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eFile Accepted: 04/16/2014 01:42 PM
Filing # 12565369 Electronically Filed 04/16/2014 11:10:38 AM
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA, COUNTY, FLORIDA
McCANN HOLDINGS, LTD.,
Plaintiff,
Vv. Case No. 2011CA003897NC
SDC COMMUNITIES, INC., JURY TRIAL DEMANDED
VOTT-A, LLC, VOTT-B, LLC,
VOTT-C, LLC, VOTT-D, LLC,
HENRY RODRIGUEZ, and
RANDALL BENDERSON,
Defendants.
/
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff, McCann Holdings, Ltd. (“McCann”), pursuant to Fla.
R. Civ. P. 1.510, files this Motion for Summary Judgment as to the
following issues because the pleadings, depositions, affidavits
and documents on file in this action show that there are no
genuine issues of material fact and that McCann is entitled to
judgment as a matter of law. The grounds upon which this Motion
is based and the substantial matters of law to be argued are set
forth below.
Ir. BACKGROUND & UNDISPUTED FACTS
A. The Energy Economic Zone
Laws of Florida, Chapter 2009-89 became effective May 2/7,
2009. Section 7 of Chapter 2009-89 established “an Energy
Economic Zone Pilot Program for the purpose of developing a model
to help communities cultivate green economic development,encourage renewable electric energy generation, manufacture
projects that contribute to energy conservation and green jobs and
further implement Chapter 2008-191 Laws of Florida, relative to
discouraging sprawl and developing energy-efficient land use
patterns and greenhouse gas reduction strategies.” Ch. 2009-89, §
—_
7, Laws of Fla. Chapter 2009-89 also provided a mechanism for
applications for inclusion in the Pilot Program. Id. In July of
2009, Sarasota County submitted its application, which included
within the boundaries of its proposed Energy Economic Zone (“EEZ”)
a parcel of property owned by McCann.
Thereafter, the Department of Community Affairs of the State
of Florida (‘DCA”)* announced the designation of the City of Miami
Ww
Beach and Sarasota County as “Energy Economic Zone Pilot Program
Communities.” To participate in the Pilot Program, Sarasota
County was required to, among other things, initiate an Amendment
to its Comprehensive Plan in order to ensure that the
Comprehensive Plan contains strategies related to key EEZ program
requirements, including a strategic plan that includes mixed-use
development and form-based development standards. see, S
377.809(2), Fla. Stat. (2009).
' The DCA no longer exists and has been replaced by the Department of
Economic Opportunity as the “state land planning agency.” S 163.3164, Fla.
Stat.
2B. Comprehensive Plan Amendment 2010-02-E
Based upon the EEZ program requirements, Sarasota County
initiated Comprehensive Plan Amendment 2010-02-E related to the
PEL (“Amendment”) after a eseries of workshops, meetings and
reports. The purpose of the Amendment was to amend the Sarasota
County Comprehensive Plan to: (a) add a new section describing an
Energy Economic Zone under Future Land Use Goal 2; and (b) add a
new Special Planning Area 4 under Future Land Use Goal 5.
Pursuant to the Amendment, Special Planning Area 4 was further
divided as follows:
1. Sub-Planning Area 1, comprised of a 680 acre parcel of
property owned by McCann‘; and
2. Sub-Planning Area 2, comprised of approximately 220
acres of property owned by Defendants, VOTT-A, LLC,
VOTT-B, LLC, VOTT-C, LLC and VOTT-D, LLC (collectively,
“VOTT”) and SDC Communities, Inc. (“SDC”) .°
To achieve a better jobs and housing balance and ensure that
the Comprehensive Plan contains strategies consistent with key EEZ
program requirements, the Amendment sought to re-designate the
land use designations on McCann’s “Area 1” property to include the
following:
2 McCann’s “Area 1” property iS currently designated under the
Comprehensive Plan as Moderate Density Residential (>2 and <5 dwelling units per
acre) and zoned for agricultural use.
