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Item P1C ounty of M onroe {f `° " rel BOARD OF COUNTY COMMISSIONERS n Mayor David Rice, District 4 The FlOnda Key y m 1 �� Mayor Pro Tem Sylvia J. Murphy, District 5 Danny L. Kolhage, District 1 George Neugent, District 2 Heather Carruthers, District 3 County Commission Meeting July 18, 2018 Agenda Item Number: P.1 Agenda Item Summary #4051 BULK ITEM: No DEPARTMENT: Planning/Environmental Resources TIME APPROXIMATE: STAFF CONTACT: Emily Schemper (305) 289 -2506 3:00 P.M. PUBLIC HEARING AGENDA ITEM WORDING: A public hearing pursuant to Section 102 -108 concerning a request for a Beneficial Use Determination by Patricia J. Edwards and Henry A. Olynger for property legally described as Lot 1, Tract A, Ramrod Shores Third Addition (PB6 -108), Ramrod Key, Monroe County, Florida having real estate number 00209971- 004600. ITEM BACKGROUND: In 2016, Petitioners filed a BUD application under section 102 -102, et. seq., Monroe County Code. In 2017, Petitioners filed an Amended BUD Application. Petitioners asserted that a December 4, 2015, denial of their single - family residential building permit application constituted an as- applied taking of their property. The denial stated that the property does not constitute a "lot" for purposes of density. As relief, Petitioners seek to have the property be awarded a density allocation for development of one dwelling unit and a building permit issued. A hearing on Petitioner's application was held before an Administrative Law Judge (ALJ) on January 16, 2018. On March 27, 2018, the ALJ issued a Recommended Order recommending that the Board of County Commissioners deny Petitioner's application for relief. PREVIOUS RELEVANT BOCC ACTION: None. CONTRACT /AGREEMENT CHANGES: n/a STAFF RECOMMENDATION: Approval of Recommended Order by Administrative Law Judge Francine M. Ffolkes, dated March 27, 2018, denying application for Beneficial Use Determination relief under Section 102 -104. DOCUMENTATION: 2016 -202 Recommended Order in Olynger BUD 2016- 202_Special_Master_Memo_ 11.09.17 FINANCIAL IMPACT: I 11 T/ 1 X117.1.6 Derek Howard Completed 06/26/2018 9:24 AM Emily Schemper Completed 06/26/2018 3:14 PM Christine Hurley Completed 06/26/2018 4:18 PM Budget and Finance Completed 06/27/2018 11:38 AM Maria Slavik Completed 06/27/2018 11:47 AM Kathy Peters Completed 06/27/2018 5:41 PM Board of County Commissioners Pending 07/18/2018 9:00 AM STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS PATRICIA J. EDWARDS AND HENRY A. OLYNGER, JR. /TIC, Petitioners, VS. Case No. 17- 6177GM MONROE COUNTY PLANNING COMMISSION, Respondent. RECOMMENDED ORDER This matter was heard before the Division of Administrative Hearings (DOAH) by its assigned Administrative Law Judge, Francine M. Ffolkes, on January 16, 2018, at video teleconferencing sites in Tallahassee and Key West, Florida. APPEARANCES For Petitioners: Van D. Fischer, Esquire VDF Law, PLLC Post Office Box 420526 Summerland Key, Florida 33042 For Respondent: Derek V. Howard, Esquire Monroe County Attorney's Office 1111 12th Street, Suite 408 Post Office Box 1026 Key West, Florida 33041 -1026 STATEMENT OF THE ISSUE The issue is whether to approve the Petitioners' ET application for a beneficial use determination (BUD) regarding their property on Ramrod Key, Florida, and if approved, to determine the type of relief that is appropriate. PRELIMINARY STATEMENT In 2016, the Petitioners filed a BUD application under section 102 -102, et. seq. Monroe County Code. In 2017, the Petitioners filed an Amended BUD Application. The Petitioners asserted that a December 4, 2015, denial of their single- family residential building permit application constituted an as- applied taking of their property. The denial stated that the property did not constitute a "lot" for purposes of density. As relief, the Petitioners seek to have the property awarded a density allocation for development of one dwelling unit and a building permit issued. Pursuant to a contract, the BUD Application was referred by the Respondent, Monroe County Planning Commission (County), to DOAH for a hearing before a special magistrate (administrative law judge). See § 102 -105, Monroe Cnty. Code. The parties filed their Joint Pre - hearing Stipulation on January 2, 2018, in which the parties separately listed their exhibits and the Petitioners indicated that they were not calling any witnesses. At the start of the hearing, the County lodged hearsay objections to two appraisals that were identified as Attachments 10 and 11 to the Amended BUD Application in the Petitioners' list of exhibits. The County followed up with objecting to the T oil entire Amended BUD Application as hearsay since the Petitioners were not presenting any direct evidence that would be corroborated by the Amended BUD Application. The undersigned ruled that the Amended BUD Application was not admitted into evidence for the truth of the matters asserted therein, but only admitted to show that an Amended BUD Application was submitted to the County.' Despite not being listed as a witness in the Joint Pre- hearing Stipulation, the undersigned allowed Henry A. Olynger, Jr., to testify on behalf of the Petitioners. The County presented the testimony of Kevin Bond, Monroe County Planning and Development Review Manager, who was accepted as an expert in land planning. A November 9, 2017, memorandum to the Special Magistrate was accepted into evidence. Neither party hired a court reporter to preserve the record of the hearing. Therefore, there is no transcript of the proceeding. The Petitioners filed a written Closing Argument and the County filed a motion to strike the Petitioners' Closing Argument. The County's motion to strike is denied. Proposed Recommended Orders were filed by the parties, and they were considered in the preparation of this Recommended Order. 3 FINDINGS OF FACT The following findings of fact are taken from the parties' joint pre- hearing stipulation, and the direct evidence adduced at the hearing. The Property 1. The Petitioners' property is located at 475 Brown Drive, Ramrod Key, in Monroe County. According to the Monroe County Property Appraiser, the size of the site is 0.95 acres. The property is vacant and contains disturbed and undisturbed wetland habitat. The property's immediate vicinity is described as residential development of single- family units to the west and south, environmentally sensitive lands to the south and east, and open water to the north. 2. The property is legally described as "being a portion of Tract `A', Ramrod Shores Third Addition, according to the plat thereof, as recorded in Plat Book 6, Page 108 of the Public Records of Monroe County, Florida" having real estate number 00209971- 004600. The property's current Land Use Map Zoning Districts are Improved Subdivision (IS) and Native Area (NA). The property's Future Land Use Map (FLUM) designations are Residential Medium (RM) and Residential Conservation (RC). The Tier Designation is Tier III Infill Area. ET I Relevant Prior County Actions 3. On December 19, 1972, the Monroe County Board of County Commissioners (BOCC) passed Resolution No. 146 -1972 approving the Plat of Ramrod Shores Third Addition and filed for record in Plat Book 6 at Page 108 of the Public Records of Monroe County. The landowner was James M. Brown, as Trustee. The subject property is within Tract A of this plat. 4. In 1986, Monroe County adopted a revised set of zoning regulations via Ordinance No. 33 -1986. Ordinance No. 33 -1986 also approved a revised series of zoning maps (also known as the Pattison Maps) for all areas of the unincorporated county by reference. With the adoption of the 1986 Land Development Regulations and zoning maps, most of the Petitioners' property was designated as IS zoning with a small portion as NA. 5. In 1992, a revised series of zoning maps were approved (also known as the Craig Maps) for all areas of the unincorporated county. With the adoption of the revised (Craig) zoning maps, the Petitioners' property remained designated as IS with a small portion as NA. 6. In 1993, the County adopted a set of FLUM maps pursuant to a joint stipulated settlement agreement and section 163.3184, Florida Statutes. BOCC Ordinance No. 016 -1993 memorialized the approval. The FLUM maps took effect in 1997 after approval from the state land planning agency. With the adoption of the FLUM ET 5 maps, the Petitioners' property was designated as RM and a small portion as RC. 7. On March 23, 2015, the Petitioners were provided a Letter of Current Site Conditions for the subject property. The letter summarized the environmental habitats on the property and the applicable portions of the Comprehensive Plan and Land Development Code. The letter stated the KEYWEP score for disturbed portions of the wetland was 4.45. The score of 4.45 means the property was buildable, disturbed wetlands. The undisturbed wetlands consist of tidal mangroves and were by definition "red flag" wetlands. Disturbed wetlands may be developed under section 118 -10, Monroe County Code. Development is not permitted in undisturbed wetlands where 100 percent open space is required. 8. On November 24, 2015, the Petitioners applied for a building permit to construct a single- family detached residential dwelling unit. On December 4, 2015, the County's Planning and Environmental Resources Department (the Department) sent the Petitioners a notice that the Department denied their building permit application number 15106233. The notice informed the Petitioners that the Department's decision may be appealed within 30 calendar days. No appeal was filed to challenge the propriety of the Department's decision. T 0 9. The Department's December 4, 2015, notice stated that t he RanT od Shores Thi r d Add t i on PI at shows t hat t he Petitioners' property is located within Tract A. Although Tract A was subdivi6ed into seven parcels, this was never shown as lots on an approved and duly recorded plat. The Department determined that the property did not meet the definition of "lot" in section 101 -1, Monroe County Code, and did not meet the residential density requirements of the IS Land Use District in order to allow the proposed development of a dwelling unit. See § 130 -157, Monroe Cnty. Code. 10. On December 7, 2016, the Department received the agent's BUD Application, File No. 2016 -202. On December 22, 2016, the Department sent the agent a Notice of Deficiencies pursuant to section 102 -105, Monroe County Code, after the application was reviewed by staff to determine if the application was complete and included the materials and information listed in section 102- 105(b). On January 6, 2017, the Department received additional materials and information from the agent. On January 27, 2017, the Department notified the agent that the application was determined to be sufficient. 11. On March 28, 2017, the Department forwarded the BUD application to DOAH for adjudication. After the Petitioners sought to amend their application with a new basis for relief, DOAH relinquished its jurisdiction. ET 7 12. On June 12, 2017, the Petitioners submitted an Amended BUD Application to the Department. After sending a second Notice of Deficiencies and receiving additional materials and information from the agent, the Department determined that the application was sufficient. 13. The Amended BUD Application was suspended for 60 days, pursuant to BOCC Resolution No. 214 -2017, as a temporary emergency measure after Hurricane Irma made landfall in the Florida Keys on September 10, 2017. On November 9, 2017, the Department forwarded the BUD Application to DOAH for adjudication. Petitioners' Actions 14. The Petitioners purchased the subject property on April 23, 1990. Between 1990 and 1991, the Petitioners submitted an application to the Department of Health and Rehabilitative Services (HRS) for an on -site aerobic septic system. At first, the HRS denied the application based on lot size issues. The HRS Variance Review Board recommended disapproval of the septic system application on June 7, 1991, on the grounds of insufficient lot size and an illegal canal. 