Okaloosa County BOCC — January 19, 2016 — OC-5 Jill Crew Letter to John Hofstad December 17, 2015 — reading text

December 17, 2015 Via Email and Certified Mail, RRR John Hofstad County Administrator 1250 N Eglin Pkwy, Suite 102 Shalimar, FL 32579 Managerinfo@co.okaloosa.fl.us Re: Objection to Hearing on Application to Amend the Bluewater Bay Master Land Use Plan Map Dear Mr. Hofstad: This firm represents Raimund Herden in his capacity as one of the original developers of Bluewater Bay and as the sole developer of Magnolia Plantation and the Magnolia 9-hole golf course. I also represent the Magnolia Plantation Property Owners Association (“MPPOA”). Mr. Herden and the MPPOA object to the County conducting a hearing on January 19, 2016, regarding Randy Wise’s Application to amend the Magnolia planned residential community component of the Master Land Use Plan Map (the “Application”). Mr. Herden, the MPPOA, and many residents of the Magnolia planned residential community have repeatedly objected to County staff’s decision to advance Mr. Wise’s Application to a hearing before the Board of County Commissioners (the “BCC”). I presented letters to the County on June 12, 2015 and on October 29, 2015, outlining significant issues that must be resolved before the Application could be advanced to the BCC. To date, these material issues have not been addressed. My clients urge the County Administrator to have the following issues resolved by County staff before the BCC considers the Application. I. Submission of Conceptual, Master Phased Development Plans is Precondition to Hearing Mr. Wise failed to submit to the County his conceptual, master phased development plans for Fairways 1, 4, 6, 7, and 9, as required by the Land Development Code (the “LDC.”) The BCC cannot conduct a hearing on the Application until such plans are submitted to the County and properly evaluated by staff. A developer must submit a conceptual master plan for his entire phased development. LDC, Ch. 6. Where the preliminary plat submitted for development approval covers only a part of the total phased development plan, the developer must submit a master plan conceptual plan or sketch for the entire phased development. A conceptual master plan is necessary so that the County, and those individuals who are affected by the phased development, may assess the true scope and nature of the phased development plans, and the effect or impacts such development will have on traffic, infrastructure, roadways, storm water drainage, water and sewer, and existing development. The conceptual master development plan will also provide information for County staff to determine whether an application for an amendment of a DRI Master Land Use Plan Map qualifies as a minor, 238 MIRACLE STRIP PKWY SW (850) 244-0400 FAX (850) 244-4488 FORT WALTON BEACH , FL 32548 (888) 244-4LAW JILL@CREWLAW.COM Mr. John Hofstad Page 2 of 4 §380.06(19)(e)l change, or whether the Application must proceed through the formal and comprehensive Notice of Proposed Change process. I previously notified the County that Randy Wise has publicly disseminated and discussed his conceptual, master phased development plans for the Magnolia 9-hole golf course. See my letter dated October 29, 2015. Those development plans include the following, in addition to his pending 21-lot residential development application for Fairway 4: (a) cluster residential units on Fairways 6, 7, and 9, (b) executive homes on Fairway 1, and (c) a town center commercial project on Fairway 7 (the “Master Development Plans”). Mr. Wise publicly stated that he intends to add 133 new residential units and commercial units as part of his Master Development Plan. Except for development now proposed for Fairway 1, the Master Development Plans that Mr. Wise has promoted in the past six months are substantially similar to the development plans Mr. Wise promoted during the 2013 NOPC Process. Attached are affidavits from Magnolia residents and from Mr. Herden that document Mr. Wise’s development plans for Fairways 1, 4, 6, 7, and 9 of the Magnolia 9-hole golf course. In late October 2015, Mr. Herden and Jerry White attended a meeting with Mr. Wise and Bluewater Bay Resort owners (“BBR”) where Mr. Wise discussed and promoted his Master Development Plans. Mr. Wise rolled out his large scale Master Development Plans for Mr. Herden and Mr. White to view. During the meeting, Mr. Wise explained that he was confident of getting approval for his Fairway 4 development plans by County staff and the BCC, but doubted he would get approval if his Master Development Plan was submitted. Certainly Mr. Wise knows that if he submitted his Master Development Plan he would no longer qualify for the simplified review and approval process under §380.06(19)(e)l. In addition to the meeting with Mr. Herden and Mr. White, Mr. Wise himself and through his agents have publicly disclosed his Master Development Plans to interested Magnolia residents. David Bechtel, an agent with Randy Wise Homes Realty, LLC, has participated in town hall meetings where the Master Development Plans were presented and discussed in an open forum. Affidavits from residents who attended one of such meetings are attached. In his letter to the County dated November 3, 2015, Jesse Rigby suggests that Mr. Wise had no involvement in the 2013 NOPC Process. That statement is simply false. As evidenced by the attached affidavits, Mr. Wise disclosed to numerous Magnolia residents in 2013 that he intended to purchase the Magnolia 9-hole golf course from BBR and develop the fairways. During a November 2013 meeting with Peter Faerber, Mr. Wise, and others, Mr. Faerber stated Mr. Wise would be the new owner of the Magnolia 9-hole golf course and Mr. Wise would develop the fairways. Mr. Wise held several meetings with Magnolia residents and MPPOA board members to promote his development plans on the Magnolia 9-hole golf course in 2013. Having been