HomeMy WebLinkAboutItem J1* 1:30 P.M. TIME CERTAIN *
BOARD OF COUNTY COMIVIISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:
10/19/11 - KW
Division: County
Attorney
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 Florida
Key Deer v. Craig Fugate, et al., Case No. 90-10037-CIV.
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, special litigation counsel Patrick Raher,
Adam Siegel, and Douglas Wheeler and a certified court reporter.
PREVIOUS RELEVANT BOCC ACTION:
8/17/11 BOCC approved Closed Session for 9/21/11 @ 2:30 p.m. in Marathon
9/21/11 BOCC continued Closed Session to 10/19/11 @ 1:30 p.m. in Key West
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
BOARD OF COUNTY COMMISSIONERS
County of Monroe Mayor Holly Merrill Raschein,District 5
Mayor Pro Tem James K.Scholl,District 3
The Florida Keys Craig Cates,District 1
., Jl Michelle Lincoln,District 2
Robert B.Shillinger,County Attorney** David Rice,District 4
Pedro J.Mercado,Sr.Assistant County Attorney**
Cynthia L.Hall,Sr.Assistant County Attorney**
Derek V.Howard,Sr.Assistant County Attorney** Office of the County Attorney
Christine Limbert-Barrows,Assistant County Attorney** I I11 12'Street,Suite 408
Peter H.Morris,Assistant County Attorney ** Key West,FL 33040
Patricia Fables,Assistant County Attorney (305)292-3470 Office
Joseph X.DiNovo,Assistant County Attorney** (305)292-3516 Fax
Kelly Dugan,Assistant County Attorney
Christina Cory,Assistant County Attorney
Nathalia Archer,Assistant County Attorney
**Board Certified in City,County&Local Govt.Law
January 17, 2024
Kevin Madok, CPA
Clerk of the Court, 16'Judicial Circuit
Monroe County Courthouse
500 Whitehead Street
Key West, FL 33040
In Re: Florida Key Deer, et al. v. Fugate, et al., Case No.: 90-cv-10037,U.S.District Court,
Southern District of Florida
Dear Mr.Madok:
Please find attached scans of five transcripts of the attorney-client closed sessions held before the Monroe County
Board of County Commissioners on:
March 16, 2011;
April 20, 2011;
June 15,2011;
October 19, 2011; and,
December 14, 2011,
in connection with the above-referenced litigation. The litigation has concluded;under Fla.Stat.286.011(8),the
transcripts may be made part of the public record once litigation has ended.
Thank you for your assistance in this matter. Please contact me if you have any questions.
Sincerely
Digitally signed by Cynthia L.Ball
DN:cn-Cynthia L Nall,o-Monroe
County UOCC,ou,email-hall-
@� cynthiaC monroecounty-tl.gov,
_us
Date:2024.01.1615:56:06 05'00'
Cynthia L.Hall
Senior Assistant Monroe County Attorney
Attachments: Scans of Closed Session Transcripts dated 03/16/2011; 04/20/2011; 06/15/2011; 10/19/2011, and
12/14/2011
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY
ATTORNEY-CLIENT CLOSED SESSION
WEDNESDAY, OCTOBER 19, 2011
1 : 33 - 2 : 20 PM
Re : Florida Key Deer v® Craig Fugate, et al .
Case No . 90-10037-CIV
COUNTY COMMISSIONERS :
Heather Carruthers, Mayor
Kim Wigington, County Commissioner
David Rice, County Commissioner
George Neugent, County Commissioner
Sylvia J. Murphy, County Commissioner
STAFF:
Suzanne A. Hutton, County Attorney
Robert B. Shillinger, Chief Assistant County Attorney
Susan Grimsley, Assistant County Attorney
Roman Gastesi, County Administrator
TRANSCRIPT OF PROCEEDINGS
Proceedings of the Board of County Commissioners of
Monroe County Attorney-Client Closed Session, at the Harvey
Government Center, Key West, Monroe County, Florida, on the
19th day ®f October, 2011, commencing at approximately 1 : 33
p.m. and concluding at approximately 2 : 20 p.m. , as reported
by Susan L. McTaggart, Court Reporter and Notary Public,
State of Florida at Lards ®
All Keys Reporting
Old Town Centre 600 Whitehead Street
9701 Overseas Highway Suite 206, Second Floor
Marathon Key West
3 -289-1201 -294-2601
05 305
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2
P R 0 C E E D I N G S,
2 S . HUTTON: A closed attorney-client session
3 pursuant to Section 286. 011, Subsection 8, Florida
4 Statutes, will now be held. It is estimated the meeting
5 will take approximately thirty minutes . The persons
6 attending the meeting will be the County Commissioners,
County Administrator Roman Gastesi, County Attorney
8 Suzanne Hutton, Chief Assistant County Attorney Bob
9 Shillinger, Assistant County Attorney Susan Grimsley,, and
10 a certified court reporter.
11 Since the law prohibits any other person from being
1.2 present at the closed session, which by the way, I guess
13 1 should spell out that it is for Florida Key Deer v.
14 Craig Fugate, et al . , Case No. 90-10037-CIV. Since the
15 law prohibits any other person from being present at the
16 closed session, the Commissioners, the County
17 Administrator, the attorneys for the County, and the
18 court reporter will now remain in this meeting room, and
19 all other persons are required to leave the room. When
20 the closed session is over, we will reconvene and reopen
21 the public meeting, at which time we ' re going to start
22 another closed session, so while we will reconvene the
23 open meeting, it will just be a minute and we ' ll be in
24 another closed session. The Mayor will now close the
25 public meeting.
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3
I MAYOR CARRUTHERS : The public meeting is now closed.
2 S . HUTTON: For the record, this meeting is being
3 held upon the request of County Attorney Suzanne Hutton,
4 who announced at a prior BOCC meeting held August 17,
5 2011 that I needed advice in the matter of Florida Key
6 Deer v. Craig Fugate, et al . , Case No. 90-10037-CIV. At
7 that meeting, the Board approved holding today' s closed
8 session and public notice was given through public
9 announcement of the meeting at the August 17, Ill BOCC
10 meeting and through publication of the September 21, 2011
11. BOCC meeting on the County' s we site . At the BOCC
12 meeting held September 21, 2011, the BOCC continued the
13 closed session to October 19, 2011 at 1 : 30 p.m. and
14 public notice was given through public announcement at
15 the September 21, 2011 BOCC meeting and through
1.6 publication of the October 19, 2011 BOCC meeting agenda
1.7 on the County' s we site .
18 For the record and benefit of the court reporter,
19 each of us will state our name and position starting with
20 the Commission.
21 COMMISSIONER WIGINGTON: Kim Wigington,
22 Commissioner, District 1 .
23 COMMISSIONER RICE: David Rice, Commissioner,
24 District 4 .
......... 25 MAYOR CARRUTHERS : Heather Carruthers, commissioner,
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I District 3 .
2 COMMISSIONER NEUGENT : George Neugent, County
3 Commissioner, District 2 .
4 COMMISSIONER MURPHY: Sylvia Murphy, Commissioner,
5 District 5 .
6 MS . HUTTON: Suzanne Hutton, County Attorney.
7 R. GASTESI : Roman Gastesi, County Administrator.
8 MS . GRIMSLEY: Susan Grimsley, Assistant County
9 Attorney.
10 MR. SHILLING ER: Bob Shillinger, Chief Assistant
11 County Attorney.
12 MS . HUTTON: Just as a reminder, we will only be
13 discussing settlement negotiations and strategy relating
14 to litigation expenditures . You cannot take any decisive
15 action at this meeting. We can only provide information
16 and you can provide direction to the attorneys . Any
17 decisions this Board makes concerning this case must be
18 done in a meeting open to the public.
19 And I 'm going to turn this over to Bob Shillinger.
20 MR. SHILLINGER: Good afternoon. I want to talk to
21 you about the FEMA Key Deer case . There ' s three points 1
22 want to bring to your attention. One is the money that
23 we 've spent so far on the case just to get some feedback
24 on that. Two is your position on clarifying whether we
25 can take a position on making the injunction permanent or
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1 not. And three, I want to discuss this Draft MOU that
2 I ' ve handed to each person a copy. I ' ll be collecting
them. afterwards . Since it ' s just a draft I don' t want it
to get circulated just yet . The court reporter, for the
5 record, has been given a copy and it ' ll become a
permanent part of the record at the close of the
7 litigation.
