HomeMy Public PortalAbout2022-11 Approving a settlement agreement with James F. LeachRE S O L U T IO N N O . 2 0 2 2 -11
A RE S O L U T I O N O F T H E V IL L A G E C O UN C IL O F T H E
V IL L A G E O F K E Y B I S C A YN E , F L O RI D A , A P P R O V IN G A
S E T T L E M E N T A G RE E M E N T W IT H J A M E S F . L E A C H ,
C E L L C O P A R T N E R S H IP D /B /A V E RI Z O N W IRE L E S S ,
A N D T -M O B IL E S O U T H , L L C RE L A T IN G T O T H E
D E N IA L O F A N A D M IN IS T RA T IV E A P P E A L O F T H E
IN S T A L L A T I O N O F C E R T A IN C E L L U L A R E Q U IP M E N T
O N T H E R O O F O F T H E C A P E F L O RI D A C L U B
C O N D O M IN IU M L O C A T E D A T 2 10 S E A V IE W D RI V E ;
P R O V ID IN G F O R A U T H O RI Z A T IO N ; A N D P R O V ID IN G
F O R A N E F F E C T IV E D A T E .
W H E RE A S , on June 3, 2021, James F. Leach ("Mr. Leach") filed a Petition for Writ of
Certiorari in an appeal captioned as James F. Leach vs. Village of Key Biscayne, Miami-Dade
County Case No. 2021-26-AP-01 (the "Appeal"); and
WHEREAS, the Appeal relates to the denial of an administrative appeal challenging
building permits issued by the Village administration to Cellco Partnership d/b/a Verizon Wireless
and T-Mobile South, LLC for the installation of certain cellular equipment on the roof of the Cape
Florida Club Condominium located at 210 Seaview Drive, Key Biscayne, Florida 33149; and
WHEREAS, in an effort to avoid the uncertainty and expense of continued and protracted
litigation, the Village finds that it is in the best interest and welfare of the public to enter into a
Settlement Agreement, in substantially the form attached hereto as Exhibit "A" (the "Settlement
Agreement"), with the intent to resolve all claims or potential claims between the Village and Mr.
Leach, including claims that were or could have been raised in the Appeal; and
WHEREAS, the Village Council finds that this Resolution is in the best interest and
welfare of the residents of the Village.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:
Page I of2
Section 1. Recitals. That each of the above-stated recitals are hereby adopted,
confirmed, and incorporated herein.
Section 2. Approving Settlement Agreement. That the Village Council hereby
approves the Settlement Agreement in substantially the form attached hereto as Exhibit "A."
Section 3. Authorization~ That the Village Manager is authorized to execute the
Settlement Agreement in substantially the form attached hereto as Exhibit "A," and all documents
deemed necessary to implement the intent of this Resolution, subject to approval by the Village
Attorney as to form, content, and legal sufficiency, and to take such other action as may be
necessary and appropriate to implement the terms of the Settlement Agreement and this
Resolution.
Section 4.
adoption.
Effective Date. That this Resolution shall be effective immediately upon
PASSED and ADOPTED this 8th day of _=M=ar=c=h~------' 2022.
ATTEST:
APPROVED AS TO FORM AND LEGAL SUFFICIENCY:
WEISS SEROTA HELFMAN COLE & BIERMAN, P.L.
VILLAGE ATTORNEY
Page 2 of2
EXHIBIT "A"
SETTLEMENT AGREEMENT
THIS Settlement Agreement ("Agreement") is dated March _8___, 2022, and is by and
between James F. Leach ("Mr. Leach"), the Village of Key Biscayne (the "Village"), Cellco
Partnership d/b/a Verizon Wireless ("Verizon") and T-Mobile South, LLC ("T-Mobile")
collectively referred to as the "Cellular Companies," and all of the foregoing are collectively
referred to herein as the "Parties."
RECITALS:
A. Mr. Leach owns certain real property within the Village located at 789 Crandon
Boulevard, Unit No. 701, Key Biscayne, Florida 33149 (the "Leach Unit").
B. In the fall of 2018, the Village issued building permits authorizing the Cellular
Companies to install certain cellular equipment on the roof of the Cape Florida Club Condominium
located at 210 Seaview Drive, Key Biscayne, Florida 33149 (the "Cellular Equipment"). Mr.
