HomeMy WebLinkAboutItem R10
BOARD OF COUNTY COMMISSION
AGENDA ITEM SUMMARY
Meeting Date: 2/17/10 - KL
Bulk Item: Yes ~ No
Division County Attorney's Office
Staff Contact Person: Lisa Granger #3170/#2507
AGENDA ITEM WORDING:
Approval to advertise and hold a Public Hearing on March 17,2010 at 3:00 p.m. or as soon thereafter as may be
heard in Marathon, pursuant to Sec. 102-108, MCC, to consider adoption of a Resolution approving the
Recommended Order/Proposed Beneficial Use Determination of Special Master 101m Van Laningham dated
12110/09 recommending that Applicants Gerald and Katherine Walsh NOT be granted relief.
ITEM BACKGROUND:
Gerald and Katherine Walsh are the owners of30 Sexton Cove Road, Key Largo, FL, 33037. (Block 10, Lot 15,
Sexton Cove Estates, Key Largo, RE# 00532701-026800). According to Monroe County property records, the
Applicants purchased the property on 8/31/89 for $85,000. The property is not the Applicant's homestead but
rather a vacation property as the Applicants reside in Coral Springs, FL. Archive records show the property has
been assessed as a mobile home since 1970. The subject property isa waterfront lot (approximately 50 x 75)
within land designated as Urban Residential Mobile Home with a legally established mobile home existing on
the property since 1970. The Applicants have enjoyed the use of a residential mobile home on the property
since 1989 which continues today.
In February 2008, the Applicants were cited for building a screened wood structure/porch without a permit
which also violated the County's building code for safety. On April 24, 2008 the Code Enforcement Special
Magistrate found the Applicants in violation of2 separate Monroe County Codes (Case No. CE08020010). The
Applicants were given the option of coming into compliance or appealing within 30 days. The Applicants did
not appeal nor come into compliance and the Special Magistrate imposed a lien on the property on 8/28/2008.
."
On 6/25/08, the Applicants applied for an after-the-fact permit for the screened wood structure/porch. On
811l/08, staff wrote a letter to the Applicants outlining why the after-the-fact permit could not be granted,
specifying an alternative and explaining they had 30 days within which to appeal the decision made on 8/ll/08.
The Applicants neither appealed the administrative decision nor gained compliance.
On 10/29/09, the Special Master heard testimony and argument pursuant to the Walsh's application for
Beneficial Use Determination. Mr. and Mrs. Walsh were both present and given the opportunity to testify, enter ~
documents into evidence and question the County's witnesses. On 12110/09, the Special Master issued a
Recommended Order/Proposed Beneficial Use Determination that the Applicants did not meet their burden of
showing that the County's action in denying the after-the-fact permit for the screen wood structure/porch is a
taking of their property and that Gerald and Katherine Walsh NOT be granted relief.
The purpose of Division 2. Beneficial Use Determination, MCC is to ....ensure that the adoption or application
of a county land development regulation or comprehensive plan policy does not result in an unconstitutional
taking of private property." Sec. 102-108, MCC, requires the Board to set the matter for public hearing,
providing notice and allowing the Applicant to be heard prior to the decision of the Board. The
recommendation of the Special Magistrate is not binding on the Board. At the hearing, the Board, by
resolution, shall approve, modify, reverse or approve with conditions the recommendations of the Special
magistrate based on the standards set forth in Sections 102-109 and 102-110.
PREVIOUS RELEVANT BOCC ACTION:
N/A
CONTRACT/AGREEMENT CHANGES:
N/A
ST AFF RECOMMENDATIONS:
Approval to advertise and hold a public hearing at 3:00 p.m. or as soon thereafter as may be heard
on March 17, 2010 in Marathon, FL.
TOTAL COST:
N/A
BUDGETED: Yes
No
COST TO COUNTY:
N/A
SOURCE OF FUNDS:
REVENUE PRODUCING: Yes No X AMOUNT PER MONTH Year
APPROVED BY, County A~MBlPurchaSing _ Risk Management
DOCUMENTATION:
Included X
Not Required_
DISPOSITION:
Revised 2/05
AGENDA ITEM #
NOTICE OF PUBLIC HEARING
FOR BENEFICIAL USE FINAL DETERMINATION
NOTICE IS HEREBY GIVEN TO WHOM IT MAY CONCERN that on March 17,2010 at 3:00 P.M.
or as soon thereafter as may be heard at the Marathon Government Center, 2798 Overseas Highway,
Marathon, Florida, pursuant to Sec. 102-108, Monroe County Code, the Board of County Commissioners
of Monroe County intends to consider the following Beneficial Use Final Determination:
Applicant Name
Property Description
Gerald and Katherine Walsh
Block 10, Lot 15 Sexton Cove Estates
Key Largo, Florida RE: 00532701-026800;
more particularly described.as 30 Sexton Cove Road,
Key Largo, FL 33037
Pursuant to Section 286.0105, Florida Statutes, notice is given that if a person decides to appeal any decision
made by the Board with respect to any matter considered at such hearings or meetings, he will need a record
of the proceedings, and that, for such purpose, he may need to ensure that a verbatim record of the
proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based.
ADA ASSISTANCE: If you are a person with a disability who needs special accommodations in order to
participate in this proceeding, please contact the County Administrator's Office, by phoning (305) 292-4441,
between the hours of 8:30 a.m. - 5:00 p.m., no later than 2 working days prior to the scheduled meeting; if you
are hearing or voice impaired, call 1/7111/.
Dated at Key West, Florida, this 1 ih day of February, 2010.
(SEAL)
DANNY L. KOLHAGE, Clerk ofthe Circuit Court
and ex officio Clerk of the Board of County
Commissioners of Monroe County, Florida
Publication date(s):
Key West Citizen (Fr)
Keynoter (Sa)
Reporter (Fr)
2/19/10
2/20/10
2/19/10
OKl!~ErY ~O~~~~E
(305) 294-4841
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BOAR!!> Of COUN1Y COMMISSltONIERS
Mayor Sylvia Murphy, District 5
Mayor Pro Tem Heather Carruthers, District 3
George Neugent, District 2
Kim Wigingon, District 1
Mario Di Gennaro, District 4
19tf..ice at t.fte &u.nttJ ~J
9'.l9.91o.a:.l026
llil12m StIieet, Suite #408
J{ey. We"t, g.e 33041 ~1026
(30S) 292-347
Via Certified Mail # 7009 0820 000033834111
February 1, 2010
Gerald and Katherine Walsh
9500 N. W. 37 Court
Coral Springs, FL 33065
Re: Request for Public Hearing Re: Special Master's
Proposed Beneficial Use Determination - Gerald and Katherine Walsh
Dear Mr. and Mrs. Walsh:
Pursuant to Sec. 102-108, Monroe County Code, please be advised that we will be placing an item on
the February 17, 2010 agenda of the Board of County Commissioners seeking approval to advertise and hold
a public hearing on March 17,2010 at 3:00 p.m. or as soon thereafter as may be heard in Marathon, Florida
to consider the Special Master's Recommended Order/Proposed Beneficial Use Determination issued
December 10, 2009 regarding Gerald and Katherine Walsh, (copy enclosed). The public hearing is being held
to afford you, the Applicants, the opportunity to be heard prior to the decision of the Board on the Special
Magistrate's Recommendation.
Pursuant to Section 286.0105, Florida Statutes, notice is given that if a person decides to appeal any
decision made by the Board with respect to any matter considered at such hearings or meetings, he will need
a record of the proceedings, and that, for such purpose, he may need to ensure that a verbatim record of the
proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based.
This office will advise you of the status of our request for approval to advertise and hold the public
hearing following the BOCC meeting on February 17, 2010. Should you have any questions, please feel free
to contact Assistant County Attorney Lisa Granger by phoning (305) 292-3470.
Very~1r~
~eit!JM for:
LISA GRANGER
Assistant County Attorney
KlvIP:
Enclosures
cc: 30 Sexton Cove Road, Key Largo, FL 33037
!
11II Complete items 1, 2. and 3. Also complete
item 4 If Restricted Delivery is desired.
11II Print your name and address on the reverse
so that we can return the card to you.
11II Attach this card to the back of the mailpiece,
or on the front if space permits,
1. Article Addressed to:
I-
B. Received by ( Printed Name)
D. Is delivery address different from item 1?
If YES, enter delivery address below:
Gerald and Katherine Walsh
9500 ]~. w. 37 Court
Coral Springs, FL 33065
2. Article Number
(rransfar from saNies label)
PS Form 3811, February 2004
3. Service Type
iB Certified Mail D Express Mall .
Cl Registered Cl Return Receipt fo/Merchandlse
. Cllnsured Mail Cl C.O.D.
4. Restricted Delivery? (Extra Fee) Cl Yas.
7009 0820 0000 3383 4111
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Domestic Return Receipt
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__ State of Florida fa
DiVision of Administrative Hearings
Charlie enst
Govrmor
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Harry L. HOlJper
Dl:'puty Chi/;'f
Administrativt' Law Judge
Robert S. Cohen
DIrector and Chief Judge
December 10,
o EG~\~ea~]"m'
2009\'
Claudia LIl;l.d6
Clerk of the DIvisIon
Townsley Schwab, Senior Director
Planning and Environmental Resources
Marathon Government Center
2798 Overseas Highway, Suite 400
Marathon, Florida 33050
QEe I 1\ 2009 xl
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GROUffi\ Mf\~~GElIlOO ONlSIO"
Re; GERALD AND KATHERINE WALSH vs. MONROE 'COUNTY FLORIDA,
Case No. 09-6381
Dear Mr. Schwab:
Enclosed is my Recommended Order in the referenced case.
Also enclosed are the Petitioner's Exhibits numbered 1-2 and the
Respondent's Exhibits numbered 1-2, Copies of this letter will
serve to notify the parties that my Recommended Order and the
hearing record have been transmitted this date.
Sincerely,
JOHN G, VAN LANINGHAM
Administrative Law Judge
JVL/ld
Enclosures
cc: Lisa Granger, Esquire
Gerald and Katherine Walsh
TIll' DeSoto BuHd1l1g. 1230 ApaJadll.'e Parkway, Tallahass~l", Florida 32399-3060
MminiMrauve Law (8501 488-9675> SUNCOM 271;H)675 > Fa" Filing (850) 9:21 6847
Fax SUNCOM 291-6847 > Judges of Compensation Claims (850)487-1911
.....1..... rl......i-. ...+........ ~ .....
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BEFORE THE CODE ENFORCEMENT SPECIAL MAGISTRATE
JOHN G. VAN LANINGHAM
MONROECOUNT~FLO~DA
GERALD AND KA THERlNE WALSH, )
)
Petitioners, )
)
vs. ) Case No. 09-6381-
)
MONROE COUNTY FLORIDA. )
)
Respondent. )
)
RECOMMENDED ORDER
This case was heard at public hearing before the Code Enforcement Special Magistrate
on October 29, 2009, as scheduled, at the Monroe COWlty Government Regional Center, located
at 2798 Overseas Highway, Marathon, Florida. Petitioners presented two witnesses, namely
themselves, Mr. and Mrs. Walsh. In addition, Petitioner's Exhibits I and 2 were received in
evidence. Testifying ~ln behalfofRespondent were: Tiffany Stankiewicz, Development
Administrator; Timothy Douma, Biologist; and Townsley Schwab, Director of Planning and
Environmental Resources. Respondent's Exhibits I and 2 were admitted into evidence as well.
Having fully considered the evidence presented at hearing; and having considered the
parties' respective proposed recommended orders, which were timely filed in accordance with
the deadline established at the conclusion of the hearing, the following findings offact and
conclusions oflaw 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 Real Estate Number 00532701-026800, is situated
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within Monroe CoWlty (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, which 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 ]989. 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 mobile 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 familyfs use and enjoyment of the Property
actually depends on the porch.
5. In February 2008, the County cited Walsh for having constructed the porch without a
permit, in violation ofthe County's building code. This citation initiated an enforcement action,
which proceeded to hearing before the Special Magistrate on April 24, 2008. _ 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 order, the County informed Walsh
that, to cure the violations, Walsh would need to apply for and obtain either an after-the-fact
permit for the porch, which would authorize the continued existence of the structure, or a
demolition pennit authorizing the removal of the porch. On June 25,2008, Walsh applied for an
afi:er~the- fact permit.
