DOAH Case No. 91-2657DRIG
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BEFORE THE STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DOAH Case Number 91-2657DRI
[Hearing Officer: William Kendrick]
FLAWAC Case Number APP-91-007
DEPARTMENT OF COMMUNITY AFFAIRS,
Petitioner,
Vs.
LLOYD AND KAREN NEWCOMBE# RICHARD
MULLINS AND MONROE COUNTY,
Respondents.
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STIPULATION
L.
Thee FLORIDA
DEPARTMENT
OF COMMUNITY AFFAIRS; LLOYD and
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LL
'-
Lc�KAREN-,:NEWCOMBE;
and MONROE
COUNTY, hereby enter into this
- tipUlM:ion, to
facilitate
a narrowing of the issues to be
resolved in this
administrative proceeding, and say:
WHEREAS, on January
3, 1991, Monroe County issued
building permits to Lloyd and Karen Newcombe [hereinafter
the Newcombes] for land clearing, for placement of fill and
for construction of a single-family residence, on a lot
owned by them in the Sunrise Cay II subdivision of north Key
Largo, Monroe County, Florida;
WHEREAS, prior to the effective date of the subject
permits, to wit: the expiration of the 45-day appeal period
during which the Department of Community Affairs
[hereinafter the department] may appeal such permits [as
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"development orders" under Chapter 380.07, Florida Statutes]
within an area of critical state concern, the Newcombes
cleared their homesite on their lot;
WHEREAS, in February 1991 the department timely
appealed the issuance of the subject Monroe County permits,
halting construction of the Newcombe's home and initiating
an administrative process before the Florida Land and Water
Adjudicatory Commission [hereinafter FLAWAC]; and
WHEREAS, the parties in consultation with each other
and appropriate field staff, have developed an on -site
landscape/restoration plan for the Newcombes' lot, the
implementation of which is a first step toward resolution of
the dispute between the parties as to what lawfully can be
required of the Newcombes by the state in this case;
WHEREFORE, the parties hereby enter into this
Stipulation in order to allow the construction of the
Newcombe home to go forward at this time, conditioned upon
their agreement here to proceed with no less than the
effectuation of the on -site landscape/restoration set forth
in this Stipulation, and otherwise reserving unto the
parties their respective legal positions as to what the
state lawfully can require of them in addition to such on -
site landscape/restoration plan:
1. The parties are in agreement that the
implementation of the on -site landscape/restoration plan for
the property at 37 Cardinal Lane, Ocean Reef Club, North Key
Largo, Monroe County, Florida [also known as Lot 4, Block 1,
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Sunrise Cay II], as set forth in the restoration/landscape
plan prepared by Dale R. Baldwin & Associates, Landscape
Architects, revisions through June 7, 1991, is the first
step toward resolution of the dispute between the parties as
to what lawfully can be required of the Newcombes by the
state in this case, for purposes of this stipulation. If
the said on -site restoration is deemed inadequate by the
Florida Land and Water Adjudicatory Commission to mitigate
for the clearing of the homesite, the state may require, to
the extent authorized by law upon exhaustion of all
appellate review, additional on -site restoration and/or off -
site restoration.
2. LLOYD NEWCOMBE and KAREN NEWCOMBE, as owners of the
subject realty agree to comply with and complete the
referenced landscape/restoration plan in accordance with the
terms set forth therein and in this paragraph. Said
Restoration/Landscape Plan is attached hereto and made a
part hereof as Exhibit "A." The referenced planting will be
in accordance with the best horticultural practices in terms
of scheduling, with all plantings being accomplished no
later than September 30, 1992. All trees shall be tagged
for identification to determine survivability and
replacement as needed. Eighty (80%) of all canopy and
understory vegetation shall survive for a period of not less
than three (3) years from the date of final planting. The
planting shall be monitored by the Newcombes and inspected
by the department on an annual basis. Any and all plants
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which die shall be replaced with suitable replacement
plants.
3. By entering into this Stipulation, none of the
parties hereto concedes any legal position with respect to
any legal issue related to the clearing of the subject
homesite. Nothing in this Stipulation is intended to
prejudice, nor shall prejudice, any legal right, duty,
defense or obligation of any party, including without
limitation: (a) any right of the state to lawfully impose
upon the Newcombes such restoration or other sanction as the
department may deem appropriate for the clearing of the
homesite under the subject permits; and (b) any defense of
the Newcombes to any such imposition upon them of
restoration or other sanction.
4. The Newcombes agree to secure in favor of the State
of Florida, Department of Community Affairs, an irrevocable
letter of credit in the amount of $25,000, which letter of
credit shall assure the state that the Newcombes shall
perform any and all actions lawfully required of them in
addition to the referenced on -site landscape/restoration,
which actions the Florida Land and Water Adjudicatory
Commission may require of them and choose to impose on them
by final order. Such final order shall be subject to
judicial review.
5. - In recognition of and subject to the stipulations
and agreements herein, and upon the referenced irrevocable
letter of credit being duly furnished to the department, and
upon the department determining to its satisfaction that
said letter of credit is in a form appropriate to the
protection of the interests of all parties, the Newcombes
may proceed with the construction of their home on their lot
and with the on -site restoration in accordance with the
referenced landscape/restoration plan and the provisions of
paragraph 2 above.
6. Richard Mullins is the contractor employed by the
Newcombes and has not actively participated in this matter.
IN WITNESS WHEREOF, the parties through their duly
authorized representatives have executed this Stipulation on
the dates indicated.
Dated: August 6, 1991
Dated: August 6, 1991
LLOYD and KAREN NEWCOMBE
by TOM R. MOORE, Esq.
ROBERTS & EGAN, P.A.
Attorneys for Newcombes
217 South Adams Street
Tallahassee, Florida 32301
FLORIDA DEPARTMENT OF
COMMUNITY AFFAIRS
1
nr �
RANDALL KE LEY,
Assistant Secr ry
Department of
Community Affairs
2740 Centerview Drive
Tallahassee, Florida 32399
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Dated: August , 1991
MO O OUN Y
M
by RANDY LUDACER,
Monroe County Attorney
310 Fleming Street
Key West, Florida 33040
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