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BOARD OF COUNTY COMMISSIONERS AGENDA ITEM SUMMARY
PLACEMENT: DEPARTMENTAL
PRESET: 1:30 PM
TITLE: CONSIDERATION OF SETTLEMENT AGREEMENT CONCERNING THE CASES OF
AVALON VENTURES, LLC V. MARTIN COUNTY, CASE NOS. 2014-AP-16, 2014-1161-CA, AND
2015-295-CA
AGENDA ITEM DATES:
MEETING DATE:
11/10/2015
COMPLETED DATE:
10/29/2015
COUNTY ATTORNEY:
10/19/2015
ASSISTANT COUNTY ADMINISTRATOR:
10/26/2015
REQUESTED BY:
DEPARTMENT:
PREPARED BY:
Name: Michael D. Durham,
County Attorney
County Attorney
Krista A. Storey, Assistant
County Attorney
Name:
David A. Acton, Special
Counsel
Procedures: None
EXECUTIVE SUMMARY:
A proposed settlement has been reached through mediation that would create a process for resolving
all three pending cases concerning Avalon Ventures' proposed rezoning and development of the
property on the southeast corner of Federal Highway and Seabranch Blvd., through separate
consideration of the rezoning and a final site plan by the Local Planning Agency and the Board of
County Commissioners.
APPROVAL:
CA
CA
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BACKGROUND/RELATED STRATEGIC GOAL:
To be submitted by Supplemental Memo.
ISSUES:
To be submitted by Supplemental Memo.
LEGAL SUFFICIENCY REVIEW:
To be submitted by Supplemental Memo.
RECOMMENDED ACTION:
RECOMMENDATION
To be submitted by Supplemental Memo.
ALTERNATIVE RECOMMENDATIONS
To be submitted by Supplemental Memo.
FISCAL IMPACT:
RECOMMENDATION
To be submitted by Supplemental Memo.
Funding Source
County Funds
Non-County Funds
Authorization
Subtotal
Project Total
ALTERNATIVE RECOMMENDATIONS
To be submitted by Supplemental Memo.
DOCUMENT(S) REQUIRING ACTION:
Budget Transfer / Amendment
Chair Letter
Contract / Agreement
Grant / Application
Ordinance
Resolution
Notice
Other:
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ROUTING:
_ ADM
_ GSD
X CA
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_ BLD
_ ITS
_ ACA
_ CDD
_ LIB
_ LEG
_ COM
_ MCA
_ ENG
_ MPO
_ FRD
_ PRD
_ GMD
_ USD
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AGENDA ITEM:
TO:
VIA:
FROM:
REF:
SUBJECT:
Nov. 10, 2015
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MARTIN COUNTY, FLORIDA
SUPPLEMENTAL MEMORANDUM
Honorable Members of the Board DATE:
of County Commissioners
November 5, 2015
Taryn Kryzda
County Administrator
Krista A. Storey
Senior Assistant County Attorney
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CONSIDERATION OF SETTLEMENT AGREEMENT CONCERNING
THE CASES OF AVALON VENTURES, LLC V. MARTIN COUNTY,
CASE NOS. 2014-AP-16, 2014-1161-CA, AND 2015-295-CA
EXECUTIVE SUMMARY:
A proposed settlement has been reached through mediation that would create a process for
resolving all three pending cases concerning Avalon Ventures' proposed rezoning and
development of the property on the southeast corner of Federal Highway and Seabranch Blvd.,
through separate consideration of the rezoning and a final site plan by the Local Planning
Agency and the Board of County Commissioners
BACKGROUND/RELATED STRATEGIC GOAL:
Avalon Ventures, LLC owns approximately 33.6 acres of vacant land at the southeast corner of
the intersection of South Federal Highway and Seabranch Boulevard in the northern Hobe
Sound area of Martin County. It is attempting to sell the property to another entity, owned by
developer Dominic Vara, for a residential or residential-plus-ALF development.
The Board denied Avalon Ventures’ application for rezoning of the property in July, 2014, and
denied its application for site plan approval in September, 2014, due to the prior denial of
rezoning. Avalon Ventures thereafter filed a notice of claim for relief under the Bert J. Harris,
Jr. Private Property Rights Protection Act (section 70.001, Florida Statutes), claiming the
denial of rezoning caused a substantial loss in property value.
