Resolution 041-1990
?lanning Department
RESOLUTION NO. 041-1990
A RESOLUTION OF THE BOARD OF COMMISSIONERS
OF MONROE COUNTY, FLORIDA, ACCEPTING AND
ADOPTING THE FINDINGS OF FACT, CONCLUSIONS
OF LAW, AND RECOMMENDED ORDER CONCERNING
THE VESTED RIGHTS HEARING OF TERRA COTTA
REALTY, (FLORIDA) CORPORATION
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WHEREAS, on July 11, 1989, a public hearing was held in Key
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West, Monroe County, Florida, concerning the vested right claim
of Terra Cotta Realty (Florida), Inc.; and
WHEREAS, pursuant to section 9.5-183 of the Monroe County
Code of Ordinances, sworn testimony and evidence were taken from
those present at this public hearing; and
WHEREAS, in accordance with the requirements of section
9.5-182 (b) (3) of the Monroe County Code of Ordinances, Hearing
Officer John E. Bigler, Jr., has entered findings of fact, conclu-
sions of law, and a recommended order resolving the vested rights
claim by Terra Cotta Realty (Florida), Inc.; and
WHEREAS, the Board of Commissioners of Monroe County, Flori-
da, now desires to adopt said findings of fact, conclusions of
law, and recommended order concerning Terra Cotta Realty (Flori-
da), Inc.: now, therefore,
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA THAT:
The Board hereby adopts, pursuant to section 9.5-182 (b) (5)of
the Monroe County Code of Ordinances the said findings of
fact, and
conclusions of law, and recommended order entered by
Hearing Officer John E. Bigler, Jr., resolving the vested right
~laim
of Terra Cotta Realty (Florida) Inc., a copy of which is
attached and made a part of this resolution.
The Clerk of the Board is hereby directed to forward a certi-
fied copy of this resolution to the Florida Department of Commu-
ni'ty Affairs.
PASSED AND ADOPTED by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of said Board held
on the 10th day of January, A.D., 1990.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
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By
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Mayor/Chairman
(SEAL)
A ttest ~~J~..Q.J~1Y\.Q...~ ~~
~ X?ft4'1~..e
Clerk
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STATE OF FLORIDA, COUNTY OF MONROE
VESTED RIGHTS HEARING
TERRA COTTA P~TY (FLORIDA) INC.,
. . .
Petitioners,
vs.
MONROE COUNTY,
Resp'ondent.
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
(Jointly approved and executed by counsel
for Petitioner and Monroe County).
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before John E. Bigler, Jr., duly designated hearing officer, on
July 11, 1989 in Key West, Monroe County, Florida. The appear-
Pursuant to notice, this cause came on for hearing
ances were as follows:
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For Petitioners:
Richard A. Pettigrew, Esq.
Luis R. Figueredo, Esq.
Morgan, Lewis & Bockius
5300 Southeast Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131-2339
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For Respondents:
Joseph Kelinson, Esq.
Assistant County Attorney
310 Fleming Street
Key West, Florida 33040
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1. This cause arose up'on the filing of
application for determination of vested rights dated
September 15, 1987 filed by Morgan, Lewis & Bockius on behalf
of Terra Cotta Real ty (Florida), Inc., (I'TCR"), the owners of
Pumpkin Key. Tqe hearing was held pursuant to legal
an
F\~~I~lJd'jUrisdiction:as found in ~4-107 in' Chapter 8,
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DEe 1 8 1989
PLANNING DEPT.
BY LAND (US~t~r~~~
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Vol. 3, Florida Keys Comprehensive Plan. The hearing was
conducted under the rules of procedure as set forth in
Chapter 28-5, Florida Administrative Code and Chapter 120,
Florida statutes. The petitioner called one witness at the
hearing, John Guttman, who gave sworn testimony. The
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following exhibits were introduced into evidence.
Exhibit No. 1 is a composite exhibit which consists
of 137 documents as set forth. (See the Appendix
attached hereto).
Exhibit No. 2 is a schedule of TCR's acquisition
and construction costs for Pumpkin Key from 1973 to
1987.
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Exhibit 3 is a Building Permit dated February 18,
1983 (Permit No. C-12391) together with a site
plan, for a single family residence and three
accessory buildings.
Exhibit 4 is a zoning checklist dated January 1,
1983.
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Exhibit 5 is a building permit routing schedule
dated January 6, 1983.
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The following additional exhibits were introduced
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into evidence after the hearing.
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Exhibit 6 is an affidavit from John Guttman stating
that he had various meetings and communications
with Monroe County Building and Zoning and it was
ultimately determined that the Monroe County major
development ordinance did not apply to TCR's
proposed development.
