HomeMy WebLinkAboutItem U1BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:
October 19, 2011
Division:
County
Administrator
Bulk Item: Yes
_ No x
Department:
County
Administrator
Staff Contact Person/Phone #: Roman Gastesi /292-4441
AGENDA ITEM WORDING:
Request to speak to the Board of County Commissioners in regards to Mandalay — Morgan Ocean
Sunrise Lease Agreement, Andrew M. Tobin, Esquire.
ITEM BACKGROUND: Mr. Andrew M. Tobin, Esq. would like to address the Board on the
following issues:
1. Request to Reconsider Lease Amendment to Morgan Ocean Sunrise
2. County's Failure to Prosecute Illegal Construction on County Right of Way
PREVIOUS RELEVANT BOCC ACTION:
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS:
TOTAL COST: N/A INDIRECT COST: BUDGETED: Yes No
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY: SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No
APPROVED BY: County Atty
DOCUMENTATION: Included
DISPOSITION:
Revised 7/09
AMOUNT PER MONTH Year
OMB/Purchasing Risk Management
Not Required_
AGENDA ITEM #
Cyr -Connie
Subject: FW: Mandalay - Morgan Ocean Sunrise Lease Amendment
From: Andrew Tobin fmailto:tobinlaw@terra nova. netl
Sent: Friday, October 07, 2011 11:03 AM
To: Gastesi-Roman
Cc: Paskalik-Joe; Hurley -Christine; Schwab-Townsley; Haberman -Joe; Shillinger-Bob; Hutton -Suzanne; Howard -Derek;
BOCCDIS5; Colonna-Terri; BOCCDIS4; Wigington-Kim; BOCCDIS3; 'Tammy'; Grimsley-Susan
Subject: RE: Mandalay - Morgan Ocean Sunrise Lease Amendment
Roman;
I would like to appear before the BOCC on October 19 on the following issues:
a) Request to Reconsider Lease Amendment to Morgan Ocean Sunrise;
b) County's Failure to Prosecute Illegal Construction on County Right of Way
As I will be travelling to and from Key Largo that day, I respectfully request the item be scheduled anytime between 11
a.m. and 3 p.m. Should that not be possible, I will be available at any time.
Thank you,
Andrew M. Tobin, Esq.
Attorney at Law
P.O. Box 620
Tavernier, FL 33070
305.852.3388
tobinlaw@terranova.net
From: Andrew Tobin Finailto:tobinlaw@terra nova. net]
Sent: Friday, October 07, 2011 10:48 AM
To: 'Grimsley-Susan'
Cc: 'Paskalik-Joe'; 'Hurley -Christine'; 'Schwab-Townsley'; 'Haberman -Joe'; 'Shillinger-Bob'; 'Hutton -Suzanne'; 'Howard -
Derek'; gastesi-roman@monroecounty-fl.gov; 'Commissioner Murphy'; 'Commissioner Neugent'; 'Commissioner Rice';
'Commissioner Wigington'; 'Commissioners Carruthers'; 'Tammy'
Subject: Mandalay - Lease Amendment
Please see attached letter regarding illegal expansion of the restaurant
Andrew M. Tobin, Esq.
Attorney at Law
P.O. Box 620
Tavernier, FL 33070
305.852.3388
tobinlaw@teffanova.net
ANDREW M. TOBIN, P.A.
Attorney at Law
Post Office Box 620
land Use & zoning Law
I'obinlaw«rtcrrana�a.nct Tavernier, Florida 33070
Environmental Law
Administrative Law
Telephone 305-852-3388
Appellate Practice
Real Estate Closings
October 1.8, 2011.
Via Email and U.S. Mail
Mayor and Commissioners
c/o Danny Kolhage, As Clerk to the Board of County Commissioners
Monroe County Courthouse
Key West, FL 33040
Re: Morgan Ocean Sunrise — Amended Lease (Mandalay)
Dear Mayor and Commissioners;
In as much as your rules do not allow you to take action at the Sounding
Board I have decided to withdraw my request to appear before the BOCC on
Wednesday October 19.
