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Compliance Agreement {l r t;: ST ATE OF FLORIDA DIVISION OF ADMINISTRATNE HEARINGS EAST COASTLINE DEVELOPMENT, LTD., Petitioner, Case No. 02-3283GM vs. CITY OF MIAMI BEACH AND DEPARTMENT OF COMMUNITY AFFAIRS, Respondents. COMPLIANCE AGREEMENT For purposes of settling the above-referenced case, Petitioner East Coastline Development, LTD., and Respondents the City of Miami Beach ("City") and the Department of Community Affairs ("Department") hereby stipulate and agree as follows: RECITALS WHEREAS, Petitioner has challenged the Department's determination that the comprehensive plan amendment adopted by the City on May 29, 2002, by Ordinance No. 2002- 3370 , is "in compliance" with Chapter 163, Part II, Florida Statutes, and Rule 9J-5, Florida Administrative Code; and WHEREAS, the Department is the state land planning agency and has the authority to administer and enforce the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, Part II, Florida Statutes; and WHEREAS, the City is a local government with the duty to adopt comprehensive plan amendments that are "in compliance;" and WHEREAS, the Department, which published its Notice of Intent in the Miami Herald on July 19, 2002, contends that the amendment is "in compliance"; and the Petitioner contends that the amendment is not "in compliance," as stated in its' Petition; and WHEREAS, pursuant to Section 163.3184(9), Florida Statutes, Petitioner initiated the above-styled formal administrative proceeding challenging the amendments; and WHEREAS, the City and the Department dispute the allegations of the Petition regarding the amendment; and WHEREAS, the parties wish to avoid the expense, delay, and uncertainty of lengthy litigation and to resolve this proceeding under the terms set forth herein, and agree it is in their respective mutual best interests to do so; NOW, THEREFORE, in consideration of the mutual covenants and promises herein set forth below, and in consideration of the benefits to accrue to each of the parties, the receipt and sufficiency of which are hereby acknowledged, the parties hereby represent and agree as follows: GENERAL PROVISIONS 1. Definitions. As used in this agreement, the following words and phrases shall have the following meanings: a. Act: The Local Government Comprehensive Planning and Land Development Regulation Act, as codified in Part II, Chapter 163, Florida Statutes. b. In compliance or into compliance: The meanmg set forth m Section 163.3184(1 )(b), Florida Statutes. c. Remedial Plan Amendment: An amendment to the plan or support document, the need for which is identified in this agreement, including its exhibits. Remedial 2 plan amendments adopted pursuant to this agreement must be consistent with and substantially similar in concept and content to the ones identified in this agreement or be otherwise acceptable to the Department and the Petitioner. 2. Deoartment Powers. The Department is the state land planning agency and has the power and duty to administer and enforce the Act and to determine whether the plan amendments are "in compliance." 3. Negotiation of Agreement. The Department issued its Notice of Intent to find the plan amendment "in compliance." Petitioner requested an administrative hearing to determine the consistency of the plan amendment. The parties conferred and agreed to resolve the issues in the Petition through this agreement. It is the intent of this agreement to resolve fully all issues between the parties in this proceeding. 4. Dismissal. Within 21 days of the state land planning agency's publication of its notice of intent to find the remedial plan amendments in compliance, and assuming that no petition is filed during that time challenging the remedial plan amendments, the Petitioner shall withdraw its' Petition by filing with DOAH a Notice of Voluntary Dismissal. 5. Adoption or Approval of Remedial Plan Amendments. No later than 60 days after execution of this agreement by the parties, the City shall consider for adoption the remedial plan amendments described in Exhibit A. Within 10 working days after adoption of the remedial plan amendments, the City shall transmit 3 copies of the amendments to the Department as provided in Rule 9J-11.011(5), Florida Administrative Code. The City also shall submit one copy to the South Florida Regional Planning Council and to any other unit of local or state government that has filed a written request with the governing body for a copy of the remedial plan amendments and a copy to the Petitioner. 