15. After the Petitioners failed to obtain HRS approval in 1991, they took no further steps to develop the property until they submitted an application for a Letter of Current Site ET Conditions on January 30, 2015, and an application for a single- family residence on November 24, 2015. 16. Mr. Olynger testified that the Petitioners purchased the property because of the ocean view and expected to build a house on the property. He testified that after the HRS denials in the early 1990s, he started the process of trying to develop the property again in 2014 because central sewer was now available. IS Land Use District 17. Due to the density requirements for the IS Land Use District of one dwelling unit per lot, the Petitioners are unable to construct a single- family home, which is an as -of- right use in the IS Land Use District. 18. The IS Land Use District permits other as -of -right and conditional uses. While Mr. Olynger disputed the economic productivity of some of these uses, it was not disputed that the property could potentially be used for (a) recreational purposes; (b) a community park; (c) beekeeping; (d) wastewater system; (e) Rate of Growth Ordinance (ROGO) points or transferable development rights (TDRs); or (f) sold to a neighbor for open space, yard expansion or an accessory use, such as a pool. 19. Mr. Bond testified that that the County's Comprehensive Plan and Code allow landowners competing for the ET 0 limited number of building allocations in the point -based ROGO to buy and donate vacant parcels such as the subject property to increase their ROGO scores. The subject property qualifies as a ROGO Lot and there is an active secondary market of people buying and trading ROGO Lots in Monroe County. 20. Mr. Bond also testified that the Petitioners could apply for Future Land Use Map and Land Use (Zoning) District Map amendments to a category that would allow for the construction of a single- family dwelling based upon an adopted acreage density standard. The Petitioners have not made any such applications. 21. There was no direct evidence on the fair market value of the property, as encumbered by the regulation . 2 CONCLUSIONS OF LAW 22. 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), Monroe Cnty. Code. The hearing process is governed by the following broad guidelines set forth 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 his or her representative shall represent the county's case. The special magistrate may accept briefs, evidence, reports, or proposed recommendations from the parties. 10 23. Section 102- 109(a) provides: [R]elief . . . may be granted where a court of competent jurisdiction likely would determine that a final action by the county has caused a taking of property and a judicial finding of liability would not be precluded by a cognizable defense, including lack of investment - backed expectations, statutes of limitation, laches, or other preclusions to relief. 24. The Petitioners have the burden of showing that relief is appropriate. See § 102- 109(b), Monroe Cnty. Code. The Petitioners have alleged an as- applied regulatory taking. 25. Section 101 -104, Monroe County Code, defines when a landowner can apply for BUD relief: Relief under this division cannot be established until the landowner has received a final decision on development approval applications from the county, including building permit allocation system applications, appeals, administrative relief pursuant to sections 138 -27 [ROGO] and 138- 54 [NROGO], 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. 26. The BUD process requires the Petitioners to receive a final decision on various forms of relief listed in section 102- 104 before applying for relief under the BUD process. The evidence established that the Petitioners did not appeal the denial of their building permit, did not apply for administrative relief under the ROGO provisions, and did not 11 apply for any zoning district map or future land use map amendments to a category that would allow for the construction of a single- family dwelling based upon an adopted acreage density standard. See § 102 -104, Monroe Cnty. Code. 27. 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 v. Monroe Cnty., 999 So. 2d 709, 716 (Fla. 3d DCA 2008); § 102 -104, Monroe Cnty. Code. 28. Under the provisions of the Monroe County Code, this Amended BUD Application fails to comply with the exhaustion requirement of section 102 -104 and applicable case law. Therefore, the Petitioners' as- applied claim is not ripe and should be denied. 29. A court of competent jurisdiction likely would determine that the Petitioners' as- applied claim is not ripe, which is a cognizable defense precluding a judicial finding of liability. See § 102 -109, Monroe Cnty. Code. ET 12 RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of County Commissioners deny the Petitioners' application for relief under section 102 -104, Monroe County Code. DONE AND ENTERED this 27th day of March, 2018, in Tallahassee, Leon County, Florida. FRANCINE M. FFOLKES 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 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2018. P TAT TIT\T r'' 9 C l/ Hearsay alone cannot form the basis for a finding of fact. See § 120.57(1)(c), Fla. Stat. (2017)( "Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions."). 21 Appraisals were specifically objected to by the County as hearsay documents. The appraisals were attachments to the BUD application, which was not admitted into evidence for the truth of the matters asserted therein. Since direct evidence 13 regarding appraised values was not presented by the Petitioners, no f i ndi ng of fact can be made using only hearsay as the basis. I d. CCPI ES FURNI SHED: Ilze Aguila, Senior Coordinator County of Monroe Board of County Commissioners Suite 410 2798 Overseas Highway Marathon, Florida 33050 (eServed) Derek V. Howard, Esquire Monroe County Attorney's Office 1111 12th Street, Suite 408 Post Office Box 1026 Key West, Florida 33041 -1026 (eServed) Van D. Fischer, Esquire VDF Law, PLLC Post Office Box 420526 Summerland Key, Florida 33042 (eServed) NOTICE OF FURTHER RIGHTS This Recommended Order will be considered by the Board of County Commissioners at a public hearing. See § 102 -108, Monroe Cnty. Code. The time and place of such hearing will be noticed by the County. 14 MEMORANDUM MONROE COUNTY PLANNING & ENVIRONMENTAL RESOURCES DEPARTMENT To: Special Magistrate From: Mayte Santamaria, Senior Director of Planning & Environmental Resources Kevin Bond, AICP, Planning and Development Review Manager Date: November 9, 2017 Subject: Application for Beneficial Use Determination (BUD) by Van D. Fischer, Esq., on behalf of owners Patricia J. Edwards and Henry A. Olynger, Jr., for property located at 475 Brown Drive, Ramrod Key, legally described as a parcel of land in part of Tract "A," Ramrod Shores Third Addition (Plat Book 6, Page 108), Monroe County, Florida, having real estate 4 00209971 - 004600 (File 4 2016 -202) Hearing: TBD 2 L REQUESTED RELIEF 3 The agent/applicant, Van D. Fischer, Esq. (the "agent "), on behalf of landowners, Patricia J. 4 Edwards and Henry A. Olynger, Jr. (the "landowners "), requests relief from the staff decision 5 to fail the Planning review of Building Permit 4 15106223 for a new single - family detached 6 residential dwelling. 7 File 4 2016 -202 Beneficial Use Detennination 11/9/2017 Staff Meino to Special Magistrate 475 Brown Drive, Ramrod Key Page 1 of 39 Subject Property (2015 Aerial) 1 2 3 4 5 File 4 2016 -202 Beneficial Use Detennination 11/9/2017 Staff Meino to Special Magistrate 475 Brown Drive, Ramrod Key Page 2 of 39 Subject Property with Land Use (Zoning) Districts (2015 Aerial) Subject Property with Future Land Use Map (FLUM) Categories (2015 Aerial) 1 II. BACKGROUND INFORMATION 2 3 Location: Ramrod Key, near U.S. 1 Mile Marker 27 bayside 4 Address: 475 Brown Drive, Ramrod Key 5 Real Estate Number: 00209971- 004600 6 Landowners: Patricia J. Edwards and Henry A. Olynger, Jr. 7 Applicant /Agent: Van D. Fischer, Esq. 8 Size of Site: 0.95 acres according to Monroe County Property Appraiser 9 Land Use Map (Zoning) Districts: Improved Subdivision (IS) and Native Area (NA) 10 Future Land Use Map (FLUM) Designations: Residential Medium (RM) and Residential 11 Conservation (RC) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Tier Designation: HI Infill Area Flood Zones: AE -8, AE -9, VE -10 and VE -11 Existing Uses: Vacant Existing Vegetation / Habitat: Disturbed and undisturbed wetlands Community Character of Immediate Vicinity: Residential development of single - family units to the west and south, environmentally sensitive lands to the south and east, and open water to the north. IIL RELEVANT PRIOR COUNTY ACTIONS FOR THE SUBJECT PROPERTY On December 19, 1972, the Monroe County Board of County Commissioners passed Resolution No. 146 -1972 approving the Plat of Ramrod Shores Third Addition and filed for record in Plat Book 6 at Page 108 of the Public Records of Monroe County, Florida. The landowner was James M. Brown, as Trustee. The subject property is within Tract A of this plat. In 1986, Monroe County adopted a revised set of zoning regulations via Ordinance No. 33- 1986. These 1986 Land Development Regulations were adopted February 28, 1986 by the Monroe County BOCC, approved by DCA July 29, 1986, and took effect on September 15, 1986. Ordinance No. 33 -1986 also approved a revised series of zoning maps (also known as the Pattison Maps) for all areas of the unincorporated county by reference. This map series was signed by then Planning Director Charles Pattison in 1986 and consisted of 21 sheets scaled at 1 "= 1000'. With the adoption of the 1986 Land Development Regulations and zoning maps, most of the landowners' property was designated as Improved Subdivision (IS) zoning with a small portion as Native Area (NA). In 1992, a revised series of zoning maps were approved (also known as the Craig Maps) for all areas of the unincorporated county. This map series was signed by then Planning Director Donald Craig in 1988 and consisted of 583 sheets scaled at 1 " =20'. Although signed in 1988, the Craig Maps did not receive final approval until 1992. The Monroe County Land Development Regulations, portions of which are adopted by Rule 28- 20.021, F.A.C., and File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 3 of 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 portions of which are approved by the Department of Community Affairs in Chapter 9J -14, F.A.C., were amended effective August 12, 1992. The Final Land Use District Map was revised to reflect the changes in these rules. With the adoption of the revised (Craig) zoning maps, the landowners' property remained designated as Improved Subdivision (IS) zoning with a small portion as Native Area (NA) zoning. In 1993, the County adopted a set of Future Land Use Maps (FLUM) pursuant to a joint stipulated settlement agreement and Section 163.3184, Florida Statutes. BOCC Ordinance No. 016 -1993 memorialized the approval. The FLUM maps took effect in 1997 after approval from the Florida Department of Community Affairs (amended pursuant to DCA Rule 9J- 14.022, January 4, 1996 and adopted by FAC Rule 28- 20.100 Part I, January 2, 1996 and Part II, July 14, 1997). This map series consists of 8 sheets scaled at 1 "= 2,000'. With the adoption of the FLUM maps, the landowners' property was designated as Residential Medium (RM) and a small portion as Residential Conservation (RC). On March 23, 2015, the Landowners were provided a Letter of Current Site Conditions for the subject property. The letter summarized the environmental habitats on the property and the applicable portions of the Comprehensive Plan and Land Development Code. The letter stated the KEYWEP score for disturbed portions of the wetland was 4.45. The