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Item D1 BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY Meeting Date: December 3.2008 Division: County Attorney Bulk Item: Yes _ No--1L. Staff Contact: Bob Shillinger x3470 AGENDA ITEM WORDING: A public hearing to approve a compliance agreement to resolve the outstanding issues associated with Comprehensive Plan Amendment package 08-01 (working waterfront amendments). ITEM BACKGROUND: The working waterfronts Comprehensive Plan amendment was adopted by the BOCC (Ordinance 008-2008) and rendered to the Florida Department of Community Affairs (DCA) on February 4, 2008. Upon completion of its review, in a letter dated March 31, 2008, the DCA issued its notice of intent to find the amendment not in compliance. That finding by DCA triggered a statutorily required administrative challenge. The County, DCA, and several interveners have been engaged in settlement discussions in attempt to amicably resolve that challenge. Those discussions resulted in a tentative settlement agreement also known as a compliance agreement. Under F. S. 163.3184(16)(c), before the County can approve the compliance agreement, it must hold a public hearing on that agreement. If the compliance agreement is approved, the County would then hold an adoption hearing to consider an ordinance implementing the negotiated amendments to the comprehensive plan. PREVIOUS RELEVANT BOCC ACTION: June 2008 - BOCC directed staff to negotiate a settlement of the administrative challenge to the comprehensive plan amendments. February 2008 - Final adoption of the Comprehensive Plan amendment for working waterfronts. September 2007 - Approved transmittal of a Comprehensive Plan amendment for working waterfronts. September 2006 - Directed staff to enter into an inter-local agreement with South Florida Regional Planning Council to develop a Comprehensive Plan amendment for working waterfronts. CONTRACT/AGREEMENT CHANGES: nla STAFF RECOMMENDATIONS: Approval TOTAL COST: N/A BUDGETED: Yes --1L. No COST TO COUNTY: REVENUE PRODUCING: Yes N/A SOURCE OF FUNDS: No AMOUNTPERMONTH_ Year APPROVED BY: County Atty ~ OMBlPurchasing _ Risk Management_ DOCUMENTATION: Included Not Required_ DISPosmON: AGENDA ITEM # D. L STATE OF FLORIDA DMSION OF ADMINISTRATIVE HEARINGS DEPARTMENT OF COMMUNITY AFFAIRS, Petitioner, v. DCA Docket No. 08-I-NOI-4401-(A)-(N) DOAH CASE NO. 08-2035GM MONROE COUNTY, FLORIDA, Respondent, and ROBBIE'S SAFE HARBOR MARINE ENTERPRISES, INC.; SAFE HARBOUR PROPERTIES, LLC; KW RESORT UTILITIES CORP.; PROTECT KEY WEST AND THE FLORIDA KEYS, INC., d/b/a LAST STAND; and NEW STOCK ISLAND PROPERTIES, LLC., Intervenors. STIPULATED SETTLEMENT AGREEMENT TIDS STIPULATED SETTLEMENT AGREEMENT is entered into by and between the State of Florida, Department of Community Affairs, Monroe County, and Intervenors New Stock Island Properties, LLC, Robbie's Safe Harbor Marine Enterprises, Inc., Safe Harbour Properties, LLC, KW Resort Utilities Corp., and Protect Key West and the Florida Keys, Inc., d/b/a Last Stand, as a complete and final settlement of all claims raised in the above-styled proceeding. RECITALS WHEREAS, the State of Florida, Department of Community Affairs (DCA or Department), is the state land planning agency and has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163. Part II, Florida Statutes; and WHEREAS, Monroe County (Local Government) is a local government with the duty to adopt comprehensive plan amendments that are "in compliance;" and WHEREAS, Intervenors New Stock Island Properties, LLC, Robbie's Safe Harbor Marine Enterprises, Inc., Safe Harbour Properties, LLC, KW Resort Utilities Corp., and Protect Key West and the Florida Keys, Inc., d/b/a Last Stand, intervened in this case and have been granted party status; and WHEREAS, on February 4, 2008, the Local Government adopted Ordinance No. 008- 2008 adopting amendments to the Monroe County 2010 Comprehensive Plan (plan Amendments); and WHEREAS, the Plan Amendments propose to amend the Future Land Use Element and Conservation and Coastal Management Element of the Monroe County 2010 Comprehensive Plan related to preservation of recreational and commercial working waterfronts, including development criteria for the Maritime Industries Land Use District within the Industrial future land use category; and WHEREAS, the Department issued its Notice ofIntent and Statement of Intent regarding the Plan Amendments on March 31, 2008; and WHEREAS, as set forth in the Statement of Intent, the Department contends that the Plan