MARTIN COUNTY BOARD OF COUNTY COMMISSIONERS 2401 S.E. MONTEREY ROAD STUART, FL 34996 DOUG SMITH Commissioner, District 1 ED FIELDING Commissioner, District 2 HAROLD E. JENKINS II Commissioner, District 3 Telephone: (772) 288-5442 Fax: (772) 288-5439 Email: swoods@martin.fl.us RSM US LLP 1555 Palm Beach Lakes Blvd, Ste. 700 West Palm Beach, FL 33401-2348 SARAH HEARD Commissioner, District 4 EDWARD V. CIAMPI Commissioner, District 5 Re: County Attorney s Office Representation of Martin County Board of County Commissioners and all County Departments Ladies and Gentlemen: TARYN KRYZDA, CPM County Administrator SARAH W. WOODS County Attorney This letter is in response to the letter from the Director of Financial Services for the Clerk of the Circuit Court and Comptroller for Martin County, dated January 26, 2017, requesting information regarding the representation of the Martin County Board of County Commissioners and all County Departments by the Martin County Attorney s Office and requesting disclosure of pending or threatened litigation, asserted claims, and assessments and unasserted claims and assessments (considered by us to be probable of assertion, and that, if asserted, would have at least a reasonable possibility of an unfavorable outcome). A copy of the letter is enclosed. Martin County constantly deals with a wide variety of matters, some of which inevitably result in litigation. The County Attorney s Office serves as general counsel for the County in most of that litigation. It is impossible to predict which matters will actually result in claims or litigation. I have, however, reviewed our records and made a determination, as to those legal matters that come within the purview of your request. To the best of my knowledge, those matters are set forth below. TELEPHONE 772-288-5400 WEB ADDRESS http://www.martin.fl.us 1 of 10
Page 2 PENDINGORTHREATENED LITIGATION, ASSERTED CLAIMS, AND ASSESSMENTS PENDING CASES Martin County v. Florida Development Finance Corporation, et al., Case No. 2015-CA-008256-O (Ninth Circuit Court): This case involves a petition for writ of certiorari in the circuit court in and for Orange County, contesting the validity of the Florida Development Finance Corporation s approval of a private activity bond application filed by All Aboard Holdings, LLC. The petition alleges that the FDFC failed to provide due process to the County, that the decision was not supported by competent, substantial evidence, and that the decision did not comport with the essential requirements of the law. The petition does not seek monetary relief. Little Club Condominium Assoc., et al. v. Martin County, RG Towers, LLC and Kenai Properties, LLC, Case No.: 2016-CA-000863 (Nineteenth Judicial Circuit): This case involves a declaratory judgment action challenging Martin County Board of County Commissioners approval of a development order for a wireless telecommunication facility. The complaint alleges that the development order violates portions of the Martin County Comprehensive Plan. There are no monetary damages claimed in this case. Little Club Condominium Assoc., et al. v. Martin County, RG Towers, LLC and Kenai Properties, LLC, Case No.: 2016-AP-000009 (In the Appellate Division of the Nineteenth Judicial Circuit Court): This is a Petition for Writ of Certiorari challenging whether the Martin County Board of County Commissioners approval of a development order for wireless telecommunication facility issued to RG Towers, LLC and Kenai Properties, LLC was based on competent substantial evidence. There are no monetary damages claimed in this case. RG Towers, LLC and Kenai Properties, LLC v. Martin County, Little Club Condominium Association, et al., Case No.:2016-CA-001309 (Nineteenth Judicial Circuit): This case involves a declaratory judgment action challenging Martin County Board of County Commissioners approval of a development order 2 of 10
Page 3 for a wireless telecommunication facility issued to Little Club Condominium Association and Dynamic Towers, Inc. The complaint alleges that the development order violates portions of the Martin County Comprehensive Plan. There are no monetary damages claimed in this case. RG Towers, LLC and Kenai Properties, LLC v. Martin County, Little Club Condominium Association, et al, Case No.:2016-AP-000020 (In the Appellate Division of the Nineteenth Judicial Circuit Court): This is a Petition for Writ of Certiorari challenging whether the Martin County Board of County Commissioners approval of a development order for wireless telecommunication facility issued to Little Club Condominium Association and Dynamic Towers, Inc. was based on competent substantial evidence. There are no monetary damages claimed in this case. TRICO There are a number of outstanding claims and lawsuits against the County that are handled through the TRICO Risk Management Program, a selfinsured consortium of public entities formed on October 1, 1987. I am offering no specific evaluation or comment regarding these matters. Please contact Danielle Wymer with Ascension Benefits & Insurance Solutions (772-919-8664) if you need further information regarding the same. Outside Counsel Outside contract counsel (contact