undisturbed wetlands consist of tidal mangroves and were by definition "red flag" wetlands. Disturbed wetlands may be developed per LDC Section 118 -10. No development is permitted in undisturbed wetlands where 100% open space is required. On November 24, 2015, the landowners applied for a building permit to construct a single - family detached residential dwelling unit. On December 4, 2015, the County's Planning and Environmental Resources Department (the "Department ") sent the Landowners (through their contractor's agent) a notice that the Department failed the Planning review of building permit application 4 15106233. The notice informed the landowners that the Department's decision may be appealed within 30 calendar days. No appeal was filed to challenge the propriety of the Department's decision. On December 7, 2016, the Department received the agent's application for Beneficial Use Determination (BUD), File 4 2016 -202 (Exhibit A). On December 22, 2016, the Department sent the agent a Notice of Deficiencies (Exhibit B) pursuant to LDC Section 102 -105, after the application was reviewed by staff to determine if the application was complete and included the materials and information listed in LDC Section 102- 105(b). On January 6, 2017, the Department received additional materials and information (Exhibit C) from the agent. On January 27, 2017, the Department notified the agent that the application was determined to be sufficient (Exhibit D). On March 28, 2017, the Department forwarded the BUD application to DOAH for adjudication. After landowner sought to amend their application with a new basis for relief, DOAH relinquished its jurisdiction. File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 4 of 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 On June 12 2017, the landowners submitted an Amended Application for Beneficial Use Determination to the Department (Exhibit E). On June 27, 2017, the Department sent the agent a second Notice of Deficiencies (Exhibit F) pursuant to LDC Section 102 -105. On July 6, 2017, the Department received additional materials and information (Exhibit G) from the agent. On July 14, 2017, the Department notified the agent that the application was determined to be sufficient (Exhibit H). Please note this application was suspended for 60 days, pursuant to BOCC Resolution No. 214 -2017, as a temporary emergency measure after Hurricane Irma made landfall in the Florida Keys on September 10, 2017. V. REVIEW OF APPLICATION & RESPONSE TO APPLICANT'S CLAIMS At the time the Planning review of Building Permit Application # 15106223 was failed, the 2010 Comprehensive Plan and the previous version of the Land Development Code (LDC) were in effect. At the time the BUD application was received, the 2030 Comprehensive Plan had become effective, but the previous version of the LDC was still in effect. Beneficial use determinations are set forth in Chapter 102, Article IV, Division 2 of the Monroe County Land Development Code (LDC) in effect at the time of the BUD application being found complete (Exhibit I). Relief under LDC Chapter 102, Article IV, Division 2 (Beneficial Use Determinations) cannot be established until the landowner has received a final decision on development approval applications from the County, including building permit allocation system applications, appeals, administrative relief pursuant to LDC Section 138 -54, and other available relief, exceptions, or variances, unless the applicant asserts that a land development regulation or comprehensive plan policy, on its face, meets the standards for relief in LDC Section 102 -109. The standard for the granting of beneficial use relief is provided in LDC Section 102 -109, which provides as follows: In furtherance of the purpose and intent of this division, and consistent with Policy 101.18.5 of the comprehensive plan, relief under this division may he 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 he precluded by a cognizable defense, including lack of investment - backed expectations, statute of limitations, laches, or other preclusion of relief. Whether such liability, at the time of application under this division, is likely to he established by a court should he determined based on applicable statutory and case law at the time an application is considered under this division. On November 24, 2015, the landowners applied for a building permit to construct a single - family detached residential dwelling unit. On December 4, 2015, the County's Planning and File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 5 of 39 I Environmental Resources Department (the "Department ") sent the Landowners (through 2 their contractor's agent) a notice that the Department failed the Planning review of building 3 permit application 4 15106233. The notice informed the landowners that the Department's 4 decision may be appealed within 30 calendar days. The landowner filed no appeal. 5 6 Instead, the landowner filed the subject BUD application on December 7, 2016. The specific 7 decision of the County for which the landowners seek relief is the December 4, 2015 failure 8 of the Planning review for building permit application 4 15106233 for a new single - family 9 detached dwelling unit. The Planning review was failed because staff determined the 10 property is not a "lot" as defined in the LDC and therefore did not meet the residential 11 density standard of one (1) dwelling unit per lot in the IS Land Use District. The final 12 decision was based on Sections 130 -157 and 101 -1 of the Land Development Code in effect 13 at the time. The final decision did not cite any specific comprehensive plan policies, but (as 14 the agent noted on the BUD application) did state that the subject property is located within 15 two different future land use map (FLUM) categories—Residential Medium (RM) and 16 Residential Conservation (RC). The FLUM map is adopted as part of the Comprehensive 17 Plan. The proposed development was to be located entirely within the RM FLUM and 18 Improved Subdivision (IS) District portion of the property. The IS District is a corresponding 19 Land Use District within the RM FLUM Category. 20 21 The requested relief according to the BUD application is for "the property [to] be awarded a 22 density allocation for development of one (1) dwelling unit on the property and a building 23 permit issued." The requested relief is explained further by the agent in Attachment 5, titled 24 "Statement Describing LDC, Comprehensive Plan Policy, or Other Final Action of the 25 County Which Applicant Believes Necessitates Relief," of the BUD application. 26 27 In the amended BUD application, the landowner's agent argues that the parcel met the prior 28 definitions of "lot" and was buildable under the prior Land Development Codes as evidenced 29 by the property's designations in the IS Land Use District, the RM FLUM, and the Tier III 30 overlay district. Staff s position as asserted in this memorandum is that the property is not 31 and was not buildable with a new dwelling unit because the parcel was not a duly recorded 32 lot indicated on a plat approved by the County as required in the 1986 LDRs, both before the 33 landowner acquired the property and during the period the landowner owned the property. 34 The subdivision of Tract A did not create lawful lots. Further, the state's denials of the 35 landowner's septic permit applications in 1990 and 1991 failed to make the parcel buildable 36 and demonstrates that the property failed to meet each and every requirement of the County's 37 zoning and subdivision codes, as required by the 1986 LDRs. File 4 2016 -202 Beneficial Use Determination 11/9/2017 Staff Meino to Special Magistrate 475 Brown Drive, Ramrod Key Page 6 of 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Staff finds that the final decision to fail the Planning review of building permit application 4 15106233 was correctly based on the LDC definition of "lot" and allocated density provided in LDC Section 130 -157. Staff finds the LDC section specifically implements, is consistent with, and is in conformity with the provisions of the adopted Comprehensive Plan, in accordance with Sections 163.3194, 163, 3201 and 163.3202, F.S. The Department's final decision was not erroneous and should not he reversed. In accordance with the beneficial use standards in LDC Section 102 -109, the final action of the Department failing the Planning review of building permit application 4 15106233 did not cause a taking of property as outlined in this memorandum. EXPLANATION OF STAFF'S FINAL DECISION The 2030 Comprehensive Plan and the 2010 Comprehensive Plan establish the future land use designation and corresponding density and intensity standards for each future land use category. The Land Use (Zoning) Districts establish the permitted and conditional uses for each district, and the density and intensity standards for each district. The subject property is located within the Residential Medium (RM) Future Land Use Map (FLUM) Category and the Improved Subdivision (IS) Land Use District [ 1 ]. Consistent with the RM FLUM Category, the IS Land Use District has a maximum residential allocated density of one (1) dwelling unit per lot (1 du /lot), pursuant to LDC Section 130 -157. "Buildable lot" is defined in LDC Section 101 -1 as "a duly recorded lot that complies with each and every requirement of the county's zoning and subdivision codes immediately prior to the effective date of the ordinance from which this chapter is derived." "Lot" is defined in LDC Section 101 -1 as "a duly recorded lot as shown on a plat approved by the county." As amended by Ordinance No. 003 -2015, adopted January 21, 2015 by the BOCC and approved by the Department of Economic Opportunity Final Order DEO- 15 -042 (see Exhibit J). "Parcel of land" is defined in LDC Section 101 -1 as "any quantity of land and water capable of being described with such definiteness that its location and boundaries may be established, which is designated by its owner or developer as land to be used or developed as a unit, or which has been used or developed as a unit." "Platted lot" is defined in LDC Section 101 -1 as "a lot that is identified on a plat that was approved by the board of county commissioners and duly recorded." A majority of the property is located within the RM FLUM and IS District. A small portion of the property is located within the RC FLUM and NA District and includes undevelopable red flag wetlands. For purposes of the BUD, only the RM FLUM and IS District where the proposed development was proposed is considered in this memo. File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Memo to Special Magistrate Page 7 of 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 The subject property is described as "Lot 1, being a portion of Tract "A" Ramrod Shores Third Addition, according to the plat thereof, as recorded in Plat Book 6, Page 108 of the Public Records ofMonroe County, Florida..." A review of the Ramrod Shores Third Addition plat (see Exhibit K) confirms that the plat was duly recorded and approved by the Board of County Commissioners on December 19, 1972; however, the plat shows that the property is located within Tract A, which does not meet the definition of "lot." After the plat was originally approved by the County in 1972, Tract A was subsequently divided into six parcels that were never shown as lots or parcels on a plat, re -plat, or amended plat approved by the County and recorded by the Clerk of Court's office. The subject property does not meet the definition of a "lot" and does not meet the residential density requirements of the IS Land Use District in order to allow the proposed development of a dwelling unit. Pursuant to LDC Section 130 -83, the permitted and conditional uses for the IS Land Use District provide the potential for the subject property to be utilized for the development of a park, wastewater system, or a school. The subject parcel could