Resolution 096-2010
County Attorney
RESOLUTION NO. 096 - 2010
A RESOLUTION OF THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, APPROVING THE SPECIAL MAGISTRATE'S
RE(~OMMENDED ORDER REGARDING THE BENEFICIAL USE
DETERMINATION APPLICATION OF GERALD AND KATHERINE
WALSH, AND DENYING THE RELIEF SOUGHT BY APPLICANTS.
WH'EREAS, Gerald and Katherine Walsh ("Applicants") filed an application for a
Determination of Beneficial Use ("BUD") on September 2, 2008; and
WH.EREAS, the BUD application was referred to a Special Magistrate as provided in
Section 102-106 of the Monroe County Code; and
WHEREAS, the duly appointed Special Magistrate, John G. VanLaningham, held an
evidentiary hearing on October 29, 2009; and
WHEREAS, the Special Magistrate issued a Recomlllended Order with recommended
Findings of Fact and Conclusions of Law on December 10, 2009; and
WHEREAS, the Board of County Commissioners has the final authority to grant or deny
beneficial use relief subject to appeal by the Department of Community Affairs under Chapter
380, Florida Statutes as provided in Monroe County Code, Section 102-108; and
WHEREAS, in approving, modifying, reversing, or approving with conditions a
Recommencled Order from a Special Magistrate, and granting or denying an applicant beneficial
use relief: the Board of County Commissioners will ensure that the Special Magistrate has
conducted t.he evidentiary hearing in a manner that is consistent with Momoe County Code,
Section 102,.106; and
WHEREAS, the Board of County Commissioners will approve, modify, reverse, or
approve with conditions a Recommended Order from a Special Magistrate during a public
hearing as provided in Monroe County Code, Section 102-108; and
WH:EREAS, the Board of County Commissioners makes the following Findings of Fact:
1. The Board of County Commissioners finds from the record that Special
Magistrate Jolm G. Van Laningham conducted the BUD hearing on October 29, 2009, and said
Special Ma~~istrate issued his written Recommended Order on December 10, 2009.
2.. The Board further finds that the Special Magistrate conducted the evidentiary
hearing in a manner consistent with Section 102-106, Momoe COlUlty Code, and the Year 2010
Comprehensive PlatL A copy of the Special Magistrate's Recommended Order is hereby
appended to, and made a part of: this Resolution.
3. The Board of County Commissioners hereby APPROVES the Findings of Fact
numbered 1 through 12 as contained in the Recommended Order of the Special Magistrate and
ADOPTS the Findings of Fact as the findings of the Board.
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WH~EREAS, the Board of County Commissioners makes the following Conclusions of
Law:
The Board of County Commissioners hereby APPROVES the Conclusions of Law of the
Special M~gistrate numbered 13 through 22 as contained in the Recommended Order and
ADOPTS tIle Conclusions of Law as the conclusions of the Board; and
WB:EREAS, the Board wishes to accept the recommendation of the Special Magistrate
as proposed in his Recommended Order; now therefore:
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, FLORIDA, as follows:
That the Board of County Commissioners hereby approves the Recommended Order
dated Decernber 10, 2009, made by the Special Magistrate and adopts it as the fmal decision of
the Board. IThe final decision is denial of the relief sought by Applicants in their application for
a BUD.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florid~ at a regular meeting of the Board held on the 17th day of March, 2010.
May'or Murphy
MaJ'or Pro Tem Carruthers
Commissioner Di Gennaro
Commissioner Wigington
Commissioner Neugent
Not: Present
Yes
Not Present
Yes
Yes
BY~('.~
Deputy Clerk
By
(SEAL)
Attest: DANNY L.KOLHAGE, Clerk
Mayor Sylvia Murphy
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. State of Florida e
DiVision of Administrative Hearings
Charlie (;rJst
(,o"rmor
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Harry L. HCJnpe r
Dt"put), Ch ief
Administrativt: Law Judge
Robl~I"t S. Cohen
Director and Chief Judge
Claudia Llad6
Clerk of thco DivisIon
AE~~\iea~l3Im5
December 101 2009
Townsley Schwab, Senior Director
Planning and Environmental Resources
Maratllon Government Center
2798 ()verseas Highway, Suite 400
Marat)b.on, Florida 33050
OEC I 4 2009 ,.r!
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GOOum\ tMl\f\GEMOO DMS\ON
Re; ClERALD AND KATHERINE WALSH vs. MONROE fC0UNTY FLORIDA,
(~ase No. 09-6381
Dear fr1r.. Schwab ~
I~nclosed is my Recommended Order in the referenced case.
Also E~nclosed are the Petitioner's Bxhibits numbered 1-2 and the
RespOIldent's Exhibits numbered 1-2. Copies of thfs letter will
serve to notify the parties that my Recommended Order and the
hearirlg record have been transmitted this date.
