Item I3TIME: 2:00 m
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: December 12, 2012 Division: County Attorne
Bulk Item: Yes No X Staff Contact Person: Bob Shillin er 292-3470
AGENDA ITEM WORDING: A Attorney -Client Closed Session in the matter of,
Monroe County v. Utility Board of the City of Key West, dba Keys Energy Services, Case
No.: CA-K-12-549; Roemmele-Putney, et al. v. Monroe County, et al., Case No.: 3D12-
333, Lower Tribunal Case No.: CA-K-11-342; Reynolds v. Utility Bch of the City of KW,
dba Keys Energy Services, PSC Docket No.: 120054--EM; An Administrative Appeal by
James D. Newton re: Property at 2047 Bahia Shores Road, No Name Key, Planning
Dept. File No.: 2012-096.
ITEM BACKGROUND: Per F.S. 286.11(8), the subject matter of the meeting shall be
confined to settlement negotiations or strategy sessions related to litigation expenditures.
The persons to be in attendance at this closed meeting will be the County Commissioners,
County Administrator Roman Gastesi, County Attorney Bob Shillinger, Assistant County
Attorney Derek Howard, Assistant County Attorney Susan Grimsley, Assistant County
Attorney Steve Williams, Assistant County Attorney Lisa Granger, and a certified court
reporter.
PREVIOUS RELEVANT BOCC ACTION: Approved at the 11/20/12 BOCC
meeting a closed session to be held 12/12/12 in Marathon, FL at 1:30pm.
CONTRACT/AGREEMENT CHANGES: NIA
STAFF RECOMMENDATIONS:
TOTAL COST: Court Revorter Costs BUDGETED: Yes No
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year
APPROVED BY: County Atty XX OMB/Purchasing I Risk Management
DOCUMENTATION: Included I Not Required-X
DISPOSITION:
Revised
AGENDA ITEM #
OUNTYSMONROE
KEY WEST FLORIDA 33040
(305)294-4641
Suzanne A. Hutton, County Attorney**
Robert B. Shillinger, Chief Assistant County Attorney **
Pedro J. Mercado, Assistant County Attorney **
Susan M. Grimsley, Assistant County Attorney **
Natileene W. Cassel, Assistant County Attorney**
Cynthia L. Hall, Assistant County Attorney **
Christine Limbert-Barrows, Assistant County Attorney**
Derek V. Howard, Assistant County Attorney
Lisa Granger, Assistant County Attorney
Steven T. Williams, Assistant County Attorney
** Board Certified in City, County & Local Govt. Law
August 2, 2013
Amy Heavilin, Clerk of the Court
Sixteenth Judicial Circuit, State of Florida
Monroe County Courthouse, Suite 101
Key West, Florida 33040
Attn.: Vitia Fernandez, Deputy Clerk
LJ
BOARD OF COUNTY COMMISSIONERS
Mayor George Neugent, District 4
Mayor Pro Tem Danny Kolhage, District 1
David Rice, District 4
Heather Carruthers, District 3
Sylvia J. Murphy, District 5
Office of the County Attorney
1111 12`h Street, Suite 408
Key West, FL 33040
(305) 292-3470 — Phone
(305) 292-3516 — Fax
Re: Monroe County v Utility Board of the City of %y West, Case No.: CA-K 12-549
Florida Public Service Commission Docket No.: 120054-EM
Reynolds v Utility Board of the City of %y West, Case No.: 3D12-333, Third District
Court of Appeals, State of Florida
Administrative Appeal by James D. Newton, Monroe Co. Planning Dept.
File No.: 2012-096
Dear Vitia:
Please find enclosed herewith a transcript of a closed session of the Monroe County Board of County
Commissioners on the four above -referenced matters. The closed session took place at the December
12, 2012 BOCC meeting in Marathon, Florida.
The above -referenced litigation has concluded, and this transcript can be added to the public records
on the BOCC meeting of December 12, 2012.
Very, truly yours,
v
Laurie Dastugue
Paralegal, Litigation Department
Enclosure: Transcript of Closed Session, BOCC Meeting of 12/12/12
N
I
BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY
ATTORNEY -CLIENT CLOSED SESSION
WEDNESDAY, DECEMBER 12, 2012
2:06 - 3:19 p.m.
Marathon Government Center
CERTIFIED COPY
2798 Overseas Highway
Marathon, Florida 33050
Re: Monroe County v. Utility Board of the City of Key West,
dba Keys Energy Services, Case No. CA-K-12-549;
Roemmele-Putney, et al. v. Monroe County, et al., Case
No. 3D12-333;
Reynolds v. Utility Board of the City of KW, dba Keys
Energy Services, PSC Docket No. 120054-EM;
An Administrative Appeal by James. D. Newton re:
Property at 2047 Bahia Shores Road, No Name Key,
Planning Dept. File No. 2012-096
COUNTY COMMISSIONERS:
George Neugent, Mayor
Danny Kolhage, County Commissioner
Heather Carruthers, County Commissioner
David P. Rice, County Commissioner
Sylvia J. Murphy, County Commissioner
STAFF:
Robert B. Shillinger, County Attorney
Susan Grimsley, Assistant County Attorney
Steve Williams, Assistant County Attorney
Lisa Granger, Assistant County Attorney
Roman Gastesi, County Administrator
Reported by: Susan L. McTaggart, Court Reporter
All Keys Reporting
Olde Town Centre 600 Whitehead Street
9701 Overseas Highway Suite 207, 2nd Floor
Marathon Key West
305-289-1201 305-294-2601
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P R O C E E D I N G S
THE CLERK: The next item would be the closed
session, Item I3, a Attorney -Client Closed Session in the
matter of Monroe County v. Utility Board of the City of
Key West, dba Keys Energy Services, Case No. CA-K-12-549;
Roemmele-Putney, et al. v. Monroe County, et al., Case
No. 3D12-333, Lower Tribunal Case No. CA-K-11-342;
Reynolds v. Utility Board of the City of Key West, dba
Keys Energy Services, PSC Docket No. 120054-EM; An
Administrative Appeal by James D. Newton re: Property at
2047 Bahia Shores Road, No Name Key, Planning Department
File No. 2012-096.
MR. SHILLINGER: Your Honor, we've asked for the
Closed Attorney -Client Closed Session pursuant to 286.11,
Paragraph 8. It's estimated that the time will take
about thirty minutes, maybe a little longer. The persons
attending the meeting will be the County Commissioners,
County Administrator Roman Gastesi, myself, Bob
Shillinger, the County Attorney, Assistant County
Attorneys Susan Grimsley and Steve Williams and Lisa
Granger, and a certified court reporter.
Since the law prohibits any other person from being
present at the closed session, the Commissioners and
Administrator, the attorneys for the County, and the
court reporter will now remain in the building -- in the
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meeting room, and all other persons will be required to
leave the room. When the session is over we will
reconvene and reopen the public meeting.
I would ask that you close the public meeting now,
Mr. Mayor.
MAYOR NEUGENT: The meeting is closed, and I would
ask everyone who was not named, please leave the room.
(Pause in the record.)
MR. SHILLINGER: If you will call the closed session
to order, Your Honor.
MAYOR NEUGENT: I would call the closed session to
order.
MR. SHILLINGER: All right. For the record, this
meeting is being held at the request of myself, the
County Attorney, who had announced at a prior BOCC
meeting held on November 20th that I needed advice in the
matter of Monroe County v. Utility Board of the City of
Key West, dba Keys Energy Services, Case No. CA-K-12-549;
the second case was Roemmele-Putney, et al. v. Monroe
County, Case No. 3D12-333, the Lower Case No. is
CA-K-11-342; PSC matter, Reynolds v. Utility Board of the
City of Key West, dba Keys Energy, PSC Docket No.
120054-EM; An Administrative Appeal by James Newton re:
the Property at 2047 Bahia Shores Road, No Name Key,
Planning Department File 2012-096. At that meeting the
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board approved holding today's closed session and public
notice was given through public announcement at the
meeting and through publication of the agenda on the
website.
For the record and the benefit of the court reporter
each of us will state our name, starting with the
Commission.
COMMISSIONER KOLHAGE: Danny Kolhage.
COMMISSIONER CARRUTHERS: Heather Carruthers,
District 3.
MAYOR NEUGENT: George Neugent, District 2.
COMMISSIONER KOLHAGE: District 1.
COMMISSIONER RICE: David Rice, District 4.
COMMISSIONER MURPHY: Sylvia Murphy, District 5.