Notwithstanding my absence I respectfully request that you take action to
rescind the lease and to require demolition of the improvements on County right-of-
way.
For your reference, I have attached copies of my previous letters and the
survey from 1996, 2004, and 2011, showing the progression of unlawful and
unpermitted. activities on County right-of-way.
Respectfully yours,
Andrew M. Tobin, Esq.
cc: Via 1"Kmail
Mayor and Commissioners
Roman Gastesi, County Administrator
Joe Paskalik, Building Official
Christine Hurley, Growth Mgt Director
Townsley Schwab, Planning Director
Suzanne Hutton, Esq. Monroe County Attorney
Bob Shillinger, Esq.
John Jabro, Esq.
ANDREW M. TOBIN, P.A.
Attorney at Law
Post Office Box 620
Tavernier, Florida
Land Use & Zoning g Law
33070
Environmental Law
Administrative Law
Telephone 305-852-3388
Appellate Practice
Real Estate Closings
October 11, 2011
Mayor and Commissioners
c/o Danny :Kolhage, As Clerk to the Board of County Commissioners
Monroe County Courthouse
Key West, FL 33040
Re: Morgan Ocean Sunrise — Amended Lease (Mandalay)
Dear Mayor and Commissioners;
The "Amendment to Lease" approved on September 21, suggests the County
did not have knowledge about the illegal construction in the right of way. While a
survey may not have been attached to the original lease, the County was in
possession of a 1996 survey when it entered into the lease in 1997. The County also
has in its possession a 2004 survey submitted to the County as part of the
application for major development approval approved by Resolution No. P69-07 and
a 2011 survey which clearly shows the majority of the illegal construction was done
after 1996, and not in "1944 or the 60's" as suggested in the Agenda Summary.
The .Agenda Summary incorrectly states: "... the proposed amendment to the
lease also recognizes that paragraph 6 of the lease, which had prohibited the
increase of the building footprint, was rendered moot when the Board entered into a
Development Agreement with Ocean Sunrise, LLC in 2007, which allowed and
contemplates some improvements."
The Monroe County Code was not rendered moot by the Development
Agreement regardless of what was "contemplated." That is because development
agreements do not authorize development, they merely "freeze" development
approvals. Resolution No. 493-2007, which approved the Development Agreement
recognizes that on the first page:
Approval of this Development Agreement by the BOCC shall not
constitute approval of a specific site plan. Approval of a site plan
shall be determined upon submittal of an application for Major
Conditional Use Permit approval which would. include any
variance applications required to be in compliance with the land
development regulations.
Planning Resolution P69-07, which approves the Major Conditional Use
Application. is controlling. It expressly adopts §9.5-65(i) that requires the owner to
comply with all additional standards imposed on it by the particular provision of
this chapter authorizing such use and by all other applicable requirements of the
Monroe County Code. It also states:
Prior to the issuance of a building permit, the proposed
development and building shall be found to be in compliance
with the Monroe County Building Department, the Monroe
County Floodplain Administrator, the Monroe County Engineer
and the Monroe County Fire Marshall.
No such findings have ever been made, nor could it have been. The Major
Conditional Use Approval was not approved in phases and is currently dormant.
The restaurant is non -conforming and in violation of the code in every
respect. The structure is below base flood elevation; it violates the front, side, and
rear setbacks; it was recently and illegally expanded on to a public street; and it has
zero on -site parking spaces. The Amendment to the Lease to the extent it seeks to
approve illegal construction is an end run around the Code and is ultra vires.
This building is a fire hazard and threatens the mobile homes and vessels in
the neighborhood. I therefore respectfully ask you to reconsider your vote to amend
the lease and that you notify the Building Official and Fire Marshall to take such
action as may be required to demolish the illegal construction.