7. By letter dated August 11,2008, the County's Planning and Environmental Resources
Department notified Walsh that the application for an after-the-fact permit had been denied. The
County gave multiple reasons for refusing Walsh's application. including the failure of the porch
to meet the County's shoreline setback requirements. The letter notifying Walsh of the Countis
decision informed Walsh ofthe right to appeal the County's decision by submitting a completed
appeal form within "30 working days. II
2
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iff
B. Walsh elected not to appeal the denial ofthe application for an after-the-fact pennit.
Instead, on September 2,2008, Walsh submitted an application for a detennination of beneficial
use, giving rise to the instant proceeding.
9. The evidence shows, and the undersigned finds, that if Walsh were required to
demolish the porch to bring the Property into compliance with the County's codes, an outcome
which is the logical ramification of the decision to deny an after-the-fact permit for the structure,
then the Walsh fumily's use and enjoyment of the Property would be curtailed because the large,
extended Walsh family would no longer be able to dine together on the porch. The inability of
the Walsh family 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
probably a source of frustration and anger too, all ofwhich likely would make the Property less
, .
attractive and less valuable to the Walsh family.
10. Nevertheless, the evidence presented at hearing 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 alL economic, beneficial, or productive use of the
Property. There is no persuasive evidence concerning the objective dimfuution in the Property's
value, ifany, that the removal of the porch would cause, and thus no basis for a determination
that such diminution would be "substantiall1 relative to the Property's fair market value as a
whole. There is, further, no evidence that the COWlty'S decisions have interfered materially with
Walsh's reasonable expectations, if any, concerning the return on an investment in, or involving,
the Property. FinaHy, 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 support 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 determines, as a matter of ultimate fact, that such use would constitute a substantial
economic, beneficial, or productive use of the Property.
12. Walsh argues that the County's detennination that the porch vio lates setback
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 ofthis
proceeding is not to review the correctness (on the merits) ofthe 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 whether the County's decision effectively has
caused an unconstitutional taking of property. The question at hand, in other words, is not
whether the County was right to deny Walsh's application for an after-the-fact permit, but
whether the denial would cause such a deprivation as to be an unconstitutional taking of Walsh's
Property (absent compensation).
CONCLUSIONS OF LAW
13. The undersigned, as Special Magistrate, has jurisdiction to conduct a hearing on an
application for a beneficial use determination and to make a recdmmendation to the County's
,
Planning Director regarding whether relief is appropriate. See MARATHON COUNTY, FLA.,
CODE art. N, div. 1 ("CODE"), ~ 102~1O6 (2009).
14. It was "the purpose and intention of the county conunlssioners," in adopting the
ordinances establishing the right to obtain a beneficial use determination, "io ensure that each
and every landowner [would have] a beneficial use of his property in accordance with the
requirements of the Fifth and Fourteenth Amendments to the United States Constitution and to
provide a procedure whereby landowners who believe they are deprived of aH beneficial use
may secure relief through an efficient nonjudicial procedure." CODE ~ 102~79. The beneficial
use determination ("BUD") process affords a nonjudicial forum for the resolution of "a
landowner's claim that a land development regulation. . . has had an unconstitutional effect on
property. . . ." CODE ~ 102-103(b). When, "after a fmal decision or action by the county," a
"landowner is of the opinion that the adoption or application of a county land development
regulation . . . has caused a taking of the landowner's property, " the landowner must exhaust
his administrative remedies in a BUD proceeding "prior to seeking relief from the courts."
CODE ~ 102-102.
IS. As the applicant, Walsh has the burden of proving, by a preponderance of the
evidence, that relief is appropriate. See CODE ~ L02-109(b).
16. The standard of decision in a BUD proceeding is set forth in Section 102-109 of
the CODE as follows:
4
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In furtherance of the purpose and intent of this division, . . .
relief under this division may be granted where a court of
competent jurisdiction likely would 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 expectations,
statutes of limitation, laces, or other preclusions to relief.
Whether such liabil ity, at the time of application under this
division,likely to be established by a court should be detennined
based on applicable statutory and case law at the time an
application is considered under this division.
17. As the foregoing provisions of the CODE make clear, the ultimate issue to be
detennined in a BUD proceeding is whether the County's adoption or application of a land use
regulation has 50 narrowed the landowner' 5 range of interests in his private property as to
constitute a "regulatory taking" of the property, which would be constitutionally impermissible
unless the government were to compensate the 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
Property .
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 Coun has described] as compensable without a case-specific inquiry. . . ." Id.
at 1015, 112 S. Ct. at 2893, 120 L. Ed. 2d at 812. The fIrst involves "regUlations that compel
the property owner to suffer a physical 'invasion' of his property." Id. The second set of per
se unconstitutional takings comprises situations where the "regulation denies all ecooomically
beneficial or productive use of the land." rd., 112. S. Ct at 2893, 120 L. Eel. 2d at 813.
Claims that fall into one or the other of these categories are sometimes referred to as
"categorical" or "facial" 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), 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 to the Walsh family, which prizes the porch, but neither
would it amount to a total deprivation of all 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 asserting an "as-applied" taking, in which "the
landowner challenges the specific impact of the regulation on a particular property." Shands v.
City of Marathon, 999 So. 2d 718, 723 (Fla. 3d DCA 2008). The standard for decision in a
case involving an alleged as-applied taking is Mwhether there has been a substantial deprivation
of economic use or reasonable investment-backed expectations." Id. (emphasis in original).
,
This standard differs from the more stringent, total deprivation standard applicable in facial
. .
takings cases. but it is nevertheless a difficult one to meet because "[p J roof of a substantial
deprivation · requires a fact-intensive inquiry of the impact of the regulation on the economic
viability of the landowner's property by analyzing permissible uses before and after the
enactment of the regulation.''' Golf Club of Plantation. Inc. v. City of Plantation, 717 So. 2d
166, 169 {Fla. 4th DCA 1998) (quoting Tavlor v. VUlage of North Palm Beach, 659 So. 2d
1167, 1171 n.l (Fla. 4th DCAI995)).
21. The fact-fmder in an asMapplied claim should consider several factors that the U.S.
Supreme Court has identified as having "particular significance." Penn Central Transp. Co. v.
New York CitY:, 438 U.S. 104, 124, 98 S. Ct. 2646, 2659, 57 L. Ed. 2d 631, 648 (1978). As
the Court observed in Penn Central,
The economic impact of the regulation on the claimant and
particularly, the extent to which the regulation has interfered with
distinct investment-backed expectations are, 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 common good.
Id.
22. The undersigned considered these factors in evaluating the evidence presented and
found, as set 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 ofWa]shrs property_ Accordingly, relief is not appropriate in this instance.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that Walsh not be granted relief.
DONE AND ENTERED at the Division of Administrative Hearings, TaUahassce,
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, Esg uire
Assistant Monroe County Attorney
Ill] ] 2th Street, 4th Floor, 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
7
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· Department of (I
Environmental Protection
Jeb Bush
Governor
South District, Marathon Branch Office
2796 Overseas Highway, Suite 221
Marathon, Aorlda 33050-4276
. Telephone 305/289-2310
Colleen M. Castille
Secretary
September 30, 2005
Mr. and Mrs. Gerald Walsh
9500 N.W. 3ih Court
Coral Springs, FL 33065
Re: Monroe County.- ERP
File No. 44-0254392-001
Lt. 15, Bk, 10, Sexton Cove
30 Se~lon Cove Rd., Key Largo
Dear Mr. and Mrs. Walsh:
,
Thank you for your application to replace a storm damaged dock wi,th a 215 square foot
wooden dock in Florida Bay, Section 1, Township 61 South, Range 39 East, Monroe County. This
type of activity may require authorization for construction and operation of tht7 project (regulatory
authorization), unless otherwise exempt by statute or rule, and an authorization to use state-owned
submerged lands (proprietary autb.orization). YOur reqtlest has 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 or
more of the authOlizations, 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 authorization(s) granted may no longer be valid at the time of conunencement of
the project. Please contact us prior to beginning your project if you wish to make any changes.
REGULA T,ORY REVIEW - APPROVED
Based on the information you sent to us, we have determined 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 40E.4.051(3)(d), Florida Administrative Code.
(
PROPRIETARY REVIEW - APPROVED
Your project Occurs on state-owned, submerged land and will require authorization from rhe
Department to use tl~ese lands for pIivate 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 desclibed and is consistent with the terms and conditions therein, we
find your project qualifies for a consent to use state-owned submerged lands. This consent is
conditioned upon acceptance of and COI?pJ i~.nce with the. attached General Consent Conditions.
~ -, . ,.r. f:,;i ..."' .
Printed on recycled pope,.
p~~~Ct2
If
At-/plicillion No.: 44.0254392-001_
- .Aj1plicant: Mr. and Mrs. Gerald WHish
Page 2 of2
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A copy of your notice also ~JlS.been. sent, to the U.S. Army Corps of Engineers (USACOE) for
review. The USACOE may re~uire a separa rmit. Failure to obtain this authorization prior to
construction could subject;You to enforceme action by that agency. For further infonnation, you
should contact the USACO at 305-526-7181
This notice constitutes final agency action and is subject to 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.fl.us. When referring to this project, please
reference the file number listed above.
Sincerely"
O"~
k';2y'
Environmental Specialist II
Submerged Landt and
Environmental Resource Program
GKljgb
Enclosures:
Rights of Arfecled Parties
Notice of Delerminalion of Exemption
Slale Lands General Consenl Conditions
cc: U.S. Army Corps of Engineers, Miami
Bureau of Public Lands Administration
\(
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County of Monroe
Growth Management Division
Planning & Environmental Resources
Department
2798 Overseas Highway, Suite 410
Marathon, FL 3JOSO
Voice: (305) 289.2500
FAX: (305) 289-2536
Board of COUl1tv Commissioners
Mayor Charles "Sonny" McCoy, Dist 3
Mayor Pro Tern Mario DiGennaro, Disl. 4
Commissioner GC"Orge Neugent, Disr. 2
Commissioner Oix ie Spehar, Dist. t
Commissioner Sylvia 1. Murphy, Dist. 5
We strive to be caring, prlPfessional and fair
August 11,2008
Gerald and Katherine Walsh
9500 NW 37th Court
Coml Springs, FL 33065
,. .
RE: Permit Application # 08302374. After-the-Fact Screen Porch, Block 10, Lot IS, Sexton Cove Estates, Key
Largo, Real Estate No. 00532701-026800
Dear.Mr. and Mrs. Walsh,
The Planning and Environmental Resources Department has reviewed your after-the-fact application for a
screened porch on your above referenced property in Key Largo. Unfortunately, we are unable to penn it 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 manmade (dredged) 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 Siroelures shall be set back asfoJlows:
(3) Along open water shorelines not adjacent to manrnade canals, channels, or basins, and which
have been altered by the legal placement offill:
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 mangrove fringe exists. principal structures shaH be set back at least thirty (30)
feet from the mean high w~ter (MHW) line, provided that native vegetation exists or is
plant~d 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 in fill lots surrounded by signi ticant 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 the 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
J.. L L. t- \
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e
principal structures to he set back as far as practicable or in line with adjacent principal
structures. In DO event sball the setback be less than twenty (20) feet (emphasis added).
Since the existing mobile home does not meet any of the setbacks stated above bur 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
9.5-1 44(c) Enlargements and Extensions states;
Nonconfonning structures which are used in a manner conforming to the provisions of this chapter may
be enlarged or extended provided tbat the nonconformity is not furtber violated (emphasis added).
Jerefore, if the screened structure is considered a part of 1 an addition to the principal structure, it cannot be
a proved due to the fact that it further violates the existing no conforming setback for principal structures.
S auld the screened structure be considered an accessory to he principal structure, development is governed by
CC Section 9.5-349(0) Accessory Structures. which states, in part;
Accessory structures within the shoreline setback shall be constructed at a foundation height not to
exceed eighteen (I 8) inches above existing grade and shall meet the following design criteria:
(2) Along open water shorelines which have been altered by 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):
a. Tn no event shall 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 shall be set back a
minimum of fifteen (15) feet, as measured from the mean liigh water (MHW) line or the
landward extent of the mangroves. . .
