Okaloosa County BOCC — November 3, 2015 — CCPA to Stewart - Ltr re Object to Randy Wise Hearing (15-10-29) — reading text

October 29, 2015 VIA EMAIL Mr. Greg Stewart Nabors, Giblin & Nickerson, P.A Okaloosa County Attorney Re: Objection to Scheduling Randy Wise’s Development Application for Fairway 4 - Magnolia Plantation for Hearing; Failure to Timely Produce Public Records and Prejudice to Magnolia Plantation Mr. Stewart, As you are aware, I represent Mr. Raimund Herden in his capacity as the representative of Bluewater Bay Development Corporation (“BBDC”), the developer of Bluewater Bay, and EMCA Forest Investors (“EFI”), the sole developer of Magnolia Plantation. I also represent Magnolia Plantation Property Owners Association (“MPPOA”). BBDC, EFI, and MPPOA object to Randy Wise’s attempts to redevelop the Magnolia Plantation golf course from an open space golf course to residential dwellings. Our objections were previously documented by my letter to Okaloosa County dated June 12, 2015. BBDC, EFI, and MPPOA further object to Okaloosa County and Randy Wise unilaterally setting a December 15, 2015, hearing date before the Okaloosa County Board of County Commissioners (“BCC”) for Randy Wise’s redevelopment application. Although we believe a hearing is not warranted at this time, for the reasons set forth in this letter, any hearing that is set before the BCC must be coordinated with me and my clients to prevent prejudice to my clients’ interests. The fact that Okaloosa County failed to timely produce documents to me has substantially prejudiced my clients ability to defend their interests at a hearing scheduled for December 15, 2015. As I have stated before, Mr. Raimund Herden will be traveling out of the country on December 15, 2015. My experts are not available on such short notice to appear at any hearing in December 2015. I. Procedural History Concerning Randy Wise’s Attempts to Develop Magnolia Plantation Golf Course. In January 2013, Randy Wise Homes and Bluewater Bay Resort (“BBR”) submitted a Notice of Proposed Change (“NOPC”) to develop Fairways 4, 6, 7 and 9 of the Magnolia Plantation golf course. The NOPC contained conceptual plans for the phased development on Fairways 4, 6, 7 and 9. On April 22, 2013, a mere two days before the scheduled BCC hearing to consider the NOPC, Randy Wise and BBR withdrew their application. In April 2015, Randy Wise Homes re-submitted an application to redevelop only Fairway 4 of the Magnolia Plantation golf course. We believe Randy Wise’s application constitutes a deception on the County because Randy Wise intends to proceed with a phased development of Fairways 4, 6, 7, 9, and 1 if he is approved for 238 MIRACLE STRIP PKWY SW (850) 244-0400 FAX (850) 244-4488 FORT WALTON BEACH, FL 32548 (888) 244-4LAW JILL@CREWLAW.COM Mr. Greg Stewart Page 2 of 5 October 29, 2015 Fairway 4. We are aware of this because Randy Wise has disseminated his conceptual development plans to my clients and to other Magnolia Plantation residents in an attempt to gather their support for his Fairway 4 development application. II. Bluewater Bay Residential is Fully Built Out; There are No Residential Entitlements Available for Development in Magnolia Plantation. Mr. Herden has repeatedly stated there are no available residential entitlements in the Bluewater Bay - Development of Regional Impact (“BWB DRI”), as all unused residential entitlements were either relinquished or converted into commercial entitlements. Mr. Herden has stated the only authorized use of the property identified as “G” on the Master Land Use Plan Map for Magnolia Plantation is for open space golf. Mr. Herden further stated that development on the Magnolia Plantation fairways is restricted because of recorded, reciprocal storm water, drainage and utility easements agreed upon by BBR and Mr. Herden. The County determined, after an analysis of the BWB NOPCs and Master Land Use Plan Maps, that the total number of residential units (i.e., entitlements) that are approved to be built in BWB DRI are 3,756. See, Department of Growth Management Letter to Mr. Jesse Rigby, dated July 6, 2015. My clients, in conjunction with assistance from County staff, prepared a thorough analysis of the total number of residential units built in BWB. The total number of residential units built in BWB are 4,090. Attached as Exhibit 1. Because there are no available residential entitlements in BWB, Randy Wise’s development application must be denied by the County, and accordingly, it cannot be heard at a BCC hearing. III. Randy Wise Failed To Disclose His Phased Development Conceptual Plans for Fairways 4, 6, 7, 9 and 1 as Required by the LDC. Chapter 6 of the Okaloosa County Land Development Code requires that a developer submit a conceptual master plan for his entire phased development plan. Where the preliminary plat submitted covers only a part of the total phased development plan, then 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 such development plans will have on traffic, infrastructure, roadways, and drainage systems. Randy Wise has represented to my clients and to numerous Magnolia Plantation residents that once he completes his purchase of the entire Magnolia Plantation golf course from BBR, he will construct a phased development project consisting of residential units and commercial. Randy Wise has presented his master development conceptual plan to my clients. The master development plan shows that in addition to the 21 residential units on Fairway 4, he intends to build (i) cluster homes on Mr. Greg Stewart Page 3 of 5 October 29, 2015 Fairways 6, 7 and 9, (ii) executive homes on Fairway 1, and (iii) commercial, such as boutique stores, in a