Sincerely,
JOHN G. VAN LANINGHAM
Administrative Law Judge
JVL/ld
EnclOS1Llres
cc: Lisa Granger I Esquire
Gc~rald and Katherine Walsh
TIle- DeSoto BUddIng. J 230 ApaJadu~e Parkway. TallahBS~N" Florida 32399-3060
Admfnl~tratJve Law (8501 488-9675 . SUNCOM 278-9675 . Fa.'t Filing (850' 9"2] 68"17
Fax SUNCOM 291-6847. Judges of Compensation CJaims (850) 487-1911
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BEFORE THE CODE ENFORCEMENT SPECIAL MAGISTRATE
JOHN G. VAN LANINGHAM
MONROECOUNT~FLOmDA
GERAJLD AND KA THERlNE WALSH, )
)
Petitioners, )
)
VB. ) Case No. 09..6381-
)
MONR4JE COUNTY FLORIDA, )
)
l~espondeDt. )
)
RECOMMENDED ORQER
This case was heard at publio bearing before the Code EnfOrcement Special Magistmte
on October 29, 2009, as scheduled, at the Monroe CoMty Government Regional Center, located
at 2798 Overseas Highway, Marathon, Florida. Petitioners presented two witnesses, namely
themselves, Mr. and Mrs. Walsh. In addition, Petitioner's Exluoits I and 2 were received in
evidence. TestifYing ~n behalfofRespondent were: Tiffany Stankiewicz, Development
Administrator; Timothy Douma, Biologist; and Townsley Schwab, Director of Planning and
EnviromnentaJ Resources. Respondent's Exhibits I and 2 were admitted info evidence as well.
Having fully considered the evidence presented at hearing; and having considered the
parties' respective proposed recommended orders, whicb were timely filed in accordance with
the deadline established at the conclusion of the hearing, the fullowing findings offact and
conclusions of law are made:
FINDINGS OF FACT
I. Petitioners Gerald and Katherine Walsh (collectively, "Walsh") are the owners of
record of property located at Block 10, Lot 15, Sexton Cove Estates, Key Largo, Florida (the
"Property"). The Property, which bears Rear Estate Number 00532701-026800, is situated
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within Monroe County (the "County"), and accordingly is subject to the County's land use and
development regulations.
2. The Property is a waterfront lot containing a mobile home, \vhich is a single-family
residence. The mobile home was placed on the lot in or around 1970; thus, it was there when
Walsh purchased the Property in 1989. The mobile home is not Walsh's primary residence; it is
used as a vacation home.
3. Some time after purchasing the Property, Walsh built a screened porch on the front of
the mobil~= home, facing the water. This construction was undertaken without a permit.
4. Walsh added the porch to provide additional space, which the family uses as a dining
area. The porch is an amenity that enhances the utility of the mobile home for the Walsh family
to such an ex.tent that, according to Walsh, the family's use and enjoyment of the Property
actually dc=pends on the porch.
5. 111 February 2008, the County cited Walsh for having constrocted the porch without a
permit, in violation of the County's building code. This citation initiated an enforcement action,
which proc~eded to hearing before the Special Magistrate on April 24, 200~.... The Special
Magistrate: found that Walsh had violated two separate Monroe County Codes and ordered that
the Property be brought into compliance. Walsh did not appeal the final order of the Special
Magistrate.
6. :Shortly after the Special Magistrate issued his final ordert the County infonned Walsh
that, to cure the violations, Walsh would need to apply for and obtain either an after-the-fact
permit for the porch, which \youfd authorize the continued existence of the structure, or a
demolition permit authorizing the removal of the porch. On June 25, 2008~ Walsh applied for an
after..the- fa,ct permit
7. J3y letter dated August 11, 2008, the County's Planning and Environmental Resources
Department notified Walsh that the application for an after-the-fact pennit had been denied. The
County gave multiple reasons for refusing Walshls application, including the failure of the porch
to meet the Countys shoreline setback requirements. The letter notifying Walsh of the County's
decision in10nned Walsh of the right to appeal the County's decision by submitting a completed
appeal faml within "30 working days. It
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8. Walsh elected not to appeal the denial of the application tOr an after-the-fact permit.
Instead, on September 2, 2008, Walsh submitted an application for a determination of beneficial
use~ gJlving rise to the instant proceeding.
9. The evidence shows, and the undersigned finds, that if Walsh were required to
demolish the porch to bring tbe Property into compliance with the County's codes, an outcome
which is the logical ramification of the decision to deny an after-tbe-mct permit ror the structure,
then the Walsh filmily's use and enjoyment of the Property would he curtailed because the large,
extended Walsh family would no longer be able to dine together on the porch. The inability of
the Walsh fiunily to USe the Property in the manner to which they have become accustomed, and
in accordance with their desires, no doubt would be a grave disappointment, to say the least, and
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probably a source offtustration and anger too, all Dfwhich likely Would make the Property less
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attractive and less valuable to the Walsh family.