MR. GASTESI: Roman Gastesi, County Administrator.
MR. SHILLINGER: Bob Shillinger, County Attorney.
MS. GRIMSLEY: Susan Grimsley, Assistant County
Attorney.
MR. WILLIAMS: Steve Williams, Assistant County
Attorney.
MS. GRANGER: Lisa Granger, Assistant County
Attorney.
MR. SHILLINGER: All right. Thank you.
Just as a reminder, we will only be discussing the
settlement negotiations and the strategy relating to
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litigation expenditures. We can't take any decisive
action at the meeting. We can only provide information
and direction to the attorneys. Any decision that you
make concerning this case must be done in a meeting
that's open to the public.
And I will start it off, if I may. All right. We
are obviously here to talk about the four pending matters
in the, that arise out of the No Name Key
electrification. We have, instead of doing what we
thought was impossible, which was four separate closed
sessions on the interrelated, we're bringing this all as
one closed session because all of the fundamental issues
tie together and because the settlement proposal that
we've been extended extends to all four of those cases.
Again, a little reminder on the attorney -client
privilege. This is the only time that we have an
attorney -client privilege as a group where things that we
say here we can't reveal, can't be compelled to reveal in
court or in public until the conclusion of the
litigation. So that privilege belongs to the client,
which is the five of you, and it exists as long as, you
know, you don't waive that privilege, so, and it exists
till the end of the litigation. That's why the court
reporter is taking a transcript down. We are limited,
again, to settlement negotiations as well as strategy
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related to litigation expenditures.
All right. Because we've got a lot of moving parts
I've kind of outlined who some of the players are just so
when we're discussing it might be helpful.
And, Madam Court Reporter, would you like a copy of
the Power Point later so you can take names off of it?
Okay. We will do that.
Mr. Smith, Bart Smith, represents the Reynolds and
the Newtons. Those are two of the group of property
owners that are pro -power. Mr. Tobin represents the No
Name Key Property Owners Association plus 22 pro -power
property owners. Robert Hartsell and a recent addition,
Richard Grosso, represent Alicia Putney, Mr. or Ms.
Barber, I'm not sure which, and then the Harlachers, the
solar community. And the Utility Board is represented by
Mr. Eden. Our team includes Derek Howard, who couldn't
be down here today, he is available by phone, if we need
to call him we'll deal with that issue, obviously Steve's
handling the case as well with Derek, and then Susan and
Lisa are involved in the issues as they result to the
administration of the provisions and the code issues that
are at issue in this case, so.
All right. You've received a settlement proposal.
I'm obligated to convey it to you, and I have done that.
It's evolved a little bit over time. We got the latest
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edition earlier this week, and it has four core terms.
It involves a stay of all of the litigation with a
dismissal upon completion of the terms. They're asking
for an immediate connection to the grid with permits and
they rely as justification on the Zoning in Progress
doctrines who authorize those permits. They are
proposing a joint application to amend the Comp Plan and
the code and dismissal of our trespass injunction action,
the latest one, without prejudice, which would allow us
to bring it back or these settlement talks would fall
apart. That's the four core terms of their proposal.
They have --
COMMISSIONER CARRUTHERS: Wait. Go back. That's
what we give them?
MR. SHILLINGER: That's what Reynolds through Bart
Smith has asked us to do.
COMMISSIONER CARRUTHERS: And in exchange they won't
sue us?
MR. SHILLINGER: They won't sue us or they'll waive
any claims.
Okay. That's their proposal. They suggest four
options to implement the four core terms. One, we would
reverse our position and state we have no authority over
the placement of utilities on all No Name Key roads,
including the right-of-way, or over the connection of the
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homes to the grid. They, in their mind under this
scenario we would have retained the ability to inspect
the connections to make sure that they comply with the
Building Code and Fire Code, et cetera, et cetera.
Option 2, we would reverse our position in front of
the PSC, recognize PSC jurisdiction, that they preempt
the Comp Plan and the code.
The third option is that we would accept Judge
Audlin's ruling that he has no jurisdiction and
implicitly recognizes No. 2, and that we would drop our
appeal to the Third.
And then the fourth option, and they wanted me to
emphasize this, is that if none of these options
necessarily work for us they are open to considering
options that allow them to connect to the grid as soon as
possible. So that's their bottom line, at least as
they've outlined it to me.
Mr. Tobin, since he represents a different flavor,
different group of defendants, has taken his own
approach, and interestingly, he filed a document with the
Third earlier this week, asked them to relinquish
jurisdiction and remand the case back to Judge Audlin for
the declaratory judgment action. So he's basically
joined the County and Putney on our side in the appeal.
So he's switched sides from being aligned with Reynolds
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on the appeal and said bring it back to the trial court
and let the trial court decide, that there's a divergence
of opinion --
COMMISSIONER MURPHY: Why?
MR. SHILLINGER: He thinks that that's a quicker way
of getting things resolved.
COMMISSIONER CARRUTHERS: Does he think he has a
better chance of winning?
MR. SHILLINGER: He didn't say that, but, I mean,
yeah.
He would also suggest that the board could make the
following findings, which would allow the connections to
happen. We would agree that the transmission line is not
governed by the prohibition, acknowledge it's located
within a public right-of-way, that the transmission line
is not future growth and is a better option from an
environmental perspective, so in his view that would
solve two of the three subdivisions, and then he would
think that the third subdivision would be recognized by a
finding that any transmission line crossing over the
County's lot is a minor deviation and not fatal to the
project as a whole.
COMMISSIONER MURPHY: Bob, back up. What do those
last three words mean?
MR. SHILLINGER: It would, Island's End is the third
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subdivision, so it would, oh, solvers, yeah.
COMMISSIONER MURPHY: Oh.
MR. SHILLINGER: That was written very early this
morning.
COMMISSIONER MURPHY: Is it supposed to be solves?
MR. SHILLINGER: Solves, yeah.
COMMISSIONER MURPHY: Okay. Now I understand it.
MR. SHILLINGER: Our assessment of the proposals.
Tobin's plans are just inconsistent with the Comp Plan
and the code. It goes against, you know, just making
those findings would be very problematic for licensed
staff, Certified Planners, to act upon because it's
contrary to the language of the code. So, you know, we
don't see that Tobin's plan is workable at all.
As for Mr. Smith's, there's also additional
problems. We just can't issue permits under our code the
way it is. We would set ourselves up for a losing
battle. We'd be handing the solar community that was
going to challenge those permits an easy victory and
defeating the purpose. The Zoning in Progress doctrine
does not operate to allow you to do something. It's
generally a shield, not a sword. It allows you to stop
the status quo while you engage in a down -zoning or other
zoning overlay that's going to take away rights, but it
doesn't give you the authority to jump ahead in your
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process and start issuing permits that aren't permissible
under our code. They don't allow you to jump forward to
the end of the game.
Steve spent a considerable amount of time
researching whether any court anywhere has upheld the
Zoning in Progress doctrine in an offensive capacity, in
other words, using it to justify issuing permits that are
still illegal under the code, and found nothing.
Right?
MR. WILLIAMS: From here to Seattle to all over the
country I could find nothing. The Zoning in Progress,
one case described --
MAYOR NEUGENT: Steve --
MR. SHILLINGER: Can you come forward?
MAYOR NEUGENT: The whole group of you. Why are you
sitting in the back of the room?
MR. WILLIAMS: My apologies. I looked at it as far
away as Seattle, Washington, through Missouri to other
states, anyplace I could find a Zoning in Progress
action. One case specifically referenced it as a pause
button in the action. It's certainly not viewed as a
fast -forward button. It's nothing that we can do to give
someone a permit. All communities that I have seen, even
the definition of Zoning in Progress if you go outside of
the legal world, just hitting Google, and it is. It is
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you're stopping an application from coming in until you
change your rules and regulations. It's not speeding it
up until you can change them. I looked all over the
country, but I couldn't find anyplace where someone sped
up the process to do it, if that's all that Bob had for
me.
MR. SHILLINGER: Yes.
So obviously that approach just doesn't work. If we
recognize the PSC's authority on preemption we're
forfeiting that argument should we want to raise it later
on and with other utilities it's not recommended. Our
utility counsel that we've retained on the outside has
advised us against adopting that position because he
doesn't think it's even consistent with the law. It may
be consistent with what Mr. Smith wants, it may be
consistent with what PSC's staff thinks that the law is,
but his read of the law, that's not consistent with the
law.
And the final defect is we don't control the Third
District appeal. Ms. Putney was the one who was the
appellant. We joined in with her. So we can't just
dismiss that appeal. It will go on without us absent an
agreement by her.
