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Item P13BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: May 21, 2008 Division: County Attorney Bulk Item: Yes _ NO x Staff Contact Person: Bob Shillinger, x3470 AGENDA ITEM WORDING: Approval of settlement agreement in John Benson v. Monroe County & Largo 103, LLP. CAP 07-603. ITEM BACKGROUND: John Benson filed suit against the County to challenge the rezoning of the former Zacharias property that is now owned by Largo 103, LLP. During the public hearing, opponents of the rezoning submitted petitions protesting the rezoning. The vote to rezone passed on a 3-2 vote. An issue arose over whether there were a sufficient number of timely protest petitions to require a supermajority vote to rezone the property as set forth under § 9.5-51l(d)(5)c of the County Code. The County Attorney opined that because less than twenty percent (201/6) of the affected owners had filed timely protest petitions, a simple majority vote was all that was required for the rezoning ordinance to pass. That opinion was based, in part, on an interpretation of § 9.5-511(d)(5)c that included the State of Florida, by virtue of its ownership of the U.S. 1 right of way, within the pool of owners of relevant parcels for the purposes of calculating whether the twenty percent (20%) threshold had been met. The few courts throughout the nation which have addressed the issue of whether a governmental entity's ownership interest in a publicly owned roadway should be included when calculating whether the protest threshold has been met have split on this narrow issue. Under the terms of the proposed settlement, Benson would agree to drop his suit if the County agrees to interpret § 9.5-511(d)(5)c of the County Code in the future to mean that -- for purposes of calculating the twenty percent (20%) rule -- the State of Florida would not be included in those calculations if its only relevant ownership interest is of the U.S. 1 right of way. This interpretation of § 9.5-511(d)(5)c would be binding upon the Commission on other rezoning requests when and if this issue arises in the future for as long as the current version of the ordinance remains in substantially the same form. This matter is being added on because the terms were negotiated after the agenda deadline passed. However, the final hearing has been scheduled for June 9, 2008, prior to the June BOCC meeting. PREVIOUS RELEVANT BOCC ACTION: On 6/20/07, the Board adopted ordinance 033-2007 by a 3-2 vote which rezoned the relevant property. CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATIONS: Approval. TOTAL COST: None BUDGETED: n/a COST TO COUNTY: None. SOURCE OF FUNDS: n/a REVENUE PRODUCING: n/a APPROVED BY: County Arty xx OMB/Purchasing _ Risk Management _ DOCUMENTATION: Included xx DISPOSITION: AGENDA ITEM # Revised 2/05 �Zc t ��;,._ „. ° i_ C� "Ale IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT JN AND FOR MONROE COUNTY, FLORIDA JOHN BENSON, Petitioner, a MONROE COUNTY, FLORIDA By and through MONROE COUNTY BOARD OF COUNTY COMISSIONERS And LARGO 103 LLP, Respondents. CASE NO. 07-CA-603-P SETTLEMENT AGREEMENT WHEREAS the Petitioner John Benson (hereinafter "Benson") brought this action to challenge by certiorari review the process utilized in the decision of the Respondent Board of County Commissioners of Monroe County, Florida (hereinafter the "County", "BOCC" or "Commission" as appropriate) to adopt ordinance 033-2007; and WHEREAS the County, through ordinance 033-2007, amended its land use district map, also known as the zoning map, for property described as Tract A, Cross Key Waterways Estates, Section 3, Key Largo, Monroe County, Florida and having a real estate parcel number of 00554420-000000 (hereinafter the "subject property") to change the zoning for the subject property from sub urban commercial (SC) to urban residential (UR); and WHERAS the subject property is now owned by Respondent Largo 103 LLP (hereinafter "property owner"); and WHEREAS the Petition for Writ of Certiorari raises issues of law that no Florida Court has provided definitive guidance on, including, but not limited to whether the State of Florida, by virtue of it's ownership of the U.S. 1 right of way, should be included in the calculations of relevant owners for which a sufficient number is needed to trigger the extraordinary majority voting requirement to rezone a property as set forth in § 9.5- 511(d)(5)(c) of the Monroe County Code; and WHEREAS the record of the proceedings before the County Commission does not reflect the totality of the circumstances considered in reaching the determinations made by the County; and WHEREAS the parties desire to buy peace in this matter by resolving their differences without the expense and uncertainty of further litigation; and WHEREAS the parties have been able to resolve their differences in a manner which satisfies the interests of all three parties; and WHEREAS each party has had the opportunity to consult with legal counsel of its own choosing and each party agrees to bear its own attorney's fees and costs; NOW THEREFORE, the parties agree to resolve the above -styled matter as follows: Benson agrees to dismiss his Petition for Writ of Certiorari in the above - styled case. 2. The County shall interpret § 9.5-511(d)(5)(c) of the Monroe County Code as follows: a. To exclude the State of Florida, by virtue of its ownership of the U.S. 1 right of way, as a property owner, from any future calculations with regard to ownership and/or area of relevant parcels of property for the purpose of determining whether a supermajority vote is required to approve a zoning change; b. A person who owns more than one lot located within 200 feet of the subject property of the proposed zoning change shall have the right to file protest petitions for each lot owned. 