Resolution 348-2002
County Attorney
RESOLUTION NO. 348 -2002
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, EVIDENCING THE BOARD'S APPROVAL OF A
RECOMMENDED BENEFICIAL USE DETERMINATION PROMULGATED BY
THE SPECIAL MASTER, IN RE: THE APPLICATION OF HELEN H.
EMMERT
WHEREAS, on January 4, 1996, the Monroe County Year 2010 Comprehensive Plan
became effective; and
WHEREAS, the application of HELEN EMMERT for determination of beneficial use was
heard by Special Master John J. Wolfe on November 8, 2001; now therefore
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE
COUNTY, FLORIDA, that:
The Findings of Fact, Conclusions of Law and recommendations of the Special Master
as set forth in the Proposed Partial Grant of Beneficial Use on the application of HELEN
EMMERT, are hereby APPROVED, subject to the conditions listed in the attached Proposed
Beneficial Use Determination, dated May 23, 2002.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida, at
a regular meeting of the Board held on the 21st day of August, 2002.
Mayor McCoy
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BOARD OF COUNTY COMMISSIONERS
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BENEFICIAL USE
MONROE COUNTY SPECIAL MASTER
In Re: Helen H. Emmert
Beneficial Use Application
/
PROPOSED
PARTIAL GRANT OF BENEFICIAL USE
The application for a beneficial use detennination was considered at a duly noticed hearing
on November 8, 2001, before John J. Wolfe, designated Beneficial Use Special Master for Monroe
County. Andrew M. Tobin represented the Applicant. Karen K. Cabanas represented Monroe
County. Having reviewed and heard all evidence presented, testimony of witnesses and arguments
of counsel, the undersigned Hearing Officer makes the findings of fact and conclusions of law and
proposes the detennination as set forth below.
ISSUE
Whether the Applicants have been denied all reasonable economic use of their property by
application of Policies 204.2.1 and 203.1.3 of the Year 2010 Comprehensive Plan (the "Plan"), and
whether the Applicants are entitled to relief under Policy 101.18.5 of the Plan and Section 9.5-173
of the Monroe County Code (the "Code").
Whether the additional effect of the Ocean Reef deed restrictions and building regulations
are to be considered which, in combination with applicable provisions ofthe Plan and Code, make
the subject property unbuildable.
FINDINGS OF FACT
1. The subject property is located at Harbor Course, Section Four, Ocean Reef, Plat
No. 13, Lot 26, Block 3, RE#0573670-002600 (the "Lot"), and is within an Improved Subdivision
(IS) land use district with a future land use designation of Residential Medium (RM). The Lot is an
approximately 24,000 square foot wedge-shaped parcel and has existing homes on each side.
2. In 1988, the Ocean Reef Club on behalf of its members applied for a positive
detennination of vested rights to complete the remaining development contemplated by the 1977
Master Plan of the Ocean Reef Club.
3. The Ocean Reef Master Development Plan was fonnally vested under Resolutions
539-1988 and 478-1988. The Monroe County Board of County Commissioners detennined that the
1977 Master Plan should be vested "by use and density categories in existence, prior to September
15, 1986." This vesting did not exempt Ocean Reef properties from regulations promulgated to
protect environmental resources.
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4. Applicant purchased the Lot in 1983, believing the Lot was buildable. At the time of
purchase, there were no regulations that would have prevented Applicant from filling the Lot or from
constructing the home depicted on the site plan introduced by Applicant at the hearing, and
previously submitted to the Planning Department.
5. On March 23, 1999, County Biologist Jeanette Hobbs prepared a Letter of Current
Site Conditions which described a majority of the Lot as saltmarsh and buttonwood wetlands. Policy
204.2.1 of the Plan, adopted January 4, 1996, requires a 100% open space ratio for undisturbed
saltmarsh and buttonwood wetlands. Attached to her letter was a sketch showing the buildable area
of the property partly within the hammock area located near the front of the Lot.
6. The 100% open space requirement results from the wetlands on the Lot being
considered "red flag" wetlands. The wetlands have been characterized as "undisturbed", though the
testimony demonstrates that they are isolated wetlands in that an area of fill exists between such
wetlands and the dredged canal known as Dispatch Creek located at the rear ofthe Lot. The County
permits development with mitigation in wetlands areas other than "red flag" wetlands. The Florida
Department of Environmental Protection and the U.S. Army Corps of Engineers would typically
allow some development in these wetlands with appropriate mitigation.
