Item P1WORN
190kalk, W. IRIM
Meeting Date: March 23, 2016 Department: Planning & Environmental Resources
Bulb Item: 'des � No X Staff Contact Person/Phone #: Mayte Santamaria 289-2562.
Emily Schemper 289-2506
AGENDA ITEM WORDING: A public hearing to consider a request for a Beneficial Use
Determination, and the recommendations of the special magistrate, for property legally described as
Block 9, Lot 1, Section 3, Bay Haven Subdivision (PB2-41), ley Largo, approximate Mile Marker
94.5, having Real Estate Number 00517650.000000, as requested by property owners, Scott and Toni
Beauchamp.
ITEM BACKGROUND: Property owners Scott and Toni Beauchamp ("Applicants") have requested
a Beneficial Use Determination (BUD) for a vacant parcel of land within Bay Haven ,Subdivision,
Section 3, in They Largo. The Applicants are asserting that the adoption of the Monroe County Land
Use District Map, which designated the subject parcel as part of a Suburban Residential (S) land use
district, constitutes a taking of the landowners' property. The property contains 0.19 acres of upland.
(8,276 SF), which is not enough upland to meet the maximum density or maximum net density
requirements for a single dwelling unit within an SR land use district, per Monroe County Code
(MCC) § 130-157.
Pursuant to the procedural requirements of the BUD Ordinance (MCC §102-102 through §102-110),
the application was the subject of a hearing before a special magistrate on May 23, 2014 (see Exhibit
1: staff report prepared for the special magistrate). The special magistrate has issued a recommended
order (see Exhibit 2), and has "recommended that the Board of County Commissioners deny
Petitioners' application for relief under the BUD Ordinance."
Pursuant to MCC § 102-108, "the board shall set the matter for a public hearing .... 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."
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, relied` 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 ether preclusions to relief.
Whether such livability, at the time of application under this division, is likely to be established by va
court should be determined based on applicable statutory and case law at the time can application
is considered under this division.
(b) Burden.
The applicant shall have the burden of'showing that relief under this division is appropriate.
Sec. 102-110. - Granting of relief.
(a) General.
If the board determines that relief is appropriate under this division, relief may be granted, as
provided in this section and consistent with the comprehensive plan.
(b) Forams 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
hoard pray allow for additional uses, density, or relief beyond that allowed by a literal application
of the land development regulations or comprehensive platy on the particular property, which may
include:
(1) Redesignation of the property, on the land use map or future land rose 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 constructiondeadlines 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 102-1 D9 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.
((quasi-judicialProceeding)
Y / Y-... _
TH VAT"
01
IWIV
STAFFRECOMMENDATIONS: Denial of the request for relief, consistent with the special
magistrate's recommendation "that the Board of County Commissioners deny Petitioners' application
for relief under the BUD Ordinance."
INDIRECT
1 BUDGETED:
REVENUE PRODUCING: Yes _ No AMOUNT PER MONTH Year
APPROVEDY: County Arty IMBIPurchasing Risk Management _
DOCUMENTATION: Included X Not Required —
DISPOSITION: AGEN
1=MM IM 9•
MEMORANDUM
I-ImuwoECsuyTy-
To: Special Master (to be designated by MCC §102-105)
From: Townsley Schwab, Senior Director of Planning & Environmental Resources
Date: November 25, 2013; Amended December 13, 2013
Subject: Request.Ibr Beneficial Use Deterininat on_for properly legallyy described as Block
9, Lot 1, Section 3, Bay Haven Subdivision (PB2-41), Key, Larger, Monroe County,
Florida, and ,having Real Estate Number 005176501 000000.
The Monroe County Planning & Environmental Resources Department ("Department") has
received an. Application for a Determination of Beneficial Use, under Monroe County Code
(MCC) §102-102 -- §102-110 (see Exhibit A), for the property referenced above ("subject
parcel"), owned by Scott and Toni Beauchamp. The Bcauchamps and their authorized agent
("Applicants") are asserting that the adoption of the Monroe County Land Use District Map,
which designated the subject parcel as part of a Suburban Residential (SR) land use district,
"on its face" constitutes a taking of the landowner's property.
Subject parcel outlined in yellow (2012 Monroe County aerial)
Beauchamp — Beneficial Use Determination File #2013-011
Amended Staff Report 12/13/22013 Page 1 of 14
Location
Address: Corner of Meridian Ave and Lycaloma Ave, mile marker 94.5 (Gulf of Mexico
side of US 1)
Legal Description: Block 9, Lot 1, Bay haven Section 3 (PB2-41)
Real ;Estate (RE) Number: 00517650.000000
Applicant
Owner: Scott and Toni Beauchamp
Agent: Randy Wall
On September 15, 1986, the current land use district (zoning) naps, which included a
designation of Suburban Residential (SR) for the subject parcel., became effective. On
February 28, 1986, the Monroe County Board of County Commissioners (BOCC) adopted
Resolution 049`1986, which transmitted amendments to the land use district (zoning) map
(including the rezoning of the subject parcel from RU-1 to SR) to the Florida Department of
Community Affairs. At that time, Florida Statute required such amendments to be adopted by
Florida Administration Commission (F.A.C.) Rule as part of Florida's Area of Critical State
Concern program (Section 380.05, F.S., was amended in 1997 to approve amendments
pursuant to final orders instead of by rule), The zoning map amendments were adopted by
Rule 28-20,021, F.A.C., which became effective on September 15, 1986, after the expiration
of the required appeal period.
The Applicants assert that in May of 2012, Randy Wall met with Department staff regarding
the process for applying for a ROGO allocation for the subject parcel. Staff informed Mr,
Wall that the lot is within a SR land use district and, under the density requirements of
MCC §1.30-157 (see Exhibit B), the lot does not have enough land area for one dwelling unit.
Although staff members have some recollection of such a meeting, the first documented
meeting between staff and Mr. Wall took place on July 13, 2012, as described below.
On July 13, 2012, Mayte Santamaria, Assistant Director of Planning, sent an email to Mr.
Wall reiterating options discussed earlier that day regarding the Beauchamps' property.
Can October 9, 2012, the Beauchamps submitted an application to the Department for a Pre -
Application Conference with a Letter of Understanding (LOU). On November 28, 2012,
Scott Beauchamp sent an email to the Department requesting that the application fee for the
LOU be instead applied towards a Beneficial Use Determination (BUD) application. A pre -
application conference was not held. An LOU was not prepared. The application was closed
and the Planning Director approved the use of the application fee toward a subsequent
Planning & Environmental Resources application fee.
On January 14, 2013, the Department received a BUD application for property owned by the
Beauchamps. Following multiple phone conversations and email correspondence between the
Department and the Applicants, the Applicants submitted an updated BUD application on the
Beauchamp --- Beneficial Use Determination File #2013-011
Amended Staff Report 1.2/13/2013 Page 2 of 14
current application form. This updated application was received by the Department's
coordinator on August 1, 2013.
Fallowing receipt of the application, the Department sent a letter, dated. August 15, 2013,
informing the Applicants that it deemed the application to be incomplete, as it did not contain
all of the required materials and information listed in MCC §102-105(b)(1)-(l3). In response
to this letter, the Applicants submitted revisions to the application, received by the
Department on September 1.3, 2013,.including a staternent of habitat received on September
17, 2013.
On September 27, 2013, pursuant to MCC §102-105(d)(2), the Department sent a letter to the
Applicants as notification that the Department had determined the application to now be
sufficient, and include all required materials and information listed in MCC §102-105(b)(1)-
(13).
A. Size of Site: 8,276 SF (0.19 acres) per Monroe County GIS
B. Buildable Area of Site (gross upland area minus required open space): 4,138 SF (0.095
acres)
C. Land Use District (LUD): Suburban Residential (SR)
D. Future Land Use Map (FLUM) Designation: Residential Low (RL)
E. Tier Designation: Tier 3
F. Flood Zone: AE — EL 7
G. Existing Use: Vacant
H. Existing Vegetation/Habitat: High elevation hammock
1. Community Character of Immediate Vicinity: Single -Family Residential.
Future Land Use and Land Use District Purposes:
Policy 101.4.2 of the Monroe County Year 2010 Comprehensive Plan states:
The principal purpose of the Residential Low (RL) land use category is to provide
for low -density residential development in partially developed areas with
substantial native vegetation. Low intensity public and low intensity institutional
uses are also allowed. In addition, Monroe County shall adopt Land Development
Regulations which allow any other- nonresidential use that was listed as a.
permitted use in the Land Development Regulations that were in effect
immediately prior- to the institution of the 2010 Comprehensive Plan (pre-2010
LDR's), and that lawfully existed on such lands on. January 4, 1996 to develop,
redevelop, reestablish and/or substantially improve provided that the use is
limited in intensity, floor area, density and to the type of use that existed on
January 4, 1996 or limit to what the pre-2010 LDR's allowed, whichever is more
restricted.
Beauchamp — Beneficial Use Determination File #2013-011
Amended Staff Report 12/13/2013 page 3 of 14
As set forth in MCC §130-44, the purpose of the Suburban Residential (SR) district "is to
establish areas of low- to medium -density residential uses characterized principally by
single-family detached dwellings. This district is predominated by development; however,
natural and developed open space creates an environment defined by plants, spaces and over -
water views."
Permitted and Conditional likes:
The permitted and conditional uses within the SR district are described in MCC §130-94,
which is attached in full as Exhibit C. The Applicants} request is to build a single family
residence on the subject parcel. Although MCC §130-94 lists both detached and attached
dwelling units as permitted uses within the SR district, density requirements preclude the
development of a dwelling unit on the subject parcel due to its size. These density
requirements, as well as a review of other permitted uses as applied to the subject parcel, are
discussed in more detail in the paragraphs that follow.
Residential Density:
Per MCC §130-157 (Exhibit B), the allocated residential density in the SR district is 0.5
dwelling units (du) per acre of upland. The maximum net density in the SR district is 5.0
dwelling units per net buildable acre of the site. These density limitations are consistent with
those specified in Policy 101.4.22 (Exhibit D) of the Comprehensive Plan, which allows an
allocated density of 0.25-0.50 du/acre and a maximum net density of 5.0 du/buildable acre
within the RL future land use district. Maximum net density is available with the use of
transferable development rights (TDRs) and/or for affordable housing projects.
Although a survey of the subject parcel was provided with the BUD application, it did not
specify the exact land area of the parcel. For all calculations in this staff report, an area of
8,276 square feet, or 0.19 acres, has been used, as shown by the County"s G1S.
