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Item L4BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: November 17 2010 Division: Growth Management Bulk Item: Yes _ No x Department: Staff Contact Person/Phone #: Joe Haberman, Christine Hurley and Bob Shillinger (305) 289-2517 AGENDA ITEM WORDING: Status report on Key Largo Ocean Resorts (KLOR) Circuit Court Settlement Agreement, Development Agreement, Major Conditional Use Approval and most recent request by KLOR Board of Directors to amend the site plan and product types approved in the prior Major Conditional Use Approval ITEM BACKGROUND: Key Largo Ocean Resort has been in the process of trying to redevelop the property for years and now have requested to amend the Major Conditional Use (development order) previously approved. The BOCC requested an update at their October 20, 2010. PREVIOUS RELEVANT BOCC ACTION: October 20, 2010 - BOCC requested an update on most recent request by KLOR CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: N/A TOTAL COST: INDIRECT COST: DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: UDGETED: Yes No SOURCE OF FUNDS: REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year APPROVED BY: County Atty _ DOCUMENTATION: Included DISPOSITION: Revised 7/09 OMB/Purchasing Risk Management x Not Required AGENDA ITEM # MONROE COUNTY PLANNING & ENVIRONMENTAL RESOURCES DEPARTMENT We strive to be caring, professional and fair To: The Monroe County Board of County Commissioners (BOCC) Through: Christine Hurley, AICP, Director of Growth Management Townsley Schwab, Senior Director of Planning & Environmental Resources From: Joseph Haberman, AICP, Principal Planner Date: October 25, 2010 Subject: Key Largo Ocean Resorts (KLOR), located at mile marker 94.8 of the Overseas Highway (US 1), Key Largo, having Real Estate Numbers 00483390.000000 & 00483400.000000 Meeting: November 2010 2 REQUEST 3 4 KLOR is proposing modifications to an approved site plan by E.A. Calil Architect, dated May 2, 5 2007 and signed by the Planning Commission Chair on August 24, 2007, which was approved as 6 part of a corresponding major conditional use permit. This document is hereon referred to as the 7 approved site plan. KLOR is requesting the revisions in order to modify the layout of the 8 internal, non -platted lots and roadway network, as shown on a site plan by Orestes Lopez-Recio, 9 dated May 17, 2010. This document is hereon referred to as the proposed site plan. KLOR is 10 also proposing modifying the types of housing approved in the major conditional use permit. 11 12 RELEVANT PRIOR COUNTY ACTIONS 13 14 In 1994 and 1995, the Code Enforcement Department began to actively pursue compliance with 15 the requirements of the Recreational Vehicle (RV) district and to resolve issues related to 16 construction without the benefit of properly issued building permits. The Code Enforcement 17 proceedings resulted in a lien being imposed against the entire park since it was owned as one 18 parcel. In response, KLOR sought an injunction against Monroe County. 19 20 In 1996, the Circuit Court granted an injunction against Monroe County, Case Number 96- 21 20160-CA-22, preventing the Code Enforcement Department from institution further 22 proceedings so as to allow KLOR to seek a change of its land use district designation from RV to 23 Urban Residential Mobile Home (URM) in order to resolve some of the code enforcement 24 issues. In 2003, the Court ordered the parties into Mediation, which resulted in a Settlement 25 Agreement, signed by the parties in June 2003 and approved by the Court on August 4, 2003, 26 which authorized KLOR to apply for a Development Agreement. 27 Page 1 of 4 I In 2006, Monroe County entered into a Development Agreement with Key Largo Ocean Resort 2 Co -Op, Inc to comply with the Settlement Agreement. The Development Agreement provided 3 conceptual approval of a plan to redevelop the site. Approval of the development agreement was 4 further documented in BOCC Resolution #242-2006. 5 6 Pursuant to Section I of the Development Agreement, its purpose is A) to agree on a phased 7 program of remedial actions and resort -wide improvements to achieve compliance with the 8 requirements of the URM district, such that not more than 285 of the existing manufactured 9 homes or single-family detached homes elevated to the levels required by Monroe County's 10 floodplain regulations; B) to allow KLOR to retain temporarily, pursuant to the terms of the 11 Development Agreement, some of the conforming, or accessory to a permitted use structures, 12 and uses permitted by Monroe County prior to 1990 or established as otherwise lawfully in 13 existence on the property prior to 1990; C) to allow KLOR to retain as conforming the permitted 14 existing grill/pub, bathrooms, office and docking facilities for 65 wet slips and club 15 establishments as accessory uses to the principal residential uses; and D) to establish specific 16 development and permit approvals and processes required for bringing KLOR into compliance 17 with Monroe County land development regulations, building codes and fire safety codes. 18 19 Resolution #242-2006 was passed and adopted on June 21, 2006. The Development Agreement 20 was filed and recorded on August 17, 2006. The effective date was 30 days after the duly signed 21 and recorded agreement was received by the State of Florida Department of Community Affairs. 22 The State of Florida Department of Community Affairs received the recorded document on 23 August 24, 2006 and on September 21, 2006 issued a letter to Monroe County stating they would 24 not appeal. Therefore, the effective date of the Development Agreement as originally 25 contemplated by the County and KLOR was September 24, 2006. Per Section II(B) of the 26 Development Agreement, the agreement shall remain in effect for a period of seven years, 27 commencing on the effective date. 28 29 In 2007, the Planning Commission approved a request by KLOR for a major conditional use 30 permit to approve the redevelopment plan and site plan. The approval and conditions were 31 memorialized in Planning Commission Resolution #P35-07. This approval applied to the 32 redevelopment of the entire subject property and was reliant on the additional approval of the 33 Development Agreement. 34 35 Following its issuance, Planning Commission Resolution # P35-07 was appealed to the State of 36 Florida Division of Administrative Hearings (DOAH). The appeal (Case #07-5390) was filed 37 within the 30-day public appeal period. Following a review by DOAH, the case was dismissed, 38 documented by a final order of dismissal signed by Brain D. E. Canter, Administrative Law 39 Judge, on June 25, 2008. A KLOR resident named Maria Barroso appealed that order to the 40 Circuit Court (Case #: CA P 08-564). That case was dismissed by agreement on August 18, 41 2009 as more fully explained in the following paragraph. 42 43 The Site Plan approved in Resolution #P35-07 became the subject of litigation in the settled lien 44 foreclosure case (CA P 96-160). As part of that collateral litigation, KLOR filed a petition for 45 declaratory statement within the context of the settled lien foreclosure case, which asked the 46 Court to determine if the site plan that was approved in Resolution #P35-07 had been validly Page 2 of 4 I approved by the KLOR members. On October 10, 2008, the Circuit Court entered an order 2 construing F.S. 719.1055 to mean that one hundred percent of the KLOR members would have 3 to have approved the site plan because, if implemented, the "lots" would be materially altered. 4 KLOR challenged that decision in the Third District Court of Appeals. (Case #: 3d08-2711). On 5 February 4, 2009, the Third District reversed the Circuit Court decision and held that the original 6 site plan had been properly approved even though it had garnered less than 100% approval. See, 7 Key Largo Ocean Resort Co -Op., Inc. v. Monroe County, 5 So.3d 31 (Fla. 3d DCA 2009). Maria 8 Barroso and other KLOR members sought discretionary review of the Third District's decision 9 in the Florida Supreme Court (Case #: SC09-678). On June 11, 2009, the Florida Supreme Court 10 declined to exercise jurisdiction over the case, thus rendering the decision of the Third District 11 final. Jurisdiction over the matter returned to the Circuit Court shortly thereafter. Because Ms. 12 Barroso's issues with the site plan approved in Resolution #P35-07 had been resolved adversely 13 to her as a result of the appellate courts decisions, she dismissed her appeal in CA P 08-564 in 14 August of 2009. 15 16 On July 13, 2009, the County moved the Circuit Court to ratify and approve the Development 17 Agreement. On August 22, 2009, the Circuit Court granted the County's motion and adopted a 18 "Master Development Schedule ... as a guideline for the parties to implement the Development 19 Agreement." The Master Development Schedule was never implemented because the KLOR 20 Board was recalled and replaced in late 2009. 21 22 Contemporaneously, the County sought to enjoin the use of the Park for habitation because of 23 numerous life safety violations. After touring the park, the Court granted the injunction and 24 originally ordered the park to close as of January 15, 2010. That deadline was extended a couple 25 of times but the Court ultimately ordered the park closed for habitation effective July 31, 2010 in 26 an order dated June 22, 2010. In the June 22, 2010 order, the Court ordered that all illegal 27 structures on the property to be demolished by December 31, 2010. 28 29 Since August 22, 2009 is the most recent effective date for the Development Agreement that has 30 been approved by the Court, the seven year time period for completing the Development 31 Agreement commenced on that date. 32 33 The redevelopment plan approved under the Development Agreement and Resolution #P35-07 34 has not been completed. In addition, as the redevelopment plan has not been carried out in full, 35 numerous documented code enforcement violations remain in existence. 36 37 REVIEW OF PROPOSAL 38 39 The Development Agreement and major conditional use permit approved the construction of 285 40 permanent, market -rate dwelling units. KLOR is proposing architectural design guidelines for 41 residential dwelling units (rather than specified model styles), but is not proposing any changes 42 to the type of residential dwelling unit approved (detached, single-family). 43 44 The Development Agreement approved a conceptual plan of action to be followed. Pursuant to 45 Section II(F) of the Development Agreement, KLOR was required to submit a complete site 46 redevelopment plan, in the form of a major conditional use permit application, to Monroe County Page 3 of 4 I for review within 120 days of the effective date of the Development Agreement which was 2 nominally September 24, 20061. This action was carried out with the submittal of the major 3 conditional use permit application on May 4, 2007. However, there are additional deadlines 4 which must be met. 5 6 There is no language in the Development Agreement prohibiting KLOR from requesting and 7 receiving revisions to the approved site plan and major conditional use permit so long as the 8 revisions are consistent with the Development Agreement. Following a review of the proposed 9 site plan, staff determined that the proposed revisions would be in compliance with the 10 Development Agreement. Therefore, the Development Agreement would not have to be 11 amended to carry out the proposed revisions. However, KLOR should be aware that staff's 12 processing of the revisions to the approved site plan could impact other timeframes/deadlines 13 provided in the Development Agreement. If KLOR cannot meet required timeframes/deadlines 14 due to the revision process, the Development Agreement will have to be amended. Otherwise, 15 KLOR risks breach of the Development Agreement. 16 17 Staff has determined that the proposed changes require major deviation approval. Pursuant to 18 MCC §110-73(b)(4), if the holder of an approved conditional use wishes to make an adjustment 19 to the approval that is not a minor deviation, approval of the Planning Commission in accordance 20 with the provisions of §110-73(b)(5) must be obtained. 1 However, as more fully set forth above, the Court modified the effective date of the Development Agreement to August 22, 2009 due to the protracted litigation over the approval of the site plan. Page 4 of 4 a_\�V_Dc =_Ivi l. nil ---------- ]!JR TTT" J, tr z < Ll APPLICATION MONROE COUNTY PLANNING & ENVIRONMENTAL RESOURCES E C E MONROE CO. PLANNING DEPT. Request for a Major Deviation to a Conditional Use Permit After a conditional use permit has been issued, certain adjustments may be approved as major deviations. Major Deviation to a Conditional Use Permit Application Fee: $1,768.00 Date of Submittal: 10 / Z t /26 10 Month Day Year Property Owner: Kc-Y l.74v?GD Oci~AN Pssoou Co; Name Agent (if applicable): Name Q42)Z5 &)ff5tiN�>HIrA AY S:W.32S'► lxkt, tL-- 31 Mailing Address (Street, City, State, Zip Code) Mailing Address (Street, City, State, Zip Code) Sob 3&0.- Z834 Daytime one Daytime Phone Email Address ' C" Email Address Development Order/ Resolution Number: Applicant on Conditional Use Application: �. a - ime Phone Page 1 of 3 C,.tst ttr%i.a1 U i !(.i I O APPLICA'i-ION Legal Description of Property: (If in metes and bounds, attach legal description on separate sheet) Block Lot Subdivision Key 0©4,b oo-000O00 A-0J:D QQ4 33 90 -0 0 t 501 30 -2 A-,+� t `t 3ot0 Real Estate (RE) Number Alternate Key Number Street Address (Street, City, State, Zip Code) Approximate Mile Marker Major deviations: If the holder of an approved conditional use wishes to make an adjustment to the approval that is not a minor deviation, approval of the planning commission in accordance with the provisions of MCC §110- 73(bx5) must be obtained. If the director of planning finds that the development is not proceeding in substantial accordance with the approved plans or schedule or that it fails in any other respect to comply with the conditional use approval issued or any provision contained in this chapter, that director shall immediately notify the development review coordinator and the planning commission and may, if necessary for the protection of the public health, safety or welfare, notify the building official to issue a temporary order stopping any and all work on the development until such time as any noncompliance is cured. No action may be taken by the planning commission that effectively amends the conditional use approval except by way of the procedures set out in MCC §110-70 Please describe what the requested major deviation would allow. (If necessary, attach additional sheets) ,�10 P.AV,. "E,. t✓T t✓�ctSr��G T-c-i-�u'� s .a�. 'D�-SK t c� Co��T 00 R1 t-0-10 VA-qM of the following must be submitted in order to have a complete application submittal: (Please check as you attach each required item to the application) Complete conditional use permit major deviation application (unaltered and unbound); Correct fee (check or money order to Monroe County Planning & Environmental Resources); ® Proof of ownership (Le. Warranty Deed); ®- Current Property Record Card(s) from the Monroe County Property Appraiser; Copy of Signed Development Order or Resolution; tCi Copy of Approved Site Mn; Signed and Sealed Site Plan, prepared by a Florida registered architect, engineer or landscape architect (drawn to a scale of 1 inch equals 20 feet, except where impractical and the Director of Planning authorizes a different scale). At a minimum, the site plan should include all of the information provided on the approved site plan as well as all requested adjustments. Areas to be adjusted should be marked with diagonal lines or otherwise clearly delineated. Page 2 of 3 ! ast Re%i%Vd 11l"2011} AITIACA FION If applicable, the following must be submitted in order to have it complete application submittal: Notarized Agent Authorization Letter (note: authorization is needed from all owner(s) of the subject property) If deemed necessary to complete a full review of the application, the Planning & Environmental Resources Department reserves the right to request additional information. If for any reason the minor deviation application requires review and consideration by the Monroe County Planning Commission, additional fees, mailing labels and copies of all plans shall be required prior to item being scheduled for commission review I certify that l am familiar with the information contained in this application, and that to the best of my knowledge such ' f s complete and accurate. /�� Signature of Applicant: Date: �G'�. 2 k, Zo V0 Sworn before me this '21 day of C CrOPD L L..,, ` 010 C�- Commission Expires Please send the complete application package to the Monroe County Planning & Environmental Resources Department, Marathon Government Center, 2798 Overseas Highway, Suite 400, Marathon, FL 33050. LYDKCABRERA Notary Public . State of Florida s' 's µr Commission Expires Aug 30.201 : Commission # DD 785284 Bondedlko*NetbWNoWyAssa Page 3 of 3 l ii+t ltr% kcd 0t. Ntit► DocN 2711349 09/15/2008 12:39PM Filed & Recorded in Official Records of MONROE COUNTY DANNY L. KOLHAGE Doc# 1711349 Bkq 2379 Psi1 2178 1 PLANNING COMMISSION RESOLUTION NO. P35-07 A RESOLUTION BY THE MONROE COUNTY PLANNING COMMISSION APPROVING THE REQUEST BY KEY LARGO OCEAN RESORTS, A CO-OPERATIVE, FOR AN AMENDMENT TO A MAJOR CONDITIONAL USE PERMIT TO DEMOLISH ALL EXISTING STRUCTURES AND REDEVELOP ALL INFRASTRUCTURE, AMENITIES, AND REPLACE THE EXISTING RVS, PARK MODELS, AND MOBILE HOMES WITH 285 SINGLE FAMILY PERMANENT RESIDENTIAL DWELLING UNITS AND ACCESSORY USES OF A GATEHOUSE, OFFICE BUILDING, COMMUNITY CENTER AND GRILL/PUB AREA; PROVIDING FOR CONDITIONS; ON PROPERTY LEGALLY DESCRIBED AS SOUTHCLIFF ESTS PB2-45- KEY LARGO NE 100' OF SW 1/2 OF TR 9 PT TR 9-10-11 (14.65AC) PT LINE ROAD (.75AC) PT NE1/4 OF SE1/4 (5.1AC) PT GOV LT 3 (.6AC) & ADJ BAYBTM (5.22AC), KEY LARGO, MONROE COUNTY, FLORIDA HAVING REAL ESTATE NUMBERS 00483390.000000 AND 00483400.000000 AT APPROXIMATE MILE MARKER 95. WHEREAS, during a regularly scheduled public meeting held on July 25, 2007, the Monroe County Planning Commission conducted a review and consideration of the request filed by Key Largo Ocean Resorts, a Co-operative (KLOR) for an amendment to a major conditional use permit pursuant to Monroe County Code (MCC) §9.5-69; and WHEREAS, KLOR brought action against Monroe County in 1994 in order to change their Land Use Designation from Recreational Vehicle (RV) to Urban Residential Mobile Home (URM); and WHEREAS, court hearings and court appointed mediation over ten (10) years occurred and resulted in the BOCC unanimously approving a change from RV to URM along with the corresponding Future Land Use Map change from Mixed Use/Commercial (MC) to Residential High (RH) on August 18, 2004; and WHEREAS, the BOCC approved and signed Resolution # 242-2006 on June 21, 2006 for a Development Agreement for this property to include a site redevelopment plan along with a major conditional use permit which resulted in this application; and P35-07 Page I of 6 KLOR Amendment to a Major Conditional Use DacX 1711349 Bk# 2379 P9p 2179 WHEREAS, the subject property is located at 94825 Overseas Highway, Key Largo; and WHEREAS, the item was heard at a regularly scheduled meeting of the Development Review Committee on July 11, 2007; and WHEREAS, the Planning Commission was presented with the following evidence, which by reference is hereby incorporated as part of the record of said hearing: 1) The Application for an Amendment to a Major Conditional Use received by the Monroe County Planning and Environmental Resources Department, including the plans and surveys listed in attachment A; 2) The staff report prepared by Julianne Thomas, Planner dated July 18, 2007, including attachments; 3) The sworn testimony of the Growth Management Division Staff, 4) The sworn testimony of the Applicant and Applicant's witnesses; 5) Sworn testimony by the public; 6) Exhibits provided by the Applicant; 7) Comments by Franklin Greenman, Attorney for the Applicant; 8) Comments by Susan Grimsley, Assistant County Attorney; 9) Comments by Thomas Wright, Acting Planning Commission Counsel. WHEREAS, MCC § 9.5-65 provides the standards which are applicable to all conditional use permits: WHEREAS, Staff determined that the application met the standards required in MCC § 9.5-65(a),(b), (c), (d), (e), (f), (g) and (h); and WHEREAS, Staff could not determine compliance with the following standards imposed on this conditional use application by the Land Development Regulations pursuant to MCC §9.5- 65(i): 1) Inclusionary housing (MCC §9.5-266); and 2) Mitigation Standards (MCC §9.5-346); and 3) Street Trees (MCC §9.5-366) WHEREAS, after consideration of the testimony and evidence presented, the Planning Commission makes the following findings of Fact and Conclusions of Law: 1. Based on §II.C.6 of the Development Agreement, all parties agreed that the approved development shall comply and be controlled by this Agreement, the Land Development Regulations, and the Comprehensive Plan effective on July 22, 2006; and 2. Based on §IV.A., the Site Redevelopment Plan meets the conditions as required by the Development Agreement so long as phasing schedules are followed; and 3. Based on staff review of the application, the application meets the standards required in MCC § 9.5-65(a),(b), (c), (d), (e), (f), (g) and (h); and , P35-07 Page 2 of 6 KLOR Amendment to a Major Conditional Use Docp 1711349 Bkq 2379 Pgq 2180 4. Based on the Application, staff could not determine compliance with the following standards imposed on this conditional use application by the Land Development Regulations pursuant to MCC §9.5-65(i): a. Inclusionary Housing (§9.5-266) b. Mitigation Standards (§9.5-346) C. Street Trees (§9.5-366) 5. Based on staff review of the of application, the building department will determine compliance with the following Land Development Regulations upon submittal for a building permit: a. Maximum Height (§9.5-283) b. Fencing (§ 9.5-309) C. Floodplain Management (§§. 9.5-316 & 9.5-317) d. Outdoor Lighting (§§ 9.5-391, 9.5-392 & 9.5-393) e. Signs (§§. 9.5-404 & 9.5-405) NOW THEREFORE, BE IT RESOLVED BY THE PLANNING COMMISSION OF MONROE COUNTY, FLORIDA; Section 1. The request by Key Largo Ocean Resorts — a Co-operative for an amendment to a major conditional use permit for the following is APPROVED subject to the conditions in Section 2: 1. Demolish all existing structures and redevelop all infrastructure, amenities, and replace the existing RVs, park models, and mobile homes with 285 single family permanent residential dwelling unit and accessory uses of a gatehouse, office building, community center and grill/pub area. Section 2. The approval is SUBJECT TO THE FOLLOWING CONDITIONS: 1. Prior to issuance of the Planning Commission Resolution, the applicant shall receive an exemption from the BOCC for the inclusionary housing standards pursuant to MCC §9.5-266 or comply with the inclusionary housing standards. 2. The applicant shall meet the compliance schedule as set forth in the Development Agreement §IV.A. 3. This conditional use permit shall be valid until July 22, 2011 so as to expire on the same date as the Development Agreement pursuant §II.B. 4. The County shall accept building permits only during the appropriate phasing period for corresponding lot number and only by contractors for buildings and floor -plans approved by the KLOR Board of Directors. 5. Prior to the Issuance of a building permit: a. The wetland area of RE 00483390.000000 shall be restored; and b. RE 00483390.000000 shall be placed under a Grant of Conservation Easement, including the entirety of the hardwood hammock area; and P35-07 Page 3 of 6 KLOR Amendment to a Major Conditional Use Docp 1711349 Bk# 2379 Pgq 2181 6. Prior to the issuance of a building permit, compliance with the following standards imposed on it by the Land Development Regulations shall be determined upon submittal to the Building Department: a. Fencing (§ 9.5-309) b. Floodplain Management (§§. 9.5-316 & 9.5-317) c. Outdoor Lighting (§§ 9.5-391, 9.5-392 & 9.5-393) d. Signs (§§. 9.5-404 & 9.5-405) 7. Prior to any Certificate of Occupancy (C.O.) for each phase, the applicant shall coordinate with the County Biologist in order to determine what mitigation is going to be required pursuant to MCC §9.5-346 and satisfy mitigation requirements for each phase. 8. Prior to the C.O. for any unit, the applicant shall coordinate with the County Biologist and the Land Authority in order to develop a satisfactory solution to meeting the required street tree planting pursuant to §9.5-366. 9. Prior to the issuance of a C.O., each unit shall have an internal five foot (5') front, side, and rear setback. Setbacks are being measured from the drip lines of the structures resulting in an approximate minimum separation of vertical walls of at least eleven feet a. Stairs for first floor access (of elevated structures). The stairs shall be made from a fire resistant material such as concrete or metal; and b. Stairways shall not face each other; and c. Air conditioner compressor units shall be located at the rear of each unit, elevated to above base flood elevation. d. Optional elevators units to accommodate the needs of physically challenged residents are available. All mechanical components shall be located above base flood. 10. Prior to the issuance of a C.O., any new single family permanent residential dwelling unit shall be equipped with the following to support energy and conservation standards pursuant to MCC §9.5-326: a. Energy efficient appliances b. Ultra efficient and low flow water fixtures c. Energy efficient windows d. A high R-Factor insulation plan e. Tankless super efficient water heaters f. Metal Roofs 11. There shall be no fences placed in the front yard setback of any unit. 12.One-way streets shall be clearly marked as one way as directed by the fire marshal. 13. All homes shall be built with a one (1) hour tenant separation fire resistant rated material between the dwelling unit and carport in order to allow boats to be stored beneath elevated homes. 14. The boat slips shall be for use by KLOR residents only and cannot be leased, bought or sold to persons who do not own a unit in KLOR. 15. There shall be no parking along internal streets or in the front yard setback of any unit. This includes parking boats, boat trailers, jetskis, etc. P35-07 Page 4 of 6 KLOR Amendment to a Major Conditional Use DOCK 1721349 Bkp 2379 P9N 2182 WHEREAS, Condition 1 has been met by the BOCC approving the inclusionary housing exemption pursuant to MCC § 9.5-266 at a regularly scheduled meeting scheduled on August 15, 2007; and PASSED AND ADOPTED by the Planning Commission of Monroe County, Florida, at a regularly meeting held on the 25`h day of July, 2007. Chair Cameron YES Vice Chair Wall YES Commissioner Cates -Deal ABSENT Commissioner Popham YES Commissioner Windle YES PLANNING COMMISSION OF MONROE COUNTY, FLORIDA BY _ JArdes D. Cameron, Chair Signed this6�c/7 r day of (J 61-0 , 2007 APPROVED AS TO FORM ANP LEGAL SUFFICIENCY BY , A • P35-07 Page 5 of 6 KLOR Amendment to a Major Conditional Use Doc# 1711349 Bk# 2379 Pg# 2283 Attachment A: PLANS REVIEWED Page Name Page # Source Date Proposed Site Plan - KLOR A-1 E.A. Calil Architect May 2 2007 Proposed Site Plan - KLOR A-2 E.A. Calil Architect May 2 2007 Proposed Site Plan - KLOR A-3 E.A. Calil Architect May 2, 2007 Proposed Site Plan - KLOR A-4 E.A. Calil Architect May 2, 2007 Proposed Site Plan - KLOR A-5 E.A. Calil Architect May 2, 2007 Open Area Calculations A-6 E.A. Calil Architect May 2, 2007 Construction Development Site Plans A-7 E.A. Calil Architect May 2 2007 Proposed Example Elevation A-8 E.A. Calil Architect May 2, 2007 Site Key Landscape Plan L-0I Land Form Design Group, Inc. May 3, 2007 Site Key Landscape Plan L-02 Land Form Design Group, Inc. May 3, 2007 Site Key Landscape Plan L-03 Land Form Design Group, Inc. May 3, 2007 Site Key Landscape Plan L-04 Land Form Design Group, Inc. May 3, 2007 Site Key Landscape Plan L-05 Land Form Design Group, Inc. May 3, 2007 Site Key Landscape Plan L-06 Land Form Design Group, Inc. May 3, 2007 Site Key Landscape Plan LT-01 Land Form Design Group, Inc. May 3, 2007 Site Key Landscape Plan LT-02 Land Form Design Group, Inc. May 3, 2007 Site Key Landscape Plan LT-03 Land Form Design Group, Inc. May 3, 2007 Site Key Landscape Plan LT-04 Land Form Design Group, Inc. May 3, 2007 Site Key Landscape Plan LT-05 Land Form Design Group, Inc. May 3, 2007 Site Key Landscape Plan LT-06 Land Form Design Group, Inc. May 3, 2007 Boundary / As Built Survey - Delta Surveyors - Sealed & Signed by Waldo F. Paez on 4- 20-07 February 20, 2007 P35-07 Page 6 of 6 KLOR Amendment to a Major Conditional Use M 1. Im- I . . . . . . . . . . . . Eo VarWW WWII A3X AVMHOM SYRSMW SMM &L'HMU NVFDO WTvrl AU Olk.7.7­ ...a It ai ail 4i i i fl i i H i i g am lywo vanD s.gvm EN ii Imo_=y� lit IT �`1 �$� € �gsp�l IG6� NMI MUNI NMI ul klvaac anvi ��n, �NPM- Los NV 8 W, 0s &. z Ld County of Monroe Growth Management Division Plannin¢ & Environmental Resources Department 2798 Overseas Highway, Suite 410 Marathon, FL 33050 Voice: (305) 289-2500 FAX: (305) 289-2536 October 27, 2010 Orestes Lopez-Recio 5895 S.W. 32nd Street Miami, FL 33155 Board of County Commissioners Mayor Sylvia J. Murphy, Dist. 5 Mayor Pro Tern Heather Carruthers, Dist. 3 Mario Di Gennaro, Dist. 4 George Neugent, Dist. 2 Kim Wigington, Dist. 1 We strive to be caring, professional and fair SUBJECT: LETTER OF UNDERSTANDING CONCERNING KEY LARGO OCEAN RESORTS (KLOR), LOCATED AT MILE MARKER 94.8 OF THE OVERSEAS HIGHWAY (US 1), KEY LARGO, HAVING REAL ESTATE NUMBERS 00483390.000000 & 00483400.000000 Mr. Lopez-Recio, Pursuant to § 110-3 of the Monroe County Code (MCC), this document shall constitute a Letter of Understanding (LOU). On August 4, 2010, a Pre -Application Conference regarding the above -referenced property was held at the office of the Monroe County Planning & Environmental Resources Department in Marathon. Attendees of the meeting included Orestes Lopez-Recio, Gicela Pino and Alberto P. Herrera (hereafter referred to as "the Applicant") and Townsley Schwab, Senior Director of Planning & Environmental Resources, Joseph Paskalik, Building Official, Steven Zavalney, Captain Fire Prevention Bureau, Joseph Haberman, Principal Planner, and Michael Roberts, Senior Administrator of Environmental Resources (hereafter referred to as "Staff'). Materials presented for review included: (a) Pre -Application Conference Request Form; (b) Monroe County Property Record Cards; (c) Monroe County Land Use District Map and Future Land Use Map; (d) Ordinances #023-2004 and #024-2004; (e) Development Agreement between Monroe County and Key Largo Ocean Resort Co -Op, Inc.; (f) Board of County Commissioners Resolution #242-2006; (g) Planning Commission Resolution #P35-07; (h) Site Plan (A-1) by E.A. Caul Architect, dated May 2, 2007; (i) Site Plan (A-1) by Orestes Lopez-Recio, dated May 17, 2010; KLOR, Key Largo, Letter of Understanding Page 1 of 18 0) Site Landscape Plan (1-01) by Land Form Design Group, Inc., dated June 23, 2010 I. APPLICANT PROPOSAL The Applicant is proposing modifications to an approved site plan by E.A. Calil Architect, dated May 2, 2007 and signed by the Planning Commission Chair on August 24, 2007, which was approved as part of a corresponding major conditional use permit. This document is hereon referred to as the approved site plan. The Applicant is requesting the revisions in order to modify the layout of the internal, non -platted lots and roadway network. The Applicant provided a site plan by Orestes Lopez-Recio, dated May 17, 2010. This document is hereon referred to as the proposed site plan. The Applicant also proposed modifying the types of housing approved in the major conditional use permit. Subject Property (outlined in blue) (2009) II. SUBJECT PROPERTY DESCRIPTION 1. The property is located at 94825 US 1, between the US 1/Palm Drive and US 1/Cuda Lane intersections, on Key Largo, at approximate mile marker 97.6 on the Atlantic Ocean side of the US 1. 2. There are 285 non -platted lots within KLOF, which have historically provided for seasonal transient and permanent housing, together with accessory amenities including a marina, tennis courts, swimming pool, recreation building, boat ramp, clubhouse, boat trailer parking, open space and administrative offices. KLOR, Key Largo, Letter of Understanding Page 2 of 18 3. The property consists of several parcels of land. The subject property is legally described as portions of Sections 13 and 14, Township 62 South, Range 38 East on Key Largo, being part Tract 10 and part Tract 11 of Southcliff Estates (PB2-45) and having real estate numbers (RE's) 00483390.000000 and 00483400.000000. In addition, there is submerged land with docking facilities located adjacent to the site, having RE's 00088670.000100 and 00088680.000100. The legal description is provided in full in the deed. 4. There are two other parcels located contiguous to the subject property on which docking facilities exist. These parcels, which are mostly submerged and owned by TIITF, are identified as RE 00088680.000100 & RE 00088670.000100. 5. According to the approved site plan, in total, the subject property consists of approximately 999,702 SF (22.95 acres) of land area. Therefore, all calculations included in this letter are based on these records. 6. RE 00483400.000000 is currently developed with mobile homes, recreational vehicles (RVs) and accessory uses and is currently being assessed under the Monroe County Property Appraiser Property Classification Code (PC) of 28 (Parking Lots, Mobile Home Parks). RE 00483390.000000 is vacant of structures and is currently being assessed under the PC code of 10 (Vacant Commercial). 7. According to the Monroe County Property Appraiser's records, RE 00483390.000000 and RE 00483400.000000 are currently owned by Key Largo Ocean Resorts Co -Op, Inc. RE 00088670.000100 and RE 00088680.000100, the adjacent parcels on which the docking facilities exist, are currently owned by the Trustees of the Internal Improvement Fund (TIITF) / State of Florida Public Lands. Key Largo Ocean Resort Co -Op, Inc. is the legal entity responsible for the operation of Key Largo Ocean Resort. Concerning RE 00088670.000100 and RE 00088680.000100, a copy of a lease was not provided; however there is language in the legal description that states that there are Trustees of the Internal Improvement Fund of the State of Florida deeds, 424,107, #24,151 and #21,847. III. RELEVANT PRIOR COUNTY ACTIONS In 1994 and 1995, the Code Enforcement Department began to actively pursue compliance with the requirements of the Recreational Vehicle (RV) district and to resolve issues related to construction without the benefit of properly issued building permits. The Code Enforcement proceedings resulted in a lien being imposed against the entire park since it was owned as one parcel. In response, KLOR sought an injunction against Monroe County. 2. In 1996, the Circuit Court granted an injunction against Monroe County, Case Number 96- 20160-CA-22, preventing the Code Enforcement Department from institution further proceedings so as to allow KLOR to seek a change of its land use district designation from RV to Urban Residential Mobile Home (URM) in order to resolve some of the code enforcement issues. In 2003, the Court ordered the parties into Mediation, which resulted in KLOR, Key Largo, Letter of Understanding Page 3 of 18 a Settlement Agreement, signed by the parties in June 2003 and approved by the Court on August 4, 2003, which authorized KLOR to apply for a Development Agreement. 3. In 2004, the Future Land Use Map (FLUM) designation on the subject property was modified. The FLUM category of RE 00483400.000000 and RE 00483390.000000 was amended from Mixed Use / Commercial (MC) to Residential High (RH). The approval is memorialized in Ordinance #023-2004. 4. In 2004, the land use district designations on the subject property were modified. The land use district of RE 00483400.000000 was amended from RV to URM. The land use district of RE 00483390.000000 was amended from Improved Subdivision (IS) to URM. The approval is memorialized in Ordinance #024-2004. 