also be used for beekeeping or sold to a neighboring parcel for use as a yard, open space and /or accessory uses. The landowner could propose Future Land Use Map and Land Use (Zoning) District Map amendments to a category that could allow for the construction of a single family dwelling based upon an adopted acreage density standard. As a note, the County's 2030 Comprehensive Plan and Land Development Code provide positive points in the Permit Allocation System (ROGO) for the dedication of vacant parcels, as follows: +4 points for the dedication to Monroe County of one (1) vacant parcel with a minimum of 2, 000 square feet of uplands, designated as Tier III for the retirement of development rights. Each additional vacant parcel that meets the aforementioned requirements will earn points as specified. The subject property could be sold to another party for ROGO points (through the dedication of land category). The subject property could also be sold to the Monroe County Land Authority, the Florida Department of Environmental Protection or another similar agency for the preservation of habitat. Background Information In 1963, Monroe County adopted Resolution 36 -1963 creating the first Rules & Regulations for Filing Plats, which established the minimum standards for subdivision planning and development. Standards included, but were not limited to, the provision of utilities and File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 8 of 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 drainage, access requirements, minimum lot size (6,000 sf) and County review and approval of plats. In 1971, the Florida Legislature adopted statutory requirements for platting (subdividing land). Chapter 71 -339 established the minimum requirements to regulate and control the platting of lands, including but limited to: defining "lot" as includes tract or parcel and means the least fractional part of subdivided lands having limited fixed boundaries, having an assigned number, letter or other name through which it may he identified and that before a plat is offered for recording it shall he approved by the appropriate ,governing bodies in a county and evidence of their approvals shall he placed thereon. In 1972, Monroe County approved the Ramrod Shores Third Addition Plat recorded in Plat Book 6 at Page 108 creating lots 1 through 45 along Lesrohde Road, Mariposa Road and Brown Drive, and creating Tract A to the north and east of Brown Drive. File 4 2016 -202 Beneficial Use Determination 11/9/2017 Staff Meino to Special Magistrate 475 Brown Drive, Ramrod Key Page 9 of 39 Approvea plat overtata on zw.) aerial showing Location of z ract A wtue ovate to the northeast 2 3 4 I 3 I t � p 1 I I I I i I � I I I I j I I I I 3 I I � I I I � ! A_ DST IOU I I I I I I 1 P5 41 too I I NI E N� C s C V¢ c� � I I I I I% 5 3g ro� lJ There are no fixed boundary, numbered, or lettered lots or blocks (or parcels) identified on the recorded plat for Tract A (Plat Book 6 at Page 108). File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 10 of 39 r,� -� gti[t E le I � .1 a a 4 F a '+uo-�a A I iA'$• i M 'ie c I 4 t o a a S v7 ' c u Y'l � � { t & S TRACT A tS I% 5 3g ro� lJ There are no fixed boundary, numbered, or lettered lots or blocks (or parcels) identified on the recorded plat for Tract A (Plat Book 6 at Page 108). File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 10 of 39 I � .1 a a 4 I 4 t o a S v7 ' c u Y'l � � { t I% 5 3g ro� lJ There are no fixed boundary, numbered, or lettered lots or blocks (or parcels) identified on the recorded plat for Tract A (Plat Book 6 at Page 108). File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 10 of 39 I Resolution 36-1963: 2 3 "ECTI 0 id�NVIW PHOCT-A W Hill H I IN(; h, I. ]"rid is rei lot- -.40odixided, n plait qijall he prt�pared. l'It(. pltii 4tiall 1,. ; - h a survevor rekriqlerpd ii the wt4i,e 4if Florida arid ia af-g-ordh- — with fl,i-se the Plat fil. ing law of Ox -Mace of m , f j l 4 : 1", and '0-15 Lawn rf F I or pvt in I A( I s I '1 - 0 1) i d I I III M ( a I 1 4- xpf ,x,T1 dvljiv it urgred that The s u t . * ,N,o , a tetif.aiixi pliji 24, the uf- 1 0 1 ,s1 liw I'ui Idi :kg PkIkii 1.4-riiii ! far r r eview 1 r I he j)t0j)tL1ki!IOIL Of 1 111' filial jklfit, Xs a lurilter aid it) Ike va-- 411 largv i ir'ac I �: wi i.. I 1= n I e , (i ! d ev v I i pvd i it t w o i)t rnq v (- i It, I eTfleh 1 , the I I i r' e(' t 4) T' wi ll r v k i *-k arid gi k (° c i•i k ! ii. 1 1 P approva of pri. pai4ed p li i-a4 ti t' i I wf, o I v su(+ I z t-,, whe reu pia r, tire dvx e ma pt — (-11 w r t f i 11h I P I a t R, olle a I a I I Me. ptats will lo#� re\iewed fol �Iptlol, 11,11der-s binet-s, vti ttw %* 11 as for ovirtei-S, f, attk-mpr will lie tuad v i ii vht k 01' Veri 014- M& lIPI(W I f a( he 1 1 h ( It i shal I rvZollo " "tit il ti ! j: 1 k 4 0 f t fic cl f % ilVtt f t 'i pot; 1 1 1 , Roads mij,d st,j*ePoq, 411,111 pt ti Ad.0iiitrig )arid at inlervals of i tch ""' ] ,.I rnit ulil—t l,1o( im natural of" OtIlPt' 'Jain drniiiaizo rki[WL)s, fiikv- +jjr(j li4ijur-al J'p P q V T�y fi" Y r r•1 (I I . ]arid i To a !'id i 4 i I k It 4 f H I I ha q 9 tar a Public rilad or Al rep t. Mirjimtm sizt!, Atv—Lr-t,� d - . fiflir ii w.dth r ,f. fpf.1 hr t1 r Reg -baok title and hii Firea oil root les than 9 ' mquare feet, ]d oc k ze ''erm i t t ed - k4a x i mum 1 5 1 it f k aim , ti qt mea sur t ,rl J ItOR cot f—tuidi rig ritiotsils "rid q t It ,e rg , S Ila I I he I I orn walla 1 � j mile ii J%pppjrj!Z With ij, I zt 111 w and tiormni Rubdj,!jgjoI, I L i itritim z - -iii 4* e,jjd s4lrept tnlersput iono; JQJ T 0 1' In I inn - flial 1 1 - fweilfv-riv(- ion leer File 4 2016-202 Beneficial Use Determination 11/9/2017 Staff Meino to Special Magistrate 475 Brown Drive, Ramrod Key Page 11 of 39 Ordinance 013-1973: Section 3. A2p l ivability 2 3 Whenever land is subdivided a_pjAtTnust b recorded except that the recording of a plat will not be required 3.1 The Subdivision involved consists only of the ded- ication of a road, highway, Street, alley or easement and the Director of the Building and Zoning Department finds that it is not necessary that a plat be recorded. In lieu of a recording of a plat, the dedication. shall be required by deed and shall be subject to compliance with the submission of a grading, pavin and drainage plan which will m the requirements of these reg- ulations and the posting of a bond. as Tequired under Article III Section 5 of this ordinance, before the acceptance of the dedic- ation by the County Commissioners. 3.2 The land to be subdivided is to be divided into not MOTO than ]: a ce]!; ,i� 'i because of unusual conditions created by rwnersh p or development of adjacent lands or existing improvemeat.s and dedications are substantially in accordance with the requirements of this ordinance, the Director of the Building and Zoning Department determines that waiving of the requirement for platting wvould not conflict with the purpose and intent of this ordinance. In lieu of platting, the Director shall require any dedications, reservations or improvements re- quired in connection with platting tinder this ordinance, including the posting of performance and maintenance bond, as may be nec- essary to carry out the intent and purpose of this ordinance. 4 Ordinance 001 -1973: 5 6 7 S 7, All 'plat- s thO SubdiViSiari 0' land a>' al 1< 401-ly witii the provisions of t�'u COUItv Pla F„lirit Ord�nanco as ado— ed and as amended, a Lot 7rov'ldod in t h J j I on!y nnQ 11 ) b -L C., y D'a Cn 0 a L ° 0 - T- d strict, a elk i7 C r nz i a S"all be 1�ceno(l Z Q 10t Qn which It i l ocate d . NO builKaii-^ n. c t u 1 , o r s b e c --c -, ct cJ o n a pir c e i 0 ar, j ,;hi ch a:11L't a r ra, - road having a, Mininan width of fi fteo,_� f eet. 8 The 1986 Land Development Regulations (adopted Feb. 28, 1986 and approved by DCA July 29, 9 1986) continued to include Plat Approval regulations and created the Improved Subdivision (IS) 10 zoning district. The County also adopted zoning maps (known as the Pattison Maps) for all areas 11 of the unincorporated county which identified this property within the IS zoning district (blue 12 oval below). File 4 2016-202 Beneficial Use Detennination 11/9/2017 Staff Meino to Special Magistrate 475 Brown Drive, Ramrod Key Page 12 of 39 LIMITED 2 3 4 In 1992, a revised series of zoning maps were approved (also known as the Craig Maps) for all 5 areas of the unincorporated county. These maps continued to identify the subject property and 6 Tract A being located within the IS zoning district (blue ovals below). r File 4 2016 -202 Beneficial Use Detennination 11/9/2017 Staff Meino to Special Magistrate 475 Brown Drive, Ramrod Key Page 13 of 39 Y � - 1 A 'S� iss NA F. i y f g � lS NA _ �.i� 1 NA i i i o � Q F f � " � � '� jr `w,� f NA ', NA ' i t N A, SR f. ' muNi COUNTY. FLORIDA, LANG ' YAL DIeFR1DA WF File 4 2016 -202 Beneficial Use Determination 11/9/2017 Staff Meino to Special Magistrate 475 Brown Drive, Ramrod Key Page 14 of 39 1 2 3 The 1986 Land Development Regulations (LDRs) included that a plat approval was required for: 4 (1) The division of land into three or more parcels; 5 (2) The division of land into two or more parcels where the land involved in the division was 6 previously divided without plat approval within the prior two years; or 7 (3) The division of land into two parcels where the disclosure statement required under 8 subsection (f) of this section is not attached to the conveyance. File 4 2016 -202 Beneficial Use Determination 11/9/2017 Staff Meino to Special Magistrate 475 Brown Drive, Ramrod Key Page 15 of 39 AA p, a �.A 1 2 3 The 1986 Land Development Regulations (LDRs) included that a plat approval was required for: 4 (1) The division of land into three or more parcels; 5 (2) The division of land into two or more parcels where the land involved in the division was 6 previously divided without plat approval within the prior two years; or 7 (3) The division of land into two parcels where the disclosure statement required under 8 subsection (f) of this section is not attached to the conveyance. File 4 2016 -202 Beneficial Use Determination 11/9/2017 Staff Meino to Special Magistrate 475 Brown Drive, Ramrod Key Page 15 of 39 F Zia j;;# See. 5 -401* Plat Approva a nd, Recording Regul Ao Except rw■ and section, plat approval shall be required for. 1. the division of lend into three or mare parcels- or . the division of land into two or more parcels where the land involved In the division was previously divided without plat approval within the prior two years; or . the division ot land into two parcels where the disclosure statement required under subsection F hereof is not attached to the conveyance. C. No plat approval is required if the subdivision involved File 4 2016 -202 Beneficial Use Detennination 11/9/2017 Staff Meino to Special Magistrate 475 Brown Drive, Ramrod Key Page 16 of 39 D. No plat of any subdivision shall be entitled to be re- corded in the office of the Clerk of the Circuit Court until it shall have been approved by the Board of County Comissioners in the manner prescribed herein and certi- fied by the Clerk. E If a plat has been previously approved and recorde technical or minor changes to the plat may be approv by the Director of Planning. All other changes shall considered In accordance with the provisions of th Division. ] F. The conveyance of land which involves the division of the land into two parcels where plat approval is not obtained pursuant to this Division, shall include the following disclosure statement*. | 2 3 See. 5404. Final Plat Approval. File #20|6'202Bcncficial Use Ddconbmhon 475 Brown Drive, DuunndKey ||/9/20|7 Staff McuxoW Special Magistrate Page 17 of 39 1 2 3 4 5 6 7 Sec4 5-414. Amendment of it •d An a-mendment of a reeardled final plat or portion thereof approval shall be aecompl ished 'in the same manner as for The 1986 Land Development Regulations also established the purpose of the Improved Subdivision (zoning) District. Pur pose of the Improved Subd ivision 10 Tract A of Ramrod Shores Third Addition Plat was recorded in Plat Book 6 at Page 108 of the 11 Public Records of Monroe County, Florida. There are no fixed boundary, numbered, or lettered 12 lots or blocks (or parcels) identified on the recorded plat for Tract A. No Plat or Re -plat or 13 Amended Plat has been identified that was approved by the County for the additional subdivision 14 of Tract A into six parcels. 