10. Nevertheless. the evidence presented at bearing is insufficient to establish that the
County's denial of Walsh's application for an after-the-fact permit respecting the porch
constitutes a deprivation of aU. or substantially alt economic, beneficial, or productive use of the
Property. There is no persuasive evidence concerning the objective dUniOution in the Property's
value, if any, that the removal of the porch wou.ld cause, and thus no basis for a determination
that such diminution would be "substantialft relative to the PropertY'S fair market value as a
whole. There is, further, no evidence that the County's decisions have interfered materia1Jy with
Walsh's reasonable expectations, ifany, concerning the return on an investment .in, or involving,
the Property. Finally, there is no evidence that the regulations behind the County's decisions,
which regulations adjust the benefits and burdens of property ownership, were intended for some
purpose or purposes other than the promotion of the common good..
11. There is evidence, however, to sUPJX>rt the finding, which the undersigned hereby
makes, that if the screened porch were removed, the Property still could be used as a waterfront
residence or vacation home, as it was when Walsh purchased the Property, because the mobile
home can lawfully remain in its present location regardless of what happens to the porch. The
undersigned detennines, as a matterofuJtimate met, that such use would constitute a substantial
economic, beneficial, or productive USe of the Property.
J 2. Walsh argues that the County's detennination that the porch violates sefback
requirements is in error. The undersigned declines to make any findings of fact regarding this
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particular contention because he concludes, as set forth below, that the purpose of this
proceeding is not to review the correctness (on the merits) of the final decision that allegedly has
resulted in a taking of property; Walsh could have appealed the decision had he wanted such a
review. 'The goal here, rather, is to determine \vhether the COWltyts decision effectively has
caused an unconstirutional taking of property. The question at hand, in other words, is not
whether Ithe County was right to deny Walsh's application for an after-the-fact permitj but
whether l:he denial would cause such a deprivation as to be an unconstitutional taking ofWalshts
Property (absent compensation).
CONCLUSIONS OF LAW
13. The undersigned, as Special Magistrate, has jurisdiction to conduct a hearing on an
applicati()D for a beneficial use determination and to make a recoinmendation to the County's
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Planning Director regarding whether relief is appropriate. See MARATHON COUNlY, FLA.,
CODE art. IV, div. 1 ("CODE~). g 102-106 (2009).
14.. It was "the purpose and intention of the county commissioners," in adopting the
ordinanc~=s establishing the right to obtain a beneficial use determination. tljO ensure that each
and every landowner [would have] a beneficial use of his property in accordance with the
requirem4~nts of the Fifth and Fourteenth Amendments to the United States Constitution and to
provide a procedure whereby landowners wbo believe they are deprived of all beneficial use
may secure relief through an efficient nonjudicial procedure. 11 CODE fi 102...79. Tbe beneficial
use detennination ("BUDlf) process affords a nonjudicial forum for the resolution of ua
landowner's claim that a land development regulation . . . has had an unconstitutional effect OD
property. . . . tt CODE fi l02-103(b). When, "after a fmal decision or action by the county,.r a
"landowner is of the opinion that the adoption or application of a county land development
regulatioll: . . . has caused a taking of the landowner' 5 property," the landowner must exhaust
his administrative remedies in a BUD proceeding uprior to seeking relief from the courts. 11
CODE fi 102-102.
15. As the applicant~ Walsh has the burden of proving, by a preponderance of the
evidence, that relief is appropriate. See CODE g l02-109(b).
16,. The standard of decision in a BUD proceeding is set forth in Section 102-109 of
the CODe as follows:
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In furtherance of the purpose and intent of this divisiont . . .
relief under this division may be granted where a court of
competent jurisdiction likely wouJd determine that a final action
by the county has caused a taking of property and a judicial
finding of liability would not be precluded by a cognizable
defense, including Jack of investment-backed expectatioDSt
statutes of JimitatiODt Jaces, or other preclusions to relief.
Whether sucb liability, at the time of application under rhis
division, Jikely to be established by a court should be detennined
based on applicable statutory and case law at the time an
appl ication is considered under this division.
17 ~ As the foregoing provisions of the CODE make clear, the ultimate issue to be
determined in a BUD proceeding is whether the County's adoption or application of a land use
regulation has so narrowed the landowner's range of interests ~ his private property as to
constitute a II regulatory taking II of the property, which would be constitutionally impermissible
unless the government were to compensate too landowner for his loss. Neither the wisdom of
the land use regulation, nor the rightness of its application in a particular situation, is an issue
in a BUD proceeding~ In light of these conclusions, the undersigned has declined to reach
Walsh's contention that the County misapplied the shoreline setback requirements vis-A-vis the
Propel'tJ" .
