Ordinance 021-1998
Draft - May 28, 1998
ORDINANCE NO. 021-1998
AN ORDINANCE ADOPTING LAND DEVELOPMENT REGULATIONS TO
IMPLEMENT THE BENEFICIAL USE AND VESTED RIGHTS PROVISIONS OF
THE 2010 COMPREHENSIVE PLAN; ESTABLISHING PROCEDURES, STANDARDS
AND CRITERIA FOR BENEFICIAL USE AND VESTED RIGHTS DETERMINATIONS.
WHEREAS, Monroe County is required to adopt land development regulations that
implement the 2010 Comprehensive Plan under Florida Statutes 9163.3202;
WHEREAS, vested rights and beneficial use determinations are necessary to prevent a
taking of private property rights resulting from adoption ofthe 2010 Comprehensive Plan;
WHEREAS, vested rights and beneficial use determinations are addressed in the 2010
Comprehensive Plan, Objective 101.18;
WHEREAS, applications for vested rights must be submitted within one y~ o@1e ,~ ?
effective date of the 2010 Comprehensive Plan, Policy 101.18.1(1); ~p~ ; ~
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WHEREAS, Monroe County has received a number of applications for ves@gi~ts~d ~
beneficial use under the 2010 Comprehensive Plan; ~?J 9 ~ :::0
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WHEREAS, Monroe County desires to codify state and federal requiremen~fomesW;o
rights and beneficial use to avoid a taking "as established by current land use case law," Poli~ c
101.18.5(1),2010 Comprehensive Plan;
WHEREAS, Monroe County desires to expeditiously adopt land development regulations
that establish procedures, criteria and standards to implement the vested rights and beneficial use
provisions of the 2010 Comprehensive Plan;
WHEREAS, portions of the beneficial use provisions of the 1986 Land Development
Regulations, Code 99.5-172, were stricken by the Court in Gonzalez v. Monroe County, 593 So.
2d 1143 (Fla. 3d DCA 1992), the Code should also be amended consistent with the Court's order;
WHEREAS, portions of Ordinance 052-1997 were rejected by the state land planning
agency (the Department of Community Affairs "DCA");
WHEREAS, the state land planning agency proposed certain remedial amendments
contained in an agreement between the DCA and Monroe County;
WHEREAS, these remedial amendments are contained in this proposed Ordinance; and
WHEREAS, the Land Development Regulations proposed herein are in compliance with
all applicable requirements of Chapter 163 and 380 ofthe Florida Statutes, including the
"Principles for Guiding Development," and with Section 9.5-511 ofthe Monroe County Code;
NOW THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY, FLORIDA, that:
Section 1. Purpose. The purpose of this ordinance is to implement Policy 101.18 ofthe Year
2010 Monroe County Comprehensive Plan pursuant to Florida Statutes Sections 163.3202 and
380.0552(8).
Section 2. Monroe County Code 99.5-171 is hereby deleted and replaced with the following:
Sec. 9.5-171. Beneficial Use.
(a) An applicant for a beneficial use determination will be afforded a quasi-
judicial, evidentiary hearing, in front of a Special Master who will make a
proposed determination and a statement of remedial action (if necessary). The
proposed determination will be forwarded to the Board of County Commissioners
for final approval. Interested persons will be afforded the opportunity to appear
and introduce evidence and make arguments for or against the determination
during the evidentiary hearing before the Special Master.
Section 3. Monroe County Code 99.5-172 is hereby deleted and replaced with the following:
Sec. 9.5-172. Procedures, standards and criteria for relief.
In making the proposed determination the Special Master will consider, in addition to those
guidelines in the Year 2010 Comprehensive Plan, the following:
(a) Whether the Comprehensive Plan or Land Development Regulations in effect at
the time of the filing of the beneficial use application substantially advances a
legitimate government interest; and
(b) Whether the Comprehensive Plan or Land Development Regulations in effect at
the time of the filing of the beneficial use application denies all reasonable
economic use ofthe property.