Therefore, while compliance with the 30 percent coverage of aU structurc:s in the shoreline setback is unknown.
since the screened structure exceeds the foundation limit of eighteen inches and the minimum setback requirement
of fifteen (IS) 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.enclosed 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.
n 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:
I. If considered part of the principal structure, the screened structure does not meet the minimum thirty (30)
or twenty (20) foor setbacks required by MCC Section 9.5-349 Shoreline Setbacks
2. If considered part of the principal structure. the screened structure further violates the nonconfonnity, as
prohibited in MCC Section 9.56144 Nonconforming Slructures.
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.S-349(f) Enclosed Structures and Gazebos.
Alternatively, a screened structure could be pennined on the property provided that: the foundation does not exceed eighteen (18) inches above grade; the height does not exceed twelve (12) feet: the size does not exceed
(4
e
.
two hundred (200) square feel; the structure is set back from MHW at least fifteen 05) feet; and, the cumulative
coverage of all structures within the thirty (30) foot shoreline setbaclc area does not exceed thirty percent (JO%).
Should you wish to appeal this administrative decision, please submit a completed appeal form (enclosed) to each
of the following offices listed below within 30 working days of the receipt of this letter.
Planning Commission Coordinator
Monroe County Planning Department
Suite 400
2798 Overseas Highway
Marathon, FL 33050-2227
Roman Gastesi, County Administrator
Public Service Building
Wing ill
5100 Cotlege Rd.
Key West, FL 33040
rf you have any questions or need assistance, please do not hesitate to contact me.
Sin/ly,
/(//\~;~~~
Ralph Gouldy /
Senior Administrator, Environmental Resources
Monroe County Growth Management Division
(305) 289~2S00
cc; Roman Gastesi, County Administrator
Andrew Trivette, Director of Growth Manngement
TOMlSlcy Schwab, Planning Direcror
Joe Paskalik, Building Official
Dan Gargas, Assistant Building Official
Timothy Douma. Biologist
Planning Commission Coordinator
It
g e'tatd 'l/ CW af~h, ~ c:If.
clltto'tnE.!:J a.t Law
9500 NoW, 37TH COURT
CORAL SPRINGS, FLORIDA 33065
8ROWARD (954)755-9310
FAX (954)755-9294
August 19, 2008
Planning & Environmental Resources Department
COWlty of Monroe
Growth Management Division, Suite 410
2798 Overseas Highway
~arathon,FL 33050
Re: Application for beneficial use determination
Gerald V. and Katherine A. Walsh
Permit Application #08302374
Real Estate No. 00532701~026800
Gentlemen:
We hereby apply for a beneficial use detennination under Article VI, Division 2,
Section 9.5.171 of the Monroe county Code for a screen porch that we added to our
mobile home in North Key Largo without a proper building permit. An after-the-fact
building pennit was applied for but denied by letter dated August 11, 2008.
The improvement made to our property is descrihed a~ a non-enclosed efl7/'~bo
constructed within the waterside setback and not attached to a principal structure
previously existing on the property. The improvement was inadvertently constructed
slightly higher and slightly larger than the Code authorizes, and cannot be reasonabfy
~odified to comply with the parameters of the Code. -
-
Contrary to the conclusion of the August 11 pennit denial, 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 enlargement or addition to the
principal structure. -
(Lt SfovtAe..~- 2-
Iq
.,
This is not an appeal of the administrative order, which denied a building permit,
because the improvement made to the property admittedly inadvertently exceeded the
height and size allowed by the Code.
We hereby ask that a beneficial use determination be made with respect to the
new construction. because it improves the appearance of the mobile home, does not
detract from the appearance, use or occupancy ohny adjacent property, and is
completely in keeping with the character of the neighborhood. In this regard, 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 of a singlewide
mobile home is a clear deprivation of the economic value oftbe property, and the
County's demand that the improvement be destroyed, and co,g,ts and labor be wasted,
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 infonnation can be presented
which will show the suitability ofthe structure within the neighborhood, and the
unreasonableness of the reque that the structure be demolished and costs incurred
because it doesn't meet t e parJters. We ask that relief be granted under Section
9.5-173 of the Code. / ~/ /'y ,
Signed' ;~~
Ge~~. LJ~
atherine A. Walsh
'l-"D
To:
From:
Through:
Date:
Subject:
MEMORANDUM
MONROE COUNTY PLAt""lNING & ENVIRONMENTAL RESOURCES DEPARTMENT
We strive to he caring, profesliional andfair
Special Magistrate
Tiffany Stankiewicz, De~:g.ment Administrato~/6'
Janis Vaseris, BiologistJV ~
Tim Douma, Biologist
Townsley Schwab, Director of Planning & Environmental Resources&
September 2, 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 ("Applicants"), 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 permitted after-the-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 pUIpose and intention of
10 the Beneficial Use Detennination (BUD) Ordinance is to "ensure 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." 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. . .." S 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 75, 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
III Property History
The Monroe 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.
1) 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 peml.it application 08302374 was submitted June 25, 2008 for an after-
the-fact screened porch (wood). On August 11,2008, Ralph Gotildy, Senior
Administrator, 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 permitting a screened structure. The applicants had the
right to appeal the administrative decision within 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 Monroe County
Code Enforcement for the wood structure. 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 lot with a mobile home and is located adjacent to Sexton
CoveIFlorida Bay. The site also contains areas of concrete, 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 unpennitted wooden dock
constructed sometime between February 2006 and February 2007 extends from the marginal
page:l of3
Walsh BUD StfRpt daled 09022009.doc
Reviewed by~
"bl...
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 nonconforming 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 of their property. A residential use has existed on the
15 subject site since 1970. Denial of the after-the-fact permit for the gazebo does 'not deprive
16 Applicants all beneficial use of their property.
17
Page 3 of3
Walsh BUD Stf Rpt dated 09022009.doc
Reviewed by L
""23
MONROE COUNTY, FLORIDA
DEPARTMENT OF PLANNING AND ENVIRONMENTAL
RESOURCES
APPLICATION FOR
BENEFICIAL USE DETERMINATION (BUD)
Administrative Fee: $ 1,437.00
This application is intended to facilitate processing of applications submitted pursuant to
sections 102-102 through 102-110 of the Land Development Regulations (LDRs), Beneficial
Use Determinations (the BUD Ordinance). '
Please provide all information required by Section 102-105(b), of the BUD Ordinance.
Incomplete applications will be returned to the applicant and will not be processed. A
separate application and application fee must be submitted for each parcel, unless
contiguous parcels are the subject of the application. Please attach additional sheets as
.._.-~ necessary in order to respond fully the requirements of the BUD Ordinance.
In accordance with the process set forth in Section 102-105, of the BUD, once a complete
application is accepted, a special master will be assigned to make a recommended
determination to the Board of County Commissioners. The special master may require the
applicant and! or landowner to provide additional information in order to make a
determination.
If you have any questions or need assistance to complete this application, please contact the
Planning Department at (305) 289-2500.
TO BE COMPLETED BY THE PLANNING DEPARTMENT:
Date Application Received by Department:
Date Application Transmitted to County Attorney:
Application Deemed Sufficient? See ~102-105(d), LDRs. Yes No
If Yes:
(i) Date Application Deemed Sufficient:
(ii) Complete Last Section of this Form.
IfNa, date of Notice to Applicant; see ~102-105(d)(1), LDRs:
PAGE 1 OF8
BENEFICIAL USE ApPLICATION
TO BE COMPLETED BY THE APPLICANT: Please complete this
section and provide all requested information. In addition to the information
requested here, the applicant may provide any other information relevant to the
determination of the special master, in accordance with the criteria set forth in
the BUD Ordinance, including section 102-109, "Beneficial Use Standards,"
and section 102-110, "Granting of Relief."
1. CONTACT INFORMATION:
a. Landowner Information
Name:
GERALD V. AND KATHERINE A. WALSH
Address:
9500 N.W. 37 Ct.
Coral Sprinqs, FL 33065
Phone Number:
(305) 451-4064
(954) 755-9310
b. Agent/Applicant (If different from Landowner):
Name:
Address:
Phone Number:
PAGE 2 oF8
BENEFICIAL USE ApPLICATION
2. LEGAL DESCRIPTION (please include a copy of the County
property record card with the application):
a. Lot 15 Block 10
b. Subdivision SEXTON COVE ESTATES SUBDIVISION
c. Island (Key) KEY LARGO
d. Real Estate (RE) Nwnber 532701-026800
3. LETTER OF AGENCY:
If a person other than the landowner is requesting a Beneficial Use
Determination, please include a notarized letter of agency from the landowner
authorizing the person to represent them with respect to this application.
Except as specifically provided otherwise in the BUD Ordinance, the
landowner will be bound by the representations, obligations, and agreements
made by the landowner's agent in the course of the BUD process.
4. DATE OF ACQUISITION; ATTEMPTS TO SELL:
a. What date was the Property transferred to the Landowner? Please include a
copy of the deed with this application. Augus t 31, 1989
b. From who was the Property transferred?
LUCILLE S. McCLEAN
c. What was the purchase price of the Property? $ 85, 000 . 00
d. List the date, amount, and party name for any offers by another person or
entity to acquire the Property, whether written or verbal.
Date Amount of Offer Name of Offeror
NONE $
$
$
$
PAGE 3 OF 8
BENEFICIAL USE ApPLICATION
e. Describe any attempts to sell the Property, including any offers, the
approximate dates the Property was for sale, the asking price, and, if offers
were made, the name of the person or entity making the offer.
Date Asking Price Name of Potential Purchaser(s)
NONE $
$
$
$
5. FINAL DECISION OF THE COUNTY:
Please provide the specific decision of the County for which relief is requested.
Include the effective date of the decision, the LDR or Comprehensive Plan
policy upon which the final decision was based, and the County agency or
official making the fmal decision.
(After the fact
c. Date Building Permit Application Filed: ,TunA ?: S, ? 0 0 R bui Iding permi t . )
d. Was a Building Permit Granted? no
e. If yes, on what date?
a. Effective Date and/ or Date of Final Decision Other than Building Permit:
August 11, 2008
b. County agency or official making Final Decision:
Planninq and Environmental
Resources Dept. - Growth Monogpmpnr
f. Section number of the LDR upon which Final Decision was based, if
applicable: Section 118-12 (f) Gazebos
g. Goal, Objective, or Policy Number of the Comprehensive Plan upon which
Final Decision was based, if applicable: structure believed to exceed
height and squarp fooh'gp of .=111 o~!/al)J E' <;;:tr'lC'tnres.
h. Additional information related to the Final Decision of the County:
PAGE 4 OF8
BENEFICIAL USE ApPLICATION
6. DESCRIBE IN DETAIL THE PROPERTY'S PHYSICAL AND
ENVIRONMENTAL FEATURES, TOTAL ACREAGE, AND THE
NUMBER OF SQUARE FEET OF HABITAT TYPES
CURRENTLY FOUND ON THE PROPERTY. PLEASE
INCLUDE A BIOLOGIST'S STATEMENT OF HABITAT
VERIFYING THIS INFORMATION.
Habitat Type: Residential
Real property - single wide
Mobile Home.
Square Feet
648
TOTAL SQUARE FEET /
ACREAGE OF PROPERTY: 3726 square feet.
7. INDICATE THE USE OF THE PROPERTY AS FOLLOWS:
a. At the time of acquisition by the Landowner: residential prop. sing.1e family
b. At the time of the Final Decision indicated above: residential prop. . single fan
residential prop. single
c. At the time of submittal of the BUD Application: famil v- improved by. gazebo
d. In any manner not described in a-c above:
8. DESCRIBE THE TYPE AND EXTENT OF ANY
DEVELOPMENT ON THE PROPERTY, INCLUDING ANY
ADJACENT PROPERTY CURRENTLY OR PREVIOUSLY
OWNED BY THE LANDOWNER OR USED IN CONJUNCTION
WITH THE PROPERTY.
Lot improved by single wide mobile home and screened porch, wooden
dock, chain link fence, patio and boat ramp.
PAGE 5 OF 8
BENEFICIAL USE ApPLICATION
9. DESCRIBE ANY IMPROVEMENTS TO THE PROPERTY,
INCLUDING THE DATE EACH IMPROVEMENT WAS MADE
AND THE COST OF THE IMPROVEMENT.