5. In 2006, Monroe County entered into a Development Agreement with Key Largo Ocean Resort Co -Op, Inc to comply with the Settlement Agreement. The Development Agreement provided conceptual approval of a plan to redevelop the site. Approval of the development agreement was further documented in BOCC Resolution #242-2006. Pursuant to Section I of the Development Agreement, its purpose is A) to agree on a phased program of remedial actions and resort -wide improvements to achieve compliance with the requirements of the URM district, such that not more than 285 of the existing manufactured homes or single-family detached homes elevated to the levels required by Monroe County's floodplain regulations; B) to allow KLOR to retain temporarily, pursuant to the terms of the Development Agreement, some of the conforming, or accessory to a permitted use structures, and uses permitted by Monroe County prior to 1990 or established as otherwise lawfully in existence on the property prior to 1990; C) to allow KLOR to retain as conforming the permitted existing grill/pub, bathrooms, office and docking facilities for 65 wet slips and club establishments as accessory uses to the principal residential uses; and D) to establish specific development and permit approvals and processes required for bringing KLOR into compliance with Monroe County land development regulations, building codes and fire safety codes. Resolution #242-2006 was passed and adopted on June 21, 2006. The Development Agreement was filed and recorded on August 17, 2006. The effective date was 30 days after the duly signed and recorded agreement was received by the State of Florida Department of Community Affairs. The State of Florida Department of Community Affairs received the recorded document on August 24, 2006 and on September 21, 2006 issued a letter to Monroe County stating they would not appeal. Therefore, the effective date of the Development Agreement as originally contemplated by the County and KLOR was September 24, 2006. Per Section II(B) of the Development Agreement, the agreement shall remain in effect for a period of seven years, commencing on the effective date. 6. In 2007, the Planning Commission approved a request by KLOR for a major conditional use permit to approve the redevelopment plan and site plan. The approval and conditions were memorialized in Planning Commission Resolution # P35-07. This approval applied to the KLOR, Key Largo, Letter of Understanding Page 4 of 18 redevelopment of the entire subject property and was reliant on the additional approval of the Development Agreement. 7. In 2007, the BOCC approved a request by KLOR for a waiver to the inclusionary housing requirements. The approval and conditions were memorialized in BOCC Resolution # 298- 2007. This approval applied to the redevelopment of the entire subject property and was reliant on the additional approval of the Development Agreement and the major conditional use permit approved by Planning Commission Resolution # P35-07. Following its issuance, Planning Commission Resolution #P35-07 was appealed to the State of Florida Division of Administrative Hearings (DOAH). The appeal (Case 407-5390) was filed within the 30-day public appeal period. Following a review by DOAH, the case was dismissed, documented by a final order of dismissal signed by Bram D. E. Canter, Administrative Law Judge, on June 25, 2008. A KLOR resident named Maria Barroso appealed that order to the Circuit Court (Case #: CA P 08-564). That case was dismissed by agreement on August 18, 2009 as more fully explained in the following paragraph. The site plan approved in Resolution #P35-07 became the subject of litigation in the settled lien foreclosure case (CA P 96-160). As part of that collateral litigation, KLOR fled a petition for declaratory statement within the context of the settled lien foreclosure case, which asked the Court to determine if the site plan that was approved in Resolution #P35- 07 had been validly approved by the KLOR members. On October 10, 2008, the Circuit Court entered an order construing F.S. 719.1055 to mean that one hundred percent of the KLOR members would have to have approved the site plan because, if implemented, the "lots" would be materially altered. KLOR challenged that decision in the Third District Court of Appeals. (Case #: 3d08-2711). On February 4, 2009, the Third District reversed the Circuit Court decision and held that the original site plan had been properly approved even though it had garnered less than 100% approval. See, Key Largo Ocean Resort Co - Op., Inc. v. Monroe County, 5 So.3d 31 (Fla. 3d DCA 2009). Maria Barroso and other KLOR members sought discretionary review of the Third District's decision in the Florida Supreme Court (Case #: SC09-678). On June 11, 2009, the Florida Supreme Court declined to exercise jurisdiction over the case, thus rendering the decision of the Third District final. Jurisdiction over the matter returned to the Circuit Court shortly thereafter. Because Ms. Barroso's issues with the site plan approved in Resolution #P35-07 had been resolved adversely to her as a result of the appellate courts decisions, she dismissed her appeal in CA P 08-564 in August of 2009. On July 13, 2009, the County moved the Circuit Court to ratify and approve the Development Agreement. On August 22, 2009, the Circuit Court granted the County's motion and adopted a "Master Development Schedule ... as a guideline for the parties to implement the Development Agreement." The Master Development Schedule was never implemented because the KLOR Board was recalled and replaced in late 2009. Contemporaneously, the County sought to enjoin the use of the Park for habitation because of numerous life safety violations. After touring the park, the Court granted the injunction KLOR, Key Largo, Letter of Understanding Page 5 of 18 and originally ordered the park to close as of January 15, 2010. That deadline was extended a couple of times but the Court ultimately ordered the park closed for habitation effective July 31, 2010 in an order dated June 22, 2010. In the June 22, 2010 order, the Court ordered that all illegal structures on the property to be demolished by December 31, 2010. Since August 22, 2009 is the most recent effective date for the Development Agreement that has been approved by the Court, the seven year time period for completing the Development Agreement commenced on that date. The redevelopment plan approved under the Development Agreement and Planning Commission Resolution #P35-07 has not been completed. In addition, as the redevelopment plan has not been carried out in full, numerous documented code enforcement violations remain in existence. IV. REVIEW OF PROPOSAL The following land development regulations directly affect the proposal; however, there are other land development regulations not referred to nor described in this letter which may govern future development as well. In addition, there are many additional requirements set forth in the Development Agreement and Planning Commission Resolution #p35-07 that may or may not be described in the letter. 1. The property is currently located within an Urban Residential Mobile Home (URM) district and has a FLUM designation of Residential High (RH). 2. The Planning & Environmental Resources Department does not have a role in determining the internal distribution of parcels among KLOR shareholders. Therefore, Staff cannot consider where individual shareholders may or may not be relocated as a result of the carrying out of the approved or proposed site plan. 3. Please note that it is somewhat inaccurate to describe the interior parcels as lots. The term "lot" is generally used to describe parcels within a platted subdivision. Since the individual parcels within KLOR did not go through the plat review/approval process, they are thereby not platted. In any event, the parcels are often referred to as lots in other documentation. Therefore, for consistency and to cite those other documents, they may be referred to again as such in this letter. However, such referral does not constitute plat approval. 4. The Development Agreement and major conditional use permit approved the construction of 285 permanent, market -rate dwelling units. The Applicant is proposing architectural design guidelines for residential dwelling units (rather than specified model styles), but is not proposing any changes to the type of residential dwelling unit approved (detached, single-family). The Applicant is proposing a set of architectural design guidelines for massing, typical sections, siting, setbacks, floor plans, heights, elevations, front porches, rear porches, standard windows, standard doors, metal roofs, fiber cement horizontal siding, and eave details for each residential dwelling. KLOR, Key Largo, Letter of Understanding Page 6 of 18 Per Section II(C) of the Development Agreement, the uses permitted on the subject property are: 1. The development of not more than 285 lots with one manufactured home or single family -detached detached dwelling unit and accessory structures per lot on the KLOR property, together with the amenities as shown on Exhibit A of the Development Agreement. 2. Accessory structures and uses including: recreational and maintenance facilities, resort offices, bath houses, grill/pub, club and docking facilities including 65 boat slips, wastewater treatment plant and boat/trailer parking. As stated at the pre -application conference, the Applicant is proposing 284 dwelling units, thus decreasing the 285 dwelling units approved by Planning Commission Resolution #P35- 07, and as shown on approved site plan, by a dwelling unit. However, as depicted on the proposed site plan, there are only 283 lots shown. Although the lots are numbered 1 to 284, Staff could not locate a lot numbered 278. Staff assumes that this was an oversight and there will be a Lot 278 shown on any revised site plan submitted to be approved. Pursuant to MCC §130-99, in the URM district, provided density requirements can be met, detached dwelling units may be permitted as -of -right. However, the Development Agreement required approval of the redevelopment plan by the Planning Commission by means of a major conditional use permit application. Pursuant to MCC §130-99, in the URM district, accessory uses may be permitted as -of - right. The Development Agreement and major conditional use permit included the preservation of several existing accessory buildings, including, but not limited to the office, community center (aka clubhouse), grill/pub, tennis/basketball courts, swimming pool and docking facilities (aka marina). The Applicant is not proposing any changes to the development/site plan regarding these accessory buildings and structures. The Applicant will demolish the existing gatehouse and replace it with a new gatehouse. 5. The ROGO shall not apply to the redevelopment, rehabilitation or replacement of any lawfully -established residential dwelling unit which does not increase the number of residential dwelling units above that which existed on the site prior to the redevelopment, rehabilitation or replacement. Therefore, owners of land containing residential dwelling units shall be entitled to one unit for each such unit lawfully -established. The Development Agreement states that 284 permanent, market -rate dwelling units may be reestablished. It also states that an additional unit (285t') may be determined to also be lawfully established upon the provision of documentation verifying the existence of the unit. The major conditional use permit staff report on file states that 285 permanent, market -rate dwelling units may be redeveloped on the site. Therefore, the proposed site plan would not require additional allocations from the ROGO. KLOR, Key Largo, Letter of Understanding Page 7 of 18 6. The Non -Residential Rate of Growth Ordinance (NROGO) shall not apply to the redevelopment, rehabilitation or replacement of any lawfully -established, non-residential floor area which does not increase the amount of non-residential floor area greater than that which existed on the site prior to the redevelopment, rehabilitation or replacement. Therefore, owners of land containing non-residential floor area shall be entitled to one square foot for each such square foot lawfully -established. The major conditional use permit staff report on file states that the floor areas of the existing accessory uses approved serve residential uses are not subject to the NROGO. 7. The proposed site plan would maintain the same land use intensity/residential density as approved under the Development Agreement and major conditional use permit in terms of overall total dwelling units. The following land use intensities apply in the URM district: •a'i�r o� 0 rp _ ,� a r e" �@ o `.'l a q„ ere o r r����,4 r r r r - Home Park buildable acre mote: nesicenriai accessory structures do not impact the land use intensity calculations Per Section II(C) of the Development Agreement, the residential density is one manufactured or single family -detached home per lot. Building intensity for the accessory low to medium intensity commercial retail and office use is limited to the aggregate amounts as shown in Exhibit A of the Development Agreement for such uses. In the major conditional use permit staff report, Staff determined that the site's permanent residential density was protected pursuant to MCC §9.5-268 (now numbered §130-163). Notwithstanding the provisions of §130-157, §130-158 and §130-162, the owners of land upon which a lawfully established dwelling unit or mobile home exists shall be entitled to one dwelling unit for each type of dwelling unit in existence before January 4, 1996. Such legally -established dwelling units shall not be considered as a nonconforming uses. Planning Commission Resolution #P35-07 established 285 market -rate, permanent residential dwelling units as being lawful. Therefore, although the site is over -density to what the current regulation would allow, the existing lawfully -established density of 285 dwelling units is not considered nonconforming. The purpose of MCC §130-161(b), Inclusionary Housing Requirements, is to ensure that the need for affordable housing is not exacerbated by new residential development and redevelopment of existing affordable housing stock. Its intent is to protect the existing affordable housing stock, to permit owners of mobile homes and mobile home spaces to continue established mobile home uses consistent with current building and safety standards and regulations and to ensure that, as residential development, redevelopment and mobile home conversions occur, plan policies regarding affordable housing are implemented. KLOR, Key Largo, Letter of Understanding Page 8 of 18 A new development or redevelopment of this type and magnitude would normally be subject to the inclusionary housing requirements. However, 2007, the BOCC approved a request by KLOR for a waiver to the inclusionary housing requirements. 9. In the URM district, there is a required open space ratio of 0.20. Therefore, at least 20 percent of the site (999,702 SF) must remain open space. Therefore, per the Land Development Code, the site is required to provide 199,941 SF of open space. However, per Section II(C) of the Development Agreement, the community open space shall be no less than 102,000 SF. According to the approved site plan, 106,603 SF of open space was to be provided. The proposed site plan indicates that 141,313 SF of open space would be provided. This is an increase of 34,710 SF of open space area or approximately 33%. 10. In the URM district, the required non -shoreline setbacks are as follows: Front yard — 101; Rear yard — 10% and Side yard — 10'/15' (where 10' is required for one side and 15' is the minimum combined total of both sides). However, according to the approved site plan, the Planning Commission approved a greater 20' setback along the perimeter property lines of the site. In addition, the approved site plan specifically labeled the setbacks as follows: Street Side Setback (US 1); West Interior Side Setback; Altered Shoreline Setback; and Northeast Interior Side Setback. In addition, per the approved site plan and Condition 9 of Planning Commission Resolution # P35-07, a 5' setback (front, rear and side) was required for structures on each individual non -platted lot. Setbacks are being measured from the drip lines of the structures resulting in an approximate minimum separation of vertical walls of at least 11'. Note: In general, MCC §130-186 does not require setbacks for non -platted lots within a larger, aggregated development. Due to cooperative ownership of KLOR and the development's similarity with a platted subdivision, interior setbacks were required as part of the approval process. In addition, pursuant to Condition 9 of Planning Commission Resolution #P35-07: a) Stairs for first floor access (of elevated structures). The stairs shall be made from a fire resistant material such as concrete or metal; and b) Stairways shall not face each other (see attached for example); and c) Air conditioner compressor units shall be located at the rear of each unit, elevated to above base flood elevation; and d) Optional elevators units to accommodate the needs of physically challenged residents are available. All mechanical components shall be located above base flood. As shown on the proposed site plan, part of the existing office building and an existing trash collection area are located in the required 20' setback along the US 1 property line. These nonconforming structures were approved to remain on the approved site plan and therefore may remain in their current configuration as shown on the proposed site plan. KLOR, Key Largo, Letter of Understanding Page 9 of 18 11. There is a shoreline setback for structures along the shoreline. In addition, there are shoreline open space requirements. The existing building adjacent to the boat slips and "Marina Drive" are nonconforming to the shoreline setback requirements. However, these nonconforming structures were approved to remain on the approved site plan and therefore may remain in their current configuration as shown on the proposed site plan. The proposed site plan does not provide for any additional encroachment into the shoreline setback. For new structures, MCC §118-12 requires a 20' setback as measured from the mean high water line for principal structures and 10' for accessory structures. Not enough information was provided to determine compliance with the shoreline open space requirements. In no event shall the combined area of all structures exceed 60% of the shoreline setback. Note: According to the major conditional use permit staff report, there has been a petition made to the Department of Environmental Protection to permit an increase in the number of dock slips. The proposal complies with all shoreline setback requirements. However, these slips are for unit owners only and cannot be rented, leased, or sold. Further, the total number of slips may not exceed the total number of dwelling units. 12. As approved, 2 parking spaces are to be provided for each dwelling unit (with both spaces located on the same lot as the dwelling unit). Further, 29 additional parking spaces are to be provided (5 of which to be designated for disabled persons only) within common areas for overflow and guest parking. As depicted on the proposed site plan, each dwelling unit would have 2 on -lot parking spaces and there would be 62 parking spaces (7 of which to be designated for disabled persons only) within common areas for overflow and guest parking. This is an increase of 33 spaces for common use. 13. A Scenic Corridor bufferyard, major street bufferyard and several land use district and bufferyards are required. The landscape plan submitted by the Applicant appears to provide the appropriate bufferyards. Required bufferyards include a Scenic Corridor bufferyard `D', which must be provided for the portion of the hammock along US 1 (MCC § 114-127). The indicated district bufferyards on the landscape plan are correctly identified. The proposed landscaping meets these requirements. 14. Parking lot landscaping is not required. However, Staff recommends that landscaping be provided for the common areas (clubhouse, restaurant, office, etc.). V. OTHER ISSUES CONCERNING THE PROPOSAL 1. Please note that this letter only addresses the proposed modifications to the approved site plan. At the pre -application conference, the Applicant did not state any proposed deviations KLOR, Key Largo, Letter of Understanding Page 10 of 18 to the Development Agreement's or the major conditional use permit's language, standards, conditions, permitted uses and/or timeframes. 2. The development agreement approved a conceptual plan of action to be followed. Pursuant to Section II(F) of the Development Agreement, KLOR was required to submit a complete site redevelopment plan, in the form of a major conditional use permit application, to Monroe County for review within 120 days of the effective date of the Development Agreement which was nominally September 24, 2006'. This action was carried out with the submittal of the major conditional use permit application on May 4, 2007. However, there are additional deadlines which must be met. There is no language in the Development Agreement prohibiting the Applicant from requesting and receiving revisions to the approved site plan and major conditional use permit so long as the revisions are consistent with the Development Agreement. Following a review of the proposed site plan, Staff has determined that the proposed revisions would be in compliance with the Development Agreement. Therefore, the Development Agreement would not have to be amended to carry out the proposed revisions. However, the Applicant should be aware that Staffs processing of the revisions to the approved site plan could impact other timeframes/deadlines provided in the Development Agreement. If the Applicant cannot meet required timeframes/deadlines due to the revision process, the Development Agreement will have to be amended. Otherwise, the Applicant risks breach of the Development Agreement pursuant to Section II(H). 3. Staff has determined that the proposed changes require major deviation approval. Please find the application attached. Pursuant to MCC §110-73(b)(4), if the holder of an approved conditional use wishes to make an adjustment to the approval that is not a minor deviation, approval of the Planning Commission in accordance with the provisions of §110-73(b)(5) must be obtained. Pursuant to MCC §110-73(b)(5)c., the Planning Commission may authorize adjustments to the approved conditional use permit when such adjustments appear necessary in light of technical or engineering considerations first discovered during actual development and not reasonably anticipated during the initial approval process. Such adjustments shall be consistent with the intent and purpose of the conditional use approval as permitted, and shall be the minimum necessary to overcome the particular difficulty. No adjustment shall be inconsistent with the requirements of the Land Development Code. Prior to considering action on such adjustments, the Planning Commission shall make inquiry of any person having information that may relate to the basis for consideration of an adjustment, but shall act as promptly and as expeditiously as possible. If the Planning Commission determines that an adjustment is necessary, it may, without public hearing, approve the following adjustments, provided that such adjustments do not have the effect of reducing the open space required under the provisions of MCC § 130-157: 1) Alteration of the bulk regulations 1 However, as more fully set forth above, the Court modified the effective date of the Development Agreement to August 22, 2009 due to the protracted litigation over the approval of the site plan. KLOR, Key Largo, Letter of Understanding Page 1 I of 18 for any one structure by not more than five percent; 2) Alteration of the location of any one structure or group of structures by not more than 10'; and 3) Alterations of such other requirements or conditions as were imposed in the approval of the conditional use or in approval of the final development plan by not more than five percent or, in the case of location, a variation of not more than 10' from the location approved in the final plan, so long as in all cases such adjustments are in accord with the parameters established in the conditional use approval. 4. Per the major conditional use permit staff report, 12 different models of housing were approved. Renderings and floor plans of these units were included in the major conditional use permit application. At the pre -application conference, the Applicant stated interest in modifying the options of housing. This would not affect the site plan or conditions in the Development Agreement. At the public hearing to consider the major deviation application, the Applicant can request that the Planning Commission consider modifying the options of housing. Otherwise, the types of housing approved will have to be met. 5. Per the major conditional use permit staff report, a phasing plan was approved: Timely notice shall be given to individual unit lessees and owners for the attainment of proper permitting pursuant to MCC. The applicant has provided a matrix showing which modular model or models can be placed on each individual unit. There are a few units which are constricted due to the size of the unit and the internal setbacks to one (1) or two (2) units, but the majority of unit owners will be able to choose from three (3) or more units. The County will accept building permits only during the appropriate phasing period for corresponding lot numbers and only by contractors for buildings and floor -plans approved by the KLOR Board of Directors and this conditional use permit. Phase 1: Boat slip area including installation of wet fire suppression system and lighting system to reduce adverse affects on marine life to be installed. Applications are in process with DEP & SFWMD. No time frame has been provided by the applicant for this phase. Phases 2-6 each include the complete removal and replacement of all infrastructure including water, sewer, and electric lines. Community lighting will be installed in each phase. Phase 2 will replace the following units: 29-52; 189-222; 243-250. Additionally, the required bufferyard on the south west part of property and along a portion of US I is to be planted. Site demo for Phase 2 is scheduled to begin on October 30, 2007. Notice shall be provided to these unit owners upon approval of the SRP and KLOR, Key Largo, Letter of Understanding Page 12 of 18 conditional use permit by the Planning Commission and exemption from inclusionary housing standards by the BOCC in August. Phase 3 will replace the following units: 143-188; 243-242; 251-256. This phase also includes parking for the community center. Site demo for Phase 3 is scheduled to begin on January 2008. Notice will be provided to these unit owners upon approval of the SRP and conditional use permit by the Planning Commission and exemption from inclusionary housing standards by the BOCC no later than October 2007. Phase 4 will replace the following units: 46a; 71-142; 257, 258. Phase 5 will replace the following units: 1-22; 53-70; 260-284. This phase will complete the required bufferyard required along US 1. In addition, rehabilitation of the tropical hardwood hammock, and salt marsh buttonwood will take place. Phase 6 will replace the following units: 23-28; 223-233, 259. Additionally, parking for the grill/pub area will be provided and the guest parking spaces will be finished. At the public hearing to consider the major deviation application, the Applicant must request that the Planning Commission consider modifying the phasing plan. Otherwise, the phasing plan approved will have to be met. It should be noted due to expired dates and the proposed modifications to lot layout, Staff does not believe the existing phasing plan can be met. It is noted that the Court's order of June 22, 2010 also contemplate that the phasing plan will be replaced by a complete demolition of all illegal structures at the park prior to consideration of any requests to re -occupy the park. The Applicant is requesting that the phasing plan be vacated due to the following reasons (provided by the Applicant): Explanation: Due to delays arising from a. the difficulties of relocating indigent resident shareholders and tenants from the premises until July 31, 2010; b. the recall of the Board of Directors in 2009 and the extensive litigation related to the challenge to that recall; c. the failure of shareholders to consent voluntarily to the removal or demolition of their mobile homes or other personal property on their respective parcels; and d. the vote of the majority of the shareholders approving a revised site plan, KLOR was unable to comply with demolition and reconstruction phases proposed in the original Development Agreement. As a result, the demolition of the parcel in phases as proposed in the Development Agreement was not feasible nor is it practical. Therefore, the Court entered its June 22, 2010 order modifying the phasing in the Development Agreement to require demolition to be completed by December 31, 2010 and to not allow re -habitation to occur until demolition of all illegal structures was completed. Because the primary reason that the County entered into the Development Agreement was to KLOR, Key Largo, Letter of Understanding Page 13 of 18 eliminate hazards arising from the multitude of health, safety, and building violations in the park, the phasing of the reconstruction is no longer necessary because the demolition of the illegal structures has been ordered to be accelerated and is no longer related to the phasing of reconstruction. As a result, the Applicant shall continue to diligently complete the demolition of the illegal structures in compliance with the Court order and take all other actions necessary to bring the park into compliance with the requirements of the URM district and the Development Agreement. Upon the final approval of the proposed major deviation, the County and the Applicant will prepare a construction schedule for rebuilding of all infrastructure and the bringing of all utilities to the boundaries of each parcel so that each parcel shall be ready for construction of detached single family homes. Any related modifications of the Development Agreement shall be submitted pursuant to the terms of the Development Agreement. If the Planning Commission determines that the phasing plan can be vacated due to the preceding reasons provided by the Applicant, the Applicant agrees to attach the following notation to the plans: The Circuit Court entered its June 22, 2010 order modifying the phasing in the Development Agreement to require demolition to be completed by December 31, 2010 and to not allow re -habitation to occur until demolition of all illegal structures was completed. The phasing of the reconstruction is eliminated. Upon the final approval of the proposed major deviation, the County and the Applicant will prepare a construction schedule for rebuilding of all infrastructure and the bringing of all utilities to the boundaries of each parcel so that each parcel shall be ready -to -build detached single family homes. 6. Following initial coordination with the utilities, part of Condition 10 on Planning Commission Resolution #P35-07 has been called into question by the Florida Keys Electric Cooperative (FKEC). Condition 10 states "Prior to the issuance of a C.O., any new single family permanent residential dwelling unit shall be equipped with the following to support energy and conservation standards pursuant to MCC §9.5-326 [note: this section has since been renumber to § 114-45]: a) Energy Efficient appliances; b) Ultra efficient and low flow water fixtures; c) Energy efficient windows; d) A high R-Factor insulation plan; e) Tnnkless super efficient water heaters; and f) Metal Roofs. FKEC is concerned with the impact of installing 284 or 285 tankless super efficient water heaters on the site. As the removal or modification of this part of the condition will not affect the site plan, Staff recommends that the Applicant coordinate with FKEC prior to any application submittal for a minor deviation to determine what type of energy efficient water heaters can be installed. At the public hearing to consider the major deviation application, the Applicant can request that the Planning Commission consider a revision to the condition. Otherwise, this condition will have to be met as written and tankless super efficient water heaters will be required in all units. 7. The Applicant requested that Staff provide a timeline for the process of applying for approval to a site plan revision. The Planning & Environmental Resources Department KLOR, Key Largo, Letter of Understanding Page 14 of 18 provided a letter to Gicela Pino on May 19, 2010 which, in general term, discussed the status of the approved site plan, Monroe County's position regarding revisions to the approved site plan and the timeframe for such revisions to be approved/denied. Staff requests that the Applicant retain the May 19, 2010 letter for their records. To summarize the general timeline provided in the May 19, 2010 letter (note: the following timeline does not include amending to the Development Agreement, appeal of the major deviation application or other litigation): First, Staff must confirm that the proposed revisions to the approved site plan were approved by the shareholders of KLOR on June 5, 2010. Staff requests that KLOR provide documentation of the specific proposed revised site plan that was voted on by the KLOR membership so it can be determined if any material changes have been made to the proposed revised site plan that is submitted to the County for consideration. Staff also requests that proof of the results of that vote be provided as well. Second, a complete major deviation application must be submitted to the Planning & Environmental Resources Department. Its process is as follows: Pursuant to MCC § 110-4, within 15 working days after an application for development approval has been received, the Planning Director shall determine whether the application is complete. If the director determines that the application is not complete, he shall serve a written notice on the applicant specifying the application's deficiencies. The director shall take no further action on the application unless the deficiencies are remedied. If the director fails to make a determination of completeness within 15 working days, the application is deemed complete. Once the application is deemed complete, the director shall cause the application to be evaluated within 10 working days for compliance with the county's land use regulations. If the director determines that the application is not in compliance, he shall serve a written notice explaining why this is so; and the application shall be denied. If the application is determined to be in compliance with these land use regulations, the director shall notify the applicant and the secretary of the Planning Commission so that a public hearing may be scheduled no earlier than 30 days following a determination of compliance and a notice given, if required, and shall convene the development review committee. A determination of completeness shall not constitute a determination of compliance with the substantive requirements of the Land Development Code. Following a determination of compliance, the application will be first scheduled and heard by the development review committee for review and comment. After the Development Review Committee meeting, the application will be scheduled and heard by the Planning Commission for review and approval/denial. KLOR, Key Largo, Letter of Understanding Page 15 of 18 Following the Planning Commission public hearing at which a decision is made, Staff has 30 calendar days to draft and submit a resolution reflecting that decision to the Planning Commission Chair for signature and rendition. After the Planning Commission Chair signs the resolution, there is a 30 calendar day appeal period. During these 30 days, the resolution shall be subject to appeal as provided in MCC §102-185. Following the resolutions passing of the appeal period or resolution/dismissal of an appeal, the resolution is rendered to the State of Florida Department of Community Affairs (DCA). The instrument shall not take effect for 45 days following the rendition of the DCA. During these 45 days, the DCA may appeal the instrument to the Florida Land and Water Adjudicatory Commission. Note: If the resolution is appealed under Monroe County Code or by the DCA, the above time limits shall be tolled until the appeals are resolved. 