Sincerely yours,
'-�4': -
Andrew M. Tobin, Esq.
cc: Mayor Heather Corruthers (via email)
Commissioner George Nugent (via email)
Commissioner Kim Worthington (via email)
Commissioner Sylvia Murphy (via email)
Commissioner David Rice Joe Paskalik, Building Official (via email)
Christine Hurley, Growth Mgt Director (via email)
Roman Gastesi, County Administrator
Townsley Schwab, Planning Director (via email)
Joe Paskalik, Building Official
Suzanne Hutton, Esq. Monroe County Attorney (via email)
Bob Shillinger, Esq. Chief Assistant County Attorney (via email)
Susan Grimsley, Esq. Assistant County Attorney (via email)
Fire Marshall
Enclosures: Agenda Summary, October 6 letter with surveys, Amendment to
Lease, Resolution 493-2007, and Resolution P69-07
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 9/21/11- MR Division: County Attorney
Bulk Item: Yes XX No Staff Contact Person: Susan Grimsley, #3470
s a r.in rr VAMUNU: Approval of an Amendment to Lease dated 11/12/1997 for a strip of County -
owned right-of-way located on Second Avenue, Mandalay Subdivision, Key Largo to enlarge the description
of the leased parcel and to reflect the current status of structures located on the leased parcel.
&hall Dft%,2Llt2(UU1r1X As a result of encroachments consisting of a concrete building and a frame building,
existing since 1944 and the early 1960's respectively, onto the County ROW on Second Avenue, Mandalay Subdivision,
Key Largo, a owner o t e property adjacent to the subject County ROW offered to purchase the ROW from the
County. In 1997 the Board did not approve the purchase/sale of the ROW but instead authorized leasing a 10 foot portion
of the County -owned 60 foot ROW to the adjacent property owner to coincide with the mortgage on the property at a
cost of $100 per year with a term not to exceed 20 years (see attached Resolution No. 469-1996). The lease term began
12/1/1997 and expires 11/30/2017.
On July 20, 2011, the Board approved two instruments: 1) Acknowledgement of Transfer of Title and Consent of
Landlord and 2) Assignment of Lease. The original lease agreement had been entered into with Canalis Holding Corp.
but ownership of the property adjacent to the County ROW changed hands numerous times. On 8/3/2010, a Certificate
of Title to the adjacent property was issued to Morgan Ocean Sunrise, LLC as a result of a foreclosure action. The
instruments approved by the Board in July 2011 acknowledged and formally consented to the transfer of the title and
assignment of the 1997 lease agreement from Ocean Sunrise Associates, LLC to Morgan Ocean Sunrise, LLC, the
current owner, with no change to the original terms of the lease agreement.
Morgan Ocean Sunrise, LLC, the owner of the property adjacent to, and lessee of, the leased parcel has leased the
restaurant building on its property and the right of way to Florida Keys Quality Foods, Inc. Recently, during the course
of applying for permits to renovate the restaurant, the tenant Florida Keys Quality Foods, Inc. discovered that the
structures built by undetermined predecessors actually extend into the right of way beyond the original 10 foot strip
leased by the County in 1997. It is unclear as to whether the encroachments were actually over the 10 foot leased area at
that time. The property owner and tenant have asked the County to consider leasing an additional 10.4 foot wide strip,
bringing the width of the leased parcel to 20.4 feet. The proposed Amendment to Lease will also clarify the exact length
of the leased portion of the ROW.
In addition to widening the leased strip, the proposed amendment to the lease also recognizes that paragraph 6 of the
lease, which had prohibited the increase in footprint of the buildings on the leased premises, was rendered moot when the
Board entered into a Development Agreement with Ocean Sunrise, LLC in 2007, which allowed and contem sled some
improvements. ,Section 5 of that 2007 Deve opment Agreement authorized Ocean Sunrise to make improvements within
the leased portion of the ROW on Second Avenue and put parking on the ROW. This amendment makes the Lessee
clearly responsible for the buildings and items that are and will be in the right of way.