Sinqle wide mobile home, 1969, cost unknown
Seawall, 1974 cost unknown; Patio 1980 cost unknown
Boat ramp, 1974 cost unknown; Chain link fence'79 cost unknown
Patio 1980 cost unknown: Asphalt paving '81 cost unknown
Wooden dock '02 cost $1,000.00
lO.DESCRIBE THE ALLOWABLE USES OF THE PROPERTY,
FROM THE TIME THE LANDOWNER ACQUIRED IT UNTIL
THE TIME OF THIS APPLICATION, INCLUDING
ALLOWABLE DENSITY FOR THE SITE, PERMITTED AND
CONDITIONAL USES, OPEN SPACE RATIOS, AND OTHER
FACTORS AFFECTING THE PROPERTY'S DEVELOPMENT
POTENTIAL.
Property limited to sinqle family residence.
11. DESCRIBE IN DETAIL THE FORM OF RELIEF DESIRED BY
THE LANDOWNER, PURSUANT TO SECTION 102~110 OF THE
BUD ORDINANCE.
Applicants desire the recision of the demolition order,
and the stop work order, and granting of a building permit
for the gazebo to complete the strll~t:tlre and make it: bl1g-
proof accordinq to the design submitted.
12.PLEASE INCLUDE WITH THIS APPLICATION MAPS THAT
SHOW THE PROPERTY, AS FOLLOWS:
a. at the time of acquisition;
b. at the time of the Final Decision of the County;
PAGE 6 OF 8
BENEFICIAL USE ApPLICATION
c. at the time of submission of the BUD application.
Maps should indicate the land use designation, future land use designation~
aerial photography, and environmental conditions and habitat on the property
at the above times.
13.DESCRIBE ALL EFFORTS TO SECURE DEVELOPMENT
APPROVAL FOR THE PROPERTY, INCLUDING DATE OF
APPLICATION; NAME OF THE LOCAL, STATE, OR FEDERAL
PERMITTING AGENCY; NATURE OF APPROVAL, DENIAL,
OR APPEAL SOUGHT; DISPOSITION; AND THE DATE OF
DISPOSITION. .
After-the-fact building permit applied for on June 25, 2008,
which was denied on August 11, 2008.
14. PLEASE ATTACH ANY LETTERS OF COORDINATION
REQUIRED BY SECTION 110-141 OF THE COUNTY LAND
DEVELOPMENT REGULATIONS.
In accordance with section 102-105(c), LDRs, please read and attest to
the following:
ALL INFORMATION PROVIDED AS PART OF THIS
APPLICATION HAS BEEN VERIFIED AND IS TRUE AND
$)ff~
5//0{ / !/f
, ,
Applicant's Signature
&lc~A J./J Y,. WA L$ /7
Date
Applicant's Printed Name
Sworn before me this A:( Af- day of #A ,Y
\"WltlIllIllltJll.
"",~~~ J~ 1-i1.J'11~;"
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s ~--.... ..... '\~ ~
f 'I..... ~OTAI?)- \"$) \
F !MyComm. EXPi'es\ ~
:: : July 31,2009 i "
~ .n:" NO.00432712 : cr f
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.
Notary Public
My Commission Expires
PAGE? OF8
BENEFICIAL USE ApPLICATION
Landowner's Signature, if different than Applicant
Date
Landowner's Printed N arne, if different than Applicant
Sworn before me this
day of
,2
Notary Public
My Commission Expires
STOP. THE FOLLOWING IS TO BE COMPLETED BY THE
PLANNING DEPARTMENT.
Date of County notice of sufficiency mailed to Applicant:
Name and Contact Information of Special Master:
Name:
Address:
Phone Number:
Date application and any additional materials mailed to Special Master by
Planning Director
PAGE 8 OF8
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A TT ACHMENT TO BENEFICIAL USE APPLICATION
The issue is whether the order to demolish a gazebo-like structure (screened
porch) that was constructed in a waterside setback without a permit results in a denial of
all reasonable use of the property. A single wide mobile home is permitted on the
property and used by the ovmers, and the improvement that is the subject of this
application is not an enlargement or addition to the existing permitted structure.
Since the property was purchased eighteen years ago, the owners' six children
have married and all live in South Florida with their children. Visits by family members
are practically impossible because of the difficulty of fitting more than four people in a
confined space at one time, and seating more than four people around a table in a
singlewide mobile home.
The addition of the porch directly off the living area that can be used to handle the
overflow and serve family meals without descending or climbing stairs to go outside
makes the existing mobile home "workable".
An argument might be made that the patio can be used to handle the overflow and
for serving meals but this ignores issues of lighting, mosquitoes and other insects in
addition to the difficulty that Katherine A. Walsh (one of the owners) has climbing stairs,
because of strokes that she suffered six years ago.
An analysis ofthe Monroe County Building Code and real property in general
makes it clear that what constitutes "reasonable economic use" as used in the Code is a
relative term. Although it is correct that there has been a single wide trailer on the
property for more than eighteen years, the property does not adequately serve the needs
ofthe ovmers, and if the property were compared to adjacent properties and it did not
have a screened porch, it would be substantially less desirable and substantially less
economically valuable. In this regard, the County's requirement that the structure be
demolished is a clear taking of substantial value and is not necessary to prevent a
nuisance or to protect the health, safety or welfare of the citizens.
The improvement that is the subject of this application is clearly in keeping with
the character of the neighborhood, and is similar to adjacent properties, and in fact,
improves the esthetics of the neighborhood with a structure similar to adjacent structures
rather than the blunt nose of a singlewide trailer. The Construction also in no way
interferes with the over-water views of any neighboring properties. See the attached
photos.
06/29/2009
15:55
PUBLIX 376 ~ 919547559294
NO. 880 lil01
Nadia Spencer Botany Consultant Isa C&rtified Arborisf Habitat restoration ConS/J/li;lnt
Habitat Description
L.egal Description: Lot 15 Block 10 Sexton Cove Estates
Key Largo Monroe County Florida
~---------------- --~-~-------~----- -- - __d ------- ____._________.._n.--. .----- -- -- ---J u n e 297 2009
Mr. Gera.ld V. Walsh
9500 NW 37 CT.
Coral Springs, FL. 33065
Dear Mr. Walsh,
Parcel 1.0. : Real Estate number' 532701-0268 Site visite: June 28,2009
location: This property is located in Sexton Cove Estates and is listed Tier III -
infill Area (Monroe County maps-Sheet 105.Aerial$ 2004). It is located on 30 Sexton Cove Road.
Description ;The subject property is a water front property flanked by two
developped properties. It is fenced on three sides.
Habitat Type; The entire Sexton Cove Estates subdivision is highly. developped
and the native vegetation is practically non existant. This subdIvision is nothing but
fand fill covered with pearock and concrete pads,
Lot 15, Block 10 resembles the other lots in the neighborhood. It ;s lanscaped
with three Coconut palm trees, Cocos nuclfera growing along the southwest edge of
the property. The road side is landscaped with two Bougainvillea vines, Bougainvillea
spectabifis. No important woody species listed by the County or the State of Florida
were found.
Disturbance: A few Brazilian pepper saplings (Schinus terebinthifofius), listed
as Exotic Pest Invasive Plants Category I by the Florida Pest Plant Council were found
growing with the Bougainvillea vines. Three non woody Exotic Pest Invasive species
were also part of the landscape: Aspargus fern, Asparagus densiflorus and Oyester
plants, Rhoeo spathacea (listed category 1 by EPPC) and Snake plants, Sanseverla
hyacinthoides (listed category II by EPPC).
The bottom of the sea, adjacent to the property, is well preserved with a
healthy colony of Seagrass ; Turtle grass, Thalass;a testudinum, It is free of
abrasion or waste from human activities.
It has been a pleasure to have been of service to you and I thank you. Please
dO not hesitate to call me if you have any further questions.
Respectfully submitted,
Nadia Spencer.
Estalecare L.L.C. P,O.6ox 726 Key Largo Fl33037 {305} 852.1734
I}t t-.M.C(. ~~ ~
Property Search -- Monroe County Property Appraiser
Page I of 5
, Ervin A. Higgs, CFA
Property Appraiser
Monroe County, Florida
office (305) 292-3420
fax (305) 292-3501
Property Record View
Alternate Key: 1654558 Parcel 10: 00532701-026800
I
I Ownership Details
I Maifing Address:
WALSH GERALD V & KATHERINE A
! 9500 NW 37TH COURT
! CORAL SPRINGS, FL 33065
r-~
Property Details
I
I
I
--I
f
I
l
J
PC Code: 02 - MOBILE HOMES
Millage Group: 50DK
I Affordable Housing: No
Section-Township- 01-61-39
Range:
L;roperty Location: 30 SEXTON COVE RD KEY LARGO
Subdivision: SEXTON COVES ESTATES
Legal Description: BK 10 L T 15 SEXTON COVE ESTATES - RESUBDIVISION KEY LARGOPB6-30 OR555-905 OR880-2279 OR932-
654DfC OR932.655AFF OR1104-981/82(CAW) _______
Parcel Map
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6/15/2009
Property Search -- Monroe Count:vProperty Appraiser
Land Use Code
Q20W - MOB HOM WATERFRONT
Frontage
o
Depth
o
I
! Building Summary
Number of Buildings: 1
Number of Commercial Buildings: 0
Total Living Area: 648
Year Built: 1966
Land Area
3,800.00 SF
Page 2 of 5
~
I
I Building 1 Details
Building Type .B.1.
Effective Age 54
Year Built 1966
Functional Obs 0
Condition p..
Perimeter 132
Special Arch 0
Economic Obs 0
Quality Grade 350
Depreciation % 53
Grnd Floor Area 648
Inclusions: R1 includes 1 3-fixture bath and 1 kitchen.
Roof Type FLAT OR SHED Roof Cover METAL
Heat 1 NONE Heat 2 NONE
Heat Src 1 NONE Heat Src 2 NONE
Extra Features:
2 Fix Bath 0
3 Fix Bath 0
4 Fix Bath 0
5 Fix Bath 0
6 Fix Bath 0
7 Fix Bath 0
Extra Fix 0
nttn" / /mr.mrfl.on.rfPronSearch.asnx
Foundation CONC BLOCK
Bedrooms 1
Vacuum 0
Garbage Disposal 0
Compactor 0
Security 0
Intercom 0
Fireplaces 0
Dishwasher 0
6/15/2009
Map of30 Sexton Cove Rd Key Largo, FL by MapQuest
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Page 2 of2
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LAWRENCE P. FRANK
SURVEYORS " ENGINEERS · LAND PLANNERS
83266 OVERSEAS HIGHWAY. SUITE 500. ISLAMORAOA. FLORIDA 330,36
. Phone (305) 654-0764- FAX (305) 664-0816
A DlVlSION OF MEGA VISION BUSINESS CORPORAlloN LB. NO. 540B
CERllFlED TO: GERALD WAlSH
~OB N". 1(0-\.285
SEC. 1. '!VIP. 61 S., RGE. 39 E.
MONROE COUNTY, FLORIDA
lOT 15, BLOCK 10, SEXTON COVE ESTATES.
ACCORDING TO lHE PLAT THEREOF"; AS RECORDED IN
Pv"T 80cK S, PAGE' 30. Of THE PUBUC RECORDS Of
MONROE COUNTY. FLORIDA.
~
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~ SCAlE: 1"-30'
NOlE: AREA I'dllllN PLATTED LOT UNES COHTAINS 3,-\.1B.B SQUARE FEET
AREA B~ NDRlliWC:sr (pv"ITED) LOT UNE AND MEAN HIGH
WATER UN!': CONTAINS 307.7 SQUARE FEET.
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SURVEYOR'S NOlES;
1.) ALL CORN~S FOUND HAVE NO NUMBER DESlGNAllNC PREVIOUS SUR~OR OR COMP....NY EXCEPT AS SHO\\l'l.
2.~ All.. BEARINGS AND DISTANCES ARE ME....SURED PER PLAT UNLESS OTHERWISE NOTED. .
3. NO UNDERGROUND ENCROACHMENTS, FOUNDA1l0NS OR UnUnES HA'I<: BEEN LOCAtED OR SHO\\N UNLESS OlliERI'dSE NOlED.
<\-. NO INS'lRUIdENTS OF RECORD REFlEcllt>lG EASEMENTS, RlGI-lTS-OF-WAY AND/OR D'fJtIERSHIP I'IERE fURNiSHED '!HIS SURW;YOR
EXCEPT AS SHOWN HEREON.
