Item T12
Meeting Date:
11/19/2003
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Add On
Division: County Attorney
AGENDA ITEM WORDING:
Presentation of settlement offer in Hinote Construction, Inc. v. Monroe County.
ITEM BACKGROUND:
Hinote filed suit against the County in June of 2003 claiming violation of its civil rights as a result of the
Planning Commission's denial of Hinote's request to transfer additional commercial square footage for use in
constructing a Walgreen's. Specifically, the Planning Commission approved the transfer of square footage from the
donor site but denied its receipt at the site where Hinote plans to build a Walgreen's. The Growth Management
department had recommended approval of the transfer of the additional square footage to that site to the Planning
Commission. Attorneys for both the Planning Department and the Planning Commission have advised that
Hinote's application was consistent with the code and thus should have been approved. As it currently stands,
Hinote could build a Walgreen's store approximately 14,000 square feet in size but had wanted to build a larger
store of approximately 17,000 square feet.
Hinote filed this action in an apparent attempt to expedite the approval process. It took the Planning
Commission 5 months to issue its order memorializing its decision to deny the receipt of the additional square
footage. Hinote appealed the Planning Commission's denial, by a 3-2 vote, of its application to receive the
additional square footage. The Smart Growth Coalition, which opposes the project, appealed the transfer from the
donor site. The record for both appeals is in the process of being completed so it will be several months before a
decision is reached on those issues.
Hinote indicated in a recent letter that Walgreen's is contemplating withdrawing from the project which,
Hinote asserts, would solidify its damage claim against the County. While the civil rights action appears to be
defensible, it would cost an estimated $40,000.00 to defend it successfully. Should Hinote ultimately prevail on the
administrative appeal, those funds would have been needlessly spent. Growth Management counsel advises that
Hinote administrative appeal has some merit.
Settling the civil rights action under the terms proposed by Hinote would eliminate the litigation costs
associated with both the defense of the civil rights action and Hinote's administrative appeal. However, the County
would still need to defend the Smart Growth Coalition's administrative appeal of the transfer of that square footage
from the donor site and would likely have to defend a challenge that the 17,000 square foot Walgreen's is
inconsistent with the comprehensive plan. Growth Management counsel advises that she believes that both can be
successfully defended.
The terms Hinote proposes are attached.
PREVIOUS RELEVANT BOCC ACTION:
The Board met in executive session on August 20, 2003.
CONTRACT/AGREEMENT CHANGES:
STAFF RECOMMENDATIONS:
Approval
TOTAL COST: BUDGETED: Yes No
COST TO COUNTY: SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year
APPROVED BY: County Atty _ OMBlPurchasing _ Risk Management
DIVISION DIRECTOR APPROVAL, n o~~. /I}/!t
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DOCUMENTATION: Included To Follow_ Not Required ~
DISPOSITION: AGENDA ITEM #
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Law Offices
Nicholas W. Mulick
91645 Overseas Highway
Tavernier, Florida 33070
(305) 852-9292 · (305) 852-8880 FAX
November 4, 2003
Robert B. Shillinger, Jr., ASA
Monroe County Attorney's Office
PO Box 1026
Key West, FL 33041-1026
Via facsimile 305-292-3516
RECEIVED
Re: Hinote Construction vs. Monroe County
NOV 1 0 2003
Dear Mr. Shillinger:
MONROE COUNTY ATTORNEY
I am writing to confirm our recent telephone conversation where I informed you that my
client is at risk of losing it's contract with Walgreens to construct their facility at the subject
property. According to my client, the substantial delay in obtaining the building permit for
this project is causing the Walgreens Company to re-evaluate the feasibility of this project.
As I informed you, if Walgreens Company does withdraw from this project as a result of
Monroe County's denial of a building permit, my client will sustain very substantial
monetary losses, including, but not limited to, the cost of demolishing the existing buildings
in reliance upon Monroe County's issuance of it's conditional use development order. Under
these circumstances, my client will not be in a position to settle this matter and will proceed
with it's damages claim against the county. I, therefore, urge you to bring my client's
settlement proposal to the County Commission's attention as soon as possible. I am very
concerned that any further delays in the resolution of this matter will foreclose the
possibility of an amicable resolution.
Thank you for your anticipated cooperation.
Very truly yours,
NICHOLAS W. MUUCK, PA
~
cc: Hinote Construction Company, Inc.
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ATIORNEYS AT LAw
JAY A. IIERsHoFF
JAMES S. LurINo
NJaIOLAS W. MUUCJC
Kuu A. VON GoNJ1!N
JESSICA RonmNBmto
MtCHEW! D. YANaIULA
RUSSEU. A. YAOEL
Law Offices
Hershofl: Lupino r.:~ Mulick, LL.P,
90130 OLD HtOHWAY
TAVEItND!R. FLORIDA 33070
(305) 852-8440' (305) 852-8848 FAX
LAND USE CooRDINATOR
PE1EIl D. BAaII!U!R
OF CouNsm.
J. AwsoN DIlFOOR. U
July 23,2003
RobertB. Shillinger, Jr., ASA
Monroe County Attorney's Office
PO Box 1026
Key West, FL 33041-1026
Via facsimile 305-292-3516
Re: Hinote Construction vs. Monroe County
Dear Mr. Shillinger:
My client has authorized me to extend to Monroe County an offer to settle the above-
referenced litigation. The terms of the offer are as follows:
1. Within 30 days of the date hereof, Monroe County shall release and issue the
approved building permits for the construction of the Walgreen's Pharmacy
as authorized by Monroe County Planning Commission Resolution P21-01
approving my client's Minor Conditional Use development application.
2. Upon expiration of the appeal period for the building permit if no appeal is
filed, or, if an appeal is filed, the successful defense by my client of the appeal,
my client shall execute and file a dismissal of the suit with prejudice.
3. The parties will execute and exchange mutual general releases.
4. Each party shall be responsible for their own attorneys fees and costs of suit.
Please communicate this offer to your client and advise me of your client's response as soon
as possible. Thank you for your anticipated prompt attention to this matter.
Very truly yours,
HERSHOFF, LUPINO & MUUCK
RECEIVED
JUL 2 4 2003
cc:
Hinote Construction Company, Inc.
MONROE COUNTY ATTORNEY