07/19/1997 StipulationBRANCH OFFICE
3117 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
TEL (305) 289-6027
FAX (305) 289-1745
Amp 1. Rotbage
CLERK OF THE CIRCUIT COURT
MONROE COUNTY
500 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
TEL. (305) 292-3550
FAX (305) 295-3660
MENARANDUR
TO: Bob Herman, Director
Growth Management Division
FROM: Isabel C. DeSantis, Deputy Clerk C
DATE: October 9, 1997
BRANCH OFFICE
88820 OVERSEAS HIGHWAY
PLANTATION KEY, FLORIDA 33070
TEL (305) 852-7145
FAX (305) 852-7146
At the July 16, 1997 Board of County Commissioner's meeting
the Board granted approval and authorized execution of a
• Stipulation for Stay of Claim between Monroe County, Amy Brigham
Boulris, Counsel for the Wollards, and the Florida Department of
Community Affairs.
r'
Attached hereto is a fully executed duplicate original
of the subject Stipulation recorded in the Official Records of
Monroe County for your use in this matter.
Should you have any questions concerning the above,
please do not hesitate to contact this office.
cc: County Attorney
Morgan & Brookes
County Administrator, w/o doc.
Finance
`/File
I
,, == STATE OF FLORIDA
DEPARTMENT
LAWTON CHILES
Governor
JAMES F. MURLEY
Secretary
FLORIDA KEYS
Area of critical Slate Comm
Field Office
2796 Overseas Highway, Suite 212
Maradw, Florida 33050.2227
GREEN SWAMP
Area of Critical State Concern
Field Office
155 East Summerlin
Bartow, Florida 338304641
SOUTH FLORIDA
RECOVERY OFFICE
P.O. Box 4022
8600 N.W. 36th Street
Miami, Florida 33159-4022
OF COMMUNITY AFFAIRS
"Helping Floridians create safe,
Teresa Tinker
Office of the Governor
Office of Planning and Budget
The Capitol
Tallahassee, Floirda 32399
vibrant, sustainable communities"
August 12, 1997 f
f�
i
t
1, t
RE: Wollard's Bert J. Harris, Jr., Private Property Rights Protection Act
Claim
Dear Teresa:
Enclosed please find the stipulation agreed to among counsel for the Wollard's,
Monroe County and the undersigned on behalf of the Administration Commission. The final
stipulation is similar to and has improved upon the various drafts I have shared with you
over the last few months.
I recommend that Dr. Bradley or his designee execute the agreement, as evidenced
by my signature thereupon, and return it to me. I will then forward it to the County for
signature by the County Attorney and the Mayor.
The stipulation operates to stay the Wollard's claim until Monroe County land
development regulations to implement the non-residential permit allocation system in the
Year 2010 comprehensive plan become effective, which more appropriately may be the
action the Wollard's elect to challenge pursuant to the Bert Harris Act or pursuant to an
action in circuit court for a temporary taking. In any event, procedural safeguards are built
into the stipulation and the Commission retains its defenses to the claim, whether it is
ultimately pursued or abandoned in any forum.
Please call with any questions or concerns you may have. Otherwise, I look forward
to receiving the executed stipulation from you at your earliest convenience.
Ste erely, ruer
General Counsel
SGK/bf
2555 SHUMARD OAK BOULEVARD • TALLAHASSEE, FLORIDA 32399-2100
Phone: 904.488.8466/Suncom 278.8466 FAX: 904.921.0781/Suncom 291.0781
Internet address: http://www.state.fl.us/comaff/dca.html
FILE #1025282
MONROE COUNTY BK#1477 FG#421 RCD Sep 25 1997 09:43AK
OFFICIAL RECORDS STIPULATION DANNY L KOLHAGE, CLERK
FOR STAY OF CLAIM
WHEREAS, Mr. and'Mrs. Mignon C. Wollard (the "Wollards") are owners of
certain real property located in Monroe County, Florida, and
WHEREAS, Monroe County is a political subdivision of the State of Florida,
located within the boundaries of the Florida Keys Area of Critical State Concern
(pursuant to S 380.0552, Florida Statutes), and
WHEREAS, the Governor and Cabinet, acting as the Administration
Commission, has the authority to adopt amendments to the Monroe County
comprehensive plan and land development regulations to ensure compliance with the
Principles for Guiding Development in the Florida Keys Area of Critical State
Concern (under S 380.0552, Florida Statutes) and compliance with the requirements of
Florida's Growth Management Act (under Chapter 163, Part II, Florida Statutes), and
WHEREAS, Monroe County has adopted the Monroe County Year 2010
Comprehensive Plan under Chapters 163 and 380 of the Florida Statutes (the "Plan"),
which contains a policy of permit allocation for non-residential development
(otherwise commonly known as a "commercial rate of growth" policy) and a
requirement that the County prepare an economic analysis to determine the demand
for future non-residential development, after which land development regulations will
be promulgated to implement a non-residential permit allocation system, and
WHEREAS, the Wollards have filed a claim against Monroe County and the
FILE #1025282
BK#E1477 PG#E422
Administration Commission under the Bert J. Harris, Jr. Private Property Rights
Protection Act, (Chapter 70, Florida Statutes) to challenge the non-residential permit
allocation aspects of the Plan and an associated moratorium as imposing an inordinate
burden on their real property (the "Claim"), a copy of which is attached hereto as
exhibit "A," and
WHEREAS, the parties wish to enter this stipulation in the spirit of
compromise to avoid costly and lengthy lititgation,
IT IS HEREBY STIPULATED AND AGREED AMONG THE PARTIES:
1. The parties agree to stay the Claim until land development regulations
implementing the non-residential permit allocation system are effective.