information provided) have been engaged for the following matters: Polo North Country Club v. Martin County, Case No. 2009-CA-1227 (Nineteenth Circuit Court): Plaintiff Polo North Country Club, Inc. filed a lawsuit alleging breach of contract and specific performance arising from a December 31, 1992, contract between Martin County and the Martin Downs Country Club to provide 950,000 gallons of irrigation quality ( IQ ) water per day; IQ water is reclaimed water. The County provided the correct gallonage, but substituted well water for IQ water when IQ water was unavailable. Plaintiffs sought monetary damages for alleged harm to the golf course, increased cost of fertilization, and lost revenue and profits; the amount of damages has not been specified. The case has not been set for trial and no work has been done on the case since 2012. Counsel cannot ascertain the 3 of 10
Page 4 amount or likelihood of liability at this time. The County is represented by David Acton, Esq., 601 Heritage Dr., Ste. 458, Jupiter, FL 33458. The telephone no. is 561-656-2377. Reily Enterprises, LLC v. Martin County, Case No. 2015-CA-840 (Nineteenth Circuit Court); Case No. 4D16-3215 (Fla. 4th District Court of Appeal): Plaintiff, Reily Enterprises, LLC, filed a Complaint alleging a single breach of contract count against Martin County as a result of a zoning decision made on Plaintiff s property. Plaintiff claimed that the County s denial of an Amendment to a Planned Unit Development (PUD) Zoning Agreement, Revised Master Site Plan, and Final Site Plan constituted a breach of contract. Plaintiff did not specify the amount of purported damages. The County moved to dismiss, contending that the PUD Zoning Agreement was a development order rather than a contract that can be breached, and, in any event, the denial of the requested amendment was supported by the terms of an earlier agreement and various provisions of the County s Land Development Regulations. The Court granted dismissal with prejudice and Reily appealed the ruling on September 23, 2016. The parties have since mediated the case and entered into a settlement agreement, certain terms of which must be performed within a specific period of time and which culminate in Reily s dismissal of the appeal. While the amount of purported damages remains unspecified, the County maintains that it is not subject to any liability and will advance the same position on appeal should the settlement agreement fail. The County is represented by David Acton, Esq., 601 Heritage Dr., Ste. 458, Jupiter, FL 33458. The telephone no. is 561-656-2377. Lamar Outdoor Advertising v. Martin County, Case No. 2000-CA-433: On June 20, 2000, a complaint was filed against Martin County in the local circuit court by Lamar Whiteco Outdoor Advertising. It claimed that the current provisions of the County Code of Laws and Ordinances that regulate billboards violate various provisions of state law, the Florida Constitution, and the United States Constitution. The company sought a declaration that such provisions are illegal and an injunction against enforcement of those provisions by the County, but did not seek damages. For information related to the objectives sought by Plaintiff, please speak with outside counsel. The County is represented by David Acton, Esq., 601 Heritage Dr., Ste. 458, Jupiter, FL 33458. The telephone no. is 561-656- 2377. 4 of 10
Page 5 Lake Point Phase I, LLC & Lake Point Phase II, LLC v South Florida Water Management District, Martin County & Hurchalla, Case No. 2013- CA-001321 (formerly 2013-CA-002122-AD Palm Beach Co.): The Lake Point project was conceived as a public-private partnership between Lake Point, the South Florida Water Management District (SFWMD) and Martin County. The Project is intended to be constructed on Lake Point s 2200 acre property in southwestern Martin County, in close proximity to Lake Okeechobee. The Project was designed to consist of water management and water quality treatment areas on the property, with hydraulic connections to Lake Okeechobee, the C-44 canal and the L-8 canal extension. The Project is in a location that will allow it to capture and treat water discharged from Lake Okeechobee before the water is sent down the C-44 canal. Large Lake Okeechobee discharges down the C-44 canal cause significant harm to the St. Lucie estuary. As a regional water resource project, the Project s purpose includes improving water quality and reducing harmful discharges to the estuary. Lake Point filed its lawsuits against the SFWMD, Martin County, and Maggy Hurchalla, alleging that SFWMD and Martin County breached the agreements creating the Project, and that Martin County tortiously interfered with Lake Point s business relationship with SFWMD. SFWMD and Martin County objected to Lake Point s activities, as Lake Point has not performed its obligations related to the Project. Rather, Lake Point pursued a commercial water project that would purportedly generate longterm revenue. At the time the agreements were executed, the parties did not contemplate such commercial activity. Lake Point also raised claims against the County for alleged public records violations, upon which the trial court entered judgment in favor of the County in September 2015. However, the judgment was set aside in early 2016 and the public records claims are set for arbitration on February 8 and 9, 2017. The public records claims are also set for a three-day trial beginning February 21, 2017, should those claims remain unresolved upon completion of arbitration. A portion of outside counsel s monthly bill is being paid by our insurance carrier. The Plaintiff is seeking damages in the millions. For more information related to monetary damages and objectives sought by Plaintiff, please speak with outside counsel. The County is represented in this matter by Edward de la Parte, Esq., de la Parte & Gilbert, P.A., 101 E. Kennedy 5 of 10
