10/21/1998 Agreement
BENEFICIAL USE
MONROE COUNTY SPECIAL MASTER
In Re: Robert A. and Brenda D. Silva- Beneficial Use
Application
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FINAL
BENEFICIAI.I USE DETERMINATION
The above entitled matter was originally heard at a duly-advertised and regularly
scheduled, public hearing on August 13, 1998, by J. Jefferson Overby, designated
Beneficial Use Special Master. Brenda Silva, Applicant, represented herself and her
husband! co-applicant, Robert A. Silva. Assistant County Attorney Garth Coller,
Planning Director Timothy J. McGarry, and Environmental Resources Director Ross
Alliston represented Monroe County.
ISSUE
Whether the Applicants will be denied all reasonable economic use of their
property by application of Policies 203.1.3 and 204.24 of the Year 2010 Comprehensive
Plan, and whether the Applicants are entitled to relief under Policies contained in
Objective 101.18 of the Year 2010 Comprehensive Plan (as administered and
implemented in the "Agreement between the Department of Community Affairs and
Monroe County" dated February 23, 1998), the approved portions of Ordinance 052-1997
and the Monroe County Code.
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FINDINGS OF FACT
1. The Applicants purchased a one-half interest in the subject property in
September, 1994, and the remainder of the property in April, 1996, which is a lot of
record, located at Lot 5, Block 6, Winston Waterway #2 Subdivision, Monroe County
(RE# 00546760). The 5,280 square foot lot is zoned "Improved Subdivision" and is
currently vacant. The lot is characterized as "wetlands" and more specifically 90% of the
lot is "disturbed salt marsh".
2. The Applicants paid for and have received a Letter of Current Site
Conditions from the County Department of Environmental Resources on September 9,
1997 and a letter from the Department of Environmental Resources in January, 1998,
advising them that the subject lot is unbuildable.
3. According to the property appraiser, the 1997 assessed value of the
property was $50.00, after being assessed at $28,785.00 in 1992.
CONCLUSIONS OF LAW
4. The Applicant's lot is designated Improved Subdivision, which allows one
residential dwelling and accessory uses to be permitted on this lot, except for the changes
now occasioned by the 2010 Plan.
5. Application of Policy 203.1.3 of the 2010 Comprehensive Plan has
rendered the lot unbuildable.
A. As an Improved Subdivision lot the subject property has no TDR
value.
B. Development of a residential dwelling on the Applicants' lot is
prohibited, because the subject lot is of insufficient size (less than 17,424 square feet) to
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be in compliance with the setback requirements required under 2010 Comprehensive Plan
203.1.3.
C. The new comprehensive plan had the effect of reducing the TDR
value of the property to zero and the value of the property to $50.00.
D. There are no variances or other administrative options available,
because the current lot size would still render the property unbuildable.
6. Pursuant to Policy 101.18.5 and Section 4(D) of the Agreement between
DCA and Monroe County, the BOCC has considered:
A. the economic impact of the Policy (or regulation) that prohibits
development on the Applicants' lot which is . located within an Improved Subdivision; and
B. the extent to which the regulations have interfered with the
Applicants' reasonable investment-backed expectation that some use could be made of
this lot.
7. The lot is located within an Improved Subdivision that is partly developed.
8. A strict application of Policy 203.1.3 (wetland setback requirements) and
Policy 204.24 (ADID) would prevent and/or prohibit the Applicants from developing a
single family dwelling on this lot.
9. Although just compensation is the preferred option under Policy 101.18.5,
neither the Applicants are interested in selling, nor the land authority are interested in
acquisition of this wetland, disturbed salt marsh lot, which is located along the canal
shoreline of a mostly-developed, small-lot subdivision.
10. Limited development of this lot should be approved as the minimum
necessary to avoid a taking based on current land use case law, and this lot is suitable for
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limited development under specific conditions.
11. It is likely that the property would ultimately be allowed to fill in all but
20% open space due to the low score/value assigned to its wetlands.
WHEREFORE, the Monroe County Board of County Commissioners enters this
final beneficial use determination approving limited development on this lot subject to
the following conditions:
1. The Applicants shall be allowed to submit a building permit
application for construction of a single family dwelling unit on the subject lot.
2. This Beneficial Use Determination shall not exceed five (5) years
and is contingent upon the Applicants releasing Monroe County from all liability, if any,
past, present and future, with regards to the subject property.
3. The Applicants shall be required to obtain an allocation under the
County's Rate of Growth Ordinance (RaGa) and shall be bound by all current and future
County Land Development Regulations, except Comprehensive Plan Policies 203.1.3 and
204.24, and then only as conditioned and provided for in this Beneficial Use
Determination to allow the construction of a single family residence.
4. The Applicants shall have two-years from the date of their ROGO
award allocation to complete construction of the proposed dwelling.
5. The subject lot shall be required to retain a twenty(20%)percent
open space requirement and no filling shall be allowed within the designated open space
in perpetuity.
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PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a meeting of the Board held on the 21st day of October, A.D., 1998.
