Loading...
Item P3BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: 12/12/12 Division: County Attorney Bulk Item: Yes No xx Staff Contact Person/Phone #: Bob Shillinner 292 -3470 erg AGENDA ITEM WORDING: Consideration of settlement proposals in Monroe County v. Utility Board of the City of Key West, dba Keys Energy Services, Case No.: CA -K -12 -549; Roemmele Putney, et al. v. Monroe County, et al., Case No.: 3D12-333, Lower Tribunal Case No.: CA -K -11 -342; Reynolds v. Utility Bd. of the City of KW,, dba Keys Energy Services, PSC Docket No.: 120054 --EM; An Administrative Appeal by James D. Newton re: Property at 2047 Bahia Shores Road, No Name Key, Planning Dept. File No.: 2012 -096. ITEM BACKGROUND: The attorney (Bart Smith) Robert & Julianne Reynolds and James & Ruth Newton, owners of two residential properties on No Name Key who favor commercial power, submitted a settlement proposal on November 21, 2012, which proposes a halt in all of the above - referenced litigation while the County goes through the process to revise its comprehensive plan and land development code to eliminate the prohibition against the extension of utilities in Coastal Barrier Resource System areas. In response to an inquiry as to the No Name Key Property Owners Association's position on the Reynolds/Newton proposal, the attorney (Andy Tobin) for the association, which represents most if not all of the remaining "pro- power" owners on No Name Key, submitted an alternative proposal on November 26, 2012. Both proposals are attached as back up. As of the agenda deadline, no actual settlement agreements have been drafted. Any proposed agreement received prior to the meeting will be circulated as additional back up. This item is being placed on the agenda as a placeholder. PREVIOUS RELEVANT BOCC ACTION: nla CONTRACT/AGREEMENT CHANGES: nla STAFF RECOMMENDATIONS: none at this time. TOTAL COST: INDIRECT COST: BUDGETED: COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: AMOUNT PER MONTH Year APPROVED BY: County Atty _ OMB/Purchasing Risk Management DOCUMENTATION: Included Not Required DISPOSITION: AGENDA ITEM # Revised 1109 AND REW M. TOBIN, P.A. Attorney at Law Tobinla►o+@terranova.net Post office Bog 620 Tavernier, Florida 33070 Telephone 305 -852 -3388 November 26, 2012 Via Email Robert S ger, Esq. County Attorney 1111 14th Street, Suite 408 Ivey west, FL 33040 Re: No Name Key - Electricity Dear Bob; Land Use & Zoning Law Environmental Law Administrative Law Appellate Practice Real Estate Closings This letter is in response to your email of November 17, 2012, requesting our comments on the Reynolds settlement offer. While I commend Mr. Reynolds for trying to resolve the pen din g Circuit Court action, the Third District appeal, the P S C administrative rote a dln and the P g� Newton Plan g commission appeal I do not think it is legally p ossible ' or g y P procedurally realistic based on the following. First, Monroe Coup does not have Count the authority to agree to change the law in a certain way. Second, there are too many moving parts to ink an agreement that covers all of the contingencies, and that satisfies all of the parties. Third, even if the parties agree the courts and the PSC are not likely to stand down for an extended period to accommodate two separate amendment proceedings, which are subject to and could be extended b y an further a 'strative appeals Finally, it is unclear what remedies would be available should someone be unhappy with some or all of the decisions. I have an alternative suggestion that would not require an amendment to the LDRs or the Comprehensive Plan. It would however require the BOCC to make the he following endings: a) The transmission line in the right -of -way is not governed by §130- 122. This issue was resolved by Monroe County v. Dept. of Community Affairs, 560 So.2d 240 (Fla. 3d DCA 1990) and was cited by the County Attorney in several letters; and b) • Objective 102.8 and Policy 102.8.1, 1 02.8.5, are overned b Goal g y 102, which states: Monroe County shall direct future growth to lands Robert Shillinger, E sq. Page 2 which are intrinsically most suitable for development and shall encourage conservation. and protection of environment." Policy 1301.7.12 seeks to discourage development by discouraging utilities. Because converting from stinky, noisy, and dangerous generators to a central electric grid is not "future growth" the Comprehensive Plan is not offended. This finding comports with the finding by the U.S. Fish and wildlife Service. Adopting (a) and (b) would in my opinion resolve Bahia and Dolphin subdivisions. Island's End is- in the CBRS system, and would require the following finding. c) A minor deviation of the transmission line- from the right -of -way is not fatal to the project as a whole. (Note: I am informed the transmission line can be revved into the existing road easement if necessary). If that is not acceptable, there is a judicial solution that is more certain less costly, and would involve much less staff and agency tune. Mr. Reynolds could