5o point one, we have spent to date just over
9 $140, 000 with Hogan & Lovells as the outside firm, the
10 D. C. firm that we ' re using. It ' s expensive, and so
11 wanted to bring that to your attention. For the next
12 fiscal year ®® that ' s last fiscal year.
13 MAYOR C RRUTH R ti Do you feel like it ' s been money
14 well spent so far?
15 MR. €iI LI G R: So far, yes . There has been
16 learning curve from them in some respects . There ' s been,
17 when I say duplication of effort, they've had two or
10 three members of their team attend some of the meetings
19 because of getting up to speed on the issues, so that has
20 contributed to the expense . We ' re going to work with
21 them to kind of pare that down now that they' re up to
22 speed® We ' ve budgeted for the current fiscal year
23 250, 000 . If this hundred and forty is an indication of
24 where we are, we may need to shift some funds towards the
25 end of the fiscal year to be able to account for the, be
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1 able to appropriately pay for them. So I wanted to bring
2 this to your attention early on just because the bills
3 are going to get large. We anticipated that ® We had
4 this discussion. And before we go any deeper I want to
5 know if anybody is starting to have cold feet or second
6 thoughts on going with the big firm.
7 COMMISSIONER NEUGENT: I ' d like to comment on what
8 you just shared with us . And I know what I would do with
9 my personal life . If I were hiring an attorney, that
10 attorney wouldn' t have to come up to speed at my expense .
11 MR. SHILLINGER: Well, we have some arcane issues
12 here .
13 COMMISSIONER NEUGENT: Well, it ' s true. But me, if
14 I 'd be hiring an attorney I would not pay for that
15 attorney to have to learn. I would hire another attorney
16 who already had experience in that field. And I thought
17 that we were --
18 MS . HUTTON : They have experience in the field.
19 What 1,.hey have to come up to speed are our particular
20 issues .
21 R. SHILLINGER: Learning this case and the
22 background on this case and learning the particulars of
23 the County' s system. There ' s nobody out there who owns
24 that possession of knowledge other than in-house County
25 staff. We just don ' t have the Endangered Species Act
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1 experience .
2 COMMISSIONER NEUGENT: Okay.
3 R. SHILL INGER: So it ' s not like they' re learning
4 the Endangered Species Act . Remember, r ® Wheeler in
5 fact, one of the senior partners, helped write the
6 Endangered Species Act.
7 COMMISSIONER UGENT: Right . And I remember his
8 presentation very vividly.
9 R. SHILLINGER: Right. But when you ' re dealing
10 with a big firm part of what they do is they try and make
11 sure that you don' t, their client doesn' t have a claim
12 against them, so they practice defensive law, as well .
13 It ' s kind of like doctors ordering expert tests . They
14 want to make sure they cover every contingency so we
15 don' t come after and sue them later on. And that
16 practice gets expensive sometimes . So we ' re working with
17 them to try and minimize that situation and only pursue
18 the things that we really need to pursue and eliminate
19 what we can from the expenses .
20 COMMISSIONER NEUGENT : Well, he just led me to
21 believe in his presentation that he was up to speed on
22 everything . I guess I was incorrect in assuming that.
23 R. SHILLINGER: Well, there ' s a learning curve with
24 the particulars of the case and with the way we 've been
25 attempting to approach it. And just so you have that,
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1 the update, we had filed the motion to intervene last
2 November. Judge Moore denied it as moot when he accepted
3 the settlement agreement. We took an appeal of that
4 decision to the Eleventh Circuit . The federal
5 government, realizing that it was quite possible the
6 Eleventh Circuit could send it right back and say you
7 should have at least explained your reasons for denying
a their motion to intervene instead of denying it as moot
9 and that that process may consume some time, the federal
10 government asked for the Eleventh Circuit to relinquish
11 jurisdiction temporarily so they could file a motion in
12 front of Judge Moore asking him, tell us how you would
13 have ruled, give us an indicative ruling on the County' s
14 motion to intervene . The Eleventh Circuit gave him that
15 opportunity. Judge Moore in August issued a substantive
16 ruling and said I would have denied it because the County
17 was untimely. The case has been going on for twenty
18 years, you knew about the proposed biological opinion in
19 April, and yet you waited until November. He fails to
�20 understand it wasn ' t finalized until after we moved to
21 intervene . And so that ' s part of the issues we ' re
22 raising on appeal . We have finished our appellate brief,
23 we have filed it . By the end of the month unless the
24 federal government gets extensions and the
251 environmentalists get extensions their briefs will be
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1 due . So we will have an opportunity to file a reply
2 brief.
3 And one of the questions that came up when we were
4 briefing this issue was what was the BOCC' s position on
5 making the existing injunction against the issuance of
6 flood insurance in endangered species habitat areas,
7 whether that was a preferred alternative to the
8 settlement agreement. I remember we had a discussion
9 earlier this year and we actually adopted a resolution
10 which called on Congress to change the Endangered Species
11 Act or to add language to the National Flood Insurance
12 Act that would say you' re not eligible for new
13 construction for flood insurance if you' re in critical
14 habitat for endangered species habitat . In conversations
15 with staff, s ® Hurley in particular, she wasn ' t fully
16 comfortable with us putting in writing in a pleading that
17 the Commission would actually prefer that the injunction
18 be made permanent or not. And so that ' s one of the
19 reasons that we wanted to have this closed session so in
20 the event the issue is teed up appropriately in future
21 pleadings we know what the County Commission' s comfort
22 level is and whether we can assert that position in the
23 pleadings .
24 MAYOR CARRUTHERS : And her reasoning is?
25 R® SHILaLaICER® Her reasoning was just from
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1 conversations with you. She wasn' t sure that you all
2 were fully on board. And we do get calls from property
3 owners from time to time who are stuck on the injunction
4 list who have been languishing and waiting to develop
5 their property® So she ' s got to deal with those people
6 and was concerned that if the County Commission had taken
7 a policy position and put it in writing and put it in a
B federal case pleading that we would actually prefer to
9 have the injunction that would --
10 MAYOR CARRUTHERS : Open us up to takings cases?
11 H® SHILLINGER: Not necessarily open you up to
12 takings cases, but just put you in an uncomfortable
13 position politically and administratively in dealing with
14 these property owners .
15 So I pose the question, because it ' s part of the
16 strategy for going forward so we can talk about it in the
17 context of our closed session, is this a position we
18 really want to take affirmatively on the record, or is it
19 one that we would prefer to remain silent on unless we
20 have to take a position?
21 COMMISSIONER NEUGENT: If I can add something to
22 that, as opposed to putting us in a takings position it
23 would actually put us in a better position because we ' re
24 not saying you can ' t build, we ' re just saying you can' t
25 get flood insurance, so we ' re in a better position.
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1 MR. SHILLINGER: Right, which was, the position
2 behind the resolution which we adopted in January of this
3 year was that, I mean, I think everybody had company to
4 that conclusion. It wasn' t a happy decision to make, but
5 it was kind of the lesser of two or three evils .
6 And so let ' s have a little discussion. If it ' s an
I appropriate time to take a position on that issue,
8 identifying preferred alternatives to the settlement
9 agreement, which we all have previously identified all of
10 the problems with it, am I on solid ground articulating
11, that the County through its Commission would rather have
1.2 us leave the injunction as it stands, make it permanent,
1_3 have it modified so it ' s not so wildly over-broad? I
3 4 think everybody acknowledges it ' s wildly over-broad, but
1.5 if you are in an endangered species habitat, critical
16 habitat, that you not be eligible for flood insurance,
1.7 that that would give us the best protection for defending
le against takings claims from those property owners, who
19 probably wouldn' t go through the expense of trying to
20 obtain permits .
21 COMMISSIONER NEUGENT: Bob, it could very well be it
:22 would be politically hot. There ' s no doubt about that.
23 However, when you ' re looking at it from a litigation
24 point of view as far as the number of dollars that it
25 would cost us, it would reduce, I think, the requests for
L..........
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1 permits to build clearly and it would also, I would
2 think, this is the question, would it not reduce the
3 value of that property if in fact they still brought you
4 into litigations on a takings case?
