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Item N02BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: July 18, 2012 Division: County Attorney Bulk Item: Yes X No _ Staff Contact: Lisa Granger 292-3470 AGENDA ITEM WORDING: Approval of a Settlement Agreement in the matter of Allen Chung & Elizabeth Redsecker v. Monroe County, 2011-CA-344-K. ITEM BACKGROUND: Mr. Chung and Ms. Redsecker own property located at 586 E. Caribbean drive on Summerland Key, Florida. As a result of a Community Flood Insurance Inspection conducted by Monroe County Floodplain the property was found to be in violation of Monroe County Floodplain Code Section 122-4 for the violation of having habitable space: a kitchen, bedrooms, bathroom, and partitions in the below base flood elevation enclosure of their home on Summerland Key. Mr. Clung and Ms. Redsecker were given one year to gain compliance with the floodplain codes before the matter would be referred to Code Compliance. Within that one year, Mr. Chung and Ms. Redsecker filed a complaint for declaratory and injunction relief in the Circuit Court. The below base flood elevation space was initially permitted as the original house. The previous owners applied for and were granted a permit to construct "another house" vertically above the original house. Because the flood zone had changed on the property and because the property is located in an IS land use district, a condition was placed on the permit that the original house be converted into storage and parking only at or before the issuance of a certificate of occupancy. Then because it was decided that the "new house" was a renovation not new construction a certificate of occupancy was determined not to be necessary. However, the county issued a final approved building inspection. At the time of the final approved inspection, it is alleged that the old house was still intact as built. It was not converted to storage or parking. The complaint requests an order barring the County from forcing the conversion of the original house to parking and storage. Mr. Chung and Ms. Redsecker have extended the enclosed settlement to the County. Under the terms of the settlement, the original house can remain until it is damaged, destroyed or improved at which time the use and structure would have to be brought into compliance (meaning conversion to parking and storage). Under the terms of the settlement, the entire structure is non -confirming. Thus improvements to the "new house" would be limited to 50% of the market. The use of the property would be restricted to a single family home and Mr. Chung and Ms. Redsecker will sign and file a restrictive covenant restricting the property to a single family residence. Due to the permitting history of this property and the fact that the violation was caused and not corrected by the previous owner without knowledge of Mr. Chung and/or Ms. Redsecker, the recommended action is approval of the settlement. PREVIOUS RELEVANT BOCC ACTION: None CONTRACT/AGREEMENT CHANGES: N/A STAFF RECOMMENDATIONS: APPROVAL TOTAL COST: n a INDIRECT COST: BUDGETED: Yes No DIFFERENTIAL OF LOCAL PREFERENCE: COST TO COUNTY: n/a REVENUE PRODUCING: Yes X SOURCE OF FUNDS: AMOUNT APPROVED BY: County Atty xH OMB/Purchasing _ Risk Management DOCUMENTATION: DISPOSITION: Revised 7/09 Included X Not Required AGENDA ITEM # This instrument was prepared by: Lee Robert Rohe, Esquire 25000 Overseas Highway Summerland Key, Florida 33042 SINGLE FAMILY RESTRICTIVE COVENANT TO PROHIBIT DUPLEX OR MULTI -FAMILY USE WHEREAS, ALAN CHUNG, a single man and ELISABETH REDSECKER, a single woman, as undersigned are the sole owners of the following described real property located at 586 East Caribbean Drive, Summerland Key, Florida 33042 in Monroe County, Florida and legally described as follows: Lot 7 and Lot 8 less the West 2 feet thereof, Block 1, SUMMERLAND KEY COVE, ADDITION NO.6, according to the Plat thereof, as recorded in Plat Book 5, page 41 of the Public Records of Monroe County, Florida. Real Estate Number: 00192740-000000 WHEREAS, the above described parcel is a single-family residence located in an Improved Subdivision (IS) land use district and was issued a Certificate of Occupancy (477080) on June 301h, 1977 as a single family residence under permit number A 13 03 and Final Approved Building and Enclosure Inspections on July 25, 1995 under permit number 941-962. NOW, THEREFORE, the undersigned agree as follows: 1. The above described residence is permitted only as a single family residence, and shall be used only as a single family residence. 