Item S02
BOARD OF COUNTY COMMISSIONERS
Agenda Item Summary
Meeting Date
4/21/04
Division
County Attorney
AGENDA ITEM WORDING
Approval of settlement agreement in Robert L. Clay, et al v. Monroe County, 2004 CA 05 M.
ITEM BACKGROUND
Robert Clay, John & Li Chiung Moyant, Richard & Charlene Marot, Dietmar Menck & Gudrun Shulz-
Menck filed a two count action against the County seeking 1) a writ of mandamus to compel the
County to issue building permits for 5 lots on Big Pine Key and 2) damages for inverse
condemnation. The Plaintiffs have proposed a settlement wherein the County would issue the
permits in exchange for a waiver of their respective claims for damages.
PREVIOUS RELEVANT BOCC ACTION
None.
CONTRACT I AGREEMENT CHANGES
None.
STAFF RECOMMENDATIONS
Approval.
TOTAL COST
BUDGETED Yes No
COST TO COUNTY
SOURCE OF FUNDS
APPROVED BY:
County Attorney _ OMB/Purchasing 0 Risk Management 0
DIVISION DIRECTOR APPROVAL~ )V~7
JOHN R.
DOCUMENTATION:
Included 0
~
Not Required 0
AGENDA ITEM #
s~
IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
ROBERT LEE CLAY, JOHN K.
MOYANT and LI CHIUNG MOYANT,
and RICHARD N. MAROT1 and CHARLENE MAROT,
and DIETMAR MENCK AND GUDRUN SHULZ-MENCK
Petitioners,
vs.
CASE NO.: 04-CA-05-M
MONROE COUNTY, FLORIDA,
a political subdivision of the
State of Florida,
Respondent.
I
SETTLEMENT AGREEMENT
COMES NOW the Petitioners, ROBERT LEE CLAY: JOHN K. MOYANT and LI
.
CHIUNG MOVANT; RICHARD N. MAROT and CHARLENE MAROT: DIETMAR
MENCK and GUDRUN SHULZ-MENCK; and the Respondent, MONROE COUNTY, a
political subdMsion of the State of Florida, and file this their Settlement Agreement and
state as follows:
WHEREAS each of the Petitioners are owners of a residential lot in Big Pine
Key, Florida; and
WHEREAS each of the Petitioners is desirous of building a single family home
on their Jot; and
WHEREAS each of the Petitioners has applied for and paid for, and received
approval for the issuance of a permit for a single family home on their lot in Big Pine
Key; and
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WHEREAS as a result of concurrency standards imposed by the state of
Florida, the Respondent's concems over traffic generation that may be caused by the
construction of these homes resulted in the Respondenfs decision to not issue the
Petitioners' permits; and
WHEREAS the Respondent initiated an administrative proceeding under the
Beneficial Rights proceedings of Section 9.5-171 of the Monroe County Land
Development Regulations in regards to the Petitioners' permits; and
WHEREAS, the BenefICial Use hearing officer issued a proposed determination
which found that the Petitioners" impact from building a single family home on their
residential lots in Big Pine Key would have de minimU$ effect on the concurrency
requirements that had been imposed on Monroe County. and recommended that the
permits be issued to the Petitioners; and
WHEREAS the Respondent, by actions of the Board of County Commissioners,
accepted the finding of the Special Master's Beneficial Use determination by
Resolution #263-2002, dated June 19,2002; and
WHEREAS the Petitioners have initiated these proceedings to obtain the permit
that is the subject of the Beneficial Rights detennination and Resolution #263-2002;
and
WHEREAS the parties desire to amicably resolve all issues between them
relating to this litigation; and
WHEREAS the parties further agree that it is in the best interest of the parties to
tenninate the litigation, to allow the Petitioners to build their single family homes and to
avoid further expense and delay that may be attendant upon this litigation.