5 R. SHILLINGER: Yes . I would think that the, the
6 Property Appraiser is statutorily obligated to value the
7 property with a certain set of criteria, and one of them
8 is all land use restrictions that are on the property,
9 and I think as a result of the injunction the Property
10 Appraiser has seen that as a requirement that ' s been
11 imposed on these properties so he has, in my
12 understanding he has devalued properties that were
13 covered by the injunction because they' re not as
14 conducive to being built upon as they would be if they
15 were not covered by the injunction. So yes . I believe
16 that it would lower the value of those properties in an
17 appraiser' s sense, should they actually go through the
18 process, you know, be denied a permit, they'd be starting
19 from a lower starting point than they would be otherwise .
20 So coming back to my original premise --
21 MAYOR CARRUTHERS : Well, I think Commissioner
22 Wigington has a question.
23 R. SHILLINGER: Yes . Okay.
24 COMMISSIONER WIGINGTON: I had a question about the
25 FEMA injunction list that we use when we ' re considering
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whether to give a property an allocation or recommend
2 them for purchase . Not only is it in the recommendation
from staff, they tell us whether it ' s on the EE A
injunction list, but we openly talk about it®
MR. HILaLaIN ER c Right
COMMISSIONER I I T Nr So that doesn ' t play into
7 any kind of takings cases if we ' re considering that when
we ' re making a recommendation?
R® HILoLI ERm I think that ' s a recognition of a
10 regulation or an impact, condition on those properties
11 that are beyond your control because we haven' t been able
12 to solve that injunction® It ' s unposed by the federal
13 government . So I don' t think our discussing that
14 necessarily increases somebody' s strength in their
15 takings claim®
16 COMMISSIONER I IN TCJ ® Even if we say we prefer to
17 keep it in play?
18 MAYOR CARRUTHER Well, it ' s not, are we saying
19 that we prefer to keep it in play, or are you asking if
20 that is a bargaining chip in this whole process that we 'd
1 be comfortable with?
22 MR. HI LT ER® What I 'm asking is, are you
23 comfortable with us putting that in writing, that the
24 County would prefer that the injunction remains in place
25 as it is as opposed to this elaborate construct of the
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I settlement agreement?
2 MAYOR CARRUTHERS: Are those the only two options?
3 ® SHILLING ER: Well, the middle road is an
4 injunction like the one that ' s in place, albeit one
5 that ' s better defined to include properties that are
6 clearly critical habitat for endangered species ®
7 MAYOR CARRUTHERS : That sounds like a more
a reasonable ®
9 COMMISSIONER WIGTNGTON: And then our considering it
10 with what we consider when we ' re recommending allocation
11 or purchase is not going to create any kind of liability
12 on our part?
13 MR. SHILL INGER: I don' t think it ' s going to
14 increase our liability on it ® I mean, we ' re taking that
15 as a consideration in whether we make a decision on how
16 to address these people ® If they come to you, if someone
17 says, look, I don' t need federal flood insurance, I don' t
18 need a federal subsidized mortgage, then you might make a
19 different decision.
20 COMMISSIONER WIGINGTON: But we ' re actually now
21 possibly taking action where we would be involved in
22 encouraging that injunction or setting the criteria for
23 that injunction endorsing and supporting it?
24 MR. SHILLINGER: Right® You' re not adopting it as
25 your own regulation.
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1 MAYOR CARRUTHERS : Yeah, but we ' re still subject to
2 it .
°3 MR. SHILLINGER: Right .
4 COMMISSIONER NEUGENT: But they still have -- two
5 things . A, we ' re not telling the they can' t build, so
6 if there ' s a, this may not be the right words, but
7 there ' s an appeal process that they could still come to
B the County Commission requesting a permit for that
9 property and say I don' t need flood insurance .
10 MR. SHILLINGER: Right.
13. COMMISSIONER NEUGENT: And we 've had people come to
12 us and say that.
13 MR. SHILLINGER: And you may make that decision in
14 whether you ' re going to grant them administrative relief
1.5 or a beneficial use determination. You may say, you know
16 what, we see that liability issue coming. If they don ' t
3.7 really need that insurance then that taking may really be
1.8 foisted upon us by denying the the right to build.
1.19 COMMISSIONER NEUGENT: And isn' t that what this
20 injunction says? It doesn ' t say you can ' t build. it
23. just says that you can ' t get subsidized flood insurance .
22 MR. SHILLINGER: Yes . And then the follow-on to
23 that is you can' t get a federally subsidized mortgage
24 either . It makes it, the market conditions to build are
25 much harder if you' re on the list than if you' re not .
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1 And that ' s not a government regulation. It ' s a
2 government not subsidizing your development.
3 COMMISSIONER WIGINGTON: We ' re not the only place
4 that has an injunction list for endangered species?
5 R. SHILLINGER: I 'm not aware of another one.
6 MAYOR CARRUTHERS : Really?
7 COMMISSIONER WIGINGTON: Sc we ' re the only place
8 that has endangered species?
9 R. SHILLINGER: No. I 'm just saying I 'm not aware
10 of another one . There may be others . But this is a
11 relatively new development in endangered species law
12 where they would try and loop in the flood insurance.
13 And they' re trying to do that now in all of the coastal
14 communities with turtles . This is really the first case
15 that has gotten this far® Now, whether some of these
16 others that they've tried to do have reached these
17 similar injunctions, I 'm not aware of them. It ' s
18 possible .
19 COMMISSIONER UGENT : Are we not the only county in
20 the state that goes through a Rate of Growth Ordinance?
21 R. SHILLINGER: I don ' t believe so.
22 COMMISSIONER WIGINGTON: We did that, but this is
23 federal .
24 R. SHILLINGER® It was adopted, as I understand it,
25 by the administration commission back in 1992 and we did
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1 it in response to being found non-compliant.
2 COMMISSIONER WIGINGTON: But of the Federal
3 Endangered Species Act, we ' re the only ones subject to
4 not being able to subsidize federal flood insurance or
5 mortgage possibly because of endangered species?
6 R. SHILLINGER: Yes . As far as I know. There may
7 be others out there that I 'm not aware of, but we ' re the,
a as in many cases, we ' re at the tip of the spear on many
9 of these issues .
10 COMMISSIONER WIGINGTON: Well, and we ' re funding it
11 for every other community that comes along behind us .
12 MAYOR CARRUTHERS : How do we find out?
13 R. SHILLINGER: I can do some research. I haven' t
14 looked to see what the others are . I just haven' t become
15 aware of them.
16 COMMTSSIONER WIGIN GTE N: The injunction would not
17 cost us any more than it ' s already costing us . To
is implement this --
19 R. HILLINGER® Well, let me, to implement the
20 settlement agreement will cost us lots of money.
21 To get to the third point --
22 MAYOR CARRUTHERS : I saw Commissioner Murphy over
23 there writing a lot . Usually when she writes a lot she ' s
24 going to say something. Not this time? Okay.
25 R. SHILLINGER: Let me talk about the MOU, and then
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I we ' ll come back to the second question of what the BOCCIs
2 position is . This Draft MOU has been put together with
3 Growth Management staff, our outside counsel . And
4 there ' s a couple of points in it that I want to talk to
5 you about . Now, this is a starting point . We have not
6 shared this yet with the federal government, hasn' t been
7 shared yet with the environmentalists . This is our wish
8 list type of approach to it, so we want to make sure that
9 we ' re on good and solid ground, we have a comfort level
10 from our client before we go forward.
11 A couple of points that have proven controversial in
12 the past. One of the ®® before I get to that, the idea
13 behind the MOU is that it would replace the settlement
14 protocol that ' s set forth in the settlement agreement .
15 We would still incorporate some federal conditions into
16 the permits, we ' d identify them as such, we would have
17 the feds do more of the actual work, but it would, an
18 attempt to shield us from liability from any claim that
19 we were taking on the liability for incorporating the
20 Endangered Species Act conditions into our permits .
21 But one of the enforcement mechanisms was that if a
22 property owner had one of these conditions on their
23 permits and they violated the permit condition that if
24 they were found to be in violation that we would issue a
25 1316 Declaration. That ' s where we advise the National
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1 Flood Insurance Administrator that they should be removed
2 from eligibility for flood insurance . That ' s a pretty
3 heavy hammer to hold over a property owner to say you' re
going to be in default of your mortgage, the mortgage
company will be notified and they' ll probably start
foreclosure proceedings, et cetera, et cetera. And in
7 the past the question has been when do you make that 131
Declaration. In the downstairs enclosure content the
9 Board has given us direction that you didn ' t want us to
10 jump right into 1316 . you didn ' t want us to issue those
11 declarations as scan as the, you know, right off the bat.