18. In general, an intensive factual inquiry is necessary to answer the question of
whether a regulation "goes too far" and constitutes a taking. See, ~ Lucas v. South
Carolina Coastal Council, 505 U.S. 1003. 1014-15, 112 S. Ct. 2886, 2893, 120 L. Ed. 2d
798, 812 (1992). There are, however, "two discrete categories of regulatory action [that the
U.S. Supreme Coon has described] as compensable without a case-specific inquiry . . . ." Id.
at lOIS, 112 S. Ct. at 2893, 120 L. Ed. 2d at 812. The ffest involves "regulations tIlat compel
the property owner to suffer a physical 'invasion' of his property." rd. The second set of ~r
Sf: unconstitutional takings comprises situations where the "regulation denies aU economicaUy
benefICial or productive use of the land." Id., 112. S. Ct at 2893. 120 L. Ed. 2d at 813.
Claims that fall into one or the other of these categories are sometimes referred to as
"categoricaJ" or "facial1t takings.
19. Walsh neither asserted nor attempted to prove that the County has physically
invaded the Property. Moreover, as the findings above show, while the County would deprive
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Walsh of' a particular amenity (the screened porch)1 it otherwise would leave alone the Walsh
family's :rights to use and enjoy the Property as a waterfront vacation home. Such an outcome
would not be a trivial deprivation (0 the Walsh family, which prizes the porch~ but neither
would it ~M1l0unt to a total deprivation of aJI beneficial or productive use of the Property. It is
concluded. therefore. that the instant case does not involve an alleged "categorical" taking.
20. Walsh's claim is best understood as assening an .'as...apptied" taking, in which ttthe
landowner challenges the specific impact of the regulation on a particular property. II Shands v.
City of Marathon, 999 So.. 2d 718, 723 (Fla. 3d DCA 2008). The standard for decision in a
case invollving an alleged as-applied taking is ftwhether there has been a substantial deprivation
of econol11ic use or reasonable investment-backed expectations." Id. (emphasis in original).
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lbis standard differs from the more stringent, total deprivation stmdard applicable in facial
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takings cases, but it is nevertheless a difficult one to meet because tt [p] roof of a substantial
deprivation 'requires a fact-intenSive inquiry of the impact of the regulation on the economic
v iabiIity of the landownerl s property by analyzing permissible uses before and after the
enactment of the regulation. '" Golf Club of Plantation.. Inc~ v. City ofPlantatioD, 717 So. 2d
166, 169 (Fla. 4th DCA 1998) (quoting Tavlor v. Village of North Palm Beach) 659 So. 2d
1167,1111 n.l (Fla. 4th DCAl995)).
21., The fact-fmder in an as..applied claim should consider several factors that the U.S.
Supreme (;ourt bas identified as having "particular significance." Penn Central Trans". Co. Y.
New York: City, 438 U.S. l04~ 124, 98 S. Ct.. 2646. 2659, 57 L. Ed. 2d 631, 648 (1978). As
the Court 4Jbserved in Penn Central,
The economic impact of the regulation on the claimant and
particularlYt the extent to whicb Ihe regulation has interfered with
distinct investment-backed expectations arell of course, relevant
considerations. ... So. too, is the character of the
governmental action. .. .. , [which will not readily be deemed a
"taking" when] interference [with the property] arises from some
public program adjusting the benefits and burdens of economic
life to promote the conunon good.
Id.
22. The undersigned considered these factors in evaluating the evidence presented and
found, as s~~t forth above, that the evidence was insufficient to establish a substantial
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deprivation under the Penn Central framework. Based on the existing record, therefore, it is
concluded that a court of competent jurisdiction would not likely determine that the County has
caused a taking of Walshfs property. Accordingly, relief is not appropriate in this instance6
Based on the foregoing Findings 0 f Fact and Conclusions of Law, it is
RECOMMENDED that Walsh not be granted relief
DON.E AND ENTERED at the Division of Administrative Hearings, TalJahassce~
Florida, this 10th day of December~ 2009.