Mayor London yes
Mayor Pro Tern Harvey yes
Commissioner Douglass yes
Commissioner Freeman yes
Commissioner Reich yes
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BENEFICIAL USE
MONROE COUNTY SPECIAL MASTER
In Re: Robert A. and Brenda D. Silva- Beneficial Use
Application
/
PROPOSED
BENEFICIAL USE DETERMINATION
The above entitled matter was originally heard at a duly-advertised and regularly
scheduled, public hearing on August 13, 1998, by J. Jefferson Overby, designated
Beneficial Use Special Master. Brenda Silva, Applicant, represented herself and her
husband! co-applicant, Robert A. Silva. Assistant County Attorney Garth Coller and
Planning Director Timothy J. McGarry, Director of Planning represented Monroe
County.
ISSUE
Whether the applicants will be denied all reasonable economic use of their
property by application of Policies 203.1.3 and 204.24 of the Year 2010 Comprehensive
Plan, and whether the applicants are entitled to relief under Policies contained in
Objective 101.18 of the Year 2010 Comprehensive Plan (as administered and
implemented in the "Agreement between the Department of Community Affairs and
Monroe County" dated February 23, 1998), the approved portions of Ordinance 052-1997
and the Monroe County Code.
FINDINGS OF FACT
1. The Applicants purchased a one-half interest in the subject property in
September, 1994, and the remainder of the property in April, 1996, which is a lot of
record, located at Lot 5, Block 6, Winston Waterway #2 Subdivision, Monroe County
(RE# 00546760). The 5,280 square foot lot is zoned "Improved Subdivision" and is
currently vacant. The lot is characterized as "wetlands" and more specifically 90% of the
lot is "disturbed salt marsh".
2. The Applicants paid for and have received a Letter of Current Site
Conditions from the County Department of Environmental Resources on September 9,
1997 and a letter from the Department of Environmental Resources in January, 1998,
advising them that the subject lot is unbuildable.
3. According to the property Appraiser, the 1997 assessed value of the
property was $50.00, after being assessed at $28,785.00 in 1992.
CONCLUSIONS OF LAW
4. The Applicant's lot is designated Improved Subdivision, which allows one
residential dwelling and accessory uses to be permitted on this lot, except for the changes
now occasioned by the 2010 Plan.
5. Application of Policy 203.1.3 of the 2010 Comprehensive Plan has
rendered the lot unbuildable.
A. As an Improved Subdivision lot the subject property has no TDR
value.
B. Development of a residential dwelling on the applicants' lot is
2
prohibited, because the subject lot is of insufficient size (less than 17,424 square feet) to
be in compliance with the setback requirements required under 2010 Comprehensive Plan
203.1.3.
C. The New comprehensive plan had the effect of reducing the TDR
value of the property to zero and the value of the property to $50.00.
D. There are no variances or other administrative options are
available, because the current lot size would still render the property unbuildable.
6. Pursuant to Policy 101.18.5 and Section 4(D) of the Agreement between
DCA and Monroe County, I have considered:
A. the economic impact of the Policy (or regulation) that prohibits
development on the applicants' lot which is located within an Improved Subdivision; and
B. the extent to which the regulations have interfered with the
applicants' reasonable investment-backed expectation that some use could be made of
this lot.
7. The lot is located within an improved subdivision that is partly developed.
8. A strict application of Policy 203.1.3 (wetland setback requirements) and
Policy 204.24 (ADID) would prevent and/or prohibit the applicant from developing a
single family dwelling on this lot.
9. Although just compensation is the preferred option under Policy 101.18.5,
neither the applicants are interested in selling, nor the land authority are interested in
acquisition of this wetland, disturbed salt marsh lot, which is located along the canal
shoreline of a mostly-developed, small-lot subdivision.
3
10. Limited development of this lot should be approved as the minimum
necessary to avoid a taking based on current land use case law, and that this lot is suitable
for development under specific conditions.
11. It is likely that the property would ultimately be allowed to fill in all but
20% open space due to the low score/value assigned to its wetlands.
WHEREFORE, I recommend to the Board of County Commissioners that a final
beneficial use determination be entered approving limited development on this lot
subject to the following conditions:
1. The applicants shall be allowed to submit a building permit
application for construction of a single family dwelling unit on the subject lot.
2. This Beneficial use determination shall not exceed five (5) years
and is contingent upon the applicants' releasing Monroe County from all liability , if any,
past, present and future, with regards to the subject property.
3. The applicants shall be required to obtain an\. 4IIJlllocation under the
County's Rate of Growth Ordinance (ROGO) and shall be bound by all current and future
County Land Development Regulations, except Comprehensive Plan Policies 203.1.3 and
204.24, and then only as conditioned and provided for in this Beneficial Use
Determination to allow the construction of a single family residence.
4. The applicants shall have two-years from the date of their RaGa
award allocation to complete construction of the proposed dwelling.
5. The subject lot shall be required to retain a twenty(20%)percent
open space requirement and no filling shall be allowed within the
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designated open space in perpetuity.
DONE AND ORDERED this 3rd day of October, 1998.
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