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Item T04 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: October 15, 2003 Division: District 1 Bulk Item: Yes No Department: Mayor Dixie M. Spehar AGENDA ITEM WORDING: Discussion and action to reimburse all legal fees, expert witness fees and court costs incurred by Fred.erick Geibelt and Robert Framarin v. Monroe County, Florida and James Roberts, Case Number CAK-02-1351, and that Morgan and Hendrick return all fees charged to Monroe County for the Geibelt matter. ITEM BACKGROUND: Monroe County refused to process Mr. Geibelt's application for a single-family home at Shark Key. After two trials ending in favor of Mr. Geibelt, evidence showed that Mr. Geibelt's plans complied with the PUD zoning enacted by the County and all past and present Land Use regulations as well, PREVIOUS RELEVANT BOCC ACTION: CONTRACT/AGREEMENT CHANGES: STAFF RECOMMENDATIONS: TOTAL COST: BUDGETED: Yes No COST TO COUNTY: SOURCE OF FUNDS: REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year APPROVED BY: County Atty OMBlPurchasing Risk Management _ DIVISION DIRECTOR APPROVAL: 4r~ >17. \ W~ Mayor Dilie M. Spehar DOCUMENTATION: Included X To Follow Not Required_ AGENDA ITEM # 7 Y DISPOSITION: Revised 1/03 MICHAEL HALPERN, P.A. 209 DUVAL STREET KEY WEST, FL 33040 TELEPHONE (305) 296-5667 TELEFAX (305) 294-9852 ATTORNEY AT LAW Mayor Dixie M. Spehar District One 500 Whitehead Street Suite # 102 Key West, Florida 33040 t RECEIVED SEP 2. 9 2003 NVWOR DIXIE M. SPEHAR September 29, 2003 RE: Request to be placed on the Ageildaofthe BOCC Meeting (Frederick Geibelt and Robert Framarin v. Monroe County. Florida and James Roberts, Case Number CAK-02-13S1). Dear Mayor Spehar, I would greatly appreciate it if you would place on the next County Commission Agenda for the County Commission to review and take action on the matter of Geibelt vs. Monroe County. In this case, on advice issued by your Land Use counsel Morgan and Hendrick, a single family lot owner in Shark Key was wrongfully denied access to the ROGO system, deprived of use of his property, and caused severe financial damage in excess of fifteen thousand dollars for no apparent reason other than his property was located in Shark Key, a development owned by my wife and her family. I enclose for your review a letter written on Monroe County's behalfby special Land Use counsel Morgan and Hendrick asserting the position that Monroe County is not a party to its own zoning resolutions and is therefore not bound by them. Following this letter, Monroe County refused to process Mr. Geibelt's application for a single-family home at Shark Key. Mr. Geibelt filed a Petition for Writ of Mandamus with the Circuit Court in Monroe County and Judge Payne issued an Order to Show Cause to Monroe County to appear in Court and show cause why Mr. Geibelt's application sh~uld not be processed. At the first trial, Monroe County appeared before Judge Payne, represented by Morgan and Hendrick, totally unprepared and without any explanation as to why Mr, Geibelt's application had not been processed. Mayor Dixie M. Spehar September 29,2003 Page 2 On the 16th day of December 2003, Judge Payne issued a Writ of Mandamus . against the County. Despite the fact that the County had appeared at the first trial unprepared, without witnesses, and without any explanation as to why Mr. GeibeIt had been refused processing of his permit application, the County, represented by Morgan and Hendrick, elected to challenge the Judge's Order and asked the Court for a new trial, because they V\i'ere unprepared in the first trial. A second trial was granted by the Court. This trial was more bizarre than the first. Evidence showed that not only did Mr. Geibelt's plans comply with the PUD zoning enacted by the County, the plans complied with all past and present Land Use regulations as well. A copy ofthe transcript trial is provided for the Commissions review. Mr. Geibelt's only sin was that he purchased a lot in my family's development. I am certain that the Monroe County Commission was never fully advised as to the existence of this litigation and the expenditure by Monroe County of taxpayer money for this litigation. It is very important that this litigation, expenditure of taxpayer revenues for this litigation, and the causation of this litigation be investigated by an independent agency. More importantly, this case clearly demonstrates the need for an independent agency to fully review the billing records