JOHN G" VAN LANINGHAM
Code Enforcement Special Magistrate
COPIES FURNISHED:
Gerald and Katherine Walsh
9500 Northwest 37th Court
Coral Springs., Florida 33065
Lisa Granger, Esquire
Assistant Monroe County Attorney
1111 12th Street, 4th FIoo r, Suite 408
Key West, Florida 33040
Townsley Schwab, Senior Director
Planning and Environmental Resources
Marathon Government Center
2798 Overseas Highway, Suite 400
Marathon, Florida 33050
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· Department of ·
Environmental Protection
Jeb Bush
Governor
South District, Marathon Branch Offlce
2796 Overseas Highway, Suite 221
Marathon,. AorJda 33050-4276
. Telephone 305/289-2310
CoJleen M. Castille
Secretary
September 30., 2005
Mr. and Mrs. Gerald Walsh
9500 N.W. 371h Court
Coral Springs. FL 33065
Re: Monroe County,. ERP
File No. 44..0254392-001
Lt. 15t Bk. lO~ Sexton Cove
30 Sexton Cove RdL' Key Largo
Dear tvI... and Mrs. Walsh:
,
Thank you for your application to replace a stonn damaged dock w~th a 215 square foot
wooden dock in Florida Bay, Section 1, Township 61 South. Range 39 East, Monroe County. This
type of acti vi ty may requi re authorization for construction and operation of the- project (regulatory
authorization), unless otherwise exempt by statute or rule, and an authorization to use state-owned
submerged lands (proprietary autborization). Your request l1as been reviewed for both authorizations.
The authorizations you have been granted are listed below. Please read each section carefully. Your
project MAY NOT have qualified for both authorizations. If your project did not qualify for one Of
more of the authorizations, then that specific section will advise you how to obtain it. You may NOT
commence your project without both authorizations. If you change the project from what you
submitted, the autborization(s) granted may no longer be valid at the time of commencement of
the projed. Please contact us prior to beginning your project if you wisb to make any changes.
REGULA l:ORY REVIEW - APPROVED
Based on the information you sent to us, we have delermined that your project is exempt
from the need for an Environmental Resource Permit (ERP). You must comply with the cliteria
and limiting conditions in accordance with Section 4OE-4.051(3)(d), Florida Administrative Code.
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PROPRIETARY REVIEW - APPROVED
Your project Occurs on state..owned, submerged land and wilJ require autholization from the
Departmenllo use t/'ese lands for plivate purposes. The Department has reviewed your project as
described above and on the attached documents and/or drawings. and as long as the work performed is
located within the boundaries as described and is consistent with (he terms and conditions therein, we
fj nd your project qualifies for a consent to use slate-owned submerged lands. This consent is
conditioned upon acceptance of and cO':lpli~nce with the. aUached General Consent Conditions.
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Prlr1{ed on 'ecycl~d paper.
Pd~~l:t2
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· ~"plicalion No.: 44-0254392-001_
.- f\;1pJicant M.r. and Mrs. Gerald Walsh
Page 20f2
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A copy of your notice also ~JlS .beelJ sen\ [0 the U.S. Army Corps of Engineers (USACOE) for
review. The USACOE may re>Jl1ire a sepaiii rmit. Failure to obtain this authorization prior to
COllstruction could subjec~ou to enforceme action by that agency. For further infonnation, you
should contact the USACO at 305-526-718 J
Thj~~ notice constitutes final agency action and is subject [0 the provisions of Chapter 120., F.S.
If you have any questions, please contact me at the letterhead address, by telephone at
(305) 289-2310, or by email atJerry.Buckley@dep.state.O.us. When referring to this project, please
reference the file number listed above.
Sincerely t.
GKljgb
Enclosures:
Rights of Affected Parties
Notice of Determinatiun of Exemption
State Lands General Consent Conditions
21.
~
erry Buckley ,
Environmental Specialist n
Submerged LandJ and
Environmental Resource Program
cc: U.S. J\rmy Corps of Engineers, Miami
Bureau of Pub tic Lands Administration
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County of Monroe
Growth Management Division
Planning'" Environmental ResDurces
DeDarrmenr
2798 Overseas Highway, Suite 410
Marathon. FL 33050
Voice: (305) 289.1500
FAX: (305) 289..2536
Board of County ~ommlssloneFS
Mayor Charles U.Sonny" McCoy, Dist. 3
Mayor Pro Tern Mario DiGennaro. Disl. 4
Commissioner George Neugent. Djst. 2
Commissioner Di~ io Spehar1 Oist. I
Commissioner Sylvia J. Murphy, Dist. 5
,,,~ strive to j~ cllrlng, pr"fess;onol and fa;r
August 11, ,2008
Gerald and Katherine WaJsh
9500 NW 37th Court
Coral Springs, FL 33065
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RE: Pennit Application iJ. 08302374. After-the-Fact Screen Porch. Block 10, Lot 15, Sexton Cove Estates. Key
Largo:- Real Estate No. 00532701-026800
Dear Mr. and Mrs. Walsh.
