Item M7 M.7
G BOARD OF COUNTY COMMISSIONERS
County of Monroe � "1 Mayor Sylvia Murphy,District 5
The Florida Keys l'U � � Mayor Pro Tern Danny Kolhage,District 1
�pw° Michelle Coldiron,District 2
Heather Carruthers,District 3
David Rice,District 4
County Commission Meeting
September 18, 2019
Agenda Item Number: M.7
Agenda Item Summary #6081
BULK ITEM: No DEPARTMENT: BOCC District 4
TIME APPROXIMATE: STAFF CONTACT: Tamara Lamarche(305) 289-6000
11:30 A.M.
AGENDA ITEM WORDING: Discussion and direction regarding OceanPointe Condominium
issues.
ITEM BACKGROUND: There are unresolved historical zoning issues and current issues of
pending vacation rental licensing applications. A review of the historical issues and how it is
affecting the licensing issues for the BOCC will be very helpful.
PREVIOUS RELEVANT BOCC ACTION:
CONTRACT/AGREEMENT CHANGES:
NA
STAFF RECOMMENDATION:
DOCUMENTATION:
Amy Slate Emails 9 9 2019 (2)
3809_001
FINANCIAL IMPACT:
Effective Date:
Expiration Date:
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Packet Pg. 1920
M.7
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required:
Additional Details:
REVIEWED BY:
David Rice Skipped 09/10/2019 12:47 PM
Bob Shillinger Completed 09/10/2019 1:02 PM
Kathy Peters Completed 09/10/2019 1:06 PM
Board of County Commissioners Pending 09/18/2019 9:00 AM
Packet Pg. 1921
Lamarche-Tamara
From: amyamoray@aol.com
Sent: Monday, September 9, 2019 2:05 PM
TO: BOCCDIS3; BOCCDIS2; SOCCDISS; BOCCDIS4
Saibject: Exemption,for vacation rentals
CAUTION:This email originated from outside of the County.Whether,you know,thie sender or not,do not cluck links or
open attachments you were not expecting,
Dear Commissioners,
I have been a business owner and resident in Mionroe County for 41 years. I recently sold my resort property and I have U)
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45 days to identify properly for a 1031 exchange, I have contracts to purchase 2 properties at Ocean Point Condominium
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and 2 more that I am considering- They are unit 3208, presently owned by James and Vicki Bowen, unit 4314, presently
owned by Steven and Barbara Schoepp, Un4s 3404 and 2413 owned by Tom and Kimberly Rodriguez, 0
Ocean Point has been a Condo Hotel for over 30 years and has all the proper zoning and licenses. I have heard there
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are renters who have received code enforcement violates there even though they have applied for the exemption for 0
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vacation rental certificates.
I know of Ocean Point owners who have had their applications submitted for months and no one in, planning.can tell them 0
when the certificate will be granted and in the meantime the owners are loosing revenue as they can not rent without the r-
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exemption. U)
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All this loss of revenue can turn into many lawsuit for the county that the tax payer will end up paying for.
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I am asking that the county reviews and resolves the Ocean Point situation which has always been in compliance and that
you advise me as to when the exemption will be issues for 3208, 4314, 3404, and 2413, as I am under a time constraint
with my 1031
cv
I will be sending some other documents about Ocean Point in the following email.
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Please call me at 305 394 4400, .@
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Thank you for your time in reviewing this matter.
Kind regards,
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Amy Slate
E
Packet Pg. 1922
Lamarch!e-Tamara
�(From: amyamoray@a,ol.com
Sent-, Monday, September 9, 2019 2:20 PM
To: BOCCDIS3; BOCCDIS2; BOCCD65; BOCCDIS,4
Subject: Fwd,Ocean Pointe State Mandate,
Attachments: 3809001,pdf
CAUTION:This email originated from outside of the County. Whether you know,the sender or not, do not click links or
open attachments you were not expecting.
Here us the State Mandate papers to have the zoning changed frorn the court cases with the Developer(. US Homes)and
a cover letter from the County Attorney, at the time, directing all the Departments to comply with said Judgments, AU)
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The County gave US Homes a Permit to build all 5 buildings and the arneftes but well into the building process the
Developer was told by the County that they needed to put irn a fire sprOkler system m,i every una or the County was NOT 0
going to give there a CO, ceirt0icate of occupanc , Then The Count)(would No-r let the developer tie into the main water
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line for the backup reserve to the fire sphrikler system So the developer decided to triple the size of the swimming pook, S
This caused over 16 MONTHS of additminal construction time, l remember this because I worked for US Homes and l was 0
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not going to get paid until we could offi6ally close on the first bii.nlding. It set everybody back l still have many brochures r_
that show the much smaller pool because it had already gone to print.
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The County also had the Developer increase the water pressure i( by putting uin larger water pipes down Burton Dr.) to, r_
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Blue Waters subdivision and to, Harry Harris Park subdivision The developer had to,widen Burton Dr. and iinstall a bilke
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path. The County also wanted the Developer to have a stop light installed at the intersection but the BOCC , mainly Key
West commissioners, would not allow it. So the developer had to pay to have the turning lane going north The developer .UU)
also had to, buy 69 acres jjust so they could build on 23 acres so OP owns all the land across the street all the way to, US I
but cannot do anything with it but pay taxes on iit.
From Day one of completion at Ocean Pointe it has been labeled a Condo/Hotel by all the mortgage lenders, so the
mortgage rates are riot as good as a regular Cando, and the insurances have been higher for the buildings and for any C14
homeowners who tries to get their own personal insurances.
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CP is a gated community with 2417 security that makes time kept rourids and that is expensive but adheres to what the .@
county waisted. E
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Capt, Shawn Mac Mulbri--305432-1575
ShiawnKeyLM,.g@yahoo,go
.............
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Talk to YOU SOVII,
E
Tom
Tom Rodriguez
(305) 394 06 38
tomirodriguez net
Your Local Keys Realtor for Over 25 Years!
Packet Pg. 1923
BOARD OF_COUNTY COMM
j§§ M.7.b
OUNTY JIFLORIOA ON OE �.,, MAYOR Wilhelmine Harvey, District 1
KEY WEST. 3040 Ed Swift, District 2
13051 294-"41 wm. Wm. Billy Freeman, District 3
x Mayor Pro tern Alison Fahrer, District 4
John Stormont,-District 5
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C IV
M E M O MAY 2 1986
DATE: April 29, 1986 w MONROE CON
TO: Charles Pattison, Director
F PLANNING D
Building, Planning & Zoning I
FROM: Lucien C. Proby, Jr.
County Attorney
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RE: , Planters Pointe (U.S. Homes)
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The Mandate in the U.S. Homes case has been received from the
Third District Court of Appeal. This means the case is final
(the trial court's ,judgment of. 6/18/85 was affirmed) . IL
The pertinent Final Jud eats are enclosed herein. Your
Departments are hereby irected to comply with said Judgments.
