. SHILLINGER: Assuming you have three votes tc pass it. MAYOR NUGENT: Assuming you have three votes to pass. But that was the direction that we took, was to go down that path; did we not? COMMISSIONER KOLHAGE: Yeah. MR. SHILLINGER: You took the direction, as I All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 understand it, was to gather the information so that you could make the decision, the policy decision on whether you wanted to continue this ordinance in place. MAYOR NUGENT: Okay. Maybe I'm fast forwarding, that based upon the interpretation of the discussion that took place at the last commission meeting, that we're moving forward with that process after we get the information. MR. SHILLINGER: I -- COMMISSIONER MURPHY: Maybe. MR. SHILLINGER: -- I understand that that's what you're getting -- that is your read of it. And I think that's probably where it may end up. But, in terms of the official action that's been taken to date, it was a step in that direction by you asking for information, but there has been no direction to the Growth Management staff to process -- MAYOR NUGENT: Okay. MR. SHILLINGER: -- the amendment or change the code. MAYOR NUGENT: Here is my other question to you, from the standpoint of further litigation. So, Public Service Commission rules that we're -- we can't override the in -place ordinance that the County has. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 22 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So, then, who becomes the potential target for litigation? We're holding up what everybody else -- and all of a sudden -- and we have, really, in my opinion, no defense to keep them. Because Fish & Wildlife has said, "There's no impact to the animals." So, this is just some kind of principle decision that you're taking to keep these people from hooking up. MR. SHILLINGER: That me, Bob Shillinger is taking, or that me, the County? MAYOR NUGENT: No, the County Commission. MR. SHILLINGER: I just want to make sure we're -- you know, we're talking, you, who we're talking about. It is a policy decision of the Board to restrict that -- to use that term of restricting it there. So, yes, that is -- MAYOR NUGENT: You heard my description of, we then become the litigant target in Bob Reynolds' case. MR. SHILLINGER: We already are. COMMISSIONER MURPHY: We are. MR. WRIGHT: Or the -- MAYOR NUGENT: Well, it becomes more clear that PSC says we're not holding up anything. It's strictly Monroe County Commission. MR. SHILLINGER: I don't think Mr. Reynolds has All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ever thought the PSC was holding up anything. He's always thought it was Monroe County was holding it up. COMMISSIONER KOLHAGE: Let me ask you this question. If the PSC rules the other way, and says, no, we don't. We have no jurisdiction. That's a County responsibility, County ordinances. You're the one responsible for -- you know, go fight it out somewhere else. Does that play into the County benefit, in the local circuit court and mandamus action? MR. SHILLINGER: Yes, because if -- here is the way the mandamus works. To have a Writ of Mandamus, you have to have -- the applicant who wants that permit must have a clear legal duty, or must have clear legal right to the relief that he's looking for. The government agency must have a clear legal duty to provide it. In other words, there should be no disputes on the law. And, he must have exhausted all of his administrative remedies and the government just won't exercise that duty. It's a complete -- it's a writ that will compel the government agency to exercise a ministerial function. So, if Mr. Reynolds, if he succeeds at the PSC, and the legal issues are in -- and it's upheld on All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 24 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 appeal, you know, it's not challenged, and he has an order from the PSC that says the utility has, you know, the ability to run the lines and the County does not have the ability to impose the objections to the permits. You know, it's just a technical building code issue. Does it, you know, have enough wires, enough amperage, whatever the technical building code issues are. Then, he would be in a position, a stronger position to go and get that Writ of Mandamus because the clear legal duty and the clear legal right issues would weigh in his favor, assuming he won. MAYOR NUGENT: Here's my confusion, amongst many. The other case or the other thing that's involved here is whether we properly advertised technicality. So -- MR. WRIGHT: That's a separate ordinance. MAYOR NUGENT: -- this could go away, based upon this separate -- MR. SHILLINGER: Yes. Yes. MAYOR NUGENT: -- technical issue. MR. SHILLINGER: Yes, it could. MAYOR NUGENT: So, I guess what I'm asking here -- MR. WRIGHT: We cross that first -- MAYOR NUGENT: -- because of the potential action All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the Commission, what is our exposure, liability exposure