(c ) RELEVANT PARCEL. If an applicant owns more than one platted lot, a
question may exist as to whether more than one of applicant's platted lots should
be considered as one parcel for the beneficial use determination. In determining
the relevant parcel, the Special Master should focus on "the parcel as a whole"
and not on particular segments or portions ofthe parcel. The Special Master shall
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consider three factors to determine whether individual platted lots should be
combined and considered as one parcel for the purpose of the beneficial use
determination:
(1) The "physical continuity" ofthe lots or parcels; and
(2) The "unity of ownership" of the lots or parcels (i.e. does the
applicant own all ofthe lots or parcels in question); and
(3) The "unity of use" between the lots or parcels, i.e., platted urban
lots should generally be considered as separate uses, but can be
combined for purposes of a beneficial use determination if the lots
are part of a larger parcel. For platted lots, this determination
should be based on an analysis of the following factors established
by the Florida Supreme Court, which must be applied to the
particular facts and circumstances on a case-by-case basis:
a. Was it the intent of the landowner to use the lot as a single
use;
b. What is the adaptability of the property to be used as a
single or separate use versus a combined use;
c. Whether the lots are dependent on each other for the ability
to have a single use;
d. Whether unity of the lots is the highest, best use of the
parcel;
e. What is the current zoning of each tract;
f. What is the physical size and appearance of the land and
what uses exist on surrounding land (for example what
types of structures presently exist on the lot( s) and
surrounding parcels);
g. What is the actual use of the land; and
h. What is the possibility of the lots being combined in use in
the reasonably near future.
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(d) Once the relevant parcel is determined, the Special Master must analyze:
(1) The economic impact ofthe regulation on the applicant; and
(2) The extent to which the regulation has interfered with the
applicant's investment-backed expectations, including any
relevant factors such as:
a. The history ofthe property (i.e., When was it purchased?,
How much land was purchased?, Where was the land
located?, What was the nature oftitle?, What was the
composition ofthe land and how was it initially used?);
b. The history of the development of the property (i.e.,What
was built on the property and by whom?, How was it
subdivided and to whom and at what price was it sold?,
What plats were filed?, What infrastructure is in place?);
c. The history of zoning and regulation (i.e., How and when
was the land classified?, How was the use proscribed?,
What changes in classifications occurred?),
d. How development changed when title was passed;
e. What is the present nature and extent of the property;
f. What were the reasonable expectations ofthe landowner
under state common law;
g. What were the reasonable expectations ofthe neighboring
landowners under state common law;
h. What was the diminution in the investment-backed
expectations of the landowner, if any, after passage ofthe
regulation; and
1. What was the appraised fair market value immediately
before and immediately after the effective date of the
regulation.
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Section 4. Monroe County Code 99.5-173 is hereby created to read:
Sec. 9.5-173. Relief Under Beneficial Use.
(a) In order to establish that the applicant is entitled to relief, an applicant for a
beneficial use must demonstrate that the Comprehensive Plan and
Land Development Regulations in effect at the time ofthe filing of
the beneficial use application deprive the applicant of all reasonable economic
use ofthe property. The remedies available to an applicant for beneficial use will
include issuance of a permit or just compensation by purchase of all or some of
the lots or parcels or purchase of the development rights (leaving the lot in private
ownership) at the fair market value immediately prior to the Comprehensive Plan
or Land Development Regulations in effect at the time of the filing of the
beneficial use application.
(1) Just compensation shall be the preferred option if:
(a) Beneficial use has been deprived by operation of environmental
policies or objectives contained in the Comprehensive Plan and
Land Development Regulations in effect at the time of the filing of
the beneficial use application or Article VII, Division 8 of the Land
Development Regulations ("Environmental Criteria"); or
(b) A strict, literal application or enforcement of the
Comprehensive Plan or Land Development Regulations
in effect at the time of filing of the beneficial use application
prevents all reasonable economic use, but is required to protect the
public health, welfare or safety.