Case No. 2014-16-AP
In October, 2014, Avalon Ventures filed a “petition” requesting judicial review of the denial of
rezoning by a panel of three local circuit court judges. Avalon Ventures claimed that the Board
failed to follow the correct law and rendered a decision that was not supported by competent
substantial evidence. Avalon Ventures’ petition, Martin County’s response in opposition, and
Avalon Ventures’ reply have been filed with the court, which has had the matter under review
since mid-January, 2015. The court may either affirm the Board’s decision or reverse it and
remand the matter for further consideration and action by the Board.
Case No. 2014-1161-CA
Also in October, 2014, Avalon Ventures filed a “complaint” in the local circuit court seeking
relief under section 163.3215(3), Florida Statutes, part of the Community Planning Act. Avalon
Ventures claimed the Board’s denial of rezoning is legally inconsistent with provisions of the
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Martin County Comprehensive Growth Management Plan. If the court rules in favor of Avalon
Ventures, it could declare the denial of rezoning invalid and grant injunctive or other relief
pursuant to the Community Planning Act. Further action on this case was suspended while the
parties engaged in settlement negotiations. However, the County did file its Answer and
Affirmative Defenses in mid-May, 2015, which resulted in the case becoming formally “at
issue” (meaning both parties have filed their pleadings and the case can be scheduled for a
trial).
Case No. 2015-295-CA
In March, 2015, Avalon Ventures filed another “complaint” in the local circuit court, based upon
its Harris Act claim seeking relief for an allegedly substantial loss in property value caused by
the denial of rezoning. Avalon Ventures claimed it suffered a decline of $3,400,000 in the fair
market value of the property. It is seeking monetary relief and/or one of the many other forms
of relief referenced in the Act to restore the property’s value and allow the rezoning and
development of the site. A prevailing party in a Harris Act lawsuit also may seek to recover its
attorney’s fees and litigation costs, which Avalon Ventures also has requested. The County
was formally “served” with the complaint in late March and responded the following month by
moving to dismiss the case on several grounds. The court denied that motion, whereupon the
County filed its Answer and Affirmative Defenses in mid-May, which resulted in the case
becoming formally “at issue,” too.
Developments after cases became “at issue”
The parties continued to engage in informal settlement negotiations, but by mid-June such
negotiations essentially ceased. On July 1st, Avalon Ventures filed motions in Case Nos.
2014-1161-CA and 2015-295-CA asking the court to set each matter for trial.
The County responded (in part) by insisting that the parties engage in formal court-ordered
mediation prior to scheduling any trials, whereupon the parties agreed upon a mediator and
engaged in formal mediation in mid-August, 2015. During that process, Avalon Ventures
produced a further revised site plan that reduced the residential use of the property from the
original 194 two-and-three-story-tall townhomes to 50 zero-lot-line-style two-story-tall single
family detached houses together with the non-residential use of the southern portion of the
property as an ALF (a use that Avalon Ventures first proposed when the parties began informal
settlement negotiations in late 2014).
Mediation continued thereafter through several joint meetings and communications between
the planning and engineering consultants retained by the developer and the staff members of
several County departments, including the County’s attorneys. Through that process, the
proposed site plan produced by Avalon Ventures during the mid-August session with the
mediator was further revised and refined, especially to reduce or eliminate modifications to the
County’s comprehensive plan provisions and land development regulations that would be
needed for approval.
The mediation efforts of the parties have reached the point where a formal settlement
agreement must be executed by both parties in order for the settlement process to continue.
The essential elements of the proposed Settlement Agreement are the following:
1. The County will again consider rezoning the Avalon Ventures property to RM-6 (the
zoning category needed for use by an ALF) and will consider a proposed Final Site Plan for the
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combination of a “residential use” by 50 zero-lot-line houses and a “non-residential use” by an
ALF.
2. The consideration of both will follow the usual process of consideration by the LPA at
a first public hearing and, regardless of their recommendation, consideration by the Board at a
second public hearing.
3. Approval of the proposed Final Site Plan would entail the Board granting certain
specified modifications to the County’s comprehensive plan provisions or land development
regulations, but only as they apply to the Avalon Ventures property.
4. If the Board in its discretion chooses to grant the rezoning to RM-6 and approve the
proposed Final Site Plan, then:
a. Avalon Ventures and the County would be obligated to file a motion asking the
judge assigned to the Harris Act case to conduct essentially a “third hearing” and
determine whether the settlement and the modifications granted by the Board in
approving the Final Site Plan “protects the public interest … and is the appropriate relief
necessary,” a step that is required by the Harris Act (section 70.001(4)(d)2), and
b. If the Court approves the settlement and modifications, Avalon Ventures would
be obligated to dismiss all three pending cases with prejudice and both parties would be
prohibited from initiating any other litigation based upon the Board’s prior denials of
rezoning and site plan approval.