So none of her, none of the proposals from either
side work from a technical point of view. And so it
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comes down to the policy. You know, the current
policies, we would say they are defensible if we wanted
to maintain them, that we're not so far out on a limb
that we'd come to you and say we're in jeopardy of we
think we're going to lose something, we're going to end
up having to write significant checks or we're going to
lose and they're going to be compelled and our Comp
Plan's going to be stricken. It could happen but --
MAYOR NEUGENT: Weren't we saying that same thing in
the Galleon Bay situation, which things don't look very
attractive to us right now?
MR. SHILLINGER: Right. It's a different, you know,
you're talking apples and oranges.
MAYOR NEUGENT: But we're walking down a pathway
here.
MR. SHILLINGER: We're walking down a path.
Now, to stay on the tree analogy, to change
positions and direct staff to go though the process to,
initiate the process to take away the prohibition, you
know, staying with the tree analogy, that's closer to the
trunk. We're not as far out on a limb. That's a
position that's easier to defend than our current policy.
It takes on less risk in that you are not taking this
unique policy perspective that we've had in our code for
the last ten years that we're not going to extend, we're
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going to prohibit the utilities running across CBRS units
or into CBRS units. If there is risk associated with a
denial of a development project because of environmental
conditions such as Endangered Species Act or other
federal or state laws, it makes the shift closer to them
as opposed to us using our local code to deny the
development.
I'm getting quizzical looks. Am I not being clear?
COMMISSIONER MURPHY: No.
COMMISSIONER CARRUTHERS: No, you're being clear,
but a little convoluted. I mean, I understand what
you're saying, but I'm not buying it.
COMMISSIONER MURPHY: And I don't understand it.
MR. SHILLINGER: Okay. Well, what I'm saying is
that we made a policy that is outside of the, that puts
us in the first line of defense for a denial of a
project. We've said you can't do this.
COMMISSIONER MURPHY: Yes. Okay. I've got that.
MR. SHILLINGER: And if there are other state and
federal laws that are in play that will never get
addressed because we have said no, any liability that
arises is on us, not the state or the feds.
MAYOR NEUGENT: Do you disagree with that?
COMMISSIONER CARRUTHERS: Well, no, I guess I
understand that. I just don't think that it's
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15 1
necessarily right. And I guess the other issue that I
have is that if you're now saying that these areas that
previously didn't have power do have power now but there
are other reasons why they may not be developable that
might have to do with our code, like the Tier, et cetera,
that makes those parcels, doesn't it, more valuable,
potentially?
MR. SHILLINGER: It may make them more valuable.
That is part of the mix. So --
COMMISSIONER CARRUTHERS: Doesn't it make Galleon
Bay more valuable?
MR. SHILLINGER: It potentially makes it more
valuable, but they are getting allocations. So we'll
deal with that issue at some point.
COMMISSIONER MURPHY: What issue?
MAYOR NEUGENT: Mr. Kolhage?
COMMISSIONER KOLHAGE: I've been trying to get up to
speed on this thing, so you have to bear with me. What
are we, what is the possible outcome in the appellate
case, the case that we're attempting to send Judge
Audlin's decision back to him?
MR. SHILLINGER: Right.
COMMISSIONER KOLHAGE: Okay. What do we hope to get
out of that?
MR. SHILLINGER: The case comes back to Judge
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Audlin, we get a declaratory judgment that our code and
Comp Plan are the controlling bodies of law. This is,
you know, why we filed it in the first place. Declare
our rights under our code and Comp Plan. And the key
portion of that case was there is a statute that allows
the extension of utilities in a public right-of-way, that
it exempts them from the definition of development. The
term public right-of-way is not defined in Chapter 380
where that exemption exists or in Chapter 163 where that
exemption is repeated. It's defined two different ways
in Florida Statutes, and there's the platting statute and
there's the county road statute. One says obviously a
public right-of-way is a platted roadway. These are not
necessarily all platted public roadways. The other one
uses the term more generally, more loosely. And so we
were asking for a judicial declaration of what does the
term public right-of-way mean with respect to the
permits, or with respect to the exemption from having to
obtain permits and being exempt from development.
COMMISSIONER KOLHAGE: Okay. Let me stop you there,
because I'm trying to get to the policy aspect of this.
MR. SHILLINGER: Right.
COMMISSIONER KOLHAGE: The end result, what does
this board want to see? Because it's different now
because the poles are up, the lines are up and energized,
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running in front of the homes. So what is our end game?
Do we want to be successful in requiring Keys Energy to
remove the poles, do we want to be successful in saying,
okay, the poles are up, we can't do anything about that,
but we will never connect you to the power? What is it
policy -wise, getting away from the minutiae for a minute,
what does this board want to do? That's what I'd like to
know, because I don't know how you all feel about it.
MR. SHILLINGER: And that is the bottom -line
question. It's a policy decision.
COMMISSIONER CARRUTHERS: Well, I would suggest that
it's a slightly different policy decision that doesn't
have anything to do with so much the physical aspect on
the poles. I feel like it's a policy decision with do we
uphold our code or not, and if we roll over simply
because someone else has a different opinion about it
here, what precedent would that set for anything in the
future?
MAYOR NEUGENT: May I respond to that? Because here
is my, my greatest concern here, and I think you touched
on it, Bob, and I think it's something that is, in my
opinion, over -harsh. The CBRS is established to
discourage development.
MR. SHILLINGER: Yes.
MAYOR NEUGENT: And it says discourage development.
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And it discourages development by saying that you no
longer can utilize federally subsidized flood insurance,
federal monies, et cetera, and it stops right there.
Correct me if I'm misspeaking. What we've done to jump
right out in the middle of the bus, we've interjected the
word prohibit, and it's something that I've been saying
for years. There is a difference in the definition
between discourage and prohibit. And we are fools, and
I'll go to Galleon Bay and some other cases that are
lining up, when we say prohibit we've just stepped out
there over and beyond what the federal government has
declared as discouraging.
COMMISSIONER CARRUTHERS: Well, that may be true,
but didn't we do that also in response to what the wishes
were of our constituents to protect that area?
MAYOR NEUGENT: Did we tell them that they were
going to have to start buying lands in these takings
cases at the same time we had that discussion? And I
don't think so.
MR. SHILLINGER: And also understand, at the time
when this ordinance was adopted was 2001. That was
pre -Tier System.
MAYOR NEUGENT: This is the overlay?
MR. SHILLINGER: The overlay district, yeah. The
prohibition, the ordinance, it's now at 130-122 in the
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code, the language that has prohibition in there, was
adopted pre -Tier System when we had the habitat
evaluation index where you had eighteen, twenty factors
for a ROGO and there was a desire to have negative points
for areas that didn't have utilities and so we adopted
the ordinance that would discourage the extension of
utilities into areas that didn't have them that were
protected by CBRS.
Now, it can be, you know, one school of thought is
that that calculation is taken care of in the Tier
System. We've already classified those properties as
Tier 1, so we are already discouraging the development,
so that the negative points that were, used to be
associated with being in a CBRS have already been
factored in.
MR. GASTESI: And also, back then National Fish and
Wildlife had not made a determination yet that they're
okay with it.
COMMISSIONER KOLHAGE: Okay. You all don't know how
I feel about this, and I can talk now in this session so
I'm going to tell you. You know, I sat over there for
years watching this commission and prior commissions
struggle with this issue and they voted every time to
uphold the Comp Plan and stuck by it. I'm unhappy about
two things. First of all, Fish and Wildlife walked away
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from this, washed their hands of it, created this
problem. And I'm going to say that when we get into the
public. I'm also unhappy with Keys Energy. Keys Energy
got an opinion from our County Attorney, requested about
the conformity with our Comp Plan, got an opinion from
Suzanne that said okay, we understand, here's the
statute, you're exempt from putting your poles in our
rights -of -way, here's what you can do, however Monroe
County has a problem. We've got this language in our
plan and this language in our code and we can't issue
permits, we don't think we can issue permits to connect.
The project should have stopped right then and there.
The same way that Key Largo Wastewater District has
stopped so that we can take care of this issue, they
should have stopped, but they didn't. Be that as it may,
here we are faced with poles in the right-of-way, lines
up and energized. Now, we can talk about whether or not
we want to uphold the integrity of our plan and all of
the rest of that, but the practical effect of that is
what do you want in the end to do with the service that's
already there? Do we really want them to take it down
and destroy $600,000 of investment even though it's not
ours? Do we want to leave it up and have the absurdity
of having these lines running in front of homes which we
refuse to connect? I don't know. That's what I think,
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that's the bottom -line policy decision.
