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FINAL ORDER NoPIIW-M:oiz:

1

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STATE OF FLORIDA ' /, , I/ I:Jo

LANDANDWATERADJUDICATORYCOMMISSION /;/,

DEPARTMENT OF COMMUNITY AFFAIRS,

Petitioner,

vs. FLWAC CASE NO.: APP-09-008

DOAH CASE NO.: 10-0547DRI

MONROE COUNTY, LEO F. WINTERLING and JAMES A. WINTERLING,

                                      Respondents.                               

/

FINAL ORDER OF DISMISSAL

This cause came before the Secretary of the Florida Land and Water Adjudicatory Commission upon the "Notice of Voluntary Dismissal" filed by the Department of Community Affairs on August 2, 2011. A copy of the "Notice of Voluntary Dismissal" is attached and incorporated as "Exhibit A."

IT IS ORDERED that the proceeding is dismissed.

qQ    

DONE AND ORDERED this _l_\_ day of August, 2011.

NOTICE OF RIGHTS

Any party to this Order has the right to seek Judicial review of the Final 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 of the 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 by 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.

CDANIEL, Secretary Florida Land and Water Adjudicatory Commission

1 I.+w'ILED with the Clerk of the Florida Land and Water Adjudicatory Commission this

Clerk, Florida Adjudicatory Commissio

_     day of August, 2011.

CERTIFICATE OF SERVICE

lerk, Florida L

an

Adjudicatory Commission

I HEREBY CERTIFY that a true and correct copy of the foregoing was delivered to the following persons by hand delivery, electronic delivery, or US Mail this day of August, 2011.

,

Honorable Rick Scott Governor

The Capitol

Tallahassee, Florida 32399

Honorable Pam Bondi Attorney General

The Capitol

Tallahassee, Florida 32399

L. Mary Thomas, Esquire Governor's Legal Office Room 209, The Capitol

Tallahassee, Florida 32399-0001

William Buzzett, Secretary Deborah Kearney, General Counsel

Richard Shine, Assistant General Counsel Department of Community Affairs

2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

B. Jack Osterholt Executive Director

South Florida Regional Planning Council 3440 Hollywood Boulevard

Suite 140

Hollywood, Florida 33021

Honorable Jeff Atwater Chief Financial Officer The Capitol

Tallahassee, Florida 32399

Honorable Adam Putnam Commissioner of Agriculture The Capitol

Tallahassee, Florida 32399

Suzanne Hutton, Esquire County Attorney Monroe County

1111 12th Street

Suite 408

Key West, Florida 33040

Leo F. Winterling 926 Gerst Road

Perry Hall, MD 21128

David Dehaas

Dehaas Consulting and Design 88975 Overseas Highway

Tavernier, Florida 33070

Florida Administrative Law Reports Post Office Box 385

Gainesville, Florida 32602

Franklin D. Greenman, Esquire Greenman & Manz

5800 Overseas Highway

Suite 40

Marathon, Florida 33050

Honorable Bram D.E. Cantor Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

ORtGINAL

STATE OF FLORIDA

LAND AND WATER ADJUDICATORY COMMISSION

DEPARTMENT OF COMMUNITY AFFAIRS,

Petitioner,

vs. CASE NO. 10-0547DRI

FL LAND & wr:­

                 CO'v

MONROE COUNTY, LEO F. WINTERLING, AND JAMES A. WINTERLING,

Respondents,

                                                                          I

NOTICE OF VOLUNTARY DISMISSAL

The Department of Community Affairs ("Department"), by and through the undersigned counsel, hereby files this Notice of Voluntary Dismissal in Case Number 10- 0547DRI.

1. On February 5, 2010, t e Department filed a Petition for Appeal of a Development Order at FLWAC pursuant to Section 380.07, Florida Statutes. On January 15, 2010, FLWAC filed a Notice of Forwarding Appeal to the Division for assignment of an administrative law judge and further proceedings as noticed.

