On the Mark: An arbitrator need not replace memory

MARK STRAIN

Lawsuits began flying fast and furious last week involving Jackson Labs. One issue at stake is whether or not it takes three or four commissioners to make a decision concerning site specific zoning in the eastern part of our county.

With Commissioner Tom Henning casting the only dissenting vote, the County Commission voted to ask a retired judge to determine what the commission’s intentions were when they voted for the rules governing the development of the rural lands area. By doing so, they may impact every landowner’s right to a fair and equal process in Collier County.

The issue brings into question the zoning process for the entire 195,000-acre area of the rural lands. If the schedule remains intact, on December 14th, the commission will be asked to vote on a rezoning issue for Ave Maria that may determine the future of Jackson Labs. Newly elected Commissioner Georgia Hiller will have assumed her duties by then and there are some rural landowners who would love to have the arbitrator’s decision prior to that date.

Ave Maria is located in the Rural Lands Stewardship Area (RLSA), which is an area afforded special treatment in our countywide Growth Management Plan (GMP) through what is called an “overlay.” There are many overlays widely distributed throughout the county within our growth plan and each overlay provides specific details as to how the land within them can be developed. Overlays vary in size and they can provide a broad range of direction for flexibility in future development. Once the overlay is in place within the GMP, there are usually follow-up regulations created in the Land Development Code (LDC) to further detail the manner in which development can occur once site specific information is better known.

Our growth plan provides the ability to seek zoning changes and in a similar manner the overlays expand that ability in more detail; providing the ability for parcels of land to be zoned into any of the allowable uses listed within the overlay. The Land Development Code then provides additional requirements like setbacks, building heights, landscape buffers and parking requirements that site specific zoning requests must abide by. Both the GMP and the LDC must be in alignment when determining what can be developed and where.

A four-fifths vote for the zoning of land has been required since 1967 when a special act within the laws of Florida required that all zoning acts within Collier County would require that a minimum of four of the five members of the governing body (the Collier County Commission) approve the change in order for it to take affect. If zoning is to be changed on a piece of property, it is required to have a 4/5ths vote. It has been that way for more than 40 years.

Unfortunately we do not have term limits for county commissioners in Collier. Our current board has been in place for a very long time, certainly long enough to know the rules have not changed since they were originally elected.

The question placed before the commission last month by the RSLA property owners when this arbitration issue came up was simple: what was the commission’s intent when enacting the RLSA rules and did they intend to retain the 4/5ths vote for zoning in that area? Since the commission can not legally remove the requirement through the overlay process even if they wanted to, there doesn’t seem to be much point in even asking that question, but there you have it. Perhaps the landowners thought the commission was unaware of the 1967 special act they have been working under since the day they took office. Unlikely, after all every other landowner has had to live with the same rule.

You would think that during the meetings that took place in 2002 and 2003 while forming the RLSA language, that if such a radical departure from normal proceedings was anticipated, it would have been brought up for discussion…yet it wasn’t. Despite the fact that the same commissioners are still in office, they were not willing to answer a pretty basic question that only they should know the obvious answer to.

Instead, in order to provide cover for themselves, the majority of commissioners voted to have a retired judge act as an arbitrator and tell them what their intent was. If the arbitrator goes along with the RLSA landowners, the commissioners will most likely use that decision to convince themselves that their intent was a simple majority vote. Even if they decide to do so, such a decision will still be inconsistent with our special act and our code of laws and discriminatory to all other landowners in Collier County.

It is absolutely inconceivable that a sitting board of county commissioners, the same board that voted in the RLSA years ago, could make a determination regarding their memory of events during their time in office.

Short memories equals’ all the more reason for shorter terms.

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