Item A
AUG-30-01 13,41 FROM,MONROE COUNTY ATTY OFFICE 10,3052823516
PAGE
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BOARD OF COUNTY COMMISSIONERS
AGENDA IT!M SUMMARY
Meeting Date:
September 5, 2001
Division:
County Attorney
Bulk Item: Yes 0 No [I
AGENDA ITEM WORDING:
Attorney-client closed session with County Administrator Jim Roberts, land Use
Counsel Karen Cabanas and Hugh Morgan. The purpose of this meeting is to discuss
the case of Shadek v. Monroe County.
ITEM BACKGROUND:
PREVIOUS RELEVANT BOCC ACTION:
See above.
CONTRACT I AGREEMENT CHANGES:
STAFF RECOMMENDAnONS:
Approval
TOTAL COST:
COST TO COUNTY:
BUDGETED: Yes L.; No G
APPROVED BY:
County Attorney. OMB/PurchClsing 0 Risk Management n
DIVISION DIRECTOR APPROVAL:
ORICK
DOCUMENTAnON:
Included 0
To Follow 0
Not Required C
AGENDA ITEM It
A
Hugh J, Morgan
James 1. Hendrick
Robert Cintron
Derek V, Howard
LAW OFFICES
MORGAN & HENDRICK
317 Whitehead Street
Key West, Florida 33040
Telephone: (305) 296-5676
W, Curry Harris
(1907-1988)
Hilary U, Albury
(1920-1999)
November 29,2004
Mr. Danny Kolhage
Clerk of the Court
P. O. Box 1026
Key West, FL 33041
IN RE: Monroe County BOCC Transcript
Shadek vs. Monroe County
Dear Mr. Kolhage:
Enclosed please find a transcript from the executive session ofthe BOCC which was held on
September 5, 2001. That session was held to discuss matters in the above-referenced litigation.
Under the Government in the Sunshine Act, transcripts of an executive session are to be sealed
by the Clerk until such time as the litigation has concluded. Accordingly, the transcript can be unsealed
and placed in the public records.
Please file accordingly.
Please contact me if you should have any questions regarding this matter.
~~
Teresa Ross
Litigation Paralegal
tr
Enclosure
P,O, Box 1117, KEVWEST, FL 33041 * TELEPHONE 305 296-5676 * FACSIMILE 305 296-4331
E-MAIL ADDRESS:JHENDRICK@MORGANANDHENDRICK.COM
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MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CLOSED ATTORNEY-CLIENT SESSION
ORIGINAL
COMMISSIONERS:
8
MAYOR GEORGE NEUGENT
COMMISSIONER NORA A. WILLIAMS
COMMISSIONER DIXIE M. SPEHAR
COMMISSIONER MURRAY E. NELSON
COMMISSIONER CHARLES McCOY
9
ALSO PRESENT:
10
11
KAREN CABANAS, ESQUIRE
HUGH J. MORGAN, ESQUIRE
JAMES L. ROBERTS, COUNTY ADMINISTRATOR
12
13
14
TRANSCRIPT OF PROCEEDINGS
15
16 PROCEEDINGS before the Monroe County Board
17 of County Commissioners, at 1200 Truman Avenue, Key
18 West, Monroe County, Florida, on the 5th day of
19 September 2001, commencing at approximately 4:08
20 p.m., as reported by Susan L. McTaggart, Court
21 Reporter and Notary Public, State of Florida at
22 Large.
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PRO C E E DIN G S
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MAYOR NEUGENT: We'll call this meeting to order,
3
and I'll immediately turn it over to Ms. Cabanas.
4
MS. CABANAS: Well, thank you.
5
MR. ROBERTS: Let's just be sure, in the past
6
we've done some formalities just to announce that this
7
is an appropriately advertised executive session of
8
the County Commission for the purpose of receiving
9
legal information and recommendations concerning the
10
Shadek case, and in attendance we have the County
11
Commission, the County Administrator, and two County
12
Attorneys who are representing us on the Shadek case,
13
Mr. Morgan and Ms. Cabanas.
MR. MORGAN: Very well done.
MAYOR NEUGENT: Duly noted.
MS. CABANAS: Now, I assume everyone is familiar
with the Shadek ruling that we have. Does anyone need
any background on that?
COMMISSIONER McCOY: I would suggest you recite
it, maybe in just two minutes or so.
MS. CABANAS: Okay. It's an inverse condemnation
case which stems from the major development moratorium
from the 1980s when the North Key Largo species first
got listed. The County enacted a major development
moratorium. Any property over five acres was on a
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complete freeze, less some very limited exceptions.
2
That was to give the County time to get with Fish &
3
Wildlife and draft a habitat conservation plan.
4
That, between the time the moratoria were in
5
effect and the end of what is the takings period for
6
this case all of the property was essentially bought
7
up by either the state or the federal government;
8
therefore, the HCP never got adopted because at that
9
point there was no need for one.
10
So this property was known as Ocean Forest. It
11
was originally about 560 acres in two parcels. One
side was bought by the federal government, one side
was bought by the state. We got the portion that was
bought by the federal government. That portion of the
property was thrown out for statute of limitations
because they had bought that earlier than the state
parcel. So we are down to 140 acres.
And Judge Garcia, after about a five-day trial
that we had, ruled in the plaintiffs' favor, agreed
with basically their entire theory of the case that
they had, in fact, been denied any use whatsoever of
the property for about an eight-year period.
Based on the ruling that we have now, the
unimpaired value of the property is roughly $6 million
and the impaired value is 141,000, meaning that
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without the moratorium it would have been worth six
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million, under the moratorium he believes it was worth
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141,000.
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MR. MORGAN: And we did bifurcate it.
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MS. CABANAS: We did bifurcate. And inverse
6
condemnation cases are one of the few where you can do
7
what's called bifurcate and have a separate trial on
8
liability and then if you are found liable you go into
9
to the second phase and have, we are entitled to a
10
jury trial on damages.