2. The parties agree to extend the 180-day notice period for response to the
Claim by Monroe County and the Administration Commission, pursuant to S
70.001(4) (c) F1a.Stat. (1995), until after land development regulations implementing the
non-residential permit allocation system ("land development regulations") become
effective. Monroe County shall notify the Wollards, in writing, of the effective date of
the land development regulations. Within 30 days after receipt of that effective date
notice, the Wollards may submit a notice of intent to proceed on the original Claim,
and Monroe County and the Administration Commission shall have 90 days from the
date of the notice to respond to the Claim. Within 30 days after receipt of the effective
date notice, the Wollards may also file an amended Claim to include any additional
impacts as a result of the land development regulations, and Monroe County and the
2
FILE #1025282
BK#1477 PG#423
Administration Commission will then have 180 days to respond to the amended claim.
The Wollards agree to notify Monroe County and the Administration Commission in
writing, within 30 days after receipt of the effective date notice, of any decision not to
pursue the Claim or any amended claim.
3. This stipulation to stay the Claim shall be without prejudice to the
pursuit of other lawfully available remedies by the Wollards related to the non-
residential rate of growth policy or the associated moratorium, if any.
4. Monroe County and the Administration Commission reserve the right
to assert all applicable defenses to the Claim, any amended claim, or any other legal
remedies pursued by the Wollards.
5. This stipulation contains the full agreement of the parties and can be
modified only by consent and signature of all the parties.
6. The parties have signed this stipulation with the knowledge and intent to
be bound thereby, and the stipulation is effective on the date the last party signs it.
WHEREFORE, Mr. and Mrs. Mignon C. Wollard, Monroe County, and the
Administration Commission hereby stipulate and agree to stay the Wollards' claim
under Chapter 70, Florida Statutes filed January 3, 1997, a copy of which is attached
hereto and incorporated herein as exhibit "A," until land development regulations
implementing the non-residential permit allocation system contained in the Monroe
County Year 2010 Comprehensive Plan become effective, as more specifically set forth
herein.
3
FILE #1025282
BK#1477 PG#424
i t
AMY AdCHAM OULRIS Date
Counsel for Wollards
Brigham, Moore et al.
203 S.W. 13`h Street cu
Miami, Florida 33130-4219✓�.t
� b �j ATTESp DMWY
} L K0L%VM WN
eY :1
DEM
07-/6- 97
KE(TH DOUGLAS Date
Mayor, Monroe County
Approved as to form and legal sufficiency:
rvl—� �'/// /
JAMW • # vzaeey Date
�3. ? j12& /q7
(�/ 4117OBERT B. BRADLEY Date
Secretary, Administration Commission
Room 2105
The Capitol
Tallahassee, Florida 32399-0001
STE NI . KRUER
Counsel for Administration Commission
Department of Community Affairs
2444 Shumard Oak Boulevard
Tallahassee, Florida 32399-2100
<?
Date
4
BRioHAm MOOBE GAYLORD SCHUSTER MERLIN & TOBIN
LAWYERS
EMINENT DOMAIN 6 PROPERTY RIGHTS
A LIMITED LIABILITY PARTNERSHIP INCLUDING PROFESSIONAL ASSOCIATIONS
203 SOUTHWEST 13*"STREET FILE #1025282 333 NORTH NEW RIVER DRIVE EAST
MIAm, FLORIDA 33130-4219 BK#1477 PG#425 FORT LAunBRDALE, FLORIDA 33301-2205
DADE (305) 858-2400 BROWARD (954) 523-5808
BROWARD (305) 467-8201 INTERNET ADDRESS: DADE 956-9289
FAX (305) 858-5828 http://www.emine�tdomain.com FAX (954) 763-2604
(800) 380 - 3338
100 WALLACE AVENUE
SARABOTA, FLORIDA 34237-6028
(941) 365 - 3800
FAX (941) 952 - 1414
(800) 380 - 3337
Via Facsimile & Certified Mail
(305) 289-6306
Honorable Keith Douglass
Mayor, Monroe County
490 63`d Street
Marathon Government Annex, # 110
Marathon, Florida 33050
777 SOUTH HARBOUR ISLAND BOULEVARD
January 3, 1997 TAxrA, FLORIDA 33602-5701
(813) 229-8811
FAX (813) 222-0389
REPLY TO: (800) 393-3336
Via Facsimile & Certified Mail
(904) 487-0801
Honorable Lawton Chiles
Governor, State of Florida
The Capitol
Tallahassee, 32399-0001
Re: Bert J. Harris, Jr., Private Property Rights Protection Act Claim
for inordinate burden on property in Monroe County owned by
Mr. and Mrs. Mignon C. Wollard
Dear Sirs:
This letter shall serve as a claim under the Bert J. Harris, Jr., Private Property Rights
Protection Act (the "Act") codified in Chapter 70, Florida Statutes (1996) by Mr. and Mrs.