> SDC has since sold its Area 2 property.
31. 1.5 million square feet of Major Employment Center (280
acres);
2. 250,000 square feet of Village 1 commercial (40 acres),
allowing for up to 125,000 square feet of commercial use
om
and 125,000 square feet of office use; and
3. 1,900 (mixed) residential units (360 acres).
In addition, certain “Financial Incentives” and “Regulatory
7
Incentives,” to be determined at a later date, would be available
to McCann’s “Area 1” property as well as to all other properties
within the EEZ.
1. May 20, 2010/June 3, 2010 Planning Commission Hearings
On May 20, 2010, a public Planning Commission hearing was
held to discuss and obtain public input on the Amendment. Facing
varying degrees of support and opposition from various individuals
and interest groups, the Planning Commission closed the public
pine ttt
input portion of the public hearing, requested staff to bring back
modifications to the Amendment and continued the public hearing to
June 3, 2010. On June 3, 2010, following the close of the
continued public hearing, the Planning Commission voted to
transmit the Amendment, as revised by staff, to the Sarasota
County Board of County Commissioners (“BCC”) with a recommendation
for approval.A public transmittal hearing regarding the Amendment was
—_
scheduled to be held before the Sarasota County Board of County
Commissioners (“BCC”) on June 23, 2010.
2. June 23, 2010/July 13, 2010 BCC Transmittal Hearings
On June 23, 2010, the BCC held a public hearing to consider,
among other things, the transmittal of the Amendment to DCA.
During the public input portion of the hearing, the BCC heard both
support for and opposition against the Amendment. Thereafter, the
BCC discussed the Amendment, voted to immediately make certain
revisions to the Amendment based upon the EEZ Joint Cooperation
Agreement entered into by and between McCann and VOTT’, instructed
the County Administrator to make certain additional revisions to
the language of the Amendment based upon concerns raised by other
members of the public and continued the transmittal hearing to
July 13, 2010. At the July 13, 2010 public hearing, the BCC voted
unanimously to approve the Amendment and transmit it to DCA for
review and comment.
3. DCA Objections, Recommendations and Comments Report
The DCA reviewed the proposed Amendment and, in response,
Submitted its objections, recommendations and comments report
(“ORC Report”) to Sarasota County on September 17, 2010. The
transmittal letter from the DCA advised as follows:
“These revisions related to the restrictions and limitations on the
density/intensity of use on McCann’s “Area 1” property contained within the
Joint Cooperation Agreement.
5Within the next 60 days, the County should act by
choosing to adopt, adopt with changes or not adopt the
proposed amendments. For your assistance, our report
outlines procedures for the final adoption and
transmittal.
The Transmittal Procedures attached to the foregoing
transmittal letter advised, in relevant part, as follows:
Upon receipt of this letter, the County has 60 days in
which to adopt, adopt with changes, or determine that
the County will not adopt the proposed amendment. The
process for adoption of local comprehensive plan
amendments is outlined in s. 163.3184, Florida Statutes,
and Rule 9J-11.011, Florida Administrative Code.
In response to the ORC Report, the staff for Sarasota County
submitted an Amended Staff Report to the BCC for its consideration
at a public adoption hearing scheduled for October 26, 2010. In
its Amended Report, County Staff again recommended approval of the
Amendment:
STAFF RECOMMENDATION: Staff recommends approval of
Comprehensive Plan Amendment 2010-02-E. This amendment
furthers reduction in greenhouse gaS emissions and
planning reguirements of Florida statute, as well as
steps needed to meet Goals 2 and 5 in the Future Land
Use Chapter of the Sarasota County Comprehensive Plan.
Staff requests that the Department of Community Affairs
issue a Notice of Intent (NOI) fanding the Amendment
consistent with the Sarasota County Comprehensive Plan
and Florida State Statutes.
