Manatee County Government Administrative Center Commission Chambers, First Floor 9:00 a.m. - June 20, 2017
June 20, 2017 - Regular Meeting
Agenda Item #52

Proposed Settlement Agreement - Lake Lincoln, LLC v. Manatee County, Case No.: 2012-CA-3483


Contact and/or Presenter Information
William E. Clague, Assistant County Attorney, ext. 3750
Christopher M. De Carlo, Assistant County Attorney, ext. 3750

Action Requested
I move to approve the Settlement Agreement recommended by the County Attorney's Office and to authorize execution of same.

Enabling/Regulating Authority
Section 125.01, Florida Statutes.
Section 70.001 (the Bert J. Harris, Jr., Private Property Rights Protection Act)

Background Discussion
•    This proposed Settlement Agreement relates to a lawsuit filed in 2012.  On May 23, 2012, Lake Lincoln filed a complaint in the Circuit Court for the Twelfth Judicial Circuit in and for Manatee County, Florida (Case No. 2012-CA-3483) alleging (1) a taking of Lake Lincoln’s property in violation of the Florida constitution and (2) a violation of the Bert J. Harris, Jr., Private Property Rights Protection Act, Section 70.001, Florida Statutes (the “Bert Harris Act”).

•    The allegations in Lake Lincoln’s complaint relate to the denial of its request to assign development entitlements to a 3.32 acre piece of a 10.32 acre parcel located within the Tara Development of Regional Impact (the “Tara DRI”) at the corner of SR 70 and Tara Blvd., pursuant to a requested amendment to the Tara DRI development order and a requested amendment to the zoning ordinance and site plan for the Tara DRI.

•    The County Attorney's Office recommends approval of the proposed settlement agreement because it will:

a.    Avoid downside financial risk of a potentially large monetary judgment against the County which could also require the County to take title to the subject property pursuant to Plaintiff’s taking claim;
b.    Avoid further litigation expense and the uncertainty of the lengthy, ongoing litigation;
c.    Permit review and approval of the Settlement Agreement by the Circuit Court to ensure that the relief granted both protects the public interest served by the Bert Harris Act and is the appropriate relief necessary to prevent the County’s regulatory effort from inordinately burdening the subject real property.
d.    Avoid payment of monetary damages related to Plaintiff’s taking and/or Bert Harris claim, except the claim for reasonable attorney’s and consultant fees, which will be paid by the County per the terms of the Settlement Agreement; and
e.    Development of the subject property will have to comply with the County's current standards and practices.

•    The CAO and Plaintiff’s counsel have negotiated a proposed Settlement Agreement, which provides for the following:

1. DEVELOPMENT ORDER:  The County will allow planned development commercial uses on the 3.32 acres of property and transfer of commercial entitlements from within the DRI onto the 3.32 acres which is located at the southwest corner of SR 70 and Tara Blvd. within the boundaries of the Tara DRI #11, subject to design, landscaping and buffering requirements to provide an aesthetic appearance, and to ensure compatibility, similar to the existing use on the southeast corner of Tara Boulevard and SR 70.

2. APPROVAL BY THE COURT:  The parties will jointly file an action with the Circuit Court requesting approval of this Settlement Agreement, with corresponding development order and zoning ordinance, granting the development approvals set forth in the Settlement Agreement, to ensure that the relief granted protects the public interest served by the above-referenced statutes and is the appropriate relief necessary to prevent the governmental regulatory effort from inordinately burdening the real property. 

3.  ATTORNEY’S FEES AND COSTS:  Manatee County shall pay to Lake Lincoln, LLC all of Plaintiff’s reasonably incurred attorney’s fees and costs, and reasonably incurred consultant fees and costs, to be determined by one of the following methods: court order following hearing, non-binding arbitration, or negotiated settlement between the parties.

4.  ABATEMENT OF ACTION: All litigation shall be abated while the parties work to effectuate the necessary actions related to the settlement agreement.

5.  DISMISSAL AND RELEASE: Provided that the Circuit Court approves this Settlement Agreement and the County grants the Development Approvals pursuant to any proceedings ordered by the Circuit Court, the County and Lake Lincoln shall file a Joint Stipulation for Dismissal with Prejudice of the pending case within fifteen (15) days following the expiration of the time period for any party to appeal the Settlement, and will mutually release each other from further liability related to this claim or case.

•    The Settlement Agreement requires 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 Florida Statute 286.0114.

•    The CAO is ethically obligated to present this Settlement Agreement to the Board for its consideration.  If approved by the Board and the Circuit Court, this settlement would not be an admission of liability on the part of the County.  However, in an abundance of caution, the CAO encourages the Board not to engage in a discussion of the merits (pros/cons) of the case in the context of a public Board meeting because the case is still in litigation.  If approved by the Board and the Circuit Court, the settlement would eliminate the inherent risk, costs and uncertainty associated with trial of the case.  The County has seen a large increase in the number and variety of property rights cases in litigation since the Board’s 2010 decision on Plaintiff’s development application.  The proposed settlement agreement allows the Board to follow its current policies and practices as development moves forward on the property while avoiding the downside financial risk of trial of this matter.
•    Accordingly, the CAO recommends that the Board approve the Settlement Agreement.

County Attorney Review
Other (Requires explanation in field below)

Explanation of Other
This is a County Attorney item.

Reviewing Attorney

Instructions to Board Records
Provide the CAO with an executed original Settlement Agreement for its file and for delivery to Plaintiffs’ counsel.

E-mail an approved copy of this agenda item to:

Christopher M. De Carlo, Assistant County Attorney

William E. Clague, Assistant County Attorney

Tracy Hanrahan, County Attorney’s Office,

Cost and Funds Source Account Number and Name
At such time as the court awards reasonable attorney's fees and costs to the Plaintiff, the County Attorney's Office will consult with Financial Mangement to determine an appropriate funding source.

Amount and Frequency of Recurring Costs

Attachment:  Lake Lincoln Settlement Proposal-6-15-17-For Agenda.pdf