when we're denying, and the only people that I know, who -- some who live on CBRS and some who don't live on CBRS, that we're denying them the right to hook up. So, what's our liability when somebody sues us for discrimination? MR. SHILLINGER: Our -- okay. We're now -- you're going a little far afield of this case, but I'll try and contain it, and keep this within this case. The counsel that represents us on those issues has opined that he sees very, very remote issues, with respect that would give rise to liability. MAYOR NUGENT: Okay. MR. SHILLINGER: Okay. MAYOR NUGENT: So, no liability because we're -- MR. SHILLINGER: Well, you're exercising a governmental function. It was adopted in good faith. MAYOR NUGENT: What is the justification for doing it though, Bob? MR. SHILLINGER: In -- MAYOR NUGENT: Denying them the right to hook up after -- and, clearly, they have the right to run the electricity out there. So, we're taking a position that, no we're not going to let you hook up. Why are we not letting them hook up? All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 26 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SHILLINGER: Because you have an ordinance that says you will not -- MAYOR NUGENT: What is the purpose of the ordinance? What purpose does it serve? COMMISSIONER CARRUTHERS: The purpose of the ordinance was to prevent development out there. MR. SHILLINGER: Was to manage growth out there. MAYOR NUGENT: And, now that we have a tier system in place, now that we discourage, not prohibit, discourage development, we've done all of those things. COMMISSIONER MURPHY: No, we haven't. We're doing it now. MAYOR NUGENT: Absolutely. COMMISSIONER CARRUTHERS: That may be -- MR. SHILLINGER: That's the decision. That's the policy argument to have when you bring back an ordinance change. COMMISSIONER CARRUTHERS: Yes. MR. SHILLINGER: I mean -- MAYOR NUGENT: Because, what has happened, through the actions of some, the Planning Commission, the County Commission, we put in place and set forward putting something in place that is even stronger than the Federal and State position of discouraging. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SHILLINGER: Yes. MAYOR NUGENT: And you see no liability in doing something like that? COMMISSIONER MURPHY: No. COMMISSIONER CARRUTHERS: It's not the only place we've done something like that in our code and LDRs anyway, in our Comp Plan. COMMISSIONER MURPHY: The LDRs are always -- MAYOR NUGENT: You have to show them to me, I don't know. MR. SHILLINGER: Again, the lawyer who is defending us in that action, and I'm trying to keep this confined to this discussion, has indicated to me that he sees no basis for their State damages claim. And, a remotely weak, very weak Federal claim that they have. So, he characterizes their -- the strength of their claim is very remote, and very weak. MAYOR NUGENT: So, essentially, my interpretation of what you're telling me is that we can pick and choose, no matter who, for whatever reason, and deny people electricity? COMMISSIONER MURPHY: Oh, George. MR. SHILLINGER: You're reading much more into that than what I said. COMMISSIONER MURPHY: Yes. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 28 in 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER KOLHAGE: Mr. Mayor, can I ask another question? MAYOR NUGENT: Yes, sir. COMMISSIONER RICE: Between now and this estimated June determination that you're talking about, sir, how many hearings, meetings and so forth will we have to go to, to get to that point? MR. WRIGHT: Best estimate -- Mr. Mayor, Commissioner Kolhage, best estimate is we got an issue ID meeting tomorrow. There will probably be another issue ID meeting. And, then, the only other meeting or formal proceeding, that I think we would participate in, would be the actual Public Service Commission agenda conference, which is much like a County Commission meeting, at which you all vote on matters pending before you. It would be the agenda conference on June 18th. In terms of additional activity, in the meantime, we would have to make some filings. Our recommendation, if you decide to go this direction, is move to dismiss the complaint. And my guess is, I haven't discussed this with Ms. Brown, staff attorney. My guess is, PSC would say, "Schef, we want to get this resolved. You can brief the issue of the Reynoldses and property owner's standing in the All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 29 IN 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 briefing that we're going to have in this case, along with briefing the jurisdictional issues. And this should be exercised if we have jurisdiction. I think there would be a Motion to Dismiss, a Motion to Strike some of their relief, because some of their relief asks for specific relief against Monroe County, over whom you may have no jurisdiction. And I think we have two rounds. So, we have a Motion to Dismiss, Motion to Strike, probably, at the same time. Probably, a week from next Monday is