HomeMy WebLinkAboutItem J4BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: August 17, 2011 Division: Growth Manama 10:OOAM Time Certain
Bulk Item: Yes _ No X Department: Planning & Environmental Resources
Staff Contact Person/Phone #: Christine Hurley — 289-2500
Joseph Haberman - 289-2532
AGENDA ITEM WORDING:
Discussion and direction to provide the Board with a summary of the status of the Development Agreement between the
County and Key Largo Ocean Resort Co -Op, Inc. (KLOR), status of the Major Conditional Use Amendment and options
relating to how the County may proceed as a party to the Development Agreement.
ITEM BACKGROUND:
Attached is a memorandum outlining the current status of the KLOR Development Agreement. Per Section H, B.
Duration of Agreement, the Development Agreement shall remain in effect for a period of 7 years, commencing on the
effective date (which was amended by court order), until August 22, 2016. Within those 7 years, the Development
Agreement approved a plan of action with completion dates to be complied with, within the term in which the agreement
is effective, as described in the memorandum. Two primary performance criteria have been breached, according to the
Development Agreement (see attached memorandum).
Staff has prepared the following list of options for the Board to consider:
A. Make a formal finding that there has been a material breach of the agreement and direct the Growth Management
Division to issue a letter notifying KLOR of the material breach and requesting that KLOR cure the issue within 90
days as defined as a remedy for the breach. Such action must be carried out per Section II, H. Breach, Amendment,
Enforcement, and Termination. It is not likely that KLOR can cure this condition within 90 days.
B. Make a formal finding that there has been a material breach of the agreement and that there is no cure. Direct the
Growth Management Division and Attorney's Office to begin the process of terminating the agreement. Such action
must be carried out per Section II, H. Breach, Amendment, Enforcement, and Termination.
C. Direct the Growth Management Division to notify KLOR there is a breach and that KLOR may apply for an
amendment to the Development Agreement to extend the deadlines and provisions therein. Such action must be
carried out per Section II, H. Breach, Amendment, Enforcement, and Termination.
D. Take no action at this time and await the resolution of the recent legal issues before making any further decisions. To
date, the legal issues relate to ownership of submerged land, riparian rights, and site plan copyright issues.
PREVIOUS RELEVANT BOCC ACTION:
In 2006, the County entered into the 7-year Development Agreement with KLOR to comply with a mediated settlement
agreement. The Development Agreement provided conceptual approval of a plan to redevelop the site and required
KLOR to obtain a major conditional use permit to approve the site plan.
CONTRACT/AGREEMENT CHANGES: n/a
STAFF RECOMMENDATIONS:
Staff recommends Option B.
TOTAL COST: INDIRECT COST: BUDGETED: Yes No _
DIFFERENTIAL OF LOCAL PREFERENCE:
COST TO COUNTY: SOURCE OF FUNDS:
REVENUE PRODUCING: Yes _ No AMOUNT PER MONTH Year
APPROVED BY: County Atty OMB/Purchasing Risk Management
DOCUMENTATION: Included X Not Required
DISPOSITION: AGENDA ITEM #
To: The Monroe County Board of County Commissioners (BOCC)
Through: Christine Hurley, AICP, Director of Growth Management
Townsley Schwab, Senior Director of Planning & Environmental Resources
Bob Shillinger, Chief Assistant County Attorney
Joseph Haberman, AICP, Planning & Development Review Manager
From: The Growth Management Division
Date: August 2, 2011
Subject: Key Largo Ocean Resort Co -Op, Inc. (KLOR), 94825 Overseas Highway (US 1),
Key Largo
Meeting: August 17, 2011
1
2 The purpose of this memorandum is to provide the Board with a summary of the status of the
3 Development Agreement between the County and KLOR and options relating to how the County
4 may proceed as a party to the Development Agreement.
5
6 In 2006, the County entered into the 7-year Development Agreement with KLOR to comply with
7 a mediated settlement agreement. The Development Agreement provided conceptual approval of
8 a plan to redevelop the site and required KLOR to obtain a major conditional use permit to
9 approve the site plan.