5.) ElEVATION DATIJM: N.G.V.D, 1929, BEflCHMARK: S.N.O. ElEV,"4..Q FE/!" KB+jaO-51
BASIS OF BEARINGS: CIL SEXTON COVE RD. BEING HOO'50'20"W. ASSUMED PER Pl.AT
5.) lHlS IS TO CERTIFY iJ-IATI- HAVE CotlSULlEO THE F'EDER"-L INSJf'.ANCE /?DMINISlRATIOI-I fl.OOD HAZARD BOUNDARY MAP,
COMMUNI'JY No.125129, PANEL NO'. OBf2 G, EFfECll\1: DATE 2/15 02. AND THE HEREON DESCRIBED
PROi'ERiY APPEARS TO BE IN ZONE \'E, \'11m A BASE mVA1iON OF' 13 M.S.L.
7.) TIiE SURVEY DEPICTED HERE IS NOT COVEREO BY PROFESSIONAL UABIUTY INSURANCE.
ABBREVlA1l0N LEGEND:
..I.R FOUND IRON ROD, SIZE INOIOMS) SEC. SEcnON
S.I.P. SET IROH PIPE, 1/2. p.L,S. 14619 nIP. TO'ffl.lSHIP
F.I.P. roUND IRON PIPE, SIZE INDICATED Res:. RANGE
..N.D. fOONO NAIL AND OlSK ~1 DEED
S.N.D. SET NAIl. AND DISK. P.L-S. N4819 P PLAT
f.C.M. fOUND CONCRETI:: MONUMENT MEASURED
P.R.M. PERMANENT REFERENCE MONUMENT C CALCULATED
P.C,P. PERMANENT cotllROL POINT co~c. CONCRETE
P.L POlNT Of INlERSECnON cov. COVE\ED
P.c. POINT OF CURVE ClF CHAltf UNK FENCE
P.D.a. POINT OF 8EGlN!llNG CHI'( DVERHEAD 'MRE
RfW RIGHT-()f"-WAY ELEV. aEVAllON
Tfl'. lYPICA!.. VM WArm !dETER
pp POWiiR POL.E LP UGHT POLE
CERTIAED fOR BOUNDARY SVRVEY
I HEREay CERlll'Y THAT llilS SURVEY MEETS TIiE MINIMUM
TECHNICAL STANDARDS AS SET fORlH BY lHE FLORIDA
BOARD OF PROFESSIONAL SURVEYORS Al.jD hlAPPERS IN
CHAP1ER 61017-5, FLORlOA AD!dlIJlSiRATI\'E CODE.
PU~O SECllON 472.027: RORIOA STA1lJTES.
/' . c.-~ .r{ :..v~
lA ENeE: P. FRANK, P.LS. ftI4619 DAlE: 7/26/0"'-
UNLESS IT BEARS lHE SlGNAWRE AND mE ORIGINAL
RAISED SEAL Of A fLORIOA UCENSEO SURVEYOR ANO
MAPPER 1HIS DRAI'ltNG, SKETCH, PLAT OR IJAP !S FOR
lNfORMA1l0NAL PURPOSES ONLY AND IS NOT VAUD.
v; ffW r,ei/.A1 f?o~l!lI
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DEED (SfA1tJTORY FORM - SECIlON M9~ F.5.1
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LEAN, ~n unremarried widow, ana HAOREEN A. &MHEL, a
ollhf~.oI. woaan BrowoIIrd ,SC.'r 01" F"lodda . pn~.::uwl
<aMLD v. WAL H .nd U'rHBIUNE 'A. wALSK, nh wife
~~......w-1oI !i50() N.W. 37th Caurt, Co.ral Spdng., Florid. 3306.5
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take acknoWledqmontD. perBonally ap~ea~ed LUCI~~E S.
unremarried wido~. to ~e known to be tne person
and who exocuted tne foregoing instrum~nt and
bafora mo that ahe executed the same.
~y hand ~d ofticia~~:,~ the County and Sta~e
id this Jo:.::. day of ~ . 1989. ".
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ARTICLE IV. PROTECTION OF LANDO\VNERS' RIGHTS
Page 1 of8
ARTICLE IV. PROTECTION OF LANDOWNERS' RIGHTS
DIVISION 1. GENERALLY
Sec. 1 02~ 79. Purpose.
It is the purpose and intention of the board of county commissioners to ensure that each and every
landowner has a beneficial use of his property in accordance with the requirements of the Fifth and Fourteenth
Amendments to the United States Constitution and to provide a procedure whereby landowners who believe they
are deprived of all beneficial use may secure relief through an efficient nonjudicial procedure.
(Code 1979,99.5-161; Ord. No. 33-1986, S 8-101)
Sees. 102-80--102-101. Reserved.
DIVISION 2. BENEFICIAL USE DETERMINATIONS
Sec. 102~102. Generally.
If, after a final decision or action by the county, including available variances, a landowner is of the opinion
that the adoption or application of a county land development regulation or comprehensive plan policy has caused
a taking of the landowner's property, the procedures of this division shall be used prior to seeking relief from the
courts.
(Ord. No. 035-2007, S 2(9.5-171))
Sec. 102~103. Purpose and intent.
(a) The purpose of this division is to ensure that the adoption or application of a county land development
regulation or comprehensive plan policy does not result in an unconstitutional taking of private property.
(b) The intent of the board of county commissioners is that this division provide a means to resolve a
landowner's claim that a land development regulation or comprehensive plan policy has had an
unconstitutional effect on property in a nonjudicial forum. This division is not intended to provide relief
related to regulations promulgated by agencies other than the county or to provide relief for claims that are
not cognizable in court at the time of application under this division. Further, the procedures of thls division
are not intended, nor do they create, a judicial cause of action.
(Ord. No. 035-2007, S 2(9.5-172))
Sec. 1 02~1 04. Exhaustion.
Relief under this division cannot be established until the landowner has received a final decision on
development approval applications from the county, including building permit allocation system applications,
appeals, administratlve relief pursuant to section 138-54, and other available relief, exceptions, or variances,
unless the applicant asserts that a land development regulation or comprehensive plan policy, on its face, meets
the standards for relief in section 102M109.
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ARTICLE IV. PROTECTION OF LANDOWNERS' RIGHTS
Page 2 of 8
(Ord. No. 035-2007, S 2(9.5-173))
Sec. 102-105. Application; applicability; sufficiency.
(a) Generally. An application for a beneficial use determination may be made to the planning department
by filing an application and an application fee as established by the board.
(b) Contents of application. The application shall be submitted in a form established by the county and
shall include the following:
(1) Contact information. The name, address, and phone number of the landowner and applicant or
agent;
(2) Legal description. A legal description and the real estate or parcel number for the property;
(3) Letter of agency. If a person other than the landowner is requesting relief pursuant to this
division, a notarized letter of agency from the landowner authorizing the person to represent them
with respect to the application. Except as specifically provided herein, the landowner will be bound
by the representations, obligations, and agreements made by the landowner's agent in the course
of the beneficial use determination process. The term "applicant" as used in this division refers to
the landowner or the landowner's agent, as applicable; .
(4) Date of acquisition, offers to purchase, attempts to sell. Documentation of the date of
acquisition, the price incurred to acquire the property, the date and amount of any offers by any
person, corporation, governmental entity, or association to acquire the property, and any attempts
by the landowner to sell the property;
(5) Land development regulation or comprehensive plan policy. A-statement describing the land
development regulation, comprehensive plan policy, or other fina~ action of the county, which the
applicant believes necessitates relief under this division, including the effective date of the land
development regulation or comprehensive plan policy and/or the date of the final action by the
county related to the property. The application shall identify the subject land development
regulations or comprehensive plan policies of the county by section and number;
(6) Description of land. A description of the property's physical and environmental features, total
acreage, and use presently, at the time of acquisition, and upon the effective date of the land
development regulation or comprehensive plan policy or other final action the applicant believes
necessitates relief under this division;
(7) Improvements to land. Evidence of any investments made to improve the property, the date the
improvements were made, and the cost of the improvements;
(8) Description of allowable uses. A description of the type and extent of land uses allowed on the
property, from the time the applicant acquired the property until the date of application under this
division, including allowable density, permitted and conditional uses, open space ratios, and other
factors affecting the property's development potential;
(9) Requested relief. A statement regarding the form of relief requested by the landowner,
pursuant to section 102-110;
(10) Maps. Maps shall be included in the application, which show the property presently, at the
time of acquisition, and upon the effective date of the land development regulation, comprehensive
plan policy, or other action of the county the applicant believes necessitates relief under this
division. Maps shall indicate the land use designation, future land use designation, aerial
photography, and environmental conditions and habitat on the property at the above times;
(11) Previous development applications and appeals. A description of all efforts to seek approval
to develop the property, including date of application; name of the local, state, or federal permitting
agency; nature of approval, denial, or appeal sought; disposition; and the date of disposition;
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1/27/2010
ARTICLE IV. PROTECTION OF LANDOVVNERS' RIGHTS
Page 3 of8
(12) Agency approvals. Evidence of whether the applicant has received necessary approvals from
governmental agencies other than the county, which are required in order to undertake
development of the property, including, as applicable, evidence that approvals from other agencies
are not required;
(13) Signature of landowner and agent. The signature of landowner and agent, attesting to the
accuracy of the statements and representations made in the application; and
(14) Additional materials. Any other appraisals, studies, or evidence supporting the applicant's
contention that relief under this division is appropriate, including appraisals related to any alleged
diminution in fair market value of the property.
(c) Standards applicable to landowner and landowner's representative.
(1) The landowner and the landowner's representative shall exercise due diligence in the filing of
and legal bases asserted pursuant to an application for relief under this division.
(2) The signature upon the application by the landowner and the landowner's representative shall
constitute a certification that the landowner and landowner's representative have undertaken due
diligence in the filing of the application, that to the best of his knowledge the application is
supported by good grounds under applicable laws, and that the application has been filed in good
faith, consistent with the purpose and intent of this division. !
(3) The landowner and the landowner's representative shall have a continuing obligation
throughout the proceedings to correct any statement or representation found to have been incorrect
when made or which becomes incorrect by virtue of changed circumstances.
(4) If a claim for relief pursuant to this division is based upon facts the landowner or the
landowner's representative knew or should have known were not correct or upon assertions of law
that were frivolous, the special magistrate may dismiss the application and may recommend any
remedy or penalty to the board provided by law or ordinance. -
(d) Determination of sufficiency. Within 15 calendar days of accepting the application, the planning
director, or the planning director's designee, shall determine if the application is complete and includes the
materials and information listed in subsections (b)(1)--(13) of this section. The special magistrate may
require the landowner or the county to provide additional information in order to make a determination
under this division and may conduct a hearing on whether the application should be dismissed for failure to
include information necessary to make a recommendation, based on the standards set forth in this division.
(1) Determined insufficient. If the planning director determines the application is not complete, a
written notice shall be mailed to the applicant specifying the application's deficiencies. No further
action shall be taken on the application until the deficiencies are remedied. If the applicant fails to
correct the deficiencies within 30 calendar days of a notice of deficiencies, the application shall be
considered withdrawn, and the application fee shall be refunded to the applicant, upon request.
(2) Determined sufficient. When the application is determined sufficient, the planning director shall
notify the applicant in writing and, within 60 calendar days, forvvard the application to a special
magistrate to set a hearing date. The planning director may forvvard to the special magistrate
additional materials, applications, or decisions related to the application, including recommended
forms of relief, consistent with this division.
(Ord. No. 035-2007, S 2(9.5-174))
Sec. 1 02~1 06. Action by the special magistrate.
(a) Establishment of date for hearing and notice. The special magistrate shall schedule and hold a hearing
on an individual beneficial use determination application within 90 calendar days of receipt of the complete
application from the planning director.
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ARTICLE IV. PROTECTION OF LANDOWNERS' RIGHTS
Page 4 of8
(b) Hearing. At the hearing,. the landowner or landowner's representative shall present the landowner's
case and the planning director or the planning director's representative shall represent the county's case.
The special magistrate may accept briefs. evidence, reports, or proposed recommendations from the
parties.
(c) Recommendation of the special magistrate, Within 60 calendar days of the close of the hearing, the
special magistrate shall prepare and transmit in writing to the planning director and the landowner, or their
representatives, a recommendation regarding the application. based on the evidence submitted and the
standards set forth in sections 102-109 and 102-110.