directly involved in the 2013 NOPC process, Mr. Wise knew his master development plans were widely objected to by Magnolia residents and were not supported by County staff. Mr. Wise’s current plans for Fairway 4 is only a disingenuous means of disguising the true nature of his overall development plans and is a clear violation of the LDC. Due to Mr. Wise’s public dissemination and promotion of his intended Master Development Plans, the County cannot turn a blind eye to the existence of these development plans. My clients have presented substantial and credible evidence that Mr. Wise has a Master Development Plan, and this plan has not been submitted to the County as required by the LDC. The County is under a duty to require Mr. Wise to submit his Master Development Plan to the County for a full and complete evaluation. Until Mr. Wise presents the Master Development Plan to the County, and County staff conducts a proper review, the pending Application may not be advanced. Mr. John Hofstad Page 3 of 4 II. The Application Cannot be Considered by the BCC Until Vested Rights are Addressed Mr. Herden and the Magnolia residents have vested property rights to ensure the preservation of the Magnolia 9-Hole Golf Course as open space recreational lands. Mr. Wise's Application cannot be advanced to the BCC until these vested rights are addressed. Mr. Herden carefully planned and constructed the Magnolia residential community around the Magnolia 9-hole golf course, lakes, wetlands, and other amenities. Mr. Herden carefully created the Magnolia portion of the Master Land Use Plan Map to ensure that residential units were contained in specifically identified polygons, and that no residential units were assigned to open space recreational lands, including the Magnolia 9-hole golf course. These items were more fully discussed in my letter to the County dated June 12, 2015. Mr. Herden retained vested property rights in the Magnolia 9-hole golf course. Pursuant to the Agreement of Reciprocal Easements and Restrictive Covenants (the “Reciprocal Easements”), Mr. Herden established reciprocal cross easements over the Magnolia 9-hole golf course to prevent such activities as residential development thereon. The Reciprocal Easement sets forth Mr. Herden’s perpetual easement rights, appurtenant to and running with title to each of his Magnolia subdivision developments, which easement rights are over, under, through and across the Magnolia 9-hole golf course. [A complete copy of the Reciprocal Easement was provided to the County in June 2015; attached hereto is page 1 for reference.] BBR benefitted from these cross easements by receiving vested property rights for its golf cart paths and for golfers’ access onto the rear portions of all adjoining private properties. The Magnolia residents and subdivisions who are burdened by the Reciprocal Easement and other covenants and restrictions in favor of BBR were similarly benefitted with vested property rights to have open space recreational lands as depicted in the Magnolia portion of the Master Land Use Plan Map in their planned residential community. I have provided County staff with Florida cases that ratify the existence of vested property rights for property owners in a planned residential community developed under a common scheme. These cases demonstrate that property owners have vested property rights in amenities, such as jogging trails and open space recreational lands, that are depicted in development plans, recorded subdivision plats, recorded covenants and restrictions, and in marketing materials. The Magnolia planned residential community was developed in 1991 under a common scheme of development. The Magnolia portion of the Master Land Use Plan Map depicts the locations and nature of the open space recreational amenities, including the fairways, lakes and other amenities. The recorded subdivision plats (copies of which were provided to the County in June 2015) show each of the Magnolia 9-hole fairways in relation to the Magnolia residential subdivisions. Mr. Herden’s marketing materials depicted the fairways as an integral component of the Magnolia community, copies of which were provided to the County in June 2015. The covenants and restrictions and deed restrictions set forth in the declarations for the Magnolia subdivisions depict the fairways and easement rights. In summary, the Magnolia portion of the Master Development Plan Map sets forth a common scheme of development, which combined with recorded cross easements, plats, covenants and restrictions, created vested property rights for Mr. Herden and the Magnolia residents. The County has no legal authority to advance a development application that will disrupt or interfere with established and recorded vested property rights. As is commonly done by other counties, development applications that interfere with or disrupt established vested property rights of surrounding property owners are referred to the judicial system first for resolution before the development application is approved. Mr. John Hofstad Page 4 of 4 To date, the County failed to address Mr. Herden’s and the Magnolia property owners’ vested property rights and the effect the Application has on these rights. The County’s advancement of the Application to the BCC will likely result in the significant impairment of the above-described vested property rights. My clients request that the County remove the Application from the BCC agenda and require Mr. Wise or BBR to petition a Court of competent jurisdiction to determine their respective rights to amend the Magnolia Master Land Use Plan Map and to redevelop the Magnolia 9-hole golf course. III. Mr. Wise Has No Standing to Amend the Master Land Use Plan Map As the sole developer of the Magnolia planned residential community, Mr. Herden has repeatedly stated that he is the only one who may amend or authorize the amendment of the Magnolia portion of the