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Item R8 BOARD OF COUNTY COMMISSIONERS Agenda Item Summary Add On Meeting Date 1/19/2005 Division County Attorney AGENDA ITEM WORDING Request for direction on development at Geiger Key Marina as It relates to PBP Marina, Inc. v. Monroe County, CA K 02-561. ITEM BACKGROUND On April 17, 2002, the Board denied PBP Marina (Geiger Key Marina)'s request to amend the land use district zoning map for that parcel from sparsely settled to recreational vehicle. Based on the public hearing transcript, the Board relied, in part, on opposition from the Navy to the proposed zoning change when it voted 4-0 to deny PBP's request. The Board also appears to have relied upon neighborhood opposition. PBP Marina appealed the Board's denial to the Circuit Court. A final hearing is set for February 17, 2005 before Judge Jones on the certiorari portion of the appeal. Because the Navy appears to have changed its position, as evidenced by Captain Scholl's December 2004 letter, legal staff requests direction on whether the Commission would like to revisit the rezoning request at a public hearing in April, the next time the Board is scheduled to meet here in Key West. PREVIOUS RELEVANT BOCC ACTION The BOCC denied the request to change zoning on 4/17/2002. CONTRACT/AGREEMENT CHANGES STAFF RECOMMENDATIONS - none. County Attorney believes he's ethically obligated to inform Board of change in circumstances underlying ongoing litigation that may affect the Board's position in the litigation. TOTAL COST none BUDGETED Yes No COST TO COUNTY SOURCE OF FUNDS APPROVED BY: County Attorney _ OMB/Purchasing! Risk Management! DIVISION DIRECTOR A PPROVAL (fo.U ~ olhcJ/,s- JOHN R. COlUNS DOCUMENTATION: To Follow! Not Required! {(f F,\ i , , (') i RECEIVED DEPARTMENT OF THE NAVY NAVAL AIR STATION PO BOX 9001 KEY WEST FL 33040-9001 DEe 1 7 2004 MONROE COUNTY ATTOR~'!:-' 11011 Ser NOISJN256 December 14, 2004 RaIf G. Brookes, Esq. Attorney for Mr. Bobby Mongelli 1217 E Cape Coral Parkway #107 Cape Coral, FL 33904 Dear Mr. Brookes: This letter is in response to your letter of January 03, 2003 and subsequent verbal requests for a statement of "non -objection" by Naval Air Station (NAS) Key West relating to your current use of the property located at Geiger Key Marina It is understood that you are presently filing a petition/application seeking approval from Momoe County to make repairs necessary in order to continue your current use of the property located at Geiger Key Marina in a safe manner. It is also understood that certain zoning restrictions are presently in place that may prevent you from making repairs to your property in the event that the property is damaged from a natural disaster, and that part of your petition/application seeks the ability to rezone for a conforming use, under such circumstances. Finally, it is understood that you wish to include a statement of "non-objection" from NAS Key West as part of your petition/application. All zoning matters, including the approval or denial of petitions/applications to build and/or repair property, rest squarely With Momoe County and the State of Florida Naval Air Station Key West makes no assertion of any authority relating to the approval or denial of such matters. However, zoning issues in and around Key West are of vital importance to the operations of this air station and garner great interest within this command and the United States Navy. The present Air Installation Compatible Use Zone (AICUZ) for NAS Key West specifically identifies the property in question, and provides the potential noise and accident data relating to the area. You have stated that the Geiger Key Marina consists of a restaurant, marina and temporary lodging, and has been in operation in such capacity since the early 1960's. You have also made clear that you are fully aware of, and understand, the present AICUZ data relating to this property. It is understood that you are not seeking to change the current use or size of the operations. at Geiger Key Marina, but rather you are simply seeking approval to make needed repairs to maintain and update the property~ In furtherance of this understanding you have volunteered to sign and record your Declaration and Restrictive Covenant Regarding Use of Land proposal which would limit the future use of the property, so that it would be compatible with operations of Naval Air