Resolution 181-1990
Planning Depal t
RESOLUTION NO.
181-1990
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 BENEFICIAL USE
HEARING OF JAY GLYNN
WHEREAS, on September 18, 1989, a public hearing was held in
Key West, Monroe County, Florida, concerning the beneficial use claim
of Jay Glynn; and
WHEREAS, pursuant to Division 2 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
9.5-172 (b) (5) of the Monroe County Code of Ordinances, Hearing
Officer John E. Bigler, Jr., has entered findings of fact, conclusions
of law, and a recommended order resolving the beneficial use claim by
Jay Glynn; and
WHEREAS, the Board of Commissioners of Monroe County, Florida,
now desires to adopt said findings of fact, conclusions of law, and
recommended order concerning Jay Glynn; now, therefore,
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA THAT: The Board hereby adopts, pursuant to section
9.5-172 (b) (5) of the Monroe County Code of Ordinances the said
fi~ing~of fact, and conclusions of law, and recommended order
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en~reddDY the Hearing Officer, resolving the beneficial use claim of
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Jay Glynn, a copy of which is attached and made a part of this
resolution.
The Clerk of the Board is hereby directed to forward a certified
copy of this resolution to the Florida Department of Community
Affairs.
PASSED AND ADOPTED by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of said Board held
on the 7th day of March, A.D., 1990
BOARD OF COUNTY COMMISSIONERS
O~ CO TY, FLORIDA
Mayor/Chairman
(SEAL)
Attest:PANNX La KOLHAGE,t ~~~
".,
STATE OF FLORIDA
COUNTY OF MONROE
BENEFICIAL USE HEARING
JAY GLYNN,
Petitioner
vs.
MONROE COUNTY, a political
subdivision of the State of
Florida,
Respondent.
/
FINDINGS OF FACT,
CONCLUSIONS AND ORDER
1. This matter carne on to be heard on the sworn
application of Petitioner, JAY GLYNN, for Beneficial Use of land
in Monroe County, described as:
A subdivision described as Sunset Park,
Section 13 and 14, Township 63, South, Range
37 East, recorded in Plat Book 6, Page 102,
Plantation Key, Monroe County, Florida,
consisting of:
Lots 1 through 24, Block One;
Lots 1 through 43, Block Two;
Lots 1 through 40, Block Three;
Lots 1 through 38, Block Four;
and a platted but undug lake described as
Sunset Lake in Block Four.
and
Government Lot 3, Plat Book 1, Page 101
[located in Section 13, Township 63 South,
Range 37 East, Plantation Key], Monroe
County, Florida;
2. The Hearing Officer was JOHN E. BIGLER, JR. and the
hearing was held on September 18, 1989 in Key West, Florida,
3. The appearances were:
APPEARANCES
For Petitioner:
Richard H. M. Swann, Esq.
Hall & Swan
2801 Ponce de Leon Boulevard, #650
Coral Gables, Florida 33134
Lucien C. Proby, Jr., Esq.
Taylor, Brion, Buker & Greene
500 Fleming Street
Key West, Florida 33040-6882
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For Respondent:
Mark Graham Hanson, Esq.
Assistant County Attorney
310 Fleming street
Room 29
Key West, Florida 33040
4. Sworn testimony was presented and exhibits were
introduced by both parties.
The following exhibits were
received, marked as follows, and considered by the Hearing
Officer at the Beneficial Use Hearing:
EXHIBITS
Exhibit 1:
Stipulation between the parties.
Exhibit 2:
Plat of the subject property (marked up):
Exhibi t 3:
Tract map of the subject property dated
September 18, 1989 with markings thereon.
Exhibit 4:
Affidavit from Richard Bullman.
Exhibit 5 :
Letter from Mr. Lewin dated August 27,
1979.
Exhibit 6:
MUlti-page Beneficial Use Application with
attachments filed therewith.
Exhibi t 7:
Composite two aerial photographs of the
subject property.
Exhibit 8:
Affidavit as to Notice of Hearing.
Exhibi t 9:
Appraisal of otis Mooney, attached to
Beneficial Use Application.
Exhibit 10:
Bruce Elkin's Appraisal on behalf of
Monroe County.
Exhibit 11:
Letter from Mr. Patterson, Monroe County
Land Authority to Petitioner dated May 26, 1988.
5. After the transcript of testimony was duly
transcribed, delivered to the parties, and examined by the
Hearing Officer, the Hearing Officer makes the following Findings
and Fact, Conclusions of Law and Order:
FINDINGS OF FACT
6. This cause arose upon the filing of an Application
for determination of Beneficial Rights in the Subject property by
its owner, JAY GLYNN.
7. Proper notice was given.
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8. No member of the Public appeared before the
Hearing Officer at the time and place of the hearing.
9. The only persons who appeared before the Hearing
Officer are indicated in the transcript of proceedings taken by
BILLE JEAN FASE, Official Court Reporter, dated November 6, 1989.
The original transcript of proceedings has been filed herein.
10. Each party presented Proposed Facts, Law and
Orders.