Town Square on Fairway 7. We have recreated Randy Wise’s master phased development plan from what was presented to my clients and residents, and a copy is attached as Exhibit 2. You will note that Randy Wise’s master phased development plans attached at Exhibit 2 are almost identical to his master development conceptual plans submitted with his 2013 NOPC. Pursuant to the LDC, Randy Wise must provide a copy of the conceptual master development plan in his submittal; Randy Wise’s failure to include the conceptual master plan makes his development application incomplete. IV. Magnolia Plantation Fairways are Authorized in the Development Order as Open Space Golf. As stated in the County’s letter dated July 6, 2015, the Master Land Use Map established the authorized use of the Magnolia Plantation golf course. Mr. Herden specifically restricted the use of the fairways to be open space golf course. Randy Wise has no vested right, either in the original Magnolia Plantation NOPC or subsequent amendments thereto, to construct residential units on land subject to open space, golf course restrictions. See, for example, Ginn-la Marina, LLLP, LTD v. Flagler County, State of Florida Division of Administrative Hearings, Case No. 10-9137DRI. V. Reciprocal Cross Easements on Magnolia Plantation Fairways Ensure Compliance with Master Development Plan in Magnolia Plantation. As discussed in my June 12, 2015 letter, because EFI carefully planned and constructed the Magnolia Plantation residential community around the Nine-Hole golf course, lake and wetlands, EFI recorded certain documents to ensure that there were no changes to the planned community. EFI recorded an Agreement of Reciprocal Easements and Restrictive Covenants (the “Reciprocal Easement”) which benefitted and burdened the golf course, the adjacent residential parcels, and the Magnolia Plantation residential subdivision as a whole. This Reciprocal Easement establishes continuing, legally-enforceable property rights and obligations concerning the Magnolia Plantation golf course, private adjoining parcels, and other property within the Magnolia Plantation subdivision. The County has no legal authority to disrupt the vested property rights in Magnolia Plantation. My clients recommend that the County require Randy Wise to first petition a Court of competent jurisdiction to determine his right to redevelop the Magnolia Plantation golf course in light of the reciprocal cross easements. VI. Failure to Timely Produce Public Records in Response to Records Request Resulted in Prejudice to Magnolia Plantation’s Ability to Respond to Randy Wise’s Pending Development Application. On July 6, 2015, the County informed me and my clients that Randy Wise’s development application would not be presented to the BCC because, among other reasons, there were no residential entitlements left for future construction. Mr. Greg Stewart Page 4 of 5 October 29, 2015 In an abundance of caution to ensure that my clients and I were kept timely informed of all communications, meetings, documents, and potential agreements between the County and Randy Wise, I submitted numerous records requests pursuant to the Florida Public Records Act, Fla. Stat. § 119.01, et seq. I have recently learned (last week) that the County failed to provide me with crucial communications, documents, meeting information, and agreements that transpired between Randy Wise and the County after their last document production on July 9, 2015. In reviewing the communications, it appears that in several instances, I was the only one excluded as a recipient on the communications. Of course, the question my clients have posed to me is why would the County, knowing how committed we are in opposing Randy Wise’s development, fail to update us on the status of events concerning Randy Wise’s development plans, fail to provide us with crucial documents, and fail to notify us that the County and Randy Wise were unilaterally going forward with setting a hearing before the BCC. Regardless of the reason, there has been a violation of the public records act, and the effect has prejudiced my clients’ interests. As far as I am aware, the following documents, communications, and meeting notices were not produced to me contemporaneously, or even reasonably timely, with their origination: July 10, 2015: Compatibility Addendum prepared by Randy Wise’s expert, Mr. Metcalf. August 12, 2015: Calendared documentation re: an August 12, 2015 meeting between Randy Wise, J. Rigby, the County, and the County attorney, to discuss “what needed to be done to move this matter forward to a hearing” before the BCC. September 17, 2015 Letter from J. Rigby to Elliott Kampert discussing their August 12, 2015 meeting, the County’s re-evaluation of residential entitlements, storm water issues, and setting a BCC hearing for October 20, 2015. September 24, 2015: Email from J. Rigby to Mr. Kampert re: their unilaterally setting a BCC hearing as early as October 20, 2015, and discussion regarding updated storm water plans. September 24, 2015: Email from JP Engineering to Mr. Kampert discussing a re-submittal package for Fairway 4 September 24, 2015: Email from Mr. Kampert to Randy Wise and J.Rigby about their unilateral attempts to set a BCC hearing. September 24, 2015: Email from J.Rigby to Mr. Kampert re: delivery of stormwater and engineering plans, and going forward with BCC hearing. (note that J. Rigby makes a point to state that he needs advance notice to schedule his experts for the hearing.) September 25, 2015: Email from Mr. Kampert to J.Rigby re: responses to J.Rigby’s questions and setting BCC hearing. September 29, 2015: Email from J.Rigby to Mr. Kampert re: setting the BCC