Agenda 12/11/2012 Item #10 W12/11/2012 Item 10.W.
EXECUTIVE SUMMARY
Recommendation that the Board of County Commissioners accept the settlement offer
presented by Petitioners in DOAH Case No. 12 -495; and, that the settlement agreement
related thereto, as presented herein, be executed on December 11, 2012 by the Chair of the
Board of County Commissioners on behalf of Collier County.
OBJECTIVE: That the Board of County Commissioners accept the settlement offer presented
by Petitioners in DOAH Case No. 12 -495 and that the settlement agreement related thereto, as
presented herein, be executed on December 11, 2012 by the Chair of the Board of County
Commissioners on behalf of Collier County.
CONSIDERATIONS: The county sought to construct a new beach structure, including an
elevated viewing deck, concession, and restroom facility at Vanderbilt Beach Road Park,
westward of the Coastal. Construction Control Line, and to that end the county filed a DEP
petition for Variance from requirements that major structures be located a sufficient distance
landward of the beach and frontal dune. DEP granted the county's Petition for Variance.
Petitioners filed a Petition for Formal Administrative Hearing challenging DEP's Final Order
and seeking a reversal of the same for the reasons set forth in the Petition. Petitioners have
proposed the attached settlement as a resolution to the differences between the parties. The
settlement presents a fair and appropriate resolution of this dispute which, upon acceptance by
the Board of County Commissioners on behalf of the county, will allow the county to move
forward with- the construction of a restroom facility at Vanderbilt Beach Road Park in a manner
acceptableto the parties.
FISCAL IMPACT: The proposed settlement should result in significantly reduced
constructions costs of the restroom facility.
RECOMMENDATION: That the Board of County Commissioners accept the settlement offer
presented by Petitioners in DOAH Case No. 12 -495; and, that the settlement agreement related
thereto, as presented herein, be executed on December 11, 2012 by the Chair of the Board of
County Commissioners on behalf of Collier County.
PREPARED BY: Commissioner Georgia Hiller
Attachment: Settlement Agreement/DOAH CASE No.: 12 -495
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12/11/2012 Item 10.W.
COLLIER COUNTY
Board of County Commissioners
Item Number: 10.W.
Item Summary: Recommendation that the Board of'County Commissioners accept the
settlement offer presented by Petitioners in DOAH Case No. 12 -495; and, that the settlement
agreement related thereto, as presented herein, be executed on December 11, 2012 by the
Chair of the Board of County Commissioners on behalf of Collier County. (Commissioner Hiller)
Meeting Date: 12/11/2012
Prepared By
Name: BrockMaryJo
Title: Executive Secretary to County Manager, CMO
12/5/2012 9:37:11 AM
Submitted by
Title: Executive Secretary to County Manager, CMO
Name: BrockMaryJo
12/5/2012 9:37:14 AM
Approved By
Name: KlatzkowJeff
Title: County Attorney
Date: 12/5/2012 9:50:00 AM
Name: OchsLeo
Title: County-Manager
Date: 12/5/2012 12:52:32 PM
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BEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
ROLLIN O. RHEA, ROBERT O. NAEGELE, JR.,
VANDERBILT BEACH RESIDENTS
ASSOCIATION, INC., BEACHWALK RESIDENTS
ASSOCIATION, INC., THE BEACHMOOR
CONDOMINIUM OWNERS ASSOCIATION, INC.,
AND THE MANGROVE ACTION GROUP, INC.,
Petitioners,
VS.
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondent.
12/11/2012 Item 10.W.
DOAH CASE NO.: 12 -495
Re: DEP File #: CO -922 V
SETTLEMENT AGREEMENT
This Settlement Agreement is reached by and between Rollin O. Rhea, Robert O.
Naegele, Jr., Vanderbilt Beach Residents Association, Inc., Beachwalk Residents Association,
Inc., The Beachmoor Condominium Owners Association, Inc., and The Mangrove Action Group,
Inc. ( "Petitioners "), Department of Environmental Protection ( "DEP ") and the Collier County
Board of County Commissioners ( "County ") (collectively "The Parties ") and is effective upon
execution by counsel for each of the Parties.
Recitals
Whereas, on June 24, 2011, pursuant to Florida Statute Section 120.542, the County filed
with the DEP Petitions for Variance from requirements that major structures be located a
sufficient distance landward of the beach and frontal dune, as found in Florida Administrative
Code (F.A.C.) Rule 62B- 33.005(8). The County sought to construct new beach structures,
including an elevated viewing deck, concession and restroom facility at Vanderbilt Beach Road
Park, westward of the Coastal Construction Control Line ( "CCCL "). See DEP File Numbers
CO -922 V and CO -922.