Case law has determined that the leasing of County right of way falls within the parameters of F.S. 125.35, which
requires competitive bids when leasing or otherwise disposing of County real property. However, an exception to the
competitive bid requirement exists should the Board find that the parcel "is of insufficient size and shape to be issued a
building permit for any type of development to be constructed on the property" The Growth Management Division has
certified that the leased parcel in question is of insufficient size and shape to qualify for a building permit and would not
be eligible for a variance under the parameters set forth in the Land Development Code. Growth Management has also
certified that there is only one adjacent property owner, one of the entities requesting this expansion of the leased area, so
there are no other adjacent property owners eligible to compete for this sliver of leased land.
The Board is advised that Rock Harbor Marina, Inc., which is not an adjacent land owner to the leased parcel but which
is located within the Mandalay subdivision, has filed suit against Morgan Ocean Sunrise,.LLC, seeking to, inter alia,
invalidate the lease of Second Avenue. A copy of the First Amended Complaint in Rock Harbor Marina, Inc. Y. Morgan
Ocean Sunrise, LLC, 2011 -CA-421 -P is attached. Rock Harbor Marina, Inc. has also filed a separate suit (11 CA 578 P)
against the County„ the Planning Director, Morgan Ocean Sunrise, LLC, Florida Keys Quality Restaurants, and DPBR
* P-8 RMSED BACK—UP *
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE (Amendment) Is made this day of 2011 by and between
the Board of County Commissioners of Monroe County, Florida, a political subdivision of the State of
Florida (BOCC or Lessor) and Morgan Ocean Sunrise, LLC, a New York limited liability company (Lessee).
WHEREAS, on November 12, 1997, the BOCC entered into a Lease Agreement (Lease) with Canalis
Holding Corp, for ten feet of county right of way (ROW) on Second Avenue, Key. Largo, Florida, for a
term of ten years from December 1,1997 until November 30, 2017, and
WHEREAS, this lease was entered into in order to reflect the historic encroachment of a concrete
building and a frame building, existing since 1944 and the early 1960s respectively, however no survey
or drawing was attached that demonstrated the actual building configuration within the ROW; and
WHEREAS, the Lease was assigned from Canalis Holding Corporation to Earthmark Companies, LLC,
which assignment was approved as required by paragraph 7 of the Lease by the BOCC on February 18,
20D4;and
WHEREAS, the Lease was assigned from Earthmark Companies, LLC, to Ocean Sunrise Associates, LLC,
which assignment was approved by the BOCC August 18, 2004, and
WHEREAS, on July 21, 2011, the SOCC acknowledged the transfer of title through a foreclosure action
from Ocean Sunrise Associates, LLC to Morgan Ocean Sunrise, LLC and approved the assignment of the
Lease to Morgan Ocean Sunrise, LLC, on the same date; and
WHEREAS, the Owner Lessee assigned the Lease to Florida Keys Quality Foods, Inc., a tenant of the
adjacent property and the leased ROW upon which the existing buiiding(s) is located, which assignment
was approved by the Lessor on July 21, 2011; and
WHEREAS, Lessee Is the successor in interest to the rights and obligations set forth In a Development
Agreement between Ocean Sunrise Associates, LLC and the BOCC (Development Agreement) which was
approved by Resolution 493-2007 on November 14, 2007, which includes the use of the leased property
and which was executed subsequently to the Lease, thus allowing some modification in the use of the
property under the Lease; and
WHEREAS, the survey and site plan provided at the time of the Development Agreement approval show
encroachment of bulldkrgs or structures beyond the original description of the leased premises as well
as allowing parking, wheel stops, an impervious handImpped parking space, and landscaping on the
County right of way; and
WHEREAS, Lessor and Lessee desire to clarify the amount of property leased and the use of the property
pursuant to the Lease based on the subsequent approvals; and
WHEREAS, the BOCC has specifically determined:
9/90M
1. Morgan Ocean Sunrise, LLC Is the owner of lot 1, block 4, Mandalay Subdivision according to
the plat thereof recorded at Plat Book 1, Page 194 of the Official Records of Monroe County and Is the
only property owner adjacent to the right of way;
2. The parcel which was the subject of the Lease upon which the buildings encroached in the
past, prior to 1997, Is of insufficlent size and shape to be issued a building permit for any type of
development to be constructed on the property;
3. The leased parcel, as amended by this Instrument , Is of Insufficient size and shape to be
issued a building permit for any type of stand-alone development to be constructed on that parcel;
4. Because of the historical encroachments for approximately sixty (60) years on this portion of
Second Avenue, the pubiles use of and access to the County's right of way is not further affected by the
Lease or this Amendment.
