Loading...
Item B1 * BOCC SPECIAL MEETING * * CLOSED SESSION 9:00 A.M. * BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY  Meeting Date: 2/26/13 MAR Division: County Attorney Bulk Item: Yes No XX Staff Contact Person: Bob Shillinger, 292-3470 AGENDA ITEM WORDING: An Attorney-Client Closed Session in the matters of: 1) Monroe County v. Utility Board of the City of Key West, dba Keys Energy Services, Case No. CA-K-12-549; 2) Alicia Roemmele-Putney, et al. v. Robt. D. Reynolds, et al., Case No.: 3D12-333(formerly styled as Roemmele-Putney, et al. v. Monroe County, et al., Case No. 3D12-333, Lower Tribunal Case No. CA-K-11-342); 3) Reynolds v. Utility Bd. of the City of KW, dba Keys Energy Services, PSC Docket No.120054-EM; 4) James B. Newton, Ruth L. Newton, Robert D. Reynolds and Julianne C. Reynolds v. Monroe County, Case No. 2013-CA-86-K; and 5) An administrative appeal by James D. Newton, re: Property at 2047 Bahia Shores Road, No Name Key, Planning Department File No. 2012-096 also styled as James B. Newton & Ruth Newton, Appellants, v. Monroe Co. Planning Commission, Appellee, DOAH Case No.13- 000083. ITEM BACKGROUND: Per F.S. 286.011(8), the subject matter of the meeting shall be confined to settlement negotiations or strategy sessions related to litigation expenditures. Present at the meeting will be the County Commissioners, County Administrator Roman Gastesi, County Attorney Bob Shillinger, Assistant County Derek Howard, Assistant County Attorney Susan Grimsley, Assistant County Attorney Steve Williams, special litigation counsel Mike Burke and a certified court reporter. PREVIOUS RELEVANT BOCC ACTION: 2/20/13 BOCC approved a Closed Session to be held at the BOCC Special meeting on 2/26/13 at 9:00 a.m. in Marathon, FL CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: N/A TOTAL COST: INDIRECT COST:_____BUDGETED: Court Reporter costs Yes X No _____ DIFFERENTIAL OF LOCAL PREFERENCE: _______________________________________ COST TO COUNTY: SOURCE OF FUNDS: Court Reporter costsGeneral Funds REVENUE PRODUCING:AMOUNT PER MONTHYear ____ Yes No X APPROVED BY: County Atty X OMB/Purchasing Risk Management ____ DOCUMENTATION: Included Not Required X DISPOSITION:AGENDA ITEM # Revised 2/05 The Solar Community of No Name Key 1 934 No Name Drive No Name Key, Florida 33043 Monroe County Board of County Commission Special Meeting February 26, 2013 — Marathon, Florida Agenda Item B -1 and C -1 and D -3 Dear Mayor Neugent and Fellow Commissioners: We have reviewed the materials in the binder that was recently distributed by Commissioners Rice's office. Important information is not included in this binder. We have also reviewed the back -up materials for today's agenda. Important information is also missing from the back- up materials. As an aside, there were over 135 pages of information in the back -up materials for today's agenda. This information was made available to the public this past Friday, February 22, 2013. We do not feel this is enough time for us, or for this Board, to review and digest all of the information provided for today's agenda items. We ask they you please consider the additional information we will be providing today prior to making up your minds on these important issues. For the record, we would like to call your attention to Section 102- 185(d) Appeals, which states: "Section 1o2- 185(d) Effect of filing an appeal. The filing of a notice of appeal shall stay all permit activity and any proceedings in furtherance of the action appealed from unless the administrative official rendering such decision, determination or interpretation certifies in writing to the commission and the applicant that a stay poses an imminent peril to life or property, in which case the appeal shall not stay further permit activity and any proceedings. The commission shall review such certification and grant or deny a stay of the proceedings." Recently the adjacent property owners were notified of an Appeal to the Planning Department by Robert and Julianne Reynolds regarding a permit to connect their house to the power poles recently installed on No Name Key by Keys Energy Services. (KES) (File Number 2013- 024.) This Appeal may have the effect of staying any action that would allow the connection of the 22 homes on No Name Key to the KES power poles. Not being sure of its affect on today's proceedings, we decided to be cautious and make it part of the record. B -1: It is a Poor Idea to Ignore the Public Service Commission (PSC) Hearings The County could decide not to participate in all of the matters currently before the PSC. This would be a very risky decision. It would mean that Monroe County is willing to hand over their Home Rule to an appointed Board in Tallahassee. It would also mean the County would not have the authority to enter into agreements with utility providers without in put from the PSC. The County needs to present its solid legal arguments to the PSC. None of the pending suits should be ignored. This issue is reaches far beyond the scope of No Name Key. C -1: A Settlement Agreement in Conflict with the CBRS Overlay District Ordinance is Illegal The County could conceivably decide to enter into a Settlement Agreement to end the ongoing litigation by allowing the 22 homes to hook into the power lines on No Name Key, but that would be against the law. It is clearly an illegal act for a local government to enter into a Settlement Agreement if the agreement is in violation of the local Code. Any agreement that would allow the hook -up of the 22 houses to the newly placed infrastructure on No Name Key would be considered contract zoning which is highly illegal. We wrote Attorney Robert Hartsell yesterday for confirmation that the County cannot legally enter into a Settlement Agreement that would be in conflict with the CBRS Overlay District ordinance. Given Mr. Shillinger's advice at the BOCC meeting on December 12, 2012, when the issue of