So we have had the liability
11
phase of the trial. We were found liable for the
12
eight-year temporary taking period, and now we are
13
proceeding with the damages phase.
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And as part of that the judge ordered, as
15
standard is to do, ordered mediation between the
16
parties, and mediation is presently scheduled for the
17
20th of this month. And what we're here today for is
to see if the County is at all willing to come up with
some type of acceptable settlement number based on the
ruling we have now and our chances on appeal.
Of
course there's, we feel that there's some very good
issues to appeal, but of course there's never any
guarantee that that's going to be successful.
But we
do have some good issues.
This is pretty cutting-edge law, though, and the
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courts are allover the place on these cases. The
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Supreme Court did take up another inverse condemnation
3
case this term that should be coming up by the end of
4
the year that is an actual moratorium case, and
5
whether or not that'll be favorable to us is yet to be
6
seen.
7
But we're here today to, one, get you to
8
designate a County representative to be present at the
9
mediation who has full settlement authority up to
10
whatever, if any, settlement number you're willing to
11
agree to.
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MR. MORGAN: I think you need to tell them about
13
why we think Judge Garcia erred and what our issues on
14
appeal would be to give them an idea of the strength
15
of the case so they can factor that into the number.
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MS. CABANAS: Okay.
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MR. ROBERTS: Let's also identify, my
understanding in talking with Jim Hendrick 1S that we
do not have an opportunity to appeal until after the
second part of the bifurcated case takes place.
MS. CABANAS: Correct.
MR. MORGAN: Right.
MR. ROBERTS: So that we are going to go through
this mediation and trial if it's not settled before we
get to the issues Karen's about to discuss, which
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is
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MS. CABANAS: Yes.
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MR. ROBERTS: -- the errors we believe Judge
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Garcia made.
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MS. CABANAS: The main issues on appeal would be,
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for one, it's a doctrine referred to as ripeness,
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which means whether or not your case is ripe for
8
judicial review. And there are two parts to that, one
9
being, it's out of a U.S. Supreme Court case, the
10
first prong of that is that you have to have received
11
a final decision from the local government as to what
12
development would have been allowed on the property,
13
and we don't believe that they, in fact, obtained a
14
final judgment.
For one, every denial that they
15
received was at staff level. They never went to the
16
Planning Commission, they never went to the County
17
Commission on any issue, and there is some law, not
18
directly on point, but it's out there, that only the
19
County Commission is authorized to make a final
20
decision on behalf of the County.
I mean, you can't
just go in to staff and get an opinion and that be
binding on you and then go to court. You have to go
through your administrative remedies.
And that's the second part of ripeness, lS
exhaustion of your administrative remedies. And as
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you probably know, we have in the code two of those
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administrative remedies, beneficial use and vested
3
rights. Beneficial use that was in effect at that
4
time was thrown out by the Third District as an
5
unacceptable remedy. So we're left with the vested
6
rights.
7
They did file, back in about 1982 they filed a
8
vested rights application with the state under area of
9
critical state concern legislation. It's the same
10
statute, in fact, that the Ambrose case has gone
11
under, which Judge Paine found did entitle you to
12
vested rights solely based on the platting of your
13
lot. Now, in this case they did have a platted lot,
14
but Judge Garcia found that it would have been futile
15
for them to go through the vested rights procedures
16
because they did not have a valid claim, he thought.
17
But our position is we think the law supports
that regardless of whether -- and there was a staff,
there was a memorandum from an Assistant County
Attorney at the time opining that she didn't believe
that they had a valid claim for vested rights, but
under the law that decision should have been made by
the County Commission. You know, you get opinions
from staff recommendations but you're not bound to
those.
It's the Commission's call whether or not
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that's a valid claim for vested rights. So he thought
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that it was futile for them to proceed with that, but
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we don't believe that that's the case so we think that
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their case was unripe for judicial review. And that's
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one of our lssues.
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MR. MORGAN: This lS going to be really a
7
cutting-edge type of decision, because if they're
8
right it means that a person can go to the staff, get
9
turned down by the staff at the planning level, and if
10
they get turned down there appeal without coming
11
before the County Commission whether you decide
12
whether or not you want to grant something.
13
And we presented the evidence of the Big Pine Key
14
situation with the church there. The moratorium was
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on for Big Pine Key. They appeared before the County
16
Commission, and you gave them some relief. But In
17
this case they never appeared before the County
18
Commission, so you had no opportunity to give them
19
some relief. And Tradewinds.
MS. CABANAS: Yeah. Both the Big Pine church and
Tradewinds went to the Commission under the
moratorium, because they were subject to it, and the
Commission adopted a specific exemption for churches
and for shopping centers and they were able to build.
COMMISSIONER NELSON: Was there ever an attempt
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by the applicant to go to the County Commission that
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was turned down in any way?
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MS. CABANAS: No. Their vested rights
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application was the only thing that they filed, and
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they twice asked that it be postponed and on the third
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time they asked that it be indefinitely postponed and
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they never pursued it.
8
COMMISSIONER NELSON: So that was their request?
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MS. CABANAS: Yes.
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MR. MORGAN: I think it was like a setup, doing
11
it that way and getting turned down and saYlng okay,
12
with this turned down let's go sue.
13
COMMISSIONER McCOY: Two questions. One, there's
14
still that void of administrative remedy that's never
15
been exhausted. That is sufficient cause right there
16
to stop it right there because it never even reached
17
us?
MR. MORGAN: Right.
MS. CABANAS: Right.
COMMISSIONER McCOY: It should not be at this
level anyway?
The second one, are there any other parties to
this suit beside us?
MS. CABANAS: No. It is --
COMMISSIONER McCOY: Does the state refuse, has
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the state asked to be a party?
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MS. CABANAS: No. Because their allegation is
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that the only regulation that prevented them from
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building was the County's moratorium.