MR. SHILLINGER: Right. And bottom line, we can
defend, we can find grounds to defend either direction
you take.
COMMISSIONER RICE: Bob, let me ask a question here.
We've really got an issue a little bit beyond No Name Key
here with the sewer situation up the Keys. Is that a
part of our discussion? Because what we do here may or
may not, well, it will affect that one way or the other.
Either they are not going to be able to run sewers there
or they are.
MR. SHILLINGER: Right. Now, again, under the
Sunshine Law we're limited to discussing the cases that
are in litigation and it's strictly construed, so I would
strongly counsel us not to stray into the 905 in the
context of the closed session. We can have that
discussion as part of the open session later on. There
is an item on to talk about that.
COMMISSIONER RICE: Okay. Fine.
COMMISSIONER KOLHAGE: I apologize for --
MAYOR NEUGENT: Hold on. Let's keep some order here
as far as, are you, Commissioner Rice?
COMMISSIONER RICE: Yeah. I had another issue, but
I'll bring it up in a bit.
MAYOR NEUGENT: Yes.
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COMMISSIONER MURPHY: Since when is doing something
that you probably shouldn't be doing an excuse to then
because it's done allow you to continue? What kind of
reasoning is that?
MR. SHILLINGER: The old don't ask for permission,
beg for forgiveness?
COMMISSIONER MURPHY: Yeah, more or less. Since
when does that excuse bad behavior, and since when does
that give a reason to continue?
And to answer Danny's question, I believe the
agreement, and I may be wrong, with the, oh, what is it,
the homeowners' association, the non -solar people, I
believe the agreement was that yes, they'd pay to put it
up and they would pay to take it down if this did not
work.
MR. SHILLINGER: That is my understanding of the
arrangement still.
COMMISSIONER MURPHY: And I'm sorry, Danny, it may
be $600,000 wasted, but they chose to waste it, not us.
MR. SHILLINGER: And we filed a dec action in
advance of doing that just so we, that was our attempt to
get the issues cleared up before they did it so they
wouldn't waste that money unnecessarily. They chose to
move ahead.
MAYOR NEUGENT: Go ahead.
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COMMISSIONER CARRUTHERS: Well, two questions, and
you might not be able to answer the first one because of
the Sunshine, but is the No Name Key extension of
utilities, does it have to be related to the CBRS in
North Key Largo? Do those have to be linked, or not?
Are there --
MR. SHILLINGER: It's the same code and Comp Plan,
so they're at least part of the same discussion. It
would require allowing, again, I don't want to step too
far over the line. Let me just stop at that and say that
they're linked because it's the same code and Comp Plan.
If there are changes, that's a legislative matter that's
beyond the scope of what we can talk about here.
COMMISSIONER CARRUTHERS: Okay. Next question is
what happens if we ignore the settlement agreement and
just let this play out in the court next month?
MR. SHILLINGER: We could let this continue to go on
and see how the courts rule. I don't see where, at least
I haven't been presented with evidence yet that suggests
that we have any real liability in allowing it to play
out in terms of the equal protection claims that
Mr. Smith has threatened. If it turns out that we have
ignored our code and issued permits for utility
connections that were extended into CBRS units after the
prohibition went into effect my analysis might be
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different. I don't know that to be true. I don't know
that to be true. They say they have it. I haven't seen
that evidence. So if that's a key issue, then we'll need
to come back and discuss it.
MAYOR NEUGENT: Hold on one second. Let me go back
to the beginning of this. Mr. Kolhage correctly said
he's sat here and watched this for fifteen years and I've
been involved with it for fifteen years, and initially
when I sat here, and things do change, and when I came on
the commission a strong majority of the residents that
lived out there supported what they had. They didn't
want electricity. There was a minority group of people
out there at the time, small minority, who wanted
electricity, and we said no. Then as things evolved over
this fifteen -year period it's gone from that small
minority of wanting electricity to a super -majority who
now want electricity and are willing to pay for
electricity. Fish and Wildlife weighed in on this, says
there is no negative impact to the species and the
habitat. Then our County Attorney said we have no
jurisdiction in a way to keep them from running
electricity in the right-of-ways out to No Name Key.
We're dealing with a situation that has changed over the
fifteen years, so.
And if, and here's the other thing. Why have we
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interjected ourselves into what I see as a civil war from
warring factions out there? And the Planning Commission
and the Commission on a split put in play the overlay and
then reversed some of that and actually asked for an LDR
change, and again, we're using taxpayer dollars to
interject ourselves into what I see as a civil war.
COMMISSIONER MURPHY: What are those? What are
those taxpayer dollars?
MAYOR NEUGENT: We're involved in this litigation
when we don't need to be involved in this litigation.
COMMISSIONER CARRUTHERS: Well, that's --
COMMISSIONER MURPHY: We're paying salaries anyway.
MAYOR NEUGENT: We have in the Land Development
Regulation the word prohibit. We asked on a split vote
to change that Land Development Regulation, and DCA did
not allow that. The other thing that we need to pay
attention to closely is that DCA, based upon some things
that have happened recently, is no more involved in this.
It is DEO, and they have said if you guys want to go out
on this limb, knock your lights out and you're on your
•INIM,
And I would ask, Steve, when you Googled this did
you Google under Governor Scott's zoning issue? Because
he stood up there and gave a hundred units to Marathon
with no justification and just recently gave another
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hundred units to Marathon.
MR. WILLIAMS: All I looked at is if it was a Zoning
in Progress.
MAYOR NEUGENT: That was supposed to be funny.
MR. WILLIAMS: But it's tough. And most of the
research was not Google. I only took Google to broaden
it as far as I can, because I think, like Bob was saying,
it's hard to find.
MAYOR NEUGENT: And I understand exactly what you
said. I just but, but, and okay, if we wait until
January and get that reading, that's fine, but we have an
opportunity without dealing with the Zoning in Progress,
at least as I would see it, that we'd be doing something
in parallel by accepting that the jurisdiction is going
to happen according to what has been said with or without
US. Right?
COMMISSIONER MURPHY: Accepting what?
MR. SHILLINGER: I'm not sure I followed what you
just said.
MAYOR NEUGENT: Well, you said earlier that the
lawsuit will go on with or without us.
MR. SHILLINGER: Yeah. The appeal to the Third
District will go on unless Alicia --
MAYOR NEUGENT: So that's my point. It's going to
go on, so we can still get the ruling based upon what the
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courts will say or the hearing officer or whoever it is.
COMMISSIONER MURPHY: And what?
MAYOR NEUGENT: And that will, and we at the same
time could enter into the settlement agreement?
COMMISSIONER KOLHAGE: Well, what you said, we can't
accept any of the settlement agreement.
MR. SHILLINGER: Right. And if you're inclined to
go with the policy shift, you recognize that the poles
are up, the lines are strung, the majority want it, and
the other CBRS issues that we can't necessarily talk
about today, the impact, then I would suggest you make a
counter -proposal that in exchange for a waiver of any
claims, real or imagined, that we at least seek, we
acknowledge that we are, we seek a stay in all pending
litigation. We can't necessarily compel it, but we at
least seek it and notify all of the courts that we're
pending in front of that we are in the process of
settlement and it may moot out the actual claims that are
before them. Let me come back to that in a minute. You
direct County staff, Growth Management staff, to initiate
code and Comp Plan changes on a parallel track, in other
words, process them both at the same time, don't do the
code first because DCA has already turned down a prior
attempt to change the code before the Comp Plan. Send
them at the same, you know, process them at the same time
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so that if the code, the code change gets to DCA first
they will see that the Comp Plan is already in the
process and it's just taking a little longer to get
there. That might get around them relying on that prior
order. Agree that you, that this would be a County
initiated, you're proposing that this is a County
initiated proposal, not a joint proposal with
Mr. Reynolds or any of the other people. We want to
obtain control of our own proposal and that we have
agreed to hear it expeditiously.
Now, you can't agree in your settlement agreement to
a particular outcome. At most what you can do is agree
to go through the legislative process. You can't say and
we will adopt a code amendment that will repeal the
prohibition or that will repeal the discouragement
language in the Comp Plan. That would be explicit
contract zoning and that would be voidable by the court.
So our hands are tied in how we can respond. At most
what you can do is say we will agree to stop spending
money on litigation and ask the court to stop it while we
go through the legislative process. If they agree to it,
they agree to it. If they don't, you could still go down
that path if that's the policy decision that you want to
do.
