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Mosaic to consider third party for alternative dispute resolution

By DANIEL SUTPHIN

Staff Writer

DeSoto County continues to wrangle with Mosaic ever since the County Commission denied the company’s bid to rezone 14,050 acres of farmland for phosphate mining.

The board met Monday and took action that could pit the two sides with a third party to make a recommendation on how to move forward.

“I have to say that nothing can happen to change what this board has done except by action of this board,” said County Attorney Donald Conn.

“The special magistrate cannot order a change and nothing can change the decision that the board made except of course if Mosaic ultimately decides to exercise their legal rights and go to court and if they were to prevail.”

On Monday, the board approved a motion allowing Conn to represent DeSoto in response to Mosaic’s Aug. 14 filing of an alternative dispute resolution.

The third party will serve as a special magistrate, or mediator, in what could be a costly process.

The mediator’s decision, however, can be denied by either party, landing them in court to battle it out.

County Commissioner Elton Langford questioned the point of going through the dispute resolution when, in all likelihood, Mosaic and the county will end up in litigation anyway.

“At the end of the day,” said Langford, “what is this really good for? And I don’t mean that to be a smart aleck... if those who filed this against us don’t get their way, chances are we’re going across the street (to the courthouse) anyway.”

Conn plans to stress several factors in accepting the request.

They include: • The special magistrate hearing should be based on the record of the quasi- judicial hearing with no new witnesses or exhibits and consisting solely of argument on the record.

• Public participation should be included in presenting the argument to the special magistrate and the time to request public participation shall be extended.

• The alternative dispute

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resolution process will be subject to the sunshine and public records laws.

• The board will conduct a quasi-judicial hearing when considering any special recommendation. If a special magistrate is appointed, that person shall have substantial local government experience.

• The board shall also retain authority to declare impasse at any time during mediation where, despite the parties’ best efforts, neither can agree and thus, declare impasse.

“That’s the end of mediation,” said Conn.

Conn will provide the board with status updates at future meetings.

The board also approved for Conn to seek additional funds from Mosaic to pay for the magistrate, which can be costly.

When asked to define costly, Conn said he had learned of two potential magistrates. Their hourly rates were listed between $350 and $450 an hour.

Members of the audience had mixed feelings in regards to the county moving forward with the dispute resolution.

One DeSoto resident thought the county should deny any further attention to Mosaic’s request.

“It is unclear at this time why they would compromise,” she said. “Why would DeSoto … what would we gain in large by that exchange? I think our position as a county ... thanks to the wisdom of our board ... our position is quite clear and I can’t imagine where that opening might be that we would compromise.”

Andy Mele of Bradenton Beach, FL thought the board should move forward with Mosaic’s request as a sign of good faith.

“I understand that I myself and probably 99 percent of the folks in this audience,” said Mele, “would like to say that you got it right the first time and just leave it be but I understand that you have to pretty much go along with this. You might as well just keep the moral high ground and just do it and bite the bullet, and it’s going to be a huge bullet. It will give you some significant credibility when you inevitably go across the street.” Attorney Sawyer C. Smith of Fort Myers also commented on the board’s decision, speaking on behalf of PREACH − Peace River-Charlotte Harbor Environmental Awareness Group − of Charlotte County.

“Your board’s denial of the rezoning was based on and supported by competent, substantial evidence … this board showed strength to stop something that would substantially change the characteristics of this region. I am not from Arcadia, I’m from Fort Myers. I don’t want to see all of the water leached down our direction from here as much as you all don’t want to see that.”

Conn said he can’t predict how all of this will turn out, but he believes the county should react to Mosaic’s request.

“We ought to participate … and see if we cannot come to a process that we can agree to that we are comfortable with,” said Conn. “Sometimes mediation surprises you and a resolution is arrived at … so we ought to give it a chance.”

A selection date for the special magistrate has been set for Sept. 4, according to Conn. The county’s response to Mosaic’s request has been set for Sept. 19.

Email: dsutphin@sun-herald.com

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