8. The Applicant inquired as the submittal requirements for a major deviation. An application must have the following to be deemed complete by Staff: • Complete conditional use permit major deviation application; and • Correct fee; and • Proof of ownership (i.e. Warranty Deed); and • Current Property Record Cards from the Monroe County Property Appraiser; and • Copy of Signed Resolution; and • Copy of Approved Site Plan; and • Signed and Sealed Site Plan, prepared by a Florida registered architect, engineer or landscape architect (drawn to a scale of 1 inch equals 20 feet, except where impractical and the Planning Director authorizes a different scale). At a minimum, the site plan should include all of the information provided on the approved site plan as well as all requested adjustments. Areas to be adjusted should be marked with diagonal lines or otherwise clearly delineated. If applicable, the following must be submitted in order to have a complete application submittal: • Notarized Agent Authorization Letter (note: authorization is needed from all owner(s) of the subject property) In addition Section II(F) of the Development Agreement required the following (note: there is some overlap with the major deviation application submittal requirements): A site plan depicting detailed wastewater collection system, stormwater management, landscaping, access and road improvements, fire suppression facilities, and utility relocations; and KLOR, Key Largo, Letter of Understanding Page 16 of 18 • A site plan for manufactures and single family detached home lots depicting the construction envelope on each leased space for the siting of compliant manufactures and single family detached homes and accessory structures, and including plans for adequately sized wastewater collection facilities. In addition, Staff recommends that the Applicant provide the following non -required items: • Notation on plans concerning completion of demolition and construction schedule; and • Architectural Design Guidelines with Drawings; and • Landscape Plan by a Florida registered landscape architect. At a minimum, the landscaping plan should include the following: Date, north point and graphic scale; Boundary lines of site, including all property lines and mean high-water lines; Locations and dimensions of all existing and proposed structures and drives; Open space preservation areas; Existing natural features; Size and type of buffer yards including the species, size and number of plants; Parking lot landscaping including the species, size and number of plants; Specimen trees, or threatened and endangered plants to be retained and those to be relocated or replaced; and Transplantation plan (if required); and • Conceptual Drainage Plan (with drainage calculations; existing and proposed topography; all drainage structures; retention areas; drainage swales; and existing and proposed permeable and impermeable areas; and • Written request to modify Condition 10 on Planning Commission Resolution #P35-07. 9. The Applicant asked whether under the tier system, the subject property would be affected if the property owner unified the parcels to bring it under a single real estate number. The property currently has two tier designations. RE 00483400.000000 is Tier 3. RE 00483390.000000 is currently undesignated, with an initial designation of Tier 3A and a preliminary recommendation to be re -designated Tier 1. As the parcel that is undesignated is not developed, nor is the Applicant seeking to develop the parcel, Staff recommends that the Applicant not proceed with unifying the parcels under a single real estate number at this time. Such an action would not automatically result in a Tier 3 designation for the entire parcel as Staff would be required to evaluate the newly created parcel as a whole to ensure that it has the correct tier designation. This review may take additional time and could hinder the processing of the major conditional use permit revisions. It is important to note that the tier system is mainly used as a scoring mechanism for new residential dwelling unit and non-residential floor area allocations. As the site is over density and no clearing is proposed, the tier system and regulations related to a tier designation may not affect the redevelopment proposal. 10. Prior to the issuance of any building permit, proposed development shall be found in compliance by the Monroe County Building Department and the Monroe County Public KLOR, Key Largo, Letter of Understanding Page 17 of 18 Works Division. Staff recommends that the Applicant coordinate with these offices prior to application submittal. The Office of the Fire Marshal was significantly involved in the approval of the site plan. Staff strongly recommends that the Applicant coordinate with the Office of the Fire Marshal prior to any application submittal. Steven Zavalney, Captain Fire Prevention Bureau, was present at the pre -application conference and provided verbal comments; however his written comments and conclusions are not provided in letter. Pursuant to MCC § 110-3, you are entitled to rely upon the representations set forth in this letter as accurate under the regulations currently in effect. This letter does not provide any vesting to the existing regulations. If the Monroe County Code or Year 2010 Comprehensive Plan are amended, the project will be required to be consistent with all regulations and policies at the time of development approval. The Department acknowledges that all items required as a part of the application for development approval may not have been addressed at the meeting, and consequently reserves the right for additional comment. You may appeal decisions made in this letter. The appeal must be filed with the County Administrator, 1100 Simonton Street, Gato Building, Key West, FL 33040, within thirty (30) calendar days from the date of this letter. In addition, please submit a copy of your application to Planning Commission Coordinator, Monroe County Planning & Environmental Resources Department, 2798 Overseas Highway, Suite 410, Marathon, FL 33050. We trust that this information is of assistance. If you have any questions regarding the contents of this letter, or if we may further assist you with your project, please feel free to contact our Marathon office at (305)289-2500. Sincerely yours, Townsley Schwab, Senior Director Planning & Environmental Resources CC: Robert B. Shillinger, Chief Assistant County Attorney Christine Hurley, Director of Growth Management Ronda Norman, Director of Code Enforcement Steve Zavalney, Captain Fire Prevention Bureau Joseph Paskalik, Building Official Joseph Haberman, Principal Planner KLOR, Key Largo, Letter of Understanding Page 18 of 18 RESOLUTION 242 - 2006 A RESOLUTION BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, APPROVING THE DEVELOPMENT AGREEMENT BETWEEN KEY LARGO OCEAN RESORTS, CO-OP, INC., (KLOR) AND MONROE COUNTY TO COMPLY WITH COURT ORDERED MEDIATION WHICH RESULTED IN A SETTLEMENT AGREEMENT SIGNED BY THE PARTIES IN JUNE 2003 AND APPROVED BY THE COURT ON AUGUST 4, 2003, WHICH AUTHORIZED KLOR TO SUBMIT AND APPLY FOR A DEVELOPMENT AGREEMENT. WHEREAS, on May 12, 2004, Key Largo Ocean Resorts Co -Op, Inc. (KLOR) filed with the Planning Department a proposed development Agreement (Agreement) pursuant to Sections 163.3220 — 3243, F.S. and Sections 9.5-101 and 102 of Monroe County Code (MCC); and WHEREAS, after consideration of the report and recommendation of staff and the Planning Commission and testimony from the public and the documentation of the history of KLOR, the Board of County Commissioners (BOCC) makes the following findings of fact and conclusions of law: 1. KLOR is the owner of real property on Key Largo, Monroe County, Florida, located at approximately mile marker 95 of US Highway 1 fronting on the Atlantic Ocean (Property), the legal description of which is contained in Exhibit A — Survey of the Key Largo Ocean Resorts Property, attached hereto and made a part hereof (Survey). 2. Two hundred eighty-five (285) lots exist within the KLOR resort which provide for seasonal transient and permanent housing, together with amenities including marina, tennis courts, swimming pool, recreation building, boat ramp, clubhouse, boat trailer parking, open space and administrative offices. 3. The Resort has been operating for over twenty-five (25) years providing the lease of lots to KLOR stockholders who have placed their individually owned, recreational vehicles, mobile homes or park model homes on the lots shown on the Survey of the property. 4. From the Resort's inception until approximately 1989, Monroe County provided valid building permits to locate mobile homes and park model homes on the Property requiring that they be tied down for hurricane force wind protection. 5. The County provided other building permits for screen room enclosures and other permanent structures on the Property. Page 1 of 6. The Monroe County 2010 Comprehensive Plan, until December 2004, designated all the parcels of the Property as "Mixed Use/Commercial" on its Future Land Use Map. 7. The Property had been designated as being within the "Recreational Vehicle" (RV) land use district from September 15, 1986, until February 2005, which allowed only transient use of properties within the district and not permanent dwellings or structures. 8. In 1997 the Resort purchased approximately 2.0 acres of additional property consisting of both uplands and wetlands designated "Improved Subdivision", also known as the Northeast 100 feet of the Southeasterly 1/2 of Tract 9, SOUTHCLIFF ESTATES, in order to increase the open space area of the Property and to provide additional setbacks, which property is shown as Residential Medium on the County's Future Land Use Maps. 9. On January 16, 2002, the Monroe County Board of County Commissioners by eminent domain action acquired 9,318 square feet of the aforementioned portion of Tract 9. 10. Over time, structures have been placed within the Resort without the benefit of a building permit, or with a permit erroneously issued by Monroe County or lawfully constructed for which no permit history can be found. 11. The Resort has the appearance of a mobile home park as the result of the permanent structures being placed in the Resort and the improvements to them being with or without benefit of permit. 12. In 1994 and 1995, the Monroe County Code Enforcement Department began to actively pursue compliance with the requirements of recreational vehicle zoning of the Resort and construction without the benefit of properly issued building permits. 13. As a result of the County's action, KLOR brought legal action against the County seeking relief from the application of the requirements of the recreational vehicle land use district. 14. The Circuit Court of Monroe County granted an injunction against the County, Case Number 96-20160-CA-22, to allow KLOR to seek a change of its land use district designation from "Recreational Vehicle" (RV) designation to "Urban Residential Mobile Home" (URM) in order to resolve some of the code enforcement issues. 15. The Court ordered the parties into Mediation, which resulted in a Settlement Agreement signed by the parties in June 2003, approved by the Court on August 4, 2003, which authorized KLOR to submit and apply for a Development Agreement. Acting in reliance on the Settlement Agreement, KLOR submitted a proposed Development Agreement to the County. 16. KLOR tiled an application to amend the Future Land Use Map designation from Mixed Use/Commercial to High Density Residential and from Residential Medium Page 2 of 4 to Residential High. 17. On August 18, 2004, by unanimous vote, the BOCC approved the amendments to the Future Land Use Map. 18. On August 18, 2004, the BOCC also unanimously approved amendments to the Land Use District Map to classify the property as Urban Residential Mobile Home. 19. The Florida Department of Community Affairs found the proposed amendments to the Future Land Use Map in compliance in December 2004, and approved the amendments to the Land Use District Map in February 2005. 20. On June 22, 2005, during the review process, the Monroe County Planning Commission, after due notice and public participation in the hearing process, reviewed the Agreement and directed staff to make changes to the Agreement. 21. On July 27, 2005, September 28, 2005, November 15, 2005, December 20, 2005 and January 25, 2006, the Monroe County Planning Commission, after due notice and public participation in the hearing process reviewed the Agreement and directed staff to make further changes to the Agreement. 22. On February 22, 2006, the Monroe County Planning Commission, after due notice and public participation in the hearing process reviewed the Agreement and recommended approval to the Board of County Commissioners of the Agreement as amended. 23. The Monroe County Board of County Commissioners (Board) is the local government body having jurisdiction over the review and approval of the Agreement, in accordance with Sections 163.3220 — 3243, F.S. 24. The public notice requirements of Monroe County for consideration of the Agreement have been met. 25. The public was afforded an opportunity to participate in the public hearing and all parties were afforded the opportunity to present evidence and argument on all issues. 26. At a regular hearing dated May 16, 2006, the Board reviewed the above referenced documents, the related recommendations of the Planning Commission, as well as all related testimony and evidence submitted by the parties and members of the general public. (REMAINDER OF PAGE LEFT INTENTIONALY BLANK) Page 3 of 4 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS, MONROE COUNTY, FLORIDA, THAT THE REFERENCED DEVELOPMENT AGREEMENT BETWEEN MONROE COUNTY AND KEY LARGO OCEAN RESORTS, CO-OP, INC. ATTACHED HERETO AND INCORPORATED BY REFERENCE IS HEREBY APPROVED. PASSED AND ADOPTED by the Board of County commissioners of Monroe County, Florida, at a regular meeting held on the 21 s tday of June 2006. Mayor Charles "Sonny" McCoy Yes Mayor Pro Tern Murray E. Nelson Yes Commissioner George Neugent Yes Commissioner Dixie M. Spehar Yes Commissioner David P. Rice Yes BOARD OF COUNTY COMMISSIONERS OF MONROE COIkTY, FLORIDA By _ kAA Mayor Charles "Sonn " Coy L. KOLWAGE, GLG%Zk �� C IQ�S�4� Deputy Clerk r.a 3o c C" s c11 oc")• r m O D N Page 4 of 4 i DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (Agreement) is binding on the "effective date" as set forth herein between Monroe County, a political subdivision of the State of Florida (County), and Key Largo Ocean Resorts, Co-op, Inc. (KLOR). WITNESSETH WHEREAS, KLOR is the owner of real property on Key Largo, Monroe County, Florida, located at approximately mile marker 95 of US Highway 1 fronting on the Atlantic Ocean (Property), the legal description of which is contained in Exhibit A — Survey of the Key Largo Ocean Resorts Property, attached hereto and made a part hereof (Survey); and WHEREAS, there are two hundred eighty-five (285) lots within the KLOR resort which provide for seasonal transient and permanent housing, together with amenities including marina, tennis courts, swimming pool, recreation building, boat ramp, clubhouse, boat trailer parking, open space and administrative offices (Resort); and WHEREAS, the Resort has been operating for over twenty-five (25) years providing the lease of lots to KLOR stockholders who have placed their individually owned, recreational vehicles, mobile homes or park model homes on the lots shown on the Survey of the property; and WHEREAS, from the Resort's inception until approximately 1989, Monroe County provided valid building permits to locate mobile homes and park model homes on the Property requiring that they be tied down for hurricane force wind protection; and WHEREAS, the County provided other building permits for screen room enclosures and other permanent structures on the Property; and WHEREAS, the Resort and the individuals leasing lots from KLOR reasonably relied upon the permits granted by the County and the oral representations made by members of the building department from the Resort's inception; and WHEREAS, the Monroe County 2010 Comprehensive Plan, until December 2004, designated all the parcels of the Property as "Mixed Use/Commercial" on its Future Land Use Map; and WHEREAS, the Property had been designated as being within the "Recreational Pagel of16 January 31, 2006 Vehicle" (RV) land use district from September 15, 1986, until February 2005, which allowed only transient use of properties within the district and not permanent dwellings or structures; and WHEREAS, in 1997' the Resort purchased approximately 2.0 acres of additional property consisting of both uplands and wetlands designated "Improved Subdivision", also known as the Northeast 100 feet of the Southeasterly 1/2 of Tract 9, SOUTHCLIFF ESTATES, in order to increase the open space area of the Property and to provide additional setbacks, which property is shown as Residential Medium on the County's Future Land Use Maps; and WHEREAS, on January 16, 2002, the Monroe County Board of County Commissioners by eminent domain action acquired 9,318 square feet of the aforementioned portion of Tract 9; and WHEREAS, over time, structures have been placed within the Resort without the benefit of a building permit, or with a permit erroneously issued by Monroe County or lawfully constructed for which no permit history can be found; and WHEREAS, the Resort has the appearance of a mobile home park as the result of the permanent structures being placed in the Resort and the improvements to them being with or without benefit of permit; and WHEREAS, in 1994 and 1995, the Monroe County Code Enforcement Department began to actively pursue compliance with the requirements of recreational vehicle zoning of the Resort and construction without the benefit of properly issued building permits; and WHEREAS, as a result of the County's action, KLOR brought legal action against the County seeking relief from the application of the requirements of the recreational vehicle land use district; and WHEREAS, the Circuit Court of Monroe County granted an injunction against the County, Case Number 96-20160-CA-22, to allow KLOR to seek a change of its land use district designation from "Recreational Vehicle" (RV) designation to "Urban Residential Mobile Home" (URM) in order to resolve some of the code enforcement issues; and WHEREAS, the Court ordered the parties into Mediation, which resulted in a .S Page 2 of 16 January 31, 2006 s Settlement. Agreement signed by the parties in June 2003, approved by the Court on August 4, 2003, which authorized KLOR to submit and apply for a Development Agreement; and WHEREAS, acting in reliance on the Settlement Agreement, KLOR submitted a proposed Development Agreement to the County; and WHEREAS, KLOR filed an application to amend the Future Land Use Map designation from Mixed Use/Commercial to High Density Residential and from Residential Medium to Residential High; and WHEREAS, On August 18, 2004, by unanimous vote, the BOCC approved the amendments to the Future Land Use Map; and WHEREAS, On August 18, 2004, the BOCC also unanimously approved amendments to the Land Use District Map to classify the property as Urban Residential Mobile Home: and WHEREAS, the Florida Department of Community Affairs found the proposed amendments to the Future Land Use Map in compliance in December 2004, and approved the amendments to the Land Use District Map in February 2005; and WHEREAS, both the County and KLOR realize that the change of the land use designation will not resolve all of the code enforcement issues at the Resort; and WHEREAS, both the County and KLOR recognize that the public noticing and hearing procedures shall follow the requirements of F.S. 163.3225, which require a public hearing in front of both the Planning Commission and the Board of County Commissioners for consideration of a Development Agreement; and WHEREAS, Exhibit B - Structure Status and Compliance Actions at Key Largo Ocean Resorts and Verification of Structure Age/Insurance, attached hereto and made a part hereof, contains an agreed upon comprehensive listing of all structures and development activity {i.e. tie -downs) permitted or not on each of the two hundred eighty-five (285) lots within the Resort and lists all of the permits previously granted and the requirements for additional permits required for all structures not vested or otherwise protected, which data has been reviewed and updated through site visits, review of county and KLOR records to reflect existing conditions; and Page 3 of 16 January 31, 2006 WHEREAS, the County and KLOR agree that the data presented in Exhibit B attached hereto is supplemented with data collected by the Monroe Coulity Property Appraiser's Office between August 1995 and January 1996, and, as such, represents a statement of the conditions of the Resort at that time and any subsequent permits issued that met the requirements of the County Land Development Regulations and Building Code at that time, but it may not reflect all lawful activity on the property for which the County does not have, accurate records, but are demonstrable on the site, such as tie - downs, slabs and similar activities that could have been lawfully permitted; and WHEREAS, Section 163.3220, Florida Statutes, authorizes the County to enter into agreements with landowners and/or governmental agencies to encourage a stronger commitment to comprehensive and capital facilities planning, ensure the provision of adequate public facilities for development, encourage the efficient use of resources, and reduce the economic cost of development; and WHEREAS, the Monroe County Year 2010 Comprehensive Plan (Comprehensive Plan) contains objectives and policies that seek to reduce the frequency of uses inconsistent with the Land Development Regulations and the Future Land Use Map (Objective 101.8) and the objectives of the Settlement Agreement between KLOR and the County; and WHEREAS, the County finds that entering into this Agreement furthers the purposes, goals, objectives, and policies of the Comprehensive Plan. NOW THEREFORE, the parties do hereby agree as follows: 1. PURPOSES The purposes of this Agreement are as follows: A. To agree on a phased program of remedial actions and Resort wide improvements to achieve compliance with the requirements of the Urban Residential Mobile Home district, such that not more than 285 of the existing manufactured homes and RV units may be replaced with compliant manufactured homes or single family -detached homes elevated'to the levels required by the County's Flood Plain regulations. B. To allow the Resort to retain temporarily pursuant to the terms of this Agreement some of the conforming, or accessory to a permitted use structures, Page 4 of 16 January 31, 2006 and uses permitted by the County prior to 1990 or established as otherwise lawfully in existence on the property prior to 1990. C. To allow the KLOR to retain as conforming the permitted existing grill/pub, bathrooms, office and docking facilities for 65 wet slips and club establishments as accessory uses to the principal residential uses. D. To establish specific development and permit approvals and processes required bringing the Resort into compliance with County Land Development Regulations, Building and Fire Safety Codes. H. AGREEMENT REQUIREMENTS The parties recognize the binding effect of Sections 163.3220-163.3243, Florida Statutes, as to the form and content of this Agreement and in accordance therewith set forth and agree to the following: A. Legal Description and Ownership The legal descriptions for the properties that are subject to this Agreement are set forth in Exhibit A — Survey of the Key Largo Ocean Resorts Property. B. Duration of Agreement This Agreement shall remain in effect for seven (7) years from its effective date as defined herein. It is the intention of Monroe County to promote rational and timely development of the Property to maximize best land use management practices consistent with the landowner's rights and commitments described herein. C. Permitted Uses The development and uses permitted on the Property, including population densities, building intensities and structure heights and total acreage of the site are: 1. The development of not more than two hundred eighty-five (285) lots with one manufactured home or single family -detached dwelling unit and accessory structures per lot on the KLOR Property, together with the amenities as shown on the Survey (Exhibit A). 2. Accessory structures and uses including: recreational and maintenance facilities, resort offices, bath houses, grill/pub, club and docking facilities including 65 boat slips, wastewater treatment plant and boat/trailer parking. 1 0 Page 5 of 16 January 31, 2006 3. The unit density is one manufactured or single family -detached home per lot, which is 13.6_units per gross acre. The population density is estimated at approximately 570 persons. 4. Building intensity for the accessory low to medium intensity commercial retail and office use is limited to the aggregate amounts as shown on Exhibit A for such uses. Community open space shall be no less than 102,000 square feet. 5. Building height is limited to 35 feet. 6. Total acreage of the site is 20.9 acres. For the duration of this Agreement, the parties agree that any and all of the approved development shall comply with and be controlled by this Agreement, the Land Development Regulations, and the Comprehensive Plan governing the development of the land effective when Monroe County and KLOR execute this Agreement as authorized by Section 163.3220, Florida Statutes. D. Public Facilities 1. The Florida •Keys Aqueduct Authority provides domestic potable water to the Property. 2. Electric service is provided by Florida Keys Electric Cooperative to the Property. 3. Solid waste service is provided to the Property by a solid waste collection system franchised by Monroe County. 4. KLOR shall provide wastewater, treatment and sewage collection and disposal to the Property via onsite systems, which will be upgraded to 2010 standards as may be required by law if no community wide system is available by 2010. 5. When the Key Largo Wastewater Treatment District facilities become available KLOR agrees to connect to same. KLOR further agrees to require to the extent that it is able that all unit owners within KLOR connect to same and require such connection in any transfer documents to unit owners. E. Reservation or Dedication of Land There is no reservation or dedication of land for public purpose contemplated by this Agreement. i�� Page 6 of 16 January 31, 2006 F. Local Development Permits The following is a list of all development permits approved or needed to be approved for the development of the Property as specified and requested in this Agreement: 1. All required Federal, State, South Florida Water Management District, and Monroe County permits for stormwater when necessary, if required. 2. Federal, State and County permits, as required, for docking facilities. 3. Demolition or renovation permits as necessary for the elimination of structures which cannot be permitted according to the regulations pertaining to mobile home parks and Urban Residential Mobile Home Land Use District Regulations as of the effective date of this Agreement. 4. KLOR shall submit a complete site redevelopment plan application package to the County for the redevelopment of no less than 285 units of the Resort to the standards and conditions of this Agreement and the County's Land Development Regulations to the extent applicable and not inconsistent with this Agreement. This site redevelopment package, referred to hereinafter as "Site Redevelopment Plan", shall be submitted to the County within one - hundred twenty (120) days from the effective date of this Agreement and shall be noticed in accordance with Section 9.5-45 Monroe County Code (MCC) and reviewed and approved pursuant to the process for major conditional uses in Section 9.5-69(b) through (d.), MCC. The application fee for the Site Redevelopment Plan shall be the same as that for major conditional use. At a minimum, the Site Redevelopment Application Package shall contain: (1) a site plan depicting detailed wastewater collection system, stormwater management, landscaping, access and road improvements, fire suppression facilities, and utility relocations; and (2) a site plan for manufactured and single family -detached home lots depicting the construction envelope on each leased space for the siting of compliant manufactured and single family - detached homes and accessory structures, and including plans for adequately d sized wastewater collection facilities. 5. Building and related construction permits for land clearing, adequately sized wastewater collection facilities, stormwater facilities, utilities and road Page 7 of 16 130 January 31, 2006 improvements, as appropriate to implement the conditional use order and this Agreement. G. Finding of Consistency By entering into this Agreement, Monroe County finds that the development permitted or proposed herein is consistent with and furthers the County's Comprehensive Plan and Land Development Regulations. H. Breach, Amendment, Enforcement, and Termination Exclusive of any others except those imposed by law, the following additional conditions, terms, restrictions, or other requirements are also determined by the parties to be necessary for the execution and enforcement of this Agreement: 1. Breach of Agreement and Cure Provisions a. Upon KLOR's material breach of the terms and conditions of this Agreement, Monroe County shall serve written notice on and shall provide KLOR the opportunity, within ninety (90) days, to propose a method of fulfilling the Agreement's terms and conditions or curing the breach. Monroe County shall allow KLOR an opportunity to cure the breach or to negotiate an amendment to this Agreement within a reasonable time, not to exceed ninety (90) days after KLOR response or proposal, absent exigent circumstances. b. The following events, unless caused by fire, storms, floods, other acts of God, or events beyond the control of KLOR are to be considered a material breach of this Agreement: (1) the failure to comply with the provisions of this Agreement or the application for permits to effectuate the actions required and described in herein; (2) the failure to maintain conditions placed on permits or approvals contained in or issued as a direct result of this Agreement; (3) the failure to comply with applicable permitting requirements of Monroe County after notice and opportunity i within ninety (90) days to commence to comply with such permitting requirements or, if applicable, to commence compliance with such requirements and have completed within a reasonable time as mutually agreed by the parties if compliance requires more than sixty (60) days. Page 8 of 16 January 31, 2006 131 Y � Y I 2. Amendment, Termination, or Revocation The parties hereto shall at all times adhere to the terms and conditions of this Agreement. Amendment, termination, extension, or revocation of this Agreement shall be made in accordance with the notification and procedural requirements set forth herein. Amendments to this Agreement shall subject KLOR to the laws and policies in effect at the time of the amendment only if the conditions of Section 163.3233(2), Florida Statutes, are met. It is -further agreed that no modifications, extensions, amendments, or alterations of the terms or conditions contained herein shall be effective unless contained in a written document approved and executed by the parties to this Agreement. 3. Hearing Requirements a. Before amending, terminating, or revoking this Agreement, Monroe County shall conduct at least two (2) public hearings. The hearings shall be held pursuant to an application filed with Monroe County by the party seeking to amend, terminate or revoke this Agreement, along with the requisite filing fee. b. Notice of intent to amend, terminate, or revoke this Agreement shall be advertised at least seven (7) days before the public hearing in a newspaper of general circulation and readership in Monroe County. The day, time, and place of any further public hearing shall be announced at the first public hearing and the date thereof shall be advertised at least seven (7) days before such public hearing. The notices shall specify the location of the property subject to this Agreement, the development uses proposed on the property, the proposed population densities, and the proposed building intensities and height, and shall specify a place where a copy of the proposed amendment, termination or revocation, and supporting information can be obtained. 4. State and Federal Law If State or Federal laws enacted after the effective date of this Agreement preclude any parry's compliance with the terms of this Agreement, this Agreement shall be modified as is necessary to comply with the relevant State or Federal laws; however, this Agreement shall not be construed to waive or Page 9 of 16 3 January 31, 2006 supersede any contention under law that KLOR has acquired vested rights under prior law. 5. Enforcement a. If Monroe County, through its Growth Management Division, rinds that KLOR or a successor is in material breach of this Agreement, and after notice is given as provided herein to respond to or cure said breach, KLOR fails within a reasonable time to respond, cure, or secure and amendment resolving the breach, Monroe County may utilize appropriate code enforcement remedies to cure any breach or seek through the Circuit Court of Monroe County enforcement of the provisions of the Settlement Agreement approved by the Court on August 4, 2003. b. Monroe County, KLOR, their successors or assigns, or any aggrieved or any adversely affected person as defined in Section 163.3215(2), Florida Statutes, may file an action for injunctive relief in the Circuit Court of Monroe County to enforce the terms of this Agreement or to challenge compliance with the provisions of Sections 163.3243, Florida Statutes. c. Nothing contained herein shall limit any other powers, rights, or remedies that any party has, or may have in the future, to enforce the terms of this Agreement. III. Compliance with Other Laws The failure of this Agreement to address a particular permit, condition, term, or restriction shall not relieve KLOR of the necessity of complying with the laws governing said permitting requirements, conditions, terms or restrictions IV. Additional Provisions A. Permits KLOR, its lessees or cooperative members shall apply for all the building or demolition permits required to bring existing improvements and structures into compliance to replace existing manufactured homes or RVs with compliant manufactured or single family -detached homes. The compliance schedule to submit applications for building and demolition permits for compliance and replacement of existing non -compliant structures shall be identified by individual lot number in the Site Redevelopment Plan required by Page 10 of 16 January 31, 2006 section II F. 4, provided that: (1) all permit applications shall be applied for within three ( 3 ) years from the effective date of the Site Redevelopment Plan; (2) at a minimum, 75 lots shall be brought into full compliance with Chapter 6.0 and Chapter 9.5, Monroe County Code and this Development Agreement within one year from the effective date of the Site Redevelopment Plan and at least fifty (50) lots each year thereafter until all the structures and improvements on all lots are in full compliance; and, (3) all lots shall be in full compliance with Chapter 6.0 and Chapter 9.5, Monroe County Code and this Development Agreement by no later than six ( 6 ) years from the effective date of the Site Redevelopment Plan. However, the County must be presented with written certification on forms approved by the County, in advance, that the KLOR management, specifically its President and Board of Directors, has approved the individual permit application. All work authorized by said permits shall be completed in accordance with Chapter 6 and Chapter 9.5, Monroe County Code. Permits required for roads, fire suppression, stormwater, landscaping, utility relocations, and other community facilities or improvements shall be applied for by KLOR, its lessees and cooperative members, pursuant to the approved Site Redevelopment Plan within a period of one (1) year from the effective date of the Site Redevelopment Plan. In regard to the submittal of permit applications to bring lots into compliance, both parties recognize that the time requirements under the Florida Building Code for the processing of permit applications by the County's Building Department may not be strictly adhered to in order to: allow the County staff sufficient time to properly review and approve all these applications, given the three year submittal deadline for applications; and, to provide greater flexibility to KLOR, its lessees or successors in meeting the five-year compliance schedule. B. Vesting and Compliance Policies The following are the policies and standards for the vesting of certain improvements and compliance actions that govern the specific compliance actions required and which shall be followed in implementing the terms and conditions of this agreement: 1. Any improvements except as noted below for driveways other surface cover improvements, that have been made without a permit shall be removed, including below base flood ground mounted air conditioning condensers except where after - the -fact permits can be issued. 