MAYOR NEUGENT: Danny, you asked a couple of
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questions, and I don't think those are easy questions to
answer from the standpoint that I certainly respect and
have friends on both sides of that fence --
COMMISSIONER KOLHAGE: So do I.
MAYOR NEUGENT: -- that live out there. So it's,
for me it's not about tearing the poles down or leaving
them up, and for me the question is I see after having
read the response in the appeal in the Galleon Bay, and I
know they're not necessarily connected, but in reading
that --
MR. SHILLINGER: We have a hostile appellate court
right now.
COMMISSIONER RICE: We sure do.
MAYOR NEUGENT: Well, and even in reading that case,
Bob, I would have to say that I could see how they
arrived at that conclusion and we should have done
something years ago. That's certainly in hindsight a
piece of property that we should have gone out of our way
to buy to avoid the litigation whatever the price was and
to stay away from that. But that's in hindsight.
But, Danny, your two questions --
COMMISSIONER KOLHAGE: But that's the bottom line to
it. I mean, do we want to allow them to hook up or do we
want the service removed?
MAYOR NEUGENT: One thing that I can say without
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reservation is that we've gone a bridge too far when
we've plugged prohibit into our Land Development
Regulations or our Comp Plan. We're asking for it.
COMMISSIONER KOLHAGE: Do we have a way of making
changes to the code that, and I hate saying this, that
accepts the facts as they are but does not endanger the
other areas of the county? I mean, I have an issue with
our inter -governmental failures here between us and Keys
Energy, and we've got to solve that. I am more concerned
about the environmentally sensitive areas, the habitat
areas and so forth, rather than CBRS, I'll be honest with
you, and there are more of them than there are CBRS areas
and more of them can be impacted by this. But do we have
a way to fashion a plan, code amendment, whatever it
takes, to come to a conclusion on the No Name Key issue
without imperiling, making such a broad change that it
puts these other areas in danger?
MR. SHILLINGER: That's a tough question to answer,
you know. I --
MAYOR NEUGENT: Doesn't the Tier System do that,
Bob?
MR. SHILLINGER: The Tier System does that, but the
Tier System can change as people go through the
re -tiering process once more of the development gets
built out. I would suggest that there is a provision in
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the Comp Plan, and Christine can explain this far better
than I and unfortunately under the Sunshine Law she can't
be in here to explain this with precision, but there is a
provision that allows for essentially an environmental
assessment as to whether a Comp Plan provision which
might otherwise prohibit an activity is judged on an
environmental basis as to what's the best outcome for the
environment, and that language would solve this problem
but for the prohibition language --
COMMISSIONER KOLHAGE: Okay. All right.
MR. SHILLINGER: -- in the code.
COMMISSIONER KOLHAGE: If we, in terms of this
closed session, if we went ahead with something like
that, and I've spoken to Christine and she showed me that
section and I know what you're talking about, or I think
I know what you're talking about, that could be an offer
of a settlement generated by Monroe County, not other
parties, in a way that the staff and the legal staff
thinks is the best for Monroe County. Whether or not
they accept it or not, I don't know and almost don't
care, but --
MR. SHILLINGER: What I would caution us is not to
make a proposal, concrete proposal, as to how we are
going to plan to change our code.
COMMISSIONER KOLHAGE: Okay.
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MR. SHILLINGER: Otherwise we run afoul of contract
zoning. All we can do, the best we can do is offer to
reconsider it and go through the legislative process and
give them due consideration and expeditiously process it.
COMMISSIONER RICE: Without specifics?
MR. SHILLINGER: Without specifics as to the
outcome. We will consider it --
COMMISSIONER KOLHAGE: But at some point we've got
to come up with an idea of how we're going to --
MR. SHILLINGER: Yeah. Absolutely.
COMMISSIONER CARRUTHERS: We can keep considering
it.
COMMISSIONER RICE: I think there is a way to do it.
MR. SHILLINGER: There may be a way to do it. We
just can't incorporate the way into the settlement
agreement or else we run afoul of contract zoning.
COMMISSIONER KOLHAGE: The only reason I'm saying
that is because we want some way to stop the bleeding in
all of this litigation. That's the only reason I'm
saying that.
MR. SHILLINGER: I understand. And if I can respond
to that point before --
COMMISSIONER MURPHY: Go right ahead.
MR. SHILLINGER: I don't, I would reasonably expect
that no matter which policy decision you ultimately make
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we will end up being in some sort of litigation, whether
it's a challenge to our process from Alicia or the solar
community or the citizens' coalition or whether it's a
continued challenge from the other side, from the
property owners that desire power. So if you're looking
at numbers at least from the people who have been willing
to sign pleadings and go on the record, you have more
people that are willing to litigate over the right to get
power, perhaps because they don't have it and they want
it, than you have the people that are willing to
participate in litigation to keep the status quo.
COMMISSIONER CARRUTHERS: Well, unless Daryl Hannah
starts putting up some of her money.
COMMISSIONER KOLHAGE: Then I'm liable to change my
mind.
But do you have something that we can act on in the
open session?
MR. SHILLINGER: What I would suggest is that you
do, I've outlined four bullet points, that we make a
counter -proposal that if you wanted to go down this path
that you do something along these lines, and that is to
propose a stay in all of the litigation, including the
Newton appeal.
Let me take a minute to explain that one. That's
the person who has the line out in front of his house and
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he wants to connect it. The time clock is running.
MAYOR NEUGENT: And we gave him the permit.
MR. SHILLINGER: And then we took it back.
COMMISSIONER KOLHAGE: Well, he's not going to be
happy.
MR. SHILLINGER: No. No one's going to walk away
happy with this proposal. No one the dais --
COMMISSIONER KOLHAGE: Is that number 2 bullet, is
that specific enough for staff to know what to do?
MR. SHILLINGER: I believe that that's enough to,
that's all you should have in a settlement proposal, and
then you can have your discussion on the substantive
matter in the context of the item on the 905, and that
might give further direction to staff as to how --
MAYOR NEUGENT: Well, Mr. Kolhage, though.
COMMISSIONER KOLHAGE: I'm going to shut up now.
COMMISSIONER MURPHY: Oh, it doesn't really matter
at this point because we all know which way Bob
Shillinger is pushing us.
MAYOR NEUGENT: You now have suggested, at least in
my interpretation, that there may be three votes to do
that.
COMMISSIONER KOLHAGE: No. I don't know.
MAYOR NEUGENT: Well, I mean, if we take that, that
means it has to direct staff to process initiating code
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and Comp Plan amendments.
COMMISSIONER KOLHAGE: Yeah, there has to be a vote,
but I don't know how it's going to go.
MAYOR NEUGENT: I'm not saying you know how it's
going to go, but there will be a need for three votes to
do that.
MR. SHILLINGER: Yeah. You would need three votes,
you need a majority vote to give staff direction to do
something. And that staff direction could be maintain
the status quo. I'm outlining your options. If you want
to go in and change, this is the most you should do.
Otherwise you're setting it up to certain defeat. If you
accept the Tobin proposal as stated or you accept the
Smith proposal as stated, you're setting them up for
certain defeat and wasted time on everybody's part. This
is the farthest you can go. You should go. If you want
to keep and maintain the current process and the current
policies, those are defensible, and we're ready to defend
them and continue the litigation.
COMMISSIONER CARRUTHERS: Do we have to offer the
second bullet?
MR. SHILLINGER: Well, what application are you
going to hear expeditiously if it's not one from us? One
from them? We'll consider your proposals?
MAYOR NEUGENT: We're either going to do something
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or this is going to go on forever.
MR. SHILLINGER: Yeah.
COMMISSIONER RICE: Bob --
MAYOR NEUGENT: Sylvia?
COMMISSIONER MURPHY: Don't bother.
MAYOR NEUGENT: You're done? Okay.
COMMISSIONER MURPHY: I am done.
COMMISSIONER RICE: I have a question. And I'm not
sure if you can answer this one either, Bob. Does the
fact that other CBRSs have electricity increase our
liability on any front in a future action? Now, some
have said that because they had the electricity before
the CBRSs were established --
MAYOR NEUGENT: No. The overlay.
COMMISSIONER RICE: The overlay, whatever.
MR. SHILLINGER: Right. The overlay district. That
does not harm us. That's our defense. Now, if we have
issued permits since then to connect and the line was
preexisting, that's a distinct classification. If the
line got extended since the prohibition went into effect
and we had issued permits, that does place us in
jeopardy.