12 you wanted at least to have some process . What we ' d like
13 to do in the context of this environmental permit
14 condition in the construct of these Endangered Species
15 Act issues is once they've been through Code Enforcement
16 and the hearing officer, the Special Magistrate, or if we
17 decide to take there to court, the judge, has said yes,
18 you ' re in violation, then we would issue it,
19 notwithstanding the fact that they may take an appeal of
20 his finding . We want to at least start that process
1 sooner because we think that that would encourage
22 compliance. That would be staff' s preference ® But if
2;', you' re not comfortable doing that, if you ' d rather give
24 the property owner a chance to go all of the way through
25 the appeals process, which can take years, then we can
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1 take out some of the language we have in here® But it ' s
2 our preference to include that as soon as the Special
3 Master finds the violation that part of the thing that,
4 in addition to ordering them to comply he authorizes
5 staff to send the 1316 Declaration to the Flood Insurance
6 Administrator®
7 MAYOR CARRUTHERS : I 'm not sure, how do you get
8 somebody to comply if they've ®®
R® SHILLINGER: Cleared endangered species habitat?
10 MAYOR CARRUTHERS : Yeah.
11 R® SHILLINGER: I guess they would replant®
12 MAYOR CARRUTHERS : With their house? What is
13 compliance at that point?
14 MR. SHILLINGER: That ' s a very good question.
1 5 Sometimes it ' s mitigation someplace else. Sometimes the
16 violation may be something not as dramatic as a complete
17 scarification of the lot or, you know, of that habitat.
18 Maybe they wanted to put a patio in or a swing set or
19 something like that that isn ' t as dramatic an
20 encroachment . What would happen typically is you would
2.1. when you ' re getting your permitting of your structure
22 under this construct and under the settlement agreement
23 was we 'd tell you where on the lot you could build and
24 where on your lot to leave alone ®
25 MAYOR CARRUTHERS : Or that you couldn' t build at all
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.......... I on your lot, right?
2 MR. SHILLINGER: If you hit the thresholds in Table
3 18, yes . But then you wouldn ' t have anything. Then if
4 they build anywhere there wouldn ' t be a permit violation.
5 But what they ' re expecting us to do is to follow along on
6 all these permits that are issued in these species focus
7 areas and make sure that people don' t expand their
a permitted development by going beyond that . So you' re
9 not going to stop the person that ' s going to go out and
10 clear-cut ® Sure, they deserve to have their flood
11 insurance yanked and their mortgage defaulted if they' re
12 just going to go out and clear-cut something that they' ve
13 been told, they' re on record, don' t clear this portion of
14 your property. So I don ' t think that their house is
15 going to pop up in an area that has been determined to be
16 not suitable for development . That ' s going to cause all
17 sorts of other problems, as well .
18 So that is one of the issue that is on here that has
19 been problematic . Again, when we brought the issue in
20 front of you and we asked out that approach with the
21 downstairs enclosures, and the history of downstairs
22 enclosures is, you know, the rules changed every year for
23 such a long time I think property owners legitimately
24 have a beef when they say, look, I 'm not sure just
25 getting to the Special Master is enough due process . I
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1 think it is, but I understand the argument that they
2 have . This would be a different construct because these
3 would be permits going forward, the rules are going to be
4 established, we would like to include that as one of our
5 enforcement tools and get FEMA and Fish and Wild ®® FEMA
6 particularly to sign off on it at least for this process,
7 for the Endangered Species Act, that they are going to
8 accept it and utilize that enforcement tool early on in
9 the process as opposed to waiting a year, two years ®
10 Heck, I 've got one appeal that ' s gone on ten years, but
11 that ' s in an extraordinary circumstance .
12 MAYOR CARRUTHERS : So in this case what you' re
13 asking us is whether you want to issue the 1316
14 immediately or give the some period of time in which to
15 come into compliance, whatever that may be?
16 R® SHILLINGER: Well, no, At the enforcement
17 level, at the trial court level ® I mean, it can be upon
18 finding of violation, it can be at the expiration of the
19 compliance date . That would probably be an appropriate
20 carrot to hang out there on a stick®
21 MAYOR CARRUTHERS : Right .
22 R. LLINGER: But not after the exhaustion of all
23 appeals and extraordinary appeals ® That would be my
24 preference ® But if I 'm not on solid ground in doing
25 that, please let me know®
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1 MAYOR CARRUTHERS : Commissioners?
2 R® SHILLINGER: Okay.
3 COMMISSIONER RICE: I see no problem with that ® But
4 you've got me pretty thoroughly confused, frankly®
5 MAYOR CARRUTHERS : Well, I was a little earlier
6 going to say this .
7 COMMISSIONER WIGINGTON: It ' s because it ' s so
8 unreasonable to begin with. You know, I just can ' t wrap
9 my head around our even having to face this ® So that ' s
10 the reason I kind of zone out on i ® I don ' t want to do
11 anything .
12 MAYOR CARRUTHERS : Because the reality on the ground
13 for people is really -- ,N
14 COMMISSIONER WIGINGTON: Well, it is ® Because part
15 of this means that we ' re going to be defending a lot of
16 lawsuits because people are really going to be backed
17 into a corner. It ' s going to be so expensive for them
18 that it ' s going to be worth their while to sue s ®
19 COMMISSIONER NEUGENT: Sue us for what?
20 COMMISSIONER WIGINGTON: Well, if we get pushed into
21 some of this, is what I was saying.
22 MR. SHILLINGER: It ' s going to be litigating over
23 the Code Enforcement procedure, which we ' re doing with
24 the downstairs enclosures on a pretty decent rate of
25 cases . You know, you've seen how contentious they can
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1 get . I would expect that we would see similar types of
2 appeals and people litigating those issues if they were
3 accused of violating the permit conditions ® But, you
4 know, if the permit condition is pretty clear and they
5 violated it, you know, they' re the wrongdoer .
6 MAYOR CARRUTHERS : No. We ' re the evildoer .
7 COMMISSIONER WIGINGTON : So the end word is you move
8 forward doing what?
9 MAYOR CAR RUT HERS : Was there something else in this
10 MOU?
11 R. SHILLINGER: Yeah. The other things, I just
12 wanted to point out some other points in there .
13 MAYOR CARRUTHERS : Can we keep this, by the way,
14 or ®®
COMMISSIONER IGINGTON ® No.
16 MAYOR CARRUTHERS : ®® do we have to turn this back
17 in to you?
18 MR. SHILLINGER: Yes . I would like to.
19 COMMISSIONER NEUGENT: So we get it for five
20 minutes?
21 MAYOR CARRUTHERS : Yeah. And we don' t really get to
22 read it .
23 COMMISSIONER RICH ® And we don ' t get a chance to
24 look at it.
25 COMMISSIONER WIGINGTON : And the dollar amounts have
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1. xxxxx on it.
2 MR. SHILLINGER: And that ' s one of the points I
3 wanted to talk to you about . In constructing this, this
4 is seen as an alternative to the settlement agreement,
5 and Christine has told me that if we get to implement
6 this our costs really aren' t going to be that much more,
7 appreciably more in the administration side of it® We
a may end up having to deal with the appeals . We ' re going
9 to end up dealing with those anyway® But if they accept
10 this MOU or something close to this, and again, this is
2.1 just a starting point, we haven ' t shared it with them,
the dollar figures that Christine thinks that her, she
13 wouldn' t be asking for money. And so that ' s part of the
14 selling point for this is if you want to do something
1,115 more along the settlement agreement line that you
1.6 constructed we ' re going to be looking to you for some
17 financial assistance . We ' d be much more willing to
18 implement that if we were getting money, but here ' s the
19 cheap alternative that ' s something that we think is
20 consistent with your obligations under the litigation and
21 your obligations under the law.
22 COMMISSIONER NEUGENT: And, Bob, is this a, within
23 this MOU is the request, the first topic that we talked
24 about as far as supporting a permanent injunction?
........ 25 MR. SHILLINGER: No. This is not in here.
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1 COMMISSIONER NEUGENT: Well, the MOU as it ' s
2 written, is it going to save us a lot of administrative
3 headaches down the road?
4 COMMISSIONER WIGINGTON: A few®
5 R. SHILLINGER: It looks like it will save us the
6 administrative headaches in making the permit
7 determinations .