5
COMMISSIONER McCOY: Of course maybe it's kind of
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silly to say, but the County's moratorium was
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predicated on the state's mandates.
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MS. CABANAS: Right.
9
COMMISSIONER McCOY: So they are not an innocent
10
party to this whole thing, and it looks like they
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should at least be invited to be a party to the suit.
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COMMISSIONER WILLIAMS: Wouldn't you just like to
13
spend their money? My question --
14
MR. MORGAN: They got us into this, and where are
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they when it comes time to pay the bill?
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COMMISSIONER WILLIAMS: I do know courts, one of
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the things in my brief experience with courts is that
they don't like to trod upon the authority of other
branches of government. This would ln essence, were
they to uphold the judge's finding, be the loss of a
tremendous amount of power for the county commissions,
correct?
MR. MORGAN: Yeah. It's a separation of powers
problem, because only the County Commission can make
the law. The planning level cannot make law. Law is
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only what the County Commission says that it is.
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COMMISSIONER WILLIAMS:
So my point here is sort
3
of the fact that the problem you're pointing out is in
4
essence one that I've rarely heard of a higher court
5
willing to do. When I think of the amicus curiae we
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would generate from every county and municipal
7
commission in the land should this look like it's
8
about to be overturned and any staff decision become
9
law or legally questionable, that's about as close to
10
a really, really good type case as you can hope for.
11
Now, the issue becomes, since there seems a
12
likelihood that we would win on that alone, what does
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winning mean? Does winning mean remanding back and
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they look at that anew, is it over and we win, and
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what are the, you know, options from there? That's
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the first of my questions.
I've got a couple.
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MS. CABANAS: On the ripeness issue it is
18
possible that they could remand because it's a factual
19
case-by-case analysis. So it's conceivable that the
court could say, well, you know, we need some more
factual findings regarding what exactly was their
claim to vested rights, although this is all within
the record. Regardless of whether it's in the record
they couldn't make a factual determination on that.
They'd have to send it back. But they could simply
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say you didn't exhaust, it's unripe, dismissed.
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COMMISSIONER WILLIAMS:
So the possibilities,
3
then, are that they will either squash our authority,
4
which is extremely unlikely, or that they will simply
5
overturn this decision and protect us, or that they
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will choose one portion of it and remand it for
7
reconsideration; is that correct?
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MS. CABANAS: Yes.
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MR. MORGAN: And remember, this is a moratorium
10
situation, not a non-moratorium situation.
So their
11
argument is that it would have been futile because of
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the moratorium.
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MS. CABANAS: Yeah. There is a futility
14
exception to the exhaustion of administrative
15
remedies, but there is no futility exception to the
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final decision requirement.
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MR. MORGAN: That's what we thought was so wrong
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about the order. Because the order, if you read the
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order, it's a very, very strong property rights order,
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almost accepting everything that planning, you know,
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puts forward.
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COMMISSIONER WILLIAMS: Right. Which I really
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think is another side that is deeply vulnerable at a
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higher court level.
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The second question: Talk to me a little bit
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about worst case scenario.
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MR. MORGAN: Hrnrn-hrnrn.
3
COMMISSIONER WILLIAMS: You've talked about the
4
value and you've talked about the six million and the
5
impacted value, so to speak.
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MS. CABANAS: Right.
7
COMMISSIONER WILLIAMS: We're talking about an
8
eight-year period. And pardon me for not knowing more
9
about this, you all. But the vulnerability of the
10
County, obviously always one of the big pushes towards
11
settlement is if you think you could do worse in
12
court. Frankly, given the judge's determinations and
13
the manner in which they were expressed, I'm not sure
14
we could possibly do worse.
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MR. MORGAN: In terms of dollars it could be
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worse, and that's what you need to consider.
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MAYOR NEUGENT: And if you go before a jury trial
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you always run the risk of doing worse; is that a fair
19
statement?
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MR. MORGAN: Absolutely.
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COMMISSIONER WILLIAMS: The appeal would be that,
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or you're talking about --
MS. CABANAS: The appeal would be post-final
judgment as to damages.
COMMISSIONER WILLIAMS: Right. And the appeal
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would be a Jury trial?
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MS. CABANAS: No, no. Just to the Third District
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three-judge panel.
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COMMISSIONER WILLIAMS: And that's kind of my
5
point here.
I will tell you that I don't think that's
6
the worry, because I think there's a crucial weakness
7
in what he's done that any court would be very nervous
8
about advocating, i.e., taking on authority. What
9
happens in his court is going to happen, and his
10
direction will be firmly in the direction of the
11
plaintiffs. I think they will, it will be maximum
12
damages that will be awarded under him in all
13
likelihood, but I think there's close to a sure shot
14
of overturning.
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MS. CABANAS: Yeah. He's not left a lot of
16
wiggle room, for instance, for a jury to corne in and
17
say, okay, yes, the plaintiffs won, but we give them
one dollar.
COMMISSIONER WILLIAMS: Right.
MS. CABANAS: Because his order has already found
the impaired and unimpaired value. So the only
question, really, for us to litigate at damages lS,
well, what is the proper test based on those values?
And the courts are allover on that test.
What they're proposing, what the plaintiffs'
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proposal is, and this is our worst case scenario,
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based on what their position is, that you take the
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difference in the impaired and unimpaired value, which
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is the 5.8 million, and you apply a rate of return of
5
12 to 15 percent per year which compensates them for
6
their loss of investment on the economic use of their
7
property for each year. So with an annual rate of 15
8
percent, which is the maximum that they're asking for,
9
that's 14.2 million.
10
MAYOR NEUGENT: That'll bankrupt us.
11
MS. CABANAS: Excluding prejudgment interest and
12
attorneys' fees.
13
MAYOR NEUGENT: Karen, you said that there was a
14
case that is before the Supreme Court at this point in
15
time that may have some
16
MS. CABANAS: Yeah. They've taken up a
17
moratorium inverse condemnation case.