MAYOR NEUGENT: Has that happened?
MR. SHILLINGER: I don't know that that has
happened. That's a good question for Christine and Jerry
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Smith in dealing with those issues for the Newton appeal.
MAYOR NEUGENT: But isn't it fair, Bob, also to say
that because of that overlay, County Commission, you put
yourself in the crosshairs?
MR. SHILLINGER: You decided that you want to effect
a certain policy direction that is out front on the
extension of utilities to these areas that is, you've
opted to do that. You were not obligated to do that.
COMMISSIONER KOLHAGE: Well, we weren't obligated to
take the entire CBRS and put it into our code.
MR. SHILLINGER: That is correct.
COMMISSIONER KOLHAGE: That's a federal prohibition,
and it's important, I think, to know that even if were to
take it out of our Comp Plan and code, it still applies.
MR. SHILLINGER: It would still apply and still
discourage development, and in the legislative process
you could modify your code and your Comp Plan to still
discourage new development in the CBRS areas, but that's
a decision you'd have to make in the legislative process.
COMMISSIONER MURPHY: And how do you discourage it?
MR. SHILLINGER: Well, you could give --
COMMISSIONER RICE: Do you want me to answer that?
MR. SHILLINGER: If you've got an idea.
COMMISSIONER RICE: Well, yeah, you've heard the
idea before. Keep the CBRS but give a negative point.
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2 1 point?
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COMMISSIONER RICE: If you've got property within
the CBRS. That's one way to do it.
MAYOR NEUGENT: Or you give positive points for a
deed restriction that you wouldn't connect to utilities
or, I mean, there's different ways to handle that.
COMMISSIONER MURPHY: That federal regulation also
states that you may not do something in the CBRS using
federal money, right?
MAYOR NEUGENT: Right.
COMMISSIONER MURPHY: Which is more, so you'd be
building it on your own.
MAYOR NEUGENT: Right. That's the discouragement
that the federal government takes.
MR. SHILLINGER: You can have a discouragement that
says you won't get any County subsidy for whatever
development that there might be.
MAYOR NEUGENT: Well, then you're right back where
we are.
MR. SHILLINGER: Well, you're not right back where
you are. You're not giving a subsidy. You're not, as
opposed to prohibiting.
COMMISSIONER KOLHAGE: What I'm more concerned about
is are there any CBRS areas that are not also restricted
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because they're environmentally, come under our
environmental restrictions?
MR. SHILLINGER: I can't answer that here today. I
don't know the answer to that question. That would be a
good question to ask during the open session.
COMMISSIONER CARRUTHERS: Just some issues to, I
guess, throw out there. I've been, I've heard that the
Fish and Wildlife letter that we're all, you know,
pitting everything on was not necessarily vetted or
approved by federal Fish and Wildlife and could be
subject to challenge.
MR. SHILLINGER: I don't know if the letter would be
subject to challenge, but the opinions may not be the
same once they take a look at it if there's a development
proposal that would impact listed species.
COMMISSIONER KOLHAGE: I don't understand that.
COMMISSIONER CARRUTHERS: Well, the call that I got
was that whoever wrote that opinion didn't really vet the
issue.
COMMISSIONER KOLHAGE: And that could be, but does
that mean that Keys Energy did not have the right to rely
on it?
COMMISSIONER CARRUTHERS: Well, that's what I, I
mean, I don't know. And if they rescind it or change
their opinion, what does that mean?
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COMMISSIONER KOLHAGE: Well, it's too late.
MAYOR NEUGENT: And I would say that and, look, that
letter's been out there. If anybody wanted to say, hey,
that's not the case, I can assure you that that would
have happened.
COMMISSIONER KOLHAGE: That, oh, I'm sorry, we
shouldn't have said that?
MAYOR NEUGENT: Well, and --
COMMISSIONER MURPHY: Not until it goes to court.
MR. SHILLINGER: And that might be a fight between
the solar community and the Fish and Wildlife Service and
the utility and the customers of the utility.
MAYOR NEUGENT: My question, Bob --
MR. SHILLINGER: But that's not a fight that we'd be
jumping in.
MAYOR NEUGENT: Once again, I would like for me
personally to remove ourself from this and if these guys
want to continue their war and battle, have at it, and
they can spend their own money fighting it.
COMMISSIONER KOLHAGE: And what the board, that's a
wonderful thought, but does that mean we continue to deny
the connections?
MAYOR NEUGENT: No. No. Not if we're talking about
changing our code and Comp Plan. So that would be the
first question to be answered, and then after that we
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need to extricate ourselves from this. As soon as, if
there are three votes to change our Comp Plan and our
code, then at that point in time how do we extricate
ourself from the litigation that's taking place?
MR. SHILLINGER: If you change the code and the Comp
Plan the current litigation would virtually all be mooted
out. They may claim their rights have been violated.
MAYOR NEUGENT: That's a year down the road.
MR. SHILLINGER: You will be dealing with a
challenge predictably from the environmental side on
process. I think that you legislatively would have
within your discretion to not have this prohibition in
your code. There's no requirement that you do it. Your
predecessors have made a legislative decision to do that.
I don't think, I don't foresee any liability that
attaches for the legislative decision. It's the process
issue. So you'd have to go through the process
correctly.
MAYOR NEUGENT: Hypothetically if the County
Commission says you no longer have any funding to perform
the litigation, what happens?
MR. SHILLINGER: If you instruct us not to
participate in the litigation, not to defend it, not to
do anything, well, then you lose control of everything.
MAYOR NEUGENT: What is that?
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MR. SHILLINGER: Well, the other -- here. The other
answer is under the Florida Environmental Protection Act
any citizen or a State Attorney or maybe the Attorney
General has the grounds to file an action to force us to
enforce our environmental regulations, so as long as it's
on the books --
MAYOR NEUGENT: Who said anything about not
enforcing our environmental regulations that are required
to enforce? We're not forced to be in this litigation,
are we? Are we forced to be in this litigation?
MR. SHILLINGER: Let's go back to the list and, all
right. The first one, no. We brought that ourselves.
We can dismiss that tomorrow. Now, there were
counterclaims that were filed in that, which means they
countersued us, but if we let go of our case, their
counterclaims was to force the issuance of the permits,
so I think that it would go away. The Putney appeal
which we joined into we could step out of and let her and
Reynolds fight that out. The Reynolds, Keys Energy, PSC
thing, we got permission to intervene in that. We can
move to extricate ourselves. So we could do that. The
Newton Planning Commission appeal, Mr. Newton's permit,
he's, it's an administrative proceeding for us to defend
our Planning Commission's permit decision. We're in
that. Now, of course we could sit on our hands and let
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him go speak to an empty courtroom and let the chips fall
where they may. Is that good governance to let that
happen? I would suggest no.
MAYOR NEUGENT: Well, no, but worst case scenario,
what, the court directs the County then to issue the
permit against our Comp Plan?
MR. SHILLINGER: Yeah.
COMMISSIONER CARRUTHERS: You know, Bob, we talked a
little bit about this going forward. One thing that,
regardless of all, everything that we're going through
right now, that we need to try to do at the state
legislative level, I think, is introduce some kind of
legislation that requires utilities to coordinate with
local governments in Areas of Critical State Concern
before they spend --
MR. SHILLINGER: Right. And in the context of what
we're discussing here, I would seek an agreement to
coordinate with Keys Energy. I can't say that the Keys
Energy board would agree to that. They've obviously --
COMMISSIONER MURPHY: Obviously not.
MR. SHILLINGER: Or they might have expressed an
intention to do it, but would they agree to terms that
would be binding on them? Probably not.
COMMISSIONER KOLHAGE: We should have those
agreements with all the utilities in this county.
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COMMISSIONER CARRUTHERS: Yeah. Exactly.
MAYOR NEUGENT: Okay. Well, let me ask you this.
The Florida State Statutes clearly state the rights of
the utilities.
COMMISSIONER KOLHAGE: Yes.
COMMISSIONER CARRUTHERS: That's what we're saying.
MAYOR NEUGENT: So you think that the legislature is
going to change those state statutes?
COMMISSIONER KOLHAGE: But the thing is, George,
with Critical Concern, hate to keep bringing that up, but
we have the responsibility to do these things and to
provide these protections over things that we have no
control, and utilities is one of them and it's one of the
most important.
MR. SHILLINGER: And before we go too far down that
path, I mean, I don't disagree with that. We're outside
of the context of our closed session.