As defined in MCC § 1.01-1, "Nei buildable area means that portion of a parcel of land that is
developable and is not open space required by section 130-157 or required minimum
bufferyard under chapter 114, article V or required setbacks under section 130-186."
According to MCC §130-157, the required open space in the SR land use district is 50%. The
total upland area of the subject parcel is 8,276 SF, or 0.19 acres. When open space is
subtracted, the net buildable area of the subject parcel is 4,138 SF, or 0.095 acres..
Beauchamp — Beneficial Use Determination Pile #2013-011
Amended Staff Report 12/13/2013 Page 4 of 14
According to the density limitations outlined above, the residential development potential for
the subject parcel is as follows:.
RESIDENTIAL DENSITY
Upland
Maximum
Net
FLUMI UD
Allocated
Acres on
Allocatedow
Maximum
Buildable
Max Net
Density
site
Allowed
Net Density
Acres on
Allowed�
site
Residential
Low 1FLU11M
0.25-0.50
01 04 -tU9095
5.0 units/
0.095
(RL)
units/acre
0.19 acres
units
buildable
t1,475 units
Policy 1.01.4.22
acre
acre
acres
Suburban
Residential
0.5
5.0 units/
0.095
LU (SR)
units/acre
0.19 acres
.0�95 units
buildable
buildable
OA75 units
MCC §130-1.57
acre
acres
The Applicants are requesting to build one (1) detached residential unit on the subject parcel.
As calculated above, the allocated density for a parcel of that size within the RL, and SR.
districts would only allow 0.095 dwelling units. Even with the use of TDRs, the maximum
net density for a parcel that size within the RL and SR districts would only allow 0.0475
dwelling units. Therefore, density requirements do not support the development of one
dwelling unit on a parcel of this size within the RL, and/or SR districts.
Hotel/Motel, Institutional, and Campground Density
Per MCC §130-162,, the allocated density in the SR district for hotel/motel rooms and
campground spaces is 5 rooms or spaces/acre, and for institutional residential is 3
rooms/acre. The maximum net density in the SR district for hotel/motel rooms is 15
rooms/buildable acre, for campgrounds is 10 spaces/buildable acre, and for institutional
residential is h rooms/buildable acre. However, these density limitations are not consistent
with those specified in Policy 101.4.22 of the Comprehensive Plan, which has an allocated
and maximum net density of zero (0) rooms/acre within the RL future land use district. As
the Comprehensive flan is the controlling document, hotel/motel and institutional rooms,
and/or campground spaces, would not be permitted on the subject parcel.
Note.- Section 163.3161(0), F.S. - It is the intent of"this act that adopted comprehensive plans:
shall have the legal status set out in this act and that no public or private development shall
be permitted except in cogfbrniity with comprehensive plans, or elements or portions thereof,'
prepared and adopted in conformity with this act.
Beauchamp —Beneficial Use Determination File #2013-011
Amended staff Report 12/13/2013 Page 5 of 14
HOTEL/MOTEL, INSTITUTIONAL, CAMPGROUND RESIDENTIAL DENSITY
Net
Upland
Maximum
Maximums
FLUM/LUD
Allocated
Acres
Allocated
Net
Buildable
Max Net
Density
Acres au
Allowed
site
Allowed
Density
site
Residential Low FLUM
0.095
0
0.19
(RL)
0 roorns
N/A
buildable
N/A
Policy 101.4.22
rooms/acre
acres
acres
Institutional
3.0
019
6.0 roorns/
0.095
0-57
Residential
rooms/acre
acres
0a57 rc ornw
buildable
buildable
rooms
acre
acres
15.0
}
5.0
0.19
rooms/
0.095
1.4
$
7 cj
Hotel
rooms/acre
acres
0.95 rooms
buildable
buildable
�'� onl ;"
acre
acres
c
10.0
�
Recreational
0.095
L
Rental
5.0
0.19
t1.95 spaces
P`
s aces/
p
buildable
0.95
(Campground)
spaces/acre
acres
buildable
acres
spaces
acre
"Although MCC §130-162 would appear to permit a maximum of 1.4 hotel rooms on a site of this
size within the SR land use district, Comprehensive Plan Policy 101.4.22 has controlling authority
over the land development regulations, and has an allocated and max net density of 0 hotel
rooms/acre within the RL FLUM. Therefore, hotel rooms would not be permitted on the subject
property.
Nonresidential Intensity:
Per MCC § 130-164, institutional development, as well as public buildings and uses, may be
built to a maximum FAR of 0.25. As noted in MCC §130-164, the maximum amount of low -
and mediurn-intensity commercial retail and office floor area permitted within the SR district
is not calculated based on a maximum FAR, but is based on the maximurn floor area listed in
the permitted uses for the SR district. Per MCC 130-94, low- and medium -intensity
commercial retail and office of less than 2,500 SF are permitted with a minor conditional use
permit. However, Policy 101.4.22 of the Comprehensive Plan allows nonresidential
development of 0.20-0.25 FAR. within the RL future land use district. As the Comprehensive
Plan has controlling authority over the land development regulations, low- and medium -
intensity commercial retail and office floor area would therefore be limited to Policy
101.4.22's maximum of 0.25 FAR or MCC §130-94's maximum of 2,499 SF of floor area,
whichever is less.
Beauchamp — Beneficial Use Determination pile 92013-011
Amended Staff Report 12/13/2013 Page 6 of 14
NONRESIDENTIAL INTENSITY
F UMILUD
Nonresidential
Upland Area
Maximum Floor
Max Intensity
of site
Area Allowed
Residential Low PLUM (RL)
0.20-0.25 FAR
8,276 SF
Sl,
Policy 101.4.22
1655-2J)69
Suburban Institutional and Public
0.25 FAR
8,276 SF
2,069 SF
Residential Buildings/Uses
LUI1 (SR) Low- and Medium -
MCC §130-94 Intensity Retail
<2,500 SF*
N/A
2,499 SF;
and § 130-164 or Office
*Although MCC § 130-94 permits a maximum of 2,499 SF of floor area for low- and mediurn-
intensity commercial retail and office Boor area within the SR district, Comprehensive Flan Policy
101.4.22 has controlling authority over the land development regulations, and limits nonresidential
development to a maximum of 0.25 FAR within the RL FLUM, which would be 2,069 SF for the
subject parcel.
Educational Overlay Intensity
MCC §130-94 includes the Educational overlay district as a use permitted with a major
conditional use. As stated in policy 101.4.11 of the Comprehensive Plan, the principal
purpose of the Educational land use category is to provide for public educational facilities..
The County shall coordinate with the School Board to balance educational facility land
requirements with other land use objectives. In recognition of Monroe County's environment
and the linear distribution of its population, the County shall encourage schools to
accommodate building and facility requirements on existing sites. When new school sites are
required, school shall be encouraged to locate proximate to urban residential areas and other
public facilities.
MCC § 130-1 23 states:
Any use identified in the Monroe County Year 2010 Comprehensive flan as
Education (E) and further identified on the Monroe County Future Land Use Map
with a designation of "E" may be overlaid on any new or existing land use district.
The use within the overlay district shall be subject to all land development
regulations of the underlying district with the exception of those regulations
controlling density and intensity. The use within the overlay district shall be
developed with the following density and intensity regulations:
Beauchamp — Beneficial Use Determination File #2013-011
Amended Staff Report 12/13/2013 Page 7 of 14
EDUCATIONAL OVERLAY INTENSITY
FLU LUD
Educational
Upland Area
Maximum floor
Max Intensity
of site
area Alloi ed
Educational FLUM (E)
Policy 101.4.11
0.30 FAR
8,276 SF
2.482 SF
MCC § 130-123
Development of an educational facility under the Educational FLUM and the Educational
land use overlay district may be permitted up to 2,482 SF, and would require a FLU
amendment and a major conditional use.
Review of Permitted and Conditional Uses:
The permitted and conditional uses within the SR district are described in. MCC §130-94.
The following list is an analysis of the permitted and conditional uses, as applied to the
subject parcel, based on the requirements of MCC §130-94, and the density and intensity
requirements within MCC and the Comprehensive Plan, described above. The full text of
MCC § 130-94 is attached as Exhibit C.
PERMITTED ED AND CONDITIONAL USES WITHIN SR ZONING
(BASED ON MCC §130-94, §130-123, §130-157, §130-162, and §130-164; and Policy 1.01.4.22)
AS OF RIGHT
(1) Detached residential dwellings
ALLOWED*
NO
REASON
Density allows <1 unit.
(2) Community parrs
YES
(3) Beekeeping
YES
(4) Borne occupations —Special use permit required
NO
Density allows <1 unit.
(5) Accessory uses;
YES — IF PRINCIPAL USE ESTABLISHED
(6) Vacation rental use
NO
Density allows <1 unit.
(7) Collocations on existing antenna -supporting
structures
NO
Use does not currently exist.
(8) Satellite earth stations <2 meters as accessary
YES — IF PRINCIPAL USE ESTABLISHED
(9) Wastewater nutrient reduction cluster systems that
serve less than ten residences
YES -- IF ACCESSORY TO ADJACENT
RESIDENTIAL DEVELOPMENT
MINOR CONDITIONAL USE
(1) Attached residential dwelling units (<4 units per
building)
ALLOWED*
NO
REASON
Density allows <1 unit.
(2.) Public or private community tennis courts and
swimming pools
YES
Beauchamp — Beneficial Use Determination bile #201.3-011
Amended Staff Report 12/1.3/2013 Page 8 of 14
(3) Public buildings and uses
YES — UP TO 2,069 SF
(4) Commercial retail of low- and medium -intensity
NO
Parcel does not abut the right -
or office uses or any combination thereof of less
of -way of U.S. 1, or a
than 2,500 SF of floor area, provided that:
dedicated right-of-way to
a. The parcel of land on which the commercial
serve as a frontage road for
retail use is to be located abuts the right-of-way of
U.S. 1, and
U.S. 1. or a dedicated right-of-way to serve as a
Parcel is not within 200 feet of
frontage road for U.S. 1;
the centerline of U.S. 1.
b. The structure must be located within 200 feet of
the centerline of U.S. 1;
(5) Parks and community parks
YES
(6) Institutional uses
YES — UP TO 2,069 SF
(7) Churches, synagogues, and houses of warship_
YES — UP TO 2,069 SF
(8) Replacement of an existing. antenna -supporting
NO
Structure
(9) Stealth wireless communications facilities, as
YES — IF PRINCIPAL USE ESTABLISHED
accessory uses
(10) Satellite earth stations >=2 meters as
YES — IF PRINCIPAL USE ESTABLISHED
accessory
MAJOR CONDITIONAL USE
ALLOWED`
REASON
(1) Attached residential dwelling units (>4 units per
NO
Density allows <1 unit.
building..)
