Item Q6
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date:
3/16/05 -MAR
Division:
County Attorney's Office
Bulk Item: Yes ~ No
Department: County Attorney's Office
Staff Contact Person: Bob Shillinger
AGENDA ITEM WORDING:
Approval of settlement agreement in Sierra Club, John Wade, & Monroe County (intervenor) v. DCA
& Miami..JJade County.
ITEM BACKGROUND: Community activists challenged a change in Dade County's comprehensive
plan which would have permitted expanded growth around Krome Avenue. The County intervened on
the side of the challengers. An agreement regarding all issues has been reached.
PREVIOUS RELEVANT BOCC ACTION: On August 20, 2003, the Board authorized intervention
by a 4-0 vote, with one abstention, in Resolution 341-2003.
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS:
Special Land Use Counsel Derek Howard of Morgan & Hendrick recommends approval.
TOTAL COST:
N/A
BUDGETED: Yes
No
COST TO COUNTY:
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes
No
AMOUNTPERMONTB_ Year
APPROVED BY: County Atty _ OMBlPurchasing _ Risk M agement _
DIVISION DIRECTOR APPROVAL:
J
DOCUMENTATION:
Included X
Not Required
DISPosmON:
AGENDA ITEM #
Revised 2/05
Hugh J. Morgan
James T. Hendrick
Robert Cintron, Jr.
Derek V. Howard
LAW OFFICES
MORGAN & HENDRICK
317 Whitehead Street, Key West, Florida 33040
Telephone 305.296.5676
Facsimile 305.296.4331
W. Curry Harris
(1907-1988)
Hilary U. Albury
(1920-1999)
February 2, 2005
VIA FACSIMILE
Mr. Robert Shillinger, Esq.
Assistant County Attorney
502 Whitehead Street
Courthouse Annex, 3rd Floor
Key West, FL 33040
Re: Krome Avenue (Case No. 03-0150GM)
Dear Bob:
The parties in the above-referenced matter have finalized the proposed stipulated
settlement agreement, which needs to go before the Board of County Commissioners for formal
approval. I am enclosing a copy of the proposed agreement.
The board of Miami-Dade County will consider the proposed agreement at its meeting on
March 1, 2005. We therefore need to set the proposed agreement on our board's agenda for
February or March.
If you have any questions regarding this or any other matters, please do not hesitate to
contact me.
Yours truly,
~
Derek Howard, Esq.
~
Enclosure
cc: Timothy McGarry (w/encl.)
RECEIVED
FEB 0 42005
MONROE COUNTY ATTORNP
WHEREAS, pursuant to Section 163.3184(9)(a), Florida Statutes, Petitioners initiated the
above-styled formal administrative proceeding alleging that Application 16 of the Plan Amendment is
not "in compliance" with Chapter 163, Florida Statutes (the "Petition"); and
WHEREAS, Monroe County filed a petition to intervene in this action and adopted the
Petition, and the Administrative Law Judge granted the petition to intervene on December 16, 2003;
and
WHEREAS, Respondents dispute the allegations ofthe Petition; and
WHEREAS, the parties wish to avoid the expense, delay, and uncertainty oflengthy litigation
and to resolve this proceeding under the terms set forth herein, and agree it is in their respective
mutual best interests to do so,
NOW, THEREFORE, in consideration ofthe mutual covenants and promises set forth herein,
and in consideration of the benefits to accrue to each of the parties, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby represent and agree as follows:
GENERAL PROVISIONS
1. Definitions. As used in this agreement, the following words and phrases shall have the
following meanings:
a. Act: The Local Government Comprehensive Planning and Land Development
Regulation Act, as codified in Part II, Chapter 163, Florida Statutes
b. Agreement: This Settlement Agreement
c. Department or DCA: The Florida Department of Community Affairs
d. DOAH: The Florida Division of Administrative Hearings
e. In compliance or into compliance: The meaning set forth m Section
163.3184(1 )(b), Florida Statutes
f. Intervenor: Monroe County
2
g. Notice: The notice of intent issued by the Department to which was attached its
statement of intent to find the Plan Amendment in compliance, attached hereto as Exhibit A
h. Petition: The Petition for Formal Administrative Hearing filed by Sierra Club and
John S. Wade, Jr., and adopted by Monroe County
1. Petitioners: Sierra Club and John S. Wade, Jr.
J. Plan Amendment: The October 2001-02 Cycle Applications to Amend the Miami-
Dade County Comprehensive Development Master P~ adopted as Ordinance No. 02-198
on October 10,2002
k. Remedial Action: Adoption ofthe Remedial Plan Amendment.