Leach through counsel initiated an administrative appeal with the Village seeking rendition of an
appealable decision and authorization to have a substantive appeal of the Village's authorization
of the Cellular Equipment. The Village administration denied this request as untimely, and that
denial was appealed to the Village Council. The item was heard by the Village Council on April
27, 2021. On May 4, 2021, the City Council issued Resolution No. 2021-22 upholding the
determination of the Village administration that the appeal by Mr. Leach was untimely.
C. Mr. Leach through counsel thereafter filed that certain Petition for Writ of
Certiorari (the "Petition") with the Circuit Court of the Eleventh Judicial Circuit in and for Miami-
Dade County, Florida (the "Court"), with Case No. 2021-26-AP-01 (the "Proceeding"), pursuant
to which Mr. Leach has requested the Court to review and quash Resolution No. 2021-22. The
Village is the named respondent in that action, and the Court has granted intervention to the
Cellular Companies.
D. The Village and the Cellular Companies disagree with Mr. Leach's arguments
challenging Resolution No. 2021-22 as set forth in his Petition.
E. The Parties desire to settle their disputes over the Cellular Equipment and all related
matters on the terms and conditions hereinafter set forth.
AGREEMENTS:
NOW THEREFORE, in consideration of the sum of Ten Dollars ($10.00), the mutual
promises, covenants and undertakings provided herein, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Staff Memoranda. The Village has issued two memoranda, dated February 2, 2022,
which explicitly provide that removal of the decorative or shielding panels from the installed
Cellular Equipment is consistent with and in compliance with the Village's Code and
requirements. The two Staff memoranda are attached hereto as Composite Exhibit A.
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2. V ill age C ouncil A ppro v al. T he term s and substance of this A greem ent are set to
be con sidered as a C onsent A genda Item at the R egular C ouncil M eeting of the V illage C oun cil
on M arch 8, 2022. If the V ill age C ouncil appro ves this A gr eem ent, it w ill do so by R esolu tion of
the V ill age C ouncil au thorizing the V ill age M anager to execute this A greem ent (hereinafter, the
"R esolution").
3. Signatu re D eadline. T he V ill age agrees to have this A gr eem ent execu ted no later
than fi ve business days after the date of the signed R esolution authorizing sam e.
4. E ffective D ate. T he E ffective D ate of this A greem ent is strictly defi n ed herein as
that date upon w hich all of the fo ll ow in g is satisfi ed and has occurr ed : (a) thirty-one days fr om
the date that the R esolution is signed and on fi le w ith the V illage C lerk; and (b) as of that date, no
adm inistra tive appeal or legal appeal of the R esolution has been lodged by any person or party;
and ( c) the A greem ent refl ects the execution and signatu res of all P arties. T he E ffective D ate is
not established and this A greem ent is void and w ithout legal effect in the event that any of the
fo llow ing occur : (a) the V illage C ouncil's review and appro val of this A greem ent on M arch 8,
2022 is continued or cancell ed; or (b) the V ill age C ouncil does not appro ve this A greem ent at the
M arch 8, 2022 m eeting; or (c) the V ill age C ouncil's appro val otherw ise fa ils on M arch 8, 2022 ;
or ( d) any person or patty lodges an adm inistra tive or legal appeal of the R esolution w ithin thirty
days that the R esolution is signed and on fi le w ith the V ill age C lerk.
5. A ppell ate C ourt A batem ent. If the R esolution is duly appro ved by the C ouncil as
contem plated herein , the Part ies shall jo intl y fi le prior to M arch 25, 2022 a request w ith the C ourt
fo r an additional fi fteen-day abatem ent period to allow the E ffective D ate to m atu re as set fo rt h in
P aragra ph N o. 3, abov e. N othing herein shall change or im pair M r. L each 's ability to fi le a notice
of voluntary dism issal of the appeal at any tim e as authorized by the F lorida R ules of A ppell ate
P ro cedur e.
6. A ppeal D ism issal. A s soon as is pra cticable after the E ffective D ate, but in no event
no later than fi ve business days after the E ffective D ate, M r. L each shall voluntarily dism iss the
P etition in its entirety, as to both the V ill age and both of the C ellular C om panies, w ith each P art y
to bear their ow n fe es and costs.
