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Case Nos. APP-94-106 & APP-95-001STATE OF FLORIDA FLORIDA LAND AND WATER ADJUDICATORY DIVISION DEPARTMENT OF COMMUNITY AFFAIRS, Petitioners, VS. BRIAN SULLIVAN, Owner, and SEAMARK CONSTRUCTION COMPANY, INC., General Contractor; and MONROE COUNTY, a political subdivision of the State of Florida, Respondent. CASE NO. APP-94-106 APP-95-001 SETTLEMENT AGREEMENT T CD C7 -;; This Agreement is entered into by and between BRIAN SULLIVAN, Owner/Developer; MONROE COUNTY, Florida, a political subdivision of the State of Florida; and the DEPARTMENT OF COMMUNITY AFFAIRS ("the Department" or "DCA"). W I T N E S S E T H: WHEREAS, BRIAN SULLIVAN is the owner of real property known as lots 8, 9, 45, 46, 47 and 48, Block 4, Cutthroat Harbour Estates, Cudj oe Key ( "the subject property") within the Florida Keys Area of Critical State Concern; and WHEREAS, on October 5 and November 22, 1994, respectively, Monroe County issued building permits nos. 9410000776, 9410000775, 9410000777 authorizing development of single family residences on the subject properties; and agreement/sullivan.agm 10/20/95 1 WHEREAS, on December 27, 1994 and January 6, 1995, the Department timely appealed the permits to the Florida Land and Water Adjudicatory Commission; and WHEREAS, the Department is the state land planning agency with the duty and responsibility of administering and enforcing the provisions of Chapter 380, Florida Statutes, the Florida Environmental Land and Water Management Act of 1972 ("The Act"), and the rules and regulations promulgated thereunder, including the Monroe County comprehensive plan and land development regulations in the Florida Keys Area of Critical State Concern; and WHEREAS, pursuant to Section 380.032(3), Florida Statutes, the Department is authorized to enter into agreements with any landowner, developer, or governmental agency as may be necessary to effectuate the provisions and purposes of The Act or any rules promulgated thereunder; and WHEREAS, BRIAN SULLIVAN will acquire certain real property that is not the subject of this appeal, located in the Lower Keys of Monroe County, Florida, which is less environmentally sensitive and more suitable for single family residential development than the subject property, and WHEREAS, BRIAN SULLIVAN received an award under the County's Dwelling Unit Allocation Ordinance ("ROGO") authorizing construction of three (3) single family homes, which received positive points for lot aggregation, low volume plumbing, exceeding the base flood elevation by one foot, and ability to sustain a wind load of greater than 130 mph, and agreement/sullivan.agm 10/20/95 2 WHEREAS, Monroe County has applied for and received funding from State of Florida, Department of Community Affairs, Florida Communities Trust, to assist the County in acquisition efforts to purchase environmentally sensitive lands unsuitable for development, and WHEREAS, Monroe County, in coordination with the Monroe County Land Authority, has elected to purchase the lots that are the subject of this appeal for conservation purposes, at a purchase price of $18,393.00 which represents the actual investment by the owner, and WHEREAS, the parties wish to avoid the expense, delay and uncertainty of litigation and resolve the above -styled development order appeal and related issues under the terms and conditions set forth herein, and it is in their best interests to do so; and WHEREAS, the Department finds that this agreement is in the best interests of the state and is necessary to effectuate the provisions and purposes of Chapter 380, Florida Statutes. NOW, THEREFORE, in consideration of the mutual promises and undertakings contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Recitals. The above recitals are incorporated herein and form a material part of this agreement. 