Amendments are not "in compliance"; and WHEREAS, pursuant to Section 163.3184(10), Florida Statutes, DCA has initiated the above-styled formal administrative proceeding challenging the Plan Amendments; and WHEREAS, the parties executing this Stipulated Settlement Agreement wish to avoid the expense, delay, and uncertainty of lengthy litigation and to resolve this proceeding under the . terms set forth herein, and agree it is in their respective mutual best interests to do so; NOW, THEREFORE, in consideration of the mutual covenants and promises herein below set forth, and in consideration of the benefits to accrue to each of the parties, the receipt and sufficiency of which are hereby acknowledged, the parties hereby represent and agree as follows: GENERAL PROVISIONS 1. Definitions. As used in this agreement, the following words and phrases shall have the following meanings: a. Act: The Local Government Comprehensive Planning and Land Development Regulation Act, as codified in Part II, Chapter 163, Borida Statutes. b. AlZreement: This stipulated settlement agreement. c. Comprehensive Plan Amendment or Plan Amendment: Comprehensive plan amendment adopted by the Local Government on February 4, 2008, as Ordinance No. 008- 2008. d. DOAH: The Florida Division of Administrative Hearings. e. In comoliance or into comoliance: The meaning set forth in Section 163.3184(1)(b), Florida Statutes. f. Notice: The notice of intent issued by the Department to which was attached its statement of intent to find the Plan Amendments not in compliance. g. Petition: The petition for administrative hearing and relief filed by the Department in this case. h. Remedial Action: A remedial plan amendment, submission of support document or other action described in the statement of intent or this Agreement as an action which must be completed to bring the Plan Amendments into compliance. i. Remedial Plan Amendment: An amendment to the plan or support document, the need for which is identified in this Agreement, including its exhibits, and which the Local Government must adopt to complete all remedial actions. Remedial plan amendments adopted pursuant to this Agreement must, in the opinion of the Department, be consistent with and substantially similar in concept and content to the ones identified in this Agreement or be otherwise acceptable to the Department. J. Statement of Intent: The statement of intent to find the Plan Amendment not in compliance issued by the Department in this case. k. Support Document: The studies, inventory maps, surveys, data, inventories, listings or analyses used to develop and support the Plan Amendments or Remedial Plan Amendment. 2. Department Powers. The Department is the state land planning agency and has the power and duty to administer and enforce the Act and to determine whether the Plan Amendments are in compliance. 3. Ne~otiation of Agreement. The Department issued its Notice and Statement of Int~t to find the Plan Amendments not in compliance, and' filed the Petition in this case to that effect. Subsequent to the filing of the Petition the parties conferred and agreed to resolve the issues in the Petition, Notice and Statement of Intent through this Agreement. It is the intent of this Agreement to resolve fully all issues between the parties in this proceeding. 4. Dismissal. If the Local Government completes the Remedial Actions required by this Agreement, the Department will issue a cumulative Notice of Intent addressing both the Remedial Plan Amendment and the initial Plan Amendments subject to these proceedings. The Department will file the cumulative Notice of Intent with DOAH. The Department will also file a request to relinquish jurisdiction to the Department for dismissal of this proceeding or for realignment of the parties, as appropriate under Section 163.3184(16)(f), Florida Statutes. 5. Description of Provisions not in Compliance and Remedial Actions: Lellal Effect of Agreement. Exhibit A to this Agreement is a copy of the Department's Statement of Intent, which identifies the provisions the Department contends are not in compliance. Exhibit B contains Remedial Actions needed for compliance. Exhibits A and B are incorporated into this Agreement by this reference. This Agreement constitutes a stipulation that if the Remedial Actions are accomplished, the Plan Amendments will be in compliance. 6. Remedial Actions to be Considered for Adoption. The Local Government agrees to consider for adoption by formal action of its governing body all Remedial Actions described in Exhibit B no later than the time period provided for in this Agreement. 