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HomeMy WebLinkAboutExhibit10Exhibit 4.2.2 Binding Letter from DCA GY&S/208223.17 Viol/ Art STATE OF FLOR1tA DEPARTMENT OF COMMUNITY AFFAIRS "Dedicated to making Florida a better place to cal! home" JEB BUSH Governor November 15 , 2002 Judith A. Burke, Esquire Shutts and Bowen, LLP 1500 Miami Center 201 South Biscayne Boulevard Miami, FL 33131 STEVEN M. SEISERT Secretary RE: Binding Letter of Vested Rights and Interpretation of Development of Regional Impact ("DRI") Status File No. BLIVR 11003-001 FINAL ORDER NO: DCA02-BL-288 Dear Ms. Burke: We have evaluated your Application for a Binding Letter of Vested Rights, dated September 25, 2002 ("Application"), and received on September 27, 2002. Based on the information contained in the application and supporting documentation, we enter the following Findings of Facts, Conclusions of Law, and Order. Per your request, the Binding Letter includes a determination as to the Watson Island Marina ("Marina") site's vested rights. FINDINGS OF FACT Preliminary Findings 1. 1 he applicant is a:lagstone Properties, LLC, ("Applicant"), which is represented in its application by Judith A. Burke as its authorized representative. The application describes the project as redevelopment of a forty-two (42) wet slip marina providing mooring for watercraft, encompassing 13.4 acres of submerged land, which is owned by the City of Miami. 2556 SHUMARD OAK BOULEVARD • TALLAHASSEE. FLORIDA 32399-2 100 Phone: 850.488.846615une0m 2(8.8466 FAX: 850.921.07811Suncom 291.0781 Internet address: httD':iwww,dce.state.tl,us CRITCAl. STATE CONCERN Fine OFFICE 278E 0 •ra as )* '.'aY. Suds 212 Marathon, Ft, 0i4OZ227 (2OS) 2012.02 COMMUNITY PLANNING EMERGENCY MANAGEMENT 2555 S+u+.xa 13444erani 2555 SM,ms'd Oa► 5ort.vard Ta5sl414.4, FL 223912100 TMan»a.,•FL 2239,Z100 (550)410.2355 (E50)413-9969 HOUSING 1 COMMUNITY DEVELOPMENT 2555 S7umva 0,5 9ab.ar,5 TszaAsu.s. FL 72359-2100 IE50)410.7956 2. All communications made by the applicant, all material submitted by the applicant in the Application, and all other relevant written materials are incorporated herein by reference. 3. On October 11, 2002, a notice of the applicant's request for Binding Letter was published in the Florida Administrative Weekly. In addition, the South Florida Regional Planning Council, the City of Miami, and Miami -Dade County were notified of the application's receipt. 4. The project site is located wholly in the City of Miami ("City"), Miami -Dade County, in Section 31,Township 53, Range 42. 5. The project site consists of 13.4 acres of submerged land. As represented in the Application, the existing improvements will lie wholly within the I3.4 area. 6. A brief summary of the development on the project site is as follows: The site is comprised of a forty-two (42) wet slip marina, which provides mooring for various watercraft used for sport, pleasure, and/or commercial fishing. The Marina was constructed prior to July 1, 1973; It was constructed in 1956 and has been in continuous operation since that date. The Marina includes a double row of mooring pilings, but does not include any docks or finger piers. The Applicant would like to develop a mega -yacht marina ("Project"), a forty-two (42) wet slip marina in the same footprint. Vested Rights 7. For Purposes of identifying the types of uses, which were permitted, the applicant submitted documentation beginning in 1956. There were no City government approvals pertinent to the scope of review as to vested rights as they relate to marinas. The statement was made, however, that the Marina was "completed in accordance with all applicable federal, state, and local statutes, rules regulation's and ordinances in effect as of 1956." In 1967, the City adopted an ordinance that required a permit for any waterfront improvements. As the Marina was constructed prior to 1967, a building permit was not required. Aerial photographs from 1966 along with relevant documentation indicate that the Marina was developed, and had remained in the same condition since prior to July 1, 1973. 8. In 1975. the State of Florida required Dredge and Fill Permits for coastal construction. The Marina was constructed prior to 1975 and thus did not require such a permit. 9. In 1980, the Miami -Dade County adopted an ordinance requiring a Class I Coastal Construction Permit for construction or renovations over any tidal waters, submerged bay bottomland, or wetlands in the County. The Marina did not require such a permit since it was constructed prior to 1980. 2 10. In 1990, Miami -Dade County instituted a Marine Facilities Operating Permit ("MOP") program. Every year since the inception of the program, the Marina had received an MOP for forty-three (43) commercial vessels. 1 l The submerged land is unplatted. No subdivision plats were approved for development between August 1, 1967 and July 1, 1973. 12. There are currently no pending development permits or other authorizations for the Project. 13. There are no development permits or authorizations that have been requested by the Project. 14. There are no development permits or authorizations that have been denied for the Project. 15. There has been no conveyance or agreement to convey property to the state or local government as prerequisite for approval of a zoning change. 16. The Marina has not been registered with the Division of Florida Land Sales and Condominiums. 17. As proposed in the Application, all of the Project will lie within the footprint of the existing Marina. 