MAYOR NEUGENT: Has anybody been any more
environmentally conscious than Monroe County with all of
the battles that we've fought over this, of which I have
been in many of them, in protecting the environment, et
cetera, then --
COMMISSIONER KOLHAGE: It's not Monroe County. It's
the utilities.
MAYOR NEUGENT: I know, but they didn't do
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anything -- Fish and Wildlife said that there's no
negative impact.
COMMISSIONER CARRUTHERS: Yeah, but they didn't need
to go ahead --
MAYOR NEUGENT: But they had the right to do it.
COMMISSIONER KOLHAGE: I understand that, but it's a
perfect comparison with Key Largo Wastewater. They saw a
problem and they stopped. Keys Energy was notified,
Suzanne had told them we had a problem, but they went
ahead anyway. That's not coordination.
MAYOR NEUGENT: And again, I don't disagree with
that.
COMMISSIONER KOLHAGE: And so what I'm saying is try
to get cooperative agreements with them. But if
anybody's recalcitrant about it like Keys Energy, then
we're going to have to have legislation or else don't
hold Monroe County responsible.
MAYOR NEUGENT: So what's wrong with those Conchs
down there?
COMMISSIONER CARRUTHERS: Money. You know, if they
had just, Keys Energy had just looked at this completely
differently and said let's really make this a solar
community, let's build an array out there and allow
people to, you know, we'll build a facility with
batteries to store energy.
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MAYOR NEUGENT: Have their own little mini -coop.
COMMISSIONER CARRUTHERS: Yeah. If they had done
that, you know, it probably would have cost them as much
as they're spending on all of this stuff so far.
MAYOR NEUGENT: But I know and talk to a lot of
solar folks all the time, and the one thing they want to
do is any excess capacity that they create they want to
sell back to the utility.
COMMISSIONER CARRUTHERS: Well, absolutely, but they
could have sold it back to a storage facility on No Name
Key without having to connect to the grid in this way.
I'm just saying that there would have been other ways to
provide the service in a way that could have made both
sides happy.
MAYOR NEUGENT: I don't, I think that is clearly an
impossibility.
COMMISSIONER CARRUTHERS: Well, it is now.
MAYOR NEUGENT: It always has been.
COMMISSIONER CARRUTHERS: Well, or maybe I should
say equally unhappy.
MR. SHILLINGER: All right. I'm sensing there's not
uniform direction on the board.
COMMISSIONER RICE: I think you're sensing it
correctly.
COMMISSIONER CARRUTHERS: I think you are, too.
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MAYOR NEUGENT: Well, you have direction. You know
we can't accept either of those settlements.
MR. SHILLINGER: You can't accept either of those.
So if you were going to have some direction we would do
it at the open session on the placeholder item, which is
P-3, if you want to have a discussion as to what
direction to give. I've given you a suggestion as to
what, if you want to go down a policy track, this is as
far as you should go in making your proposal.
COMMISSIONER MURPHY: Now, what can we discuss at
the open meeting?
COMMISSIONER RICE: Those four points, I think.
COMMISSIONER MURPHY: No, no.
MAYOR NEUGENT: Did you ask a question?
COMMISSIONER MURPHY: What can we discuss at the
open meeting?
MR. SHILLINGER: Without violating the
attorney -client privilege, I would suggest do not get
into our analysis of the strengths and weaknesses of any
position.
COMMISSIONER MURPHY: No. That isn't what I meant.
MR. SHILLINGER: That's what I'm most guarded about
because we don't want to have the transcript stuck in in
front of a hearing, whichever policy decision you make,
and say the County Attorney said X.
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COMMISSIONER MURPHY: When we hear this in public
does it connect with Key Largo being here?
MR. SHILLINGER: You can talk about Key Largo in the
public session. Those limits are only in the closed
session. You can talk about proposed legislative
changes, you can talk about, you know, how you want to
link it to just about everything. You don't have the
same constraints on subject matter that we have here.
MAYOR NEUGENT: Can I bring up one question in here
that --
MR. SHILLINGER: Sure.
MAYOR NEUGENT: How is, we've got fifty million
dollars we're trying to get out of the legislature, of
course, and some of it's going to Key Largo. Is, I
personally think that we look pretty ridiculous in all of
the efforts that we've been making as far as wastewater
and then we're going to deny a group of people that they
can't hook up to central collection, and my question to
the Commission and to you, how is that going to resonate
in Tallahassee?
MR. SHILLINGER: That's a question for the open
session, not for here.
COMMISSIONER KOLHAGE: Can we say during the open
session that we cannot legally, based on the advice of
counsel, accept either of the settlement options?
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MR. SHILLINGER: Yes. And I will tell, I will go
through those reasons if you'd like me to do that during
the open session.
COMMISSIONER KOLHAGE: All right.
MR. SHILLINGER: I have no problem with doing that.
COMMISSIONER CARRUTHERS: And my question about the
other four bullets that you've got here are can't we, do
we have to make a decision about this now, or can we wait
until after the district court rules?
MR. SHILLINGER: You could do you that. I would
suggest that before ruling parties, all parties have an
incentive to try and control the outcome. After a ruling
one party is usually smiling, the other party is usually
frowning, and so your relative positions of strength are
different.
COMMISSIONER CARRUTHERS: But if we're frowning
after the ruling we're still going to be doing the same
thing, so --
COMMISSIONER RICE: Except for here everybody
frowns, because I don't think this makes anybody happy,
really. That may be the definition of the best we can
do.
COMMISSIONER CARRUTHERS: At least if we let the
ruling happen we almost have some cover for doing this.
MAYOR NEUGENT: It could happen without saying that
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we want the ruling to happen because we could have
another meeting concerning this.
COMMISSIONER KOLHAGE: Is there going to be a
ruling?
MR. SHILLINGER: Yeah. There is an oral argument
scheduled for January 14th, but then his schedule
typically goes no sooner than three weeks is usually the
way it works, could be a month, could be six months,
could be a year, could be five years, but typically it's
a month to six weeks the Third will come out with its
ruling.
COMMISSIONER KOLHAGE: Okay. But that assumes that
there's a majority on this board that wants the policy
outcome potential of that hearing.
MAYOR NEUGENT: I'll go on the record to say that I
want to exclude prohibit from our Comp Plan and our Land
Development Regulations. I'll go on the record and say
that right now.
COMMISSIONER KOLHAGE: And I'm going to say that I
don't want the outcome of that thing, if it were the best
possible, I guess, for the County to confirm that the
County is in a correct position.
MR. SHILLINGER: The best outcome of that hearing is
that Judge Audlin erred, from our current posture in the
litigation the best outcome of that hearing is that Judge
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Audlin erred when he dismissed the case and said he did
not have jurisdiction to hear it and so the case would be
remanded back to him and he would have to hear it and
then we would be back at square -- well, maybe not square
one but square two in the litigation, a little bit of
discovery, tee it up with some motions for summary
judgment, maybe some argument, maybe a trial, and we
hear, and Judge Audlin rules on the declaratory judgment
action.
COMMISSIONER KOLHAGE: Okay. How do we want him to
rule?
MR. SHILLINGER: Well, if we're upholding the
current position of the County, which is our code, we
have jurisdiction over the issuance of building permits
and our code says prohibit, we prohibit the connection of
these houses to the lines and we have, our Comp Plan and
our code say that lines should not have been drawn, we
would seek an order to demolish those from the, remove
those structures.
COMMISSIONER KOLHAGE: So from a policy perspective
I don't want either of those two things to happen.
MAYOR NEUGENT: Will that come before us based upon
the ruling of the Planning Commission? Can the County
Commission be appealed to?
MR. SHILLINGER: No. You're not in the loop for
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that. You've taken yourselves out of the loop.
Presumably whoever wrote that code didn't want to be
sitting here hearing every variance and permit appeal.
MAYOR NEUGENT: So Newton and every house that those
power poles run by are hung up in that decision by the
Planning Commission?
MR. SHILLINGER: Yes. Others haven't applied
because they're waiting to see how Newton comes out.
MAYOR NEUGENT: What if somebody else applied --
well, the staff would deny that.
MR. SHILLINGER: And it's not to say that Reynolds
might not take a flier and try and file some sort of
civil rights action and we end up trying to defend this
in a fifth court and we have to defend it.
MAYOR NEUGENT: Bob, I see us walking straight down
the path to federal court.
COMMISSIONER CARRUTHERS: Yeah, but we're going to
be walking down it one way or the other.
MAYOR NEUGENT: No, I don't see that.