The Planning and Environmental Resources Department has revicwed your after-the-fac1 application for a
screened porch on your above referenced property in Key Largo. Unfortunately, we are unable to pennit the
screened porch application as presented for the following reasons:
A site visit and a review of historical aerial photographs have detennined that this open water parcel was created
by fill and is not adjacent to a m8It1lUlde (dredgcd) canal. channel or basin. Monroe County Code (MCC) Section
349 Shoreline Setback, establishes development standards along such shorelines for principal structures, stating
specifically;
Sec. 9,,5-349(b) Principal Structures shall be set back asfo/lolVS:
(3) Along open water shorelines not adjacent to manmade canals, channels, or basins, and which
ha ve been altered by the legal placement of fill:
a. .And where a mangrove fringe of at least ten (10) feet in width occurs across the entire
shoreline of the property, principal structures shall be set back at least thirty (30) feet as
measured from the mean high water (MHW) line or the landward extent of mangroves,
whichever is further inland.
b. And where no mallgrove fringe exists. principal structw-es shall be set back at least thirty (30)
feet from the mean high ~ter (MHW) line, provided that native vegetation exists or is
planted and maintained in a ten (10) foot width across the entire shoreline as approved by the
county biologist. and is placed under conservation easement; otherwise, the setback shall be
fifty (50) feet as measured from the mean high water (MHW) line.
c. On infi1l1ots surrounded by signi ficant development where principal Structures are set back
less than fifty (50) feet from mean high water (MHW) or the landward extent of mangroves,
the director of planning and environmental resources may evaluate tile community character.
the presence or absence of environmental features. and the setbacks on adjacent developed
properties within two (2) parcels on either side of proposed development, and may allow
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principal structures to be set back as far as practicable or in line with adjacent principal
structures. In DO event sball the setback be less tban twenty (20) feet (emphasis added).
Since the existing mobile home does not meet any of tbe setbacks stated above but was placed prior to current
setback regulations, it is considered a legally nonconforming Structure. As such, MCC Section 9.5-144
Nonconforming Structures allows it to remain and undergo ordinary maintenance and repair. However, Section
9.5 -144( c) Enlargements and Extenslons states;
Nonconforming structures which are used in a manner conforming to the provisions of this chapter may
be enlarged or extended provided tbat the nOllc&bformlty is not furtber violated (emphasis added).
erefore) if the screened structure is considered a part of 1 an addition to the principal slrUcture, it cannot be
a proved due to the fact that it further violates the existing no confonning setback for principal StnJctures.
S ould the screened structure be considered an accessory to he principal strUcture, development is governed by
CC Section 9.5-349(c) Accessory Structures. which states, in part;
Accessory slructures within the shoreline setback shan be constructed at a foWl dati on height not to
exceed eighteen (t 8) inches above existing grade and shall meet the following design criteria:
(2) Along open water shorelines which have been altered. b)' the legal placement of fill. and where a
mangrove fringe of at least ten (10) feet in width occurs across the entire shoreline of the property
(or where native vegetation exists or has been planted in a ten foot width):
8. In no event sha)] the total, combined area of all structures occupy more than thirty (30)
percent of the shoreline setback
b.. Accessory Structures other than docks and erosion control strUctures shaU be set back a
minimum of fifteen (15) feet, as measured from the mean Ifigh water (MHW) line or the
landward extent of the mangroves. . .
Therefore, wbile compliance with the 30 percent coverage of aU structures in the shoreline setback is unknown.
since the screened structure exceeds the foundation limit of eighteen inches and the minimum setback requirement
of fifteen (15) feet, it cannot be approved as an accessory structure as built.
Additionally, MCC Section 9.5-349(f) Enclosed Structures and Gazebos states, in part:
Non.cnclosed gazebos must be detached from any principal structure on the parcel. . . Any gazebo within
the shoreline setback (30 feet in this case) shall not exceed two hundred (200) square feet in area and the
highest portion of the roof shall not be more than twelve (12) feet above grade.
It appears that the screened structure, if considered a gazebo, may exceed these size and height restrictions, and
therefore cannot be approved as such.
In summary. the screened structure, as built, cannot be approved for the fOllowing reasons:
1. If considered part of the principal structure, the screened slructure does not meet the minimum thirty (30)
or twenty (20) foot setbacks required by MCC Section 9.5-349 SnoreJine Setbacks
2. If considered part of the principal slructure, the screened Slructure further violates the nonconformity, as
prohibited in MCC Section 9.5.144 Nonconforming Structures..
3. If considered an accessory structure, the foundation height and setback is not in compliance with, and the
percent coverage may not be in compliance with. the limits set forth in MCC Section 9.5-349(c)
. Accessory Structures.
4. If considered an accessory gazebo, the structure exceeds the two hundred (200) square foot limit and the
twelve foot height limit ofMCC Section 9.5-349(f) Ene/o.fed Structures and Gazehos.