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MAYOR NEUGENT: Now, that's, I see that as a good
19
thing and a bad thing.
MS. CABANAS: It could be good, it could be bad.
MAYOR NEUGENT: And certainly if the ruling was
in favor of the plaintiff that would not be good for
us and puts us probably in a worse situation.
MR. MORGAN: But you meet again after that.
MAYOR NEUGENT: Will that case come up before we
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arrive at a conclusion here?
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MS. CABANAS: It should. It should be out around
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the end of the year, from what I've heard.
4
MAYOR NEUGENT: Have these people given us any
5
indication that they may be willing to settle out of
6
court? And can or would we even do that?
7
MS. CABANAS: Well, they did prior to the
8
liability phase. You know, of course it's a court
9
ordered mediation, so, but I think they would be
10
corning to the table in good faith. You know, what
11
they're willing to take
12
MAYOR NEUGENT: So the judge's ruling would
13
stand. Would that open up --
14
MS. CABANAS: Yeah. They certainly are at a
15
greater advantage at mediation having that ruling.
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MAYOR NEUGENT: Does that put any present cases,
17
future cases --
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MS. CABANAS: No. None that we have going on
19
now. This was the oldest case that I have going on
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with the land use.
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MAYOR NEUGENT: Of which Jim has repeatedly said
22
that he was most concerned about.
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MS. CABANAS: Yes.
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MR. MORGAN: We did win half the case on the
25
statute of limitations. That may set the precedent
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for other cases that may, you know, pop up on the
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statute of limitations.
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MS. CABANAS: We won on all of the due process
4
claims in federal court, and then the federal court
5
kicked this back to state court on inverse
6
condemnation. That's why it's been sitting around for
7
so long.
8
COMMISSIONER NELSON: Karen, this lS the second
9
time that Judge Garcia has remanded us to mediation.
10
If we go forward with this, based on how many cases
11
are potentially out there, and step back and do a
12
settlement of this, doesn't that set a tremendous
13
precedent for other people to corne to the plate and
14
say we have the same circumstances?
15
MS. CABANAS: On this case, no.
There's, there's
16
no one else out there that could even bring a case at
17
this point based on these moratoriums. Their statute
18
of limitations would be long expired.
19
And this was, the problem with this case and why
it was such a bad case from the beginning is that this
all happened in the mid-'80s and the U.S. Supreme
Court didn't even recognize temporary takings until
'85, so when we enacted it at the time nobody thought
twice about it. You know, you would never corne In
today and say, and do a blanket moratorium on
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properties over a certain size.
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MR. MORGAN: We need to explain that -- this'll
3
really get your blood boiling -- the fact that they
4
sold the property for X number of dollars and now what
5
this is for is for the period of time over and above
6
what they've already sold the property for.
7
MS. CABANAS: Yeah. When they sold the property
8
to the state, in '89, '90 they sold it to the state,
9
they sold it based on an appraisal.
They did it
10
pursuant to the statutes, which require two
11
appraisals, and because it was a state purchase for
12
conservation purposes it was appraised at market
13
value, disregarding the regulations.
So when they
14
bought, when the state bought it they bought it for
15
5.9 million.
16
You know, we argued to Judge Garcia, well,
17
they've already been compensated. They've had what ln
18
effect is a post-deprivation remedy like you would
19
have in a due process hearing where yes, they were
20
denied use for that period, but because the state carne
21
along and purchased it for full value there's been no
22
taking. Now, he, of course, didn't go for that
23
argument.
24
But there is some, there's some case law out
25
there, not directly on point, there's an eminent
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domain case where some property owners voluntarily
2
sold to DOT, the project that was supposed to happen
3
never happened, they carne back to DOT and wanted more
4
money and wanted their land back, and the Florida
5
Supreme Court said no, once you sell your property to
6
the state you've given away all interest you have,
7
including the right to bring this claim. And I
8
thought that case was very on point, but Judge Garcia
9
did not.
So that's our double-compensation argument,
10
which is another one of our major points.
11
MAYOR NEUGENT: Karen, would you try to glve us
12
some kind of idea what, if we go through this appeals
13
process what the cost will be? If we take it all the
14
way to the Supreme Court?
15
MS. CABANAS: Well, let's see.
I'm not sure what
16
our, what our fees are up to this point.
I know that
17
the other side's fees at this point are about 300,000.
18
And you're still looking at doing the jury trial on
19
damages and all appellate work. And so that could
20
potentially double, I would think.
21
MR. MORGAN:
It's really insignificant compared
22
to the amount of money you're talking about.
You
23
know, if you spend another 150,000 from now through
24
the Supreme Court you're looking at a verdict that
25
could be somewhere between five million and fourteen
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million.
So it's really insignificant compared to
2
what you're, you know, trying to avoid.
If they would
3
accept an amount of money that you'd be willing to
4
offer to them, then you, you know, mitigate your
5
exposure.
6
Commissioners, you know,
COMMISSIONER NELSON:
7
this is just the tip of the iceberg.
Lloyd Good has
8
already filed suit.
I was told he was.
9
MS. CABANAS: He did.
I don't think his case has
10
very much merit based on the court opinion that came
11
out on it about a year or two ago.
They already said
12
that he had no investment-backed expectations when he
13
even bought the property, so I expect to be successful
14
on that case.
15
COMMISSIONER NELSON: But we will have to defend
16
it.
17
I think it's a far cry from this
MS. CABANAS:
18
one.
19
Jim concurs with Karen.
MAYOR NEUGENT: Yeah.
20
Or Karen concurs with Jim, whichever.
21
MR. MORGAN:
It's a shame when you have to, if
22
this case wasn't, if there wasn't so much money
23
involved in this case you'd want these issues heard
24
and disposed of.
25
COMMISSIONER WILLIAMS: Yeah.
I mean, this 1S so
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clearly something that should not be allowed to stand.