1. Remedial Plan Amendment: An amendment to the plan, which the local
government must adopt to complete the Remedial Action. A Remedial Plan Amendment
adopted pursuant to this Agreement must, in the opinion of the Department, be consistent
with and substantially similar in concept and content to the language attached hereto as
Exhibit B, or be otherwise acceptable to the Department.
m. Support Document: The studies, inventory maps, surveys, data, inventories,
listings or analyses used to develop and support the Plan Amendment or Remedial Plan
Amendment.
2. Department Powers. The Department is the state land planning agency and has the power
and duty to administer and enforce the Act and to determine whether the Plan Amendment is in
compliance.
3. Negotiation of Agreement. The Department issued its Notice ofIntent to find the Plan
Amendment in compliance. Petitioners and Intervenor filed Petitions challenging Application 16 of
the Plan Amendment. The parties conferred and agreed to resolve the issues in the Petition through
this Agreement. It is the intent ofthis Agreement to resolve fully all issues between the parties.
3
4. Dismissal. If Miami-Dade County completes the Remedial Action required by this
Agreement, the Department shall issue a Notice ofIntent addressing the Remedial Plan Amendment.
The Department shall file the Notice of Intent with DOAH. If Miami-Dade County adopts the
Remedial Plan Amendment in the form set forth in Exhibit B, the Parties shall file a joint request for
DOAH to relinquish jurisdiction to the Department for dismissal of this proceeding or for realignment
of the parties, as appropriate under Section 163.3184(16)(f), Florida Statutes. Petitioners and
Intervenor shall not challenge a determination that the Plan Amendment and the Remedial Plan
Amendment are in compliance; provided, however, that if Miami-Dade County adopts a Remedial
Plan Amendment in a form other than that set forth in Exhibit B, Petitioners and Intervenor reserve
their rights to challenge the Plan Amendment and Remedial Plan Amendment.
5. Description of Remedial Actions: Legal Effect of Agreement. Exhibit A to this
Agreement is a copy of the Notice of Intent, which identifies the Plan Amendment as being in
compliance. Exhibit B contains the Remedial Plan Amendment, which must be adopted for resolution
of the issues herein. Exhibits A and B are incorporated in this Agreement by this reference. This
Agreement constitutes a stipulation that if the Remedial Action is accomplished, the Plan Amendment
will be in compliance.
6. Remedial Actions to be Considered for Adoption. Miami-Dade County agrees to consider
for adoption by formal action of its governing body the Remedial Plan Amendment set forth in Exhibit
B no later than the time period provided for in this Agreement.
7. Adoption or Approval of Additional Amendment. Within 60 days after execution ofthis
Agreement by the parties, Miami-Dade County shall consider for adoption the Remedial Plan
Amendment. This may be done at a single adoption hearing. Within 10 working days after adoption
of the Remedial Plan Amendment, Miami-Dade County shall transmit 5 copies ofthe amendment to
the Department as provided in Rule 9J-l1. 0 11 (5), Florida Administrative Code. Miami-Dade County
shall also submit one each copy to the South Florida Regional Planning Council and to any other unit
4
oflocal or state government that has filed a written request with Miami-Dade County for a copy of
the Remedial Plan Amendment, and copies to Petitioners and Intervenor. The Remedial Plan
Amendment shall be transmitted to the Department along with a letter that describes the remedial
action adopted for each part ofthe plan amended, including references to specific portions and pages.
8. Acknowledgment. All parties to this Agreement acknowledge that the "based upon"
provisions in Section 163.3184(8), Florida Statutes, shall not apply to the Remedial Plan Amendment.