a • � ag r ee to withdraw his appeal before the Third District and allow the circuit court to resolve the issues that you framed in the declaratory action in Monroe Fount vs. .keys Energy and 43 property owners, Case No. 11 -342, filed April 2011. All of the parties would be before the Court, and the issues have been briefed. As there are virtually no contested facts, it is likely the case could be resolved by summary judgment within months. If Judge Audlin should decide that r ovidin p g electricity to some or all of the existing homes in Bahia, Dolphin or Islands End is prohibited by the Comprehensive Plan and/or the LDRs, the County and homeowners could jointly seek the amendments. Please inform the Commission that my clients appreciate their willingness to entertain a settlement. Hopefully, w ith their assistance, a fair and equitable solution can be reached. Sincerely urs, r Andrew M. Tobin, Esq. cc. No /Fame Key Property Owners Association, Inc.. Ms. Mary Bakke Mr. Jay Lentini COUNSEL AT LAW BARTON W. SMITH, ESQ. BARTON SMITH, P.L. PATRICK M. FLANIGAN ESQ. PRINCIPAL ATTORNEY ASSOCIATE ATTORNEY 624 WHrrEHEAO STREET KEY WEST, FLORIDA 33040 GREGORY S. OROPEZA, ESQ. A550CIATE ATTORNEY TONE: (305) 296 -7227 • FAx: (305) 296 -8448 WWW.9ARTO N5M ITH PL.0 O M VIA EMAIL: shillinger -bob wmonroecounty November 19, 2012 Robert Shillinger, Esq. County Attorney MONROE COUNTY ATTORNEY'S OFFICE 1111141h Street, Suite 408 Key Vilest, FL 38040 RE: MONROE COUNTY, a political subdivision of the Slate of Florida v. UTILITY BOARD OF THE CITY OF KEY VIIEST, FLORIDA, et al. Case Number — 2012 -CA -849 -K Robert and Julianne Reynolds v. Utility Board of the City of Key West, Florida Public Service Commission Case No.: 120054 -EM Dear Bob, This letter is written solely for purposes of settlement and none of the factual assertions herein are to be deemed admissions. Pursuant to our conversation, please allow this letter to serve as a revised settlement offer which expressly and unequivocally does not request the County to engage in contract zoning. On behalf of my clients, Robert Reynolds, Julianne Reynolds, James Newton, and Ruth Newton (collectively, "Clients "), I propose the following settlement to the above referenced litigations, and to resolve any and all potential and actual claims my clients may have against Monroe County, including but not limited to potential claims pursuant to 42 U.S.C. §'1983 for violation of the Equal Protection Clause. If Monroe County agrees to the following proposal, a formal settlement agreement would be required to be entered into by and between Monroe County and Clients, and if they are agreeable, any and all other parties to the above referenced litigations. My Clients propose that Clients and Monroe County agree to stay all pending litigation referenced above and Clients would also use their best efforts to obtain agreement from the No Name Key Property Owner's Association, Inc. ("NNKPOA ") and the Utility Board of the City of Key Vilest, d.b.a. Keys Energy Services ( "KES ") to stay all pending litigation referenced above. Monroe County would also agree to toll any time limitations for filing an appeal to the Department of Administrative Hearings in the James and Ruth Newton building permit appeal, File No. 2012 -096. My Clients would agree to not file any other potential claims they may have against Monroe County until such time as the terms of this settlement agreement are complied with and the actions are dismissed or such time where the terms of this proposed settlement are deemed to not be capable of being complied with by the parties. In exchange for our Clients' agreement to stay all matters being litigated or potentially capable of being litigated, Monroe County shall agree to process, subject to its formal zoning procedures, amendments to the Comprehensive Plan and Land Development Regulations eliminating any and all provisions that restrict the extension of utilities to No Name Key and other areas within Monroe County located within Coastal Barrier Resource System overlay ( "CBRS ") areas. Monroe County shall also agree to process, subject to its formal zoning procedures, amendments to its Comprehensive Plan and Land Development Regulations to eliminate any provisions that would conflict with or give rise to the denial of building permits necessary for property owners to connect to utilities that have or will extend utility service to No Name Key and other CBRS areas located within Monroe County. Monroe County would agree to process, subject to its formal zoning procedures, amendments to its Land Development Regulations ( "LDRs ") to eliminate Section 130 -122 and amendments to its Comprehensive Plan ("Comp. Plan ") to eliminate or amend provisions to ensure there are no conflicts in effectuating the intent of this proposed settlement. Specifically, my Clients propose eliminating all or portions of the following Comp. Plan Objectives and Policies in order to effectuate the intent of this proposed settlement: 1. Policy 10 1.12.4 2. Objective 102.8 and all corresponding