of the County's Land Use counsel on any matter where issues of conflict of interest are at issue, I respe~tfully request that this matter, as well as all underlying issues that gave rise to this matter, be referred to the State of Florida Commission on Ethics for investigation, including but not limited to conflict of interest issues. Mayor Dixie M. Spehar September 29,2003 Page 3 I also respectfully request that the County require the law firm of Morgan and Hendrick to pay all legal fees, expert witness fees and court costs incurred by Mr. Geibelt in the needless litigation and that Morgan and Hendrick return all fees charged to Monroe County for the Geibelt matter prior to the approval of any new contracts between Monroe County and Morgan and Hendrick for legal services. Sincerely, Halpern A torney for Fred Geibelt and Robert Framarin OCT-08-03 16,13 FROM,MONROE COUNTY ATTY OFFICE 10,3052923516 PAGE 1/6 Hugh I. Morgan Jame$ T. Hendriclc Karon K. CablmllS Robert Cin1mu, Jr. LAW omens MORGAN & HENDRICK 317 W'Al'IEHEAO S'raE'ET KEy WES'f~ FLORIDA 33040 TELEPHONE 30S.296,5676 FACSlMlLB 305.296.4331 W. Curry Harris (1907-1988) Uilaty U. Allw.ry (1920-1999) ..'.~_, "-- ,,~"- ,_ '...0."_- FACSIMILE TRANSMITTAL SHEET Richard Collins PROM' Karen Cabanas TO; , FAX NUMBl!R.; 292-3516 I)J\TJi: October 8) 2003 TOTAl. 1'10. at: llAGHS INCLUDL'IlG COVI'iIt: A'C;; COM.,.ANY: County Attomcy, MOIlJ'(le u; YOUR. JiUlllEIUlNC2 'NUM l'l ti A: 160.01 - ~ Original documents to follow by: r:J R~CULAlt MAIL 0 Cf\1\TIF'l~O MAJL 0 HAND OhLlVEItY o OVERNIGHT MAIL 0 THIS WIL.L. 62 THIl ONLY FORM OF Uf!LIVEAY Ii. N"OTESI~S: .I1tJt!>MIJl"" ._""~ '\,~ RECElVED OCT 0 8 2003 MONROE COUNTY ATTORNEY PRIV1'LEGED MATERIAJ.: (Attomey ClientIWmk Product) The information contained in thill mtssa.ge and attachOO documc:nt.(~) is confidential8l:Ld ptivi}.,ged. It i~ iQ1ended only fQr1hc Ull'" Qflht individuallH cmtily idelltifted. lfyou ate not the intended .r~ipjent, pl1:ase do 110t disseminate. clisnibute ox copy. Instead. please notify us at 305.296.5676 immediarely. Thank you. MAlJ..IN(j ADDIU'..:l:l: P.O. Box 1117, KEy WEST FL 33041 OCT-08-03 16,13 FROM,MONROE COUNTY ATTY OFFICE ID,3052823516 PAGE 2/6 Buehl. Morgan James T, Hcudrick Km::n K.. Cabanas .Robert CinUon, Jr. LAW OFFICES MORGAN & HENDRICK 317 WH:l'mHEAO S,..REET KEy W5ST, Fl-.OkrDA 33040 T~J10N'E 305.296.5676 FACSIMl1.E 305.296.4331 W. Curly Hanii (1907-\988) Hilary U, Albuty (192.0-1999) October 8, 2003 VIA FACSIMILE Mayor Dixie Spehar SOO Whitehead Street, Ste. 102 Key Wc~t, FL 33040 Dear Mayor Spehar: This letter is .in IespoIliC to Michael Halpern's letter of September 29, 2003. Said letter is. at the very least, a complete misrepresentation of this matter and an unfounded attack of my professional intogrity. Neither of which do I take lightly_ Mr. Geibelt's initial R.OGO application was found by staff to be noncompliant with the Count-y's IDRs as to setbacks and building height. It was initially rejected after review of only these two -items. Mr. Geibclt's l'etition for mandamus requested an order mandating the County to process his ROGO application based. in part. OIL bulk regulations set forth in Shark Key's Declarations and ~strictivc Covenants. These Declaratiolls were attached to the petition as all exhibit. Declarations and rcst:rictive covenants are generally filed by the developer of a subdivision and are enforceable only between property own~ within the subdivision. In this case. as is general practice, the declarations and restrictions were filed after the development received CO\Ulty approvaL Therefore, Monroe County was not a party to these declarations and restrictions. Based on staffs finding that the application was not in compliance with applicable regulations and Mr. Geibelt's relilW.ce on the Declarations to which the County is not a party, it was my professional opinion that the case merited a defense. Had J allowed the Court to issue an order based on the Declarations. such a precedent would effectively negate the County's LDRs by allowing developers to file declarations establishing their own bulk regulations, without regard. 10 the County's LDRs. These issues clearly warranted legal defense and at the least, clarification by Judge Payne. 