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County Attorney00
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LCPJr/SV/Jeh
enclosures E
Packet Pg. 1924
1.
TO FILE R£ RI'Nr, MOTION
AND, IF FILED,,. DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA "
THIRD DISTRICT
JANUARY •TERM, A.D. 1986
•
ZONING BOARD OF MONROE COUNTY, **
BOARD OF COUNTY COMMISSIONERS OF
MONROE COUNTY, MONROE COUNTY, **
UPPER KEYS CITIZENS ASSOCIATION
and WENDALL WHEATON, **
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APPallants, **
VS. ** CASE NO. 85-1988
MIRIAM B. HOODP JOSEPH M. **
BURTON 'and U.S. HOME CORPORA- °
Appellees. **
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Opinion filed March 11, 1986.
An Appeal from'.the Circuit Court of. Monroe County,
David P. Kirwan, Judge. 00
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Fine,Jacobson,Schwartz,Nash,Block & England and
Stuart L. Simon and Debbie L. Mescon, for Appellants.
• Johnsgn;Blakely,Pope,Bokor & Ruppel and John
Blakely, for Appellees.
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Before HENDRY, HUBBART and FERGUSON' JJ.
FERGUSON, Judge-
Appellees/petitioners sought' a zoning change to accommodate a
"'major development project. " A decision of the zoning Board of
A; QAnnro,*ed the proposed plan for developme Packet Pg. 1925
• M.7.b
Attorney on behalf of the respondents, and by counsel for 'the
petitioners, a final judgment was entered.2 The stipulation for a
judgment approved the -development conditioned principally on the
developers' reduction of the project's intensity so as to reduce
environmental impacts. It was also agreed between the parties that
another lawsuit then pending in federal court between some of the
. parties would be dismissed with prejudice.
The final judgment required the Zoning Board to "review and ap-
prove the final- development plan" after determining that "it is com-
plete and is substantially in accordance with the conditionally ap-
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proved preliminary development plan. " Upon a finding that the condi-
tions and requirements had been fulfilled it was agreed and ordered 0
that the site would be rezoned accordingly. Lastly, the court re-
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served jurisdiction of the action to enforce the executory provisions
of the judgment. No appeal was taken.
The Zoning Board, in accordance with the stipulated. judgment, con- U)
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ducted public hearings, determined that all conditions and require- 2
ments were satisfied, approved. -the final development plan,
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and ordered the rezoning. The development order was appealed to the00
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Board of County Commissioners by Wendall Wheaton, an adjoining
• property dwner, and the Upper Keys Citizens Association, who were
not parties in the trial which culminated in- the stipulated judgment.
Seven months later, the Board of County Commissioners , without giv-
ing a reason, overruled the Zoning Board's approval of the final
development plan -- the development plan which had been conditionally
approved by the final judgment of April 1984.E Appellees' motion to
the trial court for enforcement of its judgment was heard and granted.
This appeal, joined in by the Zoning Board and the Board of County
Th;, re9 0 ,ants in the trial court action were the Zoning Board
of Monroe Count Board of County Commissioners of Monroe Count
_ . _y, F_r 't-so Sixteenth Judicial Circuit. The Packet Pg. 1926
Commissioners, is brought from the order enforcing the judgient.
In striking the county commission resolution which overruled the
development plan the Zoning Board had approved, the trial court
aptly summed up'.the County' s argument: '
(A) The County (Commissionl . agreed to require
the Zoning Board to approve the conditional develop-
ment plan; (but]
('B) the County (Commission] did not agree to af-
firm the Zoning Board's approval of the plan; (thus)
(C) the County (Commission) was free -to reverse
the Zoning Board's approval of the plan.
If the County's argument is accepted then the final judgment
entered by the court on agreement between the County and the appellees
is rendered meaningless since the County would have reserved to it- U)
self the right to reject the judgment. The trial court rejected the
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argument. So do we. , .
A final judgment is one which determines the rights of the parties IL
and disposes of the cause on its merits leaving nothing else to be
done but the execution of the judgment. Gore v. Hansen, 59 - So.2d
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538 (Fla. 1952) ; DeFili is v. DeFili is,. 378 So.2d 325. (Fla. 4th
DCA 1980) . It was certainly the intention of all the parties that
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the dispute was to be adjudicated to finality, which was then done to
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the satisfaction of all the parties. Travelers Indemnity Co. v.
• Walker, 40'1 So.2d 1147 (Fla. 3d .DCA 1981) (where, following entry of
"order,enforcing settlement" between partiesi there was nothing what-
ever left for court to do in pending action, other than to enforce
what the order required of the parties, the order was a final Judg-
ment) .
After expiration of the time for taking an appeal, the only vehicle
for setting aside the final judgment would be by a proper motion
made pursuant to Florida- Rule of Civil Procedure 1.540, as the trial
Packet Pg. 1927
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court noted.4 The parties to the stipulated final judgment are
otherwise bound to its terms.
Affirmed.
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. Appellants 'Wfieaton and Upper Keys Citizens Association, although
strangers to the original court action, may assail the judgment either by
a motion filed pursuant to Florida Rule of Civil Procedure 1.540 (b) ,
'based on fraud, see Pearlman v. Pearlman, 405 So.2d 764 (Fla. 3d DCA
1981) , or by an dependent' collateral attack in which they packet pg. 1928
fraud. collusion, lack of jurisdiction, or that they should
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IN THE CIRCUIT COURT OF THE 16TH
JUDICIAL CIRCUIT OF THE• STATE OF
FLORIDA IN AND FOR MONROE COUNTY
MIRIAM B: HOOD, JOSEPH M. ;
BURTON and U.S. HOME
CORPORATION,
_Petitioners .
va. CASE NO. 83-20330-CA-17-33
ZONING BOARD OF MONROE •
COUNTY, BOARD OF COUNTY •
COMMISSIONERS OF MONROE
COUNTY, MONROE COUNTY, and
THE STATE ATTORNEY FOR THE
16TH JUDICIAL CIRCUIT,
Respondents. U)
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S T I P U L A T 1 0 N
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The parties, by their undersigned attorneys. hereby
stipulate to the entry of a Final Judgment in this action as
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follows:
FINAL JUDGMENT
1.. The community impact statement and preliminary i
development plan submitted by the Petitioners are hereby
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conditionally approved as described in Section 6-234(b) of the E
Monroe County Code, subject to all of the conditions set forth in
Exhibit 17 , in evidence, a copy .of which is attached, except
conditions numbered 3 and 12 in that Exhibit , and subject to the
following additional conditions:
a. That the final development plan eliminate from the
development plan the two buildings (numbered 6 and 7)
and the 84 dwellingunits ,proposed to be constructed in
them on the North side of Burton Drive.
b. That the final development plan require
Petitioners to construct, at their expense, a right-
turn Ian&. an shown in Exhibit 1 0_ 4.. Packet Pg. 1929
M.7.b
C. That the final development plan require all areas
Included in this major development project 'dn the North
side- of Burton Drive of approximately '26 acres, except
that portion thereof in the- preliminary development
plan shown for access, construction and maintenance of ;•
a sewer plant for this project, to be included in the
common elements of Planter' s Pointe Condominium. That -
land on the North side of Burton Drive, which is
subject to this .provision, shall be divested by the -
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Petitioners to the Condominium Association and the same U)
shall be subject to a restrictive covenant at the time
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of transfer perpetually prohibiting any development of
this property and requiring it be preserved in its
natural state.