2
MR. ROBERTS:
I agree with you. But I guess the
3
question for these two folks is to give us some type
4
of indication on how you feel our chances on appeal
5
are.
Because obviously we're ordered into mediation,
6
and how we approach that mediation may be predicated
7
upon that answer.
8
MR. MORGAN: Right. And you should know, too,
9
that, I mean, all cases nowadays go to mediation.
10
It's nothing unusual for us to be sent to mediation.
11
COMMISSIONER McCOY: There's a second part to
12
this, too.
Should we not prevail there has to be some
13
consideration that the state will intervene in one
14
manner or another, whether through the legislative
15
process or we just sue the state.
But there should be
16
some, some recourse in that direction.
17
This is an area of critical state concern.
This
18
lS mandated. This has been forced upon us. We have
19
done what the state has asked us to do. We did it.
20
The courts have found that we were remiss in doing it.
21
And if we were remiss in doing it, they were remlSS in
22
asking us to do it. That's the down side if we fail
23
to prevail.
If we go all the way to the Supreme Court
24
and they have a ruling that's comparable to this, it
25
might settle the matter right there.
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So I'm not sure what we're going to do in
2
mediation unless, other than because we've been told
3
by the court to do it, so I guess we have to go
4
through the process of a mediation.
5
I'm with Sonny there.
COMMISSIONER WILLIAMS:
6
Your point is that this is kind of a process that we
7
all enter into in good faith, but in all likelihood we
8
really do have to settle this elsewhere.
Some of the
9
reasons you brought up, there may not be things
10
specifically out there like this but there are many
11
things out there like this. Whether they have grounds
12
or not, somebody getting millions of dollars when they
13
shouldn't makes it a happier thing for other people to
14
sue.
15
So what you need from us is a number, and you
16
need a representative. Are you looking for a staff
17
representative or a Commission representative?
18
MS. CABANAS:
It doesn't matter. Whatever the
19
Commission would like to do.
20
COMMISSIONER WILLIAMS: What would you recommend
21
as a figure?
22
MS. CABANAS: Well, your worst case you're
23
looking at, with their 15 percent rate you've got 14.2
24
million. With prejudgment interest
25
What? Would that double that?
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MR. MORGAN: You're talking about 10 percent a
2
year up to this year and then 11 percent starting in
3
January. That's, on 14 million it's 1.4 million a
4
year, for how many years?
5
COMMISSIONER WILLIAMS: And, you all, if you're
6
looking for us to throw out a number for you, let me
7
suggest that we not. You are our attorneys in this.
8
You are aware of what is to come and what is past in a
9
way that we cannot be. Tell us what you are thinking.
10
Is there a reasonable thing for us to put on the
11
table, given the circumstances and given the fact that
12
there are reasons to see this go its way and to the
13
upper court if we need to?
14
MR. MORGAN: What have they indicated to you that
15
they would not take? If we know the figure that they
16
wouldn't take, then you will know that that'll give
17
you a good guideline as to whether you should even
18
try.
19
MS. CABANAS: Well, prior to trial we filed an
20
offer of judgment which is more to, for the purpose of
21
if we were successful on liability that would entitle
22
us to attorneys' fees. So as an offer of judgment we
23
offered them about 140,000, which they, of course,
24
rejected. I believe we had some brief discussions
25
with their attorney and he was discussing that, well,
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you know, of course our offer wasn't really a
2
reasonable offer to them because they were looking at
3
at least a million or two that they would have been
4
willing to take at that time.
5
MAYOR NEUGENT: Well, obviously if they sold the
6
property for $6 million back then I guess these folks
7
have some pretty deep pockets.
8
MS. CABANAS: Yeah. Between the two properties
9
that they sold and what the expenses they listed were,
10
they had already netted about seven million on the
11
whole thing.
12
COMMISSIONER WILLIAMS: So they mentioned one or
13
two. Have they incurred expenses since then that they
14
would like returned to them?
15
MS. CABANAS: About 300,000, their fees have been
16
up to this point.
17
COMMISSIONER NELSON: What would it cost -- the
18
Mayor asked before about how much would it cost to go
19
through the appeal, through its entirety and
20
attorneys' fees for us, what dollar amount. Would
21
that be something similar to 300,000?
22
MS. CABANAS: If we exhausted all of our appeals,
23
probably somewhere around there. But assuming we
24
exhaust all our appeals and we're unsuccessful and
25
they are completely successful, with prejudgment
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interest and their fees there is a potential judgment
2
of anywhere from 14 to 28, 29 million.
3
I understand that.
COMMISSIONER NELSON:
But in
4
the same token, we could also enjoin the state in
5
that. The other ramification here is that if, in
6
fact, we do settle with them without any costs it
7
opens the door for other people to walk through. And
8
that's what my concern is more than anything else, is
9
that crack in the door.
For me, and I don't know, the
10
other Commissioners may have a totally different take
11
on this, but with my background on something like
12
this, it's an easy call for me. You know, we have to
13
go to the mat with them.
I mean
14
MAYOR NEUGENT: Well, my interpretation of what
15
Karen said was that although there may be some cases
16
out there, we don't recognize any that would get by
17
the statute of limitations in some case and --
18
MS. CABANAS: He's granted us rehearing on the
19
statute of limitations. What his order found was,
20
they were arguing both a categorical and an as-applied
21
takings claim, and he found us liable for both. And
22
from what I've talked to Jim about, looking at the
23
cases, you can't find both. You have to find one or
24
the other. And by finding their categorical claim,
25
that's a separate limitations period. Because you're
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8
9
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11
12
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15
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17
18
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20
21
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I
26
attacking the regulation on its face, your limitations
period begins to run on the date of enactment. So on
the categorical claim their limitations period should
have expired. And he's going to rehear that in
November. But even if he were to grant that, that's
only to the categorical claim. We still have an
as-applied claim, which is the same damages.