4, October 26, 2010 BCC Adoption Hearing
At the October 26, 2010 BCC hearing, despite the staff
recommendation, the BCC unanimously voted to “defer” adoption of
the Amendment “to the next Comprehensive Plan Amendment Cycle”(1.e., sometime in 2011).° The BCC also directed the County
Administrator to “work with the stakeholders and to bring back a
progress report to the Board by January 15, 2011.”
On November 1, 2010, acting on behalf of the BCC, the
Sarasota County Director of Planning Operations, Tom Polk, sent a
transmittal letter to DCA transmitting the comprehensive plan
amendments that the BCC had adopted during the Z2ZQ010-02
Comprehensive Plan Amendment Cycle. With respect to the
Amendment, Mr. Polk stated as follows:
It should be noted that during deliberations, the Board
of County Commissioners chose not to adopt amendment
2010-O02-E and instead moved it into the 2011-01 cycle of
amendments for further refinement.
No further action was ever taken on the Amendment, and the
Amendment waS never transmitted to DCA for its review and
approval.
II. ISSUES FOR SUMMARY JUDGMENT
A. The Amendment has expired and is no longer viable.
S 163.3184, Fla. Stat. states, in relevant part:
The local government shall review the written comments
Submitted to it by the state land planning agency, and
any other person, agency, or government...iIn the case of
comprehensive plan amendments other than those proposed
pursuant to s. 163.3191, the local government shall have
> In addition to the Amendment, six other comprehensive plan amendments
(2010-02-A, 2010-02-B, 2010-02-C, 2010-02-E, 2010-02-F and 2010-02-G) were
proposed and considered by the BCC during the 2010-02 Comprehensive Plan
Amendment Cycle. All six of these proposed comprehensive plan amendments were
adopted by the BCC and transmitted to DCA for compliance review. Said
differently, out of 7 comprehensive plan amendments proposed during this cycle,
2010-02-E was the only proposed amendment that the BCC did not adopt.
760 days to adopt the amendment, adopt the amendment with
changes, or determine that it will not adopt the
amendment...
§ 163.3184(7) (a), Fla. Stat. (2010).° See also, Martin County v.
Yusem, 690 So.2d 1288, 1294 (Fla. 1997) (“At this point [after
receiving an ORC report from DCA], the local government has three
options: (1) adopt the amendment; (2) adopt the amendment with
changes; or (3) not adopt the amendment.”)
Similarly, Rule 9J-11.011 of the Florida Administrative Code
provides, in relevant part:
...-in the case of a proposed amendment other than those
submitted pursuant to Section 163.3191, F.S., the local
government has 60 calendar days to adopt, adopt with
changes, or not adopt the proposed amendment after
receipt of the objections, recommendations and comments
report from the Department pursuant to Section
163.3184(7) (a), F.S.
Fla. Admin. Code R. 9J-11.011(3) (2010). Rule 9J-11.011 goes on to
state:
In the case where the local government makes’ the
determination not to adopt a proposed plan amendment, a
letter must be sent to the Department within five
working days to inform the Department of this decision.
This letter shall be sent to the Florida Department of
Community Affairs, Division of Community Planning, Plan
Processing Team.
Effective June 2, 2011, $ 163.3184 was amended to state, in relevant
part, that “if the local government fails, within 180 days after receipt of
agency comments, to hold the second public hearing, the amendments shall be
deemed withdrawn unless extended by agreement with notice to the state land
planning agency and any affected person that provided comments on _ the
amendment.” § 163.3184(3)(c)1, Fla. Stat. (2011). Although inapplicable, even
under the revised version of § 163.3184 the Amendment is deemed withdrawn as a
matter of law because no second public hearing was held within 180 days of the
BCC’s receipt of the DCA’s ORC Report, i.¢e., on or before March 15, 2011, and
because there was no extension by agreement.
8Fla. Admin. Code R. 9J-11.011(7) (2010).
In short, upon receipt of the ORC Report on September 1/7,
2010, the BCC had 60 days (until November 16, 2010) to either: (1)
adopt the Amendment; (2) adopt the Amendment with changes; or (3)
not adopt the Amendment. Instead, at the October 26, 2010
adoption hearing, the BCC voted to “defer” the Amendment.’