policies stemming from Objective 102.8 3. Policy 103.2.4 4. Policy 103.2.10 5. Objective 209.3 C. Policy 215.2.3 7. Policy 217.4.2 8. Policy 1301.7.12 9. Policy 1401.2.2 Upon approval of the proposed settlement agreement, the parties to the agreement would agree to submit a joint application, to be processed pursuant to Monroe County's formal zoning procedures, to amend the Comp. Plan consistent with the requirements above, and submit a joint application to amend the LDRs to eliminate Section 130 -122. Monroe County would agree to waive any fees associated with the applications to amend the Comp. Plan and LDRs. My Clients would agree to draft the application, with the assistance of County staff, subject to approval of the proposed amendments by the County through its formal zoning process, so long as such amendments are consistent with the intent of this proposal to allow for any and all utilities to be extended to No Name 2 Key and any and all CBRS areas, and allowing for building permits to be issued to property owners to connect to utility lines extended to No Name Key and other CBRS areas. If the Comp. Plan amendments and LDR amendment are approved and enacted, the parties to the settlement would execute releases of liability and waivers of rights to sue along with dismiss with prejudice any and all litigations the parties are capable of dismissing. Nothing in the settlement agreement would obligate or require the County to approve the proposed Comp. Plan and LDR amendments. On the contrary, the County, in the settlement agreement, would specifically reserve its independent right to review the Comp. Plan and LDR amendments and disapprove or approve the amendments based on their independent judgment and the consistency with the Comp. Plan as a whole. If the preceding terms are acceptable, please contact me and I will proceed in contacting the NNKPOA and KES and draft a formal settlement agreement to be executed by the parties. Very Truly Yours, Barton W. Smith, Esq. From: Sheila Mullins <flemingstreetgallery@gmail.com> To: Neugent- George < Neugent- George@ monroecounty- fl.gov>; Rice -David <Rice- David @ monroecounty-fl KolhaCtfl gov> aM�P y- Sylvia - fl.gov>; Kolhage -Danny 8 e Danny @monroecounty <Mufphy- Sylvia @monroecounty fl.go Subject: Reject proposed No Name Key Settlement Date: Tue, Dec 11, 2012 5:18 pm Dear Mayor and Commissioners, I am unable to attend the BOCC meeting and I want to express my concerns regarding the underhanded and ill -timed proposed settlement with the Newtons and Reynolds' regarding No Name Key. These are only two of forty three homes on;hheisland so don't set a precedent that will leave the County and taxpayers vulnerable to future financ li This issue is much larger and more far reaching in its influence than the effect on No Name Key alone. Uphold the Comprehensive Land Use Plan Plan and Codes against future legal challeng s ns that will increase the dificulty of defending the Please maintain your strong stand in defense of the Comp Plan as you did in 2010 when you voted unanamously not to amend the coastal barrier policies in the Plan; not to amend the Coastal barrier system ordinance in the Code; and not to grant utility easements to Keys Energy Services to construct transmission lines across County owned conservation parcels. Entertainig a settlement that negates these unanimous votes would be dangerous for the county and have horriffic consequences on the County's ability to stand up to the contstant legal challenges to the Comp Plan. Let the Court answer the County's Declatory Action lawsuit before the BOCC takes any action on this issue; surely we can wait until the Third District Court's ruling on January 14, 2113. I have been following the misguided attempts to bring commercial power to No Name Key all along, and have rarely in my time as a civic activist seen such devious behavior and disregard of our legal process and the rule of law. I have witnessed abuse of individuals by the people who are trying to take No Name Key backwards at a time when solar power is now so mainstream. I was physically assulted during a Utility Board meeting by Brad Vickery who kicked me, a sixty six year old woman, very hard on my lower back as I sat in a a chair in front of him. Please stop these vicious people from destroying a very special place in the Keys and disregarding the wishes of long time residents of to preserve this treasure that belongs to all of us. Thank you and best wishes, Sheila Mullins r.5 0 ROBERT N. HARTSEU , P.A. 1600 S. Federal Hwy, Suite 921 Pompano Beach, Florida 33062 954 -778 -1052 - Fax (954) 941 -6462 Robert(a,Hartsell- Law.com December 11, 2012 Mr. Bob Shillinger County Attorney Monroe County Attorney's Office 1111 12' Street, Suite 408 Key West, Florida 33040 (305) 292 -3470 (305) 292 -3516 — facsimile VIA Email Shillinger- Bob @MonroeCounty- FL.Gov RE: Settlement Proposal from Mr. Bart Smith, Esq. on Behalf of Robert and Julianne Reynolds, James and Ruth Newton in Monroe County v Utility Board of the City of Key West Case No. 2012 -CA- 549 -K; Putney v. Reynolds, Case Number 3D12 -333 and Reynolds v. Utility Board of the City of Key West Public Service Commission case 120054 -EM. Dear Mr. Shillinger, On behalf of my client Alicia Roemmele - Putney, this letter shall serve as a response to the December 11, 2012 settlement proposal from attorney Bart Smith who represents 2 of the 43 homeowner litigants in the above referenced cases. First and foremost I would like to thank you for the opportunity to share my concerns over the settlement with you. It is extremely difficult to digest a complicated settlement agreement on numerous sophisticated cutting edge high profile cases on the eve of a scheduled Board of County Commissioners meeting to decide on whether to move forward with settlement. However, this settlement proposal is so badly riddled with error that I would like to submit the following remarks for your consideration and to share with your board at your pleasure. As you know my client has stood behind the County throughout the numerous existing lawsuits and will continue to do so as long as it takes to resolve them. First, it appears that Mr. Smith seeks to settle not only the cases that have already been filed but "potential claims" he has not yet filed. At the behest of his clients, Mr. Smith has essentially threatened the County with an equal protection claim under 42 U.S.C. Sec. 1983 because his client believes that they are receiving disparate treatment than those similarly situated. This claim has no merit and had no merit when it was heard over 10 years ago. In Taxpayers v. Monroe County Case No. 99- 819 -CA -18 and Monroe County Resolution P17 -99 wherein Monroe County found and the court upheld a finding that the equal protection claim by P3 the No Name Key pro commercial power residents was meritless and they continue to be barred from re- litigating this case under the doctrine of res judicata. While Mr. Smith may be correct that utilities may have been authorized in designated Coastal Barrier Resources System units (CBRS), he fails to reveal that any intrusion was done prior to the establishment of the CBRS federal designation which occurred November 16, 1990 or performed over state park lands without an County issued permit (Bahia Honda State Park). This is hardly a decent case or Mr. Smith would have already filed it on behalf of his clients. This is the exact same argument Mr. Smith also attempted to develop at the Planning Commission that was summarily shot down. Mr. Smith suggests an array of options each being less appetizing than the other, but each requiring four essential conditions that would ultimately subject the County to new array of law suits in exchange for the law suits settled under this proposal. For example: A §163.3215 Fla. Stat. challenge against the temporary approval of the connections could be properly filed against the County seeking Declaratory and Injunctive relief for strict compliance with the Monroe County Comprehensive Plan. (Pinecrest Lakes v. Shidel, 795 So. 2d 191 (Fla. 4th DCA. 2001); Board of County Commissioners of Brevard County v. Snyder 627 So. 2d 469, 475 (Fla. 1993) Machado v. Musgrove 519 So. 2d 629 (Fla. 3d DCA 1987)). In a comprehensive plan "consistency" challenge under § 163.3215, Fla. Stat., a court applies "strict scrutiny" to determine whether an issued permit is consistent with the local government's comprehensive plan. Under this proposed settlement agreement any permit allowing utilities (even on a temporary basis) certainly would not be consistent with the Monroe County Comprehensive Plan considering all of the opinions and decisions in the past 10 years.; 2. The Appellate case Putney v. Re ny olds' Case Number 3D12 -333, is a case that cannot be stayed or held in abeyance by Reynolds nor the County without the participation of Alicia Putney who filed the Appeal in that case. It simply cannot be done, this case survives any settlement agreement between the County and the 4 individuals represented by Mr. Smith . This case is fully briefed and awaiting oral argument on the 14'' of January. After oral argument, it requires no further resources from the County. There is absolutely no reason to even consider settlement until after the court determines the outcome of this case (which it will do regardless of any settlement agreement between the 4 residents and the County).; 3. As a result of this settlement, a § 403.412 Fla. Stat. complaint could be filed against the County for failing to uphold its comprehensive plan and zoning regulations to protect the environment (CBRS and conservation lands). Section 403.412 Fla. Stat. is Mr. Smith mistakenly or misleadingly referred to this case as Monroe County v. Reynolds It was Putney who filed the appeal and Monroe County joined with Putney to preserve its interest in the outcome of the case. The case is correctly styled Putney v. Reynolds Z Interestingly, this week Mr. Tobin who represents some of the proponents of commercial power filed a supplemental brief and demonstrated a renewed interest in the outcome of the case since the planning commission denial of Mr. Newton's permit. 