MR. SHILLINGER: I think there will, there's a
different, we will be in litigation regardless. It's
which form. And I think that if we effect a policy
change if we get the direction and you do the steps
correctly you will be in an administrative proceeding in
front of DOAH hearing officer in a Chapter 120 proceeding
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sometime in the distant future. Within the year.
COMMISSIONER CARRUTHERS: It seems to me that there
are almost like two different issues that we have to
address. One is this whole issue of litigation. But the
other is complying with the DCA's directive of making our
Comp Plan and our LDRs constant.
COMMISSIONER RICE: Making them what?
COMMISSIONER CARRUTHERS: Constant. Making them --
MR. SHILLINGER: Consistent. Yeah. The prior
attempt to change the code before you changed the Comp
Plan was rejected by DCA in 2008 or 2009, I think, Susan,
was the order?
MS. GRIMSLEY: 2008.
MR. SHILLINGER: 2008. And that said you needed to
do the Comp Plan first. Now, back then we were still
limited to two Comp Plan amendments per year, and I
believe that that requirement's been removed. So that
was part of the sequencing decision, if I remember back
that far.
MAYOR NEUGENT: Explain to me, Bob. The Comp Plan
as I read it is fine. It's the LDR which is a component
of the Comp Plan that is not correct.
MR. SHILLINGER: DCA read it that discourage, you
know --
MAYOR NEUGENT: DCA as it existed then no longer
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54 I
exists.
MR. SHILLINGER: Well, I understand that. We have
to deal with that final order, at least in some measure.
That's why I'm suggesting if you want to go down that
path you address the Comp Plan and the code provisions on
parallel tracks.
MAYOR NEUGENT: Haven't we beaten this horse enough?
COMMISSIONER CARRUTHERS: Well, I'm not sure what
we're going to talk about in the --
MR. SHILLINGER: I would suggest that you hear the
905 issue first so you can have some of the substantive
discussion with Planning staff, Growth Management staff,
to fully inform the discussion, and then when we bring
back item P-3 we can have that discussion, as well.
COMMISSIONER MURPHY: What has happened to Derek
Howard?
MR. SHILLINGER: He's still with us.
COMMISSIONER MURPHY: Well, I know, but he was
handling this No Name Key and he was coming up, standing
in front of us and explaining it. What has happened to
him?
MR. SHILLINGER: He's available if we wanted to have
him here. He wasn't planning to be in the Keys this
week.
COMMISSIONER MURPHY: Is he still living up in
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Virginia?
MR. SHILLINGER: West Virginia.
COMMISSIONER MURPHY: Going to school, whatever?
MR. SHILLINGER: Yes.
MAYOR NEUGENT: Okay. We're done?
MR. SHILLINGER: We're done. So the closed session
is closed.
MAYOR NEUGENT: Five-minute break.
(Proceedings concluded at 3:19 p.m.)
55
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56
C E R T I F I C A T E
STATE OF FLORIDA )
COUNTY OF MONROE )
I, Susan L. McTaggart, Court Reporter and Notary
Public, State of Florida at Large, do hereby certify that
I was authorized to and did report by stenotype the
proceedings in the above -entitled matter, and that the
transcript is a true record of said proceedings.
Dated this 22nd day of December, 2012.
V'ue_-n " yy7c i��
Susan L. McTaggart, Court Reporter
All Keys Reporting - Court Reporters - (305) 289-1201
Locations in Key Largo, Marathon & Key West
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- •-•,•Ai •
• • . • . . „ . • .• • • .
• • • .• • • •• • • • • • • • • • • _ • • _
. - _.• ' - ,
• . - _ _
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•
MONROE COUNTY. . . -
CLOSED • SESSION
. .
December- 2012. .
12, •
• Marathon , Florida • • •
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4 Pending M
• Monroe Countyv. UtilityBoard of Cityof KeyWest KES
CA K 12-549 trespass & . injunctive relief action
p
Putney (& Monroe County v Reynolds, 3D12333:
a eal of dismissal of 2011 dec action. bc of jurisdictional
pp
• Reynolds v. UB.CKW (KES), PSC• 1.20054-EM —
administrative action before Public Service Commission
• Newton v. Monroe Countya eal from Planning— pp
Commission Resolution P44-2012 gpermits den in for
Y
Newtons to connect -
. .
. , . .
. . , .
. . .
AttorneyClient Privle e g
Reminder• ' .
• Our discussions today in the closed session are covered ; .;. •
by fhe attorney client privilege.
The privilege exists until the. ,
end of the litigation and. - .. •. •
provided that the contents of the discussion are not .• •
• . revealed to third parfiies. • • ..'-. .•• •• • • • . •
Closed Session Limits . .
• Settlement negotiations
• Strategy session regarding litigation expenditures
• Can't make decisions or give definitive direction in closed
session.
. .
a
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• The Player . • , _.® M/M Reynolds & M/M Newton — Bart Smith .
NNKPOA & 22 ropowerproperty —
p owners AndyTobin
Putney, •Barber, & M/M Harlacher (solar) — Robert Hartsell
UtilityBoard/Keys EnergyServices — Nathan Eden •
. ..
County's legal team — Derek Howard & Steve Williams
attorne s . _ -
for PSC issues Schef. Williams
• plus y & Jay LaVia
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Reynolds/SmithSettlement P•
Four Terms
• • Stay of all litigation with dismissal u on com letion ofp p
terms
• Immediate connection to the .rid withp.ermits _& on
g rely
zoning in. doctrine to authorizepermits
g
• Joint application to amend comp lan & code •
pp p p
® Dismissal of trespass/injunction action -withoutprejudice
. .
•
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_ :::
Four Options to Implemont 4 Core
Terms .
• Option 1 — Countyadmits no over lacemen f
authority placement
utilities on ROW including all NNK roads or over
connection of homes to MC can inspect connections
grid ,
to ensure compliance to code. .
• Option 2 — Countyreco nizes PSC jurisdictionpre.-ernpts
g
County com rehensiveplan & code p
• Option 3 —. Count -Y acce is Judge Audlin's rulinpg and
appeal a eal to Third DCA
• Option 4 — Open to other o tions that achieve 4 termsp
•
Tobin Approach ..
• Has asked. Third DCA to reverse Judge Audlin's order of
dismissal and remand case back to trial court for a
• declaratory judgment.
• Believes quicker and more certain Smith/Reynolds approach
• BOCC make the following findings
• MC agree that the transmission line is not governed by 130-122
(acknowledge that it is .located within a "public ROW")
• Transmission line is not "future growth", and is better option from
environmental perspective. - solves Bahia & Dolphin subdivisions
o Minor deviation of transmission line over County lot is not fatal to . .
project as a whole - solvers Island's End.
. . „ . _ , „
, . . .
Our Assessment of Pro owls
p
•Tobin — proposed findipgs are inconsistent w/ plan & code
•Smith - can't issue. permits- under code s. •
•Smith — we'd lose legal challenge to permits issued ••• • • •
•Smifh - zoning in progress shield not a sword • ••
!Smith. ‘ PSC pre-emption forfeits argument for future
Smith — County •doe$ not control Third. DCA aPpeal., •• . • • .. .
>{u
CountyAttorney Assessment
Current policies are defensible — not too far out on a limb:
Change in policy to authorizing power — "closer to the
trunk"
Easier to defend
Takes on less risk of liability
Shifts potential risk to Federal and possibly State
Prohibition of less importance under Tier System
In short, we can defend whichever policy decision Board:
makes. Both choices will result in continued litigation .
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Cou.ntyRecommendation
If the Board recognizes that thepoles are u the lines are
g p,
strung, a majorityof affected NNK residents desirepower at their
own cost, and that other CBRS areas are negatively impacted,
make a COUNTER PROPOSAL that in exchange for a waiver of
all claims (real or imagined),
®Seek stay in all pending litigation Including Newton appeal
Direct staff to process Countyinitiated code & com lan
pp
amendments on parallel track (DCA Final Order)
Agree to process hear application expeditiously
Y
-Coordination on future extensions (KES)
•
Warning — if agree to change code & plan in certain way, Court
can void changes under contract zoningdoctrine.
g
. . . . . . . •
• Directio • - • •
n • • • •• • ••••. :
• Must be given, at open session (item P-3) . • • •-• • • • .
•• • • • Suggest hearing 905H issue (Item. KI ) first so Qi'f .gpt, ' .• • r . . • . •
Growth Management input on policy in that cOn.text. .7. _ . • •.
. .
. .
• • Future closed session in January in case need for further •
• discusion78 • - . • - - •'•