8 COMMISSIONER UGENT: Well, we ' re fixing to spend,
9 based upon your initial comments and request we ' re fixing
10 to spend, we ' ll be in the $400, 000 range on expenditures
11 here shortly. I don' t see a light at the end of the
12 tunnel yet . And so how much are we going to spend and is
13 it going to be worth the pursuit in spending that money
14 based upon some long-term payout?
15 MAYOR CARRUTHERS : Well, don' t forget that the
16 option is if we accepted the settlement agreement what
17 was it, 400, 000 the first year and 200, 000 for every year
18 after that in perpetuity?
19 COMMISSIONER NEUGENT : Right. But I can what we ' re
20 doing has got to save us some money? That ' s my question
21 to you.
22 MAYOR CARRUTHERS : It sounds like that ' s what you' re
23 saying that this MOU will do.
24 MR. SHILLINGER: That ' s what it ' s designed to do is
25 to lighten the administrative burden so that Christine
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1 won' t have that initial $400, 000 cost and those $200, 000
2 recurring costs .
3 COMMISSIONER WIGINGTON : Couldn ' t this be Plan B if
4 we just say keep the injunction in place?
5 MR. SHILLINGER: Well, keeping the injunction in
6 place is going to, that ' s not going to be a settlement
7 between us and the federal government . That would be
8 something that we would compel to happen in the court
9 system. So if we ' re going to try and negotiate a
10 settlement at first, which is generally the cheaper way
11 to get things done is to negotiate a settlement as to
12 force them to, you know, force-feeding them something, an
13 outcome through litigation, that ' s why you would have an
14 MOU .
15 COMMISSIONER NEUGENT: I thought the permanent
16 injunction was a carrot that you were going to offer them
17 that would eliminate all of this other stuff.
18 MAYOR CARRUTHERS : I thought the permanent
19 injunction was an addition to get them to accept this
20 instead of the settlement.
21 MR. SHILLINGER: No. The permanent injunction issue
22 is in the course of the litigation one of the questions
23 that the court will be asked to decide was whether the
24 permanent injunction was a reasonable alternative that
25 was preferable to this elaborate construct that is both
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1 hard to administer and expensive to administer and shifts
2 the liability from the federal government onto the local
3 government .
4 COMMISSIONER NEUGENT: Right .
5 R. SHILLINGER: When none of us would have any of
6 that liability if you just left the injunction in place,
7 and we think the statutes would support doing that® and
8 so we would ask the court to just make that injunction
9 permanent as a preferred alternative ® The
10 environmentalists would love that . They've just given up
11 after twenty years of asking for a permanent injunction.
12 They' re tired of this case, too. And the federal
13 government has steadfastly refused, they don' t believe
14 that their statutes authorize --
15 COMMISSIONER NEUGENT : FEMA refused to do that .
16 MR. SHILLINGER: Yes .
17 COMMISSIONER NEUGENT: Because we discussed this
18 with them a couple of years ago.
19 R. SHILLINGER: Absolutely.
20 MAYOR CARRUTHERS : Why? by did FEMA refuse?
21 R. SHILLINGER: FEMA believes that under the
22 National Flood Insurance Act that they are obligated to
23 provide insurance to eligible communities wherever --
24 COMMISSIONER WIGINGTON: Back on first base .
25 MR. SHILLINGER: And there ' s an exception in the
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1 National Flood Insurance Act for like the Red River flood
2 zone or something, so unless it ' s specifically written in
3 there --
4 COMMISSIONER WIGINGTON: What ' s special about the
5 Red River?
6 MAYOR CARRUTHERS : There ' s a song about it .
7 R. SHILLING ER: And I may have the river wrong, but
8 there is some zone that ' s specifically written into the
9 National Flood Insurance Act, some area that is by act of
10 Congress ineligible .
11 COMMISSIONER WIGIN GTE ON : Okay.
12 MR. SHILL INGER: They see that as indication that
13 everywhere else that it ' s potential to have it they must
14 offer it as long as you have a flood plain ordinance .
15 COMMISSIONER NEUGENT: And you' re in a sensitive
16 habitat .
17 COMMISSIONER WIGINGTON : I just can' t imagine them
18 picking on anybody but us .
19 MR. SHILLINGER: Well, they' ve been put in this
20 position by the environmentalists pushing them saying the
21 Endangered Species Act prohibits you from issuing flood
22 insurance .
23 COMMISSIONER NEUGENT : But they have excluded people
24 from national flood insurance in recurring zones of
25 floods and --
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I R. SHILLINGER: And if you' re a non-participating
2 community, a community decides not to participate.
3 COMMISSIONER NEUGENT: It ' s on a voluntary basis .
4 But again it would seem to me that the least amount of
5 administration and everything if that was a permanent
6 injunction and FEMA ought to stand up to what the lawsuit
7 was all about originally anyway.
8 MR. SHILLINGER: Well, they haven ' t, and so the only
9 way to get them to do that is either to change the law to
10 give them the direction or to have a court tell them that
11 they can do that and the court order the to do that.
12 And so that would be --
13 COMMISSIONER NEUGENT: If we made that request would
14 that further insulate us from what they've asked us to
15 do?
16 MR. SHILLINGERz If we made the request to make the
17 injunction permanent .
18 COMMISSIONER NEUGENT: Permanent . And then, so then
19 it would be up to a judge?
20 MR. SHILLINGER: Right . The permanency of the
21 injunction would be an issue from the judge . It would be
22 issued by the judge . FEMA has made it clear they don' t
23 believe that they can do that so they' re not going to do
24 that .
25 COMMISSIONER NEUGENT : So is it fair for me to say
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I that the only reason we wouldn' t take that position is
2 because it ' s so politically hot?
3 R. SHILLINGER: Yes .
4 COMMISSIONER WIGINGTON: That, and they wouldn' t
5 agree to it.
6 MAYOR CARRUTHERS : Well, that won' t get us anywhere,
I anyway.
8 COMMISSIONER WICI NGTON: That ' s not an option for a
9 settlement.
10 MAYOR CARRUTHERS : Well, what he ' s saying is FEMA
11 won' t --
12 MR. SHILLINGER: It ' s not an option for settlement .
13 It' s an option in the litigation. Understand that the
14 reason we can have a closed session is because we ' re in
15 litigation and we ' re trying articulate a position in
16 front of the court but at the same time we ' re also trying
17 to see if there ' s a way to settle this case . This is
18 part of the settlement options . The discussion of
19 whether we should make the injunction permanent or not is
20 a position that we would like to be able to articulate in
21 the litigation.
22 COMMISSIONER NEUGENT : And I don' t think that
23 question got answered when you threw it --
24 MR. SHILLINGER: Through the MOU . But there were
z 5 some questions about this, so I wanted to make sure
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1 that --
2 MS . UTTON: What would happen with respect to the
3 biological opinion regulations that they carve and gave
that presentation to us about? I mean, that ' s a part of
5 this, 'too, right?
R. SHILLING ER: Right . That ' s the settlement
7 agreement. This MOU is intended as a work-around of that
settlement agreement so it wouldn' t be as onerous on us .
COMMISSIONER RICE: It would be including us in the
10 process .
11 MR. SHI I R: It would be including us in the
12 process, whereas the settlement agreement had been
13 imposed on us and told that this is how you will do it .
14 MAYOR CARRUTHERS : Okay. So I see sort of three
15 possible scenarios right now. One is that if for some
16 reason we are forced to lure with the settlement
17 agreement .
18 MR. SHILLI CER: We just roll over, let ' s cut off
19 the bills and let ' s get on with it.
20 COMMISSIONER WIGINCTC : That ' s not an option.
21 MAYOR CARRUTHERS : The second is we go through
22 litigation and part of that litigation is our .request
23 that the injunction become permanent.
24 R. SHI LING R: Right .
25 MAYOR CARRUTHERS : The third is that we don ' t
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1 complete the litigation and instead we have this MOU as
2 our new settlement in place of the settlement agreement .
3 MR. SHILLINGER: Right. Those are the three issues
4 that are at play here.
5 COMMISSIONER WIGINGTON : Which I don' t love, either .
6 It ' s better than the --
7 COMMISSIONER MURPHY: I 'm getting a headache .
8 R. GASTESI : Bob, is it inappropriate for you and
9 Doug or somebody from the firm to visit each of us and
10 explain it?
11 MR. SHILLINGER: That would be appropriate .
12 R. GASTESI : Because there ' s some stuff in here
13 that ' s --
14 MR. SHILL INGER: And when we do it in that format
15 then I could have Christine with me, as well, where we ' re
16 limited under the Sunshine Law for who can participate in
17 a closed session.