Exhibit 7 is a Joint stipulation for Positive
Determination of Vested Rights filed by the parties
on August 1989.
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The hearing was open to the public and provisions
were made for public input, if any.
The issue to be resolved in this proceeding is
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whether or not petitioner meets the standards for vested
rights as set forth in Division 3 of Vested Rights Vol. 3,
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Florida Keys Comprehensive Land Use Plan of Monroe County.
Findinqs of Fact
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1. Mr. John Guttman, a professional engineer
affiliated with the firm, Consulting Engineering and Science,
located at 7520 Red Road, Suite 200, South Miami, Florida
33143, testified that he has worked on the proposed
residential development of Pumpkin Key since 1973. (See
Hearing Transcript at Page 26).*
2 .
As per Section 99.5-183(a) (1) of the Monroe
County Code, John Guttman testified that he was intimately
involved in obtaining permits and approvals from federal and
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state agencies as well as Monroe County. (T:27). In that
capacity Mr. Guttman testified that he had close interaction
with the staffs and directors of various departments within
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the County.
(T:28-29). Mr. Guttman testified that Composite
Exhibit 1 contains various documents submitted to Monroe
County which bear his initials and signatures, together with
correspondence to county staff and directors discussing
various aspects of Pumpkin Key's development. (T:27).
Composite Exhibit 1 also contains correspondence and permits
from Monroe County authorizing various aspects of TCR's
proposed development.
* (References to the hearing transcript will be
hereinafter designated as (T: ) indicating the
appropriate page in the transcript).
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3. Mr. Guttman presented a historical background
of the Pumpkin Key proposed development. Mr. Guttman stated
that as a result of preliminary meetings with both state
agencies in Tallahassee and the director of the then Monroe
county planning department, Mr. Kermit Lewin, it became
evident that a proposed development project consisting of
sixteen (16) residential homes on lots, one acre or greater
in size was consistent with Pumpkin Key's GU zoning and
acceptable to Monroe County. (T: 28-29).
4. Mr. Guttman testified that the health
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department stated that it would allow the establishment of
sixteen (16) single family lots using septic tanks on the
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island. (Ex. 1 No. 100, Ex. 3) (T. 29). Mr. Guttman asserted
that once conceptual approvals were attained from the various
agencies for TCR's proposed residential development, TCR
complied with all applicable permitting requirements which
ultimately led to Monroe County's approval of TCR's
development plan. (T: 29). Mr. Guttman also asserted that
once Monroe County approved TCR's development plan, no other
approvals, other than standard building permits were
necessary in order to proceed with the proposed development.
(T. 55).
(See also Ex. 6).
5. TCR also submitted the following documents as
a part of composite Exhibit 1 as proof of unexpired Monroe
County governmental acts.
A. Letter from Monroe County Planning and
Zoning Department dated December 12, 1974
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confirming Pumpkin Key's Zoning as GU and
thereby permitting the development of
detached single family residences on lots
one acre or larger. (See Ex. No. 15,
NO.1, Document Number I5).
B.
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Monroe County Commission Resolution dated
March 18, 1975 permitting TCR to
construct rip rap breakwaters, a multi-
resident dockage facility, the
performance of maintenance dredging on
the existing channel and basin, and
placement of the subaqueous utility
crossing from Ocean Reef approximately
1300 feet from the island in order to
service the proposed Pumpkin Key
development (See Ex. 1, No. 23).
C. Monroe County Building Permit for Land
Clearing No. C-8879 issued to TCR for the
fire and security path, interior cart
path, utility service lines and tennis
courts. (See Ex. 1, No. 75).
D. Monroe County Permit No. C-9073 for
construction of concrete walkway from
dock to the island dock house dated
February 12, 1981. (See Ex. 1, No. 75).
Letter to Henry Weinkem of the Monroe
County Building and Zoning Department,
dated February 18, 1981, confirming his
approval of construction of the beach
area on south side of Pumpkin Key. (See
Ex. 1 No. 77).
Monroe County Building and Zoning
Building Permit No. C-12391 for the
construction of the electricity, plumbing
and air conditioning for building
construction of the main residence and
Buildings 1 and 2. (See Ex. 1 No. 84).
Approved construction drawing for service
complex for TCR Pumpkin Key signed by
Howard Johnson, Monroe County Building
Department, on January 17, 1983 to
service the 16 residential sites per site
plan consisting of 16 pages. (See Ex. 1
No. 88).
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H. Monroe County Construction Permit for the
extension of electricity to the existing
dock (Permit No. C-12516). (See Ex. 1,
No. 93).
