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Notice of Appeal ST ATE OF FLORIDA LAND AND WATER ADJUDICATORY COMMISSION IN RE: A DEVELOPMENT ORDER ISSUED BY MONROE COUNTY WITHIN THE FLORIDA KEYS AREA OF CRITICAL STATE CONCERN APPROVING AN AMENDMENT TO A DEVELOPMENT OF REGIONAL IMPACT KNOWN AS HAWK'S CAY / CASE NO. .3.: I-...;>> ~ " 0 0 <= z )> ~ r- :;u -ce' )>0 r1"1 opz --0 0 r<1 ~_; :::0 ,)' r-- " o{). U) 0 c:~;::;: ::0 z. C) :::a ...... r ::0 ~('") -- ::r f"'l1 . ;-i~ ...., C> a (") ;: f'T1 0 W ::0 w 0 NOTICE OF APPEAL The Department of Community Affairs, pursuant to Section 380.07, Florida Statutes, hereby gives notice of its appeal to the Florida Land and Water Adjudicatory Commission (FLWAC) ofa development order issued as Resolutions 037-2002 and 038-2002 on February 12, 2002 by the Monroe County Board of County Commissioners within the Florida Keys Area of Critical State Concern. Resolutions 037-2002 and 038-2002 approve an amendment to the Hawk's Cay Development of Regional Impact and were rendered to the Department on March 11,2002. The development order appealed is an approval of an amendment to the Development Order for the Hawk's Cay development which was initially issued in 1986 and subsequently amended in 1996 by County Resolution 335A-1996. The development is located in the Florida Keys Area of Critical State Concern and is being developed by Hawk's Cay Investors, Limited in Monroe County, Florida. This appeal does not involve any issue within the scope of a permitting program authorized by Chapters 161, 373, or 403, Florida Statutes, and for which a permit or conceptual approval has been obtained prior to the issuance of the development order. :z1? Respectfully submitted this / b day of April, 2002. ~~ Richard A. Lotspeich, A tant General Counsel David L. Jordan, Deputy General Counsel DEPARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing have been furnished to the persons listed below by the method indicated this /b'~y of April, 2002. ~~~ Richard A. LotspeIch By Certified MaiL Return Receipt Requested: By U. S. Mail Honorable George Neugent Mayor of Monroe County 500 Whitehead Street Key West, Florida 33040 Pritam Singh Village at Hawk's Cay, Inc. 786 Duck Key Plaza Marathon, FL 33050 Danny L. Kolhage Clerk to the Board of County Commissioners 500 Whitehead Street Key West, Florida 33040 Elizabeth C. Bowman Hopping, Green, Sams and Smith, P.A. P.O. Box 6526 Tallahassee, FL 32314 Timothy 1. McGarry, AICP Director, Growth Management Division 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 Carolyn Dekle Director South Florida Regional Planning Council 3440 Hollywood Boulevard Suite 140 Hollywood, Florida 33021 By Inter-Agency Mail: Honorable Jeb Bush Governor The Capitol Tallahassee, Florida 32399-0001 (By way of filing original with FLAW AC) Honorable Katherine Harris Secretary of State The Capitol Tallahassee, Florida 32399-0001 Honorable Bob Butterworth Attorney General The Capitol Tallahassee, Florida 32399-0001 Honorable Charlie Bronson Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0001 Honorable Robert F. Milligan Comptroller The Capitol Tallahassee, Florida 32399-0001 Honorable Tom Gallagher Insurance Commissioner The Capitol Tallahassee, Florida 32399-0001 Honorable Charlie Crist Commissioner of Education The Capitol Tallahassee, Florida 32399-0001 Gregory Munson, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, Florida 32399 IN RE: A DEVELOPMENT ORDER ISSUED BY MONROE COUNTY WITHIN THE FLORIDA KEYS AREA OF CRITICAL STATE CONCERN APPROVING AN AMENDMENT TO A DEVELOPMENT OF REGIONAL IMPACT KNOWN AS HAWK'S CAY / CASE NO. - r--..,) .~~.. c::::> ." c.! t::J c= ..-:..... ~,.. .--..> r ;v ~" ;:tIo> I"T1 o("")z -0 a f"'1~~~ ;:0 n. r- ." ClCJ. \.D 0 S 3j ;r~ ;.0 -"- . 0 :x> ;0 -l r- :<~::c :J: rrl . J> c::> (J ~ c;; 0 J> (T1 W :::0 w 0 STATE OF FLORIDA LAND AND WATER ADJUDICATORY COMMISSION PETITION OF THE FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS COMES NOW the Florida Department of Community Affairs (Department) and files its Petition pursuant to Rule 42-2.002, Florida Administrative Code (F.A.C.) and Section 380.07, Fla. Stat. (2001 ), initiating an appeal to the Florida Land and Water Adjudicatory Commission (FL WAC), of a development order issued by the Board of County Commissioners of Monroe County, Florida (County) for an amendment to a Development of Regional Impact (DRI) known as Hawk's Cay, located within the Florida Keys Area of Critical State Concern. As grounds for said appeal, the Department states the following: 1. The Department is the state land planning agency which has the power and duty to enforce and administer Chapter 380, Fla. Stat., the Florida Land and Water Management Act of 1972, and to appeal development orders to the FLW AC pursuant to Section 380.07, Fla. Stat. 2. Monroe County is a local government located in the Florida Keys Area of Critical Stste Concern. The County's address is 500 Whitehead Street, Key West, Florida 33040. 3. The developers of the DRI are Hawk's Cay Investors, Limited and Hawk's Cay Developers, Limited c/o Pritam Singh, Village at Hawk's Cay, Inc., 786 Duck Key Plaza, Marathon, 1 Florida 33050. 4. All of unincorporated Monroe County, including the location of the Hawk's Cay DRI, is within the Florida Keys Area of Critical State Concern established by section 380,0552, Fla. Stat. 5. Hawk's Cay Investors, Limited and Hawk's Cay Developers, Limited are the developers, ofthe Hawk's Cay DRI. The Hawk's Cay DRI Development Order was originally issued by Monroe County as Resolution No. 365-1986 on December 6, 1986. The original Development Order was subsequently amended on September 18, 1996, February 23, 1998, and December 8, 1999 by Resolutions 335A-1996, 086-1998, and 616-1999, respectively. 6. On October 12, 2001, Hawk's Cay Investors, Limited and Hawk's Cay Developers, Limited (hereinafter" Applicant") submitted to the County an application for a new amendment to the DRI. The application was to revise the DRI master plan to create Corridor 5 which will include 28 additional hotel units and 18 additional staff units. 7. On February 12, 2002, the Board of County Commissioners approved the application through Resolutions 037-2002 and 038-2002. These Resolutions were rendered to the Department on March 11, 2002. A copy of Resolutions 037-2002 and 038-2002 are attached to this Petition as Exhibit II A ". 8. The Hawk's Cay DRI is a multi-use development that, among other things, contains 269 hotel units (244 two-bedroom and 25 three-bedroom units), as approved in the 1996 amendment to the DR! Development Order. The Hawk's Cay DR! is located on Duck Key. 9. Policys 101.2.1 and 216.1.1 of the Plan require the County to establish a Permit Allocation System for new residential development that will limit the number of permits for new residential development to be consistent with the Future Land Use Element in order to maintain hurricane 2 evacuation clearance times at a maximum of24 hours. Policy 101.2.1 has been superseded by Policy 10 1.2.13 for an interim period of time. 10. Policy 101.2.13 requires the County to establish an interim Permit Allocation System for new residential development The interim Permit Allocation System currently limits the number of permits that can be issued each year in unincorporated Monroe County to 158. 11. This Interim Permit Allocation System is implemented through Section 9.5-120.3 of the Code which is also known as the residential Rate of Growth Ordinance or residential "ROGO." Section 9.5-120.3 provides in pertinent part that: The residential ROGO shall apply to the development of the following: (a) All residential dwelling units for which a building permit is required by this chapter and for which building permits have not been issued prior to the effective date of the ROGO allocation system, except as otherwise provided herein; and * * * 12. The term "residential dwelling unit" is defined in Section 9-5.120.1 of the Code to include hotel rooms. 13, Section 9.5-120.4(g) of the Code provides that: (g) Vested rights: Landowners with a valid, unexpired development of regional impact approval granted by the county prior to July 13, 1992, shall be exempt from the residential ROGO system. 14. The proposed amendment is inconsistent with the Monroe County Comprehensive Plan ("Plan") and Land Development Code ("Code") including, but not limited to, Policy 101.2.13 of the Plan and Sections 9-5.120.3 and 9-5.120.4 of the Code. 3 15. Pursuant to Resolution 038-2002, the County has determined that the proposed increase in units to be constructed under the proposed amendment is exempt from the residential ROGO sytem set forth in Policy 101.2,13 of the Plan and Section 9.5-120.3 of the Code, based on the County Attorney's interpretation of Section 9.5-120.4(g). 16. The proposed additional units are not exempt from ROGO, and the County's interpretation of Section 9.5-120.4(g) of the Code that would exempt these units from ROGO is incorrect The Hawk's Cay landowners do not have "a valid, unexpired development of regional impact approval granted by the county prior to July 13, 1992." The land owner does have a valid, unexpired DR! approval that was granted by the County on September 18, 1996. The valid, unexpired DR! approval authorizes no more than 269 hotel units. 17. The County's approval of the proposed additional units over and above the 269 units currently authorized without subjecting these additional units to the requirements of ROGO will undermine the integrity of the County's growth management program and will adversely add to hurricane evacuation impacts. Compliance with the Florida Keys Area Protection Act 18. No person may undertake any development within the Florida Keys Area of Critical State Concern except in accordance with Chapter 380, Fla. Stat. Subsection 380.05(16), Fla. Stat. Alocal government may approve a development of regional impact located within the Florida Keys Area of Critical State Concern only if it complies with the provisions of the Florida Keys Area Protection Act Section 380.0552 and subsection 380.06(13), Fla. Stat. Pursuant to Subsection 380.0552(7), Fla. Stat., all local governments within the Florida Keys Area of Critical State Concern are required to administer their comprehensive plans and land development regulations consistent with the principles 4 for guiding development 19. Resolutions 037-2002 and 038-2002, which approve the amendments to the Hawk's Cay DRI development order, are inconsistent with the Monroe County local comprehensive plan and land development regulations as set forth above. 20. The Resolutions are also inconsistent with the principles for guiding development in the Florida Keys as set forth in Section 380.0552(7), Fla. Stat. Specifically, they are inconsistent with the following principles for guiding development: (a) To strengthen local government capabilities for managing land use and development so that local government is able to achieve these objectives without the continuation of the area of critical state concern designation. (k) To provide adequate alternatives for the protection of public safety, and welfare in the event ofa natural or manmade disaster and for a postdisaster reconstruction plan. (I) To protect the public health, safety, and welfare of the citizens of the Florida Keys and maintain the Florida Keys as a unique Florida resource. Request For De Novo BearloS! 21. Monroe County is not an agency as defined by the Administrative Procedure Act, Chapter 120, Fla. Stat., and is not required to conduct hearings in the manner prescribed by Chapter 120, Fla. Stat. The record created during the proceeding below, including the public hearing conducted by the Board of County Commissioners of Monroe County prior to the issuance of the Resolutions approving the amendment to the Hawk's Cay DRI development order, was not full and complete regarding the issues raised herein and does not comply with the requirements of procedural due process specified in Chapter 120, Fla. Stat. The Department was not a party or a formal participant in any proceeding conducted by Monroe County in regard to the issuance of the approval for the 5 amendments to the Hawk's Cay DRI development order. WHEREFORE, the Department requests that FL W AC accept jurisdiction over this appeal and grant such relief as may be necessary and appropriate to effectuate the intent and provisions of Chapter 380, Fla. Stat., including, but not limited to the following: (A) That the cause be referred to the Division of Administrative Hearings for a formal de novo hearing so that the Department may present evidence and testimony to establish the facts asserted in its Petition; and, (B) That Resolutions 037-2002 and 038-2002, amending the Hawk's Cay DRI development order issued by Monroe County, to the extent that they approve development that is illegal and violative of the provisions of Chapter 380, Fla. Stat., be reversed and that the Commission issue a final development order in accordance with the law and the intent of Chapter 380, Fla. Stat. "tit Respectfully submitted this /6 day of April, 2002. ~~ Richard A. Lotspeich, . ant General Counsel David L. Jordan, Depu y General Counsel DEP ARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 6 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing have been furnished to ./.