2. No structural changes or interior renovations will be made to the single family residence for the use of the residence as a duplex or multi -family residence. 3. The restrictions herein shall be binding upon the representatives, heirs, assigns and successors in title of the undersigned, it being the intention of the undersigned by execution and recording of this document that this restriction shall run with the land and shall be forever binding upon the successors in title. 4. This covenant is intended to benefit and run in favor of the County of Monroe, and in the event of any breach or violation of the covenant contained herein, the said County may enforce the covenant by injunction or such other legal method, as the County deems appropriate. EXECUTED ON THIS day of )Cwp , 2012. WITNESSES as to Both Owners: l.La��I Y. O— Witness #1 Signature SUS 0nL. Ccke- -? d�uP'^seatKey Witness #1 Printed Name and rL 330,q Address Witness # gnature OCAVQ C�anTag Witness # 2 Printed Name and Address25WO Uls ht'Q ai-�-MW'eOQO V--ey R . molz SWORN TO BEFORE ME THIS 29 STATE OF NEW YORK COUNTY OF ; y ALAN CHUNG, OWNER W (21-111 i✓ Npftfe for Owner REDSECKER ��;5 Ien ec`(e(' Printed Name for Owner day of JQ , 2012. The foregoing instrument was acknowledged before me this 25 day of AA -el 2012, by ALAN CHUNG, who is personally known to me or who have produced Z) L as proof of identification and did take an oath. My Commission Expires: 109/of,✓2v12 Ai'MER ELIi ROV Notary Pudic, S.-IG of NCW York ;;o. OI EL0190770 Qtial; Red in P4eFi Yor Xcinty Commission Expires Aug. 4, 26,IZ Notary Public Name (Print) Notary Public Signature SWORN TO BEFORE ME THIS 3 day of 7, 2012. STATE OF FLORIDA COUNTY OF hlo nroee The foregoing instrument was acknowledged before me this-3 K d day of Ja/y , 2012, by ELISABETH REDSECKER, who is personally known to me or who have produced as proof of identification and did take an oath. My Commission Expires: Lo (�'� Z _ co he Notary Public Name (Print) 'Notary Public Signature SUSAN L ROHE Commission DD 8D4103 Expires August 8 2012 ema�anwTmyr,�n�a..nw mio IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA KEY WEST DIVISION ALAN CHUNG and ELISABETH REDSECKER, Plaintiffs, V. CASE NO: 2011-CA-344-K MONROE COUNTY, Defendant. U STIPULATED SETTLEMENT AGREEMENT AND FINAL JUDGMENT This Agreement is entered into by and between the Plaintiffs and the Defendant regarding the Community Inspection Report dated September 8, 2010 which was necessitated by the Plaintiff s continued participation in the National Flood Insurance Program for parcel # 00192740 000000, bearing address 586 East Caribbean Drive, Summerland Key, Florida 33042 and the Circuit Court Case herein, Case No. 2011-CA- 344-K. The parties having a desire to amicably resolve their differences that have given rise to this litigation hereby agree to the following terms and conditions: 1. Plaintiffs and Defendant Monroe County hereby agree to the following settlement: (a) The elevated "house" (the structure above the original ground -level house) shall not be extended, expanded or structurally altered in a substantial manner ("substantial manner" means exceeding 50% of market value) as defined in Monroe County Code Section 122-3 unless and until the original structure (below the base flood elevation lower level of the T house) is brought into compliance with Monroe County Floodplain codes. Additionally, the original structure (below the base flood elevation lower level of the house) shall not be expanded or improved or repaired from damages of any origin. If this agreement becomes unacceptable to FEMA then the agreement will be re -visited by both parties. (b) Plaintiffs agree that use of their single-family house at 586 E. Caribbean Drive, Summerland Key, Florida will be restricted by restrictive covenant to single-family use only. Said restrictive covenant is attached hereto as Exhibit A. The Plaintiffs shall record the restrictive covenant with the Clerk of Court in the Monroe County Official Public Records within 5 calendar days of the date of this agreement and shall provide a certified filed copy to the Defendant within 5 calendar days of filing. (c) Both Plaintiffs and Defendant acknowledge that a prior owner of the property did not convert