(2) Institutional residential uses
NO
Density allows <1 unit.
(3) Marinas
NO
No water access.
(4) Agricultural uses
YES
(5) Campgrounds provided that the parcel has an area
NO
Parcel has an area less than 5
of at least 5 acres
acres.
(6) Hotels of fewer than 12 rooms provided that the
NO
Parcel has an area less than 2
parcel has an area of at least 2 acres
acres.
(9) Clubhouse or meeting facilities for educational
YES — UP TO 2 069 SF
and public interest purposes
(8) Educational Overlay Uses
YES — UP TO 2,482 SF
REDEVELOPMENT OF ALREADY
ALLOWED'
REASON
LAWFULLY ESTABLISHED USES
(1) Commercial retail of low- and medium -intensity
NO
Use does not currently exist.
or office uses or any combination thereof of less
than 2,500 SF of floor area.
Beauchamp _ Beneficial Use Determination File #2013-011
Amended Staff Report 12/13/2013 Page 9 of 14
(2) Marinas NO Use dues not currently exist.
*Per►nitted and conditional uses are also subject to all other applicable comprehensive plan
policies and land development regulations.
It is anticipated that the Applicants will assert the following:
1. With the adoption of the Land Use District Map, not only did the County act in error
with the designation of Bay Haven. Subdivision (and the subject parcel) as an SR
district, but the County did not have the right to step in and remove the building rights
of individual lot owners by a zoning change in a subdivision that the County had
accepted and recorded.
County Response: Changes to the Land Use Map may be initiated by the County or
by private owners as long as the proper process is followed. The land use map
amendments were adopted by BOCC Resolution 09-1986 and mule 28-20.021,
F.A.C., which became effective on September 1.5, 1986. [see Rule 28-20.021, .023,
.024, and .025] The mere purchase of land does not create a right to rely on existing
zoning. Second, the Applicants did not appeal or otherwise timely challenge the
zoning change. Finally, defenses to a regulatory takings suit must be considered
pursuant to MCC§ 102-109. In this case, any claim against the zoning change is time
barred by the statute of limitations, which is 4 years after the effective date of the map
amendments. This would preclude a judicial finding of taking liability and militates
against relief recommendation.
2. The 1986 adoption of the LUD Map and designation of the property as SR constituted
a compensable taking.
County Response: A regulatory taking is defined by the courts as any regulatory
activity that denies all or substantially all econo►nically beneficial use of property.
The subject parcel still has potential to be used for the uses listed in this staff report,
including, but not limited to, a community park or swimming pool, public buildings
or uses, institutional uses., church or synagogue, agricultural uses, and educational
uses. The subject parcel could also be sold to a neighboring parcel for use as a side
yard. At the time the Beauchamps purchased the lot in 2006, it was under common
ownership with, and was being used as a yard for, adjacent Lot 11, which is
developed with a single family residence. Additionally, pursuant to MCC §130-160,
recently amended by Ordinance 025-2013 (Exhibit E), which became effective on
November 7, 2013, the subject property may be eligible for use as a sender site for
transferable development rights. Determination of such eligibility would require
additional information.
Beauchamp — Beneficial Use Determination File #2013-011.
Amended staff Report 12/13/2013 ]Page 10 of 14
3. The land development regulations do not allow the rezoning of an established platted
subdivision so as to require 9 contiguous platted lots in order to build a dwelling unit.
County Response: There are no provisions within the Monroe County Code,
Comprehensive Plan, or Florida Statute that prohibit requesting a rezoning of a
platted subdivision, provided the proper process is completed.
4. Prior to purchase; in 2005 the Beauchamps were taken by their realtor, Humberto
Jimenez, to the Department's Key Largo office and told by a Monroe County Planner
that "Lot 1, Block 9 of Bay Haven was a buildable lot and that the County would be
happy to receive their single family residence application."
CountyResponse: The Department has done a thorough review of County records
and has found no record of this meeting. Furthermore, prior to 2008, the Department
did not have an office location in Key Largo. The Upper Keys office was located on
Plantation Key in Islaorada.
5. It was reasonable for the Beauchamps to assume a single family home could be built
on the lot by virtue of it being part of a plat approved by the County BDCC.
County Response: Monroe County''s land development regulations must take into
account a set of factors related to hurricane evacuation and environmental sensitivity
unlike that in any other region of the nation. These additional variables snake the
Monroe County Code as a whole extremely unique, and many expectations that may
apply in other communities do not apply within Monroe County. Courts have
previously held that the purchase of vacant property in Monroe County with the
subjective assumption by the landowner that it can be used for residential
development is not enough to establish vested rights or inverse condemnation.
Mote, the following adapted Monroe County Comprehensive Plan provisions:
Objective 101.19 Monroe County recognizes that there presently exists a significant
excess of platted residential subdivision lots relative to the County'.s carrying
capacity leased upon hurricane evacuation, traffic circulation, water duality and
marine resources, and other level ofservice standards. The Countyfarrther recognizes
that lot owners who are unaware that they will be subject to the County's land
development regulations may have unrealistic expectations concerning their ability to
receive building permits. In order to avoid, to the extent possible, further unrealistic
development expectations, Monroe County shall not approve a preliminary or final
plat unless development of the plat would meet all of the requirements of Monroe
Coumty's land development regulations including, but not limited to, minimum area
Beauchamp — Beneficial Use Determination File #2013-011
Amended Staff Report 12/13/2013 Page 11 of 14
requirements for a single-family residence. Under no circumstances shall Monroe
County approve aplat which creates an unbuildable lot.
6. The Beaucharnps completed appropriate due diligence by checking with the County
as to the buildability of the lot.
County Response: The land development regulations which preclude the
development of a dwelling unit on the subject parcel were effective at the time the
Beauchamps purchased the parcel. Appropriate due diligence would have included
obtaining first-hand knowledge of relevant sections of the Monroe County Code —
particularly density requirements. The alleged informal representation by an unnarned
County planner does not constitute due diligence. Moreover, the County has no
record of having ever met with the Applicants. A letter of understanding would have
been one of the ways Applicants could have conducted due diligence.
7. The only possible permitted use on the property is beekeeping, which would be ill
advised in a residential neighborhood.
County Response: As described in this staff report, the subject parcel still has
potential to be used for a variety of uses, including, but not limited to, a community
park or swimming pool, public buildings or uses, institutional uses, church or
synagogue, agricultural uses, and educational uses. The subject parcel could also be
sold to a neighboring parcel for use as a side yard. Additionally, pursuant to MCC
§130-160, recently amended by Ordinance 025-2013 (Exhibit E), which became
effective on November 7, 2013, the subject property may be eligible for use as a
sender site for transferable development rights. Determination of such eligibility
would require additional information.
8. Bay Haven Section I subdivision is substantially built out. The majority of remaining
vacant lots border US], and were zoned BU-1 prior to 1986.
County Response: The subject parcel lies within Bay Haven Subdivision Section 3
which includes 99 vacant platted lots. Of these 99 vacant lots, 67 are privately owned.
Bay Haven Subdivision as a whole (Sections 1-4) currently includes 254 vacant lots,
of which 114 are privately owned. All privately owned parcels within Bay Haven
Subdivision are in a similar situation to the subject parcel, as they have a land use
district designation of either SR or Native Area (allocated density of 0.25 du/acre)
and a FLUM designation of either RL or Residential Conservation (allocated density
of 0-0.25 du/acre). A change to the zoning and FLUM of the parcels within this
subdivision or an allowance to build a dwelling unit at a density above the adopted
Beauchamp — Beneficial Use Determination File #2013-011
Amended Staff Report 12/13/2013 Page 12 of 14
maximuan density requirements could therefore create the opportunity for 1.14
additional residential units to be developed.
As required by the State of Florida, a Rate of Growth Ordinance (ROG4) was
implemented in order to provide for the safety of residents in the event of a hurricane
evacuation and to protect the significant natural resources of Monroe County. ROGO
is a competitive permit allocation system whereby those applications with the highest
scores are awarded building permits. The creation of 114 additional residential unit
requests may create other issues for the County, as the County is only allowed to
issue 197 building permits per year for new residential development (Rule 28-20.140,
F.A.C.) within unincorporated Monroe County in order to maintain hurricane
evacuation clearance times of 24 hours.
In March 2013 the Governor and Cabinet, sitting as the State Administration.
Commission, approved the recommendation to allocate 10 years' worth of growth
(197 x 10 = 1,970 permits) to Monroe County while maintaining an evacuation
clearance time of 24 hours, through the year 2023. Recent analysis by the County
highlights the challenges the County may face, as there are 8,168 privately owned
vacant parcels in unincorporated Monroe County. With just 197 permits per year, it
would take over 41 years' worth of annual allocations (at the current rate of 197) to
absorb these parcels. Additional requests for residential units only exacerbate the
challenge.
9. Most of the houses in Bay Haven subdivision were entered into the tax rolls in 1987
or later. The following two properties within the Bay Haven subdivision were issued
single family residence permits after the 1986 zoning change:
Example A. Parcel 400516190.000000, Building Permit #893-1416, issued on June 1,
1989.
Example B. parcel 400516380.000000, Building Permit 4C20308, issued on
September 1, 1986,
County Response: A review of County building permit records shows that building
permit applications for all developed lots within Bay haven Subdivision (Sections 1-
4) were applied for prior to the effective date of the amendment changing the zoning
of the subdivision from RU-1 to SR.
Concerning Example A, the permit in question was issued as a re -issuance for transfer
of ownership of earlier permits #C23361 and 9CI8916, which was applied for on
March 24, 1986; the effective date of the Land Use District Map that designated Bay
Haven as an SR district was September 15, 1986,
Concerning Example B, the application date of the permit in question was August 6,
1986, and the permit was issued on September 1, 1986; the effective date of the Land
Beauchamp — Beneficial Use Determination File 42013_011
Amended staff Report 12/13/2013 Page 13 of 14
Use District Map that designated Bay haven as an SR district was September 15,
1986.
10. The County owns and maintains the streets and rights of way within Bay Haven
subdivision, yet has declared it not to be a residential subdivision.
County Response. There are no regulations within the Monroe County Code,
Comprehensive Plan, or Florida Statute that require the County to allow specific
residential density within areas where the County maintains streets and rights of way.
