06/15/2011 AgreementDANNY L. KOLHA GE
CLERK OF THE CIRCUIT COURT
DATE: June 22, 2011
TO: Suzanne A. Hutton
County Attorney
ATTN: Kathy M. Peters
Executive Assistant
FROM: Pamela G. Hanc ck D.C.
At the June 15, 2011, Board of County Commissioner's meeting, the Board granted
approval and authorized execution of Item P3 Settlement Agreement in the matter of the
Department of Community Affairs v. Monroe County, Leo Winterling, et al, DOAH case
# 10-0547.
Enclosed is an original of the Settlement Agreement for your handling. Should you have
any questions, please feel free to contact this office.
cc: Finance
File,/
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT
OF COMMUNITY AFFAIRS,
Petitioner,
MONROE COUNTY AND LEO F.
WINTERLING AND JAMES A.
WINTERLING,
Respondent.
DOAH Case No. 10-0547DRI
APP-09-008
FLORIDA STATUTE 380.032(3)
SETTLEMENT AGREEMENT
THIS AGREEMENT is entered into between Respondents, MONROE COUNTY, LEO
F. WINTERLING and JAMES A. WINTERLING and Petitioner DEPARTMENT OF
COMMUNITY AFFAIRS, as a complete and final settlement of the specific claims raised in the
above -styled, Section 380.07, Florida Statutes appeal.
WHEREAS, the DEPARTMENT OF COMMUNITY AFFAIRS ( Department) is the
state land planning agency having the power and duty to exercise general supervision of the
administration and enforcement of Chapter 380, Florida Statutes, which includes provisions
related to Areas of Critical Concern; and
WHEREAS, MONROE COUNTY (County) is a local government located in the Florida
Keys Area of Critical State Concern with jurisdiction to issue development orders in Monroe
County, Florida. The County Planning Department's mailing address is 2789 Overseas Highway,
Suite 410, Marathon, Florida 33050; and
WHEREAS, Leo F. Winterling, James A. Winterling, George C. Winterling, Paul J.
Winterling, and Mark J. Winterling (Applicants) are the owners of a single family dwelling unit
on Big Pine Key and the developers of the subject property into a proposed Recreational Vehicle
(RV) park. The Applicants mailing address is 9626 Gerst Road, Perry Hall, Maryland 21128; and
WHEREAS, the subject property is located at 31875 Overseas Highway (US 1), Big Pine
Key and is legally described as Part of Government Lot 4, Section 25, Township 66 South, Range
29 East, Big Pine Key, and adjacent bay bottom Monroe County, Florida, as shown on Exhibit A,
having Real Estate Number 00110730.000000; and
WHEREAS, on April 15, 2009, the Applicants submitted to the Monroe County Planning
Department an application (Application) for an amendment to a Major Conditional Use Permit
in accordance with § 110-70 and § 130-94 of the Monroe County Code for the subject property;
and
WHEREAS, the Application proposed to recognize ten transient campground spaces to
be redeveloped as transient campground/recreational vehicle (RV) spaces, the maintenance of
one (1) existing permanent single-family dwelling unit, the construction of accessory
development (tiki hut, pool and bath houses), and the carrying out of associated site
improvements; and
WHEREAS, the subject property is approximately 3.48 acres of uplands and 1.89 acres of
submerged lands, the Future Land Use Map (FLUM) designation of the subject parcel is Residential
Low (RL), the Zoning is Suburban Residential (SR), and the Tier Designation is a Tier I Natural
Area; and
WHEREAS, on September 25, 2009, Monroe County Planning Commission Resolution No.
P33-09 adopting the Major Conditional Use Permit was signed by the Chair and rendered to the
Department on October 26, 2009; and
WHEREAS, the County's comprehensive plan is implemented, in part, by and through its
adopted land development regulations; and
WHEREAS, Section 380.05(16), Florida Statutes provides that no person shall undertake any
development within an area of critical state concern except in conformity with Chapter 380, Florida
Statutes; and
WHEREAS, the Monroe County Comprehensive Plan and the Livable CommuniKeys Plan
Master Plan for Big Pine Key and No Name Key designate the subject parcel as a Tier I property
located within the Key Deer Federal Preserve established for the protection of a threatened and
endangered species; and
WHEREAS, a controversy has arisen between the Department, the County and the
Applicants regarding whether the transient campground spaces were lawfully established and may
be redeveloped as RV spaces, whether the proposed RV use is allowed in the subject property's
Residential Low Future Land Use Map (FLUM) designation, whether development of the subject
property located within a Tier I category is severely restricted to protect the Key deer and its habitat,
and whether the development of the subject property is consistent with the Monroe County
Comprehensive Plan, Land Development Regulations and Section 380.0552(7), Florida Statutes,
Principles for Guiding Development; and
WHEREAS, on December 10, 2009, the Department filed a Petition for Appeal of a
Development Order with the State of Florida Land and Water Adjudicatory Commission which
forwarded the appeal to the Division of Administrative Hearings for assignment of an administrative
law judge and further proceedings; and
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WHEREAS, the Department has authority, pursuant to Section 380.032(3), Florida Statutes
(2010), to enter into agreements with any landowner, developer or governmental agency as may be
necessary to effectuate the provisions and purposes of Chapter 380 or any rules promulgated
thereunder; and
WHEREAS, the parties hereto wish to avoid the expense and delay of lengthy litigation and
to resolve the conflict by amending the Major Conditional Use Permit (Conditional Use), to the
new terms and conditions set forth herein, which terms and conditions effectuate the provisions and
purposes of the Act, and it is in their best interest to do so.