7. P erm itting Schedule and M ethod . Im m ediately after the fi ling of the N otice of
V oluntary D ism issal by M r. L each, the V ill age and the C ellular C om panies shall fi nalize
perm itting details and perm it authorizations as set fo rth below . T he perm itt ing authorization tasks
in this P ara gra ph (2) sh all be com pleted no later than thirt y (30) days fr om the date of the fi ling of
the N otice of V oluntary D ism issal w ith the C ourt by M r. L each.
(a) C lose E xisting P erm it by V erizon . V erizon shall arr ange fo r inspection w ith the
V illage to cl ose their previously issued perm it and sim u lt aneou sly subm it an application
fo r a new perm it, as described in subpara gra ph (c) below .
(b) C lose E xistin g P e1m it by T -M obile. T -M obile shall take the step s necessary fo r the
V ill age to cl ose the previously issued P erm it and sim ult aneou sly subm it an application fo r
a new perm it, as described in subpara gr aph ( c) below .
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(c ) Is s u a n c e o f N e w P e r m its to C e ll u la r C o m p a n ie s . T h e V ill a g e h a s is su e d S ta ff
M e m o ra n d a , d a te d F e b ru a r y 2 , 2 0 2 2 , w h ic h e x p lic itl y p ro v id e th a t r e m o v a l o f th e d e c o ra tiv e o r
s h ie ld in g p a n e ls fr o m th e in s ta ll e d C e ll u la r E q u ip m e n t is c o n s is te n t w ith a n d in c o m p lia n c e w ith
th e V ill a g e 's C o d e a n d r e q u ir e m e n ts . T h e C e ll u la r C o m p a n ie s sh a ll a p p ly to th e V ill a g e fo r
b u ild in g p e rm it a u th o r iz a tio n to r e m o v e th e d e c o ra tiv e o r sh ie ld in g p a n e ls p re s e n tl y in s ta ll e d
a ro u n d th e C e ll u la r E q u ip m e n t (th e "M itig a tio n W o r k ").
(d ) C o m p le tio n o f M itig a tio n W o r k. T h e C e ll u la r C o m p a n ie s sh a ll tim e ly u n d e rta k e
a n d c o m p le te th e M itig a tio n W o r k a s so o n a s is p ra c tic a b le , a n d in a n y e v e n t sh a ll c o m p le te th e
M itig a tio n W o r k n o la te r th a n th irt y (3 0 ) d a y s fr o m th e d a te th a t th e V illa g e p e rm ittin g is fi n a liz e d .
8 . T h e s c o p e o f th e M itig a tio n W o r k a g r e e d to b y V e r iz o n is th e re m o v a l o f th e
d e c o ra tiv e o r s h ie ld in g p a n e ls a ro u n d its C e ll u la r E q u ip m e n t
9 . T h e s c o p e o f th e M itig a tio n W o r k a g r e e d to b y T -M o b ile is th e re m o v a l o f th e
d e c o ra tiv e o r s h ie ld in g p a n e ls a ro u n d its C e ll u la r E q u ip m e n t.
10 . T h e M itig a tio n W o r k to b e p e r fo rm e d b y th e C e ll u la r C o m p a n ie s sh a 11 b e in
c o n fo rm ity w ith th e p e rm itt in g a u th o r iz a tio n s im p o s e d b y th e V ill a g e a n d sh a ll b e su bje c t to th e
s ta n d a r d V i11 a g e p e rm ittin g a n d in s p e c tio n p ro c e d u r e s . T h e V ill a g e sh a 11 u n d e rt a k e in sp e c tio n s
a n d o th e rw is e b e a r th e r e s p o n s ib ili ty o f c o n fi rm in g th a t th e M itig a tio n W o r k is p e r fo rm e d b y th e
C e ll u la r C o m p a n ie s in a c c o r d a n c e w ith th is A g r e e m e n t a n d th e V ill a g e 's C o d e a n d p e rm itt in g
r e q u ir e m e n ts .
11. The Parties understand and agree that this Agreement is in compromise of disputed
claims and is not to be construed as an admission on the part of any Party or any other person, firm
or corporation.
12. The agreements set forth herein shall be governed by and interpreted under the
applicable laws of the State of Florida, without regard to any conflicts of law principles. This
Agreement contains the entire agreement of the Parties with respect to the subject matter
hereof. This Agreement may be modified only in writing, signed by both Parties. Each Party
shall be responsible for its own attorneys' fees and expenses incurred in connection with the
Proceeding and the negotiation of this Agreement.