2. As required by and in accordance with Section 6-234, the g
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Zoning Board shall immediately issue written authorization to the
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Petitioners to, prepare a final development plan of the proposed
development to be submitted to the Zoning Official. i
3. As required by and in accordance with Section 6-235,
after submission of all of the documents, data, plan changes, and
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other items required by conditional approval of the preliminary
development plan, the Petitioners may submit a request for
approval of the final development plan.
4. As required by and in accordance with Section 6-237 ,
after a public hearing, the Zoning Board shall review and approve
the final development plan if it is complete and is substantially
in accordance with the conditionally approved preliminary
development plan, fulfills the special conditions, and reflects
all required certifications, and the Zoning Board shall rezone
the property included in the 'major development project to B
Packet Pg. 1930
M.7.b
5 . That, in addition, the parties hereby stipulate that the
Petitioners for themselves , and the Respondents , and Mary Lin
Johnson, John Stormont, Alison Fahrer, Karen Sunderland and Peter
Bacle, on their part shall mutually release each other from any '
and all actions and liability arising out of this action and a
pending action filed in the U.S. District Court , Southern
District of Florida, Case No. 83-2796-CIV-EPS, which the parties
all agree shall be dismissed, with prejudice, and that they/ Will,
at that time, exchange mutual releases with all parties bearing
their own costs and attorneys fees in all such actions.
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6. The application of the provisions of; this final judgment
may not be suspended or delayed by imposition of any moratorium o
ordinance adopted by. Monroe County.
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7. The Court reserves jurisdiction of this action to
enforce the executory provisions of this judgment. 0
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DONE AND ORDERED in Chambers of the Monroe County
Courthouse, at Plantation Key, Monroe County, Florida, this
day of. April. A.D. 1984 .
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DAA16Q P. K1RVIAN
DAVID P. KIRWAN, Circuit Judge E
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EXECUTED AND APPROVED by:
• LUCIEN C. PROBy , JR.
Monroe County Attorney
Representing Respondents
JOHN' T. BLAKEL"Y, ESQ.
Attorney for Petitioners
Packet Pg. 1931
PLANTER'S POINTE
DEVELOPMENT CONDITIONS
The following Development Conditions bring the PIanter's Pointe proposal into
conformance with the Monroe County Building, Planning and Zoning Department's
recommendations and are approved as conditions for the final development approval of
Planter's Pointe. The below listed development conditions will Insure compliance with
provisions of the Monroe County Code and the criteria imposed by the "Area of
• Critical State Concern" designation. During construction the Monroe County Building,
Planning and Zoning Department will monitor conformance with these development
order conditions (re: 56-238(d), M.C.C.) and will issue to the State of Florida,
Department of Community Affairs a report on conformance within 60 days of
completion of construction. Pursuant to Section 6-238(e) and (d) of,the Monroe County
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Code, the Owner must comply with these final development order conditions. a
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A. THE APPLICANT ALONG WITH HIS HEIRS SUCCESSORS AND ASSIGNS WILL: �
1. Obtain DER and Monroe County permits for the construction of an on-site
sewage collection, treatment and disposal system and provide copies to
the Monroe County Planning, Building and Zoning Department and the
State of Florida, Department of Community Affairs.
2. Upon completion of underground utility construction within the Right-of-
Way of Burton Drive the applicant will resurface Burton Drive, between
the project entrance and U.S. Highway 1, as required by the Monroe
County public Works Department and/or .Florida Department of
Transportation, and provide details of resurfacing to the Monroe County
Building, Planning and Zoning Department and the State of '
Packet Pg. 1932
• (dry) boat/trailer parking. Continue coordination efforts with the State of
Florida Department of Community Affairs (DCA) to obtain necessary
• approvals permitting use of under building areas for automobile parking.
Should approvals for under building parking be granted by DCA, fire
resistive barriers and/or other fire protection systems will be installed in
accordance with applicable Monroe County Code, Southern Standard
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Building Code and National Fire Protection Association (NFPA)
requirements; 0
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4. Delineate the total acreage of preserved areas, open space, landsd'aped .
areas-and sidewalks along with the actual amount of land area devoted to
specific land uses, activitids and/or functions. U)
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S. Construct security gatehouses at project entrances.
S. Screen the sewage treatment plant from view with native vOgetation.
. 7. Understand and agree that: no use of the shoreline area is proposed; no
boardwalks or walkways will extend more than twenty-five feet
waterward of buildings (except in the proposed marina area); and any use
which could be proposed in future will be subject to and developed in
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" accordance with Federal, State and local regulations.
8. No trimming or removal of mangroves will occur outside that small
amount proposed as a part of the marina expansion.
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Packet Pg. 1933
. .. __sue_ _ �..�e.... ......e „E natives VO�AtAtiAn AiAn� RftNtnn flrivs t
• ,y « MM7.b
off the development from view and minimize impact on the visual
environment.
10•. Obtain Florida Keys Aqueduct Authority and DER water distribution
system permits -and provide copies to the Monroe County Building,
Planning and Zoning Department and the State of Florida Department of
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Community Affairs. Construct at no cost to Monroe County an 8" water
main, extending from the Florida. Keys Aqueduct Authority transmission U
main in U.S. Highway 1 along Burton Drive, through the project and
connecting to the existing distribution main in Planter Drive.
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11. Obtain a South Florida Water Management District, (SFWMD) surface
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water management permit and provide copies to the Monroe County a
Building, Planning and Zoning Department and the State of Florida
Department of Community Affairs.
12. Make moderately priced units available for sale and construction
concurrent with the higher priced waterfront units. Marketing demand
will dictate the actual scheduling of construction. Any revisions to the-
building construction phasing plan will be submitted to the Monroe County
Building, Planning and Zoning Department for review.
13. Vacate existing plats and public rights-of-way within the limits of the
project by application to the Monroe County Board of County
Commissioners prior to beginning construction.
• •
Packet Pg. 2!4
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Monroe County Biologist and' Monroe County Building, Planning and
Zoning Departments and obtain U.S. Army Corps- of Engineers, Florida
Department of Environmental Regulation and Monroe County Building
Department permits for activities in their respective jurisdictional areas.