$ the persons listed below by the method indicated this ~ day of April, 2002. ~/2~ Richard A. Lotspeich By Certified Mail. Return Receipt Requested: Honorable George Neugent Mayor of Monroe County 500 Whitehead Street Key West, Florida 33040 Danny L. Kolhage Clerk to the Board of County Commissioners 500 Whitehead Street Key West, Florida 33040 Timothy J. McGarry, AICP Director, Growth Management Division 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 By U. S. Mail Pritam Singh Village at Hawk's Cay, Inc. 786 Duck Key Plaza Marathon, FL 33050 Elizabeth C. Bowman Hopping, Green, Sams and Smith, P.A. P.O. Box 6526 Tallahassee, FL 32314 Carolyn Dekle Director South Florida Regional Planning Council 3440 Hollywood Boulevard Suite 140 Hollywood, Florida 33021 By Inter-Agency Mail: Honorable Jeb Bush Governor The Capitol Tallahassee, Florida 32399-0001 (By way offiling original with FLAWAC) Honorable Katherine Harris Secretary of State The Capitol Tallahassee, Florida 32399-0001 Honorable Bob Butterworth Attorney General The Capitol Tallahassee, Florida 32399-0001 Honorable Charlie Bronson Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0001 7 Honorable Robert F. Milligan Comptroller The Capitol Tallahassee, Florida 32399-0001 Honorable Tom Gallagher Insurance Commissioner . The Capitol Tallahassee, Florida 32399-0001 Honorable Charlie Crist Commissioner of Education The Capitol Tallahassee, Florida 32399-0001 Gregory Munson, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, Florida 32399 8 . STATE OF FLORIDA LAND AND WATER ADJUDICATORY COMMISSION IN RE: A DEVELOPMENT ORDER ISSUED BY MONROE COUNTY WITHIN THE FLORIDA KEYS AREA OF CRITICAL STATE CONCERN APPROVING AN AMENDMENT TO A DEVELOPMENT OF REGIONAL IMP ACT KNOWN AS HAWK'S CAY CASE NO. / NOTICE OF CROSS-APPEAL HAWK'S CAY INVESTORS, LTD. and HAWK'S CAY DEVELOPERS, LTD. (collectively "Hawk's Cay"), by and through its undersigned attorneys, pursuant to Section 380.07(2), Florida Statutes (F.S.), hereby give notice of their Cross-Appeal to the Florida Land and Water Adjudicatory Commission (FL WAC) of a Development Order issued as Resolution 037-2002 on February 12, 2002, by the Monroe County Board of County Commissioners within the Florida Keys Area of Critical State Concern. Resolution: 037-2002 approves amendments to the Hawk's Cay Development of Regional Impact (DRI) Development Order. Resolution 037- 2002 was rendered to Hawk's Cay on March 18,2002. The Development Order appealed is an approval of amendments to the Hawk's Cay DRI Development Order. The Development Order was originally approved in 1986 and has been amended several times subsequently. The Hawk's Cay DR! is located in unincorporated Monroe County and also is within the Florida Keys Area of Critical State Concern. Hawk's Cay is the owner and developer of the DR!. This Cross-Appeal does not involve any issue within the scope of a permitting program governed by Chapters 161,373 or 403, F.S., and for which a permit or conceptual approval has been obtained prior to the issuance of the Development Order. Respectfully submitted this~y of April 2002. HOPPING GREEN & SAMS, P.A. U~C-~ Elizabeth C. Bowman Florida Bar No. 0319643 Gary P. Sams Florida Bar No. 134594 123 S. Calhoun Street Tallahassee, FL 32314 (850) 222-7500 Attorneys for HAWK'S CAY INVESTORS, LTD. and HAWK'S CAY DEVELOPERS, LTD. CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original and one copy of the foregoing have been filed by hand delivery with the Office of Planning & Budgeting, Executive Office of the Governor, Room 1801, The Capitol, Tallahassee, Florida 32399, and true and correct copies have been furnished to the persons listed below by the method indicated this :1..S..J.....day of April, 2002. Bv Certified Mail. Return Receipt Requested Bv U.S. Mail Honorable Charles McCoy Mayor of Monroe County 500 Whitehead Street Key West, Florida 33040 Richard A. Lotspeich Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, FL 32399-2100 Danny K. Kolhage Clerk to the Board of County Commissioners 500 Whitehead Street Key West, Florida 33040 James T. Hendrick, Esq. Morgan & Hendrick 317 Whitehead St. Key West, FL 33040-6542 2 Timothy 1. McGarry, AICP Director, Growth Management Division 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 Carolyn Dekle, Director South Florida Regional Planning Council 3440 Hollywood Blvd., Suite 140 Hollywood, FL 33021 Honorable Jeb Bush, Governor 210 The Capitol Tallahassee, FL 32399-0001 (Original filed with FL WAC) Honorable Katherine Harris Secretary of State LL 10 The Capitol Tallahassee, FL 32399-0001 Honorable Bob Butterworth Attorney General PL 01 The Capitol Tallahassee, FL 32399-0001 Honorable Charlie Bronson Commissioner of Agriculture LL 29 The Capitol Tallahassee, FL 32399-0001 Honorable Robert F. Milligan Comptroller LL 22 The Capitol Tallahassee, FL 32399-0001 Honorable Tom Gallagher Insurance Commissioner LL 27 The Capitol Tallahassee, FL 32399-0001 Honorable Charlie Crist Commissioner of Education LL 24 The Capitol Tallahassee, FL 32399-0001 Gregory Munson, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, FL 32399-0001 12;-~ C~~ Attorney 3 STATE OF FLORIDA LAND AND WATER ADJUDICATORY COMMISSION IN RE: A DEVELOPMENT ORDER ISSUED BY MONROE COUNTY WITHIN THE FLORIDA KEYS AREA OF CRITICAL STATE CONCERN APPROVING AN AMENDMENT TO A DEVELOPMENT OF REGIONAL IMPACT KNOWN AS HAWK'S CAY CASE NO. / PETITION OF HAWK'S CAY INVESTORS. LTD. AND HAWK'S CAY DEVELOPERS. LTD. HAWK'S CAY INVESTORS, LTD. and HAWK'S CAY DEVELOPERS, LTD. (hereinafter "Hawk's Cay" or "Applicant"), by and through its undersigned attorneys, file this Petition pursuant to Rule 42-2.002, Florida Administrative Code (F.A.C.), and Section 380.07, Florida Statutes (F.S.), initiating a Cross-Appeal to the Florida Land and Water Adjudicatory Commission (FL WAC) of a Development Order issued by the Board of County Commissioners of Monroe County, Florida (County) approving amendments to the Hawk's Cay Development of Regional Impact located within unincorporated Monroe County. Hawk's Cay files this Cross- Appeal to preserve its right to challenge other provisions of the Development Order if any of the additional development authorized in the Development Order is invalidated for any reason. As grounds for this Cross-Appeal, Hawk's Cay states the following: Parties 1. The Florida Department of Community Affairs ("Department") is the state land planning agency which has the power and duty to enforce and administer Chapter 380, F.S., the Florida Land and Water Management Act of 1972, and to appeal development orders to the FL WAC pursuant to Section 380.07, F.S. The Department's address is 2555 Shumard Oak Boulevard, Tallahassee, FL 32399. 2. Monroe County is a local government located in the Florida Keys Area of Critical State Concern. The County's address is 500 Whitehead Street, Key West, Florida 33040. 3. Hawk's Cay Investors, Ltd. and Hawk's Cay Developers, Ltd. are the owner and developer ofthe Hawk's Cay DR!. The Hawk's Cay address is 1200 North Federal Highway, #200, Boca Raton, Florida 33432. Donald H. Johnson at that address is the President of the General Partner of Hawk's Cay. 4. The Hawk's Cay DRI was originally approved by the Monroe County in a Development Order approved in Resolution No. 365-1986 on December 5, 1986. The proposed DRI has been amended on September 18, 1996, February 23, 1998, December 8, 1999, and September 19,2001, in County Resolutions 335A-1996, 086-1998, 616-1999, and 354-2001, respectively. 5. Pursuant to Section 380.06(19), F.S., Hawk's Cay or the "Applicant" submitted a Notice of Proposed Change (NOPC) to the DRI, dated October 12, 2001, to the County, the Florida Department of Community Affairs (DCA), and the South Florida Regional Planning Council. The NOPC proposed amendments to the DRI Development Order as previously amended. Among other things, the NOPC proposed amendments to authorize development within the DRI site of 28 additional hotel units and 18 additional affordable staff quarters units. The NOPC filed by the Applicant did not propose any amendments to the Development Order related to a wastewater or sewer utility plant located at the DRI site. This plant is owned by the Applicant and known as the Duck Key Wastewater Treatment Facility. The NOPC, as required, included draft proposed Development Order amendments in the form of a proposed County Resolution. 2 6. The 1996 amendments to the DRI Development Order contained the following condition: 12. Sewage Treatment Facility. At the County's option, the Applicant shall enter into an Agreement concerning the final disposition ofland, wastewater treatment and reuse facilities, and other appurtenances on Utility Island within one year of the adoption of the Monroe County Sanitary Wastewater Management Plan by the Board of County Commissioners. The Agreement shall detail the terms and conditions of the transfer of ownership by the Applicant to the County, at no capital cost to the County, of all land, wastewater treatment and reuse facilities, and other appurtenances on Utility Island for the siting and construction of a subregional wastewater management facility by the County. The Applicant shall have the right to use all reuse water available from the new subregional facility. Applicant shall be permitted to retain a solid waste holding area. (1996 Sewer Plant Condition) 7. Monroe County did not implement the 1996 Sewer Plant Condition within the time frame required by the 1996 Development Order Amendments. The obligations of Applicant to enter any agreement under the Sewer Plant Condition had expired without fault on the part of the Applicant by the October 12, 2002, filing of the NOPC. 8. The Monroe County Board of County Commissioners on February 12,2002, in Resolution 037-2002 approved amendments to the DRI Development Order that differed in part from those proposed by the Applicant in the NOPC. The February 12,2002, DRI Development Order amendments (hereinafter DRI Amendments) authorized the actual development of additional hotel units only after satisfaction of a new central sewer condition imposed on the Applicant. Resolution 037-2002 was rendered to the Applicant on March 18,2002. A copy of Resolution 037-2002 is attached to this Petition as Exhibit A. 3 9. The new central sewer obligation in the DRI Amendments provided as follows: 12. Wastewater Treatment Facility. Within ninety days from the effective date of the adoption of this Resolution, the Applicant shall cause Duck Key Wastewater Cooperative, Inc., to enter such agreement(s) with the Board of County Commissioners and/or the Florida Keys Aqueduct Authority ("the Agreement(s)") as may be needed to upgrade the Duck Key Wastewater Treatment Facility and extend Advanced Wastewater Treatment to the communities of Conch Key, Walker Key, Duck Key and Indies Island. Provided, however, this Development Order shall remain in full force and effect if the parties have not entered into such an agreement within ninety days so long as the Applicant is using best efforts to conclude an above-described agreement as expeditiously as possible. No building permit for the additional hotel units authorized hereby may be issued until the Agreement has been duly executed and either work has commenced thereunder or such performance and payment bonds have been provided as required by the Agreement(s). (2002 Central Sewer Condition) 10. The Applicant agreed to the imposition of the 2002 Central Sewer Condition, but contingent entirely on its ability to develop the additional 46 new units previously described. The 2002 Central Sewer Condition was both the "quid pro quo" imposed by the Monroe County Board of County Commissioners in exchange for approval of the additional 46 units and the "quid pro QUO" the Applicant was willing to provide contingent on its actual ability to construct the additional units. 11. On April 16, 2002, the Florida DCA served a Notice of Appeal and Petition (DCA Appeal) with the Florida Land and Water Adjudicatory Commission of Resolution 037-2002 (as well as a related resolution). The DCA Appeal challenged only the authorization ofthe development of 46 additional DRI units. The DCA Appeal did not challenge the 2002 Central Sewer Condition on any stated ground. The relief requested in the DCA Appeal (DCA Petition, p. 6, Paragraph (B)) is that Resolution 037-2002 "to the extent ... [it approves] development that is illegal and violative 4 of the provisions of Chapter 380, Fla. Stat., be reversed ...." Therefore, the DCA Appeal also has not sought to invalidate the 2002 Central Sewer Condition contained in the DRI Amendments. Invalidity of 2002 Central Sewer Condition 12. Absent the consent of the Applicant, the 2002 Central Sewer Condition violates the DRI statutes in Chapter 380, F.S., Florida case law, and the United States and Florida Constitutions. 13. The agreement ofthe Applicant to the 2002 Central Sewer Condition was contingent on its ability to actually construct the additional units authorized in the DRI Amendments. Should development of those additional units be invalidated for any reason pursuant to the DCA Appeal or otherwise, the Applicant asserts the invalidity of the 2002 Central Sewer Condition. 14. On its face, the 2002 Central Sewer Condition imposes obligations on the Applicant for expansion ofthe sewer plant and extension of service in order to make central wastewater service available to several locations other than the Hawk's Cay DRI site itself. The 2002 Central Sewer Condition is not related to the on-site sewer impacts of the Hawk's Cay DRI development. Hawk's Cay can fully meet the wastewater needs ofthe on-site DRI development previously authorized and additionally approved in the DRI Amendments without the new obligations in the 2002 Central Sewer Condition. 15. Section 380.06(15)(d) 1.-3., F.S. (2001), provides as follows: (1) Conditions of a development order that require a developer to contribute land for a public facility or construct, expand, or pay for land acquisition or construction or expansion of a public facility, or portion thereof, shall meet the following criteria: 1. The need to construct new facilities or add to the present system of public facilities must be reasonably attributable to the proposed 5 development 2. Any contribution of funds, land, or public facilities required from the developer shall be comparable to the amount of funds, land, or public facilities that the state of the local government would reasonably expect to expend or provide, based on projected costs of comparable projects, to mitigate the impacts reasonably attributable to the proposed development. 3. Any funds or lands contributed must be expressly designated and used to mitigate impacts reasonably attributable to the proposed development (Emphasis added.) 16. The 2002 Central Sewer Condition violates Section 380.06(15)(d), F.S. That condition is not "reasonably attributable" to the sewer or wastewater impacts of the additional 46 units located on the Hawk's Cay DRI site that were approved in the DRI Amendments; is not related to any contribution needed to mitigate the additional wastewater or sewer impacts of the additional Hawk's Cay DRI on-site development; and the 2002 Central Sewer Condition obligations are not expressly designated, or to be used for the benefit of, the additional wastewater impacts of the additional Hawk's Cay DRI on-site development. Therefore, this condition violates this statute, and the well-established Florida case law that this statute implements. 17. The 2002 Central Sewer Condition further imposes obligations that are not reasonably proportionate to the wastewater impacts of the additional Hawk's Cay DRI on-site development authorized in the DRI Amendments. Therefore, for this reason and others, this condition further violates the United States and Florida Constitutions. This constitutional issue is asserted herein for purposes of development of a record in this administrative proceeding that can be considered in any subsequent judicial consideration and review of constitutional issues. 