~-{t>PASCO COUNTY, FLORIDA

INTEROFFICE MEMORANDUM

TO:

FROM:

Honorable Chairman andMembers of the Board ofCounty Commissioners

Q~-_L~A-- .. /~~~S~County Attomey

DATE: 06/14/07 FILE:CA007- 2430

SUBJECT: Metro Development Group, LLCv. Pasco CountyCase #: 51-06-AP-00007WS(BCC 6/19/07; 10:00 a.m.; NPR)

DESCRIPTION AND CONDITIONS:

Please find before you for your consideration a status report regarding a Court Order we recentlyreceived in the litigation filed by Metro Development Group, LLC. (Metro) related to the Board'sSeptember 26,2006 denial of a Planned Unit Development (PUD) rezoning for 78 residential unitseast of Hudson. A copy of the Order is attached hereto. Additionally, please find before you foryour consideration a proposed response by the County Attorney's Office to the companion BertHarris Notice of Claim for damages in the amount of $8,863,350.

ORDER GRANTING PETITION FOR CERTIORARI

On June 5, 2007, a three judge panel of the Circuit Court granted Metro's Petition for Writ ofCertiorari and overturned the Board's denial of the rezoning. The Court ultimately ruled that theBoard's denial of the rezoning "is not supported by substantial competent evidence and ignored theobvious requirements of the law." The Court expressed concern about the Board's unclear motionand vote and whether the Board approved an AR-1 zoning or denied the PUD and recommendedAR-1 zoning. A copy of the portion of the transcript for the motion, discussion and vote is attachedhereto. The written order of the Board on the rezoning that was prepared by the County Attorney'sOffice and signed by the Chairman after the public hearing reflected a denial of the PUD and madeno mention of AR-1 zoning. Thus, the court expressed concern about what it deemed a "substantialdiscrepancy" between the record of the Board's motion and vote, and the written Order of the Board..Accordingly, the Court ruled under both scenarios (Le., approval of a rezoning to AR-1 or a denial ofthe PUD).

The Court ruled that if the Board approved a zoning change to AR-1, then the Board did so withoutgiving the applicant due process of law, since the Board "unilaterally changed its Zoning Mapwithout notice, without hearing, without evidence, and without following the essential requirements oflaw."

However, the Court ruled that if the Board did not unilaterally rezone the subject property to AR-1 ,but instead denied the PUD rezoning request, as stated in the Order of the Board, then the denial ofthe PUD was "not supported by competent substantial evidence and the Board ignored the obviousrequirements of law."

The Order of the Circuit Court is that "the Petition for Writ of Certiorari is GRANTED." The CountyAttorney's Office is concerned that the relief granted in the Order of the Board is not clear. ThePetition for Writ of Certiorari filed by Metro asked for the following relief: "a) that this Court acceptjurisdiction of this case; b) that this Court issue an order to show cause requiring the County to

respondto the Petition and show cause why relief requested should not be granted; c) that thisCourt find Petitioner was entitled to rezoning at the approved Comprehensive Plan density of three(3) units per acre (117 lots) because it met its burden to establish consistency with thecomprehensive plan in compliance with the applicable zoning regulations by substantial competentevidence; d) that this Court find that the County's decision denying the requested rezoning was notsupported by competent substantial evidence and therefore that the essential requirement of the lawhave not been observed; and e) that this Court reverse and vacate the unilateral AR-1 rezoningdecision below, which was ultra vires, and remand this matter back to Pasco County Board ofCounty Commissioners for a rehearing to approve Petitioner's application for rezoning."