2. On June 14, 2011, the Monroe County Board of County Commissioners voted to approve a Section 380.032, Florida Statutes Settlement Agreement which was previously agreed to and executed by the individual Winterling Respondents and the Department, and is attached as Exhibit A.

3. The Department determined that the Settlement Agreement fully addresses the compliance issues raised in this matter with respect to the development order issued

   EXHIBIT A

   
   

   
   

   to Leo F. Winterling and James A. Winterling by the Monroe County Planning Commission. On June 23, 2011 the Department filed a Status Report, Notice of Dismissal and Motion to Close File and Relinquish Jurisdiction.

4. On June 23, 2011, the Division entered an Order Relinquishing Jurisdiction to the Administration Commission for entry of a final order. Final disposition of this matter upon relinquishment of jurisdiction by the Division is before FLWAC pursuant to Section 380.07(6), Florida Statutes.

5. Counsel for the Department has conferred with Counsel for the County and is authorized to indicate that the County concurs in this Notice of Voluntary Dismissal. Counsel for the Department has conferred with counsel for Respondents Leo

F. and James A. Winterling and is authorized to indicate that that Respondent has no objection to the dismissal of this appeal.

WHEREFORE, the Department respectfully requests that this Notice of Voluntary Dismissal in Case Number 10-0547DRI be accepted and that such other relief be granted consistent with this Notice of Voluntary Dismissal as is just and fair.

Respectfully submitted this 29th day of July, 2011.

; l&Jl_t: <:111111

! Richar . Shine =------

Assistant General Counsel Shaw P. Stiller

General Counsel

Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100

(850) 922-1683

CERTIFICATE OF SERVICE

lf!

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S. Mail to the persons listed below this 29th day of July, 2011:

t'Ri

By U.S. Mail:

Franklin D. Greenman, Esq. Greenman and Manz

5800 Overseas Highway, Gulfside Village, Suite 40

Marathon, FL 33050

Randolph D. Wall Chairman Planning Commission Monroe County

2798 Overseas Highway

Suite 410

Marathon, FL 33831-9005 By U.S. Mail:

B. Jack Osterholt Executive Director South Florida Regional Planning Council

3440 Hollywood Blvd

Suite 140

Hollywood, FL 33021

By Interagency Mail:

Honorable Rick Scott Governor

The Capitol

Tallahassee, FL 32399-0001

Honorable Pam Bondi Attorney General

The Capitol

Tallahassee, FL 32399-0001

Honorable Heather Carruthers Mayor Monroe County

2798 Overseas Highway,

Suite 400

Marathon, FL 33050

Suzanne Hutton

Monroe County Attorney

1111 12th Street

Suite 408

Key West, FL 33040

Honorable Pam Bondi Chief Financial Officer The Capitol

Tallahassee, FL 32399-0001

Honorable Adam Putnam Commissioner of Agriculture The Capitol

Tallahassee, FL 32399-0810

Honorable Jett Atwater Chief Financial Officer The Capital

Tallahassee, FL 32399-0300

Barbara Leighty, Clerk Administration Commission The Capitol, Room 1801 Tallahassee, FL 32399-0001

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF COMMUNITY AFFAIRS,

Petitioner, DOAH Case No. I 0-0547DRI

APP-09-008

MONROE COUNTY AND LEO F. WINTERLING AND JAMES A. WINTERLING,

Respondent.

-------------------''

FLORIDA STATUTE 380.032(3) SETTLEMENT AGREEMENT

THIS AGREEMENT is entered into between Respondents, MONROE COUNTY, LEO

F. WINTERLING and JAMES A. WINTERLING and Petitioner DEPARTMENT OF COMMUNITY AFFAIRS, as a complete and final settlement of the specific claims raised in the above-styled, Section 380.07, Florida Statutes appeal.