6 Request for De Novo Hearing 18. The DCA Appeal requests a de novo hearing (~21). Hawk's Cay also requests a de novo hearing of the issue raised in this Cross-Appeal for reasons including but not limited to those stated by the Department. In particular, the record created below did not fully and completely address the issues raised herein. Hawk's Cay requests, however, that the record of the proceeding below be admitted as part of the evidence in a de novo proceeding. Request for Relief WHEREFORE, Hawk's Cay requests that FLWAC accept jurisdiction of this Cross- Appeal and grant the following relief: (A) FL W AC should refer this cause to the Division of Administrative Hearings for a formal de novo hearing; (B) If. and solely if, the DCA's Appeal or any proceeding or action should result in the reversal or other invalidation of any of the 46 additional units approved in the DRI Amendments, FL W AC also should reverse and invalidate the 2002 Central Sewer Condition, and issue a final development order so providing, in accordance with Chapter 380, F.S. (C) FL W AC should grant such other relief as is just, proper and appropriate. 7 Respectfully submitted, this -;(5L day of April, 2002. HOPPING GREEN & SAMS, P.A. --&4-~L,.~ Elizabeth C. Bowman Florida Bar No. 0319643 Gary P. Sams Florida Bar No. 134594 123 S. Calhoun Street Tallahassee, FL 32314 (850) 222-7500 Attorneys for HAWK'S CAY INVESTORS, LTD. and HAWK'S CAY DEVELOPERS, LTD. CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original and one copy of the foregoing have been filed by hand delivery with the Office of Planning & Budgeting, Executive Office of the Governor, Room 1801, The Capitol, Tallahassee, Florida 32399, and true an~ect copies have been furnished to the persons listed below by the method indicated this :2 y of April, 2002. Bv Certified Mail. Return Receiot Requested Bv U.S. Mail Honorable Charles McCoy Mayor of Monroe County 500 Whitehead Street Key West, Florida 33040 Richard A. Lotspeich Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, FL 32399-2100 Danny K. Kolhage Clerk to the Board of County Commissioners 500 Whitehead Street Key West, Florida 33040 James T. Hendrick, Esq. Morgan & Hendrick 317 Whitehead St. Key West, FL 33040-6542 8 Timothy J. McGarry, AICP Director, Growth Management Division 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 Carolyn Dekle, Director South Florida Regional Planning Council 3440 Hollywood Blvd., Suite 140 Hollywood, FL 33021 Honorable J eb Bush, Governor 210 The Capitol Tallahassee, FL 32399-0001 (Original filed with FL WAC) Honorable Katherine Harris Secretary of State LL 10 The Capitol Tallahassee, FL 32399-0001 Honorable Bob Butterworth Attorney General PL 01 The Capitol Tallahassee, FL 32399-0001 Honorable Charlie Bronson Commissioner of Agriculture LL 29 The Capitol Tallahassee, FL 32399-0001 Honorable Robert F. Milligan Comptroller LL 22 The Capitol Tallahassee, FL 32399-0001 Honorable Tom Gallagher Insurance Commissioner LL 27 The Capitol Tallahassee, FL 32399-0001 Honorable Charlie Crist Commissioner of Education LL 24 The Capitol Tallahassee, FL 32399-0001 Gregory Munson, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, FL 32399-0001 ~L.d'~ Attorney 9 RESOUITION NO. 037 -2002 o cr o u W Q: 0: o La... o W ...J La... U) N l.lJ oe( (::J --J -c( ."'" :r:....>= _Jut- 2ciz .r_ _ ::l ':..10 --J .W >-::.:: --JW 2:wO :r. a::: < z (:) 0 r A RESOLUTION BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY FLORIDA, APPROVING AMENDMENTS TO THE DEVELOPMENT OF REGIONAL IMP ACT (ORl) DEVELOPMENT ORDER, RESOLUTION NO. 365-1986, AND MODIFICATIONS TO THE MAJOR DEVELOPMENT APPROVAL POR THE HA WK'S CAY EXPANSION DRI; PROVIDING FOR AN EFFECTIVE DATE x: c:c ...3' I a= cr :c '" ~ c:::> ...... WHEREAS, on December 5, 1986. after a public hearing, the Monroe County Board of County Commissioners (Board), adopted Resolution No. 365-1986, a Development Order issued under Chapter 380, Florida Statutes (F.S.), for a Development of Regionallmpact (DRI) known as the Hawk's Cay Expansion DRI; and WIIEREAS, on September 24, 1986, the Monroe County Zoning Board recommended that the Board approve the amendments to the DRI and Major Development for the Hawk's Cay Resort; and WHEREAS, on September 18, 1996; February 23, 1998; and December 8, 1999; the Monroe County Board of COlDlty Commissioners approved amendments to the DR! and Major Development in Resolution Nos. 335A-1996, 086-1998, 616-1999, and respectively; and WHEREAS, on October 12, 2001, Hawk's Cay Investors, Limited, and Hawk's Cay Developers, Limited (hereinafter Applicant), proposed a non-substantial change pursuant to Section 380.06(19)(e) 2., F.S. to the 1986 DRI Development Order, as amended, by filing a Notice with Monroe County, the South Florida Regional Planning COlmcil, and the Department of Community Affairs in accordance with Section 380.06(19);F.S.; and WHEREAS, the Applicant proposes to revise the DRI master plan for the DRI as approved to create Corridor 5 which will include an additional 28 hotel units and 18 new staff units; and WHEREAS, on October 12, 2001, the Applicant also filed an application for modifications to the 1986 Major Development (hereinafter modifications), as previously amended; and WHEREAS, during the I.cview process, the Monroe County Planning Commission, after due notice and public participation in the hearing process, reviewed the proposed amendments and modifications to the DRI and M~or Development; and WHEREAS, on February 6, 2002 the Planning Commission recommended approval of the proposed changes and modifications to the DRI and Major Development; and WHEREAS, the Monroe County Board of County Commissioners (Board) is the localtgovernment body having jurisdiction over the review and approval of the DR!, in accordance with Section 380.06, F.S. (2000); and _H Page 1 of4 02n.7/02 1 nitials EXHIBIT A WHEREAS, the public notice requirements of Monroe County for consideration of the proposed change have been made; and WHEREAS, the public was afforded an opportunity to participate in the public hearing and all parties were afforded the Opp(.t1tmity to present evidence and argument on all issues: and WHEREAS, the Board has reviewed the above referenced documents, the related recommendations of the Planning Commission, as well as all related testimony and evidence submitted by the parties and members of the general public; NOW, THEREFORE, BE IT RESOLVED BY THE MONROE COUNTY BOARD OF COUNTY COMMISSIONERS, MONROE COUNTYt FLORIDA: Section 1. The changes proposed by the Applicant in its DRI notification, as modified hereby, do not constitute a substantial deviation pursuant to Section 380.06(19). F.S. Section 2.Resolution No. 365.1986, the 1986 DRI Development Order, as previously amended, for the Hawk's Cay Expansion DRI, shall be further amended as follows: (New language is underlined; deleted language is striekeR through) Amendments to Resolution No. 365-1986. as amended .. 1. Substitute revised Master Develoument Plan dated December 14. 2001 attached hereto for the June 12.2001 revised Master Develoument Plan. attached to the Develoument Order as Exhibit One and referenced in Condition 1.12. 2. Revise the third "WHEREAS" clause as follows: WHEREAS, Hawks Cay Resort when completed will be a hotel type destination resort consisting of 44+ 493 hotel suites, conference facilities, retail areas, restaurants, and recreational facilities on approximately 58.8 acres of land located in unincorporated Monroe County, Florida on Indies Islands at Duck Key; and 3. And three new "WHEREAS" clauses immediately after the third "WHEREAS" clause as follows: WHEREAS. Monroe County has experienced a severe shortal!e of affordable housing and the number of affordable housinl! units that can be built is limited under the Monroe County Year 2010 Comurehensive Plan: and WHEREAS. the Applicant uroposes to build eighteen (18) new staff units for use as affordable housing: and WHEREAS. the Developer has al!reed to cause Duck Key Wastewater Coooerative. Inc.. to enter into an agreement providina substantial public benefit by expanding wastewater treatment facilities to communities otherwise not served. including Conch Key, Walker Key. Duck Key and Indies Island; and Page 2 of 4 02fl7/02 Initials 4. Revise Condition 1.12 as follows: The land use approved by this development order shall be on the Master Development Plan attached hereto as Exhibit 1 for the DR} development located at Duck Key. Badi of these exmlJits are This exhibit is incorporated into this Development Order; provided however. that the Land Use Summary on the Master Development Plan shall control as to the amount and type of approved development at Duck Key. 5. Revise Condition 9.1a. as follows: The Applicant may construct a maximum of ~ 22Lguest units consisting of combinations of no more than m 642 bedrooms and ~54.5 bathrooms at Duck Key. These numbers exclude the 178 hotel units not subject to DR! review. In addition. there are 18 "affordable hotel staff auarters" units added pursuant to the chanl!es prooosed on October 12. 2001. which the Applicant may construct a maximum of three donn-style units with the remaining units built as cottalZes consistinl! of no more than 36 bedrooms and 27 bathrooms. For purposes of this development order. those "affordable hotel staff quarters" shall be defined as new rental units that are restricted to (I) 8 maximum monthly rent of 30 percent of the median adiusted i!TOSS annual income for households within Monroe County divided by 12; and (2) units exclusively housiml: Hawk's Cay resort staff. Prior to the issuance of any certificate of occupancy for any structure containing the staff auarters. a restrictive covenant(s) ronnin2 in favor of and enforceable by Monroe County shall be tiled in the official records of Monroe County. The covenant(s) shall be effective for thirtv (30) years but shall not commence nmnimz until a certificate of occupancy has been issued by the building official for the staff quarters units to which the covenant or covenants apply. 6. Revise Condition 9.1h as follows: All new guest units constructed shall adhere to one of the architectural styles and one of the representative floor plans depicted in Attachment G2 10 the "Hawk's Cay Expansion Project Community Impact Statement" updated May 20, 1997, or submitted as Supplemental Attachment G2 with the Notification of Proposed Change to a Previously Approved DR! for the Hawk's Cay DR! dated December 1997, or submitted as Second Supplemental Attachment 02 with the Notification of Pro DOsed Chanl!e to a Previously Aooroved DR} for the Hawks Cay DR! dated November 27. 20ot. 7. Revise Condition 12 by deleting all existing language, except for the last sentence and replacing it with the following: Wastewater Treatment Facility. Within ninety days from the effective date of the adoption of this Resolution. the Applicant shall cause Duck Kev Wastewater Cooperative. Ine.. to enter such al1Ieement(s) with the Board of County Commissioners and/or the Florida Keys Aqueduct Authority ("the A2feement(s)") as may be needed to upgrade the Duck Key Wastewater Treatment Facility and extend Advanced Wastewater Treatment to the communities of Conch Key. Walker Key. Duck Key and Indies Island. Provided. however. this Development Order shall remain in full force and effect if the parties have not entered into such an aRreement within ninety days so long as the Applicant is using best efforts to Page 3 of4 03/01/02 Initials conclude an above-described 81l.feement as ex~editiously as possible. No building permit for the additional hotel units authorized hereby may be issued until the Asrreement has been duly executed and either work has commenced thereunder or such performance and payment bonds have been provided as required by the AVl'eement(s). 8. Add new Special Conditions in Section 13 as follows: The AopJicant and all successors in interest shall hereby relinQUish any and all rights to seek vesting or any other means to reclaim units contemplated by the ori~inal Development of RelJionaJ Impact IDR]). This DR] amendment sl1all constitute the final and maximum number of units. which may exist pursuant to this DRI. Section 3. The Major Development modifications, including . the revised Master Development Plan dated December 14,2001, as proposed by the Applicant on October 12,2001, are also approved. Section 4. Those provisions of the DRI Development Order, Resolution No. 365-1986, as amended, and the Major Development approval, as amended, which are not further amended by this Resolution shall remain in full force and effect Section 5.A certified copy of this Resolution, with all exhibits, shall be furnished by the County by certified mail, return receipt requested, to the Applicant, the South Florida Regional Planning Council, and the Florida Department of Community Affairs within 10 days of its adoption by the Board. SectioD 6. The Applicant shall record a notice of this Resolution pursuant to Section 380.06(15), F.S. (2000). Section 7. This Resolution shall take effect upon its adoption. PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Flori_~ at a regular meeting held on the 121h day of February, 2002. Mayor Charles "Sonny" McCoy Mayor Pro Tern Dixie Spehar Commissioner Murray Nelson Commissioner George Neugent Commissioner Nora Williams ~ m , absent "-'yes yg By: SIONERS OF .A :, A To..' Kolhage, Clerk ByJhI1UC Lf1'i0A~ Deputy Clerk ./ BOARD OF COUNTY MONROE COUNTY, -:' ".. .)1: Mayor/Chmperson.""" gy Page 4 of 4 02/27102 Ini tials ~ ! I o ~ ~ . ~ " p u 00 01" ,,~ ;lz i" ."'1' :':'.l; !~l' i ;; i.~ i .. . !;~ ~ii ~j~ 1; ;. ~ ; . ; If :. r~ ~ ! : :~: I~ i !~~!! I i r"n . I 1111. J , ! H ~ . III ::; h1 'tJ r- iI:: ~)> ':.'e9.~ ... ~ ~"'''s .. ~ ~ ~., ~ . 'i' · ~ !i:.: n !iI. ~ .. .....: ',: ;.11"'8, · "l .: 0'0 "II. ~ 1:i!!iI!f{l!I'IIIH!lf!;H[ ~~ ~J ~h! ~Si Q ~~ lIh{:, ~' ~ . ~I\!;l!;ji' lj 1'1:lI'li','ij ~l tl.!!~al! ~ hill, "",,= . ~. 111:11' II I I..~ .... .. 2Y~o CI ~ )> !2 'Q _ J.,. ~ % I' ,PI: I! IItlll ii ~~.o':!t:~~~a. ,......~ ii '!g. !i i,'\\p1Ih'ill' I"" ~ Hl" 0'".. . 111I"I"II'II:lllirl~~ n: ~~i ~~ ~ ~ , . . '1111' \ I q 11.1 . !hl!" ~t' f!= Z r- 0 I I. 01, I, ..J ~~ = 'I )>)> I". Vv g ~!: f;: Z . "tJ " ~ .". ..- 2. 1\1 : U~~:~;~ il IPlllllil\ll ",,1. I' t l!i'=II(, H 11111'1 I 'I ' .. ; if f I = '- ,.E II' I~ . . f II! Ii Ii In il! ji ~ Iii I I q I I Ii; I i : I ~ \ , .. . ! y;. !!! !! : I ,. . I II III I " 11 '" STATE OF FLORIDA LAND AND WATER ADJUDICATORY COMMISSION IN RE: A DEVELOPMENT ORDER ISSUED BY MONROE COUNTY WITHIN THE FLORIDA KEYS AREA OF CRITICAL ST ATE CONCERN APPROVING AN AMENDMENT TO A DEVELOPMENT OF REGIONAL IMP ACT KNOWN AS HAWK'S CAY CASE NO. APP-02-00 1 / RESPONDENT HAWK CAY'S UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE ANSWER AND/OR MOTION IN OPPOSITION TO PETITION HAWK'S CAY INVESTORS, LTD. and HAWK'S CAY DEVELOPERS, LTD. (collectively "Hawk's Cay"), by and through its undersigned attorneys, pursuant to Rule 28- 106.204, Florida Administrative Code (F.A.C.), file this unopposed motion for extension of time for Hawk's Cay to file its answer and/or motion in opposition to the Petition of appeal by the Florida Department of Community Affairs. In support of this motion, Hawk's Cay states as follows: 1. The Florida Department of Community Affairs (Department) on April 16, 2002, by regular U.S, Mail served a Notice of Appeal and Petition on the undersigned attorneys for Hawk's Cay. The Petition appealed resolutions (Resolutions 037-2002 and 038-2002) of the Monroe County Board of County Commissioners dated February 12, 2002 that approved amendments to the Hawk's Cay Development of Regional Impact (DRI) development order (DO). The undersigned received the Petition on April 19, 2002. 