Mignon C. Wollard for inordinate burdens imposed on property owned by them in Monroe
County, Florida. The subject property is located at approximately Mile Marker 80.5 on Upper
Matecumbe, and is more particularly described as:
A portion of Lot 7, a portion of Government Lot 1 and a portion of
Tract 3 in Government Lots 1, 2 and 3 on the Island of Upper
Matecombe in Section 6, Township 64 South, Range 37 East,
Monroe County, more particularly described on Monroe County
tax maps as Parcels 00096440-000100, 00096820-000000, and
00096830-000100.
The subject property is subject to Suburban Commercial and Native Area designations with
approximately 4.8 acres of the subject property being upland and 2.61 acres being wetland. It
enjoys 400 feet of frontage on the Overseas Highway and a corresponding amount of shoreline
on Florida Bay. The assessed value of the subject property is currently $552,261.
�► * • ECEI7E-
---
FILE #1025282
BK#1477 PG#426
The Act provides for compensation to a landlowner when the action of governmental
entities inordinately burdens a property's "existing use" as defined in subparagraph (1)(b). On
January 5, 1996, the Monroe County Year 2010 Comprehensive Plan (the "Plan") became
effective. This new Plan included Policy 101.3.1 which seeks to balance residential and non-
residential development by placing limitations on the approval of non-residential development.
Policy 101.3.5 requires that the County prepare an economic analysis to determine the demand
for future non-residential development, after which land development regulations will be
promulgated to implement a non-residential permit allocation system. Monroe County refuses to
issue any building permits until the regulations are effective. The referenced policies of the Plan
and the current moratorium, individually and collectively, have inordinately burdened the subject
property for which commercial use was reasonably forseeable, non -speculative, and suitable prior
to the Plan becoming effective. In addition to Monroe County, this claim is being presented to
the Governor as head of the Administration Commission which has jurisdiction over and did
approve the Plan pursuant to its powers under Chapter 380, Florida Statutes.
The compensation required under Paragraph 6(b) of the Act is the loss in fair market
value of the property arising from the governmental action. In compliance with Paragraph 4(a) of
the Act, attached hereto, and incorporated herein by reference, is a bona fide, valid appraisal by
Robert Gallaher, MAI, which concludes that the market value of subject property declined to
between $1,000 and $5,000 after the Plan became effective. Accordingly, Mr. and Mrs.
Wollard's claim for compensation under the Act is at least $547,261, the difference between the
assessed value of $552,261 and the currently appraised market value of $5,000.
This claim in no way rescinds or modifies any of the Wollards' objections related to the
Plan or any of their remedies arising out of the Plan. Nor does it waive their rights to assert that
the Plan and/or moratorium has caused an unconstitutional "taking" or any right or remedy
which might otherwise be available to them at law or in equity.
Under paragraph 4(c) of the Act, Monroe County and the Administration Commission
have 180 days within which to respond to this claim with a settlement offer. Mr. and Mrs.
Wollard hope to accomplish an amicable solution to the inordinate burden placed upon their
commercial property.
Enclosure
Sincerely,
Amy Brigham!0,Ulris
BwonAx Moo$$ GAYLORD SCHUSTER MERLIN & ToBiN
NO. 96066
FILE #1025282
BK#1477 PG#427
APPRAISAL REPORT
PREPARED FOR
MIGNON C. WOLLARD
PROPERTY APPRAISED
VACANT COMMERCIAL LAND
ISLAMORADA
MONROE COUNTY, FLORIDA
appraiser
Robert E. Gallaher, Jr., MAI
FILE #1025282
BK#1477 PG#428
HEDG-PETH & GALLAHER, INC.
FILE #1025282
BK#1477 PG#429
TABLE OF CONTENTS
Certificateof Appraisal.........................................................................................................."
AppraisalReport Summary ..................................................................................................
1
Purposeof Appraisal............................................................................................................
2
Dateof Appraisal.................................................................................................................
2
InterestAppraised................................................................................................................
2
LegalDescription................................................................................................................3
Location................................................................................................................................
3
MarketArea.........................................................................................................................
3
Accessibility..........................................................................................................................3
- Street Improvements............................................................................................................
3
PresentUse.........................................................................................................................
3
Zoning...............................................................................................................................
4-5
Utilities..................................................................................................................................
5
Shapeand Size of Land......................................................................................................
6
Improvements......................................................................................................................
6
Taxes...................................................................................................................................
6
SalesHistory .......................................................................................................................
6
Highestand Best Use..........................................................................................................
7
Valuation ......................... ....
7-10
Conclusion.........................................................................................................................10
MarketValue.....................................................................................................................10
APPENDIXES
Appendix I ............................... ....................................Assumptions and Limiting Conditions
Appendix II.................................................................................... Appraisers' Qualifications
HEDG-PETH & GALLAHER, INC.
HEDG-PETH & GALLAHER, INC.