18 COMMISSIONER WIGINGTON: But I think we have enough
19 consensus of we don' t, we ' re not comfortable with
20 anything right now, I don' t think.
21 R. SHILLINGER: And I 'd be comfortable letting you
22 keep it as long as I had your understanding that it
23 wouldn ' t get --
24 COMMISSIONER WIGINGTON : I ' ll give it back to you.
25 S . HUTTON: by don' t you get them back and then
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............ I when you go to visit with them like send it to the the
2 day before so they can look it over before they meet with
3 you?
4 MAYOR CARRUTHERS : I do like Section V. 5 that
5 basically says that we ' re all exempt from any takings
6 claims .
7 R. SHILLING ER: Yeah. That was language that we
8 put in there .
9 COMMISSIONER UGENT: And, Bob, just to emphasize
10 that point, and maybe Suzanne or maybe you know this
11 number, how much money have we spent over the last twenty
12 years on takings cases?
13 R. SHILL1NGER: I don' t have that number .
14 S . HUTTON: Millions . Absolutely. I mean, just
15 that one case alone that we settled, Shadek.
16 COMMISSIONER UGENT: That was six million dollars
17 right there .
18 MR. SHILLINGER: Right . I mean, Collins was over a
19 million in defense costs . So yeah, I mean, I would think
20 that if we went back and looked for twenty years you
21 could probably get that number up around twenty million.
22 MAYOR CARRUTHERS : So today you mentioned three
23 things ® We still haven' t covered your middle ®®
R. SHILLINGER: The middle point is are you
25 comfortable with us asserting in public that the
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I injunction or some modified version of the injunction is
2 preferable to the settlement agreement?
3 COMMISSIONER WIGINGTON: I think the injunction is
4 more palatable to property owners and taxpayers than some
5 of these alternatives because it doesn' t really relieve
6 the property owner that ' s going to be affected as much as
7 we thought it was going to, I mean, as the goal of the
8 lawsuit was, but also I think the cost is going to be
9 less . So it may be more palatable to people than it
10 actually is to us . It just depends on --
11 R. SHILLINGER: To which people?
12 COMMISSIONER WIGINGTON : Well, the taxpayers .
13 R. SHILLINGER: The taxpayer at large, yes . To the
14 person that ' s sitting there --
15 COMMISSIONER WIGINGTON: But I don ' t know that
16 they' re any better off in this position than they would
17 be on the injunction list because they' re not going to be
18 able to get flood insurance either way.
19 MR. SHILLINGER: Well, no, no. They would be able
20 to get flood insurance if they accepted the permit
21 conditions and abided by them. You know, there ' s a
22 limited development on the property.
23 COMMISSIONER NEUGENT : Essentially what he ' s saying,
24 just sort of like what we are doing with downstairs
25 enclosures, that we let it go for so long, and now it ' s
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1 still a festering sore .
2 R. SHILLINGER: Yes . And then the injunction
3 covered at the beginning roughly fifty thousand parcels .
4 1 think the number was 48, 000-and-change . The universe
5 of affected parcels under the settlement agreement was
6 smaller. I think it was in the 20, 000 range . We think
7 that number could be reduced even further through some,
a you know, they basically just took Tier 1 property or
9 real critical habitat, which is the term that ' s used
10 under the statute as opposed to the species focus area,
11 which is potential habitat, that they used in the
12 settlement agreement . The settlement agreement' s broader
13 than what we think the statute allows the to be. So as
14 we reduce that pool of affected properties, then the pool
15 of owners that are affected by it obviously goes down, as
16 well .
17 COMMISSIONER WIGINGTON : Well, and it could be less
18 than that, because there are lots that are in my
19 condominium on Stock Island that are on the FEMA
20 injunction list . There ' s not one speck of habitat . And
21 they don ' t care to get off the list .
22 R. SHILLING ER: Because they ' re not going to put up
23 additional construction. If they do redo, they have the
24 limits involved.
25 COMMISSIONER WIGINGTON: Yes . So I think that the
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1 number could be far less than that.
2 COMMISSIONER NEUGENT: Well, I 'm not exactly sure if
3 1 interpreted Commissioner Wigington ' s comments
4 correctly, but if I did, I think that for the taxpayers
5 and trying to stay away from future, or reduce our
6 exposure and liability to litigation, that the permanent
7 injunction request, if that were to happen, would be the
8 easiest route to go.
9 MAYOR CARR UTTER S : I think that your last qualifier,
10 if that were to happen, is the issue, because we won ' t
11 even know if that is going to be something that ' s in play
12 until we move down the litigation road a whole lot
13 farther.
14 R. SHILLINGER: But we 'd like to be able to put
15 that in the brief and say, look, they failed to consider
16 this more rational alternative . So that ' s why if you' re
17 comfortable with us putting that in writing we 'd like to
18 be able to argue that .
19 COMMISSIONER NEUGENT: Because the whole premise of
20 this lawsuit from the beginning was that they were
21 violating the Endangered Species Act by giving flood
22 insurance to these sensitive habitats .
23 MR. SHILLINGER: Right . And it ' s the administration
24 of the lawsuit . They've of a list of data from the
Property Appraiser that contained parcels on it that
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1 doesn ' t have endangered species habitat that ' s led to the
2 overly-broad nature of the injunction, the properties
3 that you mentioned that are on the list even though they
4 were fully built out.
5 COMMISSIONER WIGINGTON: Yeah. They don' t care .
6 MAYOR CARRUTHE EIS : Well, am I sensing a consensus
7 that we are comfortable with you putting that in the
8 brief?
9 COMMISSIONER WIGINGTON : Hmm-hmm.
10 COMMISSIONER NEUGENT : Yeah.
11 MR. SHILLINGER: Okay. Thank you. What I ' ll do is
12 if you don ' t mind I ' ll collect these and then --
13 MAYOR CARRUTHERS : Have you had all three of your
14 questions answered?
15 MR. SHILLINGER: Yes . And then I will schedule some
16 sessions with you. We may have Doug or Pat appear by
17 telephone just so we save the travel costs of bringing
18 them down, but we ' ll schedule some individual sessions
19 with you so we can walk our way through the MOU in more
20 detail .
21 MS . HUTTON: So are we ready to terminate the closed
22 session?
23 FOR CARRUTHERS : Yes . We are terminating the
24 closed session.
25 (Proceedings concluded at 2 : 20 p.m. )
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C E R T I F I C A T E
2 STATE OF FLORIDA
3 COUNTY OF MONROE
4 1, Susan L. McTaggart, Court Reporter and Notary
5 Public, State of Florida at Large, do hereby certify that
6 1 was authorized to and did report by stenotype the
7 proceedings in the above-entitled matter, and that the
8 transcript is a true record of said proceedings .
9 Dated this 3rd day of November, 2011 .
10
11
Susan L. McTaggart, Court Reporter
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DRAFT
10/18/2011
DRAFT
MEMORANDUM OF UNDERSTANDING
between
UNITED STATES DEPARTMENT OF HOMELAND SECURITY,
FEDERAL EMERGENCY MANAGEMENT AGENCY
and
UNITED STATES DEPARTME 6,7VICE
RIOR,
UNITED STATES FISH AND LIF
MONROE CO AV FLORIDA.
This Memorandum of Understan ' made tered into by and between
the United States Departakent of Ho S F ergency Management
Agency(FEMA}, t States ent 'or, ,'sh and Wildlife Service
(Service), and Co lorida( C 711 er referred to collectively
as"the Partners", "Party` 'vidually." "
I. 'E
se of U is blish -ntain a framework of cooperation
,the Partners acti conserve protected animal and plant species and their
native t in Monroa ty, It is the intent of the Partners to identify and
create rtwwities ork to to help pre-empt the need to list species under
the Endang 'es A 'A),to facilitate FEMA's compliance with the ESA and
to foster the r of already listed.
III. DEFINITIO
Definitions of terms used in this MOU are provided in Appendix A.
M. INTRODUCTION
Conserving protected species and their habitats is a high priority for the Partners. Key
purposes of the ESA include providing a program for conserving federally listed plant
a and animal species and providing a means of conserving the ecosystems upon which they
depend. Identifying and taking steps that contribute to delisting threatened and
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endangered species,or that pre-empt the need to list additional species under the ESA is
important to the Partners because such species are critical components of biodiversity and
often are indicators of healthy,functioning ecosystems which provide critical ecological,
social,and economic functions and services upon which humans depend.