WHEREAS, the DEPARTMENT OF COMMUNITY AFFAIRS ( Department) is the state land planning agency having the power and duty to exercise general supervision of the administration and enforcement of Chapter 380, Florida Statutes, which includes provisions related to Areas of Critical Concern; and

WHEREAS, MONROE COUNTY (Cowity) is a local government located in the Florida

Keys Area of Critical State Concern with jurisdiction to issue development orders in Monroe County, Florida The Cowity Planning Department's mailing address is 2789 Overseas Highway, Suite 410, Marathon, Florida 33050; and

WHEREAS, Leo F. Winterling, Jan1es A. Winterling, George C. Winterling, Paul J. Winterling, and Mark J. Winterling (Applicants) are the owners of a single family dwelling unit on Big Pine Key and the developers of the subject property into a proposed Recreational Vehicle (RV) park. The Applicants mailing address is 9626 Gerst Road, Perry Hall, Maryland 21128; and

WHEREAS, the subject property is located at 31875 Overseas Highway (US l), Big Pine Key and is legally described as Part of Government Lot 4, Section 25, Township 66 South, Range 29 East, Big Pine Key, and adjacent bay bottom Monroe County, Florida,as shown on Exhibit A, having Real,Estate Number 00110730.000000; and

WHEREAS, on April 15, 2009, the Applicants submitted to the Monroe County Planning Department an application (Application) for an amendment to a Major Conditional Use Pennit

in accordance with § 110-70 and § 130-94 of the Monroe County Code for the subject property; and

WHEREAS, the Application proposed to recognize ten transient campground spaces to be redeveloped as transient campground/recreational vehicle (RV) spaces, the maintenance of one (l) existing pennanent single-family dwelling unit, the construction of accessory development (tiki hut, pool and bath houses), and the carrying out of associated site improvements; and

WHEREAS, the subject property is approximately 3.48 acres of uplands and 1.89 acres of submerged lands, the Future Land Use Map (FLUM) designation of the subject parcel is Residential Low (RL), the Zoning is Suburban Residential (SR), and the Tier Designation is a Tier I Natural Area;and

WHEREAS, on September 25, 2009, Monroe County Planning Commission Resolution No. P33-09 adopting the Major Conditional Use Permit was signed by the Chair and rendered to the Department on October 26, 2009; and

WHEREAS, the County's comprehensive plan is implemented, in part, by and through its adopted land development regulations; and

WHEREAS, Section 380.05(16), Florida Statutes provides that no person shall undertake any

development within an area of critical state concern except in conformity with Chapter 380, Florida Statutes; and

WHEREAS, the Monroe County Comprehensive Plan and the Livable CommuniKeys Plan Master Plan for Big Pine Key and No Name Key designate the subject parcel as a Tier I property located within the Key Deer Federal Preserve established for the protection of a threatened and endangered species; and

WHEREAS, a controversy has arisen between the Department, the County and the Applicants regarding whether the transient campground spaces were lawfully established and may be redeveloped as RV spaces, whether the proposed RV use is allowed in the subject property's Residential Low Future Land Use Map (FLUM) designation, whether development of the subject property located within a Tier I category is severely restricted to protect the Key deer and its habitat, and whether the development of the subject property is consistent with the Monroe County Comprehensive Plan, Land Development Regulations and Section 380.0552(7), Florida Statutes, Principles for Guiding Development; and

WHEREAS, on December I0, 2009, the Department filed a Petition for Appeal of a Development Order with the State of Florida Land and Water Adjudicatory Commission which forwarded the appeal to the Division of Administrative Hearings for assignment of an administrative law judge and further proceedings; and

WHEREAS, the Department has authority, pursuant to Section 380.032(3), Florida Statutes (2010), to enter into agreements with any landowner, developer or governmental agency as may be necessary to effectuate the provisions and purposes of Chapter 380 or any rules promulgated thereunder; and

WHEREAS, the parties hereto wish to avoid the expense and delay oflengthy litigation and to resolve the conflict by amending the Major Conditional Use Permit (Conditional Use), to the new terms and conditions set forth herein, which terms and conditions effectuate the provisions and purposes of the Act, and it is in their best interest to do so.