15. Implement design controls to prevent and prohibit vehicular access and
construction of boardwalks or other structures M" the shoreline protection
zone, and other areas more than twenty-five feet waterward of buildings. U
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16. Remove all existing debris and trash from the site during the first Imasecu
of construction.
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17. Present the proposed basin expansion to the Monroe County Zoning Board
for final approval after permit approval by the Florida Department of
Environmental Regulation and U.S. Army Corps of Engineers and upon
recommendation of the Monroe County Biologist and Monroe County
Building, Planning and Zoning Department.
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IS. The relative best ("prime") wildlife habitat areas of the tropical hardwood
hammock and shoreline areas of the site will be described by metes and
bounds legal descriptions and preserved through protective covenant.
19. Develop a plan for mosquito control and submit the plan, for evaluation to
the Monroe County Building, Planning and Zoning Department and the
Monroe County Mosquito Control District.
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Packet Pg. 1935
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IN THE CIRCUIT COURT OF THE
SIXTEENTH JUDICIAL CIRCUIT
IN AND FOR MUNROE COUNTY, FL.
CASE NO. 83-20330-CA-17
MIRIAM B. HOOD, et alw'
Plaintiff
;1UN $01935'
vs
ZONING BOARD OF MONROE COUNTY, COUNTY ATTY.
et al U)
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Defendants
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ORDER ENFORCING-FINAL JUDGMENT
THIS CAUSE came before the Court on the plaintiffs' sworn S
motion to enforce the Final Judgment. Upon receipt of the
motion, the Court reviewed transcripts of the trial that was
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conducted on April 3, 1984, the 'meeting of the Board of County
Commissioners that was conducted on April 6, 1984 'to consider a
and approve the settlement stipulation, the meeting of the00
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Zoning Board of Monroe County that was conducted on June 26,
1984, and the meeting of the Board of County Commissioners that
was conducted on February 20, 1985.
Because the Court had jurisdiction at the time of entry
of the Final Judgment in this cause, the Court has continuing
jurisdiction to enforce this Judgment notwithstanding defen-
dants' contention that plaintiffs are required to first apply tb
the Board of County Commissioners for a modification 'or
remission as provided under Section 10, Ch.61-2503, Laws of
Florida.
At the hearing, Monroe County contended that it did not
have authority to make the settlement stipulation and that the
Packet Pg. 1936
the IIr.mr-ii nF /�niin*�� �`nmm
M.7.b
Final Judgment has ever been filed pursuant to Fla .R.Civ.P.
1.540. The Final -Judgment was the result of a negotiated set-
tlement between plaintiffs and the County, which acted through
its duly elected County Commissioners. - Public input to these
officials was made at both the Zoning Board and County Commis-
sion levels. The settlement in this case- in- no way vitiates
public participation in the development approval process. The
public fully participated in the administrative process at
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hearings which preceded the trial of this cau;e. The settlement 0
was announced by the parties after trial - and while the matter
was under advisement by the Court.
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The operative features of the settlement included condi-
tional approval of the- community impact statement and prelimi- 0
nary development plan for the plaintiffs' project, subject to U)
numerous conditions. The County further stipulated that the
Zoning Board do the following acts, among others:
"4. As required by and in accordance with Section
6-237, (Monroe County Code) after a public hearing,
the Zoning Board shall review and approve the final
development plan if it is complete and is substantially
in accordance with the conditionally approved preliminary
development plan, fulfills the special conditions, and
reflects all required certifications, and the Zoning
• Board shall rezone the property included in the major
development project to RU-3 classification, to be
developed in accordance with the final development plan."
Thereafter, in accordance with the Final Judgment, plain-
tiffs prepared and submitted a final development plan which ,
incorporated all of the conditions of the preliminary develop-
ment plan and the settlement agreement. At the conclusion of a
public hearing on June 26, 1984, the Zoning Board approved the
final development as provided by the Stipulated Final Judgment
(and in accordance with Section 6-237 of the Monroe County
Packet Pg. 217
February 20, - 1985 the Board of County Commissioners, heard
argument- on the appeal . The oral arugment in support- of the
appeal consisted primarily of comments on the alleged' lack of
preparedness of the County Attorney for trial of this cause and
of an attack on the Court for hearing the trial of the cause in
an expeditious manner and for approving the- settlement between
the parties.
The Commission then proceeded to reverse the Zoning Hoard
without articulating a single reason for doing so.3 U)
2. The plaintiffs seek enforcement of the Final Judgment.
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In doing so they note that the County has never either appealed
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the Final Judgment or otherwise sought relief from it.
The County defended the enforcement proceeding with a
plethora of procedural arguments none of which the Court finds
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persuasive. Additionally, the County proposed that the Court
construe the disapproval of the Zoning Board action as not being
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within the parameters of the stipulated Final Judgment. Simply i
put, the argument goes something like this - (A) the County
agreed to require the Zoning Board to approve the conditional E
development plan, (B) the County did not agree to affirm the
w Zoning Board's approval of the plan; therefore, (C) the County
was free to reverse the Zoning Board' s , approval of the plan.
This argument, while somewhat clever, is absurd. If the
Court- were to accept this construction of the Final Judgment,
the stipulation itself would be totally unenforceable. For,
while the County giveth approval by directing the Zoning Board
to do so, it likewise taketh away by exercize of its power to
reverse the Zoning Board decision-4 The County has violated the
�....: .+., nir^ntnr within 21 days from the date of the date Packet Pg. 1938
• .. M.7.b
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clear intent of the parties in entering this stipulated Final
e
Judgment.
It is, therefore,
ORDERED AND ADJUDGED as follows:
1. The action taken by the Board of County Commissioners
on February 20, 1985, in reversing the Zoning 'Board's approval
of the plainti€fs$ final development plan is contrary to law,
and violates the Final Judgment that was knowingly and voluntar-
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ily accepted by the Board of County Commissioners in this ac-
tion.
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2. Resolution 56-1985 of the Board of County Commission-
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ers, which reverses and overrules the Zoning Board's approval of
the plaintiffs' final development plan is hereby stricken and 0
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set aside. U)
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3. The action by the County Commissioners in adopting 2
Resolution 56-1985 was not contemptuous, and the Court does not
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find them to be in contempt of Court. 00
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DONE AND ORDERED in Chambers at Marathon, Monroe County,
Florida this / day of June, 1985.
•
44"GE
CIRCURT JUD
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Copies furnished:
John T. Blakely* Esquire
Lucien C. Proby, Jr. , Esquire
Joe Miklas, Esuqire
Hugh Morgan, Esquire
Fred Tittle, Esquire
anoointed by, and serve at the pleasure of, the Board of Packet Pg. 1939
1. . VV ft r _0 6.70%r4Aa
September 18, 2019
Monroe County—Ocean Pointe
Transition to Vacation Rental Compliance
I am Barry Wray and I am a registered agent for over 40 owners at Ocean Pointe Condominium
in Tavernier, a 240 unit Condominium Resort.Today my goal is to enlighten the BOCC about
some of the unique regulatory issues somewhere in process of resolution at Ocean Pointe, but
also to bring to light process and matters and has consequences for both the owner community
and the County and that these processes can either represent achieving goals where both sides
win, or both sides lose. There is no win lose scenario, regardless of pathway and methods
chosen.