Alternatively, a screened structure could be permitted on the property provided that: the foundation does not
exceed eighteen (/8) inches above grade; the height does not exceed twelve (12) feet; the si2e does not exceed
f1
e
.
two hundred (200) squan: feel; the structure is set back from MHW at least fifteen (15) feet; and, the cumulative
coverage of all structures within the thirty (30) foot shoreline setback area does not e]tceed thirty percent (30%).
Should you wish to appeal this administrative decision, please submit a completed appeal fonn (enclosed) to each
of the following offices listed below within 30 working days of the receipt of this letter.
Planning Conunission Coordinator
Monroe County PJanning Department
Suite 400
2798 Overseas Highway
Marathon, FL 33050-2227
Roman Gastesi, County Administrator
Public Service Building
Wing m
5 I 00 College Rd.
Key West, FL 33040
rr you have any questions or need assistance, please do not hesitate to contact me.
Sin7ly,
/?,.,--::~~
Ralph Gouldy /
Senior Administrator, Environmental Resources
Monroe County Growth Management Division
(305) 289..2500
cc: Roman Gastesi, County Administrator
Andrew Trivette, Director of Growth Management
Townsley Schwab, Planning Director
Joe PaskaJik, Building Official
Dan Garp.s, Assistant Building Official
Timothy Douma. Biologist
Planning Commission Coordinator
1t
. eft "
g e'la.ld <'U rw at~4 rR 0'1.
clhto'tmy at Law
9500 N.W. 37TH COURT
CORAL SPRINGS, FLORIDA 330G5
BROWARD (954)765-9310
FAX {954}755.9294
August 19, 2008
Planning & Environmental Resowces Department
COWlty of lvlonroe
Growth Management Division, Suite 410
2798 Overseas Highway
Marathon, FL 33050
Re; AppJication for beneficial use determination
Gerald V. and Katherine A. Walsh
Pennit Application #08302374
ReaJ Estate No. 0053270 (..026800
Gentlemen:
We hereby apply for a beneficial use detennination under Article VI, Division 2.
Section 9.5-17] of the Monroe county Code for a screen porch that we added to our
mobile home in North Key Largo without a proper building penn it. An after-the..fact
building pennit was applied for but denied by letter dated August 11, 2008.
The improvement made to Ollr property is descrih~d a5: a non-en~losed Ba7~bo
constructed within the waterside setback and not attached to a principal structure
previously existing on the property. The improvement was inadvertently constructed
sJi&htly higher and slightly larger than the Code authorizes, and cannot be reasona6fy
modified to comply with the oarameters of the Code. ---
Contrary to the conclusion of the August II pennit deniaJ, the mobile home that
exists on the property conforms to applicable setback requirements, and in any event, the
improvement that is the subject to this application is not an enJargement or addition to the
principal structure. .
(U. ~ftJlItJe,.J-.{ 2
ICf
..
..
This is not an appeal of the administrative order, which denied a building pennitJ
because the improvement made to the property admittedly inadvertently exceeded the
height and size allo\ved by the Code.
We hereby ask that a beneficial use determination be made with respect to the
new con8trnctio~ because it improves the appearance of the mobile home, does not
detract from the appearance. use or occupancy of any adjacent property, and is
completely in keeping with the character of the neighborhood. In this regardt see the
attached pictures of the neighborhood. The enforcement of Code provisions in this
instance is not required to protect the health, welfare or safety of the Public or
neighboring property owners.
The inability to increase the size of the usable covered space ofa singlewide
mobile home is a clear deprivation of the economic value of the propertYt and the
Countyts demand that the improvement be destroyedt and co~ts and labor be wastedt
because the structure doesn!t meet arbitrary parameters is unreasonable.
~ .
We ask that an evidentiary hearing under Article VI>> Division 2. Beneficial Use
Section of the Monroe County Code be scheduled so that information can be presented
which will show the suitability of the structure within the neighborhood, and the
unreasonableness of the requ that the structure be demolished and costs incurred
because it doesn)t meet t e param ters. We ask that relief be granted wtder Section
9.5-173 of the Code.
Signed'
G= 11, ltoJJv
atherine A. Walsh
'b7>
To:
From:
Through:
Date:
Subject:
MEMORANDUM
MONROE COUNTY PLANNING & ENVIRONMENTAL RESOURCES DEPARTMENT
lYe strive to he cOTing, professional and/a;,.
Special Magistrate
TIffany Stankiewicz, De~ent Administrato~....6'.
Janis Vaseris, BiologistJV ,.