when we would file it. And, then, we would probably have two rounds of briefing; an initial brief by each side saying, these are our positions, here's why, and, then, a reply brief by each side. COMMISSIONER KOLHAGE: Mr. Shillinger, do you have any idea how much this is going to cost us? MR. SHILLINGER: Well, Mr. Wright and his partner provided us a preliminary budget, that to get to the point of a hearing would take us between 20,000 and $30,000. The issue identification and definition was five to ten. And, then, the briefing and argument, the PSC was 15 to 20. So, assuming those are stacked, and those numbers are still where we are in the ballpark, I add those to being 20 to 30,000. MR. WRIGHT: And that's to get us through All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 30 sm 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 June 18th. And I will go further, again. The wild card here -- I will go further than that. I'll give you a guarantee hard cap of $30,000, to get us through June 18th, or through the hearing, on which -- whatever date the PSC says it's going to be. The wild card is that somebody -- the party agreed by the -- on concluding after the PSC's decision, on June 18th, could say, conceivably, you know, I discussed this now with Mr. Shillinger. Could say, we want an evidentiary hearing on some issue, like, should the PSC exercise jurisdiction. MR. SHILLINGER: Public policy issues, behind it. MR. WRIGHT: Then, that would be additional costs, and that's not included here. But, I'll give you a guarantee, hard cap of $30,000, to get us through the date on which the PSC votes on the pending pleadings. COMMISSIONER KOLHAGE: But, then -- and, then, they have an opportunity, if it goes the way you think it's going to go, do they have the opportunity to appeal a standing order that goes against them? MR. WRIGHT: Yes, sir. COMMISSIONER KOLHAGE: And that's the Supreme Court? MR. WRIGHT: Yes, sir. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 31 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER KOLHAGE: So, you're talking about more lawyers? MR. SHILLINGER: You're talking about another 25,000. COMMISSIONER CARRUTHERS: How long would it take to get to the Supreme Court? We made our Comp Plan and LDR changes before. MR. WRIGHT: Mr. Mayor, Commissioners, if your question is, how long would it take to get done in the Supreme Court, my best estimate is 10 to 12 months after the date of the PSC order. So, if you assume they vote June 18th. The order comes out the end of July. Probably, sometime June -- May, June, of next year, just because I've got some experience with it. And that's about how long appeals to the Supreme Court normally take. I have seen as short as four months, I have seen as long as two years. COMMISSIONER CARRUTHERS: And if -- I mean, if, in the interim, the Commission decides to adjust and amend our LDRs to provide utilities in these areas. MR. WRIGHT: Then the issue becomes moot. COMMISSIONER CARRUTHERS: Yeah, the issue becomes moot. MR. WRIGHT: Right. And, we probably file a All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 32 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 joint motion to vacate the proceeding of the court and we would be done. COMMISSIONER CARRUTHERS: I have just another question and I'm not sure who can answer this. Assuming, that, either by court action, or through a change in our LDRs, we do allow limited utilities in these areas, how much additional liability does that place on us, in cases like Galleon Bay? In other words, does that increase the value of these properties now, and what's that liability? MR. SHILLINGER: Yes. It would, potentially, increase the value, in a damages trial, if there were utilities available as of the date the utilities were available. Most of their damages, though, are going to be based on damages as of the date of the taking, which is going to be -- COMMISSIONER CARRUTHERS: But that's for Galleon Bay. MR. SHILLINGER: -- years before. COMMISSIONER CARRUTHERS: What about other potential property MR. SHILLINGER: Well, here's the problem that you don't want to do. One, let's cut the baby in half solution is, allow the people who are currently there to hook up and impose some sort of regulation that All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would prohibit future people from hooking up. The next -door neighbor, same CBRS or just outside of CBRS, line passing through, then you have set up an equal protection claim. That's what you don't want to do, is -- COMMISSIONER KOLHAGE: But, how much of that is already -- how much of it is really developable, see, because a lot of that is not privately owned anymore. And my understanding is that very little of what's out there, is -- what's left out there is developable anywhere, regardless of the power issue. MR. SHILLINGER: There are enough lots out there that people are still competing. You have Galleon Bay and their 14 lots. COMMISSIONER KOLHAGE: But there's getting it through ROGO in that area, is going to be extremely -- take a long -- MAYOR NUGENT: Absolutely -- MR. SHILLINGER: It's not just ROGO. I mean, actually, Galleon Bay has been racking up ROGO allocations, because of, demand for tier threes has fallen off to the point that tier ones have percolated to the top of the ROGO queue. And, so, Galleon Bay has been racking up ROGO allocations, as they move along the process. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 34 IN 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MAYOR NUGENT: Right. That's only taken how many years, Bob? MR. SHILLINGER: What I'm saying is, at least at current market conditions, there is a greater likelihood that a tier one will get a ROGO, than it's -- it's -- but it's also, the other complicating factors, more than the ROGO is the ACP, which limits the number of allocations that can be given. COMMISSIONER CARRUTHERS: But that's only on this island. And there are -- this -- all of these decisions will have implications elsewhere through the Keys. Now, isn't this what we're asking Keys Energy, to bring us this information? MR. SHILLINGER: Yes. MAYOR NUGENT: Yes. COMMISSIONER CARRUTHERS: So, we can't really -- MAYOR NUGENT: This impacts any development already in existence, in a CBRS area. That's the issue that we're dealing with on 905. MR. SHILLINGER: Yes, as long as it's the issue, with respect to utilities. The difference being, though, that in a takings case, if the 905 folks have a house that it has made it through ROGO, it's up. Their property has not been taken. MAYOR NUGENT: And did -- All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 35 IN 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SHILLINGER: Has a use. MAYOR NUGENT: Right. But we're denying them, based upon an ordinance that exists, to hook up into a system. And, again, for me going back to the genesis of this situation, it was all about the majority, and the US Fish & Wildlife's position. The development aspect, for me, has been addressed. We have discouraged it to the 'nth degree. And what we've done, through the Planning Commission and action of the County Commission, and went a step further in the No Name Key and the CBRS issue, and said, prohibit. COMMISSIONER MURPHY: Okay. You don't think we're still discouraging? MAYOR NUGENT: No. And, again, I know we're not talking specifics. MR. SHILLINGER: And that's a legislative policy decision that you will have on another day. And that's a discussion -- you know, and that's the argument. MAYOR NUGENT: I just can't sit here and understand how anybody can justify doing it, at this point in time. COMMISSIONER RICE: Yeah, but it has nothing to do with this case. MAYOR NUGENT: Oh, I think it does. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER RICE: The reason why we're here. MR. SHILLINGER: Right. The reason why you're here is, do you want us to continue to spend County's resources in fighting the fight to determine, and get a clear determination as to where the boundary between our jurisdiction is, and the PSC's jurisdiction. Do you want to -- or do you want to let them encroach onto -- COMMISSIONER MURPHY: That would be very dangerous. MAYOR NUGENT: The ordinance is the issue. COMMISSIONER CARRUTHERS: Not in this case. COMMISSIONER RICE: No, no. COMMISSIONER CARRUTHERS: That's not what we're discussing now. COMMISSIONER KOLHAGE: Do you think, Bob, and I'm struggling with this, because I listen to this attorney say that by June -- first of all, you sound very convinced that these people don't have standing. Right? MR. WRIGHT: Yes, sir. That is my strong opinion. I can't guarantee you -- COMMISSIONER KOLHAGE: I can't guarantee you. And I wrote that -- I wrote that from others. So, you know, in June, this thing may go away. But if it All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 doesn't, and they take the case and they rule against the pro -power people, and they appeal, we're looking at another year, and another, altogether, 50, $60,000. Have I stated that -- MR. SHILLINGER: And if you're talking -- if you're talking about the cost of appealing this to the Supreme Court, the budget figure was a hard cap of 25,000 now. COMMISSIONER KOLHAGE: Plus the 30,000 to get us to June. MR. SHILLINGER: Right. And, then, also, just in the interest of full disclosure, understand, you still have the other litigation that's out there that we're not talking about today, that we are defending and we have insurance counsel that we pay at a rate of 155 an hour. So, there's cost going on there. I don't want you to think that I'm underselling the cost of -- COMMISSIONER KOLHAGE: The only way that I'm not willing to go forward with this is if you tell me that there is a larger issue, that it is important for us to get a determination on. MR. SHILLINGER: Okay. COMMISSIONER KOLHAGE: Because, at the end, if this goes completely the County's way, through an appeal, by the end of that term, we may have changed All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this