The zoning and density regulations that apply to Bay Haven Subdivision determine
the number of dwelling units which may be built, but have no bearing on whether or
not an area is defined as a "residential subdivision."
0110 1113 KIIIIIU ILTJ I ININ NXI V U810i
The Applicants have requested one of the following forms of relief:
1. MCC §102-110(b)(1): Redesignation of the property on the land use map and future land
use map, or,
2. MCC § 102-11 0(b)(2): Permits for development despite the literal application of the land
development regulations and comprehensive plan, with the understanding that the permit will
still be subject to ROGO requirements.
The subject parcel has been reviewed fairly according to the land development regulations,
and these regulations were already in effect prior to the Beauchamps' purchase of the
property. The Department disagrees that there has been a regulatory taking of the subject
property; even if there has been, several affirmative defenses could be asserted against a.
taking claim precluding a judicial Ending of liability and this supports the denial of the
request relief pursuant to MCC§ 102-109.
►iif �;I: � 1 t� Y.K
A. Monroe County Code §102-102 — §102-110. Beneficial Use Determinations.
B. Monroe County Code §130-157. Maximum residential density and district open space.
C. Monroe County Code § 130-94. Suburban Residential District (SR) Permitted and
Conditional Uses.
D. Monroe County Year 2010 Comprehensive Plan Policy 101.4,22.
E. Monroe County BOCC Ordinance No. 025-2013.
1. Current Land Use District Map for subject parcel.
2. Current Future Land Use Map for subject parcel.
3. 2012 Aerial photography for subject parcel.
4. Bay Haven Subdivision (Sections 1-4) Current Land Use District Map.
Beauchamp — Beneficial Use Determination File #2413-011
Amended staff Report 12/13/2013 Page 14 of 14
DIVISION 2LBENEFICIAL USE DETERMINATIONS
Sec. 102~102. Generally. ~
0[ after afinal decision or action by the county, including available variances, a landowner in
ufthe opinion that the adoption orapplication cf acounty land development regulation or
comprehensive plan policy has caused a taking of the landowner's property, the procedures of this
division shall baused prior toseeking relief from the courts.
p3rd Na 035-2007, §2(B,5-Y71))
Sec. 102-103. Purpose and intent.
(a) The purpose of this division is to ensure that the adoption orapplication ofacounty land
development regulation or comprehensive plan policy does not result in an unconstitutional
taking ofprivate property.
(b) The intent ofthe board ofcounty commissioners iothat this division provide ameans ho
resolve a |andovvmer's claim that a land development regulation or comprehensive plan policy
has had an unconstitutional effect on property in a nonjudicia| 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 ofthis division are not imtemded, nor do they
create, ajudicial cause ofaction.
Relief under this division cannot be established until the landowner has received efinal
decision on development approval applications from the county, including building permit allocation
system app|ications, appea|s, administrative relief pursuant . 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 102-109.
(Ord, No. 035-2007, §2(9,5-/73))
Sec. 102~105.Application; aRppQcabifitV; 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 aform established by the
county and shall include the foUowing�
(1) Contact information. The name, address, and phone number ofthe landowner and
applicant mragent�
(2) Legal description. /\ legal description and the real estate orparcel number for the
(3) Letter ofagency. Ifaperson other than the landowner iarequesting relief pursuant to
this division, a notarized letter of agency from the landowner authorizing the person to
represent them with respect bothe application. Except asspecifically 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.
DIVISION 2LBENEFICIAL USE OETERM|NATIONS 11M4/203
The term "applicant" as used in this division refers to the landowner or the landowner's
agent, eaapplicable;
(4) Date of acquisition, offers to purchase, attempts to sell. Documentation of the date
ofacquisition, the price incurred toacquire the property, the date and amount ofany
offers byany person, corporation, governmental entity, or association hoacquire the
property, and any attempts bvthe landowner bosell the property;
(5) Land development regulation mrcomprehensive plan policy. Aabatennent
describing the land development regulation, comprehensive plan policy, omother final
action of the county, which the applicant believes necessitates relief under this divieiom,
including the effective date of the land development regulation or comprehensive plan
policy and/or the date ofthe final action bythe county related &othe propeMy. The
application shall identify the subject land development regulations or comprehensive
plan policies nfthe county bysection and number;
(6) Description ofland. Adescription ofthe 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) |ntprmvernontm to land. Evidence of any investments made to improve the property,
the date the improvements were nnade, and the cost of the improvements-,
(8) Description nfallowable uses. Adescription ofthe type and extent ofland uses
allowed on the property, from the time the applicant acquired the property until the date
of application under this division' including allowable dene|ty, permitted and conditional
uses, open space ratios, and other factors affecting the property's development
potential;
(g) Requested relief. Astatement regarding the form ofrelief requested bythe landowner,
pursuant tosection 1O2-11O
(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 onthe property eithe above times;
(11) Previous development applications and appeals. Adescription ofall 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 ofdisposition;
(12) Agency approvals. Evidence ofwhether 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 oflandowner and agent. The signature oflandowner and agent, attesting
hothe accuracy ofthe statements and representations made inthe app|ication�and
(14) Additional materials. Any other appraisals, otudiea, or evidence supporting the
applicant's contention that relief under this division is appruprisd*, including appraisals
related toany alleged diminution infair market value ofthe property.
(c) Standards applicable tolandowner and bandovvmer'srepresentative.
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DIVISION 2BENEFICIAL USE DETERMINATIONS 11/14/2018
(1) The landowner and the |andovvner'urepresentative shall exercise due diligence imthe
filing of and legal bases asserted pursuant to an application for relief under this
(2) The signatureuponthe application bythe landowner and the landovvner'o
representative shall constitute a certification that the landowner and |amdovvneha
representative have undertaken due diligence in the filing of the application, that to the
best ofhis knowledge the application iesupported bygood grounds under applicable
laws, and that the application has been filed in good faith, consistent with the purpose
and intent ofthis 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 orwhich becomes incorrect byvirtue ofchanged
circumstances.
(4) If claim for relief pursuant to this division is based upon facts the landowner orthe
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 orpenalty bothe board provided bylaw
or ordinance.
(d) Determination ofsufficiency. Within 15calendar days ofaccepting the application, the
planning director, orthe planning director's designee, shall determine ifthe application ks
complete and includes the materials and information listed insubsections (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. Ifthe planning director determines the application banot
cornKdete, avvritten notice shall be mailed to the applicant specifying the application's
deficiencies. Nofurther action aho|| be taken on the application until the deficiencies
are remedied. If the applicant foil's tocorrect the deficiencies within 3Ocalendar 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 iadetermined sufficient, the planning
director shall notify the applicant in writing and, within 60 calendar days, forward the
application to a special magistrate toset a hearing dabs. The planning director may
forward to the special magistrate additional mateha|e, app0oaUong, or decisions related
to the application, including recommended forms of relief, consistent with this division.
(Ord No 035-2007 §2(D5-174))
Sec. 102-106, Actioii by the special magistrater"
(a) Establishment ofdate for hearing and notice. The special magistrate shall schedule and
hold a hearing on an individual beneficial use determination application within 90 calendar
days mfreceipt nfthe complete application from the planning director.
(b) Hearing. At the hearing, the landowner or landowner's representative shall present the
]amdovvner'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.
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O|NSI{]N 2.BENEF[1ALUSE OETERMXNAT|ONG
11/1z/2O13
(c) Recommendation ofthe special magistrate. Within OOcalendar days ofthe close ofthe
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'
11O
(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 aform ofrelief, pursuant hosection 1O2-11O�and
b, Indicate the basis for the nsoommendedon, imc|mdin0, as applicable:
Identification Vfthe county land development regulation, comprehensive
plan pm|icy, 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 ufthe county affected the property soastonecessitate
(Ord, Na035-2007. §2(0�5-y75))
Sec. 102-107. Action by the planning director.
Based onthe recommendations ofthe 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 special magistrate, the planning director shall: forward the special
magistrate's recommendation to the board to set 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.-200752(95-170))
Sec. 102-108. Action of the board._,
Following receipt nfthe 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
beheard prior tmthe decision mfthe board. The recommendation ofthe special magistrate is not
binding on the board. At the hearing, the board, by neeo|ution, shall appnove, modifv, reveraa, or
approve with conditions, the recommendations of the special magistrate, based on the standards of
sections 1O2-1O9and 1O2-110. The resolution shall:
(1) State the date, if any, upon which any resolution granting relief will cease tobehl
(2) State that neither the board's resolution nor any process or evidence associated with
this division is an admission ofataking ofpnopedy�
(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.
DIVISION 2BENEFICIAL USE [)ETERM|NATIONS 11/14/2013
Sec. 102-109. Beneficial use standards.
(a) Standard. In furtherance of the purpose and intent of this division, and consistent with Policy
101 18.5cfthe comprehensive plan, relief under this division may begranted where mcourt of
competent jurisdiction likely would determine that a final action bythe county has caused a
taking of property and a judicial finding ofliability would not be precluded by g cognizable
defense, including lack of investment -backed expectations, statutes of limitation, laches, or
other prec|ueions to relief. Whether such liability, at the time of application under this diwimiun,
is likely to be established by a court should be determined based on applicable statutory and
case law at the time aRapplication is considered under this division.
(b) Burden. The applicant ahe|| have the burden of showing that relief under this division is
appropriate.
(8ofNo 035-2007 0 2(B 5-178))
See. 102-110. Granting of relief.,-
(a) General. If the board determines that relief is appropriate under this division, relief may be
granted, as provided in this section and consistent with the comprehensive plan.
(b) Forms ofrelief. 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, orrelief beyond that
allowed by a literal application of the land development regulations or comprehensive plan on
the particular property, which may include:
(1) Redeeignadomofthe property onthe land use map urfuture land use map;
(2) Permits for development despite the literal application ofthe 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
(3) Transferable development rights (TDRs)�
(4) Eligibility for dedication ofthe property pursuant tosection 138-28(5)�
(5) Repeal oramendment ofthe land development regulation orcomprehensive plan
policy affecting the oubjentproperty�
(6) Any other economically beneficial use of the property or relief the board determines
appropriate and adequate under section 1O2-1OBand the comprehensive p|an�or
(7) Any combination ofsubsections (b)(1)--(@)ofthis section.
(c) Minimum increase. Relief granted pursuant tothis division shall bethe 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.
K]nd No035 2DO7 § 2�9 5-/780
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MOMMOBW
Sec. 130-157. Maximum residential density and district open space.