3Lf Page 11 of 16 January 31, 2006 2. All. unpermitted impervious surface improvements, such as concrete or asphalt driveways and slabs, may be retained except where they are required to be removed by this Agreement or the approved Site Redevelopment Plan. 3. As defined in the Land Development Regulations, all non -road ready park models, other recreational vehicles, or non -compliant manufactured homes in place prior to 1990 or that received a permit for the replacement by the County after that date shall be allowed to remain in place until such time as they are required in accordance with the Site Redevelopment Plan to be replaced by a compliant manufactured or single family -detached home or brought into compliance with the County's floodplain regulations. However, all unpermitted attachments, enclosures or other improvements shall be removed except where an after -the -fact permit can be issued. The County shall allow permits, on a case -by - case basis, for minor repair to trailers and park models resulting from the demolition of unpermitted attached structures. 4. The date on the RV's title document or KLOR's required insurance verification listed on Exhibit B — Structure Status and Compliance Actions at Key Largo Ocean Resorts and Verification of Structure Age/Insurance attached hereto and Vehicle Identification Number or Vehicle Tag shall be used to resolve any disagreement over the date of the placement of an RV. 5. All non -road ready park models, other recreational vehicles, or manufactured homes in place after 1989 and without a permit for placement by the County shall be removed or brought into compliance with the County's floodplain regulations in accordance with the Site Redevelopment Plan. After their removal they may be temporarily replaced on their individual lots by a road ready RV for a period of five (5) from the effective date of the Site Redevelopment Plan, or permanently replaced with a compliant manufactured home or single family -detached home at or above base flood elevation. 6. Lot owners delinquent on payment of the Monroe County license tax pursuant to Section 320.08 Florida Statutes, shall be required to pay in full any outstanding balance and delinquent fees to the Monroe County Office of Tax Collector prior to issuance of any permit under this Agreement. 13.5 Page 12 of 16 January 31, 2006 C. Impact Fees Each lot owner shall be required to pay impact fees prior to the issuance of a permit authorizing a compliant manufactured home or single family -detached home on their lot. This impact fee shall be $1,229.00 for manufactured homes and $1,534 for single family - detached homes. D. Special Development Standards 1. The Site Redevelopment Plan shall insure that the configuration of manufactured homes meets the separation requirement of NFPA 501A - Standard for Fire Safety Criteria for Manufactured Home Installations, Sites and Communities to the maximum extent practicable without the removal of units. 2. The Site Redevelopment Plan shall address thb Iife safety and fire protection issues raised in the September 19, 2003 letter from Assistant Fire Marshal Romero to Mr. Donald Craig AICP, which is attached herein to this Agreement as Exhibit C. 3. KLOR shall be entitled to a maximum of 284 units on the site or 285 units, upon providing documentation verifying existence of this unit, which is to be submitted with and approved as part of the Site Redevelopment Plan. Should the approved Site Redevelopment Plan result in less in this maximum limit recognized by the County, any units transferred all off -site shall be only for affordable housing. Within sixty (60) days of the effective date of the Site Redevelopment Plan, KLOR shall record in the public records a restrictive covenant on the property running in favor of the County that limits the number of residential units on the property to the number approved under the Site Redevelopment Plan. 4. Pursuant to paragraph B. above, road ready recreational vehicles may be temporarily placed on individual lots for a period of five (5) years from the effective date of the Site Redevelopment Plan after which only manufactured or modular homes shall be authorized to be placed on any of the lots. 5. The Board of County Commissioners hereby reserves the right to review and 4 amend the Site Redevelopment Plan consistent with this Agreement. KLOR may petition the Board of County Commissions to review the Site Redevelopment Plan approved by the Planning Commission. Page 13 of 16 January 31, 2006 E. Recording The County shall record this Agreement with the Clerk of the Circuit Court of Monroe County within fourteen (14) days following signature by all parties. Recording fees shall be paid by KLOR. F. Entire Agreement This Agreement incorporates and includes all prior negotiations, correspondence, conversations, agreements, or understandings applicable to the matters contained herein and the parties agree that there are no commitments, agreements, or understandings concerning the subject matter of this Agreement that are not contained in or incorporated into this document; accordingly, it is agreed that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. G. Severability 1f any part of this Agreement is contrary to, prohibited by, or deemed invalid under any applicable law or regulation, such provisions shall be inapplicable and deemed omitted to the extent so contrary, prohibited, or invalid; however, the remainder here shall not be invalidated thereby and shall be given full force and effect. H. Jurisdiction and Governing Law The parties hereto agree that any and all suits or actions at law shall be brought in Monroe County, Monroe County, Florida, and no other jurisdiction. This Agreement shall be construed and interpreted under the laws of the State of Florida. I. Conflicting Resolutions All resolutions or parts thereof in conflict with the provisions of this Agreement and its resolution are hereby repealed to the extent of such conflict. J. Successors and Assigns This Agreement shall be binding upon the parties hereto, their successors in interest, heirs, assigns, and personal representatives. K. Notices All notices, demands, requests, or replies provided for or permitted by this Agreement shall be in writing and may be delivered by any one of the following methods: (a) by personal delivery; (b) by deposit with the United States Postal Service as Certified or Registered mail, return receipt requested, postage prepaid, to the addresses stated below; Page 14 of 16 January 31, 2006 i or (c) by deposit with an overnight express delivery service. Notice shall be deemed effective upon receipt. For purposes of notice, demand, request, or replies: The address of Monroe County shall be: Mr. Thomas Willi County Administrator 1100 Simonton Street, Rm. 2-205 Key West, FL 33040 The address of Key Largo Ocean Resorts Co-op, Inc. shall be: Mr. Pedro Salva, President Key Largo Ocean Resorts Co-op, Inc. 94825 Overseas Highway Key Largo, FL 33037 L. Effective Date The effective date of this Agreement is 30 days after the duly signed and recorded Agreement is received by the Florida Department of Community Affairs pursuant to Chapter 380, Fla. Statutes. IN WITNESS WHEREOF, the parties hereto have set their hands and seals on the day and year below written. APPROVAL OF KEY LARGO OCEAN RESORTS CO-OP, INC. Signed, sealed, and delivered in the presence of: - Pedro Salva Wit ss: For: By: Print Namevmvwo/ Dated: Signa Key Lar an Reso is Co-op, Inc. -'a 20 The foregoing `.nstrument was acknowledged before me on this 42cx day of , L 2006, by ��� .J���ij� He/she is personally known to me / produce as identification and did not take an oath. Page 15 of 16 January 31, 2006 13S J 1� 1- Notar Public P anted name My commission expires: Mader Hemandez W Comm(ssion DD29 My commission number: °"'`' Expir"FeWuery23.2 APPROVAL OF MONROE BOARD OF COUNTY COMMISSIONERS On this 21 st day of .rune , 2006, Monroe County Board of County Commissioners approved this Agreement by Monroe County Board of County Commissioners Resolution No. 242-2006 t By: MAYOR CHA Page 16 of 16 MCCOY � 3� January 31, 2006 El 13 EXHIBIT A SURVEY OF KEY LARGO OCEAN RESORTS PROPERTY °�• gib; . l s ; !2 i . ) r ) �.i it�#tsl: ! [t�x?��� c�({}'T �� i�i 7x it, 911 1-11 film IiRt)1 }Y^ � 1 ,r ` f 2 � t N 7 {, � . � .t:�t.: - � r v .. �}• S iS - 3 �# Jr •. - �4 � of .w.. f•'t � Y. _• H i) f. �'`•r' `•.L; •' rr•" � f ,.�' ': ab3 a} '•r:� _:�' : ' ' i �s;'t / •'4: ..J i„ _ •. 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Box 372 Key West, FL 33041-0372 RE: Key Largo Ocean Resort Dear Mr. Craig: BOARD OF COUNTY COMMISSIONERc Mayor Dixie M. Spehar, District 1 Mayor Pro Tent Murray E Nelson, District 5 George Neugem, District 2 Charles "Sonny" McCoy, District 3 'D David P. Rice, District 4 As a result of a site visit made to Key Largo Ocean Resort on August 29, 2003 by myself and the Tavenner Fire Chief Benny Gonzalez, the following items shall be addressed to increase fire protection, and insure life safety. • All overhead lines, electric, cable and telephone shall beat least 15 feet high overall right-of-ways. • Boats shall not be parked in yards or in right-of-way. • All rights -of --way shall be repaired, maintained and approved by Fire Marshals Office for fire department access. • Electrical panel at the east corner shall be moved out of right-of-way. The width of the road shall be increased, and a paved surface shall be designed and constructed to support the heaviest fire apparatus. • All docks shall be required to provide fire protection as follows: 6-inch dry standpipe with fire department connection and two hose cabinets. Fire extinguishers in outdoor cabinets every 75 feet. • All emergency access shall meet NFPA 1, Chapter 3-5, Fire Lanes. • All LP gas tanks shall be installed according to NFPA 58. Page I of 2 • All residential trailers shall have their' respective street address numbers prominently displayed on the exterior of the trailer in a manner so as to be clearly visible from the street. Numbers shall be a minimum of six inches (6") in height. • A letter shall be obtained from FKAA showing feasibility for fire hydrants, followed by'a letter from independent contractor for installation of same. • Fire wells shall be installed in strategic locations according to the Tavernier Fire Chief and Fire Marshals Office. If you need any assistance or require any further information, please feel free to contact me at (305) 289-6010. Sincerely, ur "Wally" Romero Assistant Fire Marshal cc: Clark Martin, Monroe County Fire Rescue Chief Bill Surina, Monroe County Assistant Fire Marshal Joe Paskalik, Monroe County Building Official Owen Trepanier, The Craig Company Jeff Stuncard, Monroe County Senior Planner Benny Gonzalez, Tavernier Fire Chief Ed Nicole, FKAA Page 2 of 2 07/21/2003 16:12 3052953663 r' MONRO$ CQII _` Y OFFICIAI, RSCMms CLERK OF COURT P'IL11 #ILaB2-772 8R#9 0 8 FG# 1. 2 S =4 IN THE CIRCUIT COURT OF THE le JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA CIVIL DIVISION MONROE COUNTY, FLORIDA, Plaintiff, VS. PAGE 01/02 RCD JUl 1.5. 20913 e8:48AM DANNY L KOLHAGIR, CLERK Cass No.: CAP 88200 KEY LARGO OCEAN RESORTS CO-OP, INC., Defendant. BaWentAaraamnt The Plaintiff Board of County Commissioners of Monroe County, Florida (hereinafter raforred to as °the County° when referring to the governmentai entity and the "Bow when referring to the Board itself), and the Defendant Key Largo Ocean Resorts Coop, Inc. (hereinafter referred to "KWR', hereby enter into this agreement to settle the above-c aptloned lien foreclosure case, and In furtherance thereof state as follows: 1. The parties johly move this Honorable Court to take this matter off the Cour ra trial docket so that the parties may complete the ' development process of the Defendant's property as set forth in this agreement and its attachments. ' 2. The Court shall retain jurisdiction to enforce provisions of this agreement and shall have the authority, on its own motion or on motion of one of the parties, to return the case to the trial docket in the event that there is a material breach of the terms of this agreement. 3. KLOR wlll Submit its final site plan to the County Planning Department by March 28, 2003. 4. Upon submission of the complete development application acid a site plan, and its -review by County staff, the County will schedule a hearing on the deVelopment agreement before the Planning Commission at the earliest opportunity. 5. After recommendation by the Planning Commisslon, the County will schedule a hearing before the BOCC at -the earliest opportunity. 07/21/2003 16:12 3052953663 4 CLERK OF COURT FILE #13e2772 BX#1�099 FG#12'S4 S. If approved by the BOCC, the development agreement will be submitted to the Florida Department of Community Affairs (hereinafter "DCA') for approval and execution. 7. Upon DCA approvai, permits will be obtained and issued in accordance with the schedule and conditions In the executed development agreement and County Land Development Regulations. 8. All work will be completed within and in accordance with the schedule agreed upon In the executed development agreement. Q. The parties shall submit joint status reports to the Court by the first day of every quarter (January 1, April t, July 1, and September 1) until the project is completed. 10. At the completion of the work undertaken pursuant to the agreement, the County will dismiss the foreclosure action with prejudice. 11. Each party agrees to bear its own attorneys fhes and posts associated with this matter unless the Court declares they to be a material breach of this agreement and returns this matter to the trial docket. 12. The parties further agree to waive any claims that each may have asserted against the other as a result of this litigation. the underlying code enforcement proceeding, or the application of the land development regulations of the County to this property. KOLHAQE L" 0 Name of WARD OF COUNTY COMISSIONERS OF MONROE COUNTY ay: !s Spehar, ayor - IX Key Largo Ocean Resorts Co-op, Inc. P tl s ORM A' Y BY - T OXMIKE ME ..-. -2 MONROE COUNTY OFFICIAL RBCORDB PAGE 02/02 IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MONROE COUNTY MONROE COUNTY, FLORIDA Plaintiff, KEY LARGO OCEAN RESORTS CO-OP, INC., Defendant, CASE NO.96-260-CA-P RECE'VeD 0 not"ROE COUN f Y 4Tf�RyE t' DEFENDANT KEY LARGO OCEAN RESORTS CO-OP INC.'S NOTICE OF FILING OF AUGUST 25, 2010 STATUS REPORT Defendant KEY LARGO OCEAN RESORTS CO-OP, INC. (KLOR), by and through undersigned counsel, hereby files the attached August 25, 2010 Status Report. Respectfully submitted, KENT HARRISON ROBBINS Attorney for Defendant 1224 Washington Avenue Miami Beach, Florida 33139 Telephone: (305) 532-0500 Facsimile: (305) 531-0150 Email: khrobbins@kentharrisonrobbin.s.com Florida Bar No. 275484 CASE NO. 09-23 669-CIV-MORENO/TORRES CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by facsimile and electronic mail this 18`h day of August, 2010 upon: Robert B. Shiilinger, Jr., Esq. Assistant County Attorney County Attorney's Office P. 0. Box 1026 Key West, Florida 33041 Telephone: (305) 292-3470 Facsimile: (305) 292-3516 Email: shillinger-bob@monroecounty-fl.gov KENT HARRISON ROBBINS l IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MONROE COUNTY MONROE COUNTY, FLORIDA Plaintiff, V. KEY LARGO OCEAN RESORTS CO-OP, INC., Defendant, J CASE NO.96-260-CA-P REC1 tVpL) DEFENDANT KEY LARGO OCEAN RESORTS CO-OP INC.'S AUGUST 25, 2010 STATUS REPORT 2010 Uk T 11 :ITTORNE Defendant KEY LARGO OCEAN RESORTS CO-OP, INC. (KLOR), by and through undersigned counsel, hereby gives notice of its status report in compliance with the June 23, 2010 Order Modifying February 25, 2010 Temporary Injunction, and states: 1. On August 22, 2009, the Court entered an order approving the 2006 Development Agreement between KLOR and Monroe County to remedy code violations on the site. This Development Agreement had led to the rezoning and replanning of the property. Substantial infrastructure re -development is required by this Development Agreement. 2. On June 23, 2010, this Court directed that a. all residents vacate the premised by July 31, 2010 b. all illegal structures on the premises of KLOR be demolished by December 31, 2010 c. KLOR to apply for additional relief should any of its shareholders fail to timely provide consent to demolish illegal structures, trailers, and slabs. ' The management office is permitted to remain open and entry onto the premises is limited, by court order, for the purposes of managing the premises and for construction including demolition, in compliance with the Development Agreement. CASE NO. 09-23669-CIV-MORENO/TORRES 3. As of the August 19, 2010, 247 of 284 Shareholders had consented to demolition. A notice, copy attached hereto as Exhibit A, is being sent to the remaining 37 persons who have not submitted a consent giving them one final opportunity to submit a consent before KLOR pursues legal remedies. 4. As of this time, all shareholders who intend to remove their trailers with their selected contractor are being allowed to remove their trailers. Beginning September 15, 2010, only the contractor hired by KLOR will be allowed on site to complete the demolition. 5. Another status report will be provided to this Court in approximately two weeks to set up a scheduling conference to discuss the procedures that KLOR and the County will take with respect to those non -consenting shareholders, including, but not limited to, supplemental pleadings to enforce the Development Agreement. Dated August 25, 2010. Respectfully submitted, KENT HARRISON ROBBINS Attorney for Defendant 1224 Washington Avenue Miami Beach, Florida 33139 Telephone: (305) 532-0500 Facsimile: (305) 531-0150 Email: khrobbins@kentharrisonrobbins.com Florida Bar No. 275484 P CASE NO.09-23669-CIV-MORENO/TORRES CERTIFICATE OF SERVICE I HEREBY CERTIFY that?e and correct copy of the foregoing has been served by facsimile and electronic mail this day of August, 2010 upon: Robert B. Shillinger, Jr., Esq. Assistant County Attorney County Attorney's Office P. 0. Box 1026 Key West, Florida 33041 Telephone: (305) 292-3470 Facsimile: (305) 292-3516 Email: shillinger-bob@monroecounty-fl.gov KENT HARRISON R BBINS Jun 27 08 12:48p Jun 27 08 10:20a ureenmanwnanx aava, !7J-OJGwI Doca 1711349 Bka 2379 Poa 2184 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS MARIA BARROSO, ) Appellant, ) } vs. } } Case No. 07-5390 MONROE COUNTY PLhNNING ) COMMISSION and KEY LARGO OCEAN } RESORT CO-OP, INC., ) } Appellees. ) } FINAL ORDER OF DISMISSAL Appellant Muria Barroso seeks review of Monroe County Planning Commission Resolution P35--07, approved by the Planning Commission on August 24, 2007. The Division of Administrative Hearings, by contract, and pursuant to Article XIV, Section 9.5- 535, Monroe County Code, has jurisdiction to consider the appeal and to issue a final order. Leave to intervene as an Appellant was granted to Key Largo Ocean Resort Co-op, Inc. (KLOR), a cooperative under Chapter 719, Florida Statutes (2007). Appellant KLOR was the applicant for the site plan approval, which is the subject of this appeal. Resolution P35-0.1 Resolution P35-07 approved the application of KLOR for an. amendment to a major conditional use permit to demolish all existing structures and redevelop all infrastructure, amenities, Jun 27 08 12: 48)o P. $ .sun c, ua lu.eua tsrevnmanwnanz auv.a, ,'7J �pJGJ p._a. Doeq 1711349 Blot 2379 Pg# 2185 land redevelop all existing RVs, park models, and mobile home residences on property located at 94825 Overseas Highway, Key Largo, with 285 single-family permanent dwelling units, accessory uses, gatehouse, office building, community center, and grill/pub area, subject to numerous conditions stated in the resolution. For simplicity, the subject of Resolution P35-07 will be referred hereafter in the same way it has been referred to by the parties;, as a site plan approval. Issues Raised on Appeal On September 20, 2007, Appellant filed a timely "application for appeal," stating the following basis for the appeal: Planning Commission Resolution No. P35-07 is in direct contravention of and violates the Monroe County Code, the Monroe County Comprehensive Plan, the principles for guiding development as provided in Chapter 380, Florida Statutes, and the terms and conditions of development Agreement approved by the Monroe County, Florida Board of County -Commissioners Resolution 242-2006, dated June 21, 2006. Moreover, a representative of Key Largo Ocean Resort misrepzesented to the Commission that it had obtained the requisite statutory consent required by Section 719.1055(1), Florida Statutes, to the proposed site plan. (Appellant) reserves the right to amend and supplement_ this application for appeal with additional information and grounds. On January 28, 2008, Appellant moved to abate the appeal to allow the circuit court, in a pending case involving these same Pa Jun 27 D6 12:48p DocM 1721349 Bkq 2379 P9# 2186 p.4 -~�Jun �27 os zozaaa 6reenmanl.Manz �~ (305)743-6523w. p.3 , parties, to rule on whether KLOR's application for approval of the site plan was ultra wires, null, and void. Appellant's motion was granted and the appeal remained abated until Aprfl 29, 2008, when the Administrative Law Judge set a briefing schedule because the expected ruling of the circuit court had been put off. Appellant filed her Initial Brief on May 19, 2007. Two issues were raised by Appellant: (1) whether the Planning Commission failed. to comply with the essential require-ments of law because it was based on a material misrepresentation made by KLOR's attorney; and (2) whether Appellant has standing. No Issue was raised regarding whether Resolution P35-07 violated any of the applicable provisions of the Monroe County Code_ Before the deadline for filing answer briefs, the Planning Commission riled a motion to dismiss the appeal, arguing that Appellant failed to raise reviewable issues in its Initial Brief. Appellant filed a response stating that her claim that Resolution P35-07 was based on a material misrepresentation is a proper issue for review because it is a claim that the Planning Commission failed to comply with the essential requirements of law. The Alleged Misrepresentation At the public hearing before the Planning Commission held on July 25, 2007, one of the issues raised by persons opposed to 3 Jun 27 08 12:48f) p.5 emu„ c • uo s u. cud ur•y arum dfr0.i'Id R7i a auD l i-to-o�e� (+. -r DOCU 1711349 Bkq 2379 Pgp 2187 the proposed site plan was that it had not been properly approved by the cooperative unit owners within KLOR_ Their claim of invalid-ty was based on Section 719.1055, Florida Statutes (2007), which prohibits an amendment to the cooperative documents which naterially changes the configuration or size of any cooperative unit, or makes other material changes identified in the statute, unless all unit owners approve the amendment. Appellant and some other unit owners claim that the site plan, approved by Resolution P35-07 makes the kinds of material changes which all unit owners must approve, but such approval was not obtained. The other parties did not concede that approval of the site plan requires the agreement of 100 percent of the cooperative unit owners. Whether 100 percent approval is required is one of the issues to be resolved in the case that is pending in the circuit court. In his presentation to the Planning Commission, the attorney for KLOR made the following statement: The law requires when a co-op changes in Material fashion the ownership interest of the property that it be put to a vote of the shareholders. I'm always the one that gets to keep the original ballots. I've been holding original ballots for elections now for a couple of years. These are the original ballots of the site plan that was sent out in March of '02 and '03. I will tell you there is a difference_ At that time, we put a tennis court where the 9 o� Jun 27 08 12:43P ., un c r cvti I U. d 1 43 ureenman&nanz ( 305) 743-GSea Doc# 1711349 Bk4 2379 Pg# 2188 waste plant was because we thought the Key Largo Waste Plant would be in effect. We've had to change that. Other than that, the lots and sizes and everything were the same. There are 285 members, shareholders, that have to vote. 51 voted against it. That's 85 percent approval. Appellant claims this is a misrepresentation because the cooperative unit owners did not vote on the site plan approved by Resolution P35-07. In the discussion quoted above, however, KLOR's counsel did not say that the cooperative unit owners voted on the site plan that was before the Planning Commission. He made clear that the vote he was referring to was for an earlier site plan. Appellant further claims that the alleged misrepresentation was material because the Planning Commission's decision was based on this misrepresentation. Appellant's evidence for this second claim is the following statement made at the public hearing by the ct_airman of the Planning Commission: We understand that 85 percent of the people in this park have agreed to do this and that's the way our country operates, that's the way we operate, that's majority rule, and I'm afraid that's going to be hard for some of you, but that's the way life is. Appellant asserts that this statement shows that the commissioners believed that the cooperative unit owners had voted on the proposed site plan. However, it is reasonable to infer that the Qhairman's statement merely reflects what he was 5 P.6 P.5 Jun 27 08 12:49p Jun 27 08 10:21a Greenman&Manz (305)743-6523 DocN 1711349 Bkp 2379 Pgq 2189 told by KLOR's attorney, that 85 percent of the unit owners had agreed to an earlier site plan that was similar. Furthermore, as explained below, the chairman's comment is not material. Matters Outside the Record Appended to Appellant's Initial Brief are three docurccents that are not part of the record created by the Planning Commission. Appellant refers to these documents, in part, as proof of factual issues presented in its Xnitial Brief. The appended documents are (1) a motion filed in the circuit court, (2) a transcript of the circuit court hearing on the motion, and (3) the court's crder on the motion. These documents are not part of the record on review and their inclusion with the Initial Brief was improper. No consideration was given to the documents by the Administrative Law Judge. Legal Discussion The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties pursuant to Article xlv, Section 9.5-535, of the Monroe county Code. Under Section 9.5-540(b), the scope of the hearing officer's review is stated as follows: The hearing officer's order may reject or modify any conclusion of law or interpretation of the Monroe County land development regulations or comprehensive plan in the planning commission's order, whether stated in the order or necessarily implicit in the planning commission's 6 Jun 27 08 12:49p pg .a v.r ci uo AV.GA4 ur��nmanarnanz iaVS) J4�-bSGd p.'/ Doc# 1711349 Bk# 2379 P9# 2190 determination, but he may not reject or modify any findings of fact unless he first determines from a review of the complete record, and states with particularity in his order, -that the findinga of fact were not based upon competent substantial evidence or that the proceeding before the planning commission on which the findings were based did not comply with the essential requirements of law. A hearing officer (administrative law judge) acting in his or her appellate review capacity is without authority to reweigh conflicting testimony pxesented to the Planning Commission. See Haines City CommUnity Development V. Beggs, 658 So. 2d 523, 530 (Fla. 1995). The question on appeal is not whether the record contains competent substantial evidence supporting the view of the appellants rather:, the question is whether competent substantial evidence supports the findings made by the Planning Commission. Collier Medical center, Inc. V. Department of Health and Rehabilitative Services, 462 So. 2d 83, 85 (Fla. lst DCA 1985). The question of whether the Planning Commission departed from the essential requirements of law is the same as whether the Planning Commission failed to apply the correct law. Haines City Community Development, 658 So. 2d at.530. The correct law to be applied in this particular case, which was not discussed by Appellant, are the Monroe County Code criteria applicable to the amendment of a major conditional use permit. .1 r Jun 27 08 12:4Sp g I 1 W- r:io VI -CI 1111p110ts 1O11G I.ILJJ !TJ"OJLJ PN.O Doc# 1711349 Bka 2379 PgN 2191 Appellant does not identify any criterion that the Planning Commission failed to properly apply. Appellant does not allege nor does the record show that there is any provision of the Monroe County Code that requires, as a condition for the amendment of a major conditional use permit, that an applicant demonstrate that it has properly obtained the approval of its unit owners, association members, board of directors, or any other entity. Even assuming that Appellant is correct that the statement of KLOR's attorney was a misrepresentation, it was not a material misrepresentation because it did not involve a criterion that 9Cverned the Planning Commission's decision. There is no finding of fact in the Planning Commission's decision that Appellant claims is unsupported by competent substantial evidence. There is no interpretation of the Monroe County Code or other legal conclusion in the Planning Commission's decision that Appellant claims to be in error. DECISION Based on the foregoing, the appeal of Maria Barroso is DISMISSED. 8 Jun 27 08 12:50p p.10 Jun e't un 1 u: z2a ureenman8.nanz UfUb j 7 43-Ub2U p. 5 Doc# 1711349 Bk# 2379 P9# 2192 DONE AND ORDERED this 25th day of June, 2008, in Tallahassee, Leon County, Florida. 1�'K&d4 GRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The Desoto Building 1.230 Apalachee Parkway Tallahassee, Florida 32399-3060 (650) 4BB-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 2008. COPIES FURNISHED: Robert B. Shillinger, Jr-., Esquire Monroe County Attorney Office Post Office Box --026 Key West, Florida 33041-1026 John A. Jabro, Esquire 90311 Overseas Highway, Suite B Tavernier, Florida 33070 Franklin D. Greenman, Esquire Greenman, Manz & Ables Gulfside Village, Suite 40 5800 Overseas Highway Marathon, Florida 33050 Andrew M. Tobin, Esquire Post Office Box 620 Tavernier, Florida .33070-0620 9 Dl 1711349 Sku 2379 P90 2194 fill ,]gg],}} I{ ! s!y .a., /• lid ! .". 4�$ it i `%v 1'l�r`r��,_ /'jt: ,�•[l�U (4 , , �'•�.« j�. ^I,� 4 we j � ! i. I .,,..t I � "iP . ; /'I •/,� 'p 1. , ' 4 ` ! / - % i' p� I �� I. t: IP � � 1 ��J III I ,I ' .�'•�l. 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I . q• q : s b "-� �' S ..�',,;� Nd9''I I I 9 I i �1• I : II YII (i' _:{� II 11 FI II 1,LIya i I' I6 1, �l _ r 7. t '� I'i i'- " � f � �..�I 1�-$�.'e�.l I I yii-'Sf �•is.'I(.�I,F,1'Y.,'y 1'+ Ij'_ y I'•,PI-i�• � I! �a � j,-�_�-1 / 11• ' i .II i•� 71 - II 'i Y'•'P IIt III I1 11 i A 1 I 11A '• Id E- GB [: I, I (• ''p +a �• ! �- l i 3,• I ;II ,. �I � 1-�-�� ��I� It:'• f �`�\ t ,+aL ry I Ii i#'• I TIII �";-vn I11. t. sa II L_IL I.wi - 1 ' - J u - _ i �, �g� 1 �'.