Subject:
Title
Consideration of a Settlement Agreement with Merritt Island Development to settle alleged claims under the Bert Harris Act purportedly arising from an amendment to the Comprehensive Plan relating to property on Merritt Island, and providing for Brevard County’s acquisition of certain real property.
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Fiscal Impact:
If approved, the Settlement Agreement will release Brevard County (General Fund) from contingent liability for pending alleged claims including purported diminution in property value, prejudgment interest, attorneys’ fees, expert fees and costs of more than $4 million. The Settlement Agreement further provides for Brevard County’s acquisition of approximately 147 acres of property for stormwater outfall, stormwater storage, conservation, recreation, and other public purposes for a total of $3 million, apportioned as follows: $578,045 SOIRL Basin 835 Stormwater Treatment (Fund 1260-271010, FP 516647); $487,058 SOIRL Basin 840 Stormwater Treatment (Fund 1260-271010, FP 516647); $424,069 SOIRL Basin 827 Stormwater Treatment (Fund 1260-271010, FP 516647); $588,000 FDEP Grant 22FRP98 West Crisafulli Road Drainage Improvements (Fund 1700-313937); up to $562,828 NMI West Crisafulli/Church Street CIP (Fund 1112-260030, FP 6964202); $360,000 from the Environmentally Endangered Lands (EEL) Program, subject to adjustment based on appraisal, plus the cost of appraisal (Fund 3218, CC 340241).
Dept/Office:
County Attorney’s Office
Requested Action:
Recommendation
Staff requests that the Board of County Commissioners (1) approve a tentative Settlement Agreement that, subject to Court approval, will resolve the case of Waters Mark Development Enterprises, LC v. Brevard County, Brevard County Circuit Court Case No. 05-2014-CA-041947-XXXX-XX; (2) as part of the settlement agreement and pursuant to the Bert Harris Act and as further described herein, authorize the acquisition of approximately 147 acres of property for stormwater treatment, flood mitigation, conservation, recreation, and other public purposes for a total of $3 million as described herein; (3) authorize the Chair to execute the Settlement Agreement upon County Attorney and Risk Management approval, and authorize the Chair, County Manager, or County Attorney, as appropriate, to execute such other documents as may be necessary to finalize and effectuate the settlement and related real property acquisitions; (4) authorize the Chair to execute an amendment to FDEP Grant 22FRP98 to be spent solely on land acquisition for the drainage project, if required; (5) authorize the Chair to execute a Declaration of Restrictive Covenants that shall be recorded and run with the land for the portion of property acquired for the drainage project with FDEP grant funds; (6) approve a waiver of the EEL Land Acquisition Manual to facilitate the acquisition of a 120-acre parcel and a 2.19-acre parcel identified for preservation, conservation, and long-term management under the EEL program; and (7) authorize the County Manager to execute necessary budget amendments (BCRs).
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Summary Explanation and Background:
The dispute that is the subject of this Agreement involves a 109.06-acre parcel located on Merritt Island, Real Estate Account #2317059 (the “MID Property”), owned by Merritt Island Development, LLC f/k/a Waters Mark Development Enterprises, LC (“Waters Mark”). In 2006, Waters Mark purchased the MID Property for $10,000,000. At the time Waters Mark purchased, the MID Property, the Future Land Use Map designation applicable to the Property was Residential 1 (one unit per acre), the zoning designation was EU-2 (one unit per acre), and the Property was subject to a 1997 Binding Development Plan that, among other things, limited total development on the Property to not more than 130 units.
From 2006 to 2009, Waters Mark sought various development approvals from the County and the St. Johns River Water Management District for a proposed 84 lot subdivision on the Property. In 2009, the County adopted Ordinance No. 09-21, which set forth amendments to the Brevard County Comprehensive Plan. Among other things, the plan amendments set forth in Ordinance No. 09-21 changed the Future Land Use Map designation for the Property from Residential 1 to Residential 1:2.5 (one unit per two and one-half acres).