The maximum residential density and district open space shall beinaccordance with the
following table:
Land Use District
Allocated Density
Maximum Net Density
Open Space Ratio*
Mobile home parks per
section 101-1
5.0
7.0
0.2
*See additional open space ratios in chapter 118; in accordance with section 101 -2(l), the most restrictive of
these ratios applies.
"The allocated and maximum net densities Listed in this table do not apply to CFSD-20 (Little Torch). See
Isection 130-79(14)c. for residential densities.
Note —Properties consisting of hammocks, pine|amds, and disturbed wetlands that are within RV.
MU, UC.SC, CFV, CFA.CFGDdistricts have omaximum net density ofO.
M0NROECOUNTYCOD6 EXHIBITC
ARTICLE III, PERMITTED AND CONDITIONAL USES 11/14C2013
Sec. 130-94. Suburban residential district (SR).
(a) The following uses are permitted eacfright inthe suburban residential district:
(1) Detached residential dwellings;
(2) Commmmityperho�
(3) Beekeeping-,
(4) Home occupations —Special use permit required�
(5) Accessory uses;
(6) Vacation rental use if aspecial vacation rental permit isobtained under the
regulations established i
(7) Collocations cmexisting antenna -supporting structures, pursuant 3);
(o) Satellite earth stations |eoa than two meters in diameter, as accessory ueeo, pursuant
to 8);and
(9) Wastewater nutrient reduction cluster systems that serve less than ten residences.
(h) The following uses are permitted as minor conditional uses in the suburban residential
district, subject tothe standards and procedures set forth i chapter . article |||�
(1) Attached residential dwelling units, provided that:
a. The total number ofunits does not exceed four per bui|dimJ�
b� The structures are designed and located oothat they are visually compatible
with established residential development within 250 feet of the parcel proposed
for development; and
C. The parcel proposed for development ioseparated from any established
detached residential use byaclass Cbufferyard�
(2) Public or private community tennis courts and swimming poo|o, provided that-,
a. The parcel ofland proposed for development does not exceed five acres;
b. The parcel proposed for development isseparated from any established
residential use byaclass Cbufferyard; and
C. All outside lighting is designed and located so that light does not shine directly
omany established residential use;
(3) Public buildings and uses, provided that:
aThe parcel proposed for development ieseparated from any established
residential use bya class Cbufferygrd�and
b. Access hoU.8. 1 isbyway of:
1. Anexisting curb cut;
2, Asignalized imtenseoUon�or
3� Acurb cut that ioseparated from any other curb cut onthe same side mf
U.S. 1 bymtleast 4OOfeet;
(4) Commercial retail oflow- and medium -intensity oroffice uses mrany combination
thereof ofless than 2.580square feet offloor area, provided that:
a. The parcel of land onwhich the commercial retail use iobobe located abuts the
right-of+mayofUG.1.mradedicated hght-of-vveyhuserve asa frontage road
for U.S. 1;
b, The structure must belocated within 2OOfeet ofthe centerline nfU.G. 1�
.
cThe commercial retail use does not involve the sale of petroleum products;
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ARTICLE III. PERMITTED AND CONDITIONAL USES
11/14/2O13
d. The commercial retail use does not involve the outside storageordimp|ayof
goods ormerchandise with the exception that outside sales and display for
nurseries may be permitted with the stipulation that required open space and
required bufferyardomay not beused for display and ealen�
e, There is no direct access to U.S. 1 from the parcel of land on which the
commercial retail use ietnbe|000ted
.
z The structure in which the mornmemoie| retail use is to be located is separated
from the U.S. 1 right-of-way by aclass C bmfferyard;
Q The structure in which the commercial retail use is to be located is separated
from any existing residential structure by a o|aae C bmfferyard| and
h. No signGgeother than one identification sign ofmomore than four square feet
shall be placed in any yard or on the wall of the structure in which the
commercial retail use is to be located except for the yard or wall that abuts the
(5) Parks and community parko
(o) Institutional uoee, provided that:
a. The parcel proposed for development imseparated from any established
residential uses byeclass Cbufferyan±; and
b, Access toU.S1 imbyway of:
1. Amexisting curb cut;
2. A signalized intersection; or
3. '4curb cut that hxseparated from any other curb cut onthe same side of
(7) Churchem, synagogues, and houses of worship, provided that
o. The parcel proposed for development isseparated from any established
residential uses bwaclass C bufferyard; and
o. Access hoUG. 1 iebyway mf�
1 Anexisting curb cut;
2. AmiQmo[ized intersection; or
3. Acurb cut that isseparated from any other curb cut onthe same side of
U�8. 1 byatleast 40Ofeet;
(8) Replacement ofanexisting antenna -supporting structure pursuant to section 146-5
(2)-
(B) Stealth wina|eme communications facilities, as accessory uses, pursuant to section 146
-5(5)� and
(10) Satellite earth stations greater than orequal totwo meters in diameter, as accessory
uses, pursuant (8).
(o) The following uses are permitted as major conditional uses in the suburban residential
district, subject to the standards and procedures set forth in...chapter _1_1 , article I H:
(1) Attached residential dwelling units, provided that:
a. The structures are designed and located mothat they are visually compatible
with established residential development within 250 feet of the parcel proposed
for development; and
b. The parcel proposed for development ioseparated from any established
residential use byaclass Cbufferyord;
(2) Institutional residential uses, provided that.-
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ARTICLE 111. PERMITTED AND CONDITIONAL USES
11/14/2013
sc The use is compatible with land uses established in the immediate vicinity of
the parcel proposed for development;
b. The parcel proposed for development ieseparated from any established
residential use byaclass Cbufferyard; and
o� Access toU.S. I isbyway of:
1� Anexisting curb cut
2. A signalized intersection; or
3` Acurb cut that iaseparated from any other curb cut onthe same side of
U.S. 1 by at least 480 feet;
(3) PNarinma, provided that:
a. The parcel proposed for development has access to water edleast four feet
below mean sea level at mean low tide;
b. The use does not involve the sale ufgoods and services other than private
cdubs, sport fishing chertero, boat dockage and shonsQe�
C. All boat storage is limited to surface storage on trailers or skids and no boats or
other equipment io stored on any elevated nack, frame or structure;
d Vessels docked orstored shall not beused for live -aboard purposes;
e. All outside storage areas are screened from adjacent uses bya solid fence,
wall orhedge atleast six feet imheight; and
f. Each momvxatanaideperimeter setback ofthe parcel proposed for development
must have o|aaa C bufferyard within a side yard setback of ten feet;
(4) Agricultural uses, provided that�
e. The use is compatible with land uses established inthe immediate vicinity of
the parcel proposed for development;
o The parcel proposed for development ioseparated from any established
residential use byatleast a class Cbufferyard�and
C. All outside storage areas are screened from adjacent uses bysolid fence, wall
nrhedge atleast six feet in height;
(5) Campgrounds, provided that:
a. The parcel proposed for development has anarea ofsdleast five acres;
b� The operator ofthe campground is the holder ofavalid county business
license;
C. |fthe use involves the sale ofgoods and services, other than the rental of
camping sites orrecreational vehicle parking spaces, such use does not
exceed 1.DQOsquare feet and iedesigned toserve the needs ofthe
campground; and
d. The parcel proposed for development is separated from all adjacent parcels of
land byatleast gclass Cbuffgryard;
(8) Hotels offewer than 12rooms, provided that:
a. The parcel proposed for development has anarea ofatleast two acnag�
b. All signage is limited to that permitted for a residential use;
C. The parcel proposed for development iaseparated from any established
residential use bypdleast aclass Cbmfenyard; and
d. The use iecompatible with land uses established inthe immediate vicinity o{
the parcel proposed for development;
hMm://1ibrem/.munncdeconYHTN\L/14288/wad0/PT||LADE CH130LAUSO|_AFTT|||FEC[XJ8ih— Faqe5of5
11Mz/2Q13
Clubhouse or meeting facilities for educational and public interest puq000ee, provided
that
a The use does not exceed 5.DOOsquare feet offloor area; and
o The parcel proposed for development is separated from all adjacent residential
uses byaclass C bufferyerd;
(B) Land use overlay E.subject kothe provisions ofarticle |Vofthis chapter.
(d) The following lawfully established nonresidential uses in the suburban residential land use
district, which were rendered nonconforming bythe 20,1OComprehensive Plan, but listed as
permitted uses in the land development regulations that were in effect immediately prior to
the institution of the 2010 Comprehensive Plan (pre-201 0 LDRs) and lawfully existed on
such lands on January 4. 1998. which are damaged or destroyed may be permitted to be
redeveloped, make substantial impnovements, or be reestablished as an amendment to a
major conditional use, subject tothe standards and procedures set forth i .
artideU|
(1) Connrnencie| nstsi| of low- and medium -intensity or office uses or any combination
thereof ofless than 2'5QOsquare feet of floor area, provided that:
a, The parcel of land on which the commercial retail use is to be located abuts the
right-of-wayofU.B,1.mra dedicated right-of-vvaytoserve as frontage road
b. The commercial retail use does not involve the sale ofpetroleum produ�s-,
C, The commercial retail use does not involve the outside storage urdisplay of
goods ormerchandise with the exception that outside sales and display for
nurseries may be permitted with the stipulation that required open space and
required bufferyardemay not beused for display and sales;
d The structure in which the commercial retail use is to be located is separated
from the UG 1 hght-of+maybyaclass Cbufferyand;
eThe structure in which the commercial retail use ioto be located is separated
from any existing residential structure by class bufferygrd;
t No signage other than one identification sign of no more than four square feet
shall be placed in any yard or on the vvaU ofthe structure in which the
commercial retail use is to be located except for the yard or wall that abuts the
right-of-vvayfor U.S. 1� and
9. The use is limited in intensity, floor area, density and to the type of use that
existed onJanuary 4.1996.mrlimited tothe permitted uses and/or the
provisions for minor or major conditional uses allowed in the pre-199,6 LDRs for
this district, whichever is more restrictive;
(2) Marinas, provided that:
o. The parcel has access to water at least four feet below mean sea level at mean
low tide;
b. The use does not involve the sale of goods and services other than private
clubs, sport fishing charters, boat dockage and eharage�
o. All boat storage is limited to surface storage on trailers or skids and no boat or
other equipment is stored on any elevated rack, frame orstructure;
d. Vessels docked orstored shall not beused for live -aboard purpmoes-,
e. All outside storage areas are screened from adjacent uses byasolid fence,
xva[K or hedge at least six feet in height;
f.
hfto�//1ibrorwmumuodaoon/HTML/142g8/l6vel3/PT||LADE (CH13OLAUSD|ART|||fqEC{]US,h— Fa.qe4of5
I so 0 OWN I Wale] kill] I 1 [0110 ME
11/14/2013
The parcel is separated from any established residential use by a class C
bufferyard; and
The use is limited in intensity, floor area, density and to the type of use that
existed on January 4, 1996, or limited to the permitted uses and/or the
provisions for minor or major conditional uses allowed in the pre-1996 LDR's
for this district, whichever is more restrictive.