15 16 Additionally, the disclosure statement required under subsection (f) of Section 5 -401 of the 1986 17 LDRs is not included in the conveyance deeds for the subject property. File 4 2016 -202 Beneficial Use Determination 11/9/2017 Staff Meino to Special Magistrate 475 Brown Drive, Ramrod Key Page 18 of 39 | 2 3 the 1980 L[)Ra created the following density standards: See 9-302. Maximun Residential Dens i ty and District Qpen AtUr-W'M NET LAND USE, UENS 1'7 TENS Irf UMAN II&SIEENTI-AL 12.0 .2 SLILTUM BESIEEN 1.0 10.0 .5 Mangroves 0 0 1.0 Frestmater Wetlands .2 0 1.0 Transitional Habitats .3 5.0 .85 Scarified/Disturbed .5 5.0 .3 Beach/Seryn .5 5.0 .9 Pinelands .5 5.0 .8 ITANO NORD -7 1VISICK See Section 9-303 03MEYCIAL FISHING 3.0 12.0 .2 CEMNATIM RESCFG 1.0 1810 .2 LI(W INDUSTRY 6.0 12.0 D DIMICT 6.0 12.0 .2 File #20|6'202Bcncficial Use Ddconbmhon 475 Brown Drive, DuunndKey ||/9/20|7 Staff McuxoW Special Magistrate Page 19 of 39 See* 9 oved Subdivision and Ckwmerelal Fisht"I ' D N otwithstanding density limitations of s r 302, the owner of tr Commercial Fishing Village District shall be entitled to develop a single family detached dwelling on i A. the l ot h as su l and area and dimensions f: meet installati the requirements of Chapter 1OD-6 Fla, Admin. Code for the of o n - s i t e w the lot Is not owned i n ownership with any adja- cent l C. the o t was a lawf ul bui Ida lot eligib f C building permit o n ti and 11 D. the development of detached c the lot, this P lan. 1 2 3 4 5 6 7 8 9 10 11 12 13 L-1 0. LOT means a parcel of land occupied or intended for occupanc # t o g et h er i y ards , op en spaces, bu i p arking BUILDABLE LM mea,ns n duly *, with -- i + �; �R# and subdivision codes immediately prior to the effect :ve this, Plan. The six parcels that have been subdivided from Tract A do not meet the purpose of the IS district (1986 LDR Section 9 -113): "lots in subdivisions that were lawfully established and improved prior to the adoption of these regulations..." The parcels were not created through an approved and recorded plat. Resolution 36 -1963 also stated "when land is to be subdivided, a plat shall be prepared." The 1973 Plat Rules and Regulations required that "whenever land is subdivided a plat must be File 4 2016 -202 Beneficial Use Deterinination 11/9/2017 Staff Meino to Special Magistrate 475 Brown Drive, Ramrod Key Page 20 of 39 I recorded" (except when only dedicating roads or the land to be subdivided is to be divided into 2 not more than 2 parcels of less than 1 acre); and that all requirements of the Zoning ordinance 3 shall be met." Additionally, the 1986 zoning regulations also included that a lot shall have 4 "sufficient land area and dimensions... for the installation on on -site wastewater treatment 5 systems." The applicant's BUD application submission (Time -line of Development Efforts) 6 identifies that the previous attempts to develop the property in 1990 and 1991 failed twice due to 7 the Florida Department of Health and Rehabilitative Services denials of an application for on -site 8 sewage disposal system for a single family residence due to "insufficient fill area and setbacks 9 from salt march/buttonwood habitats." 10 11 l e r E' 1 On October 24, 1990, landowner submitted applications to the Florida Department it Environmental Regulation (DER.) and the U.S. Anny Corps of Engineers (ALOE) for fill permits associated with a single family residence. On November 7, 1990, application submitted to Florida Department of Health and Rehabilitative Services (HRS) for on -site sewage disposal system for a single family residence,. On December 5, 1990, HRS denied the application because of insufficient fill area and setbacks from salt marsh/buttonwood habitat. On February 6, 1991, the ALOE issued a letter stating it was "in a position to issue your Department of the Army permit" but could not issue the permit until DER issued its permit. The letter ftirther provided that "upon receipt of the State approval the Department of the Army permit will be issued." ALOE permit # 901PK -04567 O February 19, 1991, DER issued permit # 441883615 for fill associated with the single family residence. On March 14, 1991, the ACOE issued permit # 901P - 04567. On May 15, 1991, an application was submitted to HRS for an on -site aerobic septic system. On June 7, 1991, the HRS Variance Review Beard recommended "disapproval" of the application, albeit on erroneous grounds of insufficient lot size and an "illegal. canal." File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Rainrod Key 11/9/2017 Staff Meino to Special Magistrate Page 21 of 39 1 2 3 4 5 6 7 8 9 10 As such, the property was not a "buildable lot" as it did not comply "each and every requirement of the County's zoning and subdivision codes. "Also, none of the prior owners of the subject property applied for a Vested Rights Determination or a Beneficial Use Determination or challenged the adoption of the 1986 Land Development Regulations. [ History of the Property Conveyance December 19, 1972 — The plat of Ramrod Shores Third Addition was approved by the BOCC. The landowner was James M. Brown, as Trustee. ldust "'e cw, ffq +yFkko.. e- 11 12 " I 2 There was a BUD application in 2003 on another parcel within Tract A of Ramrod Shores Third Addition. The special magistrate reconnnended relief for the landowner in the form of the County buying the property. This parcel, RE 4 00209971- 004604 and also known as "Lot 5 ", is now owned by the County. File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Memo to Special Magistrate Page 22 of 39 4 S I I .... ..... i I Fv. L 0:-I (ce" u IF w, y 9 vaM` s3` n' :. 2 There was a BUD application in 2003 on another parcel within Tract A of Ramrod Shores Third Addition. The special magistrate reconnnended relief for the landowner in the form of the County buying the property. This parcel, RE 4 00209971- 004604 and also known as "Lot 5 ", is now owned by the County. File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Memo to Special Magistrate Page 22 of 39 2 3 4 5 I April 10, 1975 — Warranty deed conveying the subject property from James M. Brown, Individually and as Trustee, to A. Sayward Wing, Jr., as Trustee, was recorded: File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 23 of 39 SCALE - I'm 0' u -Y 7r at term e °kc trh an4 iee -I! Da�crl t °on� shoUn 1 wAz 11',�t .Arvd unlicr my dia "es::t'ign ar4 th.AT 1 -11me Are tr A nd Correct COL 1hd ejs% of my knowledge And 1 "Clie.: anA 'iurtaaer. the "Ke'tea end bounds" shown hereon are -ba ed on the plat. Of " s tud :shores Third Additio '. a; recap d in Flat Book C Page lot of the rubz is a or a o ar'lser �uarra� AL u ro mans; 1 -d -nd Surveyor Plori Certificate Nor. 1 TO S uRm NOT WILM L LENS FV -" r-r ;° N ? S 4 r�, J AN T File 4 2016 -202 Beneficial Use Determination 11/9/2017 Staff Meino to Special Magistrate 475 Brown Drive, Ramrod Key Page 24 of 39 1 2 3 4 5 0 March 16, 1976 — Warranty Deed conveying the subject property from A. Sayward Wing, Jr., Trustee to James M. Brown was recorded: File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 25 of 39 I File 4 2016 -202 Beneficial Use Determination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meimo to Special Magistrate Page 26 of 39 ° RCC 47 F 0.k 9m. }' e r ° PLOT PLA S16L.f I= 10'0 c �ve �., 4 €eS ' k Itt a W r l .I >Z7 Z' t Y f• * °'6 17ry W t {d p'k I rtz m c i L „ a , aJ I at f`l Ylai; L If { vfl It f I File 4 2016 -202 Beneficial Use Determination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meimo to Special Magistrate Page 26 of 39 2 3 4 5 R September 12, 1988 - Warranty Deed conveying a portion of "Lot F from James M. Brown to Gregg Lombardi was recorded. This is now RE 4 00209971- 004605. ,. 1 0A DESCRIPTIONS AS FURNISHED M. MOWN LOT I Being a portion of Tract "A", Ramrod Shores Third Addition, according to the plat thereof as recorded in Plat Book 6, Page 108 of the Public Records of Tslonroe County, Florida being more particularly described as followso Commence at the intersection of the centerline of Brown Drive and the center- line of Mariposa Road as shown on said plat of "Ramrod Shores Third Addition" thence South 77 degrees, 22 minutes, 45 seconds West (1Bearinga based on an assumed meridian) along said centerline of Brown Drive for 4b4.49 feeto thence North along said centerline of Brown Drive and its Northerly extens- ion for 595.00 feet more or less to an intersection with the platted shore- line of Niles Bay, as shown on said Plat of Ramrod Shores Third Addition said intersection being the POINT OF'B EGINNINO of the hereinafter described Lot 11 thence South along said Northerly extension of the centerline of Brown Drive 00 feet more or I thence East for thence — °16fth'J6 t6it t e snorelins or say, thence Horth'69 degrees 28 linutee 12 seconds West, for ji fee back to the Point of Beginnins, File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 27 of 39 556546 91065 RR 15 6 4 JOHN A. PET&CHE, JR. A• C'ac nM er 21,�2982 PIA.T CP SUM&Y fV= dAms m. 21Acum a_ 'IF TORS " & 2, A PART GP '2RACT "A'" OF RAMROD SHORES THIND ' A71VITIGN RECORDED IN PTAT ROCK &, PAaIE .uo er 8it)!lRag s ! 4, �¢ etrm tdTY 2ULi;.tC iIF C`:1RU:s C �Mwy hy. P` I ss 4 . U11 . 1 �` s_ A 06 ! # Ice 6` EC A P� LOT Z. af NL7ESa „ d+ tsRreL Rry ralati4on¢ M.A 'tM o' am .n tat i. kmhad by 0 e. C. Surrey• Mean High. Wat¢r £'3avata¢. is C.rg¢ of Army F41,rim va Aatim � 9. a dk.l4FPlfd tA.ktu e p xSlatlV@ B6 Mmh SA. hotel At R. dGo a.e "A' •_ lneisatou 40u opiku uurNey —trni sound or eat. 't lhdl -tea 3/4" Steel Pipe manunent.s A. t.. R w 3 t°.GRUY C'FRrIPY tl.at the a. ttaehed plat i, a tro a d aorr.ot r.praa tati n of o up"wy candvXt* 4 ARQU Sy'lY' x' aF mn -bar 7. R lea sn a Are t•.fas vc to a. rasa walla mwriaian and are i .n ar thm purp¢so- es deliFteath'ng angles only 17d RCanGem a,� tlexa C�.c re ar �� fn tenet and daeimal. part¢ tha -m.r. .11 ,Union I eo-r Ity to mA aorro". 414 r J I• ® FE'7 HR .P .B F Pra,Teaai.n 1 @ngi ncc Pfe. 774 rn sFy ---� r•"' { ..'. Fia. Amy I., Gu]^x.effi r 2914 r i i w to File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 27 of 39 June 14, 1990 — Certificate of Title conveying the subject property to Henry Olynger, Jr. was recorded: 64307 ;1o_ 131 frr1 LOTS 1 4 2, as Part of Tract °* A RAMROD SHORES THIRD ADOTTla]M recotdod In Plat book 6, page 100 Monroe County Public Re0ords. Gat 13 ael a portion of Tract 5a as iafiMit€�il 0Ht}�f;5 TEiI C; d4Bf3iT°gf1Na according to the P18t thereof, as recorded in Plat: Back 6 p als lot of the public Secords Of Montoe Countyr rloridaa b#ng mare particularly doocribed no followaaa, Commence at the interaection of the centerline of ;gown D and the centstlinO of Mnriiaoasaa Road all Shown on 77 € dugreen, 22 seconds Sout (beatings based an an assumed mearidlieanl alone said centerline of Browse Derives for 464.49 fret, thence North along said contcrline of Brown Inive and Stn Northerly extension for 595.00 feete mere or looa to an Intersection with the Platted shoreline of Niles Day, as shown on aaiird i of Ramrod Shasres Third Addition, aaa €c3 €rataraactioar being the POINT' C7 3ECiNNING Of the heroinnfter described t.dat Aa Thence Staasth along said' NortherIV cxtenn €eras of toles contorli>nda of t1rown Drive 55 faucet more or luau; thence ;:sort for fr (F.g foot; thence South for 25 feet to as traeagarak €nl intersection with a eirculnc ealcaaa a;aracaaara to the nouthoant, thancia southeasterly along than arc of said curve ianving £cac its elements as radius of 25.00 foot aced a central angle of 90 degrosrar 00 min uton, OB aateandae for 49.27 dear to than point of tangent" said irod at point of tangonc�y being 25.06 feet asmast Of' as ma thsraca South tight angles to said contorl.ino of nrown privoi along a line 25 .00 fOPt Fast of asn maaaasaared at right angles and pa to tho no t dascritred contorli"O for 255.00 foot; thence North 43 dogreesar 37 minute 32 seconds 'Sash for 356.90 foot more or lean to run intsar ®aaetian with Bait platted shoreline of Niles Baird thence moa,nder a long said plaattel aahorclino North 69 degr000r 20 minutes, 12 seconds Nast for 289.69 forest more or lonaa to the point o f Doginning. afaareasaa €c faro u or�itaau of i,ot Tt along sa !t, ass ttaa £ fi g laaaain i o ai r� r #iRtS 17171 f e r- a3 per of TKane a Florid accordiaa to th .let thereof a ass recacdaCaaaanty, �oeia r dascr as cribed as f call owes Co and t et Page 9Q16 a£ t'hrs public Reoasrda f Monr re iaeing ,aru particulaa"ly red ass good ass gbown on 081 men, 22ominutoo, the intoraaactiaaa of the center of Basest i5riae of a a„a3aatasrlirae of Matip thanes smaath 77 aalaarig S h o res Third ndditlaa�af fast€ thence far #* asses ;nda West (bearings basses *d rasa naa aassaa�ad nuetidiasg sold ccaaatca l ices of Brown iari+ra 0 . leoa� said @ to o intstserctivn tfaast€a il crQaats�rl #area crf isrow, tiriuc; and its norther 9� sass mha s hown an exton,aaioas Saar a45.SR el i m an #shetaaee~tiesn with the Vint"d aahoreline aaf "i hays deasaribed Third of the, taa r t@tu plat of o poitl StactB inns �cid6t gear tossed the being that Fdalaat o f Beginning caomocorOr r,ot i# thoncar Soaath a +lesrs fuser asaoco ar laser conterliale, of rsrown Drive 55 for ,0.40 feet; thence k4Qvtdbr , a, bsr,e20trainut�os�,e12locscOnds Hiles 13a3+r thence North 69 i inning. sate for 46 f back to the point rr o AND p Ramr Pack -rho aaPtivat¢ " Of 544. StaercOta �a ' 4 , at: P*qe 1 11f 5"f rJoTidar . as my rec ublic� Ka Recotdac+eak 4r of th Monroe Caxs ;arty T File 4 2016 -202 Beneficial Use Detennination 11/9/2017 Staff Meino to Special Magistrate 475 Brown Drive, Ramrod Key Page 28 of 39 2 3 11 February 26, 1992 — Quitclaim Deed conveying the subject property from Henry Olynger, Jr., Trustee to Patricia J. Edwards was recorded: File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 29 of 39 2 3 November 12, 2015 — Warranty Deed conveying a 20% interest in the subject property from Patricia J. Edwards to Henry A. Olynger, Jr. was recorded: Lot 1: Being a portion of Tract "A", RAMROD SHORES THIRD ADDITION, according to the Plat thereof, as recorded in Plat Book 6, page 108 of the Public Records of Monroe County, Florida being more particularly described as follows Commence at the intersection of the centerline of Brown Drive and the centerline of Mariposa Road as shown on said plat of Ramrod Shored Third Addition., thence South 77 degrees, 22 minutes, 45 seconds West (bearings based on an assumed meridian) along said centerline of Brown Drive for 464.49 feet; thence North along said centerline of Brown Drive and its Northerly extension for 595.00 feet more or less to an intersection with the Platted Shoreline of Niles Bay, as shown on said Plat of Ramrod Shores Third Addition, said intersection being the POINT OF BEGINNING of the hereinafter described Lot 1: Thence South along said Northerly extension of the centerline of Brown Drive 55 more or less; thence East for 50.00 feet; thence South for 25 feet to a tangential intersection with a circular curve concave to the southeast, thence southeasterly along the are of said curve having for its elements a radius of 25,00 feet a central angle of 90 degrees, 00 minutes, 00 seconds for 49.27 feet to the point of tangency said point of tangency being 25.00 feet east of, as measured at right angles to said centerline of Brown Drive, thence South along a line 25,00 feet East of as measured at right angles and parallel to the last described centerline for 255.00 feet; thence North 43 degrees, 37 minutes, 32 seconds East for 356.98 feet more or less to an intersection with said platted shoreline of Niles Bay; thence meander along said platted shoreline North 69 degrees 28 minutes 12 seconds West for 289.69 feet more or less to the Point of Beginning. 11 5 6 "LESS" the following portion of "Lot I": Being a portion of Tract "A" RAMROD SHORES THIRD ADDITION, according to the plat thereof, as recorded in Plat Book 6, Page 108 of the Public Records of Monroe County, Florida being more particularly described as follows: COMMENCE at the intersection of the centerline of Brown Drive and the centerline of Mariposa Road as shown on said plat of Ramrod Shores Third Addition, thence South 77 degrees, 22 minutes, 45 seconds West (bearings based on an assumed meridian) along said centerline of Brown Drive for 464.49 feet; thence North along said centerline of Brown Drive and its Northerly extension for 595.00 feet more or less to an intersection with the platted shoreline of Niles Bay, as shown on said Plat of Ramrod Shores Third Addition, said intersection being the POINT OF BEGINNING of the hereinafter described Lot 1; "Thence South along said Northerly extension of the centerline of Brown Drive 55 feet more or less; thence East for 50,00 feet; thence North 36 feet to the shoreline of Niles Bay, thence North 69 degrees, 28 minutes, 12 seconds West, for 66 feet back to the Point of Beginning. File 4 2016-202 Beneficial Use Determination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 30 of 39 1 2 Current Monroe County Property Appraiser description of the property: Ownership DetaHsl MaIlling Addlrem OLYN ER HENRY A JR 52TO E 600 S GAS CITY, IN 5533.9551 Illtaga3 wasp: IOOH Affordable Houelng: No Section - Township. " Mange: PTopnaiy LocatlorD 475 BROWN DR RA AROD KEY' Subdi0slon: RAMROD SHORES 3RD Aft Legal Descillptlon: RAMROD SHORES THpRD ADDFJON RAMROD ROD HEY PE36 -108 PT TRACT A (PT L T 1 ) ORSS J7 OR6474V OR1134A 7481,° UT l'76t1202- 53585 0147769- 907101 3 4 Public.net" Monroe County, FL Report Summary Parcel ID Account# Millage Group Location Address Legal Description Neighborhood Property Class Subdivision Sec/TwP/Rng Affordable Housing Owner "I( -V"< 5278 E 600 GAS CITY IN 46933 -9551 P rUF App,,-,-, (305)292-3420 13051292 -3420 jc- Cor 5 6 File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key Al * m 00209971- 004600 1273732 100H 475 BROWN DR, RAMROD KEY RAMROD SHORES THI RD ADDITION RAMROD KEY P96 -108 PTTRACT A (PT LOT 1) OR609 -897 OR647 -597 OR1134- 1748/5007T OR1202- 533/35 OR2769 907/08 ;Notl N Ir lir.usei io(vrcen") 708 NON AGRICULTURE (9900) RAMRODSHORES 3RDADD 29/66/29 No 11/9/2017 Staff Meino to Special Magistrate Page 31 of 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 VI. RECOMMENDATION The landowner requests relief, pursuant to LDC Section 102- 110(b)(2), in the form of "the property be awarded a density allocation for development of one (1) dwelling unit on the property and a building permit issued." Although the propriety of the Department's 2015 denial of building permit is not relevant to the standard for BUD relief, it is the Department's position that the subject parcel has been reviewed correctly according to the Comprehensive Plan, Land Development Regulations, and some of these policies /regulations were already in effect in 1986 prior to the landowners' purchase of the property in 1990. The decision by the Planning Department /Planning Director was based on the criteria provided in the 2030 Comprehensive Plan, 2010 Comprehensive Plan, the current Land Development Code and the findings of fact summarized in this staff report. • In 1972, the subject property was platted as a "Tract A;" • Since 1975 or 1976, the subject property was conveyed as a portion of "Tract A "; • No Plat or Re -plat or Amended Plat has been identified which was approved by the County subdividing Tract A into six parcels, including the subject property; • The 1986 Land Development Regulations took effect on September 15, 1986; • The six parcels that have been subdivided from Tract A do not appear to meet the purpose of the IS district: "lots in subdivisions that were lawfully established and improved prior to the adoption of this chapter..." • The parcels were not created through an approved and recorded plat (plats have been required since 1963 when land is to be subdivided); • The subject property was not a "buildable lot" as it did not comply "each and every requirement of the County's zoning and subdivision codes immediately prior to the effective date of the 1986 LDRs;" • The disclosure statement required under 1986 LDR Section 5- 401(f) [at the time of the final decision, the disclosure statement was required under LDC Section 110- 96(f)] is not included in the conveyance deeds for the subject property; • No prior owner of the subject property ever applied for a Vested Rights Determination or a Beneficial Use Determination or challenged the adoption of the 1986 Land Development Regulations; • The subject property continues to not meet the definition of "lot" in the current Land Development Code and does not meet the residential density requirements of the IS Land Use District in order to allow the proposed development of a dwelling unit; and • The property owner did not appeal the December 4, 2015, the County's Planning and Environmental Resources Department's notice that the Department failed the Planning review of building permit application 4 15106233 to construct a single - family detached residential dwelling unit. The notice informed the landowners that the Department's decision may be appealed within 30 calendar days. File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 32 of 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 The standard for relief is whether the landowner can establish that there has been a taking of the subject property. There are two types of takings: (1) "categorical" (also known as "facial" or "Lucas ") takings and (2) "as- applied" takings. The landowner alleges that it has suffered both an "as- applied" and "Lucas- type" taking. Under the caselaw, it is not possible for a landowner to simultaneously suffer these two different types of taking. It is therefore assumed that landowner intended to argue the theories of taking in the alternative. Regardless, there can be no viable claim under either theory. No Categorical or Facial Taking "A facial taking, also known as a per se or categorical taking, occurs when the mere enactment of a regulation precludes all development of the property, and deprives the property owner of all reasonable economic use of the property." Collins v. Monroe County, 999 So.2d 709 (Fla. 3 rd DCA 2008). In this case, the enactment of Ordinance 003 -2015, which revised the definition of "lot," did not preclude all development of the property. The property can be developed with other uses. Moreover, the landowner's own appraisal demonstrates that that the property retains a value of at least $13,500. "Anything less than a complete elimination of economically beneficial use or value of the land is not a facial taking." Id. The County would also have a statute of limitations defense if landowners attempted to establish a categorical or facial taking based on the adoption of the 1986 Land Development Regulations or 2010 Comprehensive Plan. This is because the 1986 Land Development Regulations were adopted on February 28, 1986 and became effective on September 15, 1986; the 2010 Comprehensive Plan was adopted in on April 15, 1993 and became effective and was amended by the Department of Community Affairs Rule 9J- 14.022 (January 4, 1996) and Florida Administrative Rule 28- 20.100 (January 2, 1996). Any categorical or facial taking claim based on the 1986 Land Development Regulations or Comprehensive Plan would therefore be barred by the four (4) year statute of limitations. No "As Applied" Taking The Department also disagrees that the landowners can establish that there has been an "as- applied" taking of the subject property. "In an as- applied claim, the landowner challenges