RFAI. ESTATE ArPRAISFRS ANOCONSULTANTS
Liccnxd heal Estate Brokers FILE #1025282
BK#1477 PG#430
CERTIFICATE OF APPRAISAL
APPRAISAL REPORT NO. 96066
ROBERT E. GALLAHER, JR. does hereby certify that upon application by Mignon C. Wollard,
he has made an investigation and analysis of the property legally described on page 3 of this
report and that, in his opinion, the market value, as of January 1, 1996 was as follows:
ONE THOUSAND TO FIVE THOUSAND DOLLARS
$1,000 TO $5,000
The undersigned appraiser certifies that, to the best of his knowledge and belief, the
statements contained in this report are true and correct; the reported analyses, opinions, and
conclusions are limited only by the reported "Assumptions and Limiting Conditions" at
Appendix I, and are his personal, unbiased professional analyses, opinions, and conclusions;
his compensation is not contingent on an action or event resulting from the analyses, opinions
or conclusions in, or the use of, the report; also that this appraisal was not based on a
requested minimum valuation, a specific valuation, or the approval of a loan or other real estate
related transaction. The analyses, opinions and conclusions were developed and this report
has been prepared in conformity with the Uniform Standard Profession Appraisal Practice as
well as conformity with the requirements of the Code of Professional Ethics and the Standards
of Professional Practice of the Appraisal Institute and in conformity with the requirements of the
State of Florida for state certified appraisals. The use of the report is subject to the
requirements of the Appraisal Institute and the State of Florida relating to review by its duly
authorized representatives of the Institute and by the Real Estate Sub -Committee of the Florida
Real Estate Commission.
The appraiser does further certify that he has no present or prospective interest in the property
and no personal interest or bias with respect to the parties involved and that he has made a.
personal inspection of the property that is the subject of this report and that there has been no
unacknowledged significant professional assistance.
As of the date of this report, Robert E. Gallaher, Jr., has completed the requirements under the
continuing education program for the Appraisal Institute and Mr. Gallaher has completed the
continuing education requirements for the State of Florida.
R BERT E. GAL ER, JR., MAI
State Certified General Real Estate Appraiser
Certificate No. RZ0000098
DATED: NOVEMBER 1, 1996
7400 SW' 5011) rcrra.:r 0 Suite 201 • \11:11m, 1L+r111 11155 ;is 1'hunc: (305) 663.1140 • Fas: 005) 663.1110
APPRAISAL REPORT SUMMARY
Appraisal Prepared For -
Type of Property -
Location - FILE #1025282
BK#1477 PG#431
Date of Appraisal -
Date of Inspection -
Date of Report -
Interest Appraised -
Zoning
Land Area
Highest and Best Use -
Market Value
Mignon C. Wollard
Vacant commercial land
Approximately mile market 80.5
Overseas Highway
Upper Matecumbe Key
- Monroe County, Florida
January 1, 1996
October 29, 1996
November 1, 1996
Fee Simple Title
SC - Suburban Commercial and
NA - Native Area; Monroe County
7.41 Acres
Highly speculative investment
$1,000 to $5,000
Appraisal Report No. 96066
HEDG-PETH & GALLAHER, INC.
2
PURPOSE OF APPRAISAL -
The purpose of this appraisal is to estimate the market value of the property as of the
appraisal date.
FILE #1025282
"Market Value" is hereby defined as: Bx#1477 PG#432
The most probable price which a property should bring in a competitive and
open market under all conditions requisite to a fair sale, the buyer and seller,
each acting prudently, knowledgeably and assuming the price is not affected by
undue stimulus. Implicit in this definition is the consummation of a sale as of a
specified date and the passing of title from seller to buyer under conditions
whereby;
a. buyer and seller are typically motivated;
b. both parties are well informed or well advised, and each is acting in what
he considers his own best interest;
C. a reasonable time is allowed for exposure in the open market;
d. payment is made in terms of cash in U.S. dollars or in terms of financial
arrangements comparable thereto; and
e. the price represents the normal consideration for the property sold
unaffected by special or creative financing or sales concessions granted
by anyone associated with the sale.
The foregoing definition of and the conclusions as to market value in this report refer to
gross nominal values rather than net present values to the current owner and are
based on market occupancy levels at the time of the appraisal. There are no discounts
for the cost of selling the property, for the time to sell, or for carrying costs during
marketing periods..
DATE OF APPRAISAL -
January 1, 1996
INTEREST APPRAISED -
Fee Simple Title
HEDG-PETH & GALLAHER, INC.
3
LEGAL DESCRIPTION - FILE #1025282
BK#1477 PG#433
A portion of Lot 7, a portion of Government Lot 1 and a portion of Tract 3 in
Government Lots 1, 2 and 3 on the Island of Upper Matecumbe in Section 6, Township
64 south, Range 37 East, Monroe County.
The parcels are more particulrly described on Monroe County tax maps as Parcels
00096440-000100, 00096820-000000 and 00096830-000100.
LOCATION -
The property is located at approximately Mile Marker 80.5 on the Bays side of the
Overseas Higway, Upper Matecumbe.
