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Agenda 04/14/2015 Item #10B 4/14/2015 10.B. BrockMaryJo /'\From: Georgia[georgiahiller©comcast.net] Sent: Wednesday,April 08,2015 9:38 AM To: OchsLeo; KlatzkowJeff; rgrant©gfpac.com Cc: HillerGeorgia; CasalanguidaNick Subject: Reconsideration This is a request for reconsideration of the Lodge Abbott settlement agreement amendment item heard on March 24, 2015, listed as 12A on that BCC agenda. With thanks, Commissioner Georgia Hiller • 1 Packet Page-122- 4/14/2015 10.B. �-. COLLIER COUNTY Board of County Commissioners Item Number: 10.10.B. Item Summary: Request for reconsideration by Commissioner Hiller of Item 12A from the March 24, 2015 BCC Meeting titled: Recommendation that the Board of County Commissioners consider the amendment to Settlement Agreement and Release proposed by Lodge/Abbott Associates, LLC and Lodge/Abbott Investments Associates LLC (owners of the Cocohatchee Bay Planned Unit Development)to allow the Cocohatchee Planned Unit Development to be amended. Meeting Date: 4/14/2015 Prepared By Name: BrockMaryJo Title: Executive Secretary to County Manager, County Managers Office 4/8/2015 12:34:36 PM Submitted by Title: Executive Secretary to County Manager, County Managers Office Name: BrockMaryJo 4/8/2015 12:34:37 PM Approved By Name: OchsLeo Title: County Manager, County Managers Office Date: 4/8/2015 4:51:38 PM Packet Page -123- 4/14/2015 10.B. Item 12A March 24,2015 EXECUTIVE SUMMARY Recommendation that the Board of County Commissioners consider the amendment to Settlement Agreement and Release proposed by Lodge/Abbott Associates, LLC and Lodge/Abbott Investments Associates LLC (owners of the Cocohatchee Bay Planned Unit Development) to allow the Cocohatchee Planned Unit Development to be amended. OBJECTIVE: That the Board of County Commissioners consider the amendment to Settlement Agreement and Release proposed by Lodge/Abbott Associates, LLC and Lodge/Abbott Investments Associates LLC (owners of the Cocohatchee Bay Planned Unit Development), hereinafter referred to as"Lodge Abbott",to allow the Cocohatchee Planned Unit Development to be amended. This item should be considered a companion item to Lodge Abbott's application for an amendment to the existing PUD zoned project known as Cocohatchee Bay Residential Planned Unit Development (RPUD), as various issues are intertwined between both items. CONSIDERATIONS: The following sets forth a brief background to this matter: PUD History The Cocohatchee Bay PUD was created by Ordinance 2000-88 on December 12, 2000. Prior to this rezoning, 1,758 homes could have been built on this land. The PUD reduced that to a maximum of 590 units with 480 residential units in the RI District (which contemplated residential towers up to 20-stories), 90 one-acre lot residential homes in the R2 District, and authorized a golf course with up to 20 units and a clubhouse. The PUD document included a Bald Eagle Management Plan. The applicant for this PUD was a contract purchaser, Vanderbilt Partners II, Ltd., whose purchase obligation was contingent on approval of the PUD, and whose rights were then purchased by Lodge Abbott. Lodge Abbott waited 5 years after approval of the PUD before progressing towards active development. The Bald Eagle Management Plan At the time of the PUD approval, a pair of bald eagles nested in a dead slash pine tree located in the westerly portion of the property. Accordingly, the PUD was required by the LDC and GMP to contain a Bald Eagle Management Plan. The Plan called for a no construction zone within 750 feet from the nest and a no construction zone within 750-1500 feet around the nest during nesting season. The Plan noted that due to the deteriorating tree, continued nesting would be expected to last for a couple of years at most; nesting continued longer than expected. Lodge Abbott took the position that under the Bald Eagle Management Plan the County deferred to State and Federal Permitting, and that it worked with the State and Federal agencies to secure a permit to allow construction within the vicinity of the nest. The permit included an incidental take provision, with a mitigation plan which included construction of an artificial tree nearby to the existing nest. It was hoped that the eagles would relocate their nest to the artificial tree. Since then,the eagles have relocated to a new nest on the property. 