(1) If the special magistrate's recommendation is that relief is not appropriate, the special
magistrate's recommendation shall specify the basis for the recommendation.
(2) If the special magistrate's recommendation is that relief is appropriate, the special magistrate's
recommendation shall:
a. Recommend a form of relief, pursuant to section 102-110; and
b. Indicate the basis for the recommendation, including, as applicable:
1. Identification of the county land development regulation, comprehensive plan
policy, or other action that resulted in the recommendation for relief; and
2. The date the land development regulation, comprehensive plan policy, or other
final action of the county affected the property so as to necessitate relief.
(Ord. No. 035-2007, S 2(9.5-175))
Sec. 102-107. Action by the planning director.
Based on the recommendations of the special magistrate, the planning director shall prepare the item for
consideration by the board of county commissioners. The planning director may not disturb or alter the
recommendations of the special magistrate. Within 30 calendar days of receipt of the recommendations of the
spectal magistrate, the planning director shall forward the special magistrate's recommendation to the board to set
a pUblic hearing on the matter. The planning director may include with the recommendation a proposed process
and schedule for implementing the special magistrate's recommendation.
(Ord. No. 035-2007, S 2(9.5-176))
Sec. 102-108. Action of the board.
Following receipt of the matter from the planning director, the board shall set the matter for a public
hearing, The county shall provide notice and the applicant shall be provided an opportunity to be heard prior to the
decision of the board. The recommendation of the special magistrate is not binding on the board. At the hearing,
the board, by resolution, shall approve, modify, reverse, or approve with conditions, the recommendations of the
special magistrate, based on the standards of sections 102-109 and 102-110. The resolution shall:
(1) State the date, if any, upon which any resolution granting relief will cease to be in effect;
(2) State that neither the board's resolution nor any process or evidence associated with this
division is an admission of a taking of property;
(3) Direct county staff to undertake any additional steps necessary to implement the resolution;
and
(4) Address other matters necessary to implement the purpose and intent of this division.
(Ord. No. 035-2007, S 2(9.5w177))
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ARTICLE IV. PROTECTION OF LANDOWNERS' RIGHTS
Page 5 of8
Sec. 102-109. Beneficial use standards.
(a) Standard. In furtherance of the purpose and intent of this division, and consistent with Policy 101.18.5
of the comprehensive plan, relief under this division may be granted where a court of competent jurisdiction
likely would 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 lack of investment-backed
expectations, statutes of limitation, laches, or other preclusions to relief. Whether such liability, at the time
of application under this division, is likely to be established by a court should be determined based on
applicable statutory and case law at the time an application is considered under this division.
(b) Burden. The applicant shall have the burden of showing that relief under this division is appropriate.
(Ord. No. 035-2007, S 2(9.5-178))
Sec. 102-110. Granting of relief.
(a) General. If the board determines that relief is appropriate und~r this division, relief may be granted, as
provided in this section and consistent with the comprehensive plan. .
, .
(b) Forms of relief. In order to avoid an unconstitutional result and to provide a landowner with an
economically viable use of property pursuant to this division, the special magistrate may recommend and
the board may allow for additional uses, density, or relief beyond that allowed by a literal application of the
land development regulations or comprehensive plan on the particular property, which may include:
(1) Redesignation of the property on the land use map or future land use map;
(2) Permits for development despite the literal application of the land development regulations and
comprehensive plan, although permits issued pursuant to this section shall be subject to applicable
construction deadlines and expiration dates under chapter 6;
(3) Transferable development rights (TDRs);
(4) Eligibility for dedication of the property pursuant to section 138-28(5);
(5) Repeal or amendment of the land development regulation or comprehensive plan policy
affecting the subject property;
(6) Any other economically beneficial use of the property or relief the board determines
appropriate and adequate under section 102-109 and the comprehensive plan; or
(7) Any combination of subsections (b )(1 )--(6) of this section.
(c) Minimum increase. Relief granted pursuant to this division shall be the minimum necessary to comply
with section 102-109. The highest, common, or expected use, is not intended as an appropriate remedy,
unless expressly required by applicable statute or case law.
(Ord. No. 035-2007, S 2(9.5-179))
Sees. 102-111--102-133. Reserved.
DIVISION 3. VESTED RIGHTS
Sec. 102-134. Determination of vested rights.
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(a) Purpose. Notwithstanding any other provision of this chapter. an application for a conditional use
permit may be approved if an applicant has demonstrated development expectations that are vested under
the standards of section 102-136.
(b) Limitation. An application for a determination of vested rights shall be filed within one year of the
effective date of the ordinance from which this chapter is derived or the alleged vested right shall be
deemed abandoned.
(Code 1979, 99.5-181; Ord. No. 33-1986,98-301)
Sec. 102-135. Procedure for vested rights determinations.
An applicant for vested rights determination will be afforded a quasi-judicial, evidentiary hearing in front of a
special magistrate who will make a proposed determination and a statement of what rights 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 magistrate's proposed determination shall be forwarded
to the board of county commissioners for final approval.
(Code 1979, S 9.5-182; Ord. No. 33-1986, 98-302; Ord. No. 21-1998.96)
!'
Sec. 102-136. Standards and criteria for vested rights.
In making the proposed determination, the special magistrate will consider, in furtherance of the guidelines
contained in Policy 101.18 of the Year 2010 Comprehensive Plan, the following criteria:
(1) 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 of the county.
(2) The applicant shall have the burden of proof to demonstrate that:
a. There is a valid, unexpired official act (as enumerated below in subsection (2)a.1, (2)a.2,
(2)a.3 or (2)a.4 of this section) of the 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. Any
one of the following may constitute an official act of the county for purposes of the vested
rights determination:
1. 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. Le., January 4. 1996;
2. 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;
3. A subdivision plat recorded in the official records of the county, which fulfills the
criteria set forth in F.S. 9 380.05(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
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official ,acts concerning development on the individual lot prior to adoption of the
comprehensive plan and land development regulations in effect at the time of the
filing of the vested rights application, and an applicant must still demonstrate
compliance with subsections (2)b., (2)c. and (2)d. of this section with respect to
development on each individual lot; or
4. A valid, unexpired vested rights determination approved pursuant to the 1986
Comprehensive Plan and land development regulations, sections 102-134--102-137;
b. This individual, particular applicant:
1. 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
2. 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); \
,
c. 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 of the filing of the vested rights
application. To meet this requirement the applicant must demonstrate that:
1. 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, if the applicant
could still complete the proposed development under the comprehensive plan and
land development regulations in effect at the time of the 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 of the filing of the vested rights application; and
2. 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;
d. Development of this project has commenced and has continued in good faith without
substantial interruption.
(Code 1979, S 9.5-183; Ord. No. 33-1986, S 8-303; Ord. No. 21-1998, S 7)
Sec. 102-137. Limitations on vested rights determinations.
(a) In furtherance of those guidelines listed in Policy 101.18 of the 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 section 102-
136;
(2) A clear statement of what part of the applicant's development is vested (e.g., density, setbacks,
open space requirements);
(3) A clear statement of which comprehensive plan goals, policies and/or objectives and which
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land development regulations in effect at the time of the filing of the application, the applicant is
vested from;
(4) A clear statement to the applicant that construction must continue in good faith and meet all
construction deadlines contained in chapter 6 or the vested rights determination will expire and any
and all rights acquired under the determination will be forfeited; and
(5) Notwithstanding chapter 6, a vested rights final order will expire in five years with no possibility
of extension.
(b) The vested rights determination shall be limited to rights acquired prior to adoption of the
comprehensive plan and land development regulations in effect at the time of the filing of the 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 section 102-134 et seq.). The
vested rights determination shall vest only that development specifically and expressly contemplated by a
valid, unexpired official act of the county.
(Code 1979, 99.5-184; Ord. No. 33-1986, 98-304; Ord. No. 4-1997, 927; Ord. No. 21-1998, 98)
Secs. 102-138--102-157. Reserved.
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ORIGINAL
ORDINANCE No. 035-2001
AN ORDINANCE BY THE MONROE COUNTY BOARD OF COUNTY
COMMISSIONERS REPEALING SECTIONS 9.5-171 THROUGH 9.5-
174 OF THE MONROE COUNTY CODE CONCERNING
BENEFIClAL USE DETERMINATIONS; .PROVIDING FOR NEW
REGULAtIONS CONCERNING BENEFICIAL USE
DETERMINATIONS; PROVIDING A FORUM FOR RELJEF;
PROVIDING AN APPLICATION PROCESS; PROVIDING FOR A
HEARlNG AND RECOMMENDATION BY A SPECIAL MASTER;
PROVIDNG FOR FORWARDING SUCH RECOMMENDA nON TO
THE BOARD OF COUNTY COMMMlSSIONERS FOR A HEARING;
PROVIDING FOR STANDARDS, BURDEN OF PROOF AND FORMS
OF REL~F; PROVIDING FOR CODIFICATION, SEVERABILITY
AND REP~AL OF INCONSISTENT PROVISIONS; PROVIDING FOR
FORWARDING OF THIS ORDJNANCE TO THE DEPARTMENT OF
COMMUNITY AFFAIRS AND THE SECRETARY OF STATE;
PROVIDING FOR AN EFFECTIVE DATE
Whereas, it is the intent of the Board of County Commissioners that land owners in
Monroe County have a beneficial use of their property, consistent with the u.s. and
Florida Constitutions~ and
Whereas, Policy 101.18.5 of the Monroe County Year 2010 Comprehensive Plan (Plan)
provides that neither the provisions of the Plan nor the Land Development Regulations
(the LDRs) shall deprive a property owner of aU reasonable economic use of a parcel of
real property; and
Whereas, Article VI, Division 2, LDRs, is intended to provide a non-judicial procedure
by which a property owner may seek relief from the literal application of applicable Plan
and LDR provisions, when such application is alleged to bave the effect of denying all
economically reasonable use of the property; and
Whereas, the Board of County Commissioners wishes to update Article VI, Division 2 in
order to provide additional guidance to applicants and County staff for processing
Beneficial Use Determination applications, consistent with applicable law; and
Whereas, the Board of County Commissioners has determined that these amendments
will ensure a fair and efficient forum through which property owners may apply for relief
from the adoption or application of Plan policies or LDR provisions, through a Beneficial
Use Determination process, consistent with the provisions of the Plan and applicable law;
and
ORIGINAL
Whereas. the Board of County Commissioners finds tnat this revised Ordinance is and
shall be implemented consistent with the provisions of the Plan and includes all standards
and remedies available pursuant to the Plan;
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY
COMMISSIONERS OF MONROE COUNTY:
Section 1. Current Sections 9.5-171 through 9.5-174 of the Monroe County Code are
hereby repealed in their entirety.
Section 2. The following provisions of the Monroe County Code are hereby added:
DMSION 2. BENEFICIAL USE DETERMINATIONS
Sec. 9.~171. Generally.
If, after a final decision or action by the County, including available variances, a
landowner is of the opinion that the adoption or application of a County land
development regulation or comprehensive plan policy hils caused a taking of the
landowner's property, the procedures of this division shall be,.used prior to seeking relief
from the courts.
Sec.9.5-172. Purpose and intent.
The purpose of this division is to ensure that the adoption or application ofa County land
development regulation or comprehensive plan polley does not result in an
unconstitutional taking of private property. -
The intent of the Board of County Commissioners is that this division provide a means to
resolve a landowner's claim that a land development regulation or comprehensive plan
pOlicy has had an unconstitutional effect on property in a non-judicial forum. This
division is not intended to provide relief related to regulations promulgated by agencies
other than the County or to provide relief for claims that are not cognizable in court at the
time of application under this division. Further, the procedures of this division are not
intended, nor do they create, a judicial cause of action.
See. 9.5-173. Exhaustion.
Relief under this division cannot be established until the landowner has received a final
decision on development approval applications from the County. including building
pennit allocation system applications, appeals. administrative relief pursuant to section
9.5-124.7, and other available relief, exceptions, or variances, unless the applicant asserts
that a land development regulation or comprehensive plan policy, on its face, meets the
standards for relief in section 9.5-178.
Set. 9.5-174. Application; exhaustion; sufficiency aDd contents of application.
(a) Generally. An application fOf a beneficial use determination may be made to the
planning department by filing an application and an application fee as established by the
Board.