2. The parties agree that the subject properties include environmentally sensitive lands that are not desireable for development of single family homes. agreement/sullivan.agm 12/19/95 3 3. Pursuant to this Settlement Agreement, the parties agree that the subject single family homes shall and must be permitted in the Lower Keys at other sites owned by Mr. Sullivan that are comprised of disturbed uplands that are less environmentally sensitive and more suitable for single family development, are each served by paved roads, electric lines and FKAA water lines (all existing on the effective date of this agreement) and are in a recorded, platted subdivision designated "IS" on the County's Land Use District Map, not to include any sites on Big Pine Key. 4. Under the unique circumstances of this case, Mr. Sullivan shall be allowed to transfer his "ROGO Award" received under the County's Dwelling Unit Allocation Ordinance (permitting development of the subject single family houses) from the subject property to the less environmentally sensitive site, identified in paragraph 3, above, within two (2) years of the effective date of this agreement. Mr. Sullivan will not be required to submit a new application for a new ROGO award in order to build the same houses at the new site. The County will process a refund request for all application, permitting and impact fees previously paid and applicable fees will be assessed at the new locations when permits are issued. 5. Mr. Sullivan may revise the subject site plans as necessary to accommodate construction of the single family homes at the new sites, but in no event shall the subject site plans be revised or altered with respect to the structural design components (excluding lot aggregation) that contributed to or caused assignment of positive ROGO points. Mr. Sullivan shall obtain agreement/sullivan.agm 12/19/95 4 a building permit for single family development on the new site within two (2) years of the effective date of this Agreement. 6. The County shall utilize funds received from State of Florida, Department of Community Affairs, Florida Communities Trust for the purpose of acquiring land in Monroe County rendered undesirable for development by operation of the Dwelling Unit Allocation Ordinance, to purchase the subject property. Said purchase shall occur no later than six (6) months from the effective date of this Agreement. 7. Further Proceedings. Within five (5) working days after an amended development order consistent with this agreement is rendered to the Department, the Department shall file a notice of voluntary dismissal of this appeal and seek a final order from the Florida Land and Water Adjudicatory Commission concluding this appeal proceeding. By their signatures hereon, the parties to this agreement join in any request to place this matter in abeyance pending issuance of an amended development order and the filing of a notice of voluntary dismissal, and join in any request for entry of a final order consistent with this agreement. 8. Caveat. The parties acknowledge their disagreement over whether the subject development order is consistent with the provisions of Chapter 380, Florida Statutes, relating to areas of critical state concern and the administrative rules promulgated thereunder and have entered into this settlement agreement solely in the spirit of compromise. By their signatures hereon, no party shall be deemed to have acquiesced in the position of another party agreement/sullivan.agm 10/24/95 5 with regard to the proper interpretation and implementation of statutory and regulatory provisions relating to areas of critical state concern. This agreement shall not be given precedential effect with regard to any other development orders for other projects in an area of critical state concern. 9. Retention of Right to Final Hearing. Should any party fail to implement this agreement within the time periods prescribed hereunder, or if this agreement is based upon materially false or inaccurate information, any party shall be entitled to withdraw from this agreement and seek.a final hearing in this case by motion filed with the Florida Land and Water Adjudicatory Commission. 10. Certification of Understanding and Voluntary Execution; Release; Costs and Attorney's Fees. The parties and/or their authorized representatives each certify that they have read and understand the terms and conditions of this agreement and that it is voluntarily executed for the purposes of making a full and final settlement of any and all claims, disputes or otherwise, which could have been asserted against the other party as a result of the appeal of the subject development order. The parties hereto release each other party from any and all claims of whatever nature which arise or may arise out of the appeal of building permit nos. 9410000776, 9410000775, 9410000777. Each party shall bear its own costs and attorney's fees incurred in this proceeding. 