�•"• � i>3 Yw inCa•9WYi 1we�rn � __ 'AGE �% QA['$ ^.Ul CA A_ SUB. !; d - -C [as i� MONROE COUNTY OFFICIAL RECORDS I �am�rr urc� ,�a��r L= t y ® $ S ;,: i :LA \� V �a.t1�' :tw�O.Y� l 'w. q�4.. Municode Page 1 of 6 Sec. 110-63. - Purpose. Conditional uses are those uses that are generally compatible with the other land uses permitted in a land use district, but which require individual review of their location, design and configuration and the imposition of conditions in order to ensure the appropriateness of the use at a particular location. (Code 1979, § 9.5-61; Ord. No. 33-1986, § 5-301) I Sec. 110-64. -Authority. The director of planning and the planning commission may, in accordance with the procedures, standards and limitations of this article and subject to such rights of appeal as are provided, approve applications for conditional use permits. (Code 1979, § 9.5-62; Ord. No. 33-1986, § 5-302) Sec. 110-67. -Standards applicable to all conditional uses. When considering applications for a conditional use permit, the director of planning and the planning commission shall consider the extent to which: (1) The conditional use is consistent with the purposes, goals, objectives and standards of the plan and this chapter; (2) The conditional use is consistent with the community character of the immediate vicinity of the parcel proposed for development; (3) The design of the proposed development minimizes adverse effects, including visual impacts, or the proposed use on adjacent properties; (4) The proposed use will have an adverse effect on the value of surrounding properties; (5) The adequacy of public facilities and services, including, but not limited to, roadways, park facilities, police and fire protection, hospital and Medicare services, disaster preparedness program, drainage systems, refuse disposal, water and sewers, judged according to standards from and specifically modified by the public facilities capital improvements adopted in the annual report required by this chapter; (6) The applicant for conditional use approval has the financial and technical capacity to complete the development as proposed and has made adequate legal provision to guarantee the provision and development of any open space and other improvements associated with the proposed development; (7) The development will adversely affect a known archaeological, historical or cultural resource; (8) Public access to public beaches and other waterfront areas is preserved as a part of the proposed development; and (9) The proposed use complies with all additional standards imposed on it by the particular provision of this chapter authorizing such use and by all other applicable requirements of this Code. (Code 1979, § 9.5-65; Ord. No. 33-1986, § 5-305; Ord. No. 40-1987, § 32; Ord. No. 19-1989, § 1(PD40)) Sec. 110-70. -Major conditional uses. (a) Applications for major conditional uses. An application for a major conditional use permit shall be submitted to the planning director in a form provided by the planning department. (1) If approval of a plat is required for the proposed development, an application for plat approval shall be submitted in conjunction with the application for a conditional use permit. However, a major conditional use shall not become effective until the plat has been approved by the board of county commissioners. (2) http ://Iibrary.municode. com/print. aspx?clientlD=14298 &HTMRequest=http%3 a%2f%2 fli... 11 /2/2010 Municode Page 2 of 6 As a part of the application for major conditional use, an applicant shall be required to submit the following, except for those inappropriate to the proposed development due to the limited size or scale of the development as determined by the planning director: a. An environmental designation survey consisting of: 1. A plan drawn to a scale of one inch equals 20 feet or less, except where impractical and the planning director authorizes a smaller scale, and showing the following: (1) The location of property; (ii) The date, approximate north point and graphic scale; (ill) The acreage within the property; (iv) The boundary lines of the property and their bearings and distances; (v) The topography and typical ground cover; (vi) The general surface characteristics, water areas and drainage patterns; (vii) The contours at an interval of not greater than one foot or at lesser intervals if deemed necessary for review purposes; (viii) The 100-year flood -prone areas by flood zone; (ix) The presently developed and/or already altered areas; and (x) The location of mean high-water line; 2. A natural vegetation map and/or a map of unique environmental features such as: (i) Climax tropical hardwood hammocks; (11) Endangered species habitats; and (Ili) Major wildlife intensive use areas; 3. Aerial photographs of the property and surrounding area; 4. A review of historical and archeological sites by the Florida Division of Archives, History and Records Management; 5. A review of unique environmental features such as: (i) Climax tropical hardwood hammocks; (11) Endangered species habitats; and (ill) Major wildlife intensive use areas; 6. Actual acreage of specific vegetation species or other environmental characteristics; 7. General information relating to the property in regard to the potential impact which development of the site could have on the area's natural environment and ecology; 8. Environmental resources: (1) If shoreline zones were identified, describe in detail any proposed site alterations in the areas, including vegetation removal, dredging, canals or channels; identify measures which have been taken to protect the natural, biological functions of vegetation within this area such as shoreline stabilization, wildlife and marine habitat, marine productivity and water quality maintenance; (ii) If tropical hammock communities or other protected vegetative communities were identified, describe proposed site alteration in those areas and indicate measures which were taken to protect intact areas prior to, during and after construction; (iii) Describe plans for vegetation and landscaping of cleared sites including a completion schedule for such work; 9. Environmental resources -wildlife. Describe the wildlife species that nest, feed or reside on or adjacent to the proposed site. Specifically identify those species considered to be threatened or endangered. Indicate measures that will be taken to protect wildlife and their habitats; and 10. Environmental resources -water quality: (1) Identify any wastewater disposal areas, including stormwater runoff, septic tank drain -fields, impervious surfaces and construction -related runoff; describe anticipated volume and characteristics. Indicate measures taken to minimize the adverse impacts of these potential pollution sources upon the quality of the receiving waters prior to, during, and after construction; identify the near shore water quality; and identify how this development will not adversely impact the near shore water quality; (11) Indicate the degree to which any natural drainage patterns have been incorporated into the drainage system of the project; b. A community impact statement, including: 1. General description of proposed development: (1) Provide a general written description of the proposed development; include in this description the proposed phases of development or operation and facility use, target dates for each of these, and date of completion; in addition, indicate the site http://library.municode.comlprint.aspx?clientID=14298&HTNMequest=http%3 a%2f%2fli... 11 /2/2010 Municode Page 3 of 6 size, developing staging and appropriate descriptive measures such as quantity and type of residential units, commercial floor area, tourist accommodation units, seating and parking capacities; for residential development, indicate the anticipated unit -per -acre density of the completed project; (ii) Identify aspects of the project design, such as a clustering, which were incorporated to reduce public facilities costs and improve the scenic quality of the development; describe building and siting specifications which were used to reduce hurricane and fire damage potential to comply with federal flood insurance regulations and the comprehensive land use plan; . Impact assessment on public facilities and water supply: (i) Identify projected daily potable water demands at the end of each development phase and specify any consumption rates that have been assumed for the projection; (ii) Provide proof of coordination with the Florida Keys Aqueduct Authority; assess the present and projected capacity of the water supply system and the ability of such system to provide adequate water for the proposed development; and (iii) Describe measures to ensure that water pressure and flow will be adequate for fire protection for the type of construction proposed; 3. Public facilities —Wastewater management: (i) Provide proof of coordination with the Florida Department of Health and Rehabilitative Services; (ii) Provide projection of the average flows of wastewater generated by the development at the end of each development phase; describe proposed treatment system, method and degree of treatment, quality of effluent, and location of effluent and sludge disposal areas; identify method and responsibilities for operation and maintenance of facilities; (iii) If public facilities are to be used, provide proof of coordination with the county waste collection and disposal district; assess the present and projected capacity of the treatment and transmission facilities and the ability of such facilities to provide adequate service to the proposed development; and (iv) If applicable, provide a description of the volume and characteristics of any industrial or other effluents; 4.. Public facilities —Solid waste: (1) Identify projected average daily volumes of solid waste generated by the development at the end of each phase; indicate proposed methods of treatment and disposal; (ii) Provide proof of coordination with county municipal services district; assess the present and projected capacity of the solid waste treatment and disposal system and the ability of such facilities to provide adequate services to the proposed development; and (iii) Comply with the requirements of section 114-200 concerning any applicable traffic study; 5. Public facilities —Transportation: (1) Provide a projection of the expected vehicle trip generation at the completion of each development phase; describe in terms of external trip generation and average daily and peak hour traffic; (ii) If the project site is adjacent to U.S. 1, describe the measures, such as setbacks and access limitations, which have been incorporated into the project design to reduce impacts upon U.S. 1; 6. Housing: (1) If the project includes residential development, provide breakdown of the proposed residential units by price range or rental range and type of unit such as single- family, duplex, townhouse, etc.; (ii) If lots are to be sold without constructed dwelling units, indicate the number and percentage of such lots and the extent of improvements to be made prior to sale; (iii) Assess the potential of the proposed development to meet local or regional housing needs; in particular, indicate any measures taken to provide low- and moderate - income housing; 7. Special considerations: (1) Describe the relationship of the proposed development to the comprehensive land use plan objectives and policies; also indicate relationships between existing or proposed public facilities plans; identify any conflicts; (ii) http://library.municode.com/print. aspx?clientlD=14298&HTNMequest=http%3a%2f%2fli... 11 /2/2010 Municode Page 4 of 6 Indicate any relationships of the project to special land use and development district such as airport noise and hazard zones, solid or liquid waste treatment or disposal areas; (III) If applicable, assess the impact of the proposed development upon other adjacent or nearby municipalities or counties; 8. The data and information provided in a community impact statement shall be coordinated with data and other information and/or permits required by local, regional, state or federal regulatory or reviewing agencies as appropriate to the major conditional use proposed. (b) Review by the development review committee. An application for a major conditional use permit shall be reviewed by the development review committee. Within 15 working days after the submission of a complete application for a major conditional use permit, the development review committee shall forward a report and recommendation on the application for a major conditional use permit to the planning commission. (c) Public hearing on an application for a major conditional use permit. The planning commission shall hold a public hearing on the application for a major conditional use permit and shall within 45 working days of the submission of a complete application for a major conditional use permit to the planning director issue a development order granting, granting with conditions or denying the application for a major conditional use permit. (d) Notice of grant of a major conditional use permit. The planning director shall give notice of any development order granting a major conditional use by sending a written notice to all owners of real property located within 300 feet of the property that is the subject of the major conditional use permit, and notice of the intent to issue the major conditional approval shall be published in newspapers of local circulation in the county by advertisement other than in the legal notice section with the cost to be borne by the applicant. Notice by the planning director shall be by regular mail within 15 days of the granting of the major conditional use. (e) Appeal of a conditional use approved by the planning commission. The applicant, an adjacent property owner, or any aggrieved or adversely affected person, as defined by F.S. § 163.3215(2), or any person who presented testimony or evidence at the public hearing conducted pursuant to subsection (c) of this section may request an appeal of the planning commission's major conditional use decision under chapter 102, article VI, division 2 by filing the notice required by that article within 30 days after the publication of notice or sending of the written notice by the county, whichever is later. (Code 1979, § 9.5-69; Ord. No. 33-1986, § 5-309; Ord. No. 40-1987, § 35; Ord. No. 19-1989, § 1(PD43), (PD43A); Ord. No. 19-1993, § 3; Ord. No. 028-2008, § 2; Ord. No. 005-2010, § 6) Sec. 110-73. -Development under an approved conditional use permit. (a) Effect of issuance of a conditional use approval. Approval for a conditional use shall be deemed to authorize only the particular use for which it is issued. A conditional use approval shall not be transferred to a successive owner without notification to the planning director within 15 days of the transfer. (1) Unless otherwise specified in a major conditional use approval, all required building permits and certificates of occupancy shall be procured within three years of the date on which the major conditional use approval is recorded and filed in the official records of Monroe County, or the major conditional use approval shall become null and void with no further action required by the county. Approval time frames do not change with successive owners. Extensions of time to a major conditional use approval may be granted only by the planning commission for periods not to exceed two years. There may be no more than two extensions. Applications for extensions shall be made prior to the expiration dates. Extensions to expired major conditional use approvals shall be accomplished only by re -application for the major conditional uses. When a hearing officer has ordered a conditional use approval initially denied by the planning commission, the planning commission shall nonetheless have the authority to grant or deny a time extension under this section. If the planning commission denies a time extension, the holder of the conditional use may request an appeal of that decision under chapter 102, article VI, division 2 by filing the notice required by that article within 30 days of the written denial of the planning commission. (2) Unless otherwise specified in a minor conditional use approval, all required building permits and certificates of occupancy shall be procured within three years of the date on which the minor conditional use approval is recorded and filed in the official records of Monroe County, or the minor conditional use approval shall become null and void with no further action required by the county. Approval time frames do not change with successive owners. Extensions of time to a minor conditional use approval may be granted only by the planning director for periods not to exceed one year. Applications for extensions shall be made prior to the expiration dates. Extensions to expired minor conditional use approvals shall be accomplished only by re -application for the minor conditional uses. When a hearing officer has ordered a conditional use approval initially denied by the planning director, the planning director shall nonetheless have the authority to grant or deny a time extension under this section. If the planning director denies a time extension, the holder of the conditional use may request an appeal of that http://library.municode.com/print.aspx?clientID=14298&HTNMequest=http%3a%2PIo2fli... 11 /2/2010 Municode Page 5 of 6 decision under chapter 102, article VI, division 2 by filing the notice required by that article within 30 days of the written denial of the planning director. (3) Development of the use shall not be carried out until the applicant has secured all other permits and approvals required by this chapter, this Code, or regional, state and federal agencies and until the approved conditional use is recorded in accordance with section 110-72. (b) After a conditional use has been approved, adjustments may be approved for major or minor deviations Adjustments to approved conditional use approvals and inspection during development under a conditional use approval. (1) Authorized. as set forth in subsections (b)(3) and (b)(4) of this section. (2) Inspections by department of planning. Following issuance of a conditional use approval, planning director shall review on a quarterly basis until the completion of the development all permits issued and construction undertaken, shall compare actual development and the approved plans and permits for development and the approved development schedule, if any, and shall report his findings in writing to the planning commission. (3) Minor deviations. The planning director may approve a minor deviation from the final development plan and schedule. Minor deviations must be authorized in writing and are subject to administrative appeal to the planning commission. Minor deviations that may be authorized are those that appear necessary in light of technical and engineering considerations brought to light by the applicant or the planning director and shall be limited to the following: a. Alteration of the location of any road or walkway by not more than five feet; b. Reduction of the total amount of open space by not more than five percent or reduction of the yard area or open space associated with any single structure by not more than five percent, provided that such reduction does not permit the required open space to be less than that required by section 130-157; and C. Alteration of the location, type or quality of required landscaping elements of the conditional use permit. (4) Major deviations. If the holder of an approved conditional use wishes to make an adjustment to the approval that is not a minor deviation, approval of the planning commission in accordance with the provisions of subsection (b)(5) of this section must be obtained. If the planning director finds that the development is not proceeding in substantial accordance with the approved plans or schedule or that it fails in any other respect to comply with the conditional use approval issued or any provision contained in this chapter, that director shall immediately notify the planning director and the planning commission and may, if necessary for the protection of the public health, safety or welfare, notify the building official to issue a temporary order stopping any and all work on the development until such time as any noncompliance is cured. No action may be taken by the planning commission that effectively amends the conditional use approval except by way of the procedures set out in section 110-70. (5) Action by the planning commission. Within 30 working days following notification by the planning director that work is not proceeding in substantial accordance with the approved plans or schedule or in some other respect is not in compliance with the conditional use approval, the commission shall: a. Determine that action be taken to bring development into substantial compliance; b. Determine that the conditional use approval be revoked; or C. Authorize adjustments to the approved conditional use approval when such adjustments appear necessary in light of technical or engineering considerations first discovered during actual development and not reasonably anticipated during the initial approval process. Such adjustments shall be consistent with the intent and purpose of the conditional use approval as permitted, and shall be the minimum necessary to overcome the particular difficulty. No adjustment shall be inconsistent with the requirements of this chapter. Prior to considering action on such adjustments, the planning commission shall make inquiry of any person having information that may relate to the basis for consideration of an adjustment, but shall act as promptly and as expeditiously as possible. If the planning commission determines that an adjustment is necessary, it may, without public hearing, approve the following adjustments, provided that such adjustments do not have the effect of reducing the open space required under the provisions of section 130-157: 1. Alteration of the bulk regulations for any one structure by not more than five percent; 2. Alteration of the location of any one structure or group of structures by not more than ten feet; and 3. Alterations of such other requirements or conditions as were imposed in the approval of the conditional use or in approval of the final development plan by not more than five percent or, in the case of location, a variation of not more than ten feet from the location approved in the final plan, so long as in all cases such adjustments are in accord with the parameters established in the conditional use approval. d. In the event the building official has issued a temporary order stopping work as provided for herein, the planning commission shall, within 30 working days from the date of the issuance of the temporary order: 1. Proceed to revoke the conditional use approval; or http://library.municode. con/print. aspx?clientID=14298&HTNMequest=http%3 a%2 f%2fli... 11 /2/2010 Municode Page 6 of 6 2. Overrule the action of the building official, in which case the temporary order shall immediately become null and void. (6) Appeal before hearing officer. The holder of a conditional use approval aggrieved by the decision of the planning commission made pursuant to subsection (b)(5) of this section may request an appeal before a hearing officer under chapter 102, article VI, division 2 by filing the notice required by that article within 30 days of the date of the written decision of the planning commission. (c) Other adjustments. Any other adjustments or changes not specified in subsection (b) of this section shall be granted only in accordance with procedures for original approval of a conditional use, as set forth in section 110-63 et seq. (d) Inspections after development. Following completion of the development of a conditional use, the planning (1) Inspections by planning department. department shall review the development for compliance with the use as approved. If it is determined that the conditional use has been developed in accordance with the approval, then a certificate of occupancy shall be issued in accordance with section 6-145. If the planning director finds that the development, as completed, fails in any respect to comply with the use as approved, he shall immediately notify the building official, the planning commission, the board of county commissioners, and the applicant of such fact. The building official shall not issue a certificate of occupancy pursuant to section 6-145 until the planning commission has acted on the planning director's notification of noncompliance. (2) Action by planning commission. Within 30 working days following notification by the planning director, the commission shall: a. Recommend that the finding of the planning director be overruled; b. Recommend to the applicant modifications in the development to bring it into accord with the terms and provisions of the final plan approval and the conditional use permit; or C. Revoke the conditional use permit, as well as all prior approvals and related or resulting permits. (3) Appeal before hearing officer. The holder of a conditional use approval aggrieved by the decision of the planning commission pursuant to subsection (b)(5) of this section may request an appeal before a hearing officer under chapter 102, article VI, division 2 by filing the notice required by that article within 30 days of the date of the written decision of the planning commission. (Code 1979, § 9.5-72; Ord. No. 33-1986, § 5-312; Ord. No. 40-1987, § 37A; Ord. No. 19-1989, § 1(PD49), (PD50); Ord. No. 19-1993, §§ 7- 9; Ord. No. 033-2009, § 2; Ord. No. 005-2010, § 8) http://library.municode. comlprint. aspx?clientID=1429 8&HTMRequest=http%3 a%2f%2fli... 11 /2/2010 Municode Page 1 of 2 Sec. 110-100. - Improvement guarantees. (a) Generally. An improvement guarantee to guarantee installation of all improvements required by this chapter or as a condition of approval shall be required as part of final plat approval in a form and amount approved by the planning commission and the county attorney. (b) Guarantee amount. The amount of the improvement guarantee shall cover all construction costs, the owner's engineering and platting costs, the county's engineering and inspection costs, and preacceptance maintenance costs. The costs may be reviewed periodically for accuracy and are subject to adjustment upward or downward by the director of planning based on existing economic conditions at the time of review and on the recommendation of the development review committee. The estimated cost of the water distribution network and main extensions shall be determined by the Florida Keys Aqueduct Authority after review and approval of the water distribution system. The cost may be estimated by the developer's engineer, but in such event shall be subject to review, revision if necessary, and approval by the FKAA. The guarantee shall be in the following minimum amounts unless the owner can show that certain of the costs have already been paid: (1) The construction cost: a. One hundred thirty percent of the estimated construction cost approved by the county's department of public works; or b. One hundred ten percent of a binding contract with a contractor qualified for the proposed work; (2) The owner's engineering and platting cost: at a cost verified by the engineer and surveyor; (3) The county engineering and inspection costs: based on an estimate by the county engineer of costs to be incurred; (4) The preacceptance maintenance cost: ten percent of the construction cost; and (5) The damage and nuisance guarantee: five percent of the construction cost. (c) Forms. One of the following forms of guarantee shall be submitted to the board of county commissioners as part of an application for final plat approval. (1) Cash escrow. Establishing account. An escrow account in the amount required shall be established a. with a federally insured financial institution (hereinafter referred to as the escrowee) in a form that meets the approval of the county attorney. The account shall be administered by the escrowee in accordance with the provisions of the escrow agreement to be negotiated by the county and the owner, developer and/or subdivider and approved by the county attorney. Such agreement shall contain provisions for specific application of such funds; partial contract payouts; contract retention percentages until complete; proration of reduction of deposit excess; final escrow settlement; and other pertinent administrative matters as may be required. b. Fund disbursement. The escrowee shall disburse funds from time to time for the purposes provided upon presentation of, and in accordance with, payouts ordered issued by the owner's engineer and approved by the department of public works. Such disbursements shall not be subject to approval or disapproval by the owner or escrowee or their agents other than the owner's engineer; however, for accounting purposes, the county shall send to the owner a copy of the approved engineer's estimate for payment at the time of county approval. Each payout order shall be accompanied by all appropriate swom statements, affidavits and supporting waivers of lien in full compliance with state law. C. Excess fund balance. If, at any time, the county engineer shall notify the escrowee in writing that the balance of funds then remaining undisbursed under the escrow account is more than sufficient to cover the cost of construction fees and maintenance hereinabove provided, and the notice shall specify the reduced balance then deemed sufficient, and if the escrowee shall concur in such determination, the escrowee shall pay over to the owner any excess of funds over such reduced balance then remaining undisbursed under the escrow account. (2) Letter of credit. The subdivider or owner may file a straight commercial letter of credit from any financial institution acceptable to the board of county commissioners in a form acceptable to the county attorney. The letter of credit must provide that the issuing financial institutions will pay to the county, or as the county directs, such amounts as may be required to complete the improvements according to the approved specifications. The letter of credit shall provide that its amount will be reduced from time to time as payments for improvements approved by the department of public works are made. The letter of credit shall be irrevocable for at least 36 months from the date of final plat approval and must provide that if any balance remains at the expiration of any time limit placed on it, the balance shall be deposited with the county in a cash escrow, a new letter of credit in the amount of the unpaid balance shall be issued, or a surety bond, as prescribed in subsection (c)(3) of this section, shall be provided. The letter of credit shall also provide that ten percent of the amount shall be retained until the department of public works and the director of the department of public works and the director of planning have approved the improvements required. (3) Surety bond. http://library.municode.comlprint.aspx?clientlD=14298&HTNMequest=http%3a%2f%2fli... 11 /2/2010 Municode Page 2 of 2 a, Form. The bond shall be in a form and with a bonding company approved by the county attorney. b, Time limit. The bond shall be payable to the county and enforceable on or beyond a date 36 months from the date of final plat approval. Release of any bond shall be conditioned on final approval and acceptance of the improvements by the county. (d) Insufficient fund balance. If, at anytime before the construction of all required improvements has been completed, the balance of funds remaining undisbursed under the escrow account or letter of credit is not sufficient, in the judgment of the director of planning, to cover the cost of construction of the improvements and all engineering costs, including the engineering and inspection fees of the county, or if by reason of any order, decree or writ of any court, or for any other reason the funds in the escrow account are insufficient, the undisbursed balance of funds shall be withheld, shall not be diminished and shall be unavailable for the purposes provided herein, unless the owner increases the balance to such amount as shall be required by the county for such purposes, in the exercise of its judgment, or shall provide such other guarantee of performance as may be required by the county. (e) Time limit. All guarantees shall provide that if required improvements are not installed (i.e., construction completed) within two years after approval of the final plat, the county may deem the subdivider in default and proceed in accordance with the provisions of subsection (f) of this section. (f) Default. In the event the director of planning determines that the owner has failed to install proposed improvements in accordance with the approved plans and specifications or has failed to comply with the terms of the guarantees hereinabove set forth, the director of planning, in consultation with the county attorney, may take one or both of the following actions: (1) Cash escrow and letter of credit. Advise the owner, in writing, of the failure, giving the owner 30 days to cure such default. If the owner fails to cure the default, the director of planning may recommend to the board of county commissioners that it declare the owner in default and, upon written notification to the escrowee of such declaration of default, all moneys on deposit pursuant to the escrow agreement or letter of credit shall and may be disbursed by escrowee solely upon authorization of the director of planning, and the escrowee shall be released by the owner as to such payment; or (2) Suretybond. Inform the bonding company in writing of default by the owner and request that it take necessary actions to complete the required improvements. (Code 1979, § 9.5-85, Ord. No. 33-1986, § 5-405) http://library. municode. comlprint. aspx?client1D=14298 &HTNMequest=http%3 a%2f %2 fli... 11 /2/2010 10106l2008 09:39 3058527113 JUDGE LUIS GARCIA PAGE 61 IN THE CIRCUIT COURT OF THE 1.6r" JUDICIAL CIRCUIT IN AND FOP, MONRO Er COUNTY, FLORIDA MONROE COUNTY, FLORIDA, Plaintiff, vs. KEY LARGO OCEAN RESORTS CO-OP, INC., Defendant, ROGER OLDS and PEGGY OLDS, MARIA BARROSO and ORESTES LOPEZ, SCOTT BARRETT and FELIX PEREZ, Interventors. RECEIVED MONRDE COUNTY ATTORNEY Case Number 96-CA-260-P ORDER ON PETMON FOR, DECLARATORY STATEMENT THIS CAUSE came before the court on October 8, 2008 upon the Petition for Declaratory Statement filed by Key Largo Ocean Resorts Co -Op, Inc. The court, having heard argument of counsel, reviewing the file, and being otherwise fully advised in the premises, finds: 1. Key Largo Ocean Resorts Co -Op, Inc. ('KLOR'O, has been in existence and operating under its corporate documents since 1980. The court finds that KLOR is a cooperative and subject to Florida Statute Chapter 719. Z. The court has received testimony from several witnesses and finds there have been material alterations and/or modifications to the common areas of the KLOR property, as well as to the units as proposed in the site plan. 3, In September of 2008, 100% of the board of directors approved the site plan. Pursuant to previous court orders and a settlement agreement between KLOR and Monroe County, KLOR shall hold an election on October 12, 2008 seeking approval of the site plan by the shareholders. The sole issue between the intervenors and KLOR is the percentage of 10/0612008 09:39 3058527113 JUICE LUIS GARCIA PAGE 02 shareholders needed to approve the proposed site plan. The position of KLOR is that section 15 of the by-laws is controlling and allows amendments when 75% of the board of directors and 51p/p of the shareholders approve the site plan. 4. The intervenors argue that Florida Statute 719.1055(1) is controlling and that under Florida law, unless otherwise stated in the by-laws, 100% of the shareholders must approve the site plan. 5. Paragraph 15 of the by-laws is a general provision that allows amendments to the by-laws when 75% of the board of directors and 51% of the shareholders approve the amendment. However, the Florida legislature has provided extra protection to shareholders when the proposed amendment changes the configuration or size of any cooperative unit or materially changes the common area. The legislative intent is codified in Florida Statute 719.1055(1), 6. Florida Statute 719.1055(1) states, "Unless otherwise provided in thco original cooperative documents, no amendment thereto may change the configuration or size of any cooperative unit in any material fashion, materially alter or modify the appurtenances of the unit, or change the proportion or percentage by which the owner of the parcel shares the common expenses and owns the common surplus, unless the record owner of the unit and all record owners of liens on it join in the execution of the amendment and unless the record owners of all other units approve the amendment. Cooperative documents in cooperatives created after July 1, 1994 may not require less than a majority of total voting interests for amendments under this section, unless required by any governmental entity. (Emphasis added.) 