MARKET AREA -
The subject site is located towards the southwesterly end of Upper Matecumbe, about
'/2 mile from the Teatable Channel. The immediate area is sparsely developed, with
density of development increasing to the northeast along the highway. The site is
located between two commercial marinas.
The intended users of this report, the owner and the county taxing authority are very
familiar with the subject's market area and, therefore, additional market area
description is not included.
ACCESSIBILITY -
The property is easily accessible fronting directly on the Overseas Highway just south
of the commercial development of Islamorada.
STREET IMPROVEMENTS -
The Overseas Highway (U.S. Highway 1) has a dedicated width of 100 feet at this
location, according to County records. It is paved with asphalt with one traffic lane in
each direction and a center turn lane.
PRESENT USE -
As of the date of appraisal, the subject was vacant and unimproved.
HEDG-PETH & GALLAHER, INC.
Il
ZONING -
FILE #f1025282
BK#E1477 PG#E434
The property is within the jurisdiction of unincorporated Monroe County and subject to
the SC, Suburban Commercial and NA, Natural Area designations.
Most of the land area falls in the SC district. Suburban Commercial zoning permits the
following uses, with significant conditions:
Retail stores Offices
+ Institutional residential Bowling alleys
i Tennis courts Miniature golf and driving ranges
1 Theaters Health clubs
Swimming pools Public buildings
Hotels Campgrounds
Light industrial uses Parks
Marinas Mariculture
Heliports
Prior to 1996 the allocated density for land in this district was 6.0 dwelling units per
acre, with a maximum net density of 12.0 units per acre. Open space requirements
were equal to 20% of the land area. Development rights were transferable from areas
where development is prohibited, which is how allocated density was increased to
maximum net density.
The January 1996 amendments to the land development regulations changed the
densities in the SC district to conform to a Mixed Use/Commercial classification (MC)
and limited development to an allocated density of 1 to 6 dwelling units per acre, with a
maximum net density of 6 to 18 units per acre and a floor area ratio of 0.10 to 0.45.
Front set backs are set at 25 feet, with side yards of 10 to 15 feet, and a rear set back
of 15 feet. Maximum building height is generally 35 feet.
The Monroe County Year 2010 Comprehensive Plan, Rule 101.3 modified the Rate of
Growth Ordinance to limit the development of commercial properties. Over the 15 year
planning horizon, non-residential development will be limited to 239 square feet of
buildings for each new residential unit permitted through the Permit Allocation System.
This rule effectively eliminates commercial development for the near future and may
eliminate most commercial development over the long run.
Therefore, as of the appraisal date, the commercially zoned portion of the property
could not be developed.
HEDG-PETH & GALLAHER, INC.
5
ZONING - Continued FILE #1025282
BK#1477 PG#435
The NA zoned portion of the site can be improved with the following uses according to
the land use regulations:
i Residences Beekeeping
Public buildings Agricultural uses
Communications systems Marinas
# Solid waste facilities
Most of these uses are conditional and subject to standards and procedures outlined
i ion the code.
Prior to the beginning of 1996, the intensities within the NA district varied depending
upon the type of land involved. The permitted densities were as follows:
Type
Allocated
Maximum
Open
Densities
Net Density
Space
(DU/acre)
(DU/acre)
Ratio
Mangroves
0
0
1.0
Wetlands - Fresh
0.2
0
1.0
Transitional
0.3
5.0
0.85
Disturbed
0.5
5.0
0.6
Hammocks
0.5
5.0
0.8
Beach/Berm
0.5
5.0
0.9
Pinelands
0.5
5.0
0.8
The January 1996 amendments to the land development regulations changed the
densities in the NA district to conform to a Residential Conservation classification and
limited development to an allocated density of 0 to 0.25 dwelling units per acre, with
zero units permitted under maximum net density (no TDR's) and a floor area ratio of 0
to 0.10.
That portion of the subject land that is classified as NA appears from aerial
photographs to be mangroves and no development would be permitted in this area.
UTILITIES -
The following public utilities were available at the subject site at the time of our
inspection:
Electricity - Florida Keys Electric Cooperative
Telephones - Bell South
Water - Florida Keys Aqueduct Authority
Sewer - None, the property would be served by a septic tank
HEDG-PETH & GALLAHER, INC.
A
FILE #1025282
SHAPE AND SIZE OF LAND - BK#1477 PG#436
The subject is somewhat irregular in shape, as shown on the plat on the opposite
page. The site has 400 feet of frontage on the Overseas Highway and an average
depth of nearly 1,000 feet. There is approximately 400 feet of meandering shoreline.
Total land area, according to county tax records, is as follows:
Parcel Upland Wetland Total
96440
1.14 acres
0.61 acres
1.75 acres
96820
1.21 acres
_
0.88 acres
2.09 acres
96830
2.45 acres
1.12 acres
3.57 acres
Total
4.80 acres
2.61 acres
7.41 acres
IMPROVEMENTS -
There were no land or building improvements at the property at the time of our
inspection.:
TAXES -
j
As of the appraisal date, the property was assessed and taxed as follows:
{ 00096440-000100 -
Upland - $131,100
Wetland - + 61
Total - $131,161
00096820-000000 -
Upland - $139,150
Wetland - + 88
Total - 139,238
00096830-000100 -
Upland - $281,750
Wetland - + 112
Total - +281,862
Total assessed value - $552,261
Total taxes - $8,495
SALES HISTORY -
The property is recorded in the public record as being under the ownership of Mignon
C. Wollard, having been acquired around 1970.
HEDG-PETH & GALLAHER, INC.