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NOW THEREFORE in consideration of the mutual covenants and conditions
contained herein and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties agree to settle the instant
proceedings as follows:
1. Each of the Petitioners has applied for. paid for, and received approval for
the construction of a single family home on their respective lots in Big
Pine Key, Monroe County, Florida, and such approval is currently in
effect.
2. The Monroe County Building Department shall issue to Petitioner Robert
Lee Clay a building permit to construct a single family home on Lot 391
Doctors Arm Subdivision. 3rd Addition, Section C, Big Pine Key, Florida.
3. The Monroe County Building Department shall issue to Petitioners John
K. Moyant and Li Chiung Moyant a building pennit to construct a single
family home on Lot 40 and 411 Doctors Arm Subdivision. 3M Addition,
Section C. Big Pine Key, Florida.
4. The Monroe County Building Department shall issue to Petitioners
Richard N. Maret and Char1ene Marot a building pennit to construct a
single family home on Lot 9, Block 12, Eden Pines Subdivision. 2nd
Addition, Big Pine Key, Florida.
5. The Monroe County Building Department shall issue to Petitioners
I Petitioner Moyant, owner of Lot 41, obtained Lot 39 from the COUnty in return for the
dedication of a more environmentally sensitive tract of land conveyed to the County by him.
Petitioners Clay and Moyant mend to swap Clay'S Lot 40 With Movant's Lot 39. Moyant then will
build his single family home On Lots 40 and 41, and Clay will build on Lot 39. This land swap was
approved by BOCC Resolution 179-2003 enacted on February 28, 2004
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Dietmar Menck and Gudrun Shulz-Menck a building permit to construct a
single family home on Lots 4 and 5, Block 24, Eden Pines Subdivision. 3rd
Addition, Big Pine Key, Florida.
6. Upon the issuance of the permits to the Petitioners. the Petitioners shall
have all the rights, responsibilities and duties that the Monroe County
Code and Land Development Regulations grant to builders of single
family homes in Monroe County, Florida.
7. Upon the conclusion of the process for the issuance of the above-
referenced permits and the expiration of the period for the Department of
Community Affairs to review the Petitioners' permits, the Petitioners shall
file a notice of voluntary dismissal with prejudice of the above-styled
action.
8. By entering into this agreement, the parties agree to waive and release
any claims that were raised or could have been raised in this litigation.
After approval of this agreement by the Court. all parties shall exchange
mutual releases in a format customarily used in this County. All parties
acknowledge there is other litigation, presently on appeal between some
of these parties and this Agreement is not intended, nor shall it be
construed to, waive any rights in any other pending litigation or appeal.
9. Each party shall bear its own attorney's fees and costs in connection with
this litigation. In the event it becomes necessary for any party to this
litigation to commence legal proceedings to enforce the tenns of this
agreement, the prevailing party shall be entitled to reasonable attorney's
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fees and costs in connection with such action.
10. By entering into this Settlement Agreement, the parties do not
acknowledge the merits or lack of merits of these proceedings. Rather,
the parties have entered into this agreement for the purpose of avoiding
further expense and delay inherent in litigation of this nature.
11. The Court shall retain jurisdiction over the parties to the subject matter of
these proceedings, and shall enter any orders or judgments which are
just, lawful, and appropriate under the circumstances.
-~ ub~t
ifobert B. Shillinger, Esq. ~ ( at )
Assistant County Attomey
P.O. Box 1026
Key West, FL 33041-1026
(305) 292-3470
Attomey for the Respondent
FBN: 058262
Franklin D. Greenman, Esq. (Date)
GREENMAN & MANZ
5800 Overseas Highway, Suite 40
Marathon, FL 33050
(305) 743.2351
Attorney for the Petitioners
FBN: 290815
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IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY. FLORIDA
ROBERT LEE CLAY, JOHN K.
MOVANT and LI CHIUNG MOVANT.
and RICHARD N. MAROT, and CHARLENE MAROT.
and OIETMAR MENCK AND GUDRUN SHULZ-MENCK
Petitioners,
vs.