what is now the below base flood elevation lower level of the house (the "original house") to storage and parking only, as promised, upon obtaining a permit from Defendant for a vertical addition to the original ground -level house. Plaintiffs and Defendant acknowledge that upon completion of the vertical addition to the house on July 25, 1995, the Monroe County Building Department inspected the premises and approved the final building inspection, (d) At the time prior to when the vertical addition was constructed, the property had been a ground -level home with its floor located at the then 0 controlling base flood elevation of eight feet above mean sea level. The original house was built in 1976-77. Subsequent to construction of the original house in 1976-77, FEMA established a higher base flood elevation for Plaintiffs' property and surrounding properties rendering the original house non -conforming. (e) At the time Plaintiffs purchased the property on October 26, 2000, they had no knowledge of the property's history as set forth above. (f) The Defendant recognizes that the elevated house is lawful and not non -conforming. As long as the below base flood elevation structure ("original house") remains then the elevated house cannot be expanded, improved or repaired or structurally altered beyond 50% of its market value. The below base flood elevation lower level structure is a non- conformity both in current use and construction. The use and structure may remain as it is now until such time as it is damaged or destroyed or improved pursuant to Monroe County Code 122-4 (a)(9). (g) The Plaintiffs agree that the below base flood elevation lower level cannot be improved or repaired other than for a permit to remedy a life safety hazard unless the structure is brought into compliance with Monroe County Code Chapter 122. The below base flood elevation lower level may be maintained in its present state. Plaintiffs may make only those repairs necessary to correct safety violations when necessary and with proper permits to maintain the below base flood elevation lower level in a safe condition. (h) The parties hereto warrant each to the other that they have the lawful authority to enter into this Agreement and be bound by this Agreement and hereby stipulate that they shall be estopped to claim otherwise. (i) In the event either party is required to initiate legal proceedings to enforce the terms of this Settlement Agreement, the prevailing party shall be entitled to an award of reasonable attorneys' fees and costs of suit. 0) In settlement of these proceedings, each party shall bear its own attorneys fees and costs. The parties have no objection to the entry of the below Stipulated Final Judgment, without notice or hearing, which incorporates the terms and agreements set forth herein, and which reserves jurisdiction to enforce the terms of this Stipulated Final Judgment. The Stipulated Final Judgment is set forth below and incorporated herein. The effective date of this Stipulated Settlement Agreement and The Stipulated Final Judgment shall be the date on which it is entered by the Court. PLAINTIFF ALAN CHUNG , Z r 2 By� L` w Notary Public Dated: 6 �2 Zat Rr ; R LtZ..A'Rov Notary P.; lie, Stote of Qd�xwrYork V,G. O1 WV�;77J Quaid.-.4 in ?tq,.,,n Yoi.'� County ComiWovi ices Aug. 4, 20 CZ :ER tl) A z Notary Public SUSAN L ROH �•. := Corrur>l WM 00 804103 Expires Augud 8, 2012 YaiddlMiTAp Fii 17iMrp 100.3167H/ :7 Dated: J« 3 (SEAL) Attest: DANNY L. KOLHAGE, Clerk I0 Deputy Clerk Dated: DEFENDANT MONROE COUNTY Dated: Mayor David Rice IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA KEY WEST DIVISION ALAN CHUNG and ELISABETH REDSECKER, Plaintiffs, V. CASE NO: 2011-CA-344-K MONROE COUNTY, Defendant. STIPULATED FINAL JUDGMENT It is hereby ORDERED AND ADJUDGED as follows: 1. The Stipulation Settlement Agreement entered into by and between the parties, attached hereto and incorporated herewith, be and is hereby APPROVED by this Court; 2. The parties shall abide by the terms and conditions of this Stipulated Settlement Agreement and Final Judgment and this Court reserves and retains jurisdiction for the entry of any and all further orders necessary to enforce all terms and conditions of the Stipulation Settlement Agreeement. DONE AND ORDERED in Chambers at Key West, Monroe County, Florida this day of 2012. MARK H. JONES, CIRCUIT JUDGE C Copies to: All Counsel of Record