There are two issue to describe today. Please bear with me as they may seem a little complex,
but I will do my best to keep them concise and clear. One is an issue of zoning, and the other an
issue of code compliance and transition. Code compliance affects all owners and the two
subjects converge for a unique subset of owners at Ocean Pointe.
It is my hope that bringing this awareness to the BOCC will permit this body to adjust processes
methods and direction where needed, to assure that well intended black and white laws that
we ask our staff to execute without bias, or waiver, result in a win-win scenario for both County
and Owner community. The outcome otherwise, unintentionally88 results in harm to both
County and Community.
Unbeknownst to most, who would be affected in Monroe County, 2019 brought a new initiative
to the Upper Keys, to get the County's house in order and assure vacation rental properties
were operating in compliance with the Special Vacation Rental Ordinance passed in 1997. I
served as one of the largest vacation rental managers in the Upper Keys from 2007 to 2009 and
know that many noncompliant rental operations existed without any form of code compliance
enforcement. Without enforcement, or notice, many owners and management companies lost
awareness that there even was a regulation and therefore had no concern about compliance.
The ordinance, never ubiquitously enforced, was a surprise to many, as the new initiative was
escalated via code infractions with imposed fines to the sets of condo owners in Key Largo.The
message was received loud and clear and rippled across the community of owner, since some
owned in multiple venues.
In the case of Ocean Pointe, a condominium resort that began operation in the early 90's, long
before the thought of an ordinance the belief was the county had enacted a regulation that
made certain condominium property exempt to the regulation and that they were operating
correctly. Ocean Pointe Resort is unique in that it can rent nightly based on the County
requiring an upgrade to a sprinkler system in each units during negotiated approvals for the
development.
M-1
Ocean Pointe development reviews in the 80's included Land Planning and Commissioner
decisions,district court decisions and appellate court stipulated judgements that were never
completely complied with by Monroe County, the compliance initiative illuminated many
unique issues that required resolution. They are somewhere in process but needs discussion a
little later in my presentation.
In the case of Ocean Pointe with nightly rentals permitted by virtue of the sprinkler system,
rentals are a very important function that provide revenues that without would prevent many
owners from ever buying a unit. If these revenues are affected it can present hardship for
many and if they are relegated to.28 days rentals,versus nightly the income is insufficient in
comparison to normal operations. Typically, the September to November timeframe is when
most visitors are making reservations for the upcoming winter season,January to March/April.
When I was a vacation rental manager, I earned about 60- 70% of my short-term rental income
in the first 3 months of each year.
These rental revenues, as you know, provide important support for our tourism development
and fund many other benefits for our municipalities across the Keys. They also serve to buoy
real estate values, which funds all essential operations within our communities. Disruption of
these revenues is occurring presently, due to staff doing their jobs to enforce the vacation
rental regulations. Many owners at Ocean Pointe and their associated rental management
companies have been cited and fined and are due to appear the magistrate as early as the last
week of October.
Additionally,you will hear from prospective buyers today, who will witness to the chilling effect
this is having upon their interest in Ocean Pointe, which then translates to reduced real estate
value.
This is a lose-lose scenario, that can be rectified to result in the County achieving code
compliance and the owners being able to continue normal rental operations unaffected while
engaged in the applications process.
In behalf of my clients, I have over 30 Vacation Rental Exemption applications submitted
presently and my work with the County Staff overseeing and reviewing these shows a high
priority to process these with a belief that Ocean Pointe is a property qualified for exemptions.
It was the opinion of all, who I have spoken with at Ocean Pointe and mine from when I was a
Vacation Rental Manager 10 year ago, that condominiums with gated entry, condo regulations
on rental, resident property management and 24 x 7 security on site each day, were not subject
to vacation rental permitting. It was a surprise to all that and Exemption Permits had to be
acquired, but when made aware the response was very quick, because people do not want to
operate outside the law.
Now we have code enforcement that is stifling normal rental operations, regardless if
exemption applications are submitted for a property that has been operating with a nightly
rental format for nearly 30 years.
This is a lose-lose situation, where both the County and owner community are being harmed.
I would like to switch subjects to focus on the special case of zoning issues surrounding a subset
of owners at Ocean Pointe. In 1984 the BOCC approved Ocean Pointe. Later this development
approval ended up in Circuit Court challenged by the Zoning Board and subsequently the 3rd
Circuit Court of Appeals where the lower court rulings were upheld and clear stipulated
judgements were provided. A cover letter from the then County Attorney, Lucien C. Proby,Jr.,
ordered staff to comply with all judgements, one of which was to zone the development with
UR-3 zoning, which was compatible with the intended use of the development.
The zoning designations had changed to new nomenclature by the time of the appellate ruling
possibly causing some confusion, but for whatever reasons, a portion of the property ended up
being zoned Native Area, versus all of it being zoned Suburban Residential,thereby legally
prevented from rental operations. This issue surfaced several times over the years as Ocean
Pointe sought changes to the property, but it was never resolved. Peeling the onion of how it
got to be this way, it one thing, but it has now become an impedance to those owners affected
and the county staff, in adhering to code, has been clear with its instructions that no rentals are
permitted.
With my earlier discussions today,the same lose-lose situation is now amplified for these
owners. The boundary line of the Native Area covers an entire building of 48 units and 9 units
in another building, so the NA designation seems very arbitrary. Regardless, it does appear that
staff has determined a method to resolve this through Boundary Line Determination, which still
takes a substantial amount of time to process paperwork and receive state oversight approvals
in making the zoning finally comply with the stipulated judgements.
In the meantime, these owners are seeking relief to be able to rent as normal, with nightly
rentals without the threat of code enforcement action. Direction to staff to proceed
accordingly, will change a now existing lose-lose situation into one that addresses all issues over
time with no harm to any.
My observations are hopefully a benefit to the BOCC. In my career I have done professional
project management globally most of my life and would like to share a few thoughts. First, if
the goal to put the County's house in order was viewed as project, resource allocation becomes
one of the planning factors. Presently, by the shotgun style approach, the volume of
applications has placed our staff with work overloads, the has presented owners in a losing
situations, which in turn causes damage to the County both financially and in terms of goodwill
from constituents.
Most in our community wish to operate within laws and regulations. A goal to control the
volume of simultaneous application would have been advisable and a simple letter notifying
owners of the program to bring all into compliance with a transition plan that would not hurt
owner operations over that timeframe would result in the same level of compliance over the
same period of time without over pressuring staff and without creating the anxiety the exists
now due to uncertainties of the existing process.