CASE NO.: 04-CA-05-M
MONROE COUNTY, FLORIDA,
a political subdivision of the
State of Florida,
Respondent.
I
ORDER APPROVING SETTLEMENT AGREEMENT
This matter, having come before the Court on the Settlement Agreement
submitted by the parties and the Circuit Court of the 16t1 Judicial Circuit. having
reviewed the Settlement Agreement and being fully satisfied with its provisions, hereby
approves the Settlement Agreement as submitted by the parties and therefore it is:
ORDERED and ADJUDGED that this matter shall be disposed of pursuant to the
terms set forth in the Settlement Agreement and it is further
ORDERED and ADJUDGED that this Court shall retain jurisdiction to enforce
compliance with the terms set forth in the Settlement Agreement.
DONE and ORDERED this _ day of
West. Florida.
,2004. in chambers. Key
Mark Jones. Circuit Judge
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GREENMAN BE MANZ
5800 Ovemeas Highway, SuIte 40
Mamthon, R. 33050
305-743-2351
FlOC aos.. 743-6523
FDGreenman(ii)Be1JsnuIh.net
RECEIVED
APR 2 1 2004
fAX TRANsMl~lm'l
MONROE COUNTY ATTORNEY
To: Ridmrd Collins, Esq. Fax #: 295-5105
Date: April 21, 2004 Pages: 11, including this cover sheet.
From: Franklin D. Greemnau., Esq.
Subject: Moymt, Clay, Marot, et al Settlement with the County
Attached is the signed Settlement Agreement, as provided last night, and approved by
my clients. Mr. Moyant has requested that the footnote on page 3 be changed to more
accurately reflect his land swap. He requests the following language for the footnote:
It Petitioner Moyant, owner of Lot 41, obtaioed Lot 39 from the County in return for the dedication
ola more environmentally sensitive tract: of land conveyed to the County by him. Petitioners Clay
and Moyant intend to swap Clay)s Lot 40 with Moyant's Lot 39. Moyant then will build his siuglc:
family home on Lots 40 aud 41, aDd Clay will build on Lot 39. This land. .-wap was approved by
BOCC h$o.lution 179~2003 enacted on Fe\mwy 28, 2004.
Other than that minor change, I beUeve we have agreement Please caJt me if the
Settlement is accepted or otherwise by the BOCC. If there is a fonn for the releases,
please provide them, or I will draft a generic one. Let me know. Thank you.
'1'he information c:orduined in this /acsfmjle tnJnsmI$sfon Is attorney..ptfrtf/eged and confldentictl. intended only for
the use of the Indlukiuol (Jf entIIy named above. If the I'f!Oder 0/ fhf$ rnasage is not the intended recipient, YOU
are hereby notified thot any dissemination, distribution, or oapy of this oommunloatlon is..raiy prohibfMd. If yoll
have receioed this mrnmunlcafian in em>r, please notify us immediately by telephone and return the oriainal
message to US at the aboue oddrus rJia the U.S. PotItlIl SmJi~.
PImse notJfy lIS lmmedi~Y i/~doaunent ls not proper/y rec:efued.
HARD COpy! ~fl JoffooJ by mall a Will [oIIow by OtJBmight mall
o Wlfl not follow
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411.0/2904 ,,)1. PI! ~I hIt 1._ ott;Gn er RolNtttt 5hllUnqu 'to: "43-6i~3 ""'..: aoz lit 007
IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT
IN AND FOR MONRoe COUNTY, FlORIDA
ROBERT LEE CLAY, JOHN K
MOYANT and II CHIUNG MOVANT,
and RICHARD N. MAROT, and CHARLENE MAROT,
and DIETMAR MENCK AND GUORUN SHULZ-MENCK
Petitioners,
YS.
CASE NO.: 04-CA-Q5..M
MONROE COUNTY, fLORIDA,
a political subdMsion of the
State of Florida,
Respondent.