the regulation in the context of a concrete controversy specifically regarding the impact of the regulation on a particular parcel of property." Id. "The standard of proof for an as- applied taking is there has been a substantial deprivation of economic use or reasonable investment - backed expectations." Id. (citing Penn Central Transp. v. City of New York, 438 U.S. 104 (1978)). Reasonable Investment - Backed Expectations The landowners are unable to show that the 2015 building permit denial frustrated their demonstrated investment - backed expectations. The landowners acquired the property in 1990, and immediately ran into lot size problems. As stated in their application: File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 33 of 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 On May 15, 1991, an application was submitted to HRS for an on- site aerobic septic system. On June 7, 1991, the HRS Variance Review Board recommended "disapproval" of the septic system application, albeit on erroneous grounds of insufficient lot size and an "illegal canal." The insufficient lot size related to the inability to install a traditional septic drain field which met HRS setback requirements. A bore- hole injection well would have satisified HRS setback requirements, but the landowners did not pursue that option at the time. The landowners in fact pursued nothing with respect to the development of the lot until they sought a land survey in 2014. If a landowner lacks reasonable investment - backed expectations, this alone can defeat a regulatory taking claim, regardless of the economic impact of the regulation. Good v. U.S., 39 Fed. Cl. 81, 114 (1997) ( "Consideration of expectations is central to resolution of a regulatory takings claim .... The lack of a reasonable investment - backed expectation is determinative of a taking claim. "); Good v. U.S., 189 F. 3d 1355, 1360 (Fed. Cir. 1999) ( "Because we find the expectations factor dispositive, we will not further discuss the character of the government action or the economic impact of the regulations. "); Fla. Dept. of Envtl. Prot. v. Burgess, 772 So. 2d 540, 544 (Fla. 1 st DCA 2000) (affirming judgment based on Appellee's failure to demonstrate that he had reasonable, distinct, investment - backed expectations without any discussion of property values). The landowners fail the reasonable investment - backed expectation prong because they bought the property in 1990 and delayed seeking development approvals for a new single - family residence with Monroe County until 2015. In Collins, the Third District affirmed the finding that Monroe County was not liable for a regulatory taking, stating in pertinent part: While the Landowners own properties on distinct areas of the Florida Keys, there appears to be one underlying commonality among them: with the exception of Mr. Davis, the Landowners did not take meaningful steps toward the development of their respective properties, or seek building permits, during their sometimes decades -long possession of their properties. While the Landowners appear to rely heavily on the BUDs and BOCC resolutions, which found that they had been deprived of all economic use of their properties, it would have been difficult for the trial court to find that the Landowners had, in fact, been deprived of all economic use of their land where building permits were issued to the Collins and Magrinis, even after the BUDs and BOCC resolutions. Furthermore, as we noted in Collins I, "Monroe County was designated an area of critical state concern in 1979, but the first land use regulations were not enacted until 1986. If the File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 34 of 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Landowners did not start development prior to the enactment of these land regulations, they acted at their own peril in relying on the absence of zoning ordinances." Collins I, 999 So.2d at 718 n. 16 (quoting Monroe Cnty. v. Ambrose, 866 So.2d 707, 711 (Fla. 3d DCA 2003) ( "It would be unconscionable to allow the Landowners to ignore evolving and existing land use regulations under circumstances when they have not taken any steps in furtherance of developing their land. ")). The property owner in Galleon Bay serves as a suitable contrast to the Landowners in the instant case. In Galleon Bay, the property owner, over the course of several decades, proceeded with numerous efforts to improve its land including, but not limited to, having its subdivision platted, having the zoning district changed, extensively negotiating with the County, and revising its plat. Galleon Bay, 105 So.3d at 555 -61. Here, there was a noticeable lack of meaningful efforts by the Landowners to explore the possible development options where, under the specific facts of this case, they became aware that building permits could be made available to them despite the BUDs and BOCC resolutions. 118 So.3d 872. Economic Impact It is well - settled that the economic impact prong of Penn Central requires evidence "on the change in fair market value of the subject property caused by the regulatory imposition." Leon County v. Gluesenkamp, 873 So. 2d 460, 467 (Fla. 1st DCA 2004) ( "In other words, the court must compare the value that has been taken from the property with the value that remains in the property. "). See also Forest Properties v. U.S., 177 F. 3d 1360 (Fed. Cir. 1999) ( "The economic impact of the regulation upon the claimant is measured by the change, if any, in the fair market value caused by the regulatory imposition. ") In determining whether there has been an as- applied regulatory taking of the subject property, a court would consider whether the subject property is suited for other allowable uses. There are other allowable uses of the subject property. • There are three vacant, privately owned parcels, including 475 Brown Drive (the subject property), within Tract A which this decision impacts. • The subject parcel could also be used for beekeeping or sold to a neighboring parcel for use as a yard, open space and /or accessory uses. • Pursuant to Section 130 -83, the permitted and conditional uses for the IS Land Use District provides the potential for the subject property to be utilized for the development of a park, wastewater system or a school. • The landowner could propose Future Land Use Map and Land Use (Zoning) District Map amendments to a category that could allow for the construction of a single family dwelling based upon an adopted acreage density standard. File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 35 of 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 • The subject property could be sold to another party for ROGO points (through the dedication of land category). The County's 2030 Comprehensive Plan and Land Development Code provide positive points in the Permit Allocation System (ROGO) for the dedication of vacant parcels, as follows: +4 points for the dedication to Monroe County of one (1) vacant parcel with a minimum of 2, 000 square feet of uplands, designated as Tier III for the retirement of development rights. Each additional vacant parcel that meets the aforementioned requirements will earn points as specified. • The subject property could also be sold to the Monroe County Land Authority, the Florida Department of Environmental Protection or another similar agency for the preservation of habitat. TDR and ROGO Lot Use Can Defeat a Takings Claim As noted above, the subject property may be put to a use other than the Applicant's desired use of developing the property with a single - family home. The economic impact prong of Penn Central requires examination of whether residual value remains in the property despite application of the complained of regulation, and this value may be derived from uses other than the property's highest and best use (such as selling the subject lots as "ROGO lots "). Pace Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023, 1031 (3d Cir. 1987) ( "The Supreme Court has made it clear that general land use regulation may deprive an owner of the best use or uses of his property without compensation. "); Corn v. City of Lauderdale Lakes, 95 F.3d 1066, 1072 -73 (11" Cir. 1996) ( "The standard is not whether the landowner has been denied those uses to which he wants to put his land; it is whether the landowner has been denied all or substantially all economically viable use of his land. "). The landowner incorrectly states that TDR and ROGO lot use do not constitute an economic use. In making a determination of whether the property has been taken, a court would consider the property's TDR value. See Beyer v. City of Marathon, 197 So.3d 563 (Fla. 3ra DCA 2013). ( "The City assigned the Beyers sixteen points under its Residential Rate of Growth Ordinance, having a value of $150,000. The award of ROGO points, coupled with the current recreational uses allowed on the property, reasonably meets the Beyers' economic expectations under these facts. Thus, under an "as applied" takings analysis, the Beyers were not deprived of all economically beneficial use of the property. "); Penn Central Transp. v. New York City, 438 U.S. 104, 132 (1978) ( "While these [transferable] rights may well not have constituted "just compensation" if a "taking" had occurred, the rights nevertheless undoubtedly mitigate whatever financial burdens the law has imposed on appellants and, for that reason, are to be taken into account in considering the impact of regulation. "); Glisson v. Alachua County, 558 So. 2d 1030 (Fla. 1st DCA 1990) (TDR program a factor in dismissing takings claim against wetlands regulation). Due Process Claim The landowner appears to be confusing due process jurisprudence with taking jurisprudence. They argue, for example, that the definition of "lot" constitutes a zoning restriction that bears no substantial relationship to public health, morals, safety and welfare. In Lingle v. Chevron File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 36 of 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 U.S.A. Inc., 544 U.S. 528, 534, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005), the United States Supreme Court unanimously ruled that the test of whether an action does "substantially advance a legitimate state interest" has no place in the regulatory taking analysis. The use of this test, according to the Lingle court, improperly confuses due process jurisprudence with takings jurisprudence. In Tampa- Hillshorough County Expressway Authority v. A.G. W. S. Corp., 640 So.2d 54 (Fla. 1994), the Supreme Court explained the difference as follows: The fifth amendment contains two discrete protections: "No person shall ... be deprived of ... property, without due process of law; nor shall private property be taken for public use, without just compensation." U.S. Const. amend. V . The first of these is commonly called the "police power;" the second is the power of eminent domain. Patrick Wiseman, When the End Justifies the Means: Understanding Takings Jurisprudence In a Legal System With Integrity, 63 St. John's L.Rev. 433, 437 (1988)... . Thus, it is evident that while both constitutional theories involve "takings" and "police power," the analysis under due process is different from the analysis under just compensation. Regulations found by the courts to be invalid because they deprive landowners of substantially all use of their property without compensation are not ordinarily struck down as unconstitutional. The government is forced to choose between paying just compensation to keep the regulation in effect or removing the regulation. In situations where state action is declared an improper exercise of police power under due process, the regulation is simply declared unconstitutional. Therefore, a land use regulation can be held facially unconstitutional without a finding that there was an uncompensated taking. The fact that we chose to strike down the statute in Joint Ventures [v. Department of Transportation, 563 So.2d 622 (Fla. 1990)] clearly demonstrates that our decision was grounded upon due process considerations. Had we intended our decision to mean that the filing of the map of reservation constituted a per se taking, we would have left the statute intact. 