7. The court finds that the legislative intent was to protect shareholders from unknowingly agreeing to general provisions that can result in the alteration or modification of 10/06/2008 09:39 3058527113 JUDGE LUIS GARCIA PAGE 83 common areas or shareholders' interest in the cooperative. In order for the 10011/a shareholders approval required under Florida Statute 719.1055(l) to be trumped, the corporative documents must specifically inform a shareholder or prospective shareholder that his interest in the cooperative could be adversely affected if a disclosed percentage of shareholders agree. A shareholder's interest in a cooperative is paramount and can not be modified or altered by a general provision in the by-laws, i.e. paragraph 15 of the KLOR by-laws. B. The court is aware that it is more likely to snow in Islamorada in October that it is for all of the KLOR shareholders to agree on a site plan. The shareholders of KLOR are reminded that Monroe County has patiently awaited resolution of the property's health and safety issues. Continued litigation can only result in the worsening of an already bad situation. Therefore, KLOR and the intervenors are strongly encouraged to resolve their differences before the County`s patience is exhausted. DONE AND ORDERED this d clay of October 2 n Plantation K , Monroe County, Florida. Copies to. John Jabro, Esq. 90311 Overseas Highway, Suite B Tavernier FL 33070 31)5- B92,- acoS( Robert Shillinger, Esq. PO Box 1026 Key West, FL 33041 3 to 5 - Z'i< -2- - 5L11 110 Jose Herrera, Esq. 1401 Ponce de Leon Blvd., Suite 200 Coral Gables, FL 33134 -305- 44o -10ODZ. Frank Greenman, Esq. 5800 Overseas Highway, Suite 40 Marathon, FL 33050 305- ny - — to 2_3 I. GARCIA Judge — 3 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, THIRD DISTRICT KEY LARGO OCEAN RESORT CO-OP, INC., a Florida Corporation, Petitioner, V. MONROE COUNTY, a political subdivision of the State of Florida and ROGER OLDS and PEGGY OLDS, MARIA BARROSO and ORESTES LOPEZ, SCOTT BARRET and FELIK PEREZ, Intervenors, Respondents MONROE COUNTY'S RESPONSE TO PETITION FOR WRIT OF CERTIORARI On Appeal from an Order on Petition for Declaratory Statement entered in the Circuit Court of the Sixteenth Judicial Circuit in and for Monroe County, Florida L.T. Case No.: 96-CA-260-P Office of the County Attorney Robert B. Shillinger, Esq. Florida Bar Number: 058262 Attorneys for Respondent, Monroe County 1111 12`h Street, Suite 408 Key West, Florida 33040 Telephone: 305-292-3470 Facsimile: 305-292-3516 Email: shillinger-bob@monroecounty-fl.gov IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT CASE NO.: 3D08-2711 KEY LARGO OCEAN RESORT CO-OP, INC., Petitioner, Vs. LT: 96-260 MONROE COUNTY, et al, Respondents. MONROE COUNTY'S RESPONSE TO PETITION FOR WRIT OF CERTIORARI Respondent, Monroe County ("the County"), by and through the Monroe County Attorney's Office and the undersigned Chief Assistant County Attorney, respectfully submits this response to the Petition for Writ of Certiorari filed herein by Key Largo Ocean Resort Co-op, Inc. ("KLOR"). The County's interest in this matter is distinct from that of the other Respondents, (hereinafter "the Intervenors" or "other Respondents" as appropriate), a group of KLOR residents who appeared before the Circuit Court as Intervenors in a code enforcement lien foreclosure action brought by the County against KLOR, Strictly speaking, the County has no specific interest in the narrow issue before this Court as that is a matter between the KLOR corporation and some of its shareholders, the other Respondents to this action. However, the County does have an interest in this matter to the extent that this issue affects public safety and delays the correction of long standing, undisputed violations of the County code at the park. For those reasons, the County asks this Court to expedite this appeal and resolve this narrow issue as quickly as possible. Before this Honorable Court is an interlocutory, certiorari appeal of an order from the Circuit Court in the aforementioned code enforcement lien foreclosure action. See, Supplemental Appendix 1. In that order, the Circuit Court declared that 100% of the shareholders at KLOR would have to approve a redevelopment site plan that had been crafted pursuant to a development agreement between KLOR and the County to cure countless violations of the County Code. The issue before the Circuit Court was whether the site plan required the approval of 100% of the KLOR members, pursuant to F.S. 719.1055(1), or whether a lesser percentage was required as set forth in KLOR's articles of corporation and bylaws. A brief review of the history of the proceedings below is helpful to an understanding of the context in which the instant dispute arose. Along with filing this response, the County is submitting a supplemental appendix which includes documents that would be helpful for a fuller understanding of the history and context of the proceedings but which are not specifically necessary to resolving the narrow issue before the Court. The County submits this supplemental appendix to K document and summarize the procedural history of this case with the intent of assisting the Court in expediting resolution of this matter. In 1994, County code enforcement inspectors issued a Notice of Violation to KLOR because a park resident had built a structure without first obtaining a permit. See, Supplemental Appendix 2. Because the "lot" that was the site of the violation was owned by the corporation KLOR and because no documents existed in the public records demonstrating that any individual shareholder owned that lot — or of any lot at KLOR for that matter -- the code enforcement proceeding was initiated against the corporation before the County's code enforcement special master'. When the violation was not cured by the compliance date set forth in the notice of violation, KLOR was noticed that an administrative hearing would be held on January 25, 1995. See, Supplemental Appendix 3. After the special master found KLOR in violation of the Code, he gave the corporation until March 29, 1995 to cure the violation. See, Supplemental Appendix 4. The compliance date was later extended until rune 22, 1995. See, Supplemental Appendix 5. When the violation was not cured by June 22, 1995, the Special Master imposed a daily fine, which was secured by a lien. See, Supplemental Appendix 6. ' The Legislature later amended chapter 162 to change the title of the administrative hearing officer from special master to special magistrate. 3 When KLOR did not pay the fine or correct the violation, the County instituted lien foreclosure proceedings against KLOR in 1996, as authorized under F.S. 162.09. In light of the fact that the corporation owned the property in question — a single, officially undivided parcel of land which KLOR had unofficially divided into 284 lots or shares — the County named the corporation as the defendant in the foreclosure action. KLOR responded by seeking injunctive relief in the Circuit Court asking that the County be prevented from instituting additional code enforcement actions regarding other violations in the park while the corporation, acting through it's board of directors, sought a to rezone and/or redevelop the property in such a manner as to cure the violations. The Circuit Court granted that request and eventually ordered the County and KLOR to mediation in 2003. See, Supplemental Appendices 7 and S. The County and KLOR were able to negotiate a settlement agreement of the foreclosure action. See, Supplemental Appendix 9. The settlement agreement directed KLOR and the County to work towards a development agreement that would allow KLOR to redevelop the property in such a manner so as to eliminate the various code violations. See, Appendix 9. KLOR, the County, and the Court all understood and agreed that such a resolution was a much preferred alternative to foreclosure which would have resulted in eventual displacement of all residents at KLOR. The Circuit Court retained jurisdiction M over the parties to monitor compliance with the settlement agreement. See, Supplemental Appendix 10. After much negotiation and preliminary work, KLOR and the County were able to enter into a development agreement in 2006. See, Petitioner's Appendix J. The development agreement called for KLOR to remove all non -code compliant structures at the park and to replace them with code compliant permanent structures. See, Petitioner's Appendix J, R. 130, If 3. In carrying out the development agreement, KLOR submitted a site plan for the proposed redevelopment to the County's planning department for regulatory approval. See, Supplemental Appendix 11. A group of residents who feared that their respective interests would be adversely affected by the proposed site plan, moved to intervene in the still pending but settled foreclosure action. See, Supplemental Appendix 12. Once granted intervenor status in the foreclosure proceeding, the other Respondents asked the Circuit Court to reject the site plan based on alleged election irregularities with the KLOR Board of Directors, as well as issues over the site plan's adoption by KLOR. See, Supplemental Appendix 13. In an attempt to address those issues, KLOR sought a declaratory statement regarding the appropriate process for approval of that site plan. See, Supplemental Appendix 14. That hearing was held on October 8, 2008. The Circuit Court entered its order on 1 October 10'h interpreting F.S. 719.1055 and the KLOR governing documents to require unanimous approval of the site plan by the KLOR membership, including the Respondents, before it could be effective. See, Appendix 1. Two days later, KLOR held a special election of its shareholders on the issue of whether the site plan should be approved or rejected. As predicted by the Circuit Court, the site plan failed to gain 100% approval by the KLOR members. See, Supplemental Appendix 15. KLOR filed this instant appeal. As stated above, the specific issue before the Court is a matter between Petitioner KLOR and some of its shareholders, the other Respondents in this matter. Nevertheless, as the Circuit Court observed in its order dated October 10, 2008, the "County has patiently awaited resolution of the property's health and safety issues." At the risk of incurring the wrath of this Honorable Court by departing from the narrow issue before it by delving into matters far beyond the record of the Circuit Court's consideration of that narrow issue, the current situation cannot continue and must be resolved quickly before the luck of all involved runs out. In recent years, there have been at least two fires at the park. Because the mobile homes and other structures located at KLOR are so densely packed onto "lots" with insufficient space between them, the risk of death and injury is real and cannot be disputed. The County has taken steps to correct such immediate 9 concerns as improper electrical and propane hook ups but nothing short of removal of the non -code compliance structures will ensure appropriate fire separation. Since violations exist on virtually every "lot", the County envisions no way for code compliance to be effectively achieved other than removing all of the non - code compliant structures and starting over. For these reasons, the County respectfully implores the Court to reach a quick and speedy resolution of the issue before it so the parties and the Circuit Court can then determine how best to address the serious life safety issues at KLOR and finally bring closure to the KLOR saga. Respectfully Submitted, MONROE COUNTY ATTORNEY's OFFICE 1111 12t" Street, Suite 408 Key West, Florida 33040 (305) 292-3470 (305) 292-3516 facsimile By: R ert B. Khillineer Chief Assistant County Attorney FBN: 58262 VA CERTIFICATE OF COUNSEL I hereby certify that this response complies with the font type, print size, and page number requirements set forth in the Florida Rules of Appellate Procedure. Robert B. ghillinger, FBN: 582 CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT on November 18 , 2008, a copy of the foregoing was delivered to: Franklin D. Greenman, Esq., 5800 Overseas Highway, Suite 40, Marathon, FL 33050, attorney for the Petitioner; Jose Herrera, Esq., 1401 Ponce De Leon Blvd., Suite 200, Coral Gables, FL 33134 and John A. Jabro, Esq., 90311 Overseas Highway, Suite B, Tavernier, FL 33070, attorneys for th individual Respondents. Robert B. Shillinger, FBN: 058262 E:3 KEY LARGO OCEAN RESORT CO—OP v. MONROE CTY. Fla. 31 Cite as 5 So.3d 31 (F1a.App. 3 Dist. 2009) growth and planned traffic signal installa- tions along major arterial roadways; (5) the increase since 2004 in `observation" patients, patients whose conditions do not qualify for inpatient admission, but who are not in a condition to be discharged; (6) the special needs of the elderly that are not adequately served because of emergen- cy room overcrowding; (7) the support of Palm Beach Fire Rescue and the Sheriff's Office for Bethesda's proposed hospital; (8) Bethesda's proposal for a focused geri- atric program that was not part of its earlier application, and (9) the 2004 and 2005 hurricanes which exposed the vulner- ability of the local health care system in responding to the medical needs of a large population at times of natural disaster. The administrative law judge balanced the statutory and rule criteria, and found that the factors that supported the earlier denial slid not carry as much weight as they slid before. Competent, substantial evidence supports the conclusion that ma- terial changed circumstances existed, so that the doctrine of administrative finality does not bar Bethesda's second applica- tion. See, e.g., Mo4on F. Pho'd Ho8p. Ass'1r, Lne. v. State, 491 So.2d 586 (Fla. 1st DCA 1986); Heifetz v. Dep't cif' Bz s. Reg. Div. of Alcoholic Beverafjes, 475 So.2d 1277, 1281-82 (Fla. 1st DCA 1985). We have considered the other points raised by appellants and find them to be without merit. GROSS, C.J., POLEN, J., and GOLDENBERG, RENEE, Associate Judge, concur. KEY LARGO OCEAN RESORT CO—OP, INC., Petitioner, V. MONROE COUNTY and Roger Olds, Peggy Olds, Maria Barroso, Orestes Lopez, Scott Barret, and Felix Perez, Intervenors, Respondents. No. 3D08-2711. District Court of Appeal of Florida, Third District. Feb. 4, 2009. Background: Corporate owner of land for proposed mobile home park sought writ of certiorari quashing order of the Circuit Court, Monroe County, Luis M. Garcia, J. requiring approval of all shareholders in order to change size or configuration of the mobile home park. Holdings: The District Court of Appeal, Rothenberg, J., held that: (1) owner's bylaws rendered inapplicable the statutory requirement of 100% ap- proval of cooperative shareholders for amendments affecting the size or con- figuration of the mobile home park, and (2) writ of certiorari was necessary. Petition granted; order quashed. 1. Landlord and Tenant C-350 Corporate owner of campground for proposed conversion to mobile home park was a "cooperative" and thus subject to statutes governing cooperative form of ownership of real property; purchasers of leasehold interests in units were entitled to a share in corporation, bylaws expressly provided that laws regulating internal ad- ministration and operation of cooperative campground were incorporated by refer- ence, and day—to—day operation of mobile 32 Fla. 5 SOUTHERN REPORTER, 3d SERIES home park fit statutory definition of coop- Greenman, Manz & Ables and Franklin erative. West's F .S.A. § 719.103(12). D. Greenman, Marathon, for petitioner. See publication Words and Phras- es for other judicial constructions and definitions. 2. Landlord and Tenant C-350 Bylaws and articles of incorporation of cooperative owner of land rendered inap- plicable the statutory requirement of 100% approval of cooperative shareholders for amendments affecting the size or configu- ration of the cooperative which was being converted from campground to mobile home park; statute applied unless other- Mse provided in the original cooperative documents, and bylaws and articles of in- corporation provided a complete procedure for amendments which required approval of 51% of owner -lessees of the units. West's T.S.A. § 719.1055(1). 3. Landlord and Tenant C-350 Requirement that 100% of cooperative shareholders approve amendments to by- laws affecting the size or configuration of the cooperative unit is only triggered where the cooperative's original documents are silent as to an amendment enacting such a change. West's F .S.A. § 719.1055(1). 4. Certiorari C-5(2), 17 Writ of certiorari was necessary to quash trial court order forcing mobile home park cooperative to obtain 100% ap- proval of shareholders to amend site plan; order would have invalidated proper unit — owner vote, invalidated final settlement agreement reached after years of exhaus- tive negotiations, and likely caused reinsti- tution of lien foreclosure proceedings, and such harm was material and certain to last for the duration of the case and could not be corrected on postjudgrnent appeal. West's T.S.A. § 719.1055(1). Robert B. Shillinger, Chief Assistant County Attorney, and Cynthia Hall, Assis- tant County Attorney, for respondent Monroe County; and Jose M. Herrera, Miami, for respondents Olds, Olds, Barro- so, Lopez, Barret, and Perez, Intervenors. Before CORTINAS, ROTHENBERG, and LAGOA, JJ. ROTHENBERG, J. Key Largo Ocean Resort Co —Op, Inc. ("KLOR") seeks a writ of certiorari quash- ing a non -final trial court order entered on KLOR's petition for declaratory judgment. The trial court found that the proposed site plan at issue in this case cannot be approved without the votes of 100% of KLOR's shareholders, as provided by sec- tion 719.1055(1), Florida Statutes (2008). We grant the petition and quash the order entered below. KLOR is a corporation formed in 1980. The corporation owns real estate in Key Largo, which is divided into some 285 campsites. Each campsite was sold under a lease agreement providing the owner - lessee ("unit owner") with one share in the corporation. The campsite boundaries have not been surveyed, and no legal boundaries have been described. The property was originally zoned as a Recre- ational Vehicle District where permanent structures were not allowed. By 1994, the character of the camp- ground had changed. Many of the resi- dents built permanent structures, which did not comply with Monroe County's zon- ing restrictions. In 1994, Monroe County began code enforcement proceedings against KLOR because the names of the individual unit owners were not available KEY LARGO OCEAN RESORT CO—OP v. MONROE CTY. Fla. 33 Cite as 5 So.3d 31 (F1a.App. 3 Dist. 2009) in the public records. The County secured a lien against KLOR. In 1996, because KLOR failed to pay its debt and cure its non-compliance, Monroe County sought to foreclose upon the lien. KLOR requested, and was granted, time to seek rezoning (to Urban Residential Mobile Home) and to cure the code viola- tions. In 2003, a court -ordered mediation between KLOR and Monroe County re- sulted in the execution of a settlement agreement requiring Monroe County and KLOR to work together to bring the prop- erty into compliance. Negotiations result- ed in a 2006 Development Agreement. The final Development Agreement re- quired the approval of a proposed site plan, which involves changes to the size and configuration of certain cooperative units, including the widening of roads to allow for improved emergency vehicle ac- cess, the removal of non -compliant struc- tures, and a change in the location of certain common areas. Some of the resi- dents (collectively, "the Intervenors") felt that these proposed changes unfairly af- fected their interests. Accordingly, they moved to intervene, arguing in part, that the proposed site plan could not be ap- proved without 100% voter approval, as provided by section 719.1055(1). KLOR then brought the instant action for declaratory judgment, arguing that the proposed site plan required only 51% approval by the shareholder/residents, as indicated in KLOR's Articles of Incorpo- ration and Bylaws. The Intervenors ar- gued that 100% approval by the share- holders was required. The trial court found that: (1) KLOR is a statutory coop- erative, generally subject to Florida law as provided in chapter 719; and (2) ap- 1. Monroe County is only tangentially involved in the instant petition. As discussed by the trial court, Monroe County has a strong inter- est in resolving the health and safety issues on proval of the proposed site plan required the votes of 100% of the shareholders, pursuant to section 719.1055(1). On Octo- ber 12, 2008, 69.4% of KLOR's sharehold- ers voted to approve the proposed site plan, and this petition followed.' STANDARD OF IZE+ VIE+ W "It is well settled that to obtain a writ of certiorari, there must exist `(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.'" Reeves v. Fleetacood Ilmnes qf' Fla., Lae., 889 So.2d 812, 822 (F1a.2004) (quoting Bd. cif' Regelats v. Snyde), 826 So.2d 382, 387 (Fla. 2d DCA 2002)). KLOIZ'S STATUS AS A COOPERATIVE [11 As an initial matter, this Court must determine whether the trial court properly found that KLOR was a statutory cooperative, to which the provisions of chapter 719, Florida Statutes, are applica- ble. Because KLOR exists and operates as a cooperative, as defined by Florida law, this Court finds no reason to disturb the trial court's finding that, as a general mat- ter, KLOR is subject to chapter 719. Under Florida law: "Cooperative" means that form of own- ership of real property wherein legal title is vested in a corporation or other entity and the beneficial use is evidenced by an ownership interest in the associa- tion and a lease or other muniment of title or possession granted by the associ- ation as the owner of all the cooperative property. the KLOR property, but eventually, the pa- tience demonstrated by Monroe County so far, will and should run out. 34 Fla. 5 SOUTHERN REPORTER, 3d SERIES § 719.103(12), Fla. Stat. (2008). According to this definition, there is no doubt that the form of ownership vested in the unit own- ers at KLOR who purchased a leasehold interest in a unit which entitles them to a share in the corporation is best described as a cooperative. In addition, KLOR's Bylaws expressly provide that all Florida laws "regulating the internal administra- tion and operation of this Cooperative Campground shall be considered incorpo- rated by reference herein and shall control in case of any conflict with these By — Laws." (emphasis added). Because the day-to-day operation of KLOR fits the statutory definition of a cooperative, and because KLOR's Bylaws describe KLOR as a cooperative and ex- pressly adopt the statutory scheme, the trial court correctly deemed KLOR gener- ally subject to chapter 719. In response, KLOR argues that it can- not be deemed a statutory cooperative be- cause it failed to comply with certain technical provisions contained in Florida's cooperative statute. See § 719.1035(1), Fla. Stat. (2008) (providing that the coop- erative's documents "must be recorded in the county in which the cooperative is lo- cated"); § 719.105(1)(a), Fla. Stat. (2008) (requiring that a legal description of each unit "must be recorded in the office of the clerk of the circuit court"). Although it is not necessary to this Court's determina- tion of KLOR's status, we reject KLOR's argument, in part, because the doctrine of equitable estoppel likely bars KLOR from improving its legal position based upon KLOR's own failure to comply with the law. See ge'nerally Major League Ba,se- ball v. Mop w ni, 790 So.2d 1071, 1076-77 (F1a.2001) (discussing equitable estoppel and stating that the doctrine bars the 2. On October 12, 2008, 100% of KLOR's Board and 69.4% of the unit -owners voted to wrongdoer from asserting a shortcoming directly attributable to the wrongdoer's misconduct and profiting from his or her own misconduct). THE SPL,CIF,IC APPLICATION OI,, SECTION 719.1055 [21 Because this Court agrees with the trial court's finding that, as a general mat- ter, KLOR is subject to the provisions of chapter 719, the instant petition turns sole- ly upon whether the trial court departed from the essential requirements of the law when it found the 100% shareholder ap- proval requirement of section 719.10" specifically applicable to the proposed site plan vote. [31 Section 719.1055(1) provides that amendments to a cooperative's Bylaws af- fecting the size or configuration of a coop- erative unit may require the approval of the affected shareholder, all lien holders, and the record owners of all other units. However, and critically, this 100% approv- al requirement is only triggered where the cooperative's original documents are silent as to an amendment enacting such a change. See § 719.1055(1) ("Unless other- wise provided in the original cooperative documents, no amendment thereto may change the configuration or size of any cooperative unit in any material fashion .. ") (emphasis added). In this case, both the Articles of Incor- poration and the duly enacted Bylaws pro- vide for a complete procedure applicable to proposed amendments like those which will be imposed by adoption of the pro- posed site plan. And those documents provide that if 75% of the Board of Di- rectors and 51% of unit owners approve, then the amendment passes.' Therefore, according to the above -emphasized lan- approve the proposed site plan. MULLINS v. 7-ELEVEN, INC. Cite as 5 So.3d 35 (Fla.App. i Dist. 2009) guage at the outset of section 719.1055, subsection (1), the 100% approval require- ment in the statute does not apply, and the trial court's specific application of the stat- ute was a departure from the essential requirements of the law. [4] Allowing this departure from the law to stand would, in effect: (1) invalidate the proper KLOR unit -owner vote held on October 12, 2008; (2) invalidate the final settlement agreement reached after years of exhaustive negotiations; and (3) force Monroe County to compel resolution of the health and safety issues at KLOR, which would likely involve the re -institution of the lien foreclosure proceedings. Such harm is material, certain to last for the duration of the case, and cannot be cor- rected on postjudgment appeal. Thus, we grant KLOR's petition for writ of certiora- ri and quash the order entered by the trial court. Petition granted; order quashed. Pamela MULLINS, Appellant/Cross- Appellee, V. 7-ELEVEN, INC., and Sedgwick CMS, Appellees/Cross-Appellants. No. 1D08-1786. District Court of Appeal of Florida, First District. Feb. 12, 2009. Rehearing Denied March 27, 2009. Background: Appeal was taken from de- cision of the Judge of Compensation Claims, Diane B. Beck, finding a partial Fla. 35 rupture to workers' compensation claim- ant's right breast implant compensable and apportioning out 75% of the cost of repair- ing the rupture due to the aged condition of the implant. Holding: The District Court of Appeal held that it was error for Judge of Com- pensation Claims to apportion out 75% of medical costs associated with repairing the rupture due to the aged condition of the implant in claimant's breast. Affirmed in part, reversed in part, and remanded. 1. Workers' Compensation C-968 If damage to dentures, eyeglasses, prosthetic devices, or artificial limbs oc- curs in conjunction with, and as the result of, a workplace accident, the damage arises out of employment, and is caused in major part by work performed within the course of employment for workers' com- pensation purposes; no additional proof is necessary as to the major contributing cause of the damage. West's F.S.A. § 440.02(19). 2. Workers' Compensation C-968 A "prosthetic device" refers to an arti- ficial substitute or replacement, whether external or implanted, for a missing or defective natural part of the body, and requires a relatively permanent functional or cosmetic purpose, as that term is used in statute providing that, if damage to prosthetic device occurs in conjunction with, and as the result of, a workplace accident, the damage arises out of employ- ment for workers' compensation purposes. West's T.S.A. § 440.02(19). See publication Words and Phras- es for other judicial constructions and definitions. 3. Workers' Compensation C-999, 1001 Determination as to whether an artifi- cial device is a prosthesis, and may be compensable under workers' compensation law if damage to device arose out of em- ROCIE"R OLDS and, S)EGicr)" hus-ba-- d aid vtdfe; x A, -I-' A BARROSO,; h Ajid. EL DC- PER E Z, Petitioners, U KEY LARGO OCEAN RE, SORTS S COOP, ITC., and Respondents. :�' �, mwxwl 0 aa� Respondent Monroe County (hereinafter "the County"), by and through the Monroe County Attorney's Office, and the undersigned attorney, respectfully moves this Honorable Court, pursuant to Fka.R.App.P. 9.300(a) to grant expedited review of this matter, and as reasons therefore states as follows: Strictly speaking, the County has no specific interest in the narrow issue before this Court as that is a matter between the Petitioners, a minority group of unit owners at Key Largo Ocean Resorts Coop, Inc. (hereinafter "unit owners"), and the Respondent Key Largo Ocean Resorts Coop, Inc., (hereinafter "KL,OR"). However, as acknowledged by both the Third District and the Circuit Court, the i ' !{- Tcnl iG`'i:' 1 1'� �:fGL 1., I�'.i�, ): � 1� i R' public, and, delays ? h-(.` of fling sE���cil:���, ��il�;,��1 .'t�C viGIFAioii4 o L���.y `'�.•�E,l i'�_LF.E:2.. CJ.�.._rFw. IIl��_. 1Ci &..y P�..1 ..[Ci i�J' 'iXSsi6fl - F 1.��5Cr}i} `.14PNC.I-JyF CCi. L9. Yc� � y, _ —_ ,So.2d 3 F`L I f2 fi., 200 € J f f'I- , th. " (Fig:. 3d DC� 2009) (Thc "Coin sty has &. strong interest in resolving the li.ea th and safety issucs on the KLOR property, frut eventually, the patience demonstrated by Monroe County so far, -AU and should run out"'). Although the County did not file a similar motion before the Third District, it raised this concern to that Court in its Response to the Petition. The Third District apparently concurred with the County's position because it held oral argument on January 21, 2009, which was 85 days after KLOR filed its petition and only 30 days after the unit owners filed their Response. The District Court issued the opinion which led to the instant appeal a mere two weeks after oral argument. Suffice it to say, the current situation cannot continue and must be resolved quickly before the luck of all involved runs out. In recent years; there have been at least two fires at the park. Because the mobile homes and other structures located at KL®R are so densely packed onto "lots" with insufficient "fire separation" space between them, the risk of death and injury is real and cannot be disputed. The County has taken steps to correct such immediate concerns such as improper o'mplia'Jiic;e Uctau-C.- : Itr]i:l: e )_L ul`e, i at fll-o La e-f'a' 1 �%r" drl.' (11sid ki's ca 61:t S e C E �f o atr l e 1�1 t I., Sri Taf rere- for code conipliant. struetnzres and star inn over. WHEREFORE, for the, aforementioned reasons, the County respectfinlly implores tl7.e Coin to reach a quick and speedy resolution of the issues before it -- both jurisdictional and, if necessary, substantive -- so the parties, under the supervision of the Circuit Court, can address the serious life safety issues at � �, Respectfully Submitted, MONROE CouNTY AT ToRNEY's OFFICE 1111 12'h Street, Suite 408 Key West, Florida 33040 (305) 292-3470 (305) 292-3516 facsimile Sy:, &"n / — Robert B."Shilli6jef Chief Assistant County Attorney FBN: 58262 11-11' :7 'INCERTIFYTI Tervjkay� �"009'-' 'a Cap-,), vva's dlolivefed'via 'U, S. 171--rail and ellectrorl'Jic nuizlj Vi: Fraf.-11in D. Esq., 5800 ovoj_­scj"' 1--fighvifa _K%- 40, -Maraffion, , FL 33050ador�,,fz-y ' f t y, Su IDhC IlKespondent 1�,.,cy LargG Ooew,. R-osorts Co-op, and John A. J abv c), Esq. , 9031 T, Overseas SHIT'g-Invay, S'Usle B, Tavemier, FL 33010, atiorneys, fbr Petitioazrs. the: Robert B. §_Wling 6,, FBN: 058262 -- -------- I HEREBY CERTIFY, pursuant to Fla.R.App.P. 9.300(a), that counsel for a) Petitioners Roger Olds, et ux., et al., has expressed no position on the motion to expedite. b) Respondent Key Largo Ocean Resorts Co -Op, Inc. joins in the motion to expedite. IN THE SUPREME COURT OF FLORIDA SUPREME COURT CASE NO. SC09-678 LT CASE NO. 3D08-2711; CA P 96-260 ROGER OLDS, PEGGY OLDS, MARIA BARROSO, ORESTES LOPEZ, SCOTT BARRET, and FELIX PEREZ, Intervenors, Petitioners, vs. KEY LARGO OCEAN RESORT CO-OP, INC., and MONROE COUNTY, a political subdivision of the State of Florida Respondents. RESPONDENT MONROE COUNTY'S BRIEF ON JURISDICTION SUZANNE A. HUTTON MONROE COUNTY ATTORNEY FBN: 336122 Robert B. Shillinger, Jr. Chief Assistant County Attorney FBN: 58262 Shillinger-bob 2wmonroecount�fl.gov Monroe County Attorney's Office 1111 12th Street, Suite 408 Key West, FL 33040 (305) 292-3470 (305) 292-3516 (facsimile) TABLE OF CONTENTS TABLEOF CONTENTS...........................................................................................1 TABLE OF AUTHORITIES.....................................................................................2 SUMMARY OF ARGUMENT.................................................................................3 ARGUMENT.............................................................................................................4 THE DECISIONS IDENTIFIED BY THE PETITIONERS ADDRESSED DIFFERENT ISSUES THAN THAT RELIED UPON BY THE THIRD DISTRICT AND THUS DO NOT DIRECTLY AND EXPRESSLY CONFLICT WITH THE DECISION BELOW.......................................................................... 4 CONCLUSION..........................................................................................................9 CERTIFICATE OF SERVICE................................................................................10 CERTIFICATE OF COUNSEL..............................................................................10 TABLE OF AUTHORITIES Cases Aravena v. Miami -Dade County, 928 So.2d 1163 (Fla. 2006)......................... 5, 6, 8 Beau Monde, Inc. v Bramson, 446 So.2d 164 (Fla. 2d DCA 1984)..........................8 Downey v. Jungle Den Villas Recreational Assoc., 525 So.2d 438 (Fla. 5th DCA 1988).......................................................................................................................8 Florida Star v. B.J.F., 530 So.2d 286 (Fla. 1988)............................................ 5, 6, 8 Key Largo Ocean Resorts Co-op, Inc. v. Monroe County ............................... passim McAllister v. Breakers Seville Assoc., Inc., 981 So.2d 566 (Fla. 4th DCA 2008)...... ....................................................................................................................... 6, 7, 8 Persaud v. State, 838 So.2d 529 (Fla. 2003).............................................................5 Statutes § 718.110(4), Florida Statutes........................................................................... 3, 6, 8 § 719.1055(1), Florida Statutes........................................................................ passim Other Authorities Art. V, § (3)(b)(3), Florida Constitution........................................................... 3, 5, 8 2 SUMMARY OF ARGUMENT The decision of the Third District in Key Largo Ocean Resorts Co-op, Inc. v. Monroe County does not conflict with any of the decisions identified by the Petitioners or any other Florida appellate decision. Accordingly, the Petition does not satisfy the requirements necessary in order for this Court to exercise its conflict jurisdiction as set forth in Article V, § 3(b)(3) of the Florida Constitution. The decision below found that the default provision in § 719.1055(1), Florida Statutes, which, when triggered, requires approval of one hundred percent of a cooperative's members to amend the cooperative's original documents in such a manner to materially change the configuration or size of a cooperative unit or appurtenance, does not apply to the instant matter. The Third District concluded instead that both the "Articles of Incorporation and duly enacted Bylaws [of Respondent Key Largo Ocean Resorts Co-op, Inc.] provide for a complete procedure applicable to propose amendments like those which will be imposed by adoption of the proposed site plan." Slip opinion, p. 3. The decisions identified by the Petitioners involved cases where the default provision in § 719.1055(1) or the similar provision found in the condominium chapter at § 718.110(4), Florida Statutes, had been triggered by the absence of contrary language in those entities' original documents. Therefore, those decisions do not expressly and directly conflict on the same question of law with the decision 3 below and thus cannot serve as a basis for exercising conflict jurisdiction. Moreover, improvident exercise of conflict jurisdiction would only serve to needlessly prolong the correction of serious life safety issues at Key Largo Ocean Resorts Coop, Inc., (hereinafter "KLOR"). ARGUMENT I. THE DECISIONS IDENTIFIED BY THE PETITIONERS ADDRESSED DIFFERENT ISSUES THAN THAT RELIED UPON BY THE THIRD DISTRICT AND THUS DO NOT DIRECTLY AND EXPRESSLY CONFLICT WITH THE DECISION BELOW. As a preliminary matter, the Respondent Monroe County's (hereinafter "the County") interest in the issue before the Court is limited to the extent to which the underlying, ongoing, undisputed code violations affect the health, welfare, and safety of the residents of Key Largo Ocean Resorts Co-op, Inc., their visitors, and the County's fire fighters and deputy sheriffs who respond to emergencies at the park from time to time. Both the Circuit Court and the Third District recognized this limited but important interest. See, Key Largo Ocean Resorts, So.2d , fn. 1. Because the Petitioners have not articulated a sufficient basis to trigger this Court's conflict jurisdiction, the County is compelled to file this jurisdictional brief since the improvident exercise of that jurisdiction would only serve to delay the remedying of serious life safety issues at KLOR. The Petitioners have failed to identify any decision that directly and expressly conflicts on the same legal issue that was addressed by the Third District. 