7. Adoption or Aporovat of Remedial Plan Amendments. Within 60 days after execution of this Agreement by the parties, the Local Government shall consider for adoption all Remedial Actions or Plan Amendments and amendments to the Support Documents. This may be done at a single adoption hearing. Within 10 working days after adoption of the Remedial Plan Amendment, the Local Government shall transmit 3 copies of the Remedial Plan Amendment to the Department as provided in Rule 9J-l1.011(5), Florida Administrative Code. The Local Government also shall submit one copy of the Remedial Plan Amendment to the regional planning agency and to any other unit of local or state government that has filed a written request with the governing body for a copy of the Remedial Plan Amendment, and shall provide a copy to any party granted Intervenor status in this proceeding. The Remedial Plan Amendment shall be transmitted to the Department along with a letter which describes the remedial action adopted for each part of the comprehensive plan amended, including references to specific portions and pages. 8. Acknowledgment. All parties to this Agreement acknowledge that the "based upon" provisions in Section 163.3184(8), Florida Statutes, do not apply to the Remedial Plan Amendment. 9. Review of Remedial Plan Amendment and Notice ofIntent. Within 30 days after receipt of the adopted Remedial Plan Amendment and any necessary Support Documents, the Department shall issue a Notice of Intent pursuant to Section 163.3184, Florida Statutes, for the adopted Amendments in accordance with this Agreement. a. In Comoliance: If the adopted Remedial Actions satisfy this Agreement, the Department shall issue a cumulative Notice of Intent addressing both the Plan Amendments and the Remedial Plan Amendment as being in compliance. The Department shall file this cumulative notice with DOAH and shan move to realign the parties or to have this proceeding dismissed, as may be appropriate. b. Not in Compliance: If the Remedial Actions do not satisfY this Agreement, the Department shan issue a Notice oflntent to find the Remedial Plan Amendment not in compliance and shall forward the notice to DOAH for consolidation with the pending proceeding. 10. Effect of Amendment. Adoption of any Remedial Plan Amendment shall not be counted toward the frequency restrictions imposed upon plan amendments pursuant to Section 163.3187(1), Florida Statutes. 11. Purpose of this Agreement: Not Establishing Precedent. The parties enter into this Agreement in a spirit of cooperation for the purpose of avoiding costly, lengthy and unnecessary litigation and in recognition of the desire for the speedy and reasonable resolution of disputes arising out of or related to the Plan Amendments. The acceptance of proposals for purposes of this Agreement is part of a negotiated agreement affecting many factual and legal issues and is not an endorsement of, and does not establish precedent for, the use of these proposals in any other circumstances or by any other local government. 12. Approval bv Governinl1 Body. This Agreement has been approved by the Local Government's governing body at a public hearing advertised at least 10 days prior to the hearing in a newspaper of general circulation in the manner prescribed for advertisements in Section 163.3184(16Xc), Florida Statutes. This Agreement has been executed by the appropriate officer as provided in the Local Government's charter or other regulations. 13. Changes in Law. Nothing in this Agreement shan be construed to relieve any party from adhering to the law, and in the event of a change in any statute or administrative regulation inconsistent with this Agreement, the statute or regulation shall take precedence and shall be deemed incorporated in this Agreement by reference. 14. Other Persons Unaffected. Nothing in this Agreement shall be deemed to affect the rights of any person not a party to this Agreement. This Agreement is not intended to benefit any third party. 15. Attorney Fees and Costs. Each party shall bear its own costs, including attorneys fees, incurred in connection with the above-captioned case and this Agreement. 16. Effective Date. This Agreement shall become effective immediately upon execution by the Department and the Local Government. 17. Filing and Continuance. This Agreement shall be filed with DOAH by the Department after execution by the parties. Upon the filing of this Agreement, the administrative proceeding in this matter shall be stayed by the Administrative Law Judge in accordance with Section 163.3 I 84(16)(b), Florida Statutes. 