11. Under the law and Regulations, an applicant is
entitled to relief if he demonstrates all of the following as
found in Section 9,5-161 through 9.5-184 of the Monroe County
Land Development Regulations (emphasis added). Section '9.5-
172(c) (1) provides in pertinent part:
A) That the expectations of use immediately
prior to the effective date of these
regulations were investment-backed;
B) That the expectations of use immediately
prior to the effective date of these
regulations were reasonable, given all
circumstances including surrounding land uses
and applicable regulations of the state and
federal agencies:
C) That the value of the property under
these regulations is less than Forty Percent
(40%) of the reasonable investment-backed
value of the property immediately prior to
the effective date of this Chapter.......;
D) That the owner has been unsuccessful in a
bona fide attempt to sell the property for
forty percent (40%) of its investment-backed
value immediately prior to the effective date
of these regulations.
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12. The testimony was that the Petitioner spent some
Eight Hundred Twenty Thousand and nO/100 Dollars ($820,000.00)
for the purchase of the entire tract of approximately One Hundred
(100) acres of which two (2) unplatted parcels, "A" and "B" (of
approximately ten (10) acres located adj acent to the existing
highway were excluded from this petition) but no portion of the
original purchase price was attributed to the purchase of the
excluded parcels "A" and "B".
13. The testimony was that the majority of the tract
in question was and is wetlands and is currently zoned
N.A. (Native Area).
14. There was a failure of proof by the Petitioner as
to what amount of "investment-backed" investment formed
applicant's reasonable expectation for development, upon which
relief could be granted, had all other standards for relief been
met.
15. The Hearing Officer finds there was no "reasonable
expectation" for development by the applicant, given the failure
and/or inability of the Petitioner, or his witnesses, to address
any reasonable expectation for the granting of permits to
construct this project as platted immediately prior to
institution of this plan.
16. This Hearing Officer finds that it was not
"reasonable" for the Petitioner to have relied upon the Lewin
letter of August 21, 1979, Exhibit 5, in light of the enactment
of the plan and the state and federal permitting requirements
present in 1986 notwithstanding the platting of the acknowledged
wetlands prior to the time of purchase by this Petitioner.
17. The Petitioner is and was faced with the
unavoidable fact that construction of the platted subdivision has
always been unpermitted, the subj ect land was and is wetlands,
and there has never been a reasonable expectation to permit
building in/on this land reasonably prior to or after enactment
of the plan.
18. This Hearing Office is further unable, based upon
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this record, to determine the minimum value to assign to
Petitioner's claim to constitute forty percent (40%) of the
investment-backed value immediately prior to the effective date
of the plan.
19. The Petitioner has had an offer to purchase this
property, Exhibit 11, which, if still valid, certainly
demonstrates current value after the enactment of the plan.
Whether or not this is "reasonable" based on this record in left
in doubt and this Hearing Officer will not speculate as to
whether this is "nominal" or not, based on the expectations of
the Petitioner.
CONCLUSION
The Petitioner has attempted to split possible causes
of action and seeks substantial reward based on his investment
while retaining choice highway frontage parcels which are
basically unplands while declaring the adj acent wetlands of no
value, Unfortunately, the record is devoid of allocations of
that "investment" to the applicable tracts for which relief is
sought. Further, comparisons for value can not be fairly based
on permitted tracts or projects versus undeveloped and
unpermitted tracts notwithstanding the fact that they have been
platted. The act of platting does not guarantee the permitting
necessary to carry out the intentions of the plat and the current
Land Use Plan makes not such guarantees. Wetlands, before and
after the enactment of the current land use plan, precludes any
reasonable expectation of permitting for building, and was
certainly there within the year 1986. What construction was done
in the 1950's, 1960's or 1970's can not reasonably form an
expectation for the 1980's, or to date, in view of environmental
concerns and regulations imposed throughout the County, the State
and even the nation during the past decade. While great sympathy
is given this landowner, this Hearing Officer does not believe
that Petitioner herein has carried his evidentiary burden by
having proven all to the standards required by 9.5-172(1) a-d, or
having provided a basis for award under 9.5-172(2), had the
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standards been met.
ORDER
Based upon the foregoing facts, evidence, record of
trial, exhibits and arguments of counsel, this Hearing Officer
finds the Petitioner, JAY GLYNN, is not entitled to an award of
monetary damages in this application for compensation for the
alleged denial of beneficial use of his property.
This record
does not support a specific finding that all beneficial use was
denied applicant by the enactment of the current Land Use Plan or
for the basis for an award, if such finding had been made, based
upon this record.
DONE AND ORDERED this
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5::"- day of February, 1990, in
Key West, Monroe County, Florida.
Copies to: Honorable John stormont, Mayor, Monroe County
Capt. Tom Brown, County Administrator
Mark Hanson, Esq, Assistant County Attorney
Richard H.M. Swann, Esq., Attorney for Petitioner
Lucien C. Proby, Jr., Esq., Attorney for Petitioner
Howard Tupper, Building Official
Donald Craig, Head of Growth Management Department