7. Pursuant to the Applicant's request, on November 14, 1999, a pre-application letter
of understanding was prepared by County Planning Director Marlene Conaway which concluded that
due to the inability to fill "red-flag" wetlands under the Code and the setback requirements, only "an
odd shaped, small upland area within the hammocks habitat at the eastern edge of the property is
available for development. This irregular area consists of approximately 1 ,800 square feet.". The site
plan introduced by Applicant at the hearing was rejected because 2/3 of the site plan was in the
saltmarsh and buttonwood area.
8. On July 19, 2001, Mr. Tobin, on behalf of applicant, submitted a wetland mitigation
proposal prepared by Robert Smith, which proposed filling a portion ofthe wetlands on the Lot "in
exchange for creating a functional mangrove wetland habitat on the filled and disturbed area adj acent
to the canal on a 2: 1 basis" (the Mitigation Proposal"). The Mitigation Proposal was submitted at
the hearing, but continued to be unacceptable to the County based on the prohibition against filling
"red-flag" wetlands and other reasons testified to by Jeanette Hobbs.
9. The Lot is subject to the following private deed restrictions and building regulations
which are administered by the Ocean Reef Homeowners Association and its Architectural Review
Committee, to wit: a) the minimum size ofthe first floor must be 1,400, square feet, exclusive of
porches, planters, garages, and patios; b) a minimum roof overhang of 2 feet is required; c) no
porches or patios along a side of a structure that abuts an adjoining residence or lot; d) a front
setback of28 feet; e) a front setback above 12 feet must have a 12: 12 setback slope; f) a side setback
of 18 feet; g) a side setback above first 12 feet must have a 12:12 setback slope. No fences or
obstructions are permitted in the building setback areas.
10. Under Monroe County's Land Development Regulations ("LDRs") and the Plan, the
Lot has a buildable area of approximately 1,800 square feet.
11. Monroe County, through this process and pursuant to Section 9.5-173(a)(2) of the
Code, has agreed to partially grant the Applicant Beneficial Use in order to expand the buildable area
of the Lot to approximately 2,300 - 2,500 square feet ("The Revised Buildable Area"), by allowing
the following:
1. With specific stormwater management measures, as set forth in the
8/21/2000 letter from Tim McGarry and pursuant to Policy 203.1.3
ofthe Plan, the 50-foot wetland setback may be reduced to 10 feet.
2. Reduction of the front yard setback to 15 feet from the required 25-
foot front yard setback.
3. The Applicant may clear 40% of the 5,459 square foot hammock
area.
12. The Ocean Reef Community Association's ("ORCA") regulations require the
Applicant to maintain a 28-foot front yard setback.
13. Due to the location of the wetland and hammock areas on the Lot, a substantial
portion of the Revised Buildable Area is located within the ORCA-required 28-foot front yard
setback.
14. According to the testimony of David Ritz, the ORCA Community Administrator,
the Architectural Review Committee is responsible for reviewing all plans for conformance with the
restrictions and building regulations at Ocean Reef. Mr. Ritz testified that when he learned about the
County's proposed site plan showing approximately 2,300 square feet of buildable area, he polled
the Architectural Review Committee and was informed they did not believe a variance was available.
Mr. Ritz noted in a letter dated June 27, 2001, that nine of the most recent built homes in Ocean
Reef had an average size of 4,333 square feet of enclosed space. Mr. Ritz did not believe that the
County's proposal was acceptable to ORCA given the design standards of other homes and the
community character of Ocean Reef.
15. Due to the vested rights of Ocean Reefand its unique circumstances as set forth in
various County documents submitted at the hearing, the County has in the past consistently
attempted to render determinations giving deference to the 1977 Master Plan.
16. The combination ofthe application ofthe applicable provisions of the Plan and Code,
primarily the County's prohibition of any development in "red flag" wetlands, together with the
application of the ORCA restrictions and of building regulations, primarily the setback requirements,
make the Lot unbuildable.