COMMISSIONER WILLIAMS: Well, I certainly
recognize what Murray is saying. I certainly feel a
lot of that. I think the good faith point of court
mediation, that going in there without being willing
to do anything to mediate is frowned upon very
heavily, and I think it would come back to bite us
badly, at least at this level in court.
We have a figure that we believe they were
willing to consider settling before they incurred the
$300,000. Now, if we were to commit funds today they
would almost assuredly be, I would guess,
infrastructure funds.
MAYOR NEUGENT: I mean, being creative here, I
was thinking that maybe we could give them No Name Key
and maybe they'd settle for that.
COMMISSIONER WILLIAMS: He's teasing, for the
record.
MR. ROBERTS: Keep in mind, this will become a
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public document.
2
COMMISSIONER WILLIAMS: Which lS why I added that
3
he was teasing.
4
COMMISSIONER SPEHAR: So are you leaning towards
5
two million?
6
COMMISSIONER WILLIAMS: I'm actually movlng
7
towards two million, maybe even two and a squiggle,
8
like 2.2, 2.25, because of that additional expense.
9
There's a lot that bothers me about settling
10
things. There's a lot to feel good about with getting
11
this puppy behind us. Would two million be a number
12
you were comfortable with? Would you be more
13
comfortable were we to be higher or lower than that?
14
Will you answer at least that question on the
15
financing front?
16
MR. MORGAN: I'd be comfortable going In with 2.2
17
at this point. If they're, if they look like they're
18
corning down to a number that would fall within the
19
range -- there's nothing final about mediation.
20
MS. CABANAS: Yes. The mediation order would
21
still have to corne to you for final approval.
22
MR. MORGAN: So if they get down to, if we think
23
it's reachable by the help of the state we can say to
24
them at that point we can settle in principle for that
25
figure but we would need to go find, you know, the
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additional funds and have a contribution from the
2
state.
3
MAYOR NEUGENT: Hugh, should we not be sitting
4
and talking with whoever makes calls like this with
5
the state? Have we done that at this point in time?
6
MR. MORGAN: No. We haven't involved the state
7
at all.
8
COMMISSIONER NELSON: Hugh, if you walk in there,
9
basically in a mediation, and it comes down to going
10
across the table and saying, well, what will you
11
settle for and you come up and you say 2.2 million and
12
they take it, I'll feel real uncomfortable with the
13
precedent that's going to set because, you know, as
14
Ms. Williams mentioned a few minutes ago, whether or
15
not they would be successful in court, it's going to
16
bring up wiggle worms for future suits.
17
MR. MORGAN: Well, you're going to have more
18
wiggle worms if you end up with a $30 million verdict.
19
MAYOR NEUGENT: Absolutely. And the other thing
20
that I will tell you right now --
COMMISSIONER SPEHAR: Do you have to have a
maximum that we would say that we would not go over
this point?
COMMISSIONER McCOY: First of all, if the courts
sustained some kind of a number like that we couldn't
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do it, anyway. We'd have to go to the state.
2
MR. MORGAN: Right.
3
COMMISSIONER McCOY: And then we'd say the state
4
is obligated for the whole thing. So we'd go for the
5
whole thing. So if we lose big time, we haven't lost.
6
MR. MORGAN: It's possible.
It's a little
7
reminiscent -- you weren't Commissioners when this
8
happened, but when that one area of critical state
9
concern first came into being I was a lobbyist for the
10
County, and we went to the state for a number of years
11
for money to help us with areas of critical state
12
concern.
In the first year we successfully lobbied
13
$10 million. And, of course, that helped us out.
14
COMMISSIONER McCOY: But that was 25 years ago.
15
MR. MORGAN: But--
16
MAYOR NEUGENT: We're sitting around the table
17
with some, with all lay people other than you and
Karen, making some pretty glib decisions here when
I've got to think that there are some state attorneys
or some people that could be giving us a little more
guidance.
I'm telling you as a business person, if I'm
going into mediation with a judge's ruling saying,
with the potential of getting 14 to 30 million dollars
out of you, $2 million isn't going to sway me or get
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me to the table. I would, it's strictly a supposition
2
on my part, but I'm not even starting to listen to you
3
until someone says five million bucks.
4
MR. MORGAN: Possibly. But we won't know that, I
5
think, until we start negotiating. But if they lose
6
on appeal, they've lost a tremendous amount.
7
MAYOR NEUGENT: Well, certainly. And it all
8
comes, we're talking about rolling those same dice
9
that these guys would be rolling. But, I mean,
10
they've already got a judge's ruling in their favor,
11
which would make me feel pretty good. I don't
12
disagree.
13
And to go in with $2 million, offering 2, $2.5
14
million is something that I think that we should
15
consider, but I certainly also think that we might as
16
soon as possible start discussing things with some
17
state folks here.
18
MR. MORGAN: Do you want your lobbyist to do
19
this, or do you want us to do it?
20
MAYOR NEUGENT: You know, I'm not, I don't want
21
to act unilaterally here. I'm asking the Commission
22
to join in here. But I --
23
COMMISSIONER McCOY: Okay.
If you want me to
24
join in, I think we should just go to the secretary of
25
the DCA.
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COMMISSIONER WILLIAMS: He does most of the land
2
stuff.
3
COMMISSIONER McCOY: This is a land stuff?
4
COMMISSIONER WILLIAMS: Not land use, but state
5
land. They bought the land.
6
COMMISSIONER NELSON: You know, this is a
7
make-or-break situation. If we lose the appeal and
8
they come back with a $14 million judgment against us
9
it's going to involve the state, anyway, and enjoin
10
the state in that suit, and also the payment. On the
11
other hand, if we pay them $2.2 million, which is what
12
the number is on the table now, that issue's over and
13
it just begins the process of everybody else, so.
14
MAYOR NEUGENT: Well, I still think that there's
15
some obligation on the state.