NOW THEREFORE, in consideration of the terms and conditions set forth hereafter and as
the full, complete and final settlement of all claims arising out of the controversy set forth above, the
parties hereto agree as follows:
Representations. The representations set forth above are incorporated herein and
are essential elements hereof.
2. Major Conditional Use Permit amendments. The following amendments to the
Major Conditional Use Permit are binding on the Winterling property located at 31875 Overseas
Highway (US 1), Big Pine Key, and run with the land pursuant to the Florida Statutes 380.032
Settlement Agreement.
a. One market rate dwelling unit (as defined in the Monroe County Code) per two upland
acres may be continued or newly constructed on the property if the existing unit is
demolished and rebuilt consistent with the Residential Low FLUM designation.
b. The subject property is located in a Key Deer Refuge area which has been designated by
Monroe County as a Tier I property. Ten (10) campground spaces are recognized as
transient Rate of Growth Ordinance (ROGO) Exemptions which may only be used for
future development if they are transferred off of the subject sending property for
development in a Tier II or Tier III property as a transient campground space, a RV space,
or a hotel unit in the following receiving areas — Big Pine Key subarea (not including No
Name Key), the City of Marathon, and the Village of Islamorada. The receiving areas are
subject to all of the following conditions: in Monroe County the units may only be
transferred to a parcel on Big Pine Key designated Tier II or Tier III; all receiving sites
must be served by a wastewater treatment facility that meets the advanced wastewater
treatment standards established by Section 403.086(10), Fla. Stat., or a Department of
Environmental Protection construction permit has been issued for the collection lines for
such a facility; transfers to the City of Marathon or the Village of Islamorada shall
additionally be limited to sites where no clearing of tropical hardwood hammock is
required and may not be transferred to any parcel designated as a VE zone or having turtle
beach protections or result in the filling of wetlands. With the exception of transfers
within the Big Pine Key subarea, transfers of ROGO exempt units may be effectuated
only upon adoption of a Resolution by the City of Marathon and the Village of
Islamorada pursuant to local regulations.
c. In the event Monroe County Comprehensive Plan and Land Use regulations or State of
Florida Area of Critical State Concern land use regulations are amended in the future, all
proposed changes to the subject property shall be effective only by an amendment to the
instant Florida Statutes 380.032 Settlement Agreement if approved by all parties. The
Florida Statutes 380.032 Settlement Agreement and any future amendments shall be
binding on the land in perpetuity and shall be recorded in the Monroe County public
records.
d. Monroe County shall recognize and document 10 transient campground spaces as
Transfer of ROGO Exemptions available to -the subject property that are not eligible for
redevelopment on the site. Monroe County and the Respondents Leo and James
Winterling shall track and record the transfer of the transient campground spaces to the
receiving property as required by the Monroe County Comprehensive Plan and Land
Development Regulations governing Transfer of ROGO Exemptions.
Amendment of the Major Conditional Use Permit. The Respondents and the
Department hereby agree that the Major Conditional Use approval for the subject property shall
be amended as set forth above and all future development shall not proceed without a building
permit allocation.
4. Further Proceedings. Conditioned upon Monroe County's adoption of the
amendments to the Major Conditional Use Permit by approval of this Settlement Agreement, the
Department shall, within 15 working days of receipt of said amendments file appropriate
pleadings with the Division of Administrative Hearings to close the case and relinquish
jurisdiction back to the Department.
Entirety of Agreement. The parties further agree that this Settlement Agreement
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contains the entire and exclusive agreement among the parties and may not be modified in any
manner except by an instrument in writing and signed by the parties.
6. Duplicate originals. This Settlement Agreement may be executed in any number
of originals or counterparts, all of which evidence one agreement, and only one of which may be
produced for any purpose.
7. Enforcement. In the event of a breach of this Agreement or failure to comply
with any condition of it, or if it has been based upon materially inaccurate information, the
Department may enforce this Agreement as provided in Sections 380.05, 380.07, and 380.11,
Florida Statutes.
8. Scope of Authority. This Agreement affects the rights and obligations of the
parties under Chapter 380, Florida Statutes. It is not intended to influence or determine the
authority or decisions of any other state or local government 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, or restrict the Department's authority with regard to future
developments orders for the Project. It is not intended to limit the authority of the Department
with regard to any development other than the Project.