(2) If just compensation is not preferred, the determination may allow for
additional use(s) or density beyond that allowed by a strict, literal
application ofthe Comprehensive Plan and Land Development
Regulations in effect at the time of filing of the beneficial use application
on this particular property (i.e., some additional, reasonable economic use)
which may include the granting of an:
(a) Exemption; or
(b) Permit for development despite the offending regulation (an order
shall state which offending regulation(s) are inapplicable or waived
and such a permit shall be subject to normal construction deadlines
and expiration dates under Chapter 6 ofthe Monroe County Code);
or
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(c) Transferable development rights (TDRs); or
(d) Any combination of the above; or
(e) Any other relief the County determines appropriate and adequate to
prevent a taking, i.e., which will allow for reasonable economic use
ofthe subject property or just compensation under the goals,
objectives and policies ofthe Comprehensive Plan and Land
Development Regulations in effect at the time of the filing of the
beneficial use application.
Section 5. Monroe County Code 9.5-174 is hereby created to read:
Sec. 9.5-174. Final Determination by BOCC.
(a) The Board of County Commissioners is the only entity which has final authority
to grant or deny vested rights or beneficial uses subject to appeal by DCA under
Chapter 380. In approving, denying or modifying an order from a Special Master
granting or denying an applicant vested rights or beneficial use, the Board of
County Commissioners will ensure that the Special Master has conducted the
evidentiary hearing in a manner that is consistent with this article and the Year
2010 Comprehensive Plan. The Board of County Commissioners will approve or
reject the Special Master's determination during a public hearing. The public
shall be given the opportunity to be heard and make arguments for or against the
determination during the Board's public hearing.
Section 6. Monroe County Code 9.5-182 is hereby deleted and replaced with the following:
Section 9.5-182. Procedure for Vested Rights Determinations.
(a) An applicant for vested rights determination will be afforded a quasi-judicial,
evidentiary hearing in front of a Special Master who will make a proposed
determination and a statement of what right(s) is (are) vested. Interested persons
will be afforded the opportunity to appear and introduce evidence and argument
for or against the determination during the evidentiary hearing. The Special
Master's proposed determination will be forwarded to the Board of County
Commissioners for final approval.
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Section 7. Monroe County Code 9.5-183 is hereby deleted and replaced with the following:
Section 9.5-183. Standards and Criteria for Vested Rights.
In making the proposed determination, the Special Master will consider, in furtherance of
the guidelines contained in Policy 101.18 of the Year 2010 Comprehensive Plan, the following
criteria:
(a) The vested rights determination shall be limited to rights acquired prior to
adoption of the Comprehensive Plan or Land Development Regulations in effect
at the time of filing of the vested rights application and shall vest only that
development specifically and expressly contemplated by the valid, unexpired
"official act" ofthe County.
(b) The applicant shall have the burden of proof to demonstrate that:
(1) There is a valid, unexpired "official act" (as enumerated below in
subsection (b) (1) a, (b) (1) b, (b) (1) c or (b) (1) d) ofthe County
approving the proposed development that occurred prior to the
effective date of the Comprehensive Plan or Land Development
Regulations in effect at the time of filing of the vested rights
application, i.e., January 4, 1996. To be a "valid" act, the act must
have been in compliance with the land development regulations
that existed at the time of approval, and the approval must have
been issued by an official or commission properly delegated with
the authority to issue the approval. Anyone of the following may
constitute an "official act" of the County for purposes of the
vested rights determination:
a. A valid, unexpired building permit issued prior to the
effective date of the Comprehensive Plan or Land
Development Regulations in effect at the time of filing of
the vested rights application, i.e., January 4, 1996; or
b. One or more valid, unexpired permits or approvals issued
by the County, except that mere approval of a land use
designation, map amendment, zoning designation or
rezoning is insufficient to establish vested rights without
additional permits or approvals for a specific development
project, (i.e., mere zoning cannot be considered an "official
act" that can form the basis of a vested rights
determination); or
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c. A subdivision plat recorded in the official records of the
County, which fulfills the criteria set forth in Florida
Statutes 380.05 (18), may be an "official act" except that