NOW THEREFORE, in consideration of the terms and conditions set forth hereafter and as the full, complete and final settlement of all claims arising out of the controversy set forth above, the parties hereto agree as follows:

1. Representations. The representations set forth above are incorporated herein and are essential elements hereof.

2. Maior Conditiona] Use Permit amendments. The following amendments to the Major Conditional Use Permit are binding on the Wmterling property located at 31875 Overseas Highway (US I), Big Pine Key, and run with the land pursuant to the Florida Statutes 380.032 Settlement Agreement

   1. One market rate dwelling unit (as defined in the Monroe County Code) per two upland acres may be continued or newly constructed on the property if the existing unit is demolished and rebuilt consistent with the Residential Low FLUM designation.

      
      

   2. The subject property is located in a Key Deer Refuge area which has been designated by

      
      

      Monroe Count'/ as a Tier I property. Ten (10) campground spaces are recognized as transient Rate of Growth Ordinance (ROGO) Exemptions which may only be used for future development if they are transferred off of the subject sending property for development in a Tier II or Tier III property as a transient campground space, a RV space, or a hotel unit in the following receiving areas - Big Pine Key subarea (not including No Name Key), the City of Marathon, and the Village oflslamorada. The receiving areas are subject to all of the following conditions: in Monroe County the units may only be transferred to a parceJ on Big Pine Key designated Tier II or Tier III; all receiving sites must be served by a wastewater treatment facility that meets the advanced wastewater treatment standards established by Section 403.086(10), Fla. Stat., or a Department of Environmental Protection construction pennit has been issued for the collection lines for such a facility; transfers to the City of Marathon or the Village oflslamorada shall additionally be limited to sites where no clearing of tropical hardwood hammock is required and may not be transferred to any parcel designated as a VE zone or having tµrtle beach protections or result in the filling of wetlands. With the exception of transfers

      within the Big Pine Key subarea, transfers of ROGO exempt units may be effectuated only upon adoption of a Resolution by the City of Marathon and the Village of Islamorada pursuant to local regulations.

   3. In the event Monroe County Comprehensive Plan and Land Use regulations or State of Florida Area of Critical State Concern land use regulations are amended in the future, all proposed changes to the subject property shaH be effective only by an amendment to the

      
      

      
      

      instant Florida Statutes 380.032 Settlement Agreement if approved by all parties. The Florida Statutes 380.032 Settlement Agreement and any future amendments shall be binding on the land in perpetuity and shall be recorded in the Monroe County public records.

   4. Monroe County shall recognize and document 10 transient campground spaces as Transfer of ROGO Exemptions available to_the subject property that are not eligible for redevelopment on the site. Monroe County and the Respondents Leo and James Winterling shall track and record the transfer of the transient campground spaces to the receiving property as required by the Monroe County Comprehensive Plan and Land Development Regulations governing Transfer of ROGO Exemptions.

3. Amendment of the Maior Conditional Use Permit. The Respondents and the Department hereby agree that the Major Conditional Use approval for the subject property shall be amended as set forth above and all future development shall not proceed without a building permit allocation.

4. Further Proceedings. Conditioned upon Monroe County's adoption of the amendments to the Major Conditional Use Pennit by approval of this Settlement Agreement, the Department shall, within 15 working days of receipt of said amendments file appropriate pleadings with the Division of Administrative Hearings to close the case and relinquish jurisdiction back to the Department.

   
   

5. Entirety of Ae;reement. The parties further agree that this Settlement Agreement

   
   

   
   

   contains the entire and exclusive agreement 1u-nong the parties and may not be modified in any manner except by an instrument in writing and signed by the parties.