2. Since service of the Petition, agents of Hawk's Cay and representatives of the Department and the County have entered discussions to expeditiously resolve the issues raised in the Department's Petition. 3. Hawk's Cay requests an extension oftime to May 31,2002, in which to serve its answer and/or motion in opposition to the Department's Petition pursuant to Rule 42-2.004, F.AC. 4. The undersigned has conferred with counsel for the Department and Monroe County and is authorized to represent that neither party has any objection to granting Hawk's Cay an extension oftime to May 31,2002, in which to file and serve an answer and/or motion in opposition to the Department's Petition. 5. This extension of time will give the parties time in which to resolve and settle the issues in the Department's Petition without necessity of an evidentiary hearing by the Division of Administrative Hearings and other consideration by the Florida Land and Water Adjudicatory Commission (FL WAC). This will conserve public and private resources, time and energy that might otherwise need to be devoted to the responsive pleadings. WHEREFORE, Hawk's Cay requests that FLWAC or the Secretary of the Commission expeditiously enter an order granting Hawk's Cay an extension oftime until May 31, 2002 in which to file its answer and/or motion in opposition to the Department's Petition. 2 Respectfully submitted thi~ of May 2002. HOPPING GREEN & SAMS, P.A. ~~~ C, ,-I?.A~J'-- Elizabeth C. Bowman Florida Bar No. 0319643 Gary P. Sams Florida Bar No. 134594 123 S. Calhoun Street Tallahassee, FL 32314 (850) 222-7500 Attorneys for HAWK'S CAY INVESTORS, LTD. and HAWK'S CAY DEVELOPERS, LTD. CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original and one copy of the foregoing have been filed by hand delivery with the Office of Planning & Budgeting, Executive Office of the Governor, Room 1801, The Capitol, Tallahassee, Florida 32399, and true and correct copies have been furnished to the persons listed below by the method indicated thi~ of May, 2002. By U.S. Mail Honorable Charles McCoy Mayor of Monroe County 500 Whitehead Street Key West, Florida 33040 Richard A. Lotspeich Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, FL 32399-2100 Danny K. Kolhage Clerk to the Board of County Commissioners 500 Whitehead Street Key West, Florida 33040 James T. Hendrick, Esq. Morgan & Hendrick 317 Whitehead St. Key West, FL 33040-6542 3 Timothy J. McGarry, AICP Director, Growth Management Division 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 Carolyn Dekle, Director South Florida Regional Planning Council 3440 Hollywood Blvd., Suite 140 Hollywood, FL 33021 Honorable Jeb Bush, Governor 210 The Capitol Tallahassee, FL 32399-0001 (Original filed with FLW AC) Honorable Katherine Harris Secretary of State LL 10 The Capitol Tallahassee, FL 32399-0001 Honorable Bob Butterworth Attorney General PL 01 The Capitol Tallahassee, FL 32399-0001 Honorable Charlie Bronson Commissioner of Agriculture LL 29 The Capitol Tallahassee, FL 32399-0001 Honorable Robert F. Milligan Comptroller LL 22 The Capitol Tallahassee, FL 32399-0001 Honorable Tom Gallagher Insurance Commissioner LL 27 The Capitol Tallahassee, FL 32399-0001 Honorable Charlie Crist Commissioner of Education LL 24 The Capitol Tallahassee, FL 32399-0001 Gregory Munson, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, FL 32399-0001 ~..~ ~~~ Attorney 4 STATE OF FLORIDA LAND AND WATER ADJUDICATORY COMMISSION IN RE: A DEVELOPMENT ORDER ISSUES BY MONRO COUNTY WITHIN THE FLORIDA KEYS AREAS OF CRITICAL STATE CONCERN APPROVING AN AMENDMENT TO A DEVELOPMENT OF REGIONAL IMP ACT KNOWN AS HAWK'S CAY CASE NO. APP-02-001 / ORnRR GRANTING UNOPPOSRn MOTION FOR RXTRNSION OF TIMR TO FlI,R ANSWRR ANn/OR MOTION IN OPPOSITION TO PRTITION This cause came on for consideration by the Secretary of the Florida Land and Water Adjudicatory Commission upon an Unopposed Motion for Extension of Time to File Answer and/or Motion in Opposition to Petition filed by Hawk's Cay Investors, Ltd., and Hawk's Cay Developers, Ltd. The unopposed motion for extension of time is hereby granted to May 31, 2002, as requested. DONE AND ORDERED this &~ay of May, 2002, in Tallahassee, Florida. ~o.~ 1) DONNA ARDUIN, Secretary Florida Land and Water Adjudicatory Commission 1 I ~FILED with the Clerk of the Florida Land and Water Ad' dicatory Commission this ~ day of May, 2002. 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the forgoing was delivered to the following ~ persons by United States Mail, facsimile or hand delivery this ~ day of May, 2002. Honorable Jeb Bush Governor The Capitol Tallahassee, Florida 32399 Honorable Robert Milligan Comptroller The Capitol Tallahassee, Florida 32399 Honorable Bob Butterworth Attorney General The Capitol Tallahassee, Florida 32399 Honorable Charles H. Bronson Commissioner of Agriculture The Capitol Tallahassee, Florida 32399 Richard A. Lotspeich, Assistant General Counsel David L. Jordan, Deputy General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 James T. Hendrick, Esquire Morgan & Hendrick 317 Whitehead Street Key West, Florida 33040-6542 Danny K. Kolhage, Clerk Board of County Commissioners Monroe County 500 Whitehead Street Key West, Florida 33040 Honorable Katherine Harris Secretary of State The Capitol ' Tallahassee, Florida 32399 Honorable Tom Gallagher Insurance Commissioner The Capitol Tallahassee, Florida 32399 Honorable Charlie Crist Commissioner of Education The Capitol Tallahassee, Florida 32399 Gregory Munson, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, Florida 32399 Elizabeth C. Bowman, Esquire Gary P. Sams, Esquire Hopping Green & Sams, P.A. 123 S. Calhoun Street Tallahassee, Florida 32314 Honorable Charles McCoy Mayor, Monroe County 500 Whitehead Street Key West, Florida 33040 Timothy J. McGarry, Director Growth Management Division Monroe County 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 3 Carolyn Dekle, Director South Florida Regional Planning Council 3440 Hollywood Boulevard Suite 140 Hollywood, Florida 33021 ~D.~ ~ DONNA ARDUIN, Secretary \) Florida Land and Water Adjudicatory Commission 4 STATE OF FLORIDA LAND AND WATER ADJUDICATORY COMMISSION IN RE: A DEVELOPMENT ORDER ISSUED BY MONROE COUNTY WITHIN THE FLORIDA KEYS AREA OF CRITICAL STATE CONCERN APPROVING AN AMENDMENT TO A DEVELOPMENT OF REGIONAL IMP ACT KNOWN AS HAWK'S CAY CASE NO. APP-02-001 / EXPEDITED JOINT MOTION FOR ABATEMENT OF PROCEEDINGS Petitioner/Cross-Respondent, Florida Department of Community Affairs (Department); Respondent/Cross-Petitioners, Hawk's Cay Investors, Ltd. and Hawk's Cay Developers, Ltd. (collectively, Applicant); and Respondent, Monroe County, Florida (County), by and through their undersigned attorneys, pursuant to Rule 28-106.204, Florida Administrative Code (F.A. C.), file this expedited joint motion for abatement of all proceedings in the Appeal and Cross-Appeal pending in the above-styled case, In support of this motion, the parties state as follows: 1. The Department on April 16, 2002, filed a timely Notice of Appeal and a related Petition with the Florida Land and Water Adjudicatory Commission (FL WAC) concerning Monroe County Resolutions 037-2002 and 038-2002 dated February 12,2002, that approved amendments to the Hawk's Cay Development of Regional Impact (DRI) development order (DO). 2, The Hawk's Cay DRI is located in unincorporated Monroe County. The Applicant is the owner and developer of the Hawk's Cay DRI. The County is the local government with jurisdiction over amendments to the Hawk's Cay DRI DO. 3, The Applicant on April 25, 2002, filed a timely Notice of Cross- Appeal and a related Petition concerning Monroe County Resolution 037-2002. 4, Since initiation of the Appeal and Cross-Appeal, the parties or their representatives have engaged in settlement discussions related to the Appeal and Cross-Appeal. The Department and the Applicant have indicated that they would execute a Stipulated Settlement Agreement so long as it is in the form attached hereto as Exhibit A. Additional time is needed for the Monroe County Board of County Commissioners (BOCC) to hold the necessary proceedings to consider the Stipulated Settlement Agreement and proposed DRI DO amendments implementing the settlement. Those DO amendments have been filed by the Applicant with the DRI review agencies. 5. It is presently anticipated that the Monroe County BOCC will conduct those necessary proceedings on June 19, 2002, the next regularly scheduled Commission meeting to be held nearest the location of the Hawk's Cay DRI, If the Stipulated Settlement Agreement is executed by all parties and the required implementing DRI DO amendments are adopted, the Agreement attached as Exhibit A provides for the voluntary dismissal with prejudice of both the Appeal and Cross-Appeal. 6, In light of the foregoing, the parties request that FL W AC immediately abate all proceedings in the Appeal and Cross-Appeal, including but not limited to the filing or consideration of any responsive pleadings, motions, stipulations of the parties, discovery and referral of the Appeal and Cross-Appeal to the Division of Administrative Hearings (DOAH). 7. The parties request expedited action on this motion in light of several otherwise impending deadlines under Chapter 42-2, F.A.c. 8, The parties further agree and request that the FL W AC abatement order provide that any of the parties requesting this Joint Motion may request re-activation of these proceedings at any 2 time by the filing of an appropriate motion and simultaneous service of same on counsel for the other parties by hand delivery or facsimile. The parties further agree that upon the granting of any motion for re-activation by FL WAC, the parties shall have 12 days from the date of service of the order in which to file and serve answers and any other responsive pleadings in both the Appeal and Cross- Appeal. 9, In the event notices of voluntary dismissal with prejudice of both the Appeal and Cross-Appeal have not been filed by August 1, 2002, the parties further agree to file a joint status report to FL W AC by that date. 10. The undersigned has conferred with counsel for the Department and for Monroe County and is authorized by them to state that they join in this motion and also is authorized to execute, file and serve this motion on their behalf. WHEREFORE, the parties respectfully request that FL W AC enter an order: a. Abating all proceedings in this case, including but not limited to the filing or consideration of any responsive pleadings, motions, discovery and referral of the case to the Division of Administrative Hearings; b. Providing that any party requesting this abatement can file a motion to re-activate the proceedings that must be served simultaneously on counsel for all other parties by hand delivery or telecopy; c. Upon the issuance of an order by FL W AC re-activating these proceedings, requiring Respondents to file answers and any other responsive pleadings in both the Appeal and Cross-Appeal within 12 days of the date of service of the order; d. Unless voluntary dismissals with prejudice of both the Appeal and Cross-Appeal 3 have been filed by August 1, 2002, requiring the parties to report jointly by August 1, 2002, on the status of the case; and e. Granting such other relief as is fair and appropriate, Respectfully submitted this ~ of May 2002. ~~ C~ g~- Elizabeth C. Bowman Florida Bar No. 0319643 Gary P. Sams Florida Bar No. 134594 Post Office Box 6526 Tallahassee, FL 32314 (850) 222-7500 Attorneys for: HAWK'S CAY INVESTORS, LTD and HAWK'S CAY DEVELOPERS, LTD. and Richard A. Lotspeich, Assistant General Counsel David L. Jordan, Deputy General Counsel 2555 Shumard Oak Blvd. Tallahassee, FL 32399-2100 Attorneys for: DEPARTMENT OF COMMUNITY AFFAIRS and James T, Hendrick, Esq. Monroe County Attorney Morgan & Hendrick 317 Whitehead Street Key West, FL 33040-6542 Attorney for: MONROE COUNTY, FLORIDA 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original and one copy of the foregoing have been filed by hand delivery with the Office of Planning & Budgeting, Executive Office of the Governor, Room 1801, The Capitol, Tallahassee, Florida 32399~~ true and correct copies have been furnished to the persons listed below by u.s. Mail this I Y y of May, 2002, Honorable Charles McCoy Mayor of Monroe County 500 Whitehead Street Key West, Florida 33040 Honorable Jeb Bush, Governor 210 The Capitol Tallahassee, FL 32399-0001 (Original filed with FLWAC) Danny K Kolhage Clerk to the Board of County Commissioners 500 Whitehead Street Key West, Florida 33040 Honorable Katherine Harris Secretary of State LL 10 The Capitol Tallahassee, FL 32399-0001 Richard A Lotspeich Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd, Tallahassee, FL 32399-2100 Honorable Bob Butterworth Attorney General PL 01 The Capitol Tallahassee, FL 32399-0001 James T Hendrick, Esq. Morgan & Hendrick 3 17 Whitehead St. Key West, FL 33040-6542 Honorable Charlie Bronson Commissioner of Agriculture LL 29 The Capitol Tallahassee, FL 32399-0001 Timothy 1. McGarry, AICP Director, Growth Management Division 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 Honorable Robert F. Milligan Comptroller LL 22 The Capitol Tallahassee, FL 32399-0001 Carolyn Dekle, Director South Florida Regional Planning Council 3440 Hollywood Blvd., Suite 140 Hollywood, FL 33021 Honorable Tom Gallagher Insurance Commissioner LL 27 The Capitol Tallahassee, FL 32399-0001 Honorable Charlie Crist Commissioner of Education LL 24 The Capitol Tallahassee, FL 32399-0001 5 Gregory Munson, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, FL 32399-0001 'UA=-1~- LJ ~C.O~ Attorney 172565.1 6 EXHIBIT A STATE OF FLORIDA LAND AND WATER ADJUDICATORY COMMISSION i.)