10
11 The Development Agreement was filed and recorded on August 17, 2006. Per the agreement,
12 the effective date was 30 days after the duly signed and recorded agreement was received by the
13 Florida Department of Community Affairs (DCA). The DCA received the recorded document
14 on August 24, 2006 and on September 21, 2006 issued a letter to the County stating they would
15 not appeal. Therefore, the effective date of the Development Agreement, as originally
16 contemplated, was September 24, 2006.
17
18 However, the Court modified the effective date of the Development Agreement to August 22,
19 2009 due to the protracted litigation over the approval of the site plan.
20
21 Per Section II, B. Duration of Agreement, the Development Agreement shall remain in effect for
22 a period of 7 years, commencing on the effective date, until August 22, 2016.
23
24 Further, within those 7 years, the Development Agreement approved a plan of action with
25 completion dates to be complied with within the term in which the agreement is effective, as
26 follows:
27
Page 1 of 4
1 • Section II, F. Local Development Permits: KLOR is required to submit a complete site
2 redevelopment plan, in the form of a major conditional use permit application, to the
3 County for review within 120 days of the effective date of the agreement.
4
5 The original effective date was September 24, 2006 and 120 days from that date was
6 January 22, 2007. The applicant submitted a major conditional use permit application on
7 May 4, 2007. Despite not meeting the January 22, 2007 deadline, the County accepted
8 the major conditional use permit application and the Planning Commission approved it on
9 August 24, 2007 with a redevelopment site plan. This action would have been in
10 compliance with the restructured effective date of August 22, 2009, as 120 days from that
11 date was December 20, 2009. However it should be noted that the effective date was
12 restructured after the major conditional use permit was approved, not before.
13
14 • Section III, A. Permits: KLOR is required to apply for all permit applications for "roads,
15 fire suppression, stormwater, landscaping, utility relocations, and other community
16 facilities or improvements" within 1 year from the effective date.
17
18 One (1) year from the original effective date was September 24, 2007. One (1) year from
19 the restructured effective date was August 22, 2010. As of the date of this memorandum,
20 the applicant has not submitted any such building permit applications. There is no more
21 time for this action to be carried out with the restructured effective date of August 22,
22 2009.
23
24 • Section III, A. Permits: KLOR is required to apply for all permit applications to resolve
25 compliance issues (as described in the agreement) within 3 years from the effective date.
26
27 Three (3) years from the original effective date was September 24, 2009. Three (3) years
28 from the restructured effective date was August 22, 2012. The applicant submitted
29 demolition permit applications that could resolve all of the site compliance issues if the
30 work is carried out in full. If additional demolition permit applications are necessary,
31 there is more time for this action to be carried out with the restructured effective date of
32 August 22, 2009.
33
34 To date, all structures originally found to have compliance issues have been demolished;
35 however piles of concrete and other construction debris remain.
36
37 • Section III, A. Permits: KLOR is required to bring all lots into full compliance with the
38 Monroe County Code and the Development Agreement within 6 years from the effective
39 date.
40
41 Six (6) years from the original effective date was September 24, 2012. Six (6) years from
42 the restructured effective date was August 22, 2015. As of the date of this memorandum,
43 the applicant has not submitted any such building permit applications.
44
45 • Section III, D. Special Development Standards: KLOR is required to record in the
46 public records a restrictive covenant running in favor of the County that limits the
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number of residential units on the property to the number approved under the site
redevelopment plan within 60 days of the effective date.
Sixty (60) days from the original effective date was November 23, 2006. Sixty (60) days
from the restructured effective date was October 21, 2009. An online search of the
official records found no reference to a restrictive covenant being recorded by KLOR.
As the Board is aware, recent activity by the current KLOR board includes submittal of an
application for a major deviation to the major conditional use permit in order to modify the site
plan approved by the Planning Commission in 2007. This application was recently withdrawn
by the current KLOR board.