I. Monroe County Building Permit and
Certificate of Occupancy per approved
plans for single family residence and
three accessory buildings. (See P. Ex.
1, No. 94).
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Monroe County Health Department (State of
Florida, Department of Health and
Rehabilitative Services), septic tank
permits T-2006-83 issued on February 21,
1984; T-2007-83 issued on August 6, 1983
and T-008-83 issued on July 27, 1983
approving the septic tank systems on
Pumpkin Key. The permit application
includes a site plan filed with the
Monroe County Health Department, approved
by Art Maze, which depicts the proposed
development of the 16 lots, a dock
facility, the internal and perimeter
paths, the conservation area (a boardwalk
over a mangrove area) and two tennis
courts. (See Ex. 1, No. 100 and Exhibit
3) .
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6. Mr. Howard M. Tupper, a Monroe County Planning
Official testified that he has discovered a Monroe County
Health Department permit and a site plan setting forth the
sixteen (16) subdivisions, the existing residences together
with the dock facility, perimeter and security paths, and
tennis courts dated February 18', 1983, which demonstrates
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(T: 47).
that Monroe County was aware of the ongoing project. (Ex. 3)
7. Mr. Tupper testified that he conferred with
the County Attorney's office and was advised that the Monroe
County Health Department Permit constituted an unexpired
governmental act of Monroe County. (T:' 48).
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8. Mr. Tupper further testified that he also met
with growth manager, Don Craig, and it is their opinion that
there is sufficient evidence in Monroe County's file for
Monroe County to enter into a stipulation that Pumpkin Key
has vested rights and should be allowed to complete its
. . .
proposed development.
(T: SO) (See Ex. 7, Joint stipulation
for Positive Determination of Vested Rights.)
9. Under 99.S-183(a) (2) Mr. Guttman confirmed
that the expenditures by TCR as set forth in Exhibit 2 which
cover TCR's costs from 1973 to 1987 are correct. The costs
set forth in Ex. 2, however, do not include the carrying
costs for Pumpkin Key such as real estate taxes, insurance
and interest.
10. Mr. Guttman testified that the construction of
the subaqueous utility crossing, extending telephone,
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electricity and water to Pumpkin Key together with the
docking facility, two tennis courts and perimeter and
security paths were all planned and constructed to meet the
ultimate demands of sixteen (16) single family residences and
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are not reasonably usable in a development presently
permitted under Monroe County Land Development Regulations.
(T: 30, 31, 39 and 40).
11. TCR submitted into evidence a certificate 'of
investment dated July 10, 1989 and signed by its controller,
which states that the certified audit of Peat Marwick Main
dated March 31, 1989 indicates that TCR had expended a total
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of $4,976,154.50. TCR has incurred these expenditures in
reliance on Monroe County's various authorizations and
approvals for Pumpkin Key's development.
(Ex. 1, No. 137).
12. TCR has also submitted additional documents
which are included in Composite Exhibit 1 and further
demonstrate TCR's expenditures in furtherance of the
development of Pumpkin Key made in reliance on Monroe County
Acts.
(Ex. 1, Nos. 25, 28, 30, 49, 50, 72, 98, 104 and 123).
13. Under 99.5-183(a) (3)a, Mr. Guttman testified
that as early as September of 1974 a guidance conference
occurred between Mr. Guttman, Mr. Berry and Mr. Kermit Lewin,
at which time Mr. Lewin was advised of TCR's proposed
development and existing site plan.
(T:29).
14. TCR's proposal to construct a subaqueous
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utility crossing together with maintenance dredging of an
existing channel, installation of three-way breakwaters to
protect both a proposed mUlti-residential docking facility
and a man-made beach was publicly noticed on March 9, 1975 in
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the Key West Citizen (Ex. 1, No. 20). Thereafter, TCR's
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application to construct was unanimously approved by the
Board of County Commissioners by a resolution dated March 18,
1975.
(Ex. 1, No. 23). The construction of the subaqueous
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utility crossing extending electricity, telephone and water
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to the island together with maintenance dredging and the
construction of the three-way breakwaters to protect the
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docking facility and beach commenced in 1976.
(Ex. l, Nos.
32, 33, 35, 42-48, 51-57).
Mr. Guttman testified that the infrastructure on
the island and utilities extending water, power and telephone
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to each of the sixteen (16) lots is completed.
15. The construction of the perimeter and security
paths, residential'docking facility, two tennis courts and
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beach have also been completed.
(T:2).