1 was also directed by Plal1Illng Director Marlene . Conaway to defend this case due to staff's finding that the application did not comply with the applicable bulk regulations, Mr. Halpcm's letter erroneously states that Mr. Geibelt was refused access to the ROGO system based on advice from this office. J assure you tha.t Mr. Geibelt's application had been rejected by staff long before 1 became involved. in this matter and r urge you to confirm these facts with Marlene Conaway and/or Tiffany Stankiewic~ at Growth Management. At the first hearing befure Judge Payne I conceded that Mr. Geibelt was subject to the bulk regulations set forth in Ule conditions of plat approval but argued that, in no event. was Monroe COMty subject to the declarations and restrictive covenants. I also raised other procedwaL'jurisdictional issues at this hearing regarding the scope of M:1ano~rnus review. Judgo Payne agreed with my arguments as to the County not being party to the developers Declarations and entered an order. Mr. tfalpern's I)tatements that I was lItolally unprepared and without any explanation" are completely erroneous and offensive MAIl.ING ....nCRl>llS: P.O. BOX 1117. Kuy ~T FL 33041 E-MAIL: KCabauas@tnorganll.ndhenddck.com OCT-08-03 16,14 FROM,MONROE COUNTY ATTY OFFICE ID,3052823516 PAGE 3/6 The otder entered after the first heariug did not simply require the County to process the application) but found it to be ill compliance with all applicable bulk regulations, inc1l1ding the 30% maximum lot coverage requirement agreed upon by all parties. Upon second review of the application, staff found that the plans were well ln excess of the 30010 maximum fot lot coverage. The plans reflected. an approximately SO% lot coverage as calculated under the CU!'I'eJlt LDRs. Therefore. r requested. relief from judgment and asked the Court to hold a second hearing. A copy oftms pleading is attached. At this second hearin~ the parties presented evidence as to the "Pplication(s compliance with the 30% lot coverage. I presented the testimony of Marlene Conaway on thil,i issue. Her testimony related to how lot coverage is calculated under the LDRs beoause there is no express definition. Not until midway through the hearing did Mr. Halpern raise the argument that the application was subject to the pre-l 986 LDRs that did contain au express delinition fur lot coverage. Under this pre-1986 definition. the application did comply and I immediately conceded the issue. Had. Mr. Halpern taken the initiative to raise this issue to me in any of the filed pleadings or otherwis~ it would have been conceded. at. that time. No pleading filed in this cast:: twt:r raised the issue that Mr. Geibelt was subject to the prew1986 WRs. I urge you to review the transcript as to this issue or to confirm. with Marlene Conaway who was at the hearing. As my client, I expressly informed :Ms. Conaway at bearing that had Mr. Halpern raised the issue before that time. I would have conceded it. Likewise, she also agreed that she would have conceded the issue at staff-level had she ever been provided with the information. To paraphrase Mr. Halpern's letter, Mr. Geibelt's only sin was that he hired an attorney who was unwilling to present this office with any documents in support of his clajms that would have negated the need to hold hearing. It is the general practice of attorneys in this County to call me prior to a hearing whtm they believe their position i5 fully supported by the documents in their possession. as I am always willing to concede such matters. Mr. Halpern chose not to do this and his clients clearly incurred additional legal expenses as a result ofms inability to seek informal resolution of this case. TIla.t decision does not bear reimbursement by the taxpayers of this County~ nor was this office remiss in defending thl$ matter. It is my ethical duty to defend and represent the COWlty agains1 such claims, If any action in this matter deems an ethics investigation. it is Mr. .Halpem's complete failure to seek an amicable resolution prior to hearing~ failure to raise the issue of~ pre-1986 LDRs prior to the second hearing) and failure to present me with copies oftbose pubHc record documents prior to hearing. 1 am very much offended by Mr. Halpem1s attack on lIlY professional integrity and accusations that this matter was defended solely due to his involvement. I assure you that this matter was defended solely based on the direction of staff and my review of the documents presented to me by all parties involved. 1 have more important matters to deal with than engage in conspiracies to harass Mr. Halpern's clients. 