18. Retention of Right to Final Hearing. The parties to this Agreement hereby retain the right to have a final hearing in this proceeding in the event of a breach of this Agreement, and nothing in this Agreement shall be deemed a waiver of such right. Any party to this Agreement may move to have this matter set for hearing if it becomes apparent that any other party whose action is required by this Agreement is not proceeding in good faith to take that action. 19. Construction of Agreement. AU parties to this Agreement are deemed to have participated in its drafting. In the event of any ambiguity in the terms of this Agreement, the parties agree that such ambiguity shall be construed without regard to which of the parties drafted the provision in question. 20. Entire Agreement. This is the entire agreement between the parties and no verbal or written assurance or promise is effective or binding unless included in this document. 21. Governmental Discretion Unaffected. This Agreement is not intended to bind the Local Government in the exercise of governmental discretion which is exercisable in accordance with law only upon the giving of appropriate public notice and required public hearings. 22. Multiple Oril,linals. This Agreement may be executed in any number of originals, all of which evidence one agreement, and only one of which need be produced for any purpose. 23. Ca-ptions. The captions inserted in this Agreement are for the purpose of convenience only and shall not be utilized to construe or interpret any provision of this Agreement. In witness whereof, the parties hereto have caused this Agreement to be executed by their undersigned officials as duly authorized. FLORIDA DEPARTMENT OF COMMUNITY AFFAIRS Approved as to furm and legality: Charles Gauthier, AICP, Director Division of Community Planning Richard E. Shine Assistant General Counsel .2008 ,2008 Date Date STATE OF FLORIDA COUNTY OF LEON The foregoing instrument was acknowledged before me this _ day of , 2008, by CHARLES GAUTHIER, who is personally known to me or who has produced as identification and who did/did not take an oath. (SEAL) NOTARY PUBLIC Name (typed, printed or stamped) My commission expires: MONROE COUNTY, FLORIDA ,2008 By: Date George Neugent, Mayor ATTEST: DANNY L. KOLHAGE, CLERK MONROE COUNTY ATTORNEY APPR'V<=D RM: By R RT 8. SHILLINGER, JR. CHIEF ASSfr~'" Cf!.~ORNEY Dale: STATE OF FLORIDA COUNTY OF MONROE The foregoing instrument was aclmowledged before me this _ day of , 2008, by George Neugent, who is personally lmown to me or who has produced as identification and who did/did not take an oath. (SEAL) NOTARY PUBLIC Name (typed, printed or stamped) My commission expires: NEW STOCK ISLAND PROPERTIES, LLC By ,2008 STATE OF COUNTY OF The foregoing instrument was acknowledged before me this _ day of , 2008, by , who is personally known to me or who has produced as identification and who did/did not take an oath. (SEAL) NOTARY PUBLIC Name (typed, printed or stl!ffiped) My commission expires: ROBBIE'S SAFE HARBOR MARINE ENTERPRISES, INC. By ,2008 STATE OF FLORIDA COUNTY OF MONROE The foregoing instrument was acknowledged before me this _ day of , 2008, by , who is personally known to me or who has produced as identification and who did/did not take an oath. (SEAL) NOTARY PUBLIC Name (typed, printed or stamped) My commission expires: SAFE HARBOUR PROPERTIES, LLC By ,2008 STATE OF FLORIDA COUNTY OF MONROE The foregoing instrument was acknowledged before me this day of . 2008, by , who is personally known to me or who has produced as identification and who did/did not take an oath. (SEAL) NOTARY PUBLIC Name (typed, printed or stamped) My commission expires: KW RESORT UTILITIES CORP. By ,2008 STATE OF FLORIDA COUNTY OF MONROE The foregoing instrument was acknowledged before me this _ day of , 2008, by . who is personally known to me or who has produced as identification and who did/did not take an oath. (SEAL) NOTARY PUBLIC Name (typed, printed or stamped) My commission expires: PROTECT KEY WEST AND THE FLORIDA KEYS, INC., d/b/a LAST STAND By AI Sullivan, President ,2008 STATE OF FLORIDA COUNTY OF MONROE The foregoing instrument was acknowledged before me this _ day of , 2008, by AI Sullivan, who is personally known to me or who has produced as identification and who did/did not take an oath. (SEAL) NOTARY PUBLIC Name (typed, printed or stl!lllped) My commission expires: