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RESOLUTION NO. 2010- 038
<br />A RESOLUTION APPROVING THE SETTLEMENT OF A LAWSUIT
<br />AND CLAIMS RELATING TO WATERWAY VILLAGE, A
<br />DEVELOPMENT OF REGIONAL IMPACT, INCLUDING, WITHOUT
<br />LIMITATION, CLAIMS UNDER THE BERT J. HARRIS, JR., PRIVATE
<br />PROPERTY RIGHTS PROTECTION ACT; MAKING CERTAIN
<br />FINDINGS; APPROVING SETTLEMENT DOCUMENTS; AND PRO-
<br />VIDING FOR AN EFFECTIVE DATE UPON COURT APPROVAL.
<br />WHEREAS, on November 9, 2004, the Board of County Commissioners adopted
<br />Resolution 2004-137 constituting a Development Order ("Development Order") pertaining to
<br />Waterway Village, a Development of Regional Impact ("Waterway Village"); and on December
<br />13, 2005, the Board entered into a Developer's Agreement with DiVosta Homes L.P.
<br />("DiVosta") relating to Waterway Village ("Developer's Agreement"); and
<br />WHEREAS, a dispute subsequently arose between Indian River County and DiVosta
<br />relating to concurrency for Waterway Village. Specifically, Indian River County took the
<br />position that all "development orders" and "development permits" as defined in §163.3164(7)
<br />and (8), Florida Statutes, were subject to the concurrency testing requirements of §163.3180,
<br />Florida Statutes, and therefore each new phase of Waterway Village was required to be tested for
<br />concurrency prior to approval of such phase. DiVosta disagreed and took the position that
<br />Waterway Village was vested for concurrency in its entirety, pursuant to § 163.3167(8), Florida
<br />Statutes, and §910.03(5) of the IRC Land Development Regulations (Concurrency Management
<br />System); and
<br />WHEREAS, as a result of the aforesaid dispute, DiVosta (1) filed a complaint in the
<br />Circuit Court, Indian River County, Florida, styled DiVosta Homes, L.P., et al. v. Indian River
<br />County, Florida, case #20070109 CA 19, seeking, among other things, a declaration that
<br />Waterway Village is vested for concurrency in its entirety ("Lawsuit"), and (2) presented a claim
<br />to Indian River County under the Bert J. Harris, Jr., Private Property Rights Protection Act,
<br />§70.001, Florida Statutes ("Bert Harris Claim") (collectively "Claims"); and
<br />WHEREAS, the parties have reached a settlement of the Claims, as set forth in the
<br />Settlement Agreement attached hereto as Exhibit "A", in amendments to the Development Order,
<br />as set forth in the Amended and Restated Development Order, Resolution 2010- 037 , and in
<br />amendments to the Developer's Agreement as set forth in the Amended Developer's Agreement,
<br />which amended order and agreement are attached as Exhibits A and B to the Settlement
<br />Agreement (collectively "Settlement" or "Settlement Documents"); and
<br />WHEREAS, the Board has determined that the Settlement is in the best interests of the
<br />citizens of Indian River County, Florida, and protects the public interest served by the statutes
<br />and regulations at issue, and should therefore be approved.
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