CONCLUSIONS OF LAW
17. Policy 101.18.5, provides that neither the provisions of the Plan, nor the LDR'S
shall deprive a property owner of all reasonable economic use of a parcel of real property which is
a lot or parcel of record as of the date ofthe Plan. This policy further provides that a property owner
may apply for relief from the literal application of applicable land use regulations or of the Plan
when such application would have the effect of denying all economically reasonable use of that
property unless such deprivation is shown to be necessary to prevent a nuisance or to protect the
health, safety and welfare of its citizens under Florida Law. All reasonable economic use is defined
as "the minimum use of the property necessary to avoid a taking within a reasonable period of time
as established by current land use case law".
18. Section 9.5-173 of the Code implements the procedure contemplated by Policy
101.18.5 and provides that in order to establish an entitlement to Beneficial Use relief an Applicant
must demonstrate that "the Comprehensive Plan and land development regulations" deprive the
Applicant of all reasonable economic use of the Lot.
19. As is made clear by Policy 101.18.5, the standards applied to determine whether a
regulatory taking has occurred are constitutionally based as set forth in current land use case law.
This subject has been addressed by the U.S. Supreme Court in a number of cases, but there are two
notable cases applicable to the facts presented here. Both cases involved landowners who claimed
that they had been deprived by government regulation of all economically beneficial use of their
property.
In Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed. 798
(1992), the property owner had purchased two ocean front lots to build single family homes. Two
years later all development on the lots was prohibited by South Carolina's Beachfront Management
Act. The Court confirmed the standard that when government regulations deny all economically
beneficial or productive use ofland, the property owner is entitled to compensation as a taking. In
the Lucas case clearly all use was prohibited.
In Palazzolo v. Rhode Island, 533 U.S. 606, 121 S.Ct. 2448, 150 L.Ed. 2d 592 (2001), the
property owner had purchased approximately 20 acres of land for development. Many years later,
but prior to development, regulations promulgated by the Rhode Island Coastal Resources
Management Council designated salt marshes of the type on the Palazzolo property as protected
coastal wetlands and significantly limited development. When his development project was turned
down, the property owner sued alleging a taking under the Lucas standard. In that case, a portion of
the land was still developable, which was ascertained to have $200,000 of development value. While
this was significantly less than the development value ofthe parcel as a whole, the Supreme Court
upheld the Rhode Island Supreme Court's holding that all economically beneficial use was not
deprived. Id at 630.
20. Applying the above standard to the facts presented herein of the Code, it has to be
concluded that The Plan and LDRs in effect at the time the Applicant filed the subject Beneficial
Use Application do not deny the Applicant all reasonable economic use ofthe Lot. Applicant could,
without consideration ofthe ORCA restrictions, construct a residence of approximately 1,800 square
feet. However, under Section 9 .5-173( a)(2) and through this proceeding, Monroe County has agreed
to partially grant the Applicant Beneficial Use relief as set forth in Paragraph 11 above, in order to
provide additional reasonable use ofthe Lot.
21. The relief granted herein provides the Applicant a 2,300-2,500 square foot Revised
Buildable Area and said Area constitutes a reasonable economic use of the Lot.
22. ORCA's deed restrictions and building regulations are reasonable and serve as
legitimate private planning devices of the developers and owners of Ocean Reef property. However,
while the Applicant may be prohibited by ORCA from building within the portion ofthe required
28-foot front yard setback otherwise permissible by Monroe County, that deprivation of use is not
caused by the Plan or LDRs. Consequently, the restrictions imposed by ORCA cannot serve as a
basis for Beneficial Use relief.
PROPOSED DETERMINATION
As stated above, under existing law, I have to conclude that the Applicant has not been
denied all reasonable economic use ofthe Lot. However, with the combination of the Plan and Code
provisions and the ORCA restrictions, the Lot will almost certainly be unbuildable. This result is
due to the restrictive provisions of the Plan which prohibit all development in "red-flag" wetlands
and which do not distinguish between isolated small wetlands surrounded by developed lots in a
long planned and developed subdivision versus larger tracts of high quality "red flag" wetlands. This
is a policy determination contained in the Plan and due to the fact that some, and more than a token,
reasonable economic use of the Lot remains, it is beyond the scope of authority granted to a
Beneficial Use Special Master to go beyond the confines contained therein.
Based upon the above Findings of Fact and Conclusions of Law, I recommend to the Board
of County Commissioners that a final beneficial use determination be entered partially granting
Applicants' beneficial use application in accordance with the relief set forth in Paragraph 11 above.
DONE AND ORDERED this 23rd day of May, 2002.
John J. ,
Speci