a settlement agreement was first raised, we would imagine he would agree with the case law in the attached letter from Mr. Hartsell dated February 24, 2013. (See attached Letter to Alicia Roemmele- Putney from Attorney Hartsell dated February 24, 2013 regarding Contract Zoning.) D -3: A Legislative Interpretation Based on Erroneous Fact is Not Allowed Under the Law As described in Option C of Agenda Item D-3, Staff is including the option of making a legislative finding that a conflict exists between the language in the Year 2010 Comprehensive Land Use Plan and the Monroe County Code. It is further explained by Staff that such a Finding could be use to initiate an amendment to the Code to eliminate Section 130 -122 MCC, the CBRS Overlay District ordinance. This would allow the immediate hook-up of the 22 houses to the commercially supplied power on No Name Key. Option C is a poor idea for a multitude of reasons. First, this Board would be misapplying Section 163.3194 FS, which exists as an interim solution where a newly adopted Comprehensive Plan is more restrictive than the not -yet updated Land Development Regulations, or visa versa. More importantly, this Board would be making a Finding that is not supported by Facts. A conflict between the language in the Year 2010 Comprehensive Plan and the MCC Section 130 -122 clearly does NOT exist for the following reasons. 1.) In plain English "discourage" and "prohibit" are not opposing, they are gradations of the negative. "Encourage" and "prohibit" or "discourage" and "allow" are opposing and therefore would be in conflict. 2.) Comprehensive Land Use Plans are policy documents and are by definition more general in nature than the Land Development Code, which implements the policies of the Plan and are more specific in nature. 3.) The Year 2010 Comprehensive Land Use Plan includes Policy 1301.7.12, which includes both the words "discourage" and "prohibit." This alone clearly demonstrates there is no conflict between the Year 2010 Comprehensive Land Use Plan and the Monroe County Code. Policy 1301.7.12 states: "By January 4, 1998, Monroe County shall initiate discussions with the FKAA and providers of electricity and telephone service to assess the measures, which could be taken to discourage or prohibit extension of facilities and services to Coastal Barrier Resources Systems (CBRS) units." (Year 2010 Comprehensive Plan, Adopted on January 4, 1996.)' Note: the highlighting was added for emphasis. 4.) On December 19, 2001 the original CBRS Overlay District ordinance 043 -2001 was unanimously adopted by the BOCC. After adoption it was sent to the Department of Community Affairs (DCA) for review. The DCA found the original ordinance to be consistent with the Year 2010 Comprehensive Plan. The DCA Final Order No.: DCA02- OR -o32 includes Finding of Fact number 3 that states: "Ord. 043 -2001 is consistent with the County 2010 Comprehensive Plan." (See attached DCA Final Order No.: DCA02- OR -o32.) 5.) On September 17, 2008, the BOCC (3 -2) amended the CBRS Overlay District ordinance by creating Ordinance No. 020 -2008. which lifted the prohibition against the extension of a new infrastructure to or through CBRS units. On December 12, 2008. the DCA REJECTED the amended ordinance because lifting the prohibition would made the ordinance inconsistent with the Year 2010 Comprehensive Land Use Plan's policies to discourage both private and public investments in CBRS units for new or expanded facilities. The DCA Final Order No.: DCA08 -OR -352 includes Finding of Fact number 7 that states: "Section 163.3202, Florida Statutes, however, requires that land development regulations contain specific and detailed provisions necessary to implement the adopted comprehensive plan which discourages the extension of facilities and utility services to CBRS units and prohibits public expenditures for new or expanded facilities areas designated as unites of CBRS except for expenditures necessary for public health ' In fact, Acting Planning Director Antonia Gerli took this action on January 31, 1996 in a Letter to Mr. Dale Finigan listing the CBRS policies. And, Monroe County Administrator James Roberts also took this action on August 2, 1996 when he wrote the Utility Board of the City of Key West stating that: "Also, you should know that the Monroe County Comprehensive Plan as adopted has policies that are clearly not in support of such an extension of electric service. Please see attachments. Therefore, I must suggest to you that the County does not support extension of electric service to No Name Key." and safety. While the County's Comprehensive Plan does not prohibit the extension of facilities and services into CBRS units, Ordinance 020 -2008 conflicts with the County's policies discouraging both private and public investments in CBRS units for new or expanded facilities." (See attached DCA Final Order No.: DCA08 -OR -352.) On February 18, 2009, the BOCC (5 -0) RESCINDED Ordinance No. 020 -2008. This means that the original wording of Ordinance 043 -2001 remains in place and still stands as consistent with the Year 2010 Comprehensive Land Use Plan. In closing, please see the attached 02/25/2008 letter from Attorney Hartsell to Attorney Shillinger regarding Agenda Item D -3 and which cites the applicable law to substantiate the above statements as to why Option 3 is not available to this Commission. Thank you for you interest in this matter. Sincerely, Alicia Roemmele- Putney, Presiden The Solar Community of No Name Key 872 -8888 Attachments: •Letter to Alicia Roemmele- Putney from Attorney Hartsell dated February 24, 2013 regarding Contract Zoning, 2 pages. .Department of Community Affairs Final Order No.: DCA02- OR -o3, 6 pages. •Department of Community Affairs Final Order No.: DCA08 -OR -352, 7 pages. •Letter to Attorney Shillinger from Attorney Hartsell dated February 24, 2013 regarding Agenda Item's D -3 "Option C ", 2 pages.