~~ IN RE: A DEVELOPMENT ORDER ISSUED BY MONROE COUNTY WITHIN THE FLORIDA KEYS AREA OF CRITICAL CASE NO.: APP-02-001 STATE CONCERN APPROVING AN AMENDMENT TO A DEVELOPMENT OF REGIONAL IMP ACT KNOWN AS HAWK'S CAY STIPULATED SETTLEMENT AGREEMENT This Stipulated Settlement Agreement is entered into between the State of Florida, Department of Community Affairs (the DCA), Monroe County ("County"), Hawk's Cay Investors, Ltd., and Hawk's Cay Developers, Ltd. (coll~ctively, "Applicant"), as a complete and final settlement of all claims raised in the Appeal and Cross-Appeal in the above-styled proceeding. RECITALS WHEREAS, the State of Florida, Department of Community Affairs ("DCA"), is the state land planning agency and has the authority to administer and enforce Chapter 380, Florida Statutes, which includes provisions relating to developments of regional impact; and WHEREAS, Monroe County ("Local Government") is a local government with the duty to consider proposed amendments to development of regional impact development orders; and WHEREAS, Hawk's Cay Investors, Ltd., and Hawk's Cay Developers, Ltd. (collectively "Applicant") are the owner and developer ofa Development of Regional Impact (DRI) in unincorporated Monroe County known as Hawk's Cay; and WHEREAS, the Hawk's Cay DRI Development Order was originally issued by Monroe County as Resolution No. 365-1986 on December 5, 1986; and WHEREAS, on October 12, 2001, the Applicant applied to the County for an amendment to the DRI to include 28 additional hotel units and 18 additional staff units; and WHEREAS, on February 12,2002, the Monroe County Board of County Commissioners approved the application through Resolution 037-2002 and took the position that the approved additional units are exempt from the Monroe County residential Permit Allocation System under its Rate of Growth Ordinance (ROGO); and WHEREAS, the DCA timely filed a Notice of Appeal and a Petition initiating an appeal to the Florida Land And Water Adjudicatory Commission (FL WAC) pursuant to Section 380.07, Fla. Stat., taking the position that the approved units are subject to ROGO;and WHEREAS, the Applicant timely filed a Notice of Cross-Appeal and a Petition initiating a Cross-Appeal to FL W AC pursuant to Section 380.07 challenging another provision of Resolution 037-2002; and WHEREAS, the parties desire to resolve their dispute amicably, without the necessity of a lengthy administrative proceeding and judicial appeals; NOW, THEREFORE, the parties covenant and agree to settle the above-styled case on the following terms: 1. Pursuant to Florida Statute Section 380.06(19)(e)2., the Applicant shall send a Notice of Proposed Change (NOPC) to the County, DCA and the South Florida Regional Planning Council, to incorporate in the Development Order the additional terms and conditions set out in Exhibit "A" attached hereto and incorporated by reference. The 18 affordable hotel staff quarters shall consist of 12 units each with 2 bedrooms and 1 ~ baths; 3 units each with 2 bedrooms and 2 baths; and 3 units each with 2 bedrooms and 1 bath. 2. Monroe County Growth Management Division shall process and recommend approval ofthe NOPC as expeditiously as possible consistent with the minor change requirements of Section 380.06(19)(e)2., Fla. Stat. 3. In a letter from Secretary Steve Seibert to the Honorable Charles McCoy dated April 15, 2002, the Department provided notification of appeal of Monroe County Resolution No. 037-2002, relating to the Hawk's Cay Expansion DR!. In that letter it is stated that "... in this case I have found it necessary to de-couple the wastewater issue from the development order issue. II It is understood by all parties hereto that in entering into this settlement agreement the Department takes no position, neither endorsing nor opposing, any development order condition relating to the provision of wastewater treatment to Duck Key and Indies Island. In regard to Conch Key, the Department supports the use of the Hawk's Cay wastewater facility as one option of providing cost feasible wastewater service. 4. Upon the full execution ofthis agreement and upon the adoption of the DRI amendments in Exhibit A hereto by the Board of County Commissioners, and no later than five (5) days after the later action, the DCA shall voluntarily dismiss with prejudice its pending appeal in the above-styled case, and shall not file a subsequent appeal challenging the minor changes reflected in Exhibit "A." The parties agree that the changes in Exhibit "A" constitute changes that are not substantial deviations and are similar in nature, impact and character to the changes enumerated in Florida Statute Section 380.06(19)(e)2., subparagraphs a-i, and do not create the likelihood of any additional regional impact. The parties further agree that the proposed changes are consistent with the Monroe County Comprehensive Plan, Land Development Regulations and Principles for Guiding Development in the Florida Keys. 5. Within five (5) days of the DCA filing a dismissal with prejudice pursuant to paragraph 3. above, the Applicant shall voluntarily dismiss with prejudice its pending cross-appeal in the above-styled case. 6. If necessary after the full execution of this agreement, the parties shall file a joint motion in the above-styled case requesting that the FL W AC hold the pending appeal and cross-appeal in abeyance and waive the 60-day requirement for FL W AC action for a time sufficient to allow the amendment process described above to be completed, including reasonable extensions of time as may be necessary. If necessary, this motion or request shall meet the timeframes set forth in Rule 42-2.008(4), Fla. Admin. Code. 7. In the event of a breach of this agreement, all parties retain and shall be entitled to the administrative and judicial remedies to which they would be entitled on the date that this agreement is executed. 8. This Agreement affects the rights and obligations of the parties under Chapter 380, Fla. Stat. It is not intended to determine or influence the authority or decisions of any other state or local government or agency in issuance of any other permits or approvals which might be required by state law or local ordinance for any development authorized by this Agreement. Any amendment to or modification of this Agreement shall not be effective unless contained in a writing signed by the parties. 9. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same agreement. Counterparts of this Agreement with facsimile signatures shall be deemed original counterparts for all purposes; however, each party shall promptly furnish counterparts with original signatures upon request. The effective date and date of execution of this Agreement shall be the date that the last party signs and acknowledges this Agreement. Date Sonny Timmerman, Director, Division of Community Planning, for the Florida Department of Community Affairs STATE OF FLORIDA COUNTY OF LEON Sworn to (or affirmed) and subscribed before me this _ day of Sonny Timmerman, who is personally known to me or identification , 2002, by has produced as Notary Public State of Florida My commission expires: HAWK'S CAY DEVELOPERS, LTD. A Florida Limited Partnership By: Hawk's Cay Development, Inc. A Florida Corporation, General Partner By: Donald H. Johnson, President STATE OF FLORIDA COUNTY OF Sworn to (or affirmed) and subscribed before me this _ day of , 2002, by , who _ is personally known to me or _ has produced as identification Notary Public State of Florida My commission expires: HAWK'S CAY INVESTORS, LTD. A Florida Limited Partnership By: Hawk's Cay Management, Inc., A Florida Corporation, General Partner By: Donald H. Johnson, President STATE OF FLORIDA COUNTY OF Sworn to (or affirmed) and subscribed before me this _ day of , 2002, by , who _ is personally known to me or _ has produced as identification Notary Public State of Florida My commission expires: EXHIBIT A TO SETTLEMENT AGREEMENT HAWK'S CAY DRI AND MAJOR DEVELOPMENT PROPOSED AMENDMENTS 1. Further revise condition 9.1a as follows: The applicant may construct a maximum of 297 guest units consisting of combinations of no more than ~ 614 bedrooms and 6i4:5 626.5 bathrooms at Hawk's Cay. The Applicant aarees that the 28 additional market rate units aooroved in Resolutions 037-2002 adopted on February 12. 2002 shall each contain two bedrooms and 2% bathrooms. The Aoolicant further aarees that the 28 additional market rate units and the 18 affordable hotel staff quarters described below shall be subject to the orovisions of the Monroe County Comorehensive Plan that limit the number of oermits for new residential develooment in order to maintain hurricane evacuation clearance times established in the Plan. Therefore. Monroe County shall issue building oermits for the 28 market rate units and for the 18 affordable units only at such time as the Aoolicant receives a Rate of Growth Ordinance CROGO) allocation under the Permit Allocation SYstem. or the Aoolicant acauires and extinguishes an eauivalent number of bedroom/bath combinations from a site or sites within the Middle Keys subarea. as defined in Monroe County Code Section 9.5-120.2b. or from within another subarea if the Monroe County Comorehensive Plan and/or Monroe County Code is amended to orovide authorization. If the site of the acauired units is within a seoarate municioality. that municioal aovernment must. by resolution. aoorove the extinguishments and acknowledge that any new units on the site of the acauired units must receive a ROGO award. [remaining text unchanged] 2. Further Revise Condition 9.1 h as follows: The Second Suoplemental Attachment G2 is modified to conform to the reduction of bedrooms and bathrooms soecified in condition 9.1 a. ST ATE OF FLORIDA LAND AND WATER ADJUDICATORY COMMISSION IN RE: A DEVELOPMENT ORDER ISSUED BY MONROE COUNTY WITHIN THE FLORIDA KEYS AREA OF CRITICAL ST ATE CONCERN APPROVING AN AMENDMENT TO A DEVELOPMENT OF REGIONAL IMP ACT KNOWN AS HAWK'S CAY. CASE NO. APP-02-001 / ORnRR GR ANTJNG RXPRnJTRn .JOJNT MOTJON FOR A RA TRMRNT OF PROCRRnJNGS This cause came on for consideration by the Secretary of the Florida Land and Water Adjudicatory Commission (Commission) upon an Expedited Joint Motion for Abatement of Proceedings received on May 14, 2002. The motion is hereby granted and the Commission: 1. Abates all proceedings in the case; 2. Permits any party requesting the abatement to file a motion to re-activate the proceeding to be served simultaneously on counsel for all other parties by hand delivery or telecopy; 3. Directs the Respondents to file answers and any other responsive pleadings in both the Appeal and Cross-Appeal within 12 days of the date of service of the order upon re- activating the proceeding; and 4. Unless voluntary dismissals with prejudice of both the Appeal and Cross-Appeal 1 have been filed by August 1, 2002, directs the parties to report jointly by August 1, 2002, on the status of the case. ~ DONE AND ORDERED this JjJ day of May, 2002, in Tallahassee, Florida. ~B.~ -b, DONNA ARDUIN, Secretary Q- . Florida Land and Water Adjudicatory Commission\ "1~ILED with the Clerk of the Florida Land and Water Adjudicatory Commission this ~ day of May, 2002. 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the forgoing ~elivered to the following persons by United States Mail, facsimile or hand delivery this j{) day of May, 2002. Honorable Jeb Bush Governor The Capitol Tallahassee, Florida 32399 Honorable Robert Milligan Comptroller The Capitol Tallahassee, Florida 32399 Honorable Bob Butterworth Attorney General The Capitol Tallahassee, Florida 32399 Honorable Charles H. Bronson Commissioner of Agriculture The Capitol Tallahassee, Florida 32399 Richard A. Lotspeich, Assistant General Counsel David L. Jordan, Deputy General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 James T. Hendrick, Esquire Morgan & Hendrick 317 Whitehead Street Key West, Florida 33040-6542 Danny K. Kolhage, Clerk Board of County Commissioners Monroe County 500 Whitehead Street Key West, Florida 33040 Honorable Katherine Harris Secretary of State The Capitol Tallahassee, Florida 32399 Honorable Tom Gallagher Insurance Commissioner The Capitol Tallahassee, Florida 32399 Honorable Charlie Crist Commissioner of Education The Capitol Tallahassee, Florida 32399 Gregory Munson, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, Florida 32399 Elizabeth C. Bowman, Esquire Gary P. Sams, Esquire Hopping Green & Sams, P .A. 123 S. Calhoun Street Tallahassee, Florida 32314 Honorable Charles McCoy Mayor, Monroe County 500 Whitehead Street Key West, Florida 33040 Timothy J. McGarry, Director Growth Management Division Monroe County 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 3 Carolyn Dekle, Director South Florida Regional Planning Council 3440 Hollywood Boulevard Suite 140 Hollywood, Florida 33021 ~PJ.~ ~ DONNA ARDUIN, Secretary O. Florida Land and Water Adjudicatory Commission 4 STATE OF FLORIDA LAND AND WATER ADJUDICATORY COMMISSION IN RE: A DEVELOPMENT ORDER ISSUED BY MONROE COUNTY WITHIN THE FLORIDA KEYS AREA OF CRITICAL STATE CONCERN APPROVING AN AMENDMENT TO A DEVELOPMENT OF REGIONAL IMP ACT KNOWN AS HA WK'S CAY / CASE NO. APP-02-001 NOTICE OF VOLUNTARY DISMISSAL The Department of Community Affairs ("Department"), through its undersigned counsel, hereby gives notice of its voluntary dismissal of its appeal in this proceeding and says: 1. The Department filed its Notice of Appeal and Petition in this cause on April 16, 2002. Thereafter, on April 25, 2002, Hawk's Cay filed its Notice of Cross Appeal. 2. On May 14, 2002, the Department and representatives of Hawk's Cay filed a Expedited Joint Motion for Abatement of Proceedings indicating that the parties had reached a settlement of their differences and that additional time was needed to allow the settlement agreement to be approved by the Monroe County Board of County Commissioners ("Board"). 3. On June 19, 2002, the Board met and voted to approve the settlement agreement. 4. On July 18, 2002, the Stipulated Settlement Agreement was fully executed by all parties. A copy of the Stipulated Settlement Agreement is attached hereto. Wherefore, all disputed matters between the parties having been fully addressed and resolved through the Stipulated Settlement Agreement, the Department voluntarily dismisses with prejudice its Notice of Appeal and Petition in this cause. Respectfully submitted this eR..2.