The BCC’s vote to “defer” the Amendment constitutes either:
(a) a determination and vote to not adopt the Amendment, in which
case the Amendment was terminated and no longer viable as of the
October 26, 2010 vote thereon; or (b) a determination and vote
that was not statutorily authorized, in which case the Amendment
was terminated and no longer viable as of 60 days after receipt of
the ORC Report, or November 16, 2010.
WHEREFORE, McCann requests summary final judgment finding
that the Amendment was terminated and no longer viable as of
either October 26, 2010 or November 16, 2010.
' Between 1989 and 2011, there were 42 proposed comprehensive plan
amendments that were not adopted by the BCC. Of those 42 proposed amendments,
12 were withdrawn by the applicant, 12 were denied by the BCC at the transmittal
stage public hearing and 18 were denied by the BCC at the adoption stage public
hearing. No other proposed comprehensive plan amendment has ever been
“deferred” by the BCC.
g/s/ Przemyslaw L. Dominko
steven D. Hutton
Florida Bar No. 342221
sdh@huttonlawfirm.com
Przemyslaw L. Dominko
Florida Bar NO. 0074143
pdominko@huttonlawfirm.com
STEVEN D. HUTTON, P.L.
240 South Pineapple Ave.
Suite 801
Sarasota, Florida 34236
(941) 364-9292 (Telephone)
(941) 364-9777 (Facsimile)
Attorneys for McCann Holdings,
Ltd.
CERTIFICATE OF SERVICE
I hereby certify that the foregoing document has been
electronically filed with the Clerk of the Court of Sarasota County,
Florida using the Florida Courts E-Filing Portal and served on Morgan R.
Bentley, Esq., Bentley & Bruning, P.A., 783 South Orange Avenue,
Sarasota, Florida, 34236 (mbentley@bentleyandbruning.com and
nwhite@bentleyandbruning.com); and Edward Vogler, II, Esq., Vogler
Ashton, PLLC, 2411-A Manatee Avenue West, Bradenton, Florida, 34205
(EdVogler@voglerashton.com), by e-mail via the Portal on April 16, 2014.
/s/ Przemyslaw L. Dominko
Przemyslaw L. Dominko
10
Preview
eFile Accepted: 04/16/2014 01:42 PM Filing # 12565369 Electronically Filed 04/16/2014 11:10:38 AM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA, COUNTY, FLORIDA McCANN HOLDINGS, LTD., Plaintiff, Vv. Case No. 2011CA003897NC SDC COMMUNITIES, INC., JURY TRIAL DEMANDED VOTT-A, LLC, VOTT-B, LLC, VOTT-C, LLC, VOTT-D, LLC, HENRY RODRIGUEZ, and RANDALL BENDERSON, Defendants. / PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff, McCann Holdings, Ltd. (“McCann”), pursuant to Fla. R. Civ. P. 1.510, files this Motion for Summary Judgment as to the following issues because the pleadings, depositions, affidavits and documents on file in this action show that there are no genuine issues of material fact and that McCann is entitled to judgment as a matter of law. The grounds upon which this Motion is based and the substantial matters of law to be argued are set forth below. Ir. BACKGROUND & UNDISPUTED FACTS A. The Energy Economic Zone Laws of Florida, Chapter 2009-89 became effective May 2/7, 2009. Section 7 of Chapter 2009-89 established “an Energy Economic Zone Pilot Program for the purpose of developing a model to help communities cultivate green economic development,encourage renewable electric energy generation, manufacture projects that contribute to energy conservation and green jobs and further implement Chapter 2008-191 Laws of Florida, relative to discouraging sprawl and developing energy-efficient land use patterns and greenhouse gas reduction strategies.” Ch. 2009-89, § —_ 7, Laws of Fla. Chapter 2009-89 also provided a mechanism for applications for inclusion in the Pilot Program. Id. In July of 2009, Sarasota County submitted its application, which included within the boundaries of its proposed Energy Economic Zone (“EEZ”) a parcel of property owned by McCann. Thereafter, the Department of Community Affairs of the State of Florida (‘DCA”)* announced the designation of the City of Miami Ww Beach and Sarasota County as “Energy Economic Zone Pilot Program Communities.” To participate in the Pilot Program, Sarasota County was required to, among other things, initiate an