It is not my intension to suggest anyone intentionally, or even unintentional did something
wrong, but the mechanics of a bureaucratic agency sometimes does not have the direction in
written code to consider nuance. Perhaps before the next initiatve, this may serve as a lesson
learned that the good will of our community will comply with needed regulations, if they are
made aware. In this case a sequence of letters directed to particular condos over time,would
have probably served well.
I thank you for your time and am ready to assist where asked to help our County.
Barry Wray
Chapter 134 MISCELLANEOUS RESTRICTIONS
ARTICLE I. IN GENERAL
Sec. 134-1. Vacation rental uses.
(e) Regulations.
ARTICLE I. IN GENERAL
Sec. 134-1. Vacation rental uses:
(a) Special vacation rental permit. An owner or agent is required to obtain an annual special vacation
rental permit for each dwelling unit prior to renting any dwelling unit as a vacation rental, as defined in
section 101-1, except as provided for under subsection (b) of this section. A special vacation rental
permit is nontransferablerbetween owners. A change of ownership of the vacation rental unit shall
require the new owner or his agent to obtain a new vacation rental permit for the residential dwelling
unit.
(b) Exemptions. A vacation rental permit is not required for the following:
•
1) A vacation rental.of_adwelling unit located within a controlled'access,gated community with\a',
homeowner's or property owner's association that expressly regulates or manages vacation,
rental uses.or
(
2 A vacation,rental of a dwelling unit within a multifamily building located within a multifamily
district, which has 24 hour on-site management or 24 hour on-site supervision that has
received an exemption from the planning director. To'meet these site management or super-
vision requirements, a`designated individual must..be physically located within the building or.
within 300 feet of the subject"building and must be available.at all times to respond to tenants'
and neighbors' complaints. To obtain an exemption under the provisions of this-section, the''
owneror agenerh s#•submit an application to the planning department in a form prescribed`by
the,planning_dir_ector
(cc Vacation rental manager license. A vacation rental manager license is required from the county
planning department for an individual to be a vacation rental manager under the provisions of this
section. The vacation rental manager shall be:
(1) The designated contact for responding to complaints made by neighbors against vacation
rental tenants;and
(2) Responsible for maintaining the guest register,leases,and official complaint response records
for a vacation rental unit as required by this section.
(d) Permit, license and fees.
(1) Special vacation rental permits will be issued by the planning director, or designee, upon
payment of a nonrefundable fee and submittal of a complete application in a form prescribed
by the planning director in accordance with subsection (f) of this section.
(2) Vacation rental manager licenses will be issued by the planning director, or designee, upon
payment of a nonrefundable fee and submittal of a complete application to the planning
department in a form prescribed by the planning director.
(3) The annual fees for the special vacation rental permit and vacation rental manager license
shall be established by resolution of the board of county commissioners.
(4) A decision to approve or deny a special vacation rental permit may be appealed to the planning
commission within 30 days pursuant to section 102-185.
(e) Regulations. All special vacation rental units, requiring a special vacation rental permit shall comply
with the following regulations at all times:
(1) No more than one motorized watercraft, including a jet ski or wave runner,shall be allowed at
each vacation rental unit. The watercraft may be moored at either an existing on-site docking
facility or stored on a trailer in an approved parking space.
(2) Vehicles, watercraft and trailers shall not be placed on the street or in yards. All vehicles,
watercraft and boat trailers must be parked or stored off-street in parking spaces specifically
LDC134:3
MISCELLANEOUS RESTRICTIONS
M7
Chapter 134 MISCELLANEOUS RESTRICTIONS
ARTICLE I. IN GENERAL
Sec. 134-1. Vacation rental uses. -
(e) Regulations.
designated and approved in the special vacation rental permit.One vehicle parking space
be required per bedroom or efficiency unit and one boat trailer space per vacation rental unit.
(3) No boat docked at a vacation rental property shall be chartered to a person other than
registered guests of the vacation rental unit or used for live-aboards, sleeping or overnight
accommodations. In addition, recreation vehicles shall not be used for sleeping or overnight
accommodations at the vacation rental unit.
(4) Occupants shall be prohibited from making excessive or boisterous noise in or about any
residential dwelling unit at all times. Noise, that is audible beyond the boundaries of the
residential dwelling unit, shall be prohibited between the hours of 10:00 p.m. and 8:00 a.m.
. weekdays and 11:00 p.m. and 9:00 a.m. on weekends.
(5) All trash and debris on the.vacation rental property,must be kept in covered.trash containers.
Each vacation rental unit must be equipped with et least four covered trash containers for such
,.purpose. Owners must post, and occupants must comply with, all trash and`recycling sched-
. ules and requirements applicable to the vacation rental unit. Trash containers must not be
placed by the street for pick-up until 6:00 p.m.the night before pick-up and;must be removed
from the area by the street by 6:00 p.m.the next day.
(6) A tenant's agreement to the forgoing rules and regulations must be made a part of each and
every lease under F.S.•§ 509A1 for any.vacation rental unit subject to the provisions of this
section. These vacation rental regulations governing tenant conduct and:userof the vacation
rental unit shall be prominently posted within each dwelling unit subject the provisions of this
section along with the warning that violations of any of the vacation rental regulations
constitutes a violation of this Code subject to fines.or punishable as a second degree
misdemeanor and is also grounds for immediate termination of the lease and eviction from the . ;
leased premises and criminal penalties under F.S. §509.151 ("defrauding an innkeeper"''",„ .:y.,
§ 509.141 ("ejection of undesirable guests"), F.S. § 509.142 ("conduct on premises) or F.S.
§509.143("disorderly conduct on premises, arrest").
(7) The owner or agent shall require a lease to be executed with each vacation rental use of the
property and maintain a guest and vehicle register listing all vacation rental occupants'names,
home addresses, telephone numbers, vehicle license plate and watercraft registration num-
bers. Each lease and this register shall be kept by the vacation rental manager and available
for inspection by county code enforcement personnel during business hours.
(8) Vacation rental units must be registered, licensed and meet all applicable state requirements
contained in ES. ch. 212 (Florida Tax and Revenue Act) and F.S. ch. 509 (Public Lodging
Establishments) as implemented by the Florida Administrative Code, as may be amended.
(9) The vacation rental use must comply with all State of Florida Department of Health and State
of Florida Department of Environmental Protection standards for wastewater treatment and
disposal.
(10) All vacation rental units shall have a vacation rental manager,who has been issued a vacation
rental manager license by the planning department as provided for in subsection (h) of this
section.The vacation rental manager shall reside within and be licensed for that section of the
county (Upper, Middle, and Lower Keys) where the vacation rental unit is located and be
available 24 hours per day, seven days a week for the purpose of promptly responding to
complaints regarding conduct or behavior of vacation rental occupants or alleged violations of
this section.Any change in the vacation rental manager shall require written notification to the
planning department and notification by certified return mail to property owners within 300 feet
of the subject dwelling.