~ day of July, 2002. ~#' Richard A. Lotspeich, As . tant General Counsel David L. Jordan, Deputy General Counsel DEPARTMENT OF COMMUNITY AFFAIRS 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 CERTIFICATE OF SERVICE I HEREBY CERTIFY that true and correct copies of the foregoing have been furnished ~ to the persons listed below by the method indicated this ~ day of July, 2002. ~d7~ Richard A. Lotspeich By Certified Mail. Return Receipt Requested: By U. S. Mail Honorable Charles McCoy Mayor of Monroe County 500 Whitehead Street Key West, Florida 33040 Pritam Singh Village at Hawk's Cay, Inc. 786 Duck Key Plaza Marathon, FL 33050 James T. Hendrick 3 17 Whitehead Street Key West, Florida 33040 Elizabeth C. Bowman Hopping, Green, Sams and Smith, P.A. P.O. Box 6526 Tallahassee, FL 32314 Danny L. Kolhage Clerk to the Board of County Commissioners 500 Whitehead Street Key West, Florida 33040 Carolyn Dekle Director South Florida Regional Planning Council 3440 Hollywood Boulevard Suite 140 Hollywood, Florida 33021 Timothy 1. McGarry, AICP Director, Growth Management Division 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 By Inter-Agency Mail: Honorable Tom Gallagher Insurance Commissioner The Capitol Tallahassee, Florida 32399-0001 Donna Arduin Secretary Florida Land and Water Adjudicatory Commission The Capitol Tallahassee, Florida 32399-0001 Honorable Charlie Crist Commissioner of Education The Capitol Tallahassee, Florida 32399-0001 Honorable Jeb Bush Governor The Capitol Tallahassee, Florida 32399-0001 Gregory Munson, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, Florida 32399 Honorable Katherine Harris Secretary of State The Capitol Tallahassee, Florida 32399-0001 Honorable Bob Butterworth Attorney General The Capitol Tallahassee, Florida 32399-0001 Honorable Charlie Bronson Commissioner of Agriculture The Capitol Tallahassee, Florida 32399-0001 Honorable Robert F. Milligan Comptroller The Capitol Tallahassee, Florida 32399-0001 STATE OF FLORIDA , LAND AND WATER ADJUDICATORY COMMISSION IN RE: A DEVELOPMENT ORDER ISSUED BY MONROE COUNTY WITHIN THE FLORIDA KEYS AREA OF CRITICAL STATE CONCERN APPROVING AN AMENDMENT TO A DEVELOPMENT OF REGIONAL IMP ACT KNOWN AS HAWK'S CAY CASE NO.: APP-02-001 STIPULA TED SETTLEMENT AGREEMENT This Stipulated Settlement Agreement is entered into between the State of Florida, Department of Conununity Affairs (the DCA), Monroe County ("County"), Hawk's Cay Investors, Ltd., and Hawk's Cay Developers, Ltd. (collectively, "Applicant"), as a complete and final settlement of all claims raised in the Appeal and Cross-Appeal in the above-styled proceeding. RECITALS WHEREAS, the State of Florida, Department ofConununity Affairs ("DCA"), is the state land planning agency and has the authority to administer and enforce Chapter 380, Florida Statutes, which includes provisions relating to developments of regional impact; and _ WHEREAS, Monroe County ("Local Government") is a local government with the duty to consider proposed amendments to development of regional impact development orders; and WHEREAS, Hawk's Cay Investors, Ltd., and Hawk's Cay Developers, Ltd. (collectively "Applicant") are the o\Wer and developer ofa Development of Regional Impact (DRI) in unincorporated Monroe County kno\W as Hawk's Cay; and WHEREAS, the Hawk's Cay DRI Development Order was originally issued by Monroe County as Resolution No. 365-1986 on December 5, 1986; and WHEREAS, on October 12,2001', the Applicant applied to the County for an amendment to the DRl to include 28 additional hotel units and 18 additional staff units; and WHEREAS, on February 12,2002, the Monroe County Board of County Commissioners approved the application through Resolution 037-2002 and took the position that the approved additional units are exempt from the Monroe County residential Permit Allocation System under its Rate of Growth Ordinance (ROGO); and WHEREAS, the DCA timely filed a Notice of Appeal and a Petition initiating an appeal to the Florida Land And Water Adjudicatory Commission (FLW AC) pursuant to Section 380.07, Fla. Stat., taking the position that the approved units are subject to RaGa; and WHEREAS, the Applicant timely filed a Notice of Cross-Appeal and a Petition initiating a Cross- Appeal to FLW AC pursuant to Section 380.07 challenging another provision of Resolution 037-2002; and WHEREAS, the parties desire to resolve their dispute amicably, without the necessity of a lengthy administrative proceeding and judicial appeals; NOW, THEREFORE, the parties covenant and agree to settle the above-styled case on the following terms: 1. Pursuant to Florida Statute Section 380.06(19)(e)2., the Applicant shall send a Notice of Proposed Change (NOPC) to the County, DCA and the South Florida Regional Planning Council, to incorporate in the Development Order the additional terms and conditions set out in Exhibit "A" attached hereto and incorporated by reference. The 18 affordable hotel staff quarters shall consist of 12 units each with 2 bedrooms and 1 Yz baths; 3 units each with 2 bedrooms and 2 baths; and 3 units each with 2 bedrooms and 1 bath. 2. Mo~oe County Growth Management Division shall process and recommend approval of the NOPC as expeditiously as possible consistent with the minor change requirements of Section 380.06(19)(e)2., Fla. Stat. 3. In a letter from Secretary Steve Seibert to the Honorable Charles McCoy dated April 15, 2002, the Department provided notification of appeal of Monroe County Resolution No. 037-2002, relating to the Hawk's Cay Expansion DR!. In that letter it is stated that "... in this case I have found it necessary to de-couple the wastewater issue from the development order issue." It is understood by all parties hereto that in entering into this settlement agreement the Department takes no position, neither endorsing nor opposing, any development order condition relating to the provision of wastewater treatment to Duck Key and Indies Island. In regard to Conch Key, the Department supports the use of the Hawk's Cay wastewater facility as one option of providing cost feasible wastewater service. 4. Upon the full execution of this agreement and upon the adoption of the DR! amendments in Exhibit A hereto by the Board of County Commissioners, and no later than five (5) days after the later action, the DCA shall voluntarily dismiss with prejudice its pending appeal in the above-styled case, and shall not file a subsequent appeal challenging the minor changes reflected in Exhibit "A." The parties agree that the changes in Exhibit "A" constitute changes that are not substantial deviations and are similar in nature, impact and character to the changes enumerated in Florida Statute Section 380.06( 19)(e)2., subparagraphs a-i, and do not create the likelihood of any additional regional impact. The parties further agree that the proposed changes are consistent with the Monroe County Comprehensive Plan, Land Development Regulations and Principles for Guiding Development in the Florida Keys. 5. Within five (5) days of the DCA filing a dismissal with prejudice pursuant to paragraph 3. above, the Applicant shall voluntarily dismiss with prejudice its pending cross-appeal in the above-styled case. 6. If necessary after the full execution of this agreement, the parties shall file a joint motion in the above-styled case requesting that the FL W AC hold the pending appeal and cross-appeal in abeyance and waive the 60-day requirement for FL W AC action for a time sufficient to allow the amendment process described above to be completed, including reasonable extensions oftime as may be necessary. If necessary, this motion or request shall meet the timeframes set forth in Rule 42-2.008(4), Fla. Admin. Code. 7. In the event of a breach of this agreement, all parties retain and shall be entitled to the administrative and judicial remedies to which they would be entitled on the date that this agreement is executed. 8. This Agreement affects the rights and obligations of the parties under Chapter 380, Fla. Stat. It is not intended to determine or influence the authority or decisions of any other state or local government or agency in issuance of any other permits or approvals which might be required by state law or local ordinance for any development authorized by this Agreement. Any amendment to or modification of this Agreement shall not be effective unless contained in a writing signed by the parties. 9. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same agreement. Counterparts of this Agreement with facsimile signatures shall be deemed original counterparts for all purposes; however, each party shall promptly furnish counterparts with original signatures upon request. The effective date and date of execution of this Agreement shall be the date that the last party signs and acknowledges this Agreement. f) //gjo~ Date' OF COMMUNITY onny Timmerman, Director, Division of Community Planning, for the Florida Department of Community Affairs STATE OF FLORIDA COUNTY OF LEON Sworn to (or affirmed) and subscriped before me this {? ~y of (\ .0, ~, 2002, by Sonny Timmerman, who _~nirtfy kn~e or _ has produced as ide~on . f\\.JUCLuv ~ ~ Notary Public State of Florida My commission expires: "., "., Miriam Snipes .....L_~',. ,r ';.pi[ *My Commission CCn3213 .,.:~~..., Expires September 7, 2002 HAWK'S CAY DEVELOPERS, LTD. A Florida Limited Partnership By: Hawk's Cay Development, Inc. A Florida Corporation, General Partner By: ~~~ :;:, ~hn ;;, President STATE OF FLORIDA COUNTY OF ;J~~ Sworn to ~ed) and subscribed before me this 6 1Jf day of ~. , 2002, by ~ /J , who y/is personally known to me or _ has pr (1uced as identification ~ aa-~ ( Notary Public State of Florida My commission expires: OFFICIAL N MARSHA ALLEN GREEN NOTARY PUBUC srATE OF FLORIDA COMMISSION NO. DD060S0'7 MYCOMM}~t.qI:U,,~P.,Qc.T.17 5 HAWK'S CAY INVESTORS, LTD. A Florida Limited Partnership By: Hawk's Cay Management, Inc., By: AC2?~~rtncr Don . Johnso , President ST ATE OF FLORIDA COUNTY OF J7~ ~ Sworn to (or affirmed) and subscribed b~fore me this {, ~day of ~ ,2002, by ~ f/ ~ho ...........-is personally known to me or _ has produ (1 as identification N?t~ ttffi- ~ State of Florida OFflCIXI:NOfARYS L MARSHA ALLEN GREEN NOTARY PUBUC STATE OF FLORIDA COMMISSION NO. DD060S0'7 MY COMM!SS!O~.~";(1\c:g)7,2005 My commission expires: ~/."H at STATE OF FLORIDA COUNTY OF MONROE COUNTY BOARD OF COUNTY COMMISSIONERS Sworn to (or affIrmed) and subscribed before me this _ day of , 2002, by Charles "Sonny" McCoy, who _ is personally known to me or _ has produced as identification Notary Public State of Florida My commission expires: f~'~:~:;~~;,; EXHIBIT A TO SETTLEMENT AGREEMENT HAWK'S CAY DRI AND MAJOR DEVELOPMENT ADDITIONAL PROPOSED AMENDMENTS 1. Further revise condition 9.1a as follows: The applicant may construct a maximum of 297 guest units consisting of combinations of no more than 6G 614 bedrooms and 654.5 626.5 bathrooms at Hawk's Cay. The Applicant al!rees that the 28 additional market rate units approved in Resolutions 037-2002 adopted on February 12~ 2002 shall each contain two bedrooms and 2~ bathrooms. The 18 affordable hotel staff Quarters shall consist of 12 units each with 2 bedrooms and 1 ~ baths: 3 units each with 2 bedrooms and 2 baths: and 3 units each with 2 bedroom and 1 bath. The Applicant further al!rees that the 28 additional market rate units and the 18 affordable hotel staff Quarters described below shall be subiect to the provisions of the Monroe County Comprehensive Plan that limit the number of permits for new residential development in order to maintain hurricane evacuation clearance times established in the Plan. Therefore~ Monroe Countv shall issue buildinl! permits for the 28 market rate units and for the 18 affordable units onlv at such time as the Applicant receives a Rate of Growth Manal!ement (RaGa) allocation under the Permit Allocation Svstem~ or the Applicant aCQuires and extinguishes an eQuivalent number of bedroomlbath combinations from a site or sites within the Middle Kevs subarea. as defined in Monroe County Code Section 9.5-120.2b. or from within another subarea if authorized bv the Monroe County Comprehensive Plan and/or Monroe County Code. If the site of the aCQuired units is within a separate municipality. that municipal I!overnment must. bv resolution. approve the extinl!uishments and acknowledl!e that an" new units on the site of the aCQuired units must receive a RaGa award. [remaining text unchanged] 2. Further Revise Condition 9.1h as follows: The Second Supplement Attachment G2 is modified to conform to the reduction of bedrooms and bathrooms specified in condition 9.1a. STATE OF FLORIDA LAND AND WATER ADJUDICATORY COMMISSION IN RE: A DEVELOPMENT ORDER ISSUED BY MONROE COUNTY WITHIN THE FLORIDA KEYS AREA OF CRITICAL STATE CONCERN APPROVING AN AMENDMENT TO A DEVELOPMENT OF REGIONAL IMP ACT KNOWN AS HAWK'S CAY CASE NO. APP-02-001 / HA WKS CAY'S NOTICE OF VOLUNTARY DISMISSAL OF ITS CROSS-APPEAL HAWK'S CAY INVESTORS, LTD. and HAWK'S CAY DEVELOPERS, LTD. (collectively "Hawk's Cay"), by and through its undersigned attorneys, pursuant to Rule 42- 2.008(5)(a), Florida Administrative Code (F.A.C.), files this Notice of Voluntary Dismissal of its Cross-Appeal with prejudice. Hawk's Cay states as follows concerning this Notice: 1. The Florida Department of Community Affairs (DCA) on April 16, 2002, served a Notice of Appeal of amendments to the Hawk's Cay DRI development order adopted by Monroe County on February 12,2002 (Resolutions 037-2002 and 038-2002). 2. On April 25, 2002, Hawk's Cay served and filed a Cross-Appeal of Resolution 037-2002. 3. The parties have subsequently entered a Stipulated Settlement Agreement (Agreement) (attached hereto as Exhibit 1) of the Appeal and Cross-Appeal. 4, Pursuant to the terms of the Agreement, the DCA served a Notice of Voluntary Dismissal with prejudice of its appeal on July 22, 2002. 5, Pursuant to the terms of the Agreement, Hawk's Cay files this Notice of its Voluntary Dismissal of its Cross-Appeal with prejudice. WHEREFORE, Hawk's Cay requests that Florida Land and Water Adjudicatory Commission enter a Final Order of Dismissal based on the voluntary dismissal with prejudice of both the Appeal and Cross-Appeal in this proceeding and providing such other relief as is just and proper. Respectfully submitted this ni of V ~ ' 2002. HOPPING GREEN Elizabet C. B w an Florida Bar N . 0319643 GaryP. Sam Florida Bar No. 134594 123 S. Calhoun Street Tallahassee, FL 32314 (850) 222-7500 Attorneys for HAWK'S CAY INVESTORS, LTD. and HAWK'S CAY DEVELOPERS, LTD. 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original and one copy of the foregoing have been filed by hand delivery with the Office of Planning & Budgeting, Executive Office of the Governor, Room ] 801, The Capitol, Tallahassee, Florida 32399, and true ant correct c~ have been furnished to the persons listed below by the method indicated this ').J f Clay of .J; , 2002. By Certified Mail. Return Receipt Requested Honorable Charles McCoy Mayor of Monroe County 500 Whitehead Street Key West, Florida 33040 Honorable Jeb Bush, Governor 210 The Capitol Tallahassee, FL 32399-0001 (Original filed with FL WAC) Danny K. Kolhage Clerk to the Board of County Commissioners 500 Whitehead Street Key West, Florida 33040 Honorable Katherine Harris Secretary of State LL 10 The Capitol Tallahassee, FL 32399-0001 By U.S. Mail Honorable Bob Butterworth Attorney General PL 01 The Capitol Tallahassee, FL 32399-0001 Richard A. Lotspeich Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, FL 32399-2100 Honorable Charlie Bronson Commissioner of Agriculture LL 29 The Capitol Tallahassee, FL 32399-0001 James T. Hendrick, Esq. Morgan & Hendrick 317 Whitehead St. Key West, FL 33040-6542 Honorable Robert F. Milligan Comptroller LL 22 The Capitol Tallahassee, FL 32399-0001 Timothy 1. McGarry, AICP Director, Growth Management Division 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 Honorable Tom Gallagher Insurance Commissioner LL 27 The Capitol Tallahassee, FL 32399-0001 Carolyn Dekle, Director South Florida Regional Planning Council 3440 Hollywood Blvd., Suite 140 Hollywood, FL 33021 Honorable Charlie Crist Commissioner of Education LL 24 The Capitol Tallahassee, FL 32399-0001 3 Gregory Munson, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, FL 32399-0001 lJ Attorney 4 ~(ILL/L~~L 11:QO O:JtJ- :JLL.