10-000547DRI Department Of Community Affairs vs. Monroe County, Leo F. Winterling, And James A. Winterling Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, June 23, 2011.

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FINAL ORDER NoPIIW-M:OiZ)

STATE OF FLORIDA /7 I .. JO

LAND AND WATER ADJUDICATORY COMMISSION

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.

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 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 ofthe 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.

JERRY L. CDANIEL, Secretary

Florida Land and Water

Adjudicatory Commission

\\ \\. tLFILED with the Clerk of the Florida Land and Water Adjudicatory Commission this

__ day of August, 2011.

CERTIFICATE OF SERVICE

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 Honorable Jeff Atwater

Governor Chief Financial Officer

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Honorable Pam Bondi Honorable Adam Putnam

Attorney General Commissioner of Agriculture

The Capitol The Capitol

Tallahassee, Florida 32399 Tallahassee, Florida 32399

L. Mary Thomas, Esquire Suzanne Hutton, Esquire

Governor's Legal Office County Attorney

Room 209, The Capitol Monroe County

Tallahassee, Florida 32399-0001 111 1 li h Street

Suite 408

Key West, Florida 33040

William Buzzett, Secretary Leo F. Winterling

Deborah Kearney, General Counsel 926 Gerst Road

Richard Shine, Assistant General Counsel Perry Hall, MD 21128

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

B. Jack Osterholt David Dehaas

Executive Director Dehaas Consulting and Design

South Florida Regional Planning Council 88975 Overseas Highway

3440 Hollywood Boulevard Tavernier, Florida 33070

Suite 140

Hollywood, Florida 33021

Florida Administrative Law Reports Franklin D. Greenman, Esquire

Post Office Box 385 Greenman & Manz

Gainesville, Florida 32602 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

ORIGINAL

STATE OF FLORIDA

LAND AND WATER ADJUDICATORY COMMISSION

DEPARTMENT OF COMMUNITY

AFFAIRS,

Petitioner,

vs. CASE NO. lO-0547DRI

MONROE COUNTY, LEO F.

WINTERLING, AND JAMES A.

WINTERLING,

Respondents, :\
AUG

------------------ /

I

FL LAND & W/;­

CO',

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, Department filed a Petition for Appeal of a

Development Order at FL WAC pursuant to Section 380.07, Florida Statutes. On January

15,2010, FL WAC 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

FL WAC 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.

I RicI1ar . Shine

Assistant General Counsel

Shaw P. Stiller

General Counsel

Department of Community Affairs

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399-2100

[phone]

CERTIFICATE OF SERVICE

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:

By U.S. Mail:

Franklin D. Greenman, Esq. Honorable Heather Carruthers

Greenman and Manz Mayor Monroe County

5800 Overseas Highway, Gulfside 2798 Overseas Highway,

Village,Suite 40 Suite 400

Marathon, FL 33050 Marathon, FL 33050

Randolph D. Wall Chairman Suzanne Hutton

Planning Commission Monroe County Attorney

Monroe County 1111 1i h Street

2798 Overseas Highway Suite 408

Suite 410 Key West, FL 33040

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 Honorable Pam Bondi

Governor Chief Financial Officer

The Capitol The Capitol

Tallahassee, FL 32399-0001 Tallahassee, FL 32399-0001

Honorable Pam Bondi Honorable Adam Putnam

Attorney General Commissioner of Agriculture

The Capitol The Capitol

Tallahassee, FL 32399-0001 Tallahassee, FL 32399-0810

Honorable lett 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. IO-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 specificclaims 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, wnich includes provisions

related to Areas of Critical Concern; and

WHEREAS, MONROE COUNTY (COWlty) 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 COWlty Planning Department's mailing address is 2789 Overseas Highway,

Suite 410, Marathon, Florida 33050; and

WHEREAS, Leo F. Winterling, Jfuues A. Winterling, George C. Winterling, Paul J.

Winterling, and Mark 1. 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

(RY) 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 1), 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 (1) 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 (FL UM) 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 Pennit 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 anarea of critical state concern except in confonnity 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 10, 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 theDivision 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 Pennit (Conditional Use), to the

new terms and conditions set forth herein, which tenns 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 tenns 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 aboveare incorporated herein and

are essential elements hereof.