21Page known as Florida's Environmental Protection Act and provides, among other things, a citizens enforcement mechanism to compel a government authority such as Monroe County to enforce its laws, rules or regulations that protect the "air water, and other natural resources." Section 403.412(2)(a)(1) Fla. Stat. Further, Section 403.412(f) Fla. Stat. provides the prevailing party or parties with costs and attorney's fees. § 403.412(f) Fla. Stat.; 4. The settlement agreement contains blatant contract zoning issues susceptible to outside legal challenge. See City of Miami Beach v. Chisolm Properties South Beach. Inc., (where the Third District strongly reaffirmed the illegality of settlement agreements that approve development requests, finding entirely improper: "an attempt by a hotel owner and the City of Miami Beach to grant totally unjustified and illegal height variances through the device of a sweetheart settlement.") 830 So. 2d 842 (Fla. 3d DCA 2002) (emphasis added). Mr. Smith's statement that this "settlement offer which expressly and unequivocally does not request the County to engage in contract zoning" does not absolve the County from actual contract zoning violations. See Morgran Co. Inc. v. Orange County 818 So. 2d 640 (Fla. 5th DCA 2002)(the Court ruled that it could not enforce an agreement that obligated Orange County to support the private owner's request for rezoning, even where a clause purported to state that the contract did not interfere with the County's zoning authority). The options and terms give rise to a number of other obvious contract zoning claims — particularly on any of the "zoning in progress" issues. "Zoning in progress" is a defense to vested rights claim, where the landowner seeks a building permit based on current zoning regulation that are changing by reduction. Not where the landowner can build in advance of duly adopted zoning regulation. Attorney Richard Grosso put the following together in a white paper on the topic: The "zoning in progress" concept is a defense that local governments may assert against a legal claim of vested rights when a landowner sues to avoid having to comply with a zoning regulation. Such cases arise when someone applies for zoning approval under the existing set of regulations, but after a change to those regulations is already formally "in progress ". In Smith v. City of Clearwater 383 So.2d 681 (Fla. 2d DCA 1980), rev. den. 403 So.2d 407, the court stated that an applicant is entitled to a permit under existing regulations only if the proposed regulation that would preclude the intended use is not "pending" when application is made. A proposed government action is deemed "pending" if there are active and documented efforts by those authorized to develop and prepare the proposed regulatory change, and the local governing board or planning board is aware of these efforts. Smith supra, at 685. See also Franklin County v. Leisure Properties, Ltd., 430 So. 2d 475 (Fla. 1 st DCA 1983), rev. den. 440 So.2d 352 (ordinance deemed pending on vote of county commission to advertise notice of intent to consider zoning change). The "zoning in progress" theory does not apply to comprehensive plan changes, because the Growth Management Act provides that a comprehensive plan is not effective until adopted. Gardens Country Club. Inc. v. Palm Beach County, 590 So.2d 488 (Fla. 4th DCA 1991)(citing Sections 163.3194(1)(b) and 163.3197, Fla. Stat.).; 3 1Page 5. The proposed settlement offer includes the obligation to amend the comprehensive plan to accommodate commercial utilities for those who choose to connect. Any comprehensive plan amendments pursuant this agreement would be subject to outside challenges pursuant to § 163.3184 and § 380.05 and 380.0552.; and 6. The Land Use Regulations revisions obligated to fulfill the requirements under this proposed settlement offer would also be susceptible to common law Writ of Certiorari and Mandamus actions. The proposed settlement by Mr. Smith results in a shell game where the County settles some cases, only to be replaced with other more compelling and challenging cases. The cases proposed to be settled by the agreement are not affected and do not affect in any way the outcome of the Galleon Bay decision or the RSi� Key Largo CBRS issues. The Key Largo F&Mk CBRS issue is one of Federal law - a clear case of the use of federal dollars in a CBRS unit, an absolute no -no under the Coastal Barrier Resources Act. The Galleon Bay decision is irrelevant to these issues because they are chronologically stuck in time. Someone once told me, "don't be intimidated by the threat of litigation, it only leads to more litigation." I agree and its sound advice. I believe that the County has the upper hand in the pending litigation and the County should stay firm on its principles. When you're right and righteous, you ultimately win. Best wishes for tomorrow. Regards, Robert N. Hartsell, Esq. Robert N. Hartsell, P.A. cc: Derek Howard, Esq. 41Page