Amendment to its Comprehensive Plan in order to ensure that the Comprehensive Plan contains strategies related to key EEZ program requirements, including a strategic plan that includes mixed-use development and form-based development standards. see, S 377.809(2), Fla. Stat. (2009). ' The DCA no longer exists and has been replaced by the Department of Economic Opportunity as the “state land planning agency.” S 163.3164, Fla. Stat. 2B. Comprehensive Plan Amendment 2010-02-E Based upon the EEZ program requirements, Sarasota County initiated Comprehensive Plan Amendment 2010-02-E related to the PEL (“Amendment”) after a eseries of workshops, meetings and reports. The purpose of the Amendment was to amend the Sarasota County Comprehensive Plan to: (a) add a new section describing an Energy Economic Zone under Future Land Use Goal 2; and (b) add a new Special Planning Area 4 under Future Land Use Goal 5. Pursuant to the Amendment, Special Planning Area 4 was further divided as follows: 1. Sub-Planning Area 1, comprised of a 680 acre parcel of property owned by McCann‘; and 2. Sub-Planning Area 2, comprised of approximately 220 acres of property owned by Defendants, VOTT-A, LLC, VOTT-B, LLC, VOTT-C, LLC and VOTT-D, LLC (collectively, “VOTT”) and SDC Communities, Inc. (“SDC”) .° To achieve a better jobs and housing balance and ensure that the Comprehensive Plan contains strategies consistent with key EEZ program requirements, the Amendment sought to re-designate the land use designations on McCann’s “Area 1” property to include the following: 2 McCann’s “Area 1” property iS currently designated under the Comprehensive Plan as Moderate Density Residential (>2 and <5 dwelling units per acre) and zoned for agricultural use. > SDC has since sold its Area 2 property. 31. 1.5 million square feet of Major Employment Center (280 acres); 2. 250,000 square feet of Village 1 commercial (40 acres), allowing for up to 125,000 square feet of commercial use om and 125,000 square feet of office use; and 3. 1,900 (mixed) residential units (360 acres). In addition, certain “Financial Incentives” and “Regulatory 7 Incentives,” to be determined at a later date, would be available to McCann’s “Area 1” property as well as to all other properties within the EEZ. 1. May 20, 2010/June 3, 2010 Planning Commission Hearings On May 20, 2010, a public Planning Commission hearing was held to discuss and obtain public input on the Amendment. Facing varying degrees of support and opposition from various individuals and interest groups, the Planning Commission closed the public pine ttt input portion of the public hearing, requested staff to bring back modifications to the Amendment and continued the public hearing to June 3, 2010. On June 3, 2010, following the close of the continued public hearing, the Planning Commission voted to transmit the Amendment, as revised by staff, to the Sarasota County Board of County Commissioners (“BCC”) with a recommendation for approval.A public transmittal hearing regarding the Amendment was —_ scheduled to be held before the Sarasota County Board of County Commissioners (“BCC”) on June 23, 2010. 2. June 23, 2010/July 13, 2010 BCC Transmittal Hearings On June 23, 2010, the BCC held a public hearing to consider, among other things, the transmittal of the Amendment to DCA. During the public input portion of the hearing, the BCC heard both support for and opposition against the Amendment. Thereafter, the BCC discussed the Amendment, voted to immediately make certain revisions to the Amendment based upon the EEZ Joint Cooperation Agreement entered into by and between McCann and VOTT’, instructed the County Administrator to make certain additional revisions to the language of the Amendment based upon concerns raised by other members of the public and continued the transmittal hearing to July 13, 2010. At the July 13, 2010 public hearing, the BCC voted unanimously to approve the Amendment and transmit it to DCA for review and comment. 