6. Duplicate originals. This Settlement Agreement may be executed in any nwnber of originals or counterparts, all of which evidence one agreement, and only one of which may be produced for any purpose.

7. Enforcement. In the event of a breach of this Agreement or failure to comply with any condition of it, or if it has been based upon materially inaccurate information, the Department may enforce this Agreement as provided in Sections 380.05, 380.07, and 380.11, Florida Statutes.

8. Scope of Authority. This Agreement affects the rights and obligations of the parties under Chapter 380, Florida Statutes. It is not intended to influence or determine the authority or decisions of any other state or local government agency in issuance of any other permits or approvals that might be required by state law or local ordinance for any development authorized by this Agreement, or restrict the Department's authority with reg to future developments orders for the Project. It is not intended to limit the authority of the Department with regard to any development other than the Project.

9. Release; Costs and Attorneys Fees. Each party hereto releases the other from any and all claims or demands arising out of the subject dispute. Each party shall bear its own costs and attorneys fees incurred in connection with this matter.

IO. Date of Execution. The date of execution of this Agreement shall be the date that the last party signs and acknowledges this Agreement.

11. Recordation. This Agreement shall run with the land and shall bind, and the benefit shall inure to, respectively, Monroe County, Leo F. Winterling, James A. Winterling, the Department, and their respective successors and assigns. Respondents Leo F. Winterling and James A. Winterling shall record this Agreement in the Public Records of Monroe County, Florida, or Monroe County may record the Agreement at the Respondents' (Winterlings) expense and shall provide a certified copy of the recorded Agreement to the Department within 15 days after receipt of the executed Agreement from the Department.

IN WITNESS WHEREOF, the parties, by and through their respective undersigned duly authorized representatives, have executed this Agreement on the dates and year below written.

BALANCE OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGES TO FOLLOW

WITNESSES:

Witness as to Winterling

Jd!fue, ±+a11\L        

Print Name

STATE 01' FD 114.tJA N'On_\'{ff'()

COUNTY OF M!»moE\J\\Q'( td( y

The foregoing instrument was.acknowledged. before me this zn::iday of

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2011. by LEO F. WINTERLING who is personally known to me or who

has produced 1X:V1\ Yf  l)J \\Jf (S ) \QCO:X: as identification.

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FROM: FAX NO. Jun. 01 2011 12:05PM P7

JAMES A. WINTERLING

STATE OFFLOR.IDA

COUNTY OF MONROE

Q:, lnginstrumcntwa., aclarowledj:ed bcfllre me this /s-fday of.

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GEORGE C. WlNTERLlNG

STATEOF

COUNTY OF<M:::O.NnRrOo!!I

The foregoing inslrument was ackmwledgcd before me this _j_ day of

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WITNESSES: PAUL J. WINTERLING

PauJJ. W&"ling

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Print Name

STATE OF FLORIDA COUNTY OF MONROE

The foregoing instrument was acknowledged before me this Jli!:"day of

JONATHAN R. WILLIAMS

Notary Public-Maryland Anne Arundel Coun.ty My Lco=m-lm_,ifssio--n_ E,1xyp_ires

2011, by PAUL J. WINTERLING who is personally known to me or who has produced - H ttty--t-'--/a.,, d J-k_fc ..-7>_,1vl-'"Y1"--.'.l.1......      as identification.

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STA1E OF FLORIDA

COUNTY OF MONROE

MONROE COUNTY

The foregoing instrument was acknowledged before me this1.Z day of

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DEPARTMENT OF COMMUNITY AFFAIRS

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STATE OF FLORIDA

COUNTY OF LEON . .

   regoing instrument was acknowledged before me th1is      day of

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produced                                                                                                 as identification.

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MYeot.USSIONfDDQU81!8 EXPIRES: 7, 2014

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Docket for Case No: 10-000547DRI

Orders for Case No: 10-000547DRI