Station Key West. I ," '" I l I"'C,\ i : , Based upon the above representations, NAS Key West has no objection to the present use and operation of Geiger Key Marina, nor does NAS Key West object to proposed rezoning to bring the current Geiger Key Marina uses into conforming use status so long as it is conducted with an understanding of the operating AICUZ with no increase of the existing use as set forth in paragraph (3) of the proposed restriction. Accordingly, NAS Key West does not object to Mr. Mongelli's petition to make the repairs neCessary to maintain current operations at the Marina and to ensure proper safety measures have been implemented for the safety of the patrons on the property. 'K.~ )- K. SCHOLL Commanding Officer Naval Air Station Key West Enclosures: 1. Letter from RalfBrookes, Esq. to NAS Key West dtd January 3,2003 cc. George Spehar Monroe County Commissioner 500 Whitehead Street Key West, FL 33040 George Neugent Monroe County Commissioner 25 Ship's Way Big Pine, FL 33043 Charles McCoy Monroe County Commissioner 530 Whitehead Street Key West, FL 33040 David Rice Monroe County Commissioner 9000 Overseas Hwy Marathon, FL 33040 Murray Nelson Monroe County Commissioner 99198 Overseas Hwy Key Largo, FL 33037 Monroe County Attorney 502 Whitehead Street Key West, FL 33040 Tim McGarry Mpnroe County Growth Mgmt. Ofc. 2798 Overseas Hwy Suite 400 Marathon, FL 33050 Marlene Conway Monroe County Growth Mgmt. Ofc. 2798 Overseas Hwy Suite 400 Marathon, FL 33050 2 r. " f } () i . January 3, 2003 ~){l\~tfJ~.r29sl~~~~f . ~gJ.(~JQQ~~fit~~ Captain Larry Cotton United States Department of the Navy Naval Air Facility P.O. Box 9001 Key West Florida 33040-9001 Ms. Jan Hill Southern Division, Naval Facilities Engineering Command P.O. Box 190010 . 2155 Eagle Drive North Charleston, South Carolina 29410-00 10 Dear Captain Cotton and Ms. Hill, I represent Geiger Key Marina. Over time, existing structw'es at the Marina have fallen into disrepair. The owner of Geiger Key Marina would like to make needed repairs, (for example, repair floors, decking and updated fire protection, etc...). The owner intends to limit current and future uses at the Marina to tho~ that wilf be compatible with nearby Boca Chiea Naval Air Station. As the local govemmen~ Monroe County is empowered and authorized to approve zoning, land uses and building permits at Geiger Key Marina. To resolve any potential conflicts in use before they arise in a manner that is mutually acceptable, Geiger Key Marina will agree to sign and record.with Monroe CountY a Declaration and Restrictive Covenant containing a specific list of uses that are . compatible with Boca Chiea Naval Air Station. Please review this specific list of existIng uses and respond to me with any changes or proposed revisions as soon as possible. Thank you for you assistance, .H ~ ,------- RalfBrookes, Esq. 1217 E Cape Coral Parkway ## 1 07 Cape Coral FL 33904 (239) 910-5464 phone (208) 441-5423 fax ralf{Q).ralfbrookesattomev .com www.raJtbrookesattomey.com () () DECLARATION AND RESTRICTIVE COVENANT REGARDING USE OF LAND This Declaration of Restrictive Covenant (hereinafter referred to as "Declaration"),is executed this _ day of , 200_ by GEIGER KEY MARINA, INC., its corporate successors and assigns ("Owner"), and Monroe County, a political subdivision of the State of Florida ("County"). [*and the United States Navy, if Navy prefers to be signatory) RECITALS WHEREAS, Monroe County is empowered and authorized to approve uses of the subject land; and, WHEREAS, Owner is the owner in fee simple of the real property described in EXHIBIT "A" operates current existing use(s) known as Geiger Key Marina and intends to maintain the current existing land uses as set forth in this Declaration; and WHEREAS, Owner intends to limit current and future uses of the land to land uses at Gieger Key Marina that will be compatible with Boca Chiea Naval Air Station and WHEREAS, the parties intend to execute and record this Declaration to run with the land to ensure present and future compliance with this Declaration; NOW, THEREFORE, for the benefit of the U.S. Navy and in consideration of the County's grant of building' permits and approvals and other good and valuable consideration, the parties do covenant and agree as follows:- 1. Recitals - The recitals contained above are tme and correct and incorporated herein by reference. '. 