On September 11, 2014, Waters Mark filed a claim pursuant to the Bert J. Harris Private Property Rights Protection Act, Section 70.001, Florida Statutes (the “Harris Act”) against the County, Case Number 05-2014-CA-041947-XXXX-XX in the Circuit Court of the Eighteenth Judicial Circuit in and for Brevard County, Florida (the “Litigation”). In the Litigation, Waters Mark contends that the application of Ordinance 09-21 to the Property reduced the development potential of the Property from the proposed 84 lot subdivision to a maximum of 38 lots. In an October 23, 2013 Harris Act presuit notice, Waters Mark alleged a resulting diminution in value of the Property from $4,320,000 to $1,770,000 and sought more than $2.5 million in compensation, together with attorneys’ fees, expert fees, costs, and prejudgment interest.
Apart from the Litigation, Brevard County has long sought to obtain a stormwater outfall in the vicinity of the MID Property to facilitate an important flood mitigation project, benefiting generally the area west of N. Courtenay Parkway, from W. Crisafulli Road on the north end, to just past Porcher Road on the south. The proposed Settlement Agreement provides for the County to acquire approximately 25 acres along the southern edge of the MID Property for the public purposes of the needed stormwater outfall, stormwater treatment ponds to reduce pollution discharge into the Indian River Lagoon, and possibly for public recreational access to the Indian River Lagoon. The County will also acquire a 60-foot-wide nonexclusive easement located on the northern portion of the MID Property to construct an underground piped stormwater outfall.
Waters Mark also owns a 120-acre parcel located generally southeast of the Property, on the north side of East Hall Road, Real Estate Account #2318766 (the “Hall Road Parcel”). The Settlement Agreement provides for Waters Mark’s use of the Hall Road Parcel for mitigation pursuant to a St. Johns River Water Management District permit. Waters Mark will remove all non-native invasive plants, foreign debris, and otherwise comply with the SJRWMD permit requirements. Waters Mark will then convey the 120-acre Hall Road Parcel to the EEL Program. The Hall Road Parcel will be stripped of all development potential and maintained by EEL for preservation and conservation. As such, it will continue to provide important stormwater storage for the area and mitigate against future flood risk.
Brevard County will also acquire a 2.19-acre peninsular parcel located to the west of the MID Property (the “Horn Parcel”). The Horn Parcel will be maintained by the EEL Program, for public purposes including preservation and conservation, with potential for passive and active recreation if access allows.
In consideration of the above-described land conveyances, Brevard County will pay Waters Mark a total of $3 million, with the allocation between departments and funds being as described in the Fiscal Impact section of this report. Should appraised value of the Hall Road Parcel result in increased allocation to the EEL Program, the portion of the overall purchase price apportioned to the NMI West Crisafulli/Church Street CIP will be reduced accordingly.
The Settlement Agreement provides for a release of Waters Mark’s claims against Brevard County including purported diminution in property value, prejudgment interest, attorneys’ fees, expert fees and costs alleged to exceed $4 million, and dismissal of the Litigation with prejudice. In consideration of the release, Brevard County will restore the development potential on the MID Property to up to 84 single-family units (an increase in development potential of 46 units over the current 38 units allowed under the RES 1:2.5 future land use map designation). Brevard County will also allow Waters Mark to develop a residential marina with a maximum of 42 slips, subject to meeting all regulatory agency requirements including the County, Florida Department of Environmental Protection, and United States Army Corps of Engineers. Other than the marina, Waters Mark may develop only one community viewing pier (no mooring), and two single docks associated with larger lots on the MID Property. No other docks will be permitted for individual waterfront lots, thus reducing the proliferation of individual docks associated with Waters Mark’s earlier subdivision applications.
The Settlement Agreement further provides for Brevard County’s extension of a sanitary sewer force main that will terminate at or near the intersection of North Tropical Trail and Porcher Road and have sufficient capacity to serve the up to 84-unit subdivision. The design for this sewer force main extension is underway in the Utilities Department. In addition to the Waters Mark subdivision, the force main extension project will facilitate area septic to sewer conversions.
On February 17, 2026, the County Attorney, Natural Resources Stormwater Program Manager Bach McClure, and Natural Resources Environmental Policy and Resilience Administrator Darcie McGee attended a special meeting of the North Merritt Island Homeowners Association Board of Directors to discuss the settlement proposal and answer questions. The NMI HOA Board members generally expressed support for the proposal, particularly the portions of the agreement providing stormwater outfalls for local flood mitigation projects and preservation and conservation of the 120-acre Hall Road Parcel.
Clerk to the Board Instructions:
Please provide the County Attorney’s Office with a copy of the Clerk’s Memorandum and signed copy of the Settlement Agreement with Clerk’s attestation.