individual lots within the subdivision must also
demonstrate that this applicant acquired a vested right to
build on the individual lot by obtaining additional
governmental approvals or official acts concerning
development on the individual lot prior to adoption of the
Comprehensive Plan and Land Development Regulations in
effect at the time ofthe filing of the vested rights
application, and an applicant must still demonstrate
compliance with (b) (2), (b) (3) and (b) (4) ofthis section
with respect to development on each individual lot; or
d. A valid, unexpired vested rights determination approved
pursuant to the 1986 Comprehensive Plan and Land
Development Regulations, Code ~ ~9.5-181 through 9.5-
184; and
(2) This individual, particular applicant:
a. Relied upon the official act in "good faith;" (For example,
the applicant must not have had notice or knowledge of an
imminent or pending change in zoning, allowable uses or
density, etc. A change is "imminent" or "pending" if
notice of the change was published or there are active and
documented efforts to develop and approve the proposed
change at the time the property was purchased or expenses
were incurred); and
b. Had a reliance that was "reasonable;" (For example, an
act of purchasing the property, entering into contracts
or incurring additional obligations done after the 2010
Comprehensive Plan was pending or became effective does
not constitute reasonable reliance); and
(3) This applicant incurred such "substantial obligations and
expenditures" that it would be highly inequitable or unjust to
require that the development conform with the Comprehensive
Plan and Land Development Regulations in effect at the time ofthe
filing of the vested rights application. To meet this requirement
the applicant must demonstrate that:
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a. Application of the Comprehensive Plan and Land
Development Regulations in effect at the time of the filing
of the vested rights application would prevent or prohibit
the applicant from completing the proposed development.
For example, ifthe applicant could still complete the
proposed development under the Comprehensive Plan and
Land Development Regulations in effect at the time ofthe
filing of the vested rights application without undue
hardship by making mere modifications to the development
plan, the applicant cannot demonstrate a vested right and
must make the modifications required by the
Comprehensive Plan and Land Development Regulations in
effect at the time ofthe filing of the vested rights
application; and
b. Substantial changes of position or expenditures incurred
prior to the "official act" upon which the vested rights
claim is based are undertaken at the applicant's own risk
and will not be considered in making a vested rights
determination; and
(4) Development of this project has commenced and has continued in
good faith without substantial interruption.
Section 8. Monroe County Code g9.5-184 is hereby deleted and replaced with the following:
Section 9.5-184. Limitations on Vested Rights Determinations.
(a) In furtherance of those guidelines listed in Policy 101.18 ofthe Year 2010
Comprehensive Plan, a Vested Rights determination shall also contain the
following:
1. Verification that the applicant has met the burden of proof for the items
listed in Code g9.5-183; and
2. A clear statement of what part ofthe applicant's development is vested
(e.g., density, setbacks, open space requirements); and
3. A clear statement of which Comprehensive Plan goals, policies
and/or objectives and which Land Development Regulations in effect at
the time of the filing of the application, the applicant is vested from; and
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4. A clear statement to the applicant that construction must continue in good
faith and meet all construction deadlines contained in Chapter 6 of the
Monroe County Code or the vested rights determination will expire and
any and all rights acquired under the determination will be forfeited;
5. Notwithstanding Chapter 6 ofthe Monroe County Code, a vested rights
final order will expire in 5 years with no possibility of extension.
(b) The vested rights determination shall be limited to rights acquired prior to
adoption ofthe Comprehensive Plan and Land Development Regulations in effect
at the time of the filing ofthe vested rights application, but after adoption of the
1986 Comprehensive Plan (unless a prior, valid and unexpired vested rights
determination was obtained under the 1986 Comprehensive Plan or Code g9.5-
181 et. seq). The vested rights determination shall vest only that development
specifically and expressly contemplated by a valid, unexpired "official act" of
Monroe County.
Section 9. Severability. If any section, subsection, sentence, clause or provision ofthis
Ordinance is held invalid, the remainder of this Ordinance shall not be affected by such
invalidity.
Section 10. Conflict. All ordinances or parts of ordinances in conflict with this Ordinance are
hereby repealed to the extent of said conflict.