,
SElTlEtAENT AGREEM.ENT
COMES NOW the Petitioners. ROBERT LEE CLAY; JOHN K. MOYANT and Ll
CHIUNG MOYANT; RICHARD N. MAROT and CHARLENE MAROT; DJETMAR MENCK
and GUDRUN SHULZ-MENCK; and the Respondent, MONROE COUNTY, a poJlticaj
subdivision of the Stale of Florida, and file this their Settlement Agreement and state as
follows;
WHEREAS each of the Petitioneta are owners of a residential lot in Big Pine Key,
Florida; and
WHEREAS each of the P&tItioners is deaimus tlf building it single family home on
their lot; 8nd
WHEREAS each of the Petitioners has applied for and paid for, and receNed
approval for the issuanc;e of a permit for a single famiry home on their lot in Big Pine Key,
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and
WHEREAs as a restllt of concurrency standards imposed by the state of Florida,
the Respondent's cot1Qeh15 O'iet' traffic generation that may be caused by the con&truction
of these homes resulted in the Respondenfs decision to not issue the Petitioners' permits;
and
WHEREAS the Respondent Initiated Ell administrative PfOCeedIng under the
BenefICial Rights prDCeedings of Section 9.5-171 of the Monroe County land Devefopment
Regulations in nlgarda to the Petitioners' permits; and
WHEREAS, the Beneficial Use heeling officer issued 8 proposed determination
which found that tfW! Petitioners' impact from building a single family home on Ihefr
residential Jots In Big Pine Key would have de nirIirtiiis effect on the concurrency
requirements that had been imposed on Monroe County, and recommended that the
permits be _lied to the Petitioners; and
WHEREAS the Respondent, by actions of the Board of County Commisstoners,
accepted the finding of the Special Master'& Beneficial Use determination by Resofutlon
1263-2002, dated June 19, 2Of12; and
WHEREAS the PeOOoners IvJve initiated these praceedings to obtain the pennit that
is the subject of Ihe Beneflcial Rights determination and ResolUtion t283-2002; and
WHEREAS the parties desire to BRlicably I'eGOfve all -ues between them ""ilting
to thielitigation; and
WHEREAS the parties further agree that it is in the best interest of the psrties to
terminate the lligatioo. to allow the Pettttoners to build their single family homes and to avoid
further ecpense and defay that may be attendant upon this litigation.
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NOW THEREFORE in consideration of the mutual covenants and conditions
contained herein and for other good and valuable consideration the receipt and suffICiency
of which are hereby acknowfedged, the parties agree to settle the instant proceecJings as
follaws:
1. Each of the Petitioners has applied for, paid for, IInd receJved iJPPnMIl for the
constnJction of a single family home on their respective Jots in Big Pine Key,
Monroe County, Florida, and such approval is currentfy in effect.
2. The Monroe County Buildill9 Dep;utmem shafl issue to PetiI~M Robert lee
Clay a bUIlding permit to construct a single famlfy home on Lot 39' Doctors
Ann Subdivision, 3rd Addition, Section C, Big Pine Key, FlorIda.
3. The Monroe County Building ~t shall issue to Petitioners John K.
Moyant aKJ U CNq Moyant 8 building permit to construct a single family
home on Lot 40 and 411 Doctors Arm Subdivision, ;td Addition, Section C,
Big Pine Key, Florida.
4. The Monroe County Building Department shall issue to Petitioners Richard N.
Marot a1d Charlene Marot a building permit to construct a sirUe famly home
on lot 9, Block 12. Eden Pines SubdMGion, ~ Addition, BIg Pine Key,
Florida.
5. The Monroe County Building Department shaH issue to PetItioners Dietmar
I Petitioner Moy.nt, owner of Lot 41, obtained lot 39 from the Ccuttv in ndtlm for Ihe
decflC8tion of a MCr8 envinmmenblffy ~ tract of IInd oonwryed to the Co~ by him.