9. Review of Remedial Plan Amendment and Notice ofIntent. Within 30 days after receipt of
the adopted Remedial Plan Amendment, the Department shall issue a Notice oflntent pursuant to
Section 163.3184, Florida Statutes, for the adopted amendments in accordance with this Agreement.
a. In Compliance: If the adopted Remedial Plan Amendment satisfies this Agreement,
the Department shall issue a Notice of Intent addressing the Remedial Plan Amendment as
being in compliance. The Department shall file this notice with DOAH and shall move to
have this proceeding dismissed.
b. Not in Compliance: If the Remedial Plan Amendment does not satisfY this
Agreement, the Parties reserve the right to proceed to hearing in this matter.
10. Effect of Amendment. Adoption of the Remedial Plan Amendment shall not be counted
toward the frequency restrictions imposed upon plan amendments pursuant to Section 163.3187(1),
Florida Statutes.
11. Purpose of this Agreement Not Establishing Precedent. The parties enter into this
Agreement in a spirit of cooperation for the purpose of avoiding costly, lengthy and unnecessary
litigation and in recognition of the desire for the speedy and reasonable resolution of disputes arising
out of or related to the Plan Amendment. The acceptance of proposals for purposes of this
Agreement is part of a negotiated agreement affecting many factual and legal issues and is not an
endorsement of, and does not establish precedent for, the use of these proposals in any other
circumstances or by any other local government.
5
12. Approval by Governing Body. This Agreement has been approved by Miami-Dade
County at a public hearing advertised at least 10 days prior to the hearing in a newspaper of general
circulation in the manner prescribed for advertisements in Section 163 .3184( 16)( c), Florida Statutes.
This Agreement has been executed by the appropriate officer as provided in Miami-Dade County's
charter or other regulations.
13. Changes in Law. Nothing in this Agreement shall be construed to relieve any party from
adhering to the law, and in the event of a change in any statute or administrative regulation
inconsistent with this agreement, the statute or regulation shall take precedence and shall be deemed
incorporated into this Agreement by reference.
14. Other Persons Unaffected. Nothing in this Agreement shall be deemed to affect the rights
of any person not a party to this Agreement. This Agreement is not intended to benefit any third
party.
15. Attorney Fees and Costs. Each party shall bear its own costs, including attorney fees,
incurred in connection with the above-captioned case and this Agreement.
16. Effective Date. This Agreement shall become effective immediately upon final execution
by the parties.
17. Filing and Continuance. The Department shall file this Agreement with DOAH after
execution by the parties, along with a request to stay the administrative proceeding in this matter in
accordance with Section 163.3184(l6)(b), Florida Statutes.
18. Retention of Right to Final Hearing. All parties hereby retain the right to have a final
hearing in this proceeding in the event of a breach of this Agreement, and nothing in this Agreement
shall be deemed a waiver of such right. Any party to this Agreement may move to have this matter
set for hearing ifit becomes apparent that any other party whose action is required by this Agreement
is not proceeding in good faith to take that action.
6
19. Construction of Agreement. All parties to this Agreement are deemed to have
participated in its drafting. In the event of any ambiguity in the terms of this Agreement, the parties
agree that such ambiguity shall be construed without regard to which of the parties drafted the
provision in question.
20. Entire Agreement. This is the entire agreement between the parties, and no verbal or
written assurance or promise is effective or binding unless included in this document.
21. Governmental Discretion Unaffected. This Agreement is not intended to bind Miami-
Dade County in the exercise of governmental discretion, which is exercisable in accordance with law
only upon the giving of appropriate public notice and required public hearings.
22. Multiple Originals. This Agreement may be executed in any number of originals, all of
which evidence one agreement, and only one of which need be produced for any purpose.
23. Captions. The captions inserted in this Agreement are for the purpose of convenience
only and shall not be utilized to construe or interpret any provision ofthis Agreement.
In witness whereof, the parties hereto have caused this Agreement to be executed by their
undersigned officials as duly authorized.
7
SIERRA CLUB
Date
DEPARTMENT OF COMMUNITY AFFAIRS
SECRETARY
Date
Senior Attorney
8
JOHN S. WADE, JR.
John S. Wade, Jr.