3 6. Department's Review of Remedial Plan Amendments and Notice of Intent. Within 30 days after receipt of the adopted remedial plan amendments, the Department shall issue a Notice of Intent pursuant to Section 163.3184, Florida Statutes, for the adopted remedial plan amendments in accordance with this Agreement. If the adopted remedial plan amendments satisfy this agreement, the Department shall issue a Notice of Intent addressing the remedial plan amendments as being in compliance. This agreement constitutes a stipulation that if the remedial plan amendments are accomplished, the plan amendments will be in compliance. 7. Effect of Amendment. Adoption of any remedial plan amendments shall not be counted toward the frequency restrictions imposed upon plan amendments pursuant to Section 163.3187(1), Florida Statutes. 8. Purpose of this Agreement; Not Establishing Precedent. The Parties enter into this agreement in a spirit of cooperation for the purpose of avoiding costly, lengthy and unnecessary litigation and in recognition of the desire for the speedy and reasonable resolution of disputes arising out of or related to the City's Comprehensive Plan Amendments. The acceptance of proposals for purposes of this agreement is part of a negotiated agreement affecting many factual and legal issues and is not an endorsement of, and does not establish precedent for, the use of these proposals in any other circumstances or by any other local government. 9. Approval bv City Council. This agreement has been approved by the Miami Beach City Commission at a public hearing advertised at least 10 days prior to the hearing in a newspaper of general circulation in the manner prescribed for advertisements in Section 163.3184(15)(c), Florida Statutes. This agreement has been executed by the City Manager of Miami Beach as provided in the City's charter or other regulations. 4 10. Changes in Law. Nothing in this agreement shall be construed to relieve any party from adhering to the law, and in the event of a change in any statute or administrative regulation inconsistent with this agreement, the statute or regulation shall take precedence and shall be deemed incorporated in this agreement by reference. 11. Other Persons Unaffected. Nothing in this Agreement shall be deemed to affect the rights of any person not a party to this Agreement. This Agreement is not intended to benefit any third party. 12. Attornev Fees and Costs. Each party shall bear its own costs, including attorney fees, incurred in connection with the above-captioned case and this agreement. 13. Effective Date. This agreement shall become effective immediately upon execution by the Petitioner, the Department and the City. 14. Filing and Continuance. This agreement shall be filed with DOAH by the Department after execution by the parties. Upon the filing of this agreement, the stay that has been ordered in this matter shall remain in effect until the Petitioner files its Notice of Voluntary Dismissal as outlined in Paragraph 4 of this agreement. In the event that a petition is filed challenging the remedial amendments, then this proceeding shall be held in further abeyance pending the final determination and outcome of the challenge to the remedial amendments. This proceeding shall, thereafter, be dismissed, upon final administrative or judicial determination as to the validity of the remedial amendments. 15. Retention of Right to Final Hearing. Both parties hereby retain the right to have a final hearing in this proceeding in the event of a breach of this Agreement, and nothing in this Agreement shall be deemed a waiver of such right. Any party to this Agreement may move to 5 have this matter set for hearing if it becomes apparent that any other party whose action is required by this Agreement is not proceeding in good faith to take that action. 16. Governmental Discretion Unaffected. This Agreement is not intended to bind the Local Government in the exercise of governmental discretion which is exercisable in accordance with law only upon the giving of appropriate public notice and required public hearings. 17. Multiple Originals. This Agreement may be executed in any number of originals, all of which evidence one agreement, and only one of which need be produced for any purpose. 18. Captions. The captions inserted in this Agreement are for the purpose of convenience only and shall not be utilized to construe or interpret any provision of this Agreement. 19. Construction of Agreement. All parties to this Agreement are deemed to have participated in its drafting. In the event of any ambiguity in the terms of this Agreement, the parties agree that such ambiguity shall be construed without regard to which of the parties drafted the provision in question. 