It is unclear whether the Court, in granting the Petition, granted all of the relief sought by Metro, or ifthe Court just quashed the Board's rezoning order and remanded the matter back to the Board for arehearing. Therefore, the County Attomey's Office has filed a Motion for Clarification and/orRehearing with the Circuit Court as to the issue of the relief granted by the Court. It is the CountyAttomey Office's position that, pursuant to Florida case law, the only remedy that is applicable wherea petition for writ of certiorari is granted is that the appealed order is quashed (voided) and a newhearing on the rezoning request must be held. This is an important issue to have clarified or

S:ICounty AttomeylCounty_Datalcau1 O-EB'Public'J.../TIGA TlONVvtETRO DEVELOPMENT GROUP, LLCIMEMOSI07-2430 Memo toBoard.doc

reheard since Metro sought in its petition a finding by the Court that Metro was "entitled to rezoningat the approved Comprehensive Plan density of three (3) units per acre (11710ts),"and also that theCourt remand this matter back to the Board for "a rehearing to approve Petitioner's application forrezoning." After the Court rules on the County's Motion for Clarification and/or Rehearing, thismatter will be brought back to the Board for further discussion and direction consistent with theCourt's ruling on that Motion. No decision regarding an appeal needs to made at this time since theMotion for Clarification and/or Rehearing tolls the time for filing an appeal.

THE BERT HARRIS ACT CLAIM

On April 24, 2007, the Board was briefed on the companion Bert Harris claim. The County'sresponse to the claim is due by July 16, 2007. This office has extensively researched the issues andthe case law and has discussed this claim with the other County Attomeys in the State. This officehas also been very mindful of the fact that this is the first Bert Harris Claim filed against PascoCounty and the fact that there is no reported case where the Bert Harris Act has successfully beenapplied to a County's denial of a rezoning. Procedurally, the County has 90 days from receipt of aclaim under the Bert Harris Act to provide a written response and settlement offer before a suit fordamages may be filed. The statute refers to the written response as a "settlement offer," eventhough one of the possible "offers" is "no change to the [County's] action." It is our opinion thatMetro is not entitled to relief under the Act. Accordingly, we recommend that the Board not providea response and settlement offer as required by the Statute. Instead, we recommend that the Boardauthorize the County Attomey's Office to respond to the Notice of Claim and set forth the County'sposition that Metro is not entitled to relief under the act as explained below.

Florida Statutes Section 70.001 ('the Bert Harris Act) specifically states that "it is the intent of theLegislature that, as a separate and distinct cause of action from the law of takings, the Legislatureherein provides for relief, or payment of compensation, when a new law, rule, regulation, orordinance of the state or a political entity in the state, as applied, unfairly affects real property."Section 70.001 (12) further states that "no cause of action exists under this section as to theapplication of any law enacted on or before May 11, 1995."

There was no new law, rule, regulation or ordinance of the County enacted after May 11, 1995, thatwas applied by the County in denying Metro's requested PUD zoning. The County applied thezoning laws enacted in 1975 and in 1989, with the adoption of the Land Development Code. TheCounty also applied Comprehensive Plan provisions enacted with the County's first comprehensive.plan in 1989.

Further, it is our opinion that even if Metro could make a claim under the Bert Harris Act, the claim ismoot by virtue of the Circuit Court's order. In order to be entitled to relief, the Bert Harris Act requiresthat "a specific action of a govemmental entity has inordinately burdened an existing use of realproperty or a vested right to a specific use of real property." Here, the specific action of the County hasbeen overtumed by the Circuit Court.

Finally, it is our position that Metro lacks standing to file a claim under the act. Section 70.001 (f),Florida Statutes, defines "property owner" as "the person who holds legal title to the real propertyat issue." In this matter, the property owner is Denton Oaks, LLC, not I\Ietro Development Group,LLC.

ALTERNATIVES AND ANALYSIS:

1. Authorize the County Attomey to respond to the Bert Harris Claim as outlined herein.

Direct the County Attomey's Office as to some other course of action.2.

RECOMMENDATION:

It is the recommendation of the County Attorney's Office that the Board of County Commissionersapprove alternative 1.