7
HIGHEST AND BEST USE - FILE #1025282
BK#1477 PG#437
According to the 10th Edition of The Appraisal of Real Estate, a publication sponsored
by the Appraisal Institute, "highest and best use" is defined as:
The reasonably probable and legal use of vacant land or an improved property,
which is physically possible, appropriately supported, financially feasible, and
that results in the highest land value.
The highest and best use of a specific property is determined by the competitive forces
within the specific market of which the property is a part. Consequently, the analysis of
highest and best use is an economic study, one in which the available possible, legal
and feasible uses must be studied under terms of the foregoing definition, with the final
opinion of highest and best use being that specific use that is found to be legally
permissible, physically possible, financially feasible and maximally productive
The property is located in the unincorporated area of Monroe County, fronting on the
Overseas Highway and Florida Bay. Its use is limited by the county's prevailing zoning
code, which as stated earlier, virtually eliminates any improvement of the property over
the short term and may prevent economic use of the property over the long term. The
property is zoned predominantly SC, Suburban Commercial.
Under the current land use regulations, the only use that can be made of the property
is to hold it as a speculative investment until the regulations are eased and
development is again possible.
VALUATION -
There are various approaches to the valuation of real estate - the cost approach, which
is an estimate of the depreciated reproduction cost of a property, including the land;
the income approach, which is an indication of value based on the potential net income
that can be produced by a property and the sales comparison approach, which is an
estimate of value based on a comparison to recent sales of similar properties. The cost
and income analyses generally apply to improved properties.
Since the subject property is vacant land, only the comparable sales approach would
normally be applicable. However, with the recent changes in the land use regulations,
the subject site, as well as most all unimproved commercial land in the Keys is no
longer comparable to commercial sites that may have sold over the past few years.
Commercial land is either purchased to be improved with an economically viable
building or to be held in anticipation of appreciating property values to eventually be
sold to a party that will improve the land with an economically viable improvement.
Either way, the value of the property is ultimately based on what improvement can be
made to the land.
HEDG-PETH & GALLAHER, INC.
e
VALUATION - continued
FILE #1025282
BK#1477 PG#438
With the current land use regulations eliminating any use, the traditional valuation
techniques are no longer applicable. Instead one must look for alternative market data
with which to reach a value conclusion. We began our analysis with the basic textbook
of the Appraisal Institute, The Appraisal of Real Estate, 101" Edition.
In order to reaffirm the fundamentals of valuation, we reviewed several basic
concepts:
Utility is the ability of a product to satisfy a human want, need or desire. All
properties must have utility to tenant, owner -investors or owner -occupants. The
benefits of real property ownership are derived from the bundle of rights that an
owner possesses. Restrictions on ownership rights may inhibit the flow of
benefits and, therefore, lower the property's value (pg. 24).
These regulations have so inhibited the flow of benefits to commercial property
owners that the value is effectively destroyed.
In the real estate market, the current value of a property is usually not based on
its historical prices or the cost of its creation; rather, value is based on market
participants' perceptions of the future benefits of acquisition (pg. 33).
The regulations have pushed the time when any benefit can be expected of ownership
so far into the future that the present value is reduced to only a nominal sum.
The concept of highest and best use is predicated on the assumption that
buyers and sellers set prices for properties based on their conclusions about
the most profitable use of the site or property (pg. 65).
' The regulations remove any possibility of a profitable use of commercial land,
therefore, buyers would either set no value on this land or would discount the value so
severely that the seller's investment is destroyed.
The next step in our valuation was to review the attitudes of those active in the market
to see if their reaction parallels the textbook model.
x
The property owner has received letters from several mortgage lenders active in the
Keys as well as a letter from one of the most active real estate brokers. The lenders'
letters indicate a reluctance to lend on vacant land in general due to the uncertainty of
eventual use and therefore the uncertainty of value. The real estate broker focused
on the liability issues of marketing a property under these regulations. She feels
buyers in the market purchase with the expectation of eventual use and the current
regulations may prevent such a use, opening her to litigation.
HEOG-PETH & GALLAHER, INC.
0
FILE #1025282
VALUATION - continued BK#1477 PG#439
Next we looked at the county property appraiser's approach to valuing land that has
virtually no economic use. The 3.14 acre wetland portion of the subject has an
assessed value of $100 per acre. This is a nominal valuation reflecting the lack of a
viable economic use for the foreseeable future.
Another approach to the analysis of this site is to presume the site to be useable at
some time in the future and then to discount that value for the intervening time at an
appropriate compound interest rate. This is the approach the property appraiser's
office may use to reduce the former assessment. However, two key parameters of
this analysis are the length of time for the discount and the interest rate used.