11. Drafting of Agreement. The parties shall be deemed to have participated generally in the drafting of this agreement. Accordingly, this agreement shall be construed neutrally without agreement/sullivan.agm 10/20/95 6 regard to the party or parties responsible for its preparation, and any terms, conditions, uncertainty, or ambiguity shall 'not be construed against any of the parties as a result of the drafting of this agreement. 12. Scope of Authority_. This Agreement affects the rights and obligations of the parties under the provisions of Chapter 380, Florida Statutes, relating to areas of critical state concern. It is not intended to influence or determine the authority or decisions of any other state or local government or agency in issuance of any other permits or approvals that might be required by state law or local ordinance for any development authorized by this Agreement. 13. Duplicate Originals. This Agreement may be executed in any number of originals, all of which evidence one agreement, and only one of which need be produced for any purpose. 14. Binding Effect; Recordation of Agreement. This Agreement shall be binding on the parties, their heirs, successors and assigns. Within ten (10) days after entry of a final order by the Florida Land and Water Adjudicatory Commission concluding this appeal, the Owner shall record this Agreement in the Public Records of Monroe County, Florida, and shall promptly provide proof of recordation to Monroe County find the Department, including the official records book and page where this Agreement is recorded. Proof of recordation shall be furnished by hand delivery or U.S. Mail, postage prepaid to the County by directing same to Antonia Gerli, Acting Planning Director, 2798 Overseas Highway, Marathon, agreement/sullivan.agm 10/20/95 7 Florida 33050, and to the Department by directing same to Mike McDaniel, Growth Management Administrator, Region 2, Division of Resource Planning and Management, Department of Community Affairs, 2740 Centerview Drive, Tallahassee, FL 32399-2100, or to such other person or address as the County or Department may hereafter direct in writing. Communications to the Owner/Developer regarding this agreement and the development authorized thereby shall be directed to Mr. Brian Sullivan, Post Office Box 421063, Summerland Key, Florida 33042. 15. Entirety of Agreement/Amendment. This Agreement constitutes the entire agreement of the parties. This Agreement may be modified or amended only by a separate writing signed by all parties hereto. 16. Effective Date of Agreement. The effective date of this Agreement is the date the last party signs this agreement. IN WITNESS WHEREOF, the parties, by their duly authorized undersigned representatives, have executed this Agreement on the dates and year below written. agreement/sullivan.agm 10/20/95 8 v 13AJ5� Date STATE OF FLORIDA COUNTY OF LEON DEPARTMENT OF COMMUNITY AFFAIRS, An Agency of the State of Florida 'C .�:(/l, by ; G�tPa.�') Opt Charles G. Pattison Director, Division of Resource Planning and Management This instrument was acknowledged before me this /37'A- day of ✓ r , 199k, by Charles Pattison, as Director, Division of Resource P10anning and Management, Department of Community Affairs, who is personally known to me and who did not take an oath. "t&ry Public Name (typed, printed or stamped) c� 36 16 /S Commission Number My commission expires: agreement/sullivan.agm 10/20/95 9 - cL•i/� CSX f W ess r Witness STATE OF FLORIDA COUNTY OF MONROE BRIAN SULLIVAN, Owner Date: The fore in instrument was acknowledged before me this day of r , 1995, by BRIAN SULLIVAN, who is ersonal y m r has produced as i en 1 on and did (did not) take an oath. L "tiSS NofAIre ! ' _ tR. �)M ,Ptl�l Gr n{� �Q `:BiV,CB G�UJSJV agreement/sullivan.agm 10/20/95 10 Notary ublicic / Name (typ#d, printed or stamped) Commission Number My Commission Expires: 6 MONROE COUNTY APPNO 'DAS : J FM By:Ma LWALSU =P"'. Monroe Coun Board of nCounty Commissioners Date: STATE OF FLORIDA COUNTY OF MONROE A The fore o'nc in was acknowlpd ed_befoxe me t$is day of , 199N4 by who is e 1 kn wn o or who has producey _ as identification, and who did (did not) take an oath. dw Notary Pu is agreement/sullivan.agm 10/20/95 11 RuWh -An n ?av ri me n Name (typed, printed or stamped) CC 50(n 3,a5 Commission Number My commission expires: 1430199 C f pL Rl_iTHANN JANTZ�N °�� My Corrun Exp. 12/30/99 LI > Bonded By Service Ins LIC No. CC506335 OT Pcrt000lly Known ouc I. D.