Attachments: Order Granting Petition for Writ of CertiorariExcerpts from Transcript of Board's 9/26/06 Hearing

cc: Bipin Parikh, ACA, Development Services (w/attachment)Cynthia M. Jolly, P.E., Administrator, Development Department (w/attachment)Debra M. Zampetti, Zoning/Code Compliance Administrator (w/attachment)

S:ICounty AttomeylCounty - Datalcau1 O-EBIPublicILITIGA TIONIMETRO DEVELOPMENT GROUP, LLCIMEMOSI07-2430 Memo toBoard.doc

IN THECIRCUITCOURTOFTHESIXTHJUDICIALCIRCUITOF THE STATEOF FLORIDAIN ANDFORPASCOCOUNTY

METRO DEVELOPMENT GROUP, LLC,

Petitioner,vs. Case No: 512006APOOOOO7WS

PASCO COUNTY, FLORIDA, .

a Political Subdivision of the State of Florida,

Respondent.I

James A. Martin; Esq.For Petitioner

W. Elizabeth Blair, Esq.For Respondent.

ORDER GRANTING PETITION FOR WRIT OF CERTIORARI

THIS MATTER comes before the Court upon Petitioner's Petition for Writ of

Certiorari, Response to Petition for Writ of Certiorari, and Petitioner's Reply. Upon

consideration of the same and being otherwise fully advised, the Court finds that the

Petition must be granted as set forth below.

Petitioner is a Florida limited liability company which owns the subject land in

Pasco County, Florida. In early 2005, Petitioner initially filed its Planned Unit

Development ("PUD") application. At that time, the subject parcel was zoned for

agriculture but had a Future Land Use Classification of RES 3 (3 residential units per

acre.)

RECEIVED At a hearing on July 12,2005, the Acting Zoning Administrator explained that

Petitioner filed for change in zoning from an agricultural district to a Planned Unit

JUN07 Z007

Pasco Co.AttorneyOffIce

Development district (PUD). Petitioner was proposing a 108 units and Staff s

recommendation was denial based on compatibility among other things. Mr. Tew,

counsel for Petitioner, requested a remand back to the DRC because there had been filed,

since his original filing, an adjacent RES 4 (4 residential units per acre) zoning property;

a preliminary site plan that is adjacent to the subject property which materially changes

the compatibility issues. It was then remanded back to the DRC.

Revised plans were submitted on February 17,2006. Another hearing was held on

May 23,2006 to review the plans. At that time, the plan had been reviewed by the

Growth Management Department and it had been determined that the proposed

development was consistent with the allowed density within the Residential 3 future land

use classification. Staff recommendation to the DRC was approval with conditions. DRC

acted on April 13, 2006, approval with amended conditions.

At that hearing, one of the commissioners, Mariano, expressed concern that the

proposed change was inconsistent and incompatible with the existing and established

extremely rural residential and agricultural land use pattern in the area. He then stated

that he would be content if they were one acre lots. Eleven residents testified as to why

the development should be denied; but most were in agreement with one acre lots.

Mariano then made a motion to deny Staff recommendation and gave an alternative of

one acre lots.

Counsel for Petitioner explained how the plan was compatible with the area. He

spokeabout the fact that the utilities were clearly planned for suburban development;

there was a Right Of Way Preservation Ordinance; the utilities were oversized for that

area; and there was a Residential 6 land use designation next to the subject property. He

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explained that he had a discussion with Commissioner Mariano and at that time, Mariano

never mentioned one acre lots. Counsel for Petitioner then requested the case be

remanded back to DRC so they could work with Staff or that it Qe continued for two

weeks to work with Staff and see if his client could come up with an acceptable site plan.

The hearing was then continued to June 27. Mariano then amended his motion to

continue for four weeks.

At a hearing on July 25, 2006, Counsel for Petitioner explained that Petitioner had

revised the site plan and now were requesting 78 lots instead of 108 originally requested.

He explained that the plan was recommended approval by staff, DRC, and the planning

committee. However, the hearing was continued to September 26, 2006, because Growth

Management and Zoning were uncomfortable with the documentation available.

On September 26, 2006, Millard, Assistant Zoning Administrator, advised the

Board of County Commissioners that Staff recommended approval with conditions and

changes. Millard explained that he spoke with the applicants representative and they

were in agreement with the changes. At that time, Counsel for Petitioner made a

statement explaining all of the concessions the applicant was willing to make, including

the fact that they have agreed to put two units on one acre tracts, which is substantially

less than the residential three category allowed under the Future Land Use Classification.