12 In simple terms, the decision below found that the default provision in § 719.1055(1) did not apply in light of the amendment provisions in KLOR's Articles of Incorporation and Bylaws, an issue not addressed in any of the decisions identified by the Petitioners in their jurisdictional brief. In order to establish conflict jurisdiction, the Petitioners must show that the decision below is in direct and express conflict with a decision of this Court or with one of the other District Courts of Appeal on the same issue of law. See, Art. V, § 3(b)(3), Florida Constitution. "This Court's discretionary review jurisdiction can be invoked only from a district decision 'that expressly addresses a question of law within the four corners of the opinion itself' by 'contain[ing] a statement or citation effectively establishing a point of law upon which the decision rests.' " Persaud v. State, 838 So.2d 529, 532 (Fla. 2003) quoting Florida Star v. B.J.F., 530 So.2d 286, 288 (Fla. 1988). A litigant's mere declaration of a conflict is insufficient for the Court to exercise its discretionary jurisdiction. Instead, the Court must determine if the holding of the decision below is irreconcilable with the holdings of the other decisions identified by the Petitioners before the Court should exercise its conflict jurisdiction. Aravena v. Miami -Dade County, 928 So.2d 1163, 1166 (Fla. 2006) (Whether holdings of district courts of appeal are irreconcilable is one of the tests for the Supreme Court's conflict jurisdiction). This Court has historically 5 interpreted Art. V, § 3(b)(3) to prohibit the exercise of conflict jurisdiction "where the opinion below establishes no point of law contrary to a decision of this Court or another district court." The Florida Star, 530 So.2d at 289. The holding of the Third District in the decision is not irreconcilable with the holdings of the cases relied upon by the Petitioners. The decision below found that the default provision in § 719.1055(1), which, when triggered, requires approval of one hundred percent of a cooperative's members to amend a co-op's original documents in such a manner to materially change the configuration or size of a cooperative unit or appurtenance, does not apply to the instant matter. The Third District concluded instead that both the "Articles of Incorporation and duly enacted Bylaws [of Respondent Key Largo Ocean Resorts Co-op, Inc.] provide for a complete procedure applicable to propose amendments like those which will be imposed by adoption of the proposed site plan." Slip opinion, p. 3. The decisions identified by the Petitioners do not address the triggering of the default provision in § 719.1055(1) or the similar provision found in the condominium chapter at § 718.110(4). Therefore, those decisions do not expressly and directly conflict with the decision below and thus cannot serve as a basis for exercising conflict jurisdiction. See, Aravena, 928 So.2d at 1166. The only decision cited by the Petitioners that actually interprets § 719.1055(1) is McAllister v. Breakers Seville Assoc., Inc. 981 So.2d 566 (Fla. 4tn 0 DCA 2008). The McAllister decision addressed whether a parking space constituted an appurtenance which could not be materially altered or modified without the owner's consent under the provisions of § 719.1055(1). 981 So.2d at 570. By its plain language, that statutory provision is only triggered if the cooperative's original documents are silent on the percentage of owners who must approve an amendment to those documents. Accordingly, the Fourth District's reliance upon the statutory default provision in McAllister can only mean that the original documents at issue in that case did not contain a provision requiring less than unanimous consent for qualifying amendments to those documents. Contrast that with the instant matter, where the Third District found that KLOR's original documents, i.e., KLOR's "Articles of Incorporation and the duly enacted Bylaws [did] provide for a complete procedure applicable to the proposed amendments like those which will be imposed by adoption of the propose site plan. And those documents provide that if 75% of the Board of Directors and 5 1 % of the unit owners approve, then the amendment passes." In short, the decision below and McAllister addressed distinct legal issues. While McAllister addressed whether limitations on parking spaces rose to the level of the type of amendment which would trigger the unanimous consent requirement set forth in § 719.1055(1), the decision below addressed whether KLOR's original documents effectively removed KLOR's amendment process from the default 7 provisions set forth in the statute. Accordingly, the decision below is not irreconcilable with McAllister nor does it establish a "point of law contrary to a decision of this Court or another district court." The Florida Star, 530 So.2d at 289; see also, Aravena, 928 So.2d at 1166. The other two cases relied upon by the Petitioners do not establish conflict jurisdiction either. See, Downey v. Jungle Den Villas Recreational Assoc., 525 So.2d 438 (Fla. 5th DCA 1988); and Beau Monde, Inc., v. Bramson, 446 So.2d 164 (Fla. 2d DCA 1984). As an initial matter, the Petitioners concede that both cases construe a statute that is found in a different chapter than the one at issue here. See, Petitioner's Jurisdictional Brief, p. 3. As such, neither case should be used to establish conflict jurisdiction because neither addresses the same law -- much less the same question of law -- addressed by the Third District's opinion. See, Art. V, § 3(b)(3). Without conceding the issue of whether cases construing analogous statutes to the one at issue may be used to justify the exercise conflict jurisdiction, both cases suffer from the same infirmities that the McAllister case does as far as establishing conflict jurisdiction is concerned. Both cases construe § 718.110(4), which contains introductory language "unless otherwise provided in the declaration as originally recorded" that is somewhat similar to the introductory language found The undersigned found no Florida case which even addressed the issue of conflict jurisdiction based upon analogous statutes, must less approved of that practice. 0 in § 719.1055(1). Both statutes allow for the entity to opt out of the unanimous consent requirements for qualifying amendments if the original documents contain a different provision. Unlike any of the three cases relied upon by the Petitioners, the Third District found that KLOR's original documents did contain such a provision, thus taping the instant matter out from under the dictates of the statutory default language and distinguishing the instant matter from those three cases. Because of this distinction, the Court should not exercise its conflict jurisdiction. CONCLUSION The Petitioners have failed to articulate grounds that would justify this Court's exercise of its conflict jurisdiction. Accordingly, the Respondent Monroe County, motivated solely by the need to remedy the long standing, undisputed, life safety issues that have been manifested at KLOR through violations of the County's Code, urges the Court to deny the Petition and decline to exercise its jurisdiction. 9 Respectfully submitted this day of May, 2009. MONROE COUNTY ATTORNEY' S OFFICE 1111 12th Street, Suite 408 Key West, Florida 33040 (305) 292-3470 (305) 292-3516 facsimile Robert B. Shillinger, FBN: 58262 Chief Assistant County Attorney Shillin er-bob c ,monroecounty-fl. gov Counsel for Respondent Monroe County CERTIFICATE OF SERVICE I HEREBY CERTIFY THAT on May , 2009, a copy of the foregoing was delivered to: Franklin D. Greenman, Esq., 5800 Overseas Highway, Suite 40, Marathon, FL 33050, attorney for the Respondent Key Largo Ocean Resorts Co- op, Inc.,, and John A. Jabro, Esq., 90311 Overseas Highway, Suite B, Tavernier, FL 33070, attorney for the Petitioners. Robert B. Shillinger, FBN: 058262 CERTIFICATE OF COUNSEL I HEREBY CERTIFY THAT this brief complies with the font requirements set forth in F1a.R.App.P. 9.210(a)(2). Robert B. Shillinger, FBN: 058262 10 12 So.3d 752, 2009 WL 1649712 (Fla.) (Table, Text in WESTLAW), Unpublished Disposition (Cite as: 12 So.3d 752, 2009 WL 1649712 (Fla.)) H Oniv the Westlaw citation is currentIv available. NOTICE: THIS OPINION HAS NOT BEEN RE- LEASED FOR PUBLICATION IN THE PER- MANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAW- AL. Supreme Court of Florida. Roger OLDS, et al., Petitioner(s) V. KEY LARGO OCEAN RESORT CO-OP, INC., et al., Respondent(s). No. SC09-678. June 11, 2009. *1 This cause having heretofore been submitted to the Court on jurisdictional briefs and portions of the record deemed necessary to reflect jurisdiction un- der Article V, Section 3(b), Florida Constitution, and the Court having determined that it should de- cline to accept jurisdiction, it is ordered that the pe- tition for review is denied. No motion for rehearing will be entertained by the Court. See Fla. R.App. P. 9.330(d). Respondent's motion for attorneys fees is granted in the amount of $2,500.00, conditioned on the party prevailing pursuant to applicable statutes, rules and case law. PARIENTE, LEWIS, CANADY, POLSTON, and LABARGA, JJ., concur. F1a.,2009. Olds v. Key Largo Ocean Resort Co-op, Inc. 12 So.3d 752, 2009 WL 1649712 (Fla.) END OF DOCUMENT Page I ;c; 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA MONROE COUNTY, FLORIDA Plaintiff, V. K.EY LARGO OCEAN RESORTS CO-OP, INC., Defendant and ROGER OLDS and PEGGY OLDS, MARIA BARROSO AND ORESTES LOPEZ, SCOTT BARRET and FELIX PEREZ Intervenors, RECEIVED CASE NO.: CAP 96-260-C NROa- COUNTY ATTpMNEY ORDER ON MONROE COUNTY'S MOTIOI'4 TO APPROVE DEVELOPMENT AGREEMENT AND KEY LARGO OCEAN RESORT'S STATUS REPORT This matter conning to be heard on Monroe County's Motion to Approve Development Agreement and Key Largo Ocean Resort's Status Rc porl and the Court reviewing the file, hearing arguments of counsel, and the status report given by Don Craig, Planing Consultant to Key Largo" Ocean Resort and otherwise being apprised of the relevant law, facts and circurnstances, FINDS AS FOLLOWS: The County's Motion to Approve the Development Agreement is GRANTED. The .Development Agreement entered into by Monroe County and Key Largo Ocean Resort Co- op, Inc., and adopted by the Monroe County Board of County Commissioners on June 21, 2006, by Resolution 242-2006,. which Developnent Agreement has been the subject of this litigation, and the appeals deriving therefrom, is hereby approved, ratified and validated in all respects, and the Parties are hereby ordered to comply with it. 2. The Court reserves jurisdiction over the Development Agreement to assure timely and complete performance of its terms by all parties. 3. The Court heard the testimony of Don Craig;, planing Consultant to Key Largo Ocean Resort Co-op, Inc., as an expert in planning and development, and co-author, with Monroe County, of the Development Agreement. about the planned implementation of the Development Agreement, including the necessary permitting, schedule of removal or demolition of existing structures, and the construction of the required infrastructure. The Court hereby adopts and authorizes the `Master Development Schedule', placed into evidence, as a guideline for the parties to implement the Development Agreement. 4. The Court recognizes that all plans, no matter how carefully drawn, may require modification and flexibility in their implementation. Considering the size of the undertaking required by the Development Agreement, and the unsettled economic conditions effecting all parties at this time, the Court orders all parties to report the progress of the `Master Development Schedule' and other events at Key Largo Ocean Resort Co-op, Inc., that may affect the Development Agreement's implementation, to the Court, in October, 2009., DONE AND ORDERED in Chambers in Plantation' Key, Florida, this day of August, 2009. ^� cc. I;_ iSbert Shillinger, Esq. 'n Jabro, Esq. Xanklin D. Greenman, Esq. -2- Judge Luis IN THE CIRCUIT COURT OF THE 16T" JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA UPPER KEYS CIVIL DIVISION — JUDGE GARCIA MONROE COUNTY, FLORIDA, Plaintiff, And ROGER & PEGGY OLDS, MARIA BARROSO, ORESTES LOPEZ, and SCOTT BARRETT, Interveners CASE NO. CAP-96-260 vs. KEY LARGO OCEAN RESORTS CO-OP, INC., Defendant. MOTION FOR TEMPORARY INJUNCTION & MEMORANDUM OF LAW The Plaintiff Monroe County ("the County"), by and through the Monroe County Attorney's Office and the undersigned Chief Assistant County Attorney, respectfully moves this Honorable Court, pursuant to Fla. R.Civ.P. 1.610, for temporary injunctive relief against the Defendant Key Largo Ocean Resorts Co- op, Inc. ("KLOR") and its residents, including but not limited to the Interveners herein, in order to protect the health, safety, and welfare of the residents and the community, and in support thereof states as follows: 1. The County is seeking a temporary injunction prohibiting occupancy and human habitation at KLOR until the serious fire and life safety issues outlined below and in the attached affidavit have been rectified. 2. The underlying action was filed in 1996 to foreclose a lien securing the payment of a code enforcement fine that was imposed against KLOR because of unpermitted construction. 3. In response, KLOR sought and obtained an injunction on May 6, 1996 against the County preventing further code enforcement prosecutions for the unpermitted work while KLOR sought to go through the steps necessary to cure the many code violations through rezoning the property. Later that year, the temporary injunction was modified to maintain, in essence, the status quo at the park. 4. In 2003, the parties were able to reach a mediated settlement agreement whereby KLOR agreed to cure the code violations by redevelopment as outlined in a development agreement. 5. In 2006, the parties entered into a development agreement which outlined a process for curing the code violations through redevelopment of the property. 6. This Court approved the development agreement on October 4, 2007 and entered a second order on August 22, 2009 approving the development agreement after resolving a technical question regarding the requirements for recording that document in the public records. 2 7. The site plan for the redevelopment project, which KLOR put forth to implement the development agreement and which the County Planning Commission approved, was eventually approved but not before being challenged all the way to the Florida Supreme Court. 8. Throughout the last two years, the Court has held a series of status hearings on the progress of the redevelopment project, which is opposed by the interveners. At multiple times throughout this period, this Court has recognized the legitimacy of the County's interests in resolving the fire and life safety issues at KLOR and has even warned the parties that "continued litigation can only result in the worsening of an already bad situation." See, ¶ 8, Order dated October 10, 2008. 9. At the last status hearing, the Court indicated that it would order the closure of the park within 60 days if KLOR's Board of Directors could secure financing for the redevelopment project. The Court also gave the County leave to raise any concerns regarding the health, safety, and welfare issues at KLOR at any time. 10. In a collateral proceeding, a group of KLOR residents are seeking the recall of the KLOR Board of Directors for the purpose of assuming control of the corporation for the stated purpose of stopping the redevelopment process. 11. The County has tolerated the abhorrent fire and life safety issues' at KLOR because KLOR was moving forward to cure the countless violations of the County Code through redevelopment of the park. ' The County's concerns are more fully set forth in the Affidavit of Assistant Fire Marshall Wally Romero, which is attached hereto and incorporated by reference herein. 3 12. Nevertheless, in its current condition KLOR violates, inter aiia, §§ 6- 27 (unsafe buildings) and 13-1 (adoption of NFPA fire safety codes) of the Monroe County Code as more fully set forth in the attached affidavit and in the memorandum of law below. Of particular concern to the County are certain specific hazardous practices that are ongoing at KLOR, which include but are not limited to: a. the use of unpermitted, unsecured, improperly installed, and improperly located propane tanks in or adjacent to the vast majority of "residences" at KLOR; b. the storage of boats, boat trailers, and personal watercraft within close proximity to many of these units; c. the parking of any vehicle on the private roadways of KLOR in a manner which inhibits the ingress and egress of emergency vehicles including fire and rescue vehicles; d. the occupancy of any structure that has inadequate fire separation from any adjacent structure; e. the occupancy of any structure with padlocks on the exterior doors of that structure; and f. the occupancy of any structure constructed of non -rated materials. 13. The County is concerned that the momentum towards curing the violations will cease if the financing for the redevelopment project cannot be secured or if the efforts to replace the Board of Directors are successful. 14. Independent of whether the Court orders the closure of the park pursuant to the redevelopment plan and regardless of whether the current KLOR Board of Directors remains in power after the recall petition is finally adjudicated or a new election takes place early next year, the County seeks a temporary 12 injunction prohibiting residential occupancy at the park until the immediate fire and life safety violations identified herein have been remedied. 15. As more fully set forth below in the memorandum of law, the County satisfies the requirements for entitlement to entry of an injunction either by operation of law or through the application of facts in the this case in that: a. the County and its residents will suffer irreparable harm absent entry of the injunction because each day in which the County's Code is violated amounts to irreparable harm; b. no adequate legal remedy exists to address the harm to the County and its residents caused by the Defendants' ongoing violation of the County Code; c. the County enjoys a clear legal right to the relief sought because it has a clear legal right to exercise its police powers through the enforcement of its code of ordinances; and d. an injunction will promote public safety which serves the public interest. Memorandum of Law Florida law supports the entry of the temporary injunction requested by the County, which is being sought to enforce the County's police powers. Metro - Dade County v. O'Brien, 660 So.2d 364 (Fla. 3d DCA 1995); see also, Dispoto v. Martin County, 969 So.2d 423 (Fla. 51" DCA 2007); Ware v. Polk County, 918 So.2d 977 (Fla. 2d DCA 2005); and P.M. Realty v. Invs, Inc. v. City of Tampa, 779 So.2d 404 (Fla. 2d DCA 2000). "There is a four-part test for determining whether a temporary injunction should be granted — when there is a showing that (1) the plaintiffs will suffer irreparable harm absent entry of the injunction; (2) no adequate legal remedy exists; 5 (3) the plaintiffs enjoy a clear legal right to the relief sought; and (4) the injunction will serve the public interest." Ware, 918 So.2d at 979; see also, Dispoto, 969 So.2d at 425. Even a cursory application of the law in this area to the facts in this case demonstrates that the County is entitled to a temporary injunction prohibiting the occupancy of the park at KLOR. Irreparable Harm and No Adequate Legal Remedy Prongs "When the government seeks an injunction in order to enforce its police power, any alternative legal remedy is ignored and irreparable harm is presumed." O'Brien, 660 So.2d at 365; see also, Ware, 918 so.2d at 979. These well established principles of law satisfy the first two prongs of the temporary injunction test especially in light of the fact that KLOR has repeatedly recognized that its units are in violation of the County's building and zoning code, not to mention the fire safety codes that have been incorporated into the County Code. Clear Legal Right to Relief As for the third prong, Florida appellate courts have repeatedly held that the knowing, continued violation of a county's zoning and building code is sufficient to satisfy the "clear legal right to relief' element necessary to obtaining a temporary injunction. See, O'Brien, 660 So.2d at 365; Dispoto, 969 So.2d at 425; and Ware, 918 So.2d at 980. There can be no serious argument that the building violations at KLOR have been known about since 1996 nor that those violations have been occurring since before this case was filed. Furthermore, as 0 the spreadsheet found under Exhibit B to the development agreement makes clear, most lots have structures that were built without benefit of a building permit in violation of § 110-1402 of the Monroe County Code. The lack of building permits as well as the manner with which these illegal additions have been built violates § 6-27 of the Code as well as the standard fire safety codes incorporated through § 13-1. Monroe County Code § 6-27(a) includes within the definition of the term unsafe buildings: "all buildings, structures ... which are unsafe ... or do not provide adequate egress, or which constitute a fire ... hazard or are otherwise dangerous to human life, or which in relation to existing use, constitute a hazard to safety or health." Under that subsection, unsafe structures can be remedied by a demolition permit or "where specifically allowed by this section, to bring the building into compliance with applicable codes." Under § 6-27(b)(1), a "building shall be deemed a fire hazard and/or unsafe when: a. There is an accumulation of debris or other material therein representing a hazard of combustion. b. The building condition creates hazards within respect to means of egress and fire protection. Under § 6-27(b)(2), a "building, or part thereof shall be presumed to be unsafe if: 2 Prior to the recodification of the Monroe County Code effective March 1, 2009, § 9.5-111 was the code section that required a building permit for all development including the work done at KLOR. 7 h. The construction of the building or construction or installation of systems or components within the building has been commenced or completed without a permit having been obtained or where the permit has expired prior to appropriate inspections and completion and the issuance of a certificate of occupancy or certificate of completion. k. The building or part thereof meets the physical criteria of an unsafe structure set forth [in §6-27(a)] and has not been repaired and brought into compliance with the building code following the expiration of the reasonable periods after notice to the property owner by the code enforcement inspector, fire marshal, or building official. Under § 6-27(b)(3)a, all "unsafe buildings, structures, or systems are ... declared illegal and shall be abated by repair and rehabilitation or demolition." Section 13-1 adopts the National Fire Prevention Association Code referenced in Wally Romero's affidavit as the "minimum fire safety code" for the unincorporated areas of the County. The configuration of the illegal additions at KLOR, in extremely close proximity to each other, many of which were built with inadequate fire rated materials, as well as the unlawful storage and use of propane gas and other fuels at KLOR, are inherently unsafe and in direct violation of § 6-27. Simply put, the current situation is akin to a tinder box just waiting to be ignited. The KLOR members and residents in the surrounding neighborhoods, whose homes could be in danger if a large fire were to ignite at KLOR, are entitled to protection from such a conflagration. The County is clearly entitled to exercise its police powers by enforcing its code as well as the national and state codes which it has adopted and which have been imposed by State law. See, e.g., F.S. 633.025(1) & (2); and F.A.C. 0 chapter 69A-42. Accordingly, the third prong for obtaining a temporary injunction is satisfied. Public Interest Finally, in order to obtain a temporary injunction, the injunction must serve the public interest. It would be difficult to imagine a more important public interest than promoting safety through the enforcement of the fire and life safety codes. More to the point, the Third DCA has already recognized the County's "strong interest in resolving the health and safety issues on the KLOR property." Key Largo Ocean Resorts Coop, Inc. v. Monroe County, 5 So.3d 31, 33 n.1 (Fla. 3d DCA 2009). Similarly, this Court stated approximately 6 weeks ago that the "County's concerns about the safety, health and welfare of KLOR's residents are legitimate." Given these two pronouncements, there can be little dispute over the satisfaction of the fourth prong. By way of comparison, injunctions have been granted in favor of local governments which had been sought to remedy violations with far less grave consequences than which are at stake here. For example, in O'Brien, the Third DCA reversed and remanded with instructions to enter a temporary injunction against the O'Briens for operating "a business without complying with county ordinances or securing necessary permits." 660 So.2d at 365. In Ware, the Second DCA reversed and remanded for entry of a temporary injunction prohibiting the occupancy of a completed building which had been built without 9 benefit of a building permit. 918 So.2d at 980. In Dispoto, the Fifth DCA affirmed a temporary injunction which required the cessation of operation of a commercial radio station in a residential neighborhood and the removal of the radio tower from the property, which had been erected without the appropriate permits. 969 So.2d at 424-6. None of these opinions even mentions the life safety concerns that are at issue in the instant matter. Neither the length of time this matter has been pending nor the County's past approach of allowing the violations to be cured through redevelopment should defeat the County's entitlement to a temporary injunction. See, Fla. Dept. of Environ. Regulation v. Kaszyk, 590 So.2d 1010 (Fla. 3d DCA 1991). In that case, the Third DCA "h[e]ld that DER was entitled to a temporary injunction prohibiting the owner from continuing to violate state" regulations regarding wastewater discharge standards even though the violations had purportedly been settled through negotiated consent orders because the owner was not currently in compliance with state law at the time the injunction was sought. 590 So.2d at 1012. Conclusion As the foregoing analysis makes clear, the County is entitled to an injunction prohibiting the ongoing, continued violation of its code. The injunction sought would allow for the protection of the most valued interest at stake in this matter, that of human life and safety. The fires that have already occurred at KLOR as well as the concerns of the Assistant Fire Marshal outlined in his affidavit serve as a wake up call to all participants in this litigation —i.e., KLOR, 10 its board of directors and residents, the County, and this Court -- that we have all been quite fortunate that no death or serious injury has occurred to date despite these issues. Let's not tempt fate further, especially during the volatile transition period which the KLOR community is experiencing. WHEREFORE, for the foregoing reasons, Monroe County respectfully requests entry of a temporary injunction prohibiting human habitation, including but not limited to the use and occupancy of the structures at Key Largo Ocean Resorts Coop, Inc., until the above -described life safety issues at the park have been remedied, or for any other such relief that the Court deems just and proper. Respectfully submitted, MONROE COUNTY ATTORNEY'S OFFICE 1111 121" Street, Suite 408 Key West, Florida 33040 (305) 292-3470 (305) 292-3516 facsimile By: Robert B. Shillinger Chief Assistant County Attorney FBN: 58262 Certificate of Service HEREBY CERTIFY that a true and correct copy of the foregoing motion for temporary injunction and memorandum of law were furnished, via U.S. Mail and e-mail on December , 2009, to: Franklin D. Greenman, Esq., Attorney for Defendant KLOR, 5800 Overseas Hwy., Suite 40, Marathon FL 33050 and fdgreenman(o-)bellsouth.net; and to John A. Jabro, Esq., Attorney for Interveners, 90311 Overseas Hwy., Suite B, Tavernier FL 33070 and iiabro(c�aol.com. Robert B. Shillinger 11 1z/10/ZUU3 WED M5 FAI 3U56bz'f113 coin UUZ IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA UPPER KEYS CIVIL DIVISION -- CHIEF .JUDGE GARCIA MONROE COUNTY, FLORIDA, Plaintiff, And ROGER & PEGGY OLDS, MARIA BARROSO, ORESTES LOPEZ, and SCOTT BARRETT, Intervenors VS. KEY LARGO OCEAN RESORTS CO-OP, INC., Defendant. CASE NO. GAP-96-260 AGREED TEMPORARY INJUNCTION This matter, having come before the court upon Monroe County's motion for temporary injunction, and the Court, having heard the argument of counsel, and being otherwise fully advised of the premises including an agreement of counsel can some of the matters at issue, hereby: GRANTS the County`s motion in part and defers ruling in part until further Order of this Court, and it is therefore ORDERED and ADJUDGED as follows: Effective immediately, there will be no deliveries of propane gas to the Key Largo Ocean Resorts Coop, Inc. ("KLOR") property. The KLOR management shall direct the security guard at the gate to refuse entry to any provider attempting to make deliveries. 2_ Effective immediately, all boats, trailers, personal water craft, portable gasoline tanks, shall be removed from the residential part of the KLOR property. If not stored off -property, these items may 4o 12/t0/2003 WED 9:55 FAX 3058527113 C. UU41 UU4 only be stored in the marina and designated boat storage area of the KLOR property. 3. Effective immediately, all vehicles and/or structures of any type shall be removed from the paved roadways in the residential section of the KLOR property and those roadways shall remain clear for the free flow of traffic including emergency vehicles at all times. 4. Within tent days from the date of this order, all propane tanks which are connected to residential structures shall be removed by a licensed professional and stored in an approved, secure location until removed from the KLOR property by the tank owner. A limited exception to this provision is permitted for portable propane tanks with 20 Ibs or less capacity if that tank is secured to a gas barbeque , grill which is located outside of any structure. AND 5. The Court will supplement this ruling to address the remaining issues identified in the County's motion, on or after a hearing that will be held on December 10, 2009 at 1:30 pm. DONE and ORDERED this _r day of December, 2009, in Plantation Key, Florida. - tr> t d.f-s la�-e.- Cc-, ounty Attorneys Office V Q4 Franklin D. Greenman, Esq. John Jabro, Esq. 12/22/2003 MON 17:40 FAX 3058527113 2001/002 IN THE CIRCUIT COURT OF THE 16" JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA UPPER KEYS CIVIL DIVISION — JUDGE GARCIA MONROE COUNTY, FLORIDA, Plaintiff, And ROGER & PEGGY 01-DS, MARIA BARROSO, ORESTES LOPEZ, and SCOTT BARRETT, vs. RECEIVED OP, 2 3 200 MONROE COUNTY ATTORNEY Interveners CASE NO. CAP-96-260 KEY LARGO OCEAN RESORTS COOP, INC„ Defendant, SUPPLEMENTAL TEMPORARY INJUNCTION CLOSING KEY LARGO OCEAN RESORTS COOP INC. AS OF JANUARY 15 2010 This matter, having come before the Court on the Motion for Temporary Injunction filed herein by Plaintiff Monroe County, and the Court, having considered the affidavit of Assistant Fire Marshal Wally Romero, and having inspected the property on December 8, 2009, and having heard the argument of counsel, the Court hereby: FINDS that the fire code violations at KLOR represent a threat to the health, safety and welfare of the community particularly to the residents of KLOR; and the Court further FINDS allowing continued occupancy and habitation at KLOR presents a real threat to the We of the KLOR residents, visitors, and others in the community if it is permitted to remain open; now therefore it is hereby: ORDERED and ADJUDGED that the County`s motion for temporary injunction is hereby GRANTED and it is further 12/22/2003 RON 17:40 FAX 3058527113 &02/002 ORDERED that KLOR shall be closed for habitation and occupancy effective: at midnight on January 15, 2010, and it is further ORDERED that this order shall not prohibit entry into the park by persons receiving written authorization from the KLOR Board of Directors to conduct work pursuant to the redevelopment project of the park, and it is further ORDERED that this Temporary Injunction supplements the Agreed Temporary Injunction entered by this Court on December 9, 2009_ DONE and ORDERED this day of December 2009, in Plantation Key, Florida. Cc: ounty Attorney's Office ,anklin D. Greenman, Esq. tiJdhn Jabro, Esq. 01/15/2004 THU 14.45 FAX 3058527113 Z 001/013 IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MONROE COUNTY MONROE COUNTY, FLORIDA Plaintiff, CASE NO.: 96-CA-260-P V. KEY LARGO OCEAN RESORTS CO-OP, INC., Defendant, and RORGER OLDS and PEGGY OLDS, MARIA BARROSO and ORESTES LOPEZ, SCOTT' BARREL- and FELIX PER1=Z, Interveners. ORDER MODIFYING DECEMBER 9, 2009 AND DECEMBER 22, 2009 TEMPORARY IN3UNCTION THIS CAUSE, having come upon to be heard on January 12, 2010 on Key Largo Ocean Resorts Co-op, Inc.'s ("KLOR!� Motion to Dissolve or Modify Temporary Injunction. This Court, having heard the testimony of witnesses, received exhibits into the record, having heard the argument of counsel for the parties, the Court having been advised after the hearing by the parties that Exhibit 2 has been amended, reducing the number of full-time resident units from 56 to 46, as shown in Amended Exhibit 2 and being otherwise fully advised in the premises, modifies the December 9, 2009 and December 22, 2009 Temporary Injunctions as follows: 1. The current full-time residents of KLOR, specified in Amended Exhibit 2, which Exhibit is made a part of this Injunction, shall be allowed to continue their habitation and occupancy through midnight on February 28, 2010. 2, KLOR shall continue to comply with conditions 1 through 4 in the December 9, 2009 Temporary Injunction and shall remove any remaining gas cylinders exceeding 20 lbs and the remaining boat as described at the January 12, 2010 hearing within 5 days of the date of 01/15/2004 THU 14:45 FAX 3058527113 f�002/013 CASE NO.96i-260-GA--P this order. An after -the -fact permit for the removal of the gas cylinders shall be applied for by KLOR if required by the Monroe County Building Official. 3. As an explicit condition of the current residents' habitation and occupancy, the premises of those particular living units shall have two (2) smoke detectors and one (1) fire extinguisher by midnight on January 15, 2010. it is further ordered that a representative of the Office of the Monroe County Fire Marshal shall have the right to inspect said premises to assure that the smoke detectors have been installed and the extinguishers are present in the trailers and/or vehicles. 4. The Monroe County Fire Marshal shall have access to the premises of KLOR to t inspect said premises for compliance with the fire and life safety issues. The Marshal shall provide the office of KLOR with 24 fours notice of its intent to inspect the living units and the residents shall provide access to their living units within a half hour after the Marshal arrives at KLOR. 5. The KLOR Board of Directors shall promptly initiate, under the supervision of a licensed building official or licensed professional, an inventory of the life safety and building violations with the first attention to the units identified in Amended Exhibit 2 and shall serve a report containing the inventory for those units within 30 days of this Order. A supplemental inventory for the remaining units will be provided on a date to be determined at the status conference before this Court which will also address compliance with this Temporary Injunction. Said status conference shall occur before the undersigned .fudge on February, 26, 2010 at 9;00 AM at the Upper Keys Government Center, 88820 Overseas Highway, Plantation Key, Florida Monroe County shall have the right upon reasonable notice to KLOR to send inspectors onto the properly to verify the representations set forth on the inventory. 2 01/15/2004 TH[I 14:46 FAX 3008527113 N031013 GASF, NO. 96-260-GA-F 6. The KLOR Board of Directors, its officers, representatives and agents shall be authorized to enter the Park at any time to assure compliance with this Injunction, the Development Agreement, and the necessary business and operation functions of KLOR, and may reside on the premises until midnight of February 28, 2010. Any owners not identified in Amended Exhibit 2 may enter the premises only under the supervision of KLOR Board of Directors and for the limited purpose of removing and securing their property or for the purpose of bringing their living units into compliance with applicable codes. No work may be performed by a unit owner without permits which copies must be provided to the KLOR business office. The regular elections scheduled for February may be held on the premises but KLOR is responsible for the assurance of strict compliance with this Temporary Injunction and may not allow any unit, not identified in Amended Exhibit 2, to be inhabited after January 15, 2010. Any violation of the habitation clause of this injunction Known to KLOR shall be reported promptly to the County Attorney. 