The Partners believe that a strong partnership to encourage conservation efforts will
contribute to the recovery and delisting of endangered or threatened species and prevent
the need for listing many other species under the ESA. Additionally, encouraging such
conservation partnership efforts will help ensure that the purposes of endangered species
laws and policies are met. Each Party to this MOU has an lished role and processes
regarding conservation of protected species, summanz Mows:
A. FEMA
d.
The Flood Disaster Protection Act of 1973 .C.4002){ 73 Act)requires
property owners to purchase flood ins °a condition of any Federal or
federally related financial assistance to a `' r improve land ors that are
located in areas identified as having special a 1973 A' hibits
Federal officers or agencies fro wing ce for acquis or
construction in areas identified special fl ands unless the structure is
covered by flood insurance(42 Secti (a)of the 1973 Act prohibits
Federal officers or agencies from orm of t, guaranty,insurance,
payment,rebate,sub 'saster cc lea t f uisition or construction
within the Special Areas 'ci nng communities(42
U.S.C.4106). e o I as T. Stafford Disaster
Relief and Emer sis Act(42 . 5121-520G) (Stafford Act),this
prohibition applies as . The nal Flood Insurance Program(NFIP)
reduces tbrriak of fl g and local governments to adopt and
enfor r NFM floodplam cement o a condition of making NFIP flood
insurance available in the co. 'ty.
Under Section 7(ax1)of the ESA, is required,in consultation with and with the
assistance of the Service,to utilize its orities in furtherance of ESA purposes by
carrying out pograms for the'cronservation of Federally listed endangered and threatened
species. In conduciing its conservation programs, FEMA meets this requirement when
implementing its florid ins=6 rince program authorized by Congress. FEMA meets its
Section 7(a)(1)responsibilffies by insuring that,where appropriate,the agency's
programs are carried out with participation from the Service,the appropriate State Fish
and Wildlife Agencies, and other conservation entities.
Also under 7(ax2)of the ESA,FEMA is required to ensure,in consultation with the
Service,that any action FEMA authorizes,funds,or carries out is not likely to jeopardize
the continued existence of any listed species or result in the destruction or adverse
modification of designated critical habitat. To this end,FEMA consults with the Service
or NOAA Fisheries when FEMA flood insurance may be provided to property owners for
implementing development for which a"may affect"determination has been made. In
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addition, FEMA may adopt such Reasonable and Prudent Alternatives to a proposed
action as are recommended by the Service in consultation pursuant to Section 7(a)(2). To
this end,FEMA works with the Partners to identify opportunities and procedures to
implement timely and efficient conservation alternatives,measures and practices.
B. THE SERVICE
The Service,under the direction of the Secretary of the Interior,has regulatory and
statutory responsibility for administering the ESA. The Service,the National Marine
Fisheries Service(NOAA Fisheries),and the National Oceanic and Atmospheric
Administration(NOAA),share responsibility for implementing the ESA. Generally,
NOAA Fisheries manages marine and anadromous spades listed under the ESA,whereas
the Service manages land and freshwater species. To carry out its responsibility for
species and habitat conservation,the Service engages in species and habitat conservation
activities on Service managed lands and facilities,guides the development of recovery
plans for federally listed species,and works in partnership with other Federal agencies,
State and local governments,Tribes, and private landowners/managers. By offering
technical and financial assistance,the Service encourages and facilitates actions that
contribute to the conservation of endangered or gmtened species,including the
ecosystems upon which they deoW. The purpose of these efforts is to remove threats to
species so they no longer need protection under the ESA and can be delisted. The
Service also offers technical and financial assistance to support the conservation of
species that are candidates for listing,or likely to become candidates in the
near future. Ake aspect of the Service's work is to encourage and facilitate
voluntary,pro to reduce or remove threats facing such species
potentially makin to list them under the ESA.
`VrA
The s,4.N, jMftfiTed
a ( �;�
(BO)for FEMA's administration of the National
Florw parh communities in Monroe County,Florida,which
n ,lly m c with the Court for the Southern District of Florida,
{F ey Deer et a. C gate et a1-No.90-CV-10037)on April 30,2010. The
BO i a Reasonabl ternative(RPA)to FEMA's proposed action in order to
avoid j to listed itat. This BO,together with an amended RPA,was
later adop condition o lement Agreement in Florida Key Deer et al. v. W. Craig
Fugate et al., -CV-100 ncerning FEMA's obligations under the ESA.Because the
Settienaeut tow once County was not a party,fails to recognize the County's
multiple programs to species and their habitat,and seeks to impose additional
burdens upon the Coun OU will be implemented as an alternative to the Settlement
Agreement.
C. THE COUNTY
The County is a political subdivision of the State of Florida that lies on the southern tip of
Florida,which includes a mainland portion unaffected by this MOU and an island chain
known as the Florida Keys. Within Monroe County,there are five municipalities(the
cities of Key Colony Beach,Key West, Layton, and Marathon, as well as the Village of
Islamorada)plus substantial land masses that are located in the unincorporated areas of
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the County. Under Florida law,each of the municipalities has regulatory jurisdiction
over land use matters regarding real property which falls within their respective territorial
limits. §163.3171(1),Florida Statutes. The County only has regulatory jurisdiction over
land use matters regarding property located in the unincorporated areas. §163.3171(2).
The County and its five municipalities are considered to be separate communities under
the NFIP. The five municipalities are not parties to this MOU nor does the County have
the authority to compel their adherence to its provisions.
In an effort to foster sustainable,quality development in the County,while preserving
and promoting stewardship of the County's fragile environment and unique and diverse
island communities,the County has adopted a number of ordinances to achieve such
goals. For example, the County has adopted a Rate-of-Growth Ordinance that allocates a
limited number of permits each year for new residential dwelling units,as well as a Tier
System that encourages development in infill areas and discourages development within
environmentally sensitive areas.,M Monroe County,Code of Ordinances,Part II,Ch.
138. In addition,a number of other State statutes and regulations govern land use and
management in the Florida Keys,and serve to limit development and protect sensitive
environmental resources. See.e.g..Fla. Stat. §380.05 (governing areas of critical state
concern;Fla. Stat. §380.0552("The Florida Keys Area Protection Act');Fla.Admin.
Code chapter 28-20(Land Planning Regulations for the Florida Keys Area of Critical
State Concern—Monroe County). Additionally,as a condition of its participation in the
NFIP,the County has adopted a Floodplain Management Ordinance,the purpose of
which is"to promote the public health,safety and general welfare and to minimize public
and private losses due to flood conditions in specific areas. . . ."She, Monroe County,
Code of Ordinances,Part II,Ch. 122. The County has also assisted in the development of
the Big Pine Key-No Name Key Habitat Conservation Plan,which outlines a
conservation strategy designed to protect the habitat of the endangered Key deer,
endangered Lower Keys marsh rabbit,and threatened eastern indigo snake,while
allowing limited residential,commercial,recreational, and municipal development on Big
Pine and No Name Keys.
IV ROLES AND RESPONSIBELITIES
This MOU commits the Partners to expand coordination and cooperation to ensure
successful efforts for the conservation of protected species and allows each Party to more
effectively meet its individual and collective obligations and priorities for conserving
protected species and their habitats. It is intended to be implemented as an equivalent
means for FEMA and the Service to carry out their obligations under the Settlement
Agreement and amended RPA so as not to impose undue burdens upon the County.
A. FEMA will:
1. Work with its Partners to minimize predation of protected species by exotic, wild,
feral, and domestic animals in Monroe County.
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2. Coordinate with its Partners to incorporate Service review recommendations as
conditions in development permits.
3. Coordinate with the County to revise the County's Flood Damage Prevention
Ordinances to ensure that County issued permits are consistent with all applicable
Federal laws,including but not limited to the Endangered Species Act.
4. Monitor the effectiveness of measures implementing its conservation plan for
Monroe County,
5. Inform landowners/managers of the opportunity 'cipate in landowner
incentive programs of the Service and States ropriate and consistent
with conservation planning and practice n.
6. Consider supporting implementatio ation designed to
directly benefit protected species habitats.
7. inform the County of the opportunity 've assurances gh
voluntary conservation a ants.