Five residents of the area asserted that the development is incolhpatible with the

surrounding agricultural area. Counsel explained that this property was in the center of a

sea of residential six and 1-L industrial land use areas. He went on to state that it is simply

not accurate to say they are not compatible with the Comprehensive Plan. He also said

..,.J

the areais suburban residential; not rural agricultural. He went on to statethat the plan is

far below suburban residential (res-3) and should be approved.

Commissioner Mariano again stated that the proposed change was inconsistent

and incompatible with existing and established "extremely.. .rural residential in

agricultural land use pattern in the area." Mariano then pointed out that everything in the

surrounding area is ten acre parcels or more. He then proceeded to make a motion to

approve AR-l zoning, to be site built homes, one acre lots. The following then took

place;

SIMON: Got a motion on the floor which is not for the, . . .Staff recommendation;it's for the approval of AR-one site built homes. Do I hear a second?

HILDEBRAND: Which would be what? . . .It's thirty nine acres so it [would]probably be about thirty-nine homes?

MARIANO: Right.

MULIERI: Second.

SIMON: We have a second. Further discussion going first to the motion maker.

MARIANO: Just to make one more thing. As far as some of the rezonings wetalked about in the area.. .there's one of 'em in a RES-three that we had just donethat also was, . . . .zoned at AR-one. Now, that one we even made it a cap ofthree lots on a ten-acre site and that is in the same RES-three that we're looking atright here. So, I think to .. .maintain consistency to what we've done in the past,we need to stick to it."

SUMNER; Well, actually the motion should be then to deny the P-U-D...

MARIANO: Okay, well, deny the P-U-D...

Mariano then amended the motion to deny the P-U-D and go to A-R one zoning.

After further discussion, he went on to state "I think I've set the record where we've go,

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we gotgoodbackgroundto .. .makethis motionstand."Themotion passedthreeto two.

The PUD was denied, and A-R 1 was recommended.

Petitioner filed the Petition for Writ of Certiorari on October 25, 2006. Upon

review of the file, it came to this Court's attention that the Order complained of had not.

been filed with the Court. On December 19,2007, this Court entered a Notice to File

Order Under Review. On January 9, 2007, Respondentfiled its' Notice of Filing

Resolution No. 06-123RZ with this Court. That document is dated September26,2006,

and was apparently filed with the Pasco County Clerk on November 29,2006.

This Court, having reviewed the record in its entirety, is concerned about the

substantial discrepancy between the record and the written order. Specifically, the record

reveals that there was a change in zoning from Residential 3 to AR 1. However, that

change is not contained in the written order. Not only is the change not mentioned; there

is absolutely no reference to AR 1 zoning in the written order whatsoever. This is of

great concern to this Court because that issue was repeatedly addressed in the transcript

and appears to have ultimately passed by motion. Accordingly, the Court finds it

necessary to address both the transcript and the written order.

In light of the transcript, it appears that the Board of County Commissioners

changed or attempted to change the zoning of the subject property to AR 1. If in fact that

is what they did or attempted to do, this Court will grant the Petition for Writ of

Certiorari on that issue alone. As argued by Petitioner, without notice, presentation of

any evidence, or any discussion, the Board unilaterally voted to change the zoning on

Petitioner's property to an AR 1 zoning district (the result of which would be a limit of

only one unit per acre, or 39 lots). The Board failed to provide the Petitioner the

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appropriatenotice of its intentions to rezone the property to AR 1 and failed to permit the

Petitioner the opportunity to address the unilateral down zoning without due process of

law. In effect, the BOCC completely ignored its own Comprehensive Plan (which

allowed three units per acre) and unilaterally changed its Zoning Map without notice,

without hearing, without evidence, and without following the essential requirements of

law.

If, however, what the Board ultimately ordered is that which is in the written

Order, then this Court will reverse because the decision is not supported by competent

substantial evidence and the Board ignored the obvious requirements of law. As argued

by Petitioner, despite the County staff recommendation of approval, the unanimous

recommendations for approval by its two advisory boards, and its own instructions to its

staff, the Board inexplicably ignored the evidence in this case and denied the Petitioner's

request for a 78 lot subdivision. It appears from the record that Petitioner met its initial

burden of establishing by competent substantial evidence that it complied with the

reasonable procedural requirements of the zoning ordinance and that the zoning and use

sought for the property was consistent with the applicable Comprehensive Plan. As

Petitioner argued " [a]s the record in this case makes clear, the county's governing

board did no more than acquiesce to the resident commissioner's whims and desires for

development in his geographic district, and thereby ignored all the facts and evidence

presented by its own staff, all of its own advisory boards, and the Petitioner. There is no

legally valid record evidence whatsoever to support the Board's decision in denying the

rezoning. . ." It is, therefore,

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ORDERED AND ADJUDGED that the Petition for Writ of Certiorari is

GRANTED.