As with most regulations, no one can accurately predict how long the current policy
will be in effect. However, investors generally presume the worst case, which could
be 15 years or more. The trend in Monroe County has been toward more regulation
and less development and there is no evidence that this trend will change. Therefore
it is reasonable to assume at least a 10 or 15 year time period should be used.
The discount rate or compound interest rate used in the discounting calculation is
based on the risk perceived in the market. The greater the risk, the higher the interest
rate. Generally a discount rate of 12% to 15% is used in valuing an investment
property in which the only risk is maintaining the existing income stream. Land
development projects, in which development costs are less certain, involve discount
rates of as much as 20%. This property, as a speculative investment, would be
discounted at a higher rate, because gany return is based on when the changes come
in the regulations, changes that may never happen. The $552,000 assessed value,
discounted for 10 to 15 years at 25% to 30% results in the following present values.
$552,000 discounted 10 years at 25% = $59,270 present value
$552,000 discounted 15 years at 30% = $10,784 present value
Our last item of analysis was to consider the point of view of the regulators from the
State of Florida.
The Governor and the Cabinet, sitting as the Board of Trustees of the Internal
Improvement Fund of the State of Florida, met on March 12, 1996 and approved a
policy to waive normal appraisal procedures for the valuation of land to be acquired by
the State. The procedures to be waived were the consideration of values under
current land use regulations, a normal appraisal practice. Instead, future appraisals
are to value land under former land use regulations, because, "it is feared that the
proposed comprehensive plan amendments will so substantially diminish property
values that no willing sellers will be found" that will sell their land to the State.
HEDG-PETH & GALLAHER, INC.
10
VALUATION - continued
FILE #1025282
BK#1477 PG#440
Such a policy, adopted on the state level, clearly indicates that regulations have so
impacted real estate values as to eliminate or substantially diminish market activity.
CONCLUSION -
There is no conclusive market data with which to value the subject land. There is no
way to know whether a buyer could be found for the site or at what price. At the
current tax amount, the present value of the next ten years' taxes constitutes a liability
of nearly $60,000 (assuming the prime rate of interest), which totally offsets the most
optimistic present value calculation shown above.
At the $100 per acre ad valorem rate applied to the wetland area, the total value of the
property would be $741.
Therefore, it is our conclusion that the market value of the property as of January 1,
1996 was a nominal amount, somewhere in the range of $1,000 to $5,000.
MARKET VALUE -
In our opinion, the market value of the property, as of January 1, 1996, was a nominal
$1,000 to $5,000.
HEDG-PETH & GALLAHER, INC.
FILE #1025282
BK#1477 PG#441
APPENDIX I
ASSUMPTIONS AND LIMITING CONDITIONS
HEDG-PETH & GALLAHER, INC.
ASSUMPTIONS AND LIMITING CONDITIONS FILE 82
BK;�1477 PG#442
This is a Summary Appraisal Report which is intended to comply with the reporting
requirements set forth under Standard Rule 2-2(b) of the Uniform Standards of Professional
Appraisal Practice for a Summary Appraisal Report. As such, it includes only brief descriptions
of the data, reasoning, and analyses that were used in the appraisal process to develop the
appraiser's opinion of value. Supporting documentation concerning the data, reasoning, and
analyses are retained in the appraisers' files.
It is assumed that the title to the subject property is good and marketable; and that the legal
description of the property is correct;, that the improvements are entirely and correctly located
on the property described; and that there are no encroachments, encumbrances, restrictions
on or questions of title to this property; but no investigation or survey has been made, unless
otherwise stated.
The property is appraised free and clear of any or all liens and encumbrances unless otherwise
stated in this report.
The market value estimate assumes prudent ownership and management of the herein
appraised property.
4
The information as to the description of the premises, restrictions, and improvements to the
property involved in this report is as has been submitted by the applicant of this appraisal, or
has been obtained from sources believed to be authoritative. No warranty is given for its
accuracy.
Unless otherwise specifically stated, the value given in this report represents the opinion of the
signers as to the market value as of the appraisal date. Market values of real estate are
affected by economic conditions, both local and national. Therefore, market values of real
estate will vary with future market conditions affecting real estate.
It is assumed that there is full compliance with all applicable federal, state, and local
environmental regulations and laws unless otherwise stated in this report.
F
It is assumed that all applicable zoning and use regulations and restrictions have been
complied with, unless a nonconformity has been stated, defined, and considered in this
` appraisal report.
It is assumed that all required licenses, certificates of occupancy, or other legislative or
administrative authority from any local, state, or national governmental, or private entity or
organization have been or can be obtained or renewed for any use on which the value
estimates contained in this report are based.
APPENDIX I - ASSUMPTIONS AND LIMITING CONDITIONS
HEDG-PETH & GALLAHER, INC.
ASSUMPTIONS AND LIMITING CONDITIONS - continued FILE #1025282
BK#1477 PG*443
Any plot, plan or sketch in this report may show approximate dimensions and are included to
assist the reader in visualizing the property. Maps and exhibits found in this report are
provided for reader reference purposes only. No guarantee as to accuracy is expressed or
implied unless otherwise stated in this report. No survey has been made for the purpose of this
report unless otherwise indicated.