20, Entire Agreement. This is the entire agreement between the parties and no verbal or written assurance or promise is effective or binding unless included in this document. In witness whereof, the parties hereto have caused this agreement to be executed by their undersigned officials as duly authorized. , By: ~ustur)O~4 6 DEPARTMENT OF COMMUNITY AFFAIRS By: Name: Date AVID DERMER MAYOR ~/l//Ot/ I I DATE: ATTEST: {fO~6 rC0t~ ROBERT P AACH7,' CITY CLERK DATE: f / V I)'t/ I (SEAL) APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION BY: CIT A TORNEY ?If DATE: fj ""V~dtl T:\AGENDA \2004VuI2804\Regular\Portofino Compliance agreement 07282004.rev.DOC 7 WHEREAS, on May 29, 2002, the City Commission of the City of Miami BlYlich adopted Ordinance No. 2002-3370, which amended the text of the City of Miami Beach Comprehensive Plan by adding a description of acceptable uses and densities and intensities of use, among other things, for certain property within the City that is designated "MR" (Marine Recreation) on the Future Land Use Map of the City; and ORDINANCE NO. AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AMENDING ORDINANCE No. 2002-3370, WHICH CLARIFIED THE TEXT OF THE CITY OF MIAMI BEACH COMPREHENSIVE PLAN CONCERNING THE "MR-MARlNE RECREATION" LAND USE DESIGNATION, BY AMENDING PERMITTED USES AND ADDING PROHIBITED USES, AND CLARIFYING THE RELATIONSHIP OF REQUIRED PARKING TO FLOOR AREA WITHIN SUCH DISTRICT; PROVIDING FOR REPEALER, SEVERABILITY AND AN EFFECTIVE DATE. WHEREAS, thereafter, East Coastline Development, Ltd., pursuant to Section 163.3184(9) of Florida Statutes, initiated an administrative challenge to that Ordinance in the case styled East Coastline Development. Ltd. vs. City of Miami Beach and the Florida Deoartment of Communi tv Affairs, Case No. 02-3283GM; and .' WHEREAS, both the City and East Coastline desire, without either admitting or denying any legal positions in the administrative proceeding, to avoid the expense, delay, and uncertainty of lengthy litigation and to resolve this proceeding under the tenus set forth herein, and agree it is in their respective mutual best interests to do so and have agreed on a "Remedial Amendment" to the previously adopted text amendment; and WHEREAS, pursuant to Section 163.3184(16), Florida Statutes, a proposed Compliance Agreement has been approved by the Miami Beach City Commission at a public hearing advertised at least 10 days prior to the hearing in a newspaper of general circulation in the manner prescribed for such advertisements in Section l63.3l84(lS)(c), Florida Statutes. NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1. Ordinance No. 2002-3370 of the City of Miami Beach is hereby amended by amending the text of the adopted City of Miami Beach Comprehensive Plan, Land Use Element, as follows: Marine Recreation (MR) purpose: To provide development opportunities for existing and new recreational boating activities. recreational facilities. accessorv uses and service facilities. Exhibit "A" Intensity Limits: Intensity may be limited by such setback, height, floor area ratio, and/or other restrictions as the City Commission acting in a legislative capacity detennines can effectuate the purpose of this land use category and otherwise implement complimentary public policy. However, in no case shall the intensity exceed a floor area ratio of 0.25. except that required arkin for ad' acent ro erties not se arated b road or aile shall not be included in ennitted floor area. SECTION 3. REPEALER. All Ordinances or parts of Ordinances in conflict herewith be and the same are hereby repealed. SECTION 4. SEVERABILITY. If any section, subsection, clause or provision of this Ordinance is held invalid, the remainder shall not be affected by such invalidity. SECTION 5. EFFECTIVE DATE. Within 30 days after receipt of this ordinance pursuant to the transmittal set forth below, the Department of Community Affairs shall detennine whether this ordinance was adopted in accordance with the Compliance Agreement adopted this same date by the City Commission. If the Department so detennines, it shall issue and publish a Notice of Intent to find the ordinance in compliance, after which East Coastline Development, Ltd., has 21 days within which to file a voluntary dismissal in litigation pending against the City before the Department of Administrative Hearings, styled East Coastline Development. Ltd.. v. City of Miami Beach, Case no. 02-3283GM, This ordinance shall take effect one day following the filing of the notice of voluntary dismissal, or the resolution of any timely filed legal challenges to this ordinance. SECTION 6. TRANSMITTAL. The City Clerk within 10 days of adoption of this ordinance shall transmit 3 copies to the Department of Community Affairs, and one copy each to the South Florida Regional Planning Council, any other unit of local or state government that has filed a written request for a copy of the ordinance, and a copy to East Coastline Development, Ltd. PASSED and ADOPTED this _ day of ,2004. ATTEST: MAYOR CITY CLERK APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION VERIFIED CITY ATTORNEY DATE PLANNING DIRECTOR DATE T:\AGENDA\2004\JuI2804\Regular\1669 - MR comp plan text ord rev 7-12-04.DOC 2