(b) Contents of application. The application shall be submitted in a form established
by the County and shall include the following:
PAGE 2 01' 8
ORIGINAL
(1) Contact information. The name, address, and phone number of the
landowner and applicant or agent.
(2) Legal description. A legal description and the real estate or parcel
number for the property.
(3) Lef1:er of agency. If a person other than the landowner is requesting relief
pursuant to this division, a notarized letter of agency from the landowner
authorizing the person to represent them with respect to the application. Except
as specifically provided herein. the landowner will be bound by the
representations, obligations, and agreements made by the landowner's agent in the
course of the beneficial use determination process. The tenn "applicant" as used
in this division refers to the landowner or the landowner's agent, as applicable.
(4) Date ofaequisition, offers to pUrchHS~ attempts to sell. Documentation
of the date of acquisition, the price incurred to acquire the property, the date and
amount of any offers by any person, corporation,govemmental entity, or
association to acquire the property, and any attempt.s ~y the landowner to sell the
prop~. .
(5) Land development regulation or comprehensive plan policy, A
statement describing the land development regulation, comprehensive plan policy,
or other final action of the County, which the applicant believes necessitates relief
under this division, including the effective date of the l~d development
regulation or comprehensive plan policy and/or the date of the final action by the
County related to the property. The application shall identify the subject land
development regulations or comprehensive plan policies of the County by section
and number.
(6) Desfrlption of land_ A description of the property's physical and
environmemal features, total acreage, and use presently, at the time of acquisition,
and upon the effective date of the land development regulation or comprehensive
plan policy or other final action the applicant believes necessitates relief under
this division.
(7) Improvements to land. Evidence of any investments made to improve the
property, the date the improvements were made, and the cost of the
improvements.
(8) Des~ription of allowable uses. A description of the type and extent of
land uses allowed on the property, from the time the applicant acquired the
property until the date of application under this division, including allowable
density, permitted and conditional uses, open space ratios, and other factors
affecting the property's development potential.
(9) Requested relief. A statement regarding the form of relief requested by
the landowner~ pursuant to section 9.5-179.
(10) Maps. Maps shall be included in the application, which show the property
presently, at the time of acquisition., and upon the effective date of the land
development regulation, comprehensive plan policy, or other action of the County
the applicant believes necessitates relief under this division. Maps shall indicate
PAGe:3oF8
ORIGINAL
the land use designation, future land use designation, aerial photography, and
environrneqtal conditions and habitat on the property at the above times.
(11) Previous development applications and appeals. A description of all
efforts to seek approval to develop the property, including date of application;
name of the local, state, or federal permitting agency; nature of approval, denial,
or appeal sought; disposition; and the date of disposition.
(12) Agency approvals. Evidence of whether the applicant has received
necessary approvals from governmental agencies other than the County, which
are required in order to undertake development of the property, including, as
applicable, evidence that approvals from other agencies are not required.
(13) Signature of landowner and agent. The signature of landowner{s) and
agent( s), at\:esting to the accuracy of the statements and representations made in
the application.
(14) Adl'fitional materials. Any other appraisals, studies, or evidence
supporting the applicant's contention that reliefunderthis division is appropriate,
including appraisals related to any alleged diminution in fair market value of the
property.
(d) Standards applicable to landowner and landowner's representative.
(1) The landowner and the landowner's representative shall exercise due
diligence in the fLling of and legal bases asserted pursuant an application for relief
under tbis division. -
(2) The signature upon the application by the landowner and the landowner's
representative shall constitute a certification that the landowner and landowner. s
representative have undertaken due diligence in the filing of the application., that
to the best pf his or her knowledge the application is supported by good grounds
under applicable laws, and that the application has been filed in good faith,
consistent with the purpose and intent of this divisi on.
(3) The landowner and the landowner's representative shall have a continuing
obligation throughout the proceedings to correct any statement or representation
found to have been incorrect when made or which becomes incorrect by virtue of
changed circumstances.
(4) If a claim for relief pursuant to this division is based upon facts the
landowner or the landowner's representative knew or should have known were
not correct or upon assertions oflaw that were frivolous, the special master may
dismiss the application and may recommend any remedy or penalty to the Board
provided by law or ordinance.
(e) Determinafion of sufficiency. Within fifteen (15) calendar days of accepting the
application, the pl~nning director, or the planning director's designee, shall determine if
the application is complete and includes the materials and information listed in subsection
(b)(1)-(13) above. The special master may require the landowner or the County to
provide additional information in order to make a determination under this division and
may conduct a hepring on whether the application should be dismissed for failure to
PAGE 40F8
ORIGINAL
include information necessary to make a recommendation, based on the standards set
forth in this division.
(1) Det~rmined insufficient. If the planning director detenmnes the
application is not complete, a written notice shall be mailed to the applicant
specifying the application's deficiencies. No further action shall be taken on the
application until the deficiencies are remedied. lfthe applicant fails to correct the
deficiencies within thirty (30) calendar days of a notice of deficiencies, the
application shall be considered withdrawn, and the application fee shall be
refunded to the applicant, upon request.
(2) Det~rmined sufficient. When the application is determined sufficient, the
planning director shall notifY the applicant in writing and, within sixty (60)
calendar days, forward the application to a special master to set a hearing date.
The planning director may forward to the special master additional materials,
application~, or decisions related to the application, including recommended
forms of relief, consistent with this division. \
Set. 9.5-175. Attjon by tbe special master.
(a) Establishrqent of date for hearing and notice. The special master shall
schedule and hold a hearing on an individual beneficial use determination application
within ninety (90) calendar days of receipt of the compl.ete application from the planning
director.
(b) Hearing. At the hearing, the landowner or landowner's -representative shall
present the landowner's case and the planning director or the planning director's
representative shall represent the County's case. The special master may accept briefs,
evidence, reports, or proposed recommendations from tbe parties.
(c) Recommelldation of the special mastel". Within sixty (60) calendar days of the
close of the hearipg, the special master shall prepare and transmit in writing to the
planning director and the landowner, or their representatives, a recommendation
regarding the application., based on the evidence submitted and the standards set forth in
sections 9.5-178 aqd 9.5-179.
(1) If the special master's recommendation is that reliefis not appropriate, the
special master's recommendation shall specify the basis for the recommendation.
(2) If the special master' 5 recommendation is that relief is appropriate, the
special master's recommendation shall:
a. Recommend a form of relief, pursuant to section 9.5-179.
b. Indicate the basis for the recommendation, including, as
applicable:
1. identification of the County land development regulation,
cOIl1prehensive plan policy, or other action that resulted in the
recqrnmendation for relief; and
PAGe: :;; OF 8
ORIGINAL
2. the date the land development regulation, comprehensive
plaq. policy, or other final action of the County affected the property so as
to necessitate relief.
Sec. 9.5-176. Adlon by the planning director.
Based on the recommendations of the special master, the planning director shall prepare
the item for consideration by the Board of County Commissioners. The planning director
may not disturb or alter the recommendations of the special master. Within thirty (30)
calendar days of receipt of tbe recommendations of the special master, the planning
director shall forwlU"d the special master's recommendation to the Board to set a public
hearing on the matter. The planning director may include with the recommendation a
proposed process and schedule for implementing the special master's recommendation.
Sec.9.5-177. Action ofthe Board.
I
Following receipt of the matter from the planning director, the Board shall set the matter
for a public hearing. The County sball provide notice and the applicant shall be provided
an opportunity to be heard prior to the decision of the Board. ..The recommendation of the
special master is not binding on the Board. At the bearing, the Board, by resolution, shall
approve, modify, r~verse. or approve with conditions, the recommendations of the special
master, based on the standards of sections 9.5-178 and 9_5-179. The resolution shall:
(a) state the dale, if any, upon which any resolution granting reliefwill cease to be in
effect~
(b) state that neither the Board's resolution nor any process or - evidence associated
with this division is an admission of a taking of property;
(c) direct County staff to undertake any additional steps necessary to implement the
resolution; and
(d) address other matters necessary to implement the purpose and intent of this
division.
See. 9.5-178. Beneficial use standards.
(a) Standard. In furtherance of the purpose and intent of this division, and
consistent with Policy ]01.18.5 of the comprehensive plan, re1iefunder this division may
be granted where a court of competent jurisdiction likely would detenmne 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 lack of investment~backed
expectations, statutes of limitation, laches, or other preclusions to relief Whether such
liability. at the time of application under this division, is likely to be established by a
court should be determined based on applicable statutory and case law at the time an
application is considered under this division.
(b) Burden. The applicant shall have the burden of showing that relief under this
division is appropriate.
9.5-179. Granting of relief.
PAGE60F8
ORIGINAL
(a) General. If the Board detennines that relief is appropriate under this division.
relief may be granted, as provided in this section and consistent with the comprehensive
plan.
(b) Fonns of relief. In order to avoid an unconstitutional result and to provide a
landowner with an economically viable use of property pursuant to this division, the
special master may recommend and the Board may allow for additional use(s), density, or
relief beyond that allowed by a literal application of the land development regulations or
comprehensive plan on the particular property, which may include:
(1) Red~signation of the property on the land use map or future land use map~
(2) Permits for development despite the literal application of the land
development regulations and comprehensive plan, although permits issued
pursuant to this section shall be subject to applicable construction deadlines and
expiration dates under chapter 6 of the Monroe County Code;
(3) Transferable development rights (TDRs);
(4) Eligibility for dedication of the property. pursuant to section 9.5-
122.3(a)(5);
(5) Rep~al or amendment of the land development regulation or
comprehensive plan policy affecting the subject property;
(6) Any other economically beneficial use of the property or reHefthe Board
detennines appropriate and adequate under section - 9.5-178 and the
comprehensive plan; or
(7) Any combination of the above.
(c) Minimum increase. Relief granted pursuant to this division shall be the
minimum necessary to comply with section 9.5-178. The highest, common, or expected
use, is not intended as an appropriate remedy, unless expressly required by applicable
statute or case law.
Section 3. Severability. The provisions of this Ordinance are declared to be severable
and if any section, sentence, clause or phrase of this Ordinance shall for any reason be
held to be invalid or unconstitutional. such decision shall not affect the validity of the
remaining sections, sentences, clauses, and phrases of this Ordinance but they shall
remain in effect, it being the legislative intent that this Ordinance shall stand
notwithstanding the invalidity of any part.
Section 4. Repeal of Conflicting Provisions. The provisions of the Monroe County
Code and all Ordinances or parts of Ordinances in conflict with the provisions of this
Ordinance are hereby repealed.
Section 5. Inclusiqn in the Code. The provisions of this ordinance shall be included and
incorporated in the Code of Ordinances of Monroe County, Florida as an addition or
amendment thereto. and shall be appropriately numbered to conform to the uniform
number system oftbe Code.
PAGE: 7 OF'S
ORIGINAL
Section 6. Approval by tbe State Department of Community Affairs. The provisions
of tbis Ordinance constitute a l'land development regulation" as State law defines that
term. Accordingly, the Monroe COUDty Clerk is authorized to forward a copy of this
Ordinance to the State Department of Community Affairs for approval pursuant to
Sections 380.05(6) and (11), Florida Statutes and to the Secretary of State for the State of
Florida, as required.
Section 7. Effective Date. This Ordinance shall be effective immediately upon approval
by the State Department of Community Affairs pursuant to Chapter 380, Florida Statutes.
PASSED AND ADOPTED, by the Board of County Commissioners of Monroe County,
Florida at a regular meeting of said Board on the IBth day of July, 2007.