Date
Senior Attorney
MONROE COUNTY
COUNTY MANAGER
Date
Attest:
Clerk
Morgan & Hendrick
County Attorney
MIAMI-DADE COUNTY
COUNTY MANAGER
Date
Attest:
Clerk
Dennis A. Kerbel
Assistant County Attorney
9
EXHIBIT B
REMEDIAL PLAN AMENDMENT
1. Interpretation of the Land Use Plan Map: Policy ofthe Land Use Element
In the "Transportation" section at 1-45, after "In particular, extension or widening...may occur only if
indicated on the LUP map," insert the following:
Miami-Dade County supports the improvement of Krome Avenue to make the
roadway safer without encouraging development in the surrounding areas that is not
contemplated by the CDMP's Land Use Plan Map, as of April 2004. Krome Avenue
was designated as a Major Roadway on the Land Use Plan Map to allow the Florida
Department of Transportation (FDOT) to prepare a study to analyze all feasible
alternatives to meet pressing public needs for the road and capacity for pre-existing
development permits and CDMP designations, and to take action consistent with such
analysis, including widening the road or any specific segment thereofup to 4 lanes and
implementing the Krome Avenue Action Plan. The designation was not made to
provide capacity for additional development permits or to support CDMP
amendments to increase development potential or densities. Krome Avenue is a state
roadway, under the jurisdiction ofFDOT. FDOT is solely responsible for maintaining
Krome Avenue and for designing and funding any improvements, modifications, or
other construction of the roadway. Miami-Dade County will not fund any additional
improvements, modifications, or other construction of Krome Avenue.
2. Future Traffic Circulation Map Series
At II-I3, after "Figure 1, Planned Year 2015 Roadway Network....where future throughways will be
located to serve future travel demand," insert the following:
Miami-Dade County supports the improvement of Krome Avenue to make the
roadway safer without encouraging development in the surrounding areas that is not
contemplated by the CDMP's Land Use Plan Map, as of April 2004. Krome Avenue
was designated as a 4-lane roadway on Figure 1 to allow the Florida Department of
Transportation (FDOT) to prepare a study to analyze all feasible alternatives to meet
pressing public needs for the road and capacity for pre-existing development permits
and CDMP designations, and to take action consistent with such analysis, including
widening the road or any specific segment thereof up to 4 lanes and implementing the
Krome Avenue Action Plan. The designation was not made to provide capacity for
additional development permits or to support CDMP amendments to increase
development potential or densities. Krome Avenue is a state roadway, under the
jurisdiction ofFDOT. FDOT is solely responsible for maintaining Krome Avenue and
for designing and funding any improvements, modifications, or other construction of
10
the roadway. Miami- Dade County will not fund any additional improvements,
modifications, or other construction of Krome Avenue.
3. Policies 3F, 3G, 3D
Replace "one mile" with ''two miles (excluding lands within the Urban Development Boundary as of
April 2004)."
4. Add Policy 31
Miami-Dade County shall support the improvement of Krome Avenue to make the
roadway safer without encouraging development in the surrounding areas that is not
contemplated by the CDMP's Land Use Plan Map, as of April 2004. Any additional
capacity or anticipated additional capacity resulting from the improvement,
modification, or other construction of Krome Avenue shall not be a basis for
additional development permits or CDMP amendments to increase development
potential or densities. The redesignation of Krome Avenue shall not be deemed to
modifY, limit or impact CDMP goals, policies, and objectives designed to preserve the
County's unique agricultural lands and natural environment. Accordingly, all county
boards, agencies, and officials shall consider impacts and compatibility of proposed
developments as required by applicable CDMP provisions and County regulations,
including, without limitation, the following CDMP policies intended to discourage
urban sprawl and development in areas designated Agriculture, Open Land, or
Environmental Protection: Policies IP, lQ, 2B, 8F, 8G, and 8H of the Land Use
Element; Policy 4C of the Transportation Element; Policies 1A and 1H of the Water,
Sewer and Solid Waste Element; and Policy 5A ofthe Capital Improvements Element.
5. Add a Policy 3J
If the Florida Department of Transportation does not determine, and inform the
County by January I, 2008, in a letter to be kept on file with the Department of
Planning & Zoning, that the segment of Krome Avenue between S.W. 136th Street
and S. W. 296th Street should be widened to more than 2 lanes, then the designation of
that segment shall revert to Minor Roadway on the Land Use Plan Map and to 2 lanes
on Figure 1, Planned Year 2015 Roadway Network, in the Future Traffic Circulation
Map Series.
11