13. This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
Counterparts may be delivered via facsimile, electronic mail, and may feature electronic signatures
or other transmission method and any counterpart so delivered shall be deemed to have been duly
and validly delivered and be valid and effective for all purposes.
14. If any provision in this Agreement shall be held to be invalid, illegal or
unenforceable, the legality, validity and enforceability of the remaining parts, terms or provisions
shall not be affected and the illegal, invalid or unenforceable part or term of the provision shall be
deemed not to be part of this Agreement provided that such illegal, invalid or unenforceable part
does not affect the contemplated purposes of this Agreement.
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15. The Parties hereby acknowledge that the obligations required hereunder are
extraordinary and unique and are vital to the parties and that damages at law would be an
inadequate remedy for any breach or threatened breach of this Agreement by any Party. Therefore,
in the event of a breach or a threatened breach by any Party of any provision of this Agreement,
the other Party shall be entitled, in addition to all other rights or remedies to which it is entitled, to
an injunction restraining such breach, without being required to show any actual damage or to post
any bond or other security.
16. Except as otherwise expressly provided herein, no remedy herein conferred upon
any Party is intended to be exclusive of any other remedy, and each and every such remedy shall
be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise. No single or partial exercise by any Party
of any right or remedy hereunder shall preclude any other or further exercise of such right or any
other right or remedy to which such Party is entitled.
17. This Agreement cannot be modified in any respect except by a writing executed by
the Parties, and the waiver of any rights conferred here shall be effective only if made by written
instrnment of the waiving Party. The waiver by any Party of any breach of this Agreement shall
not be deemed or construed as a waiver of any other breach, whether prior, subsequent, or
contemporaneous. A signed copy of this Agreement delivered by facsimile, email, or other means
of electronic transmission shall be deemed to have the same legal effect as delivery of an original.
18. Neither this Agreement nor its terms and provisions, nor the existence or substance
of any discussions leading up to this Agreement, shall be disclosed by any Party to any person or
entity who is not a party to this Agreement. Notwithstanding the foregoing sentence, no Party shall
be precluded from disclosing this Agreement or its terms and provisions: (a) for the limited purpose
of enforcing the terms of the Agreement or resolving a dispute arising under the terms of this
Agreement; or (b) as may be required by applicable law or regulation.
The Village of Key Biscayne
Signature: _
Name: -------------
Title: -------------
Date: -------------
4
James F. Leach
Signature: _
Date: -------------
Cellco Partnership d/b/a Verizon Wireless
Signature: _
Name: -------------
Title: -------------
Date: -------------
T-Mobile South, LLC
Signature: _
Name: -------------
Title: -------------
Date: -------------
5
Composite Exhibit A
6
D e p a r t m e n t o f B u il d i n g , Z o n i n g , a n d P l a n n i n g
Village Council
Michael W. Davey, Mayor
Brett Moss, Vice Mayor
Frank Caplan
Luis Lauredo
Edward London
Allison McC01midc
Ignacio J. Segurola
Village Manager
Steven C. Williamson
Director
Jeremy Calleros-Gauger
Chief Building Official
Rene Velazco, CFM
Febru ary 2, 2022
R E: Verizon and T-M obile A ntennas at 210 Seaview Drive, Key Biscayne, FL 33149
A s per the V illage of Key Biscayne's Accessory Use Regulations under Section 30-
l l l (a)(4) (vthe C ode), the intent of the Village is that the necessary safeguards will be
pro vided fo r the pro tection of surrounding pro perty, persons, and neighbor hood values and
thereby pro m ote the health, safe ty, and genera l welfare of the com m unity.
Based on the photo sim ulations pro vided for both the Verizon and T-M obile antennas,
the rem oval of the panels curr ently surr ounding the antennas and equipm ent are depicted (sec
attached). Therefo re, the rem oval of the panels does not appear w ill adversely affect the
existing chara cter of the surrounding area and will in fact allow the antennas to blend into
the sky and rem ain consistent with the Code.
If you have any questions regarding this determ ination, please feel free to contact m e anytim e
at (305) 365-5502 or via em ail at O!.Wrcia(111kcvbiscavne.tl.f2.t)\'.