Mayor Mario DiGennaro
Mayor Pro Tern Dixie M. Spehar
Commissioner Charles "Sonny" McCoy
Commissioner George Neugent
Commissioner Sylvia Murphy
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BOARD OF COUNTY
COMMISSIONERS OF MONROE
COUNTY, FLORIDA
By:
~1f~
Mayor Mario DiGennaro
(SEAL)
ATTEST: Danny L Kolhage, CLERK
B~
MONROE COUNTY ATTORNEY
APPROVED AS TO FORM:
Deputy Clerk
LEY
ASSISTANT COUNT HORNEY
Date c;-~ (..a.., ~..J10 I
PAGE80F8
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CLERK OF THE CIRCUIT COURT
MONROE COUNTY
BRANCH or-FleE
MARATHON SUB COURTHOUSE
3117 OVERSEAS HICHWAY
MARATHON. FLORIDA 33050
TEL. (305) 289.6027
FAX (3(5) 289.1745
MONROE COUNTY COURTHOUSE
50(} WHITEHEAD STREE.T. SUITE 101
KEY WE51; FLORIDA 33040
TEL. (305) 292.3550
FAX (305) 295.3663
BRANCH OfFrCE
PLANTATION KEY
GOVERNMENT CENTER
88B20 OVERSEAS HIGHWAY
Pl.ANTATION KEY, FLORIDA 33070
TEL. (305) 852-7145
FAX (3(5) 852-7146
August 16, 2007
Ms. Liz Cloud, Program Administrator
Administrative Code & Weekly
R.A. Gray Building
500 S Bronough Street
Tallahassee FL 32399-0250
Via Certified Mail 7005 116000003841 2488
Dear Ms. Cloud,
Enclosed please find certified copies of the following Ordinances:
Ordinance No. 035.2007 repealing Sections 9.5-171 through 9.5-174 of the Monroe
County Code concerning Beneficial Use Determinations; providing for new Regulations
concerning Beneficial Use Determinations; providing a forum for relief; providing an application
process; providing for a hearing and ret:ornmendation by a Special Master; providing for
forwarding such recommendation to the Board of County Commissioners for a hearing;
providing for standards, burden of proof and forms of relief; providing for codification,
severability and repeal of inconsistent provisions; providing for forwarding of this Ordinance to
rhe Department of Community Affairs and the Secretary of8tate; providing for an effective dare.
Ordinance No. 036-2007 approving a request by Pine and Palms Trailer Park Association
for a Land Use District Map amendment from Urban Residential Mobile Home-Limited
(URM-L) to Urban Residential Mobile Home (ORM) for property legally described as Lots 1-16,
Maloney Subdivision, Pine & Palms Trailer Park, Stock Island, Section 35, Township 67, Range
25, Monroe County, Florida, having real estate numbers: 00126100.000101, 00126100.000102,
00]26100.000103. 00126100.000104, 00126100.000105, 00126100.000106, 00126100.000107,
00126100.000108, 00126100.000109, 00I26100.000110, 00126100.000111, 00126100.000112,
00126100.000113,00126100.000114,00126100.000115, and 00126100,000116.
Ordinance No. 037-2007 approving the request by Lee Robert Rohe, on behalf of Ruben
Investment Properties, to amend the Land Use District Map for the following properties from
Ordinance No. 035-2007 to 038~2007
Improved Subdivision (IS) to Sub Urban Commercial (SC). The properties are physically
located on First Street, Big Coppitt Key and are legally described as Block 18, Lot I,
lohnsonville Subdivision, PB 1-53, Big Coppitt Key, Monroe Co Wlty, Florida and part
Government Lot 3, Big Coppitt Key, Monroe County, Florida. The real estate numbers are
00153240.000000 and 00121660.000000, at approximate mile marker 10.
Ordinance No. 038-2007 providing for a moratoriwn on the acceptance of development
applications for the redevelopment of mobile home parks within unincorporated Monroe County;
providing for exemptions; providing for vested rights; providing for appeals; providing for
exhaustion of administrative remedies; providing for a commencement date of May 16, 2007 and
an expiration date of November 16, 2007, or when amendments to the mobile home park
redevelopment regulations become effective, whichever comes first; providing for transmittal to
the Department of Community Affairs; providing for severability; and providing for an effective
date.
,
These Ordinances were adopted by the Monroe County Board of County Commissioners
at a Regular Meeting held in formal session on July 18, 2007. 'Please file for record. Should you
have any questions please feel free to contacl me at (305) 295-3130.
Darmy L. Kolhage
Clerk of the Circuit Court
and ex offielo Clerk to the
Board of County Commissioners
by; Pamela G. Hancock, D.C.
cc: Via E-Mail to thefallowing:
Growth Management
County Attorney
BaCe
File
CHARLIE CRIST
Governor
~
~LORIDA DEPARTMENT of STAT~
STATE LIBRARY AND ARCHIVES OF FLORIDA
KURT S. BROWNING
Secretary of State
August 22, 2007
Honorable Danny L. Kolhage
Clerk of Circuit Court
Monroe County
500 Whitehead Street, Suite 101
Key West, Florida 33040
, .
Attention: Pamela G. Hancock, Deputy Clerk
Dear Mr. Kolhage:
Pursuant to the provisions of Section 125.66, Florida Statutes, this will acknowledge receipt of your
letters dated August 16, 2007 and certified copies of Monroe County Ordinance Nos. 028-2007, 029-
2007,031-2007,032-2007,035-2007,036-2007,037-2007 and 038-2007 which were filed in this office
on August 20, 2007.
Sincerely,
%~~
Liz Cloud
Program Administrator
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DCA Final Order No.: DCA07-0R-263
ST ATE OF FLORIDA
DEPARTMENT OF COMMUNITY AFFAIRS
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In re: MONROE COUNTY LAND
DEVELOPMENT REGULATIONS __._
--ADOPTED BY MONROE COUNTY
ORDINANCE NO. 035-2007
FINAL ORDER
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The Department of Community Affairs (the "Department") hereby issues its Final Order,
pursuant to gg 380.05(6). Fla. Stat.. and S 380.0552(9). Fla. Std!. .(2006). approving a land
, .
development regulation adopted by a local government within the Florida Keys Area of Critical
State Concern as set forth below.
FINDINGS OF FACT
1. The Florida Keys Area is a statutorily designated area of ~rftical state concem~
and Monroe County is a local government within the Florida Keys Area.
2. On August 29, 2007, the Department received for review Monroe County
Ordinance No. 035-2007 ("Ord. 035-2007"), adopted by Monroe County on July 18,2007.
3. This Ordinance does repeal the current Sections 9.5-174 through 9.5-174 of the
Monroe County Code. Ord. 035-2007 does add provisions 9.5-171 through 9.5- 179 to the
Monroe County Code. The purpose of this Ordinance is to provide additional guidance to
applicants and County staff for processing Beneficial Use Detennination applications and to
provide a non~judicial procedure by which a property owner may seek relieffrom the IiteraJ
application of applicable Plan and LDR provisions including but not limited to setbacks. buffer
yards and clustering when such application is alleged to have the effect of denying all
economically reasonable use of the property.
4. Ordinance 035-2007 is consistent with the 2010 Monroe County Comprehensive
Plan.
DCA Final Order No.: DCA07-0R-263
CONCLUSIONS OF LAW
6. The Department is required to approve or reject land development regulations that
_ ___.__....._._ are enacted, amended, or r~~cinded.-h~.any...local.ge.Wlrament iH-theFloridaKeys Area of Critical
State Concern. 9 380.05(6)~ Fla. Stat.~ and 9 380.0552(9), Fla. Stat. (2006).
7. Monroe County is a local government within the Florida Keys Area of Critical
State Concern. 9380.0552, Fla. Stat. (2006) and Rule 28-29.002 (superseding Chapter 27F-8).
Fla. Admin. Code.
8. "Land development regulations" include local zoning, subdivision, building, and
other regulations controlling the development ofland. ~ 380.03'1(8), Fla. Stat. (2006). The
regulations adopted by Ord. 035-2007 are land development regulations.
9. AU land development regulations enacted, amended, or rescinded within an area
of critical state concern. must be consistent with the Principles for Guiding Development (the
"Principles") as set forth in ~ 380.0552(7), Fla. Stat. See Rathkamp v. Department of
Community AfJairs. 21 F.A.L.R. 1902 (Dec. 4, 1998), aff'd, 740 So. 2d 1209 (Fla. 3d DCA
I 999). The Principles are construed as a whole and no specific provision is construed or applied
in isolation from the other provisions.
10. Ord. 035-2007 promotes and furthers the following Principles:
(a) To strengthen local government capabilities for managing land
use and development so that local government is able to
achieve these objectives without the continuation of the area of
critical state concern designation.
(d) To ensure the maximum well-being of the Florida Keys and its
citizens through sound economic development.
(I) To protect the pubJic health, safetYt and welfare ofthe citizens
ofthe Florida Keys and maintain the Florida Keys as a unique
Florida Resource.
11. Ord. 035-2007 is consistent with the Principles for Guiding Development as a
whole.
2
DCA Final Order No.: DCA07-0R.263
CHOSEN TO JUSTIFY ITS ACTION OR INACTION.
IF YOU DISPUTE ANY ISSUE OF MATERIAL FACT STATED IN THE AGENCY
ACTION, THEN YOU MAY FILE A PETITION REQUESTING A FORMAL
ADMINISTRATIVEJiEARING BEFQRE ANA DMfNTSTRATDtE-LA-W-JtJD.G.E.GF-mE ___.
------- "DiVISION OF ADMINISTRATNE HEARINGS, PURSUANT TO SECTIONS 120.569 AND
120.57(1), FLORIDA STATUTES, AND CHAPTER 28.106, PARTS I AND IT, FLORIDA
ADMINISTRATIVE CODE. AT A FORL'\1AL ADMINISTRATIVE HEARING. YOU MAY
BE REPRESENTED BY COUNSEL OR OTHER QUALIFIED REPRESENT A TIVE. AND
YOU WILL HAVE THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT ON
ALL THE ISSUES INVOLVED, TO CONDUCT CROSS-EXAMINATION AND SUBMIT
REBUTTAL EVIDENCE, TO SUBMIT PROPOSED FINDINGS OF FACT AND ORDERS,
AND TO FILE EXCEPTIONS TO ANY RECOMMENDED ORDER.
IF YOU DESIRE EITHER AN INFORMAL PROCEEDING OR A FORMAL
HEARING, YOU MUST FILE WITH THE AGENCY CLERK OF THE DEPARTMENT OF
COMMUNITY AFFAIRS A WRITTEN PLEADING ENTITLED. I'PETITION FOR
ADMINISTRATlVE PROCEEDINGS" WLTHIN 21 CALENDAR DA VS OF PUBLICATION
OF THIS NOTICE. A PETITION IS FILED WHEN IT IS RECEIVED BY THE AGENCY
CLERK. IN THE DEPARTMENT'S OFFICE OF GENERAL COUNSEL; 2555 SHUMARD
OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100.
THE PETITION MUST MEET THE FILING REQUIREMENTS IN RULE 28-
106.104(2), FLORIDA ADMINISTRATIVE CODE. IF AN INFORMAL PROCEEDING IS
REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH
RULE 28-106.301, FLORIDA ADMINISTRATIVE CODE. IF A FORMAL HEARING IS
REQUESTED, THEN THE PETITION SHALL BE SUBMITTED IN ACCORDANCE WITH
RULE 28-106.201(2). FLORIDA ADMINISTRATIVE CODE.
A PERSON WHO HAS FILED A PETITION MAY REQUEST MEDJA nON. A
REQUEST FOR MEDIA nON MUST INCLUDE THE INFORMATION REQUIRED BY
RULE 28-106.402, FLORIDA ADMINISTRATIVE CODE. CHOOSTNG MEDIATION DOES
NOT AFFECT THE RIGHT TO AN ADMINISTRATIVE HEARING.
YOU WAIVE THE RIGHT TO AN INFORMAL ADMINISTRATIVE
PROCEEDING OR A FORMAL HEARING IF YOU DO NOT FILE A PETITION WITH
THE AGENCY CLERK WITHIN 21 DAYS OF PUBLICATION OF THIS FINAL
ORDER.
4
DCA Final Order No.: DCA07-0R-263
CERTIFICATE OF FILING AND SERVICE
I HEREBY CERTIFY that the original ofthe foregoing Final Order has been filed with
the undersigrred, g~signated A~.&;:lL Clerk.-and..that.true ancls,orrect-copiesl:la;v.e..beea-furnish cd
. '-tOthe persons listed below by the method indicated thi~ ~ay of October, 2007.
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By U.S. Mail:
Honorable Charles McCoy
Mayor of Monroe COtmty
500 Whitehead Street. Suite 102
Key West, Florida 33040
, "
Danny L. Kolhage
Clerk to the Board of County Commissioners
500 Whitehead Street
Key West. Florida 33040
Aref loulani
Acting Director
Planning and Environmental Resources
2798 Overseas Highway. Suite 400
Marathon. Florida 33050
Bv Hand Delivery or Interagencv Mail:
Clark Turner, ACSC Administrator, DCA Tallahassee
Richard E. Shine. Assistant General Counsel. DCA Tallahassee
5