(11) Complaints to the vacation rental manager concerning violations by(occupants of va 'tioj
rental units to this section shall be responded to within one hour.The neighbor who made t>f e
complaint shall be contacted by telephone or in person and informed as to the results of the
LDC134:4
MONROE COUNTY LAND DEVELOPMENT
Chapter 134 MISCELLANEOUS RESTRICTIONS
ARTICLE I. IN GENERAL
Sec. 134-1. Vacation rental uses.
(g) Notification to adjacent neighbors and permit,approval,issuance and appeal.
actions taken by the manager. A record shall be kept of the complaint and the manager's
response for a period of at least three months after the incident, which shall be available for
inspection by the county code enforcement department during business hours.
(12) The name, address, and telephone number of the vacation rental manager, the telephone
number of county code enforcement department and the number of the special vacation rental
permit shall be.posted and visible from the front property line of the vacation rental unit.
(13) The tenants'agreement with the rules of conduct shall be posted in a conspicuous location in
each vacation rental unit.
(f) Special vacation rental permit application: A complete special vacation rental permit application shall
include the following:
(1) The complete legal description,street address, RE number and location of the vacation rental
unit;
(2) Proof of ownership and the name, address and telephone number of each and every person
or enti with an ownership interest in the dwelling unit;
(3) An app oved Florida State Department of Health or Florida State Department of Environmen-
tal Protection inspection or certification of the adequacy of the sewage disposal system for use
as a vacation rental unit;
(4) The gross square footage of the dwelling unit, location and number of rooms, bedrooms,
bathrooms, kitchens, apartments, parking spaces and any other information required to
determine compliance with vacation rental requirements and compliance with this chapter;
(5) A valid and current Florida Department of Revenue sales tax identification number under F.S.
ch. 212 (Florida Tax and Revenue Act) and a valid and current permit, license or approval
under FS. ch. 509(public lodging establishments);
(6) The name, address, and telephone number of the vacation rental manager, including the
vacation rental manager's license number;
(7) The applicant shall sign a written statement granting authorization to county code enforcement
department to inspect the premises of the vacation rental unit prior to the issuance of the
special vacation rental permit and at any other time after issuance of such permit,concerning
compliance with the county land development regulations;
(8) The application shall bear the signature of all owners, all authorized agents and authorized
managers of the owners; and
(9) Any additional information required to determine compliance with the provisions of this
section.
(g) Notification to adjacent neighbors and permit, approval, issuance and appeal.
(1) The applicant or agent shall send a "Notice of Vacation Rental Use Application" by,certified
return mail to all property owners located within 300 feet of the dwelling unit which is the
subject of the special vacation rental permit application,not less than 30 days prior to the date
of approval of the application. The notice of application shall be in a form prescribed by the
planning director or his designee and shall clearly state the name, address and day/evening
telephone numbers of each and every vacation rental manager,agent,caretaker and owner of
the dwelling unit; the number of the county code enforcement department; and a copy of the
tenants agreement. Notice to the adjacent property owners must include the following
statement:
"You have the right to appeal a decision to approve or deny this special vacation rental permit
to the planning commission within 30 days under section 102-185.You may have other rights
that the county cannot enforce. Review of a special vacation rental permit application by the
LDC134:5
MISCELLANEOUS RESTRICTIONS
Chapter 134 MISCELLANEOUS RESTRICTIONS
ARTICLE I. IN GENERAL
Sec. 134-1. Vacation rental uses.
(g) Notification to adjacent neighbors and permit,approval,issuance and appeal.
county will consider the existence of valid private deed restrictions, restrictive covenants or '
other restrictions of record that may prohibit the use of the dwelling unit for vacation rental
purposes.You may wish to consult an attorney concerning these private rights."
(2) The applicant or agent shall provide proof to the planning department of submitting the"Notice
of Vacation Rental Use Application."The special vacation rental permit shall not be issued until
proof of this notification is provided and the special vacation rental permit has been approved
by the planning director after completion of an on-site inspection of the subject dwelling unit by
the code enforcement department. When approved by the planning director, the special
vacation rental permit shall not be issued until 30 days after the notices of application were
sent to all property owners located within 300 feet of the dwelling unit that is the subject of the
permit.
(h) Fines or revocation of special vacation rental use permit. A special vacation rental permit shall be
revoked by the planning commission and/or fines levied by the code enforcement special magistrate or
a court of competent jurisdiction after a finding of a violation by the permit holder of this section, the
special vacation rental permit or permit conditions or any material misrepresentation on the permit
application, after the owner is given notice and a hearing is held by the planning commission, code
enforcement special magistrate or a court of competent jurisdiction.
ii).. Duration and renewal of special vacation rental use permit. Special vacation rental use permits shall
• expire one year after the date of their issuance,unless renewed within 30 days of their expiration date.
Renewal of a special vacation use permit requires the owner or agent to submit an application in a form
prescribed by the planning director to the planning department and payment of a nonrefundable fee,
including proof of a current license and registration under F.S. ch. 509 and F.S. ch. 212.
Q) Vacation rental manager license application, issuance, renewal, fines, and revocation.
(1) An individual shall submit an application for a vacation rental manager license in a form
prescribed by the planning director accompanied with a payment of a nonrefundable fee.The
license shall be issued for a period of one year and renewable annually.The license shall be for
only one specific section of the county(Upper, Middle, or Lower Keys)and no individual shall
apply for or be issued more than one vacation rental manager license at a time.
(2) After notice is given to the vacation rental manager and a public hearing is held, a vacation
rental manager license shall be revoked by the planning commission and/or fines levied by the
code enforcement special magistrate or court of competent jurisdiction upon a finding of: a
total of two or more no responses to complaints registered by the public concerning tenants not
following the terms of the tenants agreement,during any single year of the vacation rental
manager's license; or two or more violations of this section which are pertinent to the duties
and responsibilities of a vacation rental manager.A vacation rental manager license shall be
revoked if the license holder is found in violation of any of the regulations in subsections(k)(1)
(k)(3) of this section.
(3) An individual who has had his license revoked shall not be eligible to resubmit an application for
obtaining a new vacation rental manager license until two years after the date of revocation of
his license.
(k) Prohibitions, enforcement, and penalties.
(1) It shall be unlawful for any landlord, tenant, agent or other representative of a landowner to
rent,lease,advertise or hold out for rent any dwelling unit for vacation rental use in any district
where a vacation rental use is prohibited, except as otherwise exempted under this section.
(2) It shall be unlawful for any landlord,tenant,agent or other representative of a landlord to re_
lease,advertise or hold out for rent any dwelling unit for a vacation rental use without a special --
vacation rental permit, except as otherwise exempted under this section.