As described in the preceding bullets, KLOR has not met one of the major required completion
dates (regarding site work). Further, compliance with additional deadlines may be jeopardy or
due to recent legal issues or unachievable because the site work completion date has not been
met. Therefore, staff has prepared the following list of options for the Board to consider:
A. Make a formal finding that there has been a material breach of the agreement and direct
the Growth Management Division to issue a letter notifying KLOR of the material breach
and requesting that KLOR cure the issue within 90 days as defined as a remedy for the
breach. Such action must be carried out per Section II, H. Breach, Amendment,
Enforcement, and Termination. It is not likely that KLOR can cure this condition within
90 days.
B. Make a formal finding that there has been a material breach of the agreement and that
there is no cure. Direct the Growth Management Division and Attorney's Office to begin
the process of terminating the agreement. Such action must be carried out per Section II,
H. Breach, Amendment, Enforcement, and Termination.
C. Direct the Growth Management Division to notify KLOR there is a breach and that
KLOR may apply for an amendment to the Development Agreement to extend the
deadlines and provisions therein. Such action must be carried out per Section II, H.
Breach, Amendment, Enforcement, and Termination.
D. Take no action at this time and await the resolution of the recent legal issues before
making any finther decisions. To date, the legal issues relate to ownership of submerged
land, riparian rights, and site plan copyright issues.
Staff Recommendation: Staff recommends Option B. The Development Agreement has
achieved compliance with life safety codes and for the most part, unsafe environment / life safety
conditions no longer exist. Otherwise, the Development Agreement outlined a process for
KLOR to follow for redevelopment. At this time, those processes can follow existing
Comprehensive Plan and Land Development Code processes and there is no longer a need for
the County to be involved in the internal turmoil at the site. Further, staff has recognized 285
ROGO exemptions at the site through the major conditional use permit process, documented by
Planning Commission Resolution #P35-07 and its staff report. In the event of the termination of
Page 3 of 4
the major conditional use permit, staff will issue a letter of development rights determination
(aka ROGO exemption) to the co-op in its place.
Page 4 of 4
I ilp
The Law Offices of Kent Harrison Robbins
August 2, 2011
By Email to shillinlaer--bob(a monroecounty-fl.gov
Heather Carruthers, Mayor
Board of County Commissioners
Monroe County Attorney's Office
530 Whitehead Street
Key West, Florida 33040
Re: Key Largo Ocean Resorts Co-op, Inc., Extension of Duration of Development
Agreement.
Dear Mayor Carruthers,
I represent Key Largo Ocean Resorts Co-op, Inc. C KLOR".)
As you know on January 31, 2006, KLOR and Monroe County entered into a Development
Agreement.
The duration of the Development Agreement is 7 years from its effective date. KLOR has
complied with the Agreement by removing in excess of 1,000 violations on the property, by
removing all non -community structures on the site. On June 5, 2010, a modification to the Site
Plan was approved by an overwhelming majority of shareholders ("Modified Site Plan.") The
Modified Site Plan affected the internal organization of the site and eliminated all development
in the preservation area as well as provided a 40% increase in the open space. It also added
parking spaces and reduced the projected cost of infrastructure redevelopment in an amount in
excess of $1,000,000.00.
The Modified Site Plan was scheduled to be heard on a Major Deviation application before the
Monroe County Planning Commission for approval. The architect and attorney for KLOR
discovered that both parties to the Development Agreement had overlooked that certain land area
that was included in the previously approved Site Plan had been deeded to the State of Florida in
1972. As a result, the application for Major Deviation was withdrawn from the Monroe County
Planning Board in order to provide KLOR with the time to correct this serious title issue.
Currently, KLOR is exploring its remedies concerning the recovery of the deeded area from the
State of Florida. Because there are outstanding questions of whether and when that land was
submerged and filled, the appropriate remedy to be sought has not been determined. The
representatives of both Monroe County and KLOR have been working together to find a solution
to this title issue. In the interim, the existing Site Plan is problematic because it includes Iand
with title issues and has been superseded by the shareholder approved Modified Site Plan which
may need to be further modified because of the title issues.
1224 Washington Avenue Miami Beach FL 33139•4614
305 532 0500 Fax 305 5310150
infa@khrlawoffices.com khrlawcfficees.com
Offlces — Miami Beach FL 1 Montmal CC I San Juan PR
Therefore, KLOR is requesting that the Development Agreement be extended for an additional 2
years and to extend the time to submit permits by 3 years in order to meet all development
requirements under the Agreement.