2. Major Conditional 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

a. 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.

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

Momoe COlUlt'j 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 unitin the following receiving areas - Big Pine Key subarea (not including No

Name Key), the City of Marathon, and the Village ofIslamorada. 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 ofIslamorada shall

additioDaIly 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 q,rrtle

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.

c. 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 shall 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 andany future amendments shall be

binding on the land in perpetuity and shall be recorded in the Monroe County public

records.

d. Monroe County shall recognize and document 10 transient campground spaces as

Transfer ofROGO Exemptions available toJhe 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 ofROGO Exemptions.

3. Amendment of the Major 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

pennit 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:reemen t. The parties further agree that this Settlement Agreement

contains the entire and exclusive agreement

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 ofa 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 underChapter 380, Florida Statutes. It is not intended to influence or detennine 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 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 releasesthe 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.

10. Date of Execution. The date of execution of this Agreement shall be the date that

the last party signs and acknowledges this Agreement.

II. 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:

fllihrttL

Witness as to Winterling

STATE OF FL« JIULJ:A Nbn,\\'Um

COUNTY OF MffiJll9E\\NO'i tdC Y

The foregoing instrument was' acknowledged, before me this Zn::i day of

\)-102(\)-132(\\ 1 Df 2011. by LEO F. WlNTERLING who is personally known to me or who

has produced 1x:'Ct\\\\kly f \\')Y \\ f (5 )\\ Q C ox as identification.

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Print Name of Notary Public

My Commission Expires: C1 \\Z.. q \\zo \\ L

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

JAMES A. WINTERLlNG

STA IE OF FLORIDA

COUNTY OF MONROE

ror:.go/ng u-me.twas acImowled&ed beforemc this 1s1' day 0. f

2011, by JAMES A. WlNTERLlNQ who is-personalJy known to me or who

has produced '7lI1:> J,.., identification.

FRCl1 : FAX t-O. Jun. 131 2011 1B:3a1M P5

wrrNESSES: GEORGE C. WlNTERLlNG

_1 D. _

C. Wmterlinl

STATEOF£

COUNTY OF <:::. monroe,}="" t::'="" ry-="">

The foregoing iDsIrument was acknowledged before me this -'- day of

2011, by GEORGE C. WlNTERLING who is petSOI1aUy known to me or

who has produced

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LOLA 0 McDERIIOIT

NOTARY PUBLIC

11

2011-06-0112:14 WINTER LING lEO

Page 5

WITNESSES: PAULl. WINTERUNG

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Print Name

STATE OF FLORIDA

COUNTY OF MONROE

The foregoing instrument was acknowledged before me this fday of

2011, by PAUL J. WINTERLING who is personally known to me or who

Notary JONATHAN Public-Maryland R. WILLIAMS

My Anne Commission Arundel Coun.ty Expires

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WITNESSES:

Witness as to WinterliIpg I

tiw HtUtk .

'Print Name J

STATE OF FL8ImM Mo Y\\l kim

COUN1Y OF MQNR:gE WOVCC"J"(Y

. The foregoing instrwnentwas acknowledged before me this Z rDwiy of

JU'Of 2011, by MARK J. WINTERLING who is personally known to me or who

. has produced 00 d V \\ \\Ie G l\\ c os-e , as identification.

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Print Name of Notary Public

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MONROE COUNTY

STA 1E OF FLORIDA

COUNTY OF MONROE

The foregoing instrument was acknowledged before me this of

Ca-".jA,flu . .,.:;

2011, by H f!.o.th.,..,. who is personally known to me or who

prodaGed as identIfication.

PAMElA G. HN«XlCK

MY COlMSSION I DO 739412

IondIlIllifu EXPIRES: NalIIy FebnJaJy NIIc lhInltIn 7, 2012

Print Name of Notary Public

My Commission Expires:

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DEPARTMENT OF COMMUNITY AFFAIRS

Division of Community Planning

STATE OF FLORIDA

COUN1Y OF LEON .' 'f!--

instrument was acknowledged before me this 1 day of

. _- -.:2011. by J. Thomas Beck or who has

produced as identification.

Print Name of Notary Public

My Commission Expires:

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