18. The Project is classified as a marina for purposes of D.RI guidelines and standards. 19. The Project has not received any prior binding letters of interpretation from the Department. • CONCLUSIONS OF LAW Pursuant to Section 380.06(4)(f), Florida Statutes, a development with vested rights may demolish and reconstruct within the same approximate footprint of its vested development without divesting this vested rights if the change in the size of the development does not exceed the substantial deviation criteria set forth in Section 380.06(19)(b), Florida Statutes. Under Section 380.06(4)(f), F.S., the existing Marina on the subject site is vested. Demolition of the existing Marina and subsequent construction of the Project on the subject site will retain vesting from DR] review. 3 ORDER It is hereby ordered that the subject site has vested rights with respect to the forty-two (42) slips for the mega -yacht marina project. The proposed Project, as described in the September 25, 2002, application for binding letter, is deemed to be entitled to vested rights with respect for DRI review. The development evaluated in this binding letter shall be considered cumulatively with any future development in terms of the guidelines and standards contained in Chapter 28-24, F.A.C., and Section 3 80.0651, F.S., and its associated regional impacts. Should any of the above representations made in the application be substantially changed, further review of the project may be required. This letter shall expire and become void as of November 15, 2005, unless the proposed development has been substantially commenced by this date. This date may be extended by . mutual agreement of the Department, local government ofjunsdiction, and the developer. This determination does not obviate the need to comply with all other applicable state or local government permitting procedures. Any questions regarding this determination may be directed to Colin M. R pnari As ' t General Counsel, at (850) 488-0410. • Since o Timmerman, Director Division of Community Planning cc: David Dahlstrom, South Florida Regional Planning Council Carlos Gimenez, City Manager, City of Miami Ruth Ellis Myers, Miami -Dade County • FILING AND ACKNOWLEDGEMENT FILED, on this date, with the designated Agency Cle , receipt., Mich is hereby ackno vl if Paula P. Ford ate Agency Clerk 4 NOTICE OF RIGHTS The applicant has the opportunity for a formal administrative proceeding regarding this binding letter pursuant to Sections 120569 & 120.569 & I20.57(1), F.S. If you dispute any issue of material fact stated in the binding letter, then you may file a petition requesting a formal administrative hearing before the an administrative law judge of the Division of Administrative Hearings pursuant to Sections 120.569 & 120.57(1), F.S. and Chapter 28-106, Parts 1 and.Il, F.A.C. At a formal administrative hearing, you may be represented by counsel or other qualified representative, and you will have the opportunity to present evidence and argument on all the issues involved, to conduct cross examination and submit rebuttal evidence, to submit proposed findings of fact and orders, and to file exceptions to any recommended order. If you desire a formal administrative hearing, you must file with the agency clerk of the Department of Community Affairs a written pleading entitled `petition for administrative proceedings' within 30 days of receipt of this notice. A petition is filed when it is received by the Agency Clerk in the Department's Office of General Counsel, 2555 Shumard Oak Boulevard, Tallahassee, Florida 32399-2100. The petition must meet the filing requirements in Rule 28-106.104(2), F.A.C. and must be submitted in accordance with Rule 28-106.201(2), F.A.C. The petition must include the signature of someone authorized to act on your behalf. A petition must specifically request an administrative proceeding, it must admit or deny each material fact contained in the binding letter, and it must state any defenses upon which you rely. You waive the right to an administrative proceeding if you don not file a petition with the agency clerk within the time frames described above. You may also decide that no formal administrative proceeding is required for this binding Letter. If you do not request a formal administrative proceeding, this binding letter constitutes final agency action and is subject to judicial review of the binding letter pursuant o Section 120.68, F.S., and Florida Rules of Appellate Procedure 9.03(b)(1)(c) and 9.110. To initiate an appeal of this binding letter, a notice of appeal must be filed witb the Department's Agency Clerk, 2555 Shumard Oak Boulevard, Tallahassee, Florida 32399 2100, and with the appropriate district court of appeal within 30 days of the day this binding letter is filed with the agency clerk. The notice of appeal filed with the district court of appeal must be accompanied by the filing fee specified in Section 35.22(3),F.S., and must be substantially in the form prescribed' by Florida Rule of Appellate Procedure 9.900(a). You waive your right to judicial review if the notice of appeal is not timely filed with the agency clerk and the appropriate district court of appeal. Mediation under Section 120.573, F.S., is available with respect to the issues resolved by this binding letter. A request for mediation must include the information required by Rule 28- 106.402, F.A.C. Choosing mediation does not affect the right to an administrative hearing. 5