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Consent Agenda 9/9/14 <br />Office of <br />INDIAN RIVER COUNTY <br />ATTORNEY <br />Dylan Reingold, County Attorney <br />William K. DeBraal, Deputy County Attorney <br />Kate Pingolt Cotner, Assistant County Attorney <br />TO: <br />FROM: <br />DATE: <br />SUBJECT: <br />MEMORANDUM <br />Board of County Commissioners <br />William K. DeBraal, Deputy County Attorney <br />September 2, 2014 <br />Cancellation of Agreement for Reservation of Right-of-way for <br />NYLACARB Corporation <br />NYLACARB Corporation (NYLACARB) and Indian River County (County) entered into an <br />Agreement for Reservation for Road Right -of -Way (Agreement) dated March 15, 1988. <br />The Agreement was made a condition of NYLACARB's site plan approval back in 1988. <br />In exchange for site plan approval, NYLACARB agreed to refrain from improving a 29 foot <br />wide setback of their property abutting 98th Avenue. They further agreed to sell this <br />property to the County if and when the County widened 98th Avenue at some point in the <br />future. There was no expiration date specified in the Agreement. Right-of-way <br />reservations were common tools used to secure right-of-way for future road expansion <br />without expending the funds to purchase the future right-of-way. Since that time, the <br />courts have ruled right-of-way reservations are the equivalent of a taking while avoiding <br />the eminent domain process. The courts have held these right-of-way reservation <br />agreements are illegal as almost all use of the property by the owner is prohibited under <br />the terms of the agreement. <br />The dimensions of 98th Avenue have not changed in the 26 years following NYLACARB's <br />site plan approval. Expansion of 98th Avenue is not included in any future plans including <br />the County's 2035 long range plan. Thus, since the County has no plans to expand 98th <br />Avenue in the next 21 years, staff is of the opinion the Agreement for Road Right -of -Way <br />Reservation should be terminated. The attached agreement between NYLACARB and <br />the County revokes all reservations and covenants contained in the original Agreement. <br />COUNTY ATTORNEY <br />ladies River Cs. <br />Admin. <br />Co. Atty. <br />red <br />Date <br />aamiurelimg'ra <br />mais <br />Dept. <br />Pk� <br />.-3-/ <br />39 <br />