1 believe my reputation in this legal communlty speaks for itself, specifically including my willingness to concede and resolve mattc:rs without need of litigation. It is alwa.ys my desire to resolve legal matters at minimum cost while representing the best interests oftbis County and its citizens. l. too, am a taxpa~g resideIlt of this County. Please call me at your convenience to discuss or schedule a meeting regarding this matter, including a full review of my files. This invitation is also extended to Mr. Roberts and Mr. Co lIins. Sinnerely, Karen Cabanas cc: Richard Collins. Esq. Jim Roberts. COlUlty Administrator W.1lDIOADD~: p.e, BOX 1117, KEY WESTFL 33041 E-MAIL: KCaOOna8@morganandhcndrick.com OCT-08-03 16,14 FROM,MONROE COUNTY ATTY OFFICE ID,3052923516 PAGE 4/6 " "--- -----' '---' IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL cmCUIT IN AND FOR MONROE COUNTY FLORIDA FREDERICK GElBELT and ROBERT FRAMARIN) Petitioners, v. CASE NO. CA-K-02-1351 MONROE COUNTY) FLORIDA a subdivision of the State ofFlori~ am! JAMBS R.OBERTS. County Admtaistrator1 Respondents. I RRSPONDENTS' MOTION FOR \lELIEF FROM JUl)GMENT Respondents) MONROE COUNTY and JAMES ROBERTS (collectively, "MONROE COUNTY"). by and through wdersigned counsel and. pUl'SUant to Rule 1.540, Fla.R.Civ.P. hereby move this Court {'Or relief from 1he Writ of Mandamus issued in this action and as grounds state: 1, On December 19, 2002~ Respondents were served with a Writ of Mandamus in this action, ordering Monroe County to immediately accept and approve Petitioners' building permit application. 2. The previolJily-d.isputed issues in this action involved whether Petitioners were entitled, under prior County approvals, to a roofhfJigltt of 40 feet and a shoreline setback of 20 feet. Monroe County does not dispute Petitioners' right to these previously"approved bulk regulations. However, the Writ further orders that Monroe County "approve" PetitioIll7S' building pemtit application without further review. 3. The Major DevelopmeJ1t aM Final Development Plans previously approved by Monroe County expressly mandate that Petitioners are entitled to a ''maximum lot coverage" of :'*1o)2~::-VWiO- OCT-08-03 16,14 FROM,MONROE COUNTY ATTY OFFICE 10,3052823516 PAGE 5/6 .;. .---- '--' '-- 30%. & PCtiUOIlCl'51 5i~ plan5llad previously been. rojccted by Monroe County solely due to the roofhei.ght and setback issues, Monroe County had not yet processed Petitioncn' application to dctermi)'le compliance with other applicable regulations. Upon service of the Writ of Mandamus. Momoe County processed Petitioners' building pc:nnit application and discovered that Petitionen;' site plans reflect an approximately 80% lot coverage and therefore; did not comply with the conditions beld by this Court to govern development. 4. Tbe parties do not dispute that the Major Development and Conditions for Final Approval govern Petitioners' property. However, Petitioners may not selectively choose which of these conditions they wish to comply. The Conditions for Fiual Approval expressly state that there is to be a "maximum lot coverage" of 30% and Petitioners are required to confurm to these requirements. S. As this issue constitutes newly discoverecl evidence, Monroe County respectfully moves this Court to issue an. Amended Writ of Mandamus ordering that Petitioners' bulleting permit application shall be processed in accordance with all of the bulk regulations set furth in the Conditions for Pinal Approval. By ordering in the existing Writ that Momoe County merely issue Petitioners' permit, Monroe County was not given an opportunity to dctc:mJ.inc whether Petitioners' plans complied. with the remaining conditions that were not at issue in the petiti.o~ as there was a dispute as to whether Petitioners were vested as to those conditions. 6. Monroe County does not dispute that Petitioners are vested as to the conditions, but asks this Court to issue ~ amended writ clarifying 1hat Petitioners must comply with aU of these conditions, not merely the ones that are to their benefit. WHEREFOREt Respondents MONROE COUNTY respectfully pray this Court issue an amended writ as set forth above. OCT-08-03 16,15 FROM,MONROE COUNTY ATTY OFFICE ID,3052923516 PAGE 6/6 '. ,.,..--- 00.-/ '"-'" CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and cOrrect copy otthe foregoing has been served via U.S. Mail on MICHAEL HALPERN, ESQ., 209 Duval Street, lCey West, FL 33040 this 10th day of January. 2003. ~L~ Fla. Bar No. 0136964 MORGAN &. HENDRICK 317 Wbitehead Street Key West, FL 33040 305.296-5676 . 305.296.4331 - fax Kc~as@morganandhmdrick.com