(Code 1979 § 9,5-236, Crd No 33-1986 § 9-206 Ord, No 40--1987, § 56, Ord, No. 19- 1989, § I(PD66E). (PD72)
—(FID 751): Ord No 21-1989, § 7 (PD59N,) Ord No, 4- 199 7, § 9 Ord. No. 28-1999, § 2 Otd. No 53-2000, § 61 Ord
No 27-2001, § 2, Oid No 33-2001, § 3. Ord, No, 018-2002, § 6 Ofd, No, 007-2003, § 5. Ord No 034-2005. § 3,
Ord No 037-2006 § 6)
hftp://Iibrary.municodeconVHTML/14298/levei3/FTI I LADE CH130LAUSDI ARTIIIPECOUS.h... Pa.qe 5 of 5
Policy 101.4.22
Monroe County hereby adapts the following density and intensity standards for the fixture land use categories, which
are shown on the Future Land Use Map and described in Policies 101.4.1 - 101.4.17: [9.1-5.006(3)(c)71.
Future Land Use Densities and Intensities
Future Land Use Category
Allocated Density tbs
Maximum Net Density (,tcai 0 ) Maximum Intensity
And Corresponding Zoning
(per acre)
(per buildable acre) (floor area ratio)
Agriculture (A) "I
0 du
NIA 0.20-0.25
(no directly corresponding zoning)
0 rooms/spaces
N/A
Airport (AD)
0 du
N/A 0.10
(AD zoning)
0 rooms/spaces
N/A
Commercial (COMM)
0 du
N/A 0.15450
(C I and C2 zoning)
0 rooms/spaces
N/A
Conservation (C)
0 du
N/A 0.05
(CD zoning)
0 rooms/spaces
N/A
Education (.F) ° a
0 du
N/A 0.30
(no directly corresponding zoning)
0 rooms/spaces
N/A
Industrial (1)
1 du
2 du 0.25-0.60
(I and MI zoning)
0 roonis/s aces
NIA
Institutional (INS)r r
0 du
N/A 0.25-0.40
(no directly cones onding zoning)
3-15 rooms/spaces
6-24 rooms/spaces
Mainland Native (MN)
0.01 du
N/A 0.10
(MN zoning)
0 rooms/spaces
N/A
Military (M)
6 du
12 du 030-0.50 -
(MF zoning)
10 rooms/s aces
20 rooms/spaces
Mixed Use/Commercial (MCP
0.10-0.45
(SC, UC, DR, RV, MU and
1-6 du
2 -18 du (SC„ UC. DR, RV, and. MU
MI zoning)
5-15 roomsispaces
10-25 rooms/spaces zoning)
1 du (M zoning)
2 du (MI zoning)
0.30-0.60 (MI zoning)
Mixed Use/Commercial Fishing (MCF)L' )
Approx. 3-8 du
12 du 0.25-0.40
(CFA, CFVr`r, CFSD zoning)
0 rooms/spaces
0 rooms/spaces
Public Facilities (PF)c >
0 du
NIA 0.10-0.30
(no directly corresponding zoning)
0 rooms/spaces
N/A
Public Buildings/Grounds (PB) °
0 du
N/A 0.10-0.30
(no directly corres ondin zoning)
0 rooms/spaces
N/A
Recreation (R)
0.25 du
N/A 0.20
(PR zoning)
2 rooms/spaces
N/A
Residential Conservation (RC)
0-0.25 du
N/A 0-0.10
(OS and NA zoning)
0 moms/spaces -
N/A.
Residential Low (RL)
0.25-0.50 du
5 du 0,20-0.25
(SS`dr, SR, and SR-L zoning)
0 roorns/s aces
N/A
Residential Medium (RM)
approx, 0,5-8 du
N/A 0
(IS zoning)
(I du/lot)
N/A
0 rooms/spaces
Residential High (RH)
approx. 3-16 du
12 du 0
(IS-DYer, URM(e), and UR(r) zoning)
(1-2 du/lot)
20 rooms/spaces
10 rooms/spaces
Notes: -
(a) "N/A" means that maxirnurn net density bonuses shall not be available.
(b) The allocated densities for submerged lands, salt ponds, fi"esh ater ponds, and mangroves shall be 0 and the maximum net densities bonuses
shall not be available.
(c) The allocated density for CFV zoning shall be 1 dwelling unit per lot and the maximum net density bonuses shall not be available.
(d) Maxirnurn net density bonuses shall not be available to the SS district..
(e) The allocated density for IS-D and UR,M zoning shall be 2 and I dwelling units per lost, respectively and the maximum net density bonuses ._
shall not be available.
(f) The rnaxirnurn net density for the UR district shall be 25 for units where all units are designated as affordable housing.
(g) For properties consisting of hammocks, pinelands or disturbed wetlands within the Minced Use/ Corranercial and Minced Use/ Commercial
Fishing land use categories, the floor area ratio shall be 0.10 and the maximum net residential density bonuses not apply.
(h) Uses under the categories ofAgriculture, Education, Institutional, Public Facilities, and Public Buildings and Uses, which have no directly
corresponding zoning, may be incorporated into new or existing zoning districts as appropriate.
(i) The Maximum Net Density is the maximum density allowable with the use of TDRs.
(j) A mixture of uses shall be maintained for parcels designated as MI zoning district that are within the MC future land use category. Working
waterfront and water dependent uses, such as marina, fish house/market, boat repair, boat building, boat storage, or other similar uses, shall
comprise a mirrimum of35% of the upland area of the property, pursuant to Policy 101.4.5.
(Ordinances 032-2012 and 010-2013)
MONROE COUNTY,FLORIDA
MONROE COUNTYBOARD OF i COMMISSIONERS
ORDINANCE NO.02013
r;t r I ►I ' �. w r i►
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i� i, ►,i t rt■ t.,
WHEREAS, the Board of County Commissioners approved Ordinance #004-2013 on
January 16, 2013. The intent of the ordinance was to amend the provisions of Monroe County
Code Section 130-160 to be consistent with Monroe County Comprehensive Plan Policy
101.13.4; and
WHEREAS, Monroe County Code Section 130-160 and Monroe County Comprehensive
Plan Policy 101.13.4 pertain to transferable development rights, commonly referred to as TDRs;
and
WHEREAS, additional amendments to Monroe County Code Section 130-160 are necessary
to address inconsistencies between Monroe County Cade Section 130-160 and the Monroe
County Comprehensive Plan that were inadvertently not corrected by Ordinance #004-2013; and
WHEREAS, Monroe County Comprehensive Plan Policy 101.13.4 allows the transfer of
TDR's from sender sites within habitat of specified types which lie within any zoning category,
however Monroe County Code Section 130-160 - as revised by Ordinance #00 -2013 - requires
that the sender site be within a listed zoning category (and thus restricted to only those 6 zoning
categories) and be within a listed habitat type (and thus further restricted to having to comply
with the zoning criteria and the habitat criteria, rather than one or the other); and
WHEREAS, Monroe County Comprehensive Plan does not prohibit the transfer of TDR's to
tier I parcels. In other policies, the Comprehensive Plan discourages development on tier I
parcels; however it does not prohibit; and
Paget of 5
WHEREAS, based upon the information and documentation submitted, the Commission
makes the following Conclusions of Law: 1) the text amendment is consistent with the Principles
for Guiding Development in the Florida Keys Area of Critical State Concern; 2) the text
amendment is consistent with the provisions and intent of the Monroe County Comprehensive
Plan; and 3) the text amendment is consistent with the provisions and intent of the Monroe
County Code; and
WHEREAS, during a regularly scheduled meeting held on April 23. 2013, the Monroe
County Development Review Committee reviewed the ordinance and recommended approval to
the Board of County Commissioners; and
WHEREAS, during a regularly scheduled public hearing held on May 29, 2013, the Monroe
County Planning Commission reviewed the ordinance and recommended approval to the Board
of County Commissioners;
NOW, THEREFORE, BE IT ORDAINED BY THE MONROE COUNTY BOARD OF
COUNTY CO
Section 1. Section 130-160 of the Monroe County Code shall be amended as:
i'11111111 1� , L I I
(a) General and criteria. All residential development rights allocated or established in
sections 130-157 and 130-162 are transferable from one parcel of land to another parcel
of land, provided that the sender and receiver sites meet all of the following criteria:
(1) A sender site is the land area from which the development right(s) to be transferred is
derived. In the event an applicant intends to only use part of a greater property for a
transferable development right application, the additional land area not required to
amass the transferable development right(s) shall not be considered part of the sender
site and not subject to conservation as required in subsection (8). As part of the
application required in subsection (b)(2), the applicant shall provide a boundary
survey and legal description that identify the boundaries of the sender site within the
greater property.
A sender site shall be within one of the following Land Use (Zoning) Districts in
subsection a. and/or contain at least one of the following habitat types in subsection
b.:
a. Land Use (Zoning) Districts: Conservation (C), Mainland Native (MN), Native
Area (NA), Offshore Island (OS), Parks and Refuge (PR) or Sparsely Settled
(SS).
b. Habitat Types: Freshwater wetlands, Saltmarsh/Buttonwood wetlands, High
quality high hammock, High quality low hammock, Moderate quality high
hammock, Moderate quality low hammock, High quality pinelands, Low quality
Page 2 of 5
pinelands, Beach/berm, Palm Hammock, Cactus Hammock, and/or Disturbed
wetlands.
(2) The maximum net densities set forth in sections 130-157 and 130-162 shall not be
exceeded and new development on a receiver site shall be developed in compliance
with each and every requirement of this Land Development Code.
(3) The maximum net densities set forth for the applicable future land use category in the
comprehensive plan shall not be exceeded and new development on a receiver site
shall be developed in compliance with each and every requirement of the
comprehensive plan.
(4) The assignment of transferable development rights to receiver sites designated tier I
shall be discouraged.
(5) The assignment of transferable development rights to receiver sites on Big Pine Key,
No Name Key, and North Key Largo from other areas of the County shall be
prohibited, excluding the assignments of transferable development rights a) from
sender sites on Big Pine Key to receiver sites on Big Pine Key; b) from sender sites
on No Name Key to receivers sites on No Name Key, and c) from sender sites within
North Key Largo to receiver sites within North Key Largo.