O lga M . Garcia, A I P, CFM
Zoning Plans R eview er and Planner
XX West Mcl utyrc StTL'L'l • Key Hiscayuc. l-Iorid« JJ l➔CJ • (.1(15) 3h5-55 I I • www.kcybiscuvnc.fl.gov
\IIS'\l<l'-'1\rl~ll"\.I l(ll'\H )\.1111 \"-,\fl f)l \lll)~O\l\tl·:"'\ll'il,~lf{t)"\.\ll:",lllll~\llh l\'-IJll~"-llrH,llc,lll{l·'"',l'()i\....,llllll,()\,li.:.'.~ll,1
Leach v. Key Biscayne
68597 Cape Florida Club Photosim
Site Location - 210 Seaview Dr., Key Biscayne, FL 33149
Location Map
50 100
SCALE FEET
verlzorr/ CBY(I
TELECOM DESIGN GROUP
Leach v. Key Biscayne
68597 Cape Florida Club Photosim
Site Location - 210 Seaview Dr., Key Biscayne, FL 33149
View of Existing Verizon Wireless Rooftop Antennas Behind Screen Walls
(Looking Southwest from Club tower One Condo Unit 701 Window )
View of Existing Verizon Wireless Rooftop Antennas with Screen Walls Removed
(Looking Southwest from Club tower One Condo Unit 701 Window)
ve rizon✓ TELECOM DESIGN GROUP
T -M O B IL E S IT E 6 M D 1 3 5 1 C
CAPE FLORIDA CLUB
210 SEAVIEW DRIVE, KEY BISCAYNE, FL 33149
VIEW: BEFORE
VIEW: AFTER
~ · -Mobile- m·
MORRISON HERSHFIELD
2 S outh U niversity D rive, Suite 245 I Plantation, FL 33324
'V J :L L A ,G E
Department of Building, Zoning, and Planning
Village Council
Michael W. Davey, Mayor
Brett Moss, Vice Mayor
Frank Caplan
Luis Lauredo
Edward London
Allison McConnick
Ignacio J. Segurola
Village Manager
Steven C Williamson
Director
Jeremy Calleros-Gauger
Chief Building Official
Rene Velazco, CFM
February 2, 2022
RE: T-Mobile Antenna at 210 Sea view Drive, Key Biscayne, FL 33149
As per the Village of Key Biscayne's Accessory Use Regulations under Section 30-
1 I I (a)( 4) (vthe Code), the intent of the Village is that the necessary safeguards wi II be provided
for the protection of surrounding property, persons, and neighborhood values and thereby
promote the health, safety, and general welfare of the community.
Based on the photo simulations provided for the T-Mobile antennas, the removal of the
panels currently surrounding the antenna and equipment are depicted (see attached). Therefore,
the removal of the panels does not appear will adversely affect the existing character of the
surrounding area and will in fact allow the antennas to blend into the sky and remain consistent
with the Code.
However, please note that the T-Mobile exoskeleton exceeds the maximum height required
and must be lowered prior to the building permit being final and closed.
If you have any questions regarding this determination, please feel free to contact me anytime
at (305) 365-5502 or via email at ngarcia(ilkcvbiscaync.fl.!..!.ov.
~- Olga M. Garcia, AICP, CFM
Zoning Plans Reviewer and Planner
K~ W est M cl ntvrc Street • Key Biscayne. ll orid« .n 141J • (3115) 3h5-.:'i.:'i 11 • www.kc~1hiscay11c.fl.g11v
\11..._.._,,u~"l\ll.\ll'I l()t'l~()\11)1 \._,\f l (JI \ltl,(11\1\ltt'\,Jl'i 1'-\.11:t>,\ll·'l lt>I{ \II 1,1 \'-IHl..:."IJIH<ll<tlfl~l._,Pt1.',"',lilfl <,fl \,Jl~'-\ll·'-1
T -M O B IL E S IT E 6 M D 1 3 5 1 C
CAPE FLORIDA CLUB
210 SEAVIEW DRIVE, KEY BISCAYNE, FL 33149
/ Existing~obile FRP s:e:n w_a_1_1 _
VIEW: BEFORE
VIEW: AFTER
~ · -Mobile- m·
MORRISON HERSHFIELD
2 South University Drive, Suite 245 I Plantation, FL 33324