- LU f .J , I.J-....J~I L-L...""""'L... STATE OF FLORIDA \ LAND AND WATER ADJUD:ICATORY COMMISSION IN RE: A DEVELOJ:lMENT ORDER IsSuED BY MONROE. COuNTY WlnnN TIffi FLORIDA KEYS AREA OF CRJIICAL STATE CONCERN A,llPROVING AN AMENDMENT TO A DEVELOPMENT OF REGIONAL IMP ACT KNOWN AS HAWK'S CAY CASE NO.: APP~02-001 STIPULATED SETl'J-,EMENT AGREEMENT This Stipulated Settlement Agreement is entered into betw~en the State of Florida, Department-of Community Affair! (the DCA), Monroe County ("County"), Hawk's Cay Investors, Ltd., and Hawk's Cay Developers, Ltd. (collectively, .. Appllcant"), as a complete and final settlement of aU claims Hlis~d in t)J.e Appeal and Cross-Appeal in the above-styled proceeding, REelT ALS WHEREAS, tbe State of Florida, Department of community Affairs ("DCA"), is the stat~ land planning agency and bas the authority to 'ldministn and enforce Chapter 3&0, Florida Statutes, which jncludc~ proviSions relating to developmEnts ofregional impact; and _ WHEREAS, Monroe County ("Local Government") is a local government witb the duty tl) consider proposed amendments to devclofment of Te~onal impact development onkrs; and WHEREAS, Hawk's Cay investors, Ltd.. and Hawk's Cay Developen, Ltd, (collectively "Applicant") ar.e the ovrnel and developer ofa Development of Regional Impact (DRI) in unincorporated Monroe County known as Hawk's Cay; and WHEREAS, the Hawk's Cay DRl Development Order wa$ originally issued by Monroe County as Resolution No. 365-1986 011 Deeember 5, 1986; and WHERLAS, on October 12.2001-. the Applicant applied to the County for an amendment to the DRJ to include 28 additional hotd units and I B additional staff units; and WHEREAS, on FellJ:Uary 12,2002, the Momoe County Board of County Conunissioners approved the application through ResoL.Jtion 037 .}002 and tl;lok the position that tbe approved additionil units are exempt from ihe Monroe County residential Permit Allocation System under its Rate of Growth Ordinance (ROGO); and EXHIBIT 1 07/22/Z082 11:06 850-922-2679 FDCA/LEGAL PAGE 86 W:gEREAS, the DCA timely filed a Notice of Appeal and a P(;titiOIl initiating an appeal to the Florida Land And WateJ: A.djudicatory Commission (FL WAC) pursuant to Section 380.07, Fla. Stat., taking the position that the approved units are 5ubJtC1 to :RUGO; and WHERBAS, the Applicant timely filed a Notice of Cross-Appeal an(l a Petition initiating a Cross- App121 to FLW AC pWS\1ant to Section 380.07 chalilmging another provision of Resolution 037-2002; and WlffiREAS. the parties desire to ~(;'solve 1hej:r: dispute amicably, without the necessity oca lengthy administrative proceEding and judicial appeals; NOW, THEREFORE, the parties covenant and agr~e to settle the Ilbove-$tyled (Me oJ'the foiiowing temu: 1. Pursuant to Florida Statute Section 380.06(l9)(c}2., thE! Applicant shall send a Notice of Proposed Chan&e (;NOPC) to the County, DCA :'IDd the South Florida Regional Planning Council, to incorporate in the Development Orda the additi.o1;1al terms and conditions set out in Exhibit "An attached hereto and inc01porBted by reference. The 18 afford.ablt hotel st!lff quarters shall consist of 12 units each with 2 bedrO(l:m,s and 1 Yo 'baths; 3 units each with 2 bedrooms and 2 baths; Bnd 3 units eac:b with 2 bedrooms and 1 bath. 2. Mo~oe County Gf()w'rh ManagementDivision $hall process and reconunentl approval of the NOPC as expeditiously as possiblE consistent with the minor change requirements of Section 380,06(l9)(e)2., Fla. Stat. 3. ' In a lEttEr from Secretary Steve Seibert to the Honorable Charles McC::oy dated April 15. 2002, the Dcpanment providcd ~otification of appeal of Monroe County Resolution No. 037..2002, rclatiIi& to the Hawk's Cay Expansion DRl. In that lettcr it is stated that"... in this cas! I bave found it neces~ary to de-couple thE wastewater issue from the development order issue." It is understood by all parties hereto that in entering into this S(lttlem,cnt agreement the Department takes no position. neither endorsing nor opposing. any development order condition reliuing to \lie provision of wastewater treatment to Duck Key and Indies Island. In regard to Conch Key. the Department 5UPPOrtS the use of the Hawlc:'s Cay wastewater facility is one option of providing cost f\!uible WBs~ewater service. 4. Upon the full exeCUt10n (l~tros agreement and upon the adoption ofth~ DRJ amendments in Exhibit A hw~to by [he Board of County Conunissioners. and no later than five {5} days after tbe later 07/22/2002 11:06 850-922-2679 FDeA/lEGAl PAGE 07 ,', action, the DCA shall voluntarily dismiss with prejudice its pending appeal \n the above.styled '~ase, and shall not file a subsequent appeal challenging the minor changes reflected in Exhibit "A." The parties agtee thA~ t):1e changes in Exhibit "An constitute changes that are Iiot substantial deviations and are similar in i," , Datun.impact llnd character to the changes enumeratr,d in Florida Statute Section 380,06(19)(e)2., 5ubparagrapm a-i, ind do not create the likelihood of any additional regional impact. The partie$ fUrther agree that the proposed changes are COn5j",tc:nt with the Monro~ Counry Comprehensive 1>lan. Land Development ReguJllt;,ons and Principles for Guiding Development in the Flori/;la ;Keys. S. Within five (5) dr';1; J;,~ the DCA filing a dismissal with prejudice pursuant to paragraph 3. above, the Applicant shall voluntarily dismiS$ with prejudice its pending cross-aweat in the above-styled ease. 6. If neceulli)' after tbe full execution of this agref:ment, the parties shall file Ii joint moti~n in the a hove-styled cue requesting that the FL WAC hold tht pending appeal and CIO!l!l~QPpea,l in abeyantte and waive the 60-day requirement for FL WAC action for a time sufficient to, ;l.Uow,the amen4ment proce~s described above to be completed, including reasonable extensions ohime as may be necessary. If 'necessary, this motion or request shall met! the time frames set fo1th in Rule 42-2.008(4), Fla. Admin. Code, 7. In the event of a breaeh of this agreement,'al1 parties re~in and sball be entitled to 1M' administrative and judicial remedies to which they would be entitled on the date that this agreement is ' , ' executed. 8. This Agtcement ,f!i~:ctS the rights and obligations of the parties under Chil~ter 380, Fla,. Stat. It is not intended to determine or influence the lIuthority or decisions of Ilny other state Qf local government or agency in issuance of any other pennits or approvals whi~h might be requir~d by state la,w , or loell) ormnance for any development authorizEd by this Agreement. Any amendment to Of modification of this A~reement shall nQt be effective Wlless contamed in a writing signed by the parties. 9. This Agreement may be execut~d in one or more cmmterpartS, each of whieh shall be decll1ed an origiiial, 'but all of which shall together constitute one and the same agreement. Counterparts of' ' , this Agreement with facsimile signatwes ~hall be (teemed original counterpartS for aU purposes; however, each party shall promptly furnish countr,rpam wit:.! original signature:; upoo. xeque!lt. The effective date 07/22/2~02 11:06 850-922-2679 FDCA/LEGAL PAGE 08 aI1d dale of eKecutiQl), of this Agreement shall be the date that the lust party &!gD.S and Jelcnowledges this Agreerm:nt. l) jlijo'?" Date' OF COMMUNITY aMY Timmerman, Director. Division of Community Plzmning, for the Florid~ Department of CommunitY Affairs {Vu~~r Notary Public State of Florida My commission expires: ,"""" Miriam 5nlpc1 ~~:1" -;r .. ' * My CommiMlon 00713213 \"" ...'tl EJlplrl!!lS8p1ember 7. 2Oll2 87/22/2~82 11:06 858-922-2679 FDCA I LEGAL PAGE 09 HA WK'S CAY DEVELOPERS, LTD. A Florida Limited Partnership By: Hawk's Cay Development, Inc. A Florida Corporation, General Partner By: ~~~~d: STATE OF FLORIDA COUNTY OF ;JA.4., ~ Sworn to ~r.affumed) and subscribed b~fore me this 6"!t day of ~. ,2002, by' ~ " ~ . who ~s P~"'~():"ally known to me OT _ has pr auced as identification ~~~ Notary Public ( State of Florida My commission expires: '0, ' MARsHA ALLEN GmN NorMY PUBUC Sf An: OF RDRtoA COMMISSION NO. DDQr0507 MYCOMMI5510N EXP. OCT.1i'.2005 .......&.........!..'!!'It...II..I'\.':'" .~ HAWK'S CAY INVESTORS, LTD. A FIQrida Limited Partnership By: Hawk' 5 Cay Management, Inc., A florida Corporation, General Partner By: ~~~- ~, Dona: . Johnso , President STATE OF FLORIDA COUNTY OF p~ &..-J, Sworn to (or atlinne<!) .od subscribe<! b~or. me this (, ~day of ~ ,2002, by ~ f./ ~ho v-"is personally known to me or _ has produ a as identification ~0...J- tiae-- ~ Not ry Public ? State of Florida My commission expires: r C --:NC AR 5 ' MARSH}. ALUlN CKtliN NorMY pUBUC Sf ATE OF FLORIDA COMMISSIoN NO. DD0605(1] MVCOMMrSS!ON I!XF'. ocr. i7,2QllS _:0-0'0_... .'__~_\"n'" I-~ 07/22/2002 11:05 850-922-2579 ~"....~ at SJ'ATE OF FLORIDA COUNTY OF FDCA/LEGAL PAGE 10 MONROE coUNTY BOARD OF COUNTY cOMMISSlONERS ' Sworn to (or affumcd) and sub$cnbed before me this _ day of ,2002, by Charles "Sonny" McCoy, who _ is personally known to me or _ has pto61).ced as ideptification Notal)' Public State of Florida My commission expires: 07/22/2002 11:06 . 850-922-2679 FDCAlLEGAL PAGE 11 EXHIBIT A TO 3E'ITLEMENT AGREEMENT HAWK'S CAY l>RI ANn MAJOR DEVELOPMENT ADDITIONAL PROPOSED AMENDMENTS 1. Further revise condition 9.1H as follows: The applicant may construct 3 maximum of 297 guest units consisting of combinations of no more than ~ 614 bedrooms and 6S4.S 626.5 bathrooms at - Hawk's Cay. The Annlicant 8l!ree~that tb~ 28 additional market rat~ units annroved in Resolutions 037-2002 ~doDt~d on Februarv 12... 2002 shan each contain two bedrooms and 2~ ba.!yrooms. The 18, aff()rdable hotel staff ' Quarters shan consist of 12 units e~H~b with 2 bedrooms and 1 % baths:.] units each wit\1 2 bedrooms and 2 baths: and 3 units eacbwitb 2 bedroom and 1 bath. The ADDlic8nt further al!ree~. that the 28 pdditional market rate units and the 18 affOJ'dable ,hotel starr (~uarters described below shall be subject to the provisions of the Monr:()e County ComDrebensive Plan that limit tbe number of nennits for new residential develoument in order to maintain hurric!lne evacuation clearance times estabJi$bed in the Plan. Therefo~ Monroe Countv shall issue buildine perrnitsJor the 28 market rate units and fOT the 18 affordable units only aC$uth time as the Annlican!..receives a Rate of ~rowth Manal!ement (ROGO) allocation under the Permit Allocation System. or tbe Annlicant aCGuires and extinguishes an equivalent number of bedroomlbatb combiI.1anons from a site or sites within the Middle Kevs subarea. as defined" in Monroe County Code Section 9.5-1:Z0.2b. or from within' another subarea if authorized bv the Monroe CODnn ComDrehensive Plan and/or Monroe Counn Code. If the site of the acauired units is within a - seoarate municinslitv. that municinal 20vernment rnust1 bv resolution, approve the e,;nn2uishments and acknowledl!e that anv new units on 'the site of the ?IcQuired units must receive, a ROGO award. [remaining text unchanged] 2. Further Revise Condition 9~Jh as follows: The Second Supplement Attachment G2 is modified to conform to the reduction of bedrooms and bathrooms sJIedfied in condition 9.1a. FINAL ORDER NO. LW-02-004 STATE OF FLORIDA LAND AND WATER ADJUDICATORY COMMISSION IN RE: A DEVELOPMENT ORDER ISSUED BY MONROE COUNTY WITHIN THE FLORIDA KEYS AREA OF CRITICAL STATE CONCERN APPROVING AN AMENDMENT TO A DEVELOPMENT OF REGIONAL IMP ACT KNOWN AS HAWK'S CAY CASE NO. APP-02-002 / FINAL ORnRR OF nISMISSAL II The above-styled case is hereby dismissed in accordance with Petitioner's (Hawk's Cay Investors, Ltd., and Hawk's Cay Developers, Ltd.) Notice of Voluntary Dismissal filed with the Florida Land and Water Adjudicatory Commission ("Commission") on July 23,2002. A copy of Petitioner's Notice of Voluntary Dismissal is attached hereto and incorporated as Exhibit A. Any party to this Order has the right to seek judicial review of the Order pursuant to section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk ofthe Commission, Office of Policy and Budget, Executive Office of the Governor, The Capitol, Room 1801, Tallahassee, Florida 32399-0001; and by filing a copy of the Notice of Appeal, accompanied with the applicable filing fees, with the appropriate District Court of Appeal. Notice of Appeal must be filed within 30 days of the day this Order is filed with the Clerk of the Commission. 1 . -'ff(. DONE AND ENTERED this :J, b day of July, 2002. ~fJ.~ 1(t'l DONNA ARDUIN, Secretary \j Florida Land and Water Adjudicatory Commission 5~ILED with the Clerk of the Florida Land and Water Adjudicatory Commission this ~_ day of July, 2002. , II 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the forgoing was delivered to the following ~ persons by United States Mail, facsimile or hand delivery this ~ 5 day of July, 2002. Honorable Jeb Bush Governor The Capitol Tallahassee, Florida 32399 Honorable Robert Milligan Comptroller The Capitol Tallahassee, Florida 32399 Honorable Bob Butterworth Attorney General The Capitol Tallahassee, Florida 32399 Honorable Charles H. Bronson Commissioner of Agriculture The Capitol Tallahassee, Florida 32399 Richard A. Lotspeich, Assistant General Counsel David L. Jordan, Deputy General Counsel Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 James T. Hendrick, Esquire Morgan & Hendrick 317 Whitehead Street Key West, Florida 33040-6542 Danny K. Kolhage, Clerk Board of County Commissioners Monroe County 500 Whitehead Street Key West, Florida 33040 Honorable Katherine Harris Secretary of State The Capitol Tallahassee, Florida 32399 Honorable Tom Gallagher Insurance Commissioner The Capitol Tallahassee, Florida 32399 Honorable Charlie Crist Commissioner of Education The Capitol Tallahassee, Florida 32399 'I I Gregory Munson, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, Florida 32399 Elizabeth C. Bowman, Esquire Gary P. Sams, Esquire Hopping Green & Sams, P.A. 123 S. Calhoun Street Tallahassee, Florida 32314 Honorable Charles McCoy Mayor, Monroe County 500 Whitehead Street Key West, Florida 33040 Timothy J. McGarry, Director Growth Management Division Monroe County 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 3 Carolyn Dekle, Director South Florida Regional Planning Council 3440 Hollywood Boulevard Suite 140 Hollywood, Florida 33021 Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 ~o.