9. Release; Costs and Attorneys Fees. Each party hereto releases the other from
any and all claims or demands arising out of the subject dispute. Each party shall bear its own
costs and attorneys fees incurred in connection with this matter.
10. Date of Execution. The date of execution of this Agreement shall be the date that
the last party signs and acknowledges this Agreement.
11. Recordation. This Agreement shall run with the land and shall bind, and the
benefit shall inure to, respectively, Monroe County, Leo F. Winterling, James A. Winterling, the
Department, and their respective successors and assigns. Respondents Leo F. Winterling and
James A. Winterling shall record this Agreement in the Public Records of Monroe County,
Florida, or Monroe County may record the Agreement at the Respondents' (Winterlings) expense
and shall provide a certified copy of the recorded Agreement to the Department within 15 days
after receipt of the executed Agreement from the Department.
IN WITNESS WHEREOF, the parties, by and through their respective undersigned duly
authorized representatives, have executed this Agreement on the dates and year below written.
BALANCE OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES TO FOLLOW
WITNESSES:
Witness as to Winterling
, �, bi (, :L�L m_L
Print Name
LEO F. WINTERLING
Leo F. Winterling
STATE OF FDO=A 'MC,iYU&)6
COUNTY OF ?tffitb�W Cc t.Y
The foregoing instrument was acknowledged before me this z day of
, 1 U of 2011, by LEO F. WINTERLING who is personally known to me or who
has produced k\O�MY,c '61 � � f (S 1� o r n---.,c . as identification.
Print Name of Notary Public
My Commission Expires: Q VG �0 � 2
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FROM : FAX NO. : Jun. 01 2011 12:05PM P7
W ES:
i s to Win ding
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. ri t Name
STATE OF FLORIDA
COUNTY OF MONROE
JAMES A. WINTERLING
a-� e
es A. Winterling 7
The foregoing instrument was acknowledged before me this S � day of
2011, by JAMES A. WINING who isVersonally known to me or who
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has produced r) � identification.
Pr'Pridf Name of Notary Public
My Commission Expires:
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FROM : FAX NO. : Jun. 01 2011 10:30AM P5
WITNESSES:
STATE OF FEMMA
COUNTY OFMONROE—
Cry I
GEORGE C. WINTERLING
George C. Wmtorling
The foregoing instrument was acknowledged before me this __L day of
Zjj I fW- 2011, by GEORGE C. WINTERLING who is personally known to me or
who has produced I) "r j 4p n'v—, as identi
Clo"Nubfic
LOLA D MCDERMOTT
NOTARY PUBLIC
Print
My Com�m�issioa ;xplres: s
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2011-06-01 12:14 WINTERLING LEO Page 5
WITNESSES:
i ess as to Winterling
c lvlr,�6" T .
Print Name
STATE OF FLORIDA
COUNTY OF MONROE
PAUL J. WINTERLING
The foregoing instrument was acknowledged before me this day of
JL4�� 2011, by PAUL J. WINTERLING who is personally known to me or who
has produced 6v 1a-ld 'b✓;Vev, Li u"Lc as identification.
JONATHAN R. WILLIAMS
Notary Public -Maryland
Anne Arundel County
My Commission Expires
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Nkafy Public
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Print Name of Notary Public
My Commission Expires: 12,/Zr) 701 L/
WITNESSES:
Witness as to Winterligg
'Print Name �J
STATE OF Fib M(h Y)61
COUNTY OF IvI 9E INUOC-
The foregoing instrument was acknowledged before me this Zr)day of
2011, by MARK J. WINTERLING who is personally known to me or who
has produced Irk n l a (A 1i 1 c Y5 as identification.
1�. .1!i Public
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Print Name of Notary Public
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Clerk
Deputy Clerk
STATE OF FLORIDA
COUNTY OF MONROE
MONROE COUNTY
The foregoing instrument was acknowledged before me this Z1*w�day of
Ca,,,ftie.,s
2011, by who is personally known to me-o �s
s id—efffiTizatim.
PAMELA 0. HANCOCK
MY COMMISSION N DD 739412
EXPIRES: February 7, 2012
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Notary Public
Print Name of Notary Public
My Commission Expires:
MONROF COUNTY ATTORNEY
APPRO D AS TO FORM
ROBERT B HILLINGER� iR
CHIEF ASS}STANJ�U�TY ATTORNEY
Date: D
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DEPARTMENT OF COMMUNITY AFFAIRS
By:
omas Beck, Director
Division of Community Planning
STATE OF FLORIDA
COUNTY OF LEON
A/pprxoved as to fqrm and legality:
Assistant Genera Counsel
The foregoing instrument was acknowledged before me this / day of
ld2m�— g g g Y
2011, by J.
produced
Thomas Beck w 1s personally 'known or who has
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as identification.
Notary Public
Print Name of Notary Public
My Commission Expires:
n� s MIRIAM SNIPES
,F MY COMMISSION N DD 989E6S
EXPIRES: September 7, 2014
Bonded Thru Notary Public UndenwOM
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