16. Mr. Guttman further testified that the
expenditures made in the development of Pumpkin Key to date
are disproportionate to the value of the property under its
present zoning and are not reasonably usable by the
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presently permitted uses for Pumpkin Key.
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Mr. Guttman stated:
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I believed that we have expended significantly
greater amounts of funds than would be necessary to
allow support of three residential units on
Pumpkin Key. For example, I maintain that we
wouldn't need sUb-access [sic] utility crossing for
water, power and telephone. We will go with
cisterns and auxiliary generators. Mr. Berry
wouldn't have had to spend any of the money that he
has at this point. He wouldn't have built a
docking facility if he envisioned three people
living on the island. Two tennis courts are nice,
too, but it is disproportionate ... the marina is
permitted for residential docking facilities, and
as such it would be unfeasible to rent slips out to
the general public to fill out the difference
between the three residents that could live on the
island now and the 20 slips that are there. It'
hasn't been designed for that purpose.
The expenses incurred by TCR are therefore unique to the
development previously approved and not reasonably usable by
the development presently permitted.
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17. Under ~9.5-183(a} (3) (b), Mr. Guttman testified
that in 1974 his firm conducted a detailed environmental
assessment of the proposed development. (T:32). The
assessment studied the potential impacts of the development
on groundwater conditions, natural vegetation and endangered
species. The study concluded that the proposed development
of sixteen (16) residences on Pumpkin Key would have
negligible impact on the environment. (Ex. 1, NO.7). Mr.
Guttman also stated that the breakwaters and dockage areas
appear to have enhanced marine life by increasing the
habitat. (T:33}."
18. Mr. Guttman also testified that without a
positive determination of vested rights, the damage suffered
by TCR would be tremendous. The designation of Pumpkin Key
as an offshore island land use district deprives TCR from the
beneficial use of its property and the improvements made
thereon. (T:33). Mr. Guttman testified that TCR would not
be able to realize a return on its investment if it were
denied vested rights from this project at this point. Mr.
Guttman added "I think the costs that have been expended to
date have always been in pursuit of distributing those costs
between 16 building sites. Right now, we have expended
hundreds of thousands of dollars simply to provide utiliiles
for one house." (T:33).
19. There was neither testimony nor evidence
offered which stated that the public would be harmed if TCR's
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proposed development were permitted to go forward.
20. Under 99.5-183(a) (3)c the joint stipulation
filed by the parties acknowledge that the evidence contained
in record contains ample evidence that Pumpkin Key was in
fact economically viable when approved." (See Exhibit No.
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21. Under 99.5-183(a) (3)d, Mr. Guttman testified
that he has been working on the proposed development since
1974. Expenditures were incurred in the furtherance of TCR's
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development ten years prior to the amendment of the Monroe
County Comprehensive Plan regulations in September 1986.
22. Under 99.5-183(a) (3}e, Mr. Guttman testified
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that TCR, under its offshore island land use district
designation cannot utilize or make a reasonable return on its
expenses or obligations incurred to date and thus it would be
irreparably injured if the residential development is not
permitted to proceed as a originally planned and authorized.
(T:33).
Conclusions of Law
As a result of the documents placed into evidence
and the testimony given in these hearings the following
conclusions of law are made:
1. This hearing officer adopts and incorporates
into this order the joint stipulation for a positive
determination of vested Lights entered into between the
petitioner TCR and Monroe County;
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2. This hearing officer finds in the conclusion
of law that the petitioners have satisfied each of the
criterion set forth in 99.5-183, Standards for Vested Rights
Required by the Monroe County Code;
3. This hearing officer finds in the conclusion
of law that the petitioners are entitled to a positive
determination of vested rights under Florida Statutes Chapter
380.05(18}, 1985. This section states in part:
Neither the designation of an area of critical
state concern nor the adoption of any regulations
for such an area shall in any way limit or modify
the rights of any person to complete any
development that has been authorized ... by a
building permit or other authorization to commence
development on which there has been reliance and a
change of position ... If the developer has, by
his actions and in reliance on prior regulations
obtained vested or other legal rights, that law
would have prevented a local government from
changing those regulations in the way adverse to
its interests. Nothing in this Chapter authorizes
any governmental agency to abridge those rights.
That the various site plans submitted in petitioners
composite Exhibit No. 1 for the development of Pumpkin Key
provided the Monroe County Department of Building and Zoning
with ample notice of TCR's intended development;
4. This hearing officer finds in the conclusion
of law that plat approval is not required for TCR's proposed
development under Section 9.5-81(b) of the Monroe County
Code. Section 9.5-81(b} of the ~onroe County Code provides:
(b) No building permit, except for single
family detached dwellings and accessory
uses ther~to, shall be issued for the
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construction of any building, structure
or improvement unless a final plat has
been approved in accordance with the
provisions of this division, and recorded'
for the lot on which the construction is
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proposed.