Section 11. Codification. The provisions of this Ordinance shall be included and incorporated in
the Code of Ordinances of the County of Monroe, Florida, as an addition or amendment thereto.
The person authorized to prepare the supplement (e.g., Municipal Code Corporation) is hereby
authorized to make nonsubstantive changes insofar as it is necessary to embody this ordinance
into the existing Code of Ordinances. For example, the Municipal Code Corporation may:
1. Organize the ordinance material into appropriate revisions;
2. Provide appropriate catchlines, headings and titles for sections and other
subdivisions of the Code printed in the supplement, and make changes in such
catchlines, headings and titles;
3. Assign appropriate numbers to sections and other subdivisions to be inserted in
the Code and, where necessary to accommodate new material, change existing
section or other subdivision numbers; and
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4. Change the words "this ordinance" or words of the same meaning to "this
chapter," "this article," "this division," etc., as the cause may be, or to "section _
to _" (inserting section numbers to indicate the sections ofthe Code which
embody the substantive sections of the ordinance incorporated into the Code).
Section 12. Effective date. This Ordinance shall take effect immediately upon approval under
Florida Statutes Chapter 380 and receipt of official notice from the Office ofthe Secretary of
State of the State of Florida that this Ordinance has been filed with said office.
Section 13. The Clerk of the Board is hereby directed to transmit a certified copy of this
Ordinance to the Florida Department of Community Affairs.
Section 14. The Clerk of the Board is hereby directed to transmit a certified copy of this
Ordinance to the Secretary of State of the State of Florida.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County,
Florida, at a meeting of the Board held on the 10thdayof June , A.D., 1998.
Mayor Jack London
yes
Mayor Pro Tern Harvey
yes
absent
Commissioner Douglass
Commissioner Freeman
yes
Commissioner Reich
yes
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BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
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ATTEST: DANNY L. KOLHAGE, CLERK
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY
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BRANCH OFHCE
3117 OVERSEAS HIGHWAY
MARATHON, FLORIDA 33050
TEL. (305) 289-6027
FAX (305) 289-1745
CLERK OF THE CIRCUIT COURT
MONROE COUNTY
500 WHITEHEAD STREET
KEY WEST, FLORIDA 33040
TEL. (305) 292-3550
FAX (30S) 295-3660
BRANCH OFFICE
88820 OVERSEAS HIGHWAY
PLANTATION KEY, FLORIDA 33070
TEL. (305) 852-7145
FAX (305) 852-7146
June 19, 1998
CERTIFIED MAIL
RETURN RECEIPT RlEQUFSTED
Mrs. Liz Cloud
Florida Department of State
Bureau of Administrative Code and Laws
The Elliot Building
401 South Monroe Stred
Tallahassee, Fl. 32399-0250
Dear Mrs. Cloud:
Enclosed please find a certified copy of Ordinance No. 021-1998
adopting land development regulations to implement the beneficial use and
vested rights provisions of the 2010 Comprehensive Plan; establishing
procedures, standards and criteria for beneficial use and vested rights
detenninations.
This Ordinance was adopted by the Monroe County Board of County
Commissioners at a Regular Meeting, in fOl1nal session, on June 10, 1993.
Mrs. Liz Cloud
June 19, 1998
Page 2
Please file for record.
Sincerely,
Danny L. Kolhage
Clerk of the Circuit Court
and ex officio Clerk to the
Board of County Commissioners
By: Ruth Ann Jantzen
Enclosure
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. Dep ty Cle
cc: Mayor Jack London
Mayor Emeritus Wilhelmina Harvey
Commissioner Keith Douglass
Commissioner Shirley Freeman
Commissioner Mary Kay Reich
County Attorney
County Administrator
Growth Management Director
File
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MRS. LIZ CLOUD
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- Complete items 1 and/or 2 lor additional services.
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card to you.