(6) The assignment of transferable development Tights to receiver sites within Land Use
(Zoning) Districts that do not have a maximum net densities is prohibited (including,
but not limited to, Improved Subdivision (IS, IS-D, IS-M, or IS-V), Urban Residential
Mobile Home (URM or URM-limited), Sparsely Settled (SS), Native Area (NA),
Offshore Island (OS), and Mainland Native (MN).
(7) A development right may be transferred in part, provided it is rounded to the nearest
tenth (i.e. if a sender site is designated Native Area (NA) and consists only of two (2)
acres of upland, the property owner may transfer the fractional 0.50 transferable
development right). However, in accordance with subsection (8), in no event shall a
property owner utilize part of a sender site's acreage for a transferable development
right and maintain the right to develop that acreage as the land use intensity shall be
exhausted.
(8) Prior to application for a building permit authorizing the development of a residential
dwelling unit on a receiver site requiring a transferable development right, the sender
site(s) shall be a) dedicated to the County or b) placed in a conservation easement
prohibiting its future development. A conservation easement shall be reviewed and
approved by the Planning and Environmental Resources Department prior to its
recording in the official records of the County.
(b) Procedure, The transfer of development rights shall be carried out as follows:
Page 3 of 5
(1) A minor conditional use permit shall be required to identify, determine the eligibility
of and document the approval of the sender and receiver site, pursuant to the process
set forth in section 110-69. If a single receiver site is proposed to receive transferable
development rights from multiple sender sites, a conditional use permit application
for each sender site shall be required, All sender and receiver sites associated with a
proposed transfer of a transferable development right shall be identified at the time of
application;
(2) The minor conditional use permit application required in subsection (b)(1) shall be
submitted in a form provided by the Planning and Environmental Resources
Department and include the following:
a) The names and addresses of the property owners of record for the sender
site(s) and receiver site(s),-
b) The property record cards from the Monroe County Property Appraiser of the
sender site(s) and receiver site(s);
c) Written legal descriptions of the sender site(s) and receiver site(s);
d) A copy of the affidavit of intent to transfer;
e) Boundary surveys and legal descriptions of the sender site(s) and receiver
site(s), prepared by a surveyor registered in the State of Florida, showing the
boundaries of the sites, elevations, bodies of water and wetlands, total
acreage, total upland acreage and total acreage by habitat; and
f) Vegetative studies of the sender site(s) and receiver site(s).
(3) A development order shall memorialize approval of the minor conditional use pen -nit
required in subsection (b)(1). The development order shall include language requiring
a Deed of Transfer described in this subsection (below). After successfully passing all
applicable appeal periods, the development order shall be recorded in the official
records of the Monroe County Clerk of the Circuit Court. Such recording shall be
carried out so that the document is associated with all applicable sender and receiver
sites; and
(4) Prior to issuance of a building permit authorizing the development of a residential
dwelling unit, all or a part of which is derived from a transferred development right, a
deed of transfer shall be recorded in the chain of title of the sender site (transferor
parcel) containing a restrictive covenant prohibiting the development that would
require use of any of the allocated density that was transferred from the parcel.
a
Section 2. SeverabilitE.
If any section, paragraph, subdivision, clause, sentence or provision of this ordinance shall be
adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect,
impair, invalidate, or nullify the remainder of this ordinance, but the effect thereof shall be
confined to the section, paragraph, subdivision, clause, sentence, or provision immediately
involved in the controversy in which such judgment or decree shall be rendered.
Page 4 of 5
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Section 3._Conflicting Provisions.
All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed to the
extent of said conflict.
Section 4. Transmittal.
This ordinance shall be transmitted to the Florida State Land Planning Agency as required by F.S.
380.05 (11) and F.S. 380.0552(9).
Section 5. Filing.
This ordinance shall be filed in the Office of the Secretary of the State of Florida but shall not
become effective pursuant to Section 7 until a final order is issued according to F.S. 380.05(6) by
the Florida State Land Planning Agency or Administration Commission approving the ordinance,
and if the final order is challenged, until the challenge to the order is resolved pursuant to F.S.
Chapter 120.
Section 6. Inclusion in the MonroLLQRRL.Lo e.
The provisions of this Ordinance shall be included and incorporated in the Code of Ordinances
of the County of Monroe, Florida, as an addition to amendment thereto, and shall be
appropriately renumbered to conform to the uniform marking system of the Code.
This ordinance shall become effective as provided by law and stated above. This ordinance
applies to any applicable application submitted after the effective date.
PASSED AND ADOPTED by the Board of County Commissioners of Monroe County, Florida
at a regular meeting held on the 17thday of —July 12013.
Mayor George Neugent
Mayor Pro Tem Heather Carruthers
Commissioner Danny Kolhage
Commissioner Sylvia Murphy
Commissioner David Rice
Attest: Amy Heavilin, Clerk
.2
Clerk
Yes
Yes
Yes
Yes
Yes
7)
COMMISSIONERS
Cn
Mayor George Neugent
U
C-D
MONROE COUNTY ATTORNEY
Page 5 of 5 AP VEILD All FORM,
S ;SE kV EVE T.
ASSISTANT C
C U �NTY A
oat: �TT6RNEY
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STATE OF FLORIDA
WTVISION OF ADMINISTRATIVE HEARING5
Petitioners,
VS. Case No. 13-4632GM
MONROE COUNTY PLANNING
COMMISSION,
MEMEEMEM
This matter was heard before the Division of Administrative
Hearings (DOAH) by its assigned Administrative Law Judge, D. R.
Alexander, on May 23, 2014, at video teleconferencing sites in
Tallahassee and Marathon, Florida.
FAMUM-111
For Petitioners: Andrew M. Tobin, Esquire
Andrew M. Tobin, P.A.
Post Office Box 620
Tavernier, Florida 33070-0620
For Respondent: Derek V. Howard, Esquire
Assistant County Attorney
Post Office Box 1026
Key West, Florida 33041-1026
STATEMENT OF THE ISSUE
The issue is whether to approve Petitioners, application
for a beneficial use determination (BUD) on their property
in Key Largo, Florida, and if approved, to determine the type of
relief that is appropriate.
. This proceeding was initiated after Petitioners were
advised by the Monroe County Planning Commission (Commission)
that they could not build a single-family residence on their
property because of zoning restrictions adopted by Monroe County
(County) in 1986. Pursuant to section 102-105, Monroe County
Code (M.C.C.), Petitioners filed an application for a BUD,
claiming that the 1986 regulatory action by the County
constitutes a compensable taking of their property. This
administrative remedy, the current version of which was adopted
by the County in 2007, is available to property owners to secure
relief through a non -judicial process when they believe that a
land development regulation (LD,R) or comprehensive plan policy
has deprived them of all beneficial use of their property.
See § 102-102, M.C.C.; Future Land Use Element Policy 101.18.5.
Pursuant to a contract, the application was referred by the
Commission to DOAH for a hearing before a special magistrate
(administrative law judge). See § 102-105, M.C.C.
At the hearing, Scott D. Beauchamp testified on his own
behalf and presented the testimony of Emily Schemper, County
Principal Planner; Randolph D. Wall, a builder and former
2
Planning Commissioner; and Robert A. Smith, an environmental
consultant and accepted as an expert. The County presented the
testimony of Emily Schemper, who was accepted as an expert.
County Composite Exhibit 1 was also received.
There is no transcript of the hearing. Proposed
Recommended orders were filed by the parties, and they have been
considered in the preparation of this Recommended Ordej
FINDINGS OF FACT
1. Petitioners purchased their property in September 2001
for $60,000.00 (or at the peak of the Florida housing boom).
The parcel is located at the corner of Meridian Avenue and
Lycaloma Avenue, mile marker 94.5, on the Gulf of Mexico side of
U.S. Highway 1 in Key Largo. It is also identified as Block 9,
Lot 1, Section 3 of the Bay Haven Subdivision, an older,
partially -developed subdivision comprised of four sections and
several hundred lots.
2. Since September 15, 1986, the subdivision, including
Petitioners' lot, has been zoned Suburban Residential (SR),
which allows only one residential unit per two acres. No
challenge to that action was taken by any person, and no
contention has been made that the County failed to follow the
established procedure for adopting its LDRs. A challenge to the
3
validity of the LDRs is now barred by the statute of
limitations.' See 9 95. 11 (3) (p) , Fla. Stat.
3. The Bay Haven Subdivision is located in South Key Largo
and was first platted after World War II. Building permits for
z11 existing homes in the subdivision were applied for before
the zoning change became effective in September 1986. Due to
the SR restrictions, around 250 lots remain vacant at this time,
including 99 in Section 3 where Petitioners' lot is located.
Many of these vacant lots have been deeded by their owners to
the County for conservation purposes in exchange for points that
can be used with a Rate of Growth Ordinance (ROGO )2 allocation to
develop other property in the County,
4. Petitioners' corner lot lies at the intersection of two
streets and has an irregular shape with a large radius at the
intersection. It is bordered on two sides by single-famill
homes, measures 8,276 square feet, or around 0.19 acres, and i5
5. Mr. Beauchamp, who resides in Wisconsin, testified that
Yee purchased the property with the expectation of building a
home when he retired as an air traffic controller. Before
purchasing the property, he assumed that it was zoned Improved
0
Subdivision (IS) because this was the zoning incorrectly shown
on the multiple listing service sheet provided by his realtor.
6. Neither Mr. Beauchamp nor his realtor was familiar with
County zoning classifications or permissible uses for the
parcel.3 Sometime in 2006 they visited a County office to secure
further information. Mr. Beauchamp says they spoke with two
unidentified "planners," who told them that a single-family home
could be built on the property. However, nothing was confirmed
in writing, and there is no record of the meeting. Other than
this meeting, neither Mr. Beauchamp nor his realtor took any
other steps to verify the zoning on the property and/or any
development restrictions that might apply. Based solely on the
oral advice given by these two unnamed County employees, the
Beauchamps purchased the lot.
7. According to Petitioners' expert, Robert Smith, before
purchasing a vacant lot in the Keys, normal due diligence would
require a prospective purchaser to arrange a pre -application
conference with Planning Department staff and secure a written
Letter of Understanding confirming the rights of the property
owner. See § 110-3, M.C.C. However, Petitioners (and their
realtor) did not complete appropriate due diligence; they simply
checked with an unidentified County employee and without any
4
other assurance purchased the property.