6. This hearing officer also takes jUdicial
notice of paragraph 10 of the Joint Stipulation for a
Positive Determination of Vested Rights which recommends that
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the zoning for Pumpkin Key be changed from offshore island
district to suburban residential district, and specifically
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The parties acknowledge that, since the
sixteen lots may be constructed by sixteen
different homeowners, certain flexibilities
with respect to the construction of the homes
may be desired by the future homeowners, a
positive determination of vested rights,
absent a change in the zoning classification
for Pumpkin Key from offshore (OS) island to
suburban residential district (SR) may place
unnecessary restrictions on the development
which would otherwise be consistent with the
SR zoning classification. The parties
therefore recognize that a zoning change for
Pumpkin Key from OS to SR would provide TCR
with the desired flexibility for developing
the sixteen (16) single family homes.
Therefore, Monroe County's Building and Zoning
Department agrees to recommend to the Monroe
County Commission that it approve an
application from TCR to re-zone Pumpkin Key
from OS to SR.
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Recommendation
Having considered the foregoing findings of fact
and conclusions of law, the evidence of record, the candor and
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demeanor of the witnesses, and the' pleadings and 'arguments of the
parties, it is therefore recommended that the petitioners, TCR,
be and are entitled to a positive determination of vested rights
under both ~8-303 of the new Monroe County Comprehensive Land Use
Plan (codified at 9.5-183 of the Monroe County Code), as well as
Florida Statutes Chapter 380.05(18) (1985), to construct fifteen
(15) single family residential homes on lots one acre or greater
in size on Pumpkin Key.
It is further recommended that the positive
determination of vested rights permitting the construction of
fifteen (15) additional single family residential homes be
limited to a period of five years.
In this regard TCR shall
secure or have pending the building permits for the proposed
single family dwellings.
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The conclusions or law, and the terms and
conditions of this document are agreed and stipulated to by the
parties.
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For Petitioners:
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MOrga~. Lewis & Bockius
5300 S.E. Financial Center
200 South Biscayne Boulevard
Miami, Florida 33131
os p . e 1nson, sq.
s istant County Attorney
for Monroe County, Florida
310 Fleming Street
Key West, Florida 33040
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STATE OF FLORIDA, COUNTY OF MONROE
TERRA COTTA REALTY (FLORIDA) INC.,
Petitioners,
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vs.
MONROE COUNTY,
Respondent.
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FINAL ORDER
This Hearing Officer has heard the €vidence presented by
Petitioners and Respondent, Monroe County, and has considered
both the evidence and the stipulations entered into by and
between the parties and more specifically those FINDINGS OF
FACT. CONCLUSIONS OF LAW AND ORDER whose certificate of
service is dated 6 November 1989, IT IS ORDERED as follows:
1. That Findings of Fact, Conclusions of
Law and Order, whose certificate of
service is dated 6 November 1989, be and
is admitted and adopted, in its
entirety, as a portion of this FINAL
ORDER (hereinafter "Stipulation");
attached as Exhibit 1 hereto;
2. That the letter of July 27, 1989,
from Howard M. Tupper, Planning Official
of Respondent, is admitted as Exhibit 138
and evidences the Respondent's ongoing
recognition of development of this site:
3. That the public was invited to
participate and no one availed themselves
of this opportunity after proper
publication of hearing notice therefore,
this petition was heard without
objection;
4. That the Petitioners are entitled to
and do have the vested rights to
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RECEIVED
DEe 1 8 lH8Q
PLANNING DEPT.
LAND USE DIVISION
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"
,
construct the fifteen (15) single family
residences on Pumpkin Key as set forth in
said "Stipulation";
DONE and ORDERED at Key West,
this I~ day of December 1989.
cc: Honorable John Stormont
Mayor, Monroe County
Board of county Commissioners
Key West, Florida 33040
Capt. Tom Brown
County Administrator
Monroe County Public Service Bldg.
stock Island
Key West, Florida 33040
Howard Tupper j
Planning Official I ,
Monroe County,Public Service Bldg.
Stock Island
Key West, Florida 33040
-2-
::"":","",,,,---'7-'
Monroe County, Florida,
Joseph H. Kenison, Esq.
Assistant County Attorney
310 Fleming street
Key West, Florida 33040
Louis R. Figueredo, Esq.
5300 S.E. Financial Cnt.
200 S. Biscayne Boulevard
Miami, Florida 33131-2339