to begin with. MR. SHILLINGER: Right. And the issue -- COMMISSIONER KOLHAGE: So, what's the point? MR. SHILLINGER: The point would be, is to determine, once and for all, to get clear legal clarity as to where are the limits of the County's ability to use the provision of utilities to regulate the hooking up to utilities as a Growth Management tool. COMMISSIONER KOLHAGE: And you believe that's important for us to find that out? MR. SHILLINGER: That's the policy decision the board made, our predecessor made. COMMISSIONER KOLHAGE: I'm asking you, as our attorney, do you think it's important for us to get that determination? MR. SHILLINGER: It's an important decision if you're going to continue to use that as a basis, as a Growth Management tool. If -- COMMISSIONER KOLHAGE: Well, we are. MR. SHILLINGER: If the decision is going to be made to do something different, then, no. COMMISSIONER KOLHAGE: Okay. I get you. MR. SHILLINGER: So, yes, it depends. COMMISSIONER KOLHAGE: Maybe yes and maybe no. All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER MURPHY: George. MAYOR NUGENT: Commissioner Murphy. COMMISSIONER MURPHY: The attorney would like to say something. MAYOR NUGENT: Mr. Attorney. MR. WRIGHT: Thank you, Mr. Mayor. I just want to add one thing for your consideration. I understand everyone's concern about not spending money. If we get to the decision, on June 18th, and PSC rules in the County's favor, and if you all, the County Commission, are going to go forward with consideration of amending your Comp Plan Ordinance, LDRs, it's a simple matter to move the Supreme Court to just hold the appeal in abeyance. And we would -- you wouldn't have to incur any cost, then, because there wouldn't be any briefing until the Comp Plan issue ran its course. If you amend the Comp Plan, then it goes away. If you don't amend the Comp Plan, then the Reynoldses and the Newtons can reinstate their -- the Reynoldses can reinstate their appeal and we will see what happens after that. COMMISSIONER KOLHAGE: Okay. We can do that unilaterally because the other party doesn't have to agree to that. Why -- All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. WRIGHT: The answer to that, technically, is, no, you can't do it unilaterally. My guess is that they would be amenable to that for practical purposes. Obviously, for practical purposes, they get back here and have -- for two reasons. One -- MR. SHILLINGER: Stay away from -- MR. WRIGHT: -- from you, that they're done. And the probability of their succeeding on appeal, at the Florida Supreme Court is, in my opinion, very low. COMMISSIONER RICE: Let me ask one question. Make sure I got this clear. The real issue here, if you peel away all of the BS, is, does the Public Service Commission have authority over Monroe County's ordinances, or does Monroe County have that authority? MR. WRIGHT: Yes, that's it. MR. SHILLINGER: It's a fair way of stating it. COMMISSIONER RICE: And, are we wanting to be definitive in our authority or do we want to be pushed around and, perhaps, in some ways, give up our authority? Maybe I should have shut up before I made the second statement. COMMISSIONER MURPHY: No. COMMISSIONER KOLHAGE: No. You said it well -- MR. SHILLINGER: You said you want to defend your ability? Do you want to, yes, defend your -- what we All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 think we would let our commission -- COMMISSIONER RICE: Well, my opinion on authority is, that's what we're going to defend. MR. SHILLINGER: Right. COMMISSIONER MURPHY: Yes. MR. SHILLINGER: So, the -- yes. I need some direction from you on this. I mean, obviously, it's a -- COMMISSIONER MURPHY: What do you want, head nods? MR. SHILLINGER: Well, I need some discussion from the board. We can't take definitive direction, but if it looks like -- yes, we have to bring it back in the open session, at -- during the County attorney report. COMMISSIONER MURPHY: Okay. MR. SHILLINGER: And ask for a vote. COMMISSIONER CARRUTHERS: For a motion to proceed, at least through June. MR. SHILLINGER: Proceed, yes. COMMISSIONER MURPHY: Okay. I'm with you. MR. SHILLINGER: All right. We'll do that. Okay. Can we bring that part back, as soon as we come back in, so Mr. Wright can get on the road, back to Tallahassee? All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COMMISSIONER MURPHY: Yes. MR. WRIGHT: Thank you. COMMISSIONER CARRUTHERS: I'm sorry that you have to go back to Tallahassee. MR. WRIGHT: I am too. I would love to stay down here. Thank you. MR. SHILLINGER: All right. Is there any further business to discuss before we close this closed session? MAYOR NUGENT: Closed session is closed. (The attorney/client closed session was concluded at 2:22 p.m.) All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West 43 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 llth day of April, 2013. Patricia A. Zischka All Keys Reporting — Court Reporters — (305) 289-1201 Locations in Key Largo, Marathon & Key West