0
8. In May 2012, Petitioners' agent, Randy Wall, a builder
and former Planning Commissioner but not an attorney, met with a
representative of the County Building Department to begin the
process of securing approval to build a single-family residence
on the property. Mr. Wall was advised that the zoning on the
property was SR, which allows only one dwelling unit per two
acres. This was confirmed in an email dated July 13, 2012, from
the Assistant Director of Planning, which stated as follows:
The parcel has a zoning designation of SR
which requires Two (2) acres per residential
unit. As noted by planning staff, this
parcel does not have sufficient land area
for the zoning and associated density.
9. At the meeting, Mr. Wall also inquired about the
1�,ossibility of changing the zoning on the property from SR to IS
(which would allow construction of a single-family home), but
tecided not to pursue that option because he recognized the poor
prospects of securing a zoning change for a single lot in a
large subdivision, when scores of other lots were subject to the
same restriction. He assumed, probably correctly, that this
might invite a spot zoning challenge.
10. Other than having a discussion with County
representatives, Mr. Wall did nothing more. He did not file an
application for a residential dwelling unit allocation under the
County's ROGO process, or any other formal application for
2
relief, such as a change in the zoning district or land use
designation, a variance, or an exception.
11. Believing that the County staff would "fix the
problem" because the County had made "a mistake" in
reclassifying the entire subdivision as SR, Mr. Wall prepared
and filed a BUD application, which was eventually deemed to be
complete on September 27, 2013. The BUD process is intended "to
provide a means to resolve a landowner's claim that a [LDR] or
comprehensive plan policy has had an unconstitutional effect on
property in a nonjudicial forum." 9 102-103(a), M.C.C.
12. An applicant for a BUD must include a statement
"describing the [LDRI, comprehensive plan policy, or other final
action of the county, which the applicant believes necessitates
relief under this division." § 102-105(b)(5), M.C.C. The
application at issue simply stated that "the adoption of the
land use designation of SR for the subdivision of Bay Haven
constituted a compensable taking." The application did not
refer to any comprehensive plan policy or final action taken by
the County. As relief, the application requested that the
County take one of the two following actions: (a) change the
Future Land Use Map and zoning designations to allow a residence
to be built on the lot; or (b) notwithstanding the SR zoning,
issue a permit for development.
ig
13. The BUD process requires applicants to state whether
they are alleging a facial or as -applied regulatory taking as
the basis for administrative relief. See § 102-104, M.C.C.
Unless a landowner asserts that a LDR or comprehensive plan
provision, on its face, has caused a taking of his property,
relief is permitted only after "the landowner has received a
final decision on development approval applications from the
county, including building permit allocation system allocations,
appeals, administrative relief pursuant to section 138-S4, and
other available relief, exceptions, or variances." Id.
14. Mr. Wall did not formally apply for any type of
development approval and received no final decision, as
contemplated by the Code. However, Mr. Wall testified that he
"understood" the county was waiving that requirement in this
instance. He also stated in the application that "Joe Haberman
contracted [sic] the Seauchamps and informed them that staff had
deemed this phase unnecessary and to move directly to submitting
a [BUD] application." Other than this assertion, there is no
evidence to confirm this understanding, and the County's
Principal Planner testified that a waiver had not been granted.
She also confirmed that no development approval application had
been filed, and no final decision had been made, both required
by the Code in order to seek relief under an "as applied"
1.9
theory. Therefore, rightly or wrongly, as plainly stated in the
application, Petitioners' basis for relief is that the LDR on
its face constitutes a taking of their property.5
15. Besides a single-family home, which is impermissible
ssible
here due to size limitations of the lot, two other uses are
permitted as of right in the SR district: community parks and
beekeeping. See § 130-94, M.C.C. Also, a property owner may
apply for a minor conditional use, subject to approval by the
Planning Director. Permissible minor conditional uses include
public or private community tennis courts and swimming pools;
public buildings and uses; parks and community uses;
institutional uses; and churches, synagogues, and houses of
worship. Id. However, Mr. Beauchamp testified that he is not
interested in any of these uses since he believes most, if not
all, would be offensive to a residential neighborhood or simply
impractical due to the size of his lot. The property can also
be sold to the owners of adjacent Lot 11 to be used as a side
yard, its use before being purchased by Petitioners. Finally,
the Principal Planner testified that there are transferable
development rights (TDRs) on the property, whose value at this
time is unknown. See § 130-160, M.C.c. Therefore, the
Beauchamps are not deprived of all economically beneficial use
of their property. Cf. § 102-110(c), M.C.C. (11[tjhe highest,'
Pi
common, or expected use, is not intended as an appropriat4
remedy, unless expressly required by applicable statute or case
law") .
16. There was no evidence from a property appraiser on the.
fair market value of the parcel, as encumbered by the
regulation.
CONCLUSIONS OF LAW
17. Pursuant to a contract with DOAH, after a BUD
application is determined to be complete, it is transmitted to a
special magistrate (administrative law judge) to set a hearing
date. See § 102-105(d)(2), M.C.C. The hearing process is
governed by the following broad guidelines established in
subsection 102-106(b):
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.
L8. Section 102-109(a) provides that relief under the BU3
process:
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, statute of
Mus
limitations, lathes, or other preclusions of
relief."
19. The applicant has the burden of showing that relief is
appropriate. See § 102-109(b), M.C.C.
20. An applicant must allege and then prove (a) that the
enactment of a LDR or comprehensive plan provision, on its, face,
constitutes a taking of the property; or (b) that "other final
action" has been taken on a development approval application,
which results in a taking of the property.
21. The statute of limitations for the two remedies begins
to run at different times. For a facial takings claim, it
begins to run on the date of the enactment of the regulation
effectuating the alleged taking. Collins v. Monroe Cnty., 999
So. 2d 709, 713 (Fla. 3d DCA 2008). For an as -applied takings
claim, it does not begin to run until the property owner has
obtained a final decision from the land use authority regarding
the application of the regulations to the property. �See Beye
v. City of Marathon, 37 So. 3d 932, 934 (Fla. 3d DCA 2010).
22. If the statute of limitations has run, or the zoning
ordinance does not preclude all development of the property, a
takings claim must necessarily fail. Beyer at 934,* Collins at
713. Here, the four-year statute of limitations accrued with
the enactment of the 1986 zoning ordinance and precludes a
finding of liability on the part of the County. See § 102-109,
11
M.C.C. While the parties dispute the economic productivity of
the other uses allowed on the property, it was not disputed that
the Code permits other uses; the parcel can be sold to the
owners of adjacent Lot 11 to be used as a side yard; and there
are TDRs associated with the parcel that can be used for other
purposes. Therefore, even if the claim had been timely filed,
the mere enactment of the regulation did not constitute a taking
of all economic value of the land.
23. For an as -applied takings claim to be considered ripe,
a property owner must have taken reasonable and necessary steps
to allow the County to exercise its judgment regarding
development plans, including the opportunity to grant waivers
and variances or other relief. See Collins at 716; § 102-104,
M.C.C. Petitioners suggest, however, that given the
circumstances here, the filing of a development application
would be futile. Although the final action prerequisite may be
satisfied by proof that attempts to comply would be futile,
futility is not established until at least one meaningful
application has been filed. Glisson v. Alachua Cnty., 558 So.
2d 1030, 1036 (Fla. 1st DCA 1990)(quoting Unity Ventures v. Lake
Cnty., 841 F.2d 770, 775 (7th Cir. 1987)). It is undisputed
that no "meaningful application" has been filed, and no final
action has been taken. Also, there is insufficient proof to
12
establish that the County intended to waive this requirement.
Therefore, even if the Beauchamps, application does not
implicate a facial takings claim, an as -applied claim is not yet
ripe and should be denied.
24. In summary, a court of competent jurisdiction likely
would determine that a final action of the county has not caused
a taking of property and a judicial finding of liability would
be precluded by a cognizable defense. See § 102-109, M.C.C.
Therefore, the application should be denied.
Based on the foregoing Findings of Fact and Conclusions of
Law, it is
RECOMMENDED that the Board of County Commissioners deny
Petitioners, application for relief under the BUD Ordinance.
DONE AND ENTERED this 10th day of July, 2014, in
Tallahassee, Leon County, Florida.
'D RI - ola"M_
D. R. ALEXANDER
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847
www.doah.state.fl.us
13
Filed with the Clerk of the
Division of Administrative Hearings
this 10th day of July, 2014.
I Even though the County gave timely and proper notice that a new
zoning code and comprehensive plan were being adopted,
Petitioners' agent, Mr. Wall, opined that many property owners,
including himself, were unaware of the ramifications of the
changes and failed to contest the LDRs or otherwise take any
interest in the amendment process.
2 At the direction of the State, the ROGO was implemented in
order to provide for the safety of residents in the event of a
hurricane evacuation and to protect the significant natural
resources of the County. ROGO is a competitive permit allocation
system whereby those applications with the highest scores are
awarded building permits. Even though there are currently more
than 8,000 privately owned vacant lots in unincorporated Monroe
County, Florida Administrative Code Rule 28-20.140 allows the
County to issue only 197 building permits per year for new
residential development within unincorporated Monroe County in
order to maintain established hurricane evacuation clearance
times. This limitation on ROGO permits extends through the year
2023. See County E. 1, Staff Report, pp. 12-13.
3 The undersigned finds it puzzling that a licensed realtor in
the Keys would be unfamiliar with zoning districts, related
development restrictions, and the appropriate steps necessary to
verify that information.
4 The record does not show how many times the property was sold
between 1986 and 2006. In any event, the undersigned assumes the
latest sellers failed to disclose the SR zoning restrictions when
they sold the property to the Beauchamps in 2006.
5 At hearing, and in their Proposed Recommended order,
Petitioners took the position that their application implicated
an as -applied takings claim. They did not directly respond to
the County's treatment of the application as a facial takings
claim.
191
COPIES FURNISHED:
Gail Creech, Clerk
Monroe County Planning Commission
Suite 410
2798 Overseas Highway
Marathon, Florida 33050-2227
Andrew M. Tobin, Esquire
Andrew M. Tobin, P.A.
Post Office Box G20
Tavernier, Florida 33070-0620
Derek V. Howard, Esquire
Assistant County Attorney
Post Office Box 1026
Key West, Florida 33041-1026
NOTICE OF FURTHER RIGHTS
This Recommended Order will be considered by the Board of Count
Commissioners at a public hearing. See § 102-108, M.C.C. The
time and olace of such hearing will be noticed by the County. I
15