It is assumed that the utilization of the land and improvements is within the boundaries or
property lines of the property described and that there is no encroachment or trespass unless
otherwise stated in this report.
The appraiser is not qualified to detect hazardous waste and/or toxic materials. Any comment
by the appraiser that might suggest the possibility of the presence of such substances should
not be taken as confirmation of the presence of hazardous waste and/or toxic materials. Such
determination would require investigation by a qualified expert in the field of environmental
assessment. The presence of substances such as asbestos, urea -formaldehyde foam
l insulation, or other potentially hazardous materials may affect the value of the property. The
appraiser's value estimate is predicated on the assumption that there is no such material on or
in the property that would cause a loss in value unless otherwise stated in this report. No
responsibility is assumed for any environmental conditions, or for any expertise or engineering
knowledge required to discover them. The appraiser's descriptions and resulting comments
are the result of the routine observations made during the appraisal process.
Unless otherwise stated in this report, the subject property is appraised without a specific
compliance survey having been conducted to determine if the property is or is not in
conformance with the requirements of the Americans with Disabilities Act. The presence of
architectural and communications barriers that are structural in nature that would restrict
access by disabled individuals may adversely affect the property's value, marketability, or utility.
This report covers the premises herein described only. Neither the figures herein nor any
analysis thereof, nor any unit values derived therefrom are to be construed as applicable to any
other property, however similar the same may be.
Possession of this report, or copy thereof, does not carry with it the right of publication.
The signers of this report do not authorize disclosure of all or any part of the contents of this
report to the public through advertising, public relations, news, sales or other media, without the
written consent and approval of the author, particularly as to valuation conclusions, the identity
of the appraisers or firm with which they are connected, or any reference to professional
associations to which they belong or designations which they may hold.
APPENDIX I - ASSUMPTIONS AND LIMITING CONDITIONS
HEDG-PETH & GALLAHER, INC.
a
a
ASSUMPTIONS AND LIMITING CONDITIONS - continued
The market value herein is based on data available at the time of our investigation and
analysis. Should any additional information be made available to us that would affect the value
estimate, we reserve the right to adjust our figures accordingly.
The contract for the appraisal of said premises is fulfilled by the signers hereto upon the
delivery of this appraisal duly executed.
FILE #E1025282
HK#f1477 PG#E444
APPENDIX I - ASSUMPTIONS AND LIMITING CONDITIONS
HEDG-PETH & GALLAHER, INC.
FILE #1025292
BK#1477 PG#445
APPENDIX II
APPRAISER'S QUALIFICATIONS
HEDG-PETH & GALLAHER, INC.
QUALIFICATIONS OF ROBERT E. GALLAHER, JR., MAI
Resident of Miami, Dade County, Florida since 1950
State Certified General Real Estate Appraiser, State of Florida (Certificate Number 0000098)
Licensed Real Estate Broker, State of Florida
Graduate of University of Florida, Gainesville, Florida
Awarded Bachelor of Science in Business Administration with Major in Real Estate, August 1972
Member of:
Appraisal Institute, with designation MAI.
The Appraisal Institute was formed in 1991 by the merger of the American Institute of
Real Estate Appraisers and the Society of Real Estate Appraisers
Certified Under Continuing Education Program through September 1997
Board of Directors Chapter 24 1988-1990
Realtor Association of Miami FILE #1025282
Chairman of Association for 1995-96 BK#1477 PG#446
Chairman of Education Foundation 1993 to 1995
President 1987-1988
Board of Directors 1985-1989, 1994, 1995, 1996
Florida Association of Realtors
Board of Directors 1982, 1987, 1988, 1995, 1996
Education Foundation 1988 to 1989
National Association of Realtors
Coral Gables Association of Realtors (1975 to 1992)
President 1982
Board of Directors 1980-1982
Kendall Perdne Association of Realtors 1988 to 1994
Dade County Sur Tax Advisory Board 1984 to 1993
Participated in appraisals in Dade, Broward, Monroe and other Counties in Florida of various types of
residential, commercial and industrial properties.
Instructor:
Licensed Real Estate Instructor, State of Florida
Dean - Real estate school of the Miami Beach Association of Realtors
Has taught seminars and/or courses for:
Miami Dade Community College; the local chapter of the Appraisal Institute, The
American Bar Association, The Florida Association of Realtors; the Coral Gables, Miami,
Miami Beach and Kendall Perrine Associations of Realtors; Coldwell Banker and ERA Real
Estate Companies.
Currently President/Owner of Hedg-peth & Gallaher, Inc., (formerly the Hedg-peth Company Inc.)
Has been officer, director and stockholder of several closely held corporations, including Sanctuary
Farms, Inc., a farming venture in Collier County; Marina Bay, Inc., a shopping center development in
North Dade County; Burlingame Group, Inc., an office space owner in Miami; and First Reserve, Inc., a
corporate holding company that owned Esslinger-Wooten-Maxwell, Inc., a general real estate brokerage
firm and which participated in the development of Gables Waterway Executive Center and the University
Inn Condominium.
MONROE COUNTY
OFFICIAL RECORDS
APPENDIX It - APPRAISER'S QUALIFICATIONS
HEDG-PETH & GALLAHER, INC.