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County,

L '~Florida this ~ day of J\Jn , 2007.

/-

Stanley R.Circuit Judge

Copies furnished to:James A. Martin, Esq.W. Elizabeth Blair, Esq.

7

MEETING

DATE

SUBJECT

VERBATIM BEGINS:

Boee

September 26,2006

RZ~6359 Denton Oaks, LLC/Denton Oaks PUD

Urn, so, with that I'm gonna make the motion to approve it

withA-R-one zoning.

Say. ..

A~R~onezoning to be site-built homes, one-acre lots.

Got a motion on the floor which is not for the, ah, Staff

recommendation; it's for the approval of A-R-one site-built

homes. Do I hear a second?

Which would be what? Thirty,ah,

Nine.

it's thirty-nine acres so it probably be about thirty-nine

homes?

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Right.

Second.

We have a second. Further discussion going first to the

motion maker.

Just to make one more thing. As far as some of the

rezonings we talked about in the area... there's one of 'em

in a RES-three that we had just done that also was, ah,

zoned at A-R-one. Now, that one we even made it a cap of

three lots on a ten-acre site and that is in the same RES-

three that we're looking at right here. So, I think to main,

maintain consistency to what we've done in the past, we

need to stick to it.

Well, actu~lIy the motion sho,uldbe then to deny the P-U-D

Okay, well, deny the P-U-D ...

And then the... whateverzoning. ..

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We'ILgofrom there.

Yeah.

Okay.

Well, you can do it iri the same motion but it ... you've got to

deny to P-U-D ...

Okay. Let me amend the motion to deny the P-U-D and go

to A-R-one zoning.

Is that comfortablewith the seconder?

Yeah, I'll second it for discussion.

Okay and you can continue to discussion Commissioner, ah, ...

Mariano, ifwant you.

I, I, I think just for the history of the Board I think I've made

my points.

Going to the seconder.

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Well, this is really difficult, um, I understand the people's

concems and yet there is a lot of buffering, they've reduced

it to seventy-eight. It's really... and I understand what

Commissioner Mariano's saying so it's a ... it's a really hard

decision.

Commissioner Hildebrand, did you have comment?

No, I, I just was thinking about the one speaker and, of

course, we're all sensitive to insurance and said that if this

was approved, her insurance rates would go up. I, I don't

see how that can be part of a rezoning iss ... a land use

decision. Um, I keep looking at the fact that we have RES-

one on the one side; we have the Art Engle Park up there in

the other side; we have the industrial on the other side with

central water and sewer to come down there and I

remember when the, the change went very well. The

hundred and eight up to the one-thirteen and I remember

asking Mister Millard and I said, wow, you, you changed the

density on this. You went up instead of down and, I think,

you explained that for the reasons which I just, you know,

mentioned and, of course, the change in the Zoning

Ad ministrator.

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Well, I think Miss, Miss Zampetti was in on the <!'. was the

Zoning Administrator at the time and she's the one who had

made the reca ... the original recommendation.

Commissioner Schrader.

Yeah, I'm just struggling with the land use um, ah, Future

Land Use map. I mean, I'm not gonna support the motion

because I think the property owner...

Has rights...

the developer has, ah, acquiesced quite extensively and,

and I mean I'm... tWo units to the acre, um, is still... those

are, those are large lots and, and, I mean, I'm, I'm not going

to support the motion.