Tim Doumat Biologist
Townsley Schwab, Director of Planning & Enviromnental Resourcesr~
September 25 2009
Request for Beneficial Use for Gerald & Kathenne Walsh
Lot 15, Block 10, Sexton Cove Estates, Key Largo,
Real Estate No. 00532701.026800
1 I Requested Relief/Introduction
2
3 Gerald & Katherine Walsh (UApplicantsU)~ are requesting beneficial use for the property
4 described in Section II below that has a lawfully existing residential structure. Applicants are
5 seeking to have a gazebo constructed in the shoreline setback pennitted after..thc-fact. The
6 applicants desire the recision of the demolition order, the stop work order. and the granting of a
7 building pennit for the gazebo to complete the structure and make it bug proof.
8
9 Pursuant to Section 102-79 of the Monroe County Code ('~MCC"), the pmpose and intention of
10 the Beneficial Use Detennination (BUD) Ordinance is to "ensme that each and every landowner
11 has a beneficial use of his property in accordance with the requirements of the Fifth and
12 Fourteenth Amendments to the United States Constitution and to provide a procedure whereby
13 landowners who believe they are deprived of all beneficial use may secure relief through an
14 efficient nonjudicial procedure. n The BUD Ordinance "is not intended to provide relief related
15 to regulations promulgated by agencies other than the county or to provide relief from claims that
16 are not cognizable in court at the time of application. . .." ~ 102-103(b).
17
18 II LEGAL DESCRIPTION &. ZONING INFORMATION
19
20 Location: Lot 15, Block 10, Sexton Cove Estates, Key Largo, Real Estate No. 00532701.026800
21
22 Lot size: The lot is a irregular size of approximately 50 x 7St the land area based on the property
23 record card is 3,800 square feet.
24
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Land Use District Urban Residential Mobile Home District (URM)
PLUM: Residential High (RH)
Tier: 3
HI Property mstory
The Momoe County Property Appraisers Office based on archive records has given the property
an assessement for a mobile home since 1970.
Existing Use: Building Permit #28358 was issued for trailer tie down and trailer hook-up on
November 8, 1972.
The property was purchased by the current owners August 31, 1989 for $85,000.
The Monroe County Building Department records indicated Gerald V. & Katherine A. Walsh
have applied for two building permits.
t) Building permit application 05305661 was submitted on October 18,2005, for the
demolition of a 660 square foot mobile home, steps, & concrete ramp~ The permit was
issued January 9, 2006 and it subsequently expired.
2) The next Building permit application 08302374 was submitted 1une 25, 2008 for an after.
the-fact screened porch (wood). On August 11, 2008, Ralph Gotildy, Senior
Administrator;J Environmental Resources wrote a letter to the applicants indicating the
reasons the Department is unable to pennit the screened porch application. The letter
also, specified an alternative for pennitting a screened structure. The applicants had the
right to appeal the administrative decision ?lithin thirty (30) working days of the letter.
The applicants did not appeal the administrative decision made on August 11, 2008.
Instead, the applicant applied for Beneficial Use in order to have the after~the-fact
screened porch permitted. In February 2008, the applicant was cited by Momoe County
Code Enforcement for the wood strocture. Subsequently, the Code Enforcement Special
Magistrate found the applicant in violation as cited in Code Enforcement Case Number
CE08020010 on April 24, 2008, and imposed a lien on the property on August 28, 2008,
until the property is brought into compliance.
IV Environmental Background
The subject property is a scarified Jot with a mobile home and is located adjacent to Sexton
CoveJFlorida Bay. The site also contains areas of concretet gravel, sparse grasses, and areas
landscaped with non-native and invasive exotic vegetation. Non-native species observed were
Coconut Palm and Bouganvillea; invasive species include Brazilian Pepper, Oyster Plant, and
Mother..in-Law Tongue. There is a concrete boat ramp on the northern edge of the property and a .
concrete marginal dock along much of the remaining shoreline. An unpermitted wooden dock
constlUcted sometime between February 2006 and February 2007 extends from the marginal
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1 dock into Florida Bay. The mobile home is situated along the southwest side of the lot, five to
2 six ft from the southwest property line and approximately 15 feet from the shoreline. The
3 location of the mobile home does not meet the minimum shoreline setback, but was placed prior
4 to current setback regulations so it is considered a legally nonconfonning structure. The screened
5 structure in question is located directly between the shoreline and the mobile home. The
6 surrounding neighborhood is a mix of older legally nonconforming mobile homes and newer
7 confonning homes..
8
9 V RECOMMENDATION
10
11 Staff recommendation is denial of the requrested beneficial use relief; because Applicants already
12 have a beneficial use of their property with their permitted single-family dwelling unit, and the
13 application of the county's land development regulations or comprehensive plans have not
14 resulted in an unconstitutional taking oftbeir property. A residential use has existed on the
15 subject site since 1970. Denial of the after-the-mct permit for the gazebo does 'not deprive
16 Applicants all beneficial use of their property,
17
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