1 Packet Page-124- 4/14/2015 10.B. Item 12A March 24,2015 The PUD Amendment Application After receiving State and Federal approval, Lodge Abbott submitted a site development plan, and was advised by staff that a PUD amendment to modify the Bald Eagle Management Plan was first required. On September 21, 2004, the BCC voted that the PUD amendment was limited solely to the Bald Eagle Management Plan, and the review process commenced. The amendment proposed by Lodge Abbott included additional mitigation but would have authorized development. The staff report recommended approval. The Collier County EAC reviewed the PUD Amendment on February 2, 2005 and recommended denial by a vote of 5-2. The Planning Commission reviewed the application on March 17, 2005, and recommended denial by a vote of 7-1. The BCC heard the Plan Amendment on May 10, 2005 and disapproved by a vote of 4-1. Litigation Lodge Abbott commenced litigation in June of 2005 with essentially an appeal of the Board's disapproval action. On. May 1, 2006, Lodge Abbott served a Bert Harris Act Notice of Claim on the County based on the denial, claiming damages of approximately $300 million. Simply put, a Bert Harris Notice of Claim is required as a pre-condition to filing a Bert Harris lawsuit, and gives the government an opportunity to make an offer(including zoning changes)to satisfy the property owner. At its December 12, 2006 meeting, the Board authorized making a written settlement offer to Lodge Abbott. The path to final settlement included numerous hearings before the Planning Commission, and is summarized in the accompanying Chronology. The Settlement Agreement At its April 22, 2008 meeting the Board approved a Settlement Agreement, which was recorded by the Clerk on June 10th. With the economic downturn, no meaningful development was undertaken. *********** Lodge Abbott is requesting the following amendments to the Settlement Agreement and Release: 1. Revising the Cocohatchee Bay PUD, including a revised Bald Eagle Management Plan; 2. Removing the requirement to pay $3 million to County for affordable housing; 3. Removing the requirement to record restrictive covenants limiting the use of the Golf Course parcel to 2 residential units and to the uses in the PUD for golf course development, and remove the requirement that if golf course development area or golf course use is discontinued or abandoned, the golf course parcel shall be forever green open space; 4. Removing the maximum number of dwelling units of 590 units, and 5. Removing the requirement to merge R-1 and R-2 into a single R parcel. 2 Packet Page-125- 'ten, 4/14/2015 10.B. March 24,2015 LEGAL CONSIDERATIONS: The 2008 Settlement Agreement specifically contemplated that it could be amended by the parties. Whether the Board wishes to reopen the Settlement Agreement is a policy decision. The proposed amended agreement is approved as to form and legality. Typically an agreement would require majority vote for approval, however, as the issues in the proposed amendment are intertwined with the rezoning request, unless the changes are limited in scope (such as the request to eliminate the affordable housing provision),this item effectively requires four votes. -JAK FISCAL IMPACT: None. GROWTH MANAGEMENT IMPACT: None. RECOMMENDATION: That the Board of County Commissioners consider the proposed Amendment to Settlement Agreement and Release proposed by Lodge Abbott. If approved, the Chairman should be authorized to execute the Amendment to Settlement Agreement and Release. Prepared by: Jeffrey A. Klatzkow, County Attorney Attachments: 1. Chronology (with hyperlink to Public Hearing Transcripts) 2. May 1, 2006 Notice of Claim 3. January 4,2007 County written settlement offer 4. Settlement Agreement 5. Proposed Amendment to Settlement Agreement, including revised Bald Eagle Management Plan 3 Packet Page-126- •