Chair will, ah, just entertain a momenf of discussion. I would

tell you there is risk involved in supporting this motion. If you

support this motion, this is not a small group of individuals

nor is it an insignificant amount of difference in the valuation

of the land. They go in and you're looking at a, a Land Use

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classification, a RES-three... you may be looking at a

hundred and ten or a hundred and thirteen. They are

capitalized, they are motivated, and unless this is during the

last three weeks of a due diligence period of an acquisition

contract, I will tell you they will fight you. Now, having said

that, don't ask me; ask your County Attorney how he feels

the probability would be to defend A-R-one given the Land

Use classification.

All around there.

Well, ask him.

Well. ..

That's kind of what I ...

He's not shy.

He tells me how he feels.

Well, being that Joel's the opposition shouldn't be much

problem.

BOCC 09/26/2006

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What'd he say?

And, and for what it's worth my client has closed on the

property and owns it. It's not in your contract.

The, ah, that's a, that's a tough one.

Yeah.

That's a tough question that, you know, I ... at best I think

we have a fifty-fifty chance of winning. I think, you know,

following, ah, Commissioner Mariano's logic an his, urn, ah,

the things that he's put in the record as far as the basis for,

ah, supporting...

They were good.

ah, one... A-R-one ... or RES... whatever that is.

He qualified it ... one.

A-R-one.

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But, urn, ah, you know. Commissioner Simon is correct.

There is, there is risk there, ah, but, you know. I, I can't, I

can't say...

I'm, I'm gonna side with the resident Com~issioner.. "'

Whatever he wants to do. I just want you to understand.

You may be looking at a hundred and twenty units.

I think we're...

They're not under contract. They bought it, they own it, they

will go to the mat with this. You know, I, I, I know you talked

and I, I, I ... you willing to risk that or does it sound better to

you now understanding that seventy-eight with a good sized

buffer and some reasonable levels of restrictions may be a

heck of a lot better than one-twenty rammed down your

throat and no concessions. I, you know, just... I feel

compelled to tell people like when the wheel's falling off the

car if I see it. Your wheel is falling off the car.

I, I feel...

I'm not going to argue with you.

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Okay. Well, I, I, I'm taking up and Miss Zampetti, ah, was

here before when this was first recommended. I've taken

her conditions that were in the record, I've got this Board's

motion. I think this Board is very consistent in that area what

they've done, ah, the one, ah, parcel across the park they

bring up was already in there. We had nothing to do, ah,

these rezonings that we've done in the area have shown

how this area has grown and how it's developed, It's not in

intense as some areas. I mean, you go, you can go down

Coyote Road you're gonna see, see telephone poles in the

middle of a road. Ah, you got roads that needs to be

upgraded as well, but sticking just with the rezonings that

we've go here in the past we're very consistent if we stay

withA-R-one so, I'll,I'll ...

Surrounded by, you know...

If ...

The whole in the donut.

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Let me, let me put this motion up, if I could. Mary.. .would

you put it on the Elmo, please. If, if you look at to what's

consistent around there, I mean, there's mostly ten-acre

parcels and better. This map right here is a zoning that, ah,

Mister Balish, I think, had turned in at the last hearing that

we had. On the top left where it's oranged out...

Uh huh.

That's the size of the lots right there. Look at everything else

around it. Everything south of Denton Ave is all ten-acre

parcels or better. If you go further along Coyote, that's

where I think there's, um, ten-acre parcel down to, ah,

broken down to three, three and a third acres and that was a

recent rezoning we just did. I think I've, I think .I've set the

record where we've got, we got good background to, ah,

make this motion stand.

Okay, refresh my memory. Do we have a second as it

stands.

Yes.

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Okay, we're still under discussion. Any further discussion.

All those in favor.

Aye.

Aye.

Any opposed.

No.

No.

That would be three-two. It passes.

Three-two. Oh, the motion, oh ...

Okay.

That motion was to, to deny the M-P-U-D ...

Resident Commissioner said the...

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VERBATIM ENDS.

~~-- ~~-.. Sandra Merkel. Deputy Clerk

SOCC 09/26/2006Page 12 of 12

HILDEBRAND: A-R-one.

2

3 SIMON: the P-U-D is denied; A-R-one is recommended. And that's

4 it.

5

6 SCHRADER: Next item.

7

8 SIMON: Next item, please.

9

10 HILDEBRAND: That was tough.