640 so.2d 74 (Fla. 1994). In this BUD proceeding, the complained of regulation must be accepted as constitutionally valid; it cannot be struck. Only the economic impact of the regulation is considered. Allegations of Agency Impropriety (or Bad Decision - Making) Cannot Form the Basis of Liability The landowners appear to take issue with the planning and zoning decisions of the Planning Department, and seek relief that is both extraordinary and unavailable. The landowners, for File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 37 of 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 example, state "the current definition of `lot' should be struck because it is arbitrary, has no relationship to clarifying setback regulations, and lacks a substantial relationship to public health, morals, safety or welfare." This is contrary to the well- established law in Florida that agency impropriety cannot be the basis of a takings claim. Under Florida law, a plaintiff suing for inverse condemnation must accept the validity of agency action claimed to contribute to a taking. E.g., Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Trust Fund, 427 So. 2d 153, 156 (Fla. 1982). In Key Haven, the Florida Supreme Court explained that after an agency action becomes final a party may elect either to challenge the action by direct review in the district court of appeal or, "by accepting the agency action as completely correct," sue in circuit court for inverse condemnation. Id. (emphasis added); see also Albrecht v. State, 444 So. 2d 8, 13 (Fla. 1984) (explaining that whether the party "agrees to the propriety [of the agency action] or it is judicially determined," in either case "the matter is closed" before a claim of inverse condemnation may arise). Any claim of inverse condemnation arising from agency action may be brought "only with the underlying premise that the .. . agency action was valid. .." Dep't of Environmental Protection v. Youel, 787 So. 2d 923, 924 (Fla. 5th DCA May 17, 2001) (holding that a finding of taking could not be predicated upon a theory of estoppel). Once a landowner brings an inverse condemnation suit, he "is foreclosed from seeking judicial review of the validity and propriety" of the permit denial. Janson v. City of St. Augustine, 468 So. 2d 329, 329 (Fla. 5th DCA 1985); see also State Dept of Environmental Protection v. Burgess, 667 So. 2d 267, 270 (Fla. 1st DCA 1995) (disallowing any challenge to "the validity or propriety of the agency's action on due process or other grounds in an inverse condemnation proceeding "). The issues in a taking action contrast sharply with those in a party's challenge to a permit denial. Id.; see also Coastal Petroleum Co. v. Florida Wildlife Foundation, Inc., 766 So. 2d 226, 228 (Fla. 1st DCA 2000) (stating that inverse condemnation issues are "not before us" in appeal challenging permit denial and declining to address them) (opinion on rehearing). Conclusion Based on a review of all of the available information, staff recommends that the Special Magistrate deny the agent's and the landowners' requested relief in the BUD application for "the property be awarded a density allocation for development of one (1) dwelling unit on the property and a building permit issued," pursuant to provisions identified in this memorandum. VII. EXHIBITS • Exhibit A — Application for Beneficial Use Determination (BUD), File 4 2016 -202 • Exhibit B — December 22, 2016 Notice of Deficiencies • Exhibit C — Additional materials and information for BUD, File 4 2016 -202 • Exhibit D — January 27, 2017 Determination of Sufficiency • Exhibit E — Amended BUD Application and supporting materials File 4 2016 -202 Beneficial Use Detennination 475 Brown Drive, Ramrod Key 11/9/2017 Staff Meino to Special Magistrate Page 38 of 39 1 ■ Exhibit F — June 27, 2017 Notice of Deficiencies 2 ■ Exhibit G — Additional materials and information for BUD, File 4 2016 -202 3 ■ Exhibit H — July 14, 2017 Determination of Sufficiency 4 ■ Exhibit I — LDC Chapter 102, Article IV, Division 2 (Beneficial Use Determinations) 5 ■ Exhibit J — Ordinance No. 003 -2015 and BOCC agenda package 6 ■ Exhibit K — Ramrod Shores Third Addition recorded plat File 4 2016 -202 Beneficial Use Determination 11/9/2017 Staff Meino to Special Magistrate 475 Brown Drive, Ramrod Key Page 39 of 39 S John Slattery's presentation for the Olynger Hearing The bottom line is the County changed the definition of a Lot — and they did it by burying the definition change in the middle of a setback ordinance without any explanation or discussion whatsoever as to why the lot definition was being changed. This clearly violated the Single Subject Rule of the Florida Constitution. The Florida Constitution provides that "Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title of the ordinance. The Florida Supreme Court established — and I quote from case law - that the "...primary purpose of the requirements is to prevent'hodge- podge or log- rolling legislation. Its object is to avoid surprise or fraud by fairly apprising the Legislature and the public of the subject of the legislation being enacted. Failure to indicate in the title the object of the bill often resulted in members voting unknowingly for measures which they would not knowingly have approved." The Florida Supreme court also held.that the short title of a law —and I quote - "... must be so worded as not to mislead a person of average intelligence as to the scope of the enactment and be sufficient to put that person on notice and cause him to inquire into the body of the statute itself." "The test for determining whether an act's title comports with our constitution is whether it fairly gives such notice as will reasonably lead to inquiry into the body of the act." PI • Further, a short title "...cannot be so broad as to purportedly cover unrelated topics, and thus provide no real guidance as to what the body of the act contains. Indeed, allowing an overly broad short title to become the single subject runs the risk of permitting log- rolling and hodgepodge legislation." When you read the requirements set forth by the Constitution and the Florida Supreme Court it's crystal clear that this setback ordinance violated the Single Subject Rule and its intention to prevent this very act of hodgepodge log- rolling legislation from UNknowingly being voted in. First, the header of the setback ordinance was way too broad by simply stating their amending definitions without going into what definitions or any details. Second, changing the definition of a lot, which affected density and took away building rights, has absolutely nothing to do with adjusting setbacks. They are two completely different unconnected subjects and did not belong in the same ordinance per the Single Subject Rule. Furthermore, there was never, at any time whatsoever, discussion about why they were changing the definition of a lot. It was literally never brought up at all. The Commissioners and the public were completely uninformed and unaware that property rights were being eliminated by this. They were given no reason to inquire further. In fact, at our appeal hearing two of the three Planning Commissioners present, Denise Werling and William Wiatt, admitted on the record they did not know what they were voting for with the lot definition change. • The entire point of the Single Subject Rule is to prevent this kind of ill- informed voting and here we have two Planning Commissioners admitting they were duped. The Solution As Commissioners you have the ability to immediately solve this taking of property rights problem for hundreds of property owners. As elected officials, who swore an oath to uphold the Florida Constitution and the Constitution of the United States, you can today declare the lot definition change in Ordinance 003 -2015 Unconstitutional. If you do this it means you can continue issuing permits immediately under the old lot definition. And for a long -term solution you can, in the near future, vote in a text amendment to Ordinance 003 -2015 changing the lot definition back to the old definition. The other choice is to keep fighting the affected property owners whose numbers continue to grow. Eventually this will land up in court under various Constitutional violations such as the Single Subject Rule, Due Process, Equal Protection Under the Law, etc. And let's not forget Takings Claims, the Burt Harris Act or conflicts with the Land Development Code. Eventually enough of us will pool resources and bring it to court/ and when the Ordinance is found Unconstitutional the ENTIRE ordinance will be struck down, not just the lot definition change. The reality is there are a number of good aspects to the setback changes; so, no one wants to see that happen. But, if losing the entire setback ordinance means we get our property rights back then that will be an unfortunate necessity. We hope you all decide to take the obvious easy fix, declare the new lot definition unconstitutional and change it back with a text amendment. THANK YOU COMMISSIONERS MY NAME IS MARK OLIVER I HAVE BEEN A MONROE COUNTY RESIDENTAND BUSINESS OWNER FOR THE PAST 19 YEARS IN JANUARY OF 2015 MY WIFE AND I PURCHASED 23 OCEAN AVENUE IN HISTORIC TAVERNIER THE LOT WAS VACANT / TIER III / COUNTY ROAD / ELECTRIC / CENTRAL SEWER AND WAS THE PERFECT SPOT TO BUILD A HOME AND RAISE OUR TWO CHILDREN AFTER CLOSING ON THE PROPERTY I CONTACTED MONROE COUNTY PLANNING ABOUT CORNER LOT SETBACKS AND WAS INFORMED THATAN ORDINANCE WAS IN THE WORKS I MET ONSITE WITH THE COUNTY BIOLIGIST/ I RECEIVED HARC APPROVAL FOR OUR HOUSE THE SAME ORDINANCE I WAS WAITING ON / SO I DIDN'T HAVE TO APPLY FOR A VARIANCE / WAS THE SAME ORDINANCE THAT TOOK AWAY MY BUILDING RIGHTS I AM A GENERAL CONTRACTOR / I AM IN THE BUSINESS / I HAD READ THE SETBACK ORDINANCE MANY TIMES. THE CHANGED DEFINITION OF "LOT" HAD FAR GREATER RAMIFICATIONS THAN THE SETBACK ORDINANCE ITSELF. WE CAN DISCUSS THE SINGLE SUBJECT LAW / TALK ABOUT THE YEARS THE PLANNING DEPARTMENT WAS FORMED / WHAT YEAR THE LDC WAS FORMED / HOW THE LDC DOESN'T MATCH THE COMP PLAN WE CAN DEBATE / CITE CASES / LAWYER UP / SPEND LANDOWNERS MONEY / SPEND TAXPAYERS MONEY JUDGES CAN DENY ON NOT BEING RIPE / OR IT'S NOT THEIR JURISDICTION MONROE COUNTY PLANNING DEPARTMENT CAN MAKE REPORTS BUT THE CORE PROBLEM IS THAT ONE SENTENCE IN AN UNRELATED ORDINANCE CHANGED THE PROPERTY RIGHTS OF LANDOWNERS OF UNPLATTED LOTS. THIS IS FACT / THIS IS NOT UP FOR DEBATE /THIS IS THE CORE PROBLEM MY PARCEL WAS CREATED BEFORE THERE WAS A PLANNING DEPARTMENT/ BEFORE THERE WAS A ROAD TO KEY WEST THESE LOTS ARE BUILDABLE AND HAVE ALWAYS BEEN BUILDABLE WHEN I WAS 13 MY FATHER PUT A NOTE ON MY MIRROR "I WILL BE ACCOUNTABLE FOR MY ACTIONS" INSTEAD OF THE BACK AND FORTH WHEN DO WE TAKE ACCOUNTABILITY FOR AN ORDINANCE THAT WAS CREATED WITH A MAJOR FLAW WHEN DO WE COME UP WITH A SOLUTION TO THE PROBLEM HENY OLYNGER IS HERE TODAY FOR A BUD DETERMINATION AND I URGE THE COMMISION TO TAKE THE FIRST STEP IN CORRECTING THE ORDINANCE THAT BRINGS US HERE PI FROM THIS DAY FORWARD WE ALL SHOULD BE INVOLVED IN FINDING A SOLUTION COMMISIONERS: I URGE YOU TO TAKE A LOOK AT THIS MATTER BEING CONSCIOUS OF THE RIGHTS OF PEOPLE / THE LONG RANGE CONSEQUENCES AND THE INTERRELATEDNESS OF DECISIONS THIS SUBJECT NEEDS TO BE HANDLED FAIRLY AND ETHICALLY THE DEFINITION OF A LOT NEEDS TO BE CHANGED BACK WITH A TEXT AMENDMENT I ASK THE PLANNING DEPARTMENT TO COME UP WITH AN APPLICATION SIMILAR TO LOT LINE ADJUSTMENTS THAT GIVES ALL THE LANDOWNERS THE PEACE THAT THEIR LOT IS CONFORMING I ASK THE COMMISSIONERS TO VOTE ACCORDINGLY {� �V Can vl G� I { z _ �--� s o viz ax Kc 3 I At, X 4 Its. x` ��'��, ° - 4 � WWR T /1 Jz ot),^l/ 17 MOVE El Ilk Fl (Dq" Kog:D,5roF