3. The parties agree to submit an agreed order to the Court which reflects the terms of this agreement. IT IS SO AGREED AS OF THE LAST DATE SET FORTH BELOW. The Petitioner, Witness John Benson, Petitioner date For the Respondent Largo 103 LLP Witness date (name) 3 (SEAL) Attest Danny L. Kolhage, Clerk Deputy Clerk Dated For Respondent, Board of County Commissioners of Monroe County, Florida Z Mayor BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: Mg 21,-2008 Bulk Item: Yes No x Division: County Attorney Staff Contact Person: Bob Shillin,ger, x3470 AGENDA ITEM WORDING: Approval of settlement agreement in John Benson v. Monroe County Como 103, LLP, CA P 07-603. ITEM BACKGROUND: John Benson filed suit against the County to challenge the rezoning of the former Zacharias property that is now owned by Largo 103, LLP. During the public hearing, opponents of the rezoning submitted petitions protesting the rezoning. The vote to rezone passed on a 3-2 vote. An issue arose over whether there were a sufficient number of timely protest petitions to require a supermajority vote to rezone the property as set forth under § 9.5-511(d)(5)c of the County Code. The County Attorney opined that because less than twenty percent (20%) of the affected owners had filed timely protest petitions, a simple majority vote was all that was required for the rezoning ordinance to pass. That opinion was based, in part, on an interpretation of § 9.5-511(d)(5)c that included the State of Florida, by virtue of its ownership of the U.S. 1 right of way, within the pool of owners of relevant parcels for the purposes of calculating whether the twenty percent (20%) threshold had been met. The few courts throughout the nation which have addressed the issue of whether a governmental entity's ownership interest in a publicly owned roadway should be included when calculating whether the protest threshold has been met have split on this narrow issue. Under the terms of the proposed settlement, Benson would agree to drop his suit if the County agrees to interpret § 9.5-511(d)(5)c of the County Code in the future to mean that -- for purposes of calculating the twenty percent (20%) rule -- the State of Florida would not be included in those calculations if its only relevant ownership interest is of the U.S. 1 right of way. This interpretation of § 9.5-511(d)(5)c would be binding upon the Commission on other rezoning requests when and if this issue arises in the future for as long as the current version of the ordinance remains in substantially the same form. This matter is being added on because the terms were negotiated after the agenda deadline passed. However, the final hearing has been scheduled for June 9, 2008, prior to the June BOCC meeting. PREVIOUS RELEVANT BOCC ACTION: On 6/20/07, the Board adopted ordinance 033-2007 by a 3-2 vote which rezoned the relevant property. CONTRACT/AGREEMENT CHANGES: n/a STAFF RECOMMENDATIONS: Approval. TOTAL COST: None BUDGETED: n/a COST TO COUNTY: None. SOURCE OF FUNDS: n/a REVENUE PRODUCING: n/a APPROVED BY: County Atty xx OMB/Purchasing Risk Management DOCUMENTATION: Included xx DISPOSITION: AGENDA ITEM # Revised 2/05 IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL. CIRCUIT ,IN AND FOR MONROE COUNTY, FLORIDA JOHN BENSON, Petitioner, V. MONROE COUNTY, FLORIDA By and through MONROE COUNTY BOARD OF COUNTY COMISSIONERS And LARGO 103 LLP, Respondents. CASE NO. 07-CA-603-P 1 SETTLEMENT AGREEMENT WHEREAS the Petitioner John Benson (hereinafter "Benson") brought this action to challenge by certiorari review the process utilized in the decision of the Respondent Board of County Commissioners of Monroe County, Florida (hereinafter the "County", "BOCC" or "Commission" as appropriate) to adopt ordinance 033-2007; and WHEREAS the County, through ordinance 033-2007, amended its land use district map, also known as the zoning map, for property described as Tract A, Cross Key Waterways Estates, Section 3, Key Largo, Monroe County, Florida and having a real estate parcel number of 00554420-000000 (hereinafter the "subject property") to change the zoning for the subject property from sub urban commercial (SC) to urban IF residential (UR); and WHERAS the subject property is now owned by Respondent Largo 103 LLP (hereinafter "property owner"); and WHEREAS the Petition for Writ of Certiorari raises issues of law that no Florida Court has provided definitive guidance on, including, but not limited to whether the State of Florida, by virtue of it's ownership of the U.S. 1 right of way, should be included in the calculations of relevant owners for which a sufficient number is needed to trigger the extraordinary majority voting requirement to rezone a property as set forth in § 9.5- 522(d)(5)(c) of the Monroe County Code; and WHEREAS the record of the proceedings before the County Commission does not reflect the totality of the circumstances considered in reaching the determinations made by the County; and WHEREAS the parties desire to buy peace in this matter by resolving their differences without the expense and uncertainty of further litigation; and WHEREAS the parties have been able to resolve their differences in a manner which satisfies the interests of all three parties; and WHEREAS each party has had the opportunity to consult with legal counsel of its own choosing and each party agrees to bear its own attorney's fees and costs; NOW THEREFORE, the parties agree to resolve the above -styled matter as follows: 1. Benson agrees to dismiss his Petition for Writ of Certiorari in the above - styled case. 2. The County shall agree to interpret § 9.5-522(d)(5)(c) of the Monroe County Code so as to exclude the State of Florida, by virtue of its ownership of the U.S. 1 right of way, from any future calculations with regard to ownership and/or area of relevant parcels of property for the purpose of determining whether a supermajority vote is required to approve a zoning change. 3. The parties agree to submit an agreed order to the Court which reflects the terms of this agreement. IT IS SO AGREED AS OF THE LAST DATE SET FORTH BELOW. Witness Witness (SEAL) Attest Danny L. Kolhage, Clerk Deputy Clerk Dated The Petitioner, John Benson, Petitioner date For the Respondent Largo 103 LLP date (name) (title) For Respondent, Board of County Commissioners of Monroe County, Florida Mayor MONROE COUNT AT R EY AP R E OBER R. HILL G CHIEF AS$1sTAV cou Y ATTORNEY 3 Date:.SS (( ...."