www.mymanatee.org
Manatee County Government Administrative Building 1st Floor - Patricia M. Glass Chambers March 7, 2019 - 9:00 am
REVISED March 7, 2019 Land Use Meeting
Agenda Item #7


Subject
Proposed Amended and Restated Settlement Agreement - Lake Lincoln, LLC v. Manatee County, Case No.: 2012-CA-3483 & Case No. 2017-CA-3071

Briefings
All

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


Action Requested
I move to approve the Amended and Restated 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 Amended and Restated 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 Boulevard, 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.
•    On June 20, 2017, the Board approved a proposed Settlement Agreement to be submitted to the Court pursuant to the Bert Harris Act.  The County Attorney’s Office recommended 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.

•    On July 12, 2017, the Parties jointly petitioned the Circuit Court to approve the Settlement Agreement pursuant to Joint Petition, Case No. 2017-CA-3071.  Three neighborhood associations. the Tara Golf and Country Club, Inc., Tara Master Association, Inc., and Fairway Gardens II at Tara Condominium Association, Inc. (the “Intervenors”) moved to intervene in the case and were granted permission to do so by the Court.

•    After lengthy argument by the Parties and the Intervenors, on August 21, 2018, the Court entered an Order on (“Order”), remanding the Settlement Agreement back to the Board for the purpose of (a) conducting such further proceedings as the Board deems appropriate to address the issue of “consistency with the Tara DRI Development Order and the Manatee County Comprehensive Plan” and (b) to make any necessary revisions to the Settlement Agreement so as to incorporate the recent amendments to the Tara DRI development orders for a hotel on a sub-parcel within the Tara DRI.

•   Accordingly, the CAO is recommending approval of an Amended and Restated Settlement Agreement that restates the prior Settlement Agreement with changes to address the issues identified by the Court in the Order. The proposed Amended and Restated Settlement Agreement 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 Boulevard 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.  The Amended and Restated Settlement Agreement includes (a) revised development orders that incorporate the recent changes for the approval of a hotel in the Tara DRI, and (b) a finding that the uses approved in the development orders are consistent with the County’s Comprehensive Plan.  [The revised development orders also include conditions that were negotiated between the Parties and the Intervenors to resolve the legal objections the Intervenors filed with the Court.]

2. APPROVAL BY THE COURT:  The parties will submit the Amended and Restated Settlement Agreement in the action previously filed 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 continue to 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 Amended and Restated 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.  Nevertheless, in order to address objections raised by Intervenors in the Court proceeding, the CAO recommends that the Board consider the approval of the Amended and Restated Settlement Agreement in a quasi-judicial public hearing subject to the same procedures used in the approval of development applications.

•    The CAO is ethically obligated to present this Amended and Restated 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 Amended and Restated 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.

•    A copy of the staff analysis submitted to the Court to support the petition is attached. 
   
•    Accordingly, the CAO recommends that the Board approve the Amended and Restated Settlement Agreement.

•    On February 24, 2019, the Intervenors submitted an alternative settlement proposal to the CAO through their legal counsel.  The alternative settlement proposal provides for development of only residential or residential support uses on the subject property, and places limitations on traffic impacts and building height.   A copy of the alternative settlement proposal is included in the Board’s agenda.








County Attorney Review
Other (Requires explanation in field below)

Explanation of Other
This is a County Attorney item.


Reviewing Attorney
Clague

Instructions to Board Records
Provide the CAO with an executed original Amended and Restated 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
christopher.decarlo@mymanatee.org
 
William E. Clague, Chief Assistant County Attorney
william.clague@mymanatee.org

Tracy Hanrahan, County Attorney’s Office,
tracy.hanrahan@mymanatee.org 


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 Management to determine an appropriate funding source.

Amount and Frequency of Recurring Costs
N/A


Attachment:  Amended and Restated Settlement Agreement (final).pdf
Attachment:  Lake Lincold DRI Ordinance (FINAL).pdf
Attachment:  Lake Lincoln Ordinance Tara PDRPDC-96-03(G)(R11) (FINAL).pdf
Attachment:  Lake Lincoln Staff Analysis.pdf
Attachment:  Intervenors' Proposal for Settlement 2-24-2019.pdf
Attachment:  Public comments.pdf
Attachment:  Public Comments 2.pdf
Attachment:  Affidavit of Publishing Sarasota Herald Tribune Display Tara Settlement 3-7-19 BCC.pdf
Attachment:  Public Comments 3 for Update memo.pdf
Attachment:  Public Comments 4 for update memo.pdf