S. Lessor has no current need for the leased property and no other use planned for the
property.
NOW, THEREFORE, the parties agree to amend the Lease as follows:
1. Paragraph 2 is amended as follows:
2. Description of Premises: The property subject to this lease is described on Exhibit A attached
hereto.
2. Paragraph 3 Is amended as follows:
3. Purpose: This lease is for the purpose of allowing the use of the existing buildings and
accessory structures that exist on the county right of way as shown on Exhibit B and associated
Improvements.
3. Paragraph 61s amended as follows:
6. Unauthorized Use. Lessee shall, through Its agents and employees, prevent the unauthorized
use of the leased premises or any use thereof not in conformance with this Lease. Development
shall be as showed by the Development Agreement dated November 14, 2007, or the
Development Agreement as modified as provided by law. Only parking, wheel stops and
landscaping are otherwise permitted within the leased area, outside of the structures and
buildings shown on Exhibit B, In accordance with the Development Agreement and any
conditional use permit. Whether the Development Agreement is in effect or not, there shall be
no changes or improvements which further Increase the footprint of the existing development
as shown on Exhibit B.
4. Paragraph 10 is amended as follows:
10. Insurance Requirements. During the term of this Lease, Lessee shall procure and maintain
policies of fire, extended risk, and general liability Insurance coverage. The liability Insurance
coverage shall be in an amount not less than S200,000 per person and $300,000 per occurrence
WV=ou
ANDREW M. TOBIN, P.A.
Attorney at Law
Post Office Box 620
Land Use & Zoning Law
1'obinlax�torrattova.net Tavernier, Florida 33070
Environmental Law
Administrative Law
Telephone 305-852-3388
Appellate Practice
(teal Estate Closings
October 6, 2011
Susan Gri:msely, Esq.
2798 Overseas Highway, Suite 400
Marathon, Florida 33050
Re: Mandalay Restaurant — Amended Lease
Dear Susan,
I understand that you presented the above referenced item to the Board of
County Commissioners on September 21, 2011. Leaving aside whether the lease or
the amended lease contravenes section 19-1 (a) which states "No dedicated and
accepted right of way in the County shall be abandoned where the right of way
terminates on a body of open water" the issue of the non -permitted construction on
the right of way in violation of the building and zoning codes appears to have been
ignored.
The enclosed surveys from 1996, 2004 and 2011 show the progression of the
illegal construction, as follows: a) 1996 - 21' x 9' and 8' x 6' encroachment; b) 2004 -
21' x 9' + ].Tx 5' wood frame addition + small "covered bar;" and c) 2011 - 16' wide x
?? "split level commercial building."
With respect to the development agreement and the major conditional use
approval, compliance with the building codes, including setbacks and FAR is
required and does not excuse illegal construction. Further, the major conditional
development order was not approved in phases and is dormant at this time.
Please let me know the County's intentions with respect to this illegal
construction.
Sincerely y urs, '
Andr M. Tobin, sq.
cc: Board of County Commissioners
Joe :Paskalik, Building Official
Rhonda Norman, Code Enforcement
Christine Hurley, Growth Mgt Director
Townsley Schwab, Planning Director
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