3. DCA Objections, Recommendations and Comments Report The DCA reviewed the proposed Amendment and, in response, Submitted its objections, recommendations and comments report (“ORC Report”) to Sarasota County on September 17, 2010. The transmittal letter from the DCA advised as follows: “These revisions related to the restrictions and limitations on the density/intensity of use on McCann’s “Area 1” property contained within the Joint Cooperation Agreement. 5Within the next 60 days, the County should act by choosing to adopt, adopt with changes or not adopt the proposed amendments. For your assistance, our report outlines procedures for the final adoption and transmittal. The Transmittal Procedures attached to the foregoing transmittal letter advised, in relevant part, as follows: Upon receipt of this letter, the County has 60 days in which to adopt, adopt with changes, or determine that the County will not adopt the proposed amendment. The process for adoption of local comprehensive plan amendments is outlined in s. 163.3184, Florida Statutes, and Rule 9J-11.011, Florida Administrative Code. In response to the ORC Report, the staff for Sarasota County submitted an Amended Staff Report to the BCC for its consideration at a public adoption hearing scheduled for October 26, 2010. In its Amended Report, County Staff again recommended approval of the Amendment: STAFF RECOMMENDATION: Staff recommends approval of Comprehensive Plan Amendment 2010-02-E. This amendment furthers reduction in greenhouse gaS emissions and planning reguirements of Florida statute, as well as steps needed to meet Goals 2 and 5 in the Future Land Use Chapter of the Sarasota County Comprehensive Plan. Staff requests that the Department of Community Affairs issue a Notice of Intent (NOI) fanding the Amendment consistent with the Sarasota County Comprehensive Plan and Florida State Statutes. 4, October 26, 2010 BCC Adoption Hearing At the October 26, 2010 BCC hearing, despite the staff recommendation, the BCC unanimously voted to “defer” adoption of the Amendment “to the next Comprehensive Plan Amendment Cycle”(1.e., sometime in 2011).° The BCC also directed the County Administrator to “work with the stakeholders and to bring back a progress report to the Board by January 15, 2011.” On November 1, 2010, acting on behalf of the BCC, the Sarasota County Director of Planning Operations, Tom Polk, sent a transmittal letter to DCA transmitting the comprehensive plan amendments that the BCC had adopted during the Z2ZQ010-02 Comprehensive Plan Amendment Cycle. With respect to the Amendment, Mr. Polk stated as follows: It should be noted that during deliberations, the Board of County Commissioners chose not to adopt amendment 2010-O02-E and instead moved it into the 2011-01 cycle of amendments for further refinement. No further action was ever taken on the Amendment, and the Amendment waS never transmitted to DCA for its review and approval. II. ISSUES FOR SUMMARY JUDGMENT A. The Amendment has expired and is no longer viable. S 163.3184, Fla. Stat. states, in relevant part: The local government shall review the written comments Submitted to it by the state land planning agency, and any other person, agency, or government...iIn the case of comprehensive plan amendments other than those proposed pursuant to s. 163.3191, the local government shall have > In addition to the Amendment, six other comprehensive plan amendments (2010-02-A, 2010-02-B, 2010-02-C, 2010-02-E, 2010-02-F and 2010-02-G) were proposed and considered by the BCC during the 2010-02 Comprehensive Plan Amendment Cycle. All six of these proposed comprehensive plan amendments were adopted by the BCC and transmitted to DCA for compliance review. Said differently, out of 7 comprehensive plan amendments proposed during this cycle, 2010-02-E was the only proposed amendment that the BCC did not adopt. 760 days to adopt the amendment, adopt the amendment with changes, or determine that it will not adopt the amendment... § 163.3184(7) (a), Fla. Stat. (2010).