Page 6 Blvd., Suite 2000, Tampa, FL 33602. The phone number for Mr. de la Parte is 813-229-2775. Martin County et al. v. U.S. Department of Transportation, et al., Case No. 15-632 (U.S. District Court, District of Columbia): In this case, Martin County and others challenged the decision of the U.S. Department of Transportation to authorize private activity bonds for the All Aboard Florida project. This case does not seek monetary relief. The County is represented in this matter by Stephen M. Ryan, Esq., McDermott, Will & Emery, The McDermott Building, 500 North Capitol Street, NW, Washington, DC 20001. The telephone no. is 202-756-8000. Martin County and St. Lucie County v. South Florida Water Management District and All Aboard Florida, LLC., Case No. 16-005718 (Florida Division of Administrative Hearings): This case involves the two counties challenging the issuance of an Environmental Resource Permit to All Aboard Florida. The Petition alleges that All Aboard Florida, as permit applicant, failed to provide the agency with reasonable assurances that its rail project will not adversely impact the water resources of the state within Martin and St. Lucie counties. The permit challenge does not seek monetary relief. The County is represented in this matter by Segundo J. Fernandez, Esq., Oertel, Fernandez, Bryant & Atkinson, P.A., 2060 Delta Way, Tallahassee, FL 32303 or P.O. Box 1110, Tallahassee, FL 32302. The telephone no. is 850-521-0700. Savannah Oaks (D.R. Horton): ASSERTED CLAIMS (NOT LITIGATION) Residential developer, D.R. Horton, asserts that the Building Department denied a form board survey after initially approving for construction a site plan that reflected a single-family home in an area within which construction is disallowed under County setback requirements. Damages have been estimated by claimant as $110,000.00. No formal notice of claim has been received to date. Staff has been working with D.R. Horton to propose a resolution to this matter for consideration by the Board of County Commissioners within the next few months. The likelihood of recovery, should suit be filed, is low. 6 of 10
Page 7 Sharon Street Garage: Residents of the Hobe Hills Community filed a Verified Complaint with Martin County alleging various violations to Martin County s Land Development Code and its Comprehensive Growth Management Plan when Martin County approved a structure to be constructed on property owner s plot as an accessory to the residence on the adjacent lot (a detached garage), but the structure actually constructed is an industrial two story commercial building on property zoned for residential use. The Verified Complaint was submitted demanding that Martin County enforce its Land Development Code and its Comprehensive Growth Management Plan and require the owner of the structure to correct the violation by directing that the structure be demolished or removed from the property. Complainants will seek recovery of attorneys fees and court costs if an action for injunctive relief is instituted with the Court. Martin County has not been served with a formal complaint to date. None known at this time. UNASSERTED CLAIMS AND ASSESSMENTS I confirm that in the course of performing legal services for Martin County with respect to any matters recognized to involve an unasserted claim or assessment which may call for financial statement disclosure, I will form a professional conclusion on whether I should disclose or consider disclosing such possible claim or assessment, as a matter of professional responsibility, and will advise the Clerk of Court and Comptroller and will consult with the Clerk concerning the questions of such disclosure and the applicable requirements of Statement of Financial Accounting Standard No. 5. This response includes matters that existed on September 30, 2016, for the period from September 30, 2015, to date, and any new matters that arose from September 30, 2016 to date, and includes any matters relating to the County Departments. Please feel free to contact me if any other information is required. Cordially Yours, Sarah W. Woods County Attorney 7 of 10
Page 8 Enclosure Copy: Board of County Commissioners Taryn Kryzda, County Administrator Roger Baltz, Assistant County Administrator Paul Schmitt, Director of Financial Services Don Donaldson, County Engineer Nicki van Vonno, Growth Management Director Jennifer Manning, Grants Compliance/Budget Manager 8 of 10
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