I mean, if we're saying
16
this right now, then we ought to be saying it whether
17
it's $2 million or $30 million, that the state has
18
some involvement here.
19
COMMISSIONER WILLIAMS: I'm sure we do nothing
20
without having a meeting in Tallahassee with our
21
attorneys and the state lands trust.
22
MR. MORGAN: I wouldn't do that before mediation,
23
until we get their figure down. If they get word that
24
we're going to the state, the figure's going up. So
25
any ideas about the state should remain totally here.
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Don't discuss it with anyone, even your dog. Because
2
if they get wind of this, you know, their figure is
3
going to increase.
4
I think our next step 1S to take our 2.2, if
5
that's what you authorize, into mediation. We're
6
going to start low, way below that figure. They're
7
going to start high. We need to find out by the
8
process of getting closer and closer together where
9
they are.
If it looks like they're not going to corne
10
off the 14 million or 10 million, then we shouldn't
11
show our hand on 2.2.
12
So I think we need to get through mediation right
13
now before we do anything and just see, try to get an
14
idea of where they are.
Probably one of you or more
15
than one of you could be at the mediation so that you
16
can get the flavor of what's going on.
17
MAYOR NEUGENT:
Can you define, describe, the
flavor of mediation?
MR. MORGAN: A mediation is, you'll have a
mediator who has no -- a mediation, of course, is not
binding.
MS. CABANAS: And we have Dave Kirwan, by the
way.
MR. MORGAN: Okay.
Dave Kirwan would be the
mediator.
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And what the mediator tries to do -- it's nothing
2
more than a settlement conference. The advantage that
3
a mediator has over an arbitrator or a judge is an
4
arbitrator or a judge cannot talk to the parties
5
outside of the presence of the other parties, where a
6
mediator can because a mediator has no binding
7
authority on anybody. A mediator cannot order anybody
8
to do anything.
9
So the mediator will sit down with everyone, each
10
side will tell their story, how much they think
11
they're entitled to or how much they're willing to pay
12
from the outset or why they think they have a good
13
case. Then what he'll do is break up with each side,
14
take them into a separate room and discuss the pros
15
and cons of their case with them and do it with the
16
other side, try to get a figure out of one side, get a
17
figure out of the other, and the mediator tries their
18
best to bring the two parties together.
19
COMMISSIONER WILLIAMS: There is one thing that's
20
also crossing my mind. There's somebody I'm thinking
21
of, you all, that does land negotiation pretty
22
constantly and is very cornmon-sensible but this isn't
23
his job, and that's Mark. Mark Rush. He's very, very
24
good.
I don't know that he would be willing to do it.
25
It is not the job of the land authority.
I will
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assume the land authority had nothing to do with this
2
when this began?
3
MS. CABANAS: No. They were a gleam in the eye.
4
MAYOR NEUGENT: Karen, were there not -- I read
5
the case, didn't have anything, forgot we were doing
6
this and didn't even debrief myself on it
but were
7
there not Planning Commissioners and County
8
Commissioners mentioned in the case?
9
MS. CABANAS: I don't believe there were any
10
County Commissioners mentioned at all. The only --
11
they had staff dealings with --
12
MAYOR NEUGENT: The County Attorney?
13
MS. CABANAS: They did meet with the County
14
Attorney at the time, who, from what their witnesses
15
said, told them that there was nothing they could do
16
with the property at the time. Which just further
bolsters our case of, well, the County Attorney is not
the County. The Commission is the only body that has
authority to act on behalf of the County. There was
the Assistant County Attorney memo In the file about
their vested rights chances. But no, they never, they
never went before any board on any application for
anything.
MAYOR NEUGENT: Well, you have said some things
that make me feel a little better than I did after
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reading the case, because there was this real empty
2
feeling in my stomach after --
3
MS. CABANAS: Mine, too.
4
MAYOR NEUGENT:
-- reading it. And so, you know,
5
I have some concerns over the potential, you know,
6
financial implications that are involved in it and
7
I --
8
COMMISSIONER McCOY:
Part of the consideration of
9
these things is what can the entity that's being sued
10
reasonably absorb? And the County Commission, I
11
think, could go into a mediation with a figure of $2
12
million as being a reasonable number that the County
13
can say we can afford to pay this and we can't afford
to pay anything more.
If you go into that thing and, understanding the
size of this county and the budgets we have and what
we have available to expend, we can easily go in there
and it shows the reasonable good faith that's going to
be necessary and the further litigation that goes on
beyond this, that'll take us to the end of the year
when the Supreme Court will have a ruling on this
thing, and if it's comparable, that's fine.
Even then, we still stand, if it's an exorbitant
amount of money we just go to the state. We don't pay
it. We can't pay it. We're an area of critical state
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concern. This is an obligation of the state.
Period.
2
They have the deep pockets. The County does not have
3
the deep pockets.
4
And that would be my recommendation, because it's
5
coming on to five o'clock and I'd like to get these
6
things
7
MR. ROBERTS: And I would also suggest in that
8
regard, and I've been to mediations with Hugh and I
9
know he's pretty tough in mediation, handles it pretty
10
well, but if we're going to talk at the $2 million
11
level I'd like to see if there's some possibility of
12
structuring the payments in such a way that it would
13
impact over a period of time on the County budget,
14
whatever the source of funding. And maybe they won't
15
accept that, but we will at least include that.
16
MR. MORGAN: Hmm-hmm.
17
COMMISSIONER McCOY: If they accept the two
18
million they'll accept it on a payment scale. I don't
19
think that's going to be the make or break. I think
20
that we should stand there at that number and say
we'll go in there, this is sufficient for the size of
the county, repeat myself, but it'll show sufficient
faith in going into mediation.
Beyond that point I think that we should let the
dice roll and whatever happens will be determined, who
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pays for it, whether the state pays for it, which I
2
think is ultimately the person that has that
3
obligation, and if not at least it's something that
4
you say, well, maybe we could structure this thing to
5
pay $500,000 a year over a four-year period or
6
whatever.