- Attach this form to the Iront of the mail piece, or on the back il space does not 1. 0 Addressee's Address
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FLORIDA DEPT. OF STATE o Registe- ..ad Certified
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TALLAHASSEE, FL. 32399-0250 7. Date of Delivery
021-1998) JUN ')') 19~~l
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D1-VIS'I01'lS OF FLORIDA DEPARTMENT OF STATE
Offic~ of the Secretary
DIvIsIOn of Administrative Services
QlvlslOn of Corporatio"ns
DlVISlon otCultural Affairs
DIVIsIOn of Elections
DIvIsIOn of Historical Resources
DivIsIon of Library and Information ServIceS
DlvislOn of Licensing
M":MBER OF THE FLORIDA CABINET
HISTORIC PRESERVATION BOARDS
, Historic Florida Keys Preservation Board
Historic Palm Beach County Preservation Board
Historic Pensacola Preservation Board
Historic SI. Augustine Preservation Board
Historic Tallahassee Preservation Board
Historic Tampa/HiIlsborough County
Preservation Board
FLORIDA DEPARrMENT OF STATE
Sandra B. Mortham
Secretary of State
DNISION OF ELECTIONS
RINGLlNG MUSEUM OF ART
June 24, 1998
Honorable Danny L. Kolhage
Clerk to Board of County Commissioners
Monroe County
500 Whitehead Street
Key West, Florida 33040
Dear Mr. Kolhage:
Pursuant to the provisions of Section 125.66, Florida Statutes, this will acknowledge
your three letters dated June 17 and 19, 1998 and certified copy each of Monroe
County Ordinance No. 98-19, which was filed in this office on June 19, 1998; 98-20,
and 98-21, which were filed in this office on June 22, 1998.
Sincerely,
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Liz Cloud, Chief
Bureau of Administrative Code
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BUREAU OF ADMINISTRATIVE CODE
The Elliot Building . 401 South Monroe Street . Tallahassee, Florida 32399-0250 . (850) 488-8427
FAX: (850) 488-7869 . WWW Address: http://www.dos.state.tl.us . E-Mail: election@mail.dos.state.fl.us
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County of Monroe
Growth Management Division
2798 Overseas Highway
Suite 400
Marathon, Florida 33050
Voice: (305) 289-2500
FAX: (305) 289-2536
Board of County Commissioners
Mayor Jack London, Dist. 2
Mayor Pro Tern Wilhelmina Harvey, Dist. I
Commissioner Shirley Freeman, Dist. 3
Commissioner Keith Douglass, Dist. 4
Commissioner Mary Kay Reich, Dist. 5
September 17, 1998
Municipal Code Corporation
Supplement Department
1700 Capitol Circle, SW
Tallahassee, FL 32310
ATIN: Ms. Evelyn Jefferson
RE: Monroe County Ordinance No. 021-1998
Beneficial Use and Vested Rights
Dear Ms. Jefferson:
Enclosed is a copy of Monroe County Ordinance 021-1998, adopting Land Development Regulations to
implement the Vested Rights and Beneficial Use provisions of the 2010 Comprehensive Plan and
establishing procedures, standards and criteria for Beneficial Use and Vested Rights determinations.
This ordinance was adopted by the Monroe County Board of County Commissioners on June 10, 1998 and
was transmitted to the Department of Community Affairs for review on June 22, 1998. Final Order DCA98-
OR-133 was published in the Florida Administrative Weekly on August 21, 1998. I spoke with Paula Ford,
Agency Clerk, today and she informed me that there were no challenges to the Order and the ordinance was
effective on September 12, 1998.
I am forwarding this ordinance to you for incorporation into the Monroe County Code. If you have any
questions, please call me at (305) 289-2517. Thank you for your assistance.
Sincerely,
~ J. {!L;d
Isabel T. Reid, Senior Administrative Assistant
Growth Management Division
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Enclosure
cc:
Bol:!):d of County Commissioners
...u8:nny L. Kolhage, Clerk of the Circuit Court
James L. Roberts, County Administrator
James T. Hendrick, County Attomey
Robert L. Herman, Director of Growth Management
Timothy J. McGarry, Director of Planning
Garth C. Coller, Land Use Attomey
Kim Ogren, Sr. Administrator, Comprehensive Plan