8. As appropriate,utilize Sta coon P e Service Recovery Plans,
and conservation strategies. th speci 1 .oritizing conservation
program impl tion in Co rr,
R V,
w,4
9. work wi Servi identify ties ge in more efficient
processes mpli ection 7consultation procedures.
10. uall ' abs 'thin the County for protected species
d •gist S 'ce,in accordance with the provisions
of the ESA, se m e County to be utilized during permit
'ew.
11. In ating and ing cal Habitat for protected species in the County,
take', unt unty's programs which also protect such Critical Habitat.
12.Cotes any declmition by the County that a property has been found by the
Code Compliance Special Magistrate,a trial court judge,or some other first level
hearing officer to be in violation of a permit condition imposed as a rmult of this
MOLT,the ESA,and other applicable provisions of law as satisfying the
reeluisets set forth in 44 CFR Part 73 and will withdraw the eligibility for
flood ins nwm of any structure on the declared property pursuant to its authority
under 42 U.S.C. §4023.
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B. THE COUNTY will:
1. Consider adoption of an ordinance that requires adherence to all applicable
Federal laws,including but not limited to the ESA.
2. Continue to use its best efforts to protect species and to foster sustainable,quality
development in the County,while preserving and promoting stewardship of the
County's fragile environment and unique and diverse island communities.
3. Work with property owners to minimize predation tested species by exotic,
wild, feral,and domestic animals in incorpora County.
4. Assist FEMA and the Service in infornung non—Federal Iandowners of their
responsibilities under the ESA.
S. Reference federd requirements including the Service's recommended project
modifications into the County's permits for proposed development that-may
adversdy affect wed or endangered species". The County will delineate
time requirements as Federally imposed conditions so the property owner is put
on notice ofhra/her obligations imposed by the Service under the ESA.
6. Issue to FEMA a declaration under§1316 of the National Flood Insurance Act of
1968 and 44 CFR Part 73 for any properly found by an administrative tnUnal
and/or court of competent jurisdiction to be in violation of a permit condition
imposed as a result of this MOU,the ESA,and other applicable provisions of law.
C. THE SERVICE will:
1. Provide information and updates to its Partners regarding consultation procedures
under Section 7 of the ESA, species conservation planning and permitting under
Section 10 of the ESA,and other the Service cooperative conservation programs
and grants.
2. Provide the County with assessment guides by which to evaluate the effects of
development projects on the nine federally listed species identified in the
Service's April 30,2010 BO as part of its consultation process with FEMA.
3. Collaborate with the Partners to develop effective strategies to minimize
deleterious impacts,such as exotic species and predation,to federally listed
species in Monroe County.
4. Explore opportunities with FEMA to increase the overall effectiveness of the
Section 7 consultation process between the Service and FEMA activities.
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Provide information regarding programs and practices that can contribute to
voluntary efforts by private and other non-Federal landowners to engage in
conservation for protected species.
5. Assist with timely development,review,and processing of voluntary conservation
agreements developed under Section 10 of the ESA.
6. Notify its Partners of changes that pertain to voluntary conservation agreements
under Section 10 of the ESA and other fish and wildlife cooperative conservation
programs-
7. Provide financial assistance to the County pursuant to Section 6 of the ESA for
purposes of implementing this MOU,in an amount of not less than$xxxxxx
annually.
D. THE PARTNERS will,as appropriate '
1. Identify opportunities,priorities,and is efit protected species,in
accordance with appli gulations
W
2. Share updated informatio the deve t and implementation of
conservation policies,pro v co n agreements,and practices
related to pro species eir h , This done through
coordi on,edu 'on,
3. Develop lem 9 tegically focus resources in a
coordinated to a the co ation of protected species and their
acilitate at e h Parry's conservation programs are
mplimen are n vertently in conflict.
5. P coordinat 'cal sistance to Iandowners and land managers to
facili nservati ctices that benefit protected species and their habitats.
6. Coordinate d establish information needed for voluntary
conservation eats.
7. Promote the use of assessment guides as an efficient and effective means of
administering the ESA.
8. Cooperatively develop protocols and evaluation procedures that result in
comparable data for assessing the effectiveness of conservation efforts for
protected species and their habitats and participate in efforts to share protocols
and other information to monitor adverse effects on protected species.
I 7
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9. Work cooperatively to incorporate federal requirements into the County's permits
and delineate those requirements as Federally imposed conditions so the property
owner is put on notice of his/her obligations imposed by the Service under the
ESA.
V. GENERAL PROVISIONS
1 This MOU takes effect upon the signatures of the Partners and remains in effect
for 13 years from the date of execution. This MOU may be extended or amended
upon written request of one of the Partners and the subsequent written
concurrences of the others. This MOU may be terminated by any party to this
agreement with a 60 day written notice to the other Partners.
2 This MOU is intended to be enforceable at law or equity,by any party against
another,its agencies and officers.
3 This MOU will be implemented as an alternative to the Settlement Agreement.
The implementation of this MOU,including the County's enactment of an
ordbui noe thmuugh this MOU,requires coordination and resources that the County
would not otherwise have to expand In consideration of the foregoing,and to
assist the County in meeting the ousts of these requirements,FEMA will provide
to the County$xxxxxx within six months of enactment of the ordinance
implementing this MOU and annually thereafter the recurring amount of
$xxxxxx through the year 2023,in the total amount of Sxxxxxx.
4 Except as explicitly provided herein,none of the information in this MOU shall
obligate the Partners to obligate or transfer any funds.
5 This MOU does not provide the basis for any regulatory takings claim by an
owner of property in Monroe County. The Partners agree,however,that the
County does not assume regulatory takings or other liability that may nonetheless
be found by a court to be the result of the requirements and application of the
ESA and/or this MOU.
VI. AGENCY CONTACTS
FEMA: (to be provided)
THE COUNTY: Monroe County Administrator, 1100 Simonton Street,Key West,
FL 33040(305)292-4441.
THE SERVICE: Assistant Director,Division of Endangered Species
VII. AUTHORITIES
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This MOU is entered into in accordance with the:
A. National Flood Insurance Act of 1968, as amended, and Flood Disaster Protection
Act of 1973, as amended(42 U.S.C. 4001 et seq.);
B. Chapter 125,Florida Statutes.
C. Endangered Species Act of 1973, as amended(16 U.S.C. 1531 et seq.)
D. Florida Key Deer v. W. Craig Fugate, et al, 90-CV-10037, and orders of the Court.
VM. APPROVAL
The undersigned Partners hereby agree to the terms & 'lions specified above.
-
Attest:Danny L.Kolhage, Clerk "� � For Mom unty BOCC,
B ,
•
Deputy Clerk per Carruthers,Mayor
, s
Nt
r DATE
r
DATE
DATE
Director,US Fish as sfe Service
DATE
°ADC.03MI OOD011-3MM6 v6
APPENDIX A.
DEFINITIONS
Conservation: As defined in the ESA,the terms"conserve,""conserving,"and
"conservation"mean"to use and the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the point at which the
measures provided pursuant to [the ESA] are no longer necessary. Such methods and
procedures include,but are not limited to,all actiAwsed with scientific
resources management such as research, census,lnt,habitat acquisition
and maintenance,propagation,live trapping, andn,and,in the
extraordinary case where population pressures wicosystem cannot be
otherwise relieved,may include regulated a1532.
Critical Habitat: As defined by the ESA," habitat"for a ed or endangered
species means"(i)the specific areas wi eographical area by the
species, at the time it is listed in accordance pro ns of sectt 33 of[the
ESA],on which are found those ical or bio 1(1)essen the
conservation of the species and 'ch may req 'al management
considerations or protection;and I areas ou the geographical area
occupied by the species at the time 1 ith the provisions of section
1533 of[the ESA] upo determina by th ch areas are essential for
the conservation o " 16 U.. §15
Protected speci that Coll to species at are listed as endangered
or threatened under SA.
Yol on a ents: eats for the conservation of species
'tat tha t on a vo basis. These include,but are not
lira , Safe H Candidate Conservation Agreements with
and Habitat lans developed under Section 10 of the ESA,and
other nservatio en eveloped voluntarily under various Federal or
State autho
Wildlife:A gen eludes aquatic and terrestrial,vertebrate and invertebrate
animal specyes. Th widely used to include fish and other aquatic animals,but
fish often are mentio larately so as to clarify that the term wildlife does not refer
solely to terrestrial animals.
�.r�4I7L°-09M4k 1-33193®T6 v6