° See also, Martin County v. Yusem, 690 So.2d 1288, 1294 (Fla. 1997) (“At this point [after receiving an ORC report from DCA], the local government has three options: (1) adopt the amendment; (2) adopt the amendment with changes; or (3) not adopt the amendment.”) Similarly, Rule 9J-11.011 of the Florida Administrative Code provides, in relevant part: ...-in the case of a proposed amendment other than those submitted pursuant to Section 163.3191, F.S., the local government has 60 calendar days to adopt, adopt with changes, or not adopt the proposed amendment after receipt of the objections, recommendations and comments report from the Department pursuant to Section 163.3184(7) (a), F.S. Fla. Admin. Code R. 9J-11.011(3) (2010). Rule 9J-11.011 goes on to state: In the case where the local government makes’ the determination not to adopt a proposed plan amendment, a letter must be sent to the Department within five working days to inform the Department of this decision. This letter shall be sent to the Florida Department of Community Affairs, Division of Community Planning, Plan Processing Team. Effective June 2, 2011, $ 163.3184 was amended to state, in relevant part, that “if the local government fails, within 180 days after receipt of agency comments, to hold the second public hearing, the amendments shall be deemed withdrawn unless extended by agreement with notice to the state land planning agency and any affected person that provided comments on _ the amendment.” § 163.3184(3)(c)1, Fla. Stat. (2011). Although inapplicable, even under the revised version of § 163.3184 the Amendment is deemed withdrawn as a matter of law because no second public hearing was held within 180 days of the BCC’s receipt of the DCA’s ORC Report, i.¢e., on or before March 15, 2011, and because there was no extension by agreement. 8Fla. Admin. Code R. 9J-11.011(7) (2010). In short, upon receipt of the ORC Report on September 1/7, 2010, the BCC had 60 days (until November 16, 2010) to either: (1) adopt the Amendment; (2) adopt the Amendment with changes; or (3) not adopt the Amendment. Instead, at the October 26, 2010 adoption hearing, the BCC voted to “defer” the Amendment.’ The BCC’s vote to “defer” the Amendment constitutes either: (a) a determination and vote to not adopt the Amendment, in which case the Amendment was terminated and no longer viable as of the October 26, 2010 vote thereon; or (b) a determination and vote that was not statutorily authorized, in which case the Amendment was terminated and no longer viable as of 60 days after receipt of the ORC Report, or November 16, 2010. WHEREFORE, McCann requests summary final judgment finding that the Amendment was terminated and no longer viable as of either October 26, 2010 or November 16, 2010. ' Between 1989 and 2011, there were 42 proposed comprehensive plan amendments that were not adopted by the BCC. Of those 42 proposed amendments, 12 were withdrawn by the applicant, 12 were denied by the BCC at the transmittal stage public hearing and 18 were denied by the BCC at the adoption stage public hearing. No other proposed comprehensive plan amendment has ever been “deferred” by the BCC. g/s/ Przemyslaw L. Dominko steven D. Hutton Florida Bar No. 342221 sdh@huttonlawfirm.com Przemyslaw L. Dominko Florida Bar NO. 0074143 pdominko@huttonlawfirm.com STEVEN D. HUTTON, P.L. 240 South Pineapple Ave. Suite 801 Sarasota, Florida 34236 (941) 364-9292 (Telephone) (941) 364-9777 (Facsimile) Attorneys for McCann Holdings, Ltd. CERTIFICATE OF SERVICE I hereby certify that the foregoing document has been electronically filed with the Clerk of the Court of Sarasota County, Florida using the Florida Courts E-Filing Portal and served on Morgan R. Bentley, Esq., Bentley & Bruning, P.A., 783 South Orange Avenue, Sarasota, Florida, 34236 (mbentley@bentleyandbruning.com and nwhite@bentleyandbruning.com); and Edward Vogler, II, Esq., Vogler Ashton, PLLC, 2411-A Manatee Avenue West, Bradenton, Florida, 34205 (EdVogler@voglerashton.com), by e-mail via the Portal on April 16, 2014. /s/ Przemyslaw L. Dominko Przemyslaw L. Dominko 10