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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 o rt'\ en~reddDY the Hearing Officer, resolving the beneficial use claim of _ E: C L. -.J LL. N N 0:: ~ ~ ._L :-""0 :.::.-l a::: .;;: :z; C.:) 0 L - ,f" 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 1 l 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. 2 / I 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. 3 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 4 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 5 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 r# 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