Given that Monroe County has already received the benefit of KLOWs removal of all of the
violations on the property and that the property no longer poses a threat to the health, safety and
welfare of the citizens of Monroe County, and good cause having been shown, the extension of
time requested herein should be granted.
In the future, please address all communication about the Development Agreement to me and to
Gicela Pino, President of KLOR
Since
Z,
Kent Harrison Robbins
cc: County Administrator
1100 Simonton Street, Rm. 2-205
Key West, Florida 33040
2
Florida Department of
Environmental Protection
Marjory Stoneman Douglas Building
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
July 28, 2011
Mr. Jim Muller
Muller and Associates, Inc.
3808 Sally Lane
Tallahassee Florida 32312-1019
Re: Key Largo Ocean Resorts; Monroe County
Dear Mr. Muller:
Rick Scott
Governor
Jennifer Carroll
Lt. Governor
Herschel T. Vinyard Jr.
Secretary
AUG 0 1201,
MONROE COUNTY ATTORNEY
This is in response to inquiry to the Division of State Lands regarding the
Board of Trustees of the Internal Improvement Trust Fund of the State of
Florida's extent of ownership in the uplands and submerged lands at the Key
Largo Ocean Resort. The subject lands are located in Section 13, Township 62
South, Range 38 East, Monroe County.
Our records indicate that portions of the submerged lands previously
conveyed by Board of Trustees Deed Nos. 24107, 24151, and 21847 were
reconveyed to the state by Deed recorded in Book 503 Page 22, Monroe
County Official Records. Subsequent to this reconveyance it appears that
some additional filling along the shoreline occurred. However, historic aerial
evidence indicates the fill occurred prior to July 1,1975. Therefore, it appears
that the uplands located within the boundaries of the reconveyed submerged
lands may not be state owned, and would qualify for a Certificate from the
Board of Trustees per Section 253.12(9)&(10), Florida Statutes if all additional
criteria are met. You may contact Jody Miller at (850)245-2802 for further
information about the process to apply for a certificate per said statute.
Thank you again for your inquiry. If this office can be of any further
assistance regarding this determination, please address your questions to
www. dep.state. ff us
Mr. Jim Muller
July 28, 2011
Page two
Melanie Knapp, Government Operations Consultant II, mail station No.108 at
the above letterhead address, or by telephone at (850) 245-2788.
Sincerely,
Terry E. Wilkins n, Chief
Bureau of Survey and Mapping
Division of State Lands
TEW/mjk
enclosures
cc: Jody Miller, DEP/ BSM
Gus Rios, SLERP/ Marathon
Mike Long, DEP/ DSL
Jesus F. Bujan, PA
Odalys Sierra, Luis A. Gonzalez and Onidia Gonzalez
Kent Harrison Robbins, Atty
Robert B. Shillinger, Monroe Co, Attorney's, Office
John Wolfe, Monroe County Planning Commission
F:\TITLE\MELANIE\11121\Key Largo Ocean Resorts 2.docx
ck
Florida Department of Govern r
Governor
Environmental Protection Jennifer Carroll
Marjory Stoneman Douglas Building Lt. Governor
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 Herschel T. Vinyard Jr.
Secretary
July 28, 2011
Odalys Sierra, Luis A. Gonzalez and Onidia Gonzalez
5751 SW 59th Place
South Miami, Florida 33143
Re: Key Largo Ocean Resorts; Monroe County
Dear Odalys Sierra, Luis A. Gonzalez and Onidia Gonzalez:
This is in response to your letter dated July 11, 2011 that was copied to the
State of Florida Board of Trustees of the Internal Improvement Trust Fund
regarding the ownership of uplands and submerged lands at the Key Largo
Ocean Resort. The subject lands are located in Section 13, Township 62 South,
Range 38 East, Monroe County.
Our records indicate that portions of the submerged lands previously
conveyed by Board of Trustees of the Internal Improvement Trust Fund Deed
Nos. 24107, 24151, and 21847 were reconveyed to the Board of Trustees by
Deed recorded in Book 503 Page 22, Monroe County Official Records.
