I’m not sure if lawyers have a term for it, but were she a baseball player, Collier County Commissioner Georgia Hiller would have been said to have “worn the collar” Tuesday. Or, in the alternative, suffered through an 0-fer.
Three times, Hiller — the only attorney on the commission — put on her legal hat and three times had that hat handed to her, ending up on the short end of 4 to 1 votes and generating a fair amount of displeasure from other attorneys in the room.
Up first was Hiller’s contention that the county need not pay Barron Collier Co. some $1.8 million for panther mitigation credits as called for in a contract signed in 2009.
Builders, including the county in the case of road construction, sometimes have to pay money to offset the damage done to wildlife by their projects. The payment can take the form of money used to buy development rights on undeveloped land, in essence guaranteeing that land won’t be developed. Such was the case when Collier County expanded Oil Well Road.
The county agreed to pay Barron Collier $1,200 per unit of panther mitigation in 2009. Since then the price of land, and the price of development rights on land, has dropped significantly.
Hiller argued that the agreement gives the county the right not to buy the units from Barron Collier Co. and to seek a better price. “It appears clear this was an options agreement,” Hiller said.
Many in the room disagreed with her.
County Attorney Jeff Klatzkow said the contract was originally a back-up plan to the county’s preferred option of getting state permission to take development rights off land the county already owns to offset the environmental damage from the road project. That permission never came through so the payment to Barron Collier is required.
“To be blunt, this was an insurance contract. We hoped to get the panther habitat units off our own property. We didn’t get that,” he said. Klatzkow said the price in the contract is below what panther mitigation units were going for in 2009.
While he opined that the contract with Barron Collier is binding, Commissioner Tom Henning noted that units might be gotten now for less.
“Now you can. The world has changed,” Klatzkow responded. “If the purchase price had gone up, we would have been insisting on this deal. Hindsight is easy.”
Although she didn’t mention it on Tuesday, on Wednesday, to bolster her case, Hiller produced a March 22 opinion of Deputy County Attorney Scott Teach who wrote, “It is my opinion Collier County may acquire the panther habitat credits from Barron Collier at the purchase price of $1,200 ... negotiate a lower per credit rate, or alternately decline the option to purchase from Barron Collier and elect to purchase the credits from an alternate source.”
Commissioner Jim Coletta said Hiller’s attempt to get the county out of the agreement sends a bad message to business. “That says to the community at large, we’re not interested in doing business with you. Even if we sign a contract we’re not interested in sticking by that contract,” he said.
Attorney John Passidomo, representing Barron Collier Co., offered legal shorthand for the attempt. “There is a sophisticated legal term for the theory that the bi-lateral agreement before you is an option. But that sophisticated legal theory is loosely translated in the vernacular as, ‘Malarkey.”’
Malarkey became lunacy, in the opinion of Commission Chairman Fred Coyle, when Hiller made the argument that the county should move money from the general fund to the impact fee fund to make up for fees waived by the county when an existing building is converted from one use to another.
She cited a legal opinion from Gregory Stewart of the law firm Nabors, Giblin and Nickerson, which handles impact fee matters for the county. It reads, in part, “Exemptions can be given for economic development purposes ... (But) the amount exempted should be funded from other revenue sources.”
However Klatzkow, Coyle and County Manager Leo Ochs agreed that the legal opinion pertains only to impact fees waived on new construction, not to cases where a building upon which impact fees have been paid is converted from one use to another. The county commission agreed to a blanket waiver of those fees in 2009.
Klatzkow said he reaffirmed as much with Stewart on Monday. “The author of that very letter says letter says it does not apply to change of use. It’s for new development,” he said.
Coyle was more animated. “This is a bizarre interpretation of an opinion that wasn’t even intended for this particular case. To suggest that we have somehow been remiss in not paying money out of our general fund for the privilege of making a policy change is lunacy,” he said.
Hiller’s motion to reimburse the impact fee fund to make up for waivers granted to existing properties died for lack of a second.
Finally, as the 10-hour meeting neared an end, Hiller managed to make the county’s legal staff squirm when she pressed for details as to why the U.S. Department of Housing and Urban Development decreased the amount it is giving Collier County in grants by $160,000.
The decrease is half the amount of HUD money the county approved for the ill-fated Cirrus Pointe development in East Naples.
In 2005 Cirrus Pointe might have seemed like a good idea. The county would use HUD money to help a developer build a housing complex. Some of the units would be reserved for people of moderate incomes, firefighters or teachers, for example.
The $320,000 from HUD went toward the purchase of land along Thomasson Drive. Before construction got going, the bottom fell out of the housing market. Demand for new housing disappeared and Cirrus Pointe collapsed.
The county is in litigation trying to recover the $320,000.
Florida law requires county’s to conduct most of their business in open meetings but it grants exemptions when it comes to discussing legal strategies. The theory is taxpayers suffer if opposing attorneys know too much about what tack government attorneys are taking.
Klatzkow and Assistant County Attorney Steve Williams were mindful of that. Hiller, not so much. At least not early in the discussion.
The county’s lawsuit originally named the developer and the non-profit Collier Housing Development Corp. as defendants.
Hiller wondered why the non-profit was dropped from the lawsuit, how the non-profit came to have a lien on the property and why the county didn’t have a lien. Williams said he was not on staff at the time Cirrus Pointe deal was struck.
Hiller turned to Klatzkow, who was. “So you knew all about this transaction,” she said.
“No I did not, ma’am,” he responded.
“I’m just asking. It was a question,” she countered.
“That’s not a question, it’s an accusation,” Klatzkow shot back.
Williams glanced around nervously as he tried to answer Hiller’s questions.
“I hate to discuss this in a public forum. It’s open litigation. They (Collier Housing Development Corp.) have agreed to assist us in going after the developer. There’s a lot going on here I’d rather not have on television for opposing counsel and everybody else to listening to me talk about.”
Coyle had one more scolding for Hiller. “Nobody has asked for, nor does anybody require, we discuss out litigation strategy in public. Your attempt to do so is destructive to the county’s ability to do its job.”
Hiller finally relented. “I don’t want to get into your strategy. I respect your need for privacy with that,” she told Williams.
Moments later her motion to reject the five-year HUD plan being discussed in conjunction with Cirrus Pointe died for lack of a second.
Zero for three.
But just like in baseball, there’s always next time.
Connect with Brent Batten at naplesnews.com/staff/brent_batten