Petitioners Clay and __Chen eI80ted a I8nd swap, where Moyant~ l.CJt 40rrom Clay. and
Mv,.nt ~ Lclt3910 Clay. PJ!oyantvtln Jx,ild his single family home onl.ots<<>ancl41._ OIly
wiU build an lat 39. This ~ swap.. IPPI'CMd by BOCC R8eoluaa" 1~2003 enact8d on
February 28, 2004
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Menck and GldUn Shutz.Menck 8 building permit to construct II single
family home on Lots 4- and 5, Block 24, Eden Pines Subdivisiont ~ Additiont
Big Pine Keyt F'IoIid..
6. Upon the issuance of the pennb to the Petitfoners, the Petitioners shalll1ave
all the rights, resPCJnSibiJitfes and duties that the Morwe County COde and
land Oewltopment Regulations grant to builders of single family homes in
Monroe County, Florida.
7. Upon the conclusion of the process for the issuance of the abov.referenced
permits und the expiration of the period for the Deperb.. of Community
Affairs to review the Petitioners' permits, the PetitIOners shall file a notic:e of
\4OIuntary dismissal with prejualCe of the above-styled action.
8. By entering into this agreement, the parties agree to waive and reIe8se any
claims that were raised or COUld have been raised in this litigation. After
approval of this agreement by the Court. all parties shalf udlange mutual
telea8es in a funnat cuslDmarily used in this County. All parties acIcnowledge
there is other Iitigstion. presently on appeal between some or these partiQs
and this Agreement is not intended, nor shall it be construed to, waive any
~ In Brff other pending litigation or appeal.
9. Each party shaH bear Is awn attomey's fees and costs in connection with this
litiQIItion. In the event it beoomes necessary for any party to this Utigation to
commenc.e fegaI proceedings to enmroe the terms of this Dgreement, the
prMfing party 8h8I1 be entilfed to reasonable attomey's fees and C08t8 in
connectior. With such action.
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10. By entering into this Setttement Agreement, the parties do not acknowtedge
the merits or Ia.ok of merits of these proceedings. Rather, the parties have
entered into this agreement for the purpose of avoiding further ecpense and
deIiIy inherent in Itigation of this nature.
11 - 1M Court aNt11 retain jurisdiction over the parties to the subject fnIItIBr of
these poceedings, and shan erier any orders or judgments which are just,
lawful. and appropriatl! under the circumstances.
~~
O. I Esq. /. ( )
GREENMAN & MANZ
5800 0vergeas Highway, Suite <40
Marathon, FL 33050
(305) 743-2351
Attorney for the Petiltoner8
FBN: 290815
Robert B. Shilinger, Esq. (Date)
Allidant County Attorney
P.O. Box 1026
Key West, Fl33041-1026
(305) 292-3470
Attorney for the Respondent
FBN:058262
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IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY. FLORIDA
ROBERT lEE CLAY, JOHN K.
MOVANT ancIlI CHIUNG MOVANT,
n RICHARD N. MAROT, and CHARLENE MAROT,
and DIETMAR MENCK AND GUDRUN SHULZ-MENCK
PetItioners,
VB.
CASE NO.: 04-CA-05+M
MONROE COUNTY, FLORIDA,
a poIIioaI aubdivision of the
state of Florida,
Respondent
I
ORDER APPROVING SETTLEMENT AGREEMENT
This maller, having come before the Court on the Settlement Agreement submitted
by the perties and the Circuit Court of the , ff Judicial Circuit. having reviewed the
SettIemet It Agreement and beilg fuly satisfied with Is provisions, hereby IppI'OV8S the
SettIeI...1t Agreement as ~ by the parties and therefore it is:
ORDERED and ADJUDGED that this matter shall be disposed of pursuant to the
terms set forth In the Settlement Agreement and it is further
ORDERED and ADJUDGED that this Court shall retain jurisdiCtion fx) etd'OfW
compliance with the terms set forth in the settlement Agreement.
DONE and ORDERED this _ day of
West, Florida.
. 2004, In ch.-nbers, Key
Mark Jones, Circuit JUdge
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