Whereas, on October 31, 2011, the DEP issued a Final Order Granting the County's
Petition for Variance from Rule 62B- 33.005(8), F.A.C. ( "Final Order ").
Whereas, on January 20, 2012, Petitioners filed a Petition for Formal Administrative
Hearing challenging the Final Order and seeking a reversal of the same for reasons set forth in
such Petition.
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12/11/2012 Item 10.W.
Whereas, the Parties have resolved their differences and agree that the terms contained in
this Settlement Agreement constitute a fair and appropriate resolution of their dispute.
Now therefore, it is agreed:
1. The Parties stipulate that the County will, in writing, formally withdraw (by
submitting a Notice of Withdrawal in this case) the Petition for Variance, in the form attached
hereto as Exhibit 1, within 7 days of the execution of this Agreement. The parties agree to the
issuance of an order closing the file to be issued by the Administrative Law Judge in this
proceeding and to the issuance of an order by DEP closing the file in this matter.
2. The County will not now or in the future (a) proceed with the current design, or a
substantially similar design, proposed in DEP File Number CO -992 and 922V, (b) pursue
permits for, nor (c) construct any elevated or pile supported structure within or adjacent to the
Vanderbilt Beach properties which the County owns, including the Beach Park, Parking Garage,
and Vanderbilt Beach Road right of way.
3. The County will amend its current permit application, CO -922, before DEP, to
incorporate the terms of this Settlement Agreement and eliminate any proposed improvements
which are inconsistent with the Settlement Agreement.
4. Petitioners will support any other application by the County to the DEP or other
authorities to allow construction of an additional restroom facility at the Collier County
Vanderbilt Beach Park as long as such application complies with the following:
(a) The restroom facility shall be situated in the FEMA AE
construction zone, located close to the existing restroom, but not in the Vanderbilt
Beach right of way, constructed at -grade without elevation, and shall not exceed
1,000 square feet in area and 20 feet in height. The restroom facility shall be
designed and constructed to be architecturally compatible with the structures in
the surrounding Vanderbilt Beach area.
(b) There shall be minimal alteration of the natural vegetation on the
construction site and any alteration will include landscaping to enhance the
natural appearance of existing site vegetation.
(c) The existing restroom facility may remain with such upgrades as
are allowed by local flood regulations.
(d) There shall be retention and /or relocation of existing picnic
facilities as necessary to accommodate the improvements referred to above.
5. The County will seek site plan and architectural input from the Petitioners before
proceeding with design work and will make its architects /engineers available to consult with
Petitioners and /or Petitioners' architect. The Petitioners shall have the right of approval of the
site plan and architectural design, which approval shall not be unreasonably withheld.
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12/11/2012 Item 10.W.
6. The County will undertake the beach dune restoration and vegetation activities
proposed in the existing permit application DEP File # CO -922 as soon as practicable, not to
exceed 180 days.
7. The new restroom facility construction will be completed within one year of
permitting. A six month extension may be granted by Petitioners.
8. A temporary bathroom may be placed on site during construction only from
October through April until construction is completed.
9. This Settlement Agreement shall be enforceable by action in circuit court, venue
in Collier County. In the event of disagreement as to the application of the terms of this
Agreement, Collier County shall immediately cease the permitting application process, which
shall be stayed while the Parties seek a determination by the circuit court. If the County does not
stay its application process, the circuit court is authorized to issue a temporary injunction,
without the requirement of a bond.
So agreed this day of
Thomas G. Tomasello, Esq.
THOMAS G. TOMASELLO, P.A.
1107 Terrace Street
Tallahassee, FL 32303
Scott Shirley, Esq.
ARD, SHIRLEY & RUDOLPH, P.A.
Post Office Box 1874
Tallahassee, FL 32302 -1874
(Attorneys for Petitioners)
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settlement agreement final
20_
West Gregory, Esq.
Assistant General County
Office of the General Counsel
Department of Environmental Protection
3900 Commonwealth Boulevard, MS #35
Tallahassee, FL 32399 -3000
(Attorney for DEP)
Jeffrey A. Klatzkow, Esq.
Collier County Attorney's Office
3301 East Tamiami Trail
Administration Building — 8th Floor
Naples, FL 34112
(Attorney for County)
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