~ t' DONNA ARDUIN, Secretary Florida Land and Water Adjudicatory Commission II 1 4 .... ,~mRW)!W STATE OF FLORIDA JUL 23 2002 LAND AND WATER ADJUDICATORY CO:M:MISSION IN RE: A DEVELOPMENT ORDER ISSUED BY MONROE COUNTY WITHIN THE FLORIDA KEYS AREA OF CRITICAL STATE CONCERN APPROVING AN AMENDMENT TO A DEVELOPMENT OF REGIONAL IMP ACT KNOWN AS HAWK'S CAY FLORIDA LAND AND WATER .D.JUDlCATORY eoMMISSIOlf CASE NO. APP-02-001 / HAWKS CAY'S NOTICE OF VOLUNTARY DISMISSAL OF ITS CROSS-APPEAL HAWK' S CAY INVESTORS, LTD. and HAWK'S CAY DEVELOPERS, LTD. (collectively "Hawk's Cay"), by and through its undersigned attorneys, pursuant to Rule 42- II I 2.008(5)(a), Florida Administrative Code (F.A.c.), files this Notice of Voluntary Dismissal of its Cross-Appeal with prejudice. Hawk's Cay states as follows concerning this Notice: 1. The Florida Department of Community Affairs (DCA) on April 16, 2002, served a Notice of Appeal of amendments to the Hawk's Cay DRI development order adopted by Monroe County on February 12,2002 (Resolutions 037-2002 and 038-2002). 2. On April 25, 2002, Hawk's Cay served and filed a Cross-Appeal of Resolution 037-2002. 3. The parties have subsequently entered a Stipulated Settlement Agreement (Agreement) (attached hereto as Exhibit 1) of the Appeal and Cross-Appeal. 4, Pursuant to the terms of the Agreement, the DCA served a Notice of Voluntary Dismissal with prejudice of its appeal on July 22,2002. EXHIBIT A 5. Pursuant to the terms of the Agreement, Hawk's Cay files this Notice of its V oluntary Dismissal of its Cross-Appeal with prejudice. WHEREFORE, Hawk's Cay requests that Florida Land and Water Adjudicatory Commission enter a Final Order of Dismissal based on the voluntary dismissal with prejudice of both the Appeal and Cross-Appeal in this proceeding and providing such other relief as is just and proper. Respectfully submitted this ~ of iT" ~ 2002. HOPPING GREEN AMS, P.A. Elizabet C. B an Florida Bar N . 0319643 GaryP. Sam Florida Bar No. 134594 123 S. Calhoun Street Tallahassee, FL 32314 (850) 222-7500 'I I Attorneys for HAWK'S CAY INVESTORS, LTD. and HAWK'S CAY DEVELOPERS, LTD. 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the original and one copy of the foregoing have been filed by hand delivery with the Office of Planning & Budgeting, Executive Office of the Governor, Room 1801, The Capitol, Tallahassee, Florida 32399, and true ant correct "'-!!) have heen furnished to the persons listed below by the method indicated this 1--3 ( ilay of ~ , 2002. By Certified Mail. Return Receipt Requested Honorable Charles McCoy Mayor of Monroe County 500 Whitehead Street Key West, Florida 33040 Honorable Jeb Bush, Governor 210 The Capitol Tallahassee, FL 32399-0001 (Original filed with FL WAC) Danny K. Kolhage Clerk to the Board of County Commissioners 500 Whitehead Street Key West, Florida 33040 Honorable Katherine Harris Secretary of State LL 10 The Capitol TaHahassee, FL 32399-0001 By U.S. Mail Honorable Bob Butterworth Attorney General PL 01 The Capitol Tallahassee, FL 32399-0001 II Richard A. Lotspeich Assistant General Counsel Department of Community Affairs 2555 Shumard Oak Blvd. Tallahassee, FL 32399-2100 Honorable Charlie Bronson Commissioner of Agriculture LL 29 The Capitol Tallahassee, FL 32399-0001 James T. Hendrick, Esq. Morgan & Hendrick 3 17 Whitehead St. Key West, FL 33040-6542 Honorable Robert F. Milligan Comptroller LL 22 The Capitol Tallahassee, FL 32399-0001 Timothy J. McGarry, AICP Director, Growth Management Division 2798 Overseas Highway, Suite 400 Marathon, Florida 33050 Honorable Tom Gallagher Insurance Commissioner LL 27 The Capitol Tallahassee, FL 32399-0001 Carolyn Dekle, Director South Florida Regional Planning Council 3440 Hollywood Blvd., Suite 140 Hollywood, FL 33021 Honorable Charlie Crist Commissioner of Education LL 24 The Capitol Tallahassee, FL 32399-0001 3 Gregory Munson, Esquire Governor's Legal Office The Capitol, Room 209 Tallahassee, FL 32399-0001 lJ Attorney 4 'I ~IILLIL~~L 11;~O O;J~-:JLL~LU(.J I U'-Ir-ll L-'-.....r"""IL.. STATE OF FLORIDA \ LAND AND WATER ADJUDlCATORY COMMISSION IN RE: A DEVELOJ;lMENT ORDER IsS'iJED BY MONROE COuNTY WlnIIN THE FLORIDA KEYS AREA OF ClUneAL STATE CONCERN .ljlPROVING AN AMENDMENT TO A DEVELOPMENT OF REGIONAL IMP ACT KNOWN AS HAWK'S CAY CASE NO.: APP~02-001 STIPULATED SETlJ-.EMENT AGra.EMENT This Stipulated Settlement Agreement is entered into between the State of Florida, Department- of Community Affairs (the DCA), Monroe County ("County'1, Hawk's Cay Investors, Ltd., md Hawk's Cay Developers, Ltd. (coUcc;tively, "Appllc:ant"), as a complete and tmal senlement orall elaims Tais~din tlJe Appeal and Crosll-Appealin the above-styled proceeding. REelT ALS WHEREAS, the State of Florida, Department of Community Affairs (''DCA''). is the state land 'I I planning agency llnd has the authority to 'ldminiskr llnd enfQrce Chapter 380, Florida Statutes, which jnclude~ proviSions relating to developmmts of regional impact; and _ WHEREAS, Monroe County ("Local Government") is a local government with the duty to consider proposed amendments to development of re~onal impact development orders; and WHEREAS, Hawk's Cay investors, Ltd., and Hawk's Cay Devtlopen, Ltd. (collectively "Applicant") ar.c the own~( and develDper oh Devdopment oiRegional Impact (DR!) in unincorpora'ted Monroe County known as Hawk's Cay; and WHEREAS, the Hawk's Cay DR! Development Order was originally issued by Monroe County as Resolution No. 365-1986 on December 5, 1986; and WHEREAS, aD October 12,2001', the Applicant applied to the County for an amendment to the DR! to include 28 additional hotel units and 18 additional staff units; ilrtd WHEREAS, on FebnIary 12, 2002, tb~ Monroe County Board of County Conunissioners approved tbe application through ResoLJtion 037 .)002 and took the position that the approved additional units are exempt from the Monroe Connty residential Permit Allocation Syst~m under its Rate of Growth Ordinance (ROGO); and EXHIBIT 1 07/22/2~02 11:06 858-922-2679 FDCAlLEGAL PAGE 06 W}3EREAS, the DCA timely tiled a Notice of Appeal and a Petitio~ init~ting an appeal to the: Florida Land And Water A.djudieatory Commission (FLW AC) pursuant to Section 380.07, Ela. Stat., taking the position that the approved units arc 5ubJcct to :RaGO; and wa,EREAS, the Applicant timely filed a Notice of Cross-Appeal ami a Petition initiating a Cross- Appeal to FL W AC piltS\l~nt to Section 380.07 cbalicngini ilDother provision of Reliolution 037 -2002; and WlJEREAS, the parties desire to ~"'liolve thejJ: dispute amicably, without the necessity ofa lengthy administrative proceeding and judicial appeals; NOW I THEREFORE, the parties covenant and agH:e to settle the Ilbovc-$tyled (Me op the foiiowinS terrm: 1. Pursuant to Florida Statute Section 380.06(l9)(c)2., the Applicant shall send a Notice of Proposed Change (NOPC) to the County, DCA Ind the South Florida Regional Planning Council, to incorporate in the Development Ordg the additi.o1;1al terms Ilnd conditions set out in Exhibit "An attached hereto and incorpOfll.ted by reference. The 18 affoniablt hotel st!lff quarters shall consist of 12 units each with 2 bedroo:r:M and 1 Y. baths; 3 units each with 2 bedrooms and 2 baths; lInd 3 \mits each with 2 bedroorm and 1 bath. 2. Mo~oc: COWlty Growrh ManagementDivision !,hall process and recommend approval of the Nope as expeditiously as possible: comisrent with the minor change requirements of Section 380,06(l9)(e)2., Fla. Stat. 'I 3. ,In a lEtter from Secretary SteVe Seibert lo the Honorable Charles MC<:;QY dated April 15, 2002, the DepN'fment provided notification of appeal of Monroe County Resolution No. 037-2002, IelatiIill; to the Hawk's Cay Expansion DRl.ln tbat letter it is stated that..... in this cas!!: I have found it necessary to de-couple the: wastewater issue from the development order issue." It is understood by all parties hereto that in entcrinfl UUO this Sli!ttJe:mcnt agreement the Department takes no position, neither endorsing nor opposing. any development order condition relating to the provision of wastewater treatment to Duck Key and Indies Island. In regard to Conch Key. the Department supports the use of me Hawk's Cay wastewater facility liS one option of providing cost fe:asibte waS'ewater service. 4. Upon the full c;>tecutjon oftl)js agreement and upon the adoption ofthe DRl amendments in Exhibit A hm:to by [he Board of CountY Commissioners. and no later than five (5) dllYS after tbe Isrer 07/22/2002 11:06 850-922-2679 FDCA/LEGAL PAGE 07 ,', action. the DCA shall valurttarily dismiss with prejudice its pending appeal \n the above-styled 'ease, and shall not file a subsequent appeal challenging the minor changes reflected in Exhibit "A." The parties agtee that t):u: changes in Exhibit "An constitute changes that are Iiot Sub$Wltial deviations and are similar 'in , narurE;, impact and character to the changes enumeratr;d in Florida Statute Section 38Q,06(19)(e)2., .!iubparagraplia a-i, and da nOt cr(!ate the likelihood of any additional regional impact. The pame$ further agree that the propolled changes are con5dent with tht MolU'O~ County COl'Dprehensive :Plan. Land Development Regu};ltj,ons and Principles for Guiding Development in the Flori(b :Keys. S. Within five (5) d:';r, l;~ the DCA filing a dismiual with prejudice purlmant to paragraph 3. above, the Applicant 5ballvoluntllrily dismiss with prejudice its pending cross-a;ppeai in the above-styled ease. 6. If neccuili)' after tbe full execution ofthis agreaacnt, the parties shall file II joint moti~n in the above-styled cue requesting that the FLW AC hold the pending appeal arid cross"appea). in abeyaniie and waive the 60-day requirement for FL WAC action for a time sufficient to, ~now ,the amen4ment proce~ll "I , ' described above to be completed, including reasonable extensions of time as may be necessary. If 'necessary, this motion or request shall met! the time frames set foJ1h in Rule 42-2.008(4), Fla. Admin. Code. 7. In the event of a breaeh ofthis agreement,' all parties ret,ain and shall be entitled ta th~' administrative and judicial remedies ta 'Which they would be entitled on tbe date that this agreement is " executed. g. llris Agreement ,~:f(~:cts the rights and obligations of the parties under Chl'l~ter 380, Flll,. ' Stat. It is not intended to determine or influence the lluthority or decisions of Ilny other state QC local government or agency in issuance of any othcr pennits or approvals whi~h might be requir~d by state l~w , or local ordinance for any development authorizEd by this Agrcement. Any amendment to Of modification oithis Agreement shall not be effective unltss contai.ned in a writing signed by the parties. 9, This Agreement may be execut~d in one or more counterparts, each of whieh shall be deemed au original, but all of which shall together constitute one and the same agreement. Countctpam of, this Agreement with facsimile signatures shall be (leemed origmal counterparts for all purposes; howev.er, each party shall promPtly furnish countr,rpans \vi& original signatures UpOD. ;l:eque!lt. The eff~ctive date 07/22/2~02 11:06 850-922-2679 FDetl/LEGAL PAGE 08 llI1d date of executiQn of this Agreement shall be the date that tbe IDst party li!gD5 and ;lclcnowledges this Agreerm:nt. 1 jlijog- Date' OF COMMUNITY nny Timrnennan, Director, Division of Community Planning, for the Floridll Department of Community Affairs STATE OF FLORIDA COUNTY OF LEON 'W:;. ~ ' Sworn to (or affirmed and subscribed before me this {~ Ciay of 2002, by SQnny Tinunennan, who _ . raon y kIlo e or ~ has produced as iden ficauen ' '-..:-. I I {Vu~~r Notary Public State of Florida My commis$ion expires: ,..,,~ Mlri.m 5nlpca "~:i~ .;r .~ '.My Commi",on C0713213 \"" .;.tl EJlplll!! September 7.1002 07/22/2002 11:a6 85a-922-2679 FDCA/LEGAL PAGE a9 HA WK'S CAY DEVELOPERS, LTD. A :Florida Limited Partnership By: Hawk's Cay Development, Inc. A Florida Corporation, General Partner By: STATE OF FLORIDA COlJNTY OF /4.4, ~ Sworn to ~r_ affirmed) and subscribed b~fore me this 6 '!.i day of ~' , 2002, by' ~ " ~ . who ~s Pf""'!lo',ally known to me or _ has pr auced as identification ~~~ ( Notary Public State of Florida 'I My commission expires: o ' , MARSHA ALlLN C1U!EN NorMY PUBUC SI'Att OIl FLOKtDA COMMISSION NO. D1)060507 MY COMMISSiON fJ(J>. OCfd7.2OC5 ~_.. ."""'...!,~'IIl... ..f\.~'.. HAWK'S CAY INVESTORS, LTD. A Florida Limited Partnership By: Hawk's Cay Management, Inc., Ag;I'IOrida ;orpO~~Gcner'l Partner . ~ ~> By: Don. ~ .. ~hnsO ,pr~;dent STATE OF FLORIDA COUNTY OF f'u.,., &-J, Sworn to (or affinned) aod subscribed b~fore me this t- "!!:day of ~ ,2002, by ~~ f./ .~ho V""is personally known to me or _ has produ a as identification '?1:,~ fdte.- ~ Not ry Public / State of Florida My commission expires: r ci'AL'NC AR 5 ' MAllSit.' ALUiN CRE.EN NorMY pUBUC: Sf ATE OF FLORIDA COMMISSION NO. OD0605Q7 MYCOMM~SS!ON ~.:xl".oct'. i7,2QQ5 _l"..._o_ ..__l_~.n'" ~.,J--' 07/22/2002 11:06 850-922-2679 ~ /1, LOU at STATE OF FLORIDA COUNTY OF FDCA/LEGAL PAGE 10 MONROE coUNTY BOARD OF COUNTY cOMMISSIONERS I Sworn to (or affmncd) and ~\lb$eri.bed before me this _ day of . 2002, by Charles "Sonny" McCoy, who _ is personally known to me or _ hall pi'o(il,1ced as ide:ptification Notary Public State of Florida My connnission expires: 'I I 07/22/20132 11:06 8513-922-2679 FDCA/LEGAL PAGE 11 EXHIBIT A TO SL'ITLEMENT AGREEMENT HAWK'S CAY nRI AND MAJOR DEVELOPMENT ADDITIONAL PROPOSED AMENDMENTS 1. Further revise condition 9.1a as follows: The applicant may construct a maximum of 297 guest units consisting of combinations of DO more than 6G 614 bedrooms and ~ 626.5 bathrooms at - Hawk's Cay. The AunHcant aereel that th~ 28 additional market rate units anoroved in Resolutions 037-2002 ~doDt~d on February 12.3 2002 shall each contain two bedroolns and 2~ ba!..~rooms. The 18 affetrdable hotel staff ' Quarters shan consist of 12 units each with 2 bedrooms and 1 ~ baths:, 3 units each with 2 bedrooms and 2 baths: and 3 units each with 2 bedroom and 1 bath. The Anulicsnt further a2ree~. tbat the 28 pdditional market rate units and the 18 a ffoJ'd able hotel starr tiuarters described below shall be subject to the provisions of the Monroe County Comprehensive Plan that limit tbe number of vermits for new residential develonment in order to maintain hurricane evacuation clearance times estabJi$bed in the Plan. Therefo~ - . . - Monroe County shall issue buildinJ! permits for the 28 market rate units and fOT the 18 affordable units only aj_$uch time as the Aonlicant receives a Rate of Growth Mana~ement (ROGO) allocation under the Permit Allocation System, pr the Anolica,nt acouires and eXlll1;l!uishes an eQuivalent number of bedroomlbath combinations from a site or sHes within the Middle Kevs subarea, as defined. in Monroe County Code Section 9.5-120.2b~ or from within another subarea if authorized bv the Monroe County Comprehensive Plan and/or Monroe County Code. If the site of the acauired units is within 3 sensrate munjciDalitv~ that municillal 20vernment must, bv resolution, approve 1he e,::nn2uishments and acknowledge that any new units on 'the site of the acquired units must receive a ROGO award. [remaining text unchanged] 'I 2. Further Revise Condition 9.1 h as follows: The Second Supplement Attachment G2 is modified to conform to the reduction of bedrooms and bathrooms sQedfied in condition 9.1a.