5. No payments of any kind would be required from one party to the other (except
applicable development-related fees paid to the County), with each bearing its own attorney’s
fees and litigation costs.
It is important to note that approval of the proposed Settlement Agreement itself does not
obligate the Board to grant the rezoning or approve the proposed final site plan. Of course, if
either is denied, then Avalon Ventures would not be obligated to dismiss the pending lawsuits
and litigation presumably would continue in all three cases.
ISSUES:
The sole issue before the Board on this matter is whether the proposed Settlement Agreement
establishes an acceptable settlement process for the County and Avalon Ventures to follow in
seeking to resolve the rezoning and site planning issues without further litigation. If so, then
the Board can approve the Settlement Agreement (and direct the Chairperson to execute it on
behalf of the County) so that the parties can continue with the settlement process, beginning
with consideration of the rezoning of the property to RM-6.
The proposed Settlement Agreement is consistent with the very broad authority granted to a
city or county governing body to settle any claim made under the Harris Act (case no. 2015295-CA). To enable local governments to avoid potential liability for having to pay a large
amount of money to a property owner, the Act passed by the legislature and signed by the
governor authorizes a local government to try to settle a Harris Act claim even before a lawsuit
is filed by offering to make “[a]n adjustment of land development or permit standards or other
provisions controlling the development or use of land,” to make “[i]ncreases or modifications in
the density, intensity, or use of areas of development,” or to effectuate “[i]ssuance of the
development order, a variance, special exception, or other extraordinary relief.” See sections
70.001(4)(c)1, 2, & 9, Florida Statutes. The Act also contemplates that, in order to settle a
Harris Act claim or case, a local government may want or need to agree to a “modification,
variance, or a special exception to the application of a rule, regulation, or ordinance as it would
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otherwise apply to the subject real property,” and the Act allows that, provided “the relief
granted shall protect the public interest served by the regulations at issue and be the
appropriate relief necessary to prevent the governmental regulatory effort from inordinately
burdening the real property.” See section 70.001(4)(d)1, Florida Statutes.
In this instance, the terms of the proposed Settlement Agreement clearly contemplate that the
Board will have to consider granting some modifications to comprehensive plan provisions and
land development regulations of the County, as enumerated in section 4.B.(2) of the proposed
Settlement Agreement. This is similar to what occurs when negotiating the terms and
provisions of the development order for a planned unit development. However, the
modifications are not granted merely by approving the settlement agreement itself, but only by
the Board subsequently deciding to approve the proposed final site plan.
The proposed Settlement Agreement will be provided to the Board prior to November 10th.
LEGAL SUFFICIENCY REVIEW:
This item has been reviewed for legal sufficiency to determine whether it is consistent with
applicable law, has identified and addressed legal risks, and has developed strategies for legal
defensibility.
RECOMMENDED ACTION:
RECOMMENDATION
Move that the Board approve the proposed Settlement Agreement and authorize the
Chairperson to execute it.
ALTERNATIVE RECOMMENDATIONS
1. Move that the Board table consideration of the proposed Settlement Agreement and
provide direction to the County Attorney concerning renegotiation of specific terms or
conditions through resumed mediation.
2. Move that the Board reject the proposed Settlement Agreement and direct the
County Attorney to proceed with the defense of the County in the pending litigation.
FISCAL IMPACT:
RECOMMENDATION
None directly, but subsequent approval of the proposed rezoning and final site plan for
the property would likely cause dismissal of all pending cases and eliminate the
County’s potential liability for hundreds of thousands of dollars in damages in Case No.
2015-295-CA and eliminate the need for the County to spend approximately $300,000
in total additional attorneys’ fees and litigation expenses for all three pending cases.
ALTERNATIVE RECOMMENDATIONS
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1. None immediately, but if resumed mediation failed to yield an acceptable
Settlement Agreement, then potential liability for hundreds of thousands of dollars in
damages in Case No. 2015-295-CA and approximately $300,000 in total additional
attorneys’ fees and litigation expenses for all three pending cases.
2. Potential liability for hundreds of thousands of dollars in damages in Case No.
2015-295-CA and approximately $300,000 in total additional attorneys’ fees and
litigation expenses for all three pending cases.
DOCUMENTS REQUIRING ACTION:
Other: Settlement Agreement
KAS/mh
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