7
But are you making a recommendation that the,
that our representative at this thing be Hugh Morgan?
MR. ROBERTS: No. I think that --
MR. MORGAN: No. I'd be the attorney there for
the County, but we need a representative of the
8
9
10
11
12
County. The rules require that you have a
representative from the party there.
MAYOR NEUGENT: Hugh, you're saYlng that this is
nonbinding. What does nonbinding mean? That you go
in there, you negotiate something, you come out and
you come back to the Commission?
MR. MORGAN: Well, it means that the mediator
cannot bind you, which means he can't order you to
take a settlement.
COMMISSIONER McCOY: The judge can?
MR. MORGAN: No. The judge can't order you to
take a settlement.
MAYOR NEUGENT: But let's say we walk out and we
say, okay, we're going to pay you $2 million. Does it
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then corne back to the County Commission to approve us
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really paying the $2 million?
3
MS. CABANAS: I don't believe it would have to
4
corne back to you, because you've already approved it
5
here.
6
COMMISSIONER NELSON: Does that $2 million
7
include attorneys' fees?
8
MR. MORGAN: It includes everything.
9
MR. ROBERTS: Keep in mind something, okay? What
10
you're doing, just because I've been involved in some
11
mediations, is you're giving whoever your
12
representative lS the authority to settle this thing.
13
MR. MORGAN: Up to that figure.
14
MR. ROBERTS: Up to that figure. And it may
15
ultimately have to corne back to you in a public
16
meeting to vote the dollars.
17
MR. MORGAN: Right.
MR. ROBERTS: But if you walk into that public
meeting and don't vote the dollars, you've got one
rather upset judge.
MAYOR NEUGENT: Okay. So essentially it lS
binding.
MR. MORGAN: That's right. The mediator can't
bind you, but if you reach an agreement that day, if
you reach an agreement and sign an agreement, that
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agreement is enforceable. Even if you didn't vote it
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at a County Commission, they could take it to the
3
judge and he can enter an order ordering you to pay
4
it.
5
MAYOR NEUGENT: Okay.
6
MR. MORGAN: But yes. The agreement itself, if
7
you reach one, is enforceable.
8
COMMISSIONER NELSON: As long as you go In there,
9
though, with the thought that it's not going to be a
10
one-time payment this year out of this infrastructure,
11
that it will be spread out over three or four years so
12
it won't impact us so much this year. Because I'm
13
going to tell you right now, $2 million out of our
14
infrastructure in this next budget cycle is going to
15
create a lot of problems.
16
MS. CABANAS: No. I think they would understand
17
that it can't come right out of the infrastructure.
18
MAYOR NEUGENT: I would suggest that it ought to
be out to 2004, from the standpoint that's when the
jail's paid off and we do have some infrastructure
money that's not pledged at that point.
COMMISSIONER WILLIAMS: Well, we would probably
be doing some dancing either way.
COMMISSIONER McCOY: It sounds like we're just
about there, except we haven't established who's going
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to act as our representative.
2
MAYOR NEUGENT: Well, first of all let's do the
3
dollar amount that we agree upon, because there were
4
two or three numbers talked about, 2 million, 2.2, and
5
2.5, that I recall.
6
MR. MORGAN: If it was 2.2 we can come back to
7
you, we could say to them, you know, I think I can get
8
authority for 2.2.
9
MS. CABANAS: Yeah. If we get something that's
10
close, slightly over, then it would, we could bring it
11
to you for --
12
MR. ROBERTS: Keep in mind, the mediator may say
at the end of this, you're at two and a half million
dollars, will you take this back to the County
Commission to see if they will approve two and a half
million. So you may see a different number than what
you are approving here today. It will not be a
committed number. It will be up to you.
MR. MORGAN: What we could say to them is that we
could recommend --
COMMISSIONER McCOY: Your credit card 1S limited
to $2 million.
MR. MORGAN: It's a debit card.
COMMISSIONER SPEHAR: I think we should send
Mr. Roberts.
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COMMISSIONER WILLIAMS: Second.
2
MR. ROBERTS: What was the date?
3
MS. CABANAS: The 20th.
4
MR. ROBERTS: Of this month?
5
MAYOR NEUGENT: I would like to personally
6
request to the Commission that since this is my watch,
7
albeit all of our watch, but me being as Mayor, I'd
8
like to be there.
9
COMMISSIONER SPEHAR: You can't do that. That's
a Commission meeting.
MR. ROBERTS: Right. A Commission meeting In
Marathon.
MR. MORGAN: We can reschedule it.
MS. CABANAS: We can try to reschedule it.
MR. ROBERTS: If the Commission will promise not
to speak past noon on the 20th we could probably
COMMISSIONER McCOY: I'd vote for that.
COMMISSIONER WILLIAMS: Done by noon.
COMMISSIONER SPEHAR: That means no add-ons. No
20 add-ons on Wednesday, which carries over to Thursday.
21 (The proceedings were concluded at approximately
22 5:04 p.m.)
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10/10/01 20:14 FAX
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1 ~~R~~fl~a~E
2 STATE OF FLORIDA
3 COUNTY OF MONROE
4 I, Susan L. McTaggart, Court Reporter and
5 Notary Public, State of Florida at Large, do hereby
6 certify that I was authorized to and did report by
7 etenotype the proceedings in the above-entitled
B matter, and that the transcript is a true record of
9 said proceedings.
10 Dated this 9th day of October 2001.
11
~Ol
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~l44N1 ::t. l1Y)c. rr;~
Susan L. McTaggart, C Reporter
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W~~lii:', SIIIaIl L McTaggon
i.l I' MY COMMISSION # cC7mlO ~s
. :u. ~ AuaUI' '0. 2002
.q,.' IOIaOTHlU1l!OYFAIlIIISIJWQ./HC
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