2. Purpose of this Declaration - The general purpose of this Declaration is to ensure that uses on the subject parcel will be limited to uses that the U.S. Navy and Monroe County and the Owner agrees are compatible with Boca Chiea Air Station. ; 3. Restrictions - The Owner hereby covenants and agrees and acknowledges that Gieger Key Marina shall be only used for the following uses: a. 36 recreational vehicle spaces b. 3584 square feet of commercial floor area c. 732 linear feet of seawall providing space for up to 15 boats d. 4 employee residential units of 2 bedrooms with kitchen. . All other uses allowable under the Monroe County land development regulations and comprehensive plan at Geiger Key Marina, including any density, intensity or dwelling unit credits a~ailable under ROGO be transferred off-site pursuant to any Monroe County requirements for applicable at the time of proposed transfer. -, : '~ . (J , ' () , J 4. Effectiveness of Declaration - Within fourteen (14) days after the parties have approved and executed this Declaration, theOvvn.er~hall record thiS Declaration with the Clerk of the Circuit Court, Monroe County, Florida. The terms set forth in this Declaration shall be effective on the date of fec::ording. 5. Enforcement - It is expressly understood and agreed that the teons of this Declaration shaH be binding upon and shall inure to all successors in interest to the parties to the Declaration, and shall run with the land.. The parties to this Declaration may institute any proceedings at law or equity against any person violating or threatening to violate the same or against any person allowing a violation to take place. Failure by the Owner, or the County, or other such party to continue to object to the violation or to enforce any tenn of this Declaration shall in no event be deemed a waiver of the right to do so thereafter as to the same violation or as to another occurring prior to or subsequent thereto. 6. Modifications - The Owner and County hereby expressly reserve the right to amend, rescind or modify any of the restrictions, conditions, covenants, agreements or provisions contained herein as to all or any part of by mutual written agreement between Owner (or their heirs, successors and assigns), and Monroe County. The uses allowed under this restrictive covenant can be reviewed and amended only by agreement of aU the parties and can be amended, rescinded or modified at any time only by agreement of aU the parties. All instruments executed for the purposes of annulling, waiving, amending, rescinding, or modifying any of the covenants, ~ments provisions, arid restrictions of this declaration shall be recorded in the Public Records of Monroe County, Florida. No such changes or amendments of any kind shall be made except as herein provided. No party shall have the right to unilateraIlYmake any such change or agreem~. _ 7. Duration - The declaration will contmuein effect for a period of thirty (30) years or until the foUowing changed circumstances, whichever is sooner: a. The noise, safety sensitive or restrictive areas identified in the AICUZ map are officially changed by the United States, Department of Defense to exclude or remove Geiger Key Marina froin an AICUZ : designation that precludes new development as defined in the AICUZ or Monroe County Land Development Regulations; or b. The Monroe County land development regulations and land use district map deSignation, RV (Recreational Vehicle), are officiaUy changed to aUow for additional development on Geiger Key. '. 8. Entire Agreement - This instrument represents the entire agreement between the parties, and there are no promises or understandings other than those stated herein. None of the prOvisions, teons and conditions contained in this instnunent may be added to. I "'~" I ) j ('i . ." modified, superseded or otherwise altered except by written agreement executed by the parties hereto OWNER, Typed or Printed Name Telephone Contact #: NOTARY: Sworn to and subscribed before me this day of (owner~s name and title). . 2002. by By: Notary Public PersonaJly known Identification Produced or produced Identification . Type of IN WITNESS WHEREOF, The Owner has executed this Declaration this _ day of 2002. WITNESSES Typed.or Printed Name Telephone Contact #: Typed or Printed Name Telephone Contact #: MONROE COUNTY Typed or Printed Name APPROVED AS TO FORM AND LEGAL SUFFICIENCY County Attorney '.