Subsequent to this reconveyance it appears that some additional filling along
the shoreline occurred. However, historic aerial evidence indicates the fill
occurred prior to July 1,1975. Therefore, it appears that the uplands located
within the boundaries of the reconveyed submerged lands may not be state
owned, and would qualify for a Certificate from the Board of Trustees per
Section 253.12(9)&(10), Florida Statutes if all additional criteria are met. You
may contact Jody Miller at (850)245-2802 for further information about the
process to apply for a certificate per said statute.
Thank you again for your inquiry. If this office can be of any further
assistance regarding this determination, please address your questions to
www. dep.stat e. fl. us
Sierra, Gonzalez and Gonzalez
July 28, 2011
Page two
Melanie Knapp, Government Operations Consultant II, mail station No.108 at
the above letterhead address, or by telephone at (850) 245-2788.
Sincerely,
Terry E. Wilkinson, 'ef
Bureau of Survey and Mapping
Division of State Lands
TEW/mjk
enclosures
cc: Jody Miller, DEP/ BSM
Gus Rios, SLERP/ Marathon
Mike Long, DEP/ DSL
Jesus F. Bujan, PA
Jim Muller, Muller and Associates, Inc.
Kent Harrison Robbins, Atty
Robert B. Shillinger, Monroe Co, Attorneys Office
John Wolfe, Monroe County Planning Commission
F:\T=\MELANM\1112-1\Key Largo Ocean Resorts 3.docx
Florida Department of Rick Scott
Governor
Environmental Protection Jennifer Carroll
Marjory Stoneman Douglas Building Lt. Governor
3900 Commonwealth Boulevard Herschel T. Vinyard Jr.
Tallahassee, Florida 32399-3000 y
Secretary
July 28, 2011
Mr. Jesus F. Bujan, PA
Fleitas, Bujan & Fleitas, LLP
Ocean Bank Building
782 NW LeJeune Road, Suite 530
Miami, Florida 33126
Re: Key Largo Ocean Resorts; Monroe County
Dear Mr. Bujan:
Thank you for your recent inquiry requesting a determination of the Board of
Trustees of the Internal Improvement Trust Fund of the State of Florida's
extent of ownership in the uplands and submerged lands at the Key Largo
Ocean Resort. The subject lands are located in Section 13, Township 62 South,
Range 38 East, Monroe County.
Our records indicate that portions of the submerged lands previously
conveyed by Board of Trustees Deed Nos. 24107, 24151, and 21847 were
reconveyed to the state by Deed recorded in Book 503 Page 22, Monroe
County Official Records. Subsequent to this reconveyance it appears that
some additional filling along the shoreline occurred. However, historic aerial
evidence indicates the fill occurred prior to July 1,1975. Therefore, it appears
that the uplands located within the boundaries of the reconveyed submerged
lands may not be state owned, and would qualify for a Certificate from the
Board of Trustees per Section 253.12(9)&(10), Florida Statutes if all additional
criteria are met. You may contact Jody Miller at (850)245-2802 for further
information about the process to apply for a certificate per said statute.
Thank you again for your inquiry. If this office can be of any further
assistance regarding this determination, please address your questions to
www. dep.state. fl. us
Mr. Jesus Bujan
July 28, 2011
Page two
Melanie Knapp, Government Operations Consultant II, mail station No.108 at
the above letterhead address, or by telephone at (850) 245-2788.
Sincerely,
t
Terry E. Wilkinson, Chief
Bureau of Survey and Mapping
Division of State Lands
TEW/mjk
enclosures
cc: Jody Miller, DEP/ BSM
Gus Rios, SLERP/ Marathon
Mike Long, DEP/ DSL
Jim Muller, Muller and Associates
Odalys Sierra, Luis A. Gonzalez and Onidia Gonzalez
Kent Harrison Robbins, Atty
Robert B. Shillinger, Monroe Co, Attorney's Office
John Wolfe, Monroe County Planning Commission
F:\TjTLE\NEELANEE\1112-1\Key Largo Ocean Resorts.docx
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