7. KLOR's office will remain open during regular business hours, at least one security guard with be present 24 hours a day, and all the security guards will be provided with a copy of this order with the Amended Exhibit 2 to assure that access to individual living units will be limited to the units identified in Amended Exhibit 2. 8. To demonstrate compliance with this Court's order, beginning no later than five days of the date of this Order, the security guards shall maintain a log of all persons, not residing in living units identified in Amended Exhibit 2, entering and exiting the park including the dates and times of their entry and departure. The aforementioned log shall be signed by the security guard at the end of each shift representing the accuracy of and completeness of the log. KLOR will maintain those records and will provide affidavits from any employees r3 01/15/2004 THU 14:46 FAX 3058527113 R 004/013 CASE NO. 96-260-CA-P concerning the accuracy of those records upon request of the County Attorney. A copy of the lag will be provided with the inventory report, 9. KLOR Enterprises, Inc., d/b/a Gil's Grill and Marina which operates the on -site restaurant at KLOR, which currently uses propane gas cylinders supplied by Homestead Gas, shall be allowed to continue to use said gas and shall be allowed to receive deliveries of said gas, subject to the codes and permits of all authorities having jurisdiction. This order must be strictly adhered to by KLOR. Any violation of this order may result in the immediate closure of KLDR. DONE AND ORDERED in Chambers in Plantation , onroe County I' ida this � day of January, 2010. — IS M. GARCIA Chief Circuit Judge cc: Counsel of record 4 01/15/2004 THU 14:46 FAX 3058527113 N05{013 KEY LARGO 0CEAN RESORTS, CO-OP, INC. UPDATED & FINAL LIST OF RESIDENTES Q 1/13/09 LOT M SHAREHOLDER OWNERS RENTERS 2 James Nevrhouser x 4 Fernandez Peralta x 8 Milanes Elizabeth x 9 Maza Clemente - x — 26 De Leon Rolando & Hilda x 30 Darbat Montoto x 31 Sotolongo A Yolanda x 41 Arcia Andres x [ 42 Felix & Miriam Perez x 66 -- M Blanco & M Goyanes x �...._. �.�r...._....�.._. 57 Am aro Vidal 59 Richard Rodriguez x BD ILopez Carlos M x 71 IRoquetRosa x 73 Gonzalez Eva x 80 Marquez Apolonlo x 81 JPerez Carlos& Jessie x 86 Fil es Jor e x 87 Ramos Lourdes & Garcia X 89 Gomez De Molina Teodoro x 93 Ca devilla-Osvaldo & MI na . ....... X................................ 102 Vasquez Jorge & Graciela x 125 Lopez Julio & Ofelia x 132 Pire Raul & Reinalda x 133 Medrano Raul & Georgina x 140 Dora Sanchez x 143 Ulises Perdomo X 149 Cuenca Carlos & Georgina X 153 Valdez Orlando & Meigla _ x 171 Delgado Cosme x 176 Manna Joan � x j 179 Olds Roger & Margaret x 198 Gonzalez Isabel & Ibrahim x 199 Rodriguez Musa Faisel x 209 Faris Jose & Ada X 211 Swa.nsi er Anita McCauly j X 01/15/2004 THU 14:47 FAX 3058527113 &06/013 214 1 Gonzalez Victor & Onidia x 22 Verez Hugo & Manuel x 232_._,. Gomez Salvador & Maria x 234 Polkoski Allan X 250 Evans Rork & Ann x _ 252 Fernandez Celso & Noelia K 250 Quintero Braulio & Marta x 271 Madrinan Luis & Miriam � x 274 Lechuga Miguel x 278 Rodriguez Pedro & Brenda X BOARD MEMBERS - 69 Lopez-Recio Orestes & Magdalena x 75 Barrett Margarita & Scott x 76 Pine Fidel & Gicela K 253 Alvarez Juan & Wanda K _ 01/15/2004 TUU 14:47 FAX 3058527113 R 007/013 KEY LARGO OCEAN RESORTS, CO-OP, INC. OWNERSMENTERS LIVING IN PARK LOT SHAREHOLDER AS OF 111211 a 1 Rabasa Carlos & Maria ---- 2 JamesmNewhouser 3 Roberto Fajardo 4 � Fernandez Peralta x 5 Yaquelin Coyanes X 6 Logo Benifd�._...r..�..._....__. 7 Cabrera Marrero Teresita 8 Milanes Elizaberth K 9 Maza Clemente X 10 Martinez Eugenio -...��.... _...w,, ��. x .^.- 11 -"Lorenzo Aleida i2 Hernandez Hugo & Elisa 13 Jose Garcia �.��.~...�. 14 Medina Jose & Caridad 15 --- - Sanz Armando & Miriam 16 Mas Norma W 17 - Gonzalez Gilberto & Caridad 18 Ramirez Orlando & Mercedes 19 Denis Jorge & Sfefany 20 Enrrique Pedro 21 Sobrano Javier & Lileane 22 Hernandez Pedro 23 CaMal_ AIR Marra 24 Padilla Manuel & Elisa 25 Olivera Manuel & Maria 25 - De Leon Rolando &_Hilda x 27 Lama Sara & Aurora Perez 28 Tops Valerio &Janet �.� ...........�.,.�,,.._v..�.�.,....� 29 Pariente Rafael 30 Barbat Montoto x 31 ----- Sotolongo A Yolanda x 32 wJ Snard Jose & Marisela 33 Gandarilla Gregorlo & Elena 34 1 Roaado Elio & Lourdes --.W . ..M.'.. 01/15/2004 THU 14:48 FAX 3058527113 08/013 35 Riesgo Moraima- 36 Eduardo Gomez be Molina 37 Vladimir & Adele Lorenzo.w,.. . 38 Leyda P Hevia 39 Gomez Luis E 40 Hayduk John Laina 41- Arcia Andres x 42 & Miriam Perez µ�.X� 43 _ — _Felix AOuiar Hello] Elba 44 Rufino/Adelaida Martinez 45 Adolfo/Daisy Marrero 46 Toledo Ramon/V Geraldine 47 Rodriguez Jesus/Hortensia X 48 Delarnorena Silvio/Juana 49 belamorena Michael _..w ..._. rt�.. X 5o Gomez Faria 51 Delamorena Juana X 5? Frank & Caridad Valdes Y — 53 Marta Cardenas 54 Franco Family LLC 55 Goyanes Barquerizo 66 _M Blanco & M Ggyanes x 67 _�- Am pro Vidal X 58 Berrenechea Carlo/Aura 59 Richard Rodriguez 60 Lopez Carlos M x 51 Mayoral Paracia Lourdes 62 Joaquin Polo/Delia 63 Baker Anita Maria 54 Aodriauez Esteban & Idema 56 Andres & Yolanda Torres fib IVelazguez John & Ronald 67 JIFlores Beida fib Arca Miguel & Maria E 69 Lopez Recio Oreste & Maria iQ Valdez Raul_ 71 Ro uet Rasa -- X 72 Mendez Jesus & Gloria _ Gonzalez Eva X 74 Solares Barbara 75 Barrett Margarita & Scott- 76 Pino Fidel & Gicela 01/1012004 THU 14:48 FAX 3058527113 0 0001013 77 Filpes Claudio & Mercedes 78 Chamizo Joaquin �µ... 79 Balbis Carlos & Irene Marquez A o[onia �.wk,..,..... � .------- X 80 81 Perez Carlos & Jessie S2 Blanco Jose R Marie Claire $3 Cordero Jorge & Marta 84 Fernandez Antonio & Aleida 85 Valdes Gustavo rV 86 Filpes Jorge X 87 _ Ramos Lourdes &Garcia' x 88 - Capdevila Sergio & Milagro 89 Gomez De Molina Toodoro x- 90 _ Gonzalez Jose & Dinorah -� _._.- 91 Balva Pedro & Concepcion 92 Puertas Agustin & Maria 93 Capdevila Osvaldo & Migna 94 Chalu'a Mario 95 _ Garcia Manuel & Mi[agrvs 96 Gonzalez Bernardo & Celedina 97 Sanchez Leonides &'Yolanda 98 IlAcebedo Nestor & Isabel 99 1 Cruman Family Ltd 00 - Adams Robert & Martha f �. - - 101 Altam us LR 102 Vasquez Jorge & Graciela x 103 Marquez Andres & Lidia 104 Marquez Jose 105 Simon Juan & Ana — 106 Fernandez Antonio & Aleida 107 Artiles Jorge & Mena 108 Gonzalez Lmigdio & Olga 109 Plasencia Calixto & Berta 110 Pomares TQ os Barberis Rolando & Lee Ann i l 1 -- 112 Bentancourt Alina 173 Rodriguez Manuel & Silvia le 'ada Heriberty & Maggy 114 115M" Cabrera Rodo[fo & Ana 116 _ Gonzalez Juan & Isabel 117 Mar uez Andres & Lidia 118 Martel Juan 01/15/2004 THU 14:48 FAX 3058527113 9 010/013 119, Sanchez Julio &-Nora .............. . .._ _�_-- ----w...._.....�..�,..,__. 120 Balsera Jose ._...m...,. 121 Pelayo Cuervo & Carmen ---. __- 122 Rodri uea G Esteban 123 --- Hernandez Omar 124 Garcia David & Cristina 125 Lopez Julio & Otelia X 126 Gonzalez Ibrahim & Isabel 127 Tejada Heriberto & Maggy 128 Marti Marcos & Ma a[ µ 129 Guillen Jose 130 Gonzalez P & Maria Martel 131 Perez Reyneiro & Maria 132 j Pire Raul & Reinalda 133 Medrano Raul &. Georgina XG 134 Tellez Emilio & Maria_ _ 135 Kenneth & Audrey Merscrnan 135 Mugarra Gilberto & One a �.�.. 137 Cabrera Rodolfo & Ana - 138 Lopez En ri ue_ M. 139 Garcia Carlos & Mary 140 Dora Sanchez X _ 141 Dora Sanchez X 142 Quintana Alelda 143 Perdomo Ulises X 144 Ghaviano Celestino & Irma _ 145^ Mores Ramiro & Maria 146 Sorra'n Orlando & Craciela 147 Ramos Oreste & Beatriz 148 Enrique Alain _ 149 Cueca Carlos & Geor ina X 150 Cecilio Martin & Raul Trujillo T 151 GuiHen Ramon & Berta 152 Herrera Juan A 153 Valdez Orlando & Mei la X 154 Estrada Jose & Gladys 155 Martinez Norberto & Hydee 156 Sotolon o Amado & Yolanda 157 Quintana Lidia A 158 Rodriguez Zoraida 159 Ruiz Mario & Rosa 160 IGuerra Gerardo & Barbara 01/15/2004 THU 14:40 FAX 3058527113 161 _ Bafista Hector ' I 162 Navarrete Victor & Raquel X 163 Llorens Enterprises Inc�� 164 - _--_ Lean Armando & Ruben 166 lCreative Group Invesment� 166 ISebastian Roberto_��� �...�. 167 Key Paradise # 167 168� Piedrahita Amado & Juliete 169 --- Lopez Joe & Julie _ 170 -- Garcia Leo x 171 i?elc�adp Cosrne X 172 Arbide Isidaro & Georgina 173 Escobar Tania Yamite Torres- 174 Aces Antonio & Silvia x 175� 1llladrinan Luis & Miriam 176 Hanna Joan x T 77 �._ - Acosta Yeun�C -�Luk _..._..,. - " r & Mirta �ct�ta Orlando 179 Olds Roger & MargaretwX - Olds Roger & Margaret 180 181 _ Cabrera Juan & Magdalena 182 Bello Angela M X 183 Rodriguez Robert & Mary _...._. ,.�. Rojas Jor e 184 186 Gonzalez Hilda & Lilian-....� 186 Salva Comcepcion & Zuleika 187 Salva Comcepcion & Zuleika .. 188 Che+ong +& Yuk Sum Yeung 189 Rodriguez Alberto Y Lynda 190 Martinez Silvia & Sara 191 Znidarcic Gabriel 192 Plasencia Ro erio & Mayra .._..,__ 193 Diaz Rene Lopez Antnio & Yolanda 194 195 -,� Daher Paul & Leticia X 196� .�_ x Cindy Sue Gregg 197 _,IGonzalez Fleites Roberto & Nanc 198 Isabel & lbrahIM x 199 IROdri uez Musa Faisel X Aburto Ramiro 200 201 Forte Vir inio & Miriam Grillo Alvarez Ramon & Maria-.1------ --- 202 01/15/2004 THU 14:49 FAX 3058527113 N12 /013 203' Valor Jose 204 Collazo Elizaberth_& Yamile 206 Jimenez Julio a 206 Collazo Eugenio & Rosle 207 Hume Trading Co Ltd 208 More Julio & Norma 209 Faris Jose & Ada X' 210 Garcia Alma 211 Swansiger Anita Mc Cauly 212 Figueras Paris Marta -� _ ��_M _----- 213 Jorge Jose 214 Gonzalez Victor & Onidia X 215 Verde Suarez Robert & Ne.ida 216 DanaauyJose & Nancy- 217 Chaviano Celestino & Irma 218 Fernandez Alex & Lourdes X 219 Diaz Alberto & Carmen 220 Masso�Daniel & Mercedes 221 Verdz Hugo & Manuel X 222 _ — N Pariente Rafael & Maria 223 Gonzalez Victor 224 Coronel Armando & Elsie � 225 Lopez Roberto & Barbara 226 Martinez Rufino 227 Martinez Rufino _ 228 Dopico Veloso 229 Dopico Veloso 230 Perez Ffavia 231 Goddard Frank & Ivy 232 JIGomez Salvador & Maria X 233 Hernandez Alberto & Milagre _ 234 Polkoski Allan -..-- — — - - Lovermi Joseph _235 236— Sanchez Maria Del Carmen 237 Valdez Miguel � ----- — 238 Lovermi Joseph & Susana 239 Garcia Ernesto & Maria 240 Cortez Roberto & Andrea --- 241 Fleites 242 Hevia Roberto & Xis)mara 243 Beach Area BFCH - 244 Gonzalez Raymond & Annie 01/15/2004 THU 14:50 FAX 3058527113 2 013/013 245 Collazo Eugenio '& R.osie 246 Gonzalez Rene & Beatriz 247 _ Barandiaran Eduardo & Marylin . 248 Mar iinez Pedro & Alba 249 Cruz Alma & P Hernadez 250 _ Evans lion & Ann X- 251 Aedo Hector & PauCa ---- X 252 Hernandez Celso & Noelia X 253 __.. _.----,... Perez Rolando ..- - - ...__ ....,._. r..... �,. �..,..�..�.....,..LL._.-_ Lo naz Maximo &Concepcion 264 255 Garro Luis & Xiomara 2v6 Sencomo Esteban & Millie 257 — Garro Luis & Xiomara 268 Quintero Braulio & Marta X 259 Calif Eduardo 260 Barbuscio Ruben 261 Daly Paula- 262' Perez Pedro & Martha 263 Alvarez Juan & Wanda 254 ICordero Pedro & Georgina 255 111-lernandez Moises 256 ITorres Melinda & Nelson 267 lRodriquez Rena & Elina Derreneohea Pedro & Teresita 268 269 Gonzalez Emigdio & Olga 270 ` Rodriguez Jorge & Jannet — 279 - ..._. Madrinan Luis & Miriam x 2T2 Capdeyila Grog & Mercy 273 Newhouser James X 274 Lee luga miguel 275 Pausa Juan & Clara 278 Ta apes Edelrr�iro & NiCda _ - - 277 Gonzalez Onesimo & Efren Rodriguez Pedro & Brenda � 278 279 Gonzalez Emi dio & Olga Iglesias Jose & Maria - 280 289 Garcia Pedro X 282 Hernandez Moises Hernandez Moises 283 284 Hernandez Moises Rx Oate/Time MR9-05-2010(WEO) 13,d3 3058527113 05/04/2004 TUE 15,55 FAX 3058527113 P. 001 �aaila2a IN nM CIRCUIT COURT OF n-E SMEENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MONROE COUNTY CASE NO.96-260-CAI' MONROE COUNTY, FLORIDA PIdaw VA KEY LARGO OCEAN RESORTS CO-OP, INC., Defendant, and RORGER OLDS and PEGGY OLDS, MARIA HARROSO and ORESTES LOPEZ, S COTT EARRET and FELIX PM= , Interveners. ORDER MODIRrING d AR—Y 15 2010 T'EMPGRARY INJUNCTION THIS CAUSE, having come upon to ba Lmud on February 25, 2010 an Key Largo Ocean Resorts Co-op, Inc °s CTMOR') Second Motion to Dissolve or Modify Temporary Iduaction. This Court; having received exhibits, having heard the argument of counsel for the pexties, and the Courtbaviag beea advised thatthe number of fall -time resident: units and directors bave been reduced from 46 to 43, as shown in the List of Resideuts dated March 16, 2010 attached hereto, and being otherwise fully advised in the premises, modifies the, January 15, 2010, December 9_ 2009 and December 22, 2009 Temporary Injunctions as follows: 1, `the current full-timd residents of XLOIt, specified in the updated Exhibit $ (3116110), which exhibit is made a part of this I.ajuncdon, shall be allowed to continue their babzfatian and occupancy through midAgbt on ?uae 9, 2010. Rx Oate/Time MAY--05-2010(WEO) 13:43 05/04/2004 TUE 15:55 FAX 3058527113 3058527113 P.002 � 0021020 CASE NO, 96-260-CA-P ? KLOR shall continue to comply with- conditions 1 through 4 in the December 9, 2D09 Temporary Injunction as well as the conditions of the January 15, 2010 Temporary Injunction. Said prior injuncgoRs shall remain in full farce and effect subject to the modMeations herein. 3. KLOR 4. An of ur the -fact permit far the removal of the gas cylinders shall be obtained by It is fluffier ordered that a representative of the Office of The Monroe County Fire Marsbal shall- have the right to impect said premises promptly to assure that the smoke detectors have been installed and the extinguishers are present in the trailers and/or vehicles. 5. Rwhng previously received the February 11, 2010 Memoraudum from Assistant Firs Marsbell Romero and the February 9, 2010 letter from Certified Building Official Barton and having reviewed the KLOR Compliance Proposal in Conformance with Development Agreement, Paragraph.5 of the Xanuaty 15, 2010 Order is modified as follows: the KLOR Board of Direotors shall promptly initiate the `.CLOD Compliance Proposal im Conformance with Development Agreement" Tlie Phased Compliance Plan and Phased Compliance Schedule is aitached hereto. Phase I shall be initiated promptly, inspections and demolition psrmits obtained, and substantiaI demolition shah be completed prior to June 1, 2010. A UOR Compliance Spreadsheet reflecting the progress of compliance sbell be submitted five (S) days prior to the stains conference, which shall occur before the undersigned Judge on Wednesday, June 9, 2010 at 10:00 am. at the Monroe County Courthouse, 88820 Overseas highway, Plantation Key, Florida, At the status conference, f ffiar consideration shall be given as to whether perfozmauce under the ICOR Compliance Proposal is consistent with the Development Agreement, which 1) Rx Date/Time MAY-05-2010(WED) 13:43 05/04/2004 TUE 15:56 FAX 3058527113 3058527113 P. 003 Z003/020 CASE NO. 96-2260-CA P remains in full force and effect I LOWs performance under its proposal "I in no, way be deemed an amendment ormndifeation of the Development Agreement. DONE AND ORDERED in Chambers in Plantation Key, Monroe County, FIoridathis MAq day of 2010 name pro tune February 35, ?Q10. LUI M. GARCIA Chi r : Counsel of record y 3 Rx Oate/Time MRY-05-2010(WEO) 13:43 305B5E7113 P.004 05/04/2004 TUE 15:56 FAX 3058527113 004/020 KEY LARGO OCEAN RESOM3, CO-CIP, INC. UPDATED EXHIBIT R @ 3/15/10 LOT SHAREHOLDER OWNERS RENTERS 4 Fernandez Peralta X S Mllanas EIlzahath X 9 Maze, Clemente X ZB De. Leon Rolando & Hilda X 31 5otolongo A Yolanda X 41 Arcia Andres X 42 Felix & Miriam Perez X 49 Juana, Michael & William de la Morena X SE M Blanco & Ali sayanes X 57 Arnparn Vidal X 71. Iloquet Rasa X 73 Gonzalez Eva X 8o MarquezApolonia R 81 Perez Carlos& Jessie X 86 Filpes Jorge X 87 Ramus Lourdes & Garcia X 89 Gomez Ile Molina Teadoro X 93 Capdevilla Osvaldo & Migna X 125 LopezJulio & Ofella X 13Z Piro Raul & Reinalda X 133 Medrano Raul & Georgina X 140 Dora Sanchez X 143 Ulises Perdarna X 149 Cuenca Carlos & Georgina X 153 Valdez Orlando I Meigla X 170 Garcia, Leo X 171. Delgada casme X 1.76 ' Hannalean X 198 Gonzalez Isabel & Ibrahim X 200 Aburto, Ramiro X 211 Swansiger Anita McCauly X 214 Gnnzalez Victor & Onldia X 221 Veraz Hugo & Manuel X 232. Gomez Saiva#pr & Maria X .250 Evans Ron &Ann X 252 Hernandez Celso & Noalla X 253 Quintero Braulla & Marta X 273. Madrinan Luls & Miriam X 274 Lechuga, Miguel X BOARD MEMBERS - 59 Lopez -Redo Orestes & Magdalena X 75 Barrett Margarita & Scott X 76 Plno Fidel & GiceIa X 263 Alvarez Juan & Wanda X Rx Date/Time MflY-05-2010(WE0) 13:43 305B527113 P.D05 05/04/2004 TUE 15:56 FAX 3058527113 005/020 KEY LARGO OCEAN RESORTS, CO-OP, INC. COMPLIANCE SCHEDULE PHASE 1 LOT SHAREHOLDER NAME PHASE 1 RABASSA 1 2 NINEHOUSER 1 3 FAJARDO 1 5 GOYANES 1 6 LAGO 1 7 tARRERA 1 Id MARTINEZ 1 11 WRENZO Z 12 HER14ANDEZ 1 13 MATUS 1 14 MEDINA 1 IS SANZ 1 16 MAS 1 17 GONZALEZ 1 18 RAMIRE1 1 19 DENIS 1 2{7 ENRIQUEZ 1 x1 5011RADO 1 22 HERNANDEZ 1 2511 BRABUS130 1 3/25/2010 LOTH SHAREHOLDER NAME PHASE 251 DALY 1 262 PEREZ 1 264 COROER0 1 265 HERNANDEZ 1 256 7ORRES 1 257 RODRIGUEZ 1 259 BARRENECHEA 1 269 , GONZALE7,/QUIRIELLO 1 27D RODRIGUEZ 1 272 CAPAEVILA i 273 NINEHoUSER 1 275 PAUSA 1 275 APANES/MIYARFS/FALCO 1 277 GONZALE'G 1 279 RODRIGUEZ 1 279 GDNZALWQUIRIELIO 1 280 IGLESIAS 1 281 SAWA 1 2BZ HERNANDEZ 1 283 HERNANDEZ 1 284 mERNANoEz 1 Rx Date/Time MAY-05-2010(UEO) 13:43 3058527113 P.006 05/04/2004 TUE 15:56 FAX 3058527113 006/020 KEY LARGO OCEAN RESORTS, CO.OP, INC. COMPLIANCE SCHEDULE PHASE 2 LOTff 1, SHAREHOLDER NAME PHASE 23 CARGAL 2 24 PADILLA 2 25 OLIVERA 2 53 CARDENAS T S4 FRANCO FAMILY LLC x 55 GOYANES 2 56 PARRENECHEA 2 54 RODRIGUEZ 2 GD LOPEZ 2 61 FAaELi7 2 62 POLO Z 63 BAKER 2 E4 RODRIGUEZ 2 65 TORRES 2 GG VELAZQUEZ 2 67 FLom 2 fib AREA 2 70 VALDES 2 72 MENDEZ 2 74 SOLARES 2 77 FILPFS 2 70 CHAMIZO 2 73 SALBIS Z B2 BLANCO 2 63 CORDERO 2 64 FERNANDEZ 2 Hs VALDES 2 m GOWALEZ 2 22A CORONEL 2 225 LOPEZ 2 226 MARTINEZ. 2 227 MARTINET Z 228 I]OPICDfVELO5O 2 225 OOPICONELOSO 2 230 coLL 2 731 GopaARe 2 259 CAUL 2 Rx Date/Time MAY-05-2010(WE0) 13:43 305B527113 P•007 05/04/2004 TIE 15:56 FAX 3058527113 0007/020 ICEY CARGO OCEAN RESORTS, Ca -OR INC. COMPLIANCE SCHEDULE PHASE 3 LOTO� SHAREHOLDERNAlle PHASE 27 LWAS a 20 iL3Yo5 3 4a iOLE[]p 3 a8 CAPOEVILA 9 90 GONZALa 3 9l SALVA 3 92 PUE9M 3 94 CHALUJA 3 5S GARCIA 3 97 5ANEM s !Is ACEV= 3 99 MUZ 3 140 T80PICALISLAND HOLDINGS 3 101 MAHWEz 3 102 VAMUEL 3 103 MARWEE 9 104 MARQUES: 3 105 WON 3 306 FEHNANDEZ 3 107 ARTILE5 3 100 GONZALEZ 9 109 P[ASECtLlA 3 11D TOY051POMARES 3 3n BNjdEfI15 5 W HERNANBEZ 3 3/25/20T0 Rx Oate/Time MAy-05-2010.(WEO) 13:43 3058527113 PA08 05/04/2001 TUE 15:56 FAX 3058527113 008/020 KEY LARGO OCEAN RESORTS, CO-OP, INC. COMPLIANCE SCREDULE PHASE 4 LDTO SHAREHOLDER NAME PHASE M SETANCOURT 4 in Ra0RimlEL 4 W TFJEm 4 175 CAMERA h ns GGN7ALEZ 4 117 MARWEi 4 ] MARTEL 4 m SANG EZ 4 120 PAISEiA 4 122 CLIERVO 4 J22 HOWGLIEZ 4 in HEMNIIEZ 4 124 GARCIA 4 126 SDIMLEZ 4 127 TEIEPA 4 m MARTIAL 4 1Z5 GUILLEN 4 13D rsaraALEZ 4 151 PEREZ 4 134 TELLE2 4 135 MERSCNNIAN 4 336 MUGARRA 4 297 MUM 4 139 LOPEZ 4 - 139 GARCIA A 141 SANCHE7 4 142 CLUINTANA 4 257 GARRG 4 3/2-5j2010 Rx Date/Time MRY-05-EO10(WEO) 13A3 3058527113 P.009 05/04/2004 TUF 15,57 FAX 3058527113 �009/020 ICEY LARGO OCEAN RESORTS, CO-OP, INC. COMPLIANCE SCHEDULE PHASE 5 LOT SHAREHOLDER NAME PHASE 205 JIMENEZ 5 206 COLLAZO 5 207 HUMETRADING 5 208 MORE 5 209 PARIS 5 27.0 GARCIA 5 212 PARTS NY REALTY 5 213 JORGE 5 215 VERDE 5 226 DANAUY 5 217 CHAVIAND Si 218 FERNANDEZ 5 234 POLKO5KI 5 235 LOVERMI 5 235 SANCHEZ 5 237 VALDE5 5 Us LOVERMI 5 239 GARCIA 5 240 CORTES 5 241 FLEITES 5 242. HEVIA 5 241 GQNZAW 5 245 COLLAZO 5 Z46 GONZALEZ 5 247 BARANDARIAN 5 248 MARTINEZ 5 249 CRUZ/HERNANDEZ 5 251 AEDO 5 20 PEREZ 5 254 LOYNAZ 5 255 GARRO 5 256 BENCOM4 5 3/25/2010 Rx Date/Time MRy-05-2010(WED) 13:63 3058527113 P.010 05/04/2004 TUE 15:57 FAX 3058527113 2010/020 KEY LARGO OCEAN RESORTS, CO-OP, INC. COMPLIANCE SCHEDULE PHASE 6 LOTH .. SHAREHOLOERNAME PHASE 144 CHAVIANO 6 245 FLORES 6 146 BORRAIO 6 147 RAMOS G 148 ENRIQUEZ 6 ISO TRUJILLO 6 151 GUILLEN G 352 HERRERA 6 154 ZINCOTRU57'CORP. 6 I55 GIGUO 6 167 GJANTANA 6 156 RODRIGUEZ 6 ISO RUIZ 6 1GD WERRA 6 161 BATISTA e in NAVARRETE 6 163 LLORENS ENTERPRISES 6 1G4 LEON 6 155 CREATNE GROUP INVSTMTS 6 1GG SEBASTIA 6 167 KEYS PARADISE0167 6 ISO PIEORAHITA 6 i69 LOPEZ 6 170 GARCIA G 17Z ARBII3E 6 173 E500BAR 6 174 j ACEA 6 175 MADRINAN G 177 ACOSTA 6 179 ACOSTA 6 1.79 OLDS G 100 OLDS 6 161 CABRERA G 102 BELLO 6 183 RODRIGUEZ 6 164 ROTAS 6 185 GONZALEZ 6 185 SALVA 5 387 SALVA 6 18B CHEONG/SUM 6 Rx Date/Time MRy-05-2010(WE0) 13:43 3058527113 P.UII 05/04/2004 TUE 15:57 FAX 3058527113 N11/020 KEY LARGO OCEAN RESORTS, CO-OP, INC, COMPLIANCE SCHEDULE PHASE 7 LOTV WREHOLOER NAME PHASE 29 PARIENTE 7 30 MONTOTO 7 31 FSNARD 7 39 GANDARILLA 7 34 ROSAVO 7 35 MENESES 7 35 GOMEZ DE MOLINA 7 37 LORENZO 7 36 HEVIA 7 39 GOMEZ 7 4A HAYOUR 7 43 AGUMR 7 44 MARIINEZ 7 45 MARAERO 7 47 RODRIGUEZ 7 48 DE LA MORENA 7 49 BE LA MORENA 7 50 FERIA 7 52 BELA MORENA 7 514 VALDES 7 19s ROoRIEUEZ 7 190 MARTINEZ 7 291 zNinARCJC 7 192 PLASENCIA 7 193 ow 7 154 LOPEZ 7 195 OAMER 7 IRS GREGG 7 3w FLEMAS 7 159 MUSA 7 a[io ABURTO 7 701 FORTE 7 202 ALVAREZ 7 2113 VALOR 7 PA4 COLLAZO 7 219 DEAZ Z2� MA5SO �J7 222 MORALES 3/25/201n Rx Date/Time MRY-05-2010(WEO) 13:43 305B527113 P.012 05/04/2004 TCE 15:57 FAX 3058527113 2012/020 KEY LARGO OCEAN RESORTS, CO-OP, INC. COMP MNCE SCHEDULE PHASES LDTII SHaREHDLDERNAME PHASE 4 FERNANDTZ B a MILANES a 9 MA7A B ?fi UDN 8 31 s=LuNGD n 41 ARUA II 47. FEBEZ 8 55 BLANCD a 57 VMAL II 69 L�PF� flEC[D 8 71 R05QUET B 73 GnNZALEZ B 75 ZARRETT x 75 FIND n0 MARQUEZ n 81 PEREZ a a6 FILP13 8 S7 RAMOS a a9 DoMEZOEMDIINA a 93 WMEWA a 14 LOPEZ a 332 PIKE B 33 MELIRANR 8 10 SANCHEZ n 143 PERI]9M9 a 149 1 CLIENCA 8 153 VALDES 8 171 DELGADO a 176 HANNA a 19B GDNPALEZ a 233. SWANSiGER B zi4 GONZAL2 221 UCREZ a 732 GOMEZ 8 730 EVAN5 a M HERNANGEL a z>e DUINTF.RD a 2E3 ALVAREZ a 271 MADRINAN 8 Z74 LECHWA 8 . 3123/2010 Rx Date/Time MRY-05-2010(WE;O) 13:43 305B527113 P.013 05/04/2004 T[E 15:57 FAX 3058527113 Z 013/020 NUNN- SIMMUMMEMM r 0i 01 fn A w n -j Ellf w in Q 0- z w U Z J i3.. U Of O J Y W N Q EL D Ix a. Rx Oete/Time MAY-05-2010(WED) 13:43 305HE7113 P.014 05/04/2004 TUE 15:57 FAX 3058527113 014/020 a RA U 7 W U) Q s a z J1. LLI U Z Q IL m O U rr O LLJ U) D a 0 c� Rx Date/Time MRY-05-2010(WED) 13.43 3058527113 P.015 05/04/2004 TUE 15:58 FAX 3058527113 R015/020 `I 01 !0 Iu C i*I ! ! cq ! ¢ z ! EL z CL LLI z a LL 2 0 U ir O 0 W In O L1. O a Rx Oaze/Time MAY-05--2O10(4V00) 13:93 05/04/2004 TUE 15:58 FAX 3058527113 305B527113 P.016 2016/020 i ID �= D 1 rl.:usrCurcnrm �wNc� V .rw. wwr ! n o s tl n II r �a a a fl n � r (a�oso��� ve-� —vaoo oseu0eeseessssseao�� 94&4p� I a G � i r �0 8 0 0 Vim] tl tlLa a A ➢ a C3 _ a. a r o rT H � i I � o r 24 ➢ � LLJ p f a 0 1 CL EL Rx bate/Time HRY-05--2010(VEO) 13:43 3058527113 P.017 05/04/2004 TUE 15:59 FAX 3058527113 � 017/020 o - g s a la • C a a B r q in ' 1 a IJ Ic IQ IF W U) i1 z (L w C) Q a O U tY d Y LiJ O a 0 Ex a Rx Oete/Time MAY-05-2010(WEO) 13:43 30585271H P.018 05/04/2004 TOE 15:59 FAI 3058527113 b181020 0� i 6 to Z uj -91 - W44 © �����������d�r��� 0 GGz F vv vv Rx uate/lime MHV-uS-lfulu[Wtu) lj:5(f F.uur 05/04/2004 TUE 16:04 FAX 30585V113 019/020 N. vj p I ell ilia MMIMINIONIMIN 2©11111MINISI©©NIN W U Q ILL O Lr- O d isJ O d — —1— rim—U-J—LUIU%WI-W/ 1>:7C auDODC1113 P. UU3 05/04/2004 TUE 16:05 FAX 3058527113 0020/020 vAmrr u==l�+a�aq SIR x o i- 7 9 m w Q O J Ld1 CL O w 05/27/2004 THU 15:10 FAX 3058527113 01/001 IN THE CIRCUIT COURT OF THE 16rH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA UPPER KEYS CIVIL DIVISION —JUDGE GARCIA MONROE COUNTY, FLORIDA, Plaintiff, vs. CASE NO. CAP-96-260 KEY LARGO OCEAN RESORTS CO-OP, INC., Defendant. ORDER CLARIFYING INJUNCTION This matter, having come before the Court on the ore tenus emergency motion to clarify the Court's Injunction, and the Court, having heard the argument of counsel via telephone including the objections posed by counsel for the Defendant Key Largo Ocean Resorts Co-op, Inc., ("KLOR") hereby clarifies its previous orders and injunctions in this matter to state as follows: 1. The Court's previous orders permitting limited residential occupancy of KLOR does not extend to the use of the facilities including the marina by the other member/shareholders of KLOR. 2. The life and fire safety issues need to be addressed through re- development. 3. Permitting use of the marina and other facilities by shareholders other than those previously granted permission to temporarily reside at the park is not consistent with the Court's intention in permitting limited use of the facilities. 4. This order does not limit the permission previously granted to these residents in Exhibit B to reside on the property. DONE and ORDERED this 28"' da} Key, Florida. Cc: Kent Harrison Robins, Esq. Robert B. Shillinger, Esq_ J(Z__(�� d�A Capt. Louis Caputo, MCSO IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MONROE COUNTY CASE NO. 96-260-CA-P MONROE COUNTY, FLORIDA Plaintiff, W KEY LARGO OCEAN RESORTS CO-OP, INC., ORDER MODIFYING FEBRUARY 25 2010 TEMPORARY INJUNCTION THIS CAUSE, having come upon to be heard on June 9, 2010 on Key Largo Ocean Resorts Co-op, Inc.'s ("KLOR") Third Motion to Modify Temporary Injunction and Request to Accelerate Compliance as well as the pursuant to the Notice of Status Conference This Court, having heard the argument of counsel for the parties, and being otherwise fully advised in the premises, modifies the February 25, 2010, January 15, 2010, December 9, 2009 and December 22, 2009 Temporary Injunctions as follows: 1. The current full-time residents of KLOR, specified in the updated Exhibit B (6/4/10), which exhibit is made a part of this Injunction, (other than those subject to the notice to vacate therein), shall be allowed to continue their habitation and occupancy through 6.00 p.m. on July 31, 2010. KLOR shall immediately cause the filing of all actions necessary to evict any non -shareholder residents specified as having received a notice to vacate. No further motions for modification of this injunction to allow habitation shall be entertained by this Court until substantially all existing illegal structures are demolished. 2. The property owned by KLOR, located at 94825 Overseas Highway, Key Largo, Florida, which is the subject of this litigation shall be closed to ALL habitation by 6:00 p.m. on CASE NO.96-260-CA-P July 31, 2010. KLOR shareholders and tenants are to remove any personal property by that date and time. Any personal property remaining after that date should be deemed abandoned. The Board of Directors of KLOR shall be authorized to provide rules for the vacating of the premises and the removal of all property by July 31, 2010, 3. The KLOR Board shall accelerate all phases of the demolition plan and shall take all steps necessary to complete demolition of all illegal structures on the KLOR premises by December 31, 2010. Should a Shareholder of KLOR fail to timely provide a consent to demolish to KLOR, KLOR shall promptly apply to this Court for declaratory and injunctive relief to authorize KLOR to demolish all illegal structures, trailers and slabs on the premises of KLOR. 4. KLOR shareholders, officers, directors, employees, and contractors are prohibited from entering the KLOR property after July 31, 2010 except as follows: a. The office shall be permitted to remain open during normal business hours of 8 am to 6 pm for the purpose of managing the affairs of the corporation and the property including, but not limited to, complying with the Development Agreement; KLOR's employees, contractors, and Board Members may enter to park to manage the property and implement the Development Agreement. b. Upon satisfactory inspection of the facility by the Monroe County Fire Marshal, KLOR members will be permitted to enter property to attend officially noticed meetings of the corporation at the club house located on the property. c. KLOR is permitted to retain security guards authorized to patrol the premises and ensure compliance with this Order. 2 IVV, -4go] 'UWe,I1a IWA d. With the written authorization of the KLOR Board, design professionals and their employees as well as contractors and their employees may enter the premises to comply with the Development Agreement. 5. KLOR must maintain a log detailing the name, status, purpose of visit, and time for each and every person entering and exiting the park after July 31, 2010. 6. To better ensure compliance with this order and to conserve the resources of the corporation and the community, the utilities to the park shall be limited to those necessary to operate the management office. Additionally, the utilities to the club house may only be turned on for an hour before any officially noticed meeting of the corporation and must be turned off at the conclusion of that meeting. 7. Monroe County officials shall be afforded access to the park at all tunes to verify compliance with this order. S. The Court's previous orders are still in effect to the extent they do not conflict with this Amended Temporary Injunction. 9. The Monroe County Sheriff's Office and all law enforcement officers in the state of Florida are authorized to enforce this order. DONE AND ORDERED in Chambers in Plantation Key, Monroe County Florida this 2:�day of June, 2010. V. Counsel of record L Judge 3 KEY LARGO OCEAN RESORTS, CO-OP, INC. UPDATED EXHIBIT B @ 6/4/10 LOT SHAREHOLDER OWNERS 8 Milanes Elizabeth 9 Maza, Clemente 26 De Leon Rolando & Hilda 41 Arcia Andres 42 Felix & Miriam Perez 49 Juana, Michael & William de la Morena 56 M Blanca & M Goyanes 57 Amparo Vidal 71 Roquet Rosa 73 Gonzalez Eva 8o Marquez Apoionio 86 Filpes Jorge 87 Ramos Lourdes & Garcia 89 Gomez De Molina Teodoro 93 Capdevilla Osvaldo & Migna 125 Lopez Julio & Ofelia 132 Pire Raul & Reinalda 133 Medrano Raul & Georgina 140 Dora Sanchez 149 Cuenca Carlos & Georgina 153 Valdez Orlando & MeigIa 170 Garcia, Leo 171 Delgado Cosme 198 Gonzalez Isabel & Ibrahim 200 Aburto, Ramiro 214 Gonzalez Victor & Onidia 221 dlerez Hugo & Manuel 232 Gcimez Salvador & Maria 252 Hernandez Celso & Noelia 271 Madrinan Luis & Miriam s e :Tili�lxt�il:�l:� 69 Lopez-Recio Orestes & Magdalena 75 Barrett Margarita & Scott „ 76 Pino Fidel & Gicela 263 Alvarez Juan & Wanda X X X X X X X X X X X X x X X X X x X X X X RENTERS NOTICE TO VACATE NOTICE TO VACATE NOTICE TO VACATE NOTICE TO VACATE NOTICE TO VACATE NOTICE TO VACATE NOTICE TO VACATE NOTICE TO VACATE KEY LARGO OCEAN RESORTS CO-OP, INC. COMPLIANCE REPORT IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MONROE COUNTY CASE NO. 96-260-CA-P MONROE COUNTY, FLORIDA, Plaintiff, V. KEY LARGO OCEAN RESORTS CO-OP, INC., Defendant, November 15, 2010 KENT HARRISON ROBBINS Attorney for KLOR 1224 Washington Avenue Miami Beach, Florida 33139 Telephone: (305) 532-0500 Facsimile: (305) 531-0150 Email: khrobbins@kentharrisonrobbins.com Florida Bar No. 275484 11 / 1711 o L.4 INDEX I. KLOR Compliance Timeline II. KLOR Graph Showing Shareholders Consent Forms Received III. KLOR Map Showing Shareholders Consent Forms Received IV. KLOR Shareholder Consent Forms Pending V. KLOR Demolition Graph VI. KLOR Payments to Monroe County in 2010 Key Largo Ocean Resorts Co -Op, Inc.'s COMPLIANCE TIMELINE Bringing Park into Compliance with Code and Development Agreement by Demolition of All Illegal Structures on Shareholders' Lots 1. December 21, 2009: New Board of Directors seated by Administrative Order. 2. January 15, 2010: Court orders that the park be closed and only accessed by full time residents. 3. February 2010: Phased compliance proposal formulated and presented to Court and BOCC. 4. March 2010: Safety measures are implemented for full time residents. Work on phased compliance implemented. 5. April 7, 2010: Demolition consent forms mailed to shareholders. 6. May 2010: Court accepts phased compliance proposal. 7. May 5, 2010: Revised consent forms, specifying costs of demolition, are mailed to the shareholders. 8. June 5, 2010: Shareholders overwhelmingly approve modified equitable site plan. 9. June 9. 2010: Court orders that the park be closed by July 31, 2010 and orders accelerated demolition schedule to be completed by December 31, 2010. 10.July 31, 2010: Park vacated. 11. August 2010: Permits obtained by shareholders for removal/demolition. 12. _September 2010: Shareholder demolition extended, total demolition completed — 95. 13.September 1, 2010: Five day notices regarding consent forms are mailed to shareholders. 14.October 4. 1010: DEP Consent Order signed to allow demolition of Waste Water Treatment Plant. 15. October 15, 2010: Asbestos survey completed. 16.October 21, 2010: Revised Plans incorporating shareholder approved documents submitted to County 17.October 27, 2010: Revised Letter of Understanding issued by County. 18. November 10, 2010: Demolition permit obtained for remaining structures and slabs (not including structures of non -consenting shareholders) 19. November 15, 2010: Total of 112 structures demolished/removed to date. Demolition - in -progress to complete demolition of 269 structures. 20. November 25, 2010: Phase I of Park -wide Demolition to be completed. 21. November 29, 2010: In cooperation with County, complaints to be filed by KLOR seeking injunction against non -consenting shareholders. 22. December 15, 2010: Phase II of Park -Wide Demolition to be completed. 23. December 15, 2010: Begin demolition of Waste Water Treatment Plant. 24. December 31, 2010: Phase III: Waste Water Treatment Plant Demolition to be completed 25.December 31, 2010: Demolition of all structures on 269 lots, public bathrooms and showers, and Waste Water Treatment Plant to be completed. Note: Property of 12 non -consenting shareholders are the only illegal structures that may not be demolished by December 31, 2010. An action for injunction compelling demolition will be pending. 40% 35% 30% 25% 20% 15% 10% 5% 0% KEY LARGO OCEAN RESORTS, CO-OP, INC. CONSENT FORMS RECEIVED FROM SHAREHOLDERS FROM MAY, 2010 THROUGH OCTOBER, 2010 0 1 2 3 4 5 6 Total Consent Forms Received per Month of Total Forms Received to Date: 1- May, 2010 2 -June, 2010 3 -July, 2010 4 - August, 2010 5 - September, 2010 6 - October, 2010 / 72 Consents = 27% / 46 Consents = 18% / 96 Consents = 35% / 39 Consents = 15% / 13 Consents = 4% / 2 Consents = 1% TOTAL RECEIVED: _2fi$ Consents ■ Seriesl W - o F w � O w � o O O z Pz z w rn z Z ZW o N U z r O O U Z -sR \ ! 1 t 1 I o q b U 1 0 I I I � I m D � o owl I Q LOT # KEY LARGO OCEAN RESORTS, CO-OP, INC. LIST OF CONSENT FORMS PENDING 11/15/10 NAME & ADDRESS 084 Antonio Fernandez & Aleida Fernandez 3241 NW 17 Street Miami, FL 33125 106 Antonio Fernandez & Aleida Fernandez 3241 NW 17 Street Miami, FL 33125 169 Julie Lopez & Joe Lopez 7237 SW 23 Street Miami, FL 33155 177 Orlando Acosta Mirta Acosta Man Cheong Yeung Dick Yin Yeung Yuk Sum Yeung & Grace Luk 16116 NW 14 Court Pembroke Pines, FL 33028 185 Hilda Gonzalez & Lilian Gonzalez Pujol 390 Circle Drive Hialeah, FL 33010 196 Cindy Sue Gregg 1131 W. Barnes Road Rosedale, IN 47874 202 Ramon Y. Alvarez & Maria M. Alvarez 5925 NW 40 Street Virginia Gardens, FL 33166 220 Daniel Masso NOTATIONS Lien Filed. Foreclosure to be filed. Lien Filed. Foreclosure to be filed. Pending Sale of Lot Lien Filed. Foreclosure to be filed. KEY LARGO OCEAN RESORTS, CO-OP, INC. LIST OF CONSENT FORMS PENDING 11/15/10 LOT # NAME & ADDRESS NOTATIONS Mercedes Masso 17940 SW 83 Avenue Miami, FL 33157 259 Eduardo A. Calil Isis Calil Amaro 3850 Bird Road, Ste # 502 Miami, FL 33146 266 Melinda Torres & Nelson Torres 3731 N. Country Club Drive Bldg 1- Apt. 122 Aventura, FL 33180 278 Pedro Rodriguez Brenda Olivera 3500 SW 146 Terrace Miramar, FL 33027 279 Emigdio Gonzalez Olga Quiriello 14807 SW 67 Lane Miami, FL 33193 : I i , ... . , .. ._..... _. . . .. . . . . ... . . .. „ _.. � W ' I 4P !fit tYtr9M __ rr Al- o av0v00v00l��00000oP o�OO o ��sysysyso'!sysv���9 ��� e �IMMEoa.MIR -„�� �,o aaaaaah���aaav � - s�aaaav�saaaaa►• �e�sOsO�OSOSOsvevs0� 01 - a�o a o io d 40a`►� o o - o Key Largo Ocean Resorts Co -Op, Inc.'s Payments to Monroe County in 2010 Taxes Paid to County Tax Assessor (2009 Taxes) Demolition Fees Paid To Monroe County Building Dept Pre -application conference for Plans Review Application for Plans Modification $145,743.14 $ 24,640.00 $ 689.00 $ 1,768.00 TOTAL PAYMENTS TO MONROE COUNTY $172,840.14