LD.0 134:6
MONROE COUNTY LAND DEVELOPMENT
Chapter 134 MISCELLANEOUS RESTRICTIONS
ARTICLE II. SEXUALLY ORIENTED BUSINESSES
Sec. 134-21. Purpose and intent.
t'
(3) After the effective date of the ordinance from which this section is derived, leases, subleases,
assignments or any other occupancy agreements, for compensation for less than 28 days in
duration:
a. Shall not be entered into or renewed once they have expired or have terminated in any
district in which tourist housing use is prohibited or in any district in which a vacation
rental use is allowed unless a special vacation rental permit, building permit, inspec-
tion and certificate of occupancy for the vacation rental use(or for the conversion of an
existing dwelling unit to vacation rental use) are first obtained; and
b. Any pre-existing vacation rental uses shall not be considered a lawful nonconforming
use under section 102-56 and must be discontinued in any land use districts that
prohibit vacation rental uses no later than 30 days after the effective date of the
ordinance from which this section is derived.Except that a vacation rental use that was
established,and had obtained all of the required state and local permits and licenses,..
prior to September 15, 1986, or under any Code provisions that expressly allowed
vacation retail uses, may remain pursuant to section 102-56.
(4) Section 8-36 shall not bar code enforcement for new vacation rental violations occurring after
the effective date of the ordinance from which this section is derived.
(5) Prima facie evidence of vacation rental uses of a dwelling unit shall include:
a. Registration or licensing for short-term rental or transient rental use by the state under
F.S.chs.212(Florida Tax and Revenue Act)and 509(public lodging establishments);
b. Advertising or holding out a dwelling unit for vacation rental use;
c. Reservations, booking arrangements or more than one signed lease, sublease,
assignment, or any other occupancy or agreement for compensation, trade, or other
legal consideration addressing or overlapping any period of 28 days or less; or
d. The use of an agent or other third person to make reservations or booking arrange-
ments.
(6) A violation of any of the regulations in subsections (k)(1)—(k)(3) of this section shall be
punishable as a second degree misdemeanor and by a fine of up to$500.00 per day, per unit,
per violation.The code enforcement department may also enforce the terms of this section by
bringing a case before the special magistrate pursuant to section 8-37, or by citation under
section 8-35, F.S. § 162.21 (as may be amended), or 76-435, Laws of Florida (as may be
amended). If a code enforcement citation is issued, the fine shall be $250.00 for the first
offense and $500.00 for each subsequent offense.
(7) In addition to any other remedies available to the county(including code enforcement pursuant
to F.S.ch. 162).The county or any or other adversely affected party may enforce the terms of
this section in law or equity. Any citizen of the county may seek injunctive relief in a court of
competent jurisdiction to prevent a violation of this section or to revoke a special vacation rental
permit or vacation rental manager license,as set forth in this section.Attorney's fees and costs
incurred in an action to enforce these regulations concerning vacation rental uses may be
awarded to a substantially prevailing party at the discretion of the court.
(Code 1979, § 9.5-534; Ord. No. 4-1997, §22; Ord. No. 030-1999, §§ 1, 2; Ord. No. 44-2000, §4)
Secs. 134-2-134-20. Reserved.
ARTICLE II. SEXUALLY ORIENTED BUSINESSES
Sec. 134-21. Purpose and intent.
It is the purpose of this article to regulate sexually oriented businesses as to promote the health,safety,and
general welfare of the citizens of the county,and to establish reasonable and uniform regulations to prevent the
LDC134:7
OC, Corr. MISCELLANEOUS RESTRICTIONS
Chapter 134 MISCELLANEOUS RESTRICTIONS
ARTICLE II. SEXUALLY ORIENTED BUSINESSES
Sec. 134-21. Purpose and intent.
deleterious location and concentration of sexually oriented businesses within the unincorporated area of the
county.The provisions of this section have neither the purpose or intent of imposing a limitation or restriction on
the content of any communicative materials, including sexually oriented materials, or other aspects of
constitutionally protected speech. It is not the intent of the board of county commissioners to legislate with
respect to matters of obscenity in this article, as those matters are regulated by federal and state law,
particularly, F.S. ch. 800 and F.S. ch. 847. Similarly, it is not the intent or effect of this article to restrict or deny
access by adults to sexually oriented materials protected by the First Amendment or to deny the distributors and
exhibitors of sexually oriented entertainment access to their intended market. Neither is it the intent or effect of
this article to condone or legitimize the distribution of sexually oriented material.
(Code 1979, § 9.5-435; Ord. No. 027-2002, § 1)
Sec. 134-22. Definitions.
The following words,terms and phrases,when used in this article,shall have the meanings ascribed to them
in this section, except where the context clearly indicates a different meaning:
Sexually oriented bookstore means an establishment that rents and/or sells sexually oriented materials in
any form to the public and meets any one of the following three tests:
(1) The revenues from sexually oriented materials represent more than ten percent of the gross
revenues of the establishment over the same period;
(2) Twenty-five percent or more of the stock-in-trade consists of sexually oriented materials; or
(3) It advertises or recognizes itself in any forum as"XXX,""adult,""sex"or otherwise as a sexually
oriented business.
Sexually oriented business means individually or in combination a sexually oriented bookstore, sexually
oriented entertainment establishment, or sexually oriented motion picture theater as defined herein, and any
other establishment whose employees display or expose specified anatomical areas as defined herein.
Sexually oriented entertainment establishment means an establishment whose employees exhibit or display
specific sexual activities or expose specified anatomical areas while performing.
Sexually oriented materials means books, magazines, periodicals, or other printed matter, or photographs,
CD-ROMs or other devices used to record computer images, films, motion pictures, video cassettes, digital
video disks(DVDs),slides or other visual representations or recordings which have as their primary or dominant
theme matter depicting, illustrating, describing or relating to specified sexual activities or specified anatomical
areas or instruments, devices or paraphernalia which are designed for use in connection with specified sexual
activities. .
Sexually oriented motion picture theater means an establishment designed to permit the viewing of motion
pictures and other film material that has as its primary or dominant theme matters depicting, illustrating or
relating to specified sexual activities for observation by the patrons thereof.
Specified anatomical areas means:
(1) Less than completely and opaquely covered: human genitals, pubic region,the human
buttocks, and female breast below a point immediately above the top of the areola; and/or
(2) Human male genitals in a discernibly turgid state, even if completely covered.
Specified sexual activities means human genitals in a state of sexual stimulation or arousal or acts of human
masturbation, sexual intercourse, sodomy, bestiality, or fondling or other erotic touching of human genitals,
pubic region, buttocks, or female breasts.
(Code 1979, §9.5-436; Ord. No. 027-2002, § 1)
LDC134:8
MONROE COUNTY LAND DEVELOPMENT OC, Corr.
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