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Manatee County Government Administrative Center Commission Chambers, First Floor 9:00 a.m. - December 16, 2014
REVISED December 16, 2014 - Regular Meeting
Agenda Item #56


Subject
Response to Long Bar Pointe Bert J. Harris Act Claim

Briefings
All

Contact and/or Presenter Information

William E. Clague, Assistant County Attorney.



Action Requested

I move to approve the written settlement offer and written statement of allowable uses presented by the County Attorney’s Office, and to authorize execution of same by the County Attorney and County Planning Official, respectively.



Enabling/Regulating Authority

Bert J. Harris, Jr. Private Property Rights Protection Act, Section 70.001, Florida Statutes.



Background Discussion

On August 1, 2014, Manatee County received a Notice of Claim (the “Claim”), on behalf of Long Bar Pointe, LLLP (the “Developer”), pursuant to the Bert J. Harris, Jr. Private Property Rights Protection Act, Section 70.001, Florida Statutes (the “Bert Harris Act” or “Act”). 

The Claim relates to the Developer’s proposed text amendment #PA 13-06 (the “Text Amendment”) to the Manatee County Comprehensive Plan (“Comprehensive Plan”). Through the Text Amendment, the Developer sought to create an across-the-board legislative exemption to the Conservation Element and Coastal Element of the Comprehensive Plan.  The Claim alleges that existing policies in these Elements inordinately burden the Developer’s property.  The Claim points to the August 6, 2013, decision of the Board not to transmit the Text Amendment as the alleged governmental action that entitles the Developer to relief under the Act. 

The Bert Harris Act requires that the County respond to the Claim with a “written settlement offer” and a “written statement of allowable uses” no later than 150 days from the date of presentation of the Claim.  That deadline is January 1, 2015.  Until this 150-day period expires, the Developer may not file a lawsuit in circuit court.  The Bert Harris Act provides for judicial review of the written settlement offer and the written statement of allowable uses during any subsequent litigation. 

The CAO has prepared the written settlement offer, and has worked in conjunction with the County’s Planning Official, John Osborne, and the County’s Planning Manager, Joel Christian, to prepare the written statement of allowable uses.  These documents can be summarized as follows:

 A.  Written Settlement Offer:  While the Bert Harris Act allows the County to offer various concessions to settle the Claim, Section 70.001(4)(c)11 of the Act also allows the County to propose: “No changes to the action of the government entity.”  The written settlement offer reflects the County’s decision to choose this option, to stand by the County’s original decision to refuse to transmit the Text Amendment.  It also sets forth the numerous legal reasons that support this decision.  Therefore, though the document is styled as a “written settlement offer” as required by the Act, it does not offer any concession or compromise to the Developer.

 B.  Written Statement of Allowable Uses:  Section 70.001(5)(a) of the Bert Harris Act requires the County to “issue a written statement of allowable uses identifying the allowable uses to which the subject property may be put”.  This requires the County to provide a written explanation of the allowable uses on the property in light of the applicable standards under the Comprehensive Plan and Land Development Code (“Code”).  As required by the Bert Harris Act, the written statement of allowable uses reflects the uses that are, in staff’s view, realistically available for the property in light of the property’s unique characteristics and the applicable standards of the Comprehensive Plan and Code.  It does not constitute a development order for the property, or otherwise result in an approval of development on the property.  Any development described in the written statement of allowable uses would still be subject to the requirements for development approval (including noticed public hearings before the Board) under the Comprehensive Plan and Code.  The allowable uses include residential development, neighborhood serving retail development and water dependent or water-enhanced uses that, in staff’s view, would meet the requirements of the Comprehensive Plan and Code.

Both the written settlement offer and the written statement of allowable uses require approval by the Board.  The Board’s approval need not occur in a noticed public hearing, but is subject to the requirement to allow public comment pursuant to Section 286.0114, Florida Statutes.

Based on an analysis of the merits of the Developer’s claim, the CAO recommends the Board approve the written settlement offer and the written statement of allowable uses, and authorize execution of same by the County Attorney and County Planning Official, respectively.



County Attorney Review
Other (Requires explanation in field below)

Explanation of Other

CAO Item



Reviewing Attorney
Clague

Instructions to Board Records

The County Attorney will provide Board Records with: (1) an original written settlement offer executed by the County Attorney, and (2) a written statement of allowable uses executed by the County Planning Official.



Cost and Funds Source Account Number and Name
N/A

Amount and Frequency of Recurring Costs
N/A


Attachment:  Written Settlement Offer (Agenda).pdf
Attachment:  Written Settlement Offer Exhibits.pdf
Attachment:  Written Statement of Allowable Uses (Agenda).pdf
Attachment:  Written Statement of Allowable Uses Exhibits.pdf